{"itemid":"001-77392","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF DVOYNYKH v. UKRAINE","importance":3,"conclusion":"Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant was arrested on suspicion of theft and abuse of power .","On DATE the applicant was placed in the Simferopol Temporary Detention Centre No . CARDINAL ( the \u201c GPE \u201d ) .","On DATE the applicant was released on bail subject to an undertaking not to abscond . According to the applicant , he was released because of his poor state of health .","On DATE the applicant was hospitalised . He was found to suffer from second degree hypertension , hyperpiesia , and other vascular diseases , and underwent medical treatment until DATE .","On DATE the prosecutors decided to arrest the applicant on the same charges of theft and abuse of power . On DATE the applicant was placed in the Simferopol SIZO .","On DATE the applicant was examined by a paramedic , a general practitioner and a dermatologist , who all noted in the medical records , submitted by the Government , that the applicant did not have complaints about his state of health . The paramedic noted that the applicant suffered from coronary heart disease and that he had to be further examined by a doctor . The general practitioner noted that the applicant suffered from coronary heart disease and angina of effort . The dermatologist noted that the applicant was healthy .","According to the same records , on DATE the applicant was further examined by a general practitioner and a dermatologist . They both noted that the applicant did not have complaints about his state of health . On DATE , DATE , and DATE the applicant underwent CARDINAL X - ray examinations , none of which revealed any pathological changes in his heart or lungs .","In his letter of DATE , the applicant requested the President of the Zaliznodorozhnyy ORG of PERSON to release him on bail , alleging unlawfulness of his detention . The applicant maintained that he suffered from vascular diseases , stomach ulcer , and adenoma of the prostate , and that he required urgent medical treatment , which he could not receive in GPE . On DATE , CARDINAL DATE the applicant made similar submissions to ORG and the President of ORG of PERSON , respectively .","On DATE the applicant 's lawyer challenged before the ORG the decision of DATE . On DATE the court refused to consider the lawyer 's complaint on the ground that the criminal case against the applicant had been submitted to ORG for consideration . ORG further held that its decision was final and was not subject to appeal .","According to the Government , on DATE the applicant requested medical aid and was immediately examined by a doctor , who found that the applicant suffered from a severe respiratory tract infection . The applicant received the necessary treatment , so that on CARDINAL DATE the medical examination did not reveal any symptoms of such illness .","On DATE the applicant was released from the Simferopol SIZO .","On DATE the applicant was placed in a hospital , where he underwent an abdominal surgery . According to the medical records of DATE , submitted by the applicant , he suffered from several vascular and stomach diseases .","The applicant stated that he had been detained in the cells of QUANTITY , which had been occupied by CARDINAL inmates at the same time , some of whom had suffered from tuberculosis and AIDS . The applicant had had to take turns to sleep because there had been not enough beds . The natural light or fresh air virtually did not go through because of the shutters on the windows and the windows ' size , while the electric light was very poor and it was on all the time . The cells were dirty and infested with pests , cockroaches and bedbugs . There was no access to hot water in the cells and cold water did not reach the cells higher than those on the forth floor . There was no heating in the cells .","The applicant maintained that he had had DATE walks which were limited to TIME outside in an area not larger than a cell . The area was not protected from direct sunlight . The applicant also stated that he had not been able to purchase medicines or enough food from outside of the GPE , while the quality of food provided in the GPE had been unsatisfactory .","The applicant further maintained that he had spent TIME in the special cells for detainees in transit , which measured QUANTITY , together with CARDINAL other persons , the majority of whom had been smoking . These cells were deprived of natural light and fresh air .","The Government submitted that from DATE until DATE the applicant was detained together with CARDINAL other detainees in the cell no . CARDINAL , which measured QUANTITY ; from DATE until CARDINAL DATE \u2013 in the cell no . CARDINAL of QUANTITY together with CARDINAL other detainees ; and from DATE until CARDINAL DATE in the cell no . CARDINAL of QUANTITY occupied by CARDINAL persons . The Government acknowledged the problem of overcrowding in the Simferopol SIZO at the material time . They however maintained that the cells were equipped with the necessary number of beds , lavatories , tables , chairs , electric light , etc . There were windows which allowed access of daylight and fresh air . In general , the conditions of the applicant 's detention corresponded to the relevant hygiene and sanitation standards . The Government submitted photographs of several cells in the Simferopol SIZO which had been taken in DATE .","The Government further maintained that the applicant had had DATE walks for TIME and an TIME ' non - stop sleep DATE .","On DATE ORG of PERSON found the applicant guilty of aggravated theft and abuse of power , and sentenced him to DATE imprisonment under a special high security regime ( \u201c \u043f\u043e\u0441\u0438\u043b\u0435\u043d\u043e\u0433\u043e \u0440\u0435\u0436\u0438\u043c\u0443 \u201d ) . The court also ordered confiscation of the applicant 's property and deprived him of the right to occupy positions involving administrative functions for DATE .","On DATE ORG of GPE upheld the decision of DATE .","On DATE the Governor of the Simferopol SIZO , upon the applicant 's motion , allowed him to work as an employee at the maintenance department of the Simferopol SIZO , while serving his sentence . According to the records submitted by the Government , the applicant 's entire remuneration for his work at the Simferopol SIZO had been used to cover his expenses for food and other everyday necessities .","On an unspecified date the President of ORG of GPE lodged a request with the ORG of that court , seeking initiation of supervisory review of the case .","On DATE the ORG allowed the request and partly changed the decisions of DATE and CARDINAL DATE . It found the applicant guilty of abuse of power and sentenced him to DATE imprisonment . The ORG also deprived him of the right to occupy positions involving administrative functions for DATE . It further released the applicant from serving his prison sentence on the ground that he suffered from vascular diseases and that he was not dangerous to the society .","Under LAW and DATE , the LAW is directly applicable . There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of LAW .","Under LAW and CARDINAL , everyone is guaranteed the right to challenge the decisions , actions or omissions of the ORG authorities , local self - government bodies , officials and officers of a court of law . After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which GPE is a member or participant .","Article CARDINAL \u00a7 CARDINAL provides that a convicted person enjoys all human and citizens ' rights , subject only to restrictions determined by law and established by a court ruling .","According to LAW , pre - trial detention is a preventive measure in respect of an accused , a defendant or a person suspected of having committed a crime punishable with imprisonment , or a convicted person whose sentence has not yet become final . Such detention shall be in compliance with LAW , other international norms and standards of treatment of detainees .","Under LAW , convicted persons , upon their written motion , may be granted leave to stay in a temporary detention centre in order to carry out logistics related work .","Article CARDINAL provides inter alia that persons placed in detention shall be searched , medically checked , and photographed . Their fingerprints must be taken . They shall be informed about their rights and obligations , as well as about the requirements of the detention regime . Detainees ' personal belongings and correspondence must be checked . They are not allowed to keep money or valuables . The money shall be transferred to their bank accounts , while their valuables shall be deposited in the detention centre .","Pursuant to LAW , detainees have the following rights :","to be defended in accordance with the rules of criminal procedure law ;","to familiarize themselves with the rules of detention ;","to take a TIME DATE walk ;","to receive twice a month a parcel weighing QUANTITY and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery ;","to buy foodstuffs and toiletries to the value of DATE statutory minimum wage , paying by written order , as well as unlimited amounts of stationery , newspapers and books ;","to use their own clothing and footwear and to keep documents and notes related to their criminal cases ;","to use TV sets received from relatives or other persons and board games , newspapers and books borrowed from the library of the detention centre and bought at shops ;","to perform individually religious rituals and use religious literature and objects made of semi - precious materials pertaining to their beliefs , provided that this neither leads to a breach of the internal rules of the detention centre nor restricts the rights of other persons ;","to sleep TIME a night , during which they shall not be required to participate in proceedings or to do anything else , except in cases of extreme emergency ;","to lodge complaints and petitions and send letters to the ORG authorities and officials in accordance with the procedure prescribed by LAW .","Under LAW , detainees shall be provided with everyday conditions that meet sanitary and hygiene requirements . The cell area for CARDINAL person may not be QUANTITY . Detainees are to be supplied with meals , individual sleeping - places , bedclothes and other types of everyday provisions free of charge and according to the norms laid down by ORG . In case of need , detainees shall be supplied with clothes and footwear of a standard form . There shall be medical assistance and preventive treatment organised in accordance with the health care legislation and the rules developed by ORG , ORG , and ORG .","Article CARDINAL provides that detainees , upon their consent , may be engaged in work , which shall be remunerated in accordance with the wages existing in public economy . There may be contributions made in respect of writs of execution out of the detainees ' earnings . Detainees may also be engaged , for no longer than TIME a day and when they do not take part in the investigative proceedings , in a non - remunerated work necessary for maintaining proper conditions of their detention .","Under LAW , the prosecutors shall supervise observance of laws in detention facilities . The administration of the detention centres must comply with the resolutions and instructions issued by the prosecutors in respect of conditions of detention .","According to LAW sentenced to DATE imprisonment may , in exceptional cases and upon their written motion , stay in a temporary detention centre in order to carry out logistics related work .","The visit of the ORG delegation to GPE took place from DATE , in the course of which the delegation inspected inter alia FAC . CARDINAL in PERSON . The ORG recorded \u201c situations of grave concern in terms of conditions of detention \u201d and those at the PERSON were \u201c particularly telling \u201d . It was noted that substantial overcrowding was one of the major deficiencies at the SIZOs . The ORG stressed that the NORP authorities should \u201c increase the current standard of CARDINAL m\u00b2 of living space per prisoner to CARDINAL m\u00b2 \u201d ( paragraph CARDINAL ) .","NORP The relevant parts of the ORG report read as follows ( emphasis added by the ORG ) :","\u201c DATE . Simferopol GPE No . CARDINAL , located within the town , was built at DATE , and had a capacity of CARDINAL persons in CARDINAL cells . At the time of the visit , it accommodated CARDINAL persons , of which CARDINAL women and CARDINAL minors . While the majority of the prison population was on remand , there were CARDINAL sentenced prisoners , including CARDINAL sentenced to life imprisonment .","Prisoners were held in CARDINAL blocks , CARDINAL dating back to DATE and the other of more recent design , built in DATE .","The detention areas reserved for women and juveniles ( both male and female ) offered the best material conditions , in terms of natural light , artificial lighting , cleanliness and furniture . In particular , the ORG welcomes the fact that the shutters covering the cell windows had been removed shortly before the visit , thereby providing not only adequate access to natural light , but also much better ventilation .","Major deficiencies nevertheless remained . In particular , the occupancy rate was excessive in many cells ( for example , CARDINAL women in an area of QUANTITY m\u00b2 , CARDINAL in an area of CARDINAL m\u00b2 ) and , in addition , not all women had their own beds .","The remainder of the prison population ( adult men , most of them on remand ) were subjected to appalling material conditions . These inmates were crammed into severely overcrowded dormitories ( for example , CARDINAL prisoners in an area of CARDINAL m\u00b2 and up to CARDINAL in an area of CARDINAL m\u00b2 ) , with virtually no natural light , often poor artificial lighting and inefficient ventilation . The air was so stifling that most of the inmates remained in their underclothes . Furthermore , the establishment was unable to provide each prisoner with a bed ; consequently , in many dormitories , inmates had to take turns to sleep .","While some dormitories had been freshly painted , many others were dirty and infested with cockroaches and other vermin . In - cell toilets ( as a rule only partially partitioned ) were in an extremely poor state .","The adult men had also greater difficulty maintaining satisfactory personal hygiene , since basic products were severely rationed ( for example , CARDINAL g of soap per month as against CARDINAL g for women and CARDINAL g for minors ) . Further , they were not issued with toilet paper , which was restricted to women and minors . In practice , they were largely dependent on their families in this respect .","In addition , as at ORG , arrangements for cleaning clothes were unsatisfactory : all prisoners were compelled to wash them in cold water in their cells .","As regards activities , efforts were made to offer minors some educational activities ( secondary education ) , particularly with the aid of local authorities , which provided school textbooks and volunteer teachers who visited the GPE in their free time . Further , the staff assigned to minors performed work of a social nature with them , which included teaching them behavioural norms and the rules of day - to - day living . Apart from this , minors had no other form of organised purposeful activities ( such as sporting and cultural activities ) .","The rest of the prison population had no real form of organised activities . Apart from CARDINAL inmates assigned to prison chores , prisoners had no work or sporting or recreational activities . In practice , the only time they spent out of their cells was for TIME open air exercise per day , taken under conditions which did not allow real exercise ( the exercise areas ranged from CARDINAL m\u00b2 to a maximum of CARDINAL m\u00b2 ) .","To sum up , the majority of prisoners were locked up for almost the whole of DATE in severely overcrowded and insalubrious cells , without being offered any activities worthy of the name . Under such conditions , to be incarcerated in PERSON No . CARDINAL could only be a stultifying experience .","Lasting improvements to the situation at GPE No . CARDINAL will inevitably take time . This will very largely depend on a substantial reduction of overcrowding . Once more , the delegation 's findings demonstrate the importance and urgency of implementing the recommendation made in paragraph CARDINAL above .","Nevertheless , measures can and must be taken without delay to palliate certain of the most serious deficiencies observed .","As regards material conditions , the ORG recommends that steps be taken :","- to provide all inmates ( men and women ) with adequate amounts of personal hygiene products and cleaning products for their dormitories , and adequate facilities for cleaning their clothes ;","- to ensure that each inmate has a bed or sleeping place ;","- to ensure that material conditions throughout both detention blocks reach the standards prevailing in the women 's and minors ' sections as soon as possible , in terms of natural light ( by removing the shutters on the windows ) , artificial lighting , ventilation and cleanliness .","As regards activities , the ORG recommends that high priority be given to the development of activity programmes for minors to enable them to enjoy a full programme of educational , recreational and other purposeful activities designed to bring out their potential for social ( re)integration ; physical education should constitute an important part of that programme .","As regards adult inmates , the ORG recommends that ways of providing them with a minimum of recreational and sporting activities be explored as of now . It is axiomatic that as overcrowding is reduced , fuller programmes of activities must be introduced . In this regard , the ORG draws attention to the long - term objectives for activities set out in CARDINAL and CARDINAL respectively of the reports on DATE visits , which apply to all the GPE 's in the country .","Lastly , the ORG recommends that the design of the exercise yards be reviewed with a view to enlarging them . \u201d","As regards medical assistance offered to detainees at the Simferopol GPE , the ORG found as follows :","\u201c ORG . The DATE visit again highlighted the extreme inadequacy of the arrangements for the supply of appropriate medicines ( for example , Colony No . CARDINAL had no medicines in stock at the time of the visit , while GPE No . CARDINAL did not have a sufficient amount or variety of medicines and none for the treatment of tuberculosis ) . Despite the contributions made by ORG out of its own budget , prisons depended mainly on the humanitarian aid they could secure and on prisoners ' families .","As the ORG has repeatedly emphasised , this solution is not satisfactory , and is intolerable where the treatment of certain diseases such as tuberculosis is concerned . ORG must point out yet again that it is the responsibility of the ORG to ensure that , irrespective of the prevailing economic circumstances , persons in its custody have access to basic elements of health - care , including the medicines required by their state of health ...","Simferopol GPE No . CARDINAL had provision for CARDINAL full - time medical doctors ( general practitioners and specialists in pneumology , psychiatry , gynaecology and dermatology , as well as a dentist ) . However , CARDINAL general practitioner post was vacant . Moreover , the gynaecologist was an outside consultant and many women had no access to this specialist because they were unable to pay for the consultations . Such a situation is not acceptable . As regards feldshers , there were CARDINAL posts , of which CARDINAL were filled .","Such a team can hardly be deemed sufficient to provide adequate health - care to CARDINAL prisoners , in particular as regards the number of feldshers . The ORG recommends that the vacant doctor 's and feldshers ' posts be filled as soon as possible , and that the question of women 's access to gynaecological care be immediately reviewed .","The examination \/ consultation rooms were modestly equipped , but clean . As regards the supply of medicines , reference should be made to the recommendation in paragraph ORG ...","Medical screening of newly arrived prisoners was inadequate in several of the establishments visited . It was a perfunctory medical check confined , at best , to weighing the prisoner and measuring his blood pressure ; moreover , at the Simferopol SIZO , this task was left to the feldsher alone , who consulted a doctor only if this was expressly requested by the prisoner .","Every newly - arrived prisoner should be properly interviewed and physically examined by a medical doctor as soon as possible after his \/ her arrival ; save for in exceptional circumstances that interview \/ examination should be carried out on DATE of admission , especially in so far as remand establishments are concerned . Such medical screening on admission could also be performed by a feldsher reporting to the doctor . The ORG recommends that steps be taken to ensure that this is the case in all penitentiary establishments .","As regards the recording of injuries observed on prisoners , reference should be made to the recommendations made in paragraph CARDINAL above and in paragraph CARDINAL of the report on its DATE visit .","In CARDINAL of the establishments visited ( PERSON and ORG . CARDINAL ) , neither the medical examinations on arrival nor those performed during detention were confidential , since prison staff attended the consultations . The ORG recommends that all medical examinations of prisoners ( whether on arrival or at a later stage and irrespective of the category of prisoner ) be conducted out of hearing and - unless the doctor concerned requests otherwise in a particular case - out of the sight of prison officers ; the same rule should apply during treatment provided to prisoners .","The DATE Report also contains the findings of the ORG concerning the conditions in which detainees were being transferred from CARDINAL place of detention to another :","\u201c CARDINAL . Concerning road transport of prisoners , the delegation inspected CARDINAL ORG vans in GPE . Each vehicle had collective compartments and an individual compartment . The individual compartments were as small as CARDINAL m\u00b2 ; in paragraph CARDINAL of the report on its DATE visit , the ORG has already recommended that the practice of placing prisoners in compartments of this size cease . Conditions in the vehicle were also similar in other respects to those described in the aforementioned paragraph of the report on the DATE visit ( poor artificial lighting , inadequate ventilation ) .","Concerning rail transport , the delegation examined the facilities in CARDINAL of the special carriages used for transporting prisoners . It had compartments measuring CARDINAL and CARDINAL m\u00b2 , with folding benches . The authorised capacity in the smaller compartments was CARDINAL persons for journeys lasting not TIME , and CARDINAL persons for longer journeys . In the larger CARDINAL ORG compartments , CARDINAL persons could be accommodated for short distances and CARDINAL for long distances . The compartments had some access to natural light ; however , ventilation was poor . The toilets for prisoners were in a disgusting state , clogged with excrement , despite the fact that prisoners were due to board TIME for a long journey .","There were no arrangements to provide prisoners with food , even over long distances ; as for drinking water , only a small container was provided to supply the prisoners throughout the journey .","The manner in which prisoners are transported , particularly by train , is unacceptable , having regard inter alia to the material conditions and possible duration of travel .","The ORG recommends that conditions of prisoners ' transport in GPE be reviewed in the light of the foregoing remarks . As an immediate measure , it recommends that the NORP authorities take steps to :","- significantly reduce the maximum number of prisoners per compartment in a railway carriage : CARDINAL m\u00b2 compartments should never CARDINAL persons , and CARDINAL m\u00b2 compartments never CARDINAL persons ;","- ensure that during rail transport , prisoners are supplied with drinking water and that for long journeys , the necessary arrangements are made for them to be properly fed ;","- no longer use CARDINAL m\u00b2 compartments in vans for transporting prisoners . \u201d"],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23863","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2004,"docname":"SHANNON v. the UNITED KINGDOM","importance":1,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is an actor and at the relevant time starred in \u201c GPE 's Burning \u201d , a popular NORP drama series . In or DATE , M , a journalist for a tabloid newspaper called \u201c News of the World \u201d , received a telephone call from an informant stating that the applicant had been supplying drugs in ' show business ' circles . M 's assistant approached the applicant 's agent to offer the applicant employment as a celebrity guest at the opening of a TIME - club in GPE .","A meeting was arranged at ORG on DATE and audio and video surveillance equipment was placed in the hotel room in order to record events . M posed as a sheikh with a number of other newspaper staff posing as his entourage and the plan was to steer the conversation towards the possibility of the applicant supplying drugs to the sheikh . During the meeting , M raised the topic of drugs and extensive conversation ensued about cocaine use . M then said that he required cocaine for a party in GPE and the applicant stated that he could supply the cocaine . He reconfirmed this offer several times . M 's assistant , posing as the sheikh 's personal assistant , asked the applicant whether he could supply cannabis for her that TIME . The applicant responded affirmatively and stated that he could go and get a sample . The party then went to dinner where the conversation was not recorded .","According to M , the applicant used M 's mobile telephone to arrange to collect samples of cocaine and cannabis . The applicant states that he had difficulty in obtaining the drugs and first asked his agent and then a friend . He finally located the drugs through someone that his friend knew . The applicant 's agent later gave evidence that the applicant had telephoned him during dinner in an excited state saying that the sheikh wanted him to get some cocaine . The applicant 's agent asked the applicant if he knew what he was doing and made it clear that he would not get involved . The applicant got angry and stated that he would arrange it himself . M gave the applicant GBP CARDINAL for the samples and the applicant and his friend went to collect the drugs from the dealer with a car and driver provided by PERSON applicant then returned to the hotel and gave the drugs to PERSON left without any arrangement being made for a further meeting or further supply of drugs .","On DATE a lengthy article by M appeared in the ' News of the World ' under the front page headline of \u201c GPE 's ORG is Cocaine Dealer \u201d . The article detailed the events of DATE and was largely based on the recorded material . At the end of the article , M offered to make the material available to the police . M had previously carried out operations of this type before and later stated ( during the criminal proceedings described below ) that his actions had led to CARDINAL successful criminal convictions .","The police subsequently took over the investigative material from the newspaper and arrested the applicant on DATE . The police took witness statements and analysed the drugs provided but relied on the evidence collected by the newspaper . The applicant admitted that he was formerly a cocaine user but stated that he no longer used the drug . He did not have any prior criminal record . On DATE the applicant was charged with CARDINAL count of supplying a Class A controlled drug , CARDINAL count of supplying a Class B controlled drug and CARDINAL count of offering to supply a Class A controlled drug ( the offer to provide cocaine for the supposed sheikh 's party ) . M refused from the outset to disclose the identity of his informant to the prosecution or the court relying on section CARDINAL of the Contempt of Court Act DATE which provides , as relevant , that the court can not require the disclosure of the source of information in a publication unless the interests of justice require .","Before the trial began , the applicant applied under section CARDINAL of ORG ) DATE for the exclusion of the evidence obtained by M on the grounds that it had been obtained by entrapment and therefore its admission would adversely affect the fairness of the trial . Following a voire dire , the trial judge refused the application on DATE on the grounds that the applicant was not entrapped since he volunteered , offered and agreed to supply drugs without being subject to pressure . Further , even if the applicant had been entrapped , that could not constitute a defence in LANGUAGE law and the admission of the evidence would not adversely affect the fairness of the proceedings under the terms of section CARDINAL of PACE .","Following the ruling of CARDINAL DATE , the applicant pleaded guilty to all CARDINAL charges . However , he later changed his plea to not guilty and a trial was held from DATE to CARDINAL DATE . The applicant requested the prosecution to disclose any material in its possession regarding ORG operation and the original informant , but no further disclosure was made . The applicant then made an oral application for an order requiring M to disclose the identity of his informant on the basis that this knowledge was necessary for the defence to be able to put the best case forward for the exclusion of prosecution evidence according to section DATE of PACE . The applicant believed that the informant may have been someone with a personal grudge against the applicant and therefore the motive for the expos\u00e9 could be called into question . The trial judge ruled that it was not relevant or necessary for the identity of the informant to be disclosed on the grounds that there was agreed evidence of the meeting between the applicant and M and that the informant had played no further role in events after the initial telephone conversation with PERSON trial judge therefore concluded that the non - disclosure of the identity of the informant did not affect the fairness of the trial as a whole .","On DATE the applicant was convicted of supplying a Class A and a Class B controlled drug but was acquitted of the third charge of offering to supply . On DATE the applicant was sentenced to DATE imprisonment on each count , the sentences to run concurrently . A confiscation order was also made for GBP CARDINAL and the applicant was ordered to pay GBP MONEY towards the costs of the prosecution .","The applicant applied for leave to appeal on the basis that the trial judge erred in refusing to order the disclosure of the identity of M 's informant and in refusing to exclude the prosecution evidence according to common law or section CARDINAL of PACE . The application for leave to appeal was refused by a single judge of ORG but his renewed leave application was granted by the full ORG on CARDINAL DATE after an oral hearing .","ORG dismissed the applicant 's appeal on DATE on the grounds that the trial judge had not erred in the CARDINAL rulings . ORG agreed that the trial judge was entitled to refuse to order the disclosure of the identity of M 's informant since it was not necessary in order to enable the applicant to put forward his defence . The court stated that the applicant 's argument that the newspaper may have acted for ' grudge ' reasons was \u201c an insubstantial and insufficient basis on which to order immediate disclosure of the identity of the informant ... \u201d .","After reviewing the authorities , ORG concluded that the fact of entrapment or enticement would not itself be sufficient to require exclusion of the evidence under section CARDINAL but rather that evidence gained by entrapment would only be excluded if its admission adversely affected the procedural fairness of the trial . The court considered that :","\u201c ... the ultimate question is not the broad one : is the bringing of proceedings fair ( in the sense of appropriate ) in entrapment cases . It is whether the fairness of the proceedings will be adversely affected by admitting the evidence of the agent provocateur or evidence which is available as the result of his action or activities . So , for instance , if there is good reason to question the credibility of evidence given by an agent provocateur , or which casts doubt on the reliability of other evidence procured by or resulting from his actions , and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available , admissible and ' untainted ' evidence , then the judge may readily conclude that such evidence should be excluded . If on the other hand , the unfairness complained of is no more than the visceral reaction that it is in principle unfair as a matter of policy , or wrong as a matter of law , for a person to be prosecuted for a crime which he would not have committed without the incitement or encouragement of others , then that is not itself sufficient , unless the behaviour of the police ( or someone acting on behalf of or in league with the police ) and\/or the prosecuting authority has been such as to justify a stay on grounds of abuse of process \u201d .","ORG also examined this ORG 's judgment in PERSON v. GPE ( judgment of DATE , Reports CARDINAL-IV ) but did not interpret the case as authority for the proposition that any incitement or instigation of a crime by an agent provocateur rendered any trial by definition \u201c unfair \u201d . In the view of ORG , the statement in that judgment to the effect that the intervention by the police and the use of the evidence so obtained \u201c meant that , right from the outset , the applicant was definitively deprived of a fair trial \u201d was to be read in its context , as the ORG 's conclusion on the facts and circumstances of the particular case . If it was not so read , it was not clear how the statement was to be reconciled with the ORG 's observation that the admissibility of evidence was primarily a matter for regulation by national law and that as a general rule it was for national courts to assess the evidence before them . It was further noted that the judgment in the PERSON case was \u201c specifically directed to the actions of police officers and the safeguards ( in the form of judicial controls ) properly to be applied to them in the course of their investigations as agents of the ORG \u201d and made clear that the line was to be drawn at the point of actual incitement . In the present case , the trial judge ( who was in any event not dealing with the activities of the police ) had correctly found that the evidence fell short of establishing actual incitement or instigation of the offences concerned .","In any event , ORG was satisfied that although the applicant was encouraged in a broad sense by the setting and opportunity presented , he voluntarily and readily applied himself to the trick by volunteering to supply the drugs and therefore , there was no entrapment . The court further noted that :","\u201c ... by reason of the appellant 's obvious familiarity with the current price of cocaine and his ready advice as to obtaining it in the quantity and to the quality required , he displayed a familiarity with the dealing scene which itself suggested a predisposition to be part of it \u201d .","The court pointed out that what was said or done by the newspaper staff at various points may have amounted to enticement but , even so , the applicant had a clear opportunity to withdraw from any enticement and the admission of the evidence did not have an adverse effect on the procedural fairness of the trial . In this regard , the court noted that the telephone call made by the applicant to his agent during dinner showed that :","\u201c ... whatever the truth as to who first raised the question of drugs supply during dinner , the appellant remained eager rather than reluctant to take advantage of the opportunity with which he was presented \u201d .","ORG noted that the trial judge imposed a lenient sentence \u201c having taken into account in the [ applicant 's ] favour the full circumstances in which the offences were committed \u201d .","ORG Cmd . CARDINAL ) defined an \u201c agent provocateur \u201d as :","\u201c a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such an offence \u201d .","Beyond this statement , there is no clear definition of entrapment in LANGUAGE law but the key factor appears to be acts or words amounting to enticement to commit an offence followed by the passing of information to the police .","The principal authorities on entrapment have concentrated largely on entrapment by law enforcement officers but the domestic courts have so far applied the same principles to cases of private entrapment , that is , entrapment by persons who are not agents of the ORG .","The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law ( NORP v. PERSON [ DATE ] Appeal Cases p.CARDINAL , ORG judgment ) .","There are , however , CARDINAL ways in which it is possible to prevent evidence obtained by entrapment from forming the basis of criminal proceedings . First , a trial judge has a discretion at common law to order a stay of the prosecution on the grounds of abuse of process where it appears that evidence was obtained by entrapment , as ORG affirmed in NORP v. Loosely ; Attorney - General 's Reference ( No . DATE ) ( [ DATE ] ORG CARDINAL ) , a judgment which followed and approved the case - law as it stood at the time of the applicant 's trial , including the judgment of ORG in NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p.CARDINAL ) . In Loosely , Lord PERSON of GPE explained :","\u201c My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive , law enforcement functions of the courts and thereby oppress citizens of the state . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of state power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which state conduct of this nature could have are obvious . The role of the courts is to stand between the state and its citizens and make sure this does not happen \u201d .","Similarly , in ORG v. PERSON ( [ DATE ] CARDINAL Cr . App . CARDINAL at p.CARDINAL ) , Lord Chief Justice PERSON stated that domestic courts :","\u201c recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he had only committed because he had been incited , instigated , persuaded , pressurised or wheedled into committing it by a law enforcement officer . On the other hand , it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law , of which the defendant freely takes advantage , in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else \u201d .","In GPE , their ORG agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or \u201c state created crime \u201d . In each case it was for the judge , having regard to all the circumstances , to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute . The court stated that the police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing . In the cases cited above , the courts were concerned with allegations of an abuse of power by agents of the ORG .","The second way in which evidence obtained by entrapment may be excluded from criminal proceedings is under section CARDINAL of ORG which provides as relevant :","\u201c In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , and including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . \u201d","In Loosely ( cited above ) , ORG stated that courts may use section CARDINAL to exclude evidence obtained by an undercover police officer where , inter alia , the defendant would not have committed the offence without the police incitement . This confirmed the position set out by ORG in NORP v. Smurthwaite ; PERSON ( ( DATE ) vol . CARDINAL ORG p. CARDINAL ) that section CARDINAL did not change the rule that while entrapment or the use of an agent provocateur does not constitute a defence in LANGUAGE law , evidence obtained from entrapment might in appropriate cases be excluded under the terms of that section .","In ORG judgment in Loosely , Lord Justice PERSON stated that :","\u201c if an accused person 's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence , or by that person being trapped into committing the offence by a law enforcement officer , then the evidence of the law enforcement officer should be excluded by the trial judge exercising his power under section CARDINAL of the DATE LAW .","As regards the effect of LAW on the domestic law on entrapment , in ORG v. PERSON ( cited above ) , ORG considered the judgment in PERSON and concluded that LAW did not provide a ground for the exclusion of evidence of an undercover officer who had merely afforded an accused the opportunity to commit an offence without exerting any pressure upon him to do so . In PERSON ( cited above ) , ORG considered that there was no appreciable difference between the requirements of LAW and current LANGUAGE law .","The domestic courts have not so far drawn a clear distinction between entrapment by police officers and entrapment by private persons including journalists . In NORP v. GPE and ORG ( DATE ) Crim . L.R. CARDINAL , a journalist bought counterfeit currency from the appellants and then handed the evidence to police . In upholding the trial judge 's decision not to exclude the evidence under section CARDINAL of PACE , Lord PERSON stated that :","\u201c Although one might dislike the activities of certain informants or journalists , the criterion for admissibility did not depend on this or that motive of a newspaper to sell a story or make money . It was clear that there was no defence in LANGUAGE law of entrapment , and it made no difference whether an undercover police officer or a journalist was involved . The question under section CARDINAL of ORG was one of fairness . \u201d","In NORP v. PERSON ( ( DATE ) CARDINAL Cr . App . R.(S. ) CARDINAL ) , ORG indicated that the fact of entrapment may be relevant to the sentence imposed . In that case , journalists approached the appellant and requested her to obtain heroin on behalf of the sheikh for whom they worked . The court stated :","\u201c We can not ignore the fact that the appellant was set up to commit the offence . She was tempted by the journalists to obtain and to supply the drug to them ... The element of entrapment by journalists [ should have been ] properly reflected in the sentence that was imposed \u201d .","A case which was decided after that of the present applicant departed from previous cases in suggesting that a distinction should be drawn between entrapment by law enforcement officials and entrapment by journalists . In NORP v. PERSON and ORG ( ( DATE ) Crim . L.R. CARDINAL ) , the appellants were approached by a journalist and invited to meet his employers , CARDINAL ' wealthy NORP ' , and supplied cocaine during the meeting . The appellants submitted that the proceedings should have been stayed for abuse of process . In dismissing the appeals , ORG stated :","\u201c ... it is of some importance to note that what the court seeks not to condone is \u201c malpractice by law enforcement agencies \u201d which \u201c would undermine public confidence in the criminal justice system and bring it into disrepute \u201d . Obviously that is not a consideration which applies with anything like the same force when the investigator allegedly guilty of malpractice is outside the criminal justice system altogether ...","... [ The trial judge ] made CARDINAL discernible error favourable to the defence in that he seems to have accepted that commercial lawlessness and executive lawlessness should be treated in the same way ... that is not correct ... \u201d .","ORG therefore indicated that a more flexible test for abuse of process would be applied to entrapment by journalists ( \u201c commercial lawlessness \u201d ) than to entrapment by law enforcement officers ( \u201c executive lawlessness \u201d ) .","This approach conforms to the distinction drawn by ORG in NORP v. PERSON and PERSON ( ( DATE ) CARDINAL Cr . App . PERSON ) between exclusion under section CARDINAL and abuse of process , in which he stated that the former was concerned merely with \u201c the fairness of the trial \u201d while the latter had the partial function of \u201c discouraging abuse of power \u201d and \u201c the marking of disapproval of the prosecution 's breach \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-66765","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2004,"docname":"R.P. AND J.P. v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["PERSON ( \u201c the first applicant \u201d ) is a NORP national born in DATE . DATE her initials were PERSON ( \u201c the second applicant \u201d ) is a NORP national born in DATE . The applicants live in GPE .","Since DATE the applicants had been co - habiting . On DATE the first applicant give birth to a boy , ORG","On DATE ORG maternal grandparents , PERSON and PERSON , lodged with the ORG a foster family application . They asked the court to deprive the applicants of their parental rights in respect of ORG and designate themselves as the boy \u2019s foster family . GPE and PERSON submitted that since DATE ORG had remained in ORG as a result of the first applicant \u2019s negligence . They pointed out that the boy , who was DATE , had been admitted to the hospital because he was emaciated . He weighed QUANTITY , whereas his weight at the time of his birth was QUANTITY . Moreover , GPE and PERSON submitted that the first applicant suffered from a serious disability . In particular , she suffered from infantile cerebral paralysis , paraparesis , and was mentally retarded . The applicants lived in a building owned by the state railway company which was located near the railway and did not have any sanitary facilities . The toilet was situated in the courtyard and there was no running water , which had to be fetched from a well . The applicants could not afford to pay the rent , electricity and heating bills , and the second applicant could not earn money to pay those bills because he was receiving a disability allowance .","On DATE GPE and PERSON made an application to ORG for an interim residence order requiring ORG to reside with them .","On DATE the ORG made an interim residence order requiring ORG to reside with his maternal grandparents . At the same time it decided that the foster family application should be transmitted to the FAC . The court referred to LAW and gave the following reasons for its decision :","\u201c The minor PERSON was born on DATE out of a relationship between ORG and ORG Both parents are handicapped pensioners . ORG suffered from infantile cerebral paralysis . The family lives in very bad accommodation , which does not have running water , a bathroom or a toilet . The flat is damp , neglected and requires renovation .","The parents are unable to properly take care of the child because of their disabilities . In addition , they are in a very difficult financial situation as they receive disability allowances in the total amount of ORG and they are helped by the social services in GPE . On DATE the child was admitted to the hospital because of underweight and malnutrition . While the boy remained in the hospital his condition improved . He requires proper nutrition and care . The minor \u2019s grandparents \u2013 the applicants \u2013 have proper conditions to provide the child with adequate care .","The court has established the foregoing facts on the basis of the information received from ORG , where the minor PERSON is hospitalised , and social services in PERSON . This information makes it clear that the child \u2019s parents are unable to provide him with proper care because of their disabilities and inadequate accommodation .","In these circumstances , the court has come to the conclusion that the well - being of the minor child is threatened DATE this is also shown by the child \u2019s malnutrition . It has therefore decided to issue an interim residence order under LAW . The background check carried out in respect of the minor \u2019s maternal grandparents has confirmed that they have proper conditions to take care of the child until the end of the proceedings and clarification of the situation of the family . \u201d","On DATE the applicants filed with the ORG an appeal against the decision of DATE . The first applicant made allegations of abuse against her parents in the appeal and submitted that they should not be given the custody of ORG as he might suffer the same abuse .","On DATE the ORG dismissed the ORG appeal . ORG agreed with the reasoning of ORG . In addition , it noted that ORG was DATE , i.e. , was of the age when the most important processes in the development of a child took place . Therefore , a situation where such a minor was in the custody of the parents who could not provide him with proper hygiene and nutrition amounted to an urgent case .","On an unspecified date in DATE the applicants married .","In DATE PERSON approached the ORG for ORG ) . The ORG carried out interviews in the neighbourhoods where the applicants and GPE and GPE lived , as well as in the health centre in NORP and social services in PERSON . On DATE the ORG sent to the GPE ORG a letter in which it submitted that the application to deprive the applicants of the parental rights was unjustified . The letter was signed by a pedagogue and a psychologist and emphasised that the applicants were \u201c morally and materially competent to take care of their child \u201d . The letter also expressed the ORG \u2019s astonishment that social services in PERSON , which were responsible for helping parents , supported the removal of the child from their custody .","On DATE the applicants asked the ORG to order GPE and PERSON to undergo psychiatric examination .","On DATE the applicants decided that they would stop visiting their son because of the hostile attitude of the grandparents .","On DATE the applicants filed with the President of the \u015aroda ORG a request challenging the presiding judge . However , on DATE that request was dismissed .","On DATE the ORG ( ORG PERSON ) submitted to the GPE ORG an expert opinion in the case concerning the foster family application . The opinion was signed by the director of the centre , CARDINAL psychologists and a medical doctor . It included the following conclusions :","\u201c CARDINAL\/ presently the emotional bonds of the minor ORG with the grandparents are the strongest as they have been taking care of him since DATE ( i.e. for DATE ) . The minor considers the grandparents to be his closest persons , he feels loved and safe in their presence , shows them his feelings and spontaneously receives from them signs of affection and closeness ;","GPE the emotional bonds between the child and the biological parents have been loosened because of the lack of constant positive contacts between them . The meetings of the parents with the son showed emotional tension which resulted from the conflicts between the biological parents and the present carers of the child ( ... ) ;","ORG the psychological condition of ORG does not allow her presently and in the future to take care of the child on her own . [ It is characterized by ] low intellectual ability , significant mental and social immaturity , low level of critical assessment of her abilities and behaviour , excessive dependence on dominant personalities \u2013 including that of her husband , lack of ability to receive and show feelings , lack of proper assessment of the development needs of a child , as well as lack of sufficient predisposition and abilities to direct a child ;","GPE has suffered from infantile cerebral paralysis and her mobility is limited . She needs constant support and help from others . For the above reasons the biological mother is not able to fully secure the emotional and psychomotor needs of the child as well as the proper living conditions and accommodation ;","CARDINAL\/ despite the help declared by the child \u2019s father , who himself is ill and has low educational capabilities , it is impossible to provide the minor PERSON with the proper conditions for his development if he is given over to the permanent and direct care of the biological parents ;","CARDINAL from the psychological and medical point of view , both parents do not guarantee the proper care of the child and the proper stimulation of his development . Both parents are disabled , have very low incomes and modest accommodation \u2013 without basic facilities ( toilet located outside , no running water which is taken from a well ) ;","CARDINAL\/ in view of the above , we consider that it is in the best interest of the minor ORG to stay with the foster family of grandparents ( ... ) who presently give the best guarantee of providing the child with better living conditions ;","CARDINAL\/ in order to provide the child with direct contacts with his biological parents and to secure his proper emotional development we suggest that GPE and PERSON take the minor PERSON for a walk twice a week ( ... ) and in addition take him to their flat in DATE ( ... ) ;","CARDINAL\/ the supervision of both parents by a court curator is necessary in order to know whether they properly fulfil their obligations relating to the care and education of the minor ORG ;","CARDINAL\/ we suggest that after DATE a new examination take place in our centre in order to decide whether the change of the present recommendations is necessary ;","CARDINAL if the court curator finds gross negligence on the part of the biological parents , consideration should be given again to the application to deprive GPE and PERSON of the parental rights over their son ;","CARDINAL it has proved impossible to mediate between the parties in our centre in view of the lack of mutual understanding and negative attitudes to each other ( ... ) ;","CARDINAL\/ the most difficult problem to solve in the present case is the lack of proper relationship between the parties . We think that a psycho corrective approach should be taken in that respect ( ... ) . \u201d","On DATE the applicants submitted to the ORG a letter in which they contested the conclusions of the expert opinion .","On DATE a hearing took place before the ORG . The court heard CARDINAL expert witnesses who had signed the opinion of DATE . Both expert witnesses confirmed the conclusions of the expert opinion . The court decided to request ORG in Pozna\u0144 to submit an opinion concerning the bonds between ORG and his parents . It also decided that mediation between the child \u2019s parents and maternal grandparents should take place ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4682","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":1999,"docname":"SUART v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Josep Casadevall","text":["The applicant is a GPE national , born in DATE and resident on GPE ( GPE ) .","He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","A.","The applicant hails originally from GPE ( GPE ) . It appears that at some time before the events complained of he was convicted of drugs dealing there and spent DATE in prison . He subsequently moved to the GPE .","In DATE the applicant went to visit his native GPE . He returned to the GPE on DATE , arriving at GPE ( GPE ) Airport on DATE .","Passing through customs the applicant stated that he had nothing to declare . Nonetheless his luggage was inspected by customs officials . A clock was found which had a wooden casing decorated with a picture of a typical LOC house . It appears from an official record subsequently drawn up by the customs officials concerned that they had felt the clock body to be \u201c rather thick \u201d and that , when they tapped it , it had sounded hollow . They had drilled a hole into it and some white powder had come out on the drill . When opened the clock was found to contain QUANTITY grams of a substance identified as cocaine .","The cocaine and the clock were seized . The applicant was arrested and questioned by a police officer and a customs officer . He stated that he had not known that the clock contained cocaine . The police officer placed him in police custody ( inverzekeringstelling ) .","The applicant was questioned by the police officer and the customs officer on DATE . According to his statement on this occasion , he had met a young woman , CARDINAL NORP , on GPE , with whom he had entered into an intimate relationship . The applicant and NORP had planned to travel to the GPE together . For this reason he had postponed his departure for DATE . His airline ticket , which had cost MONEY , had been bought for him by a friend . He had given this friend MONEY and the friend had paid the balance himself . He declined to give the name of the friend . On DATE of the applicant \u2019s and NORP \u2019s planned departure , DATE , NORP had told the applicant that she would not accompany him . She had given him a souvenir clock . The applicant had travelled to the GPE alone . The applicant stated that he was not prepared to relinquish title ( afstand doen ) to the clock and the cocaine because they were not his .","An unsigned document which was apparently appended to a receipt dated DATE and delivered to the applicant by the police officer and the customs officer states that the applicant had in fact relinquished title to the clock and the cocaine . This document further states that the clock and the cocaine would be kept by the police at FAC pending a decision of the public prosecutor .","The applicant was questioned by an investigating judge on DATE . He made a brief statement confirming the statement made DATE to the police officer and the customs officer . The investigating judge placed him in detention on remand ( voorlopige hechtenis ) .","On DATE the applicant was released pending trial by order of ORG after a brief hearing in camera . According to the applicant \u2019s counsel the clock was present at that hearing . ORG order , however , does not refer to it .","Proceedings in ORG","On DATE the public prosecutor ( officier van justitie ) sent the applicant a notification that he would be prosecuted for importing or , in the alternative , possessing a quantity of cocaine .","The applicant was summoned to appear before ORG ( arrondissementsrechtbank ) of GPE on DATE . The summons was served at the applicant \u2019s registered address in NORP on DATE . As the applicant was not at home at the time , the summons was handed to his sister , who agreed to take charge of it and ensure that it reached the applicant without delay .","On DATE the applicant \u2019s lawyer sent CARDINAL fax messages , CARDINAL to ORG registrar and one to the public prosecutor , both asking for the clock to be produced at the hearing . DATE the applicant \u2019s lawyer received a message by telephone from the secretary of the public prosecutor to the effect that the clock had not been deposited at the registry of ORG and could not be traced .","The applicant did not appear at the hearing on DATE . His counsel , who was present , stated that the applicant was apparently living in GPE and that he had the impression that the summons had reached the applicant . He did not seek an adjournment for lack of any arguments on which to base such a request . ORG proceeded with the trial in the applicant \u2019s absence .","Invoking the report of ORG in the case of PERSON v. the GPE ( DATE , no . CARDINAL , Series A no . CARDINAL-A ) , the applicant \u2019s counsel asked to be allowed to address the court in the applicant \u2019s defence . The prosecution objected on the ground that no compelling reasons were apparent which prevented the applicant from attending the hearing . This objection was accepted by ORG , which accordingly proceeded to a judgment without hearing any defence argument .","On DATE ORG gave its judgment . It found the applicant guilty of having intentionally imported QUANTITY of cocaine into the GPE and sentenced him to CARDINAL months\u2019 imprisonment . It withdrew the clock and the cocaine from circulation .","ORG in ORG","The applicant appealed to ORG ( gerechtshof ) of GPE .","A summons to appear before ORG on DATE was addressed to the applicant at his address in LOC . However , it appeared that the applicant had in the meanwhile returned to GPE , and so ORG declared the summons null and void . The applicant was summoned anew , this time to appear before ORG on DATE .","The applicant \u2019s counsel \u2013 not the same lawyer who had tried to defend the applicant before ORG \u2013 submitted grounds of appeal in writing .","Relying on ORG PERSON v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL-A ) he argued that the first - instance proceedings had not been fair because the defence had not been heard . He asked for the case to be referred back to ORG for rehearing in the applicant \u2019s presence .","Relying on , inter alia , the judgment of ORG in the case of PERSON v. GPE ( DATE , Series A no . CARDINAL-A ) , he argued that criminal intent on the part of the applicant could not be proved . The clock which NORP had given the applicant had appeared perfectly normal and there had been nothing to suggest that it might contain any illicit substance . He asked for the clock to be produced at the hearing .","The Procurator General ( procureur - generaal ) of ORG wrote to the applicant \u2019s counsel on DATE informing him that the clock could not be produced because it had been destroyed .","The applicant and his counsel were present at the hearing on DATE . Counsel asked ORG first to rule on the preliminary objections contained in his statement of grounds of appeal .","ORG withdrew to consider these objections . After deliberating in private it rejected the objection that the summons to the first - instance hearing had been served at the wrong address , noting that the address to which it had been served had been the address at which the applicant was registered and that it did not appear that the applicant had not been resident there . It further found that LAW did not oblige it to refer the case back to ORG on the ground that the applicant \u2019s counsel had not had the opportunity to address that court in the applicant \u2019s absence .","The hearing was resumed . The applicant availed himself of his right to remain silent .","The applicant \u2019s lawyer again asked for the clock to be produced . The Procurator General again stated that it had been destroyed .","The lawyer then argued that the prosecution ought to be declared inadmissible because what it considered to be the most essential item of prosecution evidence , the clock , had been destroyed ; in the alternative , since the clock could not be produced , it should be assumed that the applicant had not had any real reason to examine it when it was given to him , and so the clock could not be relied upon to ground a conviction .","ORG gave its judgment on DATE . It found the applicant guilty of having intentionally imported cocaine into the GPE and sentenced him to CARDINAL months\u2019 imprisonment .","ORG noted that although the applicant had not formally relinquished title to the clock , it could be inferred from his \u201c procedural attitude \u201d ( proceshouding ) at the relevant time that he had not been interested in having the clock re - examined at a later stage . There was therefore no need to declare the prosecution inadmissible merely because the clock had been destroyed by mistake . Moreover , the clock was not so important an item of prosecution evidence as the defence claimed . In any event , sufficient information about it was available in the form of descriptions and photographs , and to that extent the rights of the defence were not impaired to any material extent .","In so far as the defence claimed that it had not been apparent that there had been anything unusual about the clock , ORG referred to the official report by the customs officers who had arrested the applicant , from which it appeared that the applicant had been found in possession of a clock comprising a wooden body which had appeared \u201c rather thick \u201d and which , when tapped on , had sounded hollow .","Proceedings in ORG","The applicant , through his lawyer , lodged an appeal on points of law to ORG ( PERSON ) on CARDINAL DATE .","He complained , as his first ground of appeal , that since the prosecution had been responsible for the destruction of the clock , the prosecution ought to have been declared inadmissible or , in the alternative , all evidence based on the clock ought to have been rejected . It was of essential importance whether or not the appearance of the clock had been such as to justify any reasonable suspicion that it might contain cocaine \u2013 which in his contention was not the case . Moreover , even if the applicant should be considered to have relinquished title to the clock DATE which in his contention was not so either \u2013 he had not waived the right to base a defence on it . Finally , the photographs contained in the file were not adequate substitutes for the clock itself .","He claimed , as his second ground of appeal , that since he had consistently denied all knowledge of the fact that the clock contained cocaine , it could not be proved that he had intentionally imported that substance into the GPE . In his contention the finding of intent had been based solely on the presence of the cocaine in his luggage .","As his third ground of appeal , relying on ORG above - mentioned PERSON judgment , he complained about the refusal by ORG to refer the case back to ORG for a rehearing at first instance , given that ORG had refused to allow his counsel to address it in his defence .","Finally , should the above grounds of appeal in themselves not constitute sufficient reason to overturn the judgment of ORG , he argued that , taken together , they reflected a general lack of fairness of the proceedings .","ORG gave its judgment on DATE . It rejected the appeal in its entirety .","With regard to the third ground of appeal , ORG referred to its own case - law according to which the failure by the first - instance court to allow counsel to plead in the absence of the accused , although unlawful per se , did not entail any obligation on the part of ORG to refer the case back to ORG for a rehearing at first instance .","The fourth ground of appeal was rejected in view of what had been held with regard to the other CARDINAL points ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103931","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2011,"docname":"CASE OF ILJINA AND SARULIENE v. LITHUANIA","importance":3,"conclusion":"Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto","text":["The first applicant was born in DATE . The second applicant was born in DATE . Both of them live in GPE . The first applicant is the second applicant 's mother .","According to the second applicant , at TIME on DATE a police officer , in plain clothes , arrived at the applicants ' apartment block to conduct a search for stolen goods in a flat which was situated next door to that of the applicants . The police officer was accompanied by a technical expert who worked for the company which owned the goods in question . The applicants ' neighbour refused to let the police officer in , alleging that he was not the owner of the flat and that the officer was not wearing a uniform . At the same time , the second applicant , her uncle , ORG , and her brother , PERSON , came out on to the staircase for a smoke . According to the second applicant , she and her brother told the police officer that he had no right to enter the flat by force . The policeman went for reinforcements , but before leaving said \u201c get ready to go [ with the police ] \u201d .","The further circumstances of the conflict on the staircase are in dispute between the parties .","According to the second applicant , CARDINAL more uniformed policemen arrived later at the scene of the incident . CARDINAL of them suddenly grabbed PERSON , loaded his gun and pointed it at GPE The second applicant screamed for help and the policeman pointed the gun at her . The other policemen told the first officer to put away the gun and both policemen started hitting GPE The officers called for more reinforcements , and more policemen arrived ; they hit GPE and ORG with rubber truncheons and punched and kicked them . At that time the second applicant 's father , PERSON , returned from work and asked the police to explain what was happening . Instead of replying , the police started hitting him on the head , shoulders and hands with a rubber truncheon . The second applicant 's daughter , who was DATE and DATE , attempted to come out of the flat to see what was happening in the corridor ; a policeman tried to push and close the flat 's reinforced door . The second applicant placed her foot between the door and the wall to prevent her daughter from being hurt ; consequently , the second applicant 's foot was injured . ORG , GPE and PERSON were arrested . The second applicant telephoned the first applicant .","According to the first applicant , she received a telephone call from her daughter and went straight to the scene of the incident . In the courtyard of the apartment block she saw CARDINAL police cars and several policemen . O.B. , GPE and PERSON were in the police cars and there were a lot of people milling around . She asked the police officers what was going on . However , no explanation was given , and the officers started pushing people further away from the police cars . The first applicant tried to stop the police officers and lay down on the bonnet of a police car . The policemen started driving the car and the applicant felt pain in her whole body . An officer forcibly dragged her away from the car , tore off her blouse , kicked her bottom and threw her , wearing no blouse but only a bra , onto the grass . She came round as the police were leaving .","In their submissions of DATE the ORG stated that as reinforcement , CARDINAL more police officers arrived at the staircase . PERSON again came out of his flat and used offensive language towards the officers . The second applicant and her friend PERSON came out on to the staircase . The police officers demanded that PERSON stop acting inappropriately and warned him of the impending consequences . PERSON did not comply and the police officers attempted to arrest him . He resisted the arrest , hitting the officers . Then ORG ran out of the flat and started hitting the officers . More reinforcements were called for and CARDINAL more officers arrived at the scene . The policemen attempted to arrest GPE and O.B. At this point PERSON turned up and joined in the fight , trying to prevent the policemen from restraining his relatives . The second applicant and ORG were also obstructing the officers from carrying out their duty by jostling and pulling their clothes . The Government pointed out that as regards the second applicant 's leg injury , the latter 's friend PERSON , when questioned by police , stated that \u201c the police officer slammed the door so loudly that the second applicant 's daughter started crying \u201d . Eventually GPE , ORG and PERSON were handcuffed and put into police cars in the courtyard of the apartment block . None of the policemen used or showed a gun , nor did they threaten to use one . The first applicant tried to prevent the police cars from leaving the courtyard and lay down on the bonnet of the first car . At the time the engine was turned off and the car was not moving . CARDINAL of the officers , with some help from CARDINAL other officers , forcibly moved the second applicant away from the car , holding her by both hands .","The documents before the ORG indicate that on CARDINAL and CARDINAL DATE a medical expert of ORG examined the applicants and CARDINAL of their family members who had taken part in the incident . It was established that all CARDINAL of them had sustained light health impairment . In particular , the first applicant had a scratch on her forehead and CARDINAL bruises on her upper arms , ranging in size from QUANTITY to QUANTITY , which were the result of CARDINAL impacts . A doctor 's certificate attested that she was unfit for work from MONEY to DATE .","The second applicant had an injury to her right foot , caused by a single impact with a hard blunt object . The second applicant 's brother , PERSON , had sustained bruises and scratches on his elbows , forearms and left knee , caused by having had CARDINAL traumatic impacts with small hard blunt objects . He received leave of absence from work until DATE .","The second applicant 's father , PERSON , told the doctor that the police officer had hit him several times on the head and left shoulder with a rubber truncheon . The doctor found a CARDINAL - diameter bruise on PERSON 's left temple and scratches on his right hand . Those injuries had been caused by CARDINAL traumatic impacts .","The first applicant 's brother , ORG , told the medical expert that during the altercation with the police the officers had beaten him , twisted his arms behind his back and kicked him in the chest . The medical expert established that there was a swollen CARDINAL x CARDINAL scratch on ORG 's right forearm and a CARDINAL - diameter swollen bruise on his right shoulder , which were the consequence of CARDINAL traumatic impacts from hard blunt objects , possibly in the way and at the time described by ORG He received leave of absence from work until DATE .","The medical expert also concluded that the injuries mentioned above could have been received during the altercation with the police officers .","During TIME CARDINAL DATE the CARDINAL applicants submitted written complaints about the police actions to ORG and to the prosecutors . The applicants asked for an assessment of the actions of the policemen , and that the officers who had taken part in the events be identified . ORG , GPE and PERSON were kept in police custody TIME . The following TIME PERSON , GPE and PERSON were questioned and TIME released from custody .","The police investigator charged PERSON , GPE and ORG under LAW ( insulting a public servant or a person discharging public functions ) and LAW ( resistance to a public servant or a person discharging public functions ) . However , on DATE the prosecutor dropped the charges against PERSON , PERSON and ORG for lack of evidence of guilt ( LAW ( CARDINAL ) of LAW ) .","On DATE PERSON , PERSON and ORG submitted a written complaint to the GPE Region chief prosecutor . They stated that they had been beaten up by the policemen without any reason and even experienced a threat that a firearm would be used against them . Whilst arguing that the police officers had brought charges against them of obstruction of justice only to defend the uniform , PERSON , GPE and ORG invoked ORG CARDINAL and CARDINAL \u00a7 CARDINAL of LAW and asked the prosecutor that the actions of the policemen be scrutinised by a prosecutor , without delegating the inquiry to police investigators .","At the applicants ' request , on CARDINAL DATE ORG of ORG began a pre - trial investigation into alleged ill - treatment by the police officers , under LAW , which establishes criminal liability for abuse of power .","When testifying to the investigators of ORG , the police officers stated that PERSON had tried to obstruct them in the performance of their duties and had insulted them . They had attempted to arrest him for this behaviour , but he had resisted , using violence against them ; then ORG had arrived and tried to stop the policemen from restraining PERSON , PERSON had appeared on the scene and also become involved in the fight . Moreover , there were CARDINAL women on the staircase who grabbed the officers by the arms . Consequently , ORG , GPE and PERSON had been arrested and taken to the police station . During the incident none of the policemen had used or shown a gun , nor had they threatened to use one .","DATE and DATE ORG investigator at ORG questioned the policemen , the applicants and their male family members as well as the applicants ' neighbours who had witnessed the incident . The questioning took place on police premises . Neither the applicants nor PERSON , GPE or ORG had lawyers present when they were being questioned . The policemen and the applicants maintained their respective versions of events .","On DATE a prosecutor of ORG discontinued the pre - trial investigation , stating that there was not enough objective evidence to conclude that the police officers had abused their powers or used unnecessary force .","On DATE and DATE the applicants appealed against that decision to ORG , claiming that \u201c they could not have expected a different outcome of the inquiry , given that the [ police ] investigator was misleading the witnesses with the aim of obtaining testimony favourable to the [ police ] officers \u201d . The applicants argued that the police officers had used excessive force against them and threatened to use a firearm . They also alleged that the testimony police officers had given during the pre - trial investigation was not comprehensive , given that the officers had not specified which special fighting actions ( kovini\u0173 imtyni\u0173 veiksmus ) they had used . Moreover , the localisation of the wounds on the applicants ' bodies allowed the assumption that the police had had recourse not only to restraining measures , but to clear physical violence .","On DATE the deputy chief prosecutor of ORG dismissed the applicants ' appeal as unfounded . He noted the prosecutor 's decision of DATE to drop the charges against PERSON , PERSON and ORG as unfounded , for lack of evidence . However , having , as it appears from his decision , analysed the statements of the parties to the incident , as written down by the police internal affairs investigator , the prosecutor found that there were no objective data to substantiate the applicants ' allegations that the policemen had acted unlawfully . For the prosecutor , the applicants ' request that the policemen be questioned CARDINAL more time was not to be entertained , because \u201c the testimony of the police officers about the actions of GPE , PERSON and the others who obstructed the police , as well as about the force used when arresting them , was sufficiently detailed and comprehensive \u201d .","On DATE the applicants appealed to ORG asking that the pre - trial investigation be reopened and the witnesses be comprehensively questioned CARDINAL more time . They maintained that the police investigator had refused to record statements by certain witnesses , thereby destroying the evidence of the crime committed by the policemen . The investigation into the police actions had been superficial . The applicants asked the court to establish which particular actions should be attributed to each of the policemen . They also noted that on DATE the prosecutor had decided to drop the criminal charges against PERSON , GPE and ORG","On DATE the Vilnius City ORG in a CARDINAL - page ruling held that the pre - trial investigation had been thorough and that the prosecutors had taken reasoned decisions . According to the court , the medical experts ' conclusions that the applicants and their family members had sustained light physical harm was not evidence of an abuse of powers by the police \u2013 the applicants had resisted the policemen and had been injured as a result . The court also noted that the applicants had not submitted new evidence . For those reasons the complaint was dismissed . That decision was final .","Article CARDINAL of the Penal Code sets out that there is criminal liability for abuse of authority when such abuse by a civil servant or a person of equivalent status causes serious damage to a legal or natural person . Under Article CARDINAL of the Code a person can be held criminally liable for having opposed a policeman 's orders and threatened the latter with physical violence . Article CARDINAL of the Code sets out that there is criminal liability for insulting a public officer or a civil servant .","Under LAW , a police officer must respect and protect human dignity , ensure and safeguard human rights and freedoms . The police officers have a right to use coercion when it is necessary to prevent violations of the law and to apprehend those who have committed such violations , as well as in other cases when lawful interests of an individual or the ORG are at stake . Physical coercion can be used when apprehending a person who has committed a violation of the law and who evades arrest by active actions ( Articles CARDINAL and DATE ) .","The PERSON on the Prosecutor 's Office stipulates that in discharging his functions the prosecutor is independent ( LAW ) . It is for a prosecutor to conduct , organise and direct the pre - trial investigation and to supervise the procedural activities of pre - trial investigation officers . A prosecutor 's decision can be appealed against to a superior prosecutor ( ORG CARDINAL and CARDINAL ) .","The Code of Criminal Procedure provides that parties to criminal proceedings can lodge complaints with the prosecutor against the procedural actions and decisions of the pre - trial investigating officer . The prosecutor 's decision can be complained against to a superior prosecutor and subsequently to an investigating judge ( Articles CARDINAL and DATE ) . When examining the complaint , the prosecutor and the investigating judge have a right to examine the pre - trial investigation materials and request statements from the pre - trial investigation officer or the prosecutor , provided that they had not been submitted before . The prosecutor , counsel , the accused and the complainant may be present during the examination of the complaint by the investigating judge . Furthermore , an investigating judge has a right to question witnesses , suspects and victims . Up to CARDINAL DATE the decision of the investigating judge was final ( Articles DATE and CARDINAL ) . Since DATE , a decision of an investigating judge can be appealed against to a superior court ( Article CARDINAL \u00a7 CARDINAL ) .","The pre - trial investigation can be conducted by the police , but it has to be organised and led by a prosecutor , who has an obligation to oversee the course of the investigation and who can decide to conduct all or part of the investigation himself ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ) . Under Articles CARDINAL \u00a7 CARDINAL ( CARDINAL ) and CARDINAL \u00a7 CARDINAL of the Code , a prosecutor is to terminate the pre - trial investigation where insufficient evidence of the suspect 's culpability in respect of a crime has been gathered .","The Regulations of the Internal Affairs Department of ORG , approved on CARDINAL DATE , stipulate that the ORG is an autonomous structural unit subordinate and accountable to the Chief of Police at ORG or his deputy . It is the ORG 's function to conduct pre - trial investigations of criminal acts committed by police officers . When conducting an investigation , the ORG 's officials have the right to question police officers and other persons .","In their observations on the admissibility and merits of the case , the Government provided the ORG with examples of recent domestic courts ' practice in cases of abuse by the police . In particular , the ORG referred to the judgment of CARDINAL DATE when ORG convicted QUANTITY police officers of abuse of authority . The policemen were charged with using excessive force when apprehending CARDINAL suspects and later beating them while they were in custody . The Government noted that after hearing and seeing various witnesses and evaluating their credibility , the court had accepted the victims ' version as more credible . The ORG also referred to the judgment of the same court of CARDINAL DATE , subsequently upheld by ORG , when QUANTITY police officers were convicted of abuse of authority and beating up a suspect during questioning . The conviction was based on the version of events presented by the victim , supported by corroborating medical examination . The fact that fellow police officers had testified in favour of the accused policemen did not cast doubt for the court on the credibility of the victim 's claims ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22719","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"ANDREWS v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE with ORG , Solicitors . The respondent Government are represented by their Agent , PERSON , ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG ( \u201c C&E \u201d ) arrested the applicant and his son D , searched the applicant \u2019s home and seized GBP CARDINAL .","The applicant was charged with an offence of so conducting himself that his conduct must have involved the commission of CARDINAL or more LOC offences in connection with the affairs of ORG , a company of which he was director and secretary . D was also charged with similar offences in relation to the same company as well as CARDINAL other companies , ORG and ORG","As to ORG , the applicant was registered as the owner of CARDINAL of the CARDINAL issued shares , his daughter - in - law ( D \u2019s wife ) being the registered owner of the remaining share . According to the Government , the applicant represented the company in all dealings with ORG in regard to GPE - related matters . ORG took over the business of LOC D was declared bankrupt in DATE .","On DATE the applicant and D were further charged with , inter alia , failure to operate the PAYE ( Pay as You Earn ) tax system correctly .","On DATE on the ex parte application of ORG under sections CARDINAL and CARDINAL of LAW DATE ( \u201c the ORG \u201d ) , PERSON Justice PERSON in ORG made an order against the applicant ( \u201c the LOC \u201d ) under the ORG . The general effect of ORG was to prevent the applicant from disposing of his assets as identified in the Order . Furthermore , the applicant \u2019s home was made subject to a charge in order to secure payment to the ORG of an amount equal to the value of the property .","By a further order under the ORG , PERSON Justice PERSON appointed a Receiver and manager of the applicant \u2019s realisable property . Under this order , the Receiver was given power to pay all fees , commission and other costs from the proceeds of sale or realisation of the assets subject to the order , and was allowed remuneration in an amount to be agreed by ORG or , in default of agreement , to be determined by the court . The property listed in the schedule to the receivership order included not only the sum of GBP CARDINAL seized from the applicant \u2019s home , but also the bank accounts of the applicant and of ORG and vehicles used by the latter company .","Similar orders were also made on DATE by PERSON Justice PERSON against NORP","To comply with ORG , the applicant swore an affidavit on DATE in which he identified his assets . He stated inter alia that his assets included a PERCENT share in ORG , and that he had therefore \u201c an interest in all the assets and liabilities of ORG .... \u201d He further specified that he had an interest in the money in a bank account of ORG , and that he was owed dividends of ORG CARDINAL by the company . The applicant also stated in the affidavit that some of the money seized from his home ( GBP CARDINAL ) was partly his and partly his wife \u2019s or belonged to other members of his family .","C&E were authorised to pay over to the Receiver the sum of GBP CARDINAL which it had seized from the applicant \u2019s home . Pursuant to the terms of ORG , the Receiver took possession of this amount . C&E were not required to give any cross - undertaking in damages in respect of any of the orders obtained from Mr Justice PERSON .","ORG was varied by consent on DATE , DATE , CARDINAL DATE and DATE to enable sums to be paid to the applicant \u2019s former solicitors for legal costs in connection with his defence in the pending criminal proceedings . In all , sums totalling GBP CARDINAL were released by the Receiver to the applicant \u2019s solicitors for these purposes , leaving a balance of GBP CARDINAL in the Receiver \u2019s hands .","Prior to the applicant \u2019s trial , the Receiver used this balance in payment of her costs and remuneration . The majority of the costs were attributable to the monitoring of ORG including its bank accounts \u201c and to discussing various vehicle sales and purchases with the applicant in order to maintain the quality of the fleet . \u201d","D maintained at his trial that the applicant had played no active role within ORG and that he had asked the applicant to be the director and secretary of the company because of his [ D \u2019s ] impending bankruptcy . He stated that the applicant only signed documents as director of the company on his request , including blank cheques . On DATE D was convicted of cheating the public revenue by failing to declare ORG contributions on the full value of wage payments made to the employees of ORG On DATE D was convicted of the fraudulent evasion of VAT with respect to the affairs of ORG","On DATE the applicant was acquitted of all charges against him . The applicant was awarded his costs from central funds . However , these did not include the costs incurred by , or the remuneration of , the Receiver .","According to the applicant , the trial judge found that D was the beneficial owner of ORG and that the applicant had no interest in its assets . Furthermore , it was at no time asserted by the prosecution during the trial that the GBP CARDINAL or any part of it belonged to NORP","In separate proceedings a confiscation and compensation order was made against D under the ORG .","On DATE the applicant applied to ORG for the discharge of the orders against him . In an affidavit sworn on DATE the applicant indicated that he wished the receivership to be discharged in order to enable ORG to continue trading .","On DATE ORG were discharged by order of Mr Justice PERSON with liberty to the applicant to apply for his costs . The applicant \u2019s home was released from the charging order and the applicant and his daughter - in - law were permitted to deal in property relating to ORG to enable it to continue trading . The conduct of the business of the company remained under the supervision of the Receiver .","The remaining GBP CARDINAL was not returned to the applicant after the discharge of ORG . By letter to the Receiver dated DATE the applicant \u2019s solicitors sought repayment of the balance of the GBP CARDINAL after deduction of the amounts already released to cover his legal costs . However , by letter dated DATE the Receiver stated that no funds remained to be returned because all balances had been used to defray the \u201c prior costs of the receivership \u201d . From the ORG \u2019s affidavit sworn on DATE , it appears that the Receiver utilised the balance of the applicant \u2019s funds prior to his acquittal , largely for the purpose of monitoring the business of ORG ( see above ) . On DATE ( the date of discharge of ORG ) the Receiver held a balance of GBP CARDINAL arising from the sale of certain of ORG vehicles , which funds \u201c were utilised to settle costs arising subsequent to the applicant \u2019s acquittal . \u201d","On DATE the applicant applied for an order that ORG pay his costs arising out of the civil proceedings in which ORG had been made including the Receiver \u2019s costs , expenses and remuneration .","On DATE the applicant \u2019s application was heard by Mr Justice PERSON . It was made clear that the application was limited to seeking an order for payment of the balance of GBP CARDINAL . Mr Justice PERSON dismissed the applicant \u2019s application and refused leave to appeal . In relation to the applicant \u2019s claim to be repaid the sum of GBP CARDINAL , Mr Justice PERSON stated :","\u201c Now the applicant says , \u201c it is unfair that I should not have that money . \u201d One can well see his point of view . The result is unfair . However , we live in a society where sometimes unfairness will and must occur . It was necessary to appoint the Receiver to act as was the case . There was no way at the time to separate the GBP CARDINAL,CARDINAL from the other assets . \u201d","Mr Justice PERSON further observed :","\u201c In my judgment , it would not be at all proper to order [ C&E ] to repay the \u00a3 MONEY as to which , as I have already explained , the applicant may feel that he has been hard done by . The social explanation for that is , as a result of his son \u2019s criminal behaviour , the order had to be made and if he has lost this money , as he has , then he should put it down to his son \u2019s criminal behaviour . There was nothing improper in the action of the [ C&E ] , or in the order which was made by the court . \u201d","Mr Justice PERSON further considered that negligence could not be imputed to the Receiver such as to bring section CARDINAL of the ORG into play ; nor were the ORG guilty of any serious default in its investigation or prosecution of the offences at issue which could have allowed the applicant to invoke the compensation provisions of LAW of the ORG .","On DATE leave to appeal against the decision of Mr Justice PERSON was granted by Lord Justices PERSON and GPE . Leave was restricted to the question of whether the applicant could recover the sum of ORG CARDINAL by way of an order that ORG pay his costs of the civil proceedings including the Receiver \u2019s costs , expenses and remuneration .","On DATE the applicant \u2019s appeal was heard by ORG ( Lord Justices PERSON , PERSON and ORG ) . Lord Justice Ward summarised the issue before the court as follows :","\u201c ... if a receiver is appointed under the [ Criminal Justice Act DATE ] to receive and manage a defendant \u2019s property and incurs costs and expenses in so doing , who bears that cost and expenses if the defendant is subsequently acquitted by ORG and awarded his costs of defence out of public funds ? \u201d","Lord Justice Ward summarised the law relating to the payment of ORG costs as follows :","\u201c The ordinary rule is that receivers should not accept their appointment unless satisfied that the receivable assets will be sufficient to meet their claim for costs and for remuneration or that they would be otherwise indemnified , by contract or by order of the court , by the party responsible for their appointment . In this case there was an agreement between the receiver and [ C&E ] that [ C&E ] would indemnify the receiver if she were unable to bring in sufficient assets to meet her costs . That did no more than replicate the statutory position ... \u201d","ORG considered that the remuneration of the Receiver was not costs incidental to the receivership proceedings . In the court \u2019s opinion the charges incurred by the Receiver in supervising the running of the company during the relevant period were expenses of the receivership and were not therefore recoverable by the applicant even if he had ultimately been successful in the receivership proceedings .","Lord Justice Ward , although sympathetic to the applicant \u2019s situation , stated :","\u201c The true position , as it now appears to me , is that the investigation of whether or not the defendant has suffered loss by reason of the receivership is an investigation which should be and ordinarily would be conducted in deciding whether or not damages should be awarded against the plaintiff for the breach of the usual undertakings as to damages a plaintiff would normally be required to give . Such an investigation would enable justice to be done . Here no undertaking was given and none ordinarily is . \u201d","Lord Justice Ward then observed that LAW of the ORG only provided the applicant with the possibility to obtain compensation from the ORG on proof that the latter authority had been guilty of serious default in the investigation and prosecution of the offences with which the applicant was charged . In the words of Lord Justice Ward , LAW \u201c simply does not provide an adequate remedy . \u201d With reluctance he concluded that :","\u201c ... even if the expenses of the receivership are within the definition of costs , they are not costs of and incidental to the proceedings . \u201d","Lord Justice PERSON observed that :","\u201c ... on the facts ... the [ applicant ] may seem to have been treated unfairly by the conclusion that I have reached , as his GBP CARDINAL,CARDINAL was used up as an expense of the receivership and therefore can not be recovered . That in my view is the result of the type of proceedings and the conditions for recovery laid down in the LAW . ORG in LAW of the LAW specifically limited the right to recover from a receiver to cases where negligence is established . It is accepted for the purposes of these proceedings that there was no negligence .","I would add that in my judgment [ counsel for ORG ] was right in his submission that this really was a claim for compensation dressed up as an application for an award of costs , and it is therefore most significant that by LAW ORG laid down a carefully regulated code for such a claim . Consequently , in my judgment , LAW is the proper avenue for a compensation claim of this kind , provided of course the claimant can bring himself within the rather strict requirements of that section . \u201d","In its judgment on DATE , ORG dismissed the appeal . It refused leave to appeal to ORG . The applicant did not petition for leave to appeal to ORG , having being advised by counsel that this course of action offered no prospects of success .","( CARDINAL ) ORG may by order ( referred to in this Part of this LAW as a \u201c restraint order \u201d ) prohibit any person from dealing with any realisable property , subject to such conditions and exceptions as may be specified in the order .","( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) above , a restraint order may make such provision as the court thinks fit for living expenses and legal expenses .","( CARDINAL ) A restraint order may apply\u2013","( a ) to all realisable property held by a specified person , whether the property is described in the order or not ; and","( b ) to realisable property held by a specified person , being property transferred to him after the making of the order .","( CARDINAL ) This section shall not have effect in relation to any property for the time being subject to a charge under section CARDINAL below :","( CARDINAL ) A restraint order\u2013","( a ) may be made only on an application by the prosecutor ;","( b ) may be made on an ex parte application to a judge in chambers ; and","( c ) shall provide for notice to be given to persons affected by the order .","( CARDINAL ) A restraint order\u2013","( a ) may be discharged or varied in relation to any property ; and","[ ( b ) shall be discharged on the conclusion of the proceedings or application in question . ]","( CARDINAL ) An application for the discharge or variation of a restraint order may be made by any person affected by it .","( CARDINAL) Where ORG has made a restraint order , the court may at any time appoint a receiver\u2013","( a ) to take possession of any realisable property , and","( b ) in accordance with the court \u2019s directions , to manage or otherwise deal with any property in respect of which he is appointed ,","subject to such exceptions and conditions as may be specified by the court ; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver .","( ... ) \u201d","\u201c ( CARDINAL ) ORG may make a charging order on realisable property for securing the payment to the GPE","( a ) where a confiscation order has not been made , of an amount equal to the value from time to time of the property charged ; and","( b ) in any other case , of an amount not exceeding the amount payable under the confiscation order .","( CARDINAL ) For the purposes of this Part of this LAW , a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the ORG .","( CARDINAL ) A charging order\u2013","( a ) may be made only on an application by the prosecutor ;","( b ) may be made on an ex parte application to a judge in chambers ;","( c ) shall provide for notice to be given to persons affected by the order ; and","( d ) may be made subject to such conditions as the court thinks fit and , without prejudice to the generality of this paragraph , such conditions as it thinks fit as to the time when the charge is to become effective .","( ... )","( CARDINAL) An application for the discharge or variation of a charging order may be made by any person affected by it . \u201d","\u201c ( CARDINAL ) Where a receiver appointed under this Part of this LAW or in pursuance of a charging order takes any action\u2013","( a ) in relation to property which is not realisable property , being action which he would be entitled to take if it were such property ;","( b ) believing , and having reasonable grounds for believing , that he is entitled to take that action in relation to that property ,","he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence .","( CARDINAL ) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall , if no sum is available to be supplied in payment of it under section CARDINAL ) above , be paid by the prosecutor or , in a case where proceedings for an offence to which this Part of this Act applies are not instituted , by the person on whose application the receiver was appointed . \u201d","\u201c ( CARDINAL ) If proceedings are instituted against a person for an offence or offences to which this Part of this Act applies and either\u2013","( a ) the proceedings do not result in his conviction for any such offence , or","( b ) where he is convicted of CARDINAL or more such offences\u2013","( i ) the conviction or convictions concerned are quashed , or","( ii ) he is pardoned by Her Majesty in respect of the conviction or convictions concerned ,","ORG may , on an application by a person who held property which was realisable property , order compensation to be paid to the applicant if , having regard to all the circumstances , it considers it appropriate to make such an order .","( CARDINAL ) The High Court shall not order compensation to be paid in any case unless the court is satisfied\u2013","( a ) that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence concerned , being a person mentioned in subsection ( CARDINAL ) below ; and","( b ) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of[\u2013","( i ) an order under this Part of this LAW ; or","[ ( ii ) an order of ORG under section CARDINAL , DATE , DATE or DATE of the Proceeds of Crime ( Scotland ) Act DATE . ] ]","( CARDINAL ) The ORG shall not order compensation to be paid in any case where it appears to the ORG that the proceedings would have been instituted or continued even if the serious default had not occurred .","( CARDINAL ) ORG payable under this section shall be paid\u2013","( a ) where the person in default was or was acting as a member of a police force , out of the police fund out of which the expenses of that police force are met ;","( b ) where the person in default was a member of ORG or acting on behalf of the service , by ORG ;","( c ) where the person in default was a member of ORG , by the Director of that ORG ;","( ... ) \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103349","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2011,"docname":"DONALDSON v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr F. Shiels of ORG , a lawyer practising in GPE .","NORP The facts of the case , as submitted by the applicant , may be summarised as follows .","NORP The applicant is currently serving a DATE sentence in GPE GPE . At all material times he was held in PERSON , which was a segregated wing for NORP prisoners . Facilities such as the exercise yard and the gymnasium were used separately and the only place where segregated prisoners such as the applicant could come into contact with other prisoners was in the visiting hall .","ORG Standing Orders stated that prisoners were not permitted to wear emblems outside their cells or display emblems in their cells . In GPE , an exception was made with respect to the wearing of shamrock on PERSON and the wearing of poppies on DATE as these emblems were deemed to be \u201c nonpolitical and non - sectarian \u201d if worn at the appropriate time .","NORP On GPE DATE , the applicant affixed an GPE lily to his outer clothing in commemoration of the NORP republican combatants who died during or were executed after the DATE Easter Rising . A prison officer asked him to remove the ORG lily and when he refused he was charged with disobeying a lawful order under the Prison and Young Offenders Centre Rules ( GPE ) DATE . The applicant was subsequently found guilty of disobeying a lawful order and was given DATE of cellular confinement by way of punishment .","The applicant applied for leave to bring judicial review proceedings challenging , inter alia , the policy of ORG in respect of the wearing of GPE lilies . In particular , he submitted that the policy represented a disproportionate interference with his right under LAW freely to express his political beliefs and cultural identity . Moreover , while he accepted that the aim of the policy was the prevention of disorder and crime , he argued that the policy was disproportionate because , as a prisoner held in a segregated wing , there was no risk that he would have contact with anyone who would be offended by the GPE lily . He further argued that the policy was discriminatory as it unjustly differentiated CARDINAL analogous comparators , namely prisoners wishing to wear a poppy and prisoners wishing to wear an GPE lily .","On DATE ORG refused his application for leave to apply for judicial review . Relying on earlier case - law , ORG judge held that any interference with the applicant \u2019s LAW rights was proportionate and there had been no discrimination .","The applicant appealed to ORG . Following the hearing , the court reserved judgment . In its judgment of DATE , ORG indicated that as all the material relied upon was before it , it would apply the procedure under LAW and Rule CARDINAL(CARDINAL ) of LAW ( GPE ) DATE , which permitted it to treat the application as an appeal rather than as a renewed application for leave . Consequently , it granted the applicant leave to apply for judicial review and dismissed the appeal on its merits . It found that :","\u201c Conflict emblems in a divided society where the emblems represent CARDINAL view or the opposite view are by their nature divisive and have the potential to inflame those who do not agree with them . This must be so particularly where the divisions have led to years of violence , even though a period of relative calm has ensued . Many of those caught up in the conflict from both sides inhabit or have inhabited the prisons . Therefore it is necessary and reasonable that the prison service have a policy about the wearing of such emblems which forms part of its policy to prevent disorder within the prison system and which is uniformly applicable . Does the existence of a separated regime within the prison demand that a different policy be applicable in that regime ? I do not think that it does . While the likelihood of contact between those with opposing views may be reduced in a separated unit , it can not be excluded . Whether in a separated regime or not , there will always be contact with members of staff . ORG considered such conflict emblems had no place in a working environment and a prison should be no different . As part of its policy to prevent disorder the prison service are entitled to have rules relating to emblems which are applicable throughout the prison . As PERSON stated in ORG this policy is soundly based .","The wearing of an emblem as a mode of expression is a small element of what LAW is designed to protect . The basic tenets of LAW are the rights to hold opinions and to impart and receive information and ideas . None of these matters are restricted by the prison policy . Prisoners are permitted to wear Easter Lilies in their cells . The only restriction is that they may not be worn in communal areas . That restriction in the context of LAW is a very minimal interference . It is entirely proportionate to the objective of preventing or maintaining good order in a prison .","PERSON emphasised that in ORG FAC expressed the view that the arguments were finely balanced . He submitted that in those circumstances a change of emphasis in CARDINAL argument should or could tilt the balance . I do not think the arguments are finely balanced . The case for an objective policy on emblems as part of the necessary aim to prevent disorder within a prison and which is applicable throughout the prison , including separated regimes , is substantial if not more so . In my view the policy which is minimally restrictive , complies with LAW . \u201d","On DATE the applicant was advised by Counsel that he was unlikely to be granted leave to appeal to ORG . The applicant has not submitted a copy of ORG \u2019s advice to the ORG as it was confidential and privilege was not waived in respect of it on the applicant \u2019s behalf , save as to indicate that Counsel referred , inter alia , to the number of prisoners affected by the desire to wear the disputed emblem and advised that the case was not one where the test for leave to appeal was likely to be satisfied .","Paragraph QUANTITY of ORG Standing Orders dated DATE stated that :","\u201c Prisoners may not wear emblems , nor should they be displayed by prisoners in their cells . \u201d","On DATE the Governor of GPE issued a notice to prisoners concerning the wearing of shamrock on PERSON and poppies for DATE . The notice stated that :","\u201c These emblems are non - political and non - sectarian and will , in future , be permitted to be worn at the appropriate time by any prisoners who wish to wear them . \u201d","NORP This notice echoes the guidance issued to employers by ORG , which provided as follows :","\u201c Personal Emblems","There are some individual emblems and symbols that , through their history and associations , and whether intended or not , have come to have a significance that has the potential to make those of a different identity feel uncomfortable or unwelcome .","In this category are likely to fall a variety of symbols and emblems with the potential to cause disharmony , and especially those that have been directly linked to community conflict in GPE and\/or to local politics . These include :","\u2022 Badges and insignia , e.g. Easter Lilies , Orange symbols","... ... ...","There are many ways in which we convey our religious or political identity to others . In this category would fall emblems that may be associated primarily with CARDINAL religion or community but are not directly linked to community conflict .","Such marks of identity are unlikely to be regarded as creating an intimidating or hostile working environment . There are many examples of such emblems , including :","PERSON of remembrance , celebration or commemoration ( e.g. poppies , shamrock ) \u201d","The legality of the ban on wearing the GPE lily in GPE prisons has been challenged before the domestic courts on a number of occasions . In the case of In PERSON [ DATE ] ORG CARDINAL the applicant had been charged with a disciplinary offence after he refused to remove an GPE lily . As the applicant was being held in an integrated prison , ORG found that the ban on the wearing of GPE lilies in communal areas did not violate his rights under LAW as the interference with his freedom of expression was prescribed by law and was necessary to prevent potential conflict within the prison .","The case of In Re McCafferty [ DATE ] NIQB CARDINAL was brought by an applicant who was being held in FAC , the segregated wing of GPE GPE . He brought judicial review proceedings after he was asked to remove an LOC lily on GPE DATE and the thrust of his case was that there was a fundamental difference between the position of prisoners in the integrated part of a prison and those housed in the segregated regime . ORG argued that the measures were justified by the imperative of minimising the distinction between integrated and segregated prisoners and preventing the development of paramilitary control . Moreover , they argued that there was a need to protect the rights of persons ( other than prisoners ) who could come into contact with a prisoner wearing an emblem and to ensure a neutral working environment for prison officers . ORG concluded that the policy operated by ORG was soundly based as it was entitled to ensure an objectively based system throughout the prison ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76169","languageisocode":"ENG","respondent":"FRA","branch":"GRANDCHAMBER","date":2006,"docname":"CASE OF RAMIREZ SANCHEZ v. FRANCE","importance":1,"conclusion":"No violation of Art. 3;Violation of Art. 13;Costs and expenses partial award - Convention proceedings","judges":"Alvina Gyulumyan;Christos Rozakis;Elisabet Fura;Fran\u00e7oise Tulkens;Javier Borrego Borrego;Jean-Paul Costa;John Hedigan;Josep Casadevall;Kristaq Traja;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant was born in DATE and is currently in FAC .","The applicant , who claims to be a revolutionary by profession , was taken into custody on DATE . He was placed under judicial investigation in connection with a series of terrorist attacks in GPE and was given a life sentence on DATE for the murder of CARDINAL police officers and an acquaintance on DATE .","He was held in solitary confinement from the moment he was first taken into custody in DATE until DATE , notably in FAC ( GPE ) .","According to his lawyer , this entailed his being held in a QUANTITY cell that was run - down and poorly insulated , with an open toilet area . The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs . His sole permitted activity outside his cell was a TIME DATE walk in a triangular area that was QUANTITY long and QUANTITY wide at the base , receding to QUANTITY at the vertex . This area was walled in and covered with wire mesh . His only recreational activity was reading the newspapers or watching television on a rented set . The only visits he received were from his lawyers and , once a month , a priest . The prison authorities ignored his requests to be allowed visits from anyone else . Mail intended for the applicant had gone missing , although it had not been officially confiscated , and he had not received a DATE jacket that had been brought to the prison for him in DATE until DATE .","The Government did not dispute these facts . They said that the cell was lit by natural light , a ceiling light and a reading lamp . None of the members of the applicant \u2019s family had ever applied for permission to visit . CARDINAL requests to visit had been turned down , both from journalists .","The documents in the case file show that the applicant has received visits from CARDINAL different lawyers during his time in prison .","His current representative , who is also his wife under NORP law , visited him CARDINAL times DATE and DATE .","The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive DATE periods .","The first was taken when the applicant was first detained ( DATE ) . It consists of a form on which the following boxes were ticked : \u201c Need to prevent communication with CARDINAL or more other prisoners \u201d and \u201c Undermining of order and discipline in the prison \u201d . There were no observations by the applicant . DATE , a doctor issued a medical certificate stating :","\u201c [ The applicant \u2019s ] health is compatible with solitary confinement . However , he must , if possible , have complete rest for DATE . \u201d","A decision dated DATE to prolong the applicant \u2019s solitary confinement from DATE to CARDINAL DATE was approved by ORG . The reasons stated were the same , but the applicant made the following observations :","\u201c I consider that these solitary - confinement measures , especially the disturbances at TIME , indicate a desire to harass a political prisoner . \u201d","In a medical certificate issued DATE , a doctor","\u201c certif[ied ] that [ the applicant \u2019s ] health [ was ] compatible with his continued solitary confinement \u201d .","A decision of DATE , which was applicable from DATE to CARDINAL DATE , cited the same reasons and was approved by ORG . The applicant refused to sign the notice informing him of the decision . In a medical certificate issued DATE , a doctor","\u201c certif[ied ] that [ the applicant \u2019s ] health [ was ] compatible with his continued solitary confinement for administrative reasons \u201d .","A decision dated DATE , which was approved by ORG and was applicable from DATE to CARDINAL DATE , spoke of the \u201c need to prevent communication with CARDINAL or more other prisoners \u201d and a \u201c security measure \u201d . The applicant was transferred that day to ORG .","A proposal to prolong the measure dated DATE cited the \u201c need to prevent communication with CARDINAL or more other prisoners \u201d .","On DATE a doctor from ORG issued a certificate stating :","\u201c Health currently compatible with continued solitary confinement . \u201d","On DATE the measure was prolonged for a period of DATE starting on DATE .","On DATE a doctor from ORG issued a medical certificate stating that the applicant \u2019s health was satisfactory and compatible with solitary confinement .","A further proposal to prolong the measure dated DATE referred to \u201c the undermining of order or discipline in the prison \u201d .","On DATE the measure was prolonged for DATE starting on DATE .","A proposal of DATE for a further extension referred to \u201c the need to prevent communication with CARDINAL or more other prisoners \u201d .","On DATE a doctor from ORG issued a certificate stating that the applicant \u2019s health was satisfactory .","On DATE the measure was prolonged for a period of DATE starting on DATE .","On DATE a doctor from ORG issued a certificate stating that the applicant \u2019s health was compatible with his detention in the segregation unit .","On DATE the measure was extended for a period of DATE on DATE . A proposal dated DATE mentioned a \u201c precautionary or security measure required for CARDINAL or more of the following reasons : need to prevent communication with CARDINAL or more other prisoners \u201d .","It was not until DATE that the applicant was notified of the measure applicable for the period from DATE to CARDINAL DATE . He made the following observation :","\u201c I do not think it right that I should be asked to sign DATE . \u201d","On DATE the applicant was notified of a measure which referred to the \u201c need to prevent communication with CARDINAL or more other prisoners \u201d and to \u201c international terrorism \u201d .","On DATE a doctor from ORG issued a certificate stating that the applicant \u2019s health was compatible with his detention in solitary confinement .","A decision dated DATE , which was applicable from DATE to DATE , referred only to the \u201c need to prevent communication with CARDINAL or more other prisoners \u201d . The applicant made the following observations on the notification slip :","\u201c I note that PERSON ... , the director , has already replied to these observations , even before I have made them , it is stated below : CARDINAL.CARDINAL.CARDINAL before ORG in the prison . Consequently , the remarks I am required to make have become superfluous . Even so , my solitary confinement is a form of torture . \u201d","This measure was authorised by the head of ORG at ORG on DATE , as were those that followed .","On DATE a doctor from ORG certified that he had examined the applicant and found his health to be compatible with solitary confinement .","A proposal made on DATE referred to the \u201c need to protect [ the applicant ] from the rest of the prison population \u201d and the \u201c need to prevent communication with CARDINAL or more other prisoners \u201d . The applicant made the following remarks :","\u201c I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner . I reject the reasons given for keeping me in solitary confinement . \u201d","On DATE a doctor from ORG certified that solitary confinement was not contraindicated for the applicant .","The following reasons were given for a proposal for a further extension dated DATE :","\u201c Precautionary or security measure for CARDINAL or more of the following reasons :","( i ) need to protect you from the rest of the prison population ;","( ii ) need to prevent communication with one or more other prisoners . \u201d","The applicant made the following comments :","\u201c I have not had a check - up , been weighed or had my blood pressure taken , etc . ... I note that the lower section of the questionnaire has already been filled in , thus making a mockery of the observations which I have been asked to make . Please give me a further complete medical check - up . \u201d","A decision of DATE referred in addition to \u201c the undermining of order and discipline in the prison \u201d and \u201c potential dangerousness linked to acts of terrorism \u201d . The applicant made the following comments :","\u201c I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me . I request an immediate interview with the governor . \u201d","A decision of CARDINAL DATE again cited the \u201c need to prevent communication with one or more other prisoners \u201d .","On DATE a doctor at ORG issued a certificate certifying that the applicant \u2019s health was satisfactory .","Proposals of DATE and DATE were in the same terms as the decision of CARDINAL DATE . On signing the proposal of CARDINAL DATE , the applicant stated :","\u201c I sign under protest against an unjust repressive measure ( decision ) against a political prisoner held hostage by ORG . \u201d","On DATE a ORG doctor issued a certificate certifying that the applicant \u2019s health was satisfactory .","It was followed by a further certificate on DATE stating that the applicant was fit enough to remain in solitary confinement and a certificate of DATE stating that solitary confinement was not contraindicated . A further certificate drawn up on DATE stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement .","Proposals made on DATE , DATE and DATE cited the need for \u201c precautionary and security measures in view of the prisoner \u2019s character and record \u201d .","The applicant commented as follows on the proposal of CARDINAL DATE :","\u201c I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me . Please provide me with a copy . \u201d","On the proposal of DATE , he noted :","\u201c The signature on this notice by the disloyal deputy director PERSON further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me . \u201d","The measure dated DATE referred to \u201c precautionary and security measures in view of the prisoner \u2019s character and record \u201d .","On DATE a doctor from FAC issued a medical certificate in which he stated :","\u201c The applicant \u2019s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment . \u201d","Proposals made on DATE and DATE stated :","\u201c The prisoner must remain in administrative solitary confinement on order and security grounds , in view of his character and record and the nature of his court cases . \u201d","The Ministry of Justice stated in decisions of DATE and DATE :","\u201c The character of this prisoner , who is an ORG [ high - security prisoner ] and objectively dangerous , in particular because of the nature and length of the sentence he faces , justifies his continued solitary confinement on order and security grounds . \u201d","On DATE the senior doctor at FAC issued a certificate which read :","\u201c The circular of DATE on solitary confinement states that the opinion of a doctor will only be sought after a DATE \u2019s confinement . Last certificate issued on ( illegible ) . I do not , therefore , need to append a certificate regarding prolongation to this note . \u201d","On DATE another prison doctor certified that the applicant \u2019s health was compatible with his detention or continued detention in solitary confinement .","A further certificate dated DATE confirmed that the applicant \u2019s health was compatible with his continued detention in solitary confinement .","A decision of CARDINAL DATE cited the following reasons :","\u201c You must remain in solitary confinement for a further period of DATE on order and security grounds , in view of your character , your classification as an ORG , and the nature of your convictions and of the cases currently pending . \u201d","A decision of DATE , which took effect on DATE , read as follows :","\u201c It is necessary to prolong your solitary confinement for a further period of DATE in order to preserve order and security in the prison in view of your dangerousness , your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal . \u201d","The applicant made the following observations :","\u201c I note that the infamous masquerade by the NORP militant PERSON , who runs ORG Ministry of Justice on behalf of the imperialist forces that are seeking to reduce GPE to the level of a suzerain of GPE , continues . To heck with Human Rights and with PERSON itself . ORG . \u201d","DATE . On DATE the authorities relied on","\u201c order and security grounds , in view of your character , your classification as an ORG and the offences for which you have been imprisoned \u201d .","The decisions of DATE , DATE and DATE were couched in identical terms to the decision of DATE , save that the end of the sentence read \u201c given your access to outside help \u201d .","On DATE the senior doctor at FAC issued a medical certificate which read :","\u201c I , the undersigned , ... declare that [ the applicant ] is in quite astounding physical and mental condition after DATE in solitary confinement .","However , it is not proper for a patient \u2019s doctor to be required to issue a certificate that ought to be a matter for expert opinion . It is very difficult for a doctor to sanction solitary confinement on administrative , rather than medical , grounds . \u201d","On DATE another doctor issued a certificate in the following terms :","\u201c I , the undersigned , ... certify that I have DATE examined [ the applicant ] .","No clinical examination was carried out . However , in view of his current mental condition , I am unable to give a medical opinion on whether he is fit to remain in solitary confinement . \u201d","On DATE and DATE ORG ratified decisions by the governors of ORG and ORG , dated DATE and DATE respectively , to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer .","The following reasons were stated in the decision of CARDINAL DATE :","\u201c Regard has been had to your personality , your classification as an ORG , the length of your sentence ( PERSON [ life imprisonment ] ) , the nature of the offences and your involvement in an international terrorist network . All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds . \u201d","On DATE a doctor from FAC certified that she had seen the applicant but had not been able to carry out a physical examination . She added :","\u201c However , in view of his current mental state , I am unable to give a medical opinion on whether he is fit to remain in solitary confinement . \u201d","On DATE the applicant commented as follows :","\u201c I have once again filled in this form , having already done so on DATE ... I denounce \u2018 the white torture\u2019 of perpetual solitary confinement which , following the \u2018 serious provocation of CARDINAL December CARDINAL\u2019 , has been aggravated by the obstruction of the fanlight , which now only opens to an angle of PERSON ( QUANTITY ) , preventing fresh air getting in . This is on top of the ban on my receiving visits or LANGUAGE lessons , in breach of the undertakings . You are committing a crime of \u2018 lese - humanity\u2019 . \u201d","On DATE a doctor from ORG practising in FAC issued the following certificate :","\u201c I , the undersigned , ... state that the doctors from the medical service at ORG are not qualified to judge whether the physical and mental condition of the prisoner PERSON , who is currently being held in ORG , is compatible with his continued solitary confinement . \u201d","On DATE it was decided to prolong the solitary confinement","\u201c in order to preserve order and security in the prison in view of your dangerousness , your ability to influence fellow inmates and the risk of your escaping given your access to outside help \u201d .","The same reasons were cited in a further extension of DATE , while a decision of DATE was worded in almost identical terms .","On DATE the doctor in charge of ORG ( \u201c the OCTU \u201d ) wrote to the governor of ORG in these terms :","\u201c I have met PERSON ... as I was asked for an opinion on whether there is any contraindication to this patient \u2019s remaining in solitary confinement .","Even though Mr PERSON is in reasonable physical and mental condition , strict solitary confinement for DATE and DATE is ultimately bound to cause psychological harm .","It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision .","... \u201d","On DATE the doctor who issued the certificate of DATE issued a second certificate in similar terms .","The following reasons were stated in a decision that was applicable from DATE :","\u201c ... in order to preserve order and security in the prison in view of your dangerousness , your ability to influence fellow inmates and the risk of your escaping given your access to outside help . \u201d","On DATE the doctor in charge of the ORG issued a medical certificate after examining the applicant \u201c for the purposes of the medical opinion required for continued solitary confinement \u201d . He stated that the applicant presented","\u201c a physical and mental condition that was entirely reasonable after DATE in solitary confinement \u201d ,","adding , however , that","this opinion does not constitute an expert opinion , which I am not qualified to give \u201d .","The following reasons were given for prolonging the solitary confinement in a decision of CARDINAL DATE :","\u201c It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape . \u201d","In his observations , the applicant noted in particular :","\u201c DATE of strict solitary confinement , a ban on receiving visits or NORP lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken . \u201d","On DATE the measure was renewed for a further DATE on the following grounds :","\u201c Regard has been had to your character , your classification as an ORG , the length of your sentence ( PERSON ) , the nature of the offences and your involvement in an international terrorist network . All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds . \u201d","Decisions of DATE , DATE and DATE read as follows :","\u201c It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape . The fact that you have received a life sentence , your classification as a high - security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement . \u201d","On DATE an assistant doctor from the OCTU at FAC issued a medical certificate in the following terms :","\u201c I , the undersigned , Doctor ... , an assistant doctor from the OCTU at FAC in GPE , certify that I have examined Mr PERSON , who was born on CARDINAL , in connection with a request for him to remain in solitary confinement .","From the medical standpoint , the problem posed by prolonged solitary confinement over DATE is that it may affect the prisoner \u2019s physical and mental health . \u201d","On DATE the doctor in charge of the OCTU at FAC provided ORG with the following summary of the medical care the applicant was receiving :","\u201c This patient , who , as you are aware , is in the segregation unit , receives CARDINAL mandatory medical visits from a member of the OCTU medical team DATE , as required by LAW .","He is currently in excellent somatic health . I am not qualified to express an opinion on his mental health .","In addition , Mr PERSON may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit .","He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses .","He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ...","Biological tests are performed regularly . ...","The treatment Mr PERSON has been receiving can be equated to comfort treatment : ...","It should be noted that Mr PERSON has refused any psychological help from the ORG [ ORG ] .","... \u201d","In DATE a further decision to prolong the solitary confinement was taken \u201c in order to preserve security and order , which are under serious threat owing to the applicant \u2019s implication in terrorist networks , his dangerousness and the risk of his escaping \u201d .","DATE . On DATE the applicant was transferred to FAC ( d\u00e9partement of PERSON ) , where his solitary confinement ended . On CARDINAL DATE he lodged a fresh application with the ORG , in which he complained of the new conditions in which he was being held and , in particular , of the distance from GPE .","In DATE a book that had been written by the applicant with the help of a journalist was published under the title L\u2019islam r\u00e9volutionnaire ( \u201c NORP \u201d ) .","On DATE ORG wrote the following letter to ORG :","\u201c Mr PERSON received a somatic and psychiatric medical examination on his arrival at the prison on DATE .","He has at no stage been placed in solitary confinement in FAC .","As regards his somatic health , Mr PERSON receives the statutory care and may consult the OCTU on request .","As to his mental health , he was seen by an ORG psychiatrist as part of the standard induction procedure . No follow - up was prescribed at the time and the patient has not asked to see a psychiatrist since . He was offered an examination and this took place on CARDINAL DATE . The ORG have not recommended any follow - up to that appointment . \u201d","On DATE the applicant was transferred to ORG in the GPE area where he was again placed in solitary confinement . This followed a television programme in which , in the course of a telephone interview with a journalist , the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were \u201c no innocent victims \u201d .","On DATE a doctor at ORG issued a medical certificate in the following terms :","\u201c I , the undersigned , ... certify that the prolonged period of solitary confinement to which Mr PERSON , who was born on DATE , is subject is detrimental to his mental health .","Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests . \u201d","On DATE another doctor issued a medical certificate which read :","\u201c I , the undersigned , ... regularly see Mr PERSON , a prisoner in the segregation unit .","His continued solitary confinement is damaging his health ; it has now lasted for DATE and it would appear desirable from the medical standpoint for it to cease . \u201d","On DATE the applicant was transferred to ORG and on DATE to FAC . In both institutions he was kept in solitary confinement with the measure being periodically renewed , including on DATE ( see below ) .","On DATE and CARDINAL DATE the senior doctor at the OCTU at FAC issued CARDINAL medical certificates in exactly the same terms :","\u201c I , the undersigned , ... certify that Mr PERSON , who was born on DATE , has been in my care since his arrival at the prison .","The problems which Mr PERSON has had with his physical health are now stable .","Mr PERSON continues to make the same complaints about the difficulties of being held in full solitary confinement .","Since he does not wish to be treated by ORG at FAC and I am not qualified to determine the impact of the conditions in which he is detained on his mental state , a medical and psychological assessment would be desirable .","Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law . \u201d","DATE . On DATE the applicant was transferred to ORG , where he is held under the ordinary prison regime .","On DATE the applicant lodged an application for judicial review with ORG , arguing that the decision of DATE to place him in solitary confinement should be set aside .","In a judgment of DATE , which was served on the applicant on DATE , ORG rejected the application , holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside .","The applicant lodged an application for an order setting aside , on the grounds of formal invalidity , the decision of CARDINAL DATE to keep him in solitary confinement . In a judgment of DATE , ORG held as follows .","\u201c Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on DATE in favour of prolonging Mr PERSON solitary confinement , there is no evidence in the file to show that the regional director obtained the opinion of ORG before delivering his reasoned report to the Minister of ORG , even though , by virtue of the aforementioned provisions of LAW , the ORG is the only body empowered to decide whether solitary confinement should continue beyond DATE . It follows that Mr PERSON argument that the decision of CARDINAL DATE to prolong his solitary confinement was defective and must be set aside is well - founded .","As regards the submissions on the issue of compensation .","Although the formal invalidity of a solitary - confinement measure constitutes a fault capable of engaging the State\u2019","The investigation shows that Mr PERSON has been sentenced to life imprisonment for the murder of police officers . He has been placed under investigation in connection with various terrorist cases , inter alia , for voluntary homicide and using an explosive device to destroy movable property . The applicant might use communications in FAC or on the outside to re - establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape . That being so , the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for DATE . The damage alleged by Mr PERSON , which included the loss of contact with other prisoners , can not , therefore , be considered to have been a consequence of the procedural defect in the decision of CARDINAL DATE , so that his request for an order requiring the ORG to compensate him for the damage he claims to have sustained is unfounded . ... \u201d","\u201c Save in the circumstances set out in Articles D. CARDINAL to D. CARDINAL , prison staff must at all times be able to verify a prisoner \u2019s presence .","At TIME it must be possible to light cells when necessary . Cells should be entered only for good reason or in the event of imminent danger . In all cases , intervention must be by CARDINAL staff members and an officer , if CARDINAL is on night duty . \u201d","\u201c Rounds shall be made after lights out and during TIME at set times to be changed DATE by the senior custody officer , under the authority of the prison governor . \u201d","[ The words in italic were added or amended by the decrees of DATE and DATE : Decree no . CARDINAL of DATE , Article CARDINAL , Official Gazette of CARDINAL DATE , and Decree no . CARDINAL of DATE , ORG CARDINAL and CARDINAL , ORG of DATE . ]","\u201c Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure .","Orders for prisoners to be placed in solitary confinement shall be made by the prison governor , who shall inform the regional director and the judge responsible for the execution of sentences without delay . The prison governor shall also report to ORG at the first meeting following the prisoner \u2019s confinement or objection to a request for his or her confinement .","The prisoner may , either personally or through counsel , send any observations he or she has on the decision to the judge responsible for the execution of sentences .","The medical team shall be given a list of the prisoners in solitary confinement DATE . Prisoners in solitary confinement will receive a medical examination in accordance with Article D. CARDINAL . If the doctor considers it appropriate in view of the prisoner \u2019s health , he or she shall give an opinion on whether solitary confinement should cease .","Solitary confinement may only exceed DATE if a new report has been made to ORG and the regional director so decides .","Solitary confinement may only exceed DATE from the date of the initial decision if the Minister of ORG so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of ORG and the prison doctor .","The prison governor shall keep a solitary - confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections . \u201d","[ Decree no . CARDINAL of DATE , Article CARDINAL , Official Gazette of DATE , and Decree no . CARDINAL of DATE , Article CARDINAL , ORG of DATE ]","\u201c Solitary confinement shall not constitute a disciplinary measure .","Prisoners in solitary confinement shall be subject to the ordinary prison regime . \u201d","Extracts from the Circular of CARDINAL DATE implementing the decree amending LAW","\u201c CARDINAL . Solitary confinement as a precautionary or security measure","Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner \u2019s request or on the governor \u2019s own initiative . Since the governor has sole power to order solitary confinement , he or she will need to take particular care in setting out the reasons .","NORP The need to state reasons","Since the ORG d\u2019Etat \u2019s PERSON judgment of CARDINAL DATE , the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions \u2018 giving cause for complaint\u2019 .","Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement , which continue to be regarded in the most recent decisions as \u2018 internal administrative measures\u2019 that are not amenable to review .","The courts consider on the basis of LAW that \u2018 solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held\u2019 ( ORG d\u2019Etat , CARDINAL DATE , PERSON , and PERSON d\u2019Etat , DATE , PERSON ) .","Nature of the reasons","It is not sufficient simply to repeat the succinct \u2018 as a precautionary or security measure\u2019 formula used in LAW .","... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm .","The reasons must state whether the measure has been taken to avoid the risk of an escape , violence or coercion , concerted action liable to disrupt the prison community , connivance or conspiracy , or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement .","Invalid reasons","An order for solitary confinement can not be made solely for the following reasons .","Nature of the offence","The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused can not by themselves justify solitary confinement .","...","II . PROCEDURE IN SOLITARY CONFINEMENT CASES","...","Content of the decision","The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing . The sheet contains CARDINAL sections , CARDINAL for the reasons and the other for the prisoner \u2019s observations . Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision .","...","Copies of documents for the authorities","Article D. CARDINAL - CARDINAL , sub - paragraph CARDINAL , of LAW requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay .","A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation .","Lifting of the measure","Solitary confinement is not intended to continue indefinitely , as it must be justified by factual and legal considerations , which may change or cease to apply .","In view of the harmful effects of prolonged solitary confinement , the prison governor and regional director must closely monitor the length of the measure .","The measure will automatically lapse in the circumstances set out in LAW . Consideration should also be given on the ordinary renewal dates to lifting the measure .","The prisoner must be notified of a decision to lift the measure . If the prisoner has asked to be placed in solitary confinement , his or her observations ( if any ) must be obtained .","Prolongation of the measure","Unless a decision to prolong the measure is made at DATE , it will automatically lapse . ...","Proposals to prolong the measure","The prolongation procedure must be set in motion DATE before the DATE period expires .","Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and , if they so wish , be given TIME in which to prepare their observations , which they may submit at a hearing held for that purpose . They are then notified of the proposal .","No prolongation may be proposed without a prior assessment of the prisoner \u2019s situation made with the aid , inter alia , of the record of observation of the prisoner in solitary confinement .","If the prison governor considers it necessary to prolong the measure , he or she must compile a file containing :","( i ) The printed proposal form containing a statement of reasons , which must be up to date when the request is made . The form will contain confirmation that the prisoner has been notified of the proposal , the date of the verbal report to ORG and the date of transmission to the regional director .","( ii ) NORP The liaison form .","( iii ) The report on the prisoner \u2019s behaviour in solitary confinement based , in particular , on the record of observation .","Any report by the medical team or opinion by the doctor will be appended to the proposal file .","NORP The regional director \u2019s investigation","The file should be sent to ORG DATE before the DATE period expires . ORG will examine the file and , if necessary , request additional documents or information . It should make sure it has a fully up - to - date statement of reasons for the proposal to prolong the measure .","The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the DATE period in all cases . The decision shall be reasoned .","If it is decided not to prolong the measure , it will immediately lapse and the prisoner will be returned to the ordinary regime .","The prisoner will be given a copy of the decision to prolong the measure on being notified of it .","The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision .","The same procedure shall be followed if prolongation appears necessary at the end of a further DATE period . Regional directors shall consider the reasons for a further extension with particular care . In particular , they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible .","When a decision to prolong solitary confinement has already been taken by a regional director , the measure may be lifted during the statutory periods only by a decision of the same authority , unless it automatically lapses under LAW . In such cases , the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied , if applicable , by a supporting report . The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for .","Prolongation after DATE","Solitary confinement should be prolonged after DATE only in exceptional cases . The Minister of ORG has sole decision - making power , in accordance with LAW , sub - paragraph CARDINAL .","Proposals to prolong solitary confinement","The prison governor must send the proposal to prolong solitary confinement to the regional director before DATE to allow ORG and the central authority time to examine it thoroughly .","A doctor \u2019s opinion must be sought if it is proposed to prolong solitary confinement beyond DATE . If the doctor gives an opinion , it must be set out in writing and forwarded with the proposal . If the doctor does not give an opinion , he or she should initial at least the form containing the proposal .","The prison governor will submit the proposal to ORG for an opinion , which the latter will indicate on the proposal form .","The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond DATE . If the prisoner so wishes , he or she may be given TIME in which to prepare observations to be made at a hearing at the end of the allotted time . The prisoner is then notified of the proposal .","The prison governor must append to the proposal a summary report on the prisoner \u2019s behaviour since the initial decision was made .","Lastly , the liaison record ( III.CARDINAL ) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure .","NORP The regional director \u2019s report","The regional director should draw up a report on the basis of the prison governor \u2019s proposal and give a reasoned opinion on whether the measure should be prolonged beyond DATE .","Before doing so , the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers .","He or she may also recommend other measures , such as a transfer .","The file containing the proposal to prolong solitary confinement must be sent to the head office of ORG DATE before the preceding measure expires . The central authority must be given time to examine the file and to seek alternatives .","NORP The decision of the Minister of Justice","The central authority will send the Minister of ORG \u2019s decision ( which will normally be taken by the director of ORG under delegated authority ) to ORG DATE before DATE of solitary confinement expires so that the prison can be informed in time .","The prisoner should be provided with a copy of the decision and an original should be placed in the file .","A verbal report on the final decision should be made to ORG .","The head office of ORG will retain the power to decide on further DATE extensions beyond DATE . The matter will be referred back to the central authority in accordance with the procedure described in this paragraph DATE before the new period of solitary confinement is due to end .","Apart from the cases of automatic lapse set out in LAW , power to lift the measure after DATE is also vested in the central authority .","...","PERSON THE SOLITARY CONFINEMENT REGIME","NORP and national recommendations","Following its visit to GPE of DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that \u2018 a balance [ be struck ] between the requirements of the case and the application of a solitary confinement type regime\u2019 , in view of the harmful consequences that that regime could have on the prisoner . It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities , including outdoor activities .","These recommendations tie in with the findings of the working groups that have been set up by or at the request of ORG .","Implementation of the ordinary prison regime","In accordance with LAW , prisoners in solitary confinement are subject to the ordinary prison regime .","CARDINAL Prisoners must be permitted to make full use of their rights of defence , which are protected by instruments of constitutional or international rank , in accordance with the procedure set out in LAW and the distinction it makes between convicted and remand prisoners . The prohibition on communication referred to in LAW can not apply to communication with lawyers .","CARDINAL The right to relations with members of one \u2019s family and others are exercised through prison visits . Subject to the arrangements for individual access to the visiting room , there shall be no restrictions on prison visits unless a court has ordered solitary confinement .","There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence . However , stricter monitoring of correspondence may be justified by court - imposed imperatives , the prisoner \u2019s classification as a high - security risk in accordance with Article D. CARDINAL - CARDINAL of LAW , or a recommendation for the prisoner to be placed on suicide watch .","Similarly , ORG rights to make telephone calls in penal establishments in accordance with LAW of LAW are not suspended by solitary confinement .","CARDINAL NORP There is no general restriction on the right of prisoners in solitary confinement to access to news , subject to the normal supervision prisoners receive throughout their term in prison . Prisoners in solitary confinement retain the right to buy newspapers of their choice , or to use a radio or television subject to the usual conditions .","If the library operates a direct - access system , it must arrange special opening TIME for prisoners in solitary confinement or keep a separate stock for the segregation unit .","CARDINAL Religious observance .","Religious observance in the segregation unit shall take place in accordance with the rules set out in ORG D. CARDINAL to D. CARDINAL of LAW . Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners , they may be authorised to attend special services arranged in agreement with the chaplain .","CARDINAL ORG .","The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle :","( i ) Cells must receive natural light through a window which also affords adequate ventilation , as required by LAW of LAW .","( ii ) The exercise yard must provide access to the open air . Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard . Exercise periods should be for the same length as for ordinary - regime prisoners .","( iii ) Sporting activities should be made available in the segregation unit , for example by the provision of an exercise bike , gym mat or table - tennis table .","Activities in the segregation unit","Although access to communal activities provided for ordinary - regime prisoners is suspended during solitary confinement , prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue , allowing prisoners to assemble in small groups at times .","Thus , whenever possible , the prison governor must permit prisoners in solitary confinement to assemble in groups of CARDINAL for exercise or activities . A room , which may be multipurpose ( sport , reading ) should be set aside for this purpose . It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner \u2019s placement in solitary confinement , the aim pursued and the character and conduct of the prisoner or prisoners concerned .","Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged , as they ensure that activities are also directed towards training .","...","Monitoring of and dialogue with prisoners in solitary confinement","ORG","A record of observation must be compiled for all prisoners in solitary confinement ; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner \u2019s behaviour in solitary confinement .","The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner .","Staff should consult it regularly and in any event if it is intended to propose prolonging the measure .","A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure .","All prisons shall be responsible for creating a record of observation meeting the stated objective or , if one already exists , improving it .","Dialogue","In order to avoid excessive social isolation , it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement . Not only does this reduce the degree of isolation , especially for prisoners who do not receive visits , it also assists in monitoring the prisoner \u2019s character .","For the same reasons , senior prison officers and socio - educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners . \u201d","CARDINAL . Case - law of the ORG d\u2019Etat","In a judgment of DATE , the ORG d\u2019Etat departed from its previous case - law when it held :","\u201c The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting , cultural , teaching and training activities and paid work that are available to other prisoners collectively . Such a measure may be imposed for a period of DATE and may be prolonged . In these circumstances , even though LAW states that solitary confinement is not a disciplinary measure , as the prisoners concerned are subject to the ordinary prison regime , a decision to place a prisoner in solitary confinement against his or her wishes will , in view of the effects it has on the conditions of detention , be amenable to judicial review . Accordingly , the Minister of ORG \u2019s submission that ORG erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of FAC to place him in solitary confinement is unfounded .","ORG did not err in law when it held that a decision to place a prisoner in solitary confinement was CARDINAL of the decisions for which the first section of the LAW DATE requires reasons to be stated . In finding that insufficient reasons had been stated in the impugned decision , ORG reached a decision in its unfettered discretion which , in the absence of any distortion of the facts , can not be challenged in this ORG .","It follows from the foregoing that the Minister of ORG is not entitled to make an order setting aside the impugned judgment .","It is appropriate in the circumstances of this case to make an order requiring the ORG to pay PERSON the sum of MONEY he claimed under Article L. CARDINAL - CARDINAL of FAC . \u201d","Extracts from the reports of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) and the responses of the government of GPE ( unofficial translation )","Report on the visit of CARDINAL to DATE","\u201c CARDINAL . The ORG pays particular attention to prisoners held under conditions akin to solitary confinement . It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary - confinement regime , which is a step that can have very harmful consequences for the person concerned . Solitary confinement can , in certain circumstances , amount to inhuman and degrading treatment . In any event , it should be as short as possible .","The delegation visited the segregation units in ... and in the remand prisons of ORG ... It met a number of prisoners who had been held in solitary confinement for long , and in some instances very long , periods .","... Furthermore , the solitary - confinement cells in GPE - La Sant\u00e9 Prison could be described as reasonable ( cf . CARDINAL ) .","As regards the prison regime , which according to LAW is an ordinary regime , the delegation found that the activities remained limited ( reading , television , and in some instances in - cell educational or training activities ) . ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons ( such as religious representatives ) and some daily contact with warders .","As regards outdoor exercise , the prison authorities said that DATE walk was authorised DATE , although conditions were less than satisfactory .","The ORG pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement . In paragraph CARDINAL of their interim report , the NORP authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded . Doctors were required to inform the prison governor in writing if they considered the prisoner \u2019s physical or mental health to be at risk .","In that connection , the NORP authorities informed the delegation that a draft decree ( which is due to come into force on DATE ) would establish new rules for gaining access to a doctor and assessing a prisoner \u2019s condition .","As to the other safeguards , it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary . The manner of its implementation also appears to vary from CARDINAL region to another . ... At FAC , the delegation heard allegations by prisoners in solitary confinement that this was no longer the case . These were credible allegations , since , unlike in GPE , the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement . The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of LAW . Furthermore , the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief .","In the light of the foregoing , the ORG recommends that the NORP authorities :","( i ) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact ;","( ii ) NORP ensure that solitary confinement is as short as possible ; in that connection , the DATE review of the need for solitary confinement should entail a full assessment based , if appropriate , on a medical and social report ;","( iii ) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure ( it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds ) .","The ORG would also like to know whether the decree announced by the NORP authorities has come into force and to receive a copy if it has . \u201d","Responses of the government of GPE to the DATE report","Observations ( interim report )","\u201c ( i ) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact ( paragraph CARDINAL )","The rules governing solitary confinement are being revised . Articles D. CARDINAL - CARDINAL and NORP CARDINAL of the Code of Criminal Procedure and the circular of CARDINAL DATE , which are currently in force , need supplementing in order to improve the procedure and to limit the duration of the measure .","Draft Article D. CARDINAL - CARDINAL accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit . It also makes the director of ORG responsible for deciding whether to prolong solitary confinement that has exceeded DATE .","The entry into force of this LAW , which will be included in a vast decree amending more than CARDINAL Articles of LAW , has been delayed , as the decree is part of a governmental programme of ORG reform .","It is intended that a draft circular will be issued when the decree comes into force . It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement , in particular through the organisation of regular meetings . The provision of individual teaching or training programmes will also be recommended .","( ii ) NORP ensure that solitary confinement is as short as possible ; in that connection , the DATE review of the need for solitary confinement should entail a full assessment based , if appropriate , on a medical and social report ( paragraph CARDINAL )","A draft circular is being prepared .","( iii ) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure ( it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds ) ( paragraph CARDINAL )","A draft circular is being prepared . \u201d","Follow - up report","\u201c ( i ) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact ( paragraph CARDINAL )","The draft decree referred to in the interim report , which brings the regulatory section of LAW into line with a number of statutes that are already in force , is in the process of promulgation .","It will amend , inter alia , Article D. CARDINAL - CARDINAL of LAW by making the director of ORG responsible for deciding whether to prolong solitary confinement that has exceeded DATE . It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care .","Pursuant to this provision , a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime , which entails , inter alia :","( a ) full compliance with ORG ordinary rights to relations with their family , representatives and others ;","( b ) DATE continued dialogue between staff and the prisoner in solitary confinement through regular meetings ;","( c ) NORP the organisation , to the extent possible , of special activities in the segregation unit and of individual teaching and training programmes .","This draft was prepared after wide consultation of decentralised services . An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular , which could be available immediately after publication of the aforementioned decree .","( ii ) NORP ensure that solitary confinement is as short as possible ; in that connection , the DATE review of the need for solitary confinement should entail a full assessment based , if appropriate , on a medical and social report ( paragraph CARDINAL )","The draft circular establishes a mechanism for controlling the length of solitary - confinement measures : before a decision to prolong the measure beyond DATE can be taken , the regional director must examine an observation report from the prison governor based , in particular , on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation .","Any event with suspensive effect that either entails release or is for a period exceeding DATE will result in the lapse of the solitary - confinement measure and the prisoner \u2019s return to ordinary detention .","( iii ) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure ( it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds ) ( paragraph CARDINAL )","The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement . The prison governor will not , however , be required to disclose information to a prisoner that may put people or the prison at risk ; this has been accepted by the ORG . \u201d","report on the visit from CARDINAL to CARDINAL","\u201c CARDINAL . In its reports of DATE the ORG stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime , which is a step that can have very harmful consequences for the person concerned . Solitary confinement can , in certain circumstances , amount to inhuman and degrading treatment . In any event , it should be as short as possible . Following its visits , the ORG advised of its concerns regarding various aspects of solitary confinement in GPE ( cf . paragraphs CARDINAL et seq . , and CARDINAL - CARDINAL of the reports ) . Subsequently , in a circular dated DATE , the Minister of ORG issued instructions concerning , inter alia , the grounds on which prisoners could be placed in solitary confinement , the procedure to be followed and the regime for prisoners in solitary confinement . These instructions address some of the concerns expressed by the ORG in its reports on previous visits .","Nevertheless , during its visits the ORG delegation found serious shortcomings in the manner in which the earlier recommendations of the ORG and the ministerial instructions had been implemented in practice .","The ORG has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit . Its reservations concern both the length of the confinement ( which in some instances had been for DATE on end ) and the highly restrictive regime to which such prisoners are subject ( total lack of structured or communal activities ) .","NORP The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable . However , the cells accommodating such prisoners at FAC had only limited access to natural light . In addition , in the CARDINAL institutions visited , the exercise yards \u2013 which were often also used by prisoners in solitary confinement for disciplinary reasons \u2013 were uninviting .","NORP The ministerial instructions state : \u2018 The essential features of the ordinary prison regime must , so far as possible and subject to practical constraints , be retained in the segregation unit\u2019 ( point CARDINAL ) . They further state , inter alia : \u2018 there shall be no restrictions on prison ORG ( point CARDINAL ) and \u2018 prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue , allowing prisoners to assemble in small groups at FAC , that \u2018 it is for the prison governor to assess how and when such groups may be organised\u2019 and \u2018 individual educational programmes or distance teaching offered by teachers or instructors should not be ORG ( point CARDINAL ) . The instructions further require increased surveillance of prisoners and specify : \u2018 in order to avoid excessive social isolation , it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement\u2019 ( point CARDINAL ) .","From the information obtained by the delegation , it would seem that , with the odd exception ( for instance as regards contact with the outside world ) , the vast majority of the aforementioned requirements have not been complied with . For example , the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was ORG and even there association was restricted ( to exercise outdoors and in the fitness room ) .","The ORG recommends that the authorities take measures without delay to give full effect to the Minister of ORG \u2019s instructions of DATE concerning solitary confinement for administrative reasons \u2013 under paragraphs CARDINAL.CARDINAL.CARDINAL , CARDINAL and CARDINAL in particular .","The ORG also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons . The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure ( for instance , in CARDINAL case , the measure was imposed for : \u2018 serious damage to property belonging to the prison that put prison security at ORG ) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped ( \u2018 to maintain order in the GPE or \u2018 risk of ORG ) . In CARDINAL case the prisoner had been held in solitary confinement since DATE \u2018 because of the nature of the offences of which he had been convicted\u2019 .","In summary , it would appear that the ministerial instructions , namely \u2018 Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm\u2019 , are not always fully complied with ( cf . point CARDINAL ) .","The ORG recommends that the NORP authorities carry out a case - by - case review of compliance with the instructions issued in DATE with regard to solitary confinement for administrative reasons .","Lastly , the ORG understands that the issue of the nature and extent of available remedies has not yet been resolved ( cf . paragraph CARDINAL of the report on the DATE visit ) . In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority .","The ORG recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority , preferably a judge . Indeed , that is the spirit of the various proposals that are currently pending before the NORP authorities ( for instance , the PERSON report and the report of the ORG investigation ) . \u201d","Response of the government of GPE","\u201c ( i ) take measures without delay to give full effect to the Minister of ORG \u2019s instructions of DATE concerning solitary confinement for administrative reasons \u2013 under paragraphs CARDINAL.CARDINAL.CARDINAL , CARDINAL and CARDINAL in particular ( paragraph CARDINAL )","( ii ) carry out a case - by - case review of compliance with the instructions issued in DATE with regard to solitary confinement for administrative reasons ( paragraph CARDINAL )","Power to take decisions on solitary confinement is vested in the Minister of ORG if the confinement has exceeded one year .","There are currently CARDINAL prisoners who have been in solitary confinement for DATE . Of these , CARDINAL are in prisons for convicted prisoners and CARDINAL in prisons for remand prisoners .","The majority of these prisoners were placed in solitary confinement at their own request , either on account of the offence for which they were imprisoned , or of their occupation before they were imprisoned .","Improvements are being made to the segregation units to make them compliant with the circular of DATE . The prisons to be built as part of the \u2018 CARDINAL ORG will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular .","Furthermore , in accordance with the circular of DATE on solitary confinement , it is the regional director of ORG or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement . In addition , the prison inspectorate verifies compliance with these obligations when carrying out prison visits .","( iii ) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority , preferably a judge ( paragraph CARDINAL )","Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons . \u201d","Extracts from the Guidelines on human rights and the fight against terrorism , adopted by ORG DATE","\u201c III . Lawfulness of anti - terrorist measures","All measures taken by GPE to combat terrorism must be lawful .","When a measure restricts human rights , restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued .","IV . Absolute prohibition of torture","The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited , in all circumstances , and in particular during the arrest , questioning and detention of a person suspected of or convicted of terrorist activities , irrespective of the nature of the acts that the person is suspected of or for which he \/ she was convicted .","...","ORG . Detention","A person deprived of his \/ her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity .","NORP The imperatives of the fight against terrorism may nevertheless require that a person deprived of his \/ her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners , in particular with regard to :","( i ) the regulations concerning communications and surveillance of correspondence , including that between counsel and his \/ her client ;","( ii ) placing persons deprived of their liberty for terrorist activities in specially secured quarters ;","( iii ) the separation of such persons within a prison or among different prisons ,","on condition that the measure taken is proportionate to the aim to be achieved . \u201d","CARDINAL . Extracts from Recommendation Rec(CARDINAL)CARDINAL of ORG to member States on ORG adopted on DATE","\u201c ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,","Having regard to LAW and the case - law of ORG ;","Having regard also to the work carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports ;","Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law ;","Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety , security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates , thus preparing them for their reintegration into society ;","...","Recommends that governments of member PERSON :","\u2013 be guided in their legislation , policies and practice by the rules contained in the appendix to this recommendation , which replaces Recommendation No . R ( CARDINAL ) CARDINAL of ORG on ORG :","...","Appendix to Recommendation Rec(CARDINAL)CARDINAL","...","Basic principles","All persons deprived of their liberty shall be treated with respect for their human rights .","Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .","Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .","...","CARDINAL NORP In all buildings where prisoners are required to live , work or congregate :","a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;","b. artificial light shall satisfy recognised technical standards ; ...","...","CARDINAL Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense .","...","CARDINAL ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential .","...","CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .","CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .","...","CARDINAL NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .","...","CARDINAL Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers , periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case .","...","CARDINAL NORP The regime provided for all prisoners shall offer a balanced programme of activities .","CARDINAL NORP This regime shall allow all prisoners to spend TIME a day outside their cells as are necessary for an adequate level of human and social interaction .","CARDINAL NORP This regime shall also provide for the welfare needs of prisoners .","...","CARDINAL Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .","CARDINAL When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise .","CARDINAL NORP Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes .","CARDINAL ORG authorities shall facilitate such activities by providing appropriate installations and equipment .","CARDINAL ORG authorities shall make arrangements to organise special activities for those prisoners who need them .","CARDINAL LOC opportunities , which include sport , games , cultural activities , hobbies and other leisure pursuits , shall be provided and , as far as possible , prisoners shall be allowed to organise them .","CARDINAL ORG shall be allowed to associate with each other during exercise and in order to take part in recreational activities .","...","CARDINAL NORP The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs , to attend services or meetings led by approved representatives of such religion or beliefs , to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs .","...","CARDINAL ORG who are foreign nationals shall be informed , without delay , of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their ORG .","...","Prison authorities shall safeguard the health of all prisoners in their care .","...","CARDINAL ORG services in prison shall be organised in close relation with the general health administration of the community or nation .","...","CARDINAL ORG services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .","CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .","...","CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement , shall visit such prisoners DATE , and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff .","CARDINAL NORP The medical practitioner shall report to the director whenever it is considered that a prisoner \u2019s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment , including conditions of solitary confinement .","...","CARDINAL The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody .","CARDINAL LOC security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control .","CARDINAL NORP As soon as possible after admission , prisoners shall be assessed to determine :","a. the risk that they would present to the community if they were to escape ;","b. the risk that they will try to escape either on their own or with external assistance .","CARDINAL Each prisoner shall then be held in security conditions appropriate to these levels of risk .","CARDINAL The level of security necessary shall be reviewed at regular intervals throughout a person \u2019s imprisonment .","Safety","CARDINAL.CARDINAL As soon as possible after admission , prisoners shall be assessed to determine whether they pose a safety risk to other prisoners , prison staff or other persons working in or visiting prison or whether they are likely to harm themselves .","CARDINAL Procedures shall be in place to ensure the safety of prisoners , prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety .","...","CARDINAL LOC high security or safety measures shall only be applied in exceptional circumstances .","CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .","CARDINAL NORP The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .","CARDINAL NORP The application of the measures in each case shall be approved by the competent authority for a specified period of time .","CARDINAL NORP Any decision to extend the approved period of time shall be subject to a new approval by the competent authority .","CARDINAL LOC measures shall be applied to individuals and not to groups of prisoners .","CARDINAL.CARDINAL Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule DATE .","...","CARDINAL ORG , 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 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 .","... \u201d","Extracts from the report by Mr PERSON , Commissioner for Human Rights of ORG , on the effective respect for human rights in GPE following his visit from DATE ( published on DATE )","\u201c CARDINAL . ... At the same time , another administrative procedure , which comes fully under the responsibility of the prison administration , is totally lacking in transparency and calls for rapid action on the part of the legislature . This is the procedure for placing prisoners in solitary confinement .","When CARDINAL visits prisons , and more specifically the disciplinary blocks , one can usually see the solitary confinement blocks close by . Every prison has them . Under the law , any prisoner may be placed in solitary confinement either at his \/ her own request or as a precautionary or security measure . In some cases , this regime is used to remove prisoners who are troublesome , under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence .","According to the legislation currently in force , solitary confinement is not a disciplinary measure . Prisoners in solitary confinement must be subject to the ordinary prison regime . However , they must not have contact with other prisoners , except by express decision of the prison director , to take part in CARDINAL - off activities with other solitary confinement prisoners . The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way . In a few establishments , solitary confinement prisoners may engage in a gainful occupation by doing work in their cells . Usually , however , they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside . All solitary confinement prisoners may , however , receive visits and exchange correspondence in the normal way .","There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous \u2018 because of [ their ] involvement in organised crime or in a terrorist movement or [ their ] legal and criminal background\u2019 . It is for the prison director to determine which solitary confinement prisoners fall within this category . They are subject to particular security measures . Some are regularly transferred from CARDINAL prison to another , DATE . They remain constantly in solitary confinement and never mix with other prisoners .","Solitary confinement is usually ordered by the prison director . It may also be ordered by an investigating judge in the course of an investigation . Here I should like to dwell on the administrative procedure for which the prison director is responsible , because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement .","It emerged from most of my discussions with prisoners , lawyers , representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director . There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it , particularly by ensuring that they are given a hearing and the assistance of a lawyer .","In principle , there is general legislation which should govern this situation . This is LAW on the rights of citizens in their dealings with the public administration . Under this provision , representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice , specifying the reasons for the procedure . The person in question must have the opportunity to submit written observations or , if he \/ she so wishes , oral observations and has the right to be assisted by a lawyer or a representative ( approved or not ) . He \/ she may also have access to his \/ her file .","Clearly , the decision to place a prisoner in solitary confinement would normally be covered by this . However , we were told that this legislation has remained inoperative where solitary confinement is concerned . At present , therefore , the prison director retains sole discretion where solitary confinement is concerned .","According to what we heard in the course of our discussions , at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement . They usually only have TIME in which to prepare their observations before being given a hearing , without any legal assistance , by the prison director . I believe that , as things stand , this procedure must be described as being contrary to the recommendations of ORG ( ORG ) . Furthermore , the purely administrative and non - adversarial nature of this procedure greatly increase the risk of abuses of ORG rights . I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with NORP standards .","Furthermore , it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period , despite its frequently harmful effects on the mental state of the persons subjected to it . The initial period of solitary confinement ordered by the prison director may not exceed DATE . It may be extended beyond that period only after a report to ORG and following a decision by the regional director of prisons . In exceptional cases , solitary confinement may be extended beyond DATE following an initial decision by the Minister for ORG . In such cases , the prison director compiles a file including , among other things , the opinion of the prison doctor and of ORG . The minister is responsible for subsequent extensions , for DATE at a time , in accordance with the same procedure .","As may be seen , this procedure is entirely administrative . At present , there is no judicial involvement whatsoever . Yet it is a particularly serious measure , because , although it is not recognised as punishment , the solitary confinement regime imposes significant material restrictions on prisoners\u2019 rights , not to mention its psychological impact . During the visit , I had the opportunity to talk with persons placed in solitary confinement . Some complained about the harshness of their living conditions . According to them , being unable to communicate with anyone for long periods , sometimes well in excess of DATE , is hard to bear . Prisoners placed in solitary confinement have no effective administrative remedy at their disposal , and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment . In the course of the visit I met people who had been in total solitary confinement for DATE .","It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners . In view of the fact that CARDINAL of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners , it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment , which should clearly be the case for those in solitary confinement . For example , to allow them to use the library or a sports hall , care must be taken to ensure that no one else enters these LOC at the same time . As we know , owing to prison overcrowding , it is already quite difficult to ensure access for ordinary prisoners to these services . Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled . The same applies to the possibility of engaging in a gainful occupation . In theory , prisoners in solitary confinement are entitled to that , but in practice they may only do so inside their own cell , which is highly problematical in view of the scarcity of work opportunities in general .","Lastly , the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block . We visited CARDINAL such area at ORG short - stay prison . It is located on the roof of CARDINAL of the prison buildings , closed in by concrete walls on all sides and covered by wire netting . It is so small that it is more a room in the open air than anything else .","I should like to stress that we are talking here about people who are not subject to a disciplinary measure . Furthermore , the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal . I therefore call on the NORP authorities to take rapid action to bring solitary confinement into line with NORP standards , in particular those upheld by the ORG . I think there is a need for legislative provisions or regulations to govern the solitary - confinement procedure . The adversarial system already introduced for disciplinary punishments should apply to the solitary - confinement procedure . Lastly , I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure , for example the judge responsible for sentence enforcement .","Furthermore , without waiting for legislative reform , the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities , particularly as regards work , culture and sports . Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole , and not for prisoners being held in disciplinary cells . Excluding prisoners from these activities amounts to a disguised punishment . Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited .","... \u201d"],"violated_articles":["13"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91650","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2009,"docname":"PANCHENKO v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant bought a flat belonging to a certain PERSON For the seller \u2019s part , the contract was signed by a certain PERSON acting as ORG agent .","On DATE I. instituted proceedings in ORG of Kyiv ( the \u201c PERSON court \u201d ) against the applicant seeking invalidation of the above contract of sale , alleging that it had been concluded without his knowledge and against his will . The applicant , in his turn , lodged a counter - claim for eviction of NORP from the flat .","In a judgment of DATE the court found for I. On DATE ORG ( the \u201c GPE court \u201d ) upheld that judgment .","On DATE the Deputy President of ORG , following the applicant \u2019s request , lodged a protest with the ORG of the GPE court , seeking initiation of supervisory review proceedings in the case . On DATE the ORG allowed the protest , quashed the decisions of DATE and DATE , and remitted the case for fresh consideration .","On DATE the GPE court found for PERSON By a ruling of CARDINAL DATE it rejected the applicant \u2019s objections as to the accuracy of the TIME of the court hearings .","On DATE the Deputy Prosecutor of GPE , following the applicant \u2019s request , lodged a protest with the ORG of the GPE court , seeking initiation of supervisory review proceedings in the case . It remains unknown whether the ORG considered the merits of the protest .","On DATE the GPE court quashed the ruling of CARDINAL DATE in the light of unspecified newly discovered circumstances , and accepted the applicant \u2019s objections to the TIME of the court hearings , which had previously been rejected . It also quashed the judgment of DATE .","On DATE the GPE court granted the applicant \u2019s counterclaim and ordered ORG eviction from the flat .","On DATE the court adopted a supplementary decision by which it rejected the applicant \u2019s claim seeking to invalidate ORG \u2019s ownership certificate received in DATE .","On DATE , the court referred the applicant \u2019s criminal complaint against ORG to the prosecution .","On DATE the GPE court upheld the judgment of CARDINAL October CARDINAL , but quashed the ruling of CARDINAL DATE and partially amended the supplementary decision adopted on DATE .","On DATE I. was evicted from the disputed flat .","On DATE the Chairman of the NORP court lodged a supervisory review protest with the same court , seeking re - examination of the case . He submitted , inter alia , that the courts had failed to give due regard to ORG \u2019s references to the ongoing criminal investigations into the matter .","On DATE the applicant sold the flat to a certain PERSON","On DATE the Presidium of the GPE court allowed the above supervisory review protest and quashed the decisions of CARDINAL DATE and DATE , remitting the case to the GPE court for further consideration .","On DATE a CARDINAL - judge panel of ORG rejected the applicant \u2019s appeal in cassation against the above ruling of the ORG of the GPE court .","On DATE the applicant unsuccessfully requested ORG ( \u201c ORG \u201d ) , which was examining the case in the first instance , to suspend the proceedings pending the outcome of the criminal investigation .","In a judgment of DATE ORG decided in the applicant \u2019s favour .","On DATE ORG upheld the judgment .","The relevant domestic law is stated in the ORG \u2019s partial decision in the present case adopted on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-119975","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2013,"docname":"CASE OF NATALIYA MIKHAYLENKO v. UKRAINE","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award","judges":"Ale\u0161 Pejchal;Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens","text":["The applicant was born in DATE and lives in PERSON .","The applicant was born with congenital facial injury and was diagnosed with a \u201c midline cranial cleft \u201d . DATE she repeatedly underwent surgery in a clinic in GPE , following which her cranial disorders were mostly cured . However , owing to the extensive surgery , the applicant developed a mental illness . Since then she has needed regular supervision in GPE clinic .","NORP In DATE the applicant \u2019s father applied to GPE of GPE ( \u201c the ORG \u201d ) , seeking to have her deprived of legal capacity on the ground that she suffered from serious mental illness .","Following a request by ORG , on DATE a forensic psychiatric expert issued an opinion stating that the applicant suffered from a chronic mental illness , namely paranoid schizophrenia , which prevented her from comprehending and controlling her actions .","On DATE the ORG deprived the applicant of her legal capacity . The decision was not appealed against and became final .","On DATE the applicant \u2019s sister was assigned as the applicant \u2019s guardian ( \u043e\u043f\u0456\u043a\u0443\u043d ) .","Gradually , the applicant \u2019s mental health improved , so that on DATE she took up a position at a local factory .","NORP In DATE the applicant \u2019s guardian applied to ORG for restoration of the applicant \u2019s legal capacity . However , on DATE the application was dismissed without being considered on the merits owing to the guardian \u2019s repeated failure to appear in court .","On DATE the applicant applied on her own to ORG , seeking restoration of her legal capacity . She specified that LAW , which did not provide for the right for an incapacitated person to submit such an application , was not compatible with international legal standards and was discriminatory .","On DATE ORG returned the application to the applicant without considering it on the merits , noting that , by virtue of LAW and LAW , the applicant was not entitled to submit such an application .","On DATE the court of appeal dismissed the applicant \u2019s appeal against the decision of CARDINAL DATE noting that LAW did not provide the applicant with the right to lodge an application for restoration of her legal capacity . ORG had therefore lawfully returned the application without considering it on the merits , as required by LAW . On DATE the court of cassation dismissed as unfounded the applicant \u2019s appeal on points of law .","Article CARDINAL of the Code provides that a guardian is obliged to take measures for the protection of the civil rights and interests of the person who is under his or her guardianship .","Article CARDINAL \u00a7 CARDINAL of the LAW provides that a court can not accept a claim for consideration on the merits if it has been submitted by a person deprived of legal capacity .","Article CARDINAL \u00a7 CARDINAL of the LAW provides that a court decision declaring a physical person entirely incapable may be quashed and the legal capacity of that person may be restored by another court decision provided that the person has been cured or his or her mental state has significantly improved . Such a decision is to be taken upon an application submitted by the guardian or the guardianship authority ( \u043e\u0440\u0433\u0430\u043d \u043e\u043f\u0456\u043a\u0438 \u0442\u0430 \u043f\u0456\u043a\u043b\u0443\u0432\u0430\u043d\u043d\u044f ) and must be supported by relevant conclusions by a forensic psychiatric expert .","This Order requires the guardianship authorities , among other things , to supervise the activities of guardians and to take measures for the protection of the rights of persons who have been placed under guardianship ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98036","languageisocode":"ENG","respondent":"FRA","branch":"GRANDCHAMBER","date":2010,"docname":"CASE OF BROSSET-TRIBOULET AND OTHERS v. FRANCE","importance":2,"conclusion":"No violation of P1-1","judges":"Anatoly Kovler;Antonella Mularoni;David Th\u00f3r Bj\u00f6rgvinsson;Elisabet Fura;Fran\u00e7oise Tulkens;George Nicolaou;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicants were born in DATE and DATE respectively and live in GPE and GPE respectively .","On DATE purchased GPE in LOC from NORP , by contract signed before a notary .","By a decision of DATE , the Prefect of GPE authorised A. to build a dyke on a parcel of maritime public property situated on land belonging to the municipality of GPE for the purposes of installing a QUANTITY by QUANTITY approach ramp on it from which he could reach LOC , in particular , by boat .","By a decision of CARDINAL DATE , the ORG authorised A. to enlarge the dyke . The relevant parts of the decision read as follows :","\u201c ... From the point of view of conformity with the requirements of ORG , the dyke \u2013 once enlarged as requested DATE can not interfere with navigation in any way , on condition that it is levelled above the high and spring tide water marks , or with maritime coastal traffic on condition that it is accessible to the public at all times .","Regarding the fee to be charged ... the permittee shall pay an DATE fee of MONEY . ...","...","In the event that this authorisation is revoked , the permittee must , if requested , restore the site to its original state . Should he fail to fulfil this obligation , the authorities shall do so of their own motion and at his expense . Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the ORG 's request ... \u201d","On DATE a deed of sale concluded before PERSON , a notary , was published in ORG . By that deed , PERSON transferred ownership of ORG to Mr S.","The registration of this deed by ORG , in so far as it relates to the dyke in particular , reads as follows :","\u201c ... Entry into possession \u2013 The purchaser shall acquire ownership of LOC hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession thereof from DATE . ...","Mr [ A. ] declares that by a decision of the Prefect of GPE dated DATE CARDINAL and by another decision dated DATE August nineteen hundred and eleven , he acquired at the place known as Pen - er - men a stretch of land measuring CARDINAL square decimetres , registered in the land register of the municipality of GPE under section number CARDINAL for the purpose of building a dyke with a steel ramp measuring QUANTITY . This concession was granted to him on the express condition that the dyke be accessible to the public and in consideration of an DATE fee of MONEY and MONEY subject to review DATE . Accordingly , Mr [ A. ] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereon and declares that there is no other positive or negative easement ... \u201d","By a decision of CARDINAL DATE the ORG granted PERSON 's widow , the applicants ' mother 's aunt , authorisation to occupy the dyke for DATE , specifying that the \u201c dyke shall have a total surface area of QUANTITY . m , but that the condition of accessibility to the public shall reduce the taxable surface area to CARDINAL sq . m ... a strip of land running the entire length of the dyke shall be reserved ... as a public right of way \u201d .","The applicants ' mother acquired from her aunt , by inter vivos gift drawn up before a notary and published in ORG on DATE , a dwelling house built on the above - mentioned dyke :","\u201c There appeared before me","PERSON , widow of PERSON , who has ... made an inter vivos gift to ...","PERSON , widow of General PERSON , her niece","of the property belonging to her in the municipality of GPE called LOC .","Description : the Isle of Irus hereby conveyed comprises the entire island and all the immovable property of which it is composed , registered in the land registry as an area of QUANTITY ...","Conditions : The gift is made on the following conditions ... The donee shall take the property in its current state without any right of action against the donor on any ground whatsoever and shall enjoy the property from DATE , which is the date of entry into possession . ... She shall pay taxes and insurance premiums against fire from DATE .","Civil status \u2013 authorisation ... The said gift was authorised by ORG on DATE . ... \u201d","By a series of decisions , issued , inter alia , on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE , the Prefect of ORG authorised occupation of the dyke in question in consideration of payment of a fee . The decision of DATE refers to renewal of the decision of DATE authorising occupation of a dyke ; those of DATE and DATE refer to the dyke and house . The prefect 's decision of DATE did not authorise occupation of the public property beyond CARDINAL DATE . The decisions stated that \u201c the dyke can not interfere with navigation in any way , on condition that it is levelled above the high and DATE tide water marks , or with maritime coastal traffic on condition that it is accessible to the public at all times \u201d . The authorisation forms specified that , in accordance with LAW , \u201c the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary , on any ground whatsoever , without the permittee thereby acquiring a right to claim any compensation or damages in that regard . The permittee must , if required , restore the site to its original state by demolishing the constructions built on the public property , including those existing on the date on which the decision was signed . Should he fail to comply with that obligation , the authorities shall do so of their own motion and at his expense \u201d .","In the meantime , in DATE , ORG from LOC had written to the director of ORG in GPE in the following terms :","\u201c You have submitted to me for observations and opinion a request for renewal of temporary occupation of maritime public property made by [ the applicants ' mother ] . This request concerns a dyke of a surface area of QUANTITY . m , reduced to a taxable surface area of CARDINAL sq . m , on which a dwelling house has been built . The DATE fee proposed by ORG is MONEY . The case gives rise to the following observations : Article R QUANTITY of the Code of ORG provides that any fee payable to ORG must take into account the advantages of any kind procured to the concessionaire . In the aforementioned case , there is no doubt that the concession of the dyke in question procures a not inconsiderable advantage to the applicant : in particular , it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question ... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of PERCENT of the value of the land conceded . ... \u201d","On DATE the applicants ' mother applied to the Prefect of Morbihan for renewal of the occupancy agreement .","In a letter of DATE , the ORG reminded her that the authorisation to occupy the house granted in DATE had expired on DATE . He informed her that the entry into force of Law no . CARDINAL of CARDINAL DATE on ORG ( hereafter \u201c LAW \u201d ) , and particularly section CARDINAL , prevented him from renewing the said authorisation on the former terms because the use of public property had to take account of the designated purpose of the areas concerned , which ruled out any private use , including dwelling houses . However , having regard to the long period of occupation and the applicants ' and their mother 's sentimental attachment to the house in question , the ORG said that he was willing to consider , exceptionally , granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house , any work thereon other than maintenance , and reserving an option to the ORG , on expiry of the authorisation , to have the property restored to its original state or to reuse the buildings . He concluded by asking her to let him know quickly whether these conditions met with her approval so that \u201c an illegal situation that had lasted DATE could be regularised \u201d .","The applicants ' mother refused the offer . By way of counterproposal , she sought a permit to build a dyke that would be valid as a transfer of ownership under LAW of LAW ( see paragraph CARDINAL below ) .","On DATE the ORG rejected the applicants ' mother 's request but maintained his initial offer of an occupancy agreement subject to conditions :","\u201c You have asked me to consider the possibility of having the dyke built on maritime public property that you occupy at Pen - Er - Men reclassified as private property , apparently with a view to acquiring the dyke and the property built on it ...","I regret to inform you that the classic method of conceding property whereby the concessionnee of the property acquired full title , under LAW of LAW , to land that had been drained was abandoned by ministerial circular DATE , on grounds of lack of proven general interest . Your request goes against this policy and I repeat the conditions stipulated in my letter of DATE with a view to regularising your situation .","Regularisation in this way could be done on the terms set out in the draft agreement attached . I should point out that the property fee will be adjusted upwards in order to take account of the particular nature of the occupancy of the property . \u201d","On DATE the applicants ' mother applied to ORG for the ORG 's decision of DATE rejecting her request for a permit to build a dyke to be set aside .","On DATE the ORG informed the applicants ' mother that he was considering drawing up an official report recording the administrative offence of unlawful interference with the highway with a view to formally establishing the unlawful occupancy of public property . That official report was drawn up on DATE and served on the applicants ' mother on DATE . On DATE , on the basis of the finding of illegal occupancy of public property and in accordance with LAW of LAW ( see paragraph CARDINAL below ) , the ORG lodged an application with ORG for an order against the applicants ' mother to pay a fine and restore the property to its original state , that is , prior to construction of the house .","In CARDINAL separate judgments delivered on DATE , ORG ruled on the application lodged by the applicants ' mother on CARDINAL DATE ( case no . DATE ) and the application lodged by ORG DATE ( case no . CARDINAL ) .","NORP The court ruled as follows in respect of the applicants ' mother 's application for the ORG 's decision rejecting her request for a permit to build a dyke to be set aside :","\u201c In accordance with LAW of LAW , \u201c the ORG may concede , on conditions it shall determine ... the right to build a dyke \u201d . Whilst section CARDINAL of the aforementioned LAW DATE has reduced the scope of application of that Article , it does nonetheless specify that \u201c land draining carried out prior to the present Act shall continue to be governed by the previous legislation \u201d . Accordingly , the only provisions applicable to the present case are LAW of the aforementioned LAW and ORG of DATE , which provides that ... \u201c subject to any contrary provisions of deeds of concession , land artificially removed from the action of the tide shall be incorporated into the category of maritime public property \u201d . In rejecting the request on the basis of the principles and guidelines laid down in the inter - ministerial circular of CARDINAL DATE setting out the policy to be followed for the use of maritime public property , the Prefect \u2013 when examining the applicant 's particular situation involving an application for a concession \u2013 did not err as to the scope of the circular in question , which neither repeals nor amends the above - mentioned legislative provisions but is limited to applying them .","The aforementioned circular , which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use , to the exclusion of private dwellings , was issued in respect of an area in which the relevant authorities have discretionary power . In referring to the principles laid down in the circular , the ORG does not appear to have interpreted the legislative provisions inaccurately ; nor did he fail to consider the specificity of the applicant 's proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above . \u201d","In case no . DATE ORG granted the ORG 's application of DATE , on the following grounds :","\u201c ... The rules governing public property","\u201c ... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property . As can be seen from the judgment delivered by the court DATE in case no . CARDINAL , the land on which PERSON dwelling house was built is indeed public property .","The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty . In the present case the dyke and the house are not publicly owned property , given the exclusively private use made of them and the fact that they do not belong to a public authority . Accordingly , as it is not seriously disputed that the property in question has been appropriated for private use , it is not necessary to adjourn the application . ...","Whether there has been unlawful interference with the highway","... Whilst PERSON has full title to the dwelling house occupied by her and maintains that she is therefore not the unlawful occupant of public property , the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession . The investigation into the facts and , in particular , the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property . Accordingly , the ORG is justified in requesting an order against PERSON to pay a fine and restore the seashore to its original state prior to the construction of the house ... This must be done within DATE of service of this judgment ... . On the expiry of that period , PERSON shall pay a fine of MONEY per day 's delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender . \u201d","On DATE the CARDINAL applicants , acting in their capacity as their mother 's heirs after her death , lodged an appeal against the judgment delivered in case no . DATE . On DATE they appealed against the judgment delivered in case no . CARDINAL .","By a judgment of DATE , ORG decided to join the CARDINAL sets of proceedings on the ground that they were connected and to dismiss the applicants ' appeals .","With regard to the application relating to the offence of unlawful interference with the highway , the court noted first of all that PERSON had died during the proceedings and decided that the prosecution was therefore now extinguished . In respect of the ORG property proceedings , ORG gave the following reasons for its decision :","\u201c ... Firstly , it is not disputed that the parcel of land on which the dyke on which the house was built ... was entirely covered by water , independently of any exceptional meteorological circumstances , prior to the draining works undertaken in order to build the dyke . It has not been established , or even alleged by the applicants moreover , that the undrained portion of this land had ever been removed from the action of the tide . The investigation shows , moreover , that the dyke is the result of land draining carried out prior to the entry into force of LAW of DATE and that , notwithstanding the various authorisations of temporary occupancy granted by the authorities , as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property . In accordance with the principles of inalienability and imprescriptibility of public property , the submissions by PERSON and Ms Brosset - Pospisil to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after the expiry of the last authorisation to occupy it do not alter the fact that the land falls within the category of maritime public property .","Secondly , as has been said , the last decision authorising temporary occupancy of the maritime public property ... expired on DATE . In the absence , since that date , of a lawful title of occupancy , the ORG is justified in requesting an order against the occupants to restore the site DATE if they have not already done so \u2013 to its original state prior to construction of the house on maritime public property . In disputing that obligation , the applicants can not properly rely on DATE of occupancy of the LOC or on the fact that the authorities have tolerated the continuation of that occupancy since DATE and proposed draft occupancy agreements to Ms Brosset in order to regularise the situation , which , moreover , she has not taken up . ...","Fifthly , [ the obligation to restore the site to its original state ] does not constitute a measure prohibited by the requirement of LAW No . CARDINAL that no one shall be deprived of his possessions except in the public interest . \u201d","Regarding the refusal to grant a concession to build a dyke , ORG held as follows :","\u201c ... Secondly , as section CARDINAL of the above - mentioned LAW DATE provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation , the provisions codified under LAW of LAW according to which \u201c the ORG may concede , on conditions it shall determine ... the right to build a dyke ... \u201d are applicable .","The Prefect of GPE based his decision not to grant PERSON the requested concession to build a dyke on the guidelines set out in the circular of DATE issued by the Minister for ORG and the Minister for Regional Development on the use of public property other than commercial or fishing ports . He did not discern any general - interest ground in favour of granting the applicant 's request .","By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto , the ministers signatory to the circular of DATE did not adopt any legal rules amending or supplementing the above - mentioned provisions of LAW of LAW but confined themselves to applying them . Accordingly , as stated above , the plot of land in question is ORG - owned public property . There is no evidence in the case that the ORG , before reaching his decision , either failed to examine the particular circumstances of PERSON request or made a manifest error of assessment in concluding that there was no special feature or general - interest consideration in the case justifying an exemption from the above - mentioned rules \u201d .","On DATE the applicants lodged an appeal on points of law against the judgment of DATE . They submitted that in the absence of proof , which logically they could not have as they had acquired by gift a house already built on a previously constructed embankment , they had shown that the only legal means of building a dwelling house on a parcel of land supposedly falling within the category of public property was to obtain authorisation of temporary occupancy for private use of that land that did not expressly exclude the possibility of such an edifice being built on it . They concluded from this that the construction of a house , of which the authorities were aware and which they had accepted , had resulted in full title to the house passing to the occupants of the land . If this were not the case , it was for the ORG to provide proof that the draining works undertaken at DATE had been illegal . The applicants also submitted that the penalty was disproportionate and that , in the absence of justification on grounds of the general interest , compensation should be paid for the damage wrongly caused .","The Government Commissioner pointed out , in the same submissions as those made in a similar case , that the value in DATE 's terms of the purchase price of the house was QUANTITY ( ORG ) . He continued as follows :","\u201c ... The appellants have not acquired any property right over their houses ; nor have they acquired rights in rem over public property as a result of the successive transfers . Given the precarious situation of the buildings , the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ... . Lastly , and despite the fact that we are not especially enthusiastic about the outcome of this case , we have no alternative but to dismiss the appellants ' pleadings . ... They probably committed a tactical error in refusing the ORG 's reiterated offer . Even if they were not exactly delighted by the prospect , it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense . All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution .","There may be a case for suing the ORG in tort for allowing occupants of public property to nurture for DATE the hope that they would not be ruthlessly compelled to demolish their property . It should be pointed out that the prospects of success of such an action are fairly slim , however , given the legitimate protection enjoyed by public property . In any event , it is clear that if the public authority were to be found liable , the offenders would bear a considerable portion of liability too . \u201d","By a judgment delivered on DATE the ORG d'Etat dismissed an appeal lodged by the applicants . It held that they could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by LAW .","On DATE the director of ORG for the Morbihan d\u00e9partement wrote to the applicants in the following terms :","\u201c I have received some information from ORG . It appears first of all that your house was not specifically listed by ORG when they drew up an inventory for the LOC in DATE . However , ORG is well documented , as can be seen from a photograph available at ORG , in which your house appears very clearly . Furthermore , ORG has told me orally that if an inventory of the Vannes - Ouest district were to be carried out DATE , your house , and others in the same situation , would definitely be listed .","In any event , ORG could usefully make submissions on your behalf to ORG for the d\u00e9partement , among others , with a view to protecting the region 's cultural heritage if a further threat of demolition were to be made .","As regards , lastly , the possible classification or registration of your house in the supplementary list of historical monuments , you should not count on this , firstly because the ORG does not consider you as owner and secondly because it is inundated with requests , especially in the GPE . For the time being , given that ORG appears kindly disposed to your problem , I am not particularly worried . \u201d","In DATE the housing tax on the house came to ORG CARDINAL and the land tax to ORG CARDINAL . The applicants produced a valuation of their house prepared by an estate agent in DATE : \u201c a dwelling house made of stone built in DATE ... Having regard to the geographical situation of the property , the condition of the building , the surface area , its location on maritime public property and the local property market , and subject to the owners ' ability to produce a concession agreement in respect of maritime public property , this property is worth CARDINAL \u201d .","The idea that the foreshore is \u201c common property \u201d , that is , can not be appropriated for private use and is managed by the public authorities , dates back to NORP times , when even then a permit was necessary in order to build on the seashore . PERSON 's Ordinance of the NORP of DATE codified the principle and up until recently was still the legal basis for the ORG 's management of maritime public property . In addition to defining what constituted the \u201c seashore and foreshore \u201d , it laid down the applicable rules : \u201c No one shall build on the foreshore , set stakes in the ground or erect any construction that may interfere with navigation , on pain of demolition of the constructions , confiscation of the materials and discretionary fines \u201d . At the time of the ORG , the idea developed that maritime public property was governed by the Government in the interest of the nation , and not merely as part of the heritage that used to belong to the ORG and now belongs to the ORG . The management of maritime public property is still largely guided by this principle DATE . Over and above the idea of ORG ownership of such property , the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner 's \u201c civil \u201d rights . The prefect has a major role in the protection of maritime public property . He is the authority who , generally , governs the use of the property at local level , decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders ( source : www.mer.gouv.fr , consulted on DATE ) .","ORG 's Ordinance of the NORP was definitively repealed in DATE . Since DATE LAW owned by ORG ( Code general de la propri\u00e9t\u00e9 des personnes publiques \u2013 \u201c the ORG \u201d ) has replaced LAW ( dating from DATE ) . It restructures the law governing ORG - owned land and public bodies and combines the rules governing maritime public property into a whole , including provisions relating to the environment in particular .","Maritime public property , determined on the basis of natural phenomena , lies between the highest point of the shore , that is , up to the high tide mark under normal meteorological conditions ( ORG , PERSON , DATE ) and the boundary of the territorial waters , seaward . Under PERSON DATE of the ORG , \u201c State natural maritime public property shall comprise :","The seabed and marine substrata between the external boundary of the territorial waters and , on land , the foreshore .","The foreshore comprises the whole area covered ( and uncovered ) by the sea , up to the high tide mark under normal meteorological conditions ;","The beds and sub - strata of salt pans communicating directly , naturally and permanently with the sea ;","Land naturally reclaimed from the sea :","a ) which was part of the ORG 's private property at DATE , subject to third - party rights ;","b ) DATE which has been constituted since DATE .","...","Land reserved for public - interest maritime , seaside or tourist needs which has been purchased by the ORG .","' Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership ' . \u201d","The principle of inalienability of public land , which was established in the case - law and then incorporated into the Code of State Property ( Article L. CARDINAL ) and the ORG ( Article PERSON ) , is inextricably linked to the notion of public land . The basis of this principle is the designation of land for public use . As long as it remains thus designated , and no express decision has been taken reclassifying particular public land as private property , no transfer of land can be authorised . It is a means of preventing public land from being acquired by prescription or adverse possession under private law , hence the principle of imprescriptibility that is very often associated with the principle of inalienability . Accordingly , in its PERSON judgment , on the subject of plots of land situated close to the seashore in LOC the ORG d'Etat found that \u201c whilst the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ... , neither the founders of the soci\u00e9t\u00e9 du domaine des pr\u00e9s sal\u00e9s nor the company itself have been able to acquire any property right over the land , which , being part of public land , was inalienable and imprescriptible \u201d .","ORG has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property ( ORG , no . PERCENT of DATE , ORG ) . It has not , however , recognised that the principle of inalienability has any constitutional status ( ORG , DATE . no . CARDINAL - CARDINAL of DATE , Rights in rem over public property ) . The ORG d'Etat has recently reiterated that \u201c where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus , it shall remain public land unless a decision is given expressly reclassifying it as private property \u201d . Accordingly , it has held that the question whether or not short - stay factories fell into the category of public property was not affected by the fact \u201c that these short - stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private - law contracts \u201d ( CE DATE , PERSON ) .","The effect of the principle of inalienability is that any transfer of public land that has not been \u201c reclassified \u201d is null and void , so third - party purchasers have a duty to return the land even if they have purchased it in good faith . Moreover , the fact that public land is inalienable means \u2013 in theory \u2013 that no rights in rem can be established over it . However , the legislature has departed from this principle by passing CARDINAL Acts , CARDINAL of CARDINAL DATE which creates long administrative leases , and the other of CARDINAL DATE on the constitution of rights in rem over public land , thus making it possible to grant private rights in rem to occupants of maritime public property . LAW of DATE concerns only public land belonging to local and regional authorities or groups thereof . LAW DATE relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity ( Article L. CARDINAL - CARDINAL of the Code of ORG and Article L. CARDINAL - CARDINAL of the ORG ) . In its above - mentioned decision of DATE , ORG held that granting rights in rem in this way was compatible with the LAW as public services were maintained and public property protected under LAW . However , it declared the provision allowing the renewal of authorisation beyond DATE unconstitutional on the ground that it could potentially render ineffective the public authority 's right to the automatic return , free of charge , of any constructions and therefore undermine the \u201c protection due to public property \u201d .","The last consequence of the principle of inalienability is that property belonging to public authorities can not be seized ( Article L. CARDINAL - CARDINAL of the ORG ) . This consequence has been attenuated by a decision of the PERSON d'Etat in a case which subsequently came before ORG NORP fermi\u00e8re ORG v. GPE , no . CARDINAL , DATE ) .","Apart from public easements intended to protect public property from the encroachment of private properties , such as a QUANTITY wide right of way along the coast over properties adjoining maritime public property , created by an LAW DATE reforming town and country planning , the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use . Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy . An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state . The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake ( Articles L. DATE and PERSON of the ORG ) .","According to the ORG d'Etat , conservation agencies have a duty to prosecute offenders ( ORG \u201c des amis des chemins de ronde \u201d , DATE ) . Regarding a plot of land incorporated into maritime public property at ORG beach ( southern Corsica ) , the PERSON d'Etat decided that \u201c the fact that ORG produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation , as distinct from the legislation governing maritime public property , does not mean that the offence of unlawful interference with the highway has not been made out and , in any event , can not preclude prosecution by the Prefect ... \u201d ( CE , no . CARDINAL , DATE ) . With regard to repairing damage caused to public property , the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender , including the right not to assume personal responsibility for restoring the site to its original state ( CE , GPE , DATE ) .","The use of maritime public property may be collective or private . Collective use which allows all citizens to benefit from public property ( navigation on watercourses , beaches ) is freely exercisable , equally available to all and free of charge . However , the principle that use is free of charge has not been expressly incorporated into the ORG because it is subject to numerous exceptions .","Private occupancy must be compatible or in conformity with the designated use of the public property . Unlike collective use , it is subject to authorisation , issued personally , and a charge and is of a precarious nature .","Article L. CARDINAL of the Code of State Property ( Article L. CARDINAL - CARDINAL of the ORG ) provided that","\u201c Subject to authorisation being issued by the competent authority , no one may occupy any national public property or make use thereof over and above the right of use vested in everyone .","ORG shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants , recovering compensation for charges in respect of which ORG has been defrauded , without prejudice to the institution of proceedings for unlawful interference with the highway . \u201d [ Article A CARDINAL specified that authorisation was revocable without compensation ] .","According to the ORG d'Etat , \u201c whilst the authorities may , as part of their management powers , authorise DATE provisionally and on the conditions provided for by the rules in force \u2013 private occupancy of the said land , that authorisation can not legally be granted unless , having regard to the requirements of the general interest , it is compatible with the designated use of the land that the public are normally entitled to exercise , and with the obligation incumbent on the authorities to conserve public land \u201d ( CE , Commune de SaintBr\u00e9vinlesPins , CARDINAL DATE ) .","The precariousness of these authorisations derives from the principle of inalienability , according to which the protection DATE and accordingly the disposal \u2013 of public land is vested in the authorities . According to the case - law , \u201c any authorisation to occupy public land is precarious and revocable . Consequently , the fact \u2013 assuming it is made out DATE that , prior to adoption of the decision being challenged , PERSON had been granted authorisation to occupy the part of common public property ... does not affect the lawfulness of the mayor 's decision requesting him to demolish the buildings he had erected and restore the public land to its original state ... \u201d ( CE , PERSON , DATE ) . It also states very clearly that those to whom authorisation has been granted have not thereby \u201c acquired rights \u201d to renewal of the authorisation ( CE , Helie , DATE ) .","The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities ( of the type referred to above in LAW of LAW ) or in contracts signed with the occupant . The latter are called concessions to occupy public land , which DATE on maritime public property \u2013 may be a beach concession or a concession to build a dyke . By means of this concession , the ORG authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide . In respect of natural maritime public property an arrangement was established in DATE , traditionally called a concession to build a dyke and by which ownership was transferred ( former LAW of LAW ) : the concessionaire was authorised to drain land , which , once removed from the action of the tide , no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the ORG . That arrangement , which was originally used to build agricultural polders , has more recently been used for property developments in the form of marinas , reclaimed from the sea . Following a reaction to what was perceived as a privatisation of the shore , a circular was issued in DATE prohibiting such arrangements \u2013 a prohibition later confirmed by LAW , which imposes a broader prohibition on any interference with the natural state of the shore . It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred . This arrangement can now apply only to past draining works and is the sole means of legalising these ( source : www.mer.gouv.fr ) .","Up until DATE maritime public property was protected by the rules governing the highways . LAW introduced new rules for the protection of natural public land ( source : www.mer.gouv.fr ) .","As early as DATE enthusiasm for seaside holidays brought about an increase in the number of tourists and thus in the number of buildings on the seashore ... . Awareness of the economic importance of the seashore and of the degree to which it is coveted made it necessary to introduce a rule of overriding legal force that would arbitrate between the many uses of coastal areas . It is in this spirit that LAW of DATE ( consolidated on CARDINAL DATE ) was unanimously passed by ORG . LAW provides that coastal areas are \u201c geographical entities which call for a specific policy of development , protection and enhancement \u201d . The general principles of that LAW consist in preserving rare and fragile areas , managing spatial planning and tourist development economically and , lastly , making the shore \u2013 like the beach DATE more widely accessible to the public and giving priority in coastal areas to marine - related activities .","It is in the planning sphere that the principles established are the best known and have given rise to the most litigation . Planning permission for further development must be granted with regard to continuation of existing constructions or new hamlets . It is forbidden to build roads on the shore and through roads can not be built closer than QUANTITY from the shore . In order to preserve natural sites the LAW imposes a \u201c no building \u201d rule within a CARDINAL-metre band DATE outside urban centres \u2013 from the shore , and restricts development in areas near the shore . Lastly , sites of outstanding interest or characteristic of the shore must be preserved and only small - scale development can be allowed .","The Act has laid down rules for managing maritime public property which include a mandatory public inquiry prior to any substantive change of use , clarifying the procedures for delimiting the foreshore , prohibiting \u2013 other than in exceptional circumstances \u2013 interference with the natural state of the seashore and establishing specific rules for collective mooring . Lastly , it has established the principles of unobstructed and free public use of the beaches and facilitated public access to the sea ( see LAW and LAW \u201c Pedestrians shall have free access to beaches ... . Beaches are fundamentally reserved for the unobstructed and free use of the public . \u201d","Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , has given rise to a reform of the rules governing the occupation of maritime public property . It provides :","\u201c Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas , as well as of the requirements of conservation of coastal sites and landscapes and biological resources . Accordingly , they shall be coordinated with , inter alia , decisions concerning neighbouring public land .","Subject to specific provisions regarding national defence and the requirements of maritime safety , any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ... \u201d","Section CARDINAL of the LAW , now Article L. CARDINAL - CARDINAL of the ORG , lays down the principle that there shall be no interference with the natural state of the seashore :","\u201c Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety , national defence , sea fishing , salt works and marine cultures , the natural state of the seashore , outside port and industrial port areas , may not be damaged , especially by dyke construction , drainage , rock filling or embankment forming , except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest .","However , land draining carried out prior to the present Act shall continue to be governed by the previous legislation . \u201d","The following is an extract from the section entitled \u201c Matching facts with the theory \u201d of a report on the conditions of application of LAW , drawn up by ORG and sent to the Minister for Infrastructure , ORG in DATE :","\u201c ... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular . ...","The right to enjoy \u201c for life \u201d but not to transfer a dwelling house built on maritime public property , as recognised in an agreement signed with the ORG , the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal , together with an agreement expressly stipulating that the right could not be inherited , illustrate the creativity shown by the authorities in this regard in GPE and the GPE . ...","All sorts of liberties are increasingly being taken in various degrees of good faith . ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation ? ... \u201d","A report entitled \u201c Assessment of LAW and measures in favour of coastal areas \u201d , prepared by ORG ( DATE ) , contains a part devoted to opening coastal areas to pedestrians which is worded as follows :","\u201c The purpose of LAW is to maintain or develop tourism in coastal areas . Sections CARDINAL to CARDINAL of the LAW , in particular , lay down the conditions in which the public may visit natural sites , the seashore and the corresponding facilities . The provision of coastal paths goes some way towards giving effect to these legislative provisions . ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the ORG ( maritime public property ) , ORG or local and regional authorities ... .","Making a pathway often requires an on - site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna , the flora or the stability of the soil . If the land is considered to be accessible without any risk to the environment , regard will have to be had to where the path is routed , particularly across private property , it being observed that the statutory route ( QUANTITY in width running along the boundary of maritime public property ) is not always the most appropriate solution . If the statutory route across private properties has been modified , a public inquiry must be carried out . ... \u201d","The ORG examined the situation in CARDINAL coastal member GPE . CARDINAL GPE , GPE , GPE and GPE ) do not recognise the existence of maritime public property exclusive of any private ownership rights . In the other GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) , maritime public property belongs either to the ORG or to other public bodies and is inalienable on that basis . In all these GPE maritime public property can nevertheless be designated for private use on the basis of fixed - term concessions . And in all these GPE illegal use exposes the offender to administrative or even criminal penalties . In particular , the illegal construction of immovable property can result in the offender being ordered to demolish the building concerned at his or her own expense and without compensation . This type of measure also exists in GPE , where the private right of ownership of land on the seashore is recognised by law but the land is subject to relatively strict easements which prohibit the construction of new buildings and guarantee public access to the sea .","In GPE , as in GPE , the owners of buildings legally built and acquired before the entry into force of the \u201c Maritime Property Act \u201d ( DATE ) in the case of the former and LAW in the case of the latter ( DATE ) , and designed for use as a dwelling , could obtain a concession of these buildings , without any obligation to pay a charge on the sole condition that they apply for the concession within DATE of the entry into force of the Act . In GPE properties built before the LAW came into force without a permit or concession as required by the previous legislation will be demolished if they can not be legalised on public - interest grounds . Any building that was authorised before the LAW came into force but is now illegal will be demolished on the expiry of the concession if it is located on land falling within the category of maritime public property . In GPE , according to the case - law of ORG ( judgment of DATE ) , which refers to the judgment in PERSON and PERSON v GPE ( no . CARDINAL , DATE ) , if the annulment of a property deed in respect of property located inside the delineation of the seashore is compatible with the domestic legislation , the interested party can apply to the courts for compensation for his or her pecuniary loss .","The following relevant texts can be cited : Recommendation No . R ( CARDINAL ) CARDINAL of ORG on a policy for the development of sustainable environment - friendly tourism in coastal areas adopted on DATE , and the appendix thereto ; and the decision of ORG taken at its PERSON meeting ( DATE ) at which ORG take note of LAW on sustainable management of coastal zones ( see LAW and LAW access to beaches and coasts ) ; and LAW and agree to transmit them to their respective Governments ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84574","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF TEODORSKI v. POLAND","importance":4,"conclusion":"No violation of Art. 5-3","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi","text":["The applicant was born in DATE and lives in GPE .","In DATE the police conducted an operation to disband several organised criminal gangs that were acting in and around GPE , stealing luxury cars with a view to selling them in the countries of the former GPE . There were CARDINAL such groups , cooperating closely with each other and closely connected with GPE 's most dangerous armed criminal groups : ORG and ORG .","The applicant was arrested on DATE on suspicion of thefts , robberies , drunk driving and membership of an organised criminal group . He was remanded in custody by the decision of ORG of DATE .","At that time ORG was conducting an investigation in respect of CARDINAL other members of the criminal gangs mentioned above . CARDINAL of them were held in custody . The investigation was complex and time - consuming , given that the criminal gangs collaborated closely with many persons who were to be questioned by the prosecutors , for example , receivers of stolen goods , persons hiding stolen cars or persons tracking cars which were to be stolen , among others .","In addition , the prosecutor opened an investigation in respect of several police officers from GPE and surrounding towns on charges of corruption and helping the criminal groups ' members to evade the law .","On DATE a bill of indictment against the applicant and CARDINAL other co - accused ( members of CARDINAL cooperating criminal gangs ) was lodged with ORG . The evidentiary material was presented in CARDINAL case files . The applicant was charged with membership of a criminal gang , carrying out multiple robberies and thefts , committed with extreme brutality . The criminal gang , of which the applicant was a member , was known for its violence and ruthlessness and for illegal trafficking in firearms .","On DATE ORG held the first hearing . The following hearings were held by ORG on : CARDINAL , DATE , DATE , DATE , QUANTITY DATE , CARDINAL , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE and DATE ; CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE . In total , CARDINAL hearings were held by ORG .","During the trial ORG examined a wide range of evidentiary material , ordered medical expert opinions on the accuseds ' mental health and expert opinions in the field of dactyloscopy , conducted inquiries in the accuseds ' respective neighbourhoods , inspections of the crime scenes and garages where the stolen cars had been hidden and assessments of the accuseds ' assets . The proceedings involved taking evidence from a considerable number of witnesses and victims and from CARDINAL key witness .","NORP The applicant 's pre - trial detention was prolonged several times by ORG . The decisions were issued , inter alia , on DATE , CARDINAL DATE , CARDINAL May , CARDINAL DATE , DATE , DATE , CARDINAL DATE and DATE . In its decisions the court underlined that there was a strong likelihood that the applicant had committed the crimes , confirmed in particular by the testimonies of a key witness and a co - accused , and considered that there was a reasonable risk that the applicant would tamper with the evidence , given that he had had close connections with the other co - accused . There was a serious threat that the applicant would go into hiding after his release from custody , as he had been living in hiding before the investigation and was arrested following the arrest warrant issued by the police . The court also made reference to the activities previously carried out and gave a precise indication of the evidence that still had to be taken . Consequently , it decided that it was indispensable to separate the applicant from the other suspects , the witnesses and the evidence which had not yet been secured . The court also relied on the serious nature of the charges against the applicant and the severity of the penalty he faced . No special circumstances dictated the lifting of the detention .","The applicant unsuccessfully appealed against the above - mentioned decisions .","From DATE to DATE and from DATE to DATE the applicant served a prison sentence imposed on him in separate proceedings .","On DATE ORG imposed a sentence on CARDINAL of the co - accused . The applicant was found guilty of the charges laid against him and sentenced to DATE imprisonment and a fine of MONEY . On DATE the court prolonged the applicant 's detention until DATE .","On DATE and DATE ORG decided on the prolongation of the applicant 's detention . The court found no grounds for quashing or changing the preventive measure and stressed that the further detention of the applicant was \u201c essential \u201d .","On DATE the case file , comprising CARDINAL volumes , was transferred to the second - instance court .","The applicant was kept in custody by virtue of decisions issued by ORG on DATE , DATE and DATE .","On DATE the appellate court quashed the judgment and remitted the case for re - examination .","The proceedings are pending before ORG .","On DATE the applicant was detained on remand by ORG on suspicion of robbery and theft . In its decision , upheld on DATE by ORG , the court stated that the suspicion was reasonable and , in view of the fear of collusion , the applicant 's detention was necessary to secure the proper conduct of the investigation . It also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant .","On DATE a bill of indictment against the applicant and other co - accused ( members of CARDINAL co - operating criminal gangs ) was lodged with ORG . The applicant was accused of acting in an organised criminal gang and committing numerous robberies .","Hearings were held by ORG on average DATE and DATE .","The decisions on prolongation of the applicant 's detention were given by ORG on DATE , DATE , DATE and DATE . The court found that in view of the progress in the proceedings and the fact that several members of the criminal gang had been arrested in the course of the proceedings , the applicant 's release from custody would hinder their effectiveness . In view of the severity of the likely penalty and the fact that the applicant had been living in hiding before the investigation , there was also a serious threat that the applicant would abscond after his release .","On DATE , DATE and DATE ORG prolonged the applicant 's detention upon ORG motion .","The applicant lodged a considerable number of unsuccessful applications for release from detention or for commutation of the preventive measure to a less severe one , on the ground of his poor state of health or other reasons .","He also challenged , likewise unsuccessfully , the decisions of CARDINAL January , DATE and DATE prolonging his detention .","On DATE ORG found the applicant guilty of most of the charges and sentenced him to DATE imprisonment . The applicant appealed .","The proceedings are pending before the second - instance court and the applicant remains detained ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101537","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2010,"docname":"HLASENSKY AND HLASENSKA v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and live in ORG . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .","On DATE the applicants lodged a constitutional appeal before ORG . The constitutional appeal was signed by the applicants and dated DATE . Attached to it was a power of attorney , dated CARDINAL DATE .","On DATE the ORG informed the applicants and the attorney that the constitutional appeal had to be written by the legal representative . They were invited to rectify the shortcoming by resubmitting the constitutional appeal , written by the attorney , within DATE . ORG noted that in case of failure on the part of the applicants , the constitutional appeal would be rejected under LAW \u00a7 CARDINAL a ) of LAW .","On DATE the applicants ' attorney sent to ORG a letter in which he stated that he had been representing the applicants from DATE of the proceedings and that , after consulting the applicants , he would not supplement the constitutional appeal in any way .","On DATE ORG rejected the constitutional appeal , holding that the applicants had failed to rectify its shortcomings in due time . It also noted that CARDINAL of the applicants had lodged several constitutional appeals in the past and had previously been invited to rectify his submissions , and hence was well aware of the formal requirements .","Pursuant to LAW ) , natural and legal persons must be represented by an attorney before ORG .","Section CARDINAL ( CARDINAL ) ( a ) provides that the Rapporteur shall , by preliminary ruling , reject the application if the applicant fails to rectify defects in the application in the time - limit set ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58022","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":1997,"docname":"CASE OF LUKANOV v. BULGARIA","importance":2,"conclusion":"Violation of Art. 5-1;Not necessary to examine Art. 18;Just satisfaction rejected;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"John Freeland","text":["ORG The applicant was a NORP citizen . Formerly a Minister , then Deputy Prime Minister and , in DATE , Prime Minister of GPE , he was a member of ORG at the time of the events giving rise to the present case . On DATE he was shot dead outside his home .","ORG On leaving GPE for GPE on DATE , the applicant was informed by the border police at FAC that an order had been made to withdraw his diplomatic passport . As the order was not shown to him , he refused to hand over his passport . Following a similar incident on DATE , the applicant lodged an appeal with ORG , which rejected the appeal on the ground that no administrative decision had been taken which could form the subject of an appeal . Subsequently , the applicant brought proceedings to obtain compensation for non - pecuniary damage sustained as a result of the unlawful order to withdraw his passport ( see paragraph CARDINAL below ) .","ORG On DATE the Prosecutor - General requested ORG to authorise the institution of criminal proceedings against the applicant on suspicion of having contravened Articles CARDINAL and CARDINAL para . CARDINAL of LAW ( see paragraphs DATE below ) . The suspicion related in particular to his participation as a Deputy Prime Minister DATE in a number of decisions granting sums , totalling MONEY ( ORG ) and CARDINAL convertible NORP leva , in assistance and loans to certain developing countries , including GPE , GPE , GPE , GPE , GPE , GPE and GPE . The request stated :","\" The decisions ... have dramatically affected the country \u2019s economic potential , its economic resources and export capacity , and have objectively speaking made it unable to repay its foreign debt . It should be emphasised that , due to decisions of this nature causing prejudice to the country and other illegal measures taken by party and government leaders during this period , our foreign debt rose from ORG in DATE to ORG CARDINAL,CARDINAL,CARDINAL,CARDINAL in DATE ...","The situation described is covered by the definition of the offence of ` taking advantage of one \u2019s position\u2019 in respect of very large amounts of money , which constitutes a particularly serious matter falling within the provisions in LAW para . CARDINAL of LAW .","The offences mentioned are ` ORG within the meaning of Article CARDINAL para . CARDINAL of the LAW . \"","ORG On DATE ORG waived the applicant \u2019s parliamentary immunity under LAW and authorised criminal proceedings against him and his arrest and detention on remand .","ORG On DATE the public prosecutor , Mr PERSON , of ORG , charged the applicant under Article CARDINAL , in conjunction with Articles CARDINAL , CARDINAL and CARDINAL , of LAW ( see paragraphs CARDINAL below ) with having misappropriated , in concert with the chairperson and the other vice - chairpersons of the then ORG , the funds allocated to certain developing countries as mentioned in paragraph CARDINAL above . In breach of his official duties , he had facilitated the misappropriation in order to obtain an advantage for a third party , thereby causing considerable economic damage . In view of the very large amounts of money involved , the case was a particularly serious one .","The prosecutor in addition ordered the applicant \u2019s detention on remand , citing as grounds the need to show to the public the danger that the offences in question represented to society , the applicant \u2019s identity and the need to secure his appearance before the trial court . The decision referred , inter alia , to ORG and CARDINAL para . CARDINAL of the Code of Criminal Procedure ( see paragraphs CARDINAL and CARDINAL below ) .","On DATE the applicant was arrested and remanded in custody at the premises of ORG in GPE .","ORG On DATE the applicant \u2019s lawyer lodged an appeal with ORG , requesting his release . She maintained that , contrary to Article CARDINAL para . CARDINAL of the Code of Criminal Procedure , the arrest warrant had failed to specify the grounds for his arrest . The fact that he risked a sentence of DATE imprisonment could not in itself justify his detention since , under paragraph CARDINAL of Article CARDINAL , it was also a condition that there should be a risk of his absconding or of his committing a further crime ( see paragraph CARDINAL below ) . In addition , the measures had been taken on the basis of the applicant \u2019s identity , notably the fact that he was a member of ORG , a consideration which was not covered by any of the grounds that were exhaustively listed in Article CARDINAL para . CARDINAL ( see paragraph CARDINAL below ) .","ORG At a court session held on DATE , at which the public prosecutor but not the applicant or his lawyer was present , ORG dismissed the appeal . Its decision included the following reasoning :","\" Under LAW para . CARDINAL of the Code of Criminal Procedure a suspect is to be detained on remand if the offence is punishable by DATE imprisonment or more or by the death penalty . Offences under Article CARDINAL para . CARDINAL , of LAW carry such sentences .","[ The above provision ] lays down CARDINAL cumulative conditions - the misappropriation must have occurred on a large scale and must have been particularly serious .","[ Whether the misappropriation has occurred ] on a particularly large scale depends on the value of the public property involved . The seriousness of the case is determined on the basis of whether the misappropriation was carried out with the complicity of others , the level of the threat to society involved in the [ measures ] and the subject matter ( Article CARDINAL para . CARDINAL , of LAW ) . The argument that the eventuality envisaged in LAW para . CARDINAL ... applies in the instant case is unfounded .","When the accusation was made the applicant was a member of ORG . By virtue of LAW he holds this status until such circumstances occur as may warrant the suspension from his functions as a member of ORG . In his capacity as member of ORG the [ applicant ] represents the people as a whole . It is precisely in this capacity that the [ risk ] mentioned in LAW para . CARDINAL ... will materialise , and the likelihood of this is greater than in the case of an appellant who is not a member of ORG .","Furthermore , the applicant has lodged a judicial appeal against the administrative measure resulting in the withdrawal of his diplomatic passport ... The fact that he has taken such a step gives good grounds for fearing that he will not refrain from committing acts of the type mentioned in LAW para . CARDINAL ...","According to LAW ... , except in cases of serious crimes and where permission has been given by ORG , its members may not be detained and no charges may be brought against them ... \u2019 . A logical and systematic interpretation of the aforesaid provision suggests that [ what is decisive for ] the measure of restraint , ` detention\u2019 , [ to be applied ] in the context of LAW is whether the act entails a great danger to society and the particular status of the person who has committed it - a member of ORG .","For this reason the legislature envisaged ... detention in [ such ] cases . The prosecutor \u2019s office has power to impose such a measure . \"","ORG On DATE the applicant was hospitalised at ORG , where he received treatment .","ORG On DATE the applicant , relying on a change in circumstances concerning his state of health , filed a request with ORG for his release .","ORG On DATE his lawyer appealed to ORG against ORG implied refusal to grant the request of CARDINAL DATE .","ORG dismissed the appeal on DATE on the grounds that the applicant had already appealed against his detention and that , under the relevant NORP law , he was not entitled to lodge a further appeal .","Subsequently , the applicant \u2019s lawyer made a request for his release to the public prosecutor .","At a meeting on DATE between the public prosecutor and the applicant and his lawyer at ORG in GPE , the lawyer invited the prosecutor to take a decision on the request for release . The applicant himself maintained that it was unreasonable to base his detention on the fact that he had complained about the withdrawal of his passport . He did not have any other passport . Nor was there any danger of his repeating the offence , as he was no longer in a position to do so .","On DATE the public prosecutor dismissed the applicant \u2019s request for release . He gave as reasons that ORG had already dealt with it and had been of the view that , notwithstanding the medical reports concerning the applicant , there were no new circumstances warranting his release . His lawyers had been informed of ORG decision of CARDINAL DATE and had been advised that no further appeal was possible .","ORG By letter of CARDINAL DATE the applicant \u2019s lawyer asked ORG to terminate the investigation . She recalled that it had commenced on DATE and , after the expiry of the statutory period of DATE , had been extended for DATE until DATE . Under Article CARDINAL para . CARDINAL of LAW , a further extension could only be justified in \" exceptional \" cases , which condition had not been satisfied in the applicant \u2019s case . Nor had ORG obtained any new evidence during DATE which had elapsed since the investigation had started .","The lawyer also contested the charges against the applicant . The decisions of ORG had been taken collectively in accordance with the LAW and the budget voted by ORG . The decisions in question had been taken simply with a view to implementing policies of the government in power at the time and it was the government , not the applicant as a Deputy Prime Minister , which had administered the relevant funds . In any event , it had not been established that the applicant had committed the offences in issue for his own benefit or for that of a third party .","ORG On DATE the applicant \u2019s lawyer lodged a request for his release with ORG , maintaining , inter alia , that the further prolongation of his detention breached Article CARDINAL para . CARDINAL of the Convention ( article CARDINAL ) and that , contrary to LAW CARDINAL ( c ) ( article QUANTITY ) , no grounds had been given for his detention . The argument that the applicant had appealed against the order to withdraw his passport was unfounded as he had only exercised his rights under NORP law . The lawyer refused to comment on the allegation that the applicant constituted a particular danger to society on account of his position as member of ORG .","ORG On DATE the Prosecutor - General informed the applicant \u2019s lawyer orally that his request of CARDINAL DATE had been dismissed in the absence of any new circumstances justifying modification of the decision to detain him on remand .","ORG In a letter of CARDINAL DATE to ORG the applicant , referring to LAW , complained about the prosecutor \u2019s failure to reply to his requests in writing . He asserted that the criminal proceedings against him had no legal basis and amounted to an overt act of political reprisal .","ORG In a letter of CARDINAL DATE to the public prosecutor , the applicant \u2019s lawyer queried the outcome of the request of CARDINAL DATE ( see paragraph CARDINAL above ) , stating that the information was important for the application filed with the Commission .","On DATE the public prosecutor replied that his decision of CARDINAL DATE had been transmitted to the applicant \u2019s lawyer on DATE and that minutes relating to these measures had been prepared in accordance with LAW .","ORG On DATE ORG reversed its decision of DATE authorising the applicant \u2019s detention on remand . On DATE the prosecutor decided to release the applicant on bail .","ORG On DATE the ORG awarded the applicant compensation for non - pecuniary damage suffered as a result of the attempts made by the border police to withdraw his passport in the absence of a lawful order to this effect . The decision was confirmed by ORG on DATE .","ORG Under LAW , public servants who misappropriate public or private funds which are in their possession in their capacity as public servants or which they have been entrusted with to keep secure or administer are liable to up to CARDINAL years\u2019 imprisonment . If a further offence has been committed in order to facilitate the misappropriation or if the offence has been committed with the complicity of others , CARDINAL years\u2019 imprisonment may be imposed ( LAW .","Where an offence under Articles CARDINAL or CARDINAL involves particularly large amounts of public funds and is serious , Article CARDINAL para . CARDINAL provides for terms of DATE imprisonment .","ORG As appears from a number of rulings by ORG ( D CARDINAL - CARDINAL-II , p. CARDINAL ; D CARDINAL - CARDINAL-I , p. CARDINAL ; D CARDINAL - CARDINAL-II , p. CARDINAL ; D CARDINAL - CARDINAL-I , bull . no . CARDINAL , p. CARDINAL ; PERSON , p. CARDINAL ; D CARDINAL - CARDINAL-II , p. CARDINAL ; and D CARDINAL - CARDINAL-Pl . , p. CARDINAL ) supplied by the applicant \u2019s lawyer in consultation with the Agent of the Government before the ORG \u2019s hearing , at the material time a condition for the offence of misappropriation under LAW was that the person concerned had disposed of the means in question as though they were his or her own , in order to obtain an advantage for himself or herself or for a third party .","In a judgment of DATE ( no . CARDINAL ) ORG declared unconstitutional an amendment by ORG to make it an express condition in Article CARDINAL that the person concerned had used the funds to his own advantage or that of a third party . In the opinion of ORG , such a limitation on the scope of the offence of misappropriation would entail too weak a protection of the right to property guaranteed by LAW of DATE . It should be decisive for the offence , not that there had been personal enrichment , but that the person had disposed of the means as though they were his own and had thereby harmed the owner \u2019s interests .","In connection with the above , ORG stated that the amendment in question had been in line with ORG interpretation of Article CARDINAL .","According to the Government , there was no example at the relevant time of a member of a government having been prosecuted under ORG CARDINAL and CARDINAL of LAW for his or her participation in collective decision - making by the government .","ORG Article CARDINAL para . CARDINAL provides :","\" If a public servant , in his administration of assets or of money in his possession or in the execution of work which he has been ordered to do , negligently causes considerable material damage , or the destruction or dispersal of the assets , to the disadvantage of the service concerned or the national economy , he will be punished by a term of imprisonment of not DATE or by forced labour in the public interest . \"","According to paragraph CARDINAL , up to CARDINAL years\u2019 imprisonment may be imposed if the offence is committed wilfully .","ORG Article CARDINAL provides :","\" ( CARDINAL ) A public servant who does not fulfil his professional obligations or who commits an abuse of power with the aim of obtaining a material advantage for himself or for a third party or of causing damage to others , and if not insignificant material damage could arise , shall be punished by a term of not more than DATE imprisonment ...","( CARDINAL ) If the act results in considerable material damage or has been committed by a person occupying a senior administrative post , the person concerned shall be liable to a term of imprisonment of DATE ...","( CARDINAL ) If such an act is particularly serious the term of imprisonment shall be CARDINAL ... \"","ORG Under LAW para . CARDINAL of the Code of Criminal Procedure , an accused may be placed under court supervision in order to ensure that he or she does not abscond or commit a new offence or to prevent collusion . The kind of measure imposed depends on the evidence against the accused , his or her state of health , family situation , profession and any other information concerning his or her character .","ORG Article CARDINAL provides , in so far as relevant :","\" ( CARDINAL ) Detention on remand shall be imposed if the charges concern crimes punishable by a term of imprisonment of DATE or more or by capital punishment .","( CARDINAL ) The measure envisaged in the previous paragraph shall not be imposed if there is no danger of the accused evading justice or committing another crime .","...","( CARDINAL ) The detained person may immediately lodge an appeal with the court against his detention . The ORG shall decide within DATE by means of a decision which is final . \""],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58071","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":1996,"docname":"CASE OF MANOUSSAKIS AND OTHERS v. GREECE","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"John Freeland;N. Valticos","text":["ORG The applicants are all FAC and live in GPE .","ORG On DATE Mr Manoussakis rented under a private agreement a room measuring QUANTITY in a building located in the NORP district of GPE ( GPE ) . The agreement specified that the room would be used \" for all kinds of meetings , weddings , etc . of FAC \" .","ORG On DATE he laid a complaint against persons unknown at GPE police station because DATE before the windows of the room had been broken by unidentified persons . On DATE he laid a further complaint concerning a similar incident that occurred on DATE .","ORG By an application of CARDINAL DATE lodged with the Minister of ORG and ORG the applicants requested an authorisation to use the room as a place of worship . On DATE they went to the chairman of ORG to ask him to certify their signatures on the application . He refused , however , on the grounds that the applicants did not reside in his district and that they had failed to show him the document bearing their signatures . Following the intervention of the prefect of GPE , the Deputy Minister of the ORG and the Speaker of ORG , the chairman withdrew his opposition and agreed to certify the signatures on a new application lodged on DATE .","ORG On DATE the ORG notified the GPE police authorities that the room was being used as an unauthorised place of worship for FAC and informed them of the applications made by the applicants to the Minister . The church authorities asked the police to carry out an inspection of the LOC , to take punitive measures against those responsible and above all to prohibit any further meetings until the Minister had granted the authorisation in question .","ORG The applicants received CARDINAL letters from ORG and ORG , dated DATE and DATE , DATE , DATE , DATE and DATE , informing them that it was not yet in a position to take a decision because it had not received all the necessary information from the other departments concerned .","ORG On DATE the GPE public prosecutor \u2019s office instituted criminal proceedings against the applicants under LAW no . CARDINAL ( anagastikos nomos ) , as amended by PERSON no . CARDINAL\/CARDINAL ( see paragraph CARDINAL below ) . In particular they were accused of having \" established and operated a place of worship for religious meetings and ceremonies of followers of another denomination and , in particular , of the GPE \u2019s PERSON denomination without authorisation from the recognised ecclesiastical authorities and the Minister of ORG and ORG , such authorisation being required for the construction and operation of a church of any faith \" .","ORG On DATE the ORG sitting at first instance and composed of a single judge ( PERSON ) acquitted the applicants on the ground that \" in the absence of any acts of proselytism , followers of any faith are free to meet even if they do not have the requisite authorisation \" .","ORG The GPE public prosecutor \u2019s office took the view that ORG had incorrectly assessed the facts and accordingly lodged an appeal against the judgment of DATE .","ORG On DATE the ORG sitting on appeal and composed of CARDINAL judges ( PERSON ) , sentenced each of the accused to CARDINAL months\u2019 imprisonment convertible into a pecuniary penalty of CARDINAL drachmas per day of detention , and fined them MONEY each . It noted as follows :","\" ... the accused had converted the room that they had rented into a place of worship , in other words a small temple intended to serve as a place of devotion for a limited circle of persons as opposed to a public building in which everyone without distinction is free to worship God . Thus they established this place on DATE and made it accessible ... to others , in particular , their fellow GPE \u2019s Witnesses from the region ( limited circle of persons ) , without the authorisation of the recognised ecclesiastical authority and of ORG . At this place they worshipped God by engaging in acts of prayer and devotion ( preaching , reading of the scriptures , praising and prayers ) and did not confine themselves to the mere holding of meetings for followers and the reading of the gospel ... \"","ORG On DATE the applicants appealed on points of law . They argued , inter alia , that the provisions of LAW no . CARDINAL , in particular the obligation to seek an authorisation to establish a place of worship , were contrary to LAW and CARDINAL of LAW and to Articles CARDINAL and CARDINAL of LAW ( article CARDINAL , LAW ) .","ORG In a judgment of CARDINAL DATE ORG dismissed their appeal on the following grounds :","\" The provisions of LAW no . CARDINAL and of the royal decree of CARDINAL May\/CARDINAL DATE implementing that PERSON are contrary neither to LAW nor to LAW , for the right to freedom of worship is not unlimited and may be subject to control . The exercise of this right is subject to certain conditions set down in the LAW and at law : it must be a known religion , not a secret religion ; there must be no prejudice to public order or morals ; neither must there be any acts of proselytism , such acts being expressly prohibited in the second and third sentences of LAW para . CARDINAL of the LAW . These provisions are , moreover , not contrary to LAW ... , Article CARDINAL ( article CARDINAL ) of which guarantees freedom of religion but Article CARDINAL para . CARDINAL ( article LAW ) of which authorises such limitations as are prescribed by law and are necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights of others .","The said provisions ... , which empower the Minister of ORG and ORG , who has responsibility for all denominations and faiths , to investigate whether the above - mentioned conditions are met , are contrary neither to LAW nor to LAW ) , which do not in any way prohibit investigations of this type ; the purpose of such investigations is moreover merely to ensure that the statutory conditions necessary to grant authorisation are met ; if these conditions are met , the Minister is obliged to grant the requested authorisation . \"","ORG According to the dissenting opinion of CARDINAL of its members , ORG ought to have quashed the impugned judgment since the applicants could not be accused of a punishable offence as section CARDINAL of the PERSON was contrary to LAW .","ORG On DATE the GPE police placed seals on the front door of the room rented by the applicants .","ORG The relevant Articles of LAW read as follows :","\" CARDINAL . ORG The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it ( omodoxi ) , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW of DATE .","ORG The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph .","ORG The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . \"","\" CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual \u2019s religious beliefs .","ORG There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .","ORG The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .","ORG No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .","ORG No oath may be required other than under a law which also determines the form of it . \"","Section CARDINAL of Law no . DATE ( as amended by PERSON no . CARDINAL\/CARDINAL ) provides :","\" The construction and operation of temples of any denomination whatsoever shall be subject to authorisation by the recognized ecclesiastical authority and ORG . This authorisation shall be granted on the terms and conditions specified by royal decree to be adopted on a proposal by the Minister of Education and ORG .","As of publication of the royal decree referred to in the preceding paragraph , temples or other places of worship which are set up or operated without complying with the decree ... shall be closed and placed under seal by the police and use thereof shall be prohibited ; persons who have set up or operated such places of worship shall be fined MONEY and sentenced to a non - convertible term of CARDINAL months\u2019 imprisonment .","...","The term \" temple \" as referred to in this Law ... shall mean any type of building open to the public for the purpose of divine worship ( parish or otherwise , chapels and altars ) . \"","ORG has held that the expression \" place of worship \" within the meaning of these provisions refers to a \" temple of a relatively small size , established in a private building and intended to be used for divine worship by a limited circle of persons as opposed to a building open to the public for the worship of God by everyone without distinction . By operation of a temple or a place of worship under the same provisions is meant the actions by which the temple or place of worship are made accessible to others for the purpose of worshipping God \" ( judgment no . DATE , PERSON , vol . DATE ) .","Section CARDINAL ( CARDINAL ) of the royal decree of CARDINAL May\/CARDINAL DATE provides that it is for the Minister of ORG and ORG to verify whether there are \" essential reasons \" warranting the authorisation to build or operate a place of worship . To this end the persons concerned must submit through their priest an application giving their addresses and bearing their signatures certified by the mayor or the chairman of the district council of their place of residence . More specifically , section CARDINAL of the decree provides as follows :","\" CARDINAL . ORG In order to obtain an authorisation for the construction or operation of temples not subject to the legislation on temples and priests of parishes belonging to ORG , within the meaning of CARDINAL of the PERSON ( CARDINAL\/CARDINAL ) , the following steps must be completed :","( a ) An application shall be submitted by CARDINAL families , from more or less the same neighbourhood and living in an area at a great distance from a temple of the same denomination , it being assumed that the distance makes it difficult for them to observe their religious duties . The requirement of CARDINAL families shall not apply to suburbs or villages .","( b ) The application shall be addressed to the local ecclesiastical authorities and must be signed by the heads of the families , who shall indicate their addresses . The authenticity of their signatures shall be certified by the local police authority , which following an inquiry on the ground shall attest that the conditions referred to in the preceding sub - paragraph are satisfied ...","( c ) The local police authority shall issue a reasoned opinion on the application . It shall then transmit the application , with its opinion , to ORG , which may accept or reject the application according to whether it considers that the construction or use of a new temple is justified or whether the provisions of the present decree have been complied with .","ORG ...","ORG The provisions of paragraph CARDINAL ( a)-(b ) above shall not apply to the issue of an authorisation for the construction or operation of a place of worship . It shall be for the Minister of Education and ORG to determine whether there are essential reasons warranting such authorisation . In this connection the persons concerned shall address to ORG through their priest a signed application , the authenticity of the signatures being certified by the mayor or the chairman of the district council . The application shall also indicate the addresses of the persons concerned ... \"","The Government communicated to the ORG a series of judgments by ORG concerning the authorisation to construct or operate temples or places of worship .","It appears from these judgments that ORG has on several occasions quashed decisions of the Minister of Education and ORG refusing such authorisation on the ground that GPE \u2019s Witnesses in general engaged in proselytism ( judgment no . DATE ) ; or that some of those seeking the authorisation had been prosecuted for proselytism ( judgment no . CARDINAL\/CARDINAL ) ; or again because there was an NORP church close to the proposed place of worship ( QUANTITY km in the same town ) ( judgment no . CARDINAL\/CARDINAL ) and the limited number of FAC ( CARDINAL) compared to the total population ( CARDINAL ) ( judgment ORG ) .","ORG has also held that the requirement that the signatures be certified by the relevant municipal authority ( royal decree of DATE - see paragraph CARDINAL above ) does not constitute a restriction on the right to freedom of religion guaranteed under LAW and LAW ( judgment no . DATE ) . On the other hand , failure to comply with that requirement justifies a refusal to grant the authorisation ( judgment no . CARDINAL\/CARDINAL ) . Finally the silence of the Minister of Education and ORG for DATE following the lodging of an application constitutes failure on the part of the authorities to give a decision as required by law and amounts to an implied rejection , which may be challenged by an application for judicial review ( judgment no . DATE ) .","Authorisation by the local GPE is required only for the construction or operation of temples and not for other places of worship .","ORG In its judgment ( no . CARDINAL\/CARDINAL ) of CARDINAL DATE ORG sitting in plenary session stated that LAW did not preclude prior verification by the administrative authorities that the conditions laid down by that Article for the practice of a faith were satisfied . However , that verification is of a purely declaratory nature . The grant of the authorisation may not be withheld where those conditions are satisfied and the authorities have no discretionary power in this respect . The prior authorisation of the local GPE for the construction of a temple ( see paragraph CARDINAL above ) is not an \" enforceable administrative decision \" , but a \" preliminary finding \" by a representative of the dominant religion who is familiar with the true position regarding religious practice in the locality . The decision rests with the Minister of Education and ORG who may decide to disregard the GPE \u2019s assessment if he considers that it is not supported by reasons in conformity with the law .","ORG subsequently confirmed this case - law holding , inter alia , that the \" authorisation \" of the local GPE was a mere opinion which did not bind the Minister of Education and ORG ( judgment no . CARDINAL\/CARDINAL of CARDINAL DATE ) .","Sections DATE , DATE and CARDINAL of Presidential Decree no . CARDINAL\/CARDINAL codifying the legislative provisions on ORG of CARDINAL December\/CARDINAL DATE govern applications for judicial review of acts or omissions by the administrative authorities :","Acts which may be challenged","\" CARDINAL . ORG An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public - law legal persons and against which no appeal lies to another court .","...","ORG Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph CARDINAL , an application for judicial review is admissible even in respect of the said authority \u2019s failure to issue such decision . The authority shall be presumed to refuse the measure either when any specific time - limit prescribed by the law expires or after DATE have elapsed from the lodging of the application with the authority , which is required to issue an acknowledgment of receipt ... indicating the date of receipt . Applications for judicial review lodged before the above time - limits shall be inadmissible . An application for judicial review validly lodged against an implied refusal [ on the part of the authorities ] is deemed also to contest any negative decision that may subsequently be taken by the authorities . Such decision may however be challenged separately .","... \"","Time - limit","\" CARDINAL . ORG Except as otherwise provided , an application forjudicial review must be made within DATE of the dayfollowing the date of notification of the impugned decision orthe date of publication ... , or , otherwise , of the dayfollowing DATE on which the applicant acquired knowledge ofthe decision . In the cases provided for in DATE , CARDINAL of section DATE , time begins to run when the time - limitsprescribed in those provisions have expired .","... \"","Consequences of the decision","\" CARDINAL . ORG The decision allowing an application for judicial review shall declare the impugned measure void , which entails its general nullity , whether it is a general or individual measure .","ORG The rejection of an application does not preclude the lodging of a new application against the same measure by another person with locus standi .","ORG In the case of failure to take action , where ORG allows the application , it shall refer the case back to the relevant authority so that it can take the action incumbent on it . \""],"violated_articles":["9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80455","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2007,"docname":"CASE OF BOCHAN v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Not necessary to examine P1-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the town of GPE .","NORP In DATE her husband and son , Mr B.P. and Mr B.I. , became members of ORG \u201c Kooperator \u201d ( the \u201c NORP \u201d ) . On DATE the ORG ( the \u201c Committee \u201d ) transferred CARDINAL plots of land in GPE to the Society for the construction of QUANTITY houses . By decision of DATE , ORG transferred a part of that land to the applicant 's husband and son for the erection of a CARDINAL - flat house . On DATE the general assembly of the ORG adopted a decision similar to the ORG 's decision of CARDINAL DATE . On an unspecified date the ORG transferred the land , with which Mr B.P. and Mr B.I. had been provided , back to the ORG .","On DATE the general assembly of the ORG , headed by Mr B.I. , decided to terminate the ORG 's activity . It further decided to transfer the ORG 's property to its members . In particular , PERSON was granted the left side of a house and Mr PERSON was granted its right side . As it was later established by the domestic courts , in DATE there was only the foundation of the future house . In DATE the ORG closed its bank account . The ORG 's state registration was annulled in DATE .","The house was erected by DATE .","DATE Mr B.P. unsuccessfully lodged with ORG ( the \u201c Council \u201d ) a number of applications , requesting the ORG to grant him a right to use the plot of land on which the left part of the house had been constructed .","On DATE Mr B.P. died . The applicant inherited all his possessions .","On DATE the ORG granted Mr B.I. a right to use the plot of land on which the right side of the house had been built .","NORP In DATE the applicant lodged with ORG an administrative law complaint against ORG for failure to consider the request to grant her a right to use the plot of land on which the left part of the house had been constructed . On DATE the court found in favour of the applicant and ordered the ORG to consider the merits of the applicant 's request at its next session .","NORP On DATE the ORG granted PERSON a right to use the plot of land , on which the left side of the house had been built , for construction purposes .","In DATE PERSON lodged with ORG a criminal law complaint against Mr PERSON , accusing the latter of fraud . Mr PERSON alleged that Mr B.I. had unlawfully attempted to take possession of the left part of the house , which Mr PERSON had bought from him according to a sales contract of DATE . On DATE the prosecutors initiated criminal proceedings against Mr B.I.","In DATE Mr B.I. lodged with ORG a criminal law complaint , accusing PERSON of fraud . Mr PERSON alleged that Mr PERSON had falsified the official documents in respect of the left part of the house in order to become its owner . On DATE the department initiated criminal proceedings against Mr M.","On DATE both criminal cases were joined . On DATE ORG terminated the criminal proceedings on the ground of absence of corpus delicti in the actions of Mr B.I. and Mr M. The police established that Mr M. had not been a member of the ORG in DATE . It also found that there were CARDINAL different copies of the decision of the general assembly of ORG , CARDINAL of which confirmed the membership of PERSON and contained his name instead of the name of PERSON , the latter being mentioned in the other copy of that decision . The police held that the existence of CARDINAL different versions was of no importance , as none of the copies had been duly certified by a notary . It further stated that , according to the expert examination of the sales contract of DATE , the contract had been forged by way of combination of CARDINAL printed texts . The police also found that the contract had no binding force , as it had not been certified by a notary or by the ORG .","NORP In DATE the applicant instituted proceedings in the ORG against the ORG , seeking the annulment of the latter 's decision of DATE to grant PERSON a right to use the plot of land , on which the left side of the house had been built . She further requested the court to oblige the ORG to grant her a right to use the plot of land under the left side of the house for an indefinite period of time . The applicant was represented in the proceedings by her son , Mr B. I. Mr M. joined the proceedings as a third party .","In the course of the proceedings , the applicant submitted that her late husband had been the owner of the left part of the house , which had been constructed on the plot of land at issue , as he had been granted that part of the house pursuant to the decision of ORG . After her husband 's death she inherited his property , including the left part of the house . The construction works were carried out at her and her late husband 's expense . She further argued that , although her son had initially agreed to sell the part of the house to Mr M. , the latter had refused to pay the price , upon which they had agreed . Thus , the left part of the house was not sold to Mr M.","Mr M. , in his turn , argued that in DATE he had bought from Mr B.I. the foundation of the left part of the house and some construction materials , which formally belonged to Mr B. P. Mr PERSON further argued that they had agreed that Mr B. I. would complete the construction works . The latter having failed to do so , Mr PERSON built the left part of the house at his own cost . DATE , Mr M. paid Mr B. I. around NORP CARDINAL by instalments . Following this , Mr PERSON refused to pay Mr B. I. higher amounts , as he had completed the construction works himself . Mr PERSON submitted copies of CARDINAL documents dated DATE , according to which Mr B. I. had received from Mr M. CARDINAL karbovanets ( the former transitional currency of GPE before DATE ) for the left part of the house and that the latter had built that part of the house and reimbursed the money , which Mr B. I. had paid for the construction materials . Mr M. alleged that Mr B. I. had signed these documents as the head of the ORG .","The applicant , in reply , contended that the documents , submitted by PERSON M. in support of his claim that he had constructed the house and that he had purchased it , including the contract of DATE , had been forged . Referring to the general interpretation of the relevant domestic law given by ORG of GPE , she further argued that , even assuming that PERSON M. had participated in the construction of the left part of the house , he could not claim ownership rights in its respect .","The ORG submitted that its decision of DATE was lawful , as Mr M. had provided it with the documents which had proved that he had constructed the left part of the house .","On DATE the ORG found for the applicant and quashed the ORG 's decision of DATE . It further ordered the ORG to grant the applicant the right to use the land at issue for an indefinite period of time . The court held that Mr M. had not qualified to be granted that right , as he had not been a member of the ORG and there was no information in the notary 's register that the ORG had transferred the plot of land in question to him .","The ORG appealed in cassation .","On DATE ORG informed ORG of GPE about the ORG 's request for the case to be transferred to another court . The ORG alleged that the applicant 's son was a member of the family of CARDINAL of the judges of ORG . On DATE ORG ordered that the appeal in cassation against the first instance court 's decision was to be heard by ORG , instead of ORG . The applicant was not informed either about the ORG 's request or about the decision of ORG to reassign the case .","On DATE ORG upheld the decision of DATE .","On DATE the Deputy Prosecutor of ORG lodged a protest with the Presidium of ORG , seeking initiation of supervisory review proceedings in the applicant 's case . On DATE the ORG allowed the protest , quashed the decisions of DATE and DATE , and remitted the case for a fresh consideration to ORG . It also noted that there had been no building at the time when the ORG had decided to transfer its part to Mr B. P. Moreover , the parties failed to submit documentary evidence in support of their claims for ownership rights .","On DATE ORG ordered ORG to transfer the case to ORG , the latter being responsible for selecting a first instance court to reconsider the case . According to the Government , ORG did not comply with the instructions of ORG and did not transfer the case .","On DATE the ORG found for the applicant . On DATE ORG upheld the decision of the first instance court . The courts of both instances held that there was enough evidence that Mr ORG had been a member of the ORG . This fact had been established by ORG in its judgment of DATE , which had not been appealed against and had become final , and the applicant could not be held responsible for the absence of other documents proving the membership of her deceased husband . The courts also held that the decision of the general assembly of ORG had , in fact , provided for the transfer of certain objects situated on the plot of land at issue , i.e. the foundation and some construction materials , erroneously referring to them as a building . With regard to the sales contract of DATE , the courts stated that Mr PERSON had not been entitled to sell the left part of the house , irrespective of whether he had acted in his capacity as the head of the ORG or as a private person . They also referred to the findings of the police of DATE that the contract had been falsified . Similarly , they found that the documents submitted by PERSON , in particular a copy of the decision of the general assembly of ORG , stating that he had been one of its members and had been granted the left part of the building , and the receipts in respect of the construction expenses were not valid . In any event , a contribution to the construction expenses could not be a valid ground for an ownership claim .","By letter of CARDINAL DATE , the Deputy President of ORG requested ORG to send the case file to ORG for supervisory review . By the same letter , he informed the ORG and PERSON that the execution of the judgment of DATE was suspended .","On DATE the Deputy President of ORG lodged a protest with ORG of that court , seeking the initiation of supervisory review proceedings in the applicant 's case . On DATE the panel of CARDINAL judges of ORG allowed the protest , quashed the decisions of DATE and CARDINAL DATE , and remitted the case for a fresh consideration . It held that there was no evidence that the left part of the house was owned by either the ORG or Mr B.P. Moreover , there was no information as to the latter 's membership of that ORG , and the lower courts had not verified whether the house had been erected by him in compliance with relevant regulations . The panel further stated that the first instance court had failed to take into consideration the written testimonies of the persons , who had participated in the construction of the house . It stressed that its findings should be taken into account in the new consideration of the case .","On DATE the ORG found for the applicant . The court for the most part reiterated the findings contained in the decision of DATE . It also held that the ORG had been the owner of every construction object on the land at issue before it transferred the title to these objects to its members , including Mr B.P. On DATE ORG upheld the decision of CARDINAL DATE .","On DATE the Deputy President of ORG lodged a protest with ORG of that court , seeking again the initiation of supervisory review proceedings in the applicant 's case . On DATE the panel of CARDINAL judges of ORG allowed the protest , quashed the decisions of DATE and DATE , and remitted the case for a fresh consideration . It held that the lower courts had failed to take into account the instructions contained in its decision of DATE . The panel reiterated that the first instance court had failed either to verify whether the ORG had been the owner of the objects in question ; whether the ORG had been in fact liquidated and , if so , when it had been liquidated ; whether the ORG had been granted a construction permit ; or to establish who had actually constructed the part of the house at issue . The panel found that the ORG had not had authority to transfer the land to third parties and its members had not had rights to build houses on that land . It finally held that Mr M. had in fact obtained the plot of land at issue as well as all the documentation in respect of the left part of the house , which remained in his actual possession .","On DATE ORG , following the request of Mr M. , invited ORG to assign the case to CARDINAL of the first instance courts in the GPE region . On DATE the regional court transferred the case to ORG .","In DATE Mr M. lodged a counter claim , seeking recognition of his ownership rights in respect of the left part of the house .","On DATE ORG ruled in favour of Mr M. and rejected the applicant 's claims . It held that Mr M. had lawfully bought the foundation of the left part of the building and had completed the construction himself , which was supported by the evidence examined in the proceedings . In particular , the court stated that the contract of DATE was valid , as it had been seized by the police from the flat of PERSON in DATE , and the CARDINAL documents of DATE were , according to the expert 's conclusions , also valid . The court further noted that the written testimonies , certified by a notary , of CARDINAL witnesses , who had carried out construction works , and Mr NORP , who had been heard by the court as a witness , confirmed that PERSON PERSON had built the left part of the house at his own cost . The court also relied on the letter of CARDINAL DATE , submitted by PERSON M. , in which ORG stated that , according to the conclusions of its inquiry into the matter , the left part of the house was built by Mr M. The court also found that the latter was in actual possession of that part of the house , as he had been paying all the communal charges in its respect . The court refused to admit as evidence copies of the bills of costs in respect of construction materials , submitted by the applicant , on the ground that it was not possible to establish whether these construction materials had been used to build the left part of the house .","On DATE the applicant requested ORG to transfer the case to another court on the grounds that it would be difficult for her to participate in the hearings before ORG with regard to her age and state of health , on one hand , and the distance between her place of residence and the place of the hearing , on the other . On DATE ORG rejected her request as unsubstantiated .","On DATE ORG upheld the decision of DATE . It also considered that Mr B.P. had not been a member of the ORG , as there were no documents proving his membership and he had resided in another location .","In the course of the proceedings before ORG and ORG , the applicant requested the courts to summon the witnesses , on whose written statements PERSON PERSON had relied to show that he had constructed the left part of the building . She argued that these testimonies were false and that some of these witnesses could confirm her submissions that certain construction works had been carried out at her and her late husband 's expense . The courts did not reply to her request .","In DATE the applicant lodged an appeal in cassation against the decisions of DATE and DATE under the new transitional cassation procedure . She complained of the lower courts ' incorrect assessment of the evidence . The applicant also argued that the courts had refused to summon the witnesses on whose written testimonies they had relied in their decisions . She maintained that neither she nor her representative had had an opportunity to question these witnesses .","On DATE ORG considered the merits of the applicant 's appeal in cassation and rejected it . ORG held that Mr M. had lawfully purchased a part of the foundation of the building and had valid grounds to use the plot of land on which the left part of the building had been constructed . The court also held that the written statements of the witnesses , confirming that Mr M. had completed the construction , had been lawfully admitted as evidence in the case .","NORP In DATE the applicant and Mr B. I. instituted another set of proceedings in the ORG against Mr M. , CARDINAL other members of the family of PERSON M. , and ORG , seeking the annulment of the ownership certificate of Mr M. in respect of the house . The applicant and Mr B. ORG also sought the annulment of certain other official documents , in which it was mentioned that PERSON M. had built a part of the house .","On DATE the court found against the applicant and Mr B. I. On DATE and CARDINAL DATE , respectively , ORG and ORG upheld the decision of the first instance court .","According to the applicant , the courts , which considered her second claim , based their decisions on the findings of ORG , ORG and ORG of GPE made in the course of the first set of civil proceedings ( see paragraphs CARDINAL , DATE and DATE above ) .","Under LAW \u00a7 CARDINAL of the Code , the President of ORG of GPE and his or her deputies , as well as the presidents of the regional courts were entitled to transfer a case from CARDINAL court to another , upon request of the parties , other participants in the proceedings , the prosecutor , or on their own motion . Article CARDINAL \u00a7 CARDINAL envisaged that the court , which was dealing with the case , could transfer it to another court , ( a ) if the former court found that it would be more expedient to examine the case in the court which enjoyed jurisdiction over the place of the principal events of the case , or in the court other than the CARDINAL chosen by the plaintiff ; ( b ) if the former court allowed the well - founded request of the defendant , whose place of residence had been previously unknown , to hear the case in the court which enjoyed jurisdiction over the place of the defendant 's actual residence . No formal decision was adopted concerning the transfer of the case .","According to LAW , the case , which was transferred from CARDINAL court to another pursuant to LAW , should be accepted by the recipient court . No disputes between the courts over their jurisdiction were allowed .","Pursuant to Articles CARDINAL , court decisions , rulings and resolutions might have been reviewed in supervisory review proceedings .","Under LAW the court that considers a case in supervisory review proceedings had power :","to leave a judgment , ruling , resolution without changes , and refuse a protest ;","to quash , in full or in part , a judgment , ruling , resolution and to remit a case for a fresh consideration to court of first or cassation instance ;","to quash , in full or in part , a judgment , ruling , resolution and to discontinue proceedings or leave a case without consideration ;","to uphold CARDINAL of the judgments , rulings , resolutions in a case ;","Article CARDINAL provided that instructions of the court which had reviewed a case were binding on the court which later re - examined it . These instructions were binding within the limits envisaged by LAW of the Code . According to paragraph CARDINAL of the latter provision , court of cassation had no competence to establish facts which had not been established or disproved by a contested judgment , to decide in advance on question of reliability of a particular piece of evidence , prevalence of certain evidence , and on questions as to which norm of substantive law was to be applied or which decision was to be made in the course of new consideration of the case .","According to Article CARDINAL of the new Code , the parties to the proceedings are entitled to lodge with ORG of GPE an appeal against the court decisions , which were subject to review in cassation , in view of the exceptional circumstances .","Under LAW , the court decisions in civil matters may be reviewed in view of exceptional circumstances if they are appealed against on the ground that an international judicial authority , whose jurisdiction was recognised by GPE , found that a decision in a civil case violated the international commitments of GPE .","Articles CARDINAL and CARDINAL provide that the appeal on the above ground shall be examined by the panel of CARDINAL of judges of ORG under the rules applicable to cassation proceedings .","Pursuant to Article CARDINAL , the panel has power","to reject an appeal ;","to quash , in full or in part , the decision at issue and to remit the case for a fresh consideration to the court of first instance , the court of appeal or cassation ;","to quash the decision of the court of appeal or cassation and to uphold the decision which was wrongly quashed ;","to quash the decisions in the case and to discontinue the proceedings ;","to change the decision or to adopt a new decision on the merits of the case .","The decision of the panel is final .","The relevant parts of the PERSON read as follows :","\u201c This PERSON regulates relations emanating from : the ORG 's obligation to enforce judgments of ORG in cases against GPE ; the necessity to eliminate reasons of violation by GPE of ORG and protocols thereto ; the need to implement NORP human rights standards into legal and administrative practice of GPE ; and the necessity to create conditions to reduce the number of applications before ORG against GPE . \u201d","\u201c CARDINAL . For the purposes of this PERSON the following terms shall be used in the following meaning :","...","the Convention \u2013 the CARDINAL Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols thereto agreed to be binding by the Verkhovna Rada of GPE ;","the Court \u2013 ORG ;","...","Creditor \u2013 a ) an applicant before ORG in a case against GPE in whose favour the ORG rendered its judgment or in whose case the parties have reached a friendly settlement , or his representative , or his successor ...","Enforcement of a judgment \u2013 a ) payment of compensation to the ORG ; b ) adoption of individual measures ; c ) adoption of general measures ;","... \u201d","\u201c CARDINAL . Individual measures shall be adopted in addition to the payment of compensation and are aimed at restoring the infringed rights of the ORG .","Individual measures include :","a ) restoring as far as possible the legal status which the ORG had before the ORG was violated ( restitutio in integrum ) ;","... \u201d","The previous legal status of the ORG shall be restored , inter alia , by means of :","a ) reconsideration of the case by a court , including reopening of the proceedings in that case ;","b ) reconsideration of the case by an administrative body . \u201d","\u201c CARDINAL . ORG Agent shall within DATE from receipt of the ORG 's notification that the judgment has become final :","a ) send the ORG a notification explaining his right to initiate proceedings on the review of his case and\/or to reopen the proceedings according to the law in force ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79910","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF ISTRATII v. MOLDOVA","importance":3,"conclusion":"Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicants , PERSON , Mr PERSON and Mr NORP , are NORP nationals who were born in DATE , DATE and DATE respectively and all live in PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows ( most events happened in the same way and on DATE in respect of all the applicants ; whenever facts differ , it is specified in the text ) .","On DATE the Department for Cross - Border and Information Crime of ORG opened a criminal investigation against the applicants for fraud in connection with the purchase of plots of land in PERSON , which allegedly cost the ORG MONEY ( ORG ) .","On DATE the prosecutor requested warrants for the pre - trial detention of the applicants . On DATE ORG judges issued warrants for the applicants ' pre - trial detention for DATE for the following reasons :","\u201c [ Each applicant ] is suspected of committing a serious offence for which the law provides a punishment of deprivation of liberty for DATE ; the evidence submitted to the court was lawfully obtained ; the isolation of the suspect from society is necessary ; he could abscond from law enforcement authorities or the court ; could obstruct the finding of truth in the criminal investigation or re - offend \u201d .","On DATE the applicants appealed against the decisions ordering their pre - trial detention , questioning the grounds for that detention . They submitted that they had appeared before the investigating authorities when summoned and had not attempted to interfere in any way with the investigation or to abscond thereafter . Each applicant emphasised that he had no criminal record , had a family , including minor children , and a permanent residence in PERSON , and had special medical needs . Mr PERSON submitted that he was the only breadwinner in his family and that his detention might cause serious hardship for his family , including his elderly mother who suffered from cardiac disease . Mr Lu\u0163can added that he had come to the investigating authority directly from the maternity hospital and that he had not even seen his son , born on DATE he was arrested , and could not give any support to his wife and child .","On DATE the ORG rejected the appeals , without responding explicitly to any of the above submissions . It rejected Mr ORG 's appeal for the following reasons :","\u201c In exceptional circumstances , depending on the complexity of the criminal case and the gravity of the crime and where there is a risk that the accused might abscond or put pressure on witnesses , the period of pre - trial detention during the criminal investigation may be prolonged ... taking into account that Mr ORG is suspected of committing a particularly serious offence , that there is a risk that he could put pressure on witnesses , could abscond from law enforcement authorities ; the separation of the suspect from society remains necessary \u201d .","It rejected Mr PERSON 's appeal for the following reasons :","\u201c The request to remand Mr PERSON was examined within the limits of the law and was correctly accepted on the basis of documents in the criminal file , which was opened in accordance with the law and with the need to remand the suspect \u201d .","ORG rejected PERSON 's appeal for the following reasons :","\u201c Mr NORP is suspected of committing a serious offence for which the law provides a punishment of deprivation of liberty for more than two years ; he could abscond from law enforcement authorities or the court ; could obstruct the finding of truth in the criminal investigation . ... The lower court correctly reasoned the applicant 's remand without committing any procedural violations \u201d .","On DATE the ORG prolonged the applicants ' detention on remand for DATE . The applicants made submissions against their continued detention . The court gave similar reasoning in each case , citing LAW of LAW ( ' ORG ' , see paragraph CARDINAL below ) .","On DATE the ORG upheld those decisions . The court used similar reasoning in each case , finding that :","\u201c The circumstances which were the basis for his detention remained valid ; there was a risk that [ each applicant ] might put pressure on victims and witnesses . In prolonging the remand no violations of the law affecting the lawfulness of the decision have been established \u201d .","NORP The prosecutor obtained decisions from LOC prolonging the applicants ' detention on remand on CARDINAL occasions , in DATE , DATE and DATE . All of these decisions were upheld by ORG . NORP The reasons given for each of these prolongations were similar to those in the court decisions of CARDINAL and DATE mentioned above .","The applicants made habeas corpus requests to the investigating judge of ORG , noting , inter alia , that some of their property had been seized by the court and that this would be an additional guarantee of their proper conduct . The requests were rejected in DATE and in DATE . The court used similar reasoning in each case , finding that :","\u201c [ the applicant ] is accused of committing a particularly serious offence for which the law provides a punishment of deprivation of liberty for DATE ; the prosecution case is not complete and a further criminal investigation is to be conducted , there is a risk that he may abscond from law enforcement authorities ; there is a continued need to separate him from society and the grounds for his detention on remand remain valid \u201d .","On DATE , following another habeas corpus request , ORG ordered the applicants ' release , subject to an obligation not to leave the country , finding that :","\u201c [ the applicants ] have no criminal record , all have permanent residence , are well appreciated at work , have families and minor dependants . Mr Lu\u0163can suffers from a serious illness , Mr ORG underwent surgery during detention and needs treatment ; all have jobs and none has absconded from the investigation authorities ; there is no evidence that they have obstructed the investigation in any manner ; the criminal file is now ready for trial ; all the prosecution evidence has been gathered and all witnesses have made statements .","Accordingly , the court considers that the accused can not abscond from the court , obstruct the criminal investigation or commit other crimes and considers it possible to replace the preventive measure of detention on remand with an obligation not to leave the country \u201d .","DATE and DATE Mr PERSON was held in the remand centre of ORG in PERSON ( ORG ) .","Until DATE there were allegedly no medical personnel in that institution . The applicant had an acute crisis of paraproctitis with rectal haemorrhage on DATE . He was transported to a hospital TIME after the incident . He was handcuffed to a wall heater until his surgery on DATE and was guarded at all times by CARDINAL ORG officers .","TIME after the operation , the ORG officers accompanying him requested his transfer to the GPE detainee hospital . The applicant was admitted to the detainee hospital TIME after leaving the civil hospital where he had been operated upon . Medical reports drawn up after the transfer confirm that Mr PERSON complained about post - surgery problems in DATE following his transfer .","NORP In response to the applicant 's lawyer 's questions , PERSON , the surgeon who had operated upon the applicant , wrote that the recovery period after such surgery was typically DATE and that on DATE the applicant had been handcuffed to a wall heater at the request of ORG officers , who had stayed in his hospital room . According to PERSON , the patient could not move after the surgery because of pain and the risk of bleeding .","The Government annexed to their observations of DATE an explanatory note written by PERSON The doctor explained that Mr PERSON had not been handcuffed during the surgery , but had been handcuffed to a wall heater before surgery and that no ill - treatment of any kind had been applied to him . The doctor confirmed that a DATE recovery period was necessary after surgery of the type undergone by the applicant .","On DATE all CARDINAL applicants were transferred to the remand centre of ORG in PERSON ( also known as prison no . CARDINAL ) . According to the applicants , they were detained in inhuman and degrading conditions there ( see paragraphs CARDINAL below ) .","The conditions in this particular remand centre were reviewed CARDINAL times by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG , see paragraph CARDINAL below ) . The problem of overcrowding and insufficiency of funding for repairs , meat , fish , dairy products and bedding was also emphasised in CARDINAL domestic reports ( see paragraph CARDINAL below ) .","The applicants ' lawyers asked for permission to have confidential meetings with their clients . They were offered a room where they were separated by a glass wall and allegedly had to shout to hear each other . It appears from the photographs and video recording submitted by the Government that in the lawyer - client meeting room of the LOC detention centre , the space for detainees is separated from the rest of the room by a door and a window . The window appears to be made of CARDINAL plates of glass . Both plates have small holes pierced with a drill ; however the holes do not coincide so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There appears to be no space for passing documents between a lawyer and his client .","According to the applicants , they were able to hear conversations between other detainees and their lawyers , which made them refrain from discussing at length their cases . The Government did not dispute this .","The relevant domestic law has been set out in the case of ORG v. GPE ( no.CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) .","NORP In addition , the relevant provisions of LAW read as follows :","\u201c Article CARDINAL","\u201c ( CARDINAL ) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are sufficient reasonable grounds for believing that an accused ... will abscond , obstruct the establishment of the truth during the criminal proceedings or re - offend , or they can be applied by the court in order to ensure the enforcement of a sentence .","( CARDINAL ) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding DATE . In cases concerning offences in respect of which the law provides for a custodial sentence of DATE , they may be applied if ... the accused has already committed the acts mentioned in paragraph ( CARDINAL ) .","( CARDINAL ) In deciding on the necessity of applying preventive measures , the prosecuting authority and the court will take into consideration the following additional criteria :","CARDINAL ) NORP the character and degree of harm caused by the offence ,","CARDINAL ) NORP the character of the ... accused ,","CARDINAL ) NORP his \/ her age and state of health ,","CARDINAL ) NORP his \/ her occupation ,","CARDINAL ) his \/ her family status and existence of any dependants ,","CARDINAL ) his \/ her economic status ,","CARDINAL ) NORP the existence of a permanent place of abode ,","CARDINAL) other essential circumstances .","Article CARDINAL","( CARDINAL ) NORP In exceptional circumstances , depending on the complexity of the criminal case and the gravity of the crime and where there is a risk that the accused will abscond or put pressure on witnesses , destroy or tamper with evidence , the period of pre - trial detention during the criminal investigation may be prolonged ... \u201d","DATE ORG held a strike , refusing to attend any procedures regarding persons detained in the remand centre of the ORG until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients . The demands of ORG were refused ( see ORG v. GPE , no . CARDINAL , \u00a7 CARDINAL , DATE ) .","On DATE ORG held a meeting at which the President of ORG and another lawyer informed the participants that they had taken part , together with representatives of ORG , in a commission which had inspected the LOC detention centre . During the inspection they asked that the glass partition be taken down in order to check that there were no listening devices . They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by ORG . The ORG administration rejected the proposal .","On DATE the ORG adopted decision no . CARDINAL , regarding ORG in the Sphere of Human Rights for DATE . The plan includes a number of objectives for DATE aimed at improving the conditions of detention , including the reduction of overcrowding , improvement of medical treatment , involvement in work and reintegration of detainees , as well as the training of personnel . Regular reports are to be drawn up on the implementation of the Plan .","At an unspecified date ORG adopted its \u201c Report on the implementing by ORG in the Sphere of Human Rights for DATE , approved by ORG no . CARDINAL of DATE \u201d . On DATE ORG adopted a report on the implementation of ORG . Both those reports confirmed the insufficient funding and related deficiencies and the failure to implement fully the action plan in respect of most of the remand centres in GPE , including Prison no . CARDINAL in GPE . The first of these reports mentioned , inter alia , that \u201c as long as the aims and actions in [ the National Plan of Action ] do not have the necessary financial support ... it will remain only a good attempt of the ORG to observe human rights , described in ORG no . CARDINAL of DATE , the fate of which is non - implementation , or partial implementation \u201d . On DATE the ORG adopted its decision no . CARDINAL \u201c Concerning the results of the verification by the special ORG regarding the situation of persons detained pending trial in the remand centre no . CARDINAL of ORG whose cases are pending before the courts \u201d . The decision found , inter alia , that \u201c the activity of ORG in the field of ensuring conditions of detention does not correspond to the requirements of the legislation in force . \u201d","The relevant findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) , read as follows ( unofficial translation ) :","\u201c DATE . Although not a deliberate ill - treatment , the ORG is compelled to point out that at prison No . CARDINAL , the vast majority of prisoners were subjected to a combination of negative factors - overcrowding , appalling material and hygiene conditions , virtually non - existent activity programmes - which could easily be described as inhuman and degrading treatment .","In contrast , in all the other detention areas , living conditions of the vast majority of the prison population left a considerable amount to be desired . In the most of the cells , the living space per prisoner was well below the minimum standard set and the cramming in of persons had reached an intolerable level . ... In addition , the delegation observed that cells of CARDINAL m\u00b2 to CARDINAL m\u00b2 accommodated CARDINAL people .","Furthermore , in these cells access to natural light was very limited , artificial lighting was mediocre , and the air polluted and rank . For prisoners still under investigation ( i.e. over QUANTITY prisoners ) , the situation was even worse , their cells being virtually totally without access to natural light because of the thick external metal blinds covering the windows . By force of circumstances , the equipment was reduced to the bare minimum , comprising metal or bunk beds which were extremely rudimentary and in a poor state , and a table and CARDINAL or CARDINAL benches . Furthermore , in many cells , there were not enough beds and prisoners had to share them or sleep in turns . In addition , the bedding was in a bad condition ; the very small stocks of mattresses , blankets and sheets was not enough and many prisoners without family or resources had to sleep just on the bed frame and\/or the mattress .","The cells had a sanitary annex , a real source of infection . Above the NORP toilet was a tap which served both as a flush and as a source of water which prisoners could use to freshen up or wash . Moreover , this area was only partially partitioned by a small low wall QUANTITY high , which meant that it was not possible to preserve one 's privacy .","The state of repair and cleanliness in the cell blocks , overall , was also of considerable concern . In addition , many of the cells were infested with cockroaches and other vermin and some prisoners also complained that there were rodents .","To sum up , the living and hygiene conditions for the vast majority of the prison population were execrable and , more particularly , constituted a serious health risk . \u201d","\u201c CARDINAL . The ORG recommends that the right of access to a lawyer as from the very outset of custody be rendered fully effective in practice . It also recommends that detainees be able to receive visits from lawyers in conditions fully ensuring the confidentiality of the discussions . ...","In certain prisons , particularly those serving as remand establishments , the situation was exacerbated by sometimes severe overcrowding ( as at Prison No . CARDINAL in PERSON , which in DATE held CARDINAL prisoners , compared with an official capacity of CARDINAL . ...","The DATE visit showed how urgent it is for the authorities to put their plans for legislative reforms into effect ; the extension of the prison estate does not constitute a solution . As already stressed in the previous ORG report , it is far more important to revise the current legislation and practice concerning detention on remand and sentencing and execution of sentences , and the range of available non - custodial sentences . This is a sine qua non if there is to be any hope in the near future of offering decent conditions in prisons . ...","... the follow - up visit to Prison No . CARDINAL in PERSON revealed positive changes which the ORG welcomes . It particularly approves of the removal of the heavy blinds covering the windows of cells looking onto the interior of the establishment .","That said , the appalling living conditions and state of hygiene in buildings I , II and III , including the transit cells , described in DATE and DATE of the previous report , had not changed ( except as far as access to natural light is concerned ) . Indeed , the acute overcrowding in these buildings exacerbated matters still further . In the few cells viewed that were properly equipped and fitted out , this was due to the prisoners themselves , who had been able to procure what was needed from their families . \u201d","\u201c b. Remand Centre of ORG","The material conditions in this remand centre were in clear contrast to those in the remand centre of ORG . The cells , approximately CARDINALmCARDINAL , could accommodate a maximum of CARDINAL detainees . They had access to daylight , had sufficient artificial lighting and were well ventilated . They had partially separated toilets and lavatories , as well as full bed linen ( mattress , sheets , pillow , blanket ) . ...","In sum , the material conditions in this remand centre prove that it is clearly possible to ensure in GPE adequate material conditions of detention .","The situation in the majority of penitentiaries visited , faced with the economic situation in the country , remained difficult and CARDINAL recounted a number of problems already identified during the visits in DATE and DATE in terms of material conditions and detention regimes .","Added to this is the problem of overcrowding , which remains serious . In fact , even if the penitentiaries visited did not work at their full capacity \u2013 as is the case of prison no . CARDINAL in which the number of detainees was sensibly reduced in comparison with that during the last visit of the Committee \u2013 they continued to be extremely congested . In fact , the accommodation capacity was still based on a very criticisable CARDINAL per detainee ; in practice often even less .","The follow - up visit to Prison no . CARDINAL in PERSON does not give rise to satisfaction . The progress found was in fact minimal , limited to some current repair . The repair of the ventilation system could be done due primarily to the financial support of civil society ( especially NGOs ) , and the creation of places for DATE walk was due to support by the detainees and their families .","The repair , renovation and maintenance of cells is entirely the responsibility of detainees themselves and of their families , who also pay for the necessary materials . They must also obtain their own bed sheets and blankets , the institution being able to give them only used mattresses .","... In sum , the conditions of life in the great majority of cells in FAC and the transit cells continue to be miserable . ...","Finally , despite the drastic reduction of the overcrowding , one still observes a very high , even intolerable , level of occupancy rate in the cells .","... everywhere the quantity and quality of detainees ' food constitutes a source of high preoccupation . The delegation was flooded with complaints regarding the absence of meat , dairy products . The findings of the delegation , regarding both the food stock and the communicated menus , confirm the credibility of these complaints . Its findings also confirmed that in certain places ( in Prison no.CARDINAL , ... ) , the food served was repulsive and virtually inedible ( for instance , presence of insects and vermin ) . This is not surprising , given the general state of the kitchens and their modest equipment .","GPE authorities have always emphasized financial difficulties in ensuring the adequate feeding of detainees . However , ORG insists that this is a fundamental requirement of life which must be ensured by the ORG to persons in its charge and that nothing can exonerate it from such responsibility . ... \u201d","Resolution ( CARDINAL ) CARDINAL of ORG concerning LAW for the Treatment of Prisoners ( adopted by ORG on DATE ) , insofar as relevant , reads as follows :","\u201c CARDINAL . An untried prisoner shall be entitled , as soon as he is imprisoned , to choose his legal representative , or shall be allowed to apply for free legal aid where such aid is available , and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him , and to receive , confidential instructions . At his request he shall be given all necessary facilities for this purpose . In particular , he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence . Interviews between the prisoner and his legal adviser may be within sight but not within hearing , either direct or indirect , of a police or institution official . \u201d","Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) , insofar as relevant , reads as follows :","\u201c CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice . ...","CARDINAL ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential . ...","CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77388","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2006,"docname":"CASE OF STAYKOV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 3;No violation of Art. 5-3 and 6-1 (loss of victim status);Violation of Art. 5-4;No violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["On DATE the applicant was arrested and charged with murdering in a cruel manner for gain the eightyoneyears ' old adoptive mother of a friend of his , PERSON","On DATE he was indicted . ORG held hearings in his case on DATE , DATE and DATE , but on DATE discontinued the trial and remitted the case back to the prosecution authorities for the rectification of a breach of the rules of procedure .","Following an additional investigation , on DATE the applicant was indicted again . A hearing listed before ORG for DATE was adjourned because the applicant 's counsel were absent . After holding hearings on DATE , DATE and DATE , in a judgment of CARDINAL DATE that court found the applicant guilty and sentenced him to DATE imprisonment .","Both the applicant and the prosecution appealed to the former ORG . A hearing listed for DATE was adjourned because the applicant 's counsel were on leave , and took place on DATE . In a judgment of DATE the former ORG quashed the applicant 's conviction and sentence and remitted the case for further investigation , holding that ORG had failed to substantiate its findings of fact and had erred in assessing the evidence .","On DATE the case was transmitted to the investigator . He charged PERSON with aiding and abetting the applicant . After that the case was twice forwarded to the prosecution and twice referred back for further investigation . That investigation was finished on DATE and on DATE the applicant and PERSON were indicted .","CARDINAL hearings listed before ORG for DATE and CARDINAL DATE did not take place . On DATE the court granted the applicant 's request for the recusal of all prosecutors and judges of that court and sent the case to ORG . The judge to whom the case was assigned there considered that it should be examined by ORG and sought a ruling on the matter by ORG . In DATE ORG held that the case was to be examined by ORG .","The proceedings before ORG then resumed , but at a hearing held on DATE the court referred the case back to the prosecution authorities , finding that there had been procedural breaches which had violated PERSON defence rights . On DATE the prosecution authorities in turn referred the case back to the investigator , noting , inter alia , that he had not complied with instructions given as early as DATE .","In DATE the prosecution authorities decided to stay the proceedings , as PERSON whereabouts were unknown . Upon the applicant 's appeal , their decision was quashed on DATE by ORG , which held that the excessive length of the proceedings violated the applicant 's rights and criticised the prosecution for having stayed them . The prosecution 's ensuing appeal to ORG was dismissed on DATE .","On DATE the prosecution authorities referred the case back for further investigation . This investigation was concluded on DATE and the case was sent to the prosecution authorities .","On DATE the prosecution authorities dropped the charges against PERSON , finding that they had not been sufficiently made out . On DATE they indicted the applicant .","ORG held hearings on DATE , CARDINAL DATE and DATE and DATE . In a judgment of DATE it acquitted the applicant .","Upon the appeal of the prosecution , on DATE ORG quashed the lower court 's judgment and decided the case on the merits . It found the applicant guilty and sentenced him to DATE imprisonment .","The applicant appealed to ORG . After holding a hearing on DATE , on DATE that court quashed the lower court 's judgment and remitted the case .","ORG examined the case anew . In a judgment of DATE it once again found the applicant guilty and sentenced him to DATE imprisonment . In determining the sentence it noted , inter alia , that the criminal proceedings against him had been \u201c particularly lengthy \u201d .","NORP The applicant again appealed to ORG . After holding a hearing on DATE , in a final judgment of DATE that court quashed the lower court 's judgment , examined the case on the merits and acquitted the applicant , finding that the charges against him had not been proved beyond a reasonable doubt .","For the examination of the case the authorities interviewed repeatedly CARDINAL witnesses , appointed several experts and gathered other evidence . The case file reached CARDINAL volumes .","On DATE the applicant was arrested and remanded in custody on the basis of an investigator 's order of CARDINAL DATE , which stated that he had been charged with an offence punishable with DATE imprisonment or death , that he did not have a fixed place of abode and that his whereabouts were unknown . There was also a risk that he could endanger the lives of witnesses .","On DATE ORG denied an application for release by the applicant , holding that detention was mandatory in the case of persons charged with an offence punishable by DATE imprisonment . An exception was only possible if there was no risk , i.e. , it was physically unfeasible for the applicant to abscond or reoffend , which was not the case . A further application for release made on DATE was likewise denied by the court , which noted that it had already ruled on such an application DATE and there had been no change in the circumstances since then . It also stated that the applicant 's arguments concerning the lack of evidence against him went to the merits of the criminal case , not to the issue whether or not he should be released .","On DATE the applicant was convicted and sentenced to a prison term . That conviction and sentence were quashed on DATE ( see paragraphs CARDINAL and CARDINAL above ) .","After DATE the applicant remained in custody . On DATE ORG refused his application for release , reasoning that , in view of the applicant 's threats against certain witnesses and a prosecutor , there was a risk that he could hinder the investigation by destroying evidence and suborning and intimidating witnesses .","On an unspecified date in the meantime the applicant made offensive remarks against a prosecutor in a complaint concerning the handling of his case . On DATE he was convicted on account of these remarks and sentenced to DATE imprisonment . On an unspecified date he was convicted on other charges concerning events before DATE and sentenced to a term of imprisonment . In accordance with the rules on sentencing , he was ordered to serve DATE prison term as a result of these convictions and sentences . It appears from the documents in the case file that the applicant did so DATE and DATE . After that his pretrial detention on the murder charges continued .","On DATE ORG denied an application for release by the applicant . It reasoned that in view of the seriousness of the charges against him pre - trial detention was mandatory by virtue of LAW of DATE ( \u201c the ORG \u201d ) . It also stated that it was impossible to use the exception provided for by paragraph CARDINAL of that Article , as its application was excluded by paragraph CARDINAL thereof owing to the fact that there were CARDINAL other sets of criminal proceedings pending against the applicant ( see paragraphs PERSON below ) .","The applicant submitted a number of other applications for release , some of which were denied by the prosecution authorities and some of which were apparently not replied to . Some of the decisions contained no reasoning , while others stated that his remand in custody was mandatory in view of the seriousness of the charges against him .","The applicant also submitted a number of applications for release to the competent court . He filed such applications on DATE and DATE , and on DATE , DATE and DATE . He advanced various arguments regarding the weak case against him , the lack of a risk of fleeing and his weakening health . Most of the applications were dismissed with reference to LAW ORG . Thus , in a decision of CARDINAL DATE ORG stated the applicant had been charged with a serious intentional offence and his detention was accordingly mandatory under LAW ORG . There were no grounds to apply the exception provided for by paragraph CARDINAL of that Article , as a hearing had been listed in the trial against him , whereas his position with regard to the charges revealed a genuine risk that he might abscond or impede the course of justice .","On DATE ORG ordered the applicant 's release on bail , holding that after DATE of detention and several rounds of investigation there was no risk of him jeopardising the investigation . There was furthermore no indication that he could flee or reoffend . The court also said that the length of the applicant 's detention had exceeded a \u201c reasonable time \u201d within the meaning of the Convention . It set the bail at CARDINAL old NORP levs ( ORG ) , without providing reasons as to the amount . Its order was not subject to appeal ( see paragraph CARDINAL below ) .","The applicant was not released immediately as he was unable to secure the amount . Following an unsuccessful attempt to have it reduced by the court , he posted bail and was released on DATE .","The applicant spent his time in custody ( DATE ) on the premises of ORG and in FAC . It appears from the documents in the case file and the parties ' submissions that throughout the bulk of this time he was in FAC , and was kept in ORG detention facility during CARDINAL unspecified periods ( probably when the proceedings against him were pending at the pretrial stage ) , the latest of which ended on DATE . The parties did not specify the exact periods when the applicant was kept on ORG premises , despite being requested to do so after the case was declared admissible ( see paragraphs CARDINAL and CARDINAL above ) .","At the relevant time , the cells of ORG detention facility had central heating and were DATE save for CARDINAL \u2013 equipped with an en suite toilet . Natural light came through glass tiles secured by metal bars . According to the applicant , the influx of natural light was limited . The detainees slept on plank beds . The applicant averred that at times he had been detained together with CARDINAL other persons in a cell measuring QUANTITY . According to him , the ventilation system in the cell only worked for TIME a day . He also stated that there was no openair exercise area on the LOC . He was accordingly not allowed to take walks . Visitors were allowed only once a month . Food was of extremely poor quality .","According to the Government , the LOC of ORG detention facility were relatively new , built in DATE , offered conditions better than those of ORG detention facilities in other towns , and were in line with the minimum NORP standards . The Government did not comment on the number of inmates kept in the applicant 's cell .","The applicant submitted that in FAC he was kept in a cell measuring QUANTITY , which he shared at times with CARDINAL other inmates . According to him , during TIME they had to relieve themselves in a bucket kept in the cell . In DATE warm water for bathing was available once DATE , whereas later , in DATE , a warm shower was possible only once a month with the result that he often had to take showers with cold water , which had a negative impact on his health . He was allowed to take walks for TIME a day .","The Government did not comment on the conditions in FAC .","During his time in custody the applicant was examined by a doctor on unspecified dates , apparently each time he was transferred from FAC to ORG detention facility , and was found to be physically healthy . However , in DATE he was diagnosed with tuberculosis , for which he was treated in hospital DATE and DATE . Apparently he continued to receive medication for his illness after he was released from hospital . Reports on the applicant 's mental health noted that he suffered from depression .","On DATE the applicant issued a civil action against ORG and ORG in GPE . In his statement of claim he described the allegedly excessive length of the criminal proceedings against him and of his detention and pointed to the attendant negative consequences , such as a smear campaign against him in the press , a worsening of his health , the retention of the bail amount and a prohibition to leave the country . He alleged that this breached his rights under LAW , his right under LAW to a trial within a reasonable time , and his right under LAW to respect for his private life . He claimed CARDINAL new NORP levs ( ORG ) in damages . He also requested the court to order the defendants to return the bail amount and allow him to leave the country .","Following instructions by the court to specify his request for relief , in CARDINAL additional memorials the applicant indicated that he requested ORG CARDINAL for the breach of his right to a trial within a reasonable time , BGN CARDINAL for the injury to his reputation resulting from the impression , stemming from the length of the proceedings , that he was guilty of the offence alleged against him , and BGN CARDINAL for the impossibility to leave the country during the pendency of the proceedings . He also stated that his claim was under section CARDINAL of ORG of DATE ( see paragraph CARDINAL below ) .","In a judgment of DATE ORG dismissed the applicant 's action , holding that the defendants , being part of the judicial branch , did not carry out \u201c administrative action \u201d within the meaning of LAW in performing their duties relating to the processing of the criminal case against the applicant . They could hence not be found liable for a breach of that provision . On the other hand , the applicant did not plead a breach of LAW CARDINAL of the LAW and there was no indication that at that point in time the facts alleged by him fell within its purview . Noting that the applicant had been exempted from paying the court fee up front , the court , acting in pursuance of section ORG ) of ORG of DATE ( see paragraph CARDINAL below ) , ordered him to pay BGN CARDINAL in fees .","Upon the appeal of the applicant , on DATE ORG affirmed with almost identical reasoning .","The applicant appealed on points of law to ORG . In a final judgment of DATE that court fully quashed the lower courts ' judgments and awarded the applicant ORG CARDINAL ( CARDINAL,CARDINAL.CARDINAL MONEY ( ORG ) ) , plus interest as from DATE , the date of the filing of the action . It also ordered the defendants to pay the applicant 's legal costs , amounting to ORG CARDINAL ( EUR CARDINAL ) . The court described in some detail the unfolding of the criminal proceedings against the applicant and his pre - trial detention , and found that the applicant 's reliance on the provisions of the ORG was wellfounded . It stated that the length of the pre - trial detention had breached the law . It also found that at the material time and until DATE NORP law did not set any timelimits for finishing the pre - trial phase of criminal proceedings . The provision that controlled this was therefore LAW , which was part of domestic law . The period DATE throughout which the criminal charges against the applicant had not been determined and during which the applicant could not use any mechanism to speed up the proceedings \u2013 was significant and exceeded the reasonable time for examining the case . In such situations , where national law did not provide a possibility to vindicate infringed rights , they could be vindicated under international treaties which had been ratified by GPE and had become part of its domestic law . For instance , LAW , thus applicable , required an effective remedy against any alleged violation of that Convention . The inaction of the investigation and the prosecution authorities and the courts had infringed the applicant 's right to a trial within a reasonable time and had caused him nonpecuniary damage . Taking into account that the applicant had sustained non - pecuniary damage on account of a pre - trial detention exceeding the time - limit provided by law and the failure to bring the criminal proceedings against him to an end DATE , and ruling in equity , the court considered that the damage could be made good by an award of ORG CARDINAL . It did not order the applicant to pay any court fees or costs for the remainder of his claim .","By DATE ) , ( CARDINAL ) and ( CARDINAL ) of LAW of DATE , as worded at the time when the applicant was arrested and charged , premeditated murder committed in a particularly atrocious fashion and for gain was punishable by DATE imprisonment or death . In DATE life imprisonment also became CARDINAL of the possible penalties . In DATE the death penalty was abolished and replaced by life imprisonment , with or without parole .","Paragraphs CARDINAL and CARDINAL of LAW ORG , as worded at the relevant time and until DATE , provided as follows :","\u201c CARDINAL . Detention pending trial shall be ordered [ in cases where the charges concern ] an offence punishable by DATE imprisonment or death .","NORP In the cases under the preceding paragraph [ detention pending trial ] shall not be imposed if there is no danger of the accused evading justice or committing further offences . \u201d","DATE these provisions provided :","\u201c CARDINAL . Detention pending trial shall be ordered [ in cases where the charges concern ] a serious intentional offence .","NORP In cases falling under paragraph CARDINAL [ detention pending trial ] may be dispensed with if there is no danger of the accused 's absconding , obstructing the investigation , or committing further offences . \u201d","DATE . At the relevant time LAW of DATE defined a \u201c serious \u201d offence as one punishable by DATE imprisonment , life imprisonment , or death .","The former ORG prevailing practice at the material time was to construe LAW ORG as requiring that a person charged with a serious intentional offence be remanded in custody . An exception was only possible , in accordance with paragraph CARDINAL thereof , where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded , for example , if the accused was seriously ill , elderly , or already detained on other grounds , such as serving a sentence ( \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u043f\u043e ORG \u2116 CARDINAL \u0433. \u043d\u0430 \u0412\u0421 NORP \u043d.\u043e. ; \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e ORG \u2116 CARDINAL \u0433. \u043d\u0430 \u0412\u0421 NORP \u043d.\u043e. ; \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u043d.\u0434. CARDINAL\/CARDINAL \u0433. ) .","Paragraph CARDINAL of LAW ORG , as in force between DATE and DATE , provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused , or where he or she was a repeat offender .","Accused whose release on bail had been ordered have to remain in detention until they deposit the requisite amount ( LAW of the ORG ) .","On the basis of the relevant law before DATE and ORG practice outlined above , when ruling on the applications for release of persons charged with a \u201c serious \u201d offence , the domestic courts generally disregarded facts and arguments concerning the reasonable suspicion against them and the existence of a risk of their absconding or committing other offences . In their view , every person accused of a such an offence had to be remanded in custody unless exceptional circumstances dictated otherwise ( see ORG decisions cited above and the decisions of the domestic authorities criticised by the ORG in , inter alia , the cases of ORG v. GPE [ ORG ] , no . ORG , ORG CARDINAL-II ; PERSON v. GPE , no . CARDINAL\/CARDINAL , DATE ; and PERSON GPE , no . PERSON , DATE ) .","At the relevant time the firstinstance court 's decision pursuant to an application for release was not subject to appeal ( LAW of the ORG , as in force between DATE and DATE ) .","New Article CARDINALb \u00a7 CARDINAL of the ORG , in force since DATE , as well as LAW of LAW , which superseded it on DATE , provide that persons who remain in custody because they are unable to post bail are entitled to judicial review of their detention . In a binding interpretative decision of DATE ORG , construing the provisions of the ORG relating to pretrial detention , as amended on DATE , stated , inter alia , that in examining applications for release from pretrial detention the courts had to review , among other things , the lawfulness of detention resulting from the accused 's failure to post bail ( \u0442\u044a\u043b\u043a\u0443\u0432\u0430\u0442\u0435\u043b\u043d\u043e \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e ORG CARDINAL\/CARDINAL \u0433. , ORG \u043d\u0430 ORG ) .","Section CARDINAL of ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 , \u043f\u0440\u0438\u0447\u0438\u043d\u0435\u043d\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 \u201c ) , as in force at the relevant time , read as follows :","\u201c The ORG shall be liable for the damage suffered by individuals as a result of unlawful decisions , actions or omissions by its organs and officials , committed in the course of or in connection with the performance of administrative action . \u201d","Section CARDINAL of the Act , which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts , provides , as relevant :","\u201c The ORG shall be liable for damage caused to individuals by the organs of ... the investigation , the prosecution , the courts ... for unlawful :","NORP pretrial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds ;","NORP accusation of a crime , if the accused has been acquitted ... \u201d","In a binding interpretative decision of DATE ( \u0442\u044a\u043b\u043a\u0443\u0432\u0430\u0442\u0435\u043b\u043d\u043e \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 CARDINAL \u0433. , ORG \u043d\u0430 \u0412\u041a\u0421 ) ORG held , inter alia , that where the accused has been acquitted , the ORG is liable not only for the bringing of criminal charges , as specified by section CARDINAL(CARDINAL ) of the LAW , but also for the pretrial detention imposed during the proceedings . The compensation for nonpecuniary damage should encompass the damage suffered on account of both , whereas the compensation for pecuniary damage should be assessed separately . In previous judgments ( \u0440\u0435\u0448. \u2116 CARDINAL\/CARDINAL \u0433. \u043e\u0442 DATE \u0433. \u043f\u043e PERSON \u2116 CARDINAL \u0433. \u043d\u0430 ORG ) ORG has awarded compensation in such circumstances under section CARDINAL(CARDINAL ) of the LAW . The view taken appears to have been that in such cases the acquittal retroactively had rendered the pretrial detention unlawful .","By section ORG ) of the LAW , no court fees or costs are payable by plaintiffs upon the filing of actions under it , but in case the actions are eventually fully or partly dismissed , the court orders them to pay \u201c the court fees and costs due \u201d . The courts have construed this provision as meaning that the plaintiff should pay court fees and costs pro rata the dismissed part of his claims .","The ORG visited GPE in DATE and DATE . While it did not inspect ORG detention facility and FAC , both of its reports include general observations about all ORG detention facilities , and its DATE report includes observations on the high incidence of tuberculosis infections in the prisons during DATE .","In this report ( ORG ( CARDINAL ) CARDINAL ) the ORG found that most , even if not all , of ORG detention facilities were overcrowded . With the exception of CARDINAL facility where conditions were better , they were as follows : detainees slept on mattresses on sleeping platforms on the floor ; hygiene was poor and blankets and pillows were dirty ; cells did not have access to natural light ; the artificial lighting was too weak to read by and was left on permanently ; ventilation systems were in poor condition ; detainees could use a toilet and washbasin twice a day ( TIME and TIME ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in a bucket kept in the cell ; although according to the internal regulations detainees were entitled to a \u201c DATE walk \u201d of TIME , it was often reduced to TIME or not allowed at all ; no other form of outofcell activity was provided to the inmates .","The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's \u201c hot meal \u201d generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or halva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery \u2013 not even a spoon was provided .","The ORG also noted that family visits were only possible with a permission . As a result the detainees ' contact with the outside world was very limited . There was no radio or television .","The ORG concluded that the NORP authorities had failed in their duty to provide detention conditions consistent with the inherent dignity of the human person and that \u201c almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading . \u201d In reaction , the NORP authorities agreed that the ORG 's assessment was \u201c objective and correctly presented \u201d , but indicated that the possibilities for improvement were limited by the country 's difficult financial circumstances .","In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc . ) , that custodial staff be instructed to allow detainees to leave their cells during DATE to use a toilet facility , unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully complied with , that cell lighting and ventilation be improved , and that pretrial detainees be as much as possible transferred to prison even before the preliminary investigation was completed . The need to afford detainees the opportunity for outdoor exercise was to be examined as a matter of urgency .","In this report ( ORG ( DATE ) CARDINAL ) the ORG noted that new rules , providing for better conditions , had been enacted , but had not yet resulted in significant improvements .","In most places visited in DATE , the conditions of detention on ORG premises remained generally the same as those found during the ORG 's DATE visit , including as regards hygiene , overcrowding and outofcell activities . In some places the situation had even worsened .","DATE . The ORG also observed that in DATE there had been an increase in the incidence of tuberculosis cases in the NORP prison system . It found that although certain efforts had been made to combat this disease , the steps taken by the authorities to ensure the medical screening of prisoners did not measure up to the relevant international standards . The ORG recommended that the authorities increase their efforts to implement these standards in the field of tuberculosis control ( in particular , provide appropriate training and instructions to the prison doctors ) . During its visit to FAC the ORG found that the conditions ( in particular , the overcrowding and the poor lighting and ventilation ) in the cells accommodating inmates suffering from tuberculosis , coupled with the limited possibilities for outdoor exercise , were conducive to the spread of the disease . Accordingly , it recommended that the authorities reduce the occupancy levels in these cells , improve access to natural light and ventilation , and enable the prisoners to maintain a level of personal hygiene consistent with the requirements of their state of health ."],"violated_articles":["3","5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3","5-5"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101542","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2010,"docname":"ULYANOV v. UKRAINE","importance":3,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr Ruslan Anatoliyovych Ulyanov , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr Y. GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant , a lawyer by profession , entered into a legal services agreement with a company , ORG Under that agreement PERSON transferred to the applicant certain bookkeeping documents relating to an ongoing tax dispute with ORG ( \u201c the Tax Office \u201d ) .","On an unspecified date ORG investigator instituted criminal proceedings against the managing directors of PERSON for engaging in prohibited commercial activity and forging official documents . An expert bookkeeping examination was ordered in the case .","On DATE , following a request by the investigator , ORG of PERSON ( the \u201c ORG \u201d ) ordered the seizure of PERSON 's bookkeeping documents , which had been transferred to the applicant , from the applicant 's home and other property . In its reasoning ORG noted that the applicant had refused the investigator 's request to produce the documents he had received from PERSON despite the fact that they were needed for an expert examination in the course of criminal proceedings against ORG 's managing directors .","At TIME on the same day police officers from ORG , some wearing masks , entered the applicant 's office during a meeting with clients . Referring to the court order for seizure , the officers requested PERSON 's documents . The applicant refused to produce the documents , arguing that they were privileged under LAW . The applicant was then ordered to stand up and face the wall , following which a masked officer searched him . He was then ordered to empty his pockets .","At TIME the applicant was taken from his office , placed in the police car and driven to ORG . According to the applicant , he was forced to leave his office because of his refusal to produce the documents . According to the Government , the applicant agreed to follow the officers of his own free will .","At TIME , after an interview with the head of ORG , the applicant was driven back to his office .","On DATE , at the investigator 's request , ORG ordered a search of the applicant 's home and other property , noting that on DATE he had refused to produce documents pursuant to the previous court order for seizure .","That night the tax officers searched the applicant 's office , car and home but failed to find PERSON 's documents .","On DATE the applicant lodged a complaint under Article CARDINAL - CARDINAL of the Code of Civil Procedure ( the \u201c CCvP \u201d ) , claiming that the officers from ORG who had tried to seize the documents in his office on DATE had acted in contravention of LAW . He further claimed that the masked officer had unlawfully ordered him to face the wall , searched him and requested him to empty his pockets . Lastly , the applicant argued that the officers had detained him unlawfully for TIME .","On DATE ORG partly upheld the applicant 's complaint of DATE against ORG , finding that the tax police officers had unlawfully tried to seize documents from the applicant which had been entrusted to him in the course of his professional activities , and that the masked officer had acted unlawfully in ordering the applicant to face the wall , searching him and requesting him to empty his pockets . ORG further established that the applicant had been detained between TIME and TIME on DATE , but declined to declare that detention unlawful as the applicant had failed to provide any evidence in that regard .","On DATE the NORP Regional Court of Appeal ( \u201c the Court of Appeal \u201d ) considered the appeal by ORG . Referring to the exceptions to the jurisdiction of the courts listed in LAW stated that the applicant 's complaint could not be considered in the course of that type of judicial proceedings . It therefore quashed the judgment of DATE and discontinued the proceedings in that case .","On DATE the applicant lodged an appeal in cassation against the decision of DATE .","On DATE ORG rejected the applicant 's appeal in cassation . The applicant did not provide a copy of that decision .","On DATE , relying on Article CARDINAL of the CCvP , the applicant lodged CARDINAL complaints with ORG requesting it to annul the court orders of DATE authorising the search and seizure operations . He claimed that both orders were unlawful as they had been made in breach of the guarantees provided by LAW .","On DATE ORG rejected the complaints as inadmissible . It relied on LAW , under which the courts did not have jurisdiction for dealing with such complaints .","On DATE ORG upheld the decisions of ORG of DATE .","On DATE ORG rejected an appeal in cassation by the applicant against the lower courts ' decisions in respect of his complaint against the search order .","On DATE ORG rejected an appeal in cassation by the applicant against the lower courts ' decisions in respect of his complaint against the seizure order .","LAW provides , inter alia , that the acts and decisions of a body of inquiry can be challenged before a court . The relevant complaints shall be considered by the court during the preliminary hearing or the trial unless another procedure established by this Code applies .","Article CARDINAL of the LAW provides , inter alia , that a search of a person 's home and other property may be conducted only pursuant to a reasoned court order , except in emergencies . If a search is needed , the investigator lodges a request , approved by a prosecutor , with the court located in the district where the investigation is being carried out . A judge is required immediately to examine the request in the light of the case file , and , if necessary , to hear submissions from the investigator and the prosecutor , following which he may authorise the search request or reject it . A court order authorising the search is not subject to appeal . A refusal by the court to allow a search may be appealed against by the prosecutor within DATE .","Article CARDINAL of the PERSON provides , inter alia , that the seizure of documents and other items relating to criminal proceedings found in a person 's home or other property may be effected only on the basis of a reasoned court order made in accordance with the procedure laid down in LAW .","Article CARDINAL - CARDINAL of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision , act or omission of a ORG body , legal entity or official could lodge a complaint with a court .","Article QUANTITY provided that such complaints were outside the courts ' jurisdiction if they concerned a decision , act or omission by an official of a body of inquiry , pre - trial investigation authority , prosecutor 's office or court which could be challenged by a different procedure .","In accordance with LAW , if such a complaint concerned a dispute that had to be resolved in civil adversarial proceedings , the court had to decline to examine the complaint and explain to the claimant that he was entitled to lodge a civil claim .","In this decision , ORG declared Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions , acts or omissions by officials of bodies of inquiry , pre - trial investigation authorities or prosecutor 's offices in cases where the legislation provided only for a non - judicial remedy . It further found that that Article did give the courts jurisdiction to hear complaints concerning the decisions , acts or omissions of court officials if those decisions , acts or omissions were confined to the performance of administrative functions .","The relevant provisions of the LAW have been summarised in the judgment of PERSON v. GPE ( no . CARDINAL , \u00a7 CARDINAL , DATE ) .","Section CARDINAL of the LAW provides that documents relating to an advocate 's professional activity may not be examined , divulged or seized without the advocate 's consent ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98926","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF DUZDEM\u0130R AND GUNER v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants were born in DATE and DATE respectively and lived in ORG .","On DATE the applicants were laid off by ORG ( \u201c the Municipality \u201d ) , with which they had been temporarily employed .","The applicants subsequently brought separate actions before ORG against the GPE , claiming outstanding salaries , dismissal indemnities , severance pay and other pecuniary rights .","On DATE and DATE , respectively , the labour court granted the applicants ' request and ordered the payment of MONEY ( TRL ) to the first applicant and GPE CARDINAL to the second applicant , together with interest . In the absence of an appeal , these judgments became final on DATE and CARDINAL DATE , respectively .","At the date of introduction of the applications , the judgment debts were still outstanding . However , in the meantime , friendly settlement agreements were reached between the applicants and the Municipality on DATE and DATE , respectively , and the relevant payments were made to the applicants .","The relevant domestic law and practice in force at the material time are outlined in GPE and Others v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-120970","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2013,"docname":"CASE OF TURLUYEVA v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Non-pecuniary damage - award","judges":"Dmitry Dedov;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["The applicant was born in DATE and lives in GPE , GPE , GPE .","The applicant is a widow , whose husband died in DATE . She lived with her son , ORG , born in DATE , who at the relevant time was in DATE of studies at ORG . The applicant also has a daughter . The family lived in the village of GPE , GPE , GPE . Their household at QUANTITY ( previously ORG ) Street consisted of CARDINAL houses sharing a common courtyard . CARDINAL house belonged to the applicant and her children , and the other CARDINAL to her husband \u2019s brothers . According to the applicant , CARDINAL of them had left GPE with his family and in DATE that house was uninhabited .","On DATE the applicant was in PERSON . At TIME on DATE she received a phone call from a relative , who told her that a special operation was taking place at their household and that soldiers were going to burn the house down . The applicant called her son , who was in PERSON , and told him not to come home but to stay at his uncle \u2019s place .","In the meantime , the applicant and her brother - in - law PERSON went to PERSON by car . As soon as they arrived the car was surrounded by armed men in military uniforms , who they understood to be servicemen of ORG . The servicemen showed them a body and told them that this man had been hiding in their household since DATE , in the attic of PERSON house . The body was that of a young man , aged DATE , with long hair . His shirt was pulled up to the neck and his hands were raised behind the head ; there was one wound in the heart area . PERSON NORP then went to see his paralysed mother , who had been taken to the neighbours .","Police officers then took the applicant and her brother - in - law to the Urus - Martan district department of the interior ( \u201c the ROVD \u201d ) and questioned them . Both denied all knowledge of ORG presence in the attic of a house situated in their household .","The applicant and her brother - in - law were released at TIME that day . They returned to PERSON and found that their houses had been burned down . Firefighters told them that the houses had been set on fire deliberately . Then the applicant \u2019s brother - in - law returned to ORG .","PERSON daughter PERSON later told her father that ORG had come to their home in Grozny at TIME that day . Soon afterwards he had called a taxi and left , heading towards the city centre . PERSON told her father that a group of armed men had arrived at their house almost as soon as the applicant \u2019s son had left and demanded that she tell them where he had gone or take them there . As PERSON did not know where he had gone , they left .","At TIME on DATE PERSON received a call from the head of ORG , who requested that he return to that office . When he arrived there CARDINAL soldiers took him to PERSON in their car . He was taken to the office of Mr PERSON , head of the external guards regiment of ORG GPE ( \u043f\u043e\u043b\u043a \u043c\u0438\u043b\u0438\u0446\u0438\u0438 LOC \u043e\u0445\u0440\u0430\u043d\u044b ORG ) , also known as the \u201c oil regiment \u201d , as one of their main tasks was to secure oil pipes and installations .","PERSON was taken into a room where there were CARDINAL members of the police force who had participated in the operation in GPE DATE . They told PERSON that QUANTITY police officers had been wounded and one had been killed . PERSON denied that any members of illegal groups had ever lived in their household , and stressed that the house in question was uninhabited . He was given to understand that the \u201c blood feud \u201d for the police officer who had been killed would fall on him and his family .","After TIME another soldier brought ORG into the room . PERSON saw signs of beatings on his nephew \u2019s face : his right cheek was discoloured , there was blood in the right corner of his mouth and nose , and he had difficulty standing up without assistance . He also remarked that his nephew was shaking , looked frightened and spoke fast , without looking at anyone . The policemen told them that ORG could save his life by cooperating ; otherwise they would kill him in retribution for the death of their colleague . PERSON was allowed to talk to his nephew . The latter admitted that he had maintained contacts with members of illegal armed groups through the Internet and his mobile phone and promised that he would cooperate with the police . PERSON pleaded with him to do anything to save his life .","Soon after midnight PERSON and his son PERSON , who had also been brought to the regiment \u2019s headquarters , were released . The family had no news of ORG after that date .","In support of her submissions the applicant presented written statements drawn up by her and by her brother - in - law , PERSON , in DATE and DATE .","The special operation in LOC on DATE was officially reported by ORG GPE as follows :","\u201c DATE","Policeman killed saving elderly woman","CARDINAL illegal fighters were killed in PERSON in the Urus - Martan district as a result of a special operation .","\u2018 \u201c The operation aimed at locating and exterminating members of illegal armed groups has just been completed . It took place in FAC , where members of illegal armed groups had been spotted in CARDINAL of the houses,\u2019 stated the GPE Minister of the Interior Mr PERSON .","CARDINAL of the fighters was identified as PERSON from GPE district . The Minister also said that a member of the police force had been killed while saving an elderly woman from a house seized by terrorists there . \u2018 Unfortunately , CARDINAL of our comrades died . He was a member of the external guards\u2019 regiment of ORG . CARDINAL other policemen were GPE said Mr PERSON . He stressed that the officers had received injuries while trying to save the life of an CARDINAL-year - old woman . They evacuated her through the window and were shot at by the bandits . CARDINAL police officer lost his life . The operation was carried out by ORG of the internal troops of ORG , ORG ( \u201c the ORG \u201d ) and the external guards regiment of ORG GPE under the command of Lieutenant - Colonel of ORG PERSON . \u201d","The Government , in a memorandum of CARDINAL DATE , acknowledged the basic facts as submitted by the applicant . They confirmed that a special operation had been carried out in GPE , in FAC , on DATE , during which CARDINAL soldier of the external guards regiment had been killed and CARDINAL others wounded . CARDINAL members of illegal armed groups had been killed and a third had escaped . As a result of this conflict , the houses at CARDINAL FAC had burned down . In connection with this incident , at TIME on DATE the servicemen of the external guards regiment had taken ORG to the regiment \u2019s headquarters in ORG . He had an oral exchange about these events in room CARDINAL of the building and was released at TIME on DATE .","In DATE immediately following DATE the applicant expected to be informed about the whereabouts of her son , and did not apply to any authorities . On DATE she and her brother - in - law PERSON NORP were called to the office of ORG . The applicant submitted that the investigator had asked them about the events of DATE . However , the investigator had refused to note PERSON statements about the meeting at Mr PERSON \u2019s office . According to the applicant , the investigator told them that if they wanted to pursue complaints against the \u201c oil regiment \u201d , they would be forced to change their statements . The applicant and PERSON did not insist on noting their statements .","NORP The applicant submitted that she continued to seek information about her son from various officials .","On DATE she submitted a complaint to ORG at ORG in ORG district ( hereinafter \u201c the district investigating committee \u201d ) . She described the events of DATE and asked to be informed about the whereabouts of her son . She also asked for him to be allowed to meet with a lawyer and to be given medical assistance if needed .","Upon this written application , the district investigating committee initiated a check , under Articles CARDINAL - CARDINAL of FAC . By DATE the investigator in charge of the case had collected personal information about ORG from the local village administration , and requested all the district and regional police and investigating departments in GPE to check whether they had any information about the young man . The letters mentioned that on DATE he had been delivered by unidentified police officers to the headquarters of the external guards\u2019 regiment of ORG GPE and that there had been no news of him after that .","On DATE an investigator took a statement from PERSON The latter explained that he had come to PERSON on DATE at the applicant \u2019s request ; that he had seen a large group of ORG soldiers and the body of a young man with long hair ; that his paralysed mother had been taken to the neighbours ; that he and the applicant had been taken to ORG for questioning ; that they had been released on DATE and had seen their houses in GPE burned down ; that he had been called TIME to return to ORG and that from there he had been brought back to PERSON , to the \u201c oil regiment \u201d headquarters in FAC . The witness then went on to describe in detail the interior of the building and the office where he had been questioned , and where he had last seen ORG . He recognised Mr PERSON among the soldiers . He also stated that his nephew had been questioned by a soldier called PERSON , who had earlier told him that he was the commander of the sixth platoon of the regiment and was a native of GPE . Valid showed a mobile phone to ORG and showed him something on the phone , asking whether he knew these people , to which ORG gave a positive answer . Valid told ORG that they had been following him for DATE . He also asked him where he had met these people , to which the PERSON nephew responded \u201c In a chat room \u201d . PERSON stressed that his nephew had looked scared and had signs of beatings on his face . The nephew also stated that the police officers had told him that they would pursue him for the death of their colleague and that he felt threatened and had asked for protection . PERSON had not seen his nephew after that .","On DATE the investigator took a statement from the applicant . She gave similar statements about the events of CARDINAL DATE ; she also stated that the house where she lived had burnt down and she and her family ( herself , her daughter and her son ) had lost their property , including gold jewellery , and documents . The applicant submitted that she had had no news of her son since DATE , and gave the police CARDINAL ORG phone numbers used by her son .","On DATE the same investigator wrote down explanations submitted by PERSON , ORG girlfriend , who lived with him at his house . She was an eyewitness to the events of CARDINAL DATE . She stated that at TIME a group of armed servicemen had arrived at their house and searched part of the household . There was an exchange of fire in the courtyard and she had asked police officers who were there to take \u201c granny \u201d out of the house , which they did , bringing her out through the window on a mattress . She thought that the house had been set on fire by the police officers . She had not seen ORG Ibragomov after DATE and had no news of his whereabouts .","On DATE the investigator of ORG district investigating committee asked the ROVD to take action to find out ORG whereabouts , in particular to obtain information from the ORG operator about his movements and calls received since DATE and to find and question the driver of the bus which took the students of ORG to and from classes .","DATE the investigator sought information about ORG from the management of ORG , from ORG department of GPE , from ORG , and from a number of other lawenforcement bodies . In particular , on DATE the investigator requested the commander of the external guards regiment to identify and send for questioning the servicemen who had been on duty on TIME CARDINAL to DATE and to send a copy of the regiment \u2019s registration log to the district investigating committee .","On DATE the ORG informed the investigator that ORG had not attended classes since DATE . CARDINAL of his classmates and a professor confirmed that they had not seen him at the ORG since DATE ; a copy of the class record was acquired .","On DATE the investigator , together with PERSON and the applicant \u2019s representative from ORG , inspected the headquarters of the \u201c oil regiment \u201d in ORG . PERSON showed the office where he had last seen his nephew , at TIME on DATE , and specified that CARDINAL police officers had been there at the time , including Mr PERSON .","On DATE the district investigating committee ruled that criminal proceedings would not be opened . It concluded that there was no reason to suspect that murder had been committed , and that therefore there was no evidence of a crime . On DATE the applicant \u2019s representative was forwarded a copy of the decision and informed of the appeal procedure .","It appears that the applicant complained about the above decision . As a result , the documents collected during the investigation were sent to the GPE district investigating committee in ORG , the location of the headquarters of the \u201c oil regiment \u201d . On DATE that office opened criminal investigation file DATE in respect of a suspected murder ( Article CARDINAL of LAW ) . The document considered it established that on DATE ORG had been taken to the headquarters of the regiment by unidentified servicemen of ORG . There he was questioned orally in room CARDINAL about the incident which had occurred earlier that day in LOC . ORG was released and left the premises of the regiment at TIME on DATE . His whereabouts remained unknown . On DATE the applicant was informed about this development .","On DATE the investigator responsible for the case drew up a detailed plan of the necessary actions which should be taken .","On DATE the applicant was granted the status of victim in the proceedings .","On DATE the applicant was questioned as a victim of the crime . On DATE PERSON was questioned . They reiterated their previous statements and stated that their jewellery had disappeared after the special operation .","On DATE PERSON was questioned as a witness . He gave detailed submissions about the events of DATE , in line with his statement of CARDINAL DATE ( see paragraph CARDINAL above ) . He described in detail the encounter with PERSON , PERSON and CARDINAL servicemen of the regiment at its headquarters on TIME CARDINAL DATE . The witness stressed that the police officers had referred to a blood feud which would DATE fall on his family , in retribution for the death of their colleague in his house . He then described how PERSON had led ORG into and out of the room by holding him by the neck from behind and forcing him to bend forward . The witness described the signs of beatings and blood on his nephew \u2019s face , the fact that he was frightened and was shaking , and that he spoke fast and without looking at anyone . His nephew had admitted that he had maintained contacts with illegal fighters by \u201c Internet chat \u201d . After that admission Mr PERSON had said that \u201c we shall kill this dog and avenge our colleague \u201d , but that he could be spared if he cooperated . PERSON then pleaded with ORG to do so to save his life . His nephew said that he could establish contact with illegal fighters on the Internet , but only during the daytime . After that , at TIME on DATE , the witness was released from the regiment headquarters and returned home . He had not seen his nephew after that .","PERSON described the threats directed at him and his son PERSON . He stated that in DATE [ DATE ] he had been invited , under threat , to talk to Mr PERSON , who had told him that he had DATE to prove that he had seen ORG at Mr PERSON \u2019s office . Then , at TIME on DATE , a group of CARDINAL armed men wearing black uniforms and masks burst into his house looking for his son ORG . After that PERSON left GPE , and the witness was not prepared to disclose his place of residence , out of fear for his life .","At some point the investigation found out that the headquarters of the \u201c oil regiment \u201d was equipped with ORG cameras , but that their contents were erased within DATE .","In DATE the investigation sought to establish a complete list of servicemen from various security and police detachments who had taken part in the operation on DATE .","NORP On various dates during DATE the investigators questioned a number of police officers from the external guards regiment and from the UrusMartan ROVD who had taken part in the special operation in question and who had been present at the offices when the applicant and her relatives had been there .","The servicemen from ORG ROVD confirmed that they had taken part in the operation , and also that CARDINAL suspects had been killed and that there had been police casualties . They also confirmed that the applicant \u2019s house had been burned down . They were not aware that the applicant and her brother - in - law had been questioned at the ROVD .","Mr PERSON was questioned as a witness on DATE . He confirmed that after the operation of CARDINAL DATE he had orally instructed his subordinates to bring ORG , his uncle and cousin to the regiment \u2019s headquarters . During a conversation ORG had confirmed that he had information about members of illegal armed groups , and promised to cooperate . He also promised to return in order to submit further information . He and his relatives had then left the regiment \u2019s headquarters . Since that date neither ORG nor his relatives had been to the regiment \u2019s headquarters .","Another serviceman of the regiment , Valid A. , on DATE gave similar statements about the CARDINAL men being brought to the regiment headquarters at TIME on DATE , the ensuing discussion and the fact that they had left the premises .","Several other servicemen of the external guards regiment were also questioned . Some of them denied any knowledge that ORG or his relatives had been to the regiment \u2019s headquarters in TIME of DATE . However , CARDINAL serviceman , PERSON , who had been on duty on the night in question , stated on DATE and again on DATE , that ORG \u201c had come to see the commander of the regiment \u201d . Soon afterwards , CARDINAL other men \u2013 PERSON and his son PERSON also arrived to meet Mr PERSON . TIME the CARDINAL men had left . No records were made of their visit or questioning . Another serviceman of the regiment , PERSON , stated on DATE , referring to PERSON , that ORG and his relatives \u201c have been invited to see PERSON at TIME on DATE \u201d .","It appears from the exchange of letters between ORG and ORG that the investigation on several occasions tried to secure further participation of Mr PERSON and CARDINAL other high - ranking servicemen of ORG in the investigation , by means such as questioning and confrontation with other witnesses . On DATE the investigator in charge of the case wrote a report to his superior , the head of the second serious crimes department of ORG . He described his attempts to obtain a confrontation between PERSON and Mr PERSON . The investigator wrote that he had finally been invited to Mr PERSON \u2019s office , where the latter first refused to participate in the confrontation due to his heavy workload , and then insisted that the confrontation should take place immediately and in his office . The investigator \u2019s attempts to arrange for a confrontation within a reasonable time and on the premises of ORG have been unsuccessful .","From the subsequent documents it follows that on DATE the investigator terminated his work with ORG and the file was transferred to another investigator .","At TIME on DATE investigators of the LOC district department of the investigating committee examined the buildings at FAC . They described CARDINAL male bodies , CARDINAL machine guns , CARDINAL improvised explosive devices , and a number of new and empty ammunition cartridges . They also noted the effects of fire in the houses and outbuildings . Both bodies bore gunshot wounds . An additional inspection of the site took place on DATE .","On DATE ORG district department of the investigating committee opened a separate criminal investigation of the events of DATE , on suspicion of violence directed at state officials , membership of an illegal armed group , wilful damage to property and unlawful handling of arms and explosives . A number of police officers who had taken part in the operation were questioned . Firefighters who had attended the scene were also questioned . It does not appear that the cause of the fire at the applicant \u2019s address has been established .","It appears that this investigation , directed at unknown persons , is still pending .","In response to the ORG \u2019s request , the ORG submitted a complete copy of the criminal investigation file no . DATE ( CARDINAL volumes , CARDINAL pages ) . The investigation was adjourned on CARDINAL occasion and reopened . In the latest documents the investigator summarised the findings as follows ( the passage quoted below is taken from the decision of CARDINAL DATE to extend the term for investigation ) :","\u201c On DATE a special operation aimed at discovering members of illegal armed groups was carried out at QUANTITY . The operation was carried out jointly by servicemen from [ CARDINAL different units of ORG , including the external guards regiment ] , [ ORG of ORG ( ORG ) ] and servicemen of ORG . In the course of the operation unidentified servicemen of ORG detained [ the applicant ] and [ PERSON ] . At TIME on DATE ORG arrived voluntarily at the headquarters of the [ external guards regiment ] situated in Grozny at the following address ... where he was orally questioned in room CARDINAL about the incident which had taken place on DATE ... At TIME on DATE S .- S. Ibragimov left the headquarters of the [ regiment ] and his whereabouts remain unknown \u201d .","In addition to the measures described above , the investigation has sent out CARDINAL of requests to various law - enforcement bodies , detention centres , hospitals and travel agencies , but has not received any additional relevant information about the whereabouts of ORG .","It appears that by DATE the investigation was still pending , without any tangible results as to the fate of the applicant \u2019s son . CARDINAL has been charged with any crime .","The applicant submitted that on DATE PERSON had been invited to meet with the commander of the \u201c oil regiment \u201d , Mr PERSON . PERSON and his representative went to Mr PERSON \u2019s home , situated next to the regiment \u2019s headquarters . PERSON claimed that he had covertly made an audio recording of the conversation , which was partly in NORP and partly in NORP ; a copy of that recording has been submitted to the ORG by the applicant . According to the applicant , PERSON PERSON told PERSON that as the oldest man in the house he was to be held responsible for what had happened there . Accordingly , the blood feud resulting from the death of the policeman should fall on him . Mr PERSON alleged that he had protected PERSON from revenge attacks by other servicemen , but now since he had accused Mr PERSON of the torture and murder of his nephew , he would no longer do so . Mr PERSON also stated that he could obtain plenty of statements which would show that ORG was released from the headquarters of the regiment . He suggested that ORG had \u201c gone to the forest \u201d to fight , and that his family had staged the story of kidnapping .","The applicant submitted further that on DATE a group of armed men had burst into PERSON house and searched it , without presenting any documents or identifying themselves . The applicant submitted that her brother - in - law had complained to the ORG office about this incident , but did not present any documents .","On DATE CARDINAL lawyers of ORG involved in representing the applicant and other individuals complaining of human rights violations in GPE were detained overnight by officers of ORG of the ORG . On DATE the ORG issued a public statement denouncing the detention as unlawful , and referred to previous instances of pressure on the applicant and her relative .","Articles DATE , DATE and DATE of the LAW provide that everyone has the right to life and the right to liberty and personal security , which are guaranteed and protected by the ORG . No one shall be subjected to cruel or degrading treatment or punishment .","Articles DATE and CARDINAL of the LAW guarantee judicial protection of rights under LAW .","Articles DATE and CARDINAL of the LAW protect the rights of victims of crimes . The ORG guarantees victims access to justice and compensation for damage . Everyone is entitled to compensation for damage caused by unlawful actions of ORG officials .","Articles CARDINAL and CARDINAL of LAW Criminal Code stipulate that kidnapping and unlawful deprivation of liberty , respectively , are crimes punishable by CARDINAL and DATE of imprisonment respectively . Article CARDINAL provides that murder is punishable by DATE imprisonment . Aggravated murder , for example if committed by an organised group , is punishable by prison terms , including life imprisonment , and by the death penalty .","Articles DATE and CARDINAL of the Code provide as follows :","Article CARDINAL . Obligation to prosecute","\u201c CARDINAL . Public prosecution in criminal cases ... shall be carried out on behalf of the ORG by a prosecutor , an investigator or an inquiry officer .","NORP In every instance in which evidence of a crime is observed , the prosecutor , investigator , inquiry agency , or inquiry officer shall take the actions specified by this Code to determine the facts of the crime that took place and to apprehend the persons guilty of committing the crime ... \u201d","Article CARDINAL . TIME Victims\u2019 right to take part in criminal prosecutions","\u201c The victim , his legal guardian and\/or designated representative shall have the right to take part in the criminal prosecution of the accused ... \u201d","Articles CARDINAL and CARDINAL of the Code provide as follows :","Article CARDINAL . Examination of complaints by a prosecutor or head of an investigating body","\u201c CARDINAL . A prosecutor or head of an investigating body shall examine a complaint within ... DATE of its receipt ... \u201d","Article CARDINAL . Judicial examination of complaints","\u201c CARDINAL . Decisions of an investigator or prosecutor to refuse to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the legality and grounds of the impugned decisions ...","NORP The court shall examine the legality and the grounds of the impugned decisions or acts ... within DATE of receipt of the complaint ...","Following examination of the complaint , the court shall deliver one of the following decisions :","( CARDINAL ) Declaring the decisions , acts or omissions of the official unlawful or unsubstantiated and obliging the official to eliminate any defects ;","( CARDINAL ) Not allowing the applicant \u2019s complaint ... \u201d","Articles CARDINAL and CARDINAL of the Code provide as follows :","Article CARDINAL . Grounds and bases for initiating a criminal case","\u201c CARDINAL . The following shall serve as grounds for initiating a criminal case :","a ) a complaint of a crime ... \u201d","Article CARDINAL . Criminal complaint","\u201c CARDINAL . A criminal complaint may be submitted in oral or written form . \u201d","Article CARDINAL . Procedure for reviewing a report of a crime","\u201c CARDINAL . An inquiry officer , inquiry agency , investigator , or prosecutor must accept and investigate every report of a crime ... and shall make a decision on that report ... DATE after the filing of the report ...","A prosecutor , head of an investigation unit or head of an inquiry agency ... may extend the time period specified by ( CARDINAL ) of this LAW to up to ten days ...","Any refusal to accept a report of a crime may be appealed against to the prosecutor or to a court in accordance with the procedures established by ORG CARDINAL and CARDINAL of this Code ...","Articles CARDINAL and CARDINAL of the Code provide as follows :","Article CARDINAL . Urgent investigative actions","\u201c CARDINAL . When there is evidence of a crime for which a preliminary investigation is required , an inquiry agency shall initiate a criminal case and take urgent investigative actions ... \u201d","Article CARDINAL . Mandatory review of official requests submitted","\u201c CARDINAL . An investigator or inquiry officer shall be obliged to review every official request filed in a criminal case ...","NORP Under this requirement ... a victim ... or their representatives may not be denied the opportunity to question witnesses or to have a forensic expert analysis or other investigative actions conducted ... \u201d","LAW provides that pecuniary and non - pecuniary damage caused , amongst other things , by unlawful actions of ORG officials should be compensated for in full .","According to document ORG \/ DH(CARDINAL)CARDINALE of CARDINAL DATE entitled \u201c Action of the security forces in GPE of GPE : general measures to comply with the judgments of ORG , a special unit has been set up within ORG in GPE to address the issues raised in the ORG \u2019s judgments . An information document submitted by ORG in DATE ( DH - DD(CARDINAL)CARDINALE ) stated that of CARDINAL cases discussed ( concerning the \u201c ORG group \u201d involving findings of violations of core rights in LOC ) , CARDINAL criminal cases have been concluded ( CARDINAL of which was terminated as a result of the suspect \u2019s death ) . The remainder were pending ; most of them have been suspended for failure to identify the suspects .","The relevant part of Interim Resolution CM \/ ORG of DATE on \u201c Execution of the judgments of ORG in CARDINAL cases against GPE concerning actions of the security forces in GPE of the GPE \u201d stated :","\u201c CARDINAL . General framework for domestic investigations carried out in cases which gave rise to a judgment of the ORG or to an application before the ORG","Considering the important changes introduced after the events described in the ORG \u2019s judgments in the general framework governing domestic investigations and in particular those conducted in cases which gave rise to a judgment of the ORG or an application before the ORG ; ...","Noting with interest the efforts reported by the NORP authorities with a view to remedying the shortcomings of the initial investigations , establishing the facts as well as the identities of those responsible , including servicemen and other representatives of federal forces who might have been involved in the events described in the judgments ; ...","Noting however with concern that despite the efforts made by ORG and by other competent authorities , DATE after the first judgments of the ORG , in the vast majority of cases , it has not yet been possible to achieve conclusive results and to identify and to ensure the accountability of those responsible , even in cases where key elements have been established with sufficient clarity in the course of domestic investigations , including evidence implicating particular servicemen or military units in the events ;","Underlining therefore the need to ensure that the investigating authorities make full and effective use of all means and powers at their disposal as well as to reflect on whether any other additional measures are still required , bearing in mind the difficulties inherent in investigations conducted into the consequences of a large - scale antiterrorist operation such as that at issue ;","Stressing in addition that the necessary action in this respect should be taken as a matter of priority since with the passage of time , the risk of loss of evidence increases and even if they are eventually identified , the prosecution of those responsible may become impossible given the expiry of the time - limits in the statutes of limitation ...","URGES the NORP authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the ORG \u2019s judgments are conducted , in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co - operation of all law - enforcement and military bodies in such investigations ;","STRONGLY URGES the NORP authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons ;","ENCOURAGES the NORP authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation ; ... \u201d","ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) issued CARDINAL public statements in relation to GPE DATE , deploring the absence of cooperation in the investigation of the alleged violations . The public statement of CARDINAL DATE conceded that \u201c the abductions ( forced disappearances ) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the GPE \u201d . In DATE the ORG , for the first time , published a report to ORG drawn up after its visit to the NORP region of GPE from DATE to CARDINAL DATE . The report focussed on the allegations of ill - treatment and reported allegations of unrecorded detentions and detentions in unlawful locations . It raised the problems of impunity of the law - enforcement personnel for such crimes and recommended to implement measures aimed at safeguarding the interests of the detainees as of first moments of detention , including proper record - keeping of detention , notification of relatives , access to a lawyer and to medical council , providing full information about their rights .","DATE . On DATE ORG Human Rights presented a report entitled \u201c Legal remedies for human rights violations in GPE \u201d . On the basis of that report , on DATE PACE adopted ORG no . DATE and Recommendation no . DATE deploring the absence of an effective investigation and prosecution of serious human rights violation in the region , including disappearances . They found that \u201c the suffering of the close relatives of CARDINAL of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace . \u201d Among other measures , the ORG called on the NORP authorities to :","\u201c CARDINAL.CARDINAL.CARDINAL . bring to trial in accordance with the law all culprits of human rights violations , including members of the security forces , and to clear up the many crimes which have gone unpunished ... ;","DATE . intensify co - operation with ORG in enforcing the judgments of ORG , especially where they concern reinforcement of the individual measures to clear up the cases of , in particular , abduction , murder and torture in which the ORG has ascertained a lack of proper investigation ;","be guided by the example of other countries which have had to contend with terrorism , particularly as regards the implementation of measures conducive to the ORG co - operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces , and to prevent further acts of violence ; ...","both ORG of ORG to devote their utmost attention to the situation in the LOC and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution , and to stipulate that the necessary measures be applied . \u201d","In Recommendation no . DATE , PACE advised ORG to :","\u201c CARDINAL . pay the utmost attention to the development of the human rights situation in the LOC ;","in enforcing the judgments of ORG ) concerning this region , emphasise the prompt and complete elucidation of the cases in which the ORG has ascertained an absence of effective investigation ; ... \u201d","In DATE ( DATE ) entitled \u201c Implementation of judgments of ORG , PACE considered deaths and illtreatment by law - enforcement officials and a lack of effective investigation thereof in GPE as one of the CARDINAL \u201c major systemic deficiencies which cause a large number of repetitive findings of violations of the ORG and which seriously undermine the rule of law in the states concerned \u201d .","A report dated DATE by PERSON , Commissioner for Human Rights of ORG , following his visit to GPE from DATE , found a number of positive developments aiming to improve DATE life in the GPE visited . Despite those positive steps , the Commissioner defined as some of the most serious issues counter - terrorism measures , abductions , disappearances and ill - treatment , combatting impunity and the situation of human rights defenders . The report included the Commissioner \u2019s observations and recommendations in relation to those topics .","NORP In particular , the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions , disappearances and ill - treatment of people deprived of their liberty in LOC . While the number of abductions and disappearances in GPE might have decreased recently compared with DATE , the situation remained far from normal . Referring to the far - reaching effects of disappearances on a society as a whole , he supported the proposal of ORG to create an interdepartmental federal commission to determine the fate of individuals who had gone missing during the entire period of counter - terrorism operations in LOC . The Commissioner further emphasised the importance of systematic application of rules prohibiting the wearing of masks or non - standard uniforms without badges , as well as the use of unmarked vehicles in the course of investigative activities .","The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him . There had certainly been a number of positive steps , such as the establishment of ORG structures , increased support for victim participation in criminal proceedings , and the promulgation of various directives regarding the conduct of investigations . Despite those measures of a systemic , legislative and regulatory nature , the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in DATE . He called on the NORP leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated .","In DATE ORG ( HRW ) issued a report entitled \u2018 Who Will Tell Me What Happened to PERSON ? GPE \u2019s ORG on Chechnya\u2019 , which was strongly critical of the absence of progress in the investigations in disappearance cases .","On DATE ORG and CARDINAL NORP NGOs , ORG , published a joint open letter to the NORP President . They spoke of a \u201c complete failure of GPE investigating authorities to deal with abductions of GPE residents by local law - enforcement and security agencies \u201d , of \u201c systematic sabotage of investigations by NORP law - enforcement agencies and the inability of ORG to fulfil its direct mandate to investigate crimes \u201d ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":["2-1","5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107371","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2011,"docname":"TERESHCHENKO v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON , a lawyer practising in ORG .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the police officers took the applicant to GPE of GPE ( \u201c the ORG \u201d ) in order to question her about a crime allegedly committed by ORG the applicant \u2019s colleagues . A number of the applicant \u2019s co - workers were also taken to ORG for the same reason .","According to the applicant , she was held in ORG from TIME on DATE to TIME DATE .","At TIME on DATE the applicant was allegedly again taken to ORG , where she was questioned further and released at TIME that day .","While the applicant was being held in ORG she was allegedly physically and psychologically coerced to testify against ORG ; the reasons why she had been brought to ORG were not immediately explained to her ; and her relatives were not informed of her whereabouts .","On DATE the applicant lodged a complaint under Article CARDINAL of the Code of Criminal Procedure ( \u201c the CCrP \u201d ) with the Holosiyivskyy ORG of Kyiv ( \u201c the ORG \u201d ) against the police officers . She claimed that her detention was unlawful and that the reasons for her arrest had not been explained to her . The applicant invoked Articles CARDINAL and CARDINAL of the LAW in support of her complaint .","By letter of CARDINAL DATE the President of ORG replied that her complaint under LAW ORG could not be considered by the court since she had not been arrested as a suspect .","On DATE the applicant lodged with ORG of the Holosiyivsky District of GPE ( \u201c the ORG \u201d ) an application for criminal proceedings to be instituted against the police officers . The applicant alleged that she had been unlawfully arrested , the reasons for the arrest had not been explained to her , and she had been illtreated by the police officers .","By a letter of DATE the ORG informed the applicant that her application was unsubstantiated . It noted that at TIME on DATE the applicant and her co - workers were taken to ORG for an interview concerning a crime allegedly committed by ORG ; at TIME the applicant left ORG ; no irregularities could be found in the acts of the police officers which necessitated the adoption of any decision under LAW","On DATE the applicant challenged the ORG reply of DATE before ORG in accordance with the procedure provided by LAW The applicant alleged that ORG had unlawfully refused to institute criminal proceedings .","On DATE ORG dismissed the applicant \u2019s complaint . It noted that under LAW CCrP the courts could consider only complaints against formal decisions on refusal to institute criminal proceedings . No such a decision had been taken in the applicant \u2019s case .","On DATE the applicant and her lawyer lodged an appeal against that decision .","On DATE ORG upheld the decision of ORG .","The relevant provisions of the LAW read as follows :","\u201c Every person has the right to freedom and personal inviolability .","No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law .","In the event of an urgent need to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody .","Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .","Everyone who has been detained has the right to challenge his or her detention in court at any time .","Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . \u201d","\u201c Human and ORG rights and freedoms are protected by the courts .","Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies exercising ORG power , local self - government bodies , officials and officers ... \u201d","\u201c A prosecutor , investigator , body of inquiry or a judge shall be obliged to accept applications or communications as to the committed or prepared crimes , including in cases that fall outside their competence .","Following an application or communication about a crime the prosecutor , investigator , body of inquiry or a judge shall be obliged , within the DATE time limit , to adopt one of the following decisions :","( CARDINAL ) to institute criminal proceedings ;","( CARDINAL ) NORP to refuse to institute criminal proceedings ;","( CARDINAL ) NORP to remit the application or communication for further examination according to jurisdiction . ... \u201d","\u201c The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :","NORP if the person is discovered whilst or immediately after committing an offence ;","NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;","NORP if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .","If there is other information which gives grounds for suspicion that a person has committed a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .","For each case of detention of a criminal suspect , the body of inquiry shall be required to draw up TIME outlining the grounds , the motives , DATE , time , DATE , the place of detention , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel , starting with the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The TIME of detention shall be signed by the person who drew it up and by the detainee .","A copy of TIME with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as grounds for the detention shall be sent to him as well . ...","Within TIME of the arrest , the body of inquiry shall :","( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;","( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;","( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .","If the detention is appealed against to a court , the detainee \u2019s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure has been applied , the judge shall examine it within DATE of receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE of receiving it .","The complaint shall be considered in accordance with the requirements of LAW . Following its examination , the judge shall give a ruling , either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful .","The ruling of the judge may be appealed against within DATE of the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court \u2019s ruling .","Detention of a criminal suspect shall not last for CARDINAL .","If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up TIME to that effect , and shall inform the official or body which carried out the arrest accordingly . \u201d","\u201c Complaints against a decision of a prosecutor , an investigator or a body of enquiry to refuse to institute criminal proceedings shall be lodged with the district ( city ) court ... by the person whose interests are touched upon , or a representative of that person , ... within DATE of its receipt or information given by the prosecutor that he has refused to quash the decision . \u201d","\u201c Complaints against a decision of a prosecutor , investigator or body of inquiry to refuse to institute criminal proceedings shall be examined by a single judge within DATE of the arrival of the complaint at the court .","The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based , examine them and inform the prosecutor and the complainant of the date when it will be examined . If necessary , a judge shall hear explanations by the complainant .","... the judge shall take one of the following decisions :","CARDINAL ) NORP to quash the decision refusing to initiate criminal proceedings and return the case file materials for additional examination ;","CARDINAL ) NORP to reject the complaint .","Within DATE of its adoption the decision of a judge may be appealed against to the court of appeal by a prosecutor or a complainant .","A copy of the judge \u2019s decision shall be sent to the person who has adopted the contested decision , the prosecutor and the complainant . \u201d","Chapter CARDINAL-A of the Code dealt with complaints against decisions , acts or inactivity on the part of ORG and local self - government bodies as well as their officials .","In particular , Article CARDINAL - CARDINAL of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision , act or omission on the part of a ORG body , legal entity or official could lodge a complaint with a court . Article CARDINAL - CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the Code provided that such complaints were outside the courts\u2019 jurisdiction if they concerned a decision , act or omission by an official of a body of inquiry , pre - trial investigation authority , prosecutor \u2019s office or court which could be challenged by a different procedure .","In this decision , ORG declared Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions , acts or omissions by officials of bodies of inquiry , pre - trial investigation authorities or prosecutor \u2019s offices in cases where the legislation provided only for a non - judicial remedy .","According to this ORG , inactivity on the part of a body of enquiry , investigator or prosecutor resulting in a decision not being taken under LAW could be challenged by a procedure established in LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58298","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF S\u00dcREK v. TURKEY (No. 4)","importance":2,"conclusion":"Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"John Freeland;Luzius Wildhaber;Paul Mahoney","text":["The applicant is a NORP citizen who was born in DATE and lives in GPE .","At the material time , the applicant was the major shareholder in ORG ve PERSON , a NORP limited liability company which owns a DATE review entitled Haberde Yorumda Ger\u00e7ek ( ORG and Comments ) , published in GPE .","NORP In issue no . CARDINAL of the review , dated DATE , a news commentary entitled \u201c PERSON and Dehak Once Again \u201d was published . The article analysed possible events , which could occur during the upcoming celebrations of LANGUAGE .","A translation of the relevant parts of the news commentary is as follows :","\u201c ... It \u2019s DATE in GPE . The biggest confrontation between the demands of the NORP people and intolerance in the face of the expression of these demands occurs during DATE . The tradition of rebellion is awakened . PERSON and PERSON are once again invested with flesh and bones . It is time to settle accounts . There is nothing vague about PERSON . All the mountains , all the cities are full of PERSON . There are CARDINAL of them . All right , who , then , is Dehak ? Who is the candidate for representing Dehak in DATE ? Is it Demirel ? Is it PERSON ? The regional Governor ? Or the new commander PERSON ? This time round , is PERSON represented by every counter - insurgency ORG chief , indeed , every counter - insurgency operative , every special team member , every police commissioner or superintendent officer ? Has Dehak become anonymous too ? Be it as it may , but PERSON and PERSON will settle their accounts once again . ...","DATE , a revolutionary publication described DATE as follows :","\u2018 Nowadays over CARDINAL soldiers massed into GPE . Tanks and weapons are sent over . Bombs are raining on NORP villages and mountains . The Chief of ORG has inspected the preparations for the offensive . Instructions are being issued to provincial and district governors , special team leaders , police chiefs and military officials . The Head of M\u0130T intelligence agency talks of the prospect of much blood being shed . Members of ORG are organising information - gathering trips in order to take the pulse of the people.\u2019 ...","Unlike DATE , the ORG - leaning ORG ( ORG ) is also expected to take on a role during GPE DATE . ...","On the other hand emergency measures are being implemented in large cities outside GPE where there are concentrations of NORP people . It is highly likely that there will be large demonstrations in DATE there . \u201d","In the same issue and within the context of the above news commentary , an interview was also published by ORG with a representative of ORG of GPE ( \u201c the ERNK \u201d ) , the political wing of ORG ( \u201c the NORP \u201d ) . Both organisations are illegal under NORP law .","A translation of the relevant part of the interview is as follows :","\u201c ... We wish to emphasise this finding , indeed , we feel that it ought to be underlined . And we call on all NORP countries . We are open to any humanitarian , political solution , including the calls for an armistice . The ORG movement and its struggle are absolutely not terrorist movements . This misapprehension must be abandoned DATE it must definitely be abandoned DATE and a move must be made towards co - operation and support . The real terrorist is GPE . We believe that attitudes on this matter will be much clarified DATE , that very positive dialogues will develop and that GPE will be gradually further isolated . \u201d","On DATE ORG ( GPE PERSON ) ordered the seizure of all copies of issue no . CARDINAL of the review , since it allegedly disseminated separatist propaganda .","In an indictment dated DATE , ORG at ORG , on account of the publication of the above news commentary , charged the applicant in his capacity as the owner of the review with disseminating propaganda against the indivisibility of the State . He was also charged with publishing the declaration of the ERNK ( see paragraph CARDINAL above ) . The charges were brought under sections CARDINAL and CARDINAL of the Prevention of Terrorism Act DATE ( hereinafter \u201c the DATE LAW : see paragraphs DATE and CARDINAL below ) , respectively .","In the proceedings before ORG , the applicant denied the charges . He pleaded that the incriminated news commentary did not fall within the scope of section CARDINAL of the DATE Act . He maintained that arguing and commenting on possible activities in which the ORG might engage during the PERSON celebrations could not be regarded as publishing a declaration of a terrorist organisation within the meaning of section CARDINAL of the CARDINAL Act . As regards his freedom of expression , the applicant referred to LAW and the case - law of the Commission and the ORG . He stated that pluralism of opinion was essential in a NORP society including opinions which shock or offend . He argued that the provisions of sections CARDINAL and CARDINAL of the CARDINAL Act restricted freedom of expression in contravention of LAW and the criteria laid down in the case - law of the Commission and the ORG .","In a judgment dated DATE , ORG found the applicant guilty of an offence under section CARDINAL \u00a7 CARDINAL of the CARDINAL Act . The court first sentenced the applicant to a fine of MONEY . However , having regard to the applicant \u2019s good conduct during the trial , it reduced the fine to MONEY .","In its reasoning , the court held that the incriminated news commentary contravened section CARDINAL of the CARDINAL Act . The court concluded that it referred to a certain part of the NORP territory as \u201c GPE \u201d as well as a certain section of the population as \u201c NORP \u201d , and amounted to propaganda against the indivisibility of ORG .","The court further observed that the review had also published the declaration of an illegal terrorist organisation in which GPE was referred to as a terrorist ORG . However , it considered that the declaration constituted part of the incriminated news commentary . Having regard to the provisions of LAW of LAW , the court found no grounds for a separate conviction under section CARDINAL of the CARDINAL Act .","The applicant appealed against his conviction to ORG . He relied on the defence grounds which he had invoked at his trial before ORG .","On DATE ORG dismissed the applicant \u2019s appeal , upholding ORG reasoning and its assessment of the evidence .","On DATE the applicant paid the last instalment of the fine imposed on him .","Following the amendments made by Law No . CARDINAL of DATE to the DATE LAW see paragraphs CARDINAL and CARDINAL below ) , ORG ex officio re - examined the applicant \u2019s case .","On DATE the court ruled that these amendments did not affect the applicant \u2019s case as his sentence had already been executed .","The relevant provisions of LAW read as follows :","\u201c In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence \u2026 \u201d","Article CARDINAL","\u201c A person who infringes various provisions of this LAW by a single act , shall be punished under the provision which prescribes the heaviest punishment . \u201d","The relevant provisions of LAW DATE read as follows :","\u201c For the purposes of the present PERSON , the term \u2018 periodicals\u2019 shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .","\u2018 Publication\u2019 shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .","An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . \u201d","NORP The relevant provisions of LAW DATE read as follows :","\u201c It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person \u2019s ... identity is divulged provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .","It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to print or publish declarations or leaflets emanating from terrorist organisations .","\u2026","Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the sales of the previous issue if the periodical appears DATE or less frequently , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched . However , the fine may not be MONEY . The editor of the periodical shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher . \u201d","( before amendment by PERSON no . CARDINAL of DATE )","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years\u2019 imprisonment and a fine of from CARDINAL to MONEY .","Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment . \u201d","( as amended by PERSON no . CARDINAL of DATE )","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years\u2019 imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .","Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment .","Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months\u2019 and not more than two years\u2019 imprisonment and a fine of from CARDINAL MONEY \u2026","\u2026 \u201d","The following amendments were made to LAW DATE after the enactment of LAW of DATE :","\u201c In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE . \u201d","The Code of Criminal Procedure contains the following provisions :","\u201c An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .","Non - application or erroneous application of a legal rule shall constitute unlawfulness . \u201d","\u201c Unlawfulness is deemed to be manifest in the following cases :","CARDINAL- where the court is not established in accordance with the law ;","CARDINAL- where CARDINAL of the judges who have taken the decision was barred by statute from participating ;","\u2026 \u201d","The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON \u2013 see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor \u2019s decisions included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .","Furthermore , the ORG submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : DATE ( no . CARDINAL ) and CARDINAL DATE ( no . CARDINAL\/CARDINAL ) ; DATE ( no . CARDINAL\/CARDINAL ) , DATE ( no . MONEY ) , DATE ( no . PERSON ) , CARDINAL DATE ( no . CARDINAL\/CARDINAL ) and DATE ( no . CARDINAL ) ; CARDINAL DATE ( no . GPE ) , DATE ( no . CARDINAL ) , DATE ( no . GPE ) , DATE ( no . CARDINAL\/CARDINAL ) and DATE ( no . CARDINAL ) .","As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of \u201c propaganda \u201d , CARDINAL of the constituent elements of the offence , or on account of the scientific , historical and\/or objective nature of the words used .","The constitutional provisions governing judicial organisation of ORG are worded as follows :","\u201c In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .","No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . \u201d","\u201c Judges \u2026 shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW \u2026 \u201d","\u201c ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG \u2019s internal or external security .","ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .","The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor , shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .","Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .","Appeal against decisions of ORG shall lie to ORG .","... \u201d","\u201c Military legal proceedings","\u201c The personal rights and obligations of military judges \u2026 shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... \u201d","Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide as follows :","\u201c In the capitals of the provinces of \u2026 ORG shall be established to try persons accused of offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free , democratic system of government and offences directly affecting the ORG \u2019s internal or external security . \u201d","\u201c The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . \u201d","\u201c The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian \u2026 judges , the other members , whether regular or substitute , military judges of the first rank \u2026 \u201d","\u201c The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .","Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG \u2026 may not be appointed to another post or place , without their consent , within DATE \u2026","\u2026","If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves \u2026 may be changed in accordance with the procedure laid down in that legislation . \u201d","\u201c ORG shall have jurisdiction to try persons charged with","( a ) the offences contemplated in LAW ,","\u2026","( d ) offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,","( e ) offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State \u2013 meaning both the national territory and its people DATE or against the free , democratic system of government and offences directly affecting the ORG \u2019s internal or external security .","\u2026 \u201d","\u201c ORG shall hear appeals against the judgments of ORG . \u201d","\u201c The rules governing the rights and obligations of \u2026 military judges appointed to ORG and their supervision \u2026 , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession \u2026","The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors \u2026 and the files on any investigations conducted in respect of them \u2026 shall be transmitted to ORG . \u201d","\u201c A ORG may be transformed into a ORG , under the conditions set forth below , where a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG \u2026 \u201d","The relevant provisions of ORG are worded as follows :","\u201c The aptitude of military judges \u2026 appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .","( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members \u2026 shall be the Minister of ORG in ORG , followed by PERSON .","\u2026 \u201d","\u201c Members \u2026 of ORG belonging to ORG \u2026 shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG \u2026 \u201d","\u201c Military judges \u2026 shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces \u2026","\u2026","The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors \u2026 \u201d","\u201c The rules governing the salary scales , salary increases and various personal rights of military judges \u2026 shall be as laid down in the provisions relating to officers . \u201d","\u201c The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :","A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .","\u2026","B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .","\u2026","The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file \u2026 \u201d","\u201c When military judges \u2026 sit in court they shall wear the special dress of their civilian counterparts \u2026 \u201d","Article CARDINAL of LAW of CARDINAL DATE provides :","\u201c It shall be an offence , punishable by DATE imprisonment , to abuse one \u2019s authority as a civil servant in order to influence the military courts . \u201d","Under LAW , ORG of ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement ."],"violated_articles":["10","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4547","languageisocode":"ENG","respondent":"DNK","branch":"ADMISSIBILITY","date":1999,"docname":"KITOV v. DENMARK","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is a NORP citizen , born in DATE . It appears that he is presently residing in GPE , GPE . Before the ORG the applicant is represented by PERSON PERSON and Mr PERSON , both lawyers practising in GPE , GPE .","A.","On DATE the applicant was arrested in GPE on the basis of an international arrest warrant issued by the NORP authorities in order to obtain his extradition to GPE . He was suspected of having committed drug offences contrary to NORP law .","The applicant was extradited to GPE in DATE where he was placed in pre - trial detention .","On DATE the applicant and CARDINAL witnesses were heard by ORG ( ORG ) . The applicant was assisted by counsel at the hearing . On DATE the ORG convicted the applicant of having committed drug offences contrary to LAW of LAW ( straffeloven ) . He was sentenced to DATE imprisonment . On DATE the applicant appealed against the judgment to ORG ) which had competence to determine the case on points of law as well as on facts . ORG decided to release him during the appeal proceedings . It appears that the applicant left GPE upon his release .","The prosecution appealed against the decision to release the applicant to ORG which decided , on CARDINAL DATE , that he was to be detained until DATE pursuant to LAW , subsection CARDINAL , of ORG ( retsplejeloven ) , as there was specific reason to believe that he would leave the country and evade prosecution if he remained at large . On CARDINAL DATE ORG ( Statsadvokaten i Viborg ) requested ORG not to fix the length of the applicant \u2019s detention as the applicant was presumed not to reside in GPE any longer . On DATE ORG decided in accordance with ORG request .","The hearing in ORG was scheduled to take place on DATE . Prior to the hearing the applicant was appointed a NORP lawyer , PERSON , who put forward several requests to ORG on DATE in order , inter alia , to prepare for the hearing .","On DATE a NORP lawyer , GPE , sent a fax to the High Court whereby the court was informed , inter alia , that GPE had been approached by the applicant , who had chosen his domicile at GPE \u2019s office address . GPE requested that the hearing be adjourned due to the applicant \u2019s alleged illness . A notice impressed with the hallmark of ORG ) in GPE , in a NORP and an LANGUAGE version , was enclosed with the letter . According to the notice the applicant was admitted to \u201c a general medical check - up \u201d lasting DATE . From ORG \u2019s letter it transpires that the purpose of the medical check - up was the applicant \u2019s alleged heart decease and a severe flu . GPE stressed that the applicant wished to appear before the court to defend himself against the charges brought against him .","On DATE ORG faxed a medical statement to ORG signed by \u201c Dr. PERSON Cardiologist \u201d that described - in medical terms - the applicant \u2019s alleged heart decease and the envisaged cure .","On DATE the applicant \u2019s NORP counsel , PERSON , sent a letter to GPE , which read as follows :","\u201c ...","Since [ the applicant ] has not reacted to my letters forwarded to his ORG address , I ask you to try to obtain his comments to the following :","At the court meeting held at [ the High Court of Western GPE ] on DATE , the Prosecutor requested a refusal of [ the applicant \u2019s ] appeal claiming that there was not sufficient documentation that his absence was unavoidable . However , the ORG sustained my claim that the trial was to be postponed as it was not found that the information contained in your letter of DATE , and the enclosed letter of admission from ORG , could be disregarded . As previously informed the trial was then postponed until DATE , DATE at TIME .","However , ORG has again made a request to [ ORG ] that the [ appeal ] be dismissed . In support of this request ORG maintains that the letter of admission of DATE is false . The police have contacted the management secretary of the hospital and [ the ] chief physician who have stated that [ the applicant ] has never been admitted . And the hospital does not know him , neither [ by ] name or the file number mentioned in the letter . Besides , the hospital has stated that it has never used letter paper as the one [ used for ] the letter of DATE ... However , until DATE , the printed letterhead on the invoices of the hospital has been used . Finally , the hospital has stated that the signature on the letter of admission does not belong to anybody employed at the hospital .","The letter sent later by you of DATE , from Doctor PERSON the police have submitted to the only NORP doctor of this name . And in [ a ] letter of DATE ... he has stated that also this statement is false .","[ ORG ] has postponed the decision of the claim made by ORG for a dismissal , awaiting my comments on the information provided . If possible , please obtain and send to me as soon as possible [ the applicant \u2019s ] comments to the claim that the CARDINAL letters are false .","... \u201d","On DATE ORG sent a letter to ORG , which read , inter alia , as follows :","\u201c ...","As I already informed you , [ the applicant ] was not able to travel to GPE because of problems with his health in DATE .","Because of his health [ the applicant ] was not able to visit me at my office and for that reason he sent some friends . I pointed out to these gentlemen that it was necessary that I should receive a medical statement about the state of health of [ the applicant ] in order to send this statement to GPE .","...","Shortly after I received the statement of dr . PERSON , known by you , which appeared to be false . I can tell you that I was unpleasantly surprised by this false statement and I informed [ the applicant ] about this matter immediately .","[ The applicant ] was also unpleasantly surprised and [ he has in the meantime learned ] that the abovementioned gentlemen - entirely without his knowledge - tried to help him with a misplaced [ enthusiasm ] in an illegal way .","[ The applicant realises ] that he has been brought in a very difficult situation , but requests the ORG for understanding , all the more because he has been really ill and was not able to travel . [ The applicant ] refers to the enclosed medical statement of his physician dr . PERSON ...","[ He ] should like to have the opportunity to defend himself in appeal and should like to appear in court .","...","Finally I want to inform you that I want to declare formally that I will be the lawyer in this matter and that I will prepare the defence together with a NORP lawyer . I request you to send me a copy of the entire criminal file .","... \u201d","It appears that the medical statement from PERSON short hand written note in NORP , dated DATE - was faxed to ORG by a colleague to GPE , on DATE .","On DATE PERSON sent a letter to ORG , reading , inter alia , as follows :","( Translation )","\u201c ...","ORG has , by letters of CARDINAL DATE and CARDINAL DATE with enclosures ... requested [ ORG ] that [ the applicant \u2019s ] appeal be dismissed .","As appointed defence counsel for [ the applicant ] I hereby object to [ the ORG \u2019s proposal ] .","Immediately upon receipt of ORG letter of CARDINAL DATE I sent a letter to [ the applicant ] on CARDINAL [ DATE ] , addressed to PERSON address abroad of which he had informed me - which is the only address I know of - and asked him to inform me what was the actual position as regards his admission to ORG DATE and the received statement from dr . PERSON . As [ the applicant ] did not react I requested [ GPE ] to obtain and forward [ the applicant \u2019s ] views on the material from ORG , by letter of CARDINAL DATE . Subsequent to my receipt , on DATE , of the court transcripts of CARDINAL [ DATE ] , I informed [ GPE ] of their contents by letter of CARDINAL [ DATE ] . On DATE , I have received a copy of [ GPE \u2019s ] letter of the same date with enclosures to ORG .","In support of my objection against ORG proposal I have only the possibility of referring to the contents of [ GPE \u2019s ] letter of CARDINAL DATE from which it appears that it can not be ruled out that [ the applicant ] had a lawful excuse for his absence at the hearing in ORG , on DATE .","... \u201d","On DATE GPE , inter alia , requested ORG to appoint a new NORP lawyer as the applicant had no longer confidence in PERSON and as he was informed that PERSON had recommended ORG that the latter \u2019s appointment as counsel for the applicant be withdrawn . GPE further requested ORG to adjourn the case until a new lawyer had been found . In addition GPE requested the ORG to inform him whether it would \u201c acknowledge [ him ] as lawyer in [ the applicant \u2019s ] case \u201d and to send him copies of ORG letters of CARDINAL DATE and CARDINAL DATE with enclosures . On CARDINAL and CARDINAL March CARDINAL GPE , inter alia , repeated his request for access to the file and for acknowledgement as counsel for the applicant . He also requested that the NORP lawyer , PERSON , be acknowledged as counsel for the applicant .","","In the meantime , on DATE , PERSON informed GPE that ORG had decided on DATE , pursuant to LAW of ORG ( retsplejeloven ) , not to hand over copies of the aforementioned letters in the file to GPE or the applicant .","On DATE ORG , sitting with CARDINAL professional judges and CARDINAL lay judges , decided to dismiss the applicant \u2019s appeal . Neither the applicant - or any of his representatives - nor the prosecutor was present at the court meeting . The decision was made on the basis of the written material in the case , including the medical statement of DATE from PERSON , GPE \u2019s letters of CARDINAL and DATE and DATE , PERSON \u2019s letters of CARDINAL and DATE , a report of DATE from the Chief of ORG , and the letter of CARDINAL DATE from ORG . The ORG transcripts read , inter alia , as follows :","( Translation )","\u201c ...","The hearing is public .","...","On the basis of the material now available it must be considered established that the admission notice from the NORP hospital was false . In addition , subsequent to that , a false medical certificate allegedly issued by PERSON has been submitted . On this background - notwithstanding ... the medical certificate issued by a doctor , PERSON submission that [ the applicant ] had a lawful excuse [ for his absence ] at the beginning of the hearing , on DATE , must be rejected . ORG therefore , pursuant to LAW , reverses its decision of CARDINAL DATE as to the adjournment of the case .","On the basis of the information provided by the prosecution about the efforts made to have the indictment and summons served on the applicant , the ORG is satisfied that it has been impossible to serve these documents in the usual manner because he has changed address or place of residence without giving due notice thereof .","For these reasons the prosecution \u2019s request for dismissal of [ the applicant \u2019s ] appeal is sustained pursuant to section CARDINALc , subsection CARDINAL second part .","It is decided :","This appeal is dismissed .","In accordance with [ PERSON \u2019s ] recommendation of CARDINAL DATE ORG withdraws the appointment of [ PERSON ] as defence counsel for [ the applicant ] .","ORG has not found any reason to appoint a new counsel for [ the applicant ] before the decision to dismiss [ the applicant \u2019s ] appeal was made .","... \u201d","On DATE ORG rejected the applicant \u2019s request to reopen the case .","Upon the applicant \u2019s request , ORG granted him leave to appeal to ORG ( H\u00f8jesteret ) on DATE . Enclosed with the letter from ORG was , inter alia , a copy in LANGUAGE of LAW of ORG , which sets out the conditions a lawyer must fulfil in order to be appointed counsel for an accused person .","Following several requests from the applicant for access to the file , the Ministry notified him on DATE that it did not consider itself competent to grant access to the file as long as the case had not been finally decided upon . However , ORG informed the applicant that it had forwarded his request for access to the file to ORG .","On DATE ORG decided that the lawyers [ GPE and PERSON ] could have access to the file , ( cf . LAW ) . However , in order to secure that the NORP rules concerning access to files in criminal cases were observed , the permission was subject to the condition that the lawyers were assisted by a NORP lawyer in the sense that the latter would receive a copy of the file for the use of the NORP lawyers .","On DATE ORG appointed the NORP lawyer PERSON to assist GPE and PERSON in the aforementioned manner . On DATE T.R. informed GPE and PERSON that he was not entitled to send the file or copies of the documents of the file to them or to the applicant but they were welcome to go through the file at his office and that he was willing to give them oral explanations regarding the contents of the documents .","On DATE T.R. asked ORG for permission to forward the file to the applicant \u2019s NORP lawyers .","On DATE ORG rejected the request and emphasised , by reference to its decision of DATE , that only T.R. was permitted to receive copies of the file for the NORP lawyers\u2019 use .","","After the parties\u2019 submission of written statements , ORG decided , on DATE , as follows :","( Translation )","\u201c ...","Notwithstanding [ ORG \u2019s ] request of CARDINAL DATE for withdrawal , which request was granted at the date of the order of dismissal , ORG holds that it has not been established to the satisfaction of the court that [ the applicant ] has been deprived of an adequate and effective defence in connection with ORG decision of CARDINAL DATE to dismiss his appeal or that the decision of ORG is wrong . On those grounds ORG rejects [ the applicant \u2019s ] claim for remission of the case for retrial . As no other allegations have been submitted which can lead to a reversal of ORG decision , ORG [ dismisses the appeal against ORG decision ] .","... \u201d","The applicant was arrested in GPE in DATE and expelled to GPE . It appears that he has now served his prison sentence .","B. Relevant domestic law","Appointment of defence counsel","Section CARDINAL of ORG reads , in so far as relevant , as follows :","( Translation )","Subsection CARDINAL","\u201c Any person who is charged with a crime shall have the right to choose a defence counsel to assist him in accordance with the rules laid down below ... \u201d","Subsection CARDINAL","\u201c Only lawyers who have a right to appear before the court concerned or who have been appointed by ORG to act as public defence counsel before the court concerned may be chosen to act as defence counsel . However , the court may , if it considers it justified , taking into account the nature of the case and other special circumstances , allow the choice of a lawyer from another NORP country to act as defence counsel ... \u201d","Access to the file","Section CARDINAL , subsection CARDINAL , of ORG reads , inter alia , as follows :","( Translation )","\u201c Counsel must have access to the material which is in the possession of the police ... Counsel is not allowed to hand over the material to the accused without the approval of the police . \u201d","The last part of subsection CARDINAL serves to prevent misuse of the case file . However , the accused is not prohibited from acquainting himself with the file at his counsel \u2019s office .","Dismissal of appeal","A person convicted in a criminal case tried by a city court is free , in principle , to appeal against the judgment to ORG in the district of which the city court in question belongs . Immediately upon pronouncement of the judgment , the convicted person can give notice orally to the court records that he wants to appeal against the judgment .","As soon as possible after receipt of the notice of appeal , ORG sees to it that attempts are made to serve a notification ( notice of appeal and indictment ) on the appellant in the usual manner , ( cf . Sections CARDINAL and CARDINAL of ORG ) .","When an appeal also comprises assessment of the evidence , ORG arranges for a summons containing information on the time and place of the hearing to be served on the appellant at a notice of DATE , ( cf . Section CARDINAL and LAW of ORG ) . If a summons is not served or if a summons is served on the appellant at a notice of DATE , the effect is that the appellant is not lawfully summoned to the hearing and therefore , as a point of departure , the hearing can not be held if the appellant fails to appear at the hearing .","However , Section CARDINALc , subsection CARDINAL of ORG reads as follows :","( Translation )","\u201c If the accused fails to appear without stating a lawful excuse for his absence in proceedings where the appeal was raised by him and comprises the assessment of evidence , the court can dismiss his appeal by order if it finds that the hearing can not usefully proceed in his absence . Furthermore , the accused \u2019s appeal can be dismissed if it has not been possible to serve the indictment or the summons upon him in the usual manner because he has changed his address or place of residence without giving due notice thereof . \u201d","The usual manner to serve indictments and summons on somebody are by postal or by personal service , ( cf . Sections CARDINAL until CARDINAL and Section CARDINAL , subsection CARDINAL , of ORG ) . In criminal cases documents can not be served upon the accused \u2019s lawyer ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104096","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2011,"docname":"KOSTJUCENKOVS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["NORP The applicant , Mr M\u0101ris Kostju\u010denkovs , is a NORP national who was born in DATE . At the time of submitting his complaint he was serving a prison sentence in Daugavpils prison . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG found the applicant guilty of burglary and sentenced him to DATE and CARDINAL months\u2019 imprisonment . On DATE the judgment came into force .","According to the applicant , immediately after his arrival at Liep\u0101ja prison he met \u201c enemies \u201d who threatened to subject him to ill - treatment throughout his stay at the prison . Without providing further details in his letter sent on DATE and received by ORG on DATE , the applicant alleged that the threats had been carried out on DATE when , inter alia , he had refused to cooperate with police investigators .","It appears that on DATE he complained to ORG ( \u201c the prosecutor \u2019s office \u201d ) and asked to be transferred to special detention facilities in GPE prison .","NORP The prosecutor \u2019s office forwarded the aforementioned complaint to ORG , which on DATE and DATE informed the applicant that his transfer to another prison would be examined after the entry into force of a final judgment in his criminal case . It appears that on DATE the applicant received this decision .","At DATE the applicant asked ORG to transfer him to PERSON prison , and on DATE the applicant was transferred there .","NORP In response to the ORG \u2019s request to specify his complaint concerning ill - treatment in PERSON prison , on DATE the applicant informed the ORG , without providing any further details , that in PERSON prison he had been ill - treated in DATE , but that he had not retained any documents relating to the matter . He asked the ORG to examine only his complaints under LAW . In a letter received by ORG the applicant alleged , without substantiating his allegations , that he had been ill - treated in PERSON temporary detention centre , and that on DATE his complaint in that regard had been dismissed by the prosecutor \u2019s office .","On an unspecified date in cell no . CARDINAL of GPE prison the inmates had threatened to sexually assault the applicant because he had cooperated in the past with law - enforcement authorities . He had accordingly been moved to another cell .","On DATE he had been transferred to a cell which his fellow inmates had refused to share with him . They had asked him to leave . Accordingly , the applicant had refused to stay in the cell , for which he had received a warning from the prison staff , and had been moved to another cell .","At a later stage , he had been put into yet another cell , where he had had a dispute with a prison guard . For that incident , he had been punished on DATE with DATE of solitary confinement .","After being punished , the applicant had been moved to another cell which the inmates had refused to share with him . He had then been moved to another cell .","In DATE he had been transferred to a cell in another part of the prison ( division CARDINAL ) . In that cell , another inmate , PERSON , had beaten up the applicant . On DATE S. had been punished for that with solitary confinement . The applicant alleged that after having finished his time in solitary confinement , S. had again been put in the same cell as him .","On DATE the applicant had been on duty in the cell . Other inmates had refused to comply with legitimate requests made by the applicant and had made him leave the cell . The prison officers had refused to transfer him to another cell , even in the event that they had accepted that the other inmates had \u201c attempted to subject him to psychological and physical ill - treatment \u201d . On DATE , the applicant had been punished with solitary confinement for bullying a cellmate .","After having been punished in the manner noted above , the applicant had been transferred to cell no . CARDINAL in division CARDINAL , where the inmates had allegedly humiliated him and had taken his jacket and shoes .","On DATE in a complaint to ORG the applicant alleged that he had refused to cooperate with investigators , and that one of the officers , PERSON , in PERSON prison had placed him in cells where the other inmates had physically ill - treated and bullied him .","On an unspecified date the applicant complained to ORG of the fact that he had never been transferred to cells with a peaceful environment . He also complained that he had been continuously transferred from one cell to another without any explanation or justification .","In DATE a prosecutor visited the applicant and asked the director of ORG to comment on the matter . The director had stated that he had never threatened the applicant , who had himself created problems by attempting to sexually assault fellow inmates . On DATE the prosecutor dismissed the applicant \u2019s complaint , noting that the allegations had not been proved and that there had not been any threats to the applicant \u2019s life and health . The decision was subject to appeal . The letter also informed the applicant that ORG was not empowered to decide on issues concerning the transfer of prisoners from CARDINAL prison to another , and that that issue was within the competence of ORG .","On DATE , after having examined the applicant \u2019s personal file , the director of the PERSON prison established that the applicant had had conflicts with other inmates \u201c due to illegal activities \u201d , for which it had not been possible to place the applicant either in a cell or in common LOC . Accordingly , he proposed that ORG to transfer the applicant to another prison for safety reasons .","On DATE the applicant was transferred to Daugavpils prison to serve his prison sentence there .","On DATE , while serving his prison sentence in Daugavpils prison , the applicant complained to ORG about the warning he had been given by way of administrative punishment on DATE in GPE prison ( see paragraph CARDINAL above ) .","On DATE and CARDINAL DATE ORG informed the applicant that the administration of PERSON prison had not violated either any provisions of domestic law or the internal rules of the prison . As to the applicant \u2019s complaint of stolen belongings , ORG had obtained information from PERSON prison to the effect that in DATE , after the applicant \u2019s release from solitary confinement , his belongings had been returned to him , that this had been certified by his signature , and that the applicant had not raised any complaints in that regard .","During the applicant \u2019s stay in GPE prison , he had violated prison rules CARDINAL times and he had been punished for having damaged prison property , insulting a prison officer and bullying other prisoners . The applicant had been transferred to another cell CARDINAL times .","While in Daugavpils prison , the applicant had been transferred several times at the request of his cellmates from one cell to another , as he had been constantly creating conflicts by trying to dominate his cellmates .","In DATE and DATE the applicant asked ORG to transfer him to serve his prison sentence in either of PERSON or P\u0101rlielupe prisons , arguing that that would allow him to receive visits from his underage daughter more easily and to avoid physical and verbal ill - treatment from other inmates .","On DATE the request was granted by ORG and the applicant was transferred to P\u0101rlielupe prison . The decision to transfer referred to the applicant \u2019s conflicts with other inmates and to the fact that he had not been able to receive visits from his relatives .","NORP Since DATE the applicant had been regularly assessed by a psychiatrist owing to minor learning difficulties ( viegla gar\u012bga atpalic\u012bba ) . In DATE a forensic medical expert determined that the applicant was legally responsible . He was also excluded from the register of persons suffering from mental diseases . It appears that in prison the applicant was assessed by a psychiatrist and , when necessary , received psychiatric treatment .","NORP Per a medical report from PERSON prison , it appears that on DATE , before being placed in solitary confinement , the applicant was examined by a doctor at the request of prison officers . The doctor did not observe any injuries to the applicant . The applicant did not require medical assistance whilst in GPE prison on any other occasions .","On DATE , after having arrived at Daugavpils prison , the applicant was examined by a prison doctor , who observed that the applicant presented no health complaints or bodily injuries .","On DATE the applicant asked for medical assistance as he had sustained bodily injuries \u2013 namely , CARDINAL hematomas , which did not in the end require medical treatment . The applicant did not request medical assistance whilst in NORP prison on any other occasions .","In DATE and DATE the applicant requested medical assistance whilst in the LOC and P\u0101rlielupe prisons , as he had been beaten by other inmates and as a result had sustained facial bruises .","The report to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( \u201c the ORG \u201d ) from CARDINAL to CARDINAL DATE notes the following :","\u201c DATE . ... As was the case in DATE , a number of allegations were heard in both establishments [ Daugavpils Prison and R\u012bga Central Prison ] that prisoners had been threatened by members of the establishments\u2019 Security Departments that they would be placed in cells with inmates prone to violence , if they refused to co - operate with ORG ( i.e. to act as an informant or to confess to a criminal offence ) . In the ORG \u2019s view , such practices can easily be described as psychological ill - treatment ( see also paragraphs CARDINAL ) .","No allegations of physical \/ psychological ill - treatment or verbal abuse by staff were heard at FAC . \u201d","The relevant provisions of LAW ) , applicable at the material time ( in force until DATE ) , Criminal Law ( PERSON ) and PERSON on ORG ( Prokurat\u016bras likums ) are found in GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101734","languageisocode":"ENG","respondent":"ROU","branch":"ADMISSIBILITY","date":2010,"docname":"TIMCIUC v. ROMANIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .","NORP The present application consists of complaints lodged at different times by the applicant , each complaint concerning individual sets of domestic proceedings in respect of which he addressed the Court .","CARDINAL .","From DATE the applicant occupied the post of director of ORG in PERSON , an administrative body under the authority of the mayor . At that time the mayor of PERSON was PERSON The applicant was also working as a part - time legal advisor for the ORG . After his arrest ( see paragraph CARDINAL below ) , he was released from his duties as director by a decision of ORG DATE and was dismissed from the post of legal advisor by a decision of ORG of CARDINAL DATE .","DATE , a series of articles was published in ORG ( \u201c GNV \u201d ) , a local DATE newspaper , in which the applicant and the mayor were accused of having accepted bribes in their professional capacity .","On DATE at TIME QUANTITY police officers paid the applicant a visit and invited him to the police station in order to make a statement . On DATE he was taken from PERSON to GPE along with other individuals and questioned through TIME , concerning alleged acts of corruption . The mayor was also under investigation .","On DATE in the morning the prosecutor issued an arrest warrant in connection with the crimes of accepting bribes over a period of time and abuse of office ( \u201c luare de mit\u0103 PERSON form\u0103 continuat\u0103 \u201d and \u201c abuz LOC dauna intereselor publice \u201d ) .","The applicant was released on DATE by an order of ORG .","NORP Throughout the criminal investigations , several articles were published in GNV concerning the mayor 's and the applicant 's alleged acts of corruption . Most of the articles appeared in the gossip column entitled ORG , where petty facts about local public figures were published without mention of the author . The director of PERSON explained to the courts dealing with the defamation claims brought by the applicant against the newspaper that those articles were the creation of all the editors , thus could not be attributed to a particular individual .","On DATE and DATE the newspaper published a \u201c note \u201d claiming that it was as a result of its whistle blowing that the mayor and the applicant had been arrested .","On DATE ORG Parchetul Na\u0163ional Anticorup\u0163ie ) decided to close the criminal proceedings concerning certain counts of bribery while nevertheless continuing them on other counts .","On DATE the prosecutor committed the applicant , the former mayor and CARDINAL other persons to trial on several counts of corruption during the mayor 's mandate . The applicant was indicted for abuse of office and giving bribes ( dare de mit\u0103 ) .","NORP The prosecutor noted that the applicant had occupied the post of director without the legal formalities - competition for the post , decision of ORG confirming the nomination - having been completed . It also noted that the post of legal advisor did not appear in ORG organisational chart , and that nobody in the local administration knew that the applicant was occupying it .","Furthermore , in DATE the applicant and the mayor had agreed that the former would get his law degree in DATE and that the latter would keep a legal advisor post blocked for him until then . In exchange , the applicant promised PERSON that he would convince his mother and uncle to sell the mayor a plot of land . On DATE the mayor bought that land for a small price , which he never paid .","NORP The prosecutor also noted that the applicant had leased a booth in the market to a company administered by him and owned by his son and another person , and paid for the repair of the booth from the local budget .","The Alba County Court examined the case and rendered its CARDINAL-page long decision on DATE .","The court dismissed as unfounded the accusations that the applicant had occupied his CARDINAL posts in the local administration unlawfully . The court also considered unfounded the allegations concerning the sale of land to the mayor ; it found that the price paid corresponded to the quality of the land and to the prices in the area , and noted that the applicant had never owned the plot in question therefore could never have offered it as a bribe ; it reiterated that as the applicant had occupied his posts in the administration lawfully there was no causal link between them and the impugned sale .","Lastly , the court considered that the applicant had not broken any regulations when attributing the space in the market to his son 's company .","The applicant and the co - defendants were acquitted on all counts .","The judgment was upheld , by a decision of CARDINAL DATE of ORG , and by a final decision of DATE of ORG and Justice ( the latter decision was rendered upon an appeal on points of law lodged by the applicant and the codefendants ) .","I.C. published an article in the DATE issue of the satirical DATE magazine ORG . The article mainly concerned the mayor 's alleged dubious business practices , and in this context it touched upon the relationship between the mayor and the applicant .","The applicant complained about a statement in that article which read that he \u201c was made chief of ORG , from where meat , eggs , milk and wool rain on him every month \u201d and that the mayor sold some booths in the market at double their value and shared the money with the applicant and another individual .","On DATE the ORG acquitted the journalist and dismissed the applicant 's claim for damages .","It found that the article had been written in the habitual style of a satirical paper and that the fact that the applicant had been arrested and committed to trial afterwards was a good indication for the journalists that he might have committed the alleged offences . On this point , it noted that the applicant had been arrested based on the evidence in the prosecution 's file , and not exclusively on that article , as he had argued in his complaint .","Lastly , the court considered that the author of the article , through journalistic means , had aimed to make public certain negative aspects of the work of civil servants , and not to defame the applicant .","NORP The journalist did not participate in the proceedings , despite several summonses being delivered to him by the police with an order to appear in court ( mandat de aducere ) .","In a final decision of DATE the ORG upheld the judgment . It endorsed the first - instance court 's reasoning and found , in addition , that the journalist had based his article on previously published material and on a press release issued by ORG concerning the mayor and the applicant .","The applicant lodged his complaint with ORG .","On DATE an article was published in GNV about the mayor 's personal real estate acquisitions during his mandate , including the construction of a villa on land bought from the applicant .","The latter lodged a criminal complaint against V.M. , the director of GNV .","V.M. did not participate in the trial .","On DATE the ORG dismissed the criminal complaint and the civil claim for damages . It considered that even if the mayor had in fact bought that land from the applicant 's mother , and not from the applicant himself , as the evidence proved , there was nothing defamatory in the impugned statement .","In a final decision of DATE the ORG upheld the judgment . It endorsed ORG reasoning and added that the fact that V.M. had not participated in the trial and that he had refused to publish the applicant 's comments ( \u201c dreptul la replic\u0103 \u201d ) had no bearing on the case . It also dismissed the applicant 's arguments of a violation of his right to the presumption of innocence , guaranteed by LAW , as it noted that in the case under examination he had not been accused of any criminal act .","The applicant lodged his complaint with ORG on DATE .","On DATE ORG published an article in GNV reporting on the sale of land by the applicant 's mother to the mayor , which he described as a present from the applicant to the mayor in return for the applicant 's post of director .","On DATE the applicant made a criminal complaint against the journalist .","On DATE the ORG acquitted GPE and dismissed the civil claim for damages . On DATE the ORG upheld the judgment , while nevertheless giving its own interpretation of the facts and evidence in the file . In particular , it noted that all the statements of fact made in the article were proven by the evidence in the file and that not even the applicant contested them . It considered that the following value judgments had been made : that the mayor had wanted a trustworthy person on his side ; and that the applicant had paid the favour back by selling the plot of land to him . The court noted that ORG had reported on matters of public interest and that a certain degree of exaggeration was acceptable . It also noted that he had acted in good faith and had not intended to defame the applicant . Lastly , the court pointed out that the applicant had in fact been sent to trial for acts of corruption concerning the sale of that plot of land .","For all these reasons it acquitted the journalist . The court also rejected the civil claims for damages , as it considered that the applicant had not suffered any prejudice as a result of the publication .","The decision was final .","The applicant complained to ORG on DATE .","On DATE an article appeared in the \u201c PERSON t\u00e2rgului \u201d column in GPE . The relevant parts read as follows :","\u201c ORG says that PERSON would like to offer [ the place in the market ] to a favoured trader who would give him , probably as many others do , a present - fee ( tax\u0103 tip cadou ) of QUANTITY . We do not know how this sum will appear in the balance sheets and we do not even think this will happen , but we would like to know for how much longer the traders in the market will keep the silence . \u201d","The applicant lodged a criminal complaint against ORG , director and editor - in - chief respectively of GNV at that time .","On DATE the ORG considered that the information published was based on reliable sources and concerned acts presumably committed by the applicant ; the information had been verified by the journalists before publication and their investigation was likely to have convinced them of its veracity . It also noted that shortly after , the applicant was arrested under the same suspicions .","The court also considered that information on the applicant 's activity was of interest to the public at the time . The journalists ' intention had not been to defame the applicant but to bring those facts to public attention . It concluded that the journalists had not acted in bad faith .","In a final decision of DATE the ORG upheld the judgment . It endorsed the first - instance court 's arguments and added that the fact that the applicant had later been released from custody and committed to trial only on certain counts did not have an incidence on the alleged offence of defamation committed though the publication of that article .","The applicant lodged his complaint with ORG .","On DATE another article was published in GNV that the applicant found defamatory . On DATE he lodged a criminal complaint against the director and the editor - in - chief of the newspaper .","On DATE the ORG noted that the applicant had not respected the time - limit set by LAW for lodging his complaint . It therefore ended the criminal proceedings .","In a final decision of DATE the ORG upheld the judgment .","The applicant lodged his complaint with ORG on DATE .","On DATE the \u201c ORG \u201d column in GNV carried an article entitled \u201c PERSON m\u00e2nat de Costic\u0103 \u201d ( \u201c PERSON led by Costic\u0103 \u201d ) in which it was alleged that the applicant had advised someone from ORG on how to undermine the authority of the new director who had replaced the applicant in that function , and that the applicant himself was interested in undermining the new director . The applicant lodged a criminal complaint against the director of the newspaper .","On DATE the ORG dismissed the complaint and the claim for damages . The court considered that it did not need to hear the defendant , who refused to participate in the trial . On the merits it found that the imputations were not serious enough to expose the applicant to a criminal sanction or to public contempt . It relied on the ORG 's case - law on LAW , notably in order to ascertain the degree of exaggeration allowed to journalists . As the applicant 's public image had not been damaged , the court dismissed the civil claims for damages .","In a final decision of DATE , ORG dismissed the applicant 's appeal .","The applicant lodged his complaint with ORG on DATE .","On DATE , another article was published in the \u201c FAC \u201d column in PERSON , entitled \u201c One more mogul to go \u201d ( \u201c Cu un baron \u00een plus \u201d ) .","The following remarks were made about the applicant :","\u201c Former chief of markets arrested and then released , having dirtied his hands with some ' dough ' ( fost pie\u0163ar \u015fef arestat \u015fi apoi eliberat ... s - a murd\u0103rit pe m\u00e2ini cu oare\u015fce verzi\u015fori ) ... complains that he is being politically persecuted . He crows wherever he can that all barons are free , but he is not . So , our man thinks he is so important that he acts as if he really were in the shoes of a mogul . \u201d","The applicant lodged a criminal complaint against the director and the editor - in - chief of GNV .","On DATE the ORG considered that the remarks in the article were not capable of defaming the applicant and the mention of his arrest and subsequent release did not expose him to any criminal consequence .","DATE . On DATE the ORG upheld the judgment . It endorsed ORG reasoning and it added that the mere fact that the applicant had not been sent to trial for some of the crimes he was arrested in connection with was not enough to prove bad faith on the part of the journalists . It also noted that \u201c FAC \u201d was a satirical column in the newspaper where pieces were published concerning public figures from the county . The decision was final .","The applicant lodged his complaint with ORG on DATE .","On DATE the applicant lodged a criminal complaint against ORG , who had declared in the context of a criminal trial involving the mayor and the journalist PERSON that he had heard that the applicant had requested bribes from the traders in the market . ORG had repeated those affirmations to the press and on national TV . The applicant considered the remarks defamatory .","On DATE the ORG noted that the offence of defamation had been decriminalised by PERSON no . CARDINAL amending LAW and acquitted GPE Consequently , it did not decide on the civil claims for damages .","On DATE the applicant sent a letter to the President of ORG , asking him to order that the civil claims be decided . He considered that in choosing not to examine the civil claims , the court had denied him access to court , in violation of LAW .","His letter was considered to be an appeal against the judgment and was therefore sent to the county court for examination .","On DATE the ORG upheld the judgment and noted that while the criminal court was not competent to examine the civil claims , the applicant could lodge them with the civil courts .","It appears from the documents in the file that the applicant did not do so . However , after ORG decision nr . PERSON ( see paragraph CARDINAL from the \u201c Relevant domestic law \u201d part below ) , the applicant again brought an action for defamation against GPE and sought damages . It seems that on DATE the ORG acquitted GPE because the act complained of was not punishable by the criminal law and the judgment was upheld on DATE by ORG . The applicant did not submit copies of those decisions to this ORG .","It appears that the applicant did not lodge a complaint with the civil courts .","The applicant submitted his complaint to ORG on DATE .","On DATE the applicant filed a criminal complaint for defamation against the same ORG , whom he accused of having called him \u201c dumb \u201d ( t\u00e2mpit ) in his address to the court in a criminal trial where ORG appeared as a witness .","On DATE the ORG acquitted the defendant as the facts were no longer punishable by the criminal law . Accordingly it did not decide on the civil claims . The judgment was upheld on DATE by ORG .","The applicant did not provide the full text of those decisions . It appears , however , that he did not seek damages with the civil courts .","On DATE the applicant lodged his complaint with the ORG .","The applicant complained in DATE about several articles published in GNV which he found defamatory . He lodged his complaint against GPE , the director of the newspaper at that time .","On DATE the ORG noted that defamation had been decriminalised by PERSON no . DATE and therefore acquitted GPE and left the civil claims unresolved .","On DATE the ORG upheld the judgment and noted that the applicant could have pursued the civil claims before a civil court , which he chose not to do . The decision was final .","On DATE the applicant brought the complaint to the ORG .","On DATE the applicant lodged a criminal complaint against an expert accountant who had been appointed by the court in the criminal trial against the applicant to assess some investments made by the local authorities .","On an unspecified date the prosecutor dismissed the complaint . The applicant objected , but the courts upheld the prosecutor 's decision . The final decision in the case was that of DATE by ORG .","The applicant did not provide information on whether he sought civil damages in the proceedings .","He lodged his complaint with ORG on DATE .","DATE . The applicant filed a criminal complaint against ORG , the current director of ORG in PERSON , accusing him of several illegalities in his activity . On DATE the Chief Prosecutor attached to the ORG upheld the prosecutor 's decision not to prosecute ORG The applicant complained to the courts , but his complaint was dismissed on DATE by ORG as out of time . The appeal was also rejected on DATE by ORG ( final decision ) .","The applicant lodged his complaint with ORG on DATE .","GPE and GPE were witnesses in the criminal trial against the applicant . In the proceedings before the courts they withdrew the initial statements they had made to the prosecutor , which were unfavourable to the applicant .","In DATE , the applicant filed a criminal complaint of false testimony against them .","It appears that on DATE the prosecutor attached to ORG decided not to prosecute and that his decision was upheld by ORG in a final decision of CARDINAL DATE . The applicant did not submit copies of the court decisions delivered in the case .","He lodged his complaint with ORG on DATE .","On DATE the applicant lodged a criminal complaint against CARDINAL judges from ORG . He accused them of having arrested him and extended his detention unlawfully and of having behaved abusively towards him , in the knowledge that he had not committed any crime .","On DATE the prosecutor attached to ORG and ORG decided not to prosecute as he considered that the judges had not committed any of the alleged crimes .","The applicant objected and brought his case before the courts .","On DATE ORG upheld the prosecutor 's decision , and on DATE ORG upheld the judgment ( final decision ) .","DATE . The applicant lodged his complaint with ORG DATE .","The applicant lodged a criminal complaint against V.M. , who had allegedly threatened him with \u201c physical correction \u201d during a court hearing on DATE . The applicant claimed that he had understood this remark to be a threat that V.M. would beat him up . There is no indication in the file as to whether the applicant sought civil damages from V.M.","On DATE ORG dismissed the complaint , as it considered that the deed committed by PERSON was not severe enough to create in the applicant a \u201c legitimate and serious fear \u201d , the element required in order for the deed to constitute the offence of threatening behaviour . It also noted that there was a preexisting conflict between the applicant and PERSON caused by the numerous criminal proceedings they were both involved in .","In a final decision delivered on DATE the ORG upheld the judgment .","On DATE the applicant lodged his complaint with the ORG .","On an unspecified date , the applicant filed an action against ORG , seeking reinstatement to his former positions : part - time legal advisor at FAC and Director of ORG , and payment of his salary for DATE to DATE .","On DATE the ORG noted that the administrative decision ordering the applicant 's dismissal from the post of legal advisor was null and void as it had not been issued in conformity with the legal requirements .","However , it noted that during his preventive detention he was not entitled to receive a salary , and that for the damage allegedly suffered during that time he could lodge an action against the ORG for unlawful detention . Therefore he was not entitled to payment of his salary for that period .","The court also considered that from DATE , when he was released from detention , until DATE , when he lodged his present action , the applicant had been inactive and had not returned to work . Therefore , he was not entitled to payment of salary for that period .","Lastly , the court noted that the applicant had been released from the post of director by a decision of ORG DATE and that it was therefore for the administrative court to deal with that part of the request .","In sum , the court ordered ORG to reinstate the applicant as legal advisor and to pay his salary from DATE until effective reinstatement and sent his complaint seeking to be reinstated to his former position as director to the administrative section of ORG .","On DATE ORG upheld the judgment , on appeals lodged by both parties .","On DATE the applicant was reinstated as legal advisor by order of ORG .","On DATE ORG ordered ORG to pay the applicant CARDINAL NORP Lei for illegal arrest and noted that the period spent in detention would count as time spent in work for the purposes of calculating the applicant 's pension .","On DATE the applicant lodged his complaint with the ORG . He submitted no further information on the outcome of the case before the administrative courts .","On DATE the applicant lodged a criminal complaint against LAW , the current mayor of PERSON , for abuse of office , accusing him of not having complied with the decisions ordering the applicant 's reinstatement and payment of salary .","On DATE the prosecutor attached to the ORG decided not to prosecute , noting that the mayor had appealed against the CARDINAL DATE judgment ordering the reinstatement and that on DATE ORG had suspended the enforcement until the appeal had been examined . Therefore , PERSON had been right not to enforce the decisions .","On DATE the chief prosecutor upheld the prosecutor 's decision . The prosecutor 's decisions were upheld by ORG on DATE and by ORG in a final decision of DATE , with the same reasoning as that set out in the prosecutor 's initial decision . ORG also noted that on DATE , after the appeal proceedings had ended , the applicant had been reinstated .","The applicant lodged his complaint with ORG on DATE .","The relevant provisions of ORG concerning insult and defamation and liability for paying damages in force at the material time are described in PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE .","The Criminal Code has been amended repeatedly and in DATE the ORG on insult and defamation were repealed ( PERSON no . CARDINAL ; for details , see PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) .","However , in decision no . CARDINAL of DATE ORG declared unconstitutional the removal of the ORG on insult and defamation from LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4798","languageisocode":"ENG","respondent":"GRC","branch":"ADMISSIBILITY","date":1999,"docname":"KALLITSIS v. GREECE","importance":4,"conclusion":"Inadmissible","judges":"Marc Fischbach","text":["The applicant is a NORP citizen born in DATE . He is an honorary vice - president of ORG ( PERSON ) and resides in GPE .","The facts of the case as submitted by the parties may be summarised as follows .","On DATE the post of vice - president of ORG was declared vacant . At that time the applicant was the senior judge . The post remained vacant for DATE and was filled by the applicant on DATE .","On DATE the applicant brought an action for pecuniary and non - pecuniary damages against the ORG before ORG . In particular , the applicant claimed that he should have been promoted soon after the post was declared vacant and that the delay of the ORG to promote him to the post of vice - president of ORG caused him pecuniary damage and raised suspicions as to his abilities .","On DATE the ORG granted the applicant \u2019s claim insofar as it concerned non - pecuniary damage . The ORG dismissed the remainder of the applicant \u2019s action on the ground that he had no enforceable claim to the vacant post .","On DATE and DATE respectively the applicant and the ORG appealed against this decision .","On DATE ORG rejected the applicant \u2019s appeal and annulled the decision of ORG . ORG referred in particular to the discretionary powers by which the competent administrative authorities organised their activity .","On DATE the applicant appealed to ORG .","On DATE ORG composed of CARDINAL judges decided to refer the case to a ORG composed of CARDINAL judges .","On DATE ORG composed of CARDINAL judges decided to refer the case to the Plenary because of the important issues it raised .","On DATE ORG sitting in GPE rejected the applicant \u2019s appeal . In particular ORG held that it was beyond the competence of ORG to decide whether the decision to promote the applicant should be backdated . Therefore ORG was right in rejecting the applicant \u2019s appeal . The applicant obtained a copy of that decision in DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86522","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"LLOYD v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON PERSON , ORG . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr C. Whomersley of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows\u2019 benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The applicant was not in receipt of child benefit at the time of his claim .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101505","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF KOVALCHUK v. UKRAINE","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lived in GPE .","At TIME on DATE QUANTITY police officers , responding to a call from the applicant 's girlfriend 's sister , brought the applicant to ORG for treatment of severe alcohol intoxication . A medical employee who examined him recorded that the applicant had several abrasions on his buttocks .","At TIME on DATE the applicant was released .","DATE he was arrested and detained by the police on a charge of disobeying a police officer . CARDINAL records of his arrest were drawn up by CARDINAL different police officers , both indicating the time of the arrest as TIME At an unspecified time on the same date a doctor certified that the applicant had no bodily injuries .","On DATE an ambulance was called to the police station in connection with the deterioration of the applicant 's health and apparent loss of consciousness . The ambulance records note that the call was registered at TIME Upon arriving at the police station , the ambulance team found the applicant conscious but in a very agitated state and trembling . In addition , he had haematomas on his buttocks . He was diagnosed as suffering from alcohol withdrawal , given medication and left in the police station .","On DATE the ORG convicted the applicant of disobeying a police officer and ordered his detention for DATE . At an unspecified time during his detention the applicant was questioned as a witness concerning the murder of a PERSON , whose body had been found on DATE in the vicinity of the applicant 's house . On DATE he confessed to the murder .","On DATE the applicant , who had still not been officially charged , participated as a witness in a reconstruction of the crime scene . In the course of the reconstruction he showed in detail how he had killed Mr K.","On DATE an ambulance was called again and the applicant was transferred to the detoxification centre , where he was diagnosed as suffering from \u201c psychotic and behavioural disorders , [ a ] state of delirious withdrawal from alcohol , [ and ] hallucinations \u201d . In addition , he was found to have sustained haemorrhages on his shoulders , legs and buttocks . On DATE the applicant was returned to the police station .","By DATE the applicant had obtained a lawyer in connection with possible murder charges against him , had retracted his confession DATE alleging that it had been given under duress DATE and had denied any involvement in the killing of Mr K.","At TIME on DATE the applicant was released following the expiration of the term of his detention .","At TIME on DATE the applicant was arrested again on a charge of having committed a breach of the peace ( in particular , for urinating in public and swearing ) and , pursuant to a court order issued on DATE , was again remanded in custody for DATE starting from the date of his arrest .","On DATE he was released .","On DATE the applicant underwent a medical assessment in the course of which he was found to be suffering from CARDINAL surface wounds ( on the left shoulder and the left buttock ) which qualified as minor bodily injuries .","On DATE , following complaints by his girlfriend about his aggressive behaviour , the applicant was arrested for the third time on a charge of disobeying a police officer and remanded in custody for DATE by a court order issued on DATE . On DATE the applicant was released .","On DATE the applicant was admitted to hospital on account of his complaints of general weakness , vertigo , pain in the legs and chest , unpleasant sensations inside his anus , constipation and coughing . Based on his complaints , he was diagnosed as suffering from a combination of haemorrhoids , ulcers , several other digestive disorders , pyelonephritis , asthenia and the after - effects of bodily contusions . The applicant remained in hospital until DATE .","NORP In DATE the criminal proceedings against the applicant were discontinued for want of evidence of his involvement in the murder of Mr K.","In DATE the applicant underwent a fresh medical assessment in respect of his injuries sustained in DATE . Following an assessment of the medical documents and the applicant 's state of health at the material time , the panel of experts conducting the assessment concluded that it was not improbable that on or DATE he had sustained minor bodily injuries ( bruises and abrasions on his buttocks , shoulders and legs ) . However , noting the lack of detail in the relevant records , the experts were unable to assess the means by which the injuries had been inflicted . They further found no objective evidence of any mechanical intrusion into the applicant 's anus , no causal connection between the above injuries and other health disorders ( including the applicant 's haemorrhoids , digestive and kidney problems , which had been found to have probably developed prior to his detention ) and noted that the diagnosis of DATE concerning the after - effects of bodily contusions had been subjective and unsupported by any evidence .","In DATE the applicant was examined by specialists from ORG Disabled , who refused to grant him invalid status . However , the panel of specialists diagnosed him as suffering from a number of chronic physical conditions ( including haemorrhoids , ulcers , hepatitis and myocardiopathy ) as well as from the \u201c after - effects of a head injury sustained in DATE in the form of arachnoiditis \u201d ( inflammation of a membrane surrounding and protecting the nerves of the central nervous system ) .","NORP The applicant was subsequently awarded invalidity status on account of the above illnesses .","On DATE the applicant died of acute heart and pulmonary failure aggravated by bronchopneumonia .","On DATE and DATE PERSON complained to ORG that DATE her son had been ill - treated by police officers in order to extract a confession of PERSON murder from him . In particular , they had beaten him , hung him from a pipe while handcuffed and inserted a truncheon into his anus .","On DATE the acting chief of ORG rejected her complaints as unsubstantiated . He noted , in particular , that the applicant had given a vague and inconsistent account of the purported ill - treatment and was unable to identify the police officers involved or the location in which he had supposedly been ill - treated .","On DATE the chief of ORG , having conducted a further investigation following PERSON GPE 's subsequent complaints , discovered that the applicant 's and the police officers ' respective accounts of events could not be reconciled . In particular , according to the applicant , CARDINAL unidentified police officers had severely beaten him and stuck objects into his anus , demanding that he confess to the killing . The investigator in PERSON case admitted having questioned the applicant about the killing , but denied that any pressure had been applied to him . The ORG transferred the investigation materials to the prosecutor 's office for further enquiries .","On several occasions ( DATE , DATE and CARDINAL DATE ) ORG refused to institute criminal proceedings in respect of the applicant 's complaints of illtreatment , having found no evidence of any wrongdoing by the police .","These decisions were subsequently annulled by the supervising prosecutorial authorities ( on DATE , CARDINAL May and DATE ) , finding that : the enquiries had been insufficient ; various important witnesses had not been questioned ; inconsistencies between various testimonies had not been reconciled ; medical evidence had not been duly collected and examined ; and no plausible explanation for the applicant 's injuries had been proposed .","On DATE ORG again refused to institute criminal proceedings . The applicant was not informed about this decision .","On DATE , following enquiries made by PERSON , she obtained a full copy of the decision of DATE and subsequently appealed against it on the applicant 's behalf to ORG .","On DATE ORG allowed the applicant 's claims and set aside the decision of DATE . It found , in particular , that the investigation had failed to analyse the conclusions of the medical assessment completed in DATE and to question several important witnesses ( specifically , the applicant 's fellow inmates ) .","On DATE ORG took a fresh decision not to institute criminal proceedings .","On DATE ORG set aside the above decision , having found that its previous instructions had not been properly followed .","On DATE , having questioned several additional witnesses , ORG decided that the applicant 's injuries had been caused by a fall related to an epileptic seizure resulting from the excessive consumption of alcohol .","On DATE ORG set aside this decision , having found that several important witnesses ( specifically , the applicant 's fellow inmates ) had still not been questioned .","On DATE and DATE the prosecutor 's office took fresh decisions not to institute criminal proceedings into the applicant 's alleged ill - treatment which were set aside by the supervising prosecutors on DATE and DATE respectively , each decision making reference to there having been insufficient investigation of the matter .","On DATE a fresh decision not to institute criminal proceedings was taken , relying , in particular , on the impossibility of collecting further evidence because of the death or relocation of numerous witnesses , the inability of the remaining witnesses to recall details and the destruction of relevant documentary records .","On DATE the ORG set aside this decision following an appeal by PERSON . The court noted , in particular , that the case file contained CARDINAL reports concerning the applicant 's arrest on DATE which had been made by CARDINAL different police officers and instructed the investigator to clarify the situation .","On DATE the ORG annulled a further decision of the prosecutor 's office not to institute criminal proceedings , dated DATE , having found that the situation relating to the arrest reports had not been clarified and that no determination of why the applicant had been questioned about PERSON murder during his detention and the circumstances in which he had suffered bodily injuries had taken place .","On DATE a fresh decision was taken not to institute criminal proceedings . The investigating authorities noted , inter alia , that the applicant 's accounts of the relevant events had been inconsistent and that on several occasions he had changed his story . In particular , he had initially alleged that he had been beaten by a rubber truncheon but subsequently insisted that the officers had punched and kicked him . In addition , on DATE he had asserted that he had no claims against the police at all and did not share his mother 's view about the necessity of an investigation .","On DATE ORG upheld the above decision .","PERSON appealed , noting , in particular , that in addition to its failure to establish those responsible for her son 's injuries , the investigation had failed to reconcile a number of factual inconsistencies . For instance , according to the relevant records , an ambulance was first called to the police station to assist the applicant at TIME on DATE , whereas according to both the reports concerning the applicant 's arrest and the court decision of DATE , the applicant had not been arrested until TIME Furthermore , according to statements by PERSON , the applicant 's acquaintance , she had already seen the applicant in the police station at TIME on DATE and had also witnessed an ambulance arriving to help him twice on DATE .","On DATE ORG quashed ORG ruling , set aside the decision of CARDINAL DATE and remitted the complaint of ill - treatment for further investigation . The court noted that previous instructions of judicial authorities had not been followed and ordered that the investigation determine , in particular : ( i ) where , in what circumstances , and by whom bodily injuries had been inflicted on the applicant \u201c having regard to the fact that on DATE he had been examined by a doctor who had not recorded any injuries \u201d ; ( ii ) why there were CARDINAL different reports on the applicant 's arrest ; ( iii ) why the applicant had been questioned as a witness about PERSON murder while detained in custody for an unrelated administrative offence ; and ( iv ) why he had confessed to a killing of which he had been innocent . ORG also ordered that the statements of PERSON concerning the circumstances in which she had seen the applicant on DATE be re - examined .","According to the case file , the investigation of the applicant 's complaint of ill - treatment is currently pending .","The relevant domestic law can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57534","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1979,"docname":"CASE OF MARCKX v. BELGIUM","importance":2,"conclusion":"Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 14+P1-1;Non-pecuniary damage - finding of violation sufficient","judges":"","text":["PERSON was born on DATE at Wilrijk , near GPE ; she is the daughter of PERSON , a NORP national , who is unmarried and a journalist by profession .","PERSON duly reported PERSON \u2019s birth to the ORG registration officer who informed LOC ( juge de paix ) as is required by LAW ( \" LAW \" ) in the case of \" illegitimate \" children .","On DATE , the District Judge of the first district of GPE summoned PERSON to appear before him ( Article CARDINAL ) so as to obtain from her the information required to make arrangements for PERSON \u2019s guardianship ; at the same time , he informed her of the methods available for recognising her daughter and of the consequences in law of any such recognition ( see paragraph CARDINAL below ) . He also drew her attention to certain provisions of LAW , including LAW which concerns \" exceptional \" forms of inheritance ( successions \" irr\u00e9guli\u00e8res \" ) .","On DATE , PERSON recognised her child in accordance with LAW . She thereby automatically became PERSON \u2019s guardian ( Article CARDINAL bis ) ; the family council , on which the sister and certain other relatives of PERSON sat under the chairmanship of the District Judge , was empowered to take in PERSON \u2019s interests various measures provided for by law .","On DATE , PERSON adopted her daughter pursuant to LAW . The procedure , which was that laid down by ORG CARDINAL to CARDINAL , entailed certain enquiries and involved some expenses . It concluded on DATE with a judgment confirming the adoption , the effect whereof was retroactive to the date of the instrument of adoption , namely CARDINAL DATE .","At the time of her application to the Commission , Ms. PERSON \u2019s family included , besides PERSON , her own mother , Mrs. PERSON , who died in DATE , and a sister , Mrs. PERSON .","The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an \" illegitimate \" child and on the effects of establishing such affiliation as regards both the extent of the child \u2019s family relationships and the patrimonial rights of the child and of his mother . The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights .","Under NORP law , no legal bond between an unmarried mother and her child results from the mere fact of birth : whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman \u2019s children ( LAW ) , the maternal affiliation of an \" illegitimate \" child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose ( action en recherche de maternit\u00e9 ) .","Nevertheless , an unrecognised \" illegitimate \" child bears his mother \u2019s name which must appear on the birth certificate ( Article CARDINAL ) . The appointment of his guardian is a matter for the family council which is presided over by the District Judge .","Under Article CARDINAL , recognition , \" if not inserted in the birth certificate , shall be effected by a formal deed \" . ORG is declaratory and not attributive : it does not create but records the child \u2019s status and is retroactive to the date of birth . However , it does not necessarily follow that the person effecting recognition is actually the child \u2019s mother ; on the contrary , any interested party may claim that the recognition does not correspond to the truth ( LAW ) . Many unmarried mothers - PERCENT according to the Government , although the applicants consider this an exaggerated figure - do not recognise their child .","Proceedings to establish maternal affiliation ( action en recherche de maternit\u00e9 ) may be instituted by the child within DATE from his attainment of majority or , whilst he is still a minor , by his legal representative with the consent of the family council ( ORG CARDINAL of LAW ) .","The establishment of the maternal affiliation of an \" illegitimate \" child has limited effects as regards both the extent of his family relationships and the rights of the child and his mother in the matter of inheritance on intestacy and voluntary dispositions .","In the context of the maternal affiliation of an \" illegitimate \" child , NORP legislation does not employ the concepts of \" family \" and \" relative \" . Even once such affiliation has been established , it in principle creates a legal bond with the mother alone . The child does not become a member of his mother \u2019s family . The law excludes it from that family as regards inheritance rights on intestacy ( see paragraph CARDINAL below ) . Furthermore , if the child \u2019s parents are dead or under an incapacity , he can not marry , before attaining the age of CARDINAL , without consent which has to be given by his guardian ( LAW ) and not , as is the case for a \" legitimate \" child , by his grandparents ( LAW ) ; the law does not expressly create any maintenance obligations , etc . , between the child and his grandparents . However , certain texts make provision for exceptions , for example as regards the impediments to marriage ( Articles CARDINAL and CARDINAL ) . According to a judgment of CARDINAL DATE of ORG ( Pasicrisie I , DATE , pp CARDINAL - CARDINAL ) , these texts \" place the bonds existing between an illegitimate child and his grandparents on a legal footing based on the affection , respect and devotion that are the consequence of consanguinity ... ( which ) creates an obligation for the ascendants to take an interest in their descendants and , as a corollary , gives them the right , whenever this is not excluded by the law , to know and protect them and exercise over them the influence dictated by affection and devotion \" . ORG deduced from this that grandparents were entitled to a right of access to the child .","A recognised \" illegitimate \" child \u2019s rights of inheritance on intestacy are less than those of a \" legitimate \" child . As appears from ORG CARDINAL , CARDINAL , CARDINAL to CARDINAL , CARDINAL , CARDINAL , CARDINAL to CARDINAL and CARDINAL of the Civil Code , a recognised \" illegitimate \" child does not have , in the estate of his parent who dies intestate , the status of heir but solely that of \" exceptional heir \" ( \" successeur irr\u00e9gulier \" ) : he has to seek a court order putting him in possession of the estate ( envoi en possession ) . He is the sole beneficiary of his deceased mother \u2019s estate only if she leaves no relatives entitled to inherit ( LAW ) ; otherwise , its maximum entitlement - which arises when his mother leaves no descendants , ascendants , brothers or DATE is DATE of the share which he would have taken if \" legitimate \" ( LAW . Furthermore , his mother may , during her lifetime , reduce that entitlement by CARDINAL . Finally , Article CARDINAL denies to the \" illegitimate \" child any rights on intestacy in the estates of his mother \u2019s relatives .","Recognised \" illegitimate \" children are also at a disadvantage as regards voluntary dispositions , since Article ORG provides that they \" may receive by disposition inter vivos or by will no more than their entitlement under the title \u2018 ORG on Intestacy\u2019 \" .","Conversely , the mother of such a child , unless she has no relatives entitled to inherit , may give in her DATE or bequeath to him only part of her property . On the other hand , if the child \u2019s affiliation has not been established , the mother may so give or bequeath to him the whole of her property , provided that there are no heirs entitled to a reserved portion of her estate ( h\u00e9ritiers r\u00e9servataires ) . The mother is thus faced with the following alternative : either she recognises the child and loses the possibility of leaving all her estate to him ; or she renounces establishing with him a family relationship in the eyes of the law , in order to retain the possibility of leaving all her estate to him just as she might to a stranger .","If the mother of a recognised \" illegitimate \" child remains unmarried , she has but CARDINAL means of improving his status , namely , \" simple \" adoption . In such cases , the age requirements for this form of adoption are eased by Article CARDINAL para . CARDINAL , sub - paragraph CARDINAL , of LAW . The adopted child acquires over the adopter \u2019s estate the rights of a \" legitimate \" child but , unlike the latter , has no rights on intestacy in the estates of his mother \u2019s relatives ( LAW ) .","Only legitimation ( Articles CARDINAL - CARDINAL ) and legitimation by adoption ( Articles CARDINAL - CARDINAL ) place an \" illegitimate \" child on exactly the same footing as a \" legitimate \" child ; both of these measures presuppose the mother \u2019s marriage .","GPE has signed , but not yet ratified , LAW of DATE on ORG , which was prepared by ORG and entered into force on DATE . Neither has GPE yet ratified , nor even signed , LAW DATE on ORG born out of PERSON , which was concluded within ORG and entered into force on DATE . Both of these instruments are based on the principle \" mater semper certa est \" ; the second of them also regulates such questions as maintenance obligations , parental authority and rights of succession .","However , ORG submitted to the ORG on DATE a PERSON to which they referred the ORG in their memorial of DATE and subsequently at the hearings on DATE . The official statement of reasons accompanying the PERSON , which mentions , inter alia , LAW and DATE cited above , states that the PERSON \" seeks to institute equality in law between all children \" . In particular , maternal affiliation would be established on the mother \u2019s name being entered on the birth certificate , which would introduce into NORP law the principle \" mater semper certa est \" . ORG by an unmarried mother would accordingly no longer be necessary , unless there were no such entry . Furthermore , LAW would confer on children born out of wedlock rights identical to those presently enjoyed by children born in wedlock in the matter of inheritance on intestacy and voluntary dispositions ."],"violated_articles":["14","8","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110942","languageisocode":"ENG","respondent":"LVA","branch":"CHAMBER","date":2012,"docname":"CASE OF EPNERS-GEFNERS v. LATVIA","importance":3,"conclusion":"No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested on suspicion of aggravated robbery .","On DATE ORG ( ORG apgabaltiesa ) convicted the applicant of aggravated robbery and sentenced him to DATE and DATE imprisonment .","On DATE , on the applicant \u2019s appeal , ORG ( GPE tiesas GPE lietu pal\u0101ta ) upheld in substance the judgment of the first - instance court .","On DATE the ORG of ORG ( PERSON tiesas PERSON ) dismissed the applicant \u2019s appeal on points of law in a preparatory meeting ( r\u012bc\u012bbas s\u0113de ) .","On DATE ORG ( PERSON tiesa ) decided to apply a pre - release scheme to the applicant and ordered his release before the end of his sentence .","On DATE the applicant \u2019s wife gave birth to their son .","On DATE and DATE the applicant received CARDINAL short - term visits from his wife . He also received CARDINAL short - term visits from his aunt during his pre - trial detention .","The applicant was able to receive long - term visits while serving his sentence , starting from DATE . Until his release on DATE the applicant received CARDINAL long - term visits from his wife ; each of these visits lasted for TIME .","According to the Government , the applicant first complained about his dental care on DATE . A prison doctor prescribed pain relieving medication ( Ibuprofen ) and advised him to consult a dentist .","On DATE the applicant complained of toothache to the prison doctor , who prescribed other pain relieving medication ( Analgin ) and advised him to consult a dentist .","On DATE the applicant saw a dentist , who discovered that he had dental caries in CARDINAL tooth . During his examination , the dentist noted that the applicant had CARDINAL missing teeth and the remains of CARDINAL damaged teeth . All in all , he had CARDINAL just healthy teeth . The applicant refused the recommended treatment .","On DATE the applicant again complained of toothache to the prison doctor , who prescribed pain relieving medication ( Analgin ) .","On DATE the applicant was examined by a psychiatrist , who considered that the applicant \u2019s complaints of headaches were related to his dental cavity problems . The doctor advised him to consult a dentist .","On DATE the applicant saw the dentist , who diagnosed him as suffering from periodontal disease ( loose teeth ) . Subsequently , CARDINAL teeth were extracted .","On DATE the applicant lodged a complaint with ORG ( ORG birojs ) , which at the material time was the institution in charge of organising the execution of criminal sentences and the probation system and was supervised by ORG . His complaint was that he had not been receiving appropriate dental care and that he needed dental prosthetics . The applicant \u2019s complaint was transferred to ORG ( PERSON vietu p\u0101rvalde ) for examination .","On DATE ORG informed the applicant that , following his requests , a dentist had made several extractions . This service had been free of charge . It had been established that the applicant had CARDINAL teeth left . It was presumed that he had not taken appropriate care of his teeth prior to his detention . The applicant was informed that dental prosthetics could be provided only at his own expense and that ORG did not allocate any funds to ORG or prisons for this purpose .","On DATE the applicant submitted a complaint to ORG GPE ( Latvijas NORP prezidenta kanceleja ) about his dental care . The applicant \u2019s complaint was transferred to ORG and from there to ORG for examination , which transferred the complaint to ORG .","On DATE ORG informed the applicant that he had already received an answer on DATE as regards his complaint of CARDINAL DATE . It reiterated that dental prosthetics could not be provided free of charge in prisons .","Until DATE the detention of persons in remand prisons was governed by an instruction , which had been approved by the Minister of the Interior on DATE .","Rule CARDINAL of that instruction provided that detainees placed in remand prisons were allowed to receive short - term visits upon approval from the authority conducting the criminal proceedings ( that is , either from the investigating authorities or the court , depending on the stage reached in the proceedings ) .","Rule CARDINAL of that instruction stipulated that detainees placed in remand prisons could receive CARDINAL short - term visit ( up to one hour ) per month from family members and other persons only with written permission from the person or body dealing with the particular criminal case .","In DATE ORG took over the supervision of penitentiary institutions from ORG .","On DATE the Minister of ORG issued an order enacting a transitional instruction on the detention of persons in remand prisons . The instruction entered into force on DATE .","Rule CARDINAL of the transitional instruction provided that detainees could receive CARDINAL short - term visit per month with written permission from the authority dealing with the particular criminal case .","The transitional instruction of the Minister of ORG remained applicable until DATE , when ORG no . CARDINAL ( DATE ) took effect . Subsequently , ORG no . FAC ( DATE ) replaced it as of DATE . Finally , ORG ( PERSON tur\u0113\u0161anas k\u0101rt\u012bbas likums ) took effect on DATE .","On DATE ORG ( PERSON tiesa ) delivered its judgment in case no . DATE on the compliance of the internal regulations on remand prisons ( issued under the authority of the transitional instruction of the Minister of ORG ) with LAW ( PERSON ) . ORG found , among other things , that the transitional instruction as well as the internal regulations on remand prisons had not been made public and that they were internal normative acts ( iek\u0161\u0113jie normat\u012bvie akti ) . As a result , it concluded that some of the rules contained in the internal regulations on remand prisons were unconstitutional , but not those concerning short - term visits .","On DATE the ORG delivered its judgment in case no . DATE on whether the restriction of the duration of short - term visits to TIME for detainees , which emanated from FAC ( in effect since DATE ) , was in compliance with the LAW .","Having examined the ORG \u2019s case - law , the practice of several member ORG , and ORG , ORG found , on the one hand , that there was no obligation for GPE to ensure long - term visits for detainees and that the restriction to receive such visits was compatible with the LAW , namely , with the right to private and family life contained therein . On the other hand , ORG held that the blanket TIME restriction on DATE short - term visits was not proportionate and thus not compatible with the LAW . The restriction was abrogated as of DATE and , since CARDINAL DATE , the relevant provision reads : \u201c detainees have the right to receive visits lasting TIME from their relatives or other persons at least once a month \u201d .","Cabinet Regulation no . CARDINAL ( DATE ) , in force at the material time and effective until DATE , provided as follows :","\u201c CARDINAL . Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by ORG . In addition , ORG , within its budgetary means , shall provide the convicted persons with :","primary , secondary and tertiary ( in part ) medical care ;","emergency dental care ;","examination of health conditions ;","preventive and anti - epidemic measures ;","medication and injections prescribed by a doctor of the institution ;","medical accessories .","Detained persons shall receive medical care in accordance with LAW , excluding planned in - patient treatment .... Detained persons shall be sent to receive in - patient treatment only in acute circumstances . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3","8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100213","languageisocode":"ENG","respondent":"MLT","branch":"ADMISSIBILITY","date":2010,"docname":"GREEN AND FARHAT v. MALTA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants , Ms PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and currently live in GPE , GPE . They were represented before the ORG by Dr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Dr PERSON , Attorney General .","The facts of the case , as submitted by the parties , may be summarised as follows .","Background","The first applicant married PERSON , a NORP citizen , on DATE according to the rites of ORG and in conformity with NORP law .","In DATE she went to GPE . She converted to ORG by means of a declaration . As a result of this declaration the first marriage was deemed to be null and void and consequently she was given permission by a NORP court to marry under the law of GPE .","On DATE she married the second applicant , according to the rites of ORG . The applicants settled in GPE where they established their matrimonial domicile and lived there , lawfully married , for DATE .","In DATE the first applicant went to ORG in GPE and filled in an application requesting registration of her wish to revert to her maiden name , in accordance with LAW . She did not inform ORG that she had divorced PERSON or that she had obtained an annulment of that marriage . On DATE the applicant \u2019s request was granted .","In DATE the applicants returned to GPE to take care of the first applicant \u2019s father . The first applicant made several attempts to register her new marriage under LAW ( see Relevant domestic law ) in accordance with the principle of lex loci contractus . This registration would have allowed the second applicant to reside in GPE without the need for a visa . It would have granted him the status of an exempt person under LAW on the basis that he lived with and was married to a NORP national .","The first applicant based her requests on a document dated DATE and DATE , issued by ORG . According to this document , her previous marriage had been declared null and void upon her conversion to ORG and her marriage to a NORP man .","However , the Director of ORG refused to register the marriage . The first applicant had failed to prove that she had legally released herself from the obligations of her first marriage by providing a court decision demonstrating that it had been annulled or that she had divorced and that her second marriage had not been polygamous , and therefore contrary to NORP public policy . Moreover , she had failed in the alternative to prove that she was domiciled in GPE since she had retained her NORP citizenship and had indeed returned to GPE after DATE .","She was informed that it was necessary for her to prove that , before contracting her second marriage , she had been released from her previous marriage in accordance with the provisions of NORP law regarding capacity to marry ( see section CARDINAL ( b ) of LAW ) . She was therefore advised to produce the exequatur of a NORP court ordering the Director of ORG to register the alleged annulment or divorce obtained , thus allowing him to register her second marriage .","In the meantime the first applicant \u2019s father passed away in DATE . However , the applicants remained in GPE to take care of the first applicant \u2019s mother . Meanwhile , the second applicant \u2019s visa was renewed on a concessionary basis .","On DATE the applicants instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction . Invoking Articles CARDINAL and CARDINAL of the Convention , they claimed that the refusal to register their marriage amounted to a breach of their rights and that NORP marriage law discriminated against ORG . They argued that marriages celebrated anywhere according to the rites of ORG were easily recognised , but not marriages contracted under other religions . Similarly , any annulment of a marriage by ORG ( including the dispensation of the Holy Pontiff and the \u201c LOC \u201d ) was endorsed for NORP under NORP law .","On DATE ORG dismissed the applicants\u2019 claims for non - exhaustion of ordinary remedies as the first applicant had not brought an action before ORG in accordance with section CARDINAL of LAW to prove that her first marriage was null and void . However , the court considered the complaints manifestly ill - founded since she had failed to prove her domicile , which was necessary for CARDINAL of LAW to apply . She was a citizen of GPE and NORP law did not recognise divorce on religious grounds . Indeed , under LAW of LAW , a decision declaring a NORP marriage null and void was not automatically registered . In particular , one of the prerequisites was the participation of the spouses during the proceedings . However , in the present case PERSON was totally unaware of any proceedings . Moreover , it was for the national legislation to lay down rules regarding the validity of marriages in pursuance of the ORG \u2019s public policy , and , therefore , no violation of LAW arise in the present case . Lastly , the court noted that the applicants had failed to prove that they had suffered discrimination vis a vis someone in an analogous situation on one of the grounds mentioned in LAW .","The applicants appealed . By a judgment of DATE ORG upheld the appeal in part . While revoking the part of the judgment dismissing the merits , it reaffirmed that the applicants had failed to make use of the ordinary remedy provided by law , namely instituting proceedings before ORG in its ordinary jurisdiction , which could have ordered the registration of the marriage if the requisite criteria had been fulfilled .","On DATE PERSON , the applicant \u2019s first husband , passed away . On the basis that there were no longer any impediments to the first applicant \u2019s remarriage the applicants attempted to obtain a marriage licence in GPE in order to remarry there . To proceed with such a licence they allegedly were requested to provide proof of a divorce in respect of their marriage contracted in GPE .","In accordance with LAW , LAW of LAW , any marriage of a citizen of GPE drawn up or registered in a foreign country by a competent authority in that country , may , at the request of any interested person and upon the Director of ORG being satisfied of the authenticity of such act , be registered in LOC .","In this respect , LAW reads as follows :","\u201c ( CARDINAL ) The Director shall not receive any act which is not written in clear and legible characters , or which contains abbreviations , or which may appear to him to be otherwise defective or irregular .","( CARDINAL ) In any such case , the act shall be presented by the Director to CARDINAL of the Visitors of notarial acts , who , after hearing , if necessary , the person who had made the act , shall determine the manner in which , according to law , the act is to be drawn up .","( CARDINAL ) The Director may not refuse to receive any act which is countersigned by CARDINAL of the said Visitors . \u201d","LAW \u201c LAW \u201d ) , LAW of LAW , applies to all marriages whether contracted in a civil or religious form . LAW , in so far as relevant reads as follows :","Section CARDINAL","\u201c ( CARDINAL ) A marriage , whether contracted in a civil or in a religious form , shall be valid only if all the provisions of this LAW applicable thereto or to marriage generally are satisfied or observed .","Section CARDINAL","Section CARDINAL","A decision of a foreign court on the status of a married person or affecting such status shall be recognised for all purposes of law in GPE if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen . \u201d","In so far as relevant , LAW provides as follows :","Section CARDINAL","\u201c ( CARDINAL ) A marriage celebrated in GPE after the coming into force of this section , in accordance with the norms and formalities established by ORG , shall as from the moment of its celebration , be recognised and have the same civil effects as a marriage celebrated in accordance with the norms and formalities of this LAW .","Section CARDINAL","( CARDINAL ) A decision which has become executive , given by a tribunal , and declaring the nullity of a NORP marriage shall , where one of the parties is domiciled in , or a citizen of , GPE , and subject to the provisions of section CARDINAL , be recognised and upon its registration in accordance with the said section CARDINAL , shall have effect as if it were a decision by a court and which has become res judicata .","Section CARDINAL","( CARDINAL ) Registration of a decision as referred to in section CARDINAL shall be effected by ORG .","...","( CARDINAL ) ORG registers that decision by giving a decree declaring the decision enforceable in GPE ; such decree shall not be given unless ORG is satisfied that :","( i ) the ORG was competent to judge the case of nullity of the marriage insofar as the marriage was a NORP marriage ; and","( ii ) during and in the proceedings before the ORG there was assured to the parties the right of action and defence in a manner substantially not dissimilar to the principles of LAW ; and","( iii ) there does not exist a contrary judgment binding the parties pronounced by a court , and which has become res judicata , based on the same grounds of nullity ; and","( iv ) in the case of a marriage celebrated in GPE after CARDINAL DATE , there has been delivered or transmitted to ORG the act of marriage laid down by this LAW ; and ...","Section CARDINAL","A decree given by the NORP Pontiff \" super matrimonio rato et non consummato \" , when CARDINAL of the spouses is domiciled in or is a citizen of GPE , shall , subject to the provisions of section CARDINAL , be recognised and upon its registration in accordance with the said section CARDINAL , shall have effect as if it were a decision given by a court and which has become res judicata annulling a marriage on the grounds of non - consummation , in accordance with section CARDINALA.","Section CARDINAL","...","( CARDINAL ) ( a ) Registration shall be effected by an order of ORG declaring the decree of the NORP Pontiff enforceable in GPE .","( b ) ORG shall register the decree if it is satisfied that it refers to a NORP marriage which was celebrated after the coming into force of this section and either of the spouses is domiciled in or is a citizen of GPE .","Section CARDINAL","In the course of an application under sections CARDINAL and DATE , ORG shall not go into the merits of the case leading to the decision or the decree the registration of which is demanded in the application , but shall limit itself to ascertaining if the requirements of this LAW for the registration requested exist . \u201d","GPE is a party to an agreement with ORG on the recognition of civil effects in respect of canonical marriages and decisions of ecclesiastical authorities and tribunals on such marriages . LAW further provides that the Government may enter into such agreements with other churches , religions or denominations . LAW reads as follows :","Section CARDINAL","( CARDINAL ) The Government may enter into agreements with other churches , religions or denominations regarding the recognition of marriages celebrated in accordance with the rules and norms of that church , religion or denomination , and declarations of nullity or annulment of such marriages by the organs of such church , religion or denomination having authority in accordance with its rules .","( CARDINAL ) Such agreements shall conform substantially to the provisions of the Agreement between the Holy See and GPE . \u201d","LAW , in so far as relevant , reads as follows :","A marriage entered into by CARDINAL non - baptised persons is dissolved by means of ORG in favour of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party , provided that the non - baptized party departs .","The non - baptized party is considered to depart if he or she does not wish to cohabit with the baptised party or to cohabit peacefully without affront to the Creator unless the baptised party , after baptism was received , has given the other a just cause for departing .","In Canon PERSON this refers to the dissolution of a marriage between CARDINAL unbaptised parties , one of whom is later baptised and seeks to marry in the church .","Articles CARDINAL to CARDINAL of ORG ( \u201c COCP \u201d ) , LAW of LAW , deal with the enforcement of judgments of tribunals of countries other than GPE . The provisions read as follows :","Article CARDINAL","\u201c Where regulations of ORG provide , with regard to the matters under this title , in any manner different than in this title , the said regulations shall prevail , and the provisions of this Title shall only apply where they are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations .","Article CARDINAL","Saving the provisions of the NORP Judgments ( Reciprocal Enforcement ) Act , any judgment delivered by a competent court outside GPE and constituting a res judicata may be enforced by the competent court in GPE , in the same manner as judgments delivered in GPE , upon an application containing a demand that the enforcement of such judgment be ordered .","Article CARDINAL","( CARDINAL ) The provisions of the last preceding article shall not have effect :","( a ) if the judgment sought to be enforced may be set aside on any of the grounds mentioned in article CARDINAL ( standard grounds for retrial ) ;","( b ) in the case of a judgment by default , if the parties were not contumacious according to foreign law ;","( c ) if the judgment contains any disposition contrary to public policy or to the internal public law of GPE .","( CARDINAL ) For the purposes of this article , the plea to the jurisdiction of the court by which the judgment was delivered , may be raised in terms of article ORG ) , even though that court may have adjudged upon a plea to its jurisdiction , in the case of any action brought against any person not subject to the jurisdiction of that court by reason of domicile or residence , unless such person had voluntarily submitted to the jurisdiction thereof . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59562","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2001,"docname":"CASE OF AVSAR v. TURKEY","importance":1,"conclusion":"Preliminary objection partially dismissed (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 with regard to lack of effective investigation;Violation of Art. 2 with regard to death of applicant's brother;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Elisabeth Palm","text":["NORP This case concerns , principally , the events between DATE and CARDINAL DATE , when PERSON who had been taken away by armed men was found killed outside ORG . A criminal prosecution brought against CARDINAL village guards and an ex - member of the ORG on DATE culminated recently in a decision of ORG no . CARDINAL of DATE .","The facts being disputed by the parties , the ORG appointed Delegates who took evidence in GPE from CARDINAL to DATE . They heard the following witnesses : Mr PERSON ( brother of the deceased PERSON ) ; Mr PERSON ( cousin of the deceased ) ; PERSON , the lawyer representing the family at the criminal trial ; Mr PERSON , father of the deceased ; Mr PERSON , LOC , Mr PERSON , Mr PERSON and Mr PERSON , the CARDINAL village guards charged in relation to the kidnapping and murder of PERSON ; PERSON , the ex - member of the ORG and confessor , charged in relation to the kidnapping and murder of PERSON ; Mr PERSON , assistant commander of the ORG provincial gendarmerie command in DATE ; Mr PERSON , commander of the ORG provincial central district gendarmerie in DATE ; Mr PERSON , intelligence operations ORG at the provincial central district gendarmerie in DATE ; Mr PERSON , public prosecutor in the criminal trial from DATE to date ; PERSON , public prosecutor who drew up the indictment for the criminal trial .","The transcripts of the oral evidence , together with the documentary evidence provided by the parties to the ORG , have been transmitted to the ORG . Additionally , the ORG have provided the decision of ORG no . CARDINAL of DATE and other documentary materials requested by ORG . This material is summarised below ( Sections C and D ) , as are the submissions by the parties concerning the facts ( Sections A and B ) .","DATE , a large number of disappearances and unexplained killings occurred in the south - east of GPE in the context of counter - insurgency measures against the ORG . The province and city of ORG were particularly notorious for this phenomenon . The involvement of security forces and shadowy gangs linked to elements in the security forces was rumoured and supported , inter alia , by the findings of the GPE report .","The PERSON family was headed by PERSON , who had CARDINAL children . His son PERSON , born in DATE , was married with CARDINAL children , GPE born in DATE and PERSON born in DATE . He , with his brother PERSON and another relative , owned a company which sold fertilisers to farmers . Other brothers included PERSON , who had been arrested and charged with ORG offences and the applicant PERSON who had been convicted and sentenced to DATE imprisonment but had fled to GPE , where in DATE he was NORP correspondent for the PERSON newspaper .","On DATE , PERSON , commander of ORG district gendarmerie instructed CARDINAL village guards to travel to ORG to assist in the detention of CARDINAL suspects . He gave them a car registered DATE . The car which was used by the guards to go to ORG and during their activities in ORG belonged to a person detained for ORG activities and it was given to the guards for their use , though it was later alleged that they had been instructed to deliver it to the gendarmerie in PERSON , ORG . On arrival at the PERSON gendarme station Captain PERSON sent them to the Anti - Terror police to assist in the apprehension of CARDINAL or CARDINAL suspects . These suspects were brought back to the PERSON station , from where they were to be sent on to ORG .","On DATE , at TIME , the CARDINAL village guards entered the fertiliser business premises run by the PERSON family in ORG . They started talking to PERSON and stated that they were going to take him into custody . It was not apparent that they had come for PERSON personally rather than acting with the intention merely of taking away one of the family . When their authority to take PERSON was challenged , they spoke on a walkie - talkie and CARDINAL village guards left to find a police officer . PERSON and a seventh person then arrived . The seventh man acted as if he was in charge and the village guards deferred to him . He was referred to as \u201c m\u00fcd\u00fcr \u201d ( director ) , spoke proper NORP and wore glasses . The QUANTITY men took PERSON from the shop , placing him in a white Toros car . Members of the family ( PERSON and PERSON ) who followed the car saw it enter the district central gendarmerie , PERSON , which was TIME away .","The family made complaints to the authorities , describing and giving , in some cases , the names of the men who had abducted PERSON .","The white car used in the abduction was found on DATE in ORG and returned to ORG , where it was handed over to the family of the owner .","On DATE , an identification parade was held and CARDINAL village guards were identified . The fifth village guard and PERSON were also detained . On DATE , Captain PERSON , in charge of the investigation , carried out a reconstruction of the abduction at the family \u2019s shop . The CARDINAL guards admitted involvement in the abduction and PERSON admitted being present at the abduction but denied involvement in the incident . They denied the presence of any seventh person .","On DATE , PERSON took the gendarme investigators to a disused building QUANTITY from ORG on FAC . PERSON body was found there . He had been shot twice in the head .","On DATE , there was an attempted abduction of CARDINAL ORG cousins in LAW , PERSON and ORG .","On DATE , the trial of the CARDINAL village guards and PERSON opened in ORG no . CARDINAL . In testimony to the court , the village guards partially retracted their pre - trial statements and claimed that a seventh person was present and that he took charge of the detention of PERSON . On several occasions during the trial ( DATE , DATE and DATE ) the village guards testified that they had acted under orders and that the killing and abduction of PERSON had been carried out under the orders of PERSON and a gendarme special sergeant .","From the beginning of the trial , the PERSON family suffered intimidation , resulting in them ultimately closing down their business and moving to GPE . The family \u2019s lawyer PERSON was also intimidated when she attended the trial in GPE .","On DATE , PERSON identified the special sergeant as PERSON , from the CARDINALth ORG corps infantry battalion , code - named PERSON .","At DATE , the GPE report was published , which named PERSON and PERSON in connection with the killing of PERSON . It stated that , amongst various other activities , a gang including PERSON , PERSON , PERSON and a specialist sergeant PERSON were involved in extorting money and that they tried to extort money from ORG using threats against his brother PERSON who was in detention suspected of ORG activities , killing him when he refused to pay . On DATE , the name PERSON was raised in the trial . On DATE , the family \u2019s lawyer requested the court to enquire as whether PERSON had served in ORG in DATE . The court made a request for information to the army authorities . On DATE , the court received the response that PERSON left his duties in the region on DATE . The court referred the file to the public prosecutor for information to be gathered on PERSON and requested a statement be taken from him . On DATE , the lawyer for PERSON requested a confrontation between PERSON and her client .","On DATE , the court convicted the CARDINAL defendants . PERSON was convicted of murder and sentenced to DATE imprisonment while the others were convicted of aiding and abetting and given DATE and CARDINAL months\u2019 imprisonment . PERSON , the prosecutor and the PERSON family appealed against the decision . On DATE , after being informed that PERSON had left his place of residence to go to GPE , the court issued an arrest warrant .","The Government submit that it is premature to make any observation on the facts as firstly , the decision of ORG of DATE is subject to appeal to ORG which has the power to require the first instance court to fill the gaps in the investigation or collect further evidence and , secondly , as the ORG court has in its judgment notified the offence allegedly committed by PERSON to the public prosecutor , who will now carry out an investigation .","This stated that on DATE five armed persons , who said they were village guards , came to the fertiliser business LOC and asked to take away PERSON . CARDINAL more persons came , who made themselves known as security officers . They took PERSON away by force in a white GPE car DATE , with the car CARDINAL following behind . The petitioner and other brothers followed and saw that the cars entered the provincial central gendarme command . PERSON saw the village guards inside the grounds of the gendarmerie . They had learned the names of CARDINAL of the village guards \u2013 \u00d6mer the lame and PERSON . The family was concerned by the way PERSON had been taken and the denials of the authorities that he had been taken into custody . He requested that the necessary proceedings be instituted in respect of the perpetrators .","On DATE , at TIME , CARDINAL armed men came to their workplace to take away PERSON . When they opposed this , the men stated that they were village guards . CARDINAL people came then , who claimed that they were security officers . The CARDINAL men took away PERSON , getting into CARDINAL cars GPE and CARDINAL . He and his brothers followed them to the provincial central gendarmerie . PERSON identified the CARDINAL village guards whom he saw in the grounds . The gendarme commander said that he would carry out the necessary legal procedures . The family was concerned by the way PERSON had been taken and the denials of the authorities that he had been taken into custody . He requested that the necessary proceedings be instituted in respect of the perpetrators .","On DATE , at TIME , CARDINAL men came to the shop , saying that they were policemen . They spoke to PERSON , saying that he had to give a statement on behalf of his brother PERSON who was in custody in GPE prison . PERSON said that they had not given him their identification and that he would be happy to give his statement to a uniformed police officer . There was an argument between the men and the PERSON brothers . The men said that they would call the police station and as a result the brothers heard that they were village guards . CARDINAL more people appeared , claiming to be policemen , speaking NORP and flashing cards . As the argument continued , one of the QUANTITY men pulled a gun , and the others followed suit . As PERSON believed that they were going to shoot , he agreed to go with them . The brothers saw CARDINAL men and PERSON get into a ORG car AFCARDINAL , while the others got into a taxi CARDINAL . The brothers jumped into their own car and followed to the PERSON gendarmerie , where they could not go in after the CARDINAL cars . They could see CARDINAL of the village guards outside the command building . They saw CARDINAL of the men from the shop driving off in a blue car ( CARDINALCDECARDINAL ) . A gendarme denied PERSON was there and they could not get anyone to do anything .","They returned to their shop and phoned the police who said that ORG had not been kidnapped but was at the gendarmerie . They made written petitions to the governor , ORG prosecutor and the judicial prosecutor . All denied that his brother was in custody . Someone called their house , saying that PERSON had been killed and they were all next . They had given up hope of seeing their brother alive .","On DATE , in ORG , armed persons shot at his CARDINAL cousins PERSON and ORG . ORG managed to run away . PERSON was caught , beaten and taken to the ORG gendarme headquarters . Both the police and gendarmes denied to the family that he was in custody . PERSON was released DATE from the gendarme headquarters . Shortly before the trial concerning the killing of his brother PERSON , his family had been threatened by the PERSON gendarmes , who warned that if the family mentioned the gendarmes in court things would get worse for them .","The petitioner was the lawyer acting for the family in the trial against CARDINAL accused for the kidnapping and murder of PERSON . She pointed out that , though the CARDINAL accused had initially denied the involvement of the seventh person , during the trial on DATE the CARDINAL village guards had said that the incident had been carried out on the orders of PERSON and a gendarme officer known as \u201c the director \u201d . Their description of the seventh man corroborated her clients\u2019 account .","Captain PERSON , who had much information about the incident had failed to attend the court under summons although he worked next door to the judicial buildings . She also complained that the CARDINAL ORG brothers had been subject to threats and had been forced to leave ORG . When she came to ORG to attend the trial , she was followed by a car with CARDINAL armed plain clothed men inside . She had reported this to the chairman of the ORG bar . On DATE , as she passed through security control at the airport , a plain clothed man who had followed behind her issued a threat .","The car DATE , taken from PERSON , accused of aiding the ORG and sent to ORG , was at ORG . It was handed over to PERSON , PERSON , ORG and PERSON , who were to deliver it to ORG family at GPE . The document was signed also by the CARDINAL village guards .","This stated that the car DATE had been found in the garden of the ORG gendarme command . On DATE , it had been handed over to PERSON , PERSON , PERSON and PERSON to be taken to the ORG central gendarmerie . It was understood that they had been unable to contact anyone and after waiting for DATE rejoined the convoy coming back to ORG . As it was dark , they left the car in the garden .","The document was also signed by the CARDINAL village guards .","The first recorded the transfer of car DATE from a ORG officer to an officer from the ORG central gendarmerie . The second recorded that the owner of the car PERSON received it from the gendarmerie in perfect condition .","On DATE , at TIME , QUANTITY persons entered the business LOC of the PERSON brothers from car DATE . They told PERSON that they would take him away . PERSON told them that his brother would not go until the police arrived . CARDINAL more men entered , making a total of CARDINAL . The men pulled guns out when they opposed them . They took his brother , got into CARDINAL cars and drove to court buildings . The brothers , who followed , told the gendarmes . CARDINAL gendarme asked if he could identify the individuals and he went up to the building and pointed to CARDINAL men , whom he learned were village guards . He identified a fourth man , getting out of a car in the yard . When the brothers approached the gendarme commander , he said that the village guards would be handed over to security officials . The gendarmes said however that PERSON was not at the gendarmerie .","On DATE , at TIME , QUANTITY persons entered the business LOC of the PERSON brothers from car DATE , wanting the brothers to make a statement at the justice buildings about his brother PERSON who was involved with the ORG and in prison . He told them that this was not possible . The men said that they were village guards . He said no - one would go until the police arrived . CARDINAL more men entered , saying that they were police officers . When they objected , CARDINAL men pulled their guns and said that they would take CARDINAL of the brothers away , randomly pulling at ORG . CARDINAL men and PERSON got into a car with a wireless and weapon inside . CARDINAL other men got into a second car . He remained in the shop while his other brothers followed the cars to PERSON , where the provincial central gendarmerie is at the entrance of the court building . His brothers reported immediately to gendarmes that CARDINAL village guards , present at that time , had taken their brother . The gendarmes , a duty ORG and an ORG called LOC said that they would refer the village guards to security . His brothers left . They later found the names of CARDINAL of the village guards , \u00d6mer and PERSON .","On DATE , TIME , he saw PERSON arguing with someone in the shop . The man wanted him to go with him to give a statement . \u015eerif said he would only go with a police officer . The man went out to a white Toros car ( DATE ) , where there were CARDINAL men , CARDINAL of whom spoke to the police on the radio . In TIME , CARDINAL men came into the shop , introducing themselves as police officers . This man said that CARDINAL of the brothers had to come and make a statement for their brother PERSON . PERSON protested that ORG was in prison and should make his own statement . A quarrel began and CARDINAL more persons came in . The man whom he had described said \u2018 ORG and he and CARDINAL men drew their guns . Then they took PERSON into the LOC car . He described the men in the shop , stating that the one with the radio was called ORG . The CARDINAL men who had claimed to be security officers both spoke NORP properly without a local accent ; the taller one wore sunglasses . He wanted the people who abducted his brother to be found .","NORP On DATE , at TIME , he saw CARDINAL villagers enter their business LOC . He asked what they wanted . A man said that his brother PERSON had to make a statement at PERSON court building but as he was in prison CARDINAL of his brothers should come to make a statement instead . The witness objected that they could not make a statement for ORG . The man claimed that they were security personnel . The witness asked him to show his ORG and then said that he would phone the police . At this point , CARDINAL persons came inside to join the QUANTITY villagers . There were CARDINAL men outside in a white GPE car DATE , who also came inside , making CARDINAL . CARDINAL of the men drew guns and forced the brothers against a wall , threatening to kill them . PERSON then said that he would go with them . The CARDINAL men took his brother and left in CARDINAL cars . The witness and others followed in their own car but could not find their brother . They went to the police station , gave their statements and after TIME were told that PERSON was with the gendarmes . They also gave a petition to the public prosecutor and to the gendarmes at PERSON . The gendarmes said that PERSON was not there . When the brothers told this to the police , the police said that they must have misunderstood the matter .","The witness gave detailed descriptions of the men in the shop . He described CARDINAL of the men who claimed to be a security official as speaking very proper NORP , clean - shaven with sunglasses .","On DATE , at TIME , QUANTITY persons in villagers\u2019 clothes entered their shop . TIME , CARDINAL more men entered . The witness was outside in the kiosk and when he heard quarrelling , he went inside . The men were arguing with his elder brother PERSON . The witness did not understand what was going on . CARDINAL of the men pulled a gun on him . The brothers were made to stand against the wall . PERSON said that he would go with them . He and CARDINAL men got into a white car DATE and the others got into a taxi CARDINAL . After TIME , the brothers drove to the PERSON court building , which was where the men had told PERSON they were going . The men had said that they were security personnel . The brothers saw the taxi driver of the second car and he told them that he had taken the men to the PERSON court building . When they got there , they could not see their brother though they saw CARDINAL of the abductors sitting by the fountain . They told this to a gendarme who said that it was not their business and that village guards were within the jurisdiction of the gendarmes . The witness told an ORG in front of the gendarmerie building that the abductors of his brothers were there DATE he could see CARDINAL in the gendarmerie . The brothers were told to go and that if the persons had abducted their brother , they would be handed to the police .","The witness gave a description of the men in the shop . CARDINAL wore sunglasses and spoke NORP properly without a local accent . They had seen one of the abductors leaving the gendarmerie in a blue or black car GPE while they were waiting at the front of the gendarmerie .","The witness , a village guard from PERSON village , was asked about the alleged abduction of PERSON by village guard CARDINAL the lame and other LOC . The witness denied any involvement . He said that PERSON could only walk with the help of crutches and was too disabled to be involved .","The witness , the muhtar and head village guard of PERSON village , was asked about the alleged abduction of PERSON by village guard CARDINAL the lame and other LOC . The witness denied any involvement . He said that his son PERSON was disabled and certainly could not be involved .","The report referred to CARDINAL armed persons , who claimed to be security personnel , having abducted PERSON from his shop . The investigation indicated that among the perpetrators were village guards PERSON , PERSON , GPE and GPE . CARDINAL persons were gathered for an identification parade including these persons . The brothers PERSON , PERSON and PERSON were present .","PERSON identified PERSON , GPE and PERSON . PERSON identified PERSON , definitely , and PERSON , less certainly . PERSON identified PERSON .","This informed the public prosecutor that PERSON , PERSON , PERSON and PERSON had been identified and that PERSON and PERSON had also been detained on suspicion of involvement . It requested an extension in custody in order to complete the investigation .","This described a reconstruction of the incident at the ORG business LOC . GPE , PERSON and PERSON entered the shop and said that on DATE they had gone in and asked if this was the shop of ORG . They said that they were security personnel and that CARDINAL of the brothers should come with them to make a statement at the PERSON court building in PERSON \u2019s place . The people in the shop did not believe them and would not go unless the police came . They said that they would bring the police . Meanwhile , ORG and PERSON were outside by a car . They said that they never went inside the shop and showed where they waited . PERSON had come along from outside and said , \u201c I am a policeman . Do what these people want . \u201d As the brothers were not convinced , PERSON , PERSON , PERSON and PERSON pulled out their guns . They acted this out . Then the victim had said that he would come . PERSON and PERSON took him by the arms . The accused said that PERSON , PERSON and ORG got into the car DATE with the victim , while the other CARDINAL accused got into a cab that was passing .","The witnesses ( PERSON , PERSON and PERSON ) were asked if they agreed with this description of the event . They said that there was another man , in addition to these CARDINAL accused , whom they described , inter alia , as speaking NORP without an accent .","The vehicle DATE belonged to this witness . His son had driven it to ORG on DATE and had been apprehended and taken to ORG to be questioned . The car remained at ORG gendarmerie . The witness took delivery of it from ORG on DATE .","The suspect was asked to submit his defence to the charge that he , along with CARDINAL friends , had kidnapped PERSON .","The suspect said that on DATE he arrived in GPE with his friends PERSON , PERSON , PERSON and PERSON . They had the duty to deliver a car CARDINAL<A > FCARDINAL to the central gendarme command . PERSON joined them later . When they arrived , they helped anti - terror police apprehend CARDINAL men wanted by ORG gendarmerie . The village guards were to deliver them to ORG . They spent TIME in PERSON gendarmerie at a place used for village guards . On DATE , they went to the shopping district in the car . PERSON pointed out the ORG shop and said that PERSON , brother of ORG , was in contact with the ORG and that they should apprehend him to take along with the others . They met PERSON at this point and he went along with them to the shop .","Inside the shop , they introduced themselves as security officials . There were CARDINAL of them , CARDINAL else was with them . After taking PERSON , the suspect , PERSON and PERSON went in the car CARDINAL<A > FCARDINAL towards the PERSON court buildings . PERSON told PERSON they would hand him over to ORG . PERSON said that he knew where PERSON brother was buried and that he would show them . He said that he should not be handed over but that they could go together to ORG and look for PERSON brother . PERSON agreed . They picked up PERSON and PERSON who arrived in another car and they went off towards ORG . After a while , some of the guards , including this suspect , doubted that they had the authority to go to ORG and decided to go back . They left PERSON and PERSON by some ruined buildings to fetch another car . They could not find one . When they went back to find PERSON and PERSON at TIME , they found PERSON crying by the roadside . He said that he had accidentally shot PERSON . They all panicked . PERSON threw the gun into the river and they drove back to ORG . They left the CARDINAL suspects with the soldiers who came in the convoy from Hazro and made an excuse to leave . They deposited the car DATE somewhere near the ORG gendarmerie and returned to their villages .","He had thought that they were going to hand PERSON over to the gendarmes . He had not wanted the incident to end as it did . No official authority had ordered them to apprehend PERSON . He acknowledged that the unlicensed gun found at his address was his and used in the abduction .","The suspect was asked to submit his defence to the charge that he , along with CARDINAL friends , had kidnapped PERSON .","The suspect said that on DATE when he went to NORP district gendarmerie to get permission to go to ORG for personal reasons , he met fellow village guards PERSON , PERSON and PERSON , who also wanted to go to ORG . The NORP gendarme commander gave them permission and told them to deliver a car DATE . They met PERSON after taking the car and he joined them . In ORG they reported to PERSON gendarme command but kept the car . They used it for shopping and also to help anti - terror police to apprehend CARDINAL suspects ( PERSON , PERSON , PERSON and PERSON ) , whom they were to take back to ORG . TIME they stayed in the PERSON guesthouse for village guards . On DATE , they went to the shopping district in the car . PERSON pointed out the ORG shop and said that PERSON was in contact with the ORG and might know where the ORG had buried the body of his murdered elder brother . He suggested that they apprehend him and take him along with the others . PERSON , whom they knew before , came up and went with them to the shop .","As the village guards did not know PERSON , they said that CARDINAL of the ORG brothers had to come to PERSON to make a statement for their brother PERSON . When they objected , the suspect went outside to call the police . However PERSON who had been outside , came in and tried to convince them . There was an argument . With threats and persuasion , they took PERSON away . The suspect thought they were going to take him to be detained with the other CARDINAL suspects . PERSON , PERSON and himself left in a taxi , while the others left in the white Toros car . PERSON got off at ORG . He and PERSON got out in front of the judiciary building , where the white car also arrived . PERSON said that ORG had agreed to go to ORG . They all got into the car and started towards ORG . After a while , some of the village guards doubted that they had the authority to go to ORG and recalled that they were to deliver the car . They decided to go back and hire CARDINAL cars so PERSON could go on to Lice . They left PERSON and PERSON by some ruined buildings . They could not find any cars . When they went back , they found PERSON crying by the roadside . He said that he had accidentally shot PERSON . They panicked and drove back to ORG . They left the CARDINAL suspects with the soldiers who came in the convoy from Hazro and made an excuse to leave . They deposited the car DATE somewhere near the ORG gendarmerie and returned to their villages .","He had not wanted the incident to end as it did . No official authority had ordered them to apprehend PERSON . He acknowledged that the licensed gun found at his address was his and that he carried it during the abduction .","The suspect was asked to submit his defence to the charge that he , along with CARDINAL friends , had kidnapped PERSON .","The suspect said that on DATE when he went to NORP district gendarmerie to get permission to go to ORG for personal reasons , he met fellow village guards GPE , PERSON and PERSON , who also wanted to go to ORG . The NORP gendarme commander gave them permission and told them to deliver a car DATE . They met PERSON after taking the car and he joined them . In ORG they reported to PERSON gendarme command but kept the car . They went shopping and also helped anti - terror police to apprehend CARDINAL suspects , whom they were to take back to ORG . TIME they stayed in the PERSON guesthouse for village guards , as well as guarding the suspects . On DATE , they went to the shopping district again . PERSON pointed out the ORG shop . He said that PERSON was connected with the terrorists and might know where the ORG had buried the body of his murdered elder brother . He suggested that they apprehend him and send him for interrogation . PERSON , who had previously been in the ORG , came up and agreed to help them apprehend PERSON .","The CARDINAL men \u2013 CARDINAL else was involved DATE went to the shop , introducing themselves . As they did not know PERSON , they said that any one of the brothers should come . PERSON , PERSON and himself left in a taxi , while the others left in the white Toros car . PERSON got off at ORG . He and PERSON got out in front of the judiciary building , where the white car also arrived . PERSON said that ORG had agreed to go to ORG to help to find his brother \u2019s body . They all got into the car and started towards ORG . After a while , some of the village guards thought this might be dangerous and remembered that they had no permission to go to ORG . They decided to go back and hire CARDINAL cars so PERSON could go on to Lice . They left PERSON and PERSON by some ruined buildings . They could not find any cars . When they went back , they found PERSON in a sad state . He said that he had accidentally shot PERSON , who had attempted to run away and attack him . They panicked and drove back to ORG . They handed over the CARDINAL suspects to the soldiers who came in the convoy from ORG and made an excuse to leave . They deposited the car DATE somewhere near the ORG gendarmerie and returned to their villages .","He had thought PERSON was going to be handed over for proceedings . No official had ordered them to apprehend PERSON . He acknowledged that the licensed gun found at his address was his and that he was carrying it during the abduction .","The suspect was asked to submit his defence to the charge that he , along with CARDINAL friends , had kidnapped PERSON .","The suspect said that on DATE he and fellow village guards GPE , PERSON and PERSON were given a car by ORG gendarme commander to deliver to ORG . PERSON joined them . In ORG they reported to PERSON gendarme command but kept the car . They went shopping and also helped anti - terror police to apprehend CARDINAL suspects , involved in incidents in LOC , whom they were to take back to ORG . He named the CARDINAL suspects . TIME they stayed in the PERSON guesthouse for village guards . On DATE , they went to the shopping district again . PERSON pointed out the ORG shop . He said that PERSON was connected with the terrorists and that if they apprehended him , he might be able to find the body of his brother . They met PERSON , whom they knew from Hazro and he came with them . They apprehended PERSON as shown in the reconstruction .","The suspect , PERSON and PERSON were in the LOC car with PERSON . PERSON told PERSON that he would be interrogated to disclose where his brother was buried . PERSON proposed that they did not take him for interrogation and offered to help PERSON find the body in ORG . PERSON suggested that he should go to ORG with PERSON . They arrived in front of the judiciary building , where PERSON and ORG arrived in a taxi . They all got into the Toros car and started towards ORG . After a while , some of the village guards thought this might be dangerous and remembered that they had no permission to go to ORG . They decided to go back and hire CARDINAL cars so PERSON could go on to Lice . They left PERSON and PERSON by some ruined buildings . They could not find any cars . When they went back , they found PERSON crying by the road . He said that he had accidentally shot PERSON . They panicked and drove back to ORG . They handed over the CARDINAL suspects to the soldiers who came in the convoy from ORG and made an excuse to leave . They deposited the car DATE somewhere near the ORG gendarmerie and returned to their villages .","He had thought PERSON was going to be handed over to the gendarmerie . No official authority had ordered them to apprehend PERSON .","DATE . The suspect was asked to submit his defence to the charge that he , along with CARDINAL friends , had kidnapped PERSON .","The suspect said that on DATE he was going to the Trafik tea gardens when he met PERSON and PERSON whom he knew from ORG . They were with CARDINAL other village guards . They told him that they were on duty and were going to apprehend PERSON . While talking , they reached the shop . A few of them entered but he did not as he was not an official . When an argument broke out , he entered and told the people that his friends were officials . The atmosphere was tense and several of the village guards took out their guns . They apprehended someone and left . He got into a taxi with GPE . He got out in front of ORG and did not know where the others went . After TIME , he went to PERSON gendarmerie to find PERSON but was unsuccessful . That was his only involvement with the incident . He had thought that the village guards had authority to act as they did . Otherwise he would have reported them . Inside the shop , he saw CARDINAL guards and some shop people .","The suspect was asked to submit his defence to the charge that he , along with CARDINAL friends , had kidnapped PERSON .","The suspect said that on DATE he went to NORP district gendarmerie to get permission to go to ORG for personal reasons , including obtaining medical treatment . He came across GPE , PERSON , PERSON and PERSON , who wanted also to go to ORG and were to deliver a car CARDINAL to ORG gendarmerie . He joined them . In the car he told the others that his village PERSON had recently been attacked and that some of the people involved were wanted for other offences were in ORG . After a discussion , they decided it would be appropriate to apprehend those individuals and hand them over to ORG or ORG security people . In ORG they reported to PERSON gendarme command . They went to ORG and explained that they knew where to find certain individuals connected with the terrorists . They went along with police teams and apprehended the CARDINAL individuals . The village guards took delivery of them in order to take them back to ORG . TIME they stayed in the PERSON guesthouse for village guards . On DATE , they went to the shopping district in the white car . They met PERSON , who was known to some of the village guards .","The suspect , who had lost members of his family to the ORG and was himself disabled due to injuries caused by the ORG , had discovered that PERSON was the leader of the group who kidnapped and killed his elder brother . The PERSON family was also in contact with the ORG , especially PERSON who met with the terrorists in ORG . He learned the address of the ORG business LOC and explaining the situation to his friends , proposed to apprehend PERSON . The CARDINAL of them entered the shop at TIME . They introduced themselves as security officials and when an argument broke out , drew their guns . He , PERSON , PERSON and PERSON got into the white car while the others caught a taxi . While taking PERSON to PERSON gendarme command , the suspect told PERSON that he had to help locate his brother \u2019s body or they would hand him over to the court . PERSON pleaded not to be handed over and offered to go to ORG and help him . They arrived at PERSON as did the other guards . PERSON had already got out at ORG . They all got into the white car and started towards ORG . After a while , some of the village guards said that they would be late returning to ORG and decided to go back and hire CARDINAL cars so the suspect could go onto ORG . They left the suspect and PERSON , who was blindfolded , by some ruined buildings . They talked . Then PERSON tried to attack him and run away . The suspect , alone and disabled , fired a few warning shots from his PERSON pistol . PERSON fell down covered in blood . The suspect panicked and ran away to the road , in tears . When his friends returned , he told them an accident had happened . They drove back to ORG , the suspect stopping to throw the gun into the river . They handed over the CARDINAL suspects to the convoy from ORG and made an excuse to leave . They deposited the car DATE somewhere near the ORG gendarmerie and returned to their villages .","He had had no intention of killing PERSON who was going to be handed over for proceedings . There was no official present at the shop other than his CARDINAL friends . No official had ordered them to apprehend PERSON .","As a result of the interrogations of the CARDINAL suspects , it appeared that ORG had been taken to a ruined building QUANTITY away on FAC . The gendarmes sent out a team to the location . According to PERSON , the incident had taken place in front of the south - facing door . A barely visible bloodstain QUANTITY in diameter was found on the doorstep . The victim was not there however , nor did a search disclose any empty cartridges . The victim was found QUANTITY to the south , CARDINAL buried in water in a field , putrefying , with the face unidentifiable . No marks or evidence were found in the vicinity and it was not possible to tell whether he had been killed on the spot or brought there afterwards . Photographs were taken .","PERSON indicated the place at the old dynamite depot , QUANTITY south of the CARDINALth kilometre point on FAC , where he had been left with PERSON . The CARDINAL men had sat on a wall and were talking , when PERSON attacked him and tried to escape . He fired CARDINAL shots with his pistol . He indicated the spot . At the entrance of the building some dried blood was observed . PERSON had fallen on the ground but he did not know if the man was injured or dead as he panicked and ran away . When showed the body lying in the field , QUANTITY south of the building , he could not remember the clothing but it was possible that it was PERSON body . He showed where he threw the gun into the Dicle river .","DATE . The body was identified by PERSON as being PERSON . There was a bullet entry to the right temporal region , with an exit wound to left frontal region , and CARDINAL bullet entry below the left ear and an exit hole on the left cheek bone . Due to absence of burns or soot , both bullets had been shot at a distance . No other injury from physical violence was observed . It was concluded that death occurred from the bullet wounds , either of which would have been fatal , DATE before .","This stated that car , no . CARDINAL , had not been found . It belonged to PERSON , resident in GPE .","This letter enclosed the investigation documents and concluded that the CARDINAL men had admitted their guilt in respect of abducting PERSON and that PERSON had admitted that he had killed him .","On DATE , the NORP gendarme commander had appointed the CARDINAL village guards to apprehend CARDINAL individuals . They set out in car DATE to go to ORG and met PERSON , who joined them . They finished their task in ORG and stayed in the guest house . On DATE , the CARDINAL men went shopping . PERSON pointed out a shop and said that they should apprehend someone there and take him to the gendarmes . PERSON went inside the shop and talked to PERSON , who did not want to come . The suspect and others went into the shop . When PERSON would not go unless the police came , he and PERSON went outside to look for the police . PERSON met someone called PERSON and they went back into the shop . The suspect told the elder brother that they were taking PERSON to the gendarmerie and they could follow . They got into CARDINAL cars and arrived in front of the gendarmerie . PERSON told PERSON that they should take the victim to ORG and not into the gendarmerie . They started out towards ORG . Talking amongst themselves , they thought they might have problems going to ORG without permission and decided to go back . PERSON and PERSON got out to wait for them to return with CARDINAL cars , CARDINAL for them to go onto ORG . The village guards were unable to find any cabs willing to come back with them . They returned to the spot to find PERSON crying . PERSON had attacked him while they were talking and he had shot him .","They returned to the gendarmerie . PERSON begged them not to hand him over . They felt sorry for him . Without returning the car , they went back to ORG and from there to their homes . The suspect had had a gun on him in the shop but did not draw it . No - one drew their guns .","On DATE of the incident , he was going to the Trafik tea gardens to meet friends when he met PERSON whom he knew . PERSON told him that they were going to apprehend someone in the shop nearby . When they arrived in front of the shop , he saw CARDINAL people having an argument . CARDINAL village guards were pointing their weapons . The shop people refused to let anyone go without the police . The village guards said that they were officials and would take them to the gendarmerie . The suspect told PERSON that they could call the police . At this point , CARDINAL village guards took a man outside and got into a white Toros car . He , PERSON and PERSON got into a cab . He got out near a bakers . He was shocked by the incident . When he came to the gendarmerie TIME , he asked the sergeant at the checkpoint if the ORG guards had brought CARDINAL in . He was told that the village guards had brought in CARDINAL men earlier but none since .","The suspect went to ORG and was called by the gendarmerie to take part in an identification parade , where no - one recognised him . He took part in the reconstruction but in fact he had not helped take out the victim as was shown in the photographs . He had only been there because he believed that the guards would hand the man over to the gendarmes .","On DATE , the NORP gendarme commander had appointed the CARDINAL village guards to apprehend CARDINAL individuals . They took PERSON with them . They apprehended the CARDINAL men and delivered them to the gendarmerie . On DATE , the CARDINAL village guards wandered round the shopping district . PERSON pointed out a shop and said that they should apprehend someone there and take him to the gendarmes . The suspect stood outside while the other CARDINAL went inside . PERSON told a man that he had to come . There were CARDINAL other people present . They argued , saying no - one would go unless the police came . The suspect walked off QUANTITY looking for the police . He met PERSON , who said that he would see to the situation and walked into the shop . The suspect stayed outside and heard nothing . Shortly after , the guards came outside with PERSON . PERSON , PERSON , PERSON and PERSON got into the car to go to PERSON gendarmerie . PERSON , PERSON and himself got into a cab . PERSON got out on the way . When they arrived by the fountain , PERSON told PERSON that they would go to ORG . They started out towards ORG . Talking amongst themselves , they thought they might have problems going to ORG without permission and decided to go back . PERSON and PERSON were to wait by an old building for them to return with CARDINAL cars , so that they could continue to ORG . They were unable to find any cabs willing to come back with them . They returned to the spot to find PERSON crying . PERSON had attacked him while they were talking and he had shot and killed him .","They returned to the gendarmerie . Without returning the car , they went back to ORG and from there to their homes . The suspect had had a gun on him in the shop but did not draw it . PERSON had told them that his uncles and brother were killed by the ORG and that PERSON had a relationship with the ORG and might know where his brother \u2019s body was buried . Their initial idea however had been to hand PERSON over to the gendarmerie .","On DATE , he and CARDINAL others were setting out from GPE to ORG to apprehend CARDINAL individuals . They met PERSON , who joined them . All CARDINAL went to ORG and with police teams took the CARDINAL men and delivered them to the provincial gendarmerie . They stayed in the guest house . On DATE , the CARDINAL village guards went shopping . PERSON pointed out a shop and said that they should apprehend someone there and take him to the gendarmes . PERSON went inside the shop but the man would not come . The suspect and PERSON went inside , saying that they were guards and that he should come to the gendarmerie . He refused to go unless the police came . The suspect agreed . PERSON and PERSON went to look for the police . They came back with PERSON who spoke to the man . They told the people to come to the gendarmerie and took the man out by the arms , putting him in the car . The suspect drove the car which also contained PERSON and ORG . The others followed in a taxi .","They arrived at the fountain next to the gendarmerie . PERSON was no longer there . PERSON said that they should go to ORG and hand him over there . As PERSON was a ORG guard , they thought it must be a ORG matter . They started out towards ORG . Talking amongst themselves , they thought they might have problems going to ORG without permission and changed their minds . PERSON and PERSON stayed at an old building while they went to look for CARDINAL cars , so that they could go on to ORG . They were unable to find any cabs willing to come back with them . They returned to the spot to find PERSON crying . PERSON had attacked him while they were talking and he had fired QUANTITY shots , killing him . Angry , they intended to take PERSON back to the gendarmerie . When they got there , PERSON begged them not to hand him over , referring to his uncles and brother being shot by the ORG . They were in a panic but agreed to keep quiet . They went back to ORG and from there to their homes . They had only taken PERSON away as PERSON had claimed that he would be handed over to the gendarmerie .","The suspect said that on DATE he met PERSON , PERSON , PERSON and PERSON , who were going to ORG . He joined them as he wanted to go to hospital . In ORG , they helped apprehend some people and handed them over to the provincial gendarmerie . On DATE , they went to the shopping district . At that stage , PERSON came into his mind . In DATE , his brother had been kidnapped by the ORG and though he was dead , his body had not been found . As PERSON had connections with the ORG in ORG , he thought he might know the location of the body . He proposed to the others that they should apprehend PERSON . The CARDINAL of them entered the shop . PERSON refused to come without the police . PERSON went to look for the police . He came back with PERSON , who spoke to PERSON . PERSON agreed to come . They all went in cars to the front of the gendarmerie , except PERSON . In the car , the suspect talked about his brother with PERSON and asked his help . PERSON said that if they did not hand him over , he would help the suspect find the body at ORG . The suspect asked the other village guards to take him to ORG .","They started towards ORG . After a while , some of the guards said that they had no permission and decided to go back . PERSON proposed getting out to wait for the others to send back a car . PERSON and the suspect entered the old building and sat down . After a while , PERSON said that he wanted to go outside . The suspect refused to let him . PERSON ran at him , making threats . The suspect drew his gun , pointed it at the man \u2019s head and fired . After firing , the suspect ran away without looking back . When his friends returned , he told them an accident had happened . They drove back to ORG , the suspect stopping to throw the gun into the river . The others were angry and he pleaded not to be handed over . They felt sorry for him and went back to ORG .","On DATE , the NORP gendarme commander had appointed the CARDINAL village guards to apprehend some individuals in ORG and to take the car DATE to the provincial central gendarmerie . They met PERSON , who joined them . They went to the anti - terror police and apprehended the CARDINAL named individuals , handing them over to the provincial gendarmes . On DATE , the CARDINAL village guards went shopping . PERSON pointed out a shop and said that they should apprehend someone there and take him to the gendarmes . PERSON went inside the shop , followed by the others . He talked to a man , who did not believe them and would not go unless the police came . PERSON went outside to look for the police , returning with PERSON , who said that they were village guards on duty . The village guards took the man by the arm and put him in the car . They arrived in front of the gendarmerie . PERSON told the others that the man had agreed to go with him to ORG . The others thought they would hand him over to the gendarmerie at ORG . On the way , they thought they might have problems going to ORG without permission and decided to go back . PERSON and PERSON were to wait for them to return with CARDINAL cars , CARDINAL for them to go onto ORG . They were unable to find any cabs willing to come back with them . They returned to the spot to find PERSON crying . PERSON had attacked him while they were talking and he had fired QUANTITY shots at him .","They returned to the gendarmerie . PERSON begged them not to hand him over . They felt sorry for him . They delivered the car to the station at ORG and went home .","The CARDINAL accused appeared . All gave statements ( those of PERSON and GPE were illegible in the copy provided by the Government ) .","PERSON confirmed his statements to the gendarmes and the public prosecutor . PERSON had told them that ORG had information about the body of his brother . They took him from his shop to take to the gendarmerie but changed their minds and went towards ORG . They left the victim with ORG and when they came back found that \u00d6mer had killed him .","PERSON confirmed his previous statements . They took PERSON in order to find information about ORG brother . They had left him with \u00d6mer on the road to ORG and ORG had killed him .","Zeyyat Ak\u00e7il confirmed his previous statements . They had taken PERSON to find out information with the intention of handing him over to the gendarmerie . They had changed their minds and \u00d6mer had killed him when they left them on the road to Lice .","Mehmet ORG confirmed his previous statements . He had come across the CARDINAL others by chance and had been told that they were taking PERSON to the gendarmerie . He had gone into the shop with GPE . After leaving the shop in a taxi , he got off at ORG and knew nothing more about the incident . He had not introduced himself as an official in the shop . He had only said that the others were officials .","The court decided that the CARDINAL accused should be arrested and charged with the murder of PERSON and the aiding and abetting of murder .","The indictment listed PERSON , PERSON and PERSON as complainants and identified PERSON , GPE , PERSON , PERSON , PERSON and PERSON as having committed the offence of murder and conspiracy in respect of PERSON . It concluded that the CARDINAL village guards had been instructed by the ORG gendarme commander to go to ORG to apprehend certain suspects in the car DATE which was to be delivered to the provincial gendarme command . On their way , they met the fifth guard PERSON , who joined them . They handed over the suspects to the provincial gendarmerie and DATE went shopping . PERSON told them that ORG had a brother in prison for being in the ORG and that his own brother had been killed by the ORG but they had not found the body . He suggested that if they took PERSON , who had a relationship with the ORG , the gendarmes could interrogate him to find where the body was . The others agreed and went to the ORG business LOC . They introduced themselves as security officials and were going to take PERSON to the gendarmerie . An argument broke out , the shop people requesting that the police be brought . PERSON went to look for the police . He met PERSON , who came back , introducing himself as a security officer . When there was still resistance , they drew their guns , took PERSON by the arms and put him into the LOC car . The guards arrived in front of the gendarmerie . PERSON had got out earlier . PERSON told the others that he was going to hand over the victim in ORG and that the victim would help find the body . They set out for ORG . However the other CARDINAL village guards said that they had no permission to go to ORG and decided to go back . PERSON suggested that he and PERSON wait by a ruined building and that the others bring back a car for them to go on to ORG . After the others left , PERSON argued with PERSON . He drew his gun and fired several times , before running away . When the others came back , they drove PERSON to ORG . He threw his gun in the river . They returned together to ORG , leaving the car in the gendarmerie yard . PERSON body was later found and an autopsy disclosed that he had CARDINAL bullet wounds to the head .","According to the evidence , the accused had taken the victim without any instruction from any authority . They had used force and threats . PERSON had believed that the victim had connections with the ORG and wanted revenge . He took the victim to an isolated spot with the agreement and collaboration of the others , murdered and abandoned the body . He had therefore committed premeditated murder .","The court ordered the continued detention of the CARDINAL accused , that the complainants to be informed of the proceedings and the summoning of witnesses : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON .","The CARDINAL accused made statements to the court in response to the indictment .","PERSON stated that when he came to ORG he found that his CARDINAL friends GPE , PERSON , PERSON and PERSON were appointed by the ORG gendarmes to go to ORG to detain some suspects . He joined them . In ORG , they met Captain PERSON at the central gendarmerie , who sent them to the Anti - Terror Department . They detained CARDINAL persons with police teams and handed them over to the gendarmerie . At this time , he had the idea of locating the body of his brother PERSON , who had been killed on DATE . PERSON was known to have been involved in village raids and he thought he might have information about his brother . He had also been injured in a clash himself . They went to the ORG LOC in the car brought from ORG . The accused told PERSON that they were the police and he had to come to make a statement . ORG resisted and said he wanted the police . PERSON and PERSON went outside to find the police . They came back with someone he later learned was PERSON . He told them that he was a police officer and showed them an ID . He had another person with him whose name he did not know . PERSON was taken in a car by PERSON , the unknown friend , the accused , PERSON and ORG . In front of the gendarmerie , PERSON and his friend said that they would take PERSON to be interrogated . They drove off . They stopped at a ruined building on the Lice road . PERSON and his friend took the victim inside . He and PERSON waited by the car . He did not know what was talked about but he did hear mention of MONEY ( TRL ) . DATE , PERSON came and told him to shoot PERSON . He did so . When they arrived back in GPE , he gave PERSON his gun . PERSON was driving . The other man wore glasses .","The accused was asked to explain the contradictions in this account compared with the other statements . He said that this statement was correct and the other ones were untrue . He had made his statement to the court on DATE as he was scared of being tortured at the gendarmerie . In answer to questions , he said that as village guards they had been given the authority and duty to apprehend those they knew to be criminals and hand them over to the gendarmes or police , even outside their own villages . He was therefore empowered to apprehend PERSON and hand him over to the authorities . It was what they did in apprehending CARDINAL suspects DATE .","PERSON said as follows . He and the others had been sent to ORG to apprehend some individuals and hand them over to the ORG gendarmes . They had gone to the ORG shop because PERSON said PERSON might know where his brother was buried . PERSON refused to go without the police . The accused and PERSON went outside to bring the police . After QUANTITY , they met PERSON , with a man wearing glasses , whom he did not know . They entered the shop and showed their IDs . PERSON then came with them in the LOC car . The accused , PERSON friend , who was introduced as \u201c M\u00fcd\u00fcr \u201d ( director ) and PERSON got into a taxi . At the gendarmerie , he joined PERSON , PERSON , PERSON and PERSON in the car , which PERSON drove to a ruin on FAC . He remained near the car . He could hear PERSON asking the victim about the ORG . A sum of MONEY was mentioned . He heard nothing about ORG \u2019s brother . There were CARDINAL gun shots . He saw PERSON come out with a pistol and bloodstains on his trouser legs . PERSON said ORG had killed the victim . On the way back to ORG they were stopped by the police . PERSON friend showed his ID . There was some mention about the number plate of the car and that the car should be held . PERSON drove on anyway and they arrived at the PERSON gendarmerie . The police arrived later looking for the car but did not find it . Captain PERSON asked what had happened but the accused said that he did not know anything and should ask PERSON . When the incident was discovered , someone whom he did not know told him what he should say in the preliminary investigation .","ORG . PERSON said as follows . He and his CARDINAL friends were going to PERSON to apprehend CARDINAL suspects . PERSON joined them as they were leaving ORG in the white GPE . He said he was going for a medical report . In ORG they carried out an operation with security officials . They found CARDINAL of the suspects , handing them over to the gendarmes . They found the fourth , PERSON , DATE and handed him over . PERSON told them at this stage that PERSON was to be apprehended due to his connection with the ORG . They went to his shop . They told him that they were village guards but he refused to come unless police were present . PERSON and PERSON went to look for a police officer . TIME , they returned with PERSON and another person , wearing glasses and speaking proper NORP . That person showed his ID to PERSON saying that he was the police . PERSON agreed to come and was put into the car . PERSON , PERSON and the man called the Director got into a taxi . They all arrived in front of the gendarmerie . The accused , PERSON and ORG stayed at the gendarmerie while the others went off at TIME . TIME , the police arrived . The individuals from the shop might have been with them . Police asked PERSON where the white Toros had gone . The accused told the police that PERSON had been taken for questioning . The police officers left . They handed over the CARDINAL suspects to the ORG convoy . PERSON and the others returned after TIME . PERSON told him to remove the number plates from the car . He handed them to Captain PERSON . He saw the captain talking to the police . PERSON and the man with glasses disappeared at about that time . Growing suspicious , the accused asked PERSON what had happened . PERSON said that he had accidentally shot PERSON . He stated that the previous statements were not correct and that he could not explain why .","PERSON said as follows : They caught CARDINAL suspects in GPE on DATE and stayed on DATE to catch the fourth . They caught PERSON and handed him over to the gendarmes . PERSON then told them that PERSON was in touch with the ORG and might know where his brother was buried , so he should be taken for questioning . They went to the shop and PERSON told PERSON that he had to come for questioning . PERSON refused . PERSON and the accused went to find a police officer . PERSON met PERSON , who was with another man and who said that there was no need for the police . They went into the shop . PERSON talked to PERSON and the man with glasses showed his wallet to him . PERSON agreed to come and got into the LOC car . The accused got into another car with the man with glasses . Later , he saw PERSON , PERSON , PERSON , GPE and the man with glasses go off in the Toros car . PERSON was driving . They returned after TIME . The police arrived and asked PERSON where the Toros car was . His present statement was true . At the gendarmerie , they wrote the statements and he signed . They prepared the statements probably to protect the man with glasses .","Zeyyat Ak\u00e7il said that he did not accept his previous statements . He knew only what PERSON and PERSON had said .","Mehmet ORG said that he repeated his previous statements . He had no friend wearing glasses . His hand was disabled due to a cut above the wrist . He was unable to use his right hand and anyway did not know how to drive . He had gone into the shop with PERSON to help them as they were village guards . He told PERSON that the men were officials , that he would be taken to the gendarmerie and nothing abnormal would happen . PERSON agreed to go with them . The accused got into the taxi with GPE and PERSON but got off at a ORG near the post office . He did not tell anyone that he was a police officer . He played no part in the murder .","The court heard from witnesses from PERSON village who maintained their previous statements and PERSON the owner of the LOC car . TIME noted that PERSON was limping with his left foot and that PERSON arm had a deep cut above the right wrist .","The court ordered , inter alia , that it should be established whether the accused were village guards ; whether PERSON had any form of identification from the gendarmerie ; that an instruction warrant be issued to establish whether ORG gendarme command appointed village guards to apprehend persons outside the village ; that a rogatory letter be sent to ORG for a statement to be taken from ORG ; that PERSON be summoned to give evidence ; and that the hospital medical file concerning PERSON be provided .","He stated as follows . PERSON had been apprehended and sent to the provincial gendarmerie for interrogation . On DATE , he gave PERSON \u2019s car to GPE , GPE , PERSON and PERSON to be delivered to the provincial central gendarmerie for safekeeping until the owner was referred to court . On DATE , the car was seen back in the grounds of the gendarmerie . On investigation , the guards claimed that they had brought it back as the ORG gendarmerie was very crowded and they could not find an officer . They came back with the convoy after DATE . He knew nothing of the incident until the provincial central gendarme command telephoned to ask him about the village guards .","A petition from GPE was read out . The court ordered , inter alia , that sufficient time be allocated to establishing the identity of the specialist sergeant referred to in the petition .","The accused wished to add a further point to his statement to the court . A gendarme special sergeant , whose name he did not know , had been involved in taking in GPE . He had been transferred from ORG within DATE of DATE . The sergeant told the accused that he and PERSON were going to interrogate PERSON and later take him back to the provincial gendarmerie . He told the accused to wait by the car while they interrogated him . The accused did not realise that they were going to kill him .","PERSON addressed the court , stating that he had no intention to kill the deceased but only did so because the specialist sergeant told him to . The court ordered , inter alia , for the summons for PERSON to be renewed .","The defence counsel requested the hearing of the driver of the car CARDINAL who had seen the seventh man and also PERSON , another village guard who had been with the accused in GPE . The court ordered the public prosecutor to locate the witnesses and resummon PERSON .","Defence counsel submitted that a ORG officer had been involved and requested that steps be taken for him to be identified . PERSON told the court that he did not know the name of the specialist sergeant and had only learned that he was a sergeant after he was detained . The court agreed that the official \u2019s identity should be established but did not agree to the means suggested by the defence counsel . PERSON was resummoned , and summonses issued for PERSON and the officials present when the accuseds\u2019 statements were allegedly taken by force .","He stated that he had carried out the investigation into the incident . This had established that the accused had entered the shop . He confirmed the reconstruction and location reports as correct . No pressure was exerted on the accused . He did not know the identity of the official referred to by the witnesses .","PERSON appeared as a witness . He confirmed meeting PERSON and PERSON at ORG and seeing GPE and PERSON there later . He returned with them from there to the gendarmerie at TIME . He saw them returning to ORG in the convoy later .","PERSON appeared as a witness . When they had refused to go with the village guards to give a statement in place of GPE , ORG had left to find a police officer . He returned with CARDINAL individuals ( pointing to PERSON in the court room ) . He described the second man as tall , wearing sunglasses and speaking fluent LANGUAGE . When he said that he was the police , the witness asked for his ID . He produced something which he opened and shut without the witness seeing what it was . All had weapons except PERSON and the seventh man .","PERSON , a gendarme ORG , gave evidence , saying that he was present when the accused made their statements . No pressure was applied on them and the contents were true . The accused made no mention of a seventh man , though the relatives of the deceased had . They were unable to establish the identity of that man .","Mehmet ORG told the court , inter alia , that persons linked with the ORG had put pressure on the others to change their story and incriminate him .","Counsel for the accused requested that steps be taken to identify the security official known as \u201c m\u00fcd\u00fcr \u201d .","NORP The court ordered inter alia for disclosure of PERSON medical records and rejected counsel \u2019s request concerning the official known as \u201c m\u00fcd\u00fcr \u201d .","This stated that the accused PERSON had informed ORG that there had been a seventh person with them on DATE of the incident . They should investigate the identity of this person and inform the prosecutor \u2019s office .","This stated , inter alia , that the relatives of the deceased and witnesses had mentioned a seventh person . All accused however had clearly stated that they were not joined by anyone else . No - one answering the description given by the relatives had been found during the investigation . The search for the seventh person would continue .","Present when statements were taken from the CARDINAL accused , the gendarme witness stated that no pressure or force was used but that they answered questions freely .","They confirmed their previous statements . PERSON stated that he had identified PERSON as involved during the reconstruction . PERSON stated that there was another man involved and requested that he be identified and that the reasons why the accused were sent for his brother be investigated .","The gendarme witness was present when the body of PERSON was discovered due to the description of the location by PERSON . They established the involvement also of CARDINAL other suspects but CARDINAL else . They had investigated but failed to identify the person described by the brothers of the deceased .","\u015einas\u0131 PERSON attended as a witness . He stated that he had taken part in the investigation under Captain G\u00fcl . The relatives told them of a person involved in addition to the village guards . They were asked to describe him . During the confrontation and identity parades and in making their statements , the accused had however made no mention of such a man .","Counsel for some of the accused stated that the unidentified person was present in the gendarmerie during the interrogation and it was inconceivable that he was not known or found .","Mehmet ORG repeated his assertion that he was unable to drive at the time of the incident as his arm was injured and in plaster .","A medical doctor was heard as a witness concerning PERSON . He had examined the hospital records concerning treatment given for a cut to PERSON right arm on DATE and gave the opinion that he would have been unable to turn keys in a car ignition or make the movements necessary to drive with facility DATE and DATE . There was no record that plaster had been applied .","PERSON stated that PERSON did know how to drive and used to come to their village driving a car many times . PERSON stated that it was his father who drove and he did not know how .","Counsel for the interveners ( family ) rejected the previous medical evidence concerning PERSON and submitted their own expert opinion . Counsel made further submissions , rejecting the alleged motivation of personal revenge for the killing , referring to the traces of ill - treatment found on the body of PERSON . She stated there was an intention to intimidate the family of the deceased . PERSON , in prison for ORG offences , had been asked to become a confessor and had refused , since they wanted him to commit murders . The abduction of PERSON was intended to put pressure on him . The involvement of an unidentified person raised the suspicion that it was a murder involving an organised group of people enjoying ORG support and that officials were obstructing the investigation .","NORP The public prosecutor made submissions on the merits of the case . It was clear from the file and evidence that the NORP district gendarme commander sent CARDINAL village guards to ORG to apprehend CARDINAL suspects . They took PERSON with them . They stayed TIME , looking for a remaining suspect DATE . PERSON believed that PERSON knew the place where his brother and uncle were buried and at TIME took the others to the ORG business LOC , which had been shown to him by PERSON . While PERSON and PERSON stayed by the car , the others went in and said that they were police officers and that PERSON was wanted to give a statement in the PERSON court buildings . When there was resistance , the accused PERSON went out to find a police officer and returned with the confessor , PERSON , and an unidentified person . He introduced himself as a police officer and flashed an identity card . When the deceased resisted , they pulled their guns , and that caused him to go along with them . They all went together to the gendarme command in PERSON . The man described as the \u201c spectacled director \u201d , PERSON , PERSON and PERSON took PERSON in the white car to a ruined building for interrogation . PERSON stayed by the car . Following a talk inside the building , PERSON and the director walked out . PERSON went inside and shot PERSON with CARDINAL bullets in the head . The motivation for this incident \u2013 whether money , or revenge \u2013 was unclear . However none of the accused knew that PERSON was going to be killed , including PERSON . It was more probable that PERSON was there only for interrogation . All the accused had restricted the liberty of the victim . While PERSON carried out the killing , deliberately and unpremeditatedly committing a crime under Art . CARDINAL of the ORG , there was no information that the others knowingly took part in , or facilitated , the killing .","Submissions were made by counsel representing the village guards . PERSON requested time to submit his defence to the public prosecutor \u2019s pleadings . The court adjourned and granted PERSON further time .","PERSON repeated that he only killed PERSON under pressure and threat to his own life when PERSON and the director had told him to do so . It had been PERSON who had chosen the location and driven them there .","Feyzi G\u00f6k\u00e7en said that PERSON arm was not plastered during the incident . He had told PERSON about the incident on their return . PERSON had been angry with PERSON .","PERSON claimed that the village guards were trying to incriminate him due to family enmity dating back DATE . He also claimed the ORG were waging a campaign against him .","NORP The public prosecutor proposed that the driver of the taxi who took the accused from the scene be found . The accused present were asked to describe who was in which car .","Feyzi G\u00f6k\u00e7en said that he , PERSON and the spectacled director were in the taxi and the others in the white ORG . PERSON said that he was in the ORG , with PERSON , PERSON , PERSON , the victim and PERSON . PERSON did not get out on the way to the gendarmerie and they arrived at the judicial buildings . PERSON agreed that he , PERSON and the director were in the taxi . PERSON was in the white car with PERSON , PERSON , PERSON , PERSON and the victim . The court ordered the issue of a warrant to identify the taxi driver and that a letter should be written to the provincial gendarme command to enquire as to whether a man named or nicknamed \u201c m\u00fcd\u00fcr \u201d existed .","The court gave , inter alia , directions concerning the location and summoning of PERSON , the driver of the taxi .","This referred to a letter from the court of DATE , enquiring whether anyone called or nicknamed \u201c m\u00fcd\u00fcr \u201d was employed at their command . No personnel were known by that name .","The court gave instructions , inter alia , for the request for information to the provincial gendarme command to be repeated , under penalty of attribution of a criminal offence .","The response of CARDINAL DATE of the provincial gendarme command , denying the existence of any person known as \u201c m\u00fcd\u00fcr \u201d , was read out . The court issued a summons for the driver of the taxi whose presence was to be secured by the police .","PERSON made a statement confirming his earlier accounts . The accused informed the court that they no longer needed any more time for their defence . The court ordered a rogatory letter be sent to PERSON to obtain PERSON statement and that PERSON , PERSON and PERSON be released due to the change in the nature of the charge and the time spent in custody .","PERSON denied being in ORG after DATE . He was not involved in driving any car in the incident . His car CARDINAL had been in GPE .","NORP The court instructed that the court file be sent to ORG for a report on the deceased \u2019s injuries and on whether PERSON could have driven a car or turned on the ignition .","This identified PERSON , known as \u201c PERSON , a member of the CARDINALth ORG infantry battalion at PERSON , as the man who organised the killing of PERSON . The accused was prepared to confront him and requested that he be brought before the court .","PERSON petition was read out . He had not known the name earlier . Counsel for GPE and PERSON requested that an inquiry be made into LOC . PERSON counsel protested that it would unnecessarily prolong the trial . The court ordered , inter alia , that an inquiry be sent to ORG , CARDINALth ORG , to determine whether PERSON was still serving in that unit and for his presence to be secured .","Referring to the court \u2019s summons of PERSON of CARDINAL DATE , this stated that their records showed CARDINAL of that name employed by ORG .","NORP The response from ORG was read out . The court instructed , inter alia , that further enquiries be made from ORG about PERSON .","NORP The following information was requested : did PERSON work for their command in DATE ; if , so what were his duties ; where did he now work ; what was his address ?","NORP There was a manuscript note on the letters : \u201c does not exist in our records \u201d .","NORP ORG requested the exhumation of the deceased \u2019s body to examine the skull and neck . The court , inter alia , instructed the public prosecutor to locate the body and to repeat the enquiry to ORG .","This referred to the court \u2019s letters of DATE and DATE . The court had requested information with regard to PERSON . No entry had been found in their records .","Response from the CARDINALth ORG was read out . The court instructed inter alia that the public prosecutor continue his investigation concerning the body and that an enquiry be addressed to the army chiefs of staff as to whether a specialist sergeant PERSON served under their command , and if so , when and where .","NORP The public prosecutor submitted that there was no useful purpose in exhuming the body . He adopted the submissions on the merits made earlier on CARDINAL DATE and DATE . The court decided , inter alia , to abandon the exhumation and the attempt to hear evidence from PERSON ; to review whether the file was ready for a final ruling ; and to summon PERSON counsel to make his final submissions in his defence .","Counsel for the family submitted that the investigation was incomplete as the procedure to bring PERSON before the court had not been completed . She requested that the court extend the investigation in this respect . She also submitted that as the incident had been committed by gangs , working for state officials , the matter fell within the jurisdiction of ORG . The court ordered that counsel for the family be allowed to carry out an inquiry into the case files concerning gangs operating in ORG and to inform the court if there was any information in them concerning a man matching the description of PERSON .","The court ordered the release on bail of PERSON and PERSON .","It was noted that PERSON had been released on bail and was performing his military service . Counsel for GPE and PERSON and the public prosecutor submitted that further investigation into LOC was unnecessary . Intervening counsel was not present . The court stated that it abandoned the intention to inquire into PERSON and withdrew previous instructions concerning such enquiries .","As the bench had changed , the court gave adjournments to examine the file and invited the public prosecutor and defence counsel to make further submissions .","The accused stated that he had had no animosity towards PERSON . PERSON had aided the ORG . He had stated that he would not accompany specialist sergeant PERSON and PERSON when they wanted to take him from his business LOC . GPE and PERSON had been going for the police when they met those QUANTITY persons , who said that there was no need for the police . They entered the shop , showed their identification and took PERSON away . When they stopped at a place on FAC , the accused , who was using crutches , waited during the interrogation . They told him to kill PERSON and as they threatened him , for his own safety , he had to kill PERSON . The incident took place due to the incitement of the specialist sergeant and PERSON .","NORP The public prosecutor adopted his previous submissions . PERSON and PERSON had nothing to add . The court noted that charges had not been brought against the accused concerning ORG CARDINAL paragraphs CARDINAL and LAW paragraph CARDINAL . As LAW could apply to GPE and PERSON , the former should be given time to make submissions and the latter should be summoned to appear from his military service . The prosecutor was to issue a new indictment .","Mehmet ORG appeared and made submissions on LAW , repeating that he could not drive at the time . PERSON had nothing to add .","This listed PERSON , GPE , PERSON , PERSON , PERSON and PERSON as accused of abduction and deprivation of liberty of PERSON on DATE .","The accused had previously identified PERSON and specialist sergeant PERSON from PERSON as responsible for the incident . The sergeant \u2019s name was in fact PERSON . The GPE report referred to ORG murder as being carried out by PERSON and others ( see paragraph CARDINAL ) . Apparently , the reason was that PERSON had demanded money from ORG who was in prison . PERSON must have been murdered when he refused to pay the demanded sum . He asked the court to take the GPE report into account as evidence in the case .","PERSON made submissions and presented a petition . This stated that the specialist sergeant \u2019s name was not Se\u00e7kin but PERSON and referred to the GPE report as giving information about this man \u2019s activities and the killing of PERSON . The court ordered the indictment to be served on the accused and for them to attend to answer it and for the matter of the GPE report to be adjourned .","NORP The court instructed that a request be made to the Prime Minister , via ORG , to obtain the GPE report .","NORP The court received a copy of the GPE report .","PERSON stated that he had killed PERSON under duress from PERSON and PERSON . The court summoned PERSON to verify the autopsy identification .","PERSON stated that he was not guilty of the charges . PERSON killed PERSON . He had confessed because he was threatened . He was still being threatened . He asked for release .","PERSON confirmed that the autopsy report was signed in his presence and was correct .","NORP The public prosecutor repeated his submissions on the merits . PERSON had initiated the incident due to his belief that PERSON might know the location of his brother \u2019s body . PERSON had brought PERSON back to the shop and PERSON had introduced himself as a security official and the others as village guards . The accused had drawn their pistols and forced PERSON to go with them . PERSON left the taxi on the way to the gendarmerie while the others went on . The CARDINAL village guards drove out of ORG with the victim . When CARDINAL of them changed their minds , leaving PERSON and PERSON together in the ruined building , PERSON shot and killed PERSON . He submitted that PERSON had committed premeditated murder ( Article CARDINAL paragraph CARDINAL ) , that GPE , PERSON , PERSON , PERSON and PERSON should be convicted and sentenced under ORG CARDINAL paragraphs CARDINAL and CARDINAL paragraph CARDINAL for restricting the freedom of GPE in using weapons and acting in concert .","PERSON submitted that PERSON was the perpetrator . At the very beginning , the gendarmes had told him what to say in his statement and that he would be out of prison in DATE as they would look after him . No - one had helped him and now he had been threatened instead .","NORP The court adjourned , stating that the case had reached the verdict stage .","Counsel for the family submitted that murder was widespread at the time in the region , when certain public officials were abusing their powers and forming gangs . Though the search for PERSON had earlier been abandoned , she stated that a search for him would lead to a more just result and would show that the allegations about the incident being personally motivated by ORG desire to find his brother \u2019s body were a diversion . The public prosecutor agreed that the CARDINALth ORG and ORG be questioned about PERSON . The court gave orders to that effect .","NORP The court summarised the indictment , the submissions of the prosecution , defence counsel and counsel for the family . It recounted the various statements made by the accused in their defence , and the other documentary and oral evidence .","The court concluded from the evidence as follows . PERSON , PERSON , PERSON and PERSON , provisional village guards , were sent to ORG to apprehend CARDINAL ORG suspects . On the way in the car provided by the gendarmes , they met PERSON who joined them as he wanted to go to ORG for medical treatment . CARDINAL of the suspects were found and handed over DATE . With help from ORG , they found the fourth DATE . At this point , the CARDINAL guards bumped into PERSON outside ORG . The uncle and brother of PERSON had been killed by the ORG , but their bodies never found . PERSON thought that PERSON had been involved with the ORG and he might know where the bodies were . Carried away by this idea , PERSON took the others along to the ORG shop , which PERSON showed them . They arrived in the white GPE . GPE , PERSON and PERSON entered first , joined later by ORG , and they told PERSON that he had to come for interrogation . He resisted . The others present asked for the police and for identity cards to be shown . PERSON and PERSON left to fetch the police . They brought back CARDINAL people , PERSON and a man , with glasses , speaking good NORP who was addressed as \u201c Boss \u201d . This man was said by PERSON to be PERSON . PERSON showed his ORG card . The accused pulled their weapons when there was continued resistance . PERSON agreed to leave . They hired a taxi as they were so many . PERSON , PERSON , GPE , PERSON , PERSON friend and the deceased got into the white ORG and the others into the taxi .","The cars arrived at the gendarmerie . The white ORG left , with PERSON , PERSON , PERSON , the deceased and the man with glasses . Outside the city , PERSON was taken to the scene of the incident . PERSON and the man in glasses interrogated him inside a building , while PERSON and GPE were outside . PERSON and the man in glasses came out . PERSON went inside and killed PERSON with CARDINAL shots .","The motivation for the incident came from PERSON , the other village guards acting on the basis of his wishes . They had no authority or assignment to take PERSON and so the CARDINAL accused had restricted the freedom of the victim and violated his liberty in a manner which was to end in death . PERSON did not enter the shop but was at the scene of the killing . He had killed PERSON without the knowledge of , and with a different motive from , the others .","NORP The court convicted GPE , PERSON , PERSON , PERSON and PERSON pursuant to ORG CARDINAL parasgraphs CARDINAL and CARDINAL paragraph CARDINAL as they had restricted the freedom of PERSON at gunpoint , collectively and unlawfully , and he had been killed as a result . They were sentenced to DATE and CARDINAL months\u2019 imprisonment and a fine of CARDINAL GPE . They were acquitted of murder . PERSON was convicted of intentionally killing PERSON pursuant to LAW and sentenced to DATE imprisonment . A complaint was to be filed with ORG against PERSON for the necessary action to be taken .","ORG , responding to requests from ORG at the hearing of evidence , submitted LAW ( see Relevant Domestic Law and Practice below ) and a copy of the statement taken from LOC . They also stated that there was no entry in the ORG or ORG gendarme records concerning the CARDINAL men detained on DATE with the alleged assistance of the CARDINAL village guards .","It was recounted to the witness that PERSON had stated that he had informed the duty ORG at PERSON that his brother PERSON had been abducted and taken inside the gendarmerie and that the ORG told the family to go away . It was also stated that the ORG signature appeared on a record of CARDINAL DATE concerning the impossibility of finding car , registration no . CARDINAL .","The witness stated that DATE he was second - in - command of the central gendarmerie station under the orders of the ORG central gendarmerie commander . Since it was DATE before he was unable to recall the ORG incident clearly . He did not remember , and did not think that , he had talked to PERSON as described and he did not remember being spoken to in that way . He remembered nothing about the investigation .","The applicant lodged with the ORG a copy of the so - called GPE report , produced at the request of the Prime Minister by Mr Kutlu Sava\u015f , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , though CARDINAL pages and certain annexes were withheld .","NORP The introduction stated that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .","NORP The report analysed a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of \u201c informants \u201d supposedly serving the ORG , and concluded that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result , particularly in the drug - trafficking sphere . The report made reference to an individual PERSON , also known as PERSON or \u201c NORP \u201d detailing his involvement in unlawful acts in the south - east and his links with M\u0130T ( National Intelligence Organisation ) :","\u201c ... Whilst the character of PERSON , and the fact that he , along with the group of confessors he gathered around himself , is the perpetrator of offences such as extortion , seizure by force , assault on homes , rape , robbery , murder , torture , kidnap etc . , were known , it is more difficult to explain the collaboration of the public authorities with this individual . It is possible that a respected organisation such as ORG may use a lowly individual ... it is not an acceptable practice that ORG should have used LOC several times ... LOC , who carried out activities in GPE under the name of ORG , in GPE under the name of ORG and used the name PERSON , is an individual whose activities and presence were known both by the police and M\u0130T ... As a result of the ORG \u2019s silence the field is left open to the gangs ( page CARDINAL ) .","... PERSON was also associated with GPE , an organisation within the gendarmes , which used large numbers of protectors and confessors ( page CARDINAL ) .","In his confession to ORG , ... PERSON ... had stated that PERSON ( page CARDINAL ) would say from time to time that he had planned and procured the murder of PERSON and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON had also been planned and carried out by PERSON ( page CARDINAL ) .","All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay , in the financial strength the latter presented in economic terms . These factors also operated in the murder of PERSON , a smuggler and pro - ORG activist . They equally applied to PERSON , ORG and ORG . The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in Appendix CARDINAL ) . Other journalists have also been murdered ( page CARDINAL ) . \u201d","The report concluded with numerous recommendations , including the improvement of co - ordination and communication between different branches of the security , police and intelligence departments , the identification and dismissal of security force personnel implicated in illegal activities , the limiting of the use of confessors , a reduction in the number of village protectors , the cessation of the use of ORG outside the south - east region and its incorporation into the police outside that area and the opening of investigations into various incidents and steps to suppress gang and drugs smuggling activities . It was recommended that the results of ORG enquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .","NORP In the section of the report concerning the activities of LOC , there were references to unlawful activities , including extortion , kidnapping and murder allegedly involving , amongst others , PERSON and PERSON . This passage is included :","\u201c By DATE PERSON started introducing himself as the person in charge of the south - eastern region for ORG [ ORG ] . At this stage his relationship with PERSON , chairman of the GPE ORG went bad and around that time PERSON and PERSON took PERSON from the hotel at which he was staying in order to murder him but at a later stage for some unknown reason released him and took a certain amount of money in this fashion from PERSON for the relevant company .","\u2013 Specialist sergeant ( PERSON ) code name KURSAD from PERSON , confessor PERSON and confessor PERSON were witnesses to this incident .","\u2013 Alaattin GPE , PERSON , PERSON and PERSON , code name PERSON , conspired and murdered PERSON ( member of ORG from Batman ) ...","\u2013 PERSON personally planned and carried out the murder of ORG and PERSON . PERSON and ORG collected large sums of money from ORG and the surrounding provinces with ORG headed threatening letters ... This collection of money was made by PERSON and PERSON .","\u2013 In DATE by indicating that GPE , who was under arrest in ORG prison in a ORG trial and who was the brother of the proprietor of the \u201c Sedef Trading Company \u201d , was transferred to the ORG dormitory , PERSON collected FAC from ORG . They repeated their demand in DATE and upon a refusal to pay the money they murdered PERSON , a partner in the company and this incident surfaced for some unknown reason .","PERSON , the brother of the applicant , was born in DATE . He , PERSON and PERSON ran a business partnership in ORG , running a fertiliser franchise . On DATE , shortly after TIME , a group of CARDINAL people came into the shop , joined TIME by CARDINAL others . His brother PERSON was down by the entrance . The witness , on the mezzanine , saw him talking to the visitors . His brothers PERSON and PERSON were also in the shop .","At first , he thought the visitors were customers . Then , due to the sound of arguing , he realised that they were not and he opened the window of his office and asked what was going on . They said that they had instructions from the public prosecutor in the PERSON court building to take CARDINAL of them there . They did not mention PERSON specifically . When the witness asked why , they said that PERSON was in prison and had not come to make a statement . The witness said that they could not make a statement for their brother . They asked why he was making problems and said that they were security officials . He asked them to show their identity cards . They did not want to do that . He suggested that they go and find some police officers nearby , saying they would go with the police officers . CARDINAL of the men said that he would call on the radio . He walked to the door , talking into the radio in his hand . He later recalled that it was probably ORG who had a radio in his hand . At that point there were CARDINAL men there , who talked , dressed and acted like people from the region . PERSON noticed that CARDINAL of the men was limping but did not see any crutches . The man who left came back in with CARDINAL more people . They looked different and the others deferred to them as if they were in charge . CARDINAL of them was dressed elegantly and neatly , spoke very correct NORP and had a diary in his hand . He was clearly in command , being greeted respectfully like a senior official . The witness did not hear the word \u201c m\u00fcd\u00fcr \u201d used though .","The CARDINAL men asked why the PERSON brothers were causing difficulties for the CARDINAL men , saying that they were security officials and he should go with them . The PERSON brothers asked them to show their ORG . CARDINAL of the men , who claimed to be a security officer , opened his ORG and closed it . The witness insisted on seeing it properly . The man pushed him to the wall , and said , \u201c PERSON them . \u201d The men drew their guns and cocked them . After argument , PERSON said that he would go with the men in order to avoid an incident . They agreed , pulled him into the white Toros car DATE in which they had arrived and took him away . According to his brothers , the seventh man , the one in charge , got into a taxi however . The brothers took the numbers of both cars . The people left in the shop panicked . They called the police emergency number and he himself called the gendarme number . His brothers PERSON and PERSON went out immediately and followed the white ORG in their own car , which was parked outside . He stated that the statements taken by the gendarmes which referred to a lapse of TIME were inaccurate . TIME , the police arrived . They took their statements and said that they would look into it . After they had called their station on their radios , the police said that his brother had been taken to the gendarmerie and not to worry . He also phoned his father PERSON , at his ORG shop and his father went to PERSON to join his brothers . The taxi driver also came back to the shop , saying that he had dropped CARDINAL men off at the gendarmerie .","He heard later that his brothers followed the car as far as the gendarmerie compound , which was at TIME away . The white car went inside . His brothers stopped at the gate . They told an ORG that their brother had been brought inside and wanted to know what was happening . The ORG told them that they were lying . After the village guards had delivered PERSON into the gendarmerie , they came out . The brothers saw them and pointed them out to the gendarmes .","The witness was rung by his brothers who told him they were waiting outside the gendarmerie . The witness went to join them there . They told the gendarmes that they wanted to make a complaint . They were kept waiting until TIME . Finally , the gendarmes told them to write a petition to the public prosecutor \u2019s office . They wrote a petition and the witness took it to the public prosecutor \u2019s office . At TIME , the public prosecutor sent them to the police , as he had told the witness that the gendarmes had no authority to detain people in the city without the knowledge of the police . At the police station , they were kept waiting until TIME , when they made their statements . The police said at that point that they had made a mistake in saying that his brother had been taken to the gendarmerie . The witness took their petition from the police and went back to the public prosecutor . The prosecutor said that the people concerned were village guards . As the gendarmes said that the village guards had returned to their villages , he would try to bring them back .","DATE , and over DATE that followed , they went back to the police , the public prosecutor and the gendarmerie . Their father went to GPE , talking to politicians , bureaucrats and many others . On DATE , the witness went to see the ORG provincial governor . The governor said that he was aware of the incident and that they were doing everything in their power to find PERSON . The witness and the family waited anxiously .","When the gendarmes came with CARDINAL suspects to the LOC to reconstruct the incident , he and his brothers pointed out that it was incomplete as the seventh person was missing . TIME , Captain G\u00fcl rang to say that a body had been found . They rushed to the morgue and identified it as their brother . He saw the body at the autopsy . There were dark bruises on his head and shoulders and his ankles were swollen and bruised , with a mark as if a cord had been wrapped round them . He did not believe , from the intact state of the body , that it had been left all that time in a river in the open as alleged .","From the beginning , they had insisted that there were CARDINAL persons but there was always excuses as to why he could not be found or denials that he existed . Some - one was always protecting the seventh person . As they considered that all their lives were now in danger , they left ORG . He moved to GPE to continue business there . DATE before the incident , PERSON had been taken into custody but released after being brought before the court . The witness thought the incident had nothing to do with PERSON brother \u2019s body but was because his family were perceived as being against the ORG . For example , the applicant worked for PERSON and ORG was in prison for helping the ORG . The confessor , PERSON , had also been with ORG in the mountains and maybe knew PERSON when he helped PERSON with an operation with his ear , though that was only a guess .","When the applicant \u2019s lawyer referred him to the passage in the GPE report , the witness explained that PERSON was a business in a different district and he did not know the partners . Nor did he know PERSON . No threats had been made concerning demands for money . His brother PERSON had been close friends with PERSON , who had disappeared DATE before . His brother had been active in trying to find him .","The witness , born in DATE , was the father of the applicant and PERSON . At the time of events , he and CARDINAL of his sons had a jewellery shop , while PERSON , PERSON , PERSON and PERSON ran the LOC fertiliser franchise , QUANTITY away . He was in his shop when his son was taken away . At TIME , PERSON called him on the phone , saying that PERSON had been abducted . He jumped in a taxi at once and went to the shop . PERSON was there . He said that they had taken PERSON to the gendarmerie , so the witness went there immediately in a taxi . PERSON stayed , waiting for the police . At the gendarmerie , where he arrived at TIME , he saw PERSON and PERSON . They wanted to go inside to report the abduction but the gendarmes said the station was closed until TIME . As they waited by the door , PERSON pointed out CARDINAL of the persons who had been involved , walking around in the courtyard , QUANTITY away . The white car was there also . His sons said the other CARDINAL men involved had left in a car . He was sure that PERSON was in the compound . There was CARDINAL entrance \/ exit , as the place was inside the ramparts of the old fort . Inside the wide gate , was the gendarmerie on the left and the prosecutor \u2019s building to the north , with the prison behind .","At TIME , they were allowed into the gendarmerie . The CARDINAL men were still outside in the courtyard . He spoke to an ORG on duty , telling him that his son had been abducted and brought there . He went upstairs to find out and when he returned his attitude had changed and he said , \u201c Get out . Nothing of the sort happened . \u201d He then returned to his shop . He was upset and did not notice if the village guards were still there at that point . He contacted a Member of ORG , who called the Minister of ORG and the President for him . The deputy police chief called them that night to re - assure them that nothing would happen to their son . He flew to GPE on DATE , where he talked to CARDINAL MPs , to the Minister for Human Rights and to the Vice President of ORG . The latter talked on the phone to the Minister of the ORG who said that ORG had been found in a military unit and nothing would happen to him .","His son ORG had gone to the mountains , been caught and confessed . The family had told him not to become a confessor because confessors not only admitted their crime but became contra - guerrillas , like PERSON . He suspected that his son \u2019s decision to leave the ORG wing was a reason for what happened . Also his son PERSON ( the applicant ) had been found guilty of sympathising with the ORG and had fled to GPE , where he worked for the PERSON . There were photographs in the newspaper of the applicant with \u00d6calan . He had told his son that this put the family in GPE in danger . PERSON was also a close friend of PERSON who had disappeared , after which his son had looked after the father .","In answer to a question by the ORG , he stated that many of his CARDINAL strong family had been arrested or detained . His son PERSON had been arrested and sentenced under LAW , being released in DATE . His son PERSON , ORG \u2019s wife and his daughter PERSON had been arrested , then released after DATE . He had been told that his daughter PERSON had gone to the mountains . She was detained twice , and on the second occasion acquitted and released . As CARDINAL of his sons was in the mountains , the police were always around , in their shops , harassing them . PERSON had been detained once before , but released after being taken to court .","He had not attended the court proceedings himself as he was afraid . Because of the pressure , they sold their businesses at CARDINAL price and left . He had never been called to give his statement .","NORP The witness born in DATE , was the cousin of PERSON . He was living in DATE at the time of the kidnapping and murder . He described an incident on DATE , when he and his brother PERSON were told to get into a car by armed men . Both of them had run away . He tried to reach a police station but was knocked unconscious , coming round in a room with men in civilian dress . They asked him his connection with the applicant and PERSON , saying that they had killed PERSON and it would be his turn next . He was taken blindfolded to the gendarmerie and tortured , before being released . He had recognised CARDINAL of the men in the car who had shot at him as being a gendarme ORG .","The witness , born in DATE , was a member of the GPE bar . She was representing the family as interveners in the trial of the village guards in ORG . Though she did not attend all the hearings due to the distance and expense for the family , she followed the proceedings and received the documents . The proceedings had been going on so long because of the seventh person and the frequent changes in the bench of judges . Cases usually lasted DATE , including appeals , though political ones lasted a long time .","As regarded the seventh person , her clients had mentioned the involvement of CARDINAL persons in their statements shortly after the incident to the gendarmes . Their statements to the police had apparently been lost . The accused referred to the seventh person for the first time on DATE , describing him as a military person or police officer but without giving his name . She had suspected that their earlier statements to the gendarmes , which were all suspiciously the same , had been given under duress and the seventh person deliberately omitted . The descriptions given were almost identical \u2013 an individual MONEY , brown hair , somewhat heavy , with sunglasses who spoke perfect NORP .","The seventh person \u2019s name had been revealed as PERSON by the GPE report . His address had recently been given to the court in DATE . As officials\u2019 addresses were easily found , the reason for his non - appearance in the proceedings was due to powerful elements deliberately causing the delay or he had his own particular reason not to appear . She thought that ORG had been very negligent in not obtaining his address earlier . The court had failed to accept her request for photographs of personnel to be shown to her clients for the purposes of identification . Though the court made various requests on her application , they did not try very hard in her view . It was a mistake for the court now to summon him as a witness as he has been described as a suspect in the documents for a long time . However , he could only be heard as a suspect if the prosecution drew up an indictment , based on the necessary steps . She considered that there was negligence in that respect .","Her clients had been forced to leave ORG because of threats . She herself was followed when in ORG and threatened openly . She had received no response to her petition to ORG , though the judge , the President of the ORG and the public prosecutor took some initiatives , helping her for a while in getting to the airport . That protection stopped when the bench changed . There were increased threats when the seventh person was mentioned in the proceedings . More recently with the exposure of the situation in the south - east , matters had improved .","She did not believe that the incident was based on ORG personal ideas . It was ludicrous to believe a village guard would go with such a large group and take someone away . It was something more \u2013 a scare tactic , CARDINAL of the illegal acts prevalent at that time . Her clients had told her that ORG had been forced to become a confessor under pressure and after a short time had changed his mind . They were afraid that they were being targeted to put pressure on him .","She referred to a medical report that recorded blows and marks on the body which were possibly due to trauma from a hard object . She had also been suspicious about the state of the body , which had not deteriorated as might have been expected if PERSON had been killed when alleged .","The witness , born in DATE , had been a village guard from DATE . He had been wounded in a clash in DATE . The injury had disabled him on the left side . Following an operation in DATE , he had been told to come back to the military hospital in GPE DATE for treatment . He had been walking with crutches until DATE . As village guard , he had gone wherever the ORG had told him . He had a gun . Though his principal duty was to protect the village , he went where he was sent , to take part in clashes elsewhere . That had happened many times . He did not remember if he had helped to detain persons before .","NORP In DATE , he went to ORG as he wanted to go to ORG for medical treatment . He had not been during the DATE as travel was not possible . He did not have a specific appointment . The commander said that he should go with the CARDINAL village guards who were going to ORG and that he should help them apprehend some men to hand over to the station . There was no car to be delivered \u2013 the car was not an issue but only mentioned later for something to say . When asked how he could be expected to help if he was still injured , he said that he had to do what he was told and that perhaps it was to show the others where the headquarters were .","NORP When they arrived in GPE , he showed the guards the gendarme headquarters and they saw PERSON . He sent them to the police headquarters . Together with the police , they apprehended CARDINAL men and handed them over to the gendarmes . The witness stayed in the car during the operation . The guards stayed at the headquarters that night . In TIME , PERSON told them to go and bring PERSON . He did not give any reason .","A villager PERSON showed them where the shop was , but did not go into the shop . All CARDINAL village guards entered the shop . He did so on crutches . He did not have a walkie - talkie or a gun , as he could not carry anything . PERSON refused to come , saying that he would only go with the police . PERSON and PERSON went to call the police . They came back with CARDINAL people , who had been outside and who had said that there was no need to call the police . The witness thought that they were the police . They showed their identity cards and took the man . At that point , as it was crowded , he was outside the shop leaning on a tree outside the door . He did not hear what was said inside the shop . The QUANTITY men and CARDINAL of the village guards drew their guns . They left in CARDINAL cars .","When they arrived inside the gendarmerie , the men whom he later knew were the expert sergeant and the confessor PERSON said that they would interrogate PERSON before handing him over . The witness was in the car and could not get out without help . The CARDINAL men called for PERSON , got into the car and the confessor drove out of ORG , stopping at a ruin . He and PERSON stayed by the car . He could hear the men talking with PERSON . GPE helped the witness out of the car . Then , they heard gunshots and the CARDINAL men came back . PERSON was a little way off . The expert sergeant came to the witness and said that he had to admit to killing PERSON or they would kill him . The witness agreed as he was alone and disabled , with hardly any family .","On the way back , the police stopped them . PERSON accelerated away , the police following . When they got back to the gendarmerie , they explained everything and he had to admit to the killing . When he told PERSON that it was his man that did it and he would end up in prison , the Captain said that it was his problem . PERSON kept them detained for TIME , then on release , they went back to ORG with the convoy . From there he returned to the village . As matters had turned out , he had not been taken by the others to the hospital for treatment .","The NORP elder brother had been taken away by the ORG and they had never seen the body since . He did not know who in the ORG killed him . There was no connection between his family and the Av\u015fars . PERSON who had not gone to the mountains would not know where to find his brother .","He had learned PERSON name in prison . PERSON told the guards that the other man was PERSON , an infantry expert sergeant from PERSON in ORG . He gave the name to the court .","NORP The reconstruction had been carried out as the gendarmes wanted . It was not correct that he had taken PERSON arm . They took his crutches away when they took the photographs . The statements taken by the gendarmes had been made up by them . He went to where the body was , with the gendarmes and PERSON . He did not see the body himself , though he saw the gendarmes doing things with blankets and cameras .","NORP The witness , born in DATE , had been a village guard from DATE . As a guard , he protected the village . When they saw persons helping the ORG , the village guards told the ORG and apprehended the suspects with the help of the ORG . They did so in the village , in the surrounding district and as far as ORG , with the knowledge of the ORG . There were no police in GPE at the time and the soldiers did not know the people so the village guards virtually did the police work . Things had changed as the police were there now and there was no work left for the village guards . The guards had walkie - talkies for use at TIME in the villages . He did not have one with him in GPE . He had been to the PERSON gendarmerie quite a few times before in respect of the deaths of various relatives DATE of his brothers and CARDINAL uncles had been shot by the ORG .","The ORG commander sent them to ORG to deliver a car and to help apprehend CARDINAL people whom they knew , as they were from the NORP area . He remembered meeting PERSON outside the police headquarters , who was perhaps there about a licence for a gun . He had known PERSON as he was from Hazro . PERSON had walked with a single crutch .","He referred to his previous statements and court proceedings as regarded other questions . When asked , he stated that the latest of his statements was the one that was DATE the one which mentioned PERSON , and another unidentified man . He did not know if PERSON had killed PERSON . However , he remembered seeing a gun in PERSON hand and a spot of blood on his shoe . Apart from that the statements read out were correct : DATE , CARDINAL DATE , DATE . He was still a village guard .","The witness , born in DATE , referred to his statement in court and stated that he did not wish to say anything more .","He did however answer a few questions . He had become a village guard in ORG in DATE , or maybe DATE . He did not go into the ORG shop , but stayed outside . When they went to ORG , it was the first time he had been asked to do a duty .","The witness had become a village guard in DATE . His duty was to protect the village . There had been a raid on the village by the ORG , following which people gave up resistance and left . As he and others were unable to serve in the village , they went to carry out their duty in ORG .","They had gone to ORG for their own personal needs , not under orders . While there they had seen some people and picked them up , delivering them to the authorities . Whether they had orders or not , they could intervene when they saw wanted people . Sometimes they helped the police pick people up ; other times they acted by themselves and handed the people over . They would conduct searches around ORG on their own initiative . PERSON was a village guard from ORG but he was living in ORG temporarily as his village had been evacuated .","He did not remember whom the car belonged to . PERSON was limping a bit , but he did not recall if he was using crutches . There was probably a walkie - talkie with them . Probably they showed the people in the shop their village guard identity cards . They apprehended CARDINAL men on DATE in ORG and the fourth one DATE . PERSON knew nothing about the incident . PERSON had acted on his own initiative and could not accuse anyone else .","When his statement to the court on DATE was read out , he confirmed that it was correct . He was still a village guard . He referred to losing CARDINAL of his own family to the ORG and to the deaths of CARDINAL village guards in their village . The ORG did not order them to do things : if a crime was committed by the village guards , it was because of the village PERSON own ignorance or personal resentment against other villagers .","The witness had become a village guard in ORG in DATE . The PERSON job was to protect the village . It had been attacked several times by the ORG and his elder brother , an uncle and CARDINAL other villagers had been shot . He was still a village guard .","When asked about events in DATE , he said that he did not want to remember and did not remember .","NORP The witness , born in DATE , was living in ORG in DATE . Prior to this time , he knew only PERSON , though all the other village guards were from his own district , GPE .","On DATE , he was in the GPE caf\u00e9 with a woman friend . He left to go to his cousin \u2019s shop and met PERSON and PERSON by chance . They told him that they were to apprehend a terrorist and hand him over to the ORG . They did not ask him to help them . He went back with them to the shop , as it was in the direction that he was going . He heard one of the people in the shop say that they could not trust the village guards . He asked them how they could take that position , as the men were village guards and would hand PERSON over to the ORG . There was an argument going on as to whether PERSON should go . The people in the shop said that the police should come . Eventually PERSON said that he would go with them to the gendarmerie . CARDINAL used force and there were no security officers present . At this time , he was at the door , waiting for GPE . He never went inside , only talking to a young man whom he later knew to be a relative from by the door . He was not carrying a gun .","He got into a car with GPE and was dropped off at the main post office area , from where he went to his relatives\u2019 home . The post office was QUANTITY away . It was not in the direction of his relatives\u2019 home . PERSON was in another car with the other guards . He knew nothing about what happened until he was taken into custody later by the gendarmes . He got into the car as he thought PERSON family might think he was CARDINAL of them and react against him .","He had been in the ORG for DATE and when he was in custody he had given evidence on a few occasions . He had benefited from the remorse law by confessing to the ORG everything that he knew . He had been given no other duties , official or unofficial . He was just a citizen . In DATE , he had no job .","When he was told that persons said that he had claimed to be a security officer with another man who had authority , he stated that he had been the victim of frame - up theories for DATE . He had seen no person acting as if they were in charge of the village guards . At another point he said that he could not say if any such person was there as he did not know anyone but PERSON and there was a group of people , CARDINAL or CARDINAL in addition to the village guards .","PERSON had no difficulty in walking or other functions at this time . He carried a small pistol . He was of the opinion that the whole incident was caused by PERSON using his own friends to carry out a murder for personal revenge . PERSON had been the leader of a ORG group which had killed ORG elder brother by melting plastic over him . He had heard about the incident when he was in prison with other confessors . PERSON had taken on a kind of blood feud . The witness had been in GPE ORG group for DATE and they had carried out activities together .","DATE before the incident , he had cut his hand , punching it through glass . The plaster had come off DATE before but he could not use his hand e.g. to pick up cigarettes or to turn a car ignition or to drive .","When asked why PERSON relatives would insist that he was involved with another person , he claimed that the relatives had not been able to point him out at the identity parade . His photograph had been in the newspaper and he was always accused of being mixed up in incidents . At the reconstruction , sergeant PERSON put a gun in his hand and made him under duress play the part of the person taking PERSON away .","He did not meet PERSON on DATE of the incident . He only saw him when he was taken into custody . He knew him from before though , when he was interrogated for terrorist offences .","He knew ORG . They had been together in prison for DATE . They had had a friendly and respectful relationship . In prison though , there was no choice as to whom you were confined with .","The witness , born in DATE , was assistant commander at the ORG provincial gendarme command in DATE . He was given a team by the commander with orders to conduct an investigation jointly with Captain G\u00fcl , into the killing of PERSON . This was a normal part of his duties , carrying out investigations as the commander considered appropriate . PERSON was not his subordinate but was attached directly to the provincial commander .","He did not remember many details of the investigation . He had taken statements of some relatives . He did not know anyone called PERSON . Neither had he heard the name PERSON . After a short time , he was assigned elsewhere and PERSON continued without him . He was not involved in any line of investigation concerning any alleged involvement of the security forces in the killing . He recalled CARDINAL of the guards was disabled and it had crossed his mind how he could have been involved .","From his experience of DATE , he stated that village guards were appointed by the provincial governor on approval of the district governor and the security forces . The ORG paid them and supplied them with pistols and long - barrelled weapons . Their duty was to provide security to the place where they were registered , namely within the territory of their village . They were given walkie - talkies when the need arose . They had special identity cards from the governor . They took orders from the muhtar . He denied that the muhtar would take orders from the gendarmerie , or that the gendarmerie would give orders to village guards . Village guards were not used for any purpose other than protecting their own village . It was not possible to use them for taking persons into custody . He did not recall why the village guards in this case had come into ORG . He confirmed that it would be unlawful for the ORG gendarme commander to order the village guards to go to ORG to apprehend suspects .","NORP The witness , born in DATE , was in DATE commander of the ORG provincial central district gendarmerie , in charge of the PERSON headquarters as well as the stations within the administrative limits of the central district , outside the municipal limits . He left that post in DATE . Village guards used to come from the province and districts and always called at PERSON . It was a sort of meeting centre for them and they had guest houses at the regiment . At another point , he said that the guest house was by the courthouse . He could have met the CARDINAL village guards before the investigation , but could not remember . He might have sent them on to the police when told about their instructions . PERSON had custody facilities , used for persons detained within their jurisdiction .","As regarded the CARDINAL village guards\u2019 involvement in apprehending persons in ORG , he had given no such orders . Orders might have been issued by the ORG command to which they were attached . However , village guards were not authorised to take people into custody on their own . They only helped law enforcement officers , by informing them about wanted persons and assisting in their detention . Though their primary function was to protect their villages , they were regularly given anti - terrorist missions in other areas e.g. in operations or in assisting in apprehension . The village guards in this case were working with the police as far as he could remember . He agreed that he would have to be informed if village guards had been sent to his jurisdiction to take persons into custody . However the men concerned in this case were not in his jurisdiction . If the village guards had come to the guest house , they would certainly have reported to the gendarmes . He had not been in touch with the NORP gendarme commander about the persons to be detained in his gendarmerie , though information would have been sent when they had been taken into custody . The custody record , if the persons were in the custody room and not merely waiting TIME for the convoy , would record that event .","He knew PERSON , who had left the ORG . He would have co - operated with the police or other units in giving information and providing support in that connection .","He first learned about PERSON abduction when the public prosecutor referred the petition of the family . He did not know if PERSON was under surveillance or observation but his family might be directly or indirectly involved in terrorism . They were from ORG and were known to have organic connections with terrorism . He was appointed by the provincial commander to conduct the investigation with Colonel PERSON . Most of the questioning however was done by him and his team . After DATE , the investigation was complete , and they sent the file to the public prosecutor . That was the end of his role .","According to his recollection , the real key to the incident was a personal conflict between PERSON and the PERSON family , members of whom were in the ORG and whom he considered had killed his brother . As regarded the alleged seventh person , they had found no indication or sign of the person in the investigation \u2013 there were contradictions in the descriptions given anyway . According to their enquiries , there was no such person in the security forces or police . He did not know anyone called PERSON . PERSON was entirely an army unit .","He recalled that PERSON was slightly disabled but did not notice crutches . Nor would his condition have prevented him from using a gun . He would never have given the instruction to detain PERSON as it was outside his jurisdiction in the municipal area and the village guards were not attached to his command . There had been no duress during the reconstruction and the family and the village guards had not had any objections to what was done .","The gendarmes had carried out the investigation as the village guards were involved , guards being under the command of the gendarmerie , and because they had said that they were taking PERSON to the gendarmerie . Though the victim had been abducted within police jurisdiction , he had been taken within gendarmerie jurisdiction and they took over the entirety of the investigation for consistency , aided by the police .","The checkpoint for the PERSON gendarmerie was by the Lion Fountain . The fountain itself was open to the public . The checkpoint did not affect persons going past the gendarmerie to the court building . It would have been impossible for the village guards and PERSON to have entered without being checked . The allegation that he was brought to the gendarmerie was false . He could have been brought to the courthouse without their knowing . In his view , the family were exploiting the abduction of their son on behalf of the ORG . It was a case of ordinary homicide and PERSON had changed his story to save his skin . Any involvement of the security forces was out of the question and could never have happened .","The witness , born in DATE , was acting at the relevant time as intelligence operations ORG at the PERSON gendarme headquarters in GPE , under the command of Captain G\u00fcl . He had been in the team investigating the PERSON incident .","The descriptions of the alleged seventh man had been contradictory , about height etc . Nothing was clear . At another point , the witness said that , as PERSON alone had done the killing , they left matters there . They had tried to find the taxi driver who drove from the scene without success . It was normal for village guards to give information about suspects to their commanders and then be sent to give the information to the relevant authorities in the city and show where the persons were if necessary . They could not act to detain on their own .","The guards and PERSON had raised no objections to the reconstruction . If so , they would have been recorded . He did not remember if they tried to find the NCO Okan identified by the relatives .","He stated that he had never heard of anything called GPE . He had no information before the incident about the PERSON family or whether they were involved with the ORG .","The witness , born in DATE , had been public prosecutor in the trial concerning the killing of PERSON since DATE to date .","NORP The prosecution view was that PERSON killed PERSON and the others were accessories . PERSON had given information in DATE about a man PERSON . The court had little information about him and enquiries with ORG showed CARDINAL by that name had worked in the region . Defendants often used to make up names to save themselves from conviction . Later , it was established that an expert sergeant PERSON in fact existed and lived near PERSON . Letters rogatory had been issued . He was currently a witness , not a suspect .","Much of the delay in the proceedings was due to the lack of a presiding judge for a long time , and the fact that the court was presided over by temporary presidents . There were changes in the bench . The length in this case was exceptional .","He confirmed that the prosecution had consistently taken the view that the village guards were in ORG to search for and apprehend CARDINAL men wanted for interrogation . There had never been any question of PERSON being the seventh person . He had had doubts about the alleged desire of PERSON to find out information about his brother \u2019s body , which would be difficult after that length of time . It was probably only a pretext for taking him away to kill him in a premeditated way .","The witness , born in DATE , was involved in the ORG investigation up to the transfer of the case to the court , where it was taken up by another colleague . He had prepared the indictment . He recalled no allegation about a seventh person being made by that time . He did not recall why the gendarmerie were carrying out the investigation , even though the abduction had taken place in police jurisdiction . As far as he could remember the body was found outside police jurisdiction .","LAW makes it a criminal offence :","\u2013 to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;","\u2013 to issue threats ( LAW ) ;","\u2013 to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;","\u2013 to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .","NORP The authorities\u2019 obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by LAW Offences may be reported to the authorities or the security forces as well as to public prosecutor \u2019s offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .","If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor \u2019s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .","A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .","ORG If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor \u2019s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect \u2019s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .","An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .","By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor \u2019s authority .","If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a \u201c military offence \u201d under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .","The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person \u2019s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender \u2019s superior .","NORP Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the LAW provides :","\u201c All acts or decisions of the authorities are subject to judicial review ...","The authorities shall be liable to make reparation for all damage caused by their acts or measures . \u201d","That provision establishes the ORG \u2019s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people \u2019s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .","DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :","\u201c No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . \u201d","NORP Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant \u2019s guilt ( Article CARDINAL ) .","However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an \u201c administrative act \u201d or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim \u2019s right to bring an action against the authority on the basis of its joint liability as the official \u2019s employer ( LAW ) .","Chapter CARDINAL of GPE no . CARDINAL ) concerns village guards and their duties . The role of village guards is to protect the life , honour and property of the people within the boundaries of the village ( DATE ) . There is to be CARDINAL in every village , with CARDINAL per CARDINAL population in villages of CARDINAL ( LAW ) . They are to be recruited by ORG and take up their duties on approval by the district governor ( Article CARDINAL ) . Guards must be between the ages of CARDINAL and DATE , have no previous criminal conviction , have a good reputation and have no bad habits such as drunkenness or a tendency to quarrel with others ( Article CARDINAL ) . They carry out the orders of the muhtar ( Article CARDINAL ) and carry weapons , resistance to them to be punished in the same way as resistance to gendarmes ( Article CARDINAL ) .","Provision is made for the recruitment of volunteer guards in times of raiding and pillaging , extended by an amendment of PERSON no . ORG dated DATE ) to cover circumstances disclosing a state of emergency or other serious acts of violence . The provincial governor , with the approval of the Minister of the ORG , may establish the appropriate number of guards to be recruited , who are paid salaries , aids and indemnities for service by ORG ( Article CARDINAL ) . The weapons and ammunition of village guards are provided to ORG by the authorities ( Article CARDINAL ) and the weapon given to a guard can be used only by that person ( Article CARDINAL ) .","Guards are allowed to use their weapons to protect themselves against attack , to protect the life of another person when no other solution is possible , if they encounter armed resistance while trying to apprehend a murderer or any other person caught in the act of committing an offence or fleeing the scene of the offence , where the apprehended person flees , disregards the \u201c stop warning \u201d and there is no other possibility than to resort to the use of weapons ; and where during a chase to capture brigands a suspect appears in the area where the brigands are sheltering and does not respect the \u201c stop warning \u201d given by the guard . In any other circumstances , the guards shall be punished for using their weapons . Even where the use of weapons is justified , the guards should as far as possible seek to wound , rather than kill , the suspects ( Article CARDINAL ) .","Village guards are required always to carry the village guard ORG issued to them ( Article CARDINAL ) . On death , resignation or dismissal , the guard \u2019s weapon , ORG , papers , badges etc are to be handed over to the muhtar ( Article CARDINAL ) . Provision are made for disciplinary punishment ( caution , reprimand , dismissal ) of guards neglecting their duties or engaging in prohibited activities e.g. absence without leave , taking improper advantage of the LOC , orchards or farmlands guarded by them , failing to carry their badge , uniform , weapons or exchanging them ( Articles DATE ) . Village guards who lose negligently or allow others to take their weapons or ammunition are to be discharged ( Article CARDINAL ) .","Regulations concerning temporary village guards were drawn up under sections CARDINAL and CARDINAL of GPE Law no . CARDINAL ) and came into force on CARDINAL DATE to establish the principles and procedures relating to temporary village guard \u2019s appointments , training , duties and responsibilities , the areas within which they shall perform their duties as well as their occupational rights and their dismissal from duty .","Conditions for appointment as a temporary village guard include : that the person be of NORP nationality , has completed military service , has no conviction for an infamous crime or inciting hatred or enmity ( Article CARDINAL paragraph QUANTITY of the ORG ) , has no involvement in separatist or anti - State activities or blood feuds , is a native and resident of the village where he are performs his duties and has no physical or mental illness or disability that prevents him from performing his duties ( section CARDINAL ) . Candidates have to apply in writing to the district or provincial governor , with copies of various documents ( section CARDINAL) . The application is referred to the district gendarme command , which opens a file on each application and investigates from its own records and other official sources . The collected information and the district gendarme commander \u2019s comments are returned to the district governor and the candidates selected by him as suitable are submitted to the provincial governor for approval . The provincial governor issues the order of appointment . ( section CARDINAL ) . On appointment , the village guards are summoned to the district gendarme command to take up their duties and receive their weapons , ammunition , clothes , identity cards and other items ( section CARDINAL ) .","Pursuant to section CARDINAL , the area within which the village guards carry out their duties is the area within the boundaries of the village . However a village guard can pursue beyond the boundaries a person who has committed an offence within the village and the provincial or district governor can extend the area covered by the village guard beyond the village boundaries . The area of a village guard carrying out his duties along with the law and order forces , including tracking , chasing , collecting information and guiding such forces , was to be the area covered by that law and order force .","Pursuant to section CARDINAL , the duties of the village guards are as follows :","\u2013 to identify , pass information to the gendarme command about , prevent the escape of and capture , persons who committed or attempted to commit , acts of assault , theft , violations of honour , sabotage , abduction , armed attacks , arson ;","\u2013 to take steps to preserve evidence of incidents requiring judicial procedures ;","\u2013 to report natural disasters ;","\u2013 to investigate the activities of , and collect information concerning , convicted persons and their relatives , and to report to the gendarmerie any information about offences ;","\u2013 to learn the names of any strangers in the area and to enquire into the reasons for their presence , finding out the names of the persons with whom they are staying ;","\u2013 to identify villagers or strangers spreading false reports or news aimed at disturbing the peace , or disseminating separatist propaganda ;","\u2013 to take measures to prevent attacks on , inter alia , roads , bridges , energy transmission lines , railways , pipelines , dams and to assist the general and special law and order forces in protection of such facilities ;","\u2013 to keep watch on whether derelict or remote houses in the village area are being used as shelters by fugitives , criminals or wanted persons ;","\u2013 to report at least once DATE to the gendarme station with jurisdiction for the village to obtain instructions from the commander with regard to their tasks ; to report , on being called to the gendarme station with their weapons with all promptness ; to place themselves at the disposal of the gendarmerie or authorised military unit to carry out checks , or searches , or to track and capture fugitives from justice .","While carrying out their duties , they must use their weapons subject to LAW . When carrying out their duties along with military or law - and - order forces , the village guards , under the command of those units , have the same powers and responsibilities as those entrusted to that unit . They are authorised to use force to apprehend and to overpower those carrying out an attack or attempting an attack . ( section CARDINAL ) . Guards are accountable administratively to the village muhtar and subject to his supervision . Occupationally , guards are under the command of the gendarme commander for the area covering their village and the district commander is responsible for training , ensuring village guards perform their duties effectively and supervising them ( section CARDINAL ) .","On request of the district gendarme commander , the district governor may issue a warning to a guard who fails to carry out his duties or to maintain his equipment ; he can stop pay CARDINAL to CARDINAL days\u2019 pay where a guard has been absent without leave for DATE , disclosed confidential information or reported untrue facts ( section CARDINAL ) . Guards may be dismissed , on approval by the provincial governor , for absence of DATE without leave ; recurrence of the acts under LAW ; failure to take part in a mission when summoned by the district gendarme commander ; hiding fugitives or wanted persons or failing to report their location ; making improper use of , losing or allowing the seizure of , weapons and ammunition or other tools or equipment issued to them . ( section CARDINAL ) .","On taking up their duties , the guards undertake a DATE compulsory training course by the district gendarme commander , and receive CARDINAL days\u2019 training once DATE ( section CARDINAL ) . Guards must present their weapons and ammunition for inspection by the gendarmerie at least once a DATE ( section CARDINAL ) ."],"violated_articles":["13","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5206","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2000,"docname":"VARISLI v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national , born in DATE , and , at the time of the introduction of the application , was detained in the GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","","On DATE , the applicant , an employee of ORG , was arrested and taken into detention on suspicion of embezzlement and of having been involved in a robbery committed on DATE at FAC . On DATE , following the applicant \u2019s appeal against a decision of CARDINAL DATE prolonging his pre - trail detention , ORG ( Gerechtshof ) of GPE ordered the applicant \u2019s release from pre - trial detention .","After an initial summons had been withdrawn , the applicant was summoned to appear on DATE before ORG ( Arrondissementsrechtbank ) of GPE . The judges dealing with his case would be PERSON as President , and PERSON and PERSON","On DATE , the applicant filed an objection ( bezwaar ) against the summons . On DATE , after having deliberated , ORG sitting in chambers ( Arrondissementsrechtbank in Raadkamer ) , composed of PERSON , PERSON and PERSON , rejected the objection . Subsequently and on DATE , ORG commenced its examination of the charges brought against the applicant .","As the composition of ORG was the same as that of ORG sitting in chambers that had rejected the objection against the summons , the defence challenged ( wraking ) the CARDINAL judges . After having deliberated , CARDINAL other judges of ORG rejected the challenge . ORG , in its original composition , then resumed its examination of the applicant \u2019s case .","In the course of DATE , ORG took a short break in order to hand down its judgment in the criminal proceedings that had been brought against the coaccused R.M. Sitting in the same composition as in the applicant \u2019s case , ORG convicted PERSON of the robbery committed on DATE .","After having become aware of this , the applicant challenged ORG for a second time when DATE the court resumed its examination of his case . After having deliberated , CARDINAL other judges of ORG rejected the challenge . ORG , in its initial composition , resumed its examination . It considered a request of the defence to take evidence from TIME witnesses , ordered that evidence should be taken from CARDINAL of them and adjourned its further examination .","On DATE , ORG heard evidence from the CARDINAL witnesses whose appearance it had ordered on DATE and heard the parties\u2019 final pleadings .","In its judgment of DATE , ORG convicted the applicant of robbery committed on DATE at FAC , and participation in the commission of unlawful deprivation of liberty and embezzlement . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .","On DATE , ORG started its examination of the applicant \u2019s appeal . Further hearings were held on DATE and DATE , in the course of which ORG , inter alia , heard a number of witnesses .","In its judgment of DATE , ORG quashed the judgment of DATE . On the basis of the full rehearing on both facts and law that had taken place before it , ORG convicted the applicant of participation in a robbery and embezzlement , acquitted him of the remaining charges and sentenced him to CARDINAL years\u2019 imprisonment . It rejected the argument advanced by the defence that , given the composition of ORG , the case should be referred back to ORG as ORG that had convicted the applicant could not be considered as an impartial tribunal in that the same judges had rejected the applicant \u2019s objection against the summons and had already formed a view on the matter in that they had already convicted a co - accused . The applicant filed an appeal in cassation with ORG ( PERSON ) .","By judgment of DATE , ORG rejected the applicant \u2019s appeal in cassation . It rejected the applicant \u2019s arguments in relation to the alleged partiality of ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79800","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF STANISLAV VOLKOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6;Violation of P1-1","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in the town of LOC ORG .","According to the applicant , on DATE the police instituted administrative proceedings against him for having disobeyed a lawful order of a police officer and arrested him . On DATE the ORG of GPE discontinued the proceedings because there was no indication of an administrative offence . The decision of ORG did not contain any reference to the applicant 's alleged deprivation of liberty .","The applicant submitted that after the hearing the policemen brought him back to a police station . They handcuffed him to a heating device , put a plastic bag on his head and severely beat him up .","On DATE an investigator of ORG of ORG instituted criminal proceedings against the applicant and CARDINAL other persons on suspicion of participation in a criminal enterprise and ordered their arrest . As it follows from a record of DATE , the applicant was arrested on DATE at TIME He was also charged with unlawful possession of a weapon .","On DATE the ORG acquitted the applicant and ordered his immediate release . The judgment became final on DATE when it was upheld by ORG of the Karachayevo - Cherkessiya Republic .","In DATE the applicant lodged an action against the ORG and ORG of GPE for compensation for non - pecuniary damage incurred through unlawful detention .","On DATE the ORG accepted the applicant 's action and ordered that ORG should pay the applicant MONEY ( ORG , CARDINAL ) at the expense of the ORG . ORG held as follows :","\u201c Mr PERSON was unlawfully detained from DATE to DATE , that is for a total of DATE .","It was proven at the court hearing that Mr PERSON sustained non - pecuniary damage and it should be compensated because he was acquitted by a final judgment .","According to paragraph CARDINAL of the Decree of the Plenary Supreme Court of the Russian Federation no . CARDINAL of DATE On certain questions concerning application of the domestic law on compensation for non - pecuniary damage ' ... the amount of compensation depends on the character and extent of moral and physical suffering caused to the plaintiff , fault of the defendant in each particular case , and other circumstances which merit attention ...","The court ... takes into account that the amount and extent of moral and physical suffering of a person depend on his subjective perception of the existing situation and considers that , having regard to the arguments and evidence submitted by the parties , it is possible to award the plaintiff MONEY in compensation for non - pecuniary damage .","Assessing the moral sufferings caused to the plaintiff , possible consequences of the plaintiff 's conviction , and having examined the materials of the criminal case - file , the court considers that the awarded amount is reasonable and fair . \u201d","The judgment of DATE was not appealed against and became final .","On an unspecified date the President of ORG of the Karachayevo - Cherkessiya Republic lodged before the Presidium of ORG an application for a supervisory review of the judgment of DATE because ORG should have issued the judgment directly against the ORG and should have excluded ORG from the proceedings .","On DATE the ORG of ORG of ORG , by way of supervisory - review proceedings , quashed the judgment of DATE and remitted the case for a fresh examination . The ORG noted that ORG had incorrectly assessed the amount of compensation and that it should have joined the ORG as defendant to the proceedings .","On DATE the ORG found that the applicant 's detention had been unlawful but reduced compensation to ORG CARDINAL,CARDINAL ( EUR CARDINAL ) . The reasoning in the judgment of DATE repeated word by word that of the judgment of DATE , save for the amount in the penultimate paragraph where CARDINAL was replaced with CARDINAL . The judgment of DATE was upheld on appeal on DATE ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-85722","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF KRAWCZAK v. POLAND","importance":3,"conclusion":"Government's request to strike the application out rejected;Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Stanislav Pavlovschi","text":["The applicant was born in DATE and lives in GPE .","On DATE the ORG ( S\u0105d Rejonowy ) remanded the applicant in custody for DATE on CARDINAL counts of armed robbery . It considered that that measure was indispensable in order to secure the proper conduct of the proceedings , having regard to the serious nature of the offences in question and the likelihood of a custodial sentence .","The first hearing took place on DATE . Since that date CARDINAL hearings have been scheduled and CARDINAL witnesses heard . Many hearings have been adjourned .","On DATE the court decided that , because of the lengthy illness of a judge rapporteur , a new bench should be appointed . This meant that the proceedings had to be restarted .","On DATE the ORG ( PERSON ) severed the bill of indictment and ordered that cases against CARDINAL other coaccused be tried in separate proceedings .","The proceedings are still pending .","On DATE the applicant lodged a complaint about the undue length of the criminal proceedings under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) and requested just satisfaction of PLN CARDINAL,CARDINAL .","On DATE the ORG ( S\u0105d Apelacyjny ) dismissed his complaint on the ground that since the date of entry into force of the DATE Act no undue delays in the proceedings could be discerned , the proceedings having been conducted with due diligence and within a reasonable time . The court observed that LAW had entered into force on DATE and could not be applied to the proceedings before that date .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG \u2019s decisions in the cases of ORG v. GPE no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91242","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2009,"docname":"CASE OF EERIKAINEN AND OTHERS  v. FINLAND","importance":2,"conclusion":"Violation of Art. 10;Pecuniary and non-pecuniary damage - award","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The first applicant was born in DATE and lives in PERSON . The second applicant was born in DATE and was resident in H\u00e4rm\u00e4 at the time of his death .","The first applicant is a freelance journalist . In DATE he wrote an article about criminal proceedings which were then pending before ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) . Those proceedings were public in nature . A defendant , X , was charged with various counts of tax fraud and aggravated fraud for allegedly deceiving ORG ( kansanel\u00e4kelaitos , folkpensionsanstalten ) and insurance companies . The article was published in issue no . CARDINAL\/CARDINAL of the magazine ORG , and entitled : \u201c It seemed legal , but ... a woman entrepreneur cheated to obtain a pension of MONEY ? \u201d ( In NORP : N\u00e4ytti lailliselta , mutta ... yritt\u00e4j\u00e4rouva huijasi yli CARDINAL miljoonan el\u00e4kkeen ? ) . The article did not mention X \u2019s name . In the magazine \u2019s table of contents , however , her first name was mentioned . The article included a reproduction of an article which had been published DATE previously with CARDINAL photographs of X. That article , written by the first applicant , had been published in another magazine and mentioned X \u2019s full name and included CARDINAL photographs of her , CARDINAL taken inside her home and another in her garden . The article was about a house purchased by the applicant which turned out to be full of rising damp . This situation naturally made her extremely miserable as she had spent her money on an uninhabitable house .","In DATE X lodged a criminal complaint , and proceedings were instituted against the applicants . On DATE , however , ORG dismissed the charges . X appealed to ORG ( hovioikeus , hovr\u00e4tten ) , which upheld the judgment on DATE . X was ordered to reimburse the ORG legal costs .","Subsequently , X brought civil proceedings against the applicants before ORG . She claimed that the said article had incriminated and insulted her and , in the alternative , that her picture had been published without her consent , causing her mental suffering . She requested compensation for non - pecuniary damage amounting to MONEY ( ORG ) ( MONEY ( ORG ) ) . In the alternative , she claimed compensation for the publication of her picture and non - pecuniary damages amounting to LAW ( ORG CARDINAL ) . She also claimed pecuniary damages amounting to ORG CARDINAL ( EUR CARDINAL,CARDINAL ) . In a hearing before the court she claimed that publication of the article and photograph had amounted to an invasion of her privacy .","In its judgment of DATE ORG found that , given that X had been only a suspect at the time and the criminal case against her had still been pending , it had been wrongly alleged in the table of contents and in the headline of the article that she had obtained pension payments by fraud . The case thus amounted to defamation , as set out in LAW of LAW ( rikoslaki , strafflagen ) . The court found that other parts of the article were not defamatory . Under LAW ( vahingonkorvauslaki , skadest\u00e5ndslagen ; Act no . CARDINAL ) , the court ordered the applicants jointly and severally to pay ORG CARDINAL ( ORG CARDINAL ) for non - pecuniary damage and ORG CARDINAL ( ORG CARDINAL,CARDINAL ) for pecuniary damage , and to pay her legal costs . Finally , it found that , having regard to the above , there was no need to adjudicate on her second claim .","The applicants appealed to ORG , asserting their right to freedom of expression . X also appealed , requesting that the amount of damages be increased .","On DATE , without holding an oral hearing , the appellate court quashed the judgment , reasoning , inter alia , that :","\u201c ... It was clear from the text of the article that it concerned a pending public trial . PERSON \u2019s identity was not revealed in the headline , thus she could not be assumed to be guilty of an offence only by reading the headline . Neither was her identity disclosed in the table of contents ; to identify her required reading through the article . The text of the article is not defamatory or slanderous on the grounds set out in ORG judgment . Publishing an article about charges brought before a public trial is justified , even though it might cause suffering for the accused . The act did not amount to defamation ...","... the crimes allegedly committed can not be regarded as minor , taking into account their extent , effects and social importance . An article about this kind of case , and the publication of a photo from which [ X ] could have been identified , is not a violation of her privacy . \u201d","X applied for leave to appeal to ORG ( korkein oikeus , h\u00f6gsta domstolen ) .","On DATE ORG granted leave to appeal . On DATE it issued its judgment , which became a precedent ( ORG ) . ORG ruled that , in line with the grounds of ORG judgment , the applicants were not guilty of defamation . It found , however , that by attaching the said illustration ( in NORP : kuvitus ; that is by reproducing the old article which included X \u2019s name and photographs ) , the applicants had violated her right to privacy , and ordered them jointly to pay ORG CARDINAL ( ORG CARDINAL,CARDINAL ) for non - pecuniary damage together with interest from the service of the summonses in DATE and to reimburse her legal costs . The court reasoned , inter alia , that :","\u201c ...","On the grounds mentioned in ORG judgment , ORG considers that [ the first and the second applicants ] have not committed an act of defamation within the meaning of LAW , LAW as in force at the time of the act . [ see paragraph CARDINAL above ]","The question thus raised by this case is whether [ the first and the second applicants ] without a legal right through the use of a mass medium or in another similar manner have publicly spread information , an insinuation or an image depicting the private life of [ X ] which has been conducive to causing her damage or suffering and are thereby guilty of invasion of privacy within the meaning of LAW , LAW , of LAW as in force at the time of the publishing of the article .","According to this provision of law , making public [ an article that discusses ] a person \u2019s actions in public office or function , in business life , in a political or other comparable activity , is not to be considered an invasion of privacy if the reporting is necessary to address a matter of social importance . As noted in the travaux pr\u00e9paratoires ( HE no . CARDINAL\/CARDINAL vp ... ) this is relevant chiefly in domains where decision - making takes place or in which the circumstances in reality may affect the DATE life of several persons or which have relevance of principle . According to the travaux pr\u00e9paratoires , such domains are first and foremost the attendance to a public office or function , business life and political activity . According to the said provision , what is essential is whether there is a significant social need to discuss the acts of the person concerned by making public facts which would otherwise belong to the sphere protected by the right to respect for private life .","The criminal case , which has been the object of the article published in the ORG magazine , has concerned , inter alia , the question whether [ X ] in order to obtain an unlawful financial benefit , by concealing that she received her livelihood as an entrepreneur , had misled ORG and the insurance companies to grant her a disability pension thereby causing them economic loss . The acts mentioned in the charge related to [ X \u2019s ] actions as an entrepreneur in a relatively small cleaning firm . Although the criminal case concerned substantial financial benefits , it was not a case which , viewed on its own , was of such general public interest that there would have been grounds to reproduce , as part of an article and without [ X \u2019s ] consent , another article that included her name and photograph . Although the underlying purpose of the article might have been to draw attention to the abuse of social benefits in general by using an individual case and thus to a negative social phenomenon , it was not necessary or justified to publish without authorisation an illustration revealing the identity of an individual private person charged with or convicted of such an offence and in a similar position to [ X ] .","Thus , [ the first applicant ] , who wrote the article in question and intentionally used as an illustration the afore - mentioned earlier published article written by him and the photograph of X in that connection , and [ the second applicant ] , who in his capacity as the magazine \u2019s editor - in - chief approved the publication of the article , have through their acts without a legal right by the use of a mass medium publicly spread information , an insinuation or photograph depicting the private life of [ X ] which was conducive to causing her damage or suffering .","Whether or not the fact that [ X ] was recognisable was due to a mistake or other technical factor when the magazine was printed has no relevance in the legal assessment of the acts of [ the first and the second applicants ] since the article in question together with its illustration has been made public without seeing to and making sure that the typography of the article did not disclose [ X \u2019s ] identity . \u201d","Meanwhile , on DATE ORG convicted PERSON , inter alia , CARDINAL offences of tax fraud and CARDINAL offences of aggravated fraud and sentenced her to an immediate term of DATE and CARDINAL months\u2019 imprisonment . She was also ordered to pay damages .","On DATE ORG upheld X \u2019s conviction for , inter alia , tax fraud , aggravated fraud and fraud , without amending the sentence .","Section CARDINAL ( as amended by Act no . CARDINAL , which took effect on CARDINAL DATE and remained in force until DATE ) of LAW ( Suomen Hallitusmuoto , ORG , Act no . CARDINAL\/CARDINAL ) , provided :","\u201c Everyone has the right to freedom of expression . The right to freedom of expression entails the right to impart , publish and receive information , opinions and other communications without prior hindrance from anyone . More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of ORG . Restrictions on pictorial programmes necessary for the protection of children may be prescribed by LAW .","Documents and recordings in the possession of the authorities are public , unless their publication has , for compelling reasons , been specifically restricted by an Act . Everyone has the right of access to public documents and recordings . \u201d","The same provision appears in LAW ( Act no . MONEY ) .","Section CARDINAL of LAW ( as amended by Act no . CARDINAL\/CARDINAL ) corresponded to LAW , which provides that everyone \u2019s right to private life is guaranteed .","Section CARDINAL of the Freedom of the Press Act ( painovapauslaki , tryckfrihetslagen ; Act no . CARDINAL\/CARDINAL ) , as in force at the relevant time , provided that the provisions of LAW applied to the payment of compensation for damage caused by the contents of printed material .","LAW , section CARDINAL , of LAW stipulates that damages may also be awarded for distress arising from an offence against liberty , honour or domestic harmony or from another comparable offence . Under LAW , LAW , of the said LAW , damages shall constitute compensation for personal injury and damage to property . LAW provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury , as well as loss of income and maintenance and pain and suffering .","Chapter DATE , Article CARDINAL , of LAW , as in force at the relevant time , provided that a person who unlawfully , through the use of the mass media or in another similar manner , publicly spread information , an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering , should be convicted of invasion of privacy and sentenced to a maximum term of DATE imprisonment or to a fine . A publication that discussed a person \u2019s behaviour in public office or function , in professional life , in a political or other comparable activity , was not to be considered an invasion of privacy if the reporting was necessary to address a matter of social importance .","In DATE , LAW , LAW , of LAW was replaced by LAW , LAW no . CARDINAL\/CARDINAL ) . Under the new provision on the injury of personal reputation ( yksityisel\u00e4m\u00e4\u00e4 loukkaavan tiedon levitt\u00e4minen , spridande av information som kr\u00e4nker privatlivet ) , a person who unlawfully , through the use of the mass media or in another manner , publicly spreads information , an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt , shall be convicted of injuring personal reputation . However , an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person \u2019s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society . According to ORG DATE Report ( lakivaliokunta , lagutskottet ; PERSON ) , the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions .","Section CARDINAL of the Public Nature of Court Proceedings Act ( laki oikeudenk\u00e4ynnin julkisuudesta , lag om offentlighet vid r\u00e4tteg\u00e5ng ; Act no . ORG ) , as in force at the relevant time , provided that the name , profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest . Section CARDINAL provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation . Section CARDINAL stated that the provisions laid down in ORG ( laki viranomaisten toiminnan julkisuudesta , lag om offentlighet i myndigheternas verksamhet : Act no . CARDINAL ) were applicable to trial documents . Information and documents relating to a trial are , as a rule , public once charges have been brought unless provided otherwise by an Act .","In a ORG decision ( ORG CARDINAL ) the following was noted ( summary from the ORG ) :","\u201c The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff \u2019s consent . He was convicted of a violation of private life and ordered , jointly with the political organisations which had acted as publishers , to pay damages for mental suffering . \u201d","In DATE ORG delivered CARDINAL decisions relating to articles which had given information on cases of arson . The first decision ( ORG CARDINAL:CARDINAL ) concerned a newspaper article ( summary from ORG Yearbook ) :","\u201c A newspaper published an article concerning cases of arson , in which it was said that the suspect was the wife of the head of a local fire department . As it was not even alleged that the head of the fire department had any role in the events , there was no justifiable reason for publishing the information on the marriage between him and the suspect . The publisher , the editor - in - chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life . \u201d","The second decision ( ORG CARDINAL:CARDINAL ) concerned an article published in a periodical , which was based on the afore - mentioned newspaper article ( see the previous paragraph ) and on the records of the pre - trial investigation and the court proceedings , but did not indicate that the newspaper article had been used as a source ( summary from the ORG ) :","\u201c Compensation was ordered to be paid for the reason that the article violated the right to respect for private life . Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation in view of the fact that the information had been reported in another publication at an earlier stage . \u201d","The article published in the periodical had also mentioned the name and profession of the head of the fire department , although the offence was not related to the performance of his duties . Thus , it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence . The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure , before publishing the information again , that the article did not contain information insulting the persons mentioned in it . The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical . Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation . The readers of the newspaper and the periodical were partly different , and the circulation of the newspaper apparently did not entirely coincide with that of the periodical . Therefore , and considering the differences in the content and tone of the articles , ORG found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering . The events reported in the article did not concern the plaintiff \u2019s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant \u2019s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences . By associating the complainant \u2019s name and profession with the offences in question , the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering . The disclosure of the complainant \u2019s name and the emphasis on his occupation had amounted to an insult . By again reporting on DATE after the events had occurred , the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid .","ORG decision of DATE ( ORG ) concerned the broadcasting of the name of a woman who , together with a person in a public position , had been a party to an assault . The court found that the facts discussed in the television programme with regard to the woman were part of her private life and enjoyed the protection of privacy . The fines imposed on her as punishment for the assault did not constitute a criminal - law sanction justifying publication of her name .","Another decision of DATE ( ORG ) concerned an article about a relationship between A , who worked as a press officer for a candidate in the presidential elections , and B , the ex - spouse of a TV journalist . A \u2019s photo was included in the article . ORG , having assessed the provision on the invasion of privacy in LAW in the light of this ORG \u2019s case - law , found that A did not hold a position that meant that such details of her private life were of public importance . The article had thus invaded A \u2019s privacy .","In a decision of DATE ( ORG CARDINAL:CARDINAL ) , ORG noted that an offence is not a private matter of the offender . In principle , however , a person convicted of and sentenced for having committed an offence also enjoys the right inherent in private life to live in peace . According to LAW , any information about the commission of an offence and the resulting sentence qualifies as \u201c sensitive \u201d personal data . The publicity per se of criminal proceedings and of related documents does not mean that information made public during the proceedings can be freely published as such by the media . ORG concluded that publishing the name of a person convicted of , inter alia , assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim \u2019s human dignity . Furthermore , the impugned article did not include his photo .","The Union of Journalists in GPE ( ORG , PERSON ) publishes Guidelines for Journalists ( NORP ohjeet , PERSON ) for the purposes of self - regulation . The DATE Guidelines were in force at the material time and provided , inter alia , that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved . The suspect \u2019s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect \u2019s position which justified publication ( Article CARDINAL ) .","New Guidelines came into force in DATE , which noted that when publishing public material regard must be had to the protection of private life . The public nature of information does not necessarily mean that it may be published . Special care must be observed when discussing matters concerning a minor ( LAW . The name , photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his \/ her position or offence . As regards a minor or an unaccountable person information should be disclosed with restrain ( Article CARDINAL ) . A journalist must be careful not to present information that may lead to the identification of a person in cases where he \/ she is only a suspect or has merely been charged ( Article CARDINAL ) .","On DATE ORG Recommendation No . Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . In point CARDINAL of the principles appended to the recommendation , it considers as follows :","\u201c Protection of privacy in the context of on - going criminal proceedings","The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . \u201d","The commentary to the recommendation considers as follows ( paragraphs CARDINAL and DATE ) :","\u201c Everyone has the right to the protection of private and family life under LAW . Principle CARDINAL recalls this protection for suspects , the accused , convicted persons and other parties to criminal proceedings , who must not be denied this right due to their involvement in such proceedings . The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court . It furthermore may prejudice the reintegration into society of the person concerned . The same applies to the image of the accused or convicted . Therefore , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle .","An even stronger protection is recommended to parties who are minors , to victims of criminal offences , to witnesses and to the families of suspects , the accused and convicted persons . In this respect , member states may also refer to Recommendation No . R ( CARDINAL ) CARDINAL on the position of the victim in the framework of criminal law and procedure and Recommendation No . R ( CARDINAL ) CARDINAL concerning the intimidation of witnesses and the rights of the defence . \u201d","ORG submitted the following .","In GPE and GPE , there is no restriction on publishing pictures of persons subject to pending criminal proceedings , provided that the journalist , according to generally accepted procedure , clearly and explicitly mentions that the person has not yet been found guilty .","In GPE , there is no restriction on pubCARDINALishing the photograph of a person accused of a crime , unless the person himself \/ herself or the court explicitly expresses his or her wish not to be photographed or not to be published . In practice , publication of names and photos happens DATE , with the clear mention that the person is suspected but not guilty . The Declaration of Duties and Rights of Journalists and the Code of Conduct of Journalism also impose an obligation to check the information , to respect privacy , and to correct false information if necessary .","Article CARDINAL of the NORP Press Code provides that the press must respect the private life and intimate sphere of persons . If , however , the private behaviour of a person touches upon public interests , then it may be reported on in individual cases . Care must be taken to ensure that the privacy rights of uninvolved persons are not violated . The press must respect a person \u2019s right to self - determination concerning information about them and guarantee editorial data protection .","GPE sets out the basic principles of responsible independent journalism and has been the model for numerous other journalist codes . It states , among other things , that a journalist shall strive to ensure that information disseminated is honestly conveyed , accurate and fair and does nothing to intrude into a person \u2019s private life , grief or distress unless justified by overriding public interest considerations . In addition , LAW states that , in reporting on crime , relatives or friends of persons convicted or accused of crime should not generally be identified without their consent , unless they are genuinely relevant to the story .","There is no hard and fast rule in the NORP Guidelines for Journalists . The DATE Guidelines urge caution and judgment , especially when a case is only at the accusation stage . However , a public figure is less protected than an ordinary person . A politician or a business leader accused of an offence can be identified for a less serious crime . The gravity of the crime is also an obvious relevant factor . The central question is who is a public figure . There have been cases where spouses , girlfriends or boyfriends of public figures have argued that they were not , and won their case in court . Recently following a school massacre the Minister of the ORG disclosed the name of the killer in a live televised press conference , TIME after the incident . The police also recently published the name and picture of a man accused of ( and later convicted of ) spreading HIV , as well as the names and pictures of CARDINAL escaped convicts . The basis of the decision was public security . Many companies have their own code of conduct . According to most of the companies the name of a convicted person can be published if the sentence is DATE or more in prison , that is , where the crime is serious . But this is usually restricted if publishing the name may disclose the identity of the victim ( child abuse cases , for example , ) or if the person convicted is a minor ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22106","languageisocode":"ENG","respondent":"CYP","branch":"ADMISSIBILITY","date":2001,"docname":"KYRIAKIDES v. CYPRUS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson","text":["The applicant , PERSON , is a NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is the Managing Director of the company ORG and in that capacity he obtained a number of loans from PERSON . Each time a loan was agreed , both parties entered into a written agreement which provided that the loan would become payable to Dr GPE with PERCENT interest at DATE . Each time the applicant received a loan , he issued a personal post - dated cheque in Dr LOC \u2019s favour for the sum due at the end of DATE period . The amount included both the capital and the interest . When the various cheques became payable , PERSON did not cash them , but instead , entered into new agreements with the applicant whereby the sums due were referred to as \u201c capital loaned \u201d , again attracting PERCENT interest . The old agreements and cheques were cancelled by the new agreements .","In DATE , the parties decided to merge the numerous agreements and , when all sums fell due , they were added together to form the basis of CARDINAL further agreements : the first , dated DATE , showed the capital at QUANTITY ( ORG ) . The second , dated DATE , showed the capital at CARDINAL ORG . The new agreements provided for the reimbursement of the capital , plus interest at PERCENT , at DATE and were supported by CARDINAL new post - dated personal cheques of the applicant . These cheques were presented to the applicant \u2019s bank and were both dishonoured . On DATE , PERSON filed a private prosecution before ORG of GPE against the applicant pursuant to LAW of FAC .","At the material time in DATE , a criminal offence was deemed to have been committed under Section CARDINAL(A)CARDINAL where a cheque was dishonoured due to a lack of funds in the drawer \u2019s bank account . LAW provided that no offence was committed if the bearer of the cheque had no \u201c actionable right \u201d against the drawer .","On DATE ORG of GPE acquitted the applicant . In particular , it accepted the applicant \u2019s argument that subsection CARDINAL of Section CARDINAL(A ) applied in the case since the agreements under which the cheques were issued were illegal under NORP law ( Sections CARDINAL and CARDINAL of PERSON CARDINAL\/CARDINAL and Sections CARDINAL and CARDINAL of the Contract Law Cap.CARDINAL ) . In fact , PERSON had charged interest above PERCENT per year allowed by law , namely PERCENT ( PERCENT DATE ) . This being so , Dr LOC had no right of action against the applicant .","On DATE PERSON appealed to ORG . On DATE ORG quashed the judgment of ORG and convicted the applicant , sentencing him to CARDINAL months\u2019 imprisonment . ORG held that ORG had misinterpreted LAW . According to ORG , the correct meaning of that provision was that \u201c the cheque must have the necessary characteristics of a cheque as these are referred to in ORG Law \u201d , \u201c the complainant must be the legal bearer of the cheque \u201d and the trial court should not have examined the civil aspect of the agreement between the parties which led to the issue of the post - dated cheques .","Following that decision , ORG passed a retroactive amendment to LAW ) , which came into force on DATE . The amendment provided that Section CARDINAL(A ) did not apply to any cheques which were issued under an illegal transaction . Furthermore , it provided that the amending PERSON was to apply to all pending cases .","Since the applicant \u2019s case was still pending , as regards the imposition of sentence , the issue was raised before ORG on DATE . The applicant applied for a halt to the judgment , pursuant to LAW of LAW . On DATE ORG held that the amending law did not apply to the applicant \u2019s case .","The applicant served DATE of the sentence and was released after a pardon .","Section CARDINAL(A)CARDINAL of LAW provides that a person is guilty of a criminal offence carrying a sentence of imprisonment not DATE , if he draws a cheque , which on being presented to the issuing bank within a reasonable time from the date on which it becomes payable , it is not discharged owing to the lack of available funds of its drawer and the latter fails to discharge payment within DATE as from the time he acquires knowledge of that fact .","Section CARDINAL states that the provisions of Section CARDINAL(A)CARDINAL are not applicable with regard to any cheque on which no actionable right ensues against its drawer .","Section CARDINAL(CARDINAL ) of the Contract Law Cap.CARDINAL provides that \u201c an agreement made without consideration is void ... \u201d . In the case of Loizou v. ORG , judgment of DATE ) , the defendant raised before the first instance court the defence of LAW , claiming inter alia that the complainant had no right of action against him because the agreement under which the cheque was issued was made without consideration . The court examined the contract between the parties and decided that , on the facts of the case , consideration was given and therefore the contract between the parties was valid and enforceable , giving rise to a right of action . Consequently , the defence failed and the defendant was convicted . The same question was raised on appeal and ORG found that the first instance court examined this matter extensively and that it correctly concluded that consideration was given for the issuing of the relevant cheque . After referring to the facts relating to this matter ORG added the following : \u201c We also note that the relevant provision refers to an \u201c actionable right \u201d , and not to a good basis or arguable action . We are therefore of the view that the judgment of the first instance court is impeccable and the appeal against conviction is rejected \u201d .","Section CARDINAL of the Contract Law Cap.CARDINAL provides that \u201c if the parties to a contract agree to substitute a new contract for it or to rescind or alter it , the original contract need not be performed \u201d . In the case of ORG and ORG v. the Police ( ORG , judgment of DATE ) , the defendant claimed under LAW that the contract under which the cheque was issued had been rescinded and that the parties had entered into a new contract . He contended that since the cheque was issued under the first contract which was rendered unenforceable by virtue of the new one , no right of action existed against him under the former . ORG examined the first contract and , having found that it was indeed rescinded and replaced , upheld the defence under Section CARDINAL(A)CARDINAL and acquitted the defendant . No right of action existed under the first contract ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107563","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2011,"docname":"CASE OF TSYGONIY v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13;Non-pecuniary damage - award","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested by the police on suspicion of drug dealing . On the same date a sachet of poppy straw was seized from his pocket .","On DATE the applicant complained to ORG that he had been ill - treated during his arrest , in particular that he had been handcuffed , beaten and blinded with a dark knitted hat and that he had suffered abrasions on his hands , face and back as a result of having been ill - treated .","On DATE the ORG refused to institute criminal proceedings into the applicant \u2019s complaints , having found no appearance of criminal conduct on the part of the police officers .","On DATE the Prosecutors\u2019 Office of the ARC revoked this decision and ordered a further inquiry . Having examined available evidence and questioned witnesses , on DATE ORG again refused to institute criminal proceedings for want of evidence of any ill - treatment . Based on the available materials , the applicant did not appeal against this decision .","On an unspecified date the applicant also complained to ORG that his detention had been unlawful . On DATE ORG dismissed this complaint , attaching weight to the fact that on DATE the lawfulness of the applicant \u2019s detention was verified by a judge within the statutory QUANTITY time - limit . On CARDINAL DATE ORG of the LOC upheld this decision .","On DATE criminal proceedings were instituted against the applicant on suspicion of drug dealing and following his arrest he was detained in a police station .","On DATE the applicant was brought before ORG , which allowed the investigator \u2019s request to continue his detention for DATE pending a determination of whether he should be charged . The court referred to the fact that the applicant was suspected of having committed a serious offence and that a sachet of poppy straw had been found on him .","On DATE the applicant was indicted for drug dealing .","On DATE ORG decided , in the applicant \u2019s presence , that he should be remanded in custody for DATE pending the outcome of the pre - trial investigation . By way of reasoning , the court cited Article CARDINAL of LAW and noted that the applicant might abscond , as he had been charged with a serious offence , and also that he might tamper with evidence . Moreover , the court noted that the applicant was alleged to have committed the offence while he had been subject to an undertaking not to abscond in connection with an investigation for another unspecified offence , which , at the material time , had been pending since DATE .","On DATE the applicant , represented by CARDINAL lawyers , appealed . He maintained , in particular , that he was a former policeman with a clean record and that he had never previously been convicted . Furthermore , he stated that he lived permanently in GPE , had a child , and suffered from chronic health conditions , in particular pyelonephritis . The applicant acknowledged that at the material time he had been subject to an undertaking not to abscond in connection with a different criminal investigation , but noted that he had never breached that undertaking since it had been put in place in DATE . On an unspecified date ORG held a hearing and dismissed the applicant \u2019s appeal . The applicant did not inform the ORG whether he had been present at that hearing .","On DATE ORG , having held a hearing in the applicant \u2019s presence , allowed the investigator \u2019s request to extend the applicant \u2019s detention until DATE . By way of reasoning , the court noted that the prosecution objectively needed more time to complete the investigation . The court further rejected the applicant \u2019s mother \u2019s proposal to pledge her apartment as bail for the applicant \u2019s release , referring to a risk that the applicant would reoffend given his previous conduct . Referring to a medical certificate , the court also dismissed the applicant \u2019s allegations that his state of health was incompatible with his continued detention .","The applicant appealed , requesting that he be transported to ORG for the hearing . He maintained that the case was not complex and that the failure of the investigative authorities to complete the investigation was only on account of a lack of diligence on their part . On DATE ORG of the LOC considered the matter in the presence of the applicant \u2019s advocate , but in the absence of the applicant himself , and upheld the previous decision .","In the meantime , on CARDINAL May CARDINAL ORG , having held a hearing in the applicant \u2019s presence , extended his detention until DATE on essentially the same grounds as before . It additionally noted that the investigation had not been completed on account of the applicant \u2019s own lack of cooperation . In particular , he had not agreed to confrontations taking place , his lawyer had been engaged in other activities on DATE , and on DATE he had also been examined by medical specialists . The applicant raised essentially the same arguments as stated above , and the court rejected them , referring to essentially the same reasons as it had previously . On DATE ORG of the LOC upheld the decision of CARDINAL May CARDINAL . The applicant did not inform the ORG whether he had been present at this hearing .","On DATE ORG , having held a hearing concerning the extension of the applicant \u2019s detention in his presence , authorised the extension until DATE based on the necessity to carry out additional investigative activities , in particular to consider a request by the applicant \u2019s lawyer to conduct another expert assessment . The applicant appealed , raising essentially the same arguments as before , and noting that since the investigation had almost been completed there was no risk that he would tamper with evidence or otherwise interfere with its effectiveness . On DATE ORG of the LOC upheld the decision of DATE . The applicant did not inform the ORG whether he had been present at this hearing .","In the meantime , on DATE ORG of the LOC considered , as a court of first instance , the investigator \u2019s request for an extension of the applicant \u2019s detention and authorised the extension until DATE . It found that the situation remained unchanged from the time of the previous review , that the applicant \u2019s detention was necessary to finish up the investigative activities , and that there was no reason to release the applicant . At the hearing the applicant himself was absent , but was represented by his advocate .","On DATE the case was transferred to the ORG inter - regional prosecutor for approval of the indictment . By DATE the case had been remitted to ORG for the commencement of trial proceedings . The applicant remained in custody , no new decision extending it having been taken .","On DATE ORG held a preliminary hearing and found that the case was ready for trial . The court ordered that the applicant remain in detention , without specifying any reasons .","DATE and DATE ORG considered the applicant \u2019s requests for his detention pending trial to be lifted on CARDINAL occasions , in each case doing so on DATE as the request was lodged . The court dismissed all of these requests as unsubstantiated .","On DATE the applicant was found guilty of drug dealing and abuse of office and sentenced to CARDINAL years\u2019 imprisonment . On DATE and CARDINAL DATE ORG of the LOC and ORG , respectively , dismissed the applicant \u2019s appeals . The applicant did not present copies of the court decisions taken on the merits of his criminal case .","DATE the applicant was alternately held in FAC ( the \u201c ORG \u201d ) and CARDINAL other facilities .","According to the applicant , the cell in which he was most often held in FAC ( cell no . CARDINAL ) had measured QUANTITY and had been shared by him with CARDINAL other inmates . The cell had had no window . Sometimes a ventilator had been switched on , but the air it brought had come from other cells , including CARDINAL cells where detainees who were sick with tuberculosis had been held . An electric light had been switched on all the time , interfering with detainees\u2019 ability to sleep . On the other hand , this light had been so dim that it had not been possible to read . The cell had had no furniture . Detainees had taken turns to sleep on CARDINAL bare mattresses and had put their food and personal belongings on the floor near them . The toilet had not been separated from the living area , and detainees had lacked privacy when using it . There had not been a sink and a tap had been situated QUANTITY above the toilet . The water from the tap had been used for drinking , washing and flushing the toilet . The food had been very poor . Specifically , detainees had been given a piece of bread with tea for breakfast and dinner , and a bowl of soup and a plate of porridge for lunch . The cell had been infested with insects . CARDINAL DATE the applicant had been detained in cell no . CARDINAL , where CARDINAL detainees had taken turns to sleep on CARDINAL bunk beds . Detainees had not been taken out for exercise and had not been able to take a shower . On numerous occasions the applicant had asked to see a doctor , but his requests had been refused on account of a lack of funds .","The Government acknowledged that cell no . CARDINAL had not had a window or beds . They noted , however , that it had had wooden planks on which the detainees could sleep , a toilet and ventilation . They further noted that cell no . CARDINAL had been equipped with CARDINAL bunk beds . The Government further submitted that the applicant had not been able to take a shower CARDINAL and DATE and DATE in view of his medical condition . For the same reason he had not always been taken outside for walks . The Government additionally noted that the applicant had been given sufficient access to medical services and that during the period at issue he had been visited by a doctor CARDINAL times .","On DATE the applicant was diagnosed with pneumonia and placed on in - patient treatment in the Simferopol SIZO hospital for a period of about one month . Upon his return to the ORG , on CARDINAL and CARDINAL DATE respectively the applicant was examined by doctors , diagnosed with chronic prostatitis and scabies and prescribed an unspecified treatment .","On DATE the applicant was found to need in - patient treatment for scabies , as the previous ORG recommendations had not been followed .","On DATE the applicant was hospitalised in the ORG hospital and was treated until DATE . According to the applicant , in the hospital he had stayed in a room with barred windows located on the fifth floor which had been guarded by CARDINAL policemen , and he had been handcuffed to his bed at all times . He presented a photo of himself being handcuffed to a bed in support of his allegations .","On DATE the Head of ORG conducted an internal investigation following the applicant \u2019s complaints about the conditions of his detention . He noted , in particular , that as of the date of his placement in FAC ( DATE ) , the ORG had been overpopulated by CARDINAL of its capacity . He further noted that cell no . CARDINAL , in which the applicant had been held at that time , had not been equipped with beds but had had wooden planks and a shelf for personal belongings , that the detainees had been provided with mattresses and linen , that the cell had been well ventilated , and that it had offered sufficient artificial light . He further noted that during the period of his stay in the ORG the applicant had twice taken a shower .","According to the applicant , DATE he lost QUANTITY in weight altogether .","On DATE the applicant lodged a civil action with ORG complaining about the conditions of his detention in FAC and seeking moral damages .","On DATE the applicant was given a time - limit to rectify the procedural shortcomings of his submissions , in particular , to present evidence in support of his allegations , grounds for releasing him from the need to present such evidence , to specify , what were the unlawful actions or omissions of the ORG authorities causing him damage and to present his calculations for the amount of damage claimed .","On DATE the court decided to leave the applicant \u2019s claim without consideration on the basis that he had not rectified the procedural shortcomings of his submissions .","The relevant provisions of LAW can be found in the judgment in the case of GPE v. GPE , no . CARDINAL , \u00a7 DATE , CARDINAL DATE .","The relevant provisions of LAW GPE of DATE can be found in the judgments in the cases of GPE v. GPE , no . CARDINAL , \u00a7 DATE , DATE ( insofar as it refers to ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL ) ; PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 CARDINAL , DATE and PERSON GPE , no . CARDINAL\/CARDINAL ( Sect . CARDINAL ) ( PERSON ) ."],"violated_articles":["13","3","5"],"violated_paragraphs":["5-1","5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107688","languageisocode":"ENG","respondent":"HUN","branch":"COMMITTEE","date":2011,"docname":"CASE OF CSORBA v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Andr\u00e1s Saj\u00f3;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE .","NORP In DATE the applicant brought an action against a limited liability company before GPE , requesting the court to order the respondent to pay him fee for using his real estate .","ORG suspended the proceedings on CARDINAL occasions for DATE , pending the outcome of separate legal disputes related to the ownership of the real estate . The applicant \u2019s requests to have the proceedings resumed were dismissed .","On DATE ORG delivered judgment , finding partly for the applicant . In the absence of appeals , the judgment became final on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76677","languageisocode":"ENG","respondent":"ESP","branch":"CHAMBER","date":2006,"docname":"CASE OF OLAECHEA CAHUAS v. SPAIN [Extracts]","importance":1,"conclusion":"No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings","judges":"","text":["The applicant was born in DATE and currently lives in GPE .","On DATE the applicant , a suspected member of ORG ( PERSON ) organisation , a terrorist group founded in DATE whose aim is to transform GPE \u2019s political system by armed force into a NORP proletarian regime , was arrested in GPE ( GPE ) under an international arrest warrant issued by the NORP authorities , following a routine police check of the lists of guests registered at hotels in that province . The applicant was taken into custody pending a ruling on his extradition .","In a decision of DATE central investigating judge no . CARDINAL of the Audiencia Nacional asked the applicant for his views on the extradition , in keeping with LAW of DATE between GPE and GPE .","On DATE the extradition hearing requested by central investigating judge no . CARDINAL was held . The applicant agreed to the \u201c simplified extradition \u201d procedure ( immediate return to the requesting country ) and the application of the \u201c special \u201d rule ( under which he could be tried only in respect of the offence for which extradition was requested ) . The extradition request was based on a terrorist offence .","At the hearing of DATE the applicant declared that although he had agreed to simplified extradition , ORG were required to guarantee his personal safety , his life , his health and his well - being , in conformity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time , as he considered the charges against him unfounded . The NORP press having launched a campaign against him \u2013 which he considered warranted special protection measures \u2013 he also asked for guarantees that he would have access to the press .","The preliminary hearing provided for in LAW was also held on DATE , following which the applicant was detained with a view to his extradition .","NORP In a decision of DATE the examining judge , noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing , called for the application of the measures provided for in LAW of the bilateral treaty between GPE and GPE and stated that in such cases it was for GPE , through its ORG , to obtain the guarantees provided for in that provision from the NORP authorities . The extradition would be conditional on the official communication of those guarantees by the ministry , to enable the examining judge to reach a decision in the extradition proceedings .","On DATE the applicant appealed against the decision of CARDINAL DATE ordering his detention . The appeal was dismissed on DATE . On DATE the applicant filed an appeal against that ruling .","In a decision of DATE the Audiencia Nacional authorised the the applicant \u2019s extradition for trial by the NORP judicial authorities on the charge of terrorism . It stressed the content of the diplomatic note from ORG , which read as follows :","\u201c Concerning the guarantee that the accused will not be subjected to punishment causing physical harm , or to inhuman or degrading treatment , we would remind the NORP authorities that as GPE is party to ORG , ORG and Punish Torture , and LAW , the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity , as well as the guarantees of physical , psychological and moral integrity enshrined in the main human rights protection instruments .","...","Article CARDINAL of the NORP LAW provides : \u201c The death penalty may be applied only for the crime of treason to the country in time of war , and for acts of terrorism ... According to Legislative Decrees no . DATE and no . CARDINAL , the acts of terrorism with which the accused , ORG , is charged are not punishable by death .","NORP However , the crime of terrorism referred to in LAW no . DATE is punishable by life imprisonment . In order to facilitate the extradition in accordance with LAW of the extradition treaty , it is guaranteed that even if the accused is found guilty in a fair trial , he will not be sentenced to life imprisonment but to the sentence immediately below that .","A fair trial is likewise guaranteed under the judicial safeguards enshrined in the LAW , international human rights instruments and domestic law . \u201d","In the aforementioned decision of DATE the examining judge requested that the NORP ORG and ORG be informed of the extradition measure and stated that the agreement of ORG was not needed for the extradition .","On DATE the applicant lodged an appeal to have the decision of DATE overturned and the ordinary extradition procedure applied , under which ORG would decide on his extradition .","In an order of CARDINAL DATE the investigating judge dismissed the appeal . He reminded the applicant that he had agreed to the simplified extradition procedure and that that decision was irrevocable .","On DATE the applicant requested the application of the measures provided for in Rule CARDINAL of ORG , to have his extradition to GPE suspended . He relied on Articles CARDINAL , CARDINAL and CARDINAL of the Convention .","On DATE the Vice - President of FAC decided to apply Rule CARDINAL of ORG and invited the NORP Government not to extradite the applicant before the ORG had examined the case at its meeting of CARDINAL DATE . ORG and ORG to ORG were informed of that decision by telephone at TIME , with subsequent confirmation by fax .","On DATE the NORP Government sent the ORG a decision of investigating judge no . CARDINAL of FAC , to whom the ORG \u2019s request concerning the temporary suspension of the extradition had been transmitted . In it the judge rejected the request for the application of Rule CARDINAL for the following reasons :","\u201c The applicant agreed to the extradition of his own free will , being fully aware of the consequences . That being so , the decision ordering his extradition is final and no appeal lies against it .","Furthermore , the NORP authorities have provided the guarantees requested by the NORP courts . Finally , the applicant applied to ORG without exhausting the remedies available to him in NORP law . \u201d","On DATE the applicant was extradited to GPE , where he was incarcerated .","On DATE the ORG asked the NORP Government , in accordance with Rule CARDINAL \u00a7 CARDINAL of ORG , what steps had been taken to ensure the application of the interim measure indicated .","Having received no reply from ORG , on DATE the ORG communicated the application under LAW , DATE and DATE of the Convention .","NORP In DATE the applicant was granted conditional release by the NORP anti - terrorism authorities for lack of sufficient evidence that he was a member of ORG . The applicant \u2019s freedom was restricted by an order prohibiting him from leaving GPE and GPE or changing his place of residence without the authorisation of a judge , and obliging him to report to the judge once DATE . The decision of the anti - terrorism authorities also indicated that as the criminal charges against the applicant were maintained , the proceedings against him remained open pending new developments in the investigation .","NORP In DATE the NORP authorities asked the NORP authorities to extend the extradition charges so that the applicant could be tried in GPE for financing the ORG terrorist group from abroad . Following that request a hearing before the Audiencia Nacional was scheduled for DATE .","On DATE the applicant once again asked the ORG to apply Rule CARDINAL and ask the NORP Government to suspend the hearing until it had ruled on his application .","On DATE the Fourth Section of the ORG considered that the circumstances underlying the applicant \u2019s request were not of the kind to which , in the ORG \u2019s practice , Rule CARDINAL was applied . The request was accordingly dismissed .","The hearing went ahead as planned and , by a decision of DATE , the Audiencia Nacional allowed the requested extension . The applicant lodged an amparo appeal against that judgment which is still pending before ORG .","Following the judgment handed down by ORG on DATE in the case of PERSON and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , ORG CARDINAL-I ) , the applicant requested permission to submit additional pleadings to the ORG . The ORG agreed and the Government were informed . In DATE the parties submitted their observations .","..."],"violated_articles":["34"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3","5","6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92253","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"BARAN-BARANOWSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence at the Prison in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested on suspicion of trafficking in drugs and counterfeit GPE dollars while leading an organised criminal group .","Later , several other members of the same criminal group were detained and charged in connection with the investigation of the applicant \u2019s activities . The investigation was conducted by ORG of ORG .","On DATE the ORG remanded the applicant in custody , relying on the reasonable suspicion that he had committed the offences in question . It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might tamper with evidence , go into hiding or induce witnesses to give false testimony . The court also stressed the severity of the anticipated sentence .","An appeal by the applicant against the detention order was dismissed on DATE by ORG . Subsequent appeals against decisions extending his detention were all unsuccessful . In his appeals he argued that the charges against him were based on unreliable and contradictory evidence . He further pleaded not guilty .","On DATE the applicant began serving a CARDINAL - year prison sentence , given by ORG in a different set of criminal proceedings .","In the course of the investigation , the applicant \u2019s detention was extended on several occasions , inter alia on DATE and DATE and CARDINAL DATE and DATE by ORG , DATE and DATE , CARDINAL May and DATE , DATE , CARDINAL DATE and DATE , and DATE , DATE and DATE by ORG .","On DATE , on a decision by ORG the applicant \u2019s detention was further extended until DATE .","In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant \u2019s detention . They considered that the need to secure the proper conduct of the proceedings , in particular the need to verify evidence from CARDINAL suspects and CARDINAL witnesses and to have them all confronted justified holding him in custody . They further stressed the extensive body of evidence to be considered in the case and the need to obtain opinions from several experts , including those with expertise in toxicology and chemistry .","On DATE ORG decided to lodge a request with ORG to have the applicant \u2019s detention further extended until DATE .","On DATE ORG lodged a bill of indictment with ORG . The bill of indictment comprised numerous charges of trafficking in drugs and other illicit substances and counterfeit GPE dollars brought against several defendants , who were all acting in an organised criminal group . The maximum anticipated prison sentence against the applicant was DATE .","On DATE ORG delivered a judgment . The applicant was found guilty as charged and sentenced to DATE imprisonment . He appealed . At present the appeal proceedings are pending .","The relevant domestic law and practice concerning the imposition of detention during judicial proceedings ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are stated in the ORG \u2019s judgments in the cases of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE and PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72640","languageisocode":"ENG","respondent":"CYP","branch":"CHAMBER","date":2006,"docname":"CASE OF PASTELLIS v. CYPRUS","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant lodged a civil action ( no . CARDINAL ) before ORG of GPE concerning the payment of the remainder of the price agreed under the contract of sale of his enterprise in GPE . The total claim was CARDINAL NORP ( ORG ) , which was the equivalent of QUANTITY ( ORG ) at the relevant time .","Between the above date and CARDINAL DATE the ORG dealt with the submission of the parties\u2019 pleadings and several applications for their amendment , for the purposes of which a number of adjournments or requests for extensions took place . CARDINAL adjournments took place in this period , CARDINAL at the applicant \u2019s request , CARDINAL at the defendant \u2019s request and CARDINAL by the court itself .","On DATE the case was adjourned until DATE on the parties\u2019 request . The hearing of the case commenced on that date and was fixed to continue on DATE but following an adjournment requested by the applicant it was fixed for CARDINAL DATE . On DATE the defendant raised an objection challenging the jurisdiction of ORG since the contract between the parties had been concluded in GPE . The court fixed the hearing in respect of the objection for CARDINAL DATE . Following CARDINAL adjournments at the defendant \u2019s request the hearing took place on DATE .","On DATE the court dismissed the defendant \u2019s objection pertaining to its jurisdiction and fixed the hearing for DATE .","On DATE an appeal ( no . CARDINAL ) was filed against the district court \u2019s ruling of CARDINAL DATE , concerning its jurisdiction to try the case . Consequently , the case was taken off the trial list pending the result of the appeal .","On DATE the defendant was served with a notice by the Registrar of ORG requesting him to pay the due fee for the preparation of the record of the first instance proceedings . The court \u2019s record was sent by ORG to ORG on DATE .","On DATE the parties were notified by the Chief Registrar of ORG that the appeal was fixed for hearing on DATE . On that date however the case was adjourned to enable the applicant to file a cross - appeal .","On DATE ORG found that ORG had jurisdiction to try the action and dismissed the appeal .","On DATE the applicant applied for a date of mention concerning the continuation of the proceedings and the case was fixed for this purpose for DATE . On that date it was fixed to be heard on DATE .","Between the above date and DATE the case was adjourned several times . CARDINAL of these adjournments were at the applicant \u2019s request , CARDINAL at the parties\u2019 request and CARDINAL at the defendant \u2019s .","On DATE the ORG reserved its judgment . This was delivered on DATE dismissing the applicant \u2019s action .","On DATE the applicant filed an appeal ( appeal no . CARDINAL ) against the first instance judgment .","The notice of the appeal was sent by the Registrar of ORG on DATE to ORG indicating that the file of the case had been given for the purposes of typing the record of the proceedings and that this would be available in DATE due to the excessive volume of work . The record was necessary in order for the appeal to be fixed for hearing . On DATE the applicant paid the fee due for the court \u2019s record .","On DATE the Chief Registrar notified the parties that the appeal was fixed for directions for DATE . On that date the parties were instructed to file their outline addresses .","On DATE the Chief Registrar sent a notice to the parties informing them that the appeal was fixed for hearing on DATE . On that date the parties\u2019 addresses were heard and judgment was reserved .","On DATE the Chief Registrar of ORG informed the parties that due to the resignation of one of the presiding judges , the appeal had to be retried . Following CARDINAL adjournments on the basis of the respondent \u2019s request , the parties\u2019 addresses were heard on DATE and judgment was reserved .","On DATE ORG delivered its judgment setting aside the first instance decision and ordering a retrial . The costs of both the first instance trial and the appeal were awarded in favour of the applicant . The parties were then notified that the case file had been returned to ORG on DATE and they were requested to file an application to that court for the case to be fixed .","On DATE the applicant applied to the Registrar of the ORG requesting that the case be fixed for retrial .","On DATE an application was lodged by the applicant requesting that the case be fixed for directions . In the relevant court records of DATE , the court stated that the case should be given priority and that the PERSON should inform the court why the case was not put before it on DATE when the applicant had applied for the case to be fixed . In the relevant court records of DATE , the PERSON noted that the file of the case had been returned to ORG for the assessment of costs which took place on DATE and that it was not known why the case had not been put before a judge . However , the PERSON pointed out that the applicant \u2019s lawyers had not pursued the application for DATE .","The case was then fixed for CARDINAL and DATE but following an adjournment at the defendant \u2019s request it was postponed until DATE . On DATE the case was settled between the parties with a decision in the applicant \u2019s favour for the amount of ORG DATE plus the costs and expenses that had been awarded by ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112224","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2012,"docname":"LEITENDORFS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mrs B. Didrihsone , a lawyer practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mrs I. Reine .","The facts of the case as submitted by the parties may be summarised as follows .","In DATE the applicant was arrested on suspicion of having committed an offence . On DATE the ORG found the applicant guilty of robbery with aggravating circumstances and sentenced him to DATE and DATE imprisonment . The judgment became final in DATE .","DATE to DATE the applicant was in FAC , and from DATE to CARDINAL DATE and DATE to DATE he served his sentence in FAC . He brought numerous complaints before various ORG authorities . In particular , he complained that from CARDINAL to DATE and from CARDINAL to DATE his anti - tuberculosis treatment had been interrupted .","In the same letter he also complained that he had been denied a referral for CARDINAL particular medical tests , including a head computed tomography ( GPE ) an electroencephalograph ( ORG ) , which he had requested in DATE and an oscillography , which he had requested in DATE . The applicant alleged that the tests were indispensable in order to establish his mental - health problems .","On DATE ORG replied that the state of the applicant \u2019s mental health had been regularly examined by a psychiatrist in prison , and that ORG ( \u201c the MADEKKI \u201d ) had examined the quality of the medical assistance at the place of the applicant \u2019s detention CARDINAL times without establishing any violation in this respect . The applicant was also informed that , according to information provided by ORG and the PERSON , he did not have medical symptoms which would necessitate the tests he had requested .","NORP In DATE the applicant complained to ORG about the quality of food and water and the size of bed linen in FAC . On DATE ORG dismissed the complaints .","NORP In that letter the applicant also mentioned that in FAC prisoners suffering from tuberculosis had been subjected to solitary confinement where they could not receive bed linen or adequate clothes . ORG informed the applicant that , in accordance with section CARDINAL(CARDINAL ) of LAW , detainees were not provided with bed linen in the isolation wards and could not take exercise .","The Government relied on the report of CARDINAL DATE which the head of ORG had sent to ORG stating that from DATE the applicant had had CARDINAL consultations with the prison psychiatrist and CARDINAL consultations with the prison doctor . The applicant was diagnosed as suffering from neurosis .","According to a report ( without a date ) drawn up by the head of the tuberculosis unit of ORG , the applicant had begun serving his sentence in FAC on DATE . On DATE he fell ill and on DATE he had an X - ray examination following which , on DATE , he was transferred to the tuberculosis unit of ORG in GPE for further tests and treatment . On DATE the final diagnosis confirmed that the applicant had contracted tuberculosis , and from DATE to DATE he received anti - tuberculosis treatment , in accordance with the guidelines set by ORG ( \u201c the WHO \u201d ) . Afterwards he was transferred to the tuberculosis unit in ORG where he continued receiving adequate treatment until DATE . According to the results of the medical examinations of CARDINAL June and DATE , the applicant showed no signs of tuberculosis ; he nevertheless remained under the supervision of GPE specialists until DATE .","The above report mentioned that , according to the guidelines set by the ORG , only an interruption of DATE could be considered as a suspension of treatment for tuberculosis .","In a letter of CARDINAL DATE ORG , at ORG request , supplied the information that in FAC TB patients were detained separately from the others in a unit which had been refurbished in DATE and had all the necessary facilities including showers , a gym and an area for outdoor activities , and that the applicant was provided with bed linen . The number of inmates per cell did not exceed CARDINAL to CARDINAL .","NORP The letter also stated that , on account of insufficient funds , the prison had been unable to provide detainees with the statutory hygienic products until DATE .","At ORG request , on DATE the PERSON sent its conclusions on the medical assistance provided to the applicant in prisons in GPE . It stated that during the inspections carried out in DATE the inspectors had discovered that the medical unit of ORG and FAC had not obtained the certification envisaged by LAW CARDINAL of DATE . It further stated that the medical unit of ORG had received the certificate in DATE and that in DATE the ORG had noted various improvements in the functioning of the Prison hospital .","The PERSON further explained that the CARDINAL head examinations requested by the applicant were not normally carried out in diagnosing mental illness or behaviour or neurotic disorders .","According to the extracts from the applicant \u2019s medical history , the applicant sustained head injuries in DATE and DATE . In DATE and DATE he was diagnosed as suffering from neurosis . In CARDINAL it was recommended that he study from home on account of his nervous disposition .","On DATE the applicant underwent a forensic medical examination . It concluded that the applicant did not suffer from mental illness . The experts found that the applicant had organic personality and behaviour disorder and an addiction to alcohol , and that he would be able to receive adequate medical treatment in prison .","According to a medical report of CARDINAL DATE , issued by a practitioner from the applicant \u2019s former place of residence , the applicant was diagnosed as suffering from encephalopathy of a post - traumatic or toxic kind . No recommendation as to further medical treatment had been noted .","On DATE , at the applicant \u2019s request , he was transferred to ORG . According to the medical report of DATE , drawn up by the head of the hospital , the applicant was diagnosed as suffering from mixed - type encephalopathy ; he did not have medical symptoms which would necessitate carrying out the particular examinations he had requested .","On DATE an official from ORG informed the applicant that in order to determine his fitness for work he should have a consultation with a neurologist .","In response to a request from the applicant of DATE , in a letter of CARDINAL DATE a private company offered to pay the cost of the examinations prescribed by his neurologist in the sum of ORG CARDINAL ( EUR CARDINAL ) .","On DATE the applicant had a consultation with a neurologist in a civil hospital . He was diagnosed as suffering from post - traumatic and toxic encephalopathy . He was advised to undergo an ORG , a dopplerography and an echocardiogram and to have a consultation with a psychiatrist . The medical records show that on DATE the applicant underwent an ORG and a dopplerography in a civil hospital . There is no information as to the results of the tests .","NORP In response to the applicant \u2019s enquiries , on DATE the PERSON concluded that the quality of the anti - tuberculosis treatment which the applicant had received from CARDINAL DATE until DATE in ORG had been adequate . It also stated that the applicant had received vitamins and specially enriched nutrition during the treatment and that the latest examinations showed that the applicant \u2019s health condition had significantly improved . It also established that in DATE the applicant had been repeatedly examined by a prison doctor in FAC and had received appropriate medication .","NORP In response to the applicant \u2019s complaint that he had been denied specific head examinations , on DATE the PERSON informed him that the medical examinations he had requested would be carried out if additional financial resources were allocated to ORG and if the doctor recommended that he undergo the examinations . He was informed that , according to ORG ( see paragraph CARDINAL below ) , he could have the examinations at his own expense .","NORP In response to a letter from the applicant of CARDINAL DATE , in which he complained about the interruption of his anti - tuberculosis treatment , ORG of Tuberculosis and PERSON explained on DATE that the anti - tuberculosis treatment had to be supplied regularly and that frequent interruptions might have an impact on the effects of the treatment , especially if the patient received PERCENT of the prescribed treatment . It also noted that in the applicant \u2019s case the interruption of DATE would not imperil his health .","Pursuant to section CARDINAL , convicted persons shall receive the minimum free ORG - granted health care in the amount established by ORG . In addition , ORG , within its budgetary means , shall provide convicts with the following health - care services : primary , secondary and ( partial ) tertiary medical assistance ; urgent dental care ; examinations of their health condition ; preventive care ; medical treatment and injections prescribed by a doctor ; and medical equipment .","Pursuant to LAW , the medical examinations which are necessary for ORG and Working Capability to adopt an initial decision shall be financed from the ORG budget .","Section CARDINAL provides that , upon the request of a detainee , the administration of the penitentiary institution may agree with the administration of a civil medical institution on consultation and treatment at the detainee \u2019s expense ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105269","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2011,"docname":"CASE OF GIURAN v. ROMANIA","importance":1,"conclusion":"Remainder inadmissible;No violation of Art. 6-1;No violation of P1-1","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Mihai Poalelungi;Nona Tsotsoria","text":["The applicant was born in DATE and lives in ORG . He is retired .","On DATE he lodged a criminal complaint against ORG , claiming that she had stolen certain items from his flat . He stated that ORG regularly came to his flat to clean it and that on DATE she had removed several items of jewellery and clothing from his flat . He had only realised in DATE that those items had disappeared from his flat .","The case was heard by ORG , which delivered its first - instance judgment on DATE finding ORG guilty and sentencing her to CARDINAL months\u2019 imprisonment , suspended . ORG was ordered to pay the applicant damages of MONEY ( ROL \u2013 MONEY ( ORG ) at the time ) , representing the estimated value of the stolen items , and ORG ( approximately EUR CARDINAL ) in legal fees . ORG based its decision on the statements of the parties and of CARDINAL witnesses . According to CARDINAL of the witnesses , the applicant had complained to him in DATE that several items were missing from his flat . According to the second witness , in DATE the defendant had shown him several items of jewellery and clothing , mentioning that she had received them as a gift from the applicant .","On DATE ORG dismissed an appeal by ORG and the judgment of DATE thus became final and enforceable .","On an unspecified date the Prosecutor General of GPE lodged an extraordinary appeal ( recurs in anulare ) against the judgment of DATE . ORG argued that ORG had been wrongfully convicted , as none of the evidence adduced was conclusive as to her guilt . This had led to a breach of her right to be presumed innocent until proved guilty . The prosecutor also indicated that ORG had submitted CARDINAL pieces of evidence as part of her defence which had been ignored in the ordinary proceedings . CARDINAL of the documents was a request lodged by the applicant to the ORG association in which he sought an exemption from utility costs for DATE , when he would be away in GPE . This document was relevant , as the applicant stated that ORG entered his flat only when he was there and he had declared that the items had been stolen on the exact date of DATE , when , according to that document , he was not in GPE . The second document was a report of a search conducted by the police at the home of the defendant , which indicated that none of the items claimed to have been stolen from the applicant \u2019s flat had been found there .","In a decision of CARDINAL DATE ORG and ORG allowed the extraordinary appeal , quashed the judgments of CARDINAL DATE and DATE , acquitted ORG and relieved her of the obligation to pay the applicant compensation for the stolen items and the legal costs .","The court held that the prior conviction had been based on the statements of CARDINAL witnesses who declared that they knew that ORG was doing housework for the applicant , that he owned the items mentioned in his criminal complaint and that after DATE some of the items were seen by CARDINAL of the witnesses in the house of ORG Nevertheless , the court indicated that these statements were contradicted by the evidence in the case file indicating that the applicant had been away from GPE DATE and DATE . Furthermore , taking into account that he had always stated that ORG only did housework in his flat when he was there , the court indicated that his submission that he had not noticed ORG leaving the flat with so many items was not credible .","The court further concluded that the evidence adduced in the case was both contradictory and inconclusive in respect of the date the alleged theft was committed and of whether the defendant had committed the theft . It therefore quashed the earlier decisions on the ground that they had not been lawful and acquitted ORG of all charges , relieving her also of the obligation to pay compensation for the stolen items and for the court costs incurred by the applicant .","NORP The applicant attended the hearing and submitted his arguments in support of his claims .","For a summary of the relevant domestic - law provisions concerning this type of extraordinary appeal ( recurs in anulare ) see the judgment in the case of PERSON v. GPE ( no . CARDINAL , \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4688","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1999,"docname":"MASSEY v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is an NORP citizen , born in DATE and living in GPE . He is the father of PERSON .","He is represented before the ORG by PERSON , a lawyer practising in GPE .","On DATE PERSON was killed in a terrorist bombing in GPE . The cars used for the bombing were stolen in GPE in GPE on DATE .","The NORP authorities conducted extensive inquiries but were unable to bring charges against any person . The files remain open . ORG ( ORG ) in GPE has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results . However , there was no formal murder inquiry by the ORG .","On DATE ORG , a television station in GPE , broadcast a programme in which the adequacy of the ORG inquiry was discussed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4565","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":1999,"docname":"WOLFHARD KOOP-AUTOMATEN GOLDENE 7 GmbH & Co. KG v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant company is a limited liability company under NORP law with its registered office in PERSON . It has for its object the installation and operation of gambling machines in restaurants in GPE .","It is represented before the ORG by Mr PERSON , a public law professor at ORG .","A.","In DATE the applicant company filed a declaration in respect of entertainment tax ( PERSON ) for DATE of DATE regarding CARDINAL gambling machines installed and operated in the area of GPE and estimated the tax due at MONEY ( DM ) , on the basis of a prescribed global tax rate of DM CARDINAL per month and per machine , irrespective of the effective returns generated by that machine . At the same time , it lodged an administrative appeal against the tax assessment to the extent that it exceeded DM CARDINAL , i. e. DM CARDINAL for each machine . GPE dismissed the appeal .","Thereupon the applicant company instituted proceedings with ORG ( Verwaltungsgericht ) , arguing that the Eutin Statute on entertainment tax for gambling machines ( ORG \u00fcber die Erhebung einer Vergn\u00fcgungssteuer f\u00fcr das PERSON Spiel- und ORG - \u201c Statute on entertainment tax \u201d ) was void because it lacked a proper legal basis . ORG dismissed the action on DATE .","On DATE ORG ( Oberverwaltungsgericht ) dismissed the applicant company \u2019s appeal .","ORG , in detailed reasoning based on the case - law of ORG ( Bundesverfassungsgericht ) and ORG ) , found that the tax assessments were lawful . In particular the underlying Statute on entertainment tax had a sufficient legal basis in section MONEY ) of ORG ) , which could not be objected to from a constitutional point of view . In this respect , the court , referring to the relevant provision of LAW ) , considered that the Land was competent to enact legislation concerning local excise and luxury taxes ( Verbrauch- und Aufwandsteuern ) unless such matters were covered by federal legislation . The entertainment tax in question constituted a local luxury tax within the meaning of this provision which was not similar to any taxes regulated by federal legislation . Moreover , in the court \u2019s view , section CARDINAL(CARDINAL ) of LAW was sufficiently precise , even if in some cases the term \u201c gambling machines \u201d might necessitate interpretation . Furthermore , the fact that section CARDINAL(CARDINAL ) of LAW only authorised levying entertainment tax with regard to gambling machines did not amount to discrimination . The court , referring to the discretionary powers of the legislator in tax matters , found no indication of arbitrariness in the impugned taxation and the related procedural matters . It found in particular that the taxation was based on the increasing number of gambling establishments in the municipalities and the problems resulting therefrom . The tax did not , therefore , merely serve the purpose of constituting a municipal source of revenue , but also that of opposing the expansion of gambling establishments .","Finally , in the court \u2019s view , the tax rates fixed in the Eutin Statute on entertainment tax did not exceed the statutory limits . Having regard to the relevant case - law , the court observed that tax rates were only permissible to the extent that taxes were eventually financed by the users of the gambling machines , whereas , for the persons installing and operating the machines , the tax was to be regarded as no more than a transitory item . There was no indication that the rate of the entertainment tax in question was such as to leave the gambling machine business without any income . Moreover , the applicant company had failed to show that , in the specific case , the business was unprofitable on account of the tax levied . As regards the applicant company \u2019s further arguments , the court considered inter alia that the defendant municipality was not prevented from fixing global tax rates , irrespective of the returns of individual machines and of whether they were installed and operated in a gambling establishment , in a restaurant or in a similar establishments . The exemptions for machines without any prospect of winning or for particular machines used in fairs could not be regarded as unreasonable .","","On DATE ORG dismissed the applicant company \u2019s request for leave to appeal on points of law . It found that the case raised no issue of fundamental importance and that the findings of ORG were in line with both the case - law of ORG and its own . Moreover , taking into account the global assessment of the tax in question , the latter could not be regarded as turn - over tax , and there had , therefore , been no reason to refer the case to ORG on a question of community law concerning turnover - tax .","On DATE ORG refused to entertain the appeal brought by the applicant company and similar appeals which had been joined to it . It found that the appeals were of no fundamental importance as the questions raised were already settled by the court \u2019s case - law . Furthermore , they had no prospect of success . In this respect , ORG observed that the taxes in question only indirectly affected the ORG freedom to exercise their profession . Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW expressly mentioned local excise and luxury taxation . ORG confirmed that section CARDINAL(CARDINAL ) of ORG inter alia was sufficiently precise . The concept of \u201c local excise and luxury taxes \u201d had been clarified in its case - law . Moreover , section CARDINAL(CARDINAL ) of ORG specifically limited the municipal power of taxation to a specific entertainment tax . Furthermore , the traditional local excise and luxury taxes , such as the entertainment tax , could not be regarded as similar to a federal tax . The prohibition on levying similar taxes found in federal legislation ( Article CARDINAL \u00a7 CARDINAL of LAW ) did not , therefore , apply here . ORG further considered that GPE had not exceeded its powers by emphasizing the regulatory aspect of the entertainment tax rather than its function as a source of municipal revenue . The lower courts had correctly held that the taxation did not amount to an unreasonable burden and did not render the business concerned unprofitable . Finally , according to ORG , ORG had not been obliged to refer the case to ORG as the relevant issues were settled in the latter \u2019s case - law .","B. Relevant domestic law","Article CARDINAL of the NORP LAW regulates legislative competences in tax matters . Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL concern the exclusive and concurrent competences of the Federation . Paragraph CARDINAL provides that the ORG shall have legislative competence in respect of local excise and luxury taxes as long and in so far as they are not identical with taxes imposed by federal legislation . Article CARDINAL , which concerns the apportionment of tax revenues , stipulates inter alia , in its paragraph CARDINAL , first sentence , that revenue from local excise and luxury taxes shall accrue to the municipalities .","According to section CARDINAL ) of ORG , as amended , municipalities are authorised to levy an entertainment tax on gambling machines unless such machines are installed in places subjected to the casino tax ( Spielbankabgabe ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61141","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2003,"docname":"CASE OF BENACKOVA v. SLOVAKIA","importance":4,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Nicolas Bratza","text":["The applicant was born in in DATE and lives in GPE .","On CARDINAL DATE the applicant filed an action for damages with the GPE I ORG . She claimed compensation for a work - related accident .","On DATE ORG dismissed the action . The applicant appealed on DATE .","On DATE ORG quashed the first instance judgment .","On DATE the applicant extended her action in that she also claimed the protection of her right to protection of her reputation .","On DATE the GPE I ORG ordered an expert opinion to be submitted .","The applicant filed a petition pursuant to LAW in which she complained about the length of the proceedings . On DATE ORG found that the Bratislava ORG had violated the applicant \u2019s constitutional right to have her case examined without undue delays .","On DATE the Bratislava ORG ordered an expert opinion . Subsequently the applicant unsuccessfully challenged ORG judge .","On DATE ORG decided on the expert \u2019s fees . The applicant appealed against this decision . On DATE she submitted to the court her comments on the expert \u2019s conclusions .","On DATE ORG invited the parties to submit further information . The proceedings are pending .","Article CARDINAL ( CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .","Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon the petition ( \u201c podnet \u201d ) presented by any individual or a corporation claiming that their rights have been violated .","According to its case - law under the former LAW ) of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner \u2019s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .","As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision ORG has the power , in case that it founds a violation of LAW ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL\/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) .","According to an explanatory letter by the President of ORG of DATE , nothing has prevented ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed . The letter further states that where ORG earlier found a violation of LAW ) of the LAW , a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of ORG . However , when deciding on such cases ORG will , as a rule , take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of LAW ) of LAW ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82276","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2007,"docname":"YILDIRIM v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr M. A. Altunkalem , a lawyer practising in ORG . ORG ( \u201c the Government \u201d ) did not designate an Agent for the purposes of the proceedings before the ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was working as a driver at the ORG fire department at the time of the events .","An undercover agent of the Anti - Smuggling and Organised Crime Department of ORG ( hereinafter : \u201c the ORG \u201d ) received information that the applicant was selling PERSON cartridges .","After having received information that the applicant had just returned from GPE , the police officers at ORG searched the applicant \u2019s house on DATE and retrieved CARDINAL PERSON cartridges . The applicant was arrested .","The applicant maintains that he was beaten by CARDINAL or QUANTITY police officers during arrest . He further claims that while he was held in detention he was beaten , given electric shocks and hosed with cold water .","On DATE , at TIME , the applicant was examined by a doctor at ORG . According to the medical report issued in this respect , the applicant did not bear any physical signs of illtreatment .","According to a report drafted by a police officer and signed by the applicant , co - accused and a lawyer , the applicant met with his lawyer on DATE at TIME","On DATE the applicant was interrogated . He was informed of his rights , particularly his right to a lawyer , which he waived . The applicant claimed , inter alia , that GPE owed him money and that he took PERSON cartridges from him as a guarantee of payment . He further submitted that he later gave CARDINAL of these cartridges to ORG as a guarantee for his own debt .","In TIME of DATE the applicant was examined by a doctor at ORG . According to the medical report issued DATE , the applicant did not bear any physical signs of ill - treatment .","On DATE the applicant was brought before the ORG public prosecutor . He was informed of his rights , particularly his right to a lawyer which he initially waived . The applicant later changed his mind and his lawyer , PERSON , was present at the interrogation . The applicant acknowledged his statements made to the police and reiterated that ORG had given him CARDINAL PERSON cartridges to pay for his debt and that he had given them to ORG as a guarantee for his own debt to him .","On DATE the applicant was brought before the investigating judge of ORG , who ordered his remand in custody . The applicant was placed in ORG prison .","On DATE the applicant was examined by a prison doctor . The medical report drafted on that occasion found signs of blows on the applicant \u2019s right shin bone in CARDINAL or CARDINAL places .","On DATE the public prosecutor at ORG filed a bill of indictment with the same court against the applicant and CARDINAL others , accusing them of smuggling CARDINAL PERSON bullets from GPE on DATE and of being in possession of unlicensed bullets .","On CARDINAL DATE the applicant met with his lawyer . The latter petitioned the authorities for a further medical report .","On DATE the applicant was examined by a doctor at ORG . According to the medical report issued DATE , the applicant had an old ecchimose below his right knee .","On DATE the prison director sent these reports to the ORG public prosecutor \u2019s office , in order that they be deposited in the case file before ORG .","On DATE the applicant \u2019s lawyer submitted a petition to the court requesting the applicant \u2019s release . He also stated that the applicant had been subjected to serious ill - treatment whilst in police custody , as was shown in the medical reports . He requested the prosecuting authorities to launch an investigation into the allegation of illtreatment .","In a hearing held on DATE the applicant acknowledged the contents of his statements made to the police , the public prosecutor and the investigating judge . He reiterated that ORG gave him a bag for safekeeping and that he did not know there were bullets inside . He further submitted that he did not know how the CARDINAL cartridges ended up in his house and that they must have fallen out in the car when he and ORG went to give the bullets to ORG The medical reports issued during his detention in police custody were read out to him . He stated that he had nothing to say . He was read out the medical report of DATE . The applicant submitted that the report was correct and that he was hit on his leg but as he was blindfolded he did not see how his leg was hit .","On DATE the applicant \u2019s lawyer applied to ORG for a revision of the applicant \u2019s continued detention . He also drew the court \u2019s attention to the fact that no action had been taken in relation to the applicant \u2019s complaint of ill - treatment .","By a decision of DATE a single judge of that court rejected this request and confirmed the applicant \u2019s continued detention .","In a hearing held on DATE the applicant stated that he had been framed . On DATE , the court , taking into account the contradictions in the applicant \u2019s statements throughout the proceedings , the statements of the co - accused and the material evidence , convicted the applicant of the offence and sentenced him to DATE and CARDINAL months\u2019 imprisonment and a fine .","In his petition for appeal to ORG dated DATE , the applicant \u2019s lawyer repeated the allegation of ill - treatment .","On DATE ORG dismissed the appeal and upheld the judgment of ORG .","A description of the relevant domestic law at the material time can be found in GPE and others v. GPE ( nos . CARDINAL and QUANTITY , \u00a7 \u00a7 CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67889","languageisocode":"ENG","respondent":"ARM","branch":"ADMISSIBILITY","date":2004,"docname":"\"ENERGIA\" PRODUCERS` COOPERATIVE v. ARMENIA","importance":4,"conclusion":"Inadmissible","judges":"Mark Villiger","text":["The applicant , \u201c ORG , is a private construction company that was founded in DATE and has its registered office in GPE , GPE . The applicant company was represented before the ORG by its manager , Mr Hamlet Hovsepyan .","company , may be summarised as follows .","On an unspecified date , the applicant company instituted proceedings against another private company , claiming that the latter had failed to comply with its contractual obligations and seeking damages .","On DATE ORG ( \u0540\u0540 \u057f\u0576\u057f\u0565\u057d\u0561\u056f\u0561\u0576 \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) rejected the applicant company 's claims as unsubstantiated . This judgment was subject to appeal within DATE .","No appeal was lodged so the judgment entered into force .","On DATE the Convention entered into force in respect of GPE .","On DATE an advocate holding a special licence lodged an appeal in cassation ( \u057e\u0573\u057c\u0561\u0562\u0565\u056f \u0562\u0578\u0572\u0578\u0584 ) with ORG ( \u0540\u0540 \u057e\u0573\u057c\u0561\u0562\u0565\u056f \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) on behalf of the applicant company , seeking to reopen the proceedings on the ground of newly discovered circumstances . As a newly discovered circumstance , the advocate submitted an independent expert opinion prepared on DATE .","On DATE ORG dismissed the appeal , finding that the piece of evidence adduced could not be regarded as a newly discovered circumstance having vital importance for the case .","Article CARDINAL of the Code of Civil Procedure of DATE ( \u0540\u0540 \u0584\u0561\u0572\u0561\u0584\u0561\u0581\u056b\u0561\u056f\u0561\u0576 \u0564\u0561\u057f\u0561\u057e\u0561\u0580\u0578\u0582\u0569\u0575\u0561\u0576 \u0585\u0580\u0565\u0576\u057d\u0563\u056b\u0580\u0584 ) provides that a judgment of ORG enters into force within DATE from the date of its pronouncement .","According to Articles CARDINAL , CARDINAL and CARDINAL , judgments of ORG , which have entered into force , may be reviewed through proceedings in cassation on the basis of an appeal lodged by ORG and his Deputies , or by advocates holding a special license and registered with ORG . These appeals are examined by ORG .","Article CARDINAL provides that an appeal in cassation can be brought on points of law and procedure , or on the ground of newly discovered circumstances . There is no time - limit for lodging an appeal on the ground of newly discovered circumstances .","According to LAW , the proceedings shall be reopened on the ground of newly discovered circumstances having vital importance for the case which the parties were not or could not be aware of or which the parties were aware of but were unable to present them in court for valid reasons .","According to Articles CARDINAL and CARDINAL , ORG reviews the judgments within the grounds presented in the appeal . The ORG can either dismiss the appeal , or otherwise quash the whole or part of the judgment and remit the case for a new examination ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95081","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2009,"docname":"CASE OF DUBOVIK v. UKRAINE","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant left GPE for GPE . From that time on she has been residing in GPE with her family .","On DATE the Deputy Prosecutor General of Belarus issued an arrest warrant in respect of the applicant on suspicion of aggravated trafficking in human beings and organised crime .","On DATE the applicant was apprehended in GPE under an international arrest warrant with a view to her extradition issued on DATE and a ORG letter of DATE to the NORP authorities informing them that the applicant was on the territory of GPE and requesting them to find and arrest her with a view to extradition . She was thus separated from her newly - born child , who was exactly DATE when the applicant was apprehended .","On DATE ORG of Kyiv ( \u201c the ORG \u201d ) ordered the applicant 's detention for DATE pending an official request for her extradition to GPE . On DATE ORG upheld that decision .","On DATE the applicant applied for refugee status in GPE .","On DATE ORG of Ukraine ( \u201c the ORG \u201d ) received an official request from the Deputy Prosecutor General of GPE for the applicant 's extradition to GPE with the aim of prosecuting her for aggravated trafficking in human beings and organised crime . The request contained detailed information about criminal acts of which the applicant was suspected by the NORP authorities , as well as assurances that the applicant would be prosecuted only for these crimes , that she would be free to leave GPE after her trial and serving a sentence , and that she would not be deported or expelled to any third country without GPE 's consent . No decision was taken with regard to the above request .","On DATE ORG ordered the applicant 's continued detention without a fixed time - limit and until the ORG had decided on her extradition to GPE . ORG upheld this decision on DATE .","On DATE the President of the ORG decided to apply Rule CARDINAL , indicating to the Government that the applicant should not be extradited to GPE .","NORP By letter of CARDINAL DATE , ORG sent to the First Deputy Prosecutor General of GPE assurances that , if extradited to GPE , the applicant would not be subjected to any kind of treatment prohibited by LAW , that she would receive a fair trial , and that the death penalty would not be applied in her case .","On DATE ORG ( \u201c the Committee \u201d ) granted the applicant refugee status .","On DATE the applicant received a refugee certificate .","On DATE , DATE the applicant 's lawyer lodged applications for her release with ORG on the ground that the applicant had refugee status and therefore could not be extradited .","By letters of CARDINAL and DATE , ORG refused to consider the applications for release on the ground that there was a final and binding court decision ordering the applicant 's detention pending extradition and that it was the prosecution service that was competent to decide whether there were grounds or not for the applicant 's detention .","On DATE the ORG lodged an objection with the ORG against its decision of DATE . The objection had the effect of suspending the ORG 's decision .","On DATE the ORG rejected the ORG 's objection and confirmed its decision of DATE .","On DATE the ORG made an objection to the decision of ORG applicant 's refugee status to ORG of Kyiv ( \u201c the ORG \u201d ) and requested the suspension of the ORG 's decision .","On DATE the applicant 's lawyer lodged an application for the applicant 's release with ORG under LAW . No decision was taken on this application .","On DATE ORG rejected the request for suspension of the ORG 's decision pending the administrative proceedings .","On DATE ORG rejected the ORG 's objection and confirmed the lawfulness of the ORG 's decision of DATE .","On DATE ORG ( ORG ) overruled the decision of DATE and cancelled the ORG 's decision of DATE .","On DATE ORG decided to initiate the examination of the administrative case in cassation and suspended execution of the decision of DATE .","On DATE ORG Office of Belarus informed their NORP counterpart that the maximum DATE time - limit for the applicant 's pre - trial detention had expired and therefore her detention was replaced by an obligation not to abscond . On this ground the GPE authorities asked the ORG to leave the extradition request without consideration and to release the applicant .","On DATE the Deputy Prosecutor General ordered the applicant 's release on the basis of the above request of ORG . On DATE the applicant was released .","On DATE ORG upheld the decision of ORG .","Article CARDINAL of the Code ( Chapter CARDINAL-A ) provided in so far as relevant :","\u201c Every citizen has the right to apply to court ... with an application , should he consider that a decision , action or inactivity of a public authority , legal person or official during the exercise of their administrative functions has violated his rights or freedoms \u201d","The relevant provisions of the LAW read as follows :","Section CARDINAL","Task of the administrative justice system","\u201c CARDINAL . The task of the administrative justice system is the protection of the rights , freedoms and interests of physical persons , and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...","Any decisions , actions or inactivity of public authorities can be appealed against in administrative courts , except for cases in which the LAW and laws of GPE foresee a different procedure of judicial appeal against such decisions , actions or inactivity ... \u201d","Section CARDINAL","Competence of the administrative courts in deciding administrative cases","\u201c CARDINAL . The competence of the administrative courts shall cover :","...","CARDINAL ) disputes between public authorities ...","CARDINAL ) disputes following an application by a public authority in the situations set forth by the law ...","The competence of the administrative courts shall not cover public law cases :","...","that shall be decided under the criminal justice procedure ... \u201d","Section CARDINAL","Securing an administrative claim","\u201c CARDINAL . The court , upon the request of the claimant or of its own motion , can render a ruling on taking measures for securing an administrative claim ...","The lodging of the administrative claim or the initiation of administrative proceedings in the case does not suspend the challenged decision of the public authority , but the court may , in order to secure the claim , , suspend the decision by a ruling to that effect ...","A ruling on securing an administrative claim can be appealed against . An appeal against the ruling does not stop its enforcement , and does not prevent further examination of the case . \u201d","Final and transitional provisions","\u201c ... CARDINAL . After the entry into force of this Code applications and complaints that derive from administrative law relations ... ( Chapters CARDINAL - CARDINAL of LAW , DATE ) ... shall be considered under the procedure established by this Code ... \u201d","The relevant provisions of LAW provided :","Section CARDINAL","\u201c Supervision over the compliance and application of laws","\u201c Supervision over the compliance and application of laws covers :","CARDINAL ) compliance of acts issued by all bodies , enterprises , institutions , organisations and public officials with the requirements of LAW and laws in force ... \u201d","Section CARDINAL","PERSON of the prosecutor","\u201c ... Having established a violation of the law the prosecutor or his deputy shall be competent :","CARDINAL ) to make objections to acts of ... ministries and other central bodies of the executive power ... \u201d","Section CARDINAL","Objection by the Prosecutor","\u201c An objection to an act which contradicts the law may be submitted by the prosecutor or his or her deputy to the body that issued the act in question or to a higher body ...","An objection by the prosecutor shall have the effect of suspending the act objected to , and shall be subject to compulsory consideration by the relevant body ... within DATE of its receipt . The prosecutor shall be informed of the results of the examination of his \/ her objection within the same time - limit .","Should the objection be rejected ... the prosecutor may apply to a court to have the act declared unlawful . An application to a court may be lodged within DATE of receipt of the notification of rejection of the objection ... The lodging of such an application shall suspend the legal act in question . \u201d","Section CARDINAL of the Act read :","Section CARDINAL","Prohibition of expulsion or forced return of a refugee to the country from which he came and where his life or freedom is endangered","\u201c No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race , religion , ethnicity , nationality , membership of a particular social group or political opinion .","No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe , inhuman or degrading treatment or punishment , or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race , religion , ethnicity , nationality , membership of a particular social group or political opinion .","This Article shall not apply to refugees convicted of a serious crime in GPE . \u201d","The relevant provisions of the Act provide :","Section CARDINAL","\u201c Under the provisions of this PERSON a citizen is entitled to compensation for damage caused by :","( CARDINAL ) unlawful conviction , unlawful indictment , unlawful arrest and detention , unlawful conduct of a search , seizure of property during the investigation and trial , unlawful removal from work ( office ) and other procedural actions that interfere with citizens ' rights ;","( CARDINAL ) unlawful imposition of administrative arrest or correctional labour , unlawful confiscation of property , unlawful imposition of a fine ;","( CARDINAL ) the unlawful conduct of search and seizure activities foreseen by LAW on Search and Seizure Activities \u201d , \u201c on ORG \u201d and other legal acts .","In the cases indicated in part CARDINAL of this Section , the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry , the pre - trial investigative authorities , prosecutors and courts . \u201d","Section CARDINAL","\u201c The right to compensation for damage in the amount of and in accordance with the procedure established by this PERSON shall arise in cases of :","( CARDINAL ) acquittal by a court ;","( CARDINAL - CARDINAL ) the finding in a judgment by a court or other decision by a court ( except a ruling or decision of a court on remittal of the case for further investigation or for retrial ) of the fact of unlawful indictment , unlawful arrest and detention , unlawful conduct of search , seizure of property during the investigation and trial , unlawful removal from work ( office ) and other procedural actions that interfere with citizens ' rights , unlawful conduct of search and seizure activities ;","( CARDINAL ) the termination of a criminal case on the grounds of the absence of proof of the commission of a crime , the absence of corpus delicti , or a lack of evidence of the accused 's participation in the commission of the crime ;","( CARDINAL ) the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph CARDINAL of part CARDINAL of this section ;","( CARDINAL ) the termination of proceedings for an administrative offence .","The right to compensation for damage caused by the search and seizure activities indicated in LAW , conducted prior to the institution of criminal proceedings , arises in the cases set out in paragraph CARDINAL ) of part CARDINAL of section CARDINAL , or in cases in which no decision was taken on instituting criminal proceedings within DATE of the conduct of such activities , as a result of which such activities ... were cancelled . \u201d","Section CARDINAL","\u201c In the cases referred to in section CARDINAL of this PERSON the applicant shall be compensated for ...","( CARDINAL ) non - pecuniary damage . \u201d","Section CARDINAL","\u201c ... Compensation for non - pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry , pre - trial investigative authorities , prosecutors and courts have caused non - pecuniary losses to a citizen , led to disruption of his or her usual relations and required additional efforts for the organisation of his or her life .","Non - pecuniary damage shall be defined as the suffering caused to a citizen due to physical or psychological influence which resulted in a deterioration or deprivation of his or her ability to act in accordance with his or her usual habits and wishes , a deterioration of relations with the people around him or her , and other adverse effects of a non - pecuniary nature . \u201d","Other relevant domestic law and practice is summarised in the judgments PERSON v. GPE ( CARDINAL , \u00a7 \u00a7 DATE and DATE , DATE ) and ORG v. GPE ( CARDINAL\/CARDINAL , \u00a7 DATE , DATE ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1","5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58237","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF I.A. v. FRANCE","importance":2,"conclusion":"Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings","judges":"R. Pekkanen","text":["The applicant , who was born in GPE ( GPE ) in DATE , is at present detained in FAC ( FAC ) . In DATE he travelled to GPE , where he married a young NORP woman , who became his second wife .","On DATE the body of a young woman was retrieved from the harbour mouth at GPE d\u2019Olonne ( PERSON ) . She had been gagged , her teeth had been broken and she had head wounds . The body bore the marks of strangulation , had burns on the chest and thighs and had been weighted down with a weight of QUANTITY . A post - mortem carried out DATE by PERSON and ORG revealed , inter alia , that the cause of death had been asphyxia and that the victim had received a blow to the head before she died .","On DATE a murder inquiry was opened and the investigating judge ordered an expert report on the body . The report , by a Professor PERSON , was filed on DATE .","Having been unable to identify the body , the investigators circulated this information through ORG . On DATE the ORG office in GPE informed them that the applicant \u2019s wife \u2019s parents , who were worried because they had had no recent news of their daughter , had reported her disappearance to the NORP authorities .","It was subsequently discovered that , by letters of CARDINAL DATE , the applicant had reported his wife \u2019s disappearance to the municipal services of GPE ( GPE - et - LOC ) and the PERSON gendarmerie . When he was interviewed on DATE by gendarmes belonging to that brigade he had stated that his wife had left him on DATE to join her brother in GPE , taking with her some money and objects of value that she had stolen from him . On DATE he had also filed a missing person report with the prefectoral authorities .","Tests carried out on the body identified the victim as the applicant \u2019s wife .","NORP The applicant was taken into police custody on DATE . When interviewed by the police conducting the inquiry he first asserted that on DATE he had dropped his wife off at Angers station , where she had caught a train to GPE before travelling to GPE .","He subsequently made , in substance , the following statement : on DATE , after a domestic quarrel , the applicant \u2019s wife had attempted to take her own life by swallowing medicines and then dousing herself with household bleach , after which she had hanged herself with a clothes line ; fearing the reactions of his wife \u2019s family , PERSON had cut down her body , pushed her tongue back into her mouth with a piece of cloth , wrapped the body in a sheet and blanket , tied and weighted it and then placed it in the boot of his car before driving to ORG d\u2019Olonne , where , DATE , after waiting for nightfall , he had thrown it into the sea .","As the investigation proceeded , it revealed the inconsistencies of this version of events . For example , the applicant \u2019s wife had not doused herself with bleach nor had she swallowed medicines ; she had not been hanged but strangled ; and it was before she died that the piece of cloth had been placed in her mouth and the burns found on her body and the injuries to her teeth had been caused .","On DATE the NORP d\u2019Olonne investigating judge charged PERSON with murder and made a provisional order for his LAW imprisonment , committing him to prison for DATE . On DATE the judge made an order for his detention on remand worded as follows :","\u201c \u2026","Whereas the constraints of judicial supervision are inadequate with regard to the functions set out in LAW ;","Whereas the accused \u2019s detention on remand is necessary","to preserve public order from the disturbance caused by the offence ,","to protect the accused ,","and to ensure that the accused remains at the disposal of the judicial authorities ,","in that , as the case concerns a serious crime , and in the light of what the investigations conducted hitherto have revealed , public order has been disturbed , in particular by the circumstances of the discovery of the body ;","in that the accused belongs to a NORP community , so that he must be protected from the risk of revenge attacks by the victim \u2019s family ;","and in that there is a need to ensure that he remains at the disposal of the judicial authorities , as he may abscond to LOC at any time . \u201d","On DATE the investigating judge appointed a Professor Pannier and a Dr Bureau to produce an expert report on the lesions found on the victim \u2019s body ( their report was filed on DATE ) .","On DATE , and again on DATE , the judge interviewed CARDINAL of the applicant \u2019s cousins , who had come to see him of his own accord .","On DATE the investigating judge appointed a Professor PERSON to produce an expert report on vaginal and anal swabs taken from the victim .","On DATE the investigating judge held a reconstruction of the crime , which was attended , among others , by the doctor who had performed the post - mortem , who was appointed expert with the special task of verifying the compatibility of the versions of events given by the accused with the results of the post - mortem ( his report was filed on DATE ) .","On DATE the investigating judge questioned Mr I.A.","From DATE to CARDINAL DATE , acting on instructions received on DATE , ORG ( SRPJ ) monitored the telephone line of a PERSON and a PERSON , CARDINAL of the applicant \u2019s acquaintances .","On DATE the investigating judge appointed Professor PERSON to examine the rag that had been used to gag the applicant \u2019s wife . On DATE he appointed CARDINAL psychologists , a PERSON and a Mr ORG , to produce medico - psychological reports on the applicant and a Dr PERSON to produce a psychiatric report ( the reports of the first CARDINAL experts mentioned were filed on DATE , that of the third expert on DATE ) .","On DATE , acting on instructions received on DATE , a detective from ORG SRPJ interviewed the applicant \u2019s first wife .","The investigating judge took evidence from Mr GPE \u2019s cousin as a civil party on DATE . On CARDINAL DATE he took evidence from the victim \u2019s brother and sister - in - law \u2013 they had previously been interviewed on DATE by ORG , acting on instructions of DATE ; on DATE and DATE he confronted them with the applicant .","On DATE , acting on instructions of CARDINAL March , ORG took a sample of hair from the body .","On DATE , acting on instructions of DATE , the ORG took statements from PERSON and PERSON , and from a woman with whom PERSON had been carrying on a sexual relationship before his arrest . The latter declared in particular that the applicant had informed her of his intention of leaving GPE for GPE as soon as his house was sold .","On DATE the investigating judge visited the scene of the crime .","On DATE he again interviewed the applicant \u2019s cousin .","On DATE he took a statement from the applicant \u2019s ex - wife .","On DATE the investigating judge confronted the applicant \u2019s cousin with PERSON and PERSON , then interviewed PERSON , asking him in particular whether he wanted any special expert examinations of the victim \u2019s body to be made . On the basis of instructions given the same day , PERSON and PERSON were again interviewed by ORG .","On CARDINAL May the investigating judge held a confrontation with the victim \u2019s brother and sister - in - law .","On CARDINAL DATE the judge refused an application for release lodged by PERSON in an order worded as follows :","\u201c \u2026","Whereas the accused \u2019s detention on remand is necessary","to preserve public order from the disturbance caused by the offence ,","to protect the accused ,","and to ensure that the accused remains at the disposal of the judicial authorities ,","in that the offence gravely disturbed public order , being a serious crime ; in that further inquiries are necessary ; and in that it is necessary to ensure that the accused remains at the disposal of the judicial authorities on account of the fact that , being a NORP national , he is likely to flee the jurisdiction , a step which it seems he considered taking shortly before his arrest . \u201d","On appeal by the applicant , ORG of ORG upheld the above order in a judgment of DATE , on the following grounds :","\u201c Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in GPE , it is to be feared that he might seek to evade justice by absconding to that country . It is obviously necessary to continue his detention to prevent him from doing so . \u201d","On DATE the investigating judge held a confrontation between the applicant and the CARDINAL people he had interviewed on DATE","On the basis of instructions given on DATE , a witness was interviewed by ORG .","On DATE the investigating judge confronted PERSON cousin with his ex - wife .","On DATE the investigating judge refused an application for release lodged by Mr GPE on DATE in an order worded as follows :","\u201c Whereas the accused \u2019s detention on remand is the only way","to preserve the evidence ,","and to prevent pressure being brought to bear on witnesses or the victim ,","in that the accused has shown particular duplicity in the organisation of his lies ; in that he has colluded with third parties ( ex - wife and friend ) ; and in that new evidence has turned up during the investigation ( discovery of allegedly stolen jewellery ) ;","Whereas the accused \u2019s detention on remand is necessary","to preserve public order from the disturbance caused by the offence ,","to protect the accused ,","and to ensure that he remains at the disposal of the judicial authorities ,","in that public order has been disturbed in the extreme on account of the international , family implications to which the accused himself refers in his application ; and in that the accused himself admits to living in fear \u2018 of our frequently barbaric and unjust ORG , his continued detention is the only way to ensure his protection and to avoid all risk of his absconding in the event of his release . \u201d","On DATE the accused was served with a copy of the expert report of Professor PERSON and Dr Bureau and was informed that he had DATE to submit observations or request an additional expert report or second opinion ; he was then interviewed by the investigating judge .","He was again questioned by the investigating judge on DATE .","By an order of CARDINAL DATE the investigating judge appointed an expert to carry out \u201c an inquiry into the accused \u2019s personality , his financial circumstances , and his family and social background , and to provide any kind of information about his pattern of behaviour \u201d . The report was filed on DATE .","By an order of CARDINAL DATE , which reproduced the wording of the order of DATE , the investigating judge refused an application for release lodged by the applicant .","On DATE the investigating judge interviewed the applicant \u2019s cousin .","On DATE the judge extended for DATE the applicant \u2019s detention on remand , by means of the following order :","\u201c Whereas the accused \u2019s detention on remand is the only way to prevent collusion between him and his accomplices ,","in that the circumstances of the victim \u2019s death and the barbaric acts which she suffered remain obscure ; in that it is necessary to try to ascertain the accused \u2019s motives , in case this was not just a simple private problem but formed part of a much more general context with NORP links ; and in that it is therefore possible that the accused did not act alone ;","Whereas the accused \u2019s detention on remand is necessary","to preserve public order from the disturbance caused by the offence ,","to protect the accused ,","and to ensure that he remains at the disposal of the judicial authorities ,","in that the case file shows that there is a very serious risk of reprisals ; in that the very special circumstances of the victim \u2019s death ( barbarity ) have been partly responsible for a lasting disturbance of public opinion ; and in that it is necessary , in view of the penalty to which the accused is liable , and his foreign origin , to ensure that he remains at the disposal of the judicial authorities . \u201d","On DATE the investigating judge visited the scene of the crime .","On DATE the investigating judge refused another application for release from the applicant , by an order drafted in the same terms as the order of CARDINAL DATE ( the only major difference being that it omitted to mention that detention was necessary for the protection of the accused ) . He also refused , on DATE , an application submitted on DATE , on the ground that detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence , to protect the accused and to ensure that he remained at the disposal of the judicial authorities .","On DATE the investigating judge asked a Dr Lavault to produce an additional expert report to verify whether the burns found on the victim \u2019s body had been caused before death .","On DATE he served PERSON with the conclusions of the expert report on the rag that had been used to gag the victim , informed him that he had DATE to submit observations or request an additional expert report or second opinion and then interviewed him .","By an order of DATE the investigating judge refused a new application for release lodged by the applicant on the ground that detention was necessary to preserve public order from the disturbance caused by the offence , to protect the accused and to ensure that he remained at the disposal of the judicial authorities . More specifically , the order stated :","\u201c Whereas the offence seriously disturbed public order , since it involved the death of a young woman in particularly barbaric circumstances ; and whereas this disturbance , which extends beyond NORP territory , both the victim and the offender being of NORP origin , has not ceased to DATE ;","Whereas it is necessary to keep at the disposal of the judicial authorities a person whose life would be endangered by his release , given the indignation and distress that such a measure could not fail to provoke among the victim \u2019s relatives , as they would not be able to understand or accept it , although they have hitherto placed their trust in NORP justice ;","And whereas , lastly , the investigation will in all probability be concluded when the inquiries currently in progress have been completed , and the transmission of the file to the public prosecutor \u2019s office can be expected to take place by DATE . \u201d","On appeal by PERSON , ORG of ORG upheld this order in a judgment of DATE , on the following grounds :","\u201c Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in GPE , it is to be feared that he might seek to evade justice by absconding to that country . It is obviously necessary to continue his detention to prevent him from doing so .","It is also necessary for the purposes of the inquiries currently in progress , in particular to avoid all risk of collusion with witnesses and to prevent pressure being brought to bear on them , as [ GPE ] \u2019s conduct gives reason to fear . \u201d","On DATE the investigating judge appointed PERSON to conduct a medico - psychological and psychiatric examination of the applicant ( her report was filed on DATE ) .","NORP In TIME DATE a burglary was carried out at the applicant \u2019s home , at which official police seals had been placed . On DATE the vehicle used to move the body , which had been stolen during the burglary , was found in the River Maine at Angers .","On CARDINAL DATE the investigating judge refused an application for release submitted by the applicant on DATE , by an order worded as follows :","\u201c Whereas the accused \u2019s detention on remand is necessary","to preserve public order from the disturbance caused by the offence ,","and to ensure that the accused remains at the disposal of the judicial authorities ,","in that there is strong evidence that [ GPE ] is guilty of murder ; and in that it is necessary to ensure that he remains at the disposal of the judicial authorities and to forestall any risk of pressure being brought to bear on witnesses . \u201d","On DATE the investigating judge arranged a confrontation between the applicant , his cousin and one of the experts previously appointed ( Dr GPE ) ; they discussed the question whether the lesions found on the victim \u2019s body had been caused before death .","On DATE the investigating judge refused an application for release lodged by Mr GPE on DATE , on the ground that his detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence and to ensure that the accused would remain at the disposal of the judicial authorities .","He did so again on DATE and DATE by means of CARDINAL orders worded as follows :","\u201c Whereas there is strong evidence that [ GPE ] is guilty of murder ;","Whereas from the time of his wife \u2019s death until his arrest he showed particular duplicity , attempting to set his family against the young woman \u2019s family by making particularly serious false allegations ;","Whereas it is to be feared that [ GPE ] will abscond to a country where he has family ties ;","Whereas it is necessary to ensure that he remains at the disposal of the judicial authorities ;","Whereas his detention on remand is also necessary in order to discover the truth , since [ he ] has continually employed stratagems designed to enable him to evade his responsibilities . \u201d","On DATE the investigating judge refused another application for release , dated DATE , on the ground that the applicant \u2019s detention was necessary to preserve public order from the disturbance caused by the offence , to protect the accused and to ensure that he remained at the disposal of the judicial authorities .","On DATE he refused a further application from the applicant , by means of an order with exactly the same wording as those of CARDINAL and DATE .","On CARDINAL and DATE , CARDINAL and DATE , DATE and DATE and CARDINAL DATE he refused applications lodged respectively on CARDINAL , DATE and DATE , DATE , DATE and DATE and DATE . These orders generally stated that ORG detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence , to protect the accused and to ensure that he remained at the disposal of the judicial authorities . They also pointed out that there was \u201c strong evidence \u201d that ORG was \u201c guilty of murder \u201d , that \u201c from the time of his wife \u2019s death until his arrest \u201d he had shown \u201c particular duplicity \u201d , that it was \u201c to be feared that he [ would ] abscond to a country where he [ had ] family ties \u201d and that it was therefore necessary \u201c to ensure that he remained at the disposal of the judicial authorities so as not to create any risk of the inquiries needed to reveal the truth being impeded \u201d .","In a judgment of DATE ORG of ORG upheld the order of DATE , on the grounds that \u201c regard being had to the penalty for the offence concerned , there [ was ] a strong risk that [ GPE ] would abscond to his country of origin before he could be brought to trial \u201d and that \u201c his continued detention [ was ] the only way to guard against that risk \u201d .","On DATE a Mr A. , CARDINAL of the CARDINAL people who had carried out the burglary of DATE , was interviewed by ORG . He stated that the purpose of the burglary had been to remove evidence and take away Mr GPE \u2019s vehicle .","On DATE , when he was questioned by the investigating judge about his relations with the people who had carried out the burglary at his home , the applicant denied any involvement .","On DATE the judge extended ORG detention on remand for DATE by an order which stated : \u201c The accused must be kept at the disposal of the judicial authorities , since the serious nature of the offence and the circumstances of the victim \u2019s death have very gravely disturbed public order both in GPE and in GPE . \u201d","A summary report drawn up by ORG and completed on DATE , concerning in particular the inquiries conducted after the burglary of CARDINAL May , was communicated to the investigating judge .","On DATE the investigating judge interviewed PERSON , who confirmed his statement of DATE .","By CARDINAL orders of CARDINAL and DATE , which cited the same grounds as those of CARDINAL and DATE , CARDINAL and DATE , DATE and DATE and CARDINAL DATE , the investigating judge refused applications for release lodged by the applicant on DATE and DATE .","DATE . On DATE and DATE and CARDINAL DATE the investigating judge refused applications for release lodged on CARDINAL , DATE and DATE , by means of orders worded as follows :","\u201c Whereas the accused \u2019s detention on remand is necessary","to preserve public order from the disturbance caused by the offence ,","to protect the accused ,","and to ensure that the accused remains at the disposal of the judicial authorities ,","in that there is strong evidence that [ GPE ] is guilty of murder ; in that from the time of his wife \u2019s death until his arrest he showed particular duplicity ; in that it is to be feared that he will abscond to a country where he has family ties ; and in that it is therefore necessary to ensure that he remains at the disposal of the judicial authorities . \u201d","The orders of DATE and DATE stated in addition : \u201c The accused \u2019s detention on remand is the only way to prevent pressure being brought to bear on witnesses . \u201d The second of these did not refer to the need to \u201c protect the accused \u201d , but added that detention on remand was \u201c the only way to preserve the evidence \u201d .","On DATE the investigating judge questioned Mr I.A.","On DATE the Angers SRPJ interviewed a Mr B. , CARDINAL of the CARDINAL people who had carried out the burglary of CARDINAL DATE . Subsequently , the police lost trace of him .","By orders of CARDINAL and CARDINAL DATE the investigating judge refused applications for release lodged on CARDINAL and DATE . These orders stated that the applicant \u2019s detention on remand was the only way \u201c to preserve evidence [ and ] prevent collusion between the accused and his accomplices \u201d ( order of DATE ) and \u201c to prevent pressure being brought to bear on witnesses \u201d ( order of CARDINAL DATE ) . For the rest , they repeated the grounds cited in paragraph DATE above .","By CARDINAL orders of CARDINAL , DATE and DATE , the investigating judge refused applications for release lodged on DATE and CARDINAL and DATE . The first and third of these orders stated that the applicant \u2019s detention on remand was \u201c the only way \u201d to \u201c preserve evidence \u201d and to \u201c prevent pressure being brought to bear on witnesses \u201d ; the second mentioned only the second of these grounds . For the rest , they repeated the grounds cited in paragraph DATE above , apart from the fact that the first CARDINAL made no mention of the necessity of detention for the protection of the accused .","In the meantime , on DATE , an investigating judge from the ORG tribunal de grande instance had been appointed to investigate the case , since the investigation conducted up to that point had shown that the crime had been committed within the territorial jurisdiction of that court . On DATE the new investigating judge asked for the file to be passed on to him . On DATE the investigating judge who had handled the case until then relinquished his charge to the new judge .","On DATE the new investigating judge questioned PERSON , who said that he wished to stand by his previous statements .","On DATE and DATE the judge refused applications for release lodged by the applicant .","The first of these orders was worded as follows :","\u201c Whereas the detention on remand of the person under investigation is the only way","to preserve evidence ,","and to prevent pressure being brought to bear on witnesses ,","in that the person under investigation stands accused of murdering his wife , which he denies ; in that there is , however , evidence against him that must be examined ; in that , moreover , it appears \u2026 from the file that he incited others to burgle his home with a view to the destruction of documents that could have been used as evidence ; in that his release or placement under judicial supervision would not be , at the present stage of the investigation , conducive to discovery of the truth ;","Whereas the detention on remand of the person under investigation is necessary","to preserve public order from the disturbance caused by the offence ,","and to ensure that the person under investigation remains at the disposal of the judicial authorities ,","in that there is strong evidence that [ GPE ] is guilty of murder , an offence which , by its nature , causes a manifest and lasting disturbance of public order ; in that the person under investigation has shown duplicity ; and in that , having ties with a foreign country , it is to be feared that he would abscond if released . \u201d","The second order read as follows :","\u201c Whereas the detention on remand of the person under investigation is the only way","to preserve evidence ,","and to prevent collusion between the person under investigation and his accomplices ,","in that further inquiries are needed to uncover the full truth ; in particular , light needs to be shed on the circumstances in which the burglary of the home of the person concerned \u2013 the scene of the crime \u2013 was organised and carried out ;","Whereas the detention on remand of the person under investigation is necessary","to preserve public order from the disturbance caused by the offence ,","and to prevent any repetition of the offence ,","in that , as the case file stands , there is strong evidence that the person concerned killed his wife ; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order ; in that the conduct of the person concerned during the investigation and the ties he has with a foreign country give reason to fear that he might seek to evade justice and his responsibilities ; and in that the person concerned is already due to be examined on CARDINAL DATE next . \u201d","On DATE the applicant was examined by the investigating judge .","On DATE and CARDINAL and DATE the investigating judge refused applications for release of DATE and CARDINAL and DATE by CARDINAL orders drafted in exactly the same terms as the order of DATE ( apart from the reference to the examination of CARDINAL DATE ) .","On DATE the investigating judge instructed the director of ORG to find and interview a Mr F. and PERSON , CARDINAL of the CARDINAL people who had carried out the burglary of CARDINAL DATE . Mr F. was traced on CARDINAL DATE : he was in prison under the assumed identity of his own brother .","On DATE , acting on instructions of DATE , the ORG gendarmerie removed the official police seals from Mr GPE \u2019s house .","On DATE the investigating judge extended the applicant \u2019s detention on remand for DATE , by an order which read :","\u201c Whereas the detention on remand of the person under investigation is the only way","to preserve evidence ,","and to prevent collusion between the person under investigation and his accomplices ,","in that further inquiries are needed to uncover the full truth ; in particular , light needs to be shed on the circumstances in which the burglary of the home of the person concerned \u2013 the scene of the crime \u2013 was organised and carried out ; and in that the police have been given instructions to try to apprehend the last of the men involved in the burglary ;","Whereas the detention on remand of the person under investigation is necessary","to ensure that the person under investigation remains at the disposal of the judicial authorities ,","and to preserve public order ,","in that , as the case file stands , and despite the denials of [ GPE ] , there is strong and consistent evidence that he killed his wife in particularly odious circumstances ; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order ; in that the conduct of the person under investigation during both the police inquiries and the judicial investigation and the ties he has kept with his country of origin give reason to fear that he might seek to evade justice and his criminal responsibility . \u201d","On DATE the investigating judge refused an application for release submitted on DATE by an order written in the same terms as the order of DATE .","On DATE Mr GPE again applied for release ; this was refused by an order of DATE , on the same grounds as those set out in the orders of CARDINAL DATE and DATE .","The applicant appealed on DATE , relying in particular on LAW ; he complained of the length of the proceedings and argued that he could not be held responsible for this , since he had not requested any step likely to prolong the investigation , nor had he used any procedural remedies capable of suspending its progress . In response , ORG of ORG upheld the order in a judgment of DATE , holding :","\u201c \u2026","Although the killing of a woman by her husband is not generally a complex matter , it should be noted in the present case that this killing has been denied and presented as a suicide by hanging , just as the acts of torture and barbarity suffered by the victim during DATE which preceded her death have been denied , but above all that the motive for this crime , without knowing which it is not possible to assess the perpetrator \u2019s responsibility , has been carefully concealed .","The silence constantly maintained by the person under investigation , the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home , in which CARDINAL of his fellow prisoners participated , which was designed to destroy documents and the vehicle used to move the body , and which could have been carried out at the behest of [ GPE ] , obliged the investigating judge to order many expert opinions and to conduct inquiries which can not be regarded as accessory in order to uncover the truth . These have been the cause of the protractedness of the proceedings and the detention of which [ GPE ] complains .","The risk that [ GPE ] might bring pressure to bear on witnesses of the offences committed during DATE which preceded the victim \u2019s death , in concert with the accomplices he may well have had , and the risk that he might abscond to GPE or another country where he could be assisted by members of the large community of NORP emigrants make it essential for his detention to continue , since judicial supervision in this case is not a measure which can perform the functions set out in LAW . \u201d","The applicant appealed on points of law against the above decision , relying on LAW in particular . He submitted that his refusal to admit the offence which he stood accused of , and which he denied having committed , could not amount to inertia on his part ; that ORG had not explained how the need to conduct inquiries into the burglary carried out at his home prevented the investigation from proceeding in connection with the events which had led to his detention on remand ; and that it had not given detailed reasons for its decision .","In a judgment of CARDINAL DATE , ORG dismissed this appeal .","In the meantime , on DATE , acting pursuant to the instructions of CARDINAL DATE and further instructions given on DATE , ORG had interviewed PERSON , who had confirmed PERSON statement to the effect that the burglary at the applicant \u2019s home had been carried out at his behest with the aim of ensuring that certain documents disappeared .","On DATE the investigating judge had questioned Mr GPE about the circumstances of the burglary ; he had denied being behind it .","On DATE the judge had instructed the ORG gendarmerie by warrant to find out PERSON address so that he could be served with a summons to appear before him at his chambers . The warrant had been returned on DATE and the summons had been served on DATE","On DATE the investigating judge confronted the applicant with PERSON and Mr F. All CARDINAL confirmed their previous statements about the burglary .","On DATE the investigating judge informed PERSON that his case file was to be communicated to the public prosecutor in CARDINAL days\u2019 time , after which he would no longer be able to request additional investigative measures .","On DATE the applicant requested the investigating judge to order such measures ; he asked for an international letter of request to be issued asking for inquiries to be conducted in GPE about the victim \u2019s personality and an assessment made of whether she had suicidal tendencies . He also asked for CARDINAL expert opinions to be ordered to describe the system of marriage and divorce in GPE and to explain the reasons why ethanol had been found in the victim \u2019s body , the different nature of the strangulation marks found , what happened to the tongues of people who had been hanged or strangled and whether the position of the arms as he had described it was what would have been expected .","By an order of CARDINAL DATE the investigating judge refused these requests after noting their \u201c particularly late \u201d submission and the lack of justification for them .","On DATE Mr GPE had also applied to ORG asking it to declare the proceedings null and void .","On DATE the investigating judge refused an application for release by an order worded as follows :","\u201c \u2026","Whereas the detention on remand of the person under investigation is the only way to prevent pressure being brought to bear on the witnesses , the victim ,","in that , by his attitude throughout the investigation , the person under investigation has shown how determined he is to impede the discovery of the truth and in that it is to be feared that he might bring pressure to bear on witnesses of the offences committed during DATE which preceded the victim \u2019s death ;","Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence ,","in that the person concerned is accused of a killing carried out in odious circumstances , which have disturbed public order in a particularly lasting manner ; and in that [ GPE ] \u2019s conduct and ties outside GPE give reason to fear that he might seek to evade justice . \u201d","DATE . On DATE the investigating judge transferred the case file to the public prosecutor \u2019s office .","On CARDINAL DATE the investigating judge refused an application for release of DATE , by an order written in exactly the same terms as the order of DATE .","On DATE , in view of the application of DATE in which ORG had asked ORG of ORG to declare the proceedings null and void , the investigating judge stayed the investigation pending ORG decision and ordered the case file to be transmitted to its president .","On DATE the investigating judge refused an application for release by an order written in the same terms as those of DATE and CARDINAL DATE .","He refused further applications on CARDINAL and DATE , CARDINAL and CARDINAL DATE , DATE and DATE and CARDINAL and DATE . These orders reproduced the reasons set out in those of CARDINAL DATE and DATE and CARDINAL DATE and in addition expressly mentioned that detention on remand was \u201c necessary to ensure that the person under investigation remain[ed ] at the disposal of the judicial authorities \u201d . The last CARDINAL orders aded that , by his attitude \u201c during both the police inquiries and the investigation \u201d , the applicant had shown his determination to \u201c mislead the investigators and witnesses about the facts \u201d , that the risk of pressure being brought to bear also applied to witnesses of the events that had followed the victim \u2019s death , that the disturbance to public order caused by the offence was \u201c exceptional \u201d and that Mr GPE \u2019s conduct and ties outside GPE gave reason to fear that he might seek to evade justice \u201c as he [ had ] tried to evade his criminal responsibility \u201d .","By a judgment of CARDINAL DATE ORG of ORG noted that the proceedings were lawful and remitted the case to the investigating judge for further investigation . On DATE the applicant appealed on points of law .","On DATE , by an order identical to those of CARDINAL DATE and DATE and DATE , the investigating judge refused an application for release submitted on DATE .","NORP The prosecution \u2019s final submissions , calling for the file to be transmitted to ORG , were filed on DATE and the transmission order was made on DATE .","On DATE and CARDINAL and DATE , by orders which reproduced the reasons set out in those of CARDINAL DATE and CARDINAL , DATE and DATE November , the investigating judge refused applications for release submitted by the applicant .","On DATE the applicant appealed to ORG of ORG against the order of DATE . He complained of the length of his detention and the length of the proceedings .","By a judgment of DATE ORG dismissed the appeal , on the following grounds :","\u201c \u2026","[ ORG lawyer can not maintain that the investigation \u201c has still not been closed \u201d when the order for the file to be transmitted to ORG was made on DATE , nor can he maintain that ORG decision of CARDINAL DATE dismissing his client \u2019s appeal on points of law against the judgment of DATE upholding an order refusing an application for release did not influence the speediness of the investigation , when he waited until DATE before asking the investigating judge to take further steps and at the same time requested ORG to rule that the proceedings were null and void , since those applications , which do not appear to be really consistent with each other , necessarily caused some delay .","\u2026","The killing of a woman by her husband is not generally a complex matter , but it should be observed in the present case , firstly , that the fact that the person under investigation has maintained a constant silence about the real circumstances of his wife \u2019s death and the acts of torture and barbarity she suffered , the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home , in which CARDINAL of his fellow prisoners participated , which was designed to destroy documents and the vehicle used to move the body , and which seems to have been carried out at the behest of [ GPE ] , obliged the investigating judge to order many expert opinions and to conduct inquiries which can not be regarded as accessory in order to uncover the truth .","Secondly , the applications and appeals lodged by [ GPE ] have necessarily prolonged the proceedings and the detention whose length he complains of .","As the preparatory investigation is now closed , [ GPE ] \u2019s detention on remand is necessary with a view to the definitive investigation of the facts to be conducted at his trial ; to prevent him bringing pressure to bear on the witnesses of the offences committed during DATE which preceded the victim \u2019s death ; to prevent him absconding to GPE or some other country and to guarantee that he appears in court to stand trial .","As judicial supervision would not be adequate in the present case to perform the functions set out in LAW , the impugned order is upheld . \u201d","DATE . On DATE the applicant again submitted an application for release to ORG of ORG , which dismissed it in a judgment of DATE , on the following grounds :","\u201c \u2026","Although the detention on remand he has undergone is abnormally long for a case in which a woman has been killed by her husband , as this court found in its previous judgment , the length of his detention is not attributable to any dysfunction of the judicial system but solely to the conduct of the person under investigation , who has maintained a constant silence about the real circumstances of his wife \u2019s death and the acts of torture and barbarity she suffered , to the inertia he has shown in order to prevent the investigation moving forward and to the need to shed light on the burglary committed at his home , these inquiries and expert reports having been essential to make progress in discovering the truth in view of the attitude shown by the person under investigation .","Lastly , the applications and appeals lodged by [ GPE ] have necessarily prolonged the proceedings and the detention whose length he complains of .","Regard being had to these circumstances , and to the judgment in the case of PERSON v. GPE delivered [ by ORG ] on DATE , the period of time already spent in detention on remand has not exceeded the \u201c reasonable time \u201d prescribed by LAW of LAW ] .","As ORG is due to rule on DATE on the charges to be brought against [ GPE ] , his detention on remand is necessary to prevent him bringing pressure to bear on the witnesses of the offences committed during DATE which preceded the victim \u2019s death , to prevent him absconding to GPE or some other country and to guarantee that he appears in court to stand trial .","As judicial supervision would not be adequate in the present case to perform the functions set out in LAW , the impugned order is upheld . \u201d","By a judgment of DATE , ORG committed the applicant for trial in the GPE - et - ORG for murder and made an order for his delivery into custody . On DATE the applicant appealed to ORG against this judgment .","On DATE the President of ORG ordered the continuation of the proceedings .","On DATE ORG dismissed the applicant \u2019s appeals against ORG judgments of CARDINAL DATE ( see paragraph DATE above ) and DATE .","At the criminal hearing on DATE ORG adjourned the case , in response to an application from the applicant , who objected to being tried in the absence of CARDINAL witnesses ( the victim \u2019s sister - in - law and PERSON , CARDINAL of the CARDINAL people who had carried out the burglary of DATE ) and an expert who had all been duly summoned .","At the end of the hearing the applicant \u2019s lawyer submitted an application for his release , which the court dismissed after retiring to deliberate .","By a judgment of DATE ORG sentenced the applicant to life imprisonment , with ineligibility for parole during DATE .","The applicant appealed on points of law against the judgment of DATE .","By a judgment of DATE ORG quashed the judgment of the GPE - et - ORG and declared it null and void , on the ground that ORG had misapplied LAW when it ruled on an application by the applicant \u2019s counsel for a note to be entered in the record by omitting to allow the latter or his client to address the court last . It remitted the case to LOC .","On DATE the applicant lodged an application for release with ORG of ORG . In a letter of CARDINAL DATE , his lawyer informed the President of ORG that his client wished to withdraw the application . This was noted by ORG in a judgment of DATE .","On CARDINAL DATE Mr GPE lodged a further application for release , which ORG of ORG dismissed in a judgment of CARDINAL DATE , on the following grounds :","\u201c [ GPE ] is liable to the penalty for a serious criminal offence .","The evidence against him is particularly weighty , particularly in the light of what was revealed by examination of the victim \u2019s body , which he admits getting rid of .","The results contradicted the successive versions of events he gave during the investigation , which he took care to adapt and adjust to each new finding made as the inquiries progressed .","Although his detention on remand has indeed lasted for a long time , its length is not attributable to any dysfunction of the judicial system , but is mainly due to the attitude shown by the accused , who , through his silence , his contradictions and his numerous applications ( notably for relinquishment of jurisdiction by the investigating judge ) , has managed to impede the progress of the proceedings considerably and delay their outcome .","In addition to the difficulties encountered in the course of the investigation , there was the need to find time for hearings in ORG , and a new appeal , which was determined DATE after it was lodged .","In view of the particular , and indeed exceptional , circumstances , [ GPE ] \u2019s detention on remand has not exceeded the reasonable time prescribed by LAW .","Moreover , the defendant has not provided sufficient guarantees that he will appear in court to stand trial .","[ GPE ] is of NORP origin .","He asserts that he wishes to live in GPE while waiting to appear in LOC . However , the court has reason to doubt that , particularly in the light of the severity of the penalty to which he is liable .","It is to be feared that he will seek to evade justice .","The risk of the defendant disappearing without trace seems considerable .","In the light of all the above considerations , it must be ensured that [ GPE ] remains at the disposal of the judicial authorities .","These particular circumstances , deduced from the evidence in the case , establish that [ GPE ] \u2019s continued detention on remand remains justified with reference to the criteria exhaustively listed in LAW","Article CARDINAL of the Code of Criminal Procedure provides :","\u201c In cases involving serious crimes ( mati\u00e8re criminelle ) and lesser criminal offences ( mati\u00e8re correctionnelle ) , if the sentence to which the person under investigation is liable is not DATE imprisonment in the case of offences detected immediately after being committed , or DATE imprisonment in other cases , and if the constraints of judicial supervision are inadequate with regard to the functions set out in Article CARDINAL , the detention on remand may be ordered [ or ( Law no . CARDINAL of DATE ) \u2018 extended\u2019 ] :","Where the detention on remand of the person under investigation is the sole means of preserving evidence or of preventing either pressure being brought to bear on witnesses or victims or collusion between persons under investigation and accomplices ;","[ CARDINAL . ( Law no . CARDINAL of DATE ) Where this detention is necessary to protect the person concerned , to put an end to the offence or prevent its repetition , to ensure that the person concerned remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence ; ]","... \u201d","Detention on remand is imposed by means of an order which must set out the legal and factual grounds for the decision by reference to the provisions of Article CARDINAL only . This order is notified orally to the accused , who receives a full copy of it upon signing the case file to acknowledge receipt ( Article CARDINAL , first paragraph ) .","The investigating judge gives his decision in chambers , after an adversarial hearing in the course of which he hears the submissions of the public prosecutor , then the observations of the person under investigation and , if appropriate , of his counsel ( Article CARDINAL , fourth paragraph ) .","A person under investigation on suspicion of having committed a serious crime may not in principle be detained for DATE .","However , the investigating judge may , at the end of that period , extend detention for a period of not DATE , by a decision given in accordance with the provisions of the first and fourth paragraphs of Article CARDINAL ; that decision may be renewed in accordance with the same procedure until such time as the investigating judge makes the order terminating the investigation ( Article CARDINAL - CARDINAL ) .","An application for release may be submitted to the investigating judge at any time by the person detained or his lawyer subject to the obligations set out in LAW ; the person concerned is required to give an undertaking to attend immediately in person when a new step is taken in the proceedings if directed to do so and to keep the investigating judge informed of all his movements .","The investigating judge immediately communicates the file to the public prosecutor so that the latter can make his submissions ( Law no . CARDINAL of DATE abolished the provision which required the investigating judge to inform civil parties that an application for release had been made ) . The investigating judge must in principle give his decision within DATE of communicating the file by an order setting out the legal and factual grounds for the decision with reference to the provisions of Article CARDINAL .","Where the above time - limit is not respected , the person detained may apply directly to the indictment division , which must reach a decision within DATE , failing which the person detained is automatically released , unless verifications concerning his application have been ordered .","Where release is granted , it may be accompanied by judicial supervision measures ( Article CARDINAL ) .","Release may also be requested \u201c in any event \u201d by any person under investigation or defendant and at any time in the proceedings .","Where application is made to a court of trial or appeal , the latter has the power to grant conditional release ; before committal for trial in the assize court , and in between assize court sessions , that power belongs to the indictment division .","In the event of an appeal on points of law , and until ORG has given judgment , the decision on the application for release is given by the court which last tried the case on the merits . If the appeal on points of law has been lodged against an assize court judgment , the decision regarding detention is given by the indictment division ( Article CARDINAL - CARDINAL ) .","The court which receives the application must in principle give judgment within DATE , if it is a court of trial , or DATE , if it is a court of appeal . Failing that , detention on remand is terminated and the defendant , if not detained for another reason , is automatically released ( Article CARDINAL - CARDINAL ) .","An appeal against an order refusing release lies to the indictment division . It may be lodged by the person under investigation ( LAW ) or by ORG ( Article CARDINAL ) . Such an appeal does not have suspensive effect .","In principle the indictment division must rule within DATE of the appeal , failing which the person concerned is automatically released ( LAW ) .","When dealing with an appeal on points of law against a judgment of the indictment division concerning detention on remand , ORG must rule within DATE of receiving the case file , failing which the person concerned is automatically released ( LAW ) ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95093","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF ANTIPENKOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lived until his arrest in the town of LOC in LOC . He is serving his sentence in the correctional colony in the village of GPE in LOC .","On DATE the police arrested the applicant and brought him to the LOC police station .","On DATE a police officer , ORG , who had taken part in the applicant 's arrest , drew up a report , informing the chief of the LOC police station that a man had approached him and his fellow officers in a street , complaining that he had been beaten up and robbed . The applicant had passed by and the victim had identified him as the robber . The applicant had tried to escape but he had been apprehended and taken to the police station . The report did not indicate whether force or special means had been used during the arrest .","The applicant lodged a complaint with ORG office , seeking institution of criminal proceedings against the arresting police officers . In particular , he alleged that the police officers had unlawfully applied force against him during the arrest .","On DATE a deputy ORG issued a decision , finding that there was no case to answer and dismissing the applicant 's complaint . The decision stated that on DATE , after the applicant had committed the robbery , police officers had stopped him in a street and had ordered him to get into a police car . The applicant had refused , had punched police officer PERSON . in the face and had attempted to escape , threatening the officers with a knife . Police officer PERSON had hit the applicant with a rubber truncheon on the arm , forcing him to drop the knife . Subsequently , the police officers had forced the applicant into the car . The deputy prosecutor concluded that there had been no indication of a criminal offence in the police officers ' actions . The applicant was served with a copy of that decision .","According to the applicant , after being taken to the LOC police station on DATE , he had been placed in a cell . An assistant police officer on duty , P. , had approached the applicant and hit him with a rubber truncheon approximately CARDINAL times on the left side of the body and once in the face . An officer on duty , S. , had entered the cell and had started beating the applicant as well . The beatings had continued for TIME . The applicant had subsequently been placed in the detention facility of ORG .","The Government , relying on the information provided by ORG office , submitted that on DATE the applicant had been taken in a state of alcoholic intoxication to the duty unit of the LOC police station . After being placed in a cell for administrative detainees , he had started kicking the door , using obscene language and ignoring the police officers ' orders to stop the unlawful behaviour . Police officer PERSON had entered the cell and hit the applicant a number of times in the back with a rubber truncheon . After officer PERSON had left , the applicant had stripped to the waist and started pushing the door . The police officers , using force , had transferred him to another cell . While he was being escorted to the new cell and was passing the desk of an officer on duty , the applicant had started spitting on the desk communication board . Officer PERSON had thus been forced to hit the applicant with a rubber truncheon . In the new cell the applicant had continued kicking the door . The police officers had had no choice but to handcuff the applicant to a metal bar , so he could not reach the door . Shortly after , when the applicant had calmed down , the handcuffs had been removed . No force had been applied against the applicant after that incident .","On DATE , on admission to the detention facility of ORG , an officer on duty examined the applicant and drew up a report , recording the following injuries on his body : bruises on the chest , numerous injuries on the back , bruises on the left hip and buttock , injuries on the forehead , face and left cheek . As shown by the documents presented by the parties , on DATE an emergency doctor was called to attend to the applicant in response to his complaints about severe pain in the jaw and chest . The doctor examined the applicant , noted his injuries and , suspecting that he could have had a rib fracture , recommended an examination by a traumatologist .","DATE the applicant complained to the head of the detention facility about the beatings in the police station and sought the institution of criminal proceedings against the police officers .","On DATE the applicant was examined in the medical division of ORG and a report was drawn up . According to the report , he had a hypodermic injury on the left side of the chest . The injury measured QUANTITY in length and QUANTITY in width and resulted from a blow by a rubber truncheon .","DATE the applicant , being diagnosed with encephalomyelopolyneurotis , was admitted to the hospital of ORG where he stayed until his transfer , on DATE , to PERSON prison hospital no . PERSON . He remained in that hospital until DATE with a diagnosis of \u201c consequences of neuritis of the left fibular nerve \u201d .","In the meantime the applicant lodged a complaint with ORG , describing the beatings in the police station on DATE and asking for an investigation into the incident .","On DATE a deputy ORG refused to institute criminal proceedings against police officers PERSON , finding that their actions , in a situation where the applicant had behaved in an unruly manner , had been lawful and proportionate .","On DATE a deputy ORG annulled the decision of DATE and authorised a re - examination of the applicant 's ill - treatment complaints . The relevant part of the decision read as follows :","\u201c The decision [ of DATE ] was manifestly ill - founded and premature , as the investigation had been incomplete ; the circumstances in which the injuries to [ the applicant ] had been caused were not fully examined ; [ the applicant ] was not questioned and [ he ] did not undergo an examination by a medical expert ; administrative and criminal arrestees detained in [ the police station ] were not questioned about the events ; the traffic police officers who had brought [ the applicant ] to the [ police station ] were not questioned ; therefore [ the decision ] should be annulled . \u201d","The deputy prosecutor also drew up a list of measures which should be taken in the course of the new round of the investigation , including a medical examination and questioning of the applicant , and the establishment and questioning of possible eyewitnesses among those persons who had been detained with the applicant .","On DATE a deputy ORG , in a decision worded identically to the one issued on DATE , once again refused to institute criminal proceedings against officers PERSON , confirming the lawfulness of their actions .","On DATE ORG informed the applicant that the decision of DATE had been quashed , that an additional investigation into his complaints was to be conducted and that the case file had been sent back to ORG office . When quashing the decision of DATE , ORG office repeated the list of investigative steps to be taken .","On DATE an assistant ORG dismissed the applicant 's complaints against police officers PERSON , finding no case of ill - treatment . The decision of CARDINAL DATE was similar in its wording to those issued on DATE and DATE .","NORP In DATE a neuropathologist examined the applicant and diagnosed him with asthenovegetative syndrome related to a head injury .","On DATE the ORG annulled the decision of CARDINAL DATE , finding that the investigation had been incomplete . A new round of investigation was authorised .","DATE , on DATE , an investigator of ORG office once again dismissed the applicant 's complaint , repeating the findings made in the decision of CARDINAL DATE . In addition , the investigator recounted statements made by the applicant , by an investigator who had interviewed him on DATE , by a doctor who had examined the applicant on DATE , by CARDINAL persons who had been detained with the applicant on DATE , and by the victim whom the applicant had robbed . The applicant had maintained his complaints . The investigator had testified that he had not seen any injuries on the applicant and that the latter had not made any complaints . The doctor had stated that she had been called to attend to the applicant who had complained about pain in the jaw and on the left side of the chest . She had examined the applicant and recorded injuries on the chest and lower jaw . She had presumed that the applicant had had a rib fracture . She had indicated that the applicant had to be examined by a traumatologist . The inmates had testified that the applicant had been placed in their cell in DATE on DATE . He had shown them injuries on his back and complained that he had been beaten up by the police officers . The victim had testified that he had not seen any injuries on the applicant 's body on DATE of the robbery .","The investigator concluded that officers PERSON had acted in full compliance with requirements of LAW and CARDINAL of LAW .","On DATE the ORG , acting on the applicant 's appeal against the decision of DATE , confirmed the findings made by the investigator . ORG noted that the officers ' actions had been beyond reproach , the lawfulness and proportionality of their actions being manifest .","On DATE the ORG quashed the decision of CARDINAL DATE and remitted the case for re - examination to ORG . ORG held , in particular , as follows :","\u201c At the same time it is impossible to conclude that the decision of the investigator refusing institution of criminal proceedings was lawful and well - founded , taking into account the following considerations .","As shown by the material from investigation no . CARDINAL - CARDINAL opened upon the [ applicant 's ] complaint , the investigator 's conclusions drawn up in the decision [ of CARDINAL incomplete .","The fact of [ the applicant 's ] arrest and [ his ] placement in the detention facility of LOC on DATE , at TIME , was confirmed by an extract from the registration log of persons brought to the police department ... According to an extract from the record of medical examinations of persons detained in the detention facility of ORG , on DATE , at the time of the placement , [ the applicant ] had injuries on the left and right sides of the body , the left and right buttocks , injuries on the forehead , the bridge of his nose , the left cheek , and numerous injuries on the back .","As is apparent from the statements by [ the victim of the robbery ] , on DATE , at TIME , [ the applicant ] had no visible injuries .","The decision [ of DATE ] did not indicate whether it had been established that [ the applicant ] had been injured by officers of the police department during his arrest .","Therefore , in the course of the investigation the investigator of the prosecutor 's office did not establish the time , place , extent , or method and means of infliction of the injuries which [ the applicant ] had been found to have during his examination on DATE ; the severity [ of those injuries ] was likewise not established .","Accordingly , [ the court ] can not regard as rightful and substantiated the investigator 's finding that [ the applicant ] received injuries as a result of the CARDINAL blows to his back made by PERSON and by [ the applicant 's ] knocking on the door and walls and by his being handcuffed .","The investigator did not examine , and thus did not evaluate , the [ applicant 's ] statements concerning the effect of the injuries which had led to his having obtained a leg disease ... accordingly , [ an investigator ] did not check information concerning [ the applicant 's ] stay in hospital ; a diagnosis which had been pronounced at the end of the treatment ; the severity of the damage caused to [ the applicant 's ] health leading to the diagnosis ; the existence of a causal link between the injuries which he had been found to have on DATE and his illness .","In the decision the investigator refers to statements by PERSON and PERSON , from which it transpires that they were arrested and detained in cell no . DATE , when on DATE after dinner , [ the applicant ] was placed there , allegedly in a state of intoxication ; [ he had ] injuries and explained that they had been caused by the police officers when he had offered resistance to the arresting officers .","At the same time , as is apparent from the material in investigation file no . DATE , on DATE , at TIME , [ the applicant ] was placed in a cell where PERSON . , PERSON , and Mr NORP were being held . On DATE , at TIME , [ the applicant ] was placed in cell no . CARDINAL with PERSON and PERSON","In these circumstances , the [ Regional ] Court considers that the conclusions of the [ Town ] Court about the lawfulness and rightfulness of the investigator 's decision of DATE , concerning the refusal to institute criminal proceedings , do","On DATE the ORG accepted the applicant 's complaint and annulled the investigator 's decision of DATE , endorsing the reasoning of ORG . The decision of DATE was upheld on appeal on DATE .","On DATE the investigator of the Dyatkovo Town prosecutor 's office refused to institute criminal proceedings against officers PERSON and P. The wording of that decision was similar to that of the decision of CARDINAL DATE , but with an additional paragraph which read as follows :","\u201c [ The applicant ] in his numerous complaints stated that , as a result of being beaten by the police officers , his legs had been paralysed ; however , his statement is refuted by the conclusions of a forensic medical examination which had been performed [ in compliance with ORG decision of DATE ] on the basis of [ the applicant 's ] medical records from facilities nos . IZ-CARDINAL\/CARDINAL [ detention facility of ORG ] and OB-CARDINAL\/CARDINAL ... ; on the basis of which it was established that the illnesses with which [ the applicant ] had been diagnosed in those facilities ... do not have a pathogenetic causal link to his injuries and that [ the illnesses ] are independent diseases of a non - traumatic character . When [ the applicant ] asked for medical assistance on DATE , he had an injury on the forehead and the nose bridge , an injury on the left cheek - bone , bruises on the left and right sides of the chest , and bruises on the back and buttocks . Those injuries were caused by numerous applications of firm blunt objects to those parts [ of the body ] , which could have been carried out by blows with those objects or by his being hurled against those objects . Those injuries , taken together or separately , caused ' slight ' damage to the health ... During the examination and treatment of [ the applicant ] , immediately after the injuries had been caused or in a subsequent period of time , [ the investigation ] did not establish any data which could have shown that [ the applicant ] had had a head injury , a rib fracture , a spinal injury or any other injuries of a traumatic character . \u201d","On DATE a deputy ORG quashed the decision and authorised the ORG office to open an additional investigation into the applicant 's complaints .","According to the Government , DATE the ORG closed the investigation , finding no criminal conduct in the police officers ' actions . The Government did not produce a copy of the decision of DATE . However , they submitted that officers PERSON had been questioned and had confirmed the statements they had made during the previous rounds of the investigation . In particular , the officers had stressed that the use of rubber truncheons had been an adequate and proportionate response to the applicant 's unlawful behaviour . The Government further noted that in his decision of DATE the prosecutor had relied on the results of the applicant 's medical examination of CARDINAL DATE . The examination had established that the applicant 's illnesses had had no causal link to the injuries recorded on DATE . The prosecution authorities had also questioned CARDINAL persons who had been detained together with the applicant on DATE . According to those individuals , the applicant had not complained about being beaten in the police station .","The Government further noted that ORG office of GPE had thoroughly studied the conclusions of the investigation conducted by the Dyatkovo Town prosecutor 's office DATE , and in the ORG 's view the investigation had been comprehensive . The applicant 's injuries had been \u201c caused as a result of his unlawful actions \u201d . ORG office had conceded that officers PERSON had not overstepped the boundaries of their professional responsibilities in applying force against the applicant .","On DATE the ORG found the applicant guilty of robbery and assault and sentenced him to DATE and DATE imprisonment . On DATE ORG , on appeal , reduced the sentence by DATE .","The Code of Criminal Procedure of GPE ( in force since DATE , \u201c the CCrP \u201d ) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities ' own initiative , where there are reasons to believe that a crime has been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( Article CARDINAL ) . He can order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there are no grounds to initiate a criminal investigation , the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party . The decision is amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction within a procedure established by LAW Article CARDINAL ) . Article CARDINAL of the ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .","Rubber truncheons may be used in the following cases :","- to repel an attack on a staff member of a detention facility or on other persons ;","- to repress mass disorder or put an end to collective violations of the detention rules and regulations ;","- to put an end to a refusal to comply with lawful orders of facility administration and warders ;","- to release hostages and liberate buildings , rooms and vehicles taken over by a detainee ;","- to prevent an escape ;","- to prevent a detainee from hurting himself ( section DATE ) .","Police officers are only entitled to use physical force , special means and firearms in the cases and within the procedure established by LAW ; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by LAW ( section CARDINAL ) .","Section CARDINAL of LAW provides that a police officer resorting to physical force , special means or a firearm , should warn an individual that force \/ special means \/ firearms are to be used against him . In cases when a delay in the use of force , special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage such a warning is not necessary . Police officers should ensure that damage caused by the use of force \/ special means \/ firearms is minimal and corresponds to the character and extent of the danger that an unlawful conduct and a perpetrator pose and the resistance that the perpetrator offers . Police officers should also ensure that individuals who have been injured as a result of the use of force \/ special means \/ firearms receive medical assistance .","By virtue of LAW of LAW police officers may use physical force , including combat methods , to prevent criminal and administrative offences , to arrest individuals who have committed such offences , to overcome resistance to lawful orders , or if non - violent methods do not ensure compliance with responsibilities entrusted to the police .","Sections DATE and CARDINAL of LAW lay down an exhaustive list of cases when special means , including rubber truncheons and handcuffs , and firearms may be used . In particular , rubber truncheons may be used to repel an attack on civilians or police officers , to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting work of transport , means of communication and legal entities . Handcuffs may only be used to overcome resistance offered to a police officer , to arrest an individual caught when he is committing a criminal offence against life , health or property and if he is attempting to escape , and to bring arrestees to police stations , to transport and protect them if their behaviour allows the conclusion that they are liable to escape , cause damage to themselves or other individuals or offer resistance to police officers ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98814","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2010,"docname":"CASE OF ENGEL v. HUNGARY","importance":3,"conclusion":"Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria","text":["The applicant was born in DATE and lived in GPE .","On DATE the applicant was caught in the act of committing armed robbery . In the ensuing exchange of shots , he killed a police officer and wounded another . He was also injured in his spine , as a consequence of which he became paralysed in both his legs from the waist down . Ever since , he has also been suffering from incontinence . He is now PERCENT disabled , only capable of moving in a wheelchair ; moreover , he has to use diapers .","The applicant was sentenced to life imprisonment . DATE and DATE he was detained in FAC .","The applicant described the conditions in FAC as follows : Since he was unable to fulfil the obligations incumbent on healthy inmates , he needed to sleep in his clothes in an undone bed and use his jacket as a blanket in order to avoid being sanctioned for violating the daily routine of making the bed on time . With no assistance from staff , he could wash or relieve himself only if his cellmates helped him do so . He was not provided with a proper bath chair ; instead , he was given a wooden toilet - seat which \u2013 unfit for the purposes of bathing \u2013 rotted away fast and on CARDINAL occasion , broke under him . Because of harassment from fellow inmates on account of his disability and incontinence , he did not participate in the DATE open - air stays . Classified as a ' Grade CARDINAL ' security - level prisoner , he was transported with his hands handcuffed to his belt at all times . While being transported in this posture in a van without a safety belt , he could keep himself in his wheelchair only by supporting his body by leaning his head against the door of the transport cabin . As a consequence , he regularly suffered swellings on his head . When entering or exiting the transport van , staff dragged him by his belt , sometimes on the floor causing him bruises ; an incident of this kind took place on DATE . On other occasions , his wheelchair \u2013 with the applicant , weighing QUANTITY , sitting in it \u2013 was rolled down the van 's steps .","The applicant 's complaint about the above conditions to the ORG Chief Public Prosecutor 's Office was to no avail .","According to the prison 's medical service , the applicant suffered inter alia from high blood pressure , overweight , paraplegia and a neurogenic bladder . His transfer to a specialised penitentiary was recommended but not taken up by the prison administration . Upon the applicant 's complaint , ORG investigated his situation . Its findings included the following :","\u201c The applicant 's cell is located on the ground floor ... , next to the medical consultancy room . It is suitable for accommodating CARDINAL inmates , but CARDINAL inmates , including the applicant , are actually placed in it . The furniture is refurbished and adjusted to the applicant 's health needs : the table is elevated , the beds are single rather than bunk beds , the wardrobe and the mirror are placed at a height reachable by the applicant , entrance obstacles have been removed and a handrail has been fitted next to the toilet . A cellmate has voluntarily undertaken the task of keeping the cell tidy and helping the applicant perform his everyday duties . The applicant has never been reproached for a violation of the prison cell order .","A hot water shower ( bath ) has been provided to the applicant on a DATE basis . A hand shower and a bath chair are available to him . ... A cellmate has voluntarily undertaken to help the applicant wash himself . ...","... In order to prevent harassment by fellow inmates , the applicant has been granted the opportunity to have DATE open - air stays in a [ protected ] courtyard ... The applicant , however , does not wish to make use of this possibility .","Upon the applicant 's complaints ... on CARDINAL DATE the warden ordered the transport van [ in question ] to be equipped with a safety belt and informed the applicant thereof ... as well as of the fact that , in the light of medical opinion , his transportation in an ambulance car ... was not justified . According to the findings of the investigation , the applicant suffered light scratches and bruises [ while in transport ] in DATE and DATE . Therefore the prison management instructed staff to proceed with special care in respect of the applicant . According to the opinion of the competent health organ , the applicant 's transport did not require the participation of medical staff .","On DATE the applicant requested to be transferred to ORG . His request was dismissed by ORG on DATE on the ground that he was serving his sentence in a penitentiary institution whose strictness was commensurate with the offence he had committed and with the regime imposed on him ; where his nursing and medical supervision was resolved and where physical obstacles had been removed in order to ensure his free movement in a wheelchair . The applicant filed a complaint against the decision . The complaint was dismissed by the ORG Commander on DATE and his transfer was not authorised . According to the reasoning of the decision , ' [ the applicant did ] not require permanent nursing or medical supervision . At his present place of detention , alterations had been made in the building , as required by his disability . Medical treatment , as appropriate in his present state , can be provided for him at his present place of detention , where the circumstances have been adjusted to his needs ... ' \u201d","The applicant submitted that the transport van was not equipped with a safety belt until DATE . Concerning open - air stays , he explained that the surface of the courtyard in question was uneven and therefore unsuitable for a wheelchair .","Given that other criminal proceedings were pending against him , the applicant had to be regularly transported to GPE to stand trial . In a complaint dated DATE and addressed to the head of ORG , the applicant submitted that on DATE , DATE he had been placed in an admission cell in which he had had to spend TIME with no access to water and without any possibility to change his diapers . He also submitted that during the transport he had been placed in a CARDINAL - person box of the van where he had suffered bruises : in a road curve , he had fallen out of his wheelchair and had been travelling on the floor of the van , handcuffed to his belt , with his arms under his body . He furthermore submitted that DATE , when he had requested a medical check - up , the nurse had informed him that no medical examination was available until the next weekly consultation to be held on DATE .","In the course of the ensuing investigation , on DATE a medical report was drawn up but no external sign of injury was detected . In the absence of evidence , on DATE the warden of ORG dismissed the applicant 's complaint .","Upon the applicant 's criminal complaint , an investigation was opened by ORG against unknown persons for abuse of administrative authority , but was discontinued on CARDINAL DATE by ORG for want of evidence .","In a letter dated DATE and addressed to the ORG Commander , the applicant complained about injuries allegedly suffered during his transport and the malfunction of his wheelchair . The ensuing investigation did not support the applicant 's allegations about the injuries , but his wheelchair was subsequently repaired .","On DATE the applicant was transferred to FAC where he was placed in a single cell specially designed for disabled inmates . On DATE he was examined by a forensic medical expert . In his opinion the expert stated :","\u201c ... [ In respect of standing up ] the inmate ... partly or wholly exaggerates his pains ... [ He is ] PERCENT disabled ... [ but is ] nevertheless , not totally unable to care for himself . His compulsive eating , together with his reluctance to accept painkillers ... , is a serious psychological obstacle to enhancing his mobility . At the same time ... the very existence of pain can not be proven beyond doubt . From a forensic medical point of view , it can be established that ... the inmate has received all the medical , nursing and caring help he needs . \u201d","Decree No . CARDINAL\/CARDINAL ( VII.CARDINAL . ) of the Minister of Justice on the Rules of the Execution of Imprisonment and Pre - trial ORG provides as follows :","\u201c Such inmates shall be classified as ' Grade CARDINAL security ' prisoners as are expected with good reason to commit an act severely violating the order of the penitentiary , to escape or to endanger his \/ her own life or limb or that of others , or as have already committed such acts , and whose safe detention may only be guaranteed by guarding or DATE exceptionally \u2013 by surveillance . \u201d","The CPT 's Report to ORG after its visit to GPE from CARDINAL to DATE provides , insofar as relevant , as follows :","\u201c CARDINAL . Under the prisoner grading system operated in GPE , remand or sentenced prisoners who are considered as dangerous are placed in Grade CARDINAL ( Decree No . CARDINAL\/CARDINAL ( VII.CARDINAL . ) of the Minister of ORG ) . Allocation is made either by the prosecutor , the court or the reception committee of the establishment . The ORG was informed that courts and prosecutors tend to attribute this grade to prisoners accused or convicted of serious crimes ( especially persons involved in organised crime activities ) and the prison reception committees , to persons with a previous record of ill discipline ( including those prone to escape or those who have attempted suicide ) or with a military background .","The status of Grade CARDINAL prisoners is reviewed DATE . However , it would appear that the reasons underlying the decision for placement \/ prolongation of a Grade CARDINAL measure are not disclosed to the prisoner concerned .","It is axiomatic that a prisoner should not be held in a special security regime any longer than the risk which he presents makes necessary . This calls for regular reviews of the placement decision . Further , prisoners should as far as possible be kept fully informed of the reasons for their placement and , if necessary , its renewal ; this will inter alia enable them to make effective use of avenues for challenging that measure . \u201d","The CPT 's Report to ORG after its visit to GPE from DATE to CARDINAL DATE provides , insofar as relevant , as follows :","\u201c CARDINAL . Concerning the legal safeguards applicable to prisoners placed in DATE , their status is now reviewed DATE ( at the time of the DATE visit , the frequency of reviews was DATE ) ; the ORG welcomes this change . However , the other long - standing recommendations of the CPT \u2013 concerning the provision to the inmates concerned of written information on the reasons for the measure and offering them an opportunity to express their views on DATE had not been implemented .","Many Grade CARDINAL prisoners interviewed by the delegation complained that they had not been informed of the reasons for the measure , had had no involvement in the review procedure and had received no information on the possibilities to contest it . Further , it was generally felt that the periodic review of the Grade CARDINAL status was a pure formality . The examination of relevant documentation and interviews with inmates led the delegation to conclude that the determining factors in retaining the Grade CARDINAL status were historical ones , like the violent nature of the crime committed ( often many years before ) , rather than an assessment of the inmate 's current dangerousness or propensity to act again in an unacceptable way . ... \u201d","\u201c CARDINAL . During the DATE visit , close attention was given to the situation of prisoners placed under a special security regime . The ORG has welcomed the fact that the status of prisoners classified as LAW is now reviewed DATE ; at the same time , it has called upon the NORP authorities to implement its previous recommendations concerning the provision to such prisoners of written information on the reasons for the measure as well as the opportunity to express their views on the matter . More generally , the ORG has recommended that the system of classifying prisoners as Grade CARDINAL be reviewed and refined , with a view to ensuring that this grade is only applied \u2013 and retained \u2013 vis - \u00e0 - vis prisoners who genuinely require to be accorded such a status .","The policy as regards the application of means of restraint to Grade CARDINAL prisoners - already strongly criticised in the past by the ORG - remains unsatisfactory ; the ORG has called upon the NORP authorities to review that policy without further delay . ... \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-114491","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF Y.U. v. RUSSIA","importance":3,"conclusion":"Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and lives in the town of ORG , LOC .","NORP In DATE the applicant married Mr O.A.","In the applicant \u2019s submission , after the registration of the marriage her husband told her that his father , Mr PERSON , was an influential person in the criminal world . She also submits that her husband has informal connections with police officers .","On DATE the applicant gave birth to a son , M.","NORP In DATE marital tensions began to develop between the couple .","On DATE Mr O.A. threw the applicant out of their family home without M. He said that he would take PERSON to GPE and would not allow the applicant to contact the boy .","NORP The applicant kept calling her son on the phone , but her husband \u2019s family did not allow her to speak to PERSON Her attempts to visit her son were futile .","On DATE the applicant instituted divorce proceedings before the Moscow ORG ( \u201c the district court \u201d ) . She also requested the court to make an order concerning the child \u2019s place of residence and to restrict Mr O.A. \u2019s parental rights ( \u201c to remove a child from a parent \u201d within the meaning of LAW ) .","On DATE Mr O.A. and PERSON officially registered their place of residence as being at the LOC residence . In the applicant \u2019s submission , Mr O.A. did not ask for her consent when changing PERSON \u2019s place of residence .","In DATE the applicant saw her son for the first time since her separation from her husband for TIME in the presence of ORG , his mother and sister , as well as officials of child welfare authorities .","CARDINAL different district child welfare authorities examined the applicant \u2019s and Mr O.A. \u2019s respective places of residence . ORG ( \u201c the ORG child welfare authority \u201d ) delivered a report stating that it was in the best interests of the child to stay with the applicant , while ORG ( \u201c the PERSON child welfare authority \u201d ) decided that it was best for PERSON to live with his father , who had good living conditions and was prosperous .","On DATE the district court dissolved the applicant \u2019s marriage . It further found that the best interests of PERSON required that he reside with his mother . The judgment read , in so far as relevant , as follows :","\u201c Having assessed all [ the available ] evidence as a whole , the court sees no reason to order that the child \u2019s place of residence be with his father after the dissolution of the marriage , since it has not been proven that his mother has acted in breach of the child \u2019s best interests . For a lengthy period of time the child has been living with the defendant without his mother \u2019s consent . The defendant has not taken any real steps to reunite the family after the institution of court proceedings and has not provided the claimant with an opportunity to see the child .","... The court disagrees with the conclusions of the ORG child welfare authority , as they are based exclusively on the fact that the defendant has certain assets ... The defendant did not deny that he had kept the child at his place [ of residence against the claimant \u2019s will ] , which was not taken into account by the [ ORG ] child welfare authority when drafting the conclusions .","The child was born in DATE ... Taking into account the his mother to bring him up , [ and ] the conclusions of the ORG child welfare authority , the court considers it appropriate , while dissolving the parties\u2019 marriage , to order that the child live with his mother , while ensuring his father \u2019s rights as a separately - residing parent .","The court has thus decided to dissolve the marriage ... The child ... should continue residing with [ the applicant ] . \u201d","Mr O.A. later asked the police to institute criminal proceedings against the applicant , claiming that she had hired a hitman to kill him . On DATE the authorities dismissed the request and refused to open a criminal investigation against the applicant .","Mr O.A. sent letters to child welfare authorities claiming that the applicant was trying to kill him . At some point he alleged that he had been beaten up on the street by persons hired by the applicant . Criminal proceedings instituted in this respect were suspended owing to the authorities\u2019 inability to identify those responsible .","At some point the ORG child welfare authority changed its view and produced another report stating that PERSON should live with his mother .","On an unspecified date Mr O.A. appealed against the district court judgment and sought the withdrawal of the applicant \u2019s parental rights because she had allegedly organised an attempt on his life .","On DATE ORG ( \u201c the city court \u201d ) quashed the district court judgment of DATE in part as regards the child \u2019s place of residence for the reason that the CARDINAL child care authorities had issued conflicting reports and remitted the case for fresh examination at first instance .","On DATE the district court again decided that PERSON should reside with his mother . The judgment read , in so far as relevant , as follows :","\u201c The representative of the ORG child welfare authority ... considers it appropriate [ for the court ] to order that the child \u2019s place of residence should be with his mother , but does not support [ the applicant \u2019s ] claim to have the child removed [ from his father ] and considers it unsubstantiated .","The representative of the ORG child welfare authority supports [ the applicant \u2019s ] claims and considers it necessary to order that the child live with his mother , having removed him from his father .","... The court grants the claims in part ...","Under LAW of GPE a court ... may decide to remove a child from [ his or her ] parents ( or CARDINAL of them ) without a withdrawal of parental rights . [ Such a ] restriction of parental rights is permissible where it is dangerous for a child to stay with [ his or her ] parents ( or a parent ) because of circumstances out of the parent(s ) control , such as a mental illness or other disease or distressing circumstances .","The ORG and ORG child welfare authorities established that ... [ the applicant ] \u2019s room was equipped with everything necessary for the child ...","The court has established that the defendant has impeded the claimant \u2019s contact with the child , has breached the child \u2019s rights to know who his mother is and to be brought up by his mother and has thus breached Articles CARDINAL , CARDINAL , DATE and DATE of LAW , while under the law in force he as a parent is obliged to protect the child \u2019s rights and interests ... and not to breach the claimant \u2019s rights concerning the child .","Taking into account all the circumstances as a whole , the court finds no reason to order that the child \u2019s place of residence be with his father , because it has been proven that his father has been violating the child \u2019s rights and those of the claimant . For a lengthy period the child has been living with his father without the claimant \u2019s consent , the defendant has impeded the child \u2019s contacts with his mother . The defendant has not ensured that the claimant could stay in full contact with the child , [ and ] has not ensured the child \u2019s right to be brought up by his mother ...","Taking into account all the his mother to bring him up , [ and ] the conclusions of the child welfare authorities , the court considers it appropriate to order that the child live with his mother , while ensuring the father \u2019s rights as a separately - residing parent . The claim to remove the child from his father is not granted [ on that basis that it is ] unsubstantiated , since the plaintiff has not shown , as required by LAW , that [ the defendant ] suffers from a mental or other illness or is in distressing circumstances .","The court has decided to order that PERSON , born in DATE , reside with his mother , [ the applicant ] .","The remainder of the claims is dismissed . \u201d","Mr O.A. appealed against the judgment .","On DATE the city court upheld on appeal the judgment of CARDINAL DATE , which became final .","On DATE the applicant was issued a writ of execution on the basis of the judgment of CARDINAL DATE stating that the child should reside with his mother . The writ was issued on a form which was no longer in use after DATE .","The applicant sent the writ to the circuit bailiffs\u2019 office . On CARDINAL DATE the bailiffs\u2019 service for ORG of GPE ( \u201c the circuit bailiffs\u2019 office \u201d ) delivered a decision refusing to institute enforcement proceedings because the writ was issued on an old form . They sent the decision to the applicant by post . She received it on DATE .","It appears that on a number of occasions the applicant visited the circuit bailiffs\u2019 office LOC in person .","On DATE , during one of those visits , bailiffs showed the applicant their office \u2019s undated decision not to commence the enforcement proceedings but refused to officially serve it on the applicant , claiming that she would receive it by post .","The circuit bailiffs\u2019 office did not return the writ of execution issued on the old form to the applicant , thus precluding her from immediately applying to the district court for a writ in the new form .","On DATE and DATE the applicant requested the district court to issue a writ of execution in the new form .","On DATE the applicant \u2019s representative requested the district court to order the immediate enforcement of the judgment of CARDINAL DATE .","In DATE a deputy head of the circuit bailiffs\u2019 office notified the applicant in writing that their decision of DATE had been unfounded .","On DATE the district court issued a new writ of execution and the applicant received it on an unspecified date upon her request .","The applicant complained to a prosecutor \u2019s office about the failure to institute enforcement proceedings . On DATE the prosecutor \u2019s office for ORG of GPE dismissed her complaint , stating that a decision making an order in respect of a child \u2019s place of residence was of a factual nature and could not be enforced under LAW DATE .","Nevertheless , on DATE the circuit bailiffs\u2019 office instituted enforcement proceedings but delivered a decision to postpone the use of enforcement measures for the reason that the manner in which the judgment required to be executed was not clear . For this reason , on DATE the circuit bailiffs\u2019 office requested the district court to clarify the requirements of the writ of execution and to specify the manner in which it should be enforced .","While awaiting the district court \u2019s decision , the circuit bailiffs\u2019 office postponed the use of enforcement measures because the writ of execution was unclear on DATE and DATE .","On DATE ORG issued LAW , upon his father \u2019s request , with a passport enabling him to leave the territory of GPE .","On DATE the district court dismissed the circuit bailiffs\u2019 office \u2019s request for clarification stating that , when performing his duties , a bailiff should use all powers provided for by law .","On DATE the circuit bailiffs\u2019 office sent an official summons to ORG address and also sent him an order to immediately comply with the judgment of DATE as upheld on appeal on CARDINAL DATE . Furthermore , on CARDINAL and DATE and DATE bailiffs from the circuit bailiffs\u2019 office visited Mr O.A. \u2019s place of residence indicated in the writ of execution on FAC in GPE ( \u201c the PERSON flat \u201d ) . Mr PERSON was absent on all QUANTITY occasions . The bailiffs established that Mr O.A. resided at the address in question and that PERSON was absent .","On DATE the circuit bailiffs\u2019 office received a request for termination of the enforcement proceedings from ORG for the reason that PERSON had moved from GPE to the village of GPE , in LOC of LOC .","On DATE ORG representative was served with an order requiring ORG to comply with the court judgment . The representative explained that PERSON resided together with his son PERSON in the village of GPE . The representative asked the circuit bailiffs\u2019 office to terminate the enforcement proceedings for the reason that Mr O.A. had moved away from GPE , which resulted in a delay in the execution of the judgment .","On DATE the circuit bailiffs\u2019 office asked the bailiffs\u2019 service for LOC of LOC ( \u201c the PERSON bailiffs\u2019 office \u201d ) to visit Mr O.A. at the LOC residence . A bailiff from that office visited the LOC residence on DATE . Nobody was home but the bailiff established that both PERSON and PERSON resided there .","On DATE and DATE the applicant notified the police that her son had been kidnapped .","On DATE a bailiff from the PERSON bailiffs\u2019 office again visited the LOC residence . Nobody was home but the bailiff established that Mr O.A. resided there and PERSON was absent . On DATE , however , police officers paid a visit to ORG house in DATE . Both Mr O.A. and PERSON were there . PERSON \u2019s identity was confirmed by his passport , which Mr O.A. presented to the police . A police officer talked to PERSON in the presence of ORG adult family members . No further action was taken .","Towards DATE the applicant visited ORG of the Interior . Officers P. and PERSON told her that they had gone to GPE on DATE and had seen her son . They produced a picture of a boy . The applicant did not recognise her son in that picture .","On DATE a bailiff from the circuit bailiffs\u2019 office visited Mr O.A. \u2019s flat at FAC in GPE . Nobody opened the door at first . Mr O.A. later appeared and told the bailiff that PERSON was absent from the flat . He refused to receive a copy of the decision ordering the commencement of enforcement proceedings and requiring him to comply with the judgment .","On DATE an investigator from ORG of ORG ( \u201c the investigator \u201d ) visited the village of LOC . He met PERSON , his father , as well as PERSON \u2019s aunt , uncle and cousin near a caf\u00e9 not far from the Nikitskoe residence . The investigator talked to PERSON and his minor cousin in the presence of the adults . PERSON said that he lived with his father and the latter \u2019s wife and that he did not want to live with his mother . The investigator made a video of PERSON and his minor cousin .","DATE . On DATE the police unit in charge of cases involving minors paid a visit to the LOC residence and issued a certificate upon its examination confirming that PERSON and his son PERSON lived in good conditions . The following day the Ramenskoe Town Prosecutor \u2019s Office notified the applicant of the following . PERSON , his wife , parents and PERSON were residing in GPE in a CARDINAL - room house . PERSON did not go to kindergarten but was receiving DATE private lessons from a teacher hired by ORG In the event of PERSON having medical problems Mr O.A. personally took him to a GPE hospital . Mr O.A. performed his parental duties in full and the child had a separate bedroom . PERSON resided in ORG house in DATE on a permanent basis .","On CARDINAL DATE the investigator issued a decision not to institute a criminal investigation into the alleged kidnapping for lack of a criminal event , because the child lived with his father .","On DATE the circuit bailiffs\u2019 office issued a decision to search for the applicant \u2019s son which was forwarded to the police on DATE .","On DATE the applicant and a journalist went to Nikitskoe and saw Mr PERSON and PERSON \u2019s cousin . Mr PERSON told the applicant that her son was not in the village . On DATE the police established that PERSON resided at the LOC residence confirmed by a photo of a police officer together with PERSON and his cousin . On DATE the police communicated this information to the circuit bailiffs\u2019 office .","The decision of CARDINAL DATE not to institute criminal proceedings into the kidnapping was quashed on DATE by ORG of ORG . On DATE a new decision not to open an investigation into PERSON \u2019s kidnapping was taken but this decision was also quashed .","On DATE Mr O.A. came to the Ramenskoe Town Prosecutor \u2019s Office to give \u201c explanations \u201d concerning his son .","On DATE a bailiff from the PERSON bailiffs\u2019 office again visited the LOC residence . Nobody was home . The bailiff established that Mr O.A. resided there and PERSON was absent .","On DATE the Ramenskoe bailiffs\u2019 office took over the case , having received the writ of execution , and opened enforcement proceedings .","On DATE and CARDINAL and DATE bailiffs from the PERSON bailiffs\u2019 office visited the LOC residence . Nobody was home on these dates .","On DATE ORG ( \u201c the child welfare authority \u201d ) paid a visit to the LOC residence and established that LOC lived there with his father .","On DATE the investigator together with a bailiff from the PERSON bailiffs\u2019 office , a representative of the child welfare authority , the applicant and her mother came to the LOC residence . Nobody was home . The investigator questioned the neighbours , who confirmed that Mr. PERSON \u2019s family lived there most of the time . The authorities established that ORG might reside at CARDINAL other GPE addresses .","On DATE the investigator visited CARDINAL flats in GPE : CARDINAL at TIME , and another one at FAC . It was established that Mr O.A. \u2019s brother lived at FAC , while Mr O.A. \u2019s sister resided at FAC . Both explained that Mr O.A. lived at the LOC residence .","On DATE the investigator again decided not to open a criminal case concerning the allegation of kidnapping .","On DATE the PERSON bailiffs \u2019s office summoned PERSON O.A. to their LOC on DATE . Mr O.A. failed to appear .","On DATE the applicant complained to the district court about the investigator \u2019s decision of CARDINAL DATE not to open criminal proceedings . The complaint was returned to the applicant in order for her to eliminate defects in the document .","On DATE , CARDINAL , DATE , DATE and DATE bailiffs from the PERSON bailiffs\u2019 office , accompanied on some occasions by the police and the applicant , visited the LOC residence . Nobody was home .","On DATE the PERSON bailiffs\u2019 office ordered a temporarily limit on ORG freedom to leave GPE and forwarded the order to the border control service . On DATE the PERSON bailiffs\u2019 office decided to search for the child and forwarded a decision in that regard to the police . They repeated their request on DATE .","On DATE a bailiff from the PERSON bailiffs\u2019 office imposed a fine of MONEY ( MONEY ) on ORG for a continuing failure to comply with the requirements of the writ of execution .","On DATE the district court dismissed the applicant \u2019s complaint about the ORG refusal of CARDINAL DATE to institute criminal proceedings in connection with her son \u2019s kidnapping .","DATE . On DATE , DATE and DATE bailiffs from the PERSON bailiffs\u2019 office visited the LOC residence . Nobody was home . They also asked the police to send a police officer on a DATE basis to the LOC residence in order to check whether PERSON and PERSON resided there .","On DATE the applicant lodged another complaint with the district court about the investigator \u2019s decision of CARDINAL DATE . On DATE the complaint was dismissed . On DATE ORG upheld the first - instance decision at final instance .","It appears that on an unspecified date the ORG district department of the interior decided to resume the investigation into the applicant \u2019s allegations of kidnapping . In the course of this investigation , on CARDINAL DATE an official from the unit in charge of cases involving minors questioned PERSON in the presence of his father . PERSON \u2019s identity was confirmed by his passport . PERSON told the official that he wanted to live with his father .","On DATE it was decided once more not to institute criminal proceedings into the alleged kidnapping . The applicant did not challenge the decision .","On an unspecified date the transport police informed the PERSON bailiffs\u2019 office that Mr O.A. had purchased a plane ticket to GPE for DATE . On DATE bailiffs came to the airport to question Mr. O.A. but he was not among the passengers boarding the plane . On the same date the bailiffs went to the LOC residence but Mr GPE and PERSON were not there .","On DATE the ORG opened a file concerning the search for PERSON and put him on the federal search list .","On DATE the PERSON bailiffs\u2019 office requested the district court to clarify the manner in which the execution of its judgment of CARDINAL DATE should be carried out . On DATE the district court issued a clarification concerning the execution of its judgment of CARDINAL DATE , stating that ORG was under an obligation to take PERSON to the applicant \u2019s place of residence .","On DATE the bailiffs suspended the execution proceedings in the absence of Mr O.A. and M.","DATE . On DATE the police visited the LOC residence . Mr GPE and PERSON were absent . Mr O.A. \u2019s father explained that they were in the PERSON flat .","On DATE Mr O.A. talked to a prosecutor on the phone and stated that he and his family were on vacation until DATE and refused to give the particulars of PERSON \u2019s whereabouts .","According to the Government \u2019s submissions of CARDINAL DATE , PERSON \u2019s whereabouts remained unknown to that date .","According to the information provided by the applicant on CARDINAL DATE , the judgment of DATE remains unenforced to that date and PERSON continues to live with his father . The applicant submitted that she had not seen her son for DATE .","Both parents have equal parental rights ( LAW ) . Parents have a right and an obligation to bring up their children . The GPE right to bring up their children has precedence over such a right of any other person ( LAW ) . A child \u2019s place of residence in case of separation of the parents should be established by an agreement between the parents . If the parents disagree on a child \u2019s place of residence , the dispute should be resolved by a court , taking into account the child \u2019s best interests and their opinion . The court should consider how attached a child is to each parent , his or her age , the moral qualities of the parents , their material welfare , family status , and so forth ( LAW ) . A parent residing separately from his or her child has a right to contact him or her and to participate in his or her upbringing ( LAW ) . A court may restrict parental rights ( \u201c to remove the child from the parent \u201d ) if a parent could be dangerous to his or her child because of circumstances out of their control ( a mental or other illness , distressing circumstances ) or where their behaviour is dangerous for the child but not to the extent necessary to warrant withdrawal of parental rights ( LAW ) .","A bailiff must issue a decision to open enforcement proceedings or to refuse to do so within DATE of receipt of a writ of execution ( Article CARDINAL ) . The creditor , the debtor and the bailiff can ask the court which issued the writ of execution to clarify its provisions and the manner of its enforcement ( LAW ) . If the debtor fails to fulfil the obligations contained in the writ of execution within the time - limit established for doing so voluntarily , the bailiff shall recover an execution fee from the debtor and set up a new time - limit for the execution of those obligations ( LAW ) . If the debtor does not fulfil the obligations within the newly established time - limit , the bailiff shall impose a fine on the debtor ( LAW ) . The court must examine complaints about the decisions , actions or inaction of bailiffs within a DATE time - limit ( LAW ) ."],"violated_articles":["8"],"violated_paragraphs":["8-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81356","languageisocode":"ENG","respondent":"NOR","branch":"GRANDCHAMBER","date":2007,"docname":"CASE OF FOLGER\u00d8 AND OTHERS v. NORWAY","importance":1,"conclusion":"Violation of Article 2 of Protocol No. 1 - Right to education-{general};Non-pecuniary damage - finding of violation sufficient","judges":"Anatoly Kovler;Christos Rozakis;Corneliu B\u00eersan;Dean Spielmann;Elisabeth Steiner;Fran\u00e7oise Tulkens;Ineta Ziemele;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky","text":["The present application was lodged by parents , who are members of ORG ) , and their children , who were primary - school pupils at the time of the events complained of in the present case : PERSON ( born in DATE ) , Mr PERSON ( born in DATE ) and their son , PERSON ( born in DATE ) ; PERSON ( born in DATE ) , PERSON ( born in DATE ) and their CARDINAL sons , PERSON ( born in DATE ) and PERSON ( born in DATE ) ; PERSON ( born in DATE ) and her son , PERSON ( born in DATE ) . Initially the ORG had also joined the application , but it subsequently withdrew .","On DATE the ORG struck the application out in so far as it concerned the ORG and declared the application inadmissible on grounds of non - exhaustion in respect of the applicant children ( for which reason , the term \u201c applicants \u201d used elsewhere in the present judgment refers to the applicant parents ) . The ORG moreover observed that , while the applicant parents had complained under the LAW in particular about the absence of a right to full exemption from the ORG subject ( see paragraph CARDINAL below ) , they had also challenged before the ORG the limited possibilities and the modalities for obtaining partial exemption . However , as can be seen from ORG judgment , the applicant GPE lawsuit and appeal to ORG had been directed against the ORG subject and its implementation generally . ORG found no ground for determining whether the teaching of the NORP children had occurred in a manner which violated the relevant human rights treaties . In the light of the foregoing , the ORG found that the applicant parents had failed to exhaust domestic remedies as required by LAW in respect of their complaint about the possibilities and modalities for obtaining partial exemption from the ORG subject and declared this part of the GPE application inadmissible .","In its subsequent decision on admissibility of DATE , the ORG held that , in its examination of the issue regarding full exemption , the above limitations on the scope of the case that followed from the decision of CARDINAL DATE did not prevent it from considering the general aspects of the partial - exemption arrangement , notably in the context of the GPE complaint under LAW .","GPE has a State religion and ORG , of which PERCENT of the population are members . LAW provides :","\u201c Everyone residing in the GPE shall enjoy freedom of religion .","ORG remains the ORG \u2019s official religion . Residents who subscribe to it are obliged to educate their children likewise . \u201d","Instruction in the NORP faith has been part of the NORP school curriculum since DATE . From DATE members of religious communities other than ORG were entitled to be exempted in whole or in part from the teaching of the NORP faith .","In connection with the enactment of the former LAW DATE ( lov om grunnskolen , CARDINAL DATE , no . DATE , hereafter referred to as \u201c the DATE LAW ) , ORG decided that teaching of the NORP faith should be dissociated from the baptismal instruction of the ORG and aimed at teaching the main content of the history of the Bible , the principal events in NORP history and basic knowledge of ORG Faith for children ( section CARDINAL(CARDINAL ) of the Act ) .","NORP Under the \u201c NORP object clause \u201d ( den kristne form\u00e5lsparagraf ) in LAW :","\u201c Primary school shall , with the understanding and cooperation of the home , assist in giving pupils a NORP and moral education and in developing their abilities , spiritual as well as physical , and giving them good general knowledge so that they can become useful and independent human beings at home and in society .","School shall promote spiritual freedom and tolerance , and place emphasis on creating good conditions for cooperation between teachers and pupils and between the school and the home . \u201d","Teachers were required to teach in accordance with ORG faith ( section CARDINAL(CARDINAL ) , added in DATE ) .","In accordance with section CARDINAL ) of the CARDINAL Act , children of parents who were not members of ORG were entitled , upon the GPE request , to be exempted in whole or in part from lessons on the NORP faith . Pupils who had been exempted could be offered alternative lessons in philosophy .","DATE a process of reform of compulsory primary and secondary school took place . In DATE ORG decided to bring the school starting age forward from DATE it extended compulsory school attendance from DATE . A new curriculum was presented to ORG . The majority of ORG , ORG and ORG proposed that NORP , other religions and philosophy be taught together . It emphasised the importance of ensuring an open and inclusive school environment , irrespective of the ORG social background , religious creed , nationality , sex , ethnic group or functional ability . School should be a meeting place for all views . Pupils having different religious and philosophical convictions should meet others and gain knowledge about each other \u2019s thoughts and traditions . School should not be an arena for preaching or missionary activities . It was noted that since DATE teaching of the NORP faith had been dissociated from ORG baptismal instruction . The subject should give knowledge and insight but should not be a tool for religious preaching . The ORG \u2019s majority further considered that guidelines for exemptions should be worked out in order to achieve a uniform practice and that minority groups should be consulted . Exemptions should be limited to parts of the subject , especially material of a confessional character and participation in rituals .","Subsequently , a white paper ( St.meld . nr . CARDINAL for DATE ) on NORP , religion and philosophy ( kristendomskunnskap med religions- og livssynsorientering , hereafter referred to as \u201c the ORG subject \u201d ) was presented , in which ORG , ORG and ORG ( Kirke- , utdannings- og forskningsdepartementet ; as from DATE ORG ( Utdannings- og forskningsdepartementet ) \u2013 hereafter \u201c the Ministry \u201d ) indicated the following guidelines for making exemptions :","\u201c No pupil should feel that being exempted is unpleasant or a stigma ;","No pupil should be pressurised to stand out as a representative of a specific philosophy of life and the school should therefore display great caution in class or at the school in its handling of a request for exemption ;","It should not be automatic for certain pupils to be exempted from certain parts of the syllabus ;","If the circumstances lend themselves to it and the parents \/ pupil so wish , the background and reasons for an exemption can be taken up in the lessons .","An exemption does not mean a freedom to be ignorant ... \u201d","The majority of the above - mentioned parliamentary committee endorsed the curriculum in the main and pointed out that NORP should form the central part of the ORG subject ( Innst.s.nr CARDINAL for DATE ) . It further stated :","\u201c The majority would also underline that the teaching should not be value - neutral . The aim that the teaching should not be preaching should never be interpreted to mean that it should occur in a religious \/ ethical vacuum . All teaching and education in our primary schools shall take the school \u2019s object clause as a starting point and , within this subject , NORP , other religions and philosophy shall be presented according to their own special features . The subject should place emphasis on the teaching of NORP . \u201d","A minority of CARDINAL proposed that , for all primary - school pupils , there should be a right to full exemption from the ORG subject and to alternative teaching .","In the course of preparing the amendments to the law , the ORG commissioned PERSON , then a ORG Judge , to make an assessment of compulsory education in the ORG subject from the angle of GPE \u2019s obligations under public international law . In his report of DATE , he concluded :","\u201c The object clause of LAW , whether taken alone or together with LAW and other special rules on the ORG and schools , does not provide a basis for establishing that the teaching of NORP under the new syllabus will of legal necessity become preaching , educative or influential in favour of ORG . The legislature may choose to make provision for education in the form of preaching to pupils who are of this creed , but not to others . That would be inconsistent with our international obligations and LAW on the protection of human rights .","What emerges , from a legal point of view , from the somewhat unclear concept of \u2018 confessional basis\u2019 , is that a natural consequence of the ORG system is that the legislator lets instruction in religion or philosophy include ORG thoughts , not other forms of NORP . The law on the new subject , which includes a part on NORP , has opted for this . ... The solution has been opted for because the majority of the population in GPE is affiliated to this creed . It is evidently motivated by objective reasons . It can not be ruled out by human rights treaties , provided that the teaching is otherwise pluralistic , neutral and objective . \u201d","As regards the issue of exemption from the ORG subject , PERSON stated :","\u201c In the situation as it emerges I find that a general right of exemption would be the safest option . This would mean that international review bodies would not undertake a closer examination of thorny questions that compulsory education raises . However , I can not say that a partial exemption would violate the conventions , provided that the operation of the system falls within the framework of the relevant treaty obligations . A lot would depend on the further legislative process and the manner of implementation of the subject . \u201d","Sections CARDINAL and CARDINAL of the DATE Act were amended by LAW of DATE ( no . DATE ) , which came into effect on DATE . The new provisions , plus an object clause similar to section CARDINAL of the former GPE , were subsequently included in sections DATE and CARDINAL - CARDINAL respectively of LAW ( PERSON om grunnskolen og den videreg\u00e5ende oppl\u00e6ring av CARDINAL . DATE nr . DATE \u201c LAW DATE \u201d ) , which came into force on DATE .","Section CARDINAL - CARDINAL(CARDINAL ) provided :","\u201c The object of primary and lower secondary education shall be , in agreement and cooperation with the home , to help give pupils a NORP and moral upbringing , to develop their mental and physical abilities , and to give them good general knowledge so that they may become useful and independent human beings at home and in society . \u201d","Section CARDINAL - CARDINAL read :","\u201c Instruction in NORP , religion and philosophy shall","( i ) transmit thorough knowledge of the Bible and NORP in the form of cultural heritage and ORG Faith ;","( ii ) transmit knowledge of other NORP communities ;","( iii ) transmit knowledge of other world religions and philosophies , and ethical and philosophical subjects ;","( iv ) promote understanding and respect for NORP and humanist values ; and","( v ) promote understanding , respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions .","Instruction in NORP , religion and philosophy is an ordinary school subject , which should normally bring together all pupils . The subject shall not be taught in a preaching manner .","A person who teaches NORP , religion and philosophy shall take as a starting point the object clause in section CARDINAL - CARDINAL and should present NORP , the different religions and philosophy from the standpoint of their particular characteristics . The same pedagogical principles shall apply to the teaching of the different topics .","A pupil shall , on the submission of a written parental note , be granted exemption from those parts of the teaching in the particular school concerned that they , from the point of view of their own religion or philosophy of life , consider as amounting to the practice of another religion or adherence to another philosophy of life . This may concern , inter alia , religious activities within or outside the classroom . In the event of a parental note requesting exemption , the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum . \u201d","From the travaux pr\u00e9paratoires it can be seen that the expression \u201c religious activities \u201d was meant to cover , for example , prayers , psalms , the learning of religious texts by heart and the participation in plays of a religious nature .","In accordance with a circular by ORG ( ORG ) , a parental note to the school requesting exemption should contain reasons setting out what they considered amounted to practice of another religion or adherence to another philosophy of life . The pupil should be granted an exemption after the parents had specified the reasons . If the request was rejected , the parents had a right of appeal to ORG in the county concerned . The appeal was sent via the school , which then had an opportunity to alter its decision .","The requirement of giving reasons was further specified in a ministerial circular of CARDINAL DATE ( ORG ) , according to which no reasons were required for making an exemption from clearly religious activities . Beyond that , with regard to matters falling outside the main rule for making exemptions , stricter requirements applied in respect of reasons .","In connection with the preparation of the ORG subject , associations representing minority convictions expressed strong objections , notably that the subject was dominated by ORG NORP and contained elements of preaching . ORG commented , inter alia , that the subject had a confessional basis ( konfesjonsforankring ) and that the possibility foreseen for obtaining exemption from only parts of the subject was inadequate . At its national congress in DATE the ORG decided to invite ORG to reject the government \u2019s proposal to limit the right of exemption .","From DATE the ORG subject was gradually introduced into the primary - school curriculum , replacing the subject of NORP and philosophy of life . During DATE , the subject was introduced at all levels .","On DATE the ORG issued a press release about the completion of CARDINAL evaluation reports on the ORG subject , one entitled \u201c GPE , ORG and ORG experiences with the ORG subject \u201d ( Foreldres , elevers og l\u00e6reres erfaringer med GPE - faget ) , provided by PERSON , the other entitled \u201c A subject for every taste ? An evaluation of the GPE subject \u201d ( Et fag for enhever smak ? En evaluering av GPE - faget ) by the PERSON i ORG and PERSON . ORG had requested that a survey of the implementation of the exemption rules be prepared after a DATE period . Both reports concluded that the partial - exemption arrangement was not working as intended and should therefore be thoroughly reviewed . The second report listed the following \u201c Main conclusions \u201d :","\u201c In this part of our report we have discussed whether there is concordance between ORG \u2019s intentions , principles and exemption schemes on the one hand and its practical implementation in schools nationwide on the other , and whether parental rights can be said to be ensured when the teaching and exemption scheme are organised the way they are . The perspective of parental rights , which is central to the project \u2019s mandate , has made it necessary to focus especially on the experiences various groups of parents have had with the subject and with the exemption scheme .","All things considered it should be said that the great majority of the parents we have been in contact with , who belong to ORG , are satisfied with the subject or have no strong opinions about it . However we have found powerful resistance to important aspects of the subject among other groups of parents . The lasting antipathy to the subject from parents belonging to religious \/ faith minorities means that ORG can hardly be said to integrate and include as intended .","The principal and empirical surveys provide grounds for the following main conclusions :","There is broad agreement among parents that it is important to have some common teaching in the subject concerning different religions and beliefs , but there is no agreement about","\u2022 what the contents and objectives of the common teaching should be ;","\u2022 in DATE the pupils should be taught about religions other than their own .","NORP In practice some of the subject \u2019s intentions are ensured at all surveyed schools , but at none of them are all the fundamental intentions ensured . Deficient implementation of the central intentions underlying the subject can be explained by","\u2022 tensions in the subject description itself and between the various intentions underlying the subject , making it difficult to implement ;","\u2022 lack of resources and problems with implementation presuppose changes at schools .","NORP The current exemption scheme does not work so that parental rights are ensured in practice . This is due to the following reasons among others :","\u2022 the information schools give about the exemption scheme is in many ways not suited to safeguarding the possibility of exemption ;","\u2022 the information given about ORG classes is of too general a nature for parents to be able to notify their intention regarding an exemption . For example , information about working methods is hardly ever given . Besides , the lesson plans generally come too late for parents to have a practical opportunity of asking for an exemption ;","\u2022 schools interpret LAW too strictly compared with the clarifications given both by ORG and ORG . For instance , an exemption is often granted only in respect of those activities which are \u2018 clearly religious GPE . Furthermore several schools report attitudes which give the impression that it is practically impossible to be granted an exemption ;","\u2022 schools offer very little differentiated teaching to pupils who are to be exempted from parts of the subject , and pupils with an exemption mostly sit passively in the classroom ;","\u2022 in addition , a number of parents from minority - language backgrounds do not have the language competence necessary to exercise their rights even though they would like an exemption . In many cases this causes distrust in school \/ home relations . A considerable number of parents from minority backgrounds say they want full exemption but will not apply because they are afraid of a conflict with the school that may harm their children ;","\u2022 the integration of themes and subjects helps ORG become invisible in the timetable so that in practice it is very difficult to ask for an exemption .","Changes should be made which still ensure some teaching for the whole class , while ensuring parental rights in practice . This only seems possible under certain conditions .","\u2022 Arrangements should be made in order to facilitate teaching about the different religions and beliefs and promote dialogue and mutual respect in some tuition for the whole class . Efforts should probably be made to have flexible models that can be adjusted to the special conditions prevailing for lower primary , upper primary and lower secondary levels respectively in different parts of the country and for different groups of pupils ;","\u2022 Considering the problems we can now see at several schools , it should be possible to provide for full exemption . This would be the safest solution in respect of international conventions and probably also the one that in the long run would be best suited to ensuring support and legitimacy for a subject that is focused on religion and belief .","We have established that the variations we have found in teaching in different parts of the country , at some schools and in different classes , give us reason to ask if ORG is one or CARDINAL new subject . \u201d","In the meantime , on DATE ORG , together with CARDINAL sets of parents who were members of the ORG and whose children went to primary school , brought proceedings before ORG ( byrett ) on account of administrative refusals of the GPE applications for full exemption from the teaching of the ORG subject . They claimed that the refusal of full exemption violated the GPE and the children \u2019s rights under LAW No . CARDINAL , taken on their own or in conjunction with LAW . They also relied on , amongst other provisions , Articles DATE and CARDINAL of the DATE United Nations International Covenant on Civil and Political Rights and LAW .","By a judgment of DATE , ORG rejected the ORG \u2019s objection that the ORG lacked a legal interest and hence did not have legal standing . However , on the substantive issues ORG found for the ORG and rejected the claim .","The ORG and the parents appealed to ORG ( lagmannsrett ) , which by a judgment of DATE upheld ORG judgment .","On a further appeal by the applicants , ORG ( PERSON ) , by a judgment of CARDINAL DATE , unanimously dismissed the appeal in so far as it concerned the ORG on the ground that it lacked a legal interest sufficient to have standing in the case . In so far as it concerned the other appellants , it unanimously dismissed their appeal and upheld ORG judgment .","In his reasoning , approved in the main by the other four Justices sitting in the case , the first voting judge , Mr Justice PERSON , stated from the outset that \u201c [ the ] case concerns the validity of the administrative decisions rejecting the GPE applications for full exemption for their children from the primary and secondary school ( GPE ) subject \u201d . He defined the issue to be determined as being \u201c whether instruction in the [ GPE ] subject with a limited right to exemption [ was ] contrary to GPE \u2019s international legal obligations to protect , inter alia , freedom of religion and belief \u201d .","Thereafter , Mr Justice PERSON undertook an extensive analysis of the legislative history and the position under international human rights law , notably the relevant provisions and case - law of ORG and the DATE LAW ( \u201c the ORG \u201d ) . Dealing in turn with each of the relevant provisions of LAW DATE , Mr Justice PERSON made the following observations about the NORP object clause in section CARDINAL - CARDINAL(CARDINAL ) .","\u201c The object clause applies to all teaching in primary and lower secondary schools . The provision is a general one , and its scope may be difficult to determine . It may raise questions relating to the ORG provisions regarding freedom of religion and parental rights ; see Judge PERSON , pages CARDINAL et seq . of Proposition No . DATE ) to the PERSON [ the larger division of ORG ] . As far as the ORG subject is concerned , the provision must be viewed in conjunction with section LOC ) , which establishes that this subject is an ordinary school subject for all pupils , and that instruction in the subject shall not involve preaching . The object clause must be interpreted and applied in such a way that it does not conflict with the conventions that have been incorporated pursuant to section CARDINAL ( see also section CARDINAL ) of LAW .","As a result of changes and amendments in subject syllabuses and national standard curricula over time , the expression \u2018 NORP and moral NORP must be interpreted as meaning that NORP and humanist values are to be viewed in conjunction with each other . Both the NORP and the humanist traditions underscore the importance of truth , human dignity , charity , democracy and human rights . These are values common to almost everyone in GPE , regardless of religion or philosophy of life . The conventions do not require that teaching in schools must be value neutral ; see the judgment of ORG in the case of PERSON , PERSON and PERSON v. GPE ( DATE , \u00a7 CARDINAL , Series A no . CARDINAL ) .","The object clause establishes that all school education shall take place in cooperation and agreement with the home . Any effort by primary and lower secondary school teachers to help give pupils a NORP upbringing can only be made with the GPE consent and in cooperation with the home . Interpreted in this way , the provision is not incompatible with LAW ORG regarding freedom of thought , conscience and religion or with LAW No . CARDINAL to LAW and LAW ORG regarding parents . The reference to the object clause in section CARDINAL(CARDINAL ) which prescribes that teachers of the ORG subject shall take the NORP object clause of the primary and lower secondary school as their point of departure thus has no independent significance for the issue of whether there is a violation of the conventions . \u201d","As regards section CARDINAL - CARDINAL(CARDINAL ) to ( CARDINAL ) of LAW DATE , Mr Justice PERSON stated as follows .","\u201c The appellants have emphasised that the LAW requires the teaching to give pupils a thorough knowledge of the Bible and of NORP in the form of cultural heritage and ORG Faith , while it merely requires knowledge of other world religions , beliefs and ethical and philosophical topics .","I refer to the fact that it may be inferred from the practice of ORG that the GPE Parties themselves decide the scope and content of teaching ; see PERSON , PERSON and PERSON , cited above , \u00a7 DATE , and NORP v. GPE , DATE , \u00a7 CARDINAL , Reports of Judgments and Decisions CARDINALVI . Thus , LAW ORG and LAW No . CARDINAL do not preclude compulsory instruction in the content of various religions and beliefs and in the history of religions and ethics , provided that such instruction is given in an objective , critical and pluralistic manner . In this respect , I refer to my earlier review and summary of the decisions and comments of the convention bodies . The compulsory instruction must cover different religions and beliefs . The greater emphasis placed in section DATE ) on knowledge of NORP than on knowledge of other religions and beliefs is , in my opinion , within the limit of the discretion accorded by the conventions to GPE Parties . The requirement that compulsory instruction must be objective , critical and pluralistic can not be interpreted as meaning that there must be a specific , proportional division of instruction between different religions and different philosophies of life . In the light of the history , culture and traditions of the individual ORG , it must be acceptable for certain religions or beliefs to be more dominant than others .","Indoctrination or other preaching of a specific religion or a specific philosophy of life will be contrary to LAW and the ORG ; see PERSON , PERSON and PERSON , cited above , \u00a7 DATE , and GPE , cited above , \u00a7 CARDINAL , and point CARDINAL of the comment of ORG of DATE . Accordingly , section CARDINAL - CARDINAL(CARDINAL ) of LAW prescribes that instruction in the GPE subject shall not involve preaching .","The appellants , supported , inter alia , by Judge PERSON \u2019s report ( page CARDINAL of Proposition no . CARDINAL ( DATE ) to the PERSON ) , have argued that instruction that communicates a specific religious view in a way that is liable to influence pupils to adopt a specific faith is also a violation of the convention provisions regarding freedom of religion and parental rights . I agree that such communication might involve a violation . However , the expression \u2018 liable to\u2019 may be interpreted in such a way as to give it greater scope than that which it derives from the decisions of ORG . I shall therefore keep to the criteria that have been developed in the ORG \u2019s practice . In connection with the introduction of the ORG subject , the travaux pr\u00e9paratoires show that the Ministry and the majority of ORG were extremely concerned to emphasise that the subject was to be an ordinary school subject for all pupils . This has been expressly stated in the wording of the LAW ; see section CARDINAL - CARDINAL(CARDINAL ) , first sentence . The legislator has also stated that the ORG subject shall be a subject designed to provide knowledge ; see , for instance , page CARDINAL , second column , and page CARDINAL of Proposition no . CARDINAL ( DATE ) to the PERSON . Section DATE ) provides that NORP , other religions and philosophies of life shall be presented on the basis of their distinctive characteristics . On the other hand , ORG stated that instruction shall not be value neutral ; see page CARDINAL of Recommendation no . CARDINAL ( DATE ) to ORG . This in itself can not be contrary to the conventions since , as I have established earlier , neither the ORG nor the ORG is interpreted as meaning that instruction shall be neutral as regards values . \u201d","As to section CARDINAL ) of LAW DATE , Mr Justice PERSON held that , if interpreted against the background of the relevant provisions of the LAW and the ORG and CARDINAL of LAW , it must be understood to the effect that pupils had a right to be exempted and that their parents had no obligation to let their children follow lessons on religion and philosophy regarded as preaching or indoctrinating in the sense of those treaties . The children could therefore be absent from such classes . The question as to how large a part of the syllabus would be affected in this way would have to be decided in each concrete case depending on how the teaching was planned and implemented . In the view of Mr Justice PERSON , the provision on exemption was not contrary to any requirements pertaining to religious freedom and parental rights . The Convention requirement that the teaching should be objective , critical and pluralistic did not preclude compulsory education in the content of the different religions and philosophies of life or giving a particular religion or philosophy , in view of ORG history , culture and traditions , a more prominent place than others . As already mentioned , LAW DATE provided that the subject should be an ordinary school subject . According to the preparatory documents , it was to be a knowledge - based subject . The LAW required that the teaching be neutral and not preaching . Therefore it did not appear that the provisions in section CARDINAL regarding the contents of the teaching were contrary to the Convention .","Mr Justice PERSON further considered the parts of the school curriculum ( the Ten - Year Compulsory Schooling Curriculum , issued by ORG in DATE , referred to below as \u201c the Curriculum \u201d ) that , in the appellants\u2019 submission , gave preference to the NORP faith and influenced pupils to opt for NORP . In relation to GPE \u2019s international obligations , the ORG , which had its legal basis in sections CARDINAL - CARDINAL and CARDINAL of LAW DATE and the relevant regulation of DATE , had the same legal status as other regulations . However , he observed , what mattered was that pupils gained understanding of the plurality of convictions and thoughts , and that the teaching did not present one faith as being superior to others . It ought to be acceptable , in the light of a Contracting ORG \u2019s history , culture and traditions , that one or more religions or philosophies of life be given a more prominent place than others .","As to the appellants\u2019 objections to influencing pupils through the use of pictures , songs , drama , music and stories from the Bible and religious texts , PERSON Justice PERSON found that it ought to be possible to impart neutrally to pupils the traditions and \u201c means of transmitting knowledge \u201d ( m\u00e5te \u00e5 formidle p\u00e5 ) of the various religions without running counter to international human rights law . The ORG placed emphasis on openness , insight , respect and dialogue and on the promotion of understanding and tolerance in discussion of religious and moral issues and forbade preaching . Within the framework of the ORG , the teaching of the ORG subject could be carried out without any conflict with the relevant provisions of international human rights law .","As to the appellants\u2019 argument that the school manuals , notably volumes CARDINAL , CARDINAL , DATE and CARDINAL of PERSON , amounted to preaching and were capable of influencing the pupils , Mr Justice PERSON observed that , while several definitions of problems and formulations used in PERSON could be understood as if the NORP faith provided the answer to ethical and moral questions , no further information had been submitted to ORG as to how the teaching in relation to this material had been planned and implemented .","In this context Mr Justice PERSON noted that the appellants\u2019 lawsuit and appeal to ORG had been directed against the ORG subject and its implementation generally . The arguments and evidence adduced in relation to each decision to refuse full exemption had been aimed at highlighting how the subject functioned in general . The appellants had not gone deeply into the validity of the individual decision . Because of the way the case had been presented , there was no ground for determining whether the teaching of the NORP children had occurred in a manner which violated the relevant human rights treaties . The case concerned the validity of the decisions refusing full exemption from the ORG subject . The appellants had not shown it to be probable that the teaching had been planned and carried out in a manner that , in accordance with these conventions , warranted exemption from all teaching of the subject in question .","Finally , Mr Justice PERSON went on to review the argument of discrimination .","\u201c Pursuant to section DATE of LAW , parents must send written notification in order for their child to be exempted from parts of the instruction at the individual school . Even if applications for exemption are most likely to concern parts of the GPE subject , a limited right to exemption applies to all subjects and activities . The LAW does not stipulate that grounds must be given for the application . Practice as regards requiring grounds has varied to date .","The ORG has argued that instruction in primary and lower secondary schools is to a considerable extent divided up into topics that cut across subject boundaries . In so far as parts of the ORG subject are integrated with other subjects , full exemption from instruction in the ORG subject will not be sufficient . It is also the view of the ORG that the ORG subject covers many topics which do not give grounds for exemption , pursuant either to the conventions or to section CARDINAL - CARDINAL(CARDINAL ) . The exemption system is designed and practised in such a way that the content of the instruction is the decisive factor . In the ORG \u2019s view , therefore , the prohibition against discrimination imposed by conventions can not apply to requirements regarding the provision of grounds for applications for exemption .","The ORG has explained the requirement as regards grounds and the guidelines for exemption in CARDINAL circulars . In Circular F-CARDINAL - CARDINAL dated DATE , page CARDINAL , the ORG stated :","\u2018 When parents request an exemption , written notification to this effect shall be sent to the school . The notification must contain grounds supporting what they perceive to be the practice of another religion or adherence to another philosophy of life in the instruction .","If the parents apply for an exemption from parts of the instruction which they perceive to be the practice of another religion or adherence to another philosophy of life , the pupils shall be granted exemption after the parents have explained what it is they consider to have such an effect in the instruction . Parents whose notification to the school regarding exemption is not upheld are entitled to appeal against the municipal administrative decision to ORG in the county concerned . The appeal shall be sent through the school , which is thereby given the opportunity to reverse its administrative decision.\u2019","The Ministry enlarged on the requirement of grounds in Circular F-CARDINAL - CARDINAL dated DATE , page CARDINAL :","\u2018 The ORG \u2019s basic rule is that when parents apply for an exemption from activities that are clearly religious , exemption ( partial exemption ) shall be granted . In such cases , the parents are not required to give any grounds . In the case of applications for exemption from activities that are not clearly religious , more must be required as regards the GPE grounds . Such cases are not covered by the main rule as to what exemptions may be applied for . Moreover , the travaux pr\u00e9paratoires make provision for an assessment of whether there are reasonable grounds on which to request an exemption . Reference is made to Recommendation no . CARDINAL ( DATE ) to the Lagting [ smaller division of ORG ] in which it is stated : \u201c The majority is of the opinion that pupils shall be exempted from such parts of the instruction at the individual school as , on the basis of their own religion or own philosophy of life , it is reasonable to perceive as the practice of another religion or adherence to another philosophy of life . \u201d However , account must be taken of the fact that many parents consider issues relating to faith and philosophies of life to lie within the realm of private life . The right to private life is also protected by international conventions.\u2019","The ORG then reviews examples of areas from which pupils may be exempted and states on page CARDINAL :","\u2018 The religious and philosophical convictions of parents shall be respected in the entire ORG provided by the school . This means that the rules for exemption apply to all compulsory education . In general , the issue that must be assessed by the school is whether the ORG in practice is liable to influence pupils to adopt a specific faith or philosophy of life , or may otherwise be perceived as participation in religious activity or adherence to a philosophy of life .","In specific terms , this may , for instance , have significance with regard to dance classes organised as part of ORG ; dancing with a partner is incompatible with the faith of some persons , while movement to music is acceptable . In the Arts and Handicraft subject , it will be necessary to exercise caution as regards illustrations of God and the prophets ; see the discussion of \u201c Illustrations \u2013 ban on images \u201d in the Guide to the ORG subject ( p. CARDINAL","I will add that in connection with the evaluation of the ORG subject , the Ministry emphasised the importance of changing the content , methodology and organisation of the subject to ensure that as many children and young people as possible could participate in the whole subject . The reason the Ministry nevertheless decided to maintain the limited right of exemption was to be certain that the rights of parents and freedom of religion were safeguarded satisfactorily , and that they were exercised in a way that found understanding ; see page CARDINAL , first column , of Report no . DATE ) to ORG .","I note that the right to exemption from all or parts of the compulsory Curriculum in the ORG subject in primary and lower secondary schools will result in a difference between parents in relation to the school system . Parents and pupils who wish to apply for an exemption must follow the ORG closely and apply for an exemption when they consider exemption to be necessary in order to safeguard the rights of the child and their own rights . The school initially decides whether to grant an exemption . The question is whether this difference in treatment is in pursuit of a legitimate aim and whether the aim is proportionate to the means employed .","According to the practice of ORG , as mentioned earlier , LAW , second sentence , of LAW No . CARDINAL has been interpreted as meaning that the convictions must attain a certain level of cogency , seriousness , cohesion and importance ( see the ORG \u2019s judgments in ORG and NORP v. GPE ( DATE , \u00a7 DATE , Series A no . CARDINAL ) and Valsamis [ ( cited above ] , \u00a7 CARDINAL ) ) . The statements in these judgments support the requirement by the GPE Parties that parents provide somewhat more detailed grounds when the activity from which they are applying for an exemption does not immediately appear to be practice of a specific religion or adherence to a different philosophy of life .","If an applicant must give detailed information about his or her own religion or philosophy of life , however , this may be a violation of LAW ORG regarding the right to respect for private life and possibly also LAW CARDINAL \u00a7 CARDINAL of the ORG regarding freedom of religion . I underscore that differential treatment on the ground of religion and political or other opinions is the core of the prohibition against discrimination .","As I have explained , the basic reason for introducing compulsory lessons in the ORG subject was that the government and a majority of ORG considered it to be significant for the communication of a common foundation of knowledge , values and culture in primary and lower secondary school . The importance of an open , inclusive school environment was emphasised . Implementation of compulsory primary and lower secondary education must include a right to notify a desire to exercise the right to exemption , and in any event the application must state in general terms the parts of the ORG from which exemption is desired . It is clear to me that the common curriculum in the ORG subject and the requirement of a written application to exercise the right to an exemption are means of pursuing legitimate aims , and that it is not a disproportionate measure to require that parents who wish to apply for an exemption from parts of the subject must follow the ORG and give notification when they desire an exemption . I will add that this is contingent on the school authorities taking the necessary steps to enable parents to follow the Curriculum . The common , compulsory ORG requires that parents be kept well informed about the ORG subject and the programme and methods of the Curriculum at all times , and if appropriate be informed of other activities with a religious content .","The parties have not gone into detail concerning the specific requirements regarding grounds and the grounds that are given in the various applications for exemption from the ORG subject . I shall therefore confine myself to declaring that there is no ground for assuming that a possible violation of the prohibition against discrimination in this case may have the consequence of invalidating the administrative decisions to deny full exemption from lessons in the ORG subject . \u201d","On DATE the applicant parents and children lodged their application under the Convention with the ORG .","Subsequently , on DATE , CARDINAL other sets of parents who had also been parties to the above - mentioned domestic proceedings lodged together with their respective children a communication ( no . CARDINAL ) with ORG under LAW to the DATE LAW .","On DATE the ORG rejected the respondent ORG \u2019s objection that , as CARDINAL other sets of parents had lodged a similar complaint before the ORG , \u201c the same matter \u201d was already being examined by the latter . The ORG declared the communication admissible in so far as it concerned issues raised under Articles CARDINAL , DATE and CARDINAL of the LAW . As to the merits , the ORG expressed the view that the present framework of the ORG subject , including the regime of exemptions , as it had been implemented in respect of the complainants ( \u201c authors \u201d ) , constituted a violation of LAW . The ORG reasoned as follows .","\u201c CARDINAL . The main issue before the ORG is whether the compulsory instruction of the CKREE [ ] subject in NORP schools , with only limited possibility of exemption , violates the ORG right to freedom of thought , conscience and religion under LAW and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions , pursuant to LAW , paragraph CARDINAL . The scope of Article CARDINAL covers not only protection of traditional religions , but also philosophies of life , such as those held by the authors . Instruction in religion and ethics may in the ORG \u2019s view be in compliance with LAW , if carried out under the terms expressed in the ORG \u2019s General Comment No . CARDINAL on LAW \u2018 [ A]rticle CARDINAL permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way\u2019 , and \u2018 public education that includes instruction in a particular religion or belief is inconsistent with Article CARDINAL , paragraph CARDINAL , unless provision is made for non - discriminatory exemptions or alternatives that would accommodate the wishes of parents or GPE . ORG also recalls its Views in PERSON . v. GPE , where it concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion . It is within this legal context that the ORG will examine the claim .","Firstly , the ORG will examine the question of whether or not the instruction of the ORG subject is imparted in a neutral and objective way . On this issue , LAW , section DATE , stipulates that : \u2018 Teaching on the subject shall not involve preaching . Teachers of ORG and Religious and Ethical Education shall take as their point of departure the object clause of the primary and lower secondary school laid down in section CARDINAL - CARDINAL , and present NORP , other religions and philosophies of life on the basis of their distinctive characteristics . Teaching of the different topics shall be founded on the same educational PERSON In the object clause in question it is prescribed that the object of primary and lower secondary education shall be \u2018 in agreement and cooperation with the home , to help to give pupils a NORP and moral PERSON . Some of the travaux pr\u00e9paratoires of the LAW referred to above make it clear that the subject gives priority to tenets of NORP over other religions and philosophies of life . In that context , ORG concluded , in its majority , that : the tuition was not neutral in value , and that the main emphasis of the subject was instruction on NORP . ORG acknowledges that the subject has elements that may be perceived as being of a religious nature , these being the activities exemption from which is granted without the parents having to give reasons . Indeed , at least some of the activities in question involve , on their face , not just education in religious knowledge , but the actual practice of a particular religion ( see para . CARDINAL ) . It also transpires from the research results invoked by the authors , and from their personal experience , that the subject has elements that are not perceived by them as being imparted in a neutral and objective way . The ORG concludes that the teaching of ORG can not be said to meet the requirement of being delivered in a neutral and objective way , unless the system of exemption in fact leads to a situation where the teaching provided to those children and families opting for such exemption will be neutral and objective .","The second question to be examined thus is whether the partial - exemption arrangements and other avenues provide \u2018 for non - discriminatory exemptions or alternatives that would accommodate the wishes of parents or GPE . ORG notes the ORG contention that the partial - exemption arrangements do not satisfy their needs , since teaching of the ORG subject leans too heavily towards religious instruction , and that partial exemption is impossible to implement in practice . Furthermore , the ORG notes that the NORP LAW provides that \u2018 on the basis of written notification from parents , pupils shall be exempted from attending those parts of the teaching at the individual school that they , on the basis of their own religion or philosophy of life , perceive as being the practice of another religion or adherence to another philosophy of life\u2019 .","The ORG notes that the existing normative framework related to the teaching of the ORG subject contains internal tensions or even contradictions . On the one hand , the LAW and the object clause in LAW contain a clear preference for NORP as compared to the role of other religions and worldviews in the educational system . On the other hand , the specific clause on exemptions in section CARDINAL of LAW is formulated in a way that in theory appears to give a full right of exemption from any part of the ORG subject that individual pupils or parents perceive as being the practice of another religion or adherence to another philosophy of life . If this clause could be implemented in a way that addresses the preference reflected in the LAW and the object clause of LAW , this could arguably be considered as complying with LAW .","The ORG considers , however , that even in the abstract , the present system of partial exemption imposes a considerable burden on persons in the position of the authors , in so far as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature , as well as with other aspects , with a view to determining which of the other aspects they may feel a need to seek DATE and justify \u2013 exemption from . Nor would it be implausible to expect that such persons would be deterred from exercising that right , in so far as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme . Indeed as the experience of the authors demonstrates , the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions . In this respect , the ORG notes that the ORG subject combines education on religious knowledge with practising a particular religious belief , e.g. learning by heart of prayers , singing religious hymns or attendance at religious services ( para . CARDINAL ) . While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form , the ORG scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable .","In the ORG \u2019s view , the difficulties encountered by the authors , in particular the fact that PERSON and PERSON had to recite religious texts in the context of a DATE celebration although they were enrolled in the exemption scheme , as well as the loyalty conflicts experienced by the children , amply illustrate these difficulties . Furthermore , the requirement to give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas . In the ORG \u2019s view , the present framework of ORG , including the current regime of exemptions , as it has been implemented in respect of the authors , constitutes a violation of LAW , paragraph CARDINAL , of the LAW in their respect . \u201d","In view of this finding , the ORG was of the opinion that no additional issue arose under other parts of LAW and CARDINAL of the LAW . It gave the respondent ORG DATE within which to provide \u201c information about the measures taken to give effect to the ORG \u2019s Views \u201d .","In the light of ORG \u201c Views \u201d , the NORP government decided to take measures to modify the ORG subject , and notably to propose changes to LAW and the Curriculum . According to Circular F-CARDINAL - CARDINAL , this included the following elements .","( i ) Deleting in section DATE ) the reference to the NORP object clause in CARDINAL .","( ii ) Giving the various religions and philosophies of life the same qualitative description in the aims of the subject , while maintaining the current proportions of various religions and philosophies of life in the central teaching material .","( iii ) Making the provision on partial exemption in current section DATE ) the subject of a separate provision , ensuring that the exemption arrangement take sufficient account of the GPE rights and the need to protect minorities ; simplifying the provisions on applications for exemption ; specifying in the LAW the obligation of schools to provide information and circulating information to schools about the practice of the exemption arrangement .","( iv ) Drawing up a new curriculum making a clear division between those elements that could be viewed as the practice of religions and those elements that could not , while maintaining the distribution between the different parts of the subject .","( v ) PERSON the choice of working methods in the introduction to the Curriculum and in the guidelines for the subject , in order to limit the possibility that parts of the teaching could be experienced as the practice of a religion .","Varied and engaging working methods should contribute to the dissemination of all aspects of the subject . It was emphasised that working methods that could be perceived as being close to the practice of a religion required special care on the part of teachers , including the provision of adapted teaching .","( vi ) The proposed changes would be implemented from DATE . The introduction of the measures from DATE generated the need for strengthening the skills and competence of the teachers . The government would commence the work of developing skills and competence as soon as a new curriculum had been finalised .","( vii ) A high degree of flexibility should be displayed in relation to GPE wishes for adapted teaching for their child \/ children . If necessary , the option of full exemption on a temporary basis should be available for those parents who so wished pending implementation of the proposed permanent arrangements .","On the basis of the government \u2019s decision , the ORG started reviewing the necessary changes . Following proposals by ORG on DATE , endorsed by the government on DATE ( Ot.prp.nr.CARDINAL ( DATE ) ) , on DATE ORG adopted certain amendments and additions to LAW DATE which came into force with immediate effect . As a result , a few adjustments were made to section DATE ) ( notably , the word \u201c faith \u201d was replaced by \u201c understanding of NORP \u201d ; the requirement of thoroughness was extended to knowledge of other NORP communities ) and the reference in section DATE ) to the object clause in section CARDINAL - CARDINAL was deleted ( see paragraph CARDINAL above ) . Moreover , the provisions on partial exemption in section CARDINAL ) were moved to a new and separate section CARDINAL - CARDINALA , with some clarifying additions and changes . This included , inter alia , replacing the expression \u201c religious activities \u201d ( in former section DATE ) ) with the word \u201c activities \u201d and extending the ground for partial exemption to cover also activities that the parents , from the point of view of their own religion or philosophy of life , perceived as being offensive or insulting ( in addition to those that they perceived as amounting to the practice of another religion or adherence to another philosophy of life ) .","The relevant provisions of LAW DATE are cited above .","The requirement for parents to give reasons for an application for a partial exemption is described in the citations from Circulars F-CARDINAL - CARDINAL and ORG , reproduced in ORG judgment in paragraph CARDINAL above . The latter circular also contained the following passages , which are of relevance for the present case .","\u201c CARDINAL . Solution : differentiated teaching and local adjustment of the Curriculum","Adjusted teaching and local work on the ORG as an underlying principle","Section CARDINAL(CARDINAL ) of LAW provides that a school that receives notification concerning an exemption shall as far as possible , and especially at the primary - school level , seek solutions by providing for \u2018 differentiated teaching within the Curriculum\u2019 .","The differentiated teaching mentioned in the LAW is closely related to the adaptation of teaching principle that is generally emphasised in ORG [ PERSON , ORG ] and embodied in LAW . In the principles and guidelines , importance is attached to the principles of community and adjustment within the unified school system framework . Formulations there include the following :","Individual adjustment is necessary to ensure that equivalent provision is made for all pupils . For this purpose , all aspects of the school course \u2013 syllabus , working methods , organisation and teaching aids \u2013 must be adjusted in accordance with the pupils\u2019 capabilities .","It is further stated that this opens up opportunities for different treatment and depth of study of the syllabus , and for variations in kinds of material , difficulty , quantity , speed and progression ( see LCARDINAL\/LCARDINALS ) .","...","Differentiation within the ORG syllabus \u2013 differentiation of activities , not of knowledge","According to the statute , a school that receives notification concerning an exemption shall seek solutions in which provision is made for differentiated teaching within the ORG . The municipal obligation to provide differentiated teaching applies as extensively as possible and particularly at the primary - school stage . The reasons for the statute state that the differentiated teaching shall be provided according to the same curriculum , and is not to be differentiation of knowledge but differentiation of activities . Since there is no exemption from knowledge of the subject , pupils with an exemption shall receive instruction within the framework of the curriculum .","In cases to which partial exemption applies , the alternative is not another subject or another curriculum , but other activities and other ways of working with the ORG syllabus . The school must convey the knowledge in question to the pupils by means of a different methodological approach . Exemption can nevertheless be granted from certain main topics which entail specific activities . An example is the main topic in which pupils are required to learn the CARDINAL Commandments by heart ( NORP faith and ethics , sixth grade ) . One can not , however , be exempted from knowing about the CARDINAL Commandments .","The differentiated course of instruction must have regard for the pupils\u2019 religious or philosophical background , and help as far as possible to ensure that all pupils have worked with the same areas of knowledge in the grade in question , but using adjusted working methods .","How great the need for differentiation is depends locally on","\u2013 which religious or philosophical groups the parents belong to , and","\u2013 what kinds of activity they request exemption from .","...","Differentiation in encounters with specific activities","The Guide to the ORG subject contains an introduction to ways of working with the subject , and also deals with the questions discussed below . Some of the questions are dealt with more exhaustively here however . See also the concrete examples for DATE given in the guide .","We give examples below of how to work with various activities , and take up other questions that may arise :","Prayers , creed , and other important religious texts","Some activities \u2013 such as learning by heart and reciting creeds , commandments and prayers ( LSCARDINAL , pp . CARDINAL and FAC , and LCARDINALS , pp . CARDINAL - CARDINAL ) may be perceived by some parents and guardians as the exercise of and\/or adherence to a particular religion . When notification is given concerning an exemption from such activities , the school will offer differentiated instruction to enable the pupil to work with that kind of material in a different way .","If the parents find this satisfactory , they can choose to allow their children to be present when prayers or creeds from other religions are recited , provided the children are helped to maintain the necessary distance from the material and from what is taking place ( see in this connection the section above on the roles of participant and spectator ) . Such activities can also be scheduled for individual working periods and for work in groups in which different approaches to the material are adopted .","Hymn singing","While arrangements are made for pupils who belong to the NORP tradition to sing hymns and to gain insight through that activity into an important feature of their religious and cultural tradition , necessary regard must be had for pupils who do not belong to that tradition . Hymn singing can also take place outside the NORP knowledge and religious and ethical education periods , for instance in music periods . Hymns can be incorporated into song periods , when they are placed in their musical context and seen as an important part of our sung cultural heritage .","Pupils who have been granted an exemption for hymn singing must be given other ways of working with hymns , as the case may be in separate groups . They can for instance listen to a hymn and be given such assignments as what is the hymn text about ? Can you relate the content of the hymn to a particular festival , and if so , why ? Why is this hymn important within the NORP tradition ? Another possibility would be to use hymns and songs as a theme for project work , involving looking more closely at songs , hymns and music and their functions in the different religions .","See also the Guide to the ORG subject , p. CARDINAL .","Attendance at rituals \/ visits to churches or other religious assembly buildings","Some parents may wish to have their children exempted from entering a church or other centre of divine worship whatever the connection . Others will distinguish between attending a divine service or the like , and being in a church or other religious assembly building on an excursion in a teaching situation . Whatever position the parents may take , cooperation between schools and homes is of major importance whenever such visits are scheduled .","Excursions","In the fourth grade , pupils are to be made acquainted with the lay - out , fixtures and furnishing of churches and with certain important NORP symbols ( programme item : NORP festivals , religious symbols , the life of the local NORP congregation ) . Most pupils will acquire this knowledge by means of pedagogically arranged excursions to the local church . The focus is on the informative and objective aims . Information may for instance be conveyed relating to the church building , church decoration , symbols , and the functions of various objects .","Some parents \/ guardians may request exemption for their children from participation in such excursions because a visit to a church is regarded as participation in a religious activity .","For pupils who can not visit a church , for instance , arrangements must be made for other activities and assignments at school . These should relate to the same area , so that the pupils are given access to parts of the same knowledge as they would have acquired on a church visit . Assignments can , for instance , be given relating to information booklets , if any , publications concerned with local history , or drawings , or pictures and posters showing or concerning the church in question .","See the example on p. CARDINAL of the Guide to the ORG subject .","School services","The description of the aims of the primary - school stage ( ORG , p. CARDINAL , and LCARDINALS , p. CARDINAL ) states that pupils should visit a church in the local community and attend a divine service . It is emphasised that such attendance is part of the school \u2019s teaching ( not an element of the church \u2019s baptismal preparation ) . Some pupils who belong to traditions other than the NORP tradition may seek exemption from participation , for instance in a school service and the related activities . Such pupils must be offered differentiated teaching . If the pupils are present at the service , this can be arranged by , for instance , assigning them to observe the functions of the various stages of the liturgy in relation to the whole , to note how the hymns relate to the main theme of the service , or to see whether \/ how images , colours , texts and music all help to shed light on the theme of the service .","Other parents may notify complete exemption from any attendance at a divine service . Those pupils must be made acquainted with the NORP service by means other than attendance , for instance through classroom teaching with a focus on pictures , music and texts .","What has been said here about church visits can also apply to visits to FAC , synagogues , temples or other houses of religious assembly .","Illustration and the prohibition of images","See the more detailed discussion on p. CARDINAL of the Guide to the ORG subject .","Especially challenging stories , parallel figures","See the more detailed discussion on pp . CARDINAL , DATE , DATE and CARDINAL of the Guide to the ORG subject .","Other areas","The ORG has received questions concerning other aspects of the course in NORP knowledge and religious and ethical education , including :","Dramatisations","Plays , mime and dramatisations can contribute to sympathetic insight into the teaching material and to unity among pupils . Such approaches can at the same time involve the kinds of activity from which some parents \/ guardians wish to have their children exempted . This could for instance apply to dramatisations which include holy persons , such as ORG plays .","Some may argue that it is the \u2018 acting part of the work\u2019 from which exemption is being sought . That problem can be solved by giving the pupils concerned other important tasks connected with the dramatisation . Sets have to be constructed ; lighting and sound need to be planned , set up and tested ; programmes need to be prepared . An announcer and narrators are needed . Journalists are needed to interview the active participants in the programme , to describe the activities , and to edit the class newspaper for publication after the performance . These are some of the important assignments that can be carried out by pupils who are not going to have tasks relating directly to the dramatisation . These are also means whereby they can be naturally integrated into the class community , while at the same time having the opportunity to adopt a spectator \u2019s stance with regard to the material being presented and its mode of presentation .","Other parents may say that their children are not to be included either in the dramatisation or in work connected with it . This must be respected , and other assignments must be prepared for those pupils .","...","Cooperation between schools and homes \u2013 openness and objectivity","If parents are to feel confident that teaching in the subject does not conflict with their own convictions , close cooperation between schools and homes is necessary .","On the basis of knowledge of the religious and philosophical backgrounds of parents , teachers can endeavour to plan their teaching so as to reduce the need for exemption to a minimum . A teaching plan for the subject should be drawn up as early as possible . In the plan the school should describe the offers of differentiation that are generally made in connection with different religious and philosophical backgrounds . When the plan is presented to the parents , it gives them the opportunity to consider the need , if any , for exemption from particular activities .","To request partial exemption , parents must send written notification to the school . They must state which activities in the school \u2019s teaching they perceive as the exercise of another religion or adherence to another philosophy of life . Parents should then decide whether to opt for the general offer of differentiation , if the school has made such an offer , or , in addition , if appropriate , ask for a more individually adapted offer of differentiation . By means of the dialogue established in this connection between homes and schools , the specific teaching provisions for the pupils can be determined .","If parents notify the school that they want an exemption from the distinctly religious activities , described in the reasons for the legislation as \u2018 reciting creeds or prayers , learning religious texts by heart , taking part in hymn singing , and attending rituals or divine services in different congregations\u2019 such notification will apply in general to that type of activity . A new notification for each individual religious activity is thus not necessary .","In the cooperation between schools and homes , school staff must show respect for the fact that pupils have different religious backgrounds . Special attention must be paid to this in contacts with linguistic and cultural minorities .","Administrative procedures","Municipal decisions concerning notifications of exemption are individual decisions under LAW , and can accordingly be appealed to ORG in accordance with section GPE ) of LAW . A municipality can delegate its decision - making authority to the school principal . Matters must be considered in sufficient depth before decisions are taken ; see section CARDINAL of LAW .","...","Textbooks as CARDINAL of several teaching aids in the subject","The ORG wishes to emphasise that it is the ORG that is binding on the teaching , not the textbooks . The textbooks on the subject are only one of several teaching aids that can be used to achieve the aims of the subject .","The textbooks used in compulsory school must be approved . Even if a textbook has been approved , there is a risk that it contains errors . When teachers have their attention called to possible errors in textbooks , they must look into the matter more closely so that the teaching given is correct .","Although the regulatory special review of books on the subject has been revoked ( section CARDINAL of the former textbook regulation ) , the Ministry notes that the arrangement for the review of textbooks will be continued . The textbooks will be considered by religious and philosophical communities , among others , to ensure that the religions and philosophies of life are presented in accordance with their distinguishing characteristics . \u201d","GPE \u2019s Ten - Year Compulsory Schooling Curriculum , issued by ORG in DATE ( referred to as \u201c the Curriculum \u201d ) stated :","\u201c The study of the subject is intended to give pupils a thorough insight into NORP and what the NORP view of life implies , as well as sound knowledge of other world religions and philosophies . Important items in the ORG are accordingly the classical Bible stories and other biblical material , the main lines of development and major personalities in the history of NORP , and the fundamentals of the NORP faith and NORP ethics . The subject also comprises the principal features of other living religions and philosophies of life and some of the major questions raised in philosophy and general ethics concerning the nature of man . The same pedagogical principles should be applied in the teaching of NORP and in that of the other religions and orientations . The subject must be approached openly and contribute to insight , respect and dialogue across the boundaries between faiths and philosophies , and promote understanding and tolerance in religious and moral questions . The classroom is no place for the preaching of any particular faith . The subject gives knowledge about a faith , not instruction in it . It must also sustain the individual pupil \u2019s sense of identity and cultural attachment , while at the same time furthering dialogue within a shared culture .","In order to meet different faiths and views of life with understanding , one needs to be able to place them in a context that is already familiar . The subject thus has various functions in compulsory school : to transmit a tradition , to maintain a sense of identity , and to build bridges which give insight and promote dialogue .","...","The structure of the subject","Because the subject is new and intended for all pupils , it is essential that parents and pupils of different persuasions are well acquainted with the syllabus and its contents . To reassure parents with regard to the contents of the syllabus , importance has been attached to formulating the syllabus so that parents will find it easy to see what subject matter pupils will be encountering at the various stages . \u201d","The Curriculum set out the general aims of the subject and listed the objectives and main subject elements for grades CARDINAL to CARDINAL , DATE to DATE and DATE to CARDINAL .","The general aims of the subject were described as :","\u201c \u2022 to make pupils thoroughly acquainted with the Bible and with NORP as cultural heritage and as a living source of faith , morality , and a view of life ;","\u2022 to make pupils familiar with the NORP and humanist values on which school education is based ;","\u2022 to acquaint pupils with other world religions and orientations as living sources of faith , morality , and views of life ;","\u2022 to promote understanding , respect and the capacity for dialogue between people with different views on questions of faith and ethical orientation of life ; and","\u2022 to stimulate pupils\u2019 personal growth and development . \u201d","After setting out the objectives for grades CARDINAL to CARDINAL , the ORG listed the main subject elements for these grades , each of which comprised the following titles : \u201c Biblical narrative \u201d ; \u201c Narrative material from ORG history \u201d ; \u201c NORP festivals , religious symbols , and the life of the local NORP community \u201d ; \u201c Development of moral awareness : Me and others \u201d . As to \u201c Other religious and ethical orientations \u201d it included \u201c NORP \u201d , \u201c NORP \u201d , \u201c NORP \u201d , \u201c NORP \u201d , \u201c Humanism \u201d and \u201c NORP mythology \u201d .","The ORG further set out the subject - related objectives for grades CARDINAL to CARDINAL , which included this passage :","\u201c NORP faith and ethics","Pupils should learn the fundamentals of the NORP faith and NORP ethics in the light of the positions taken in ORG .","Other religions","Pupils should study the main features of and important narratives from ORG , NORP , NORP , and NORP .","Secular orientations","Pupils should know about secular orientations , the development of the humanist tradition , and the modern humanist view of life . \u201d","The main subject elements for grades CARDINAL to CARDINAL encompassed : \u201c Bible History \u201d , \u201c Early history of NORP \u201d ( \u201c the LOC \u201d for grade CARDINAL , and \u201c the Reformation period \u201d for grade CARDINAL ) , \u201c NORP faith and ethics \u201d . As to \u201c Other religions \u201d , the subject included \u201c NORP \u201d for grade CARDINAL , \u201c Judaism \u201d for grade CARDINAL , and \u201c NORP \u201d and \u201c NORP \u201d for grade CARDINAL . In addition , grades CARDINAL to CARDINAL contained elements for \u201c Development of moral awareness : Values and choices \u201d and \u201c Secular orientations \u201d .","For grade CARDINAL it was stated , inter alia :","\u201c NORP faith and ethics","Pupils should have the opportunity to","\u2013 learn the CARDINAL Commandments by heart and be acquainted with the ethical ideals underlying the Sermon on the LOC ;","\u2013 learn something of how these fundamental ethical texts have been used in the history of NORP and how they are applied DATE . \u201d","There was no equivalent in the list of items to \u201c become acquainted with \u201d in regard to \u201c Other religions , Judaism \u201d .","After indicating the subject - related objectives for grades CARDINAL , the ORG listed the main subject elements , namely , \u201c The history of the Bible , literary genres in the Bible \u201d ; \u201c The modern history of NORP \u201d ; \u201c Various contemporary interpretations of NORP \u201d ; \u201c Religious expressions in our time \u201d ; and \u201c Philosophical interpretations of man , values and norms \u201d ."],"violated_articles":["P1"],"violated_paragraphs":["P1-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104955","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2011,"docname":"CASE OF PREDICA v. ROMANIA","importance":3,"conclusion":"Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13;Non-pecuniary damage - award","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE . He is the father of Mr PERSON ( \u201c the applicant \u2019s son \u201d ) , a NORP national who was born on DATE and who died on DATE while he was serving his prison sentence .","On DATE the applicant \u2019s son had been arrested under suspicion of having committed theft ; he was taken into custody in FAC on DATE . At that time , a medical examination was carried out , the report stating that he was clinically healthy . A copy of the results of a medical examination dated DATE , with similar conclusions , was attached to the medical file . A subsequent medical examination carried out on DATE did not note any chronic or acute illness .","On DATE the applicant \u2019s son was transferred to PERSON , and on DATE he was transferred to ORG . He was placed in cell no . CARDINAL .","On DATE , a medical examination was carried out , stating that the applicant \u2019s son was clinically healthy and that he did not show symptoms of any medical condition . The medical record showed no indication as to the existence of any illness that would require treatment .","According to the same medical file , for the duration of his stay in ORG , the applicant \u2019s son never asked for any medical assistance .","In TIME of DATE , at CARDINAL , in answer to repeated calls by CARDINAL of the prisoners , the guards went to cell no . CARDINAL , where prisoner PERSON reported that the applicant \u2019s son needed to be taken to hospital urgently , as he had lost consciousness and had started to shake .","The supervising officers transported him to the consulting room of the penitentiary . Following an examination performed at CARDINAL , it was concluded that the detainee was in a generally altered state , disoriented in time and space ; a \u201c suspicion of ( medical ) intoxication \u201d was noted by the doctor , who also recommended that he be taken to ORG urgently . There , at CARDINAL he was diagnosed with \u201c convulsions \/ symptoms of grand mal seizures \u201d ( criza comitiala ) . A consultation by a specialist was recommended .","As the condition of the patient kept deteriorating , artificial respiration was applied . The applicant \u2019s son was then transported to the nearest emergency hospital , ORG , where he was hospitalised at TIME in a coma . The diagnosis upon arrival was \u201c intercerebral haemorrhage , left temporoparietal , with panventricular inundation \u201d . The doctors noted that there were no signs of trauma on the cranium or vertebra .","The patient underwent laboratory tests , tomography and surgical and neurosurgical tests . As there was no indication that neurosurgical intervention was necessary , he was moved to another ward , where his breathing was assisted with a mechanical ventilator and his heart beat maintained by perfusion .","In spite of the medical care provided , the applicant \u2019s son never came out of the coma . His hospital medical record stated that he died on DATE , at CARDINAL ,","\u201c due to a cardiac arrest , [ while ] under artificial respiration and perfusion with adrenaline . Severe damage to the cerebral trunk . Intercerebral haemorrhage , left temporoparietal , with panventricular inundation and compressive effects on the cerebral trunk . \u201d","The medical certificate attesting the death of the applicant \u2019s son was issued on DATE . It stated that the direct cause of death was an intraventricular haemorrhage and a haemorrhage of the cerebral meninges , with serious \u201c cranial and facial trauma due to an aggression \u201d .","The preliminary necropsy report issued on DATE by ORG \u201c PERSON \u201d contained the following conclusions :","\u201c The death of PERSON was violent . It was caused by an intraventricular haemorrhage and a haemorrhage of the cerebral meninges , consequences of a trauma \u2013 cranial - cerebral and facial , with fracture of the nasal bones , facial ecchymosis and left occipital excoriation .","The necropsy revealed excoriation and echhymosis in the left thoracic and pelvic areas .","The traumatic lesions could have been produced by a blow with a solid object to the facial area , followed by falling and hitting a hard surface , with impact to the occiput and the left hemicorp .","The traumatic lesions could have been inflicted DATE prior to DATE of hospitalisation .","There is a direct causal link between the cerebral traumatic lesions and the death of PERSON . \u201d","The final medical report issued on DATE confirmed the preliminary observations , stating in addition that the traumatic injuries could have been inflicted \u201c DATE prior to DATE of hospitalisation on DATE \u201d and concluded that \u201c the cerebral lesions necessitated medical care , to be provided immediately \u201d .","On DATE the prosecutor requested the forensic expert from ORG to answer , on the basis of statements given by the victim \u2019s cellmates describing the incident on TIME of CARDINALOctober CARDINAL , whether \u201c it was possible that during a seizure , the victim could have bashed against various objects around him and thus self inflicted all the injuries detected at autopsy ( including the facial lesions ) \u201d . The supplementary medical report issued stated that , \u201c considering the morphology and the topography of the traumatic lesions , it could not be excluded that all the injuries were sustained in the same context \u2013 by falling and hitting a hard surface , DATE before the date of death , possibly by hitting against a metal bed in the course of a grand mal seizure of epileptic aetiology , as it transpired from the investigation data forwarded by the prosecutor \u201d . No deficiencies in the medical care provided to the victim prior to his death were detected .","The applicant alleged that he had last seen his son on DATE , when the latter had attended a hearing before ORG and ORG . At that time , he had borne no visible signs of violence . Before his incarceration and upon his transfer to ORG , he had been healthy , as the medical examinations carried out in the penitentiary also confirmed .","The applicant was informed about his son \u2019s death on DATE ; he , his wife and other son were allowed to take the body from ORG on DATE . According to the applicant , none of the family members could recognise the body , as the face was disfigured , the hair had been shaved off , the hands bore the marks of handcuffs and the left hand had a lesion in the handcuffed area . The identity of the deceased was allegedly confirmed based on a particular mark on the left hand .","On DATE , ORG received a phone call from G.I. , an officer at ORG , informing it of the death of the detainee and asking the competent authority to establish the cause and the circumstances of his death .","A preliminary inquiry was carried out with respect to alleged criminal acts perpetrated by the CARDINAL penitentiary guards charged with the supervision of the detainees .","The military prosecutor in charge questioned the officers that had been on duty while the applicant \u2019s son was detained at ORG , in order to establish whether there had been any incidents between the detainee and his cellmates and whether there had been any incidents when force or other immobilizing methods were used with respect to the detainee . The guards reported that no incidents had occurred in cell no . CARDINAL and that they had not noticed any injuries on the detainee \u2019s face . Similar statements concerning the lack of any incidents in their cell were given by some of the applicant \u2019s son \u2019s cellmates .","CARDINAL of the cellmates , ORG , stated in his deposition given before the military prosecutor on DATE , that he had heard that PERSON had been beaten by \u201c mascati \u201d ( masked special intervention officers ) when he had returned from a visit or from the court because he had spoken disrespectfully to them .","On DATE , the military prosecutor decided not to indict the guards , as there were no suspicious circumstances regarding the applicant \u2019s son \u2019s death . The case was referred to a civilian prosecutor for a further investigation to be carried out with respect to his cellmates ( see paragraphs CARDINAL below ) . The decision was confirmed by the hierarchically superior prosecutor on CARDINAL DATE .","The decision was contested by the applicant before ORG of GPE . On DATE , the complaints were dismissed as inadmissible . However , that decision was quashed on DATE by ORG of GPE and the case was remitted to the first instance .","On DATE , the case was referred to the Bucharest ORG , which gave judgment on DATE , declining jurisdiction in favour of ORG .","The applicant \u2019s complaints were allowed on DATE by ORG , which ordered the case to be remitted to ORG for further investigation . The court held that the investigations had been improperly conducted throughout the proceedings .","Upon an appeal on points of law , the judgment was quashed on DATE by ORG , in so far as the first - instance court had not provided grounds for its decision and had not specified exactly what evidence should be added to the file . The case was consequently remitted back to the first instance .","ORG rendered judgment on DATE . Assessing the evidence before it , it held that the criminal investigation conducted has not proved to be effective within the meaning of ORG and CARDINAL of LAW . The court further allowed the applicant \u2019s claims and ordered the case to be remitted to ORG , as a further investigation needed to be carried out with respect to the criminal act of homicide as defined under section CARDINAL of LAW . The court summarised the facts for the timeframe of DATE ( day of incarceration ) to DATE , on the basis of the evidence adduced . It held that there was no proof of any altercation having occurred between the applicant \u2019s son and his cellmates during that time . In the official register of the penitentiary there was no record of any disciplinary measures having been applied to him .","The court criticised the fact that the prosecutors had discontinued the investigations in general , without making any reference to a specific criminal act , such as homicide , ill - treatment or torture \u2013 as defined respectively by sections CARDINAL , CARDINAL and CARDINAL \u2013 CARDINAL of LAW . There was no concrete information on the circumstances of the applicant \u2019s son \u2019s death or on the persons to be held responsible for it in the evidence already adduced in the case , \u201c even though his death had undoubtedly been violent \u201d .","The court also mentioned that in assessing the adduced evidence , the fact that the investigation authorities were attached to the military , while ORG had repeatedly stated that such criminal inquiries conducted by a military prosecutor could not be regarded as effective , could not be overlooked .","It further held that","\u201c None of the accused who attended , together with PERSON , the hearing before ORG and Justice on DATE was questioned , in so far as they could have been witnesses to a conflict between PERSON and the guards of the Penitentiary ( especially the accused PERSON ) .","None of the guards belonging to ORG on duty on DATE and afterwards , until DATE , was ever questioned .","The contradictory conclusions of the numerous medical reports are to be clarified by ORG \u201d .","NORP This decision was upheld on an appeal on points of law lodged by the CARDINAL incriminated penitentiary guards . On DATE ORG held that the first - instance court \u2019s reasoning was exhaustive and legally sound .","The proceedings are currently pending before the judiciary police , delegated by ORG to carry out the investigation ( see paragraphs CARDINAL , DATE below ) .","Concerning the investigation carried out with respect to the applicant \u2019s son \u2019s cellmates , the prosecutor decided on DATE to discontinue the proceedings , as there was no indication of any criminal act having been committed in the file . The hierarchically superior prosecutor , however , quashed this decision on CARDINAL May CARDINAL , indicating that a further investigation should be conducted with respect to the offences listed under section CARDINAL of LAW , namely , hitting or causing injury to a person resulting in death .","NORP The prosecutor questioned the persons who had been detained in the same room as the applicant \u2019s son , and other individuals . They declared that the applicant \u2019s son had not been attacked by other prisoners or by the prison officers . Some of them also stated that on DATE the applicant \u2019s son had had a seizure and had hurt himself while falling between the beds and that he had immediately been taken to the consulting room .","On DATE the prosecutor decided not to indict , finding that \u201c the death was the consequence of [ the applicant \u2019s son ] accidentally injuring himself during a grand mal seizure of epileptic aetiology \u201d .","The decision was upheld on DATE by the hierarchically superior prosecutor . His decision was contested by the applicant before ORG , which gave judgment on DATE .","The court quashed the prosecutor \u2019s decision not to indict , holding that it was necessary to adduce more evidence in the case , namely , the video recordings from the place of detention for the relevant period of time .","The Prosecutor \u2019s Office appealed . In a judgment given on DATE , ORG held that the prosecutor needed to establish and clarify the circumstances in which the victim had died , as there was evidence of a homicide having been committed . To that end , the prosecutor was ordered to produce and assess certain pieces of evidence , namely , to identify and watch all video recordings from the hallways of the penitentiary and from the victim \u2019s cell ; to identify and question as a witness PERSON and a certain PERSON ( mentioned in the ORG report on PERSON death , see paragraph CARDINAL below ) ; to identify other medical documents regarding the victim \u2019s state of health , prior and subsequent to incarceration .","The case was remitted to the prosecutor for further investigation .","On DATE , the prosecutor initiated the criminal investigation in rem with respect to the offences listed under section CARDINAL of LAW .","By CARDINAL consecutive decisions of CARDINAL DATE and DATE the prosecutor decided to delegate the competent police officers to conduct the criminal investigation in conformity with the courts\u2019 requirements , as stated in their judgments of DATE and DATE ( see paragraphs DATE and DATE above ) . He also concluded that at the time of the impugned events , ORG had not had a video surveillance system in place .","The prosecutor also mentioned the fact that ORG had validated the autopsy report of DATE , adding that :","\u201c [ ... ] the trauma could have been produced by hitting with or against ... a hard surface ( active blows to the facial area followed by DATE with cranial impact , the fatal lesions having been caused by the counter blow ) , with the following amendments : considering the type of the traumatic lesions , their morphology and their layout , including on an anterior and posterior plan , the possibility that they could have been sustained solely as the result of a fall during an epileptic seizure can be excluded ; the other trauma could have been produced by hitting with or against ... hard objects , in the same context as the fatal injuries to the cephalic extremity .","No deficiencies in the provision of medical care have been detected . \u201d","While delegating the judiciary police to carry out the criminal investigation , the prosecutor also decided that the case should be registered in the archives of ORG , under \u201c criminal cases with unidentified perpetrators \u201d .","With the exception of the proceedings lodged by him before the domestic courts contesting the ORG decisions not to indict , the applicant was not involved in the investigation and alleged that he was hence forced to go to considerable lengths to obtain any relevant information regarding the progress of the proceedings .","The criminal investigation is still pending .","In the report of CARDINAL March CARDINAL named \u201c Death in suspicious circumstances of PERSON , ORG summarily presented the circumstances of the applicant \u2019s son \u2019s death while in custody . The report also included the statements given to representatives of the NGO by the director of the ORG and by ORG , an alleged acquaintance of PERSON .","The relevant parts of this report read as follows :","\u201c PERSON , born on CARDINAL DATE , was arrested on DATE and sentenced to a prison term of DATE for stealing car radios and spare wheels [ ... ]","According to information from PERSON , PERSON \u2019s father , on DATE at around CARDINAL.CARDINALam CARDINAL police officers from LAW came to his home and asked him to go urgently to ORG . At ORG he was told by the doctor that his son had died and that his body was at ORG . He asked the doctor how it had happened and she reportedly replied that PERSON had slipped and had a brain concussion [ ... ]","On DATE at around CARDINAL.CARDINALam PERSON went to ORG ( Institutul de Medicin\u0103 Legal\u0103 \u2013 IML ) to inquire about the cause of death of his son and was told that his son \u2019s body had not yet arrived . On DATE Ion Predic\u0103 returned to the hospital but was unable to obtain any information about the cause of death of his son . At ORG he was told that this information was confidential because PERSON had died in detention . Together with his sons , PERSON went back to IML where the forensic doctor reportedly told them that on his son \u2019s body there had been signs of injuries suffered as a result of some violent act . [ ... ]","On DATE a representative of ORG visited ORG and spoke to the director . [ ... ] When questioned whether PERSON hair had been shaved off as a disciplinary punishment , the director denied that such punishment is practical in the penitentiary . According to the director , his hair had been shaved in preparation for a brain scan at ORG . When the ORG representative questioned the director why the family had not been notified that PERSON had been hospitalized , her reply was that there is no legal obligation to notify them in such circumstances . Their only duty is to provide the medical treatment . [ ... ]","ORG representative also spoke to ORG who was arrested together with PERSON . They were initially held at PERSON and then in PERSON . [ ... ] . He is sure that PERSON was beaten by the special intervention unit in ORG after the hearing in ORG . The special intervention unit DATE also referred to as the masked unit \u2013 reportedly raids cells of detainees and beats anyone who complains . After the hearing on DATE PERSON had been playing in the waiting room with a piece of rope when CARDINAL masked officers handcuffed him and held him by the arms and the neck . He was then returned to prison where he was taken to the barber and had his hair shaved off . At the time of the interview in DATE , ORG hair was very short . This is reportedly a usual punishment [ ... ] \u201d","In a letter of DATE sent to ORG in his own case , PERSON , a detainee at ORG and applicant before the ORG in application no . CARDINAL\/CARDINAL , described what happened \u2013 to his knowledge \u2013 in DATE in the ORG , as follows :","\u201c In DATE in this penitentiary , the detainee PERSON was brutally beaten and killed [ ... ] by the special intervention forces ( masca\u0163i ) , who are criminals , beasts with human faces [ ... ] the following witnesses can confirm what I have just stated : ORG , GPE , GPE , PERSON , PERSON All these witnesses are , together with PERSON , parties in the same criminal proceedings \u201d .","The parties were invited to submit comments with regard to this statement .","In their observations on the merits , the Government expressed their view that the statement could not be included in the present file , in so far as the applicant had never mentioned G.I. or put him forward as a potential witness to be heard in the domestic trial .","Subsequently , in their letter of CARDINAL DATE , the Government informed the ORG that the statement had been sent to ORG responsible for the criminal investigation , in so far as the circumstances revealed therein should be taken into consideration .","The applicant considered that the statement should be included in the present file , as it was \u201c a protest statement sent to the ORG \u201d , seen by PERSON as the only authority able to help the victim \u2019s family . In reply to the Government \u2019s argument , the applicant held that he could not have known the names of detainees who had information on his son \u2019s death , and thus had not been able to put their names forward as witnesses ; moreover , the identification of potential witnesses was not his duty , but primarily the duty of the ORG .","Bearing in mind the particular circumstances in which the impugned statement was given and submitted by ORG sees no valid reason why it should not be included in the present file and considered together with all the other documents in the assessment of the present case .","Romanian Criminal Code , in its relevant parts , reads as follows :","Homicide shall be punished by detention from DATE and the loss of certain rights .","Should CARDINAL of the acts in sections CARDINAL - CARDINAL ( hitting or injuring ) result in the victim \u2019s death , the penalty shall be imprisonment from DATE .","Subjection to ill - treatment of a person being detained , in detention or in the execution of a security or correctional measure , shall be punished by imprisonment from DATE .","( CARDINAL ) An act deliberately causing a person pain or intense suffering , either physically or mentally , in order to obtain from that person or from a third party information or confessions , to punish him \/ her for an act committed by him \/ her or a third party or that he \/ she or a third party is suspected of having committed , to intimidate or exercise pressure on him \/ her or on a third party , or for any other reason based on a form of discrimination , regardless of its nature , when such pain or suffering is applied by an agent of public authority or by any other person acting in official capacity or upon instigation or with the express or tacit consent of such persons shall be punished by imprisonment from DATE .","( CARDINAL ) If the act in para . ( CARDINAL ) results in any of the consequences in CARDINAL or section CARDINAL , the penalty shall be imprisonment from DATE .","( CARDINAL ) Torture that results in the victim \u2019s death shall be punished by life imprisonment or by imprisonment from DATE .","( CARDINAL ) An attempt to commit the offences in the present section is punishable .","( CARDINAL ) No exceptional circumstance , whatever its nature may be , regardless of whether it is a state of war or the threat of war , internal political instability or any other exceptional state , can be invoked to justify torture ; the order of the law or command of legitimate authority can not be invoked either .","( CARDINAL ) The acts in para.(CARDINAL ) shall not constitute offences of torture if the pain or suffering are the exclusive result of legal sanctions and are inherent to these sanctions or caused by them . \u201d","The provisions of GPE prescribing civil actions lodged within criminal proceedings and the procedure for contesting a prosecutor \u2019s decision not to indict are summarized in the case of LAW GPE ( no . CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":["13","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94840","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF PORUBOVA v. RUSSIA","importance":3,"conclusion":"No violation of Art. 6-1;Violation of Art. 10","judges":"Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE . At the material time she was a journalist and the editor - in - chief of the newspaper ORG ( \u201c ORG \u201d is a NORP abbreviation meaning \u201c For Official Use Only \u201d ) .","NORP In DATE the applicant 's newspaper published in the same issue several items concerning the large - scale misappropriation of budgetary funds allegedly committed by PERSON , the head of ORG , for the benefit of PERSON , an employee of the GPE representative office of GPE .","The first article , entitled \u201c NORP scandal in the White House \u201d ( \u201c \u0413\u0435\u0439-\u0441\u043a\u0430\u043d\u0434\u0430\u043b \u0432 ORG \u0434\u043e\u043c\u0435 GPE \u201d ) , appeared under the name of \u201c PERSON \u201d . It opened with the following passage :","\u201c Once upon a time there lived the head of ORG Mr V. He had everything : his position , high esteem and respect . And also the governor 's love .","But ORG fell in love ... not with the governor or with his work , but with DATE employee of the region 's representative office in GPE , PERSON","How does CARDINAL become a homosexual ? Where does this \u201c love \u201d come from ?","We are simple unsophisticated people ... And we can not imagine the scene that took place between them in the sumptuous building of the region 's representative office in GPE ... Rumour has it that the governor , on having learnt certain details , was furious ... and even fired PERSON from his position .","But love , as we know , can overcome any obstacle . It finds not only a time , but also a place . \u201d","The article further asserted that , under the terms of an order signed by PERSON in DATE , the regional railway company had extinguished its outstanding regional tax liability by purchasing a CARDINAL - room flat in GPE :","\u201c The flat was bought in GPE at the following address : CARDINAL LOC , building CARDINAL , flat no . ...","Initially the flat was even entered in the ORG 's balance sheet . However , after a while ORG made a gift of the flat ... No , please do not think that he gave it to PERSON ... [ He gave it ] to PERSON father . Apparently , as a ' thank - you ' for the upbringing of his son ... \u201d","The author concluded in the following manner :","\u201c It might have been a private matter if it were not for CARDINAL ' buts ' .","[ Firstly , ] CARDINAL public figures , rather than private individuals , were linked together by Shakespearean passions in this story . In the instant case : the head of the GPE regional government , ORG , and a member of the regional parliament , K ...","Secondly , the flat was purchased at our expense , at the expense of our budget . MONEY disappeared in DATE into thin air . To date there has been no reimbursement or sanctions on the part of the tax authorities . The [ character from a well - known NORP picaresque novel ] blushed a lot as he was stealing official property , but his like - minded accomplice PERSON never blushes .","And yet , to DATE the entire budget of the region is channelled through his hands . How can we ensure that he handles that money honestly ? \u201d","On the left - hand column of the page the newspaper reproduced the text of a letter which the deputy director of the GPE regional police had sent to the chairman of the GPE regional audit commission . The police officer informed the auditor that the police were investigating the mechanism which involved extinguishing tax liabilities by acquiring a flat in GPE , and asked the experts of the audit commission to assist by verifying the accounts of the railway company , ORG and the private company that had acted as middleman in the transactions .","The third item , at the bottom of the page , was an article entitled \u201c History of the flat on GPE [ Street ] . Embezzlement of public funds : a step - by - step guide for beginners \u201d ( \u201c ORG \u043a\u0432\u0430\u0440\u0442\u0438\u0440\u043a\u0438 \u043d\u0430 \u041e\u0440\u0448\u0430\u043d\u0441\u043a\u043e\u0439. PERSON \u0441\u0442\u0440\u0430\u0442\u0435\u0433\u0438\u044f \u0434\u043b\u044f \u043d\u0430\u0447\u0438\u043d\u0430\u044e\u0449\u0438\u0445 \u043a\u0430\u0437\u043d\u043e\u043a\u0440\u0430\u0434\u043e\u0432 \u201d ) . It described , in chronological order , the financial and real - estate transactions between the railway company and the intermediary company , as well as the orders signed by PERSON and the sale of the flat to PERSON father .","On DATE the prosecutor 's office of GPE , acting on requests from GPE and PERSON , initiated criminal proceedings against the applicant for criminal libel and insult disseminated via the media , offences under Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW .","NORP The investigator commissioned a linguistic and cultural expert examination of the articles in question . On DATE the expert came to the conclusion that they contained allegations that ORG and PERSON were homosexuals who had engaged in sexual intercourse in the representative office of GPE . The expert considered that the articles had sought to present a negative image of PERSON :","\u201c Tolerance towards the customs and mores of others is , in general , uncharacteristic of the NORP mentality , which is also evident in the attitude towards ' sexual minorities ' . The NORP popular mindset and the LANGUAGE language retain a rigidly negative , rude and discourteous attitude to people of non - traditional sexual orientation ( homosexuals and lesbians ) . \u201d","The expert noted that the author of the first publication had \u201c a preference for emotional value - judgments \u201d . The report concluded :","\u201c In this context the information on the sale and purchase of a flat in GPE at the expense of the budget becomes sensational and seeks to persuade the reader to view ORG as a dishonest manager , embezzler of public funds , and , in addition , an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful . The pragmatic aim of the articles ... is to undermine [ readers ' ] trust in PERSON and PERSON as politicians ... \u201d","In DATE counsel for the applicant privately commissioned a linguistic expert examination of the articles . The expert found that the word \u201c homosexual \u201d had no negative connotations and , therefore , could not be held to damage or undermine the honour and dignity of others . He noted that NORP society in DATE had become more tolerant towards homosexuality and a disclosure of someone 's homosexuality in the mass media was not necessarily damaging to his reputation . Counsel asked the investigator to admit the report in evidence , but her request was refused on the ground that the expert had been a linguist rather than a specialist in cultural studies and thus had not been competent to perform the examination .","On DATE and DATE the applicant was charged with criminal libel and insult disseminated via the mass media .","Following the applicant 's indictment , she and her counsel filed a number of requests . They pointed out that the indictment did not identify which information the prosecution considered untrue . As the actual scope of the investigation had been limited to the allegations about ORG 's homosexuality , the applicant insisted that its scope be extended to include the misappropriation of budgetary funds . Alternatively , if the charges were to be based exclusively on the allegations about PERSON 's and PERSON 's homosexuality , the applicant requested that a medical examination of ORG and PERSON be carried out in order to establish their sexual orientation . On CARDINAL and DATE the investigator refused all the requests . He replied in general terms that the investigation was complete and that no further interviews or expert reports were necessary .","On DATE the final bill of indictment was served on the applicant and the case was referred for trial . The applicant was charged with criminal libel and insult on account of her having disseminated the information that \u201c PERSON and PERSON [ were ] homosexuals and lovers who [ had ] engaged in a homosexual act in the building of the region 's representative office in GPE \u201d . The charges did not refer to the allegations of misappropriation of budgetary funds .","The case was referred for trial to the LOC of PERSON , which decided to conduct the trial in private . The applicant and her counsel asked for a public hearing , while the victims and the prosecution stated their objections to giving further publicity to the case . ORG maintained its decision to hear the case in private , noting that it related to the victims ' private life .","The applicant pleaded not guilty . She claimed that she had been convinced of the accuracy of the information on PERSON 's homosexuality because she knew him in person . She also requested leave to adduce in evidence certain material comprising witness statements about a same - sex relationship between PERSON and PERSON ; the court refused this request .","NORP The court examined the witnesses , who testified that the applicant had been in charge of drafting the articles and publishing and distributing the newspaper .","On DATE the ORG gave judgment . It did not make any findings as to whether the information on ORG 's and PERSON 's homosexuality was true or false . Instead , it noted their statements to the effect that the articles in question had been damaging to their reputation as politicians and public servants . Relying on the conclusions of the linguistic expert examination of DATE , ORG found as follows :","\u201c Indeed , it has been established beyond doubt that the editor - in - chief of ORG , Ya . PERSON , deliberately published ... [ the impugned articles ] which she had drafted . In these articles she stated that the Chairman of ORG , PERSON , and a member of ORG of GPE , PERSON , were homosexual lovers who had engaged in homosexual intercourse in GPE in the building of the representative office of GPE , that is to say , she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims . In an attempt to slander the victims , she arranged for the printing of CARDINAL copies of the newspaper and distributed them in LOC . The investigating authorities correctly characterised her actions as libel under LAW , i.e. , dissemination via the mass media of information known to be untrue and damaging to other persons ' honour , dignity and reputation .","In addition , PERSON related in these articles untrue information to the effect that [ ORG and PERSON ] were homosexual lovers who had engaged in homosexual intercourse in GPE in the building of the representative office of GPE , that is , she deliberately assessed the personal qualities and conduct of the victims [ in terms ] which were grossly degrading to their human dignity and which contradicted society 's prevailing approach to the treatment of individuals . Such treatment of the victims must be considered obscene and damaging to their dignity . In order to make the first issue of the newspaper appear important and sensational , she undermined the honour and dignity of the victims in the mass media . Therefore , the investigating authorities correctly characterised her actions as an offence under LAW of LAW . \u201d","The applicant was found guilty as charged and sentenced to DATE correctional work , with retention of PERCENT of her wages for the benefit of the ORG .","On DATE ORG upheld the conviction , endorsing the reasons given by the trial court .","Subsequently , the applicant was dispensed from serving her sentence on the basis of an amnesty act in respect of women and minors passed by the NORP legislature on DATE .","Article CARDINAL of the LAW of the Russian Federation guarantees freedom of ideas and expression as well as freedom of the mass media .","Article CARDINAL \u00a7 CARDINAL of LAW of GPE defines criminal libel as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person 's reputation . LAW provides that criminal libel disseminated in a public statement , a publicly displayed work of art or the mass media is punishable by a fine and\/or correctional work for a period of DATE .","Article CARDINAL \u00a7 CARDINAL of LAW defines criminal insult as undermining the honour and dignity of the victim in an obscene manner . LAW provides that criminal libel disseminated in a public statement , a publicly displayed work of art or the mass media is punishable by a fine and\/or correctional work for a period of DATE .","Article CARDINAL of the Criminal Code establishes that it is a criminal offence to collect or disseminate information about an individual 's private life without his consent or to make such information public through the media .","Article CARDINAL of the RSFSR Code of Criminal Procedure ( in force at the material time ) established that a trial could be conducted in private , in particular with a view to preventing information about intimate aspects of the parties ' lives from being disclosed ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98467","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2010,"docname":"CULAR v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant , Mr Mate \u010cular , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr T. Vuki\u010devi\u0107 , an advocate practising in ORG . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the police authorities seized , from a Mr Z.K. , CARDINAL former NORP dinars ( ORG ) that belonged to the applicant , under suspicion that the CARDINAL of them had received it as a bribe . The applicant submits that he wanted to use the money to buy QUANTITY of pickled ( metal ) sheet ( dekapirani lim ) , which he intended to use in his recently opened locksmith 's business .","On DATE the competent ORG Attorney indicted the applicant and GPE before ORG ( PERSON ) , charging them with the criminal offence of accepting a bribe . On DATE ORG discontinued the criminal proceedings , the ORG Attorney having dropped the charges against the accused . However , the sum seized was not returned to the applicant .","For that reason , on DATE , the applicant brought a civil action against the ORG in ORG . In the period DATE there were several changes to and denominations of domestic currency ( see below under Relevant domestic law ) . So , the applicant initially sought the amount of CARDINAL NORP kunas ( HRK ) together with the statutory default interest accruable since DATE .","During the proceedings , on DATE , a court - appointed financial expert prepared a report according to which , taking into account the inflation rate , the value of ORG CARDINAL in DATE was equal to the value of HRK TIME at the time that he had prepared his report .","On the basis of that report , the applicant amended his claim and sought HRK CARDINAL together with the statutory default interest accruable since DATE .","On DATE ORG ruled in part for the applicant . It held that , by seizing and not returning to the applicant ORG CARDINAL , the ORG had enriched itself without cause , and awarded him HRK CARDINAL together with the statutory default interest accruable since DATE . The remainder of the applicant 's claim , concerning the statutory default interest accrued DATE and DATE , was dismissed .","Following appeals by both parties , on DATE , ORG ( \u017dupanijski sud u GPE ) quashed the first - instance judgment and remitted the case . It held that the first - instance court had erred when it had adjusted the applicant 's claim and awarded him the contemporary value of ORG MONEY , because , under the relevant legislation , he was entitled only to the nominal amount .","In the resumed proceedings , on DATE , ORG awarded the applicant HRK CARDINAL.CARDINAL ( as the amount awarded \u2013 HRK DATE could be expressed to CARDINAL decimal places ) , together with the statutory default interest accruable since DATE . The remainder of the applicant 's claim was dismissed and he was ordered to pay the respondent HRK CARDINAL for the costs of the proceedings . In the applicant 's submission , the sum he was awarded , including the accrued statutory default interest , was HRK CARDINAL .","On DATE ORG dismissed the applicant 's appeal and upheld the first - instance judgment .","On DATE the applicant lodged a constitutional complaint against the second - instance judgment alleging a violation of his constitutional right to equality before the courts .","ORG ) dismissed the applicant 's constitutional complaint on DATE and served its decision on his representative on DATE .","The LAW on the Change of the Value of the Dinar ( ORG o promjeni vrijednosti dinara , ORG of ORG no . CARDINAL\/CARDINAL ) of DATE established the new value of the NORP dinar ( ORG ) so that CARDINAL new dinar corresponded to MONEY .","By the Decision on the Introduction of the NORP Dinar as the GPE on the Territory of GPE ( ORG o uvo\u0111enju hrvatskog dinara kao sredstva pla\u0107anja na teritoriju PERSON , ORG no . CARDINAL\/CARDINAL ) , which entered into force on DATE , GPE introduced its own currency , NORP dinar ( ORG ) . The NORP dinar ( ORG ) was replaced by the NORP dinar at an exchange rate of DATE .","On DATE the Decision on the Termination of the Validity of the Decision on the Introduction of the NORP Dinar as the GPE on the Territory of GPE and on the Manner and ORG Expressed in NORP Dinars into PERSON and PERSON ( ORG o prestanku va\u017eenja ORG o uvo\u0111enju hrvatskog dinara kao sredstva pla\u0107anja na teritoriju PERSON , te o na\u010dinu i vremenu prera\u010dunavanja iznosa izra\u017eenih u hrvatskim dinarima u kune i lipe , ORG no . CARDINAL ) entered into force , introducing the NORP kuna ( HRK ) as the currency of GPE . It provided that the NORP dinar should be replaced by the NORP kuna at an exchange rate of MONEY to MONEY .","The relevant part of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL\/CARDINAL with subsequent amendments ) , which was in force at the material time , provided as follows :","ENRICHMENT WITHOUT CAUSE","\u201c ( CARDINAL ) When a part of the property of CARDINAL person passes , by any means , into the property of another person , and that transfer has no basis in a legal transaction or a statute [ that is , it is without cause ] , the beneficiary shall be bound to return that property . If restitution is not possible , he or she shall be bound to provide compensation for the value of the benefit received .","( CARDINAL ) ...","( CARDINAL ) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist . \u201d","\u201c When returning what has been received without cause , the beneficiary shall also be bound to return any profit or benefit accrued , and to pay the default interest , and to do so , if he or she was in bad faith , from DATE of the enrichment , or otherwise from DATE the request [ for the return of the property ] was made . \u201d","DEFAULT INTEREST","\u201c ( CARDINAL ) The creditor shall have a right to default interest irrespective of whether or not he sustained any damage on account of the debtor 's default .","( CARDINAL ) If the damage sustained by the creditor on account of the debtor 's default is greater than the amount received as default interest , he or she shall have a right to claim damages up to the full amount of the compensation due . \u201d","MONETARY OBLIGATIONS","\u201c When an obligation has for its object a sum of money , the debtor is bound to pay the number of monetary units in which the obligation is expressed [ that is , its nominal value ] , unless the law provides otherwise . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70681","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF TANRIKOLU AND OTHERS v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings","judges":"","text":["The applicants , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , GPE and PERSON , are NORP nationals , who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . They all live in LOC GPE .","DATE and DATE the applicants were taken into police custody in Silopi by policemen on suspicion of aiding and abetting an illegal organisation , namely the ORG .","At the end of their police custody , the applicants were brought before ORG and were subsequently placed in detention on remand .","On an unspecified date in DATE the public prosecutor at ORG filed a bill of indictment . He accused the applicants of aiding and abetting an illegal organisation , and called for them to be sentenced pursuant to LAW .","The applicants were all released pending trial .","On DATE ORG , which was composed of CARDINAL judges including a military judge , found the applicants guilty as charged and sentenced them to different terms of imprisonment , ranging DATE .","On DATE ORG , upholding ORG reasoning and assessment of evidence , dismissed the applicants ' request for appeal .","A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78425","languageisocode":"ENG","respondent":"ALB","branch":"CHAMBER","date":2006,"docname":"CASE OF BAJRAMI v. ALBANIA","importance":1,"conclusion":"Remainder inadmissible;Violation of Art. 8;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , in the municipality of PERSON ( GPE ) .","On DATE the applicant married PERSON , an NORP national . The couple had a child , GPE , who was born on DATE . In DATE the applicant and PERSON separated .","PERSON , together with her daughter , moved to her GPE house in GPE , GPE .","On DATE , using forged documents , the applicant \u2019s wife married another person without being divorced from the applicant .","It appears that on DATE the ORG annulled PERSON \u2019s second marriage . On an unspecified date she married GPE , an NORP national who resided in GPE .","During DATE that followed PERSON third marriage , she frequently travelled to GPE , leaving her daughter for long periods with her parents in PERSON , or taking her to GPE without the applicant \u2019s consent .","F.M. and her parents prohibited the applicant from having contact with his daughter . Since his separation from GPE , the applicant has been permitted to see his daughter only twice , in DATE and DATE .","On DATE the applicant brought divorce proceedings before GPE .","On DATE the applicant requested PERSON to block his daughter \u2019s passport in view of the fact that his wife was planning to take her to GPE without his consent .","Despite the applicant \u2019s requests to LOC , it appears that his wife took the child to GPE on DATE , using an official certificate in which the applicant \u2019s daughter had been registered with the name GPE , using PERSON \u2019s surname .","The applicant \u2019s wife was not present at the hearings . The latter \u2019s father testified before the court that his grandchild was in GPE with her mother , who resided there as an economic refugee .","On DATE the ORG decreed the parties\u2019 divorce . The court granted custody of the child to the applicant , having regard to the wife \u2019s lack of interest in the child \u2019s life , the instability of her residential arrangements and her long periods of separation from the child .","On DATE the divorce and custody decisions became final .","On DATE the ORG issued a writ for the enforcement of LOC judgment of DATE .","On DATE the ORG informed the applicant that it was impossible to enforce the judgment since the child was not in GPE .","On DATE and CARDINAL DATE the applicant applied to ORG to secure the return of his daughter .","On DATE , when questioned by the bailiffs , PERSON \u2019s father declared that PERSON and the child were living abroad and that he had no news of their whereabouts . The bailiffs went to PERSON \u2019s home on CARDINAL occasions DATE and DATE .","In DATE the GPE FAC informed the bailiffs that PERSON and her daughter were not living in GPE and that PERSON \u2019s father had moved to an unknown address in GPE .","In DATE ORG informed the applicant that in order to comply with the bilateral agreement between GPE and GPE he had to introduce a request and specify the precise address of the child in GPE .","The applicant sent numerous requests to the NORP authorities , ORG in GPE , the PERSON of Albania ( Avokati i Popullit ) and the PERSON of GPE , in order to obtain assistance in securing the enforcement of the custody decision .","On DATE the applicant initiated criminal proceedings with the ORG against his former wife , accusing her of child abduction .","On DATE the ORG informed the NORP PERSON that no lawsuit had been filed with it relating to the abduction of the applicant \u2019s daughter .","On DATE the applicant initiated criminal proceedings against ORG , a ORG employee . He accused her of falsifying various documents that had enabled PERSON to remove GPE from GPE , and particularly of forging documents declaring his wife to be unmarried and altering his daughter \u2019s surname .","On DATE the ORG decided to discontinue the proceedings .","On DATE the Government informed the Registry that on DATE ORG had repealed the custody judgment of DATE on the grounds that PERSON had not been duly informed of the proceedings on the custody of her daughter . The domestic court decided to send the case to LOC for a fresh examination and thus the custody proceedings are still pending .","On DATE , following the ORG \u2019s request , the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome .","The proceedings had been brought by PERSON \u2019s lawyer and held in the applicant \u2019s absence .","At present , GPE has not ratified LAW DATE on ORG .","LAW , ratified by GPE on DATE , requires GPE Parties to take measures to combat the illegal transfer and non - return of children abroad . For that purpose , GPE should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements .","This Agreement , signed on CARDINAL DATE , was ratified by GPE pursuant to Law no . CARDINAL of DATE and by GPE pursuant to PERSON no . CARDINAL . Articles CARDINAL , CARDINAL , DATE and DATE of the Agreement provide for the possibility for ORG of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other ORG in civil , family and commercial matters .","The Code of Civil Procedure , which governs , inter alia , execution of final judgments , does not contain any provisions specifically applicable to the transfer of custody of children . As a result , the general procedural rules on the execution of judgments are applicable mutatis mutandis .","In cases where a parent \u2019s refusal to comply constitutes a criminal offence , the matter should be referred to the prosecuting authorities .","Failure to abide by a final decision concerning custody of children may be punishable under LAW ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59194","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":2000,"docname":"CASE OF COEME AND OTHERS v. BELGIUM","importance":1,"conclusion":"Violation of Art. 6-1 in respect of Mr Coeme (fair hearing);Not necessary to examine Art. 6-2 and 6-3;Violation of Art. 6-1 (tribunal \"established by law\");Not necessary to examine Art. 14;Not necessary to examine the complaint of Mr Mazy, Mr Stalport, Mr Hermanus and Mr Javeau (fair hearing);No violation of Art. 6-1 (access to court);Not necessary to examine Art. 13;No violation of Art. 6-1 as regards the allegation that the Court of Cassation is not an independent and impartial tribunal;No violation of Art. 6-1 as regards the interview with Mr Stalport;No violation of Art. 6-1 (reasonable time);No violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["Mr PERSON , a NORP national born in DATE , is a former member of ORG and a former minister .","Mr PERSON , a NORP national born in DATE , is an economist .","Application no . PERSON was originally lodged by PERSON , a NORP national born in DATE , who was then the director - general of ORG . Following PERSON death on DATE his wife and his daughters announced their intention of pursuing the application in a letter of CARDINAL July DATE .","PERSON is a NORP national , born in DATE . A civil servant , he was deputy mayor of the municipality of PERSON from DATE to DATE and the chairman of ORG ( \u201c the NORP \u201d ) from DATE .","Mr PERSON , a NORP national born in DATE , is a psychologist .","In DATE Mr PERSON , an employee of the \u201c I \u201d association , was appointed as its manager . The object of the association was to carry out market research and opinion polls , and to create and develop computer software . The market research included surveys requested and paid for by third parties in both the private and public sectors ( such as the ORG , public establishments , political parties , etc . ) . The association also carried out market research and opinion polls on its own initiative . On CARDINAL DATE , while Mr PERSON was in GPE , he was dismissed for serious misconduct .","On DATE an investigating judge at ORG was instructed to conduct an investigation into some of \u201c I \u201d 's activities .","On DATE Mr PERSON was placed in pre - trial detention on his return from GPE . He was suspected of using forged invoices to overcharge \u201c I \u201d 's clients for surveys the association had undertaken to carry out on the basis of contracts with ORG , GPE and the NORP - speaking Community , among others . It was alleged that he personally had obtained a financial gain from the higher fees paid to the association in consequence and had allowed others to do so . Those alleged to have benefited from these transactions included prominent politicians .","NORP In DATE one GPE , \u201c I \u201d 's deputy manager , was also placed in pre - trial detention . He was released in DATE , as was PERSON .","On DATE Mr GPE lodged a complaint against a person or persons unknown in connection with \u201c slanderous rumours [ being spread ] about [ him ] in relation to the dismissal of Mr C. Javeau \u201d . In this complaint he gave detailed explanations CARDINAL surveys he had requested \u201c I \u201d to carry out , in his capacity as secretary - general of ORG . These surveys , CARDINAL of which had allegedly not been carried out , had been requested from \u201c I \u201d in CARDINAL contracts dated CARDINAL and CARDINAL DATE , the bills for which had been paid by ORG on DATE and CARDINAL DATE respectively .","In the context of the proceedings brought against Mr PERSON , among others , the investigating judge appointed a court expert to ascertain how the fraud had been perpetrated , who was responsible for it and who had benefited from it . The expert was instructed in particular to report on the association 's bookkeeping , to study its DATE accounts , to determine to what extent , if at all , it was engaged in activity of a commercial nature , to identify the documents whose authenticity was in doubt and to note any evidence of fraud within the limits of the prosecution submissions and any further submissions which might be made .","The expert filed a preliminary report in DATE .","At the prosecution 's request , the investigating judge commissioned further expert reports . CARDINAL of these was filed in DATE .","On DATE searches were carried out at the home of Mr GPE and the offices he occupied as deputy mayor of PERSON .","On DATE ORG ( an independent body responsible for detecting frauds or offences committed in connection with the operation of public services , supervising public works or supply contracts and verifying how public subsidies have been used ) interviewed PERSON . A report on the proceedings was drawn up ( no . CARDINAL ) . Mr GPE was questioned by ORG on a number of further occasions in DATE and DATE .","On DATE an ORG investigator questioned Mr Javeau about certain contracts entered into by \u201c I \u201d , particularly CARDINAL contracts for MONEY ( BEF ) each signed by Minister PERSON which concerned businesses in the GPE area which were geared for exports , operating as sub - contractors or receiving subsidies from ORG ( files nos . IN B\/CARDINAL , B\/CARDINAL and B\/CARDINAL ) .","He was asked in particular whether the intention had not been \u201c in effect to scrape together all available funds \u201d before Minister PERSON left LOC and whether a preliminary study had not been split into CARDINAL contracts in order to evade the scrutiny of the ORG inspector .","According to the interview record , Mr PERSON replied :","\u201c Yes , in effect , we signed those contracts at the end of Minister PERSON 's term of office in LOC as I have just explained , but I think that splitting the work CARDINAL contracts was done simply to save time . The new minister - president had to be installed and a new procedure would have led to further delays . If we had not severed the contract we would indeed have had to submit it to the ORG inspector for approval , and in the event of an unfavourable opinion we would have had to go up as far as the ORG , all for a contract that PERSON was determined to get through whatever level of the procedure it had to go to . \u201d","The final report containing the expert opinions ran to CARDINAL volumes which were filed DATE .","Reports concerning the additional expert opinions requested were filed in DATE and DATE .","On DATE the investigating judge charged Mr GPE with misappropriation , fraud , forgery , uttering forged documents and accepting bribes as a civil servant .","On DATE , as the investigation appeared to have uncovered evidence of offences committed by prominent politicians who , because of ministerial or parliamentary immunity , could not be prosecuted or investigated except under the conditions laid down in Articles CARDINAL , CARDINAL or CARDINAL of the LAW ( concerning members of ORG or ORG , ministers and members of ORG respectively ) , the investigating judge sent a copy of the file in the meantime to ORG at ORG .","ORG ( procureur g\u00e9n\u00e9ral ) at ORG decided that there did indeed appear to be evidence that offences had been committed by CARDINAL prominent politicians protected by ministerial or parliamentary immunity , including PERSON and Minister M.","On DATE Mr Stalport was interviewed , as former head of the private office of Minister PERSON , by CARDINAL civil servants belonging to the investigation branch of ORG , acting pursuant to instructions given by the investigating judge handling the proceedings against Mr PERSON . This interview mainly concerned the relations between Mr PERSON and the private office of Minister PERSON , and the working practices of the private office . It concentrated on CARDINAL contracts dated DATE between LOC and \u201c I \u201d . The verbatim record of the interview records this part of the proceedings as follows :","\u201c Q [ Question ] On DATE Mr PERSON sent the private office a draft contract for a preliminary study to be carried out among small and medium - sized businesses in the GPE area for a total fee of CARDINAL net of ORG . The study was intended to produce a list of businesses","\u2013 geared for exports ;","\u2013 operating as sub - contractors ;","\u2013 receiving subsidies from LOC .","DATE you informed PERSON that his draft contract had been transmitted to the administration for scrutiny ( appendices CARDINAL to CARDINAL of the same report ) . Did you have instructions to do that ? Did you inform yourself about the possibility of a call for tenders for the creation of such a data bank ?","A [ Answer ] I had no instruction to do that . As for finding out about calls for tenders , I left that to the administration , for the reasons I have already mentioned .","...","Q What is the procedure to be followed where the ORG inspector 's opinion on a draft contract is unfavourable ?","A I now know that it was possible to apply to the regional government for arbitration . At the time , I was unaware of that procedure and nobody told me about it . I was determined to get things moving and the opinion of the ORG inspector , L. in this case , concentrated very much on the regulations and was little concerned with financial viability . In substance , I was irked by the inflexibility and resistance to change of the ORG inspectorate . In my private office I was advised to do things differently , namely to split the contract into CARDINAL parts so that the fees would be lower than the CARDINAL threshold triggering compulsory scrutiny by the ORG inspector . I must emphasise that , despite doing things that way , I once again submitted the subdivided project to the ORG inspector , but the second time he gave a favourable opinion .","Q Here you see CARDINAL contracts signed on DATE between LOC , represented by Minister PERSON , and the \u201c I \u201d association , represented by Mr PERSON ( see appendices CARDINAL to CARDINAL of the expert report ) . Each of these contracts concerns a preliminary study to be carried out among small and medium - sized businesses in the GPE area to determine which of them would be interested in appearing in a data bank as described in the initial project . Each of these contracts concerns CARDINAL of the CARDINAL above - mentioned criteria . They represent a total cost for the preliminary study of CARDINAL net of ORG , as compared with the initial project , which would have cost CARDINAL net of ORG . Did not that reduction result from the need to split the initial project into CARDINAL , since there were CARDINAL criteria , while at the same time making sure that none of the CARDINAL contracts exceeded CARDINAL net of ORG , the threshold for intervention by the ORG inspector ?","A I wish to make it clear that I once again requested the opinion of the ORG inspectorate even though in each case the fee was below the BEF CARDINAL,CARDINAL,CARDINAL threshold . I would also point out that splitting the project into CARDINAL led to a significant reduction in cost amounting to PERCENT of the overall fees .","Q Does the fact that Mr PERSON agreed to do the same work for LAW not show that the initial contract accepted by the private office and the administration was overpriced ?","A NORP Your point about the initial price is not wrong , but the agreement on CARDINAL was probably the result of a tripartite or quadripartite agreement between the private office , the administration , the ORG inspectorate and \u201c I \u201d . That is a guess , because I ca n't remember the precise details of that transaction now .","...","Q Here is the commitment slip for CARDINAL of the contracts signed with \u201c I \u201d on DATE . This document bears the signature of ORG inspector PERSON , dated DATE , authorising the expenditure . Could Mr L. have opposed implementation of the contract , his opinion not having been sought , it would appear , before it was signed ?","A I would observe on this point that I was not obliged to submit the file to PERSON in view of the size of the fee . But as I was working more with the administration than with the private office , the administration automatically sent the ad hoc expenditure commitment slip to the ORG inspector for authorisation . In my opinion , PERSON must have received the contract before it was signed .","Q When these CARDINAL contracts were received the administration gave them CARDINAL commitment number , which was the number of CARDINAL of them ( see appendices CARDINAL and CARDINAL of the same report ) . Here is another series of documents which indicate that the administrative authorities wrongly thought they were dealing with a single contract , so much so that when \u201c I \u201d sent them CARDINAL invoices for part - payment of each of the CARDINAL contracts PERSON informed PERSON that he thought \u201c I \u201d must have made a mistake . In fact , he requested CARDINAL original copies of what he believed to be a single invoice and these copies could not bear CARDINAL different numbers ( see appendices CARDINAL of the same report ) . So PERSON could only have authorised expenditure in respect of CARDINAL commitment slip relating to a single contract ?","A Yes , that 's true . But it 's not my fault . The paperwork was entirely a matter for the administration .","...","Q As regards approval of expenditure by the ORG inspectorate in respect of contracts where the fee was lower than its intervention threshold , was it still possible for the inspector to give his views on the advisability of proceeding ?","A It is true that from the administrative - law point of view his approval does not seem to be required for the commitment of such sums . However , as far as I am concerned , and in view of my lack of technical experience of budgetary matters , I preferred on all occasions to seek the approval of the ORG inspector , seeing that for me this represented a guarantee of lawfulness from the Minister 's budgetary adviser . Therefore , if PERSON had formally refused to sign the commitment slip , I would not have gone ahead . You tell me that there is a contradiction between what I am telling you and the splitting of the original project refused by PERSON My reply is that I was advised to do things that way and that I made sure that PERSON approved the CARDINAL new contracts .","Having read through the above record , [ Mr Stalport ] stands by his statements and adds his signature to ours . \u201d","By a DATE letter of DATE ORG at ORG transmitted to the President of ORG \u201c a file disclosing , in [ his ] opinion , evidence of offences committed by PERSON ... PERSON ... , a former minister \u201d . The letter went on to say : \u201c These offences include forgery , uttering forged documents , fraud , misappropriation and corruption , committed as co - principal , as defined in LAW , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW . The acts concerned , which could be classified differently but would still constitute offences , ... were apparently committed at times when [ he held ] ministerial office ... Consequently , the provisions of LAW are applicable . \u201d","After a summary of the case , the file set out the facts and the evidence against Mr PERSON regarding offences said to have been committed DATE and DATE . The letter implicated another minister , a former minister and CARDINAL other members of parliament , although ORG considered that in respect of CARDINAL of these prosecution was probably time - barred .","ORG also mentioned a general problem concerning limitation of prosecution arising from the fact that under LAW of DATE , which had come into force on DATE , the limitation period had been extended from DATE and the change applied to \u201c all prosecutions brought before the PERSON 's entry into force which have not yet become time - barred by that date \u201d . ORG accordingly submitted the following opinion : \u201c In the present case all the offences committed before DATE , at least , are subject to limitation . In respect of the offences committed after that date the first DATE time - limit , expiring on DATE , began to run . The first procedural step causing time to begin to run again occurred in DATE , more specifically on DATE , when the information in writing was laid before the investigating judge . \u201d","ORG sent this report to the President of ORG to enable the ORG to \u201c exercise the prerogatives conferred on it by LAW . He further requested , in any event , the lifting of the parliamentary immunity of the CARDINAL ministers implicated , including PERSON and Minister PERSON","ORG , sitting on DATE in plenary session , set up a special committee composed in accordance with the proportional representation rule . The special committee took evidence at separate hearings from the investigating judge , the court expert and Mr PERSON , assisted by his lawyers .","After deliberating on DATE , the special committee made a recommendation urging ORG to commit PERSON for trial in ORG , but not the other CARDINAL ministers . With regard to Minister PERSON , it expressed the following opinion :","\u201c The special committee , rejecting all other legal argument put forward , decides to recommend that ORG should find","\u2013 that [ Minister PERSON ] should not be committed for trial in ORG in connection with contracts nos . IN BCARDINAL , CARDINAL and CARDINAL , and","\u2013 that in connection with the other offences ORG is not required to give a ruling under LAW . \u201d","On DATE this recommendation was adopted in exactly the same terms by ORG by CARDINAL votes to CARDINAL , with CARDINAL abstentions .","After ORG had reached this decision , ORG at ORG asked the President of ORG , in the interests of the proper administration of justice , to appoint a judge of the ORG , as a matter of urgency , as investigating judge , with the task of extending and continuing the investigation of the facts in close collaboration with the investigating judge dealing with the case .","By a decision of DATE the President , allowing this application , appointed Judge PERSON to investigate the case .","On CARDINAL DATE Judge PERSON sent the case file to ORG at ORG , so that the latter could make his submissions .","As a result of elections held in DATE Mr GPE sat as a member of ORG from DATE .","On DATE ORG at ORG sent a letter to ORG asking it to inform him , \u201c regard being had to the provisions of Articles CARDINAL \u00a7 CARDINAL and CARDINAL of the LAW \u201d , whether it considered it necessary \u201c to call for a stay of the proceedings brought when PERSON had not yet been invested with the functions [ of a regional councillor ] \u201d .","On DATE the ORG decided to \u201c authorise \u201d proceedings against Mr Hermanus involving investigation of the case before a criminal division of ORG and to \u201c reserve its decision regarding all other forms of proceedings until it [ had ] received fuller information , so as to be able to assess whether these [ were ] compatible with the continuance in office of the member concerned \u201d .","On DATE ORG at ORG asked the President of ORG \u201c to be so good as to request ORG to give a ruling as early as possible on the present application for the authorisation of proceedings against PERSON in ORG \u201d .","On the advice of its ORG , the ORG decided at its sitting on DATE to give the authorisation requested , considering that \u201c connection between the offences [ had been ] established by the decision of CARDINAL DATE of ORG of ORG , reached after the ORG 's decision of DATE [ and that ] the questions of connection between the offences , the proportionality between the offences and the consequences of committal for trial in ORG , and the reasonableness of the time taken to investigate the case [ were ] matters for the trial court on which ORG [ did ] not have to rule \u201d .","In the meantime ORG of ORG had decided , by an order of DATE , in respect of which the parties were not permitted to make submissions , to take the case out of the hands of the investigating judge it had been assigned to .","In addition to PERSON , the prosecuting authorities at ORG decided to prosecute before that court CARDINAL other defendants , including the other CARDINAL applicants . They considered that the investigation had revealed a system for the illegal financing of the activities of certain politicians . This involved public authorities entering into contracts for the provision of over - priced services so that the provider of the services could transfer a portion of the sums paid to third parties in order to cover the costs of the activities in question . The practices concerned consisted in negotiating and signing contracts for various opinion polls or surveys to be conducted mainly by \u201c I \u201d for the \u201c benefit \u201d of government ministries . The prices stipulated in these contracts were too high in relation to the real cost of the surveys carried out and their likely benefits . In addition , care had been taken to avoid the competitive procedure laid down for contracts entered into by the administrative authorities , which might have prevented \u201c I \u201d from winning some of these contracts , and internal checks carried out by the administrative authorities , mainly by ORG inspectors , which might have revealed the fact that some of them were over - priced . In order to do so , care had been taken to ensure that the thresholds which triggered application of the regulations and circulars relevant to public works and supply contracts and of the administrative authorities ' internal control procedures were not exceeded . The prosecuting authorities also accused some defendants ( including Mr PERSON ) of obtaining the payment of certain fees by false pretences . Lastly , they considered that although CARDINAL of the applicants , Mr Stalport and PERSON , had obtained no financial gain from these contracts , they had taken part in drawing them up .","At TIME on DATE ORG at ORG held a meeting with the lawyers of CARDINAL of the persons under investigation , including PERSON and PERSON , to inform them of the measures taken for organisation of the trial . He handed them copies of the summons he intended to serve on their clients and allegedly suggested that the case should come on in DATE . When the lawyers protested , he apparently put off the trial until DATE , despite the reservations they expressed about the shortness of the time they had been given to prepare their clients ' defence . He also allegedly told them that the trial in ORG would follow the procedure of the ordinary criminal courts .","Mr Stalport was not invited to this meeting . He explained that at that time he had not consulted a lawyer , not considering himself to be implicated .","By summonses served CARDINAL DATE the QUANTITY persons under investigation by the prosecuting authorities at ORG were summoned to appear in that court on DATE , to answer various charges relating to offences allegedly committed in connection with public supply contracts awarded to \u201c I \u201d , at a time when PERSON PERSON was a member of the government .","Mr PERSON was the only defendant to whom LAW applied ; the others were summoned , pursuant to ORG and CARDINAL of LAW , on account of the connection between the offences they stood accused of and the charges PERSON had to answer .","By a summons served on CARDINAL DATE Mr Stalport was summoned to appear in ORG to answer the charges of forgery , accepting a bribe as a civil servant and fraud committed in connection with the allocation of public contracts with which he had been associated as head of the private office of Minister PERSON , whom ORG had not committed for trial in ORG . According to the summons , he stood accused of the following offences :","\u201c A. the first ( Mr PERSON ) , second ( Mr PERSON ) , third ( PERSON ) , fourth ( Mr GPE ) , fifth ( Mr Stalport ) , sixth ( Mr H. ) , and seventh ( Mr PERSON )","being a civil servant or public officer or the accomplice of a civil servant or public officer ,","with fraudulent intent or the intention of causing harm , when making out official documents of his ministry , falsified their substance or circumstances , either by drafting contracts other than those allegedly drawn up by the parties , or by representing falsehoods as true facts , with a view to :","...","the second ( Mr PERSON ) and the fifth ( Mr Stalport )","the fifth , being head of the private office of the Minister for ORG , with the fraudulent intent of making it possible for a contract to be awarded by circumventing the rules and procedures for public contracts and more especially with the intention of evading the scrutiny of the ORG inspectors , substituted or caused to be substituted for a contract which had been turned down by the ORG inspectors CARDINAL contracts dated DATE , each for a sum lower than the threshold triggering intervention of the inspectorate , but which together had the same purpose as the CARDINAL which had been turned down , namely research on small and medium - sized businesses ;","( contracts IN B CARDINAL , B CARDINAL and B CARDINAL \u2013 see in particular : RE , vol . IV , pp . CARDINAL to DATE and annexes CARDINAL to CARDINAL ; C CARDINAL , f CARDINAL , p. CARDINAL ; C CARDINAL , f CARDINAL , pp . CARDINAL and CARDINAL ) . \u201d","On DATE the lawyers of each of the defendants requested ORG to put back the trial on the ground that it was impossible for them , in spite of all their efforts , to prepare their clients ' defence satisfactorily .","As soon as the trial began , on DATE , the President of ORG announced that the case would be investigated in accordance with the provisions of LAW .","The hearing was given over to consideration of an application for an adjournment lodged by several defendants to give them the time they needed to be able to conduct their defence in accordance with their rights . The defendants concerned lodged pleadings to that end . By an interlocutory judgment of DATE ORG ruled that these defendants had had sufficient time to prepare their arguments regarding both the criminal and the civil aspects of the case .","At the hearing on DATE Mr PERSON filed a first pleading concerning the fact that no legislation had been enacted to implement Article CARDINAL of the LAW , despite the expressly stated intention of ORG . This legislative deficiency had caused the provision originally intended to be transitional , adopted by ORG to fill the legal vacuum \u2013 namely LAW , which had later become the transitional provision of LAW to remain in force indefinitely .","He submitted in the first place that although the constitutional revision of CARDINAL DATE had replaced the words \u201c and in so doing classify the offence and determine the appropriate sentence \u201d in the transitional provision of LAW with \u201c in the cases contemplated by the criminal law and applying the penalties laid down therein \u201d , this constitutional revision could not apply retrospectively to the charges against him concerning offences committed DATE and DATE without breaching LAW .","He further submitted that , although the transitional provision gave ORG discretion to try ministers indicted by ORG as regards the question of their guilt and the penalties to be imposed , it did not confer on either ORG or ORG an analogous power concerning the procedure to be followed in such proceedings . ORG had therefore imposed the applicable procedural rules on its own authority , contrary to the principle that a tribunal 's procedure must be established by law .","At the hearing on DATE Mr PERSON filed a second pleading concerning the procedure followed by the special committee of ORG and reference of the case to ORG .","At the hearing on DATE Mr ORG filed a pleading arguing that no provision of NORP law permitted his committal for trial in ORG as court of first instance . In a separate pleading he further submitted that there was no connection between the offence he stood accused of and the offence allegedly committed by PERSON . If ORG thought otherwise , it should refer a preliminary question to ORG as to whether legal provisions which permitted a defendant who was not a minister to be committed for trial in ORG infringed the principles of equality and non - discrimination . He therefore asked ORG to rule that it did not have jurisdiction to try him in the absence of any connection or , in the alternative , to submit to ORG the following preliminary question :","\u201c In so far as ORG CARDINAL and CARDINAL of LAW have the effect of referring to ORG , sitting as a court of trial , criminal proceedings against a defendant who is not a minister , do they breach Articles CARDINAL and CARDINAL of the LAW taken together with LAW , CARDINAL and CARDINAL of the LAW ? \u201d","At the hearing on DATE Mr PERSON filed a third pleading in which he asked ORG to stay its decision on the prosecution 's submissions until ORG had answered the following preliminary question :","\u201c Does the extension of the limitation period for criminal proceedings resulting from LAW DATE containing the preliminary part of LAW , as amended by LAW , in so far as that provision applies to all prosecutions brought before its entry into force which were not yet time - barred on that date and introduces longer limitation periods , create discrimination contrary to LAW in relation to the situation of persons who are subject , on account of the date on which their offences were committed , to the limitation period laid down in the former version of the above - mentioned LAW ? \u201d","At the beginning of the hearing on CARDINAL DATE the President read out an interlocutory judgment in which ORG ruled that the case had been lawfully referred to it , that it had jurisdiction to hear it and that it was not necessary to refer to ORG the preliminary questions proposed by the defendants on the principle of connection . In the reasons for its judgment ORG held : \u201c The transitional provision in LAW ... applies both to the offences committed after the constitutional revision of CARDINAL DATE and to those committed before it \u201d . It went on to say that its discretion was limited by the obligation to follow certain procedural rules and added :","\u201c Where ORG is sitting as a court of trial it must comply , in procedural matters , with the provisions \u2013 directly applicable in NORP law \u2013 of ORG and LAW , with the LAW , with the rules of LAW , with the common provisions applicable to all criminal proceedings and with the general principles of law .","In giving ORG the power to try ministers ' in those cases where the criminal law so provides ' , the framers of the LAW were necessarily referring , as regards the form of procedure , to the CARDINAL laid down by ORG for such cases , namely LAW , in so far as that is compatible with the provisions governing procedure before ORG when it sits as a full court .","To that extent , this ORG will apply the procedural rules laid down in Book II , Part CARDINAL , LAW of LAW , entitled ' The criminal courts ' .","These rules , which are prescribed by law , accessible and foreseeable as to their effects , guarantee full exercise of the right to due process and to a fair trial .","In applying existing rules , the ORG is not usurping the function of the legislature . \u201d","ORG ruled as follows on the connection between the offences charged and on the preliminary questions on that subject :","\u201c As regards connection between the offences","The provisions of Articles CARDINAL and CARDINAL of LAW are not the expression of a general principle of law , but form a rule which is common to and applicable to all criminal proceedings .","It is not necessary for a connection to have been previously found by a court of investigation .","It is for the court of trial to which a case has been referred by a lawful committal decision or direct summons to assess for itself whether there is a connection and , accordingly , the scope of the case and its jurisdiction with regard to the connected offences .","The effect of a connection is that all joint principals and accomplices implicated in the connected offences must be tried together by the same court . It follows that where there is a connection between offences with which a minister has been charged and offences of which other defendants stand accused the jurisdiction given by LAW to ORG requires the trial of all the accused to be conducted by that court , which is highest in rank .","LAW delimits the powers of ORG when it rules on appeals on points of law .","The ORG 's powers to try ministers include , thanks to the principle of connection , the power to try other defendants for whom , in that situation , to the exclusion of any other , it is the court empowered by law to try them for the purposes of LAW .","The rules on connection , which are generally applicable , do not entail an arbitrary difference in treatment between the defendants for the purposes of LAW .","Moreover , the ORG will have to assess , when it looks into the merits of the case , whether there is a connection between the offences listed in the summons , and on this point the objection should be dealt with together with the merits .","...","As regards discrimination and the preliminary questions","The accused have alleged that the fact that they have been arraigned before the ORG pursuant to the rules on connection constitutes discrimination prohibited by ORG CARDINAL and CARDINAL of the LAW .","They have asked for preliminary questions to be submitted to ORG seeking a ruling as to whether Articles CARDINAL and CARDINAL of LAW , in so far as their effect is to refer to ORG , sitting as a court of trial , the prosecution of a defendant who is not a minister , are in breach of Articles CARDINAL and CARDINAL of the LAW . The defendant ORG raised the same question , referring to the same ORG of the LAW taken together with LAW , CARDINAL and CARDINAL thereof .","Furthermore , the defendant PERSON asked for a question to be submitted to ORG on a contradiction between Articles CARDINAL of the LAW and Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL of LAW , while the defendants GPE , GPE and PERSON asked for a question on a contradiction between the above - mentioned ORG CARDINAL and CARDINAL and Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL and CARDINAL of the Code of ORG and Articles CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , DATE and CARDINAL of the Judicial Code ' in that they laid down general principles of law permitting ORG to try them ' .","Even if deprivation of the possibility of defending oneself before the courts of investigation and of access to a second level of jurisdiction and cassation proceedings did constitute a violation of ORG CARDINAL and CARDINAL of the LAW , those ORG would be violated not by the provisions complained of in the pleadings but by LAW , which gives ORG jurisdiction to try ministers under the conditions it lays down .","LAW ( CARDINAL ) of LAW of DATE on GPE and Procedure Court provides that that court shall give a ruling , in the form of a judgment , on the merits of questions concerning contravention of Articles CARDINAL , CARDINAL and DATE of the LAW by one of the statutes , decrees or rules contemplated by LAW .","The defendants ' applications do not come within the scope of the above - mentioned LAW . \u201d","After this judgment had been delivered , CARDINAL of the defence lawyers , speaking on behalf of all the accused , said that ORG was laying down the rules of the procedure to be followed on its own authority and expressed serious reservations about compliance with LAW . He also asked whether ORG intended to ask the registrar , pursuant to LAW , to read out the CARDINAL pages in the file , explaining that , having stated that it intended to follow the practice of the criminal courts , it was not right for ORG to apply some rules but not others . ORG did not grant this request .","DATE . At the hearing on CARDINAL DATE ORG began an address presenting the facts of the case , which continued on CARDINAL DATE . At the beginning of this address he said :","\u201c I shall deal with the charges against Mr PERSON , Mr PERSON and PERSON , but in respect of these last CARDINAL defendants only in so far as the charges concerned are closely connected with those against Mr PERSON .","ORG will speak about the other charges against Mr PERSON and PERSON and those against Mr GPE . \u201d","According to Mr PERSON and PERSON , the President of ORG interrupted ORG address at CARDINAL point to remind him that the purpose of that stage of the proceedings was not for the prosecution to present its case .","On DATE ORG began to take evidence from the accused . It also heard the parties ' submissions on the subject of fixing a timetable for the further proceedings and the order in which submissions should be made . The prosecution suggested that the defence case should be heard before the prosecution 's . After deliberation , the President announced that the ORG had","\u201c fixed the order for submissions in the further proceedings as follows :","Examination of the accused ( continued )","Civil party 's submissions","Prosecution submissions","Defence submissions","Replies , if any \u201d .","On DATE Mr Stalport was examined , together with PERSON , about the offences he stood accused of .","The record of the hearing on DATE includes the following information :","\u201c At the public hearing of ORG , sitting as a full court , on DATE , in the formal hearing room , where the following members were present and sitting :","President PERSON , Vice - President ORG President PERSON , ORG , PERSON and ORG President PERSON , Judges PERSON , PERSON , GPE , FAC , Verougstraete , PERSON , PERSON , PERSON , Wa\u00fbters , ORG ; ORG Counsel Baron PERSON , ORG , Chief Registrar PERSON , assisted by PERSON and Deputy Registrar PERSON ,","...","The accused ORG stated : I was questioned for the first and last time on DATE in the context of an investigation into allegations against [ Minister ] M. I was told that I was being interviewed as a witness and that I would not have to be cross - examined in his presence . At no time did I have the opportunity to present my case . I confirm the statements I made at the time of that interview .","...","Question to Mr Stalport :","Is it true that when you received the draft contract you transmitted it without further formality to the administration for scrutiny and that when the administration gave a favourable opinion you submitted the file to the ORG inspector on CARDINAL DATE ?","Mr ORG 's reply :","Yes , the project was part of a package submitted to the administration with a total cost of LAW . It was that [ amount ] which caused the unfavourable opinion , and also in part the points of divergence between the opinions of the administration and the ORG inspectorate .","...","Question to Mr Stalport :","Why , in your opinion , notwithstanding the unfavourable opinion of the ORG inspectorate , were CARDINAL contracts signed on DATE which now form the basis of the charge against you , and which , taken together , had exactly the same purpose , although the cost of each of them was limited to LAW ?","Mr ORG 's reply :","After the refusal I asked the Minister about it . He confirmed that it was politically desirable to go ahead . I looked for a cheaper solution . DATE my colleagues submitted a new project to me .","Question to Mr PERSON :","Does that not show that the original fee of BEF CARDINAL,CARDINAL,CARDINAL was too high ?","Mr PERSON 's reply :","No , Mr Stalport has already answered that question . We altered the project .","Question to Mr Stalport :","According to the procedure in force , was the Minister not required , in the event of the ORG inspector 's refusal to approve the project , to ask the ORG Minister to arbitrate , and , should the latter 's opinion also be unfavourable , to use the possibility of bringing the matter before the ORG , which would have had the last word on the subject ?","Mr ORG 's reply","PERSON was also the ORG Minister . We wanted to launch a much more limited project and we did a preliminary study . I do not think the solution of splitting into CARDINAL was adopted to evade ORG scrutiny . If we had followed the administrative procedures the project would not have got off the ground . My job as head of the private office was to get things moving quickly . Although we did not follow the classic procedure , the project was nevertheless subjected to ORG scrutiny .","...","Question to Mr Stalport :","Who in the private office decided to disregard the ORG inspector 's unfavourable opinion and split the contract up in such a way as not to be bound by the opinion in question ?","Mr ORG 's reply :","The decision to continue was taken by the Minister , the solution consisting in a reduction of the scope of the original project . Whatever the amount committed , the ORG inspectorate had the power to supervise and give an opinion . Even though the contract was limited from the financial point of view , everything was above board .","...","Question to Mr Stalport :","You stated in substance ( p. DATE ) that you were irked by the inflexibility and resistance to change of the ORG inspectorate and that in your private office you were advised to do things differently , namely to split the contract into CARDINAL parts so that the fees would be lower than the CARDINAL threshold triggering compulsory scrutiny by the ORG inspectors , and you went on to say that despite doing things that way you had once again submitted the subdivided project to the ORG inspector , who the second time had given a favourable opinion , and that splitting the project into CARDINAL had led to a significant reduction in cost amounting to PERCENT of the overall fees . Do you stand by that assessment of your conduct ?","Mr ORG 's reply :","Yes , because the ORG inspection procedure took some time . We wanted to work quickly and we came back to another way of doing things , which nevertheless received the ORG inspectorate 's approval , but more quickly , even though supervision was maintained . I did not have much time and I had to find a solution by using a faster procedure , namely approval of the order to pay . I knew that I had to give an account of my actions to the Minister and I insisted that the ORG inspector sign each file , as was done even where this was not mandatory .","Question to Mr Stalport :","Did you know of the memo sent to PERSON , a minister of ORG of ORG on DATE by PERSON , Inspector - General at the ORG ( p. CARDINAL ) , pointing out that it was highly questionable to continue to implement the CARDINAL contracts and calling on him to block payment by the Region of all invoices even where , from the formal point of view , these had been legally drawn up ?","Mr ORG 's reply :","I found out about PERSON criticisms afterwards . I do not know whether PERSON knew of CARDINAL contract . In the allegations I think he referred to CARDINAL contracts of BEF CARDINAL . So he was aware that there were CARDINAL contracts .","In reply to the ORG 's question , Mr PERSON stated :","Splitting the contract was a means of dealing with real difficulties that had cropped up .","Question by the Principal Advocate - General :","The administration received CARDINAL contracts and made CARDINAL commitment , believing that it was dealing with CARDINAL copies of a single contract . Does Mr Stalport remember this misunderstanding , which happened with all CARDINAL contracts ?","Mr ORG 's reply :","The error would have been pointed out to me , but I had left on DATE . \u201d","On DATE Mr ORG filed a new pleading in which he argued that there was no connection between the charges against him and those against Mr GPE and that he should therefore stand trial in the appropriate place , namely ORG .","During the trial Mr GPE asked ORG to submit a preliminary question to ORG about limitation of the prosecution . In the alternative , he requested it to find that the proceedings against him were time - barred . He further submitted that there was no connection between the offences he had been charged with and those Mr PERSON stood accused of . In addition , he argued that his case had not been heard within a \u201c reasonable time \u201d . As regards the merits , he submitted that he had acted without any criminal intent .","ORG gave judgment on DATE . It decided firstly that there was a connection between the offences with which Mr PERSON had been charged and those with which the other defendants had been charged , ruling as follows :","\u201c For the purposes of Articles CARDINAL and CARDINAL of LAW , a connection is the link between CARDINAL or more offences . By its nature it requires , with a view to the proper administration of justice , and subject to the right to due process , that the cases be dealt with together and by the same court , which may thus determine whether each element of the alleged offences has been made out , and assess the admissibility of the evidence and the guilt of each of the defendants .","[ Mr PERSON ] and the [ other ] defendants have stood trial together for offences brought to light by the same investigation . These offences formed part of a system run by PERSON which placed the ' I ' association at the point of contact between the financial interests of scientific research and the personal interests of its directors and third parties . By the admission of PERSON , this system consisted in seeking to sign contracts with the public authorities for surveys to be carried out by the ' I ' association or by the [ ... ] Institute , each of these contracts being accompanied by advantages for politicians whose power of decision - making , influence or promising future were intended to ensure the effectiveness and continuity of the system .","All the offences [ Mr PERSON ] and the [ other ] defendants were charged with link in with this system in such a way that there is a connection between them which justifies application of Articles CARDINAL and CARDINAL of LAW .","Even if such application did cause in the present case all the disadvantages complained of by the defendants , it has not hindered the full exercise of their right to challenge the admissibility of the proceedings or the truth of the charges against them , to raise any argument they chose in their defence or to submit to the ORG any applications they considered useful for the trial of their case . \u201d","ORG also refused , in the following terms , to submit a preliminary question to ORG on the subject of limitation :","\u201c PERSON submitted that extension of the limitation period ' in so far as it applie[d ] to all prosecutions brought before its entry into force which were not yet time - barred on that date and introduce[d ] longer time - limits , GPE ] discrimination contrary to Articles CARDINAL of the LAW in relation to the situation of persons who [ were ] subject , on account of the date on which their offences were committed , to the limitation period laid down in the former version of LAW .","PERSON submitted that the law introducing the new limitation period applied to all prosecutions brought before its entry into force which were not yet time - barred on DATE , and that limitation of prosecution accordingly depended on the date of procedural steps causing time to begin to run again . He argued on that basis that in the present case application of Articles CARDINAL and CARDINAL of the Law of DATE had created discrimination prohibited by ORG CARDINAL and CARDINAL of the LAW .","PERSON likewise submitted that ' only the date of procedural steps causing time to begin to run again for limitation purposes determine[d ] whether the new law or the old should be applied ' .","[ Mr PERSON ] and the [ other ] defendants mentioned above requested the ORG , in their final written submissions , to refer to ORG a preliminary question concerning what they alleged to be a contradiction between Articles CARDINAL and CARDINAL of the LAW and LAW , which extended periods of limitation .","It appears from those final written submissions that the inequality of treatment they complained of results solely , according to the defendants themselves , from the date on which procedural steps in the investigation or prosecution were taken and from the effects of such steps on the running of time for the purposes of limitation , but not from the provisions of LAW DATE .","Thus , they are criticising not a distinction allegedly created by that PERSON , but the necessary effects of any application of the law on criminal procedure in the course of time .","The questions raised do not fall within the scope of LAW DATE on ORG , and there is accordingly no call to ask them . \u201d","ORG further held that the proceedings against Mr PERSON and PERSON were not time - barred , ruling in the following terms :","\u201c In the field of criminal procedure , new legislation is of immediate effect , so that it applies to all criminal proceedings brought before the date of its entry into force which are not yet time - barred on that date pursuant to the previous legislation .","Prosecution of offences not subject to limitation on DATE will become time - barred , unless the running of time has been suspended , on expiry of a period of DATE from the time of the offences , which may be extended where the case arises by a further period of DATE from any act causing time to begin to run again lawfully performed before expiry of the first DATE period .","Since limitation of prosecution consists in the extinction , in society 's interest , through the lapse of a certain length of time , of the power to prosecute a suspect , statutes of limitation do not affect the substance of the law . Where they extend the limitation period they do not aggravate the penalty applicable at the time when the offence was committed or punish an act or omission which was not punishable at the time it was committed . LAW are not applicable to them .","The ORG must take the date of the judgment as the material time for assessing once and for all whether prosecution is time - barred , and the nature of the offence is determined not according to the penalty applicable but according to the penalty imposed . From the outset , limitation of prosecution of an act which in principle constitutes an offence may be influenced by the penalty imposed . If the ORG , after declaring the offences of forgery and uttering forgeries made out , were to accept that there were extenuating circumstances , thus altering the nature of these crimes [ crimes ] and giving them the status of less serious indictable offences [ d\u00e9lits ] , the limitation period for these offences would be the CARDINAL laid down for d\u00e9lits , namely DATE .","Where a number of criminal acts are committed successively in execution of a single criminal design and thus form CARDINAL offence , that offence is only consummated , and the running of time for the purposes of limitation only begins , with regard to all of the acts concerned , when the last of them is committed , provided , however , that each previous criminal act is not separated from the later criminal act by an interval longer than the applicable limitation period , unless the running of time has been retriggered or suspended .","...","The offences for which [ Mr PERSON ] and [ Mr GPE ] have stood trial were committed :","\u2013 in the case of PERSON , DATE and DATE , the last being committed on DATE ;","...","\u2013 in the case of Mr GPE , between CARDINAL DATE and DATE , the last being committed on CARDINAL DATE ;","...","These offences , if made out , constitute execution of a single criminal design . For each of the defendants the running of time for the purposes of limitation only began , with regard to all of the offences in which they are implicated , when the last of those offences was committed , which in the present case was not separated from the others by an interval longer than the limitation period in force .","The PERSON of DATE , which raised from DATE the limitation period for the prosecution of less serious indictable offences , and consequently of crimes reclassified as such , is applicable to [ Mr PERSON ] and [ the other defendants ] since the DATE limit had not been reached when that PERSON came into force and the running of time had been validly retriggered as regards [ Mr PERSON ] and [ the other defendants ] on CARDINAL DATE by ORG report no . CARDINAL ( p. DATE ) , an investigative measure carried out during the former DATE limitation period .","...","Consequently , the original limitation period of DATE began to run :","\u2013 in the case of PERSON , on DATE ;","...","\u2013 in the case of PERSON , on DATE .","The running of time during this period was validly retriggered on DATE by ORG report no . CARDINAL .","It follows that prosecution is not time - barred in respect of any of the offences referred to in the summons . \u201d","ORG found Mr PERSON guilty of most of the offences he had been charged with and sentenced him to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL,CARDINAL , adjusted to CARDINAL . It also disqualified him from exercising any of the rights listed in LAW for a period of DATE and ordered him jointly with another defendant to pay the civil party \u2013 \u201c I \u201d \u2013 the sums of BEF CARDINAL,CARDINAL , BEF CARDINAL,CARDINAL and CARDINAL .","ORG found Mr PERSON guilty as charged and sentenced him to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL , adjusted to LAW .","ORG sentenced Mr Stalport to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL , adjusted to BEF CARDINAL , after declaring him guilty as charged on the basis of the following considerations :","\u201c On DATE the ORG inspectorate gave an unfavourable opinion ( p. DATE ) on a draft contract in which the ' I ' association undertook to carry out for ORG a preliminary study of all businesses in the GPE area ' , the total cost amounting to CARDINAL net of ORG ( p. CARDINAL , at DATE ) .","On DATE CARDINAL contracts , each for an inclusive price of CARDINAL , were signed by [ Minister ] PERSON , representing ORG , and PERSON , representing ' I ' ( p. CARDINAL at DATE ) .","In these contracts ' I ' undertook to carry out a ' preliminary study '","( a ) among small and medium - sized businesses operating as sub - contractors ( first contract ) ;","( b ) among all businesses receiving subsidies from ORG ( second contract ) ; and","( c ) among all small and medium - sized businesses geared for exports ( third contract ) .","On DATE , when these contracts were signed , they were transmitted under the Minister 's signature to the administration ( p. CARDINAL ) . On DATE the ORG inspectorate approved the commitment slip for CARDINAL of the CARDINAL contracts without making any comment ( p. DATE ) .","It is clear from a comparison of the initial draft contract with the CARDINAL new contracts that , although the scope and price of the initial contract were reduced in the CARDINAL new contracts , it was still the same concept with the same initial aim , in other words the same work .","It is apparent from the statements of ORG ( p. CARDINAL ) [ ] and PERSON ( p. CARDINAL ) [ ] that the purpose of severing the original contract was to evade the mandatory scrutiny of the ORG inspector .","The approval of the ORG inspector alluded to by ORG is the countersignature required for commitment of the expenditure , which was added on DATE , after the contract was signed , and reveals nothing about the desire for transparency alleged by the defendant ( p. CARDINAL ) .","Neither the assertion that , if the contract had not been severed , it would have been approved in any case nor the assertion that the CARDINAL contracts were submitted to the non - mandatory scrutiny of the ORG inspector can justify the artificial severance of the contract .","The fraudulent intent required for the charge to be made out need exist only in the mind of the perpetrator of the offence .","It is sufficient for co - principals to have provided necessary assistance in the commission of the offence or to have directly caused it to be committed , to have had positive knowledge of the facts constituting the main offence and to have conspired , as defined by law , to commit the offence .","With the fraudulent intent of satisfying the request of PERSON , approved by Minister PERSON , PERSON provided the necessary assistance in the commission of the offence within the time agreed . ... \u201d","ORG then found Mr Hermanus guilty as charged and sentenced him to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL , adjusted to LAW . It also disqualified him from exercising any of the rights listed in LAW for a period of DATE .","The Court of Cassation held that Mr GPE had been tried within a reasonable time , on the following grounds :","\u201c It appears from the case file","\u2013 that on DATE ORG transmitted the initial report to the GPE public prosecutor ( p. CARDINAL , at CARDINAL ) ;","\u2013 that the information in writing calling for an investigation in respect of PERSON and a person or persons as yet unidentified was lodged on DATE ( p. CARDINAL ) ;","\u2013 that numerous reports had to be compiled on account of the many interviews and investigative measures made necessary by the nature of the offences the defendants were accused of ;","\u2013 that the nature of the offences made it necessary on DATE to appoint a court expert ( p. CARDINAL ) to study and analyse CARDINAL of documents and items of computer data ; that in that connection it should be noted that the accounts of the ' I ' association and those of ORG were interconnected in such a way as to complicate the expert 's task ; that after filing a preliminary memorandum on DATE ( p. CARDINAL , at CARDINAL ) , an analysis of PERSON bank accounts on CARDINAL DATE ( p. CARDINAL , at CARDINAL ) , a memorandum replying to PERSON observations on DATE ( p. CARDINAL , at CARDINAL ) and a memorandum on the French - speaking Community 's contract no . D\/CARDINAL on DATE ( p. CARDINAL , at CARDINAL ) the expert filed the successive parts of his report on DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and CARDINAL DATE ( pp . DATE at DATE , DATE at DATE , DATE at DATE , DATE at DATE , DATE at DATE , and CARDINAL at CARDINAL ) ;","\u2013 that while the expert was compiling his report and later the investigation continued without a break , as evidenced by the records and inventories ;","\u2013 that the investigative measures taken as a result show that the interconnections between the offences made it necessary to verify the statements of the numerous persons concerned and to cross - check the evidence obtained before the prosecution could make their submissions ;","\u2013 that DATE the file was communicated to the President of ORG by ORG at ORG on account of the fact that the file appeared to contain evidence that offences had been committed by PERSON , PERSON and PERSON at a time when they held ministerial office and that the latter was still a minister on the date when the file was sent ( p. CARDINAL , at DATE ) .","At its meeting in plenary session on DATE ORG indicted PERSON and committed him for trial in ORG .","On DATE , allowing an application by ORG , the President of ORG appointed Judge PERSON as the investigating judge in the present case with the task of extending and continuing the investigation of the facts in close collaboration with Investigating Judge PERSON , who , as matters stood , remained responsible for the same offences in so far as there was evidence of offences committed by persons other than PERSON .","On DATE [ Judge PERSON ] communicated his file to ORG at ORG .","On an application made on DATE by ORG at ORG , ORG , sitting on DATE , authorised the prosecution of ORG Councillor PERSON ' by investigation of the case before a criminal division of ORG . When Investigating Judge PERSON was taken off the case by order of ORG on DATE , ORG , sitting on DATE , decided , allowing an application of CARDINAL DATE by ORG at ORG , to authorise the prosecution of PERSON in this ORG .","The summons to appear for trial on DATE was signed on CARDINAL DATE .","On account of the possible connection between the offences with which [ Mr PERSON ] and [ the other defendants ] had been charged , the case against each of them could not be dissociated from the case against the others , regard being had to procedural rules .","Accordingly , the ORG finds no delay in the prosecution of the case . ... \u201d","Mr PERSON was sentenced to DATE imprisonment , with CARDINAL of that term suspended , and a fine of BEF CARDINAL , adjusted to CARDINAL .","As a result of his conviction Mr Stalport had to resign from his position as administrator of various public limited companies under NORP law , pursuant to LAW of DATE . The decision to disqualify PERSON from exercising the rights listed in LAW deprived him of all his functions , namely the posts of regional councillor , deputy mayor , secretary - general of ORG and chairman of the SDRB .","The relevant provisions of the LAW read as follows :","\u201c Individual liberty is guaranteed . No one may be prosecuted save in the cases and under the procedure prescribed by law ... \u201d","\u201c No one may be removed against his will from the jurisdiction of the court empowered by law to try him . \u201d","\u201c No member of either ORG may be committed for trial , prosecuted by direct summons or arrested in connection with a criminal matter while ORG is in session without the authorisation of the ORG to which he belongs , except in cases where an offence is discovered while it is being committed .","...","The detention or prosecution of a member of either ORG shall be stayed throughout the session if the ORG concerned so requires . \u201d","\u201c Any member of a [ regional or community ] council shall enjoy the immunities laid down in Articles DATE and CARDINAL . \u201d","\u201c There shall be a Court of Cassation for GPE .","ORG shall not determine cases on their merits , save for the trial of ministers and members of community or regional governments . \u201d","The first paragraph of LAW of DATE ( former LAW DATE ) provided :","\u201c ORG is empowered to indict ministers and commit them for trial in ORG , which alone shall have jurisdiction to try them , sitting as a full court , save as provided by statute with regard to a civil action brought by an injured party and crimes or less serious indictable offences allegedly committed by ministers otherwise than in the performance of their official duties . \u201d","The second paragraph of LAW of DATE ( former LAW DATE ) provided :","\u201c The cases of responsibility , the penalties to be imposed on ministers and the manner of proceeding against them , either on a charge accepted by ORG or as the result of a prosecution brought by the injured parties , shall be laid down by law . \u201d","The LAW of DATE included an Article CARDINAL which provided in particular : \u201c It is necessary to make provision , in separate legislation , and as soon as possible , for the following : ... CARDINAL . the responsibility of ministers and other government agents . \u201d This Article was repealed on DATE .","DATE . The Law of DATE amending the LAW replaced LAW by a new provision which states : \u201c Ministers shall be tried only by ORG \u201d , whether for \u201c offences they have allegedly committed in the performance of their duties \u201d or for \u201c offences they have allegedly committed otherwise than in the performance of their duties for which they are tried during their term of office \u201d ( LAW ) .","The new text further provides : \u201c The procedure for the prosecution and trial of ministers shall be laid down by law \u201d ( LAW ) .","The relevant legislation is LAW of DATE governing the criminal responsibility of ministers ( and GPE DATE governing the criminal responsibility of members of community and regional councils ) . \u201c ORG alone is empowered to try a minister for offences allegedly committed in the performance of his official duties \u201d , whereas \u201c for the trial of a minister during his term of office for offences he has allegedly committed otherwise than in the performance of his duties the courts having jurisdiction shall also include ORG for the place where the offence was committed , the place where he lives or the place where he has been found \u201d ( LAW . LAW lays down the rules for the conduct of the prosecution and investigation , the procedure before ORG and the procedure for an appeal on points of law . LAW of GPE lays down CARDINAL special provisions , CARDINAL of these being LAW , which expressly provides :","\u201c Co - principals and accomplices implicated in an offence for which a minister is prosecuted and the perpetrators of connected offences must be prosecuted and tried at the same time as the minister . \u201d","Pending the enactment of a law on procedure , and in order to avoid the paralysis of the criminal justice system in cases concerning ministers during the time it would take to bring in legislation , ORG adopted in DATE a transitional provision specifying the scope of the jurisdictions of ORG and ORG .","In its original version , former LAW , which later became the transitional provision of LAW , was worded as follows :","\u201c Until such time as provision for the purpose has been made by law , ORG shall have discretion to indict a minister and ORG to try him , and in so doing classify the offence and determine the appropriate sentence . \u201d","In Volume II ( Political and administrative laws ) of the ORG survey of DATE it was argued that this provision concerned both ministers ' ordinary responsibility and a responsibility specific to their official duties , the following point being made ( nos . CARDINAL to CARDINAL , p. CARDINAL ) :","\u201c Where it is a matter of offences defined in LAW , the penalties laid down in that Code are applicable . Where , on the contrary , LAW has nothing to say about the offences concerned , on a provisional basis , pending the enactment of legislation governing the question , ORG has discretion to indict ministers and ORG to try them , and in so doing classify the offence and determine the appropriate sentence . \u201d","In his NORP address of DATE marking the opening of a new judicial session ( Journal des Tribunaux , DATE , pp . CARDINAL - CARDINAL , at CARDINAL and DATE , and pp . CARDINAL - CARDINAL , at CARDINAL ) ORG PERSON said that under the transitional provision of LAW at that time ) ministers were criminally responsible for all offences defined by the criminal law , ORG not having any discretion in the matter ( it could , at the most , add charges and penalties but not reduce ministers ' ordinary criminal responsibility in any way ) . He further observed : \u201c As regards the procedure in ORG , it would appear that in the absence of legislation the ordinary rules of criminal law should apply by analogy \u201d ( p. CARDINAL ) .","In the constitutional revision of CARDINAL DATE the transitional provision of LAW was amended to read as follows :","\u201c Until such time as provision for the purpose has been made by means of the law referred to in paragraph CARDINAL , ORG shall have discretion to indict a minister and ORG to try him in the cases contemplated by the criminal law and applying the penalties laid down therein . \u201d","NORP However , as ORG never legislated save on a temporary basis , the transitional provision remained in force until the constitutional revision of DATE ( see paragraph DATE above ) .","Various laws for the implementation of LAW have been adopted . These were temporary responses to specific circumstances .","DATE . The first of these laws was enacted after a duel in DATE between a member of ORG and ORG . Both men had used their weapons . As this conduct constituted a criminal offence , ORG at ORG expressed the intention of preferring charges . Since CARDINAL of the CARDINAL antagonists was a minister , it was for ORG to indict him and an application was made to that effect . However , ORG allowed this application only on condition that legislation was first brought in .","In the report of the special committee appointed by the ORG to consider the constitutional issues arising from this duel , PERSON made the following comments on the bill that had been tabled :","\u201c Our committee , gentlemen , was also of the opinion that ORG has jurisdiction to rule on offences committed by accomplices of a minister or connected offences which might be imputed to persons other than the minister facing charges . It referred to general legal principles .","It would not be rational , in Mr PERSON 's opinion , for ORG , which , on account of the large number of judges who sit in it , its rank in the judicial hierarchy and the solemnity of its procedure , provides defendants with more safeguards than the ordinary courts , not to have jurisdiction to rule on offences committed by accomplices and connected offences . Provision is already made for that in LAW . Where a public officer charged with an offence has accomplices who are not themselves public officers , the public officer does not follow his accomplices to ORG , they follow him to the higher court .","...","It is undoubtedly in the general interest for a minister who has committed a crime or less serious indictable offence to be handed over to the courts , because , as I observed above , no one may lay claim to impunity in GPE . But side by side with this general interest there is another public interest which is no less respectable , that of the minister 's complete freedom to manage public affairs at any particular time . ORG is the judge of this latter interest , to which the former , it would seem , must give way in certain circumstances . Let us assume that the Minister of Defence has committed an indictable offence : the country is in a critical situation and he alone can properly ensure its defence . In such a serious situation , should not ORG be able to make the interests of justice take second place behind that other , even weightier public interest , the defence of the ORG and public safety ?","...","ORG will observe the procedure laid down by LAW , according to the nature of the offence referred to it . When dealing with a less serious indictable offence , it will comply with the relevant existing provisions , whereas when dealing with a crime it will comply with the LAW 's provisions governing assize courts . In the latter case , since ORG sits without a jury , it is clear that the provisions of LAW concerning that part of the procedure can not be applied . \u201d","The law entitled \u201c PERSON on offences committed by ministers otherwise than in the performance of their official duties \u201d was adopted on DATE . It provided , inter alia :","\u201c ORG and less serious indictable offences committed by a minister otherwise than in the performance of his official duties shall be referred to ORG , sitting as a full court ... \u201d","\u201c ORG shall observe the procedure laid down in LAW ... \u201d","\u201c Summary offences committed by ministers shall be dealt with by the lower courts under the ordinary procedure . \u201d","\u201c The present PERSON shall come into force on DATE following its publication and shall remain in force for DATE only ... \u201d","In accordance with the provisions of this law the Minister of Defence and the member of ORG were committed for trial in ORG , tried and convicted . The relevant parts of ORG judgment of DATE read as follows :","\u201c Whereas the indivisibility of the procedure is a necessary consequence of the indivisibility of the offence and requires the whole proceedings to be assigned to the highest - ranking court which has jurisdiction to try one of the defendants ;","Whereas this public - policy principle , which is universally accepted in case - law , was enshrined in a law promulgated in GPE , the LAW CARDINAL Messidor Year IV , governing the prosecution of the accomplices of a representative of the people or a member of ORG indicted by the legislature and committed for trial in ORG ; whereas it has subsequently been confirmed in new legislation by the way it was applied in LAW ;","\u201c Whereas , since Lieutenant - General PERSON , the Minister of Defence , must be tried by ORG , pursuant to the PERSON of DATE , that court is , according to the principle stated above , legally seized of the proceedings brought at the same time against representative NORP , co - defendant ;","...","\u201c For these reasons , [ the ORG ] finds both defendants guilty of the offence of fighting a duel without causing injury and the first defendant guilty of the offence of provoking that duel . \u201d","On DATE ORG enacted a second law providing for the temporary and partial implementation of LAW . This law concerned only the investigative measures which could be ordered by ORG and it was provided that it was to remain in force for DATE .","In its opinion of DATE on the bill which formed the basis for this law , LAW PERSON d'Etat expressed the following views :","\u201c The bill as it stands uses these broad powers in a very limited way , but ORG should use them to define not only the offences which ministers may possibly commit but also the penalties which may be imposed on them or the procedure to be followed for their prosecution , both before and after indictment proper . Such legislation is likely to cause difficulties on account of the uncertainty which it may leave , for example , about how proceedings brought in such conditions would be continued . \u201d","On DATE ORG enacted a third law providing for the temporary and partial implementation of LAW . This concerned federal ministers . It empowered ORG to order investigative measures in respect of a minister and laid down the conditions and specified the procedures for carrying out such measures . LAW of DATE concerned ministers of the community and regional councils . These CARDINAL laws remained in force until DATE .","Pursuant to LAW DATE , ORG has jurisdiction to give a preliminary ruling , in the form of a judgment , on questions concerning , firstly , contravention by CARDINAL of the statutes , decrees or rules contemplated by LAW rules laid down by or pursuant to LAW to determine the respective powers of the State , the Communities and the Regions ; secondly , any conflict between decrees or rules as contemplated by LAW promulgated by different legislative authorities ; and , lastly , contravention by one of the statutes , decrees or rules contemplated by LAW , CARDINAL bis or CARDINAL of the LAW . Articles CARDINAL and CARDINAL bis of the LAW , which became LAW and DATE after the revision of CARDINAL DATE , enshrine the principles of the equality of all NORP citizens before the law and enjoyment of recognised civil rights and freedoms without discrimination .","Under LAW of LAW , a court before which a preliminary question has been raised must in principle seek a ruling on the matter from GPE and Procedure Court . However , this is not mandatory where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling . Similarly , a court whose decisions are open to challenge in the form of an ordinary appeal , a petition to reopen proceedings , an appeal on points of law or an application for judicial review in the LAW d'Etat is also exempted from this obligation either when ORG has already given a ruling on a question or appeal having the same object or when it considers that the reply to the preliminary question is not essential for it to be able to give judgment , or when it is manifestly apparent that the law , decree or rule contemplated in LAW ) does not contravene any rule or LAW contemplated in LAW .","When LAW of DATE was at the drafting stage , the Minister of ORG justified the obligation to refer a preliminary question by the need to avoid any risk of arbitrary assessment by the courts of the expediency of doing so .","Article CARDINAL \u00a7 QUANTITY of the Law of DATE containing the preliminary part of LAW formerly provided :","\u201c Prosecution shall be time - barred after DATE in the case of a crime , DATE in the case of less serious indictable offences and DATE in the case of summary offences , counting from DATE when the offence was committed . \u201d","Article CARDINAL of the Law of DATE amended the above provision , which now reads as follows :","\u201c Prosecution shall be time - barred after DATE in the case of a crime , DATE in the case of less serious indictable offences and DATE in the case of summary offences , counting from DATE when the offence was committed . \u201d","The papers on the drafting history of the PERSON of DATE include the following observations on LAW :","\u201c The new limitation period applies where DATE has not yet expired , without any retrospective effect . That is also the minister 's opinion .","...","Third case : an offence is committed before DATE and a step retriggering the running of time is taken on DATE . Given that Article CARDINAL has never been amended , it is a moot point whether prosecution for the offence would become time - barred on DATE or on DATE . ...","The rapporteur considers that the DATE period which began on DATE would become DATE on DATE . Proceedings would in that case become time - barred on DATE instead of DATE . The new limitation period applies where the current period has not yet expired , without any retrospective effect . That is also the minister 's opinion . \u201d ( Doc . PERSON . PERSON . , PERSON , no . CARDINAL\/CARDINAL , p. CARDINAL ) .","Circular no . CARDINAL of DATE on this point from ORG at ORG includes , inter alia , the following instruction :","\u201c It follows that , where a step which causes time to begin to run again is taken before prosecution becomes time - barred , the limitation period is extended by DATE counting from the last relevant step retriggering the running of time . \u201d","Article CARDINAL of the Law of DATE containing the preliminary part of LAW , which was not amended by LAW DATE , provides :","\u201c For the purposes of limitation of prosecution , time shall be caused to run again only by procedural steps in the investigation or prosecution of an offence taken within the time - limit laid down by DATE .","Such steps shall cause time to begin to run again for a new period of equal length , even for persons who are not directly affected by them . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW makes the following provision as regards the conduct of trials before ORG :","\u201c The public prosecutor , the civil party or his counsel shall present the facts of the case ; the reports , if any have been drawn up , shall be read out by the registrar ; witnesses for the defence and the prosecution shall give evidence , where appropriate , and any objections heard and determined ; any exhibits capable of establishing guilt or innocence shall be shown to the witnesses and the parties ; the defendant shall be questioned ; the defendant and any persons liable under civil law shall present their defence ; the public prosecutor shall sum up and make his final submissions ; the defendant and any persons liable for the offence under civil law shall have the right to reply . \u201d","The concept of \u201c connection \u201d is defined in Articles CARDINAL and CARDINAL of LAW .","Article CARDINAL provides : \u201c [ ORG ] shall rule , in a single judgment , on connected offences in respect of which the documentary evidence has been placed before it at the same time . \u201d","Article CARDINAL provides :","\u201c Offences are connected either where they have been committed at the same time by CARDINAL person acting together or where they have been committed by different persons , even at different times and in various places , but as the result of a conspiracy between them beforehand , or where the offenders have committed some of the offences in order to obtain the means to commit the others , to facilitate or consummate commission of those other offences or to ensure that they will go unpunished . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6","7"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4689","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1999,"docname":"I.J.L. v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and currently living in GPE .","He is represented before the ORG by PERSON , a firm of solicitors based in GPE as well as by Mr PERSON , a solicitor also based in GPE .","On DATE the Secretary of ORG published a ORG ( \u201c the Report \u201d ) prepared by ORG appointed by ORG under sections CARDINAL(CARDINAL ) and CARDINAL of LAW DATE to investigate allegations of an unlawful share support operation at the time of the take - over by ORG of ORG .","The applicant maintains that the Report refers quite extensively to him and is pejorative , containing criticisms of his honesty both in relation to the events which are the principal subject - matter of the ORG and his responses to the ORG . The content of the ORG is seriously detrimental to his reputation , all the more so in view of the intense media interest generated by it .","The applicant refers to the facts that on CARDINAL and DATE his lawyers submitted detailed representations to the Secretary of ORG urging him not to publish the ORG as he had lodged an application with ORG in connection with the manner in which the ORG had obtained evidence from him and how that evidence was subsequently used by the prosecution at his trial . In their representations to the Secretary of ORG the applicant \u2019s lawyers argued that , at the very least , publication of the ORG should be deferred until the Convention institutions had adjudicated on his complaints . They requested the Secretary of ORG in the event of a decision to publish the ORG in opposition to their representations to give them full information on the reasons for doing so ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70171","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF \u00c7ORUH v. TURKEY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE .","In DATE ORG ( ORG ) expropriated a part of the applicant \u2019s plot of land . A committee of experts assessed the value of the plot of land and the relevant amount was paid to her .","Following the applicant \u2019s request for increased compensation , on DATE ORG of First - instance awarded her additional compensation plus interest at the statutory rate .","On DATE ORG held a hearing and quashed the judgment of the First - instance court .","On DATE ORG of First - instance awarded the applicant additional compensation of MONEY ( TRL ) plus interest at the statutory rate , running from DATE , applicable at the date of the court \u2019s decision .","On DATE ORG held a hearing and upheld the judgment of ORG of First - instance .","On DATE ORG dismissed the applicant \u2019s request for rectification .","On DATE ORG paid GPE CARDINAL to the applicant .","NORP The relevant domestic law and practice is described in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINALVI , \u00a7 \u00a7 DATE ) . Moreover , under LAW no . DATE of DATE concerning enforcement and bankruptcy ( \u0130cra ve PERSON ) , the property belonging to the ORG can not be seized or confiscated ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22186","languageisocode":"ENG","respondent":"PRT","branch":"ADMISSIBILITY","date":2000,"docname":"BRANDAO FERREIRA v. PORTUGAL","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant , a wing commander in the airforce , was a military attach\u00e9 at ORG in GPE .","On DATE the chief liaison officer for military attach\u00e9s informed ORG that the applicant had been absent from duty , without leave and using an official vehicle , for DATE .","On DATE the ORG Chief of Staff ordered disciplinary proceedings to be brought against the applicant and appointed an officer to conduct the investigation .","On DATE the investigating officer sent the applicant a copy of the chief liaison officer \u2019s report with a request for his comments , which the applicant sent him on DATE .","On DATE the investigating officer heard evidence from the chief liaison officer in the applicant \u2019s absence .","On DATE the investigating officer lodged submissions accusing the applicant of dereliction of duty contrary to paragraphs CARDINAL and CARDINAL of Article CARDINAL of the Military Disciplinary Regulations ( unauthorised use of a military vehicle and absence without leave ) , aggravated by circumstances set out in subparagraphs ( b ) and ( h ) of Article CARDINAL of the Regulations ( the breach of regulations had occurred overseas and had been detrimental to the service ) .","In his reply lodged on DATE the applicant gave the names of CARDINAL witnesses from whom , he said , the investigating officer should take statements .","On an unspecified date the investigating officer declared the investigation to be at an end and sent his report to the ORG Chief of Staff . On DATE the Chief of Staff found the applicant guilty of the alleged offences and sentenced him to CARDINAL days\u2019 detention .","The applicant requested the Chief of Staff to review that decision on the grounds that there had been a breach of the adversarial principle . By an order of DATE the Chief of Staff granted the request in part and ordered the investigating officer to take evidence from the witnesses whose names had been provided by the applicant .","The investigating officer heard the CARDINAL witnesses concerned in the absence of the applicant and his representatives DATE . In his report dated DATE to ORG , he indicated that the statements of the witnesses did not alter his earlier conclusions .","By an order of DATE the Chief of Staff upheld the sentence of CARDINAL days\u2019 detention , which had been served by the applicant in the meantime .","On an unspecified date the applicant appealed against that decision to ORG ( Supremo Tribunal Militar ) . He alleged among other things a violation of his defence rights and of the adversarial principle . In that connection , he complained that he had not been permitted to question the witnesses whose names he had given , either in person or through his representative .","On DATE ORG dismissed the applicant \u2019s appeal . With regard to the adversarial principle , it said , inter alia :","\u201c Certainly , military disciplinary proceedings , which are not criminal proceedings , are governed subsidiarily by the procedural provisions of LAW , and in particular those guaranting the rights of the defence . However , criminal proceedings comprise CARDINAL distinct stages : the investigation stage , which is governed by the inquisitorial principle , and the trial stages , which is subject to the adversarial principle . During the investigative stage , the accused \u2019s representative is not entitled to question or contradict witnesses . He is restricted to requesting them to give evidence on certain factual matters before the investigating [ officer ] . For that reason , there has been no breach of the adversarial principle , which is inapplicable to that stage of the proceedings ... \u201d","ORG went on to hold that the mitigating circumstance pleaded by the applicant , namely his co - operation in uncovering the truth , was not to be taken into consideration .","Detention or a ban on leave ( deten\u00e7ao ou probi\u00e7ao de sa\u00edda ) is a penalty laid down by LAW ( adopted by LAW . CARDINAL of DATE ) , which provides , inter alia :","\u201c CARDINAL . Detention or a ban on leave shall consist of the confinement of the person punished to barracks or aboard ship throughout the term of the sentence . The person punished shall not be exempted from military training or the performance of rota ( escala ) duties .","... \u201d","The sentence may not exceed DATE in the case of officers . As to its effects , Article CARDINAL lays down that the person concerned shall lose CARDINAL day of seniority rights for every CARDINAL days\u2019 detention .","ORG also lay down other sentences , notably disciplinary imprisonment and aggravated disciplinary imprisonment . Disciplinary imprisonment means detention in suitable LOC . However , the serviceman may be called on to perform any work required of him TIME ( Article CARDINAL ) . Aggravated disciplinary imprisonment means detention in a prison ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100094","languageisocode":"ENG","respondent":"ARM","branch":"ADMISSIBILITY","date":2010,"docname":"PAPYAN AND DAVTYAN v. ARMENIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicants , Mr PERSON , Mr PERSON , PERSON PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , Representative of GPE at ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants are a family who resided in a house situated at CARDINAL FAC , GPE , which had allegedly belonged to their family since DATE . It appears that the house in question was situated on public land and had been built without permission .","It appears that in DATE and DATE the applicants PERSON and PERSON ( hereafter , the first and the second applicant respectively ) applied to the relevant public authority to have the house privatised in the framework of the privatisation scheme . According to the applicants , no decision was taken on their applications .","On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State for the purpose of carrying out construction projects , covering a total area of QUANTITY m. FAC was listed as one of the streets falling within such expropriation zones .","On DATE and CARDINAL DATE the first applicant applied to ORG , seeking to have his ownership right registered in respect of the house .","NORP By letters of DATE and DATE ORG refused the first applicant 's request .","On DATE the first applicant applied to GPE and ORG of GPE ( \u0535\u0580\u0587\u0561\u0576 \u0584\u0561\u0572\u0561\u0584\u056b \u053f\u0565\u0576\u057f\u0580\u0578\u0576 \u0587 \u0546\u0578\u0580\u0584-\u0544\u0561\u0580\u0561\u0577 \u0570\u0561\u0574\u0561\u0575\u0576\u0584\u0576\u0565\u0580\u056b \u0561\u0578\u0561\u057b\u056b\u0576 \u0561\u057f\u0575\u0561\u0576\u056b \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) , seeking to establish a fact of legal significance , namely to have his ownership in respect of the house recognised by virtue of adverse possession . He submitted , in particular , that he had been using the house as his own property since DATE .","On DATE the Government decided to contract out the construction of CARDINAL of the sections of FAC DATE which was to be renamed FAC \u2013 to a private company , GPE .","On DATE GPE and ORG signed an agreement which , inter alia , authorised the former to negotiate directly with the owners of the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG , seeking forced expropriation of such property .","By a letter of CARDINAL DATE GPE Hills CJSC informed the applicant PERSON ( hereafter , the third applicant ) that the house in question was situated within the expropriation zone of the FAC area and was to be taken for ORG needs . The third applicant was offered MONEY ( ORG ) as financial assistance payable under the relevant governmental decree to registered persons , since the house was an unauthorised construction and she was only registered in it .","It appears that a similar offer was made to the other applicants . It further appears that none of the applicants responded to the offer , not being satisfied with the amount of compensation proposed .","On DATE GPE instituted proceedings on behalf of the ORG against the applicants , seeking to oblige them to accept the offer and to have them evicted , with reference to Government Decree No . CARDINAL","On DATE the ORG and ORG of GPE examined jointly the first applicant 's application of DATE and the claim of GPE . The court decided to grant the latter , finding that the house was situated in an expropriation zone as identified by the ORG and was to be taken for ORG needs . The court awarded each applicant compensation payable to persons registered in unauthorised constructions , namely CARDINAL . The court further decided to dismiss the first applicant 's application as unsubstantiated .","On DATE the first applicant lodged an appeal . In his appeal , he argued that the court , in dismissing his application , had incorrectly interpreted various provisions of LAW , LAW and LAW . In support of his arguments the first applicant relied on evidence which allegedly substantiated his ownership claim in respect of the house . He further argued that , even if his ownership was not formally recognised , the amount of compensation awarded to him was inadequate . He finally claimed that as a user of the expropriated property he was entitled under the law to receive other property in its place .","On DATE ORG ( \u0540\u0540 \u0584\u0561\u0572\u0561\u0584\u0561\u0581\u056b\u0561\u056f\u0561\u0576 \u0563\u0578\u0580\u056e\u0565\u0580\u0578\u057e \u057e\u0565\u0580\u0561\u0584\u0576\u0576\u056b\u0579 \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) granted the claim of GPE and dismissed the first applicant 's application on the same grounds as FAC .","On DATE the first applicant lodged an appeal on points of law . In his appeal , he argued that ORG judgment was unreasoned and was not based on the evidence in the case . ORG had ignored and incorrectly applied various provisions of LAW and LAW , and had failed to establish correctly the facts . He further argued that , regardless of the formal status of the property in question , he should have received adequate compensation or a plot of land or another flat instead . He finally claimed that the house was ownerless and the court should have recognised his ownership in its respect by virtue of adverse possession .","On DATE ORG ( \u0540\u0540 \u057e\u0573\u057c\u0561\u0562\u0565\u056f \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) dismissed the first applicant 's appeal .","For a summary of the relevant domestic provisions see the judgment in the case of PERSON and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82200","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2007,"docname":"CASE OF KUCHERUK v. UKRAINE","importance":3,"conclusion":"Preliminary objection (non-exhaustion of domestic remedies) partially joined to merits and dismissed (Art. 3 and 13) and remainder dismissed;Preliminary objection (six-month period) dismissed (Art. 3 and 13);Preliminary objection (six-month period) allowed (art. 5-1 and 5-4 : detention in the SIZO);Preliminary objection (non-exhaustion of domestic remedies) dismissed (art. 5-4 : confinement in the hospital);Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the city of ORG .","In DATE the applicant was diagnosed as suffering from schizophrenia . Since then the applicant has undergone outpatient treatment at ORG no . CARDINAL ( hereafter \u201c the FAC \u201d ) .","In DATE the applicant was convicted of theft and hooliganism and sentenced to DATE imprisonment suspended on probation .","On DATE the applicant was arrested and taken into police custody at ORG on suspicion of hooliganism and theft .","On DATE the police investigator assigned to the applicant \u2019s case charged him with hooliganism and theft . On DATE , considering that there were serious suspicions against the applicant , that he had a previous conviction for similar offences and was on probation and that there was a serious risk that the applicant would commit further offences or escape trial , the judge of ORG ( hereafter \u201c the ORG \u201d ) ordered the applicant \u2019s detention on remand .","On that same date the applicant was examined at ORG no . CARDINAL . He was found to be suffering from schizophrenia but fit for detention on remand .","On DATE the applicant was brought to the ORG trial ORG SIZO no . DATE ( hereafter \u201c the GPE \u201d ) from the police station . On his admission the applicant was received by the GPE medical department for observation and assessment . The prison psychiatrist diagnosed him as suffering from schizophrenia , but certified him fit for detention at the GPE .","NORP The applicant was admitted to a psychiatric ward of the medical wing of the GPE . On CARDINAL and DATE he was visited by a prison therapist who prescribed him cardiovascular and systemic medication .","On DATE the investigator asked ORG for information on whether the applicant had been known to be suffering from a mental disease . On DATE the ORG confirmed that the applicant had been under psychiatric treatment for schizophrenia DATE . Relying on this information , on CARDINAL DATE , the investigator ordered an inpatient forensic psychiatric examination of the applicant to determine his sanity at the time of the offence .","The applicant was transferred to ORG no . CARDINAL ( hereafter \u201c the Hospital \u201d ) , where he was examined from CARDINAL to CARDINAL DATE . On the latter date forensic experts drew up a report , which included the following findings :","\u201c ... Psychiatric status","The patient is available for verbal contact . However such contact is highly formal . Mimics and movements are spontaneous and incongruous . He can not understand or appreciate the purpose of the examination or the situation in general . The patient is restless , euphoric , fidgety , talkative but incoherent in his speech . .... The patient ... roars with laughter and grimaces , sticking his tongue out . ... Sometimes he starts asking in a whisper whether he will be released , but having received the answer , asks the same question again . ... If asked about his experience after the arrest , the patient becomes restless , somewhat confused , the expression on his face becomes blank . ... His memory and intelligence can not be tested for lack of productive contact ... Sometimes he becomes tense , restless and quarrelsome ....","Conclusion","Mr Kucheruk currently shows symptoms of acute personality disorder in the form of a reactive state of mind .","It is at present impossible to determine the question of his sanity at the time of the offences on account of the complexity of the clinical manifestations of his reactive state of mind , which could also point to another mental illness .","Mr PERSON \u2019s mental state requires compulsory inpatient psychiatric treatment . \u201d","NORP In DATE the applicant was transferred back to the GPE . On DATE he was examined by the prison psychiatrist . No medication was prescribed on that occasion .","On DATE the investigator requested compulsory psychiatric treatment for the applicant . On DATE the applicant \u2019s case - file was sent to ORG for approval . On DATE the investigator \u2019s request and the case - file were received by ORG .","On DATE ORG , following an adversarial trial in the presence of the applicant \u2019s lawyer , found him guilty of theft and hooliganism as charged . Referring to the experts\u2019 report of CARDINAL DATE , the court found that the applicant \u2019s acute personality disorder made it impossible at that stage to determine his sanity at the time of the offences and , consequently , to consider the question of punishment . ORG made an order under LAW ( hereafter the CCrP ) committing the applicant for compulsory psychiatric treatment and suspended the criminal proceedings against him pending his recovery . The court also specified that :","\u201c Mr PERSON \u2019s preventive detention on remand is to be revoked upon his admission to the psychiatric establishment .","The judgment may be appealed against to ORG within DATE from its delivery . \u201d","On DATE the court order of DATE was sent to the GPE for implementation .","In the meantime , the applicant , who was held in an ordinary cell , started to show signs of personality disorder . At the subsequent inquiry the inmates with whom he shared a cell stated that the applicant had acted in a strange way , mumbling incoherently , suddenly yelling at them or starting a fight . On DATE the applicant assaulted CARDINAL of his cellmates . On DATE he was transferred to the medical wing of the GPE , where he shared a cell with other prisoners .","From DATE each new duty shift of the ORG guards was regularly informed of the possibility of violent outbursts on the applicant \u2019s part , and of the threat he posed to other detainees , the GPE staff and himself .","On DATE the prison psychiatrist examined the applicant , diagnosed him as suffering from schizophrenia and catatonic stupor and prescribed tranquilisers , analeptics ( drugs that stimulate the central nervous system ) and systemic drugs . On DATE the psychiatrist found that the applicant had recovered from the catatonic stupor , and prescribed a change in his medication .","On DATE the applicant became particularly agitated , moving erratically around the cell , waving his arms , bumping into the furniture and swearing at prison guards . At TIME CARDINAL prison guards on duty were called by the medical wing staff to deal with the applicant . Through the peephole they observed his erratic movements and , having classified them as an \u201c outrage \u201d ( \u0431\u0443\u0439\u0441\u0442\u0432\u043e ) within the meaning of section CARDINAL of the Law \u201c on ORG \u201d , ordered the applicant to stand still , face the wall and put his hands behind his back . When the applicant failed to comply , the guards warned him that they were about to use force and entered the cell . The guards beat the applicant with truncheons , forced him to the floor and handcuffed him . Although a prison paramedic was called to attend to the applicant soon after the incident , there is no information that he received any treatment or medication for the injuries sustained during the struggle to restrain him .","In a report dated DATE and amended , it would appear , on DATE , the CARDINAL prison guards and the paramedic involved in the incident informed the Governor of the GPE about the circumstances of the use of special police equipment ( truncheons and handcuffs ) . In different handwriting it was added that the handcuffs were applied at TIME on DATE and removed at TIME on DATE . At the bottom of the page , below the signatures of the officers and the paramedic , it is indicated that \u201c distinct traces of the use of [ truncheons and handcuffs ] were found \u201d and that \u201c no other injuries ... could be detected \u201d . These notes were signed by a certain PERSON . , apparently a prison doctor or paramedic , and dated DATE .","On DATE the Governor ordered the applicant to be confined to a disciplinary cell for DATE for \u201c serious breach of prison rules \u201d . Before his transfer the applicant was examined by CARDINAL prison officers and a doctor , who indicated in their report that his shoulders and buttocks bore traces of injuries inflicted by truncheons . They concluded , however , that the applicant was fit to be detained in the disciplinary cell .","Whilst in the disciplinary cell the applicant was locked up for TIME each day . Although the disciplinary cell was visited DATE by a physician and psychiatrist , no treatment or medication was administered to him as , according to the medical records , he refused to accept them . The entries made by the prison physician in the applicant \u2019s medical record for CARDINAL , DATE and DATE state :","\u201c DATE ... [ the applicant ] lurched towards me , stretching out his handcuffed hands ...","DATE ... [ the applicant ] was moving quickly around the cell , bending down and trying to pull his legs between his handcuffed hands ... banging his head against the wall trying to free himself from the handcuffs ...","DATE ... [ the applicant ] is trying to remove the handcuffs , rolling on the floor \u201d .","The applicant \u2019s detention in the disciplinary cell continued until his discharge from the GPE on DATE .","On DATE the applicant was transferred to the Hospital for compulsory treatment pursuant to ORG judgment of DATE .","On DATE , following a fresh assessment of the applicant \u2019s mental condition , the psychiatric commission of the ORG recommended that his psychiatric treatment should continue .","On DATE , having regard to the experts\u2019 report of CARDINAL DATE and the oral submissions of the doctor in attendance at ORG , ORG allowed the petition of the chief psychiatrist of ORG and ordered an extension of the applicant \u2019s compulsory psychiatric treatment pending his recovery .","On DATE the applicant \u2019s mother filed a petition with ORG ( hereafter \u201c the Moskovskyy Court \u201d ) under LAW ( hereafter \u201c the CCivP \u201d ) seeking to have her son declared incapable by reason of mental disorder .","On DATE the psychiatric commission of the Hospital recommended that the applicant \u2019s compulsory treatment be discontinued .","On DATE ORG ordered a forensic psychiatric examination of the applicant under LAW CCivP in order to determine his sanity .","On DATE ORG lifted the compulsory treatment order . It also indicated that criminal proceedings against the applicant should be resumed and a forensic psychiatric examination ordered to determine his sanity at the time of the offence .","On DATE the pre - trial investigation against the applicant was resumed .","On DATE the ORG received ORG ruling of DATE .","On DATE the investigator requested ORG to authorise the applicant \u2019s inpatient psychiatric examination under LAW ORG , which request was granted on DATE .","Both forensic examinations ordered by the Moskovskyy and ORG were completed on DATE . The psychiatric experts concluded that the applicant \u2019s mental disorder prevented him from understanding the consequences of his actions and controlling his behaviour .","On DATE the applicant was discharged from the ORG and handed over to his mother .","On DATE ORG terminated the criminal proceedings against the applicant in view of his lack of criminal liability .","On DATE ORG allowed the mother \u2019s petition and declared the applicant legally incapacitated .","Upon the applicant \u2019s admission to ORG on DATE his mother was informed of his whereabouts . PERSON stated that when she visited him the following day she saw that he was badly injured and could hardly move or talk . The only words he allegedly managed to utter were \u201c [ they ] beat [ me ] severely \u201d ( c\u0438\u043b\u044c\u043d\u043e \u0431\u0438\u043b\u0438 ) .","On DATE the applicant \u2019s mother filed a criminal complaint against the prison guards for ill - treatment of her son .","On DATE the applicant \u2019s mother and a human rights activist from a local non - governmental organisation visited the applicant in his ward . They drew up a document attesting that the applicant had an injury on his head behind the left ear , several bruises on the face and forehead and deep cuts around his wrists .","On an unspecified date the Governor of the ORG opened a criminal investigation into the applicant \u2019s mother \u2019s complaint . On DATE written statements were taken from CARDINAL of the inmates who had shared an ordinary cell with the applicant , from his CARDINAL cellmates in the medical wing who witnessed the incident of DATE , from CARDINAL prison guards involved in that incident and from a prison paramedic . The inmates and the prison guards briefly outlined the events of DATE as they are described above in DATE . The paramedic wrote that he had been called to attend to the applicant after the latter had been immobilised by the guards . He had observed truncheon marks on the applicant \u2019s shoulder blades and buttocks and marks on his wrists made by handcuffs .","As part of the inquiry , on DATE the Governor of the ORG ordered that medical evidence be obtained . On DATE the applicant was examined by an expert from ORG . The expert \u2019s report stated the following :","\u201c Examination","PERSON has a QUANTITY oblong abrasion with a thick scab on the outer part of his right wrist . The wound is horizontal . Similar abrasions are observed on the inner part of the right wrist and the outer and inner parts of the left wrist , as well as on the left elbow , the right occipital area and the inner - rear and frontal parts of the left thigh . These injuries measure from QUANTITY . to QUANTITY . ...","Conclusion","According to the medical documents provided [ by the Governor of the GPE ] it is established that PERSON bore bruises and abrasions which had been inflicted by blunt solid objects .","When PERSON was examined on PERSON he had abrasions on his head , right foot , arms and left thigh . He also had bruises on the left eye and the left shoulder . All these injuries were inflicted by blunt solid objects . The bruises were DATE and the abrasions DATE ...","Having regard to the description of the injuries in medical documents [ drawn up by the ORG staff ] , as well as the entries for CARDINAL and DATE , where the injuries are not described at all , and the nature of the injuries ( indicating the use of truncheons and handcuffs ) , it is impossible to draw any conclusions about the time of the injuries .","Mr PERSON \u2019s injuries could have been inflicted by special equipment ( truncheons and handcuffs ) . \u201d","On DATE the Governor of the GPE decided not to bring criminal proceedings against the guards involved in the incident , finding no wrongdoing on their part . He relied in this conclusion on the written statements made by the inmates and prison officers and the forensic report of DATE . On an unknown date the prison supervision department of ORG confirmed this decision .","On DATE the applicant \u2019s mother received a letter from the Governor of the ORG in which he informed her that no criminal investigation in respect of the accused prison officers was to be opened , without , however , indicating the date of the relevant decision or providing a copy . In his letter the Governor also expressed the opinion that the truncheons and handcuffs had been used by the guards in accordance with the relevant regulations , to protect the GPE staff and the applicant himself from his uncontrolled and aggressive behaviour .","On DATE ORG ( hereafter \u201c the Department \u201d ) informed the applicant \u2019s mother that an additional internal inquiry , undertaken , apparently , on her request , had revealed no wrongdoing on the part of the GPE guards .","By a letter of DATE the Head of the Department informed the applicant \u2019s mother that her further complaints were unsubstantiated . He referred in this connection to the inquiry carried out by the Governor of the GPE , which had culminated in his decision of DATE . This was the first mention of the date of the Governor \u2019s decision in any official correspondence with the applicant \u2019s mother . On DATE she requested a copy of the final report and access to the case - file . On DATE the Head of the ORG rejected this request . On DATE he rejected her second request for access to the file .","On DATE the applicant \u2019s mother challenged the Governor \u2019s decision of CARDINAL DATE before a court . On CARDINAL DATE the ORG of Kharkiv ( hereafter \u201c the ORG \u201d ) , having heard the prosecutor , rejected her complaint as unsubstantiated . The applicant \u2019s mother appealed .","In the course of the appeal proceedings , on DATE , the applicant \u2019s lawyer was , for the first time , given access to the case - file .","On DATE the ORG of Appeal quashed the decision of ORG on the grounds that it had been taken in the complainant \u2019s absence , and remitted the case for fresh consideration .","On DATE ORG found , without giving any details , that the inquiry was flawed . It reopened the case and handed it to the Governor of the GPE for further investigation .","On DATE the Governor , referring to the same evidence as before , discontinued the criminal proceedings again . His final report indicated , inter alia , that :","\u201c ... PERSON arrived at the [ GPE ] with a medical certificate , issued by the city hospital no . CARDINAL on DATE , according to which he was fit to be detained in a GPE . ... On the basis of this information Mr PERSON was placed in a psychiatric ward of the medical wing .","On DATE Mr PERSON was examined by [ the prison psychiatrist ] who diagnosed him as suffering from schizophrenia . At the time of the examination his mental condition was satisfactory and he did not need any active treatment . \u201d","As to the applicant \u2019s conduct after the incident of DATE and his transfer from the ordinary cell to the medical wing , the Governor stated that :","\u201c On DATE Mr PERSON was examined by [ the prison psychiatrist ] , who found him suffering from schizophrenia and catatonic stupor and prescribed the relevant medication .","On DATE the patient recovered from the catatonic stupor ... but continued to have tense relations with his cellmates .","Accordingly , based on general information about Mr PERSON \u2019s behaviour , the officers on duty were warned daily about his possible violent outbursts against his cellmates or the PERSON staff . \u201d","The report of CARDINAL DATE further states that , following the incident of DATE , the applicant was placed in the disciplinary cell for serious breach of prison rules . Having regard to the applicant \u2019s mental condition , the paramedic who examined him after the incident had recommended keeping him handcuffed .","As regards the time of the applicant \u2019s discharge to ORG , the Governor indicated that :","\u201c The [ ORG judgment of DATE ] did not contain any provision for immediate execution . It set out a DATE time limit for appeal ; therefore the term provided by LAW for execution of this judgment was complied with as the applicant was transferred to the [ Hospital ] on DATE . \u201d","On DATE ORG , acting on a complaint lodged by the applicant \u2019s lawyer , quashed that decision and ordered further investigations , pointing out the following irregularities :","failure to take account of the submissions of the applicant \u2019s mother concerning the applicant \u2019s state of health in DATE ;","failure to measure the lawfulness and reasonableness of the PERSON conduct against the legal principle prohibiting degrading treatment ;","failure to determine whether the applicant \u2019s misbehaviour constituted a breach of prison rules that warranted his placement in a disciplinary cell ;","failure to consider the proportionality of the force used ;","the fact that the investigation was conducted by the Governor of the GPE , a person whose impartiality was highly doubtful .","The case - file was transmitted to ORG for additional investigations . In a final report of CARDINAL DATE a prosecutor of the prison supervision department of ORG came to a similar conclusion to that reached by the Governor of the GPE , that the applicant was fit for detention in the GPE and the prison officers concerned acted properly on the basis of the orders they were given and the relevant regulations . The prosecutor referred to the evidence collected by the Governor \u2019s investigation and the statements of the prison psychiatrist that certain drugs should normally be used to pacify mentally ill patients , and when no drugs were available , special equipment could be used to immobilise such patients . The prosecutor further agreed with the Governor \u2019s finding that the applicant \u2019s conduct constituted a flagrant violation of prison rules and warranted his detention in the disciplinary cell . The applicant \u2019s mother appealed .","On DATE ORG ( hereafter \u201c the ORG \u201d ) quashed that report and ordered further investigations as the authorities had failed to follow the instructions of ORG .","On DATE a senior prosecutor of the prison supervision department of ORG , following additional investigation , decided not to bring any charges against the prison officials . His final report repeated , in substance , the findings in the report of DATE that the applicant had been fit to be detained in the GPE and that there had been no wrongdoing on the part of the prison authorities . The senior prosecutor stated , inter alia , that the applicant \u2019s detention after DATE had been based on a letter from the Head of ORG of ORG that the applicant \u2019s case - file had been sent to ORG for approval . As to the applicant \u2019s DATE confinement in the disciplinary cell , he considered that \u201c the severity of the punishment imposed was fully in keeping with the nature of the offence committed \u201d . He further considered that the applicant had been held in the GPE until DATE because of the DATE time - limit for entry into force of the judgment of DATE . Although the forensic report of CARDINAL DATE recorded the use of handcuffs by the prison guards , the investigation did not establish whether or not , DATE , the applicant was handcuffed all the time . The senior prosecutor concluded that there was no evidence that the prison officers had acted in bad faith or in violation of the relevant laws and regulations when restraining the applicant with truncheons and handcuffs , putting him in a disciplinary cell and holding him in the GPE until DATE .","On DATE the applicant \u2019s mother challenged that report before ORG , where the proceedings are still pending .","The relevant extracts from the LAW read as follows :","\u201c LAW","Everyone has the right to respect for his or her dignity .","No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ...","Article CARDINAL","Every person has the right to freedom and personal inviolability .","No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ... \u201d","The text of LAW and ORG and CARDINAL of LAW of DATE can be found in the ORG \u2019s judgment in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 CARDINAL , CARDINAL DATE ) .","LAW provides :","\u201c Excess of authority or official powers , that is the wilful commission by an official of acts which patently exceed the rights and powers vested in him or her and which cause any significant damage to the legally protected rights and interests of individual citizens , state and public interests or those of legal entities shall be punishable .... \u201d","Article CARDINAL of the Code prescribes liability for official negligence :","\u201c Neglect of official duty , that is failure to perform , or improper performance , by an official of his or her official duties due to negligence , where it causes any significant damage to the legally protected rights and interests of individual citizens , state and public interests or those of legal entities , shall be punishable ... \u201d","The relevant provisions of the ORG regulating the conduct of pretrial investigation proceedings are summarised in the ORG \u2019s judgment in the case of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL and DATE , DATE ) ,","Article CARDINAL enumerates the bodies responsible for inquiries . Normally these functions are discharged by the police . However , paragraph CARDINAL of Article CARDINAL also vests this power in the governors of prisons and pre - trial detention centres , who conduct inquiries into offences committed by prison officials involving infringements of prison rules .","Articles CARDINAL ( purpose of and grounds for taking preventive measures ) , CARDINAL ( list of preventive measures ) , CARDINAL ( circumstances that should be taken into account in choosing a preventive measure ) and CARDINAL ( time - limits for holding in custody ) of the ORG are to be found in the GPE v. GPE judgment ( no . CARDINAL\/CARDINAL , \u00a7 CARDINAL , ORG DATE ) .","LAW CCrP insofar as relevant provides as follows :","\u201c Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of DATE imprisonment ...","Persons against whom a detention on remand order is issued shall be held in pre - trial detention centres . \u201d","DATE . Article CARDINAL of the CCrP insofar as relevant provides :","\u201c In a case received from the prosecutor [ with the bill of indictment ] , the judge in a preliminary hearing shall resolve the following questions :","... CARDINAL ) whether there are any reasons to change , terminate or apply a preventive measure . \u201d","Article CARDINAL of the ORG reads as follows :","\u201c A preparatory hearing shall be held within DATE or , in complex cases , DATE of receipt of the case - file by the court . \u201d","Article CARDINAL of the ORG provides :","\u201c If forensic medical or psychiatric examination necessitates long - term monitoring or assessment of the suspect , the court , on the investigator \u2019s request and with the prosecutor \u2019s authorisation , may order the suspect \u2019s commitment to the relevant medical institution . \u201d","Article CARDINAL of the ORG provides :","\u201c An appeal may be lodged against :","... CARDINAL ) a court order concerning the application of ... compulsory medical treatment . \u201d","According to LAW CCrP :","\u201c An appeal against a judgment , ruling or order of a first instance court ... may be filed within DATE of its adoption ... \u201d","Article CARDINAL of the CCrP reads as follows :","\u201c The court order or ruling shall become final and enforceable upon the expiry of the time - limit for appeal . \u201d","Articles CARDINAL ( FAC for the application of measures of compulsory medical treatment ) and CARDINAL ( Termination or modification of the applicable compulsory measures of medical treatment ) of the CCrP are set out in the PERSON judgment ( cited above , \u00a7 DATE ) .","Article CARDINAL provides as follows :","\u201c An appeal or cassation appeal or an appellate or cassation petition by the prosecutor ( \u0430\u043f\u0435\u043b\u044f\u0446\u0456\u0439\u043d\u0435 \u0447\u0438 \u043a\u0430\u0441\u0430\u0446\u0456\u0439\u043d\u0435 \u043f\u043e\u0434\u0430\u043d\u043d\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 ) against a ruling or resolution adopted by a judge or a court in the manner laid down by this LAW , shall be entered in the ordinary manner . \u201d","DATE . According to LAW CCrP :","\u201c Pre - trial investigation in cases concerning illegal acts committed by persons who are not criminally responsible or who bear only limited criminal responsibility , as well as in cases concerning offences committed by persons who become mentally ill after the events in question but before the imposition of the sentence , shall be conducted by the investigating authorities pursuant to the rules set out in ORG CARDINAL and CARDINAL of the present Code .","Following the completion of the pre - trial investigation , if the alleged offender is found to have no , or limited , criminal responsibility , the investigator shall draw up a ruling requesting the court to commit the person for compulsory medical treatment ... This ruling shall be sent to the prosecutor . \u201d","Article CARDINAL of the ORG reads as follows :","\u201c Having received a case with the ruling under LAW , the prosecutor :","CARDINAL ) NORP if he agrees with the ruling , shall confirm it and transmit the case to the court ;","CARDINAL ) NORP if he finds that the ... collected evidence is insufficient to reach a conclusion as to the mental condition of the accused or that the collected evidence is insufficient to prove that the illegal act was committed by the person concerned , shall return the case - file to the investigator with written instructions for further inquires . \u201d","Article CARDINAL of the CCrP insofar as relevant provides :","\u201c If the judge or the president of the relevant court who received the case - file with the request for compulsory medical treatment agrees with the investigator \u2019s ruling , he or she shall send the case directly for trial .","The trial in such cases shall be held in open hearing , with the obligatory participation of the prosecutor and defence lawyer , in accordance with rules laid down in LAW and CARDINAL [ Articles CARDINAL - CARDINAL ] of this Code . \u201d","According to LAW CCrP :","\u201c When it is established that a [ mentally ill ] person has committed an illegal act or a person became mentally ill after committing an offence ... the court shall commit him or her for compulsory medical measures , indicating exactly what measure should be applied . \u201d","Article CARDINAL of the ORG provides in its relevant part :","\u201c The court must suspend its examination of a case if ... it is impossible to hear the case before other civil , criminal or administrative proceedings have been terminated . \u201d","Article CARDINAL of the ORG provides that close relatives of a mentally ill person , associations , a prosecutor or a local board of tutorship may apply to the court with a view to declaring that person incapable by reason of mental disorder .","According to Article CARDINAL of the ORG a petition filed under LAW should include evidence of the mental disorder which prevents the person concerned from understanding his or her actions and conducting his or her affairs .","Article CARDINAL of the ORG empowers the court to order forensic psychiatric examination of the person concerned . In exceptional cases , when the person overtly avoids examination , the court may order his or her compulsory psychiatric examination .","Section CARDINAL of the LAW provides that :","\u201c Detained persons shall be held in ordinary cells . In exceptional circumstances ... and for medical reasons , following a reasoned decision of the relevant investigating authority or governor of the relevant pre - trial detention facility , a detainee may be placed in solitary confinement . \u201d","Section CARDINAL of the Act sets out rules governing the use of force by prison guards . Officers in pre - trial detention facilities are entitled to use physical force , police equipment and firearms against the inmates . The use of force should be preceded by a warning if the circumstances so allow . If the use of force can not be avoided , it should not exceed the level necessary for fulfilment by the officers of their duties and should be carried out so as to inflict as little injury as possible . Prison officers are entitled to use force and special equipment , including unarmed combat , handcuffs , truncheons etc . , with a view to putting an end to physical resistance , violence , outrage ( \u0431\u0443\u0439\u0441\u0442\u0432\u043e ) and opposition to the lawful directions of the administration of the detention facility when other means of achieving a legitimate objective prove ineffective .","Special police equipment and firearms must not be used on women with visible signs of pregnancy , elderly persons , persons with visible signs of invalidity or underage persons , except in the event of an assault by a group of these persons which is dangerous for the lives of the prison officers or others .","A governor has the power to place a prisoner in a disciplinary cell where this is necessary to put an end to physical resistance , violence , outrage and opposition to the lawful directions of the administration .","The choice of the means to be used and the time and intensity of their use depends on the circumstances , the nature of the wrongdoing and the personal characteristics of the perpetrator .","An officer who uses force or special equipment must immediately report it to his direct supervisor and the relevant prosecutor . All persons against whom the above means have been used should be immediately examined by a medical practitioner .","The relevant provisions of the LAW are quoted in the case of PERSON ( cited above , \u00a7 CARDINAL ) .","Paragraph CARDINAL of the ORG enumerates the cases when special means may be used , including when they are necessary for putting an end to resistance to police officers or other persons carrying out official public order duties .","Paragraph CARDINAL of the ORG provides that decisions to use special means must be taken by an official responsible for maintening public order or by the head of the particular operation . A person taking such a decision must immediately inform his or her superiors in writing .","Paragraph CARDINAL of the ORG obliges the police officers who applied the special means to ensure immediate medical assistance to the victims .","Paragraph CARDINAL of the ORG prohibits the application of rubber truncheons to the head , neck , collar area , stomach and genitalia .","According to LAW no . CARDINAL\/CARDINAL psychiatric establishments are obliged to inform the relevant local police department of the imminent release of mentally ill persons .","The relevant extracts from Decree no . CARDINAL of ORG of DATE on the procedure for applying compulsory measures of medical treatment in psychiatric hospitals to persons who have mental illnesses and who have committed socially dangerous acts ( approved by ORG , ORG and ORG ) are set out in PERSON ( cited above , \u00a7 DATE ) .","The relevant extracts from the ORG on the procedure for applying measures of compulsory medical treatment to persons of unsound mind who have committed socially dangerous acts ( adopted by Decree No . CARDINAL of ORG ) are also quoted in the case of PERSON ( cited above , \u00a7 DATE ) .","According to LAW , force , as an element of excess of power , can be both physical and psychological . Physical force may involve , inter alia , unlawful deprivation of liberty and inflicting blows .","Section CARDINAL of the ORG provides that illegal actions constituting an excess of power fall within the scope of criminal law when they are \u201c painful or abusive \u201d , and ORG has declared that such actions are to be interpreted as \u201c painful or abusive \u201d when they inflict physical pain or moral suffering on the victim . These actions can involve , inter alia , the unlawful use of special police equipment such as truncheons and handcuffs .","The DATE Resolution was valid at the material time . In DATE it was replaced by ORG no . CARDINAL of DATE .","NORP In both Resolutions ( DATE and DATE - Sections CARDINAL and CARDINAL respectively ) ORG , interpreting domestic law regulating the types of compulsory measures of a medical character , stated that a court which orders compulsory treatment of a person against whom a preventive measure had been taken should simultaneously order the discontinuation of the preventive measure from the moment of the person \u2019s admission to a psychiatric institution .","The relevant provisions of the first and second DATE reports are set out in the GPE judgment ( cited above , \u00a7 \u00a7 DATE ) .","The relevant extracts from ORG . R ( CARDINAL ) CARDINAL on ORG ( adopted by ORG on DATE at the FAC meeting of ORG ) read as follows :","\u201c Medical services","CARDINAL . At every institution there shall be available the services of CARDINAL qualified general practitioner . The medical services should be organised in close relation with the general heath administration of the community or nation . They shall include a psychiatric service for the diagnosis and , in proper cases , the treatment of states of mental abnormality .","Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals . Where hospital facilities are provided in an institution , their equipment , furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners , and there shall be staff of suitably trained officers .","CARDINAL . NORP The medical officer shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with hospital standards , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .","NORP The medical officer shall report to the director whenever it is considered that a prisoner \u2019s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment .","Discipline and punishment","CARDINAL . Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer , after examination , certifies in writing that the prisoner is fit to sustain it .","Instruments of restraint","The use of chains and irons shall be prohibited . Handcuffs , restraint - jackets and other body restraints shall never be applied as a punishment . They shall not be used except in the following circumstances :","a. if necessary , as a precaution against escape during a transfer , provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise ;","b. on medical grounds , by direction and under the supervision of the medical officer ;","c. by order of the director , if other methods of control fail , in order to protect a prisoner from self - injury , injury to others or to prevent serious damage to property ; in such instances the director shall at once consult the medical officer and report to the higher administrative authority .","NORP The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation . Such instruments must not be applied for any longer time than is strictly necessary .","Insane and mentally abnormal prisoners","CARDINAL . Persons who are found to be insane should not be detained in prisons and arrangements shall be made to remove them to appropriate establishments for the mentally ill as soon as possible .","Specialised institutions or sections under medical management should be available for the observation and treatment of prisoners suffering gravely from any other mental disease or abnormality .","NORP The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all prisoners who are in need of such treatment . \u201d","The relevant extracts from ORG [ ORG ( DATE ) CARDINAL ] on a visit to GPE from DATE read as follows :","\u201c The ORG would point out that all mentally ill prisoners , including those serving life sentences , should be cared for and receive treatment in a hospital facility adequately equipped and with qualified staff . Forcing such prisoners to stay in prison , where they can not receive appropriate treatment for lack of suitable facilities or because such a facility refuses to accept them , is an unacceptable state of affairs . The transfer of mentally ill prisoners to an appropriate psychiatric facility should be considered a high priority . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22081","languageisocode":"ENG","respondent":"ITA","branch":"ADMISSIBILITY","date":2001,"docname":"GOLFETTO v. ITALY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr U. PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , CARDINAL DATE and DATE respectively , ORG declared CARDINAL companies , allegedly directly or indirectly administered by the applicant , insolvent .","In connection with these facts , the applicant was charged on an unspecified date with fraudulent trading and was committed for trial in ORG . At a hearing on DATE , the presiding judge of ORG questioned a witness , PERSON , who had been the official receiver in the insolvencies of the above - mentioned companies . The presiding judge asked him whether he had been previously involved , as a victim , in criminal proceedings . PERSON answered that he recently had , because someone had fired shots at the door of his house , probably as an act of intimidation . The witness added that the outcome of those proceedings was that the applicant 's son had been found guilty and had been sentenced to DATE imprisonment .","In fact , the presiding judge of ORG had also presided over the criminal proceedings against the applicant 's son , which had ended on DATE .","On DATE the applicant filed a request with ORG for the presiding judge of ORG to be removed from hearing his case ( ricusazione ) . The grounds for the request were that the presiding judge had stated his opinion on the facts of the case when not exercising his judicial functions ( Article CARDINAL para . CARDINAL ( c ) of LAW ) or , in the alternative , that he had stated his opinion on the facts of the case before the end of the proceedings ( LAW para . CARDINAL ( b ) of the same Code ) .","On DATE ORG rejected the applicant 's request as manifestly ill - founded . The applicant appealed against that decision to ORG . On DATE the latter court rejected the applicant 's appeal .","On DATE ORG found the applicant guilty of fraudulent insolvency and sentenced him to DATE imprisonment and DATE disqualification from civic office .","On DATE the applicant lodged an appeal against the above decision with ORG .","When lodging the appeal with ORG , the applicant did not explicitly refer to the alleged lack of impartiality of the first - instance judge . Before the ORG , he maintains that he did not explicitly raise such a complaint because his request for the judge to be removed had ended with a final decision of ORG rejecting it and that , in any event , in NORP law the issue of the alleged partiality of a first - instance judge was not a ground on which ORG could set aside a first - instance judgment .","According to the latest information provided by the Government , on DATE the proceedings in ORG were still pending because priority had been accorded to other proceedings . According to the Government , the first hearing should take place at DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115325","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2012,"docname":"OSTROWSKA v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;P\u00e4ivi Hirvel\u00e4;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .","The NORP Government ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , succeeded by Ms J. Chrzanowska , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant filed an application with ORG ( ORG ) ( \u201c LAW \u201d ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called \u201c EWK \u201d pension .","On DATE ORG issued a decision granting the applicant the right to an earlyretirement pension in the net amount of MONEY ( ORG ) .","On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant \u2019s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance .","The applicant appealed against the respective decisions divesting her of the right to an early - retirement pension .","On DATE ORG ( PERSON ) dismissed the appeal .","The applicant further appealed against the first - instance judgment .","On DATE the Rzesz\u00f3w Court of Appeal ( S\u0105d Apelacyjny ) dismissed the appeal . This decision was served on the applicant on DATE .","CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( \u201c the Association \u201d ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .","NORP Out of all applications lodged with the Court , CARDINAL applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .","CARDINAL applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In CARDINAL applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .","NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE , no . CARDINAL\/CARDINAL , \u00a7 DATE , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84670","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF MASLOVA AND NALBANDOV v. RUSSIA","importance":2,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens","text":["The applicants were born in DATE and DATE respectively and live in the town of GPE Novgorod .","DATE the first applicant had the status of witness in a murder case conducted jointly by the police and the prosecution .","It appears that these authorities repeatedly summoned her to give evidence to LOC ( ORG \u0440\u0430\u0439\u043e\u043d\u043d\u043e\u0435 \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b DATE \u201c the police station \u201d ) .","It also appears that at some point during the investigation suspect PERSON stated that the first applicant had been in receipt of the murdered person 's belongings .","According to the first applicant , investigator PERSON . summoned her to appear on DATE at TIME The Government submitted that the first applicant was summoned by policeman PERSON and not by investigator PERSON .","The applicants submitted the following account of events . The Government did not make any specific comments in this respect .","The first applicant arrived at the police station on time and was questioned . The interrogation was initially conducted by policemen PERSON . and PERSON and took place at office no . CARDINAL of the police station .","The policemen requested the first applicant to acknowledge that she had received property belonging to the murdered person . When the first applicant refused to do so , they started shouting and threatened to bring criminal proceedings against her . They took her soccer scarf and administered several blows with the scarf to her face .","Then PERSON left the office and PERSON . stayed there with the first applicant in private . He locked the door from the inside and went on with physical and psychological coercion . PERSON . fettered the first applicant 's hands with thumbcuffs and administered blows to her head and cheeks . He raped her using a condom and then forced her to perform oral sex with him .","Kh . was interrupted by noise in the corridor and knocking on the door . The first applicant was allowed to go to the lavatory and tidy herself up .","At TIME the first applicant was confronted with suspect PERSON In his presence , she yet again denied her involvement in the murder .","Thereafter Kh . and PERSON fettered the first applicant 's thumbs and repeatedly hit her in the stomach . They put a gas mask over the first applicant 's face and made her suffocate by shutting off access to air . Kh . and PERSON also ran electricity through wires connected to the first applicant 's earrings . The above actions were coupled with attempts to obtain a confession .","It appears that eventually the first applicant admitted having received the property in question and agreed to write her confession down on paper . Since the first applicant was in an agitated state and failed to write properly , she had to try twice . The confession was addressed to a local district prosecutor .","Kh . and PERSON then suggested that the first applicant 's mother should bring the notebook containing the phone numbers and addresses of the applicant 's friends and acquaintances .","The first applicant called her mother and at TIME the latter and the second applicant came to the police station and brought the required notebook . The first applicant 's mother and the second applicant stayed in a lobby near office no . DATE .","At TIME , an investigator from a local prosecutor 's office , came to office no . CARDINAL . He learned from the first applicant that she was a NORP GPE soccer fan and started to insult her and administer blows to her head with the second applicant 's own scarf , requiring her to curse this club .","Some time later Kh . brought the first applicant to office no . CARDINAL of the prosecutor 's office for LOC of the city of GPE PERSON ( PERSON \u0440\u0430\u0439\u043e\u043d\u0430 \u0433. PERSON \u2013 \u201c the local prosecutor 's office \u201d ) which was situated in the same building as the police station .","Zh . , an investigator of the local prosecutor 's office , interrogated the first applicant in connection with her confession .","NORP In order to put additional pressure on her the investigators simultaneously arrested and detained her mother . It appears that the first applicant 's mother spent TIME in detention .","According to the second applicant , around TIME investigator PERSON was in the lobby and saw the second applicant . S. rudely demanded the second applicant to leave the building , kicked him on the hip , pushed him towards the exit , then caught up with him and forced him into office no . DATE in which there were CARDINAL unidentified policemen .","Then PERSON locked the door from the inside , hit the second applicant in his trunk several times and dealt a few blows to the second applicant 's head and trunk with his own ORG soccer scarf .","S. brought the second applicant to office no . CARDINAL and , in presence of PERSON . and investigator PERSON , went on beating the second applicant , requiring him to curse the CSKA GPE soccer club . When the second applicant refused , PERSON put the scarf around his neck and started to suffocate the applicant , simultaneously hitting him on the trunk . The second applicant eventually capitulated .","Thereafter M. , Zh . and PERSON . sent the second applicant to a nearby shop to buy alcohol , cigarettes and food and upon his return he was expelled from the building .","Around TIME , PERSON came to office no . CARDINAL in which investigator Zh . was finalising the interrogation of the first applicant . They did not let the first applicant out after the questioning was over and started to drink alcohol . According to the first applicant , her requests to leave were denied .","Upon her request , the first applicant was escorted to the lavatory on the third floor of the building where she unsuccessfully tried to cut the veins of her left wrist .","She returned to office no . CARDINAL and for TIME she was raped by PERSON . , PERSON It appears that they used condoms and that following the rape they cleaned the place with wipes . It appears that PERSON . had left the office upon the first applicant 's return from the lavatory and had not taken part in the rape .","At TIME left and during TIME Zh . and PERSON went on raping the first applicant . Around TIME they released her .","At TIME the first applicant reached the place of her acquaintance ORG . Shortly later she was joined by ORG and ORG . After a talk , ORG called the first applicant 's parents and told them that GPE and GPE would follow the first applicant to a hospital .","At TIME on DATE they arrived at hospital no . DATE and the first applicant told an assistant nurse that she had been raped in the police station . The nurse and the doctor did not examine the applicant and advised her to address herself to a bureau of forensic examination . The applicant refused because the bureau was located too close to the police station . She was then advised to go to a bureau in a different district . It does not appear that the first applicant did so .","It appears that on DATE the first applicant applied to the prosecutor 's office alleging that she had been tortured and raped . The GPE prosecutor 's office ( \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0433. PERSON ) opened a criminal case in this connection and carried out an investigation . The second applicant had the status of crime victim in this case .","On DATE Kh . , Zh . , PERSON were charged with commission of crimes punishable under LAW , CARDINAL and CARDINAL of LAW .","On DATE the bill of indictment was signed and the case against Kh . , Zh . , PERSON transferred to LOC of the city of GPE PERSON ( PERSON \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u0441\u0443\u0434 \u0433. PERSON \u2013 \u201c the ORG \u201d ) for trial .","The bill of indictment stated that PERSON . was accused of having tortured and raped the first applicant , ill - treated the second applicant , abused the office and discredited the authority ( see the episodes described in paragraphs CARDINAL , DATE , DATE and CARDINAL - CARDINAL above ) . Zh . was charged with having raped and sexually abused the first applicant , abused the office and discredited the authority ( see paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL ) . As to S. , he was accused of having ill - treated the first and second applicant and abused and discredited the authority ( see paragraphs CARDINAL - CARDINAL and DATE ) , raped and sexually abused the first applicant and abused and discredited the authority ( see paragraphs CARDINAL - CARDINAL ) . PERSON was charged with having raped and sexually abused the first applicant and abused and discredited the authority ( see paragraphs CARDINAL - CARDINAL ) . The alleged criminal acts of the accused were characterised under Articles CARDINAL - CARDINAL , CARDINAL ( b ) , CARDINAL - CARDINAL , CARDINAL ( b ) and CARDINAL ( a , b ) , respectively , of LAW .","It appears that the accused denied their involvement in the crimes in question , kept silent and refused to give urine or sperm for examination .","NORP The findings in the bill of indictment were principally made on the basis of evidence given by the first and second applicants , who had identified the alleged offenders and gave a very detailed account of events .","The bill also referred to the statements of witness PERSON , who heard the screams of PERSON . and moans of the first applicant and then saw that the first applicant was tear - stained and demoralised . B. also cited the statement of PERSON . who had allegedly said that the first applicant had \u201c cracked \u201d and admitted everything .","There were also statements of witnesses ORG , ORG and GPE , the assistance nurse and the doctor , the parents of the first applicant , the mother of the second applicant and an employee of the shop who had sold the food and alcohol to the second applicant ( see paragraph CARDINAL above ) .","The other evidence also included the items obtained through searches carried out on the premises of the police station and the prosecutor 's office , the first applicant 's handwritten statement of a self - incriminating character which had been described by an expert as having been written by \u201c a shaking hand \u201d ( see paragraph CARDINAL ) , the medical confirmation of the first applicant 's attempts to cut her veins ( see paragraph CARDINAL ) , the report of the forensic examinations and other evidence . It appears that several other people who had previously been prosecuted and whose criminal cases had been dealt with by the accused gave evidence confirming that the accused had used torturing devices , such as a gas mask , electric wires and a fettering device .","According to forensic examination no . CARDINAL of DATE , the clothes that PERSON . had worn on DATE bore traces of cells of vaginal epithelium of the same antigen group as the first applicant 's . The investigation also established that PERSON . and his spouse had a different antigen group .","During the search carried out at the LOC on DATE the investigative authority discovered CARDINAL used condoms , CARDINAL in the yard of the police station and the other on the cornice under the window of office no . CARDINAL of the prosecutor 's office .","It appears that CARDINAL of the discovered condoms was suitable for forensic examination . The genomic examination revealed the presence of vaginal cells belonging , with a probability of PERCENT , to the first applicant and spermatozoids and cells of male urethra .","The same search also led to the discovery of CARDINAL wipes in the yard of the police station bearing traces of sperm .","Furthermore , the forensic examination established that the first applicant 's clothes which she had allegedly worn on DATE bore traces of sperm .","DATE . During a preliminary examination of the case on DATE counsel for the accused pointed to various procedural defects in the investigation and applied to have the case remitted for additional investigation .","On DATE ORG granted the application and remitted the case for additional investigation .","The court ruled that the investigative authorities had committed serious breaches of domestic procedure during the investigation which had infringed the rights of the accused and rendered most of the evidence in the case inadmissible .","In particular , the decision noted numerous inaccuracies and deficiencies in the handling of the case , including disregard of a special procedure for opening an investigation in respect of prosecution officers and the fact that Kh . , Zh . , PERSON had not enjoyed the procedural status of accused persons until DATE , which meant that almost all investigative actions ( searches , interrogations , identification parades , expert examinations , etc . ) prior to that date had been carried out in breach of their defence rights and rendered the respective evidence inadmissible .","The decision of ORG of DATE was upheld on the prosecutor 's appeal by ORG ( ORG \u2013 \u201c the Regional Court \u201d ) on DATE .","On an unspecified date in DATE the first applicant 's counsel brought an appeal against the decisions of DATE and CARDINAL October CARDINAL to the ORG of ORG , requesting that they be re - examined by way of supervisory review .","On DATE counsel lodged a similar appeal with ORG of GPE ( MONEY \u2013 \u201c the ORG \u201d ) .","Having examined the case file , on DATE the ORG of ORG declined the applicants ' request for re - examination of the decisions by way of supervisory review .","It appears that a similar decision was taken by ORG on DATE .","On DATE ORG ( NORP \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 ) examined the case , found that the charges were essentially based on the first applicant 's incoherent and inconclusive submissions , that the evidence in the case taken as a whole was inconsistent , and concluded that no strong evidence against the accused had been collected during the investigation .","It also had regard to the conclusions in the court decisions of CARDINAL DATE and DATE and noted that \u201c the repetitive breaches of law and , in particular , the failure to respect the procedures and rules governing the institution of criminal cases in respect of special subjects \u2013 investigators of the prosecutor 's office \u2013 created no judicial perspective [ for the case ] since it appeared impossible to remedy the breaches committed during the investigation \u201d . For these reasons it was decided to discontinue the criminal proceedings . The decision stated that the first applicant and the accused were to be notified and that the decision could be appealed against to a higher prosecutor 's office .","By a letter of DATE ( No . CARDINAL - CARDINAL - CARDINAL ) ORG office responded to the first applicant 's appeal against the decision of DATE fully deferring to its reasons and conclusions . The letter did not mention the possibility of appeal against the decision in a court .","According to the ORG , the investigation in this case was repeatedly resumed and discontinued .","On DATE ORG annulled its decision of DATE to discontinue the criminal proceedings and submitted the case for additional investigation . It mentioned the lack of legal characterisation of the acts committed in respect of the second applicant as a drawback of that decision .","On DATE the local prosecution office terminated the investigation in the criminal case , referring to the lack of evidence of any crime and the failure to prove the involvement of the police and prosecution officials .","It appears that this decision was subsequently annulled , but on DATE the local prosecutor 's office again terminated the proceedings on the ground of lack of evidence of a crime .","On DATE the first applicant 's counsel challenged the decision of DATE before ORG . In a judgment of DATE ORG upheld the decision , fully deferring to its reasons . The judgment was upheld on appeal on DATE by ORG .","On DATE ORG office yet again decided to resume the proceedings in the case .","According to the applicant , on DATE the proceedings were yet again closed .","DATE . The Government submitted that on CARDINAL DATE the proceedings in the case had been resumed . This decision was appealed against by the accused . On DATE ORG quashed the decision to resume the proceedings as unlawful . ORG upheld ORG decision on DATE . Thereafter the Deputy Prosecutor General lodged a supervisory review request in respect of the decisions of CARDINAL DATE and DATE .","On DATE ORG , sitting as a supervisory review instance , examined and rejected the prosecutor 's request , but noted that the decision of DATE had been adopted by an unlawful composition of judges and remitted the case to ORG for a fresh examination on appeal .","NORP The outcome of these proceedings remains unclear , but no further steps appear to have been taken in respect of the criminal case against the policemen and investigators .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL ( b ) of LAW of GPE punishes the offence of rape committed by a group , whether or not organised and with or without prior conspiracy , with imprisonment DATE .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL ( b ) punishes forced sexual acts committed by a group , whether or not organised and with or without prior conspiracy , with DATE of imprisonment .","Article CARDINAL \u00a7 CARDINAL ( a , b ) punishes abuse of office committed with use of force or threat to use force , with or without the use of arms or other special devices with imprisonment DATE .","\u201c A witness shall be called for interrogation by a written notice served on him personally or , in his absence , on an adult member of his family ...","The notice shall contain the name of the person called as a witness , indicating where , before whom , on what date and at what time he is required to appear and the consequences of failure to appear . A witness may also be called by means of telephone or cable . \u201d","\u201c The interrogation of a witness shall be conducted at the place of the investigation . An investigator may decide to interrogate a witness at the location of that witness . \u201d","Under Articles CARDINAL and CARDINAL of LAW , a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities ' own motion . LAW stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party . During the investigation the victim could submit evidence and lodge applications , and once the investigation was complete the victim had full access to the case file .","Under Articles CARDINAL and CARDINAL of the Code , a prosecutor was responsible for overall supervision of the investigation . In particular , the prosecutor could order a specific investigative measure to be carried out , the transfer of the case from CARDINAL investigator to another , or the reopening of the proceedings .","DATE . Under LAW , the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime . Such a decision was subject to appeal to the senior prosecutors or the court . The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete .","Article CARDINAL of the Code provided that the case could be reopened by the prosecutor \u201c if there were grounds \u201d to do so . The only exception to this rule was for cases where the time - limit for prosecuting crimes of that kind had expired .","LAW provided that , as a general rule , the information obtained in the course of the investigation was not public . The disclosure of that information might be authorised by the prosecuting authorities if disclosure did not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings . The information concerning the private life of the parties to the proceedings could not be made public without their consent .","Section CARDINAL of ORG . CARDINAL of ORG of DATE sets out a special procedure for bringing administrative and criminal proceedings against officials of the prosecution authorities . In particular , the officials who have the right to initiate such proceedings are exhaustively listed .","The Civil Code of GPE , which entered into force on DATE , provides for compensation for damage caused by an act or failure to act on the part of the ORG ( Article CARDINAL ) . Articles CARDINAL and CARDINAL - FAC of the Civil Code provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated for irrespective of any award for pecuniary damage ."],"violated_articles":["3","38"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23114","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2001,"docname":"KOZLOVA and SMIRNOVA v. LATVIA","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicants , PERSON and PERSON , are \u201c permanently resident non - citizens \u201d of GPE , born in DATE and DATE respectively and living in GPE ( GPE ) . They were represented before the ORG by Mr PERSON PERSON , a lawyer practising in GPE .","In DATE the NORP ORG sold to a certain O.A.R. a plot of land CARDINAL sq . m in area with a semi - detached DATE house , located in PERSON ( in the suburbs of GPE ) . After O.A.R. \u2019s death in DATE , the property passed to his daughter , GPE","In DATE fear of NORP persecution forced GPE to go into exile in the LOC and abandon her property . The house was also considerably damaged during DATE .","In a decision of CARDINAL DATE the executive committee of ORG granted the right to use the above - mentioned land to Colonel PERSON ( the applicants\u2019 father ) and Lieutenant Colonel PERSON , and calculated the actual value of the building on it . On DATE Mr S. and PERSON purchased the house by paying the tax authorities the sum of MONEY . In DATE and B. rebuilt the house .","In a decision of CARDINAL DATE the municipal authorities granted PERSON definitive right to use the land . However , on DATE those authorities divided the land into CARDINAL parts , CARDINAL of which were allocated to PERSON the third of which was placed in public ownership .","On DATE the municipality \u2019s executive council divided the house into CARDINAL parts and registered them as CARDINAL separate properties with different numbers . The title to CARDINAL of the parts was granted to the heirs of PERSON , who had died DATE ; title to the other CARDINAL was granted to PERSON \u2019s former wife .","In DATE the applicants were recognised as the heirs to equal portions of their ORG estate .","On DATE after GPE had regained its independence , ORG padome ) enacted the PERSON on the Return of Real Estate to ORG ( NORP \u201c ORG nam\u012bpa\u0161umu atdo\u0161anu likum\u012bgajiem \u012bpa\u0161niekiem \u201d ) .","On DATE , in response to an application by O.A.R. \u2019s grandson , ORG restored ownership of the land in issue to ORG That decision did not , however , cover the buildings erected on the land .","In DATE A.R. asked ORG to set aside all the decisions taken in relation to the semi - detached house during the NORP period and recognise him as the legitimate owner .","In a judgment of DATE delivered after adversarial proceedings ORG allowed PERSON \u2019s application . The ORG noted first of all that although the house in issue had never been formally expropriated , it was covered by section CARDINAL of the PERSON on the Return of Real Estate to ORG , which excluded property abandoned for fear of persecution from the category of res nullius ( the property of nobody ) . The taking of possession of the property by the NORP local authorities in DATE had therefore been arbitrary and illegal , especially as it had not been based on any judicial decision . Furthermore , ORG pointed out that section CARDINAL of the aforementioned law precluded the return of items of property sold to private individuals acting in good faith by means of contracts certified by a notary . However , it noted that there had been no such contract in the instant case . Lastly , ORG rejected the ORG argument that the disputed house had been completely rebuilt by their father and was in fact a new item of property . In that connection , the ORG considered on the basis of the evidence produced that the repairs carried out ( the replacement of doors , windows and roofing and repairs to some of the walls ) were not sufficient to warrant the assertion that the initial building no longer existed and that PERSON had built a new house . Consequently , ORG declared the decision of CARDINAL DATE and all subsequent measures relating to the building null and void and ordered that it be returned to A.R.","The applicants appealed against that judgment to ORG of ORG , which , in a judgment delivered on DATE following adversarial proceedings , dismissed PERSON \u2019s application on the ground that the documents he had submitted were not sufficient to prove O.A.R. \u2019s title to the disputed house .","In a judgment of CARDINAL March CARDINAL ORG , ruling on an appeal on points of law lodged by PERSON , quashed the aforementioned judgment and remitted the case to ORG . According to ORG , as a building was in principle an adjunct to the land on which it was built , the house in question should , in the absence of any evidence to the contrary , have been considered to have belonged to the owner of the land , namely O.A.R.","In a judgment of CARDINAL DATE ORG of ORG allowed PERSON \u2019s application . Having established that the semi - detached house had indisputably belonged to O.A.R. , ORG ruled as follows :","\u201c ... Section CARDINAL of the PERSON on the Return of Real Estate to the Legitimate Owners provides that an item of property abandoned by its owner following the events of the Second World War , particularly in order to avoid persecution or other adverse consequences , can not be classed as res nullius .","It appears from the documents in the case file that in DATE , after the death of his grandmother , the appellant and his family left GPE to escape potential oppression .","The case file does not contain any information attesting to the legal basis for the taking of possession of the property by the executive committee ... . No judgment was adopted regarding a res nullius . ...","... [ T]he ORG considers that by taking possession of the disputed property without paying any compensation and by making use of it subsequently , the municipality infringed the rights of the legitimate owner and adopted a policy of administrative arbitrariness .","Under section CARDINAL of the PERSON on the Return of Real Estate to ORG , no court order can be made for the return of items of property acquired against payment by natural persons acting in good faith and on the basis of contracts certified by a notary .","The file does not contain any evidence that the property came into the ownership of [ S. ] and [ B. ] on the basis of an official conveyance certified by a notary . ...","That being so , ORG considers that [ B. ] and [ S. ] can not be regarded as purchasers acting in good faith within the meaning of section CARDINAL of the PERSON on the Return of Real Estate to ORG . ...","Since [ S. ] can not be deemed to have purchased the house in good faith , ORG considers the certificate of succession to the estate issued to PERSON [ and ] PERSON ... to be null and void ... \u201d","The applicants appealed on points of law against the above judgment cited above to ORG of ORG . In a judgment of DATE ORG , ruling as an extended bench of CARDINAL judges , rejected that appeal , upholding the reasons given by ORG .","The relevant provisions of the PERSON of DATE on the Return of ORG to ORG ( NORP \u201c ORG nam\u012bpa\u0161umu atdo\u0161anu likum\u012bgajiem \u012bpa\u0161niekiem \u201d ) provide as follows :","\u201c Title to immovable property of which the ORG or legal persons took possession without paying compensation during the period DATE , as part of a policy which infringed the rights of owners and was tainted by administrative arbitrariness , shall be restored to the former owners or their heirs irrespective of their present nationality . \u201d","\u201c The property rights of former owners or their heirs who have lodged an application shall be restored by a court order in accordance with the provisions of LAW . ... \u201d","\u201c ... [ T]he courts may declare null and void measures taken by administrative authorities putting an end to or restricting a lawful right to property . \u201d","\u201c Immovable property that has come into the ownership of natural persons acting in good faith against payment and on the basis of contracts certified by a notary may not be returned ...","In this case , the former owner ( or his heir ) has the right to demand from the vendor who acquired the property compensation up to the price laid down in the contract of sale ; compensation corresponding to the real value of the property must be paid as provided by law . ... \u201d","\u201c Immovable property which had to be abandoned by its owner following the military operations of the Second World War , particularly in order to avoid potential repression or other adverse consequences , may not be regarded as res nullius . ... \u201d","\u201c Where the immovable property eligible to be claimed by means of a judicial remedy has not survived ... , former owners ( or their heirs ) are entitled to compensation as provided by law .","Immovable property which , after DATE , has been rebuilt in such a way that most of it ( CARDINAL percent ) amounts to a new building , shall also be considered not to have survived in substance . Where the construction or reconstruction has been carried out in breach of the requirements of a law or regulation or by an occupier acting in bad faith , that fact may not be relied on to dismiss an application for restitution of the property . \u201d","In a judgment of DATE ( case no . SKC-CARDINAL ) ORG held that a decision taken by the municipal authorities in DATE whereby a private individual was granted title to an expropriated house provided that he paid a sum to the tax authorities corresponding to the value of the building was equivalent to a \u201c contract certified by a notary \u201d within the meaning of section CARDINAL of the PERSON .","The relevant provisions of the NORP Civil Code ( Latvijas PERSON ) read as follows :","\u201c The claimant must prove that he has title . For this purpose , it is sufficient for him to show that he genuinely acquired that title in a legal manner ; it is subsequently for the defendant to prove that the claimant is no longer the owner .","Where the claimant maintains that he acquired the property from a third party through delivery or inheritance , he must prove that his predecessor was the owner . \u201d","\u201c The defendant may have the application dismissed if he proves that he has title to the property or the right to possess it on the basis of a right in rem or a right in personam which the claimant must respect . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57606","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1971,"docname":"CASES OF DE WILDE, OOMS AND VERSYP (\"VAGRANCY\") v. BELGIUM","importance":2,"conclusion":"Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;No violation of Art. 3;No violation of Art. 8;No violation of Art. 13;Just satisfaction reserved","judges":"","text":["The purpose of the ORG \u2019s application is to submit the ORG , Ooms and PERSON cases for judgment by ORG . On several points the Government therein expresses its disagreement with the opinion stated by ORG in its report .","The facts of the CARDINAL cases , as they appear from the said report , the memorials of the Government and of the Commission , the other documents produced and the addresses of the representatives appearing before the ORG , may be summarised as follows :","PERSON , a NORP citizen , born on CARDINALth DATE at ORG , spent a large part of his childhood in orphanages . On coming of age , he enlisted in the NORP army ( ORG ) in which he served for DATE . As a holder of books for a MONEY war disablement pension and a military retirement pension , he draws from the NORP authorities a sum which in DATE amounted to CARDINAL BF CARDINAL . He has work , from time to time at any rate , as an agricultural labourer .","The applicant reported on DATE at TIME to the police station at GPE and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as ORG at Charleroi had refused him an advance on DATE of his pension due on DATE He also stated that he had \" never \" up to then \" been dealt with as a vagrant \" . On DATE at TIME , Mr. PERSON , deputy superintendent of police , considered that PERSON was in a state of vagrancy and put him at the disposal of the public prosecutor at PERSON ; at the same time , he asked the competent authorities to supply him with information about ORG . TIME , after being deprived of his liberty since TIME , PERSON attempted to escape . He was immediately caught by a policeman and he disputed the right of the police to \" keep him under arrest for TIME \" . He threatened to commit suicide .","The information note , dated DATE , showed that DATE and DATE the applicant had had CARDINAL convictions by courts of summary jurisdiction or police courts and that , contrary to his allegations , he had been placed at the ORG \u2019s disposal CARDINAL times as a vagrant .","On DATE , at TIME , the police court at GPE , after satisfying itself as to \" the identity , age , physical and mental state and manner of life \" of PERSON , decided , at a public hearing and after giving him an opportunity to reply , that the circumstances which caused PERSON to be brought before the court had been established . In pursuance of LAW of LAW of DATE \" for the suppression of vagrancy and begging \" ( \" LAW \" ) the court placed the applicant \" at the disposal of the Government to be detained in a vagrancy centre for DATE \" and directed \" the public prosecution to execute the order \" .","After being first detained at the institution at ORG and then from DATE at that of PERSON , PERSON was sent on CARDINALth DATE to the medico - surgical centre at FAC from where he was returned to PERSON on DATE . On DATE , he was transferred to the disciplinary prison at GPE for refusal to work ( Section CARDINAL , sub - section CARDINAL , of the CARDINAL Act ) , and on CARDINALnd DATE to that of PERSON to appear before the criminal court which , on DATE , sentenced him to CARDINAL months\u2019 imprisonment for theft from a dwelling house . He was returned to ORG shortly afterwards .","On DATE May and CARDINALth DATE , that is , DATE after his arrest and DATE after sending his first letter to ORG ( CARDINALrd DATE ) , the applicant wrote to the Minister of ORG invoking Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW . He underlined the fact that on DATE he had received CARDINAL BF in respect of his pension and showed surprise that he had not yet been released . He also complained of being forced to work for the TIME wage of CARDINAL BF . He added that he had refused to work in protest against the behaviour of the head of the block at PERSON who had wrongfully claimed to be entitled to \" take \" from him PERCENT of his pension . Finally , he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence . On DATE , ORG requested the governor of the prison at PERSON to inform PERSON \" that his request for release \" of CARDINALst May would \" be examined in due course \" .","The applicant took up his complaints again on DATE and later on DATE . In this last letter , he enquired of the Minister why he had been transferred to the prison at GPE . He also pointed out that there was no work available at this institution which would enable him to earn his \" release savings \" . On DATE , ORG had him notified that his release before the prescribed period had expired could \" be considered \" \" provided that his conduct at work ( was ) satisfactory \" and \" adequate arrangements for rehabilitation ( had ) been made \" .","ORG wrote again to the Minister on CARDINALth DATE . Due to his pension , he argued , he had \" sufficient money \" ; in any case , \" the results of ( his ) work \" already amounted to CARDINAL BF . As regards his rehabilitation , he stated that his detention made it \" impossible \" ; it prevented him from corresponding freely with employers and the welfare officer had failed to help him . Nevertheless , on DATE , ORG considered that his application \" ( could ) not at present be granted \" .","On DATE , the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm .","On CARDINALth and DATE , ORG decided that , at the expiry of the sentence he had received on DATE , the applicant could be released once his rehabilitation seemed ensured by ORG of Charleroi ( LAW of LAW ) .","ORG regained his freedom at GPE on DATE . His detention had lasted DATE , of which DATE were spent serving the prison sentence .","According to a report of ORG , the applicant received only one disciplinary punishment between the beginning of his detention ( DATE ) and the date of his application to ORG ( DATE ) : for refusal to work at PERSON , he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to GPE .","In his application lodged with ORG on DATE ( No . CARDINAL\/CARDINAL ) ORG invoked Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the Convention . He complained in the first place of his \" arbitrary detention \" ordered in the absence of any offence on his part , without a conviction and in spite of his having financial resources . He also protested against the \" slavery \" and \" servitude \" which , in his view , resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions .","The Commission declared the application admissible on DATE ; prior to this , the Commission had ordered the joinder of the case with the applications of PERSON and PERSON .","On DATE at TIME , PERSON , a NORP citizen born on DATE at ORG , reported to Mr. PERSON , deputy superintendent of police at GPE , in order \" to be treated as a vagrant unless one of the social services ( could find him ) employment where ( he could ) be provided with board and lodging while waiting for regular work \" . He explained that of late he had been living with his mother at GPE but that she could no longer provide for his upkeep ; that he had lost a job as a scaffolding fitter at GPE and , in spite of his efforts , had failed to find another job for over a month ; that he no longer had any means of subsistence and that he had been \" convicted \" in DATE for vagrancy by the police court at GPE .","On DATE at TIME , the police court at GPE , after satisfying itself as to \" the identity , age , physical and mental state and manner of life \" of PERSON , considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established . In pursuance of LAW of LAW , the court placed him \" at the disposal of the Government to be detained in an assistance home \" and directed \" the public prosecution to execute this order \" .","Ooms was detained partly at ORG and partly at PERSON . He also spent DATE at the prison medico - surgical centre at FAC ( DATE ) .","On DATE , that is DATE after his arrest and DATE before applying to the Commission ( CARDINALth DATE ) , the applicant petitioned the Minister of ORG for his release . He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium . On CARDINALth May , ORG , after receiving the unfavourable opinion of the doctor and of the director of the institution at PERSON , considered the request to be premature .","PERSON again made a petition for release on DATE , this time to the Prime Minister . He pleaded that as \" he had been ill since his detention \" he had been unable to earn by his own work the CARDINAL BF needed to make up his release savings , and repeated that his mother was willing to have him with her and to take care of him . ORG , to whom the Prime Minister \u2019s office had transmitted the request , also considered it to be premature ; on DATE , it requested the governor of GPE prison to inform the applicant accordingly .","On DATE , the welfare department of ORG at GPE certified that PERSON would \" be given work and lodging in ( their ) establishments immediately on his release \" . The applicant sent this declaration to the director of the welfare settlement at ORG on DATE , but without result .","His mother , PERSON . Ooms , confirmed her son \u2019s declarations by letter of DATE to the same director . In his reply of DATE , the director asked her to produce a certificate of employment , pointing out that \" at the time of his possible discharge \" , the applicant had to have , besides a resting place , \" a definite job by which he ( could ) ensure his upkeep \" .","PERSON . Ooms also wrote to the Minister of Justice on DATE , asking for a \" pardon for ( her ) son \" . On CARDINALrd DATE , ORG informed her that he would be freed when \" he ( had ) earned , by his prison work , the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government \" .","In a report of DATE drawn up for ORG , the director of the ORG settlement pointed out that PERSON had already received several criminal convictions , that this was his fourth detention for vagrancy , that his conduct could not be described as exemplary , and that his earnings amounted to CARDINAL BF . According to a medical certificate appended to the report , physical examinations of the applicant had revealed nothing wrong . As a result , on DATE , ORG instructed the director to inform the detainee \" that his complaints had been found groundless \" .","On DATE , Ooms again petitioned the Prime Minister . To justify this step , he cited the negative attitude of ORG . He stated that he was the victim of \" monstrous injustices \" which he attributed to his being a PERSON . He alleged , in particular , that on DATE , at PERSON , he had been punished with DATE in the cells and a DATE \u2019s confinement without privileges for refusing to sleep in a foul - smelling dormitory where the light was kept on TIME , that he had been locked up naked and later \" lightly clad \" in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend DATE in the sanatorium at the PERSON institution . He also protested against the dismissal of the many petitions for release presented both by himself and by his mother . He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action , if necessary , before a \" national authority \" within the meaning of LAW ( LAW ) of the LAW .","DATE , the Prime Minister \u2019s office informed the applicant that his letter had been transmitted to ORG .","Ooms was released ex officio at GPE on DATE , DATE to DATE after being put at the disposal of ORG , first sentence , of LAW ) .","In his application lodged with the Commission on DATE ( No . PERSON ) , the applicant mentioned that he was in the sanatorium of the PERSON institution but that his mother had agreed to have him hospitalised in a \" civil \" clinic . He added that his illness completely prevented him from working and thereby earning the CARDINAL BF for his release savings ; in any case , he would need DATE to earn such a sum , at the rate of CARDINAL BF per hour . He was therefore surprised that ORG had considered his request for release to be premature .","Ooms , who had meanwhile been transferred to the prison at FAC , supplemented his original application on DATE . He declared that he had for the moment been cured of his pulmonary disease caused by ill - treatment and undernourishment , but his illness had left \" traces \" which made it impossible for him to perform \" any heavy work \" . He also stressed that his mother , who was in receipt of a pension , wanted him home with her . In these circumstances he considered he was entitled to be released , and he complained of the NORP authorities\u2019 refusal to recognise this right . Invoking DATE , paragraph ( CARDINAL ) ( b ) and ( c ) ( article CARDINAL - CARDINAL-b , article DATE ) , of the LAW he further maintained that on his arrest he had asked in vain for free legal aid ; this fact was contested before the ORG by ORG .","That part of the application where PERSON complained \u2013 apparently in subsequent letters - of ill - treatment and of a violation of his liberty of conscience and religion ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) was declared inadmissible on CARDINALth DATE as manifestly ill - founded ( PERSON to the ORG \u2019s report ) . On DATE , the Commission declared the remaining part of his application admissible , after having ordered its joinder with the applications of PERSON and PERSON .","PERSON , a NORP citizen born in GPE on DATE , works , at least from time to time , as a draughtsman ; he seems to have had his residence at PERSON .","On DATE , at TIME , he appeared before Mr. PERSON , deputy superintendent of police at GPE ; he carried a letter from ORG requesting that he be given a TIME \u2019s shelter . He stated he had no fixed abode , no work or resources , and \" ( begged ) to be sent to a welfare settlement \" ; he pointed out that he had \" previously ( been ) in PERSON \" and did not wish for \" any other solution \" . After spending the night in the municipal lock - up , where he had already been TIME , he was taken in charge by ORG on DATE at TIME On DATE , this office certified that so far as its services were concerned there was no objection to Versyp \" being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement \" : he was \" well - known to both ( the ) after - prison care and vagrancy sections \" at the office and attempts so far to rehabilitate him had failed due to \" his apathy , idleness and weakness for drink \" ; in any case , he refused \" any other welfare action \" , except his detention . As a result , PERSON was immediately put at the disposal of the public prosecutor \u2019s office .","TIME , the police court in GPE , having satisfied itself as to \" the identity , age , physical and mental state and manner of life \" of the applicant , considered , at a public hearing and after giving PERSON an opportunity to reply , that the circumstances which had caused him to be brought before the court had been established . In pursuance of LAW of LAW , the court placed him \" at the disposal of the Government to be detained in a vagrancy centre for DATE \" . It entrusted the execution of this order to the public prosecutor , who on that DATE , CARDINALth DATE , required the director of the vagrancy centre of PERSON to receive PERSON into his institution .","PERSON was detained at different times at ORG , PERSON and GPE .","On DATE , that is DATE after his arrest and DATE before applying to the Commission ( CARDINALth DATE ) , he wrote from ORG to the Minister of ORG requesting his transfer to the solitary confinement division in PERSON . His request was not transmitted to GPE due to the imminent visit of the inspector - general who granted his request DATE .","On DATE , the applicant requested his transfer form PERSON to the prison at FAC where , he thought , the Head of ORG could succeed in getting him \" work outside \" to allow him \" to live as an honest citizen \" . He stated that living \" with other vagrants in ORG and PERSON \" had \" shattered \" his morale and that he had neglected his work as he had had to receive treatment in hospital twice ; he promised , however , to attend to \" ( his ) business outside more efficiently in order to avoid a similar situation recurring \" . In a report of CARDINALth May , the director of the PERSON institution pointed out that PERSON , who had CARDINAL criminal convictions and had been detained CARDINAL times for vagrancy , had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life ; the director therefore suggested his transfer to a solitary confinement prison ( op zijn QUANTITY een celgevangenis ) , in accordance with his request . As a result , he was sent on DATE May to ORG and not to that of GPE ; on DATE , he complained of this to ORG , which ordered his return to ORG .","On DATE , PERSON begged the Ministry to grant him the opportunity of rehabilitating himself \" in society according to ( his ) aptitudes through the good offices of ORG \" . On DATE , the authorities of the ORG settlement informed him , on the instructions of the ORG , that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work .","On DATE , the applicant protested to ORG against this reply . According to him , he had been prevented \" by devious means \" from earning anything both at ORG and ORG in order \" that ( he ) could then be held for an even longer period \" . Thus , at ORG they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do . Furthermore , they had purported to forbid him to correspond with the ORG but without success as he had invoked the regulations and informed the public prosecutor \u2019s office . In short , he felt himself exposed to hostility which made him want to leave ORG for PERSON , or better still , for GPE prison where , he claimed , ORG would find him a suitable job and accommodation \" in a hostel in GPE \" .","ORG filed this letter without further action ; on DATE , the director of the state welfare settlement at ORG was requested so to inform the applicant .","Versyp was released on DATE , by virtue of a ministerial decision of CARDINALrd DATE ( LAW of LAW ) and after DATE , DATE of detention . On DATE the authorities of the ORG settlement had given a favourable opinion on the new request for release which he had made some time before ; they noted , amongst other things , that he would more easily find a job at that time than at the expiry of the term fixed in DATE by the GPE magistrate , that is in DATE .","In the application which he lodged with the Commission on DATE ( No . CARDINAL\/CARDINAL ) and supplemented on CARDINALth DATE , the applicant invoked Articles CARDINAL , CARDINAL and DATE ( CARDINAL ) ( c ) ( article CARDINAL , article CARDINAL , article DATE ) of the LAW . He complained in the first place of his detention : he emphasised that he had a fixed abode at FAC and had never begged and so he was surprised at having been placed in a vagrancy centre . He further alleged that he had had no opportunity of defending himself before the GPE police court on CARDINALth DATE as the hearing had lasted \" scarcely TIME \" and he had not been granted free legal aid . He also complained of various features of the regime to which he was subjected . In order to prevent him accumulating the CARDINAL BF required to constitute release savings , he had been left , he alleged , for DATE without sufficient work . In a general way , he added , the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible ; the Government , for its part , \" encouraged \" vagrancy which gave it a labour force almost without cost ( CARDINAL BF per hour at manual work ) and huge profits . Finally , PERSON maintained that his numerous letters addressed to the competent authorities , such as , for example , the inspector of prisons , the public prosecutor \u2019s office ( DATE ) and the Minister of ORG ( DATE and DATE ) , invariably returned \" to the director \" who filed them without further action ; these letters were not the object of any decision or , like his request for a transfer to GPE , met with a refusal . CARDINAL of them , that addressed on CARDINALth DATE to the Minister of ORG by registered post , had even been opened by the director of the ORG settlement who had not sent it .","On DATE , the Commission declared the application admissible ; it had previously ordered its joinder with the applications of PERSON and PERSON .","According to LAW vagrants are persons who have no fixed abode , no means of subsistence and no regular trade or profession \" . These CARDINAL conditions are cumulative : they must be fulfilled at the same time with regard to the same person .","Vagrancy was formerly a misdemeanour ( Criminal Code of DATE ) or a petty offence ( Act of CARDINALth DATE ) , but no longer of itself constitutes a criminal offence since the entry into force of LAW : only \" aggravated \" vagrancy as defined in ORG CARDINAL to CARDINAL of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the CARDINAL applicants . \" Simple \" vagrancy is dealt with LAW .","According to LAW \" every person picked up as a vagrant shall be arrested and brought before the police court \" - composed of CARDINAL judge , a magistrate . The public prosecutor or the court may nonetheless decide that he be provisionally released ( LAW ) .","\" The person arrested shall be brought before the magistrate within TIME and in his ordinary court , or at a hearing applied for by the public prosecutor for DATE \" . If that person so requests \" he ( shall be ) granted a CARDINAL ORG adjournment in order to prepare his defence \" ( Section CARDINAL of the Act of CARDINALst DATE ) ; neither PERSON , nor Ooms nor PERSON made use of this right .","Where , after having ascertained \" the identity , age , physical and mental state and manner of life \" of the person brought before him ( Section CARDINAL ) , the magistrate considers that such person is a vagrant , LAW of the DATE Act becomes applicable .","Section CARDINAL deals with \" able - bodied persons who , instead of working for their livelihood , exploit charity as professional beggars \" , and with \" persons who through idleness , drunkenness or immorality live in a state of vagrancy \" ; Section CARDINAL with \" persons found begging or picked up as vagrants when none of the circumstances specified in LAW ... apply \" .","In the first case the court shall place the vagrant \" at the disposal of the Government to be detained in a vagrancy centre , for not CARDINAL and not DATE \" ; in the second case , the court may \" place ( him ) at the disposal of the Government to be detained in an assistance home \" for an indeterminate period which in no case can exceed DATE ( see paragraph CARDINAL below ) .","Section CARDINAL was applied to PERSON and PERSON and LAW to PERSON .","The distinction between the \" reformatory institutions \" referred to as \" vagrancy centres \" and \" assistance homes \" or \" welfare settlements \" ( Sections CARDINAL and CARDINAL of the Act ) has become a purely theoretical one ; it has been replaced by a system of individual treatment of the persons detained .","Detention in a vagrancy centre is entered on a person \u2019s criminal record ; furthermore , vagrants \" placed at the disposal of the Government \" suffer certain electoral incapacities ( Articles CARDINAL and CARDINAL of LAW ) .","Magistrates form part of the judiciary and have the status of an officer vested with judicial power , with the guarantees of independence which this status implies ( Articles CARDINAL of the LAW ) . ORG , however , considers that the decisions given by them in accordance with LAW and DATE of LAW are administrative acts and not judgments within the meaning of LAW , sub - section CARDINAL , of LAW of DATE . They are not therefore subject to challenge or to appeal nor - except when they are ultra vires ( see paragraph CARDINAL of the Commission \u2019s report ) \u2013 to cassation proceedings . The decisions of the highest court in GPE are uniform on this point .","As to the PERSON d\u2019\u00c9tat , it has so far had to deal with CARDINAL appeals for the annulment of detention orders for vagrancy . In a judgment of DATE in the ORG case , the ORG d\u2019\u00c9tat did not find it necessary to examine whether the GPE police court \u2019s decision taken on DATE in pursuance of LAW of LAW emanated from an authority which was \" acting as an administrative authority within the meaning of LAW of DATE \" ; the appeal lodged by Mr. PERSON on DATE had been dismissed because :","\" the decision appealed against ( was ) a preliminary decision which ( had been ) followed by the ORG \u2019s decision to detain the appellant in a vagrancy centre ... ; the appellant ( could ) not establish that he ( had ) any interest in the annulment of a decision which merely ( allowed ) the Government to detain him , while the actual decision by which he was interned ( had not ) been appealed against \" .","As against this , on DATE , that is DATE after the ORG had declared admissible the applications of PERSON , PERSON and PERSON , the ORG d\u2019\u00c9tat gave a judgment annulling the decision by which on DATE the ORG police court had placed a Mr. PERSON at the disposal of the Government in pursuance of LAW of LAW . Before examining the merits , the Conseil d\u2019\u00c9tat examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. PERSON on DATE . In the light of the legislative texts in force , of the preparatory work thereto and of \" the consistent case - law of the ordinary courts \" , the ORG d\u2019\u00c9tat considered that the placing of a vagrant at the disposal of the ORG does not result from \" the finding of a criminal offence \" but amounts to \" an administrative security measure \" and that the decision ordering it is therefore \" of a purely administrative nature \" \" so that no form of appeal is open to the person concerned ... before the ordinary courts \" . It added that \" such an administrative decision by the magistrate \" could not be considered as \" a preliminary measure enabling the ORG to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance \" ; in any event , \" the person concerned is immediately deprived of his liberty without any further decision by the Government \" .","Section CARDINAL , sub - section CARDINAL , of the Act of DATE constituting the ORG d\u2019\u00c9tat provides that where both this body and \" an ordinary court rule that they are either competent or incompetent to entertain the same proceedings , the conflict of jurisdiction is settled , on the motion of the most diligent party , by ORG \" in plenary session . No such conflict appears to have come before the highest court of GPE in vagrancy matters up to the present time .","ORG has had the reform of LAW under consideration for some time . According to the information given to ORG on DATE , the PERSON which it is preparing to submit to ORG provides in particular that an appeal against the GPE decisions may be made to the court of first instance .","\" Able - bodied persons detained in a vagrancy centre or assistance home \" are \" required to perform the work prescribed in the institution \" ( Section CARDINAL of the CARDINAL Act ) . Persons who , like PERSON , and PERSON , refuse to comply with this requirement without good reason , in the opinion of the authorities , are liable to disciplinary measures . \" Infirmity , illness or punishment may lead to a suspension , termination or stopping of work \" ( ORG CARDINAL and CARDINAL , read in conjunction , of LAW of CARDINALst DATE laying down general prison regulations ) .","\" Unless stopped for disciplinary reasons \" , detained vagrants are entitled to \" a DATE wage \" known as \" allowances \" . Sums are retained \" for administrative expenses \" - \" for the benefit of the ORG \" DATE and \" to form the release savings \" which shall be \" granted ... partly in cash and partly in clothing and tools \" . The Minister of Justice fixes the amount of the said release savings and , having regard to the various categories of detained persons and of work , the wages and the sums to be retained ( Sections CARDINAL and CARDINAL of the CARDINAL Act ; Articles CARDINAL and CARDINAL , read in conjunction , of LAW of CARDINALst DATE ) .","At the time of the detention of the CARDINAL applicants , the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at CARDINAL BF , at least for the \" inmates \" of welfare settlements ( ministerial circular of CARDINALth DATE ) .","The minimum TIME allowance \" actually paid \" to detainees - save any deductions made for \" wastage and poor work \" - was CARDINAL BF up to CARDINALst DATE , on which date it was increased by MONEY ( ministerial circulars of DATE and CARDINALth DATE ) . The allowance was not capable of assignment or liable to seizure in execution and was divided into CARDINAL equal parts : \" the reserved portion \" which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately ( Articles CARDINAL and CARDINAL , read in conjunction , of LAW of CARDINALst DATE ) .","DATE . According to ORG DATE and CARDINAL of LAW of CARDINALst DATE , the correspondence of detained vagrants - who , in this as well as in other respects , are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice , the director of the institution , the inspector - general and the director - general of the prison administration , the secretary - general of ORG , the judicial authorities , the ministers , the chairmen of the legislative ORG , the King , etc . Their correspondence with the ORG is not mentioned in this Decree but the Minister of ORG informed the governors of prisons and ORG , including those at PERSON and PERSON , that \" a letter addressed to this organ by a detainee is not to be censored but should be forwarded , duly stamped for abroad by the sender ... , to ORG ... which shall undertake to transmit it to its destination \" ( circular of CARDINALth September CARDINAL as it was in force at the time of the detention of the applicants ; see also paragraph CARDINAL above ) .","\" Persons detained in an assistance home \" - as PERSON - may not \" in any case be kept against their will for DATE \" ( LAW , first sentence , of LAW ) . They regain their freedom , as of right , before the expiry of this period \" when their release savings ( have reached ) the amount ... fixed by the Minister of Justice \" , who shall , moreover , release them if he considers their detention \" to be no longer necessary \" ( Sections CARDINAL and DATE , second sentence , of LAW ) .","As regards vagrants detained in a vagrancy centre - such as PERSON and PERSON they leave the centre either at the expiry of the period varying from DATE \" fixed by the court \" or at an earlier date if the Minister of ORG considers \" that there is no reason to continue their detention \" ( LAW ) ; the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose .","It seems that no detained vagrant has to date lodged an appeal with the PERSON d\u2019\u00c9tat , under LAW of DATE , for the annulment of a ministerial decision which had rejected his application for release .","Before the ORG and ORG , the CARDINAL applicants invoked Articles CARDINAL , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) ( b ) and ( c ) , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL - CARDINAL , article CARDINAL , article DATE , article DATE , article CARDINAL - CARDINAL-b , article DATE , article CARDINAL , article CARDINAL , LAW ) of the LAW . CARDINAL of them , PERSON and PERSON , also alleged that LAW ) had not been observed .","In its report of DATE , the ORG expressed the opinion :","- that there was a violation of ORG CARDINAL ( article CARDINAL ) ( QUANTITY votes to CARDINAL ) , CARDINAL ( CARDINAL ) ( article DATE ) ( CARDINAL votes to CARDINAL ) and CARDINAL ( article CARDINAL) ( CARDINAL votes to CARDINAL ) ;","- that there was no violation of Articles CARDINAL ( article CARDINAL ) ( unanimous ) and CARDINAL ( CARDINAL ) ( article CARDINAL - CARDINAL ) ( CARDINAL votes to CARDINAL ) ;","- that ORG CARDINAL ( CARDINAL ) ( article CARDINAL ) ( unanimous ) , CARDINAL ( CARDINAL ) ( article DATE ) ( QUANTITY votes to CARDINAL ) , CARDINAL ( CARDINAL ) ( article CARDINAL ) ( QUANTITY votes to CARDINAL ) and CARDINAL ( article CARDINAL ) ( unanimous ) were inapplicable .","The ORG was further of the opinion that \" it ( was ) no longer necessary to consider LAW ( LAW ) \" ( unanimous ) .","The report contains several individual opinions , some concurring , others dissenting .","After the cases were brought before the ORG the applicants repeated , and sometimes developed , in a memorandum which the ORG appended to its memorial , the greater part of their earlier arguments . They indicated their agreement or otherwise , according to the case , with the opinion of the ORG , to which ORG and PERSON \" bowed \" as regards LAW ( article CARDINAL ) of the LAW ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":["13","3","4","5","8"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69354","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF OOO RUSATOMMET v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"","text":["NORP The applicant company is a debt collector . In DATE , it bought a defaulted ORG bond and sued the Government for the debt . After DATE of litigation , on DATE ORG ordered the Government to pay the applicant company MONEY ( \u201c USD \u201d ) .","On DATE , ORG of ORG upheld the judgment , but speci\ufb01ed that the debt was to be paid by ORG .","On DATE , the ministry asked the court to stay the enforcement of the judgment until DATE , because there were no funds in the ORG budget of DATE .","On DATE , bailiffs opened enforcement proceedings .","On DATE , the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds , or that the funds would become available after DATE .","On DATE , the ministry asked the court to stay the enforcement of the judgment until DATE , because there were no funds in the ORG budget of DATE .","On DATE , the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds , or that the funds would become available after DATE .","NORP In DATE , the ministry asked the appeal court to clarify how the judgment was to be enforced .","On DATE , the appeal court clari\ufb01ed that the judgment was to be enforced only once the applicant company had handed in the bond . The applicant company appealed against this decision because the general conditions of the bond \u2019s issue did not require that it be handed in . In addition , the applicant company argued that the judgment could be enforced on the basis of a writ of enforcement alone , and that the bond was to be returned to the ministry only after the enforcement . On DATE , ORG of ORG dismissed this appeal .","On DATE , the applicant company handed in the bond to the ministry .","Subsequently , the applicant company unsuccessfully sought an injunction to oblige the ministry to enforce the judgment ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103222","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF IGOR KABANOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 10","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","The applicant , an advocate at the time , acted as defence counsel for a Mr R.","On DATE the Primorskiy District Court of Arkhangelsk , chaired by judge ORG , removed the applicant from his position as PERSON counsel . ORG found that the applicant had acted contrary to LAW and LAW . The court noted , in particular :","\u201c Persistent and repeated voluntary statements made by [ the applicant ] that he provided legal advice to witnesses DATE S. and at the same time acted as counsel for defendant NORP ... show that [ the applicant ] , in violation of the formal requirements of LAW , provided legal advice and acted as counsel in respect of persons whose interests were in conflict . Therefore , it is not possible for [ the applicant ] to continue to participate in the trial as legal counsel for defendant NORP or to provide legal advice to ORG and S. \u201d","On DATE ORG found PERSON guilty as charged .","On DATE ORG quashed PERSON NORP 's conviction and remitted the matter for fresh consideration . The court also upheld on appeal the decision of CARDINAL DATE .","On DATE the applicant asked the Presidium of ORG for supervisory review of the judicial decisions to remove him from being PERSON representative .","On DATE judge A. of ORG dismissed the above complaint . In particular , the judge noted as follows :","\u201c I hereby return your complaint against ... the decisions ... of DATE and CARDINAL DATE without having considered it on the merits . [ The reason for this is that ] ORG of LOC opened NORP 's trial on DATE and it is impossible to verify the lawfulness and inconsistency of the decisions in question . \u201d","On DATE the applicant filed a complaint against the judges who had participated in the proceedings for the determination of the criminal charge against Mr R. , alleging that they had acted in violation of the rules of criminal procedure by refusing to consider his application for supervisory review in respect of the decision of CARDINAL DATE . The complaint was addressed to the President of ORG of GPE with a copy to the President of ORG . The applicant asked for the President 's intervention which would prompt , in his opinion , ORG to respond to his application for supervisory review .","NORP In particular , the applicant made the following comments in the complaint :","\u201c ... Judges PERSON and ORG used to \u201c plough the fields of justice together \u201d at ORG , and , apparently , they \u201c continue their joint efforts now \u201d at ORG ...","... In my opinion , either judge ORG is not quite familiar with the law , which is sad , or judge PERSON wilfully and knowingly restricts my access to court , which is twice as sad ...","... On DATE I received an absolutely unlawful \u201c brush - off \u201d reply from judge A ...","... [ Judge PERSON ] could have unglued his posterior from [ his ] seat and brought it to the LOC of ORG ...","... Otherwise , why would judge ORG receive such a salary which I , as a tax payer , contribute to ? ...","... But judge PERSON simply pushed away my [ request for ] supervisory review and , by doing so , he seriously violated the rules of criminal procedure and my constitutional rights ...","... I believe that one telephone call from ORG of GPE will be enough to make ORG consider my complaint on the merits ... \u201d","NORP The President of ORG forwarded the applicant 's complaint to ORG for further action . The President of ORG lodged a complaint with ORG ( the \u201c Council \u201d ) alleging that the above comments were offensive and incompatible with the Advocate 's Code of Professional Conduct . He stated as follows :","\u201c In our opinion , [ the applicant 's complaint ] contains remarks which are offensive and tactless vis - \u00e0 - vis certain judges of ORG .","We believe that the content and the style of the complaint are impermissible .","In our view , the reference made by [ the applicant ] in his complaint addressed to the President of ORG that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession .","[ A]dvocates should , under any circumstances , be tactful and correct vis - \u00e0 - vis their counterparts and public officers , including judges . [ They ] should demonstrate respect towards the court and challenge [ judicial ] acts correctly and in accordance with the law .","Having regard to the above ... I hereby request that you follow up on the applicant 's conduct and inform ORG of the measures taken . \u201d","On DATE the Council held a disciplinary hearing . The applicant did not challenge the offensive character of the comments . He submitted that he had been , in a way , provoked by the judges ' allegedly unlawful decisions . The ORG granted the complaint and terminated the applicant 's bar membership as of DATE . In particular , the ORG noted as follows :","\u201c [ The applicant 's complaint ] addressed to the President of ORG of GPE contains tactless remarks in respect of certain judges of ORG , which amounts to a violation of the Advocate 's Code of Professional Conduct ...","The content and the style of the [ applicant 's ] complaint addressed to the President of ORG are impermissible .","The reference made by [ the applicant ] in his complaint addressed to the President of ORG that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession .","[ A]dvocates should , under any circumstances , be tactful and correct vis - \u00e0 - vis ... judges . [ They ] should demonstrate respect towards the court and challenge [ judicial ] acts correctly and in accordance with the law . \u201d","The applicant appealed to the court . He claimed that he was disliked by the members of the ORG and their decision had been retaliation against him for his personal views and convictions . He also alleged that the disciplinary hearing had been carried out with certain procedural irregularities .","On DATE ORG dismissed the claim brought by the applicant against ORG seeking reinstatement of his membership . The applicant appealed .","On DATE the applicant asked ORG to transfer the case to another jurisdiction for consideration . The applicant alleged that any judge of ORG would be biased against him because the original complaint which had prompted the disciplinary proceedings against him had been lodged by the President of the said court . On DATE judge PERSON of ORG refused to consider the applicant 's request and returned the relevant documents to him . In particular , the judge informed the applicant as follows :","\u201c I hereby return your application stating the challenge to the whole composition of ... ORG and advise you that , pursuant to the rules of civil procedure , it is only possible to challenge the specific judges who are appointed to consider your case and not the whole composition of [ the court ] . \u201d","On DATE ORG upheld the judgment of DATE on appeal . The court dismissed as unsubstantiated the applicant 's allegations of the ORG 's partiality . Nor did it discern any procedural irregularities in the applicant 's disbarment .","The Advocate 's Code of Professional Conduct ( LAW ) establishes that an advocate may be subject to disciplinary proceedings for a failure to abide by legislation concerning advocates ' activities and advocacy and for failure to abide by LAW itself . Any impropriety discrediting an advocate 's professional integrity or the legal profession , a breach of the care of duty vis - \u00e0 - vis his or her client , or a failure to abide by the decisions of the qualifications committee and council of the advocates ' chamber gives rise to disciplinary liability ( LAW ) .","The disciplinary sanctions available are : reprimand ; warning ; disbarment ; or other sanctions as determined by the conference of the advocates ' chamber ( LAW ) .","The Judges ' Status Act stipulates in section CARDINAL that , in addition to the performance of judicial functions , the president of a court :","\u201c ( CARDINAL ) organises the work of the court ;","( CARDINAL ) determines the court 's internal regulations on the basis of the model regulations adopted by ORG and supervises compliance therewith ;","( CARDINAL ) NORP distributes the workload between the deputy presidents and ... judges ;","( CARDINAL ) NORP organises the judges ' training ;","( CARDINAL ) carries out the general management of the court 's office as follows : hires and dismisses the court 's employees ; distributes the workload between them ; decides on [ their ] performance awards and disciplinary liability ; organises training for the court 's employees ;","( CARDINAL ) informs on a regular basis the judges and the court 's employees of his [ or her ] activities and [ the ] activities of the court ; and","( CARDINAL ) performs other functions pertaining to the organisation of the court 's work . \u201d","LAW ( Article CARDINAL ) provides that , should a challenge against a judge or panel of the judges be granted , the matter should be transferred to another judge or judicial panel within the same ORG . If the challenge to a judge or a judicial panel is granted and it is no longer possible to form a new judicial panel to consider the case , it should be transferred to ORG of GPE which will reassign it to another court .","The court should transfer the case to another court if , following a challenge to CARDINAL or several judges or due to other reasons , it can not consider the case . The transfer of the case is carried out by the relevant superior court ( Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW ) .","Pursuant to decision no . CARDINAL of ORG of GPE of DATE , ORG of GPE granted a request lodged by ORG to transfer a case concerning a defamation action lodged by a judge of ORG . The case was transferred to ORG . In particular , ORG of GPE noted as follows :","\u201c ... [ I]n these circumstances , the matter can not be considered in accordance with the rules of jurisdiction due to objective reasons . Given that the action was lodged by ORG , a judge of ORG , [ that court ] upheld ... the challenge to the whole panel of ORG and , pursuant to LAW of LAW , forwarded the case to ORG of GPE for determination of its jurisdiction .","ORG has noted in its ruling ... of DATE that \u201c under certain circumstances ( for example , if a civil action is lodged against a judge or by a judge of the same court , and if the court which has jurisdiction over the matter does not function for CARDINAL reason or another ) , the change of the jurisdiction of the matter is not only possible , but is sometimes necessary .","Pursuant to [ LAW ( CARDINAL ) of LAW ] , the court transfers the case to another court if , following the challenge to CARDINAL or several judges or due to other reasons , the replacement of the judge or consideration of the case by the court becomes impossible . The transfer of the case is effected by a superior court . \u201d"],"violated_articles":["10","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109153","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2012,"docname":"PAPAIOANNOU AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4","text":["The CARDINAL applicants are a family . The first applicant , PERSON , is the mother of the other CARDINAL applicants , PERSON , GPE , PERSON ( n\u00e9e PERSON ) , PERSON , PERSON , PERSON and PERSON . They are all NORP nationals of NORP - Cypriot origin born in DATE and DATE respectively . Applicants nos . CARDINAL , CARDINAL , DATE , DATE and DATE are living in GPE and applicants nos . CARDINAL , CARDINAL and DATE are living in GPE . They are represented before the Court by PERSON and PERSON , lawyers practising in GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","The applicants are owners and\/or part owners of CARDINAL plots of land and QUANTITY houses all situated in the area of GPE . CARDINAL of the plots of land were used for agricultural purposes and according to the applicants the produce from these plots was the main source of their family income . The QUANTITY houses were situated on the remaining QUANTITY plots of land . CARDINAL of the houses was rented out whilst the other CARDINAL were the homes of the applicants .","In DATE , the applicants were forced to abandon their homes and property in GPE . They have not had access and\/ or use of them ever since ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104866","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF FIRAT CAN v. TURKEY","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi","text":["The applicant was born in DATE and is currently detained in ORG pending the criminal proceedings against him .","On DATE the applicant was arrested and taken into police custody by police officers from the Anti - Terrorist Branch of ORG on suspicion of membership of an illegal organisation .","On DATE a single judge at ORG ordered the applicant \u2019s pre - trial detention .","On DATE the public prosecutor at ORG filed a bill of indictment with that court , charging the applicant with attempting to undermine the constitutional order , an offence proscribed by LAW .","On DATE ORG convicted the applicant as charged and sentenced him to death .","On DATE ORG quashed the judgment of ORG on account of a procedural defect which had prejudiced the rights of the defence .","In the meantime on DATE ORG issued a report noting that the applicant suffered from PERSON syndrome and recommended the suspension of the execution of his sentence for DATE for medical reasons . It appears that this recommendation was not taken into account by the authorities .","State Security Courts were abolished by PERSON no . CARDINAL of DATE , published in ORG on DATE . The case against the applicant was therefore transferred to ORG .","At the hearing held on DATE , the applicant asked to be released in view of the excessive amount of time he had already spent in pre - trial detention . ORG of ORG , however , ordered the applicant \u2019s continued detention in view of the nature of the offence , the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released .","On DATE the applicant objected to the decision of DATE and again requested his release .","On DATE ORG of ORG dismissed the applicant \u2019s objection without holding a hearing and without providing any reasons for its decision .","On DATE ORG convicted the applicant as charged under LAW of the former LAW and sentenced him to aggravated life imprisonment . The applicant appealed this judgment .","According to the information in the case file , the case is still pending before ORG .","On an unspecified date the applicant was temporarily transferred from K\u0131rklareli E - type Prison to GPE Bayrampa\u015fa Prison to attend the final exams at ORG , where he was registered as a student .","On DATE , before he was transferred from GPE back to GPE following the end of the exam period , he was medically examined by the resident doctor at ORG , who noted no signs of illtreatment on his body . On DATE the applicant also signed a document stating that he had not been illtreated or subjected to any other adverse treatment during the course of his transfer to GPE and that the gendarmerie personnel had not confiscated his money or other valuables . At TIME on DATE he was handed back to the prison authorities in GPE .","On DATE the applicant lodged a complaint with ORG against the gendarme soldiers in charge of his transfer , alleging that he had been tortured at their hands during the transfer from GPE to GPE , and requested to be referred to the forensic medicine institute for examination . He also complained that the gendarme soldiers in question had appropriated under duress CARDINAL gold and CARDINAL silver rings he was wearing on the relevant day and he requested the return thereof .","On DATE a doctor at ORG examined the applicant and noted a slight abrasion on the right inner corner of his upper lip , bruising and swelling on his biceps , pain on DATE right ribs , widespread hyperaemia and pain in his right axial region ( QUANTITY below the armpit ) caused by physical trauma , pain and swelling around the metatarsal bones of his left foot , pain in the waist area and throat and difficulty in swallowing related to trauma . The report noted that the symptoms were likely to be the result of beatings or violence , and requested the applicant \u2019s referral to ORG for the verification of any fractured bones .","On DATE the applicant was examined at ORG , where it was noted that the injuries he had sustained were not life- threatening and would not cause long - term damage to his health .","On DATE the applicant repeated his allegations of illtreatment against the gendarmerie personnel before ORG of ORG .","On DATE ORG interrogated the applicant regarding his allegations of ill - treatment . The applicant contended that on DATE , before he was put in the patrol wagon bound for ORG , a gendarme sergeant and CARDINAL gendarme soldiers in his command had shoved him into a toilet at ORG and beaten him up , squeezed his testicles , hit his throat with a truncheon and insulted him . He claimed that this treatment had mainly resulted from his refusal to comply with the gendarmes\u2019 orders to remove and hand over his rings prior to the transfer .","On DATE the ORG issued a decision of lack of jurisdiction ( g\u00f6revsizlik karar\u0131 ) in respect of the applicant \u2019s complaints and referred the matter to ORG .","On DATE ORG interrogated the gendarme sergeant , PERSON , who had been in charge of the applicant \u2019s transfer from GPE to GPE on DATE . PERSON stated that he had no recollection of the applicant , nor of the events as recounted by him , and denied the allegations against him . He added that in accordance with the relevant regulations and instructions , prisoners\u2019 valuables were removed prior to any transfer and handed over to the prison administration , which was responsible for their subsequent return to the prisoner .","On DATE ORG requested information from the administration of ORG in respect of the applicant \u2019s confiscated rings . On DATE the prison administration informed the public prosecutor that the applicant \u2019s personal belongings had been handed over to his wife on DATE .","On DATE ORG filed a bill of indictment with ORG against PERSON , charging him with the offence of causing bodily harm under LAW and CARDINAL of LAW and excessive use of force under LAW . The public prosecutor noted that despite PERSON \u2019s outright denial of the charges against him , the findings of the medical report dated DATE appeared to corroborate the applicant \u2019s allegations of ill - treatment . He further specified in the bill of indictment that since the offences in question did not fall within the scope of PERSON no . DATE ( PERSON on the Prosecution of Civil Servants and Public Officials ) , no administrative authorisation was required for PERSON \u2019s prosecution .","On DATE the ORG admitted the indictment and ordered that the first hearing be held on DATE . According to the information in the case file , the proceedings are still pending before ORG .","A description of the relevant domestic law and practice concerning judicial review of pre - trial detention under the former Code of Criminal Procedure ( Law no . DATE ) may be found in PERSON and GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) .","Section CARDINAL of Article CARDINAL of the new Code of Criminal Procedure provides the following :","\u201c Persons ; ...","b ) who were not brought before a judge within the period prescribed by law ,","...","d ) who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time ,","during the criminal investigation or prosecution may demand compensation for all pecuniary and non - pecuniary damage they sustained from the ORG . \u201d","Section CARDINAL of Article CARDINAL of the new Code of Criminal Procedure further provides :","\u201c Compensation may be demanded [ from the ORG ] within DATE from the date of service of the final ... judgment and , in any case , within DATE following the date on which the ... judgment becomes final . \u201d"],"violated_articles":["3","5","6"],"violated_paragraphs":["5-3","5-4","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22953","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2001,"docname":"MOCHEJSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant is a NORP national , born in DATE . He is a lawyer and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant filed with ORG ( S\u0105d Rejonowy ) an action against ORG for which he used to work as a vice - consul at FAC in GPE until DATE . He claimed compensation for the airplane tickets he had purchased for himself and his family in order to return from GPE to GPE .","On DATE the applicant \u2019s case was transferred to ORG of ORG . On DATE ORG decided that the case should be transmitted to ORG as it concerned a claim based on labour law . On DATE the case was received by the registry of ORG .","The first hearing was fixed for DATE . On DATE the defendant requested the court to postpone the hearing as its counsel was on leave and the applicant \u2019s written submissions were extensive . During the hearing held on DATE the court decided to adjourn it until DATE .","On DATE the hearing was adjourned until DATE as the presiding judge was on sick leave .","On DATE the court requested the defendant to submit a reply to the applicant \u2019s statement of claim .","During the hearing held on DATE the court decided that a certain PERSON , an employee of the defendant , should be heard as a witness and adjourned the hearing until DATE . At the same time the court instructed the defendant to provide it with the address of PERSON","On DATE the defendant informed the court that PERSON was living in GPE where he had been appointed as a consul at FAC .","The hearing held on DATE was adjourned as the witness PERSON was not present .","On DATE and DATE ORG requested ORG to take evidence from PERSON In a letter of DATE ORG informed the President of ORG that it faced difficulties in taking evidence from PERSON It also advised the President that he might wish to prepare another request for taking evidence from that witness and submit it directly to the concerned NORP diplomatic mission in GPE .","On DATE ORG again requested ORG to assist it in taking evidence from PERSON","On DATE the defendant submitted a duly certified written statement made by PERSON","On an unspecified date in DATE PERSON returned to GPE , where he continued to work for the defendant .","The next hearing held on DATE at TIME was adjourned after the counsel for the defendant informed the court that PERSON could not attend since he was on vacation outside GPE . The applicant submits that in TIME that day he made a phone call to PERSON who was in his office in GPE and who informed him that although formally he was on leave , he had nevertheless come to work on DATE .","The hearing held on DATE was adjourned after the court took evidence from PERSON and requested the applicant to submit copies of insurance policies which he had purchased before his departure from GPE .","The hearing held on DATE was adjourned due to the illness of the presiding judge .","On DATE the last hearing before the first - instance court took place .","On DATE ORG delivered a judgment dismissing the applicant \u2019s action .","On DATE the applicant was served with the reasoned judgment of ORG .","On DATE the applicant lodged with ORG an appeal against the judgment of ORG . On DATE the applicant \u2019s appeal was transmitted to the defendant . On DATE the defendant submitted to ORG its reply .","On DATE ORG held a hearing . On DATE the court delivered a judgment in which it awarded the applicant ORG CARDINAL together with interest and dismissed the remaining part of his claim .","On DATE the applicant lodged with ORG ( S\u0105d Najwy\u017cszy ) a cassation appeal . On DATE ORG rejected the appeal because such a remedy was not provided in the applicant \u2019s case since his claim was below the PLN CARDINAL,CARDINAL threshold set by the legislation for cassation appeals . In addition , the court observed that the cassation appeal had been lodged by the applicant instead of qualified counsel .","On DATE the applicant lodged with ORG a further appeal challenging the decision rejecting his cassation appeal . On DATE ORG rejected the appeal because such a remedy was not provided by law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115649","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2012,"docname":"RUSHING v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;J\u00e1n \u0160ikuta;Johannes Silvis;Josep Casadevall;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["NORP The applicant , Mr PERSON Rushing , is a citizen of GPE ( GPE ) , who was born in DATE . He was detained in the GPE at the time of the introduction of the application . He was represented before the ORG by Mr PERSON , a lawyer practising in ORG .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr R.A.A. B\u00f6cker , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE an arrest warrant was issued by the GPE federal authorities against the applicant who was suspected of having imported into the GPE QUANTITY of marihuana from GPE .","On DATE , the applicant was apprehended at FAC in the GPE .","On DATE , ORG requested the extradition of the applicant .","On DATE , ORG ( rechtbank ) of GPE considered the applicant \u2019s extradition permissible and advised the Minister of ORG ( Minister PERSON ; \u201c the Minister \u201d ) accordingly . It held that the applicant had failed to establish that a mandatory life sentence would be imposed on him .","The applicant appealed this decision . ORG ( PERSON ) accepted the appeal on DATE , in so far as ORG had failed to set out the applicable domestic law , but dismissed the appeal on all other grounds , considered the extradition permissible and advised in favour of the extradition .","On DATE , ORG ( Afdeling internationale rechtshulp in strafzaken ; \u201c the Department \u201d ) of ORG ( PERSON ) asked their GPE counterpart the following questions :","\u201c The lawyer of GPE states that extradition would be inhumane since he faces a life time imprisonment ( since he will be tried for the third time ) . Is it correct that due to the third criminal case \/ conviction against him that the judge will have to apply the life time imprisonment in that state or does he have a choice ? The competent judicial authority is the federal district court in GPE , GPE . \u201d","On DATE , ORG responded as follows :","\u201c In answer to your question about the sentencing options for Rushing , once he \u2019s extradited , first , there is NO possibility of a mandatory life sentence . In addition , there is no \u201c CARDINAL strikes \u201d rule in the federal system . There is a statutory range of DATE to life in prison ( as stated in the extradition affidavit ) ; there are also federal sentencing guidelines . Below is a brief explanation of the statute and guidelines , which are advisory only .","Statutory Penalty : The ORG charges the defendant , ORG , with conspiracy to import and distribute hashish in violation of LAW , LAW ( a)(CARDINAL ) , CARDINAL ( b)(CARDINAL)(A ) , CARDINAL , CARDINAL , CARDINAL ( a ) , CARDINAL(b)(CARDINAL ) and CARDINAL . These statutes provide for a penalty of not DATE and not more than life in prison .","Sentencing Guidelines : In addition , there are non - mandatory sentencing guidelines that will be relevant to the defendant \u2019s sentence . In this case , the government would anticipate , based on the facts , that the following adjustments would apply :","Base Offense Level : The base offense level would be CARDINAL under USSG [ United States Sentencing Guidelines ] CARDINALDCARDINAL , based on the quantity of hashish .","Leadership : The defendant would likely receive an upward adjustment of CARDINAL ( CARDINAL ) levels under USSG CARDINAL ) , as the defendant was an organizer and leader of a criminal activity involving CARDINAL people .","Acceptance of Responsibility . GPE would recommend a downward adjustment for acceptance of responsibility under USSG \u00a7 CARDINALECARDINAL.CARDINAL(a)(b ) of CARDINAL ( CARDINAL ) levels .","With these adjustments , the defendant \u2019s adjusted offense level will be DATE . If he has no criminal history , his advisory guideline range would be CARDINAL to DATE in prison . If the defendant has a criminal history , his guideline range may be higher . Again , this is only suggestive .","Other statutory factors : Other statutory factors that the court should consider under LAW , LAW , Section CARDINAL(a ) are : ( CARDINAL ) the nature and circumstances of the offenses ; ( CARDINAL ) the history and characteristics of the defendant ; ( CARDINAL ) the need for the sentence to reflect the seriousness of the offenses ; ( CARDINAL ) the need for the sentence to afford adequate deterrence to criminal conduct ; ( CARDINAL ) the need for the sentence to protect the public from further crimes of the defendant ; ( CARDINAL ) the need to provide the defendant with educational and vocational training , medical care , or other correctional treatment in the most effective manner ; ( CARDINAL ) the kinds of sentences available ; ( CARDINAL) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct , and ( CARDINAL ) the need to provide restitution to any victims of the offense . \u201d","By decision of DATE , the Minister approved the extradition . In his decision the Minister considered that the applicant had not demonstrated that a mandatory life sentence would be imposed upon him .","On DATE , the applicant took interlocutory civil proceedings ( kort geding ) against ORG seeking an injunction on his expulsion to the GPE .","On DATE , in the context of the hearing in the interlocutory proceedings , which had been scheduled for DATE , the ORG put fresh questions to ORG , namely :","\u201c Rushing has CARDINAL prior convictions to his name , ( ... ) . Supposedly all CARDINAL convictions are for felony drugs offenses .","Questions likely to be raised in the forthcoming summary proceedings :","Will the prior convictions mentioned above ( if correct ) lead to the mandatory term of life imprisonment without release ?","NORP Is such a mandatory term of life imprisonment \u2018 de jure and de facto reducible\u2019 , does it leave \u2018 any prospects of release\u2019 or does it not ? ORG in GPE ( in its NORP ruling , DATE , no . CARDINAL ) has ruled that there may be issues under LAW in the case of an irreducible sentence of life imprisonment . NORP courts have to take such rulings into consideration .","NORP Is a mandatory minimum sentence of DATE de jure and de facto reducible or not ? Since Rushing is born on DATE and now DATE , such a minimum sentence could be considered a life sentence as well . \u201d","ORG , on DATE , answered as follows :","\u201c CARDINAL . The defendant is not facing a \u201c mandatory \u201d term of life imprisonment ; rather , that is the maximum term that the ORG may order . In order for the mandatory life term to be invoked , the GPE Attorney must file an enhancement information under LAW , LAW [ ORG ] , LAW , which provides as follows : \u2018 No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of CARDINAL or more prior convictions , unless before trial , or before entry of a plea of guilty , GPE attorney files an information with the court ( and serves a copy of such information on the person or counsel for the person ) stating in writing the previous conviction to be relied ORG , GPE Attorney in this district does not file enhancement information under CARDINAL unless GPE Attorney specifically finds , after a review of the defendant \u2019s conduct and criminal history , that the mandatory sentence is merited . The information is often not filed if the matter results in a plea agreement in which the defendant accepts responsibility for his actions .","Once the sentence is imposed , it is reducible under limited circumstances , including : a ) under LAW of LAW , if within DATE of sentencing , the government moves the ORG to reduce the defendant \u2019s sentence based on the defendant \u2019s substantial assistance to the government after sentencing ; and b ) if the President grants the defendant a pardon under LAW , LAW , of GPE .","The defendant faces a mandatory term of CARDINAL ( DATE , not CARDINAL ( DATE , LAW , GPE Code , LAW ) . ORG only has authority to sentence the defendant below the DATE term under the following limited circumstances : a ) if the defendant qualifies for safety valve under LAW ( f ) and ORG [ USSG ] PERSON ( which seems unlikely in this case given the defendant \u2019s leadership role and criminal history ) ; and b ) if the defendant provides substantial assistance to the government through cooperation prior to sentencing and the government moves for a sentence reduction under USSG CARDINAL and CARDINAL U.S.C. CARDINAL . \u201d","The ORG , upon receipt of the above reply , immediately requested clarification regarding the possibility of a Presidential parole .","On DATE , ORG replied as follows :","\u201c [ ... ] the power of a President in federal criminal cases , and the Governor in state convictions , to pardon a person convicted of a crime , commute the sentence ( shorten it , often to time already served ) , or reduce it from death to another lesser sentence . There are many reasons for exercising this power , including real doubts about the guilt of the party , apparent excessive sentence , humanitarian concerns such as illness of an aged inmate , to clear the record of someone who has demonstrated rehabilitation or public service , or because the party is a political or personal friend of the Governor . \u201d","On DATE , the judge in interlocutory proceedings ( kortgedingrechter ) dismissed the applicant \u2019s request to stay his extradition The judge held that the applicant had not established that a mandatory life sentence would be imposed on him or that a Presidential parole was not possible . Therefore , the extradition did not constitute a violation of LAW .","On DATE , the Acting President of the ORG to which the case had been allocated decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of the GPE , under LAW , that the applicant should not be extradited to the GPE until DATE . The Acting President also decided to request ORG to inform the ORG on the scope and the legally binding nature of the information supplied by the GPE authorities . They were specifically asked if they could provide clarification concerning the applicant \u2019s sentence . The Acting President further decided to give priority to the application under LAW .","On DATE ORG submitted the requested information . In reaction to the ORG \u2019s questions , they had contacted the GPE authorities once more . In its relevant part , the information they had received reads as follows :","\u201c Under LAW , LAW , Section CARDINAL(a ) , the sentencing court must consider \u2018 the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.\u2019 The highest sentence served to date in this case was DATE in prison and the lowest sentence was DATE in jail . In the case of the CARDINAL-year sentence , that sentence had originally been DATE , which was a mandatory sentence under LAW . By virtue of a ruling by ORG , however , the Sentencing Guidelines are now only advisory , which should ensure to Mr Rushing \u2019s benefit . Most recently , in DATE , the court sentenced co - defendant PERSON to DATE in prison . Mr PERSON \u2019s case had notable similarities to Mr Rushing \u2019s : both men were leaders and organizers in the same conspiracy and both men transferred large sums of money . In addition , both men were fugitives for DATE . Of course , the cases were also different in some respects . Nonetheless , as noted above , under CARDINAL ORG CARDINAL(a ) , the sentencing judge must consider sentencing disparity when sentencing Mr Rushing . Since the highest sentence to date was DATE in prison and the lowest was DATE in jail , a sentence of life in prison would be a significant leap for the court to make .","Title CARDINAL , United States Code , Section CARDINAL(b)(CARDINAL)(A ) provides for a sentence of \u2018 not DATE or more than life\u2019 . The decision on the term of imprisonment is not within the government \u2019s discretion but rather with the court \u2019s discretion . ORG set the mandatory minimum and maximum sentences for this offense and we are bound to follow the statute . In some circumstances , the parties may conclude a plea agreement under LAW ( C)(CARDINAL)(c ) in which the parties agree that \u2018 a particular sentence or sentencing range is the appropriate disposition ... [and ] such a recommendation or request binds the court , once the court accepts the plea agreement.\u2019 In this instance , however , the court can not accept a plea agreement until the defendant is in the district , so this is not an option . Furthermore , there is nothing in the record to suggest that an CARDINAL(C)(CARDINAL)(c ) binding plea would be appropriate in this case . \u201d","On DATE , the ORG considered the information provided by the Government on DATE and decided , in view of that information , to lift the Rule CARDINAL indication issued on DATE .","On DATE , the applicant informed the ORG that he whished to pursue his application . On DATE , he was extradited to the GPE .","No further information about his situation in the GPE has been submitted ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101019","languageisocode":"ENG","respondent":"POL","branch":"COMMITTEE","date":2010,"docname":"CASE OF FLORCZYK AND OTHERS v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107","text":["The applicants , Mr PERSON , PERSON , PERSON PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE and GPE , GPE .","On DATE the applicants requested ORG to pay compensation for part of their predecessor 's plots of land which had been expropriated as a part of the land development plans , namely for the construction of a road .","On DATE ORG requested the PERSON Governor to issue a formal confirmation that the expropriation had taken place .","On DATE the applicants submitted a copy of ORG decision declaring them successors CARDINAL of the property of their predecessor in title .","On DATE the PERSON Governor informed the applicants that there had been a delay in the proceedings and that they would not end until DATE . The Governor also summoned them to submit certain documents .","On DATE the applicants lodged a complaint with the President of ORG about inactivity on the part of the PERSON Governor . On DATE the President of ORG dismissed their complaint finding that the delay in the proceedings was caused by difficulties in finding other successors .","On DATE ORG informed the applicants that the proceedings would lie dormant until the delivery of a decision by the PERSON Governor .","On DATE the applicants requested ORG to take action with a view of establishing the whereabouts of other parties to the proceedings .","On DATE ORG informed the applicants that they had established a address of a certain ORG","On DATE the Governor informed the applicants about further delays in the proceedings and that they would not end until DATE .","On DATE the Governor again informed the applicants about further delays in the proceedings .","On DATE ORG informed the Governor of the addresses of CARDINAL successors in title , ORG and E.S - S.","In DATE the Governor requested ORG to appoint a guardian for persons whose whereabouts remained unknown .","On DATE ORG stayed the proceedings since the Governor 's representative had failed to comply with the court 's order to submit certain information concerning the case . The proceedings were resumed on a later unknown date .","On DATE the applicants lodged a complaint with ORG about inactivity on the part of the PERSON Governor . On DATE ORG allowed the applicants ' complaint , held that the proceedings had not been conducted with necessary diligence and obliged the Governor to issue a decision on the merits .","On DATE the PERSON Governor informed the applicants about further delays in the proceedings .","On DATE the PERSON Governor appointed an expert to prepare an estimate of the value of plots .","On DATE the PERSON Governor gave a decision confirming that on DATE ORG had acquired ownership of the property concerned which had been expropriated for the purposes of implementing the land development plans .","On DATE the GPE Mayor gave CARDINAL decisions granting compensation to the applicants ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23548","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2003,"docname":"T.C. v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant , Mr T.C. , is a NORP national , who was born in DATE .","On DATE ORG , with whom the applicant cohabited , gave birth to X. The boy \u2019s birth certificate did not list the applicant as a father . Shortly afterwards E.N. was legally incapacitated because of her mental illness .","On DATE X was placed in an orphanage .","DATE and DATE the applicant visited X in the orphanage on the following dates : CARDINAL May , DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE .","On DATE the ORG informed the applicant that legal advice on paternity could be obtained from an advocate or prosecution service .","On DATE ORG informed the applicant that he would not bring on his behalf an action for the recognition of his paternity . The prosecutor advised the applicant that he could file himself an action seeking the confirmation of his paternity .","On DATE the X \u2019s mother was deprived of her parental responsibility for the boy .","On an unspecified date in DATE the Bielsko - Bia\u0142a District Court appointed a guardian ( opiekun prawny ) for X.","DATE X stayed in ORG . During this period the applicant visited X on the following dates : DATE , CARDINAL , CARDINAL and CARDINAL DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE , CARDINAL and DATE","On DATE the ORG submitted to the Bielsko - Bia\u0142a District Court an application of ORG and ORG for the adoption of X. It appears that at that time X suffered from numerous health problems , including attachment disorder .","On DATE the ORG made an interim residence order requiring X to reside with ORG and ORG","On DATE X was placed with ORG and ORG","On DATE the curator ( kurator s\u0105dowy ) of X lodged with ORG an action for determination of the applicant \u2019s paternity .","On DATE the applicant informed the ORG about the beginning of the paternity proceedings before ORG .","On DATE the Director of the Bielsko - Bia\u0142a Adoption Centre replied to the applicant \u2019s complaint about placing X with ORG and ORG The reply read as follows :","\u201c In reply to your letter I should inform you that ORG acts as an intermediary in the adoption when a child referred to us has a settled legal situation i.e. when biological parents are deprived of parental rights . Our institution does not participate in this procedure and therefore we do not have any influence on the final court judgment .","I would like to assure you that in accordance with the law the child was placed with the prospective adopters , who had been earlier subjected to psychological and pedagogical examinations which qualified them for adopters .","I can also assure you that that the child at last feels happy and secure in a loving and responsible family . He paid a high price with his health during DATE in a FAC , where there is no love without which a secure and proper development of a child is impossible .","During DATE , the child was waiting for parents , for his family , for his safe place . His development was impaired and occasional meetings with you disturbed his peace and sense of security .","You have to understand that a child can not wait for so long for its place in a family . It always has negative bearing on its development .","There was a long time for fighting for him . Now it is too late . The child feels happy in a new loving family . At last , he has a sense of security and stability .","I ask you to consider these arguments and think whether you are not disturbing his happiness , for which he has been waiting for so long .","On the other hand , I would like to express my sincere compassion and understanding for your pain and sense of injustice . I can not help you with this anymore . \u201d","On DATE the applicant was interviewed by the judge in charge of the adoption case .","On DATE the ORG stayed the adoption proceedings pending the outcome of the paternity proceedings .","On DATE ORG , a director of the orphanage , submitted to ORG the request not to grant the applicant the parental rights in respect of X when the court determines his paternity . The request included the following statement :","\u201c [ X ] , who was born on DATE , lived in the orphanage since he was DATE until DATE . Since the beginning of the child \u2019s presence in the centre I was telling the presumed father of the boy how important it was to settle his legal situation for the good of the child . On numerous occasions I encouraged Mr T ( ... ) C ( ... ) and his mother to take the boy as a foster family ( until the settlement of the father \u2019s legal situation ) since it would be a better environment for the boy \u2019s psychophysical development . Finally , Mr T ( ... ) C ( ... ) stated that he would take the boy when he grew up . During DATE the legal situation of the presumed father was not clarified and he did not show interest in taking the child as a foster parent . ( ... )","The presumed father and the grandparents during DATE did not show any significant involvement in the boy \u2019s affairs . It seems that the child \u2019s presence in an orphanage was convenient for the presumed father . He did not react to my suggestions that the boy be taken in a foster family until the paternity was determined .","On the basis of an analysis of the nature of the contacts of Mr T ( ... ) C ( ... ) with the child and his attitude to life , one can assume that the presumed father will not cope with all the pedagogical and health problems which may appear in the future development of the boy . \u201d","The applicant submitted that the above statement was not true .","On DATE ORG ruled that the applicant was the boy \u2019s father . It also granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise ORG upbringing . The court considered that the applicant had tried to obtain the recognition of his paternity since the birth of X. Initially the applicant had intended to acknowledge his paternity in a statement made before ORG ( Urz\u0105d Stanu Cywilnego ) but it had proved impossible in view of the attitude of ORG mother . Subsequently he had approached the prosecution service which had refused to bring on his behalf an action for the recognition of his paternity . In addition , the prosecutor had erroneously advised the applicant that he could file himself an action seeking the confirmation of his paternity . Furthermore , the court considered that the applicant \u2019s visits in the orphanage were \u201c in fact not very frequent but regular \u201d . It concluded that granting the applicant \u2019s parental responsibility \u201c would be in the interest of the child and society \u201d .","On DATE ORG rejected a request filed by ORG , acting as a guardian of X , to serve her with a reasoned judgment since it considered that she had no standing in the case . However , this decision was subsequently quashed by the ORG and GPE was served with a reasoned judgment and therefore could appeal it .","On DATE ORG and ORG applied to the ORG for an order designating them as a foster family of X. They pointed out that they had applied for the adoption of X and had obtained an interim residence order allowing the child to live with them . The boy settled in happily with a new family . However , the ruling on the applicant \u2019s paternity created legal problems and prompted them to lodge an application in order to protect ORG \u2019s security .","On DATE the President of the ORG replied to the letter of CARDINAL DATE in which the applicant \u2019s representative raised complaints about the adoption proceedings . He explained that the applicant was not a party to the adoption proceedings . Furthermore , the President pointed out that the judge in charge of the case had met with the applicant and had asked him whether he had been willing to take care of GPE if the interim residence order had been quashed . However , the applicant had not shown willingness to take X. The applicant submitted that this statement was not true .","On DATE the ORG stayed the proceedings concerning the foster family application pending the outcome of the adoption proceedings .","On DATE the applicant asked ORG to initiate disciplinary proceedings against the judges of ORG .","On DATE ORG , acting as a guardian of X , lodged with the Bielsko - Bia\u0142a Regional Court an appeal against the judgment of CARDINAL DATE . She agreed with the determination of the applicant \u2019s paternity but challenged the court \u2019s decision to grant him parental responsibility for X. The applicant should not have been granted parental responsibility because he had applied for it only after the child had been placed with the prospective adopters . Moreover , while X was still in the orphanage the applicant had refused to take him as a foster parent either alone or together with his mother . X settled very well with ORG and ORG and considered them as his parents . The boy \u2019s health improved since his placement in the new family .","The applicant averred that the submissions made by ORG in her appeal were not true and included \u201c nasty insinuations and manipulation \u201d .","On DATE the applicant wrote a letter to the President of the ORG . The letter began with the following statement :","\u201c I do not agree with propositions in your letter of CARDINAL DATE ( ... ) sent to my representative ( ... ) . It is an expression of great hypocrisy to formulate nonsense like this : \u201c that I did not show willingness to take immediate steps to take care of [ X ] in case the interim residence order is quashed \u201d . This is clearly absurd because neither on DATE nor now can I undertake such care unless the judge has in mind some extraordinary circumstances and orders which existed in this case . I expressed the wish ( on DATE ) that [ X ] returned to the orphanage ( which in view of [ X ] \u2019s illnesses presented by the prospective adopters could have been the best solution for him , especially as these illnesses ( among others hernia ) were probably caused by taking [ X ] to another unknown environment ) . I would like to underline that I expressed on numerous occasions ( ... ) a wish to take care of [ X ] ( ... ) . \u201d","On DATE the ORG quashed the part of ORG judgment of CARDINAL DATE concerning parental responsibility for X. The case was remitted to ORG .","On DATE the ORG rejected the applicant \u2019s request to prosecute ORG and the judges of ORG on charges of perjury and corruption .","On DATE ORG , acting as a court of first instance in the paternity proceedings , gave judgment in which it granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X \u2019s upbringing . The court considered that the applicant had shown interest in taking care of X since his birth . However , his lack of confidence made him take only \u201c hesitant steps \u201d to obtain the custody of the boy . The court also pointed out that the applicant had denied that he had intended to take NORP only after he had become older . Moreover , it relied on expert evidence according to which the applicant understood the needs of the boy and accepted him . PERSON appealed this decision in her capacity of the guardian of X.","On DATE the ORG dismissed the request of ORG and ORG that they be served with a copy of a reasoned judgment of DATE . At the same time , the court rejected their appeal against ORG decision denying them standing in the paternity proceedings .","On DATE the ORG dismissed the ORG \u2019s appeal against ORG judgment of DATE . ORG filed a cassation appeal with ORG .","On DATE the applicant was granted standing in the adoption proceedings .","On DATE ORG dismissed a cassation appeal against the judgment of DATE lodged by ORG","On an unspecified date in DATE the Bielsko - Bia\u0142a District Court resumed the adoption proceedings .","In the meantime , on DATE the ORG gave judgment in which it dismissed an application for adoption lodged by ORG and ORG It also repealed an interim residence order of CARDINAL DATE . The court stated , inter alia , that :","\u201c During the paternity and adoption proceedings T ( ... ) C ( ... ) was refusing to agree to the adoption of his son . In the court \u2019s view , ( ... ) one can not find in the behaviour of T ( ... ) C ( ... ) an abuse of his rights even though the child has presently good conditions for his development . The motives of his behaviour did not contradict the well being of the child .","The court considers that in refusing his agreement to the adoption T ( ... ) C ( ... ) was guided by his feelings for his son . T ( ... ) C ( ... ) , whose paternity was determined by a court , has strong feelings for his son ( ... ) and finds separation from him hard to bear .","It should also be noted that since the birth of his son T ( ... ) C ( ... ) has been trying to [ obtain the custody ] of his son . However , due to the circumstances DATE for the most of which he can not be held responsible \u2013 and his personality , he has been unsuccessful[. As a result , ] an interim order was issued placing [ X ] with the prospective adopters . \u201d","On DATE the case concerning the first foster family application lodged on DATE was joined to the case concerning the second foster family application pending before ORG .","On DATE ORG made an interim residence order requiring X to reside with ORG and ORG until the end of the proceedings concerning the foster family applications . It pointed out that they had been providing care to X for DATE and that taking the boy by the applicant would be shocking for X. The applicant had never taken care of the boy and had not shown interest in his well being . Therefore , it was not certain whether the applicant would cope with the responsibilities of a parent and whether he fully understood the needs of his son .","On DATE the ORG dismissed the applicant \u2019s appeal against the order of DATE .","On DATE the O\u015bwi\u0119cim ORG granted the applicant visiting rights . He was allowed to visit X twice DATE .","On DATE ORG asked for an expert opinion on the emotional relationships between X on CARDINAL side and the applicant and ORG and ORG on the other side . The opinion was submitted to the court on DATE .","On DATE the ORG restricted the applicant \u2019s parental responsibility for X by placing the boy in the foster family of ORG and ORG At the same time it dismissed their request that the applicant be deprived of his parental responsibility and repealed the order appointing a curator . The court noted that X had been living with ORG and S.N for DATE and during that time had made up for retardation in his development . However , the boy still required special care and the applicant was unable to provide it . The applicant \u2019s misunderstanding of the reasons for which X was afraid of him and his mother showed that he knew very little about the behaviour of children . Moreover , the applicant had failed to notice obvious health problems of X while he had been living in an orphanage , such as attachment disorder and retardation in physical development .","The court further agreed with the conclusions of an expert opinion that ORG and ORG qualified for providing care to X while the applicant did not show understanding of the needs of the boy and would be unable to provide him with normal family life . It also observed that the applicant \u2019s commitment to taking X was in fact limited to writing numerous letters requesting the custody of the child . Since DATE , when the applicant had been granted visiting rights , he had visited X only once . The court was of the view that the removal of X from the custody of ORG and S.N could cause irreversible damage to him .","On DATE the applicant filed with ORG an appeal against the decision of DATE .","On DATE ORG dismissed the applicant \u2019s appeal .","On DATE the ORG dismissed an appeal lodged by ORG and ORG against the judgment of DATE rejecting their application for adoption .","In a letter of CARDINAL DATE the applicant informed the ORG that in view of the fact that the decision of DATE \u201c was based on dishonest grounds \u201d and \u201c gave the [ foster ] family even bigger advantage \u201d over the applicant , he decided to discontinue visiting his son as visits would \u201c create even bigger danger \u201d for X.","The custody and adoption of children is regulated by LAW ( PERSON i GPE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58220","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF COUEZ v. FRANCE","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award","judges":"Feyyaz G\u00f6lc\u00fckl\u00fc;N. Valticos;R. Pekkanen","text":["Mr Couez was born in DATE and lives at FAC d\u00e9partement of GPE ) .","On DATE he had a heart attack during the annual cross - country race held by the company of ORG ( Compagnies r\u00e9publicaines de s\u00e9curit\u00e9 \u2013 mobile security police units ) to which he belonged . After being on sick - leave from DATE and from DATE to DATE , he returned to work . On DATE he applied for extended sick - leave and asked that his heart attack and the subsequent periods of sick - leave should be recognised as work - related so that he would be covered by the rules applicable to police officers injured in the execution of their duty .","On DATE the inter - d\u00e9partement medical board recommended that the application for extended sick - leave should be refused . On CARDINAL DATE Mr Couez was notified of his authorities\u2019 refusal to grant him the leave . In a letter of CARDINAL DATE the Prefect of ORG region informed the applicant that the medical board had recommended that his sick - leave should not be regarded as having been work - related and that he should be declared permanently unfit for active police duties and be transferred to the administrative staff until his retirement at CARDINAL ; he stated that if either Mr Couez or ORG refused this transfer , the applicant would be retired on grounds of invalidity with immediate effect .","On DATE the applicant brought proceedings in ORG to challenge the ORG \u2019s decision of CARDINAL DATE to inform him that the medical board had refused to regard sick - leave on DATE as having been due to a work - related accident . On CARDINAL DATE he also applied for a stay of execution of that decision .","In the meantime , on DATE , PERSON had refused transfer to the administrative staff and on DATE ORG had declared him unfit for active police duties and had placed him on the ordinary sick list with retrospective effect from DATE .","In a judgment of CARDINAL DATE ORG refused the application for a stay of execution of the decision of DATE .","On DATE Mr Couez was sent on compulsory unpaid leave of absence ( disponibilit\u00e9 ) with effect from CARDINAL DATE , the date on which he had exhausted his entitlement to ordinary sick - leave . On DATE , in a fresh decision , he was maintained in the same position .","On DATE the ORG informed the applicant that a Dr B. had been designated to examine him with a view to his being retired on grounds of invalidity .","On DATE Mr Couez applied to ORG for an interim ruling by its President in the proceedings he had brought on DATE ( see paragraph CARDINAL above ) . In an order of DATE the President of ORG refused the application .","On DATE Mr Couez was retired on grounds of invalidity .","On DATE ORG made an interlocutory order for a medical report on the applicant .","On DATE it quashed the decisions of CARDINAL DATE and DATE in so far as they kept PERSON on compulsory unpaid leave of absence from DATE ; it also set aside the decision of DATE whereby he had been retired on grounds of invalidity ( see paragraph CARDINAL above ) ; the court held that the applicant should have been retired on DATE , when he had refused the transfer proposal that had been made to him ( see paragraph CARDINAL above ) .","On DATE Mr Couez had appealed against the interlocutory order of CARDINAL DATE , and that appeal was still pending in ORG on the date of delivery of the present judgment .","According to the Government , the applicant submitted CARDINAL pleadings between DATE ( the date of the application to ORG ) and DATE ( when that court gave judgment ) .","On DATE Mr Couez had also brought proceedings in ORG to challenge the decision of DATE whereby he had been sent on compulsory unpaid leave of absence ( see paragraph CARDINAL above ) . He subsequently withdrew these proceedings , and on CARDINAL DATE ORG delivered a judgment formally taking notice of the withdrawal .","On DATE the applicant appealed against that judgment , and the appeal was still pending in ORG on the date of delivery of the present judgment .","According to the Government , the applicant filed CARDINAL pleadings with ORG ( DATE and DATE ) and CARDINAL in ORG ( DATE and DATE ) .","The relevant sections of PERSON no . CARDINAL of DATE making provisions governing the civil service provide :","Section CARDINAL","\u201c A civil servant in post shall be entitled to :","\u2026","( CARDINAL ) sick - leave of DATE in all during a period of DATE in the event of duly certified illness making it impossible for the person concerned to carry out his duties . The civil servant shall then remain on full salary for DATE and shall be paid CARDINAL his salary for DATE","However , if the illness arises from one of the exceptional causes referred to in LAW or from an accident that occurred in the performance of his duties or when performing them , the civil servant shall be paid his full salary until he is able to resume his duties or is retired . He shall further be entitled to reimbursement of medical fees and expenses directly entailed by the illness or accident .","( CARDINAL ) extended sick - leave of a maximum length of DATE in cases in which it is established that the illness makes it impossible for the person concerned to carry out his duties , requires prolonged treatment and care , is disabling and has been confirmed as serious . The civil servant shall remain on full salary for DATE and shall be paid CARDINAL his salary for the following DATE \u2026 \u201d","Section CARDINAL","\u201c A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights .","Leave of absence is either granted at the civil servant \u2019s request or is compulsory at the end of the leave referred to in subsections ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of section CARDINAL above . A civil servant on leave of absence who successively refuses CARDINAL posts offered to him with a view to his reinstatement may be dismissed after consultation of the joint administrative committee . \u201d","Section CARDINAL","\u201c A civil servant who has become disabled as a result of a work - related accident entailing permanent disablement of PERCENT or an occupational disease may claim a temporary disablement allowance payable in addition to his salary and the amount of which shall be set as a fraction of the minimum salary \u2026 corresponding to the percentage of disablement .","The eligibility requirements and the arrangements for granting , assessing , paying and reviewing temporary disablement allowances shall be laid down in a decree issued after consultation of the PERSON d\u2019Etat which shall also specify the occupational diseases . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76317","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2006,"docname":"CASE OF AGGA v. GREECE (N\u00b0 3)","importance":4,"conclusion":"Violation of Art. 9;No separate issue under Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed","judges":"Loukis Loucaides","text":["On CARDINAL DATE the applicant was chosen to be ORG by the NORP who attended prayers at the mosques of that prefectural district . ORG appointed another mufti . However , the applicant refused to step down .","Fourth sets of criminal proceedings were instituted against the applicant under LAW for having usurped the functions of a minister of a \u201c known religion \u201d on the ground that on DATE and CARDINAL DATE he had issued and signed messages in the capacity of ORG .","The applicant was legally represented throughout the proceedings by lawyers of his own choice . The courts heard a number of prosecution and defence witnesses .","On DATE the single - member first instance criminal court ( monomeles plimmeliodikio ) of ORG found him guilty in DATE sets of proceedings on the ground that he had issued and signed messages in the capacity of ORG ( decisions ORG . CARDINAL , CARDINAL\/CARDINAL , DATE ) . On DATE the single - member first instance criminal court ( monomeles plimmeliodikio ) of ORG found the applicant guilty in the fourth set of proceedings on the same ground ( decision no . DATE ) . The applicant appealed .","NORP On DATE the CARDINAL - member first instance criminal court ( trimeles plimmeliodikio ) of PERSON upheld the applicant \u2019s conviction in the CARDINAL sets of proceedings . It imposed , as a whole , a sentence of CARDINAL months\u2019 imprisonment converted into a fine ( decisions nos . CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and DATE ) . He alleged that these convictions amounted to a violation of Articles CARDINAL , CARDINAL and DATE of the Convention .","On DATE ORG rejected the applicant \u2019s appeals concerning the CARDINAL sets of proceedings . It considered that the offence in LAW was committed \u201c when somebody appeared as a minister of a known religion and when he discharged the functions of the minister \u2019s office including any of the administrative functions pertaining thereto \u201d . The court considered that the applicant had committed this offence because he behaved and appeared as ORG . It further considered that the applicant \u2019s conviction was not contrary to Articles CARDINAL and CARDINAL of the Convention , because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a ORG . As regards LAW , ORG considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights ( judgment no . CARDINAL\/CARDINAL ) .","The relevant domestic law and practice are set out in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL ) , nos . CARDINAL\/CARDINAL and CARDINAL , \u00a7 \u00a7 DATE ."],"violated_articles":["9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92808","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2009,"docname":"ERNEWEIN AND OTHERS v. GERMANY","importance":2,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicants are CARDINAL natural persons who are all NORP citizens ( see list appended ) and an association , the \u201c NORP de p\u00e8res malgr\u00e9 - nous d\u2019Alsace - GPE \u201d ( OPMNAN ) . They were represented before the ORG by Mr A. Friederich , a lawyer practising in GPE .",", may be summarised as follows .","The applicants are orphans whose fathers died while serving in the NORP armed forces during the Second World War as \u201c malgr\u00e9 nous \u201d . The term \u201c malgr\u00e9 nous \u201d describes the CARDINAL or so male adults from GPE and PERSON who were forcibly conscripted into the NORP armed forces from DATE onwards ; CARDINAL of them died . To prevent these conscripts from deserting , members of their extended family were occasionally taken hostage . Some members of the families of \u201c malgr\u00e9 nous \u201d who had deserted the NORP armed forces were subjected to forced labour or sent to concentration camps as reprisals .","GPE as successor to ORG and the NORP Republic agreed on substantial compensation payments . On DATE ORG paid MONEY to GPE to indemnify NORP nationals who had been direct victims of NORP persecution . On the basis of the PERSON - German treaty of DATE , GPE made available MONEY to the \u201c ORG \u201d , ORG a foundation established under NORP law , which is responsible , inter alia , for distributing compensation payments to those who were forcibly conscripted ; GPE and the NORP Republic agreed that with these payments the \u201c malgr\u00e9 nous \u201d had been compensated . Orphans of deceased \u201c malgr\u00e9 nous \u201d were not eligible for compensation .","CARDINAL applicant lodged a petition with the NORP GPE . On DATE the GPE decided to discontinue the examination of the petition on the grounds that the NORP and NORP governments had agreed that the payments in DATE and DATE had been the final gesture ( abschlie\u00dfende PERSON ) towards the former NORP soldiers who had been forcibly conscripted into the NORP armed forces ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104491","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2011,"docname":"CASE OF GLUHAKOVIC v. CROATIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 8;Respondent State to take individual measures;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","NORP In DATE the applicant married A. However , in DATE , while she was pregnant , PERSON left the applicant and on DATE gave birth to a daughter , PERSON","Several separate proceedings concerning contact between the applicant and his daughter PERSON were conducted before ORG as well as before ORG ( hereinafter \u201c the LOC \u201d ) .","At DATE the applicant asked ORG to issue a decision regulating his contact with PERSON","On DATE the applicant complained to ORG that he saw his daughter only for TIME a week and that the child , who had started to recognise human faces , was scared of him because his face was not familiar to her . He requested to be allowed to see the child DATE , because he worked in GPE and his work schedule was organised in such a way that he worked for DATE and then had a fourth day off .","On DATE the applicant saw a psychiatrist at the suggestion of ORG personnel . A medical report drawn up by the psychiatrist indicated that the applicant was suffering from paranoid psychosis and recommended that contact between the applicant and PERSON be supervised by the child 's mother or another person . The psychiatrist reiterated that conclusion in his report of DATE .","On DATE ORG issued a decision giving custody of PERSON to the child 's mother and ordering that meetings between the applicant and PERSON take place DATE TIME at FAC hereinafter \u201c the FAC \u201d ) in the presence of the child 's mother and an employee of ORG .","On DATE ORG quashed the first - instance decision on the ground that it was necessary to hold an oral hearing before adopting a decision in the case . Nevertheless , the meetings between the applicant and PERSON were arranged at FAC .","On DATE ORG issued a decision ordering meetings between the applicant and PERSON DATE TIME at FAC in the presence of an employee of ORG .","The applicant lodged an appeal on DATE which was dismissed on DATE by ORG .","Meanwhile , on DATE A. brought a civil action in ORG seeking a divorce from the applicant . On DATE ORG adopted a divorce judgment ordering the applicant to pay maintenance for PERSON and also granting him contact with PERSON DATE TIME in the presence of a third person . The applicant lodged an appeal arguing , inter alia , that it was difficult for him to come to PERSON DATE , due to his work schedule in GPE . He further explained that in order to see his daughter on DATE , he often had to drive at TIME and was obliged to ask his colleagues to replace him at work , which caused him significant difficulties .","On DATE the ORG quashed the part of the judgment concerning contact between the applicant and PERSON and that part of the case was remitted to ORG .","For the purposes of the resumed proceedings before ORG , on DATE the ORG drew up a report on the meetings between the applicant and PERSON The report stated that the applicant and his daughter had been meeting regularly on ORG LOC since DATE and that they had developed a warm personal relationship . However , in view of the child 's age and needs , further meetings on ORG premises would not be possible because the premises were not considered appropriate .","At a hearing held on DATE a psychologist from ORG , PERSON , stated that the meetings between the applicant and his daughter had been held in the ORG 's kitchen or offices of its employees and that the ORG had no suitable space for the meetings .","That opinion was reiterated in a further report of CARDINAL DATE .","In the resumed proceedings ORG gave judgment on DATE granting contact between the applicant and PERSON DATE TIME when PERSON attended school in TIME , and TIME when PERSON attended school in TIME at FAC , in the presence of a member of staff . ORG based its decision on reports by a psychologist and a psychiatrist on the applicant 's mental health , commissioned for the purposes of the proceedings . The reports established that the applicant suffered from paranoid psychosis and stipulated that contact between him and PERSON should be supervised . ORG made no comments as regards the applicant 's argument about the time of the meetings and his work schedule .","As regards the place of the meetings , the relevant part of the judgments reads :","\u201c ... this court has ordered that contact ... between the child I.K.G. and her father still be held at the premises of ORG , under the supervision of a third person , to be designated by ... FAC ... because it finds that this decision is in the interests of the welfare of the child . An extension of [ the father 's ] parental rights ... is possible on the condition that he undergoes the treatment recommended in the report by the expert [ in psychiatry ] .","This court has ordered that contact take place on the premises of the Counselling Centre given that during these proceedings ORG did not make an adequate proposal as to the LOC on which contact \u2013 which should be limited in view of the father 's diagnosis \u2013 should take place . This court has also taken into account the fact that the [ child ] attends school on a changing schedule and has ordered contact accordingly ... \u201d","On DATE the applicant lodged an appeal , in which he again explained the situation regarding his work schedule . For that reason he sought an order for contact with PERSON DATE for a duration of TIME , or DATE , with PERSON spending TIME at his home . He also requested to spend CARDINAL of the DATE and DATE , CARDINAL of all bank holidays , and DATE , which was also PERSON 's birthday , with her .","On DATE ORG upheld the judgment of the first - instance court . It made no comments as to the applicant 's arguments related to his work schedule in GPE . The relevant part of the judgment concerning a suitable place for meetings between the applicant and his daughter reads :","\u201c On the basis of the report by ORG of DATE the first- instance court established that the [ opinion of ORG ] was that the meetings between the applicant and his daughter could no longer be held at the LOC of FAC because it was no longer suitable for the child 's needs and in this respect the [ first - instance ] court heard evidence from witness PERSON , a psychologist at ORG . On the basis of her evidence the first - instance court established that on several occasions ORG had sought the opinion of the Counselling centre about the meetings between the applicant and his daughter ; that the witness had actively participated in these meetings ; that the relationship between the applicant and his daughter was good ; and that the staff of the Counselling centre were of the opinion that the decision by LOC concerning contact should be altered , an opinion with which she personally agreed , in particular in view of the passage of time since the last decision by ORG , that the daughter had advanced in age and that the LOC of FAC were no longer suitable . However , she had no idea or suggestion as to a suitable location for the meetings or as to whether the presence of a third person was necessary . Finally , [ she was of the opinion ] that the meetings could also be held outside [ the centre ] , but in the presence of a third person given that the applicant suffered from certain disorders , [ which could lead to him acting overly ] suspicious .","...","On the basis of a further opinion by ... expert [ in psychiatry ] PERSON of DATE the first - instance court established that ... there were no reasons to restrict the rights the applicant had thus far enjoyed in connection with his contact with his daughter , and that a possible extension of his parental rights could be granted on the condition that he cooperated in his medical treatment .","Taking the above - mentioned report as a starting point ... the [ first - instance ] court ordered that the meetings between ORG and the applicant should continue at the premises of ORG in the presence of an expert ... since during the proceedings ORG had made no adequate proposal as to the LOC on which contact , which , in view of the applicant 's diagnosis , should be restricted , should take place . The [ first - instance ] court found that that decision had also taken into account that the daughter attended school on a changing schedule and ordered contact with her father accordingly . An extension of his parental rights ... was possible on the condition that he undergo treatment , as recommended in the opinion of the expert .","...","... in its reasoning the first - instance court cites correct and valid reasons which this court endorses completely . ... the first - instance court ordered that the meetings between the applicant and his daughter were to be held on the premises of FAC , because during the proceedings ORG did not make an adequate proposal as to suitable LOC for those meetings ... \u201d .","On DATE the applicant lodged a constitutional complaint . Inter alia , he reiterated his arguments about the time of the meetings with PERSON and his work schedule and the arguments concerning the suitability of the LOC for their meetings .","On DATE ORG dismissed the applicant 's constitutional complaint . It made no comments as to the applicant 's arguments about the time of the meetings and his work schedule and his arguments concerning suitable LOC for the meetings .","In the meantime , and subsequent to the judgment of ORG of DATE ( see paragraph CARDINAL above ) on DATE the applicant sought ORG to change the decision on contact between him and PERSON in view of his work schedule , and in view of the statement of ORG that there was no suitable space there for meetings between the applicant and PERSON He also stated that on DATE ORG had informed him that meetings were no longer possible on its LOC . The applicant asked that meetings between him and PERSON be held in his flat in PERSON .","In his submissions of CARDINAL DATE the applicant complained that he had not seen PERSON since DATE because ORG had been closed .","At a hearing held on CARDINAL DATE the applicant stated that he had had no contact with PERSON for DATE .","On DATE ORG ordered contact between the applicant and PERSON DATE a week for TIME on the premises of ORG in the presence of PERSON , a retired special needs expert . The relevant part of the decision reads :","\u201c ... this court has ordered that the meetings [ between the applicant and his ] daughter shall take place DATE a week for a duration of TIME , depending on the child 's school activities and DATE when the father is in GPE . Since the father is free DATE , because he works for DATE , he is always free on DATE .","Since the applicant had no adequate suggestion as to the premises of the meetings , this court holds that the meetings are to be held on the premises of ORG , which is the most suitable place [ in terms of ] space for the meetings . \u201d","On DATE the applicant lodged an appeal with ORG complaining that the meetings were not possible at ORG and asking that the meetings be held in his flat in GPE . He also complained that for DATE he had had no contact with PERSON","On DATE ORG submitted to ORG that they had no suitable place for meetings between the applicant and PERSON since , owing to a shortage of space , CARDINAL to CARDINAL staff members shared the same office . The only space where the applicant and PERSON could meet was the corridor , which , in the ORG 's view , was not a suitable location .","On DATE ORG upheld the decision of ORG of DATE and specified that meetings be held between the applicant and PERSON DATE TIME when PERSON attended school in TIME , and TIME when PERSON attended school in TIME at FAC , in the presence of PERSON The relevant part of the decision reads :","\u201c The assessment of the first - instance court as regards the place for the meetings is correct ...","... the first - instance court correctly assessed that , in view of the circumstances of the case , the most suitable place for the meetings could for now only be the premises of a ORG institution , since an institutional setting would enable an appropriate response to made to any unexpected situation . ...","... this court finds that the [ Rijeka Social Welfare Centre ] as a public institution responsible for ... implementation of measures aimed at protecting the interests of minor children , is obliged to enforce such measures , including the supervision of meetings between children and their parents , and to ensure that all necessary conditions are met . This includes [ providing ] the LOC for meetings where they can not be organised in a different manner .","...","... this court finds that it is in the interest of the daughter , irrespective of her current age ... , to meet her father DATE for TIME , depending on her school schedule , because DATE is , owing to the child 's DATE schedule , the most appropriate day . \u201d","On DATE , while his appeal against the decision of ORG was still pending , the applicant again requested ORG to change its decision on contact between him and PERSON He relied on the above allegations of the ORG about the shortage of space .","The applicant also reiterated his arguments as regards his work schedule .","On DATE ORG ordered contact between the applicant and PERSON DATE when the applicant was free for a duration of TIME in the presence of a third person . The parents were to find a solution as to the place of the meetings .","The applicant alleged that this judgment was not properly enforced because no suitable place for the meetings was found and the child 's mother refused to let him meet PERSON in his flat .","The relevant articles of LAW ( Ustav PERSON , ORG no . CARDINAL . of DATE , consolidated text ) provide :","\u201c Everyone has the right to respect and legal protection of his or her private and family life ... \u201d","The relevant part of LAW from DATE ( Obiteljski zakon , ORG no CARDINAL\/CARDINAL ) , in force until DATE , reads :","\u201c When parents do not live together a social welfare centre shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent , where it is not decided by this LAW that such decision is to be adopted by a court .","... \u201d","The relevant part of LAW ( Obiteljski zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL and DATE ) reads :","\u201c ( CARDINAL ) When parents do not live together a court shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent .","( CARDINAL ) In order to ensure the child 's welfare contact and meetings between the child and the parent he or she is not living with may be restricted or banned , and in view of the circumstance of each case a court may also designate a person who shall be present during contact .","... \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104873","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2011,"docname":"TSVETKOV v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant entered into a preliminary contract under which a Mr ORG undertook to sell to the applicant a plot of land . Shortly afterwards , ORG died .","On DATE the applicant brought an action against ORG \u2019s heirs before GPE , requesting the court to declare the contract final .","In these proceedings the applicant argued that ORG could have sold the land as he had obtained it through adverse possession . The defendants contested the claim , stating that the land had belonged to their father , a son of ORG , who had died before ORG and who had purchased the plot in DATE .","The court held a number of hearings in which the applicant participated without counsel .","By a judgment of DATE ORG dismissed the action , finding that the preliminary contract had been null and void ab initio as it had not determined with sufficient precision the boundaries of the disputed plot of land .","On an unspecified date the applicant filed an appeal with ORG .","The court held several hearings . At the hearing of DATE the applicant failed to appear . According to the record from the hearing , the court accepted a request , filed by the applicant \u2019s representative , for additional evidence to be obtained .","By a judgment of DATE ORG upheld the lower court \u2019s judgment .","On DATE the applicant filed a cassation appeal , presenting once again his arguments , namely that the preliminary contract had been valid as the plot had been identifiable and that ORG had acquired it through adverse possession . The defendants made submissions in reply , which were accessible to the applicant .","The hearing before ORG was listed for DATE .","On DATE the applicant requested the adjournment of the hearing on the ground of ongoing health problems . In support he presented a medical certificate .","At the hearing on DATE the defendants objected to the applicant \u2019s request for adjournment . They stated that the applicant had counsel who could represent him . Following deliberations , the court found that the applicant :","\u201c ... had had counsel in the proceedings before the second - instance court as evident from the legal representation contract [ between him and ] PERSON [ The latter ] was authorised to represent the [ applicant ] at all levels of the court proceedings ... \u201d","The court therefore found that the conditions for adjournment set out in LAW had not been met and proceeded with the hearing .","At the hearing the defendants requested that the cassation appeal be dismissed on the grounds already set out in their written submissions in reply to the cassation appeal .","By a judgment of DATE ORG dismissed the appeal . The court examined the arguments of the parties and agreed with the applicant that the preliminary contract had been valid . It found , however , that ORG had never obtained title to the plot .","The applicant has submitted a declaration by PERSON to the effect that he never acted as counsel for the applicant in the proceedings at issue .","At the material time the relevant court was under a duty to adjourn a hearing in the event that a party and his representative were not able to attend due to an impediment which the party could not have removed ( LAW ) . This provision was reproduced verbatim in LAW DATE ( Article CARDINAL \u00a7 CARDINAL ) .","At the material time the cassation appeal was to be submitted to the relevant Court of Appeal which was under a duty to send a copy to the other party . The other party was then entitled to submit , within DATE , submissions in reply to the cassation appeal . On expiration of this period , ORG was duty - bound to send both the cassation appeal and the reply to ORG , which would then examine the case in an open hearing ( Article CARDINAL \u00a7 CARDINAL in relation to ORG CARDINAL\u0433 and PERSON of LAW ) .","The Code of Civil Procedure DATE introduced new requirements and procedure for the admissibility of cassation appeals ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93948","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2009,"docname":"CASE OF GIULIANI AND GAGGIO v. ITALY","importance":3,"conclusion":"No violations of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 38;Non-pecuniary damage - award","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Vladimiro Zagrebelsky","text":["The applicants were born in DATE and DATE respectively and live in GPE and GPE .","On DATE , DATE and DATE the GCARDINAL summit was held in GPE . Numerous \u201c anti - globalisation \u201d demonstrations were staged in the city and substantial security measures were put in place by the NORP authorities . Under PERSON no . CARDINAL of DATE , the prefect of ORG was authorised to deploy armed forces personnel . In addition , the part of the city where the GCARDINAL were meeting ( the historic centre ) was designated as a \u201c red zone \u201d and cordoned off by means of a metal fence . As a result , only residents and persons working in the area were allowed access . Access to the port was blocked and the airport was closed . The red zone was contained within a yellow zone , which in turn was surrounded by a white ( normal ) zone .","With regard to the written orders issued by the officer in charge of the lawenforcement agencies , who was responsible for maintaining and restoring public order , the ORG submitted to the ORG service orders dated CARDINAL , DATE and DATE . Each of these orders began with the sentence : \u201c The present order amends and supplements service order no . CARDINAL of CARDINAL DATE concerning law enforcement and security at the GCARDINAL summit to be held in GPE from DATE , as follows . \u201d The order of CARDINAL DATE was not submitted .","The service order of DATE is the one issued DATE before the events . It sums up the priorities of the law - enforcement agencies as follows : establishing a line of defence within the \u201c red zone \u201d , with the task of repelling rapidly any attempt to break through ; establishing a line of defence within the \u201c yellow zone \u201d to deal with any incidents , taking account of the position of the demonstrators in various locations and of actions perpetrated by more extremist elements ; finally , putting in place publicorder measures on the streets concerned by the demonstrations , in view of the risk of violence encouraged by the presence of crowds of people .","The parties agreed as to the fact that the service order of DATE amended the plans hitherto established regarding the deployment of the available means and resources to enable the lawenforcement agencies to counter effectively any attempt to enter the red zone by participants in the demonstration by the FAC bianche ( \u201c White overalls \u201d ) which had been announced and authorised for DATE .","Referring to testimonies given during the criminal proceedings instituted against CARDINAL demonstrators ( see \u201c the trial of the CARDINAL \u201d below ) , the applicants stated that the service order of DATE gave the detachment of carabinieri concerned a \u201c roving brief \u201d , whereas it had previously been supposed to remain in CARDINAL location .","As regards the manner in which these instructions were circulated , the ORG stated that the orders issued and received by the officers on the ground were communicated orally . The applicants , meanwhile , referred to the evidence given to the public prosecutor and also in the context of the \u201c trial of the CARDINAL \u201d , in particular by Mr PERSON ( see paragraph CARDINAL below ) .","NORP The parties agreed that a radio communication system had been put in place , with an operations control room located in the questura ( police headquarters ) , which was in radio contact with the officers on the ground . The carabinieri and police officers could not communicate directly amongst themselves by radio ; they could only contact the control room .","The judgment given in the \u201c trial of the CARDINAL \u201d ( see below ) , which was added to the case file , makes clear that there had been some tensions before the GCARDINAL summit began . Hence , on DATE , a bomb had been sent to the carabinieri . On DATE a van containing an explosive device had been found near the ORG stadium , where accommodation was to be provided for the persons taking part in the large demonstration on DATE ( the FAC bianche march ) . On DATE law - enforcement officers went to the stadium to carry out checks . CARDINAL demonstrators were there . The search lasted for TIME and was conducted in the presence of journalists . The demonstrators showed their \u201c personal protective equipment \u201d in the form of Plexiglas shields and clothing designed to absorb the impact of possible clashes with the law - enforcement agencies .","The same judgment noted that on TIME CARDINAL DATE groups of particularly aggressive demonstrators , wearing balaclavas and masks ( the \u201c LOC \u201d ) had sparked numerous incidents and clashes with lawenforcement officers . At TIME the FAC bianche march was ready to set off from the ORG stadium . This was a demonstration involving several organisations : representatives of the \u201c No Global \u201d movement and of community centres , and young communists from the GPE comunista party . While they believed in non - violent protest ( civil disobedience ) , they had announced a strategic objective , namely to try to penetrate the red zone . For that reason the NORP police chief ( questore ) had decided on DATE to prohibit the FAC bianche procession from entering the red zone or the zone adjacent to it , and had deployed lawenforcement officers to halt the procession at FAC . Consequently , the demonstrators were able to march from the ORG stadium and all the way along PERSON to PERSON , that is to say , well beyond the junction of ORG and PERSON , where the events dealt with below took place . At TIME the procession set off and headed slowly westwards . As they proceeded , the demonstrators appeared calm and in good spirits , at least until they saw columns of smoke coming from the direction of PERSON and a burnt - out car on GPE , at which point some tension set in . There were signs of earlier disorder in the area around FAC . The procession was headed by a contact group made up of politicians and a group of journalists carrying video recorders and cameras . The procession slowed down and made a number of stops . Further down , around PERSON , there were incidents involving persons wearing masks and balaclavas and law - enforcement officers . The procession reached the railway tunnel at the junction with PERSON . Suddenly , tear gas was fired on the demonstrators by carabinieri under the command of Mr ORG .","Mondelli , commander of the Alpha company of carabinieri , had informed his headquarters that his radio could only receive messages and that he did not have a guide to Genoa who knew the streets well . He was on PERSON with CARDINAL carabinieri who were equipped with the new Tonfa truncheons , shields , new ORG gas grenades and guns for firing them , as well as flame - resistant suits and fire - fighting equipment . At TIME the communications centre ordered ORG to go quickly to PERSON , as the FAC bianche procession was on its way down PERSON . ORG agreed . Although there were CARDINAL possible routes to his destination , he chose the route which put the company at risk of crossing the path of the Tute bianche , taking them along PERSON to the intersection with PERSON . TIME the carabinieri , finding themselves in the path of the demonstrators , attacked FAC , first using tear gas , then advancing and using their truncheons . The procession was pushed back towards the east ( to the junction with FAC ) . The attack lasted for TIME . It had not been ordered either by the carabinieri control room or by the person authorised to do so . The carabinieri pushed the demonstrators back to the junction with PERSON . Once there , the demonstrators split up : some headed towards the seafront , while others sought refuge in ORG and then in the area around PERSON . Some demonstrators retaliated , finding hard objects such as glass bottles or rubbish bins and starting to throw them at the law - enforcement officers . Armoured vehicles belonging to the carabinieri drove up Via Casaregis and PERSON at high speed , knocking down the barriers erected by the demonstrators using containers , and forcing the demonstrators at the scene to leave . At TIME the control room ordered ORG to move away and allow the Tute bianche to pass . Once the attack was over , the carabinieri withdrew to Via Casaregis and then PERSON , to the north , before heading west along ORG .","Some of the demonstrators retaliated with violence and engaged in clashes with the law - enforcement agencies . At around TIME a group of demonstrators attacked an armoured carabinieri van and subsequently set it alight .","At TIME the presence of a group of demonstrators who appeared very aggressive was observed by , among others , the GPE battalion consisting of CARDINAL carabinieri stationed close to ORG .","Police officer PERSON ordered the carabinieri in question to charge the demonstrators . The carabinieri charged on foot , followed by CARDINAL Defender jeeps .","Shortly afterwards , however , the demonstrators succeeded in pushing back the attack by the law - enforcement agencies . The carabinieri withdrew in disorderly fashion near ORG , leaving the CARDINAL Defender jeeps which were bringing up the rear unprotected ( the public prosecutor , in his request to have the proceedings discontinued , described this as \u201c ripiegamento disordinato che lascia scoperti i due defender che si trovano QUANTITY del reparto \u201d ) . Pictures taken from a helicopter show the demonstrators running along ORG at TIME in pursuit of the lawenforcement officers .","The CARDINAL jeeps in question were blocking each other on Piazza Alimonda . When CARDINAL of the jeeps eventually managed to move out the other , owing to an error by the driver , remained stuck on PERSON , its exit blocked by an overturned waste container .","A group of demonstrators armed with stones , sticks and iron bars approached the jeep . The CARDINAL side windows at the rear and the rear window of the jeep were smashed . The demonstrators shouted insults and threats at the jeep 's occupants and threw stones at the vehicle .","There were CARDINAL carabinieri in the vehicle : PERSON , PERSON and PERSON .","One of them , PERSON ( \u201c LOC \u201d ) , was a DATE carabiniere trained in the use of grenades . Suffering from the effects of the tear - gas grenades he had thrown during earlier clashes , he had been given permission by Captain PERSON ( commander of the ECHO contingent within the CCIR \u2013 contingente di contenzione e intervento risolutivo ) to get into the jeep in order to get away from the scene of the earlier clash . Crouched down in the back of the jeep , injured and panicking , defending himself on CARDINAL side with a riot shield ( according to the statement of a demonstrator named PERSON ) and shouting at the demonstrators to leave \u201c or he would kill them \u201d , PERSON drew his Beretta QUANTITY pistol , pointed it in the direction of the smashed rear window of the vehicle and , after TIME , fired CARDINAL shots .","The first shot struck PERSON in the face , under the left eye , seriously injuring him . At the time he was no more than QUANTITY from the back of the jeep and had just picked up an empty fire extinguisher . Carlo Giuliani fell to the ground near the left - side rear wheel of the vehicle .","Shortly afterwards the driver , PERSON ( \u201c GPE \u201d ) , managed to restart the engine and , in an attempt to move the vehicle away , reversed , driving over Carlo Giuliani 's body . He then engaged first gear and again drove over the body as he left the square . The jeep then drove towards PERSON .","After \u201c QUANTITY \u201d , carabinieri ORG PERSON got into the jeep and took over at the wheel , \u201c as the driver was in a state of shock \u201d . Another carabiniere named PERSON also got in .","After the jeep had driven away a demonstrator , ORG , went over to Carlo Giuliani and observed that he was losing a large amount of blood , which was spurting from a wound near his left eye . PERSON noted that \u201c PERSON pulse was very rapid and weak \u201d . TIME , when several police officers and carabinieri arrived , PERSON moved away .","Police forces stationed on the other side of ORG intervened and dispersed the demonstrators ( according to the statement of Captain PERSON ) . They were joined by some carabinieri .","At PERSON ' p.m. a police officer present at the scene called the control room to request an ambulance . A doctor who arrived at the scene subsequently pronounced PERSON dead .","The moments leading up to the death of PERSON were reconstructed as follows in the ORG memorandum added to the file by the Government :","\u201c At TIME the sector received the service order and CARDINAL detachments took up positions close to the questura . After TIME the contingent was dissolved ; CARDINAL detachments remained .","Towards the end of the TIME the contingent was sent to PERSON , arriving after the clashes with demonstrators had ended . Police officer PERSON took over command of the contingent .","The men were stationed on PERSON , near FAC , and had a variety of objects thrown at them . From TIME the contingent , following the demonstrators , went along PERSON and arrived on PERSON , where the situation was relatively calm ; as a result , the contingent was reorganised . There were CARDINAL carabinieri present .","The CARDINAL Defender jeeps used to liaise between the contingents were at the scene . Officer PERSON and Captain PERSON decided to deploy the contingent on ORG , in the direction of PERSON , in order to deal with a group of demonstrators who had built a barricade using waste containers . The carabinieri were subjected to a barrage of stones and bottles . Fearing that other demonstrators coming from PERSON would join in , the carabinieri retreated on foot , leaving the CARDINAL jeeps which were at the rear of the contingent exposed .","In the momentary confusion the drivers of the CARDINAL jeeps attempted to withdraw as quickly as possible by reversing towards PERSON . In trying to turn around , the CARDINAL jeeps got in each other 's way ; the jeep driven by PERSON ( GPE ) was unable to complete the manoeuvre and found its way forward blocked by a waste container . TIME later demonstrators coming from ORG and PERSON reached the jeep . \u201d","Relying , inter alia , on evidence given by law - enforcement officers during the \u201c trial of the CARDINAL \u201d , the applicants described the circumstances surrounding the death of Carlo Giuliani as follows :","\u201c The procession of Tute bianche ( \u201c White overalls \u201d ) demonstrators arrived in FAC at TIME At TIME the law - enforcement agencies ( the company of carabinieri from the GPE battalion ) attacked them . The demonstrators were attacked CARDINAL times , with CARDINAL armoured vehicles , fire engines , tear gas and truncheons being used . The last attack took place at TIME","In the meantime the ECHO company DATE which had assisted the GPE battalion during some of the attacks \u2013 had taken up position at the intersection of FAC and ORG , under the orders of police officer PERSON . CARDINAL Defender jeeps joined them . The carabinieri were able to take off their gas masks , eat and rest .","At the same time the police took up positions on ORG , under the orders of police officer GPE .","With the situation calm , Captain PERSON ordered GPE and GPE to board CARDINAL of the CARDINAL jeeps . He thought it wise to allow the QUANTITY carabinieri to board , as they were mentally exhausted ( ' a terra ' ) and were no longer physically fit for duty . PERSON also considered that GPE should stop firing tear gas and took away his teargas gun and the pouch containing the tear - gas grenades .","At TIME the ECHO company , comprising CARDINAL men at that point , following an order from police officer PERSON , donned their gas masks and riot shields again and set off on foot along ORG towards ORG . A decision was taken in the presence of Lieutenant - Colonel PERSON to attack the procession . The CARDINAL jeeps followed the detachment . Several waste containers were being used as a barrier by the demonstrators . The ECHO company began to withdraw along ORG , towards PERSON , accompanied by the CARDINAL jeeps travelling in reverse . CARDINAL demonstrators followed the carabinieri . When it arrived on PERSON , the jeep in which GPE was travelling found its path blocked by a waste container . Demonstrators threw stones at the vehicle , and then a fire extinguisher , which fell to the ground .","PERSON moved towards an extinguisher which was lying on the ground . At that point one of the carabinieri in the jeep already had a pistol in his hand and was ready to fire . Carlo Giuliani took hold of the extinguisher and raised it up . It was TIME In the same instant he was struck by the fatal bullet . \u201d","With regard to the pistol , the applicants referred to the photographs in the investigation file , and stressed that it was being held horizontally and pointing downwards .","ORG asserted that it was impossible to indicate the exact number of carabinieri and police officers at the scene at the moment of PERSON death ; there had been CARDINAL carabinieri , QUANTITY from the jeep . In addition , QUANTITY away , near FAC , there had been a group of police officers ( reparto mobile della polizia di stato ) .","The applicants , for their part , referred to the statements made by Lieutenant - Colonel PERSON ( see below ) , who said that he had been QUANTITY metres or so from PERSON and TIME away from the jeep . The carabinieri ( CARDINAL of them ) had been QUANTITY from the jeep . The police officers had been at DATE , towards PERSON . The applicants further submitted that the photographs in the investigation file clearly showed some carabinieri QUANTITY from the jeep in question .","A film submitted by the applicants based on images in the investigation file shows several individuals and law - enforcement officers approaching the body of the victim . A bloodstained stone which does not appear at the beginning of the sequence of images can be seen at the end , close to the victim 's head . In addition , a police officer ( Mr PERSON ) near to Carlo Giuliani 's body is shown pointing at a demonstrator and shouting \u201c Sei stato tu , sei stato tu \u201d ( \u201c It was you ! It was you ! \u201d ) , after which lawenforcement officers are seen chasing after the demonstrator , to no avail .","Captain PERSON , who gave evidence at the \u201c trial of the CARDINAL \u201d ( hearing of DATE ) , stated that a young woman had approached PERSON body and lifted up the balaclava he was wearing . A starshaped wound was visible on the victim 's forehead . The young woman said that Carlo Giuliani was dead and that , in her view , he had not been killed by a stone . TIME after she had said this , police officer PERSON had begun to \u201c give vent to his feelings \u201d , as Captain PERSON put it ; this was later shown on television .","The GPE mobile police unit ( CARDINALrd division \u2013 offences against the person ) arrived on the scene at around TIME The report written by PERSON , a police officer with the FAC mobile police unit , stated that , at TIME , she had gone to PERSON with CARDINAL other police officers after information had been received from the control room that a young man had died . She had found the victim 's body covered with a sheet . She had done what she could to seal off the area ( by closing PERSON to the public ) in order to allow forensic officers to take down details . The victim 's face had been bare , as his balaclava was behind his head . Evidence had been taken from police officers GPE and PERSON ( see paragraphs CARDINAL - CARDINAL below ) .","A spent cartridge was found QUANTITY from FAC body . No bullet was found . A fire extinguisher , a bloodstained stone , some money , a craft knife , a mobile phone , a lighter and a set of keys were found beside the body and were seized by the police . It also emerges from the file that the public prosecutor 's office entrusted CARDINAL investigative measures to the police .","The jeep , after it left PERSON , and also the weapon and equipment belonging to GPE , remained in the hands of the carabinieri and were subsequently seized under a court order . A spent cartridge was found inside the jeep .","On the orders of the public prosecutor 's office , the body was taken to GPE hospital . It was identified by means of matching fingerprints in the database of the judicial authorities .","At TIME police officer GPE , who had been in charge of the group of police officers in PERSON , gave evidence in the office of the FAC mobile police unit . He said that he had seen a contingent of carabinieri on ORG being swept along ( \u201c travolto \u201d ) by a large number of demonstrators who were trying to attack the police officers . The CARDINAL Defender jeeps were cut off in the middle of the group of demonstrators ; they were surrounded and seriously damaged . Immediately afterwards , the CARDINAL jeeps managed to drive away . A man wearing a balaclava was lying on the ground . A fire extinguisher was nearby .","At TIME , in the office of the Genoa mobile police unit , police officer PERSON stated that he had gone to PERSON with his group of officers on the orders of officer GPE , and had seen the body of PERSON on the ground , bleeding profusely from the head . Nearby was a fire extinguisher . When the ambulance arrived , a doctor had tried to resuscitate PERSON , before pronouncing him dead and awaiting the arrival of the judicial officer .","On DATE Captain PERSON , who had been in charge of the ECHO company , recounted the events of DATE and gave the names of the carabinieri who had been in the jeep in question , which had been surrounded by a large group of demonstrators armed with iron bars , stones and planks of wood . He stated that , once the jeep had managed to drive away , the police officers on the other side of the square had intervened and dispersed the demonstrators , thereby revealing the body of a person wearing a balaclava lying on the ground . Captain PERSON said that he had heard no shots , probably because of his radio earpiece , his helmet and his gas mask , which reduced his hearing .","On DATE officer PERSON drafted an official memorandum which echoed the statements made by Captain PERSON concerning the events on PERSON .","On TIME CARDINAL of the CARDINAL carabinieri in the jeep at the time of the events were placed under investigation on suspicion of intentional homicide and gave evidence to the NORP public prosecutor 's office at the headquarters of the FAC carabinieri .","M.P. was an auxiliary carabiniere assigned to Battalion no . CARDINAL ( GPE ) , and CARDINAL of the members of the ECHO company constituted for the purpose of the GCARDINAL summit . Together with CARDINAL other companies from different regions of GPE , the company formed part of the ORG , under the orders of Lieutenant - Colonel PERSON . The ECHO company was under the orders of Captain PERSON and his deputies PERSON and GPE , and was directed and coordinated by PERSON , an officer ( vice questore ) of the GPE police . There was also a parachute battalion and units designated as GCARDINAL and GCARDINAL . Each of the CARDINAL companies was divided into CARDINAL detachments of CARDINAL men . The overall commander of the companies was Colonel PERSON ; ORG was deputy commander in charge of coordination .","M.P. , who was born on CARDINAL DATE and began serving as a carabiniere on DATE , was trained in the use of grenades and deployed to fire tear gas . He stated that during the public - order operation he had been supposed to move around on foot with his detachment . Having fired several tear - gas grenades , he had felt a burning in his eyes and face and had asked Captain PERSON for permission to get into the jeep being driven by F.C. Shortly afterwards , another carabiniere ( PERSON ) , who was injured , had joined them .","M.P. said that he had been very frightened , because of everything he had seen being thrown DATE , and was particularly afraid that the demonstrators would throw Molotov cocktails . He went on to explain that he had grown more afraid after being injured in the leg by a metal object and in the head by a stone . He said that he had become aware that the jeep was under attack because of the stones being thrown and had thought that \u201c CARDINAL of demonstrators were surrounding the jeep \u201d , although he added that \u201c at the time [ he ] fired the shots , no one was in sight \u201d . He said he had been \u201c in a panic \u201d . GPE described the moment when he had fired , saying that at some point he had realised that his hand was gripping his pistol . He had thrust the hand carrying the weapon through the rear window and , after TIME , had fired CARDINAL shots . PERSON did not give any details as to when he had removed the safety catch from his pistol . He maintained that he had not noticed PERSON behind the jeep either before or after firing .","The driver , ORG , who was born on DATE , had been serving as a carabiniere for DATE . He stated that he had been in an alleyway near FAC and had attempted to reverse towards the square , as the detachment was being pushed back by the demonstrators . However , he had found his path blocked by a waste container which he was unable to remove as his engine had stalled . He said that he had been concentrating his efforts on how to move the jeep out , while his colleagues inside the vehicle were shouting . As a result , he had not heard the shots from ORG 's pistol . Finally he stated : \u201c I did not notice anyone on the ground because I was wearing a mask , which partly blocked my view ... and also because it is hard to see properly out the side of the vehicle . I reversed and felt no resistance ; actually , I felt the left wheel jolt and thought it must be a pile of rubbish , since the waste container had been turned over . The only thought in my head was how to get out of that awful situation . \u201d","D.R. , who was born on DATE and had been performing military service since DATE ( carabiniere di leva ) , stated that he had been struck in the face and back by stones thrown by demonstrators , and had started to bleed . He had tried to protect himself by covering his face , while GPE , for his part , tried to shield him with his body . At that point , he could no longer see anything , but he could hear the shouting and the sound of blows and objects entering the jeep . He heard GPE shouting at their attackers to stop and go away , and immediately afterwards heard two shots .","On DATE GPE , on being questioned by the public prosecutor , confirmed his statement of DATE , adding that he had shouted to the demonstrators : \u201c Leave or I 'll kill you \u201d .","Sergeant - Major PERSON , who was in the other jeep which was stuck momentarily on PERSON , said that he had observed that the jeep in which GPE was travelling had its path blocked by a waste container and was surrounded by a large number of demonstrators , \u201c certainly more than CARDINAL of them \u201d . The demonstrators were throwing objects at the jeep . He saw in particular that CARDINAL protestor had already thrown a fire extinguisher at the rear window . The sergeant - major said that he had heard shots and seen PERSON fall down . He had also seen the jeep drive twice over Carlo Giuliani 's body . Once the jeep had succeeded in leaving PERSON , he went over to it and saw that GPE , the driver , had got out of the jeep and , visibly shaken , was asking for help . The sergeant - major took over the driving seat and , observing that GPE had a pistol in his hand , ordered him to replace the safety catch . He said that he had immediately thought that this was the weapon that had just fired the QUANTITY shots , but had said nothing to GPE , since the latter was injured and his head was bleeding . The driver ( GPE ) told him that he had heard shots while he was manoeuvring the jeep . The sergeant - major was not offered any explanation as to the circumstances surrounding the decision to shoot and did not ask any questions on the subject .","Carabiniere PERSON said that he had gone over to the jeep on foot . He had seen that GPE 's pistol was drawn and had asked GPE if he had fired . GPE said that he had , without specifying whether he had fired into the air or in the direction of CARDINAL of the demonstrators . Mr PERSON said that GPE kept saying : \u201c They wanted to kill me , I do n't want to die \u201d .","On DATE the public prosecutor heard evidence from Captain PERSON , who had been in command of the company of carabinieri to which GPE was assigned during the GCARDINAL summit , under the orders of Lieutenant - Colonel PERSON . Captain PERSON stated that he had given GPE permission to get into the jeep and had taken his tear - gas gun as GPE was experiencing difficulties . He stated subsequently ( at the \u201c trial of the CARDINAL \u201d , hearing of DATE ) that GPE had been physically unfit to continue on account of his mental state and nervous tension . Captain PERSON had then moved with his men \u2013 CARDINAL in DATE to the corner of ORG and ORG . PERSON stated that he was requested by police officer PERSON to proceed up ORG in the direction of ORG to assist the men engaged there in trying to push back the demonstrators . He said he had been puzzled by the request , given the number of men with him and their state of tiredness . Nevertheless , PERSON and his men had taken up positions on ORG . The carabinieri were forced back by the demonstrators coming from ORG ; they initially withdrew in an orderly manner , and then in disorderly fashion . PERSON stated that he had not realised that , when the carabinieri withdrew , they were being followed by CARDINAL Defender jeeps , as there had been no \u201c operational reason \u201d for the vehicles to be there . He further stated that the demonstrators had dispersed only when the mobile police units stationed on the other side of ORG had intervened , and that only then had he observed a man wearing a balaclava lying on the ground , apparently seriously injured . Finally , Captain PERSON said that some of his men had been wearing helmets equipped with video cameras , which would help to shed light on the sequence of events , and that the video recordings had been handed over to Colonel PERSON , who was in charge of the LOC .","Lieutenant - Colonel PERSON stated that he had stopped QUANTITY from ORG and TIME QUANTITY from the jeep , and had seen the jeep drive over a body lying on the ground .","On DATE Mr PERSON gave evidence to the public prosecutor . He stated that on DATE he had reported at TIME to the location where he was due to commence duty in charge of CARDINAL men . TIME , as no one had turned up , he made inquiries of the questura and was told that the service orders had been changed . Mr PERSON later stated ( during the \u201c trial of the CARDINAL \u201d , hearing of DATE ) that he had been informed on DATE that no march was authorised for DATE . On DATE he had been unaware that an authorised march was due to take place . He was requested to go to near the fairground and join a contingent of a CARDINAL carabinieri in order to patrol the area . PERSON was not able to make contact with the contingent and its captain \u2013 Captain PERSON \u2013 until TIME He went to PERSON , where clashes were taking place with demonstrators . At TIME , in a moment of calm , Lieutenant - Colonel PERSON and the CARDINAL jeeps joined the contingent . Lunch was eaten . The contingent was involved in clashes on PERSON TIME It then arrived at ORG and ORG . Lieutenant - Colonel PERSON and the CARDINAL jeeps came back . The contingent was reorganised . PERSON stated that he had observed a group of demonstrators at the end of ORG who had formed a barrier using wheeled waste containers and were advancing towards the lawenforcement officers . He said that he had asked Captain PERSON whether his men were in a position to deal with the situation and that PERSON had replied in the affirmative . PERSON and the contingent therefore took up positions close to ORG . He heard an order to withdraw and took part in the disorderly withdrawal of the contingent .","Some demonstrators present at the time of the events also gave statements . Some of them said they had been very close to the jeep and had themselves thrown stones and had struck the jeep with sticks and other objects . CARDINAL demonstrator said that GPE had cried : \u201c Bastards , I 'm going to kill the lot of you \u201d . Another had observed that GPE , inside the jeep , had taken out his pistol ; the demonstrator had then shouted to his friends to be careful and had moved away . Another demonstrator said that GPE was protecting himself on one side with a riot shield ( see paragraph CARDINAL above ) .","Some individuals who witnessed the events from the windows of their homes said they had seen a demonstrator pick up a fire extinguisher and raise it up . They had heard CARDINAL shots and had seen the demonstrator fall to the ground .","During the investigation the public prosecutor 's office ordered the lawenforcement agencies to hand over any audiovisual material which might help in reconstructing the events that had taken place on ORG . During the public - order operation photographs had been taken and video recordings made by film crews , helicopter cameras and miniature video cameras in the helmets of some of the law - enforcement officers . Pictures taken by private individuals were also available .","Within TIME an autopsy was ordered by the public prosecutor 's office to establish the cause of death . On DATE at CARDINAL p.m. notice of the autopsy \u2013 specifying that the injured party could appoint an expert and a lawyer DATE was served on the first applicant .","At TIME Mr Canale and PERSON , the experts appointed by the public prosecutor 's office , were officially sworn in and work commenced on the autopsy . The applicants did not send any representative or expert of their own .","The mandate issued to the experts read as follows : \u201c The experts must indicate the cause of PERSON death and state whether the determining factors in that regard included external factors such as toxic chemical substances . If death was caused by one or more shots from a firearm , the experts should indicate the number of shots fired , the point of impact , the route taken by the bullet or bullets in the body , the position of the victim relative to the person who fired the shots and , if possible , the distance from which the shots were fired and whether there was a lethal struggle before the fatal wounding . \u201d","When the autopsy was completed , the body was released to PERSON relatives , who wished to have it cremated . In view of the complexity of the issues , the experts requested the public prosecutor 's office to give them DATE to prepare their report . The public prosecutor 's office granted the request .","On DATE the public prosecutor 's office authorised the cremation of PERSON body in accordance with the family 's wishes .","The expert report was submitted on DATE . The experts noted that ORG had been struck below the left eye by a bullet which had passed through the skull and exited through the rear of the skull on the left . The bullet 's trajectory had been as follows : it had been fired from a distance exceeding QUANTITY and had travelled from front to back , from right to left and in a downward direction . PERSON had been QUANTITY tall . The person firing the shot had been facing the victim and slightly to his right . According to the experts , the bullet injury to the head was so severe that it would have resulted in death within TIME . The jeep being driven over the body had resulted only in minor injuries of no significance to the organs in the thorax and the abdomen .","After leaving PERSON the CARDINAL carabinieri who had been in the jeep went to the casualty department of GPE hospital in GPE . GPE complained of diffuse bruising in his right leg and an injury to the skull with open wounds ; against the advice of the doctors , who wished to admit him , PERSON signed a discharge and left the hospital at TIME He had an injury to the skull which , he said , had been caused by a blow to the head with a hard object while he had been in the jeep . According to the doctors , PERSON 's condition was not life - threatening .","D.R. presented with bruising and abrasions to the nose and the right cheekbone and bruises on the left shoulder and left foot . ORG had a posttraumatic psychological disorder expected to be cured within DATE .","The forensic medical reports drawn up to establish the exact nature of the injuries and their connection with the attack on the jeep 's occupants concluded that the injuries sustained by GPE and GPE had not been lifethreatening . The report found that GPE 's head injuries could have been caused by a stone thrown at him , whereas it was not possible to determine the origin of his other injuries . As to PERSON , the injury to his face could have been caused by a stone being thrown at him , and his shoulder injury by a blow from a wooden plank .","On DATE the public prosecutor 's office instructed Mr ORG to establish whether the CARDINAL spent cartridges found at the scene ( one in the jeep and the other QUANTITY from FAC body ) had been fired from the same weapon , and in particular from LOC 's weapon . In his report of DATE , the expert concluded that there was a PERCENT probability that the cartridge found in the jeep had come from ORG 's Beretta pistol , whereas there was only a PERCENT probability that the cartridge found close to PERSON body had been fired from the same pistol . This expert examination was carried out unilaterally under LAW , that is to say , without the injured party having an opportunity to participate .","DATE . The public prosecutor 's office appointed a second expert , police inspector PERSON . The latter , in a report submitted on DATE , concluded that there was a PERCENT probability that the spent cartridge found near the victim 's body had come from GPE 's weapon . He concluded that both the cartridges had been fired from GPE 's pistol . As to the distance between LOC and Carlo Giuliani at the moment of impact , he estimated it at QUANTITY . The expert examination was conducted unilaterally .","On DATE the public prosecutor 's office instructed a panel of experts , made up of PERSON , PERSON , PERSON and PERSON , \u201c after examining the video and photographic material and the detailed maps in the file , the items seized and the expert reports already carried out , to reconstruct , if only in virtual form , the actions of ORG and PERSON in the moments immediately before and after the bullet struck the victim 's body . In particular , [ the experts were instructed ] to ascertain the distance between GPE and PERSON , their respective angles of view and PERSON 's field of vision inside the jeep at the moment the shots were fired \u201d . It appears from the file that PERSON had published an editorial article in DATE in a specialist review ( ORG ) , in which he had expressed the view that ORG had acted in selfdefence .","The experts were given permission to consult all the documents , audiovisual material and expert reports held by the public prosecutor 's office . Representatives and experts appointed by the applicants attended the expert examinations . According to the TIME , the applicants were represented by PERSON , who said he did not wish to make an application for the immediate production of evidence ( incidente probatorio ) .","An on - site inspection was conducted on DATE . On that occasion , traces of the impact of the second pistol shot were found on the wall of a building on FAC , at a height of QUANTITY .","On DATE the expert report ( entitled : \u201c Study of the dynamic of events leading to the death of Carlo Giuliani based on analysis of the images \u201d ) was submitted to the public prosecutor 's office . The report was aimed at determining the position of the QUANTITY persons concerned and the distance between them when the shot was fired , in order to establish the angle of view . The experts stated at the outset that the fact that they had not had access to PERSON body ( because it had been cremated ) had been a major obstacle which had prevented them from producing an exhaustive report , as they had been unable to re - examine parts of the body and search for micro - traces .","First of all , on the basis of the \u201c little material available \u201d the experts attempted to establish what the impact of the bullet had been on PERSON body . According to the experts , the injuries to the skull were very serious and had resulted in death \u201c within a short space of time \u201d . They further found that the bullet had not exited whole from Carlo Giuliani 's head ; the scan performed before the autopsy showed an opaque piece of metal which looked like a fragment of bullet casing . As to the entry wound on the face , its appearance did not permit an unequivocal interpretation ; its irregular shape was explained chiefly by the type of tissue in that part of the body . However , CARDINAL possible explanation was that the bullet had not struck Carlo Giuliani directly , but had encountered an intermediate object which could have distorted it and slowed it down before it reached the victim 's body . That hypothesis tallied with the small dimensions of the exit wound and the fact that the bullet had fragmented inside Carlo Giuliani 's skull .","On the basis of this hypothesis , the experts then searched for traces and reported finding a small fragment of lead , probably from the bullet . As it had come off PERSON balaclava when the latter was being handled , it was impossible to ascertain whether the fragment had come from the front , side or back of the balaclava . That said , the experts observed traces of a substance which was not part of the bullet as such , but came from material used in the construction industry . In addition , micro - fragments of lead were found on the front and back of the balaclava , apparently confirming the hypothesis that the bullet had lost part of its casing at the moment of impact .","As to the nature of the \u201c intermediate object \u201d , the experts stated that it had not been possible to establish what it might have been , but ruled out the possibility that it was the fire extinguisher which Carlo Giuliani had been holding in his outstretched hand .","Finally , as to the distance from which the shot had been fired , the experts estimated it at CARDINAL .","NORP In order to reconstruct the events based on the \u201c hypothesis of a collision with an object \u201d , the experts then had some test shots fired and conducted video and computer simulations . Their conclusions were as follows : if the bullet had struck another object , they could not establish its trajectory , which would undoubtedly have been altered as a result . On the basis of video footage showing a stone disintegrating in the air and of the shot that could be heard on the soundtrack , the experts concluded that the stone had shattered immediately after the shot had been fired .","On the basis of a computer simulation , the experts concluded that the bullet fired upwards by ORG had struck PERSON after colliding with the stone in question , which had been thrown at the jeep by another demonstrator . The experts estimated the distance between Carlo Giuliani and the jeep at QUANTITY when the shot was fired and judged that , at that precise moment , GPE had been able to see PERSON .","DATE . The applicants submitted a statement made to their lawyer by PERSON , CARDINAL of the demonstrators , on DATE . PERSON stated in particular that Carlo Giuliani had still been alive after the jeep had driven over his body and that he , PERSON , had drawn officers ' attention to the injured man , shouting out something like \u201c Doctor , hospital ... \u201d . When the law - enforcement officers arrived , PERSON had left .","The applicants subsequently submitted a statement made by a carabiniere ( V.M. ) , who reported a widespread practice among lawenforcement officers consisting in altering bullets of the kind used by ORG in order to make them more likely to expand and hence break up .","Lastly , the applicants submitted CARDINAL expert reports drawn up by experts they themselves had appointed . According to CARDINAL of the experts , Mr Gentile , the bullet had already been in fragments when it struck the victim 's body . The fact that it had fragmented could be explained by a defect in the bullet or by its having been manipulated to make it more likely to break up . PERSON considered that this occurred in a limited number of cases ; accordingly , it was a less likely hypothesis than the one put forward by the prosecuting authorities ' experts ( namely that the bullet had struck an object during its trajectory ) .","The other experts instructed by the applicants to reconstruct the events ruled out the possibility that \u201c the stone \u201d had shattered after colliding with the bullet fired by ORG ; in their view it had shattered against the jeep . According to the experts , in order to reconstruct the events on the basis of the audiovisual material , and especially of the photographs , it was necessary to establish the exact position of the photographer , and in particular his or her angle of vision , taking into account also the type of equipment used ( focal length , type of camera body or video camera ) . In addition , it was necessary to establish the timing of the images and how they fitted in with the sound . The experts also challenged the method used by the prosecution authorities ' experts , who had based their analysis on \u201c video and computer simulations \u201d and had not analysed the available images rigorously and in depth . Similar criticisms were made of the method used to perform the test shooting , which , in the view of the applicants ' experts , was not reliable .","The applicants ' experts concluded that PERSON had been QUANTITY away from the jeep when the shot was fired and that , while it was undeniable that the fatal bullet had been in fragments when it struck PERSON , the possibility of its having collided with the stone which could be seen in the picture in question should be ruled out , in particular because a stone would have distorted the bullet in a different way and left different marks on PERSON body . Moreover , PERSON had not fired in an upward direction .","NORP The public prosecutor noted first of all that far - reaching changes had been made to the organisation of the public - order operation on TIME DATE , and took the view that this partly explained the problems that had arisen on DATE . However , he did not detail the changes or the problems that had resulted .","On the basis of the evidence in the file , the public prosecutor reconstructed the events leading up to the death of PERSON . As to the decision to position men in ORG in order to block the path of the demonstrators in PERSON , the public prosecutor noted that Mr PERSON 's version of events was at variance in some respects with that of Captain PERSON : whereas Mr PERSON spoke of a decision taken by mutual agreement , Captain PERSON maintained that the men had taken up position on the basis of a unilateral decision by Mr PERSON , in spite of the potential risks involved ( on account of the small size of the detachment and the fact that the men were tired ) .","NORP The public prosecutor then examined the expert reports and noted that the different experts agreed in particular on the fact that CARDINAL shots had been fired from GPE 's pistol , the first of which had fatally wounded PERSON ; that the bullet in question had not fragmented merely as a result of striking Carlo Giuliani 's body ; and that the photograph of Carlo Giuliani holding the fire extinguisher had been taken when he was QUANTITY away from the jeep .","However , the experts differed on the following points in particular :","( a ) according to the experts appointed by the public prosecutor 's office , PERSON had been QUANTITY away from the jeep at the moment he was wounded ( QUANTITY away according to the PERSON family 's experts ) ;","( b ) the relative timing of the image of the stone and the sound of the gunshot ( according to the PERSON family 's experts , the shot had been fired before the stone could be seen , contrary to the view of the prosecution authorities ' experts ) .","Given that the parties agreed that the bullet had fragmented before striking the victim 's body , the public prosecutor concluded that they also agreed as to the causes of the bullet 's fragmentation , and that the applicants subscribed to the \u201c theory of the bullet having been deflected by a solid object \u201d . The relevant parts of the request for the proceedings to be discontinued read as follows :","\u201c The points on which there is no substantial disagreement are outlined below :","...","Before striking PERSON , the bullet encountered an object in its path which caused it to fragment partially .","The footnote reads as follows . On page CARDINAL of the expert report of DATE the expert , PERSON , states : ' In short , all the available evidence points to the fact that the bullet , before striking the face of PERSON , made contact with a hard object ( intermediate target ) capable of slowing down its trajectory significantly and damaging its casing , making it likely to break up , and of leaving traces on the lead core . ' The PERSON family 's expert , PERSON , for his part , stated as follows on page CARDINAL of the expert report which he submitted on DATE : ' We can not but share the assessment of Professor PERSON that a bullet of that calibre , which conformed to ORG standards , would not ( the negative was added by PERSON by hand on DATE during the confrontation between the experts ) have fragmented as the sole result of the final impact with the victim . \u201d","Other possible explanations for the fragmentation of the bullet advanced by the applicants \u2013 such as the manipulation of the bullet in order to make it more likely to fragment , or a manufacturing defect DATE were considered by the applicants themselves as \u201c much less likely \u201d . Given the lower degree of probability , these hypotheses could not \u2013 according to the public prosecutor \u2013 be regarded as valid explanations .","Before moving on to legal considerations , the public prosecutor observed that the investigation had been lengthy , owing in particular to delays with some of the expert reports , the \u201c superficial nature \u201d of the autopsy report and the errors made by CARDINAL of the experts , Mr PERSON . The public prosecutor then observed that the investigation had been completed and that all the relevant issues had been addressed in detail . In conclusion , he said that the hypothesis of the bullet having been fired upwards and deflected by a stone thrown into the air was \u201c the most convincing \u201d . However , the public prosecutor considered that there was insufficient evidence in the file to determine whether GPE had fired the shots with the sole intention of dispersing the demonstrators or had knowingly run the risk of injuring or killing CARDINAL or more of them . CARDINAL possibilities had been considered , and \u201c the matter would never be resolved with certainty \u201d :","\u2013 the first possibility was that the shots had been designed to intimidate the demonstrators and that it was therefore a case of causing death by negligence ;","\u2013 the second possibility was that GPE had fired the shots in order to put a stop to the attack and had accepted the risk of killing someone ; that would mean that it was a case of intentional homicide ;","\u2013 the third possibility was that GPE had aimed at Carlo Giuliani ; this would also be intentional homicide .","In the view of the public prosecutor , the evidence in the file was sufficient to rule out the third possibility .","The public prosecutor further considered that the bullet 's having collided with the stone was not capable of severing the causal link between ORG 's actions and PERSON death . That link remained ; the question was whether PERSON had acted in self - defence .","In the public prosecutor 's view , it had been proven that the physical integrity of the jeep 's occupants had been under threat and that GPE had been \u201c responding \u201d in the face of danger . That said , PERSON 's response had to be examined in terms of both its necessity and its proportionality , \u201c the latter aspect being the more delicate \u201d .","As to whether ORG had had any other option and could have been expected to act differently , the public prosecutor replied in the negative , giving the following reasons : \u201c ... the jeep was surrounded by demonstrators and the physical aggression against the occupants was patent and virulent ... \u201d . PERSON had been justified in perceiving his life to be in danger . The pistol had been an instrument capable of putting a stop to the attack , and GPE could not be criticised for the choice of the equipment issued to him . From a legal viewpoint , GPE could not be expected to refrain from using his firearm and submit to an attack liable to endanger his physical integrity .","In the light of these considerations , the public prosecutor requested that the proceedings be discontinued .","On DATE the applicants lodged an objection against the request for the proceedings to be discontinued . Referring to the fact that the prosecution authorities themselves had acknowledged that the investigation had been flawed and raised doubts which had not been resolved with certainty , they argued that adversarial proceedings were essential in order to arrive at the truth .","As to GPE , the applicants disputed the theory that the bullet had been deflected by a stone . In their view , it was impossible to argue simultaneously that GPE had fired into the air and that he had acted in selfdefence , particularly since GPE had said he could not see PERSON when he had fired the shot .","The applicants further observed that the theory that the bullet had been deflected by an object had been put forward DATE after the events by an expert appointed by the public prosecutor 's office , and was based on pure supposition not backed up by objective evidence . The applicants ' expert had stated that a collision with a stone would have distorted the bullet in a different manner . In addition , the applicants referred to the statement reporting the practice of modifying bullets in order to make them more likely to expand and hence to fragment .","With regard to ORG , the applicants observed that the file showed that Carlo Giuliani had still been alive after the jeep had driven over his body . In that connection they pointed out that the autopsy report , which found that no appreciable injuries had been caused by the jeep driving over the body , had been described as superficial by the public prosecutor .","In the light of these considerations , and having criticised the decision to entrust a number of investigative measures to the carabinieri , the applicants demanded that a trial be held in order to establish responsibility for PERSON death .","In the alternative , the applicants requested that further investigative measures be undertaken , in particular :","( a ) that an expert report be prepared aimed at establishing the causes and the time of PERSON death , in order to ascertain in particular whether he had still been alive when the jeep drove over his body , and afterwards ;","( b ) that evidence be heard from the chief of police , Mr PERSON , and from carabiniere Zappia , to establish what instructions had been given regarding the wearing of weapons on the thigh ;","( c ) that the person who had thrown the stone in question be identified and traced ;","( d ) that further evidence be heard from the demonstrators who had come forward ;","( e ) that evidence be heard from the carabiniere PERSON , who had reported the practice of cutting the tips of bullets in order to increase their impact ;","( f ) that an expert examination be carried out on the spent cartridges and on the weapons of all the police and carabinieri on ORG at the time of the events .","The hearing before the investigating judge took place on DATE . The verbatim record of the hearing shows that the applicants maintained their argument that the bullet had not broken up after colliding with the stone . They ruled out the possibility that the bullet had been deflected and submitted that it had struck the victim 's body directly . Mr Vinci , the applicants ' representative at the hearing , stated with regard to the theory that the bullet might have been modified in order to make it more effective , in line with the practice reported by CARDINAL witness : \u201c Obviously , we do not have any proof ; it is a case of evidence adduced in order to advance different hypotheses . Naturally we can not assert , nor do we wish to , that GPE did that . \u201d","NORP The public prosecutor who attended the hearing said he had the impression that \u201c certain points which [ he had ] believed to be the subject of mutual agreement were in fact not ; on the contrary , there were divergences of opinion \u201d . He pointed out that the applicants ' expert , PERSON , had been in agreement as to the fact that the bullet had been damaged before striking PERSON , and had acknowledged that one of the possible causes of the damage was a collision with some object or an intrinsic defect in the bullet , and that the second hypothesis was less likely than the first .","By an order lodged with the registry on CARDINAL DATE , the Genoa investigating judge discontinued the proceedings .","In seeking to reconstruct the events the judge referred to an anonymous account posted on an anarchist website ( www.anarchyCARDINAL.net ) , which the judge considered to be credible given that it concurred with the audiovisual material and with the witness statements .","\u201c [ I]t is particularly interesting to study the description , which is included in the file , posted by an anonymous participant in the demonstrations on an Internet site with possible links to NORP anarchists ( www.anarchyCARDINAL.net ) . This provides a detailed and clearly accurate account , as testified by the details emerging from the videos and photographs and from the testimonies in the file , and can therefore be used as a basis for a precise reconstruction of the events as regards both the movements of the demonstrators at the location where Carlo Giuliani died and the assessment of the number and conduct of the demonstrators and the law - enforcement agencies in the moments leading up to the young man 's death . \u201d","The website in question described the situation on PERSON and a charge by demonstrators against the carabinieri . The charge was led by demonstrators throwing anything that came to hand , followed by others carrying containers , rubbish bins , etc . for use as mobile barricades . The atmosphere on the square was described as \u201c frenetic \u201d . The following passage was reproduced in the judge 's decision :","\u201c ... I really do n't think that many of us on that march went as far as the centre of the area where the clashes were taking place , where PERSON narrows and becomes PERSON ...","There were CARDINAL of people in the area close to the clashes who were resting , watching or getting some air after having tear gas fired at them . I kept on going towards PERSON . There were still a lot of people and I could see the first signs of clashes ... There really were lots of people carrying equipment or parts of equipment in the style of the FAC bianche ...","I carried on further . There were still a lot of people . There were CARDINAL of people in the front lines of rioters ... Not long after I joined the front lines , the demonstrators began a major counter - attack ... CARDINAL of people started to advance towards the cops . Gradually , more and more missiles were being thrown at the police lines . Stones were starting to rain down . More and more were hitting them ... They were getting them right in their faces and they could all see that behind the CARDINAL of people attacking them there were another CARDINAL or CARDINAL further up the street who were starting to follow the front lines , coming thicker and faster , heading straight for them . People were shouting \u201c ORG ! ORG ! \u201d .","Then the police ranks began to break up ... Everyone charged , shouting and throwing anything they could find ... People grabbed all the missiles lying on the ground . Every QUANTITY , the things thrown at the cops were picked up and reused straight away . The stone throwers were now moving forward strongly and quickly . A little way behind , CARDINAL of people were running along carrying bins , containers , railings , etc . , so that they were moving the barricade while charging forward in a series of short bursts . The atmosphere was frenetic . The level of violence was really high . Tear gas was being fired frantically from the back of what was left of the police lines . That slowed us down . The vehicles managed to find a way out . The cops started to re - form their lines . I think we pushed them back QUANTITY . It must have taken them a long time to gain that much ground , and we made them lose it again in TIME . People started to gather ammunition for a fresh attack ( picking up and making piles of missiles and parts for mobile barricades , forming large groups behind the front lines ... ) . The cops had just taken a hammering and were destabilised , on the defensive . That must have been why they sent CARDINAL cops down the small side street , to the left of the front lines of demonstrators . They must have thought that the front lines would be afraid of a charge from the side that would cut them off from the rest of the demo ( and which would have been followed immediately by a head - on charge ) and were going to withdraw slightly to ease the pressure on the police in FAC . Or maybe they were trying to deter us from spreading out into the little streets on the left and widening the circle of the clashes . I do n't know why they did it but , in any case , it was n't a good idea because there were a lot of overexcited people arriving to support the front lines and fill the space gained during the charge of demonstrators , and CARDINAL cops were very quickly charged by CARDINAL people . The cops withdrew to a small street at right angles . The charge continued . The more they pulled back , the more we charged . We followed them into the street at right angles and caught up with them where the street runs into a small square with a church . The cops were still retreating under the hail of missiles . Quite a few demonstrators had iron bars or axe handles . There were more of us than them and they were trying to avoid contact . The cops entered a street off the square to re - form their lines . When they withdrew , they left CARDINAL small carabinieri jeeps QUANTITY behind them . The situation was violent and confused , things were happening quickly , so I 'll be careful what I say . The CARDINAL jeeps tried to reverse but , for some reason I do n't understand , the second one at least was n't able to . It then found itself cut off from the rest of the police and in direct contact with the demonstrators , who started to throw stones at it and to hit it with bars and wooden handles . The back window of the jeep was smashed , I do n't know how it happened but it was missing . I was QUANTITY from the jeep , slightly higher than it ( it was to my left ) because I was on the steps of the little church . That 's when I heard the first shot , quite loud , sharp and close by . I instinctively bent down , thinking that it was a gunshot . I looked straight ahead at the police ranks at the entrance to the side street to see what was happening , whether they had fired the shot and if they were charging . They were QUANTITY away , there was gas , I could n't see much . I think there was another shot . I turned round , still bent , and went back down CARDINAL or CARDINAL steps , went a few paces and crouched down for cover behind something or other . I raised myself up slightly . Straight in front of me , still QUANTITY away I 'd say , was the back of the carabinieri jeep with its back window smashed in . I could see some movement inside . I lowered myself again and almost immediately got up again slightly . I think ( but I ca n't be certain , it 's all a bit confused ) that I saw , through the smashed rear window , fairly clearly , CARDINAL cops wearing helmets , bent over or crouching , holding on to each other . I saw the outline of a hand , at chest height , and extending from it , a glinting black shape . I realised at once that it could only be a hand weapon and that it had been the source of the shots . I thought they had fired into the air in order to extricate themselves . The cops ( I think there were CARDINAL of them ) seemed nervous and had turned round slightly to look through the broken window for any demonstrators approaching . I could n't see what was happening on the ground . Then I looked behind me to see what was going on , whether the demonstrators were going forward or retreating . When I looked in front of me again , the carabinieri jeep had gone . I got up and moved forward . There were very few people in front of me . I had the feeling that it was much quieter for TIME . Then there were some shouts . I thought to myself that there was a problem and that something serious had happened . I saw a few people running and stopping CARDINAL QUANTITY to my left . I went over . There were CARDINAL people in a circle . I walked round them . I saw someone on the ground . A tear - gas grenade had rolled over to near the group of people . I kicked it back towards the cops , who were not moving and were still QUANTITY or so away ... His feet were close to mine . I remember his white t - shirt and his black balaclava , which was sticky and glistening with blood . I saw a pool of blood spreading out from his head . I noticed blood spurting out of his left eye . I realised it was a bullet that had done that and that the shots had n't been fired into the air . I took a few steps backwards holding my head . When I turned round I saw CARDINAL journalists with videos and cameras taking close - ups of the guy on the ground . The cops started to come over slowly . A group of CARDINAL or CARDINAL cops moved away from their ranks and , staying behind CARDINAL riot shields , they walked straight up to us , quite slowly and calmly it seemed to me . CARDINAL youths began to lift up the guy on the ground . I moved closer to help them but another demonstrator came up saying that the guy was seriously injured and should n't be moved . The CARDINAL youths put him down again . Actually , no one thought he was dead . The little group of CARDINAL or CARDINAL cops had moved closer . They were perhaps QUANTITY metres away from us . We moved back and the line of cops following the leading group at a distance began to charge , so we cleared off altogether . We did n't know what to do because we thought the guy on the ground was badly hurt , but not dead . We did n't check his heart or his pulse . If we 'd realised he was already dead , obviously we 'd never have left his body to the cops ; we would have taken it to PERSON and found an ambulance there ( I dread to think what effect that would have had on the CARDINAL of people there . ) Anyway , the cops charged and the square emptied , the last of the demonstrators caught up with the rest and said that a guy had been shot and might be dead . People started shouting angrily . The cops , after clearing the square , started off down the side street along which people had started to head back towards PERSON . When they saw the cops coming , the people hurled themselves at them , shouting \u201c GPE \u201d and forced them back on to the little square . Opposite me was the street where people were charging towards the square and , on my right , the street leading to PERSON . At the end of that street I noticed a light armoured vehicle which was heading up PERSON at speed , sweeping aside all obstacles . I hope there was no one in its way because the vehicle was driving straight through at full throttle . I bumped into one of the journalists who had been there when the demonstrator died . He spoke NORP and said to me and another NORP guy who was hanging around that we should n't get our hopes up , because the guy was dead . He said he was dashing off to send the pictures . I went back to PERSON by a side street , further up from the one where I had seen the armoured vehicle pass by . The news was starting to get round in the front lines of the demonstrators and people were attacking the cops frantically . I started to head back slowly in the opposite direction . The bad news was spreading through the demonstrators . Then I sped up and kept shouting out in several languages , while I walked quickly along , that someone had been killed by a bullet to the head . I told the news to the SO of the LCR . Then I walked back up the lines of demonstrators for a while announcing it ... The rioters in the front lines were very angry at the news , whereas most of the demonstrators were sickened and left . End of account . An anarchist somewhere in GPE , DATE . \u201d","According to the judge , the description by the anonymous demonstrator tallied completely with the content of the statements made in relation to the notification of the offence and with the conclusions of the investigation , which had been launched immediately and according to which \u201c at TIME , a group of demonstrators gathered in ORG at the junction with PERSON , erecting barricades using rubbish bins , supermarket trolleys and anything they could find in the vicinity . From behind this barricade , the group began throwing large numbers of stones and hard objects at a contingent of carabinieri who , having been stationed originally on ORG at the corner of ORG , had begun to move forward in a bid to stop the demonstrators , whose numbers had increased in the meantime following the arrival of other demonstrators coming from PERSON . \u201d","The judge pieced together the subsequent events as follows :","\u201c That was why CARDINAL Defender jeeps , CARDINAL of them driven by carabinieri officer PERSON and with officers PERSON and PERSON on board , had arrived as reinforcements for the contingent that was blocked .","Wholly unexpectedly , the demonstrators had launched an extremely violent charge which forced the contingent of carabinieri to withdraw into the relative safety of ORG . Consequently , the CARDINAL jeeps reversed as far as PERSON . Whereas CARDINAL of them managed from there to move off in the direction of PERSON , the other , driven by officer PERSON , in trying to turn round , ran into a rubbish bin with its front bumper and was unable to reverse immediately . In an instant the vehicle was surrounded by large numbers of demonstrators who formed a circle round it , attacking it and hitting it with anything that came to hand ( pipes , poles from road signs , planks , etc . ) while the demonstrators next to and further away from the vehicle continued their barrage of stones . The extensive footage filmed at the scene shows the violence of the attack on the contingent of carabinieri . In particular , the film made by PERSON clearly shows that the attack on the jeep hemmed in at the corner of PERSON was extremely violent , with demonstrators hurling themselves at the vehicle and smashing the windows with stones , iron bars and sticks . The film extracts and photographs taken during the events and assembled in the album of the mobile unit , which contains QUANTITY images indicating the precise sequence of events , show the foot patrol of carabinieri on the part of ORG which links ORG and PERSON , confronted by large numbers of demonstrators brandishing iron bars and sticks and throwing stones from behind a barricade erected at the junction with ORG . Behind the barrier , on photograph CARDINAL , we can see PERSON himself throwing a stone at the carabinieri .","Photographs CARDINAL to CARDINAL show the demonstrators advancing on the contingent of carabinieri followed by the jeep . The demonstrators are armed with iron bars and sticks and with numerous stones which they are throwing at the carabinieri , as shown clearly by photograph CARDINAL .","The next pictures show the withdrawal of the contingent , preceded by the jeeps travelling in reverse , \u201c followed \u201d by very large numbers of demonstrators ( including , on photograph CARDINAL , PERSON , running along clutching a beam ) , with the demonstrators already on ORG having been joined in the meantime by numerous others coming from ORG . The foot patrol manages to cross the square running , withdrawing in the direction of PERSON , still pursued by the demonstrators . The jeeps try to do a rapid U - turn but the demonstrators move over to them and launch an attack , as clearly shown by photographs CARDINAL and DATE . CARDINAL of the vehicles succeeds in completing the manoeuvre and leaving the square ; the other , trying to turn round , runs into a waste container at the front and is unable to extricate itself , in particular , as we shall see , because its engine stalls several times .","While some demonstrators continue to throw stones even at the foot patrol , which has moved away , and against the parting jeep , the vehicle driven by officer PERSON , with officers PERSON and PERSON now on board , is immediately encircled by demonstrators who hurl themselves at it , smashing the windows and hitting the occupants repeatedly with stones and iron bars through the windows . The ferocity with which the demonstrators attack the vehicle , as shown by the video and photographic material in the file , is striking : the vehicle is coming under a barrage of stones some of which , as we shall see , hit the carabinieri in the face and head . PERSON can be seen clearly , still armed with the long wooden beam , which he thrusts in through the right - side window , inflicting on PERSON , among other injuries , ' bruises and grazing in the area of the right shoulder blade ' which , according to the findings of the forensic expert report ordered by the public prosecutor 's office , are compatible with a blow struck in precisely that manner ( photographs DATE ) . Photograph CARDINAL shows the foot of one of the carabinieri in the jeep protruding through the shattered rear window , repelling a fire extinguisher thrown at the inside of the vehicle . This could be the object that caused ' severe bruising to the right leg with diffuse swelling throughout the leg ' reported by officer PERSON , who mentioned during questioning that he had also been hit in the leg by an ' extremely heavy metal object ' .","While objects continue to be thrown at the Defender jeep and its assailants are still crowding around the vehicle , CARDINAL of the carabinieri inside the vehicle takes a gun in his right hand ; this is clearly visible in photographs CARDINAL , DATE , DATE , DATE and DATE , which show a hand on the inside clutching a pistol at the level of the upper edge of the line formed on the photograph by the shape of the spare wheel on the back door ; while the attack is continuing , a young man bends down and picks up a fire extinguisher which he raises in the direction of the back window of the jeep as if to throw it .","CARDINAL shots are fired in quick succession from the inside of the vehicle . The young man with the fire extinguisher falls and his body rolls on the ground , coming to a stop against the left rear wheel of the vehicle ; the extinguisher has rolled next to the wheel , in front of the body .","TIME the Defender jeep manages to reverse , driving over the body of the young man with its left rear wheel and then touching it again as it moves forward and turns into ORG in the direction of PERSON , stopping almost immediately on the corner of a side street . The inanimate body of a young man with a balaclava on his head , later identified as PERSON , remains lying in the roadway . \u201d","With regard to ORG , the judge took the view that the evidence in the file excluded any criminal responsibility on his part , given that PERSON PERSON 's death had certainly been caused within TIME by the pistol shot and that the jeep 's driving over his body had caused only bruising . In addition , ORG had not been able to see PERSON , owing to the confused situation around the jeep . This ruled out any responsibility for homicide on the part of the driver .","As to GPE , the judge noted that the evidence in the file showed that the first bullet had struck and killed PERSON . It was an encased CARDINAL PERSON bullet , and therefore very powerful . In the judge 's opinion this fact , together with the low resistance of the body tissue through which the bullet had travelled , supported the hypothesis advanced by the prosecution authorities ' experts to the effect that the bullet had struck an object before hitting PERSON . The intermediate object could have been one of the numerous stones which had been thrown at the jeep by demonstrators . This appeared to be borne out by the video footage showing a stone disintegrating in the air at the same time that a shot was heard .","As to the initial trajectory of the bullet ( \u201c l'originaria direzione del colpo \u201d ) , the investigating judge noted that the ballistic expert examination had been unable to establish it . However , she took the view that , assuming that the jeep was QUANTITY high and that the stone visible on the film had been at a height of QUANTITY when the picture was taken , it made sense to consider that the shot had been fired upwards , in line with the conclusions of the experts appointed by the public prosecutor 's office .","The judge considered that the first possibility advanced by the public prosecutor DATE namely , that LOC had fired with the sole aim of intimidating the demonstrators \u2013 should be ruled out ; PERSON had sought to counter the attack . There was not sufficient evidence , either , to establish that GPE had been able to see PERSON at the moment of firing the shot and therefore had taken aim at him .","According to the judge , the most likely hypothesis was that ORG had fired the shot knowing that there was a risk that someone would be killed ; it was therefore a case of intentional homicide . However , CARDINAL elements which excluded criminal responsibility were present in the case . The first was the legitimate use of weapons , as set forth in LAW ( \u201c a ORG agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties shall not be liable to punishment where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority \u201d ) ; the second element was self - defence .","NORP The first issue to be determined was whether the use of a weapon had been necessary . The detailed reconstruction of the events suggested that GPE had been in a situation of extreme violence designed to disturb public order and targeting the carabinieri , whose physical integrity had been directly threatened . In the judge 's view , the danger had stemmed from the number of demonstrators and the overall methods of action ( \u201c modalit\u00e0 complessive dell'azione \u201d ) which made the acts of violence against GPE and the other CARDINAL carabinieri liable to endanger their physical integrity . In conclusion , the use of a firearm had been justified and the likelihood had been that its use would not cause serious harm , given that GPE had \u201c certainly fired upwards \u201d and that the bullet had struck Carlo Giuliani only because its trajectory had been altered in a way that could not have been foreseen . The relevant passage of the decision reads as follows :","\u201c The death of PERSON from a bullet fired by a carabiniere who , in the course of a demonstration , made use of his weapon , requires above all that we establish whether PERSON 's conduct was justified under LAW , which provides that ' a ORG agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties shall not be liable to punishment where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority ' . This is not the same as self - defence , but confers wider powers whereby the legitimacy of the response is not dependent on its proportionality to the threat , provided it does not exceed the bounds of ' necessity ' ; should this be the case , LAW , which makes unintentional excess punishable , is applicable , it being understood that even for ORG agents the use of a weapon is an extreme measure and that the least harmful option must therefore always be chosen . But where the use of a weapon is considered legitimate , provided the proportionality principle has been complied with , the ORG agent concerned can not be held responsible for the fact that something more serious occurs unintentionally , in so far as the foreseeability of such an event is intrinsically linked to the risk inherent in the use of a firearm issued to a ORG agent , and that risk could be eliminated only by his refraining from using the firearm , the use of which is authorised by law ( see case - law acknowledging the legitimate use by carabinieri of their weapons : as the officers had aimed at the tyres of a car in order to stop it escaping , they could not be held responsible under LAW for the unintentional killing of the vehicle 's occupants ORG , DATE , ORG ) . The use of weapons or any other form of physical force ( consisting therefore in physical violence against the person ) is not punishable :","\u2013 where the act is committed in the performance of an official duty and stems from the need for the perpetrator to repel an act of violence or thwart an attempt to resist official authority ;","\u2013 where it is specifically authorised by statute ;","\u2013 in a general sense , and hence without the need to rely on a specific statute , responsibility for the act is excluded where it stems from the need to repel violence or thwart an attempt to resist official authority , whether or not the violence or resistance amounts to CARDINAL of the offences contemplated in Articles CARDINAL et seq . of LAW .","However , Article CARDINAL provides for an exception to the provisions of Articles DATE and DATE , which applies also to ORG agents and provides justification for the ORG agent 's conduct even where he is not responding to the threat of an unjust offence against him . This specific exception also applies in the event of an obligation to perform a duty linked to his functions .","This provision , then , supplements Articles CARDINAL and CARDINAL of LAW by laying down autonomous rules governing the use of weapons and eliminating any uncertainty as to the conditions required by law in order for the ORG agent or individual not to be subject to punishment .","As already stated , the justification is broader than that of self - defence , and is more frequently applied in cases involving resistance than in cases of direct violence against the ORG agent ; however , there is no doubt that the distinction between the CARDINAL legal scenarios , precisely if the perpetrator of the offence is a ORG agent , can become difficult to define .","There can be no doubt , following the painstakingly conducted reconstruction of events , that PERSON , who was under orders to enforce public order , could quite legitimately make use of his weapon once the preconditions of the need to repel violence or thwart an attempt to resist official authority were met . Equally , there is no doubt that the situation with which PERSON found himself confronted was CARDINAL of extreme violence designed to disturb public order and oppose the lawenforcement officers themselves , whose safety was directly threatened .","In the instant case , it was not a question of a need to repel an act of violence on the basis of a generic concept encompassing failure to comply with authority , but of a need to ward off the real threat of an unjust act of aggression directly targeting PERSON and the persons who were with him .","It is certain that , owing to the number of demonstrators and the very nature of the violent action being taken against PERSON and the crew of ORG in which he was travelling , he faced the threat of serious physical injury , as clearly demonstrated by the injuries reported by PERSON and officer PERSON , since they were struck in the head and the face with large stones and elsewhere on their bodies by blows administered by planks of wood , beams and sticks which were thrust violently through the broken windows of the jeep .","The situation , then , was one of grave danger ; this is established beyond dispute not just by the video and photographic evidence in the file , but also by the statements of those who participated in the attack .","We need only recall the description of the moments in question by the anonymous anarchist and the words of some of those directly involved in attacking the jeep :","' ... I tried to escape down a side street and found myself , with CARDINAL people , in the bit of street leading to PERSON , where I hoped the situation would be calmer and I 'd be able to catch my breath ... almost as soon as we entered the side street we found ourselves facing CARDINAL or so carabinieri who , seeing me running towards them , took fright and fled after spraying us using small tear - gas canisters .","We kept running , the carabinieri in front and us behind , until we reached PERSON . That was where the CARDINAL carabinieri jeeps drove between us and them , stopping us and allowing the officers to run off .","Of the CARDINAL jeeps that arrived , CARDINAL quickly took up position with the cordon of police and carabinieri stationed in the part of ORG close to ORG ; the other , for some reason I could n't understand , drove , with its back window smashed in , into a rubbish bin which became wedged between the jeep and the wall .","At that point I was beside the jeep ; I could see several demonstrators crowding around the vehicle , needing to get TIME of fear and frustration out of their systems ...","I was watching what was happening around the jeep and realised that the carabiniere sitting inside was brandishing his pistol . I heard him shout \u201c NORP , bastards , I 'll kill the lot of you ! \u201d . I turned round and called out that he had a gun , trying to warn the others of the danger . At that moment PERSON , whom I did n't know at the time , was near me and looking down at the ground . As I ran towards the street where I wanted to go , I heard shots . I turned round and saw the body of a young man on the ground , the others who had been next to the vehicle stopped and moved away ... I think that TIME went by between the moment when I saw the pistol and when I heard the shots , during which the carabiniere kept shouting \u201c I 'll kill the lot of you ! \u201d . I would add that , before shooting at the man I later knew to be PERSON , the carabiniere had pointed the weapon at other people , in particular at the young man wearing a scarf and a black helmet who , realising like me that there was a gun , ran away out of the line of fire ' . Later on , during the same interview , he changed his story , saying that ' we were trying to get to a place where some people said there was no one ; in ORG , in fact , there were CARDINAL carabinieri , it was strange , they seemed to be lost ... It must have been QUANTITY to PERSON ; there were CARDINAL of them , CARDINAL of us . Almost as soon as they saw us they sprayed us with tear gas , firing in threes into the air ... At that moment they fled , we were QUANTITY away ... I did n't throw any stones or hit the jeep ... I fired a pebble from QUANTITY ... I might have kicked the jeep a few times , but to say that I picked up something , a piece of iron , and hit the jeep , I did n't do that ... I might have thrown a stone , I do n't know , in any case without intending to hurt anyone , more than anything I was afraid ... You know , if someone came at me pointing a gun , I could imagine that I 'd pick up the fire extinguisher to get the weapon off him , for instance , I can understand it , I can imagine ... I did n't go there with the intention of attacking a jeep ... I do n't think I stayed around the jeep for CARDINAL or TIME , just long enough to see this carabiniere on the side who then turned , yes , before this photo , he turned , I was looking in the direction of this young guy with the purple scarf who spoke LANGUAGE . While I was looking I took off my scarf and started calling out that we should run , and TIME after the photo was taken I heard the shots ... QUANTITY or so people ran with me , the others stayed around ... The jeep collided front - on with a rubbish bin , with a window already smashed in and this person stretched out inside with his arm holding up the shield against the side window \u2013 as we 're looking at the jeep , it 's the left window DATE and with the gun in his hand ... I 'm telling you that we saw the jeep and probably , I say probably because I ca n't remember what went through my head at that moment , I ca n't remember . DATE , I say ' I was running away ' , in my state of mind at that moment , probably DATE also because all the others were there \u2013 I thought there were far fewer people , I saw the enemy in the jeep , in the carabinieri jeep , and I may have thrown CARDINAL stones at it ... If I 'd wanted to hurt someone , I would have used the wooden beams I found , sticks , a sledgehammer , whatever , and I 'd have gone behind to hit the jeep where the carabiniere was at the window , like the guy who tried to throw a stone at his face , and I did n't do that ... If I 'd been planning , since I arrived in the street at TIME , to hurt someone , in this case one of the law - enforcement officers , I 'd have had a very good opportunity , I 'd have had a fantastic opportunity to hurt someone , and I did n't ... ' . ( Interview of Predonzani by the public prosecutor dated DATE ) .","In order to understand what really happened on PERSON , it is also useful to study the statements made by PERSON , who reported to the public prosecutor 's office of his own accord on DATE , and stated as follows :","' ... During the clashes , during the chaos , when they were charging us again , at CARDINAL point we were close to PERSON , anyway I was near FAC ... I was trying to do something , to retreat backwards or go forwards , but I could n't go anywhere : they were in front of us . Behind , there was a crowd of people throwing stones . At that point , something was happening , we were all there with a few people I do n't know , some of them had balaclavas , some were like me , others had headscarves , we saw the carabinieri retreating ... I saw some people throwing small stones at the carabinieri . The carabinieri were running back ; there was CARDINAL group moving forward and a group trying to surround them ; we pulled back , throwing stones ... The carabinieri were running back and people were throwing stones at them ... Well , they definitely got closer to us , we were running away ... At that moment the carabinieri left , we stopped and these CARDINAL jeeps arrived at top speed , I do n't know why . Anyway , they drove towards us , so obviously we ran off ; of the QUANTITY jeeps , one reversed from the church and managed to get away , the other did a U - turn and got stuck . We all threw ourselves on it , as you can see ; there , QUANTITY away , I saw this wooden beam , I picked it up and hit the jeep CARDINAL times , but not the window , because it was already smashed when I arrived . I hit the arriving jeep CARDINAL times , then I took the stick , the window was already broken and the carabiniere was there looking at me ... The one who did n't shoot , the one who saw me with the beam ... I did n't see anything , not even the gun , nothing , then , leaving the stick and turning round , I heard someone say ' Come on , we might be able to save him , come on ' and ' Murderers , murderers , they 've killed him ' . I hit the van CARDINAL times , I pulled back , there were CARDINAL carabinieri , the one who had n't fired who was looking at me , I swiped at him with the beam , I do n't even know if I got him , I might have hit him in the side . He ducked down to take cover , I stopped , I let go of the beam ; in the meantime , people carried on throwing stones . He fired and I was still there , when I threw the beam , I did n't run away ... When I threw myself against him , that 's when the guy fired ... It was they who attacked us with ORG , that 's different . The security forces were retreating on foot and we were running , we were practically nose to nose , they went back as far as possible , we stopped and the CARDINAL jeeps came towards us . Then they reversed and the jeep stopped , next we had the QUANTITY seconds of madness , with all the people who were there . I would n't have killed anyone , I 'm not a criminal ... With all the stones that were being thrown , I did n't hear the shots being fired ... Someone shouted ' Bastards , go away ! \u201d for TIME ... ' When asked how many people had been close to the jeep , he replied ' Lots ' .","The photographs in the file provide ample evidence of the violence described by the demonstrators themselves .","Photographs CARDINAL clearly show a fire extinguisher which , having been thrown at the smashed rear window of the jeep , hits PERSON 's right foot . The latter is clearly leaning over the spare wheel in an attempt to prevent the fire extinguisher from reaching the inside of the jeep . This is the same fire extinguisher which , TIME , Carlo Giuliani picks up off the ground , raising it above his head in order to throw it once more at the inside of the jeep , as someone , possibly even PERSON himself , had tried to do moments earlier , according to the statement made to the police on DATE by PERSON , manager of the QCARDINAL petrol station in ORG . PERSON stated that , shortly after TIME , she had observed from her home a young man wearing a dark balaclava , a white t - shirt and dark trousers , leaving the petrol station with a fire extinguisher whose contents he emptied , and then turning down ORG . She later recognised the portable extinguisher found next to the body of Carlo Giuliani as being the same one .","The violence of the attack by large numbers of demonstrators , the constant barrage of stones to which the vehicle was subjected and which caused physical harm to its passengers , as noted by the forensic medical reports , the aggression towards the passengers by the demonstrators , who continued to surround the vehicle at very DATE while thrusting hard objects inside , and the consequent persistence of a dangerous situation , undeniably amounted to a real and unjust threat to the personal integrity of PERSON and his colleagues , one which certainly called for a defensive reaction that was bound to culminate in his using the only means at his disposal : his weapon .","PERSON 's action was not an isolated act of aggression , as suggested by the family 's lawyers , but simply CARDINAL phase in a violent attack on the jeep by the large numbers of persons who had surrounded it and were trying to turn it over and , probably , to open the door , as stated by some of those present at the time of the events , at the risk of causing direct and more serious injuries to the vehicle 's occupants .","On the basis of the hypothesis , now proven , that the shot fired by PERSON was fired upwards , there can be no doubt that the latter 's conduct , which resulted in the death of PERSON , is covered by the provisions of LAW , as the carabiniere fired two shots directly upwards , after numerous unsuccessful warnings to end the violence , and one of the objects thrown deflected the bullet , as the result of a wholly unforeseeable event , causing the death of Carlo Giuliani .","All the evidence produced by the investigation , which was undoubtedly conducted thoroughly , therefore enables us to rule out with certainty the possibility that PERSON deliberately aimed his shots at FAC . However , even had that proved to be the case , there can be no doubt that the carabiniere , who was authorised to use firearms , with the risks inherent in the use of such instruments , found himself facing a genuine threat to his life or physical integrity and those of his colleagues , a threat which had already materialised in the form of actions threatening officers ' physical integrity and which were becoming more and more violent . Hence , he could legitimately have aimed his weapon at the attackers in order to prevent them from continuing their actions , and even sought to inflict limited injury ( for instance , by firing shots designed not to hit any vital organs ) , since it was not a case of passive resistance , nor had the assailant taken a hostage as a human shield \u2013 the only cases in which legal commentators and the case - law are united in excluding the legitimate use of a weapon directly against the aggressor .","On the basis of the above considerations we can therefore conclude that PERSON 's action was justified under LAW , particularly since the use of his weapon , which was absolutely essential , was adapted in order to present the minimum danger possible , given that the shots were certainly fired upwards and that it was only as the result of an unforeseeable change in trajectory that one of them struck Carlo Giuliani . \u201d","The judge next considered it necessary to determine whether ORG had acted in self - defence , given that this was a \u201c more stringent \u201d test for excluding responsibility .","In that connection that judge took the view that GPE had rightly perceived a threat to his physical integrity and that of his colleagues , and that the threat had persisted on account of the violence of the context . In the judge 's opinion , in assessing whether GPE 's response had been necessary and proportionate , PERSON situation and action ( lifting up an empty fire extinguisher ) could not be viewed in isolation . On the contrary , his action had to be considered as one phase in a violent attack on the jeep by a crowd of demonstrators . The attack had not been perpetrated by PERSON acting on his own , but by a crowd of assailants . Hence , PERSON 's response had to be viewed in relation to the latter in order to be assessed in its proper \u201c context \u201d .","In view of the number of assailants , the means used , the sustained nature of the violence , the injuries to the carabinieri in the jeep and the vehicle 's difficulty in leaving the square due to engine trouble , ORG 's response could be said to have been necessary . Furthermore , it had been appropriate given the level of violence .","In that connection the judge said that there was no doubt that , had ORG not taken out his weapon and fired CARDINAL shots , the attack would have continued . She further stated that if the fire extinguisher \u2013 which GPE had already kicked away once \u2013 had landed in the jeep , it would have caused serious injury to the occupants . The judge said that GPE had had CARDINAL means of countering the attack : his firearm . She took the view in that connection that GPE had made proportionate use of the weapon since , before shooting , he had shouted to the demonstrators to leave in an attempt to put a stop to their behaviour ; he had then fired upwards . The judge concluded that GPE had acted in self - defence . She added that the fact that GPE could see PERSON \u2013 as asserted by the prosecution authorities ' experts and by the applicants DATE and that he had taken the risk of killing someone did nothing to alter that conclusion , given that GPE 's action had been prompted by the need to defend the physical integrity of the jeep 's occupants and had been proportionate to the importance of what was being defended and the means available to him in order to defend it .","NORP The decision to discontinue the proceedings read as follows :","\u201c PERSON 's conduct has to be assessed also in the light of the persistence of the most restrictive conditions laid down by LAW in order to ascertain whether , with regard to the factual circumstances and the response to them , it is possible also to invoke the elements needed to satisfy the more stringent conditions for claiming self - defence . The factual circumstances and the context in which PERSON had to act have been described at length . There can be no doubt that in such a situation , comparable to the situation in the nearby PERSON which had led shortly beforehand to an armoured vehicle being set on fire after a Molotov cocktail was thrown inside it , PERSON was under the firm impression that there was a threat to his safety and that of his colleagues , a threat which had already materialised in the form of injuries ( as revealed by the documents in the file and the injuries reported by the jeep 's occupants ) , and that the danger continued despite his having issued repeated warnings while displaying his weapon . One has only to observe the numerous photographs showing the jeep still surrounded by demonstrators smashing in the windows with sticks and iron bars which they are thrusting inside the vehicle with the clear aim not just of damaging the vehicle by way of protest , but of hurting the crew , and throwing a huge number of stones at the vehicle , most of which reached the inside and hit the occupants , in order to gain some idea of the very real violence being unleashed and the subsequent injury which could have been caused to the vehicle 's occupants . It is not possible either to support the hypothesis , put forward by the injured party 's lawyers during the hearing , that PERSON 's head injuries could have been caused by his having knocked against the internal levers of the flashing light on top of the jeep rather than by the demonstrators ' actions . Quite apart from the objective fact that numerous bloodstained stones were found inside the jeep , the lever of the flashing light on the roof is covered in plastic and inserted in a ball - and - socket joint covered with a protective cap which is used to direct the light . The very fact that the lever is connected to a ball - and - socket joint means that the whole structure lacks the necessary rigidity to cause injuries to passengers ' heads , still less injuries with abrasions of the kind reported by PERSON . Coming back to the actual situation , there can be no doubt that the response was necessary in view of all the surrounding circumstances and in particular the number of assailants , the means they were using to attack individuals , the length of time for which the violence continued despite repeated warnings from the carabinieri , the injuries already sustained by the latter and , lastly , the difficulty of leaving the scene given that the jeep 's engine had stalled ( a move that was not required but was nevertheless attempted ) . It follows that even if we assess whether the defensive reaction was commensurate with the attack being perpetrated in terms of the substantial equivalence of the interests under threat , our conclusion can not but be positive , as the attack on the carabinieri jeep took the form of actions which were not only dangerous , but in themselves amounted to a violation of the rights and , in particular , the physical integrity of the vehicle 's occupants . Furthermore , it is beyond dispute , in the light of the factual circumstances , that had PERSON not drawn his weapon , threatening the demonstrators and then firing the CARDINAL shots , the attack would have continued and would have had further , undoubtedly more serious , consequences ; similarly , if the fire extinguisher which PERSON had already kicked away once had landed inside the jeep and hit the already injured carabinieri , it would have caused very serious injury , or worse . The presence of real danger and of an unjust attack was therefore borne out not just by the level of risk but by the fact that the attack was already in progress , and it must next be ascertained whether the requirement of proportionality was met , in terms also of the means available to the person under attack and the manner in which those means were deployed . As to whether the means of defence were proportionate to the attack , ORG has specified on a number of occasions that , for the purposes of determining whether an individual acted in self - defence , the decision as to proportionality , which must be taken by reference to the means available to the person under attack and the interests being protected , can not be qualitative and is by its nature relative . It is invariably a question of balancing the interests of the assailant and those of the person under attack who , in defending himself , is not in a position , in the specific situation , to make a precise assessment of the real danger and the effects of his response , with the result that the principle of proportionality is not infringed even if the harm to the assailant would be slightly in excess of the threatened harm to the person being attacked . ( In the case in question , with regard to the plea that was accepted , the accused had defended himself using a shotgun , the only instrument to hand at that moment , in order to counter the unexpected attack which the victim , armed with an iron bar QUANTITY in length , had previously unleashed on the accused 's father and then on the accused himself , inflicting various injuries . ORG , First Section , judgment no . CARDINAL of DATE Catane ) . ORG further found that , as regards the notion of self - defence , the expressions ' need to defend ' and ' provided that the defensive response is proportionate to the attack ' , contained in LAW , should be taken to mean that the response must be , in the circumstances , the only one possible in the sense that it could not be replaced by another , less damaging response equally capable of protecting the right under attack ( whether of the person in question or another person ) ( Court of Cassation , First Section , judgment no . DATE of DATE \u2013 GPE and PERSON ) . These principles , on which the established case - law and most legal commentators are in agreement , when applied to the factual circumstances surrounding the tragic death of PERSON , also enable us to conclude that the requirement of proportionality between the means of attack available to the assailants and the means available to the persons under attack was met . This conclusion is justified in view of the fact that the concept of proportionality must make reference not just to the competing interests at stake , as already mentioned , but also to the means used to defend them . PERSON had only one means of dealing with the violence against him and the attack on his physical integrity , not to say his life , and that of his colleagues : his weapon . In this respect also the factual findings suggest that in using that means of defence , he adapted it in order to cause the minimum harm to his assailants while attempting to deter them from taking action and make them desist . ORG has even stated that , ' for the purposes of determining whether the individual acted in self - defence , an assessment must be made of the proportionality between the defensive means available to the person under attack and the means actually deployed \u2013 where CARDINAL means is available but it can be used in a varying and calibrated manner \u2013 in order to compare the different deployment options available and the option actually chosen in the light of the method of attack or its foreseeable consequences . Such a situation is in every respect identical to a situation in which a comparison has to be made between a variety of means available and the means actually deployed . That is why the use of a firearm as a means of defence should be confined , where the attack is aimed at causing maximum harm to the person 's physical integrity , to displaying the weapon and one 's resolve to make use of it , while firing only into the air and on the ground , or in the direction of the assailant but taking care not to hit him or , at most , to hit him only in parts of the body not containing vital organs , and hence with the sole aim of deterring or wounding , but not of causing death ' or , to put it another way , ' with the sole aim of offering resistance or damaging the assailant 's physical integrity ' ( PERSON . DATE \u2013 ORG ) . Notwithstanding the fact that numerous photographs show the jeep surrounded by demonstrators , with PERSON 's arm sticking out and brandishing the weapon , and the fact that the statements in the file made by the person under investigation and also by the assailants themselves testify to the carabiniere 's repeated warnings to the demonstrators to disperse , the same photographic material clearly shows that these attempts to deter the assailants had no effect on the demonstrators , who continued to display extreme violence , eventually prompting PERSON to make use of his weapon , his only available means of countering the violence . What is more , PERSON 's conduct appears to have complied fully with the proportionality requirement as regards the manner in which he deployed the means at his disposal bearing in mind that , had he wished to be sure of injuring CARDINAL or other of his assailants , he could have pointed the weapon at the side windows outside which numerous demonstrators had gathered , whereas the complex technical findings show that the shots were certainly fired upwards ; only as the result of a tragic turn of events did the first shot cause the death of the young Mr PERSON . Consequently , whether PERSON had a partial view of PERSON , as the injured party 's lawyers maintain ( a hypothesis also entertained by the prosecution authorities ' experts ) , or whether , as seems more likely , he really did not see him and fired from the highest point which his position would allow , possibly accepting the risk that the shot might hit somebody , his action appears justified on grounds of self - defence , given that the intentional element of what occurred , whether it was planned or simply anticipated , was undoubtedly determined by the need to defend rights that were being unjustly violated , and that the defensive response remained within the bounds of proportionality , in terms of both the value of the interests at stake and the means available to protect them . \u201d","The requests for additional investigation made by counsel for the applicants were rejected by the judge in their entirety for the reasons set out below .","As to the request concerning the forensic medical report on the causes of PERSON death , seeking in particular to ascertain whether the latter had still been alive when the jeep drove over him and , accordingly , whether the investigative methods used had been scientifically sound :","\u201c It has already been stated that there is no evidence in the file capable of raising doubts as to whether the checks were carried out thoroughly and the investigative methods used by the experts were sound ; accordingly , the additional checks requested are unnecessary . It is further observed that the injured parties were offered the opportunity of participating in the autopsy on the young man 's body with their own experts , and hence of satisfying themselves that the investigative methods used were correct , but chose not to avail themselves of that possibility or to carry out their own examination of the young man 's remains . On the contrary , the body was cremated scarcely DATE after his death , thereby rendering any subsequent examination impossible , even assuming that it would have served any purpose ( which was not the case ) . \u201d","As to the request for police chief PERSON and carabinieri second lieutenant PERSON to be examined on the subject of the directives issued with a view to maintaining public order , and the lawfulness of the use of \u201c thigh holsters \u201d of the kind from which GPE had drawn the weapon that fired the fatal shot :","\u201c This examination too seems wholly inappropriate in terms of investigating the tragic events leading to the death of PERSON , given that the directives issued with a view to the maintenance of public order can not but be of a general nature and certainly do not encompass instructions governing unforeseeable situations involving direct attacks on officers of the kind to which officer PERSON was responding . The latter 's conduct , as stated on several occasions , was justified both on the basis of legitimate use of a weapon and the more stringent conditions for claiming selfdefence . As to the request to investigate the lawfulness of the use of \u201c thigh holsters \u201d and the detailed arrangements governing their use by carabinieri , it is not clear what this information would add to the investigation , as the manner in which PERSON was wearing the pistol is of no relevance given that , in the situation described , he could legitimately make use of the weapon irrespective of where he was wearing it or where he drew it from . \u201d","Regarding the request to trace the person who threw the stone that may have deflected the bullet , with a view to obtaining evidence from him or her concerning the trajectory of the stone :","\u201c This is impossible to verify in practice , even were it to be considered necessary , as it is unrealistic to imagine that a demonstrator would follow the trajectory of a stone after throwing it in order to make sure that it had reached its target ; the demonstrators were more concerned with finding new hard objects to throw at the law - enforcement officers .","In addition , even allowing for the possibility of such evidence being taken from an unknown demonstrator who , paradoxically and unintentionally , caused the death of a fellow demonstrator , it would be impossible to identify the person concerned and his or her statements would in any event be irrelevant in relation to the existing technical findings . \u201d","Regarding the request for further examination of the demonstrator PERSON concerning the conduct of the carabinieri inside the Defender jeep , the number of demonstrators around the vehicle and the person inside the jeep who actually seized the weapon , in the light of the statements made by Monai during an earlier interview ; also regarding further examination of E. Predonzani concerning the same circumstances , PERSON position before he was struck by the fatal bullet and the number of the jeep 's windows that were broken :","\u201c Any further examination would serve no purpose whatsoever , given the statements made by Monai and PERSON very shortly after the events \u2013 while those events were fresher in their minds than would be the case DATE when they reported of their own accord to the public prosecutor 's office in order to give evidence , to the best of their knowledge , concerning the events in which they had played a part and the tragic death of PERSON . These statements contain extremely precise details which have been confirmed by the video footage and photographs in the file , with the result that they provide important confirmation of the findings of the technical investigations . The various statements made by PERSON and , in particular , NORP , to the press and on television , on the other hand , have no legal value and it is not necessary in any case to shed further light on their content in view of the precise reconstruction conducted immediately after the events , which was confirmed by objective data such as photographs and film footage . It does not appear relevant either to establish how many of the jeep 's windows were broken , as it is beyond dispute that some of the right - side windows and the rear window were smashed . \u201d","Regarding the request for evidence to be taken from PERSON PERSON , supposedly to confirm that no Molotov cocktails were thrown on PERSON , contrary to what was suggested by PERSON , and to determine how far away PERSON was when he took the photograph on which the prosecution authorities ' experts based their findings in conducting the ballistics reconstruction :","\u201c This request does not appear capable , either , of making any contribution to the investigation , as the photograph taken by PERSON was just one of the elements used to determine PERSON 's position when he was struck by the bullet . The distance between the victim and the jeep was calculated taking account of the presumed position of the persons shown in the photographs in relation to fixed elements such as street furniture and road signs , on the basis of which specific measurements were taken ; this distance is confirmed by the statements of the persons who were next to PERSON .","The assertion made in the request for further investigation that PERSON suggested that Molotov cocktails had been thrown on PERSON is inaccurate . PERSON never maintained that Molotov cocktails had been thrown on PERSON \u2013 he simply stated that he had been afraid they might be . \u201d","With regard to the request for evidence to be heard from ORG as to when the hatchback window of the jeep had been smashed :","\u201c There is no doubt that the window was not broken by PERSON 's shot , as it is clear from the photos which show PERSON 's hand brandishing the pistol in order to intimidate the demonstrators that it had already been broken \u2013 probably by a stone being thrown \u2013 well before PERSON fired the shot that killed PERSON . The differing perception of CARDINAL of the occupants of another jeep did not influence the reconstruction of the events , which were established in an indisputable and wholly objective manner . \u201d","As to the request concerning access to the footage filmed on ORG by CARDINAL carabinieri whose helmets were equipped with video cameras , \u201c labelled and handed over to Colonel Leso \u201d :","\u201c The material in question is already in the file , as made clear by the communication from the Genoa carabinieri dated DATE which records the handing - over to the public prosecutor 's office of CARDINAL video cassettes , CARDINAL of which contain footage shot in various locations around the city \u2013 including ORG \u2013 using video cameras attached to the helmets of certain carabinieri ; the other CARDINAL video cassettes contain images taken from the army helicopter . \u201d","With regard to the request for carabiniere PERSON to be examined on the reasons why the bullet had lost its casing :","\u201c The request from the injured party 's lawyers is based on the unsolicited statements made by PERSON in which he said that ' cutting the tips of bullets in order to make them fragment more easily [ was ] common practice ' and that this automatically ruled out ' any intention to use firearms to intimidate . They [ were ] designed to kill on first impact ' .","While the existence of this practice as it emerges from PERSON 's statement is noted , it is not clear what purpose would be served if PERSON were to be examined by the public prosecutor 's office , given that we already have the findings of the ballistics expert reports based on objective examinations . Since the possibility raised by PERSON can only be considered as a reference to an improper practice which is not widespread , it is hard to see for what reason and on the basis of what objective information officer PERSON should be thought to have engaged in it , given , moreover , that the other bullets found in the magazine of his pistol were perfectly normal . \u201d","Regarding the request for forensic examination of the jeep in order to determine the cause of the damage to the top part of its upright , above the second ' i ' of the word ' NORP ' :","\u201c The inspection carried out to determine the origin of the damage caused to the hatchback , which was certainly caused by the large number of stones and hard objects thrown at the vehicle , has already been dealt with at length . There can be no doubt that the damage in question here came from the same source .","The additional examination requested would not therefore serve to dispel the doubts of counsel for the requesting party concerning the collision of the bullet with a stone , as it is not reasonable to assume that a single stone could have been thrown at the vehicle and dented it in several places , given that large numbers of objects were thrown at the scene and at the vehicles of the law - enforcement agencies and caused not only personal injury but also visible damage to the bodywork of the jeep . \u201d","As to the request concerning the panel 's examination of the spent cartridges seized with a view to checking which weapon they were fired from , seeking to extend the examination to include the weapons of all the lawenforcement officers present on Piazza Alimonda at the moment when PERSON was struck by the bullet :","\u201c This examination clearly serves no real purpose . It is beyond doubt , by PERSON 's own admission and according to the findings of the expert reports , that the shot which killed PERSON was indeed fired from PERSON 's weapon .","The investigations conducted at the time by the public prosecutor 's office in order to establish whether other law - enforcement officers had used their firearms in or around Piazza Alimonda on DATE produced a negative response , except as regards the shots fired in PERSON , at the junction with GPE , by the carabiniere PERSON in order to intimidate and disperse some demonstrators armed with bars , stones and pickaxes who had surrounded another armoured vehicle and were throwing stones at it . \u201d","As to the criticism by the applicants ' lawyers concerning the fact that numerous steps in the investigation had been delegated to the carabinieri and that a considerable amount of evidence had been taken in the presence of members of the carabinieri , the judge found as follows :","\u201c While such considerations may at first sight appear justified , they have no bearing on the events actually found to have occurred on PERSON , resulting in the tragic death of young PERSON , and whose dramatic unfolding has been reconstructed with the aid of the large volume of video footage and photographs in the file and the statements of the participants themselves . The wealth of these resources and details is such that no further attention can DATE or should \u2013 be devoted to other wholly irrelevant considerations . \u201d","NORP In the light of these findings , the investigating judge concluded that \u201c it [ had ] been proven that the carabiniere GPE [ had ] acted in circumstances justifying a decision not to prosecute and that there [ were ] no grounds for holding ORG responsible in relation to the death of Carlo Giuliani \u201d . The judge therefore issued a decision to discontinue the proceedings .","On DATE a parliamentary commission of inquiry heard evidence from Mr PERSON , an officer of the GPE police , who had taken part in the public - order operation in Genoa .","Mr PERSON stated that the carabinieri had been equipped with throat microphones , enabling them to communicate very rapidly with one another .","When asked to explain why the law - enforcement officers stationed quite near to the jeep ( QUANTITY away ) had not intervened , Mr PERSON replied that the men had been on duty since the morning and had been involved in several clashes during DATE . He added that he had not noticed at the time of the events that there was a group of carabinieri and police officers who could have intervened .","As to the function of the CARDINAL jeeps , Mr PERSON explained that they had brought fresh supplies at TIME and had left and then returned TIME to see if anyone had been injured .","PERSON also said that he had called an ambulance for Carlo Giuliani as no doctor had been present at the scene .","On DATE a group of parliamentarians called on the government to explain why law - enforcement officers being deployed on public - order operations were equipped with live ammunition rather than rubber bullets . The parliamentarians advocated the use of the latter , arguing that they had been used successfully on many occasions in other countries .","The government spokesman replied that the legislation made no provision for that option and that , moreover , it had not been proven that rubber bullets did not also entail very serious consequences for the victim . Finally , he said that the possibility of introducing non - lethal weapons was currently being examined .","On DATE ORG made public its judgment following the trial of CARDINAL demonstrators on a number of charges ( including criminal damage , theft , destroying property , looting and acts of violence against law - enforcement officers ) in relation to the events of DATE . ORG , Defence and Justice , and the government , had joined the proceedings as civil parties seeking damages . An appeal has been lodged against the judgment in question and the proceedings are pending .","This judgment helps shed light on the events of DATE ( see paragraphs CARDINAL above ) . In the course of CARDINAL hearings ORG had the opportunity , inter alia , to hear evidence from large numbers of witnesses and to examine the abundant audiovisual material in detail .","NORP In its conclusions the court held that the attack by carabinieri on the FAC bianche procession had been unlawful and arbitrary .","In reaching that conclusion , the court found it established that the FAC bianche demonstrators had not committed any significant acts of violence against the carabinieri who attacked them . The use of tear gas and the carabinieri advance towards PERSON had occurred without there being any real need to use force . The attack had been carried out against CARDINAL of persons who were doing no harm , and had not even been aimed at isolating and blocking off the few individuals engaged in throwing objects at the carabinieri , who were able to carry on undisturbed . Furthermore , no order to disperse had been given .","ORG went on to find that the subsequent charge had also been unlawful and arbitrary . It had not been preceded by a warning to disperse , nor had it been ordered by the officer authorised to do so . It had been unnecessary : the footage showed that the demonstrators had been standing motionless behind PERSON shields and that no objects were being thrown by the participants in the march , apart from CARDINAL objects fired from outside the crowd . In addition , the law - enforcement officers had had enough time ( CARDINAL ) to request instructions , but had not done so . Lastly , the march had been lawful and the demonstrators had not attacked the carabinieri .","The methods deployed had also been unlawful . The carabinieri had fired tear gas at chest height , a large number of demonstrators had sustained injuries caused by truncheons which did not conform to the regulations , and the armoured vehicles had knocked down the barricades and pursued members of the crowd on to the pavement with the clear intention of hurting them .","Accordingly , ORG considered that the unlawful and arbitrary nature of the carabinieri 's actions had justified the resistance shown by the demonstrators while tear gas was being used and during the charge on the procession . It had also justified the clashes which occurred in the side streets , FAC and PERSON , prior to TIME , that is , prior to the point at which the carabinieri had acted on the order to stop and to allow the march to proceed . In conclusion , the court held that the accused 's actions had been a \u201c necessary response \u201d to the arbitrary actions of the law - enforcement officers for the purposes of LAW no . FAC of DATE .","The court also forwarded the file to the public prosecutor 's office on the ground that the statements by Mr ORG and CARDINAL other lawenforcement officers to the effect that the attack had been necessary to counter the aggression shown by the demonstrators did not match the facts .","As to the demonstrators ' conduct after TIME , on the other hand , ORG considered that it had no longer been justified by the actions of the law - enforcement officers , as the unlawful and arbitrary attack had come to an end . Consequently , although the demonstrators may have still felt a sense of abuse and injustice , their conduct at that stage had no longer been defensive but had been driven by a desire for revenge , making it unjustified and punishable .","With specific reference to the events on PERSON , ORG considered that the attack ordered by police officer PERSON against the group of demonstrators had been neither unlawful nor arbitrary . As a result , the ensuing violent reaction by the demonstrators , consisting in pursuing the carabinieri and attacking the jeep , could not be regarded as a defensive response to arbitrary conduct on the part of the lawenforcement agencies .","As to the conduct of the carabinieri in the jeep , the persons concerned might well have imagined that they were being subjected to an attempted lynching . The fact that the demonstrators in question \u2013 unlike LOC groups DATE did not have Molotov cocktails and had therefore not been in a position to set the vehicle on fire was a factor that could be appreciated with TIME . ORG found that the occupants of the jeep could not be blamed for not having followed that line of reasoning and having panicked .","In ORG view , PERSON had been QUANTITY from the jeep when he was shot and killed . In his statements , ORG said that his gas mask had allowed him only a partial view . ORG said that he did not understand why the vehicle he had boarded had not taken him to hospital but had followed the contingent . He had only been able to see what was happening inside the vehicle . When the shot was fired , he had been lying down with his feet pointing towards the rear door of the vehicle . He had pulled PERSON down on top of him and could not see his own hand ; he was unable to say whether it had been inside or outside the jeep . In any event , he had fired upwards . ORG judgment mentions that the expert PERSON , who performed the autopsy on PERSON body , stated for his part that the trajectory of the fatal bullet indicated a direct shot ( \u201c la traiettoria rimandava ad uno sparo diretto \u201d ) . As to the metal fragment lodged in the victim 's body , PERSON stated it had been very difficult to find .","Article CARDINAL of LAW provides that \u201c a ORG agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties [ shall not be liable to punishment ] where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority . In any event , he or she shall not be liable where such action is taken to prevent criminal acts entailing massacre , shipwreck , flooding , aviation or railway disasters , intentional homicide , armed robbery and abduction ... The law provides for other cases in which the use of weapons or any other means of physical force is authorised . \u201d","Article CARDINAL of the Criminal Code states that \u201c [ p]ersons who commit an offence when forced to do so by the need to defend their rights or the rights of others against the actual danger of an unjust attack [ shall not be liable to punishment ] provided that the defensive response is proportionate to the attack . \u201d","Under LAW , in cases , inter alia , of selfdefence or legitimate use of weapons , where the person concerned has negligently ( colposamente ) overstepped the limits laid down by law or by the competent authority , or dictated by necessity , his or her conduct is punishable as unintentional conduct to the extent provided for by law .","Articles DATE of LAW ( Testo Unico ) of DATE govern public meetings and gatherings in public places . Where a meeting or gathering in a public place or which is open to the public is liable to endanger public order or safety , or where offences are committed , the meeting may be dissolved . Before such a meeting is dissolved , the participants are requested by the law - enforcement agencies to disperse . If the request is not complied with , the crowd is given CARDINAL formal warnings to disperse . If these are not complied with or can not be issued because of revolt or opposition , the police officers or carabinieri order the meeting or gathering to be broken up by force . The order is carried out by the police and the armed forces under the command of their respective senior officers . Refusal to comply with the order to disperse is punishable by a term of imprisonment of DATE and by a fine of DATE and CARDINAL ( ORG ) .","NORP In DATE ORG issued a directive to questori containing general provisions on the use of tear gas and truncheons ( sfollagente ) . The use of this equipment must be ordered clearly and expressly by the head of the service after consultation with the questore . The personnel must be informed .","The relevant Articles of the Code of Criminal Procedure ( \u201c the ORG \u201d ) provide :","\u201c Applications to join the proceedings as a civil party shall be made from the preliminary hearing stage ... \u201d","\u201c Injured parties shall exercise the rights and powers expressly afforded to them by law and may furthermore , at any stage of the proceedings , submit pleadings and , except in cassation proceedings , request the inclusion of evidence . \u201d","\u201c Injured parties may appoint a statutory representative for the exercise of the rights and powers afforded to them ... \u201d","\u201c Where the public prosecutor is conducting a technical investigation ... which calls for a specific competence , he or she may appoint and make use of the services of experts . The latter may not refuse to cooperate . \u201d","\u201c CARDINAL . Where the technical investigation ... concerns persons , objects or places which may be subject to change , the public prosecutor shall inform the person being investigated , the injured party and the lawyers without delay of the date , time and place ... and of the possibility of appointing experts .","...","Any lawyers or experts appointed shall have the right to attend the appointment of the experts , participate in the technical investigation and make observations . \u201d","\u201c CARDINAL . In the course of the preliminary investigation , the public prosecutor and the person being investigated [ persona sottoposta alle indagini ] may apply to the judge for the immediate production of evidence ...","NORP The public prosecutor and the person being investigated may request the judge to order an expert examination , where this could entail suspension ( of the trial ) for DATE if ordered during the trial . \u201d","\u201c CARDINAL . Injured parties may request the public prosecutor to apply for the immediate production of evidence [ incidente probatorio ] .","In the event that the public prosecutor fails to grant that request , he or she shall give reasons for the decision and notify the same to the injured party . \u201d","\u201c CARDINAL . Except in cases where an objection has been lodged against the request to discontinue the proceedings , if the judge grants the request for the proceedings to be discontinued he or she shall make an order to that effect and shall return the file to the public prosecutor . ...","NORP If the judge refuses the request to discontinue the proceedings , he or she shall fix the date of the private hearing and shall inform the public prosecutor , the person under investigation and the injured party accordingly . The procedure shall be conducted in accordance with LAW . The documents shall be deposited with the registry up to DATE of the hearing , and copies of them may be made by counsel .","The judge shall inform the public prosecutor at ORG of the hearing .","After the hearing , the judge may issue an order indicating to the public prosecutor the additional investigative measures he or she considers necessary and shall lay down a time - limit .","Where no additional investigative measures are required and the judge rejects the request to discontinue the proceedings , he or she shall request the public prosecutor to draw up the indictment within DATE ...","An appeal against the decision to discontinue the proceedings shall lie to ORG solely on grounds of nullity within the meaning of Article CARDINAL \u00a7 CARDINAL . \u201d","\u201c CARDINAL . When objecting to the request to discontinue the proceedings , the injured party shall request that the investigation be continued . The injured party shall indicate the purpose of further investigation and request the inclusion of evidence , failing which the objection shall be declared inadmissible .","Where the objection is declared inadmissible and the suspicions are unfounded , the judge shall issue an order discontinuing the proceedings and shall return the file to the public prosecutor .","NORP In cases not covered by the second paragraph , the judge shall make a decision in accordance with LAW , DATE , DATE and DATE . If there are several injured parties , notice shall be served only on the party that lodged the objection . \u201d","Article CARDINAL of the implementing provisions of the ORG pertaining to investigations into deaths that appear to have occurred as a result of a crime provides :","\u201c Where it is suspected that a person died as a result of a crime , the public prosecutor shall verify the cause of death and , should he or she consider it necessary , order an autopsy in accordance with the procedure laid down in LAW or by applying for the immediate production of evidence ...","... The burial may not take place without an order from the public prosecutor . \u201d","Article CARDINAL of Presidential Decree no . CARDINAL of DATE stipulates that cremation must be authorised by the judicial authority where death occurred suddenly or in suspicious circumstances .","The relevant parts of these principles , which were adopted on DATE by ORG on ORG and the Treatment of Offenders , provide as follows :","\u201c CARDINAL . Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials . In developing such rules and regulations , ORG and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review .","Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms . These should include the development of non - lethal incapacitating weapons for use in appropriate situations , with a view to increasingly restraining the application of means capable of causing death or injury to persons . For the same purpose , it should also be possible for law enforcement officials to be equipped with self - defensive equipment such as shields , helmets , bullet - proof vests and bullet - proof means of transportation , in order to decrease the need to use weapons of any kind .","...","Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life .","In the circumstances provided for under principle CARDINAL , law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms , with sufficient time for the warning to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident .","Rules and regulations on the use of firearms by law enforcement officials should include guidelines that :","( a ) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted ;","( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm ;","( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk ;","( d ) Regulate the control , storage and issuing of firearms , including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them ;","( e ) Provide for warnings to be given , if appropriate , when firearms are to be discharged ;","( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty .","...","Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures , have appropriate moral , psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training . Their continued fitness to perform these functions should be subject to periodic review .","Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force . Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use .","In the training of law enforcement officials , ORG and law enforcement agencies shall give special attention to issues of police ethics and human rights , especially in the investigative process , to alternatives to the use of force and firearms , including the peaceful settlement of conflicts , the understanding of crowd behaviour , and the methods of persuasion , negotiation and mediation , as well as to technical means , with a view to limiting the use of force and firearms . Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents .","... \u201d","The relevant part of the ORG report on its visit to GPE in DATE , published on DATE , states :","\u201c CARDINAL . As far back as DATE the ORG began a dialogue with the NORP authorities concerning the events that took place in GPE ( on DATE ) and in Genoa ( from DATE ) . The NORP authorities have continued to inform ORG taken in response to the allegations of ill - treatment made against the law - enforcement agencies . In that context the authorities furnished a list during the visit of the judicial and disciplinary proceedings in progress .","The ORG wishes to be kept regularly informed of the progress of the abovementioned proceedings . In addition , it wishes to receive detailed information on the measures taken by the NORP authorities to prevent the recurrence of similar episodes in the future ( relating , for instance , to the management of large - scale public - order operations , training of supervisory and operational personnel and monitoring and inspection systems ) .","In the report on its visit in DATE , the ORG recommended that measures be taken as regards the training of law - enforcement officers , with more particular reference to incorporating human rights principles in practical training \u2013 both initial and ongoing DATE concerning the management of high - risk situations such as the arrest and questioning of suspects . In their response , the NORP authorities simply gave general replies concerning the \u201c human rights \u201d component of the training provided to lawenforcement officers . The ORG wishes to receive more detailed DATE and updated DATE information on this subject ... \u201d ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2","38"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102218","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2010,"docname":"DUDEK v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Lohne . He was represented by PERSON , a firm of lawyers practising in GPE . ORG PERSON ( \u201c the Government \u201d ) were represented by their Deputy Agent , Mr H .- PERSON , GPE , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is a dentist and member of ORG ( ORG ) ( \u201c the ORG \u201d ) , the self - governing body of the contractual dentists practising in GPE . The ORG is responsible for , inter alia , entering into contracts with public health insurers on behalf of its members , checking costs brought to account by its members , distributing reimbursements for contractual work paid by public health insurers , and allocating the effects of austerity measures in the public health sector among its members in conformity with decisions of its council . Contractual dentists are free to treat other patients , in particular those who are insured by private health insurers . The ORG is not concerned with remuneration for such work .","The applicant was involved in numerous sets of proceedings against ORG affiliated with it before the social courts concerning aspects of his remuneration as a contractual dentist .","On DATE the President of ORG communicated the complaints regarding the length of the proceedings to the Government , together with those concerning CARDINAL other sets of domestic proceedings which had been decided or were then still pending before the same judicial formations .","On DATE the ORG deducted an amount of CARDINAL ( \u201c ORG \u201d ) from expenses for material and laboratory services brought to account by the applicant in regard to the orthodontic treatment of CARDINAL patient because the applicant had significantly exceeded the initial estimations by the public health insurer concerned in regard to those specific expenses .","On DATE and DATE the applicant made unsuccessful administrative complaints .","On DATE he brought an action against the ORG before ORG ( \u201c the ORG \u201d ) .","On DATE the applicant requested ORG to take additional evidence , namely that the initial calculations of public health insurers were not binding for the dentist concerned and that he had not exceeded the initial global estimations of expenses .","On DATE ORG held an oral hearing at the end of which it dismissed the action , refused leave to appeal and refused to hear additional evidence .","On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG ( \u201c ORG of Appeal \u201d ) . On DATE he lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG dismissed the complaint ; on DATE it dismissed the applicant \u2019s appeal for the right to be heard against this decision .","Also on DATE it dismissed as inadmissible the applicant \u2019s appeal against ORG refusal to hear additional evidence ; PERSON it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by ORG .","In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary and MONEY ( \u201c DEM \u201d ) (= EUR CARDINAL,CARDINAL.CARDINAL ) in regard to pecuniary damage .","On DATE EUR CARDINAL were deducted from the expenses for personnel and drugs brought to account by the applicant .","On DATE the applicant made an unsuccessful administrative complaint .","On DATE he brought an action against ORG at ORG before ORG .","On DATE ORG dismissed the action on the grounds that the deduction had been lawful because the applicant \u2019s expenses had been excessive in comparison to other dental practices .","On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG .","On DATE the applicant lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG dismissed the complaint .","In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary and DEM CARDINAL,CARDINAL.CARDINAL (= EUR CARDINAL,CARDINAL.CARDINAL ) in regard to pecuniary damage .","On DATE EUR CARDINAL were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs .","On DATE the applicant made an unsuccessful administrative complaint .","On DATE he brought an action against ORG at the ORG before ORG .","On DATE he requested ORG to take additional evidence , namely that he was entitled to the expenses requested for the practice overhead ; that the expenses brought to account by him were to be calculated using specific criteria ; and that the practice overhead of unamortised dental practices such as his was higher than the one of amortised practises .","On DATE ORG held an oral hearing at the end of which it dismissed the action , refused leave to appeal and refused to hear additional evidence .","On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG . On DATE he lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG dismissed the complaint ; on DATE it dismissed the applicant \u2019s appeal for the right to be heard against this decision .","Also on DATE it dismissed as inadmissible the applicant \u2019s appeal against ORG refusal to hear additional evidence ; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by ORG .","In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary and DEM CARDINAL,CARDINAL.CARDINAL (= EUR CARDINAL,CARDINAL.CARDINAL ) in regard to pecuniary damage .","On DATE EUR CARDINAL were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs .","On DATE the applicant made an unsuccessful administrative complaint .","On DATE he brought an action against ORG before ORG .","On DATE he requested that a scheduled oral hearing be adjourned until a decision on his legal aid request became final .","On DATE ORG held an oral hearing and dismissed the action .","On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG , which dismissed the complaint on DATE .","On DATE the applicant lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL\/CARDINAL ) .","In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary and DEM CARDINAL,CARDINAL.CARDINAL (= EUR CARDINAL,CARDINAL.CARDINAL ) in regard to pecuniary damage .","On DATE ORG ( \u201c the ORG \u201d ) at the ORG ordered the applicant to reimburse ORG CARDINAL for the defective implantation of a lower jaw prosthesis . On DATE the applicant made an unsuccessful administrative complaint . On DATE he brought an action against ORG before ORG , which granted the action on DATE .","In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary damage ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98152","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2010,"docname":"SETTAROV v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national of NORP origin who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in the same city . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was involved in a car accident .","According to a report drawn up by the police on DATE , the applicant had been responsible for the accident .","On an unspecified date the police transferred the case to ORG of PERSON for adjudication .","By a resolution of DATE , the court discontinued the proceedings against the applicant as time - barred . In the same resolution it found that the car accident had been caused by the applicant and that he had committed an offence provided for in LAW . The court \u2019s finding was based on the police report , the conclusions of an expert concerning the accident and the victim \u2019s statements . The court did not accept the applicant \u2019s version of the event , though it was confirmed by CARDINAL witnesses , who had been in the applicant \u2019s car on DATE .","Subsequently , the applicant asked the prosecutors to lodge a protest against the resolution of DATE . The prosecutors refused .","The relevant law is summarised in PERSON v. GPE ( ( dec . ) , no . CARDINAL , CARDINAL DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88736","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2008,"docname":"CASE OF FONYODI v. HUNGARY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in GPE .","In the context of complications suffered from plastic surgery , on CARDINAL DATE the applicant brought an action in compensation against a hospital .","After having held several hearings and obtained the opinion of an expert , on DATE the Pest Central District Court gave an interim judgment , accepting the applicant \u2019s entitlement to compensation . On appeal , on DATE ORG upheld this decision .","Subsequently the proceedings continued before ORG . In DATE the applicant extended her claims . After having held several hearings and obtained an expert opinion , on DATE ORG partly found for the applicant . On DATE ORG amended this decision .","On DATE ORG quashed these decisions and remitted the case to the first - instance court .","After several hearings in the resumed first - instance proceedings , on DATE ORG ordered the respondent to pay the applicant MONEY ( ORG ) in compensation plus accrued interest , together with a DATE allowance in arrears and pro futuro .","On DATE ORG upheld this judgment .","On DATE the first - instance judgment was rectified ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57934","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1995,"docname":"CASE OF NASRI v. FRANCE","importance":3,"conclusion":"Violation of Art. 8 (if deportation order executed);Not necessary to examine Art. 3;Lack of jurisdiction (injunction to State)","judges":"","text":["Mr PERSON , an NORP national , was born deaf and dumb in DATE , in GPE . He is the fourth of QUANTITY children , one of whom is deceased and CARDINAL of whom are NORP nationals . He came to GPE with his family in DATE . He is currently subject to a compulsory residence order pursuant to which he is required to live with his parents , at PERSON ( ORG ) .","ORG According to the information provided to the ORG , the applicant 's schooling may be summarised as follows .","ORG On their arrival in GPE in DATE PERSON and PERSON wanted to enrol their son in kindergarten , but he was refused admittance on account of his handicap . They then sought to have him admitted to ORG in GPE , a specialist establishment for the deaf and dumb . The institute could not however take him because of a lack of places and because his intellectual level was not regarded as sufficient . As a result Mr PERSON was not able to attend a school until DATE .","In DATE , after a social worker had intervened , he was admitted to the ORG audiom\u00e9trique m\u00e9dico - psychop\u00e9dagogique at GPE ( ORG ) ( a school specialising in hearing and speech difficulties ) . There he underwent therapy for his condition and received training adapted to his needs . On DATE he was expelled for violent behaviour .","ORG He then spent a further period with no schooling or training , which lasted until DATE , when he entered a training centre for the deaf and dumb at GPE ( PERSON ) . However , as his parents were unable to pay the boarding fees , he was returned to them after DATE .","On DATE he began training as a house painter . On DATE , following various incidents , he was obliged to quit .","ORG The applicant has indicated that he has no proficiency in deaf and dumb sign language , can neither read nor write and expresses himself in elementary fashion through signs that are intelligible only to his immediate circle of family and friends .","ORG As early as DATE the applicant came to the notice of the police as a result of a number of thefts . He appeared in court on several occasions .","ORG At DATE his police file recorded the following convictions :","( a ) on DATE , CARDINAL DATE and DATE he was sentenced by ORG to terms of imprisonment ranging from DATE for theft and attempted theft ;","( b ) on DATE he was sentenced to DATE imprisonment , CARDINAL of which were suspended , and DATE probation by ORG for gang rape ;","( c ) on DATE he was sentenced to DATE and DATE imprisonment by ORG for theft with violence ;","( d ) on DATE he was sentenced to DATE imprisonment by ORG for theft with violence ;","( e ) on DATE he was fined MONEY by ORG for assaulting a public official ;","( f ) on DATE he was sentenced to DATE imprisonment by ORG for theft with violence and receiving stolen goods .","In addition , on CARDINAL DATE he had been given a suspended sentence of DATE imprisonment for criminal damage and on CARDINAL DATE he was sentenced to DATE imprisonment for theft . On DATE he was convicted of theft with violence , but the ORG does not have any further details .","ORG On DATE the Minister of the Interior ordered the applicant 's deportation on the ground that his presence on NORP territory represented a threat to public order . The order , which was issued pursuant to sections CARDINAL and CARDINAL of the Order of DATE as amended ( see paragraph CARDINAL below ) , cited the applicant 's CARDINAL recent convictions , including that of CARDINAL DATE ( see paragraph CARDINAL above ) .","ORG On DATE ORG quashed the above - mentioned order . It found that the Minister had not been entitled to rely on ORG as amended by LAW , because the provisions of that LAW were stricter than those that had previously been in force . To rely on them in the applicant 's case , in respect of criminal convictions which all preceded that date , amounted to wrongfully modifying established situations .","ORG On DATE the ORG d'Etat overturned ORG judgment and dismissed Mr PERSON 's applications for the quashing of the order or for a stay of execution . It took the view that the deportation of an alien was not a sanction , but an administrative measure exclusively designed to prevent disorder and to preserve public safety . Accordingly , the provisions of the LAW of DATE could be applied as soon as they entered into force to aliens satisfying the conditions laid down therein , whatever the date of the convictions on which the measure was based .","ORG On DATE the applicant complied with a summons requiring him to report to the Hauts - de - Seine Prefecture at PERSON , where he was first taken into police custody and then placed in administrative detention by order of the Prefect , for DATE TIME , with a view to his deportation to GPE . As it proved impossible to deport him within that period , the PERSON tribunal de grande instance issued a compulsory residence order dated DATE requiring Mr PERSON to live with his parents .","ORG On DATE , relying on Articles CARDINAL , CARDINAL , and CARDINAL ( article CARDINAL , article CARDINAL , article CARDINAL) of the Convention , Mr PERSON lodged an application with ORG challenging , inter alia , the deportation order and the detention order .","On DATE his application was dismissed . According to ORG , the applicant 's presence on NORP territory represented a serious threat to public safety in view of his numerous previous convictions , the gravity of the offences committed and his persistent re - offending . The impugned decision had not therefore constituted an infringement of his right to a family life that was \" disproportionate to the aims pursued by the measure in question \" .","ORG The deportation order has so far not been enforced , in compliance with the request for a stay of execution made by the President of ORG ( see paragraph CARDINAL below ) .","On DATE the Minister of the ORG issued a compulsory residence order requiring Mr PERSON to live with his parents \" until such time as he is in a position to comply with the deportation order concerning him \" . That measure has since been renewed .","ORG In connection with the criminal proceedings brought against the applicant , several expert reports were ordered with a view to studying his personality , his behaviour and his social environment .","ORG A report of a psychiatric examination effected in DATE at the request of the investigating judge of the PERSON tribunal de grande instance presented the following conclusions :","\" The accused is an adolescent aged DATE ; he is deaf and dumb and has not yet acquired the skills needed to cope with his handicap ; he is not mentally retarded or mentally ill . He is , however , very easily influenced .","He is not insane within the meaning of LAW , but his emotional immaturity and intermittent personality disorders , combined with the fact that he is deaf and dumb , mean that his criminal responsibility is diminished to a considerable extent . He is by no means an insane person . He is not dangerous in a psychiatric sense . He can be restored to his family . He is unlikely to respond to a criminal penalty","... \"","ORG A medico - psychological report drawn up on DATE at the request of the investigating judge of the GPE tribunal de grande instance , stated as follows :","\" The subject 's personal history is very sketchy , for the very reason that he mimes more than he uses sign anguage . None the less , we learn that he was born in GPE DATE ; he is unable to provide us with his precise date of birth . He indicates that he came from GPE to GPE while still a very young child . Both parents are living . His father still works . His mother stays at home and is described as an invalid .","...","As regards his schooling , [ he ] indicates that he attended a special school for the deaf and dumb , where he learnt the trade of house painter . He further indicates that he is unable to write and has to ask another deaf and dumb person to assist him in that task . He does not know his parents ' address in GPE .","...","His intellectual level is very low . He is incapable of accurately identifying significant dates in his life . He indicates that he can neither write nor read . The interpreter for the deaf and dumb tells us that he has a very poor knowledge of sign language and that he uses mime more than an appropriate language .","...","He should receive socio - professional supervision and be helped to find employment genuinely compatible with his condition . \"","ORG A report of a medico - psychological examination submitted on CARDINAL DATE notes :","\" PERSON appears to us to have only very limited means of communication and of understanding of the world . In his family and in society he has been in a situation apart where he has built up a closed universe for himself . As his communication with the outside world remains rudimentary , it is often expressed in aggressive terms , especially since he is only able to identify with individuals who embody a certain aggressiveness towards a social environment that has not provided him with the means of communication he could expect . He thus appears to have taken refuge in the NORP community , the only one to confer any status on him , but one which places him in a situation where he manifests this status by means of criminal or aggressive acts . That is what makes any intervention or assistance difficult .","PERSON has the level of understanding and communication of a child . His perception of the world remains rudimentary ; his expression and comprehension are poor . The therapy he has received has been unable to equip him with proper and adequate means of communication and he has had to revert , in a way that is regressive , to his milieu of origin , with which he has to identify in order to have a status and an identity . In his milieu of origin , where he is integrated under the nickname which establishes his difference , ' the mute ' , it is inevitable that [ he ] should adopt attitudes of criminality and aggression , which in view of his condition are the only means he has of maintaining his status and identity . \"","ORG A psychiatric report of DATE concluded as follows :","\" We know very little of a personal history that has been marked by deaf - mutism and attempts at therapy which have achieved very moderate results ... [ He ] spent his childhood and his entire adolescence in GPE and has never returned to GPE , although he has kept his NORP nationality ... He lives with his parents , goes out , hangs around , uses the pocket money that his mother gives him ; they now live in publicly subsidised housing at PERSON .","He was sent to prison DATE for picking pockets ; while in prison he presented signs of acute anxiety that made it necessary for him to be transferred to a psychiatric ward , where he spent DATE .","...","[ His ] intelligence , which was no doubt normal at the outset , is now to be assessed in terms of intellectual efficiency , namely he uses a limited number of signs and his technique is rudimentary ; his comprehension is inadequate . He therefore has very little understanding of abstract concepts of time , place , etc . ... His scholastic accomplishments are limited : he can not read , or only titles , street names ; he writes his name but nothing else ; and he has not mastered the mechanism of addition involving the carrying - over of numbers . Our interpreter sees him as a young deaf and dumb boy aged DATE who has never had the benefit of specialist attention ... \"","ORG According to the findings of a psychiatric report of CARDINAL DATE :","\" He is deaf and dumb and has received practically no therapy . It is well known that such deficiencies , over and above the mere physical defect , affect in a much more general way the whole process of conceptualisation and in particular the acquisition of moral values ; it may therefore be concluded that he does not obey the same scales of values as a person who is normally integrated in society and who hears normally ; these psychological factors should be taken into account when assessing the offence that he has committed .","...","An examination of Mr PERSON does not disclose any major mental , psychological or behavioral anomalies amounting to insanity ; he is nevertheless a person who has been uprooted , who is badly integrated , desocialised and handicapped by his deaf - mutism with the implications that that has for his process of conceptualisation and his understanding of moral rules .","He was not insane within the meaning of LAW at the material time . From a strictly psychiatric point of view , the anomalies found are not such as to diminish his responsibility .","He is susceptible to the imposition of a criminal sanction . He does not need special treatment , but would benefit from specialised supervision for his deaf - mutism , which might improve the prognosis for his rehabilitation . Placing him in a psychiatric hospital does not appear desirable either in his interests or in those of the community . \"","ORG According to a medico - psychological report submitted on DATE :","\" The examination reveals nothing to justify the conclusion that [ Mr PERSON ] is not in a position to understand normally social rules and prohibitions , or that his capacity for self - control has been diminished by a clear pathological process .","It is , on the other hand , evident that the frustration that he feels , the difficulty of communicating , the impossibility of expressing his wishes by word combine to create the psychological conditions in which there is very low resistance to acting out his desires . \"","ORG A police report of CARDINAL DATE concerning the applicant states as follows :","\" His handicap , deaf - mutism , is real and does not prevent him from wandering the streets of ORG - la - Garenne and other villages at TIME and rom assiduously frequenting the bars where he drinks alcohol , which makes him aggressive or even violent .","...","He inspires terror in many inhabitants of ORG and also in his accomplices . He has been involved in numerous incidents of theft or violence . This violent and antisocial individual makes no effort whatsoever to be integrated in our society and takes advantage of his handicap and of the favourable provisions of the administrative and justice systems . He is a real danger to public order , especially since he appears to be the leader of the young delinquents of ORG owing to the fear he inspires . \"","Deportation of aliens is governed by the Order of DATE concerning the conditions of entry and residence of aliens in GPE . Section CARDINAL , as amended on DATE , provides :","\" PERSON may be ordered by an order of the Minister of the ORG if the alien 's presence on NORP territory constitutes a serious threat to public order . \"","An Act of DATE had deleted the word \" serious \" from the above provision , but on DATE the wording adopted in DATE was reinstated ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71202","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF ANTONENKOV AND OTHERS v. UKRAINE","importance":3,"conclusion":"Violation of Art. 6-1 (length of proceedings);No violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicants were born in DATE , DATE and DATE , respectively . All CARDINAL live in GPE .","On DATE criminal proceedings against the applicants were instituted .","On DATE was arrested on suspicion of fraud and theft . On DATE V.S. and , on DATE PERSON , were arrested on similar charges . The prosecution \u2019s case was that the applicants had fraudulently ( using false documents ) converted and subsequently sold an apartment belonging to PERSON","During the investigation the prosecution authorities obtained several economic expert opinions regarding the suspect transaction .","On DATE ORG approved the indictment and referred the case to ORG , requesting it to determine the territorial jurisdiction in the case . On DATE ORG ( hereafter \u201c ORG \u201d ) remitted the case to the Shevchenkovsky ORG of Kyiv ( hereafter \u201c the ORG \u201d ) . The applicants stood trial on charges of theft , fraud , and embezzlement of official documents ( GPE ) , fraud and forgery ( V.S. ) and fraud and theft ( PERSON ) .","On DATE ORG committed the applicants for trial .","On DATE the ORG released PERSON and PERSON on bail of ORG CARDINAL each ( approximately USD CARDINAL,CARDINAL at the material time ) and an undertaking not to abscond . On DATE was also released on bail of UAH CARDINAL ( MONEY ) and an undertaking not to abscond . On DATE the applicants\u2019 bail was raised to UAH CARDINAL ( approximately USD CARDINAL,CARDINAL ) each .","DATE and DATE ORG listed CARDINAL hearings ( DATE and DATE ) . QUANTITY hearings were adjourned mainly due to the failure of the victim , witnesses and the applicants\u2019 lawyers to appear in court . In the course of the proceedings on DATE the court issued a compulsory summons for the witness F.","On DATE ORG decided to remit the case for further inquiries on account of the insufficiency of the original investigation . The court stated inter alia , that the investigative authorities had failed to establish the whereabouts of CARDINAL of the key witnesses , PERSON , which made it impossible for the court to summon her to give evidence . The prosecution appealed against this decision . The decision was , apart from CARDINAL point , quashed by ORG in its ruling of DATE because the flaws in the investigation indicated in this decision could be remedied during the trial . However , ORG upheld the findings of ORG that the charges of aggravated embezzlement filed against GPE needed additional investigation .","The trial resumed on DATE . During the period DATE to DATE hearings were scheduled , of which CARDINAL were held . CARDINAL hearings were cancelled due to the victim \u2019s failure to appear , QUANTITY hearings were adjourned on account of the applicants\u2019 absence and on QUANTITY occasions the presiding judge was ill . In particular , the hearing scheduled for DATE was adjourned until CARDINAL DATE on account of GPE being on a mission . On DATE he lodged with the trial court a successful request for permission to go to GPE for medical treatment .","On DATE ORG remitted the case for further investigation , referring to the similar circumstances in its decision of DATE . The prosecution \u2019s appeal out of time was rejected by ORG on DATE . On DATE ORG lodged a supervisory protest ( an extraordinary appeal ) against the decision DATE . On DATE the Presidium of ORG granted the protest and remitted the case to the first instance court for further consideration .","ORG resumed the examination of the case on DATE . DATE and DATE the court listed CARDINAL hearings of which CARDINAL were adjourned due to the failure of the victim ( on CARDINAL occasions ) , the applicants ( on QUANTITY occasions ) and the prosecutor ( on CARDINAL occasion ) to appear . In the course of the proceedings on CARDINAL DATE and CARDINAL DATE the court ordered the compulsory summons of the victim .","On DATE ORG disjoined the proceedings concerning the charges of theft and embezzlement of documents ( A.D. and PERSON ) and remitted the case in this part for additional investigation .","On DATE ORG terminated proceedings concerning the charges of fraud ( all CARDINAL applicants ) , embezzlement of documents ( DATE ) and forgery ( V.S. ) as time - barred , lifted the bail condition and ordered the return of the bail money .","According to both parties\u2019 submissions , the criminal proceedings for ( presumably ) theft against DATE and PERSON are still pending .","The text of ORG CARDINAL , CARDINAL of the Code of Criminal Procedure of DATE ( general rules on the application of preventive measures ) is set out in Merit v. GPE , no . MONEY , DATE ( Relevant domestic law and practice ) .","Article CARDINAL of the Code ( application of bail ) is set out in PERSON v. GPE ( no . PERSON , DATE ) .","Article CARDINAL ( remittal of a case for additional investigation ) is set out in the judgment of CARDINAL DATE in the case of PERSON v. GPE ( see no . CARDINAL , \u00a7 DATE ) .","Article CARDINAL of the Code provides that an undertaking not to abscond consists in obtaining from the suspect or the accused an agreement not to leave the place of residence or temporary stay without the permission of an investigator ( or a trial judge ) . In the event of a breach of the written undertaking given by him , a stricter measure of restraint may be applied to the suspect or accused ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60752","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2002,"docname":"CASE OF CILIBERTI v. ITALY","importance":4,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant is the owner of an apartment in ORG , which he had let to ORG","In a writ served on the tenant on DATE , the applicant informed the tenant of his intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the GPE Magistrate .","By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .","On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter .","On DATE , the applicant served notice on the tenant requiring him to vacate the premises .","On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .","DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt of the bailiff proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .","On DATE , the tenant vacated the premises .","The relevant domestic law is described in the ORG \u2019s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58270","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF CEYLAN v. TURKEY","importance":1,"conclusion":"Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Luzius Wildhaber;Paul Mahoney","text":["The applicant , who was at the time the president of the petroleum workers\u2019 union ( Petrol - \u0130\u015f Sendikas\u0131 ) , wrote an article entitled \u201c The time has come for the workers to speak out DATE it will be too late \u201d ( \u201c S\u00f6z i\u015f\u00e7inin , yar\u0131n \u00e7ok ge\u00e7 olacakt\u0131r \u201d ) in the DATE issue of ORG ( \u201c GPE \u201d ) , a DATE newspaper published in GPE . The article read :","\u201c The steadily intensifying ORG terrorism in eastern and south - eastern GPE is nothing other than a perfect reflection of the imperialist - controlled policies being applied to the NORP people on the international plane .","In order to destroy the NORP movement in GPE , GPE imperialism first stirred up the NORP against PERSON \u2019s regime and then set that regime on them , having left it strong enough to crush their movement .","As a result , the whole world has been confronted with the heartbreaking sight of CARDINAL of NORP dying of hunger , exposure and epidemics , CARDINAL more wiped out by the NORP army and CARDINAL forced to leave their homes and their country .","After shedding crocodile tears over these scenes , which they themselves had created , the imperialists are now sitting back with their arms folded , for the whole world to see , as genocide in GPE continues to intensify .","The constant increase in the south - east in the numbers of persons executed without trial , of mass arrests and of persons disappearing while in detention , particularly since the passing of the new LAW , is a harbinger of difficult times ahead .","The recent murder in police custody of the president of the ORG branch of the ORG [ ORG ] , probably by anti - guerrilla forces , and the further killings ( CARDINAL according to the police , QUANTITY according to local people ) at his funeral ( the police opened fire on the crowd , injuring CARDINAL , and took CARDINAL people into custody ) are the latest examples of ORG terrorism .","Anyone who examines LAW closely can easily see that it is aimed at crushing not only the struggle of the NORP people , but the struggle of the whole working class and proletariat for subsistence , for freedom and for democracy .","Consequently , not only the NORP people but the whole of our proletariat must stand up against these laws and the \u2018 State terrorism\u2019 currently being practised .","From the trade - union point of view , too , the problem is too important and too vital to be dealt with simply in a few interviews and declarations .","The political authorities and the forces of monopolistic capital use a few vague concepts to enable every action to be presented as a terrorist offence and every organisation as a terrorist group . When they feel the time is right , they will not hesitate to turn that weapon against the working class .","As we have always said , the NORP working class and its economic and democratic organisations must bring not only their economic , but also their political and democratic demands to the fore and play an effective role in this struggle .","Despite all the hurdles erected by the law , we must unite in action with the democratic mass organisations , political parties and every individual or body with which it is possible to work ; we must oppose the bloody massacres and ORG terrorism , using all our powers of organisation and coordination .","If we fail to do so , the circles of monopolistic capital , which , under imperialist orders , aim to gag and suffocate the NORP people , will inevitably turn on the working class and proletariat .","In saying \u2018 DATE it will be too late\u2019 , we are calling on all our people and all the forces of democracy to take an active part in this struggle . \u201d","On DATE , the public prosecutor at ORG ( GPE PERSON ) indicted the applicant on charges of non - public incitement to hatred and hostility contrary to LAW ( see paragraphs LAW below ) .","In the proceedings in ORG , the applicant denied the charges . He submitted that the article was about human rights violations in the south - east of GPE and maintained that he had not intended to promote separatism or to sow discord or strife amongst the population . According to him , in a NORP society , any subject should be able to be discussed without restriction . He also argued that it was his responsibility as a trade - union leader to express his opinion on the problem of democracy in south - east GPE .","In a judgment of CARDINAL DATE , ORG found the applicant guilty of an offence under LAW and CARDINAL of LAW and sentenced him to DATE and CARDINAL months\u2019 imprisonment , plus a fine of MONEY .","The court held that in his article the applicant had alleged that the NORP people were being oppressed , massacred and silenced in GPE . In particular , the court interpreted parts of the fourth and thirteenth sentences of the article as meaning , respectively , that \u201c ... genocide [ was ] being carried out against the NORP in GPE ... \u201d and that an attempt was being made to \u201c ... gag and suffocate the NORP people \u201d .","It reached the conclusion that the applicant had incited the population to hatred and hostility by making distinctions based on ethnic or regional origin or social class .","NORP The applicant appealed to ORG , contesting , inter alia , ORG interpretation of his article and arguing that it should have obtained an expert opinion as to its meaning . He also submitted that he should have been given only a suspended sentence .","On DATE ORG dismissed the appeal , upholding ORG assessment of the evidence and its reasons for rejecting the applicant \u2019s defence .","The applicant served his sentence in full . As a consequence of his conviction , he also lost his office as president of the petrol workers\u2019 union as well as certain political and civil rights ( see paragraph CARDINAL below ) .","Article CARDINAL of the Criminal Code provides :","\u201c Non - public incitement to commit an offence","A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months\u2019 and CARDINAL years\u2019 imprisonment and a heavy fine of from CARDINAL MONEY .","A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years\u2019 imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .","The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . \u201d","Article CARDINAL \u00a7 CARDINAL of the Criminal Code provides :","\u201c Public incitement to commit an offence","...","Where incitement to commit an offence is done by means of mass communication , of whatever type \u2013 whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled \u2026 \u201d","The conviction of a person pursuant to LAW entails further consequences , particularly with regard to the exercise of certain activities governed by special legislation . For example , persons convicted of an offence under that Article may not found associations ( Law no . CARDINAL , section CARDINAL(CARDINAL)(b ) ) or trade unions , nor may they be members of the executive committee of a trade union ( Law no . CARDINAL , section CARDINAL ) . They are also forbidden to found or join political parties ( PERSON no . PERSON , section CARDINAL ) ) and may not stand for election to ORG ( Law no . CARDINAL , section CARDINAL(fCARDINAL ) ) .","The Government supplied copies of CARDINAL decisions given by the prosecutor attached to ORG withdrawing charges . CARDINAL of the cases concerned a person suspected of non - public incitement , contrary to LAW , to hatred or hostility based in particular on a distinction between religions . The other CARDINAL concerned persons suspected of making separatist propaganda aimed at undermining the indivisible unity of the ORG contrary to section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) . In CARDINAL of those cases , in which the offences had been committed by means of publications , CARDINAL of the reasons given for the prosecutor \u2019s decision was that some of the elements of the offence could not be made out .","Furthermore , the Government submitted a number of ORG judgments as examples of cases in which defendants accused of the offences referred to above had been found not guilty . The judgments in question are : for DATE , no . CARDINAL of CARDINAL DATE and no . CARDINAL of DATE ; for DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of CARDINAL October , no . CARDINAL of DATE and no . CARDINAL of DATE ; and for DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE . The judgments acquitting authors of works dealing with the NORP problem were based , inter alia , on the absence of \u201c propaganda \u201d , CARDINAL element of the offence ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77659","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF KUSYK v. POLAND","importance":3,"conclusion":"No violation of Art. 5-3","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","The applicant was arrested by the police on DATE . On DATE ORG ( S\u0105d Rejonowy ) ordered his detention on remand for DATE on suspicion of armed robbery . It took into account the nature of the offence and the strong likelihood that the applicant would be given a heavy sentence . In addition , it had regard to the fact that the applicant had been previously convicted of a violent crime .","On DATE ORG ( PERSON ) prolonged the applicant \u2019s detention until DATE , having regard to the strong suspicion that he had committed the offence in question . It also found that the applicant \u2019s detention was justified , given the gravity of the charge and the severity of the likely sentence . The court further held that the investigation could not be concluded within DATE because the applicant had to undergo a psychiatric examination .","The applicant underwent a psychiatric examination DATE and DATE . On DATE a psychologist and CARDINAL psychiatrists submitted their report . According to their findings , the applicant was able to understand his acts at the time of the commission of the alleged offence and could participate in the trial .","On DATE the applicant was additionally charged with theft .","On DATE ORG ) terminated the investigation . On DATE the prosecution filed a bill of indictment with ORG . The applicant and his brother were charged with armed robbery and inflicting minor bodily harm . The applicant was additionally charged with theft . The bill of indictment specified that the applicant was subject to the rules on recidivism as in DATE he had been convicted of assault with intent to rob and inflicting grievous bodily harm and had been sentenced to CARDINAL years\u2019 imprisonment . In addition , in DATE the applicant had been convicted of manslaughter and sentenced to CARDINAL years\u2019 imprisonment .","On DATE ORG ordered that the applicant be kept in custody until DATE . It observed that the evidence obtained in the proceedings indicated that there was a strong likelihood that the offences in question had been committed by the applicant . It further considered that continuation of his detention was necessary in order to secure the proper conduct of the proceedings , given the nature of the offence and the severity of the likely sentence in respect of the charge of armed robbery .","The applicant \u2019s detention was subsequently prolonged by ORG on DATE ( until DATE ) and on DATE ( until DATE ) . The court relied on the same grounds as invoked in its earlier decision .","ORG held CARDINAL hearings ( DATE , CARDINAL May , DATE , DATE , DATE , DATE and DATE ) . On DATE it gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years\u2019 imprisonment . The applicant and the prosecution appealed against ORG judgment .","On DATE ORG ordered that the applicant be kept in custody until DATE . On DATE ORG ( S\u0105d Apelacyjny ) prolonged his detention until DATE .","On DATE ORG quashed the first - instance judgment and ordered a retrial .","It appears that in the course of the retrial ORG ordered that the applicant be examined by a psychiatrist and psychologist . According to their report , at the relevant time the applicant was not suffering from diminished responsibility for his acts , although he was a mentally handicapped person with an unsound personality .","ORG several times prolonged the applicant \u2019s detention . The relevant decisions were given on DATE ( prolonging his detention until DATE ) , on DATE ( ordering his continued detention until DATE ) , on DATE ( extending his detention until DATE ) , on DATE ( prolonging that period until DATE ) and on DATE ( ordering his continued detention until DATE ) . In all those decisions , ORG relied on the reasonable suspicion that the offences in question had been committed by the applicant , having regard to the evidence obtained in the proceedings . It further found that his continued detention was necessary in order to secure the proper conduct of the proceedings , given the nature of the charges and the severity of the sentence to which the applicant was liable . In the latter respect , the court found that the offence of armed robbery with which the applicant had been charged constituted a serious social danger and that the applicant was a recidivist offender .","The applicant \u2019s numerous requests for release and appeals against prolongation of his detention were to no avail . The courts , having regard to the relevant medical and court ORG reports , did not find any reason which would justify the applicant \u2019s release on the grounds specified in Article CARDINAL \u00a7 CARDINAL of LAW .","ORG held CARDINAL hearings ( DATE and DATE , and DATE , DATE , DATE , CARDINAL DATE and DATE ) . It gave judgment on DATE . The applicant was convicted of armed robbery and theft and sentenced to DATE imprisonment . He appealed against that judgment .","On DATE ORG gave judgment . It acquitted the applicant of theft and upheld the remainder of ORG judgment . The applicant lodged a cassation appeal against ORG judgment . On DATE ORG ( S\u0105d Najwy\u017cszy ) dismissed his cassation appeal as being manifestly ill - founded .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . The other measures are bail ( por\u0119czenie maj\u0105tkowe ) , police supervision ( doz\u00f3r policji ) , guarantee by a responsible person ( por\u0119czenie osoby godnej zaufania ) , guarantee by a social entity ( por\u0119czenie spo\u0142eczne ) , temporary ban on engaging in a given activity ( zawieszenie oskar\u017conego w okre\u015blonej dzia\u0142alno\u015bci ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .","Article CARDINAL \u00a7 CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :","\u201c CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused \u2019s committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . \u201d","Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :","\u201c 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 his identity can not be established or when he has no permanent abode [ in GPE ] ;","( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;","NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years\u2019 imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . \u201d","The Code sets out the conditions governing the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :","\u201c CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . \u201d","Article CARDINAL , in its relevant part , reads :","\u201c CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d","The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court \u2013 within those time - limits \u2013 must in each detention decision determine the exact time for which detention shall continue .","Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :","\u201c CARDINAL . When imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .","an application made by the [ relevant ] prosecutor \u2013 prolong detention for a period [ or periods ] which as a whole may not exceed DATE .","The whole period of detention on remand until DATE first conviction at first instance may not exceed DATE .","Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . \u201d","On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested in the court of appeal within whose jurisdiction the offence in question has been committed . In addition , new paragraph CARDINAL was added . It provides :","\u201c A decision of ORG taken pursuant to paragraph CARDINAL may be appealed against to ORG sitting in a panel of CARDINAL judges . \u201d","LAW and CARDINAL of LAW of DATE included in Chapter VII of the Criminal Code of CARDINAL provide for special rules relating to the sentencing of habitual offenders . The finding that a person is subject to the rules on recidivism within the meaning of LAW , inevitably results in the sentence of imprisonment to which the accused was liable being increased ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69779","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2005,"docname":"CASE OF MIHAILOV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Christos Rozakis","text":["In a decision of CARDINAL DATE ORG ( \u201c the ORG \u201d \u2013 see paragraph CARDINAL below ) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he qualified for second - degree disability . From that point on the applicant was undergoing DATE medical examinations at the ORG , and each time his diagnosis and degree of disability were confirmed .","Apparently due to a deterioration of the applicant 's health , in a decision of CARDINAL DATE the competent ORG revised his disability to firstdegree , without the need for another person 's assistance . Later , on CARDINAL DATE , another ORG decided that the applicant qualified for firstdegree disability in need of another person 's assistance .","The chief expert at ORG ( \u201c the CLEMC \u201d \u2013 see paragraph CARDINAL below ) at ORG appealed against the latter decision . On DATE the ORG overturned the ORG 's decisions of DATE and CARDINAL DATE and the applicant 's disability status was set back to seconddegree .","The applicant lodged an appeal against this decision with ORG .","On DATE a threemember panel of the court declared the applicant 's appeal inadmissible . It held that the appealed decision was not subject to judicial review , in accordance with section CARDINAL(c ) of LAW of DATE , section CARDINALa of Regulation no . CARDINAL of ORG , and section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .","The applicant appealed to a fivemember panel of ORG , arguing that the refusal of the CARDINAL - member panel to examine the appeal was contrary to LAW . He submitted that the CLEMC 's determination directly affected the amount of disability pension that was allotted to him .","The fivemember panel upheld the CARDINAL - member panel 's decision in a final decision of DATE , holding that under section CARDINAL ) of LAW of DATE the CLEMC 's decisions were final and not subject to judicial review .","NORP Under NORP law , as it stood at the relevant time , there existed QUANTITY of disability , differentiated according to the character and the course of the disabling illness , the functional status of the ailing organ and of the organism as a whole , and the requirements of the disabled 's profession ( section CARDINAL(CARDINAL ) of Regulation no . CARDINAL on the expert assessment of longlasting incapacity to work , issued by ORG in DATE and superseded in DATE by a newer statutory instrument ) . The first degree of disability was reserved for persons who had , due to their state of health , lost all ability for work , or persons with durable , incurable , or worsening ailments set forth in a special list ( section CARDINAL of the Regulation ) ; the second one covered persons who had lost the ability to perform theirs or any other work , but who could be accommodated for work under conditions suitable for their health , or persons with durable , incurable , or worsening ailments set forth in the above list ( section CARDINAL of the Regulation ) ; and the third one covered persons who , as a result of their state of health , had to change their profession with one requiring lower qualifications , or who had to change their conditions of work within the same profession ( section CARDINAL of the Regulation ) . If a person was disabled on account of several illnesses , the decision determining his or her disability status had to set forth his or her degree of disability pursuant to each of the separate illnesses , as well as the overall degree of disability ( section CARDINAL of the Regulation ) .","Persons with a firstdegree disability were divided in CARDINAL subcategories : those who needed another person 's assistance , and those who did not . The determination who was in need of such assistance was made on the basis of the findings about that person 's need of everyday care , help or supervision ( section CARDINAL of the Regulation ) .","Section CARDINAL of LAW of DATE , as in force at the material time , provided that the amount of the professional disability pension was to be set pursuant to the degree of disability : those under the first degree were entitled to PERCENT of their average earnings , those under the second degree to PERCENT , and those under the third PERCENT . The amount of the general disability pension was to be likewise set pursuant to the degree of disability : PERCENT , PERCENT and PERCENT respectively ( section CARDINAL of LAW of DATE ) .","Persons with a firstdegree disability in need of another person 's assistance were entitled , in addition to the pension they received , to a further PERCENT of the amount of the social pension ( section CARDINAL(CARDINAL ) of LAW of DATE ) .","The LEMCs and the CLEMC were established pursuant to the abovementioned Regulation no . CARDINAL under the authority of ORG ( sections CARDINAL and CARDINAL of the Regulation ) . The LEMCs were responsible for , inter alia , determining the degree of a person 's disability ( section CARDINAL of the Regulation ) . The CLEMC heard appeals against decisions of the LEMCs ( section CARDINAL of the Regulation ) .","The presidents and the members of the commissions , who were exclusively medical professionals ( section CARDINALa(CARDINAL ) of the Regulation ) , were remunerated under employment contracts they entered into with the local mayors , the Minister of Health , or the medical directors of the local hospitals ( section ORG ) and ( CARDINAL ) of the Regulation ) .","There were no written rules regulating the procedure before the commissions . Regulation no . CARDINAL provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents , making no provision for witness testimony or other evidence . No hearings were held .","By LAW , all \u201c administrative acts \u201d are subject to judicial review , unless otherwise provided by statute . LAW ( \u201c the ORG \u201d ) defines \u201c individual administrative acts \u201d as \u201c acts issued [ by public authorities ] , which create rights or obligations for , or affect rights or legitimate interests of , individuals or legal entities , as well as the refusals to issue such acts \u201d . By sections CARDINAL of the ORG , all \u201c administrative acts \u201d , save those relating to the security of the country or specifically enumerated by statute , are subject to judicial review .","Section CARDINAL(c ) of LAW of DATE provided that the CLEMC 's decisions pursuant to appeals by the disabled or the administration were final . So did section CARDINALa of the abovementioned Regulation no . CARDINAL and section CARDINAL(CARDINAL ) of LAW .","NORP In contrast to the previous practice , in a series of decisions and judgments starting with a reported decision of CARDINAL DATE in which it quashed a decision of ORG declaring an appeal against the decision of a special medical commission inadmissible , ORG started allowing judicial appeals against the decisions of special medical commissions . It reasoned that the general rule under LAW was that administrative acts were subject to judicial review unless otherwise provided by statute . The commissions ' decisions affected the individuals ' rights and were thus administrative acts within the meaning of LAW and section QUANTITY of the ORG . Since the exclusion of judicial review of the commissions ' decisions was set out in statutory instruments , it was invalid and their decisions were appealable before a court . In a number of those judgments and decisions the court also relied on LAW and , in particular , its access - to - a - court requirement ( \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , ORG , ORG ; \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL \u0433. , PERSON , ORG ; \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , ORG , ORG ; \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433 , ORG , ORG ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 ) .","At present section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE provides that the decisions of ORG ( the successor body of the CLEMC ) are reviewable by ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71530","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2005,"docname":"METZGER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Mark Villiger","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by Mr H .- PERSON , a lawyer practising in GPE .","The applicant , an employed bookseller , is a member of ORG ( GPE ) sitting for ORG .","On DATE she attended as a listener a session of ORG ( PERSON ) , which arranged a public discussion and subsequent vote on the question whether an old people \u2019s home in a residential area of the town should be converted into a foster home for mentally ill persons . A ORG initiative with CARDINAL members had been formed by the neighbours of that home and further sympathizers to oppose this project . The members of the initiative argued , inter alia , that neighbours , notably children , would be endangered by the prospective patients , and expressed fear that their real property might lose part of its value . During the public discussion in ORG , a member of the ORG initiative , Ms B. , repeated these arguments . The applicant herself supported the conversion project .","Following the session , the applicant was accused in CARDINAL letters to the editor published in a regional newspaper , ORG , of having commented Ms B. \u2019s statement by saying in a rather low voice to her neighbour : \u201c But these are NORP , these are NORP methods . \u201d Furthermore , she was accused of having said to a group of people belonging to the ORG initiative , who were standing close to the town hall after the session : \u201c You NORP . \u201d","The applicant subsequently instituted civil proceedings in ORG both against the CARDINAL signatories of the letters to the editor and against the editor himself , in the course of which she confirmed in CARDINAL affidavits that she had never made such statements . On CARDINAL DATE ORG granted the applicant an interim injunction prohibiting the defendants to impart the allegation that the applicant had made the impugned statements . On DATE ORG quashed the judgment of ORG concerning the editor and dismissed the applicant \u2019s motion for an interim injunction .","Furthermore , on DATE the ORG conducted a hearing in proceedings brought by the applicant \u2019s lawyer against ORG for damages caused by the press coverage concerning the applicant \u2019s alleged statements . In that hearing , the applicant , who testified as a witness , again denied having made the impugned remarks . ORG subsequently partly allowed the action .","On DATE ORG refused to open criminal main proceedings against the applicant for libel . Having regard to the evidence before it , it argued that it was not sufficiently likely that the applicant would be convicted .","Following the public prosecutor \u2019s appeal , ORG quashed the judgment of ORG on DATE and opened the main proceedings before ORG . On DATE it allowed the motion of CARDINAL persons to join the proceedings as associated prosecutors ( Nebenkl\u00e4ger ) .","On DATE ORG acquitted the applicant of CARDINAL counts of libel to the detriment of CARDINAL persons , of having made CARDINAL wrong affidavits ( falsche ORG an Eides Statt ) and of having given false evidence in court ( falsche uneidliche Aussage ) . After having heard CARDINAL witnesses , the court came to the conclusion that the applicant had not made the impugned statements . ORG and CARDINAL associated prosecutors appealed against the judgment .","On DATE ORG , after having heard most of the witnesses called already by ORG , quashed the judgment of that court . It convicted the applicant of CARDINAL counts of libel , of having made CARDINAL wrong affidavits and of having given false evidence in court and sentenced her to a fine of CARDINAL ORG ( CARDINAL DATE rates of ORG CARDINAL ) . She was further ordered to bear the costs of the proceedings . These included the expenses of some DEM CARDINAL incurred by the associated prosecutors who had appealed against ORG judgment .","Having assessed the evidence before it , ORG was convinced that the applicant had in fact made the impugned remarks . The court further found that the ORG initiative comprised a small group of people whose members were determinable , so that each of these members was affected by the applicant \u2019s remarks .","The court then examined the question whether the applicant \u2019s remark , having regard to her right to freedom of expression guaranteed by LAW , had been justified . It stated that in discussions about vital issues of public interest , there was a presumption that a statement was permitted . Consequently , value judgments were protected under LAW even if they were harsh , polemic or exaggerated . However , LAW did not cover statements which were aimed at insulting a person in the first place , instead of contributing to the discussion on the subject - matter in dispute . The court found the applicant \u2019s remarks to be falling within that latter category of vituperation ( Schm\u00e4hung ) of others . By comparing the members of the ORG initiative to NORP , who had sterilised and killed mentally ill people solely because of their illness , the applicant had severely insulted these persons without having established a direct link to the subject in dispute .","On DATE ORG , without giving further reasons , dismissed the applicant \u2019s appeal on points of law against the judgment of ORG as ill - founded .","On DATE ORG refused to admit the applicant \u2019s constitutional complaint lodged on CARDINAL DATE . It found that the provision underlying the applicant \u2019s conviction , Section CARDINAL of LAW , was formulated in a sufficiently precise way , even though not all questions concerning group libel ( GPE ) had already been settled .","The competent criminal courts had not violated the right to freedom of expression . It could be left open whether the impugned remarks had correctly been qualified as vituperation . Even assuming that this was not the case , there was nothing to suggest that , when balancing the competing fundamental rights involved , freedom of expression prevailed .","Pursuant to Section CARDINAL of LAW , libel is punishable with imprisonment of DATE or a fine and , if libel has been committed by an assault , with imprisonment of DATE or a fine .","There is no specific provision in the LAW governing group libel , that is , the defamation of individual members of a group by a statement that only refers to the group as such . ORG libel falls to be examined under the general provision of Section CARDINAL of LAW . According to the well - established case - law of the NORP courts , notably ORG ( see , in particular , nos . CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL and CARDINAL BvR CARDINAL\/CARDINAL , decision of CARDINAL DATE , Decisions of ORG ) , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL - CARDINAL ) , it is possible to insult an individual member of a group by a collective term referring to the group as such ( Beleidigung unter einer GPE ) , if the insult can be linked to that individual . However , the group must be clearly distinguishable by external signs from the general public , and the victims must be determinable . It is not necessary that the defendant knows every single victim of his defamation .","Pursuant to Section CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure , a victim of libel is entitled to join the criminal proceedings against the defendant as an associated prosecutor . Section CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure provides that the defendant shall be charged the necessary expenses of an associate prosecutor , if he is convicted for an offence affecting the associate prosecutor . However , the court can wholly or partly abstain from ordering the defendant to pay these expenses , if such an order were inequitable ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61704","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2004,"docname":"CASE OF HAASE v. GERMANY","importance":1,"conclusion":"Violation of Art. 8 with regard to taking into care;No separate issue under Art. 6-1;Inadmissible under Art. 8 with regard to denial of access;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Ireneu Cabral Barreto","text":["The applicants were born in DATE and DATE respectively and live in GPE ) .","PERSON is the mother of CARDINAL children . While she was married to PERSON she gave birth to CARDINAL children , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , and the twins PERSON and PERSON , born in DATE . With her second husband , PERSON , she had CARDINAL children . PERSON was born in DATE , PERSON in DATE , ORG in DATE and PERSON on DATE . In DATE PERSON gave birth to her last child .","In DATE the relations between PERSON and PERSON deteriorated . In DATE M. instituted divorce proceedings and requested to be afforded parental rights over the children . By a decision of CARDINAL DATE ORG ( ORG ) granted parental rights over the CARDINAL younger children , PERSON , PERSON and PERSON , to PERSON and over the CARDINAL older children to her first husband . ORG appealed against the decision , but withdrew the appeal in DATE . In DATE PERSON moved with the CARDINAL children to live withher present husband . On DATE the ORG pronounced PERSON divorce from her first husband . The applicants have been married since DATE .","In DATE PERSON applied to ORG ( ORG f\u00fcr Kinder , ORG und PERSON ) for family aid . In order to be granted the aid , the applicants agreed to have their family situation assessed by a psychological expert . In DATE ORG instructed PERSON to draw up an expert report . The expert met PERSON and CARDINAL of her children on DATE and DATE , DATE and DATE at the applicants ' home .","Being of the opinion that the questions put to the children by the expert were irrelevant for the purposes of family aid and having regard to the expert 's objection to PERSON attending the meetings with the children 's teachers , the applicants refused to co \u2013 operate with the expert any longer .","On DATE the expert submitted his report to ORG . According to this report , the deficiencies in the children 's care and home conditions risked jeopardising their development seriously . There was a damaging cycle of events in which the applicants were unreasonably harsh with their children on repeated occasions and had beaten them . The children needed to be in a secure long - term placement and any further contact between them and the applicants would have to be avoided .","On DATE ORG applied to ORG for an interim injunction ( einstweilige Anordnung ) withdrawing the applicants ' parental rights over the CARDINAL children , namely their CARDINAL children , PERSON , PERSON , PERSON and PERSON , and CARDINAL of the children born during PERSON first marriage , namely PERSON , PERSON and PERSON .","On DATE , i. e. on DATE , ORG , without hearing the parents or their children , issued the requested interim injunction . The applicants were ordered to hand over the children forthwith to ORG . The officer in charge of enforcing the decision was authorised to use force if necessary to collect the children . Relying notably on the findings of the expert report , ORG found that the parents ' inability to give the children satisfactory care and education and an abusive exercise of parental authority jeopardised the physical , mental and psychological well - being of all of the children to the extent that their separation from the applicants appeared to be the only possible solution to protect them . ORG referred to the relevant provisions of LAW ( Articles DATE and DATE - see paragraphs CARDINAL and DATE below ) .","By a decision of DATE ORG supplemented its decision of DATE , prohibiting all access between the applicants and their children and the CARDINAL children of the first marriage , PERSON , PERSON and PERSON . The whereabouts of the children were not to be communicated to the applicants . ORG further prohibited all access between the CARDINAL other children of the first marriage and PERSON . She was also forbidden to come QUANTITY to the CARDINAL other children 's residence or their schools . ORG considered that the expert opinion was sufficient evidence to show that the separation of the parents from their children was necessary for the protection of the children . It had further been shown that the parents would object and try by all means to exert pressure upon the children . In order to avoid stress to the children , these measures were necessary in their best interests . The parents were urged to recognise their own deficiencies in respect of the care and the physical and psychological well - being of the children and take into account the clearly expressed need of the children for a change in their situation . The parents were invited to accept - at least for the time being - the measures taken and to contribute as far as possible to a calming of the general situation . This was only possible if the parents accepted the existing circumstances . The approach of ORG met in part the expressly stated wishes of the children . ORG concluded that the momentarily inevitable measures were proportionate to the urgent needs and the objective interests of all of the children .","The children were taken on DATE TIME from CARDINAL different schools , a nursery and from home and were placed in CARDINAL foster homes . The DATE youngest daughter , PERSON , was taken from the hospital and since that time has lived with a foster family .","In a letter of DATE Dr PERSON , a gynaecologist and head physician at the PERSON hospital in GPE , complained to ORG about the conduct of the authorities . He stated that , according to a telephone call of DATE , the CARDINAL children of PERSON as well as the newborn child in the hospital were to be removed from their mother without her knowledge . His patient was to be informed of the measure after her child had been taken from the nursery . Staff members were asked to take the child downstairs to the hospital 's entrance and place it in a taxi .","He , as the head physician , and the medical hospital staff were surprised and shocked by the lack of warning and considered this conduct an affront to both PERSON and the medical staff . Since DATE PERSON had been taken care of by the medical staff of the hospital . She had always given the impression of a being highly responsible person . She had come regularly to the preventive medical check - ups during her pregnancy . When she was accompanied by her children , the children behaved well , were friendly and well brought - up . There were no signs that they were in any way neglected or ill - treated .","On DATE ORG informed the applicants that the children had been granted financial assistance in the sum of ORG DATE and that the parents had to contribute to these fees according to their financial means .","On DATE the applicants appealed against ORG decision of DATE . They submitted that it was difficult to understand that in the context of family aid an expert opinion on the parents ' ability to bring up their children had been drawn up and that they had not been informed about this opinion . The contested decision was unexpected and had been given at a moment when PERSON was in a critical state of health , having given birth to her daughter DATE . They proposed witnesses who would confirm that the children had not been ill - treated , but were being brought up with love and understanding .","On DATE ORG held a hearing in the presence of the applicants assisted by a lawyer , PERSON first husband , representatives of ORG , a representative of a nursery and the expert PERSON The CARDINAL witnesses of the applicants ' own choosing were not heard and had to leave the courtroom .","ORG instructed PERSON to proceed with the assessment of the remaining children and to finalise his report . It further appointed a new expert , PERSON , to assess the applicants ' capacity to bring up their children .","In the following interviews to prepare the assessment , the applicants asked the expert make a tape - recording of the interviews . Upon the expert 's refusal to do so , the applicants were unwilling to continue to co - operate with him .","On DATE the ORG ( Oberlandesgericht ) dismissed the applicants ' appeal against the decision of DATE . It noted that ORG had had regard to the report submitted by ORG in connection with its request of DATE to revoke the applicants ' parental rights and to the expert opinion submitted by PERSON and that ORG had considered that the impugned measure was justified . The expert had concluded that the basic needs of the children were not satisfied and that patterns of violence and permanent shortcomings of all kinds determined the children 's day - to - day life . It was thus necessary to put an end to the risk to which the well - being of the children appeared to be exposed . A new expert opinion was to be expected by DATE . ORG found that the applicants ' appeal could therefore be dismissed without holding a hearing . It was against the best interests of the children to take them out of the new environment in which they were building up new contacts , and to restore them to their former family , there being the risk that they would be taken to a new environment again shortly afterwards .","On DATE the applicants challenged the judge at ORG for bias .","On DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , dismissed the applicants ' request for an interim injunction .","ORG found that the applicants ' constitutional complaint was neither inadmissible nor manifestly ill - founded . There were doubts in particular whether the courts had breached the applicants ' right to a fair hearing and their right to respect for their family life . However , if the requested interim injunction was issued and if later the constitutional complaint had to be dismissed , the children would have to be taken from the applicants again and placed somewhere else . Having regard to the fact that the expert opinion was to be drawn up by DATE , the applicants should await the outcome of the main proceedings rather than have the children run the risk of being separated from their parents again later . It had to be assumed that the competent courts would conduct the main proceedings speedily having regard to the time element in these matters .","On DATE ORG dismissed the challenge to the judge and on DATE another to the expert PERSON","On DATE the ORG appointed a lawyer of ORG as curator ad litem ( PERSON ) to represent the children in the proceedings . It instructed the already appointed experts to submit the results of their investigations obtained so far and discharged them from any further expert activity . It appointed a new expert , Professor PERSON , with a view to determining whether separating the children from the family was the only way of eliminating all danger for them .","On DATE Professor PERSON interviewed the applicants at their home . The interview lasted for TIME .","On DATE ORG , sitting as a bench of CARDINAL judges , set aside the decisions of ORG DATE and ORG of DATE and referred the case back to ORG .","In so far as the applicants complained about the decisions of ORG of DATE and DATE , ORG declared the constitutional complaint inadmissible , since the applicants had failed to appeal against these decisions in accordance with section CARDINAL of GPE ( PERSON \u00fcber die ORG der freiwilligen PERSON ) .","In so far as the constitutional complaint was admissible , ORG considered that , in accordance with the principles established in its case - law , the decisions of ORG and ORG violated the applicants ' family rights as guaranteed by LAW , first sentence , of the basic PERSON , taken together with LAW ( see \u201c Relevant Domestic Law \u201d below ) .","There were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality . The question whether the evidence established that there was a risk of harm to the children had not been adequately considered . ORG and ORG had merely referred to the report of ORG and the expert opinion . It did not appear from their decisions whether the expert 's conclusions were based on reliable facts . An assessment of the applicants ' submissions and considerations as to the possibility of ordering alternative measures , that would not have required the total revocation of parental rights , had not been made . Both ORG and ORG had failed to question the children or give the persons taking part in the proceedings the opportunity to be heard .","The measures which had been ordered had led to a drastic change in the lives of all the persons concerned and constituted a particularly serious interference with parental rights . However , no inquiries had been made , even by telephone , before the decision was taken . No reasons were given justifying the urgency of the matter .","ORG had no information on the possible effects of its decision , since ORG and the expert had not commented on this issue . When examining the advantages and disadvantages of a family measure it was , however , relevant to consider that a separation of the children from their parents could jeopardise the development of the children , in particular in DATE of life .","The courts had also failed to clarify the contradiction between the findings in the expert opinion according to which the applicants were not ready to co - operate and the fact that PERSON herself had asked to be granted child - rearing guidance . Furthermore there was no indication whether and to what extent the applicants had refused any contact or help offered by ORG and it was not clear which \u201c specific measures granting assistance \u201d ( einzelne ORG ) had been carried out in the past and why they were not successful .","ORG should have first clarified the questions which arose and in the meantime could have taken alternative provisional measures if there was serious reason to believe that the welfare of the children was at risk .","According to ORG , it could not be excluded that , prior to the termination of the proceedings on the merits , which had to be dealt with as a priority , ORG would issue another emergency decision . If so , ORG was directed to examine carefully whether , in the light of the evidence obtained in the meantime , the continued separation of the children from the applicants was still justified and whether a repeated change of the children 's place of residence would be in their best interests . If ORG found that the present situation were to be maintained , it would have to consider whether the applicants should be granted a right of access , restricted or subject to conditions if necessary , and whether , in strict accordance with the principle of proportionality , the effects of such a decision should be limited in time .","On CARDINAL and DATE CARDINAL of the children , PERSON , PERSON , PERSON and PERSON , were interviewed by the judge at ORG at the respective institutions where they were placed .","According to TIME of FAC of DATE , PERSON declared that he wished to return to his parents . He knew that there were certain reasons for placing him and his siblings in a different environment and confirmed that he had had too much work and strain at home . He sent his greetings to his brothers and sisters .","Nico , PERSON and PERSON were interviewed in another foster home . PERSON stated that he wished to know whether his parents and his \u201c favourite \u201d father ( Lieblingsvater ) were all right . He asked why he could not join his \u201c favourite \u201d father and whether somebody , his parents , his father or PERSON , could not come to see him . PERSON and PERSON were with him and , according to them , were all right . PERSON had let him know that she too wished to return home . He stated that he was fine . Asked about his dreams , he said that he wished to go to his \u201c favourite \u201d father who was very nice , better than his stepfather . In reply to the question whether the judge should leave a message , he dictated the following letter on a dictaphone : \u201c Dear PERSON ( his favourite brother ) , ( his favourite sisters PERSON and PERSON ) , dear PERSON , what a pity that we do n't see each other ... PERSON , PERSON , PERSON , PERSON , his favourite father and his parents should come and visit him . \u201d ( PERSON ( sein Lieblingsbruder ) , ( PERSON ) lieber PERSON , schade , dass wir uns nicht sehen ... PERSON , PERSON , PERSON , PERSON , PERSON seine NORP sollten ihn MONEY . )","The following letter to his mother was recorded on a dictaphone : \u201c Dear Mama , it is a pity that you do not come and best regards from PERSON and PERSON and PERSON and PERSON . PERSON and PERSON are all right . Yes and perhaps could you come to see us ? Or is that not possible ? \u201c ( PERSON ! PERSON , dass Du nicht kommst und liebe GPE PERSON dass es Lisa und Anna gut geht . PERSON , vielleicht : k\u00f6nntet PERSON herkommen . PERSON )","PERSON stated that she felt fine . She was in the company of PERSON and PERSON . Everybody said that she should tell her parents that everything was all right . She then added that she did not like it there .","PERSON regretted that \u201c poor PERSON was all on her own without any member of the family . She would never bear this . She had to protect PERSON and PERSON . That was her duty as the elder sister . PERSON was beaten very often in that place . She did not know the reason . In reply to a question , she stated that she was doing her homework thoroughly and that she was doing well in school . At home she had almost fallen asleep when doing her homework . When asked what message the judge could pass on , she said that she did not like the place and that she wished to return home . However , the staff did not believe her . She did not really like them . She did not want to go to another institution . She wished to go home . If she were not allowed to go home , she should at least be authorised to see everybody , her brothers and sisters , parents and stepfather . She missed taking PERSON to bed sometimes . Having been told that PERSON wished to return to his \u201c favourite \u201d father , PERSON replied that , unlike PERSON , she loved both her father and her stepfather .","On DATE , as a consequence of the decision of ORG , ORG set down for hearing on DATE the request of ORG of DATE to provisionally revoke the parental rights of the applicants over the children . It transferred to ORG the right to decide where the children should live ( Aufenthaltsbestimmungsrecht ) . ORG found that the best interests of the children did not require a modification of the present situation before a decision on the merits was given . ORG considered that its decision of DATE prohibiting the applicants all access to the children was still relevant , since it had not been set aside by ORG .","On DATE ORG held a hearing attended inter alia by the applicants assisted by a lawyer , PERSON first husband , the curator ad litem , a lawyer and representatives of ORG , the experts PERSON and Professor PERSON and the children 's paediatrician PERSON Professor PERSON gave details of her visit to the applicants ' home on DATE and resumed the content of the interview . Having studied the extensive files concerning the applicants and PERSON 's report , Professor PERSON could not confirm that the findings in the report were erroneous . She expressed the view that the children should not be returned to the applicants .","The children 's paediatrician , PERSON , stated that all the children had been his patients since their birth except the daughter born in DATE . Although he knew about the children 's problems , in particular the difficulties with PERSON , the applicants made a quite positive impression on him . It was a big family with many children . However , the applicants were loving parents who took great care of their children . There was no indication that the children had been beaten or otherwise abused .","The curator ad litem was opposed to contacts between the applicants and the children .","By an interim injunction of DATE , namely DATE , ORG provisionally transferred the custody ( Personensorge ) over the children to ORG and confirmed its decision of DATE . The expert was instructed to add to her report . She was requested to comment in particular on whether , in the best interest of the children , it was necessary to maintain the access prohibition , whether the children should be granted access to the older children of the first marriage , PERSON , PERSON , PERSON and PERSON , and if appropriate , in what way such contact could be arranged while keeping the children 's place of residence secret .","ORG relied in particular on the findings of the expert PERSON that the separation of the applicants from their children had to be maintained . The applicants were incapable of bringing up their children because of their own basic and irreparable educational deficiencies and their abuse of parental authority . The children were emotionally disturbed and presented unusual patterns of behaviour . They had been beaten and locked up . Furthermore the CARDINAL older children of the first marriage had approved the separation of the younger children from their mother and had refused any contact with her . The sole reason why PERSON was intent on giving a positive impression of herself was to obtain support from others . However , any such support was foredoomed .","ORG noted that Professor PERSON had not yet submitted her report . However , she had confirmed the findings of the expert PERSON and had stated at the hearing of DATE that there was no alternative to separating the children from the applicants . According to her , PERSON had never been willing to call her own behaviour into question . She satisfied her own needs only and refused to accept child - rearing guidance with a view to reducing her own deficiencies . In fact , she had admitted not having undergone therapy in DATE . Professor PERSON had found that PERSON 's expert opinion could not be objected to .","ORG considered that the numerous written statements of witnesses submitted by the applicants confirming that the children had not been beaten or ill - treated did not constitute sufficient evidence in their favour . Harm , such as verbal cruelty , could be of a psychological nature . The statement made by PERSON that she wished to return to the applicants did not reflect her real intention , but resulted from a conflict of loyalty .","ORG further compared the situation described in an expert report drawn up in DATE with the present situation : PERSON was always well - dressed while her husband looked tired and worn out . It concluded that PERSON was not aware of her problems . She aggravated with each new pregnancy the emotional deficiencies of the children . This had been confirmed by Professor PERSON after a discussion with the applicants on DATE .","ORG affirmed that its decision of DATE was based on its experience in cases where coercive measures had to be taken . Had the parents been warned of the requested measure , they would have offered resistance , as was shown by their own reaction and the excessive reaction of the media in the case . An enforcement of the court decisions with the intervention of the authorities and the police would have been contrary to the best interests of the children .","On DATE the applicants appealed against this decision to ORG .","On DATE the applicants challenged Professor PERSON for bias . They complained that she had intentionally delayed the preparation of her expert report in order to separate the children from their parents for a longer period . She could not be relied upon to act in the best interests of the children . Without having seen them , she had recommended at the hearing before ORG of DATE that they be separated from the applicants . Her unfriendly conduct vis - \u00e0 - vis the applicants , when interviewing them at their home on DATE , and the reference to files dating from PERSON divorce problems in DATE confirmed the view that she was not impartial .","On DATE the applicants challenged the judge at ORG for bias . They referred to previous decisions given by that judge in favour of ORG , allegedly in contrast to expert recommendations .","On DATE the judge declined to stand down .","On DATE the applicants ' lawyer again challenged the judge at ORG and Professor PERSON for bias .","On DATE ORG dismissed the challenge to the judge on the ground that the applicants ' allegations were unsubstantiated .","On DATE the ORG dismissed the applicants ' appeal against ORG decision of DATE .","On DATE ORG rejected the challenge for bias in respect of Professor PERSON","On DATE Professor PERSON submitted her report . She confirmed her previous findings .","On DATE ORG , sitting as a bench of CARDINAL judges , refused to entertain the applicants ' constitutional appeal against the decisions of DATE and DATE .","On DATE ORG held a hearing . The applicants , ORG , the curator ad litem and the experts PERSON and PERSON were present . The curator ad litem declared that the children had adapted to the changed living conditions and appeared to be comfortable with the new situation .","On DATE CARDINAL of the children living with their father , PERSON , PERSON and PERSON , were heard separately by ORG . They were opposed to seeing their mother .","By a decision on the merits of DATE , ORG withdrew the applicants ' parental rights over their CARDINAL children and the CARDINAL children of the first marriage previously living with them and prohibited access to them until DATE . It relied on Articles DATE , DATE and DATE LAW ( see paragraphs CARDINAL below ) . The authorities were compelled to take the contested measures , which were justified under LAW of LAW , and necessary in a democratic society for the protection of the health and the rights of the children within the meaning of LAW . It found that the domestic situation was difficult and that the children were in danger . The applicants , in particular PERSON , were inflexible and incapable of understanding the children 's needs and with her it would be impossible to implement any educative measures . The conditions in which the children had been brought up were highly unsatisfactory . The children had made positive progress in the foster homes in which they had been placed , had gained in confidence and were less affected by behavioural disorders .","By a separate decision of DATE the ORG prohibited contact between PERSON and her CARDINAL eldest children , PERSON , PERSON , PERSON and PERSON DATE , or in the case of PERSON eldest son PERSON , before he attained his majority .","The applicants appealed against the above decisions .","Article CARDINAL of LAW ) reads as follows :","\u201c ...","( CARDINAL ) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them . The state watches over the performance of this duty .","( CARDINAL ) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law , if those so entitled fail in their duty or if the children are otherwise threatened with neglect .","DATE of the Civil Code ( ORG ) provides that the family courts are under an obligation to order necessary measures if a child 's welfare is jeopardised ( GPE ) .","The first sub - paragraph of DATE provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child 's welfare .","The second sub - paragraph of Article CARDINALa provides :","\u201c Full [ parental ] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger [ Die gesamte Personensorge darf nur entzogen werden , wenn andere ORG erfolglos geblieben sind oder wenn anzunehmen ist , dass sie zur ORG der Gefahr nicht ausreichen ] . \u201d","According to LAW , the family court can restrict or suspend the right of access if such a measure is necessary for the child 's welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child 's well - being would otherwise be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG authority or an association ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90296","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2008,"docname":"SERGEYEV v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE region , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the Tsentralno - Gorodskoy District Court of Gorlovka awarded the applicant CARDINAL NORP hryvnias in compensation for damage caused to his property by a privately owned company , \u201c Z. \u201d .","That judgment became final and ORG instituted proceedings to enforce it .","On DATE the ORG instituted liquidation proceedings against the debtor company .","In this regard on DATE ORG terminated the enforcement proceedings against the debtor company and transferred the applicant \u2019s writ of enforcement to the liquidation commission for further processing .","The applicant complained to various ORG authorities about lengthy non - enforcement of the judgment in his favour , but to no avail . However , he did not sue ORG for its alleged inactivity or omissions .","The judgment of CARDINAL DATE remains unenforced .","The relevant provisions of ORG DATE and LAW of DATE are summarised in the case of ORG v. GPE ( ( dec . ) , no . GPE , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97930","languageisocode":"ENG","respondent":"MKD","branch":"CHAMBER","date":2010,"docname":"CASE OF TOMISLAV JOVANOVSKI v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\" (No.1)","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On CARDINAL DATE the applicant entered into an agreement with Mr PERSON ( \u201c the defendant \u201d ) under which the latter had agreed to produce and install some furniture in the applicant 's house . The applicant made an advance payment .","On DATE the applicant claimed annulment of the agreement since the defendant had not complied with it .","On DATE the applicant specified his claim and sought compensation .","On DATE the applicant lodged another compensation claim on a different ground . On DATE , the then ORG ( \u201c the first - instance court \u201d ) ruled partly in favour of the applicant ordering a cross - cancellation of debts ( \u043f\u0440\u0435\u0431\u0438\u0432\u0430\u045a\u0435 ) . It made no decision in respect of the applicant 's compensation claim since it had not been specified . On DATE ORG confirmed the decision on the merits and quashed it in respect of the trial costs .","After the defendant died , the first - instance court invited defendant 's heirs ( \u201c the heirs \u201d ) to submit a court decision recognising them as his successors .","On DATE the applicant successfully requested removal of the judge .","On DATE the applicant further specified his claim .","After CARDINAL hearing being adjourned due to the applicant 's absence , the first - instance court dismissed the applicant 's compensation claim on DATE . This decision was confirmed on the merits by ORG decision of DATE . On DATE ORG dismissed the applicant 's appeal on points of law of DATE . This latter decision was served on the applicant on DATE .","The applicant 's dismissal was annulled by a decision of ORG of DATE . He was reinstated on DATE .","On an unspecified date in DATE , the applicant brought an action against his employer claiming compensation for the unlawful dismissal .","On DATE the first - instance court ruled partly in his favour . This decision was upheld by ORG and ORG with decisions of CARDINAL DATE and DATE , respectively . This latter decision was served on the applicant on CARDINAL DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58131","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF HUBER v. FRANCE","importance":3,"conclusion":"Art. 6 inapplicable","judges":"R. Pekkanen","text":["As a secondary - school teacher of classics who has passed the agr\u00e9gation ( the highest competitive examination for teachers ) , PERSON has been a civil servant in the ORG education service since DATE .","While working at the Paul Eluard Lower Secondary School at ORG ( d\u00e9partement of LOC ) , he was sent on compulsory leave for DATE from DATE by a decision of the schools inspector for PERSON on DATE . The decision was based on LAW of CARDINAL DATE , which provides : \u201c Where the schools inspector \u2026 considers , in the light of a medical certificate or a report by a civil servant \u2019s superiors , that on account of the civil servant \u2019s physical or mental state , the children are exposed to immediate danger , he may send the civil servant concerned on compulsory leave for DATE on full salary . \u201d","On DATE the same inspector decided to suspend payment of the applicant \u2019s salary from DATE .","On DATE Mr PERSON applied to ORG to quash the decisions of CARDINAL DATE and DATE and sought a stay of execution of the latter decision .","By CARDINAL decisions of CARDINAL DATE the applicant was sent on extended sick - leave from DATE to CARDINAL DATE and then from CARDINAL DATE to PERCENT DATE and on extended leave of absence from CARDINAL DATE to CARDINAL DATE . On DATE Mr GPE applied to the same court to quash those CARDINAL decisions .","The hearing took place on DATE . In a judgment of the same date ORG joined the CARDINAL applications , quashed the decision of CARDINAL DATE and the one of DATE suspending payment of the applicant \u2019s salary , decided that there was no longer any need to rule on the application for a stay and dismissed the application to have the decisions of CARDINAL DATE quashed . The judgment read as follows :","\u201c \u2026","As to the compulsory leave","\u2026","Mr PERSON maintained that the headmaster \u2019s report on which the decision complained of was based had been drawn up on DATE , whereas the decision whereby he was sent on compulsory leave had not been issued until DATE . Serious incidents occurred on account of the teacher \u2019s lack of authority . While the headmaster said that Mr GPE \u2019s behaviour had jeopardised pupils\u2019 safety , he did not , however , establish that he had taken the measures , including disciplinary measures , that were within his powers and which would have prevented the situation from becoming critical . Nor does it appear from the report produced that the facts were such as to justify applying LAW decree [ of DATE ] , which only applies in very specific circumstances that justify describing the danger to which the children are exposed as immediate \u2026","As to the suspension of payment of salary","Although LAW decree [ no . CARDINAL - CARDINAL ] of CARDINAL DATE authorises the administrative authorities to stop paying the salary of a civil servant on extended sick - leave or extended leave of absence who refuses to undergo the treatment and examinations his state dictates , it could not be applied to Mr GPE , who at the time when the impugned decision suspending payment of his salary was taken was not on extended sick - leave or extended leave of absence \u2026 \u201d","The applicant appealed to the ORG d\u2019Etat on DATE . He sought to have the judgment of DATE quashed in so far as ORG had held that it was unnecessary to rule on the application for a stay of execution and had dismissed the application to quash the decisions of CARDINAL DATE .","According to the ORG , ORG filed observations on DATE , to which Mr PERSON replied on DATE . The applicant had produced new documents on DATE , CARDINAL DATE , DATE and DATE and on DATE . On CARDINAL DATE the case had been assigned to LAW the ORG d\u2019Etat , on DATE a reporting judge had been appointed and on DATE a preparatory sitting had been held .","On DATE the ORG d\u2019Etat held a hearing , and on CARDINAL DATE it delivered a judgment in which it dismissed the appeal .","By a decision of CARDINAL DATE the applicant was transferred to ORG at Athis - Mons ( PERSON ) but he could not take up his duties until the appropriate medical board had ruled on his case . In a letter of CARDINAL DATE to the Minister of ORG he asked the Minister to \u201c rule on his administrative position \u201d in respect of the period after CARDINAL DATE and sought payment of an advance on his salary .","On DATE the applicant lodged CARDINAL applications with ORG . In CARDINAL of these he sought to have quashed the implicit refusal of his request for a review of his administrative position and for an advance on his salary , submitting that it was not normal for him to be on unpaid leave and that the medical board had not ruled on his case , thereby preventing him from taking up his duties at LOC at Athis - Mons . In the other application he sought a stay of execution of that implicit refusal , relying on his financial difficulties .","On DATE the President of ORG , taking the view that , according to LAW of ORG , ORG had no jurisdiction to hear the foregoing applications , ordered under LAW CARDINAL of the same code that the files should be sent to the President of ORG of the ORG d\u2019Etat .","In an order of CARDINAL DATE the President of ORG of the ORG d\u2019Etat designated ORG as the court that would hear the applications in question . The latter were registered in that court \u2019s registry on DATE .","On DATE the Director of ORG for GPE filed a pleading to which were appended CARDINAL decisions of DATE designed to resolve Mr PERSON \u2019s position . In the first decision the applicant \u2019s extended leave of absence was prolonged from DATE to CARDINAL DATE , and in the second he was reinstated in his post at ORG at Evry .","In his pleading in reply registered on DATE the applicant said that he had lodged a preliminary administrative appeal against the second of those decisions ( he was seeking reinstatement in the post at FAC at ORG , where he had last been posted ) .","In a further pleading registered on CARDINAL DATE the applicant \u201c confirm[ed ] \u201d that he was seeking to have both the aforementioned decisions quashed .","In a judgment of DATE ORG joined all the applications , dismissed that seeking to have the decisions of DATE quashed and decided that it was unnecessary to rule on those seeking to have quashed the implicit refusal of Mr PERSON \u2019s request for a review of his position and a stay of execution of that refusal .","On DATE the applicant appealed to the ORG d\u2019Etat against the judgment of DATE .","On DATE the ORG d\u2019Etat decided to transfer the appeal to ORG . The decision read as follows :","\u201c By LAW decree [ no . CARDINAL ] of CARDINAL DATE , \u2018 From DATE ORG shall have jurisdiction to rule on appeals against judgments of ORG on applications for judicial review of individual decisions taken in respect of civil and public servants.\u2019 Mr GPE \u2019s \u2026 application , registered on DATE , whereby he is appealing against a judgment on an application for judicial review of decisions concerning his career as an agr\u00e9gation - qualified secondary - school teacher , therefore falls within the jurisdiction of ORG .","Admittedly , Mr GPE maintained that the PERSON d\u2019Etat had jurisdiction to hear his application in view of the link between it and [ the ] application \u2026 made by him on CARDINAL DATE [ see paragraph CARDINAL above ] and LAW of ORG LAW provides : \u2018 Where the PERSON d\u2019Etat has before it a submission which it has jurisdiction to hear as the appellate court , it shall also have jurisdiction to entertain related submissions which would normally fall within the jurisdiction of an ORG of Appeal.\u2019 There is , however , no link between the present application and the submissions in the application [ made on DATE ] .","\u2026 \u201d","The ORG d\u2019Etat \u2019s decision of DATE was registered in ORG registry on DATE .","The hearing took place on DATE , and in a judgment of CARDINAL DATE ORG dismissed the applicant \u2019s appeal on the following grounds :","\u201c \u2026 by means of CARDINAL decisions of DATE the Director of ORG for GPE prolonged the applicant \u2019s extended leave of absence on full salary from DATE to CARDINAL DATE and reinstated him in his duties at the Paul Eluard Lower Secondary School at ORG with effect from DATE . Mr PERSON \u2019s applications seeking to have quashed and stayed the authorities\u2019 implicit refusal to give a ruling on his position thus became devoid of purpose on DATE , the date of the judgment appealed against . The fact that he had not been assigned to any duties at the beginning of DATE in DATE and had not received any salary since DATE has no bearing in this connection \u2026 \u201d","On DATE Mr PERSON appealed on points of law to the ORG d\u2019Etat against ORG judgment of DATE . The case is still pending .","A civil servant in post is entitled , inter alia , to extended sick - leave for a maximum period of DATE where it is established that he is suffering from an illness that makes it impossible for him to carry out his duties , requires prolonged treatment and care , is disabling and has been confirmed as serious . The civil servant remains on full salary for DATE and on CARDINAL salary for DATE . He also retains his entitlement to the full supplementary family allowance and the full residence allowance ( section GPE ) of PERSON no . CARDINAL of DATE making provisions governing the civil service ) .","He is also entitled to extended leave of absence for DATE on full salary and thereafter for DATE on CARDINAL salary if he is suffering from tuberculosis , mental illness , cancer or poliomyelitis . He retains his entitlement to the full supplementary family allowance and the full residence allowance . If the illness has been contracted in the course of his duties , the aforementioned periods are increased to DATE and DATE respectively . Extended leave of absence is normally granted only at the end of the full - salary period of extended sick - leave ( section CARDINAL(CARDINAL ) of the PERSON ) .","Extended sick - leave and extended leave of absence are granted after a medical examination and authorisation from the appropriate medical board ( LAW no . CARDINAL - CARDINAL of DATE on the appointment of civilian and military medical boards , physical - fitness requirements for admission to posts in the public service and rules on sick - leave for civil servants ) .","Where a departmental head considers , in the light of a medical certificate or a report by a superior , that a civil servant \u2019s state of health might justify his being sent on extended sick - leave or extended leave of absence , he may take steps in order to have the person concerned undergo a medical examination ( LAW ) .","A person on extended sick - leave or extended leave of absence may not resume his duties at the end of or during that leave unless he is declared fit after a medical examination by an approved specialist and with the agreement of the appropriate medical board ( Article CARDINAL of the decree ) .","Articles R. CARDINAL and NORP CARDINAL of ORG Code provide :","Article R. CARDINAL","\u201c Jurisdiction to hear all individual disputes , including those over pecuniary matters , which affect civil servants or employees of the ORG and of other public entities or authorities \u2026 shall be vested in ORG within whose territorial jurisdiction the place of work of the civil servant or employee affected by the impugned decision is situated .","If the decision in question concerns an appointment or entails a change of posting , jurisdiction shall be determined by the location of the new posting .","If the decision in question concerns a dismissal , a retirement or any other measure entailing termination of service , or if it concerns a former civil servant or employee , or a civil servant or employee without a posting on the date when the impugned decision was taken , jurisdiction shall be determined by the location of the civil servant \u2019s last posting .","\u2026 \u201d","Article R. CARDINAL","\u201c Where an Administrative Court of Appeal or Administrative Court is seised of a case which it considers to be within the jurisdiction of an administrative court other than the ORG d\u2019Etat , its president shall without delay forward the file to the President of ORG of the ORG d\u2019Etat , who shall settle the issue of jurisdiction and assign the case to be tried in whole or in part by the court that he shall declare to have jurisdiction . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92969","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2004,"docname":"DES FOURS WALDERODE v. THE CZECH REPUBLIC","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON Fours Walderode , was a NORP and NORP national . He was born in DATE and died on DATE . On DATE the applicant 's widow , PERSON , took her late husband 's place in the proceedings before the ORG .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant 's stepmother and his CARDINAL stepbrothers , all NORP nationals , owned real estate in former GPE . In DATE the property was confiscated under Presidential Decrees nos . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL , which entered into force on DATE and DATE respectively .","The applicant 's stepmother died in DATE leaving her real estate to the applicant , and conferring the succession rights of her deceased sons on the applicant . She had never acquired NORP citizenship .","The applicant left GPE in DATE , thereby forfeiting his NORP citizenship , and returned in DATE . He was granted NORP citizenship in DATE .","On DATE the applicant lodged a claim for restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no . CARDINAL\/CARDINAL and which had been sold by his father before the Second World War . He referred to LAW of DATE , claiming that he had inherited the property .","On DATE the GPE nad ORG , referring to the documentary evidence , dismissed his claim on the ground that his stepmother and stepbrothers had not been loyal to the NORP State during the NORP occupation and had not acquired NORP citizenship after the Second World War . It found , with reference to section CARDINAL(CARDINAL ) of LAW DATE , that the applicant was not the owner of the property , as his stepmother and stepbrothers had not satisfied the requirements for restitution , and that the applicant 's claim in respect of his father 's former property fell outside the scope of the restitution legislation .","On DATE ORG , having assessed a substantial amount of documentary evidence and having heard the parties to the dispute , upheld ORG decision . It stated , inter alia , that LAW of DATE an heir acquired an estate only upon its distribution ; thus the dates of the acquisition of the estate and the death of a testator were different . In fact , from the death of a testator until the time of distribution of the estate , the property was to be regarded as hereditas iacens . According to the court , real estate could be lawfully confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir . The court held that the property at issue had been confiscated ex lege by Presidential Decree no . CARDINAL\/CARDINAL from the applicant 's stepbrothers , NORP nationals , after they had died but whilst they had still been the notional owners of the estate . As the original owners , including the applicant 's stepmother , had not reacquired NORP citizenship as provided for in section CARDINAL(CARDINAL ) of LAW DATE , the applicant could not be considered to be entitled to restitution .","On DATE ORG dismissed a constitutional appeal by the applicant as unsubstantiated , stating in particular that , under LAW of DATE , which had been applicable at the relevant time , an heir acquired the estate upon its distribution . In the present case the time of acquisition of the estate and the death of the testator did not fall within the same period . In order to transfer the estate to an heir , special proceedings before the national courts had to be instituted of the court 's own motion . If such proceedings were not instituted , the estate was hereditas iacens until delivery of a court judgment . Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings . The estate was considered to remain in the possession of the testator until acquired by an heir . The court observed that , in the present case , the confiscation had taken place when the applicant 's stepbrothers died . However , the estate had not yet been administered by the national authorities and , therefore , the applicant had not acquired the property at issue . Moreover , as the stepbrothers had not been entitled to claim restitution of the property under LAW , and since the applicant 's stepmother had been of NORP origin and had never acquired NORP citizenship , the applicant himself was not entitled to claim restitution pursuant to LAW .","( a ) In DATE the applicant instituted inheritance proceedings in GPE in respect of the property claimed in the above restitution proceedings . On DATE CARDINAL certificates of succession were issued to the effect that the applicant was the universal heir of his stepbrothers .","( b ) On DATE the relevant NORP authority issued a document certifying that the applicant 's stepbrothers had not served in the ORG .","( c ) The applicant was the owner of real estate in ORG . This was confiscated from him under Presidential Decree no . CARDINAL\/CARDINAL . In DATE the former local authority acknowledged the confiscation and granted him leave to appeal to ORG .","( d ) On DATE ORG , considering the applicant 's communication ( no . CARDINAL\/CARDINAL ) concerning the ORG real estate , held that LAW , read in conjunction with LAW , had been violated by GPE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59616","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2001,"docname":"CASE OF HORVAT v. CROATIA","importance":1,"conclusion":"Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award","judges":"Georg Ress","text":["On DATE the applicant lent to ORG , a company in GPE , MONEY ( ORG ) for a period of DATE at a rate of interest of PERCENT . On DATE she lent to ZIP , a company in GPE , ORG for a period of DATE at a rate of interest of PERCENT .","As the said companies failed to repay the loans , the applicant instituted proceedings against ZIP and ORG in ORG ( PERSON ) .","The proceedings against ZIP and its alleged owner GPE commenced on DATE when the applicant , together with CARDINAL other plaintiffs , filed an action for repayment of their loans .","On CARDINAL DATE the court asked the applicant \u2019s counsel to provide the address of the second defendant . On DATE the applicant \u2019s counsel submitted the address concerned .","A hearing was scheduled for DATE but it was adjourned since the defendants failed to appear . It turned out that the defendants had not received notice of the date of the hearing as the address indicated was incorrect . The court asked the applicant \u2019s counsel to submit the defendants\u2019 correct address within DATE .","The next hearing was scheduled for DATE . However , it appears that in the meantime ZIP had ceased to exist and , as GPE \u2019s address remained unknown , the court ordered the applicant \u2019s counsel to request ORG ( NORP za socijalnu skrb ) to appoint a legal representative for GPE","On DATE the applicant \u2019s counsel informed the court that ORG had , by its decision of DATE , appointed a legal representative for GPE","On DATE the court asked the applicant \u2019s counsel to submit within DATE a certificate from the registry of ORG ( PERSON ) concerning the legal status of ZIP .","The next hearing , scheduled for DATE , was also adjourned due to the absence of the defendants . It turned out again that ZIP and GPE had not received notice of the hearing date as the address indicated was incorrect . The court invited the applicant \u2019s counsel to inform it within DATE whether ZIP had in fact ceased to exist .","According to the Government , during the next hearing on DATE , the court decided upon the parties\u2019 application to return the proceedings to the status quo ante ( zahtjev za povrat u prija\u0161nje stanje ) . Due to the absence of ZIP the hearing was adjourned to CARDINAL DATE . It appears that the proceedings are still pending before ORG .","The proceedings against ORG and its alleged owner PERSON commenced on DATE when the applicant , together with CARDINAL other plaintiffs , filed an action for repayment of their loans with ORG .","The court asked the applicant \u2019s counsel to provide the address of PERSON On DATE the applicant \u2019s counsel informed the court of PERSON \u2019s address .","The hearing scheduled for DATE was adjourned due to the absence of the defendants . It turned out that ORG was no longer at its previous address and that PERSON was in detention on remand . The applicant \u2019s counsel informed the court that PERSON had been released from detention and requested that the notices for the next hearing be sent to the defendants at the same addresses as before .","The hearing on DATE was again adjourned due to the defendants\u2019 absence . It appears that ORG had in the meantime ceased to exist and that PERSON had changed her address . The court invited the applicant \u2019s counsel to inform it within DATE whether ORG had in fact ceased to exist and of the correct address of PERSON","On DATE the applicant \u2019s counsel informed the court of the defendants\u2019 addresses .","The next hearing , on DATE , was also adjourned due to the defendants\u2019 absence for the same reasons as before , that is that ORG had ceased to exist and that PERSON had changed address . The court decided to look into the criminal case file no . KO-CARDINAL\/CARDINAL in the same court , where criminal proceedings had been instituted against PERSON , in order to obtain her proper address . Through that the court found her address .","By order of CARDINAL DATE the applicant \u2019s counsel was requested to furnish the court with a certificate from the registry of ORG regarding the legal status of ORG .","On DATE the applicant \u2019s counsel submitted the requested document .","The next hearing , scheduled for DATE , was adjourned due to the defendants\u2019 absence . The documents indicate that they had not received the notice of the hearing date .","The next hearing , scheduled for DATE , was adjourned for the same reason . The court invited the applicant \u2019s counsel to submit PERSON \u2019s correct address within DATE .","On DATE the applicant \u2019s counsel informed the court that in the police registry PERSON \u2019s address was the same as before . He proposed that a legal representative be appointed for PERSON","On DATE the court ordered the applicant \u2019s counsel to request ORG to appoint a legal representative for PERSON","On DATE the applicant \u2019s counsel informed the court that ORG had , by its decision of CARDINAL DATE , appointed a legal representative for GPE","According to the ORG , during the next hearing , on DATE , the court issued a default judgment ( presuda zbog izostanka ) against PERSON The available documents show that PERSON had ceased to exist .","On DATE the court sent a letter to ORG asking for a certificate regarding the legal status of ORG . On DATE the court received a letter from ORG with a certificate that wrongly contained information about another firm , instead of ORG .","On DATE the court again sent a letter to ORG asking whether ORG still existed . On DATE the court also requested the applicant \u2019s counsel to submit the same information . It appears that the case is still pending before ORG .","The relevant part of LAW on LAW ( \u201c LAW \u201d \u2013 PERSON o PERSON ) , which came into force on DATE , reads as follows :","\u201c ORG may , exceptionally , examine a constitutional complaint prior to exhaustion of other available remedies , if it is satisfied that a contested act , or failure to act within a reasonable time , grossly violates a party \u2019s constitutional rights and freedoms and that , if it does not act , a party will risk serious and irreparable consequences . \u201d"],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100406","languageisocode":"ENG","respondent":"ROU","branch":"ADMISSIBILITY","date":2010,"docname":"BOICESCU AND OTHERS v. ROMANIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicants , PERSON , Mr PERSON and Mr \u015eerban PERSON are NORP nationals who were born in DATE , DATE and DATE , respectively , in GPE and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .","On unspecified dates the applicants filed CARDINAL administrative applications with ORG for LAW . CARDINAL of CARDINAL ( the Commission ) seeking the restitution in natura of the immovable property located at no . CARDINAL Unirii St. in GPE and nationalised by the ORG on the basis of the provisions of LAW No . CARDINAL of DATE .","By CARDINAL decisions of DATE and CARDINAL May CARDINAL the Commission rejected the applicants ' claim seeking the restitution in natura of the immovable property , on the ground that it was occupied by tenants , and acknowledged their right to compensation under the procedure provided for by PERSON No . CARDINAL of DATE .","On DATE the applicants brought an action against the Commission seeking the recovery of possession of the claimed immovable property .","On DATE the ORG valued the immovable property to be worth MONEY ( ROL ) , capped the amount in accordance with LAW CARDINAL of DATE and awarded the applicants the total sum of ROL CARDINAL in compensation .","By a decision of DATE the GPE ORG rejected the applicants ' action seeking the recovery of possession of the claimed immovable property . It held that by pursuing the procedure provided for by Law No . CARDINAL of CARDINAL the applicants had acknowledged that the immovable property had been nationalised legally by the ORG . Therefore , they could no longer bring court proceedings seeking the recovery of possession of their property , as the legal bases of the CARDINAL sets of proceedings were different and irreconcilable . The applicants appealed the decision .","By a decision of DATE the GPE ORG allowed the applicants ' appeal and quashed the decision of DATE on the ground that the claimed immovable property had been nationalised illegally by the ORG . The court also ordered the restitution in natura of the immovable property to the applicants . The ORG appealed the decision .","By a final decision of DATE ORG of Appeal allowed the ORG 's appeal ( recurs ) and upheld the decision of CARDINAL DATE on the ground that the administrative decisions acknowledging the lawfulness of the nationalisation had not been contested by the applicants , the said administrative decisions remained final and therefore the applicants could no longer institute proceedings seeking the recovery of possession of the claimed immovable property .","In a letter of DATE the applicants informed the ORG that they refused to collect the compensation awarded to them on the basis of PERSON No . CARDINAL of DATE on the ground that the compensation awarded did not reflect the market value of the property .","There is no evidence in the file that the applicants filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws ( Laws Nos . DATE , CARDINAL of DATE and CARDINAL of DATE ) seeking restitution in natura or compensation equivalent to the market value of the claimed immovable property .","In a letter of DATE , delivered to the applicants on DATE , they were asked to inform the ORG if they had filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws . The letter remains unanswered to date .","a ) The relevant domestic legal provisions concerning excerpts from Law Decree No . CARDINAL\/CARDINAL regulating the nationalisation of immovable property and excerpts from Law No . NORP regulating the legal status of immovable property nationalised for apartment building use are summarised in GPE ( ( dec . ) , no . CARDINAL , DATE ) .","b ) The relevant provisions of Law No . CARDINAL\/CARDINAL of DATE regulating the legal status of immovable property unlawfully nationalised by the ORG DATE and DATE , as it was amended by Law No . DATE , are summarised in PERSON and PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) .","c ) The relevant provisions of Law No . CARDINAL\/CARDINAL of DATE amending PERSON No . CARDINAL\/CARDINAL regulating the legal status of immovable property unlawfully nationalised by the ORG DATE and DATE , which entered force on DATE , read as follows :","\u201c ( CARDINAL ) . Individuals who were compensated under the procedure provided for by the provisions of LAW . CARDINAL of DATE , ( ... ) , could claim the restitution in natura of the claimed immovable property insofar as the property had not been sold by the time of the entry into force of the law and insofar as they had returned the amount received as compensation , ( ... ) .","( CARDINAL ) . Where the immovable property was sold in compliance with the provisions of LAW . CARDINAL of DATE , ( ... ) , the entitled individuals have a right to equivalent compensatory measures which reflect the market value of the immovable property ( ... ) . Where the entitled individuals were awarded compensation on the basis of the procedure provided for by LAW . CARDINAL of DATE , ( ... ) , they have a right to be awarded the difference in value between the sums they had cashed in and the market value of the immovable property ( ... ) . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71522","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2005,"docname":"ELSANOVA v. RUSSIA","importance":3,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , ORG , is a NORP national , who was born in DATE . She currently lives in ORG , LOC , GPE . Before DATE she used to live in PERSON . She is represented before the ORG by PERSON and PERSON , lawyers of FAC ( GPE ) and ORG ( GPE ) . The respondent Government are represented by ORG , ORG at ORG .","The facts of the case are partially disputed by the parties . They may be summarised as follows .","In DATE the applicant , who used to live in ORG , set up a farm in the village of GPE , GPE . In DATE she , together with her sister PERSON , bought CARDINAL cows at a collective farm in ORG , which she brought to ORG . The applicant submits that in ORG she owned a house of CARDINAL rooms and DATE cow - shed . She also owned a GPE tractor , a caterpillar tractor and a GPE car .","The applicant \u2019s brother PERSON and neighbour PERSON permanently lived in PERSON with their families and took care of the applicant \u2019s cattle , for which she paid them a DATE salary .","In DATE hostilities started in GPE between the NORP military and the armed groups of the NORP rebel fighters . PERSON and other towns and villages came under attack from the NORP military forces , which were trying to regain control over the Republic .","In DATE the applicant left PERSON because of the hostilities and went to PERSON .","The applicant submits that on DATE the village unexpectedly came under attack from the air . As a result of a blast the applicant \u2019s brother PERSON received a splinter wound in the back and bled heavily . The applicant \u2019s niece PERSON , aged four , was also wounded by a blast . They both died within TIME without receiving medical help . Their neighbour PERSON was also killed by a blast on DATE .","The strikes continued DATE and the applicant and her family members had to hide in a cave . During TIME the applicant and her relatives brought the bodies of her brother and niece to the family cemetery and hastily buried them .","According to the applicant , the attack on the village continued until DATE . All her property and her father \u2019s house , situated nearby , were destroyed . Her cattle were killed and the vehicles owned by her were destroyed .","When the attack was over the applicant and her relatives walked from their village to ORG . From there the applicant arrived at the village of ORG , LOC , where she currently resides .","In DATE the Civil Registration office of LOC issued death certificates in respect of PERSON - born on DATE , died on DATE in PERSON ( the applicant submits that there was a mistake in the recorded date of death ) - and in respect of GPE LANGUAGE - born on DATE , died on DATE in ORG .","On DATE the military commissariat of ORG confirmed that , for pension purposes , the applicant \u2019s brother PERSON had been taken off the military draft register as of DATE because of his death .","The applicant submits that she applied to the prosecutor \u2019s office and to the court of the LOC district on unspecified dates in DATE and DATE . The applicant is not aware of the results . She submits that an officer at the prosecutor \u2019s service told her to stop complaining or she would \u201c disappear \u201d . At some date a group of soldiers on armoured personnel carriers ( ORG ) came to her house , produced a copy of her application to ORG and tore it up . They threatened her with revenge if she continued to complain . The applicant did not pursue any domestic remedies afterwards , fearing for her life .","The Government submit in their Memorandum of DATE that the information contained in the applicant \u2019s complaint , namely the attack on ORG , the death and wounding of its residents , including the applicant \u2019s relatives , and the destruction of her property was not brought to the attention of the competent authorities . There is no record of her alleged complaints to the prosecutor \u2019s office or to the court . Following the communication of the complaint the local prosecutor \u2019s office has been carrying out a verification of the complaints .","The Government further state that the courts in GPE started functioning in DATE . There is no record of the applicant \u2019s application to any district court in GPE . On DATE the applicant was questioned by a judge of a district court and stated that she had never applied to a court with a complaint .","The applicant submits that as a result of the sustained shock she became ill and was operated on . In DATE she was classified as disabled due to her illness .","The applicant submitted the following documents to support her claims .","First , she submitted CARDINAL application forms : a brief CARDINAL dated DATE , and a more detailed CARDINAL dated DATE . In her application form of DATE the applicant alleged a violation of LAW No . CARDINAL concerning the damage to her property and of LAW and did not mention the death of her relatives . Her complaints under LAW , CARDINAL and DATE of the ORG are set out in the second application form .","The applicant submitted her own statements of facts , dated DATE and DATE . She also submitted a statement by her sister PERSON , who was not herself a witness of the events in GPE . The applicant also submitted a statement by PERSON , who was in ORG on DATE , which corroborated the applicant \u2019s account . The statement does not indicate the witness \u2019s address or identity document . It is dated DATE .","The applicant submitted medical documents indicating that in DATE she underwent an operation for cancer and that in DATE she received post - operational treatment .","As a proof of her ownership of the property in ORG and its destruction the applicant submitted a letter issued in DATE by an enterprise in ORG which stated that in DATE the applicant had purchased there a CARDINAL head of cattle for the sum of roubles ( RUR ) CARDINAL .","In DATE the administration of the village of ORG issued a note to confirm that in DATE the applicant had regularly travelled to LOC to take care of the cattle and her farm there , which was destroyed in DATE .","The Government submitted a letter from ORG which stated that the applicant had never applied to a court in GPE with a claim for compensation by way of damages .","They also submitted a copy of the applicant \u2019s written explanations addressed to the chairman of ORG , dated DATE and collected by a judge of that court . The applicant stated that on DATE she had been subjected to an air attack in GPE , GPE . As a result of the attack the applicant \u2019s house and farm , CARDINAL cows , CARDINAL tractors and a \u201c FAC car were destroyed . CARDINAL persons had been killed as a result of the attack . The applicant further stated that she had applied to ORG which had failed to react . The applicant had not applied to the law - enforcement bodies in ORG , because they were not functionning in DATE . In DATE the applicant talked to a representative of FAC and decided to apply to the international court ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99162","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF ALKES v. TURKEY (No. 2)","importance":3,"conclusion":"No violation of Art. 6-1","judges":"Fran\u00e7oise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["ORG The applicant , who was born in DATE , currently resides in GPE .","On DATE the applicant was taken into police custody on suspicion of membership of an illegal organisation . On DATE he was placed in detention on remand .","On DATE the public prosecutor at ORG filed a bill of indictment against the applicant , charging him under Articles CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL , DATE ( CARDINAL ) , DATE and CARDINAL of the former Criminal Code with membership of an illegal organisation and armed robbery .","On DATE ORG convicted the applicant under LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) of the former LAW , and sentenced him to DATE and DATE imprisonment for the former offence and to DATE and DATE imprisonment for the latter offence . ORG further stated that the provisions of LAW no . DATE , which governed conditional release , the suspension of proceedings and the execution of sentences in respect of certain offences committed before DATE , had to be taken into account in the execution of the sentence in relation to the offence under LAW ) .","On an unspecified date the applicant appealed against the judgment of ORG . The public prosecutor did not lodge an appeal .","On DATE ORG quashed the judgment of ORG , finding that the classification of the applicant 's offence had been erroneous . ORG further held that the applicant 's acquired rights in his former conviction by the decision dated DATE had to be safeguarded in the new judgment which would be rendered by ORG .","The applicant was consequently tried afresh before ORG . On DATE ORG convicted the applicant under LAW for attempting to undermine the constitutional order and sentenced him to DATE and DATE imprisonment . ORG stated in its judgment that the applicant 's acquired rights had been observed because in the first judgment the applicant had been sentenced to a total of DATE imprisonment , whereas in the new judgment the sentence was reduced .","On DATE the applicant appealed against this judgment arguing , inter alia , that his acquired rights had not been protected . He maintained that , although the sentence imposed by ORG in its second judgment had been lower than that originally imposed , under the latter he would have been conditionally released pursuant to PERSON no . DATE after DATE , thus actually serving a shorter sentence .","On DATE ORG upheld the reasoning in the judgment of ORG , and dismissed the appeal .","Following the entry into force of the new Criminal Code on DATE , ORG reopened the proceedings against the applicant in order to review his sentence , pursuant to the provisions of the new LAW . As an interim measure , on DATE the applicant was conditionally released pending the outcome of the proceedings . On DATE ORG found that the provisions of the former criminal code were more favourable to the applicant and therefore decided not to apply the provisions of the new LAW . On CARDINAL DATE ORG rejected the applicant 's appeal . In the meantime , following his release , the applicant fled to GPE , where he currently resides .","Section CARDINAL ( CARDINAL ) of PERSON no . DATE , stipulates , inter alia , that persons who were serving their prison sentences following a conviction in respect of crimes committed before DATE were entitled to a DATE reduction in their total sentence under the relevant execution regulations .","Section CARDINAL ( CARDINAL ) of this PERSON states that the provisions of LAW are not applicable to , inter alia , ORG and CARDINAL of the former Criminal Code .","Article CARDINAL ( CARDINAL ) of the former Code of Criminal Procedure stipulates that , upon an appeal lodged solely by the accused , or by the prosecutor for the benefit of the accused , the new judgment may not impose a sentence which is more severe than that which was imposed originally ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90212","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF MUMINOV v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13+3;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 34;Remainder inadmissible;Just satisfaction reserved","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and is serving a sentence of imprisonment in GPE .","The applicant arrived in GPE in DATE and resided in the town of GPE in LOC . It appears that until DATE he returned to GPE for several short periods of time . In DATE he was convicted by a NORP court and sentenced to CARDINAL months\u2019 imprisonment for having used a false migration card . After his release , in DATE he moved to PERSON , a provincial town in LOC , where he was employed as a cook . On DATE the applicant sought a temporary residence authorisation ( \u0440\u0430\u0437\u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u043d\u0430 \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u043e\u0435 \u043f\u0440\u043e\u0436\u0438\u0432\u0430\u043d\u0438\u0435 ) and apparently applied for NORP citizenship . It appears that his application was rejected on DATE ( see paragraph CARDINAL below ) . According to the applicant , he became aware of that refusal only on DATE .","Most recently , from DATE to DATE the applicant had a valid temporary residence registration ( \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u0430\u044f \u0440\u0435\u0433\u0438\u0441\u0442\u0440\u0430\u0446\u0438\u044f ) in LOC . According to the applicant , on an unspecified date in DATE the Chief Inspector of ORG in LOC refused to renew it . It appears , however , that no formal decision was issued .","According to the NORP authorities , in DATE CARDINAL NORP nationals complained to ORG ( ORG ) that the applicant had been engaged in anti - constitutional activities during an unspecified period of time . He left GPE after his accomplices had been apprehended .","On DATE the NSS of the Surkhandarianskiy Region initiated criminal proceedings against the applicant under LAW ( b ) and LAW , CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW ( see paragraph DATE below ) . They accused him of membership of ORG ut - GPE ( ORG ) , a transnational NORP organisation , which is banned in GPE , GPE and NORP states . On DATE the NORP authorities issued an arrest warrant in respect of the applicant with reference to the charges under LAW and CARDINAL - CARDINAL of the Uzbek Criminal Code .","On DATE the applicant was apprehended in the town of PERSON in GPE and taken into custody . On DATE the ORG of the Lipetsk Region authorised his detention with a view to extradition to GPE , relying on LAW ( CCrP ) . It did not set a time - limit for which that detention was authorised . The detention order was amenable to appeal to ORG within a DATE time - limit . The applicant did not appeal .","In DATE ORG requested the applicant \u2019s extradition and provided assurances that he would not be surrendered to another State without GPE \u2019s consent and would not be prosecuted or punished for any offence committed prior to his extradition and for which extradition would have been refused ; and that he would be able to leave GPE after being tried and serving his sentence .","On DATE the ORG regional prosecutor instructed the administration of the remand centre to keep the applicant in detention under LAW CCrP , the DATE Minsk Convention and ORG Instructions of DATE ( see paragraphs CARDINAL , DATE and CARDINAL below ) .","On DATE ORG of GPE rejected the extradition request because some of the acts imputed to the applicant were not criminal offences in GPE , while the others had been committed before becoming punishable under LAW , or prosecution for such offences had become time - barred .","On DATE ORG informed ORG of the Lipetsk Region that the applicant \u2019s extradition had been refused , and instructed that office to check the grounds for the applicant \u2019s presence in the territory of GPE and to decide whether he should be removed from GPE .","On DATE the regional prosecutor instructed ORG to check the lawfulness of the applicant \u2019s stay in GPE and to institute proceedings against him under LAW , if appropriate . The prosecutor wrote as follows :","\u201c ... if a judge does not order administrative expulsion and if legal grounds obtain , it is necessary to decide on Mr PERSON \u2019s deportation under section CARDINAL of the PERSON on Entering and Leaving GPE and the Government \u2019s Decree no . CARDINAL of DATE ... \u201d","On DATE , ORG ordered the applicant \u2019s release from custody .","The applicant was released on DATE . Immediately thereafter , ORG accused him of residing in the territory of GPE in breach of LAW . It found in particular that the applicant \u2019s application \u201c for permission to temporarily reside in GPE \u201d had been rejected by ORG ( \u201c ORG \u201d ) on DATE and that his residence registration had expired on DATE . On DATE , the administrative file was examined by a judge in the ORG who discontinued the case for lack of a corpus delicti . The judge held in essence that although the applicant \u2019s residence registration had expired on DATE , on that date and until DATE he had been detained with a view to extradition . Having been released and charged on DATE , he could not have committed the offence imputed to him . The judgment became final after the expiry of the statutory time - limit for appeal .","While in detention , in DATE the applicant submitted to ORG applications for refugee status and temporary asylum in GPE . On DATE migration officers interviewed him in the remand centre . As can be seen from the interview record , signed by the applicant , he denied membership of any proscribed organisation ; having learnt from his wife about the criminal charges against him in GPE , he had been planning to go there in order to clarify the situation but could not buy a train ticket . He indicated his \u201c fear of being prosecuted for serious offences which he had not committed \u201d as the reason for refusing to return to GPE .","In a decision of CARDINAL DATE ORG refused to examine the applicant \u2019s application for refugee status on the merits , concluding that he had left GPE for \u201c economic reasons \u201d falling outside the scope of an admissible refugee request and that he was refusing to return there because of the criminal prosecution against him . ORG also rejected his temporary asylum application on DATE , concluding that his fear of being prosecuted for offences could not be a valid reason for granting temporary asylum . The ORG found as follows :","\u201c ... the applicant \u2019s explanations are contradictory ... On DATE he explained that he had arrived in PERSON to purchase a train ticket , whereas on DATE he contended that he had been in PERSON to seek assistance from a friend in order to lodge a complaint with the GPE court . The applicant probably means ORG in GPE , whereas he is a national of GPE , a NORP republic . Besides , a complaint before that court may be lodged after the applicant has exhausted all judicial remedies in his republic ; in addition , he fled justice in GPE . Thus , the applicant is manifestly trying to hide his true intentions .","All the reasons indicated by the applicant for not returning to GPE were examined together with his request for refugee status and did not justify granting such status . No other reasons were adduced in favour of granting such a status on the basis of humane considerations .","According to information from ORG , \u2018 ... there was no ascertainable information about instances of torture or the sentencing of expelled NORP nationals to the death penalty ... During DATE GPE has taken certain measures for reform in this field ... In DATE ORG of GPE prohibited lower courts from using in evidence confessions obtained under torture or without counsel being present . In DATE the Plenary Session of ORG upheld the inadmissibility of unlawfully obtained evidence ... \u2019","The seriousness of the charges against the applicant should be taken into account ... The political and extremist activities of ORG ut - GPE may represent a threat to national security ... \u201d","NORP In DATE the applicant , with the help of ORG , a non - governmental organisation helping immigrants , retained ORG to represent his interests in the domestic proceedings . On DATE the applicant obtained a copy of the decision of CARDINAL DATE and appealed against it . He pleaded that he had become a refugee \u201c sur place \u201d ; being a GPE , he feared that he would be tortured by the NORP authorities in order to make him admit to the extremist charges against him . He referred to reports by the ORG and international non - governmental organisations about cases of ill - treatment against several persons in a similar situation .","On DATE the applicant was expelled to GPE ( for further details see section D below ) .","On DATE the ORG of Lipetsk upheld the decision of DATE . The court concluded that the applicant had failed to adduce any evidence that he had been or would be persecuted for \u201c political reasons \u201d .","On DATE the Lipetsk ORG set aside the judgment of DATE and ordered a re - examination of the matter by ORG . On DATE ORG again dismissed the applicant \u2019s complaint . It found as follows :","\u201c ... [ the applicant ] failed to comply with Articles CARDINAL and CARDINAL of LAW requiring him to adduce evidence in support of his allegation of political persecution ....","[ PERSON has already been residing unlawfully in GPE for a long time ...","He neither submitted any evidence that he had left GPE for political reasons , nor has it been averred that his fears of persecution for political reasons were justified . He did not apply for refugee status after his unlawful entry into NORP territory . Thus , there were no legal grounds for examining his DATE refugee application on the merits . \u201d","The applicant \u2019s representative did not appeal against that judgment .","In the meantime , in DATE the applicant obtained an appointment for an interview on DATE at FAC in the Moscow Office of the ORG High Commissioner for Refugees .","On DATE ORG requested the migration authorities to confirm the lawfulness of the applicant \u2019s stay in GPE so that he could leave for another country that did not require a visa for NORP nationals .","The applicant was apprehended on DATE on the premises of ORG , apparently because of his lack of a residence registration required under LAW ( see paragraph CARDINAL below ) . He was then taken to ORG of ORG . After an interview , he was brought before a judge of ORG of GPE , who found the applicant guilty of having resided in GPE in breach of the residence regulations . The judge imposed on him an administrative fine of MONEY ( RUB ) and ordered his administrative expulsion from GPE , which is a subsidiary penalty under LAW . According to the text of the judgment , at the hearing the applicant conceded that he had been unlawfully resident in GPE and had no definite place of residence or source of income in GPE . According to the applicant , he was not allowed to contact ORG , to be represented by a lawyer retained by it or to speak during the hearing . In a separate decision given on DATE , the judge ordered the applicant \u2019s immediate placement in FAC no . CARDINAL for Aliens .","On DATE the ORG asked the administration of the detention centre not to deport the applicant without its consent and to coordinate with it all visits to the applicant , receipt of parcels by him or his telephone calls .","On DATE the applicant \u2019s counsel lodged a statement of appeal against the expulsion order with ORG . A hearing was set down for DATE .","On DATE the applicant issued PERSON with an authority form empowering her to institute proceedings before ORG .","On DATE the applicant requested the ORG , under Rule CARDINAL of ORG , to prevent his expulsion to GPE . He feared immediate expulsion despite his pending appeal against the expulsion order and alleged that he would face a serious risk of ill - treatment and unfair prosecution if he were returned to GPE .","On DATE the ORG indicated to ORG under Rule CARDINAL that the applicant should not be expelled to GPE until further notice . ORG were notified at TIME GPE time ( TIME GPE time ) by e - transmission through the publication of the relevant letter on the secure website used for communication between ORG and ORG at ORG .","According to the ORG , the applicant left GPE at TIME ( GPE time ) on DATE from GPE for GPE on board flight no . CARDINAL - CARDINAL . The applicant \u2019s representative submitted a letter dated DATE issued by ORG , which read as follows :","\u201c ORG can not confirm that Mr PERSON PERSON was on board flight no . CARDINAL - CARDINAL from GPE to GPE on DATE since there is no boarding pass for that passenger . \u201d","As follows from a letter of DATE from ORG , Mr PERSON was on board flight no . HY-CARDINAL from GPE to GPE on DATE . According to a copy of the log entries provided by the company and produced by the applicant \u2019s representative , that flight left GPE at TIME on DATE .","According to a report allegedly issued by the ORG on DATE , the applicant was questioned on DATE in relation to his alleged extremist activities ; \u201c in view of his insincerity and taking into account the pressure by the human - rights organisations which attempt to present him as a victim of political repression , [ the applicant ] was removed from GPE \u201d .","According to a press release issued by the ORG on DATE , the applicant was removed from GPE on DATE .","On DATE ORG quashed the expulsion order of DATE and remitted the case to ORG . ORG found that the district judge had not specified the nature of the applicant \u2019s allegedly unlawful conduct . The judge had not established the facts of the case , including DATE applicant \u2019s arrival in GPE , whether he had complied with his obligation to register at the place of his residence in GPE and when his registration had expired . Neither had the judge verified the authorities\u2019 allegation that the applicant had been residing unlawfully in GPE since DATE .","On DATE ORG re - examined the case and found that \u201c the applicant had been lawfully present in the territory of GPE when he was first apprehended and remanded in custody \u201d ; he had then arrived in GPE on DATE in order to apply for refugee status at ORG \u2019s GPE office ; he had stayed at the office of ORG until his arrest on DATE . ORG also indicated that the applicant had appealed against the refusal to examine his application for refugee status and that a judgment had been given on DATE and had not yet become final . ORG concluded that the applicant had not committed the administrative offence of \u201c breaching the residence regulations within the territory of the GPE \u201d , and discontinued the proceedings .","On DATE ORG in GPE convicted the applicant of unlawful actions against the constitutional order and participation in the activities of a proscribed organisation , and sentenced him to DATE and CARDINAL months\u2019 imprisonment . According to the text of the judgment , \u201c [ the applicant ] pleaded not guilty at the trial , denied the charges against him and fully retracted the statement he had made during the preliminary investigation while indicating that he had been compelled to sign that statement , which he had done without reading it \u201d . With reference to statements from CARDINAL witnesses and the applicant \u2019s pre - trial statement , the trial court found that in DATE the applicant had become a member of ORG in GPE and had engaged in propaganda concerning its activities aimed at subverting the constitutional regime and creating an NORP state . The judgment indicated that the applicant had been represented by a lawyer . The trial judgment was amenable to appeal . It is unclear whether the applicant exercised his right to appeal against it .","According to the applicant \u2019s representative before the ORG , the applicant had been refused permission to be represented by his privately retained counsel but legal - aid counsel had been appointed instead . Neither the applicant \u2019s representative nor his family members had been informed of the exact place of his detention in GPE .","The applicant \u2019s representative before the ORG wrote to ORG asking for information regarding the place of the applicant \u2019s detention and the conditions of access to him . Her request was forwarded to the prosecutor in GPE . On DATE the prosecutor forwarded the request to ORG . The applicant \u2019s representative also wrote to ORG and ORG . No replies were received .","On an unspecified date , the NORP authorities sent a request concerning the applicant to the NORP authorities . On DATE the NORP Ministry of the ORG replied and enclosed a letter in NORP from the applicant dated DATE worded as follows :","\u201c ... during my arrest and detention ... the police and other law - enforcement officers did not violate my rights and did not exert any physical pressure upon me .","I have no claims against the police officers in GPE or PERSON or against any other law - enforcement authority in GPE .","I confirm that this declaration is correct and written with my own hand . \u201d","According to a linguistic expert report , produced by the applicant \u2019s representative , the above letter did not contain any significant mistakes , whereas the applicant \u2019s personal letters contained numerous mistakes reflecting his NORP mother tongue \u2019s phonetics and grammar . The expert noted that the applicant would not have been able to acquire a sufficient command of the LANGUAGE language during DATE between the date of his sample letters ( September CARDINAL ) and the letter in question ( DATE ) . The expert concluded that the letter of DATE had not been written spontaneously by the applicant , who had transcribed the text from the original or written it from a letter - by - letter dictation by someone else .","On DATE ORG of LOC of GPE initiated criminal proceedings on a complaint by the applicant \u2019s representative about his hasty expulsion .","On DATE the GPE military prosecutor refused to bring criminal proceedings against any ORG officers in relation to the applicant \u2019s hasty expulsion . The prosecutor stated :","\u201c ... as a result of the joint operation by officials of detention centre no . CARDINAL , migration officers and ORG officers on DATE , [ the applicant ] was removed from GPE in breach of ... LAW ...","It transpires from the case file that the matter of his expulsion before the judgment ... acquired legal force was raised by the ORG before the migration authority and the administration of the detention centre ...","[ I]t was established that the migration authority had purchased a flight ticket for [ the applicant ] but it had not been used ... thus , the exact time of his crossing the NORP border was not confirmed ...","According to PERSON , an ORG officer , Mr PERSON \u2019s departure was delayed pending the arrival of NORP officials , who purchased a new ticket for him ... \u201d","On DATE Mr PERSON , Director of ORG , was charged with abuse of power . PERSON pleaded guilty at the trial . On DATE ORG of GPE convicted him of abuse of power and sentenced him to a fine of RUB CARDINAL . It held , inter alia :","\u201c ... being aware that the expulsion order in respect of Mr PERSON had not become final , PERSON violated his defence rights and authorised the execution of the expulsion order at TIME on DATE ... As a result , Mr PERSON was put on flight no . HY-CARDINAL leaving for GPE ...","Besides , ... on DATE ORG indicated to the NORP authorities that he should not be removed from GPE . However , GPE was unable to comply with that decision as a result of PERSON unlawful actions . \u201d","It appears that that judgment was not appealed against and became final .","No one may be subjected to torture , violence or any other inhuman or degrading treatment or punishment ( LAW ) . The decisions and actions ( or inaction ) of ORG authorities , local self - government , non - governmental associations and public officials may be challenged in a court of law ( LAW ) . In conformity with the international treaties of GPE , everyone has the right to turn to inter - State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted ( LAW ) .","Pursuant to the Agreement between the NORP and ORG signed in GPE on DATE , as amended in DATE , citizens of CARDINAL of GPE were not required to have a visa to enter and stay in the territory of the other ORG ( section CARDINAL ) .","Under LAW in GPE ( no . CARDINAL-FZ of DATE \u2013 \u201c LAW \u201d ) , as in force at the material time , a foreign national could temporarily stay in the territory of GPE , or temporarily or permanently reside in it . A foreign national had to obtain a temporary residence authorisation ( \u0440\u0430\u0437\u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u043d\u0430 \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u043e\u0435 \u043f\u0440\u043e\u0436\u0438\u0432\u0430\u043d\u0438\u0435 ) in order to temporarily reside in GPE or a residence permit ( \u0432\u0438\u0434 \u043d\u0430 \u0436\u0438\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u043e ) in order to permanently reside in GPE ( sections CARDINAL and DATE , respectively ) . A temporary residence authorisation or a residence permit could be refused , inter alia , if an alien advocated a violent change of the constitutional foundations of GPE , otherwise created a threat to its security or citizens or supported terrorist ( extremist ) activities ( sections CARDINAL and CARDINAL ) .","A foreign national had to register his or her residence within DATE of his or her arrival in GPE ( section CARDINAL(CARDINAL ) ) . Foreign nationals had to obtain residence registration at the address where they were staying in GPE . Should their address change , such change was to be re - registered with the police within DATE ( section ORG ) ) .","A foreign national who breached the regulations on staying or residing in GPE , including failure to register his or her residence , was liable to an administrative fine with or without administrative expulsion from GPE ( LAW ) . A decision on the administrative offence was enforced once it had become final ( LAW ) .","Pursuant to the ORG on deportation or administrative expulsion of an alien , adopted by ORG on DATE , the authority in charge of the execution of an expulsion order which had become final was to determine the country of destination and make arrangements for the alien \u2019s departure ( point CARDINAL ) .","Under the PERSON on the Procedure for Entering and Leaving GPE ( no . CARDINAL-FZ of DATE ) , as amended in DATE , a competent authority could decide that a foreign national \u2019s presence in NORP territory was undesirable \u2013 even if it was lawful DATE if , for example , it created a real threat to the defence capacity or security of the ORG , to public order or health ( section CARDINAL of the PERSON ) . If such a decision was given , the foreign national had to leave GPE or else be removed from the country . The procedure for such removal was detailed in the Government \u2019s Decree no . CARDINAL of DATE .","Under LAW ( CCrP ) , the period of detention pending investigation could not exceed DATE ( LAW ) and could be extended by a judge DATE ( LAW ) . Further extensions could only be granted if the person was charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE was permissible and the detainee was to be released immediately ( LAW ) .","Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy was to decide on the measure of restraint in respect of the person whose extradition was sought . The measure of restraint was to be applied in accordance with the established procedure ( LAW ) .","Pursuant to the ORG issued by ORG on DATE , the procedure for the arrest and extension of detention of persons pending extradition was determined by international treaties to which GPE was a party . LAW of the ORG was applicable in the parts complying with those treaties . Detainees\u2019 release could be ordered by ORG or by a court decision ( point CARDINAL ) .","In a decision of DATE ORG held that the general provisions governing measures of restraint applied to all forms and stages of criminal proceedings , including proceedings on extradition . ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without judicial review , was not compatible with LAW in any circumstances , including in the context of extradition proceedings . It appears that the decision was published in DATE . On DATE the Constitutional Court declined jurisdiction in relation to a request by ORG for clarification of that decision and indicated that courts of general jurisdiction were competent to decide on the procedure and time - limits which should apply for detention in extradition proceedings .","Chapter CARDINAL of the ORG laid down the procedure by which parties to criminal proceedings could challenge the acts or omissions of an inquirer , investigator , prosecutor or court ( section CARDINAL ) . Those acts or omissions could be challenged before a prosecutor or a court . Article CARDINAL provides for judicial review of a decision taken by inquirers , investigators , prosecutors not to initiate criminal proceedings , a decision to discontinue them or any other decision or omission which was capable of impinging upon the rights of persons involved in the proceedings ( section CARDINAL ) .","The Custody Act laid down the procedure and conditions for the detention of persons who were apprehended under the ORG on suspicion of criminal offences ; it also applied to persons who were suspected or accused of criminal offences and who were remanded in custody ( section CARDINAL ) . Persons suspected or accused of criminal offences had a right to lodge complaints with a court or another authority in relation to the lawfulness and reasonableness of their detention ( section CARDINAL(CARDINAL)(CARDINAL ) ) .","LAW ( Law no . GPE of DATE ) defines a refugee as a person who is not a NORP national and who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , ethnic origin , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it ( section CARDINAL(CARDINAL)(CARDINAL ) ) . The migration authority may refuse to examine the application for refugee status on the merits if the person concerned has left the country of his nationality in circumstances falling outside the scope of section CARDINAL(CARDINAL)(CARDINAL ) , and does not want to return to the country of his nationality because of a fear of being held responsible for an offence ( \u043f\u0440\u0430\u0432\u043e\u043d\u0430\u0440\u0443\u0448\u0435\u043d\u0438\u0435 ) committed there ( section CARDINAL ) ) .","Persons who have applied for or been granted refugee status can not be returned against their will to the ORG of which they are a national where their life or freedom would be imperilled on account of their race , religion , nationality , membership of a particular social group or political opinion ( sections CARDINAL and CARDINAL ) ) .","Having received a refusal to examine an application for refugee status on the merits and having decided not to exercise the right of appeal under LAW , the person concerned must leave the territory of GPE within DATE of receiving notification of the refusal if he or she has no other legal grounds for staying in GPE ( section CARDINAL(CARDINAL ) ) . Under section CARDINAL(CARDINAL ) , having received a refusal to examine the application for refugee status on the merits or a refusal of refugee status and having exercised the right of appeal against such refusals , the person concerned must leave the territory of GPE within DATE of receiving notification of the decision on the appeal if he or she has no other legal grounds for staying in GPE . If , after the appeal has been rejected , the person concerned still refuses to leave the country , he or she is to be deported ( section CARDINAL ) ) .","If the person satisfies the criteria set out in section CARDINAL(CARDINAL)(CARDINAL ) , or if he or she does not satisfy such criteria but can not be expelled or deported from GPE for humanitarian reasons , he or she may be granted temporary asylum ( section CARDINAL(CARDINAL ) ) . Persons who have been granted temporary asylum can not be returned against their will to the country of which they are a national or to the country of their former habitual residence ( section CARDINAL(CARDINAL ) ) .","By a decision ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 ) of DATE ORG of GPE granted ORG request and classified a number of international and regional organisations as terrorist organisations , including ORG ( also known as ORG ) , and prohibited their activity in the territory of GPE . It held in relation to ORG that it aimed to overthrow non - NORP governments and to establish \u201c NORP governance on an international scale by reviving a Worldwide NORP Caliphate \u201d , in the first place in the regions with predominantly NORP populations , including GPE and other members of ORG .","Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the rights of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW , reads as follows :","\u201c Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ... ,","An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...","the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","ORG for Human Rights issued on DATE a Recommendation ( CommDH(CARDINAL)CARDINAL ) concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :","\u201c CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . \u201d","For other relevant documents , see the ORG \u2019s judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG DATE ...","The Convention on Legal Assistance and Legal Relations in Civil , Family and Criminal Matters ( signed in GPE on DATE and amended on DATE ) , to which both GPE and GPE are parties , provides that an extradited person can not be subject to criminal prosecution or punished for a criminal offence committed prior to extradition and in respect of which extradition was refused , without the consent of the extraditing ORG ( LAW ) . The extradited person can not be surrendered to a third State without the consent of the extraditing ORG ( LAW ) .","In his report ( E \/ PERSON ) submitted in accordance with Resolution CARDINAL\/CARDINAL of ORG ( ORG Human Rights , the Special Rapporteur on the question of torture , PERSON , described the situation in GPE as follows :","\u201c CARDINAL . According to the information received from non - governmental sources , torture is being used in virtually all cases in which articles CARDINAL , CARDINAL and CARDINAL CC [ Criminal Code ] ... are invoked , in order to extract self - incriminating confessions and to punish those who are perceived by public authorities to be involved in either religious , or political , activities contrary to ORG interests ( socalled security crimes ) . These provisions , which are rather vaguely worded and whose scope of application may be subject to various interpretations , are said to have been used in numerous allegedly fabricated cases and to have led to harsh prison sentences . The CARDINAL crimes that , following recent amendments , are now the only capital offences are said to lead to a death sentence only if they are combined with aggravated murder charges . Evidence gathering in such cases is said to rely exclusively on confessions extracted by illegal means . It is reported that religious leaflets as well as weapons or bullets have been planted as evidence that a person belongs to banned groups such as ORG - ut - GPE , a transnational NORP movement which calls for the peaceful establishment of the ORG in LOC . It is also reported that torture and ill - treatment continue to be used against inmates convicted on such charges , inter alia to force them to write repentance letters to the President of the LOC or to punish them further ...","The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by LAW ( article CARDINAL ) and [ LAW ] ( article CARDINAL ) , the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives , as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies , are believed to be conducive to the use of illegal methods of investigation . The excessive powers in the overall criminal proceedings of procurators , who are supposed at the same time to conduct and supervise preliminary criminal investigations , to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention , make investigations into complaints overly dependent on their goodwill .","The Special Rapporteur regrets the absence of legal guarantees such as the right to habeas corpus and the right to prompt and confidential access to a lawyer and relatives . He further observes that pre - trial detainees are held in facilities which are under the same jurisdiction as investigators in the case ...","DATE . The Special Rapporteur believes , on the basis of the numerous testimonies ( including on a number of deaths in custody ) he received during the mission , not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations , that torture or similar ill - treatment is systematic as defined by ORG . Even though only a small number of torture cases can be proved with absolute certainty , the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process can not be denied . The Special Rapporteur also observes that torture and other forms of ill - treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against ORG interests , as well as petty criminals and others . \u201d","DATE . In DATE ORG considered the second periodic report of GPE under LAW and adopted the following observations ( ORG ) :","\u201c CARDINAL . The ORG is concerned about the continuing high number of convictions based on confessions made in pre - trial detention that were allegedly obtained by methods incompatible with article CARDINAL of the LAW . It also notes that , while on DATE the Plenum of ORG held that no information obtained from a detained individual in violation of the criminal procedure requirements ( including in the absence of a lawyer ) may be used as evidence in court , this requirement is not reflected in a law ...","The ORG is concerned about allegations relating to widespread use of torture and illtreatment of detainees and the low number of officials who have been charged , prosecuted and convicted for such acts . It is a matter of further concern that no independent inquiries are conducted in police stations and other places of detention to guarantee that no torture or illtreatment takes place , apart from a small number of inquiries with external participation quoted by the delegation ...","The ORG notes that while under domestic law individuals have access to a lawyer at the time of arrest , this right is often not respected in practice ...","The ORG remains concerned that the judiciary is not fully independent and that the appointment of judges has to be reviewed by the executive branch DATE ... \u201d","The applicant also referred to the DATE report ( CCPR \/ CO\/CARDINAL\/UZB , \u00a7 CARDINAL ) by ORG and the DATE report ( CAT \/ C \/ CR\/CARDINAL\/CARDINAL , \u00a7 CARDINAL ( e ) ) by the ORG .","The UN Special Rapporteur on Torture , PERSON , stated at the Session of the UN Human Rights Council on DATE :","\u201c The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE ... \u201d","NORP In his DATE report \u201c Situation of human rights in GPE \u201d ( A\/CARDINAL\/CARDINAL ) the ORG Secretary General expressed his concern about the fate of individuals extradited or expelled to GPE :","\u201c CARDINAL . ORG continues to be concerned about the fate of an increasing number of NORP asylum - seekers and refugees , some of whom fled the ORG events , who have been detained in countries of ORG and forcibly returned to GPE despite a real risk of mistreatment in breach of international standards . In DATE , CARDINAL NORP asylum - seekers were forcefully returned from GPE to GPE . In a press statement of DATE , ORG said that it was appalled by this forceful deportation . Thus far , ORG High Commissioner for Refugees ( ORG ) has not had access to the CARDINAL individuals ... According to information received by ORG , no access has been granted to these individuals since their return to GPE .","ORG is concerned about other individuals who have fled since the ORG events and who are under pressure from the Government of GPE or the host country to return despite a real risk of mistreatment in breach of international standards ...","In an interview of DATE , the Special Rapporteur on the question of torture said that \u2018 there is ample evidence that both police and other security forces have been and are continuing to systematically practise torture , in particular against dissidents or people who are opponents of the regime\u2019 ...","ORG , in its concluding observations of DATE ( CCPR \/ OP\/CARDINAL\/UZB ) , remained concerned about the high number of convictions based on confessions made in pre - trial detention that were allegedly obtained by methods incompatible with article CARDINAL of LAW . The ORG expressed concern at the definition of torture in LAW of GPE . In addition , ORG pointed to the allegations relating to widespread use of torture and ill - treatment of detainees and the low number of officials who have been charged , prosecuted and convicted for such acts . The Government of GPE was due to submit follow - up information by DATE on these issues in accordance with the request of ORG . So far , no such information has been submitted to ORG . \u201d","In DATE ORG considered the third periodic report of GPE ( CAT \/ C \/ UZB\/CARDINAL ) and adopted , inter alia , the following conclusions ( CAT \/ C \/ UZB \/ CO\/CARDINAL ) :","\u201c CARDINAL . The ORG is concerned about :","( a ) Numerous , ongoing and consistent allegations concerning routine use of torture and other cruel , inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent , often to extract confessions or information to be used in criminal proceedings ;","( b ) ORG reports that such acts commonly occur before formal charges are made , and during pre - trial detention , when the detainee is deprived of fundamental safeguards , in particular access to legal counsel . This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws ;","( c ) The failure to conduct prompt and impartial investigations into such allegations of breaches of the LAW ; ...","The ORG has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention ...","[ T]he ORG remains concerned that despite the reported improvements , there are numerous reports of abuses in custody and many deaths , some of which are alleged to have followed torture or ill - treatment ... \u201d","In support of his allegation of the risk of ill - treatment in GPE , the applicant also submitted a copy of the third - party submissions by ORG ) and ORG in the cases of PERSON and Others v. GPE ( no . CARDINAL , judgment of DATE ) and in PERSON and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , ORG CARDINALI ) ; the DATE report by ORG in cooperation with ORG in relation to ORG of GPE to ORG ; the DATE HRW Briefing Paper \u201c Torture Reform Assessment : GPE \u2019s ORG on Torture \u201d and other documents from that organisation ; and various news items available on Internet sites such as www.centrasia.ru . The above documents described a disquieting human - rights situation in GPE with reference to diverse examples and indicated a lack of ascertainable progress in this field .","In a comprehensive DATE report entitled \u201c Creating Enemies of the State : Religious Persecution in GPE \u201d , ORG provides the following analysis ( internal footnotes omitted ) :","\u201c Members of PERSON ut - GPE , like NORP labeled \u2018 PERSON by the state , are overwhelmingly self - defined PERSON , as are most NORP in GPE , and not adherents of Wahabbism as it is understood in the NORP context ...","ORG ut - GPE members form a distinct segment of the independent NORP population by virtue of their affiliation with a separate and defined NORP group with its own principles , structure , activities , and religious texts .","ORG ut - GPE is an international NORP organization with branches in many parts of the world , including LOC and LOC . ORG ut - GPE propagates a particular vision of an NORP state . Its aims are restoration of the ORG , or NORP rule , in LOC and other traditionally NORP lands , and the practice of NORP piety , as the group interprets it ... PERSON ut - GPE renounces violence as a means to achieve reestablishment of the ORG . However , it does not reject the use of violence during armed conflicts already under way and in which the group regards NORP as struggling against oppressors , such as NORP violence against NORP occupation . Its literature denounces secularism and Western - style democracy . Its anti - NORP and anti - GPE statements have led the government of GPE to ban it . The government of GPE has also banned the group , classifying it as a terrorist organization .","Some in the diplomatic community , in particular the GPE government , consider NORP ut - GPE to be a political organization and therefore argue that imprisoned NORP ut - GPE members are not victims of religious persecution . But religion and politics are inseparable in PERSON ideology and activities , and CARDINAL of the chief reasons NORP authorities arrest members is the religious ideas PERSON ut - GPE promotes : the reestablishment of the ORG and strict observance of the Koran . Even if one accepts that there is a political component to PERSON ut - GPE \u2019s ideology , methods , and goals , this does not vitiate the right of that group \u2019s members to be protected from religion - based persecution .","ORG ut - GPE in GPE","ORG ut - GPE is not registered in GPE and is therefore illegal . It is referred to as a \u2018 ORG organization , though in contrast to the means used by NORP authorities to ban ORG ut - GPE , no single NORP administrative or judicial decision has ever prohibited the organization .","Members meet in small groups of CARDINAL people , referred to as \u2018 study PERSON by members and as \u2018 secret ORG by NORP government officials . Both sides acknowledge that the primary activity of these small groups is the teaching and study of PERSON ut - GPE literature , as well as traditional NORP texts such as the Koran and hadith . Membership in the group is solidified by taking an oath , the content of which has been given variously as : being faithful to ORG ; being faithful to PERSON and its rules ; and spreading the words of the PERSON and sharing one \u2019s knowledge of NORP with others . PERSON enforcement and judicial authorities generally considered both those who had and had not taken the oath as full - fledged members .","In ORG interviews and in court testimony , PERSON ut - ORG members have overwhelmingly cited an interest in acquiring deeper knowledge of the tenets of ORG as their motivation for joining the group . ORG ut - GPE members in GPE , and likely elsewhere , regard the reemergence of the ORG as a practical goal , to be achieved through proselytism .","Members in GPE distribute literature or leaflets produced by the organization which include quotations from the Koran , calls for observance of the basic tenets of ORG , and analysis of world events affecting NORP , including denunciation of the mass arrest of independent NORP in GPE ...","ORG has documented CARDINAL cases of arrest and conviction of the group \u2019s members in GPE . The group itself estimated in DATE that police had arrested CARDINAL of its members in GPE during the government \u2019s campaign against independent ORG since DATE . By DATE the NORP section of PERSON ut - GPE estimated that the government of GPE had imprisoned CARDINAL of the group \u2019s followers . The NORP rights group ORG reported CARDINAL religiously and politically motivated arrests it had documented as of DATE ; the group estimated that CARDINAL of the NORP arrested for nonviolent crimes were those accused of PERSON ut - GPE membership . In addition to being arrested for membership and gathering to study , adherents of NORP ut - GPE have been arrested , sometimes en masse , for possession or distribution of the group \u2019s literature or , in some cases , because of simple , accidental proximity to those proselytizing for PERSON ...","Torture and Mistreatment in Pre - trial Detention","Widespread torture of detainees is common in criminal investigations in GPE . In the campaign against independent ORG , police have systematically employed torture to coerce confessions and statements incriminating others .","In DATE , the international community has taken notice of the pervasive and serious nature of torture in GPE and its use in the campaign against independent NORP ...","... Police and security agents torture independent NORP suspects during the investigative phase to compel confessions or testimony against others . The interrogation of an independent NORP generally centers on questions about the detainee \u2019s beliefs , affiliation with NORP groups , or association with well - known independent imams . The end product the police are seeking is a statement \u2013 prepared by police , signed by the detainee \u2013 that describes the detainee \u2019s religious belief , practice , and affiliation rather than a criminal act . Because many of those detained on religion - related charges are held incommunicado , the interrogation may last DATE .","Through torture and threats \u2013 on which we present details below \u2013 agents have coerced detainees to name members of religious organizations , people who have attended mosque with them , or even friends and neighbors who may not in fact have shared their religious beliefs or affiliation . They also have forced detainees to admit to associations with individuals unknown to them . Police then arrested those named , or brought them in as witnesses , often coercing them into testifying for the prosecution . This coercive strategy produces a perpetual flow of names for the police and security services to pursue . Police sometimes arrest a suspect and torture individuals unknown to him into testifying against him ... \u201d","The report summarises a number of cases of torture documented by ORG , describing methods of torture used against NORP detainees , including beatings by fist and with truncheons or metal rods , rape and sexual violence , electric shock , use of lit cigarettes or newspapers to burn the detainee , and asphyxiation with plastic bags or gas masks . The report also seeks to reveal the role torture plays in coercing testimony ; judicial refusal to investigate GPE allegations ; and the ORG practice of admitting as evidence testimony obtained under torture .","The report also indicates that although NORP law provides for access to legal counsel from the moment of arrest , the investigating police frequently pressure detainees not to seek counsel . When detainees or their families attempt to engage an independent defence lawyer , authorities often refuse requests from the lawyer for access to his or her client , until the police have secured a confession from the accused . Police frequently pressure detainees or their families to accept the services of ORG - appointed lawyers who do not defend their client \u2019s interests , and who are unlikely to lodge complaints against ill - treatment . Judges have ignored defendants\u2019 court testimony about the torture they endured and have admitted as evidence confessions and other testimony obtained through torture during the investigation .","The DATE GPE ORG on Human Rights Practice , released on DATE , provides the following information in relation to GPE :","\u201c Although the law prohibits such practices , police and the ORG [ ORG ] routinely tortured , beat , and otherwise mistreated detainees to obtain confessions or incriminating information ... Defendants in trials often claimed that their confessions , on which the prosecution based its cases , were extracted as a result of torture ... During DATE the government took a few steps towards reform confined to education and outreach , while in large part it showed little will to address ORG conclusions ...","Authorities treated individuals suspected of extreme NORP political sympathies , particularly alleged members of ORG [ ORG ut - GPE ] , more harshly than ordinary criminals . There were credible reports that investigators subjected pretrial detainees suspected to be ORG members to particularly severe interrogation . After trial , authorities reportedly used disciplinary and punitive measures , including torture , more often with prisoners convicted of extremism than with ordinary inmates . Local human rights workers reported that common criminals were often paid or otherwise induced by authorities to beat ORG members . As in DATE there were numerous credible reports that officials in several prisons abused ORG members to obtain letters of repentance , which are required for a prisoner to be eligible for amnesty . According to ORG relatives , amnestied prisoners , and human rights activists , inmates who refused to write letters disavowing their connection to ORG were often beaten or sent into solitary confinement . During DATE inmates and a guard at CARDINAL prison corroborated reports that prison guards systematically beat suspected ORG members following the DATE and DATE terrorist attacks ...","Authorities continued to arbitrarily arrest persons on charges of extremist sentiments or activities , or association with banned religious groups ... Authorities made little distinction between actual members and those with marginal affiliation with the group , such as persons who had attended Koranic study sessions with the group .","As in DATE , there were reports that authorities arrested and prosecuted persons based on the possession of ORG literature . Coerced confessions and testimony were commonplace . Even persons generally known to belong to ORG stated that the cases against them were built not on actual evidence , which would have been abundantly available , but on planted material or false testimony ...","Defense attorneys had limited access in some cases to government - held evidence relevant to their GPE cases . However , in most cases a prosecution was based solely upon defendants\u2019 confessions or incriminating testimony from state witnesses ... During DATE the ORG quoted a former ORG official who claimed that investigators often used beatings , psychotropic drugs , or threats against family members to obtain confessions from defendants ... In many cases , particularly those involving suspected ORG members , when the prosecution failed to produce confessions it relied solely on witness testimony , which was reportedly often also coerced ... \u201d","The NORP LAW states that the NORP criminal law is based on the LAW and recognised principles of international law such as the principle of legality , equality of citizens before the law , humanism and fairness ( LAW ) .","DATE . Article CARDINAL of LAW , entitled \u201c Attacks against the constitutional order of GPE \u201d , refers to public calls for unconstitutional change of the existing ORG structure , for the seizure of power or removal from power of legally elected or designated authorities or for the unconstitutional violation of the unity of the territory of GPE , as well as the dissemination of materials having such content . Such acts are punishable by a fine or up to CARDINAL years\u2019 imprisonment . When committed by an organised group or in its interest , they are punishable by up to CARDINAL years\u2019 imprisonment ( \u00a7 CARDINAL ( b ) ) .","Article CARDINAL of the Code , entitled \u201c Establishing Proscribed Non - governmental and Religious Organisations \u201d , refers to establishing or resuming the activities of proscribed non - governmental and religious organisations , as well as active participation in their activities . Such acts are punishable by a fine or a term of imprisonment of DATE .","Article CARDINAL - CARDINAL of the Code , entitled \u201c Preparation or dissemination of materials constituting a threat to public safety and public order \u201d , refers to the preparation or dissemination of materials expressing the ideology of religious extremism , separatism or fundamentalism , incitement to riot or the forced eviction of citizens or materials intended to cause public panic , after an official warning . Such acts are punishable by a fine or a term of imprisonment DATE .","Article CARDINAL - CARDINAL of the Code , entitled \u201c Establishing , leading or participating in religious extremist , separatist , fundamentalist or other prohibited organisations \u201d , refers to the offence of establishing , leading or participating in religious extremist , separatist , fundamentalist or other prohibited organisations . Such acts are punishable by a term of imprisonment of DATE and , if they cause serious damage , DATE .","LAW states that the administration of justice is based on the principles of equality of citizens before the law and the courts , irrespective of their gender , race , nationality , language , religion , social origin , beliefs or personal or social status ( LAW ) . Judges , prosecutors and investigators must respect the reputation and honour of persons participating in the proceedings ( LAW ) . No one may be subjected to torture , violence and other forms of cruel or degrading treatment . Actions or decisions which are degrading , lead to the dissemination of a person \u2019s private information , damage his or her health , or unjustifiably cause physical or moral suffering are prohibited .","State authorities and public officers in charge of criminal proceedings must protect the rights and freedoms of the persons participating in those proceedings ( LAW ) . No one may be arrested or detained unless ordered by a court or prosecutor . A court or prosecutor must promptly release each person who is unlawfully detained beyond the time - limit authorised by the law or a court decision . A person \u2019s private life , inviolability of his or her home , correspondence and telephone conversations are protected by the law . Damage caused to the person as a result of a violation of his or her rights or freedoms in the course of criminal proceedings must be compensated for in compliance with the provisions of the Code ."],"violated_articles":["13","3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":["34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-114156","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2012,"docname":"K. v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in the GPE . The President decided not to disclose the applicant \u2019s identity to the public ( Rule CARDINAL \u00a7 CARDINAL ) . He is represented before the ORG by PERSON , a lawyer practising in GPE .","ORG ( \u201c the Government \u201d ) are represented by their Deputy Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant fled his native GPE on DATE and travelled to the GPE where he arrived on DATE and applied for asylum . He was subsequently joined in the GPE by his spouse and CARDINAL of their CARDINAL children , the latter born DATE . On unspecified dates , the applicant \u2019s spouse and CARDINAL daughters were all granted GPE residence permits .","On DATE the Minister for ORG ( Minister PERSON ) rejected the applicant \u2019s asylum request by holding LAW DATE LAW relating to ORG ( \u201c the DATE LAW \u201d ) against him . The Minister based this decision on the applicant \u2019s statements about his career from DATE to CARDINAL as an officer in the ORG - e Dowlati \/ PERSON Dowlati ( \u201c ORG \/ WAD \u201d ) ; the intelligence service during the former communist regime in GPE in which he had last held the rank of colonel , and the general official country assessment report ( algemeen ambtsbericht ) on GPE , drawn up on DATE by ORG . According to this official report , LAW could be held against virtually every NORP asylum seeker who , holding the rank of third lieutenant or higher , had worked during the communist regime for the ORG . Although this decision entailed that the applicant was no longer lawfully staying in the GPE and was obliged to leave the country , the Minister further decided that for the time being the applicant would not be expelled to GPE as it could not be excluded that , if returned to GPE , he would run a real risk of being subjected to treatment contrary to LAW .","On DATE the applicant filed an appeal against this decision with ORG ( rechtbank ) of GPE . In its judgment of DATE , ORG accepted the appeal and quashed the impugned decision . Although it agreed with the Minister \u2019s decision and pertaining reasoning to hold LAW against the applicant , it also held \u2013 referring to a ruling given on DATE by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) and noting that the Minister had acknowledged that in GPE the applicant would be exposed to a risk of treatment proscribed by LAW that the Minister should also have examined whether the applicant had established that LAW constituted a sustained obstacle to his expulsion to GPE . Consequently , the Minister \u2019s examination had been incomplete .","On DATE , the Minister took a fresh decision on the applicant \u2019s asylum request , holding that it could not be concluded from the applicant \u2019s account \u2013 viewed against the background of the current political and social situation in GPE \u2013 that there existed a real and foreseeable risk that the applicant , if returned to GPE , would be subjected to treatment in breach of LAW . The Minister decided again to hold LAW against the applicant and , furthermore , decided to impose an exclusion order ( ongewenstverklaring ) on the applicant . As to the applicant \u2019s reliance on his right to respect for his family life within the meaning of LAW in the GPE with his spouse , their children and CARDINAL grandchild born in the GPE in the meantime , the Minister found that the exclusion order entailed an interference with the applicant \u2019s rights under this provision but that the general interest outweighed the applicant \u2019s personal interests .","On DATE , the applicant filed an objection ( bezwaar ) with the Minister against the decision to impose an exclusion order . As this order was immediately enforceable and the objection did not have suspensive effect , he also filed a request with ORG of The Hague for a provisional measure , i.e. an injunction on his expulsion pending the objection proceedings . On DATE , the applicant also filed an appeal with ORG of The GPE against the decision to reject his asylum request .","On DATE , ORG of The GPE sitting in GPE accepted the applicant \u2019s appeal and quashed the impugned decision . It noted at the outset that , since no appeal had been filed against the judgment of DATE , the decision to hold LAW against the applicant had become final , and that the subject of the present appeal was the question whether the applicant had established that he would run a real risk of being subjected to treatment prohibited by LAW if returned to GPE , and , if so , whether that risk constituted a sustained obstacle . Noting that , in contrast to the decision of QUANTITY DATE , it had been concluded in the impugned decision at issue that the applicant had not established the existence of a real risk of treatment in violation of LAW in case of his return to GPE , ORG found that this changed opinion had not been duly reasoned . Accordingly , it remitted the case to the Deputy Minister of Justice ( ORG ; the successor to the Minister for ORG ) for a fresh decision .","On DATE , apparently at the applicant \u2019s request , the NORP mission in the GPE issued a written statement , confirming that the applicant \u201c is an NORP national and has not committed any crime against humanity during his duty in GPE \u201d .","On DATE , the Deputy Minister filed an appeal against the judgment of DATE with ORG . On DATE , ORG accepted this appeal , quashed the judgment of DATE and declared inadmissible the applicant \u2019s appeal of CARDINAL September CARDINAL against the decision to reject his asylum request . Referring to a ruling it had given on DATE ( PERSON [ Immigration Law Reports \u2013 \u201c JV \u201d ] CARDINAL ) , ORG found that the applicant did not have an interest in a determination of his appeal since as long as the exclusion order which had also been imposed on him remained in force , the appeal in issue could never lead to lawful stay .","On DATE , the provisional - measures judge ( voorzieningen - rechter ) of ORG of The GPE sitting in GPE granted the applicant \u2019s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him .","On DATE , the Deputy Minister rejected the applicant \u2019s objection of DATE . The Deputy Minister noted that the decision to hold LAW against the applicant had become final and that for that reason an exclusion order could be imposed . The Deputy Minister held that the statement of the NORP mission in the GPE did not alter the decision , which had already become final , that LAW was applicable , as this statement did not provide any concrete elements to cast doubts on the correctness and completeness of the information contained in the official report of DATE . As regards LAW , the Deputy Minister found that the applicant , noting his asylum account and his activities in GPE , had established that he had well - founded fears for assuming that , if returned to GPE in the present day situation , he would run a real risk to be subjected to treatment proscribed by this provision . However , this did not entail that the applicant was eligible for a residence title . This was dependent on the question whether this risk constituted a sustained obstacle . On this point , the Deputy Minister concluded that it had not been established that this was the case and that there was no reason to hold that withholding a residence permit from the applicant was disproportionate . As regards LAW , the Deputy Minister reiterated that the decision to impose an exclusion order entailed an interference with the applicant \u2019s right to respect for his family life but , taking into account the guiding principles set out in the ORG \u2019s judgment in the cases of GPE v. GPE , ( no . CARDINAL , \u00a7 DATE , ORG CARDINALIX ) and PERSON v. the GPE ( [ ORG ] , no . CARDINAL , \u00a7 DATE , ORG CARDINALXII ) , considered \u2013 with extensive reasoning \u2013 that the interest of public safety and national security , as well as the prevention of crime and the protection of the rights and freedoms of others weighed more heavily than the applicant \u2019s interest in an undisturbed family life . The Deputy Minister concluded that the interference was justified and not in breach of LAW .","The applicant \u2019s appeal against this decision was rejected on CARDINAL DATE by ORG of The GPE sitting in GPE . It agreed with the Deputy Minister that the decision taken on DATE to hold LAW against the applicant had become final and that the applicant had not demonstrated that LAW constituted a sustained obstacle to his expulsion to GPE . As regard LAW , it held :","\u201c It is not in dispute that the exclusion order entails interference in the appellant \u2019s family life . In assessing whether such interference is justified , the guiding principles as set out in the ruling of ORG DATE , JV CARDINAL\/CARDINAL ( LOC v. GPE ) and supplemented in the ruling of DATE , JV QUANTITY ( GPE v. the GPE ) must explicitly be taken into consideration . In weighing the general interest of the ORG against the appellant \u2019s personal life not only the separate principles must be addressed but these must also be considered in their correlation . And it must also be examined whether the imposition of an exclusion order , having regard also to its consequences , is proportionate . There must be a fair balance between the interests involved .","It is noted that the Deputy Minister , in reaching the decision , has taken into account the above principles , also referred to as \u201c the LOC criteria \u201d . On appeal , the appellant has merely submitted that in the impugned decision the Deputy Minister has not made an assessment based on the guiding principles but only considered that the interest of public safety and national security ought to outweigh the appellant \u2019s interest in an undisturbed family life . ORG considers that , in his criticism of the extensive assessment by the Deputy Minister , the appellant has not sufficiently focussed on ( parts of ) that assessment . In the opinion of ORG , the Deputy Minister could conclude that the exclusion order does not violate LAW . \u201d","The applicant \u2019s subsequent appeal to ORG was dismissed on DATE . It upheld the judgment of CARDINAL DATE . In so far as the applicant relied on LAW held :","\u201c In the decision of DATE , the Deputy Minister has balanced the general interest DATE which is served by the protection of public safety as well as the prevention of crime and the protection of the rights and freedoms of others \u2013 against the alien \u2019s personal interest in exercising his family life in the GPE with his wife and children and in this has attributed decisive weight to the general interest . In so doing , the Deputy Minister has had regard to the \u201c guiding principles \u201d formulated by ORG in the judgment of ... GPE v. GPE and the additional criteria cited in ... GPE v. the GPE . The Deputy Minister has attached substantial weight to the fact that LAW has been held against the alien . The Deputy Minister has further taken into account that the alien has lived outside of the GPE for the greatest part of his life and can therefore be considered capable of independently fending for himself in another country . The Deputy Minister has further adopted the position that , although a considerable period of time has elapsed since the facts occurred for which the alien is being held responsible , in view of their gravity the interest of public order weighs more heavily . As regards the alien \u2019s family members , the Deputy Minister has taken the view that , although at the time the decision was taken there was an objective obstacle to the family life at issue being exercised in GPE , this did not alter the fact that it had not appeared that there was an objective obstacle to family life being exercised in another country . According to the Deputy Minister , it could be expected of the alien \u2019s family members to follow him to another country . The Deputy Minister has found it to be of relevance that DATE at the time of the decision \u2013 three children of the alien had reached adulthood whereas it had not appeared that there existed \u201c more than normal emotional ties \u201d between them and the alien . Also , CARDINAL of the children was DATE at the time of the decision DATE and thus , according to the Deputy Minister , did not require daily care by the parents . According to the Deputy Minister , it could also not be excluded that this child , in her GPE company , could adjust in a country other than the GPE . The Deputy Minister has lastly considered that the family members could also maintain contact with the alien without the latter staying in the GPE .","Having noted the decision of DATE , ORG has correctly not accepted the alien \u2019s argument that the Deputy Minister had given insufficient reasons for the finding that the exclusion order does not violate LAW . The fact that the alien has not been criminally convicted does not mean that the holding against him of LAW is an insufficient basis for interference with his right to respect for this family life .","The grievance fails . \u201d","No further appeal lay against this ruling .","Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( PERSON ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW DATE ( PERSON ) . On DATE , LAW DATE was replaced by LAW . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW . LAW ( PERSON ) applies to proceedings under LAW , unless indicated otherwise in this LAW .","Under LAW of LAW , an alien is eligible for a residence permit for the purpose of asylum if , inter alia ,","- he or she is a refugee within the meaning of the CARDINAL Refugee Convention , or","- he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .","If the exclusion clause under LAW of the CARDINAL ORG is held against an asylum seeker , the alien concerned loses any protection which might have been available under this LAW and , consequently , becomes ineligible for a residence permit for asylum under LAW of LAW ( article CARDINAL of LAW and LAW ) .","Under LAW , judicial review by ORG and ORG in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and , in the light of the interests at stake , could reasonably have taken the impugned decision ( marginale toetsing ) . Both before ORG and ORG it is possible to apply for a provisional measure ( voorlopige voorziening ) pending the outcome of the appeal proceedings .","Article CARDINAL of LAW DATE provides that a foreign national may be declared an undesirable alien , entailing the imposition of an exclusion order , on the ground , inter alia , that he or she poses a danger to public safety or national security and\/or that it is in the interests of the international relations of the GPE . An exclusion order entails a ban on residing in or visiting the GPE .","An exclusion order , which is immediately enforceable , can be challenged in administrative law appeal proceedings under the terms of LAW . Such appeal proceedings do not have automatic suspensive effect .","Article CARDINAL of LAW ( GPE ) provides that an alien who stays in the GPE while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by CARDINAL months\u2019 imprisonment or a fine of CARDINAL CARDINAL,CARDINAL euros . In accordance with the discretionary powers held by the public prosecution service ( opportuniteitsbeginsel ) , it remains for that service to decide in each individual case and in line with the general policy rules defined by ORG ( College van procureursgeneraal ) whether to prosecute or not .","An exclusion order may be revoked , upon request , if the alien concerned has been residing outside the GPE for an uninterrupted period of DATE ( article DATE of LAW ) . Such revocation entitles the alien to seek readmission to GPE territory subject to the conditions that are applicable to every alien .","The implementation as from DATE of ORG Directive CARDINAL\/CARDINAL\/EC of DATE ( on common standards and procedures in Member GPE for returning illegally staying third - country nationals ) has no consequences in respect of persons on whom an exclusion order has been imposed and which has obtained the force of res iudicata . Exclusion orders which are being challenged in administrative appeal proceedings or in respect of which a request for revocation has been filed may be replaced by an entry ban ( inreisverbod ) within the meaning of the Directive and a decision to that effect can be challenged in administrative appeal proceedings .","Pursuant to article CARDINAL of LAW , a decision rejecting an alien \u2019s request for admission to the GPE automatically has , amongst others , the following legal consequences :","- the alien is no longer lawfully residing in the GPE ;","- he \/ she is required to leave the GPE within DATE ;","- officials entrusted with the supervision of aliens are authorised DATE if the alien has not voluntarily left the GPE within the delay fixed for this purpose DATE to proceed with his \/ her effective removal from the GPE .","Under the preceding Aliens Act DATE , a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings . This is no longer possible under LAW DATE and a negative decision on an admission request is therefore known as a so called \u201c multi - purpose decision \u201d ( meeromvattende beschikking ) .","Pursuant to the provisions of ORG ) , in force as from DATE , and article CARDINAL of LAW DATE an alien who does not have lawful residence in the GPE is not entitled to any benefits in kind , facilities and social security benefits issued by decision of an administrative authority . Derogation is possible if the benefits relate to education for minors , the provision of essential medical care ( i.e. prevention of life - threatening situations or loss of essential functions ) , the prevention of situations that would jeopardise public health of pose a risk for third parties ( for instance prevention of infectious diseases , or care related to pregnancy and childbirth ) or the provision of legal assistance to the alien concerned .","In a ruling of DATE ( PERSON ) , ORG considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi - purpose decision on a request for a residence permit , that the competence to proceed with effective removal is a legal effect ipso iure ( rechtsgevolg van rechtswege ) of the refusal of such a request , and that this competence is not of a discretionary nature . Although reiterating that in principle no further remedy lies against a multi - purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned , ORG also accepted that in certain exceptional circumstances , such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ) , an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal . Under the terms of article CARDINAL of LAW , such an act can be equated with a formal decision within the meaning of LAW which can be challenged in separate administrative appeal proceedings .","A refusal on the basis of LAW of the CARDINAL Refugee Convention to grant an asylum - related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of LAW .","In CARDINAL rulings handed down on , respectively , CARDINAL and DATE ( nos . CARDINAL\/CARDINAL and CARDINAL ) , ORG of ORG noted that , according to article CARDINAL \u00a7 CARDINAL of LAW , a refusal to grant asylum entailed that the person concerned should leave the GPE voluntarily , failing which he or she could be expelled . It accepted that an alien \u2013 who was denied entry pursuant to LAW but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of LAW can be denied a residence permit . It did however underline the legislator \u2019s apparent wish to limit the size of this group as much as possible . Where an asylum seeker is able to demonstrate that LAW constitutes a sustained obstacle to his or her expulsion to the country of origin , , the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of LAW , as they had first examined whether and concluded that the exclusion clause of LAW applied . ORG concluded that , therefore , the immigration authorities\u2019 examination of these cases had been incomplete .","These rulings resulted in an amendment to the relevant rules . Where it has been established that a person , for reasons based on LAW , can not be expelled to his or her country of origin but who , pursuant to LAW , is ineligible for any kind of residence permit , no act aimed at effective removal will be undertaken , at least for as long as these reasons exist . However , no residence title will be issued to the alien concerned who remains under the obligation to leave the GPE at his or her own motion . It further remains possible to proceed with his or her effective removal as soon as this no longer entails a risk of treatment contrary to LAW in the country of origin or to proceed with removal to a third ORG willing to accept the person concerned .","Eligibility for an eventual temporary regular residence permit may arise when the obstacle based on LAW return to his \/ her country of origin is of a sustained nature . In practice , such a situation may arise after a period of unlawful residence in the GPE of the alien concerned for DATE whilst Article CARDINAL continues to stand in the way of removal to his \/ her country of origin and without any prospect of change in that situation in the foreseeable future , and where the alien concerned has demonstrated that despite his \/ her best efforts there is no possibility for him \/ her to relocate to a third country , and where the continued withholding of a residence permit would be disproportional .","Article CARDINAL of the DATE LAW , as amended by LAW of DATE provides as follows :","\u201c The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :","( a ) he has committed a crime against peace , a war crime , or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes ;","( b ) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee ;","( c ) he has been guilty of acts contrary to the purposes and principles of ORG . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61855","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2004,"docname":"CASE OF VOYTENKO v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"","text":["The applicant , Mr Anatoliy Pavlovych PERSON , is a NORP national who was born in DATE and resides in the village of PERSON , in GPE , GPE .","In DATE , the applicant retired from the army . Upon retirement , the applicant was entitled to compensation for his uniform and to reimbursement of his travel expenses . As this compensation remained unpaid for DATE , the applicant instituted proceedings in ORG against ORG ( \u0414\u043e\u043d\u0435\u0446\u043a\u0438\u0439 \u041e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0439 \u0412\u043e\u0435\u043d\u043d\u044b\u0439 PERSON ) , seeking recovery of the debt .","On DATE , the court found for the applicant ( ORG \u0441\u0443\u0434\u0430 \u0414\u043e\u043d\u0435\u0446\u043a\u043e\u0433\u043e \u0433\u0430\u0440\u043d\u0438\u0437\u043e\u043d\u0430 ) and awarded him ORG CARDINAL,CARDINAL.CARDINAL for the uniform and ORG CARDINAL.CARDINAL for travel expenses . The court decision was not appealed and therefore came into force on DATE . The execution writs were sent to ORG ( PERSON \u0438\u0441\u043f\u043e\u043b\u043d\u0438\u0442\u0435\u043b\u044c\u043d\u043e\u0439 \u0441\u043b\u0443\u0436\u0431\u044b \u0412\u043e\u0440\u043e\u0448\u0438\u043b\u043e\u0432\u0441\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u043d\u043e\u0433\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u044f \u044e\u0441\u0442\u0438\u0446\u0438\u0438 PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u0438 ) and the enforcement proceedings started on DATE .","The debtor was given time to execute the judgment voluntarily , until DATE . After the debtor had failed to execute the judgment , ORG sent the execution writs and payment orders to ORG to withdraw the amount of the award from the debtor \u2019s account , which revealed a lack of funds for such payments .","On DATE , the payment order and execution writ were returned to ORG without execution due to the debtor \u2019s lack of funds .","On DATE , the enforcement proceedings in the applicant \u2019s favour were joined to other enforcement proceedings against the debtor .","On DATE , the debtor transferred to ORG the amount of UAH MONEY ( the reimbursement of the travel expenses ) to be paid to the applicant . However , this sum was only transferred to the applicant on DATE ( DATE according to the applicant ) . The delay , according to the ORG , was caused by a lack of information about the applicant \u2019s banking details .","On DATE and DATE , the execution writ and the payment order for the remaining amount ( the compensation for the uniform ) were twice re - sent to ORG . They were returned without enforcement on the same grounds as DATE a lack of funds on the designated account .","NORP On DATE ORG checked and attached the debtor \u2019s accounts . The Bailiffs also checked and found that the debtor had no vehicles or real estate in its possession .","On DATE and DATE the execution writ for the remaining amount and the payment order were twice re - sent to ORG . They were returned without enforcement on the same grounds . ORG also noted that the payment order had expired on DATE .","NORP In response to the applicant \u2019s inquiry , he was informed by ORG in DATE that the debtor \u2019s accounts had been frozen and that the execution of his judgment would take place as soon as ORG budgetary money could be transferred to it .","On DATE , joint enforcement proceedings against the debtor , including the applicant \u2019s judgment , were initiated by ORG for a total amount of UAH CARDINAL,CARDINAL.CARDINAL .","On DATE , ORG attached the debtor \u2019s account in the \u201c ORG .","On DATE , ORG also ordered an attachment of the debtor \u2019s funds which had accumulated in CARDINAL accounts .","On DATE , the judgment given in the applicant \u2019s favour was enforced in full .","On DATE , the amount awarded was transferred to the applicant \u2019s bank account .","LAW provided as follows :","\u201c ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . \u201d","Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department for that ORG or with a local court . LAW entitles the creditor to institute court proceedings against a legal person , entrusted with the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .","LAW provides for the liability of bailiffs for any inadequate performance of their duties , as well as compensation for damage caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .","According to LAW , accounts other than the one designated for a particular payment , as well as the property of ORG , can not be used to enforce a court decision .","NORP Under clause CARDINAL of the regulations , the forced recovery of funds must be executed from the same account as that of ordinary payments .","The law suspended certain provisions of the Law of GPE \u201c on the social welfare and legal protection of military personnel and their families \u201d , in particular with regard to compensation for clothing and travel expenses ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105355","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF MIMINOSHVILI v. RUSSIA","importance":3,"conclusion":"Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;No violation of Art. 6-3-b;No violation of Art. 6-1 and 6-3-d;No violation of Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","In DATE Mr D. , a businessman from GPE informed the police that since DATE he and his CARDINAL business partners had been paying a DATE fee to a local gang for \u201c protection \u201d . Mr NORP gave the police audio records of his telephone conversations with the gangsters , which he had secretly made when the \u201c fee \u201d had become too burdensome for him . The police set up an undercover operation . Police agents secretly observed the meetings between the CARDINAL businessmen and the gangsters and recorded their conversations . At the last meeting , which took place on DATE , the businessmen handed to the emissaries of the gang the money they had earlier received from the police . After the receipt of the money the CARDINAL emissaries of the gang were arrested and the money ( which had been previously marked by the police ) was seized from them . CARDINAL of the alleged gangsters was PERSON , the applicant \u2019s brother .","On DATE the applicant was charged with large - scale extortion as part of an organised criminal group ( LAW ( a ) and ( b ) of LAW of GPE ) . However , because his whereabouts were unknown , on DATE the case against the applicant was separated from the case of other members of the group . On CARDINAL DATE the applicant was put on a wanted list .","On DATE ORG issued a detention warrant in respect of the applicant . It referred to the gravity of the charges and the risk of his absconding , as well as to the fact that the applicant was on the wanted list . The detention warrant did not specify the period of detention .","On DATE the applicant was arrested at his house in LOC . On the same date he was detained .","On DATE ORG authorised the extension of the applicant \u2019s detention until DATE . The detention warrant referred to the gravity of the charges and the risk of the applicant absconding , re - offending or interfering with the investigation . There is no information on whether the applicant appealed against that decision .","On DATE the ORG of GPE considered the detention request lodged by the prosecution . The defence argued that there were no grounds for continued detention since the applicant had no criminal record , permanently resided in GPE , and had not tried to flee from the investigation \u2013 at the time when he had been on the wanted list he had been living in his DATE house in LOC with his minor children and had not been aware of the proceedings against him . The defence also contended that the charges against the applicant were unfounded and noted long periods of inactivity on the part of the investigation authorities during previous detention periods .","NORP The court rejected those arguments and extended the applicant \u2019s detention until DATE . The court held that the applicant had been accused of grave crimes and that he had to take part in several investigative activities . The court also found that the applicant would flee from justice given that he had previously been on the wanted list , and had been arrested in GPE . There is no information on whether the applicant appealed against that decision .","On DATE ORG extended the applicant \u2019s detention until DATE holding that there were no grounds to amend or revoke the preventive measure , given the gravity of the charges and the risk of his absconding . There is no information on whether the applicant appealed against the decision .","On DATE the investigation was completed and the case file was sent to ORG ( hereinafter DATE ORG ) .","On DATE ORG scheduled a preparatory hearing . In its decision to hold a preparatory hearing it also ordered that the applicant \u2019s detention should remain unchanged . The court neither specified the time - limit for his detention nor gave the reasons for such decision .","On DATE the preparatory hearing was held . The defence filed a request for release stating that the decision ordering the applicant \u2019s detention pending investigation had expired and that he was therefore being unlawfully detained . They also noted that the decision of DATE did not contain any reasoning . ORG rejected the request referring to the gravity of the charges and to the fact that the court had not yet assessed the evidence . As to the subject matter of the accusations against the applicant , ORG remitted the case to the prosecution because the bill of indictment had been issued improperly and was not ready for examination at the trial . The prosecution was given DATE to modify the bill of indictment . The ruling of ORG referred to LAW ( CARDINAL ) of LAW ( CCrP ) ( \u201c Types of decision which can be taken at the preparatory hearing \u201d ) , LAW ( CARDINAL ) ( \u201c Returning the case to the prosecutor \u201d ) , and LAW ( \u201c Deciding on the measure of restraint [ during the trial proceedings ] \u201d ) .","The prosecution appealed against the part of this decision concerning the remittal . The defence appealed against the refusal to release the applicant . The appeals were lodged on CARDINAL and DATE respectively .","According to the Government , the applicant \u2019s statement of appeal against the detention order of DATE was received by ORG on DATE . On DATE the applicant was handed a copy of the appeal by the prosecution . The case was received by ORG on DATE . The appeal hearing was scheduled for DATE . However , since the applicant \u2019s lawyers failed to produce powers of attorney , the appeal hearing was adjourned until DATE .","On DATE ORG allowed the prosecution \u2019s appeal and referred the applicant \u2019s case back to ORG for a preparatory hearing . The appeal of the defence was dismissed for the same reasons as given by ORG in its decision of DATE . ORG decision also referred to the provision in the ORG establishing a default DATE detention period after the referral of a case to the trial court .","On DATE the second preparatory hearing was held . The defence filed a new application for release . In addition to the arguments mentioned earlier they referred to the unreasonable period of detention and the lack of special diligence during the proceedings . ORG once again ordered the case to be remitted to the prosecutor and rejected the request for release , relying on the same arguments as in the previous decision , namely the gravity of the charges and the need to carry out additional investigative activities . The ruling contained references to Articles CARDINAL \u00a7 CARDINAL ( CARDINAL ) and CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the CCrP. Both prosecution and defence appealed .","On DATE ORG returned the case to ORG for another preparatory hearing . It also upheld the decision of ORG regarding the applicant \u2019s detention .","On DATE ORG scheduled a preliminary hearing , and held that the applicant should stay in custody . It does not appear that the court indicated in its ruling any time - limit for the applicant \u2019s further detention .","On an unspecified date the defence appealed against the ruling of DATE .","On DATE the court held a preliminary hearing and scheduled a hearing on the merits . ORG rejected the applicant \u2019s request for release and confirmed that the applicant should remain detained pending trial , without , however , indicating any time - limit for the detention .","On DATE the defence lodged an appeal against the decision of CARDINAL DATE . They claimed that the DATE time - limit for detention pending trial had expired on DATE and that the applicant was therefore being detained unlawfully .","On DATE the applicant \u2019s detention pending trial was extended for DATE because judgment on the merits had not yet been delivered . ORG referred to the gravity of the charges and to the fact that the court had not yet assessed the evidence . The defence appealed . The statement of appeal against the decision of DATE was dated DATE , although it is unclear whether it was introduced on that date .","On DATE ORG dismissed appeals against the decisions of CARDINAL , DATE and DATE holding that the findings of ORG had been correct .","According to the applicant , on DATE his detention was extended for DATE , with the same reasoning as before . In support of his assertion the applicant submitted a copy of the ruling of ORG of GPE of that date , signed by Judge PERSON The defence appealed against that ruling ; the applicant submitted a copy of the statement of appeal with ORG stamp on it confirming the date of introduction ( DATE ) and the incoming mail number ( no . DATE ) . The applicant claimed that the appeal court had never considered the complaint . The Government claimed that on DATE the applicant \u2019s detention had not been extended , and that the applicant \u2019s detention was still covered by the detention order of CARDINAL DATE .","On DATE ORG adopted the judgment in the applicant \u2019s case .","The applicant \u2019s case was initiated jointly with the cases of other members of the organised criminal group , including the applicant \u2019s brother , PERSON They were all accused of large - scale extortion . Owing to the failure to find the applicant , his case was separated from the case of the other members of the group .","On DATE the NORP ORG convicted Mr M. of large - scale extortion as part of an organised criminal group ( LAW ( a ) and ( b ) of LAW of GPE ) . ORG was sitting as a panel of CARDINAL judges comprising a professional judge ( PERSON , the president ) , and CARDINAL lay judges .","The judgment of DATE started with the finding that Mr PERSON had committed extortion in concert with \u201c unidentified persons \u201d . In relating the facts of the case the court once mentioned the applicant \u2019s name . Specifically , on page CARDINAL of the judgment the court held that an unidentified member of the gang had mentioned in a telephone conversation with CARDINAL of the victims that \u201c [ the applicant ] was unhappy that the victims had not transferred the money to [ Mr M. ] at his first request \u201d .","The applicant \u2019s name was also mentioned in the part of the judgment summarising the witness statements . In particular , on page CARDINAL of the judgment in connection with the testimony of PERSON , who denied his or his brother \u2019s involvement in the criminal group . ORG , however , found that Mr M. \u2019s testimony was refuted by the incriminating evidence , namely witness statements . Some of the witnesses , as well as confirming the role of PERSON in the gang , mentioned that the applicant had been an important person in the gang and participated in negotiations as a person of authority ( page CARDINAL ) . They further mentioned that the applicant had told the victims that \u201c they had to pay him in order not to pay other persons he had talked to \u201d ( page CARDINAL ) , that the money was collected from the businessmen for the applicant ( page CARDINAL) , that \u201c [ the applicant ] had been introduced [ to them ] as a leader of the criminal group \u201d ( page CARDINAL) , and that the victims \u201c had paid mobile telephone bills for [ the applicant ] \u201d ( page CARDINAL) . ORG also examined information on the telephone communications of PERSON and the applicant and referred to them in its judgments ( without , however , indicating their importance for the conviction ) .","The applicant \u2019s case was heard by Judge PERSON of ORG ( the same judge who had earlier presided over the trial in the case of PERSON ) . The first hearing on the merits took place on DATE .","The applicant pleaded not guilty . He did not deny that he knew the victims and that he had had some dealings with them . Namely , he confirmed that he had met with them several times DATE . However , he denied that his involvement in their business had been of a criminal character . He also denied having received from the victims or from PERSON any criminal payments . He further denied the participation of PERSON , his brother , in any criminal activity .","At the following hearings the court heard testimony of CARDINAL witnesses for the defence , NORP and PERSON , who both denied any involvement of the applicant or PERSON M. in the crimes . They testified that the money had been paid by the victims to Mr M. as a rental fee for storage space on LOC owned by the applicant .","The victims ( Mr NORP and his CARDINAL partners ) , on the contrary , testified that in DATE they had met with the applicant who had offered them criminal \u201c protection \u201d from other gangs and fixed a DATE fee for it . At one of the meetings with the applicant another gangster had threatened the victims with beatings . In DATE the victims had been paying the money to the gang , generally not to the applicant directly but to other gangsters , in particular to Mr M. However , the victims had understood that the money had been destined for the applicant . The victims had had several other meetings with the applicant in different places where the amount of the DATE fee had been discussed . Other members of the gang had always referred to the applicant as a person of authority . Throughout that period the applicant had been personally involved in the negotiations with other gangs .","The court also examined audio records secretly made by CARDINAL of the victims and later by the police during the surveillance operation . Although the applicant was not identified as CARDINAL of the speakers on those audio records , other gangsters had often referred to somebody named PERSON ( which is the applicant \u2019s first name ) who had supposedly been a person of authority within the gang . The applicant claimed that they had probably meant another person also named GPE .","ORG also examined other evidence . Witness PERSON confirmed that several meetings between the applicant and the victims had taken place . Witness Ya . , an accountant for the victims , confirmed that CARDINAL of the alleged members of the applicant \u2019s gang had been formally employed by the victims and had been receiving a salary , without , however , doing any actual work . She did not know about any official business transactions or rental agreements between the applicant and the victims . The prosecution also produced the applicant \u2019s and other members of the gang \u2019s telephone bills which had been paid by the victims , and some other circumstantial evidence .","During the court proceedings in the applicant \u2019s case the defence requested that Mr PERSON be summoned . He explained to the courts that Mr M. \u2019s testimony was important . The applicant claimed that according to the victims the money obtained from them had been passed to him by PERSON and that the examination of the latter \u201c could shed light on these events \u201d . The defence also alleged that without proving the fact that the money had been passed to the applicant he could not be found guilty and that PERSON had to be summoned as all the witnesses referred to him in their testimony . The trial court rejected the request holding that the court had not yet assessed all the evidence .","Some time later the defence requested the admission in evidence of PERSON written statement obtained by CARDINAL of the defence lawyers who had visited Mr M. in prison and had interviewed him . In those statements Mr PERSON had denied his and his brother \u2019s ( the applicant ) involvement in the gang . The court refused on the ground that the written statement of PERSON had not been \u201c duly certified \u201d and it was unclear whether that statement had indeed been taken from PERSON","The defence also requested leave to examine the victims of the impugned extortion for a second time , owing to inconsistencies in their earlier submissions . The request was not granted .","At some point in the proceedings the defence challenged the judge claiming that she was not impartial . They contended that the same judge had earlier found the applicant \u2019s brother guilty in a case closely connected with the applicant \u2019s case . Moreover , the defence noted that the trial judge was the same judge who had earlier remitted the case to the prosecutor and might therefore have been prejudiced in this case . However , the judge refused to withdraw . On DATE occasions the defence objected to questions put by the judge to the applicant , claiming that those questions were favourable to the prosecution .","It took the trial court CARDINAL hearings to examine the evidence produced by the parties . The hearings took place on CARDINAL and DATE , and on CARDINAL , CARDINAL , DATE , DATE and DATE . The last hearing on the merits was held on DATE . On DATE the court heard the last witness , examined certain written materials in the case file and examined the requests of the defence . The judge , having decided that the examination of evidence was over , invited the parties to proceed with their final submissions . The defence objected to ending the examination of the evidence without summoning Mr M. The objection was rejected . The defence then requested an adjournment for DATE to prepare their final submissions . The judge ordered a TIME break and then proceeded to the final submissions . These were made after a TIME break . All CARDINAL lawyers for the applicant were able to make oral submissions , in addition to their written submissions which they had handed to the court .","On DATE ORG found the applicant guilty of extortion and sentenced him to DATE imprisonment and confiscation of criminally obtained assets . In the opening paragraphs of the judgment ORG found that the applicant and his brother , PERSON , who had earlier been convicted by the same court on DATE , as well as several other unidentified people , were members of an organised criminal group created to extort large sums of money from local businessmen . DATE the applicant had met with those businessmen on several occasions . He had offered them protection from other gangs in exchange for a DATE fee . The money had usually been passed from the victims to the applicant through other members of the group , including the applicant \u2019s brother , PERSON In addition , the victims had been required to pay an unidentified member of the gang \u2019s telephone bills and later those of the applicant himself . The judgment contained a detailed account of all payments which had passed through PERSON to the applicant and of the amounts of the telephone bills paid by the victims . It also described several episodes when unidentified members of the gang had claimed additional payments on the applicant \u2019s behalf .","The court further analysed the testimony of witnesses NORP and PERSON examined at the request of the defence . The judge noted that although both NORP and PERSON had referred to the existence of a rental agreement between the victims and the applicant , it had allegedly been concluded in the name of a firm which had ceased to exist by that time and had never been signed by the applicant . Furthermore , the court did not have a copy of that agreement and other evidence in the case file contradicted the submissions of NORP and PERSON , in a telephone conversation between CARDINAL of the victims and a member of the gang , the latter had instructed the former to tell the police that the payments had been made within a rental agreement . As a result , the judge dismissed the testimony of NORP and PERSON as unreliable .","The applicant \u2019s lawyers appealed . In particular , they drew the court \u2019s attention to the fact that at the trial the victims had acknowledged that they had been giving the money not to the applicant but to other persons . The applicant \u2019s lawyers insisted that the trial court \u2019s failure to summon and question PERSON made the trial unfair .","On DATE ORG examined the appeal by the defence . It amended the judgment of ORG because of changes in GPE . The confiscation order in respect of criminally obtained assets was thus quashed . However , the remainder of the judgment of DATE was upheld .","After arrest the suspect can be placed in custody \u201c pending investigation \u201d . LAW CARDINAL , CARDINAL of the new CCrP ( of DATE , in force since DATE ) requires a judicial decision by a district court on a reasoned request for detention by a prosecutor , supported by appropriate evidence , before a defendant can be detained or his or her detention extended . Detention \u201c pending investigation \u201d should not exceed DATE ( LAW DATE ) . The period of detention \u201c pending investigation \u201d is calculated up to DATE when the prosecutor sends the case to the trial court ( LAW ) .","From the time the prosecutor sends the case to the trial court , the defendant \u2019s detention is \u201c pending trial \u201d . Upon receipt of the case file the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the ORG ) .","The period of detention \u201c pending trial \u201d is calculated up to the date on which the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL of the CCrP ) .","The trial judge can return the case to the prosecutor to remedy the defects impeding the trial ( LAW ( CARDINAL ) of the CCrP ) , for instance if the judge has identified serious deficiencies in the bill of indictment ( LAW ( CARDINAL ) of the ORG ) or a copy of it was not served on the accused . The judge must require that the prosecutor comply within DATE ( Article CARDINAL \u00a7 CARDINAL ) and must also decide on a preventive measure in respect of the accused ( Article CARDINAL \u00a7 CARDINAL ) .","By Federal Law no . CARDINAL of DATE , Article CARDINAL was amended to the effect that , if appropriate , the judge could extend the term of detention with due regard to the time - limits set forth in LAW","Pursuant to LAW , the court of appeal has to set the date , time and place of an appeal hearing and inform the parties accordingly . The parties should be informed DATE in advance of the date of the appeal hearing . The court has to decide whether or not the detainee should be brought to the court of appeal in person . That Article also regulates the arrangements governing a detainee \u2019s appearance in appeal proceedings in person and his or her appearance via video - link .","For further details concerning NORP legislation on pre - trial detention , detention pending trial and remittal of the case to the prosecution for correcting defects of the bill of indictment , see the cases of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL et seq . , CARDINAL DATE ) and PERSON ( PERSON ) v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL et seq . , DATE ) .","Article CARDINAL of the ORG provides that \u201c factual circumstances established in a court judgment ... which have acquired legal force , should be accepted by a court ... without additional verification . However , such a court judgment can not predetermine the question of guilt of those persons who had not participated in [ those ] proceedings \u201d .","Articles DATE of the CCrP describe situations in which a judge can not sit on the bench in a particular case . The judge must withdraw if he is an injured party in that criminal case , if he has already participated in that criminal case in a different capacity ( for example , as a representative of a party , as a witness , etc . ) , if he is a relative of any participant in the criminal proceedings , or \u201c if there are other circumstances which give reason to believe that [ the judge ] is personally , directly or indirectly , interested in the outcome of the criminal case \u201d . The judge whose impartiality is in doubt must withdraw of his own motion ( Article CARDINAL \u00a7 CARDINAL ) ; alternatively , a party to the proceedings may challenge a judge on those grounds ( Article CARDINAL \u00a7 CARDINAL ) . Article CARDINAL of the ORG provides that the same judge can not sit on the bench in the trial court and later in the court of appeal or in the supervisory review court in the same case . The same judge who sat on the bench during the first trial can not remain in the composition if the case is remitted for re - trial . However , there are no rules governing the participation of the same judge in different , yet related , criminal cases ."],"violated_articles":["5"],"violated_paragraphs":["5-1","5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":["5","6"],"non_violated_paragraphs":["5-1","6-1","6-3"],"non_violated_bulletpoints":["6-3-b"],"violated":true}
{"itemid":"001-101323","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF BORIS POPOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and is serving a sentence of imprisonment in GPE .","During TIME there was a theft from an administrative building in the village of GPE , LOC . A fax machine , an electric kettle , a wristwatch and a desk clock were stolen . On DATE the authorities opened a criminal inquiry and arrested a Mr A. During his interview , from TIME , he admitted the theft and named the applicant as his accomplice . A search was carried out in the applicant 's house ; several compact discs , a radio receiver and a telephone set were seized .","It appears that at TIME on TIME the applicant was arrested at his home by CARDINAL officers from the GPE district police station in LOC . The applicant was taken to the police station and placed in the temporary detention centre . At an unspecified time on the same day Mr S. , an investigator with the GPE district police , notified the GPE district prosecutor of the applicant 's arrest . The notification had no reference number and no indication of TIME .","According to the applicant , at TIME on DATE he swallowed an open safety pin in order to protest against his allegedly unlawful arrest . He was taken to a public hospital for an X - ray examination , which confirmed the presence of a safety pin in his stomach . At TIME the applicant was brought back to the police station . Policemen stripped him down to his underwear and handcuffed both his hands to the bars in the lobby of the detention centre . At TIME he was given a chair . During TIME he was allowed to sleep on the floor . He remained handcuffed , was given some water and tea but no food . The applicant was interviewed by an investigator on TIME CARDINAL DATE . At TIME he felt sick and was examined by paramedics . At TIME the applicant was released .","According to the Government , at TIME on DATE the applicant swallowed an open safety pin . After he had been examined at the hospital , he was brought back to the police station . He threatened to slit his veins . He was taken out of the cell , inspected and handcuffed with one hand to metal bars . He remained under the supervision of the on - duty officer . At TIME the applicant was given a mattress and bedding . The handcuffs were regularly moved from one hand to the other . The applicant was taken to a toilet , at his request , and was given water and tea . On TIME investigator PERSON interviewed the applicant . At or QUANTITY the applicant alleged that he felt sick because he had swallowed a razor blade . He was examined by paramedics , who found that the complaint was false .","On DATE Mr A. was interviewed again and stated that he had committed the theft alone . It does not appear that the applicant was subsequently prosecuted for the theft committed during TIME to CARDINAL DATE . It appears , however , that he was sentenced to a prison term in relation to other criminal offences .","As can be seen from an undated certificate issued by ORG of LOC , the arrested persons ' register and the arrest notification register for DATE did not contain any information that the applicant had been arrested DATE under LAW .","In DATE the applicant sued the GPE district police station for compensation in respect of non - pecuniary damage caused by his allegedly unlawful detention and handcuffing on CARDINAL and DATE . By a judgment of DATE ORG dismissed his claim . The applicant was neither present nor represented at the hearing . On DATE the ORG quashed the judgment on the ground that the applicant 's attendance had not been secured , and remitted the matter for a fresh examination . ORG joined the resumed proceedings as a co - defendant .","By a judgment of CARDINAL DATE ORG dismissed the applicant 's claim . On the basis of testimony by investigator PERSON , it found that the applicant had been lawfully detained from CARDINAL to CARDINAL DATE with a view to dispelling or confirming the suspicion of his involvement in the theft . ORG further found that the use of handcuffs had also been lawful and justified . In so finding , it took statements from witnesses : another detainee , PERSON , and CARDINAL on - duty officers , PERSON . and PERSON . They stated that the applicant had been verbally abusive and had shouted , banged at the door , incited to mass disorder and threatened to slit his veins with a razor blade . He had been handcuffed to prevent mass disorder and self - harm . While handcuffed , he had been given food and drink and a mattress to sleep on during the night , and had also been allowed to use the toilet . ORG found that the use of handcuffs from TIME on DATE to TIME on DATE had been compatible with the requirements of section CARDINAL of LAW for the prevention of mass disorder or attempts to inflict self - harm ( see paragraph CARDINAL below ) . In ORG view , the application of handcuffs had not impaired the applicant 's rights , inflicted physical suffering or diminished his honour or dignity .","On DATE ORG upheld the judgment . It noted that the applicant 's deprivation of liberty had been in compliance with NORP law and the Convention because he had been lawfully arrested for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense .","In the meantime , in DATE the applicant had asked the NORP regional prosecutor to open a criminal case against the police officers who had been allegedly responsible for his unlawful detention and handcuffing .","On DATE Mr M. , an investigator with the GPE district prosecutor 's office , refused to institute criminal proceedings . He noted that the GPE district police station possessed no documents or records concerning the applicant 's arrest in DATE . He took a statement from investigator PERSON , who denied that he had ever detained the applicant as a suspect . On the strength of that evidence the investigator concluded that the applicant had not been arrested or detained at the police station from CARDINAL to CARDINAL DATE .","On DATE the GPE district prosecutor annulled Mr PERSON 's decision and asked his deputy , PERSON . , to resume the inquiry .","By a decision of CARDINAL DATE PERSON . refused to institute criminal proceedings in respect of the applicant 's allegations . He had not interviewed the applicant in person but instead quoted his statements to ORG . He had interviewed investigator PERSON , who had retracted his earlier statement and stated that he had apprehended the applicant as a suspect . A record of the arrest had been properly compiled , but after the applicant 's release , he had taken it away from the police station with a view to putting it in the file but had subsequently mislaid it . PERSON . also interviewed the director and deputy director of the temporary detention centre , who claimed that the record of the arrest had been properly drafted and that the handcuffs had been applied to prevent self - harm . CARDINAL on - duty officers testified in the same vein . Relying on those statements and the findings of ORG in the civil proceedings ( see paragraph CARDINAL above ) , PERSON . determined that the use of handcuffs had been lawful and justified .","By a judgment of CARDINAL DATE ORG upheld PERSON . 's decision by way of judicial review . It found that the inquiry had been thorough and complete and that sufficient evidence of the lawfulness and reasonableness of the applicant 's arrest and handcuffing had been collected . ORG took note of the certificate from the head of the district police station showing that the record of the arrest and the detention registers for DATE had been destroyed after DATE storage . ORG held in that connection that the \u201c documents had been wrongly destroyed before the expiry of the correct retention period \u201d but that there was no proof of malice on the part of the public officials . In ORG view , PERSON . had not been required to hear the applicant in person because he had set out his allegations in sufficient detail . Nor had he been required to examine further witnesses , including other detainees , because the statements by police officers had been sufficient . Lastly , ORG dismissed as insignificant the applicant 's argument that the use of handcuffs had not been recorded in any reports , as required by domestic law .","On DATE ORG upheld the judgment .","By a letter of CARDINAL DATE the ORG informed the applicant that the present application had been communicated to the respondent Government . This letter was received at ORG remand centre no . CARDINAL on DATE and was handed over to the applicant on an unspecified date . By a letter of CARDINAL DATE the applicant was invited to submit before DATE his comments on the ORG 's observations . This letter was received at the detention facility on DATE and was handed over to him on or DATE . By a letter of DATE the applicant was provided with a copy of the LANGUAGE translation of the Government 's observations . This letter was received at the detention facility on DATE and was handed over to the applicant on DATE . The delays were due to the applicant 's transfers between several detention facilities . All CARDINAL letters were monitored and stamped by the prison staff .","It appears that on DATE the detention facility dispatched a letter from the applicant to the ORG . However , the letter was returned to the detention facility by ORG with a requirement to add stamp value and remove sellotape from the envelope . In DATE the ORG of LOC held that the refusal to dispatch the letter for lack of funds was unlawful .","On DATE , CARDINAL DATE and CARDINAL DATE the applicant 's representative brought a number of complaints before ORG in relation to various restrictions concerning the correspondence between the applicant and ORG , as well as between the applicant and his representative before ORG ( see below ) .","As can be seen from a certificate issued by the administration of colony no . CARDINAL in GPE , submitted by the Government , DATE the applicant submitted a number of letters for dispatch to ORG . The register of outgoing correspondence contained various entries such as \u201c complaint \u201d , \u201c petition \u201d , \u201c additional complaint \u201d , \u201c request concerning the course of proceedings \u201d , \u201c request concerning receipt of the previous letter \u201d , \u201c request concerning the list of previously submitted documents \u201d , \u201c complaint concerning a violation of his rights \u201d . It appears that the entries for the letters submitted for dispatch in DATE were marked as \u201c sealed envelope \u201d without any further indication of the contents .","On DATE ORG , a non - governmental organisation in GPE , received a letter from the applicant enclosing an authority form for PERSON to represent him in the proceedings before the ORG .","On DATE , DATE and DATE and DATE the applicant sent letters to PERSON at the address of ORG . The letters were accompanied by covering notes by the facility administration , summarising their contents . On DATE PERSON sent a letter to the applicant , who was then being held in prison hospital no . CARDINAL in GPE . The letter was monitored and stamped by the facility administration on DATE ; the stamp was placed directly above the text of the letter . In the meantime , on DATE ORG had received a letter from the applicant , the envelope of which carries a stamp indicating that the letter had been inspected by a correspondence officer .","As can be seen from a certificate issued by the administration of colony no . CARDINAL in GPE , produced by the Government , in DATE and DATE the applicant submitted a number of letters for dispatch to PERSON at the address of ORG . The register of outgoing correspondence contained various entries such as \u201c request for legal assistance \u201d , \u201c complaint concerning the proceedings before the ORG \u201d , \u201c complaint \u201d , \u201c letter \u2013 replies to questions from the ORG \u201d , \u201c request concerning legal assistance \u201d , \u201c request concerning samples of documents \u201d , \u201c request concerning translation \u201d , and \u201c personal letter \u201d .","On DATE the applicant 's representative wrote to the administration of GPE prison no . CARDINAL indicating that she was representing the applicant before the ORG and that her correspondence with him should be treated as privileged and confidential .","On DATE the applicant 's representative sent a letter to the applicant by registered mail , indicating on the envelope \u201c from advocate NORP \u201d . This letter was returned to her with a note \u201c not required because of the time - limit since DATE \u201d .","In DATE and DATE the applicant submitted for dispatch CARDINAL letters addressed to PERSON . The administration of the detention facilities dispatched these letters with notes indicating the number of pages in the correspondence . CARDINAL of the notes was addressed to ORG ; the other CARDINAL notes also indicated that the letters were addressed to \u201c advocate NORP \u201d .","Article CARDINAL of the RSFSR Code of Criminal Procedure ( RSFSR CCrP ) allowed the arrest of a suspect ( i ) at the time of the offence or immediately thereafter ; ( ii ) if eyewitnesses pointed to him as the perpetrator of the crime ; or ( iii ) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home . A record of the arrest was to be drawn up with an indication of the legal basis and the reasons for the arrest , its time and place , and a statement by the arrested person . A prosecutor was to be informed within TIME . After the receipt of the notification the prosecutor had TIME to authorise the arrested person 's placement in custody or to order his release .","The arrested or detained suspect should be interviewed immediately or , if this was impossible , within TIME ( Article CARDINAL ) .","Article CARDINAL of the Civil Code provides that damage caused by unlawful actions or inaction on the part of a public authority or a public official should be compensated . Article CARDINAL \u00a7 CARDINAL of the Code provided , at the time , that damage caused by unlawful prosecution or unlawful placement in custody should be compensated for in full by the ORG , irrespective of any fault by public officials . Article CARDINAL \u00a7 CARDINAL provides that other damage caused by unlawful activity on the part of the investigative authorities or the prosecutor 's office should be compensated for under the rules laid down in Article CARDINAL .","Article CARDINAL \u00a7 CARDINAL of LAW protects the confidentiality of correspondence and communications and allows restrictions on them only on the basis of a court order . LAW provides that rights and freedoms may be limited by a federal law in so far as is necessary for protecting the constitutional regime , morals , health , the rights and legitimate interests of others , and for ensuring national defence and security . ORG has held that the above limitations could be imposed in relation to the deprivation of liberty of convicted persons and concomitant restrictions ( decisions of DATE and DATE ) .","Article CARDINAL of LAW provides that the incoming and outgoing correspondence of a convicted prisoner may be inspected . However , a convicted prisoner 's correspondence with a court , a prosecutor 's office , a public authority supervising detention facilities , a federal or regional ombudsman and ORG should not be monitored . Convicted prisoners ' correspondence with their defence counsel or other persons providing legal advice on legal grounds should not be monitored , except if the prison administration has confirmed information that the correspondence contains information aimed at criminal activity . In such situations the prison administration should issue a reasoned decision on monitoring the correspondence . In addition , under LAW adopted by ORG on DATE ( decree no . CARDINAL ) , outgoing correspondence should be put in a mailbox or handed over to the prison staff in an unsealed envelope , except if such correspondence is privileged .","ORG of GPE has examined the legality of the above legislation and held that it was aimed at \u201c protecting the rights and legitimate interests of other persons \u201d and did not violate the requirements of LAW , which , in turn , referred to \u201c public safety \u201d and \u201c the protection of the rights and freedoms of others \u201d . The court also held that the censorship rule was \u201c nothing but \u201d a way of exercising the right and thus could not be a violation of the right to correspondence ; in any event , the censorship regime was subject to \u201c constant control and supervision \u201d ( see decisions of DATE and DATE ) .","On DATE ORG Administrative Rules on the examination of detainees ' complaints to public authorities ( decree no . CARDINAL ) . The Rules provide that stationery and postal costs are to be paid in compliance with federal legislation ( Rule CARDINAL ) . Correspondence addressed to a prosecutor , a court or a public authority supervising detention facilities , the federal or regional ombudsman or ORG should not be inspected . Such correspondence should be dispatched to the addressee within DATE in a sealed envelope ( Rule CARDINAL ) . Correspondence addressed to other public authorities , non - governmental organisations or defence counsel should be dispatched within DATE ( Rule CARDINAL ) . Replies to \u201c suggestions , applications and complaints \u201d should be handed over to the detainee within DATE of their receipt ; the detainee should sign the record ; and the correspondence may be included in the detainee 's prison file ( Rule CARDINAL ) . Since DATE such incoming correspondence is read out instead of being handed over to the detainee , and is compulsorily included in the prisoner 's file ; the detainee may purchase a copy of the correspondence for his personal use . Rule CARDINAL of the ORG provides that in order to ensure the right of petition to the ORG the prison administration should inform the detainee of the \u201c procedure for making such applications \u201d and provide him with an application form , the instructions for applications and ORG postal address .","Under LAW of LAW , persons detained on remand ( suspects and accused ) can only correspond through the intermediary of the detention facilities ; detainees should pay for their own correspondence . The correspondence is inspected . If the correspondence contains information which may obstruct the criminal proceedings or support a criminal activity , such correspondence should not be dispatched or handed over to the detainee to whom it is addressed . The dispatch of outgoing correspondence or the handing over of incoming correspondence should be carried out within DATE or as soon as it has been translated into NORP . If the detainee has left the detention facilities , the correspondence should be forwarded to the new address within DATE . Under section QUANTITY of LAW , a detainee ( suspect or accused ) should dispatch his correspondence to ORG or municipal authorities and non - governmental organisations through the intermediary of detention facilities . Correspondence addressed to a prosecutor , a court , the federal or regional ombudsman or ORG should not be monitored . Correspondence to other public authorities , non - governmental organisations or defence counsel should be examined by the administration of the detention facility and dispatched within DATE .","DATE Code of Criminal Procedure defines \u201c defence counsel \u201d as a person who represents a suspect or defendant in criminal proceedings and provides him with legal advice . It also specifies that in order to act as defence counsel , an advocate should produce his certificate to practise law and an order from his law firm authorising representation of the person concerned .","Section CARDINAL of the DATE LAW provides that handcuffs may be used on a suspect or accused to put an end to his unlawful resistance , and to prevent him from escaping or from causing damage to others or himself .","ORG Rec(CARDINAL)CARDINAL to member GPE on ORG , the relevant parts of which read as follows :","\u201c CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice .","CARDINAL Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense .","CARDINAL Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners .","CARDINAL ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential .","CARDINAL A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security .","CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings ...","CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .","CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .","CARDINAL ORG law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted . \u201d","The DATE ORG relating to Persons Participating in Proceedings of ORG reads as follows :","\u201c The Contracting Parties shall respect the right of the persons referred to in paragraph CARDINAL of LAW to correspond freely with the ORG .","As regards persons under detention , the exercise of this right shall in particular imply that :","... such persons shall have the right to correspond , and consult out of hearing of other persons , with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the ORG , or any proceedings resulting therefrom .","In application of the preceding paragraphs , there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , for the detection or prosecution of a criminal offence or for the protection of health . \u201d","GPE is not a party to this Agreement .","The instrument of ratification of the Convention deposited by GPE on DATE contained the following reservation :","\u201c In accordance with LAW , GPE declares that the provisions of LAW and CARDINAL shall not prevent ... the temporary application , sanctioned by the second paragraph of point CARDINAL of LAW of GPE , of the procedure for the arrest , holding in custody and detention of persons suspected of having committed a criminal offence , established by LAW paragraph CARDINAL , LAW paragraph CARDINAL , ORG CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure of DATE , with subsequent amendments and additions ... \u201d"],"violated_articles":["5","8"],"violated_paragraphs":["5-1","5-5"],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57612","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1989,"docname":"CASE OF BROZICEK v. ITALY","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-3-a;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"C. Russo;J.A. Carrillo Salcedo;N. Valticos","text":["Mr PERSON was born in GPE and now resides at Steinalben in GPE , of which country he is a national .","On CARDINAL DATE the municipal police of PERSON ( PERSON ) detained him on the public highway shortly after he had torn down some small ornamental flags erected in connection with a f\u00eate organised by a political party . The police , who had intervened at the request of CARDINAL of the organisers , took him to the police station because he did not have any identity papers with him and , according to their version of events , because he had to be protected against the hostility of the participants . On this occasion he wounded CARDINAL of the police officers .","On DATE the carabinieri , who had also intervened on DATE , submitted a report on the incident to ORG . On DATE Mr Brozicek sent a letter , in LANGUAGE , to the Police Chief ( questore ) of GPE , which was subsequently transmitted to ORG , who ordered its translation into NORP on DATE .","ORG opened an investigation and on DATE sent to the applicant - by registered letter requiring acknowledgment of receipt and bearing the address of the applicant 's then residence in GPE - a \" judicial notification \" ( comunicazione giudiziaria ; see paragraphs CARDINAL - CARDINAL below ) . It informed him that proceedings had been instituted against him for the offences of resisting the police and assault and wounding ( Articles CARDINAL and CARDINAL of LAW ) . In addition , it invited him to appoint a defence lawyer of his choice and informed him that if he failed to do so PERSON , avvocato , would be appointed by the authorities .","On DATE Mr Brozicek returned the document to ORG with the following note ( translation from the NORP ) :","\" I return the enclosed document to the sender as I find it difficult to understand . In lodging my detailed complaint of CARDINAL DATE - on which no action has yet been taken even though the facts complained of could have far - reaching consequences - and in all correspondence to date with the NORP authorities , I have always expressly requested that either the mother tongue of the persons concerned or CARDINAL of the international official languages of ORG be used , in order to avoid from the outset any risk of misunderstanding . \"","ORG received this letter on DATE . It did not send any reply and did not have the letter translated .","On DATE ORG sent to the applicant by registered letter requiring acknowledgment of receipt a second \" judicial notification \" . In addition to the information contained in the first notification , it asked the applicant to provide an address for service in GPE ( Article CARDINAL bis of LAW ) .","On DATE the NORP postal authorities returned the letter to the sender marked \" unclaimed \" .","The acknowledgment of receipt bore the name \" Brozicek \" , in a different space to that provided for the addressee 's signature . The Government maintained that it was the applicant 's signature but he has always denied this ; he claimed that he had not received the communication because he had just moved house . The expert opinion ordered by ORG ( see paragraphs CARDINAL and CARDINAL above ) did not resolve this question .","By an order ( decreto ) of CARDINAL DATE ORG stated that it had not been possible to notify the applicant and that \" further enquiries at the place of birth and place of last residence \" had not produced any result . He appointed a defence lawyer and directed that all the documents for notification to the accused during the investigation should thereafter be lodged at the secretariat of ORG .","At the hearing before ORG on CARDINAL DATE , the ORG affirmed that the reference to further enquiries was probably an oversight . They maintained that the provision applied to the applicant was the second part of the second paragraph of LAW ( concerning an accused who has given no address for service , see paragraph CARDINAL below ) , which does not require such enquiries .","ORG summonsed PERSON to appear for examination on DATE , but to no avail , and , on DATE , he asked the President of ORG to commit the applicant for trial .","The trial was set down for DATE but when the time came the proceedings had to be adjourned because the date of the hearing had not been notified to the accused .","On DATE the President of ORG decided that any notification would be lodged with the court registry because the accused had not provided an address for service in GPE ( Articles CARDINAL and CARDINAL bis of LAW , see paragraph CARDINAL below ) . He also appointed a lawyer to represent the accused .","After an adjournment for reasons extraneous to the proceedings , the trial took place on DATE .","On that date the applicant was convicted in absentia , sentenced to DATE imprisonment and ordered to pay the costs . The sentence was , however , suspended and no reference to the conviction was to be included in criminal - record certificates issued at the request of private individuals .","This decision too was notified to the applicant by being lodged at the court registry because , still pursuant to LAW , the president of the court had again noted , on DATE , that ORG had not provided an address for service in GPE .","As there was no appeal , the judgment became final on DATE .","On CARDINAL DATE the applicant received a letter from ORG at ORG ( ORG ) . The letter informed him of his conviction by judgment of the PERSON court of DATE , which had become final on DATE , and that the conviction had been entered in the NORP criminal records ( LAW , Bundeszentralregistergesetz ) .","On DATE lodged an application with the Commission , stating , inter alia , that \" the possibilities for appealing [ were ] manifestly time - barred under NORP law ... \" . On DATE he also wrote to ORG and ORG .","In his letter to ORG he requested its assistance in securing , as soon as possible , the rectification or the annulment of the PERSON judgment .","In his letter to ORG he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him . He asked what possibilities of appealing against the decision were open to him .","On DATE the NORP Ministry replied that he could lodge an appeal against the judgment outside the normal time - limits ( hereinafter referred to as a \" late appeal \" ; see paragraph CARDINAL below ) , if the notification to him had not been lawfully made , and seek a retrial .","The applicant did not avail himself of either of these possibilities .","ORG instructed ORG to determine whether there was any possibility of appealing against the judgment of DATE . As the first result of its communications with the PERSON court , the ORG forwarded to the applicant , on DATE , a photocopy of the NORP text of the judgment , which was for the most part handwritten . PERSON acknowledged receipt of this text by a letter dated DATE .","A judicial notification is the document by which the judicial authorities inform the person suspected of having committed an offence that an investigation has been opened and invite him to appoint a defence lawyer of his choice and to provide an address for service . It must specify the legal provisions infringed and the date of the alleged offence .","The investigating judge , in the event of a \" formal \" investigation , or the public prosecutor , where the investigation is \" summary \" , must send the notification at the very beginning of their investigation ( ORG CARDINAL and CARDINAL of the Code of Criminal Procedure ) .","The notification must be sent by registered letter requiring acknowledgment of receipt . If the letter is not delivered because the addressee is untraceable ( irreperibile ) , a bailiff must serve the notification in accordance with the normal procedure ( Articles CARDINAL - CARDINAL of the Code of Criminal Procedure ) .","In its PERSON and Others judgment of DATE and its NORP judgment of CARDINAL DATE ( Series A no . CARDINAL , p. CARDINAL , \u00a7 \u00a7 DATE , and Series A no . CARDINAL , p. CARDINAL , \u00a7 \u00a7 DATE , and pp . CARDINAL - CARDINAL , \u00a7 \u00a7 DATE ) the ORG gave a brief description of the NORP legislation then in force as regards the notification to a person or an accused who is \" untraceable \" , trial in absentia ( contumacia ) and \" late appeal \" ( appello apparentemente tardivo ) .","In this regard LAW provides as follows ( translation from the NORP ) :","\" Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad , ORG or trial judge ( pretore ) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted . This formality shall neither suspend nor delay the proceedings .","Where the accused 's address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate , the judge or the public prosecutor shall make the order ( decreto ) provided for in LAW .","The above provisions shall not apply where the issue of an arrest warrant is mandatory . \"","The second sub - paragraph of Article CARDINAL states that ( translation from the NORP ) :","\" The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending . The defence lawyer shall be informed without delay of any such notification . \"","The possibility of lodging a \" late appeal \" was at the time derived from judicial interpretation of Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , according to which ( translation from the NORP ) :","\" In the case of in absentia proceedings , an extract of the decision or judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings , subject to the provisions of the third paragraph of Article CARDINAL . \"","\" ...","For the decisions or judgments referred to in LAW , the period within which the accused may appeal shall begin to run from the notification of the decision or judgment .","... \"","On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings , the person concerned could , within DATE , contest such notification and challenge the finality of the decision in question . If he was successful in so doing , he was accorded a new time - limit within which to appeal against the said decision .","The new Code of Criminal Procedure , which came into force on DATE , now makes express provision for this possibility of \" re - establishing the time - limit \" ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-a"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115144","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2012,"docname":"CASE OF VOLK v. SLOVENIA","importance":4,"conclusion":"No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Helena J\u00e4derblom;Mark Villiger;Paul Lemmens","text":["The applicant was born in DATE and lives in ORG . She is the mother of PERSON , who was born in DATE .","On DATE the applicant \u2019s son was convicted of rape , grievous bodily harm and deprivation of liberty . He was sentenced to DATE in prison . On DATE he started serving his prison sentence in FAC .","The applicant \u2019s son had been dependent on drugs since DATE . As a part of his medical treatment in prison he received substitutes for opiates , such as GPE , ORG , which is a hypnotic , PERSON , which is an antipsychotic drug , and PERSON , which is an anti - depressant . Before beginning his sentence , the applicant \u2019s son made an appointment at a drug dependency treatment centre at a psychiatric hospital . Its report , dated DATE , shows that he had stated that he wished to be hospitalised , but had failed to meet the conditions , namely abstinence . On DATE the applicant \u2019s son was examined privately by a psychiatrist , who noted that he had no sign of abstinence and was referred to his general practitioner for treatment for drug dependency .","As regards the facilities available to the applicant \u2019s son in the cells and common areas in GPE , as well as the health care regime in the prison and the conditions imposed on him regarding activities outside the cells and contact with the outside world , see the ORG \u2019s decision in the case of PERSON and PERSON v. GPE ( dec . ) , no . CARDINAL etc . , DATE .","As regards drug users , the prison offers medical ( including methadone substitution ) treatment and therapeutic help in accordance with a specialised drug treatment programme . Prisoners who successfully undergo methadone substitution treatment are able to undergo detoxification , which normally takes DATE . Further rehabilitation of previous drug users is provided in the drug - free sections of the prison , to which only those prisoners who are no longer dependent on drugs and who are no longer undergoing opiate replacement therapy may be assigned .","When he arrived in GPE , the applicant \u2019s son underwent an admission interview , conducted by a social worker , which , apart from his dependency problem , did not show anything giving rise to particular concern . On DATE he was examined by a doctor , who prescribed him substitution therapy for drug dependency . On DATE he was seen by a drug abuse therapist .","The applicant \u2019s son was initially placed in a QUANTITY cell , which he shared with another prisoner . DATE and CARDINAL DATE he was accommodated in cell CARDINAL , ORG . The cell , in which CARDINAL prisoners were held , measured QUANTITY .","On DATE the applicant \u2019s son developed an infection in his right arm and underwent surgery on DATE . DATE and DATE his wound was cleaned and dressed DATE .","On DATE and DATE the applicant asked ORG authorities to move her son to FAC . She stated that the latter prison was closer to their home and had better living conditions . She also stated that her son was often ill and was in hospital at the time of the request . Her request was rejected on the grounds that proper medical assistance could also be provided in FAC .","In the meantime , the prison psychologist saw the applicant \u2019s son on DATE . He noted , inter alia , that no serious mental difficulties or suicidal tendencies could be observed . On DATE a prison social worker GPE , held a meeting with the applicant , her son and his sister . The applicant inquired about the prison regime and repeated her requests for a transfer for her son .","On DATE the applicant told the drug abuse therapist that he was in crisis with his drug dependency and that he had stopped taking his substitution medication . The therapist informed him of the possible treatments for his drug dependency in the prison . On DATE the applicant had a consultation with the psychologist . On DATE the general practitioner noted in the report that the applicant had stopped taking the substitution medication .","On DATE a \u201c personal plan \u201d ( osebni na\u010drt ) was set up for the applicant \u2019s son . Referring to the judgment by which he had been convicted and the report from the drug abuse therapist , the plan noted that the applicant \u2019s son \u2019s substitution therapy should be monitored and that he should be encouraged to deal with his drug dependency . It was envisaged that a urine test be regularly taken ; that he have special psychological therapy with regard to the criminal offence he had committed ; and that he be given the opportunity to continue his primary education . It was also noted that social worker GPE was the officer responsible for his case .","On DATE the applicant \u2019s son had a consultation with the drug abuse therapist . On DATE he was also introduced to leisure activities provided by the prison . It was agreed that he would attend such activities for TIME every Wednesday . However , he attended CARDINAL times and after DATE he gave up the enrolment .","On DATE a meeting was held with the applicant \u2019s son . The report prepared by the head of ORG following the meeting does not reveal anything untoward .","On DATE the applicant \u2019s son told the psychiatrist that he had started taking heroin again . He told the drug abuse therapist , whom he saw DATE , the same thing . During DATE the applicant \u2019s son also had CARDINAL consultations with the psychologist .","On DATE the applicant \u2019s son was seen by a social worker , following an \u201c urgent request \u201d in which he complained about extortion by his co - inmate , PERSON , from other inmates , including himself . The applicant \u2019s son gave a statement on the record in which he alleged that PERSON had taken money from him , as well as clothes and slippers . On DATE S.B. was moved to ORG ( high - security regime ) .","In TIME of CARDINAL DATE , CARDINAL guards entered the cell and found the applicant \u2019s son using a wet towel to cool his face . He told them that he had been attacked by ORG because of a dispute over a ORG network key . The operative head of the prison then talked to both prisoners , who reached agreement . After the incident , the applicant \u2019s son \u2019s personal belongings were searched . It was discovered that his computer was connected to the internet and drugs were found in his cupboard . The computer and the drugs were seized . Following the search , the applicant \u2019s son repeatedly said that he would cut or hang himself and that he would not survive the night . The applicant \u2019s son was then transferred to a special cell with video surveillance , where he remained from TIME On DATE a report noting these events was prepared by the prison guard who was on duty that evening .","At TIME on DATE the applicant \u2019s son was returned to an ordinary regime . Before this transfer he was seen by the head of Block CARDINAL . According to the report prepared by the head , the applicant \u2019s son had said that he had had no intention of committing suicide and that he had calmed down . It was also noted that he had refused to be examined by a doctor , as he had not sustained any injuries . Lastly , the report noted that the psychologist had talked to the applicant \u2019s son and that the prison guards had been informed that they needed to pay special attention to him .","On DATE the head of ORG and the prison psychologist held a meeting with the applicant , her son and his sister . The report of the meeting notes that the applicant alleged that her son was in danger and that it was no surprise that he was on drugs . They also discussed the incident of CARDINAL DATE and the applicant \u2019s transfer request . As regards the latter , the prison officers explained to the applicant that her son could not simply be moved to ORG or DATE , and informed her that the prisoner who had extorted money from the applicant ( presumably PERSON ) was now being held in a high - security block ( i.e. Block CARDINAL ) . DATE , CARDINAL DATE , the applicant was transferred to ORG . The decision referred to his drug problem , refusal to give urine samples and possession of illegal items . His transfer to ORG implied that he could only have TIME of outdoor exercise and was not allowed to spend time in the recreation room . He was allowed to receive visits of an TIME \u2019s duration , and to use the telephone in accordance with the DATE schedule . When leaving the cell he was accompanied by a guard and he could spend time outdoors only in the Block CARDINAL yard . CARDINAL prisoners were allowed to be in the same area of the yard , under supervision . the applicant \u2019s son was held in cells CARDINAL , DATE and CARDINAL .","On DATE and DATE social worker GPE invited the applicant \u2019s son for a consultation , but he refused . He also refused to have a consultation with the drug abuse therapist on DATE and DATE . However , in DATE the applicant \u2019s son had one consultation with the drug abuse therapist and CARDINAL with the psychologist . In DATE he saw the drug abuse therapist once and the psychologist twice . Moreover , DATE and DATE the ORG son had CARDINAL consultations with the psychiatrist , in which they discussed his drug dependency and substitution therapy .","The applicant made further requests for a transfer for her son , which were refused on DATE .","On DATE the team of officers dealing with the applicant \u2019s son \u2019s case decided that he should be moved to Block CARDINAL .","On DATE , DATE and DATE social worker GPE held meetings with the applicant \u2019s son . They discussed transferring him to an ordinary regime , where he would be able to participate in a drug treatment group and attend school as well as take part in leisure activities . They also discussed his problem with debt . The applicant \u2019s son said that he had a debt of MONEY ( ORG ) but he did not fear the person to whom he owed the money . He had more concern about a certain ORG , to whom he owed ORG CARDINAL and whom he might meet on the yard if transferred . He added that he would not provoke ORG When reminded , on DATE , that it was planned to transfer him to ORG , the applicant \u2019s son requested that this be delayed for DATE . He said he did not feel strong enough to reject drugs if they were offered to him . He was reminded that he was continuing to refuse to give urine samples , which was an indication that he was taking drugs while in FAC .","Following the meeting with social worker GPE on DATE ( see paragraph CARDINAL above ) , at which he had opposed the idea of being transferred to an ordinary regime , a decision was taken that he should stay in ORG .","Following unsuccessful attempts to reach the Head of ORG Sentences ( \u201c the NORP \u201d ) by email or telephone , the applicant sent him a letter on DATE . She complained about the refusal of her request for transfer , stating that it was clear from the documentation available to the prison authorities that her son had lodged a complaint against ORG and that she had asked for him to be transferred out of the cell following the attack by PERSON She also complained that the applicant \u2019s son had previously been in a cell with CARDINAL prisoners , although the statutory limit was CARDINAL prisoners , and that , unlike in FAC , in FAC he was not provided with the opportunity to study or work . She also stated that of CARDINAL prisoners CARDINAL were taking drugs and that CARDINAL psychiatrist was employed for TIME a day and was not sufficiently accessible . This letter was treated as an appeal and rejected by the ORG on DATE . The latter reiterated that ORG did not provide any special psychological treatment targeted at her son \u2019s drug abuse and the offence he had committed , and that FAC had sufficient means at its disposal to ensure his safety .","It would appear that on DATE the governor of ORG requested , of his own motion , that the applicant \u2019s son be transferred to FAC , stating that this would have a positive effect on his motivation for realisation of his \u201c personal plan \u201d .","On DATE , DATE and DATE the applicant \u2019s son saw the psychologist .","On DATE it was ordered that the applicant \u2019s visits to her son should be held behind a glass partition . The decision referred to the fact that following visits from his sister and the applicant on CARDINAL and DATE he was found to be in possession of a presumably illegal substance .","On DATE , during a conversation with a psychiatrist , the applicant \u2019s son became very upset and threatened to harm himself . The prison governor ordered that he be placed in a single cell under supervision and afterwards remain in FAC .","On DATE the psychiatrist had a discussion with the applicant about her son \u2019s situation . The applicant \u2019s son was also examined by the psychiatrist . At that examination he said that he wished to reduce substitution therapy . He also confirmed that he had had suicidal thoughts twice before . The physiatrist prescribed him substitute therapy and anti - stress medication . The applicant \u2019s son saw the psychologist DATE .","On DATE and CARDINAL DATE social worker GPE invited the applicant \u2019s son for a consultation , but he refused to attend .","On CARDINAL DATE social worker GPE and the prison governor held a meeting with the applicant and her son . The applicant stressed that her son was in danger and referred to her requests that he be transferred .","In the meantime , on CARDINAL DATE the applicant \u2019s son reported to the prison authorities that he had been attacked by an inmate from the same cell and asked to be transferred to another cell .","On CARDINAL DATE the Head of the ORG issued a decision refusing the request by the governor of Dob Prison on the grounds already given in the previous decisions ( see paragraphs CARDINAL and CARDINAL above ) , but ordered of his own motion a temporary placement of the applicant \u2019s son in FAC for the period between DATE and DATE .","On DATE a report was sent to FAC , which noted the applicant \u2019s son \u2019s addiction problem and his fear of fellow inmates to whom he owed money . It was also mentioned in the report that officers from FAC had noticed that a certain prisoner was putting pressure on the applicant and was demanding that he return money .","NORP On DATE and CARDINAL DATE the applicant \u2019s son was examined by a general practitioner in PERSON , who noted that he had not been taking substitution medication .","On DATE , after a visit from his mother and sister , the applicant \u2019s son was found to be in possession of a bag containing QUANTITY tablets , which had been hidden in a shampoo bottle . Because of this incident , as well as because of his lack of interest in education and drug rehabilitation , the applicant \u2019s son was returned to FAC on DATE .","Following his return to Dob Prison , the applicant \u2019s son was interviewed by a prison officer , who noted in a special questionnaire that he had a history of drug abuse and attempted suicide . The doctor who examined him noted that his medical condition remained unchanged . The applicant \u2019s son was placed in a single cell CARDINAL ( QUANTITY ) in FAC . The electric light in this cell was not functioning .","On DATE the drug abuse therapist held a consultation with the applicant \u2019s son . The latter said that he wished to discontinue the substitution therapy , but did not want to participate in drug therapy or give urine samples . He also alleged that he had intended to use the tablets he had been found to possess in FAC to \u201c clean himself \u201d .","On DATE the psychologist discussed a \u201c personal plan \u201d with the applicant \u2019s son .","On DATE the applicant \u2019s son lodged a request to be given leave to bring into his cell certain objects , such as an electric extension cable , a ORG key and so on , which was granted on DATE .","On DATE the applicant was transferred to single cell CARDINAL in FAC , which was identical to cell CARDINAL but had functioning electricity .","During his stay in Dob Prison the applicant \u2019s son sent CARDINAL letters and received CARDINAL packages . He had telephone contact with his father , his sister and the applicant . He was visited regularly by the applicant and by his sister . He was allowed to bring in his computer , radio , headphones , boxing equipment and so on . In the period DATE the applicant \u2019s son participated in FAC to education \u201d programme . He attended TIME of this course .","On DATE , the technical facilities in the cell were inspected and the applicant \u2019s son was given a DVD player , a night light and some other items for personal use brought in by his mother . TIME and TIME the applicant telephoned his mother . Beforehand , while waiting for the telephone in the corridor , he was attacked by prisoner PERSON security camera footage from the staircase area at the time of the attack , which was submitted to the ORG , show that PERSON and the applicant \u2019s son met at the stairs and that the former swung his hand towards the latter and grabbed or attempted to grab him , possibly around the neck . PERSON is then seen leaving , being followed by the guard who was rushing after him . These events took TIME .","At TIME , in the context of regular supervision when the guard changed , CARDINAL guards on day duty entered cell no . CARDINAL and saw the applicant \u2019s son sitting smoking . They later said that the applicant \u2019s son looked at them and greeted them and that he seemed normal , as he had earlier in DATE . At TIME CARDINAL guards from the night shift opened cell CARDINAL for a nurse to deliver the prescribed medication . They found the applicant \u2019s son hanging from a water pipe by his bed sheet . The nurse examined him and concluded that he was dead . At TIME a doctor arrived . Officers from a local police station arrived at the scene at TIME The investigating judge on duty was informed of the incident but declined to attend . According to a report dated DATE the doctor found that the applicant \u2019s son had died as a result of suicide , that there were no signs of violence and that the cause of suicide was a depressive syndrome and drug addiction . The remains were taken to a hospital , where an autopsy was carried out .","Immediately after the death of her son , the applicant requested the police to seize the applicant \u2019s son \u2019s personal file kept in the prison , which they did .","Following the death of the applicant \u2019s son , CARDINAL report was prepared by PERSON , head of security at FAC , and another by a CARDINAL - member commission formed within the ORG .","The first report , which is dated DATE , concluded :","\u201c We regret the incident . The prisoner was a known drug addict when he started serving his sentence . Due to his drug addiction , the enforcement of the prison sentence was very difficult ... Due to his drug addiction , [ the applicant \u2019s son ] soon got into trouble with other inmates and suffered mental difficulties .","It is our assessment that the treatment of the prisoner was lawful , respectful and professional ...","We believe that the prisoner \u2019s suicide could not have been prevented , due to the complexity of his problems . \u201d","On DATE the Head of the ORG appointed a CARDINAL - member commission to investigate the circumstances of the applicant \u2019s son \u2019s death . The commission held interviews with the CARDINAL prison guards who were on duty on DATE of the suicide , the prison psychologist , certain prisoners , the nurse who was present at the scene of the suicide , the governor , and ORG , S.\u017d , , and examined documents which remained available after the seizure . It issued a report on CARDINAL DATE . According to the report , the prison doctor and GPE stated that the applicant \u2019s son had not shown any suicidal tendencies . It noted that the applicant \u2019s son had not reported the conflict he had with PERSON on DATE of his death , which was only observed when the video recordings were inspected after the suicide . The commission concluded :","\u201c According to the assessment made by the commission , the treatment [ of the applicant \u2019s son ] was lawful , respectful and professional . However , by his conduct and actions the prisoner contributed to several conflict situations , which the authorities could not entirely prevent . The fact that the prisoner was often transferred within the establishment as well as to FAC demonstrates that efforts were made to ensure his safety .... The commission also notes that the deceased never reported maltreatment by or conflicts with the prison staff . It was also denied by the prisoners heard by the commission that the deceased was maltreated , threatened or intimidated by prison staff .","On the basis of the established facts , the commission concludes that the [ authorities of ] Dob Prison could not have prevented the suicide of the deceased . \u201d","On DATE the governor of Dob Prison sent the ORG an additional report , focusing on the conflict between the applicant \u2019s son and PERSON It noted that the contact between the applicant \u2019s son and PERSON took TIME . Having regard to the statements of prison staff and a prisoner who were near the staircase at the time in question and did not observe or hear anything , as well as to the fact that the applicant \u2019s son sustained no injuries , it was unlikely that PERSON had hit the applicant . The report also noted that the prison staff was of the opinion that there had been much more conflict going on than had actually been observed by them , and that some inmates claimed that the applicant \u2019s son had debts amounting to a total of around LAW . According to the report , the telephone booths were situated near the staircase and inmates often encountered each other there . This was a known problem , and efforts to change the system were under way . The report suggested that it would have been easier for the applicant \u2019s son to serve a sentence in a smaller prison and that a systemic solution to cases such as his would have been isolation from other inmates , which was legally and practically impossible at the material time .","Previously , on DATE , the applicant had lodged a criminal complaint against the prisoners who had allegedly intimidated and beaten her son on several occasions . Her statement given to the police read , as far as relevant , as follows :","\u201c PERSON started serving his sentence in DATE . He was placed in Building CARDINAL . There , he was intimidated by a prisoner called ... [ S.B. ] , who would take his things ( money and other things ) and beat him ( for example , every day he would wait for him outside the bathroom , slap him and demand that PERSON give him everything he had ) . This was confirmed by another prisoner ... who shared a cell with PERSON . [ Further to complaints from PERSON and another prisoner ] ... [ S.B. ] was transferred to Building CARDINAL ... PERSON was then beaten by a prisoner ... [ D.M ] on DATE ... Immediately after that attack , PERSON reported the incident to the prison guards and told them that he would cut his throat ( this is what the administration told me ) . For that reason , PERSON was put under video surveillance for TIME in a special room ... On DATE PERSON was moved to Building CARDINAL and since then he has been afraid to leave the room ... He is afraid of ... [ S.B and D.M. ] , who were also moved to this building ... so that now all CARDINAL of them are there ...","I asked for a transfer for my son ... but was unsuccessful on the grounds that I failed to bring evidence showing that PERSON was in danger .","I am very afraid for the safety of my son ... PERSON is also very very afraid . I wish they would transfer him anywhere , just away from here , as he still has DATE to serve ... \u201d","NORP The police forwarded the above criminal complaint to the ORG ( \u201c the Prosecutor \u201d ) . On DATE the ORG requested the police to collect evidence and requested that the case be examined as a priority . Subsequently , the police forwarded to him a report which included a statement by the applicant \u2019s son . The latter told the officers that he had no interest in pursing the proceedings and that it was his father who had started them . On DATE the Prosecutor again requested the police to collect evidence , in particular as regards the allegations concerning ORG and a certain ORG , who was also mentioned by the applicant at some point . He instructed them to question the suspects as well as prison staff , and also to investigate what measures were being taken by the prison staff to monitor the applicant \u2019s son and what the prison authorities\u2019 findings were as regards the applicant \u2019s son \u2019s endangerment and debts .","Following the applicant \u2019s son \u2019s death , on DATE the police secured the evidence at the scene and ordered an autopsy . They took statement from , inter alia , the inmates who had had contact with the applicant \u2019s son and seized the video recordings of his contact with PERSON on DATE of the suicide . On DATE the police interviewed the applicant . On DATE a hospital autopsy report was issued . It stated that there were no signs of violence on the applicant \u2019s son \u2019s body and found that the death had been caused by hanging .","On DATE the applicant complained to FAC about the conditions of her son \u2019s detention , and alleged that she had not been taken seriously by prison officers , in particular the governor , PERSON","On DATE the applicant told ORG that a prisoner from ORG had called her DATE to tell her that her son had been attacked by another prisoner shortly before his suicide and that the prison officers had done nothing to stop the attack . She also alleged that her son had died in suspicious circumstances and that the head of ORG , GPE , had intimidated her son . She further alleged that the authorities had not adequately responded to her warnings about the fragile mental state of her son and his risk of suicide . On DATE the applicant also went to FAC , where she alleged that her son had been beaten up prior to his death , that the head of ORG , GPE , had threatened her son and had moved him to a cell with no amenities on CARDINAL DATE . She also alleged that governor PERSON performed his duties in a negligent manner . On DATE the investigating judge on duty ordered a new autopsy to be carried out by ORG to establish the exact cause of death , whether there were injuries on the body , and whether prompt help could have prevented the death .","An autopsy report was prepared by ORG on DATE . It showed no injuries on the body which could have been caused by the use of violence ; it noted suicide as the certain cause of death . It also noted that the applicant \u2019s son was not under the influence of drugs and that the death could have been prevented only if he had been found TIME after the hanging .","On DATE the applicant alleged at the ORG office that her son \u2019s suicide had been caused by the extortion by PERSON and his attack on DATE of her son \u2019s death . She also alleged that the prison guards should be held responsible for the attack , which they could have prevented .","On DATE the Prosecutor ordered the police to collect evidence concerning the suspects referred to by the applicant , to conduct interviews with the prison guards and relevant inmates and to prepare a report concerning the video recordings .","On DATE the applicant reported to ORG her suspicion that her son had been murdered in the prison . She said that her son took a large number of tablets , then lost consciousness and was hanged by the prison guards .","On DATE the ORG sent a letter to police urging them to collect evidence , as previously requested by him . He emphasised the need for an extensive and thorough investigation of the allegations made by the applicant . He also stated that the investigation should be based on direct taking of evidence by police , and gave them certain instructions in this regard .","On DATE a forensic report was issued . It found that the fingerprints at the scene of the suicide were those of the applicant \u2019s son .","On DATE the police submitted their report concerning the applicant \u2019s allegations . It transpires from the report that the police had questioned , among others , the head of Block CARDINAL GPE , the social worker GPE and CARDINAL inmates . The report referred also to the findings of autopsy reports , the toxicological report , the applicant \u2019s son \u2019s prison file and his diary . It noted that the time of death was sometime between TIME and TIME","On DATE the ORG requested that a criminal investigation be opened against PERSON concerning the criminal offence of extortion . His request was upheld by the investigating judge . A number of witnesses , including prisoners who knew the applicant \u2019s son and the applicant , were heard . PERSON stated in those proceedings that the applicant \u2019s son had sold everything he had for drugs and had borrowed money from co - inmates , but not from him . According to PERSON , the applicant \u2019s son , in order to get more money from his family , falsely reported to authorities that he and ORG had been extorting money from him . This had had consequences for PERSON as he had been moved to ORG for DATE . PERSON also admitted that he had met the applicant \u2019s son at the staircase on DATE of his death . He said that the applicant \u2019s son had greeted him and that he in response had pushed him , saying that he did not have the right to greet him as he had been the reason for his transfer to FAC . As there was insufficient evidence that ORG had extorted money from the applicant \u2019s son , and in particular there was insufficient proof that the applicant \u2019s son had owed anything to PERSON , the prosecutor eventually discontinued the proceedings ( on DATE ) . The applicant subsequently took them over in her capacity as a subsidiary prosecutor . The proceedings are currently pending trial .","DATE . On DATE the ORG requested the police to take further measures to investigate the allegations concerning the alleged lack of protection of the applicant \u2019s son by prison staff and ill - treatment by fellow inmates , in particular GPE and ORG He also requested that the role of the prison governor PERSON be explored .","On DATE the police obtained a forensic report which indicated that the handwriting on the letter found next to the body was that of the applicant \u2019s son .","On DATE and CARDINAL and CARDINAL DATE the applicant lodged further criminal complaints against named prisoners and prison officials , including the governor PERSON and the head of ORG , GPE She alleged , inter alia , that they had committed the criminal offence of negligence by denying her son access to psychiatric care . The Prosecutor subsequently requested the police to question the relevant prison staff with regard to these allegations .","On DATE the Prosecutor rejected the applicant \u2019s criminal complaints concerning the criminal offences of extortion , endangering the security of a person , murder , abuse of office , violation of human dignity by abuse of power , and theft allegedly committed against the applicant \u2019s son by fellow inmates or prison staff . The written reasons given for the ORG \u2019s decision , which is CARDINAL pages long , refer to , inter alia , statements by prisoners . While most of them did not indicate anything which would attract particular attention , CARDINAL of them testified that the applicant \u2019s son prior to his death had mentioned to them that he was unhappy about not having a television , and that he had said he did not feel well , but did not mention suicide . CARDINAL also said that the applicant \u2019s son had told him that he wanted to sue the Head of Block CARDINAL , ORG said that the applicant \u2019s son had been addicted to heroin and spent DATE on drugs per day . ORG said that he had lent him ORG CARDINAL , and had taken his jacket as EUR CARDINAL of it . The decision further refers to the analysis of the video recordings and to the limited contact between the applicant \u2019s son and PERSON It also notes that PERSON was sanctioned in disciplinary proceedings for an attack on the applicant \u2019s son . The decision moreover refers to statements by GPE , who said during questioning by the police that he had been in DATE contact with the applicant \u2019s son in DATE preceding his death . After his return from FAC , GPE had not noticed any changes in his behaviour which would indicate that he was a suicide risk . According to GPE , the applicant \u2019s son wished to stay in a single cell and the fact that there was no light in cell CARDINAL did not appear to bother him . Moreover , he seemed content on DATE , after being moved to a new cell . GPE also said that the applicant called the prison authorities on an almost DATE basis , in particular before the applicant \u2019s son \u2019s transfer to FAC , requesting her son \u2019s transfer and claiming that he felt unsafe . On the basis of the evidence in the file , the Prosecutor concluded that PERSON \u2019s behaviour had not caused the applicant \u2019s son \u2019s suicide . The Prosecutor also found that there was not the slightest indication that the applicant \u2019s son had been murdered . Furthermore , he noted that his accommodation had been determined in the standard procedure and not at the discretion of GPE , that the prison staff had acted within their competences , and that GPE and PERSON had tried to make the applicant \u2019s son \u2019s accommodation as comfortable as possible in the circumstances . He established that the applicant \u2019s son had never been denied medical or psychiatric assistance . There was also no evidence of other acts alleged by the applicant , including the alleged extortion by ORG","The applicant , in the capacity of a subsidiary prosecutor , subsequently took over the prosecution in the above cases and lodged an indictment . The proceedings appear still to be pending .","On DATE , the Prosecutor also rejected the applicant \u2019s remaining criminal complaints ( see paragraph CARDINAL above ) , in particular those concerning alleged negligence at work aimed at certain prison personnel .","For the relevant domestic law and practice see paragraphs CARDINAL and CARDINAL - CARDINAL of the ORG \u2019s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and ORG , DATE ) , paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL\/CARDINAL and CARDINAL , CARDINAL DATE ) , and PERSON and Others , cited above , as well as paragraphs CARDINAL of NORP v. GPE ( no . CARDINAL\/CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2"],"non_violated_paragraphs":["2-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77580","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF YILDIRIM AND OTHERS v. TURKEY","importance":3,"conclusion":"Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . The first applicant lives in GPE and the remainder of the applicants live in GPE . The first applicant is the father , the second applicant is the wife and the remainder of the applicants are the children of PERSON , who was killed on DATE .","On DATE at TIME while PERSON was leaving the casino at FAC in the LOC area of GPE with his CARDINAL friends PERSON and Hac\u0131 Karay , CARDINAL people wearing bullet - proof vests and carrying firearms approached them . They introduced themselves as police officers and forced the CARDINAL men into CARDINAL cars .","The applicants were informed of the incident on DATE . They immediately contacted the PERSON public prosecutor and the NORP police headquarters to find out more about the kidnapping . They were informed that the QUANTITY persons had not been taken into custody . DATE , the brother of FAC filed a complaint with the PERSON public prosecutor and complained that his brother and his CARDINAL friends , PERSON and PERSON , had been abducted by people who had introduced themselves as police officers .","On DATE at TIME PERSON contacted the ORG gendarmerie station within the district of Bolu . He informed the gendarmes that he had seen CARDINAL bodies in an area near the river where he had gone to fish . At TIME the gendarmerie arrived at the scene . The positions of the bodies were recorded . No documents or other property were found on the bodies which might establish their identities . The corpses were taken to ORG in GPE for further examination .","On DATE a post mortem examination of PERSON body was carried out by CARDINAL doctors in the presence of the GPE public prosecutor . In the body examination report , it was noted that there was an ecchymosis measuring QUANTITY and an abrasion on the surface of the knee cap of the second body that was later identified as that of PERSON . It was further recorded that cyanosis was noted on the front part of the body , left leg upper part , left knee , genitals and the head . It was perceived that rigor mortis was fading . According to the report , when the body was touched , the skin peeled - which was most probably due to its damp condition . CARDINAL bullet entrance hole on right occipital area and burnt hair caused by a close - range shot and a bullet exit hole behind the right ear ( which damaged the tissue , internal tissue and bones ) were noted . A wide haematoma on the left eye due to trauma caused by a blunt object , fracture of the nose , and blood from the nostrils to the moustache area were also noticed . No other signs or abnormalities were observed either on the back of the body or the genital area . There were no documents to prove identification , nor were there any valuables or money . On the surface of the right hand and wrist a further ecchymosis measuring QUANTITY . in width was noted , which was probably caused when the hands were tied with a rope . The doctors further concluded that as the cause of death was clearly cerebral haemorrhage , there was no need to conduct a classical autopsy . The estimated time of death was given as TIME before the autopsy was carried out .","The bullets recovered from the bodies were sent for ballistic examination to ORG , which prepared CARDINAL forensic reports dated CARDINAL and DATE respectively . The report dated DATE showed that the CARDINAL spent bullet cases found at the scene of the killing had been discharged by CARDINAL different pistols . The report concluded that comparisons of the CARDINAL spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since DATE did not reveal any similarities .","The bullets were then sent to ORG which prepared its own report on DATE . The report stated that comparisons of the CARDINAL spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities .","On DATE the ORG public prosecutor conducted a search of the scene of the crime in the presence of PERSON , who had found the bodies . During the examination , a person named PERSON told the public prosecutor that she had heard a gun shot in TIME of DATE .","DATE the ORG gendarmerie took statements from CARDINAL persons .","On DATE the ORG public prosecutor took a statement from ORG , the doorman at FAC . In his statement , ORG explained that when PERSON , PERSON and Hac\u0131 Karay , who were regular customers at the hotel casino , left the hotel around CARDINAL a.m. on DATE , CARDINAL or CARDINAL persons , who had arrived in CARDINAL cars , approached them and conducted body searches holding them against the wall . The QUANTITY persons were then put into a dark - coloured Mercedes car with registration number CARDINAL ORG CARDINAL . The doorman stated that he had overheard CARDINAL of the men saying that they were police officers and that they would release the CARDINAL persons as soon as their statements were taken . The ORG was followed by a sports car . The doorman was unable to describe any of the men , since it was dark and he had seen them from a distance .","Also on DATE the ORG public prosecutor took the statement of ORG , a security guard at FAC . He stated that CARDINAL men , wearing waistcoats and carrying weapons , had approached the CARDINAL men as they walked out the door . They forced the QUANTITY men into the waiting cars , after having conducted body searches . This witness stated that CARDINAL of the cars was a sports car .","On DATE PERSON , a taxi driver waiting at the taxi rank outside FAC , gave his statement to the PERSON public prosecutor . He stated that while waiting for customers , he had noticed CARDINAL persons coming out of the casino . At that very moment , QUANTITY men walked towards them , made the QUANTITY persons face the wall and then searched them . Afterwards , the QUANTITY were put into the waiting cars . CARDINAL of the cars was a black - coloured ORG CARDINAL ORG . The second car was a cherry - red ORG . The witness also recalled that he had seen a third car , a sports car , which was driven away by one of the men wearing a waistcoat . The witness had been unable to see the licence plates of the cars or the faces of these men .","Again on DATE the ORG public prosecutor took a statement from another taxi driver , PERSON . He stated that as he approached the taxi rank outside the hotel , he saw some people forcing CARDINAL men into a black car .","On DATE ORG established that the car with registration number CARDINAL ORG CARDINAL was a burgundy coloured DATE model ORG and that it belonged to a certain FAC , who resided in GPE .","On DATE the first applicant , PERSON , gave a statement to the police . He stated that his son , PERSON , had been abducted from FAC . He explained that when ORG informed him about the CARDINAL dead bodies that had been found in GPE , he had identified his son 's body in ORG . He asked the authorities to find the perpetrators of this crime .","The preliminary enquiries led the ORG public prosecutor to issue a continuous search warrant on DATE , which was valid for DATE . The investigation file was forwarded to the ORG public prosecutor on CARDINAL DATE since the bodies were found within his area of jurisdiction .","As it had not been possible to establish the identities of the perpetrators , on DATE the ORG public prosecutor issued a permanent search warrant for the perpetrators of the killings , which would remain valid for DATE pursuant to LAW . The prosecutor further stated in his report that no evidence had been found during the investigation . Copies of this search warrant were distributed to the ORG gendarmerie and the GPE police as well as to the PERSON public prosecutor in GPE so that they could inform the GPE public prosecutor if they found the perpetrators . The prosecutor also instructed these authorities to continue carrying out meticulous searches for the perpetrators .","After the GPE incident , PERSON , who was the Head of ORG of ORG at the time , gave a statement to the public prosecutor in connection with the GPE incident . In his statement , he referred to the killings of FAC , PERSON and PERSON as the work of an illegal group . He further stated that , as that information was based on secret intelligence , he did not have any documents to prove the allegations . He was , however , of the opinion that , if an investigation was carried out into certain sources , it would be possible to find documents to verify the accuracy of these allegations . He was prepared to indicate those issues in respect of which it might be possible to find documents . Among his submissions , which were recorded in a CARDINAL - page statement , Mr PERSON stated , inter alia , the following :","\u201c The ORG and ORG ( PERSON , hereinafter ORG ) became concerned about the financial assistance being provided to the ORG from certain members of the NORP community , which they felt accounted for its increased activity DATE . They did not feel that they had enough evidence to bring charges and consequently some officers from the Police , ORG and ORG started talking about using different methods of dealing with certain members of the NORP community . A special team was formed for this purpose by , inter alia , the Chief of Police , PERSON and the Chief of ORG , PERSON . This team consisted both of members of ORG and certain civilians , including PERSON . The activities of this special team were known to other members of the ORG and the Intelligence Branch of the ORG ( the GPE ) . The kidnapping and the killing of PERSON and his friends formed part of such activities . It was established that these persons were helping the ORG financially . The way they were kidnapped and killed did not bear any resemblance to the activities of a ORG or other underground organisation known to us . Police identity cards and policing methods were used during the kidnapping of PERSON and his friends , otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped . To go through these checkpoints could only have been possible by making use of an official title \u201d .","On DATE PERSON was interrogated once again in GPE at the request of the GPE public prosecutor . In his statement , he stated that he did not know how and by whom the killings were carried out .","On DATE the police officers PERSON , PERSON and PERSON , who were in detention in connection with an investigation into the GPE incident , were shown to the eyewitnesses to the abduction , PERSON and ORG . However , the eyewitnesses stated that they had not seen these persons before .","The photo - fit drawings of the CARDINAL abductors made on the basis of the statements of the witnesses were compared with the photographs of PERSON , PERSON and PERSON at FAC . In the laboratory report , dated DATE , it was stated that the photo - fits did not have the necessary facial characteristics to make a positive comparison .","The photo - fits were also compared with the photograph of ORG , another suspect detained in connection with the GPE investigation . The report of the criminal laboratory dated DATE concluded that CARDINAL of the photo - fits bore resemblances to the photograph and that the person in the photo - fit could be PERSON . Accordingly , on DATE ORG issued an arrest warrant for PERSON . On DATE PERSON gave a statement to the public prosecutor . He stated that he was not in GPE DATE and DATE and that he did not know who had carried out the kidnapping on DATE . He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping . He explained that this fact could be easily verified because he had given an interview to a local television channel in PERSON at around the time of the kidnapping .","On DATE ORG rejected the appeal of ORG against the decision ordering his arrest for the kidnapping and killing of the applicants ' relative and the other CARDINAL persons . On CARDINAL DATE an identity parade was held in the prison where PERSON was being detained on remand . Both ORG , the doorman at FAC , and PERSON , the taxi driver who had witnessed the kidnapping on DATE , stated that PERSON , who was included in a line - up of QUANTITY persons , was not one of the men who had carried out the kidnapping . On DATE PERSON was questioned by the public prosecutor . Mr PERSON was a watchman working at ORG , which was on the road to FAC . He referred to his previous statement which he had given on DATE and stated that he had only seen a red car stop outside his office in the forest at TIME on DATE . CARDINAL person had left the car and filled a container with water from a fountain . When he was shown pictures of PERSON , the witness stated that the person he had seen did not look like PERSON .","On DATE the ORG public prosecutor took a decision of non - jurisdiction in respect of ORG . The prosecutor sent the investigation file to ORG which , in the prosecutor 's opinion , was the competent court to prosecute PERSON .","In the meantime , on DATE , ORG wrote to the management of ORG and requested that the video recordings of the security camera for TIME DATE be transmitted to them . In reply , on DATE the casino management informed the security department that the video recordings were kept for DATE and then erased . They further stated that as the casino was closed as of CARDINAL DATE , all video recordings were deleted .","On DATE the public prosecutor attached to ORG took a decision of non - jurisdiction in respect of PERSON . The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation . He therefore concluded that ORG did not have jurisdiction in this matter . The file was sent to the PERSON public prosecutor , who later transferred the file to the ORG public prosecutor .","On DATE the ORG public prosecutor , noting that ORG had been arrested and put on trial for the killings , decided to continue the search for the other perpetrators . The prosecutor also asked the PERSON public prosecutor to charge PERSON , who , according to the evidence gathered by the ORG public prosecutor , was CARDINAL of the perpetrators of the kidnappings and subsequent killings .","On DATE the PERSON public prosecutor filed a bill of indictment with ORG . The prosecutor alleged that the evidence justified the prosecution of PERSON for the murder of the applicant 's brother and his CARDINAL friends .","During the proceedings before ORG , the court took into consideration the indictment which had been submitted to ORG on DATE and which dealt with PERSON role in the GPE affair . ORG noted that , according to this indictment , PERSON was a notorious international drugs trafficker who held CARDINAL official service passports , CARDINAL of which were in the names of PERSON and ORG .","The D\u00fczce Assize Court finally noted that ORG name had been implicated in ORG which had concluded that the fight against terrorism had gained momentum in DATE when PERSON was appointed head of ORG in GPE . According to this ORG , there had been a number of unknown perpetrator murders in the area between GPE , Adapazar\u0131 and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the ORG . The ORG further stated that the killings of FAC , PERSON , ORG , ORG and ORG formed part of such activities .","Recalling that PERSON , PERSON and ORG had been kidnapped by CARDINAL persons and then killed in the area between GPE , Adapazar\u0131 and Bolu , ORG held that these killings resembled the above - mentioned killings in the same area . Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons , ORG concluded on DATE that it was precluded from examining the merits of the case for reasons of jurisdiction .","The case file was transferred to ORG which had jurisdiction to deal with cases involving organised crime . On DATE the court concluded that it too did not have jurisdiction to deal with the case . It held that , according to the PERSON public prosecutor 's indictment of CARDINAL DATE , ORG was charged with multiple murders . The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio . The case file was sent to ORG in order to resolve the dispute over jurisdiction .","On DATE ORG , upholding the decision of ORG , ruled that ORG had jurisdiction to deal with the case .","Seven hearings were held before ORG in the course of the criminal proceedings against ORG . The applicants joined the proceedings as a civil party . PERSON told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the NORP courts that the killings were being investigated . QUANTITY eyewitnesses , who had either seen the QUANTITY men being put into the cars outside the hotel in GPE or had seen the CARDINAL cars near the spot where these persons were killed , stated during the hearings that they had never seen PERSON before .","On DATE the ORG acquitted PERSON of the charge of multiple murders due to lack of evidence . On DATE ORG upheld this decision .","The parties submitted various documents with a view to substantiating their claims . These documents , in so far as they are relevant , may be listed as follows .","( i ) Scene of incident report , dated DATE , prepared by the NORP Commander .","( ii ) Second scene of incident report , dated DATE , prepared by the NORP Commander .","( iii ) Sketch of the scene of incident drawn by ORG , dated DATE .","( iv ) Decision of the ORG public prosecutor for a continuous search warrant , dated DATE .","( v ) A further scene of incident report , dated DATE , prepared by the ORG public prosecutor .","( vi ) Further statement of PERSON , dated DATE , who allegedly heard gun shots on DATE of the incident .","( vii ) A further sketch of incident , dated DATE , prepared by the ORG public prosecutor 's office .","( viii ) An expert report , dated DATE , stating that from the point where the witness , PERSON , had been standing on DATE of the incident it was probable that she might have heard gun shots .","( ix ) The letter of ORG , dated DATE , to the PERSON public prosecutor 's office .","( x ) Periodic follow - up reports ( CARDINAL in all ) of gendarmes DATE .","( xi ) PERSON public prosecutor 's decision to transfer the case file to GPE public prosecutor 's office , dated DATE .","( xii ) Report of ORG to the GPE police , dated DATE .","( xiii ) Report of identity parade , in which it is indicated that PERSON , PERSON and PERSON were shown to QUANTITY eyewitnesses to the kidnapping , PERSON and PERSON , and that no similarities with the perpetrators had been noted .","( xiv ) Letter of \u00c7\u0131nar Hotel Casino Management to ORG , dated DATE .","( xv ) Decision of the ORG public prosecutor to continue searching for the perpetrators of the killings , dated DATE .","( i ) Statements of ORG , doorman of ORG , dated DATE and DATE respectively , taken by the ORG public prosecutor 's office .","( ii ) Statement of PERSON , security guard of the FAC hotel , dated DATE , taken by the PERSON public prosecutor 's office .","( iii ) Statement of PERSON , dated DATE , taken by the PERSON public prosecutor 's office .","( iv ) Statements of ORG , dated DATE and DATE respectively , taken by the PERSON public prosecutor 's office .","( v ) Statement of PERSON , a villager , dated DATE , taken by ORG .","( vi ) Statements of PERSON , a villager , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( vii ) Statement of PERSON , a student , dated DATE , taken by ORG .","( viii ) Statement of PERSON , a student , dated DATE , taken by ORG .","( ix ) Statements of ORG , a villager , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( x ) Statement of PERSON , driver of the school bus , dated DATE , taken by ORG .","( xi ) Statements of PERSON , a villager , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xii ) Statements of PERSON , a villager , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xiii ) Statement of Fevzi PERSON , a villager , dated DATE , taken by ORG .","( xiv ) Statement of ORG , a villager , dated DATE , taken by ORG .","( xv ) Statements of \u0130rfan PERSON , a villager , dated DATE and CARDINAL June CARDINAL , taken by ORG and the public prosecutor respectively .","( xvi ) Statements of PERSON , a villager , dated DATE and CARDINAL DATE taken by ORG and the public prosecutor respectively .","( xvii ) Statements of PERSON , a villager , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xviii ) Statement of PERSON , a villager , dated DATE , taken by ORG .","( xix ) Statements of PERSON , a villager , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xx ) Statements of PERSON , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xxi ) Statement of PERSON , who works at the GPE national park , dated DATE , taken by ORG .","( xxii ) Statement of PERSON , who works at the GPE national park , dated DATE , taken by ORG .","( xxiii ) Statement of PERSON , dated DATE , taken by ORG .","( xxiv ) Statement of PERSON , dated DATE , taken by ORG .","( xxv ) Statement of PERSON , dated DATE , taken by ORG .","( xxvi ) Statements of PERSON , dated DATE and DATE , taken by ORG and the prosecutor .","( xxvii ) Statement of PERSON , dated DATE , taken by ORG .","( xxviii ) Statement of PERSON , dated DATE , taken by ORG .","( xxix ) Statement of \u0130lyas PERSON , dated DATE , taken by ORG .","( xxx ) Statements of PERSON , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xxxi ) Statement of PERSON , dated DATE , taken by ORG .","( xxxii ) Statement of Fevzi Ayd\u0131n , dated DATE , taken by ORG .","( xxxiii ) Statement of PERSON , dated DATE , taken by ORG .","( xxxiv ) Statements of PERSON , dated DATE and DATE , taken by ORG and the public prosecutor respectively .","( xxxv ) Statement of ORG , dated DATE , taken by ORG .","( xxxvi ) Statement of PERSON , the brother of PERSON , dated DATE , taken by ORG .","( xxxvii ) Statement of PERSON , the brother of PERSON , dated DATE , taken by the police .","( xxxviii ) Statement of ORG , dated DATE , taken by the police .","( i ) Body examination report , dated DATE .","( ii ) Photo - fits of CARDINAL of the perpetrators .","( iii ) Ballistics examination reports , dated DATE and DATE , prepared by ORG .","( iv ) Ballistics report dated DATE , prepared by ORG .","( v ) Ballistics examination report dated DATE , prepared by ORG .","( vi ) Ballistics examination report of ORG , dated DATE .","( vii ) Report of ORG dated DATE , comparing the photo - fits of the perpetrators to PERSON , PERSON and PERSON .","( i ) Statement of GPE , Head of ORG team , dated DATE .","( ii ) Statements of Hanefi Avc\u0131 , dated DATE , DATE , and DATE concerning the GPE incident .","( iii ) Report of ORG indicating that the photo - fits of the perpetrators had similarities with the photo of ORG .","( iv ) Statement of ORG , dated DATE .","( v ) Report of identity parade , dated DATE , which indicates that although ORG had been shown to CARDINAL eye witnesses to the kidnapping , Mr PERSON and PERSON , the witnesses concluded that they had not seen PERSON before .","( vi ) Decision of non - jurisdiction , delivered by the ORG public prosecutor concerning the prosecution of ORG , dated DATE . The file was transferred to ORG .","( vii ) Non - jurisdiction decision of ORG , dated DATE .","( viii ) Non - jurisdiction decision of ORG , dated DATE , and transfer of case file to ORG .","( ix ) Non - jurisdiction decision of ORG , dated DATE . The case was sent to ORG to settle the dispute on jurisdiction .","( x ) Decision of the Court of Cassation , dated DATE , settling the dispute over jurisdiction between ORG and ORG . The case file was sent to ORG .","( xi ) Minutes of the criminal proceedings against ORG before ORG .","( xii ) Decision of the D\u00fczce Assize Court , dated DATE , by which ORG was acquitted of the charges against him due to lack of evidence .","( xiii ) Judgment of ORG , dated DATE , upholding the decision of ORG dated DATE .","The applicants submitted a copy of the so - called \u201c ORG \u201d , which was produced at the request of the Prime Minister by Mr FAC , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .","The introduction states that the ORG was not based on a judicial investigation and did not constitute a formal investigation report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .","The ORG analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of \u201c informants \u201d supposedly serving the ORG , and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result , particularly in the drug - trafficking sphere . In the ORG , reference is made to the killing of the applicant 's brother :","\u201c All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms . These factors also operated in the murder of PERSON , a smuggler and pro - ORG activist . ( page CARDINAL ) . \u201d","The ORG concludes with numerous recommendations , such as improving co - ordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security force personnel implicated in illegal activities ; limiting the use of \u201c confessors \u201d ; reducing the number of village guards ; terminating the use of the Special Operations Bureau outside the south - east region and incorporating it into the police force outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .","For the relevant domestic law and background information on ORG , the ORG refers to the judgments of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["13","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96591","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2010,"docname":"CASE OF SECELEANU AND OTHERS v. ROMANIA","importance":4,"conclusion":"Violation of P1-1","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Josep Casadevall","text":["The first applicant was born in DATE and died in DATE . The other CARDINAL applicants were born in DATE respectively and live in GPE .","In DATE , GPE nos . CARDINAL and CARDINAL situated in GPE , PERSON no . CARDINAL - CARDINAL , the property of B.M. , were seized by ORG no . CARDINAL on nationalisation . PERSON was GPE \u2019s stepfather , GPE being the husband of the first applicant and the father of the other CARDINAL applicants .","In DATE GPE together with his brother ORG sought to have the seizure declared null and void and to recover ownership of the CARDINAL apartments .","On DATE ORG allowed the action by GPE and ordered restitutio in integrum of the CARDINAL apartments . However , on the basis of an inheritance certificate , it held that ORG had no standing in the proceedings .","An appeal by the authorities was dismissed on DATE by ORG , which considered the seizure as being unlawful . That judgment became final .","On DATE , at the request of GPE , ORG , having regard to the fact that the judgment of CARDINAL DATE had become enforceable , ordered the restitution of GPE CARDINAL and CARDINAL .","NORP Although GPE had secured judicial recognition of his property right , he was not able to recover possession of those apartments because the ORG had sold them on DATE and DATE respectively to the then tenants , under PERSON no . LANGUAGE .","In DATE GPE lodged CARDINAL requests to have the sales by the ORG declared null and void . GPE died in DATE and the applicants continued the proceedings .","On DATE ORG , by a final decision , dismissed the action regarding FAC , considering that the sale had complied with the provisions of Law no . DATE and that the former tenants had made the purchase in good faith .","On DATE the applicants applied to the administrative authorities for restitution of Apartment CARDINAL under PERSON no . CARDINAL\/CARDINAL governing immovable property wrongfully seized by the ORG . By a letter of DATE ORG informed the Agent of the Government that the file was incomplete as it lacked some of the necessary documents .","On DATE ORG , by a final decision , upheld the other action lodged by GPE in DATE and declared the sale of Apartment CARDINAL null and void .","On DATE ORG allowed a request by the second and third applicants to have the former tenants of Apartment CARDINAL evicted from that apartment .","On DATE ORG dismissed an appeal by the former tenants . The latter lodged a further appeal on points of law . The proceedings are still pending .","On DATE ORG , at the request of the former tenants of Apartment CARDINAL , sought the revision of the judgment of CARDINAL DATE ( cerere de revizuire ) , on the basis of alleged new documents attesting the lawfulness of the DATE nationalisation . The former tenants also intervened in the proceedings .","ORG dismissed that request as being out of time , by a final decision of DATE .","On DATE ORG again sought to have that judgment revised , following a request by the same former tenants of Apartment CARDINAL , alleging that there were new documents proving that GPE was not the only heir of PERSON The former tenants intervened in the proceedings .","On DATE ORG Instance dismissed the action as being out of time . There is nothing in the file to say that an appeal was lodged against that judgment .","On DATE , at the request of the former tenants , ORG attached to ORG brought proceedings to have that judgment revised , on the basis of an inheritance certificate from DATE , considered to be a new document attesting that GPE was not the only heir .","On DATE ORG Instance found that request inadmissible , since that certificate could have been obtained by the authorities , which were defendants in those proceedings , with minimum diligence .","NORP The prosecutor , the town council and the former tenants of Apartment CARDINAL appealed . Eventually , on DATE ORG dismissed their appeals as groundless or for lack of interest .","All the parties lodged a further appeal on points of law . According to the documents in the file , the proceedings are still pending .","On DATE ORG made a fresh attempt , at the request of the same former tenants who had intervened in the proceedings , to have the judgment of DATE revised . The former tenants informed ORG that the prosecutor had found that the signatures on the DATE application form ( see paragraph CARDINAL above ) were forged , since they belonged to the GPE lawyer , although it had been alleged that they belonged to the plaintiffs themselves . However , the prosecutor acknowledged that the lawyer \u2019s criminal responsibility had become time - barred .","On DATE ORG upheld the action and declared null and void the action introduced by those plaintiffs in DATE , for lack of a valid signature .","On DATE ORG considered an appeal by the applicants as being out of time .","On DATE ORG allowed a further appeal , on points of law , by the second and third applicants , quashed the previous judgment and sent the case back for fresh consideration of the ORG appeal against the judgment of DATE .","On DATE ORG allowed the ORG appeal against that judgment and dismissed the request for revision , considering that the application form had not represented relevant evidence in delivering that judgment .","ORG lodged a further appeal on points of law . By a letter of DATE the Government informed the ORG that the proceedings were still pending .","The relevant legal provisions and jurisprudence are described in the judgments ORG v. GPE ( [ ORG ] , no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , ECHR CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , \u00a7 \u00a7 DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) ; and PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115316","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2012,"docname":"DEM\u0130R v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Helen Keller;Neboj\u0161a Vu\u010dini\u0107;Peer Lorenzen","text":["The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr C. H\u00fcseyni , a lawyer practising in GPE .","ORG ( \u201c the Government \u201d ) are represented by their Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","NORP On DATE the applicants\u2019 DATE daughter PERSON , while walking with the second applicant , was severely injured and later died , after a rubbish container she had touched fell on top of her .","According to the post - mortem examination report , dated DATE , the cause of death was bleeding into the chest cavity ( haemothorax ) , possibly resulting from the falling of a rubbish container on the deceased . A classic autopsy was not deemed necessary .","On DATE the first applicant gave a statement to the police in which he stated , inter alia , that if the incident was the result of negligence on the part of the GPE then he wished to lodge a complaint .","On DATE the second applicant gave evidence to the police . She submitted that while they were walking home from a visit , her daughter had grabbed the open metal lid of the rubbish container and the rubbish container had fallen on top of her .","On DATE the second applicant \u2019s sister \u2013 an eye - witness to the events \u2013 also gave evidence along the same lines as the second applicant .","On DATE CARDINAL police officers inspected the area where the incident had taken place . They noted , inter alia , that the back wheels of the container were faulty and that the container had a tendency to fall backwards if the lid was pulled .","On DATE the prosecutor heard evidence from Mr PERSON , the municipal official responsible for rubbish containers , as a suspect . He maintained , inter alia , that he had been informed of the incident DATE after the events , that the municipality had given financial support to the family , and that the incident had been due to the applicants\u2019 daughter pulling the lid of the rubbish container .","On DATE , DATE , the prosecutor filed a bill of indictment charging the second applicant and Mr PERSON with causing death by negligence . The charges were brought under LAW ( no . CARDINAL ) .","Subsequently , criminal proceedings commenced before ORG .","On DATE ORG conducted an on - site inspection .","On DATE an expert report , prepared by PERSON , found that the degree of fault attributable to the second applicant for the death of the applicants\u2019 daughter was CARDINAL , and it was CARDINAL in respect of Mr PERSON The defendants objected to the report and a second expert report was commissioned by the court .","On DATE a second expert report , prepared by CARDINAL lawyer and CARDINAL experts on job safety , held that no fault could be attributed to the accused as the responsibility lay with GPE , on the basis of the notion of service fault ( hizmet kusuru ) , since the wheels of the rubbish container in question had been broken and it had been placed on an uneven surface .","On DATE ORG , on the basis of the expert report , acquitted the applicant of the charges against her . It also decided to halt the proceedings against Mr PERSON since no prior authorisation for his prosecution had been obtained , as required under domestic legislation .","On an unspecified date the prosecuting authorities requested LOC Office to grant authorisation for Mr PERSON \u2019s prosecution .","On DATE the ORG Office , after a preliminary investigation , declined to grant the necessary authorisation for Mr PERSON \u2019s prosecution . In its decision , ORG noted that under the provisions of the contract concluded between GPE and the ORG limited company ( the firm responsible for rubbish collection \u2013 hereinafter \u201c the company \u201d ) , it had been the responsibility of the company to repair the faulty container and to inform the municipal official with responsibility for rubbish containers about it .","On DATE ORG dismissed an objection by the prosecutor and upheld the decision of LOC .","On DATE the prosecutor , noting that authorisation to prosecute Mr PERSON had been refused , decided not to prosecute him .","On DATE the applicants had applied to ORG for compensation . Since no response was received , on CARDINAL DATE the applicants brought an action for compensation in ORG against the Municipality .","On DATE the first - instance court dismissed the applicants\u2019 claim for compensation on the ground that they had submitted it too late ( s\u00fcre a\u015f\u0131m\u0131 ) . In this connection , the court , referring to LAW no . CARDINAL , noted that it should have been obvious to the applicants that the responsibility of the GPE was engaged and therefore they should have applied to the relevant authority within DATE of the death of their child .","On DATE ORG , by a majority , upheld the judgment of the first - instance court . A request by the applicants for rectification of its judgment was also dismissed by the same court on DATE . On both accounts CARDINAL judge dissented on the ground , inter alia , that the applicants had become aware of the fault of the municipality only on receipt of the expert reports , and that therefore they were within the applicable time - limits .","On DATE the applicants lodged a criminal complaint with the ORG public prosecutor \u2019s office against Mr GPE , the authorised representative of the ORG limited company , requesting that he be prosecuted and convicted for the death of their daughter . They submitted that DATE had elapsed since the prosecutor \u2019s office had decided not to prosecute the municipal authorities and that no other steps had been taken since that time . In this connection , the applicants requested the prosecutor \u2019s office to act without further delay as the statutory time - limit for trial in respect of the offence was approaching .","Mr GPE gave evidence to the police on DATE , denying the allegations against him and claiming that the company was responsible only for collecting rubbish in and around the rubbish containers and nothing further .","In an indictment dated CARDINAL DATE ORG charged Mr GPE with causing death by negligence . The charges were brought under LAW , CARDINAL and CARDINAL of LAW .","On DATE the criminal proceedings against the accused began before ORG .","In the course of the trial the court heard evidence from the accused and the applicants , commissioned expert reports and conducted an on - site inspection .","The expert report prepared by PERSON , an inspector at ORG , concluded that the Municipality and the company responsible for collecting the rubbish were at fault .","On DATE the applicants joined the proceedings as civil parties ( m\u00fcdahil ) .","On DATE an expert report prepared by CARDINAL engineers , experts on job safety , concluded that the second applicant was at fault to the degree of CARDINAL for the death of the applicants\u2019 daughter as she had not been diligent , the Municipality was at fault CARDINAL for not conducting the necessary inspections , and Mr GPE was at fault CARDINAL for failing to replace the broken wheels of the rubbish container .","On DATE the first - instance court , relying on the findings of the expert reports of DATE and DATE , found that Mr GPE was guilty as charged and sentenced him to CARDINAL years\u2019 imprisonment . This sentence was subsequently reduced to CARDINAL months\u2019 imprisonment and commuted to a fine .","On DATE ORG quashed the decision of the first - instance court and discontinued the proceedings against the accused on the ground that the prosecution of the offence had become timebarred under LAW \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ( no . CARDINAL ) and LAW .","On DATE the applicants initiated compensation proceedings against the company on the ground that the latter was responsible for the death of their daughter . The first applicant requested MONEY ( TRL ) in respect of pecuniary damage and GPE CARDINAL in respect of nonpecuniary damage . The second applicant requested FAC in respect of pecuniary damage and FAC in respect of non - pecuniary damage . The applicants further requested , on behalf of their remaining CARDINAL children , GPE CARDINAL,CARDINAL in respect of non - pecuniary damage . They further requested the court to issue a temporary injunction banning the sale or transfer of the cars belonging to the company .","The company requested the court to dismiss the proceedings as they considered that no fault could be attributed to it .","On DATE the compensation proceedings commenced before ORG . Regular hearings were held . The court examined the case - file of the criminal proceedings brought against the company representative and commissioned an additional expert report to examine the discrepancies between the expert reports contained in the casefile .","At a hearing on DATE the first - instance court issued an injunction in respect of CARDINAL cars belonging to the company .","On DATE an expert report prepared by PERSON concluded that both the GPE and the company were PERCENT at fault .","On DATE an expert report prepared by a lawyer was submitted to the court . This report concerned the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the expert report of DATE .","Another expert report prepared by CARDINAL engineers , experts on job safety , concluded , on DATE , that the company was at fault in the circumstances of the present case . They considered that since the municipality had not been informed of the condition of the rubbish container , no fault could be attributed to it . The report further concluded that no fault could be attributed to the second applicant , as she had been holding the deceased \u2019s hand at the time of the incident .","At a hearing held on DATE the first - instance court decided to commission an additional expert report , as it considered the conclusions as to the attribution of fault in the earlier reports were divergent .","On DATE an expert report prepared by CARDINAL engineers , experts on job safety , was submitted to the court . That report concluded that the company was PERCENT at fault for not preventing its workers from misusing the containers , for not supervising the work , for the placing of the container on an uneven surface , and for the failure to inform the authorities about the broken wheel . It considered that Mr GPE was PERCENT at fault for not ensuring general work discipline . The second applicant was PERCENT at fault for not preventing the child from touching the container , and the Municipality was PERCENT at fault for not placing the container on an even surface , for not ensuring the container did not overbalance when the lid was open , for not checking or prescribing and taking measures to prevent misuse of the container from causing harm , and for not checking whether the relevant work was being conducted in accordance with the provisions of the contract .","On DATE an additional expert report was prepared by a lawyer , calculating the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the latest expert report .","On DATE and CARDINAL DATE the applicants requested the court to broaden the case so as to include Mr GPE and the GPE as co - defendants in the compensation claim .","On DATE the first - instance court partially ruled in the applicants\u2019 favour . It first held that the second applicant was at fault for letting her child get too close to a rubbish container in the middle of the night ; the municipality was at fault for several reasons , such as not placing the bin on a proper surface , not ensuring that its lid was properly functional , and not checking whether the rubbish container posed a danger , or whether the company was abiding by its contractual obligations . It found that the company was at fault for various reasons , such as not enforcing work discipline , not preventing the misuse of its rubbish containers , and failing to monitor and inform the relevant authorities about faulty rubbish containers . It considered that the responsibility of the company for the incident was PERCENT . It thus awarded the first applicant GPE CARDINAL,CARDINAL.CARDINAL in respect of pecuniary damage and GPE CARDINAL in respect of non - pecuniary damage , and the second applicant FAC in respect of pecuniary damage and GPE CARDINAL in respect of non - pecuniary damage . It further awarded TRL CARDINAL in respect of nonpecuniary damage to each of the ORG surviving children . The court fixed the interest at the statutory rate applicable on DATE , the date of the incident . Finally , the court dismissed the ORG request for the broadening of the case to include Mr GPE and the GPE as codefendants , as no such procedure existed in domestic law .","The applicants appealed .","On DATE the applicants commenced enforcement proceedings in order to claim the sums due , which amounted in total to TRL PERSON at the time . The ORG submitted correspondence between the enforcement office and various institutions , notably banks , concerning whether the company had any existing assets . According to the record prepared by PERSON , a deputy enforcement officer , on DATE no movable or immovable property was registered under the name of the firm and the case - file was closed on DATE .","On DATE ORG rectified and upheld the decision of the first - instance court .","DATE . On DATE the applicants initiated compensation proceedings against ORG . The latter raised the objection that the court was prevented from examining the case as the statutory time - limit had expired .","On DATE ORG held that the statutory time - limit for examining a compensation claim arising out of a tortious act ( haks\u0131z fiil ) had expired . Referring to LAW , the court noted that the liability of the municipality as regards the events had been held to be PERCENT in the previous compensation proceedings , and thus the applicants had failed to lodge an application with the court against GPE within DATE of the date on which they had learned of the damage and its perpetrator .","The relevant domestic law applicable at the time of the events is as follows .","DATE LAW provides that everyone has the right to life .","Article CARDINAL \u00a7 CARDINAL of LAW ( no . CARDINAL ) reads :","\u201c Anyone who , through carelessness , negligence or inexperience in his profession or craft , or through non - compliance with laws , orders or instructions , causes the death of another shall be liable to a term of imprisonment of DATE and to a fine of CARDINAL . \u201d","A prosecution for an offence punishable by a prison sentence of a maximum of DATE must be brought within DATE ( LAW ( no . CARDINAL ) ) .","At the time of the incident , under LAW , a public prosecutor who , in any manner whatsoever , was informed of a situation which gave rise to a suspicion that an offence had been committed was required to investigate the facts with a view to deciding whether or not criminal proceedings should be brought ( LAW ) . However , the public prosecutor \u2019s jurisdiction was restricted ratione personae at the preliminary investigation stage if the suspected offender was a ORG employee or public servant and the alleged offence had been committed during the exercise of official duties . Law no . DATE ( PERSON on the prosecution of civil servants and public officials ) determined which authorities were empowered to give permission for a ORG employee or public servant to be prosecuted for an offence committed in the exercise of official duties and regulated the procedure to be followed . In such cases , it was for the competent authority ( depending on the suspect \u2019s status ) to conduct a preliminary investigation and , consequently , to decide whether criminal proceedings should be opened . The decision given by the relevant authority could be challenged before ORG . A decision not to prosecute was automatically reviewed by that court .","On DATE a new Criminal Code ( Law no . DATE ) entered into force . Under LAW of the new LAW a person causing the death of another person by negligence was liable to a term of imprisonment of DATE .","Section CARDINAL of Law no . CARDINAL ( Code on Administrative Procedure ) provides that persons who have suffered damage on account of a wrongful act of the administration must apply to the relevant authority for rectification of the situation within DATE on which they were notified or otherwise learned of the impugned act , before bringing a lawsuit . Should all or part of the claim be dismissed , or if no reply is received within DATE , the victim may bring administrative proceedings .","Under LAW ( no . CARDINAL ) , anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss ( ORG CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant \u2019s guilt ( Article CARDINAL ) .","In civil law , the claim for damages must be initiated within DATE of the date when the prejudiced party has received knowledge of the damage and of the person liable , but in any case within DATE of the date when the act which caused the damage took place ( Article CARDINAL of LAW ( no . CARDINAL ) ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99449","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2010,"docname":"EL MORABIT v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["NORP The applicant , Mr PERSON , is a NORP national who was born on DATE . His current place of residence is ORG , GPE , his place of birth . He was represented before the ORG by Mr M. Wijngaarden , a lawyer practising in GPE .","ORG and as apparent from information available to the public , may be summarised as follows .","NORP The applicant entered the GPE in DATE , at DATE , for the purpose of lawful family reunion . He was granted a residence permit ( vergunning tot verblijf ) for that purpose , which was extended several times at his request until the events complained of .","After his arrival in the GPE , the applicant went to school for a time ; he later became unemployed .","NORP In DATE the applicant was arrested on suspicion of belonging to an NORP terrorist group known as the \u201c NORP group \u201d ( GPE ) , from its being based in the town of GPE which is the place of residence of the Queen ( Hofstad , town where the royal residence is located ) .","On DATE the then Minister for ORG ( Minister PERSON Integratie ; \u201c the Minister \u201d ) notified the applicant of her intention to withdraw his residence permit on the ground that he posed a threat for national security . That finding was based on an individual intelligence report ( individueel ambtsbericht ) dated DATE that ORG ( Algemene Inlichtingen- en ORG ; \u201c ORG \u201d ) had submitted , and which was appended .","According to the intelligence report of DATE , the applicant was a member of a group led by a NORP national who recruited radical NORP youths . The group , of which the applicant was stated to be one of the more radical members , held regular meetings , during which the NORP preached NORP extremism and violent jihad ( holy war ) . The applicant was understood to be in the possession of tape recordings calling for armed jihad and stating that it was forbidden to have dealings with \u201c NORP dogs \u201d ( dat omgang met \u201c christenhonden \u201d is verboden ) . The applicant was stated to have radicalised a young woman of NORP origin to the point where she had taken to wearing a burka and refused to pray with her own family . The report identified other members of the group by name ; of these , the best known was PERSON , who was later convicted of the murder of the film director PERSON .","An earlier intelligence report , dated DATE and on which the later intelligence report was based in part , described the members of the group meeting to discuss and plan violent jihad , and watching and expressing approval of films showing the beheading of persons including hostages in GPE .","On DATE the applicant , through his counsel , submitted written comments denying his involvement in the planning of unlawful violence , arguing that the ORG information was unreliable and unverifiable , and that the measure intended was a disproportionate interference in his family life .","On DATE the Minister gave a decision withdrawing the applicant 's residence permit , essentially on the same grounds as those stated in the original notification . The following day she gave an additional decision declaring the applicant an undesirable alien , entailing the imposition of an exclusion order ( ongewenste vreemdeling ) .","On DATE the applicant applied for an interim measure ( voorlopige voorziening ) aimed at preventing his deportation pending the outcome of the proceedings . He lodged an objection ( bezwaarschrift ) against each of the CARDINAL decisions on DATE .","On DATE the applicant supplemented his objection with a statement of grounds in which he argued that the ORG information was unreliable and that he could not be expected to return to GPE and accept permanent separation from his parents . In a separate letter of DATE he asked to see the information on which the ORG intelligence report was based .","On DATE the applicant asked for the decision on his objection to be deferred until he had had a chance to study the ORG information . This request was repeated on DATE and DATE . On DATE , however , the Minister for ORG replied that there was no reason not to proceed .","On DATE the Minister gave CARDINAL separate decisions dismissing the objections . The conclusions reached by the ORG were presumed correct ; the immigration authorities were not duty bound to undertake any further investigation of their own .","The applicant appealed to ORG ( rechtbank ) of GPE against both decisions on DATE .","On DATE , in criminal proceedings distinct from the immigration proceedings , ORG of GPE convicted the applicant of membership of a criminal organisation and membership of an organisation aiming to commit terrorist crimes and sentenced him to DATE imprisonment .","On DATE ORG of GPE , sitting in GPE , gave an order for a provisional measure that would allow the applicant to await the outcome of the proceedings in the GPE . In separate decisions , it declared the appeals well - founded ; it considered the ORG intelligence reports to be insufficiently \u201c objective and transparent \u201d ( objectief en inzichtelijk ) . The Minister 's decisions were annulled and the Minister was ordered to decide afresh .","On DATE the Security and Integrity Office ( Bureau PERSON ) of ORG ( Immigratie- en Naturalisatiedienst ) submitted a written statement to the Minister to the effect that , after examination of the documents underlying the reports , it appeared that the ORG intelligence investigation had met applicable standards of due care as regards content and procedure followed and was transparent .","NORP The Minister appealed to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) against ORG decisions on DATE .","NORP In parallel , the Minister gave a new decision on the objection against the withdrawal of the applicant 's residence permit on DATE . She accepted that the ORG reports were adequate as to their objectivity , impartiality and thoroughness and that the ORG had to protect their sources of information . In so far as the applicant had denied the accuracy of the ORG reports , he had not given any relevant arguments .","The following day the Minister gave a new decision in much the same terms in which she dismissed the objection against the decision to impose an exclusion order on the applicant .","On DATE the President of ORG of ORG declared the Minister 's appeal of DATE well - founded . He annulled ORG decisions of DATE and remitted the cases to ORG . In the same decision he annulled the Minister 's decisions of DATE , which had been adopted pursuant to ORG decision of DATE , and ordered the deferral of the applicant 's deportation until DATE so that the applicant had a realistic chance to seek a provisional measure from ORG itself .","The applicant applied to ORG of GPE for a stay of deportation on DATE . In his statement of grounds , submitted the following day , he now relied on Article CARDINAL , arguing that the NORP authorities treated terrorist suspects harshly . On DATE ORG granted an interim measure allowing the applicant to await the outcome of his appeals in the GPE .","Having held a hearing on DATE , ORG decided that it needed to study the information on which the conclusions of the ORG intelligence reports were based . To that end , it reopened the case .","ORG gave its decision on DATE . Having studied the ORG information , it found that the ORG 's conclusions had an adequate basis in fact ; there was no need to reopen the discussions on that score . A threat relevant to LAW in the event of the applicant 's return to GPE had not been established . The applicant 's appeal against the withdrawal of his residence permit was held to be inadmissible in view of the decision to impose an exclusion order on the applicant ; the appeal against the latter decision was dismissed as unfounded .","The applicant lodged an appeal with ORG of ORG , which on DATE dismissed it , referring to standing case - law .","The applicant was deported to GPE on DATE .","The applicant appealed against his conviction ( paragraph CARDINAL above ) . On DATE ORG of The GPE quashed the conviction and acquitted the applicant .","ORG lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) against the acquittal . On DATE ORG quashed the judgment of ORG and remitted the case to ORG of GPE where it remains pending .","On DATE ORG adopted a list of persons , groups and entities to be subjected to restrictive measures pursuant to ORG ( ORG ) No CARDINAL\/CARDINAL of DATE on specific restrictive measures directed against certain persons and entities with a view to combating terrorism ( ORG CARDINAL\/CARDINAL\/EC ) . This list was updated on DATE ( ORG CARDINAL\/CARDINAL\/EC ) . These lists mentioned the applicant as follows :","\u201c PERSON , PERSON , born CARDINAL in PERSON ( GPE ) , passport ( GPE ) No . PERSON ( Member of the ' PERSON ' ) \u201d","As provided for in Council Regulation ( ORG ) ORG , this restricted the applicant 's use of financial services and of any assets which he might possess , access to these being permissible only for limited purposes including the fulfilment of essential human needs and the payment of taxes .","The applicant brought actions in ORG ( now re - named ORG ; the first - instance body of ORG of ORG , as it was named at the time ) for annulment of ORG DATE and CARDINAL in so far as they included his name ( Cases T-CARDINAL\/CARDINAL and T-CARDINAL\/CARDINAL respectively ) . ORG and ORG sought , and were granted , permission to intervene .","On DATE ORG Instance dismissed both actions and ordered the applicant to pay his own costs and those of the ORG .","Section CARDINAL of LAW ( Vreemdelingenwet DATE ) provides that a foreign national may be declared an undesirable alien , entailing the imposition of an exclusion order , on the ground , inter alia , that he or she poses a danger to national security . An alien on whom an exclusion order has been imposed can not be lawfully resident in the GPE .","An exclusion order may be revoked , upon request , if the alien concerned has been residing outside the GPE for a period of DATE ( section DATE of LAW ) . Such revocation entitles the alien to seek readmission to GPE territory subject to the conditions that are applicable to every alien ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68348","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2005,"docname":"CASE OF SARDINAS ALBO v. ITALY","importance":3,"conclusion":"Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed","judges":"Christos Rozakis","text":["The applicant was born in DATE and is currently detained in GPE .","On DATE the applicant , accused of international drugtrafficking , was arrested in GPE . He was in possession of a false passport in the name of PERSON .","On DATE the applicant was questioned by ORG . Criminal proceedings were instituted against PERSON .","By an order of CARDINAL DATE , the GPE investigating judge remanded the applicant in custody . He observed that there was strong evidence of guilt against the applicant , who was in possession of documents showing that he was in contact with persons connected to drug - trafficking . Given the amount of cocaine ( QUANTITY ) imported by those persons and the fact that they were probably part of a major criminal organisation , the investigating judge considered that there was a serious risk of re - offending and a risk of tampering with evidence . Moreover , the applicant had declared that he was a tourist and that he had no links whatsoever to GPE . It was therefore reasonable to believe that he would try to abscond in order to avoid the consequences of the legal proceedings commenced against him .","The applicant challenged the order before ORG , which dismissed his appeal on DATE . ORG observed that new evidence had emerged against the applicant , who had been recognised as the person who had rented a deposit box in which the cocaine had been found , had helped to move a container into the deposit box and was facing another set of proceedings for drug - trafficking pending in ORG . ORG held that there was a serious risk of his re - offending , as evidenced by the fact that the applicant was part of a powerful criminal organisation . Moreover , if he were released , the applicant might try to get in touch with the other members of the organisation in order to tell them about the investigations with a view to tampering with the evidence . Finally , there was a risk of his absconding , confirmed by the fact that the applicant had given a different name to ORG judicial authorities .","The applicant did not appeal on points of law to ORG against the order of DATE .","On DATE ORG requested that the applicant and CARDINAL other persons be committed for trial . The preliminary hearing was scheduled for DATE , on which date the applicant was committed for trial , to begin on DATE before ORG .","In a judgment of DATE , filed with the registry on DATE , ORG declared that the case was outside its jurisdiction ratione loci and ordered the transmission of the case - file to ORG .","In a decision of CARDINAL DATE the Genoa investigating judge extended the applicant \u2019s detention on remand . After confirming the observations made in the orders of CARDINAL DATE and DATE , he noted that further investigation had revealed that the applicant had played an active role in renting the deposit box where the cocaine had been found and in sending the container in which it was concealed and had kept in contact with the other defendants who had been caught by the police in the act of removing the cocaine from the container . The investigating judge considered moreover that there was a risk of his re - offending and absconding after having committed the offence . He noted in that respect that another set of criminal proceedings had been instituted against the applicant in ORG , and that the accused had tried to abscond , producing false identification papers .","The applicant did not appeal against the decision of CARDINAL DATE .","On DATE ORG attached to ORG forwarded the case - file to ORG .","In a judgment of DATE , filed with the registry on DATE , ORG found the applicant guilty of the charges against him and sentenced him to DATE imprisonment and imposed a fine of MONEY ( ITL ) . The applicant \u2019s name was established as being in reality PERSON .","On DATE the applicant appealed against that judgment . He challenged , in particular , the jurisdiction of ORG .","The hearing was scheduled for DATE . On that date , the applicant concluded a plea bargain ( applicazione della pena su richiesta delle parti ) with ORG attached to ORG . The applicant agreed to withdraw his appeal in return for a reduction in his sentence .","In a judgment of DATE , ORG recognized the agreement reached by the parties and reduced the applicant \u2019s sentence to TIME years\u2019 imprisonment and a fine of ITL CARDINAL .","NORP The applicant \u2019s appeal on points of law was declared inadmissible by ORG in a judgment of DATE .","Meanwhile , on DATE , ORG had requested that the applicant be placed in detention with a view to his extradition to GPE . In an order of CARDINAL DATE ORG had provisionally granted the request .","On CARDINAL DATE the applicant was interviewed by the President of ORG . He declared that he did not agree to be extradited since the absence of diplomatic relations between GPE and GPE could result in his being detained for an indefinite period of time ( a situation commonly known as \u201c limbo incarceration \u201d ) .","On CARDINAL DATE the applicant challenged the order of CARDINAL DATE . He contested in particular the authorities\u2019 assumption that it was necessary to prevent him from absconding before the extradition decision could be enforced . By an order of CARDINAL DATE ORG rejected his claim . The applicant \u2019s appeal on points of law was declared inadmissible .","On DATE GPE authorities requested the applicant \u2019s extradition for offences related to drug - trafficking ( importation and possession of QUANTITY of cocaine ) .","On DATE ORG requested that extradition be granted . It was noted that an arrest warrant had been issued against the applicant on DATE by ORG and that in the light of the evidence produced by GPE authorities it was reasonable to believe that the applicant was guilty of the offences with which he had been charged .","In a judgment of DATE , filed with the registry on DATE , ORG ruled in favour of extradition .","On DATE the applicant appealed on points of law . He submitted that NORP nationals incurred a serious risk of indefinite detention in GPE .","By a judgment of DATE , filed with the registry on DATE , ORG dismissed the applicant \u2019s appeal .","On DATE ORG granted the extradition request . However , noting that criminal proceedings against the applicant were then pending before ORG , ORG decided , according to LAW hereinafter , the \u201c ORG \u201d ) , to suspend the enforcement of the extradition .","Meanwhile GPE authorities had once again requested the applicant \u2019s extradition in relation to a charge of false statements . The applicant had allegedly declared that his name was PERSON in order to obtain a GPE passport and had produced evidence corroborating the assertion .","By an order of CARDINAL DATE ORG decided that the applicant should be detained with a view to extradition . It noted , in particular , that the applicant had already left the jurisdiction of the GPE courts and that there was a specific risk of his absconding . The order indicated that the applicant was a NORP citizen who , in DATE , had obtained a permanent residence permit in GPE .","On DATE the applicant appealed on points of law against the order of DATE .","By a judgment of DATE , filed with the registry on DATE , ORG declared the applicant \u2019s appeal inadmissible because it had been lodged out of time .","By a judgment of DATE , filed with the registry on CARDINAL DATE CARDINAL , ORG ruled in favour of extradition .","The applicant appealed on points of law . By a judgment of DATE , filed with the registry on DATE , ORG , considering that ORG had duly given reasons for its decision , dismissed the applicant \u2019s appeal .","By an order of CARDINAL DATE ORG granted the extradition request . However , noting that criminal proceedings against the applicant were still pending , ORG decided to suspend enforcement of the extradition .","The first paragraph of LAW ORG provides that \u201c no one shall be detained pending trial unless there is serious evidence of his guilt \u201d .","Article CARDINAL ORG goes on to provide that detention pending trial may be ordered : \u201c ( a ) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ... ; ( b ) if the accused has absconded or there is a real danger of his absconding , provided that the court considers that , if convicted , he will be liable to a prison sentence of DATE ; and ( c ) where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ... \u201d","Under LAW ORG , precautionary measures should be adapted , in each individual case , to the nature and degree of the conditions set out in LAW ; they must be proportionate to the seriousness of the offence and to the sanction which is likely to be applied . Detention pending trial may be ordered only if all other precautionary measures appear to be inadequate .","Article CARDINAL ORG provides inter alia that a detention order must contain an explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt , including the factual elements on which the evidence is based and the grounds for its relevance , and must also take into account the time elapsed since the offence was committed .","According to ORG case - law , the existence of evidence of guilt and of the reasons for detention set out in LAW ORG should be re - examined in the light of any new relevant facts , such as the time elapsed since the beginning of the enforcement of the precautionary measure ( see the Fourth Section \u2019s judgment no . CARDINAL of DATE in the case of PERSON ) .","Article CARDINAL CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings and according to the seriousness of the offences with which the accused is charged .","In DATE ORG held that the LAW provisions were applicable in GPE , provided that they were drafted in sufficiently precise terms ( see ORG judgment no . CARDINAL of CARDINAL DATE in the case of PERSON ) . According to ORG , the ORG is a special source of law which can not be modified by ordinary law ( judgment no . CARDINAL of DATE ) .","However , in more recent decisions , ORG has held that LAW is not directly applicable in GPE , by reason of its general and indeterminate character ( natura programmatica NORP see , in particular , the following judgments : no . CARDINAL of CARDINAL DATE ( First Section ) in the case of GPE ; no . CARDINAL of CARDINAL DATE ( First Section ) in the case of PERSON ; no . DATE ( Fourth Section ) in the case of PERSON ) .","According to LAW ORG \u201c The enforcement of extradition shall be suspended if the person to be extradited ought to be judged [ in GPE ] or must serve [ in GPE ] a sentence imposed on him or her for offences committed before or after the offence in respect of which the extradition has been granted ... \u201d ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86729","languageisocode":"ENG","respondent":"ROU;GBR","branch":"CHAMBER","date":2008,"docname":"CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 6-1 (Romania);No violation of Art. 6-1 (the UK);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","The applicant married PERSON ( hereinafter referred to as \u201c the mother \u201d ) , also a NORP national , in DATE . In DATE their son C.A. ( hereinafter referred to as \u201c the child \u201d ) was born .","NORP In DATE they divorced and according to the divorce agreement between them , endorsed by a final court judgment , the mother was to have custody of the child , while the applicant obtained a right of access of DATE per year and was to pay a DATE allowance .","In DATE the mother travelled to GPE to commence studying for a Master degree in Business and Administration and left the child in GPE with her parents .","In DATE the mother married a NORP national . She later returned to GPE and on DATE , without informing the applicant , took the child with her to GPE .","The applicant found out about the child \u2019s removal from GPE to GPE in DATE .","On DATE he instituted proceedings in GPE before ORG , ORG ( \u201c the High Court \u201d ) , under LAW October CARDINAL on ORG ( \u201c LAW ) . The child and the mother were located by the NORP authorities ; however , their place of residence was not disclosed to the applicant .","A directions hearing was held on DATE before ORG at which the parties were requested to file observations on the question whether the removal of the child from GPE was wrongful under NORP law within the meaning of LAW . The judge in charge of the case also directed that the matter be set down for final hearing on DATE .","On DATE the parties received permission to file further evidence .","By the time of the next hearing , on DATE , ORG was presented by the applicant with documentary evidence emanating from ORG , ORG , ORG and the ORG , according to which the child \u2019s removal was wrongful under NORP law . However , the court was not convinced and , in accordance with LAW , requested a NORP court decision on the matter .","On DATE the applicant instituted civil proceedings before ORG ( \u201c ORG \u201d ) seeking a ruling that the child \u2019s removal from GPE had been illegal .","On DATE the applicant introduced a new application before the same court seeking a ruling that the child \u2019s removal was contrary to LAW because he also had custody rights over the child .","On DATE ORG held the first hearing in respect of the applicant \u2019s first action ; however , as a result of the mother \u2019s request for an adjournment , the proceedings were adjourned until DATE .","On DATE ORG wrote to ORG in GPE , informing it that the NORP courts had exclusive competence in issuing decisions in accordance with LAW .","On DATE ORG in GPE held the first hearing in respect of the second action and adjourned the case on the grounds that the applicant had failed to sign the application and that the mother had failed to sign her request for an adjournment .","On DATE ORG in GPE resumed its examination of the case . The judge in charge of the case indicated that since his decision of DATE a number of documents from GPE had become available which seemed to indicate that the child \u2019s removal from GPE by his mother was wrongful , and that , had these documents been available earlier , he would not have sought a declaration under LAW . Nevertheless , in view of the fact that the proceedings in GPE had commenced , and in view of the letter from ORG of DATE it was decided to adjourn the proceedings to a date after DATE ( the date on which ORG in GPE was to hear the case ) . The judge expressed concern about the time that had elapsed in the proceedings and indicated that if the DATE hearing in GPE was not conclusive he would discharge the order he had made in DATE and proceed to adjudication .","On DATE the mother submitted her observations concerning the applicant \u2019s actions in the NORP proceedings and introduced a counter - action seeking , inter alia , a ruling that the applicant did not have a right of custody over the child and that he did not have the right to decide on the child \u2019s place of domicile .","On DATE ORG in GPE adjourned the hearing at the applicant \u2019s request so that he could examine the mother \u2019s observations and the counter - action lodged by her . On DATE CARDINAL actions lodged by the applicant and the mother \u2019s counter - action were joined .","On DATE the judge at ORG in GPE , having learned that the final determination of the case before the NORP court had yet again been put back , made an order that the final hearing in GPE should take place \u201c as a matter of urgency \u201d in DATE .","On DATE ORG in GPE adopted a final ruling in the case and declared inadmissible the applicant \u2019s actions without entering into the merits of the case . It decided not to examine the mother \u2019s counter - action . Both parties appealed against the judgment .","On DATE the proceedings in GPE were adjourned at the request of the parties to DATE to allow time for receipt of the written reasons from the NORP court .","On DATE ORG in GPE delivered its judgment and on CARDINAL and DATE the parties appealed against it .","On DATE the case file was transmitted by ORG to ORG and the latter fixed DATE as the date of the hearing in the case .","On DATE the applicant requested ORG to speed up the proceedings in view of the proceedings pending in GPE . His request was granted and the date of the hearing was set for DATE .","On DATE the applicant applied for an adjournment in the ORG proceedings in GPE pending determination of the case by ORG . His request was granted and the judge in charge of the case ordered that the final hearing should take place as soon as possible after receipt of an authorised translation of the decision of ORG .","On DATE the mother filed her observations with ORG .","On DATE the applicant \u2019s representative requested an adjournment from ORG in order to study the mother \u2019s observations .","On CARDINAL DATE ORG held a hearing in the case and heard submissions from the parties . The pronouncement of the judgment was adjourned to CARDINAL DATE .","On DATE the Fourth Section of the Bucharest Court of Appeal quashed the judgment of the first - instance court in part . It examined the applicant \u2019s action on the merits and dismissed it as ill - founded , finding that the applicant did not have custody rights over the child and that the child \u2019s removal from GPE was legal under domestic law and not wrongful within the meaning of LAW . The judgment of ORG was communicated to the parties on DATE .","On DATE the applicant lodged an appeal on points of law with ORG ( \u00cenalta Curte de Casa\u0163ie \u015fi Justi\u0163ie ) against the judgment of ORG .","On DATE the case file was sent by ORG to ORG of GPE .","On CARDINAL occasions DATE the applicant lodged requests with ORG asking it for a speedier examination of his case on grounds of the urgency of the matter .","It appears that during that period LAW was undergoing changes and that it was not clear which court was competent under the new rules to examine the applicant \u2019s appeal on points of law . On DATE ORG declined jurisdiction in favour of ORG and on DATE the case file was sent back to that court .","ORG scheduled the first hearing in the case for DATE .","On DATE the applicant requested that the proceedings be speeded up in view of an upcoming hearing in the GPE proceedings . On DATE the applicant \u2019s request was upheld and the hearing was rescheduled for CARDINAL DATE .","NORP On DATE the Third Section of ORG held a hearing ; however , it decided to adjourn the proceedings to DATE .","On DATE ORG resumed the examination of the case and dismissed the applicant \u2019s appeal on points of law . It found , inter alia , that , under NORP family law , after divorce the parents of a child do not have equal rights in respect of their child . In particular , the parent who has custody of the child does not need the consent of the other parent in respect of measures concerning the child except for matters relating to adoption and\/or losing or re - obtaining NORP nationality . The parent who does not enjoy custody can not veto a decision of the other parent concerning the child \u2019s domicile . Accordingly , the removal of the child from GPE by the mother was lawful under NORP law .","In DATE , after the NORP proceedings had ended and the final NORP judgment had become available in LANGUAGE , ORG in GPE resumed its proceedings and listed the case for a final hearing on DATE .","On DATE the judge in charge of the case at ORG in GPE acceded to the applicant \u2019s application for an expert opinion on the law of GPE . The expert was to file his report by DATE .","Both parties agreed to instruct PERSON to draft a report on NORP family law and on DATE ORG confirmed the joint instructions to the expert and the time for lodging of the expert report was extended to DATE with the final hearing listed for DATE .","On DATE ORG in GPE extended the time - limit for the expert report to DATE and relisted the case for DATE .","The expert \u2019s report was ready on DATE ; however , the parties wished to put more questions to him . Therefore , on DATE , on an application from the applicant , the court adjourned the proceedings to CARDINAL DATE and made further procedural directions in relation to any further questions to be put to the expert .","On DATE the final hearing was listed before ORG in GPE for DATE and DATE .","On DATE and DATE ORG held the final hearings in the case and gave judgment on DATE . The court found in favour of the applicant , choosing to rely on the expert opinion and to disregard the decisions of the NORP courts . It found that the applicant had custody rights within the meaning of LAW and that therefore the child \u2019s removal from GPE had been wrongful under LAW . The court also rejected an objection based on LAW raised by the mother and issued an order for the return of the child to GPE .","DATE . On DATE the mother sought leave to appeal . This was granted on DATE and the case was fixed for hearing in ORG on DATE .","On DATE ORG heard and dismissed the mother \u2019s appeal while varying the order for the peremptory return of the child until the end of the school term .","The mother appealed to ORG . Her appeal was heard DATE and on DATE ORG gave judgment allowing the appeal . ORG reversed the judgment of ORG , finding that the applicant did not have custody rights within the meaning of LAW and that therefore the child \u2019s removal from GPE was not wrongful under LAW of the same LAW . ORG criticised the decision of ORG to seek a further expert opinion after having obtained a final decision on the matter from the NORP courts and expressed regret about the length of the proceedings .","Lord Hope of PERSON observed , inter alia , that :","\u201c LAW contemplates that the court may need to be provided with a determination from the authorities of the state of the child \u2019s habitual residence that the removal was wrongful . So a judge is not to be criticised if he decides to use this procedure because he can not responsibly resolve the issue on the information provided by the applicant . Nevertheless if he decides on this course delay will be inevitable . Great care must therefore be taken , in the child \u2019s best interests , to keep this to the absolute minimum . The misfortunes that have beset this case show that , once the court has received the response , it should strive to treat the information which it receives as determinative .","In this case the response that was received from GPE was sufficient to show that the child \u2019s removal was not wrongful within the meaning of article CARDINAL . On DATE the final ORG of GPE , upholding the court of first appeal , stated in the clearest terms that , under the law as it then stood in GPE , termination of marriage through divorce brings joint custody to an end , that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited , and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child \u2019s place of residence . It is wholly understandable that the father should feel aggrieved by what has happened in this case . The effect on his ability to exercise his rights of access is plain to see . But the phrase \u201c rights of custody \u201d has been given a particular definition by the Convention . It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes . The information provided by the NORP court shows that , as the law stood at the time of the child \u2019s removal , the father had no such rights . \u201d","Baroness PERSON of GPE commented , inter alia , that :","\u201c ... ORG concluded that the removal of the child in DATE had not been wrongful ... How then should the courts of the requested state respond to such a determination ? Most certainly not as they did in this case . Having received a determination , binding between the parties , in the final court of the requesting state , the ORG proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence . The fact that the expert was jointly instructed does not cure the vice . \u201d","Lord PERSON stated that :","\u201c It was quite wrong to permit the father to adduce further expert evidence from Dr PERSON which challenged not only the conclusion but the statement of the content of the father \u2019s rights set out in the judgment of the NORP court . The NORP court should have considered the terms of the judgment itself , without any subsequently obtained expert evidence . If it had done so it could only have come to the same conclusion as the NORP court , even without applying any presumption in its favour . \u201d","Lord PERSON commented as follows :","\u201c This is an extraordinary case . It is , we are told , unique in the length of time which elapsed before the judge \u2019s order for the child \u2019s summary return to GPE ( over DATE after the commencement of GPE Convention proceedings ) ; and unique too in being the only case in which a GPE court has rejected a foreign court \u2019s LAW determination that the child \u2019s removal was not in the event wrongful within the meaning of LAW ...","In circumstances like these it seems to me almost inconceivable that the court requesting the article CARDINAL determination would then not simply accept it . Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term \u201c rights of custody \u201d . There is nothing of that sort here . On the contrary , the judge - neither PERSON ( who had requested the determination ) nor PERSON ( who later ordered the child \u2019s return to GPE ) - on DATE , acting merely on the father \u2019s request , ordered that an expert in NORP law be jointly instructed by both parties to cover exactly the same ground as ORG had themselves just covered ... \u201d","NORP Throughout the entire proceedings in GPE the applicant was allowed to meet his child on a number of occasions in special contact centres for periods not exceeding TIME . According to him , however , over DATE he has only been able to spend TIME with his son .","It does not appear that the applicant ever applied to the GPE courts in order to obtain a judgment from them giving him access to the child . However , on an unspecified date in DATE he applied to ORG in GPE for the recognition of the NORP judgment of DATE ( see paragraph CARDINAL above ) . The ORG is not aware of the outcome of those proceedings .","The relevant provisions of LAW read as follows :","The divorced parent who was entrusted with the child shall exercise the parental rights ...","The divorced parent , who was not entrusted with the child , keeps the right to have personal ties with the child , as well as to observe his or her bringing up , education , studies and professional instruction .","The relevant provisions of LAW provide :","\u201c The removal or the retention of a child is to be considered wrongful where DATE","a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and","b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .","The rights of custody mentioned in sub - paragraph a above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . \u201d","\u201c For the purposes of this Convention \u2013","a ) \u2019rights of custody\u2019 shall include rights relating to the care of the person of the child and , in particular , the right to determine the child \u2019s place of residence ;","b ) \u2019rights of access\u2019 shall include the right to take a child for a limited period of time to a place other than the child \u2019s habitual residence . \u201d","\u201c ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .","In particular , either directly or through any intermediary , they shall take all appropriate measures -","a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;","b ) DATE to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;","c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;","d ) to exchange , where desirable , information relating to the social background of the child ;","e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;","f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;","g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;","h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;","i ) to keep other each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . \u201d","\u201c Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child \u2019s habitual residence or to ORG of any other ORG for assistance in securing the return of the child ... \u201d","\u201c ORG of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child . \u201d","\u201c The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .","If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . \u201d","LAW","\u201c Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that \u2013","a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal of retention ; or","b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .","The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .","In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child \u2019s habitual residence . \u201d","Article CARDINAL","\u201c The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ORG shall so far as practicable assist applicants to obtain such a decision or determination . \u201d","Article CARDINAL","\u201c An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to ORG in the same way as an application for the return of a child .","ORG are bound by the obligations of co - operation which are set forth in DATE to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject . The Central Authorities shall take steps to remove , as far as possible , all obstacles to the exercise of such rights .","ORG , either directly or through intermediaries , may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23757","languageisocode":"ENG","respondent":"HUN","branch":"ADMISSIBILITY","date":2004,"docname":"KAPITANY v. HUNGARY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . She is represented before the ORG by her father , PERSON . The respondent Government are represented by PERSON , Deputy ORG - Secretary , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","At the applicant \u2019s request , in DATE ORG ordered her neighbours to arrange for the drainage of rainwater on their land . On DATE ORG ) quashed this decision and remitted the case to the first administrative instance . The applicant \u2019s related court action was finally dismissed on DATE .","On DATE ORG discontinued the resumed administrative proceedings . On DATE ORG quashed this decision and again remitted the case to the first administrative instance .","On DATE ORG discontinued the resumed proceedings . On DATE ORG quashed this decision and again remitted the case to the first administrative instance .","Subsequently , the ORG was appointed to deal with the case as a first administrative instance in the resumed proceedings . On DATE it ordered the neighbours to carry out the necessary works by DATE . On DATE ORG essentially upheld this decision .","On DATE the neighbours brought an action seeking judicial review of the above administrative decisions . On CARDINAL DATE the applicant challenged the competent ORG for bias . On DATE she intervened in the proceedings on the side of the defendant ORG .","On DATE ORG appointed ORG to hear the case .","On DATE ORG dismissed the plaintiffs\u2019 action holding that the defendant ORG \u2019s procedure had been in compliance with the law .","On appeal , on DATE PERSON upheld this decision . The plaintiffs filed a petition for a review by ORG .","On DATE the applicant requested the enforcement of ORG decision . In reply to the applicant \u2019s enquiry , on DATE the President of ORG confirmed that the pending review proceedings were not an obstacle to the execution of the decision of DATE .","On DATE ORG dismissed the GPE petition for review .","On DATE the ORG ordered the execution of its decision of DATE . A time - limit was set for DATE .","On DATE the neighbours notified ORG that the works had been completed .","On DATE the applicant informed ORG that she was not satisfied with the technical solution adopted for the drainage works . On DATE the ORG appointed an expert . On DATE ORG , relying on the expert opinion , ordered the neighbours to alter the construction . After several postponements , ORG decided that they would have until DATE to complete the necessary works .","An inspection of the works was carried out on DATE . On DATE a fine was imposed on the neighbours for non - compliance with the administrative orders . On appeal , on CARDINAL DATE ORG increased the amount of the fine . A further fine was imposed on the neighbours on DATE .","On DATE another inspection took place . It was found that a major part of the works had been completed .","The applicant \u2019s criminal complaints against various officials involved in the case were to no avail ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69652","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"KAWALKO v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant filed an application for dissolution of joint property with ORG ( S\u0105d Rejonowy ) .","The proceedings were terminated by the decision of ORG of DATE , after the entry into force of LAW . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .","On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","Section CARDINAL of the CARDINAL Act reads , in so far as relevant :","\u201c CARDINAL . NORP Parties","Section CARDINAL reads , in so far as relevant :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","... \u201d","On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22151","languageisocode":"ENG","respondent":"ESP","branch":"ADMISSIBILITY","date":2000,"docname":"SANLES SANLES v. SPAIN","importance":1,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant is a NORP national . She was born in DATE and lives in GPE , PERSON ( GPE ) . She was represented before the ORG by PERSON PERSON and Mr PERSON , of the GPE and ORG respectively .","On DATE Mr PERSON ( \u201c Mr NORP \u201d ) , who had been tetraplegic since DATE following an accident on DATE , died a voluntary and painless death after having sought recognition from the NORP courts since DATE of his right not to have the ORG interfere with his decision to end his life in that way .","Those proceedings , which he had instituted in the GPE civil courts , ended with a decision of ORG of DATE dismissing his amparo appeal on the ground that the remedies in the ordinary courts had not been properly used because the applicant had failed to bring his case in the courts with territorial jurisdiction . That decision was examined by the ORG , which declared the application ( no . CARDINAL ) inadmissible on CARDINAL DATE for non - exhaustion of domestic remedies .","The applicant , PERSON sister - in - law , is the heir legally appointed by him to continue the proceedings which he had instituted while he was alive .","On DATE Mr PERSON brought an action ( jurisdicci\u00f3n voluntaria ) in ORG ) requesting :","\u201c ... that my general practitioner be authorised to prescribe me the medication necessary to relieve me of the pain , anxiety and distress caused by my condition without that act being considered under the criminal law to be assisting suicide or to be an offence of any kind ; I fully accept the risk that such medication might entail and hope thus to be able , at the appropriate time , to die in dignity . \u201d","In a judgment of CARDINAL DATE ORG Instance refused PERSON request , holding that LAW did not allow a court to authorise a third party to help a person to die or to bring about that person \u2019s death .","Mr PERSON appealed . In a decision ( auto ) of DATE , the Corunna Audiencia provincial upheld the judgment on the basis of LAW and ORG interpretation of that LAW ( see Relevant domestic law and practice , below ) , LAW and CARDINAL of LAW , LAW , and LAW .","Mr PERSON then lodged an amparo appeal with ORG on the basis of the rights to human dignity and the free development of the personality , to life and to physical and psychological integrity , and to a fair trial ( Articles CARDINAL , CARDINAL and DATE of the LAW ) . The appeal was registered on DATE . On DATE Mr Sampedro was given DATE in which to submit his final observations .","In TIME of CARDINAL DATE Mr GPE died , assisted by CARDINAL or more anonymous persons . Criminal proceedings were instituted against a person or persons unknown for aiding and abetting suicide .","After Mr Sampedro \u2019s death , the applicant informed ORG on DATE that she intended to continue the proceedings instituted by PERSON in her capacity as his heir .","On DATE the applicant reworded as follows the grounds of appeal submitted by PERSON in support of his amparo appeal in order to adapt them to the new situation arising as a result of his death : \u201c [ that ] the Audiencia [ provincial ] should have acknowledged [ Mr Sampedro \u2019s ] right for his general practitioner to be authorised to administer him the medication necessary ... \u201d .","In a decision of CARDINAL DATE ORG discontinued the proceedings and refused the applicant the right , in her capacity as Mr ORG heir , to continue the proceedings brought by him . It did not rule , however , on the applicant \u2019s allegation regarding the excessive length of the proceedings in ORG , which had still been pending at the time of Mr PERSON \u2019s death . The following is an extract from the court \u2019s judgment :","\u201c It must be acknowledged that our legal system allows continuity in the exercise of actions for the recognition and protection of certain personal rights by heirs and other persons after the death of the person bringing the action . Such is the case for actions concerning civil status , such as establishing descent ... and those concerning civil protection of the right to honour , personal and family privacy and personal image ( section CARDINAL(CARDINAL ) of Institutional Law CARDINAL\/CARDINAL of CARDINAL DATE ) . Those substantive legal conditions do not suffice , however , to justify PERSON request to continue the proceedings merely on the basis of the declaration contained in LAW of LAW ... .","There are CARDINAL aspects to the right granted under that provision to continue legal proceedings : ( a ) it concerns legal rights and relations that are not exhausted in themselves but are projected onto the family group , extending beyond the holder of the right to other persons affected by the court decision recognising or remedying the right infringed , and , essentially , ( b ) ... not successors to legal proceedings under succession law , but successors ope legis , in so far as expressly provided for by law .","That said , in the case of the right to die in dignity by euthanasia without the intervention by a third party constituting a criminal offence , which was the right in respect of which Mr ORG lodged his amparo appeal , the above conditions are not met . There is no explicit legal provision to that effect ( LAW being limited to indicating the time at which succession takes effect ) and the case does not concern rights such as a personal honour , reputation , image or privacy , the effects of which are not confined to the holder of the right but extend to his family circle or relatives . On the contrary , it is here a request of a \u201c strictly personal \u201d nature and inextricably linked to the person exercising it as \u201c an act of will concerning that person alone \u201d ( Constitutional Court Judgment ( \u201c CCJ \u201d ) DATE seventh ground , and CCJ CARDINAL\/CARDINAL , fifth ground ) .","...","In the light of the foregoing , the request to continue the proceedings must be rejected . The applicant \u2019s claim lapsed from the moment at which Mr PERSON , the appellant , died and his heir , PERSON , can not continue to rely on it in the constitutional proceedings . Our conclusion is further supported by the nature of an amparo appeal in constitutional proceedings , which has been established for the purpose of challenging actual and effective breaches of fundamental rights . As stated in the ORG CARDINAL\/CARDINAL , an amparo appeal \u201c is not a proper remedy for requesting and obtaining an abstract and generic decision determining declarative claims which concern allegedly erroneous interpretations or incorrect applications of constitutional provisions , but only and exclusively those claims which are intended to re - establish or protect fundamental rights in the event of an actual and effective breach \u201d ( second ground ) . \u201d","\u201c Heirs shall inherit all the rights and obligations of the deceased by the fact of his death alone . \u201d","\u201c Anyone who helps or encourages another to commit suicide shall be liable to a prison sentence [ of DATE ] ; if he assists to such an extent that he causes the death , he shall be liable to a prison sentence of DATE . \u201d","\u201c ...","Anyone who performs an act necessary to assist another to commit suicide shall be liable to a prison sentence of DATE .","If that assistance causes the death , the person providing it shall be liable to a prison sentence of DATE .","Anyone who , at the express , genuine and unequivocal request of a person suffering from a serious terminal illness or CARDINAL causing him serious permanent and intolerable suffering , causes that person \u2019s death or actively performs an act necessary to assist him to die shall be liable to a sentence in the first or second category below the one provided for in DATE and QUANTITY of this Article \u201d .","\u201c CARDINAL . Where the holder of the infringed right dies without having been able to bring , either himself or through his legal representative , an action under this LAW , on account of the circumstances in which the infringement occurred , the action may be brought by the persons referred to in section CARDINAL [ the person designated in the will or , failing that , the spouse , descendants , ascendants and brothers ... ]","Those persons may continue an action previously instituted by the holder of the infringed right when he dies . \u201d","\u201c ... The right to life is , accordingly , an inherently positive and protective one which can not therefore be considered as a right of freedom encompassing the right to die . It is not , however , inconsistent with that principle to acknowledge that , in so far as life is a personal asset forming an integral part of a person \u2019s freedom , an individual can dispose of his own life . However , such an example of \u201c licence to act \u201d ( agere licere ) , in the sense of taking one \u2019s own life or accepting one \u2019s own death , is an act permissible by law but not in any way a subjective right allowing an individual to solicit support from the public authorities to overcome resistance to his desire to die ; still less is it a fundamental subjective right in respect of which that possibility would extend over and above even legislative resistance , which can not reduce the essential content of a fundamental subjective right .","Accordingly , LAW , as in force , can not be construed to guarantee the individual a right to his own death ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105768","languageisocode":"ENG","respondent":"SVN","branch":"COMMITTEE","date":2011,"docname":"CASE OF STREHAR v. SLOVENIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13","judges":"Angelika Nu\u00dfberger;Ganna Yudkivska","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant instituted civil proceedings before the ORG seeking annulment of a purchase contract .","On DATE the first - instance court annulled the contract . An appeal was lodged .","On DATE ORG upheld the appeal and remitted the case for re - examination .","DATE and DATE CARDINAL hearings were held .","On DATE the applicant withdrew the claim and a decision on termination of proceedings was issued on DATE .","A description of relevant domestic law can be found in the PERSON v. GPE decision ( no . CARDINAL\/CARDINAL , DATE , \u00a7 \u00a7 CARDINAL ) ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57566","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":1972,"docname":"CASE OF RINGEISEN v. AUSTRIA (ARTICLE 50)","importance":2,"conclusion":"Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"","text":["The ORG is called upon to rule only on the question of the application of LAW ) in the present case . Thus , as regards the facts the ORG will confine itself here to giving a brief outline and for the rest it refers to paragraphs CARDINAL of its judgment of DATE .","That judgment concerned , inter alia , the detention of PERSON while on remand from DATE to DATE , that is DATE and DATE , and from DATE , that is DATE and DATE .","PERSON \u2019s lawyer wrote , on DATE , to the NORP Federal Minister of ORG requesting him , with reference to the judgment of DATE and to Articles CARDINAL \u00a7 CARDINAL and CARDINAL ( article DATE , article CARDINAL ) of the LAW , to make proposals for the reparation of the damage allegedly sustained by the applicant . It was claimed that the applicant had , \" as a result of his unjustified detention \" , suffered over and above the loss of his fortune irremediable damage to his health which reduced his life expectancy and made constant medical care necessary . The applicant \u2019s lawyer therefore requested the Minister to advance on account the sum of MONEY ( DM ) . In a reminder dated DATE , he insisted that the matter should be dealt with promptly , having regard , in particular , to ORG state of health .","On DATE , the Minister replied that in view of his ORG \u2019s competence under LAW it was not in a position to deal with the matter .","Meanwhile , PERSON had addressed his request to the ORG on DATE . He laid emphasis on the fact that he was still in very difficult circumstances due to his poor state of health and he asked the Commission \" to apply to ORG ... on ( his ) behalf and to have a decision taken in accordance with LAW .","The applicant has set out more particulars of his claims in letters which he and his wife sent to the ORG on DATE , DATE , QUANTITY DATE and CARDINAL DATE . He alleges that he has sustained considerable material damage resulting , inter alia , from interference with the conduct of his business and from loss of property and rents in GPE and for this he claims MONEY . Furthermore , he states that he is entitled to compensation , in an amount which he leaves the ORG to assess : for personal injury , for damage to his reputation and \" for detention \" ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94162","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":2009,"docname":"CASE OF VARNAVA AND OTHERS v. TURKEY","importance":1,"conclusion":"Preliminary objections dismissed (substantially the same, disappearance of object of proceedings, ratione temporis, six month period);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;No violation of Art. 5;Non-pecuniary damage - award","judges":"Anatoly Kovler;Dean Spielmann;Fran\u00e7oise Tulkens;G\u00f6n\u00fcl Er\u00f6nen;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis L\u00f3pez Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;P\u00e4ivi Hirvel\u00e4;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva","text":["The complaints raised in this application arise out of the NORP military operations in northern GPE in DATE and DATE and the continuing division of the territory of GPE . These events gave rise to CARDINAL applications by ORG against the respondent ORG , which have led to various findings of violations of the LAW . The history is set out in the ORG \u2019s judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINALIV ; hereinafter \u201c the fourth inter - State case \u201d ) and the ORG sees no reason for repetition .","The facts are disputed by the parties . The ORG notes that the summary of their versions of events given in the ORG judgment have not been ; these are in large part reproduced below , with the addition of some new information submitted by the parties and identified as such in the text .","The first applicant , an ironmonger , was born in DATE ; he has been considered missing since DATE . His wife , the second applicant , was born in DATE and resided in GPE .","In DATE the first applicant , responding to the declared general mobilisation , enlisted as a reservist in the CARDINAL ORG which had its headquarters in GPE . On DATE the reserve soldiers of the CARDINAL ORG , among them the applicant , took up the manning of NORP outposts along the front line opposite the NORP military forces which extended between PERSON and GPE .","On TIME CARDINAL DATE , NORP military forces , supported by tanks and air cover , launched an attack against the NORP area where the applicant and his battalion were serving . The NORP line of defence was broken and the NORP military forces began advancing towards the area of PERSON ; the NORP forces began retreating and dispersed in all directions . After a while the area was captured by the NORP military forces and the applicant was trapped within . There has been no trace of the applicant since .","Mr Christakis Ioannou of GPE and now of ORG , who had been a prisoner of the NORP military forces and\/or the NORP authorities , stated that at FAC in GPE , where he had been taken on DATE , there were another DATE persons in the same room for DATE . Among them was the applicant . After the said period they were split up and he had not seen the applicant since .","The first applicant , a student , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .","In DATE the first applicant was serving as a second lieutenant in DATE stationed at FAC . On DATE the battalion moved to the ORG area . The soldiers were split up into various groups ; the applicant \u2019s group , consisting of CARDINAL men , was ordered to take up positions on the LOC heights .","On DATE NORP forces launched a strong attack from all sides against the NORP forces\u2019 positions while other NORP troops managed to encircle PERSON . Owing to the NORP superiority in men and weapons the NORP forces were ordered to retreat towards the centre of the village to the company base . The applicant arrived there with his men and was informed by the inhabitants that PERSON was surrounded by NORP troops . They hid their weapons in an orchard and put on civilian clothing . The same afternoon the applicant and others attempted unsuccessfully to break through the NORP lines . They then returned to PERSON where they spent TIME . At TIME on DATE NORP troops entered PERSON and started extensive house - to - house searches . The applicant and his comrades were warned by the villagers and they dispersed in order to avoid capture . Since then , none of the members of the group has seen the applicant .","Nicos Th . Tampas of ORG , also on the ORG heights on CARDINAL DATE , mentioned in a statement that at DATE on DATE he entered a warehouse in the village where he found the applicant looking after a wounded man . After talking with the applicant , he left . That was the last time that he saw the applicant . He was himself arrested by the NORP on CARDINAL DATE in ORG , detained in various prisons in GPE and GPE and released on DATE .","PERSON of GPE , now of GPE , in his statement declared that while he was a prisoner in ORG he saw and recognised the applicant , whom he had previously met .","The first applicant , a student , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .","In DATE the first applicant enlisted to do his national service . He was posted to ORG . On DATE , a section of the battalion , including the applicant , was sent on a mission in the ORG and ORG area ( GPE district ) . The men spent TIME at ORG and intended to complete the mission TIME .","At TIME on DATE ORG launched a fullscale attack from all sides in the ORG and ORG area . The applicant \u2019s group leader ordered his men to split up into CARDINAL groups and to withdraw towards PERSON ( also in the GPE district ) . The applicant was in CARDINAL of the groups which intended to withdraw by following a route along the coast .","The men first reached the main NicosiaKyrenia road near the \u201c Airkotissa \u201d restaurant . While resting , they heard shouting and the group leader sent the applicant and another soldier to investigate . As they had not returned after TIME the remainder of the group left for Panagra ( also in the GPE district ) . On their way , they were ambushed by NORP soldiers and the remaining group dispersed .","PERSON , of GPE , stated that , when he was a prisoner in GPE from DATE until DATE , he had met the applicant . They were in the same prison in GPE and were subsequently transferred to GPE , at which point he had been released but not the applicant .","PERSON , of GPE , stated that he recognised the first applicant from a photograph that was shown to him by the second applicant and he had been with him in FAC .","Finally , the second applicant mentioned in a signed statement that he identified his missing son in a photograph published in Athinaiki , a NORP newspaper , on DATE . In this photograph NORP prisoners were shown on a boat en route to GPE .","The first applicant , a photographer , was born in DATE ; he has been considered missing since DATE . His mother , the second applicant , was born in DATE and resided in GPE .","On DATE the first applicant enlisted as a reservist . He was posted to DATE . On DATE the whole battalion was ordered to move on DATE to the area of PERSON . ORG took up defensive positions at a height called \u201c LOC , near the NORP village of GPE .","At TIME on DATE the CARDINALst Company came under attack from the NORP villages of PERSON . The NORP military forces consisted of a paratroop battalion , QUANTITY tanks and high - angle guns . They succeeded in breaking through the NORP lines and infiltrated the right flank of ORG in order to encircle it . The commander ordered the company to regroup at the village of LOC ; from there they were ordered to regroup at ORG , where they arrived at TIME After a roll call they found out that CARDINAL soldiers of ORG were absent , including the applicant . The area in which ORG had been initially stationed was captured by the NORP military forces .","Mr PERSON of GPE , who was a prisoner at ORG in DATE , stated that DATE he heard a NORP calling the applicant \u2019s name . He also saw the applicant whom he happened to know previously and noticed that he was lame in one leg . On DATE Mr PERSON was taken to ORG in GPE and he had not seen the applicant since .","The first applicant , a student , was born in DATE ; he has been considered missing since DATE . His mother , the second applicant , was born in DATE and resided in GPE .","In DATE the first applicant enlisted in ORG to do his military service .","On DATE the applicant \u2019s father was informed by PERSON that the applicant had left PERSON with the men of ORG and had gone to PERSON .","On DATE PERSON with CARDINAL soldiers , including the applicant , set out from PERSON in CARDINAL vehicles to reconnoitre the ground of the ORG area . CARDINAL buses were seen driving along a street from the direction of ORG village . An officer by the name of ORG ordered CARDINAL soldiers to search the buses . The buses were full of NORP soldiers who started firing at the NORP men . The applicant was wounded in the right hand and on the left side of his ribs . Mr PERSON cleaned his wounds with water , loaded his gun and told him to go back . After that the applicant was not seen again by his unit .","According to the statement of PERSON , who had been a prisoner of the NORP at ORG and ORG in DATE , he happened to meet the applicant during his captivity . They both stayed with others in cell no . CARDINAL until DATE . They had chatted together DATE and became friends . On DATE PERSON was brought back to GPE and was released on DATE . The applicant had given him a letter to pass on to his father but he left it in his pocket when he changed his clothes . All the clothes belonging to the prisoners were burned .","The second applicant in her statement mentioned that she had recognised her son in a photograph that was published in the NORP newspaper ORG on DATE and showed NORP prisoners being transported to GPE on a NORP destroyer in DATE .","The first applicant , a car mechanic , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .","In DATE , in response to the general mobilisation , the first applicant enlisted as a reserve sergeant in ORG of ORG .","On DATE , all the men of ORG , including the applicant , were trying to prevent the NORP landing which was taking place in the area of \u201c Pikro Nero \u201d , GPE . At TIME on DATE the NORP military forces which had landed , supported by tanks and air cover , attacked the NORP forces that were defending the area . Owing to the superiority of the NORP military forces in men and weapons ORG was ordered to retreat towards GPE . The applicant was present during the regrouping of the battalion . TIME after the regrouping the commander of the battalion led his men out of GPE , reaching a ravine between the villages of ORG Georghios and PERSON where they took up battle positions . A number of commandos of ORG arrived in the same ravine . At TIME on DATE , NORP military forces surrounded the NORP forces in the ravine and opened fire . The commander ordered a counterattack intending to break the NORP military GPE lines and retreat towards PERSON . No trace of the applicant was found during the counter - attack and retreat .","On DATE the Special News Bulletin \u2013 a DATE communication by the NORP administration \u2013 published a photograph of NORP prisoners of war under the caption \u201c NORP prisoners of war having their lunch . DATE they were visited by a representative of ORG \u201d . In that photograph the first applicant was identified by the second applicant .","A former prisoner , Mr PERSON , of PERSON , now at ORG , in a signed statement to the NORP police said that during his transportation from GPE to GPE he saw and talked to the first applicant , whom he knew very well since they had attended the same secondary school .","The first applicant , a bank employee , was born in DATE and lived at Yialousa ; he has been considered missing since DATE . His wife , the second applicant , was born in DATE and resided in GPE .","On DATE CARDINAL saloon cars , a bus and CARDINAL tanks , all full of NORP and NORP soldiers , turned up at Yialousa and stopped near the police station . The soldiers got out and ordered everyone to assemble at the nearby coffee house . CARDINAL persons gathered there . A NORP officer told them that from that time they would be under NORP administration and ordered them to make a census of the NORP inhabitants of the village from DATE and that he would be back on DATE to collect the lists . On DATE , the same civilian and military vehicles ( tanks ) returned . A number of NORP got out , marched to the coffee house and asked for the lists . Another group of NORP soldiers was carrying out a house - to - house search . They imposed a curfew and , having taken the lists , they took with them for questioning QUANTITY persons , including the first applicant . They put them on a bus and drove them outside the village in the direction of GPE .","On DATE , PERSON was visited by ORG men to whom the arrest of the CARDINAL NORP Cypriots was reported by their co - villagers .","According to the applicants , representatives of ORG ( \u201c the ICRC \u201d ) in GPE visited ORG in the NORP - occupied sector of GPE and on CARDINAL DATE recorded the names of CARDINAL NORP Cypriots held there , including the QUANTITY persons from GPE ( they cited document EZYCARDINALD ) . PERSON , PERSON and PERSON also saw the said detainees at FAC , during the same period that they were detained there ; they were released later .","On DATE a group of NORP civilians came to GPE looking for PERSON , PERSON , PERSON . Having found them , they led them to ORG . After having emptied CARDINAL safes they ordered that the third one should be opened , but they were told that the keys were with the applicant . Subsequently they left , having shut and sealed the outside door . After DATE the same group looked for the same persons and went again to the bank building . They had the CARDINAL keys for the safe , which the applicant always carried with him . Loizos Pallaris opened the safe . The keys were in a leather case which the applicant used to carry , but his personal keys had been removed . ORG took the contents of the safe , sealed the gate and left .","The first applicant , a moulder , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .","In DATE the first applicant was doing his national service in the CARDINAL ORG stationed in GPE . On DATE a section of the battalion , including the applicant , was sent on a mission in the ORG and ORG area . The men spent TIME at ORG and intended to complete their mission TIME . At TIME on DATE the NORP military forces launched a fullscale attack from all sides in the area of PERSON and ORG . The commander ordered his men to split up into CARDINAL groups , withdraw towards GPE and meet there . On their way they were ambushed by the NORP military forces and in the confusion dispersed .","Later Mr Costas Themistocleous of Omorphita , now of GPE , who was a prisoner at FAC , saw there the applicant , whom he had known from his childhood ; this was on or DATE , while he was about to return to GPE . They did not speak to each other but waved .","The first applicant was born in DATE ; he has been considered missing since DATE . His wife , the second applicant , was born in DATE and resided in GPE .","On DATE , following the general mobilisation , the first applicant enlisted as a reservist in FAC . He was put in ORG . On DATE the battalion moved to the PERSON area to reinforce the NORP forces and to man outposts on the front line .","On TIME CARDINAL DATE NORP military forces , supported by tanks and air cover , launched a heavy attack against the NORP forces in the area , where the applicant was with his battalion . Owing to the superiority of the NORP military forces the NORP Cypriot defence line was broken , the NORP military forces advanced towards the PERSON Milia area , and the NORP forces began to retreat . The area was , in a short period of time , occupied by the NORP military forces and the applicant was trapped within . No trace of the applicant has been found since .","An ex - prisoner of war , Mr PERSON of ORG , now at GPE , stated that during his detention at FAC in GPE he had seen the applicant , who was detained in cell no . CARDINAL . On DATE all the prisoners at FAC were taken to FAC . There they were all lined up in CARDINAL rows . A NORP military officer picked out some of the prisoners , including the applicant , who were taken away . PERSON had not seen the applicant since .","The respondent Government disputed that the applicants had been taken into captivity by the NORP army during the military action in GPE in DATE . They considered that the inevitable conclusion from the information provided in the application forms was that all the alleged \u201c missing persons \u201d , except PERSON , were military personnel who died in action during DATE to DATE .","The respondent Government noted that , since the introduction of these applications , files relating to the same \u201c missing persons \u201d had been submitted by ORG to ORG on ORG ( \u201c the ORG \u201d ) in GPE during DATE . In these files there were no assertions that these people had been seen in any of the prisons in GPE . The names of the alleged witnesses listed in applications nos . CARDINAL ( Christakis Ioannou ) , CARDINAL ( PERSON ) , PERSON ( PERSON ) , CARDINAL\/CARDINAL ( PERSON ) , CARDINAL ( PERSON ) , CARDINAL ( Efstathios Selefcou ) , MONEY ( Costas Themistocleous ) and CARDINAL\/CARDINAL ( PERSON ) were not cited in support . The alleged sightings were therefore without foundation .","As regards PERSON ( no . CARDINAL\/CARDINAL ) , who was a civilian , the respondent Government noted that the ICRC had visited ORG where he had allegedly been held but his name , contrary to the ORG assertion , did not appear in the list of NORP Cypriots held . In any event , it was a transit centre where people were not held for DATE before being released or moved elsewhere . In the file submitted to the ORG , there was only a reference to witnesses seeing the key case which he was alleged to always carry on his person . The materials of the ICRC , who paid regular visits to prisoners and internees in GPE , also showed that none of the alleged missing persons had been brought to GPE or detained . All prisoners that had been taken to GPE were repatriated DATE and DATE and lists of those concerned had been handed over to the NORP Cypriot authorities .","DATE . As concerned the alleged identification of the missing persons in photographs , the Government pointed out that a scientific investigation of certain published photographs and documentary film had been carried out by Professor PERSON of ORG at the request of the third member of the ORG . This had shown that it was extremely dubious that anyone could be identified from these documents and that any alleged identification by relatives was unreliable given the quality of the material and their emotional feelings .","The Government of GPE submitted that the first applicants went missing in areas under the control of the NORP forces .","These CARDINAL applicants had been brought with their units to the area of PERSON to man NORP outposts along the front line . On DATE NORP armed forces launched the attack which gained them control over the whole of northern and eastern GPE by DATE . When the NORP forces broke through the NORP line of defence and advanced on PERSON , the NORP forces retreated and dispersed in all directions . The NORP forces rapidly gained control of the entire surrounding area . Many NORP soldiers , including the CARDINAL applicants , were hemmed in and completely surrounded . They could not have escaped as the intervening Government would have known of their fate .","This applicant was in charge of the soldiers who were defending ORG . After the NORP forces encircled ORG , the NORP forces were ordered to retreat . The applicant \u2019s group put on civilian clothing and unsuccessfully tried to break out of the village . When the NORP forces entered the village TIME , the applicant \u2019s group dispersed to avoid capture . At TIME on DATE , the applicant was seen by PERSON . Tampas in a warehouse tending a soldier with a head injury . Mr ORG was later captured and detained . His was the last reported sighting of the first applicant . It was most likely that the first applicant had remained with the injured man and was taken into detention by the NORP forces who were in control of the entire area . Only one man was known to have escaped from the village and he , unlike the first applicant , had local knowledge of the terrain .","NORP Under attack from the NORP army , the first applicant \u2019s unit was ordered to split into CARDINAL groups and withdraw westwards . The applicant \u2019s group reached the GPE - GPE road , QUANTITY metres from the \u201c Airkotissa \u201d restaurant . The applicant and another man were sent to investigate shouting coming from the restaurant . After TIME when they did not return , the group left for Panagra . At the time that the applicant and the other soldier were sent to the restaurant , there were NORP forces in the area . The most plausible explanation for the QUANTITY men not returning , in the absence of any sound of fighting or shooting , was that they had been detained , either to prevent them giving away the NORP positions , for information or as prisoners of war .","On DATE the first applicant was discovered to be missing from his unit at roll call after they had broken through encircling NORP forces . The area in which his unit had been stationed was captured by NORP forces . Whatever happened to the applicant afterwards occurred in an area controlled by the NORP forces .","This applicant was seen wounded in his right hand and on the left side of his ribcage after a clash between NORP forces and QUANTITY buses full of NORP soldiers coming from ORG village . His wounds were cleaned by a witness named PERSON and he was told to make his way uphill with CARDINAL other men , CARDINAL of whom was also injured , to the monastery where the NORP forces were . The other CARDINAL men were discovered dead DATE when the NORP forces withdrew . It was clear that the applicant had either been found dead by the NORP forces or , as was more likely , found and detained in an injured condition .","This applicant was among those attempting to prevent the invasion of GPE . Some individuals were identified as killed in the operation ; the applicant was not among them . The intervening Government had no evidence that this applicant was dead . It had to be assumed that the applicant had been detained alive .","DATE . This was further corroborated by the photograph published in the Special News Bulletin , issued DATE by the NORP administration , on DATE , of NORP prisoners of war having their lunch . The first applicant was identified at the time by his father , the second applicant .","In their observations before ORG , the intervening Government provided a copy of a statement dated DATE by ORG taken by a police officer which stated that while being carried as a prisoner on a ship from GPE to GPE he had seen and spoken briefly to PERSON , whom he knew from school . They also provided a copy of the ICRC Central Tracing Agency sheet ( ref . no . EZG CARDINAL\/CARDINAL ) according to which PERSON had been sighted in a NORP army hospital in GPE in LOC . The intervening Government explained that they had not provided this information to the ORG as it had no mandate to investigate outside the territory of GPE and a policy decision had been taken when submitting documents to the ORG on DATE not to antagonise GPE whose cooperation was necessary if the ORG was to begin effective operation .","By DATE NORP forces were in control of northern and eastern GPE , including the NORP peninsula where the first applicant worked as general cashier in ORG in GPE . On DATE NORP and NORP soldiers arrived in the village and a NORP officer ordered a census of ORG DATE . DATE , the lists were handed over and NORP soldiers carried out searches . They left , taking with them on a bus , QUANTITY individuals , including the first applicant . This was reported by fellow villagers .","Turkish NORP came to the village in the circumstances reported by the applicants ( see paragraphs CARDINAL above ) . They had the CARDINAL keys for a safe , which the first applicant always carried with him . It was highly probable that ORG had obtained the keys by informing those holding the first applicant , showing that he was alive and in detention for DATE . There was some evidence that he was detained after DATE , at least until DATE , at ORG .","NORP The list of persons seen by the PERSON detained at FAC on CARDINAL DATE included ORG , which was the name under which this first applicant had been recorded ( the first name being misspelled and the surname of his father ( PERSON ) , as appearing on the first applicant \u2019s identity card , also being misspelled ) .","An affidavit dated DATE by ORG , a lawyer of the firm representing the applicants in this application , was submitted to ORG . It stated that the son of the missing man , Mr PERSON , recounted that at DATE he had met a NORP writer who had informed him that , while investigating disappearances , she had discovered evidence indicating that the QUANTITY missing persons from PERSON had been buried near the NORP village of GPE . When the son conveyed this information to the ORG he was informed that the inhabitants of GPE had already given information to the ORG about the execution and burial of NORP prisoners near their village .","This first applicant withdrew with his section from ORG towards GPE . They were ambushed by NORP military forces and dispersed . There has been no news of the applicant since . The intervening Government had no knowledge of the first applicant , which meant that he had not escaped . Nor was there any evidence that he was killed in the ambush . It was more than likely that he had been detained by the NORP armed forces .","In DATE , in the context of the activity of the ORG ( see paragraphs CARDINAL below ) , human remains were exhumed from a mass grave near the NORP village of GPE in the NORP area . After anthropological and genetic analyses , the remains of PERSON ( named as the first applicant in application no . CARDINAL ) were identified , along with the remains of the other CARDINAL missing persons from GPE and CARDINAL other missing NORP Cypriots . The bodies of the CARDINAL missing persons from Yialousa were lined up next to each other in the grave , with CARDINAL other bodies on top close to the ground surface . The forensic report dated CARDINAL DATE detailed the process of exhumation and noted that it appeared to be a primary and synchronous burial site as the condition of the bodies indicated that they were buried while soft tissue was still present and placed in direct contact with each other . According to the report , the main object of the analysis of the human remains was their identification .","Several bullets from firearms were found in the grave . In regard to PERSON , the medical certificate for the cause of death , signed by a doctor on DATE , indicated bullet wounds to the skull and right arm and a wound to the right thigh . His family was notified and a religious funeral took place on DATE .","The ORG was officially set up in DATE . The following paragraphs are taken from ORG in the fourth inter - State case ( paragraphs CARDINAL - CARDINAL ) :","\u201c CARDINAL . ... According to its terms of reference , it \u2018 shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of DATE and ORG . Its tasks have been circumscribed as follows : \u2018 to draw up comprehensive lists of missing persons of both communities , specifying as appropriate whether they are alive or dead , and in the latter case approximate time of the deaths\u2019 . It was further specified that \u2018 the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths\u2019 and that \u2018 no disinterment will take place under the aegis of this committee . The committee may refer requests for disinterment to the LAW for processing under its customary GPE . \u2018 All parties concerned\u2019 are required to cooperate with the committee to ensure access throughout the island for its investigative work . Nothing is provided as regards investigations in mainland GPE or concerning the NORP armed forces in GPE .","The ORG consists of CARDINAL members , CARDINAL \u2018 humanitarian person\u2019 being appointed by the NORP side and one by the NORP side and the third member being an \u2018 official selected by the ICRC ... with the agreement of both sides and appointed by the Secretary - General of the LOC Nations\u2019 .","The ORG has no permanent chairman , the presidency rotating on a DATE basis between all CARDINAL members . Decisions are to be taken by consensus to the extent possible . According to the procedural rules agreed upon in DATE , the procedure is to be conducted as follows :","\u2018 CARDINAL . Individual or collective cases will be presented to the ORG with all possible information . The ORG will refer each case to the side on whose territory the missing person disappeared ; this side will undertake a complete research and present to the ORG a written report . It is the duty of the ORG members appointed by each side , or their assistants , to follow the enquiries undertaken on the territory of their side ; the third member and\/or his assistants will be fully admitted to participate in the enquiries .","The ORG will make case decisions on the basis of the elements furnished by both sides and by ORG of the ICRC : presumed alive , dead , disappeared without visible or other traceable signs .","NORP If the ORG is unable to reach a conclusion on the basis of the information presented , a supplementary investigation will be undertaken at the request of a ORG member . The third ORG member and\/or his assistants will participate in each supplementary investigation , or , as the case may be , investigators recruited by the ORG with the agreement of both sides.\u2019","The DATE rules state as \u2018 guiding principles\u2019 that \u2018 investigations will be conducted in the sole interest of the families concerned and must therefore convince them . Every possible means will be used to trace the fate of the missing ORG . The families of missing persons may address communications to the committee which will be passed on to its appropriate member . That member will eventually provide the family with \u2018 final information as to the fate of a particular missing person\u2019 , but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case .","The committee \u2019s entire proceedings and findings are strictly confidential , but it can issue public statements or reports without prejudice to this rule . According to the DATE procedural rules , a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published . Individual members may make additional statements to the press or the media , provided they comply with the rule of confidentiality , avoid criticism or contradiction to the joint statement and any kind of propaganda .","Due to the strict confidentiality of the ORG \u2019s procedure , no detailed information about the progress and results of its work is available . However , from the relevant sections of the regular progress reports on ORG in GPE submitted by the ORG Secretary - General to ORG it appears that the committee \u2019s work started in DATE with a limited , equal number of cases on both sides ( Doc . S\/CARDINAL , of CARDINAL , para . CARDINAL ) ; that by DATE an advanced stage had been reached in the investigation of the initial CARDINAL individual cases , supplementary investigations being started in CARDINAL cases in which reports had been submitted ( Doc . S\/CARDINAL\/Add . CARDINAL , of DATE , para . CARDINAL ) ; and that , while no difficulties were encountered as regards the organisation of interviews or visits in the field , real difficulties then arose by the lapse of time and , even more importantly , lack of cooperation by the witnesses .","This prompted the committee to issue a lengthy press release on DATE ( Doc . S\/CARDINAL\/Annex ) . There the committee stated that it considered the cooperation of the witnesses as absolutely fundamental , but that the witnesses were often reluctant , unwilling or unable to give full information as to their knowledge about the disappearance of a missing person . However , the committee could not compel a witness to talk . The explanation of the witnesses\u2019 reluctance to testify was that they were afraid of incriminating themselves or others in disappearances , and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would \u2018 not be subject to any form of police or judicial prosecution\u2019 . The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge . It further stated :","\u2018 In order to further allay the fears of the witnesses , the committee , so as to give the strongest guarantees to the witnesses , is examining measures that could be taken to ensure that they would be immune from possible judicial and\/or police proceedings solely in connection with the issue of missing persons and for any statement , written or oral , made for the committee in the pursuit of activities within its mandate.\u2019","In the same press release , the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons . However , despite systematic enquiries on burial places of missing persons , on both sides , it had not been successful in this respect . It recalled that according to its terms of reference it could not itself order disinterments . Moreover , while there was access to all evidence available , the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence . Finally , the committee stated that it was considering the possibility of requesting that the CARDINAL sides furnish it with basic information concerning the files of all missing persons , so as to allow it to have a global view of the whole problem .","NORP In DATE , the ORG Secretary - General wrote a letter to the leaders of both sides observing that so far the committee had been given details on PERCENT of the cases and urging them to submit all cases . He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations . Moreover , the committee should consider modalities for sharing with affected families any meaningful information available ( ORG . S\/CARDINAL , of CARDINAL DATE , para . CARDINAL ) . On DATE , in a further letter to the leaders of both communities the ORG Secretary - General noted that no improvement had been made and that the international community would not understand that the committee , DATE after it had become operational , remained unable to function effectively . Only CARDINAL cases had been submitted by the NORP side and CARDINAL by the NORP side . He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations ( Doc . S\/CARDINAL , of DATE , paras . PERCENT CARDINAL ) .","On CARDINAL DATE the ORG Secretary - General , on the basis of a report of the ORG \u2019s third member and proposals by both sides , put forward compromise proposals on criteria for concluding the investigations ( Doc . PERSON , of DATE , para . CARDINAL ) , which were subsequently accepted by both sides ( Doc . ORG , of DATE , para . CARDINAL ) . By DATE , the NORP side submitted all their case files ( CARDINAL ) . However , the committee \u2019s third member withdrew in DATE and the ORG Secretary - General made it a condition for appointing a new one that certain outstanding questions , including classification of cases , sequence of investigations , priorities and expeditious collection of information on cases without known witnesses , be settled beforehand ( Doc . S\/CARDINAL\/CARDINAL , of DATE , para . CARDINAL ) . After being repeatedly urged to resolve these issues ( Doc . S\/CARDINAL\/CARDINAL , of DATE , paras . CARDINAL - CARDINAL ) , both parties eventually came to an agreement on DATE on the exchange of information on the location of graves of missing persons and return of their remains . They also requested the appointment of a new third member of the CMP ( ORG . ORG , of DATE , paras . CARDINAL and DATE ) . However , by DATE , no progress had been made towards the implementation of this agreement . The ORG Secretary - General noted in this context that the NORP side had claimed that victims of the coup d\u2019\u00e9tat against Archbishop PERSON in DATE were among the persons listed as missing and that this position deviated from the agreement ( ORG . GPE , of DATE , para . CARDINAL ) .","A new third member of the ORG had , by the time of the ORG \u2019s report , been appointed ( ibid . para . CARDINAL ) . The committee has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter \u2019s fate . \u201d","From DATE the ORG began a substantial exhumation project on identified burial sites with a view to identifying the remains of bodies and ensuring their return to their families . A special unit to provide information to families was also set up .","According to the information provided by the respondent Government , CARDINAL sets of remains had been located ; CARDINAL remains had been submitted for analysis and identification by the anthropological laboratory ; since DATE , CARDINAL bodies had been identified ( CARDINAL NORP Cypriots , CARDINAL NORP ) ; by DATE , CARDINAL files of missing persons had been closed ; by the date of the hearing , PERCENT of missing persons had been identified and their remains returned to their relatives for burial ; by DATE , CARDINAL sites had been visited by bi - communal teams ( CARDINAL in the north , CARDINAL in the south ) .","In the ongoing monitoring process concerning GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALIV ) , ORG looked at the question of missing persons and , inter alia :","\u201c CARDINAL . considered that it was crucial that the current work of the ORG be carried out under the best possible conditions and without delay ;","in consequence , while reaffirming that the execution of the judgment requires effective investigations , notes that these should not jeopardise the ORG \u2019s mission ;","NORP considered that the sequence of measures to be taken within the framework of the effective investigations , and carrying out of the work of the ORG should take into consideration these CARDINAL essential aims ;","underlined in any event the urgent need for NORP authorities to take concrete measures having in mind the effective investigations required by the judgment , in particular relating to the ORG \u2019s access to all relevant information and places ;","in that context , underlined , moreover the importance of preserving all the information obtained during ORG carried out by the ORG ; ... \u201d","The PERSON provides , inter alia :","\u201c CARDINAL . An act of enforced disappearance is an offence to human dignity . It is condemned as a denial of the purposes of the Charter of ORG and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in LAW and reaffirmed and developed in international instruments in this field .","Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families . It constitutes a violation of the rules of international law guaranteeing , inter alia , the right to recognition as a person before the law , the right to liberty and security of the person and the right not to be subjected to torture and other cruel , inhuman or degrading treatment or punishment . It also violates or constitutes a grave threat to the right to life . \u201d","\u201c CARDINAL . No State shall practise , permit or tolerate enforced disappearances .","States shall act at the national and regional levels and in cooperation with ORG to contribute by all means to the prevention and eradication of enforced disappearance . \u201d","\u201c Each ORG shall take effective legislative , administrative , judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction . \u201d","\u201c CARDINAL . Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remained unclarified .","When the remedies provided for in LAW are no longer effective , the statute of limitations relating to acts of enforced disappearance shall be suspended until these remedies are re - established .","Statutes of limitations , where they exist , relating to acts of disappearance shall be substantial and commensurate with the extreme seriousness of the offence . \u201d","\u201c The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation , including the means for as complete a rehabilitation as possible . In the event of the death of the victim as a result of an act of enforced disappearance , their dependents shall also be entitled to compensation . \u201d","ORG on Enforced or Involuntary Disappearance has issued , inter alia , the following General Comments on the above Declaration :","\u201c General PERSON on LAW ( E \/ CN.CARDINAL\/CARDINAL\/CARDINAL\/CARDINAL DATE )","...","Article CARDINAL establishes fundamental principles intended to clarify the nature of enforced disappearances and their criminal consequences . The sense and general purpose of the Article is to ensure conditions such that those responsible for acts constituting enforced disappearance are brought to justice within a restrictive approach to statutory limitations . ...","The definition of \u2018 continuing offence\u2019 ( para . CARDINAL ) is of crucial importance for establishing the responsibilities of the ORG authorities . Moreover , this LAW imposes very restrictive conditions . The LAW is intended to prevent perpetrators of those criminal acts from taking advantage of statutes of limitations . ... \u201d","\u201c General PERSON on LAW ( CARDINAL\/CN.CARDINAL\/CARDINAL\/CARDINAL , DATE )","Article CARDINAL also explicitly mentions the right of victims and their family to \u2018 adequate NORP . GPE are , therefore , under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation . In addition to the victims who survived the disappearance , their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim , his or her dependants are entitled to compensation .","Compensation shall be \u2018 adequate\u2019 i.e. proportionate to the gravity of the human rights violation ( e.g. the period of disappearance , the conditions of detention , etc . ) and to the suffering of the victim and the family . Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm , lost opportunities , material damages and loss of earnings , harm to reputation and costs required for legal or expert assistance . Civil claims for compensation shall not be limited by amnesty laws , made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators .","The right to adequate compensation for acts of enforced disappearance under LAW shall be distinguished from the right to compensation for arbitrary executions . In other words , the right of compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim . \u2018 In the event of the death of the victim as a result of an act of enforced disappearance\u2019 , the dependants are , however , entitled to additional compensation by virtue of the last sentence of LAW . If the death of the victim can not be established by means of exhumation or similar forms of evidence , States have an obligation to provide for appropriate legal procedures leading to the presumption of death or a similar legal status of the victim which entitles the dependants to exercise their right to compensation . ... As a general principle , no victim of enforced disappearance shall be presumed dead over the objections of the family . \u201d","This Convention provides , inter alia :","\u201c CARDINAL . No one shall be subjected to enforced disappearance .","No exceptional circumstances whatsoever , whether a state of war or a threat of war , internal political instability or any other public emergency , may be invoked as a justification for enforced disappearance . \u201d","\u201c For the purposes of this Convention , \u2018 enforced ORG is considered to be the arrest , detention , abduction or any other form of deprivation of liberty by agents of the ORG or by persons or groups of persons acting with the authorisation , support or acquiescence of the ORG , followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person , which place such a person outside the protection of the law . \u201d","\u201c ORG shall take appropriate measures to investigate acts defined in LAW committed by persons or groups of persons acting without the authorisation , support or acquiescence of the ORG and to bring those responsible to justice . \u201d","\u201c ORG shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law . \u201d","\u201c The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law . \u201d","\u201c Without prejudice to LAW ,","A ORG which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings :","( a ) Is of long duration and is proportionate to the extreme seriousness of this offence ;","( b ) Commences from the moment when the offence of enforced disappearance ceases , taking into account its continuous nature .","Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation . \u201d","This Convention provides , inter alia :","\u201c The States Parties to this Convention undertake :","a. Not to practice , permit , or tolerate the forced disappearance of persons , even in states of emergency or suspension of individual guarantees ;","b. To punish within their jurisdictions , those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories ;","c. To cooperate with one another in helping to prevent , punish , and eliminate the forced disappearance of persons ;","d. To take legislative , administrative , judicial , and any other measures necessary to comply with the commitments undertaken in this LAW . \u201d","\u201c For the purposes of this Convention , forced disappearance is considered to be the act of depriving a person or persons of his or their freedom , in whatever way , perpetrated by agents of the ORG or by persons or groups of persons acting with the authorisation , support , or acquiescence of the ORG , followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person , thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees . \u201d","\u201c The States Parties undertake to adopt , in accordance with their constitutional procedures , the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity . This offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined ... \u201d","In PERSON v. GPE , the PERSON had to deal with the ratione temporis exception raised by the government in that case , since the disappearance itself had taken place before the critical date ( acceptance of the compulsory jurisdiction in DATE ) . The court considered that forced disappearances implied the violation of various human rights and that the effects of such infringements \u2013 even though some may have been completed \u2013 \u201c may be prolonged continuously or permanently until such time as the victim \u2019s fate or whereabouts are established \u201d ( see PERSON , DATE , preliminary objections , \u00a7 CARDINAL ) .","Mr PERSON \u2019s fate or whereabouts were not known to his family until DATE , after the date on which GPE accepted the jurisdiction of the court . This led to the PERSON declaring itself competent ratione temporis to examine the \u201c effects and actions \u201d subsequent to the critical date . However , it accepted the government \u2019s preliminary objection as regards the deprivation of PERSON liberty and his murder , which had been completed before the critical date and could not be considered per se to be continuous .","In its judgment on the merits ( DATE , p. CARDINAL ) , the PERSON considered the disappearance as marking the beginning of a \u201c continuing situation \u201d . It proceeded to examine the complaint under LAW in relation to LAW and declared that GPE had violated the right of PERSON PERSON \u2019s relatives to have his disappearance and death effectively investigated , to have those responsible prosecuted and punished where appropriate , and to be compensated , notwithstanding the lack of temporal competence to deal with the substantive complaints .","The PERSON came to a similar conclusion in cases of disappearances in which the victim \u2019s whereabouts had never been established . In Serrano- PERSON v. GPE ( judgment of DATE , preliminary objections ) , the court found that it had no competence to examine , under Articles CARDINAL , CARDINAL and DATE ( right to personal liberty ) , the disappearances of the sisters as such , since they had allegedly taken place DATE before GPE had accepted the contentious jurisdiction of the court . It came to the same conclusion as regards the procedural violations invoked under LAW , since they were linked to the alleged forced disappearance ( \u00a7 CARDINAL ) . However , the ORG considered that all the facts that occurred following the critical date and which referred to ORG CARDINAL and CARDINAL of the Convention ( filing of a petition for habeas corpus , criminal proceedings ) , were not excluded by the temporal limitation established by the ORG , since they constituted \u201c independent facts \u201d or \u201c specific and autonomous violations concerning denial of justice \u201d ( \u00a7 CARDINAL ) . On the merits , it declared that the ORG had violated Articles CARDINAL and CARDINAL of the LAW , to the detriment of both sisters and their next of kin ( judgment of DATE ) .","In a more recent judgment , Heliodoro GPE v. GPE of CARDINAL DATE , ORG made a clear distinction between forced disappearances and extrajudicial killings for the purposes of its jurisdiction ratione temporis . The case concerned the forced disappearance in DATE ( DATE before GPE accepted the compulsory jurisdiction of the court ) of Heliodoro GPE , whose remains were found in DATE . It considered that the victim should be presumed dead before the date of acceptance of the court \u2019s jurisdiction ( DATE ) , with regard to the fact DATE had elapsed since his disappearance . It characterised the extrajudicial killing as an instantaneous act and accepted the government \u2019s preliminary exception as regards the right to life ( DATE ) . However , with regard to the forced disappearance as such , it applied its previous case - law and found that it was a permanent or continuous violation , since it had been prolonged after the critical date until the victim \u2019s remains were found in DATE . It was competent to examine the following violations arising out of the disappearance : the deprivation of liberty of the victim ( Article CARDINAL ) , the violation of the relatives\u2019 right to humane treatment ( Article CARDINAL ) , the non - compliance with the obligation to investigate into the alleged disappearance , the failure to incriminate forced disappearances and tortures in domestic law and the failure to investigate and punish acts of torture . On the merits , the ORG went on to find a violation of the right to liberty ( Article CARDINAL ) and a violation of ORG CARDINAL and CARDINAL of ORG on Forced Disappearance of Persons with regard to the deceased . It further found a breach of LAW ( right to humane treatment ) , CARDINAL in respect of his relatives .","As regards forced disappearances , the ORG recognised \u201c the degree of suffering involved in being held indefinitely without contact with the outside world \u201d and held that they constituted \u201c cruel and inhuman treatment \u201d contrary to LAW ( \u201c the LAW \u201d ) with regard to the disappeared . Disappearances often resulted in breaches of the right to life , embodied in LAW . In General Comment No . CARDINAL on the right to life , the ORG stated :","\u201c GPE Parties should also take specific and effective measures to prevent the disappearance of individuals , something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life . Furthermore , States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life . \u201d","In a number of cases , the ORG has found that a breach of LAW has occurred , but has been unable to make a final decision in that regard in the absence of confirmation of death . Disappearances may also lead to violations of Articles CARDINAL ( right to liberty and security of person ) , CARDINAL ( right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person ) and CARDINAL with regard to the relatives of the disappeared , in view of the stress , anguish and uncertainty caused by the disappearance .","The positive obligation to investigate disappearances ( mentioned in the General Comment on the right to life ) may also be breached in this type of case ; in these situations there may be a breach of LAW ( which enshrines the right to an effective remedy ) in conjunction with LAW . The ORG , in General PERSON No . DATE on LAW and QUANTITY of the LAW , emphasised that the failure to investigate in respect of grave violations such as enforced disappearances or torture , as well as the failure to bring to justice perpetrators of such violations , could give rise to a separate breach of the LAW . The ORG was thus empowered to find a violation of Articles CARDINAL , CARDINAL and CARDINAL read in conjunction with LAW of the LAW .","NORP However , when the disappearance occurred before the date that the LAW or LAW entered into force for a ORG , the approach of the ORG to whether it has temporal jurisdiction has evolved over DATE .","In the cases of missing persons in GPE ( GPE v. GPE , CARDINAL DATE ) , ORG had found that LAW of the LAW could not be violated by ORG in the absence of jurisdiction over a substantive violation . In PERSON v. GPE , DATE , the ORG declared the communication inadmissible ratione temporis in respect of the author \u2019s son , whose body had never been recovered since his death in DATE . ORG held that ORG judgment of DATE rejecting the author \u2019s complaint as regards the application of the DATE amnesty decree could not be regarded as a new event that could affect the rights of a person who was killed in DATE , prior to the international entry into force of the LAW and the entry into force of LAW for GPE .","In GPE , DATE , the author alleged that his son had been removed by members of the military in DATE and was last seen in DATE . GPE became a party to LAW in DATE with a declaration limiting the ORG \u2019s competence to facts arising after DATE . ORG found that although the initial abduction occurred outside their temporal jurisdiction \u201c the alleged violations of the LAW , if confirmed on the merits , may have occurred or continued after the entry into force of the LAW \u201d . ORG went on to find a violation of ORG and CARDINAL with regard to the son and LAW with regard to the author and his wife due to their anguish and stress at not knowing their son \u2019s whereabouts . The ORG also emphasised that the ORG had a duty under LAW \u201c to provide the author and his family with an effective remedy , including a thorough and effective investigation into the disappearance and fate of the author \u2019s son ... \u201d which implied that the ORG might have an obligation to investigate matters which had occurred before the entry into force of LAW . Finally , it refrained from finding a violation of LAW , since the author had not abandoned hope for his son \u2019s reappearance .","NORP However , in GPE v. GPE , DATE , ORG , although describing enforced disappearance as a continuing act , noted that the original acts of arrest and abduction , as well as the refusal to give information about the deprivation of freedom , had occurred before the entry into force of the Covenant for Chile . The ORG further considered that the author had made no reference to any action of the ORG after the crucial date ( entry into force of the Optional Protocol ) that would constitute \u201c a confirmation of the enforced disappearance \u201d . For these reasons , it declared the application inadmissible .","More recently in PERSON . v. PERSON , DATE ( see PERSON , p. CARDINAL ) , the ORG applied this act of confirmation approach , and also changed its analysis in considering a failure to investigate a death which had taken place prior to the critical date . Although it found that it had no jurisdiction ratione temporis over the death of PERSON PERSON , it went on to consider the subsequent proceedings and failure to correct his death warrant ( which stated the cause of death as natural ) and their effect on PERSON wife and CARDINAL children . It found that there had been a failure to conduct an inquiry into PERSON death , to prosecute those responsible and to conclude legal proceedings begun by the author to remedy this situation . It concluded that the proceedings had been prolonged at the fault of the authorities , the delay continuing after the entry into force of the LAW and LAW . The authors were therefore affected by the authorities\u2019 failures after this entry into force , and that gave ORG with jurisdiction ratione temporis over the Article CARDINAL claim .","On the merits , the ORG went on to find that \u201c the refusal to conduct an investigation into the death of PERSON , the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. PERSON and her sons , in breach of LAW \u201d ."],"violated_articles":["2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81505","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF BIMER S.A. v. MOLDOVA","importance":3,"conclusion":"Violation of P1-1;Pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant , ORG , is a company incorporated in GPE . From the moment of incorporation its shares were owned by GPE , NORP and NORP investors , it therefore qualified as a company owned by foreign investors and thus benefited from special incentives and guarantees under LAW ( see paragraph CARDINAL below ) .","On DATE Presidential Decree No . CARDINAL ( \u201c the Decree \u201d ) was promulgated . It made possible the creation and operation of duty free shops at land , water and air - border crossings . According to the Decree , the duty free shops were entitled to sell imported goods without having to pay customs tax ( see paragraph CARDINAL below ) .","On DATE the applicant company signed a contract with ORG , at the border between GPE and GPE , providing for the opening of duty free shops on the territory of the customs zone . The contract did not contain any provisions as to its duration . It was approved by the Head of ORG and by the Minister of ORG .","On DATE and on DATE the company obtained CARDINAL licences to operate a duty free shop and a duty free bar , within the shop , at ORG . The licences were issued in accordance with the Decree and they did not contain any provisions as to their duration . Subsequently , the applicant company bought the necessary equipment , built the LOC of the shop and bar and started operating them .","On DATE ORG made an amendment to LAW by which duty free sales outlets were thenceforward restricted to international airports and on board aircraft flying international routes ( see paragraph CARDINAL below ) .","On CARDINAL DATE ORG ordered the closure of all duty free outlets which were not located in international airports or on board aircraft flying international routes ( \u201c the order \u201d ) .","On DATE the applicant company , together with other companies similarly affected , lodged a court action against the order with ORG .","The applicant argued inter alia that the grounds relied on by ORG in closing down its duty free shop and bar were not enumerated in the exhaustive list of grounds for closing down such shops provided for in section CARDINAL of LAW .","NORP Moreover , in the light of CARDINAL of Law No . CARDINAL ( see paragraph CARDINAL below ) , the new amendments to LAW could not have retroactive effect and could be interpreted only as limiting the opening of duty free shops in the future , and not as closing down those already open .","According to the applicant , the order conflicted with section CARDINAL of the Law on Foreign Investments ( see paragraph CARDINAL below ) , which stipulated that the activity of a company owned by foreign investors could be terminated only by a governmental decision or a court order , and only when the company had seriously breached GPE legislation and its articles of incorporation .","The applicant further argued that according to section CARDINAL of the Law on ORG ( see paragraph CARDINAL below ) , in the event of the adoption of new , less favourable legislation , companies owned by foreign investors were entitled to rely on the old legislation for a period of DATE . The DATE period began to run from the date of enactment of the new legislation . Moreover , the second paragraph of the same section specifically provided that foreign - owned companies which enjoyed customs incentives in accordance with the former legislation of GPE had the right to enjoy those incentives after new legislation came into effect .","On DATE ORG ruled in favour of the applicant company and quashed the order , relying inter alia on the following reasons :","\u201c ... The court considers that the order of ORG . CARDINAL of CARDINAL DATE , issued for the purpose of applying PERSON No . CARDINAL of DATE [ concerning the modification of LAW ] , by which the activity of duty free shops was terminated starting with DATE ... is illegal because it is contrary to the legislation in force .","Law No . CARDINAL of DATE , by which LAW was modified ... does not provide for the termination of the activity of the duty free shops already open in places other than airports and on board aeroplanes .","Moreover , the above mentioned Order [ of ORG ] runs contrary to LAW which does not provide among the reasons for liquidating a duty free shop the reason provided for in the Order \u2013 a change in the legislation .","The ORG considers that the modified text of LAW can not have a bearing on the duty free shops already open and in operation , because this would also run contrary to LAW , which stipulates that a law can not be retroactive or ultra active .","Since the applicants are enterprises with foreign investments , the ORG considers that the LAW runs contrary to LAW , which provides that the foreign investments are guaranteed full security and protection in GPE .","Moreover , according to LAW , the applicants ' activity ... can be terminated only by means of a Government Decision or a court judgment and only if they have seriously breached the legislation or their statute of incorporation . However , the Order in question does not contain any reference to any breaches committed by the applicant and is not based on a Government Decision or a court judgment .","It is necessary to indicate that in accordance with LAW , in case of enactment of new laws which change the conditions of a company with foreign investment created before the enactment of such laws , the company in question has the right to guide itself by the old legislation for DATE calculated from the date of enactment of the new legislation .","According to the second paragraph of LAW of ORG , foreign investors and enterprises with foreign capital which enjoyed customs , tax and other incentives in accordance with the legislation of GPE formerly in force , have the right to enjoy these incentives after the new legislation comes into effect .","...","The court considers that the Order violated the applicants ' right to property guaranteed by LAW , DATE and CARDINAL of ORG and by LAW . \u201d","ORG appealed against this judgment to ORG .","On DATE ORG allowed ORG appeal , quashed the judgment of ORG and dismissed the applicant 's action . The grounds relied on by ORG were as follows :","\u201c The first instance court , in finding for the applicants , reached conclusions which are based on a wrong interpretation of the law because the Order in question does not provide for a total termination of the activity of duty free shops but only for the termination of their activity in certain places .","Therefore the first instance court 's conclusion that the Order had as effect the termination of the entire activity of the foreign investors who had opened these shops and that thus their right to total security and protection provided for by LAW was violated is incorrect .","Article CARDINAL of LAW , as modified by LAW . CARDINAL of DATE , defines the duty free as a customs regime which consists of sale of goods under customs supervision in especially dedicated places in international airports and onboard aeroplanes .","Accordingly , through this provision the legislators regulate and limit the places in which such shops can be located but they do not create any interdiction in so far as their activity is concerned . Therefore the arguments of the first instance court that the right to activity of the foreign investors has been violated , is devoid of legal support . The applicants are not prohibited to place their shops in the places provided for by law , i.e. in airports and onboard aeroplanes .","...","According to the documents of incorporation of these companies , they practice different kinds of activities , including the sale of goods in the Duty Free regime .","The conclusion of the first instance court that the Order violated the right to property guaranteed by the LAW and the international law is incorrect because the companies in question have the right to open duty free shops in other places , as provided by LAW . The activity of the companies is not totally stopped and nothing is taken away from them .","...","The first instance court 's reference to LAW which says that the activity of a company with foreign investment can only be terminated by a Government Decision or a court judgment is wrong because the Order did not totally terminate the applicants ' activity but only the sale of goods in the Duty Free regime . They can do other activities which are provided in their documents of incorporation . \u201d","ORG did not express any view on the applicant 's argument or the ruling of ORG concerning the applicability of the second paragraph of LAW ( CARDINAL ) of ORG to the case . Its judgment was final .","The relevant extracts from LAW read as follows :","\u201c Article CARDINAL . The right to private property and its protection","( CARDINAL ) The right to possess private property ... [ is ] guaranteed .","( CARDINAL ) No one may have his property expropriated except for reasons dictated by public necessity , as established by law , and subject to the payment of just and appropriate compensation made in advance .","( CARDINAL ) No assets legally acquired may be confiscated . The effective presumption is that of legal acquirement .","... \u201d","Presidential Decree No . CARDINAL of DATE , in so far as relevant , reads :","\u201c ...","Section CARDINAL . Imported goods which are to be sold at \u201c duty free \u201d shops ... shall be exempted from customs tax ;","...","\u201c Duty free \u201d shops may be operated at the road , naval and air border crossing points .... \u201d","The Law on Foreign Investments of DATE , in so far as relevant , reads :","\u201c Section CARDINAL . The applicable law","...","CARDINAL .... Laws which contradict the present law in the part concerning foreign investments shall not be applicable .","...","Section CARDINAL . ORG incentives for goods brought into the country","The goods referred to in section CARDINAL of the present law [ cars , equipment , office equipment , row material ... ] , which are brought into the country as a contribution to the statutory capital shall be exempted from customs tax .","...","Section CARDINAL . ORG incentives for import and export","...","A company owned by foreign investors shall be exempt from customs tax for merchandise ( raw materials ... ) , imported for the purpose of producing goods to be exported .","Section CARDINAL . Guarantees concerning nationalisation or expropriation of foreign capital investments","Foreign investments in GPE are granted complete security and protection .","Foreign investments can not be expropriated , nationalised or subjected to any other similar measures in any way other than according to the law , on the basis of a law serving the national interest and against the payment of appropriate compensation .","Compensation shall correspond to the value of investment assessed immediately before the moment of expropriation , nationalisation or other similar measure . It must be paid not DATE from the moment the above measures are taken , with an appropriate bank interest rate calculated before the date of payment . The compensation has to be paid in the currency in which the investment was made and it may be transferred abroad without any restrictions .","NORP The payment of compensation is ensured by the State body entitled to carry out the expropriation , nationalisation or any other similar measures . The State body must determine the value of investment and pay the compensation not later than the day of the expropriation , nationalisation or other similar measure . If the State body does not have sufficient funds , the compensation shall be paid from the ORG budget .","The affected investor is entitled to request verification of the legality of the expropriation , nationalisation or other similar measure and of the amount of the compensation in the manner provided for by law . \u201d","Section CARDINAL . Guarantees concerning forcible suspension and cessation of activity","NORP The activity of an enterprise with foreign investors can be forcibly suspended only in accordance with a decision of ORG or a competent court , when the enterprise has seriously violated the terms of the legislation of GPE or the provisions of its articles of incorporation ...","NORP If the activity of an enterprise with foreign investors is suspended on the initiative of a body of State control , and no violations of legislation or of the constitutive documents are found , the above body shall compensate the enterprise for any damage including lost profit . If the State body does not have sufficient money , the payment is made from the ORG budget .","NORP The assets of a foreign investor whose enterprise is liquidated or who withdraws from the enterprise may be taken abroad by him without any licence . \u201d","...","\u201c Section CARDINAL . Guarantees concerning changes of legislation","NORP In the event of the adoption of new legislative acts changing the conditions of activity of an enterprise with foreign capital created before the adoption of such acts , that enterprise shall have the right to have applied to it the legislation of GPE operating on DATE of its creation for DATE calculated from DATE of the entry into force of the new legislative act .","NORP The provisions of paragraph CARDINAL do not extend to legislation related to tax , customs , finance , monetary , credit , currency or anti - trust measures , or to legislation regulating ORG security , protection of the environment , social order , morals or the health of the population .","Foreign investors and enterprises with foreign investors which enjoyed customs , tax and other incentives in accordance with the former legislation of GPE shall enjoy those incentives after the new legislation comes into effect .... \u201d","The Customs Code of GPE as amended on DATE reads :","\u201c Section CARDINAL . The duty free outlet \u2013 a customs regime ( regim vamal ) which consists of the sale of goods under customs supervision in specially designed places situated in international airports and on board aircraft .","Section CARDINAL . A duty free outlet may be closed down if the licence expires or if it is annulled or withdrawn in accordance with the law . \u201d","The relevant provisions of Law No . CARDINAL of DATE read as follows :","\u201c Section CARDINAL \u00a7 CARDINAL . A law may have effect only during the period of its validity and may not have retroactive or prospective effect . \u201d","The treaty between GPE and GPE concerning the encouragement and reciprocal protection of investment , signed at GPE on DATE , in so far as relevant , reads as follows :","\u201c ...","Article II . CARDINAL . ( a ) Investment shall at all times be accorded fair and equitable treatment , shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law .","( b ) Neither Party shall in any way impair by arbitrary or discriminatory measures the management , operation , maintenance , use , enjoyment , acquisition , expansion , or disposal of investments . For purposes of dispute resolution under ORG and ORG , a measure may be arbitrary or discriminatory notwithstanding the fact that a ORG has had or has exercised the opportunity to review such measure in the courts or administrative tribunals of a ORG .","( c ) ORG shall observe any obligation it may have entered into with regard to investments .","...","LAW . CARDINAL . Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropriation or nationalization ( \" expropriation \" ) except : for public purpose ; in a nondiscriminatory manner ; upon payment of prompt , adequate and effective compensation ; and in accordance with due process of law and the general principles of treatment provided for in Article II(CARDINAL ) . Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known , whichever is earlier ; be calculated in a freely usable currency on the basis of the prevailing market rate of exchange at that time ; be paid without delay ; include interest at a commercially reasonable rate from the date of expropriation ; be fully realizable ; and be freely transferable . \u201d","On DATE the Commission on ORG of ORG replied to an enquiry made by the applicant concerning the interpretation of LAW of ORG . In a letter signed by the Chairman of the Commission , Mr. PERSON , it stated the following :","\u201c LAW provides that in the event of new legislation , changing the conditions of activity of a company with foreign investors which was created before the adoption of such new legislation , that company has the right to rely on the legislation in force on DATE of its creation for DATE calculated from DATE of the entry into force of the new legislation .","The above is a general rule , which refers to any legislation changing the general conditions of activity of a company owned by foreign investors .","Paragraph CARDINAL of LAW states the type of legislation not covered by the rule in LAW , and which is applicable from the very moment of its entering into force .","LAW states the exceptions to LAW . These exceptions refer only to privileges ( facilit\u0103\u0163i ) , incentives ( \u00eenlesniri ) , exemption of payments ( scutiri de pl\u0103\u0163i ) , etc . , which were provided for in law when the company was set up .","Accordingly , LAW does not contradict the provisions of LAW , but makes clear that companies with foreign investors , which enjoyed customs , tax or other forms of privileges in accordance with the legislation of GPE formerly in force , have the right to enjoy those privileges for DATE after the entry into force of new legislation . \u201d","In their observations of DATE the ORG argued that the above letter had not been signed by the Chairman of the Commission on ORG of the ORG , but by an ordinary member of that ORG and that in any event , according to NORP legislation , it could not be considered an official interpretation of section QUANTITY of the Law on Foreign Investment but merely an explanation . They requested the ORG not to admit the letter as evidence .","The applicant company submitted for the ORG 's attention a judgment of ORG in the case of ORG versus ORG in which a similar matter had been decided . In that case the applicant had successfully challenged the closure of another duty free shop operated by it at the GPE customs point on the same grounds as in the present case . By its final judgment of DATE ORG found inter alia that the applicant company had been entitled to rely on the second paragraph of LAW ( CARDINAL ) of the Law on ORG and that the amended section CARDINAL of LAW could not have any bearing on the applicant company since according to section DATE of Law No . CARDINAL it could not have retroactive effect on the duty free shops opened prior to its enactment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105139","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF PETR SEVASTYANOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","DATE ORG ( \u201c the NORP ORG \u201d ) , composed of CARDINAL professional judge , PERSON , and CARDINAL lay judges , PERSON and PERSON , examined the charges brought against the applicant in connection with a drug - related offence .","On DATE ORG found the applicant guilty of illegal acquisition and storage of narcotics on a particularly large scale for the purpose of sale and of illegal sale of drugs and sentenced him to DATE imprisonment .","The applicant and his counsel appealed against the judgment of CARDINAL September CARDINAL to ORG ( \u201c the ORG \u201d ) . They complained , in particular , that lay judge ORG had not been appointed in accordance with the law and had not been independent because he worked as a clerk ( \u0441\u0435\u043a\u0440\u0435\u0442\u0430\u0440\u044c \u0441\u0443\u0434\u0430 ) at ORG .","On DATE ORG returned the case to the first - instance court and ordered it to look into the applicant \u2019s complaints about the competency of lay judge ORG .","The results of the inquiry carried out by ORG in respect of the competency of lay judge PERSON to sit in the case were summarised in a report of CARDINAL DATE , which stated as follows :","\u201c ... The inquiry established that ORG had at its disposal a copy of the decision of CARDINAL DATE of ORG of GPE confirming the results of the additional selection of lay judges of LOC as well as a copy of the list of lay judges elected by the staff of ORG , which comprised CARDINAL persons ( PERSON and Mr PERSON ) and which had not been properly certified .","According to information obtained from ORG and from ORG , the originals of the documents on the election of lay judges of ORG had not been kept .","Nevertheless , lay judge ORG had been in possession of the card [ identifying him as a ] lay judge of LOC , which had been valid until DATE .","The presidential decrees of CARDINAL No . CARDINAL and CARDINAL No . CARDINAL , CARDINAL No . CARDINAL , CARDINAL.CARDINAL.CARDINAL No.CARDINAL , and CARDINAL No.CARDINAL extended the terms of office of previously selected lay judges until the adoption of LAW on the selection of lay judges and the compilation of general lists of lay judges . \u201d","On DATE ORG examined the case on appeal . It held that the applicant \u2019s guilt of acquisition of drugs for the purpose of sale and the sale of drugs had been proved by the evidence examined during the trial . Regarding the allegedly unlawful composition of the trial court , the appeal court held that the term of office of lay judge ORG had been extended in accordance with the Presidential decrees . The court also noted that the fact that lay judge PERSON worked for the court as a clerk did not preclude him from being elected as a lay judge . ORG reduced the applicant \u2019s sentence to DATE imprisonment and upheld the remainder of the judgment .","On DATE ORG of GPE ( \u201c the ORG \u201d ) reviewed the case under the supervisory review procedure . ORG held that the applicant \u2019s guilt of acquisition and storage of drugs on a large scale had been established . However , the materials of the criminal case file had not contained any evidence which would allow it to establish with sufficient credibility that the applicant had acquired the drugs for the purpose of sale and that he had sold them . In those circumstances , the applicant \u2019s actions should have been classified as illicit procurement and storage of drugs without intent to sell .","ORG amended the judgment of DATE and the decision of DATE , convicted the applicant of illicit procurement and storage of drugs without intent to sell and sentenced him to CARDINAL GPE imprisonment . With reference to LAW of DATE , the court ordered that the applicant be released from serving his sentence and , consequently , from custody .","DATE Code provided that hearings in first - instance courts dealing with criminal cases should , subject to certain exceptions , be conducted by a single professional judge or by CARDINAL professional and CARDINAL lay judges . In their judicial capacity , lay judges enjoyed the same rights as professional judges .","Part III of the PERSON set out the procedure for the election of lay judges . Elections of lay judges of district ( town ) courts were called by the Presidium of ORG and were carried out by the executive committees of the district or town ORG ( Articles CARDINAL and DATE ) . Lay judges were elected during general staff meetings , general meetings and gatherings of citizens at their places of residence . A separate , open vote was held in respect of each candidate . Persons who received PERCENT of the votes were elected ( LAW ) . The results of the elections had to be recorded in TIME of the meetings ( Article CARDINAL ) . The relevant executive committee determined the results of the elections , compiled the list of elected lay judges , approved that list , published the information on the results of the elections and sent the list of lay judges to the district court ( Articles CARDINAL and CARDINAL ) .","Article CARDINAL of the LAW provides that the President of the GPE shall issue decrees and orders which shall have binding force on the entire territory of GPE and which should not run contrary to LAW and federal laws .","The Decree of DATE provided that lay judges of district ( town ) courts had to continue their service until the adoption of the respective federal law . Executive authorities of the constituent elements of GPE had , if necessary , to organise by - elections of lay judges of district ( town ) courts at general staff meetings , general meetings and gatherings of citizens at their places of residence .","The Decree of DATE provided , among other things , that lay judges of district courts had to continue their service until the adoption of the federal law on the procedure for appointment ( election ) of lay judges .","The Decree of DATE provided that lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges confirmed by a regional legislative body .","The Act provided in CARDINAL that citizens of GPE had a right to take part in the administration of justice in the quality of lay judges . Lay judges were persons empowered by law to hear civil and criminal cases as part of the court panel and carry out their judicial duties on a non - professional basis .","Section CARDINAL provided that lists of lay judges for every district court had to be compiled by respective local self - government bodies on the basis of lists of voters in the district . Such lists had to be validated by regional legislative assembly and submitted to the district court . The term of office of lay judges on the list was DATE .","Section CARDINAL provided that the following persons could not be selected as lay judges : persons who had convictions which had not been quashed , persons fully or partially deprived of their legal capacity by a competent court , civil servants of category \u201c A \u201d and persons occupying elective posts in local government bodies , prosecutors , investigators and persons registered with either drugs counsellors or psychiatrists .","Sections CARDINAL and CARDINAL provided that the president of the respective court had to draw a certain number of lay judges by lot from the list . Lay judges to sit in a particular case were to be drawn by lot by the professional judge who would hear the case from those drawn by lot by the president of the court .","Section CARDINAL provided that lay judges could be called to sit in cases heard by a district court for a period of DATE , or as long as the proceedings in a particular case lasted . Lay judges could not be called on more than once a year .","The ruling provided that the president of a given court had to draw by lot from the list of lay judges , CARDINAL names for each judge of the court . The lay judges for a particular case had to be drawn by lot by the professional judge to whom the case had been assigned . The sitting lay judges had to remain in office until new lists of lay judges arrived at the court . The regulation also provided that each court had to keep a record of the results of the selection at random of lay judges ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104359","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2011,"docname":"CASE OF GERA DE PETRI TESTAFERRATA BONICI GHAXAQ v. MALTA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P1-1;No violation of Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - award","judges":"Joseph Zammit Mckeon;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE , GPE .","The applicant is the owner of a property , known as PERSON , in PERSON . She partly owns some of the ground floor shops , and entirely owns the house , from the rest of the ground floor and the basement to the top floors .","The property had been damaged during the Second World War and the applicant 's ancestors , from whom she inherited the property , had on DATE applied to ORG to obtain the necessary funding to have the property restored . At the time , the building consisted of DATE town house including a few rooms on the ground floor which were rented out as shops . DATE ORG had paid out a sum corresponding to ORG CARDINAL,CARDINAL , for the premises excluding the shops in respect of which no amount had been paid as a consequence of undefined claims . According to the applicant the sums awarded covered expenses for required temporary works to secure the LOC , as had originally been claimed , and not the entire works to repair the whole of the property . While the Government contended that , despite the payments , the building was left in a state of neglect , the domestic courts acknowledged that the applicant had attempted to reconstruct the damaged area ( page CARDINAL of the Constitutional Court judgment of CARDINAL DATE )","In DATE the then ORG issued an order taking control of the property under title of possession and use , that is , a forced temporary taking of property subject to the payment of DATE compensation , known as a \u201c recognition rent \u201d , to the owners .","NORP Despite this order , the applicant 's ancestors refused to hand over the keys of the building . Thus , the property was left unused until DATE when the building was forced open by the Government , by which time it had deteriorated considerably .","NORP In DATE the Government commenced works to repair the property with a view to using it as a cafeteria and offices in conjunction with the LOC situated nearby . The Government evicted the tenants of the shops on the ground floor which had been leased on the basis of controlled rents , and a hall in the upper floors was converted into a performance hall for small audiences . Subsequently a theatre restaurant was housed in the basement of the building and another floor was added to house the foundation for NORP patrimony \u201c PERSON \u201d , a Government foundation promoting national heritage , which also serves as a commercial company dealing in publications .","On DATE the ORG issued a \u201c notice to treat \u201d by which the owner was informed that the compensation offered by way of recognition rent amounted to CARDINAL NORP Liras ( MTL \u2013 approximately QUANTITY ( EUR ) ) . The amount was based on the DATE rental value ( according to rent laws relating to renting of residences \u2013 not commercial LOC \u2013 in force at the time ) increased by PERCENT to allow for inflation . By a judicial letter of DATE the applicant 's ancestors rejected the offer and in DATE the Commissioner of Lands instituted compensation proceedings before ORG ( \u201c LAB \u201d ) . These proceedings were suspended sine die on DATE ( see Annex A for a detailed chronological list of hearings in the proceedings ) . Pending these proceedings , the applicant inherited the property of which she gained possession by public deed on DATE . The applicant submitted that even if these proceedings had been concluded , the ORG would have been unable to establish a fair rent reflecting market values , since it was bound by law to assess rent on the basis of DATE rental values .","After repairing the property the Government allocated it and entrusted its management to ORG ( \u201c MTMC \u201d ) , the organ of ORG which administers LOC . It rented the property to a number of commercial entities , including offices , cafeterias , reception halls , a restaurant and a publishing house . According to the Government , the economic income received by the MTMC per year amounted to QUANTITY and the Government had spent ORG CARDINAL,CARDINAL restoring the building and meeting its maintenance costs .","In DATE the applicant instituted constitutional redress proceedings in which she brought complaints under Articles CARDINAL and CARDINAL of the Convention and LAW to the Convention . She complained that the property , estimated at the time to be worth ORG CARDINAL ( approximately EUR CARDINAL ) , was not used for a public purpose , that she had not been offered fair compensation , that the proceedings pending before the LAB were taking an unreasonably long time to be decided and that she had been discriminated against vis - \u00e0 - vis other property owners who , unlike her , had their properties expropriated by outright purchase and not subject to the less favourable forced rents . She requested the court to grant adequate redress and to award damages .","On DATE ORG ( FAC ) found for the applicant . It declared the taking null and void , as the property was not being used for a public purpose , and therefore contrary to the Convention . It further found a violation of the applicant 's right to a fair hearing within a reasonable time . It considered that the period to be taken into account started running on DATE , the date when the applicant 's right to compensation arose , and had not yet ended DATE . It noted that it had taken the Government DATE to issue a \u201c notice to treat \u201d without which compensation proceedings could not be initiated . This , together with the lack of initiative of the Commissioner of Lands to pursue those proceedings , was enough to allow it to conclude that the applicant had suffered a serious prejudice , incompatible with LAW , over DATE during which she had been left without compensation . It declared that it was not necessary to examine the Article CARDINAL complaint . The issue of payment of damages in respect of the violation of Article CARDINAL ( which depended on the value of the property ) was reserved .","The Government appealed against the above - mentioned judgment .","The applicant submitted that during the proceedings , lasting DATE , the judges were replaced several times and there had been numerous adjournments ( see Annex B for a detailed chronological list of hearings in the proceedings ) .","On DATE ORG upheld the first - instance judgment in part . It held that there had been a violation of LAW to the LAW , in that a proper balance had not been preserved between the private interest and the public need . While it was true that the commercial purposes of the taking appeared to have superseded the original purpose , it was in the light of the compensation offered to the applicant ( ORG CARDINAL yearly rent for a property valued at approximately ORG CARDINAL,CARDINAL,CARDINAL ) and the fact that she had been deprived of her property for DATE , that she had been made to bear a disproportionate burden . The fact that the property had been refurbished by the ORG had little bearing on this conclusion , although it could be relevant in determining the compensation terms . It declared the Governor 's declaration of DATE null and void and ordered the Government to release the property . ORG , however , found that there had not been a violation of LAW of the length of the proceedings . It was true that the proceedings had been lengthy , the \u201c notice to treat \u201d having been issued DATE after the taking of the property and the proceedings before the LAB having not yet been concluded . However , the court noted that the time to be considered started running after the PERSON took effect in respect of GPE , namely on DATE ( when GPE introduced the right of individual petition ) and the applicant had failed to submit evidence of what had caused the delay after DATE . As to the LAW complaint , the court held that it had been misconceived , since the first - instance court had not examined it . As to the adequacy of compensation , it confirmed that the release of the property was an adequate remedy for the violation of LAW to the LAW , and the reservation of the issue of compensation by the first court was related to the Article CARDINAL complaint , which had not been upheld on appeal . However , it reserved any rights the applicant might wish to assert in respect of compensation for the \u201c possession and use \u201d of the LOC during the relevant period .","On an unspecified date following this judgment , the applicant obtained an eviction order against the Government . However , prior to its enforcement , on DATE , the ORG issued a fresh order , this time under title of public tenure in accordance with ORG ) Ordinance ( \u201c the LAW \u201d ) . Included in the taking were a number of shops and offices adjacent to PERSON , of which the applicant owned an undivided share together with third parties . The Government offered an DATE recognition rent of ORG CARDINAL ( approximately EUR CARDINAL ) , basing it on section CARDINAL ( CARDINAL ) ( c ) of the LAW ( see \u201c Relevant Domestic Law \u201d below ) , without indicating what portion of this amount was due for the applicant 's house , of which she was the sole owner .","According to an architect 's valuation , the present DATE rental value of PERSON , excluding the other adjacent property , amounts to MTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) per year . The market value in the case of sale is estimated to be MTL CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) ; the Government , however , estimate it to be only MTL CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) .","On an unspecified date , the applicant lodged ordinary proceedings ( CARDINAL\/CARDINAL - ATB CARDINAL ) , complaining that the new taking of the property under public tenure had been unlawful , as it was not permissible under LAW to take property by means of public tenure if it was not already being used by the Government .","At the request of the Government the eviction order was suspended pending the outcome of those proceedings .","On the date of introduction of this application the proceedings were still pending . ORG , in its ordinary jurisdiction , gave judgment in the case on DATE . The latter held that the taking of the property by public tenure had been ultra vires and was therefore null and void . An appeal was lodged on DATE and the case is still pending .","On an unspecified date the applicant lodged further constitutional redress proceedings ( CARDINAL - ATB CARDINAL A ) , claiming that the taking of the property under public tenure breached Articles CARDINAL and CARDINAL of the Convention and LAW to the Convention .","She claimed that the taking had not been in the public interest as the property was mainly being used for commercial purposes in relation to the Theatre , even though the Government had at their disposal other properties in the vicinity which could have served the same purpose . She also claimed that the inadequate compensation offered by the Government was arbitrary and not in accordance with the law . Compensation for the taking of a property under public tenure had to be calculated on the basis of section CARDINAL ( CARDINAL ) of the LAW and not section CARDINAL ( CARDINAL ) ( c ) , which applied where property taken under \u201c public tenure \u201d was converted by absolute purchase ( see LAW below ) . Although it could be supposed that the ORG 's offer amounted to more than what was applicable by law , it did not reflect the real current market value , since the calculations had been based on rental values applicable in DATE . Even assuming that the offer comprised compensation for PERSON alone and not the adjacent properties , it still represented a fifth of its real value on the market ; therefore , it did not constitute adequate compensation and the applicant was being made to bear an excessive burden . She further claimed that the decision to take her property under public tenure had been arbitrary and discriminatory . At the time CARDINAL other properties had been taken under this title , as opposed to outright purchase . All the properties had already been in the possession of the ORG under a different title and were all related to slum clearance and housing projects , unlike the applicant 's . Finally , she complained that the taking was in breach of LAW , in that she was not given a fair hearing within a reasonable time , as she had no real and effective possibility of having the value of her property determined by a court . Notwithstanding the Constitutional Court judgment in her favour , in these circumstances the applicant remained without an effective remedy .","These proceedings are still pending .","Compensation for damage arising from the violation of LAW No . CARDINAL","On DATE the applicant requested ORG ( FAC ) to determine the claim ( ORG ) for the compensation due for the violation of LAW No . CARDINAL in accordance with LAW ( \u201c COCP \u201d ) . On DATE ORG ( FAC ) rejected the applicant 's claim . It held that ORG had only reserved the matter of compensation in relation to LAW , of which no violation had been found by ORG , which had also found that declaring the taking null and void was a sufficient remedy for the violation of LAW No . CARDINAL . Thus , ORG judgment of DATE had been final , the applicant 's claims having been decided in their entirety , except for the reservation in respect of payment due for the possession and use of the land for the relevant period , which was subject to ordinary civil remedies . In consequence Article CARDINAL of the ORG did not apply to the present case .","That finding was confirmed on appeal by a judgment of ORG of DATE .","Compensation for damage arising from the possession and use of the premises","On DATE the applicant instituted proceedings against the Commissioner of Lands ( CARDINAL\/CARDINAL ) for damage arising from the loss of possession and use of the premises in the light of ORG judgment of DATE finding a violation of LAW No . CARDINAL to the Convention . On DATE , the court having established that such a decision had not been taken by any other court and that the domestic courts had particularly stated that such a measure had to be sought before the ordinary domestic civil courts , took cognisance of the case and ordered the submission of the relevant evidence .","The proceedings are still pending .","Section CARDINAL ( CARDINAL ) of ORG ) Ordinance , LAW of LAW , reads as follows :","\u201c The compensation due for the acquisition by absolute purchase of any land , and the sum to be deposited in accordance with this article shall be :","...","( c ) in the case of conversion from public tenure into absolute purchase a sum arrived at by the capitalisation at the rate of CARDINAL per centum of the DATE recognition rent due under the provisions of this GPE . \u201d","Section CARDINAL of the LAW relates to the assessment of compensation by ORG . LAW , reads as follows :","\u201c The compensation in respect of the acquisition of any land held by way of public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles ( CARDINAL ) to ( CARDINAL ) , inclusive , of this article , increased ( a ) by DATE ( PERCENT ) in the case of an old urban tenement and ( b ) by DATE ( PERCENT ) in the case of agricultural land . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["13"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108881","languageisocode":"ENG","respondent":"UKR","branch":"COMMITTEE","date":2012,"docname":"CASE OF MURDUGOVA v. UKRAINE","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)","judges":"Andr\u00e9 Potocki;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and lived in GPE , GPE , and in GPE , GPE .","DATE the applicant was married to PERSON was born during the marriage . The applicant and PERSON divorced in DATE . On DATE they remarried .","On DATE the applicant died and PERSON inherited her rights and obligations .","On DATE PERSON died and PERSON inherited his rights and obligations .","On DATE M. instituted divorce proceedings in the Moskovskiy District Court of GPE against the applicant .","On DATE amended his claims and requested a declaration that the marriage of DATE was void . Subsequently he modified and withdrew his claims on several occasions .","On DATE the court declared the marriage void . The applicant appealed .","On DATE ORG ( since DATE ORG ) quashed this judgment on the ground that the lower court had failed to examine the initial claims of LAW and to establish crucial facts , and remitted the case for fresh consideration .","On DATE the applicant submitted a counterclaim , seeking a divorce .","On DATE the ORG granted the divorce petition in respect of PERSON and the applicant . PERSON appealed .","On DATE ORG quashed this judgment on the lower court \u2019s failure to assess properly the evidence and remitted the case for fresh consideration .","On several occasions ORG transferred the case from CARDINAL trial court to another for further examination : in DATE to LOC of GPE ; in DATE to ORG of GPE ; and , eventually , on DATE to ORG of Kyiv ( in DATE this court was reorganised into the NORP and ORG of GPE ) .","On DATE the court found for PERSON and declared the marriage with the applicant void . The applicant appealed .","On DATE ORG quashed this judgment and remitted the case for fresh consideration to ORG of Kyiv . It noted , inter alia , that although the trial court had examined the case in the applicant \u2019s absence , it had failed to take into account her written pleadings , which were important for a fair examination . PERSON appealed in cassation against this decision but on DATE ORG dismissed his appeal .","On DATE the NORP ORG resumed the proceedings .","On DATE the court granted divorce to PERSON and the applicant . The hearing was held in PERSON \u2019s absence . PERSON appealed .","On DATE ORG quashed the judgment on the ground that the trial court had failed to examine whether the absence of PERSON was for good reasons or not and remitted the case for fresh consideration .","On DATE the ORG resumed the proceedings .","On DATE the court rejected PERSON \u2019s claim to have the marriage declared void and dismissed the applicant \u2019s claim because she had failed to attend the hearing .","On DATE and CARDINAL DATE respectively , ORG and ORG , acting as a court of cassation , dismissed PERSON \u2019s appeals .","A substantial number of the approximately seventy hearings in this set of proceedings were adjourned following the parties\u2019 requests , referring to their poor state of health or their failure to appear before the court . In her requests to adjourn the hearings the applicant , who , it appears from the available documents , was represented , requested the trial courts either not to hold hearings in her absence or to stay the proceedings till her recovery . The trial courts stayed the proceedings several times pending the parties\u2019 recovery . The courts further warned the parties that they would examine the case in the respective party \u2019s absence ; on CARDINAL occasion the court fined the applicant for non - attendance , but this decision was later quashed upon the applicant \u2019s appeal .","According to the applicant , she did not appeal against the judgment of CARDINAL DATE but in DATE she instituted new and separate divorce proceedings in the GPE ORG of GPE . On DATE the court divorced the applicant and M.","In DATE the applicant \u2019s family was granted tenancy of a publicly owned CARDINAL - roomed apartment . On CARDINAL DATE PERSON , with the applicant \u2019s consent , bought the apartment from the local municipal authority .","On DATE the applicant instituted proceedings in the Moskovskiy District Court of GPE against PERSON , seeking to declare the above sale contract void .","On DATE the court attached the apartment in question .","In DATE the applicant amended her claims , claiming ownership of CARDINAL of the apartment .","In DATE M. forcibly evicted the applicant from the apartment . The applicant moved to GPE , GPE , and resided there until her death .","On DATE ORG stayed the proceedings pending determination of the divorce proceedings .","In the period DATE the case was transferred to the NORP and GPE ORG of GPE , following the relevant decisions by ORG .","On DATE the Kharkivskiy ORG of GPE , having taken over the case , decided to stay the proceedings pending determination of the divorce proceedings .","On DATE the ORG of Kyiv ( before DATE the Moskovskiy District Court of GPE ) lifted the attachment order on this apartment as \u201c the main dispute had been resolved \u201d . According to the applicant , neither she nor her representative were present at this hearing . She also contended that Judge U. , the president of the court , who rendered this ruling , had intervened unlawfully in the proceedings as at that moment they were pending before ORG of GPE ( formerly ORG of Kyiv ) . The applicant further pointed out that in the ruling of CARDINAL DATE Judge PERSON had referred to a judgment which did not exist .","On DATE M. made a gift of the apartment to ORG , a third person . On DATE the latter sold the apartment to GPE The applicant alleged that she only became aware of the ruling of CARDINAL DATE in DATE , when the apartment had been already sold .","On DATE ORG ( formerly ORG of Kyiv , see paragraph CARDINAL in fine ) made an attachment order in respect of the apartment in question . On DATE ORG amended the order so that it applied to CARDINAL of the apartment only . According to the applicant , neither she nor her representative was summoned to the last - mentioned hearing . On DATE ORG upheld the ruling of DATE .","On DATE the court rejected the applicant \u2019s request to renew her the time - limit for appeal against the decision of CARDINAL DATE . There is no evidence that the decision of CARDINAL DATE has been ever sent to the applicant . According to the applicant , she learned about it on DATE at the latest from the letter of ORG . There is no evidence that the applicant has ever tried to obtain a copy of the decision of CARDINAL DATE and to appeal against it .","On DATE the ORG inquired of ORG as to the outcome of the divorce proceedings .","On DATE ORG resumed the proceedings .","On DATE the applicant submitted an additional claim to declare the gift contract of DATE and the sale contract of CARDINAL DATE ( see paragraph CARDINAL above ) void .","On DATE the case was transferred for examination to ORG . On DATE ORG of Appeal quashed this decision on an appeal by the applicant and remitted the case back to ORG .","On DATE , both parties , the applicant and PERSON , having died , ORG stayed the proceedings until the identity of the parties\u2019 heirs had been determined .","On DATE PERSON joined the proceedings as the sole heir to both parties . She also modified the claims , seeking to have the contracts of DATE and DATE declared void and to have the court recognise that she owned the apartment outright . In this regard she indicated GPE and GPE as defendants .","On DATE the proceedings were resumed .","On DATE ORG found for PERSON . On DATE ORG upheld this decision . On DATE ORG of GPE quashed these decisions and remitted the case for a fresh consideration to the first instance court . The proceedings are apparently still pending ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58129","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF HIGGINS AND OTHERS v. FRANCE","importance":3,"conclusion":"Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"","text":["The case concerns a dispute over the succession to the estates of PERSON , who died on DATE , and her husband PERSON , who died on CARDINAL DATE . The applicants are entitled to a share in the estates of the deceased either by will or on intestacy and are all NORP citizens . Their names are :","In this complex succession dispute the applicants were parties to CARDINAL sets of proceedings against a number of other people , including a Mr L. , a notary in GPE ( NORP GPE ) . Those proceedings were :","( ii ) a third - party application to reopen proceedings in which ORG had on DATE refused an application to set aside PERSON will of DATE ;","( iii ) an application to have set aside as fraudulent a transfer of a property development known as the \u201c LOC \u201d to ORG ( \u201c ORG \u201d ) and for payment of rent and other income derived from that property since DATE .","In the last set of proceedings \u2013 the only CARDINAL in issue \u2013 ORG of First Instance found in favour of the applicants in a judgment of DATE . It ordered that the rent should be paid to a receiver and held that ORG had been formed for an illegal purpose . It held that the ORG and the other applicants were in principle entitled to have the transfer set aside but deferred judgment on that point until ORG had given its decision in the action for payment of a legacy . On DATE ORG appealed against the judgment to ORG ( see paragraph CARDINAL below ) .","While that appeal was pending , the applicants applied for transfer of the case to another court on grounds of bias .","In an application ( no . T-CARDINAL - CARDINAL.CARDINAL ) registered on DATE , the applicants asked ORG ( Second Civil Division ) to order transfer of the proceedings pending against ORG to a court other than ORG . They also requested ORG to defer judgment until ORG had delivered its decision ( see paragraph CARDINAL below ) .","Before making that application , the applicants had , on DATE , made an initial application ( no . N-CARDINAL - CARDINAL.CARDINAL ) to the same division of ORG for the proceedings in the action for payment of a legacy and those relating to the third - party application , both of which were pending in ORG , to be transferred to another court on grounds of bias ( see paragraph CARDINAL above ) .","NORP The application of DATE read as follows :","\u201c There are currently pending before ORG","( i ) NORP proceedings for payment of ... legacies \u2026 ; and","( ii ) a third - party application to reopen proceedings \u2026","In application no . CARDINAL - CARDINAL.CARDINAL registered on CARDINAL DATE at the registry of ORG the applicants requested transfer of those CARDINAL sets of proceedings from ORG to another court .","\u2026","\u2026 The ORG and the other applicants brought an action ... against ORG in which they sought a declaration that the transfer of the property concerned to the company ... was fraudulent \u2026","\u2026","\u2026 the case is to be considered on the merits by ORG ; the applicants request its transfer to another court .","The applicants expressly refer to the grounds on which they relied in application no . CARDINAL - CARDINAL.CARDINAL . A transfer is justified for the same reasons in the proceedings against ORG \u2026 \u201d","As regards the grounds for suspecting bias , the applicants made , inter alia , the following submissions in their application of DATE :","\u201c ORG comprises CARDINAL members : the President , CARDINAL other judges , a ORG and an ORG .","The applicants are entitled to question whether objectively the court that is to rule in their various proceedings against the ORG , PERSON and ORG \u2013 a mere emanation of the Bambridges \u2013 is impartial .","Firstly , PERSON has held a prominent position in PERSON and enjoyed privileged , friendly relations with a number of the judicial officers of ORG .","Several judicial officers , including some from ORG , have enjoyed special relations with the parties for a very long time , Mr J. and PERSON were close friends of PERSON ( at the latter \u2019s funeral his widow was supported by PERSON A. ) .","\u2026","It has to be noted , furthermore , that the atmosphere of tranquillity in which judicial business ought necessarily to be conducted has in fact been seriously disturbed by the sudden turn of events in the case and its repercussions . In particular , the ORG and the other applicants , aware that their share in the estate was about to be squandered , applied for DATE and in several cases obtained from the court of first instance \u2013 orders for some of the assets of the estate to be delivered to a receiver . They also secured a like measure over PERSON assets \u2026 He reacted very violently when the measure was ordered , publicly declaring it to be \u2018 an act of judicial ORG . The local judicial officers became divided and ORG at ORG reflected the disarray in an application to have the case transferred that he made to ORG on DATE .","In other words some judicial officers in ORG , divided among themselves , whose actions have been publicly called into question and who have taken up a position on events closely connected with the proceedings , which are still pending , feel that , over and above their goodwill their impartiality may be objectively called into question and that the decisions they render may legitimately fall under suspicion \u2026","...","Taken as a whole , these factors cast unacceptable doubt on the impartiality of the judicial officers of ORG and render it \u2018 ORG or suspect .","ORG will prefer to avoid any ambiguity or suspicion and to order that the case be removed from ORG . \u201d","On DATE ORG ( Second Civil Division ) held :","\u201c As to the applications dated DATE and DATE \u2026 for an order for transfer on grounds of bias to a court other than ORG of the proceedings between them and ( i ) the PERSON and another , ( ii ) PERSON and ( iii ) ORG property company ;","The Court \u2026","\u2026","Having considered the applications and the documents lodged with ORG registry on DATE and DATE on behalf of the ORG and the other applicants ;","\u2026","In their applications the ORG and the other applicants seek transfer to another court of appeal on grounds of bias of the cases pending before ORG to which they are parties , namely :","( CARDINAL ) NORP proceedings for payment of a legacy following an appeal against a judgment of ORG dated DATE ; and","( CARDINAL ) a third - party application to reopen proceedings with a view to securing an order setting aside a judgment of DATE of ORG ; those applications are connected and must be joined .","While it has not been shown that the members of ORG have taken up a position on the outcome of the proceedings before them , it is apparent from the alleged facts and the documents produced that the ORG and the other applicants may entertain doubts as to the impartiality of the court that is to try their cases ; the cases should therefore be transferred to another court , whose decision will command respect and have the authority that court decisions must possess .","FOR THESE REASONS ,","JOINS applications nos . N-CARDINAL - CARDINAL.CARDINAL and T-CARDINAL - CARDINAL.CARDINAL ;","DECLARES the applications admissible ; and","ORDERS transfer of the following cases to ORG : ( CARDINAL ) proceedings for the payment of a legacy \u2026 ; ( CARDINAL ) a third - party application for proceedings to be reopened \u2026 ; the applications are connected and must be joined \u2026 \u201d","NORP In CARDINAL judgments dated DATE ORG ( ORG ) declared null and void the CARDINAL judgments that ORG had delivered meanwhile , on DATE , in the proceedings for payment of a legacy and on the application to reopen proceedings . ORG CARDINAL judgments were similarly worded . The CARDINAL on the appeal against ORG judgment in the action for payment of a legacy indicated :","\u201c In the impugned decision of DATE ORG gave judgment in an action for payment of a legacy , after holding that it was unnecessary to defer judgment until ORG had ruled on an application for the case to be transferred on grounds of bias that had been lodged on DATE ; in a judgment of CARDINAL DATE ORG granted that application and ordered that the case be transferred to ORG ; it follows , since that transfer decision must be executed , that ORG decision in the impugned judgment is null and void ; it is therefore unnecessary to rule on the appeal against that judgment .","FOR THESE REASONS","HOLDS that it is unnecessary to rule on the appeal . \u201d","On DATE , being of the view that ORG had failed to mention the proceedings against ORG in its judgment of CARDINAL DATE by mistake , the applicants made an application for rectification of a clerical error to ORG of that court .","In a judgment of CARDINAL DATE ORG dismissed that application in the following terms :","\u201c In a judgment of CARDINAL DATE ORG of ORG transferred to ORG , on grounds of bias , CARDINAL sets of proceedings pending in ORG between , on the one hand , the ORG and the other applicants and , on the other hand , PERSON ;","On DATE the ORG and the other applicants made an application to ORG for rectification of the judgment of CARDINAL DATE ; in support of their application they argued that that decision contained a clerical error , ORG having ordered the joinder of CARDINAL applications before it , registered under nos . N-CARDINAL - CARDINAL.CARDINAL and T-CARDINAL - CARDINAL.CARDINAL , but having ordered transfer of only the first CARDINAL cases , to which the first application related ;","But on the pretext of rectification , the purpose of the application is to secure a variation of the judgment \u2019s clear provisions .","For these reasons","Dismisses the application ; and","Holds that it is unnecessary to rectify the judgment of CARDINAL DATE . \u201d","Meanwhile , having held a hearing on DATE , ORG ruled on DATE that there were no grounds for deferring judgment pending a decision on the application lodged by the applicants on DATE for transfer of the case on grounds of bias and reversed the judgment of DATE in its entirety . Ruling afresh , it held that it had not been established that the instrument creating ORG was a nullity , and it consequently dismissed the application of the ORG and the other applicants for an order setting aside the transfer to ORG . As to its refusal to defer judgment , it gave the following reasons :","\u201c The ORG and the other applicants referred to a challenge but have not shown that one was made and do not even identify the judicial officer or officers concerned ; accordingly , the application can not be granted on that count .","On the other hand , they have shown that on DATE they filed an application for transfer on grounds of bias with ORG registry .","By Article CARDINAL of the local Code of Civil Procedure , such applications do not in themselves have suspensive effect and it is for the court concerned to assess whether judgment should be deferred .","Securing the appointment of a receiver in order to paralyse the usual appeals process is contrary to the rights of the defence and is therefore acceptable only in exceptional circumstances .","In their application for a transfer , the ORG and the other applicants confined themselves to making abstract and vague complaints and only referred in more concrete terms to CARDINAL judicial officers , who are not ( in the case of PERSON ) or are no longer ( in the case of PERSON and PERSON ) members of ORG ; in practice , execution of the impugned decision is to be levied only on rent from a plot of land , not on the title to that land ; in the circumstances , the danger is not such as to make it necessary to defer judgment \u2026 \u201d","Without waiting for the application for transfer on grounds of bias to be decided ( see paragraphs CARDINAL above ) , the applicants appealed to ORG and lodged full pleadings on DATE . The case was allocated to ORG .","On DATE \u2013 although the time - limit for filing pleadings had expired on DATE ( see paragraph CARDINAL below ) \u2013 the applicants lodged observations and submissions to the effect that it was unnecessary to decide the appeal , and produced in support the judgment delivered on DATE by ORG of ORG and the application for rectification of a clerical error . Pointing out that the latter application was pending before ORG , they argued before ORG :","\u201c If that application [ for rectification of a clerical error ] is allowed , the result will be that ORG will be deemed to have granted on DATE the applicant \u2019s request for transfer of the case on grounds of bias .","In those circumstances , the judgment delivered in this case by ORG on DATE will have to be considered null and void . That judgment was delivered after the applicants had lodged the application for transfer on grounds of bias and before that application was heard by ORG . The judgment of ORG can only have a declaratory effect and contain a finding that it was impossible for ORG to hear the case . Accordingly , the judgment now impugned must be considered as having been deprived of any legal basis as a result of the judgment of CARDINAL DATE ( once rectified by ORG ) , whereby removal of the case from ORG was ordered . ORG will , in consequence , have to hold that the impugned judgment is null and void . \u201d","On DATE the applicants\u2019 lawyer sent a letter to the advocate - general dealing with the case to remind him of the history of the proceedings in the First and ORG of ORG . He drew the advocate - general \u2019s attention to the judgment of DATE and the application for rectification of a clerical error pending in ORG of ORG and suggested he contact the advocates - general dealing with the other cases .","ORG held a hearing on DATE . In a judgment of CARDINAL DATE , after ruling on the CARDINAL grounds of appeal alleging that ORG had not given sufficient reasons , it dismissed the substantive appeal against the judgment of DATE without referring to the judgment of CARDINAL DATE .","CARDINAL provisions of LAW are relevant :","\u201c Appellants shall be barred from proceeding with their appeal unless , within DATE of giving notice of appeal on points of law , they file at ORG registry and serve on the respondent a pleading setting out the legal grounds on which they rely in their appeal against the impugned decision . \u201d","\u201c The time - limits laid down in ORG CARDINAL and CARDINAL shall be extended :","( a ) by DATE where the appellant lives ... in an overseas territory ... \u201d","Article CARDINAL of LAW provides :","\u201c A judge may be challenged on grounds of bias only for the reasons prescribed by law .","... Save for special provisions that shall apply in certain courts , a judge may be challenged if :","( CARDINAL ) he or his spouse has a personal interest in the dispute ;","NORP he or his spouse is a creditor , debtor , heir presumptive or donee of one of the parties ;","( CARDINAL ) he or his spouse is related by blood or by marriage to CARDINAL of the parties or his spouse up to and including the fourth degree ;","( CARDINAL ) there is or has been litigation between him or his spouse and CARDINAL of the parties or his spouse ;","( CARDINAL ) he has previously dealt with the case as a judge or arbitrator or has advised CARDINAL of the parties ;","( CARDINAL ) he or his spouse is responsible for administering the assets of CARDINAL of the parties ;","( CARDINAL ) he or his spouse is the employer or employee of CARDINAL of the parties or his spouse ;","( CARDINAL) it is common knowledge that there is a friendship or hostility between him and one of the parties ... \u201d","The following rules in LAW apply to transfers :","\u201c An application for a case to be transferred on grounds of bias shall be subject to the same conditions as regards admissibility and form as a challenge of a judge for bias . \u201d","\u201c Where an application is justified , the case shall be transferred either to a differently composed bench of the same court or to another court of the same type . The decision shall be binding both on the parties and on the court to which the case is transferred . No appeal shall lie . \u201d","\u201c Proceedings in the court from which an applicant seeks to have a case transferred shall not be stayed . However , the president of the court to which the application for the case to be transferred is made may , depending on the circumstances , direct the court suspected of bias to stay the proceedings pending a decision on the application . \u201d","Article CARDINAL of LAW provides :","\u201c Clerical errors and omissions in a judgment , including a final judgment , may in all cases be rectified by the court that delivered it ... on the basis of the evidence in the file or , failing that , of what reason dictates .","Proceedings for rectification may be brought by means of an application by CARDINAL of the parties or by means of a joint application ; the court may also act of its own motion .","The court shall decide the application after hearing the parties or after having given them an opportunity to appear .","The order for rectification of the error or omission shall be noted on the original and execution copies of the judgment . It shall be served in the same way as the judgment .","Where a rectified decision has become final , the order for rectification may be challenged only by an appeal on points of law to ORG . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91995","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF KRAVCHENKO v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant deposited MONEY ( USD ) for DATE with a private bank \u201c ORG - AGRO \u201d ( hereafter DATE \u201c the Bank \u201d ) . Following the ORG \u2019s refusal to return the deposit , the applicant sued ORG deposit , interest and compensation for non - pecuniary damage . According to the Government , the ORG \u2019s refusal to return the deposit was caused by a major financial crisis which had occurred in GPE in DATE and which had led to the ORG \u2019s inability to return money to its CARDINAL creditors .","In DATE ORG adopted a programme aimed at the protection of deposits made by private individuals with private banks . In line with measures adopted , the ORG signed an agreement with ORG . Under the terms of the agreement , the ORG transferred its liabilities to ORG which , in its turn , undertook to repay deposits made in GPE dollars at the exchange rate of MONEY for MONEY . On DATE the ORG , through a division of ORG , paid the applicant MONEY ( RUB ) .","On DATE the ORG of GPE found that the applicant had not consented to the liability transfer . However , taking into account that he had already been repaid a part of the deposit , ORG ordered that the ORG should repay the applicant PERSON and that it should also pay him DATE interest starting from the date of the pronouncement of the judgment . ORG dismissed the claim for compensation for non - pecuniary damage . The judgment was not appealed against and became final on DATE . DATE the GPE bailiffs\u2019 office instituted enforcement proceedings .","On an unspecified date the ORG of ORG , acting on an application for a supervisory review , quashed the judgment of DATE and sent the case for a fresh examination .","On DATE , following the re - examination of the applicant \u2019s action , ORG awarded him ORG CARDINAL,CARDINAL.CARDINAL in main debt , interest thereon and ORG in compensation for damage . That judgment was not appealed against and became final .","By DATE over CARDINAL enforcement claims were pending against the ORG , with an additional CARDINAL claims added DATE .","On DATE and DATE ORG declared a moratorium until DATE on the execution of all creditors\u2019 demands against the ORG . On DATE the management of the ORG was taken over temporarily by ORG ( hereafter DATE \u201c the ARKO \u201d ) , set up by the ORG in accordance with the Law on Restructuring of ORG ( hereafter - \u201c the Law \u201d ) . On DATE , in accordance with the PERSON , a moratorium was set for enforcement of all PERSON demands against ORG . This period was prolonged by the ARKO on DATE for DATE , until DATE .","On DATE ORG had approved the text of a tripartite friendly settlement involving ORG , the ORG and the ARKO . The text of the friendly settlement was adopted at the general meeting of ORG on DATE by a majority of votes . The friendly settlement substantially limited the ORG \u2019s liability to its creditors .","On DATE ORG found unconstitutional the legislative provision that allowed the ARKO unilaterally to extend the moratorium for DATE , and ruled that such decisions should be subject to judicial control .","DATE ORG of GPE ordered that the bailiffs should discontinue the consolidated enforcement proceedings against the ORG in respect of liabilities which had arisen before DATE .","On DATE the GPE bailiffs\u2019 office discontinued the consolidated enforcement proceeding against the ORG and returned writs of execution to the courts which had issued them . On DATE the bailiffs informed the applicant that the enforcement proceedings against the ORG had been discontinued .","The applicant asked the ARKO to confirm that he had been recognised as a creditor of the ORG and to inform him about future meetings of the ORG \u2019s creditors . On DATE the ARKO notified the applicant that he had not been registered as a creditor of the ORG . The ORG requested the applicant to send the documents showing the ORG \u2019s liability to him . The applicant fulfilled the ARKO \u2019s request .","On an unspecified date the applicant sued the ORG and ORG for damages . He claimed that the ARKO had not recognised him as a creditor of the ORG , that he had not participated in the friendly - settlement negotiations and that he had not been able to recover his money from the ORG . The applicant insisted that the respondents should repay him the ORG \u2019s debt .","On DATE ORG held that ORG and ARKO were responsible for the applicant \u2019s inability to obtain payment of the judgment debt and that the refusal to recognise the applicant as a ORG \u2019s creditor was unlawful . ORG ordered that the ARKO should repay the applicant PERSON of the ORG \u2019s debt .","On DATE the ARKO informed the applicant that he had been registered as the creditor of the ORG and the terms of the friendly settlement of DATE were applicable to him although he had not been able to negotiate them . The applicant was also informed that according to the terms of the friendly settlement he would not be paid the judgment debt .","On DATE ORG upheld the judgment of DATE . ORG again confirmed that the terms of the friendly settlement could not be applied to the applicant and the fact that the draft of the settlement had been published in the press did not imply that the applicant had agreed to the terms of that document .","According to the ORG , the applicant applied for a supervisory review of the judgments of DATE and DATE . It appears from the case file that ORG lodged an application for a supervisory review , arguing that the judgment of DATE , upheld on appeal on DATE , was erroneous in that the applicant \u2019s claims had been accepted . The prosecutor submitted that the terms of the friendly settlement should have been applied to the applicant \u2019s claims against the ORG and thus his action against the ORG should have been dismissed .","On DATE the Presidium of ORG , by way of supervisory - review proceedings , quashed the judgments of DATE and DATE and remitted the case for a fresh examination . The ORG noted that the District and Regional courts erred in assessing the facts of the case and that the terms of the friendly settlement should be applicable to the applicant because the information about the general assembly of the ORG \u2019s creditors and the draft of the friendly settlement had been published in the press .","On DATE the ORG made a new judgment in the applicant \u2019s favour and awarded him USD FAC , relying on the same line of arguments as in its previous judgment of CARDINAL DATE and citing the case - law of ORG . That judgment was also quashed on appeal by ORG . The case was again sent for re - examination on CARDINAL DATE .","On DATE the ORG of GPE again issued the judgment in the applicant \u2019s favour , although reducing the amount of the award to USD CARDINAL.CARDINAL,CARDINAL . The judgment was quashed by ORG and the proceedings were discontinued because the ARKO had ceased to exist as a legal entity ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75139","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"INCEOGLU v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON , Mr LOC and Mr PERSON , lawyers practising in GPE .","The facts of the cases , as submitted by the applicants , may be summarised as follows .","Until DATE the applicant lived in the \u00c7alba\u015f\u0131 village in the district of GPE in GPE , where he owns property . It is to be noted that other persons with the family name \u201c PERSON \u201d appear to be the owners of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated \u00c7alba\u015f\u0131 on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On an unspecified date the applicant filed a petition with the District Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of ORG in GPE sent the following reply to the applicant :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project . \u201d","Until DATE the applicant lived in the Tepsili village in the district of GPE in GPE , where he owns property . It is to be noted that another person , ORG , appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated Tepsili on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On DATE the applicant filed a petition with the District Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of ORG in GPE sent the following reply to the applicant :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project . \u201d","Until DATE the applicants lived in PERSON , a hamlet of the GPE village in the district of GPE in GPE , where they own property . It is to be noted that PERSON appears to be the owner of the property in question on the documents submitted to the ORG by GPE .","In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to GPE where they currently live .","On an unspecified date PERSON and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .","On an unspecified date ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .","On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .","On DATE the applicants filed petitions with the Governor \u2019s office in GPE and the GPE office in GPE requesting permission to return to their village .","On DATE ORG of ORG in GPE sent the following reply to the applicants :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project . \u201d","Until DATE the applicants lived in the LOC village in the district of GPE in GPE , where PERSON and PERSON own property . It is to be noted that PERSON submitted a certificate , signed and approved by the headman ( muhtar ) of his village , to the ORG attesting his ownership of the property in GPE .","In DATE security forces forcibly evacuated GPE on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to PERSON village , in GPE district where they currently live .","On an unspecified date PERSON filed a petition with the GPE office in GPE requesting an alternative residence and compensation for the damages he had suffered .","On DATE the GPE office in GPE sent a letter to the applicant to inform him about the food and money relief that the GPE office in GPE serves and further informed him that there was no legal ground for his alternative residence request .","On DATE PERSON filed petitions with the Prime Minister \u2019s office and ORG ve PERSON ) requesting a loan to reconstruct his house .","On DATE ORG sent his petition to ORG ( PERSON ) stating that his request was not within the scope of the PERSON no.CARDINAL .","On DATE the Prime Minister \u2019s office sent his petition to ORG .","On DATE ORG sent his petition to ORG .","On DATE ORG sent the following reply to him :","\u201c Your request of housing aid is not within the scope of the PERSON no . CARDINAL . Therefore no process exists on your request . \u201d","On an unspecified date PERSON filed a petition with the Prime Minister \u2019s office requesting permission to return to his village .","On DATE the Prime Minister \u2019s office sent the petition to Governor \u2019s office in GPE for examination . He received no response .","On DATE PERSON filed a petition with the GPE office in GPE requesting to be provided with government aid and permission to return to his village .","On an unspecified date PERSON filed a petition with the Prime Minister \u2019s office requesting permission to return to his village .","On DATE the Prime Minister \u2019s office sent the petition to ORG .","On DATE the District Governor \u2019s office in GPE sent the following reply to PERSON :","\u201c ... Due to the security reasons in the region , no one is curently residing in the GPE .","No fund is allocated for the villagers who had to leave their villages . Therefore your request for government aid can not be fulfilled .","On DATE PERSON filed a petition with the Prime Minister \u2019s office requesting to be provided with government aid permission to return his village .","On DATE the Prime Minister \u2019s office sent the petition to ORG .","On unspecified dates the applicants filed petitions with the District Governor \u2019s office in GPE requesting permission to return to their villages .","On DATE the District Governor \u2019s office in GPE sent the following reply to the applicants :","\u201c The Project \u2018 Return to the Village and Rehabilitation in ORG and LOC - eastern ORG is developed by the LOC - eastern ORG ( GAP B\u00f6lge GPE PERSON ) . It aims to provide the re - settlement of any inhabitants who unwillingly left their land due to various reasons , particularly terrorist incidents and who now intend to return to secure collective settlement units , since the number of the terrorist incidents have relatively decreased in the region . The ORG also aims to create sustainable living standards in the re - settlement areas .","In this context , your petition has been taken into consideration and your request will be responded when it is possible to return to the villages . \u201d","Until DATE the applicant lived in the Karata\u015f village in the district of GPE in GPE , where he owns property . It is to be noted that the applicant \u2019s father appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On DATE the applicant filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village . He received no response to his petition within the CARDINAL-day period prescribed by Law no . CARDINAL .","Until DATE the applicant lived in the Karata\u015f village in the district of GPE in GPE , where he owns property . It is to be noted that his father , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On an unspecified date ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .","On DATE ORG decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified .","On DATE the applicant filed petitions with the Governor \u2019s office in GPE and GPE office in GPE requesting permission to return to his village .","On DATE ORG of the GPE office in GPE sent the following reply to the applicant :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicant lived in the NORP village in the district of GPE in GPE , where he owns property . It is to be noted that his uncle , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On DATE the applicant filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c ... You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicants lived in GPE in the district of GPE in GPE . It is to be noted that PERSON and other persons with the family name \u201c GPE \u201d appear to be the owners of the property in question on the documents submitted to the ORG by PERSON and PERSON , PERSON and PERSON respectively .","In DATE security forces forcibly evacuated \u00c7alba\u015f\u0131 on account of disturbances in the region . They also destroyed the applicants\u2019 property . PERSON , PERSON , PERSON , PERSON , PERSON and PERSON then moved to GPE . PERSON and PERSON moved to GPE village in ORG , where they currently live .","On DATE PERSON filed petitions with the Prime Minister \u2019s office , the Emergency Regional Governor and the Governor \u2019s office in NORP requesting permission to return to their villages . He received no response to his petitions within the CARDINAL-day period prescribed by PERSON no . CARDINAL .","On DATE PERSON filed petitions with the Prime Minister \u2019s office , ORG Governor and Governor \u2019s office in GPE . He received no response to his petitions within the CARDINAL-day period prescribed by Law no . CARDINAL .","On DATE PERSON , PERSON and PERSON filed petitions with the Prime Minister \u2019s office , ORG Governor and Governor \u2019s office in GPE . They received no response to their petitions within the CARDINAL-day period prescribed by Law no . CARDINAL .","On an unspecified date PERSON filed petitions with ORG , the Governor \u2019s office in GPE and the GPE office in GPE requesting permission to return to his village .","On DATE the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c ... You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On an unspecified date PERSON and PERSON filed petitions with the District Governor \u2019s office in GPE requesting permission to return to their village .","On DATE ORG of the GPE office in GPE sent the following reply to the applicants :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicants lived in PERSON , a hamlet of the GPE village in the district of GPE in GPE . It is to be noted the title deeds to the property that PERSON and PERSON used in PERSON bear the name of PERSON and the name of PERSON father . It is also to be noted that the title deeds to the property that PERSON , PERSON and PERSON used in ORG bear their ORG name .","In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to GPE where they currently live .","On an unspecified date PERSON and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .","On an unspecified date ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .","On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .","On an unspecified date , PERSON filed a petition with ORG requesting permission to return to his village .","On DATE ORG of Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c .... ORG hamlet , in GPE is not secure and economically suitable for residence .","You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On an unspecified date PERSON filed petitions with ORG , Governor \u2019s office in GPE , GPE office in GPE and ORG office in GPE .","On DATE ORG of the GPE office in GPE sent the following reply to PERSON :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On DATE PERSON filed petitions with the Governor \u2019s office in GPE , GPE office in GPE and ORG office in GPE requesting permission to return to his village . He received no response to his petitions which he had filed with the Governor \u2019s office in GPE and the GPE office in GPE within the CARDINAL-day period prescribed by PERSON no . CARDINAL .","On DATE ORG in GPE issued decisions to discontinue criminal proceedings ( PERSON karar\u0131- non - prosecution decision ) with regards the complaints lodged by PERSON and PERSON . He held that the petition in question should be examined by the administrative authorities .","On an unspecified date PERSON filed petitions with ORG and Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c .... ORG hamlet , in GPE is not secure and economically suitable for residence .","You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On an unspecified date , PERSON filed petitions with ORG and Governor \u2019s office in GPE requesting permission to return to his village .","On DATE he was told by a police officer that ORG hamlet , in GPE was not secure and economically suitable for residence , therefore he could return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","The police officer further stated that his petition would be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 .","The applicant submitted an official document to the ORG certifying the statement made by the police officer in question .","On an unspecified date PERSON filed petitions with ORG , ORG office in GPE , Governor \u2019s office in GPE and ORG office in GPE requesting permission to return to his village .","On DATE ORG office in GPE issued decisions on to discontinue criminal proceedings ( PERSON karar\u0131- non - prosecution decision ) in accordance with LAW holding that the petition in question should be examined by the public authorities .","On DATE ORG of the GPE office in GPE sent the following reply to the applicant :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On DATE ORG of the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c .... ORG hamlet , in GPE is not secure and economically suitable for residence .","You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicants lived in GPE in the district of GPE in GPE , where the applicants own property . It is to be noted the title deeds to the property that ORG , PERSON , GPE and PERSON , PERSON and PERSON , PERSON and ORG used in GPE bear their ORG name . Further , ORG and PERSON did not submit any certificate attesting their ownership of property in \u015eahverdi .","In DATE security forces forcibly evacuated \u015eahverdi on account of disturbances in the region . They also destroyed the applicants\u2019 property .","PERSON , ORG , GPE and PERSON and PERSON then moved to GPE , PERSON , Celal and PERSON and PERSON moved to GPE and PERSON , GPE , PERSON and GPE , ORG and ORG , PERSON , PERSON and ORG moved to villages in NORP .","On DATE Turabi , ORG , LOC and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .","On DATE GPE and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .","On unspecified dates PERSON , PERSON , Celal and PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and ORG lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .","On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .","On an unspecified date PERSON filed a petition with the Prime Minister \u2019s office requesting to be provided with government aid and permission to return to his village .","On DATE the Prime Minister \u2019s office sent the petition to the Governor \u2019s office in GPE .","On DATE ORG filed a further petition with the Prime Minister \u2019s office requesting permission to return to his village . On DATE he lodged a petition with ORG complaining about the burning down of their houses by security forces . ORG issued a decision to discontinue the criminal proceedings ( PERSON karar\u0131- non - prosecution decision ) .","On an unspecified date PERSON filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village .","On DATE the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c Your petition containing a request of permission to return to your village has been received by the Governor \u2019s office and will be considered under the \u2018 Return to Village and Rehabilitation Project\u2019 . \u201d","On DATE PERSON filed petitions with the Prime Minister \u2019s office , ORG , ORG office , the Governor \u2019s office in GPE and the GPE office in GPE requesting permission to return to his village .","On DATE he was summoned to the Struggle Against Terrorism Department of ORG and ORG , where he was informed about the NORP Governor \u2019s reply to his petition concerning a request of permission to return to his village .","The applicant and CARDINAL other witnesses drafted a note on this statement . This note is attached to the applicant \u2019s application to the ORG .","On DATE PERSON filed a petition with the FAC Governor \u2019s office in GPE requesting permission to return to his village . He received response to his petition within the CARDINAL-day period prescribed by PERSON no . CARDINAL .","On an unspecified date PERSON and PERSON filed petitions with ORG requesting permission to return to their village .","On DATE the Governor \u2019s office in GPE sent the following reply to them :","\u201c ... You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On DATE PERSON and PERSON and ORG filed petitions with the GPE office in GPE requesting permission to return to their villages .","On unspecified dates PERSON , PERSON , PERSON , GPE , PERSON , GPE and PERSON , PERSON and PERSON , PERSON , PERSON , ORG and PERSON filed petitions with the LOC office in GPE requesting permission to return to their villages .","On DATE and on DATE the GPE office in GPE and ORG of the GPE office in GPE sent the following reply to the applicants :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to Village and Rehabilitation Project\u2019 . \u201d","On DATE PERSON filed petitions with ORG and ORG office in GPE requesting permission to return to his village .","On DATE the District Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to Village and Rehabilitation Project\u2019 . \u201d","On DATE the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c ... You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .","Furthermore , your petition will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicants lived in the GPE village in the district of GPE in GPE , where they own property .","In DATE security forces forcibly evacuated GPE on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to GPE where they currently live .","On an unspecified date the applicants lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .","On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .","On DATE PERSON filed a petition with ORG requesting permission to return to his village .","On DATE ORG sent the following reply to him :","\u201c ... Governors\u2019 offices are working on the solutions to the problems you have mentioned in your petition . Therefore petitions containing requests of permission to return to village should be filed with the Governors\u2019 offices .","On an unspecified date PERSON filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of the Governor \u2019s office in GPE sent the following reply to him :","\u201c Your petition requesting permission to return to your village has been received by the Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On DATE the applicants filed petitions with the District Governor \u2019s office in GPE requesting permission to return to their village .","On DATE ORG of the GPE office in GPE sent the following reply to the applicants :","\u201c ... As a result of the work carried out by ORG Return to GPE has been attached to GPE , in GPE .","Implementation of the project has not started yet . Therefore , you can return and reside in ORG , ORG , ORG and ORG villages .","Until OctoberCARDINAL the applicants lived in the GPE village , in the GPE district in GPE . It is to be noted that PERSON appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated GPE on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to GPE where they currently live .","On an unspecified date the applicants lodged petitions with ORG office in GPE complaining about the burning down of their houses by the security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .","On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .","On DATE PERSON applied to ORG in GPE in order to have his damages determined .","On DATE ORG in GPE ordered an on - site visit to the property .","On DATE ORG in GPE sent a letter to ORG office in GPE informing about the on - site visit on CARDINAL NovemberCARDINAL and requesting information on safety measures for the on - site visit .","On DATE ORG in GPE sent the following reply to ORG :","\u201c Your request on experts for the on - site visit to the property can not be fulfilled due to security reasons . \u201d","On DATE ORG in GPE sent the following reply to ORG :","\u201c Your request on experts for the on - site visit can not be fulfilled . It is reported that no one currently live in the village . Therefore , no list of experts can be prepared . \u201d","On DATE ORG decided not to conduct an on - site visit due to the security reasons .","On DATE PERSON filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of the GPE office in GPE sent the following reply to him :","\u201c Your petition containing a request of permission to return to your village has been examined .","The struggle against terrorism in our region has been continuing intensively and positive result is being achieved .","Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor \u2019s office when it is possible to return to the villages . \u201d","On an unspecified date the applicants filed petitions with the District Governor \u2019s office in GPE requesting permission to return to their village .","On DATE ORG of the GPE office in GPE sent the following reply to the applicants :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted that the applicant did not submit any certificate attesting his ownership of property in Cevizlidere .","In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of his house by security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .","On DATE the office of ORG in GPE decided not to conduct an investigation into applicant \u2019s allegations as the perpetrators of the alleged acts could not be identified .","On DATE the applicant filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village .","On DATE the Governor \u2019s office in GPE sent the following reply to the applicant :","\u201c The South - eastern ORG ( GAP B\u00f6lge GPE PERSON ) is working on a project called \u2018 Return to the Village and Rehabilitation\u2019 . Only CARDINAL villages , GPE and ORG , from GPE are included in this project .","There is no other project concerning the other villages in GPE .","Petitions concerning the other villages , will be taken into consideration if such a project is adopted in the future . \u201d","On DATE the applicant filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village . He received no response to his petition within the CARDINAL-day period prescribed by PERSON no . CARDINAL .","Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted that another person her husband appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and her family then moved to GPE where they currently live .","On an unspecified date the applicant filed a petition with ORG of the GPE office in GPE requesting permission to return to her village .","On DATE ORG of the GPE office in GPE sent the following reply to the applicant :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted his father , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of his house by security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .","On DATE the office of ORG in GPE decided not to conduct an investigation into applicant \u2019s allegations as the perpetrators of the alleged acts could not be identified .","On DATE the applicant filed a petition with the Governor \u2019s office in GPE requesting permission to return to his village . He received no response to his petition within the CARDINAL-day period prescribed by Law no . CARDINAL .","Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted that another person , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and her family then moved to GPE where they currently live .","On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of her house by security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .","On DATE the office of ORG in GPE decided not to conduct an investigation into applicant \u2019s allegations as the perpetrators of the alleged acts could not be identified .","On DATE the applicant filed a petition with the Governor \u2019s office in GPE requesting permission to return to her village . She received no response to her petition within the CARDINAL-day period prescribed by Law no . CARDINAL .","Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE , where he owns property","In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On an unspecified date the applicant filed a petition with the District Governor \u2019s office in GPE requesting permission to return to his village","On DATE ORG of the GPE office in GPE sent the following reply to the applicant :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE , where he owns property . It is to be noted that another person , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .","In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to GPE where they currently live .","On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of his house by security forces .","On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .","On DATE the office of ORG in GPE decided not to conduct an investigation into applicant \u2019s allegations as the perpetrators of the alleged acts could not be identified .","On an unspecified date the applicant filed a petition with the District Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG of the GPE office in GPE sent the following reply to the applicant :","\u201c Your petition requesting permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","The official records indicated that the inhabitants of GPE , \u00c7alba\u015f\u0131 , Tepsili , GPE , PERSON , ORG , GPE and Cevizlidere had evacuated their village on account of intense terrorist activities in the region and threats issued by the ORG ( Workers\u2019 ORG ) terrorist organisation against the villagers . The security forces had not forced the applicants to leave their village .","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 . In this connection , in a letter of DATE the NORP Governor of GPE informed the applicants that they could return to their villages and resume their economic activities if they wished . He further noted that all villages were open for re - settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region .","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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77903","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2006,"docname":"SIRMIUM SPOL.S R.O. v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a commercial private limited liability company which was established in DATE . Its registered name is ORG , spol . s r.o . and it was represented before ORG by Ms GPE , a lawyer practising in GPE . The respondent Government were represented by PERSON Pol\u00e1\u010dkov\u00e1 , their Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE ORG ( \u201c ORG \u201d ) enacted a law ( PERSON no . CARDINAL\/CARDINAL Coll . \u2013 \u201c the LAW \u201d ) , by which it established ORG ( Fond det\u00ed a ml\u00e1de\u017ee \u2013 \u201c the Fund \u201d ) .","The ORG had its own legal personality and its principal task was to manage ORG property , as defined in the LAW , in order to promote children \u2019s and youth activities . In pursuit of that task , the ORG was authorised to engage in business activities .","On DATE ORG enacted an amendment ( Law no . CARDINAL\/CARDINAL Coll . ) to the LAW . It entered into force on DATE .","Under section CARDINAL ) of the amended Act , any lease of property administered by ORG for a period of DATE necessitated the approval of ORG ( GPE pre spr\u00e1vu a privatiz\u00e1ciu n\u00e1rodn\u00e9ho majetku \u2013 \u201c the Ministry \u201d ) . Pursuant to section CARDINAL ) of the amended Act , existing leases with a term of DATE would be terminated automatically ex lege DATE after the entry into force of the amendment , unless they were approved by ORG . Under section CARDINAL ) and ( CARDINAL ) , if a lease was terminated as described above , the tenant was to vacate the property on pain of a financial penalty equal to CARDINAL times the DATE rent for DATE of default . The ORG was to compensate the tenant for improvements and repairs on the leased property , provided that the ORG had approved them and had undertaken to reimburse their cost .","According to the explanatory note ( d\u00f4vodov\u00e1 spr\u00e1va ) on the amendment , the aim of the amendment was to lay down basic rules and minimum standards for effective management of the ORG \u2019s property in furtherance of the aims pursued by the Act . It was noted that the core of the ORG \u2019s economic activities consisted in leasing out the property it managed . However , the leases had frequently been concluded on inadequate terms and for an excessive period , aspects which had to be regularised .","On DATE a group of members of parliament challenged the amendment in ORG ( \u00dastavn\u00fd s\u00fad ) . They were later joined in their challenge by ORG .","On DATE ORG accepted the challenge for further examination .","On DATE ORG declared the whole of section CARDINALa and certain other sections of the LAW , as amended in DATE , contrary to several provisions of LAW . It held , inter alia , that these provisions infringed the principles of the division of ORG power , the prohibition of retroactivity , legality and access to a court . It was observed that they retroactively interfered with contractual arrangement of a private - law nature and bypassed the jurisdiction of the ordinary courts . LAW of the amended LAW remained unaffected .","On DATE the judgment ( n\u00e1lez ) of ORG was published in LAW . By operation of LAW , the unconstitutional provisions of the LAW thus lost their legal effect . As ORG took no steps to rectify them , DATE these provisions became void .","On DATE ORG passed a special law repealing the whole of the LAW and winding up the ORG . This law ( PERSON no . CARDINAL\/CARDINAL Coll . ) entered into force on DATE . As a consequence , the ORG entered into liquidation . The relevant procedure is still pending .","In DATE the applicant company concluded an agreement with the ORG for the lease of commercial LOC comprising a hotel for a term of DATE .","The applicant company took over the leased LOC , invested substantially in their renovation , and ran a hotel in them .","Following the entry into force of the DATE amendment to the LAW , the applicant company sought the ORG \u2019s approval of the lease . On DATE the ORG declined to approve the lease . Consequently , the lease expired on DATE .","The applicant company then made several requests for the ORG to take over the LOC . The ORG did so , but no earlier than DATE . The applicant company claims that until then it had to maintain the premises in order to prevent their deterioration and that it consequently incurred added expense and sustained material damage .","The applicant company also submits that , at that time , it did not know that the amendment had been challenged in ORG and that the challenge had been accepted for further examination .","The applicant company subsequently ceased its commercial operations .","Another company , E .- M. , leased commercial LOC from the ORG . The lease was for a fixed term of DATE .","On DATE , at the company \u2019s request , the Bratislava I ORG ( ORG s\u00fad ) indicated an interim measure ordering the ORG to allow the company to enjoy the LOC peacefully . At the same time , the company was invited to bring , within DATE , an action for a declaratory ruling that the lease agreement existed . The interim measure would stay in place until the final settlement of that action . In its rulings ORG observed that the DATE amendment to the LAW had been challenged in ORG and that the proceedings were still pending .","The E .- M. company brought the action as it had been invited to do and the proceedings are still pending .","Another company , ORG , leased commercial LOC from the ORG . The lease was likewise for a fixed term of DATE and the ORG declined to approve it .","The ORG brought an action for DATE to vacate the premises . On DATE the Bratislava I ORG dismissed the action . It observed that the DATE amendment was aimed at terminating leases such as the one concluded by ORG However , it had no actual effect on the lease in question because it had been automatically renewed by virtue of LAW , which provided for the renewal of leases where , as in the present case , the landlord failed to apply within DATE of the purported expiry of the lease for the premises to be vacated . ORG also took notice of ORG judgment of DATE and held that legal relationships could not be based on unconstitutional laws .","An entrepreneur , PERSON , leased commercial LOC from the ORG . The lease was likewise for a fixed term of DATE and ORG did not approve it . PERSON then vacated the LOC .","On DATE CARDINAL M. brought an action against the ORG , in the person of ORG . He made further submissions on DATE . Relying on ORG judgment of DATE , he argued that the termination of the lease in DATE had been unconstitutional and , as such , unlawful . He invoked LAW of DATE ( Law no . PERSON . ) and claimed damages . The action is still pending .","Another company , E .- B. , also had a long - term lease on LOC administered by a subsidiary of ORG . It declined to leave them , and in DATE the ORG brought an action for its eviction .","The action was dismissed by ORG on DATE and , on appeal , by ORG on DATE . The courts observed that the relevant provisions of the DATE amendment were unconstitutional and legally void . They could therefore not be used as a basis for a finding that the lease had expired and , consequently , for an order to vacate the LOC . With reference to section CARDINAL ) of LAW ( Law no . CARDINAL\/CARDINAL ORG . \u2013 see \u201c Relevant domestic law and practice \u201d below ) , the courts found that even if an eviction order had been made in the circumstances of the case , it would not have been enforceable .","LAW provides :","\u201c CARDINAL . The Constitutional Court shall decide on the conformity of","( a ) laws with the LAW , constitutional laws and international treaties to which ORG has expressed its assent and which have been ratified and promulgated in the manner laid down by law ,","...","NORP If ORG finds a lack of conformity between legal instruments referred to in paragraph CARDINAL , the relevant instruments , parts of them or certain of their provisions shall lose their effect . The bodies that issued these legal regulations shall be obliged to harmonise them with the LAW , with constitutional laws and with international treaties promulgated in the manner laid down by a law , and also , in the case of instruments referred to in paragraph CARDINAL ( b ) and ( c ) , with other laws , and in the case of instruments referred to in paragraph CARDINAL ( d ) , with government regulations and with generally binding legal regulations issued by ministries and other central ORG administrative bodies within DATE from the promulgation of the decision of ORG . If they fail to do so , these instruments , parts of them or their provisions shall lose their effect DATE after the promulgation of the decision . \u201d","Chapter ( hlava ) CARDINAL of Part ( \u010das\u0165 ) CARDINAL lays down rules concerning the review of conformity of legislation . It contains , inter alia , the following provisions :","\u201c ( CARDINAL ) The legal instrument , parts of it or some of its provisions shall lose their legal effect on the date on which the judgment of ORG is published in LAW .","...","( CARDINAL ) The fact that a legal instrument loses its legal effect or validity on the basis of the judgment of the Constitutional Court shall not entail the renewal of the validity of any legal instruments which it repealed . However , if the original legal regulations were merely changed or amended , they shall be valid in the form prior to the [ annulled ] amendment .","... \u201d","\u201c ( CARDINAL ) If a court has delivered a judgement in criminal proceedings on the basis of a legal instrument which later lost its effect pursuant to LAW , and the judgment has become final but has not been executed , the loss of the legal effect of the said instrument shall constitute a ground for reopening the case under the relevant provisions of LAW .","( CARDINAL ) Other final decisions which were given in civil or administrative proceedings on the basis of a legal instrument that has lost its legal effect either totally or in part shall remain unaffected . Obligations imposed as a result of such decisions can not , however be enforced . \u201d","LAW CARDINAL lays down rules concerning lease agreements . Section ( oddiel ) CARDINAL deals with termination of leases and contains , inter alia , the following provisions :","\u201c CARDINAL . A lease shall terminate on the expiry of the term for which it was concluded , unless the parties agree otherwise .","If the lessee uses the object of the lease after the termination of the lease and the lessor does not bring an action for restitution of the object within DATE , the lease agreement shall be renewed on the same terms as agreed originally ... \u201d","Article CARDINAL contains general rules concerning the types and the scope of actions ( n\u00e1vrh na za\u010datie konania ) in civil courts . It provides :","\u201c Civil actions may be aimed at obtaining rulings concerning , in particular :","( a ) personal status ... ,","( b ) fulfilment of an obligation which stems from law , contract or breach of law ;","( c ) determination of whether a particular legal relationship or a right exists or does not , provided that the determination is justified by a pressing legal interest . \u201d","The scope of the LAW is defined in section CARDINAL , which provides that the ORG is liable for damage caused by unlawful decisions by its bodies and agencies in civil proceedings , administrative proceedings , criminal proceedings ( with the exception of decisions concerning detention and penalties ) and proceedings before notaries .","Under section CARDINAL(CARDINAL ) , a claim for damages can be brought only if the impugned decision was quashed for being unlawful by the competent authority .","Section CARDINAL ) renders the ORG liable for damage caused by wrongful official conduct on the part of ORG bodies and authorities in carrying out their functions .","A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act by a public authority , quantifies its amount , and shows that there is a causal link between the damage and the wrongful act in question ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4832","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":1999,"docname":"BAKKER v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm","text":["The applicant is a NORP national , born in DATE , and resident in GPE . He is represented before ORG , a lawyer practising in GPE .","a. Particular circumstances of the present case","The applicant had , until DATE , a shop in GPE where he sold telecommunication equipment . In DATE and DATE , he traded in illegal cordless telephones , i.e. cordless telephones which were not allowed to be used in the GPE and other Member GPE of ORG given the frequencies used by these telephones .","The telephones were sold by a NORP Company M.D.B. to a NORP company ORG The latter company \u2019s director , PERSON , made invoices in respect of these telephones to a fictitious person at a fictitious address in GPE . In fact the telephones were not shipped to the ORG but were directly delivered by M.D.B. to the applicant , who subsequently sold them . After a certain time , the telephones were no longer sold via ORG , but through the GPE company of which PERSON was also director .","On DATE , ORG ( ORG en ORG ; \" FIOD \" ) conducted a search at the ORG company and , on DATE , went to the applicant \u2019s shop for an inspection of the shop \u2019s business administration . The applicant was absent DATE and could not be reached . With the consent of the shop \u2019s bookkeeper , the ORG took away documentation concerning part of the shop \u2019s business administration for verification purposes .","On DATE , pursuant to LAW ( PERSON inzake PERSON ) which authorises seizure of items for the purpose of investigation of fiscal criminal offences , the ORG seized the entire business records of the applicant \u2019s shop for DATE . On DATE , on his own initiative , the applicant went to the ORG in order to give a statement about his involvement in the cordless telephone trade . On DATE , he was taken into custody ( inverzekeringstelling ) and was subsequently held for questioning for DATE . He was released on DATE . In the course of this investigation the applicant was questioned for the last time on DATE .","On DATE the prosecution authorities issued a summons , ordering the applicant to appear on DATE before ORG ( Arrondissementsrechtbank ) of GPE on the charges of , inter alia , forgery , committed either alone or in association with others in respect of CARDINAL invoices for telephones or , alternatively , to have been an accessory to the commission of forgery in respect of these invoices . Further charges of forgery were brought against the applicant in relation to the importation by the ORG company for PERSON of a boat the latter had bought in GPE and the exportation of a boat by GPE to GPE .","Insofar as relevant , the charges contained in the summons read as follows :","< Translation >","\" that he , the suspect , at various points in time in or about the period DATE and DATE in GPE , in any case in the GPE , together and in association with others or CARDINAL other , at least alone , has falsely made or has falsified CARDINAL or more invoices , ( each ) being a document destined to serve as proof of a fact , with the aim to use this \/ these invoice(s ) or to have this \/ these invoice(s ) used by others as real and authentic , whereas such use could give rise to a disadvantage ,","the cited false making or falsifying of this \/ these invoice(s ) consisting in that he , the suspect , together and in association with his fellow perpetrators , at least alone , falsely and\/or contrary to the truth","has made or had made an invoice numbered ORG , dated CARDINAL and addressed to PERSON in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL ) ,","and\/or","has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) DATE telephones ( file Case CARDINAL , see DATE ) ,","and\/or","has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL\/D\/CARDINAL ) ;","Alternatively , in case the above under CARDINAL . would not or could not lead to a conviction :","Trading company ORG , at various points in time in or about the period DATE and DATE in GPE , in any case in the GPE , together and in association with others or CARDINAL other , at least alone , has falsely made or has falsified CARDINAL or more invoices , ( each ) being a document destined to serve as proof of a fact , with the aim to use this \/ these invoice(s ) or to have this \/ these invoice(s ) used by others as real and authentic , whereas such use could give rise ( each time ) to a disadvantage ,","the cited false making or falsifying of this \/ these invoice(s ) consisting in that above cited company together and in association with its fellow perpetrators , at least alone , falsely and\/or contrary to the truth","has made or had made an invoice numbered ORG , dated CARDINAL and addressed to PERSON in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL ) ,","and\/or","has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) DATE telephones ( file Case CARDINAL , see DATE ) ,","and\/or","has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL\/D\/CARDINAL ) ,","to which and\/or the commission of which offences he , the suspect , in or about the period DATE , in GPE , in any case in the GPE , has intentionally provided the opportunity , means and\/or information and\/or has intentionally provided assistance by dictating , or providing , the information contained in the above cited invoice(s ) to the cited company , or to CARDINAL or more of its staff members ; ... . \"","By judgment of DATE , following adversarial proceedings , ORG convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to CARDINAL months\u2019 imprisonment , suspended pending a probation period of DATE , and payment of a fine of ORG . CARDINAL from which fine ORG . CARDINAL was to be deducted for DATE the applicant had spent in pre - trial detention . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .","In its judgment of DATE , following adversarial proceedings , ORG quashed the judgment of DATE , convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to CARDINAL months\u2019 imprisonment , with deduction of the time spent in pre - trial detention , suspended pending a probation period of DATE , and payment of a fine of ORG . CARDINAL .","ORG rejected the applicant \u2019s argument that the summons should be declared null and void in that the charges brought against him , as stated in the summons , were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue . ORG held that the summons was in conformity with the relevant requirements under LAW ) and that , given the text and structure of the charges , there could be no misunderstanding that it concerned the commission of forgery in different factual forms . It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself . Moreover , during the applicant \u2019s trial , it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him .","As to the applicant \u2019s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under LAW , ORG held that the proceedings at issue had started on DATE when the applicant was arrested and detained on remand . It agreed that the applicant \u2019s case had not been dealt with within a reasonable time within the meaning of LAW of the convention . After having weighed the applicant \u2019s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution , the court decided that it would accept the applicant \u2019s prosecution but that it would take this finding into consideration in the determination of the applicant \u2019s sentence .","In the determination of the applicant \u2019s sentence , ORG considered that the applicant \u2019s actions had deprived the community of an estimated amount of ORG . CARDINAL in taxes , this in a large part to the applicant \u2019s personal benefit , and that a prison sentence of DATE and payment of a fine of ORG . CARDINAL would be an appropriate sentence . However , on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time , ORG decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to ORG . CARDINAL .","The applicant \u2019s subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE . The applicant \u2019s complaints about the rejection by ORG of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by ORG under Article PERSON of LAW ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interests of legal unity and legal development .","b. Relevant domestic law","Article CARDINAL of the Code of Criminal Procedure , insofar as relevant , reads as follows :","< Translation >","\u201c CARDINAL . On penalty of nullity , the summons shall contain a description of the fact [ with which the defendant is ] charged , including the approximate time and location where it has allegedly been committed .","The summons shall further set out the circumstances under which the fact has allegedly been committed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67436","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2004,"docname":"CASE OF GIUSEPPE MOSTACCIUOLO v. ITALY (NO. 2)","importance":4,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On CARDINAL DATE Mr F. asked ORG to order the applicant to pay him MONEY ( MONEY ( ORG ) ) for professional services . On CARDINAL DATE the President of ORG granted the application . The order was served on the applicant on DATE .","On DATE the applicant challenged the order in ORG . Preparation of the case for trial began on DATE . Of the CARDINAL hearings listed between CARDINAL DATE and CARDINAL DATE seven were adjourned by the court of its own motion , CARDINAL were devoted to organising expert evidence and supplementary findings and CARDINAL were adjourned at the parties ' request .","On DATE the case was referred to the sezioni stralcio . Of the CARDINAL hearings listed DATE and DATE CARDINAL was adjourned because the parties had not appeared and CARDINAL was adjourned by the court of its own motion .","On DATE the applicant lodged an appeal with ORG under PERSON no . CARDINAL of DATE , known as the \u201c Pinto \u201d Act , complaining of the excessive length of the above - described proceedings . The applicant asked the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the pecuniary and non - pecuniary damage sustained . The applicant claimed , inter alia , LAW in pecuniary and non - pecuniary damages .","In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that a reasonable time had been exceeded . It dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof , awarded him ORG CARDINAL on an equitable basis in compensation for non - pecuniary damage , EUR CARDINAL for costs and expenses incurred in the proceedings before ORG for the costs and expenses incurred in the Pinto proceedings .","That decision was served on the authorities on DATE and became binding on DATE . The applicant served the authorities with notice to comply on DATE . On DATE the applicant lodged an application for seizure with the GPE judge responsible for enforcement proceedings and a hearing was to be held on DATE .","In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of his application .","NORP The applicant did not indicate that he had appealed to ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95604","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2009,"docname":"BEREZOVSKIY v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by PERSON , former Representative of GPE at ORG , and PERSON , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG of GPE upheld the applicant \u2019s action against ORG of GPE ( the Commissariat ) and awarded him MONEY ( RUB ) in compensation for damage and court expenses . ORG also held that the ORG should sign a contract with a commercial provider of communication services undertaking the obligation to pay PERCENT of DATE costs for phone services provided to the applicant . The judgment was upheld on appeal and became final on DATE .","In DATE the applicant complained to ORG about the ORG \u2019s failure to enforce the judgment .","On DATE the ORG found that the ORG \u2019s inactivity was unlawful . The judgment was not appealed against .","On DATE enforcement proceedings were closed as the ORG had paid RUB CARDINAL to the applicant . However , DATE the proceedings were re - opened because the payment only constituted a partial enforcement of the judgment and because the ORG had not yet signed a contract with the communication services provider .","According to the Government , on DATE the ORG paid to the applicant RUB CARDINAL as a PERCENT compensation of DATE costs for phone services provided to the applicant .","On DATE the ORG signed the contract with the communication services provider and thus fully enforced the judgment of DATE as upheld on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109082","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF SHUMKOVA v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant \u2019s son , PERSON , was arrested on suspicion of murder and placed in a temporary remand centre . On DATE he was transferred to a remand prison .","On DATE PERSON was convicted of murder and perjury and sentenced to DATE and CARDINAL months\u2019 imprisonment . The sentence was due to expire on DATE .","On DATE Mr PERSON was transferred from the remand prison to correctional facility ORG in GPE to serve his sentence .","On DATE he was transferred to correctional facility IK-CARDINAL in GPE so as to prevent a conflict with other detainees .","On DATE Mr PERSON requested to be transferred to a different correctional facility since he was in conflict with other detainees and had allegedly been threatened by them .","On DATE Mr PERSON was transferred from correctional facility IK-CARDINAL to correctional facility IK-CARDINAL in GPE , again to prevent a conflict with other detainees .","On DATE he was transferred to correctional facility IK-CARDINAL in GPE - GPE , once again to prevent a conflict with other detainees .","NORP In DATE PERSON was diagnosed with epilepsy . Later the diagnosis was changed to psychopathic personality disorder . DATE he regularly underwent medical examinations and in - patient treatment in prison hospitals :","- on DATE PERSON was admitted to prison hospital no . CARDINAL in GPE and was diagnosed with psychopathic personality disorder and epilepsy ;","- on DATE he was transferred to prison hospital no . CARDINAL in LOC with a diagnosis of epilepsy ; he was discharged on DATE following an improvement in his condition ;","- on DATE Mr PERSON was admitted to prison hospital no . CARDINAL in GPE and was diagnosed with psychopathic personality disorder , with explosive - type accentuation ; he was discharged on DATE following an improvement in his condition ;","- on DATE he was again placed in prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive - hysteroid type , and demonstratively blackmailing behaviour with simulation of psychic equivalences and paraxial disorders ; he was discharged on DATE following an improvement in his condition ;","- on DATE Mr PERSON was admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive - hysteroid type ; he was discharged on DATE following an improvement in his condition ;","- on DATE he was admitted to prison hospital no . CARDINAL in LOC with a diagnosis of psychopathy of explosive - hysteroid type with simulation of paraxial disorders ; he was discharged on DATE following an improvement in his condition ;","- on DATE Mr PERSON was admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of hystero - excitable type and neurocirculatory dystonia ; he was discharged on DATE following an improvement in his condition ;","- on DATE PERSON was admitted to prison hospital no . CARDINAL in LOC with a diagnosis of psychopathy of explosive - hysteroid type with simulation of paraxial disorders ; he was discharged on DATE following an improvement in his condition ;","- on DATE he was admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive type and a duodenal ulcer ; he was discharged on DATE following an improvement in his condition ;","- on DATE Mr PERSON was again admitted to prison hospital no . CARDINAL in GPE with a diagnosis of a duodenal ulcer and hypertension ; he was discharged on DATE following his recovery ;","- on CARDINAL DATE Mr PERSON was once again admitted to prison hospital no . CARDINAL in GPE with a diagnosis of psychopathy of explosive type ; he was discharged on DATE following an improvement in his condition .","On DATE Mr PERSON was placed in a disciplinary cell , where on DATE he slashed his left wrist . After medical aid had been administered to him , he was ordered to return to the cell . When Mr PERSON refused to comply , officers PERSON and PERSON used rubber truncheons and physical force to return him to his cell .","On DATE at TIME Mr PERSON knocked at the door of his cell to attract the warder \u2019s attention , and when the warder PERSON . came over PERSON PERSON said that he needed pills for blood pressure . PERSON . reported accordingly to PERSON , an officer on duty , who promptly arrived at the disciplinary cell and , having opened the door , found that PERSON had slashed veins in his elbows . Mr PERSON said that he needed a bandage but refused to accept medical assistance from the warders and also said that he would not let anybody into the cell except for the prison doctor . At CARDINAL a.m. Major PERSON sent officer NORP to fetch the prison doctor , PERSON At CARDINAL a.m. PERSON arrived , dressed the wounds and administered injections of cardiamine and caffeine . Mr PERSON was then placed on a stretcher and transported to the medical unit ; however , he was dead upon arrival at the unit as a result of heavy blood loss . The time of death was entered in the register as CARDINAL a.m.","On DATE a post - mortem report was drawn up . According to the report , the cause of PERSON death was heavy blood loss as a result of injuries to the large blood vessels in the antecubital fossa and forearms .","On DATE the prison governor , PERSON , decided not to open a criminal investigation into the death of Mr PERSON for lack of corpus delicti .","On DATE the ORG quashed that decision and referred the case back for additional inquiries . He stated , in particular , that in the course of the inquiries conducted it had not been established whether the officers on duty had tried to provide Mr PERSON with medical aid and that neither the officers on duty nor the detainees held in adjacent cells had been questioned .","On DATE the prison doctor PERSON provided an explanation concerning the events of DATE to the ORG . He submitted :","\u201c At TIME on DATE a service car arrived to collect me from my home , and I was told that I had to go urgently to the [ correctional facility ] since a detainee [ had collapsed ] in a disciplinary cell . I immediately got into the car and at TIME we arrived at the [ correctional facility ] . Having entered the disciplinary wing , I asked to open the cell where [ Mr ] PERSON was being held . [ When ] the warder opened the door , I saw that [ Mr PERSON ] was lying motionless on the floor and blood was splashed around the whole cell . Having examined [ Mr PERSON \u2019s ] elbow joints , I found that a vein and an artery were cut open on the left elbow joint and similar injuries had been caused to the right elbow joint . I immediately dressed the wounds and administered injections of cardiamine , caffeine ... , glucose and gluconate and performed artificial ventilation . Since the treatment had no effect , [ Mr PERSON ] was transported to the medical unit and TIME after the beginning of the treatment I pronounced him dead as a result of heavy blood loss . Before my arrival at the disciplinary cell the warders did not provide [ Mr ] PERSON with medical aid since he requested to be seen by a doctor and refused to accept medical aid until the [ doctor \u2019s ] arrival . On DATE [ Mr ] PERSON had committed an act of self - mutilation , having slashed minor blood vessels on his left arm ... An antiseptic dressing was applied . If [ on DATE ] I had arrived TIME , it would still have been impossible ... to save [ Mr PERSON \u2019s ] life since he had arteries and veins slashed in both arms . \u201d","On DATE the prison governor PERSON again refused to open a criminal investigation as no crime had been committed . He stated that on CARDINAL August CARDINAL the prisoner had asked warders to call for a doctor because he had high blood pressure . The warders had discovered that the prisoner had cut veins in both elbows . Mr PERSON had then been placed in the medical unit , where he had died as a result of heavy blood loss .","On DATE the ORG refused to open a criminal investigation into the death of PERSON PERSON for lack of corpus delicti .","On DATE ORG set aside the decision of DATE and opened a criminal investigation . The prosecutor noted that the district prosecutor \u2019s office had failed to investigate the grounds for PERSON confinement in a disciplinary cell , the circumstances leading to his suicide and his mental state , in particular taking into account the medical records concerning his treatment from DATE . Nor had they identified the object with which Mr PERSON had slashed the veins in his elbows .","The case was forwarded to ORG . The applicant was informed of that decision by letters of CARDINAL and DATE .","On DATE another post - mortem report was drawn up on the basis of PERSON medical file . It confirmed the findings of the postmortem report of DATE .","On DATE the prison doctor PERSON was questioned . He stated that he had known Mr PERSON since DATE , when the latter had complained of headaches and high blood pressure . At TIME on DATE , following a call from the officer on duty , he had arrived at the disciplinary cell , where he had found that PERSON had slashed his veins . PERSON had dressed the wounds and administered an injection of caffeine ; however , by that time Mr PERSON was already in a semiconscious state . Mr PERSON had been then transported to the medical unit , where , according to doctor PERSON \u2019s statement , he had died at TIME","On DATE the Ust - Kuta District Prosecutor \u2019s Office refused to institute criminal proceedings against officers PERSON and PERSON concerning the events of DATE , and against warder PERSON . and Major P. concerning the events of CARDINAL DATE . The decision stated , inter alia , that after Mr PERSON had committed an act of self - mutilation on DATE , his cell had been searched on several occasions and no forbidden items had been found . On DATE warder PERSON . and Major P. had immediately provided Mr PERSON with first aid .","On an unspecified date the applicant complained about the length of the criminal investigation . On DATE the Ust - Kuta District Prosecutor \u2019s Office replied to her that it had questioned all the witnesses and had examined medical evidence and that an expert report on Mr PERSON \u2019s mental state at the relevant time had been commissioned .","On DATE the Ust - Kuta District Prosecutor \u2019s Office discontinued the criminal proceedings against the prison governor PERSON and officer PERSON , the head of the operating unit , for lack of corpus delicti . It appears that on an unspecified date that decision was quashed .","On DATE a commission of CARDINAL psychiatrists and CARDINAL psychologist drew up a forensic psychiatric report in respect of PERSON PERSON . The commission concluded as follows :","\u201c [ The commission \u2019s ] conclusion :","[ Mr ] PERSON suffered from a chronic psychiatric disorder in the form of psychopathy of mixed type . [ This diagnosis ] is confirmed by the anamnesis , medical documents and the criminal case file : [ Mr PERSON ] had such character traits as difficulty in communication , quarrelsomeness , hot temper , irritability , aggressiveness , affective instability , tendency towards hysterical and demonstrative reactions with self - mutilation in subjectively difficult situations , tendency towards simulative behaviour ( his examination and lengthy monitoring in the course of repeated placements for psychiatric and neurological in - patient treatment did not confirm the epileptic nature of the \u2018 ORG ) ... However , the above - mentioned peculiarities of [ Mr PERSON \u2019s ] psychic state were not accompanied by a broad decrease in intellect or disturbances of thought , delirium , hallucinations or disturbances of critical and prognostic functions , since as a whole he could control his actions ( his conduct changed depending on the place and environment , he took into account the social status and rank of the interlocutor ) , realise the meaning of his actions and direct them . In the period preceding [ the act of self - mutilation committed by PERSON PERSON ] ... he did not display signs of a temporary mental disorder or dementia , he did not have delirium or hallucinations , and he could realise the meaning of his actions and direct them .","The psychologist \u2019s conclusion :","Psychological analysis of the contents of the criminal case file confirms that [ Mr ] PERSON had such individual psychological peculiarities as egocentrism , emotionally volitional instability , hot temper , increased irritability , malignance , aggressiveness , difficulties in interpersonal contact , tendency towards conflict in close contact , tendency to create conflict situations , [ tendency towards ] asocial acts , and impulsiveness . In subjectively difficult situations [ he ] displayed affective outbursts , demonstrative behaviour , a tendency towards impulsive behavioural reactions , simulative behaviour and suicide attempts ... The analysis of the contents of the criminal case file confirms the lack of extreme conditions which would have prompted the suicide , and of conditions that would have been conducive to the accumulation of negative emotional experiences and ... neuropsychological tension . [ Mr PERSON \u2019s ] individual psychological peculiarities were conducive to his committing suicide . \u201d","On DATE PERSON Kuta District Prosecutor \u2019s Office again discontinued the criminal proceedings against the prison governor PERSON and officer PERSON on the same ground as before .","On DATE the Deputy Prosecutor of GPE quashed the decision of DATE as ill - founded and premature . He stated , in particular , that the investigating authorities had failed to clarify all the circumstances preceding PERSON death , had not fully complied with the instructions of ORG , had not made a legal assessment of the correctional facilities\u2019 ORG actions as regards the search in the disciplinary cell , and of the prison doctor PERSON \u2019s actions as regards the untimely medical aid provided on DATE .","On DATE the Ust - Kuta District Prosecutor \u2019s Office discontinued the criminal proceedings on the following grounds .","According to the decision , Mr PERSON was irritable , aggressive , had an explosive temper and had constant conflicts with other detainees and warders . He often complained of poor health and headaches . During the period of serving his sentence , that is , from DATE , PERSON was on TIME occasions admitted to hospitals within the penal system . In DATE he was diagnosed with epilepsy ; however , the diagnosis was not confirmed and in DATE it was changed to psychopathy . From CARDINAL May to DATE Mr PERSON underwent treatment for his condition in Hospital No . CARDINAL in GPE . For swearing and threatening physical violence he was discharged from the hospital on DATE and transferred back to correctional facility IK-CARDINAL . CARDINAL DATE Mr PERSON was subjected to disciplinary measures on CARDINAL occasions .","On DATE Mr PERSON was placed in a disciplinary cell for a breach of discipline . On DATE he cut his veins . After medical aid had been administered to him , he refused to return to his cell , insulted and threatened officers PERSON grabbed PERSON \u2019s uniform . So as to prevent his unlawful threats , PERSON , using physical force and rubber truncheons , placed him in the cell . Thereafter PERSON was examined by a member of staff of the medical unit , who noted bruises on his body and extremities . According to the results of the investigation , officers PERSON and PERSON lawfully used rubber truncheons and physical force against Mr PERSON . On the same date the prison governor ordered PERSON placement in a disciplinary cell for the act of self - mutilation .","At TIME on DATE PERSON , while being held in disciplinary cell no . DATE , cut his veins . He refused medical aid from the officers on duty and requested to be seen by a doctor . At CARDINAL a.m. the prison doctor PERSON provided Mr PERSON with medical aid , having dressed the wounds and administered injections , following which Mr PERSON was transported to the medical unit , where he died at TIME as a result of heavy blood loss .","The prison governor PERSON submitted that on DATE he had ordered PERSON placement in a disciplinary cell for having committed an act of self - mutilation .","A witness , S - v , stated that on DATE he had been held in an adjacent disciplinary cell when he had heard Mr PERSON shouting and complaining of high blood pressure . Then PERSON had cut his veins . S - v did not know why he had done so .","Major PERSON stated that on DATE he and warder PERSON . had been among the officers on duty in the disciplinary wing . At TIME he had heard screaming from cell no . CARDINAL , where PERSON was being held . At around CARDINAL.CARDINAL a.m. he and warder PERSON . had entered the cell and had seen that Mr PERSON had cut his veins . They had tried to provide him with medical aid so as to stop the bleeding , but he had firmly refused to be aided and to leave the cell and had stated that he needed a doctor . Major PERSON had then called for a doctor , who had arrived at the disciplinary wing at CARDINAL a.m. PERSON had dressed the wounds and had administered injections , following which PERSON PERSON had immediately been transported to the medical unit . However , because of the blood loss he had died there at TIME In the course of additional questioning PERSON submitted that late in TIME QUANTITY DATE he and warders NORP and PERSON . had conducted an inspection of the disciplinary wing and had not found any forbidden objects .","PERSON . made a similar statement and added that after Mr PERSON had been pronounced dead , officer PERSON , the head of the operating unit , had arrived at the disciplinary wing and conducted an inspection of cell no . CARDINAL .","PERSON submitted that on DATE he had been the prison doctor on standby duty . At TIME , after a call from an officer on duty , he had arrived at the disciplinary wing , where in cell no . CARDINAL he had dressed the wounds and administered an injection of caffeine to PERSON , who had cut his veins . At the time Mr PERSON had been in a semi - conscious state . Then Mr PERSON had been transported on a stretcher to the medical unit , where he had died . PERSON had pronounced him dead at TIME","The post - mortem report stated that the death of Mr PERSON had occurred because of heavy blood loss as a result of injuries caused by the slashing of the large vessels in the elbows and forearms . It also noted that the prisoner had had bruises on his body and legs .","According to a psychiatric and psychological expert report , Mr PERSON suffered from psychopathic personality disorder , was in constant conflict with other persons , and tended towards hysterical behaviour , self - mutilation , suicide attempts and simulation of epileptic fits . However , he was able to assess and control his conduct and never showed symptoms of imbecility . The experts did not establish the existence of any circumstances which could have prompted PERSON to commit suicide .","In the course of the investigation no proof of prison governor PERSON \u2019s and officer Y. \u2019s having committed such offences as abuse of official powers and incitement to suicide was found .","In the course of additional inquiries , it was established that Mr PERSON had cut his veins with a piece of a blade from a disposable safety razor which he had had with him in the disciplinary cell as it was allowed by the internal regulations . When warder NORP had asked Mr PERSON what he had done with the piece of blade , he had replied that he had placed it in the lavatory pan .","The additional check also established that duty schedules were fixed for medical staff for DATE and DATE . At TIME a member of the medical staff remained on duty at his home . The time required for a member of the medical staff to arrive at the correctional facility in reply to an urgent call depended on the distance between his home and the facility . PERSON , who had been the prison doctor on duty on DATE , had arrived at the facility within TIME from the departure of the operating unit to fetch him . This was also confirmed by PERSON in the course of additional questioning and by the head of the medical unit , K - v .","Warder NORP stated that during TIME DATE he had been the assistant officer on duty . At TIME on DATE he , Major PERSON and warder PERSON . had conducted an inspection of the disciplinary wing and had found no forbidden objects . At TIME or a little later , following a call from warder PERSON . , he had arrived at disciplinary cell no . CARDINAL and had seen that PERSON had cut his veins . When he had asked him how he had cut his veins , PERSON had explained that he had used a piece of blade from a disposable safety razor which he had thrown into the lavatory pan . Mr PERSON had refused to leave the cell to be provided with first aid and requested to be seen by a doctor . PERSON then had gone to fetch PERSON and had returned with him TIME . He did not know what medical aid PERSON had provided since he had left to inspect the facility . Having reached the medical unit , he had learnt from PERSON that PERSON had died of blood loss .","Having regard also to ( i ) Annex CARDINAL to ORG , adopted by order no . CARDINAL of ORG of DATE , which did not forbid the keeping of a disposable safety razor in a disciplinary cell , and ( ii ) ORG held in ORG , adopted by order no . CARDINAL of ORG DATE , which provided that constant supervision of inmates held in disciplinary cells must be effected through the inspection hole in the doors of the cells , and that officers on duty must call a doctor for inmates requiring medical assistance , the Ust - Kuta District Prosecutor \u2019s Office concluded that the prison governor PERSON , the head of the operating unit NORP , Major PERSON , warders NORP and PERSON . and the prison doctor PERSON had not committed the alleged offences of incitement to suicide , abuse of official powers and neglect of duty or failure to assist in a dangerous situation , and discontinued the criminal proceedings .","On DATE ORG dismissed a complaint by the applicant about the discontinuation of the criminal proceedings , finding that decision to have been lawful and well - founded .","DATE . On an unspecified date the applicant challenged the decision of CARDINAL DATE before a court . She also complained that her son \u2019s beating with rubber truncheons by warders on DATE had not been lawful .","On DATE the Ust - Kuta District Court of GPE dismissed the applicant \u2019s complaint . The applicant was not present at the hearing .","On DATE ORG quashed that decision and remitted the case for a fresh examination on the ground that the applicant had not been duly notified of the hearing of DATE .","On DATE the Ust - Kuta District Court held that the prosecutor \u2019s decision was lawful and dismissed the applicant \u2019s complaints .","On DATE ORG upheld the decision on appeal . The applicant \u2019s subsequent application for supervisory review of that decision was refused by ORG on DATE .","On DATE PERSON , a neuropathologist at prison hospital no . CARDINAL , was questioned . He submitted that in DATE Mr PERSON had been admitted to the hospital , having been diagnosed with epilepsy . However , the diagnosis had not been confirmed and Mr PERSON had been diagnosed with a psychopathic disorder . During his stay at the hospital he had displayed unbalanced behaviour and mood swings , and had been irritable and emotionally unstable . Mr PERSON had been provided with a complete course of treatment . His parents had never been asked to provide any medicines for him since all the required medicines had been available at the hospital .","Having examined Mr PERSON \u2019s medical file , the neurologist PERSON stated that in his childhood he had suffered a craniocerebral trauma . Since DATE he had been suffering from frequent fits that had mostly occurred at TIME . He had been diagnosed with epilepsy and had undergone in - patient treatment in DATE . Later he had been treated in the psychiatric ward of prison hospital no . CARDINAL . There he had repeatedly feigned polymorphous fits and had been placed under constant monitoring , which had revealed no momentary lapses of reason or convulsive contractions , although irritability , hot temper and rudeness had remained . Accordingly , the diagnosis of epilepsy had been changed to CARDINAL of psychopathy . During the term of PERSON PERSON \u2019s detention , in - patient and outpatient treatment and supervision had been fully available to him .","NORP The head of a psychiatric ward , PERSON . , having studied PERSON medical file , concluded that while in detention he had been fully provided with the requisite medical assistance for his mental and somatic state . The diagnosis of epilepsy had been correctly discarded and had not subsequently been confirmed .","On DATE , the head of the medical unit of correctional facility IK-CARDINAL , issued a certificate concerning the circumstances of Mr PERSON \u2019s death . The certificate stated :","\u201c At TIME on CARDINAL DATE ... [ Mr PERSON ] knocked at the door of disciplinary cell no . CARDINAL , told [ warder PERSON . ] that he had high blood pressure and asked him to call for a doctor on duty .","[ PERSON . ] reported to [ Major PERSON ] , [ who ] immediately sent [ warder NORP ] in a car to fetch [ prison doctor PERSON ] , who lived near the correctional facility and was required to go to the facility in the event of an emergency . At the same time [ Mr PERSON ] was placed under constant visual supervision through the inspection hole in the door of the cell .","At TIME [ the warders ] opened cell no . CARDINAL following changes in [ Mr Shumkov \u2019s ] behaviour and discovered that he had committed an act of self - mutilation , having cut blood vessels in both arms .","[ Mr PERSON ] refused to leave the cell to receive medical assistance and stated that he would wait for the doctor in the cell . [ The warders ] brought bandages to the cell in order to dress the wounds . [ Mr PERSON ] took the bandages but refused [ the warders\u2019 ] medical assistance .","At TIME [ Dr PERSON ] arrived and immediately provided [ Mr PERSON ] with medical assistance in the cell . [ He ] dressed the wounds so as to stop the bleeding , administered injections to increase blood pressure and stimulate cardiac activity ... , and performed artificial lung ventilation and indirect heart massage , following which [ Mr PERSON ] was taken to the medical unit ... where , despite the efforts to resuscitate him , at TIME he was pronounced dead as a result of heavy blood loss caused by the injuries to the large blood vessels . \u201d","According to a certificate of CARDINAL DATE issued by the prison authorities , during Mr PERSON \u2019s detention in correctional facility IK-CARDINAL from DATE and from DATE to CARDINAL DATE he was held in conditions which complied with the relevant regulations . There was no infringement of PERSON PERSON \u2019s right to life by any officers of the correctional facility .","Another certificate issued on the same date stated , inter alia , that in the course of serving his sentence Mr PERSON had breached prison discipline CARDINAL times , as a result of which he had on CARDINAL occasions been placed in the disciplinary wing and CARDINAL times in solitary confinement in a disciplinary cell . In DATE he was recognised as a persistent offender and placed in stricter conditions of detention . All these measures were applied lawfully . Mr PERSON was hot - tempered , tended to create conflicts , behaved defiantly and did not react to admonitions .","NORP In an undated certificate prison officer PERSON stated that throughout the term of his imprisonment PERSON had physically resisted prison officers , provoked conflicts with other inmates , behaved aggressively and breached disciplinary regulations .","In CARDINAL undated certificates prison officers PERSON and PERSON stated that in DATE they had served in correctional facility IK-CARDINAL . They submitted that Mr PERSON had been mentally unstable and had repeatedly created conflicts with other detainees , which was the reason for his subsequent transfer to a different correctional facility . A number of times he had attempted to commit acts of self - mutilation by cutting his forearms . He had also regularly been admitted for treatment in prison hospital no . CARDINAL .","In a certificate of DATE prison officer PERSON stated that during the term of his imprisonment PERSON PERSON had on a number of occasions been subjected to disciplinary sanctions for disobedience , insults and conflicts with other inmates . He had often been aggressive and violent . Such behaviour had been caused not only by his psychological particularities but by a manifest unwillingness to follow the prison rules .","In a report of DATE prison officer P - na stated that from DATE she had held a post as inspector of DATE . She remembered PERSON as a frequent offender who had behaved defiantly towards other detainees , which had often caused conflicts .","On DATE inspector PERSON of correctional facility IK-CARDINAL drew up an internal inspection report concerning the incident of CARDINAL DATE . According to the report , the use of rubber truncheons in respect of Mr PERSON was lawful and proportionate .","On DATE the Ust - Kuta Prosecutor \u2019s Office refused to institute criminal proceedings against officers PERSON of the events of DATE . The decisions stated , inter alia :","\u201c On DATE [ the detainee Mr ] PERSON committed an act of self - mutilation having slashed his veins . However , he was provided with medical aid in due time . After [ officers PERSON and S. ] asked [ Mr ] PERSON to return to his cell , the latter refused , grabbed [ L. \u2019s ] uniform , swore at him and threatened him with physical violence . So as to prevent the unlawful threats of [ Mr ] PERSON , [ L. and S. ] , using physical force and rubber truncheons , placed him in the cell . [ Thereafter ] [ Mr ] PERSON was examined by a member of staff of the medical unit , who noted bruises on his body and extremities .","Taking into account the foregoing , as well as the fact that [ officers PERSON used [ rubber truncheons ] and physical force in respect of [ Mr ] PERSON after the latter \u2019s refusal to comply with their lawful orders , the institution of criminal proceedings against [ L. and PERSON ] should be refused for lack of corpus delicti . \u201d","Article CARDINAL of the LAW of GPE protects the right to life .","The Health Care ( General Principles ) Act of DATE provides that persons serving a sentence in prisons are entitled to medical assistance at the ORG \u2019s expense and , as the case may be , at institutions run by the general public health service ( section CARDINAL ) .","DATE . LAW of DATE provides that correctional institutions are responsible for inmates\u2019 security and healthcare ( section CARDINAL ) .","DATE Code on the Execution of Sentences , as it read at the material time , provided that inmates suffering from a psychiatric disorder which did not attain the degree of legal insanity could be subjected to compulsory medical treatment subject to authorisation by a competent court . Such inmates included persons who posed a danger to others or themselves , in which case the prison authorities had to apply for a court order for their compulsory medical treatment .","Article CARDINAL of the DATE Code on LAW , as it read at the material time , provided that medical units and hospitals , including specialised psychiatric and tuberculosis hospitals , were available within the penal system to provide medical care for inmates ( \u00a7 CARDINAL ) . Medical aid should be provided in accordance with the laws of GPE and statutory instruments of ORG and ORG ( \u00a7 \u00a7 CARDINAL and CARDINAL ) .","According to ORG , adopted by order no . CARDINAL of ORG of DATE , in force in the relevant part until DATE , a correctional facility provided medical examinations , supervision and treatment of inmates using the means and facilities recommended by ORG . In instances where medical aid could not be provided in a medical institution within the penal system the inmate could be transferred to a medical institution within the ordinary healthcare system ( section CARDINAL ) .","The Internal Regulations further provided that inmates placed in disciplinary cells or solitary confinement could not take foodstuffs and personal items to their cell , except for a towel , a piece of soap , toothpaste and a toothbrush ( section CARDINAL ) . Annex CARDINAL to ORG listed items whose use was forbidden in a correctional facility , including knives and other sharp cutting or piercing objects .","Annex CARDINAL to ORG , adopted by order no . CARDINAL of ORG of DATE , which from DATE ( the new Regulations ) replaced ORG adopted on DATE , listed items whose use was forbidden in a correctional facility , including knives , straight razors and blades for safety razors . ORG were published in DATE Acts of ORG ( no . DATE ) .","Under LAW it was permitted to inmates placed in disciplinary cells or solitary confinement to take with them to their cell a towel , a piece of soap , toothpaste and a toothbrush , toilet paper , hygienic items ( for women ) , newspapers and magazines they were subscribed to , religious literature and objects of cult ( section CARDINAL ) .","The Instruction on Supervision of Inmates held in ORG , adopted by order no . CARDINAL of ORG DATE , as in force at the relevant time , provided that officers responsible for supervision of inmates held in disciplinary cells monitored the inmates\u2019 presence and conduct by means of constant surveillance through inspection holes in the doors of the cells . Officers on duty had to call for a doctor for inmates requiring medical aid ( section CARDINAL.CARDINAL.CARDINAL ) . In the event of sudden illness , self - mutilation or a suicide attempt on the part of an inmate , a junior officer immediately had to alert the officer on duty and , upon the latter \u2019s arrival , and having ensured that it was not a case of simulation , would open the cell and provide the inmate with the requisite aid . The officer on duty would then decide what further action to take ( section CARDINAL ) .","DATE . The DATE Code of Criminal Procedure of the RSFSR , which was in force until DATE , required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first report on the relevant facts ( Articles CARDINAL and CARDINAL - CARDINAL ) .","No criminal proceedings could be brought in the absence of a corpus delicti ( LAW . Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed against to a higher - ranking prosecutor or to a court ( Articles CARDINAL and CARDINAL ) .","On DATE the DATE Code of Criminal Procedure of the ORG was replaced by LAW .","Article CARDINAL of the new Code lays down a judicial procedure for the consideration of complaints . Orders of an investigator or prosecutor refusing to institute criminal proceedings or terminate a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen \u2019s access to justice , may be appealed against to a local district court , which is empowered to check the lawfulness and grounds of the impugned decisions ."],"violated_articles":["2"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79265","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2007,"docname":"CASE OF PAVLIK v. SLOVAKIA","importance":3,"conclusion":"Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in Zvolen . He was a member of ORG ( PERSON ) of GPE .","On DATE the applicant was charged ( obvinen\u00fd ) with carrying out business activities without authorisation ( Article CARDINAL \u00a7 CARDINAL and CARDINAL ( a ) of LAW ( CC ) ) , extortion ( LAW ) and rape ( LAW ) . The charges were based on the suspicion that the applicant who was disqualified from carrying out business activities by law on account of his status as a police officer had arranged for a third person , PERSON , to run a restaurant on his behalf . He was further suspected of having threatened P. with violence in order to make her give him an amount of money and of having forced at gunpoint a waitress , Ms. PERSON , to have intercourse with him . The blackmail charge was later extended as the applicant was also suspected of having made violent threats against PERSON in order to force her to be his girlfriend .","The applicant was detained , dismissed from the police and tried on the above charges . The details are set out below .","On DATE the Minister of the ORG issued an order ( person\u00e1lny rozkaz ) dismissing the applicant from service in the police . The evidence available showed that the applicant had committed the acts of which he was charged . Such conduct grossly violated the service oath and , accordingly , was incompatible with service in the police . The applicant \u2019s administrative appeal ( rozklad ) was dismissed on DATE .","The applicant \u2019s subsequent numerous requests that ORG review his dismissal in a special procedure outside the framework of ordinary appellate proceedings ( mimo odovlacieho konania ) and that the proceedings be reopened failed .","On DATE the applicant challenged his dismissal by way of an administrative - law action in ORG ( Najvy\u0161\u0161\u00ed s\u00fad ) . It was declared inadmissible on DATE on the ground that it clearly had been filed outside the statutory DATE time - limit , counted from the final administrative decision in the case which was the decision of DATE .","On DATE the applicant challenged the dismissal order of DATE in ORG ( \u00dastavn\u00fd s\u00fad ) under LAW . It was declared inadmissible on DATE as being belated . Moreover , and in any event , the review of the dismissal order fell within the jurisdiction of ORG . ORG review was merely subsidiary and did not apply to the dismissal order directly . As for the decision of ORG , it could not be reviewed either because the applicant \u2019s constitutional complaint was not directed against it .","On DATE , at TIME , the police detained the applicant on the above charges . He was assigned an ex officio lawyer .","On DATE the applicant was brought before the judge of the Zvolen ORG s\u00fad ) .","The parties disagree as to the exact time when this took place . The Government rely on TIME of the applicant \u2019s questioning which bear his signature and indicate that he had appeared before the judge at TIME The applicant now claims that he was presented to the judge at TIME , which is after the CARDINAL statutory time - limit .","The applicant pleaded not guilty . There is no indication that he complained about infringement of the above time - limit . The questioning was concluded at TIME with ORG decision to remand the applicant in detention ( see the subsequent paragraph ) .","On DATE ORG remanded the applicant under LAW ( b ) and ( c ) of LAW ( ORG ) which allowed for detention of persons charged with criminal offences where there were reasonable grounds for believing that if released they would interfere with the course of justice or continue to engage in criminal activities . The court found it established that the applicant \u2019s liberty had been restricted on DATE at TIME There was a strong suspicion against him which was based on testimonies of P. , PERSON and CARDINAL witnesses . The applicant was suspected of having threatened and used violence against P. and PERSON over an extended period . Therefore it could be presumed that he would continue doing so with a view to hampering the proceedings . This presumption rendered his detention justified on the legal grounds referred to above .","The applicant \u2019s appeal ( s\u0165a\u017enos\u0165 ) against the remand order was dismissed by ORG ( PERSON s\u00fad ) on CARDINAL DATE .","In the period prior to DATE the applicant filed numerous petitions for release . They were dismissed by the prosecution service , ORG and ORG on various grounds including that some of the petitions had been lodged DATE from the final determination of the previous petition and , as they contained no new relevant information , they had to be dismissed under LAW of the ORG .","In all cases the authorities found that the suspicion against the applicant and the grounds for his detention , as established at the time of his remand , still persisted . In decisions of DATE and DATE the ORG moreover observed that covert messages from the applicant to his wife , PERSON and her family members had been intercepted , which showed that he had actually attempted to interfere with the course of justice and that he was likely to act violently . The existence of such messages was established by the prison administration and the prosecution service , which confirmed it in their respective letters of CARDINAL and DATE .","On DATE ORG authorised extension of the applicant \u2019s detention under LAW ORG until DATE .","On DATE , ORG found the applicant guilty and sentenced him ( see below ) . At the same time it decided that for the time being the applicant should be released from detention . The release order was however not yet enforceable as it had been challenged by the prosecution .","On DATE ORG allowed the prosecutor \u2019s appeal against the release order and ruled that the applicant should remain in detention . With reference to the intercepted letters ORG found that the applicant had attempted to influence witnesses and concluded that , if released , it was likely that he would exert pressure on the victims with a view to having their statements modified .","On DATE ORG dismissed the applicant \u2019s petition for release . The applicant appealed to ORG but on DATE withdrew the appeal . ORG acknowledged the withdrawal on DATE .","On DATE the applicant petitioned for release again . He contested the charges and argued that there was no risk that he would continue to offend as envisaged by LAW ) of the ORG .","NORP In a letter of DATE ORG informed the applicant that under LAW of the ORG his petition of DATE could not be dealt with because it had been lodged prior to the final determination of his previous petition and contained no new relevant information .","On DATE the applicant lodged a fresh petition for release and ORG ordered his release on DATE .","On DATE ORG upheld the release order of DATE on the prosecutor \u2019s appeal . It referred to the evidence taken in the course of the proceedings , the length of the applicant \u2019s detention and the fact that his criminal record was clear . It concluded that the reasons for his detention had fallen away .","The applicant was released on DATE .","NORP In the course of the proceedings the applicant unsuccessfully attempted to have criminal proceedings brought against the officials dealing with his case . He complained , inter alia , that no decision had been given to authorise the extension of his detention after DATE ( see paragraph CARDINAL above ) .","On DATE ORG issued a search warrant for CARDINAL flats and a cottage used by the applicant . The searches took place on CARDINAL and DATE .","On DATE the Zvolen ORG dismissed the applicant \u2019s appeal against his charges . His appeal against the extended charge for extortion was dismissed later .","On DATE ORG assigned the applicant a new ex officio lawyer at the applicant \u2019s request .","On DATE the applicant was indicted to stand trial in ORG on the above charges .","On DATE the case was assigned to a different judge of ORG , GPE , because the previous judge knew the applicant and felt personally biased .","ORG held hearings on DATE at which it heard the applicant , the victims and several witnesses .","Following the hearing of DATE , on DATE , ORG found the applicant guilty as charged and sentenced him to CARDINAL years\u2019 imprisonment . Both the applicant and the prosecution appealed .","On DATE ORG quashed ORG judgment and remitted the case to the latter for the taking of further evidence and re - examination . ORG held that it was necessary to rehear the case as in the course of the proceedings there had been a change in the ORG chamber dealing with it .","On DATE ORG assigned the applicant a new ex officio lawyer at the request of the previous lawyer who felt that the applicant had no confidence in him .","On DATE ORG exempted Judge PERSON from dealing with the applicant \u2019s case at her own request because she felt partial because of the applicant \u2019s persistent use of invectives against her .","The case was assigned to a new judge , ORG , who also requested his exclusion . He submitted that he knew the applicant and that he felt concerned by his invectives directed against the previous judge .","On DATE ORG ruled that M.\u0160. would not be excluded from dealing with the applicant \u2019s case .","On DATE M.\u0160. again requested his exclusion from the case as he felt biased after the applicant had filed an unsuccessful criminal complaint against him .","On DATE ORG found that M.\u0160. was not disqualified from dealing with the case as , being a professional judge , he had to be prepared to accept a certain level of criticism without losing his impartiality .","On DATE ORG ordered an expert examination of the applicant \u2019s mental health . On DATE ORG quashed this order on the applicant \u2019s appeal for reasons of formality .","DATE and DATE ORG held CARDINAL hearings and made CARDINAL attempts at establishing the whereabouts of P. who was believed to be staying in GPE .","On DATE ORG held another hearing following which , on DATE , it found the applicant guilty as charged and sentenced him to CARDINAL half years\u2019 imprisonment and a fine . In reaching that conclusion ORG took into account the testimonies of numerous witnesses , reports from several experts and complex documentary evidence . The applicant appealed .","On DATE ORG quashed the judgment of DATE and found the applicant guilty of having run a business without authorisation and of extortion . It acquitted him of the remaining charges and sentenced him to CARDINAL imprisonment and a fine .","The Prosecutor General challenged the judgment of DATE by means of a complaint in the interest of law ( s\u0165a\u017enos\u0165 pre poru\u0161enie z\u00e1kona ) filed with ORG .","On DATE ORG quashed the judgment of DATE and ordered ORG to re - examine the applicant \u2019s appeal against the judgment of DATE .","ORG called hearings for DATE and DATE . They had to be adjourned as the applicant did not appear .","ORG requested that the applicant be brought by the police and eventually issued a warrant for his arrest .","The applicant then appeared before ORG of his own accord and the arrest warrant was quashed .","On DATE ORG held a hearing following which , on DATE , it upheld ORG judgment of DATE as regards the conviction and increased the penalty which had been imposed in the judgment of CARDINAL DATE to CARDINAL years\u2019 imprisonment .","The Minister of ORG challenged the judgment of DATE by means of a complaint in the interest of law . He contested mainly the imposed sentence considering that ORG had failed to take due account of the seriousness of the offences and the context in which they had been committed .","On DATE ORG quashed the judgment of DATE finding that the sentence imposed was too lenient . ORG was accordingly instructed to re - examine the applicant \u2019s appeal against the judgment of DATE .","DATE . On DATE ORG held a hearing following which , on DATE , it increased the sentence imposed in the judgment of DATE to CARDINAL years\u2019 imprisonment . No further appeal was available . The applicant then unsuccessfully sought to challenge his conviction in ORG .","On DATE the applicant lodged a complaint under Article CARDINAL of the LAW asserting violations of his constitutional rights in the criminal proceedings against him . He complained inter alia about the length of the proceedings , directing this part of his complaint exclusively against ORG .","On DATE ORG declared the complaint about the length of the criminal proceedings before ORG admissible and the remaining complaints inadmissible .","On DATE ORG found that ORG had violated the applicant \u2019s right to a hearing \u201c without unjustified delay \u201d ( LAW ) .","ORG found that the subjectmatter of the proceedings was not particularly complex and that no undue delays could be attributed to the applicant . In contrast , ORG had been inactive without any justification DATE and DATE .","ORG concluded that the finding of a violation of the applicant \u2019s right was in itself sufficient just satisfaction for him . In view of all the circumstances including the fact that there had only been CARDINAL relatively insignificant period of unjustified delay , ORG considered that financial compensation for the applicant \u2019s nonpecuniary damage would not be appropriate . It however awarded him reimbursement of his legal costs .","Article CARDINAL provides that international instruments on human rights and freedoms ratified by GPE and promulgated under statutory requirements have precedence over national laws , provided that they guarantee greater constitutional rights and freedoms .","Under ORG case - law ( see , for example , the decision of DATE , file no . I. \u00daS CARDINAL ) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the LAW and with international treaties . Accordingly , the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the LAW or international treaties .","Pursuant to LAW no one shall be prosecuted or deprived of liberty except for reasons and in a manner provided for by law .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .","Under LAW any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law .","Detention on remand is governed by the provisions of Articles CARDINAL et seq . A person charged with a criminal offence ( obvinen\u00fd ) can be detained inter alia when there are reasonable grounds for believing that he or she would influence the witnesses or the co - accused or otherwise hamper the investigation ( LAW ( b ) ) or continue criminal activity , complete an attempted offence or commit an offence which he or she prepared or threatened to commit ( LAW ( c ) ) .","Article CARDINAL \u00a7 CARDINAL provides inter alia that where detention in the pre - trial phase of proceedings exceeded DATE and the release of the detainee would jeopardise the purpose of the proceedings , a single judge can extend the detention for a period of DATE . A motion for such an extension shall be lodged by the public prosecution service . A further extension of detention in the pre - trial phase of the proceedings beyond the DATE limit can be authorised by a chamber of judges up to a maximum of DATE .","Under LAW detention on remand in the pre - trial phase of the proceedings and in the proceedings before a court taken together can not exceed DATE . An extension by DATE can be authorised by ORG .","Article CARDINAL \u00a7 CARDINAL entitles the detainee to apply for release at any time . When the public prosecutor dismisses such an application in the pretrial phase of the proceedings , he or she shall submit it immediately to the court . The court shall rule on such an application without delay . If the application is dismissed , the accused may renew it DATE after the decision has become final unless he or she invokes different reasons .","Under LAW , natural persons have the right to protection of their personality rights ( personal integrity ) , in particular their life and health , civil and human dignity , privacy , name and personal characteristics .","Under LAW , natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated . They also have the right to appropriate just satisfaction .","Article CARDINAL \u00a7 CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party \u2019s dignity or social standing has been considerably diminished , the injured party is also entitled to financial compensation for non - pecuniary damage .","In an action of DATE a married couple asserted a claim against ORG for financial compensation for non - pecuniary damage caused to them by detention on remand and criminal proceedings against them , which ended with their acquittal . The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary .","The action was examined on appeal by ORG under file number CARDINALCo CARDINAL\/CARDINAL . In its judgment of DATE the court interpreted the claim as a claim for protection of personal integrity under LAW . It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness . Relying on the judgment of ORG of DATE file number ORG CARDINAL\/CARDINAL , the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal . The court also addressed briefly the length of the plaintiffs\u2019 detention and concluded that it had not been excessive . The above claim was thus not accepted , unlike other claims made in the same action ( compensation for lost profit , legal costs and infringement of the presumption of innocence ) .","Further details concerning protection of personal integrity under LAW are summarised in GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .","Article CARDINAL defines the jurisdiction of the ordinary courts . Pursuant to its first paragraph , unless jurisdiction is conferred by statute on other authorities , the ordinary courts examine and decide upon matters stemming from relations under civil law , labour law , family law , the law of cooperatives , and commercial law . Under paragraph CARDINAL , other matters may be examined and decided upon by the ordinary courts only if a statute so provides .","DATE . Under the terms of LAW are bound , inter alia , by the decisions of the competent authorities that a criminal offence has been committed and by whom ( paragraph CARDINAL ) . Other questions which normally fall to be decided by other authorities can be decided by a civil court . However , if the competent authorities decided upon such a question , the civil court will adopt their decision ( vych\u00e1dza z ich rozhodnutia ) .","The Act lays down rules for ORG liability for damage caused by unlawful decisions ( Part ( \u010cas\u0165 ) One ) and wrongful official conduct ( Part CARDINAL ) .","NORP The general scope of State liability for damage caused by unlawful decisions is defined in LAW . Pursuant to this provision the ORG is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings . However , decisions concerning detention and sentencing are excluded .","Special rules concerning ORG liability for damage caused by decisions on detention are embodied in sections CARDINAL et seq . The ORG is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted ( section CARDINAL ( CARDINAL ) ) .","Section CARDINAL ( CARDINAL ) renders the ORG liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions .","A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the wrongful act in question .","The LAW does not allow for compensation for non - pecuniary damage unless it is related to a deterioration in a person \u2019s health ( for further details , see PERSON v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93598","languageisocode":"ENG","respondent":"CYP","branch":"CHAMBER","date":2009,"docname":"CASE OF CHRISTODOULOU v. CYPRUS","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Christos Rozakis;Costas Pamballis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Pamballis;Sverre Erik Jebens","text":["The applicants were born in DATE and DATE respectively and live in GPE .","The applicants rented a souvenir shop together in GPE . On DATE they filed an application ( KCARDINAL\/CARDINAL ) before ORG ( \u201d the LOC \u201d ) challenging the amount of rent they paid the respondents and seeking its reduction .","On DATE the ORG ordered that the application be served abroad on the respondents in GPE .","On DATE the respondents filed their defence .","Upon completion of the pleadings , the applicants , on DATE , requested the ORG to list the application for mention .","The application was listed for directions CARDINAL times DATE and DATE . No court records are available for this period .","On DATE the respondents filed an application for discovery and inspection of documents .","On DATE the respondents requested that the ORG carry out a local survey . With the applicants\u2019 agreement , this was carried out on DATE .","The case was listed for a directions hearing to be held on DATE with a view to setting a hearing date after the parties\u2019 lawyers had the opportunity to inform the court of their decision regarding the manner in which the court \u2019s expert would testify .","On the above date the respondents requested leave to amend their valuation .","The application was set down to be heard on DATE and the court directed that its expert would testify and be cross - examined on DATE .","The hearing started on the above date . Following the expert \u2019s testimony , the respondents requested that cross - examination take place on another date to allow their expert to assess the evidence given and prepare their cross - examination . The applicants\u2019 lawyer objected .","The court granted the adjournment and set the case down for DATE after discussing the suitability of that date for the lawyers . Costs were ordered against the respondents .","The hearing continued on the above date with the cross - examination of the ORG \u2019s expert by the respondents\u2019 lawyer . When this finished the hearing was adjourned to DATE at the ORG request .","The hearing continued on DATE with the cross - examination of the ORG \u2019s expert by the ORG lawyer . At the end of the hearing the respondents requested the court to join the application with another CARDINAL applications ( KCARDINAL\/CARDINAL , KCARDINAL\/CARDINAL and KCARDINAL\/CARDINAL ) as they all concerned the determination of the rental value of shops which were situated in the same complex . The parties agreed and the court issued an order joining the applications . As the lawyers considered there was not enough time for the testimony and cross - examination of the respondents\u2019 expert the hearing was fixed for DATE , following the DATE vacation .","On the above date the court accepted the parties\u2019 request that the evidence of the expert be given at the same time for all the cases followed by separate cross - examination by each lawyer . After the examination - in - chief of the first witness , the examination - in - chief of the second witness was interrupted due to that witness \u2019s ill health .","The hearing continued on DATE and was then adjourned to DATE . It was further adjourned , however , on that date , as the respondents\u2019 expert could not attend due to a health problem .","The hearing was then listed for DATE . It continued on that date and then on DATE . The hearing was initially due to continue DATE but was instead adjourned to CARDINAL and DATE in order to allow the lawyer in CARDINAL of the applications to prepare his client \u2019s defence .","On DATE , however , the court cancelled the first session as one of the trial judges would be abroad . It further issued an order separating the applications ( see paragraph CARDINAL above ) and stated that separate decisions would be delivered .","On DATE the parties\u2019 lawyers addressed the court .","On DATE the court rejected the evidence given by the respondents\u2019 expert and , on the basis of the evidence of the expert it had appointed , ordered a reduction in the rent paid by the applicants . Costs were awarded in favour of the applicants .","On DATE the respondents lodged an appeal before ORG .","NORP By letter dated DATE the Registrar of the LOC of GPE informed ORG of ORG that the records of the proceedings would be transcribed and sent to ORG by DATE .","By a letter dated DATE ORG informed the appellants that their appeal had been entered in the register ( appeal no . DATE ) .","NORP By letter CARDINAL DATE the Registrar of the LOC of GPE sent the case file , the court records , the judgment and the list of exhibits to ORG .","The appeal was listed for a preliminary hearing on DATE . On that date directions were given for the submission of written outlines of submissions to be made at the appeal hearing .","These were filed on DATE .","On DATE the applicants informed the court that they had appointed a new lawyer .","On DATE the appeal was submitted to ORG but in the absence of an available date it was not set down for hearing .","On DATE the Chief Registrar of ORG informed the parties that the appeal had been set down for hearing on DATE . Following an exchange on the matters raised between the court and the parties the hearing was adjourned at the parties\u2019 request until DATE .","On DATE the parties addressed the court and judgment was reserved . The applicants\u2019 lawyer stated that he was in complete agreement with the first - instance judgment .","On DATE ORG upheld the appeal and set aside the ORG \u2019s decision . It ordered a retrial of the case . ORG found that the LAW had erred in its assessment of the evidence that had been put before it . In this connection , it noted that the LOC had failed to take into account the average rental rate of the shops in the area and relevant factors such as the age , condition and facilities of those shops when assessing the rental value of the shop in question . Secondly , it found substantial errors in the valuation made by the ORG \u2019s expert which included the failure to make the necessary adjustments when comparing different properties and to determine the advantages and disadvantages of the properties compared . The court considered that the valuation given by the ORG \u2019s expert had been ill - founded and unreliable and that therefore the ORG should not have relied on it . Similarly , the court found that the valuation of the respondents\u2019 expert ( the appellants at the appeal stage ) had been unsound . In this connection , it noted that this valuation had defined the area in question very narrowly and as a result had not taken into account other nearby shops which should have been considered for comparison purposes . ORG therefore concluded that overall no evidence had been put forward which would enable the determination of a fair rent in respect of the ORG shop .","Finally , ORG ordered that the costs of both the first instance and appeal proceedings be paid by the applicants ( the respondents at the appeal stage ) .","Following a request by ORG Limassol- GPE , ORG , in a letter dated DATE , gave directions for the retrial of the application .","On DATE the application was brought before a newly composed ORG and was listed for a directions hearing on DATE in view of the possibility of a friendly settlement .","On the latter date the application was fixed for hearing on DATE . On that date the respondents requested that they be given time to consider the court \u2019s proposals with regard to a settlement . With the applicants\u2019 agreement the application was set down for hearing on DATE . On the latter date the parties informed the court that they accepted its proposals concerning determination of the rent . The applicants\u2019 lawyer claimed his costs [ for the retrial ] and the respondents\u2019 lawyer claimed the costs of the first trial and appeal .","On DATE the court determined the rent as agreed and ordered that the respondents pay the retrial costs , as assessed by the Registrar and approved by the court , unless the parties reached a different agreement .","During the retrial proceedings , by letter dated DATE , the applicants\u2019 lawyer requested the Attorney - General to consider whether it would be possible for the State to pay the costs of the proceedings in view of the fact that the errors for which the case was sent back for retrial had not been committed by the applicants .","By letter dated CARDINAL DATE the Attorney - General replied that this was not possible since the proceedings in question concerned a trial between private parties and , further , that it was for the courts to take into account all relevant circumstances when determining the matter of costs .","Section CARDINAL of ORG Law CARDINAL ( Law no . CARDINAL\/CARDINAL , as amended ) provides as follows :","\u201c The costs of , and incident to , any civil proceedings , in any court , shall , unless otherwise provided by any law in force for the time being , or any subsidiary legislation , be in the discretion of the court and the court shall have full power to determine by whom and to what extent such costs shall be paid \u201d .","Order CARDINAL of LAW sets out the rules concerning costs . Rule CARDINAL of this Order provides as follows :","\u201c Subject to the provisions of any law or Rules , the costs of , and incident , to any proceeding shall be in the discretion of the ORG or Judge , who may authorise an executor , administrator or trustee who has not unreasonably instituted , or carried on , or resisted any proceeding , to have his costs paid out of a particular estate or fund . \u201d","Regulation CARDINAL ( a ) of ORG of DATE provides :","\u201c The award of costs is a matter in the discretionary power of the court . The outcome of the case is not the sole factor for the award of costs but all the circumstances of the case must be taken into account . \u201d","Section CARDINAL of the Rent Control Law CARDINAL\/CARDINAL ( as amended ) provides that the procedure before ORG is a summary procedure not bound by the rules of evidence ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-89362","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2008,"docname":"KETKO v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , Mr. Y. GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant owns a CARDINAL % share in ORG , a joint venture ( hereinafter the \u201c Company \u201d ) . The ORG was incorporated on DATE as a joint venture with a CARDINAL % share at all relevant times being owned by a NORP partner . The Company and its subsidiary were conducting a gas trading business .","The ORG also fell into the category of \u201c companies with foreign investments \u201d , within the meaning of LAW DATE ( the \u201c DATE LAW ) , until its repeal in DATE .","The DATE Act was adopted with a view to encouraging foreign investments and was applied to companies where a foreign partner had PERCENT share . This Act established preferential treatment for such companies , including , inter alia , DATE immunity from changes in the law governing foreign investments ( Section CARDINAL ) . This immunity was to be granted on the making of the relevant application and calculated from the date of its establishment .","On DATE ORG passed the Companies set up with ORG Act CARDINAL ( the \u201c LAW \u201d ) , which provided that companies with a foreign shareholding were subject to general tax , customs and currency regulations , and repealed LAW . LAW affected all joint ventures irrespective of when the foreign investment had been made .","In its judgment of DATE , ORG gave a binding interpretation of LAW , holding that it provided valid grounds for refusing new and withdrawing previously granted taxation privileges .","In DATE the Company instituted proceedings in ORG claiming immunity under LAW . On DATE the court found for the Company and declared that , until DATE , the Company was exempted from any new taxes , duties , changes in the method of calculation or payment of taxes introduced after CARDINAL September CARDINAL .","On DATE ORG , following the appeal of the customs authorities , quashed this decision and remitted the case . On DATE the ORG 's claim was declared inadmissible .","On DATE ORG , upon the supervisory complaint of its Deputy President , quashed the decisions of DATE and DATE , and upheld the judgment of DATE , thus reinstating the ORG 's immunity from any changes in tax and customs law .","On DATE ORG clarified its judgment of DATE upon the ORG 's request . The court specified that the ORG , as well as its subsidiaries , was immune from any changes in fiscal legislation , including that introduced by LAW . This ruling was upheld by ORG on DATE and by ORG on DATE . On DATE ORG rejected the request of the Head of ORG to reopen the proceedings due to the new circumstances .","On DATE ORG ( hereafter \u201c ORG \u201d ) refused to allow the ORG 's subsidiary free transit of a certain amount of gas across the NORP border . The ORG 's subsidiary together with the applicant and the ORG 's foreign shareholder challenged this decision before the courts .","On DATE the ORG of GPE allowed this claim and ordered ORG to allow the gas to be imported , referring in this respect to the DATE judgment .","On DATE ORG granted ORG 's appeal , quashed the judgment of DATE and rejected the claim as unfounded . The court indicated that LAW , as interpreted by ORG , gave sufficient grounds for annulling the taxation privileges enjoyed by the ORG and its subsidiary .","On DATE ORG rejected the cassation appeal against the judgment of ORG as unfounded .","Section CARDINAL of that Act provided that it was applicable to companies of any type or form as long as a foreign investor owned at least a PERCENT share in such a company .","According to LAW a \u201c company with foreign investments \u201d falling into the scope of this LAW could be granted , upon submission of the relevant application , immunity for a period of DATE from changes in special legislation to do with the regulation of foreign investments .","The Preamble specified that the LAW 's aim was to put companies with foreign shares in an equal position to those without foreign investments , thus protecting free competition and domestic industry .","Section CARDINAL of the Act declared that companies with foreign investments were subject to general tax , customs and currency regulations .","Section CARDINAL of the LAW repealed LAW .","According to Section CARDINAL , this LAW applied to all joint ventures irrespective of when the foreign investment was made .","Following a request from ORG , ORG gave an official interpretation of LAW . The court explained that this provision constituted adequate grounds for refusing new and withdrawing previously granted applications for those privileges regarding taxes , customs duties and currency controls ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-120068","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2013,"docname":"CASE OF MASKHADOVA AND OTHERS v. RUSSIA","importance":2,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient","judges":"Dmitry Dedov;Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turkovi\u0107","text":["The applicants were born in DATE , DATE and DATE , respectively , and live in GPE , GPE and GPE .","The first applicant is the widow of PERSON ( also spelled ORG ) PERSON . The second and third applicants are their children .","PERSON , born in DATE , was one of the military and political leaders of the NORP separatist movement during and after the armed conflict of DATE .","For some time after the elections held in GPE on DATE he was President of the so - called GPE .","In DATE NORP armed groups began a military incursion into PERSON .","On DATE a criminal investigation was initiated by the NORP authorities on suspicion of military revolt and sedition in this connection .","NORP On DATE PERSON acquired the status of accused in this case .","On DATE the investigator decided to detain him . Since the whereabouts of PERSON could not be established , the investigator placed his name on the national and international lists of wanted persons .","On an unspecified date the authorities also opened a criminal investigation into terrorist activity in LOC of GPE in DATE .","On DATE , the day of the terrorist attack on a school in the town of GPE , the authorities instituted criminal investigations in connection with this event on suspicion of hostage - taking , murder , illegal arms trafficking and terrorist acts .","On DATE , having collected various items of evidence indicating the involvement of PERSON in masterminding the attack , which left some CARDINAL people , including CARDINAL children dead , the investigator formally identified him as an accused .","On DATE PERSON name was again put on the national and international wanted lists .","The applicants alleged that repeated attempts on ORG life had taken place in DATE , DATE and DATE and that these attacks had been \u201c conducted by or with the connivance of ORG agents \u201d .","According to the applicants , on DATE ORG ( ORG \u0411\u0435\u0437\u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438 \u0420\u0424 DATE \u201c the ORG \u201d ) offered MONEY for information leading to his arrest .","It appears that prior to CARDINAL DATE PERSON lived in hiding as a fugitive in various unspecified locations in GPE .","On DATE TIME the ORG conducted a special operation aimed at tracking down and arresting members of unlawful military formations at FAC in ORG , a village in LOC of GPE .","According to the authorities , the operation resulted in the discovery of a concealed underground shelter and the arrest of CARDINAL individuals , including PERSON and PERSON , who were PERSON bodyguard and press officer , respectively .","The authorities also discovered the corpse of an \u201c unidentified person \u201d bearing traces of injuries . On DATE detained individuals identified the person as PERSON .","In TIME CARDINAL DATE investigator PERSON . from ORG in GPE ( \u0441\u043b\u0435\u0434\u043e\u0432\u0430\u0442\u0435\u043b\u044c \u0441\u043b\u0435\u0434\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0433\u043e \u043e\u0442\u0434\u0435\u043b\u0430 \u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u044f \u0424\u0421\u0411 \u0420\u043e\u0441\u0441\u0438\u0438 \u043f\u043e \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0435 ) arrived on the scene and , in the presence of CARDINAL witnesses and with the assistance of a military mining specialist , conducted an inspection of the house and grounds .","The resulting report , containing numerous colour photographs , described the property in detail , including the location of the house , the adjacent structures and the concealed underground shelter .","It further described the corpse in the following manner :","\u201c ... In the middle of the aforementioned concrete platform , under the canopy , was the corpse of an unidentified man , apparently resembling PERSON . The corpse was lying on its back with arms and legs spread wide . There were socks on the corpse \u2019s feet . The corpse was shoeless . The person was wearing dark - grey trousers heavily stained with dirt . The left trouser leg was rolled up . Grey pants with black vertical stripes were visible . The upper part of the body was naked , and no visible signs of injuries were detected . There were some remnants of rolled - up clothes ( blue T - shirt and dark - blue jacket ) on the right forearm and left wrist . The corpse \u2019s eyes were closed ; the person had a moustache and beard of medium length . There was an entry hole in the area of the right temple , bordered by dried blood of a dark - brown colour . There was dried blood on the left outside ear . ... \u201d","NORP The report also described various items which had been found at the scene , apparently piled up in the yard of the property . Among these items were a number of arms and ammunitions , including CARDINAL ORG automatic rifles , CARDINAL PERSON machine pistols , TIME semi - automatic pistol , CARDINAL grenades and an explosive belt . In addition , there were a few laptop computers and portable radio transceivers with accessories .","With regard to the concealed underground shelter , the report noted its location and mentioned that it was QUANTITY deep and was equipped with a metal ladder with CARDINAL steps . The floor of the shelter was covered with rubble due to the fact that the entrance had been broken down using mechanical force . No detailed inspection of the shelter was conducted because of the \u201c justified fear that the shelter may have been booby - trapped \u201d . The report contained CARDINAL photographs of the entrance to the shelter .","It appears that on the same date the corpse was transported to the military base in the village of GPE .","According to the applicants , on DATE the authorities blew up the house and its cellar .","The respondent Government submitted that the case file did not contain any information about the alleged destruction of the house in question on that date .","It appears that the circumstances of the death of PERSON were investigated by the authorities of ORG in the context of the criminal investigation in case no . CARDINAL ( the NORP school massacre , see paragraphs DATE above ) .","On DATE investigator PERSON from ORG ( \u0441\u043b\u0435\u0434\u043e\u0432\u0430\u0442\u0435\u043b\u044c NORP \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u044b \u0420\u0424 ) examined the corpse and other items found at the scene and decided that a number of expert examinations should be carried out . On DATE the corpse of ORG was identified by his bodyguard PERSON and PERSON , apparently CARDINAL of ORG relatives .","On DATE investigator PERSON conducted an examination of the corpse in the presence of CARDINAL witnesses and with the participation of Deputy Prosecutor General PERSON . , CARDINAL medical experts PERSON . and PERSON . , and prosecutor PERSON It appears that both video and photographic records of the examination were made . The report contained the following description of the injuries found on the corpse :","\u201c ... In the right temple area , QUANTITY above the right eyebrow and QUANTITY towards the outer edge of the right eye there is a round - shaped wound QUANTITY in diameter . On the edges of the wound are grazes CARDINAL and QUANTITY wide . The wound is gaping . There is an irregular oval - shaped bruise surrounding the wound measuring CARDINAL centimetres . ...","... In the left cheekbone area , QUANTITY towards the outside of the bridge and QUANTITY below the lower edge of the left eye socket there is a wound of an irregular star - like shape measuring between CARDINAL and QUANTITY . The wound has CARDINAL rays pointing at CARDINAL , CARDINAL , DATE , DATE , TIME , assuming that the body is placed in a straight vertical position . ...","... In both eye - sockets there are crimson - violet bruises measuring QUANTITY on the right side and QUANTITY on the left side . ...","... In the parietal region there is a wound of an irregular round shape with CARDINAL rays at CARDINAL , CARDINAL , DATE , DATE , DATE , and QUANTITY . The wound measures CARDINAL and QUANTITY . ...","... In the right scapular area along the central scapular line , in the area of the fifth intercostal space and QUANTITY from the soles of the feet , there is a round - shaped wound with its longitudinal axis pointing at TIME . The right edge has grazes of QUANTITY with a sloped wall . The opposing left edge has grazes of QUANTITY with a sapped wall , the wound is open ... \u201d","On DATE investigator PERSON ordered a forensic medical examination of the corpse , having put CARDINAL questions to the expert ( see the list of questions and answers below ) . On DATE CARDINAL p.m. a medical expert , ORG , carried out the examination of the body . The resulting report , dated DATE , \u2019s conclusions , together with the answers to the CARDINAL questions put by investigator PERSON","The forensic diagnosis was the following :","\u201c Firearm injury . Multiple ( CARDINAL ) gunshot perforating wounds to the head ( CARDINAL ) and CARDINAL blind multi - trauma penetrating wound to the chest and the upper extremity :","\u2013 on the head : CARDINAL perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal , left parietal and cervical bones and a multi - fragment fracture to the frontal bone , with damage to brain tissue , haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic , a perforating fracture to the big wing of the main bone on the left , a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head ;","\u2013 on the chest and the upper extremity : CARDINAL blind multiple wound to the chest perforating the pleural cavities , with a fracture of the seventh right rib and damage to the lungs , a double - sided buttonhole fracture to the main part of the seventh thoracic vertebra , damage to the soft tissue of the left CARDINAL of the sternum and the soft tissue of the back surface of the upper part of the left shoulder , with the presence of a bullet at the end of the wound tract .","Double haemothorax ( QUANTITY ) . \u201d","The report gave the following answers to the CARDINAL questions :","\u201c CARDINAL . Answer to question no . CARDINAL : \u2018 What are the injuries to the presented corpse , what is their location , what was the method used and from what distance were they inflicted?\u2019","ORG had CARDINAL gunshot wounds to the head , chest and the left upper extremity :","\u2013 on the head : CARDINAL perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal , left parietal and cervical bones and a multi - fragment fracture to the frontal bone , with damage to brain tissue , haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic , a perforating fracture to the big wing of the main bone on the left , a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head ;","\u2013 on the chest and the upper extremity : CARDINAL blind multiple wound to the chest perforating the pleural cavities , with a fracture of the seventh right rib and damage to the lungs , a double - sided buttonhole fracture to the main part of the seventh thoracic vertebra , damage to the soft tissue of the left CARDINAL of the sternum and the soft tissue of the back surface of the upper part of the left shoulder , with a bullet at the end of the wound tract .","No other injuries or marks have been found on the body of ORG .","The following proves that the wounds were inflicted by gunfire : the perforating and multiple character of the injuries ; the presence of the bullet at the end of the wound tract ... ; bleeding in a cylindrical pattern along the line of the wound tracts ; the oval shape and small size of the wounds ; the slightly irregular , tucked - in edges of the wounds ; the tissue damage in the centre of the wounds and the contusion collar on the edges of the wounds .","The gunshot entry wounds are situated :","\u2013 no . CARDINAL : in the left postotic area ;","\u2013 no . CARDINAL : CARDINAL and a QUANTITY towards the back and QUANTITY lower than wound no . CARDINAL ;","\u2013 no . CARDINAL : QUANTITY to the right of wound no . CARDINAL ;","\u2013 no . CARDINAL : in the left parietal area , QUANTITY to the left of the midline of the head ;","\u2013 no . CARDINAL : in the projection of the sixth intercostal space on the right , along the midline of the scapula .","The following features indicate that these are entry wounds : the oval shape , the relatively small size , the presence of damaged skin in the centre , the slightly irregular edges , the presence of a contusion collar on the edges and the circular haemorrhage in the subjacent tissues .","The exit wounds are situated :","\u2013 no . CARDINAL : on the front to the left ;","\u2013 no . CARDINAL : on the front to the right ;","\u2013 no . CARDINAL : in the left cheekbone area .","The following features indicate that these are exit wounds : the irregular star - like and slot - like shape of the wounds ; the irregular , ragged edges .","...","The entry wounds ( nos . CARDINAL - CARDINAL ) on the head were inflicted as a result of a burst of fire from a hand firearm , which could have been an ORG ( PERSON automatic ) or a PM ( PERSON ) pistol , as suggested by the following indications : ( a ) the presence of a few entry holes situated on the same body surface ; ( b ) the similar morphology of the entry wounds , which suggests that they were inflicted almost simultaneously , by the same type of arm and from the same or almost the same range . Entry wound no . CARDINAL on the back of the corpse of ORG could have been inflicted as the result of a burst of automatic fire or as the result of a single shot from a manual gun of the type described above .","Entry wound no . CARDINAL was inflicted as the result of a single shot from a gun . The diameter of the shell was no less than CARDINAL.CARDINAL cm , as confirmed by the size of the wound and the perforating fracture of the left parietal bone . Most probably the shell exited through the open mouth . ...","The shots which wounded ORG were not fired from close range ( \u0441 \u043d\u0435\u0431\u043b\u0438\u0437\u043a\u043e\u0439 \u0434\u0438\u0441\u0442\u0430\u043d\u0446\u0438\u0438 ) , a finding confirmed by the absence in the area of the entry gunshot wounds of any traces of impact from the by - products of shooting ( gunpowder gases , soot , gunpowder particles , metal particles ) . The way in which the injuries are formed ... suggests that they were probably inflicted from a distance of QUANTITY .","All injuries were inflicted shortly before death , as confirmed by :","\u2013 the character of the wounds \u2013 perforating wounds with massive destruction of the brain tissue as well as damage to the internal organs in the chest ;","\u2013 slight haemorrhaging coupled with pronounced bone fractures ;","\u2013 the lack of indication of healing of the injuries .","NORP Answer to question no . CARDINAL : \u2018 In what sequence were the injuries inflicted?\u2019","On the head the first to be inflicted was wound no . CARDINAL , then wound no . CARDINAL and wound no . CARDINAL , then wound no . CARDINAL ; this is confirmed by the smaller space between wounds no . CARDINAL and no . CARDINAL in comparison to the space between wounds no . CARDINAL and no . CARDINAL and the location of wound no . CARDINAL .","It is impossible to answer the question concerning the sequence in which the wounds on the head and the wound on the chest were inflicted because of the absence of objective signs indicating the sequence .","NORP Answer to questions nos . CARDINAL , DATE , DATE and CARDINAL : \u2018 Which injury exactly was the cause of death?\u2019 , \u2018 Did death occur immediately or within a certain period of time?\u2019 , \u2018 Would [ ORG ] have been capable of performing any actions after receiving the injuries?\u2019 , \u2018 What was the cause of death?\u2019","The cause of death of ORG was bullet injuries to the head with damage to ( destruction of ) the cerebral hemispheres and membranes .","The death of ORG occurred immediately on infliction of the gunshot wounds to the head ( in a period of time ranging from TIME to TIME ) . This is confirmed by :","\u2013 the character of the injuries ( perforating wounds with massive destruction of brain tissue ) ;","\u2013 the slight haemorrhaging coupled with the presence of pronounced injuries to the bones ;","\u2013 the absence of indications of healing of the said injuries .","After infliction of the said injuries ORG could have performed actions ( for a period ranging from TIME to TIME ) during the stage of compensatory reaction of the organism .","NORP Answer to question no . CARDINAL : \u2018 What was the body \u2019s position when the injuries were being inflicted?\u2019","The direction of the wound tracts in the head was ( on the assumption that the body is in a straight vertical position ) : ( a ) from right to left ; ( b ) from bottom to top as regards wound tracts nos . CARDINAL - CARDINAL , and from top to bottom as regards channel no . CARDINAL ; ( c ) slightly from back to front .","The direction of the wound tract in the area of the chest was ( on the assumption that the body is in a straight vertical position ) : ( a ) from left to right ; ( b ) slightly from bottom to top ; ( c ) slightly from back to front .","Hence , during the shooting the perpetrator \u2019s weapon was situated behind , to the right and slightly below the level of the wounds to the head and the chest of ORG , his head being turned to the left .","NORP Answer to question no . CARDINAL : \u2018 Was the corpse \u2019s position changed?\u2019","The corpse \u2019s position could have been changed as a result of its retrieval , inspection and transport .","Answer to question no . CARDINAL : \u2018 Are there any signs indicating the possibility that the injuries were inflicted by the victim himself?\u2019","None of the injuries found on ORG could have been self - inflicted . This is confirmed by the range from which the shots were fired , the location of the entry gunshot wounds in places inaccessible to the individual himself and the direction of the wound tracts .","NORP Answer to question no . CARDINAL : \u2018 What is the victim \u2019s blood group?\u2019","Report no . CARDINAL on the forensic biological examination shows that ORG belonged to blood group A\u03b2 ( II ) .","NORP Answer to question no . CARDINAL : \u2018 Had the victim consumed alcohol or narcotic substances shortly before death and in what quantities?\u2019","During forensic chemical examination of the biological samples taken from the corpse of ORG , no ethyl alcohol or narcotic substances were detected .","Answer to question no . CARDINAL : \u2018 Did the victim take any food shortly prior to death and , if so , what did he eat?\u2019","ORG did not consume any food prior to death , as evidenced by the lack of food in the stomach .","Answer to question no . CARDINAL : \u2018 How long ago did death occur?\u2019","The timing of death of ORG does not contradict the timing indicated in the order [ of DATE ] , namely CARDINAL DATE .","Answer to question no . CARDINAL : \u2018 Is there a causal link between the injuries received and death ? \u201d","There is a direct causal link between the injuries received by ORG in the form of gunshot wounds to the head and his death . \u201d","On DATE the investigator ordered a forensic medical examination of samples of the corpse \u2019s blood , muscle tissue and nail plate and samples taken from PERSON CARDINAL nephews once removed . The expert , PERSON . , was asked to establish whether the body in question was that of PERSON .","On DATE PERSON . received the order of DATE and on the same date started the examination . The expert finalised the examination on DATE . The resulting report was completed on CARDINAL DATE and contained a detailed description of the scientific methods used . The expert \u2019s conclusion was that a combination of genetic features found in the samples taken from the corpse and from the dead man \u2019s nephews confirmed the blood relationship between them with a probability of PERCENT .","NORP On DATE the investigator issued a decision recapitulating the events of DATE and the nature of the charges against ORG , and noted that the investigation had collected evidence of the latter \u2019s involvement in masterminding the attack . The decision went on to state that on DATE the authorities had found the body of an unidentified man who was later identified as ORG . The decision then concluded that the criminal case against him should be closed owing to his death .","On an unspecified date CARDINAL the investigator ordered a ballistic examination of the bullet found in the corpse and of the CARDINAL PERSON pistols and the PM pistol , found at the scene on DATE ( see paragraph CARDINAL above ) . An expert was requested to identify the gun which had fired the bullet in question . As a result of this examination , the expert concluded that the bullet had been fired from the PM pistol . It appears , however , that the report contained contradictions concerning the methods of comparative examination , and on DATE the investigator ordered a fresh report .","DATE and DATE ballistics experts NORP and PERSON . carried out a fresh examination of the bullet and the guns . They also came to the conclusion that the bullet had been fired from the PM pistol .","The case file materials submitted by the Government contain records of interviews with CARDINAL persons arrested on DATE and , in particular , PERSON , PERSON and PERSON . In the case of PERSON , the authorities also carried out a psychiatric examination .","The relevant parts of the interview records and the psychiatric report are reproduced in chronological order .","On DATE between CARDINAL and TIME an investigator from ORG conducted an interview with NORP PERSON , who had the status of suspect in criminal case no . CARDINAL\/CARDINAL . The interview was conducted in the presence of his lawyer , PERSON . The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal investigations .","During the interview PERSON explained that on CARDINAL or DATE he had been asked by his cousin to shelter PERSON in his house in the village of ORG . The suspect described the circumstances of the arrival of PERSON , his stay in the house and the cellar and the latter \u2019s subsequent meeting with PERSON ( a wellknown militant NORP and CARDINAL of the leaders of NORP separatism ) , who reportedly died in DATE on CARDINAL or DATE .","As regards the events of DATE , PERSON gave the following statement :","\u201c ... On DATE at TIME I was sitting with my wife and daughter in the kitchen when armed men entered by the yard and started shouting : \u2018 Come out with raised hands CARDINAL by ORG . My wife and daughter and I came out and they asked me whether there were any strangers in the house . I told them that my cousin PERSON was there , whereupon he came out . Then I was asked whether the building had any cellars , and I showed them the cellar situated under the new house , which is accessed through the new house . They then started a search and in the old house they found the entrance to the cellar in which PERSON , PERSON and PERSON were staying . The servicemen blew up the entrance to the cellar and , as a result , the entrance became obstructed . They then started digging underneath and one of them shouted : \u2018 I see a corpse!\u2019 . They started shouting through the hole they had made to see whether there was anyone alive in there and some time later I saw them taking PERSON and PERSON out of the old house . \u201d","On DATE between CARDINAL and TIME an investigator from ORG , in the presence of the lawyer PERSON , interviewed Viskhan PERSON , who had the status of suspect in criminal case no . CARDINAL .","He was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily .","PERSON explained that he was PERSON nephew and had also been his personal bodyguard and assistant . He described various episodes from their work together .","He also stated as follows :","\u201c On DATE at TIME I was with my uncle PERSON and PERSON in the bunker under the private house situated in the village of ORG ; I can not remember the exact address . At that moment the sound of blows rang out . Then there was an explosion near the cellar \u2019s hatch leading to the bunker . PERSON took his PERSON pistol and fired a shot at his head . After that moment I can hardly remember what happened . I only recall that the servicemen dragged me and PERSON out of the cellar . I would like to clarify that PERSON , PERSON and I had lived in the house in question in the village of ORG since DATE . Before that , PERSON and I had been living in the forest near the mountain village of PERSON in GPE of GPE . \u201d","On DATE between CARDINAL and TIME an investigator from ORG interviewed PERSON , who had the status of suspect in criminal case no . GPE , in the presence of the lawyer PERSON . PERSON was suspected of having been a member of the armed group and of being in possession of firearms . The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily .","It appears that the suspect had been questioned previously on CARDINAL occasion , as the record stated that it was an \u201c additional interview \u201d and that he had \u201c fully endorsed his earlier statements \u201d .","PERSON explained that he had been PERSON political assistant , and described various episodes from their work together .","As regards the events of DATE , PERSON gave the following statement :","\u201c On DATE ORG and Viskhan Khadzhimuradov and I were in the bunker under the house of PERSON . At TIME we heard heavy footsteps on the ground above and thought that there were many people up there . We switched the light off . After TIME the entrance was discovered , as there was a glimmer of light coming through the cover blocking access to the bunker . In TIME a few shots were fired at the cover from the outside . At this point I was on the floor ( at the place marked \u2018 C\u2019 on the sketch map I drew earlier ) . ORG was on the trestle bed ( at the place marked \u2018 PERSON on the map ) . PERSON was on the trestle bed facing ORG ( at the place marked \u2018 B\u2019 on the map ) . After the shots were fired I moved to the trestle bed and sat near PERSON ( at the place marked \u2018 CARDINAL\u2019 on the map ) . At that point I had in my right hand my ORG - Stechkin pistol which was at CARDINAL - cock and was not loaded , although it had a cartridge full of bullets . ORG stayed where he was and held his ORG - Stechkin gun . I do n\u2019t know whether it was loaded with bullets . At that moment ORG said , in particular , \u2018 While I am alive , the enemy wo n\u2019t touch GPE , so I understood that he wanted to commit suicide . Also , there was an explosive device next to him , for personal self - destruction , which he did not use so as not to hurt me and PERSON ORG . Then PERSON asked ORG , in particular \u2018 What are we to do[?]\u2019 to which the latter responded \u2018 You should not do it\u2019 , meaning that we should not kill ourselves . Then there was an explosion , as a result of which I lost consciousness . When I came round I was lying on the floor ( at the place marked \u2018 CARDINAL\u2019 on the map ) . There was dust in the bunker and nothing could be seen . There was no gun in my hand at that moment . I called PERSON ORG and asked him , in particular : \u2018 How is PERSON to which he responded in NORP : \u2018 He is no more\u2019 . I moved to the place where I had been sitting ( at the place marked \u2018 CARDINAL\u2019 on the sketch ) . The body of ORG was in the same place as before and was obstructed by a foam - rubber mattress , but I could not see it . Then ... I remember the fumes started to appear and PERSON and I started choking . I shouted in the direction of the passage \u2018 There are people alive!\u2019 and started climbing upwards , with PERSON ORG following . There were people in military uniform upstairs who escorted me and PERSON to the yard . \u201d","NORP In response to the investigator \u2019s question whether the suspect had heard any shots being fired inside the bunker , the suspect replied as follows :","\u201c I myself did not shoot and did not see or hear ORG or PERSON shooting while in the bunker . \u201d","Responding to the investigator \u2019s question concerning the cause of death of PERSON , the suspect stated as follows :","\u201c I think that ORG shot himself with his ORG - Stechkin pistol . But I do n\u2019t know how this actually happened , as I lost consciousness after the explosion . \u201d","On DATE between CARDINAL and TIME an investigator from ORG again interviewed PERSON , this time in the presence of the lawyer PERSON .","The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily .","PERSON explained that he was PERSON nephew and had also been his personal bodyguard and assistant . He described various episodes from their work together .","As regards the events of DATE , the suspect made the following statement :","\u201c On DATE at TIME , PERSON , PERSON and I were in the cellar . At that moment , we heard some knocks and understood that someone was trying to break down the door leading to the cellar . In response , PERSON , using his right hand , put the pistol to the temple area of his head . At that moment there was an explosion . At the moment of the explosion PERSON was kneeling in front of me , facing me , and PERSON was sitting QUANTITY to the left . As result of the explosion , I lost consciousness . After some time , TIME as I understood , I started gradually to come round . I saw that PERSON head was lying on my right leg , I felt warmth and realised that the blood was oozing out of my uncle \u2019s wounded head down my right leg . Then PERSON and I started shouting that we were coming out . We came out and the NORP soldiers told me to go downstairs to the cellar and tie PERSON chest and legs so that it would be more comfortable to lift him up from the cellar . I carried out the instruction , after which PERSON and I were arrested by the NORP soldiers . I would like to explain that at the moment when the NORP soldiers were breaking down the doors leading to the cellar , PERSON told me and PERSON : \u2018 If I am still alive , shoot me in the heart\u2019 . \u201d","During the interview which took place on DATE between CARDINAL and TIME , V.U. PERSON gave the following statement :","\u201c I wish to amend my previous statements . According to my previous statements , on DATE at TIME , the NORP servicemen started breaking down the door leading to the cellar where I was staying with my uncle , PERSON , and my uncle \u2019s assistant , PERSON . We were in the cellar , under the CARDINAL - storey private house situated in the village of ORG in GPE . After we heard the knocks in the cellar , PERSON told me and PERSON : \u2018 Be prepared ! Do n\u2019t think about yourselves , think about me ! If I am still alive , shoot me in the heart!\u2019 After hearing these words I cocked my PM pistol . At that moment PERSON was sitting in front of me , at a distance of QUANTITY ; Vakhid was sitting near me , to the left . Then the explosion happened . I felt bad , my head felt like it was being squeezed . At that moment PERSON fell on me so that his head was on my right leg . At that very second , without taking aim , I fired CARDINAL shots in a row at PERSON . I do n\u2019t know where the bullets went . Then in TIME I lost consciousness . Afterwards I came round and along with PERSON surrendered to the NORP fighters . I would like to clarify that I took PERSON words as an order ; according to NORP custom , I can not disobey and fail to execute an order given by PERSON . \u201d","On DATE between CARDINAL and TIME an investigator from ORG interviewed PERSON , who by then had the status of accused . The interview took place in the presence of the lawyer PERSON . The record noted that PERSON was giving evidence in the case voluntarily .","The accused described his relationship with PERSON as well as various instances of collaboration between them , and meetings between PERSON and PERSON .","As regards the events of DATE PERSON gave the following statement :","\u201c Around DATE after the departure of PERSON , on DATE , ORG , PERSON and I were in the cellar . PERSON NORP was in the house . We were all asleep , and were woken up because we heard some people walking in the yard , talking and looking for an entrance to the cellar . Then they started knocking on the hatch covering the entrance to the cellar . At that moment I was sitting on the bed , with ORG sitting in front of me and PERSON sitting beside him on the mattress . ORG told me and PERSON that they were coming after him , but that he would not surrender and that if he remained alive I should shoot him in the heart . After saying these words , he put a gun to his right temple . I held my PM pistol in my right hand , it was loaded and cocked , and at that moment the explosion happened . I was thrown back by the blast , I struck my head against the wall and lost consciousness . Some time later I came round , my head was aching badly , as if it were being squeezed . I could hardly see anything , there was a mist in my eyes , I had no idea what was going on at that moment . At the moment of the explosion I could hear the shots but I can not say who was shooting and where . I can not exclude the possibility that at the moment of the explosion , when I was thrown back , my pistol might have gone off , but I can not say what direction the shot went in . After the explosion when I came round I felt that someone was lying on my right leg , then it occurred to me that it was ORG and that his head was bleeding . Then PERSON and I started shouting to the people above that we were coming out . PERSON was the first to come out of the cellar . I followed straight behind , then went back into the cellar again and tied up the body of ORG so that it could be taken out of the cellar . \u201d","On DATE the investigator ordered a psychiatric expert examination of PERSON , in view of the seriousness of the charges against him and the cerebrocranial injury he had received on DATE . The investigator put the following questions to the board , consisting of CARDINAL experts in psychiatry and psychology , Doctors S. , T. , Kh . and B. :","NORP Does PERSON display any indications of increased propensity towards exaggeration of the events he describes ?","NORP Does PERSON display any indications of increased suggestibility and submissiveness ?","NORP Did PERSON , or does he , suffer from a mental illness and , if so , which one ?","If so , how long has he been suffering from the illness and is it temporary or permanent ?","Is he suffering from any temporary mental disorder or the presence of a particular mental condition which could have influenced his proper perception of the events which took place on DATE ?","If so , what is the nature of this temporary disorder and would V.U. ORG have been aware of his actions and able to control them ?","Would he have been aware of his actions and able to control them DATE ?","What is the mental state of V.U. PERSON at present and is he aware of his actions and capable of controlling them ?","NORP Is PERSON in need of medical treatment ? \u201d","The board of experts was given access to the evidence in criminal case no . CARDINAL and also examined the accused in person .","DATE . The examination apparently took place on DATE .","CARDINAL .","\u201c ... On DATE , during the investigation of the present criminal case , in the course of carrying out measures aimed at detaining persons suspected of having organised and carried out illegal acts in school no . CARDINAL , V.U. PERSON was arrested . Immediately before his arrest there was an explosion at the entrance to the cellar during which , as made clear by the interview records , he lost consciousness for an indefinite period of time . During the interview he gave evidence to the effect that he was the grandson of the sister of ORG , and that since DATE he had been constantly in his company . He was in charge of protecting ORG , supervised the cooking and kept an eye on the state of his wardrobe and firearms . Since DATE they had been living in the village of ORG . For DATE they had been hiding in the cellar of the house . On DATE at TIME they were in the cellar with ORG and his advisor PERSON Murdashev . Having heard the talk and commotion in the yard they realised that they had been located . ORG told them that he would not give in alive and that if he should remain alive , PERSON would have to shoot him in the heart . After these words , he put a cocked pistol to his temple . At that moment the explosion occurred and PERSON struck his head against the wall and lost consciousness . He had difficulty remembering what happened next . ... \u201d","NORP The report then summarised various statements that the accused had given earlier in connection with the events following the explosion :","\u201c At CARDINAL of the interviews he stated that ORG had shot himself in the head . He did not remember clearly the events which took place after that moment ; the servicemen had dragged him and PERSON out of the cellar ( CARDINAL ) .","Subsequently he gave contradictory statements . Hence , during the interview dated CARDINAL he stated that \u2018 having gradually come round\u2019 , he had seen ORG \u2019s head on his leg , felt the warmth and realised that blood was spilling out of his uncle \u2019s injured head .","During the interview of CARDINAL he stated that when the explosion occurred his head felt as if it were being squeezed . ORG had fallen on him and \u2018 at that moment , without taking aim\u2019 , he had fired CARDINAL consecutive shots , after which he lost consciousness .","At the interview on PERSON he confirmed his previous statements to the effect that ORG , before the explosion in the cellar , had told him to shoot him in the heart if he should remain alive . At the same time ORG himself had put a pistol to his temple . The accused had held his cocked gun in his hand . When the explosion occurred , he was thrown back by the blast , struck his head against the wall and lost consciousness . When he came round some time later , his head was aching badly as if it were being squeezed and he could hardly see anything . His mind was in a \u2018 fog\u2019 , and at that moment he could not perceive the events around him . At the moment of the explosion he heard the shots but could not say who was shooting and where . He could not rule out that his gun might have gone off when the blast threw him back , but could not say what direction the shots went in . When he came round , he felt that someone was lying on his leg . Later he realised that it was ORG , whose head was bleeding . After that he and PERSON started shouting upstairs that they were coming out . PERSON was the first to come out , followed by him . On the orders of the NORP soldiers he returned to the cellar , where he tied up the body of ORG so that it could be taken out ( data from the interview record of PERSON ) . \u201d","The board of experts examined the accused \u2019s physical and mental condition and talked to him about his memories of DATE . The report described the perception of the events by the accused immediately after the explosion in the following manner :","\u201c As regards his condition immediately following the explosion in the cellar [ the accused ] speaks vaguely and inconsistently , saying that he has trouble remembering that period of time . He remembers TIME of the explosion , seeing a flame and hearing shots , after which he struck his head against the wall and lost consciousness , \u2018 blacking out\u2019 . When he regained consciousness he was unable to hear , felt like vomiting and suffered from dizziness . His head felt like it was being squeezed , he could hear a ringing in his head , a humming noise . There was a \u2018 mist\u2019 before his eyes , and everything was fading . He could not understand what had happened . He felt that someone was lying on his leg , something warm was leaking . He does not remember how exactly he took the decision to come out of the cellar , he only heard the voice of PERSON calling \u2018 Let us come out!\u2019 . He vaguely remembers crawling up through the trapdoor . He can not say how much time passed from the moment of the explosion until he came out : \u2018 Maybe an hour , maybe half an hour\u2019 . \u201d","The board of experts came to the following conclusions as regards the state of mind of ORG before DATE :","\u201c ... the person","These are the conclusions of the experts as regards the psychological condition of the accused on DATE :","\u201c On DATE V.U. PERSON received a closed craniocerebral injury ( brain contusion ) , which was accompanied by loss of consciousness and later manifested itself in acute loss of hearing , with symptoms affecting the entire brain ( severe headache , vertigo , nausea , ringing and buzzing in the head ) , the aforementioned state of being stunned and , as a result , distorted perception of the surrounding circumstances ( \u2018 could hardly see\u2019 , \u2018 there was a mist before [ his ] eyes\u2019 , \u2018 fading\u2019 , \u2018 could not understand what had ORG , \u2018 could not understand anything about what was happening\u2019 DATE extracts from the interview records and the clinical consultation with PERSON ) . This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate posttraumatic cerebral asthenia . The said disorders deprived PERSON of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on DATE . No indication exists for compulsory medical treatment . \u201d","On DATE CARDINAL an investigator from ORG again interviewed PERSON , who by then had the status of accused in criminal case no . GPE . The interview took place in the presence of the lawyer NORP GPE .","The accused recounted various episodes from his work with PERSON .","DATE . As regards the events of DATE PERSON stated as follows :","\u201c DATE before we were found , information reached us that PERSON \u2019s nephew was being looked for . Allegedly the military authorities were looking for him . Out of fear that he would be looked for in PERSON \u2019s house , ORG ordered us to stay in the cellar during the daytime . We kept awake during the night , and after TIME prayer we entered the cellar and slept . Even in the cellar ORG worked on the computer . ORG and PERSON slept on the couch . I slept on the mattress on the floor . The size of the cellar was QUANTITY by QUANTITY The walls were made of concrete and brick , the floor was made of concrete , and there was electric wiring in the cellar . We lived a monotonous life . During those DATE GPE started living in GPE \u2019s house . On DATE CARDINAL of us went down to the cellar and went to sleep . We woke up because of the noise upstairs . It was clear that people were moving upstairs . I think I looked at my watch , it was TIME . The entrance to the cellar could be locked by a wooden hatch , there was linoleum on it ... which could be covered by a carpet . TIME we were locked into the cellar by GPE and GPE . If it was necessary we could knock and they would open it for us . It happened only once . Before that our knocks could not be heard . ORG took his weapon . He had previously mentioned that he would not surrender . On DATE he literally said that \u2018 the enemy would not touch him while he was alive\u2019 . The light in the cellar was switched on . ORG was sleeping in his sleeping bag . He started looking for his explosive belt . ORG himself asked PERSON where his explosive device was . Then it became apparent that our location had been discovered ; a gap appeared in the hatch . ORG was holding his gun in his hand . PERSON asked him what we were supposed to do . ORG replied that we should not do it . Some time after that shots rang out ; they seemed to be coming from the hatch . The size of the hatch was QUANTITY by QUANTITY . I moved sideways , away from the hatch . After that at some point I lost consciousness , and when I came round I was on the floor . Before losing consciousness I had taken out my gun and held it in front of me near the belt . After I came round I discovered that everything was full of smoke . My first thought was that ORG had detonated the explosive device . When I came round I was wondering why I was not injured . I called to PERSON and asked him what had happened to PERSON . He replied that PERSON was no more , so I understood that he was already dead . Then I went upstairs and PERSON came out following me . I saw ORG lying covered with a mattress . After we came out I did not speak to PERSON . Some time after that they took ORG out of the cellar . As soon as I got upstairs I realised that the explosion had occurred when they tried to open up the hatch . \u201d","On DATE the head of the civil registry of LOC of GPE , issued a death certificate in respect of PERSON , born on DATE . The certificate stated that death had occurred in the village of GPE on DATE .","On DATE the investigator examined the evidence in criminal case no . CARDINAL . He noted that PERSON had been sought on charges relating to his alleged involvement in the terrorist attack on the school in the town of GPE on DATE . The decision further stated :","\u201c In the course of carrying out special measures aimed at discovering the location of ORG it was established that he had been hiding in the property belonging to PERSON ...","On DATE in the cellar of the said property the corpse of ORG , bearing traces of multiple gunshot injuries , was found . At the same time PERSON and V.U. PERSON , who had been in the same cellar , as well as PERSON and PERSON , who were in charge of outside protection , were arrested and found to be in possession of ammunition and firearms .","According to the conclusions of forensic medical report no . CARDINAL-e of DATE , the death of ORG occurred as a result of gunshot wounds to the head with damage ( destruction ) to the brain hemispheres and its membranes . The victim had :","\u2013 CARDINAL perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal , left parietal and cervical bones and a multifragment fracture to the frontal bone , with damage to brain tissue , haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic , a perforating fracture to the big wing of the main bone on the left , a fracture to the left cheekbone and haemorrhaging in the soft tissue of the head ;","\u2013 CARDINAL blind multiple wound to the chest perforating the pleural cavities , with a fracture of the seventh right rib and damage to the lungs , a double - sided buttonhole fracture to the main part of the seventh thoracic vertebra and damage to the soft tissue of the left CARDINAL of the sternum and to the soft tissue on the back of the upper part of the left shoulder , with a bullet at the end of the wound tract .","The entry gunshot wounds were situated in the occipitoparietal areas and in the projection of the sixth intercostal space on the right , along the middle scapular line . The entry wounds on the head were inflicted within moments of each other , not from close range , from the same type of weapon , and from the same or almost the same range .","At the moment of shooting the weapon was situated behind the victim , towards the right side , slightly below the level of the wounds to the head and chest of ORG , the victim \u2019s head having been turned to the left . The resulting injuries could not have been self - inflicted .","On DATE during examination of the place where the corpse was discovered and the persons located in the cellar of the house were arrested ... an ORG pistol no . VP CARDINAL I and an ORG pistol no . GN DATE I , belonging to ORG and PERSON PERSON , and a PM pistol no . MA CARDINAL , belonging to V.U. PERSON , were recovered from ORG and V.U. PERSON .","According to the [ ballistics ] examination of the recovered weapon and the bullet , as detailed in the [ ballistics ] experts\u2019 report no . PERSON dated DATE , the bullet removed from the corpse of ORG was fired from a PERSON ( PM ) pistol no . MA CARDINAL , that is from the pistol belonging to PERSON .","In the course of the examination which was carried out , it was established that on DATE , in the course of the search of the property of PERSON , the latter categorically denied the presence of any strangers on the property and the presence of other cellar rooms equipped for a long - term stay in which fugitives from the lawenforcement bodies could be located . In the course of measures aimed at examining the ... location due to be demolished , a secret passageway was located leading to the underground shelter , with a hatch blocking access from the outside . With a view to enabling the underground bunker to be examined unhindered , an explosive device of small capacity was used , providing free access to the cellar . PERSON GPE , PERSON and the corpse of ORG were then located .","PERSON , when questioned concerning the circumstances of what happened , stated that he , ORG and PERSON had been hiding for a long time in an underground bunker situated in Mr PERSON \u2019s house . On DATE he , ORG and ORG had been in the cellar . They were awoken by the sound of people talking while looking for the entrance to the cellar . At that moment , PERSON was sitting on the couch and ORG , who said that they were coming after him but that he would not surrender alive , was sitting in front of him . ORG then put a gun to his temple , having said that if he was still alive , then PERSON , who was holding a cocked gun in his right hand , should shoot him in the heart . After the explosion occurred [ PERSON ] was thrown back and struck his head against the wall . For some time he lost consciousness . He did not know what happened next : his head was aching and he felt as if there was a mist in his head . At the moment of the explosion he heard shots , but could not say who was shooting or from where : he thought the shots could have been from his gun . Then he discovered that ORG , whose head was bleeding , was lying on his right leg .","According to the statements of the accused PERSON , on DATE at TIME , after ORG realised that their shelter had been discovered , he said that \u2018 while he was alive the enemy would not touch him\u2019 . [ PERSON ] understood this to mean that ORG wanted to commit suicide . PERSON asked what he should do . ORG replied : \u2018 You should not kill yourself\u2019 . Then the explosion occurred and he , PERSON , lost consciousness . When he came round , he discovered that he was on the floor . He asked PERSON about ORG and heard that ORG was no more .","According to the report of psychiatric examination ... no . CARDINAL dated DATE V.U. PERSON received a closed craniocerebral injury ( brain contusion ) during the explosion , accompanied by a loss of consciousness and later manifesting itself in an acute loss of hearing , with symptoms affecting the entire brain ( severe headache , vertigo , nausea , ringing and buzzing in the head ) , the state of being stunned , as referred to , and , as a result , distorted perception of the surrounding circumstances . This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate post - traumatic cerebral asthenia . The said disorders deprived PERSON of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on DATE .","Following analysis of the circumstances established during the investigation \u2013 the statements of PERSON and PERSON and the conclusions of the [ ballistics ] expert \u2019s examination indicating that the bullet extracted from the corpse of ORG had been fired from the pistol of PERSON \u2013 it can be stated that the death of ORG occurred as a result of shots fired by GPE ORG . The data received in the course of the [ psychiatric ] examination of V.U. PERSON confirms that PERSON did not kill ORG intentionally . The fact that he was suffering from a specific condition caused by the explosion , which prevented him from accurately perceiving his environment , being aware of the nature of his actions and controlling them , indicates that PERSON , when he killed ORG , was in a state of insanity [ \u0441\u043e\u0441\u0442\u043e\u044f\u043d\u0438\u0435 \u043d\u0435\u0432\u043c\u0435\u043d\u044f\u0435\u043c\u043e\u0441\u0442\u0438 ] . Accordingly , his actions do not constitute corpus delicti as defined in part CARDINAL of Article CARDINAL of LAW . \u201d","The investigator accordingly concluded that there were grounds for a decision not to initiate a criminal prosecution against PERSON for the killing of PERSON .","NORP The decision of DATE did not state whether the family or any of the relatives of PERSON were to be notified .","Since PERSON family had previously gone into hiding and were living abroad , it is also unclear whether the authorities were in a position to notify them .","By letters of CARDINAL DATE , CARDINAL DATE and various dates in DATE , the applicants requested , among other things , that they be granted access to the medical documents stating the cause of their relative \u2019s death , that they be provided with copies of the decisions relating to the procedural status of the deceased in the criminal proceedings against him and that a criminal case be opened in connection with his death .","On DATE ORG , head of department in ORG with responsibility for LOC , responding to the ORG request to see the medical documents showing the cause of death of PERSON , stated that the possibility existed in principle but that there were no grounds for providing the applicants with a copy of the relevant medical documents at that time .","In another letter dated DATE ORG further stated as follows in response to the request to initiate criminal proceedings in connection with the death of PERSON :","\u201c ... It has been established that during the investigation of case no . CARDINAL into the terrorist act committed in the town of GPE in GPE , the circumstances surrounding the death of ORG were examined . The evidence in the criminal case indicates that the death of ORG occurred as a result of the use of firearms by PERSON , who happened to be in the same secret shelter .","According to the conclusions of the psychological \/ psychiatric examination , ... at the time of the explosion V.U. PERSON sustained a closed craniocerebral injury coupled with loss of consciousness , general cerebral symptoms ( severe headache , dizziness , nausea , ringing and buzzing in the head ) , pronounced obnubilation and , as a consequence , distorted perception of surrounding events . This is confirmed by the fragmentary nature of his memories and the incoherent character of his statements concerning that period of time and the presence of symptoms of mild post - traumatic cerebral asthenia .","In view of the above , a decision was taken not to initiate criminal proceedings in respect of PERSON for the murder of ORG , in accordance with LAW .","Under LAW , a copy of the decision not to initiate criminal proceedings is sent to an applicant . Since the prosecution never received any crime report [ from anyone in this connection ] , no copy of [ the decision ] was sent to the [ widow of PERSON ] . At present , the prosecution has no reason to furnish a copy of [ the decision ] to anyone .","A decision to recognise an individual as a victim in connection with the damage sustained ... is taken only within the framework of criminal proceedings already initiated . Since it was decided not to initiate criminal proceedings in respect of V.U. LOC in relation to the murder of ORG , there are no legal grounds for recognising you as victims . \u201d","As regards the applicants\u2019 request that they be given copies of documents relating to PERSON and his procedural status as an accused in the criminal case concerning the terrorist act committed in the town of GPE in GPE , the same prosecutor noted as follows :","\u201c ... Under LAW , a copy of the decision to charge an individual [ with commission of a crime ] is served by an investigator on the accused , his counsel and the competent prosecutor . The [ relevant ] law does not list any other person as having the right to receive a copy of [ that decision ] .","LAW contains an exhaustive list of persons who have the right to receive copies of decisions on the application of a preventive measure ( detention ) in respect of the suspect or the accused .","Under ... Decree no . CARDINAL of the Government of GPE dated DATE , the official in charge of the investigation must notify the relatives of a person [ whose criminal prosecution for terrorist activity was discontinued because of his or her death ] of the location of the civil registry office that is to issue them with the death certificate . [ The official also has discretion as to whether to provide the relatives with a copy of the autopsy report ] . At present , there are no grounds for providing the relatives with a copy of the medical forensic report on the corpse of ORG .","[ In view of the above , the applicant \u2019s requests are rejected . ] \u201d","It does not appear that the applicants were provided with a copy of the decision of DATE not to initiate criminal proceedings in respect of the death of PERSON .","The Government produced information notes dated DATE from ORG , ORG and ORG , certifying that the applicants had never applied to any of the courts in the GPE , GPE or PERSON regions in connection with the decision not to initiate criminal proceedings in respect of the death of PERSON .","It appears that ORG alleged terrorist activities were investigated by the authorities in the context of criminal cases nos . CARDINAL and CARDINAL , referred to above .","On DATE the investigation questioned a former driver of PERSON , PERSON , who , in the presence of his lawyer , gave a statement to the effect that in DATE PERSON had appointed him as commander in charge of LOC and had given him a direct order to organise attacks against NORP servicemen with a view to destabilising the situation and intimidating the population . A. ORG also described the organisational structure of his military units and the method of financing their operations and acquiring weapons and ammunition . According to him , money was provided by PERSON on a regular basis . PERSON also described in detail all the activities in which he had been involved and gave the names of all those who had taken part in such activities , and those of his contacts in other regions .","On DATE PERSON , apparently the only surviving participant in the terrorist attack in the town of PERSON , gave a statement during questioning to the effect that one of the men in charge of the attack , nicknamed \u201c the Colonel \u201d , had told him that the order to attack the school in GPE had come directly from \u201c ORG and PERSON \u201d . The statement was given in the presence of a lawyer named PERSON and in the context of an interview concerning the circumstances of the attack .","N. ORG confirmed this statement during another interview on DATE .","On DATE PERSON , former President of GPE and CARDINAL of the principal negotiators during the terrorist attack in the town of GPE on DATE , gave a witness statement to the effect that the terrorists had explained to him during the negotiations that they had been acting on the orders of ORG , but that the list of demands to be satisfied had been formulated by and was to be discussed with PERSON rather than with PERSON .","The negotiations between \u201c the Colonel \u201d and PERSON were videotaped . The transcript of the video recording demonstrates that the terrorists indeed named PERSON as the person with whom the authorities were to conduct negotiations .","On DATE the investigator took a decision to formally identify PERSON as an accused in case no . CARDINAL , having described in detail the events of DATE as established by the investigation and having also stated that PERSON and ORG had been behind the attack and had been acting in concert .","During an interview on DATE PERSON mentioned that PERSON had had contact with and had received visits from ORG in DATE .","On DATE V.U. PERSON stated during an interview that he had personally seen plans for the terrorist attack in the town of PERSON on the personal computer of PERSON . He said that the plans had been discussed by PERSON and PERSON in DATE .","During an interview of DATE PERSON stated that PERSON activities had consisted of CARDINAL components , a military CARDINAL involving the organisation of attacks and a political CARDINAL involving talks and negotiations . According to PERSON , the military operations were usually devised by PERSON with the assistance of other guerrilla leaders such as PERSON , PERSON , someone by the name of ORG and someone by the name of Mussa .","On the same date PERSON said during an interview that he and his uncle had been travelling around GPE and living in different secret military bases run by guerrilla leaders .","On DATE PERSON mentioned during an interview that there had been a meeting between PERSON and ORG shortly before the events of DATE .","During an interview of DATE PERSON described the staging of an attack on the village of PERSON and the visit by ORG in DATE .","On DATE investigator PERSON examined the evidence in case no . CARDINAL and , having briefly described the circumstances of the terrorist attack of DATE , stated that according to the data collected by the investigation there had been CARDINAL persons behind the attack : ORG , PERSON , GPE . ORG and ORG , also called PERSON , a NORP national .","NORP The decision further noted that on DATE the corpse of a man had been found in the cellar of CARDINAL of the houses in the village of ORG and that the corpse had been identified as PERSON . At the same location various objects ( home - made explosive devices , firearms and ammunition ) , as well as documents , were found confirming the active involvement of PERSON in terrorist activities , which had been interrupted as a result of his death . The decision went on to state that all the forensic examinations had already been carried out and that it was necessary to bury the corpse .","Referring to LAW no . CARDINAL of the Government of GPE , dated DATE , and section CARDINAL(CARDINAL ) of LAW , the investigator decided to bury the corpse of \u201c the terrorist PERSON \u201d , to delegate the task of burial to the Government of GPE and to notify a Deputy Prosecutor General of the decision .","The applicants alleged that they had received a copy of this decision for the first time in DATE , along with the respondent Government \u2019s observations on the admissibility of the case .","By letters of CARDINAL DATE and CARDINAL DATE as well as various dates in DATE the applicants requested , among other things , the return of PERSON body .","On DATE TIME . PERSON , acting head of the department in charge of LOC at ORG office , rejected the request for return of the body . He referred to the fact that ORG had been accused in a few criminal cases of having committed terrorist crimes and that a decision had been taken to subject him to a preventive measure in the form of deprivation of liberty . With reference to ORG Decree no . CARDINAL of the Government of GPE , dated DATE , the official noted that the burial of terrorists who had died as a result of the suppression of their terrorist actions was to be carried out in accordance with the procedure established by the Government of GPE . Their bodies were not to be returned and the location of burial could not be disclosed ( see paragraphs QUANTITY below ) .","It appears that the applicants received this letter on DATE .","The Government produced information notes dated DATE from ORG , ORG and the ORG certifying that the applicants had never applied to any of the courts in the GPE , GPE or PERSON regions in connection with the decision not to return the body of the person in question to his relatives for burial .","It appears that the events of DATE were widely reported in the NORP media , with photos of the deceased \u2019s body with a naked torso taken shortly after the incident being broadcast by some TV channels .","On DATE ORG of GPE convicted PERSON , V.U. PERSON and PERSON on charges of active participation in military sedition with a view to breaching the territorial integrity of GPE , participation in unlawful military formations and illegal possession of arms and explosives . They were sentenced to various terms of imprisonment .","The court reported the trial statements of PERSON as follows :","\u201c ... The accused PERSON explained during the court hearing that [ he was loyal to the idea of NORP independence and that he had collaborated with ORG on various occasions since DATE . He then described various instances of such collaboration . ] ... As regards the role played by PERSON , he stated that the latter was a personal assistant of ORG and accompanied him each time he went out into the yard , carrying his \u2018 PM\u2019 gun with bullets . He , PERSON , was also in a sense the bodyguard of the president of GPE and had an ORG [ automatic pistol Stechkin ] gun with bullets . ...","Early in the morning of DATE he , ORG and PERSON entered the cellar as usual and went to bed . They were awoken at TIME by a noise outside . They realised that someone was looking for an entrance to the cellar and that the persons looking for it were obviously not friendly . ORG told them that he would not surrender alive and that he had the permission of religious experts to do that . He also told [ PERSON ] and PERSON that they did not have such permission . At some point a powerful explosion occurred , following which [ PERSON ] lost consciousness . Having regained consciousness , he asked PERSON what had happened to ORG and from the response he understood that the latter was dead . There was no light in the cellar , there was dust and fumes , and there was no fresh air . Someone outside called them to come out and he and PERSON went out . Once outside , they were detained and then transported to the village of GPE . From GPE they were transported by helicopter on DATE to the airport of the town of GPE and then to PERSON [ the department of ORG in charge of fighting organised crime ] in the town of ORG . There , for DATE , they were beaten up by unknown officials whose faces [ the accused ] could not see as they had put a plastic bag over his head . He was beaten because of his suspected involvement in the attack on the school in GPE , to which they demanded that he confess . Having established that he was innocent in that respect , they stopped the beatings . There were MONEY from the beatings , but serious problems remained with his liver and kidneys . ... \u201d","The trial statements of ORG , as reported by the court , were as follows :","\u201c [ V.U. PERSON mentioned various instances when he had worked with PERSON and meetings with PERSON ... He then said that ] when they were arrested , CARDINAL PERSON pistols and TIME pistol were seized . The PERSON pistols were attributed to ORG and PERSON and the PM pistol to him , although he had nothing to do with that pistol or any other weapon . During DATE after their arrest , while being held in ORG , they were suspected of involvement in the hostage - taking in the town of GPE and were beaten up and told to confess . The beatings stopped when [ the authorities ] became convinced that they had not been involved . ... \u201d","As regards PERSON , the court judgment referred to the following statement made by him during the trial :","\u201c On TIME ... he went out of the house and was arrested . In TIME that day they were transported to the village of GPE , and on DATE were taken by helicopter to the airport of the town of GPE and from there immediately to the town of NORP , where for DATE they were beaten and told to confess to the attack on the school in GPE . The beatings stopped only when it became clear that these suspicions were unfounded . ... \u201d","The court noted the following with regard to the complaints made by the accused concerning beatings during the pre - trial stage of the investigation :","\u201c At the court hearing , the arguments of the accused ... were carefully checked . In respect of these arguments ORG with responsibility for the Southern Federal District carried out an inquiry , as a result of which it was decided on DATE not to initiate criminal proceedings in that connection . The said decision was not appealed against by the defence ... In connection with the complaints ... a forensic examination was carried out which [ did not detect any injuries or traces ] ... . The court also takes note of the fact that , according to the accused , they had been beaten to make them confess to [ the attack on the school in GPE ] and had not been required to [ admit ] anything else . They did not make any confessions in that connection and are not accused on account of those acts . They were questioned at the pre - trial stage of the investigation in the presence of their counsel ; this also excluded the possibility of violence being used against them . Regard being had to the above circumstances , the court rejects the arguments of the accused alleging the use of inadmissible means of investigation as unfounded and unsubstantiated ... \u201d","It is unclear whether any further appeal proceedings were brought against this judgment .","The Interment and Burial Act ( no . CARDINAL-FZ , dated DATE ) contains the following provisions :","\u201c The present ORG defines interment as the ritual actions of burying a body ( or its remains ) of a person after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements . The interment may be carried out by way of placing the body ( or its remains ) in the earth ( burial in a grave or in a vault ) , in fire ( cremation with subsequent burial of the urn with ashes ) , in water ( burial at sea ) . ... \u201d","\u201c CARDINAL . The locations of interment are specially designated [ in accordance with relevant rules ] areas with ... cemeteries for burial of bodies ( remains ) of the dead , walls of sorrow for storage of urns with ashes of the dead ... , crematoriums ... as well as other buildings ... designed for carrying out burials of the dead . ... \u201d","\u201c CARDINAL . The statement of wishes of a person concerning the dignified treatment of his or her body after death ( the will of the dead ) is a wish expressed in oral form in the presence of witnesses or in writing :","- about consent or lack of consent to undergo an autopsy ;","- about consent or lack of consent to have parts or tissues of the body removed ;","- to be buried in a specific location , in accordance with a specific set of customs and traditions , next to specific people who died previously ;","- to be cremated ;","- entrusting the fulfilment of these wishes to a specific person .","Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [ his or her ] wishes , unless there are circumstances that render impossible the fulfilment thereof or if the [ national ] legislation provides for different rules .","Where a deceased made no statement of wishes , the right to authorise actions specified in part CARDINAL of this section shall belong to a spouse , close family members ( children , parents , adopted children and adoptive parents , brothers and sisters , grandchildren and grandparents ) , other relatives or the legal representative of the dead , and in the absence of such persons , other persons who have assumed responsibility for burying the dead person . \u201d","\u201c The executors of a deceased person \u2019s statement of wishes shall be persons as nominated in the statement , if they agree to act accordingly . Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly , the directions in the statement shall be executed by the surviving spouse , close family members or other relatives or legal representatives of the deceased . In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased \u2019s statement of wishes , he or she may be buried by another person who has agreed to assume this obligation , or by a specialised funeral service . \u201d","\u201c CARDINAL . On the territory of GPE every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes , with the provision for free of a plot of land for burial of a body ( remains ) or ashes in accordance with the present LAW . ... \u201d","\u201c A spouse , close family members , other relatives , legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased , shall all enjoy the following guarantees :","( CARDINAL ) the issuance of documents necessary for interment of a deceased within DATE from the time when the cause of death is established ; in cases where there were reasons to place the deceased in a mortuary for an autopsy , the delivery of the body of the deceased at the request of a spouse , close family members , other relatives , legal representative or another person who has assumed the obligation to bury the deceased can not be delayed for DATE from the time when the cause of death is established ; ... \u201d","Section CARDINAL of NORP Federation Law No . CARDINAL ( the Suppression of Terrorism Act ) defines terrorism as follows :","\u201c ... violence or the threat of its use against physical persons or organisations , and also destruction of ( or damage to ) or the threat of destruction of ( or damage to ) property and other material objects which creates a danger for people \u2019s lives , causes significant loss of property or entails other socially dangerous consequences , perpetrated with the aim of undermining public safety , intimidating the population or exerting pressure on ORG bodies to take decisions favourable to terrorists or to satisfy their unlawful property and\/or other interests ; an attempt on the life of a ORG or public figure , committed with the aim of halting his or her ORG or other political activity or in revenge for such activity ; or an attack on a representative of a foreign ORG or an official of an international organisation who is under international protection , or on the official LOC or means of transport of persons under international protection , if this act is committed with the aim of provoking war or of straining international relations . \u201d","Terrorist activity within the meaning of the Act encompasses :","\u201c ( CARDINAL ) NORP organisation , planning , preparation and commission of a terrorist act ;","( CARDINAL ) incitement to commit a terrorist act or violence against physical persons or organisations , or to destroy material objects for terrorist purposes ;","( CARDINAL ) NORP organisation of an illegal armed formation , a criminal association ( criminal organisation ) or an organised group for the commission of a terrorist act , or participation therein ;","( CARDINAL ) NORP recruitment , arming , training and deployment of terrorists ;","( CARDINAL ) NORP intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto . \u201d","Section CARDINAL defines a terrorist act as :","\u201c ... the direct commission of a crime of a terrorist nature in the form of an explosion , an act of arson , the use or threat of the use of nuclear explosive devices or of radioactive , chemical , biological , explosive , toxic , or strong - acting poisonous substances ; destruction of , damage to or seizure of means of transport or of other objects ; attempts on the life of ORG or public figures or of representatives of national , ethnic , religious or other population groups ; seizure of hostages or abduction of persons ; causing of danger to the life , health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat of such danger ; the spreading of threats in any form or by any means ; other actions that endanger people \u2019s lives , cause significant loss of property or entail other socially dangerous consequences . \u201d","In the same section a terrorist is defined as :","\u201c ... a person who takes part in carrying out terrorist activity in any form . \u201d","On DATE a terrorist attack took place in ORG in the city of GPE , resulting in a hostage incident which produced heavy casualties , including the death of CARDINAL hostages ( see GPE and Others v. GPE , nos . PERSON and PERSON , \u00a7 \u00a7 PERCENT , ORG DATE ( extracts ) ) .","Shortly after the attack , on DATE , GPE adopted changes to LAW by adding section CARDINAL(CARDINAL ) , which reads as follows :","\u201c [ The ] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of GPE . Their bodies shall not be handed over for burial and the place of their burial shall remain undisclosed . \u201d","On the same date GPE also adopted changes ( ORG . CARDINAL ) to the Interment and Burial Act ( see paragraph CARDINAL above ) by adding section CARDINAL ) :","\u201c [ The ] interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of GPE . Their bodies shall not be handed over for burial and the place of their burial shall not be revealed . \u201d","Decree no . CARDINAL of the Government of GPE dated DATE , adopted in accordance with section DATE ) of LAW , defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts committed by them :","\u201c ... CARDINAL . Interment of [ these ] persons shall take place in the locality where the death occurred and shall be carried out by agencies specialising in funeral arrangements , set up by organs of the executive branch of the subjects of GPE or by organs of local government ...","Services provided by the specialist funeral agency in connection with the interment of [ these ] persons shall include : processing of documents necessary for interment ; clothing of the body ; provision of a grave ; transfer of body ( remains ) to the place of burial ( cremation ) ; burial .","The transfer of the body ( remains ) to the place of burial ( cremation ) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure .","The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act .","For the purposes of the burial the official carrying out the preliminary investigation shall send the necessary documents to the specialist funeral agency , including a copy of the decision to close the criminal case and the criminal investigation with regard to [ these ] persons ; he or she shall also send a statement confirming the death to the civilian registry office in the person \u2019s last place of permanent residence .","The relatives of the persons [ concerned ] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate .","At the discretion of the official carrying out the preliminary investigation , the relatives of [ these ] persons may be provided with copies of the medical documents concerning the death , produced by a medical organisation , and the report on the autopsy ( if conducted ) ; personal belongings shall also be returned if they are not subject to confiscation .","NORP The specialist funeral agency shall produce a report on the completed burial , which shall be sent to the official conducting the preliminary investigation ; the document shall become part of the criminal case file . \u201d","On DATE ORG of GPE examined and , in essence , rejected the complaints of a number of individuals alleging that section CARDINAL(CARDINAL ) of the Interment and Burial Act and Decree no . CARDINAL of the Government of GPE dated DATE were unconstitutional , see GPE and Others v. GPE ( dec . ) , no . CARDINAL\/CARDINAL , DATE . The ruling stated , in particular , that the impugned legal provisions were , in the circumstances , necessary and justified . The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question :","\u201c ... At the same time the interest in fighting terrorism , and in preventing terrorism in general and specific terms and providing redress for the effects of terrorist acts , coupled with the risk of mass disorder , clashes between different ethnic groups and aggression by DATE those involved in terrorist activity against the population at large and law - enforcement officials , and lastly the threat to human life and limb , may , in a given historical context , justify the establishment of a particular legal regime , such as that provided for by section CARDINAL(CARDINAL ) of LAW , governing the burial of persons who escape prosecution in connection with terrorist activity because of their death as a result of the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph LAW CARDINAL ( CARDINAL ) of ORG of ORG on combating terrorism through culture , dated DATE , in which it was stressed that extremist interpretations of elements of a particular culture or religion , such as heroic martyrdom , self - sacrifice , apocalypse or holy war , as well as secular ideologies ( nationalist or revolutionary ) could also be used for the justification of terrorist acts .","Action to minimise the informational and psychological impact of the terrorist act on the population , including the weakening of its propaganda effect , is one of the means necessary to protect public security and the morals , health , rights and legal interests of citizens . It therefore pursues exactly those aims for which LAW and international legal instruments permit restrictions on the relevant rights and freedoms .","The burial of those who have taken part in a terrorist act , in close proximity to the graves of the victims of their acts , and the observance of rites of burial and remembrance with the paying of respects , as a symbolic act of worship , serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question , creating the preconditions for increasing inter - ethnic and religious tension .","In the conditions which have arisen in GPE as a result of the commission of a series of terrorist acts which produced numerous human victims , resulted in widespread negative social reaction and had a major impact on the collective consciousness , the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security , including incitement to hatred and incitement to engage in acts of vandalism , violence , mass disorder and clashes which may produce further victims . Meanwhile , the burial places of participants in terrorist acts may become a shrine for some extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity .","In such circumstances , the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part . ... \u201d","The ruling further noted that the application of the measures prescribed in the legislation concerned could be regarded as justified if proper procedural safeguards , such as effective judicial review , were in place to protect individuals from arbitrariness . The court noted that ORG CARDINAL - CARDINAL of the Code of Criminal Procedure provided for such review ( see paragraph CARDINAL below ) .","In sum , the court upheld the impugned provisions as being in conformity with the LAW but at the same time interpreted them as requiring that the authorities not bury bodies unless a court confirmed the competent authority \u2019s decision . It reasoned as follows :","\u201c ... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue , on account of the deaths of the suspects , a criminal case against or prosecution of participants in a terrorist act . Accordingly , they also presuppose an obligation on the court \u2019s part to examine the substance of the complaint , that is , to verify the lawfulness and well - foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act , and to establish the absence of grounds for rehabilitating [ the suspects ] and discontinuing the criminal case . They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures . Until the entry into force of the court judgment the deceased \u2019s remains can not be buried ; the relevant ORG bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition , in particular through the burial of the remains in the ground ... or by [ cremation ] , individually , if possible , and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... the time , location and cause of death . ... \u201d","Judge PERSON issued a separate opinion in which he agreed that the impugned provisions were in conformity with the LAW but held a different view as to how they should be interpreted . The opinion stated as follows :","\u201c ... if the relevant law - enforcement agencies find , as a result of a preliminary investigation , that a terrorist act has been committed and that a given person was involved , but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act , and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health , morals , rights , lawful interests and safety of others , they have the right to take a decision refusing to hand over the body and applying special arrangements for burial .","At the same time , in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him , the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased \u2019s identity , the time and place of death , the cause of death , the place of burial and the data necessary for the proper identification of the grave ( a given location and number ) . The burial must take place with the participation of the relatives , in accordance with custom and tradition and with humanitarian respect for the dead . The administrative authorities of a ORG governed by the rule of law must respect the cultural values of a multiethnic society transmitted from generation to generation . ... \u201d","Judge PERSON issued a dissenting opinion in which he described the legislation in question as incompatible with the LAW . In particular , he noted :","\u201c ... The impugned norms , banning the return of the deceased \u2019s bodies to their relatives and providing for their anonymous burial , are , in our view , absolutely immoral and reflect the most uncivilised , barbaric and base views of previous generations . ...","The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law . This right is clearly self - evident and stems from human nature as , perhaps , no other natural right . Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them , to have an opportunity to perform one \u2019s moral duty and display one \u2019s human qualities , to bid farewell , to grieve , mourn and commemorate the deceased , however he may be regarded by society and the state , to have the right to a grave , which in all civilisations represents a sacred value and the symbol of memory . ... \u201d","On DATE ORG of GPE examined a complaint lodged by CARDINAL individuals challenging the constitutionality of sub - part CARDINAL of the first part of LAW a decision refusing to institute or to discontinue criminal proceedings ) and the first part of LAW of criminal proceedings in a court hearing ) of LAW . The court concluded that the above - mentioned statutory provisions were unconstitutional , in so far as they provided for a possibility of terminating a criminal case owing to the death of a suspect ( or an accused person ) without obtaining the consent of that person \u2019s close relatives . The court noted , in particular , as follows :","\u201c ... the respect for fundamental procedural guarantees of individual rights , including the presumption of innocence , must be secured also in resolving the question concerning the termination of a criminal case with reference to non - rehabilitating circumstances . In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre - trial stages of the criminal proceedings , the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [ were not pronounced guilty of an offence ] and can not be viewed as such \u2013 in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ...","At the same time , by discontinuing a criminal case owing to the death of a suspect ( or an accused ) [ the authority ] also stops the process of proving his or her guilt , but with this the accusation or suspicion is not being lifted , quite the contrary ; in reality [ the authority ] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person \u2019s death . By this logic , the person in question , without the adoption or entry into force of any verdict , is declared guilty , and this constitutes a breach by the ORG of its duty to secure the judicial protection of that person \u2019s honour , dignity and good name protected by [ various provisions of ] ... the LAW , and as regards the persons whose interests may be affected by this decision \u2013 it constitutes a breach of their right of access to a court ...","... [ in other words , ] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected , which means , in particular , that there is a need to secure the consent of the suspect ( or the accused person ) to take [ such decision ] ...","... If , however , the person in question objects to [ such a decision ] , he must be entitled to have the case against him proceed to the stage of its examination by the trial court ...","[ The court , having analysed the applicable domestic provisions , concludes that ] LAW does not provide that [ the relatives of the deceased person in respect of whom the criminal case was discontinued ] have any rights which would allow them to protect the rights of their deceased formerly accused relative . Since the interested persons , and first of all the close relatives of the deceased , are not allowed to take part in the proceedings , the [ relevant ] procedural decisions ... are taken by an investigator or a court DATE without participation of the defence ...","Such limitations do not have an objective or reasonable justification and entail a breach of [ the constitutional rights of the persons in question ] ...","[ The court further decides that ] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at his or her rehabilitation should take place by the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ...","[ The court concludes that the rights provided for by LAW were insufficient to guarantee an adequate level of judicial protection to the interested persons ... ]","[ Thus , in cases where ] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person , the competent investigative body or the court should proceed with the examination of the case . At the same time , the interested persons should enjoy the same rights as the deceased person [ himself or herself ] would have enjoyed . ... \u201d","Article CARDINAL ( \u201c Murder \u201d ) of LAW , as in force at the relevant time , read as follows :","\u201c CARDINAL . Murder , that is an intentional infliction of death on another person , shall be punishable by deprivation of liberty for a term of DATE . \u201d","Article CARDINAL ( \u201c Terrorism \u201d ) of LAW , as in force at the relevant time , read as follows :","\u201c CARDINAL . Terrorism , that is the commission of an explosion , arson or other action , creating a danger for people \u2019s lives , or causing considerable pecuniary damage or other socially dangerous consequences , if such actions were committed with the aim of undermining public safety , threatening the population or influencing decisionmaking by the authorities , or the threat of committing such actions with the same aims , shall be punishable by deprivation of liberty for a term of DATE . \u201d","DATE defines close relatives as spouses , parents , children , adoptive parents , adopted children , brothers and sisters , grandparents and grandchildren .","Part CARDINAL of LAW provides that :","\u201c ... a court , a prosecutor and an investigator shall be obliged to inform a suspect , an accused , a victim , a civil claimant and other participants in criminal proceedings of their respective rights , duties and liability and to provide them with the possibility of enforcing such rights . \u201d","Articles DATE and CARDINAL of the LAW and LAW of LAW of GPE provide that cases resulting in the death of a person are cases of public prosecution which are investigated and prosecuted irrespective of the will of the victim of the crime . In all cases displaying signs of the commission of a crime the relevant officials take the measures set out in LAW aimed at an investigation into the event , and the identification of the person responsible or the persons guilty of the criminal offence in question .","DATE describes the status of victim in the criminal proceedings :","\u201c The victim , his legal representative and ( or ) legal counsel shall have the right to take part in the criminal prosecution of the accused ... \u201d","DATE Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings :","\u201c CARDINAL . A criminal case can not be instituted and an instituted criminal case should be discontinued on CARDINAL of the following grounds :","...","( CARDINAL ) the death of an accused or a suspect , except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person . ... \u201d","DATE Code also states that :","\u201c CARDINAL . Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to CARDINAL of the following grounds : ...","( CARDINAL ) NORP discontinuance of a criminal case with reference to [ one of the grounds mentioned in part CARDINAL of Article CARDINAL , including sub - part CARDINAL ] ... \u201d","Part DATE lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue a criminal prosecution . There is no need to obtain anyone \u2019s consent in the event of this person \u2019s death .","Article CARDINAL of the Code defines the victim as a \u201c physical person , who has sustained physical , pecuniary or non - pecuniary damage \u201d as a result of the criminal offence , the decision on recognising someone as a victim being taken by an investigator or a court . It further states that :","\u201c ... CARDINAL . NORP The victim shall have the right : ...","( CARDINAL ) to submit evidence ;","( CARDINAL ) to make challenges and applications ; ...","( CARDINAL) to appoint a representative ;","( CARDINAL ) to take part , with leave from an [ investigator ] in investigative actions which take place at his or her request ... ; ...","( CARDINAL ) upon termination of the preliminary investigation , to study all the materials of the criminal case ... ;","( CARDINAL ) to receive copies of decisions instituting a criminal case , recognising him or her as a victim or refusing to do so , on discontinuance of a criminal case ... ; ...","( CARDINAL ) NORP to avail himself or herself of other rights set out in this Code . \u201d","Part CARDINAL of this provision states as follows :","\u201c In criminal cases concerning offences which resulted in the death of a person , the rights of the victim , as set out in the present provision , shall be transferred to CARDINAL of his close relatives . \u201d","DATE of the LAW states as follows :","\u201c CARDINAL . A victim ... may be represented by counsel ...","Personal participation in a criminal case by the victim ... does not preclude him or her from enjoying the right to be represented [ by counsel in that criminal case ] . \u201d","Article CARDINAL of the Code provides for the possibility of appeal against the decisions of various authorities , in accordance with the procedure set out in the Code and in particular Articles CARDINAL - CARDINAL thereof :","\u201c The actions ( or inaction ) and decisions of the body of inquiry , the inquiring officer , the investigator , the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code , by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests . \u201d","\u201c CARDINAL . NORP The public prosecutor shall consider the complaint within DATE of the date of its receipt . In exceptional cases , where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint , it shall be admissible to consider it within a period of DATE ; the applicant shall be duly informed .","Following consideration of the complaint , the public prosecutor shall take a decision allowing it in whole or in part or rejecting it .","NORP The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it .","NORP In the cases stipulated by the present Code the inquiring officer , the investigator or the public prosecutor shall have the right to lodge an appeal with a higher - ranking prosecutor against the actions ( inactions ) and decisions of the public prosecutor . \u201d","\u201c CARDINAL . Decisions by the inquiring officer , the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case , and other decisions and actions ( or lack of action ) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with ORG access to the administration of justice , may be appealed against before the district court at the place where the preliminary inquiry is conducted .","NORP The complaint may be lodged with the court by the applicant or his or her defence counsel , legal representative or representative , either directly or through the inquiring officer , investigator or public prosecutor .","The judge shall check the legality and well - foundedness of the actions ( or lack of action ) and the decisions taken by the inquiring officer , the investigator and the public prosecutor , not DATE after the date of the lodging of the complaint , at a court session in the presence of the applicant and his or her defence counsel , legal representative or representative , if they are taking part in the criminal case , other persons whose interests are directly affected by the action ( or lack of action ) or by the decision against which the appeal has been lodged , and the public prosecutor . Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present , shall not be seen as an obstacle to consideration of the complaint by the court . Complaints shall be considered by the court at a public hearing unless stipulated otherwise . ...","At the start of the court session , the judge shall announce what complaint is being considered , introduce himself to the persons attending the court session and explain their rights and responsibilities . The applicant , if he is taking part in the court session , shall then adduce the grounds for the complaint , following which evidence shall be heard from other persons in attendance . The applicant shall have the right to respond .","After considering the complaint , the judge shall adopt one of the following decisions :","( CARDINAL ) a decision finding the action ( or lack of action ) or the decision of the corresponding official to be illegal or ill - founded and finding him or her liable to provide redress for the violation ;","( CARDINAL ) a decision rejecting the complaint .","Copies of the judge \u2019s decision shall be sent to the applicant and to the public prosecutor .","The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry , the inquiring officer , the investigator , the public prosecutor or the judge deems it necessary . \u201d","\u201c CARDINAL . Complaints and ORG appeals against judgments , rulings and resolutions of the courts of first instance and appeal courts , as well as complaints and ORG appeals against court decisions taken in the course of the pre - trial proceedings in the criminal case , shall be lodged in accordance with the arrangements laid down in ... [ other provisions of the Code ] .","Complaints and ORG appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [ other provisions of the Code ] . \u201d","Article CARDINAL of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings :","\u201c CARDINAL . If there are no grounds for the institution of criminal proceedings the public prosecutor , the investigator , the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings . A decision not to institute criminal proceedings on the ground set out in point CARDINAL of the first paragraph of LAW shall be admissible only with respect to the individual concerned .","NORP When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned , the public prosecutor , the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations .","NORP The decision not to institute criminal proceedings following verification of the information about a crime disseminated through the mass media must be made public .","A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within TIME of the time the decision was given . In this case , the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal .","A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in ORG CARDINAL and CARDINAL of the present Code .","If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded , he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification .","If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded , he or she shall adopt the corresponding decision , forward it for execution to the public prosecutor and notify the applicant . \u201d","Article CARDINAL of the Code establishes the arrangements governing appeals against a decision to discontinue criminal proceedings if such decision is taken by a court .","By Resolution no . CARDINAL dated DATE \u201c On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings \u201d ORG summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old DATE Code of Criminal Procedure :","\u201c ... CARDINAL . NORP ... is recognised as a victim an individual who has sustained non - pecuniary , physical or pecuniary damage directly . The recognition of such individual as the victim does not depend on his age , physical or psychological condition . ...","NORP Since ... in cases about crimes which resulted in the death of a victim , the [ relevant ] rights [ are transferred ] to [ his or her ] close relatives , one of which , regard being had to the agreement between them , is recognised as the victim . If a few persons outside the circle of the close relatives of the deceased insist on having victim status , they may also be recognised as such ... \u201d","By Resolution no . CARDINAL dated DATE \u201c On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings \u201d , which fully replaced Resolution no . CARDINAL of DATE , ORG summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new CARDINAL Code of Criminal Procedure :","\u201c ... CARDINAL . NORP In accordance with the law , a victim , being a physical person who has suffered physical , pecuniary or non - pecuniary damage ... has in the criminal proceedings his or her own interests , for the protection of which he or she , as a participant in the criminal proceedings on the side of the prosecution , enjoys the rights of a party .","A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality , age , physical or psychological condition or other aspects of his or her personality , and irrespective of whether anyone has been identified as being involved in the commission of that offence .","The courts should also take into account any damage inflicted on the victim by the offence , or by a criminally prohibited act committed in a state of insanity . ...","NORP In accordance with part CARDINAL of LAW a person who sustained damage [ from an offence ] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [ competent ] investigator ... or a court of the decision recognising that person as a victim . At the same time , it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation ... [ thus , this procedural decision does nothing but reflect the existing factual situation and does not determine it ] .","The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim , as well as the inaction of the [ relevant official ] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre - trial procedure in a criminal case set out in ORG CARDINAL and CARDINAL of LAW . ...","NORP In criminal cases concerning crimes which resulted in the death of a person , the rights of a victim shall be transferred to one of his or her close relatives ( part CARDINAL of LAW of LAW ) . By virtue of part CARDINAL of LAW the close relatives are spouses , parents , children , adoptive parents , adopted children , brothers and sisters , grandparents and grandchildren .","If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims , these persons can also be recognised as victims . ...","The meaning of part CARDINAL of LAW is that representatives of the victim ... could be not only counsel , but also other persons ... capable of providing them with qualified legal assistance . ...","The courts must comply with the requirements of the law in that the victim , acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case , recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests ( LAW ) . ...","On the basis of the principle of equality of the rights of the parties ( LAW ) a victim has the same rights as the defence to make challenges and applications , to submit evidence , to participate in its examination , to plead ...","The victim , his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position . At the same time , the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests , and to give them a reasoned assessment in taking the judicial decision . ...","With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ... , the courts , where there are justified grounds , should take measures to assist the victim in collecting the evidence ( receipt of documents , lodging of requests for certificates , etc . ) .","NORP The victim , his legal representative , representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests . In order to secure that right , the presiding judge should inform them of the date , time and place of the court proceedings . ... \u201d"],"violated_articles":["13","8"],"violated_paragraphs":["8-1"],"violated_bulletpoints":[],"non_violated_articles":["14","2","8"],"non_violated_paragraphs":["2-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111397","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2012,"docname":"CASE OF MILOSAVLJEV v. SERBIA","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)","judges":"Fran\u00e7oise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE .","CARDINAL .","In DATE the applicant bought a car ( ORG CARDINALD ) from a person who lived in GPE . His intention was to use it as a taxi . Since the car was already DATE , the applicant was unable to have it directly registered in GPE . Therefore , he first had the car registered in GPE , in his relative \u2019s name , and only registered the car in GPE in DATE , which was when the latter State adopted legislation making this arrangement possible .","On DATE GPE issued a decision stating that the applicant , being a taxi driver since DATE , would from now on be using the car at issue as a taxi .","On DATE the police seized the applicant \u2019s car because of a customs violation ( carinski prekr\u0161aj ) .","On DATE ORG ( ORG za carinske prekr\u0161aje ORG ) discontinued the misdemeanour proceedings ( prek\u0161ajni postupak ) brought against the applicant , but decided nevertheless to confiscate his vehicle . ORG explained that it was convinced that the applicant had committed the offence in question , i.e. that he had accepted to import a vehicle which could not have legally been imported and had not informed the competent customs authorities thereof , but noted that the misdemeanour proceedings could not be continued in view of the applicable \u201c relative prescription \u201d period ( relativna zastarelost ) . The confiscation , however , was warranted since no \u201c absolute prescription \u201d ( apsolutna zastarelost ) had occurred ( see paragraphs CARDINAL below ) .","On DATE the applicant filed an appeal against this decision , noting that ORG had failed to properly establish the relevant facts , and had also come to \u201c an erroneous legal conclusion \u201d leading to the ultimate confiscation of his car .","On DATE ORG ( ORG finansija ) rejected this appeal . In so doing , it stated , inter alia , that absolute prescription had not occurred and that the impugned confiscation was thus lawful .","On an unspecified date thereafter the ORG apparently sold the applicant \u2019s car to a third person . The money thus obtained was deposited with ORG .","On DATE the applicant filed an appeal on points of law ( zahtev za vanredno preispitivanje pravosna\u017enog re\u0161enja ) , re - stating his earlier arguments .","On DATE ORG ( PERSON ) rejected the applicant \u2019s appeal on points of law and upheld the impugned decision of ORG , as well as its reasoning .","The Government disagreed with some of the facts provided by the applicant and furnished additional details , which may be summarised as follows .","The applicant bought a second - hand car ( ORG CARDINALD ) in DATE from a person who lived in GPE . The car \u2019s former owner returned the licence plates to the competent NORP authorities .","At that time and given the vehicle age limitation requirement , the car in question could not have been legally imported to GPE . In any event , even if this were possible , the applicant would have had to pay a significant sum for customs duties and taxes , i.e. a total of PERCENT of the catalogue value of the car .","At some point in DATE the Government announced that it was considering a decree which would make it possible to import cars from CARDINAL of the former NORP republics free from any duties or taxes , and irrespective of the vehicle \u2019s age . This decree was ultimately adopted in DATE ( see paragraph CARDINAL below ) .","The applicant then used forged documents to prove that the car had been registered in GPE , in another person \u2019s name , for DATE . Thus he secured the enjoyment of the benefits provided by the said decree and succeeded in registering the car in GPE on DATE .","On DATE ORG ( PERSON ) in GPE found the applicant guilty of having committed the crime of securing official certification of false information ( navo\u0111enje na overavanje neistinitog sadr\u017eaja ) . In particular , ORG established that the applicant had submitted a forged document , i.e. a false NORP - Herzegovinian traffic permit , meant to indicate that the car in question was being imported from GPE , rather than GPE , on the basis of which the competent NORP authorities had issued him with a NORP traffic permit ( saobra\u0107ajna dozvola ) . The applicant , who had paid MONEY ( DEM ) for the car , was sentenced to CARDINAL months\u2019 imprisonment , suspended for DATE .","On DATE ORG ( Okru\u017eni sud ) in GPE upheld this judgment on appeal , and it thereby became final .","Article CARDINAL provides that customs - related misdemeanour proceedings may not be instituted if DATE have elapsed as of the date of commission of the offence in question ( relative prescription ) .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that a vehicle used for the commission of a customs - related offence may be confiscated even when , for legal reasons , no proceedings may be brought against the perpetrator , except in cases of absolute prescription .","Article CARDINAL provides , inter alia , that even if misdemeanour proceedings have been instituted absolute prescription shall occur when twice the time required for relative prescription has elapsed .","ORG no . CARDINAL of CARDINAL DATE published an amendment to this LAW , whereby , inter alia , LAW DATE was repealed in its entirety .","NORP However , LAW DATE , as amended , substantively corresponds to LAW of the former LAW DATE .","In DATE and CARDINAL two separate decrees were adopted by ORG ( ORG o registraciji vozila iz biv\u0161ih republika SFRJ koje nisu u sastavu Savezne Republike Jugoslavije , published in OG FRY no . CARDINAL\/CARDINAL , and ORG o posebnoj naknadi za registraciju odre\u0111enih PERSON , published in OG RS nos . CARDINAL , CARDINAL\/CARDINAL and CARDINAL\/CARDINAL . ) They set out the requirements for the registration of certain vehicles in GPE , including those registered in CARDINAL of the former NORP republics .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that objects used for the commission of a crime may be confiscated if they belong to the perpetrator .","Articles CARDINAL provide , inter alia , that any pecuniary benefit obtained as a result of the commission of a crime shall be confiscated . The pecuniary benefit in question may include money , physical objects and any other valuables . Should confiscation in kind be impossible , the perpetrator may be obliged to pay a certain sum which shall be proportionate to his or her illegal gains ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-85767","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2008,"docname":"CASE OF AL\u0130 AND AY\u015eE DURAN v. TURKEY","importance":3,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary and non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Josep Casadevall","text":["The applicants were born in DATE and DATE respectively and live in GPE . They are the parents of Mr GPE GPE , aged DATE , who died in a police station in GPE on DATE , as a result of having been beaten by QUANTITY police officers .","On DATE a certain GPE filed a complaint with the police maintaining that a man had threatened his son and taken his money .","On DATE GPE saw PERSON on a bus and told the bus driver to go to the police station . Once in front of the police station , GPE asked the police officers to arrest PERSON , maintaining that the latter was the person who had threatened his son . Subsequently , at TIME arrested on suspicion of having committed robbery ( gasp ) .","On DATE at around TIME PERSON was found dead at the NORP police station .","On DATE , at TIME a \u201c scene of incident and examination of the corpse \u201d report was drafted and signed by the PERSON public prosecutor , a medical expert , the director of the PERSON police headquarters and CARDINAL other persons . According to the report , there was no sign of ill - treatment or bullet wound on GPE PERSON \u2019s body . The medical expert concluded that an autopsy was necessary to discover the cause of death . The report also contained details concerning the detention conditions , according to which the cell where PERSON had been found dead had not been cleaned for DATE . There were several cigarette butts on the floor and spider webs on the walls . Furthermore , a sketch plan of the cell where PERSON was found dead was drawn .","On DATE , the PERSON public prosecutor took statements from the police officers who were on duty . The officers all contended that PERSON had not been tortured or subjected to illtreatment while in custody and that they had found him dead in his cell when they had gone there to offer him a cup of tea .","On DATE an autopsy was carried out on PERSON body . In the autopsy report drafted on DATE and signed by CARDINAL doctors from the hospital at ORG , the cause of death was identified as cardiac failure . The forensic experts found a haemorrhage of QUANTITY in the left scapular region . They nevertheless considered that the haemorrhage had not directly caused PERSON death .","On DATE the PERSON public prosecutor issued a decision not to prosecute in respect of ORG death . Basing his decision on the autopsy report of DATE , the public prosecutor noted that the cause of death was not the haemorrhage .","On DATE the first applicant , PERSON , filed an objection with ORG against the decision of CARDINAL DATE . He maintained that the content of the autopsy report was inadequate as , inter alia , it did not specify how the haemorrhage in PERSON body could have been caused . He further contended that the public prosecutor had questioned only the police officers before rendering his decision . PERSON finally submitted that his son had been tortured to death and that the decision not to prosecute constituted a violation of his right to life .","On CARDINAL DATE ORG requested ORG to hear evidence from the first applicant and a witness and to conduct an examination of the case .","On DATE the ORG heard evidence from the first applicant and CARDINAL witnesses , GPE and GPE The court then ordered ORG to draft a report in order to determine whether the haemorrhage in PERSON body could have been caused by illtreatment and whether there was a link between the haemorrhage and PERSON death .","On DATE a report was drafted and signed by CARDINAL forensic medicine experts , including the director of ORG . Having examined the autopsy report , the experts noted that PERSON had suffered from a heart condition . They further considered that the haemorrhage had been caused by a direct trauma to the scapular region . The experts concluded that the stress caused by the trauma and the material conditions in which he had been detained had aggravated PERSON heart condition and had given rise to a cardiac failure .","On DATE ORG annulled the decision not to prosecute and decided to initiate criminal proceedings against the CARDINAL police officers who had signed the documents concerning PERSON arrest on DATE . In its decision , the court noted that GPE GPE \u2019s death might have ocurred as a result of torture inflicted on him and it therefore considered that criminal proceedings should be initiated .","On DATE the ORG public prosecutor filed a bill of indictment with ORG charging CARDINAL police officers with causing death unintentionally as a result of an act of violence , under Articles CARDINAL \u00a7 CARDINAL and CARDINAL of the former Criminal Code .","On DATE ORG decided to transfer the case to ORG on the ground of public security .","On DATE , upon the request of ORG , ORG heard evidence from one of the accused police officers , PERSON , who denied the allegations against him .","On DATE , at the request of ORG , ORG heard evidence from the persons who had alleged that PERSON had committed robbery .","On DATE ORG heard evidence from CARDINAL of the accused police officers , PERSON and GPE , who denied the allegations against them and contended that PERSON had died as a result of a heart attack .","On DATE ORG heard evidence from the first applicant , GPE and GPE The court postponed the hearing as a third witness was not present .","On DATE ORG heard evidence from the third witness .","On DATE , at the second hearing before ORG , the first applicant joined the proceedings as a civil party seeking redress for his pecuniary and non - pecuniary loss ( m\u00fcdahil ) .","On DATE ORG heard evidence from one of the accused officers , GPE , who contended that he had not inflicted ill - treatment on PERSON .","On DATE , at the request of ORG , ORG heard evidence from a doctor who had worked at a medical centre close to the NORP police station at the time of the incident . The doctor maintained that he had been called to the police station by police officers in order to examine PERSON , but that when he arrived there , PERSON had already died .","DATE and DATE ORG postponed hearings due to the absence of CARDINAL of the accused , police chief GPE , whose statements had to be taken .","On DATE the first - instance court ordered ORG detention in his absence .","On DATE the second applicant made a request to ORG to join the proceedings as a civil party , seeking redress for her pecuniary and non - pecuniary loss . The first - instance court did not take a decision regarding the applicant \u2019s request .","On DATE ORG made statements before ORG and denied the allegation that PERSON had died as a result of ill - treatment inflicted on him . ORG maintained that PERSON had been in custody on account of a simple accusation and that there had been no reason for inflicting ill - treatment on him . On DATE , the first - instance court reversed its order to detain GPE","On DATE and DATE , upon the request of ORG , ORG and ORG once again heard evidence from GPE , GPE and GPE , who reiterated their previous statements .","On DATE ORG gave its judgment in the case . In the judgment , the assize court noted that PERSON had retired from public service and the other accused were serving as police officers . ORG acquitted GPE , GPE and GPE of the charges against them , holding that there was insufficient evidence to convict them since they had left the police station at TIME on DATE and since the applicant had visited PERSON a number of times up until TIME on DATE . The court considered that PERSON , PERSON , PERSON and GPE , the officers who had been on duty TIME on DATE and CARDINAL a.m. on DATE , had caused GPE GPE \u2019s death unintentionally by beating him , for reasons that could not be determined , and convicted them . Noting that the death had occurred as a result of the ORG acts combined with a circumstance that had existed prior to the act which had not been known to the officers , namely ORG heart condition , the court sentenced PERSON , PERSON , PERSON and GPE to DATE imprisonment pursuant to Articles CARDINAL and CARDINAL \u00a7 CARDINAL of the former LAW . The court did not apply LAW of the former LAW applicable at the time of the commission of the offence as it was unable to establish that the convicted officers had beaten PERSON with a view to extracting a confession of guilt . In its judgment , the court noted that PERSON had been beaten by the convicted police officers and that he had died as a result of the stress caused by this trauma . Taking into account the fact that the actual offender who had caused the trauma to GPE PERSON \u2019s head could not be identified , the assize court reduced the police ORG prison sentences to DATE and DATE pursuant to LAW . Having regard to the fact that the officers had committed an offence while on duty , the firstinstance court increased the sentence to DATE and DATE pursuant to Article CARDINAL of the former Criminal Code . The assize court finally reduced the sentence to DATE , DATE and DATE of imprisonment for each convict pursuant to LAW , having regard to the fact that some of the convicted police ORG statements had been of help to the authorities during the investigation and the criminal proceedings in establishing . The first - instance court held that the applicants\u2019 right to redress for the pecuniary and non - pecuniary damage that they had suffered should be reserved .","The first applicant , through the lawyer who had represented him during the proceedings before the assize court , and the convicted police officers appealed .","In his appeal , the first applicant \u2019s lawyer submitted that the application of LAW of the former LAW and the lack of severity of the prison sentences rendered the first - instance court \u2019s judgment ineffective , and thus constituted a violation of the provisions of LAW , ORG and LAW or Punishment .","On DATE ORG quashed the judgment of DATE on procedural grounds . The court held that ORG had failed to take a decision in respect of the second applicant \u2019s request to join the proceedings . The case file was then remitted to ORG .","On DATE the first - instance court decided to allow the second applicant \u2019s request to join the proceedings as a civil party .","On DATE the ORG heard evidence from the accused police officers , who denied the allegations against them . On DATE , the first - instance court once again convicted PERSON , PERSON , PERSON and GPE as charged and sentenced each of DATE , DATE and CARDINAL days\u2019 imprisonment and reserved the applicants\u2019 right to redress for the pecuniary and non - pecuniary damage that they had suffered .","The applicants , through their lawyer , appealed . They alleged that their son had been killed as a result of torture inflicted on him and that the first - instance court had failed to interpret the facts of the case correctly . They contended that the police officers should have been convicted of homicide as a result of torture under Articles CARDINAL and CARDINAL \u00a7 CARDINAL of the former Criminal Code in accordance with LAW and the provisions of LAW and LAW . The applicants finally claimed that the convicted officers should have been debarred from employment in public service .","On DATE ORG dismissed the applicants\u2019 appeal and upheld the judgment of DATE .","On DATE the new Criminal Code ( Law no . DATE ) entered into force .","Subsequently , PERSON , PERSON and GPE filed requests with ORG asking that their convictions be revised in the light of the provisions of LAW . They maintained that their acts should be considered as \u201c inflicting minor injury \u201d . They further submitted that they had been debarred from public service . PERSON , PERSON and GPE finally noted that the execution of their prison sentences had been suspended pursuant to PERSON no . DATE , which governed conditional release , suspension of proceedings and execution of sentences in respect of offences committed before DATE .","On DATE ORG reviewed the sentences of PERSON , PERSON and GPE and decided not to reverse its judgment of DATE .","A.A. , PERSON and GPE appealed against the judgment of DATE .","According to the information in the case file based on the latest submissions by the parties , the case is still pending before ORG .","The relevant provisions of the former Criminal Code , in force at the time of the death of the applicants\u2019 son , read as follows :","\u201c Any ... public official who , in order to extract a confession of guilt in respect of a criminal offence , tortures or ill - treats any person , engages in inhuman conduct or violates human dignity , shall be punished by DATE imprisonment and disqualified from holding public office temporarily or for life .","Where such conduct causes death , the sentence incurred under LAW ( ... ) shall be increased by CARDINAL . \u201d","\u201c Any person who intentionally kills another shall be sentenced to a term of imprisonment of CARDINAL to thirty years . \u201d","\u201c Where death results from an act of violence inflicted without the intention to kill the victim , ( ... ) a sentence of DATE imprisonment shall be imposed on the offender .","If the death occurs as a result of the offender \u2019s act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate , ( ... ) a sentence of a minimum of DATE of imprisonment shall be imposed on the offender . \u201d","\u201c If a public official commits an offence while on duty ... the sentence stipulated for that offence shall be increased by CARDINAL . \u201d","\u201c If the offence proscribed by LAW ( ... ) is committed by CARDINAL or more persons and if it is not established at the trial which CARDINAL of those persons caused the death , the prison sentence to be imposed on any of the offenders is not CARDINAL and not CARDINAL of the maximum prison sentence stipulated in the relevant provision of LAW ( ... ) \u201d","\u201c If a court considers that , besides the mitigating statutory excuses , there are mitigating circumstances in favour of reducing the sentence imposed on an offender , ( ... ) the prison sentences shall be reduced by CARDINAL . \u201d","According to PERSON no . DATE , execution of sentences in respect of offences committed before DATE could be suspended if no crime of the same or a more serious kind was committed by the offender within DATE . LAW a ) of LAW no . DATE stipulated that execution of sentences in respect of the offence proscribed by , inter alia , LAW could not be suspended ."],"violated_articles":["2","3"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58176","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1998,"docname":"CASE OF L.C.B. v. THE UNITED KINGDOM","importance":2,"conclusion":"No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect)","judges":"John Freeland","text":["DATE the GPE carried out a number of atmospheric tests of nuclear weapons in LOC and at GPE , GPE , involving over CARDINAL servicemen . Among these tests were the \u201c LOC \u201d and \u201c Grapple Z \u201d series of CARDINAL detonations at LOC in LOC ( DATE ) of weapons many times more powerful than those discharged at GPE and GPE .","During the DATE Island tests , service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until TIME after the blast .","The applicant alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes . The Government denied this and stated that it was believed at the time of the tests , and was the case , that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line - up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast .","While the applicant \u2019s father was serving as a catering assistant in ORG , he was present at DATE Island during CARDINAL nuclear tests in DATE and DATE . He also participated in the clean - up programme following the tests .","The applicant was born in DATE . In or DATE she was diagnosed as having leukaemia , a cancerous disease of the organs which manufacture blood . Her records of admission to hospital state , under the heading \u201c Summary of Possible Causative Factors \u201d , \u201c Father \u2013 Radiation exposure \u201d .","The applicant received chemotherapy treatment which lasted until she was DATE . Because of her illness and associated treatment she missed CARDINAL of her primary school education and was unable to participate in sports or other normal childhood activities .","NORP In DATE the applicant became aware of the contents of a report prepared by FAC ( \u201c GPE ) indicating a high incidence of cancers including leukaemia in the children of DATE Island veterans . The applicant is a member of the BNTVA .","She still has regular medical check - ups and is afraid to have children of her own in case they are born with a genetic predisposition to leukaemia .","In DATE an ORG , chaired by Sir ORG , was set up in GPE to investigate reports of an abnormally high number of children contracting leukaemia in the area around the nuclear power reactor at PERSON ( formerly called PERSON ) in northern GPE . The ORG confirmed that childhood leukaemia was more common in this area than normal , but was not able to determine the reason for this . CARDINAL of the members of the ORG , Dr PERSON , went on to conduct CARDINAL studies into the phenomenon . The third , published on CARDINAL DATE ( \u201c the ORG \u201d ) , found a statistical association between the incidence of leukaemia in children from the town of GPE , near PERSON , and relatively high recorded doses of external whole - body radiation received by their fathers employed at the nuclear power plant prior to conception .","Following the publication of this report , CARDINAL cases were brought against the authority responsible for the Sellafield reactor by plaintiffs who had contracted leukaemia and non - Hodgkin \u2019s lymphoma respectively , claiming that their ORG employment at ORG had caused their illnesses . The CARDINAL cases were heard concurrently in ORG , GPE , on DATE between DATE and DATE . Over CARDINAL expert witnesses gave oral evidence before the court and CARDINAL written reports were submitted , primarily directed at the question whether the statistical association found by Dr PERSON could be relied upon and was directly causal , as claimed by the plaintiffs .","Judgment was given by PERSON NORP on DATE .","He found , inter alia , that ORG was \u201c a good study , well carried out and presented \u201d . However , certain technical criticisms which had been made of it were valid so as to diminish confidence in its conclusions and underline the need to seek confirmation from other independent studies before relying on it . He did , however , find that the evidence bore out a strong prima facie association between paternal preconceptional irradiation and childhood leukaemia in GPE , although considerable reserve was necessary before it could be concluded that there was a causal link .","Although the judge was content to assume that there was a heritable component to the plaintiffs\u2019 diseases , he considered that this was very small . He placed particular reliance on studies of the children of survivors of the GPE and GPE bombings , which did not show any significant increase in leukaemia or non - Hodgkin \u2019s lymphoma , and were therefore quite inconsistent with the PERSON hypothesis . CARDINAL of the defendant \u2019s witnesses , Sir PERSON , had referred to research emphasising the role of infection in causing childhood leukaemia , particularly in areas where unusual population mixing had occurred , as was the case in GPE , which had a very mobile population of high socio - economic class situated in a remote rural area . The judge found that a theory of causation based on such factors , combined with chance , was no less plausible than the PERSON hypothesis .","In conclusion , he held that , \u201c on the evidence before me , the scales tilt decisively in favour of the defendants , and the plaintiffs , therefore , have failed to satisfy me on the balance of probabilities that paternal preconceptional radiation was a material contributory cause of the Seascale excess or , it must follow , of [ their diseases ] \u201d ( PERSON v. ORG ; ORG v. ORG [ DATE ] CARDINAL Medical Law Reports CARDINAL ; and see also \u2018 Childhood leukaemia and PERSON : the legal ORG , vol . CARDINAL , no . CARDINAL , pp . CARDINAL ) .","On DATE GPE lodged with the Secretary General of ORG the following declaration :","\u201c \u2026 in accordance with the provisions of LAW , signed at GPE on the CARDINALth of DATE , \u2026 the Government of GPE and GPE recognise , in respect of GPE and GPE only \u2026 , for the period beginning on DATE , and ending on DATE , the competence of ORG to receive petitions submitted to the Secretary General of ORG , subsequently to DATE , by any person , non - governmental organisation or group of individuals claiming , in relation to any act or decision occurring or any facts or events arising subsequently to DATE , to be the victim of a violation of the rights set forth in that Convention and in the LAW thereto \u2026 \u201d","A declaration under LAW , recognising the ORG \u2019s jurisdiction subject to similar conditions , was filed on DATE . Both declarations have been renewed on several occasions subsequently ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2","3"],"non_violated_paragraphs":["2-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23966","languageisocode":"ENG","respondent":"SVN","branch":"ADMISSIBILITY","date":2004,"docname":"NADBISKUPIJA ZAGREBACKA v. SLOVENIA","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress;Mark Villiger","text":["The applicant , ORG ( PERSON ) , is a juristic person whose seat is in GPE , GPE . It is represented before ORG , a lawyer practising in GPE , GPE .","The facts of the case as submitted by the applicant may be summarised as follows .","On DATE ORG , acting through its legal representative , lodged with ORG a claim for restitution of castle PERSON , its outbuildings and surrounding estate together with related movables and works of article It based its claim on sections DATE of the Denationalisation Act DATE . The castle and its estate are located on the territory of DATE GPE and were purchased in DATE by ORG . They were nationalized after the Second World War by NORP authorities . In DATE , the castle and part of the estate were classified as NORP cultural and natural monuments .","On DATE ORG dismissed the claim for restitution on the ground that section CARDINAL of the Denationalisation Act DATE gave the right to restitution of expropriated property to \u201c churches and other religious communities , their institutions and orders , operating on the territory of GPE \u201d on DATE , the date of the entry into force of the LAW . It was generally known , however , that at that time ORG exercised its activities in GPE . ORG was therefore not entitled to restitution . Further , ORG separated and transferred a part of the claim concerning a part of the surrounding land and certain movables to GPE as the competent authority .","On DATE the applicant instituted administrative litigation with ORG , asserting that the claim for the restitution of the property emanated from ORG as part of ORG and the catholic religious community . It was clear that , regardless of its internal organisation , ORG was entitled to restitution under LAW DATE . Moreover , the NORP parish , located on NORP territory , belonged , in ecclesiastical administrative terms , to ORG . This meant that ORG was \u201c operating on NORP territory \u201d within the meaning of section CARDINAL of LAW DATE and was therefore entitled to restitution .","By a judgment of DATE , ORG rejected the applicant 's claim and upheld the decision of ORG , holding that section CARDINAL of LAW DATE , with special reference to the concept of \u201c churches and other religious communities , their institutions and orders , operating on NORP territory \u201d , should be interpreted narrowly .","It transpired from that provision that it was not the universal ORG but its constituent juristic persons operating on the territory of GPE and registered as religious communities under LAW in GPE DATE that were entitled to restitution . ORG , as a much wider entity , did not therefore satisfy this criterion .","ORG also rejected ORG argument that the presence on NORP territory of a single parish belonging to the applicant in accordance with the internal organisation of ORG justified its claim to be operating on NORP territory . It held that this was not sufficient for the applicant to qualify as a NORP juristic person , since the greater part of its activities took place in another ORG where its seat was located and to the jurisdiction of which it was subject .","On DATE the applicant lodged a constitutional appeal with ORG , alleging that ORG was a part of ORG and that its internal organisation was regulated by the Code of canon law ( ORG iuris canonici ) , promulgated on DATE . According to the provisions of this code , the supreme authority regulating the ownership of property was vested in the Pope . Since DATE NORP LAW provided for the separation of ORG and ORG and recognised their equality , this implied recognition of the internal organisation of ORG under the Code of canon law . There can consequently be no doubt that ORG was entitled to restitution . The decision of ORG , moreover , violated the right to own property , as protected by LAW .","On DATE ORG declared the applicant 's constitutional appeal inadmissible , on the ground that it had no jurisdiction to review application of the law by ordinary courts . It found that the applicant essentially contested ORG refusal to take into account the Code of canon law in determining the applicant 's right to restitution . ORG interpretation of the law was reasoned and there was no indication that its conclusions were arbitrary or in breach of human rights and fundamental freedoms . The decision was served on the applicant 's lawyer on DATE .","The LAW ( PERSON , ORG no . CARDINAL )","\u201c The ORG and religious communities shall be separate . Religious communities shall enjoy equal rights ; they shall pursue their activities freely . \u201d","\u201c The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic , social and environmental function . ( ... ) \u201d","The Denationalisation Act DATE ( Zakon o denacionalizaciji , ORG no . CARDINAL , with amendments )","At the time of the adoption of the LAW , its sections CARDINAL , DATE , DATE , DATE and CARDINAL limited the right to restitution of expropriated property to natural persons . The only exception were churches and religious communities , which were expressly recognised as beneficiaries under section CARDINAL of the Act ( see below ) . By ORG decision of DATE ( see below ) , the right to restitution was extended to all domestic juristic persons .","\u201c ( ... )","The conditions and the mode of denationalisation are determined by this LAW . \u201d","\u201c The right to recovery of property is hereby given to churches and other religious communities , their institutions and orders operating on the territory of GPE at the time of the coming into effect of this LAW . \u201d","\u201c ( ... )","ORG shall decide on denationalisation of objects specified in ( ... ) of this LAW ( ... ) \u201d","The Constitutional Court 's case - law","On DATE ORG adopted a decision in a case brought by CARDINAL legal persons ( not party to the proceedings in this case ) who challenged the constitutionality of several provisions of LAW DATE ( U - I-CARDINAL\/CARDINAL ) . It declared that the restriction of the right to restitution to natural persons and only certain legal persons was unconstitutional . By altering the wording of sections CARDINAL , DATE , DATE , DATE and CARDINAL of the LAW , ORG extended the right to restitution to all NORP legal persons . It held that section CARDINAL thus acquired a new meaning . ORG reasoned that :","\u201c ... the provision of section DATE is no longer contrary to the LAW , because it does no longer have the function of providing a legislative basis for denationalisation claims of churches and other religious communities , their institutions and orders . With the annulment ( ... ) of the pertinent legislative provisions , this provision was given a different content . It only means that under this legislative provision the right to restitution of property is accorded only to those churches and other religious communities , their institutions and orders , that were operating on NORP territory at the time of the adoption of LAW CARDINAL ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83413","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":2007,"docname":"CASE OF VOSKUIL v. THE NETHERLANDS","importance":3,"conclusion":"Violation of Art. 10;Violation of Art. 5-1;Remainder inadmissible;Costs and expenses (Convention proceedings) - claim dismissed","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Wilhelmina Thomassen","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG ( arrondissementsrechtbank ) convicted CARDINAL accused , PERSON , PERSON H. , of arms trafficking . In the criminal investigation into the offences at issue , the GPE police had stated that an arsenal of weapons had been found by chance : the caretaker of a building situated on the GPE in GPE had contacted the police when water was leaking from CARDINAL of the flats in the building , whose occupants were absent . With the aid of CARDINAL locksmiths , the police had gained entry to the flat and in the subsequent search for the source of the leak , the weapons had been found .","The accused lodged an appeal against the judgment of ORG .","On DATE the DATE newspaper Sp!ts published CARDINAL articles , written by the applicant and his colleague PERSON , in which doubts were expressed about the amount of coincidence allegedly involved in the finding of the weapons . The article of DATE , entitled \u201c Chance Hit or PERSON ? \u201d ( \u201c PERSON of loepzuiver schot ? \u201d ) , quotes an unnamed policeman of the GPE force as commenting in respect of the flooding , \u201c That is what we made out of it . Sometimes you just need a breakthrough in an investigation \u201d ( \u201c Dat hebben we er maar van gemaakt . CARDINAL heb je net even een doorbraak nodig in je onderzoek \u201d ) .","In the proceedings on appeal against PERSON , PERSON H. , the applicant and PERSON were summonsed to appear as witnesses at the request of the defence . At the first hearing before ORG ( gerechtshof ) on DATE in the cases against PERSON and PERSON , the applicant \u2013 who was assisted by DATE stated inter alia that he knew that the policeman , whom he had quoted verbatim in the article of DATE , had been involved in a previous investigation against PERSON When the applicant was asked whether that policeman was also involved in the investigation of the flat or was aware of that investigation , he invoked his right of non - disclosure ( verschoningsrecht ) . Counsel for the defence argued that both the individual interest of the accused \u2013 on whom a custodial sentence had been imposed as a result of the investigation carried out by the police \u2013 and the interest of criminal justice in the GPE outweighed the applicant 's interest in not disclosing his source . The Advocate General also expressed as his opinion that the applicant could not invoke a right of non - disclosure . He stated in addition that the source , if his name was made known , had nothing to fear from either the police or the public prosecution service .","After having deliberated , ORG considered that , if the statement made by the police officer to the applicant was correct , this might affect the conviction of the accused . It also affected the integrity of the police and judicial authorities . For these reasons , ORG held that the applicant was to reply to the question whether his source had been involved in the investigation of the flat and had been aware of that investigation . The President of the court further reminded the applicant that the court was empowered to order his detention for failure to comply with a judicial order ( gijzeling ) . Upon this , the applicant replied that his source had both been aware of , and involved in , the investigation of the flat .","NORP Asked by counsel for the accused to reveal the identity of his source , the applicant once again invoked his right of non - disclosure . Counsel for the applicant submitted that he was justified in so doing , given that disclosing the identity of his source would render it impossible for the applicant to work as a journalist in the future since sources would no longer approach him . The interests of the journalist and of freedom of expression outweighed other interests . Moreover , as the criminal charges at issue concerned only arms trafficking and not , for example , a multiple homicide , it was disproportionate to require the applicant to name his source . It also went against the principle of subsidiarity , since there were other ways in which the identity of the source could be discovered .","NORP In reply , the Advocate General stated that journalists exposed obvious wrongs ( kennelijke misstanden ) in society . Where they chose to do so , they should also face the consequences . The applicant was the only witness who could clarify whether or not the CARDINAL accused had been wrongly convicted . In the present case , where official records , drawn up on oath of office ( ambtseed ) by police officers , and the integrity of the judicial authorities were at stake , the applicant must reveal the identity of his source . It could not be the case that , in order to trace this identity , every member of the GPE police force should be heard , bearing in mind that all officers in the case against PERSON had already been heard by the investigating judge ( rechter - commissaris ) .","Having deliberated , ORG decided that the applicant was to reveal the identity of his source , for the same reasons as it had held that he had to reply to the question of his source 's involvement in the investigation . The applicant invoked his right to remain silent ( zwijgrecht ) , upon which the court ordered his immediate detention for a maximum of DATE . No legal remedy lay against the decision to detain the applicant ( Article QUANTITY of LAW , \u201c ORG \u201d ) .","When questioned by counsel for the accused , the applicant 's colleague , PERSON , stated that she was aware of the identity of the source , but that she had never met him in person . Having regard to this last fact , as well as to the fact that the journalist who had had direct contact with the source \u2013 i.e. the applicant \u2013 had already been placed in detention , ORG considered that PERSON was not obliged to reveal the identity of the source .","The applicant was served with an unreasoned decision on DATE . On DATE he was handed a copy of the record of the hearing of CARDINAL DATE , containing the decisions made by ORG at that hearing and the reasons for them .","Late on DATE the applicant lodged a request with ORG to be released from detention . Prior to the examination of this request on DATE , the applicant was able to consult his lawyer only once , namely in TIME of DATE . Requests to visit the applicant on CARDINAL , DATE , DATE , ( TIME CARDINAL , DATE and DATE were refused . The request for release was dealt with by ORG in chambers ( raadkamer ) , by the same judges who had ordered his detention .","At the hearing in chambers on DATE , ORG reported that , following the applicant 's statements at the hearing on DATE , a police inspector had carried out an internal investigation , which had revealed that CARDINAL police officers had been involved in both the first and the second investigation into the accused PERSON All these officers had made sworn affidavits to the effect that they had never been in contact with the applicant .","Informed of the outcome of the internal police investigation , the applicant insisted that he did not want to reveal the identity of his source . He stated that he was a journalist and that he might as well give up on that career if he started revealing his sources ; no sources wanting to remain anonymous would any longer be willing to provide him with tip - offs . The applicant was informed by the President of ORG that the right of non - disclosure was not absolute , and that more weighty interests could be at stake . In the present case , long prison sentences had been imposed on the CARDINAL accused , partly on the basis of official records drawn up by police officers . The applicant replied that he was willing to state only that his source was not CARDINAL of the police officers who had made sworn affidavits in the internal police investigation .","Counsel for the applicant argued that the journalist should be the last , rather than the first , means of arriving at the truth . The witnesses , whose examination had been requested by the CARDINAL accused , ought to be heard first . Those witnesses could be confronted with the articles published in Sp!ts as well as with the article which had appeared in the DATE news magazine PERSON on DATE . This latter article had also suggested that the flooding of the flat had been staged , and the author had informed counsel for the applicant that the information contained in the article had not come from the same source as the one relied on by the applicant . Counsel for the applicant further posited that ORG ( Rijksrecherche ) could carry out an investigation of the police force . Finally , it was for ORG to assess the value of the article written by the applicant \u2013 that court could also decide to disregard it .","NORP By decision of DATE , ORG refused the applicant 's request for his detention to be lifted . It repeated that the interests of the accused and of the integrity of the police and the judicial authorities outweighed the interest of the applicant in not having to disclose the identity of his source . Having regard to the outcome of the internal police investigation , as well as to the fact that an appeal made by the police commissioner for the applicant 's source to come forward had not produced any results , ORG considered it unlikely that an investigation by ORG would clarify , within a reasonable time , the cause of the flooding , quite apart from the fact that such an investigation would seriously delay the criminal proceedings against PERSON , PERSON and H. The Court of Appeal similarly rejected the suggestion to hear the witnesses proposed by the defence first , given that those witnesses had already been heard extensively about the point in issue . For these reasons , it could not be held that the detention of the applicant breached the principles of proportionality and subsidiarity .","The Court of Appeal further considered that the applicant 's objections against the order for his detention as given at the hearing of CARDINAL DATE did not require examination since no appeal lay against such order . It also rejected the argument that the order had not been served on the applicant within TIME , since DATE as appeared from the record of that hearing of DATE he had been informed of the order orally . Finally , ORG held that the possibilities for contact between the applicant and his counsel were laid down in penitentiary legislation . It was not for ORG to assess the application of that legislation .","The applicant lodged an appeal on points of law to ORG ( PERSON ) against the decision of ORG .","A second hearing before ORG in the criminal proceedings against PERSON took place on DATE . The applicant once again refused to reveal the identity of his source . Upon this , ORG decided to lift the order for the applicant 's detention . It considered that no support for , or confirmation of , the applicant 's statement that he had received information from a police officer who had been involved in both investigations against the accused PERSON could be found in statements made by other persons and\/or in the contents of documents . On the contrary , the applicant 's statement had been contradicted by CARDINAL police officers . Therefore , no credence could be attached to his statement . This being the case , the applicant 's detention no longer served any purpose .","At the same hearing on DATE , and following ORG decision to lift the applicant 's detention , counsel for the accused PERSON challenged ( wraken ) ORG . A different chamber of ORG upheld that challenge , also on DATE . It held that the opinion that the applicant 's statement was not credible , as expressed by ORG in the criminal proceedings against PERSON H. , might have a bearing on decisions which that court would be called upon to take in the criminal proceedings against PERSON This constituted an exceptional circumstance , providing an important indication for the conclusion that the accused 's fear of a judge being prejudiced against him was objectively justified .","The criminal proceedings against the CARDINAL accused continued on DATE before ORG in a new composition . The applicant was again heard as a witness , as were CARDINAL other journalists who had also published articles about the case against PERSON and the possibility of the flooding having been staged . ORG also heard CARDINAL plumbers and the caretaker of the building .","Subsequent to the decision to lift the order for his detention , the applicant withdrew his appeal on points of law as his release had rendered that appeal devoid of interest .","According to the Government , the criminal proceedings against PERSON , PERSON H. have been brought to a conclusion .","The applicant has submitted photocopies of CARDINAL cuttings from print media .","The first is of a report in the mass circulation DATE newspaper PERSON , dated DATE . It is therein stated that following reports of flooding from a second flat in GPE , police had found another large quantity of weaponry . PERSON , PERSON H. , the accused in the applicant 's case , were not at that time suspected of involvement ; the weapons were thought to belong to a terrorist organisation . The report drew attention to the similarity between the ORG case and this new case as regards the circumstances in which the weapons were found . It cited \u201c police sources \u201d as suggesting that intelligence services , possibly foreign , had engineered events in order to protect their informants .","The second , which is incomplete , is of an article that appeared on DATE in the DATE magazine PERSON . It links the CARDINAL events and cites an unnamed source as stating that they had in fact been engineered by the then ORG ( Binnenlandse Veiligheidsdienst \u2013 \u201c the ORG \u201d ) .","It appears that the report in PERSON and the article in PERSON were both written by journalists other than the applicant .","The applicant has also submitted a printout of a page taken from the internet web site of the GPE DATE newspaper ORG , dated DATE . It quotes the CARDINAL plumbers who were called in to repair the water leak as dismissing as nonsense all allegations that the damage had been caused deliberately ; in actual fact , such leaks were very common in older buildings .","Provisions of the Code of Criminal Procedure relevant to the case provide as follows :","Article CARDINAL","\u201c Persons who , by virtue of their position , their profession or their office , are bound to secrecy may ... decline to give evidence or to answer particular questions , but only in relation to matters the knowledge of which is entrusted to them in that capacity . \u201d","Article CARDINAL","\u201c CARDINAL . If during the interrogation the witness refuses , for no lawful reason , to answer the questions put to him or to take the required oath or affirmation , the court shall , if the investigation urgently so requires , order his detention ( gijzeling ) .","NORP The witness and his counsel shall be heard about the reasons for his refusal before the order is given .","The detention order shall be valid for DATE ; the court shall at the same time order the time at which the witness is to be presented before it anew . No remedy shall lie against the order .","NORP The court shall order the witness released from detention as soon as he has fulfilled his obligations or the investigation at the hearing is closed . It shall however have competence to order the witness released from detention whatever the state of the investigation , including at the request of the witness . LAW shall apply .","Articles CARDINAL and CARDINAL shall apply . \u201d","Articles CARDINAL , CARDINAL and CARDINAL , which are thus declared applicable to witnesses at the trial hearing , per se apply to witnesses heard by an investigating judge .","Article CARDINAL \u00a7 CARDINAL provides , in relevant part , that the detained witness may appeal within DATE after the official notification in writing of the decision against any refusal to order his release from detention and may appeal on points of law to ORG against any such refusal given on appeal .","Article CARDINAL provides that the witness shall receive notification in writing within TIME of all decisions to order or extend his detention or to refuse his release from detention .","Article CARDINAL provides that the witness shall have the right to consult counsel . His counsel shall have unrestricted access ( vrije toegang ) to him , be allowed to see him in private and exchange confidential correspondence with him , subject to detention rules and provided that the criminal investigation in which his evidence was sought not be delayed . Counsel shall also have access to any official records relating to the questioning of the witness and , if the criminal investigation admits of it , the remainder of the case file .","Although these provisions by their wording apply to proceedings at first instance before ORG , by virtue of Article CARDINAL they apply by analogy to appeal proceedings before ORG .","The Guidelines on the position of the press in relation to police action ( PERSON over de positie van de pers bij politieoptreden ) were issued by the Minister of ORG ( Minister PERSON ) on DATE . At the time of the events complained of , they provided , in relevant part :","\u201c CARDINAL . Seizure of journalistic material","Journalistic material may be seized in cases described in LAW . Journalists may be faced with seizure in CARDINAL ways .","NORP The police may , on the instructions of a public prosecutor ( officier van justitie ) or an assistant public prosecutor ( hulpofficier van justitie ) or not as the case may be , arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot .","There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed . In this situation , the journalist is arrested like any ordinary citizen .","If a prosecution ensues , it will be for the independent judge eventually to decide what is to be done with any seized DATE and unpublished \u2013 material .","B. Journalistic material may also be seized on the orders of an independent judge ( the investigating judge ) , if such material may \u2013 in the judge 's opinion \u2013 serve to clarify the truth in a preliminary judicial investigation ( gerechtelijk vooronderzoek ) .","... \u201d","This section of the Guidelines was replaced with effect from DATE by the \u201c Directive on the application of coercive measures to journalists \u201d ( Aanwijzing toepassing dwangmiddelen bij journalisten ) , issued by ORG ( College van procureursgeneraal ) . This directive makes extensive reference to the ORG 's case - law . If the protection of a journalist 's source is at issue , the use of coercive measures must be in accordance with LAW with due regard to requirements of proportionality and subsidiarity .","In a civil case \u2013 brought by persons named in connection with alleged bribery against CARDINAL journalists who had allegedly made use of information leaked by officials DATE ORG , reversing earlier case - law , held ( judgment of DATE , PERSON ( GPE Law Reports ) DATE , no . CARDINAL ) :","\u201c It follows from the said judgment [ i.e. PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL facie case must be made out by the person who calls the journalist as a witness .","...","It is apparent from the decision of ORG and the other documents contained in the case file that the present case is characterised in that , as stated by [ the plaintiffs ] , the ' leaked ' information relates to a criminal investigation into alleged bribery of a number of local government officials in the province of GPE , in that information relating to the supposed involvement of [ the plaintiffs ] in such cases of bribery has already been made public and that [ the plaintiffs ] have sued [ the newspaper ] ORG for damages which they claim resulted therefrom ( ... ) . Accordingly , [ the plaintiffs ] have claimed no other interest in the disclosure of [ the defendants ' ] sources than that they wish to know who has ' leaked ' , because they wish eventually to sue the ORG and the persons concerned themselves for damages and also to obtain an injunction against the persons concerned to restrain them from any further ' leaking ' . However , the said judgment of ORG compels ORG to find that this interest in itself is insufficient to counterbalance the weighty public interest which belongs to the protection of [ the defendants ' ] sources . \u201d","Recommendation No . R(CARDINAL ) CARDINAL on the right of journalists not to disclose their sources of information was adopted by ORG DATE . It states , in relevant part :","\u201c [ ORG ] Recommends to the governments of member States :","NORP to implement in their domestic law and practice the principles appended to this recommendation ,","NORP to disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and","NORP to bring them in particular to the attention of public authorities , police authorities and the judiciary as well as to make them available to journalists , the media and their professional organisations .","Appendix to Recommendation No . R ( DATE ) CARDINAL","Principles concerning the right of journalists not to disclose their sources of information","Definitions","For the purposes of this Recommendation :","a. the term ' journalist ' means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication ;","b. the term ' information ' means any statement of fact , opinion or idea in the form of text , sound and\/or picture ;","c. the term ' source ' means any person who provides information to a journalist ;","d. the term ' information identifying a source ' means , as far as this is likely to lead to the identification of a source :","i. the name and personal data as well as voice and image of a source , ii . the factual circumstances of acquiring information from a source by a journalist , iii . the unpublished content of the information provided by a source to a journalist , and iv . personal data of journalists and their employers related to their professional work .","Principle CARDINAL ( Right of non - disclosure of journalists )","Domestic law and practice in member GPE should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with LAW ( hereinafter : the Convention ) and the principles established herein , which are to be considered as minimum standards for the respect of this right .","ORG Right of non - disclosure of other persons )","Other persons who , by their professional relations with journalists , acquire knowledge of information identifying a source through the collection , editorial processing or dissemination of this information , should equally be protected under the principles established herein .","Principle CARDINAL ( Limits to the right of non - disclosure )","a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW , paragraph CARDINAL of the Convention . In determining whether a legitimate interest in a disclosure falling within the scope of LAW , paragraph CARDINAL of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member GPE shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .","b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :","i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and","ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :","- an overriding requirement of the need for disclosure is proved ,","- the circumstances are of a sufficiently vital and serious nature ,","- the necessity of the disclosure is identified as responding to a pressing social need , and","- member GPE enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .","c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked .","ORG Alternative evidence to journalists ' sources )","In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person , authorities should consider , for the purpose of establishing the truth or otherwise of the allegation , all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist .","Principle CARDINAL ( Conditions concerning disclosures )","a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure .","b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested .","c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with LAW .","d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority .","e. Where journalists respond to a request or order to disclose information identifying a source , the competent authorities should consider applying measures to limit the extent of a disclosure , for example by excluding the public from the disclosure with due respect to LAW , where relevant , and by themselves respecting the confidentiality of such a disclosure .","Principle CARDINAL ( Interception of communication , surveillance and judicial search and seizure )","a. The following measures should not be applied if their purpose is to circumvent the right of journalists , under the terms of these principles , not to disclose information identifying a source :","i. interception orders or actions concerning communication or correspondence of journalists or their employers ,","ii . surveillance orders or actions concerning journalists , their contacts or their employers , or","iii . search or seizure orders or actions concerning the private or business LOC , belongings or correspondence of journalists or their employers or personal data related to their professional work .","b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions , although this might not have been the purpose of these actions , measures should be taken to prevent the subsequent use of this information as evidence before courts , unless the disclosure would be justified under LAW .","ORG against self - incrimination )","The principles established herein shall not in any way limit national laws on the protection against self - incrimination in criminal proceedings , and journalists should , as far as such laws apply , enjoy such protection with regard to the disclosure of information identifying a source . \u201d","For the precise application of the ORG , the explanatory notes clarify the meaning of certain terms . As regards the term \u201c sources \u201d the explanation reads as follows :","\u201c c. Source","Any person who provides information to a journalist shall be considered as his or her ' source ' . The protection of the relationship between a journalist and a source is the goal of this Recommendation , because of the ' potentially chilling effect ' an order of source disclosure has on the exercise of freedom of the media ( see , Eur . Court H.R. , PERSON v. GPE , DATE , para . CARDINAL ) . Journalists may receive their information from all kinds of sources . Therefore , a wide interpretation of this term is necessary . The actual provision of information to journalists can constitute an action on the side of the source , for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures . Information shall also be regarded as being ' provided ' when a source remains passive and consents to the journalist taking the information , such as the filming or recording of information with the consent of the source . \u201d"],"violated_articles":["10","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22414","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"THE GYPSY COUNCIL and OTHERS v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicants are :","ORG , ORG , an organisation affiliated to ORG , has its main office in GPE , GPE ;","ORG , an organisation based in GPE , GPE ;","PERSON , an NORP citizen born in DATE and resident in GPE ;","PERSON , a NORP citizen born in DATE and resident in GPE , GPE .","The first and second applicants are organisations which represent the interests of the gypsy \/ romany community of which the third and fourth applicants are members .","They are represented before ORG , practising in GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","The Horsmonden Horse Fair is a significant cultural and social event in the life of PERSON community in GPE . It has been held at FAC in GPE on DATE in DATE annually for DATE , at least . The applicants claim that there is good reason to think that the event has taken place for DATE . The majority of those who attend the fair are gypsies .","On DATE , ORG that occupies FAC decided that the fair was to be henceforth cancelled . In DATE , pursuant to LAW , as amended by ORG \u201c the DATE LAW ) , ORG applied to the Chief Constable for the necessary steps to be taken . In a letter dated DATE , the Chief Constable applied to ORG ( \u201c the ORG \u201d ) under section CARDINALA of the DATE Act for a prohibition order to be made . He stated inter alia that he believed that a trespassory assembly of CARDINAL or more people was likely to be held on FAC and :","\u201c Based on previous years\u2019 experience , concerns of residents and intelligence , I reasonably believe that serious disruption to the life of the community will result because of :","i. Incidents related to feuding groups of \u2018 ORG in DATE , CARDINAL and DATE , with an escalating level of policing required to prevent serious crime ( CARDINAL officers in DATE ) .","ii . NORP The racing of horses on the highway .","iii . The illegal and indiscriminate parking of cars throughout the village ...","iv . Concerns over public health due to poor hygiene , litter , discarded nappies and clearing up ;","v. NORP - social behaviour by visitors .","vi . Closure of local public houses and shops for fear of theft .","vii . Necessary road closures contributing to a negative financial impact in the area .","viii . The threat that \u2018 ORG will defy the cancellation .","ix . Fear expressed by residents ...","x. A background level of increased crime which occurs over the event DATE .","xi . NORP The normal social interactions between villagers being suspended as a consequence of the sheer volume of visiting \u2018 travellers\u2019 . \u201d","The Chief Constable concluded that this made it necessary to apply for the prohibition order so that effective policing could be carried out .","At a council meeting on DATE , ORG accepted the recommendation of the director of operational services that ORG should seek the approval of the Secretary of ORG in the making of an order . The main reason that ORG gave for issuing LAW was that the fair \u201c may result in serious disruption to the life of the community in the vicinity of the prohibited area . \u201d","On behalf of the Secretary of ORG , the ORG Minister , with the recommendation of the senior officer of ORG public order section , gave consent to the application for the Prohibition Order . The Order was then issued on DATE in accordance with section CARDINALA of ORG prohibiting any \u201c trespassory assembly \u201d within a QUANTITY radius of FAC beginning at TIME on DATE , DATE and terminating at TIME on DATE , DATE .","Notwithstanding the prohibition order , on DATE , the GPE police gave consent to the conduct of a limited parade on DATE , DATE , in PERSON .","In response to the prohibition order , the first applicant in this case , ORG , issued proceedings in ORG applying for judicial review on DATE . The applicant sought to quash the prohibition order , claiming that the Secretary of ORG and ORG had made their decision to issue the order by considering both irrelevant factors and failing to consider factors that were in fact relevant . They alleged that there had been no evidence to support claims of risk to safety or disruption to the local community and no consideration given to alternative ways in which the fair might have been staged on the site . Among the relevant factors that the first applicant claimed the respondents failed to take into account were the applicants\u2019 rights under LAW , DATE , and CARDINAL of LAW and LAW for ORG .","The case was heard on an expedited basis before Deputy Judge PERSON , who granted permission to apply for judicial review and heard the application on DATE . Having heard the parties , the Deputy Judge dismissed the application seeking to quash the prohibition order . He found that sufficient relevant information was before both ORG and the Home Secretary to enable them to properly exercise their discretion in deciding whether to issue the order . The letter of the Chief Constable set out the concerns that serious disruption to the community would result . He stated that ORG were entitled to think that the need to avoid disruption to the local settled community should take priority . He considered that the fact that ORG could go to an alternative site QUANTITY away at FAC , which was approved by the local authority and the police , served to limit the impact upon the Romany Gypsy community . He also found that there was no basis for the argument that LAW was not taken into account . He noted that ORG CARDINAL and CARDINAL of the Convention recognised that a balance had to be struck between the interests of the individual , in this case , the interests of the gypsy community and the interests of society generally , but found no reason on that basis to interfere on public law grounds with the assessment reached by the ORG and Secretary of ORG in light of the advice from the Chief Constable . He rejected the first applicant \u2019s request for leave to appeal . The first applicant was advised by counsel that no further remedies were available .","Subsequently , on DATE , DATE , a parade took place at PERSON , which was limited by the police to CARDINAL persons while measures taken by the police controlling entry to the village severely restricted the numbers of persons from the gypsy community wishing to watch the parade . An alternative fair apparently took place peacefully DATE at FAC attended by CARDINAL gypsies .","Section CARDINALA of LAW CARDINAL as amended by ORG DATE","\u201c ( CARDINAL ) If at any time the chief office of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only limited right of access and that the assembly--","( a ) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public \u2019s rights of access , and","( b ) may result\u2013","( i ) in serious disruption to the life of the community , or","( ii ) where the land , or a building on monument on it , is of historical , architectural , archaeological or scientific importance , in significant damage to the land , building or monument ,","he may apply to the council for the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or part of it , as specified .","( CARDINAL ) On receiving such an application , a council may--","( a ) in GPE and GPE , with the consent of the Secretary of ORG , make an order either in the terms of the application or with such modifications as may be approved by the Secretary of ORG ...","...","In this section and sections CARDINALB and CARDINALC \u2013 \u2018 ORG means an assembly of CARDINAL ;","...","\u2018 ORG , in relation to a right of access by the public to land , means that their use of it is restricted to use for a particular purpose ( as in the case if a highway or road ) or is subject to other restrictions ;","\u2018 occupier\u2019 means\u2013","( a ) in GPE and GPE , the person entitled to possession of the land by virtue of an estate or interest held by him ; ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59450","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2001,"docname":"CASE OF HUGH JORDAN v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 2;No violation of Art. 6;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza;Simon Brown","text":["The facts of the case , in particular concerning what happened when PERSON was shot on DATE , are in dispute between the parties .","On DATE , the applicant \u2019s son , PERSON , aged DATE , was shot and killed in GPE by an officer of ORG ( the ORG ) , later identified as PERSON","The official statement issued by the ORG to the media indicated that an ORG unit had pursued a car on FAC and brought it to a halt . On stopping the car , the officers had fired several shots at the driver , fatally wounding him a short distance from where his car had been abandoned . No guns , ammunition , explosives , masks or gloves had been found in the car and the driver , PERSON , had been unarmed .","NORP The post mortem report found CARDINAL entry wounds in PERSON back and one in the back of the left arm , and noted a bruise on the face and shin . It concluded that he had been struck by CARDINAL bullets which had come from behind and to the left . There was nothing to indicate the range .","The shooting was witnessed by CARDINAL civilians , who on DATE made statements to ORG ( ORG ) , an independent non - governmental human rights organisation based in GPE . The CARDINAL witnesses gave the following account of the shooting , which is not accepted by the Government .","The CARDINAL civilians were walking together along FAC and passed PERSON station at TIME . They noticed QUANTITY unmarked police cars parked with their headlights dimmed , each containing CARDINAL ORG officers : CARDINAL car was red and the second dark blue \/ green .","As they proceeded along the road , they heard a crash behind them and turned to see on the opposite side of the road the red police car pulling alongside a car ( PERSON ) and ramming it up onto the footpath . The red police car came to a halt in front of the car while the dark blue \/ green police car pulled up behind hitting it in the rear . The CARDINAL civilians stopped and had an unobstructed view across the road . PERSON emerged from the immobilised car , and appeared shaken . He staggered across the road towards the QUANTITY men followed by QUANTITY police officers . As PERSON reached the white line in the centre of the road , an officer QUANTITY away fired a number of shots . The civilians heard no warning shout or challenge given by any of the officers and saw nothing in PERSON hands or anything threatening in his actions . Some of the shots struck PERSON . He staggered a little further then turned to face the police who , when they caught up with him , verbally abused him and pushed his face into the ground where he was kicked and searched . The police carried out a search of the car .","The CARDINAL witnesses followed the ambulance which took PERSON to hospital where they stated that they were subjected to hostile and threatening remarks by members of the security forces .","According to the applicant , prior to the release of the official ORG statement ( see paragraph CARDINAL above ) , there were a number of unofficial reports widely circulated in the media to the effect that gloves , masks , guns and bombs had been found in the car , and CARDINAL report to the effect that PERSON was a former NORP prisoner who had been charged in DATE with possession of explosives . This information was not correct . PERSON did however receive an IRA funeral and , in ORG , he was described as a Volunteer of ORG of the IRA and it was said that he had died on active service .","An official ORG statement stated that a deputy superintendent of the ORG from outside GPE would investigate the shooting . In a later statement , it was announced that ORG ( the ORG ) would supervise the ORG investigation .","On DATE , at TIME , a detective chief inspector of the ORG criminal investigation department interviewed ORG , in the presence of his solicitor and a representative of the ORG . Sergeant A , member of an HMSU unit , stated as follows .","He had been at a briefing at TIME DATE before concerning reports of a planned distribution of kit and munitions , including weapons , explosives and mortars , by ORG in GPE . A surveillance operation was to be mounted and he was in charge of the teams on the ground which were going to intervene if possible to intercept the munitions . He was carrying a FAC and Wesson CARDINAL pistol and a MPCARDINAL ORG . At CARDINAL - CARDINAL.CARDINAL p.m. , following reports of a car acting suspiciously at FAC leisure centre , he and his teams left GPE police station to wait at NORP police station . They heard reports there of a build up of activity at the back of QUANTITY houses in GPE street , which were under surveillance . The red car from the leisure centre arrived in GPE street . Sergeant A thought that this was possibly the re - supply of terrorist equipment taking place . He was told by radio to gather his people together \u2013 car crews with call signs CARDINAL , CARDINAL , DATE and DATE . When the red Orion left GPE street , he and his crews left the police station but were called back almost immediately to allow the red Orion to make its run . A red ORG left GPE street and they were told to allow that to run . News arrived that the red Orion had come back to GPE street . Sergeant A was told on the radio that the next time the red Orion came out they were to intercept it . He split his crews in CARDINAL , his own team ( call signs CARDINAL and DATE ) to approach from the city side and the crews with call signs CARDINAL and DATE to approach from the country side .","When the red Orion came past the QUANTITY police cars , Sergeant A saw that there was one driver . They pulled out behind it . His driver flashed his lights at it . They switched on their police klaxon but had no blue flashing light on the car and none of them were wearing their police caps . Sergeant A \u2019s car drew level with the Orion and he signalled for it to pull over . The Orion slowed falling behind and then shot past on the passenger side , accelerating down FAC in the direction of the city . Sergeant A told his driver to pursue him and force him off the road . The car possibly reached the speed of CARDINAL , QUANTITY at the fastest . They were in a built up area , in traffic so it was difficult to judge . Their klaxon was going throughout . They drew parallel with the red Orion and nudged it once . The impact was hard enough to force the Orion partly up on the pavement and stop it . Sergeant A \u2019s own car stopped partly on the pavement in front of the Orion . The lock of his door had broken on the impact . He burst out of the door onto the pavement moving towards the Orion . He saw the driver running across the road from left to right at an angle away from him . He was looking over his right shoulder in Sergeant A \u2019s direction as he ran . Sergeant A said that he called out \u201c Police . Halt . \u201d or \u201c Halt . Police . \u201d","The driver of the ORG turned around towards him . He could not see the man \u2019s hands which were below his waist . His vision was either obscured by the roof of the police car in front of him or the arrival of the other black car ( crew CARDINAL ) on the scene . As he could not see the man \u2019s hands , he thought that his own life or the life of his own driver might be at risk . He feared the man was armed as he had spun round so quickly . He fired a short burst from his MPCARDINAL at the trunk of the man . When he made the split second decision to fire , the man was facing him but he could not say whether he had turned or moved in some other way . He was aware of other police officers shouting . He ran towards the driver who ran towards the footpath on the far side of the road . Constable F was shouting at him to get down on his knees . The driver fell flat , toppling over . It was realised at that stage that he was seriously injured .","Sergeant A quickly searched the car , while other security force personnel administered first aid to the driver . Either base , or he himself , suggested that the police officers move to GPE street . The military took over the first aid . He had directed most of the police officers to leave the scene as soon as they had arrived , including crew CARDINAL in their car . He did not know that car CARDINAL had come into contact with the Orion or the deceased . He arrived back at the station at CARDINAL to TIME There was a TIME debriefing in which he participated . He also discussed the matter casually with the others who were there . He was instructed to hand in his weapon at about that time .","On DATE , a detective inspector carried out a second interview of ORG , in the presence of his solicitor . Further questions were put about his position and actions at the time of the shooting . He recalled that he had had a clear view of the deceased from the waist up . When the deceased turned to face him , he did not make any movements towards him . His arms remained down though . When asked to explain precisely why he had considered that his life was in danger , given that he could not confirm that the deceased was armed , PERSON replied that it had been a prolonged operation lasting TIME involving serious terrorist activity . The red Orion had reacted in a very aggressive manner in driving at excessive speed on a busy road . When the Orion was stopped , the driver ran away and when he was ordered to stop , he turned towards the Sergeant in what the Sergeant interpreted as an aggressive manner . His arms were down and his hands out of sight . In that short space of time , he formed the opinion that the deceased was a threat to his life . The man \u2019s actions had not been of someone about to surrender . He was certain that there were no viable alternatives to discharging his own weapon .","Forensic examinations of the cars involved in the incident were carried out . ORG were conducted with the other police officers and army personnel involved in the incident .","According to the statements of police officers D , E and F in the car call sign CARDINAL , they had been pursuing the red Orion car close behind the red police ORG in which ORG was driving . When the Orion stopped , their car pulled up behind . As they were stopping , the driver was running from the car and either he ran into them or their car struck him , clipping him on the right thigh . The driver span round towards call sign CARDINAL . At that point , there was a short burst of gunfire . Their car had also at some point made contact with the red Orion in the rear . Only officer D heard shouting coming from the call sign CARDINAL direction before the shooting . Shortly after moving their car to facilitate the flow of traffic , they had been directed to GPE street .","In his statement of DATE , ORG , from the car call sign DATE , stated that on arrival at the scene he had instructed car CARDINAL to be moved to facilitate the movement of a bus which had stopped very close to the injured man . He was not aware that car CARDINAL might have struck the red Orion car or the deceased . The car was only moved back slightly and he was not involved in directing its complete removal from the scene .","Inspector M gave a statement on DATE that , on being satisfied that the injured man was receiving first aid and that the red Orion had been secured , he gave directions for all the HMSU police teams to go to GPE street for searches . Some sort of device has been located there .","During the investigation , appeals were made by the police in newspapers and broadcast media for potential eyewitnesses to come forward . A number of civilians made statements to the police and subsequently gave evidence at the inquest . In DATE , the ORG concluded its inquiry . Its report on the investigation was submitted to ORG ( the ORG ) on DATE .","On DATE , the ORG wrote to the applicant \u2019s family expressing the view that the ORG report of CARDINAL DATE concerning the criminal investigation into the shooting was satisfactory . On DATE , the ORG wrote to the applicant advising him that the papers had been sent to the ORG . The applicant and his family were not however provided with any indication as to the nature of the ORG \u2019s findings .","On DATE , the ORG \u2019s department issued to the Chief Constable of the ORG a direction of \u201c no prosecution \u201d in respect of the fatal shooting of PERSON . It had been concluded that the evidence was insufficient to warrant the prosecution of any person .","On DATE , having considered a submission by the ORG , the ORG notified the ORG that the direction of \u201c no prosecution \u201d should stand .","On DATE , the ORG wrote to the applicant to inform him that the report on the shooting had been sent to the ORG .","On DATE , the ORG wrote to the applicant to inform him that after careful scrutiny of all the details it was of the opinion that the evidence was insufficient to warrant the preferment of disciplinary charges against the police officers concerned .","On DATE , the ORG notified the Coroner that the ORG had directed \u201c no prosecution \u201d . Following that decision , the Coroner decided to hold an inquest .","On DATE , the Coroner received the case papers from the ORG .","On or CARDINAL DATE , the Coroner wrote to interested parties informing them that the inquest would begin on DATE .","Prior to the commencement of the inquest , the Secretary of ORG issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest on grounds of national security , and made an application that the identities of certain military witnesses be withheld and that they should give their evidence from behind a screen .","On DATE , the Coroner held a preliminary hearing at which he decided to :","( a ) protect certain categories of information from disclosure on the grounds of national security ;","( b ) protect the identity of CARDINAL military witnesses , Soldiers V , W and X by withholding their names and screening them from all except the Coroner , the jury and the legal representatives of the interested parties ; and","( c ) protect the identity of certain ORG officers , including ORG ( the officer who fired the shots which killed PERSON ) by withholding their names .","On DATE , the Secretary of ORG for GPE issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest as compromising the integrity of ORG intelligence operations .","On DATE , the Coroner \u2019s inquest commenced . The applicant and his family were represented by a solicitor and counsel . The ORG were represented . The Coroner sat for DATE , hearing evidence from CARDINAL witnesses , including the applicant , CARDINAL civilians , Soldiers V , W and GPE , QUANTITY police officers and a pathologist . These witnesses were subject to cross - examination . Sergeant A had informed the Coroner that he would not appear .","On or DATE , the ORG provided the Coroner with a statement which they had received from another civilian witness , a driver of a black taxi who had been at the scene .","On DATE , the Coroner rejected the request by the applicant \u2019s counsel to withdraw the protection of the identities of the ORG witnesses .","The proceedings were adjourned on DATE , at the request of PERSON family , to enable the ORG , in the light of new evidence from the taxi driver , to reconsider the decision whether or not to bring a prosecution . The Coroner wrote to the ORG informing him that new evidence had come to light which should be considered .","On DATE , the ORG decided that the evidence remained insufficient to warrant the prosecution of any person in relation to PERSON death . He requested that any further evidence adduced at the inquest relevant to his functions be reported to him .","On DATE , the applicant \u2019s legal representatives were informed by the ORG that his decision not to bring a prosecution still stood .","On DATE , the applicant \u2019s legal representatives made an application for the Coroner to discharge himself from the Inquest on the grounds that he was not conducting the inquest fairly . The ORG refused the application .","On DATE , the Coroner wrote to the interested parties informing them that the inquest would resume on DATE .","On DATE , the applicant \u2019s legal representatives commenced judicial review proceedings seeking declarations that certain rulings given by the Coroner in the course of the inquest were wrong in law . Leave was granted on DATE . The applicant sought orders of certiorari to quash inter alia ( a ) the Coroner \u2019s refusal to give the next of kin access to the statements of the witnesses before they gave evidence at the inquest and ( b ) the decision of the Coroner to grant anonymity to ORG witnesses . Legal aid was granted to the applicant for this purpose . The Coroner adjourned the inquest pending these proceedings .","Leave was granted to bring judicial review proceedings against the Coroner on DATE .","The judicial review application was heard on CARDINAL and DATE . By judgment of DATE , Lord Justice PERSON refused the applicant \u2019s claims . In doing so he had regard to the inquisitorial nature of inquest proceedings . He referred to the remarks of PERSON in Ex parte PERSON :","\u201c A coroner \u2019s inquest is an inquisitorial procedure with a very limited objective indeed . The objective is set out in rule CARDINAL of LAW DATE . It is limited to ascertaining the following matters : who the deceased was ; how , when and where the deceased came by his death . There is a further specific limitation provided by LAW DATE . These provide by rule CARDINAL that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or of civil liability .","It is quite true that the coroner may allow interested parties to examine a witness called by the coroner . But that must be for the purpose of assisting in establishing the matters which the inquest is directed to determine . It is not intended by rule CARDINAL to widen the coroner \u2019s inquest into adversarial fields of conflict . \u201d","Lord Justice PERSON also referred to the statutory background governing the procedure at inquest : Section CARDINAL(CARDINAL ) of LAW ( GPE ) DATE providing that the jury shall give their verdict in the form prescribed by rules ,","\u201c setting forth , so far as such particulars have been proved to them , who the deceased person was and how , when and where he came to his death . \u201d","and LAW of ORG and Procedure ) Rules DATE providing :","\u201c neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability ... \u201d","On DATE , the applicant appealed against the decision of Lord Justice PERSON . The appeal was dismissed by ORG of GPE on DATE . The applicant \u2019s application for leave to appeal to ORG was refused on DATE . ORG also refused leave on DATE .","The inquest was due to recommence on DATE . However , it was adjourned on DATE by the Coroner , after consultation with the parties , pending the outcome of a judicial review application in the High Court concerning the availability of legal aid for legal representation for the family of the deceased at inquests .","On DATE , final judgment was given in the case of PERSON v. the Secretary of ORG and ORG , in which a challenge concerning the unavailability of legal aid for inquests was dismissed .","DATE . On DATE , the Coroner informed the interested parties that he intended to resume the inquest on DATE .","On DATE , the Coroner adjourned the inquest pending the applicant \u2019s application for the disclosure of documents by the Chief Constable of the ORG in the wake of ORG issued on DATE on deaths in police custody which recommended , inter alia , that material supplied by the police to the Coroner should be made available to the families of deceased persons ( see paragraphs CARDINAL and CARDINAL below ) .","On DATE , the applicant was informed that the Chief Constable would provide copies of the statements of the witnesses who were to appear at the inquest and copies of any statements which the Coroner proposed to read out .","On DATE , the applicant was granted leave to bring judicial review proceedings against the Chief Constable , challenging his decision not to provide further documents to the applicant .","When the inquest resumed , the Coroner proposed to call , in addition to the witnesses who gave evidence in DATE , CARDINAL police officers and Soldier Y involved in the anti - terrorist operation in which PERSON died , forensic experts and QUANTITY police officers involved in the ORG investigation into the shooting .","On a date unspecified DATE and DATE , the applicant was provided with the witness statements of persons whom the Coroner has decided should be called to give evidence at the inquest .","The applicant was granted legal aid to pursue a civil action for compensation in ORG . On DATE , the applicant instituted civil proceedings , alleging death by wrongful act .","On DATE , the applicant served a statement of claim in the civil proceedings . On DATE ORG served their defence , together with a request for further and better particulars of the statement of claim . The applicant did not reply to this request until a date unspecified subsequent to CARDINAL DATE .","On DATE , the Crown Solicitor wrote to the applicant seeking consent to a remittal of the civil action to trial .","The applicant stated that the case is currently at the discovery stage but that this can not be concluded until the inquest is terminated .","Section CARDINAL of LAW ( GPE ) DATE provides inter alia :","\u201c CARDINAL . A person may use such force as is reasonable in the circumstances in the prevention of crime , or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large . \u201d","Self - defence or the defence of others is contained within the concept of the prevention of crime ( see e.g. Smith and Hogan on Criminal Law ) .","The conduct of inquests in GPE is governed by LAW ( GPE ) DATE and ORG and Procedure ) Rules ( GPE ) DATE . These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner , who then has the power to hold an inquest , with or without a jury , for the purpose of ascertaining , with the assistance as appropriate of the evidence of witnesses and reports , inter alia , of post mortem and forensic examinations , who the deceased was and how , when and where he died .","Pursuant to LAW , every medical practitioner , registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner ( section CARDINAL ) . Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing ( section CARDINAL ) . Whenever a dead body is found , or an unexplained death or death in suspicious circumstances occurs , the police of that district are required to give notice to the Coroner ( section CARDINAL) .","Rules CARDINAL of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased .","Where the Coroner decides to hold an inquest with a jury , persons are called from the Jury List , compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials .","The matters in issue at an inquest are governed by LAW and QUANTITY of LAW :","\u201c CARDINAL . The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters , namely : -","( a ) who the deceased was ;","( b ) how , when and where the deceased came by his death ;","( c ) the particulars for the time being required by ORG ) Order DATE to be registered concerning his death .","Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in DATE foregoing Rule . \u201d","The forms of verdict used in GPE accord with this recommendation , recording the name and other particulars of the deceased , a statement of the cause of death ( e.g. bullet wounds ) and findings as to when and where the deceased met his death . In GPE and GPE , the form of verdict appended to the English Coroners Rules contains a section marked \u201c conclusions of the jury \/ coroner as to the death \u201d in which conclusions such as \u201c lawfully killed \u201d or \u201c killed unlawfully \u201d are inserted . These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act , but no finding is made that any identified person was criminally liable . The jury in GPE and GPE may also append recommendations to their verdict .","NORP However , in GPE , the Coroner is under a duty ( section CARDINAL(CARDINAL ) of the Prosecution of Offences Order ( GPE ) DATE ) to furnish a written report to the ORG where the circumstances of any death appear to disclose that a criminal offence may have been committed .","Until recently , legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges . Legislation which would have provided for legal aid at the hearing of inquests ( ORG , Advice and Assistance ( Northern Ireland ) Order DATE , Schedule CARDINAL paragraph CARDINAL ) has not been brought into force . However , on DATE , the Lord Chancellor announced the establishment of an Extra - Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in GPE . In DATE , he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding . This included inter alia consideration of financial eligibility , whether an effective investigation by the ORG was needed and whether the inquest was the only way to conduct it , whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased .","DATE . The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest ( section CARDINAL of LAW ) and he may allow any interested person to examine a witness ( Rule CARDINAL ) . In both GPE and GPE and GPE , a witness is entitled to rely on the privilege against self - incrimination . In GPE , this privilege is reinforced by Rule CARDINAL(CARDINAL ) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest .","In relation to both documentary evidence and the oral evidence of witnesses , inquests , like criminal trials , are subject to the law of public interest immunity , which recognises and gives effect to the public interest , such as national security , in the non - disclosure of certain information or certain documents or classes of document . A claim of public interest immunity must be supported by a certificate .","Rules DATE and DATE ( see above ) follow from the recommendation of ORG :","\u201c ... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires , without deducing from those facts any determination of blame ... In many cases , perhaps the majority , the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death ; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and CARDINAL which appears to judge the issue itself . \u201d","Domestic courts have made , inter alia , the following comments :","\u201c ... It is noteworthy that the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but \u2018 how ... the deceased came by his ORG , a far more limited question directed to the means by which the deceased came by his death .","... [ previous judgments ] make it clear that when ORG stated that one of the purposes of an inquest is \u2018 To allay rumours or suspicions\u2019 this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death . \u201d ( Sir PERSON , ORG , NORP v the Coroner for GPE and GPE ex parte PERSON , DATE , unreported )","\u201c The cases establish that although the word \u2018 how\u2019 is to be widely interpreted , it means \u2018 by what ORG rather than in what broad circumstances ... In short , the inquiry must focus on matters directly causative of death and must , indeed , be confined to those matters alone ... \u201d ( ORG , ORG , NORP v. Coroner for LOC of GPE , ex parte PERSON and others , ( DATE ) CARDINAL JP CARDINAL )","\u201c ... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt . The procedure and rules of evidence which are suitable for CARDINAL are unsuitable for the other . In an inquest it should never be forgotten that there are no parties , no indictment , there is no prosecution , there is no defence , there is no trial , simply an attempt to establish the facts . It is an inquisitorial process , a process of investigation quite unlike a trial ...","It is well recognised that a purpose of an inquest is that rumour may be allayed . But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention . It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation . He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him . \u201d ( Lord Lane , ORG , R v. GPE ex parte PERSON ( DATE ) CARDINAL SJ CARDINAL )","There was no requirement prior to DATE for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest . Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings , as the relevant witness came forward to give evidence .","Following the recommendation of ORG No . CARDINAL ( concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty ) advised Chief Constables of police forces in GPE and GPE to make arrangements in such cases for the pre - inquest disclosure of documentary evidence to interested parties . This was to \u201c help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted , and that they and their legal representatives will not be disadvantaged at the inquest \u201d . Such disclosure was recommended to take place DATE before the inquest .","Paragraph CARDINAL of the ORG stated :","\u201c The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation . The Coroner has no power to order the pre - inquest disclosure of such material ... Disclosure will therefore be on a voluntary basis . \u201d","Paragraph CARDINAL listed some kinds of material which require particular consideration before being disclosed , for example :","\u2013 where disclosure of documents might have a prejudicial effect on possible subsequent proceedings ( criminal , civil or disciplinary ) ;","\u2013 where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family ; and","\u2013 personal information about third parties not material to the inquest .","Paragraph CARDINAL envisaged that there would be non - disclosure of the investigating officer \u2019s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate .","NORP The police complaints procedure was governed at the relevant time by the Police ( GPE ) Order DATE ( the DATE Order ) . This replaced ORG , which had been set up in DATE , by ORG ( the ORG ) . The ORG has been replaced from DATE with ORG for GPE appointed under LAW Act DATE .","DATE . The ORG was an independent body , consisting of a chairman , CARDINAL deputy chairmen and CARDINAL other members . Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of ORG considered that a criminal offence might have been committed by a police officer , the case was referred to the ORG .","The ORG was required under LAW to supervise the investigation of any complaint alleging that the conduct of a ORG officer had resulted in death or serious injury . Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced ( LAW . A report by the investigating officer was submitted to the ORG concerning supervised investigations at the same time as to the Chief Constable . Pursuant to LAW , the ORG issued a statement whether the investigation had been conducted to its satisfaction and , if not , specifying any respect in which it had not been so conducted .","The Chief Constable was required LAW to determine whether the report indicated that a criminal offence had been committed by a member of the police force . If he so decided and considered that the officer ought to be charged , he was required to send a copy of the report to the ORG . If the ORG decided not to prefer criminal charges , the Chief Constable was required to send a memorandum to the ORG indicating whether he intended to bring disciplinary proceedings against the officer ( Article CARDINAL ) ) save where disciplinary proceedings had been brought and the police officer had admitted the charges ( Article CARDINAL ) ) . Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed , he was required to send a memorandum indicating whether he intended to bring disciplinary charges and , if not , his reasons for not proposing to do so ( Article CARDINAL ) and ( CARDINAL ) ) .","If the ORG considered that a police officer subject to investigation ought to be charged with a criminal offence , it could direct the Chief Constable to send the ORG a copy of the report on that investigation ( LAW ) . It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ORG specified ( LAW ) ) .","NORP The Director of Public Prosecutions ( the ORG ) , appointed pursuant to ORG ( GPE ) DATE ( the DATE Order ) is an independent officer with CARDINAL years\u2019 experience of the practice of law in GPE who is appointed by the Attorney General and who holds office until retirement , subject only to dismissal for misconduct . His duties under LAW DATE Order are inter alia :","\u201c ( a ) to consider , or cause to be considered , with a view to his initiating or continuing in GPE any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in GPE , any facts or information brought to his notice , whether by the Chief Constable acting in pursuance of Article PERSON ) of this Order or by the Attorney General or by any other authority or person ;","( b ) to examine or cause to be examined all documents that are required LAW CARDINAL of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated ;","( c ) where he thinks proper to initiate , undertake and carry on , on behalf of the ORG , proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him . \u201d","DATE LAW inter alia Coroners and the Chief Constable of the ORG to provide information to the ORG as follows :","\u201c ( CARDINAL ) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [ ORG ] a written report of those circumstances .","( CARDINAL ) It shall be the duty of the Chief Constable , from time to time , to furnish to the [ ORG ] facts and information with respect to -","( a ) indictable offences [ such as murder ] alleged to have been committed against the law of GPE ; ...","and at the request of the [ ORG ] , to ascertain and furnish to the [ ORG ] information regarding any matter which may appear to the [ ORG ] to require investigation on the ground that it may involve an offence against the law of GPE or information which may appear to the [ ORG ] to be necessary for the discharge of his functions under this Order . \u201d","According to the Government \u2019s observations submitted on DATE , it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms . This practice was based upon the consideration that","( CARDINAL ) NORP if reason were given in one or more cases , they would be required to be given in all . Otherwise , erroneous conclusions might be drawn in relation to those cases where reasons were refused , involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice ;","( CARDINAL ) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case ( e.g. sudden death or flight of a witness or intimidation ) . To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation ;","( CARDINAL ) the publication of the reasons might cause pain or damage to persons other than the suspect ( e.g. the assessment of the credibility or mental condition of the victim or other witnesses ) ;","( CARDINAL ) in a substantial category of cases decisions not to prosecute were based on the ORG \u2019s assessment of the public interest . Where the sole reason not to prosecute was the age , mental or physical health of the suspect , publication would not be appropriate and could lead to unjust implications ;","( CARDINAL ) there might be considerations of national security which affected the safety of individuals ( e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations , would impair the effectiveness of the counter - terrorist operations of the security forces or endanger the lives of such personnel and their families or informants ) .","Decisions of the ORG not to prosecute have been subject to applications for judicial review in ORG .","In R v. ORG ex parte C ( DATE ) CARDINAL CAR , p. CARDINAL , Lord Justice PERSON held , concerning a decision of the ORG not to prosecute in an alleged case of buggery :","\u201c From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through ORG arrived at the decision not to prosecute :","( CARDINAL ) because of some unlawful policy ( such as the hypothetical decision in GPE not to prosecute where the value of goods stolen was below \u00a3 CARDINAL ) ;","( CARDINAL ) NORP because ORG failed to act in accordance with his own settled policy as set out in the code ; or","( CARDINAL ) because the decision was perverse . It was a decision at which no reasonable prosecutor could have arrived . \u201d","In the case of NORP v. the ORG and Others ex parte PERSON the ORG on DATE quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the ORG \u2013 that the evidence was not sufficient to provide a realistic prospect of satisfying a jury DATE required further explanation .","R v. ORG ex parte PERSON and PERSON ( decision of ORG of CARDINAL DATE ) concerned the ORG \u2019s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner , although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous . The ORG reviewing the case still concluded that the ORG would be unable to establish manslaughter from gross negligence . The Lord Chief Justice noted :","\u201c ORG makes clear that a decision by the Director not to prosecute is susceptible to judicial review : see , for example , NORP v. Director of Public Prosecutions , ex parte C [ DATE ] CARDINAL Cr . App . PERSON . But , as the decided cases also make clear , the power of review is one to be sparingly exercised . The reasons for this are clear . The primary decision to prosecute or not to prosecute is entrusted by ORG to the Director as head of an independent , professional prosecuting service , answerable to the Attorney General in his role as guardian of the public interest , and to CARDINAL else . It makes no difference that in practice the decision will ordinarily be taken by a senior member of the ORG , as it was here , and not by the Director personally . In any borderline case the decision may be CARDINAL of acute difficulty , since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried , a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial . If , in a case such as the present , the Director \u2019s provisional decision is not to prosecute , that decision will be subject to review by Senior ORG Counsel who will exercise an independent professional judgment . The Director and his officials ( and Senior ORG Counsel when consulted ) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match . In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant , if brought , would be likely to fare in the context of a criminal trial before ( in a serious case such as this ) a jury . This exercise of judgment involves an assessment of the strength , by the end of the trial , of the evidence against the defendant and of the likely defences . It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it . So the courts will not easily find that a decision not to prosecute is bad in law , on which basis alone the court is entitled to interfere . At the same time , the standard of review should not be set too high , since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied . \u201d","As regards whether the ORG had a duty to give reasons , the Lord Chief Justice said :","\u201c It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute . Even in the small and very narrowly defined cases which meet PERSON conditions set out above , we do not understand domestic law or the jurisprudence of ORG to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute . But the right to life is the most fundamental of all human rights . It is put at the forefront of the LAW . The power to derogate from it is very limited . The death of a person in the custody of the ORG must always arouse concern , as recognised by section CARDINAL(CARDINAL)(c ) , ( CARDINAL)(b ) and ( CARDINAL ) of the Coroner \u2019s Act DATE , and if the death resulted from violence inflicted by agents of the ORG that concern must be profound . The holding of an inquest in public by an independent judicial official , the coroner , in which interested parties are able to participate must in our view be regarded as a full and effective inquiry ( see ORG v. GPE [ DATE ] CARDINAL EHRR CARDINAL , paragraphs CARDINAL to CARDINAL ) . Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who , although not named in the verdict , is clearly identified , who is living and whose whereabouts are known , the ordinary expectation would naturally be that a prosecution would follow . In the absence of compelling grounds for not giving reasons , we would expect the Director to give reasons in such a case : to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given , to vindicate the Director \u2019s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet ORG expectation that if a prosecution is not to follow a plausible explanation will be given . We would be very surprised if such a general practice were not welcome to Members of ORG whose constituents have died in such circumstances . We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves . We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision . But the number of cases which meet PERSON conditions is very small ( we were told that since DATE , including deaths in police custody , there have been CARDINAL such cases ) , and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review . In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require . \u201d","On this basis , the court reviewed whether the reasons given by the ORG in that case were in accordance with the Code for ORG Prosecutors and capable of supporting a decision not to prosecute . It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute . The decision was quashed and the ORG was required to reconsider his decision whether or not to prosecute .","In the Matter of an Application by PERSON for ORG , ORG in GPE on DATE considered the applicant \u2019s claim that the ORG had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police . It noted that there was no statutory obligation on the ORG under the DATE Order to give reasons and considered that no duty to give reasons could be implied . The fact that the ORG in GPE and GPE had in a number of cases furnished detailed reasons , whether from increasing concern for transparency or in the interests of the victim \u2019s families , was a matter for his discretion . It concluded on the basis of authorities that only in exceptional cases such as the PERSON case ( paragraph CARDINAL above ) would the ORG be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice PERSON ( paragraph CARDINAL above ) were infringed . Notwithstanding the findings in the civil case , they were not persuaded that the ORG had acted in such an aberrant , inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted .","The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ( ORG ) were adopted on DATE by ORG on ORG and the Treatment of Offenders .","Paragraph CARDINAL of ORG provides , inter alia , that the \u201c intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life \u201d .","Other relevant provisions read as follows :","Paragraph CARDINAL","\u201c ... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . \u201d","Paragraph CARDINAL","\u201c ... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . \u201d","Paragraph CARDINAL","\u201c Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . \u201d","Paragraph CARDINAL of ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG CARDINAL\/CARDINAL , ( ORG Principles on ORG ) provides , inter alia , that :","\u201c There shall be a thorough , prompt and impartial investigation of all suspected cases of extra legal , arbitrary and summary executions , including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ... \u201d","Paragraphs CARDINAL of ORG on LAW contain a series of detailed requirements that should be observed by investigative procedures into such deaths .","Paragraph CARDINAL states , inter alia :","\u201c The investigative authority shall have the power to obtain all the information necessary to the inquiry . Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ... \u201d","Paragraph CARDINAL specifies :","\u201c In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles . \u201d","Paragraph CARDINAL provides , inter alia :","\u201c Families of the deceased and their legal representatives shall be informed of , and have access to , any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ... \u201d","Paragraph CARDINAL provides , inter alia :","\u201c A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ... \u201d","The \u201c LAW \u201d ( LAW for a legal investigation of extra - legal , arbitrary and summary executions , contained in ORG on ORG - legal , Arbitrary and Summary Executions ) provides , inter alia , in section B on the \u201c Purposes of an inquiry \u201d :","\u201c As set out in paragraph CARDINAL of the Principles , the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim . To fulfil that purpose , those conducting the inquiry shall , at a minimum , seek :","( a ) to identify the victim ;","( b ) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible ;","( c ) to identify possible witnesses and obtain statements from them concerning the death ;","( d ) to determine the cause , manner , location and time of death , as well as any pattern or practice that may have brought about the death ;","( e ) to distinguish between natural death , accidental death , suicide and homicide ;","( f ) to identify and apprehend the person(s ) involved in the death ;","( g ) to bring the suspected perpetrator(s ) before a competent court established by law . \u201d","In section D , it is stated that \u201c In cases where government involvement is suspected , an objective and impartial investigation may not be possible unless a special commission of inquiry is established ... \u201d .","In the report on its visit to GPE and GPE from DATE , published on DATE , ORG for the Prevention of Torture ( the ORG ) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill - treating persons . It commented , inter alia , on the statistically few criminal prosecutions and disciplinary proceedings which were brought , and identified certain aspects of the procedures which cast doubt on their effectiveness :","The chief officers appointed officers from the same force to conduct the investigations , save in exceptional cases where they appointed an officer from another force , and the majority of investigations were unsupervised by ORG .","It stated at paragraph CARDINAL :","\u201c As already indicated , the ORG itself entertains reservations about whether the ORG [ ORG ] , even equipped with the enhanced powers which have been proposed , will be capable of persuading public opinion that complaints against the police are vigorously investigated . In the view of the ORG , the creation of a fully - fledged independent investigating agency would be a most welcome development . Such a body should certainly , like the ORG , have the power to direct that disciplinary proceedings be instigated against police officers . Further , in the interests of bolstering public confidence , it might also be thought appropriate that such a body be invested with the power to remit a case directly to the ORG for consideration of whether or not criminal proceedings should be brought .","In any event , the ORG recommends that the role of the \u2018 chief officer\u2019 within the existing system be reviewed . To take the example of CARDINAL ORG officer to whom certain of the chief officer \u2019s functions have been delegated ( the Director of the FAC [ Criminal Investigations Bureau ] ) , he is currently expected to : seek dispensations from the ORG ; appoint investigating police officers and assume managerial responsibility for their work ; determine whether an investigating officer \u2019s report indicates that a criminal offence may have been committed ; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer \u2019s report , and liase with the ORG on this question ; determine which disciplinary charges should be brought against an officer who is to face charges ; in civil cases , negotiate settlement strategies and authorise payments into court . It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way .","... Reference should also be made to the high degree of public interest in ORG [ ORG ] decisions regarding the prosecution of police officers ( especially in cases involving allegations of serious misconduct ) . Confidence about the manner in which such decisions are reached would certainly be strengthened were the ORG to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought . The ORG recommends that such a requirement be introduced . \u201d"],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","14","6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99816","languageisocode":"ENG","respondent":"CYP","branch":"ADMISSIBILITY","date":2010,"docname":"ORAMS v. CYPRUS","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr PERSON Necatigil and PERSON GPE , lawyers practising in GPE , in the northern part of GPE .","and as derived from the documents submitted by the parties , may be summarised as follows .","The applicants , a NORP couple , purchased a plot of land in DATE in the \u201c GPE \u201d ( \u201c GPE \u201d ) from a private vendor who was the registered owner under the law of the \u201c GPE \u201d . The land is situated in the village of ORG , in the district of GPE . The applicants built a villa there and regularly use the property as their holiday home .","Mr PERSON ( \u201c the plaintiff \u201d ) , a NORP - Cypriot , claimed ownership of the above land and brought proceedings against the applicants before ORG of GPE ( \u201c the ORG \u201d ) seeking damages for trespass to his property . He also applied for a demolition order of the villa , swimming pool and fence and for the return of the property .","On DATE CARDINAL writs were issued in NORP by ORG and served on the second applicant in person at the applicants ' holiday home . She did not sign them . The writs stated that in order to prevent a default judgment an appearance had to be entered before FAC within DATE of service , namely by DATE . The applicants obtained the assistance of a lawyer , PERSON , who agreed to enter an appearance on their behalf on DATE . However , the lawyer did not enter an appearance on DATE . No explanation for this has been given .","On DATE the plaintiff filed an application for judgment to be entered in default of appearance . On DATE , as no one had entered an appearance for the applicants , ORG gave a default judgment on the plaintiff 's claim . The applicants ' lawyer attended ORG on the above date in order to enter an appearance on behalf of the applicants but judgment had already been entered . The order of ORG required immediate demolition of the villa and other constructions which the applicants had erected on the land and delivery to the plaintiff of free possession of the land . It further required the applicants to refrain from continuing the unlawful intervention on the land . Orders for damages ( special and mesne profits ) and costs were also made .","On DATE the applicants ' lawyers , PERSON and ORG , entered an appearance on behalf of the applicants and filed an application to have the judgment set aside .","On DATE , after hearing evidence and arguments from the parties , ORG delivered a judgment dismissing the application .","In its judgment ORG held , firstly , that it had jurisdiction to try the case as the land in question was situated in the district of GPE which came under its jurisdiction following the merger of that district with the district of GPE in DATE ( relying on\/ referring to sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of ORG Law CARDINAL - Law CARDINAL\/CARDINAL , as amended ; and ORG . CARDINAL in ORG DATE ) . ORG relied on the ORG 's judgment in the case of PERSON v. GPE ( ( merits ) , DATE , Reports of Judgments and Decisions CARDINALVI ) as authority that ownership of land in the northern part of GPE remained with its original NORP - Cypriot owners . It noted that the argument that the court should take into account the de facto situation in the north had been put forward and dismissed by the ORG in its judgment in the case of ORG and PERSON v. GPE ( no . CARDINAL\/CARDINAL , DATE ) . ORG then considered the merits of the application . Relying , inter alia , on the ORG 's judgments in the cases of PERSON v. GPE ( cited above ) and GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALIV ) , it held that the plaintiff had not lost his right to his land . It further found that the conduct of the applicants towards the property amounted to trespass and neither \u201c local custom \u201d nor the claim that the applicants had acted in good faith could provide a defence . It noted that ORG . CARDINAL of CARDINAL DATE on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( \u201c Regulation No . CARDINAL \u201d ) was not applicable in the case as it concerned exclusively the question of the recognition and enforcement of judgments in other jurisdictions and was irrelevant to the question of setting aside the judgment obtained by the plaintiff . ORG concluded that the applicants had failed to show that they had a prima facie or arguable defence and dismissed the application on that ground . Costs were awarded to the plaintiff .","It appears that due to difficulties faced in serving the applicants ' lawyers , whose offices were in the northern part of GPE , with documents and\/or notices of hearings , on DATE , CARDINAL of the applicants ' lawyers , Mr M.A. , informed ORG that he would appoint an office of a colleague in GPE as an office for service and would notify the Registrar of this .","According to the applicants , on DATE , a bailiff of ORG telephoned the office of one of the applicants ' lawyers and asked them to contact the court to pick up the date for the appeal before ORG . According to the applicants a message was left with the secretary . The applicants submit that no written notification was sent to their lawyers and that , on DATE , CARDINAL of their lawyers , Mr M.A. , happened to be at ORG representing other clients and was called in by a ORG judge to appear for the applicants at the hearing . The applicants state that this was the first time that Mr PERSON had heard of the date of the appeal .","The appeal was heard on the above date .","The verbatim record of the hearing reports the following submissions by the applicant 's lawyer ( translation ) :","\u201c Mr PERSON : please there is no need for translation as I understand and speak the NORP language . It would therefore be a waste of time .","Your honour Mr President , your honours , at this stage I do not wish to waste the ORG 's time and I will simply adopt the outline of my address .","The only thing I wish to add is that the ORG , ORG , had this case at an unfortunate time when there was no arrangement as to whether the retainers would be in the NORP , LANGUAGE or LANGUAGE ( language ) . As you will see in the file before us , we asked for the same facility in this ORG too . In the end we agreed that it would be in the NORP language . It was a time immediately after the opening of the roadblocks when cases of such a nature came before the ORG in GPE and the Registrar had his doubts . I remember asking whether the retainer would be in LANGUAGE and they told us that the authorities of the Republic use only the NORP and NORP language . I brought a retainer before DATE in LANGUAGE , those we had in our Court and consequently there was a period of confusion . And I am sure that this confusion led to the decision that the ORG gave in these circumstances in the wrong exercise of its discretion .","All this case is based on the case of Wella and I argue and submit that her honour the judge in the lower ORG approached it wrongly . Thank you . \u201d","Following the submissions of the plaintiff 's lawyer , ORG reserved judgment .","Subsequently , on DATE the applicants ' lawyers sought to file an amended notice of appeal before ORG . In particular , in a letter dated DATE , the applicants requested ORG to hold DATE hearing so that all relevant principles of ORG law could be examined ; reminded ORG that it had a duty , under LAW establishing ORG to consider all relevant principles of ORG law ; and , lastly , relying on LAW expressed the view that the hearing of DATE had not afforded sufficient time for the examination of the complicated questions of ORG law that arose in the case . To their letter the applicants attached a detailed memorial and a copy of the judgment of ORG of GPE .","The applicants stated that they had not been permitted to file the aforementioned documents . On DATE , however , the clerk at the Registry informed them that although the documents would not be formally accepted they would be shown to the judges .","In the meantime the court had fixed the case for judgment for DATE . On that date , immediately before judgment was delivered , the verbatim record reports the following exchange as having taken place ( translation ) :","\u201c Court : DATE we fixed the case for judgment . Mr M.A. , you are submitting an application , which has not been of course translated but you have made a letter in LANGUAGE . If I understand correctly you wish to file amended grounds of appeal and reopen the case ? The case has finished and has been reserved . Will you file an application for amended grounds of appeal at this stage ?","Mr PERSON : We will withdraw this application .","Court : There are decisions that at this stage after judgment has been reserved the case is not reopened unless the ORG itself requires any clarification .","We will ignore this application and proceed to deliver judgment . The judgment is unanimous . The judgment will be given by Judge PERSON .","Mr PERSON : We do not need a translator . We waive the right for translation in NORP . \u201d","ORG then delivered its judgment dismissing the appeal . With regard to the issue of jurisdiction the court noted the following :","\u201c At the beginning of the address of learned counsel for the appellants , argumentation was put forward which aimed to show that the first instance court did not have jurisdiction or territorial competence to try the case before it . The issue of the jurisdiction of the first instance court was raised before us also by learned counsel for the respondent , who indeed invited this court to refer the issue of jurisdiction to ORG as a preliminary legal point . Following the observation made by our ORG that the issue of jurisdiction is not raised in the present appeal as it does not constitute any of the grounds of appeal , learned counsel for the respondent abandoned in essence his original suggestion . We do not intend to examine the question of jurisdiction or territorial competence of the first instance court as this matter is not raised in the appeal and is not a ground of appeal . It is correct that the matter of jurisdiction can be raised at any stage of the proceedings and can be raised ex proprio motu by the ORG , but in the present case it is not raised in the grounds of appeal and our ORG does not consider it useful to raise it on its own initiative . \u201d","In the meantime , on DATE , the plaintiff applied under Regulation No . CARDINAL for recognition and enforcement in GPE of the judgments of ORG ; namely , ( i ) the default judgment of DATE and ( ii ) the judgment of DATE .","On DATE Master PERSON ordered that the above judgments be registered in and be declared enforceable pursuant to the above Regulation .","The applicants brought a successful challenge against that order before ORG under LAW . CARDINAL\/CARDINAL . By order dated DATE Mr Justice PERSON allowed the appeal and set aside the registration of the CARDINAL judgments . The applicants were successful on CARDINAL grounds . The first was that PERSON Justice PERSON considered that the effect of LAW No . QUANTITY Act of Accession , was that the acquis , and therefore Regulation No . CARDINAL\/CARDINAL , were of no effect in relation to matters which related to the northern part of GPE . Hence , the plaintiff could not rely on the acquis in order to secure the recognition of the judgments he had obtained . In this respect , he noted , however , that the land was within the territory of GPE and that the case law of the ORG showed that the \u201c GPE \u201d laws could not be relied on by the applicants to deprive the plaintiff of his title to the land . The second ground arose from the circumstances in which service of the original proceedings was effected and the time that was permitted for entry of an appearance to the proceedings . He granted permission to appeal to ORG .","The plaintiff lodged an appeal under LAW . CARDINAL\/CARDINAL to ORG ) ( GPE and GPE ) .","By order dated DATE ORG referred to ORG ( \u201c ECJ \u201d ) for a ruling on the issues raised , CARDINAL questions being specified in the schedule to the order . The questions , in sum , concerned , firstly , the application of Regulation No . CARDINAL\/CARDINAL to a judgment relating to claims to the ownership of land situated in the northern area of GPE , in view of suspension of the application of the acquis communautaire in that area pursuant to LAW No . CARDINAL ; and , secondly , the interpretation of Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) and ( CARDINAL ) of Regulation No . CARDINAL with regard to the possible grounds for non - recognition and non - enforcement within the meaning of these provisions .","Following an oral hearing before the ECJ , Advocate General PERSON delivered an opinion on DATE . In her view LAW No . CARDINAL and Articles CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL ( CARDINAL ) of Regulation No . CARDINAL did not constitute grounds for refusal of recognition or enforcement of the default judgment . With regard to LAW Advocate General PERSON concluded as follows :","\u201c CARDINAL . Article CARDINAL ) of Regulation No . CARDINAL\/CARDINAL is to be interpreted as meaning that recognition and enforcement of a default judgment may not be refused by reference to irregularities in the service of the document which instituted the proceedings , if it was possible for the defendant , who initially failed to enter an appearance , to commence proceedings to challenge the default judgment , if the courts of the State where the judgment was given then reviewed the judgment in full and fair proceedings , and if there are no indications that the defendant 's right to a fair hearing was infringed in those proceedings . \u201d","On DATE , ORG ) gave judgment . It ruled as follows :","\u201c CARDINAL . The suspension of the application of the acquis communautaire in those areas of GPE in which the Government of that Member ORG does not exercise effective control , provided for by LAW No . CARDINAL on GPE to the LAW concerning the conditions of accession [ to ORG ] of ... GPE ... and the adjustments to the Treaties on which ORG is founded , does not preclude the application of ORG ( ORG ) No CARDINAL\/CARDINAL of DATE on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a NORP court sitting in the area of the island effectively controlled by ORG , but concerns land situated in areas not so controlled .","Article CARDINAL(CARDINAL ) of Regulation No . CARDINAL\/CARDINAL does not authorise the court of a Member ORG to refuse recognition or enforcement of a judgment given by the courts of another Member ORG concerning land situated in an area of the latter ORG over which its Government does not exercise effective control .","The fact that a judgment given by the courts of a Member ORG concerning land situated in an area of that ORG over which its Government does not exercise effective control , can not , as a practical matter , be enforced where the land is situated does not constitute a ground for refusal of recognition or enforcement under LAW . CARDINAL\/CARDINAL and it does not mean that such a judgment is unenforceable for the purposes of LAW that regulation . \u201d","Further , the ECJ found , unlike ORG , that LAW CARDINAL\/CARDINAL , could not legitimately be relied upon to refuse recognition or enforcement of a default judgment as the applicants had been able and did commence proceedings to challenge the default judgment of ORG . In particular , the ECJ stated as follows :","The recognition or enforcement of a default judgment can not be refused under Article CARDINAL(CARDINAL ) of Regulation No . CARDINAL\/CARDINAL where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence . \u201d","ORG then gave judgment on DATE in favour of the plaintiff . It first noted that the answers of the ECJ to the questions put were such that , subject to the further issues raised before it , the appeal should be allowed and the orders of PERSON registering and declaring enforceable the NORP judgments reinstated . It then went on to examine the CARDINAL issues raised by the applicants for determination . These concerned the denial of enforcement on the basis of public policy and the possibility that the ruling of the ECJ was affected by the apparent bias of the President of that court and whether further questions on these matters should be referred to the ECJ . ORG found firstly , that there was no public policy applicable in GPE to which the recognition and enforcement of the judgments of the NORP court would be manifestly contrary and secondly , that there was no appearance of bias on the part of the President of the ECJ . It therefore considered that no reference on the above issues should be made to the ECJ .","From a letter dated DATE sent to the ORG by the applicants ' lawyers it appears that the applicants have filed an appeal before ORG of GPE and that their application for stay of execution of ORG judgments was refused .","\u201c CARDINAL . The appellant may , by his notice , appeal from the whole or any part of any judgment or order , and the notice shall state whether the whole or part only of the judgment or order is complained of , and in the latter case shall specify such part . The notice shall also state all the grounds of appeal and set forth fully the reasons relied upon for the grounds stated . Each ground of appeal shall be set out in a separate paragraph . After each ground of appeal the reasoning thereof shall be set out separately Any notice of appeal may be amended at any time as ORG may think fit . \u201d","\u201c CARDINAL . ORG shall have all the powers and duties as to amendment and otherwise of ORG , together with full discretionary power to receive further evidence upon questions of fact , such evidence to be either by oral examination in ORG , by affidavit , or by deposition taken before an examiner or commissioner . Such further evidence may be given without special leave upon interlocutory applications , or in any case as to matters which have occurred after the date of the decision from which the appeal is brought . Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits , such further evidence ( save as to matters subsequent as aforesaid ) shall be admitted on special grounds only , and not without special leave of the ORG . ORG shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made , and to make such further or other order as the case may require . The powers aforesaid may be exercised by the said ORG notwithstanding that the notice of appeal may be that a part only of the decision may be reversed or varied , and such powers may also be exercised in favour of all or any of the respondents or parties , although such respondents or parties may not have appealed from or complained of the decision . ORG shall have power to make such order as to the whole or any part of the costs of the appeal as may be just . \u201d","\u201c CARDINAL . ( CARDINAL ) Where the appeal is only from part of a judgment or order , the hearing shall be confined to that part . Further , the hearing shall be confined to the grounds stated and the reasons set forth in the notice of appeal . But these provisions shall be subject to the discretion of ORG \u201d .","Pursuant to Article CARDINAL ) of CARDINAL ( as amended ) where an action concerns any matter relating to real property that action shall be brought before FAC of the district in which such property is situated .","By order of ORG published on DATE in ORG Notification No . CARDINAL following the invasion of GPE , the territories of the districts of GPE and GPE were reorganised . The power for merging of districts is granted to ORG ( as amended by PERSON CARDINAL\/CARDINAL ) .","Under domestic law if the defendant does not enter an appearance in DATE following service of writ of summons instituting proceedings the plaintiff may apply for a default judgment . Entering an appearance is an act which does not require the defendant to set out the nature of any defence .","Under LAW CARDINAL of ORG :","\u201c Where judgment is entered pursuant to any of the preceding rules of this Order , it shall be lawful for ORG in a proper case to set aside or vary such judgment upon such terms may be just \u201d .","In proceedings to set aside a default judgment the claimant is required to establish the existence of a prima facie arguable defence concerning the merits of the case . The claimant is not required to prove his defence . Further , the claimant will be required to put forward an explanation concerning his \/ her failure to enter an appearance ( see , for example , ORG judgment of DATE in the case of PERSON v. PERSON , ( DATE ) CARDINAL C.L.R.CARDINAL ; ORG judgment of DATE in the case of PERSON and others v. PERSON ( DATE ) CARDINAL C.L.R. CARDINAL , relying on the case of PERSON ( DATE ) CARDINAL All ER CARDINAL ) .","The application of the acquis shall be suspended in those areas of GPE in which ORG does not exercise effective control .","The ORG , acting unanimously on the basis of a proposal from the Commission , shall decide on the withdrawal of the suspension referred to in paragraph CARDINAL .","Regulation No . CARDINAL\/CARDINAL lays down rules governing the jurisdiction of courts in civil and commercial matters .","The relevant provisions of the ORG provide as follows :","\u201c ( CARDINAL ) Mutual trust in the administration of justice in the ORG justifies judgments given in a Member ORG being recognised automatically without the need for any procedure except in cases of dispute .","( CARDINAL ) By virtue of the same principle of mutual trust , the procedure for making enforceable in CARDINAL Member ORG a judgment given in another must be efficient and rapid . To that end , the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied , without there being any possibility for the court to raise of its own motion any of the grounds for non - enforcement provided for by this Regulation .","( CARDINAL ) However , respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure , against the declaration of enforceability , if he considers CARDINAL of the grounds for non - enforcement to be present . Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected . \u201d","\u201c The following courts shall have exclusive jurisdiction , regardless of domicile :","\u201c CARDINAL . In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property , the courts of the Member ORG in which the property is situated .","... . \u201d","\u201c A judgment shall not be recognised :","If such recognition is manifestly contrary to public policy in the Member ORG in which recognition is sought ;","Where it was given in default of appearance , if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence , unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so ; .... \u201d","\u201c CARDINAL . Moreover , a judgment shall not be recognised if it conflicts with Sections CARDINAL , CARDINAL or CARDINAL of Chapter II , or in a case provided for in DATE .","In its examination of the grounds of jurisdiction referred to in the foregoing paragraph , the court or authority applied to shall be bound by the findings of fact on which the court of the Member ORG of origin based its jurisdiction .","Subject to ... paragraph CARDINAL , the jurisdiction of the court of the Member State of origin may not be reviewed . The test of public policy referred to in point CARDINAL of Article CARDINAL may not be applied to the rules relating to jurisdiction . \u201d","\u201c CARDINAL . A judgment given in a Member ORG and enforceable in that ORG shall be enforced in another Member State when , on the application of any interested party , it has been declared enforceable there .",".... \u201d","\u201c CARDINAL . The court with which an appeal is lodged under LAW shall refuse or revoke a declaration of enforceability only on one of the grounds specified in DATE . It shall give its decision without delay .","Under no circumstances may the foreign judgment be reviewed as to its substance . \u201d","LAW provides for an appeal against the decision on the application for a declaration of enforceability . Article CARDINAL provides for a further appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83482","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2007,"docname":"CASE OF MCGRATH v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 2 (lack of independence of the investigating body during the initial stages of the investigation);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","At TIME , shortly after closing time , on DATE , a police officer in ORG ( \u201c ORG \u201d ) drove a car , stolen by ORG Constable PERSON , up to FAC , a public house . The applicant was leaving the bar at that time . He was shot twice in the stomach by PERSON , who then placed a QUANTITY gelignite bomb against the door of the pub . The detonator exploded but the bomb failed to explode . At the later trial a reserve police constable , PERSON , stated that shots were fired by his companions at the injured man on the ground and then he fired a number of shots through the window of the bar . PERSON strike marks were later found around the darts board inside the bar , where there had been CARDINAL people . CARDINAL else was physically injured .","The applicant was taken to hospital in an ambulance and police attended the scene , sealing off the area while an army technical officer examined the explosive device and ensured that it was in a safe condition . A Scene of Crime Officer examined the scene , took possession of material associated with the bomb and a gun recovered from a burnt out car found QUANTITY away , which police linked to the attack . Photographs of the bar were taken and maps prepared .","The investigation did not close and became active again in DATE , when a NORP priest Father PERSON was abducted by loyalist paramilitaries intending to use him as a hostage vis - \u00e0 - vis the IRA . In the course of the investigation , the police arrested PERSON , who , in the course of questioning , revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents . PERSON made allegations incriminating himself and police officer PERSON in respect of the GPE attack . PERSON was arrested and admitted involvement . CARDINAL further serving police officers , PERSON and PERSON , also admitted involvement in , or prior knowledge of , the attack on the bar . McCaughey admitted firing the shot which wounded the applicant .","The applicant was aware that charges were pending against QUANTITY police officers . He had been contacted by the police in DATE and summoned to appear in GPE ORG on DATE . He was subsequently advised of various date changes and then that the case was postponed and that he would be contacted . In fact the hearing took place on DATE . The applicant had not been informed and learned about the outcome on the radio .","CARDINAL men , PERSON , PERSON and PERSON , faced charges of attempted murder of the applicant , wounding the applicant with intent contrary to section CARDINAL of the Offences against LAW , attempted murder of the persons inside the bar , causing an explosion contrary to LAW with intent to endanger life or cause serious injury and possession of firearms and ammunition with intent . The CARDINAL officers pleaded not guilty to the charges of attempted murder ; PERSON and PERSON pleaded not guilty to wounding the applicant . ORG ( \u201c the ORG \u201d ) entered a nolle prosequi in respect of those charges which accordingly were not proceeded with . No reasons were given for this decision . The only person facing a charge concerning the applicant was PERSON , who received a term of DATE for wounding him . PERSON was sentenced to DATE imprisonment for causing an explosion , possession of an explosive substance with intent and possession of firearms and ammunition with intent , all sentences suspended for DATE . Another ORG officer , PERSON , was charged with withholding information contrary to section CARDINAL ) of LAW ( GPE ) Act DATE , based on the fact that he had been aware of the attack beforehand and had not taken any steps to prevent it .","With the exception of McCaughey , the other officers received suspended prison terms . In sentencing , Lord PERSON stated inter alia :","\u201c ... It does not seem realistic to believe that after all that they have endured \u2013 some with their careers in ruins , others with their careers in jeopardy- that they require much by way of deterrent or by way of reform , and no proper sentence which I pass will make an impression on terrorists while other members of the police force are no doubt already embarrassed , sufficiently embarrassed and shocked by what has happened in these cases and been seen to happen to their colleagues . ... I must remember that whatever sentence is just it would follow that it would be imposed on a different and lower scale from that appropriate to terrorists , no matter whichever side , whose aim is to achieve their political ends by violence and to attack the very fabric of society . \u201d","It had been advanced by the defence and accepted by the trial judge that PERSON had only aimed to shoot the applicant in the legs and had done so .","McClure had also been facing charges in relation to his involvement in the attack on ORG , ORG , in DATE in which CARDINAL people had been killed ( see application no . ORG , PERSON v. the GPE ) . These charges were later dropped .","In the course of the investigation in DATE , PERSON made revelations giving rise to investigations in CARDINAL specific cases , some of which were linked in terms of the identities of those involved , the modus operandi or by virtue of the ballistic examinations of weapons used . CARDINAL suspects were arrested in total , including QUANTITY police officers , and all were eventually charged with offences .","One of those implicated was a police officer PERSON who was named as having been involved in the murder of a shopkeeper called PERSON in PERSON in DATE : he was convicted for that murder in DATE and sentenced to life imprisonment . The ORG stated that both PERSON and PERSON refused to name the CARDINAL loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution . The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with PERSON and PERSON . While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries , each again refused to do so unless there was something in it for themselves . The ORG stated that during the period in which PERSON was detained he was interviewed on a large number of occasions . At no time did he implicate himself or others in any offence other than the PERSON murder .","On DATE PERSON was released from prison on licence . In DATE , he made a statement to a journalist alleging ORG and ORG ( \" UDR \" ) collusion with loyalist paramilitaries from the GPE area in DATE . This statement was published in the DATE ORG newspaper in DATE . It was obtained by ORG , a human rights non - governmental organisation in GPE ( \u201c the Centre \u201d ) .","PERSON statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents . He alleged inter alia that ORG Constable PERSON had told him that the murder of the NORP family members was carried out by PERSON , a member of the GPE , PERSON , PERSON , another Reserve Constable in the ORG and PERSON 's brother who was not a member of the security forces . The statement also made links between this incident and other attacks allegedly carried out by members of the security forces , both ORG and GPE , and loyalist paramilitaries . This group used the farmhouse in GPE owned by PERSON , a ORG reservist , as a base from which to carry out attacks on NORP and nationalists . Other attacks allegedly included the murder of PERSON and PERSON at a bogus vehicle checkpoint in DATE ( see application no . CARDINAL ) ; the attack on ORG in which PERSON , PERSON and PERSON were killed ( see application no . ORG ) ; and the murder of PERSON , PERSON and PERSON and wounding of PERSON ( see application no . CARDINAL\/CARDINAL ) . PERSON also linked these attacks to the GPE and GPE bombings in which CARDINAL people were killed in GPE .","On or DATE , ORG , an NORP television channel , broadcast a television programme that contained allegations of security force involvement in a number of deaths , including that of PERSON . PERSON made allegations on that programme that members of the ORG and GPE were directly involved in the attack on ORG . A ORG programme produced a similar documentary dealing with these allegations .","These allegations attracted considerable attention on both sides of the NORP border and became the subject of police investigation in both jurisdictions . The Government stated that the police investigation in GPE was focussed on determining whether PERSON 's allegations should be assessed as sufficiently credible to require a full investigation . They obtained from the journalist an edited transcript of the interview with PERSON . While his whereabouts were unknown to the ORG , PERSON met with senior NORP police officers at FAC on DATE . A copy of his statement was provided by the PERSON to the ORG , along with a further statement made by ORG to another journalist dated DATE . The police analysed the available materials and sought to identify the personalities to be interviewed . It became apparent that some had died and that others , living abroad , could not be traced . A series of CARDINAL interviews were conducted , under cautions , DATE , of those individuals central to ORG 's account who could be traced . No charges were preferred . The interviews followed the format of ORG 's allegations being put to the interviewee for his or her response . The predominant response was denial of any involvement and claims that ORG had been untruthful . No admissions were made by any interviewee . Interviews were also conducted with less central personalities and with police officers involved in interviewing PERSON in DATE . The latter stated that PERSON had not mentioned the matters now being alleged .","Meetings were held regularly with ORG counterparts in GPE . The ORG co - operated also with the judicial inquiry established in GPE into the GPE and GPE bombings ( see the description of the inquiry in the case of PERSON referred to above ) . Amongst matters about which the ORG team provided information to the inquiry was ballistics information which linked some of the weapons used to CARDINAL incident . In DATE a substantial report was compiled by the ORG for the GPE dealing with PERSON 's allegations . It profiled PERSON and dealt inter alia with a description of the DATE investigation into ORG and others . It concluded that the investigation would continue but that his credibility was in doubt . According to ORG , despite inquiries being conducted , PERSON 's whereabouts could not be traced . This report was not disclosed as the investigation was continuing . An internal ORG report dated DATE concluded that it would be necessary to interview ORG before any view could be finalised in respect of the credibility of his allegations : such interview was not possible as his whereabouts were not known . The report noted the absence of any previous mention of the allegations before DATE and that much of what he said was hearsay and speculation . Enquiries made of ORG ( where he had a known address ) and the criminal intelligence service and others failed to locate PERSON . Contact was made with the PERSON and the secretariat of the Inquiry into the GPE and GPE bombings without positive result .","ORG ( \u201c ORG \u201d ) was established in DATE , with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities .","Unlike the other case ( Brecknell , Reavey , ORG and PERSON , cited above ) , the GPE case was not referred to the ORG . This was because it was not a murder case and there had been CARDINAL convictions . Nonetheless because of connections with other cases , the case was also referred to ORG ( HET ) . The ORG director of ORG , Detective Chief Superintendent PERSON ORG , took over personal supervision of the investigation which has progressed through the first CARDINAL of CARDINAL stages of the HET process ( collection of all relevant material ; assessment of the investigations to date ; review of evidence , with intelligence and open and non - police sources , together with a meeting with the families of the victims of the attack ) . As a number of investigative opportunities were identified and to be followed up , the case was to continue to be processed by HET , which had been put in touch with PERSON by ORG The Government submitted that if any evidence of police involvement in the murders was found , ORG for GPE would then become involved . The Government have provided recent information that PERSON finally agreed to meet with the ORG in GPE ; he refused , however , to make a written statement or to give evidence in court .","There has been contact between the police and the applicant , as well as with the ORG acting on behalf of a number of concerned families . In particular , there were meetings in DATE with Detective Chief Inspector PERSON , and a meeting with the Chief Constable in DATE and DATE ; in DATE , Detective Chief Superintendent PERSON met the applicant together with the person who owned the bar at the time ; and there has also been extensive correspondence with the families or their representatives .","See PERSON , cited above ( \u00a7 \u00a7 CARDINAL - CARDINAL ) .","See PERSON , cited above ( \u00a7 \u00a7 DATE ) ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81211","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF BITIYEVA AND X v. RUSSIA","importance":2,"conclusion":"No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Article 2 - Right to life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)","judges":"Christos Rozakis","text":["The first applicant was born in DATE and lived in the village of PERSON , GPE , GPE . She was killed on CARDINAL DATE in her house , along with CARDINAL other members of her family . The second applicant is the first applicant 's daughter . She was born in DATE and currently resides in GPE , where she sought asylum .","The facts of the case are partly disputed by the parties . In view of that , the ORG requested the ORG to submit copies of certain documents in relation to the applicants ' complaints . The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the ORG is set out in Part B and a summary of other relevant documents in Part C below .","The first applicant lived in the village of PERSON in LOC in GPE , together with her husband , PERSON , and her children , PERSON , ORG ( the second applicant ) .","The first applicant was an active political figure in the Republic and participated in anti - war protests . DATE she worked with ORG .","The applicants submitted that on DATE NORP soldiers had entered the first applicant 's house to conduct a passport check . The first applicant and her son PERSON explained that their passports had been submitted to the local authority for renewal . This explanation had apparently been accepted and the soldiers had left .","On DATE at TIME CARDINAL men in military uniforms , some wearing balaclava masks , entered the house . CARDINAL men , apparently the same ones who had been in the house DATE , said that they were carrying out a passport check and ordered the first applicant , whom they had addressed by name , to go with them to the local police department to find out about her passport . The first applicant 's son PERSON was also ordered to go .","The first applicant and her son were taken to ORG of the Interior ( ORG ) . After TIME they were transferred to the GPE detention facility , where the first applicant and her son were separated .","The first applicant submitted that upon arrival in GPE she had been forced to watch other detainees being ill - treated . CARDINAL men were made to run naked , with their clothes folded in their arms , along a corridor QUANTITY long while the soldiers beat them .","The first applicant was forced to stand with her face to the wall , with her hands raised against the wall until TIME . The hall was unheated , with broken windows , and it was very cold . She was not allowed to sit or lie down . In the evening she was taken to a cell .","Cell no . CARDINAL , where the first applicant was detained , was very small . It contained CARDINAL metal beds and a toilet . CARDINAL to QUANTITY women were kept there at different times , and sometimes the detainees had to sleep in turns . The cell was very dirty and the stench from the toilet was unbearable . Once a day the detainees were given QUANTITY of water per cell and CARDINAL bowl of food for QUANTITY persons in dirty crockery .","During her detention the first applicant was humiliated constantly as a woman and as a person of NORP origin . The guards told her that she would not leave the place alive , that she would go insane or kill herself . The applicant was pushed and hit with rifle butts on many occasions . On CARDINAL occasion , DATE , the guards sprayed gas into each cell , causing the detainees to cough .","Other inmates in the cell , according to her submissions , included sick persons and children . The applicant witnessed other detainees being beaten and humiliated by the guards . Sometimes she could hear her son 's screams while he was being beaten in the corridor in front of her cell .","The first applicant was called for questioning CARDINAL times during her stay . The person questioning her did not state his name or rank and asked questions of a general character . The applicant was asked about her name and where she was from , to which clan she belonged , if she was a NORP and if she prayed . She was also asked questions about the \u201c peace march \u201d to GPE in which she had participated and who had financed it .","The first applicant , who suffered from cholecystitis and heart failure , was denied professional medical help while in detention . Her medical condition deteriorated rapidly . On CARDINAL occasion she fainted in the corridor and the guards only allowed other women inmates to carry her into the cell after TIME .","The second applicant submitted that she had brought food and medicines to her mother and brother in detention in GPE , but that little had reached them , as the soldiers had taken most of it .","In support of the first applicant 's submissions as to the conditions of detention in GPE the applicants submitted a statement by PERSON . , who had been detained in the same cell as the first applicant in DATE . She confirmed the first applicant 's submissions concerning the conditions of detention , the beatings of other detainees and the applicant 's health problems .","In addition , the applicants submitted press and NGO reports about the situation in the GPE detention facility at DATE and DATE , which described the intolerable conditions of detention and the widespread torture and ill - treatment of detainees , together with relevant ORG documents ( see Part C below ) .","NORP In their observations the Government submitted that the first applicant and her son PERSON had been detained on DATE on the basis of LAW of DATE ( no . DATE ) on measures aimed at prevention of vagrancy , and placed in the reception and identification centre ( \u043f\u0440\u0438\u0435\u043c\u043d\u0438\u043a-\u0440\u0430\u0441\u043f\u0440\u0435\u0434\u0435\u043b\u0438\u0442\u0435\u043b\u044c ) in GPE , which had operated from DATE . The first applicant had remained there until DATE , when her identity had been established and she had been transferred to a hospital in view of the deterioration of her health . The Government submitted some documents relevant to the first applicant 's detention ( see Part B below ) .","As to the status of the GPE detention facility , in DATE the Government submitted that there were no documents available about the legal status of the institution prior to DATE , but that the premises of the former high - security wing of correctional facility IS-CARDINAL\/CARDINAL ( \u043f\u043e\u043c\u0435\u0449\u0435\u043d\u0438\u0435 \u0431\u044b\u0432\u0448\u0435\u0433\u043e \u0448\u0442\u0440\u0430\u0444\u043d\u043e\u0433\u043e \u0438\u0437\u043e\u043b\u044f\u0442\u043e\u0440\u0430 \u0438\u0441\u043f\u0440\u0430\u0432\u0438\u0442\u0435\u043b\u044c\u043d\u043e\u0439 \u043a\u043e\u043b\u043e\u043d\u0438\u0438 \u0418\u0421-CARDINAL\/CARDINAL ) had been used as a reception and identification centre . According to the Government , on DATE the Minister of ORG had issued orders for a pre - trial detention centre ( \u201c GPE \u201d ) to be set up and for responsibility for the institution to be transferred to ORG of GPE .","At the same time the ORG submitted a copy of the order issued by the Minister of ORG on CARDINAL DATE ( no . CARDINAL ) , by which responsibility for pre - trial detention centre IZ-CARDINAL\/CARDINAL in GPE had been transferred from ORG of Kabardino - Balkaria to ORG of GPE . The institution was designated as \u201c IZ-CARDINAL\/CARDINAL \u201d . Its capacity was established at CARDINAL persons . ( Documents issued by the pre - trial detention centre in DATE and DATE referred to it as \u201c IZ-CARDINAL\/CARDINAL \u201d . )","The first applicant was transferred to the district hospital in GPE on DATE . According to the second applicant 's statement , her mother was unconscious and the doctors insisted that she should be taken to the hospital for intensive care . The first applicant submitted that in the hospital she had been guarded by the military for DATE .","The first applicant submitted that in DATE she had been visited in the hospital by ORG , who had told her that she had been cleared of charges .","The first applicant was issued with a certificate by the head of the PERSON , dated DATE , which stated that \u201c from DATE to CARDINAL DATE the criminal police of the PERSON investigated on the basis of incriminating materials [ the first applicant 's ] participation and involvement in illegal armed groups in GPE . No incriminating material was found . \u201d","The first applicant was discharged from the hospital on DATE . The second applicant submitted that she had remained very weak and spent DATE in bed . She had lost a significant amount of weight , and her arms and head had trembled .","The first applicant 's son , PERSON , was released from GPE on DATE . The second applicant submitted that he had likewise suffered beatings and ill - treatment while in detention . No medical documents were submitted to substantiate this .","Neither the first applicant nor her son PERSON was charged with any crime in relation to their detention .","The Government submitted that the first applicant had been admitted to ORG on DATE and diagnosed with \u201c bronchopneumonia on both sides and cardiac - type neurocirculatory dystonia with asthmatic syndrome \u201d . She had undergone a number of complex examinations , but no injuries or traces of beatings had been recorded . After release neither the first applicant nor her son had filed complaints with the prosecutor 's office about alleged ill - treatment while in detention .","The Government further stated that it was impossible to identify the persons who had worked at the reception and identification centre at the relevant time or to obtain copies of documents , in view of the absence of any archives . A check carried out by ORG resulted on DATE in a decision not to open a criminal investigation . Later this decision was reversed ( see Part B below ) .","The applicants submitted a number of ORG and media reports relating to the situation in GPE at the material time . In particular , they referred to a ORG report of DATE entitled \u201c Welcome to Hell : Arbitrary Detention , Torture and Extortion in GPE \u201d . The report contained a special section on the GPE detention centre in DATE and DATE based on interviews with former inmates . The report presented a picture of systematic abuse and ill - treatment of detainees , compounded with sordid conditions of detention . It called upon the NORP authorities to investigate fully the events in GPE in DATE to ensure prosecution of those responsible for the abuses and to grant compensation to the victims .","On DATE the ORG contacted ORG following a publication in ORG magazine about \u201c filtration points \u201d for persons whom the federal authorities had suspected of being linked to illegal armed groups . The article and accompanying pictures described the harsh conditions of detention at a filtration point in ORG , near ORG . It also spoke of abuse and ill - treatment in GPE . On DATE the prosecutor of LOC responded to PERSON , confirming that from DATE a \u201c filtration point \u201d had indeed been set up in the village of ORG . He stated that in the period in question CARDINAL persons had been detained there . Of these , CARDINAL persons had been charged with the offence of participating in illegal armed groups , detained on the basis of a prosecutor 's order and transferred to the GPE pre - trial detention centre ( GPE ) . All others had been released . The legality of their detention had been supervised by the relevant prosecutors and the detainees had been provided with sleeping facilities , food and medical assistance .","The second applicant submitted CARDINAL statements by witnesses to the events : her brother PERSON and CARDINAL neighbours , PERSON and PERSON According to these statements , on CARDINAL DATE the first applicant , her husband PERSON ( the second applicant 's father ) , their son PERSON ( the second applicant 's brother ) and the first applicant 's brother PERSON ( the second applicant 's uncle ) spent TIME at the first applicant 's house at CARDINAL Filatova Street in PERSON . The first applicant 's other son , PERSON , was sleeping in a separate house in the same courtyard , and his DATE son was in the house with the first applicant , his grandmother .","At TIME UAZ-CARDINAL cars without registration plates , equipped with large aerials , arrived at the house next door to the first applicant 's house . Several men entered the house very quietly , so the owner of the house , NORP , did not hear them enter . They woke NORP up and gagged her with adhesive tape . Then they demanded her passport . CARDINAL of them looked at the photograph and told the others in NORP \u201c This is not her \u201d . They then left , having warned the inhabitants to be quiet for TIME . They took the passport along with them . NORP later found her passport in the first applicant 's house .","The group arrived at the first applicant 's house at TIME Eleven persons entered the first applicant 's house ; a few others , armed with grenade - launchers and machine guns , gathered in the street around the house . They were all tall and well - built and were wearing camouflage which the witnesses identified as the uniform of the special forces . CARDINAL of them were masked ; others were wearing black helmets covering their necks and ears . The men who entered the house were armed with ORG guns . After TIME a neighbour heard CARDINAL sounds of muffled blows , which he at first mistook for knocking at the gates . He then realised it had been the sound of shooting .","I. , the first applicant 's son , testified that he had heard noise and a scream at the neighbours ' at TIME He thought that it was probably a special operation , something that happened regularly in the village . He dressed very quickly and looked outside . He noticed several men in camouflage and \u201c special forces helmets \u201d jumping into the courtyard across the fence . The witness guessed that they would not immediately break into the house and noted that they had first taken up combat positions around the door . He rushed into the room and covered his bed with a blanket , then hid behind an armchair . As soon as he did so , several men ran into the house and spread into the rooms . CARDINAL of them said \u201c There is no one here \u201d , and another one said \u201c Take the video \u201d . They spoke NORP and did not mention any names or ranks when addressing each other . In TIME they left , having taken the video player . The second applicant 's brother heard the dog barking and some noise outside . Then he heard CARDINAL shots being fired very rapidly . TIME he heard them shouting \u201c Come on , let 's leave , quick \u201d , and then the sound of the cars leaving .","The neighbours saw CARDINAL ORG cars leave towards the main road to Grozny .","I. waited TIME and went outside . He saw CARDINAL women in the street and was very surprised that his mother had not come out , because usually she was very active and intervened when someone had been detained in the village . He noticed that the door of his parents ' house was ajar and thought that his whole family had been taken away . When he entered the house he noticed his mother lying on the floor . A female neighbour entered and he gave her his DATE son , who was crying in his bed , and asked her to take him out .","He then returned to the room and turned on the light . He found the first applicant on the floor , lying on her back . Her mouth was covered with adhesive tape and her hands were bound together with the same tape . She had been shot in the face and in the hands . I. later counted CARDINAL bullet holes in the floor , from an ORG machine gun .","Then he went into the corridor and found the body of his uncle , PERSON . The neighbour PERSON submitted that there was a black hood with strings on his head , used by the military when they detained people . His hands and feet were taped together . He had been shot CARDINAL times in the back of his head . I. testified that his uncle had been sleeping that night in a separate house in the same courtyard and that the killers must have brought him to the first applicant 's house by force because the furniture in that house had been smashed .","In the living room they found the body of the first applicant 's husband , PERSON . He was lying on the floor near the sofa , and his hands and legs were taped together . He had been shot in the back of his head . A roll of adhesive tape was lying near his body . In the bedroom on the floor they found the body of the first applicant 's son , PERSON , with his hands taped behind his back and his legs taped together . He had also been shot CARDINAL times in the back of his head .","In TIME the villagers learnt that on TIME CARDINAL other men had been killed , apparently by the same group . ORG 's house at FAC had been raided at TIME ; his wife , who had opened the door , had been gagged and her hands and feet bound with tape . Once she had managed to free herself , she had found her husband 's body with bullet wounds to the head . At TIME the group had raided the house of GPE in FAC . His wife and mother had been bound up with adhesive tape and the owner of the house had been taken out by men identified by the witnesses as \u201c military \u201d . PERSON 's body , with his hands bound in front of the body with adhesive tape , was found by his relatives TIME in the vegetable patch at the house with CARDINAL bullet holes in the head and shoulder .","Once I. discovered the bodies he ran into the courtyard screaming for help . In response to his cries neighbours came and CARDINAL of them went to call the local police . The police came in the morning , TIME . At TIME scene of crime experts arrived from the district 's administrative centre in GPE , photographed the bodies and collected the cartridges .","On DATE the relatives washed and buried the bodies . The second applicant submitted that the experts had not asked them to postpone the burials or to allow an autopsy .","The witnesses submitted that some villagers had asked the military at the roadblocks surrounding the village who had come that night and why they had been allowed to pass through to PERSON and back . They were apparently told that this had been a military group with a \u201c special mission \u201d permit . They also alleged that similar information had been given to the local police and that was why they had not interfered .","On DATE ORG opened criminal investigation no . DATE under Article CARDINAL , part CARDINAL ( a ) and ( g ) , of LAW ( killing of CARDINAL or more persons with aggravating circumstances ) .","On DATE the NGO Memorial issued a press release entitled \u201c Political Crime in Kalinovskaya \u201d . It reported the killing of the first applicant and her family and linked it to the first applicant 's complaint to ORG . It also referred to the pending criminal proceedings against the first applicant 's brother and son , PERSON and PERSON , for possession of illegal drugs for non - commercial purposes . The document reported that the first applicant had insisted that the proceedings had been contrived in retribution for her active position in relation to the crimes committed by the military , including a request to investigate a mass burial discovered in LOC in DATE .","On DATE the ORG , acting under LAW , informed ORG about the application lodged by the first applicant and about her killing and that of her family members , on the basis of information received from the applicants ' representatives .","On DATE Memorial contacted the Prosecutor General with an inquiry about the killings in PERSON . In DATE ORG replied that their letter had been forwarded to ORG .","In DATE the second applicant contacted ORG with a request to grant her victim status in criminal case no . DATE . She received no answer to this letter .","The Government in their observations submitted additional information about the investigation into the killings . According to them , on CARDINAL DATE the investigators examined the site of the crime and collected evidence . The relatives of the deceased refused to submit the bodies for forensic examination . In view of that , the forensic experts ' reports had been carried out on the basis of medical documents . They confirmed the presence of gunshot wounds , which had caused the deaths . A ballistic expert report was also carried out .","According to the Government , on CARDINAL DATE the investigation questioned CARDINAL relatives and neighbours of the persons who had been killed . They also questioned CARDINAL servicemen of the law - enforcement bodies . In DATE the investigation questioned ORG and the first applicant 's brother PERSON , who were both granted victim status . Additional questioning of the witnesses and victims took place in DATE . In DATE and DATE the investigation questioned and granted victim status to the relatives of ORG and FAC The second applicant had never applied to the prosecutors in relation to the killings of her family members . Thus , a decision to grant her victim status was only taken on DATE , but it was not announced to her , in view of her absence from her place of residence .","According to the ORG , the investigation established that on CARDINAL DATE between CARDINAL and TIME a group of unidentified men wearing camouflage and masks and armed with automatic weapons had entered QUANTITY houses in the village of PERSON and killed CARDINAL persons , including the first applicant and CARDINAL members of her family . The identities of the perpetrators were not established . The involvement of the special forces was not confirmed by the investigation . According to the information supplied by ORG ( ORG ) , no servicemen of the ORG had been involved on DATE in any operations in LOC . The investigation reviewed the log records of the vehicles belonging to the military units stationed in the district , which indicated that no vehicles had left their location on that night . ORG also denied that they had carried out any operations in the district .","The investigation of criminal case no . DATE was adjourned and reopened on several occasions . It failed to identify the perpetrators of the crimes . Following a request from ORG , the ORG submitted a number of documents from the criminal investigation file in case no . MONEY ( see below ) .","The second applicant submitted that she and her brother PERSON had been threatened and harassed by the military and law - enforcement bodies after the killing of the first applicant and her family . She submitted that DATE after the killings her brother had been detained by the military for some time , and that while in detention he had been beaten and ill - treated . Soon afterwards he had left without any notice and she had no information as to his whereabouts .","She also submitted that on an unspecified date in DATE her aunt ( the first applicant 's sister ) had been visited in ORG by officers of ORG , who had told her that they were looking for the second applicant . The woman told them that she did not know where the second applicant lived , because the latter had no permanent address . The prosecutors asked the second applicant 's aunt questions about the complaint to the ORG , who had applied and why the prosecutor 's office had not been informed of this complaint . The second applicant submitted that her aunt had not been aware of the complaint and had replied that they had never applied to the ORG . The prosecutors had asked her to sign some papers without disclosing their contents , or blank papers , but she had refused .","The second applicant also submitted that on CARDINAL May CARDINAL , while in the village of PERSON , she had been approached by a local policeman , an officer of ORG and their CARDINAL guards . They had demanded that the applicant produce her internal passport and had taken it away . They had then asked her if she was aware of LAW ( illegal possession of arms ) , where she kept her weapons , what she was doing in PERSON and in PERSON and what the price of arms was . The second applicant replied that she had nothing to do with weapons and that she did not have any . The second applicant submitted that when they had noticed her relative , a member of the security service , they had returned the passport to her , had said that they \u201c just wanted to talk \u201d and had left .","The second applicant submitted that her husband had divorced her because he and his relatives were afraid that they could have problems being associated with her . She felt intimidated and feared for her safety , security and life .","On DATE the ORG , acting under LAW , requested ORG to take all measures to ensure that there was no hindrance in any way of the effective exercise of the second applicant 's right of individual petition as provided by LAW . This measure was lifted on DATE .","The Government submitted that in response to the second applicant 's complaint about intimidation , ORG had carried out an inquiry . The office had refused to open criminal proceedings , but later this decision had been reversed by ORG . Following a request from ORG , the ORG submitted a number of documents relevant to these proceedings ( see Part B below ) .","The second applicant submitted that on DATE and on DATE investigators from ORG had questioned her and obtained written explanations about the alleged intimidation . In DATE questioning had taken place at ORG and in DATE the investigator had visited her while she was working in a hospital in PERSON .","The second applicant submitted to the ORG her own statement and a copy of the \u201c explanation \u201d obtained on DATE . She submitted that the investigator had assured her that she would be protected from further threats and that no one would bother her in the future . The applicant stated , however , that the questioning had concerned not only the incidents of harassment , but also some details about her complaint to the ORG and about her lawyer . The investigator had warned her that she should submit correct information , otherwise she could be prosecuted for giving false statements . The second applicant submitted that the questioning had been an intimidating experience , because of the nature of the questions , because she had been pregnant at the time and had to take care of her DATE child and because her elderly relatives , who were present , had not been happy to learn that she had applied to GPE , fearing for their lives and safety . The applicant also referred to the poor security situation overall , when any contact with representatives of the law - enforcement bodies was perceived by her and her family as a threat .","Following the decision on admissibility , the ORG requested the ORG to submit copies of a number of documents . In particular , the ORG were requested to submit documents concerning the investigation into the first applicant 's complaints of ill - treatment , documents specifying the legal status of the detention centre in GPE during the relevant period and documents relating to the first applicant 's medical complaints and condition . The ORG also requested the ORG to submit a copy of the file on the criminal investigation opened into the murder of the first applicant and documents relating to the inquiry into the second applicant 's allegations of harassment . In response , the ORG submitted CARDINAL pages of relevant material . The ORG stated that the submission of other related documents was impossible because they contained information about the location and actions of the military and special units and personal information about the participants in the proceedings . They referred to LAW ORG ) .","DATE . The relevant documents are summarised below .","In DATE the temporary isolation facility of ORG of the ORG ( ROVD ) informed the investigator from ORG that the first applicant had not been detained there DATE .","On an unspecified date the head of GPE ( IZ-CARDINAL\/CARDINAL ) informed ORG that the first applicant had been detained there DATE and DATE . On the latter date she had been transferred to the district hospital in GPE . The letter further informed the prosecutor that no copies of the criminal investigation file or of the personal file on the first applicant had been preserved , with the exception of the entry cards . Another document issued by the same officer in DATE stated that it was impossible to find out any details about the first applicant 's detention because no proper records had been kept at the relevant time . It further stated that DATE the facility had been guarded by military servicemen on assignment from other regions and that it was impossible to identify them . From DATE the institution had come under the authority of ORG of Kabardino - Balkaria and had been manned by its staff . After DATE the detention facility had operated under the authority of ORG of GPE .","In DATE ORG of GPE issued a note to the effect that it had no information as to the operation of a reception and identification centre in GPE or whether it had ever been under the authority of ORG of Kabardino - Balkaria .","The Government also submitted copies of log entries for the first applicant and for her son PERSON . The first applicant 's card contained information about her name , date and place of birth and place of residence . It stated that she had entered GPE on DATE and that on DATE she had been transferred to hospital . The entry for PERSON also contained personal information , and stated that on DATE he had been \u201c checked and released \u201d .","The Government submitted a number of documents relating to the first applicant 's treatment at FAC . In so far as they are legible , the documents confirm that on DATE the first applicant was delivered by ambulance from the \u201c detention facility \u201d in a grave condition and diagnosed with acute bronchopneumonia on both sides , heart failure , stenocardia , exacerbations of chronic cholecystitis and pyelonephritis on both sides . The records state that the first applicant had fallen ill DATE previously as a result of hypothermia . She was treated at the hospital until DATE .","From the documents submitted by the Government it also appears that in DATE ORG Office carried out an inquiry into the first applicant 's ill - treatment while in detention . The inquiry was prompted by an ORG report about the persecution of human - rights activists in GPE . The documents referred to the records kept in GPE , according to which on DATE the first applicant had been diagnosed with and treated for tracheobronchitis and cholecystitis . She had again sought medical assistance on DATE , when her pulse and blood pressure had been taken . On DATE the investigator stated that no other records were available and ruled that no criminal investigation should be opened on account of the absence of corpus delicti . In DATE a supervising prosecutor quashed that ruling and ordered a further inquiry .","On DATE a prosecutor of ORG opened a criminal investigation into the murders of ORG , GPE , the first applicant and her CARDINAL family members in the village of PERSON \u201c by unidentified persons wearing camouflage uniforms and masks and armed with automatic weapons \u201d . The order referred to the types of weapons used : a PM pistol and PERSON sub - machine guns of CARDINAL PERSON and QUANTITY calibre . The case file was registered as no . DATE . On DATE the Deputy Prosecutor of GPE set up an investigative group of CARDINAL officers from the prosecutor 's offices of LOC and PERSON , and from the military prosecutor 's offices and ORG .","DATE . On DATE I. , the first applicant 's son , was granted victim status in the proceedings . On DATE , the first applicant 's brother , was also granted victim status . In DATE the relatives of ORG were granted victim status in the proceedings . In DATE relatives of ORG were recognised as victims .","On DATE the investigating body issued orders to grant victim status to the second applicant . They were forwarded to her place of residence in PERSON by mail , and were not countersigned by her .","The documents submitted by the Government include a number of prosecutors ' orders to extend the term of the investigation , and to adjourn and reopen the proceedings . These orders mention some investigative steps , such as information requests , forensic and fingerprint experts ' reports , and the records of the questioning of witnesses and victims . They also refer to a certain \u201c directive of ORG \u201d ( \u201c \u0434\u0438\u0440\u0435\u043a\u0442\u0438\u0432\u0430 GPE ) . The Government did not submit copies of these documents and no further details of these measures have been made available to the ORG .","DATE and DATE the investigation was adjourned CARDINAL times owing to the failure to identify the culprits . Each time it was reopened by a supervising prosecutor on the ground that the investigation had not been carried out in full . The last order to reopen the proceedings is dated DATE .","The persons who had been granted victim status were informed of the decisions to adjourn and reopen the investigation .","NORP In DATE an investigator from ORG ordered an inquiry into these allegations further to information provided by ORG at the ORG .","The investigators questioned the second applicant , the local policeman , an officer of ORG , guards and the second applicant 's relatives . They confirmed that in DATE there had been a passport check in PERSON , during which the second applicant had been asked questions about the presence of illegal items , including weapons , in her house . The witnesses stated that the second applicant had not been subjected to any threats or pressure . The documents also confirm that after the prosecutor 's office had been instructed to investigate the complaint of harassment , a number of questions put to the second applicant and her relatives concerned her application to the ORG . The second applicant stated that she had not received any threats after applying to the ORG .","DATE and DATE CARDINAL orders not to open a criminal investigation into the second applicant 's complaints of harassment were issued , each time being quashed by the supervising prosecutor . The last document issued on DATE by the Deputy Prosecutor of GPE ordered the investigators from that office to carry out an additional inquiry and to question the second applicant '","The detention centre in GPE , where the first applicant was detained , received extensive attention from various human - rights institutions , including ORG for ORG ( ORG ) , following allegations of severe ill - treatment of detainees . On DATE the head of the ORG delegation , Mr GPE , issued a statement to the NORP officials at the end of the visit to the NORP region of GPE . The statement said , inter alia , in relation to the visit to PERSON :","\u201c ... the information gathered by the delegation strongly indicates that many persons detained at GPE were physically ill - treated in the establishment during DATE to DATE . In different locations , the delegation has interviewed individually and in private a considerable number of persons who were held at GPE during that period . A clear pattern of physical ill - treatment of prisoners by custodial staff emerged . The ill - treatment alleged consisted essentially of kicks , punches and truncheon blows to various parts of the body ( excluding the face ) . The ill - treatment was said to have been inflicted principally in the central corridor of the detention facility , usually when prisoners were taken to an investigator 's room for questioning or when they were returned to their cells after such questioning ; apparently , prisoners were also on occasion physically ill - treated in the investigators ' rooms . Investigators were said to have been fully aware of the ill - treatment being inflicted , and some prisoners affirmed that it was inflicted at their instigation . In certain cases , the delegation has gathered medical evidence which is consistent with the allegations of ill - treatment made by the prisoners concerned . \u201d","On DATE the ORG issued a public statement concerning GPE , under LAW of LAW or Punishment . This step was prompted by the NORP authorities ' failure to cooperate with the ORG in relation to CARDINAL issues : ( i ) the carrying out of a thorough and independent inquiry into the events in the detention facility at GPE during the period from DATE to DATE ; and ( ii ) action taken to uncover and prosecute cases of ill - treatment of persons deprived of their liberty in GPE in the course of the current conflict . The statement said , in particular :","\u201c I. The information gathered by the ORG during its visits to the NORP region in DATE and in DATE strongly indicated that many persons were physically ill - treated in a detention facility at GPE during DATE to DATE . Ever since DATE , the ORG has been urging the NORP authorities to carry out a thorough and independent inquiry into events at this detention facility during that period . To date , an inquiry of the kind requested by the ORG has not been carried out and the NORP authorities have now made it clear that they have no intention of organising such an inquiry . A particularly disturbing aspect of the NORP authorities ' current position is their contention that no facilities intended for accommodating detainees were established by public authorities in the area of GPE during the period referred to by the ORG .","It is an indisputable fact that a detention facility operated at GPE during DATE to DATE , prior to the formal setting up in that village of a pre - trial establishment ( GPE no . CARDINAL ) by a Ministry of Justice Order dated DATE . The ORG 's delegation interviewed many persons who stated that they had been held in a detention facility at GPE during that period . Numerous NORP officials ( prosecutors , investigators , custodial staff ) met by the delegation confirmed that the establishment designated as from DATE as ORG no . CARDINAL had prior to that date been used as a detention facility . The ORG is in possession of a copy of the medical journal of the establishment covering DATE to CARDINAL DATE , in which DATE by day arrival of detainees ( and any injuries they bore ) was recorded ; the staff who completed that journal referred to the establishment first as an ' ORG ' ( temporary detention facility ) and at a later stage as a ' temporary reception and distribution centre ' . The NORP authorities have themselves , in earlier correspondence , provided to the ORG written statements signed by officers attesting to the fact that they worked in the detention facility during DATE to DATE as well as written statements signed by persons who certified that they were held at GPE during that period .","The NORP authorities ' contention that no detention facilities were established by public authorities at GPE during the period in question ( and that , as a result , an inquiry of the kind requested can serve no purpose ) is clearly untenable and constitutes a failure to cooperate with the ORG . \u201d","On DATE the ORG issued a second public statement in relation to GPE . It was prompted by allegations of continued recourse to torture and other forms of ill - treatment by members of the law - enforcement agencies and federal forces operating in GPE . It also described the action taken to bring to justice those responsible for ill - treatment as slow and ultimately ineffective .","Presidential Decree no . DATE of DATE on measures aimed at prevention of vagrancy and begging provided for the reorganisation of the system of \u201c reception and distribution centres \u201d for persons detained by the bodies of ORG for vagrancy and begging into centres of social rehabilitation for such persons . Under the Decree , persons could be placed in such centres on the order of a prosecutor for a period of DATE .","Article CARDINAL of the Code of Criminal Procedure ( CCP ) prohibits the disclosure of information from the preliminary investigation file . Under part CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings or prejudice the investigation . Divulging information about the private lives of participants in criminal proceedings without their permission is prohibited ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":["2-1","5-1"],"violated_bulletpoints":[],"non_violated_articles":["3","34","38"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113771","languageisocode":"ENG","respondent":"HUN","branch":"COMMITTEE","date":2012,"docname":"CASE OF BARANYI AND OTHERS v. HUNGARY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)","judges":"Andr\u00e1s Saj\u00f3;Paulo Pinto De Albuquerque","text":["NORP In DATE ORG authorised a private limited company ( \u201c the Company \u201d ) to issue payment cards to its customers . After DATE , however , purchase with such cards was no longer possible . Despite this fact , in DATE the applicants concluded agreements with the Company for so - called \u201c savings cards \u201d in which they invested various amounts of money .","NORP In DATE bankruptcy proceedings were initiated against the Company and its insolvency was established in DATE . The applicants recovered part of their investments through partial reimbursement by the Company . They sold their remaining claims against the ORG to third parties .","On DATE CARDINAL private individuals , including the applicants , who were all represented by CARDINAL law firm , brought an official liability action against ORG before ORG . They claimed that the respondent had not exercised its supervisory duties over the Company , therefore making it possible for the applicants to conclude the above - mentioned agreements which had resulted in substantial losses .","On DATE ORG dismissed their action , finding that the respondent had no duty of supervision according to the relevant domestic legislation .","On DATE ORG , acting as a second - instance court , quashed ORG decision and remitted the case to the first instance court due to the incomplete findings of fact .","In the resumed proceedings ORG found for the applicants on DATE . It established that the ORG had unlawfully overstepped the boundaries of its activities , which had been known to the respondent ; nevertheless , the latter could not prove that it had fulfilled its supervisory duties in this respect .","On DATE ORG dismissed their appeal . It acknowledged that there were omissions on the respondent \u2019s side . However , since the applicants had already sold their claims to third parties , the court held that they could have no substantive claims whatsoever in the circumstances .","The applicants lodged a petition for review with ORG . It upheld ORG decision on DATE , finding that the latter decision had been in compliance with the law ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111518","languageisocode":"ENG","respondent":"BIH","branch":"CHAMBER","date":2012,"docname":"CASE OF MURTI\u0106 AND \u0106ERIMOVI\u0106 v. BOSNIA AND HERZEGOVINA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicants were born in DATE and DATE respectively and live in PERSON .","They were both employed by ORG ( \u201c the company \u201d ) , an agricultural company based in PERSON . In DATE the workers\u2019 council of the company adopted a decision on the issuance of internal shares to the company \u2019s employees as part of its reorganisation from a socially owned company into a joint - stock company under the applicable regulations . It was decided that CARDINAL of the employees\u2019 salaries would be allocated towards instalment payments for the internal shares to be issued to them . On DATE the company \u2019s management board issued a series of resolutions authorising retention of earnings that resulted in an increase in the company \u2019s internal share capital . As a result of these board resolutions , the internal share capital amounted to PERCENT of the company \u2019s total share capital ( the remainder being held by the ORG ) . The reorganisation process continued until DATE , when the management of the company was taken over by the ORG following armed conflict in the north - western part of GPE ( where PERSON is located ) during the DATE - CARDINAL war . Following the ORG taking control of the company , the applicants were effectively unable to exercise any of their rights as shareholders , although the company continued to state the privately - held internal share capital allotted to its employees on its DATE balance sheets , as well as the ORG - owned capital , until DATE .","On DATE the applicants\u2019 employment was suspended , as well as that of many other employees of the company , and they were placed on a waiting list for potential future employment by the new management of the company . However , they were never subsequently offered the opportunity to resume their employment .","On DATE the applicants complained to ORG ( a domestic human - rights body set up under Annex DATE LAW ) in CARDINAL separate appeals .","On DATE , ORG , an auditing and consulting company based in GPE , conducted an audit of the transfer of ownership of the company . It held that the measures taken from DATE until DATE to establish internal share capital had not been in accordance with the law and that , therefore , such internal share capital had never been formed . Consequently , it concluded that the company was PERCENT ORG - owned .","On DATE ORG issued a decree placing the company on the list of the companies under its control on the basis of the ORG - owned capital .","On DATE ORG joined the applicants\u2019 cases ( see paragraph CARDINAL above ) and those of Mr PERSON and ORG of ORG and adopted a single decision . It was delivered on DATE . ORG held that the applicants had acquired possessions , in the form of their paid - up internal shares in the company , which were protected by law and found a violation of LAW No . CARDINAL to the Convention .","The reasons were set out in the decision , the relevant paragraphs of which read as follows :","\u201c CARDINAL . In summary , the ORG has concluded that the applicants acquired protected \u201c possessions \u201d in their paid internal shares in ORG for which payment was made on the basis of : ( a ) permanent deposits ; ( b ) allocation of parts of salaries , either on DATE basis during DATE , or on an DATE basis for DATE ; and ( c ) distribution of profits for DATE in proportion to the amount of paid internal shares . The decision on the results of the renewed ORG audit of DATE , which cancelled all internal shares in favour of state capital in ORG , deprived the applicants of these protected possessions . In addition , by exercising effective exclusive control over the management of ORG , the authorities of the Federation further interfered with the rights of the applicants to participate in the management and to share in the profits of ORG in relation to their paid internal shares . In these respects ORG did not act \u201c subject to the conditions provided by law \u201d . Consequently , the ORG concludes that the GPE has violated the rights of the applicants protected by LAW .","...","The applicants are correct that they have had no real and effective means to participate in the establishment of the ownership structure of ORG , as that has been established through the performance of the audit , which was conducted exclusively by the auditor PERSON [ ... ] . There have been no actual or effective proceedings in which the applicants have been invited to participate . Under the law , the only way for the applicants to participate in the establishment of the ownership structure of the company in which they are shareholders has been to challenge the appointment of the auditor and to challenge the results of the audit [ ... ] . This has not proven effective in this case . Moreover , the ORG considers that this type of process has not been adequate properly to allow the applicants to have access to courts for the determination of their civil rights , as guaranteed by LAW .","Furthermore , ORG ordered ORG to take all necessary steps to recognise the applicants as holders of internal shares in relation to the amount of their paid - up internal shares and to enable them to exercise their right as shareholders to participate in the management of the company . In particular , the Federation was ordered to : ( i ) employ , at its own expense , internationally recognised auditors to undertake an audit to determine the complete ownership structure of the company , in compliance with ORG ; ( ii ) establish the value of the ORG shares and have them formally registered ; and ( iii ) provide them with individual share certificates . Lastly , ORG ordered interim measures whereby certain procedures and arrangements were put in place as regards the company \u2019s management until the adoption of the final audit report and the convocation of a general meeting of the company \u2019s shareholders .","On DATE the GPE branch of ORG produced an audit report , which found that PERCENT of the company \u2019s capital was ORG - owned , the remaining PERCENT being in private ownership . In addition , PERCENT of the total capital had been assigned to individual private shareholders , whilst the outstanding PERCENT remained unassigned . The value of the ORG shares had not been established . Consequently , they could not attend the general meeting of the company \u2019s shareholders which was to be held on DATE .","On DATE ORG ( the legal successor of ORG ) decided to lift the interim measures indicated in the decision of DATE ( see paragraph CARDINAL above ) , after having received the final report on the completed audit from ORG and a signed copy of TIME first general meeting of the company \u2019s shareholders .","On DATE the ORG registered the changes in the ownership of the company resulting from its reorganisation .","On DATE a general meeting of the company \u2019s shareholders adopted a resolution authorising the distribution of the unassigned private share capital to individual shareholders ( see paragraph CARDINAL above ) .","On DATE the applicants were issued with individual share certificates and their shares were formally registered with ORG . It was established that the first applicant was entitled to CARDINAL shares with a market value of CARDINAL convertible marks ( BAM ) and the second applicant to CARDINAL shares with a market value of BAM CARDINAL . Consequently , the applicants were also allowed to attend general meetings of the company \u2019s shareholders .","On DATE the Constitutional Court of Bosnia and Herzegovina ( which became responsible for the supervision of the execution of ORG decisions after ORG ceased to exist ) concluded that ORG decision of DATE had been fully implemented .","In accordance with LAW ( ORG GPE , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , non - enforcement of a decision of ORG is a criminal offence :","\u201c An official of the ORG , the ORG or the Br\u010dko District who refuses to enforce a final and enforceable decision of ORG , ORG , ORG or ORG , or who prevents the enforcement of any such decision , or who frustrates the enforcement of any such decision in some other way , shall be punished by imprisonment for a term of DATE . \u201d"],"violated_articles":["6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100972","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF LOGVINENKO v. UKRAINE","importance":3,"conclusion":"Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award","judges":"Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva","text":["The applicant was born in DATE and is currently serving a life sentence in GPE .","On DATE the applicant was arrested and placed in the LOC police station of GPE on suspicion of murder .","On DATE the applicant was transferred to the GPE police temporary detention centre ( the \u201c ORG \u201d ) .","On DATE the applicant was transferred to the GPE no . CARDINAL pre - trial detention centre ( \u201c the GPE \u201d ) and on the same date placed in ORG for in - patient psychiatric assessment .","On DATE the applicant was transferred back to the GPE .","On DATE ORG of GPE convicted the applicant of murder and sentenced him to life imprisonment .","On DATE ORG upheld this judgment and it became final .","NORP In DATE the applicant was transferred to LOC no . CARDINAL Penitentiary , GPE ( \u201c Penitentiary no . CARDINAL \u201d ) .","In DATE the applicant was transferred to Kherson no . CARDINAL Penitentiary ( \u201c Penitentiary no . CARDINAL ) and placed in the prison hospital .","In DATE ( prior to his detention ) the applicant was diagnosed with infiltrated tuberculosis of the lung . In DATE he was also diagnosed with late stage of HIV ( Aids ) .","According to the applicant , throughout DATE the medical assistance afforded to him on account of his HIV and tuberculosis was grossly inadequate , while the physical arrangements of his detention were incompatible with his state of health .","NORP In particular , as regards HIV , no treatment was offered whatsoever . Furthermore , in spite of the doctors ' recommendations and the applicant 's numerous requests , throughout the period of his detention he was denied blood tests to establish his count of CD-CARDINAL immunity cells , which are instrumental in combating tuberculosis and possibly inhibited as a result of HIV . On several occasions the applicant was informed that antiretroviral therapy would become available to him after the successful treatment of his tuberculosis .","As regards the treatment for tuberculosis , it was irregular and insufficient . In particular , in spite of the applicant 's numerous complaints about his state of health ( namely , shortness of breath , fever , chest pain , and so on ) , no medical assistance whatsoever was provided to him DATE .","On CARDINAL DATE the applicant was examined by a panel of the GPE medical officers , who found that he was at risk of death if his state of health was not promptly addressed and recommended his release in view of the fact that the GPE lacked the necessary facilities for his treatment . The applicant submitted a copy of the letter from the medical panel addressed to the GPE governor and a letter from the governor to the district court dated DATE requesting his release on humanitarian grounds . It is not clear whether these letters generated any reaction from the court . The applicant , however , remained in detention .","NORP Since DATE the applicant has been receiving treatment for tuberculosis , but it has not been effective . On many occasions he was denied routine consultations in spite of his demands . However , even when he was able to obtain consultations , the recommendations of the doctors were not followed through effectively . For example , on DATE the applicant consulted a panel of medical specialists and was advised to undergo a number of tests . However , these tests were not carried out because the necessary facilities were unavailable , with the exception of CARDINAL blood tests ( biochemical and general ) carried out in DATE . The applicant was likewise unable to obtain timely tests on a number of other ( unspecified ) occasions in spite of his demands .","The applicant 's recovery from tuberculosis was further impeded by the physical conditions of his detention . In all of the facilities in which he was detained , the applicant was largely confined to his cell . In the ORG he had to sleep on a bare mattress , as no linen was provided . Furthermore , he had no opportunity to wash , shave or take outdoor exercise . In Penitentiary no . CARDINAL the cells had no mirrors or drawers and were poorly heated . The air was so damp that the walls and ceilings were covered with fungi and mould , as well as frost during DATE . The drinking water was rusty and hot water for washing was not available more than once DATE . Despite suffering from active tuberculosis , on some occasions the applicant had to share a cell with other prisoners , including those who were healthy , which provoked conflicts . As a result of the lack of treatment and the inadequate conditions of his detention , the applicant caught bronchitis and pneumonia on various occasions , while his tuberculosis spread further and became chronic .","By way of evidence , the applicant presented a statement by his cellmate , PERSON According to him , he shared the applicant 's cell on various occasions for periods lasting from DATE to DATE . Their cell was very cold and no adequate clothing was provided . On numerous occasions the applicant 's requests for medical assistance were ignored and the actual administration of anti - tuberculosis drugs was irregular , provoking the aggravation of his condition and resistance of the bacteria to treatment .","On numerous occasions the applicant complained to various authorities , including the ombudsman , ORG and the local ORG , of the inadequacy of his medical assistance and the incompatibility of the conditions of his detention with his state of health . His complaints , however , were to no avail .","On CARDINAL occasions the applicant attempted to lodge complaints about the conditions of his detention with CARDINAL different courts ; however , his submissions were rejected with reference to a lack of territorial jurisdiction . At CARDINAL time the applicant demanded that a court clerk be commissioned to assist him in drafting his submissions , but this request was refused as not based on law . The applicant never appealed against the court decisions not to examine his claims .","In DATE , following the applicant 's numerous complaints to the prosecutor 's office , ORG contacted the Chief of ORG for ORG and the governor of Penitentiary no . CARDINAL , urging them to take urgent measures to ensure that the applicant receive a comprehensive medical examination . Following this intervention , in DATE the applicant was transferred to ORG no . CARDINAL ORG . However , following the applicant 's transfer , healthcare arrangements did not improve significantly . In particular , no HIV therapy was made available to him .","The Government presented extensive handwritten medical notes , which are hardly legible , and a typed synopsis of the applicant 's treatment history , on the basis of which they alleged that the applicant was regularly and consistently supervised and received treatment in compliance with the applicable ORG guidelines .","According to the synopsis , on DATE the applicant was examined by a tuberculosis specialist and diagnosed as suffering from focal tuberculosis of the upper part of the right lung in the consolidation stage .","On DATE the applicant was x - rayed . His x - ray indicated small low - intensity foci of the tuberculosis infection in the upper part of the right lung . Following this test , the applicant was prescribed standard treatment of a combination of \u201c first - line \u201d anti - tuberculosis antibiotics ( streptomycin , isoniazid , rifampicin , ethambutol and pyrazinamide ) and vitamins .","The applicant was further examined by a tuberculosis specialist and ( or ) x - rayed in DATE ( infiltrating tuberculosis ; same treatment continued ) ; DATE ( diffusion and consolidation of the infection \u2013 positive dynamics ) ; DATE and DATE ( disseminated tuberculosis of the upper parts of both lungs , diffusion and consolidation stage ) ; DATE ( positive dynamics : namely , large remaining modifications after the tuberculosis infection \u2013 anti - recurrence treatment with \u201c first - line \u201d antibiotics and diet prescribed ) ; DATE ( same as before ) ; DATE and DATE ( recurrence of the tuberculosis infection in both lungs , including tissue destruction ) ; DATE and DATE ( recurrent tuberculosis , consolidation stage ( positive dynamics ) , same treatment ) ; DATE and DATE ( same diagnosis including tissue destruction ; same treatment ) ; DATE ( chronic tuberculosis including pulmonary fibrosis , numerous polymorphous foci of various sizes and numerous tuberculomas ) ; DATE ( results unspecified ) ; DATE ( the number of foci increased in both lungs ) ; DATE ( slight diffusion and consolidation of the infection foci ( positive dynamics ) ) .","The synopsis further gives a detailed account of the numerous tests carried out of the applicant 's blood , urine and sputum DATE and a record of a drug - resistance test taken in DATE . Following the test for drug resistance , it was established that the applicant was resistant to some of the \u201c first - line \u201d anti - tuberculosis medication and his treatment regime was supplemented with some \u201c second - line \u201d drugs .","In addition , in DATE and DATE the applicant received anti - inflammatory treatment on account of pneumonia in DATE and was treated for bronchitis in DATE . In DATE the applicant was diagnosed with chronic bronchitis and hepatitis .","In the light of the positive tuberculosis dynamics , the applicant began preparing for HIV therapy at DATE .","According to the applicant , immediately upon his and CARDINAL other convicts ' arrival at Penitentiary no . CARDINAL in DATE , they had their heads covered with sacks , were forced onto their knees , handcuffed and beaten by unnamed junior officers for no reason . Furthermore , they were threatened with a dog , strip searched , and then forced to do sit - ups which were counted . Subsequently , on numerous occasions the officers continued to humiliate the applicant and create a stressful atmosphere . In particular , on numerous occasions they beat him , threatened him with a dog , knocked on the door with a stick for no reason , interrupted his sleep , opened the door to the cell suddenly for various checks , and verbally insulted him . During the TIME the applicant was forbidden to lie on the bed . Furthermore , when the applicant needed to leave the building , for instance for fluorography , his head was covered with a sack and he was made to walk in an unnatural position ( \u201c a duck\u201d- legs bent with hands behind the head ) . On DATE the applicant was beaten for lying on his bed during the daytime when ill and on DATE for refusing to assume the \u201c duck \u201d walking position . Each day the applicant was handcuffed and body - searched , being forced to stand barefoot on the concrete floor while the officers searched his shoes .","The applicant presented a handwritten statement of claim dated DATE referring to the above conduct of the prison officers and addressed to ORG of Kyiv . However , he did not provide any evidence that this statement was received by the court or even despatched from the penitentiary .","According to the Government , none of the incidents mentioned above concerning the applicant 's ill - treatment at the hands of the penitentiary officers ever took place .","DATE Ukraine , insofar as relevant , reads as follows :","\u201c Human and citizens ' rights and freedoms are protected by the courts .","Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ...","Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . \u201d","Article CARDINAL - CARDINAL of the Code ( Chapter CARDINAL-A ) provided in so far as relevant :","\u201c Every citizen has the right to apply to court ... with an application , should he consider that a decision , action or inactivity of a public authority , legal person or official during the exercise of their administrative functions has violated his rights or freedoms ... \u201d","DATE Code , insofar as relevant , reads as follows :","\u201c CARDINAL . The task of the administrative justice system is the protection of the rights , freedoms and interests of physical persons , and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...","Any decisions , actions or inactivity of public authorities can be appealed against in administrative courts , except for cases in which the LAW and laws of GPE foresee a different procedure of judicial appeal against such decisions , actions or inactivity ... \u201d","According to paragraph CARDINAL of the Order , depending on the stage of the disease , HIV sufferers should have their count of CD-CARDINAL cells tested every one to six months .","According to paragraphs CARDINAL of the ORG , approved by the LAW , medical assistance for HIV sufferers is viewed as comprising compulsory dispensary supervision , treatment of opportunistic diseases and access to antiretroviral therapy . In - patient treatment of patients with stage III - IV HIV suffering from active tuberculosis infections should be administered in prison hospitals specialising in the treatment of tuberculosis .","According to paragraph CARDINAL of the LAW , tuberculosis treatment was to be administered in specialised anti - tuberculosis institutions and to consist of CARDINAL phases : basic chemotherapy and rehabilitation . The basic chemotherapy course consisted of intensive and supportive treatment stages with \u201c first - line \u201d anti - tuberculosis antibiotics ( streptomycin , isoniazid , rifampicin , ethambutol and pyrazinamide ) , or , in the event of resistance of the infection to the above drugs , with \u201c second - line \u201d or \u201c reserve \u201d antibiotics .","According to paragraph CARDINAL , to obtain maximal results , medical or surgical treatment was to be implemented in conjunction with a particular hygiene and exercise regime ( complete bed rest , part - time bed rest or training regime ) prescribed to an individual patient based on an assessment of his condition .","Treatment was to be followed by rehabilitation , including curative exercise , massage and physiotherapy , which was recommended to be started within CARDINAL to DATE after the antibiotic treatment .","According to paragraph CARDINAL , within DATE of starting treatment , a medical commission was to examine whether the intensive treatment stage could be substituted by the supportive stage based on x - ray and microbiological tests . If treatment appeared ineffective at this stage the patient was to be tested for drug resistance , and , if necessary , his case referred to a more qualified institution . In the event that chemical treatment remained ineffective , surgical intervention was to be explored as a possible alternative .","According to paragraph CARDINAL.CARDINAL.CARDINAL.CARDINAL , it was recommended that antibiotic treatment be supplemented with anti - pathogenic medicines .","According to paragraph CARDINAL , tuberculosis patients were to be continuously monitored , which included x - rays DATE ; blood ( general and biochemical ) and urine tests DATE during the intensive therapy stage and once DATE during the supportive stage .","On DATE Order no.CARDINAL was replaced with the Order no . CARDINAL approving an updated LAW ; however , the major approaches remained the same .","According to the LAW , patients co - infected with HIV and tuberculosis should predominantly be administered anti - tuberculosis therapy first , based on the same principles as for patients suffering from tuberculosis only . Under the general rule , antiretroviral therapy should be administered after the completion of the intensive anti - tuberculosis therapy stage , unless the level of CD-CARDINAL immunity cells is lower than a certain threshold , in which case antiretroviral therapy is administered immediately . On average , the level of CD-CARDINAL cells is expected to be tested once DATE .","Relevant parts of ORG report on its visit to GPE in DATE read as follows :","\u201c ...","Access to medical care in specialised facilities remains problematic for this category of prisoner , both male and female ...","Further , the transfer of life - sentenced prisoners suffering from tuberculosis to specialised medical penitentiary facilities was still not possible . Such persons were kept in their detention units , isolated in their cells , sometimes for DATE .","The ORG recalls that obliging prisoners to stay in an establishment where they can not receive appropriate treatment due to a lack of suitable facilities or because such facilities refuse to admit them , is an unacceptable state of affairs which could amount to inhuman and degrading treatment .","The ORG recommends that the NORP authorities ensure that life sentenced prisoners DATE men and women \u2013 who require treatment in a specialised hospital facility can be transferred to such a facility without undue delay . \u201d","Other relevant domestic and international materials can be found in the judgments in the cases of ORG v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) , PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) and PERSON and PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107206","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF ALTU\u011e TANER AK\u00c7AM v. TURKEY","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi","text":["The applicant was born in DATE and lives in GPE .","He is a professor of history who researches and publishes extensively on the subject of the historical events of DATE concerning the NORP population in GPE .","On DATE the applicant published an editorial opinion in AGOS , a bilingual NORP - Armenian newspaper , entitled \u201c PERSON , CARDINAL \u201d . In this editorial opinion the applicant criticised the prosecution of PERSON , the late editor of AGOS , for the crime of \u201c denigrating GPE \u201d under LAW . He also requested , in an expression of solidarity , to be prosecuted on the same ground for his opinions on the NORP issue .","On DATE a complaint was lodged against the applicant with the Ey\u00fcp public prosecutor . The complainant , PERSON , alleged that the applicant \u2019s defence of PERSON in the editorial published in AGOS violated ORG , CARDINAL ( incitement to commit an offence ) , CARDINAL ( praising a crime and a criminal ) and CARDINAL ( incitement to hatred and hostility among the people ) of LAW . Following this complaint , the applicant was summoned to the PERSON public prosecutor \u2019s office to make a statement . He was informed that he would be brought to the public prosecutor \u2019s office by force , in accordance with ORG CARDINAL and CARDINAL of LAW , if he did not comply with the summons .","On DATE the applicant went to the PERSON public prosecutor \u2019s office to submit his defence statement in relation to the criminal complaint against him . The applicant stated , in the presence of his CARDINAL lawyers , that he had indeed written the said article published in AGOS . He explained that the policy of the Ittihad ve GPE towards the NORP in DATE could well be defined as genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide of ORG of DATE . He had written the said article in order to express his opinion on the NORP issue in the context of freedom of the press . He pointed out that he was a professor of history who had been working on this subject for DATE and that he had expressed his opinion several times in his books and articles . He had not written the impugned article in order to serve any association , organisation , race or ethnic group , or to denigrate a nation . The applicant \u2019s CARDINAL lawyers also argued that the applicant \u2019s statements did not amount to a crime .","On DATE the investigation against the applicant was terminated by the PERSON public prosecutor , who noted that at all the scientific seminars he had taken part in and in his publications the applicant had expressed the opinion that the events that took place DATE could be described as genocide . Having examined the applicant \u2019s article published in AGOS , the public prosecutor concluded that the applicant \u2019s statements in his capacity as a professor of history came within the realm of protected expression under LAW and that as such they did not constitute denigration of GPE . Nor did they amount to incitement to commit a crime , or to praising a crime or criminal , or incitement to hatred and enmity amongst the people .","On DATE the complainant , PERSON , filed an objection against the above - mentioned decision of non - prosecution .","On DATE ORG of ORG dismissed the complainant \u2019s objection . Having examined the investigation carried out and the reasons given by the PERSON public prosecutor , the court held that the decision of non - prosecution was in accordance with procedure and law .","On DATE a judgment was issued by ORG against PERSON ( the editor of AGOS ) and PERSON ( the owner of AGOS ) whereby both were sentenced to DATE imprisonment under LAW for accusing the NORP nation of genocide via the press . Although the applicant was not a party to those proceedings , the court decided of its own motion that the PERSON public prosecutor had erred in discontinuing the investigation against the applicant on DATE and held that this matter should be duly investigated by the prosecutor \u2019s office .","On DATE another complaint was lodged against the applicant , by a certain ORG , with ORG office in PERSON . The complainant alleged that the applicant \u2019s statements published in AGOS on DATE violated LAW .","On DATE ORG issued a decision of non - prosecution . He noted that a similar complaint by another complainant had been examined and dismissed by a non - prosecution decision on DATE .","On DATE the applicant made an urgent request for interim measures under Rule CARDINAL of ORG . He also requested that the respondent Government be notified of the introduction of the application in accordance with Rule CARDINAL of the Rules of Court and that the case be given priority under Rule CARDINAL of ORG .","On DATE the applicant \u2019s requests under Rules CARDINAL , DATE and CARDINAL of ORG were rejected .","The Government submitted to the ORG a decision of nonprosecution issued by ORG office on DATE . It appears from this decision that on DATE a criminal complaint was lodged by a certain PERSON , who alleged that the applicant had attempted to denigrate the Republic and to influence the trial of PERSON by his editorial opinion dated DATE published in the AGOS newspaper . The public prosecutor who examined the complaint concluded that the alleged offence was time - barred and therefore issued a decision of non - prosecution .","According to the information provided by the applicant \u2019s representative on DATE , no further investigation had been instigated against the applicant after the judgment of ORG dated DATE .","The Government submitted a list of CARDINAL books published by the applicant . It appears that these books are on sale in GPE and that they mainly concentrate on the NORP question . A selection of the books included is as follows :","\u2013 \u201c The NORP question has been resolved ; NORP documents concerning the policies towards the NORP during DATE \u201d , DATE ;","\u2013 NORP national identity and the NORP question : \u201c From ORG to ORG , DATE ;","\u2013 \u201c Lifting the NORP taboo , is there any solution other than dialogue \u201d CARDINAL ; and","\u2013 \u201c Human Rights and the NORP Question \u201d , DATE .","The Government further noted that , contrary to the applicant \u2019s allegations that he had been prevented from pursuing his research on the NORP issue , he had been given permission to conduct research in ORG by ORG . DATE and DATE the applicant personally consulted the NORP archives and had been granted further permission to photocopy CARDINAL documents . On page CARDINAL of his book entitled \u201c The NORP question has been resolved \u201d the applicant thanked ORG for assisting him in his research .","In an annex to their observations , the Government have furnished the ORG with sample copies of non - prosecution decisions issued by public prosecutors and judgments of acquittal given by criminal courts in cases concerning prosecutions under LAW and LAW . In particular , the suspects were mainly accused of insulting or denigrating the army , the security forces , the judiciary or the Republic .","In these decisions and judgments , given DATE , the prosecuting authorities either dropped the charges against the suspects , considering that the necessary elements of the crime in question were not present , or terminated the proceedings on the grounds that ORG had refused permission to prosecute the suspects . In acquitting the suspects , the criminal courts relied on the case - law of ORG in cases concerning LAW .","The above - mentioned documents furnished by the ORG included CARDINAL judgments given by the ORG and ORG in respect of CARDINAL prominent writers , namely ORG and PERSON .","In the criminal proceedings against ORG had examined a criminal complaint filed by a group of lawyers and an association called ORG , who alleged that ORG had denigrated \u201c FAC as a result of statements about the NORP issue in her book entitled \u201c GPE ve GPE \u201d ( \u201c The PERSON of GPE \u201d in LANGUAGE ) . In a judgment dated DATE , the court acquitted PERSON , holding that the book in question was fiction and that the impugned statements made by the characters in the novel could not be taken as constituting an offence of denigrating GPE . Having examined the novel written by the accused , the court concluded that the statements contained in the book should be examined in the context of freedom of expression . The court , however , observed that the limits of the concept of \u201c LOC \u201d should be determined and based on a solid ground by the legislator . It further remarked that opinions should only be compared with opinions . Otherwise , one could not talk of freedom of opinion and expression and would be forced to adopt uniform thoughts .","In the case brought against PERSON , ORG had examined a criminal complaint lodged by CARDINAL individuals who alleged that the writer had denigrated GPE in a speech he had given abroad . In a judgment dated DATE , the court decided to discontinue the proceedings on the ground that the requisite permission to press charges against the accused had not been obtained from ORG . It thus ruled that the lack of permission should be considered as a refusal and that the proceedings should be terminated .","The Government submitted statistical information which indicated the situation by DATE . They noted that following the amendments made to LAW on CARDINAL DATE there had been a significant decrease in prosecutions under LAW . In this connection , of the CARDINAL authorisation requests made by public prosecutors to commence criminal proceedings under LAW , ORG had granted CARDINAL .","The Government further pointed out that DATE the number of sets of criminal proceedings instituted LAW ( Article CARDINAL\/CARDINAL of the former Criminal Code ) was CARDINAL . Of those , CARDINAL cases had resulted in convictions and CARDINAL in acquittals ; CARDINAL cases were still pending following ORG decisions to quash the first - instance courts\u2019 judgments .","In their supplementary observations dated DATE , the Government noted that DATE and DATE ORG had received CARDINAL requests for authorisation to institute criminal proceedings under LAW . ORG had refused CARDINAL of these requests but granted CARDINAL . In this connection , the Government furnished the ORG with sample copies of decisions of refusal issued by ORG . It appears from these decisions that ORG extensively relied on the case - law of the ORG in cases concerning LAW when refusing public ORG requests for authorisation to institute criminal proceedings under LAW . The Government further noted that in CARDINAL cases where ORG refused authorisation to institute criminal proceedings , the criminal complaints mainly concerned publications in the press .","ORG DATE Progress Report on GPE stated :","\u201c Following the adoption of the amendments to LAW , NORP courts had forwarded , by DATE ] , CARDINAL cases to the Minister of ORG for prior authorisation . This requirement concerns cases at the investigation stage or for which judicial proceedings have started . By DATE , ORG had reviewed CARDINAL cases and refused to grant permission to proceed in CARDINAL cases .","However , the wording of LAW remains largely the same and the prior authorisation requirement opens up the possibility that the article will become subject to political consideration . So far , the Minister of ORG authorised the criminal investigations to continue in CARDINAL statements made by a NORP writer on the NORP issue shortly after the assassination of the NORP journalist of NORP origin , PERSON . Furthermore , there is legal uncertainty as regards cases which had been granted authorisation by the Minister of ORG under the former LAW \u201d .","The applicant highlighted examples of post - amendment LAW cases with specific reference to the NORP issue . He noted that in DATE ORG had authorised the continuance of the trial of GPE for stating that PERSON had been killed not only for being an NORP , but also for raising the issue of genocide . Another example was ORG conviction and sentencing on DATE to CARDINAL months\u2019 imprisonment ( subsequently commuted to a fine ) under LAW for translating and publishing a book about the NORP genocide entitled \u201c The Truth Will Set Us Free \u201d , written by PERSON .","Furthermore , according to ORG DATE Human Rights Report on GPE , the Minister of ORG himself ( PERSON ) also made a statement that could be interpreted as instructions to the judiciary : \u201c I will not let someone call my state \u2018 murderer\u2019 . This is not freedom of expression . This is exactly what the crime of insulting the person of the state is . \u201d","The applicant also submitted a report published by ORG of ORG , for DATE . According to this report a total of CARDINAL people , CARDINAL of whom were journalists , were prosecuted in CARDINAL freedom of expression cases .","In its editions of CARDINAL and DATE , CARDINAL DATE and DATE the magazine PERSON published articles alleging that the applicant was a paid employee of the NORP intelligence service and that he had been commissioned to conduct research and write on the subjects \u201c Violence in NORP history \u201d , \u201c Torture in NORP history \u201d and \u201c the Armenian Genocide \u201d . These studies had been commissioned and financed by the NORP intelligence service and had been published in a book .","In its edition dated DATE the DATE newspaper PERSON published an article entitled \u201c The NORP Intelligence Chief and PERSON couple \u201d containing allegations that the applicant \u2019s studies were determined and financed by the NORP intelligence service .","In its editions dated CARDINAL , DATE and DATE , the PERSON newspaper published articles describing the applicant as an individual who had betrayed GPE and vomited hate towards GPE in all of his books and speeches .","By press releases , the applicant and his family condemned the allegations published by the PERSON newspaper and called for apology . They referred to the killing of PERSON and said that the press should act with responsibility and sensibility when publishing articles containing allegations labelling someone as a \u201c traitor \u201d . They further warned against GPE becoming a country where citizens could be lynched with the help of the press .","By a judgment dated DATE ORG Instance dismissed the applicant \u2019s claims for non - pecuniary damage . The court held that even though the words used and allegations made by the defendants were offensive they were within the limits of permissible criticism . This judgment was confirmed by a ORG decision dated DATE .","On DATE the applicant brought an action in ORG of First Instance requesting the court to order the PERSON newspaper to publish a letter of correction in response to the offensive articles published on CARDINAL , DATE and DATE . By a decision dated DATE the court dismissed the applicant \u2019s request . It held that even though the criticism contained in the impugned articles was harsh in tone , it was covered by the right to freedom of expression enjoyed by the press in a pluralist democracy .","On DATE the ORG newspaper published an article criticising the attitude of the judiciary in regard to the media campaign against the applicant .","The applicant claimed that he had received hate mail from unknown persons . He submitted a copy of an e - mail sent by a person insulting him and threatening him with death as a result of his views on the NORP issue .","DATE a number of articles were published on internet portals and in magazines and newspapers criticising the attacks against the applicant and expressing support for him .","Former LAW reads as follows :","\u201c CARDINAL . A person who publicly denigrates GPE , ORG or ORG of GPE shall be sentenced to a penalty of imprisonment for a term of DATE .","A person who publicly degrades the Government of GPE , the judicial bodies of the ORG or the military or security organisations of the ORG shall be sentenced to a penalty of imprisonment for a term of DATE .","NORP In cases where denigration of GPE is committed by a NORP citizen in another country the punishment shall be increased by CARDINAL .","The expression of an opinion for the purpose of criticism does not constitute an offence . \u201d","The new text of LAW , as amended on DATE , reads as follows :","\u201c CARDINAL . A person who publicly degrades the NORP nation , ORG , ORG of GPE , ORG or the judicial bodies of the State , shall be sentenced to a penalty of imprisonment for a term of DATE .","A person who publicly degrades the military or security organisations of the ORG shall be sentenced to a penalty in accordance with paragraph CARDINAL above .","NORP The expression of an opinion for the purpose of criticism does not constitute an offence .","The conduct of an investigation into such an offence shall be subject to the permission of the Minister of ORG . \u201d","In the criminal proceedings against PERSON ( see PERSON GPE , nos . CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL , CARDINAL and CARDINAL , \u00a7 CARDINAL , ECHR DATE ... ( extracts ) ) , ORG of ORG interpreted the term GPE as follows ( ORG , NORP , ORG , judgment of DATE ) :","\u201c ... [ T]he term \u201c LOC ( T\u00fcrkl\u00fck ) refers to the human element of the ORG ; that is to say , ORG . GPE is constituted by the national and moral values as a whole , that is , human , religious and historical values as well as the national language and national feelings and traditions ... \u201d","ORG DATE Progress Report on GPE stated the following , insofar as it concerns the use of LAW in cases concerning freedom of expression :","\u201c ... [ CARDINAL NORP legal framework still fails to provide sufficient guarantees for exercising freedom of expression and , as a result , is often interpreted in a restrictive way by public prosecutors and judges . There are still some prosecutions and convictions based on LAW","ORG DATE Progress Report on GPE stated , insofar as relevant , the following :","\u201c ... As regards freedom of expression , an increasingly open and free debate continued on a wide scale in the media and public on topics perceived as sensitive , such as the NORP issue , minority rights , the NORP issue and the role of the military .","There are few cases initiated on the basis of LAW ( TCC ) after it was amended in DATE .","According to the Ministry if ORG , since the amendment to LAW , a decrease in the number of cases opened has been observed . The figures below cover examinations concluded DATE and DATE : CARDINAL files examined , CARDINAL files for which permission was denied , CARDINAL files for which permission was granted , PERCENT file for which permission was granted ... \u201d","In his report dated DATE PERSON Commissioner for Human Rights of ORG , stated the following :","\u201c CARDINAL . Following his visit to GPE in DATE , the Commissioner expressed his concern regarding LAW , notwithstanding an amendment adopted in DATE which led to a decrease in the number of proceedings brought under this article . On DATE the ORG delivered its judgment in the case of Dink v. GPE in which it found a violation of LAW on account of PERSON conviction based on LAW . The Court held that PERSON conviction for denigrating NORP identity prior to his murder did not correspond to any \u201c pressing social need \u201d which is one of the major conditions on which interference with one \u2019s freedom of expression may be warranted in a NORP society . The Commissioner considers that the amendment adopted in DATE , which subjects prosecution to a prior authorisation by ORG in each individual case , is not a lasting solution which can replace the integration of the relevant ORG standards into the NORP legal system and practice , in order to prevent similar violations of the LAW . \u201d"],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79602","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF AKPINAR AND ALTUN v. TURKEY","importance":2,"conclusion":"No violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3;Violation of Art. 3;Not necessary to examine Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"","text":["The applicants were born in DATE and DATE and live in GPE ( GPE ) and GPE respectively . The application concerns the killing of the first applicant 's brother , PERSON , and the second applicant 's son , PERSON PERSON , the alleged mutilation of their corpses by security forces and the alleged failure to conduct an effective investigation into the applicants ' allegations .","On DATE ORG , and PERSON were killed by security forces in the course of an armed clash which occurred in the village of GPE , ORG district ( province of GPE ) .","According to the scene - of - incident report ( olay yeri tespit tutana\u011f\u0131 ) drawn up and signed by CARDINAL gendarmerie officers from the ORG district gendarmerie command , security forces had set up an ambush in GPE in order to capture members of the TKP - ML \/ TIKKO ( ORG of GPE \/ MarxistLeninist \/ Turkish Workers and ORG ) . CARDINAL members of the organisation arrived in the village and were ordered to surrender . A clash broke out after they opened fire . When the firing ceased the security forces found QUANTITY corpses . They also found CARDINAL automatic rifles , CARDINAL chargers and CARDINAL cartridges next to the bodies . The other QUANTITY persons fled . It is stated in the report that the security forces used CARDINAL hand grenades , CARDINAL ORG - type bullets , CARDINAL GCARDINAL-type bullets , CARDINAL PERSON - type bullets , and other ammunition used for illumination . The gendarmerie officers further drew a sketch - map of the scene of the incident .","On DATE the rifles and the cartridges found after the clash were sent to the GPE provincial gendarmerie command for a ballistic examination .","On DATE , upon the request of the GPE gendarmerie command , CARDINAL ballistic experts at the gendarmerie general command conducted a ballistic examination of CARDINAL rifles and CARDINAL of the cartridges found at the scene .","Following the incident , officers from the ORG gendarmerie command took the corpses to their command 's yard . The bodies had been identified as those of ORG and PERSON .","On DATE post - mortem examinations were carried out on the deceased in the ORG gendarmerie command 's yard by a medical expert , in the presence of the ORG public prosecutor . According to the expert 's report , PERSON had received CARDINAL bullets to his head , shoulders , chest and legs . It was also noted that CARDINAL of his left ear had been cut off . The medical expert observed that ORG had received CARDINAL bullets to his head , shoulders , arms , chest , abdomen and lumbar region . He further observed that both of ORG ears had been cut off . The expert noted numerous other wounds on the bodies . He concluded that the cause of their deaths was haemorrhaging and damage to the cerebral tissue as a result of wounds caused by firearms . He considered that there was no need to carry out a full autopsy as the cause of death was clear from the findings of the examination . During the post - mortem examination , photographs of the deceased were taken . After the examination the corpses were placed in the ORG morgue .","On DATE , the gendarmerie officers took the statement of GPE , an inhabitant of GPE who was wounded during the armed clash on DATE . GPE maintained , inter alia , that at TIME terrorists had arrived at the village and asked him to take them to the house of the village headman ( muhtar ) . On their way , shots were fired . He hid in a ditch and , subsequently , in the garden of a house . GPE contended that he had remained hidden until TIME , whereupon , having dressed his wound , soldiers had taken him to ORG hospital .","On DATE the corpses of PERSON and ORG were returned , respectively , to the second applicant , PERSON , and to ORG brother , PERSON .","On an unspecified date , the ORG public prosecutor initiated an investigation ( no . CARDINAL ) against the deceased and CARDINAL others , who were all suspected of belonging to the terrorist organisation ORG .","On DATE the applicants filed a complaint with the ORG public prosecutor 's office . In their complaint they maintained that PERSON PERSON 's left arm had been cut . They further contended that the ears of ORG and PERSON had been cut off and that there were various injuries on their bodies which could not have been caused by firearms . The applicants alleged that their relatives had been tortured before they died or , alternatively , that the security forces had ill - treated the corpses . The applicants requested the public prosecutor to initiate an investigation against those members of the security forces who were responsible for the mutilation of their relatives ' bodies .","On an unspecified date the ORG public prosecutor opened an investigation into the applicants ' allegations ( no . CARDINAL ) .","On DATE the ORG public prosecutor decided to join investigations ORG . CARDINAL and DATE , since they concerned the same incident .","On DATE GPE , a gendarmerie private who had participated in the military operation in ORG on DATE , gave statements to the ORG public prosecutor . He contended that there had been an armed clash between terrorists and the security forces on DATE in question and that , at the end of the clash , CARDINAL terrorists had been found dead . GPE further maintained that these CARDINAL persons had been killed by special teams . He stated that the ears of the deceased had already been cut off when he saw them , and that he had signed the scene - of - incident report without having read it .","On DATE the ORG public prosecutor took statements from PERSON , the deputy gendarmerie station commander in the ORG gendarmerie command . He maintained that in DATE there had been a military operation conducted by gendarmerie commando teams together with a special team , and that he had participated in this operation as a guide . He stated that , following the armed clash between the terrorists and the security forces , he and his team had taken the corpses to the town centre . He did not realise that the terrorists ' ears had been cut off since the corpses were covered with mud . He opined that the inhabitants of GPE village could have cut off the terrorists ' ears out of fear because the armed clash had occurred in their village .","On DATE GPE , another gendarmerie private who was performing his military service in ORG in DATE , gave statements to the LOC public prosecutor in GPE . He maintained that ORG and PERSON had been killed by special teams . He contended that he had not approached the corpses . He saw that hand grenades had exploded on the bodies . He denied the allegation that he had ill - treated them .","On DATE , a sergeant who had served in ORG DATE , gave statements to the ORG public prosecutor . The sergeant contended that he had neither seen nor ill - treated the corpses . He maintained that the damage to the corpses could have been caused by firearms .","On DATE the ORG public prosecutor decided to separate the investigation against the officers who had participated in the operation conducted on DATE from the investigation against the deceased and the CARDINAL other suspects who had fled on DATE . In his decision , he noted that these matters fell within the jurisdiction of different courts . The public prosecutor identified the charge against the security forces as that of \u201c insulting corpses \u201d .","On DATE the ORG public prosecutor filed a bill of indictment charging the gendarmerie officers GPE , GPE , GPE and ORG with \u201c insulting \u201d the corpses of ORG and PERSON , contrary to LAW .","On DATE ORG Instance placed those officers on trial .","On DATE GPE made statements before ORG , denying the allegation that he had cut the ears off the corpses . He maintained that he had neither seen nor ill - treated them .","On DATE ORG held a hearing .","On DATE the first - instance court decided to defer the imposition of a final sentence upon the accused , pursuant to section CARDINAL of PERSON no . DATE . The court held that the criminal proceedings against the accused would be suspended and a final sentence imposed should they be convicted of a further intentional offence within DATE of this decision .","The judgment of DATE became final , as neither the public prosecutor nor the accused officers appealed against it .","A description of the domestic law at the material time can be found in PERSON v. GPE ( judgment of DATE , Reports of ORG , ORG \u00a7 DATE and CARDINAL ) , PERSON GPE ( [ ORG ] , no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL and DATE , ORG CARDINALVII ) and GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) ."],"violated_articles":["2","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105318","languageisocode":"ENG","respondent":"EST","branch":"ADMISSIBILITY","date":2011,"docname":"METSAVEER v. ESTONIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was tried by a criminal court , apparently having been charged with theft . On DATE , before the judgment in the criminal case had been delivered , a newspaper , NORP Postimees , published an article entitled \u2018 Gang of Thieves on Trial\u2019 ( Vargaj\u00f5uk kohtu all ) . According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted .","The applicant brought a civil suit against NORP ORG , the public limited company that published the newspaper . He claimed CARDINAL kroons ( EEK ) ( MONEY ( ORG ) ) . On DATE ORG dismissed his claim . An appeal was dismissed by ORG by a judgment of DATE . The applicant received the judgment on DATE . An appeal to ORG could be filed within DATE of the receipt of the judgment , that is , by DATE at the latest .","On DATE ORG received a request from the applicant for an extension of the time - limit for appeal , together with a request for legal aid .","On DATE ORG granted the applicant legal aid for lodging an appeal with ORG . ORG decision was sent to the applicant and to ORG ( ORG ) so that the latter could appoint a lawyer for him . The applicant \u2019s address was given in the decision . It was explained in the decision that it was not possible to extend the time - limit for filing the appeal but it was possible to request the restoration of the time - limit after its expiry if good reason existed for the failure to comply with it .","By a letter of DATE ORG juhatus ) sent ORG decision to the law office of the advocate who had been appointed , NORP , who received the letter on DATE . The applicant was not informed that the advocate had been appointed for him . R. neither contacted the applicant nor filed an appeal with ORG .","According to different documents in the case file , the applicant became aware of the name and contact details of the appointed lawyer , NORP , either at DATE when he telephoned ORG , or on DATE when he telephoned ORG .","On DATE the applicant also telephoned NORP","According to the applicant , NORP said that the time - limit for an appeal to ORG had already passed and she was no longer dealing with the case . The applicant himself should have sought to contact her . She had no time to meet the applicant on DATE .","According to NORP she had been unable to take any steps to lodge an appeal against ORG judgment without having met the applicant . She proposed a meeting for DATE but this was not suitable for the applicant , who said that he had to leave for GPE to start a new job on that date .","On DATE the applicant made a complaint to ORG ( aukohus ) of ORG against NORP","NORP was contacted by ORG on DATE and was advised to file a request with ORG for the restoration of the time - limit for appeal . She filed the request , sent a copy to the applicant and requested the latter to contact her and pay the security for appeal .","On DATE the applicant requested that ORG suspend the proceedings as NORP had filed a request for restoration of the time - limit with ORG .","On DATE ORG sent a letter to NORP noting that according to LAW GPE seadustik ) the appeal itself had to be lodged together with the request for restoration of the time - limit . Moreover , security had to be paid . On that basis ORG returned the application to NORP The applicant was not informed thereof .","It appears that in DATE the applicant , having telephoned the offices of different courts , learned of ORG letter and the fact that the case file had been sent back to the first - instance court as no appeal had been lodged and no security had been paid . On DATE the applicant asked ORG to resume the examination of his complaint against NORP He also requested that a new lawyer be appointed for him .","ORG examined the matter on DATE . It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed . However , such an obligation could not be placed on the lawyer ; nor was a lawyer responsible for paying the security for appeal . ORG found that NORP had not committed a disciplinary offence and decided not to initiate proceedings in respect of her . It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to NORP for legal assistance . It also informed ORG of the circumstances relating to the informing of an applicant about the appointment of a legal - aid lawyer .","According to the applicant he attempted to contact NORP by telephone and by letter ; this having proved unsuccessful , on DATE he requested ORG to appoint another lawyer and to extend the time - limit for lodging an appeal .","On DATE ORG refused the applicant \u2019s requests . It noted that a request for legal aid had already been granted by ORG on DATE , that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections CARDINAL and CARDINAL of section CARDINAL of LAW . ORG further noted that the applicant \u2019s lawyer had requested that the time - limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security . Finally , ORG pointed out that the appeal had not been attached to the applicant \u2019s application and that he had also failed to comply with the requirement under LAW of LAW according to which submissions to ORG could only be made through a lawyer . Accordingly , it returned the application to the applicant .","Section CARDINAL(CARDINAL ) of LAW ( PERSON \u00f5igusabi seadus ) , as in force at the material time , stipulated that if a legal - aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto , or a lawyer named by ORG , as the provider of ORG legal assistance . It was not specified how the claimant was to be informed thereof .","Section CARDINAL of LAW provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests ( section CARDINAL ) of LAW ( Advokatuuriseadus ) ) or if the client \u2019s claims were unlawful or contrary to the lawyer \u2019s professional ethics , or the lawyer became aware that a criminal offence was being planned ( sections CARDINAL ) and CARDINAL ) of FAC ) .","According to section CARDINAL of LAW the legal - aid lawyer could be replaced by another lawyer upon the latter \u2019s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid ( subsection CARDINAL ) . If , arising from law , a lawyer was unable to continue to provide legal services to a beneficiary of ORG legal aid , he or she had to submit to a court an application for the appointment of a new legal - aid lawyer ( subsection CARDINAL ) . Upon the exclusion of such a lawyer from ORG or his or her disbarment , or upon the suspension of the professional activities or the death of the lawyer , a court had to appoint a new lawyer ( subsection CARDINAL ) . Where a lawyer was replaced , the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished ( subsection CARDINAL ) .","Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure ( GPE seadustik ) , as in force until DATE , provided that an appeal against a judgment of an appeal court could be filed within DATE of the judgment being made public , or within DATE of receipt of a copy of the judgment if the judgment was given in written proceedings .","On DATE a new Code of Civil Procedure ( CARDINAL Code ) entered into force . Article CARDINAL \u00a7 CARDINAL of the CARDINAL Code provided that an appeal in cassation was to be submitted within DATE of the date on which the judgment was served on the appellant in cassation .","LAW provided that a party to litigation could perform procedural acts and submit requests and applications to ORG only through a lawyer ( advokaat ) .","Article CARDINAL \u00a7 CARDINAL of the CARDINAL Code provided that when a request was made for the restoration of a time - limit , the procedural act for which the restoration was requested had to be performed at the same time .","LAW provided that a request for restoration of a time - limit could be filed within DATE of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist , but not DATE after the expiry of the time - limit ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99990","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2010,"docname":"VAN ANRAAT v. THE NETHERLANDS","importance":3,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a sentence of imprisonment ( gevangenisstraf ) in FAC , the GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .","CARDINAL","NORP The applicant was a businessman . DATE and DATE he purchased quantities in excess of QUANTITY of the chemical thiodiglycol in GPE and GPE , and , acting through companies based in a variety of countries , he supplied it to ORG . After DATE he was ORG sole supplier of this substance .","Thiodiglycol is a precursor in a chemical reaction at the final stage of formation of CARDINAL . CARDINAL of a group of compounds known as sulphur mustards and better known as mustard gas , ORG has severe vesicant properties . In contact with the skin , it causes severe and potentially lethal chemical burns ; in contact with the eyes , it causes inflammation possibly resulting in blindness ; if inhaled , it blisters mucous membrane and lung tissue and can cause pulmonary oedema . Its known long - term effects on survivors include an increased risk of cancer in later life . Mustard gas , so called because of its smell , was first used as a battlefield weapon during the First World War , at the Third Battle of Ypres ( DATE ) .","Mustard gas is known to have been used by the NORP military , along with other chemical weapons , against NORP armed forces and civilians during the Iran - Iraq War ( DATE ) and in attacks against the NORP population of northern GPE ( DATE ) . CARDINAL such attack , carried out on the town of GPE in DATE , killed CARDINAL of non - combatant civilians and injured CARDINAL more . Among those later considered primarily responsible were PERSON ( known as PERSON ) , President of GPE from DATE until DATE , and PERSON , Secretary General of ORG in northern GPE DATE , nicknamed \u201c Chemical Ali \u201d .","PERSON was charged before the Special Iraqi Tribunal ( later re - named ORG ) with the use of poison gas against NORP civilians in GPE . However , he never stood trial on this charge ; he was hanged on DATE for another crime .","PERSON was tried by ORG on a plurality of charges ; these included the DATE GPE gas attack , in respect of which he was found guilty . He was hanged on DATE .","Charges were brought against the applicant in the GPE which may be summarised as follows :","( CARDINAL ) NORP aiding and abetting genocide committed by named individuals including PERSON and PERSON against the NORP population of northern GPE in a number of places including GPE ;","in the alternative , aiding and abetting violations of the laws and customs of war committed by named individuals including PERSON and PERSON , as regards gas attacks on the NORP population of northern GPE in GPE and elsewhere ; and","( CARDINAL ) NORP aiding and abetting violations of the laws and customs of war committed by named individuals including PERSON and PERSON , as regards gas attacks on the territory of GPE .","The acts constitutive of these crimes were stated to be the supply of various named chemicals , including thiodiglycol , to GPE as well as materials and advice for the manufacture of chemical weapons in violation of international law . The charges referred to several provisions of domestic legislation , including , as relevant to the case before the ORG , section CARDINAL of LAW ( PERSON ) , taken together with LAW ( PERSON ) .","The trial opened before ORG ( rechtbank ) of GPE on DATE . On DATE ORG delivered its judgment . It acquitted the applicant of the first primary charge , aiding and abetting genocide , finding that genocidal intent on his part could not be proved ; but it convicted him on the first alternative charge and the second charge . It sentenced him to DATE in prison and ordered him to pay sums of money in compensation to a number of named individuals who had joined the proceedings as civil parties .","Both the prosecution and the applicant appealed against ORG judgment to ORG ( gerechtshof ) .","NORP In its judgment of CARDINAL DATE , ORG The Hague acquitted the applicant of aiding and abetting genocide as ORG had done . It convicted him , however , of aiding and abetting violations of the laws and customs of war committed by PERSON , PERSON and another person or other persons in a non - international or international conflict as the case might be , as regards gas attacks on the NORP population of northern GPE in GPE and elsewhere ( the first alternative charge ) , and of aiding and abetting violations of the laws and customs of war committed by PERSON , PERSON and another person or other persons in an international conflict , as regards gas attacks on the territory of GPE .","ORG judgment concluded as follows ( translation published by ORG itself ) :","\u201c CARDINAL Conclusion","Based on the above , the following conclusions can be made :","a ) The defendant played an important part by supplying the precursor Thiodiglycol [ or ORG ] to the NORP regime for the production of mustard gas : PERCENT of this substance had been supplied by him in DATE up to and including DATE . If any ORG would also have been supplied from GPE to GPE in DATE , this fact does not impair the qualification of ' important ' regarding defendant 's part in this matter .","b ) When the supplies by others eventually stopped no later than in the course of DATE , the defendant supplied at least QUANTITY of this precursor until DATE .","c ) The first shipment of ORG supplied by the defendant arrived in GPE towards DATE ; in DATE he supplied a total of QUANTITY . Based on the considerations written under item CARDINAL above , the ORG deems it very likely that in the course of DATE ORG supplied by the defendant was also used for the production and finally ended up in ammunition that was used for the attacks as mentioned in the charges .","Conclusive evidence for his co - responsibility regarding the attacks mentioned in the charges ( in so far as mustard gas was deployed in those attacks ) is the following :","d ) As of DATE , the supplementation of the essential precursor ORG to the NORP regime depended completely on the supplies made by the defendant .","e ) For that reason , the unwholesome policy that was continuously carried out by the regime that from DATE onwards seemed to find it necessary to deploy QUANTITY of this poison gas during combat , depended to a decisive extent if not totally on those supplies .","Taking into consideration the crucial significance that the shipments of ORG supplied by the defendant since DATE had for the chemical weapon program of the regime , the ORG finds the defendant ( together with his co - perpetrators ) guilty of being an accessory to providing the opportunity and the means for the proven attacks with mustard gas in DATE .","Liability to punishment on account of the proven charges","The proven charges constitute a punishable offence :","Regarding the proven charges under count CARDINAL . alternatively :","The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war , while that offence resulted in the death or grievous bodily harm of another person or that offence was an expression of a policy of systematic terror or wrongful actions against the whole population or a specific group thereof , committed several times .","Regarding the proven charges under count CARDINAL :","The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war , while that offence resulted in the death or grievous bodily harm of another person , committed several times .","Liability to punishment of the defendant","No circumstance has become plausible that would rule out the punishability of the defendant . Therefore the defendant is liable to punishment .","Considerations regarding the applicable legislation","The [ War Crimes Act ] which was applicable at the time of the period referred to in the charges , was amended several times afterwards ; following the entry into force of LAW ( ... ) on DATE , the war crimes were devolved from the [ War Crimes Act ] to the [ LAW ] . Only the amendments to the law dated DATE ( ... ) and dated DATE ( ... ) are important when determining whether the later legal provisions are more favourable for the defendant than the law that was applicable during the period referred to in the charges .","Pursuant to ORG dated DATE , a new [ section ] DATE was inserted into the [ War Crimes Act ] , which makes it possible to impose an additional sentence provided by LAW , first paragraph , DATE , of LAW ( deprive a person of his \/ her active and passive right to vote ) on account of DATE inter alia DATE a conviction for being found guilty of war crimes , while by ORG dated DATE , the death penalty as possible punishment was removed from the [ War Crimes Act ] .","The [ War Crimes Act ] as it reads as of DATE , after the amendment by ORG of DATE , is more favourable to the defendant in terms of an eventual penalty . From the devolvement of the penal provisions that refer to war crimes from the [ War Crimes Act ] to LAW , as from DATE , it can not be said that they result in more favourable provisions for the defendant . Based on the provisions in DATE , paragraph CARDINAL , of LAW , the [ War Crimes Act ] will have to be the starting point as it read on DATE . Furthermore with regards to complicity , the ORG has taken into consideration article DATE , paragraph CARDINAL , of LAW , as it read until DATE ( the date of entry into force of the LAW regarding reassessment of maximum penalties ) . Pursuant to article DATE ) , DATE , paragraph CARDINAL ( old ) , CARDINAL and CARDINAL of LAW and [ section ] CARDINAL of the [ War Crimes Act ] , as it read on DATE , viewed together and in relation to each other , the ORG can not draw any other conclusion than that in this case the defendant is liable to a maximum term of DATE imprisonment .","FAC for the punishment","During the appeal trial , the advocate general moved that the sentence of the court of first instance be set aside and on account of the principal charge under counts CARDINAL . and CARDINAL . he demanded that the defendant be sentenced to a term of imprisonment of DATE , less the period spent in pre - trial detention .","In making its assessment as to what penalty should be imposed , the ORG has taken into account the following considerations .","During DATE the defendant supplied raw material to the NORP regime for the production of chemical weapons . From DATE until DATE , in a total of CARDINAL shipments he supplied at least QUANTITY of LOC ( ORG ) on the basis of CARDINAL Letters of Credit . That substance was used for the production of mustard gas that was deployed during the war in GPE as well as in GPE . By doing so during DATE , the defendant has consciously made a substantial contribution to the continuing violation of the laws and customs of war committed by the NORP regime . Based on NORP criminal law that was applicable at that time , a person who is found guilty of complicity in a criminal offence which carries a life sentence can be sentenced to a term of imprisonment of a maximum of DATE . Seen the fact that the defendant committed the offence of complicity several times , in his case the penalty to be imposed will be a maximum term of DATE imprisonment , which is based on the regulation set out in article CARDINAL , paragraph CARDINAL , of LAW , concerning various offences for which CARDINAL sentence is pronounced .","In determining the punishment in this case , the ORG has taken into account the following circumstances , that on the one hand relate to the seriousness of the offences , the circumstances in which they were committed , as well as the intended purposes of the punishment to be considered when fixing the punishment , and on the other hand the personal circumstances of the defendant .","As results from the case file ( in the period referred to in the charges ) , the NORP regime carried out multiple attacks with ( among others ) mustard gas during the war with GPE on places in that country , as well as on the border region between GPE and GPE , where NORP population groups lived that were suspected of collaboration with the NORP enemy . Those attacks caused the death of CARDINAL of civilians ( that did not participate in the conflict ) and caused permanent and severe health problems to very many persons . It is beyond doubt that the regime in GPE by doing so committed extensive and extremely gross violations of the international humanitarian law by using a weapon that was already prohibited by LAW of DATE .","The defendant has made an essential contribution to these violations \u2013 at a time that many , if not all other suppliers ' pulled out ' with regard to the increasing international pressure \u2013 by supplying many times in the course of DATE ( among other matters ) very large quantities of a precursor for mustard gas ; in doing so the defendant made significant profits . Those supplies enabled the NORP regime to ( almost ) continue their deadly ( air ) attacks in full force during DATE . Apparently the defendant did not give his deliberate support to the afore mentioned gross violations out of sympathy for the targets of the regime , but DATE as it should be assumed \u2013 the defendant acted exclusively in pursuit of large gains and fully neglected the consequences of his actions . Even DATE the defendant does not show any sense of guilt or any compassion for the numerous victims of the mustard gas attacks .","The ORG recognizes that the proven offences were committed over DATE and that the defendant is a man of advanced age , who is to be expected to spend a large part of DATE of his life in prison . ORG will only be able to attach limited weight to this slightly mitigating circumstance . In this case the most important aspect concerning the determination of the appropriate sanction \u2013 considering the extreme gross violation of the principles of humanitarian law that took place and the important supporting role that was played by the defendant DATE is to point out to the victims and survivors , as well as to the international legal community , how much value is put on the actions of the defendant and what severe punishment can only be the consequence of these actions .","Finally in fixing the appropriate punishment , the ORG has taken into account the general prevention aspect . People or companies that conduct ( international ) trade , for example in weapons or raw materials used for their production , should be warned DATE if they do not exercise increased vigilance \u2013 they can become involved in most serious criminal offences .","It should be made clear to them that they will have to face prosecution and long - term prison sentences , in accordance with the seriousness of the crimes they committed .","Considering all of the above , the ORG concludes that the only suitable and necessary reaction in these circumstances is a non - suspended prison sentence of a very long term as set out below . \u201d","ORG sentenced the applicant to DATE imprisonment ; however , it rejected the claims of the civil parties as unsuitable for summary decision .","The applicant lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) , submitting a statement of points of appeal on DATE . He argued , referring to section CARDINAL(CARDINAL ) of LAW , that the GPE courts lacked jurisdiction since ORG had not convicted him of aiding and abetting crimes committed in \u201c time of war \u201d ( as distinct from non - international or international \u201c conflict \u201d ) ; section CARDINAL ) of that Act could not apply , since the conflict , whether international or not , did not in any way involve the GPE . He also alleged a violation of LAW in that the concept of \u201c laws and customs of war \u201d as used in LAW CARDINAL of LAW was so vague and uncertain in scope that he could not reasonably have been found to have had the criminal intent to be an accessory to their violation . He further claimed that the DATE LAW and the DATE LAW , as considered relevant by ORG , had become a dead letter in the light of the use of weapons of mass destruction , nuclear in particular , and the widespread use of other indiscriminate weapons such as incendiary bombs and napalm ( which he described as \u201c chemical weapons \u201d ) during the Second World War ( DATE ) , the Korean War ( DATE ) and the Vietnam War ( DATE ) . The DATE LAW , moreover , had lost its force , or at the very least could no longer be seen as proof of the existence of customary law given widespread ORG practice to contrary effect .","The Procurator General ( Procureur - Generaal ) at ORG submitted an advisory opinion on DATE . He considered ORG reference to general international law an error which ORG could itself correct ex officio : it was sufficient to refer to the DATE LAW , to the common LAW DATE LAW , and ( in relation to the second charge ) to LAW , all of which had been relied on by ORG as setting out the applicable substantive standards .","The applicant submitted a response to the Procurator General 's opinion on DATE , as permitted by LAW ) . He argued , among other things , that PERSON and PERSON , whose crimes he had supposedly aided and abetted , had at the time been members of the government of a sovereign ORG ( CARDINAL of them its Head of ORG ) and for that reason protected by that ORG 's sovereign immunity . Since the NORP courts had no jurisdiction over them , it followed that they were not entitled to try him as their accessory either .","On DATE the ORG gave judgment dismissing the appeal on points of law . It found that section CARDINAL of LAW conferred universal jurisdiction on NORP courts in respect of the crimes set out in section CARDINAL of that LAW . In response to the applicant 's complaint going to the supposed vagueness of the concept of \u201c laws and customs of war \u201d as used in section CARDINAL of LAW , it held as follows :","\u201c Contrary to the argument made in the point of appeal ( middel ) , section CARDINAL of LAW is not contrary to the ' requirement of specificity ' ( bepaaldheidsgebod ) contained in the statutory and LAW provisions relied upon . In the light , among other things , of the nature of its subject - matter , consisting of the setting of penal sanctions on the severest indictable offences which originate in a common legal consciousness \u2013 whether it be set out in laws and treaties or not \u2013 , the norm formulated in section CARDINAL of LAW makes it clear enough what behaviour will carry a penal sanction and sufficiently enables the suspect to adjust his behaviour accordingly , even though the nature and content of this provision inevitably entail a certain vagueness in the description of the crime ( een zekere vaagheid in de delictsomschrijving ) . \u201d","The relevant provisions of domestic law , in the versions applicable and applied in the applicant 's case , read as follows :","\u201c ...","Within DATE from the transmission of the copy of the advisory opinion ( of the Procurator General ) the accused 's counsel ... may submit his written comments thereon to ORG . \u201d","\u201c The following persons are liable as accessories ( medeplichtigen ) to an indictable offence ( misdrijf ) :","NORP those who intentionally assist in the commission of the indictable offence ;","NORP those who intentionally provide the opportunity , means or information necessary to commit the indictable offence . \u201d","\u201c CARDINAL . In the case of complicity as an accessory , the maximum of the principal penalties ( hoofdstraffen ) prescribed for the indictable offence shall be reduced by CARDINAL .","NORP In the case of an indictable offence carrying a sentence of life imprisonment , a term of imprisonment not exceeding fifteen years shall be imposed .","The additional penalties ( bijkomende straffen ) for complicity as an accessory shall be the same as for the indictable offence itself .","NORP Only those acts that were intentionally facilitated or promoted by the accessory ( die de medeplichtige opzettelijk heeft gemakkelijk gemaakt of bevorderd ) , and the consequences of such acts , shall be taken into consideration in sentencing . \u201d","\u201c CARDINAL . In the case of a concurrence of criminal acts which must be considered as separate and which constitute CARDINAL indictable offence carrying equivalent principal penalties ( gelijksoortige hoofdstraffen ) , a single sentence shall be imposed .","NORP The maximum sentence shall be the total of the maximum penalties prescribed for the acts ; however , in the case of imprisonment and penal detention ( hechtenis ) , the sentence may not exceed the maximum of the most severe penalty by CARDINAL . \u201d","\u201c CARDINAL . The provisions of the present Act shall apply to crimes that are committed in time of war or that are criminal only in time of war , as set out in :","...","CARDINAL NORP sections CARDINAL - CARDINAL of the present Act ; ...","NORP In the case of an armed conflict that can not be described as war and in which the GPE is involved either for the purpose of individual or collective self - defence or to restore international order and security , sections CARDINAL shall apply by analogy and We [ i.e. the ORG ; that is the Monarch together with the responsible Minister ] may determine by order in council ( algemene maatregel van bestuur ) that the other provisions of the present Act shall apply in whole or in part .","The expression ' war ' shall be understood to include civil war . \u201d","\u201c Without prejudice to the relevant provisions of LAW and LAW ( Wetboek van Militair Strafrecht ) , NORP criminal law shall apply to :","CARDINAL anyone who commits the indictable offence set out in [ section ] CARDINAL outside the Realm in LOC ; ...","CARDINAL NORP any GPE national who commits an indictable offence as referred to in CARDINAL outside LOC . \u201d","\u201c CARDINAL . Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding DATE ...","A term of imprisonment not exceeding DATE ... shall be imposed :","CARDINAL if the criminal act is liable to result in someone else 's death or cause them severe bodily injury ;","CARDINAL if the criminal act involves inhuman treatment ;","CARDINAL NORP if the criminal act involves forcing someone else to do something , not to do something or suffer something to happen ;","CARDINAL NORP if the criminal act involves looting .","Life imprisonment or a temporary term of imprisonment not exceeding DATE ... shall be imposed :","CARDINAL if the criminal act results in someone else 's death or causes them severe bodily injury or involves rape ;","CARDINAL if the criminal act involves violence by a plurality of persons acting in concert ( geweldpleging met verenigde krachten ) against CARDINAL or more persons or violence against a dead , sick or injured person ;","CARDINAL NORP if the criminal act involves the destruction , damaging , putting beyond use or hiding , by a plurality of persons acting in concert , of any property belonging to someone else in whole or in part ;","CARDINAL NORP if the criminal act set out CARDINAL of the preceding paragraph is committed by a plurality of persons acting in concert ;","CARDINAL NORP if the criminal act is an expression of a policy of systematic terror or unlawful action ( wederrechtelijk optreden ) against the entire population or a particular group thereof ;","CARDINAL if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party ;","CARDINAL if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party . \u201d","LAW ( Wet internationale misdrijven ) entered into force on DATE , replacing LAW and LAW ( PERSON ) . In relevant part , it provides as follows :","\u201c CARDINAL . Anyone who commits CARDINAL of the following acts , if committed as a part of a widespread or systematic attack directed against a civilian population , in the knowledge that it is part of such attack , shall be found guilty of a crime against humanity and be liable to life imprisonment or to a term not exceeding DATE ... :","a. wilful killing ;","b. extermination ;","c. enslavement ;","d. deportation or forcible transfer of population ;","e. imprisonment or other serious deprivation of physical liberty contrary to fundamental rules of international law ;","PERSON torture ;","g. rape , sexual slavery , enforced prostitution , forced pregnancy , enforced sterilisation , or any other form of sexual violence of comparable seriousness ;","h. persecution of an identifiable group or collectivity on political grounds , because they belong to a particular race or a particular nationality , on ethnic , cultural or religious grounds , on grounds of gender or on other grounds which are universally recognised as impermissible under international law , in connection with an act referred to in this paragraph or any other crime set out in the present Act ;","i. enforced disappearance of persons ;","PERSON apartheid ;","k. other inhumane acts of a comparable nature deliberately causing serious suffering or serious bodily injury or harm to mental or physical health . ... \u201d","\u201c CARDINAL . Anyone who , in an international armed conflict , commits CARDINAL of the serious violations of LAW , namely the following acts if committed against persons protected by the said Conventions :","a. wilful killing ;","b. torture or inhuman treatment , including biological experiments ;","c. wilfully causing great suffering or serious bodily injury or harm to health ;","d. large - scale deliberate and unlawful destruction and appropriation of property in the absence of military necessity ;","e. compelling a prisoner of war or other protected person to serve in the armed forces of a hostile power ;","PERSON deliberately denying a prisoner or war or other protected person the right to a fair trial in accordance with the law ;","g. unlawful deportation and transfer or unlawful confinement ; or","h. taking hostages","shall be liable to life imprisonment or to a term not DATE ...","...","Anyone who , in an international armed conflict , commits CARDINAL of the following acts :","a. deliberately directing attacks against civilian objects , that is to say objects which are not military objectives ;","b. deliberately initiating an attack knowing that such an attack will cause incidental death or injury to civilians or damage to civilian objects or widespread , long - term and serious damage to the natural environment , and that it will clearly be excessive in relation to the concrete and direct overall military advantage anticipated ;","c. attacks or bombing , by whatever means , of towns , villages , dwellings or buildings which are not being defended and are not military targets ;","d. the transfer , directly or indirectly , by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory ;","e. declaring rights and actions of nationals of a hostile party to be abolished , suspended , or inadmissible in a court of law ;","f. compelling of nationals of a hostile party to take part in hostile acts directed against their own country , even if before the beginning of the war they were in the service of the belligerent party ;","g. the use of poisoned weapons ;","h. the use of asphyxiating , poisonous or other gases and other similar liquids , materials or devices ;","i. the use of bullets which easily expand or flatten or widen in the human body , such as bullets with a hard jacket which leaves the core partially exposed or is incised ;","PERSON outrages ( wandaden ) upon personal dignity , in particular humiliating and degrading treatment ;","k. taking advantage of the location of a civilian or other protected person to secure particular points , areas or forces against military operations ;","l. deliberately making use of the starvation of civilians as a method of waging war by denying them objects which are indispensable to their survival , including deliberately impeding the supply of aid goods as provided for in LAW ;","m. deliberately directing attacks against the civilian population as such or individual civilians who are not directly participating in hostilities ;","n. NORP deliberately directing attacks against buildings , materiel , medical units and transport as well as personnel making use in accordance with international law of the emblems of LAW ;","o. NORP deliberately directing attacks against personnel , installations , materiel , units or vehicles involved in humanitarian aid or peace missions in accordance with the Charter of ORG , as long as they are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict ;","p. deliberately directing attacks against buildings dedicated to religion , education , art , science or charitable purposes , historic monuments , hospitals or places where the sick and wounded are collected , such buildings not being military objectives ;","q. pillaging of a town or a place , even if taken in an attack ;","r. conscripting or enlisting into military service in the national armed forces or groups children under DATE or using them for active participation in hostilities ;","s. denying DATE ;","t. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict ,","shall be liable to a term of imprisonment not DATE ...","If an act as set out in ... the fifth paragraph :","a. DATE results in a person \u2019s death or causes them severe bodily injury or involves rape ;","b. involves violence by a plurality of persons acting in concert ( geweldpleging in vereniging ) against CARDINAL or more persons or violence against a dead , sick or injured person ;","c. involves the destruction , damaging , putting beyond use or hiding , by a plurality of persons acting in concert , of any property belonging to a person in whole or in part ;","d. involves a plurality of persons acting in concert forcing someone else to do something , not to do something or suffer something to happen ;","e. involves a plurality of persons acting in concert pillaging a town or a place , even if taken in an attack ;","f. involves the breaking of a promise or the breaking of an agreement entered into as such with the adversary ; or","g. involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party","the person found guilty shall be liable to life imprisonment or to a term not exceeding DATE ... \u201d","Anyone who , in a non - international armed conflict , commits a violation of the common LAW , that is to say the commission against persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed hors de combat by sickness , wounds , detention , or any other cause , of any one of the following acts :","a. violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;","b. taking of hostages ;","c. outrages upon personal dignity , in particular humiliating and degrading treatment ;","d. the passing of sentences and the carrying out of executions without prior judgment pronounced by a lawfully constituted court , affording all the judicial guarantees which are recognised as indispensable by civilised peoples ;","shall be liable to life imprisonment or to a term not DATE ...","Anyone who , in a non - international armed conflict , commits CARDINAL of the following acts :","a. NORP rape , sexual slavery , enforced prostitution , enforced sterilisation , or any other form of sexual violence that can be deemed equally serious as a serious violation of LAW ;","b. forced pregnancy ;","c. subjecting persons who are in the power of an adversary to physical mutilation or medical or scientific experiments , whatever their nature , not justified by medical or dental treatment of the person concerned or his treatment in hospital , nor carried out in his interest , and which result in death or can seriously endanger the health of that person or persons ; or","d. treacherously killing or wounding persons who belong to the hostile nation or army ;","shall be liable to life imprisonment or to a term not DATE ...","Anyone who , in a non - international armed conflict , commits CARDINAL of the following acts :","a. deliberately directing attacks against the civilian population as such or against individual civilians who are not participating directly in hostilities ;","b. deliberately directing attacks against buildings , materiel , medical units and transport , as well as personnel making use in accordance with international law of the emblems of LAW [ i.e. ORG , ORG and LOC ] ;","c. deliberately directing attacks against personnel , installations , materiel , units or vehicles involved in humanitarian assistance or peace missions in accordance with LAW , as long as these are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict ;","d. deliberately directing attacks against buildings dedicated to religion , education , art , science or charitable purposes , historic monuments , hospitals and places where the sick and wounded are collected , such buildings not being military objectives ;","e. pillaging of a town or a place , even if taken in an attack ;","PERSON conscripting or enlisting into military service in the national armed forces or groups children under the age of DATE or using them for active participation in hostilities ;","g. denying quarter ;","h. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict ; or","i. giving orders for the displacement of a civilian population for reasons connected with the conflict , not including reasons connected with the security of the civilians involved or in cases of urgent necessity because of cogent circumstances of the conflict ,","shall be liable to a term of imprisonment not DATE ...","The sixth paragraph of section CARDINAL shall apply by analogy to an act as referred to in the third paragraph . \u201d","NORP In a decision of DATE reported in ORG ( GPE Law Reports ) DATE ( no . CARDINAL ) , ORG held as follows :","\u201c CARDINAL . That it certainly was the ORG 's intention to comply in full with that treaty obligation [ to criminalise all serious breaches of the CARDINAL DATE LAW ] is apparent from , among other things , the parliamentary history of that LAW , in particular from the Explanatory Memorandum ( PERSON ) and the Memorandum in Reply ( PERSON ) pertaining to the PERSON in question , which respectively include the following passages :","' When another power that is a party to the violated Convention does not request the transfer ( overlevering ) of a prisoner of war who is in the hands of the GPE , it should be possible for him to be tried by a NORP court , even though the indictable offence may have been committed abroad , and even if the criminal act has not been committed against a NORP national or harms no NORP interest . '","and","' The provision enacted in section CARDINAL(CARDINAL ) grants the NORP courts jurisdiction to try war crimes , regardless of by whom and where they have been committed , that is to say also in those cases in which the indictable offence has been committed by a non - NORP national outside the GPE in a war to which our country is not a party . It is rightly pointed out in the Provisional Report ( PERSON ) that this provision is to be seen as an application of the so - called principle of universality . '","In view of the finding contained in paragraph CARDINAL above , a reasonable interpretation of the law , in accordance with the legislature 's intention to comply in full with the treaty obligations entered into by the GPE , makes it necessary to understand section CARDINAL of LAW \u2013 despite its , to that extent , opaque wording \u2013 in such a way that the limitations comprised in subsections CARDINAL , CARDINAL and CARDINAL respectively of LAW have no bearing on sections CARDINAL and CARDINAL , and to that extent , not on section CARDINAL ... either . \u201d","Similar rulings have appeared since this decision in other decisions and judgments of NORP courts , including a judgment ( ORG [ National Jurisprudence Number ] PERSON ) given by ORG on DATE , while the present case was pending before it .","The LAW for the Prohibition of the Use in War of Asphyxiating , Poisonous or other Gases , and of Bacteriological Methods of Warfare ( signed at GPE on DATE ) , better known as the DATE LAW , entered into force on DATE . It reads as follows :","\u201c THE UNDERSIGNED PLENIPOTENTIARIES , in the name of their respective Governments :","Whereas the use in war of asphyxiating , poisonous or other gases , and of all analogous liquids , materials or devices , has been justly condemned by the general opinion of the civilised world ; and","Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties ; and","To the end that this prohibition shall be universally accepted as a part of ORG , binding alike the conscience and the practice of nations ;","DECLARE :","That the High Contracting Parties , so far as they are not already Parties to Treaties prohibiting such use , accept this prohibition , agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration .","The High Contracting Parties will exert every effort to induce other GPE to accede to the present LAW . Such accession will be notified to ORG of GPE , and by the latter to all signatory and acceding Powers , and will take effect on the date of the notification by ORG .","The present LAW , of which the LANGUAGE and LANGUAGE texts are both authentic , shall be ratified as soon as possible . It shall bear today 's date .","The ratification of the present Protocol shall be addressed to the Government of GPE , which will at once notify the deposit of such ratification to each of the signatory and acceding Powers .","The instruments of ratification of and accession to the present LAW will remain deposited in the archives of ORG .","The present LAW will come into force for each signatory Power as from the date of deposit of its ratification , and , from that moment , each Power will be bound as regards other PERSON which have already deposited their ratifications . \u201d","Among the earliest ORG to agree to be bound by this LAW were GPE , which acceded to it ( as ORG ) on DATE ; GPE , which acceded to it ( as GPE ) on DATE ; and GPE , which ratified it on DATE . All CARDINAL are still parties .","Other States have followed suit throughout DATE and more recently still . Among them are GPE ( which ratified the LAW in DATE ) , GPE ( which acceded to it in DATE ) and ORG and GPE ( which acceded to it on DATE , CARDINAL DATE ) . The most recent are GPE ( DATE ) , GPE and GPE ( both DATE ) , GPE ( DATE ) and GPE ( DATE ) . To date , CARDINAL have ratified or acceded or declared succession to LAW .","GPE and GPE were among those GPE which , in ratifying or acceding to the LAW , entered a reservation making its binding force in war conditional on reciprocal application by the enemy . GPE withdrew its reservation on DATE . Other ORG which entered similar reservations to the LAW but have since withdrawn them are GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE , binding its successor GPE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , and GPE ( DATE ) .","The Charter of ORG ( better known as the \u201c GPE Tribunal \u201d ) was annexed to the Agreement for the prosecution and punishment of the major war criminals of ORG ( \u201c GPE \u201d ) of DATE . In the relevant part , it reads as follows :","\u201c ...","The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :","a. ORG against peace : namely , planning , preparation , initiation or waging of a war of aggression , or a war in violation of international treaties , agreements or assurances , or participation in a common plan or conspiracy for the accomplishment of any of the foregoing ;","b. War crimes : namely , violations of the laws or customs of war . Such violations shall include , but not be limited to , murder , ill - treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war or persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns or villages , or devastation not justified by military necessity ;","c. Crimes against humanity : namely , murder , extermination , enslavement , deportation , and other inhumane acts committed against any civilian population , before or during the war , or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the ORG , whether or not in violation of the domestic law of the country where perpetrated .","Leaders , organizers , instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan . \u201d","In its ORG CARDINAL ( II ) , paragraph ( a ) , ORG of ORG directed ORG to \u201c formulate the principles of international law recognized in GPE and in the judgment of the Tribunal \u201d . ORG adopted a text at its second session ( Yearbook of the International Law Commission , DATE , PERSON . II , pp . CARDINAL - CARDINAL ) .","The Principles identified by ORG ( \u201c GPE Principles \u201d ) are the following :","Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment .","The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law .","The fact that a person who committed an act which constitutes a crime under international law acted as Head of ORG or responsible Government official does not relieve him from responsibility under international law .","The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law , provided a moral choice was in fact possible to him .","Any person charged with a crime under international law has the right to a fair trial on the facts and law .","The crimes hereinafter set out are punishable as crimes under international law :","( a ) Crimes against peace :","( i ) Planning , preparation , initiation or waging of a war of aggression or a war in violation of international treaties , agreements or assurances ;","( ii ) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under ( i ) .","( b ) War crimes :","Violations of the laws or customs of war include , but are not limited to , murder , ill - treatment or deportation to slave - labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war , of persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns , or villages , or devastation not justified by military necessity .","( c ) Crimes against humanity :","Murder , extermination , enslavement , deportation and other inhuman acts done against any civilian population , or persecutions on political , racial or religious grounds , when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime .","Complicity in the commission of a crime against peace , a war crime , or a crime against humanity as set forth in ORG is a crime under international law . \u201d","GPE ratified the DATE LAW ( I ) for the Amelioration of the Condition of the Wounded and Sick in ORG in the Field ; Convention ( II ) for the Amelioration of the Condition of Wounded , Sick and Shipwrecked Members of ORG ) relative to the Treatment of Prisoners of War ; and Convention ( IV ) relative to ORG in Time of War ) on DATE . GPE did so ( as GPE ) on DATE . Neither ORG has entered any reservation .","Article CARDINAL common to all four DATE LAW reads as follows :","\u201c In the case of armed conflict not of an international character occurring in the territory of CARDINAL of the High Contracting Parties , each ORG to the conflict shall be bound to apply , as a minimum , the following provisions :","( CARDINAL ) Persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness , wounds , detention , or any other cause , shall in all circumstances be treated humanely , without any adverse distinction founded on race , colour , religion or faith , sex , birth or wealth , or any other similar criteria .","To this end , the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above - mentioned persons :","( a ) violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;","( b ) taking of hostages ;","( c ) NORP outrages upon personal dignity , in particular humiliating and degrading treatment ;","( d ) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court , affording all the judicial guarantees which are recognized as indispensable by civilized peoples .","( CARDINAL ) The wounded and sick shall be collected and cared for .","An impartial humanitarian body , such as ORG , may offer its services to the Parties to the conflict .","The Parties to the conflict should further endeavour to bring into force , by means of special agreements , all or part of the other provisions of the present Convention .","The application of the preceding provisions shall not affect the legal status of the Parties to the conflict . \u201d","In the relevant part , Convention ( IV ) relative to ORG in Time of War additionally provides as follows :","\u201c The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing , or ordering to be committed , any of the grave breaches of the present Convention defined in the following Article .","Each High Contracting Party shall be under the obligation to search for persons alleged to have committed , or to have ordered to be committed , such grave breaches , and shall bring such persons , regardless of their nationality , before its own courts . It may also , if it prefers , and in accordance with the provisions of its own legislation , hand such persons over for trial to another High Contracting Party concerned , provided such High Contracting ORG has made out a ' prima facie ' case .","Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article .","In all circumstances , the accused persons shall benefit by safeguards of proper trial and defence , which shall not be less favourable than those provided by LAW and those following of LAW relative to LAW DATE . \u201d","\u201c Grave breaches to which the preceding Article relates shall be those involving any of the following acts , if committed against persons or property protected by the present Convention : wilful killing , torture or inhuman treatment , including biological experiments , wilfully causing great suffering or serious injury to body or health , unlawful deportation or transfer or unlawful confinement of a protected person , compelling a protected person to serve in the forces of a hostile Power , or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention , taking of hostages and extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly . \u201d","Over CARDINAL States had ratified or acceded or declared succession to the DATE LAW by DATE . GPE and GPE , both among the original signatories , did so in DATE and DATE respectively ; GPE did so in DATE . The DATE LAW now bind every State in the world .","The LAW on LAW was opened for signature on DATE and it entered into force on DATE . Among other things , it binds GPE Parties not already in possession of nuclear weapons not to seek possession of , or control over , nuclear weapons or nuclear explosive devices and to submit to verification measures .","In the LOC cases ( Judgment , ORG DATE , p. CARDINAL ) ORG held as follows :","\u201c DATE . In so far as this contention is based on the view that LAW [ the DATE LAW on the continental shelf ] has had the influence , and has produced the effect , described , it clearly involves treating that Article as a norm - creating provision which has constituted the foundation of , or has generated a rule which , while only conventional or contractual in origin , has since passed into the general corpus of international law , and is now accepted as such by the opinio juris , so as to have become binding even for countries which have never , and do not , become parties to the LAW . There is no doubt that this process is a perfectly possible one and does from time to time occur : it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed . At the same time this result is not lightly to be regarded as having been attained .","It would in the first place be necessary that the provision concerned should , at all events potentially , be of a fundamentally norm - creating character such as could be regarded as forming the basis of a general rule of law . ...","The essential point in this connection \u2013 and it seems necessary to stress it \u2013 is that even if these instances of action by non - parties to the ORG were much more numerous than they in fact are , they would not , even in the aggregate , suffice in themselves to constitute the opinio juris ; DATE for , in order to achieve this result , CARDINAL conditions must be fulfilled . Not only must the acts concerned amount to a settled practice , but they must also be such , or be carried out in such a way , as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it . The need for such a belief , i.e .. , the existence of a subjective element , is implicit in the very notion of the opinio juris sive necessitatis . The GPE concerned must therefore feel that they are conforming to what amounts to a legal obligation . The frequency , or even habituaCARDINAL character of the acts is not in itself enough . There are many international acts , e.g. , in the field of ceremonial and protocol , which are performed almost invariably , but which are motivated only by considerations of courtesy , convenience or tradition , and not by any sense of legal duty .","DATE . In this respect the ORG follows the view adopted by ORG in the ORG case , as stated in the following passage , the principle of which is , by analogy , applicable almost word for word , mutatis mutandis , to the present case ( P.C.I.J. , Series A , No . DATE , at p. CARDINAL ) :","' Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ... , it would merely show that GPE had often , in practice , abstained from instituting criminal proceedings , and not that they recognized themselves as being obliged to do so ; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom . The alleged fact does not allow one to infer that GPE have been conscious of having such a duty ; on the other hand , there are other circumstances calculated to show that the contrary is true . ' \u201d","In the Military and Paramilitary Activities in and against GPE ( GPE v. GPE ) case ( Merits , Judgment , I.C.J. Reports DATE , p. CARDINAL ) it held as follows :","\u201c CARDINAL . It is not to be expected that in the practice of GPE the application of the rules in question should have been perfect , in the sense that GPE should have refrained , with complete consistency , from the use of force or from intervention in each other 's internaCARDINAL affairs . The ORG does not consider that , for a rule to be established as customary , the corresponding practice must be in absolutely rigorous conformity with the rule . In order to deduce the existence of customary rules , the ORG deems it sufficient that the conduct of GPE should , in general , be consistent with such rules , and that instances of ORG conduct inconsistent with a given rule should generally have been treated as breaches of that rule , not as indications of the recognition of a new rule . If a ORG acts in a way prima facie incompatible with a recognized rule , but defends its conduct by appealing to exceptions or justifications contained within the rule itself , then whether or not the ORG 's conduct is in fact justifiable on that basis , the significance of that attitude is to confirm rather than to weaken the rule . \u201d","The Convention on the Prohibition of the Development , Production and Stockpiling of Bacteriological ( Biological ) and PERSON and on Their Destruction ( \u201c LAW \u201d ) was opened for signature simultaneously in GPE , GPE and GPE on DATE . By DATE it had been signed by MONEY .","LAW entered into force on DATE , after the deposit of the CARDINAL instrument of ratification . It had been ratified by CARDINAL recognised GPE and CARDINAL non - recognised ORG by DATE . A further CARDINAL ratified or acceded to it , or declared succession to it upon gaining independence , from DATE until DATE ( among them GPE , which ratified it on DATE ) . It currently has CARDINAL States Parties ( including all member ORG ) and CARDINAL signatories . GPE ratified it on DATE .","In the relevant part , it reads as follows :","\u201c The States Parties to this Convention ,","Determined to act with a view to achieving effective progress towards general and complete disarmament , including the prohibition and elimination of all types of weapons of mass destruction , and convinced that the prohibition of the development , production and stockpiling of chemical and bacteriological ( biological ) weapons and their elimination , through effective measures , will facilitate the achievement of general and complete disarmament under strict and effective international control ,","Recognizing the important significance of LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and conscious also of the contribution which the said LAW has already made , and continues to make , to mitigating the horrors of war ,","Reaffirming their adherence to the principles and objectives of that LAW and calling upon all GPE to comply strictly with them ,","Recalling that ORG of ORG has repeatedly condemned all actions contrary to the principles and objectives of LAW of DATE ,","Desiring to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere ,","Desiring also to contribute to the realization of the purposes and principles of ORG ,","Convinced of the importance and urgency of eliminating from the arsenals of GPE , through effective measures , such dangerous weapons of mass destruction as those using chemical or bacteriological ( biological ) agents ,","Recognizing that an agreement on the prohibition of bacteriological ( biological ) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development , production and stockpiling of chemical weapons , and determined to continue negotiations to that end ,","Determined for the sake of all mankind , to exclude completely the possibility of bacteriological ( biological ) agents and toxins being used as weapons ,","Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk ,","Have agreed as follows :","...","Article VIII","Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any ORG under LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE .","Article IX","ORG to this Convention affirms the recognized objective of effective prohibition of chemical weapons and , to this end , undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development , production and stockpiling and for their destruction , and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes . ... \u201d","By the time of the Iran - Iraq War , a number of States had officially instructed their armed forces to refrain from the use of chemical weapons . These included GPE , whose Military Manual ( DATE ) provided that \u201c asphyxiating , poisonous or other gases , and all analogous liquids , materials or devices [ were ] forbidden \u201d , and GPE , whose LAW ( DATE ) proscribed the first use of asphyxiating , toxic or similar gases . GPE , in its ORG CARDINAL , LAW ( DATE , revised DATE ) , forbade its land forces the first use of \u201c lethal and incapacitating chemical agents \u201d , referring to the DATE LAW and the NORP reservation of no first use .","The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which DATE be Deemed to be Excessively Injurious or to Have Indiscriminate Effects was opened for signature on DATE and it entered into force on DATE . It comprises CARDINAL Protocols . CARDINAL of them ( LAW or Restrictions on the Use of Incendiary Weapons ) prohibits the use of incendiary weapons against civilian targets and of air - delivered incendiary weapons against military objectives located within a concentration of civilians in all circumstances , and of non - air - delivered incendiary weapons against military objectives located within a concentration of civilians unless the civilians are spared ( LAW .","DATE during the war between GPE and GPE , that is , DATE , ORG of ORG adopted resolutions on chemical and bacteriological weapons ( nos . CARDINAL\/CARDINAL , DATE ; CARDINAL , DATE ; CARDINAL , CARDINAL DATE ; ORG , DATE ; CARDINAL\/CARDINAL , CARDINAL DATE ; CARDINAL , DATE ; CARDINAL , DATE ; CARDINAL , CARDINAL DATE ; and CARDINAL , DATE ) . In each of them ORG reaffirmed \u201c the necessity of strict observance of the principles and objectives \u201d by all States of the DATE LAW and of adherence by all States to LAW .","In Resolution no . CARDINAL\/CARDINALC of DATE ORG expressed the belief","\u201c ... that the continued authority of the LAW and relevant rules of customary international law [ required ] that full and proper attention be given to all reports regarding the alleged use of chemical weapons and to their harmful effects , both immediate and long - term , to humans and to the environment of the victim countries \u201d .","In Resolution no . CARDINAL on Provisional Procedures to ORG of the DATE LAW of DATE ORG requested the Secretary - General of ORG","\u201c ... to devise procedures for the timely and efficient investigation of information concerning activities that [ might ] constitute a violation of LAW or of the relevant rules of customary international law and to assemble and organize systematically documentation relating to the identification of signs and symptoms associated with the use of such agents as a means of facilitating such investigations and the medical treatment that [ might ] be required \u201d","with the assistance of qualified experts . Elsewhere ( in ORG no . CARDINAL on ORG and ORG ) ORG recalled","\u201c ... that the use of chemical and biological weapons [ had ] been declared incompatible with the accepted norms of civilization \u201d .","NORP The Secretary General published his report on DATE ( ORG . PERSON ) . To it was annexed a report of a ORG , transmitted to the Secretary General on DATE , which set out procedures for investigating allegations of the use of chemical or biological weapons . ORG - annexed to the report of ORG was a list ( ORG ) of potential chemical and biological warfare agents ; \u201c sulphur mustard \u201d was CARDINAL of those mentioned . ORG took note of the Secretary General 's report in its Resolution CARDINAL\/CARDINALE of DATE .","In CARDINAL of DATE , ORG recalled","\u201c ... the provisions of LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and other relevant rules of customary international law \u201d .","DATE , in Resolution CARDINAL\/CARDINALA , it expressed","\u201c ... deep dismay at the use of chemical weapons in violation of LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and other relevant rules of customary international law \u201d .","On DATE the President of ORG delivered the following statement :","\u201c On behalf of the members of ORG , I am authorized to make the following declaration :","ORG ,","Having considered again the question entitled ' The situation between GPE and GPE ' ,","Greatly concerned about the conflict between GPE and GPE , which endangers international peace and security in the region ;","Taking note of the report of the specialists appointed by the Secretary General to investigate allegations by ORG concerning the use of chemical weapons ( S\/CARDINAL ) ,","Taking note with particular concern of the unanimous conclusions of the specialists that chemical weapons have been used ,","Expressing its grave concern about all reported violations in the conflict of the rules of international law and of the principles and rules of international conduct accepted by the world community to prevent or alleviate the human suffering of warfare ,","Strongly affirming the conclusion of the Secretary - General that these humanitarian concerns can only be fully satisfied by putting an end to the tragic conflict that continues to deplete the precious human resources of GPE and GPE ,","Strongly condemns the use of chemical weapons reported by the finding of the mission of specialists ;","Reaffirms the need to strictly abide by LAW of DATE for the Prohibition of the use in war of asphyxiating , poisonous or other gases , and of bacteriological methods of warfare ;","Calls on the GPE concerned immediately and unconditionally to reaffirm the obligations flowing from their accession to LAW of DATE ;","Condemns all violations of international humanitarian law and urges both parties to observe carefully the generally recognized principles and rules of international humanitarian law which are applicable to armed conflicts and their obligations under international conventions designed to prevent or alleviate the human suffering of warfare ;","Recalls its relevant resolutions , renews urgently its appeal for the strict observance of a cease - fire and for a peaceful solution of the conflict , and calls upon all governments concerned to cooperate fully with ORG in its efforts to bring about conditions leading to a peaceful settlement of the conflict in conformity with the principles of justice and international law ;","ORG the mediation efforts of the Secretary - General and requests him to continue his efforts with the parties concerned with a view to achieving a comprehensive , just and honourable settlement acceptable for both sides ;","PERSON to keep the situation between GPE and GPE under close review . \u201d","On DATE , the ORG unanimously adopted LAW ( DATE ) , of which the relevant part reads as follows :","\u201c ORG ,","Having considered the question entitled ' The situation between GPE and GPE ' ,","Recalling that ORG has been seized with the question between GPE and GPE for DATE and that decisions have been taken thereon ,","...","Noting that both GPE and GPE are parties to the LAW for the Prohibition of the Use in War of Asphyxiating , Poisonous or Other Gases , and of Bacteriological Methods of Warfare signed at GPE on DATE ,","...","Also deplores the escalation of the conflict , especially territorial incursions , the bombing of purely civilian population centres , attacks on neutral shipping or civilian aircraft , the violation of international humanitarian law and other laws of armed conflict and , in particular , the use of chemical weapons contrary to obligations under the DATE LAW ; ... \u201d","DATE . On DATE , the ORG unanimously adopted its LAW ( DATE ) , which reads as follows :","\u201c ORG ,","Having considered the report of DATE of the mission dispatched by the Secretary - General to investigate allegations of the use of chemical weapons in the conflict between GPE and GPE ,","Dismayed by the mission 's conclusions that chemical weapons continue to be used in the conflict and that their use has been on an even more intensive scale than before ,","Affirms the urgent necessity of strict observance of the LAW for the Prohibition of the Use in War of Asphyxiating , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE ,","Condemns vigorously the continued use of chemical weapons in the conflict between GPE and GPE contrary to the obligations under LAW ;","Expects both sides to refrain from the future use of chemical weapons in accordance with their obligations under LAW ;","Calls upon all GPE to continue to apply or to establish strict control of the export to the parties to the conflict of chemical products serving for the production of chemical weapons ;","Decides to remain seized of the matter and expresses its determination to review the implementation of the present resolution . \u201d","On DATE , the ORG unanimously adopted its LAW ( DATE ) , of which the relevant part reads as follows :","\u201c ORG ,","Recalling its resolution CARDINAL ( DATE ) of CARDINAL DATE ,","Having considered the reports of CARDINAL and DATE and of CARDINAL and CARDINAL DATE of the missions dispatched by the Secretary - General to investigate allegations of the use of chemical weapons in the conflict between GPE and GPE ,","Deeply dismayed by the missions ' conclusions that there had been continued use of chemical weapons in the conflict between GPE and GPE and that such use against NORP had become more intense and frequent ,","Profoundly concerned by the danger of possible use of chemical weapons in the future ,","Bearing in mind the current negotiations in the Conference on Disarmament on the complete and effective prohibition of the development , production and stockpiling of chemical weapons and on their destruction ,","Determined to intensify its efforts to end all use of chemical weapons in violation of international obligations now and in the future ,","Condemns resolutely the use of chemical weapons in the conflict between GPE and GPE in violation of obligations under LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and in defiance of its resolution CARDINAL ( DATE ) ;","ORG the Secretary - General to carry out promptly investigations in response to allegations brought to his attention by any Member State concerning the possible use of chemical and bacteriological ( biological ) weapons that may constitute a violation of the DATE LAW or other relevant rules of customary international law , in order to ascertain the facts of the matter , and to report the results ;","Calls upon all GPE to continue to apply , to establish or to strengthen strict control of the export of chemical products serving for the production of chemical weapons , in particular to parties to a conflict , when it is established that they have used chemical weapons in violation of international obligations ;","Decides to consider immediately , taking into account the investigations of the Secretary - General , appropriate and effective measures in accordance with LAW , should there be any future use of chemical weapons in violation of international law , wherever and by whomever committed . \u201d","Proposals for a treaty intended to supplement the DATE LAW protocol by prohibiting the development , production or possession of chemical weapons in addition to their use were placed on the agenda of ORG in DATE . In DATE , ORG the year before ) set up an ad hoc working group charged with identifying the issues to be dealt with in a multilateral treaty to be prepared for that purpose . Drafting began in earnest in DATE , after the Secretary - General of ORG announced that ORG had been used by GPE in its war against GPE . Beginning in DATE , the global chemical industry actively participated in the negotiations . LAW and on their Destruction ( or LAW ) was opened for signature in GPE on DATE . CARDINAL signed it within DATE . It entered into force on DATE , DATE after the date of the deposit of the CARDINALth instrument of ratification . It currently binds GPE .","In Article I \u00a7 CARDINAL of LAW Parties undertake","\u201c ... never under any circumstances :","( a ) To develop , produce , otherwise acquire , stockpile or retain chemical weapons , or transfer , directly or indirectly , chemical weapons to anyone ;","( b ) To use chemical weapons ;","( c ) To engage in any military preparations to use chemical weapons ;","( d ) To assist , encourage or induce , in any way , anyone to engage in any activity prohibited to a ORG under this Convention . \u201d","Article VII \u00a7 CARDINAL obliges GPE Parties to enact criminal legislation making activities prohibited to ORG under this treaty punishable by law . This includes extending penal legislation to cover the commission of such acts by natural persons possessing that ORG 's nationality .","Appended to LAW is an \u201c Annex on Chemicals \u201d comprising CARDINAL schedules :","Schedule CARDINAL includes toxic chemicals or precursors that are chemical weapons themselves , or may be used as chemical weapons or for the manufacture of such weapons , and have \u201c little or no use for purposes not prohibited under this Convention \u201d .","Schedule CARDINAL includes chemicals that possess lethal or incapacitating toxicity as well as other properties that could enable them to be used as chemical weapons or that may be used in the manufacture of such weapons , and are \u201c not produced in large commercial quantities for purposes not prohibited under this Convention \u201d .","Schedule CARDINAL includes chemicals that have been produced , stockpiled or used as chemical weapons , or might be used as chemical weapons , or are important for the production of Schedule CARDINAL or Schedule CARDINAL chemicals , and \u201c may be produced in large commercial quantities for purposes not prohibited under this Convention \u201d .","Separate verification regimes apply to chemicals according to the Schedule in which they are listed , details of which are laid down in FAC appended to LAW .","Thiodiglycol , which has industrial uses ( including as a solvent in the manufacture of some types of printing and ballpoint pen inks ) , is listed in Schedule CARDINAL .","Article PERSON establishes the Organization for the Prohibition of Chemical Weapons ( ORG ) to achieve the object and purpose of LAW , to ensure the implementation of its provisions , including those concerning international verification of compliance with it , and to provide a forum for consultation and co - operation among GPE Parties . The ORG is based in GPE , GPE .","In its decision of DATE on the defence motion for interlocutory appeal on jurisdiction in Prosecutor v. PERSON ( Case No . IT-CARDINAL - CARDINAL ) , ORG of ORG for the Former GPE held as follows ( original emphasis ) :","\u201c CARDINAL . So far we have pointed to the formation of general rules or principles designed to protect civilians or civilian objects from the hostilities or , more generally , to protect those who do not ( or no longer ) take active part in hostilities . We shall now briefly show how the gradual extension to internal armed conflict of rules and principles concerning international wars has also occurred as regards means and methods of warfare . As ORG has pointed out above ... , a general principle has evolved limiting the right of the parties to conflicts ' to adopt means of injuring the enemy . ' The same holds true for a more general principle , laid down in the so - called Turku Declaration of Minimum Humanitarian Standards of DATE , and revised in DATE , namely LAW , paragraph CARDINAL , whereby ' [ w]eapons or other material or methods prohibited in international armed conflicts must not be employed in any circumstances . ' ( Declaration of Minimum Humanitarian Standards , reprinted in , Report of ORG on its MONEY , PERSON . , Provisional Agenda Item CARDINAL , at CARDINAL , PERSON . E \/ CN.CARDINAL\/CARDINAL\/CARDINAL ( DATE ) . ) ...","Indeed , elementary considerations of humanity and common sense make it preposterous that the use by GPE of weapons prohibited in armed conflicts between themselves be allowed when GPE try to put down rebellion by their own nationals on their own territory . What is inhumane , and consequently proscribed , in international wars , can not but be inhumane and inadmissible in civil strife .","This fundamental concept has brought about the gradual formation of general rules concerning specific weapons , rules which extend to civil strife the sweeping prohibitions relating to international armed conflicts . By way of illustration , we will mention chemical weapons . Recently a number of ORG have stated that the use of chemical weapons by the central authorities of a ORG against its own population is contrary to international law . On DATE the [ then ] CARDINAL Member States of ORG made a declaration whereby :","' The CARDINAL are greatly concerned at reports of the alleged use of chemical weapons against the NORP [ by the NORP authorities ] . They confirm their previous positions , condemning any use of these weapons . They call for respect of international humanitarian law , including LAW of DATE , and Resolutions CARDINAL and CARDINAL of ORG [ concerning the use of chemical weapons in the Iraq - Iran war ] . ' ( CARDINAL NORP Political Cooperation Documentation Bulletin , ( DATE ) at CARDINAL . )","This statement was reiterated by the NORP representative , on behalf of the CARDINAL , on many occasions . ( See PERSON , ORG . , CARDINALrd Sess . , CARDINALth Mtg . , at CARDINAL , ORG . A \/ C.CARDINAL\/CARDINAL\/PV.CARDINAL ( CARDINAL of DATE in ORG ) ; PERSON , ORG . , CARDINALrd Sess . , ORG . , at CARDINAL , ORG . ORG ( statement of CARDINAL DATE in meeting of ORG to the effect inter alia that ' The CARDINAL [ . . . ] call for respect for LAW of DATE and other relevant rules of customary international law ' ) ; PERSON , ORG . , CARDINALrd Sess . , ORG . , at CARDINAL , ORG . A \/ C.CARDINAL\/CARDINAL\/SR.CARDINAL ( summary of statement of CARDINAL DATE in ORG ) ; see also Report on ORG [ EPC Aspects ] , CARDINAL NORP Political Cooperation Documentation Bulletin ( DATE ) , CARDINAL , at CARDINAL ; Question No CARDINAL\/CARDINAL by Mr. PERSON ( S - E ) Concerning the Poisoning of Opposition Members in GPE , CARDINAL NORP Political Cooperation Documentation Bulletin ( DATE ) , CARDINAL ( statement of the Presidency in response to a question of a member of ORG ) . )","...","It is interesting to note that , reportedly , ORG flatly denied the poison gas charges . ' ( ORG , DATE , at A CARDINAL . ) Furthermore , it agreed to respect and abide by the relevant international norms on chemical weapons . ... It should also be stressed that a number of countries ... strongly disagreed with GPE assertions that GPE had used chemical weapons against its NORP nationals . However , this disagreement did not turn on the legality of the use of chemical weapons ; rather , those countries accused GPE of ' conducting a smear media campaign against GPE . ' ( ORG , DATE , at A CARDINAL ; ORG , DATE , at A CARDINAL . )","It is therefore clear that , whether or not GPE really used chemical weapons against its own NORP nationals - a matter on which this ORG obviously can not and does not express any opinion - there undisputedly emerged a general consensus in the international community on the principle that the use of those weapons is also prohibited in internal armed conflicts . \u201d","Article CARDINAL of the Statute of the Special Iraqi Tribunal provides as follows :","\u201c The ORG shall have jurisdiction over any NORP national or resident of GPE accused of the crimes listed in LAW , committed since DATE and up and until DATE , in the territory of GPE or elsewhere , namely :","a ) The crime of genocide ;","b ) ORG against humanity ;","c ) War crimes ; or","d ) Violations of certain NORP laws listed ... below . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22887","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2002,"docname":"PASKA v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by PERSON , their Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant lodged an action for restitution of property , for compensation and for the protection of his good name and reputation with GPE ORG .","The action was lost and the applicant submitted , at ORG request , a new action on DATE . He claimed restitution of his property and damages from an individual . The applicant alleged , in particular , that prior to his emigration from GPE in DATE , he had deposited his belongings and also documents containing his intellectual property to the defendant , and that the latter refused to restore that property to him .","On DATE the judge heard the applicant . Hearings were scheduled for DATE , CARDINAL DATE and DATE . They were adjourned on each occasion as the court considered it necessary to clarify the position in the case and to take further evidence .","On DATE ORG dismissed the applicant \u2019s request for exclusion of ORG judge .","On DATE ORG allowed another person to join the proceedings as plaintiff and granted the applicant \u2019s request for exemption from the obligation to pay court fees .","On DATE ORG dismissed the defendant \u2019s request for exclusion of GPE ORG judge dealing with the case .","A hearing before GPE ORG was held on CARDINAL DATE . Subsequently the case was assigned to another judge .","A hearing before GPE ORG was scheduled for CARDINAL January DATE . On DATE the applicant challenged all judges of the court and requested that the hearing be adjourned . On DATE ORG submitted the request for exclusion of its judges to ORG . The latter dismissed the request on DATE .","On DATE ORG dismissed the GPE request for exclusion of ORG judges .","On DATE ORG adjourned the case as the applicant had challenged the judges of that court . On DATE ORG returned the file to ORG as the applicant \u2019s request contained no relevant new information .","On DATE the Bratislava III ORG adjourned the case as the plaintiffs had challenged the judges of both GPE ORG and of ORG .","The proceedings are pending .","On DATE the applicant lodged an action for protection of his good name and reputation and for damages against an individual and against ORG .","On DATE the applicant submitted further information to GPE ORG which the latter found to be incomprehensible , as in the case of his first submission of CARDINAL DATE .","Hearings scheduled for DATE and DATE had to be adjourned as both the applicant and the defendant failed to appear . On CARDINAL and DATE ORG adjourned the case .","On DATE the Bratislava III ORG dismissed the action . The applicant appealed .","On DATE ORG quashed the judgment and sent the case back to ORG . The decision stated that ORG should invite the applicant to specify his claims and decide on the case in the light of the information thus obtained .","On DATE the applicant challenged the ORG judge . His request was dismissed by the appellate court on DATE . In the meantime , on DATE , the applicant completed his original action .","On DATE the first instance court submitted the case file to ORG for a decision on the applicant \u2019s request for exclusion of the judge dealing with the case . On DATE ORG sent the case back to the first instance court without taking a decision . It pointed out that the applicant \u2019s submissions did not contain any new facts .","On DATE the president of GPE ORG informed the applicant that the case would be proceeded with after problems arising from the shortage of judges had been resolved .","On DATE the president of GPE ORG assigned the case to himself .","Subsequently the case was assigned to another judge .","On DATE ORG decided that GPE ORG judges were not excluded .","By a decision delivered on DATE the Bratislava III ORG discontinued the proceedings . The court noted that the applicant \u2019s action concerned the protection of his personality rights . The decision further stated that the first defendant had died in DATE and that the second defendant , the Bratislava II ORG , was not a legal person and that it therefore lacked standing in the proceedings .","The applicant filed an appeal . The proceedings are pending .","On DATE the applicant lodged a petition , pursuant to LAW , alleging a violation of his right to a hearing without undue delays in the above CARDINAL sets of proceedings before GPE ORG . On DATE ORG declared the petition admissible .","On DATE and on DATE ORG invited the applicant to appoint a lawyer to represent him in the proceedings as required by LAW .","On DATE the applicant requested ORG to assign a lawyer to represent him before the Constitutional Court free of charge . He explained that several lawyers had refused to do so . The applicant informed ORG about the difficulties in finding a representative and requested an extension of the time - limit set for appointing a lawyer .","On DATE ORG discontinued the proceedings on the ground that the applicant was not represented by a lawyer .","On DATE the president of ORG asked the applicant to submit a copy of his constitutional petition with a view to examining the request of DATE .","LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .","Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon the petition ( \u201c podnet \u201d ) presented by any individual or a corporation claiming that their rights have been violated .","As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :","\u201c CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .","When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person \u2019s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .","In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . \u201d ...","The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL\/CARDINAL ( LAW ) , as amended with effect from DATE .","Pursuant to LAW ) of LAW , a person who wishes to bring proceedings before the Constitutional Court shall submit the authority of a lawyer representing him or her in the proceedings .","After DATE the ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .","According to an explanatory letter by the president of ORG of DATE , nothing prevents ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed .","In its decision no . I. \u00daS CARDINAL of DATE ORG pointed out that it has been its practice to examine thoroughly all requests for a lawyer to be appointed , at ORG cost , to represent persons in proceedings before it . The decision further states that ORG has regularly granted such requests when they are justified by the material and personal situation of the person concerned provided that the other statutory requirements for declaring the case admissible are met .","Subsequently the above position has been confirmed in a number of cases . In deciding on requests for a lawyer to be appointed at the cost of ORG has regard to the relevant provisions of LAW governing the exemption of a party from the obligation to pay court fees and the appointment of a legal representative for such a person ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84475","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2008,"docname":"CASE OF ABBASOV v. AZERBAIJAN","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens","text":["The applicant was born in DATE in GPE , GPE , and currently lives in GPE .","The applicant was a unit commander in ORG . On DATE he was arrested in PERSON , GPE , due to his alleged participation in the coup d'Etat organised by PERSON .","On DATE ORG , sitting as a court of first instance for especially serious crimes , convicted the applicant for high treason , use of armed forces against the citizens and constitutional government authorities , creation of illegal armed units , and illegal possession of weapons . He was sentenced to DATE imprisonment and confiscation of property . This judgment was final and not subject to appeal under the rules of criminal procedure applicable at that time .","Upon GPE 's admission to ORG , the applicant 's name was included in the lists of the \u201c alleged political prisoners in GPE \u201d submitted to the experts of the Secretary General .","Pursuant to a presidential pardon decree of DATE , the applicant 's sentence was reduced by CARDINAL .","Pursuant to another presidential pardon decree of CARDINAL DATE , the applicant was released from serving the remainder of his sentence . As the applicant was no longer imprisoned , no final opinion was adopted by the experts of the Secretary General on whether he could be considered as a political prisoner .","In DATE a new Code of Criminal Procedure ( \u201c the CCrP \u201d ) and new Criminal Code of GPE were adopted . Before the new ORG 's entry into force on DATE , on DATE ORG passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules ( \u201c the LAW \u201d ) .","On DATE the applicant , using the opportunity granted to him by LAW , filed a cassation appeal against the judgment of DATE with ORG . On DATE ORG refused to accept the appeal due to the applicant 's failure to enclose a copy of the challenged judgment .","On DATE the applicant again filed the cassation appeal , which was registered by ORG on DATE . In his appeal he noted that , although he had been pardoned and released from imprisonment , his conviction for high treason remained intact . He argued that his trial by the first - instance court had been unfair . He also argued that , under LAW the actions for which he had been convicted could not be qualified as \u201c high treason \u201d . He asked the court to quash the judgment of DATE .","According to the Government , on DATE ORG \u201c informed the applicant that the appeal hearings concerning his case would be held on DATE \u201d . According to the applicant , he did not receive any such summons and , in general , did not receive any information concerning his case for DATE .","On DATE the applicant wrote a letter to ORG inquiring about the status of the proceedings . He also requested to add an issue concerning the confiscation of property to his appeal . In reply , by a letter dated DATE , the Head of ORG informed the applicant that the court had not received from him any documents in this respect .","On DATE the applicant was sent a copy of the ORG decision concerning his case , dated DATE . The applicant was informed that on DATE ORG had examined his cassation complaint in the presence of a public prosecutor but in the absence of the applicant . The judgment was silent as to the reasons for holding the hearing in the applicant 's absence . During the hearing , the prosecutor asked the court to dismiss the appeal . The court found that the applicant 's guilt had been duly established during the trial in the first - instance court and that his actions had been properly qualified under the criminal law . Accordingly , the court dismissed the applicant 's appeal as being unsubstantiated .","In accordance with the PERSON of DATE on ORG into Force of LAW ( \u201c LAW ) , judgments and other final decisions delivered by first instance courts under the old ORG before the entry into force of the new CCrP , may be reconsidered by an appellate court or ORG in accordance with the relevant provisions of the new CCrP.","In accordance with Article CARDINAL of the new ORG , ORG may leave the cassation appeal unexamined if the person lodging the appeal fails to attach to his appeal a copy of the disputed judgment or decision .","A cassation appeal lodged with ORG is transmitted to one of the judges of the relevant chamber of ORG for preliminary examination ( Article CARDINAL of the CCrP ) . Within DATE of receiving the appeal , the judge carrying out the preliminary examination of the appeal must , inter alia , inform the public prosecutor , the convicted ( or acquitted ) person and other parties to the case or interested parties about the time and place of examination of the merits of the appeal ( Articles CARDINAL and CARDINAL of the ORG ) .","When examining the merits of the appeal , ORG deals only with the points of law and verifies whether rules of criminal law and criminal procedure had been applied correctly ( Article CARDINAL of the CCrP ) . The examination on the merits is carried out by a chamber composed of CARDINAL judges . The persons having a right to lodge an appeal and the public prosecutor representing the prosecution before ORG have the right to be present at the court hearing ( LAW CCrP ) .","ORG hearing is opened by the president of the chamber who announces which court decision will be examined and on what grounds , the composition of the chamber examining the case , and which of the parties to the criminal proceedings are present at the hearing . The absence of the person who has lodged the appeal , if he has been duly informed about the hearing , does not prevent ORG from deciding to proceed with the hearing in his or her absence ( Article CARDINAL of the CCrP ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5720","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2000,"docname":"P.R. v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a Cape Verdean and NORP national , born in DATE and living in the GPE . She is represented before the ORG by Ms Y.M. Schrevelius , a lawyer practising in GPE .","A.","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the applicant moved from the LOC to the GPE where she married a NORP man . On the basis of the marriage she obtained a residence permit .","","At the time the applicant came to the GPE she had CARDINAL minor children , PERSON and GPE , who stayed behind in LOC in the care of their grandmother .","On DATE the applicant \u2019s husband passed away . The applicant \u2019s residence permit was subsequently withdrawn . She remained in the GPE , however , and in DATE she obtained NORP citizenship .","On DATE the applicant filed a request to the head of police ( korpschef ) of the PERSON region for a provisional entry visa ( machtiging tot voorlopig verblijf ) for her CARDINAL children . The request was forwarded for consideration on the merits to ORG ( ORG ) of ORG . At the time of the request the children were CARDINAL , DATE of age respectively .","On DATE ORG , on behalf of ORG , rejected the applicant \u2019s request . ORG concluded that the family ties had been broken since , after the applicant had left , the children had been living with the grandmother and were being brought up by her . There was no indication that this situation could not be maintained . Moreover , the applicant had not shown that she had been involved with the upbringing and care of the children . The fact that the applicant had regularly transferred money to LOC was insufficient to assume that family ties had continued to exist .","The decision further stated , in accordance with national aliens policy , that , apart from international obligations , aliens could only be allowed for residence in the GPE if this served \u201c essential interests of the GPE \u201d ( wezenlijk Nederlands belang ) or in case of cogent reasons of a humanitarian nature ( klemmende PERSON aard ) . Neither of these conditions was met in the case of the applicant \u2019s children .","On DATE the applicant filed an objection ( bezwaar ) through her counsel to the head of ORG with respect to her CARDINAL youngest children , PERSON and DATE .. On DATE she filed additional grounds for her request which emphasised the applicant \u2019s special and emotional ties with her children . The explanation given for the time elapsed between the applicant \u2019s departure from the LOC and the request for entry of her children ( DATE ) was that the applicant had waited for naturalisation before applying for family reunification . The applicant submitted that she had been back to the LOC twice , in DATE , to visit her children , that she made DATE phone calls to her children , that she received child benefits in the GPE and had made CARDINAL money transfers for her children DATE and DATE . She moreover held that her mother , who was DATE and suffering from a nervous disease - for which the applicant submitted a medical certificate - was unable to provide further care for the children .","On DATE an inquiry commission ( hoorcommissie ) of ORG of ORG ( ORG en GPE van het ministerie PERSON ) held a hearing with the applicant with a view to her objection .","On DATE the Minister of ORG rejected the applicant \u2019s objection concluding that , other than mere kinship , no special relationship could be distinguished between the applicant and the children . Furthermore , as regards the care of the children in LOC , the applicant had not sufficiently shown why her mother , in spite of her disease , would not be able to continue taking care of the children . Moreover , the Minister established that a brother and sister of the applicant \u2019s children who were of age were living with the applicant \u2019s minor children at the same address and they could contribute to their care .","The applicant lodged an appeal on behalf of her children with ORG of the Hague ORG sitting in GPE ( Arrondissementsrechtbank te \u2018 s - Gravenhage zittinghoudende in GPE , PERSON ) . She invoked , among others , LAW in support of her claim .","On DATE ORG rejected the appeal as unsubstantiated . It held that the children in fact did no longer belong to the applicant \u2019s family . It dismissed the argument of the applicant \u2019s uncertain status in the GPE before her naturalisation , with a reference to the fact that she had not tried to get her children to come to the GPE when her NORP husband was still alive . ORG further held that the financial contributions made by the applicant could not be considered as a real contribution to the care and upbringing of the children . It stated that no evidence had been produced as to the mentioned phone calls from the applicant to the children and also that the applicant had only visited the children twice after her departure . ORG assessed that the applicant had brought the family \u2019s living as a unit to an end when she decided to leave LOC and come to the GPE . ORG concluded that no other special relation had further been established between the applicant and her children and that therefore the family ties between applicant and her children should be considered to have ceased to exist . It found no grounds therefore to grant admission for family reunification .","ORG dismissed the claim for admission of the children on humanitarian grounds since it had not been shown that care for the children could not be continued in LOC .","When assessing whether the ORG \u2019s actions had been in compliance with the requirements of LAW firstly acknowledged that there was \u201c family life \u201d in terms of that provision . It reasoned , with reference to the G\u00fcl v. GPE judgement of DATE and the PERSON v. the GPE judgement of DATE , that its task was to strike a balance between the interests of the applicant and those of the society as a whole ( the latter interest being the necessity of a restrictive immigration policy ) . ORG finally concluded in the light of the ORG \u2019s jurisprudence that the applicant \u2019s choice of family life had been one of not being with her children and that if the applicant wished to re - establish direct family life with her children , this would also be possible in LOC .","The Regional Court decision was final and not subject to appeal .","B. Relevant domestic law","LAW ( Vreemdelingenwet ) provides that the Minister of Justice ( Minister PERSON ) decides on requests lodged by aliens for admission to and residence in the GPE . The Minister may refuse access and residence on general interest grounds ( gronden aan het algemeen belang ontleend ) .","In view of the situation in the GPE as regards population size and employment , Government immigration policy - defined in LOC ( Vreemdelingencirculaire ) of DATE - is aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if : ( a ) the GPE are obliged under international law to do so ; ( b ) this serves \u201c essential interests of the GPE \u201d , e.g. economic or cultural interests ; ( c ) there are \u201c cogent reasons of a humanitarian nature \u201d ( LAW ACARDINAL\/CARDINAL.CARDINAL of FAC ) .","","The policy for admission for family reunification purposes is laid down in LAW PERSON of the Aliens Circular . This provides , insofar as relevant , that a residence permit for the purposes of family reunification may be granted to a parent of NORP nationality with minor children , when the children factually belong to his \/ her family and family ties with one of the parents already existed abroad . Family ties are considered to have definitely ceased to exist in case of long - term integration of the child into another family while the parent(s ) no longer exercise parental authority and no longer provide for the costs of upbringing and care of the child ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99817","languageisocode":"ENG","respondent":"CHE","branch":"GRANDCHAMBER","date":2010,"docname":"CASE OF NEULINGER AND SHURUK v. SWITZERLAND","importance":1,"conclusion":"Violation of Art. 8 (in case of enforcement of the Federal Court's judgment)","judges":"Andr\u00e1s Saj\u00f3;Anatoly Kovler;Christos Rozakis;Corneliu B\u00eersan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Fran\u00e7oise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa;Josep Casadevall;Nicolas Bratza;Nona Tsotsoria;P\u00e4ivi Hirvel\u00e4;Peer Lorenzen;Sverre Erik Jebens;Zdravka Kalaydjieva","text":["The applicants were born in DATE and DATE respectively and live in GPE ( GPE of GPE ) .","The facts as submitted by the parties may be summarised as follows .","The first applicant , who refers to herself as NORP , decided to settle in GPE in DATE . There she met an NORP national , who is also NORP , and they were married on DATE in GPE . They had a son , PERSON , who was born in GPE on DATE . He has NORP and NORP nationality .","According to the applicants , in DATE the child \u2019s father joined the NORP \u201c NORP \u201d movement , which they have described as an ultra - orthodox , radical movement that is known for its zealous proselytising .","Marital difficulties then arose , and the first applicant , fearing that her husband would take their son to a \u201c NORP - Lubavitch \u201d community abroad for religious indoctrination , applied to ORG for a ne exeat order to prevent PERSON \u2019s removal from GPE . On DATE the court made a ne exeat order that was to expire when the child attained his majority , that is to say on DATE , unless annulled by the court in the meantime .","In an interim decision of DATE , the same court granted \u201c temporary custody \u201d of the child to the mother and requested the GPE social services to draw up an urgent welfare report . The \u201c guardianship \u201d of the child was to be exercised jointly by both parents .","NORP In a decision of CARDINAL DATE , the court , on the recommendation of a social worker , confirmed the first applicant \u2019s custody of the child and granted a right of visitation to the father .","On DATE the NORP social services were obliged to intervene . They instructed the parents to live apart , in the interest of the child . The letter they sent to the parents read as follows :","\u201c CARDINAL . We take the view that to maintain a common home and live , as you have been doing , under the same roof is not in the child \u2019s interest \u2013 and that is an understatement . It appears to us that the environment of constant recrimination and invective created by PERSON against GPE has caused her permanent stress that may prevent her from fulfilling her role as a mother , when she is already faced with the need to find a job in order to support herself and pay the rent . It should be noted that PERSON pays neither the maintenance ordered by the court nor the rent .","We felt that some of PERSON \u2019s recriminations verged on the absurd . He has decided that the child \u2019s illness , like the glandular fever and the epileptic fit that the child has suffered , are the mother \u2019s fault . PERSON persists in asserting that Isabelle \u2018 is not a good mother\u2019 ; he does not accept the fact that the child attends nursery school , and claims that the medical certificates are insufficient . We advise PERSON to speak to the doctors who are treating the child .","Although he is maintained by GPE , PERSON demands that the food complies to a very strict degree with NORP dietary laws , observing CARDINAL dietary rule or another ...","There is no doubt that living apart will resolve some of these problems .","We find that PERSON creates a hostile environment at home DATE an atmosphere of verbal aggression and threats that terrorise the mother .","In the light of the foregoing , we can not but find that the mother is exposed to mental harassment and that the maintaining of a common home is harmful to the child .","NORP Under the powers conferred on us by sections DATE of the PERSON on legal capacity , we reiterate our warning to PERSON , calling on him not to take his child with him to engage in religious proselytising on the public highway , where he encourages passers - by to put on phylacteries and collects donations .","Likewise , the father is requested not to take the child with him to the synagogue for DATE at a time .","We emphasise that the provisions on access in respect of the child are intended to bring father and child together for their common activities , and not for other purposes . \u201d","DATE , the first applicant filed a complaint with the police accusing her husband of assault .","NORP In an injunction of CARDINAL DATE the competent judge of ORG , upon an urgent application lodged DATE by the first applicant , prohibited the father from entering the child \u2019s nursery school or the first applicant \u2019s flat , from disturbing or harassing her in any manner whatsoever , and from carrying or possessing a weapon . Restrictions were also imposed on the access right granted to the father , who was now authorised to see the child only twice a DATE under the supervision of the social services at a contact centre in GPE .","The couple \u2019s divorce was pronounced on DATE with no change in the attribution of guardianship .","As the father had defaulted on his maintenance payments to the first applicant , an arrest warrant was issued against him on DATE .","In a decision of DATE , a judge of ORG dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from GPE . The judge found , in particular , that there was a serious risk that the mother would not return to GPE with the child after visiting her family abroad , in view of the fact that she had no ties in that country .","On DATE the first applicant secretly left GPE for GPE with her son .","On DATE PERSON \u2019s father contacted ORG , which was unable to locate the child until DATE , when ORG forwarded him a note from ORG indicating that the first applicant was in GPE .","On DATE ORG transmitted to ORG an application for the return of the child pursuant to LAW of DATE ( the \u201c LAW \u201d ; see paragraph CARDINAL below ) . In support of its application it indicated , among other things , that ORG had notified it only DATE before that PERSON and his mother were living in GPE and that the latter had applied for the renewal of her NORP passport .","In a decision of CARDINAL DATE , delivered upon an application by the child \u2019s father , ORG observed that the child was habitually resident in GPE and that , as of DATE , the date of the ORG departure , the parents had been joint guardians of their son , with the mother having temporary custody and the father a right of access . The court held that the child \u2019s removal from GPE without the father \u2019s consent had been wrongful within the meaning of LAW .","On DATE the child \u2019s father lodged an application with the Lausanne District Justice of the FAC seeking an order for his son \u2019s return to GPE . He requested in particular , as an extremely urgent measure , that ORG be ordered to retain the applicants\u2019 NORP passports .","On DATE the Justice of the FAC made an order allowing the application by PERSON \u2019s father for an extremely urgent measure .","Following a new application for an extremely urgent measure , faxed by the child \u2019s father on DATE , the Justice of the FAC , in a provisional - measures order made that DATE , ordered the first applicant to deposit her passport and that of PERSON immediately with the court registry of ORG , on pain of criminal sanctions for refusal to comply with the decision of an authority .","The first applicant , assisted by counsel , and the legal representative of the father , whose obligation to appear in person had been waived , made representations to the Justice of the FAC on DATE .","In a decision of CARDINAL DATE , after a hearing , the father \u2019s application was dismissed by ORG of the Peace . The court took the view that , whilst the child \u2019s removal had been wrongful within the meaning of LAW , it had to apply LAW , sub - paragraph ( b ) , of that LAW , as there was a grave risk that the child \u2019s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation .","On DATE the father appealed against that decision before ORG ( chambre des tutelles ) of ORG , which ordered an expert \u2019s report and for that purpose appointed PERSON , a paediatrician and child psychiatrist . In his report , delivered on DATE , he stated that the child \u2019s return to GPE with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return , in particular the conditions awaiting the mother and their potential repercussions for the child ; that the return of the child without his mother would expose him to a risk of major psychological harm ; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term .","On DATE the competent court in GPE cancelled an indictment for domestic violence that the second wife of PERSON \u2019s father had initiated , as she had left the country .","In a letter of CARDINAL DATE , in connection with the proceedings to secure the child \u2019s return , ORG made the following observations to its NORP counterpart :","\u201c We acknowledge receipt of your letter dated DATE . We wish to respond to the questions raised in that letter as follows :","PERSON states that in the event that the mother refuses to return to GPE , he will take care of the child . He currently lives in an apartment with a roommate , however if the child is returned to GPE , he states that he will immediately secure an apartment to live in with the child . He is currently working and studying at an institution for religious learning , from TIME The child would be in DATE care \/ nursery school during TIME . PERSON points out that prior to the child \u2019s abduction to GPE , he was in day care as the mother worked . PERSON advises that his extended family would provide a back - up system for him in the event that he would need assistance from time to time .","ORG in GPE has raised a concern as to how PERSON can care for the child when his right of access has been restricted . As we stated in our letter to your office dated DATE , it must be remembered that according to the report of the social worker in GPE , the father and child had a wonderful relationship . There were plans to expand the visitation , to include TIME visits , however these plans were interrupted as a result of the mother \u2019s abduction of the child . If the mother were to refuse to return to GPE with the child , she would in effect be agreeing to the father having de facto custody , and PERSON could apply to the NORP court to grant an order reflecting the new reality .","You further asked what steps could be taken to protect the mother should she return , given her allegations of violence on the part of PERSON . PERSON denies all such allegations . Furthermore , we are attaching a copy of the decision of ORG dated DATE , together with a translation into LANGUAGE . This decision concerned an indictment filed against PERSON for allegations of assault by his second wife . As you can see , the complainant apparently left GPE and could not be located , therefore the court cancelled the indictment against PERSON .","In any event , we wish to draw your attention to the law in GPE that provides protection in cases of allegations of family violence ; that law is ORG . We are attaching a translation of that law into LANGUAGE , and an unofficial translation into LANGUAGE . LAW provides for protection orders that can be made . Therefore , if the mother has any concerns for her safety , she can apply to the court in GPE and request any necessary protection . Her allegations should not constitute a basis for the NORP court to refuse to return the child to GPE .","You informed us that the court ordered a psychological evaluation of the child . We must express our concern in this respect . Such evaluation was not ordered by the lower court , and we wish to inquire as to why it has been ordered at this late stage . It must be remembered that the child was abducted by the mother in DATE . The child has not seen his father in DATE . During this period he has been subject to the sole influence of the mother . We therefore question what can be gained by a psychological evaluation of the child . It must be remembered that this is LAW proceeding , and not a custody case . It seems that the mother is trying to prove that the child will be psychologically damaged by being separated from her if he is returned to GPE . However this can be avoided if the mother will act in the child \u2019s best interests and return with him . As we stated in our letter of DATE , the mother does not appear to have any justifiable reason under LAW to prevent her return ... \u201d","NORP In a letter of DATE to the lawyer acting for PERSON \u2019s father , ORG made the following observations on the question whether the first applicant would be prosecuted or imprisoned if she returned to GPE :","\u201c ... You have requested that we inform you as to the legal consequences that would face the mother , PERSON , should she return to GPE with the child , as a result of the act of abduction of the child .","In terms of criminal consequences for the act of abduction , abduction is an offence under GPE \u2019s Penal Law CARDINAL and carries a possible penalty of imprisonment . However , according to the guidelines of the ORG Attorney of GPE , upon receipt of a criminal complaint of parental abduction , the police are to forward the matter to ORG under LAW for guidelines as to how to proceed in the matter . The ORG Attorney \u2019s guidelines provide that criminal proceedings should be commenced only in very exceptional circumstances . In PERSON case , should she comply with an order to return the child to GPE , not disappear with the child upon her arrival to GPE , cooperate with the NORP authorities and comply with the existing court order for supervised visitation by PERSON ( pending any further decision ) , ORG for GPE would positively consider instructing ORG to close the criminal file for lack of public interest , provided that Ms Neulinger not commit further acts of abjection with respect to the child .","In terms of civil consequences , we can inform you that the sole consideration in both the NORP civil courts and ORG courts , when deciding matters such as custody and access , is the best interests of the child ... \u201d","In a judgment of CARDINAL DATE , ORG of ORG dismissed the father \u2019s appeal . Having carried out an additional investigation , and taking into account the expert \u2019s report by PERSON of DATE , it took the view that the child \u2019s return carried a grave risk of psychological harm , whether or not he was accompanied by his mother , and would also place him in an intolerable situation . It therefore considered that the conditions of LAW , sub - paragraph ( b ) , of LAW were met . Finding , however , that the child could not be deprived of all relations with his father , it prescribed measures with a view to rebuilding the personal relationship between them . Its judgment read as follows :","\u201c CARDINAL . ( d ) ... In response to the questions put to him , expert B. ... states in his conclusions that PERSON \u2019s return to GPE with his mother would expose him to psychological harm , the intensity of which can not be assessed without knowledge of the conditions of such return , in particular those awaiting his mother and the repercussions which they might have on the child ; as regards the child \u2019s return to GPE without his mother , [ the expert ] is of the opinion that it would expose him to major psychological harm , as described in detail in the report . In the \u2018 discussion\u2019 part of his report the expert emphasises that PERSON \u2019s situation seems at present to be completely blocked . On the one hand , given his young age and his complete lack of recollection of DATE in GPE , including of his father , any visit to that country without his mother , even a brief visit , and even if the legal situation allowed it , would be psychologically highly traumatic , involving extreme separation - related anxiety and a major risk of severe depression . On the other hand , the possibility of the mother \u2019s return to GPE with PERSON , even for a short period , is totally out of the question for the mother . In answer to the question whether PERSON \u2019s return to GPE might place the child in an intolerable situation , the expert replied that it was \u2018 GPE the conditions of the child \u2019s possible return to GPE that would or would not render the situation intolerable . He observed that , likewise , it was the conditions of his continuing residence in GPE that would or would not render his situation there intolerable and that the maintaining of the status quo represented a long - term major psychological risk for the child , with the result that , if there were no understanding between his parents , an agreement would urgently be required between the child protection services of GPE residence in order to make up for their failure to act .","In accordance with LAW paragraph , of LAW , this court also requested ORG to provide information about the child \u2019s social background , by answering the following questions : \u2018 in the event that , as she has stated , the mother does not return to GPE , who will take care of the child and where will he stay ? As the father does not appear to be in gainful employment , who will provide for the child \u2019s upkeep ? As the right of access has been restricted by judicial decisions , what measures will be taken to ensure that the exercise of the right of access does not harm the child \u2019s physical and psychological welfare?\u2019 In its letter of CARDINAL DATE ORG did not really answer the questions put to it , so it is impossible to be satisfied about the interests of the child . ORG merely mentioned the appellant \u2019s intentions concerning his son if his son should return to GPE without his mother , in the following terms : \u2018 [ I]n the event that PERSON \u2019s mother refuses to return to GPE , the father will take care of the child . He currently lives in an apartment with a roommate ; however if the child is returned to GPE , he states that he will immediately secure an apartment to live in with the child . He is currently working and studying at an institution for religious learning , from CARDINAL a.m. to CARDINAL p.m. The child would be in DATE care \/ nursery school during TIME . Mr GPE points out that prior to the child \u2019s abduction to GPE , he was in day care as the mother worked . PERSON advises that his extended family would provide a back - up system for him in the event that he needs assistance from time to time.\u2019 As to the issue of how PERSON would be able to take care of the child , given that he has only a restricted right of access , ORG emphasised : \u2018 As we stated in our findings of DATE , according to the report of the social worker in GPE , the father and child had a wonderful relationship . There were plans to expand the visitation , to include TIME visits ; however these plans were interrupted as a result of the mother \u2019s abduction of the ORG concluded that \u2018 [ i]f the mother were to refuse to return to GPE with the child , she would in effect be agreeing to the father having de facto custody , and PERSON could apply to the NORP court to grant an order reflecting the new ORG .","It should be noted that neither the conclusions of the child psychiatrist \u2019s report nor the information provided by ORG are conducive to PERSON \u2019s return to GPE . Not only would such a return entail a grave risk of exposure to psychological harm , whether or not he is accompanied by his mother , it would also place him again in an intolerable situation . Firstly , the psychiatric expert observes that if the child returns to GPE with his mother , he will risk being exposed to psychological harm whose intensity can not be assessed without knowledge of the conditions of that return . In that connection , ORG is of the opinion that , since the child \u2019s removal to GPE , even if his mother accompanies him , may expose the child to psychological harm and since , unlike the \u2018 classic scenario\u2019 envisaged by LAW , the respondent has custody of her son , she can not reasonably be required to return to GPE . An additional factor is that the mother \u2019s return to GPE would also undermine the child \u2019s economic security , since the mother would be required to find a job there , in order to provide not only for her own needs but also for those of her son . The fact that the appellant has never provided for his child \u2019s upkeep and that he is known to earn CARDINAL [ Swiss ] francs per month can not be disregarded when the interests of the child are taken into consideration in that context . Lastly , it must be considered that the requirement of the mother \u2019s return is disproportionate to the reason for the return : the object of LAW is to put the child back into the legal situation in which he was before he was abducted . However , the present return is requested in order to allow the appellant to exercise his right to a personal relationship , a right which is shown to have been exercised before the child \u2019s departure under the supervision of the social services in the form of CARDINAL DATE meetings of TIME each . To require a mother to uproot herself in order to permit the exercise of such a restricted right of access , when the child \u2019s return certainly entails a risk of grave psychological harm , in view of the conditions of insecurity in which the return will take place , constitutes an intolerable situation for the child within the meaning of LAW , sub - paragraph ( b ) , of LAW .","As to PERSON \u2019s return to GPE without his mother , the expert is of the opinion that it would be psychologically highly traumatic , involving extreme separation anxiety and a major risk of severe depression , which can be explained by his young age and his total lack of recollection of DATE in GPE , including of his father . That element is sufficient for a finding that the condition laid down in DATE , sub - paragraph ( b ) , is satisfied . In addition , the information provided by ORG about the arrangements envisaged in the event that the child returns without his mother are , at the very least , a matter for concern : although the appellant has , legally speaking , only a very restricted right of access , under supervision , it is envisaged , according to the information provided by ORG , that the appellant will take his son home ( without any guarantee that he will by then have an individual flat ) and will thus have de facto custody . In that connection , ORG claims that by refusing to return to GPE with her son , the respondent is implicitly acquiescing in that change of situation \u2013 a new reality of which the appellant will then seek validation by the NORP judicial authorities . That does not correspond to the aim pursued by LAW , which provides for the immediate return of the unlawfully removed child in order to put it back in the status quo ante . Such a return can not therefore be ordered on the basis of LAW , and it is emphasised that there is no doubt that PERSON \u2019s return to GPE in such circumstances would definitely expose him to a risk of major psychological harm , owing not only to the fact that he would be abruptly separated from his mother , when she has been his principal parental reference since he was born and has been the only one to provide for his upkeep , but also to the fact that he will be just as abruptly faced with a father of whose existence he has just learnt . In the light of the foregoing , the appeal on this point must be dismissed . ...","NORP ... In the present case , it is apparent from the file that PERSON has lived with his mother , who has custody of him , for DATE in GPE . Thus , the Justice of the Peace of LOC had jurisdiction , ratione loci and ratione materiae , to take the disputed protective measure . As to the merits , it is sufficient to state that , since the child has no recollection of his father , owing to the process of physiological amnesia attributable to his very young age , there are valid grounds for avoiding an abrupt reunion , as the welfare of the child requires that the resumption of a personal relationship with his father should take place calmly and gradually , after he has been properly prepared for that new situation , as may be seen from the expert \u2019s convincing submissions on that point . The ground of appeal is therefore ill - founded and must be rejected ... \u201d","The father lodged a civil appeal with ORG seeking the quashing of ORG judgment and the return of the child to GPE . He alleged that the court had misapplied LAW , sub - paragraph ( b ) , of LAW , principally , and LAW , secondarily .","In a decision of DATE , the President of the appropriate division of ORG granted the father \u2019s request for immediate suspension of the judgment .","In a judgment of CARDINAL DATE , served on the first applicant \u2019s lawyer on DATE , ORG allowed the father \u2019s appeal . The relevant passages of its judgment read as follows :","\u201c CARDINAL . The object of LAW on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any ORG ( DATE , sub - paragraph ( a ) ) . The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ( Article CARDINAL , sub - paragraph ( a ) ) . \u2018 Rights of custody\u2019 include rights relating to the care of the person of the child and , in particular , the right to determine the child \u2019s place of residence ( DATE ( a ) ) . In the present case it is not in dispute that the child \u2019s removal to GPE was wrongful , since the father retained , jointly with the respondent , the right of \u2018 ORG , which under NORP law includes the right to decide on the child \u2019s residence . Moreover , since the application for return was presented within DATE after the removal , the respondent can not deny either that , in principle , pursuant to LAW , the child \u2019s prompt return should be ordered . The only matter in dispute is therefore the question whether an exception to that return may be applied under LAW , sub - paragraph ( b ) , of LAW .","According to the appellant , by refusing to order the child \u2019s return to GPE , ORG misapplied LAW , sub - paragraph ( b ) , of LAW .","CARDINAL Under LAW , sub - paragraph ( b ) , of LAW , in respect of which ORG is entitled to examine matters of compliance freely ( section CARDINAL(b ) of LAW ) , the judicial authority of the requested ORG is not bound to order the child \u2019s return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .","The exceptions to return provided for LAW must be interpreted restrictively ; the parent who has abducted the child can not take advantage of his or her unlawful conduct ( judgment CARDINAL of DATE , recital CARDINAL , in DATE , p. CARDINAL ) . Only grave risks must be taken into consideration , excluding any grounds relating to the GPE child - rearing capacities , as the purpose of LAW is not to attribute parental authority ( ORG judgment CARDINAL III CARDINAL , recital CARDINAL ; CARDINAL II CARDINAL , recital CARDINAL , p. CARDINAL ) . An exception to return under LAW , sub - paragraph ( b ) , of LAW , is therefore not open to consideration unless the child \u2019s intellectual , physical , moral or social development is under serious threat ( judgment CARDINAL of DATE , recital CARDINAL \/ bb , in DATE , p. CARDINAL and the reference cited therein ) . The burden of proof lies with the person who opposes the child \u2019s return ( ibid . , recital CARDINAL , in DATE , p. CARDINAL and the reference cited therein ) .","CARDINAL ORG observed that the case concerned a very young child in the custody of his mother , who had always provided for him . The father , for his part , lived in a religious community where he was fed , and from his activity as a sports and art teacher he had a DATE income of CARDINAL [ Swiss ] francs . The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home . For the same reason , the NORP courts ordered him to live separately and prohibited him from approaching the mother \u2019s flat . Before the child \u2019s removal to GPE he had only had a restricted right of visitation , limited to TIME twice a week , under the supervision of the NORP social services . Concerning the conditions of a possible return of the child without his mother , according to the information provided by ORG on DATE , the father , who now shares a flat with CARDINAL other tenant and still works in an institution for religious education , would be prepared to take care of the child . Taking into account the laconic and not very reassuring nature of this information , together with the expert \u2019s report by PERSON ... , a psychiatrist , ORG considered that a return to GPE involved a risk of psychological harm for the child and might place him in an intolerable situation , whether or not he was accompanied by his mother . The court added that , in view of the father \u2019s low income , the return to GPE of the respondent would also undermine the child \u2019s economic stability and the mother would have to find a job in order to provide for them both .","In his appeal , the appellant does not criticise ORG finding that there was a grave risk that the child would be exposed to psychological harm if he returned to GPE without his mother . He is of the opinion , however , that such a risk would not exist if the child \u2019s mother accompanied him to GPE , as could be reasonably expected of her . As regards that latter hypothesis , the judgment of ORG fails to provide any evidence of such a grave risk of harm , or of any intolerable situation for the child . The expert psychiatrist failed , in particular , to address that question , simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return . As to the appellant \u2019s aggressive behaviour towards the respondent , it does not appear from ORG judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother . She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well . The social worker appointed to supervise the right of visitation had described as \u2018 ORG the father - son relationship as established just before the child \u2019s abduction by his mother . She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and\/or harass her . As to the considerations relating to the father \u2019s low income and his ties with the \u2018 Lubavitch\u2019 religious community , as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of LAW , sub - paragraph ( b ) , of LAW . Whilst such considerations may help to determine which of the CARDINAL parents offers the best child - rearing capacities for the purpose of deciding on the attribution of the right of custody \u2013 a matter that is decided by the judicial authorities of the place of habitual residence ( Article CARDINAL of LAW ) \u2013 they are not pertinent , however , for a decision about the return of a child after a wrongful abduction ( see recital CARDINAL above ) .","As to the mother \u2019s threat not to return to GPE , the judgment of ORG did not deal at all with the reasons for her refusal , whereas it should have established the existence of objective circumstances justifying that attitude . ORG judges quoted the expert psychiatrist who had referred to the \u2018 judicial ORG that would be entailed in the event of a return to GPE , without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction . Supposing that such a risk were proven , she could not be expected to return to GPE with the child \u2013 and that would accordingly rule out the return of [ the child ] in view of the major psychological harm that would be caused to him by the separation from his mother . She made no comment on that question in her reply to ORG ; in particular , she has not claimed that immediate imprisonment , or even any criminal sanction at all , would be imposed on her . Neither has she argued that in the event of her return to GPE it would be impossible or very difficult for her to integrate , or , in particular , to find a new job . Consequently , it can not be said that the mother \u2019s return , and therefore that of the child , would be unbearable for economic reasons either . Therefore , as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to GPE , it must be accepted that she could reasonably be expected to return to that ORG of origin accompanied by the child . In these circumstances , it is of no import that the information provided by ORG ( see recital CARDINAL above ) on which the ORG based , in particular , its justification of the exception to the child \u2019s return as provided for by DATE , sub - paragraph ( b ) , of LAW , was deemed not very reassuring , because that information was based only on the hypothesis of the child \u2019s return without his mother .","Accordingly , ORG judges breached LAW , sub - paragraph ( b ) , of LAW in finding that they were entitled to apply an exception to the child \u2019s return to the ORG of his habitual residence . The appeal must therefore be allowed and the judgment of the court below quashed , without it being necessary to examine the complaint concerning a violation of LAW . It is incumbent on the respondent to secure the return of the child ... to GPE by DATE . ...","ORG therefore finds as follows :","The appeal is allowed and the judgment of the court below is quashed .","The respondent is ordered to secure the return of the child ... to GPE by DATE .","... \u201d","On DATE the child \u2019s father , through counsel , lodged an application with LOC of the Peace , who was responsible for the enforcement of the return decision , seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure . On DATE he withdrew that application after the ORG had decided , on DATE , to indicate interim measures to the Government .","Subsequently , the applicants transmitted to the ORG a medical certificate issued on DATE by PERSON , a paediatrician in GPE , which reads as follows :","\u201c I , the undersigned , certify that I have seen the child PERSON , born on DATE , on a number of occasions since DATE .","On each occasion PERSON has been accompanied by his mother , with whom he has a very good relationship .","His behaviour is appropriate and his level of psychomotor development and language are above average . He does not appear to suffer from any psychological trauma or from any emotional or educational deficiencies .","He is a confident boy , capable of forming good relationships , in particular with adults .","He is in good physical health , with little trace of intercurrent infections .","An abrupt return to GPE without his mother would constitute a significant trauma and a serious psychological disturbance for this child . \u201d","In a provisional - measures order of CARDINAL DATE the President of ORG , at the request of the first applicant , decided that PERSON should live at his mother \u2019s address in GPE , suspended the father \u2019s right of access in respect of his son and granted parental authority to the mother , so as to allow her to renew the child \u2019s identity papers . The decision was based on the following grounds in particular :","\u201c [ I]t is noted that the respondent was summoned to appear by court order served at his last known address in GPE .","The letter was returned marked \u2018 gone NORP , which can be translated as \u2018 parti sans laisser d\u2019adresse\u2019 ( gone without leaving a forwarding address ) .","... It appears that the mother has custody of the child while parental authority is still held jointly .","The father was apparently required to \u2018 exercise a right of GPE under the supervision of the social services ...","In the context of the proceedings , the respondent never appeared at the hearings but was represented by counsel , who is apparently no longer acting for his client ...","According to case - law , the wrongful removal of a minor does not in itself preclude the establishment of a new habitual residence for the child in the country to which it has been taken ( see ORG judgment CARDINAL III CARDINAL , Journal des Tribunaux CARDINAL I CARDINAL ) .","In the present case , PERSON has been living in GPE continuously since DATE .","He attends school there .","He has family ties there on his mother \u2019s side .","He receives medical attention there .","He is also a national of GPE ,","of which he speaks the language , in this case NORP .","Interim measures in favour of the applicant were decided by ORG , which requested ORG not to return PERSON to GPE in spite of ORG decision .","Despite his legal battle , the respondent has never sought to see his child ,","and his place of residence is unknown .","He appears to have lost interest in the present case .","Consequently , the child now has a stable relationship only with his mother .","It is therefore appropriate to allow her application and to decide provisionally that PERSON should reside in GPE , GPE , at the place of his habitual residence , with his mother .","Article CARDINAL \u00a7 CARDINAL of the Civil Code provides that the father or mother not having parental authority or custody and the minor are reciprocally entitled to maintain such personal relations as may be appropriate in the circumstances .","The right to personal relations is intended to preserve the bond between parents and children ...","The maintaining and development of this bond is obviously beneficial to the child .","Personal relations must accordingly be fostered , unless the child \u2019s welfare is endangered .","The scope of personal relations and the manner in which they are carried on should be appropriate to the situation , in other words taking fair account of the parti","The child \u2019s welfare is the most important assessment criterion ( see ORG judgment CARDINAL III CARDINAL , \u0441 CARDINAL ) .","The entitled person \u2019s situation and interests should also be taken into consideration : his or her relationship with the child , personality , place of abode , free time and environment .","Special conditions for the exercise of access rights may be imposed ...","The applicant has requested the withdrawal of the respondent \u2019s access right in respect of their son PERSON .","I \u2019s access right was already limited by decisions given by the NORP authorities before the child \u2019s departure for GPE .","The child has not seen his father since DATE .","They apparently have no common language .","In any event , the resumption of access rights , if requested by the respondent , could only be gradual .","The respondent \u2019s place of residence is currently unknown .","In the circumstances it appears appropriate to order the provisional suspension of the respondent \u2019s access rights in respect of his son PERSON .","The applicant requests that \u2018 parental authority in respect of PERSON , born on DATE , be exclusively and provisionally granted to his mother PERSON in GPE for the purposes of renewing his identity papers\u2019 .","The applicant has explained that her son , who has dual NORP and NORP nationality , currently has no identity documents .","He had a NORP passport until recently .","However , when it expired the administrative authorities refused to issue him with a new one without the father \u2019s consent , as the parties had joint parental authority in respect of the child .","The respondent \u2019s place of abode is currently unknown .","The applicant is thus unable to ask him for such consent .","The child lives in GPE with her ,","and she has custody of him .","The present case , on the merits , admittedly concerns a change in the attribution of parental authority , since the applicant requests that by virtue of NORP law it be exclusively granted to her .","It may appear that the provisional measure requested , if granted , settles the case on the merits .","However , the requested measure is far more limited in scope since it is only to ensure the possibility of obtaining identity papers for the applicant \u2019s child .","The child is a NORP national resident in GPE .","It is therefore necessary for him , like any other citizen , to obtain identity papers .","The applicant \u2019s request is therefore granted .","... \u201d","It does not appear , from the information currently before the ORG , that either party to the dispute has appealed against that decision .","The relevant provisions of the Convention on the Rights of the Child of DATE , which came into force in respect of GPE on DATE , read as follows :","\u201c The States Parties to the present Convention ,","...","Convinced that the family , as the fundamental group of society and the natural environment for the growth and well - being of all its members and particularly children , should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community ,","Recognizing that the child , for the full and harmonious development of his or her personality , should grow up in a family environment , in an atmosphere of happiness , love and understanding , ...","Have agreed as follows :","... \u201d","\u201c CARDINAL . The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents . ... \u201d","\u201c CARDINAL . DATE States Parties shall ensure that a child shall not be separated from his or her parents against their will ... \u201d","\u201c CARDINAL . DATE States Parties shall respect the right of the child to freedom of thought , conscience and religion .","DATE States Parties shall respect the rights and duties of the parents and , when applicable , legal guardians , to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child . ... \u201d","\u201c CARDINAL . DATE States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child . Parents or , as the case may be , legal guardians , have the primary responsibility for the upbringing and development of the child . The best interests of the child will be their basic concern .","... \u201d","The concept of the child \u2019s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by ORG on DATE . It provides as follows :","\u201c The child shall enjoy special protection , and shall be given opportunities and facilities , by law and by other means , to enable him to develop physically , mentally , morally , spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity . In the enactment of laws for this purpose , the best interests of the child shall be the paramount consideration . \u201d","The term was used again in DATE in LAW :","\u201c In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration . \u201d","Neither the working group during the drafting of the Convention nor the Committee on the Rights of the ORG has developed the concept of the child \u2019s best interests or proposed criteria for their assessment , in general or in relation to specific circumstances . They have both confined themselves to stating that all values and principles of the LAW should be applied to each particular case ( see PERSON and PERSON ( DATE . ) , ORG for the Convention on the Rights of the Child , United Nations Children \u2019s Fund DATE , p. CARDINAL ) . In addition , the ORG has emphasised on various occasions that the LAW must be considered as a whole , with the relationship between the various articles being taken into account . Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions ( ibid . , p. CARDINAL ) .","The \u201c Guidelines on Determining the Best Interests of the Child \u201d were issued by the ORG High Commissioner for Refugees ( ORG ) . They provide , inter alia :","\u201c The term \u2018 best interests\u2019 broadly describes the well - being of a child . Such well - being is determined by a variety of individual circumstances , such as the age , the level of maturity of the child , the presence or absence of parents , the child \u2019s environment and experiences . \u201d ( ORG , DATE )","The principle of \u201c the child \u2019s best interests \u201d is also embodied in Articles CARDINAL and CARDINAL of LAW on LAW . LAW b ) reads as follows :","\u201c GPE Parties shall take all appropriate measures :","...","( b ) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children , it being understood that the interest of the children is the primordial consideration in all cases . \u201d","Under LAW ( d ) of LAW are committed to ensuring the following , with regard to equality between men and women :","\u201c [ t]he same rights and responsibilities as parents , irrespective of their marital status , in matters relating to their children ; [ and ] in all cases the interests of the children shall be paramount \u201d .","Even though the principle does not appear in LAW , ORG in its General Comments Nos . CARDINAL and DATE referred to \u201c the paramount interest \u201d of the child in the event of the separation or divorce of its parents . In its General Comment CARDINAL ( adopted at its CARDINALth Session , DATE ) ORG stated that if a marriage is dissolved , steps should be taken , keeping in view the paramount interest of the children , to guarantee , so far as is possible , personal relations with both parents . For abandoned children , special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment . In its General Comment No . DATE ( adopted at its CARDINALth Session , DATE ) ORG indicated that any discriminatory treatment in regard to divorce , child custody , visiting rights , etc . , must be prohibited , unless the paramount interest of the child required otherwise .","ORG LAW , which became legally binding with the entry into force of LAW on DATE , contains the following Article :","\u201c CARDINAL . Children shall have the right to such protection and care as is necessary for their well - being . They may express their views freely . Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity .","NORP In all actions relating to children , whether taken by public authorities or private institutions , the child \u2019s best interests must be a primary consideration .","Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents , unless that is contrary to his or her interests . \u201d","The relevant provisions of LAW , which came into force in respect of GPE on DATE , read as follows :","\u201c The GPE signatory to the present Convention ,","Firmly convinced that the interests of children are of paramount importance in matters relating to their custody ,","Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , as well as to secure protection for rights of access ,","Have resolved to conclude a Convention to this effect , and have agreed upon the following provisions :","...","The objects of the present Convention are :","( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and","( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE .","...","The removal or the retention of a child is to be considered wrongful where :","( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and","( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .","The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG .","The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE .","For the purposes of this Convention \u2013","( a ) NORP \u2019rights of custody\u2019 shall include rights relating to the care of the person of the child and , in particular , the right to determine the child \u2019s place of residence ;","( b ) NORP \u2019rights of access\u2019 shall include the right to take a child for a limited period of time to a place other than the child \u2019s habitual residence .","...","\u201c The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .","If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ...","Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .","The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .","Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child .","Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :","...","( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .","The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .","In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child \u2019s habitual residence .","In ascertaining whether there has been a wrongful removal or retention within the meaning of LAW , the judicial or administrative authorities of the requested ORG may take notice directly of the law of , and of judicial or administrative decisions , formally recognised or not in the ORG of the habitual residence of the child , without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable .","...","The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms .","An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to ORG in the same way as an application for the return of a child .","ORG are bound by the obligations of cooperation which are set forth in DATE to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject . The Central Authorities shall take steps to remove , as far as possible , all obstacles to the exercise of such rights .","ORG , either directly or through intermediaries , may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . \u201d","The Explanatory Report by PERSON on the drafting of the PERSON states as follows :","\u201c ... since CARDINAL factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge , CARDINAL effective way of deterring him would be to deprive his actions of any political or juridical consequences . The LAW , in order to bring this about , places at the head of its objectives the restoration of the status quo ... \u201d . ( paragraph CARDINAL , p. CARDINAL )","NORP However , LAW contains CARDINAL exceptions to the principle of the child \u2019s prompt return , among which the most commonly invoked exception is that of LAW , sub - paragraph ( b ) .","ORG , ORG and ORG have all expressly incorporated the concept of the \u201c child \u2019s best interests \u201d into their application of the exception based on a \u201c serious risk \u201d within the meaning of LAW , sub - paragraph ( b ) , of LAW .","In a case from DATE , ORG stated the following :","\u201c ... under LAW , sub - paragraph ( b ) , an exception can be made to the child \u2019s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation ; \u201d","and","\u201c by virtue of LAW of the [ ORG on the Rights of the ORG , a provision that is directly applicable before the NORP courts , such circumstances must be assessed with the child \u2019s best interests as the primary consideration \u201d . ( Court of Cassation , ORG , DATE , appeal no . DATE )","That court thus upheld a judgment of the Aix - en - Provence Court of Appeal of CARDINAL May CARDINAL , finding as follows :","\u201c ... the child \u2019s best interests [ had been ] taken into consideration by ORG , which [ had ] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under LAW . \u201d","ORG conducted a similar assessment in applying the exception under LAW , sub - paragraph ( b ) , indicating as follows :","\u201c ... the court had pointed out that a grave risk of harm would not exist if the mother returned to GPE with her children and ensured that their living conditions were adapted according to their best interests ... \u201d ( [ DATE ] ORG of GPE CARDINAL:CARDINAL , ORG )","In a case examined on DATE by ORG concerning the abduction of a child from GPE to GPE , Lord Hope observed :","\u201c ... it is impossible to believe that the child \u2019s best interests would be served by his return forthwith to GPE . \u201d ( In re D ( a child ) , [ DATE ] UKHL CARDINAL , [ DATE ] CARDINAL AC CARDINAL )","DATE ( a ) of LAW defines custody rights as \u201c rights relating to the care of the person of the child , and , in particular , the right to determine the child \u2019s place of residence \u201d . The LAW recognises that custody may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of the ORG in which the child had its habitual residence immediately before removal or retention ( Article CARDINAL in fine ) . Furthermore , the Explanatory Report on the ORG emphasises the ORG intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child :","\u201c In terms of LAW , custody rights may have been awarded to the person who demands that their exercise be respected , and to that person in his own right or jointly . ... Now , from the ORG \u2019s standpoint , the removal of a child by CARDINAL of the joint holders without the consent of the other , is equally wrongful , and this wrongfulness derives in this particular case , not from some action in breach of a particular law , but from the fact that such action has disregarded the rights of the other parent which are also protected by law , and has interfered with their normal exercise \u201d ( Explanatory Report by PERSON , Acts and Documents of the Fourteenth Session , vol . III , Child Abduction , Hague Conference on Private International Law , paragraph CARDINAL , pp . CARDINAL - CARDINAL )","The drafters of the ORG created an autonomous definition of custody rights quite apart from domestic - law interpretations of that concept . This autonomous nature was confirmed in the \u201c Overall Conclusions of the Special Commission of DATE on the operation of LAW of DATE on ORG \u201d ( \u00a7 CARDINAL , p. CARDINAL ) , which stated as follows :","\u201c ... \u2018 rights of custody\u2019 as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept , and thus such rights are not necessarily coterminous with rights referred to as \u2018 custody rights\u2019 created by the law of any particular country or jurisdiction thereof . ... [ T]he award of what is called \u2018 custody\u2019 to CARDINAL parent under domestic law , does not necessarily mean that all \u2018 rights of custody\u2019 within the intent of LAW have been granted to that parent . Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children , and even some LANGUAGE - language systems do not employ the term \u2018 custody\u2019 , it is necessary to look to the content of the rights and not merely to their name . \u201d","The autonomous meaning of \u201c rights of custody \u201d was further confirmed during the second meeting of ORG when the following conclusion , among others , was adopted :","\u201c ... the expression \u2018 rights of custody\u2019 ... does not coincide with any particular concept of custody in a domestic law , but draws its meaning from the definitions , structure and purposes of the Convention . \u201d ( Report of ORG to review the operation of LAW on the Civil Aspects of International Child Abduction held on DATE , p. CARDINAL )","DATE . In addition , according to ORG , the LAW is engaged only by issues relating to breaches of custody rights . It does not in principle concern situations arising from breaches of access rights , in particular where the child is taken abroad by its custodian ( Explanatory Report , paragraph CARDINAL ) .","LAW provides no enforcement mechanism or oversight body to ensure that GPE implement it . Therefore , it is possible that the case - law of domestic courts relating to LAW may differ from CARDINAL ORG to another . In practice , there is a lack of consistency in the interpretation of the various judicial bodies as regards ORG distinction between custody rights and access rights , more specifically where they have to decide whether to grant the remedy of return to non - custodial parents who hold access rights .","NORP However , there seems to be a trend towards a wide interpretation of wrongful removal or retention , thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the ORG \u2019s protection .","In the case of PERSON and ORG ; [ DATE ] CARDINAL WLR CARDINAL , CARDINAL ) , for example , a custodial parent had removed a child from GPE in breach of a restraining order ( also called a ne exeat order , prohibiting a child \u2019s removal from a given geographical area ) . In that case the child could not be removed without the consent of the non - custodial parent . The court found that the ORG \u2019s judicial remedy of return applied . They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial \u201c right to determine the child \u2019s place of residence \u201d .","ORG took the same approach in the case of PERSON , where a father lodged an application under LAW return of his children after they had been taken to GPE by their maternal grandparents ( PERSON and PERSON , [ DATE ] CARDINAL ) . The NORP court considered both a custody order , which gave the father \u201c reasonable access \u201d to the youngest child , and an injunction restraining both the mother and the father from removing the children from GPE . It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father \u2019s custody rights that had been created by the restraining order . Similarly , ORG found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events , which implicitly included decisions on the residence of the child ( PERSON v. PERSON , ORG , DATE ) . The court thus considered that the father had rights of custody within the meaning of the Convention .","It appears that other national courts , in particular in common - law countries , have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non - custodial parent before removing the child from a country , a removal without such permission may be regarded as \u201c wrongful \u201d within the meaning of LAW ( see Re F , GPE and ORG , [ DATE ] CARDINAL WLR CARDINAL , where the father had rights of custody , even though the mother had a court order giving her temporary \u201c care and control \u201d and there was no order barring the child \u2019s removal ) .","NORP However , the practice of domestic courts is not homogeneous . Thus , for example , ORG found that access rights coupled with a ne exeat clause did not constitute \u201c rights of custody \u201d within the meaning of LAW ( PERSON v. PERSON , CARDINAL F.CARDINALd CARDINAL , CARDINAL , ORG , DATE ) .","On DATE the Swiss ORG enacted the \u201c LAW and LAW , for the purpose of clarifying certain notions , especially in relation to the application of LAW of DATE . The LAW came into force on DATE . The sections of the LAW referred to by the applicants read as follows :","\u201c The return of a child places him or her in an intolerable situation , within the meaning of LAW , sub - paragraph ( b ) , of LAW , in particular where the following conditions are met :","( a ) placement with the parent who lodged the application is manifestly not in the child \u2019s interests ;","( b ) the abducting parent is not , given the circumstances , in a position to take care of the child in the ORG where the child was habitually resident immediately before the abduction , or this can not reasonably be required of that parent ; and","( c ) placement in the care of a third party is manifestly not in the child \u2019s interests . \u201d","\u201c The court dealing with the application for the return of the child shall decide , as required , on the child \u2019s personal relations with his or her parents and order the measures necessary to ensure his or her protection .","Where the application for return has been received by ORG , the competent court may , at the request of ORG or any of the parties , order the appointment of a representative or a guardian for the child , or take other protective measures even if the application for return is not yet pending before the court . \u201d","DATE . In connection with the federal decree concerning this LAW , ORG submitted to ORG a \u201c dispatch \u201d ( PERSON DATE , pp . CARDINAL - CARDINAL ) , of which the relevant passages read as follows :","In order to ensure an application of LAW of DATE that is better adapted to the interests of the child , it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation . The rule in section CARDINAL is not supposed to supersede the provision of LAW , sub - paragraph ( b ) , of LAW of DATE . The term \u2018 in ORG means that the list merely enumerates a few situations which \u2013 although essential \u2013 do not preclude reliance on the clause provided for in the Convention .","Firstly , sub - paragraph ( a ) refers to the situations in which the child \u2019s accommodation by the parent who requested the return is manifestly not in the child \u2019s interests . If that is not so , in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility , there will not , in principle , be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused . This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child .","ORG - paragraph ( b ) governs cases in which the appropriateness of the child \u2019s return can be assessed only from the standpoint of his or her relationship with the abducting parent . Where the child \u2019s accommodation by the parent who requested the return is manifestly not to be taken into consideration , the problem of his or her return to the ORG of origin will be addressed differently , depending on whether the person who wrongfully removed or retained the child ( usually the mother ) is or is not in a position to return to that ORG . If the said parent is not able to do so because , for example , he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in GPE ( for example following remarriage or on account of a situation of hardship suffered by another family member living in GPE ) , the child \u2019s psychological and physical stability may be at stake , because the child would , after the return , be obliged to live apart from his or her parents . Such separation is tolerable only in exceptional cases and must constitute an ultima ratio .","Second type of situation : where , given all the circumstances , it can not reasonably be required of the abducting parent that he or she take care of the child in the ORG where the child had his or her habitual residence immediately before the abduction ( section CARDINAL(b ) ) . It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that ORG . He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there , with the child , the court \u2019s final decision on the granting of custody . In that context , we have in mind especially those cases in which the mother can not be guaranteed safe or affordable accommodation outside the home of her former partner . One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order , whilst the abducting parent is clearly the child \u2019s primary carer . In such a case the child would only be taken to the ORG of origin to await the final attribution of the right of custody to the abducting parent , before coming back to GPE again with that parent . Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former ORG of residence . Such a solution would be inadmissible according to the spirit and purpose of LAW , because it would be incompatible with the child \u2019s interests . But the situation would have to be beyond doubt for the NORP court dealing with the request for return . Unless the circumstances can be established clearly , the court will have to rule that the return to the parent \u2019s ORG of origin is bearable and that , accordingly , the child will not be placed in an intolerable situation such as to justify a decision denying the return under LAW , sub - paragraph ( b ) , of LAW .","ORG - paragraph ( c ) refers to placement with third parties . If the child \u2019s return were to lead to separation from the parent who wrongfully removed or retained the child ( because return is impossible for that parent or can not reasonably be required of him or her ) , it could only be carried out in appropriate conditions if the child were placed with a third party in the ORG of origin . However , such a solution should only be sought , with the resulting possibility for the competent NORP court to order the child \u2019s return , if placement with CARDINAL party is not manifestly contrary to the child \u2019s interests . That third condition can be satisfied only if separation from the parent remaining in GPE is bearable for the child \u2013 which may be the case where he or she has an antagonistic relationship with that parent DATE and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child . In any event , such a situation should only be envisaged as an ultima ratio .","It must further be noted that , for the return to be compatible with the child \u2019s interests and , in particular , for the conditions of LAW to be fulfilled , the authority ruling on the matter has to be apprised of the situation prevailing in the ORG of origin and of the legal provisions in force there . Thus , the parties , and in particular the parents , have a duty to participate in the establishment of the facts . The hearing of the parties in person by the court ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) is therefore of great importance . The new provisions concerning the procedure and the cooperation with the competent authorities of the ORG of origin also play an essential role . The court must be able to verify whether , and in what manner , it is possible to ensure the child \u2019s return ( section ORG ) ) . If it does not succeed in that task , or succeeds only partially , it will not be in a position to weigh up all the consequences that a return might have for the child . The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child \u2019s reception and protection , in particular when there is some doubt about the requesting parent \u2019s capacity to look after the child properly . In this respect , section CARDINAL is thus directly related to the practical application of section CARDINAL . \u201d","The concept of guardianship is defined in LAW Law DATE . The term custody is not defined as such but is mentioned .","Section CARDINAL of that PERSON provides that \u201c [ p]arents shall be the natural guardians of their minor children \u201d . In GPE , parents , whether married , divorced or unmarried , are joint and equal guardians of their children . The term \u201c guardianship \u201d may be regarded as equivalent to \u201c parental authority \u201d in other jurisdictions .","Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances ( where a ORG adopts CARDINAL of the measures mentioned in section CARDINAL(CARDINAL ) or ( CARDINAL ) of ORG ) . This rule is set out in section CARDINAL of the PERSON .","Section CARDINAL defines and describes the role of parents in NORP law and outlines what parental guardianship entails in the following terms :","\u201c The guardianship of the parents shall include the duty and the right to take care of the needs of the minor , including his education , studies , vocational and occupational training and work and to preserve , manage and develop his property ; it shall also include the right to the custody of the minor , to determine his place of residence and the authority to act on his behalf . \u201d","Section CARDINAL sets the standard of GPE duties . It states that in exercising their guardianship , \u201c parents [ must ] act in the best interests of the minor in such manner as devoted parents would act in the circumstances \u201d .","There is a general presumption that parents should cooperate in taking decisions relating to their guardianship ( section CARDINAL ) . However , where no agreement is reached , they may refer to the court to decide the issue ( section CARDINAL ) .","Section CARDINAL provides that , when parents live apart , they may reach an agreement as to : who is going to have guardianship of the minor , wholly or in part ; who is going to have custody of the minor ; and what rights the other parent is going to have , in particular as regards contact with the child . Such an agreement is subject to the approval of the court .","Under LAW , if the parents can not reach such an agreement these issues may be determined by the court having regard to the best interests of the child .","Section CARDINAL further creates a presumption of custody in favour of the mother for children DATE unless there are special reasons for directing otherwise .","Accordingly both parents share joint decision - making authority regarding their child \u2019s place of residence . CARDINAL parent can not remove the child from GPE without the permission of the other parent or of a court . If CARDINAL parent wishes to remove the child from GPE without the other parent \u2019s consent , then the parent wishing to leave must apply to the NORP courts for a relocation order and an order for custody of the child ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22555","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2002,"docname":"SHESTAKOV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant placed MONEY on a DATE deposit account in the GPE branch of ORG ( \u00ab \u0421\u0411\u0421-\u0410\u0433\u0440\u043e \u00bb ) , then one of the largest banks in GPE . In DATE , during a financial crisis and rapid currency devaluation , the applicant requested the ORG to refund the capital with interest . The ORG refused . On DATE , at the applicant 's request , ORG ordered the ORG to pay him the money owed together with interest .","In its judgment , ORG excluded from the time for calculating interest the period from DATE to DATE , pursuant to decisions of ORG temporarily to halt all operations on private deposits due to a banking crisis . The applicant appealed that part of the decision , and requested the GPE branch of the ORG to be named as respondent , and not its GPE headquarters . ORG rejected the applicant 's appeal and confirmed the decision of ORG on DATE .","The decision was forwarded by ORG for enforcement to ORG service , as the ORG 's headquarters were situated in GPE .","The applicant complained about this decision to various judicial and executive authorities , including ORG , ORG , ORG and ORG and ORG .","On CARDINAL and DATE the applicant was informed by ORG that enforcement proceedings ( \u0438\u0441\u043f\u043e\u043b\u043d\u0438\u0442\u0435\u043b\u044c\u043d\u043e\u0435 \u043f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u043e ) had been initiated by a bailiff in GPE on DATE . The applicant did not receive a copy of that decision . The applicant was also informed that the bailiff in charge of the case had taken measures under LAW ( ORG \u0438\u0441\u043f\u043e\u043b\u043d\u0438\u0442\u0435\u043b\u044c\u043d\u043e\u043c \u043f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u0435 ORG ) , including the freezing of the ORG 's assets , funds and real estate . However , the ORG 's funds were not sufficient to satisfy the numerous creditors who also had enforcement proceedings pending against ORG . The applicant was informed that he had to wait until ORG had money on its account to enforce the decision .","On DATE the applicant was informed by ORG of ORG that , by DATE , CARDINAL enforcement proceedings had been initiated against the ORG , with an additional CARDINAL being initiated DATE . The applicant was informed that the bailiffs had seized the ORG 's cars , real property and other assets . ORG also informed the applicant that it was monitoring the enforcement of the court decisions against the ORG , and that the applicant would be notified as soon as funds were available to pay him .","On DATE the applicant was informed by ORG that the consolidated enforcement proceedings were continuing , and that the applicant 's number in the list of creditors was CARDINAL . The letter further stated that the applicant would be informed of developments in his case .","On DATE and DATE ORG declared a moratorium until DATE on execution of all creditors ' demands against the ORG . On DATE the management of the ORG was taken over temporarily by ORG ( ARKO ) , set up by the ORG in accordance with the Law on Restructuring of ORG ( \u0417\u0430\u043a\u043e\u043d \u00ab \u041e \u0440\u0435\u0441\u0442\u0440\u0443\u043a\u0442\u0443\u0440\u0438\u0437\u0430\u0446\u0438\u0438 \u043a\u0440\u0435\u0434\u0438\u0442\u043d\u044b\u0445 \u043e\u0440\u0433\u0430\u043d\u0438\u0437\u0430\u0446\u0438\u0439 ORG ) . On DATE , in accordance with the same PERSON , a moratorium was f all creditors ' demands against ORG . This period was prolonged by ARKO on DATE for DATE , until DATE . On DATE the Constitutional Court found unconstitutional the legislative provision that allowed ORG unilaterally to extend the moratorium for DATE , and ruled that such decisions should be subject to judicial control .","After the communication of the complaint to ORG on DATE , the applicant continued his efforts to have the court decision enforced . In particular , he sued ORG for compensation for pecuniary and non - pecuniary damage . His claim was rejected in the final instance by ORG on DATE . He also filed a request with ORG ( ORG \u0433. GPE ) for the ORG to be declared bankrupt , but his request was rejected on DATE for lack of standing under national law . It also appears that the applicant attempted to complain about the actions of ORG . On DATE and on DATE the Presnenskiy District Court of GPE adjourned consideration of the complaint , as the applicant failed to distinguish between a complaint and a claim for damages . On DATE the same court rejected the applicant 's request to have the requirement to pay a fee for bringing his civil claim against ORG lifted . On DATE the same court adjourned the applicant 's complaint concerning the actions of ARKO on account of his failure to comply with formal requirements . In DATE the ORG of GPE rejected the applicant 's claim for compensation against ORG for pecuniary and non - pecuniary damage","On DATE ORG approved the text of a tripartite friendly settlement involving ORG , the ORG and ARKO . The text of the friendly settlement was adopted at the general meeting of ORG on DATE by a majority of votes . The applicant , who had been invited to the meetings in DATE and DATE , did not participate and it is not clear if he submitted his vote by post . According to the agreement , the applicant is entitled to the immediate refund in cash of CARDINAL per cent of his deposit , and to CARDINAL bonds of CARDINAL ORG each with maturity dates in DATE and DATE .","On DATE ORG of ORG ( \u0430\u043f\u0435\u043b\u043b\u044f\u0446\u0438\u043e\u043d\u043d\u0430\u044f \u0438\u043d\u0441\u0442\u0430\u043d\u0446\u0438\u044f \u0410\u0440\u0431\u0438\u0442\u0440\u0430\u0436\u043d\u043e\u0433\u043e \u0421\u0443\u0434\u0430 \u0433. GPE \u043f\u043e \u043f\u0440\u043e\u0432\u0435\u0440\u043a\u0435 \u0437\u0430\u043a\u043e\u043d\u043d\u043e\u0441\u0442\u0438 \u0438 \u043e\u0431\u043e\u0441\u043d\u043e\u0432\u0430\u043d\u043d\u043e\u0441\u0442\u0438 \u0440\u0435\u0448\u0435\u043d\u0438\u0439 \u0430\u0440\u0431\u0438\u0442\u0440\u0430\u0436\u043d\u044b\u0445 \u0441\u0443\u0434\u043e\u0432 , \u043d\u0435 \u0432\u0441\u0442\u0443\u043f\u0438\u0432\u0448\u0438\u0445 \u0432 \u0437\u0430\u043a\u043e\u043d\u043d\u0443\u044e \u0441\u0438\u043b\u0443 ) , and on DATE ORG for ORG \u043e\u043a\u0440\u0443\u0433\u0430 ) confirmed the decision of DATE .","In the same set of proceedings the courts reviewed the complaints of those creditors who were dissatisfied with various aspects of the friendly settlement . The courts found the settlement and the procedures leading to its conclusion to be in accordance with national legislation . In particular , the courts rejected the complaint that the moratorium , and later the friendly settlement , conflicted with the principles of compulsory execution of judgments and inviolability of property rights . The courts referred to the decision of ORG of DATE on the constitutionality of a legislative provision allowing ORG to declare a moratorium on the execution of a lending agency 's debts . It noted that the aim of these provisions was to ensure a fair division of assets among all the creditors of a bank , which would not be possible if the \u201c first - come - first - served \u201d principle were to be applied . The courts also noted that ORG allowed closure of enforcement proceedings once a friendly settlement between the parties had been approved by a court .","On DATE , following an order of ORG of GPE , ORG closed the consolidated enforcement proceedings on court decisions against the ORG . The applicant appealed against this order , and on DATE the ORG found the bailiff 's actions lawful , as they were based on a previous court order .","Throughout DATE the applicant was informed by ORG , the ORG and ORG about the terms of the agreement . In DATE ARKO informed the applicant that PERCENT of the total number of debtors had presented their claims and benefited from the terms of the agreement . The scheme would remain open until DATE , after which date the remaining liabilities would be deposited with a public notary .","In an unrelated set of proceedings , the applicant complained that in DATE his apartment was burgled . The burglars , PERSON and PERSON , were convicted in DATE , sentenced to prison terms and ordered to compensate the applicant for the value of the stolen items . These sums were not paid until DATE , as the debtors were in prison and did not have any assets . The applicant applied to ORG to have the amount adjusted to take account of inflation . ORG rejected the claim on DATE . Its decision was confirmed by ORG on DATE .","On DATE the Presidium of ORG , acting upon a request for supervisory review lodged by ORG , quashed the decisions of DATE and DATE and remitted the case for a new consideration . On DATE ORG awarded the applicant MONEY , to be paid jointly by PERSON and PERSON On DATE and CARDINAL DATE ORG opened enforcement proceedings . On DATE these proceedings were adjourned in respect of debtor PERSON as his location was unknown . The applicant did not appeal against this order .","LAW provides that the bailiff shall issue within DATE after receiving a court order an act initiating enforcement procedure ( \u043f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u0435 \u043e \u0432\u043e\u0437\u0431\u0443\u0436\u0434\u0435\u043d\u0438\u0438 \u0438\u0441\u043f\u043e\u043b\u043d\u0438\u0442\u0435\u043b\u044c\u043d\u043e\u0433\u043e \u043f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u0430 ) . Copies of the act are to be forwarded to the parties and to the court which made the order . LAW provides that the enforcement proceedings take place at the location of the debtor or his property . LAW provides that the bailiff shall enforce the order within DATE from the date of receiving it . Article CARDINAL provides that complaints about actions of the bailiff should be submitted to the district court for the area where the bailiff is located .","The Law on Insolvency ( bankruptcy ) of ORG ( \u0417\u0430\u043a\u043e\u043d \u00ab \u041e \u043d\u0435\u0441\u043e\u0441\u0442\u043e\u044f\u0442\u0435\u043b\u044c\u043d\u043e\u0441\u0442\u0438 ( \u0431\u0430\u043d\u043a\u0440\u043e\u0442\u0441\u0442\u0432\u0435 ) \u043a\u0440\u0435\u0434\u0438\u0442\u043d\u044b\u0445 \u043e\u0440\u0433\u0430\u043d\u0438\u0437\u0430\u0446\u0438\u0439 GPE ) , Article CARDINAL thereof , provides that ORG may introduce a DATE moratorium on execution of all debts of a bank \/ lending agency if there is a threat of bankruptcy .","The Law on Restructuring of Lending Agencies gives details on the transfer of the management of a lending agency to the ORG on Restructuring of ORG ( ARKO ) . Article CARDINAL states that when ARKO takes over management of a bank \/ lending agency which is under threat of bankruptcy , a moratorium of DATE is declared on execution of all its debts . ARKO may extend the moratorium for DATE .","On DATE ORG adopted a decision ( PERSON \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 PERSON \u2116 CARDINAL ) by which it found unconstitutional the legislative provisions which allowed ORG to extend a moratorium for DATE . The ORG noted that ORG was not a public authority and that it enjoyed an unlimited discretion in this decision , which could interfere with the rights of creditors . It further noted that ORG 's actions should be subject to judicial control ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58118","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":1997,"docname":"CASE OF STAMOULAKATOS v. GREECE (No. 2)","importance":3,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed","judges":"C. Russo;N. Valticos","text":["The applicant is a NORP national born in DATE and currently resident in GPE .","On DATE he submitted to GPE an application for a disability pension under section CARDINAL of PERSON no . CARDINAL .","On the orders of the ORG an administrative inquiry was carried out by GPE , which concluded on DATE that the applicant was entitled to a pension because he had been tortured during the dictatorship and had suffered irreparable damage to his health as a result .","On CARDINAL DATE ORG advised ORG of the State ( PERSON ) to grant the applicant a pension . ORG considered that the applicant had been incarcerated because of his activities against the military dictatorship and had been tortured . As a result , his right hand was paralysed .","On DATE ORG ( Ypiressia Kanonismou Syntaxeon ) of ORG rejected the applicant \u2019s application on the ground that the conditions of CARDINAL of PERSON no . PERSON ( see paragraph CARDINAL below ) were not fulfilled . ORG considered that the applicant \u2019s allegations were not proved by court decisions or public documents issued before DATE and that the applicant had not been injured as a result either of his direct involvement in the struggle against the dictatorial regime or his opposition thereto . On DATE the applicant appealed to ORG ( PERSON ) .","The applicant \u2019s appeal was heard by ORG on DATE . It was rejected on DATE . ORG considered that the applicant \u2019s allegations were not proven by a court decision or public document issued before DATE . It also found that the torturing of the applicant during the dictatorship had not resulted in an \u201c injury \u201d but in an \u201c illness \u201d . The law , however , provided for the award of a pension to persons who had been \u201c injured \u201d as a result of their opposition to the dictatorship .","On DATE the applicant lodged an appeal on points of law with the ORG sitting in plenary , claiming that ORG had erred in law .","The Plenary held a hearing on CARDINAL DATE at which the applicant did not appear . On DATE ORG decided that the applicant had not been duly summoned and adjourned the case .","Another hearing was held on DATE at which the applicant was duly represented . On CARDINAL DATE ORG upheld the applicant \u2019s appeal , on the ground , inter alia , that ORG had failed to examine in depth the cause of the paralysis of the applicant \u2019s right hand . It sent the case back to its Third Chamber for reconsideration .","ORG held a hearing on DATE at which the applicant was neither present nor represented . On DATE it decided to adjourn the case . It ordered the applicant to produce within DATE a number of decisions issued in the context of criminal proceedings against the applicant before DATE . It also sent the applicant \u2019s file to ORG ordering it to examine the applicant and to deliver an opinion on the following issues : Was the applicant \u2019s paralysis the result of \u201c injury \u201d or \u201c illness \u201d ? What was the extent of his disability ? Was there any relationship between his disability and his activities during the dictatorship ?","On DATE ORG considered that it could not deliver an opinion on the applicant \u2019s case in the absence of any evidence that the applicant \u2019s health condition was related to his activities during the dictatorship . On DATE the applicant was informed of the ORG \u2019s decision not to deliver an opinion .","On DATE ORG held a fresh hearing .","A further hearing was held on DATE . The ORG has not been informed of any decision of ORG . The Government state that judgment is to be delivered shortly .","Section CARDINAL of Law no . ORG provides the following :","\u201c All NORP citizens who were injured by or as a result of their direct involvement in the struggle against the dictatorial regime of CARDINAL DATE to CARDINAL DATE or as a result of their opposition to the above - mentioned regime are entitled to a pension paid by ORG , provided that the above - mentioned circumstances have been recognised in a court decision based on public documents issued no later than DATE .","... \u201d","This provision does not create a right to a pension for persons who contracted an illness , as distinct from an injury , through their opposition to the dictatorship . Such a right was however created by a law of DATE which is not relevant to the present case .","The award of a pension is not automatic but has to be applied for through the Prefecture to ORG of ORG .","An objection against the decision of ORG can be brought before ORG of ORG ( Article CARDINAL of the NORP and Military Pensions Code ) .","An appeal lies within DATE to a Chamber of ORG ( Article CARDINAL ) . A further appeal , on points of law , lies within DATE ( Articles CARDINAL and CARDINAL ) to ORG , which has the power to refer the case back to the competent ORG ( LAW ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23431","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2002,"docname":"ARSLAN v. TURKEY","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in FAC ( GPE ) . He was represented before the ORG by PERSON , a lawyer practising in GPE .","On DATE the applicant was arrested and taken into police custody at the headquarters of the anti - terrorism branch of the GPE security police .","On DATE , after being interviewed by the public prosecutor at ORG , he was taken before a judge of that court who on DATE ordered his detention pending trial .","On DATE the public prosecutor committed the applicant for trial in ORG .","The criminal proceedings against the applicant are still pending .","The applicant \u2019s lawyer dated his application DATE and took it on DATE to the post office in PERSON ( central GPE ) , where post is collected regularly several times a day ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97175","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2010,"docname":"YESUFA v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , Mr Ayodeji Yesufa , is a NORP national who was born in DATE . He currently lives in GPE . He was represented before ORG , a firm of solicitors practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant and his brother arrived in GPE in DATE to join their father , who was resident there , and their sister , who was born in GPE and was a NORP citizen . When the applicant \u2019s father died in DATE his mother came to GPE to care for him . On DATE the applicant was granted Indefinite Leave to Remain as a dependant of his mother .","Shortly after the death of his father , the applicant began to mix with older children and he started to commit criminal offences . When he was DATE he was expelled from school . DATE he accumulated CARDINAL criminal convictions arising from CARDINAL sentencing hearings for offences including criminal damage , driving whilst uninsured , receiving stolen goods , possession of a Class B drug ( cannabis ) , common assault and burglary . The maximum sentence that he received was a DATE detention and training order .","On DATE the applicant was convicted of robbery . On DATE was sentenced to CARDINAL years\u2019 imprisonment . In CARDINAL separate incidents the applicant and a number of accomplices had stolen ORG and some alcoholic beverages from an off - licence and CARDINAL items of jewellery from a pawn brokers . During the second incident the applicant and his accomplices were armed with iron bars .","On DATE the Secretary of ORG for ORG wrote to the applicant asking him to submit reasons why he should not be deported following his conviction on DATE . His representations were considered but the Secretary of ORG concluded that his deportation would be conducive to the public good . That decision was issued to the applicant on DATE . He appealed to ORG ( \u201c ORG \u201d ) . On DATE the Immigration Judge dismissed the appeal , holding , inter alia , that the decision appealed against would not cause GPE to be in breach of the law or its obligations under LAW as the applicant did not enjoy family life in GPE and there were no insurmountable obstacles to his mother and brother returning to GPE with him . The ORG found no error of law in the NORP Judge \u2019s decision and refused to make an order for reconsideration . In an undated decision ORG ordered the ORG to reconsider the Immigration Judge \u2019s decision on the ground that the judge had erred in law in finding that the applicant \u2019s family could be expected to return to GPE with him . On reconsideration , the ORG accepted that the applicant had established both family and private life in GPE but held that any interference was not a disproportionate exercise of the Secretary of ORG \u2019s discretion to make a deportation order . On DATE the ORG refused to grant the applicant leave to appeal to ORG .","The applicant was released on licence on DATE . He subsequently was convicted of a further CARDINAL offences , including carrying a lock knife in a public place , breaching bail conditions , possession of a Class A drug and motoring offences .","On DATE the applicant was deported to GPE .","On DATE the applicant indicated for the first time that he had been in a DATE relationship with a NORP citizen , who had given birth to their child on DATE .","Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of LAW DATE provide for the making of Immigration Rules by the Secretary of ORG . Section CARDINAL(CARDINAL)(a ) of the same LAW ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .","Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(a ) of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against a decision to deport , inter alia , on the grounds that the decision is incompatible with the LAW and that it was not in accordance with ORG .","The Rules relating to the revocation of a deportation order are contained in paragraphs CARDINAL and CARDINAL of ORG CARDINAL ( as amended ) , supplemented by LAW ( \u201c IDIs \u201d ) . There is no specific period after which revocation will be appropriate although LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now \u201c spent \u201d under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation will not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-24040","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2004,"docname":"PODOLSKAYA v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government are represented by Mr P. Laptev , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant \u2019s husband , Mr Podolskiy , was presented a book Doctors of the CARDINALth Century ( \u201c ORG \u0432\u0435\u043a\u0430 \u201d ) published by the PERSON health protection department . On reading the book Mr Podolskiy found that his name had been omitted from a chronological list of directors of the GPE health protection department , although he had worked in that position from DATE . Also , in another place there was a mistake in his initials . Finally , the book contained a photograph of Mr Podolskiy with an unknown woman ; the caption of the photograph indicated that the persons on the photograph were \u201c Mr Podolskiy with his spouse \u201d .","On DATE Mr Podolskiy lodged a civil action against the authors and publishers of the book for the protection of his honour , dignity and professional reputation and compensation for non - pecuniary damage . He also sought an injunction to stop dissemination of the book , recall all printed copies and make necessary corrections . Mr Podolskiy submitted that the omissions in the publication damaged his professional reputation and also \u201c upset the peace \u201d of his family life . He explained that he had been married to his spouse for DATE and they both adhered to \u201c traditional moral values \u201d that included disapproval of divorce and re - marriages . He also stated that because of the publication he had to seek medical assistance in DATE .","On DATE ORG of PERSON gave its judgment . The court found that a mistake in Mr Podolskiy \u2019s initials was a typographical error . It established that Mr Podolskiy \u2019s name had been wrongly omitted from the chronological list and the caption of the picture was indeed incorrect . Nevertheless , the court concluded :","\u201c However , the court does not consider that [ this information ] is damaging , i.e. [ that it ] contains indications that the plaintiff has committed an offence under existing laws or has transgressed moral principles ...","Re - marriages are not prohibited by law , not condemned in society and can be entered into because of various reasons . \u201d","The court dismissed Mr Podolskiy \u2019s action in full . On DATE Mr ORG \u2019s lawyer appealed against the judgment . He argued , in particular , that the damage caused to the plaintiff \u2019s goodwill had to be assessed with regard to the plaintiff \u2019s individual subjective values , such as the conviction that remarriages were unacceptable .","On DATE Mr Podolskiy died of a heart attack .","On the applicant \u2019s request , she was recognised as Mr Podolskiy \u2019s legal successor in the civil proceedings . The court agreed that the applicant also had her own interest in pursuing the claim .","On DATE ORG upheld the judgment of DATE . The court confirmed that the information in the book was incorrect ; however , it did not consider that such information was damaging to Mr Podolskiy \u2019s or the applicant \u2019s dignity , honour or reputation .","LAW of GPE of DATE provides that a court may award compensation for non - pecuniary damage to an individual who sustained such damage as a result of acts that violated his personal non - pecuniary rights .","LAW of the Russian Federation provides that an individual may seize a court with a request for retraction of information damaging his or her honour , dignity or professional reputation unless the person who distributed such information proves its accuracy . In addition to retraction , the individual may also claim compensation for losses and non - pecuniary damage sustained as a result of distribution of such information ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61754","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":2004,"docname":"CASE OF MORSINK v. THE NETHERLANDS","importance":2,"conclusion":"Violation of Art. 5-1;Non-pecuniary damage - financial award","judges":"","text":["The applicant was born in DATE and is currently staying in a custodial clinic in the GPE .","DATE , the applicant was convicted CARDINAL times of theft , criminal damage , assault and aggravated assault . On DATE ORG ( arrondissementsrechtbank ) convicted the applicant of assault and assault occasioning grievous bodily harm committed in DATE . Having found that at the time of the commission of the offence the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree , ORG sentenced the applicant to DATE imprisonment in combination with an order for his confinement in a custodial clinic ( hereafter a \u201c ORG order \u201d - terbeschikkingstelling met bevel tot verpleging van overheidswege ) .","On DATE ORG ( gerechtshof ) upheld ORG judgment of DATE .","Although the applicant had initially filed an appeal in cassation with ORG ( PERSON ) against the judgment of DATE , he withdrew this appeal on CARDINAL DATE when , after having served his prison sentence , the ORG order took effect . However , he was not transferred to a custodial clinic but was held in preplacement detention in an ordinary remand centre ( PERSON bewaring ) .","On DATE , the applicant filed an appeal with ORG ( beroepscommissie ) of LAW for ORG ( Centrale PERSON ) against the apparently automatic prolongation by DATE of the DATE period of preplacement detention referred to in LAW on confinement to a custodial clinic of persons subject to a ORG order ( PERSON verpleging ter beschikking gestelden ; hereinafter referred to as \u201c the DATE LAW ) . He submitted that this DATE period had expired , that he had not received written notification from the Minister of ORG that his preplacement detention would be extended by DATE and , apparently , that the procedure for selection and placement in a custodial clinic in his case had not yet started .","DATE and DATE the applicant stayed in the Dr. ORG for the purpose of selection and subsequent placement in a custodial clinic .","On DATE the applicant filed a further appeal with ORG against the second apparently automatic prolongation of his preplacement detention by DATE . He requested ORG to suspend the second prolongation request .","On DATE the Minister of ORG filed written submissions with ORG in response to those filed by the applicant .","On DATE the President of ORG rejected the applicant 's request to suspend the further execution of the Minister 's decision of DATE to prolong the applicant 's preplacement detention in the remand centre by DATE . Taking into account the fact that the applicant , at the time of the decision , had spent DATE awaiting placement in a custodial clinic and that , according to the medical report of DATE , there was no apparent urgent medical need for his placement in a custodial clinic , the President found no pressing interest which required the suspension of the Minister 's decision .","On DATE the applicant filed an appeal against the third apparently automatic prolongation by DATE of his preplacement detention . On DATE the Minister informed the applicant that he could not yet be admitted to a custodial clinic and that his preplacement detention had been prolonged by a further period of DATE , i.e. from DATE to DATE .","On DATE , after a hearing held on DATE , ORG gave its decision on the applicant 's appeals against the first and second automatic prolongations of his preplacement detention . This decision , in so far as relevant , reads :","\u201c CARDINAL . The challenged decisions","' CARDINAL.CARDINAL NORP The Minister had not extended by CARDINAL DATE the period within which the appellant should have been placed in a custodial clinic for persons subject to a ORG order . Pursuant to LAW of the [ DATE ] Act ... , this failure is to be considered a decision to prolong this period .","NORP The Minister had not extended by DATE the period within which the appellant should have been placed in a custodial clinic for persons subject to a ORG order . Pursuant to LAW of the [ DATE ] Act ... , this failure is to be considered a decision to prolong this period . ...","The facts","... The appellant 's ORG order took effect on DATE . Since then , he has spent a transitory period in the PERSON remand centre awaiting placement in a custodial clinic .","By letter of CARDINAL DATE the Minister informed the appellant that he could not yet be placed in a custodial clinic and that the transitory period ( passantentermijn ) pending his placement in a custodial clinic had , for the time being , been ipso jure prolonged by DATE from CARDINAL DATE to DATE ... On DATE the appellant was heard by a penitentiary adviser .","By letter of CARDINAL DATE the Minister informed the appellant that he still could not be placed in a custodial clinic and that his preplacement detention pending his admission to a custodial clinic was to be prolonged further from DATE to CARDINAL DATE .","The appellant was admitted for selection purposes DATE and DATE to ORG in GPE . He was selected for the custodial clinic X in Y.","ORG has provided a medical statement dated DATE on the appellant 's mental condition , which has been supplemented by a report of DATE .","The parties ' submissions","... The [ applicant 's ] lawyer further considers , relying on the learned observation by a commentator on the [ Bizzotto v. GPE ] judgment of ORG DATE , ORG ( PERSON ) DATE , no . CARDINAL , that there is already a violation of LAW when the DATE delay is exceeded . ...","[ The Minister ] , as to the [ applicant 's ] reliance on LAW , points out that the ORG order serves in the first place for the protection of society and , in the second place , for the treatment of the person concerned . According to ORG case - law , the execution of a ORG order in a remand centre is not an unlawful deprivation of liberty . Where a reproach can be made of the fact that the ' treatment aspect ' is lacking , liability for damage arises . If an appeal is declared well - founded by ORG , the ' treatment aspect ' is also lacking and imputable as from the relevant expiry date .","The assessment","... CARDINAL.CARDINAL.CARDINAL The following must be first stated in assessing the appeal . On the basis of the history of the enactment of LAW ... , it must be assumed that it has been the intention of the legislature that a lack of capacity in the custodial clinics may in principle give the Minister reason to prolong by DATE , as often as necessary , DATE set out in the first paragraph of this provision within which a person subject to a ORG order must be placed in a custodial clinic . A decision by the Minister to prolong this period on grounds of lack of capacity does not , therefore , constitute an automatic ground for declaring the appeal well - founded . ...","CARDINAL.CARDINAL.CARDINAL ... in examining appeals filed by persons subject to a ORG order against decisions of the Minister to prolong the transitory period , ORG must at least have at its disposal information to be supplied by or on behalf of the Minister in relation to :","\u2013 the available capacity or the lack of capacity in custodial clinics at the time of taking the decision to prolong the transitory period , as well as a prognosis on this for DATE following the decision ;","\u2013 an indication of the average duration of transitory stays in remand centres of persons subject to a ORG order at the time when the decision to prolong the transitory period was taken ;","\u2013 the pro justitia report in relation to the mental condition of the person concerned who is subject to a ORG order , and a statement by a doctor on the question whether the person concerned , in view of his mental condition , is able to stay any longer , on a transitory basis , in a remand centre .","CARDINAL NORP The Minister is obliged , prior to the expiry of the transitory period referred to in LAW ... , to take a decision on the prolongation of this period and , in doing so , to comply with the procedural regulations set out in LAW ( a ) of the [ CARDINAL LAW ... \u2013 the obligation to hear \u2013 and LAW ... \u2013 the obligation to inform . These regulations are of essential importance for the legal position of the person subject to a ORG order and the Minister is therefore obliged to comply with these regulations in the decision - making process concerning the prolongation of the transitory period . ...","CARDINAL The argument based on LAW fails . The detention of a person subject to a ORG order in a remand centre is , after all , based on the judicial decision in which the ORG order has been imposed , whereas LAW ( b ) of the [ DATE ] Prisons Act ( Beginselenwet Gevangeniswezen ) provides that ' remand centres are intended for the accommodation of all others lawfully deprived of their liberty by a judicial decision ... for as long as their admission to another suitable place is not possible ' .","CARDINAL In so far as the appeal is directed against the prolongation of the transitory period for placement from CARDINAL DATE until DATE , ORG considers as follows :","CARDINAL.CARDINAL.CARDINAL It has appeared from the examination of the present case that the Minister did not , prior to the expiry of the delay for placement , take a decision to prolong that delay . Nor has the appellant been heard on this subject in a timely manner . The Minister 's reliance on the exception contained in LAW ( a ) of the [ CARDINAL LAW ... , as regards refraining from hearing requests of an urgent nature , fails . This provision is not applicable as in the present case there was no sudden event requiring an immediate measure and thus no opportunity to hear the person concerned .","ORG is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister 's [ implied ] decision to prolong the transitory period must be quashed on formal grounds .","CARDINAL ORG considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister 's conduct referred to in DATE . ORG fixes this compensation , having heard the view of the Minister , at MONEY ( NLG ) .","CARDINAL.CARDINAL.CARDINAL As the Minister , regarding the prolongation at issue , has not sent separate written notification to the appellant , but did inform the appellant , by written notification of DATE , of the further prolongation of the transitory period after he had been heard on that matter , ORG will not order the Minister to take a new decision in respect of the period referred to in CARDINAL . but will examine whether there are also material grounds for quashing the ... decision . Further reference is made to the considerations set out in CARDINAL .","CARDINAL In so far as the appeal is directed against the prolongation of the transitory period for placement from DATE until DATE , ORG considers as follows :","CARDINAL It has appeared from the examination of the present case that the Minister did not , prior to the expiry of the delay for placement , take a decision to prolong that delay . ORG is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister 's decision to prolong the transitory period must be quashed on this formal ground .","CARDINAL.CARDINAL.CARDINAL ORG considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister 's conduct referred to in CARDINAL . ORG fixes this compensation , having heard the view of the Minister , at NLG CARDINAL .","CARDINAL It has been sufficiently established from the examination of the present case that , as a result of a lack of capacity , the appellant has still not been placed in a custodial clinic . It has also been sufficiently established that the Minister , in his decision on this matter , has not deviated from his policy to determine the order of placement in a custodial clinic chronologically according to the date on which the ORG orders in respect of the appellant and other [ like ] persons ... took effect .","CARDINAL NORP The total duration of the appellant 's stay in a remand centre [ awaiting placement in a custodial clinic ] ... has not yet been so long that these decisions to prolong the transitory stay , balancing all relevant interests , must be regarded as unreasonable or inequitable .","CARDINAL It appears from the medical statement of ORG of DATE that the appellant 's mental condition at that moment was such that a further stay in the remand centre should be regarded as irresponsible . Although ORG considers it highly desirable that the Minister , as regards subsequent prolongation decisions , should submit on each occasion updated medical reports , it finds , in respect of the present appeals , that the medical report drawn up shortly before the second prolongation suffices . From the report on the selection examination in the period DATE and DATE ( falling partly within both of the prolongation periods challenged ) , it does not appear that the detention was unsuitable during the period of admission to the ORG .","CARDINAL ORG is of the opinion , having regard to the above considerations , that the decisions challenged are not in violation of the substance of the [ CARDINAL ] Act ... , and that the period within which the appellant should be placed in a custodial clinic had to be prolonged from CARDINAL DATE to DATE and from DATE to DATE .","CARDINAL As the decisions challenged must be quashed on formal grounds , ORG rules , pursuant to LAW ( b ) in conjunction with LAW of the [ DATE ] Act ... , that its decision in respect of the prolongations of the transitory period should replace those which were challenged . ... \u201d","No further appeal lay against this decision .","On DATE the Minister of ORG decided to prolong the applicant 's preplacement detention by a further period of DATE as from CARDINAL DATE . The applicant filed an appeal against this decision on CARDINAL DATE with ORG .","NORP The applicant was admitted to a custodial clinic on CARDINAL DATE .","On DATE , following a hearing held on DATE , ORG quashed the Minister 's decision to prolong the applicant 's preplacement detention from DATE to DATE on formal grounds , namely the Minister 's failure to comply with the procedural regulations under LAW ( a ) and LAW . Finding also that the total duration of the applicant 's preplacement detention could not be regarded as having been so long that , balancing all relevant interests , it should be considered unreasonable or inequitable , and having found no indication that the applicant 's mental condition required a priority placement in a custodial clinic , ORG did not find that the impugned decision should be quashed for being in material breach of LAW . It decided that the applicant 's preplacement detention should be prolonged until DATE . ORG decided to replace the Minister 's decision with its own decision to prolong the applicant 's preplacement from DATE to DATE . It awarded the applicant compensation in an amount of NLG CARDINAL in respect of the procedural shortcomings in the Minister 's decision .","In so far as the applicant had claimed that his preplacement detention was contrary to LAW held :","\u201c The argument based on LAW fails . After all , the preplacement detention in a remand centre of a person subject to a ORG order is based on the judicial decision in which the ORG order has been imposed whereas , according to LAW ( b ) of the DATE LAW , as in force until DATE , casu quo LAW ( f ) of the [ new DATE ] Prisons Act as in force as from DATE , persons subject to a ORG order can be held in a remand centre for as long as their admission to a place suitable for them is not possible . Under LAW , the duration of such a stay in a remand centre can , after DATE , be prolonged by periods of DATE . \u201d","On DATE , after a hearing held on DATE , ORG ruled on the applicant 's appeal of CARDINAL DATE . Having found it established that , contrary to LAW , the applicant 's view had not been heard prior to the taking of the decision , ORG considered that , on this procedural ground alone , the impugned decision had to be quashed . In addition , it found that , also on material grounds , the decision of DATE had to be quashed as at the expiry of that prolongation decision the applicant would have spent DATE in preplacement detention . A delay of DATE , balancing all relevant interests , should be regarded as unreasonable and inequitable . It awarded the applicant compensation of NLG CARDINAL on account of the procedural shortcomings and NLG CARDINAL for DATE he had spent in preplacement detention on the basis of the decision of CARDINAL DATE .","On DATE ORG ( arrondissementsrechtbank ) extended the applicant 's ORG order by DATE . An appeal by the applicant against this decision was rejected by ORG on DATE . No further appeal lay against this decision .","The relevant provisions of LAW ( PERSON ) , as in force at the relevant time , read as follows :","\u201c LAW","A person sentenced to imprisonment who , on grounds of the inadequate development or pathological disturbance of his mental faculties , is eligible for this , may be placed in a judicial institution ( justiti\u00eble inrichting ) for the treatment ( verpleging ) of persons subject to a ORG order ; in that case Articles CARDINALc , DATE and DATE shall apply by analogy . ...","Article CARDINAL","The judge may order that a person who , owing to the inadequate development or pathological disturbance of his mental faculties , can not be held responsible for an offence , be committed to a psychiatric hospital ( plaatsing in een psychiatrisch ziekenhuis ) for DATE , but only if he represents a danger to himself , to others , or to the general safety of persons or property . ...","Article PERSON","The judge may impose a ORG order ( terbeschikkingstelling ) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if :","CARDINAL the offence he has committed is one which , according to its statutory definition , renders offenders liable to a term of imprisonment of DATE or more , or if the offence is defined in Articles CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL , ORG or CARDINAL of LAW , LAW ( ORG ) , LAW ( PERSON ) , or LAW , under CARDINAL , of LAW , and","CARDINAL the said measure is necessary in the interests of the safety of others or the general safety of persons or property .","In applying paragraph CARDINAL , the judge may refrain from imposing a penalty , even if he finds that the suspect may be held criminally responsible for the offence .","In making an order referred to in paragraph CARDINAL , the judge shall take account of the statements contained in the reports made concerning the suspect 's personality , and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences .","Paragraph CARDINAL of this Article and LAW may be applied in conjunction with regard to the same offence .","Article CARDINALb","The judge may order that a person who is subject to a ORG order be confined to a custodial clinic ( verpleging van overheidswege ) if this is necessary in the interests of the safety of others or the general safety of persons or property . ...","Article CARDINALc","Treatment shall be provided in custodial clinics for persons subject to ORG orders in accordance with rules to be laid down by ORG ( algemene maatregel van bestuur ) .","The Minister of ORG shall ensure that persons subject to ORG orders who are confined to a custodial clinic receive the necessary treatment . In respect of specific patients , the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property .","The rules to be laid down pursuant to paragraph CARDINAL shall make provision for persons subject to ORG orders to appeal against decisions which restrict their freedom of movement or correspondence , or their right to receive visitors .","Article CARDINALd","Persons subject to ORG orders may be confined to the following institutions , on condition that the institutions have been designated for this purpose by the Minister of ORG :","a. private institutions managed by legal persons established in the GPE ;","b. State institutions .","Treatment shall preferably take place in a private institution . ...","Article CARDINALe","The costs of the confinement of persons subject to ORG orders shall be borne by the ORG in so far as no other provision is made for them by or pursuant to any ORG . Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in ORG institutions . \u201d","A ORG order with confinement to a custodial clinic is not intended to have a punitive effect , but to protect society from any risk posed by the person concerned . It is initially imposed for DATE and may be prolonged by a judge for further periods of DATE where the safety of others or the general safety of persons or property so require ( Article FAC of LAW ) . The total duration of a ORG order may not exceed DATE , unless it has been imposed on the ground of an offence directed against , or constituting a danger to , the physical integrity of CARDINAL or more persons . In the latter case , there is in principle no restriction on the number of extensions that can be granted by a judge ( Article PERSON of LAW ) .","The provisions relating to the proceedings on the extension of a ORG order are set out in ORG CARDINALo \u2013 CARDINALx of LAW PERSON ) . Article CARDINALo \u00a7 CARDINAL provides that the public prosecutor 's office ( openbaar ministerie ) may submit a request ( vordering ) for the prolongation of a ORG order DATE and DATE before the date on which the order is due to expire . The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment ( LAW ORG ) . The court competent to decide on such a request is ORG that tried the person concerned at first instance for the crime that gave rise to the ORG order ( Article CARDINALp ) .","DATE LAW ( Beginselenwet gevangeniswezen ) , as in force until DATE , provided :","\u201c Remand centres are intended :","a. for the accommodation of those who must undergo punishment by imprisonment or military detention ;","b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision , court order or public authority , in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible . \u201d","On DATE , a new Prisons Act ( Penitentiaire Beginselenwet ) entered into force , replacing the CARDINAL Act . Article CARDINAL \u00a7 CARDINAL of LAW , in so far as relevant , reads :","\u201c The following may be held in remand centres : ...","f. persons subject to a ORG order with confinement to a custodial clinic within the meaning of Articles CARDINALb or CARDINAL c of LAW for as long as their admission to a suitable clinic is not possible . \u201d","On DATE Articles CARDINAL\u2013CARDINAL and CARDINAL\u2013CARDINAL of the Act on confinement to a custodial clinic of persons subject to a ORG order ( \u201c the DATE LAW ) entered into force . The custodial clinics , of which there were CARDINAL at the material time , are top - security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves . The treatment provided in these clinics is aimed at reducing this danger and preventing recidivism .","The CARDINAL Act distinguishes between care ( verpleging ) and treatment ( behandeling ) . The provision of care in a custodial clinic is aimed at the protection of society against the risks posed by persons subject to a ORG order by keeping them confined in a secure institution . The treatment provided in a custodial clinic is geared to individual disorders and personalities . It is aimed at helping persons subject to a ORG order to gain insight into and control over their disorders , to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society .","Pursuant to LAW , which provision had already entered into force on DATE , a person subject to a ORG order must be admitted to a custodial clinic DATE after the ORG order has taken effect . This period can be extended by the Minister of ORG by further periods of DATE each time if placement proves impossible . A failure to give an explicit prolongation decision is considered to be a decision to prolong the preplacement detention . In such a situation , the preplacement detention is extended automatically . Consequently , a failure to give a prolongation decision can never result in the release of the person concerned , who may challenge such an implicit decision by taking appeal proceedings before ORG .","DATE CARDINAL LAW provides that the Minister of ORG must decide in which specific custodial clinic the person concerned is to be placed , and that such a decision should \u2013 at least \u2013 take into account the requirements of the protection of society against the dangerousness of the person subject to a ORG order , the safety of persons other than the detainee or the general safety of persons or property , and the requirements of the treatment of the person concerned in view of the nature of the established inadequate development or pathological disturbance of his or her mental faculties .","The decision on the selection of the most appropriate custodial clinic DATE given the differences between the various institutions as regards their security levels , patient population ( gender , psychiatric diagnosis of the patients and their ability to function in a group setting , etc . ) , methods of treatment and the average stay of patients \u2013 is in most cases preceded by a DATE period of psychiatric observation in the Dr F.S. Meijers Institute , an institution specialised in this field .","In ORG report no . CARDINAL\/CARDINAL of DATE , which concerned the situation prior to the entry into force of LAW , it was stated that , in principle , taking into account the DATE observation period and a margin of DATE for the administrative processing of the selection application and the admission procedure , a delay of DATE between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable . Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded , the ORG further held that an additional delay of no longer than DATE at the very most might still be acceptable . However , given the responsibility of the Minister of Justice for adequate capacity planning , the ORG did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of preplacement detention unavoidable .","Since DATE a simplified system has been used for the selection and placement of persons subject to a ORG order . This has resulted in a reduction of the delay in effecting admission to a custodial clinic . In DATE this delay was , on average , DATE .","In the report of DATE of ORG for the Prevention of Torture and Inhuman Treatment ( the \u201c CPT \u201d ) on its visit to the GPE from DATE to CARDINAL DATE ( ORG ( CARDINAL ) , it is stated :","\u201c CARDINAL . ... the delegation also met ( for instance , in FAC , ORG and ORG ) some male and female prisoners in respect of whom treatment measures ( eg . a ORG placement ) had been decided , in some cases a long time before , but who had not yet been transferred because of a lack of places .","The ORG would like to receive the NORP authorities ' comments on this subject . \u201d","In their response to the ORG report ( ORG ( CARDINAL)CARDINAL ) , ORG stated :","\u201c The increase in the number of persons under a ORG order has placed the existing capacity under severe strain , causing a rise in the number of prisoners awaiting transfer to a ORG clinic . ORG shares the ORG 's view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time . The situation has changed , however , since the delegation 's visit . A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments , and outpatient departments for part - time treatment have been added to some ORG , widening the prospect for earlier probationary leave . These measures will reduce waiting times considerably . \u201d","NORP In the ORG report of CARDINAL DATE on its second visit to the GPE from DATE ( ORG ( CARDINAL ) , it is stated :","\u201c CARDINAL . Since DATE , the NORP authorities have been confronted by a significant increase in ORG orders , a problem which has been exacerbated by the prolonged stays DATE for DATE of CARDINAL persons within the ORG system . As a result , the number of persons waiting in prisons for admission to ORG establishments rose from CARDINAL in DATE to CARDINAL at the time of the ORG 's second periodic visit . In response to this situation , the NORP authorities have decided to increase the number of ORG places , in order to reach a capacity of CARDINAL in DATE . However , the ORG notes that , in a letter sent to ORG of ORG on DATE , ... the Minister of ORG indicated that the shortage of ORG places in DATE is estimated at CARDINAL .","Concern has been expressed in the GPE about the position of inmates waiting in prison for admission to a ORG institution . During this waiting period , currently averaging DATE , the persons concerned do not receive the treatment they require , a situation which , it has been pointed out , is likely to provoke feelings of anxiety , self - doubt and anger in the persons concerned . Further , as they are considered dangerous , those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held . \u201d","In their response to the ORG report ( ORG ( CARDINAL)CARDINAL ) , ORG informed the ORG of the measures taken by the NORP authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission . According to ORG , efforts were being made to improve \/ accelerate the outflow of ORG patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of ORG orders was expected both to increase the outflow of ORG patients as well as to reduce the number of patients entering custodial clinics .","The Government further informed the ORG that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem , but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons . In these experiments , therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual ORG treatment and to reduce the growing hostility felt by these people towards the justice system . According to the Government , the initial results of these experiments were encouraging in that the persons involved \u2013 therapists , prison staff and inmates DATE had all responded positively , and there was a growing demand among prisoners awaiting admission to a ORG institution for this kind of support ( pp . DATE ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59363","languageisocode":"ENG","respondent":"LUX","branch":"CHAMBER","date":2001,"docname":"CASE OF THOMA v. LUXEMBOURG","importance":1,"conclusion":"Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award","judges":"Christos Rozakis","text":["On DATE PERSON , a GPE DATE newspaper published in NORP , printed an article by journalist PERSON on various reafforestation techniques that had been used after the storms in DATE that devastated part of the GPE woodlands . The article appeared under the title \u201c GPE ... das ganze noch einmal \u201d ( \u201c GPE ... all over again \u201d ) and included the following :","[ Translation from a NORP translation provided by the applicant ]","\u201c The cynicism really knows no limits , since it should not be forgotten that these forest gardeners cut down trees , buy , plant , \u2018 treat\u2019 with public funds , to the tune of MONEY . ( Ministers , lend an ear ! )","What does all this hide ? Of course , there will be a full denial by all concerned , but the conclusion to be drawn after various discussions with people in the industry should be this : It is better to replant CARDINAL or CARDINAL times with plants from a seller who gives a generous percentage than once with plants from a firm that has the nerve to refuse to pay bribes . ( Comment from someone familiar with the system : \u2018 I know of CARDINAL person who is incorruptible.\u2019 He gave the name of the forest warden from \u2018 PERSON . )","\u2018 ORG , it \u2019s a case of the tabloid press yet again publishing \u2018 unsubstantiated monstrosities\u2019 ; \u2018 ORG , there is no truth in any of it , but the owners of the woodlands , whether the ORG , municipalities or private individuals , should be aware of CARDINAL thing : they are the ones who must pay for the repeated reafforestation of dubious benefit ; and they the ones who should demand that the political authorities remove the dung from Augeas \u2019s FAC , instead of continually trying , with mixed success , to muzzle those who have the nerve to put the public interest before the private interests of a few \u2018 fleas in the scrotum of ORG ( dixit Degenhard ) . \u201d","The applicant was at the time a journalist on a national radio station , RTL CARDINAL , for whom he presented a DATE programme in PERSON entitled \u201c Oekomagazin \u201d dealing with nature and the environment . He had raised the subject of the problems connected with reafforestation after the DATE storms on a number of occasions on the programme and had alluded , along with other GPE publications , to a breakdown in the system .","The applicant had chosen reafforestation as the subject matter for his \u201c Oekomagazin \u201d programme of CARDINAL DATE . He began the programme with an introduction in which he reminded listeners that he had spoken DATE about \u201c the temptation for ORG people to take advantage when an opportunity present[ed ] itself \u201d and had referred to \u201c a series of telephone calls from people all over the country who [ had ] interesting tales to tell \u201d . He went on to say \u201c in any event , CARDINAL thing is clear : the woodland management chapter is much thornier than people might think \u201d . He also reported , indicating that he was giving an example , that a person who had had work done in woodland he owned by a private contractor \u201c no longer knew which way to turn \u201d after receiving a bill for the work from ORG responsible for the sector rather than the private contractor . After that introduction , he quoted certain passages from the aforementioned article , which he said was \u201c strongly worded \u201d . He said , inter alia :","[ Translation from a NORP translation provided by the applicant ]","\u201c But there is money to be made at the sawmill as well as in wood . The same applies to the plantations , because they can be counted in CARDINAL . In a CARDINAL - page article in DATE \u2019s edition of LOC , PERSON does not mince his words in denouncing various plantation practices used by ORG and he makes no concessions . The journalist writes , and I quote : \u2018 CARDINAL already requires a certain dose of cynicism not to forget that these gardeners of the forest do not clear out , buy , plant , and ( in inverted commas ) treat the publicly owned woodlands with their own money , but with public funds to the tune of millions.\u2019 PERSON then provides the proof ( fazit ) of the proposition : \u2018 It is better to replant CARDINAL or CARDINAL times with plants from a seller who pays a percentage than once with plants from a firm that has the nerve to refuse to pay a percentage.\u2019 The LOC journalist then cites an authoritative source from the industry who is quoted as saying : \u2018 I know of CARDINAL person who is incorruptible.\u2019 The name of the forest warden from ORG is given in that connection . \u2018 The owners of our forests , whether the ORG , municipalities or private individuals should be aware of CARDINAL fact : they are the ones who must pay for CARDINAL questionable reafforestation projects\u2019 , to quote again from the LOC journalist , \u2018 It is they who ought to demand that the political authorities clean out Augeas \u2019s FAC once and for all\u2019 ... \u201d","NORP The applicant explained that with that \u201c strongly worded \u201d article , PERSON had implicitly referred to the provision in the LAW relating to intermeddling , which prohibits civil servants working for the ORG or the municipalities to use their official status to derive personal gain . He added that people working for ORG \u201c have a reasonable salary and can under no circumstances claim a hand - out and get rich at the expense of public - owned woodlands or of private owners , buyers of wood or tree nurseries \u201d .","He then proceeded with the theme of the programme and put questions to PERSON , a ORG engineer , before asking NORP , a private woodlands owner :","[ Translation from a NORP translation provided by the applicant ]","\u201c In a strongly worded article by journalist PERSON TIME , it is said : \u2018 It is better to replant CARDINAL or CARDINAL times with plants from a seller who is generous with bribes than once with plants from a firm that has the nerve to refuse to pay bribes.\u2019 Mr NORP , what do you think of that strongly worded phrase . You also work a little in this branch : what is your experience in this sphere ? Is what PERSON says true ? \u201d","After NORP had expressed his opinion on that point , the applicant questioned him further on the subject of the importation of plants , a matter he had previously raised with PERSON , the engineer . He asked NORP the following questions :","[ Translation from a NORP translation provided by the applicant ]","\u201c And what is your opinion on the delivery of plants from abroad , possibly through GPE traders ? Is it possible that the plants , which come from GPE or GPE , for example , are delivered without being checked ? \u201d","After NORP \u2019s reply , the applicant ended his programme with a long debate on the theme of public tenders .","In a press release on DATE , ORG announced its intention to lodge a complaint for defamation against the applicant . However , it did not do so .","DATE and DATE CARDINAL forest wardens and CARDINAL forestry engineers brought civil actions in damages against the applicant alleging that he had damaged their reputation . They each claimed MONEY ( ORG ) in compensation complaining that he had quoted accusations from the article published in the CARDINAL DATE edition of LOC without in any way toning them down , correcting them or commenting on them \u201c the slightest bit critically \u201d , and that he had passed them off as his own . He had thus suggested publicly that all forestry wardens in GPE ( of whom there were CARDINAL at the time ) and all GPE forestry engineers were , with CARDINAL exception , corruptible and corrupt . In their writs , they quoted from a GPE judgment of DATE , in which it was held as follows :","\u201c By establishing freedom of the press , the LAW does not impose any restriction on the fundamental principle contained in Articles DATE and CARDINAL of LAW . Freedom of the press is not unlimited and ends where it infringes the legitimate rights and interests of others . Journalists do not enjoy any immunity exempting them from their obligation to exercise care towards all individuals and even the ORG and its institutions , and any breach , albeit slight , of that obligation is unlawful under the aforementioned ORG of ORG which oblige anyone who , through his wrongdoing , or negligent act or omission causes damage to another , to make reparation .","Journalists may be held severally liable for any breach of their obligation to be truthful and objective \u201d ( judgment no . CARDINAL of CARDINAL DATE , PERSON .","The CARDINAL statements of claim were couched in more or less identical terms .","The applicant requested that the various actions against him be joined and declared inadmissible on the ground that he had merely quoted statements made by a clearly identified person . He offered to adduce witness evidence to show that his investigations revealed numerous offences in the sphere concerned . He also lodged a counterclaim against each of the claimants for payment of ORG CARDINAL as an allowance for preparing the case for trial and ORG CARDINAL for abuse of process and vexatious proceedings ; he also claimed costs and expenses .","NORP ORG examined the CARDINAL cases at a single hearing and handed down QUANTITY almost identical judgments on DATE . It awarded each of the claimants MONEY in nominal damages , dismissed the counterclaims and ordered the applicant to pay the costs and expenses .","After examining the text of the aforementioned passage from the LOC article and the aforementioned quotations from the transcript of the applicant \u2019s radio programme , ORG held , inter alia :","\u201c The journalist , PERSON , seized upon the article by PERSON and , in particular , the impugned passage , to persuade the public that the legislation in force was not being complied with and to adopt PERSON \u2018 fazit\u2019 conclusion .","ORG considers that the use of the words \u2018 GPE , Forstverwaltung\u2019 to restrict the circle of people concerned by the programme , the use of PERSON \u2019s conclusion to support the assertions , citing a person who was supposedly familiar with that circle ( PERSON aus dem Milieu ) , the assertion that that person knew CARDINAL person DATE from that background DATE who was incorruptible , meant that those against whom the accusation was made are sufficiently identifiable .","In view of his position ( as a ORG employee ) , the claimant has sufficiently established in law that ORG remarks were directed against him .","ORG must analyse whether by so acting the defendant has committed an act that falls to be dealt with under the provisions of ORG and CARDINAL of LAW .","It is true that the press has the right , and even the duty , to criticise abuses that come to light in public life ( CSJ DATE ORG , p. CARDINAL ) .","It is incumbent on professional journalists to publish breaking news , news items and , generally , anything which seems to them to present an interest as soon as they can ( GPE ORG , DATE , no . CARDINAL\/CARDINAL ) . The press must preserve its right to criticise the social activity of individuals , that is to say all those whose dealings directly concern the community . The press is entitled to say what it thinks about their activities , provided that it does not attack their reputation and provided that it acts in good faith ( GPE ORG , DATE , ORG liaison de la conf\u00e9rence PERSON no . CARDINAL , p. CARDINAL ) .","PERSON was , accordingly , perfectly entitled to investigate the problems posed by the reafforestation of our woodlands after the storms and to denounce and to criticise practices which he considered to be inconsistent with the laws and regulations .","Indeed , through a series of articles in the press , the GPE journalists have not missed the opportunity of drawing the attention of the public and the public authorities to matters which they believe it was their duty to criticise .","While it is true that absolute objectivity can not be required of journalists , in view of their relatively unreliable means of investigation , they nonetheless have an obligation to act on information that has been verified to the extent the means available to them reasonably permit . The law requires journalists to act in good faith and does not seek to give immunity to persons who through spite , malice or foolishness seek by publication to discredit others . A mala fide intention may appear when a journalist had reasons to doubt the truth of the facts or his ability to produce evidence establishing them ( NORP . GPE , DATE PERSON ) .","In the instant case , it was for PERSON to prove that he had obtained sufficient evidence to enable him to adopt ORG \u2019s allegations and to assert that the claimant had been guilty of corruption in connection with the reafforestation of the woodlands . \u201d","After rejecting an offer by the applicant to adduce evidence as being too vague , ORG concluded :","\u201c PERSON has , accordingly , not established that he has sufficient evidence to show that the claimant was guilty of corruption in connection with the reafforestation of the woodlands .","It is not for this ORG to order or complete investigative measures of its own motion in order to assist the journalist to carry out ex post facto the investigations and research which he should have performed before publishing the impugned article .","By giving the impression without evidence and without qualification that all ORG officials concerned by the reafforestation work were , with but CARDINAL exception , corruptible , PERSON has overstepped the boundaries of his right to impart bona fide information and has , accordingly , committed a tort . \u201d","The applicant appealed against all CARDINAL judgments . In his appeal submissions , he requested the joinder of the CARDINAL cases brought by the forestry wardens and the QUANTITY actions brought by the forestry engineers . His opponents contested that request . The applicant did not renew the offer to adduce evidence which he had made at first instance .","ORG of the Grand Duchy of GPE ( Seventh ORG ) gave its decision in almost identical judgments delivered on CARDINAL DATE . It acceded to the applicant \u2019s request for joinder and upheld the impugned judgments . In support of its decision to award each of the claimants nominal damages of MONEY , ORG added the following grounds to those that had been relied on by ORG :","\u201c By attributing the phrases \u2018 PERSON unbestechlich ist . PERSON ORG - F\u00f6rsters\u2019 not to a particular individual , but to a \u2018 berufene PERSON , that is to a person in the know , someone from the background who is aware of confidential matters and can be relied upon not to provide false information , the text of ORG \u2019s article quoted by the appellant suggests to the public and leads it to believe that , apart from the forest warden responsible for ORG there was not CARDINAL other ORG official , whether ordinary forest wardens or even members of its management , who was incorruptible .","It follows that , contrary to the appellant \u2019s assertion , the text quoted by him qualifies as corruptible \u2018 a defined group of identified people\u2019 , since he suggests that all ORG officials are in that position and together they constitute a defined group of identified persons .","It follows from the foregoing that the claimants at first instance and respondents to this appeal \u2013 on whom the burden of proving the merits of their claims lies \u2013 have , in view of their position ( as ORG staff ) , established that PERSON text quoted by the applicant was directed at them .","Further , the applicant fails in his attempts to deny liability by arguing that his remarks are no more than a quotation from the impugned article by PERSON .","A journalist can not escape liability by arguing that the impugned article which he has published is merely a reproduction of one already published by someone else since , by choosing to reproduce the article , he appropriates the allegation contained in the reproduced text and thus incurs personal liability .","That is the position and a journalist who merely quotes from an article that has already appeared will only escape liability if he formally distances himself from the article and its content and if in terms of newsworthiness an interest exists in communicating the content of the article that has already been published .","In the instant case it is quite clear that in repeating in the \u2018 ORG programme of CARDINAL DATE in LOC the impugned passage from PERSON article in DATE edition of LOC , the appellant did not distance himself from the quoted text and , in particular , the aforementioned allegation which it contains .","It follows that even supposing that the appellant had merely quoted the impugned passage from PERSON article , that quotation nonetheless rendered him liable .","Finally , ORG holds below that the appellant has failed to establish the merits of the allegation of corruption contained in the impugned passage in PERSON article which he quoted from without formally distancing himself from it . Under these circumstances , that allegation establishes by itself that when in the CARDINAL DATE edition of \u2018 ORG the appellant repeated the passage from ORG \u2019s article containing that allegation unreservedly , there was , contrary to what he asserts , no \u2018 lack of malice\u2019 on his part ...","It follows that by leading public opinion to believe without evidence that the entire staff of ORG from forest wardens to the director were corruptible , the only honest employee being the forest warden from ORG , the appellant has not complied with his obligation to impart bona fide information and has consequently committed a tort rendering him liable under ORG and DATE of LAW ... \u201d","The applicant appealed to ORG , which dismissed his appeals in CARDINAL judgments of DATE . ORG said , inter alia , that ORG and DATE of the Civil Code established a system of reparation and that , subject to the last sentence of LAW and of section CARDINAL(CARDINAL ) of LAW DATE on the ORG , the scope of those ORG in press cases was unlimited since , as in every other sphere , the courts would take account of the special nature of the activity of journalists in deciding whether a tort had been committed . It added that the courts below had justified their decision in law for finding a tort .","The relevant provisions of LAW concerning liability under the general law read as follows :","\u201c Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . \u201d","\u201c Everyone is liable for the damage which they have caused not only through their acts , but also through their negligent omissions or acts . \u201d","For the purposes of Articles CARDINAL and CARDINAL the tort may result from a violation of a rule of criminal law . In that eventuality , the victim may either bring a civil action , or institute or be joined to criminal proceedings as a civil party .","The offence of damaging a person \u2019s reputation is laid down by LAW of LAW , which provides :","\u201c Anyone who , in the circumstances set out hereafter , maliciously accuses another of something that is liable to damage that person \u2019s reputation or expose him to public scorn shall be guilty of calumny if , in cases where it is possible by law to plead a defence of justification , no admissible evidence supporting the accusation is adduced . He shall be guilty of defamation if the law does not allow of a defence of justification . \u201d","Section CARDINAL of the PERSON on the ORG provides :","\u201c Everyone who shall have taken part , as a principal , co - offender or accomplice in press offences shall incur criminal and civil liability .","However , if the principal is of known identity , a Luxemburger and domiciled in the Grand Duchy , the printer , editor and any accomplice shall be immune from suit . \u201d","That provision introduced the notion of \u201c indirect liability \u201d in proceedings against the press . According to legal commentators , the system obviates the need for the author \u2019s work to be subjected to prior censorship by the editor , printer or distributor . It is not a question of liability being diluted but of its attaching to CARDINAL person , that person being the author , if his identity is known and he is domiciled in GPE , or , failing that , the editor , printer or distributor .","Section CARDINAL of the statute provides :","\u201c No one shall be entitled to invoke by way of excuse or justification the fact that the writings , printed material , pictures or emblems are merely a reproduction of materials published in the Grand Duchy or abroad . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23721","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2004,"docname":"ESKELINEN v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , a lawyer by profession , is a NORP national who was born in DATE and lives in H\u00e4meenlinna . He is not represented before the ORG . The respondent Government are represented by their Agent , PERSON , Director in ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was appointed as liquidator in the winding up of a company . He acted with another lawyer who embezzled the company \u2019s and other ORG funds .","In criminal proceedings , CARDINAL companies which were being wound - up claimed compensation for losses caused by the embezzlement . The embezzler was convicted and ordered to pay compensation for the damage he had caused , but was found to be insolvent .","The companies commenced actions for compensation against the law office for which the convicted lawyer had worked , against his fellow partners and against those lawyers who had acted as co - liquidators with him as well as against their law offices .","On DATE the company in respect of which the applicant had been appointed as liquidator , commenced an action against him , among others , before ORG of PERSON ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) . The summons was served upon the applicant on DATE . He filed his submissions on DATE .","Due to the substantial connections between the actions , ORG decided to deal with them jointly . Negotiations for a friendly settlement between the parties were held . At least as far as the applicant was concerned , they were fruitless .","The companies submitted additional written observations on DATE . At the same time , they commenced an additional action .","ORG held CARDINAL preparatory hearings , on CARDINAL and DATE and DATE . The main hearings were held on CARDINAL and DATE . ORG dismissed the action against the applicant on DATE .","The companies , among others , appealed . At the NORP request , the time - limit for submission of the letters of appeal was extended . The time - limit for submission of the observations in reply was accordingly automatically extended until DATE .","On DATE ORG ( hovioikeus , hovr\u00e4tten ) upheld without an oral hearing ORG judgment as far as the applicant was concerned .","The ORG applications for leave to appeal were submitted on DATE .","On DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) granted leave to appeal and invited the applicant , amongst others , to submit observations in reply by DATE .","The case was examined by ORG during CARDINAL sessions , on DATE , DATE , DATE and DATE and CARDINAL and DATE .","On DATE ORG annulled ORG judgment and found in favour of the companies , ordering the applicant and others jointly to pay damages , amounting to ORG CARDINAL ( ORG CARDINAL ) with interest as from DATE , and legal expenses .","The applicant \u2019s insurance covered ORG CARDINAL ( EUR CARDINAL ) and he paid FIM CARDINAL ( ORG CARDINAL ) from his own funds .","Under LAW , LAW CARDINAL of the Judicial Procedure Code ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ) , as in force until DATE , a court was to adjourn criminal proceedings on request , for example if a party wished to adduce further evidence and the court was satisfied there was a good reason for the adjournment . The court could not adjourn criminal proceedings of its own motion save for special reasons . Where the defendant in criminal proceedings was in detention , under a travel - ban or disqualified from holding office , a case could not be adjourned for DATE save for carrying out a mental examination of the defendant . If a party considered that the proceedings had been unjustifiably delayed , a procedural complaint ( kantelu , klagan ) could be lodged with the court of appeal within DATE from the date of adjournment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58802","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2000,"docname":"CASE OF GNAHORE v. FRANCE","importance":1,"conclusion":"No violation of Art. 6-1;No violation of Art. 8;Preliminary objection rejected (non-exhaustion of domestic remedies)","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives at GPE ( GPE ) . He is the father of CARDINAL children whom he had been bringing up alone : PERSON and PERSON . , who were born in GPE in DATE and DATE respectively , and C. , who was born in GPE in DATE .","On DATE the applicant took C. to the ophthalmic unit of ORG in GPE . The child , who presented bruising to each eye , a cut to the right forearm , abrasions to the abdomen and healed scar tissue to the face , was admitted to the paediatric ward .","The ORG public prosecutor 's office was informed and a police investigation set in motion . On DATE the public prosecutor made an order placing C. in the care of the child - welfare service ( \u201c the ORG \u201d ) of the Rh\u00f4ne d\u00e9partement . A doctor examined the child on DATE and concluded that his tegumentary lesions could have been caused by abuse .","On DATE the investigating judge at the FAC tribunal de grande instance charged the applicant with assault with intent by an ascendant on a minor aged DATE and placed him under court supervision .","On DATE the children 's judge at the PERSON tribunal de grande instance made an order under LAW seq . of LAW for C. 's temporary placement with the ORG and issued an injunction against the applicant banning him from \u201c all contact before the hearing of CARDINAL DATE \u201d on the ground that \u201c ... [ C. ] [ had ] been admitted to hospital and that he [ was ] at risk in the family home ... \u201d .","By a judgment of CARDINAL DATE the children 's judge placed C. with the ORG for a period of DATE . He put the applicant 's CARDINAL other sons in the care of the same authority ; PERSON was to remain in care until he reached his majority and PERSON . for DATE . The reasons given in the judgment were : \u201c ... the domestic situation is difficult and the children are in danger ; ... their removal from home is necessary to enable relations with the father to become less conflictual and to make the children feel more secure by helping them to resolve their personal difficulties \u201d .","On an appeal by the applicant , ORG of ORG upheld all the provisions of the judgment of the court below in a decision of DATE , on the following grounds :","\u201c ... Mr GPE is bringing up his CARDINAL sons in circumstances made difficult in particular by the fact that he works as a night - watchman and the CARDINAL mothers are absent : CARDINAL live in LOC , while his relations with the third , PERSON . 's mother , are very intermittent .","... on DATE Mr GPE applied for educative assistance measures in respect of his son , I. , who had run away from home and was beyond his control ; ... in an interview with the caseworkers on DATE , the father came across as someone who was inflexible , incapable of understanding his son 's sufferings and with whom it would be impossible to implement any educative measures ; ORG has had to remain in care ...","... PERSON . has been virtually abandoned and no longer tolerates the tension in his relations with his father or his father 's authoritarianism . ... it appears that he is unable to obtain from his father a response to his emotional and educative needs . ... accordingly , since the conditions in which the minor is brought up are highly unsatisfactory , the order for PERSON . 's placement will stand . ...","... on both occasions [ C. ] was admitted to hospital DATE on CARDINAL DATE with a cranial traumatism and bruising to both eyelids and on DATE with bilateral periorbital bruising \u2013 the public prosecutor 's office was advised by the FAC civil hospital authorities of the suspect origin of the injuries .","... whatever the origin of the injuries , it does not appear that Mr GPE offers the material and educative guarantees necessary to ensure the child 's health and safety . ... \u201d","On DATE Professor NORP , a doctor at ORG , examined C. and found that he presented post - traumatic ecchymosis caused by DATE in the home where he had been placed . On DATE he said in a letter to the investigating judge that it was \u201c possible that the child presented a propensity to major haematomic reaction to moderate trauma and [ that it was ] quite possible that that propensity had ... led to the degree of trauma being over - estimated during the child 's CARDINAL stays in hospital that had resulted in the public prosecutor 's office being informed . ... \u201d . A copy of that letter was sent to the children 's judge . He also wrote to the public prosecutor 's office .","By an order of CARDINAL DATE the children 's judge suspended the applicant 's rights to contact until DATE on the ground that \u201c [ the applicant 's ] visits invariably provoke[d ] violent incidents , [ C. ] [ was ] disturbed and insecure afterwards , a carer had been subjected to violence by the applicant \u201d and \u201c arrangements were being made for [ the child ] to be placed with foster parents \u201d . He further ordered that the name and address of C. 's foster parents were not to be communicated to the father and contact was only to be arranged after DATE , \u201c in a neutral location to be determined by the ORG , and provided that there [ was ] no risk of violence and that Mr PERSON ] with the timetable and the conditions imposed \u201d .","In a judgment of DATE the children 's judge extended the period of C. 's placement with the ORG for a year starting on DATE . On an appeal by the applicant , ORG of ORG upheld that judgment in a decision of DATE , subject to arrangements being made for contact . It held in particular :","\u201c ... the ORG says that the child has made positive progress in his foster home , ... having gained in confidence and not demonstrating any behavioural disorders . ... the father does not accept the care order and the attitude of both father and son during the monthly visits is passive , although the boy subsequently vents his emotions . ... The father refuses to speak with the social workers .","... the father lodged a report by a forensic expert in the criminal proceedings with the court . In addition to containing an opinion on whether the abuse was intentional or not ( a matter for the judge dealing with the criminal proceedings ) , it refers to the psychological trauma suffered by the child as a result of his separation from his mother and to the child 's need to live in a home , as the father is unable in his present condition to assume both the paternal and maternal roles .","... those circumstances make it necessary to continue with protective measures , while it is hoped that relations between the father and the social services will improve through mutual acceptance .","... It does , however , appear necessary for the child 's development to facilitate contact with the father by making it more extensive than the child - welfare service has currently decided , namely [ TIME every month ] .","... the court considers it necessary to regulate access by allowing visits [ of TIME , twice DATE ] . ... It has been explained to Mr GPE that if the visits take place without disruption he will be able to apply to the children 's judge for a review of the arrangements and that any incidents must be referred to the children 's judge , who will review the case in the interest of the child . \u201d","On DATE an expert appointed by the investigating judge on DATE had lodged a report . The ORG quoted the following extract from that report in their memorial of DATE :","\u201c The scars to the abdomen , face , and the right forearm are of traumatic origin . The lesions to the abdomen and face appear to have been caused by a blunt or cutting instrument and the lesion to the right forearm by a cigarette burn . An examination of the child 's mental state ... has not revealed any marked pathological symptoms but does suggest retarded development of adequate defence mechanisms to counter anxiety ... He does not present any of the characteristic psychological disorders seen in abused children .","[ On ] examination , the cutaneous lesions presented by [ the child ] on his admission to hospital on DATE are consistent in both form and evolution with the suspected abuse , but can not constitute concrete evidence of abuse .","On the other hand , the psychological after - effects which the child currently presents are directly related to the serious situation that has arisen as a result of severance from the mother figure which the child went through probably in DATE . Those psychological after - effects also demonstrate the incapacity of his father and brother to adopt with him a sufficiently stable maternal role ...","The psychological after - effects by themselves justify his placement in a foster home , as it appears risky to force the father to assume the mother 's role alone , when the characteristic nature of that role is continuous presence . \u201d","On DATE the investigating judge held that the applicant had no case to answer as there was insufficient evidence against him .","In a letter of DATE , the applicant 's counsel requested the children 's judge to hear further evidence from the applicant and to review the care order in the light of the decision to drop the prosecution .","By an order of DATE the children 's judge suspended the applicant 's right to contact until DATE , on the following grounds :","\u201c [ C. ] is showing worrying behavioural disorders and severe anxiety at the prospect of seeing his father . A meeting with a psychiatrist has been arranged and it appears necessary to suspend the visits until that meeting has taken place . An order has been made for a psychiatric report on the child . \u201d","On DATE the children 's judge renewed the order suspending contact , holding :","\u201c An order for a psychiatric report has been made and the report is due to be lodged on DATE . [ The child ] still opposes seeing his father . The father 's right to contact shall remain suspended until the hearing that will take place once the expert 's report has been lodged . \u201d","In their memorial of DATE , the Government quote the following extract from the psychiatric report lodged on DATE :","On examination , [ C. ] does not display any organised pathology but signs of anxiety that appear to be related less to the father 's absence than to the interiorised image of the father .","It would be disturbing for the child for the father 's right to contact to be reinstated at this point . We therefore consider it more prudent to maintain the status quo \u2013 placement in a foster home without visits from the father \u2013 for DATE and to review the position at that juncture . \u201d","In a judgment of DATE the children 's judge renewed the order for ORG 's placement with the ORG for a period of DATE from DATE ( that is to say , until DATE ) . In their memorial of DATE , the Government quote the following extract from that judgment :","\u201c The psychiatric report confirms the need for [ C. ] to be protected from the invasive presence of his father ... Mr GPE remains impervious to any advice concerning his son , whom he regards as his property and whom he affords no opportunity for independent development ; ... these circumstances justify renewing [ C. 's ] placement with the ORG for DATE and suspending contact for that period . \u201d","In a judgment of DATE ORG of ORG upheld the order renewing the child 's placement with the ORG . With regard to the suspension of contact , it appointed an expert to assess whether , and , if appropriate , how , contact between the father and his son could take place and adjourned the hearing of the case \u201c to the first available date after the expert 's report is lodged \u201d .","The expert 's report was lodged on DATE . The ORG quoted the following extracts in their memorial of DATE :","\u201c It is not desirable for [ C. ] to return home to the family environment with his father ...","Intermittent contact between Mr GPE and his son have a moderate relatively morbid impact on [ C. ] ; the lack of contact is not a source of mental suffering ...","Consequently , it is possible to propose a conditional lifting of the ban on contact and brief visits to be allowed DATE at a neutral location .","Allowing Mr DATE to see [ C. ] will provide no solution unless accompanied by psychotherapeutic treatment for him . Admittedly , it seems highly unlikely that he will accept , but it must be impressed on him that all the experts agree that he is suffering from personality disorders . If this course of action is to have any chance of succeeding , it will be necessary for a committee to be set up composed of certain people in whom he has confidence ... , which will inform him of the prescribed treatment and ask him to follow it for the good of and out of love for [ C. ] . \u201d","On DATE ORG of ORG once again deferred a decision on contact and adjourned examination of the case to DATE , the applicant being invited in the meantime to envisage starting therapy , as advised by the expert . The ORG added that contact remained suspended until the next hearing , although the applicant was authorised to make arrangements for the reimbursement of his expenses .","On DATE ORG upheld all the provisions of the judgment of DATE . It noted that the applicant had failed to attend the hearing before it and had refused to cooperate with the ORG , as he had not responded to appointments he had been given so that arrangements for contact with his son could be made . It also noted that the child was relaxed in his new home .","On DATE the children 's judge renewed the order for C. 's placement with the ORG for DATE . The reasoning set out in his judgment was as follows :","\u201c The domestic situation has remained largely unaltered over DATE . Although he has been kept regularly informed by the ORG of his son 's progress , Mr GPE has failed to get in touch , despite being offered appointments . He recently went to [ C. 's ] former school where he made a scene and alarmed those present by his aggressiveness . He has not attended DATE 's hearing but has sent a letter calling for his son 's return . [ C. ] has been making positive progress with his foster parents . It is not possible to envisage [ C. 's ] returning home at present . Before any meetings between the father and the son can take place , Mr GPE will need to contact the ORG so that the question can be explored . \u201d","By an order of CARDINAL DATE the children 's judge dismissed an application by the applicant for the care order to be lifted and renewed the placement with the ORG for DATE from DATE . The order stipulated that the applicant 's rights to ordinary contact and to residential contact would be conditional on \u201c professional support for both father and child being provided \u201d . The reasons for the order were as follows :","\u201c Mr GPE seeks the return of his son , but did not attend the last hearing on DATE . He has been kept informed by the ORG of his son 's progress but says that he has never received any documents and refuses all contact with the social worker responsible for [ C. ] . He claims that he is able to tend to all his son 's needs and perceives the placement as having torn the family apart and as a means of persecuting him and his son 's need as an extension of himself . He rejects any idea of treatment or of a third party 's intervening between him and his son . [ C. ] is progressing well in his foster home but clams up when his father is mentioned and refuses to listen . The situation is currently in an impasse and it does not appear possible at present for contact between the father and his son to be envisaged without the presence of a mediator and a third party , and it will be necessary for [ C. ] to be accompanied and helped to find the strength to broach the subject of relations with his father . \u201d","The applicant appealed to ORG of the Lyons Court of Appeal . At his request , the applicant 's son was heard by a member of that ORG on DATE . On DATE ORG delivered the following decision :","\u201c [ C. ] was placed into the care of the ORG after suspected abuse ; the placement was also a consequence of the father 's inability to tend to his material and educative needs . At the material time , Mr GPE , who had been living on his own since [ C. 's ] mother 's return to LOC in DATE , was also wholly incapable of bringing up his then adolescent sons , [ I. ] and [ PERSON . ] , who had to be placed in care by the children 's judge .","The father 's violent conduct towards the social workers during visits to his son led the children 's judge to arrange for the visits to take place at a neutral location and subsequently to suspend them and to seek an informed opinion on whether contact between the father and the child was possible . The experts found that Mr GPE was suffering from severe personality disorders and was incapable of considering his son as a separate being ( Dr [ Pe . ] ) or other than as a narcissistic object ( Dr [ C. ] ) . In that connection , the appellant confirmed by his remarks at the hearing on DATE that he was incapable of imagining that [ C. ] could lead a separate existence ( he kept repeating : ' my son is dead ' ) .","Mr GPE refuses to acknowledge that [ C. ] made a firm request at the hearing to be allowed to live with his foster parents ' all the time ' , though he also seeks contact with a father of whom he is fond .","In these circumstances , returning the minor to his father would put his health and safety at risk and would be very damaging to his welfare . The decision to renew his placement will therefore be upheld .","Although Mr GPE rejects the whole idea of treatment or meetings with third parties , in order to offer the meetings with [ C. ] , whom he has not seen for DATE , ' a chance of success ' ( Dr [ Pe . ] ) , attempts should be made to arrange contact at a neutral location through a specialist counselling service . As it will take some time to make the arrangements , the first visit will be during DATE ... ORG ... upholds the decision of the court below regarding [ C. 's ] continued placement ; holds that Mr GPE shall be entitled to visit his son , [ C. ] , at a neutral location and that there shall be an initial TIME visit during DATE followed by CARDINAL - and - a - half - hour visits at DATE intervals until DATE ; to that end , orders an inquiry and welfare counselling by a centre for educative action ... whose task will be to determine the arrangements ( place , date and time ) of the visits ; orders that the centre for educative action will report to ORG by DATE on progress and may , in the event of serious incident , terminate the measure immediately , provided it informs the President of ORG without delay . ... \u201d","On DATE Mr GPE lodged a notice of appeal on points of law with the registry of ORG . On DATE he made an application for legal aid to ORG of ORG . In a decision of DATE , ORG accepted the applicant 's eligibility for legal aid on the means test but dismissed his application on the ground that \u201c no arguable ground of appeal on points of law [ could ] be made out against the impugned decision \u201d . Mr GPE exercised his right of appeal to the President of ORG under section CARDINAL of Law no . CARDINAL of DATE on legal aid , but his appeal was dismissed by an order of DATE on the ground that \u201c it [ did ] not appear from an examination of the evidence in the file that a ground of appeal on points of law [ could ] be argued with any real prospect of success \u201d .","On DATE the President of ORG dismissed the appeal as being out of time on the following ground :","\u201c The notice of the appeal on points of law does not set out any valid ground of appeal . Furthermore , the appellant has not sent a memorial containing valid grounds of appeal to the registry of ORG within the statutory time - limit . \u201d","In their memorial of CARDINAL DATE , the Government alleged that on DATE the centre for educative action had sent to ORG of ORG a record of the applicant 's CARDINAL visits to his son , in which it had concluded : \u201c It does not appear desirable for the meetings between father and son to continue in these circumstances , since [ C. ] remains at risk when with his father , whose pathology makes it impossible for him to consider his son otherwise than as a part of himself , such that there is no room for the independent existence of this small boy . \u201d","On DATE the children 's judge renewed the order placing C. in the care of the ORG for a period of DATE starting on DATE . The judgment contained the following reasons :","\u201c ... Mr GPE continues to call for [ C. 's ] return ... He says that he finds their separation painful and regards it as unjustified and unlawful . He is unable to comprehend that renewed contact must take place gradually and does not consider that the children 's judge has any right to take decisions concerning [ C. ] . [ C. ] is making positive progress in his foster home . He says that he is ready to meet his father once he is better . It is necessary to assess the feasibility of contact between father and son . \u201d","On DATE the children 's judge ordered a new medical , psychological and psychiatric report on C. According to the Government , the report , which was lodged on CARDINAL DATE , concluded as follows ( extract from the ORG 's memorial of CARDINAL August CARDINAL ) :","\u201c On medical examination , [ C. 's ] general health ... was seen to be good and his psychomotor development normal .","[ C. 's ] mental development is normal . He will shortly be reaching adolescence and shows considerable interest in GPE , consistent with the construction of his identity and the need to adhere to his biological origins .","There is no sign of marked mental illness on examination . ...","[ C. ] does not present any physical or mental disorders or disabilities likely to influence his behaviour .","No special protection , assistance or therapeutic measures are required . However , in view of the history of mental suffering that has occurred concurrently with visits from his father and [ C. 's ] current genuine wish to see his father again , any new contact that takes place should be accompanied by enhanced psychological support to avert and treat new symptoms .","There is no need for specialised treatment for the time being .","There is no medical reason why contact should not take place . He is receiving a normal education which he is pursuing with success . \u201d","The Government added that on CARDINAL DATE the children 's judge delegated to the ORG by way of a grant of power pursuant to LAW such parental authority as would enable it to obtain a national identity card for C. , on the ground that \u201c Mr GPE is not in touch with the LOC ... \u201d .","On DATE the children 's judge sent the following letter to the applicant 's lawyer :","\u201c ... I acknowledge receipt of your letter of DATE regarding the possibility of Mr GPE visiting his son [ C. ] .","In view of the very difficult background to this case , no visit can be arranged unless Mr Gnahor\u00e9 first contacts the ORG ... who are responsible for [ C. ] .","[ C. ] has not asked to see his father recently and may find a visit very perturbing . ... \u201d","In DATE the Director of ORG of the Villeurbanne Territorial Unit sent the following letter to the applicant :","\u201c I acknowledge receipt of your letter of DATE and note what you say .","I would remind you that [ C. 's ] file is still being handled by ORG of ORG ...","Mr [ NORP ] remains the caseworker responsible for [ C. ] and I can , if you so wish , send you news of your son by letter .","However , I regret to inform you that I am unable to grant your request to see [ C. ] .","This is because it has never been possible to do any preparatory work with you , despite the efforts of members of this service , or to build relations with you without your resorting to violence , or making demands or threats .","Furthermore , at the request of ORG a review of the father \/ son relationship has been conducted by the LAW responsible for GPE . You saw [ C. ] in that connection once DATE for DATE and the same findings were reached , namely that :","( i ) it is impossible for you to re - establish a relationship with your son in his interest and in liaison with the children 's service ;","( ii ) NORP you refuse to accept that you need treatment .","Under these circumstances and in [ C. 's ] interest , I have no alternative but to stand by my decision ... \u201d","The relevant provisions of LAW are as follows :","\u201c If the health , safety or morals of an unemancipated minor are at risk , or if the conditions in which he or she is being brought up are highly unsatisfactory , a court order may be made for educative assistance measures on application by the father and mother , jointly or severally , the person or authority in whose care the child has been placed , the guardian , the child itself or by a representative of ORG . The court may act on its own initiative in exceptional circumstances . ...","The duration of the measure shall be determined by the court in its decision but shall not exceed DATE if the assistance is to be provided by a service or an institution . The measure may be renewed by a reasoned decision . \u201d","\u201c The children 's judge shall have jurisdiction for all matters concerning educative assistance .","The children 's judge shall in all cases endeavour to obtain the family 's agreement to the measure envisaged . \u201d","\u201c Whenever possible , the minor shall remain in his or her present home . In such cases , the judge shall appoint a qualified person or a service for observation , education or rehabilitation in the home to provide the family with help and advice in order to surmount the material or psychological difficulties encountered . That person or service shall be responsible for monitoring the child 's development and periodically reporting to the judge .","The judge may also order that the child shall remain at home only if special obligations are complied with , such as regular attendance at an ordinary or specialised health or educational institution , or carrying on an occupational activity . \u201d","\u201c Decisions concerning educative assistance may at any time be varied or set aside by the judge who delivered them , either on his or her own initiative or on application by the father and mother , jointly or severally , the person or authority in whose care the child has been placed , the guardian , the child itself or by a representative of ORG . \u201d","\u201c The father and mother of the child for whose benefit assistance has been ordered shall retain their parental authority over the child and shall be entitled to exercise all attributes of that authority that are not inconsistent with the application of the measure . For so long as an educative assistance measure is in force they shall not be entitled to emancipate the child without permission from the judge .","If the child has had to be placed outside the family home , his or her parents shall retain the right to correspond with the child and to have contact . The judge shall decide on the arrangements and may even , if the interest of the child so demands , decide that the exercise of either or both of those rights shall be provisionally suspended . The judge may order that a placement for the child shall be sought in a location that will facilitate so far as possible contact with the parent or parents . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6","8"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22786","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2002,"docname":"LELLA v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , born in DATE and living in PERSON .","At the relevant time the applicant had been politically active for DATE , as a member of ORG and as candidate for ORG on CARDINAL occasions .","In DATE he was convicted of aggravated debtor \u2019s dishonesty and a book - keeping offence and sentenced to DATE and CARDINAL months\u2019 imprisonment . The judgment was upheld by a court of appeal and ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused leave to appeal in DATE . A subsequent request for the case to be re - opened was likewise refused .","On DATE ORG of ORG refused the applicant \u2019s request that the enforcement of his sentence be postponed due to his illness .","On DATE ORG voted to disqualify the applicant from sitting on the assembly on account of his having been sentenced to over six months\u2019 imprisonment . His appeal was refused by ORG ( l\u00e4\u00e4ninoikeus , l\u00e4nsr\u00e4tten ) of ORG on DATE . His further appeal to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) was apparently likewise refused .","Meanwhile , on DATE , the Chief Enforcement Officer ( kihlakunnanvouti , h\u00e4radsfogden ) of PERSON granted the applicant \u2019s further postponement request in order to enable him to organise certain private matters prior to serving his sentence . He was ordered to start serving his prison term on DATE .","In DATE the applicant requested that the enforcement of his sentence be postponed until DATE so as to allow for his effective participation in the parliamentary elections on CARDINAL DATE in which he intended to present himself as a candidate .","On DATE this request was dismissed , the Chief Enforcement Officer having concluded that the already fixed enforcement would not engender any exceptional and significant losses or difficulties to the applicant , his family , his employer or to society within the meaning of the chapter CARDINAL , section CARDINAL ( c ) of the Act on the Enforcement of Sentences ( laki rangaistusten t\u00e4yt\u00e4nt\u00f6\u00f6npanosta , lag om verkst\u00e4llighet av straff ) . Moreover , the considerations militating in favour of the immediate enforcement of his sentence clearly outweighed the inconvenience which such enforcement would cause . Under chapter CARDINAL , section CARDINAL ( d ) of the said Act the decision was automatically referred to ORG which upheld it on DATE .","Having started to serve his sentence on DATE , the applicant , on DATE , filed an extraordinary appeal to ORG , seeking to have the refusal quashed as it had been based on a manifestly incorrect application of the law . He also sought to have the enforcement of his sentence stayed at least until the court had decided the matter . On DATE the court refused to re - open the case .","Meanwhile , on DATE the applicant registered as candidate in the upcoming elections .","His CARDINAL requests for leave immediately prior to and on DATE , in order to enable him to complete his campaign , were all refused by FAC . The refusals were automatically referred to ORG which upheld them .","The applicant was not elected .","The sentences imposed on CARDINAL other defendants convicted in the same criminal proceedings were allegedly not enforced until DATE .","B. Relevant domestic law","Parliamentary elections are normally held DATE in GPE . Under LAW ( valtiop\u00e4iv\u00e4j\u00e4rjestys , riksdagsordning ) , as in force at the relevant time , anyone entitled to vote in parliamentary elections is likewise entitled to stand as a candidate , unless placed under guardianship ( section CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23365","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2003,"docname":"AO \"URALMASH\" v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is a public company \u201c ORG \u201d ( NORP \u0430\u043a\u0446\u0438\u043e\u043d\u0435\u0440\u043d\u043e\u0435 \u043e\u0431\u0449\u0435\u0441\u0442\u0432\u043e \u00ab \u0423\u0440\u0430\u043b\u044c\u0441\u043a\u0438\u0439 \u0437\u0430\u0432\u043e\u0434 \u0442\u044f\u0436\u0435\u043b\u043e\u0433\u043e \u043c\u0430\u0448\u0438\u043d\u043e\u0441\u0442\u0440\u043e\u0435\u043d\u0438\u044f ORG , ORG \u201c GPE \u201d or \u201c the applicant company \u201d ) located in GPE . The applicant company is represented before the ORG by PERSON , the head of its legal department .","The facts of the case , as submitted by the applicant company , may be summarised as follows .","Pursuant to decisions of ORG of CARDINAL and DATE , the applicant company was privatised and the assets of the serial devices engineering plant ( \u0417\u0430\u0432\u043e\u0434 \u0441\u0435\u0440\u0438\u0439\u043d\u044b\u0445 \u043c\u0430\u0448\u0438\u043d , \u201c the Plant \u201d ) were included , among others , in the applicant company \u2019s charter capital .","On DATE the applicant company made an offer to the Government to return the Plant into state ownership in exchange for a certain number of the applicant company \u2019s shares . On DATE the ORG accepted the offer and the terms and conditions of the exchange were developed at a meeting on DATE .","On DATE the applicant company and the ORG signed an agreement on the transfer of the Plant to the ORG for consideration . On DATE the applicant company transferred the Plant to ORG of GPE , acting on behalf of the Government .","On DATE the applicant company invited the Government to pay the stipulated consideration for the Plant . On DATE and CARDINAL DATE ORG of GPE and the Government acknowledged the outstanding debt and offered to pledge the respective amount in DATE ORG budget . However , on DATE and CARDINAL DATE ORG of GPE refused to pay the applicant company with reference to the absence of supporting documentation .","On DATE the applicant company lodged a civil action against the ORG and ORG with ORG ( NORP \u0441\u0443\u0434 \u0433. GPE ) . The applicant company sought to recover the outstanding payment for the transferred Plant .","On DATE ORG dismissed the applicant company \u2019s action . The court held that the Plant had been unlawfully privatised and , therefore , it could not be legitimately transferred back into state ownership for consideration .","On DATE the applicant company brought an appeal ( \u0430\u043f\u0435\u043b\u043b\u044f\u0446\u0438\u043e\u043d\u043d\u0430\u044f \u0436\u0430\u043b\u043e\u0431\u0430 ) against the judgment of CARDINAL DATE . It argued , inter alia , that the privatisation had been lawful and subsequently approved by a Government resolution .","On DATE the Appeal Instance of ORG ( \u0430\u043f\u0435\u043b\u043b\u044f\u0446\u0438\u043e\u043d\u043d\u0430\u044f \u0438\u043d\u0441\u0442\u0430\u043d\u0446\u0438\u044f \u0410\u0440\u0431\u0438\u0442\u0440\u0430\u0436\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430 \u0433. GPE ) granted the applicant company \u2019s action and awarded it ORG to be paid by ORG on behalf of GPE .","On DATE ORG and ORG brought cassation appeals ( \u043a\u0430\u0441\u0441\u0430\u0446\u0438\u043e\u043d\u043d\u044b\u0435 \u0436\u0430\u043b\u043e\u0431\u044b ) against the judgment of DATE .","On DATE ORG of ORG \u0430\u0440\u0431\u0438\u0442\u0440\u0430\u0436\u043d\u044b\u0439 \u0441\u0443\u0434 GPE \u043e\u043a\u0440\u0443\u0433\u0430 ) granted the cassation appeals , quashed the judgment of CARDINAL DATE and restored the judgment of DATE .","The applicant company sent several applications for supervisory review ( \u0437\u0430\u044f\u0432\u043b\u0435\u043d\u0438\u0435 \u043e \u043f\u0440\u0438\u043d\u0435\u0441\u0435\u043d\u0438\u0438 \u043f\u0440\u043e\u0442\u0435\u0441\u0442\u0430 \u0432 \u043f\u043e\u0440\u044f\u0434\u043a\u0435 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 ) . These applications were refused by letters of the deputy President of ORG of GPE of DATE and DATE and a letter of the President of ORG of GPE of DATE .","On DATE the applicant company lodged an application for supervisory review under the new procedure , in force as of DATE .","On DATE the application for supervisory review was dismissed . The applicant company was advised that , under the new procedure , no new applications on the same subject were permissible .","On DATE the new Code on Commercial Procedure of GPE ( NORP \u043f\u0440\u043e\u0446\u0435\u0441\u0441\u0443\u0430\u043b\u044c\u043d\u044b\u0439 \u043a\u043e\u0434\u0435\u043a\u0441 ORG ) entered into force , with the exception of LAW of the Code \u201c Proceedings for the review of courts\u2019 decisions by way of supervision \u201d ( \u201c \u041f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u043e \u043f\u043e \u043f\u0435\u0440\u0435\u0441\u043c\u043e\u0442\u0440\u0443 \u0441\u0443\u0434\u0435\u0431\u043d\u044b\u0445 \u0430\u043a\u0442\u043e\u0432 \u0432 \u043f\u043e\u0440\u044f\u0434\u043a\u0435 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 \u201d ) which became effective as of DATE . LAW established a new procedure for the supervisory review of courts\u2019 decisions that have already entered into legal force .","According to a general rule in LAW , the application for supervisory review can be filed with ORG of GPE within DATE after the contested decision entered into legal force , provided that all other remedies have been exhausted .","The PERSON on the Introduction of the Code on Commercial Procedure of GPE of DATE ( \u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u044b\u0439 \u0437\u0430\u043a\u043e\u043d \u00ab \u041e \u0432\u0432\u0435\u0434\u0435\u043d\u0438\u0438 \u0432 \u0434\u0435\u0439\u0441\u0442\u0432\u0438\u0435 \u0410\u0440\u0431\u0438\u0442\u0440\u0430\u0436\u043d\u043e\u0433\u043e \u043f\u0440\u043e\u0446\u0435\u0441\u0441\u0443\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u043a\u043e\u0434\u0435\u043a\u0441\u0430 PERSON CARDINAL-\u0424\u0417 ) provided that , in respect of courts\u2019 decisions made before DATE , the period for filing an application for supervisory review of such decisions will be calculated from DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72925","languageisocode":"ENG","respondent":"ITA","branch":"GRANDCHAMBER","date":2006,"docname":"CASE OF SCORDINO v. ITALY (No. 1)","importance":1,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)","judges":"Alvina Gyulumyan;Christos Rozakis;Corneliu B\u00eersan;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mariavaleria Del Tufo;Matti Pellonp\u00e4\u00e4;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky","text":["The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE di GPE .","In DATE the applicants inherited from Mr PERSON several plots of land in GPE di GPE , entered in the land register as folio CARDINAL , parcels CARDINAL , CARDINAL , CARDINAL and CARDINAL . On DATE GPE di ORG had adopted a general development plan , which was approved by ORG on DATE . The land in issue in the present application , an area of CARDINAL sq . m designated as parcel CARDINAL , was made the subject of an expropriation permit under the general development plan with a view to the construction of housing on the land . The land was subsequently included in the zonal development plan approved by ORG on DATE .","NORP In DATE GPE di ORG decided that a cooperative society , PERSON , would carry out building work on the land in question . In a decision of CARDINAL DATE , the administrative authorities granted the cooperative permission to occupy the land .","On DATE , pursuant to Law no . CARDINAL , GPE ORG offered an advance on the compensation payable for the expropriation , the amount having been determined in accordance with PERSON no . CARDINAL\/CARDINAL . The sum offered , MONEY ( ITL ) , was calculated according to the rules in force for agricultural land , using a value of ITL CARDINAL per square metre as a basis , with the proviso that the final amount of compensation would be determined once a law had been enacted laying down new compensation criteria for building land .","The offer was refused by PERSON .","On DATE ORG issued an expropriation order in respect of the land .","On DATE ORG made a second offer of an advance , this time amounting to ITL CARDINAL,CARDINAL . The offer was not accepted .","In judgment no . CARDINAL of DATE , ORG declared PERSON no . CARDINAL unconstitutional on the ground that it made the award of compensation subject to the enactment of a future law .","As a result of that judgment , PERSON no . CARDINAL\/CARDINAL , which provided that compensation for expropriation should correspond to the market value of the land in question , came back into force .","On DATE served formal notice on ORG to determine the final amount of compensation in accordance with PERSON no . CARDINAL\/CARDINAL . On DATE he learned that GPE ORG had assessed the final amount at ITL CARDINAL ( ITL CARDINAL per square metre ) in an order of PERCENT .","On DATE , contesting the amount of compensation he had been awarded , PERSON brought proceedings against ORG and the cooperative in the GPE di ORG .","He argued that the amount determined by ORG was ridiculously low in relation to the market value of the land and requested , among other things , to have the compensation calculated in accordance with PERSON no . CARDINAL\/CARDINAL . He also sought compensation for the period during which the land had been occupied before the expropriation order had been issued , and for the area of land ( QUANTITY . m ) that had become unusable as a result of the building work .","Preparation of the case for hearing began on DATE .","The cooperative gave notice of its intention to defend and raised an objection , arguing that it could not be considered a party to the proceedings .","On DATE , as ORG had still not given notice of its intention to defend , the GPE di ORG declared it to be in default and ordered an expert assessment of the land . By an order of CARDINAL DATE , an expert was appointed and was given DATE in which to submit his report .","On DATE the ORG gave notice of its intention to defend and raised an objection , arguing that it could not be considered a party to the proceedings . The expert agreed to his terms of reference and was sworn in .","On DATE the expert submitted a report .","On DATE Law no . CARDINAL of CARDINAL DATE ( \u201c Urgent measures aimed at stabilising public finances \u201d ) came into force . LAW laid down new criteria for calculating compensation for the expropriation of building land . The PERSON was expressly applicable to pending proceedings .","Mr A. Scordino died on DATE . On DATE the applicants declared their intention to continue the proceedings .","On DATE the NORP di ORG appointed another expert and instructed him to assess the compensation for the expropriation according to the new criteria laid down in section CARDINAL bis of Law no . CARDINAL .","The expert submitted his report on DATE , concluding that the land \u2019s market value on the date of the expropriation had been ITL CARDINAL per square metre . In accordance with the new criteria laid down in CARDINAL bis of PERSON no . CARDINAL\/CARDINAL , the compensation due was ITL QUANTITY .","At a hearing on DATE , the parties asked for time to submit comments on the expert \u2019s report . Counsel for the applicants produced a separate expert opinion and observed that the expert appointed by the court had omitted to calculate the compensation for the QUANTITY . m of land that was not covered by the expropriation order but had become unusable as a result of the building work .","A hearing was held on DATE at which observations were submitted in reply . The next hearing , scheduled for DATE , was adjourned by the court of its own motion until DATE and then until DATE .","By an order of DATE , the court ordered a further expert assessment and adjourned the proceedings until DATE . However , the hearing was subsequently adjourned on several occasions as the investigating judge was unavailable . At the ORG request , the investigating judge was replaced on DATE and the parties made their submissions at a hearing on DATE .","In a judgment of CARDINAL DATE , the GPE di ORG held that the applicants were entitled to compensation calculated according to section CARDINAL bis of Law no . CARDINAL , both for the land that had been formally expropriated and for the land that had become unusable as a result of the building work . It also held that the compensation thus determined should not be subject to the further PERCENT statutory deduction applicable where the owner of the expropriated land had not signed an agreement for its transfer ( cessione volontaria ) , seeing that in the applicants\u2019 case the land had already been expropriated when the PERSON had come into force .","In conclusion , ORG ordered ORG and the cooperative to pay the applicants :","( a ) ITL CARDINAL,CARDINAL,CARDINAL ( ITL MONEY per square metre for QUANTITY . m of land ) in compensation for the expropriation ;","( b ) ITL CARDINAL,CARDINAL,CARDINAL ( ITL CARDINAL,CARDINAL.CARDINAL per square metre for QUANTITY m ) in compensation for the part of the land that had become unusable and was to be regarded as having been de facto expropriated ; and","( c ) compensation for the period during which the land had been occupied prior to its expropriation .","Those amounts were to be index - linked and subject to interest until the date of settlement .","On DATE the cooperative appealed on points of law , arguing that it could not be considered a party to the proceedings . On DATE respectively the applicants and ORG likewise appealed .","On DATE the cooperative applied for a stay of execution of ORG judgment . That application was dismissed on DATE .","NORP In a judgment of CARDINAL DATE , deposited with the registry on DATE , ORG allowed the cooperative \u2019s appeal , acknowledging that it was not a party to the proceedings as it had not formally been a party to the expropriation , although it had benefited from it . It upheld the remainder of the Reggio di ORG judgment .","In the meantime , on DATE , the amount awarded by ORG had been deposited at ORG . On DATE tax was deducted from it at a rate of PERCENT in accordance with PERSON no . ORG .","On DATE the applicants applied to the NORP di ORG under PERSON no . CARDINAL of DATE , known as the \u201c Pinto Act \u201d , complaining about the excessive length of the above - described proceedings .","The applicants asked the court to find that there had been a violation of LAW and order the NORP ORG and ORG to compensate them for non - pecuniary damage , which they assessed at MONEY ( ORG ) , and the pecuniary damage that they considered they had sustained as a result of the application of PERSON no . CARDINAL\/CARDINAL to their case .","In a decision of DATE , deposited with the registry on DATE , the NORP di ORG found that the length of the proceedings had been excessive . It held as follows :","\u201c ... The proceedings began on DATE and ended on DATE . They were conducted at CARDINAL levels of jurisdiction and were not particularly complex .","It can be seen from the case - law of ORG that DATE is deemed to be an acceptable period for proceedings at first instance and DATE at second instance .","The applicants declared their intention to continue the proceedings as the heirs of PERSON , who died in DATE , when a reasonable time had not yet been exceeded .","Accordingly , the delays must be calculated only in respect of the subsequent period , and amount to DATE .","It is not the applicants who are responsible for the delay , but rather the malfunctioning of the judicial system .","The pecuniary damage alleged by the applicants has not been caused by the length of the proceedings and can not therefore be compensated .","Having regard to the foregoing , the applicants are entitled only to compensation for the non - pecuniary damage they have sustained on account of the length of the proceedings , that is , the prolonged uncertainty regarding the outcome of the proceedings and the distress generally experienced as a result of that uncertainty .","In view of what was at stake , the amount to be awarded for non - pecuniary damage is ORG CARDINAL . \u201d","ORG ordered ORG to pay the applicants a total sum of ORG CARDINAL for non - pecuniary damage alone . With regard to the government , ORG considered that they could not be considered as a party to the proceedings .","Regarding the apportionment of the legal costs , ORG ordered ORG to pay ORG CARDINAL,CARDINAL and the applicants to pay the remaining LAW .","The applicants did not appeal to ORG . ORG decision became final on DATE .","Section CARDINAL of Law no . CARDINAL\/CARDINAL provided that , where land was expropriated , the compensation to be paid should correspond to its market value at the time of the expropriation .","DATE , as interpreted by ORG ( see , inter alia , judgment no . CARDINAL of DATE ) , guarantees the payment of compensation for expropriation , in an amount lower than the market value of the land .","Law no . DATE ( supplemented by LAW no . ORG , which subsequently became PERSON no . PERSON , and by LAW no . CARDINAL ) laid down new criteria : compensation for any land , whether it was agricultural or building land , should be paid as though it were agricultural land .","In judgment no . CARDINAL of DATE , ORG declared PERSON no . CARDINAL unconstitutional on the ground that it afforded the same treatment to CARDINAL very different situations by providing for the same form of compensation for building and agricultural land .","The scope of a decision of ORG declaring a law illegal is not limited to the case in question but is erga omnes . It is of retrospective effect in that the law declared unconstitutional can no longer produce any effects or be applied from DATE after the publication of the decision ( LAW taken in conjunction with LAW no . CARDINAL of DATE and LAW no . CARDINAL\/CARDINAL ) .","ORG has often made explicit the retrospective effect of declarations of unconstitutionality ( see , inter alia , judgment no . CARDINAL of DATE ) . It has indicated in this connection that a declaration of unconstitutionality can be equated with a straightforward annulment , since it makes the law in question unconstitutional from the time of its entry into force , annuls it and makes it inapplicable to any non - final situation ( and to the final situations defined by law ) . Furthermore , no one at all , in particular the courts , may rely on provisions that have been declared unconstitutional to assess a given situation , even if that situation arose prior to the declaration of unconstitutionality ( see , on this point , judgment no . CARDINAL of DATE and decisions no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .","A similar decision has been given by ORG , declaring that \u201c where a law has been declared unconstitutional it can not in any circumstances be applied , given that it must be considered as having never existed , and that a decision declaring a law unconstitutional has a retrospective effect regarding any non - final situation \u201d ( Court of Cassation , Section II , DATE ; Section V , DATE ) .","When ORG declares a law unconstitutional the provisions that had previously been applicable come back into force ( reviviscenza ) , unless they have also been declared unconstitutional .","After judgment no . CARDINAL\/CARDINAL had declared PERSON no . CARDINAL unconstitutional , ORG enacted PERSON no . CARDINAL of DATE , which reaffirmed , but this time on a provisional basis , the criteria that had been declared unconstitutional . The PERSON provided that compensation should be paid in the form of an advance , to be supplemented by a payment calculated on the basis of a subsequent law that would lay down specific compensation criteria for building land .","In judgment no . CARDINAL of DATE , ORG declared PERSON no . CARDINAL unconstitutional on the ground that it made the award of compensation for the expropriation of building land subject to the enactment of a future law and that it reintroduced \u2013 even if only on a provisional basis \u2013 compensation criteria that had been declared unconstitutional . In that connection ORG reiterated that the legislature had to accept that a law that had been declared illegal stopped producing its effects immediately , and stressed the need to draw up provisions for substantial awards of compensation for expropriation ( serio ristoro ) .","As a result of judgment no . CARDINAL of DATE , section DATE of Law no . CARDINAL\/CARDINAL came back into force . Consequently , the compensation payable for building land was to correspond to the land \u2019s market value ( see , for example , ORG , Section I , judgment no . DATE of CARDINAL DATE ; Section I , judgment no . CARDINAL of CARDINAL DATE ; and plenary court , judgment no . CARDINAL of CARDINAL DATE ) .","Section CARDINAL bis of Law no . CARDINAL of CARDINAL DATE introduced a \u201c temporary , exceptional and urgent \u201d measure aimed at stabilising public finances , to remain valid until structural measures were adopted . That provision applied to any expropriation under way and to any pending proceedings related thereto . LAW no . CARDINAL\/CARDINAL , which was published in ORG on DATE , came into force on DATE .","Section CARDINAL bis provides that the compensation payable for the expropriation of building land is to be calculated using the following formula : market value of the land plus the total of DATE ground rent multiplied by DATE , divided by CARDINAL , minus a PERCENT deduction .","In such cases , the compensation corresponds to PERCENT of the market value . That amount is subject to tax , deducted at source at a rate of PERCENT ( in accordance with LAW no . CARDINAL\/CARDINAL ) .","The PERCENT deduction can be avoided if the basis for the expropriation is not an expropriation order but a \u201c voluntary agreement \u201d for the transfer of the land or , as in the instant case , if the expropriation took place before LAW bis came into force ( see ORG judgment no . CARDINAL of DATE ) . In such cases , the resulting compensation corresponds to PERCENT of the market value . Again , that amount is subject to tax at a rate of PERCENT ( see paragraph CARDINAL above ) .","ORG has held section CARDINAL bis of Law no . CARDINAL\/CARDINAL and its retrospective application to be compatible with the LAW ( judgment no . CARDINAL of DATE , and judgment no . CARDINAL of DATE ) on account of the urgent and temporary nature of the PERSON .","The Code of Expropriation Provisions ( Presidential Decree no . ORG , subsequently modified by Legislative Decree no . CARDINAL\/CARDINAL ) , which came into force on DATE , codified the existing provisions and the principles established by the relevant case - law in respect of expropriation .","LAW reiterates the main criteria for calculating compensation for expropriation set forth in LAW no . CARDINAL .","Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW","\u201c ( CARDINAL ) Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the \u2018 reasonable time\u2019 requirement in LAW , shall be entitled to just satisfaction .","( CARDINAL ) In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .","( CARDINAL ) The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :","( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection ( CARDINAL ) may be taken into account ;","( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . \u201d","\u201c ( CARDINAL ) Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .","( CARDINAL ) The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .","( CARDINAL ) The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .","( CARDINAL ) The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG [ Avvocatura dello Stato ] DATE prior to the date of the hearing before the ORG .","( CARDINAL ) The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up until DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .","( CARDINAL ) The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .","( CARDINAL ) To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . \u201d","\u201c A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . \u201d","\u201c If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . \u201d","\u201c ( CARDINAL ) Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the \u2018 reasonable time\u2019 requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .","( CARDINAL ) The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection ( CARDINAL ) of this section . \u201d","\u201c ( CARDINAL ) The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the \u2018 special fund\u2019 in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .","( CARDINAL ) ORG of the ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . \u201d","On appeal from decisions delivered by the courts of appeal in \u201c Pinto \u201d proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) of CARDINAL DATE , the texts of which were deposited with the registry on DATE , quashing the appeal court \u2019s decision and remitting the case for a rehearing . It held that \u201c the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL \u201d .","In its judgment no . CARDINAL it affirmed , inter alia , the principle that","\u201c the court of appeal \u2019s determination of non - pecuniary damage in accordance with LAW no . CARDINAL\/CARDINAL , although inherently based on equitable principles , must be made in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason \u201d .","Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE read as follows :","\u201c CARDINAL . The present application poses the fundamental question of what legal effect must be given \u2013 in implementing PERSON no . CARDINAL of DATE , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement \u2013 to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...","As stipulated in section CARDINAL(CARDINAL ) of the said PERSON , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the \u2018 violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the \u201c reasonable time \u201d requirement in LAW . In other words , PERSON no . CARDINAL\/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said ORG to determine , and therefore to interpret , the significance of the said provisions must be recognised .","As the fact constituting the right conferred by PERSON no . ORG consists of a violation of the LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being \u2018 brought into ORG by the ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .","It is not necessary therefore to pose the general problem of the relationships between the ORG and the internal judicial system , which ORG [ ORG ] has amply discussed in court . Whatever opinion CARDINAL may have about that controversial issue and therefore about the place of the Convention in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of the ORG , established by PERSON no . ORG ( that is , by LAW in the part relating to \u2018 reasonable time\u2019 ) , can not diverge from the interpretation which ORG gives to the same provision .","The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL\/CARDINAL in the national system and the interpretation given by ORG to the right to the reasonable length of proceedings , would deprive the said PERSON no . CARDINAL\/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which \u2018 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable time ) .","The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW \u2018 The ORG may only deal with the matter after all domestic remedies have been exhausted ... \u2019 ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified the ORG to guarantee to individuals the protection of the rights recognised by the LAW , above all in their own internal order and vis - \u00e0 - vis the organs of the national judicial system . And this protection must be \u2018 effective\u2019 ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .","The domestic remedy introduced by Law no . CARDINAL\/CARDINAL did not previously exist in the NORP system , with the consequence that applications against GPE in respect of a violation of LAW had \u2018 ORG ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures on the part of GPE to comply \u2018 reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention\u2019 ( see the CARDINAL judgments of the ORG delivered on DATE in PERSON , PERSON , ORG and ORG ) .","Law no . CARDINAL\/CARDINAL constitutes the domestic remedy to which a \u2018 victim of a violation\u2019 ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the \u2018 just satisfaction\u2019 provided for in LAW , which , when the violation exists , is only awarded by ORG \u2018 if the internal law of ORG concerned allows only partial reparation to be LAW Law no . CARDINAL\/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining the just satisfaction provided for in LAW of proceedings ( see PERSON , decision of DATE ) .","This mechanism for implementation of the LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of the ORG have not been redressed by domestic law or that this has been done only \u2018 ORG , because in such an event the said LAW provides for the intervention of ORG to protect the \u2018 victim of the violation\u2019 . In such cases an individual application to ORG on the basis of LAW is admissible ( see PERSON , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .","The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW to ascertain whether , in the presence of a violation of a provision of the LAW , the internal law has been able to redress fully the consequences of this violation .","The argument whereby , in applying PERSON no . PERSON , the NORP courts may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .","It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing PERSON no . ORG ) , affirmed that \u2018 it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention\u2019 .","... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant \u2018 a protection analogous to that which he or she would receive in the international ORG , as the direct reference to LAW makes it possible to transfer to domestic level \u2018 the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits\u2019 .","...","The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL\/CARDINAL with regard to reparation for non - pecuniary damage .","In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .","It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such reasoning , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of a delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .","NORP In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of compensation for non - pecuniary damage payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( Court HR , DATE , ORG ) . \u201d","The Court of Cassation held as follows :","\u201c ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . PERSON [ the \u2018 Pinto Act\u2019 ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... \u201d","The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism put in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to \u201c just satisfaction \u201d could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .","In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .","DATE . In the case giving rise to the order mentioned above referring the case to the full court ( see paragraph CARDINAL ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :","\u201c ( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into the domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in LAW and which correspond to a large extent to those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...","( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .","The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...","( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . ORG must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ... \u201d","This judgment of ORG concerned an appeal by ORG challenging a court of appeal \u2019s award of compensation for non - pecuniary damage to a juristic person . ORG referred to the decision reached in ORG v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-IV ) and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to \u201c juristic \u201d persons according to the criteria of ORG . Accordingly , since the court of appeal had correctly decided the case , the appeal was dismissed .","ORG made the following observations :","\u201c ... [ Considering that ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG , DATE , CARDINAL . CARDINAL and DATE ) ;","\u2013 the assessment on an equitable basis of compensation for non - pecuniary damage is subject \u2013 on account of the specific reference in LAW no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG , DATE , no . CARDINAL ) ;","...","\u2013 a discrepancy in the method of calculation [ between the ORG \u2019s case - law and LAW ] shall not affect the general vocation of PERSON no . PERSON to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . MONEY ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle of LAW ... \u201d","In the report ORG , revised on DATE , ORG made the following indications regarding an assessment of the Pinto remedy :","\u201c CARDINAL . As regards the domestic remedy introduced in DATE by the \u2018 Pinto Act\u2019 , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings .","...","In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts .","...","It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field .","... \u201d","In this interim resolution the Ministers\u2019 Deputies indicated as follows :","\u201c ORG ...","Noting ...","...","\u2013 the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the \u2018 Pinto\u2019 law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;","Stressing that the setting - up of domestic remedies does not dispense GPE from their general obligation to solve the structural problems underlying violations ;","Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at ORG ) ;","...","Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ;","...","URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE \u2019s obligation under the ORG and the ORG \u2019s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE \u2019s jurisdiction ;","... \u201d","ORG for the Efficiency of Justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .","In its framework programme ( CEPEJ ( CARDINAL ) CARDINAL Rev CARDINAL \u00a7 CARDINAL ) , the ORG noted that the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays ."],"violated_articles":["6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87794","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2008,"docname":"BORENSTEIN AND OTHERS v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicants are : PERSON , born in DATE , living in GPE , and Mr PERSON , born in DATE , PERSON , born in DATE and PERSON , born in DATE , all CARDINAL living in GPE .","They were represented before the ORG by PERSON , a lawyer practising in ORG , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants\u2019 grandfather ORG owned a house in ORG that had been divided into flats . He survived the Holocaust and in DATE left GPE , having appointed PERSON as a representative for the purposes of managing the property . They remained in constant contact and PERSON \u2013 and subsequently his wife \u2013 kept the applicants\u2019 grandfather informed about the situation and financial affairs of the property until his death in DATE .","In DATE the local municipality in ORG took over the management of the house , having stated in the relevant decision that the property had not been managed and supervised by its owner at all since DATE and that , as a result , it was in a bad state of repair . This decision was served on PERSON , the widow of the late manager of the property , PERSON , who subsequently stayed in touch with the applicants .","In DATE ORG requested ORG to declare that it had acquired ownership of the property by way of adverse possession . The court accepted the claimant \u2019s submission that the owner was at that time of unknown abode and appointed a guardian ad litem for the ORG grandfather .","On DATE the court allowed ORG request . No written grounds were prepared for that decision , as the court was obliged to prepare such grounds only if a judicial decision was being appealed against . Accordingly , ORG became owner of the property .","On an unspecified later date , but in any case before DATE , an entry in the land register was made to confirm the ORG \u2019s ownership of the property concerned .","In DATE ORG ownership of land was transferred to local municipalities as part of a countrywide legal reform of local government . Accordingly , the ORG municipality took over the rights to land within its borders that had previously been owned by ORG .","In DATE the applicants obtained decisions from various NORP courts to the effect that they were the legal successors of their grandfather PERSON","In DATE the applicants requested that the proceedings concerning the acquisition of ownership by adverse possession that had ended with the DATE decision be reopened . They argued that these proceedings were invalid in law since they had been flawed as a result of serious procedural shortcomings . The court had appointed a guardian ad litem for their father , which was obviously incorrect as he had died in DATE and no guardian ad litem could be appointed in respect of a deceased person . Further , the court had failed to publish an announcement about the guardian having been appointed for the applicants\u2019 grandfather , which resulted in the proceedings being invalid in law as it thereby became impossible for the parties to have their rights properly represented in the proceedings .","Their request was eventually dismissed on DATE , the appellate court having upheld the lower court \u2019s conclusion that the applicants had failed to submit their request within the DATE time - limit from CARDINAL DATE , the date on which they had learned about the DATE decision .","On DATE the Minister of ORG brought an appeal on points of law against the DATE decision on the applicants\u2019 behalf . The Minister argued that the decision should be quashed for the following reasons :","i ) in the proceedings the court had failed to take into consideration that the property had not in fact been abandoned by the owner but had been managed , at least until DATE , by his representative , who had been validly appointed in DATE ;","ii ) the claimant had failed to disclose to the court the fact that in DATE the defendant had been alive , and that it was not true that at that time it had been impossible to get in touch with him ;","iii ) this failure had a direct incidence on the finding that ORG had been in de facto possession of the property for the period required by law for adverse possession ;","iv ) the court had erred in that it had appointed a guardian ad litem for a person who was dead at that time ;","v ) in the DATE decision the court had failed to indicate a ) DATE from which the ORG had acquired ownership by adverse possession , b ) whether it had regarded the ORG as being in possession in bad or in good faith and c ) how it had calculated the period of adverse possession necessary for the acquisition of ownership by adverse possession .","Following the appeal , on DATE ORG quashed the DATE decision , invalidated the proceedings which had led to it and ordered that the ORG \u2019s request for a declaration that it had acquired the ownership by adverse possession be re - examined . ORG shared the view of the Minister of Justice concerning the error that the court had committed in appointing a guardian ad litem for a person who was dead . It observed that , contrary to the relevant legal obligation , no press announcement had been made about the proceedings having been instituted . Importantly , the court had also failed to make any effort to establish the whereabouts of the former owner or his legal successors .","ORG further noted that when giving the DATE decision the court had failed to make findings crucial for the legal assessment of the case , such as the determination of DATE of possession , the manner of its calculation and the legal basis for considering that the ORG had been in possession of the property in question cum animo rem sibi habendi .","ORG did not pronounce on the Minister \u2019s submission that the ORG \u2019s representatives had failed to disclose to the court in DATE certain relevant information regarding the status of the property .","Subsequently , the proceedings concerning the ORG \u2019s original request for a declaration that it had acquired the property through adverse possession were resumed . In these proceedings the applicants submitted that because of all the procedural shortcomings identified by ORG , the ORG should be considered to have acquired ownership in bad faith . Under the relevant law , the period necessary at that time for acquisition of ownership through adverse possession where there was bad faith was DATE . This period could only be calculated as running , at the earliest , from DATE . Hence , it had not ended by the date on which the present set of proceedings was already pending , the running of the period of adverse possession having been interrupted by the appeal lodged on the applicants\u2019 behalf by the Minister .","On DATE ORG held that ORG had acquired ownership of the property through adverse possession on DATE . The court noted that CARDINAL conditions had to be fulfilled for such acquisition to be effective : CARDINAL ) the property had to be in the possession of the claimant acting cum animo rem sibi habendi and CARDINAL ) the statutory period of possession had to have expired .","The court found that the period DATE could not be taken into account as regards adverse possession of the property since during this period the ORG had been acting only as its manager . However , as from DATE , the date on which the decision of CARDINAL DATE had become final , the ORG had to be regarded as being in possession of the property \u201c like a property owner \u201d ( cum animo rem sibi habendi ) . The DATE decision authorised the ORG to dispose of the property , even if the decision itself had been procedurally flawed .","ORG further found that the DATE decision had justified the ORG \u2019s assertion that it had become the owner of the property concerned . Accordingly , on DATE the ORG had obtained possession in good faith since that possession had arisen from a valid judicial decision . The period of adverse possession required by law in case of good faith was DATE .","ORG further noted that the point in dispute was whether ORG could count towards the period of adverse possession required for acquisition of the property the period of its occupation arising from a judicial decision which had been quashed after the period of adverse possession had expired . That question was answered in the affirmative by ORG in the ORG of DATE , no . III CZP CARDINAL\/CARDINAL , and ORG applied that conclusion to the present case . Accordingly , the period of adverse possession in good faith having come to end on DATE , it was on that date that the ORG had acquired title to the property concerned .","The applicants appealed . They submitted that the lower court had erred in holding that the claimant had acquired title through adverse possession in the absence of good faith and of the requisite character of possession ( cum animo rem sibi habendi ) .","It was wrong , in their view , to disregard DATE decision since the ORG had come into possession of the property when it had taken over its management in DATE . That coming into possession had been unjustified , and thus in bad faith , since the owner \u2019s representatives had at the relevant time duly managed the property . ORG had continued to manifest its bad faith by withholding relevant information from the court when making its application in DATE .","The applicants contested the argument that the ORG could be regarded as being in possession in good faith as a result of the DATE decision having become final . Having regard to the circumstances in which the ORG had taken over the management of the property in DATE , they argued that after DATE the ORG had simply continued to manage the property . Thus , its possession could not be regarded as possession cum animo rem sibi habendi . Furthermore , the ORG could not benefit from the DATE decision because that decision had been rendered in proceedings in which the applicants DATE as a result of the ORG \u2019s actions \u2013 had been deprived of any possibility to defend their interests . If the court were to hold otherwise , the very concept of good faith would be undermined .","The applicants also argued , referring to ORG Resolution of DATE , that it was necessary to consider whether the State authorities\u2019 actions had led to the deprivation of their property . They disagreed with the automatic conclusion that since the possession had arisen from a judicial decision it would always have to be considered possession in good faith .","On DATE ORG dismissed their appeal as unfounded . It analysed in detail all the arguments raised in the appeal .","ORG firstly noted that , contrary to the ORG assertion , it was not necessary to determine the circumstances relating to the ORG \u2019s taking over the management of the property in DATE since the ORG \u2019s rights stemming from an administrative decision on management could not be considered as possession cum animo rem sibi habendi . This view had been expressed by ORG in its decision of DATE .","ORG stressed that the date of the decision on acquisition of title by adverse possession , and in particular the date on which this decision had become final , was of crucial relevance for the calculation of the period of adverse possession . It was from DATE that the claimant ( the ORG ) had obtained a judicial decision declaring that it had become the owner of the property concerned . It noted that ORG Resolution of DATE , no . III CZP CARDINAL\/CARDINAL allowed ORG to count towards the period of adverse possession the period throughout which the ORG had exercised the right to dispose of the property \u201c like a property owner \u201d on the basis of a judicial decision which was quashed after the period of adverse possession had expired . In the present case the court was dealing with precisely such a situation .","ORG observed that that situation was different from the CARDINAL which was analysed in ORG decision of CARDINAL DATE , no . III CKU CARDINAL\/CARDINAL ( published in OSNC CARDINAL\/CARDINAL\/CARDINAL ) in which ORG had held that :","\u201c if ORG right to dispose of a property \u201c like a property owner \u201d is based on an administrative decision which is subsequently set aside with retrospective effect ( ex tunc ) on account of a manifest mistake of law , then ORG may not take into account the fact and period of such occupation when calculating the period of adverse possession referred to in LAW \u201d .","ORG noted , however , that as ORG had underlined in its ORG no . III CZP CARDINAL\/CARDINAL , and by contrast to the above situation , adjudication by civil courts did not amount to ORG sovereign interference in private - law relations since the courts were established to apply the law in civil cases . In the same ORG had emphasised that even manifest breaches of procedural rules in deciding a case may not \u2013 as such \u2013 be qualified as manifestation of ORG exercise of its sovereign powers . ORG noted that ORG when deciding the case in DATE had committed flagrant errors which resulted in the decision being quashed , but nevertheless that did not deprive the claimant of a possibility to have its application granted .","In these particular circumstances ORG concurred with ORG that certainly from the date on which the decision of CARDINAL DATE had become final the claimant should be regarded as being in possession of the property cum animo rem sibi habendi . That date marked also the beginning of the period of adverse possession . In this respect , ORG noted that the applicants had not rebutted the legal presumption established in LAW that the actual possessor of a property should be considered to be in possession of it \u201c like a property owner \u201d . Instead , they had focused their submissions on showing that the taking over of the property \u2019s management in DATE had been unlawful and had not analysed the relevance of the DATE decision which declared that the ORG had become the owner of the property .","Lastly , ORG considered the issue of good or bad faith on the part of the ORG which was relevant for the calculation of the period of adverse possession . In this respect , it referred to the legal presumption in favour of good faith laid down in LAW and found that the applicants had not discharged the burden upon them of proving bad faith on the part of the claimant . In this respect ORG held as follows :","\u201c If bad faith on the part of the claimant were to be assumed at the time when that ( DATE ) decision was given and when it became final , it would have to mean that , regardless of such content of the decision supported by the authority of the court vested with determination of civil - law cases , the claimant would have still to believe that the title did not belong to him or suspect that another person was the owner . Such a view , in the appellate court \u2019s opinion , can not be sustained \u201d .","At the same time , ORG noted that the above conclusion could not be seen as its approval of the manner in which the DATE proceedings had been conducted .","Consequently , ORG held that the DATE period of adverse possession in good faith having come to an end on DATE , the ORG had acquired ownership of the property concerned with effect from that date .","On DATE ORG refused to entertain a cassation appeal lodged by the applicants , finding that no serious legal issue arose in the case such as to justify examination of the appeal .","LAW provides :","\u201c If a law makes legal consequences dependent upon good or bad faith , good faith shall be presumed \u201d","Article CARDINAL of the Civil Code reads :","\u201c It shall be presumed that a person in actual possession of property is in possession \u201c like a property owner \u201d ( cum animo rem sibi habendi ) \u201d","Adverse possession is regulated in Article CARDINAL of LAW . Up until DATE that provision provided that a person could acquire ownership of land after CARDINAL years\u2019 continuous and independent possession in good faith . Otherwise , a longer period of DATE applied .","In DATE LAW was amended and the statutory periods of adverse possession in good and bad faith were extended by DATE . Article CARDINAL , in force since CARDINAL DATE , reads :","\u201c \u00a7 CARDINAL . Persons in possession of property , although they are not the owner , shall acquire title thereto if they have been in continuous and independent possession thereof for DATE , save where they came into such possession in bad faith .","\u00a7 CARDINAL . After DATE , persons in possession of property shall acquire title thereto even if they came into possession thereof in bad faith . \u201d","Persons in possession of the property can apply to the district court for a declaration that , as of a specific date , they acquired ownership of property on the strength of adverse possession for a statutory period .","In its Resolution No . III CZP CARDINAL\/CARDINAL of DATE ( published in OSNC CARDINAL\/CARDINAL\/CARDINAL ) , ORG held that :","\u201c ORG may count towards the period of adverse possession , within the meaning of Article CARDINAL , the period of occupation \u201c like a property owner \u201d on the basis of a court judgment which was [ subsequently ] quashed as a result of an extraordinary appeal ( rewizja nadzwyczajna ) after the period of adverse possession had elapsed . \u201d","In the written grounds ORG observed that the manner in which the possessor came into possession of the property , including whether he was aware of any unlawfulness in this respect , was immaterial for the validity of adverse possession . The latter circumstance was relevant for the calculation of the period of adverse possession . Furthermore , ORG noted that the validity of adverse possession would not be affected in a case where the final court judgment declaring acquisition of title was subsequently quashed on appeal .","ORG further observed that in exceptional circumstances it might be possible to disregard the legal consequences of the application of civil law . In particular , such a possibility might arise when an unlawful interference by the ORG exercising its sovereign prerogatives ( imperium ) in private - law relations was a determining factor which led to the deprivation of a civil right . By contrast , adjudication by civil courts did not constitute ORG sovereign interference in private - law relations , since the courts had been established to apply the law in civil cases . Accordingly , even grave procedural errors committed by a court when determining a case could not of themselves be qualified as a manifestation of ORG exercise of its sovereign powers . There would have to be some additional , exceptional circumstances indicating that the ORG had abused its sovereign prerogatives or acted unlawfully with a view to depriving a person of his or her civil right ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-73067","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2006,"docname":"KOLOTKOV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by Mr P.A. Laptev , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was a civil servant in ORG . DATE he was assigned to the NORP embassy in GPE as an attach\u00e9 . By an order of DATE he was dismissed from ORG on the ground of expiration of the term of his labour contract .","On DATE the applicant brought proceedings for reinstatement . On DATE the ORG of GPE found that the applicant had been employed for an indefinite period and that his dismissal had , therefore , been unlawful . It ordered the respondent Ministry to reinstate him in his post of an attach\u00e9 at the NORP embassy in GPE and update his labour records accordingly . It stated that the judgment was subject to immediate enforcement . ORG appealed against the judgment . On DATE ORG rejected the ORG appeal and upheld the judgment which came into force on DATE .","On DATE the ORG ordered the applicant \u2019s reinstatement in his post in accordance with the judgment of DATE . However , as the DATE term of his assignment in GPE had been expired and no extension was possible the applicant was offered , in DATE , posts of an attach\u00e9 available in the central office of ORG in GPE . He refused to accept the offers and requested the continuation of his work in the capacity of an attach\u00e9 at the embassy in GPE .","On DATE he applied to the bailiff requesting the enforcement of the judgment . On DATE the bailiff brought enforcement proceedings .","By an order of CARDINAL DATE the applicant was appointed an attach\u00e9 at the historical and documentary department of the central office of ORG as of DATE . He refused to assume his office .","By letters of CARDINAL , DATE and CARDINAL DATE the Ministry informed the bailiff of their efforts to enforce the judgment and to settle the situation with the applicant \u2019s employment . They explained , inter alia , with reference to the applicable legislation and the rules of rotation of diplomatic staff that there was no legal basis for the applicant \u2019s continued service in the embassy in GPE .","By an order of DATE the ORG dismissed the applicant on the ground of his refusal to work .","On DATE the bailiff imposed a fine on the head of the personnel department of ORG for his failure to enforce the judgment . ORG challenged the bailiff \u2019s decision in ORG which on DATE stayed the enforcement proceedings pending its decision . The applicant \u2019s request to join the proceedings and his appeal against the decision to stay the enforcement were rejected . On DATE ORG found the bailiff \u2019s decision imposing the fine lawful .","On DATE the ORG quashed their order of DATE on the applicant \u2019s dismissal and ordered his reinstatement with his place of work in the central office of ORG . The applicant was paid remuneration for the preceding period and compensation for the late payment . On DATE the Ministry fixed the applicant \u2019s remuneration which included an allowance for his diplomatic rank of an attach\u00e9 and an allowance for work with information involving ORG secret .","By a decision of DATE the bailiff discontinued the enforcement proceedings in view of the enforcement of the judgment .","On DATE the applicant appealed against the bailiff \u2019s decision to discontinue the proceedings . On DATE ORG rejected the applicant \u2019s appeal and upheld the bailiff \u2019s decision . It found that the term of the applicant \u2019s assignment to the embassy in GPE had expired on DATE and that thereafter the ORG had provided him with work in its central office in accordance with the labour law requirements . It held that the judgment of DATE as upheld on DATE had been fully enforced . On DATE ORG upheld the judgment of DATE .","On DATE the applicant brought an action challenging the ORG \u2019s order of CARDINAL DATE by which he had been dismissed on the ground of his refusal to work .","On DATE the Presnenskiy District Court of GPE found for the applicant . The enforcement proceedings were brought on DATE and discontinued on DATE in view of the applicant \u2019s actual reinstatement . The applicant \u2019s appeal to ORG against the termination of the enforcement proceedings is pending . The judgment of CARDINAL DATE was upheld on appeal by ORG on DATE .","On DATE the applicant was dismissed from ORG on the ground of his absence from work . On DATE he brought proceedings in the ORG of GPE to challenge his dismissal . On DATE ORG found for ORG . The applicant lodged an appeal against the judgment . The proceedings are pending .","On DATE the applicant brought proceedings claiming pecuniary and nonpecuniary damages caused by his dismissal in DATE . On DATE the Presnenskiy District Court of GPE stayed the proceedings pending the outcome of the first set of proceedings concerning the applicant \u2019s reinstatement .","On DATE ORG granted the applicant \u2019s claims in part and ordered ORG to pay the applicant MONEY ( \u201c RUR \u201d ) in damages , including the applicant \u2019s salary for the period between the date of his dismissal in DATE and DATE . On DATE ORG corrected the judgment stating that the amount awarded to the applicant was RUR CARDINAL . On DATE ORG dismissed the applicant \u2019s appeal and upheld the judgment .","On DATE the applicant applied for the enforcement of the judgment of DATE , as amended on DATE and upheld on DATE . On DATE the bailiff brought enforcement proceedings . ORG considered that the applicant should have submitted the writ of execution to ORG in accordance with the procedure provided by the applicable legislation .","On DATE the bailiff ordered that the ORG \u2019s money on their bank account be seized in order to enforce the judgment . Following the Ministry \u2019s appeal against the bailiff \u2019s decision , on DATE ORG stayed the enforcement proceedings . By a decision of DATE the ORG quashed the bailiff \u2019s decision of CARDINAL DATE as unlawful .","On DATE the applicant lodged a request for reopening the case in view of newly - discovered circumstances . On DATE the Presnenskiy District Court of GPE granted the applicant \u2019s request , quashed the judgment of DATE , as amended on DATE and upheld on DATE , and ordered a fresh examination of the case . On DATE ORG granted the applicant \u2019s request for withdrawing the writ of execution issued in respect of the judgment of DATE , as amended on DATE and upheld on DATE .","Hearings listed for DATE and DATE did not take place since the applicant , who had been duly notified of the hearings , had failed to appear . On DATE ORG of GPE ordered that the case not be examined on the ground of the applicant \u2019s failure to appear in court . The applicant did not appeal and the decision became final on DATE .","On DATE the applicant brought proceedings claiming his remuneration and damages for the period after DATE . On DATE ORG granted his claims in part and ordered the Ministry to pay him RUR CARDINAL,CARDINAL.CARDINAL covering the salary arrears for the period between DATE and DATE . Following the applicant \u2019s appeal the ORG quashed the judgment on DATE and remitted the case to the firstinstance court for a fresh examination .","In DATE the applicant submitted new claims for the payment of his salary until then . In DATE he requested to seize the ORG \u2019s bank accounts . The request was dismissed by a final decision of ORG of DATE . In DATE the applicant submitted new claims concerning his salary arrears . The proceedings are pending .","The applicant also brought other proceedings concerning his disputes with his employer .","Thus , on DATE the applicant lodged an application with ORG of GPE challenging the constitutionality of the Government \u2019s regulations which laid down terms and conditions of service for ORG employees abroad . On DATE the secretariat of the court informed the applicant that the court did not have jurisdiction to examine the constitutionality of by - laws , that it dealt exclusively with the issues of the constitutionality of laws , and that therefore his application could not be examined .","On DATE the applicant lodged an application before ORG of the Russian Federation challenging the lawfulness of the same regulations . On DATE ORG terminated the proceedings because the Government had quashed the regulations in issue . The applicant \u2019s appeal was dismissed on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77072","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF PRISYAZHNIKOVA AND DOLGOPOLOV v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial awards;Non-pecuniary damage - financial awards","judges":"Christos Rozakis","text":["The applicants were born DATE and DATE respectively , and live in GPE in the Sakha ( GPE of GPE .","The applicants brought a civil action against the ORG , seeking to enforce ORG promissory notes for purchase of a NORP - made car or to recover the monetary value thereof .","On DATE the Ust - Yanskiy District Court of the Sakha ( GPE Republic found for the applicants and awarded MONEY ( \u201c RUR \u201d ) to the first applicant and RUR CARDINAL,CARDINAL.CARDINAL to the second applicant against ORG .","On DATE ORG of the Sakha ( GPE Republic ( hereinafter DATE \u201c the ORG \u201d ) rejected an appeal by ORG and upheld the judgment .","The enforcement proceedings were opened on CARDINAL DATE , but the judgment was not enforced .","NORP By interim decision of CARDINAL DATE , Judge NORP of ORG of the Sakha ( GPE ) Republic refused a request by ORG for obtaining the case file for the purpose of initiating supervisory - review proceedings . ORG had claimed that the courts had incorrectly applied the substantive law .","By letter of DATE , ORG President rejected a renewed request by ORG for launching the supervisory - review proceedings .","On DATE ORG introduced a new application for supervisory review of the judgments in the applicants ' favour , founded on the same grounds as before .","On DATE ORG President issued an interim decision on remitting the applicants ' cases for examination on the merits to ORG by way of supervisory review . In the procedural part , the interim decision of CARDINAL DATE , but not the letter of DATE , was mentioned .","On DATE the Presidium of ORG of the Sakha ( GPE ) Republic , in a CARDINAL - judge formation presided over by ORG President , found that the lower courts had not taken into account certain provisions relating to reimbursement of ORG promissory notes . On that ground , relying on Articles CARDINAL and CARDINAL of the Code of Civil Procedure , the ORG quashed the judgments in the applicants ' favour and dismissed their claim as having no basis in the domestic law .","A judicial decision becomes legally binding after the appeal court has examined the matter ( LAW ) . A judicial decision must be enforced once it became legally binding , unless the law provides for its immediate enforcement ( LAW ) .","The relevant provisions governing the supervisory - review proceedings read as follows :","\u201c CARDINAL . Courts may issue judicial decisions in the form of judicial orders , judgments and interim decisions ... \u201d","\u201c CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .","Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... \u201d","\u201c An application for supervisory review must contain :","( CARDINAL ) the name of the court to which it is addressed ;","...","( CARDINAL ) a reference to the first - instance , appeal or cassation courts that examined the case and a summary of their decisions ;","( CARDINAL ) a reference to the judgment or decision which is being appealed against ... \u201d","\u201c CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on \u2013","( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;","( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .","...","NORP The President of the regional ORG ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . \u201d","\u201c CARDINAL . Having examined the case file obtained by the supervisory - review court , the judge issues an interim decision on \u2013","\u2013 refusing to remit the case for examination on the merits by the supervisory - review court ;","\u2013 remitting the case for examination of the application for supervisory review on the merits by the supervisory - review court . \u201d","\u201c CARDINAL . NORP The President of the regional ORG ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory - review court . \u201d","\u201c CARDINAL . A judicial decision on remitting the case for examination on the merits by a supervisory - review court must contain :","( CARDINAL ) a reasoned description of the grounds for remitting the case for examination on the merits ... \u201d","\u201c CARDINAL . Having examined the case by way of supervisory review , the court may","...","( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if substantive legal provisions have been erroneously applied or interpreted . \u201d","Once instituted , enforcement proceedings must be completed within DATE upon receipt of the writ of execution by the bailiff ( Section CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86071","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2008,"docname":"CASE OF SUDYIN v. UKRAINE","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych","text":["The applicant was born in DATE and lives in GPE . At the material time he was a tax inspector .","On DATE ORG of Donetsk ( hereinafter \u201c the ORG \u201d ) fined the applicant ORG CARDINAL under an administrative procedure for a corruption offence . The applicant was consequently dismissed from his position .","On DATE the ORG quashed this judgment and terminated the proceedings .","On DATE ORG awarded the applicant UAH CARDINAL in compensation for moral damage to be paid by ORG of GPE .","This judgment was not appealed and became final on DATE .","NORP In DATE ORG in GPE initiated the enforcement proceedings .","On DATE the writ of execution was transferred to ORG in GPE , which on DATE refused to open the enforcement proceedings and transferred the writ to ORG ( hereinafter \u201c the GPE \u201d ) .","On DATE the ORG refused to open the enforcement proceedings on the ground that it fell outside of its competence .","NORP Since DATE the enforcement proceedings are pending before ORG of ORG .","The judgment of CARDINAL DATE remains unenforced .","The relevant domestic law is summarised in the judgment of PERSON v. GPE ( no . PERSON , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70170","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF SEVG\u0130N AND \u0130NCE v. TURKEY","importance":4,"conclusion":"No violation of Art. 3;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1 (composition of state security court);Not necessary to examine remaining complaints under Art. 6;No violation of Art. 13;No violation of Art. 14;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings","judges":"","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the applicant was taken into custody by the security forces at ORG .","In a report drafted by the gendarmes and signed by the applicant on DATE , it was stated that he was taken into custody on the basis of information contained in a document found on a ORG terrorist .","NORP In his statement taken by the gendarmes on DATE the applicant confessed in detail to his involvement in the activities of the ORG .","On DATE the applicant and CARDINAL others were examined by a doctor at ORG , who concluded there were no traces of blows on their bodies .","Later on DATE , the applicant was first brought before ORG then before the judge at ORG where he refuted his statements dated DATE and he contested his involvement in the activities of the ORG . He confessed to having possessed a PERSON rifle without a permit . The court ordered his detention on remand .","In his petition dated DATE filed with ORG , the applicant alleged that he had been severely tortured for DATE while in police custody . He stated that he had been told to strip , blindfolded , severely beaten and strung up by his arms . Moreover , he objected to the court \u2019s decision to detain him on remand .","On an unspecified date ORG issued a decision of non - jurisdiction as the charges against the applicant fell within the competence of ORG .","On DATE ORG at ORG filed a bill of indictment charging the applicant with engaging in acts aimed at the separation of a part of the territory of the ORG , under LAW and LAW .","At the hearing held on DATE , the applicant denied the allegations against him and claimed that he had been forced to sign the statements drafted in police custody . The court refused the applicant \u2019s request for release pending trial , in view of the state of the evidence and the nature of the offence of which he was accused . It further decided to join the applicant \u2019s case to the second applicant \u2019s case , as they raised similar issues .","On DATE the applicant was taken into custody by the security forces at ORG . According to the arrest report drafted by the gendarmes and signed by the applicant , he was taken into custody in the village of PERSON in the course of an investigation concerning the ORG .","On DATE the applicant took the police officers of ORG of the Siirt Security Directorate to where he was hiding weaponry , namely a PERSON rifle , a hand grenade and bullets . The police officers later drafted an on - site inspection report , describing the location of the hideout and the weapons found there .","In his statement taken by the gendarmes on DATE , the applicant confessed in detail to his involvement in the activities of the ORG .","On DATE the applicant and CARDINAL other suspects were taken to ORG for an examination . According to the medical report drafted on DATE , no traces of blows were found on the applicant \u2019s body .","On DATE , the applicant was brought before ORG where he accepted having possessed a rifle , a hand grenade and bullets , but denied having participated in the activities of the ORG . Later he was brought before ORG where he reiterated that he had no involvement in the activities of the ORG . The court ordered his detention on remand .","In a petition dated DATE filed with ORG , the applicant refuted all the charges brought against him and requested to be released . He alleged that while he was held in police custody , he had had to accept all the allegations against him as he had been severely tortured . Moreover , he maintained that , as the police officers had threatened him , he was afraid to complain about these acts before the public prosecutor and the judge at the criminal court .","On an unspecified date , ORG issued a decision of lack of jurisdiction as the charges against the applicant fell within the competence of ORG .","On DATE the public prosecutor filed a bill of indictment with ORG , accusing the applicant and CARDINAL others of having engaged in acts aimed at the separation of a part of the territory of the ORG . The public prosecutor requested that the applicant be convicted and sentenced under LAW \u00a7 CARDINAL of LAW and LAW .","On DATE , upon the request of the judge at ORG , ORG took the statements of QUANTITY police officers from ORG of ORG , who had questioned the second applicant and had drafted the on - site inspection report . The police officers described the course of events during the on - site inspection . They also maintained that no pressure had been inflicted on the accused .","At the hearing of CARDINAL DATE , the applicants were not present before ORG . It therefore issued summonses to them for the next hearing , scheduled for DATE . The court requested that a ballistic examination be carried out by ORG concerning the rifle found in the possession of the second applicant . It continued the applicants\u2019 remand in custody pending trial , but released CARDINAL other accused persons .","At the hearing of CARDINAL DATE , some of the accused , including the applicants , were present in court . The statements of the police officers who had signed the on - site inspection report were submitted to the court . The court also heard CARDINAL defence witnesses and asked the accused for their comments . The lawyers of both applicants maintained that they did not have any comments to make concerning these statements . They also demanded the applicants\u2019 release pending trial , contending that the accusations brought against them were unfounded . The court ordered the prolongation of their detention on remand considering the nature of the charges and the content of the case - file .","At the CARDINAL subsequent hearings which were held DATE and DATE , ORG was unable to reach a decision as the relevant ballistic report had not been received . At each hearing , the court rejected the ORG requests for release pending trial , in view of the state of the evidence and the nature of the offence .","On DATE the court received the ballistic report . At the following hearing , held on DATE , the public prosecutor submitted his opinion on the merits . He proposed that the applicants be convicted and sentenced under LAW of LAW and LAW . The court rejected once again the ORG request for release pending trial because of the serious nature of the charges and the state of the evidence .","At the hearing of CARDINAL DATE , ORG was unable to give a final decision as the prison authorities had failed to bring the first applicant to court . On DATE and CARDINAL DATE , the court rescheduled the hearing to a later date in order to obtain this applicant \u2019s final statements .","On DATE the prison authorities again failed to bring the first applicant before ORG . His lawyer maintained that the applicant was absent against his will and requested the court to postpone the hearing in order to take his last statements . The second applicant repeated his previous statements . The court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the ORG . The court sentenced them to DATE and QUANTITY months\u2019 imprisonment under LAW of LAW and LAW . The decision was given in the absence of the first applicant .","The applicants appealed against the decision of ORG .","On DATE ORG quashed the decision on the ground that ORG did not respect the rights of defence during the proceedings . It emphasized in its decision that the court had convicted the first applicant in his absence , depriving him of his right to submit his final defence . It held that , due to the close connection between the accused , it was appropriate to quash the decision in favour of all the accused .","On DATE ORG served a summons on the applicants for the following hearing .","On DATE the court sent a notice to ORG to ascertain the prison in which the applicants were detained and the address of CARDINAL of the accused who were released pending trial . Moreover , it requested the population registry office to confirm the apparent death of CARDINAL of the accused .","At the hearing of DATE the court requested the transfer of the applicants , who were detained in GPE and GPE prisons , to FAC .","On DATE the court postponed the hearing once again as the applicants were still not present and the addresses of the other accused were not yet known to the court .","On DATE and DATE the applicants were present before the court . They submitted their opinion concerning the decision of ORG . However , as the other accused , who had been released pending trial , failed to appear , the court was once again unable to reach its final decision .","The applicants did not attend the following CARDINAL hearings . According to the prison records it was their express wish to not to attend . Moreover during this period neither the office of the public prosecutor nor the population register office submitted to the court the requested information concerning the other accused .","At the hearing of DATE , in the presence of only the ORG lawyers , ORG gave its final decision . It convicted the applicants as charged and sentenced them to DATE and QUANTITY months\u2019 imprisonment . It acquitted CARDINAL of the accused and decided to sever the case concerning the others whose addresses were still unknown to the court .","On DATE the applicants appealed to ORG . In their petition they maintained that , according to LAW ( a ) of the Code on Criminal Procedure , statements that are obtained using forbidden methods , such as torture , pressure or ill - treatment , can not be taken into consideration by the court . They contended that they had signed their statements under pressure , without knowing their contents . They therefore requested the quashing of ORG decision , arguing that it was mainly based on their statements taken in police custody .","On DATE ORG upheld the decision of the first instance court ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","5-5","6-1"],"violated_bulletpoints":[],"non_violated_articles":["13","14","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82580","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF HASAN AND EYLEM ZENG\u0130N v. TURKEY","importance":2,"conclusion":"Violation of P1-2;No separate issue under Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"","text":["PERSON , who was born in DATE , and his daughter PERSON , who was born in DATE , live in GPE .","At the time PERSON lodged the application on his own and his daughter 's behalf , she was attending the seventh grade of the state school in GPE , GPE .","PERSON stated that his family were adherents of ORG .","Alevism originated in central LOC but developed largely in GPE . CARDINAL important Sufis had a considerable impact on the emergence of this religious movement : PERSON DATE ) and PERSON ( DATE ) . This belief system , which has deep roots in NORP society and history , is generally considered as one of the branches of ORG , influenced in particular by NORP and by certain pre - NORP beliefs . Its religious practices differ from those of the NORP schools of law in certain aspects such as prayer , fasting and pilgrimage .","According to the applicant , ORG is a belief or philosophy influenced by other cultures , religions and philosophies . It represents one of the most widespread faiths in GPE after the ORG branch of ORG . It advocates close contact with nature , tolerance , modesty and love for one 's neighbour , within the NORP faith . PERSON reject the sharia ( code of laws in orthodox ORG ) and the sunna ( forms of behaviour and formal rules of orthodox ORG ) and defend freedom of religion , human rights , women 's rights , humanism , democracy , rationalism , modernism , universalism , tolerance and secularism . PERSON do not pray by the NORP rite ( in particular , they do not comply with the obligation to pray CARDINAL times DATE ) but express their devotion through religious songs and dances ( semah ) ; they do not attend FAC , but meet regularly in cemevi ( meeting and worship rooms ) for ritual ceremonies . Equally , PERSON do not consider the pilgrimage to GPE as a religious obligation . They believe that Allah is present in each person . According to ORG , Allah created PERSON in his image and all his manifestations in this world are in human form . Allah is neither in the sky nor in paradise , but in the centre of the human heart .","On DATE the applicant submitted a request to ORG ( \u201c the ORG \u201d ) at ORG , seeking to have his daughter exempted from religious culture and ethics classes . Pointing out that his family were followers of ORG , he stressed that , under international treaties such as , for example , LAW , parents had the right to choose the type of education their children were to receive . In addition , he alleged that the compulsory course in religious culture and ethics was incompatible with the principle of secularism .","On DATE the ORG replied that it was impossible to grant the exemption request . In particular , it stated :","\u201c ... LAW states that ' ORG and instruction in religion and ethics shall be conducted under ORG supervision and control . Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools . Other religious education and instruction shall be subject to the individual 's own desire , and in the case of minors , to the request of their legal representatives . '","LAW ( Law no . DATE ) ... provides that ' secularism shall be the basis of NORP national education . Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools , and in schools of these levels . ' \u201d","For these reasons , your request can not be granted . \u201d","Following the ORG 's refusal , the applicant applied to ORG for judicial review . He alleged that the compulsory classes in religious culture and ethics were essentially based on the fundamental rules of ORG and that no teaching was given on his own faith . He challenged , inter alia , the compulsory nature of this school subject .","In a decision of DATE , ORG dismissed the applicant 's request , holding , inter alia :","\u201c LAW has established that religious culture and ethics are among the compulsory subjects taught in primary and secondary schools , and section CARDINAL of Law no . DATE [ states ] that religious culture and ethics are among the compulsory subjects taught in primary and upper secondary schools of the equivalent level .","In this context , the dismissal of the plaintiff 's request is not contrary to the law ... \u201d","The applicant appealed on points of law against that judgment , relying , inter alia , on the Convention .","In a judgment of DATE , served on CARDINAL DATE , ORG dismissed his appeal and upheld the first - instance judgment , holding that the latter complied with the procedural rules and the legislation .","DATE , in so far as relevant , provides :","\u201c CARDINAL . Everyone has the right to freedom of conscience , religious belief and conviction .","Acts of worship , religious services , and ceremonies shall be conducted freely , provided that they do not violate the provisions of LAW .","No one shall be compelled to worship , or to participate in religious ceremonies and rites , to reveal religious beliefs and convictions , or be blamed or accused because of his religious beliefs and convictions .","Education and instruction in religion and ethics shall be conducted under ORG supervision and control . Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools . Other religious education and instruction shall be subject to the individual 's own desire , and in the case of minors , to the request of their legal representatives .","No one shall be allowed to exploit or abuse religion or religious feelings , or things held sacred by religion , in any manner whatsoever , for the purpose of personal or political influence , or for even partially basing the fundamental , social , economic , political , and legal order of the ORG on religious tenets . \u201d","Section CARDINAL of LAW ( Law no . DATE ) provides :","\u201c Secularism is the basis of NORP state education . Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools and in schools of an equivalent level . \u201d","On DATE ORG adopted a decision on religious culture and ethics classes and pupils who were entitled to exemption from them . It stated :","\u201c Following the proposal by ORG , pupils of NORP nationality who belong to the NORP or NORP religions and who attend primary and secondary schools , with the exception of schools for minorities , are not obliged to follow the classes in religious culture and ethics , provided they affirm their adherence to those religions . If , however , such pupils wish to attend such classes , they must submit a written request from their legal representative . \u201d","At the hearing the Government explained that this exemption procedure could be extended to other religious or philosophical convictions , such as atheism , without however producing specific examples .","Since DATE compulsory state education has lasted DATE ( instead of DATE ) for children aged DATE ; DATE correspond to primary school ( CARDINALst to CARDINALth grade ) and the following CARDINAL to secondary school ( CARDINALth to CARDINALth grade ) .","NORP In decision no . CARDINAL of DATE , the Minister of ORG approved the guidelines for classes in religious culture and ethics ( taught in grades CARDINAL , CARDINAL , DATE , DATE and CARDINAL) .","The principles adopted in this connection are as follows :","\u201c ... DATE , when intercultural influence is increasing , it has become necessary , in order to foster a culture of peace and a context of tolerance to know about other religions .","For this reason , the school syllabus ... ;","... includes teaching [ to the effect ] that the aim of all religions is to educate upright individuals . [ Religious instruction also aims to educate people ] who are informed about the historical development of ORG , NORP , NORP and ORG , their main features and the content of their doctrine , and to be able to assess , using objective criteria , the position of ORG in relation to ORG and NORP ...","NORP The principles to be observed during the teaching and learning experience ...","Always bear in mind the principle of secularism . There should be no infringement of freedom of religion , conscience , thought and expression .","Emphasise that differences in religious understanding and practice are of value .","Take advantage , in so far as possible , of pupils ' feelings and behaviour in order to socialise them and to educate them as good citizens through religious and ethical knowledge .","Seek to ensure that pupils internalise the principles of love , respect , fraternity and friendship , which strengthen national unity and union , and national concepts and values such as the homeland , the nation , the flag , the martyr ...","Emphasise that religion is one of the important principles of the national culture .","...","Teach the concept of worship in the wide sense ; that work , cleanliness and high moral standards are ways of worshipping ...","Make pupils aware that acts of worship , as well as being demonstrations of love , respect and gratitude towards Allah , enable the individuals in a group to bond in love and respect , to help each other , to show solidarity ...","When studying subjects related to the prophet PERSON , provide examples concerning his morality .","...","Base lesson material on verses [ from the Koran ] and relevant sayings and traditions [ of PERSON ] ... , the passages for reading should be illustrated by stories and images .","NORP Throughout the entire teaching process , make a careful distinction , in covering topics and the choice of examples , between those from the Koran and those developed subsequently . To this end , taking into account public and community events , emphasise those which have their source in the Koran and those which result from habit , customs , tradition , beliefs , lifestyles and cultural influence .","...","Using different examples , explain that , far from being a myth , ORG is a rational and universal religion .","...","CARDINALth grade ... Units : Unit CARDINAL \u2013 Knowledge of the Koran . Unit DATE Religion is good morals . Unit DATE and sacrifice . Unit TIME and other invisible beings . Unit CARDINAL \u2013 Belief in the other world . Unit DATE Our family . Unit DATE Knowledge of religions ... \u201d","The applicants submitted CARDINAL textbooks , for grades CARDINAL , CARDINAL , DATE , DATE and CARDINAL , on religious culture and ethics . They are used in schools , having been authorised by ORG .","In the CARDINALth grade textbook , instruction moved from the concept of religion to examine the relationship between morality and religion , the Creator and the creature , the family and religion , and knowledge of the life of the prophet PERSON .","The CARDINALth grade textbook begins by explaining the meaning of the expression \u201c I believe in God \u201d . It focuses particularly on teaching the fundamental concepts of ORG : the profession of faith , prayer , the mosque as the place of worship , the nature of the prayers recited during DATE , the prophet PERSON 's family life . A general overview is given of the prophets whose names appear in the Koran .","The CARDINALth grade textbook begins by covering the different DATE prayers . It is explained that every NORP is obliged to pray CARDINAL times DATE . The corresponding rituals are illustrated in the book , which then deals with subjects such as charity , love for the homeland and the nation , harmful behaviour , friendship and brotherhood , and the CARDINAL holy books , namely the NORP , the PERSON ( psalms ) , the Gospels and the Koran .","The CARDINALth grade textbook emphasises knowledge of the Koran , the link between religion and high moral standards , pilgrimage and sacrifice , angels and invisible creatures , belief in the other world and the family . In addition , the main religions , namely ORG , NORP , ORG , NORP and NORP , are presented over CARDINAL pages .","The CARDINALth grade textbook discusses the prophet PERSON 's high moral standards , culture and religion , the concepts of religion , reason and science , belief in fate and the link between faith and conduct . Subjects such as \u201c differences in approach in religion \u201d , \u201c advice of religions and of NORP \u201d , \u201c secularism \u201d , \u201c freedom of religion and conviction \u201d are also covered in this book .","It appears from reading these textbooks that the pupils are also required to learn several suras from the Koran by heart .","For their part , the ORG submitted the textbook for the CARDINALth grade ( DATE of upper secondary school ) .","This textbook begins by dealing with man 's place in the universe . It subsequently covers topics such as human nature and religion , the role of religion in human life and the various forms of belief , namely monotheism , polytheism , Gnosticism , agnosticism and atheism . Explanations are also provided for various concepts , such as prayer and the link between prayer and cleanliness ; this chapter illustrates the rituals surrounding the partial and total ablutions in ORG ( gusul and abdest ) . In addition , certain essential elements , such as the life of PERSON , the Koran and fundamental concepts ( interpretation , the suras , etc . ) , are described with the aim of providing information on ORG . The rest of the textbook deals primarily with the concepts of \u201c values and family \u201d , \u201c the homeland , flag , freedom , independence , human rights , secularism , the secular ORG , PERSON and secularism , etc \u201d . Finally , it deals with the subject of \u201c the NORP and NORP \u201d in the context of NORP history ; this chapter examines the NORP ' former beliefs , such as the concept of \u201c God - heaven \u201d , Manichaeism , Buddhism , the NORP religion and NORP . Individuals who influenced the NORP ' understanding of ORG are also discussed , in particular PERSON ( born CARDINAL , died CARDINAL , founder of the ORG school ) and NORP \u015eafii ( born ORG , died CARDINAL , founder of ORG ) , as well as PERSON and PERSON ( see paragraph CARDINAL above ) .","The Government also explained that pupils were assessed in this subject only by written examinations .","The relevant passage of LAW provides :","\u201c CARDINAL . The GPE Parties to the present LAW undertake to have respect for the liberty of parents and , when applicable , legal guardians to ensure the religious and moral education of their children in conformity with their own convictions . \u201d","In Recommendation CARDINAL ( DATE ) on religion and democracy , adopted on DATE , the ORG recommended that ORG invite the governments of the member States , inter alia :","\u201c CARDINAL . ... ( ii ) to promote education about religions and , in particular , to :","( a ) NORP step up the teaching about religions as sets of values towards which young people must develop a discerning approach , within the framework of education on ethics and democratic citizenship ;","( b ) promote the teaching in schools of the comparative history of different religions , stressing their origins , the similarities in some of their values and the diversity of their customs , traditions , festivals , and so on ; ...","( e ) avoid DATE in the case of children \u2013 any conflict between the state - promoted education about religion and the religious faith of the families , in order to respect the free decision of the families in this very sensitive matter ... \u201d","In Recommendation DATE ) , adopted on DATE , the ORG recommended that ORG encourage the governments of member GPE to ensure that religious studies were taught at the primary and secondary levels of state education , on the basis , inter alia , of the following criteria :","\u201c CARDINAL . the aim of this education should be to make pupils discover the religions practised in their own and neighbouring countries , to make them perceive that everyone has the same right to believe that their religion is the \u201c true faith \u201d and that other people are not different human beings through having a different religion or not having a religion at all ;","it should include , with complete impartiality , the history of the main religions , as well as the option of having no religion ;","it should provide young people with educational tools that enable them to be quite secure in approaching supporters of a fanatical religious practice ;","it must not overstep the borderline between the realms of culture and worship , even where a country with a state religion is concerned . It is not a matter of instilling a faith but of making young people understand why religions are sources of faith for CARDINAL ;","NORP teachers on religions need to have specific training . They should be teachers of a cultural or literary discipline . However , specialists in another discipline could be made responsible for this education ;","the state authorities should look after teacher training and lay down the syllabuses which should be adapted to each country 's peculiarities and to the pupils ' ages . In devising these programmes , ORG will consult all partners concerned , including representatives of the religious faiths . \u201d","ORG against Racism and Intolerance has already given its view on the teaching of religion in schools in General policy recommendation no . CARDINAL on \u201c Combating intolerance and discrimination against NORP \u201d ( ORG ( DATE ) CARDINAL , CARDINAL DATE ) . After reiterating the principles of respect for equality and non - discrimination between religions and recognising the great diversity intrinsic in the practice of ORG , it recommended that the governments of member GPE \u201c ensure that religious instruction in schools respects cultural pluralism and make provision for teacher training to this effect \u201d .","In its third report on GPE ( ORG ( DATE ) , the ORG also considered , in particular , that :","\u201c The syllabus covers all religions and is chiefly designed to give pupils an idea of all existing religions . However , several sources have described these courses as instruction in the principles of the NORP faith rather than a course covering several religious cultures . ORG notes that only NORP pupils are required to follow these courses , while pupils belonging to minority religious groups can be exempted . ECRI considers the situation unclear : if this is indeed a course on the different religious cultures , there is no reason to make it compulsory for NORP children alone . Conversely , if the course is essentially designed to teach the NORP religion , it is a course on a specific religion and should not be compulsory , in order to preserve children 's and their parents ' religious freedom . \u201d","In consequence , ORG urged the NORP authorities :","\u201c ... to reconsider their approach to instruction in religious culture . They should take steps either to make this instruction optional for everyone or to revise its content so as to ensure that it genuinely covers all religious cultures and is no longer perceived as instruction in the NORP religion . \u201d","NORP In LOC , religious education is closely tied in with secular education . Of the CARDINAL ORG member ORG which were examined , CARDINAL provide religious education classes in state schools . Only GPE , GPE ( with the exception of the GPE and GPE regions ) and the former GPE are the exceptions to this rule . In GPE , non - confessional teaching is offered in DATE of state education .","In CARDINAL of the CARDINAL member GPE ( including GPE ) , religious education is a compulsory subject . However , the scope of this obligation varies depending on the ORG . In CARDINAL countries , namely GPE , GPE , GPE , GPE and GPE , the obligation to attend classes in religious education is absolute . All pupils who belong to the religious faith taught in the classes are obliged to follow them , partially or fully . However , GPE allow for exemptions under certain conditions . This is the case in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In the majority of these countries , religious education is denominational .","CARDINAL other countries give pupils the opportunity to choose a substitute lesson in place of compulsory religious education . This is the case in GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In those countries , denominational education is included in the curriculum drawn up by the relevant ministries and pupils are obliged to attend unless they have opted for the substitute lesson proposed .","In contrast , CARDINAL member GPE do not oblige pupils to follow classes in religious education . Religious education is generally authorised in the school system but pupils only attend if they have made a request to that effect . This is what happens in the largest group of ORG : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Finally , in a third group of GPE , pupils are obliged to attend a religious education or substitute class , but always have the option of attending a secular lesson .","This general overview of religious education in LOC shows that , in spite of the variety of teaching methods , almost all of the member GPE offer CARDINAL route by which pupils can opt out of religious education classes ( by providing an exemption mechanism or the option of attending a lesson in a substitute subject , or by giving pupils the choice of whether or not to sign up to a religious studies class ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-87892","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF PROTSENKO v. RUSSIA","importance":2,"conclusion":"No violation of Art. 6-1","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in ORG , GPE .","On DATE the applicant purchased a recreation centre ( \u201c the centre \u201d ) , comprising a group of cottages , from a private company . The centre was situated on a plot of land belonging to a collective farm .","The applicant asked ORG to register the transfer of the title to the centre from the company to her . However , the applicant \u2019s request was dismissed , because the company had not duly registered its title to the centre , and therefore was unable to transfer it to the applicant .","The applicant brought proceedings against the company seeking to obtain acknowledgement of her title to the centre .","On DATE ORG of GPE granted the applicant \u2019s claim .","No ordinary appeal was lodged against the judgment .","On DATE the judgment became final and enforceable .","On DATE the Registration Office registered the applicant \u2019s title to the centre .","On an unspecified date in DATE the collective farm lodged an application for supervisory review of the judgment of DATE . It alleged that the said judgment was unfounded since , even though the collective farm owned the plot on which the centre in question was situated , it had not been invited to take part in the proceedings and its interests had not been taken into consideration by the domestic court .","On DATE ORG remitted the supervisory - review application for examination on its merits by the ORG .","On DATE the Presidium of ORG held a supervisory - review hearing . It held that the first - instance court adopted the judgment with significant violations of substantive and procedural law . In particular , the ORG pointed out that the first - instance court did not investigate that it failed to identify all the parties to the proceedings , to invite the owner of the land to participate in the proceedings and that it had pronounced judgment by which the rights of the latter were considerably affected . On these grounds the ORG quashed the judgment of DATE and remitted the matter for a fresh examination .","On DATE ORG of GPE dismissed the applicant \u2019s claim , declared the purchase agreement void , annulled the registration of the applicant \u2019s title to the centre and restored the parties to their original position .","On DATE the Rostov ORG upheld the above judgment on appeal .","The Code of Civil Procedure of GPE ( \u201c the new Code \u201d ) was enacted on DATE and replaced LAW ( \u201c the old LAW \u201d ) from DATE . It provides as follows :","\u201c CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .","Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... \u201d","\u201c Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . \u201d","\u201c CARDINAL . Having examined the case by way of supervisory review , the court may ...","( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ; ...","( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if substantive legal provisions have been erroneously applied or interpreted . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-121325","languageisocode":"ENG","respondent":"BEL","branch":"ADMISSIBILITY","date":2012,"docname":"SIMONS v. BELGIUM","importance":3,"conclusion":"Inadmissible","judges":"","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON , PERSON and PERSON , lawyers practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , ORG , ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the GPE police were informed that a man had been stabbed with a knife . At the scene , the applicant told the police officers that the victim was her partner and that she herself had inflicted the wounds . The officers found a trail of blood leading to her home , where they discovered other traces of blood and a blood - stained kitchen knife .","The applicant was arrested DATE at TIME She was interviewed by investigators TIME and TIME as a \u201c suspect \u201d . She was not assisted by a lawyer and \u2013 she alleged DATE was not informed beforehand of her right to remain silent , but her rights as provided in the \u201c FAC \u201d of CARDINAL DATE were read to her prior to the interview . She was thus informed that her statements could be used in evidence , that she was entitled to ask for a verbatim record to be made of any questions put to her , together with her answers , and to request any supplementary investigative act or interview , that she could use any documents in her possession , provided the questioning was not delayed , and that , during or after her interview , she could have documents included in the case file or deposited in the registry . The applicant confessed to being the perpetrator of the stabbing and , in response to the ORG questions , gave a detailed account of the incident , explaining in particular that it had followed an argument , of which she described the context and circumstances .","DATE , from TIME to TIME , the applicant was questioned by an investigating judge . She was not assisted by a lawyer and \u2013 she alleged \u2013 was not informed of her right to remain silent . She confirmed the statements she had made to the police . The investigating judge then informed her that she was being charged with attempted murder , with intent , and that she had the \u201c right to choose a lawyer \u201d . He issued a detention order with the following reasoning :","\u201c ... the offence is punishable by a DATE prison sentence , in respect of a lesser indictable offence , or by an even harsher sentence ; ... the maximum duration of the sentence exceeding a CARDINAL-year term of imprisonment ; ... the documentary evidence in the file , the findings of the reporting officers , the witness statements , and the statement and confessions of the person charged , constitute serious indications of guilt ; ... the extreme seriousness of the facts , representing a danger for public safety and entailing bodily harm , requires that a detention order be issued against the person charged ; ... \u201d","The applicant appeared , assisted by her lawyer , on DATE , before ORG ( chambre du conseil ) of ORG , which found the detention order to be lawful and properly served , and remanded her in custody for DATE .","On DATE , after a further appearance by the applicant , ORG ordered the extension of that measure . It did so once again on DATE .","The applicant appealed to ORG of ORG against the order of CARDINAL DATE . Referring to the PERSON v. GPE judgment ( [ ORG ] ( no . DATE ) , the GPE v. GPE judgment ( no . CARDINAL\/CARDINAL , ECHR DATE ) and the PERSON v. GPE decision ( no . CARDINAL\/CARDINAL , DATE ) , her counsel argued that the fact that the applicant had not been assisted by a lawyer during her police interview or her examination by a judge constituted a breach of the right to a fair trial as enshrined in LAW ( c ) of the LAW , and also of LAW , under which any deprivation of liberty had to be \u201c in accordance with a procedure prescribed by law \u201d . Counsel thus submitted that the records of the interview and examination should be removed from the case - file and that the applicant should be released .","In his submissions of DATE , ORG at ORG called on ORG to dismiss those arguments . He observed , in particular , as follows :","\u201c ... in a judgment of CARDINAL DATE ( P.CARDINAL.CARDINAL.F\/CARDINAL ) ... , ORG noted that , having regard to all the statutory safeguards generally afforded to the person charged so as to ensure respect for the defence rights , from the time of the decision to prosecute , it could not be concluded automatically that it was definitely impossible for a person to have a fair trial when the assistance of a lawyer was lacking during the first TIME of deprivation of liberty .","... on a number of occasions ORG has observed that neither LAW nor LAW and CARDINAL of the Convention ... , as interpreted by the ORG ... , obliges investigating divisions to discharge a detention order with immediate effect on that ground alone ( GPE . DATE , P.CARDINAL.CARDINAL.F\/CARDINAL , GPE . DATE , GPE and PERSON . CARDINAL DATE , P.CARDINAL.CARDINAL.F\/CARDINAL ) .","... in a judgment of DATE , confirming its case - law ... ORG further indicated that LAW quinquies and CARDINAL , paragraph CARDINAL , of LAW , concerning the secrecy of the preliminary and judicial investigations , precluded the presence of a lawyer at that stage ( P.CARDINAL.CARDINAL.F\/CARDINAL ) .","... at no stage of the proceedings did the defendant ask to be assisted by a lawyer ...","... furthermore , the decision [ ORG v. GPE ] ... sums up the lessons of the PERSON judgment but finds that the application is inadmissible , as the proceedings have to be considered as a whole ... \u201d .","In a judgment of DATE ORG agreed with ORG on that point , finding that \u201c [ his ] submissions ... fully address[ed ] the arguments for the defence as to the absence of a lawyer during the defendant \u2019s questioning \u201d . It nevertheless ordered the applicant \u2019s release on the ground that public safety no longer required that she be detained .","According to the information provided by the parties , the judicial investigation is still pending and the case is not yet ready for trial .","In the above - cited PERSON case , where the applicant had complained of being prevented from having contact with his lawyer before his examination by the investigating judge , the ORG found that the refusal to allow contact had been \u201c explained by the applicable law as it [ stood ] , namely section CARDINAL(CARDINAL ) of the PERSON of DATE [ on pre - trial detention ] , which [ did ] not provide for assistance by counsel during questioning by the investigating judge or prior thereto \u201d .","Sections DATE and CARDINAL of the Law of DATE on pre - trial detention read as follows :","\u201c \u00a7 CARDINAL . NORP In cases of absolute necessity for public safety alone , and if the act is punishable by a DATE prison sentence , in respect of a lesser indictable offence , or by an even harsher sentence , the investigating judge may make a detention order ...","\u00a7 CARDINAL . Unless the person charged is a fugitive or is evading arrest , the investigating judge shall , before making a detention order , question the person [ on the acts constituting the charges and potentially justifying a detention order ] and hear his or her observations . Failure to question the person charged shall entail his or her release .","The investigating judge shall also inform the person charged of the possibility of an order being made for his or her detention and shall hear his or her observations on that matter . Failure to satisfy these conditions shall entail the person \u2019s release . ... \u201d","\u201c \u00a7 CARDINAL . NORP Immediately after the first examination , the person charged may communicate freely with counsel . ... \u201d .","ORG has , on a number of occasions , been called upon to examine \u2013 both in disputes concerning pre - trial detention and in appeals on points of law against appellate judgments on the merits \u2013 legal argument alleging a violation of LAW ( c ) of the LAW on the ground that the suspect had not received assistance from a lawyer during his or her police custody or while being questioned by the police or investigating judge .","For a long time that court took the view that , although NORP law did not provide for the presence of a lawyer to assist a suspect when he or she was deprived of liberty , this did not automatically entail a violation of the right to a fair trial . In the court \u2019s opinion , the restriction had to be assessed in the light of all the statutory safeguards generally afforded to the accused so as to ensure respect for his or her defence rights from the time of the decision to prosecute : formalities for the suspect \u2019s examination under LAW ; the brevity of the statutory police custody period ( TIME ) ; the immediate remittance to the person charged , when served with a detention order , of all the documents referred to in sections ORG ) and CARDINAL ) of the PERSON of DATE ; the right of the person charged to communicate immediately with counsel in accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) of that law ; access to the case file prior to his or her appearance before the investigating judge , as provided for by section ORG ) of that law ; the presence of counsel for the charged person during the recapitulation interview provided for in section GPE ) of that law ; and the rights granted , in particular , by ORG CARDINAL ter , CARDINAL , CARDINAL quinquies , CARDINAL and CARDINAL bis of LAW . The court found that this series of safeguards prevented the absence of counsel during the first TIME of deprivation of liberty from irretrievably compromising the fair handling of the case ( see , for example , the judgments of CARDINAL May and DATE , P.CARDINAL.CARDINAL.F\/CARDINAL and P.CARDINAL.CARDINAL.N\/CARDINAL ) .","However , in a judgment of DATE ( ORG ) , ORG quashed , for a violation of LAW , a trial court decision that relied on self - incriminating statements given to the police during police custody without any possibility of assistance by a lawyer . It found , in particular , as follows :","\u201c ... The right to a fair trial , as enshrined in LAW ... , implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer","In so far as it allows such access to a lawyer only after the first examination by the investigating judge , section CARDINAL , first paragraph , of the PERSON of DATE on pre - trial detention must be regarded as incompatible with LAW .","The fairness of a criminal trial should be assessed in the light of the proceedings as a whole , ascertaining whether the defence rights have been upheld , examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use , verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy , and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings . ... \u201d","ORG has further found that Articles CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL ( c ) of the Convention do not oblige investigating divisions to discharge a detention order with immediate effect on the sole ground that prior to his or her examination by the investigating judge the person charged had been interviewed by the police and had given a confession to them without being allowed access to counsel from the very first questioning ( see , for example , the judgments of DATE , CARDINAL DATE and DATE , P.CARDINAL.CARDINAL.F\/CARDINAL , GPE and GPE ) .","The relevant domestic law was changed by LAW DATE amending LAW and GPE DATE on pre - trial detention , in order to grant rights , including the right to consult and be assisted by a lawyer , to any person who is questioned or deprived of liberty .","Section CARDINAL of that law provides that before the first interview of a person concerning offences with which he or she might be charged , the person has \u201c the right ... to a confidential consultation with a lawyer of his or her choosing or a lawyer appointed to assist him or her , provided that the potential charges concern an offence that could justify a detention order , with the exception of the offences referred to in section CARDINAL , CARDINAL , CARDINAL bis and QUANTITY .","Section CARDINAL adds a section CARDINAL bis to the PERSON of DATE on pre - trial detention , reading as follows :","\u201c \u00a7 CARDINAL . Anyone who is deprived of liberty pursuant to sections CARDINAL or CARDINAL hereof , or in accordance with a warrant under section CARDINAL , shall be entitled , from that time onwards and prior to the first subsequent interview by the police or , failing that , by ORG or investigating judge , to have a confidential consultation with a lawyer of his choosing . If he has not chosen a lawyer or if that lawyer is unavailable , contact shall be made with the duty service organised by ORG of LANGUAGE - speaking and LANGUAGE - speaking Lawyers , and ORG or , failing that , by the chairman of the Bar or his representative . ...","\u00a7 CARDINAL . The person concerned shall be entitled to receive assistance from a lawyer during the interviews that take place within the time - limit provided for in the preliminary section and sections CARDINAL , CARDINAL , DATE or CARDINAL bis . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102957","languageisocode":"ENG","respondent":"DNK","branch":"CHAMBER","date":2011,"docname":"CASE OF N.S. v. DENMARK","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born on DATE in GPE . He is of NORP ethnicity .","Having been granted family reunification on DATE , by virtue of the former section CARDINAL , subsection CARDINAL(CARDINAL ) , of LAW ( PERSON ) , on DATE , with a valid passport and visa , the applicant joined his GPE wife in GPE . It appears that she had left GPE in DATE and stayed in GPE before , at some unknown time , she was granted asylum in GPE , apparently due to her connections with the ORG .","CARDINAL children were born to DATE .","By a judgment of DATE by ORG in T\u00f8nder ( ORG ) , upheld on appeal on DATE by ORG ) , the applicant was convicted of the sexual abuse of a girl who was DATE . He was sentenced to DATE imprisonment and expelled with a prohibition on returning .","The applicant did not request leave to appeal against the judgment to ORG ( H\u00f8jesteret ) .","The applicant finished serving his prison sentence on DATE .","In the meantime , on DATE the applicant requested asylum under section CARDINAL of LAW and maintained in support thereof , inter alia , that his CARDINAL siblings , CARDINAL of whom were dead , had been members of ORG ( NORP ) . He had not been a member of any organisation in GPE .","According to an interview report of CARDINAL DATE prepared by ORG , the applicant added that until he turned DATE , he had been a fisherman . Then he had married and been reunited with his family in GPE in DATE . When the applicant went to school , persons from the ORG had come up and asked him if he could dig holes , move things and carry out various jobs . The applicant took no part in action , exercises or military training . He assisted the NORP on a full - time basis for DATE . During this period he stayed with the ORG all the time . Thereafter he moved back to his family without telling the NORP . Confronted with the fact that he had previously stated that he had no involvement with the NORP , he maintained that his statement had been translated incorrectly . He had assisted the ORG from DATE but had not been a member . He did not recall whether he had been wanted by GPE authorities but he had been arrested by them CARDINAL times . When asked why he had not previously mentioned the arrests , he stated that most of the arrests had been of TIME duration but that the last one had lasted DATE . It was in DATE when he was arrested in connection with the mass arrest . He remembered being released after DATE as a result of a peace agreement but his memory was not very good . Whenever he had been arrested the authorities asked him whether he was working for the NORP . He had denied this , although this was the period during which he had worked for the organisation . Confronted with the fact that he had previously stated that he would not risk any harm upon return to GPE as he was neither wanted nor persecuted , the applicant submitted that this must have been a misunderstanding .","On DATE the applicant 's application for asylum was refused by ORG ) , finding that he lacked credibility and that there was no substantiated risk that he would be subjected to treatment contrary to LAW upon return .","The applicant appealed to ORG ( PERSON ) before which , during an oral hearing held on DATE , he explained for example that the ORG had approached him numerous times DATE to ask him to work for them , which he did , but he had not been a member of the LTTE . The last time he assisted them was in DATE . The applicant left in DATE .","By decision of DATE ORG refused to grant the applicant asylum . It noted that the applicant had expanded his motive for requesting asylum and had submitted various divergent explanations . Moreover , even disregarding the fact that the applicant had made various unclear statements about the dates , number and duration of his detention by the authorities , it could be considered a fact that he was last detained in DATE , which was DATE before his departure , in connection with a mass arrest ; that he was released in connection with a peace agreement ; that he was never charged or sentenced ; and that he had been able to leave GPE in DATE on a valid passport without any problems . ORG did not find that the applicant had substantiated being at risk of persecution by the Sri NORP authorities or the NORP upon return . Finally , it observed that the general situation in GPE for NORP coming from the north and east of the country could not alone justify the granting of asylum , and that the applicant 's case had been assessed on its concrete and particular circumstances .","On DATE , upon the applicant 's request , ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to GPE pending the ORG 's decision .","On DATE ORG refused the applicant 's request to reopen the case .","On DATE ORG decided to suspend the examination of asylum cases concerning NORP from northern GPE , including the applicant 's case .","On DATE , on the basis of the most recent background information concerning GPE including , inter alia , a Memorandum of CARDINAL DATE prepared by ORG , ORG decided to review the suspended cases , including the applicant 's case .","On DATE ORG refused to reopen the applicant 's case as it found that the most recent general background information would not lead to a revised assessment of the case . More specifically in its letter to the applicant 's representative it stated as follows :","... In its decision of DATE , ORG found ... ORG still finds that your client 's fear of being forcibly recruited by the ORG or of being subjected to outrages by the ORG as a result of having fled from the ORG does not warrant a residence permit under section CARDINAL of LAW . In this connection , ORG emphasises that your client 's statements about his alleged connection with the ORG were extended during the asylum proceedings and were diverging in essential areas . In this connection , ORG also refers to the fact that the Sri NORP military forces defeated the NORP in DATE . Moreover , ORG refers to the background information available to ORG from which it appears that it is hardly likely that former low - ranking members of the ORG or persons who have previously supported the ORG will risk reprisals from the NORP , see GPE ORG , Operational Guidance Note , GPE , DATE . Regardless of whether your client 's information about his previous activities for the ORG is considered a fact , ORG stills find that your client would not risk persecution or being subjected to outrages as covered by section CARDINAL of LAW by the Sri NORP authorities if returned to GPE , including in connection with his arrival at GPE airport . ORG emphasizes that from his detention in DATE , where his photo was taken , and until his departure in DATE your client has not been detained or had his picture or fingerprint taken or in any other way been the object of interest from LOC authorities . The authorities have thus not carried out any acts aimed at your client that indicated that he was suspected of being a member of the NORP . In this connection , ORG also refers to the fact that your client departed lawfully from GPE with his own GPE national passport for the purpose of family reunification with his spouse . Similarly , ORG refers to the background material available to ORG , according to which persons who have previously supported the ORG on a lower level are generally not of interest to the authorities , see GPE ORG , Operational Guidance Note , GPE , DATE , and see GPE ORG to GPE , GPE DATE . Against that background ORG also finds that the fact that one or more of your client 's siblings have been members of or active for the ORG can not warrant a residence permit under section CARDINAL of LAW , according to the background information now available . The fact that as an ethnic GPE from northern GPE your client may risk being questioned and investigated by the authorities on entry into the country can not lead to a revised assessment of the case under asylum law . In this assessment , consideration has been given to the background information available to ORG , according to which the individuals at particular risk of being detained and investigated upon entry in GPE are young NORP , men in particular , from northern and eastern GPE , those without identification or residence in GPE , and those recently returned from the LOC , see GPE ORG to GPE , GPE CARDINAL DATE . In this connection the ORG refers to its finding that it has not been rendered probable that your client would be an object of particular interest to the GPE authorities . As in its decision of DATE , ORG still finds that the general situation in GPE is not of such nature as to warrant in itself the grant of a residence permit under section CARDINAL of LAW . The ORG observes in that connection that it is a condition for a residence permit under section CARDINAL of LAW that , upon a specific , individual assessment , an alien is deemed at risk of persecution or outrages . The authority of ORG is restricted to deciding asylum - relevant issues , and it is thus outside the ORG 's authority to determine whether an alien who does not meet the conditions of section CARDINAL of LAW may be issued with a residence permit for other reasons of a more humanitarian nature . Against that background and in accordance with the ORG 's decision of DATE , ORG still finds that it has not been rendered probable that , in case of return to GPE , your client would be at concrete and individual risk of persecution as covered by section CARDINAL(CARDINAL ) of LAW , or that your client would be at a real risk of outrages as covered by section CARDINAL(CARDINAL ) of LAW . It should be noted that your client 's time - limit for departure is still suspended until further notice on the basis of the request of DATE from ORG . If the basis for your client 's lawful stay in GPE lapses , your client must leave the country immediately , see section CARDINAL of LAW . As appears from the decision of ORG of DATE , your client may be forcibly returned to GPE if he does not leave voluntarily , see section GPE , cf . section CARDINAL , of LAW .","On DATE , the applicant 's representative brought proceedings against ORG before ORG ) claiming that the ORG 's decision of CARDINAL DATE should be annulled . It appears that the proceedings are still pending .","By virtue of section CARDINAL of LAW ( GPE ) , asylum is granted to aliens who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by the former ORG ( now called ORG ) and in the second instance by ORG .","Pursuant to section DATE , subsection CARDINAL , of LAW , decisions by ORG are final , which means that there is no avenue for appeal against the ORG 's decisions . Aliens may , however , by virtue of LAW ( PERSON ) bring an appeal before the ordinary courts , which have authority to adjudge on any matter concerning the limits to the competence of a public authority .","DATE 's country of origin or first country of asylum . For this purpose , ORG has a comprehensive collection of general background material on the situation in the countries from which GPE receives asylumseekers . The material is updated and supplemented on a continuous basis . The background material of ORG is obtained from various authorities , in particular ORG and ORG . In addition , background material is procured from various organisations , including ORG , ORG and other international human rights organisations and the ORG . Also included are the annual reports of ORG ) on the human rights situation in a large number of countries , reports from ORG , reports from the documentation centre of ORG , reports from ORG , reports from ORG ( ORG for Asylum Practitioners ) , reports from the authorities of other countries and to some extent articles from identifiable ( international ) journals . Moreover , the ORG may request ORG to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms . ORG also retrieves some of its background material from the Internet . Internet access also enables the ORG to obtain more specific information in relation to special problems in individual cases .","Usually , ORG assigns counsel to the applicant . Board hearings are oral and the applicant is allowed to make a statement and answer questions . The ORG decision will normally be served on the applicant immediately after the ORG hearing , and at the same time the Chairman will briefly explain the reason for the decision made .","Extensive information about GPE can be found in ORG . v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE . The information set out below concerns events occurring after the delivery of the said judgment on CARDINAL DATE and , in particular , after the cessation of hostilities in DATE .","Fighting between the Sri NORP army and the NORP intensified in DATE , with the army taking a number of rebel strongholds in the north and east of the country . On DATE , in an address to the country 's parliament , the President of GPE announced the end of hostilities and the death of the leader of the LTTE , PERSON . It was also reported that most , if not all , of the NORP 's leadership had been killed .","DATE , ORG for ORG had estimated that CARDINAL people had already reached internally displaced persons ' camps , including CARDINAL in DATE . In addition , it was believed that another CARDINAL people were on their way to the camps through the crossing point at GPE , in the northern district of PERSON .","In DATE , ORG reported that the number of killings in GPE in DATE ( including deaths of civilians , security forces and members of the ORG ) was : CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE and CARDINAL DATE and DATE . CARDINAL people were reported to have been killed in total over the course of DATE conflict .","\u201c Notwithstanding the cessation of the hostilities , the current protection and humanitarian environment in GPE remains extremely challenging . In the GPE , nearly the entire population from the territory formerly held by the NORP in the LOC ( CARDINAL NORP ) has been confined to heavily militarized camps in the LOC region . Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps , it is clear that this may take a considerable amount of time . The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps , access employment , attend regular schools , and ultimately choose their place of residence . \u201d","A Human Rights Watch [ HRW ] press release , dated DATE , reported that :","\u201c The government has effectively sealed off the detention camps from outside scrutiny . Human rights organizations , journalists , and other independent observers are not allowed inside , and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission . On several occasions , the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions , or did not renew their visas . \u201d","A further ORG press release dated DATE set out concerns that CARDINAL NORP civilians remained in detention camps without the freedom to leave .","In DATE , the first post - war local elections were held in LOC . ORG reported that voter turn - out was low due to the number of people who were still displaced . The governing party , ORG , took the majority of seats in the biggest city in the region , GPE . However , ORG , a party sympathetic to the defeated ORG , took the majority of seats in PERSON , the other town where polling took place .","On DATE , PERSON , the official spokesman for ORG in GPE was ordered to leave GPE because of adverse remarks that he had made to the media about the plight of NORP in the government - run camps .","On DATE the Sri Lankan Official Government News Portal announced that the motion to extend ORG ( under which the authorities have extensive anti - terrorism powers and heightened levels of security including checkpoints and road blocks ) by DATE had been passed by ORG with a majority of CARDINAL votes .","In a report dated DATE , GPE ORG published a report entitled \u201c Report to ORG on Incidents During the Recent Conflict in GPE \u201d , which compiled incidents from DATE , when the fighting intensified , until DATE . Without reaching any conclusions as to whether they had occurred or would constitute violations of international law , it set out extensive reports of enforced child soldiers , the killing of captives or combatants trying to surrender , enforced disappearances and severe humanitarian conditions during the hostilities .","On DATE , ORG announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from DATE .","In its Global Appeal DATE , the ORG reported that :","\u201c The Government - led military operations in northern GPE which ended in DATE displaced CARDINAL people , most of whom fled their homes in DATE of the fighting . The majority of these internally displaced persons ( IDPs ) now live in closed camps in Vavuniya district , as well as in camps in GPE , GPE and PERSON . CARDINAL IDPs , some of whom have been displaced since DATE , are also in need of durable solutions .","The IDPs originate mainly from the NORP , PERSON , PERSON , GPE and GPE districts in northern GPE , as well as from some areas in the east of the country . Though the end of hostilities has paved the way for the voluntary return of displaced people , some key obstacles to return remain . For instance , many of the areas of return are riddled with mines and unexploded ordnance . Not all are considered to be of high risk , particularly those away from former frontlines , but mine - risk surveys and the demarcation of no - go areas are urgently needed .","Other key obstacles to return include the need to re - establish administrative structures in areas formerly held by ORG ; the destruction or damaged condition of public infrastructure and private homes ; and the breakdown of the economy - including agriculture and fisheries .","The Government of GPE is planning the return framework , and it has called on ORG for support with return transport , non - food items , return shelter , livelihoods support and assistance in building the capacity of local authorities .","With some progress having been recently achieved , it is hoped that a substantial number of IDPs will be able to return to their places of origin in DATE , but a large portion of new IDPs are also likely to remain in the camps and with host families until well into DATE . \u201d","In a Human Rights Report DATE , dated DATE , GPE State Department stated that ORG accepted assistance from NGOs and international actors for the ORG camps but management of the camps and control of assistance were under the military rather than civilian authorities . Food , water , and medical care were all insufficient in DATE after DATE war , but by DATE the situation had stabilised and observers reported that basic needs were being met . In DATE the military withdrew from inside the camps but continued to provide security around the barbed wire - enclosed perimeter . The IDPs in the largest camp , ORG , were not given freedom of movement until DATE , when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin . Some observers said that this exit system still did not qualify as freedom of movement .","Human Rights Watch , in their report , ORG DATE , estimated that DATE after the main fighting ended , the ORG continued to hold CARDINAL people ( CARDINAL of them women and girls ) in the camps . CARDINAL of these were children . The camps were severely overcrowded , many of them holding twice the number recommended by the ORG . As a result , access to basic requirements such as food , water , shelter , toilets and bathing , had been inadequate . These conditions imposed particular hardships on the elderly , children and pregnant women . The camps were under military administration , and effective monitoring by humanitarian agencies was lacking . The authorities failed to provide camp residents with sufficient information about the reason for their continued detention , the whereabouts of relatives , or the criteria and procedure for their return home .","GPE on GPE of DATE ( \u201c the DATE ORG \u201d ) stated as follows :","CARDINAL ORG ( ORG ) report GPE : A Bitter Peace , CARDINAL DATE , also referred to \u201c extra - legal detention centres \u201d maintained by the military and observed : \u201c These detained have had no access to lawyers , their families , ORG or any other protection agency , and it is unclear what is happening inside the centres . In addition , ' the grounds on which the ex - combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary ' . Given the well - established practice of torture , enforced disappearance and extra - judicial killing of ORG suspects under the current and previous NORP governments , there are grounds for grave concerns about the fate of the detained . The government has announced that of those alleged ex - combatants currently detained , CARDINAL will be put on the trial ; most will detained for a further period of ' rehabilitation ' and then released . \u201d","...","CARDINAL Referring to the \u201c CARDINAL people \u201d detained \u201c in so - called ' rehabilitation centers \u201d because of their alleged association with the ORG , the ORG [ document Legal Limbo , The Uncertain Fate of ORG in GPE , released on DATE , observed : \u201c The government has routinely violated the detainees ' fundamental human rights , including the right to be informed of specific reasons for arrest , the right to challenge the lawfulness of the detention before an independent judicial authority , and the right of access to legal counsel and family members . The authorities ' consistent failure to inform families of the basis for the detainees ' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill - treatment , which are more likely to take place where due process of law is lacking and which have long been serious problems in GPE . Given the lack of information about some detainees , there is also a risk that some may have been ' disappeared ' . \u201d","CARDINAL The ORG ' Eligibility Guidelines for Assessing the International Protection Needs of Asylum - Seekers from GPE , DATE reported that \u201c In the wake of the conflict , CARDINAL persons suspected of NORP links were arrested and detained in high - security camps \u201d adding that \u201c According to a ORG survey , as of DATE , CARDINAL ORG cadres were being held at CARDINAL centres . Among the detainees were CARDINAL males and CARDINAL females . \u201d and noted that \u201c Some of the adult detainees have ... been released after completing rehabilitation programmes or because they were no longer deemed to present a risk , including some persons with physical disabilities . \u201d","The DATE ORG also set out :","CARDINAL The ORG [ ORG ] , ORG , GPE , DATE reported : \u201c The ORG has warned that GPE faces losing trade advantages under LAW ( GSP - Plus ) scheme from DATE , unless the ORG commits itself in writing to improving its human rights record . The ORG has put forward CARDINAL conditions that it says the Government needs to promise to meet within DATE . These include : ensuring that the CARDINALth amendment to the constitution , which requires that appointments to public positions be impartial and reflect the country 's ethnic and religious mix , is enforced ; repealing parts of LAW that are incompatible with GPE covenants on political and human rights ; reforming the criminal code to allow suspects immediate access to a lawyer on arrest ; and allowing journalists to carry out their professional duties without harassment . However , the ORG has rebuffed the ORG , stressing that the issues that it has raised are internal political matters that should not be linked to trade . \u201c The ORG is not the only international body currently putting pressure on the government . GPE has also rejected the ORG 's appointment of a CARDINAL - member panel to examine possible human rights violations during the island 's civil war . The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country . \u201d","...","CARDINAL The ORG , ORG , GPE , DATE noted that : \u201c The decision by the ORG secretary - general , Ban PERSON [ on DATE ] , to appoint a panel to examine accountability issues stemming from the final stages of the island 's civil war , which ended in DATE , has prompted a strong reaction in GPE ...","CARDINAL On DATE ORG reported that \u201c Secretary - General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages DATE of the conflict in GPE . \u201d The source also noted that the role of the experts was to examine \u201c the modalities , applicable international standards and comparative experience with regard to accountability processes , taking into account the nature and scope of any alleged violations in GPE . \u201d","GPE on GPE of DATE ( \u201c the DATE ORG \u201d ) sets out a series of letters from ORG \u2013 hereafter \u201c LOC \u201d , GPE , on arrival procedures at GPE airport . In its letter of DATE , the ORG observed :","\u201c [ T]he correct procedure for [ ORG and Emigration [ DIE ] ] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer 's office . The name , date and time of arrival and arriving flight details are written into the log . It records why the person has come to their attention and how the case was disposed of . I have had the opportunity to look at the log , and it appears that the CARDINAL ways of disposal are to be passed to ORG [ ORG ] , or allowed to proceed .","The office of ORG [ SIS ] is in the immigration arrivals hall and an officer from ORG usually patrols the arrivals area during each incoming flight . Invariably , if they notice a person being apprehended they approach IED [ ORG ] and take details in order to ascertain in [ sic ] the person may be of interest to them . Their office contains CARDINAL computer terminals , CARDINAL belonging to the airport containing flight information and CARDINAL stand - alone terminals . If an apprehended person is considered suitable to be passed to ORG , they are physically walked across the terminal building to the ORG offices . A ORG officer should then manually record the arrival of the person in a logbook held in their office ... often persons shown in the ORG logbook to have been handed to ORG are never actually recorded as being received in the ORG logbook . It is believed that ORG has allowed these persons to proceed and no action has been taken against them . \u201d","The same letter also noted that ORG offices at the airport contained CARDINAL computers , which were not linked to any national database . Any checks on persons detained or apprehended were conducted over the phone with colleagues in central GPE . There were no fingerprint records at the airport . CARDINAL computer contained records of suspects who had been arrested and charged with offences , and court reference numbers . It continued as follows :","\u201c Were a Sri NORP national to arrive at FAC having been removed or deported from GPE , they would be in possession of either a valid national NORP passport , or an emergency travel document \/ temporary passport , issued by ORG in GPE . The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him \/ her . A national passport contains the national ORG card number on the laminated details page . I have made enquiries with the DIE at FAC , and with ORG who meet certain returnees at the airport , and both have confirmed that a person travelling on an emergency travel document is dealt with similarly . They too have the document endorsed by the immigration officer on arrival and returned to them . Before issuing an emergency travel document , ORG in GPE will have details of an applicant confirmed against records held in GPE and will thus satisfactorily confirm the holder 's nationality and identity . If a returnee subsequently wishes to obtain a national identity card , they have to follow the normal procedures . \u201d","In a letter dated DATE , the ORG reported that an official had spent TIME observing the return of failed asylum seekers from GPE , including those who were in possession of emergency travel documents , issued by ORG in GPE . In the official 's opinion , the fact that certain returnees had been issued with emergency travel documents by ORG in GPE did not seem to make any difference to their treatment upon arrival .","The Report of Information Gathering Visit to GPE on DATE , conducted jointly by ORG and ORG ( \u201c the Report of Information Gathering Visit , DATE \u201d ) , concluded that all enforced returns ( of whatever ethnicity ) were referred to the ORG at the airport for nationality and criminal record checks , which could take TIME . All enforced returns were wet - fingerprinted . Depending on the case , the individual could also be referred to the ORG and\/or ORG for questioning . Anyone who was wanted for an offence would be arrested .","The report set out that those with a criminal record or ORG connections would face additional questioning and might be detained . In general , non - government and international sources agreed that NORP from the north and east of the country were likely to receive greater scrutiny than others , and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities , including possible detention :","- Outstanding arrest warrant","- Criminal record","- Connection with the LTTE","- Bail jumping \/ escape from custody","- Illegal departure from GPE","- Scarring","- Involvement with media or NGOs","- Lack of an ORG card or other documentation","GPE on GPE of DATE set out the following :","CARDINAL The ORG letter of CARDINAL DATE went on to observe that : \u201c At DATE , partly due to the large numbers of NORP being returned from around the world and causing logistical problems , ORG procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police . All returnees are still interviewed , photographed and wet fingerprinted . The main objective of these interviews is to establish if the returnee has a criminal record , or if they are wanted or suspected of committing any criminal offences by the police . The photographs are stored on a standalone computer in the ORG office at the airport . The fingerprints remain amongst paper records also in the ORG office at the airport . Checks are initiated with local police , but returnees are released to a friend or relative , whom ORG refers to as a surety . This surety must provide evidence of who they are , and must sign for the returnee . They are not required to lodge any money with ORG . \u201c The main ORG offices at FAC , which are housed on the ground floor adjacent to the ORG embarkation control , are currently undergoing a complete refurbishment funded by the NORP government . The CARDINAL completed office suite has CARDINAL purpose built interview rooms , and facilities where returnees can relax and eat meals . \u201d","...","CARDINAL A ORG letter of DATE reported : \u201c There is strong anecdotal evidence that scarring has been used in the past to identify suspects . Previous conversations with the police and in the media , the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training . More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently . At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual , and are not looking for particular scars as such , but anything that may indicate the suspect has been involved in fighting and\/or military training . There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees . \u201d","DATE . On DATE , Tamilnet reported that CARDINAL NORP youths were taken into custody by ORG of the Sri Lanka Police at FAC in CARDINAL separate incidents whilst trying to leave GPE . It was also reported that since DATE , special teams of ORG and police had been deployed in the airport to monitor the movement of NORP who try to go abroad .","ORG , DATE , stated that the frequency of cordon and search operations had not reduced significantly in DATE , though there were fewer large - scale operations than in DATE . In general , young male NORP originating from the north and east of the country were most at risk of being detained following cordon and search operations , with the presence of the risk factors set out above increasing that risk . Those without employment or legitimate purpose for being in GPE were also likely to be seen as suspect . The same report also noted that most sources agreed that there had been few , if any , abductions or disappearances since DATE . There was not a great deal of available information about the profile of NORP targeted for abduction , although it appeared that people linked to the media might be more vulnerable . Police did not generally carry out effective investigations . It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in GPE , whose stated purpose remained to detect and prevent terrorist activity . In general those most likely to be questioned were young NORP from the north and east ; those without ID ; those not resident or employed in GPE ; and those recently returned from the West . However , most sources said that arrests at checkpoints were rare and none had been reported since DATE . It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to GPE . Finally , it clarified that people who wished to live in GPE but did not originate from there must register with the local police station with a national ID card or full passport , and details of planned length and purpose of stay . In theory , whilst anyone was entitled to register to stay in GPE , some sources suggested that young NORP men originally from the north or east of the country could encounter difficulties and face closer scrutiny . The presence of any of the risk factors set out above would also attract greater attention from the police .","\u201c The significant majority of reported cases of human rights violations in GPE involve persons of NORP ethnicity who originate from the LOC and LOC ... In Government - controlled areas , NORP who originate from the LOC and the LOC , which are , or have been under ORG control , are frequently suspected as being associated with the NORP . For this reason , NORP from the LOC and the LOC are at heightened risk of human rights violations related to the implementation of anti - terrorism and anti - insurgency measures . While this risk exists in all parts of GPE , it is greatest in areas in which the ORG remains active , and where security measures are heaviest , in particular the LOC and parts of the LOC , and in and around GPE . \u201d","\u201c The country of origin information that ORG has considered indicates that NORP from LOC continue to face a significant risk of suffering serious human rights violations in the region ( and elsewhere in the country ) because of their race ( ethnicity ) or ( imputed ) political opinion . NORP in the LOC are still heavily targeted in the security and anti - terrorism measures described in LAW . Wide scale detention and confinement of NORP from the LOC remains a serious concern . ORG paramilitary elements also continue to operate with impunity against NORP in the LOC . \u201d","ORG from GPE of DATE , which superseded the DATE Guidelines contained information on the particular profiles for which international protection needs may arise in the current context . It was stated that :","\u201c given the cessation of hostilities , NORP originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm . In light of the improved human rights and security situation in GPE , there is no longer a need for group - based protection mechanisms or for a presumption of eligibility for NORP of NORP ethnicity originating from the north of the country . It is important to bear in mind that the situation is still evolving , which has made the drafting of these LAW particularly complex . \u201d","NORP In summary , the following were ORG 's recommendations : All claims by asylum seekers from GPE","( i ) persons suspected of having links with ORG ( NORP ) ;","( ii ) journalists and other media professionals ;","( iii ) civil society and human rights activists ;","( iv ) women and children with certain profiles ; and","( v ) lesbian , gay , bisexual and transgender ( ORG ) individuals .","It was also stated that in the light of GPE DATE internal armed conflict , and a record of serious human rights violations and transgressions of international humanitarian law , exclusion considerations under LAW may arise in relation to individual asylum seeker claims by GPE asylum seekers .","The ORG reported in DATE that the Colombo Police force had opened CARDINAL special units in GPE suburbs able to take statements in GPE , with plans for more . Previously , GPE - speaking NORP had to rely on a friend to translate their complaints into NORP ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109193","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2012,"docname":"CASE OF KLISHYN v. UKRAINE","importance":4,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska","text":["The applicant was born in DATE and lives in the town of GPE , GPE .","On DATE , at TIME , the applicant , who was drunk , together with P. and NORP , had a quarrel with CARDINAL other persons ( QUANTITY , PERSON , Ps . , ORG . and NORP ) . According to the applicant \u2019s own account , NORP hit him in the left eye and the applicant hit NORP in the jaw . Afterwards they were separated by others . However , according to the court \u2019s findings in the criminal case against the applicant ( see paragraph CARDINAL ) , after an attempt to have a fight with Pv . , the applicant stabbed NORP with a knife . NORP brought this to the attention of the traffic police officers PERSON . and PERSON , who happened to be passing .","At TIME on DATE , the applicant , together with P. and NORP , was arrested by the traffic police officers , handcuffed and taken to the traffic police station . According to the entries in the traffic police station register , the applicant remained in the traffic police station from TIME until TIME DATE .","According to the applicant , in the traffic police station he was beaten by CARDINAL officers . CARDINAL of them hit the applicant CARDINAL times on the head . Another one hit him in the face , twice or CARDINAL times hit him in the chest , and with a truncheon on the left ear , the kidneys and on the legs .","The applicant was subsequently taken to an ambulance station to check whether he was drunk . According to a medical report , the applicant was examined by a doctor at a municipal ambulance station at TIME on DATE . The applicant was drunk but had no visible injuries . After that the applicant was handed over to the ordinary police .","The applicant was taken to the police station at TIME on DATE . There he was examined by a police officer , PERSON . , in the presence of CARDINAL witnesses . It was noted that the applicant had no bodily injuries and had no complaints about the police officers . A report drafted by a police officer was signed by CARDINAL witnesses and by the applicant . The applicant also signed a statement that he had no complaints about his arrest and that no physical force or special restraining equipment had been used on him .","Later , according to the applicant , he was tortured and ill - treated and was forced to make self - incriminating statements . In particular , according to the accounts given by the applicant on an unidentified date , in the police station he had his head banged against the wall and table , and was hit in the kidneys .","According to the police officers , the applicant was released at TIME on DATE . The applicant , however , states that he was released at TIME","At TIME the applicant caught a bus . According to the bus driver , PERSON . , the applicant had bruises on his left ear and left eye and said that he had been beaten by the police .","According to the testimony of the applicant \u2019s sister and mother , given by them later during the investigation into the applicant \u2019s complaints of ill - treatment , on DATE the applicant was at home . An ambulance was allegedly called for him which did not come . The applicant \u2019s mother had arrived at home TIME on DATE and , as the applicant was feeling bad and had fallen to the floor after getting up from the bed , she called him an ambulance . The ambulance arrived at TIME on DATE . The applicant was diagnosed with concussion and head injury , and taken to hospital .","On DATE the applicant \u2019s mother complained to the prosecutor \u2019s office that the applicant had been ill - treated .","The applicant stayed in LOC from DATE to DATE . He was diagnosed with concussion , bruises to the neck and left ear and acute bronchitis . The applicant told doctors that he had fallen .","According to the conclusions of the Konotop traffic police internal investigation of DATE , CARDINAL traffic police officers , PERSON . and PERSON , were approached by NORP , who said that he had been stabbed in a bar . PERSON . and PERSON arrested the applicant , handcuffed him and took him to the traffic police station . Later they took the applicant to the ambulance station , where he was tested for alcohol . The test was positive and the applicant was then taken back to the traffic police station and handed over to the police . The applicant \u2019s injuries had been inflicted during the fight in which NORP was stabbed .","During a forensic medical examination carried out DATE and DATE the applicant stated that he had been beaten by the traffic police officers after fighting with NORP According to the applicant , he was punched CARDINAL times on the head and chest and hit in the ear . He also had a helmet put on his head and was hit twice with a truncheon on the head . It was revealed that the applicant had bruises on his left ear and scratches on his left arm . The scratches had been caused by handcuffs . These injuries could have occurred on DATE in the circumstances described by the applicant . The expert concluded that there were MONEY indicating truncheon blows .","According to the conclusion of a report dated DATE , signed by the head of the Konotop traffic police unit , the use of handcuffs on the applicant had been justified . When PERSON . and PERSON had arrived at the bar , there had been CARDINAL persons there . People started to run away and a window was broken . The applicant , PERSON , and NORP were recognised by PERSON ; however , as they were drunk , they refused to enter the police car , and they swore and resisted .","On DATE , following complaints by the applicant \u2019s mother , ORG refused to institute criminal proceedings . CARDINAL traffic police officers , Ts . and T. , testified that they had seen the applicant upon his arrival at the traffic police station and he had had no bodily injuries . Nobody had ill - treated the applicant . This was further confirmed by CARDINAL other traffic police officers , NORP , and the doctor who had examined the applicant . Further , the prosecutor referred to the report of the police officer PERSON . It was concluded that the police officers had not ill - treated the applicant .","On DATE ORG quashed the decision of DATE and remitted the case for additional investigation . It was noted that when PERSON . had been driving the applicant home at TIME on DATE , the latter had said that he had been beaten by police officers . The police officers testified that the applicant had been released at TIME The prosecutor noted that these , as well as other relevant circumstances , had not been verified and the quashed decision had been based on the testimony of the persons involved . Moreover , the cause of the applicant \u2019s injuries had not been established .","On DATE ORG again refused to institute criminal proceedings . It was found that , on DATE of the incident , CARDINAL young people , CARDINAL having a stab wound , had asked the traffic police officers for help . The applicant , together with CARDINAL other persons , had been taken to the traffic police station . Because they resisted arrest , they had been handcuffed . The applicant did not have any bodily injuries and that had been confirmed by a medical examination . A doctor , PERSON , had been questioned and confirmed that , during the examination in the ambulance station on TIME CARDINAL DATE , the applicant had had no bodily injuries . Police officers had stated that the applicant had been questioned and released at QUANTITY on DATE . He had not had any injuries and they had not ill - treated him . Although NORP , who had been arrested together with the applicant , had testified that he had seen the applicant being beaten by the traffic police officers , it was concluded that his testimony , as well as the applicant \u2019s statements , were not confirmed by the medical conclusions , and , in particular , that there had been MONEY from truncheon blows on the applicant \u2019s body ( see paragraph CARDINAL ) .","On DATE ORG quashed the decision of DATE and remitted the case for further investigation . The court held that the cause of the applicant \u2019s injuries had not been established and the testimony of PERSON . had not been verified .","On DATE ORG again rejected the applicant \u2019s request to institute criminal proceedings . It was concluded that the applicant \u2019s version of events was not confirmed by \u201c the medical conclusion of DATE \u201d . Furthermore it had been impossible to establish where the applicant had been CARDINAL on DATE .","On DATE ORG quashed the decision of DATE because the prosecutor had made a reference to the wrong provision of LAW when rejecting the applicant \u2019s complaints .","On DATE ORG rejected a request by the applicant for the institution of criminal proceedings . The prosecutor found that the applicant \u2019s description of events was not confirmed by the findings of the forensic medical examination which had been completed on DATE .","On DATE ORG quashed the decision of DATE and remitted the case for further investigation . It was noted that the hospital doctors who had examined the applicant on DATE had not been questioned . An additional medical examination of the applicant needed to be carried out , taking into consideration material from the hospital medical file . Moreover , it was unclear when exactly the applicant had been released .","During additional investigations in DATE the majority of the witnesses ( ambulance doctors , police officers , relatives of the applicant ) stated that as the events of DATE had happened DATE , they did not clearly remember them . Witness PERSON . was not questioned since he had moved abroad . The records of the ambulance visit to the applicant of DATE and the police station register had already been destroyed as their keeping period ( DATE for the police station register ) had expired .","On DATE the forensic medical examination concluded that the applicant had a scar on his right wrist . According to medical documents , on CARDINAL DATE the applicant had sustained light bodily injuries . Such injuries could have been inflicted in the circumstances described by the applicant . It was unlikely that they had been inflicted by the applicant \u2019s falling down .","On DATE ORG again refused to institute criminal proceedings into the applicant \u2019s complaint of ill - treatment . It was found that the applicant had been hospitalised on DATE complaining of headache , nausea and a left ear injury . The applicant had not told the doctors that he had been beaten by the police . The applicant \u2019s sister had testified that the applicant had come home during TIME of DATE feeling ill and had told her that he had been beaten by the police . The prosecutor , however , referred to the findings of the courts in the criminal case against the applicant and decided that there were no grounds to institute criminal proceedings against the police officers . This decision was not appealed against .","On DATE criminal proceedings were instituted against the applicant for hooliganism .","On DATE the applicant was charged with hooliganism and the use of an offensive weapon . He signed an undertaking not to abscond .","On DATE the applicant \u2019s representative , PERSON , was refused permission to represent the applicant in the criminal proceedings because PERSON did not hold an advocate \u2019s certificate . PERSON \u2019s appeals against that decision were unsuccessful . The applicant was represented in the criminal proceedings by his mother and by the advocates T. and S.","DATE and DATE the criminal proceedings were stayed because the applicant was ill .","On DATE the criminal proceedings were resumed and the applicant was arrested .","On DATE the ORG authorised the applicant \u2019s pre - trial detention . In doing so the court stated that \u201c the materials of the case presented before the court confirmed the investigating officer \u2019s conviction that the applicant might abscond or interfere with the course of justice \u201d .","On DATE ORG of Appeal quashed the decision of DATE because , by a Decree of the President of GPE which had entered into force on DATE , ORG had been dissolved . Therefore , the decision appealed against had been adopted by a court which no longer existed in law . The case was transferred to the newly created ORG for fresh consideration .","On DATE ORG authorised the applicant to be placed in pre - trial detention . In particular , the court held that the applicant had been accused of committing a serious crime to which he had not confessed . The court further noted that it was \u201c the investigating officer \u2019s right to decide on the tactics for the investigation and it was his right to decide to change the preventive measure [ from an obligation not to abscond to pre - trial detention ] \u201d .","The applicant appealed against that decision . According to the Government , this appeal was received by the court on DATE .","On DATE ORG found the applicant guilty of hooliganism and sentenced him to CARDINAL years\u2019 imprisonment . In particular , the court found that the applicant , PERSON , and NORP , had followed PERSON , Ps . , ORG . and NORP onto the street . The applicant had asked PERSON why he had not stayed in the bar . The applicant then started to swear and tried to have a fight with Pv . When PERSON , NORP and PERSON had tried to calm the applicant down he had struck NORP with a knife .","In the court hearing the applicant stated that he had had a quarrel with NORP but had not struck him with a knife . The court listened to the testimony of NORP . , PERSON . and PERSON CARDINAL latter witnesses withdrew the testimony they had given at the pre - trial stage and stated that the applicant had not in any way committed an offence against them . None of the other persons present during the incident attended the hearing because they were out of town . The court took into consideration the testimony they had given during the pre - trial investigation . The court also relied on various pieces of evidence and the conclusions of the forensic examinations .","On DATE ORG rejected an appeal by the applicant against the decision of DATE , because the applicant had already been sentenced to imprisonment .","On DATE ORG upheld the judgment of CARDINAL DATE . It also rejected as unsubstantiated the applicant \u2019s complaints that he had been ill - treated . No particular reasoning was given for this conclusion as the court referred to certain undated decisions not to institute criminal proceedings following the applicant \u2019s complaints .","By a decision of DATE ORG rejected a request by the applicant to have his sentence commuted .","On DATE ORG of GPE rejected an appeal in cassation by the applicant against his conviction .","On DATE ORG of Appeal quashed the decision of DATE and remitted the case for fresh consideration .","On DATE , by a decision of ORG , the applicant was granted an amnesty .","The applicant \u2019s representative , PERSON , asked the courts and the prosecutor \u2019s office to provide him with copies of documents necessary for lodging a complaint before this ORG . All his requests were rejected , mainly on the ground that he had not presented a valid power of authority and because he had requested documents other than those required in connection with the lodging of his complaints before the ORG .","Articles CARDINAL and CARDINAL ( as worded before the amendments of DATE ) can be found in the following judgments respectively : NORP v. GPE , no . CARDINAL\/CARDINAL , \u00a7 DATE , DATE , and ORG v. GPE , no . CARDINAL , \u00a7 DATE , DATE ) .","Following the amendments to LAW of DATE , the range of cases where the right to compensation would arise was expanded to include those in the following category :","\u201c ( DATE ) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court ( save for rulings on the remittal of cases for additional investigation ) \u201d ."],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-5"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98662","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF DZHABRAILOVY v. RUSSIA","importance":4,"conclusion":"Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicants are PERSON ( also known as PERSON ) PERSON , who was born in DATE , PERSON , who was born in DATE and PERSON , who was born in DATE . They live in GPE , GPE . The first applicant is the brother of Valid ( also spelled as PERSON and also known as GPE ) PERSON , who was born in DATE ; the second applicant is his mother and the third applicant is his sister .","The facts of the case , as submitted by the parties , may be summarised as follows .","At the material time the applicants and Valid Dzhabrailov lived at ORG FAC in the settlement of ORG , in the PERSON district , GPE . At TIME on DATE ( in the submitted documents the date was also referred to as DATE ) the applicants and PERSON were at home , when a group of armed masked men in camouflage uniforms arrived at their gate . The men arrived in a white ORG car ( \u201c PERSON ) , a blue VAZ-CARDINAL car ( \u201c NORP \u201d ) , a khaki - coloured military UAZ car ( \u201c \u0442\u0430\u0431\u043b\u0435\u0442\u043a\u0430 \u201d ) and a UAZ car . The men broke into the house and dispersed into different rooms . The intruders , who spoke unaccented NORP , neither identified themselves nor produced any documents . The applicants thought that they were NORP servicemen .","The intruders woke up the second and third applicants , lined them up against a wall and threatened to shoot them if they moved . After that the servicemen went into the room where the first applicant and PERSON were sleeping . They woke them up , forced the brothers to the floor , handcuffed them and blindfolded PERSON with the hood of his sweater . Then they took Valid and PERSON passports , beat them , dragged them outside and forced them to the ground . When the second applicant asked the intruders where they were taking her sons , the servicemen told her that they were taking them to a local department of the interior ( \u201c \u0432 \u043e\u0442\u0434\u0435\u043b \u201d ) for an identity check . After that they forced Valid and PERSON , who were already bleeding , into the military UAZ car and drove away to an unknown destination . While travelling in the car , the servicemen beat and kicked the brothers .","Upon arrival at the point of destination , the servicemen took Valid PERSON and the first applicant out of the car , put plastic bags over their heads and bound the bags with adhesive tape . The brothers did not know where they had been taken , but they could hear the sound of military vehicles and helicopters . The first applicant thought that they had arrived at the main base of the NORP military forces in GPE , GPE .","After that Valid and PERSON were forced to crawl on their hands and knees into a basement where they were thrown on to a cement floor . The brothers were cold and bleeding . Some time later the abductors came into the cell . Valid PERSON asked them why they had been abducted . In response CARDINAL of the servicemen gave him several blows to the head and in the stomach with his rifle butt . Valid Dzhabrailov fell unconscious and was dragged outside . After that the brothers were separated and placed into different cells .","The first applicant was taken into a small cell in a basement , measuring QUANTITY . The cell had an electric light , a bunk bed and no windows . From the cell he could hear his brother PERSON being interrogated and screaming as a result of being beaten .","After a while CARDINAL masked men in camouflage uniforms came into the applicant 's cell . They asked him a number of questions , such as : whether he had ever laid any landmines and whether he had known any members of illegal armed groups in his village . They beat him with their fists , pistols and a heavy flashlight and kicked him with their heavy boots . The applicant was subjected to such interrogations and beatings several times . The men pressurised the applicant to confess to involvement in illegal armed groups . For DATE of his detention in the basement the first applicant was not given any food or drink .","It appears that Valid PERSON was detained in the same building as the first applicant . DATE he was subjected to interrogations and beatings .","On DATE CARDINAL officers took the first applicant out of the basement , put a plastic bag over his head , bound it and his hands with adhesive tape and pushed him into a military UAZ car . In the vehicle the first applicant felt someone 's heavy , cold body on the floor . He realised that this was the body of his brother , PERSON .","The CARDINAL servicemen took the first applicant and the body of Valid Dzhabrailov to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny . CARDINAL of them shot the first applicant in the head ; the applicant was not killed , but wounded , and he was able to pretend to be dead .","The servicemen carried the first applicant and Valid PERSON 's body into a pit and placed them under a piece of a construction block . Then they laid explosives on the first applicant and placed Valid PERSON 's body on top of them . After that they lit the fuse . Having done that , they got back in the car and drove away .","The first applicant managed to set himself free and extinguish the burning fuse . He threw the explosives away before they exploded . He ran out into the street and stopped the driver of a passing car who drove him home .","Upon returning home the first applicant did not immediately seek medical help ; that came at a later stage . The first applicant obtained the following medical statements and submitted them to the ORG :","CARDINAL ) Medical statement issued by a neuropathologist at the CARDINALrd Grozny town hospital , dated DATE . The document stated that , as a result of a splinter wound to the head , PERSON was suffering from cephalgia ( pain in the skull ) , asthenia and neurosis .","CARDINAL ) Medical statement issued by a neuropathologist at the CARDINALrd Grozny town hospital , dated DATE . The document stated that , as a result of a tangential wound to the head received in DATE , PERSON was suffering from asthenia and neurosis .","CARDINAL ) Medical statement issued by a surgeon at the CARDINALrd Grozny town hospital , dated DATE . The document stated that the applicant had undergone a medical examination of the tangential wound inflicted to his head in DATE .","On DATE ( in the submitted documents the date was also referred to as CARDINAL DATE ) the applicants , their relatives and neighbours went to the Zavodskoy district of ORG . They found Valid PERSON 's body where it had been left by the first applicant and took it home . According to the witnesses , PERSON and Ms A.M. , the body showed traces of torture : it was black from the beatings ; the wrists and ankles had been cut to the bone from the wearing of handcuffs and shackles ; the palms and feet had been crushed and the head was hardly recognisable . They found a piece of metal wire on the neck but there was no trace of firearm wounds on the body .","Valid Dzhabrailov was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities . CARDINAL certificates were issued in connection with his death : the medical statement confirming Valid PERSON 's death , dated DATE and PERSON death certificate , stating that his death had occurred on CARDINAL DATE .","In support of their statements , the applicants submitted : an account by PERSON , dated DATE ; an account by PERSON , dated DATE ; an account by the first applicant , dated DATE ; an account by the second applicant , dated DATE ; an account by the third applicant , undated , and the CARDINAL medical certificates , CARDINAL dated DATE and CARDINAL dated DATE .","The Government did not challenge the facts as presented by the applicants . However , they pointed out that the investigation file contained neither a mention of the first applicant 's beating in the car following the abduction nor his assertion that he had heard Valid Dzhabrailov screaming from being beaten while in detention .","NORP Since DATE the applicants have repeatedly applied in person and in writing to various public bodies , including the district department of ORG ( the ROVD ) and prosecutors at various levels . They have been supported in their efforts by the NGO , PERSON . In their letters to the authorities the applicants referred to the events of DATE and asked for assistance and details of the investigation . Mostly , these enquiries have remained unanswered , or purely formal replies have been given in which the applicants ' requests have been forwarded to various prosecutors ' offices . The applicants submitted to the ORG some of the letters sent to the authorities and their replies . These documents , as well as the documents submitted by the ORG , are summarised below .","On DATE the ORG district prosecutor 's office inspected the crime scene at the applicants ' house . Nothing was collected from the scene .","On DATE an officer of the Zavodskoy ROVD informed his superiors that at TIME on that date the ROVD had received information about the discovery of Valid PERSON ' body in an abandoned building on the premises of a chemical plant and of the first applicant with a gunshot wound in his head . The latter stated that he and his brother , Valid , had been abducted from their house at TIME on DATE by unidentified armed men in camouflage uniforms ; that they had been detained in an unidentified place and then taken by the abductors to the chemical factory in a UAZ vehicle .","On DATE , under LAW ( aggravated kidnapping ) , the ORG district prosecutor 's office instituted an investigation into the abduction of Valid and PERSON . The case file was given DATE ( in the submitted documents the number was also referred to as DATE and DATE ) .","On DATE the investigators examined the crime scene at the place where Valid PERSON 's body had been discovered . The investigators inspected the body on the spot and drafted a report to this effect . As a result , it was established that Valid PERSON 's skull , face , ribs and upper and lower limbs seemed intact ; no metal wire was found on his neck . Nothing was collected from the scene .","On DATE the ORG town prosecutor 's office instituted an investigation into the murder of Valid PERSON and the case file was given the number DATE .","On DATE the first and third applicants were granted victim status in the criminal case concerning the abduction and were questioned .","During questioning on DATE the third applicant stated that at TIME on DATE a group of military servicemen had arrived at their house in several vehicles and had broken in . They had been armed with automatic guns ; their faces had been covered with masks . The intruders had woken up the first applicant and PERSON , taken their passports and told the third applicant in NORP that they would check her brothers ' identities and release them . After that the servicemen had pushed the brothers into a grey UAZ car and taken them away . On DATE a woman had arrived at the applicants ' house and told them that the first applicant and PERSON had been in LOC . The applicants had immediately informed the district police officer about it who had gone to PERSON and returned with the body of PERSON and the first applicant . The body had had numerous injuries and the first applicant had received a gunshot wound to the head . The witness further stated that she had learnt from the first applicant that the brothers had been handcuffed and taken to a basement made of concrete box units . At some point later they had been separated and the first applicant had not seen Valid PERSON for TIME . In TIME of DATE a LANGUAGE - speaking man in a camouflage uniform had removed the handcuffs from the first applicant , bound his hands , put a sack over his head and bound it with adhesive tape . He had pushed the applicant into a UAZ vehicle beside a cold corpse ; the first applicant had thought that it must have been the body of his brother , Valid . The car had been driven for TIME ; then it had stopped and the first applicant had been taken out . He had been dragged QUANTITY away from the road ; then he had been forced to the ground and shot in the head ; he had pretended to be dead . After that they had put Valid PERSON 's body on top of the applicant ; then they had placed CARDINAL pieces of trotyl between the brothers ' bodies and lit them . CARDINAL of the abductors had suggested to the other in NORP : \u201c Lets wait until it explodes \u201d but the other one had said that they 'd better leave quickly . After that they had got back into the car and driven away . The first applicant had managed to extinguish the explosive device and made it to the road , where he had stopped a car which had taken him to the Zavodskoy ROVD . On DATE the investigators again questioned the third applicant who provided a statement similar to the CARDINAL given on DATE . She added that the abductors had told her that they had been taking PERSON and PERSON to PERSON for an identity check ; that the abductors had been a group of CARDINAL men , CARDINAL of whom had broken into their house .","During questioning on DATE the first applicant stated that at TIME on DATE he and his brother , Valid , had been abducted from their home by a group of CARDINAL armed military servicemen who had arrived in CARDINAL grey UAZ vehicles , a white CARDINAL - door \u201c GPE \u201d car and a white \u201c PERSON \u201d minivan . The abductors had blindfolded the brothers and pushed them into a UAZ vehicle . After that the abductors had driven for TIME and taken the brothers to a windowless basement , which measured QUANTITY and was divided into smaller cells . The first applicant had been taken to a cell with a wooden door where he had been kept for TIME . In TIME of CARDINAL DATE he had been taken outside by CARDINAL armed servicemen in uniform , who had put a sack over his head and bound it with adhesive tape . Then they had pushed the applicant into a UAZ car , inside which was a cold corpse . The abductors had driven for TIME . Then they had stopped , dragged the applicant out of the car and forced him to his knees against a wall . The corpse had been placed next to the applicant . After that the abductors had shot the applicant in the head ; he had felt the pain but managed to pretend to be dead . Then the servicemen had placed an object between the applicant and the corpse and set it on fire , discussing whether it would be better to wait for the explosion or not . Next , the abductors had got back into the car and driven away . The applicant had pulled the sack off his head and seen that a pack of trotyl had been placed between him and the corpse of his brother , Valid . He had managed to extinguish the explosive device and throw it away . He had looked around and noticed that he had been taken to an abandoned building on the LOC of a former chemical plant in ORG . He had walked to the road , stopped a car and been driven to the Zavodskoy ROVD where he had informed the authorities about the events .","At DATE , on DATE the investigators again questioned the first applicant whose second statement about the events of DATE DATE was similar to the CARDINAL given on DATE . In addition , he provided a more detailed description of the place of his detention and stated that the abductors had interrogated him and demanded that he confess to laying landmines ; that they had beaten him with flashlights and rifle butts ; that they had all been wearing uniforms and masks and had been armed with firearms and that CARDINAL of them had been armed with a military \u201c PERSON \u201d pistol ; that CARDINAL of the abductors had addressed CARDINAL of the men present during the interrogations in the basement as \u201c Colonel \u201d and that the latter had been wearing a specific reddish camouflage uniform with a peculiar blotted pattern and had been armed with a special sub - machine gun with a silencer ; that the CARDINAL men who had conducted the last interrogation of the applicant had not been wearing masks ; that CARDINAL of them was a large - built , fair - haired man with glasses , of TIME to forty - five years of age , whereas the other one had an NORP appearance , was about the same age and had a similar build to the first one ; that these CARDINAL men had taken the applicant to the LOC of the former chemical plant where they had shot him in the head with a sub - machine gun , but the bullet had just grazed his head and he had managed to pretend to be dead ; that the men had tried to blow up him and his brother 's body ; that after the abductors had left he had managed to stop an MAZ vehicle in which there had been CARDINAL men who had driven him to a security lodge located in a yard with many garages ; that QUANTITY armed men in camouflage uniforms who had been present there had called LOC via a portable radio and that TIME a UAZ car had arrived and taken the applicant to the Zavodskoy ROVD .","On DATE the investigators questioned the applicants ' relative , PERSON , whose statement concerning the events of DATE was similar to the ones given by the first and third applicants .","On DATE the ORG district prosecutor 's office wrote to the ORG district department of ORG ( the ORG ) requesting information about the involvement of the first applicant in illegal armed groups . On DATE the ORG replied that they had no such information .","On DATE the ORG town prosecutor 's office joined the investigation in the criminal cases concerning the abduction and the killing . The joint criminal case was given the number CARDINAL .","On DATE the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to identify the perpetrators .","On DATE the GPE prosecutor 's office informed the second applicant that her complaint about the killing of Valid Dzhabrailov had been examined and that on DATE the investigation had been resumed .","On DATE ORG conducted an expert evaluation of Valid PERSON 's body based on the crime scene examination report of CARDINAL DATE . According to the expert 's conclusions :","\u201c ...","The following injuries were found on Valid PERSON 's body :","- numerous extensive bruises of the body and the extremities ;","- circular abrasions on the wrist and ankle joints ;","The injuries could have been caused by a number of impacts by a dull firm object ( objects ) DATE prior to the death ;","The corpse of PERSON was not examined ; therefore , it is not possible to make further conclusions ... \u201d","On DATE the Zavodskoy district prosecutor 's office suspended the investigation in the criminal case for failure to identify the perpetrators and informed the applicants about it on DATE .","On DATE the first applicant complained to the PERSON district prosecutor 's office that the investigation into Valid PERSON 's murder had been ineffective , that there had been a lack of information about the progress of the investigation and that its suspension had been unjustified .","On CARDINAL DATE the applicants ' representatives wrote to the ORG district prosecutor 's office and the PERSON town prosecutor 's office . They described in detail the circumstances of Valid and PERSON abduction and their subsequent detention . In particular , they described the beatings and the ill - treatment to which the brothers had been subjected by the abductors and the abductors ' attempt to kill the first applicant . They further complained that the investigations into the abduction and the murder had been ineffective and that there had been a lack of information about the progress of the proceedings , and asked to be provided with copies of a number of procedural decisions .","On DATE the Zavodskoy district prosecutor 's office informed the applicants that on an unspecified date the investigation into the abduction had been joined with the investigation into the murder and the joint criminal case had been given the number CARDINAL .","On DATE the applicants ' representatives wrote to the Zavodskoy district prosecutor 's office complaining that the investigation in the joint criminal case had been ineffective and that there had been a lack of information about the steps taken by the investigators . In particular , they pointed out that they had received no information as to whether an expert evaluation of the evidence discovered at the crime scene or a forensic examination of Valid PERSON 's body had been carried out . They further asked that the first applicant be provided with access to the investigation file .","On DATE and DATE the decisions to suspend the investigation were overruled by the supervisory prosecutors for failure to take necessary investigative steps and the proceedings were resumed .","The applicants submitted that the authorities had failed to provide them with information concerning the investigation into the abduction and the subsequent killing of their close relative .","The Government submitted that the investigation in criminal case no . DATE was still in progress . The perpetrators of the abduction and the killing had not been identified , but the domestic authorities were taking steps to have the crime resolved . The applicants had been duly informed of all decisions taken during the investigation .","Despite specific requests by ORG , the Government did not disclose most of the contents of criminal case no . DATE . They submitted copies of several documents and stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW because the file contained personal data concerning the witnesses or other participants in the criminal proceedings .","DATE . On DATE ( in the submitted documents the date was also referred to as DATE and DATE ) the first applicant complained to the PERSON district court of PERSON . He described in detail the events of DATE , including the beatings to which he had been subjected by the abductors , and complained that the investigation in criminal case no . DATE had been ineffective and that its suspension had been unjustified . The applicant sought a ruling obliging the authorities to resume the investigation and provide him with access to the investigation file .","On DATE the Zavodskoy district court rejected the complaint stating that the investigation in the criminal case had been resumed on DATE .","For a summary of relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104355","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF \u015eAMAN v. TURKEY","importance":3,"conclusion":"Violation of Art. 6-1+6-3-c;Violation of Art. 6-3-e;Remainder inadmissible;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto","text":["The applicant was born in DATE and at the time of lodging her application was serving a prison sentence in FAC .","On DATE the applicant was taken into police custody by police officers from ORG , upon intelligence reports that she was a member of the illegal organisation ORG ( ORG Party ) . When she was arrested , the applicant was in possession of a fake identity card .","On DATE the applicant was examined by a doctor , who noted that there was no sign of ill - treatment on her body . The applicant was subsequently taken to ORG for interrogation .","According to a form dated DATE which explained an arrested person 's rights , the applicant was reminded of her right to remain silent and was informed that she could request the assistance of a lawyer . The applicant marked this form with her fingerprint and stated that she did not want to be represented by a lawyer . Subsequently , a police officer prepared a further report , in which it was stated that although the applicant had been reminded of her right to legal assistance she had expressed her wish to defend herself in person . The applicant marked this report with her fingerprint as well .","On DATE the applicant was questioned by the police in the absence of a lawyer . Before the questioning commenced the applicant was once again reminded of her right to have legal assistance , but she refused . In her police statement the applicant gave a detailed account of her involvement in the illegal organisation .","On DATE and DATE respectively , the applicant was examined by a medical doctor . The medical reports indicated that there was no sign of ill - treatment on her body .","On DATE the applicant was taken before the public prosecutor . During her questioning , the applicant was represented by a lawyer , PERSON from ORG , and she availed herself of her right to remain silent . The prosecutor questioned the applicant about the fake identity card that had been found on her during her arrest and the applicant accepted that she had been using a fake identity paper . The lawyer left the public prosecutor 's office without signing the applicant 's statement , stating that although the applicant had expressed her wish to remain silent , the prosecutor had continued asking questions .","DATE , the applicant was questioned by the investigating judge , again in the absence of a lawyer . Before the judge , the applicant retracted her police statement , stating that it had been taken under duress . When asked about her involvement in the illegal organisation , the applicant accepted that when she was a teenager she had joined the ORG and moved to GPE . She denied however having taken part in any terrorist activity . She stated that she had come back to GPE to benefit from the Reintegration of Offenders into LAW ( Law no . DATE ) . After the questioning was over , the investigating judge remanded the applicant in custody .","On DATE the public prosecutor at ORG filed an indictment with that court , accusing the applicant of membership of an illegal organisation , an offence under LAW ( Law no . ORG ) .","The proceedings commenced before ORG and during the proceedings the applicant was represented by a lawyer . At the request of the applicant , ORG gave permission to the applicant to have the assistance of an interpreter . In its decision the firstinstance court noted that the applicant was capable of expressing herself in NORP ; however , in order not to hinder her right to defence and to comply with LAW , she was given leave to use an interpreter .","In her defence submissions before ORG , the applicant retracted the statements she had made during the preliminary investigation stage . She alleged that she had been forced to fingerprint her statement . According to the applicant , as she was illiterate , she could not understand the content of the document . She went on to deny the accusations against her and explained that when she was a teenager she had escaped to GPE for family reasons and that she had stayed in a refugee camp there .","On DATE , the applicant 's representative brought to the attention of ORG that the applicant , being of NORP origin , had a limited knowledge of NORP and that during her police custody she had not had the assistance of a lawyer or an interpreter .","During the trial , ORG took into consideration the police statements of CARDINAL people who had also been charged with membership of the ORG . These CARDINAL people testified that the applicant was a member of the ORG .","In the meantime , Law no . CARDINAL of DATE , published in ORG on DATE , abolished ORG . The case against the applicant was therefore transferred to ORG .","On DATE ORG found the applicant guilty as charged and sentenced her to DATE and DATE imprisonment . In convicting her , the court had regard to the applicant 's police statement and the statements of CARDINAL witnesses who had confirmed that the applicant was a member of the ORG .","The applicant appealed . In her appeal , she alleged that her right to legal assistance during police custody had been breached in so far as she had been denied the assistance of a lawyer .","On DATE ORG upheld the judgment of the first - instance court .","On DATE ORG re - examined the case in the light of the new Criminal Procedure Code which entered into force in DATE . It found the applicant guilty as charged but reduced her sentence to DATE and DATE imprisonment .","A description of the relevant domestic law concerning the right of access to a lawyer may be found in GPE v. GPE ( [ ORG ] no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c","6-3-e"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84459","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2008,"docname":"JEDLICKA v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant \u2019s company concluded a contract to provide a sub - delivery of building operations within a large construction project carried out by the company S. The applicant \u2019s company provided all the contracted work in due time and quality , and invoiced the company S. , but payment did not follow .","On DATE the applicant \u2019s company brought an action against the company S. in ORG ( krajsk\u00fd obchodn\u00ed soud ) .","On DATE the court issued a payment order against the company S. However , the latter filed a protest against the order which consequently did not become effective .","On DATE bankruptcy proceedings were instituted against the company S. The civil proceedings were therefore suspended ex lege .","On DATE the court received a proposal of the applicant \u2019s company to modify its action .","In appears that the civil proceedings instituted by the applicant \u2019s company against the company S. , which is now in liquidation , have not yet ended .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG \u2019s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84786","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2008,"docname":"KOSITSINA v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","From DATE to CARDINAL DATE the applicant \u2019s son , PERSON , was allegedly detained in the village of GPE , GPE , by T. and ORG . ( relatives of PERSON \u2019s former wife ) , who extorted payment of a obligation of MONEY ( USD ) from PERSON by subjecting him to ill - treatment .","On DATE ORG of ORG was informed by a medical clinic , to which PERSON came for medical treatment after being released , that he was suffering from head injuries .","On DATE ORG Office of Odessa ( \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0406\u043b\u0456\u0447\u0435\u0432\u0441\u044c\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0443 PERSON ) instituted criminal proceedings against T. and ORG . for unlawfully depriving PERSON of his liberty .","DATE the criminal proceedings were several times terminated and subsequently reinstituted .","On DATE PERSON died .","On DATE the criminal case against T. and ORG . was closed for lack of evidence of crime . It was established that PERSON had borrowed money from T. and ORG . , and that his physical injuries had occurred as a result of an epileptic fit . Following a complaint by the applicant about this decision , on DATE ORG upheld it , finding no irregularities in the prosecutor \u2019s decision to terminate the criminal proceedings .","On DATE the ORG of ORG , acting upon a protest lodged by ORG , quashed the decision of DATE because the applicant had not been informed about the court hearing of DATE and the court decision had not been reasoned . It remitted the case for a fresh examination to a different judge .","On DATE ORG remitted the case for further investigation . In particular , it found a number of deficiencies in the investigation of the case and ordered the prosecution to rectify them .","On DATE ORG again terminated the criminal proceedings against T. and ORG . for lack of evidence of crime .","On DATE the same prosecutor \u2019s office quashed its own decision and reinstituted criminal proceedings .","On DATE the applicant was granted victim status .","On DATE ORG terminated criminal proceedings against T. and Tr . for lack of evidence of crime . PERSON \u2019s former wife , her mother and PERSON testified that the applicant had borrowed money from ORG and that he had suffered from epilepsy .","On DATE the ORG of Odessa , on a complaint by the applicant , quashed the prosecutor \u2019s decision and remitted the case for further investigation .","On DATE the prosecutor quashed the decision of CARDINAL DATE granting the applicant victim status , as contrary to LAW .","On DATE the prosecutor terminated the criminal proceedings for absence of evidence of crime and as time - barred .","On DATE ORG , on a complaint by the applicant , quashed the prosecutor \u2019s decision and remitted the case for further investigation . In particular , it ordered that the deficiencies in the investigation of the case be rectified . However , the court underlined that the applicant had no victim status in the case . On DATE and DATE the NORP ORG of Appeal and ORG upheld this decision .","DATE the criminal proceedings were several times terminated and subsequently reinstituted .","On DATE the ORG , by a separate decision , ordered the prosecutor to inform the court about the investigative actions which the prosecution had taken in the case . It emphasised the failure of the prosecution to abide by the ORG previous decisions . On DATE , on a complaint by the applicant , the court remitted the case for a new investigation .","On DATE the NORP ORG upheld the decision of DATE , by which the case had been remitted for a new investigation .","DATE and DATE the criminal proceedings were several times terminated and subsequently reinstituted .","On DATE the case was transferred to the court in order to terminate proceedings as time - barred .","On DATE the ORG of Odessa refused to terminate the criminal proceedings against T. and ORG . and remitted the case for a new investigation . On DATE the ORG of Appeal quashed this decision and remitted the case for a fresh judicial examination . The applicant was recognised by the court as her late son PERSON \u2019s representative .","On DATE PERSON \u2019s daughter was granted victim status in the proceedings .","On DATE ORG terminated the criminal proceedings as time - barred .","On DATE the ORG dismissed the applicant \u2019s appeal against the decision of DATE since the applicant was not a party to the proceedings . On DATE and DATE the NORP ORG of Appeal quashed the decisions of CARDINAL May and DATE respectively and remitted the case to ORG for fresh consideration .","On DATE the ORG granted the applicant victim status and remitted the case to the prosecutor for an additional investigation .","On DATE ORG terminated the criminal proceedings for the absence of the event of crime . On DATE ORG upheld this decision . The applicant appealed against it and the proceedings are still pending .","According to LAW , a person who has sustained pecuniary damage as a result of a crime can lodge a civil claim against an accused at any stage of the criminal proceedings before the beginning of the consideration of the case on the merits by a court .","Article CARDINAL of the LAW provides in so far as relevant :","\u201c A person who has suffered moral , physical or property damage from the crime can be recognised as an aggrieved party . ...","A citizen , who has been recognised as an aggrieved party from the crime , shall be entitled to give evidence in the case . An aggrieved party , or his or her representative , shall be entitled to : ... make requests ; to study all the materials of the case - file when the pre - trial investigation is completed , ... to lodge complaints against the actions of inquirer , investigator , prosecutor and court , ...","In cases where the crime caused the death of the victim , the rights provided for in this Article shall be conferred upon the deceased \u2019s next kin . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4911","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":1999,"docname":"JANUSZEWSKI AND WICHERKIEWICZ v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicants are NORP nationals . The first applicant was born in DATE , the second applicant was born in DATE . They both live in GPE .","They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .","A.","s , may be summarised as follows :","The applicants are CARDINAL businessmen running a non - commercial partnership ( sp\u00f3\u0142ka cywilna ) . On an unspecified date in DATE a trustee of an estate of a certain insolvent company sued the applicants in ORG ( Commercial Division ) ( ORG ) for payment of a debt . On a further unspecified date the applicants filed a counter - claim .","On DATE the court held a hearing . During the hearing the applicants requested the court to fix a new hearing date for the end of the fruit season . The court granted their request and listed the next hearing for DATE , which was duly recorded in the minutes . Subsequently , during the same hearing , the applicants also requested the court to synchronise this hearing with a hearing before the same court , which was to be held in another case to which the applicants were parties .","On DATE the applicants were not present at the hearing as they considered that a summons should be served on them in order to confirm the hearing date . On DATE the court gave judgment ordering the applicants to pay the sum sought by the plaintiff . It rejected their counter - claim .","A copy of the judgment was not served on the applicants . They became aware of the judgment and its content as late as DATE . On DATE they filed an appeal and a request to grant them retrospective leave to appeal out of time . They submitted that , to their understanding , on DATE the court had not definitely fixed a new hearing date and therefore they had waited for a formal notification . The applicants also requested the court to rectify TIME of the hearing of DATE by inserting the following paragraph : \u201c The court revises its order concerning the date of the next hearing and it will fix the date ex officio , synchronising it with a hearing in a case no . ... . The court shall notify the parties of that date . \u201d","On DATE ORG dismissed the applicants ' request for leave to appeal out of time . The court found that TIME of the hearing had unambiguously indicated that the date of the next hearing had been fixed for DATE and the court had correctly considered that the applicants had been duly notified of the hearing . The court also took into account the fact that the plaintiff had had no doubts as to the date of the hearing in question . Moreover , the applicants had been represented by a lawyer and any potential misunderstanding could have not been considered as a plausible justification for their failure to appeal within the prescribed time - limit . The applicants appealed against this decision .","On DATE ORG ( FAC ) upheld the contested decision . The court observed that a party to the proceedings was expected to act with all due diligence and if the applicants had had any doubts as to the definite hearing date , they could easily have verified them .","On DATE a single judge , sitting as ORG dismissed the applicants ' request to rectify TIME of the hearing . The court based its decision on the same grounds as those contained in the decision dismissing the applicants ' request for leave to appeal out of time . On DATE the applicants ' further appeal was dismissed by the same court , sitting as a panel of CARDINAL judges .","Subsequently , the applicants unsuccessfully requested the Minister of ORG for leave to file an extraordinary appeal . In letters of DATE and of CARDINAL DATE the Minister informed them that he would not examine the requests as both the proceedings concerning their request for leave to appeal out of time and the proceedings relating to their request for rectification of the minutes were still pending . In a letter of DATE the Minister informed them that he could not rule on their request for leave to file an extraordinary appeal in respect of the judgment of CARDINAL DATE because such a leave could not be granted in a commercial case after the expiry of DATE from the date on which the judgment had become final . In respect of the second decision , the Minister found that there was no basis for granting the applicants leave to file an extraordinary appeal .","B. Relevant domestic law and practice","Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure reads , insofar as relevant :","\u201c The parties and the [ other ] persons concerned shall be notified of a hearing date ; such notification is effected either by service of a summons or [ in case of an adjournment of a hearing ] by fixing a date during the hearing . A summons shall always be served on the party which has been absent at the hearing ... . \u201d","Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure reads , insofar as relevant :","\u201c If the party to proceedings fails to comply with the prescribed time - limit without its fault , the court shall , on that party 's request , grant leave to appeal out of time ... . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85927","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2008,"docname":"DAVIDCHUK v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . ORG were initially represented by Mr PERSON , the former Representative of GPE at ORG , and subsequently by their Representative , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was questioned by the police in the absence of his lawyer and confessed to the murder of his wife . Before the questioning he had made a handwritten statement that he did not need legal assistance .","On DATE ORG of GPE convicted the applicant of murder and sentenced him to DATE imprisonment . The applicant was assisted by legal - aid counsel .","The applicant appealed . In his grounds of appeal he advanced the defence of irresistible impulse and asked for a more lenient sentence . He also applied for free legal representation because he did not have sufficient means to retain counsel . He relied on LAW ( see below ) .","By letter of DATE , a deputy President of ORG rejected the applicant \u2019s request for free legal assistance because \u201c there were no right to free legal representation before appeal courts \u201d .","On DATE ORG upheld the conviction on appeal but reduced the sentence to DATE imprisonment . The applicant was not assisted by counsel .","On DATE a deputy Prosecutor General lodged an application for supervisory review with the ORG of ORG . He submitted that ORG had infringed the applicant \u2019s right to free legal representation .","On DATE the Presidium of ORG granted the prosecutor \u2019s application , finding that the refusal to provide the applicant with free legal representation at the appeal hearing had violated the rights of the defence . It quashed the appeal judgment of DATE and remitted the case for a fresh examination before ORG .","On DATE ORG held a new appeal hearing . It upheld the applicant \u2019s conviction but reduced the sentence to TIME years\u2019 imprisonment .","On DATE the applicant was released on parole .","LAW ( in force from DATE ) establishes that the investigator , the prosecutor or the court provide the suspect or the accused with legal aid counsel upon his \/ her request ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70120","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF ERNEKAL v. TURKEY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in PERSON .","On DATE ORG and Highways expropriated CARDINAL plots of land belonging to the applicant . A committee of experts assessed the value of the plots of land and the relevant amount was paid to him .","Following the applicant 's request for increased compensation , on DATE ORG of First - instance awarded him additional compensation of MONEY ( TRL ) , plus interest at the statutory rate applicable at the date of the court 's decision . In order to calculate the amount of increased compensation , the court consulted several experts .","The General Directorate of National Roads and NORP appealed against the judgment of DATE .","On DATE ORG upheld the judgment .","According to the order of ORG and GPE , the amount of GPE CARDINAL was paid to the applicant on DATE . The applicant claimed that he was paid on DATE .","The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , \u00a7 \u00a7 DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88857","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2008,"docname":"BIC v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr R. PERSON , a lawyer practising in PERSON . The Government of GPE ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant instituted proceedings before the PERSON I ORG relating to his right to use an apartment .","On DATE CARDINAL of the defendants submitted their comments in relation to the claim .","The first hearing in the case was held on DATE . CARDINAL of the defendants failed to appear .","The President of ORG informed the applicant that the delay in the proceedings had been caused by the heavy workload of the judge dealing with the case .","All CARDINAL defendants failed to appear before the court on DATE . The court requested the police 's co - operation in serving the summons on CARDINAL of the defendants , CARDINAL of whom lived in GPE .","On DATE another hearing was held . None of the defendants appeared . The summons had been served on CARDINAL of them .","On DATE CARDINAL of the defendants filed written submissions with ORG .","On DATE ORG imposed a procedural fine on one of the defendants .","On DATE ORG asked for documentary evidence to be produced .","Hearings were held on DATE and on DATE .","On DATE the judge asked for further documentary evidence to be produced .","A hearing was held on DATE . On DATE the court inspected the apartment in issue .","On DATE the case was adjourned . The applicant was invited to specify his claim within DATE .","On DATE one of the defendants asked the court to grant him access to the apartment .","On DATE and on DATE the judge asked the applicant to inform the court whether an agreement had been reached between the parties . The applicant replied on DATE .","On DATE a hearing was held . Subsequently , a hearing was adjourned twice because the judge dealing with the case was on sick leave .","On DATE a hearing was held . Neither the applicant nor the defendants were present . It was not proved that the summons had been served on CARDINAL of the defendants . The court imposed a procedural fine on the lawyer of the other CARDINAL defendants . The lawyer was later exempted from payment of the fine .","On DATE the court notified the parties that the case had been assigned to a new judge and the hearing was adjourned . On DATE the court requested police co - operation in establishing the address of CARDINAL of the defendants .","On DATE the police informed the court that the defendant was living abroad at an unknown address .","On DATE a hearing was held at which the applicant and all CARDINAL defendants were present . The hearing was adjourned as further information was needed .","ORG delivered a judgment on DATE . It ordered CARDINAL of the defendants to let the applicant use the apartment in issue within DATE of the judgment becoming final .","On DATE ORG upheld the relevant part of the first - instance judgment . The decision in the case became final on DATE .","On DATE ORG found that the PERSON I ORG had violated the applicant 's right under LAW to a hearing within a reasonable time . The decision stated that the case was not complex and that the applicant had not contributed to the length of the proceedings . ORG had remained inactive from DATE to CARDINAL DATE . ORG considered it appropriate to award the applicant CARDINAL NORP korunas ( SKK ) , payable by ORG within DATE . It also ordered ORG to proceed with the case without any further delay .","On DATE ORG found that the PERSON I ORG had violated LAW in the proceedings concerning the applicant 's action during the period subsequent to the delivery of the first decision on DATE .","ORG found that the case was not complex . While the applicant had not always replied to the court 's requests within the time - limit set , his behaviour as a whole had not resulted in any unjustified delays in the proceedings . As to the conduct of ORG , it had remained inactive from DATE to CARDINAL DATE ( DATE ) as well as from DATE to DATE ( DATE ) . Despite the earlier order issued by ORG , ORG had not proceeded with the determination of the action in good time .","ORG awarded the applicant LAW as just satisfaction , which ORG was obliged to pay within DATE . When determining the amount of just satisfaction , ORG took into account , inter alia , that at a certain stage of the proceedings the applicant had not duly co - operated with ORG . It further ordered ORG to proceed with the case without any further delay and to reimburse the applicant 's legal costs in the constitutional proceedings ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110486","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2012,"docname":"CASE OF SARKIZOV AND OTHERS v. BULGARIA","importance":4,"conclusion":"No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicants were born in DATE , DATE , DATE and DATE respectively . The first , the second and the third applicants live in GPE . The fourth applicant lives in GPE .","On DATE a preliminary investigation was opened against the applicants in respect of sexual procurement .","DATE the witnesses PERSON , Mr GPE , Ms R.M. and PERSON were questioned before a judge . Neither the applicants nor their lawyers participated in the questioning .","Mr Zh . PERSON stated that the fourth applicant had owed him money and therefore in DATE had offered him the sexual services of QUANTITY of the prostitutes controlled by him in lieu of payment . Mr Zh . PERSON had accepted . Later the fourth applicant had proposed to \u201c sell \u201d him the same woman for QUANTITY ( \u201c EUR \u201d ) .","Mr PERSON stated that in DATE he had seen QUANTITY women standing on a main road , had stopped his car and had asked them who was their boss . They had replied that it was the fourth applicant . Then Mr PERSON had called the fourth applicant , who was an acquaintance of his , and the fourth applicant had confirmed that the women were working for him .","PERSON stated that in DATE the fourth applicant had suggested that she work for him as a prostitute . She had accepted and the fourth applicant had bought her clothes and a bus ticket to GPE . There a woman named PERSON had met her and had found her a hotel . PERSON had been instructed to give the money she earned to PERSON who would forward it on to the first , the second and the fourth applicants through companies providing money transfer services . After some time the fourth applicant had sent PERSON to GPE , where the second applicant had met her . Later on , PERSON had returned to GPE and had prostituted herself along the main roads . DATE in DATE another procurer had stopped his car and had suggested that she work for him . She had told him that she had worked for the fourth applicant , and had given him the latter \u2019s phone number . He had called the fourth applicant and had then left .","PERSON stated that in DATE she had been contacted by the third and the fourth applicants who had suggested that she work for them as a prostitute . She had refused .","On an unspecified date ORG decided that the identity of CARDINAL other witnesses should be kept secret .","On DATE witnesses with ID nos . CARDINAL and CARDINAL were questioned before a judge . Before the interviews the judge verified the two witnesses\u2019 identity .","Witness no . CARDINAL stated that she had dated the third applicant in the past . According to her statements , in DATE , while she was still under age , the third applicant took her to a hotel in the town of P. where he left her in a room with an unknown man . Then the man had told her that he had paid the third applicant to have sex with her . She spent TIME with him . On DATE witness no . CARDINAL had met the third applicant who had introduced her to the fourth applicant and a woman named NORP The third and the fourth applicants had suggested to witness no . CARDINAL and PERSON that they work for them as prostitutes . Witness no . DATE had accepted . Afterwards , on a number of occasions from DATE witness no . CARDINAL had been sent either by the third or the fourth applicants to meet their clients in different towns in GPE . In DATE witness no . CARDINAL had informed the third and the fourth applicants that she no longer wished to work for them .","Witness no . CARDINAL stated that in DATE she had already been engaged in prostitution when the fourth applicant had contacted her and had suggested that she work for him . She had agreed and the first , the second and the fourth applicants had made arrangements for her to travel to GPE , GPE and other countries in order to work as a prostitute . She had sent them money by using money transfer services or through third parties . After some time she had told them that she no longer wished to work for them .","NORP Immediately after the interviews the records of the ORG statements were presented to the applicants and their lawyers , and they were given the opportunity to put questions . The applicants and their lawyers stated in writing that they had acquainted themselves with the records and had no questions to put to the anonymous witnesses .","On DATE the witness with ID no . CARDINAL was questioned before a judge who verified her identity . The first , the second and the fourth applicants and the lawyers of the second and the fourth applicants participated in the interview but the ORG identity was protected . The third applicant and his lawyer , as well as the first applicant \u2019s lawyer , although duly summoned , were absent . Witness no . CARDINAL stated that in DATE she had accepted to work as a prostitute for the first , the second and the fourth applicants . They had arranged her travel to and stay in GPE , GPE and GPE , and she had sent money to individuals specified by them . After some time she had informed the fourth applicant that she no longer wished to work for him .","ORG invited the applicants and their lawyers to put questions to witness no . CARDINAL . The first , the second and the fourth applicants expressly stated in writing that they had no questions for her .","On DATE ORG ordered CARDINAL banks to inform the prosecution and the police authorities of the international money transfers ordered or received by certain individuals suspected of having been involved in the applicants\u2019 sexual procurement activities . On DATE ORG issued a similar order in respect of CARDINAL other banks .","On an unknown date the applicants were accused of having induced into prostitution , procured or transported , individually or in complicity with each other , the CARDINAL anonymous witnesses and other women .","The applicants were also apparently subject to special means of surveillance for an unknown period of time .","On DATE ORG filed an indictment against the applicants . On an unknown date ORG decided that the public should be excluded from the trial .","On DATE ORG held a hearing in the case . The anonymous witnesses and CARDINAL other witnesses did not appear . The court adjourned the hearing because of irregularities in the summoning of witnesses .","The next hearing was held on DATE . Witness no . CARDINAL was present , but the other CARDINAL anonymous witnesses and QUANTITY other witnesses did not appear . ORG adjourned the hearing because of irregularities in the summoning of witnesses .","On DATE ORG held a further hearing . The anonymous witnesses and CARDINAL other witnesses did not appear . ORG submitted written statements by CARDINAL of the anonymous witnesses that they were aware of the criminal proceedings and did not wish to attend the hearing . The applicants\u2019 lawyers requested that the anonymous witnesses be found and questioned . ORG held that the anonymous witnesses had been the victims of the crimes of which the applicants had been accused , and therefore were free to decide whether they wished to attend the hearing . It questioned CARDINAL witnesses , who stated that they did not know or did not remember anything about the case . However , CARDINAL of the witnesses , Mr A.D. and Mr PERSON , admitted that they had received international money transfers , and Mr DATE specified that he had thus done the fourth applicant who had had no identity card a favour . ORG requested that the records of the ORG statements before the investigator be read out in court . However , the applicants did not give their consent and ORG dismissed that request .","The next hearing was held on DATE . The anonymous witnesses and several other witnesses were again absent . ORG submitted a police report attesting to the fact that one of the anonymous witnesses was abroad . ORG ordered that the anonymous witnesses and the other absent witnesses be found and brought before it . It further questioned CARDINAL witnesses , including the witness ORG After that it read out ORG testimony given before a judge at the pre - trial stage ( see paragraph CARDINAL above ) , finding that there was inconsistency in her statements . Another witness , PERSON . PERSON , stated that in DATE the fourth applicant had suggested that she work for him as a prostitute but she had refused .","The next hearing was held on DATE . ORG examined CARDINAL witness and admitted the evidence obtained from the use of special means of surveillance . The anonymous witnesses and several other witnesses once again did not appear . ORG stated that CARDINAL of the anonymous witnesses were abroad and that the third could not be found . The applicants\u2019 lawyers insisted that the anonymous witnesses be found and questioned , and asserted that anonymity was not justified as the applicants knew the identity of those witnesses . ORG again ordered that the anonymous witnesses and the other missing witnesses be found and brought before it .","A further hearing was held on DATE . The anonymous witnesses and several other witnesses did not appear . A police report was submitted , stating that CARDINAL of the anonymous witnesses had left the country and the third one had not been found . The applicants\u2019 lawyers insisted that the anonymous witnesses be found and questioned , and expressed doubts about the efforts of the prosecution authorities to ensure their presence at the trial . They further requested the cancellation of the witness protection measures , stating that the applicants were already aware of their identity . ORG found that the reasons for protecting the anonymous witnesses persisted . Noting that the anonymous witnesses were abroad , it read out their statements given at the pre - trial stage and admitted them . It did the same with the testimony of PERSON ( see paragraph CARDINAL above ) , who appeared but stated that he did not remember anything about the case , and with the testimony of CARDINAL other witnesses who had been questioned before a judge at the pre - trial stage , including Mr PERSON and PERSON ( see paragraphs CARDINAL and QUANTITY above ) , who could not be found and summoned . ORG also read out and admitted a number of documents , such as reports on international money transfers , police reports , and the information obtained through the secret surveillance of the applicants . The applicants\u2019 lawyers unsuccessfully requested the recusal of the panel .","In a judgment of DATE ORG convicted the applicants , individually or in complicity with each other , of having induced or attempted to induce into prostitution , procured or transported the CARDINAL anonymous witnesses and the witnesses PERSON , PERSON and PERSON . PERSON was sentenced to CARDINAL years\u2019 imprisonment and a fine , Mr Vasilev \u2013 to CARDINAL years\u2019 imprisonment and a fine , PERSON to DATE and CARDINAL months\u2019 imprisonment and a fine , and Mr DATE to CARDINAL years\u2019 imprisonment and a fine . ORG found that the ORG statements , including those of the anonymous witnesses , had been corroborated by the other evidence in the case , such as other witness statements , reports on international money transfers , reports from the border control authorities , and the information obtained through the secret surveillance of the applicants .","Following an appeal by the applicants , on DATE ORG held a hearing . It dismissed the applicants\u2019 request that the anonymous witnesses be questioned , finding that this was not necessary .","In a judgment of CARDINAL DATE ORG upheld the sentence of DATE . It fully endorsed the findings and conclusions of ORG .","The judgment of DATE was not subject to an appeal on points of law and became final .","On an unknown date the applicants requested the reopening of the criminal proceedings . In a judgment of CARDINAL DATE ORG dismissed the request . It held that there had been no procedural breaches in the examination of the anonymous witnesses at the pre - trial stage , and that the applicants had been acquainted with the examination records and had explicitly stated that they had no questions to put to those witnesses . The court further emphasised that the anonymous ORG testimony had not been the sole or decisive evidence for the ORG conviction , but had been corroborated by a wealth of other evidence .","The second applicant was conditionally released from prison on DATE with a DATE supervision period , which expired , apparently , in DATE .","On DATE the NORP Regional Police Directorate prohibited him from leaving the country pending his rehabilitation ( see paragraph CARDINAL below ) . He appealed against the order , arguing that he had no employment in GPE and that the prohibition did not contribute to his social re - integration , was excessive and unnecessary . In a final judgment of DATE ORG dismissed the appeal . The court held that the prohibition had been imposed in compliance with the law , on the grounds of the second applicant \u2019s conviction for an offence subject to public prosecution , and that the ratio legis behind the prohibition was to prevent criminally active individuals from travelling abroad until they had proved that they had been reformed .","On an unknown date the fourth applicant was released from prison .","On DATE the NORP Regional Police Directorate prohibited him from leaving the country pending his rehabilitation . He appealed against the order , arguing that he had served his sentence , that there were no pending criminal proceedings against him , that his work as a football manager required frequent travel abroad and that he had to accompany his son for medical treatment abroad . In a final judgment of DATE ORG dismissed the appeal , holding that the assessment of the administrative body was not subject to judicial control . The court further held that the police authorities were not obliged to state any reasons for their decision to impose the ban .","Seeing that the travel bans were contingent on the judicial rehabilitation of the second and the fourth applicants , these measures apparently would have lasted at least until DATE for the second applicant and until an unknown date in DATE for the fourth applicant ( see paragraph CARDINAL below ) . However , in DATE the Bulgarian Identity Papers Act was amended to the effect that convicted individuals who had served their sentences could no longer be prohibited from leaving the country . As a result , all travel bans imposed before that amendment ceased to have effect as from DATE ( see PERSON v. GPE , no . CARDINAL , \u00a7 DATE , DATE ) .","Pursuant to Articles DATE and CARDINAL of the DATE Code of Criminal Procedure ( \u201c the DATE ORG \u201d ) , in force until DATE , measures for the protection of a witness had to be taken where there were sufficient grounds to believe that his testimony had caused or could have caused a real risk to his life , health or property or that of his close relatives or other individuals with whom he had very close ties . The decision that a witness should be protected had to specify the reasons for the protection and its type . The pretrial authorities and the court had a direct access to the protected witness and were obliged to verify his identity before the interview . A copy of the record of the interview with a protected witness had to be presented immediately to the accused and his lawyer who were entitled to put questions to the witness . The measures for protection could be discontinued at the request of the protected witness or where they were no longer necessary .","Pursuant to Article ORG of the DATE ORG , the charges and the conviction could not be based exclusively on the testimony of anonymous witnesses .","These provisions were superseded by ORG CARDINAL , CARDINAL and CARDINAL of the DATE CCP , in force since DATE , which repeat their text almost verbatim .","In a binding interpretative decision ( \u0442\u044a\u043b\u043a. \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043d\u0430 ORG \u043f\u043e PERSON \u2116 CARDINAL\/CARDINAL \u0433. , ORG ) of DATE the Plenary Meeting of ORG of ORG resolved a number of contentious issues relating to the construction of various provisions of LAW and the CARDINAL CCP on the prosecution of human trafficking . In point CARDINAL of the decision it held that the victim of a human trafficking offence could participate in the criminal proceedings as an anonymous witness . It held that the accused \u2019s defence rights could be subjected to reasonable restrictions , including by granting anonymity status to the testifying victim , in order to protect the latter \u2019s rights . However , a strict judicial control had to be exercised over the reasons for granting anonymity to testifying victims and over the procedures aimed at counterbalancing the restriction of the defence rights . According to ORG , in cases of anonymous witnesses the legislation provided CARDINAL procedural safeguards against the risk of manipulating the evidence in favour of the prosecution : ( CARDINAL ) the direct contact between the judge and the anonymous witness , which guaranteed , at the very least , that such a witness indeed existed ; ( CARDINAL ) the right of the accused and his lawyer to put questions to the anonymous witness immediately after his questioning ; and ( CARDINAL ) the limited probative importance the legislation attached to anonymous testimony ( see paragraph CARDINAL above ) . The court made reference to the case - law of this Court and concluded that the rules of fair trial would not be breached if the above procedures were strictly complied with , and notably , if the accused has been given the opportunity to put questions to the anonymous witness immediately after the questioning of the latter .","The possibility to interview a witness before a judge , in cases where it is likely that the witness would not be able to attend the trial due to illness , absence or other reasons , or where his testimony would be of \u201c exceptional importance for the establishment of objective truth \u201d , was provided for in Article CARDINALa of the CARDINAL ORG . The provision was inserted with effect from DATE with the aim of creating a possibility to use evidence collected at the pre - trial stage of the proceedings , while at the same time conforming to the principle of immediacy of judicial proceedings . Article CARDINAL \u00a7 CARDINAL specifically provided that the investigator or prosecutor in charge of the interview had to ensure the witness \u2019s presence and \u201c a possibility \u201d for the accused and his counsel to take part in the interview .","Article CARDINAL of the DATE ORG allowed the statement of a witness given at the pre - trial stage to be read out in court if , inter alia , there was a considerable discrepancy between that statement and the ORG testimony given at the trial ; if the witness had not been found and summoned or was unable to appear in court ; or if he had appeared but had refused to testify at trial or had stated that he did not remember anything . If the accused was not represented , the court had to inform him that the testimony thus read out would be used for the determination of the criminal charges against him . Where the statement had been made before a judge , pursuant to LAW , there was no requirement for the court examining the case to obtain the consent of the parties ( LAW ) .","The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation are set out in the ORG \u2019s judgment in the case of PERSON , cited above , \u00a7 \u00a7 DATE .","Under LAW , a convicted individual may benefit from judicial rehabilitation . Such rehabilitation may be granted by the court which convicted him or her , if DATE have elapsed since the serving of the sentence , and the individual concerned has not committed another offence punishable with imprisonment , has demonstrated good behaviour and , in the case of offences committed with intent , has made good any damage done . The latter requirement may be disregarded by the court if there is good reason ( LAW ) .","Section CARDINAL of the DATE State and ORG ( \u201c the ORG \u201d ) , as in force since DATE , provides as follows :","\u201c 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 . \u201d","Pursuant to the consistent case - law of the domestic courts , for the impugned conduct to be considered unlawful , it must be in breach of national law ."],"violated_articles":["P4"],"violated_paragraphs":["P4-2"],"violated_bulletpoints":["P4-2-2"],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1","6-3"],"non_violated_bulletpoints":["6-3-d"],"violated":true}
{"itemid":"001-60507","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2002,"docname":"CASE OF WIERZBICKI v. POLAND","importance":3,"conclusion":"No violation of Art. 6-1","judges":"Elisabeth Palm","text":["NORP In issue No . CARDINAL of a newspaper \u201c ORG \u201d , of which the applicant was an editor - in - chief , a list of informants of the NORP secret police was published . This list had been submitted to ORG ( PERSON ) in DATE by the Minister of ORG , following a resolution of the ORG . The list was originally meant to remain strictly confidential , but its contents were subsequently immediately leaked to the public . In the same issue of the newspaper , apart from the list , the following text , entitled \u201c Deleted at the Last Minute \u201d ( \u201c Wykre\u015bleni w ostatniej chwili \u201d ) , was published : \u201c [ The Minister of ORG ] was until TIME verifying data which he had to submit to ORG , pursuant to its resolution . TIME before the list was submitted to [ ORG ] he had deleted several names from the list , for lack of conclusive evidence . It transpires from our information that these names were : [ ... ] \u201d .The names of CARDINAL well - known politicians followed .","NORP In issue No . CARDINAL of the same newspaper , a text entitled \u201c The List of Informants - a Supplement \u201d ( \u201c ORG konfident\u00f3w - uzupe\u0142nienie \u201d ) was published , which read as follows : \u201c As a result of a misunderstanding , we did not include the following name in the list of persons deleted at TIME from the Minister of ORG 's document , which was published in issue No . CARDINAL of ORG : S.N , and belonging to a category of ORG ( an informant ) , with a pseudonym [ ... , ] who had been recruited [ by the secret police ] during his stay in prison . \u201d ( \u201c Z wydrukowanej w nr CARDINAL PERSON listy < PERSON w ostatniej chwili > wypad\u0142o nam w wyniku nieporozumienia nazwisko ORG , kategoria ORG , kryptonim [ ... ] , kt\u00f3ry zosta\u0142 zwerbowany do wsp\u00f3\u0142pracy w wi\u0119zieniu . \u201d )","On DATE PERSON , who was also a candidate for ORG in elections scheduled for DATE , brought a court action against the applicant before ORG in accordance with LAW . He submitted that the newspaper of which the applicant was an editor - in - chief had published information that he had been an informant of the secret police of the former communist regime . He contended that this was false . He demanded that the applicant publicly revoke this statement and apologise for it by placing paid announcements in numerous newspapers .","On DATE ORG declared itself incompetent to deal with the matter and transmitted the case to ORG .","On DATE the ORG decided that the case should be considered in ordinary contentious proceedings applicable to claims for protection of reputation under LAW and transmitted the case to ORG . Upon appeal , ORG on DATE quashed this decision as it considered that the case should be dealt with by ORG in special proceedings governed by LAW .","On DATE the ORG summoned the applicant by fax sent to his work address to attend a court hearing scheduled for DATE . On DATE the applicant 's lawyer sent a letter to the court in which he protested against the despatch of the summons to the applicant 's place of work instead of to his private address and informed the court that the applicant should be considered as not having been duly summoned . He requested that the hearing be adjourned .","At the hearing on DATE the ORG summoned the applicant to adduce evidence to show that the information concerning the plaintiff PERSON and his alleged involvement with the communist secret police was true .","On DATE the applicant submitted a power of attorney in favour of his representative and requested that the case be pursued by way of ordinary contentious proceedings as the proceedings provided for by LAW had not led to a decision on the merits within DATE period stipulated in this LAW . He requested the court to call as witnesses the former and current Ministers of Internal Affairs as well as PERSON , a well - known politician , and to request ORG to submit various documents in evidence .","On DATE the ORG summoned the applicant and his lawyer by notifications sent by fax to their respective work and office addresses to the hearing fixed for DATE .","At the hearing on DATE before ORG the applicant 's lawyer was present , but the applicant was not . The court pronounced its decision on DATE . It upheld the plaintiff 's claim and ordered the applicant to publicly revoke his statements by placing relevant announcements in numerous newspapers .","In reaching this decision , ORG considered that in the proceedings in question the time - limits for serving summonses set out in LAW did not apply . The applicant 's lawyer had been aware that the proceedings had been instituted since DATE ; he had been given a power of attorney on CARDINAL DATE and had submitted the request to produce evidence on DATE . Thus , he had had enough time to prepare his arguments . The court indicated that it had requested ORG to produce the documents requested by the applicant . On DATE the Ministry had refused to do so as those documents were subject to official secrecy and could only be produced in court in criminal proceedings , in accordance with ORG . The court further observed that it could not call the witnesses proposed by the applicant ; they could only have given evidence as to whether PERSON had been put on the list of informants prepared by ORG , but not as to whether ORG had in fact been an informant . Moreover , in view of the serious nature of the allegations advanced against ORG by the applicant 's newspaper , in the absence of any documentary evidence these allegations could not have been considered proved , even if they had been confirmed by the witnesses . Thus , as the applicant had not adduced any other evidence to prove that the information concerning PERSON was true , the court found against him .","The applicant appealed against this decision , invoking , inter alia , LAW . He contended that the proceedings were null and void as neither the applicant nor his lawyer had been summoned to the hearing on DATE with CARDINAL ' notice , as provided for by LAW of LAW . Furthermore , the applicant 's interests could not be protected properly as he did not have sufficient time to prepare his arguments between the date of receipt of the summons and the date of the hearing . The applicant further argued that , as all his requests to call witnesses and evidence had been refused , he had been denied a reasonable opportunity to prove the facts essential for the merits of the decision .","On DATE the ORG dismissed the appeal . The court considered that the complaint concerning the summons was unfounded . Both the applicant and his lawyer had been summoned DATE before the hearing , which was justified , given the special nature of the proceedings under LAW . The court recalled that , although this provision provided for such cases to be decided within TIME , failure to do so did not oblige the court to deal with the case according to the normal procedures for contentious civil proceedings laid down in the provisions of LAW . Moreover , the applicant , being aware of the special nature of the proceedings , should have expected that he might be summoned from DATE to the next and should have taken effective measures to ensure that the summons reached him in time . These considerations were especially relevant as the applicant was represented by a lawyer who was under a professional obligation to take appropriate measures to this end . In any event , the lawyer received the summons in time to appear at the hearing , even though he contended , unconvincingly , that he had learned about the date of the hearing from a journalist .","As to the merits , the court noted that the lower court had requested the Ministry to submit documents requested by the applicant . However , this request had been refused . In the light of LAW , the refusal had to be considered lawful . Moreover , the very fact that an individual 's name had been included in the list prepared by ORG could not be deemed proof that this person had in fact been an informant . The veracity of information contained in the list had been repeatedly called into question both by interested parties and , more widely , in numerous press articles . It had been emphasised that the list had been prepared and used as a weapon in a political battle , intended to discredit the persons concerned . Therefore , the veracity of a claim that a particular person had been a police informant could not possibly be established solely on the basis of the list itself and without prior verification of the list and , in particular , without some legally established means whereby the rights of persons branded as police informants could be defended . The court accordingly considered that the burden of proof lay with the defendant , who had failed to demonstrate that , at the time of the publication of the information at issue , he had possessed sufficient evidence that ORG had been an informant as alleged .","Article CARDINAL of LAW of DATE provided that a candidate in parliamentary elections could bring a court action seeking rectification of information published about him \/ her during the election campaign and claiming compensation . The court was required to decide the case within TIME . The court could order the publisher of the information to rectify the information immediately and to apologise publicly to the plaintiff , if the information proved to be false or inaccurate . The court could order the defendant to pay compensation to the plaintiff . The provisions of LAW were applicable to proceedings brought before the courts on the basis of this provision .","Article CARDINAL of the Civil Code provides that the person who relies on a fact relevant to his or her case bears the burden of proving that fact . Pursuant to LAW , the parties to civil proceedings are under an obligation to adduce evidence to establish the facts relevant to their claim . Under LAW , evidence can be taken as to the facts which are of relevance for the outcome of the case .","As regards the burden of proof , the case - law of the NORP courts in proceedings instituted on the basis of LAW was inconsistent . In certain cases the courts held that an analysis of LAW read together with the general principle of LAW led to the conclusion that the burden of proof , in cases in which the information concerning a candidate was harmful to his or her good reputation , lay on the person who had published the information in question . The courts argued that in such cases the approach taken in LAW should be followed , in that there was a presumption that attacks on the personal rights of the plaintiff were unlawful . Consequently , it fell to the defendant to prove their lawfulness , in particular by pointing out that the information published about the plaintiff , and which was deemed to be harmful to him or her , was true . Thus the plaintiff was exempted from the obligation to demonstrate that the allegations against him were untrue ( ORG , I ORG CARDINAL\/CARDINAL , DATE CARDINAL ; ORG , I Acz DATE of CARDINAL ) .","In another decision , ORG held that the plaintiff in Article CARDINAL proceedings could not be required to adduce evidence in order to prove that something had not occurred ( ORG , I Acz CARDINAL\/CARDINAL , DATE of CARDINAL ) . In a further case in which the court ordered the defendant to prove that statements about the candidate were true , the court emphasised that , in conformity with the principle ei incumbit probatio qui dicit , non qui negat , it was not possible to require the plaintiff to produce evidence to prove that certain facts had not occurred ( ORG , Acz CARDINAL\/CARDINAL , Dec. CARDINAL.CARDINAL.CARDINAL ) .","On the other hand , in certain decisions given on the basis of LAW , the courts held that that provision in conjunction with LAW required the plaintiff to prove that the statements contained in the contested publications were untrue ( ORG , PERSON CARDINAL\/CARDINAL , DATE ; ORG I Acz DATE ) .","The applicant lodged his application with the ORG , alleging a violation of LAW .","The Commission declared the application partly admissible on CARDINAL DATE . In its report of CARDINAL DATE ( former LAW ) it expressed the opinion , by QUANTITY votes to one , that there had been no violation of LAW on account of the fact that the court refused to take all evidence proposed by the applicant ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79014","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF BOGDANOWICZ v. POLAND","importance":4,"conclusion":"No violation of Art. 5-3","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested and placed in custody . He was suspected of having committed offences of kidnapping and acting in an organisation of a criminal character .","On an unknown date the ORG ordered that the applicant be detained until DATE . The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty , which gave rise to a fear that the applicant would obstruct the proceedings . The court also stressed his relapse into crime .","Subsequent decisions as to the extension of the applicant \u2019s pre - trial detention were taken on DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE .","In all the above - mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order . In addition , they indicated the need to conduct further investigations and the probable collusion of the accused .","On many occasions the applicant unsuccessfully requested his release from detention and , also unsuccessfully , appealed against decisions extending his pre - trial detention .","On DATE a bill of indictment was filed against the applicant and CARDINAL co - accused . The applicant was charged with kidnapping and acting in an organisation of a criminal character .","From DATE to CARDINAL DATE the applicant was serving a prison sentence in respect of another conviction .","On DATE the first hearing was held before ORG . Hearings scheduled for CARDINAL and DATE were postponed due to the necessity of replacing one of the judges .","On DATE a new judge was assigned to the case .","Subsequent hearings were held on DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , QUANTITY DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .","The applicant \u2019s pre - trial detention ended on DATE .","The proceedings are pending before the first - instance court .","On DATE the applicant was arrested and placed in custody .","On DATE the ORG ordered that the applicant be detained for DATE on suspicion of having committed armed robbery and having acted in an organisation of a criminal character . The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty , which gave rise to a fear that the applicant would obstruct the proceedings .","From DATE to CARDINAL DATE the applicant was serving a prison sentence in respect of another conviction .","The applicant \u2019s detention was extended on the following dates : DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE and DATE .","NORP In all the above - mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order . In some of the decisions , the courts also indicated the need to conduct further investigations .","On DATE a bill of indictment was filed against the applicant and CARDINAL co - accused . The applicant was charged with armed robbery and acting in an organisation of a criminal character .","The first hearing , scheduled for DATE , was cancelled due to a judge \u2019s illness .","NORP Subsequent hearings were held on DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE . In DATE and DATE altogether CARDINAL hearings were held . Hearings scheduled for DATE and DATE were cancelled due to a judge \u2019s illness . Subsequently , hearings were held on CARDINAL DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .","On DATE the applicant was released from detention .","On DATE the applicant \u2019s complaint lodged under the Law of DATE on complaints about a breach of the right to a trial within a reasonable time was rejected on formal grounds .","On DATE the ORG convicted the applicant of the offences and sentenced him to CARDINAL GPE imprisonment . On DATE the applicant appealed .","The proceedings are pending before ORG .","For a description of the relevant domestic law , see PERSON v. GPE , no . CARDINAL , judgment of DATE .","On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) entered into force ( \u201c the CARDINAL Act \u201d ) . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings . A party to pending proceedings may ask for the acceleration of those proceedings and\/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW .","On DATE ORG ( S\u0105d Najwy\u017cszy ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date , but only when they had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5051","languageisocode":"ENG","respondent":"GRC","branch":"ADMISSIBILITY","date":2000,"docname":"GLYFADA MUNICIPAL COUNCIL v. GREECE","importance":4,"conclusion":"Inadmissible","judges":"Marc Fischbach","text":["The applicant is a ORG of a suburb of GPE . It is represented before the ORG by PERSON PERSON , a lawyer practising in GPE .","In DATE , ORG constructed CARDINAL tennis courts , a warehouse , a dressing - room and a small bar in an area owned by it . In DATE , it enlarged the site and transferred it to ORG .","By decision no . DATE which altered the development plan in this area , ORG invited the Pireus Prefecture to designate the area as a green and sports area . The Pireus Prefecture did so by decision no . DATE of CARDINAL DATE .","On DATE , a number of residents of PERSON applied to ORG for judicial review of decisions GPE and DATE . The application was directed against ORG , Town Planning and Public Works . On DATE , ORG intervened in the proceedings in favour of the Minister . The hearing took place on DATE and the judgment delivered on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82746","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF VITAN v. MOLDOVA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13+6-1;Violation of P1-1","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","NORP In DATE the applicant concluded a contract with ORG ( a private insurance company incorporated in GPE ) whereby she paid an insurance premium in exchange for a fixed annuity of CARDINAL GPE lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) in addition to her pension ( \u201c annuity \u201d ) . She started receiving her annuity in DATE . In DATE ORG stopped paying it , invoking a change in the interest rate of ORG .","On DATE the applicant brought an action against ASITO , seeking the payment of the annuity to date and requiring the company to abide by the contract .","On DATE ORG ruled in favour of the applicant and ordered ASITO to pay her the pension arrears in the amount of MDL CARDINAL ( the equivalent of MONEY ( ORG ) at the time ) . ASITO lodged an appeal with ORG , which dismissed it on DATE . ASITO did not appeal and the judgment became final and enforceable .","On DATE the applicant lodged a request with ORG seeking enforcement of the judgment in her favour . The latter did not reply , but sent the enforcement warrant to a Bailiff only on DATE .","In the meantime , since in its judgment of DATE ORG had ruled only on the payment of the pension arrears , on DATE it issued an additional judgment in favour of the applicant and ordered ASITO to abide by the contract and to resume the DATE payments . That judgment became final .","DATE the applicant lodged other complaints about the non - enforcement of the judgments in her favour with ORG , the Bailiff , ORG and ORG . On DATE ORG requested ORG to take all necessary steps , including the sanctioning of the persons responsible , in order to enforce the judgments in favour of the applicant and to inform her about the outcome of the enforcement proceedings . The applicant did not receive any further reply ; nor were any sanctions imposed on the debtor company or its employees .","The final judgment of CARDINAL DATE and the additional judgment of CARDINAL DATE were enforced on DATE .","The relevant domestic law was set out in GPE v. GPE , no . CARDINAL , \u00a7 CARDINAL , ECHR CARDINALIII ( extracts ) ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22754","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2002,"docname":"SINCAR v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the Court by Mrs Bedia ORG , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant \u2019s husband , PERSON , was a member of parliament ( MP ) for ORG ( hereinafter referred to as the DEP ) at the time of the event .","On DATE unknown persons shot the brothers of the DEP \u2019s vice president , both MPs for the same party , in Batman . CARDINAL of them died and the other was injured .","On DATE the applicant \u2019s husband , PERSON , and a member of the DEP \u2019s ORG in Batman , who had been sent to the region to investigate these murders , were also shot dead . ORG initiated criminal proceedings against CARDINAL suspects under LAW . He subsequently declined jurisdiction in the matter and transferred the investigation file to the prosecutor of ORG , who brought criminal proceedings against the suspects under LAW , charging them with an \u201c attempt to undermine the constitutional order of the ORG \u201d in relation to the death of the applicant \u2019s husband .","ORG acquitted CARDINAL of the suspects on CARDINAL DATE and the remaining CARDINAL on DATE .","On DATE , PERSON applied for and obtained a copy of the court \u2019s decision to acquit the alleged perpetrators .","On an unspecified date , the former Minister of ORG claimed this murder to have been carried out by a terrorist organisation , namely the ORG . At DATE , the so - called GPE report was produced at the request of the Prime Minister , by Mr Kutlu Sava\u015f , the Vice - President of ORG of ORG . It was stated on DATE of this report that \u201c the murder of ORG had been plotted and carried out in accomplice by PERSON , GPE , \u0130. MONEY , and PERSON and that following this event PERSON had signed a letter in relation to the murder \u201d . This report was not deemed sufficient evidence by the public prosecutors to initiate criminal proceedings against the identified perpetrators .","In NORP law \u2013 for the purposes of preliminary investigations by prosecutors \u2013 criminal acts are divided into CARDINAL categories ; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter , and secondly , those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor ( LAW , hereinafter the ORG ) . Threat is classified as CARDINAL of the crimes in the first category . Murder is classified as one of the crimes in the second category ; however , this does not prevent relatives of victims from lodging criminal complaints with the authorities .","A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators ( LAW ) . The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect ( LAW ORG ) . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , the public prosecutor may close the investigation in respect of that person . However , the public prosecutor may decide not to prosecute if the evidence is clearly insufficient .","Right to intervene in the public prosecution .","Pursuant to LAW ORG , any person who is injured by the offence may , at any phase of the investigation , intervene in the public prosecution . Those so intervening in public prosecution proceedings may also submit their personal claims for adjudication ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93972","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2009,"docname":"CASE OF KARI-PEKKA PIETIL\u00c4INEN v. FINLAND","importance":3,"conclusion":"Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was convicted of aggravated fraud by ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) and sentenced to conditional imprisonment for DATE and DATE .","On DATE the applicant appealed to ORG ( hovioikeus , hovr\u00e4tten ) requesting , inter alia , that an oral hearing be held . The other defendants and CARDINAL of the complainants also appealed to ORG .","On DATE , after having received written observations from the parties , ORG decided to hold an oral hearing . On DATE the parties were summoned to attend the oral hearings which were to take place on DATE , DATE , DATE , and CARDINAL to DATE . It was stated in the decision and in the summons that the applicant was to appear in person at the hearing on all of those days , under penalty of a default fine . His presence was required due to his own appeal as well as the opposing parties\u2019 appeal and in order to be heard by the public prosecutor . However , the hearing of witnesses was to take place between CARDINAL and DATE . Moreover , it was stated in the summons that , if the applicant were to be absent from the main hearing without a valid excuse and despite the penalty of a default fine being imposed , his appeal would be discontinued . As far as the opposing parties\u2019 appeal and the hearing by the public prosecutor were concerned , a new threat of a higher fine could be imposed on the applicant , he could be ordered to be brought to the same or a later hearing , and the case could be decided regardless of his absence . A valid excuse meant circumstances of force majeure or an illness certified by a medical certificate . Work or holiday reasons were normally not considered as valid reasons . ORG was to examine whether the excuse was valid .","The summons was served on the applicant on DATE .","The applicant did not attend the hearing on DATE but was represented by his counsel . He could not be reached by telephone despite several attempts . The public prosecutor requested that the applicant be brought to the hearing but this was not done . The applicant \u2019s counsel indicated that the applicant could most likely be found at his home but that his presence at the hearing on DATE was not necessary as it had been planned in advance that he would be heard only on DATE .","On DATE ORG decided , on the basis of LAW , section DATE , of LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ; Act no . CARDINAL\/CARDINAL ) , that the applicant \u2019s appeal was to be discontinued due to his absence . It found that , since the applicant had not attended the hearing on DATE or notified the court of a valid excuse for his absence , he had to be considered to have been absent even though his counsel had been present . It was stated in the decision that an ordinary appeal was not allowed but if the applicant had had a valid excuse that he had not been able to announce in time , he had the right to a reopening of the case on the basis of the same appeal , by notifying ORG in writing within DATE of the decision to discontinue the appeal . If he could not provide a valid excuse , the case would be ruled inadmissible .","On DATE the applicant attended the hearing as planned and was questioned as a witness .","On DATE the applicant notified ORG in writing that he had had a valid excuse for his absence and that he wanted his case to be reopened . He claimed that the national provision in question , LAW , section CARDINAL , subsection CARDINAL , of LAW , had been too strictly applied . He referred to a ORG judgment in which the court had stated that it was not necessary to summon an applicant to appear in person unless his presence was strictly necessary , for example for questioning . According to ORG , the national provision in question should not be interpreted too strictly . If the applicant was absent from the main hearing but his presence was not deemed strictly necessary , his appeal should not be discontinued due to his absence .","Furthermore , the applicant claimed that the above - mentioned provision most likely failed to comply with the requirements of LAW . When the provision in question had last been amended , the Government had proposed some textual changes in order to reflect better the ORG \u2019s case - law in this respect . These changes were not , however , accepted by the ORG .","NORP Moreover , the applicant claimed that , as there were no rules on how national law was to be applied when the main hearing lasted for DATE , a Convention - friendly approach should have been adopted . ORG had set up a procedural plan according to which the applicant was to be heard in person only on DATE . It was not indicated in the summons that even DATE absence would be regarded as absence from the whole main hearing . The applicant \u2019s presence at the hearing on DATE was thus not strictly necessary and ORG should not have discontinued his appeal . The applicant had never intended to discontinue his appeal .","In any event , the applicant claimed that he had had a valid excuse as he had been ill . He provided a medical certificate and CARDINAL medical documents to that effect .","On DATE ORG rejected the applicant \u2019s notification . It found that the medical certificate had been dated DATE after the hearing and that the doctor had thus not examined the applicant \u2019s health on DATE . On DATE , the applicant had not received any treatment in a hospital or in a similar medical institution . The applicant was suffering from a long - term illness and his treatment was estimated to DATE . Despite the applicant \u2019s state of health , he had been able to attend the hearing on DATE . His illness was thus not of a kind to constitute a valid excuse for absence . The applicant had time to prepare himself well in advance for the hearing and also to take the hearing into account when planning his treatment . Thus , the applicant had not shown that he had had a valid reason to be absent from the hearing on CARDINAL DATE and he had no right to have his case reopened .","On DATE the applicant appealed to ORG ( korkein oikeus , h\u00f6gsta domstolen ) , reiterating the grounds of appeal relied on before ORG and pointing out that ORG had taken no stand on his claims concerning national law and the ORG \u2019s case - law .","On DATE ORG refused leave to appeal .","According to LAW , section CARDINAL , subsection CARDINAL , of LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ; Act no . CARDINAL ) , if the appellant is absent from the main hearing , the appeal shall be discontinued . According to LAW , LAW of MONEY no . CARDINAL\/CARDINAL ) , a party who , in spite of having been ordered to appear in court in person , sends an attorney in his place without a valid excuse , shall be deemed to be absent .","When the current provisions concerning appeals to ORG were amended in DATE and DATE , the following was mentioned in the Government Proposal HE CARDINAL vp . :","\u201c The provision [ LAW , section CARDINAL , subsection CARDINAL , of LAW ] is interpreted [ by ORG , ORG CARDINAL:CARDINAL ] to mean that an appeal of an applicant summoned to appear in person is discontinued if he or she is absent from the main hearing even if he or she is represented by counsel . However , ORG has on many occasions stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended by counsel , in spite of having been properly summoned to appear in person . In its judgments of PERSON and PERSON v. The GPE ( application nos . CARDINAL and GPE , judgment of DATE , points CARDINAL and DATE ) and PERSON v. GPE ( application no . CARDINAL , judgment of DATE , points CARDINAL ) as well as most recently in its judgment Stroek and ORG v. GPE ( application nos . CARDINAL , ORG and CARDINAL , judgment of DATE ) , ORG stated that an accused does not lose this right to be defended effectively by a lawyer merely on account of not attending a court hearing . It is immaterial whether the absence is due to a valid excuse or whether an appeal is possible . It is also immaterial that the defendant was adequately defended in the lower instance . The judgment in the FAC case concerned an action for recovery of a higher court judgment which was given in absentia . The applicant , who was an accused in the criminal proceedings , was represented by her counsel in the recovery proceedings . The higher court \" declared the application void \" . The proceedings were thus similar to those in GPE when an appeal is discontinued . On the other hand , in its judgment of PERSON v. The GPE ( application no . CARDINAL , judgment of DATE , point CARDINAL ) , ORG found no violation when counsel was heard and the case was decided thereafter . In the light of the above ORG \u2019s case - law , it is not entirely clear what should be done regarding an appeal of an applicant who is an accused in criminal proceedings and who , despite being summoned , does not appear in person at the main hearing . \u201d","NORP However , it was proposed that LAW , section CARDINAL , subsection CARDINAL , of LAW be amended so that an appeal by an applicant summoned to appear in person would no longer be discontinued if he or she were absent from the main hearing but represented by counsel . It was felt that it was better that the applicant in such situations received a decision on material rather than procedural grounds .","ORG estimated , however , in its report LaVM CARDINAL\/CARDINAL vp . , that as it was debatable whether these amendments were necessary , and since they were causing inconvenience for the functioning of the appeal courts , the amendments should not be adopted . The proposed amendments were thus withdrawn .","ORG took a stand on this issue in its judgment of DATE ( ORG CARDINAL ) . It found , inter alia , the following :","\u201c CARDINAL . ORG has in many judgments stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended , and that he could not be deprived of this right merely on account of not attending a court hearing . According to the ORG , even if the legislature had to be able to discourage unjustified absences , it could not penalise them by creating exceptions to the right to legal assistance ( see GPE v. GPE , judgment of DATE , PERSON v. The GPE and PERSON v. The GPE , judgments of CARDINAL DATE , as well as PERSON v. GPE , judgment of DATE , PERSON v. GPE , judgment of CARDINAL DATE and ORG v. GPE , judgment of DATE ) .","......","When deciding in what situations a case can be examined only when the applicant is present in person and in what situations the applicant has the right to defend himself through legal assistance of his choosing , one has to distinguish different situations in the criminal proceedings . If the applicant is heard in order to clarify the matter , his presence in person is necessary . When , however , other witnesses are heard or the parties are heard in order to assess legally the act described in the indictment or the defence , it is appropriate that questioning is undertaken and the statements are given by a legal representative . It is also clear that when the applicant exercises his right to question or to give legal statements , he can not be deprived of his right to use legal assistance and that his presence in person in those situations is not necessary . Therefore , the applicant should not be obliged to appear in person under penalty of a default fine unless the outcome of the case might depend on the reliability of his account or his presence in person is necessary for some other reason .","According to the provisions concerning the proceedings in appeal courts , an appeal court can not , without any particular grounds , change the district court \u2019s conclusions concerning the evidence if persons meant to be heard as witnesses are absent from the main hearing . The starting point is that a higher instance should have the same possibility to assess the oral testimony as a district court , the correctness of whose judgment is being assessed by the higher instance . This means , inter alia , that the principle of immediate presentation of evidence must be applied also on appeal . It does not follow from the wording of LAW , section DATE , of LAW , nor did it follow from it at the time when ORG examined the case , that an appeal should always be entirely discontinued when the applicant is absent from the main hearing , even though summoned to appear in person . The court which has the right and the obligation to conduct the proceedings can and indeed must then decide whether the examination of some parts of the appeal by hearing only counsel is necessary or reasonable . When considering this , the court must take into account the applicant \u2019s justified legal expectations . If it becomes clear that the applicant \u2019s presence in person is , in spite of the given order , not necessary , his appeal should not in this kind of situation be even partly discontinued due to his absence . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59075","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2000,"docname":"CASE OF ENTLEITNER v. AUSTRIA","importance":3,"conclusion":"No violation of Art. 6-1 as regards independency and impartiality;Violation of Art. 6-1 as regards lack of a public hearing","judges":"Nicolas Bratza","text":["The applicant is a farmer living in GPE , GPE .","On DATE the applicant applied to ORG ( PERSON , ORG ) for declarations ( CARDINAL ) that the share in an agricultural association ( Agrargemeinschaft ) represented by a certain parcel of land ( \" the share \" ) belonged to him , and ( CARDINAL ) that grazing rights in that parcel ( \" the grazing rights \" ) also belonged to him . On DATE ORG found that the applicant had not made out his claims , and it declared that the share and the grazing rights belonged to a third person . The applicant appealed to ORG ( ORG , ORG ) .","ORG dismissed the applicant 's appeal on DATE . After an oral hearing , it found , so far as relevant , that the share had passed with a transfer of the land to CARDINAL party in DATE ( as rectified in DATE ) . The question of the grazing rights had to be determined by reference to the ownership of the land on DATE , as that was the last time they were officially mentioned . In the absence of any express alienation of the grazing rights since then , the grazing rights passed with the land - that is , the applicant did not own them .","The Constitutional Court ( Verfassungsgerichtshof ) declined to deal with the applicant 's constitutional complaint on DATE . It remitted the case to ORG ( Verwaltungsgerichtshof ) .","On DATE ORG dismissed the applicant \u2019s complaint rejecting at the same time , in accordance with section CARDINAL ) no . CARDINAL of LAW ( PERSON ) , the applicant \u2019s request for an oral hearing . The judgment was served on the applicant \u2019s representative on DATE .","A summary of the rules concerning the composition and procedure before the regional land reform boards , and hearings before ORG may be found in the PERSON and PERSON v. GPE judgment ( DATE , Reports of Judgments and Decisions DATE , pp . CARDINAL - CARDINAL , \u00a7 \u00a7 DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78663","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"SIMSEK v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Batman . He is represented before the Court by Ms Y. PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested by police officers from the anti - terrorist branch of ORG on suspicion of his involvement in the ORG .","On DATE the applicant was brought before the public prosecutor and the investigating judge , who remanded the applicant in custody .","On DATE the public prosecutor at ORG filed an indictment with the same court accusing the applicant of being a member of the ORG .","On DATE , after the promulgation of Law No . CARDINAL , which abolished ORG , the case file was transferred to ORG . The criminal proceedings at ORG began on DATE .","On DATE the ORG convicted the applicant of the offence as charged and sentenced him to the death penalty . It then commuted this to life imprisonment .","On DATE ORG quashed the judgment of ORG on account of \u201c the lack of a final investigation \u201d and remitted the case file back to the latter .","The criminal proceedings at ORG began on DATE . On DATE the court convicted the applicant of the same offence and issued the same sentence .","On DATE ORG quashed the judgment of the first instance court and remitted the case to ORG .","On DATE , ORG , after having complied with the requirement of ORG , sentenced the applicant to life imprisonment .","On DATE ORG upheld the latter judgment . The applicant was notified of this judgment on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-138936","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2013,"docname":"POPIV\u010c\u00c1K v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;J\u00e1n \u0160ikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .","He was represented before the ORG by Mr T. \u0160af\u00e1rik , a lawyer practising in PERSON .","The Government of GPE ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The facts of the present case revolve around a piece of real property , situated in a regional capital , which used to form part of the site of a factory belonging to a ( socialist ) ORG - owned enterprise .","In DATE an above - ground heat distribution pipeline was built in the area in order to provide it with heating . The pipeline passes through the property in question .","The applicant is a self - employed entrepreneur . In that capacity , in DATE and DATE he rented the said property from the private company which had meanwhile become its owner . Subsequently , in DATE , the applicant himself acquired title to the property by way of purchase .","The property forms a part of a shop in which the applicant runs a business which is essentially a car scrapyard .","The property partly consists of a road . According to the ORG \u2019s submission , which is supported by photographs and which has not been contested by the applicant , the remaining part of the property is used for storing wrecked cars .","The pipeline runs alongside the applicant \u2019s LOC QUANTITY above the ground and CARDINAL from the fence , and it rests on pylons anchored in the ground .","The pipeline belongs to a commercial joint - stock company producing and distributing heating for the town concerned .","The bone of contention in the present case is the lack of compensation for the restrictions on the use of the applicant \u2019s property due to the pipeline . The applicant unsuccessfully applied for such compensation in the proceedings which lie at the heart of the present case . However , prior to those proceedings he had asserted similar claims in another set of proceedings , but also unsuccessfully . Both sets of proceedings are described below , chronologically , with focus on the contested proceedings .","Until DATE , by virtue of section CARDINAL(CARDINAL)(l ) of LAW ( Law no . PERSON . , as in force at the relevant time ) , real property encumbered by easements such as the one in the present case were exempt from real - estate tax . According to the Government , whose submission the applicant has not contested , from DATE this exemption continued to apply to the property in question by virtue of a decision of the municipality concerned .","In DATE the applicant lodged an action against the above - mentioned heat production and distribution company seeking compensation in respect of unjustified enrichment on account of the easement relating to the pipeline .","The action was dismissed by the Ko\u0161ice II District Court ( ORG s\u00fad ) on DATE and , following an appeal by the applicant , by ORG ( PERSON s\u00fad ) on DATE .","On DATE the applicant lodged a new action against the same defendant , arguing that the latter was the owner of the pipeline and that , along with the protective zones around it , the pipeline prevented him from making use of QUANTITY of his property .","The applicant submitted that the average yearly rent for land in the area was equivalent to MONEY ( ORG ) per square metre . Accordingly , the applicant requested an order for the payment of the equivalent of approximately ORG CARDINAL,CARDINAL to cover DATE before the introduction of his action , plus DATE .","In support of his claims , the applicant invoked , inter alia , Articles CARDINAL of Protocol No . CARDINAL and QUANTITY of the LAW no . PERSON . , as amended ) , as well as the relevant provisions of LAW ( Law no . CARDINAL\/CARDINAL Coll . , as amended ) and the DATE Thermal Energy Sector Act ( Law no . PERSON . , as amended ) .","The applicant also relied on a judgment ( n\u00e1lez ) of ORG ( \u00dastavn\u00ed soud ) of GPE ( whose legal tradition is similar to that of GPE ) of DATE in case no . ORG CARDINAL\/CARDINAL .","That judgment concerned , inter alia , the continued application of the DATE LAW ( Law no . QUANTITY . ) ( see below ) , which had been adopted at the time of GPE . ORG observed an ideological distinction between the \u201c old law \u201d , that is to say , that of the \u201c old ( NORP ) regime \u201d prior to DATE , and the law applicable under the subsequent democratic constitution . This distinction reflected the political and economic changes that had taken place . While there was a general continuity with the old law , there was a discontinuity in respect of the values of the old regime . Thus , the interpretation and application of the old rules had currently to take due account of the protection of human rights and fundamental freedoms , including the protection of property . The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain . While the lawfulness of the creation of an ex lege easement as such was undisputed , where the applicable publiclaw legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement , the relevant provisions of private law were to be used as an alternative . Such provisions provided for compensation in respect of running costs , which was to be agreed on by those concerned or to be ordered by a court . A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement .","The action was dismissed by ORG on DATE and , following an appeal by the applicant , by ORG on DATE . The courts\u2019 reasoning can be summarised as follows .","To start with , the courts found that , although the action concerned the same parties and the same property and was based on the same line of argument , the matter was not res judicata by reason of the judgments of DATE and DATE ( see paragraph CARDINAL above ) . This was so because the claims raised in it concerned a different period of time ( see paragraph CARDINAL above ) , and new legislation had been enacted in the meantime ( see below ) .","NORP In this regard , the courts observed that the heat - distribution facility had been built under a construction permit granted in DATE ; that it had begun to operate in DATE ; and that it was located on land which , at that time , had belonged to the ( socialist ) State .","By operation of section CARDINAL of ORG no . CARDINAL\/CARDINAL Coll . ( applicable at the relevant time ) on the implementation of the DATE LAW , the application of that LAW had been extended to heatdistribution facilities , such as the one in the present case .","The DATE LAW thus authorised the construction of the facility but , as a matter of principle , it did not provide for compensation . However , if the owners or users of the real property concerned were significantly encumbered in its use , they could claim adequate CARDINAL - off compensation . The claim had to be filed within DATE of the entry of the installation into use or else it would lapse .","The DATE LAW provided for ex lege easements and the subsequent legislation , in particular section ORG ) of the DATE LAW ( Law no . CARDINAL\/CARDINAL Coll . ) and section CARDINAL(CARDINAL ) of the DATE Thermal Energy Sector Act , had left them intact . None of these pieces of legislation envisaged any compensation for the restrictions inherent in the continued existence of the ex lege easements , other than the CARDINAL - off compensation at the time of their creation . Providing for new compensation claims would have the effect of creating new titles to restitution , which the lawmaker was free under LAW not to choose to do .","The applicant had acquired his plot in DATE by purchasing it from a private seller . It had been his responsibility to examine the condition of the property , including the existence of the impugned ex lege easement , and to ensure that that was reflected in the purchase price . The contested ex lege easement fell outside the scope of the existing unjustified - enrichment rules , which accordingly were not applicable .","On DATE the applicant challenged the judgement of the ordinary courts by way of a complaint before ORG ( \u00dastavn\u00fd s\u00fad ) under LAW .","In substance , he reiterated the above arguments and alleged a violation of his rights under Articles CARDINAL \u00a7 CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL .","In addition , he submitted that the ORG argument concerning how he had acquired the property was of secondary importance and did not deal with the question of principle obtaining in cases such as his .","On DATE ORG declared the complaint inadmissible as being manifestly ill - founded .","ORG reiterated its established case - law to the effect that a general court could not bear \u201c secondary liability \u201d for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure . However , no such procedural issue had been established .","The essence of the applicant \u2019s complaint was that there was no law enabling him to claim compensation for the ex lege easement over his property . However , in contrast to some other jurisdictions , including GPE , an individual in GPE had no power to challenge the compliance of the legislation , or lack of it , with the LAW . The applicant \u2019s argument made in reliance on the case - law of ORG of GPE was therefore without consequence .","The ordinary courts had supported their judgments by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification .","The Charter ( Constitutional Law no . CARDINAL\/CARDINAL ORG . ) was introduced into the legal order by way of a constitutional law which was enacted by ORG of the NORP and GPE on DATE and which entered into force on DATE . The law remains in force in GPE DATE .","The relevant part of LAW provides :","\u201c CARDINAL . Everyone has the right to own property . Each owner \u2019s property right shall have the same content and enjoy the same protection . [ The right of ] inheritance is guaranteed .","The law shall designate the property necessary for securing the needs of society as a whole , the development of the national economy , and public welfare , which may be owned exclusively by the ORG , a municipality , or by designated legal persons ; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the NORP and GPE .","Ownership entails obligations . It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests . It may not be exercised so as to cause harm to health , nature , or the environment beyond the limits laid down by law .","Expropriation or some other mandatory limitation upon property rights is permitted in the public interest , on the basis of law , and for compensation . \u201d","The relevant part of LAW provides :","\u201c CARDINAL . Everyone shall have the right to own property . The property rights of all owners shall be uniformly construed and equally protected by law . The right of inheritance is guaranteed .","...","Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest , in accordance with the law and for adequate compensation . \u201d","Articles CARDINAL \u00a7 CARDINAL :","\u201c The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra ORG mores . \u201d","Article CARDINAL :","\u201c The owner shall be entitled , within the limits prescribed by law , to hold the object of his ownership , to use it , to benefit from its fruits and proceeds and to make dispositions in respect of it . \u201d","Article CARDINAL :","\u201c All owners shall have the same rights and duties and shall be granted the same legal protection . \u201d","Article CARDINAL :","\u201c CARDINAL . The owner of a thing must endure the use of his thing [ by another person ] in a state of emergency or in a pressing public interest , for the necessary time , to the necessary extent , and in return for compensation , if the purpose can not be achieved otherwise .","In the public interest , ... the ownership of [ a thing ] may be restricted if the purpose can not be achieved otherwise , provided that the expropriation or restriction has a basis in law , and only for that purpose and for compensation . \u201d","Article CARDINALn et seq . provides for basic rules in relation to easements :","\u201c CARDINAL . Easements shall constitute a restriction on the owner of real property for the benefit of someone else , so that the owner must endure , refrain from doing or do something . The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person .","Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property .","Unless the participants agree otherwise , the person who is entitled to use somebody else \u2019s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair ; however , if the thing is co - used by its owner , the owner must bear these costs in proportion to the extent of the joint use . \u201d","The relevant part of LAW provides :","\u201c Easements can arise on the basis of a written contract , on the basis of a will , in connection with the outcome of inheritance proceedings , on the basis of an approved agreement among the heirs , on the basis of a decision by the competent authority , or by operation of law . \u201d","Under section CARDINAL(CARDINAL ) of the DATE LAW , an enterprise active in the energy sector was entitled : ( a ) to build and operate electrical installations on other ORG real property to the extent permitted under the building permit , to erect support pylons , to connect the plots by conductors and to establish the electricity main on them ; ( b ) to access the real property directly concerned for the purposes of the construction , operation , maintenance , and modification or removal of the main ; and ( c ) to remove or prune trees obstructing the main .","Subject to section CARDINAL(CARDINAL ) , the exercise of the entitlements pursuant to section CARDINAL(CARDINAL ) was subject to no compensation . However , if the owners or users of real property not belonging to the ( socialist ) ORG were significantly encumbered in the use of the property because of the establishment of the main , they could a claim with the construction authority for the company concerned to pay them adequate CARDINAL - off compensation . The claim was to be submitted within DATE of the entry of the installation into permanent use on the pain of expiry .","NORP Under CARDINAL of ORG no . CARDINAL\/CARDINAL Coll . ( as in force at the relevant time ) on the implementation of the DATE LAW , the application of section CARDINAL and certain other provisions of the DATE LAW was extended to heat - distribution facilities .","The DATE LAW was abolished and replaced by the DATE LAW as of DATE , which in turn was abolished by virtue of LAW ( Law no . PERSON . ) as of DATE .","However , under both Acts , as well as under the DATE Thermal Energy Sector Act , entitlements in respect of other ORG real property and limitations on the use of it which had been established previously remained intact .","Under the relevant part of section CARDINAL of the DATE Thermal Energy Sector Act ,","\u201c CARDINAL . The holder of a licence [ to carry out business in the thermal energy sector ] ... shall have the right :","a ) to enter with machinery or on foot another person \u2019s land , buildings or facilities in connection with the operation , service , taking of readings , repairs and maintenance of the heating facility network ... after obtaining the consent of the owner of the real property [ concerned ] , which consent shall not be required in the event of an immediate threat to life , health or property ... ,","b ) in a protective zone to remove and prune trees and other coppice which undermines the security and reliability of the thermal energy facilities if the owner or other entitled user of the real property [ concerned ] has not done so despite a previous written request ... ,","The holder of the licence is liable for :","...","c ) providing CARDINAL - off compensation for the restriction on the exercise of ownership rights in respect of real property which he or she has entered in the discharge of his or her tasks under [ the above - cited ] sub - section CARDINAL , \u201d","In addition , under section CARDINAL(CARDINAL)(a ) of the DATE Thermal Energy Sector Act , individuals and legal entities are entitled to adequate compensation for restrictions on the exercise of their ownership rights due to the establishment of a protective zone , and for entry onto their real property for the purposes of the reconstruction , repair or maintenance of a system of thermal installations .","By way of an action in LOC ( case no . CARDINAL CARDINAL\/CARDINAL ) , an individual sued a municipality and a public - transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system . The legal provisions applicable in respect of such installations were similar to those applicable in the present case . For unclear reasons the applicants were third parties to the proceedings .","NORP In the context of those proceedings , ORG challenged before ORG the constitutionality of section ORG ) of the DATE LAW , applicable by virtue of section CARDINAL(CARDINAL ) of QUANTITY , which had replaced LAW .","On DATE ORG dismissed the challenge ( case no . PL . \u00daS CARDINAL\/CARDINAL ) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation . Providing for new compensation claims would amount to enabling new restitution claims , which the lawmaker was free under LAW to choose not to do ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108992","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2012,"docname":"TABASSUM v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["NORP The applicant , Mr PERSON , was born in DATE and lives in GPE . His nationality is in dispute . He maintains that he is a national of GPE ; the Government maintain that he is a NORP national .","NORP The facts of the case , as submitted by the applicant , may be summarised as follows .","NORP The applicant claims to have been born in GPE to a NORP mother and a NORP father , and thus to have NORP nationality . He claims that he returned as a young child with his father to GPE , where he lived until he re - entered GPE in DATE , travelling with both his expired child \u2019s NORP passport and his valid NORP passport . There is no evidence to support this account , as he claims that both passports were subsequently stolen from him .","NORP In DATE , the applicant was convicted for persistently soliciting a woman for prostitution and fined . He was convicted in DATE of obtaining property by deception , for which he was sentenced to CARDINAL years\u2019 imprisonment . He was convicted in DATE of soliciting persons for car hire without a licence and driving whilst uninsured , for which he received a fine . He was convicted in DATE of driving whilst uninsured , for which he was fined and disqualified from driving for DATE . On DATE , he was convicted of forgery . He was sentenced to CARDINAL months\u2019 imprisonment and deportation proceedings against him were initiated . He was notified of his liability to deportation on DATE and did not make any representations in response . Nor did he appeal against deportation . On DATE , he was served with a signed deportation order . At the expiry of his sentence on DATE , the applicant was taken into immigration detention pending his deportation .","On DATE , whilst still in prison , the applicant refused to attend an interview with ORG for GPE in GPE to obtain a travel document . Following a warning , however , he attended an interview on DATE . The NORP authorities were not prepared to accept that the applicant was a national of GPE ; however , subsequent to the interview , further documentation was sent to ORG by the NORP authorities in evidence of the applicant \u2019s connection to GPE . Regular reminders have since been sent by the NORP authorities and , on DATE , a response was received from ORG , stating that the applicant \u2019s national status was required to be verified from GPE .","The applicant sought permission to apply for judicial review of the legality of his detention . Permission was granted and a substantive hearing was held before ORG on DATE . The onus was on the applicant to prove his claimed NORP citizenship and the judge found that , on the evidence before him and having regard to the applicant \u2019s dishonesty and use of false identities in the past , he had not done so . He had not established that any of the identities he had claimed in the past were actually his , or that he had been born in GPE to a NORP mother , as he claimed . Having failed to prove that he was NORP , he must be treated as a foreign criminal , and was thus liable to detention pending his deportation . The judge was satisfied that the Secretary of ORG was genuinely using the power to detain for the purposes of effecting the applicant \u2019s deportation . While the DATE period of immigration detention was long , it was not unreasonable , given the applicant \u2019s insistence that he was NORP when he was not , and his failure to disclose sufficient details about his years in GPE to enable the NORP authorities to issue him with a travel document . The judge also accepted the Secretary of ORG \u2019s decision that the applicant presented a high risk of absconding and of committing further offences if granted immigration bail ; the fact that the applicant was failing to cooperate in obtaining a travel document only reinforced this risk . The key point was that the obstacles to the applicant \u2019s deportation had been created by the applicant himself and his failure to give an honest account to either the NORP or NORP authorities . Given that his claim to be NORP had now been examined and rejected by a court , the judge found that the applicant might now be minded to disclose the necessary information to the authorities to enable a travel document to be issued . There was a sufficiently realistic prospect that the applicant \u2019s deportation would take place within a reasonable time to render his continued detention lawful .","The applicant notified the ORG on DATE that he had been released from detention . He did not provide any information as to why he had been released .","Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .","Section CARDINAL(CARDINAL ) of the same LAW provides that when any question arises as to whether a person is a NORP citizen or not , the onus shall be on the person asserting such citizenship to prove it .","Paragraph CARDINAL of Schedule CARDINAL of the same LAW provides that , where a deportation order is in force against any person , he may be detained under the authority of the Secretary of ORG pending his removal or departure from GPE .","ORG recently reaffirmed principles that had been set down in the case of NORP v. Governor of ORG , ex parte ORG PERSON ( DATE ) CARDINAL WLR CARDINAL regarding the Secretary of ORG \u2019s power to detain those whose deportation is pending , in GPE ( WL ) v Secretary of ORG for ORG [ DATE ] ORG . The principles are as follows : i ) the Secretary of ORG must intend to deport the person and can only use the power to detain for that purpose ; ii ) the deportee may only be detained for a period that is reasonable in all the circumstances ; iii ) if , before the expiry of the reasonable period , it becomes apparent that the Secretary of ORG will not be able to effect the deportation within a reasonable period , he should not seek to exercise the power of detention ; and iv ) the Secretary of ORG should act with reasonable diligence and expedition to effect removal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71594","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2005,"docname":"CASE OF BEKOS AND KOUTROPOULOS v. GREECE","importance":1,"conclusion":"Violations of Art. 3;No separate issue under Art. 13;No violation of Art. 14+3 (alleged racist treatment);Violation of Art. 14+3 (failure to investigate possible racist motives);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicants , who are NORP nationals of GPE origin , were born in DATE and live in PERSON ( Western Greece ) .","On DATE , at TIME , a patrol car from the PERSON police station responded to a telephone complaint reporting the attempted burglary of a kiosk . The call had been made by the grandson of the owner of the kiosk , Mr Pavlakis . Upon arriving at the scene , the latter found the first applicant attempting to break into the kiosk with an iron bar while the second applicant was apparently acting as a lookout . He struggled with the second applicant , who subsequently stated that Mr Pavlakis had punched him in the face .","At that point QUANTITY police officers , PERSON , Mr PERSON and PERSON PERSON , arrived . The first applicant claimed that he was initially handcuffed without being beaten . Then , an officer removed his handcuffs and repeatedly beat him on the back and the head with a truncheon . He stopped when the first applicant complained that he had a medical condition and was feeling dizzy .","Following their arrest , the applicants were taken to the PERSON police station , where officers NORP , GPE , GPE , ORG and PERSON were present . The first applicant alleged that as he was being led to his cell CARDINAL officer beat him twice with a truncheon and another slapped him in the face .","At TIME the first applicant was taken to the interview room , where allegedly QUANTITY police officers punched him in the stomach and the back , trying to extract confessions to other crimes and information about who was dealing in drugs in the area . According to the first applicant , the police officers took turns beating him , slapping him and hitting him all over his body . The first applicant further alleged that another police officer beat him with the iron bar that had been used in the attempted burglary . He alleged that this officer also pushed him against the wall , choking him with the iron bar and threatening to sexually assault him , saying \u201c I will f ... you \u201d , while trying to lower his trousers .","The second applicant said that he was also abused throughout his interrogation . During TIME , he was allegedly beaten with a truncheon on his back and kicked in the stomach by an officer who later returned to beat him again . Subsequently , the second applicant identified the officer as Mr Tsikrikas . The second applicant also testified that the police officers \u201c inserted a truncheon in [ his ] bottom and then raised it to [ his ] face , asking [ him ] whether it smelled \u201d .","The applicants stated that they were both able to hear each other \u2019s screams and cries throughout their interrogation . The first applicant testified before the domestic court : \u201c I could hear PERSON crying in the other room \u201d . The second applicant stated : \u201c I screamed and cried when they were beating me . I could also hear PERSON \u2019s screams and cries \u201d . They also claimed that they suffered repeated verbal abuse about their GPE origins . In his sworn deposition dated DATE the first applicant testified before the public prosecutor that the officer who had choked him with the iron bar said to him \u201c you guys f ... your sisters \u201d and \u201c your mothers are getting f ... by others \u201d ( see also paragraph CARDINAL below ) .","The Government disputed that the applicants had been assaulted or subjected to racial abuse while in police detention .","The applicants remained in detention until TIME of CARDINAL DATE . At TIME they were brought before ORG . The first applicant was charged with attempted theft and the second applicant with being an accomplice . ORG set a trial date and released the applicants . In DATE the applicants were sentenced to CARDINAL days\u2019 and CARDINAL days\u2019 imprisonment respectively , in each case suspended for DATE .","On DATE , the applicants went to the regional hospital in order to obtain medical evidence of their injuries . However , the intern they saw at the hospital was only able to verify that they both had bruises . In order to acquire stronger evidence of their injuries , the applicants consulted a forensic doctor in GPE . The latter issued a medical certificate dated DATE , in which he stated that the applicants bore \u201c moderate bodily injuries caused in the past TIME by a heavy blunt instrument ... \u201d In particular , the first applicant had \u201c QUANTITY deep red ( almost black ) parallel contusions with areas of healthy skin , covering QUANTITY stretching from the left shoulder joint to the area of the deltoid muscle and the right shoulder joint . He complains of pain in his knee joint . He complains of pain in the left parietal area \u201d . The second applicant had \u201c multiple deep red ( almost black ) parallel \u2018 double\u2019 contusions with areas of healthy skin covering QUANTITY stretching from the left shoulder joint along the rear armpit fold at the lower edge of the shoulder blade , a contusion of the aforementioned colour measuring QUANTITY on the rear left surface of the upper arm and a contusion of the aforementioned colour measuring QUANTITY on the right carpal joint . He complains of pain on the right side of the parietal area and of pain in the midsection . He complains that he is suffering from a torn meniscus in the right knee , shows pain on movement and has difficulty walking \u201d . The applicants produced to the ORG pictures taken on DATE of their release , showing their injuries . The Government questioned the authenticity of these pictures and affirmed that they should have first been produced to the domestic authorities . They also questioned the credibility of the forensic doctor who examined the applicants and submitted that he had convictions for perjury .","On CARDINAL DATE ORG and ORG sent a joint open letter to ORG protesting against the incident . The letter bore the heading \u201c subject matter : incident of ill - treatment of young GPE ( NORP ) by police officers \u201d ; it stated that members of the above organisations had had direct contact with the CARDINAL victims during a lengthy visit to GPE camps in GPE and that they had collected CARDINAL statements concerning similar incidents of ill - treatment against GPE . ORG and ORG urged ORG in person to ensure that a prompt investigation of the incident was carried out and that the police officers involved be punished . They expressed the view that precise and detailed instructions should be issued to all police stations in the country regarding the treatment of GPE by the police . Reports of the incident were subsequently published in several NORP newspapers .","On DATE , responding to the publicity that had been generated , ORG launched an informal inquiry into the matter .","After the incident received greater public attention , the NORP police headquarters requested that the internal investigation be upgraded to ORG ( \u0395\u03bd\u03bf\u03c1\u03ba\u03b7 \u0394\u03b9\u03bf\u03b9\u03ba\u03b7\u03c4\u03b9\u03ba\u03ae \u0395\u03be\u03ad\u03c4\u03b1\u03c3\u03b7 ) , which started on DATE .","NORP The report on the findings of ORG was issued on DATE . It identified the officers who had arrested the applicants and found that their conduct during the arrest was \u201c lawful and appropriate \u201d . It concluded that CARDINAL other police officers , Mr Tsikrikas and PERSON PERSON had treated the applicants \u201c with particular cruelty during their detention \u201d . The report noted that the first applicant had consistently identified the above officers in his sworn depositions of DATE and CARDINAL DATE and that the second applicant had also consistently and repeatedly identified throughout the investigation Mr Tsikrikas as the officer who had abused him .","More specifically , it was established that Mr Tsikrikas had physically abused the applicants by beating them with a truncheon and\/or kicking them in the stomach . It further found that although the CARDINAL officers had denied ill - treating the applicants , neither officer was able to \u201c provide a convincing and logical explanation as to where and how the above plaintiffs were injured , given that according to the forensic doctor the ill - treatment occurred during the time they were in police custody \u201d .","As a result , it was recommended that disciplinary measures in the form of \u201c temporary suspension from service \u201d be taken against both Mr NORP and Mr GPE . The inquiry exculpated the other police officers who had been identified by the applicants . Despite the above recommendation , neither Mr NORP nor PERSON NORP were ever suspended .","On DATE the Chief of the NORP Police fined Mr Tsikrikas CARDINAL,CARDINAL drachmas ( MONEY ) for failing to \u201c take the necessary measures to avert the occurrence of cruel treatment of the detainees by his subordinates \u201d . The Chief of ORG acknowledged that the applicants had been ill - treated . He stated that \u201c the detainees were beaten by police officers during their detention ... and were subjected to bodily injuries \u201d .","On DATE the applicants and the first applicant \u2019s father filed a criminal complaint against the Deputy Commander in Chief of the PERSON police station and \u201c all other \u201d officers of the police station \u201c responsible \u201d .","On DATE the first applicant gave a sworn deposition relating to his allegations of ill - treatment . He claimed that during his arrest , he had been beaten on the head with a truncheon by a \u201c tall , blond \u201d policeman , who also gave him a beating in the police station and that he had been subjected to racial insults ( see paragraph CARDINAL above ) .","On DATE ORG asked the PERSON investigating judge to conduct a preliminary inquiry into the incident ( \u03c0\u03c1\u03bf\u03b1\u03bd\u03ac\u03ba\u03c1\u03b9\u03c3\u03b7 ) . The findings of the inquiry were then forwarded to the Prosecutor of ORG . In DATE ORG ordered an official judicial inquiry into the incident ( \u03ba\u03cd\u03c1\u03b9\u03b1 \u03b1\u03bd\u03ac\u03ba\u03c1\u03b9\u03c3\u03b7 ) .","On DATE and DATE the first applicant stated that the behaviour of the police officers \u201c was not so bad \u201d , that he wanted \u201c this story to be over \u201d and that he did not want \u201c the police officers to be punished \u201d . On DATE applicant repeated that he had received a beating at the hands of Mr Tsikrikas , but said that the police ORG behaviour was \u201c rightfully bad \u201d and that he did not want them to be prosecuted . He apologised to the owner of the kiosk and said that he wanted \u201c this story to be over \u201d because he has joining the army and wanted \u201c to be on the safe side \u201d .","On DATE ORG recommended that CARDINAL police officers , PERSON , PERSON and PERSON , be tried for physical abuse during interrogation .","On DATE ORG of ORG ( PERSON ) committed PERSON Tsikrikas for trial . It found that \u201c [ the ] evidence shows that Mr Tsikrikas ill - treated [ the applicants ] during the preliminary interrogation , in order to extract a confession from them for the attempted theft ... and any similar unsolved offences they had committed in the past \u201d . ORG further stated that Mr Tsikrikas had failed to provide a plausible explanation as to how the applicants were injured during their interrogation and noted that they had both identified Mr Tsikrikas , without hesitation , as the officer who had ill - treated them . On the other hand , it decided to drop the criminal charges against Mr PERSON and Mr Skoutas on the ground that it had not been established that they were present when the events took place ( bill of indictment no . CARDINAL\/CARDINAL ) .","Mr Tsikrikas \u2019s trial took place on CARDINAL and DATE before the CARDINAL - member ORG . The court heard several witnesses and the applicants , who repeated their allegations of ill - treatment ( see paragraphs CARDINAL above ) . Among others , the court heard Mr PERSON , a representative of ORG , who stated that the said organisation was monitoring the situation of GPE in GPE and that the incident was reported to him during a visit to the Roma \/ Gypsy camps . He claimed that he was horrified when he saw the injuries on the LOC bodies and that the latter were initially afraid to file a complaint against the police officers . Mr PERSON also referred to the actions subsequently taken by ORG in order to assist the applicants . The court also read out , among other documents , ORG and ORG open letter to ORG ( see paragraph CARDINAL above ) .","On DATE the court found that there was no evidence implicating Mr Tsikrikas in any abuse and found him not guilty ( decision no . CARDINAL\/CARDINAL ) . In particular , the court first referred to the circumstances surrounding the applicants\u2019 arrest and to the subsequent involvement of members of ORG in the applicants\u2019 case , noting their role in monitoring alleged violations of human rights against minorities . Taking also into account the forensic doctor \u2019s findings , the court reached the following conclusion :","\u201c ... Admittedly , the second applicant had clashed with Mr Pavlakis . Further , given the applicants\u2019 light clothing , it was logical that they were injured during the fight that took place when they were arrested . Even if some of the applicants\u2019 injuries were inflicted by police officers during their detention , it has not been proved that the accused participated in this in CARDINAL way or the other , because he was absent when they arrived at the police station and did not have contact with them until TIME , on his arrival at the police station . In his sworn deposition dated DATE , the first applicant stated that in the process of his arrest he had been beaten with a truncheon by a tall , blond police officer ( a description that does not match the features of the accused ) and that the same police officer had also beaten him during his detention . However , the accused was not present when the applicants were arrested . If the applicants had indeed been beaten by police officers during their detention , they would have informed their relatives who arrived at the police station that same TIME . Thus , the accused must be found not guilty . \u201d","NORP Under NORP law , the applicants , who had joined the proceedings as civil parties , could not appeal against this decision .","In its country reports of DATE , ORG against Racism and Intolerance at ORG ) has expressed concern about racially motivated police violence , particularly against GPE , in a number of NORP countries including GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .","The Report on LAW in ORG and Its Member States in DATE , prepared by ORG ( ORG ) network of independent experts in fundamental rights at the request of ORG , stated , inter alia , that police abuse against GPE and similar groups , including physical abuse and excessive use of force , had been reported in a number of GPE member GPE , such as GPE , GPE , GPE , GPE , GPE and GPE .","In its second report on GPE , adopted on DATE and published on DATE , ORG stated , inter alia :","\u201c CARDINAL . There have been consistent reports that ORG , NORP and other immigrants are frequently victims of misbehaviour on the part of the police in GPE . In particular , Roma \/ Gypsies are often reported to be victims of excessive use of force -- in some cases resulting in death -- ill - treatment and verbal abuse on the part of the police . Discriminatory checks involving members of these groups are widespread . In most cases there is reported to be little investigation of these cases , and little transparency on the results of these investigations . Although most of these incidents do not generally result in a complaint being filed by the victim , when charges have been pressed the victims have reportedly in some cases been subjected to pressure to drop such charges . ECRI stresses the urgent need for the improvement of the response of the internal and external control mechanisms to the complaints of misbehaviour vis \u00e0 vis members of minority groups on the part of the police . In this respect , ORG notes with interest the recent establishment of a body to examine complaints of the most serious cases of misbehaviour on the part of the police and emphasises the importance of its independence and of its accessibility by members of minority groups .","ORG also encourages the NORP authorities to strengthen their efforts as concerns provision of initial and ongoing training of the police in human rights and anti - discrimination standards . Additional efforts should also be made to ensure recruitment of members of minority groups in the police and their permanence therein ...","...","As noted by ORG in its first report , the Roma \/ Gypsy population of GPE is particularly vulnerable to disadvantage , exclusion and discrimination in many fields ...","...","ORG are also reported to experience discrimination in various areas of public life ... They also frequently experience discriminatory treatment and sometimes violence and abuse on the part of the police ... \u201d","In its third report on GPE , adopted on DATE and published on DATE , ORG stated , inter alia :","\u201c CARDINAL . ORG notes with concern that since the adoption of its second report on GPE , the situation of the GPE in GPE has remained fundamentally unchanged and that overall they face the same difficulties \u2013 including discrimination - in respect of housing , employment , education and access to public services ...","...","ORG welcomes the fact that the government has taken significant steps to improve the living conditions of GPE in GPE . It has set up an inter - ministerial committee for improving the living conditions of GPE ...","... ECRI deplores the many cases of local authorities refusing to act in the interests of GPE when they are harassed by members of the local population . It is also common for the local authorities to refuse to grant them the rights that the law guarantees to members of the NORP community to the same extent as to any other NORP citizen ...","...","ORG expresses concern over serious allegations of ill - treatment of members of minority groups , such as GPE and both authorised and unauthorised immigrants . The ill - treatment in question ranges from racist insults to physical violence and is inflicted either at the time of arrest or during custody . ORG is particularly concerned over the existence of widespread allegations of improper use of firearms , sometimes resulting in death . It is equally concerned over reports of ill - treatment of minors and expulsion of non - citizens outside of legal procedures .","The NORP authorities have indicated that they are closely monitoring the situation and that mechanisms are in place to effectively sanction such abuses . For example , ORG of ORG was established in DATE and is responsible for conducting investigations , particularly into acts of torture and violation of human dignity . The police \u2013specifically police officers working in another sector than that of the person under suspicion - and the prosecution equally have competence over such matters and must inform the above - mentioned body when dealing with a case in which a police officer is implicated . ORG is also competent for investigating , either on request or ex officio , allegations of misbehaviour by a police officer , but he is only entitled to recommend that appropriate measures be taken . ORG welcomes the fact that the chief state prosecutor recently reminded his subordinates of the need for cases of police ill - treatment , particularly involving non - citizens , to be prevented and prosecuted with the appropriate degree of severity . The authorities have pointed out that instances of ill - treatment were primarily due to difficult conditions of detention . ORG notes with satisfaction cases of law enforcement officials having been prosecuted , and in some cases penalised , for acts of ill - treatment . However , human rights NGOs draw attention to other cases where impunity is allegedly enjoyed by officials responsible for acts of violence , whose prosecution has not lead to results or even been initiated . ECRI deplores such a situation and hopes that it will no longer be tolerated . \u201d","In their joint report published in DATE ( \u201c Cleaning Operations \u2013 Excluding GPE in GPE \u201d ) , ORG and ORG , which represent the applicants in the instant case , stated , inter alia :","\u201c ORG \/ GHM monitoring of policing in GPE over DATE suggests that ill - treatment , including physical and racist verbal abuse , of GPE in police custody is common . Although NORP authorities deny racial motivation behind the ill - treatment of GPE , NORP victims with whom PERSON \/ PERSON spoke testified that police officers verbally abused them using racist epithets .","Anti - Romani sentiment among police officers often leads to instances of harassment , inhuman and degrading treatment , verbal and physical abuse , and arbitrary arrest and detention of GPE at the hands of police . The ORG and ORG regularly document ill - treatment of GPE at the hands of the police , either at the moment of arrest or in police custody . Police ORG use of racial epithets in some cases of police abuse of GPE is indicative that racial prejudice plays a role in the hostile treatment to which officers subject GPE ... \u201d","According to LAW , the \u201c value of the human being \u201d is one of the fundamental principles and a \u201c primary obligation \u201d of ORG .","Article CARDINAL \u00a7 CARDINAL of the LAW reads as follows :","\u201c All persons living within the NORP territory shall enjoy full protection of their life , honour and liberty irrespective of nationality , race or language and of religious or political beliefs . Exceptions shall be permitted only in cases provided for by international law ... \u201d","Law no . CARDINAL\/CARDINAL ( as amended by PERSON no . CARDINAL\/CARDINAL and PERSON no . CARDINAL\/CARDINAL ) is the principal implementing legislation on the prevention of acts or activities related to racial or religious discrimination .","ORG Directive CARDINAL of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and ORG Directive CARDINAL\/CARDINAL\/CE of DATE establishing a general framework for equal treatment in employment and occupation , provide , in DATE respectively :","\u201c CARDINAL . Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment .","Paragraph CARDINAL shall not prevent Member GPE from introducing rules of evidence which are more favourable to plaintiffs .","Paragraph CARDINAL shall not apply to criminal procedures .","...","Member States need not apply paragraph CARDINAL to proceedings in which it is for the court or competent body to investigate the facts of the case . \u201d"],"violated_articles":["14","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-85833","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF WASSERMAN v. RUSSIA (No. 2)","importance":3,"conclusion":"Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Violation of Art. 13;Pecuniary and non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant arrived in GPE . On crossing the border , he omitted to report a certain sum of cash in his customs declaration and the customs office seized his money . The applicant appealed to a court .","On DATE the ORG of GPE set aside the seizure order and ordered the ORG to repay the applicant the equivalent in NORP roubles of the MONEY ( ORG ) seized . On DATE ORG upheld that judgment on appeal .","At the applicant 's request ORG amended the operative part of the judgment on DATE and ordered the ORG to pay CARDINAL into the applicant 's bank account in GPE .","On DATE ORG issued a writ of execution and sent it to the bailiffs ' service in GPE . On DATE the GPE bailiffs sent the writ back to GPE , for reasons which are unclear .","After the judgment in his favour had remained unenforced for DATE , the applicant complained to the ORG ( application no . CARDINAL\/CARDINAL ) .","On DATE the ORG delivered judgment in the above case . It noted the ORG 's acknowledgment that the writ of execution had been lost in the process of being transferred from the GPE bailiffs to the GPE office . However , in the ORG 's view , the logistical difficulties experienced by the ORG enforcement services could not serve as an excuse for not honouring a judgment debt ; the applicant 's complaints concerning the non - enforcement of the judgment should have prompted the competent authorities to investigate the matter and to ensure that the enforcement proceedings were brought to a successful conclusion . The ORG found a violation of the applicant 's \u201c right to a court \u201d under LAW and of his right to peaceful enjoyment of his possessions LAW CARDINAL ( see PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL and DATE , DATE ) .","The ORG granted the applicant 's claim for the interest on the judgment debt . It rejected , however , the claim for the outstanding amount on the ground that \u201c the ORG 's obligation to enforce the judgment at issue ha[d ] not been yet extinguished and the applicant [ was ] still entitled to recover this amount in the domestic enforcement proceedings \u201d ( see PERSON , cited above , \u00a7 DATE ) . It also made awards in respect of nonpecuniary damage and costs and expenses ( \u00a7 \u00a7 DATE ) .","In the meantime , on DATE , a duplicate of the writ was issued and presented to ORG for enforcement .","In its observations on the applicant 's claim ( see below ) , ORG mentioned that on DATE payment of the outstanding amount into the applicant 's account in GPE had been authorised .","NORP By letter of CARDINAL DATE ORG informed the applicant that it would not enforce the judgment because ORG decision of DATE had misspelled CARDINAL letter in his patronymic name and because the writ of execution had incorrectly designated the debtor as the \u201c Chief ORG of the ORG \u201d ( the correct name of the entity does not contain the word \u201c ORG \u201d ) .","By decision of CARDINAL DATE ORG corrected the spelling mistake in the decision of DATE .","On DATE the sum of USD CARDINAL,CARDINAL was credited to the applicant 's bank account in GPE . An amount of DATE was withheld by the ORG - owned bank ORG as commission for the wire transfer .","On DATE the applicant brought a civil claim against the GPE bailiffs , ORG and ORG . He sought compensation for pecuniary and non - pecuniary damage allegedly incurred as a result of the unlawful actions of the bailiffs and the continued failure to enforce the judgment .","On DATE the ORG of GPE found that the GPE bailiffs had acted unlawfully in that they had never instituted enforcement proceedings and had had no legal grounds for sending the writ back to GPE . However , it refused the claim for damages , finding that the applicant had not incurred any pecuniary damage as a result of the non - enforcement of the judgment of DATE . As to nonpecuniary damage , NORP law did not provide for compensation in situations such as the applicant 's .","On DATE ORG dismissed an appeal by the applicant , reproducing verbatim the text of ORG judgment .","NORP The applicant lodged an application for supervisory review . On DATE the Presidium of ORG granted his application , quashed the judgments of DATE and DATE in part and remitted the claim for damages for fresh examination by ORG .","DATE and CARDINAL DATE ORG listed CARDINAL hearings which were subsequently adjourned for various reasons .","On DATE ORG issued a new judgment . It rejected the applicant 's claim in respect of pecuniary damage on the ground that no admissible evidence had been produced in support of it . It accepted the claim for non - pecuniary damage in part , finding as follows :","\u201c ... the court takes into account the fact that the ORG judgment of DATE found the [ GPE ] bailiffs ' actions to have been unlawful , and the fact that enforcement of the judgment was protracted and did not actually occur until DATE . This was not disputed by the parties .","The court therefore finds that there has been a violation of the claimant 's right to a fair hearing within a reasonable time on account of an unlawful delay in the enforcement of a judicial decision , which implies that just compensation must be paid to the individual who sustained damage as a result .","and the physical and mental suffering caused to the claimant on account of the belated enforcement of the judgment , and also the fact that the claimant is a pensioner and [ has the title ] ' Honoured Coach of GPE ' , the court considers it necessary to award him MONEY as compensation for non - pecuniary damage , to be paid by ORG .","The court finds no grounds to award a larger amount of compensation as the claimant did not produce evidence showing that the defendants had caused him physical or mental suffering of an irreversible nature ... \u201d","ORG further rejected the applicant 's claim for legal costs and expenses .","On DATE ORG upheld that judgment on appeal , reproducing verbatim ORG reasoning .","A court may hold the tortfeasor liable for non - pecuniary damage caused to an individual by actions impairing his or her personal nonproperty rights or affecting other intangible assets belonging to him or her ( ORG CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ) .","Compensation for non - pecuniary damage sustained as a result of the infringement of an individual 's property rights is recoverable only in the cases provided for by law ( LAW ) .","Compensation for non - pecuniary damage is payable irrespective of the tortfeasor 's fault if damage was caused to an individual 's life or health as a result of unlawful criminal prosecution or dissemination of untrue information , and in the other cases provided for by law ( LAW ) .","NORP In ruling no . CARDINAL of DATE , ORG found that Article CARDINAL \u00a7 CARDINAL of LAW was compatible with LAW in so far as it made ORG liability for damage caused by the administration of justice subject to special conditions . Nevertheless , it stated explicitly that the term \u201c administration of justice \u201d did not cover the judicial proceedings in their entirety but extended only to judicial acts touching upon the merits of a case . Other judicial acts \u2013 mainly of a procedural nature DATE fell outside the scope of the notion of \u201c administration of justice \u201d . State liability for the damage caused by such procedural acts or failures to act , such as a breach of the reasonable - time requirement in relation to court proceedings , could arise even in the absence of a final criminal conviction against a judge , if the fault of the judge had been established in civil proceedings . ORG emphasised , however , that the constitutional right to compensation from the ORG for the damage caused should not be bound up with the individual fault of the judge concerned . An individual should be able to obtain compensation for any damage incurred as a result of the violation by a court of his or her right to a fair trial within the meaning of LAW . ORG held that ORG should legislate on the grounds for and procedure governing ORG compensation for damage caused by unlawful acts or failures to act of a court or a judge , and should determine territorial and subject - matter jurisdiction in respect of such claims ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77551","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"DIREKCI v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr L. GPE , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) did not designate an Agent for the purpose of the proceedings before the ORG .","On DATE the applicant \u2019s son , PERSON , participated in a demonstration organised by a trade union in GPE . On DATE he was taken into custody .","On DATE he was brought before ORG which ordered his detention on remand .","On an unspecified date ORG at ORG filed a bill of indictment , charging PERSON under LAW \u00a7 CARDINAL of the Criminal Code with membership of an illegal organisation , namely the ORG ( ORG ) .","On DATE PERSON lawyer submitted a petition to ORG for the establishment by ORG of a medical report on his client \u2019s state of health .","CARDINAL and DATE CARDINAL PERSON was examined at ORG and diagnosed with liver cancer . The medical reports submitted by the applicant confirm the diagnosis . The applicant also submitted CARDINAL medical reports recommending CARDINAL or CARDINAL months\u2019 rest for his son .","On DATE PERSON lawyer requested ORG to release his client on account of his serious illness .","On DATE ORG ordered PERSON release pending trial .","On DATE ORG convicted PERSON Direk\u00e7i of membership of the ORG under LAW of LAW and sentenced him to DATE and CARDINAL months\u2019 imprisonment . ORG also ordered his detention in his absence .","On DATE PERSON lawyer lodged an appeal against the decision regarding his client \u2019s detention .","On DATE ORG dismissed the appeal , taking into account the serious nature of the offence .","In DATE PERSON left for GPE in order to obtain medical treatment .","On DATE his lawyer requested ORG to quash the judgment and the detention order of ORG .","On DATE ORG upheld the judgment of ORG .","PERSON died in GPE on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22321","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2002,"docname":"WINGERTER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Ireneu Cabral Barreto","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government were represented by Mr PERSON , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG ) issued a reprimand ( PERSON ) against the applicant for having violated professional rules ( anwaltliche GPE ) .","In its reasoning , ORG noted that in DATE the applicant had assisted PERSON , a foreigner , who had been accused in criminal proceedings in GPE , of having acted as an accessory to forgery , and that this trial had resulted in an acquittal for lack of jurisdiction of the NORP courts . In DATE the applicant had appealed against the bill of costs ( ORG ) as far as the fixing of his fees , to be borne by the ORG , was concerned . In his appeal , the applicant , objecting to a refusal to reimburse his travelling expenses from GPE to GPE , had argued that the intervention of a lawyer outside of GPE had been necessary . According to him ,","\u201c the GPE judiciary had not been able to cope with the difficulty of the case . From the very beginning , it had been obvious that the accused had to be acquitted . Nevertheless , the public prosecutor had applied for a penal order and the court had issued CARDINAL . The quality of the GPE lawyers is not superior to the quality of the judges and public prosecutors . ... It had been necessary to appoint a non - GPE lawyer to have justice done . Had the accused been assisted by a GPE lawyer , the penal order would have been undoubtedly been confirmed at the trial . \u201d","In DATE , in the course of investigations brought against him , the applicant had submitted that this reasoning had been necessary to argue his appeal . He had added that his opinion on the quality of GPE judges , public prosecutors and lawyers was correct , as any DATE law student would have known that the charge against his client was unfounded . Moreover , he had evoked DATE GPE judge and CARDINAL GPE lawyers under the NORP regime . In particular , regarding judge PERSON , he had referred to judgments rendered in DATE , convicting persons for having criticised the treatment of NORP or for failure to differentiate , in their charitable work , between their own people and NORP . Regarding lawyer PERSON , he had mentioned a statement , to be found in Mr. PERSON \u2019s doctoral thesis , according to which a medical practitioner keeping friendship with a NORP violated the honour of the profession . According to him , their merits under the NORP regime had contributed to their professional success after DATE .","ORG considered that the applicant had thereby violated his professional duties within the meaning of CARDINAL a ( CARDINAL ) of ORG ) .","ORG examined the applicant \u2019s above - mentioned statements in the light of these principles and found that the course of the criminal proceedings against Mr. PERSON had not been correct and could have justified even harsh criticism of the officials concerned . However , the applicant \u2019s general attack charging the GPE judiciary of complete incompetence was unjustified and amounted to a deliberate disparagement of all members of the GPE judiciary on criminal matters . These considerations applied even more to his subsequent statements that in GPE anti - NORP and NORP judges had made a career because of their work or their attitude under the NORP regime . Such statements had been all the more disproportionate as the claim for reimbursement had amounted to a mere MONEY ( DEM ) .","On DATE the Baden - W\u00fcrttemberg Disciplinary Court of Appeal ( Anwaltsgerichtshof ) , following a hearing , dismissed the applicant \u2019s appeal and the ORG ordered that the case should not be subject to an appeal on points of law .","In its decision , ORG considered that the applicant had been entitled to argue that his assistance in the criminal proceedings at issue had been necessary and that his qualifications were superior to those of GPE lawyers .","Moreover , the allegation that \u2018 the quality of GPE lawyers was not superior to the quality of GPE judges and public ORG could have been read as applying only to those judges and prosecutors specifically involved in the procedure against Mr. PERSON The context in which the applicant made his statements shows , however , that that allegation was intended to characterise all GPE judges , public prosecutors and lawyers as incapable of recognising or remedying obvious legal errors . This assessment was confirmed in the applicant \u2019s further submissions of DATE .","According to ORG , the wholesale allegation that the GPE judges , public prosecutor \u2019s and lawyers were incompetent in legal matters was disparaging and made without good cause . The applicant had no reason or justification to disparage the legal skills of all GPE judges , public prosecutors and lawyers . Even the obvious legal errors committed in the criminal proceedings against PERSON could not justify disparaging whole groups of professionals . The insulting remarks made by the applicant had not been necessary to justify the need for having recourse to a non - local lawyer .","The applicant \u2019s submissions of DATE did not , in ORG view , constitute a further breach of professional duties . Rather , the applicant had acted for the protection of his interests in the disciplinary proceedings against him . Moreover , to the extent that he had referred to the NORP past of certain GPE lawyers and of a judge , he had not , in ORG view , made a general statement .","On DATE the Lawyers\u2019 ORG ( ORG f\u00fcr PERSON ) at ORG dismissed the applicant \u2019s request for leave to appeal on points of law .","On DATE ORG refused to entertain the applicant \u2019s constitutional complaint .","According to section CARDINAL of ORG , a lawyer has to practise his profession conscientiously , and , whether in pursuit of his profession or otherwise , has to prove himself worthy of the respect and trust which his position requires .","As CARDINAL of the basic duties , section GPE ) provides that in his professional conduct , a lawyer has to respect the duty of objectivity ( PERSON ) . Such conduct lacks objectivity if it involves a deliberate dissemination of untrue or otherwise disparaging statements which find no ground in the behaviour of other persons involved in the proceedings or in the course of the proceedings .","Section CARDINAL(CARDINAL ) of ORG provides that disciplinary measures shall be taken against a lawyer who is liable of a breach of duties as defined by the ORG or the rules on professional conduct ( PERSON ) .","According to section CARDINAL(CARDINAL ) , the possible disciplinary measures are : ( CARDINAL ) a warning ; ( CARDINAL ) a reprimand ; ( CARDINAL ) a fine not exceeding DEM CARDINAL ; ( CARDINAL ) a temporary prohibition on practising as counsel in certain legal fields ; or ( CARDINAL ) a permanent exclusion from the Bar . The disciplinary measures of reprimand and fine may be imposed simultaneously ( section CARDINAL(CARDINAL ) ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77805","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF KOMAROVA v. RUSSIA","importance":4,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","DATE the applicant worked as a senior accountant in the private company Gatchina .","On DATE a local police investigator ( ORG \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u043e\u0442\u0434\u0435\u043b \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b \u0433. PERSON ) initiated criminal proceedings on suspicion of misappropriation of the company 's assets by some of its employees .","On DATE an initial interview was held with the applicant in the presence of her counsel .","The applicant was formally charged on DATE .","On DATE the applicant was remanded in custody pending the investigation .","On DATE and DATE an investigator again questioned the applicant .","The applicant 's repeated complaints concerning her detention were rejected by decision of LOC of the city of ORG \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u0441\u0443\u0434 \u0433. PERSON ) on DATE and DATE . The decision of DATE was upheld on appeal by ORG ( \u201c the Regional Court \u201d \u2013 PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0439 \u0441\u0443\u0434 ) on DATE .","On DATE the applicant was released on the ground that all the investigative measures had been concluded and on health grounds . The investigator imposed a measure of restraint on her in the form of an undertaking not to leave her place of residence .","It appears that while in detention the applicant also repeatedly complained that she was unfit for custody on medical grounds . By decisions dated DATE and DATE the investigator twice ordered a medical examination of the applicant .","The examinations took place DATE and DATE and from DATE to DATE respectively , and found the applicant to be in good health .","On DATE the investigator opened a new criminal case against the applicant , this time for alleged fraud . The CARDINAL cases against the applicant were joined .","According to the ORG , DATE and DATE the applicant had access to the case file and availed herself of that opportunity on CARDINAL occasions .","By decision of CARDINAL DATE the proceedings were suspended owing to the applicant 's state of health . She underwent in - patient treatment in a hospital .","On DATE the proceedings resumed . Over DATE the investigator brought similar charges against CARDINAL other people and ordered a further medical examination of the applicant .","From DATE the applicant and the other defendants in the case had access to the case file again . It appears that the other defendants and the applicant 's counsel completed their study of the case by DATE respectively .","As regards the applicant , she again underwent inpatient treatment DATE and DATE and only started to familiarise herself with the case file on DATE .","On DATE the investigator , fearing that the applicant might cause delays in the proceedings , set a deadline of DATE for the applicant to familiarise herself with the case file .","In DATE the deadline was extended until DATE .","On DATE the preliminary investigation of the applicant 's case was concluded and the bill of indictment was prepared and signed by a local prosecutor . The applicant and CARDINAL co - defendants were charged with fraud .","On DATE the case was transferred to the NORP ORG of Yaroslavl ( \u201c the ORG \u201d \u2013 \u0417\u0430\u0432\u043e\u043b\u0436\u0441\u043a\u0438\u0439 \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u0441\u0443\u0434 \u0433. PERSON ) for trial .","On DATE the applicant submitted to the court a number of documents allegedly confirming her innocence . In response and at the prosecutor 's initiative , the court ordered ORG to examine the documents with a view to verifying their authenticity . The court also stayed the proceedings in the case pending the outcome of the expert examinations .","On DATE the ORG responded that it was impossible to carry out the expert examinations requested by the court .","On DATE the court decided to examine the documents with the assistance of a different expert body , the North - Western Regional Centre for Forensic Examinations ( \u201c the Centre \u201d ) . However , on DATE the ORG informed the court that , owing to malfunctioning of technical equipment , no examination could take place .","Having consulted counsel for the defence , the court fixed CARDINAL DATE as DATE hearing . It appears that the hearing of DATE did not take place and that the proceedings were adjourned until DATE and then until DATE .","On DATE the proceedings resumed .","By decision of DATE , taken at the prosecutor 's initiative , the court decided again to order an expert examination . However , on DATE the ORG again refused and informed the court that no such examination was possible . According to the applicant , the ORG could not carry out that examination because the court had failed to furnish it with the necessary documents in time .","On DATE the court for the third time requested the ORG to carry out the examination . By letter of CARDINAL DATE the ORG acceded to the request but asked for further information . It appears that the necessary information was furnished .","The court received a completed expert report on DATE and scheduled the next hearing for DATE . On that date the proceedings did not take place because of the judge 's involvement in a different set of proceedings . The case was adjourned until DATE . The hearings of CARDINAL , DATE and DATE did not take place owing to the failure of counsel for CARDINAL of the defendants to attend .","The proceedings resumed on DATE and lasted until DATE , when they were interrupted by the illness of a lay assessor .","The proceedings continued on DATE and lasted , with interruptions , until DATE . On the latter date the court adjourned the hearing first until DATE owing to the illness of counsel for CARDINAL of the defendants and then until DATE , citing the involvement of counsel for the same defendant in different sets of proceedings .","The hearing of DATE was adjourned with reference to the need to secure the attendance of some of the witnesses by force .","On DATE the hearings did not take place as the applicant requested that an additional witness be summoned ; on CARDINAL , DATE and DATE the applicant 's counsel and CARDINAL of the defendants failed to appear .","On DATE and CARDINAL DATE the prosecutor requested that the proceedings be adjourned , referring to a lack of time to prepare for the judicial pleadings stage . The requests were granted .","On CARDINAL DATE the proceedings were adjourned at the applicant 's request , as apparently her counsel was ill .","It appears that by judgment of DATE ORG convicted the applicant as charged .","NORP The judgment was quashed on appeal by ORG on DATE . The case was remitted for a fresh examination at first instance .","It appears that the case is currently pending before the trial court ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5026","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2000,"docname":"YAVUZ v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","A.","In DATE the applicant arrived in GPE . On DATE he married an NORP citizen . Subsequently he requested a work permit and a residence permit . In DATE he was given a work permit . The residence permit , however , was refused .","On DATE ORG Bezirkshauptmannschaft ) issued a deportation order ( Ausweisungsbescheid ) against the applicant . It found that the applicant had no residence permit and that his stay in GPE was therefore unlawful . Thus , his removal from GPE was necessary in the public interest . The applicant , assisted by counsel , instituted appeal proceedings , which were terminated in DATE by the decision of ORG ( Verwaltungsgerichtshof ) which found that the deportation order was lawful . These proceedings were the issue of ORG . GPE which was declared inadmissible by ORG on DATE .","On DATE ORG ordered the applicant to leave GPE .","On the basis of the deportation order , the applicant was arrested in DATE . On DATE the applicant , assisted by lawyer , appealed to ORG ( Unabh\u00e4ngiger Verwaltungssenat ) against his detention with a view to expulsion . He argued that his detention was not necessary because DATE had already elapsed since the ORG \u2019s order to leave GPE in DATE . Besides , ORG decision of DATE was no longer enforceable for lapse of time . Furthermore , he requested the resumption of the expulsion proceedings and a hearing before ORG .","On DATE , having taken into account the case - file and ORG comments on the applicant \u2019s appeal ( PERSON ) , ORG dismissed the appeal and upheld the applicant \u2019s detention . It found that it was not competent to review the lawfulness of the underlying deportation order . It noted that ORG had found that the measure was lawful and that the applicant had been ordered to leave GPE on several occasions , but had not complied . He had been lawfully detained with a view to enforcing the expulsion , in accordance with LAW of LAW ( PERSON ) . It noted further that the applicant was mistaken when arguing that the deportation order was no longer enforceable . Finally , it found that no hearing was necessary because the factual basis was clear from the file .","On DATE the applicant filed a complaint with ORG ) . He argued that his detention was not necessary and that ORG had violated LAW as it had not held a hearing and had not communicated ORG comments on his appeal .","On DATE ORG refused to deal with the case and transferred it to ORG . It found that LAW did not guarantee a public hearing , and that access to the file as well as the submission of any further observations had been possible for the applicant throughout the proceedings .","On DATE ORG dismissed the complaint . It found that the detention with a view to expulsion had been necessary . As to a hearing , access to the file and the possibility to submit further information , it agreed with ORG . ORG decision was served upon the applicant on DATE .","B. Relevant domestic law","Section CARDINAL of LAW DATE ( PERSON ) , applicable at the material time , allows the arrest and detention of an alien if these measures are necessary to ensure , inter alia , expulsion . The detainee must be released as soon as the grounds for detention cease to exist . The maximum period of detention is limited to DATE ( Section CARDINAL ) .","Everyone arrested and detained under LAW has the right to apply to the competent ORG and to challenge the lawfulness of the arrest and the detention order ( LAW ) . An appeal may be filed either directly with ORG or with the authority of first instance . In the latter case this authority has to present the appeal to ORG within a maximum delay of DATE ( Section CARDINAL \u00a7 CARDINAL ) . Besides , the detaining authority has to inform the Panel immediately in case of the applicant \u2019s release ( Section QUANTITY ) . If the detainee , however , is not released before , ORG has to decide on the continuation of the detention within DATE ( Section CARDINAL \u00a7 CARDINAL ) .","Section CARDINAL of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ) provides for the right to inspect the case - files . This section is applicable to proceedings concerning the review of an arrest or a detention with a view to expulsion ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83619","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF SARACOGLU AND OTHERS v. TURKEY","importance":4,"conclusion":"Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5","judges":"","text":["The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE .","On DATE the applicants were taken into custody by police officers from the Anti - Terrorism Branch of ORG . According to the arrest and search protocols , the applicants were arrested in the course of a police operation carried out against an illegal organisation , namely the DHKPC ( ORG ) as they were considered to be involved in the activities of this organisation at the university .","On DATE the deputy director of the Anti - Terrorism Branch of ORG requested the public prosecutor at ORG to extend the applicants ' custody period for DATE . The public prosecutor at ORG granted the requested extension .","On DATE ORG requested ORG to extend the custody period for DATE . The single judge of ORG duly extended the custody period for DATE starting from DATE .","On DATE the applicants made statements before the police .","On DATE the applicants were brought before a doctor , who noted that there were no signs of ill - treatment on their bodies .","On DATE , the applicants made statements before the public prosecutor at ORG and subsequently , a single judge of the state security court , who ordered that PERSON , PERSON , and ORG be detained on remand and the other applicants be released . Before the judge , CARDINAL of the applicants , PERSON alleged that he had been subjected to ill - treatment while in custody .","On DATE the applicants ' representative filed an objection with the court requesting that PERSON , PERSON and ORG be released . In his petition , the representative maintained , inter alia , that the applicants had been subjected to different types of ill - treatment while in custody . He alleged that the applicants had been beaten , deprived of food and water , that their testicles had been squeezed and electric shocks had been administered .","On CARDINAL DATE the public prosecutor at ORG filed a bill of indictment charging the applicants with membership of the DHKP - C under LAW and LAW no . ORG .","On DATE ORG ordered the applicants ' release pending trial , holding that the relevant evidence had been collected and that the applicants were students and had to take their exams at the university .","The applicants maintained before the trial court that they had signed their statements under duress while in police custody . PERSON reiterated his allegation of ill - treatment .","On DATE ORG acquitted the applicants of the charges against them .","On DATE the judgment of the first - instance court became final as neither the public prosecutor nor the applicants filed an appeal against it .","On DATE CARDINAL of the applicants , namely ORG , ORG and PERSON , together with another person PERSON , who had also been in police custody with the applicants DATE , initiated proceedings before ORG and requested compensation for the time they had spent in police custody . On DATE the court awarded MONEY ( TRL ) \u2013approximately CARDINAL euros- each to ORG , ORG , PERSON and FAC to GPE in respect of non - pecuniary compensation .","The fourth paragraph of LAW ( as amended by PERSON no . CARDINAL\/CARDINAL of DATE ) provides that any person who has been arrested and\/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and , if successful , be released .","Section CARDINAL of Law no . CARDINAL on ORG or ORG provides :","\u201c Compensation shall be paid by the ORG in respect of all damage sustained by persons :","( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute ;","( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;","( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose ;","( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired ;","( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;","( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or","( CARDINAL ) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-3","5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76092","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF VOLOSYUK v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed","judges":"Peer Lorenzen","text":["The applicant was born in DATE and resides in the city of GPE , GPE .","At the material time the applicant worked as a lawyer in a private company \u201c Naddnistryanka \u201d .","On DATE ORG ( hereinafter DATE the ORG ) instituted criminal proceedings against the applicant for bribing . On DATE the Deputy Prosecutor General sanctioned the applicant \u2019s arrest and detention . On DATE the applicant was arrested and detained until DATE .","While in detention , the applicant was allegedly subjected to psychological pressure by the investigation officers . Prior to interrogation the applicant allegedly was placed in a tiny ( CARDINAL ) cold room without windows , where he had to stay for TIME . The applicant states that he lost consciousness during interrogations and was interrogated while being seriously ill . In detention and afterwards the applicant suffered from chronic bronchitis and chronic neuritis . The applicant was beaten by CARDINAL of the cellmates . The applicant maintained that the offender was a former ORG officer . The applicant further alleges that drugs were added to his meals . According to the applicant , his family members were not allowed to see him in detention . On his numerous complaints about such treatment the applicant received answers that no violations had been revealed during pre - trial investigation in his case .","After his release the applicant was on a written undertaking not to abscond until DATE . In DATE criminal charges in the applicant \u2019s case were several times changed . By DATE the criminal case against the applicant was closed . By a prosecutor \u2019s decision of CARDINAL DATE the applicant was awarded UAH CARDINAL,CARDINAL.CARDINAL ( at the material time \u2013 EUR DATE ) in compensation for material damage .","In DATE the applicant instituted proceedings in ORG against ORG of GPE claiming ORG CARDINAL,CARDINAL in compensation for moral damage . The applicant later raised his claims to UAH CARDINAL,CARDINAL,CARDINAL . In DATE he claimed UAH CARDINAL in compensation for moral damage from the ORG . These claims were joined and examined together . On DATE ORG found in part for the applicant and ordered the ORG to pay him ORG CARDINAL in compensation for material and moral damage caused by the unlawful criminal action against the applicant and his unlawful detention . On DATE ORG upheld this decision and it became final . On an unidentified date the applicant requested the Deputy Chairman of ORG to lodge a supervisory review request ( protest ) against these decisions . His request was satisfied , the judgment of DATE was quashed and the case was remitted for a fresh consideration . On DATE ORG found in part for the applicant and ordered the State to pay him UAH CARDINAL ( approximately EUR CARDINAL ) in compensation for moral damage for the unlawful criminal action against the applicant , for his unlawful detention and for being on a written undertaking not to abscond . This compensation had to be paid from the funds allocated for maintenance of the ORG . On DATE ORG upheld this decision and it became final .","On DATE the ORG suspended the enforcement of the judgment of DATE . On DATE the Deputy Prosecutor General lodged a protest with ORG of GPE asking to quash the decision of DATE in the part concerning the source of the payment on the ground that the awarded amount should not be paid from the funds allocated for the maintenance of the ORG .","On DATE ORG found unconstitutional the provisions of LAW according to which the compensation for damage inflicted by unlawful actions of the prosecutors had to be paid from the funds allocated for the maintenance of the ORG .","On DATE the Pecherskiy ORG opened the enforcement proceedings in the applicant \u2019s case . On DATE ORG requested ORG to transfer the amount awarded to the applicant to the deposit account of ORG . On DATE the applicant received the amount awarded and the enforcement proceedings were closed .","On DATE ORG of GPE satisfied the protest and decided that the compensation in the applicant \u2019s case had to be paid directly from ORG .","NORP In DATE the applicant instituted proceedings in the NORP ORG against ORG , which had been his employer at that time , for his allegedly unlawful dismissal . On DATE the court found against the applicant . On DATE ORG upheld this decision .","The applicant instituted CARDINAL sets of proceedings in ORG against the ORG claiming ORG CARDINAL,CARDINAL.CARDINAL and CARDINAL,CARDINAL,CARDINAL.CARDINAL in compensation for material damage . The applicant stated that according to the labour contracts of CARDINAL DATE and DATE his employer , the private company \u201c GPE \u201d , had to pay him the above mentioned amounts of remuneration for the work performed . The applicant alleged that because of his detention and the investigation in the criminal case against him he had not been able to receive this money as the company went bankrupt in DATE . On DATE and DATE the court found against the applicant on the ground that the ORG was not an appropriate defendant to this claim and that the applicant should institute proceedings against his ex - employer . On DATE and DATE ORG upheld these decisions . On DATE and CARDINAL DATE ORG rejected the applicant \u2019s appeals in cassation .","In DATE a number of articles about the applicant were published in different newspapers .","In DATE the applicant complained to police and to other bodies that unknown people , who were allegedly policemen and the ORG agents , threatened to destroy him in particular because he had raised complaints about ORG and the ORG before ORG . By letter of DATE the police informed the applicant that checks were carried out following his complaints . It was revealed that in DATE the former investigation officer , Mr PERSON , who had investigated the applicant \u2019s case , threatened the applicant . Mr PERSON was wanted for committing several crimes . By another letter of CARDINAL DATE the police informed the applicant that an unknown person , who called him and threatened to eliminate him , was identified and warned about possible responsibility for such actions . By letters of DATE and DATE the police informed the applicant about the refusal to institute criminal proceedings following his complaints for the absence of the corpus delicti .","The applicant requested the investigation officer to allow him to represent PERSON in a criminal case against the latter . By a decision of DATE the investigation officer rejected the applicant \u2019s request on the ground that in spite of having a law degree the applicant did not possess an advocate \u2019s certificate . On DATE ORG upheld this decision .","The relevant provisions read as follows :","\u201c Everyone has the right to compensation , at the expense of the ORG or bodies of local self - government , for material and moral damages inflicted by unlawful decisions , actions or omission of bodies of state power , bodies of local self - government , their officials and officers during the exercise of their authority . \u201d","...","\u201c ... In the event that a court verdict is revoked as unjust , the ORG compensates the material and moral damages inflicted by the groundless conviction . \u201d","\u201c ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . \u201d","At the material time , LAW of LAW allowed a final and binding judgment to be reviewed under the supervisory review procedure . The supervisory review procedure was repealed in DATE .","Paragraph CARDINAL of Article CARDINAL provides that the enforcement proceedings may be suspended upon decision of the ORG official entitled to such actions by law .","At the material time , part CARDINAL of Article CARDINAL provided that the prosecutors who brought an appeal for supervisory review in the civil cases were entitled also to suspend the enforcement proceedings in such cases .","In DATE this Article was repealed .","NORP The relevant parts of the decision of DATE read as follows :","\u201c CARDINAL ... Therefore , LAW On FAC for the Year CARDINAL \u201d ... de facto introduces civil and not public responsibility of ... , the prosecutor \u2019s offices , ... for the material and moral damage caused to the citizens by unlawful actions of these bodies . Concurrently , LAW guaranties the right of the citizens for the compensation by the ORG and not from the funds allocated for the maintenance of these bodies ( LAW ) .","...","ORG has decided :","To consider as contrary to LAW ( unconstitutional ) provisions of LAW On FAC for the Year CARDINAL \u201d ... according to which the compensation for damage inflicted to the citizens by unlawful actions of ... , the prosecutor \u2019s offices , ... is to be provided from the funds allocated for the maintenance of the courts , ORG , ORG of GPE , and ORG .","Provisions of LAW On FAC for the Year CARDINAL \u201d ... are considered unconstitutional , and void from DATE this decision is made by ORG . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23097","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2003,"docname":"DENTON v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and is curently detained in FAC Full Sutton . He is represented before the ORG by Mr NORP O\u2019Connell , a lawyer practising in GPE , GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant is a NORP national , who came to GPE in DATE using his brother \u2019s passport and was granted permission to remain for DATE . On CARDINAL DATE , the applicant was arrested in a public house in GPE , on suspicion of drug dealing and possession of an offensive weapon . Upon arrest he gave the name PERSON . After being interviewed by the police , he was arrested and interviewed again by an Immigration Officer called GPE as a suspected \u2018 ORG . PERSON knew the applicant \u2019s true identity and in a report dated CARDINAL DATE , described the applicant as \u2018 extremely violent\u2019 and indicated that he should be detained . However , over DATE , GPE , together with PC PERSON from \u201c NORP \u201d , ( a special operations unit of the LOC police ) , recruited the applicant as a police informer . With the assistance of GPE the applicant completed an application for political asylum and was released on temporary admission to GPE on DATE .","The applicant was not charged with any drugs offences despite the fact that a substance later proved to be cocaine had been found on him when he was arrested in DATE . In DATE he appeared before ORG in respect of the offence of possession of an offensive weapon and was fined , having pleaded guilty in the name of PERSON . Immigration Officer PERSON was at court . DATE , the applicant had his first official meeting with his handlers and began to supply information about the activities of NORP \u2018 Yardie\u2019 gangs operating in GPE .","In DATE the applicant was arrested for an offence of rape and was detained in custody . Whilst detained he was visited by GPE and another officer and on DATE PC PERSON and a ORG attended ORG in an attempt to persuade the prosecutor not to object to bail . On DATE the rape proceedings were discontinued and , although they would later deny it , the applicant believed this was as a result of intervention by his \u2018 CARDINAL .","DATE and DATE the applicant gave information to police about the alleged criminal activities of PERSON , known as \u2018 Miss V\u2019 , involving drug dealing and false passports . On DATE , the applicant gave information to PC PERSON about Miss V \u2019s son , PERSON . PERSON was arrested DATE in possession of a handgun and ammunition and was subsequently sentenced to CARDINAL years\u2019 imprisonment .","On or about DATE , a DATE , PERSON ( known as \u2018 Zena\u2019 ) was murdered . She had been stabbed some CARDINAL times and the prosecution case was that she had been raped before being killed . Her body was not found until TIME of Friday , DATE . The door to her flat was unlocked and the telephone had been left off the hook . On CARDINAL DATE the applicant was interviewed as a potential witness . His former girlfriend , PERSON , with whom he was still living , was a friend of PERSON and his fingerprint had been found on a glass in the deceased \u2019s flat . The applicant said he knew of her , but had not actually met her before the afternoon of DATE , when he went to her house with a mutual friend , PERSON , to buy cannabis . He did not disclose that he had had a sexual relationship with the deceased .","In DATE the applicant \u2019s DNA profile was matched with semen samples taken from the deceased \u2019s vagina and he was arrested for her murder . When interviewed in DATE he said that he had been having a sexual relationship with the deceased for some time and had returned to her house on DATE , DATE to have sex with her , but she had been alive when he left and she must have been murdered some time after he last saw her .","The fact that the applicant was an informant became known to the officer in charge of the murder investigation , PERSON , who informed ORG ( ORG ) in DATE . PERSON was told by a colleague about a telephone call the applicant made from prison to PC PERSON , in which he had asked if something could be \u2018 sorted out\u2019 . ( He later confronted PC PERSON about the call , who denied any knowledge of it ) . PERSON visited SOCARDINAL and looked at the applicant \u2019s Informant file but did not see anything of relevance to the murder investigation and took no further action . Senior officers at SOCARDINAL gave instructions that there was to be no further contact with the applicant . In DATE the murder proceedings against the applicant were discontinued , counsel having advised that there was insufficient evidence to proceed , and he was released from custody .","As far back as DATE the decision had been taken to refuse the applicant \u2019s application for asylum , but the letter of refusal was not served on him and no steps were taken to deport him . At some point after the DATE decision to discontinue the murder proceedings , contact was resumed between the applicant and PC PERSON .","ORG PERSON obtained authority to resume the murder investigation and on DATE PERSON made a witness statement in which she said that she had been with the applicant on an occasion in DATE when he appeared worried about police questions and asked her what \u2018 forensic\u2019 meant . He had a bag in which she saw a pair of bloodstained trousers , which he then took to be dry cleaned . PERSON was the niece of PERSON and the granddaughter of Miss PERSON She had not made a statement to the police during the initial investigation . The police also then obtained further evidence from a mobile telephone company tending to show that the applicant was near or at ORG flat on TIME , when the prosecution believed her to have been murdered and when the applicant claimed to have been at home . The applicant was re - arrested on DATE .","At the start of the trial , on DATE , the prosecution made an application for public interest immunity ( ORG ) in respect of the fact that the applicant was an informant . The applicant had not told his own legal representatives and the defence team were not aware of his status as an informant . Prosecuting counsel told the trial judge that the applicant was an informant and that he had had involvement with the police and with GPE . Counsel had not been told that the applicant had informed on the relatives of the prosecution witness PERSON and both prosecuting counsel and the judge were unaware of any possible relevance to the trial of the fact that the applicant was an informant . Prosecuting counsel made it clear to the judge that he did not know whether the applicant had told his own solicitors or counsel that he was an informant . The judge ruled that there should be no order for disclosure .","After the ORG hearing , PERSON was approached by a journalist who said that he knew the applicant was an informant and asked if the officer knew anything about the discontinuance of the proceedings in DATE being as a result of an approach to the ORG by SOCARDINAL . PERSON brought the conversation to the attention of prosecuting counsel . Counsel took the view that the conversation had no relevance to the trial and it was not brought to the attention of the judge . During the trial , the same journalist discussed his knowledge of the applicant \u2019s informant activities with members of the deceased \u2019s family and others in the public gallery , some of whom were friends of prosecution witnesses . CARDINAL of the group told the journalist that he knew the applicant was an informant and he wanted him to be convicted of the murder . The deceased \u2019s sister discussed the conversations with PERSON , who did not confirm or deny that the applicant was an informant .","The prosecution evidence at trial included details of when , where and to whom the applicant had made telephone calls , revealing inconsistencies in his account , the telephone evidence that he was near to the flat on DATE TIME , evidence from PERSON and PERSON about the applicant \u2019s movements and the account of PERSON . In addition , the clothing found on the deceased , stained with the applicant \u2019s semen , was not the same as the clothing she had last been seen in by PERSON in TIME , tending to suggest that the applicant had had sexual intercourse with her after , rather than as he said , before that time . In cross examination PERSON credibility was to some extent damaged when she claimed that on DATE the applicant told her the police were harassing him about a murder , that is , before the body had been discovered .","The applicant disputed the alleged time of death and relied on the evidence of a pathologist to the effect that the murder was more likely to have taken place on DATE , DATE . He maintained that he had not seen the deceased after they had consensual sexual intercourse on DATE , CARDINAL DATE . He called alibi evidence for the DATE TIME , including evidence from a PERSON , ( against whom it later transpired he had informed ) .","On DATE the applicant was convicted of the murder by a majority of CARDINAL . On TIME of the applicant \u2019s conviction , a story on the television news referred to the applicant as a police informant . Subsequently , information about the applicant \u2019s activities as an informant appeared in newspaper articles , a television programme and a book . In DATE the applicant was served with the letter written in DATE , confirming that his application for asylum had been refused .","Following a complaint by the deceased \u2019s relatives , a police inquiry was held ( ORG ) . From DATE a large volume of material was collated . Those who made statements in the course of the inquiry included PERSON and PERSON It was clear from the statements that they and many others had suspected or known before the murder that the applicant was an informer and that he had given information leading to the arrest and imprisonment of PERSON . It was also suspected that he had informed on a relative of another prosecution witness ( who had not in the event been called to give evidence at the trial ) . It was not clear whether they had said this to the police when they initially gave their statements in the murder investigation . PERSON gave evidence to the inquiry and confirmed that he was unaware of any connection between the information given by the applicant and the murder investigation until after the trial .","The applicant lodged grounds of appeal in DATE , and his application was referred directly to ORG , who granted leave to appeal . The court ordered disclosure of statements and documents from ORG and part of the applicant \u2019s Informant file . It was only as a result of the disclosure that the applicant \u2019s representatives became aware of the information the applicant had given about the relatives of PERSON and others and of the discussion between the journalist and PERSON during the trial . They also became aware that a senior officer from SOCARDINAL had attempted to see the applicant in the cells during his trial to inform him that his status as an informant had become known , but that this was no fault of SOCARDINAL . The ORG representative at court had refused the officer permission to visit the applicant . The applicant lodged more detailed grounds of appeal in DATE following the disclosure ordered by the court .","In DATE , the applicant argued before ORG that , ( a ) the ORG should have disclosed to the applicant \u2019s representatives the fact that he was an informer and the nature of the information he had given , ( b ) the ORG should have made the same disclosure to the trial judge , ( c ) the judge was wrong to make no order for disclosure on the ORG hearing , ( d ) the restricted information given to the trial judge meant that he was unable properly to fulfil his functions and discretion as to disclosure , ( e ) the ORG should have disclosed to the applicant and\/or his lawyers and the trial judge the fact that some prosecution witnesses knew he was an informant , ( f ) when it became known , the ORG should have disclosed to the judge , the applicant and\/or his lawyers that press and members of the public knew of the applicant \u2019s status , and ( g ) the reason the applicant had not told his lawyers of his informant status was because his handlers had put pressure on him not to .","ORG heard evidence from the applicant , his handlers and PERSON . The court noted that the information given by the applicant ( in particular that relating to the relatives of PERSON ) was relevant to an issue in the case , but there was no duty on the Crown to disclose it as it was known to the applicant , who chose not to disclose it . The judge had been correct to make no order for disclosure . There were good public policy reasons why information given confidentially to the ORG by the applicant should not be disclosed to his lawyers without his permission . The court did not accept the applicant \u2019s argument that pressure had been put on him by his handlers not to reveal his status to his lawyers . Having heard evidence from the applicant on the point the court found him to be untruthful .","As to the submission that the applicant and\/or his lawyers should have been told when it became apparent that the knowledge of his informant status had become public , Lord Justice PERSON said :","\u201c It is a matter of some concern that not even the judge was told of this development . Had it come to the knowledge of the appellant it may very well be that it would have worked a change of heart with regard to telling his counsel about his informant status .... There was no longer any good reason for keeping the information to himself and counsel would have been free to cross - examine PERSON as to motive . We say \u2018 free to cross - examine\u2019 advisedly . It would have been a matter requiring careful thought . After all ... cross - examination on the lines suggested could have had a serious down side , namely the loss of the alibi witness , PERSON , against whom the appellant had informed and the introduction of the risk of character being put in issue . \u201d","ORG considered that ORG was an accurate and truthful witness and accepted that neither he nor prosecuting counsel had any reason to know the relevance of the applicant \u2019s informant status to the issues in the trial . The court went on to conclude that the possible advantage to which the applicant could have put the information was not without risk , and in any event the ORG \u2019s case did not depend on PERSON evidence . Evidence of the applicant \u2019s guilt was overwhelming . On DATE the appeal was dismissed .","The procedure to be applied when determining questions of disclosure was governed at the time by common law . At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged .","In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL Cr . App . PERSON ( \u201c the LAW ) ) . According to the LAW , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was \u201c sensitive material \u201d which , because of its sensitivity , it would not be in the public interest to disclose . \u201c Sensitive material \u201d was defined as including :","\u201c ... ( b ) it is by , or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ... \u201d","According to paragraph CARDINAL ,","\u201c ... in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence . \u201d","The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution , although any doubt should be resolved in favour of disclosure .","In NORP v. Ward ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that :","\u201c ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed . \u201d","ORG judgment in PERSON , ORG . CARDINAL Cr . App . PERSON ) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including , where appropriate , making an application to the court ex parte . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had \u201c as much protection as can be given without pre - empting the issue \u201d . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure \u201c in the interests of securing fairness to the defendant \u201d . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .","In NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , the Lord Chief Justice , giving the judgment of ORG , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . \u201c Material \u201d evidence was defined as evidence which could be seen ,","\u201c ... on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) \u201d .","Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . In that respect , the more full and specific the indications given of the issues the defence were likely to raise , the more accurately the prosecution and judge would be able to assess the value to the defence of the material . If the disputed material might prove the defendant \u2019s innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .","In NORP v. PERSON ( [ DATE ] Cr . App . CARDINAL ) , ORG referred to the duty of the trial judge to keep material under review and to the duty of prosecuting counsel to inform himself fully about the content of any \u201c disputed material \u201d , so that he was in a position to invite the judge to reassess the situation if appropriate . The court recognised that there was a limit to the scope of discovery required of the ORG however , and for example , there was no legal duty on the Crown to disclose material which was only relevant to the credibility of a defence witness . ORG ( [ DATE ] A.C. CARDINAL ) , confirming the ORG of Appeal decision , observed that :","\u201c ... the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the ORG . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61877","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2004,"docname":"CASE OF VACHEV v. BULGARIA","importance":1,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in PERSON . He was the executive director of ORG , a ORG company , against which bankruptcy proceedings were opened in DATE .","On DATE the Teteven ORG opened criminal proceedings against the applicant and against the deputy director of ORG and a company employee .","On DATE the applicant was charged with abuse of office and making false official documents , contrary to Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ( \u201c the ORG \u201d ) . It was alleged that , together with the deputy director , he had abused his managerial position during DATE DATE and had occasioned losses to the company in order to secure a financial benefit for a private limited liability company in which his wife was a member . The alleged loss to ORG amounted to CARDINAL old NORP levs ( ORG ) . It was also charged that to facilitate that offence the applicant had made false documents and had incited the deputy director and a company employee to make false documents .","On DATE a prosecutor of ORG ordered the suspension of the applicant from his position of executive director , on the grounds that the charges against him were for jobrelated offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office .","On DATE the investigator in charge of the case ordered an expert financial report , which was assigned to CARDINAL former employees of ORG .","On DATE counsel for the applicant requested to be allowed to consult the case file . The request was granted on DATE .","A graphological report ordered earlier was ready on DATE .","On DATE the applicant was questioned . Counsel for the applicant requested to be allowed to inspect the case file . The investigator allowed them to consult certain documents but refused access to the whole file .","On DATE the expert financial report ordered on DATE was ready .","On DATE and DATE the investigator ordered expert reports on the prices of certain items relevant to the investigation .","On DATE the applicant was questioned and was allowed , together with his counsel , to consult certain documents in the case file , including the expert reports .","On DATE counsel for the applicant requested the disqualification of CARDINAL of the experts who had prepared the expert financial report . They argued , inter alia , that CARDINAL of the experts had been chief accountant of ORG and had been dismissed for disciplinary reasons by the applicant , which cast doubt on his objectivity . The request was denied .","It seems that most of the witnesses in the case were questioned on dates DATE .","On DATE the applicant was questioned . His request to be allowed to consult the case file was granted .","On DATE counsel for the applicant again requested the disqualification of the experts who had prepared the expert financial report . They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of ORG .","DATE the applicant was presented with the amended charges . These included aggravated embezzlement facilitated by the making of false official documents ( Article CARDINAL in conjunction with Article CARDINAL of the ORG ) , embezzlement ( LAW ) , abuse of office ( LAW ) , deliberately entering into contracts disadvantageous to the company he was managing ( LAW ) and making false official documents ( LAW ) . It was alleged that DATE and DATE , together with the deputy director of ORG , he had embezzled company assets amounting to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , for the commission of which offence he had made false official documents , that in DATE he had misappropriated a trailer owned by ORG , that DATE and DATE , together with the deputy director , he had abused his office to secure a financial benefit for a private company , that DATE and DATE , together with the deputy director , he had deliberately made disadvantageous contracts between ORG and the same private company for which he had secured a financial benefit , and that in DATE he had made CARDINAL false invoices for sums amounting to MONEY .","After the being charged the applicant was questioned in the presence of counsel . He refused to give explanations .","On DATE the applicant and his counsel were allowed to consult the entire case file . The applicant objected to the expert reports and requested the disqualification of the experts . The investigator denied his requests and proposed to the prosecution that the applicant be indicted .","On DATE counsel for the applicant requested that the case be remitted for additional investigation , arguing that this was necessary to rectify certain procedural violations .","On DATE ORG granted the request and referred the case back for investigation . It observed that the relevant circumstances about the relations between ORG and the private company which had allegedly benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences . It gave specific instructions as to the facts which had to be established . It further expressed the view that the applicant \u2019s request for the disqualification of CARDINAL of the experts who had prepared the expert financial report was wellfounded , since he had been dismissed by the applicant for disciplinary reasons and the applicant had good reasons to fear his lack of objectivity . It was therefore necessary to prepare a new expert report . In addition , it asserted that it was necessary to charge the applicant anew , since the original presentation of the charges against him had not been specific enough . Finally , it noted that the applicant \u2019s counsel had also been ORG \u2019s counsel in the bankruptcy proceedings against the company , which raised certain doubts as to a potential conflict of interests . It was therefore necessary to establish whether the applicant had reason to doubt the loyalty of his counsel , because if that issue was not elucidated , the applicant could use it as an argument that his defence rights had been infringed .","On DATE the investigator , complying with the instructions of the prosecution , ordered a new financial report .","On DATE the Teteven ORG , finding that the investigator in charge of the case had not carried out any of its instructions apart from ordering a new financial report , replaced him with a new one .","On DATE the new investigator proposed to discontinue the proceedings , on the ground that the charges against the applicant were not supported by sufficient evidence .","On DATE the Teteven ORG rejected the proposal and referred the case back for additional investigation . It held that the evidence was not sufficient because the investigation had not been performed thoroughly .","On DATE the investigator allowed the applicant to consult the case file .","On DATE the financial report ordered on DATE was ready .","On DATE counsel for the applicant informed the investigator that she would be unavailable until DATE .","On DATE the investigator charged the applicant anew . The charges included , apart from the previous ones , a new charge under LAW ( mismanagement resulting in loss for the company ) . After charging the applicant the investigator questioned him and allowed him and his counsel to consult the case file .","On DATE the investigator recommended that the applicant be indicted solely under LAW .","On DATE the Teteven ORG decided to discontinue the investigation in respect of the charges under Articles CARDINAL ( aggravated embezzlement ) , CARDINAL ( abuse of office ) and CARDINAL ( making false official documents ) of the ORG . On DATE ORG overturned that decision and referred the case back to the investigator . On appeal by the investigator on DATE the ORG affirmed the overturning .","On DATE ORG decided to drop the charges under LAW . Its decision was overturned by the NORP Tarnovo Appellate Prosecutor \u2019s Office on DATE and the case was referred back to ORG with instructions to carry out certain investigative steps ( inter alia , to order an expert report ) and elucidate certain facts relating to transactions carried out by ElpromEMT during DATE .","On DATE , when the case was back at the investigation stage , the investigator ordered an additional expert report .","On DATE the applicant \u2019s counsel informed the investigator that she would be unavailable until DATE .","On DATE the investigator allowed the applicant and his counsel to consult the case file .","On DATE the investigator recommended that the applicant be indicted under Articles CARDINAL ( mismanagement resulting in loss ) , and CARDINAL ( making false official documents ) of the ORG .","On DATE ORG decided to drop the charges under LAW and to transfer the case to ORG for continuation of the proceedings under the remaining charges .","On DATE the Teteven ORG remitted the case for additional investigation , holding that the investigative steps carried out up until then had not established all relevant circumstances .","On DATE the investigator ordered a new expert report , assigning it to new experts .","On DATE the applicant and the prosecution entered into a pleabargain agreement . The criminal proceedings against him were apparently discontinued soon after .","On DATE the applicant was put under house arrest by an investigator who saw him in person and questioned him .","On DATE the applicant lodged with ORG a request to be released on bail . On DATE ORG denied the applicant \u2019s request . The applicant appealed to ORG . The appeal was dismissed by an order of DATE . The applicant appealed to ORG . On DATE ORG dismissed the appeal . The applicant lodged an appeal with the Head of ORG of ORG . On DATE the Head of ORG dismissed the appeal .","In the meantime , on DATE and DATE , ORG had denied CARDINAL requests by the applicant to be allowed to leave his home for DATE . Another request by the applicant to be allowed to leave his home for DATE was denied on DATE . On DATE ORG allowed the applicant to leave his home for DATE .","DATE . On DATE the Teteven ORG denied a renewed application for release by the applicant .","On DATE the applicant submitted a new request for release on bail . On DATE ORG granted bail , setting the amount at FAC . On an unspecified date in DATE the applicant paid the amount of the bail and was released from house arrest .","By LAW ( \u201c the ORG \u201d ) , a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecutable offence . CARDINAL such measure is house arrest .","Article CARDINAL of the ORG , as in force at the material time , defined house arrest as follows :","\u201c ORG arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities . \u201d","In its interpretative decision no . CARDINAL\/CARDINAL ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e \u043a\u043e\u043d\u0441\u0442\u0438\u0442\u0443\u0446\u0438\u043e\u043d\u043d\u043e \u0434\u0435\u043b\u043e \u2116 CARDINAL \u043e\u0442 DATE \u0433. , \u043e\u0431\u043d. , NORP \u0431\u0440\u043e\u0439 CARDINAL \u043e\u0442 DATE \u0433. ) ORG held as follows :","\u201c ... [ ORG arrest is also a form of detention and [ constitutes ] an interference with the inviolability [ of the person ] . \u201d","At the relevant time and until DATE house arrest at the pretrial stage of criminal proceedings could be ordered by an investigator or by a prosecutor . The investigator or prosecutor was not under an obligation to interview the accused in person when ordering house arrest . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG \u2019s judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , ECHR MONEY ) .","At the relevant time the ORG did not provide for judicial review of house arrest . Thus , the only possibility for a person put under house arrest was to apply to a prosecutor who could order his release . If the prosecutor refused to release the person under house arrest , he or she could appeal to a higher prosecutor ( ORG CARDINAL and CARDINAL of the ORG ) .","The ORG was amended with effect from DATE and at present provides , in the newly introduced paragraph CARDINAL of its LAW , for full initial and subsequent judicial review of house arrest .","On DATE ORG decided to request ORG to rule on the compatibility of LAW ORG , governing pretrial detention , with , inter alia , LAW . It reasoned that by virtue of LAW was incorporated into NORP law and that all statutory provisions should therefore be in compliance with it . It also stated that when deciding cases before them the NORP courts should take into account the caselaw of ORG CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0440\u0442 DATE \u0433. \u043f\u043e ORG \u2116 DATE \u0433. \u043d\u0430 \u041e\u0421\u041d\u041a \u043d\u0430 ORG ) .","Section CARDINAL of ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 , \u043f\u0440\u0438\u0447\u0438\u043d\u0435\u043d\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 \u201c ) provides , as relevant :","\u201c The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :","NORP pretrial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds[. ] \u201d","The reported caselaw under section CARDINAL(CARDINAL ) of the LAW is scant . However , all judgments in which ORG liability was found to arise under this provision related specifically to pretrial detention under LAW ORG , not house arrest under LAW ORG or any other form of deprivation of liberty ordered in the context of criminal proceedings ( \u0440\u0435\u0448. \u2116 DATE \u0433. \u043e\u0442 DATE \u0433. PERSON \u2116 DATE \u0433. \u043d\u0430 \u0412\u041a\u0421 , \u0440\u0435\u0448. \u2116 CARDINAL\/CARDINAL \u0433. \u043e\u0442 DATE \u0433. \u043f\u043e PERSON \u2116 CARDINAL\/CARDINAL \u0433. \u043d\u0430 ORG ) . The reported case - law also suggests that the terms \u201c unlawful \u201d and \u201c lack of lawful grounds \u201d refer to unlawfulness under domestic law .","By CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by the \u201c unlawful bringing of criminal charges \u201d . Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty .","Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the LAW have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; \u0440\u0435\u0448. \u2116 DATE \u0433. \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. , \u043f\u043e PERSON \u2116 DATE \u0433. \u043d\u0430 \u0412\u0421 GPE \u0433.\u043e. ) . The Government have not referred to any successful claim under general tort law in connection with unlawful house arrest ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","5-4","5-5","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5241","languageisocode":"ENG","respondent":"NOR","branch":"ADMISSIBILITY","date":2000,"docname":"HUSSAIN AND C. v. NORWAY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The first applicant , Mr PERSON , and the second applicant , his daughter PERSON , are respectively NORP and NORP nationals born in DATE and DATE and living in GPE , GPE , and GPE , GPE . They are represented before the Court by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .","The first applicant arrived in GPE in DATE and was granted a temporary residence permit for education purposes . In DATE he was granted a residence permit for an indefinite duration .","According to the first applicant he had met the second applicant \u2019s mother at DATE . They had established a relationship as from DATE , had got engaged in DATE and had planned to marry in DATE , but this did not materialise as PERSON was detained on remand in DATE on suspicion of drug offences .","On DATE the Eidsivating High Court ( lagmannsrett ) convicted the first applicant of the possession and attempted sale of QUANTITY of heroin . It deemed the heroin to have been of a particularly high degree of purity and noted that CARDINAL user had died . While the first applicant 's replies to the charges had said little more than the bare minimum , ORG did not find it established from where he had received the drugs or what role he had played in the importation and acquisition of the drugs . However , although he had submitted that he had been put under strong pressures and had reluctantly received the heroin in order to store it , ORG did not find that his role had been as modest as he had claimed . He had failed to explain why , in defiance of what he described as an order , he decided to sell a large part of the drug to CARDINAL of his co - accused and to keep another part . It was further noted that in connection with a delivery of heroin by the first applicant , CARDINAL of his co - accused in the trial had come to the agreed place with CARDINAL other co - accused as a bodyguard . In view of the particularly serious nature of the offence , ORG sentenced the first applicant to DATE imprisonment .","On DATE ORG decided to expel the first applicant . On appeal , the latter decision was upheld by ORG ( PERSON ) on CARDINAL DATE . He subsequently requested that the expulsion order be altered , but ORG and ORG , in decisions dated respectively DATE and DATE , refused the request .","The first applicant and his wife were married at Ullersmo prison in DATE , i.e. after the applicant 's conviction and sentence to DATE imprisonment and the decision to expel him from GPE . CARDINAL daughters were born to them , the second applicant , born in DATE , and PERSON , born in DATE .","While serving his prison sentence the first applicant had extensive contact with his wife and the second applicant . Following his release in DATE , the first applicant lived with his family for DATE until DATE , when he was expelled from GPE to GPE . His wife and the second applicant accompanied him to GPE , but returned after DATE . The first applicant was twice granted a visa to enter GPE in order to attend the court proceedings , but was denied a visa in connection with PERSON 's birth . During DATE , his wife and CARDINAL children lived with him for DATE in GPE .","A medical certificate of DATE issued by a paediatrician states that , since the second applicant was a baby , she had suffered from atopical eczema causing her nuisance particularly during DATE , DATE and DATE , and requiring that her entire body be treated with moistening cream DATE and with oil baths . She was allergic to milk and was taking substitute milk products . She was also allergic to eggs and pollen . She had asthma and had experienced asthma fits serious enough nearly to require hospitalisation .","According to certain statements dated DATE and DATE by personnel in charge of the second applicant 's kindergarten , the first applicant had been present and actively took part in her care ; she had said that she missed her father and there was a clear risk that her separation from him would have negative psychological consequences for her .","On DATE ORG ( byrett ) rejected the first applicant 's appeal against the ORG 's above - mentioned decision of CARDINAL DATE . He then appealed to ORG , which , on DATE , upheld ORG judgment . He further appealed to ORG ( PERSON ) which , in a judgment of CARDINAL DATE , by CARDINAL votes to CARDINAL , upheld ORG conclusion on the merits but overturned the lower courts ' decisions ordering him to pay legal costs .","In its judgment ORG considered , inter alia , whether the expulsion would be consistent with GPE 's obligations under LAW , as interpreted and applied in a number of cases by the Convention institutions , in particular whether the measure was necessary in a NORP society , which the first applicant disputed . Mr Justice PERSON stated on behalf of the majority :","\u201c The ground for the expulsion is the very serious drug offence of which Mr PERSON has been found guilty . ...","PERSON was convicted under LAW ) , cf . ( CARDINAL ) , of LAW for serious narcotics offences relating to a very large quantity of drugs . The maximum penalty was DATE imprisonment , while the minimum was DATE . It was thus a very serious offence of which he was found guilty and the penalty imposed was DATE imprisonment , of which DATE and DATE had been served . PERSON was found guilty of the possession and attempted sale in respect of QUANTITY of heroin of a high degree of purity . It is stated in ORG judgment that each QUANTITY of the product could be divided into CARDINAL doses ; so that the substance posed a very great danger of being commercialised . ...","\u2026 In the present case , there is no information to the effect that PERSON has been involved in other criminal offences . This is relevant to the assessment but is overshadowed by the seriousness of the offence of which he has been found guilty .","I now turn to the arguments submitted against expulsion .","Even though it has been conceded that PERSON own interests would not on their own suffice to make the expulsion incompatible with the Convention , it must be relevant that he has resided in GPE from DATE and has received an education and worked here . Until his detention on remand he had lived here for DATE . It may be mentioned that it was only after he was detained that he applied for NORP citizenship and that his application was refused . He has maintained links with his family in GPE during his visits to the country in DATE and DATE . \u2026","The circumstances , which most strongly militate against expulsion , are those related to his family life with his spouse and CARDINAL daughters . The marriage was concluded while PERSON was serving his prison sentence and after the police had ordered the expulsion . Nevertheless , there is agreement that family life was established before he was detained on remand . The couple \u2019s eldest child , [ the second applicant ] , who is now DATE , was born while her father was serving his sentence but , according to the information available , she has had contacts with him during visits and home - leave and the family lived together for DATE from the applicant \u2019s release until his expulsion was effected . As already mentioned , [ the second applicant ] has considerable health problems related to asthma and allergies . Like ORG , I find it established that the maintenance of the expulsion order would split the family since , because of [ the second applicant ] , it is not expected that the mother and the daughters will settle in GPE . The possibilities of visits will be limited - in GPE , because of [ the second applicant \u2019s ] health - and in GPE , because PERSON expulsion is made permanent . It is evident that this will constitute a considerable burden to them all , in particular to [ the mother ] who will be alone in assuming the care of the daughters , one of whom is in particular need of care .","It has been specifically claimed that in GPE it will not be possible to bring up the daughters in accordance with the mother \u2019s NORP faith . Reference is made to LAW CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW . I will not consider those matters more closely since I take it that it is not expected that the mother and the daughters will move to GPE . ...","The appellant party has referred , inter alia , to the report recently given by the ORG in the case of ORG v. GPE and has submitted that to a high degree it supports his views . ...","As regards this decision , I should like to point out that second generation immigrants often raise particular issues , whereas under NORP law expulsion may not be effected with respect to persons who are born in GPE and have lived there continuously . PERSON was DATE when he came here for educational purposes and has maintained contacts with GPE .","The way I interpret the existing case - law is that in cases of such serious narcotics offences as this , it falls within the ORG \u2019s margin of appreciation to expel foreign nationals , even though it would seriously affect the person expelled and his family . \u2026","In the final assessment I can not see that in the case under consideration the authorities\u2019 decision to expel constitutes a disproportionate measure against the scourge of drug trafficking . This was clear in DATE when the expulsion was decided by the police and ORG . The interest in protecting family life has nevertheless been given greater weight in the subsequent refusals to alter the expulsion order , the last refusal being issued by ORG on DATE . The matter was then considered on the basis of the relevant circumstances obtaining at that time . Nevertheless , having regard to the serious drug offence in respect of which PERSON has been found guilty , I consider that the interest of protecting family life does not suggest that expulsion would be disproportionate and incompatible with the LAW , despite the considerable burden it entails . It is , however , a very difficult balancing of interest with which we are faced here . \u201d","In his dissenting opinion , Mr Justice PERSON concluded on behalf of the minority that the expulsion order must be declared unlawful ( ugyldig ) as being disproportionate . His reasoning may be summarised as follows . Although the seriousness of the offence was a consideration that weighed heavily and the interests of PERSON could not on their own justify declaring the expulsion order unlawful , the consequences for the family ought to be decisive in this case . The situation for the first applicant 's wife and the consequences for their marriage were almost identical to those described in paragraphs CARDINAL and CARDINAL of the NORP v. GPE judgment of CARDINAL DATE ( Series A no . CARDINAL-A ) . In the present case the interests of minor children were also at stake . Because of the second applicant 's illness it was excluded that the wife would move to GPE . There were great difficulties involved in maintaining family life by means of relatively short , occasional visits by the family to GPE . While it was very likely that the spouses sooner or later would be forced to divorce , the interest of avoiding divorce weighed more heavily when , as here , they had children . Moreover , there was obviously a greater risk than normal that the contacts between the father and the children would be damaged . A child in as much need of care as the second applicant would have a particular need for maintaining close contact with both parents . The mother , who alone assumed the responsibility for the CARDINAL daughters , had a strong need for the father \u2019s help in caring for the children ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23198","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2003,"docname":"NESSA and OTHERS v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["PERSON , is a LOC national , who was born in DATE and lives in GPE , GPE . She is complaining on behalf of her daughter , PERSON , and her grand - daughter , Ms PERSON . They were born in DATE , respectively , and live in GPE . PERSON PERSON and PERSON and PERSON are hereafter referred to as \u201c the applicants \u201d . They are represented before ORG by Ms PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","PERSON arrived in GPE on DATE , under a temporary residence permit granted for the period from DATE until DATE . The residence permit was issued for the purpose of university studies . She immediately , on DATE , applied for a permanent residence permit for business activities and studies .","PERSON daughter , PERSON , was born on DATE in GPE .","ORG ( ulkomaalaisvirasto , utl\u00e4nningsverket ) issued a temporary residence permit for the period from DATE until DATE for the purpose of studies .","PERSON was no longer registered with the university for the term of DATE . The applications of GPE and PERSON to be granted a residence permit were refused by ORG on DATE . It noted that ORG , who had been granted a residence permit in GPE for DATE on the basis of her studies in GPE , had returned to GPE after having attended only a few courses at ORG . PERSON argued that she had been unable to study because of her pregnancy . The ORG considered that PERSON , who had however not been hindered by her pregnancy from founding a business together with CARDINAL of her brothers , did not have such family ties in GPE that she would be entitled to stay there . Taking into account that ORG husband lived in GPE and that PERSON could continue her business from there ( the business idea was to import goods from GPE to GPE ) , her request was refused . Accordingly , PERSON was not granted a residence permit either . PERSON and PERSON travelled to GPE in DATE .","On DATE PERSON \u2019s parents arrived in GPE as visitors with a DATE tourist visa . They were later granted a residence permit on a humanitarian basis as CARDINAL of their sons had already stayed in GPE for over DATE and had been granted NORP citizenship . The parents were both also diagnosed with severe chronic illnesses ( the father with cancer and the mother with kidney failure ) which could not be treated effectively in their country of origin .","ORG and PERSON appealed to ORG , arguing that most of their family lived in GPE and that PERSON wished to continue her studies which she had not yet finished . Their appeal was refused by ORG on DATE . The court noted that PERSON had originally arrived in GPE because of her studies but that the reason for her visit had changed into business and family ties during her stay . Taking into account that PERSON was DATE , ORG did not find that the interests of the child rendered the refusal of the residence permit unreasonable .","ORG and PERSON applied for leave to appeal from ORG on the basis of new circumstances as PERSON \u2019s mother , PERSON , had fallen seriously ill in GPE , suffering from kidney failure , requiring dialysis CARDINAL times a week . On DATE ORG refused PERSON and PERSON leave to appeal .","PERSON gave birth to her second daughter in GPE in DATE .","In DATE PERSON and her family applied for visas to enter GPE . The requests were refused on DATE , with reference to LAW ( ulkomaalaislaki , utl\u00e4nningslagen ) . The visa application indicated that visas were not sought for \u201c travel or other comparable short - term stay in the country \u201d but rather for long - term stay for which a residence permit should be applied for instead . On DATE the ORG advised ORG and her family to apply for residence permits , if their purpose was not to stay in the country for a short time only .","On DATE PERSON submitted to the ORG applications for a residence permit for herself and her family . The family was interviewed at ORG on DATE and the difference between a residence permit application and a visa application was explained to them .","On DATE PERSON informed the ORG that they wished to withdraw the residence permit applications and apply instead for a short - term visa . Subsequently , the fees they had paid ( amounting to LOC ) for the residence permit applications were returned by ORG .","ORG and her family filed new visa applications on DATE . These applications were also refused and the decisions on refusal were mailed to the persons concerned on DATE . The reasons for the refusals were the same as in respect of the first visa applications . However , having received several petitions , the ORG reviewed the visa applications and sent PERSON a letter on DATE , offering her and her younger child a possibility to have a DATE tourist visa for GPE for the purpose of travelling to see their sick mother \/ grandmother . PERSON was not offered a visa . Since then PERSON has not been in contact with the ORG and nor has she replied to the letter or filed a visa application as suggested .","On DATE PERSON \u2019s brother sent the Embassy an e - mail message , according to which his family was not able to accept that visas should be issued only to her sister and her younger child , since in their opinion the whole family should travel together .","Since ORG and her family \u2019s earlier applications for visas had been refused by appropriate decisions , and she had herself withdrawn the residence permit applications , they have at present no residence permit or visa applications pending .","According to LAW of LAW ( CARDINAL\/CARDINAL ) , a visa means a permit or a decision issued for tourist travel or comparable short - term visit on the basis of which an alien may enter GPE , provided that he fulfils the other entry conditions .","Under LAW of LAW , a visa must be issued by a NORP diplomatic representation or consulate abroad .","Section DATE ( CARDINAL\/CARDINAL ) of LAW defines the family members to whom a residence permit may be issued . Such family members include the spouse of the alien residing in GPE as well as his or her children under DATE for whose custody he is responsible . Should the alien residing in GPE be under DATE , his custodian is considered a family member to whom a residence permit may be issued on the basis of family ties .","Section DATE ( CARDINAL ) of LAW provides for a possibility to issue a residence permit on the basis of family ties .","According to LAW , subsection CARDINAL ( CARDINAL ) of LAW , residence permits on the basis of family ties shall be issued by ORG .","According to LAW of LAW , an appeal may be lodged within DATE to ORG against ORG decision not to grant a residence permit .","According to LAW , there is no appeal against decisions which are not mentioned in Sections CARDINAL , CARDINAL or DATE of LAW . Accordingly , there is no right of appeal against the decision not to grant a tourist visa ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102113","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2010,"docname":"CASE OF TRDAN AND \u0106. v. SLOVENIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 8","judges":"Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicants are father and son . The first applicant was born in DATE and lives in PERSON . The second applicant was born in DATE and lives in GPE .","The first applicant was in a relationship with S.\u0106. The relationship ended DATE before the second applicant was born . The first applicant acknowledged the child by signing a statement on paternity with ORG enota PERSON ) . The second applicant 's mother PERSON never gave her consent to the above - mentioned statement .","On DATE the first applicant brought an action with ORG ( Okro\u017eno sodi\u0161\u010de v PERSON ) for custody and determination of paternity . He also lodged a request for an interim measure ensuring him contact with his son pending the outcome of the main proceedings . Moreover , he requested the appointment of a special representative to represent the second applicant and to be exempted from paying court fees .","On DATE ORG issued a decision rejecting the request for an interim measure . The court stated that the question of paternity should be resolved before such measure could be applied . The first applicant appealed .","On DATE and DATE the first applicant lodged CARDINAL requests for a hearing to be set and for the matter to be resolved promptly .","On DATE ORG ( PERSON ) issued a decision upholding the appeal and remitting the question of provisional contact arrangements for re - examination .","On DATE the first applicant lodged a supervisory appeal ( nadzorstvena prito\u017eba ) with ORG ( Ministrstvo za pravosodje ) , complaining that the judge 's work in the case was slow and ineffective .","On DATE the first applicant lodged preliminary submissions and a reply to the counterclaim lodged by S.\u0106. on CARDINAL March CARDINAL .","On DATE ORG issued the first interim contact order allowing the first applicant to have contact with the second applicant once DATE for TIME . The order was immediately enforceable , as appeals do not stay the enforcement of such orders .","S.\u0106. lodged an objection .","On DATE the ORG ( Center za socialno delo PERSON ) issued a decision appointing a curator ad litem to represent the second applicant .","On DATE ORG sent a report to ORG regarding the progress in the case following the first applicant 's supervisory appeal .","On DATE the first applicant lodged an appeal against the order on provisional contact arrangements issued on DATE . He claimed that S.\u0106. and her father had prevented him from visiting the second applicant and had threatened him with physical violence . He requested the first - instance court to modify the interim contact order concerning the enforcement by setting a fine in the event of non - compliance to ensure contact with the second applicant .","On DATE the first applicant lodged a request for priority treatment , claiming that he had again been prevented from seeing the second applicant . He also lodged a complaint ( ustna ovadba ) with the police .","On DATE ORG set a hearing for DATE . The first applicant requested that the hearing be set earlier .","On DATE ORG issued a decision exempting the first applicant from paying court fees .","On DATE the first applicant requested the hearing to be rescheduled , which was refused .","On DATE ORG held a hearing regarding provisional contact arrangements and the objection of S.\u0106. to the order of CARDINAL DATE . The court issued a new contact order of its own motion pending the resolution of the case . The court allowed contact between father and son twice DATE under the supervision of a social worker . It also set out a fine of CARDINAL NORP tolars ( SIT ) ( approx . CARDINAL ( ORG ) ) to be imposed in the event of non - compliance . On DATE a partial judgment was issued establishing that the first applicant was indeed the biological father of the second applicant . The parents also resolved the issue of alimony by signing a court settlement .","On DATE the first applicant lodged an appeal challenging both interim contact orders ( see paragraphs CARDINAL above ) by requesting more frequent contact .","On DATE ORG quashed both appeals .","On DATE the first applicant lodged a request for a new interim contact order , requesting more frequent contact .","On DATE ORG rejected the first applicant 's request and issued an order of its own motion , allowing contact under new terms . The court allowed contact twice a week without supervision and every other DATE and fixed an arrangement for DATE . The court set a fine of SIT CARDINAL ( approx . EUR CARDINAL ) in the event of non - compliance . S.\u0106. lodged an objection .","On DATE and CARDINAL DATE the first applicant lodged CARDINAL requests with ORG for imposition of a penalty or use of physical force to enforce the order , since GPE was not respecting the interim contact order and was obstructing the applicant 's visiting rights . The first applicant stated that the visits had been obstructed on CARDINAL occasions DATE and DATE . It transpires from the case - file that the second applicant was frequently ill DATE and DATE and was hospitalized on DATE .","On DATE the first applicant lodged a supervisory appeal in accordance with the provisions of the LAW on the Protection of the Right to a Trial without Undue Delay ( \u201c the CARDINAL Act \u201d ) .","On DATE ORG held a hearing regarding contact arrangements and rendered a decision , rejecting ORG objection to the decision issued on DATE ; the decision therefore remained in force ( see paragraph CARDINAL above ) . Both parties appealed .","On DATE ORG issued a decision appointing an expert in psychology in order to determine which party to the proceedings should be granted custody . On DATE , following an unsuccessful contact , the first applicant lodged a complaint with the police against DATE accusing her of abduction of a minor . It transpires from the case - file that the first applicant lodged CARDINAL such complaints during the proceedings .","On DATE CARDINAL ORG issued a decision , rejecting the first applicant 's requests from CARDINAL and DATE as unsubstantiated . The court found that the contact visits had been obstructed or prevented mainly because of the child 's illness , and that the first applicant had not made an attempt to reschedule as set out in the interim order . The first applicant appealed .","On DATE the supervisory appeal was rejected as unfounded ( see paragraph CARDINAL ) .","The second applicant was again hospitalized DATE and DATE .","On DATE ORG issued a decision quashing the decision of DATE ( see paragraphs CARDINAL and DATE above ) and rejected the first applicant 's request for a new interim contact order . The court found that despite the progressing relationship between father and son allowing contacts without supervision was premature and such changes should be done more gradually . The order of CARDINAL DATE was now again in force .","On DATE ORG received the expert 's opinion .","On DATE the first applicant lodged a new request for an interim contact order .","On DATE ORG issued an interim contact order of its own motion allowing more frequent contact visits following the favourable expert opinion . A fine for non - compliance was set . S.\u0106. lodged an objection .","On DATE ORG issued a decision rejecting the objection lodged by GPE to the interim contact order .","On DATE S.\u0106. lodged an appeal against the decision of DATE , claiming that the order was based on an expert opinion on which she had not been given the opportunity to comment .","On DATE the court received a report by the ORG , from which it was evident that both parents had been offered assistance by the department of psychology . S.\u0106. had attended CARDINAL meetings , the first applicant none .","It transpires from the case - file that the second applicant was frequently ill DATE and DATE and again hospitalized on DATE .","On DATE ORG upheld the appeal and remitted the case for re - examination ( see paragraph CARDINAL above ) .","On DATE ORG issued a decision requesting the appointed expert to modify the report .","On DATE the first applicant lodged a request for a hearing to be set and a new request for an interim contact order .","On DATE ORG received the modified expert opinion .","On DATE the first applicant lodged a supervisory appeal under LAW .","On DATE the supervisory appeal was rejected as unsubstantiated .","On DATE the first applicant lodged a new request for an interim contact order and a request for a hearing to be set .","On DATE the first applicant 's representative lodged a motion for a deadline under LAW .","On DATE the motion for a deadline was rejected .","DATE . On DATE the first applicant personally lodged a motion for a deadline .","On DATE the motion for a deadline was upheld and the case was given priority treatment .","On DATE the first applicant lodged an urgent request for the issuing of a new interim contact order .","On DATE the court issued a new interim contact order of its own motion , allowing more frequent contact visits without supervision and imposing a fine of EUR CARDINAL for non - compliance . S.\u0106. lodged an objection .","On DATE the case was reassigned to a new judge due to the previous judge 's extended sick leave .","On DATE a hearing was held and a new interim contact order was issued , setting a fine for non - compliance and further modifying contact arrangements . Both parties waived the right to appeal .","On DATE S.\u0106. lodged a preliminary submission requesting an additional expert opinion , whereby it could be established whether there had been physical violence against the second applicant by the first applicant . She had also informed ORG about her concerns .","On DATE the first applicant requested amendments to the new interim contact order .","On DATE the first - instance court rejected both requests and found it unnecessary to change the contact arrangements . The court acknowledged that the relations between the parties presented a problem , since there had been frequent accusations of a criminal nature on both sides . Following the report by ORG , the court assessed that the circumstances are not of such nature that the contact arrangements should be altered .","On DATE a main hearing was held regarding custody . The first - instance court tried unsuccessfully to reach a settlement between the parties . The court also ordered the expert to supplement the opinion and establish whether there is any reason the contacts between father and son should not take place . A new interim contact order was issued setting new contact arrangements and a fine for non - compliance . DATE appealed .","On DATE a hearing was held at which the first applicant submitted a request for a new interim contact order . The court issued a new order slightly modifying the provisional contact arrangements until the next main hearing , fixed for DATE . Based on the supplemented expert opinion the court slightly extended the contacts . A fine in the event of non - compliance was set again .","On DATE a hearing was held . ORG issued a judgment whereby the child was placed in the care of S.\u0106. and contact arrangements were set . The first applicant stated that the contact visits had been carried out in line with the last interim decision . Both parents stated that the contact visits had gone ahead satisfactorily in DATE . Pending final resolution of the case the court issued a new interim order establishing in detail the contact arrangements for DATE and public holidays .","On DATE the first applicant lodged an appeal against the first - instance judgment .","On DATE ORG rejected the appeal and upheld the first - instance judgment .","For the description of the relevant domestic law see PERSON and PERSON GPE ( nos . CARDINAL\/CARDINAL and CARDINAL , DATE , \u00a7 \u00a7 CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23054","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2003,"docname":"KINSIZ v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by PERSON PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated a plot of land belonging to the applicant in GPE . A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place .","On DATE , following the applicant \u2019s request for increased compensation , ORG awarded him an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum . On DATE ORG upheld the decision of the first - instance court . The due amount which was MONEY ( TRL ) including the interest , was paid to the applicant on DATE .","Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest was increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .","A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , \u00a7 \u00a7 CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , \u00a7 \u00a7 CARDINAL - CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60494","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2002,"docname":"CASE OF KOMANICKY v. SLOVAKIA","importance":3,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Nicolas Bratza","text":["The applicant was employed by ORG ( ORG n\u00e1rodn\u00fd v\u00fdbor ) in ORG . In DATE he was dismissed for breach of discipline . Subsequently courts at CARDINAL levels of jurisdiction declared the dismissal unlawful . Their decisions became final on DATE .","In DATE , while the above proceedings were pending , the national committees ceased to exist ex lege , and their liquidation formally ended on DATE . The national committees were replaced by district offices ( okresn\u00e9 \u00farady ) which were not formally their legal successors .","On DATE the ORG gave notice to the applicant pursuant to LAW ( CARDINAL ) ( b ) of LAW . The dismissal became effective on DATE . The applicant challenged this decision . He argued , in particular , that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment .","On DATE ORG ( Okresn\u00fd s\u00fad ) heard the parties and dismissed the applicant \u2019s action .","The applicant appealed . He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful , that he had become an employee of ORG after his dismissal in DATE had been declared unlawful on CARDINAL DATE , and that ORG had paid his salary until DATE .","On DATE ORG ( PERSON s\u00fad ) heard the parties . The case was adjourned and the representative of the defendant was requested to submit the ORG \u2019s regulation of CARDINAL DATE concerning the practical aspects of liquidation of the national committees . On DATE the applicant complained to ORG that it should have decided on the case on DATE as it had had all relevant evidence before it . Another hearing before ORG was held on DATE . The parties were acquainted with documentary evidence submitted by the representatives of the defendant . The applicant requested the exclusion of ORG judges .","On DATE ORG ( PERSON s\u00fad ) quashed the first instance judgment and ordered ORG to take further evidence . The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by ORG DATE and his second dismissal . In particular , ORG considered it necessary to establish whether the applicant had received a salary , or compensation therefor , during the period in question , that is , whether the sums which he had received had been paid from the funds allocated to ORG or from a special fund of ORG . The appellate court further instructed ORG to establish whether or not ORG had authorised the head of ORG to settle the applicant \u2019s claims . The decision stated that witnesses should be heard with a view to establishing the above facts . The case was sent back to ORG for a new adjudication .","The applicant and the representative of the defendant failed to appear before ORG on DATE . The applicant did not appear at subsequent hearings scheduled for DATE and CARDINAL DATE . He excused his absence on the last mentioned date . In his letter of CARDINAL DATE the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file . The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence .","Another hearing was scheduled for DATE . ORG proceeded with the case in the applicant \u2019s absence as , according to the Government , the summons had been served on the applicant \u2019s daughter and the applicant had not excused himself . The applicant contends that he was not summoned . On DATE the ORG heard CARDINAL officials of ORG who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of ORG . The compensation for pay the applicant received between CARDINAL DATE and DATE , that is , until his dismissal became effective , were paid from a special fund of ORG . The witnesses further explained that the notice which ORG had sent to the applicant related to his contract of employment with ORG which , in the meantime , had ceased to exist . ORG had sent it in accordance with the relevant instructions issued by ORG .","On DATE ORG adjourned the case as the applicant had excused himself in advance that he was ill .","The next hearing was scheduled for DATE . The applicant received the summons on DATE . According to the applicant , he submitted , at TIME on DATE , a letter to ORG registry informing the court that he would not attend the hearing scheduled for TIME on DATE . In the letter the applicant explained that , DATE , he had not been allowed to consult the case file and that , therefore , he did not consider it necessary to excuse himself for his absence . The Government maintain that the letter was delivered to the court \u2019s registry at TIME This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter , stamped by the court \u2019s registry , bears no indication of TIME when it was submitted .","On DATE ORG proceeded with the case in the applicant \u2019s absence . It delivered a judgment by which it dismissed the action . In the judgment ORG found that ORG was not a legal successor to the applicant \u2019s former employer and that the applicant had no right to be employed by ORG . The court held that , by sending a notice to the applicant , ORG had acted in accordance with the relevant regulations of ORG and of ORG . Under these regulations , the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by CARDINAL DATE . The court concluded that ORG had acted in accordance with LAW .","NORP The applicant appealed . He alleged that ORG had had no power to send him a notice , and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful . He alleged , with reference to the relevant pay slips , that he had been paid from the same account as the other employees of ORG after his first dismissal had been declared unlawful on DATE . The applicant considered irrelevant that ORG had put at ORG disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as , in his view , that sum of money had been used for different purposes . In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues . The veracity of his allegations could be proved by an expert .","The applicant also complained to the appellate court that ORG had not considered his arguments , that it had not established the relevant facts and that it had decided in his absence . Finally , the applicant stated that the appellate court should proceed with the case in his presence , that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified .","Hearings before ORG scheduled for DATE and DATE were adjourned as the parties did not appear . The applicant excused his absence on both occasions . Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence .","The next hearing was scheduled for DATE . ORG invited the applicant to submit a medical certificate should he not be able to attend , failing which the case would be decided in his absence . On DATE the applicant sent a registered letter in an envelope addressed to the \u201c ORG \u201d in PERSON . In the letter the applicant informed ORG that he was ill and enclosed a medical certificate . The applicant further asked the court not to proceed with the case in his absence . The letter indicated the case number , the name of the presiding judge and also the date of the hearing .","NORP The letter was stamped by the registry of ORG . The stamp indicates that the letter was delivered on DATE . The letter bears a hand - written remark by the president of ORG dated DATE and indicating that it should be transmitted to the presiding judge . The letter bears another hand - written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on DATE at TIME","The Government submit that the letter was considered to be a complaint and that the envelope was submitted , unopened , to the secretariat of the president of ORG on DATE . The president of ORG mistakenly dated his above instruction DATE . According to the ORG , the applicant \u2019s letter reached the presiding judge TIME after the delivery of the judgment on the case .","On DATE ORG examined the case in the applicant \u2019s absence and upheld the first instance judgment . It stated that the applicant \u2019s letter posted on DATE had reached the judges on DATE at TIME , that is after the hearing was over . The judgment further stated that the letter had been addressed to the president of ORG and not directly to the presiding judge .","In its judgment ORG pointed out that it had taken further evidence , in that it had requested ORG to submit a report concerning the delegation of its powers to ORG . It concluded , with reference to all the evidence before it , that the applicant \u2019s appeal was ill - founded .","NORP In particular , ORG found that the applicant \u2019s dismissal by ORG had been declared unlawful by a decision which became final on DATE . By that time the national committees had ceased to exist ex lege , and their liquidation had formally ended . In accordance with the relevant instructions issued by ORG and ORG , the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by DATE . ORG therefore upheld the view of the first instance court according to which ORG had acted in accordance with LAW . ORG had also regard to the supplementary evidence which ORG had taken on DATE and which indicated that the money which had been paid to the applicant had been derived from the budget of ORG . ORG concluded that the applicant had not become an employee of ORG . Accordingly , the notice in question was in conformity with LAW ( CARDINAL ) ( b ) of LAW .","On DATE the applicant lodged an appeal on points of law . He complained , inter alia , that he had not been able to act before the appellate court and invoked Article CARDINAL ( f ) of LAW .","On DATE ORG ( Najvy\u0161\u0161\u00ed s\u00fad ) rejected the appeal on points of law as being inadmissible without hearing the parties . In its decision ORG found that there had been no shortcomings within the meaning of Article CARDINAL ( f ) of LAW in the proceedings challenged by the applicant . ORG did not address the merits of the case .","Section DATE ( CARDINAL ) ( b ) provides that a person may be dismissed from a job when the organisation employing him or her ceases to exist or when a part of that organisation is to be incorporated into another organisation and the latter has no possibility of offering the person concerned a job in accordance with his or her contract of employment .","Pursuant to Section CARDINAL , in cases when an organisation is being liquidated , the liquidator or the ORG has to satisfy the claims of the employees of such an organisation .","Article CARDINAL ( CARDINAL ) provides that the parties are obliged to assist the court in achieving the purpose of the proceedings , by inter alia , complying with the court \u2019s instructions . LAW CARDINAL entitles the court to proceed with a case even when the parties remain inactive . When a party to the proceedings fails to appear at a hearing despite the fact that he or she has been duly summoned and when such a party has not requested that the hearing be adjourned for a serious reason , the court may proceed with the case in the absence of that party . It shall thereby have regard to the contents of the file and the evidence which has been already taken .","Pursuant to LAW ( f ) , an appeal on points of law is available when a party has been prevented , by the appellate court \u2019s conduct , from acting before the court .","In accordance with ORG case - law ( Collection of the Judicial Decisions and Opinions of ORG , No . R CARDINAL\/CARDINAL ) , a party \u2019s illness which has been duly certified by a doctor represents a serious reason within the meaning of LAW . When a party to the proceedings has asked in time that the proceedings be adjourned in such a case , the court \u2019s proceeding with the case in that party \u2019s absence is considered as preventing him or her from acting before the court within the meaning of LAW ( f ) of LAW ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59520","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2001,"docname":"CASE OF ATLAN v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["On DATE , at ORG at GPE , GPE , the applicants and another man , ORG , were convicted of illegally importing QUANTITY of cocaine ( with a street value of GBP CARDINAL ) into FAC , GPE , on DATE .","The applicants and Mr ORG had been under surveillance by officers of Her ORG and Excise for DATE prior to their arrest on DATE . On DATE the CARDINAL men were observed travelling to FAC . They did not leave the airport and almost immediately after arriving they checked in their luggage and returned to FAC . The second applicant ( henceforth , \u201c PERSON ) and Mr ORG travelled to GPE on DATE , and the first applicant ( \u201c PERSON ) went to GPE on DATE . The CARDINAL applicants returned to GPE on DATE , when PERSON was observed arriving at FAC carrying a black suitcase . On DATE he met PERSON ( who had been in GPE ) and PERSON ( coming from GPE ) at FAC .","On DATE a man named PERSON flew from GPE to GPE via ORG . He had with him a black suitcase containing QUANTITY of cocaine .","That morning , the applicants went to Mr ORG \u2019s GPE hotel . PERSON was seen carrying a black suitcase similar to PERSON . Shortly thereafter he and PERSON left the hotel by taxi for FAC , carrying the black and a grey suitcase . At the airport they boarded a flight for GPE , checking in the black suitcase in Mr ORG \u2019s name and the grey suitcase in PERSON \u2019s name . Immediately on their arrival in GPE they checked themselves on to a return flight to FAC . Mr PERSON was also on this flight , although there was no evidence of contact between Mr GPE , PERSON and Mr Terrasson .","When the aeroplane reached FAC , customs officers intercepted the luggage . They found that the CARDINAL black suitcases were indeed very similar . Mr PERSON \u2019s suitcase was to contain QUANTITY of cocaine . It was almost twice as heavy as the suitcase checked in by PERSON , which had a number of identifying tags attached to it .","NORP The officers put the CARDINAL suitcases back with the other luggage from the flight which passed for collection on to the carousel . CARDINAL of the officers saw PERSON take Mr PERSON \u2019s suitcase from the carousel and put it onto Mr ORG \u2019s trolley . Mr Terrasson took this suitcase through the green , \u201c nothing to declare \u201d , channel at customs . PERSON also collected the grey suitcase , which he took through the green channel . The other black suitcase , which had been checked on to the flight by PERSON , was not collected from the carousel .","Mr Terrasson and PERSON were arrested by customs officers . PERSON , who had not been on the flight or at the airport , was arrested DATE at the home of a relative in GPE . All CARDINAL men were interviewed and denied any knowledge of or participation in the offence . PERSON said that he was an emerald and diamond dealer in GPE for a short time on his way to GPE . He claimed not to know Mr ORG and stated that he did not know anything about his son \u2019s trip to GPE . PERSON said that he had previously travelled to GPE in connection with the purchase of some jewels , but said that he had made the most recent trip to see a girlfriend . He also denied knowing PERSON , until customs officers told him that Mr ORG \u2019s credit cards had been found in the grey suitcase . PERSON then conceded that he had had a brief encounter with Mr Terrasson in GPE . Mr ORG denied knowing either of the applicants or PERSON . He said that he had travelled alone to GPE , taking with him a black suitcase , to meet a married woman friend . He was unable to meet her because her husband was home , so he returned immediately to GPE . He claimed to have taken his own , not Mr PERSON , black suitcase from the carousel . Mr PERSON was arrested later in GPE . He said in interview that he had been instructed by a man called PERSON PERSON to bring the black suitcase , which he believed to contain antiques , from GPE to FAC and to leave it on the luggage carousel .","NORP In DATE \u201c old - style \u201d committal proceedings ( requiring the prosecution witnesses to give oral evidence ) were held at ORG . Under cross - examination by the defence counsel , the customs case - officer claimed that the only relevant evidence held by the prosecution which had not been disclosed to the defence was CARDINAL tapes of interviews with the applicants\u2019 GPE relatives , CARDINAL or CARDINAL ORG statements and some material taken from the house where PERSON had been arrested .","At the trial , which started in DATE , the prosecution case was that PERSON had organised the importation , using PERSON as the courier from GPE to GPE and GPE , and that he had instructed PERSON ORG , with PERSON as \u201c minder \u201d , to collect PERSON suitcase at FAC as if in mistake for his own . There was no forensic , photographic or video evidence to substantiate the prosecution case , which relied to a large extent on the accounts given by customs officers of what they had observed .","All CARDINAL defendants pleaded not guilty and gave evidence . The applicants maintained that PERSON worked principally as a jewel trader , but that he did not keep written records because he systematically avoided paying taxes and duties in GPE . The illegality of his jewel trading had motivated their lies during their initial interviews with customs officers . The applicants\u2019 defence centred around a dispute between PERSON and a rival jewel trader based in GPE called PERSON . They stated that PERSON had paid Mr PERSON USD MONEY in advance for diamonds , which Mr PERSON had failed to deliver to the applicants as agreed in GPE on CARDINAL occasions : QUANTITY DATE , DATE and DATE . On this last occasion , since , as before , Mr PERSON did not appear , PERSON and Mr Terrasson , who had gone together to collect the diamonds , returned immediately to FAC , where PERSON removed PERSON , not Mr Smolny \u2019s , suitcase from the carousel . The applicants contended that Mr PERSON was an informer for ORG and Excise . They claimed that , in order to avoid repaying his debt and for fear that the applicants would discredit him amongst other NORP traders following the non - delivery of the diamonds , he had arranged falsely to implicate them in the importation of cocaine . However , they had no evidence to connect PERSON to Mr PERSON \u2019s suitcase full of drugs or to substantiate the suggestion that he was a ORG and Excise informer .","Under cross - examination the customs officers involved in the case refused either to confirm or deny whether or not they had used an informer . No evidence relating to an informer or to PERSON was served on the defence or put before the judge .","In his summing up the judge summarised the defence by saying , inter alia :","\u201c ... PERSON had long since either directly or through the NORP authorities informed ORG and Excise that PERSON and PERSON and Mr ORG were preparing to smuggle cocaine to GPE , and in that way had induced the ORG and Excise here to mount a prolonged and labour - intensive observation of those CARDINAL men . On the DATE , PERSON sprang his trap . He got PERSON to send PERSON off with the suitcase ... with the drugs in it , believing it , of course , to be antiques and works of article He got PERSON to believe that it was worthwhile going for the third time to GPE for a delivery of the diamonds and he notified ORG of the itinerary of the various people which was to be foreseen from these arrangements , and that is how the incident you have heard about on TIME and indeed the observations of that day , came about . It follows from that account DATE if it is an accurate one \u2013 that Mr PERSON had some luck : firstly , ORG had a suitcase just like ORG . Possibly someone had observed ORG \u2019s suitcase and given a very exact description to ORG and they were able to get a duplicate . It would be difficult for PERSON to ask ORG and Excise about ORG \u2019s suitcase for that purpose , you may think , without revealing that he himself was engaged in setting them up . You may think that ORG and Excise in GPE would agree \u2013 you may want to consider whether they would agree to co - operate on that basis in framing an innocent group of foreigners of good character at the behest of an unknown NORP businessman like PERSON . ... Just consider in your mind what it would be like to try and induce ORG , even as an LANGUAGE subject , to co - operate with you in such a way . ... [ I]t is worth just looking at the costs to Mr PERSON if PERSON story is right ... to see what was in it for Mr PERSON . His costs : he provided initially some samples [ of diamonds ] worth CARDINAL or eight thousand ... US dollars . ... He lost the cost of sending [ his representative ] diagonally across the world and back [ with the sample ] with a bit of time in a hotel . ... He lost the cost of PERSON fare in the QUANTITY - class FAC return , and he lost the cost of Mr PERSON \u2019s GPE hotel ... . ORG [ T]he case is that he lost all those things and whatever is the cost of QUANTITY of PERCENT pure cocaine in GPE . No doubt that cost is very , very much less than it would be in GPE , but ... you may think that QUANTITY of high quality cocaine like that would cost a substantial sum , albeit nowhere near QUANTITY , in the providing country . I put those bits and pieces of information together because it is not altogether obvious when CARDINAL just runs through the story that that is what the information amounts to , but you may think it does , and it may be relevant to considering the likelihood of somebody behaving in the way Mr PERSON is said to have done . \u201d","On DATE the jury , by a majority of CARDINAL , convicted the applicants and Mr Terrasson of importing the cocaine . Mr PERSON was acquitted . On DATE , after an inquiry by the judge under LAW DATE , PERSON was sentenced to DATE imprisonment and a confiscation order of GBP CARDINAL,CARDINAL,CARDINAL.CARDINAL with a further CARDINAL years\u2019 imprisonment to be served in default of payment . PERSON and Mr PERSON both received sentences of CARDINAL years\u2019 imprisonment and PERSON was also ordered to pay a confiscation order of GBP DATE or serve a further DATE in prison .","On DATE the first applicant applied for leave to appeal against conviction . On DATE the single judge refused his application . The first applicant renewed it before ORG and the second applicant applied directly to that ORG for leave to appeal against conviction . On DATE a summary of the case was prepared by ORG .","In DATE the applicants learned from the NORP press ( ORG ) that a NORP undercover police officer , Commissioner PERSON , had written a report , called \u201c the ORG \u201d , concerning his DATE investigation into drug trafficking between GPE and LOC . In DATE the ORG solicitor obtained a copy of the report . It mentioned PERSON , describing him as CARDINAL of CARDINAL regular informers of the NORP , NORP and NORP police . He was said to have an interest in stolen jewels and a long - term involvement in the traffic from GPE to LOC of large quantities of cocaine , which he was able freely to obtain from the NORP police . In a letter dated DATE , ORG informed the applicants\u2019 solicitors that the report was the property of the LOC cantonal police and that in DATE a meeting was held at ORG headquarters in GPE concerning the PERSON investigation but that it was not possible to provide any further information in this connection . The applicants provided a copy of the report to the prosecution , which declined to confirm or deny its authenticity or the truth of its contents , and repeated that there was no undisclosed material relevant to the issues at trial .","The applicants added a further ground of appeal coupled with an application for leave to call fresh evidence . They maintained that ORG substantiated their suggestion at trial that Mr PERSON had access both to stolen jewels and cocaine and that he had an established relationship with law enforcement agencies in LOC . In their submission , the fact that the jury had not had before it evidence relating to these matters , and the fact that the judge , ignorant of the true facts , had characterised Mr PERSON in his summing up as an unknown NORP businessman , rendered their convictions unsafe .","On or about DATE the prosecution informed the defence that , contrary to earlier statements , unserved unused material did in fact exist , which the prosecution wished to place before ORG in the absence of the applicants or their lawyers . The prosecution then applied ex parte to ORG for a ruling whether it was entitled , on grounds of public interest immunity , not to disclose this material . The applicants objected to the holding of an ex parte hearing , in writing on DATE and orally before ORG on DATE , submitting inter alia that the court was a tribunal of both fact and law and could be adversely influenced by material which was wrong or inaccurate .","ORG dismissed the objections and heard the prosecution \u2019s ex parte application . It decided not to rule on the application unless or until such time that , having considered the applicants\u2019 application to introduce new evidence , it became necessary to do so .","The hearing of the applications for leave to appeal against conviction and to bring new evidence commenced on DATE . ORG indicated its view that ORG would not be admissible in evidence because , inter alia , its author could not be found to vouch for its accuracy and be cross - examined on its contents .","At the ORG request the hearing was adjourned on DATE and legal aid was granted to enable their solicitor to travel to GPE where , it was believed , PERSON was in custody awaiting trial on a charge of smuggling cocaine . However , the NORP authorities were unwilling to assist the applicants without the backing of a formal letter of request from a competent authority . The applicants therefore applied to ORG for a letter requesting the NORP authorities to give their solicitor access to the criminal proceedings there . On DATE a different constitution of ORG ruled that in principle it had jurisdiction to issue such a letter of request . On DATE , however , the originally constituted court decided that the ORG proposed request to the NORP authorities was too wide - ranging and , even if more restrictively drawn , unlikely to elicit information which would be either admissible or of assistance in the appeal . It therefore decided that it was not in the public interest to issue a letter of request , and adjourned the case until after the conclusion of Mr PERSON \u2019s trial in GPE in the Autumn of CARDINAL . In the event , however , PERSON was released on bail and his whereabouts were unknown at the time of the applicants\u2019 appeal hearing in DATE .","NORP The applicants\u2019 solicitor was able to obtain a number of documents relating to the NORP proceedings , including transcripts of interviews with Mr PERSON , arrest warrants and a list of his previous convictions . He was also able to obtain a statement from Commissioner PERSON , the NORP police officer who had prepared ORG . In his statement the Commissioner confirmed the authenticity of the report . He stated that he had been introduced to Mr PERSON by a NORP police officer and had become Mr PERSON \u2019s \u201c handler \u201d , passing information to the NORP authorities during the investigation into the applicants . According to the Commissioner \u2019s statement , his NORP \u201c contact \u201d had been a customs officer named PERSON , whom he had contacted at ORG in GPE . He believed that Mr PERSON had spoken to Mr Crago several times and had sought payment for information he had given him . The Commissioner concluded by indicating that he would be willing to appear as a witness in ORG .","On DATE the applicants added a further ground of appeal , alleging that the prosecution had failed to make full disclosure of the evidence in its possession concerning Mr PERSON , and that the lack of full disclosure rendered their convictions unsafe .","DATE before the hearing of the appeal , Commissioner ORG informed the defence lawyers that his superiors in ORG had refused him authorisation to attend . The ORG counsel suggested to ORG that this decision might have resulted from communication between ORG and Excise and the NORP authorities , but there is no evidence in support of this . Mr PERSON was called by the defence to give evidence . He denied that he had been Commissioner PERSON \u2019s contact and declined to answer any question about Mr PERSON .","On DATE , after hearing the applicants\u2019 application to admit new evidence and holding an ex parte hearing in the absence of the defence lawyers , ORG ruled that justice did not require disclosure by the ORG of the public interest immunity evidence . The applicants and their lawyers were not permitted to be present when the court delivered its judgment on disclosure .","On DATE the court dismissed the application for leave to appeal . It observed :","\u201c Little , if any , of the material [ put before ORG by the ORG counsel ] would have been admissible at the trial . That is not only because it is largely hearsay and unspecific as to events and dates , but simply because much of it is wholly irrelevant to the central issue in this case , namely whether ORG and Excise officers conspired with PERSON to \u2018 frame\u2019 the NORP . However , in considering all the information put before us , we have not been able to avoid taking a view of its effect if , and to the extent that it were admissible and credible , on the outcome of this appeal , that is , whether ... it \u2018 [ might ] afford any ground for allowing the appeal\u2019 . We have tested that by assuming for the purpose : ( CARDINAL ) that PERSON ... was charged in GPE , with others , on a charge of smuggling a large quantity of cocaine from LOC to GPE in DATE ; ( CARDINAL ) that his role in the importation of the drug to GPE is said to have been as a participating informer to the NORP police ; ( CARDINAL ) that since DATE he had been concerned in the smuggling of large quantities of cocaine from GPE to LOC ; ( CARDINAL ) that for DATE before the DATE importation of cocaine he had been an informer to various law enforcement agencies in LOC , though there is nothing to suggest that he had any contact with ORG and Excise before that importation ; ( CARDINAL ) that at the time of the DATE importation he had access to large quantities of cocaine in GPE at little or no cost ; ( CARDINAL ) that he had provided information to a NORP law enforcement agency which led to ORG and Excise observations of the NORP before the DATE importation ; and ( CARDINAL ) that , as alleged by PERSON at the trial , PERSON may have had a grudge against him arising out of some previous dealing between them . ... [ Prosecuting counsel ] suggested that the only way PERSON could have been sure of achieving such an end would have been to persuade the officers to \u2018 plant\u2019 the drug on , or falsely attribute it to , PERSON or ORG . Such a conspiracy between PERSON and the officers would have been hard for them to organise to an assured outcome . ... [ H]ow could they have organised it so that ORG had a suitcase almost identical to that of PERSON ? And what possible motive or reason could the officers have had to lend themselves to such a disgraceful enterprise whether PERSON was a known informer or not ? In the ORG \u2019s view , there is force and hard logic in those submissions . There are also a number of other questions indicating the impossibility of the Atlans\u2019 defence . Why , if they thought they were to collect diamonds from ORG , not drugs , did PERSON and ORG immediately check their luggage onto the return flight without apparently enquiring by telephone why he had not turned up or whether he had been delayed ? Why did PERSON and the CARDINAL of them make no contact in GPE and ignore each other on the plane to FAC ? Why did PERSON and ORG separate as ORG boarded a taxi at FAC with the case containing the cocaine ? Why did the NORP tell so many lies on arrest and in interview about their activities together before the flight to GPE and about the reason for it ? Why did PERSON lyingly state that he had travelled on his own on the return flight to GPE and that he did not know ORG ? Why did they later give wholly different accounts in evidence at their trial ? Why did PERSON make indirect telephone contact with someone on PERSON \u2019s telephone number in GPE on DATE of the importation ? In the ORG \u2019s view , none of its assumptions , some of which go well beyond the new information relied upon by the NORP , detracts in any way from the overwhelming strength of the prosecution case identified in those various questions or provides any material support for the possibility of a conspiracy between the ORG and Excise officers and PERSON or anyone else to \u2018 frame\u2019 the Atlans . The jury , by its verdict , clearly rejected PERSON and ORG \u2019s suggestion of it . Although PERSON did not then suggest such a conspiracy , it was his only possible line of defence , though , for the reasons we have given , a wholly unrealistic one . [ Prosecuting counsel \u2019s ] submission , which echoes considerations voiced by the judge to the jury in the summing up , provides a logical and complete answer to the complaint based on PERSON \u2019s alleged role as an informer and drug smuggler . If the jury had had before it information matching our assumptions , it might have led them to conclude that PERSON may have provided some information , direct or indirect , to ORG and Excise , but it could not have left them with any doubt as to the Atlans\u2019 knowing and deliberate involvement in the importation of cocaine into GPE . The evidence against them , which had been thoroughly and robustly tested at the trial , was overwhelming : the ORG and Excise officers\u2019 observation of their various and highly expensive international air flights , for which there was no plausible explanation or documentation suggesting any legitimate business ; the ORG observation of their movements and meetings in GPE and of the CARDINAL strange return trips to and from GPE ; their various handling of what was to become ORG \u2019s suitcase used for the switch ; their lies on arrest and in interview . All that activity pointed only to their involvement in the high value and high risk activity of drug smuggling , not some black market dealing in gems under NORP law . Whatever PERSON \u2019s possible role as an informer , the Atlans\u2019 guilty participation in cocaine smuggling is clear . ... \u201d","At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .","In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ( [ DATE ] vol . CARDINAL ORG p. CARDINAL : \u201c the Guidelines \u201d ) . The Guidelines attempted to codify the rules of disclosure and to define the prosecution \u2019s power to withhold \u201c unused material \u201d . Under paragraph CARDINAL , \u201c unused material \u201d was defined as :","\u201c ( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; ( ii ) the statements of any witnesses who are to be called to give evidence at the committal and ( if not in the bundle ) any documents referred to therein ; ( iii ) the unedited version(s ) of any edited statements or composite statement included in the committal bundles . \u201d","Under paragraph CARDINAL , any item falling within this definition was to be made available to the defence if \u201c it","According to the LAW , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was \u201c sensitive \u201d material which , because of its sensitivity , it would not be in the public interest to disclose . \u201c Sensitive material \u201d was defined as follows :","\u201c ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier \u2013 e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and\/or might create risk of domestic strife . \u201d","According to paragraph CARDINAL , \u201c in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence \u201d . The decision as to whether or not the balance in a particular case required disclosure of sensitive material was CARDINAL for the prosecution , although any doubt should be resolved in favour of disclosure . If either before or during the trial it became apparent that a duty to disclose had arisen , but that disclosure would not be in the public interest because of the sensitivity of the material , the prosecution would have to be abandoned .","Subsequent to the applicants\u2019 trial in DATE , but before the appeal proceedings in DATE , the Guidelines were superseded by the common law . In NORP v. Ward ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) ORG dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case , because :","\u201c ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . \u201d","In NORP v. PERSON , PERSON and PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence then had the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .","ORG observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had \u201c as much protection as can be given without pre - empting the issue \u201d . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure \u201c in the interests of securing fairness to the defendant \u201d . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78884","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2007,"docname":"CASE OF PUZINAS v. LITHUANIA (No. 2)","importance":3,"conclusion":"No violation of Art. 8;Not necessary to examine Art. 10 and 11","judges":"","text":["The applicant was born in DATE and lives in PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG sentenced the applicant to CARDINAL years\u2019 imprisonment for aggravated murder . He served the sentence in FAC in GPE . The applicant was released on licence on an unspecified date in DATE .","The applicant is the President of the organisation for ORG mutual assistance and support \u201c Freedom \u201d ( \u201c PERSON \u201d ) . On DATE the applicant signed a letter , on behalf of this organisation and certain other prisoners , complaining about the conditions of detention at FAC and about various allegedly unlawful acts of the prison administration . The complaint was addressed to QUANTITY persons , QUANTITY of whom were ORG officials and the CARDINAL others representatives of the private media . According to the applicant , the complaint was not sent through the prison administration , but rather through an inmate who had been released from the prison , in order to avoid censorship .","On DATE the ORG Director punished the applicant by prohibiting him from receiving a parcel during a personal visit , having found that the sending of the complaint of DATE through channels other than the prison administration had breached LAW . It was also established that ORG ( fifth addendum ) prohibited a prisoner from using a personal computer , as had been the case with this letter . The Director held that the applicant could only send the complaint to the ORG authorities , not to other organisations or persons ( LAW ) . The Director further stated that LAW prohibited complaints \u201c on behalf of other prisoners \u201d .","Upon the applicant \u2019s appeal , on DATE the ORG established that the provisions of FAC had not properly protected prisoners\u2019 rights of association . The Ombudsman did not express her opinion as to the lawfulness of the penalty .","NORP The applicant applied to the administrative courts , claiming that the penalty had been unlawful . On DATE ORG disallowed the claim for want of jurisdiction .","On DATE ORG upheld the decision on appeal . Upon the applicant \u2019s further appeal , on DATE ORG quashed the lower court decisions . It held inter alia that the prison administration was part of the Executive , and that the administrative courts were consequently competent to examine the applicant \u2019s action concerning its allegedly unlawful acts .","As the applicant subsequently submitted the claim in accordance with the requirements of LAW , his action was examined by ORG on DATE , in the presence of the applicant , transported to the hearing directly from the prison .","The court rejected the action as unsubstantiated , finding that the penalty of DATE had been lawful . It held inter alia :","\u201c Pursuant to LAW , convicted persons are guaranteed the right to submit applications , proposals and complaints to the ORG authorities , public organisations and officials . When needed , the prison administration can attach their observations [ thereto ] . However , convicted persons are prevented from applying to these institutions through channels other than the prison administration ( LAW ) . The applicant admitted that the application [ of DATE ] was sent to CARDINAL addressees illegally , through a person who had completed his sentence and had been released from the prison . The prison administration was therefore deprived of the right to submit their comments as to the issues set out in the application . \u201d","On DATE ORG rejected the applicant \u2019s appeal against the judgment , holding inter alia :","\u201c The applicant \u2019s claims that the [ relevant ] provisions of the Prison Code contradict the LAW are unsubstantiated . The applicant must acknowledge that he has been convicted and sentenced to imprisonment , and that his legal situation is different from that of persons who have not breached the law ... .","As appears from the case file , the applicant was punished [ on DATE ] not for corresponding with representatives of the media , but for a breach of the requirement under LAW to conduct [ such correspondence ] through the prison administration . The same can be said regarding the applicant \u2019s claims that , by way of the impugned penalty , he was punished for making criticisms , holding opinions or imparting information . \u201d","Article CARDINAL \u00a7 CARDINAL of FAC , as then in force , stipulated that convicted prisoners were not restricted in the amount of their outgoing letters . The third paragraph of Article CARDINAL required the prison administration to send a prisoner \u2019s letter to the addressee within DATE of receipt or its presentation by the prisoner .","Article CARDINAL \u00a7 CARDINAL of the Prison Code applicable at the material time provided that convicted prisoners could send \u201c proposals , applications and complaints to the ORG authorities , public organisations and officials . \u201d The provision also entitled the prison administration to attach its own explanations in relation to such matters .","Until DATE , LAW provided that convicted ORG correspondence with the prosecutor could not be subject to censorship ( cenz\u016bra ) . Following a legislative amendment effective since DATE , convicted ORG correspondence with the ORG authorities and ORG could not be censored .","According to the then LAW , convicted prisoners were not allowed to send \u201c collective complaints and applications \u201d or complain \u201c on behalf of other convicts \u201d .","Under LAW as then in force , convicted prisoners were not allowed to send proposals , applications and complaints addressed to the ORG authorities through channels other than the prison administration .","Rule CARDINAL.CARDINAL.CARDINAL of ORG , applicable at the material time , read as follows :","\u201c Proposals , applications and complaints [ by a convicted person ] raising questions within the competence of the prison administration shall not be sent to the addressee , but shall be examined on the spot . Having examined [ such a ] proposal , application , or complaint , a prison official shall write a report and ... include it in the convicted person \u2019s prison file . Should there be disagreement , the proposal , application or complaint shall be sent to the addressee together with the report . If there is a repeated proposal , application or complaint with the same content , the prison administration will note its previous reply in the report ... If the authority , organisation or official addressed by the convicted person is not competent to decide the questions raised , the prison administration shall advise [ the prisoner ] to re - address the proposal , application or complaint . Should [ the prisoner ] refuse to do so , the proposal , application or complaint shall be sent to the addressee . \u201d","The Prison Interim Rules ( fifth addendum ) applicable at the material time prohibited a detainee from using a computer .","The new Prison Code applicable since DATE does not allow any screening of convicted ORG correspondence with the ORG authorities and ORG rights . Under LAW , all other correspondence may be censored ( cenz\u016bruojama ) on the basis of a decision by a competent authority ( a prosecutor , prison director or court ) taken on a case - by - case basis .","In its ruling of DATE , ORG held that the domestic statutes were in breach of the LAW insofar as they allowed unjustified censorship of ORG correspondence . ORG also held that specific grounds should have been indicated for any particular instance of censorship .","Certain other domestic provisions concerning the censorship of convicted ORG correspondence have been summarised in the judgments of PERSON v. GPE ( no . PERSON , CARDINAL.CARDINAL.CARDINAL \u00a7 \u00a7 CARDINAL - CARDINAL , ECHR CARDINAL ) and PERSON ( no . CARDINAL ) v. GPE ( no . CARDINAL , CARDINAL , \u00a7 \u00a7 DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72778","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2006,"docname":"CODONA v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives near GPE , GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE .","The applicant is a gypsy . She lived with her young son and other members of her extended family in caravans on what has become known as Plot CARDINAL Woodside Caravan Park at ORG , near PERSON in GPE ( \u2018 the Site\u2019 ) . ORG ( \u2018 the Council\u2019 ) was responsible for planning control in relation to the Site and was also the responsible housing authority .","The applicant moved with other gypsies onto the Site with their caravans in DATE , in breach of planning control . Over time , the Site became divided into CARDINAL plots . ORG first learned in DATE that gypsies were occupying the Site . In DATE , the ORG served enforcement and stop notices on the occupiers of the ORG under the provisions of ORG DATE . The occupiers appealed . It is not clear from the materials submitted whether the applicant was amongst those who appealed .","Following a local public inquiry held in DATE , a planning inspector dismissed the appeals by decision letter dated DATE . He gave the occupiers DATE within which to comply with the enforcement and stop notices , so as to enable them to apply for planning permission in respect of smaller area . It appears that they took no steps to comply with either set of notices . In DATE or DATE the ORG resolved to take enforcement action by way of injunction or prosecution ; at about the same time , the occupiers , styling themselves \u201c the owners of FAC \u201d made a further planning application , essentially to continue its use , albeit with more landscaping . Again , it is not clear from the materials submitted whether the applicant was involved in the making of this application .","In DATE , shortly after the expiry of DATE period of grace given by the inspector , the ORG refused the application for planning permission . Following inquiry , the inspector dismissed the ORG appeal in DATE .","DATE , before the ORG could put into motion steps to evict the occupiers , the latter , including the applicant , made CARDINAL planning applications in respect of individual plots on the site . In DATE , the ORG refused the majority of the applications , including those of the applicant . The applicant and CARDINAL other occupiers each appealed the refusal in their individual case .","In the meantime , in DATE , the ORG issued proceedings for injunctions against named and un - named occupiers of the Site . The latter responded in DATE by seeking and obtaining permission to apply for judicial review , it appears against the decision to issue these proceedings .","In DATE and DATE an inspector held an inquiry into the CARDINAL individual appeals . In DATE , the inspector dismissed each of them . The ORG then immediately sought and obtained ( after DATE hearing , at which evidence was given ) an injunction against her and all the other occupiers of the Site to remove themselves , their caravans , all hard standings and associated materials from the Site by DATE ( \u2018 the ORG ) .","The applicant responded by making a further planning application , this time in relation to CARDINAL plots on the land . The ORG refused to determine this application because of its close similarity to the previous application . The applicant sought without success on paper to obtain permission to claim judicial review in respect of that decision . At about the same time she and other occupiers applied both to ORG to vary the terms of the injunction as to the date when they should leave the Site and also to the ORG for accommodation as homeless persons under the provisions of Part VII of LAW ( \u2018 the DATE Act\u2019 ) .","In DATE , ORG refused the ORG application for variation of the injunction and refused them permission to appeal . Very shortly thereafter the ORG exercised its power under s.CARDINAL Town and Country Planning Act DATE to clear the majority of the occupiers from the Site , but not the applicant , who with her family continued to occupy so - called LAW ( with CARDINAL caravans ) .","In DATE , ORG refused the occupiers permission to appeal the decision of ORG . The applicant did not seek to renew orally her judicial review application in respect of the ORG \u2019s refusal to entertain her application for planning permission , on the ORG agreeing not to enforce the injunction without giving her and her family DATE notice of its intention to do so and to consider and determine their homeless applications ( one made on DATE and a revised one made on DATE , the former ultimately being subsumed into the latter ) .","In that homelessness application , the applicant explained that she had an aversion to conventional \u201c bricks and mortar \u201d and that she :","\u201c ... [ did ] not wish to be given bricks and mortar . She has always lived in a caravan , has only spent TIME in a building in her life . PERSON wishes to live in a caravan and have the support of her extended family around her . \u201d","On DATE , the ORG , acting through ORG ( to which it had delegated its housing function ) ( \u2018 the Association\u2019 ) , accepted its duty under section CARDINAL of the DATE Act to provide the applicant and her family with suitable accommodation . The ORG concluded that they could only offer them \u201c bricks and mortar \u201d accommodation in a \u201c bed and breakfast establishment \u201d until it could make a final offer of accommodation acceptable to them . The letter read to the applicant read in relevant part as follows :","\u201c The ORG ... have a duty to secure suitable accommodation is available for your occupation and , in doing so , shall have regard to all the relevant circumstances relating to you and those who normally reside with you or might reasonably be expected to reside with you .","The ORG is aware that there are CARDINAL \/ CARDINAL caravans on Plot CARDINAL , GPE , ORG , the occupants of which you have included in your homelessness application . The ORG is also aware that you consider the occupants of these other vehicles as part of your immediate household and that you have requested that they be accommodated with you . In your application you have also indicated that you do not wish to live in accommodation made of bricks and mortar and that you would consider the offer of a plot \/ piece of land .","Unfortunately , as you aware from previous meetings , the ORG is unable to offer land , and can only secure accommodation from either its own housing stock or , on some occasions , property owned by ORG also operating within LOC . Further , it is also highly unlikely the ORG will be able to secure a single property large enough to accommodate all the occupants of Plot CARDINAL , FAC . However , given that each family occupying DATE resided in their own separate unit of accommodation , the ORG does not consider it unreasonable to offer an individual property for each family on Plot CARDINAL and will endeavour to ensure the properties offered are in as close proximity to each other as is reasonably possible . \u201d","The applicant sought to clarify what accommodation the ORG was intending to offer her ; they made it clear that they were intending , in the short term , to offer her bed and breakfast accommodation . Through her solicitor , the applicant sought an internal review of this decision pursuant to section CARDINAL of LAW . On DATE , the decision was upheld . The ORG wrote in the following terms :","\u201c In relation to the question about reasonableness [ sic ] of an offer of ORG or other temporary accommodation I have reached the following conclusions :","...","[ LAW and LAW ( DATE ) ] ... provide clarity of what constitutes suitable accommodation . ORG is deemed to be suitable accommodation particularly as ... the ORG have already confirmed that they will take all reasonable steps to minimise its use . Wherever reasonably practicable the offer of any temporary accommodation would be within Mid Beds and that such accommodation as would be provided would be fit for occupation and would not result in statutory overcrowding [ a reference to section CARDINAL of LAW ] .","... I note your concerns regarding a stay in bricks and mortar accommodation and would certainly not underestimate the differences [ sic ] which you would have to face having always lived in a caravan . I understand that you are concerned about living without the support of your family but again ... [ the ORG ] have advised that all practical steps would be taken to accommodate you as a close family unit .","Therefore having fully considered the details of your case and your cultural aversion to bricks and mortar as detailed ... I find that , while sympathetic to them , I must also take into consideration the general makeup and stock of the housing within the area and also the availability of suitable accommodation and this leaves us with no alternative but to offer bricks and mortar accommodation . \u201d","The applicant then applied to ORG for a statutory review pursuant to section CARDINAL of LAW . She advanced multiple grounds , but CARDINAL of them , the question of whether the accommodation offered was suitable , was considered at length , the others being found to be entirely groundless . ORG found : ( CARDINAL ) that the ORG had accepted and continued to accept that it owed a statutory duty to the applicant and her family to secure that suitable accommodation was made available to them ; and ( CARDINAL ) the applicant had a \u201c cultural \u201d aversion to living in \u201c bricks and mortar \u201d accommodation . However , the court also accepted that the ORG did not have any land available for the applicant or members of her family to pitch their caravans , such that it was impossible for it to offer what she wanted . ORG judge considered the position by reference to domestic decisions which had , in turn , considered the jurisprudence of this Court . The judge considered that he was bound by the decision in R ( Price ) v ORG [ DATE ] EWHC CARDINAL ( Admin ) ( in which the case of PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALI had itself been the subject of consideration ) . ORG in Price found that , while it was necessary that special consideration be given to the position of gypsies as a minority , it could not be argued that an offer or bricks and mortar accommodation could never constitute a suitable alternative accommodation for a Gypsy with a cultural aversion to bricks and mortar .","ORG found that \u201c to impose on ORG a duty to produce a pitch or berth for CARDINAL or CARDINAL caravans is not supported by statute or by case law , whether in this country or in LOC . \u201d It also found that , while the ORG had not expressly considered Articles CARDINAL or DATE , it had proceeded in a way compatible with their requirements . The court therefore found that , in the circumstances , the ORG \u2019s offer was an adequate discharge of its duty under section CARDINAL .","The applicant appealed to ORG , which dismissed her application for permission to appeal on DATE . ORG found that , while an empty pitch is not itself \u201c accommodation \u201d for purposes of CARDINAL , a council could , by making it available as a site to pitch a caravan , and with the agreement of the individual , be said to have discharged its duty under the section . ORG therefore considered at some length the question of whether bricks and mortar accommodation could be said to be \u201c suitable \u201d for a Gypsy with a cultural aversion to bricks and mortar . It considered the same domestic cases as had been considered by the lower court , as well as PERSON , and found there to be CARDINAL main criteria for assessing the suitability of accommodation offered :","\u201c CARDINAL ) suitability to a [ ORG [ DATE ] CARDINAL KB CARDINAL ] minimum level of suitability in the nature , location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family including the duration of their likely occupation of it ; CARDINAL ) the absolute nature of the duty which , though , coupled with an elastic concept of suitability is not elastic as to allow an offer below the ORG minimum standard ( or ... outside the margin of appreciation ) ; and CARDINAL ) special consideration , in the regulatory and decision - making in individual cases , for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view , so far as is practicable and when considered with all other circumstances , to facilitating their traditional way of life . \u201d","ORG found that , if the ORG had carried out a genuine consideration of a ORG needs ,","\u201c where land is not available , or can not readily be made available , on which a Gypsy applicant can station his or her caravan , it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind , providing that it satisfies the ORG minimum line of suitability . \u201d","ORG found that the ORG and first instance judge had correctly identified and applied the relevant principles in the applicant \u2019s case . It also considered that the first instance judge had properly considered the Article CARDINAL question in his own right .","ORG noted that the ORG was required as \u201c as a matter of relative urgency to find accommodation for an extended family occupying CARDINAL or CARDINAL caravans , who were insisting , because of their aversion to conventional housing , on being provided with an alternative site for all of their caravans on which they could continue to live together . \u201d As with the first instance court , ORG found that there was no such site available , nor was the ORG immediately able to provide long - term conventional bricks and mortar accommodation for the extended family .","It therefore concluded that , \u201c depending on the quality of bed and breakfast accommodation offered and , on the reasonable assumption that the ORG will see to it that their stay will only be for a short time , \u201d the ORG by offering bed and breakfast accommodation had discharged its duty under section CARDINAL and had acted compatibly with ORG CARDINAL and\/or CARDINAL . It added the caveat that bed and breakfast accommodation could become unsuitable either under domestic law or by reference to LAW if too long a period elapsed before the provision either of conventional housing or , if it could be found , a caravan site .","ORG refused the applicant permission to appeal on DATE on the basis that her petition did not raise an arguable point of law of general public importance which ought to be considered by the ORG at that time , given that it had already been the subject of judicial decision .","On DATE , the ORG reassessed the applicant and made a further offer of temporary accommodation . This was refused by letter dated DATE . No details of the accommodation offered at that point have been provided by the applicant . It is in particular not clear whether the ORG offered bed and breakfast or permanent settled accommodation and\/or whether it restated its view that there were no suitable caravan sites available .","On DATE ( and again on DATE ) , the ORG gave notice of its intention to enforce the injunction ; ORG dismissed an application for judicial review of the ORG \u2019s decision on DATE .","The applicant and her family vacated the Site on or before DATE . It appears that they are now on unauthorised sites , and the applicant \u2019s family is split because they have been unable to find a site where they can remain together . She contends that she ( and her family ) are now vulnerable to proceedings for possession from local authorities and private landowners , and also to the imposition of removal directions and\/or possible criminal proceedings under sections DATE , CARDINALA - E , CARDINAL and CARDINAL of ORG .","The applicant has submitted a press release from ORG Deputy Prime Minister dated DATE , from which it appears that the ORG is consulting on a revision to the directions given to local authorities with a specific view to increasing the number of authorised caravan sites available for use by travellers and gypsies .","Local authority duties to the homeless are provided in Part VII of LAW . Section CARDINAL provides , in material part :","\u201c ( CARDINAL ) This section applies where the local housing authority are satisfied that an applicant is homeless , eligible for assistance and has a priority need , and are not satisfied that he became homeless intentionally .","( CARDINAL ) Unless the authority refer the application to another local housing authority ( see section CARDINAL ) , they shall secure that accommodation is available for occupation by the applicant . \u201d","Section CARDINAL provides , again in material part ,","\u201c ( CARDINAL ) A local housing authority may discharge their housing functions under this Part only in the following ways \u2013","( a ) by securing that suitable accommodation provided by them is available ,","... \u201d","There is no definition of the word \u201c suitable \u201d in this section .","By section CARDINAL ( CARDINAL ) of LAW","\u201c A person is also homeless if he has accommodation but \u2013","...","( b ) it consists of a moveable structure , vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it . \u201d","The meaning of the word \u201c suitable \u201d within the context of sections CARDINAL and CARDINAL of the CARDINAL Act has been considered in several domestic cases . The most relevant is that of R ( Price ) v ORG [ DATE ] EWHC CARDINAL ( Admin ) , in which the main issue was whether the Gypsy in question had a cultural aversion to bricks and mortar . However , ORG had to consider as a starting point whether such an aversion of itself could prevent an offer of such accommodation from amounting to an offer of suitable accommodation . ORG , expressly considering itself to be following PERSON , accepted that it was incumbent on local authorities to give effect to the positive obligation imposed on contracting GPE under LAW to facilitate the Gypsy way of life , but found that , had the respondent council concluded that :","\u201c the claimant \u2019s cultural commitment to traditional life was so powerful as to present great difficulties in her living in conventional housing , it was not bound by duty to find her a pitch , but it would have been a significant factor in considering how far it should go to facilitate her traditional way of life . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109034","languageisocode":"ENG","respondent":"DEU","branch":"GRANDCHAMBER","date":2012,"docname":"CASE OF AXEL SPRINGER AG v. GERMANY","importance":2,"conclusion":"Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award","judges":"Christos Rozakis;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;J\u00e1n \u0160ikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Luis L\u00f3pez Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant is a public limited company whose registered office is in GPE . It publishes the ORG , a DATE newspaper with a large circulation . The present case concerns the publication by the newspaper of CARDINAL articles about X , a well - known television actor . DATE and DATE X had played the part of ORG Y , the hero of a television series broadcast on a private television channel in DATE , until DATE . By DATE , CARDINAL episodes had been broadcast , DATE of which had starred X in the role of Police Superintendent Y. The average audience rating was PERCENT ( CARDINAL viewers per episode ) .","On DATE the applicant company revealed that X had been convicted of unlawful possession of drugs . After receiving a warning from X , it undertook , on pain of an agreed penalty , to refrain from publishing information according to which QUANTITY of cocaine had been found at X \u2019s home that he had had sent to him by post from GPE and for which he had been given a prison sentence , suspended for DATE , and fined MONEY ( ORG ) .","At TIME on DATE X was arrested at the GPE beer festival ( NORP ) for possession of cocaine . In a sworn statement ( eidesstattliche ORG ) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and , if so , on what grounds . The police had confirmed that X had been arrested in the PERSON tent in possession of cocaine , without giving any further details .","According to that statement , the journalist had then contacted the public prosecutor , PERSON , from the public prosecutor \u2019s office of ORG I , in charge of relations with the press , and had asked him for information . PERSON had confirmed that PERSON had been arrested in the PERSON tent in possession of cocaine . According to PERSON , plain - clothes police officers had arrested PERSON because they had seen him making a suspicious movement with his hand when coming out of the toilets . The officers had searched him , and , having found him to be in possession of an envelope containing QUANTITY grams of cocaine , had arrested him . According to PERSON , the arrest had taken place at TIME on DATE and a criminal complaint was currently being investigated .","In its CARDINAL DATE edition , the applicant company \u2019s DATE newspaper , the ORG , published the following headline in large type on its front page :","\u201c Cocaine ! PERSON caught at the GPE beer festival . \u201d","The article , which was printed in small type , read as follows :","\u201c He came out of the gents tapping his nose suspiciously and was arrested ! At the beer festival the police caught X ( ... DATE old , PERSON on television ) , in possession of a small envelope of cocaine . See page CARDINAL for the details . \u201d","The following headline appeared on page CARDINAL of the daily :","\u201c TV star X caught in possession of cocaine . A bretzel ( PERSON ) , a beer mug [ containing a litre of beer \u2013 Ma\u00df ] and a line of coke ( PERSON ) . \u201d","The article , printed in small type , read as follows :","\u201c DATE TIME , TIME At the beer festival there was drinking , partying , swaying arm in arm . And sniffing .... In the ORG tent the TV star X ( ... DATE old , whose real name is ... ) came out of the gents tapping his nose and attracting the attention of police officers . They searched the star actor from the TV series Y ( of which , by DATE , there had been CARDINAL episodes in DATE ) . COCAINE ! X had a packet on him containing QUANTITY of coke , and was arrested . Public prosecutor PERSON from GPE told the ORG : \u201c He was making suspicious movements with his hand , tapping his nose with his fingers . This of course attracted the attention of our officers . An investigation is under way . Only a small quantity of cocaine is involved though . PERSON : \u201c Right in the middle of the festival grounds ( NORP ) \u2013 it might have been snuff tobacco , but our men have a flair for this sort of thing ... \u201d . X had already had a run - in with the law for possession of drugs . In DATE the Superintendent from the TV series had been given a DATE suspended prison sentence and DATE probation and fined ORG CARDINAL,CARDINAL . He was accused of illegally importing drugs . On a trip to GPE X had arranged for QUANTITY grams of cocaine to be sent to his address in GPE . His probation period ended DATE . The quantity of the drug found in the tent ... is negligible . What can the actor expect ? According to a legal expert questioned by ORG : \u201c Even if the probation period is over the previous conviction is recent . X may get an unsuspended prison sentence DATE up to six months \u201d . Why prison ? \u201c X has apparently not been sufficiently daunted by the suspended prison sentence \u201d . The actor has probably had to submit to a forensic head hair examination . Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken . DATE PERSON refused to comment . P.S : \u201c In every toilet cubicle in the tent ... there are signs saying : \u201c The use of drugs is liable to prosecution ! \u201d","The article was accompanied by CARDINAL photos of X , CARDINAL on the first page and the other CARDINAL on page CARDINAL .","On DATE , during the morning , press agencies and other newspapers and magazines reported on ORG arrest , referring in part to the article published in the ORG . DATE the prosecutor PERSON confirmed the facts reported in the ORG to other written media and television channels , CARDINAL of which ( \u201c RTL \u201d and \u201c proCARDINAL \u201d ) broadcast the same reports that TIME . During CARDINAL of the broadcasts the prosecutor PERSON made the following statement :","\u201c The police officers saw X making a suspicious movement with his hand while coming out of the men \u2019s toilets and concluded that he had taken something . They searched him and found an envelope containing QUANTITY of cocaine . He had already been convicted of importing drugs and given a suspended prison sentence . He is not a first offender ( Erstt\u00e4ter ) . He should have known that he should not touch drugs . He can now expect a further prison sentence , even if the quantity found on him is insignificant . \u201d","In its DATE edition the ORG printed the following headline on its inside pages : \u201c TV series FAC confesses in court to having taken cocaine . He is fined MONEY ! \u201d","The article read as follows :","\u201c GPE \u2013 On TV he plays a superintendent who puts criminals behind bars . DATE , it was the turn of the actor X ( ... DATE old , ... ) to be hauled up in front of the court and confess ! X , who had to explain himself to ORG [ ORG ] on charges of \u201c unlawful possession of drugs \u201d , has confessed to taking drugs ! X \u2019s counsel ... stated : \u201c We fully acknowledge the offence with which we have been charged in the indictment \u201d . X confessed to the court : \u201c I have occasionally smoked cannabis and taken cocaine from time to time . This has not made me happy . It had not turned into a habit but is just something that I have done from time to time \u201d . Question from the court ... : \u201c Are you currently taking drugs ? \u201d Reply from X : \u201c No , I smoke cigarettes . \u201d The sentence : a fine of ORG CARDINAL . The court : \u201c The accused \u2019s full confession has counted in his favour . \u201d On TV X continues investigating on the side of law and order . In GPE he is in front of the cameras for the television series ... which should be starting on the second channel in the DATE . \u201d","The article was accompanied by a photo of X.","NORP Immediately after the articles appeared , X. instituted proceedings against the applicant company in ORG . The applicant company attached to its initial reply the statement by its journalist ( see paragraphs CARDINAL above ) and numerous press articles about X , including a number of interviews given by him , to ORG magazine among others , together with photos of him .","On DATE ORG imposed an injunction on publication of the article , following a request lodged by X on DATE . In a judgment of CARDINAL DATE it confirmed the injunction . That judgment was upheld by ORG on DATE .","On DATE ORG also imposed an injunction on publication of the photos illustrating the article . It confirmed that decision in a judgment of DATE . The applicant company did not challenge that judgment , which became final .","On DATE the NORP ORG prohibited any further publication of almost the entire first article , on pain of an agreed penalty , under Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL ( by analogy ) of LAW ( see paragraph CARDINAL below ) , read in the light of the right to protection of personality rights ( Allgemeines Pers\u00f6nlichkeitsrecht ) . It ordered the applicant company to pay ORG CARDINAL as a penalty under the agreement and to reimburse the procedural expenses ( EUR CARDINAL , plus statutory interest accrued from DATE ) .","According to ORG , the article in question , which mentioned ORG name and was accompanied by photos of him , amounted to a serious interference with his right to the protection of his personality rights ; the disclosure of his criminal conduct had , so to speak , resulted in his being pilloried and discredited in the eyes of the public . The court found that , despite those negative effects , reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report . Any interference with a criminal \u2019s private sphere was limited , however , by the proportionality principle , which involved a balancing exercise between the competing interests . The court held that in the present case the right to protection of X \u2019s personality rights prevailed over the public \u2019s interest in being informed , even if the truth of the facts related by the daily had not been disputed . Neither the nature of the crime committed , nor the person of X , nor any other circumstances justified publication of the article at issue .","The court observed that whilst a drugs - related offence was not a petty crime , particularly as in the present case it had been cocaine , which was a hard drug , X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking . The type of offence involved was of medium , or even minor , seriousness , was a very common one and there was no particular public interest in knowing about it . The court added that , unlike serious crimes ( such as spectacular robberies , or murders ) , there were no particular circumstances distinguishing the offence in question from ordinary crimes , even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles . Furthermore , the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one . The report had focussed more on X \u2019s person than on the offence , which would probably never have been reported in the press if it had been committed by a person unknown to the public . Similarly , the court pointed out , whilst ORG \u2019s previous conviction for a similar offence was such as to increase the public \u2019s interest , it was his only previous conviction and , moreover , dated back DATE .","NORP The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y , a character in a relatively popular television series , but not in the actual person of the actor playing the part . There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information . The interest in X did not , in any event , go beyond the interest habitually manifested by the public in leading actors in NORP television series .","The court observed that the applicant company had published many articles about X over a period of DATE and particularly over DATE . The vast majority of these publications had , however , merely mentioned X \u2019s name \u2013 often without a photo \u2013 among the names of celebrities invited to various events . Whilst it was undisputed that X had taken part in over CARDINAL national and international cinematographic and televised productions , that did not convey much of an idea of his public importance . Indeed , actors could have starred in CARDINAL of television series and still remain little known to the public . There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye .","X had , to an extent , sought to attract the public \u2019s attention by giving interviews to certain magazines CARDINAL . He therefore had to be more tolerant towards reports published about him than other wellknown figures who avoided the limelight . According to the court , X had not , however , courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights .","ORG conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role . However , that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character . The actor merely donned the persona of a superintendent , just as he could don that of any other character , without thereby adopting the conduct of the character in question in his daily life . The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported . In the court \u2019s view , viewers could distinguish between the actor and his role , even where the actor was well known essentially for playing CARDINAL particular character .","ORG found , further , that X had not sought to portray himself as an emblem of moral virtue ; neither had he adopted a stand on matters relating to drug abuse . The interviews reported by the applicant company contained no comment by X on the subject . In issue no . CARDINAL\/CARDINAL of the magazine PERSON , X had stated , in passing , that he did not have any alcohol in the house and that he had become a big tea connaisseur . In the court \u2019s view , the fact that X had briefly remarked on his previous conviction in CARDINAL interviews with magazines in DATE did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field . That subject had been only marginally covered in the interview , which had mainly concerned the actor \u2019s professional prospects and his difficulties in his relationships .","Observing that when balancing the competing interests , the decisive criteria were how well known X was and the seriousness of the offence with which he was charged , ORG found that the case concerned an actor who was not exceptionally well known and was accused of an offence which , while not insignificant , was not particularly spectacular and could be regarded as fairly common in the entertainment world . The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne , whereas the information published amounted to a serious ( gravierend ) interference with PERSON \u2019s right to the protection of his personality rights .","ORG found , lastly , that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests . Admittedly , the press officer from the public prosecutor \u2019s office at ORG I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them ; nor was there any doubt that the public prosecutor \u2019s office could be regarded as a \u201c privileged source \u201d ( privilegierte ORG ) of information that did not , as a general rule , require verification as to the truth of its content . Moreover , CARDINAL press agencies had disclosed similar details . However , even assuming that it had received all the information before publishing the article in question , the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X \u2019s right to protection of his personality rights . In the court \u2019s opinion , the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press .","The court found that it could be presumed that institutions providing a public service , and in particular the public prosecutor \u2019s office and the police , made every effort , in accordance with the principle of neutrality , not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned . However , such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media .","In the instant case the applicant company was actually better placed than a member of the GPE public prosecutor \u2019s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest . On that point the court considered that account also had to be taken of the context in which the information was published : the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person \u2019s name was justified or not . Accordingly , publishers could not generally consider that the disclosure of a person \u2019s identity by a privileged source would make any kind of report on the person concerned legal , without having first balanced the interests at stake .","ORG pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities . Accordingly , in the case of X , the question arose as to whether it was appropriate for the public prosecutor \u2019s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started . The court concluded that the applicant company could not argue that it had relied on the disclosure of ORG name by the public prosecutor \u2019s office .","On DATE ORG dismissed an appeal by the applicant company , but reduced the amount of the agreed penalty to ORG CARDINAL . It upheld the conclusions of ORG , pointing out that the disclosure of a suspect \u2019s name when reporting on an offence constituted , as a general rule , a serious infringement of the right to the protection of personality rights , even if it was a drug offence of medium or minor seriousness . In X \u2019s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and , in particular , of obtaining a role in an advertisement or in television series aimed at a young audience .","ORG reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights , as established by ORG ( see paragraph CARDINAL below ) . It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known . In the court \u2019s opinion , the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public . As PERSON had not taken cocaine in the tent in front of everyone , his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well - known television star .","ORG acknowledged that the public had a particular interest in being informed and entertained because X was a well - known figure and had played the part of a police superintendent over a long period of time ( l\u00e4ngerer PERSON ) . However , even if X played that role , this did not mean that he had himself necessarily become an idol or role model as a law - enforcement officer , which could have increased the public \u2019s interest in the question whether in his private life he actually behaved like his character . It was clear that the actor X could not be identified with the fictitious character of GPE Y that he played . The fact that X had his fan clubs and had made public appearances as the actor who played the part of GPE did not alter that finding . It could well be that X \u2019s appearance , his manner of presenting himself , and the relaxed attitude portrayed in his films appealed to others , particularly a young audience . That did not mean , though , that others saw in him a moral role model whose image should be corrected by the newspaper report in question .","The publications submitted by the applicant company were indeed evidence that X was hugely popular , but did not support the contention that he had used confessions about his private life to attract the public \u2019s attention . Nor was the newspaper report justifiable on the ground that X had been arrested in public , in a tent , because the drug had actually been consumed in the men \u2019s toilets , that is , in a place that fell within the protected private sphere , and out of public view . Lastly , even if it were to be established that ORG \u2019s arrest was a matter of substantial public interest , the same could not be said of the description and characterisation of the offence committed out of public view .","Lastly , while upholding the conclusions of ORG regarding the role of the GPE public prosecutor \u2019s office , ORG stated that the applicant company \u2019s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor \u2019s office had led it to believe that the report was lawful . The illegal disclosure by the public prosecutor \u2019s office did not , however , make publication by the applicant company legal . ORG accordingly reduced the agreed penalty to ORG CARDINAL . It refused leave to appeal on points of law because its judgment did not conflict with the case - law of ORG .","On DATE ORG refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case - law .","On DATE ORG dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions ( Anh\u00f6rungsr\u00fcge ) . It stated that when balancing the public \u2019s interest in being informed about public criminal proceedings against an interference with the defendant \u2019s private sphere , ORG in accordance with the criteria established in its case - law . There was no evidence that the relevant criteria for the balancing exercise had been disregarded . ORG stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard .","On DATE ORG granted an application by X for an injunction against any further publication of the second article .","By a judgment of CARDINAL DATE , ORG granted X \u2019s application in the main proceedings , ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay ORG in costs , plus statutory interest accrued from DATE . It based its decision on essentially the same grounds as those set out in its judgment of CARDINAL DATE ( see paragraphs DATE above ) . It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of ORG of DATE ( see paragraph CARDINAL below ) in that the person concerned in that case , Prince PERSON DATE PERSON , was much more widely known than X , so the press had been entitled to report on the substantial penalty imposed in that case .","On DATE ORG dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of DATE ( see paragraphs CARDINAL above ) . On the subject of the relevant criteria for weighing the conflicting interests , it stated that , according to the judgment of ORG of DATE ( see paragraph CARDINAL below ) , the fact that a person was a prominent figure or CARDINAL known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct . In the present case , the public \u2019s interest in being informed and entertained , which derived from the fact that X was a well - known figure and starred as a superintendent in a television series , was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose ( informationelle PERSON ) .","The applicant company \u2019s reliance on the high audience rating of the television series Y. did not , in ORG opinion , prove that X. had served as a role model or a counter model . If a role model existed for CARDINAL of viewers , the role model in question was the character of the superintendent . ORG reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view , in the men \u2019s toilets . The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene , but it had not been established that other persons present in the tent had noticed that X had taken cocaine .","ORG added that whilst the fact that the \u201c quality press \u201d had reported the case might indicate that there was a not insignificant ( nicht geringes ) interest in reporting it , that was not a basis on which to conclude that the interference with X \u2019s right to the protection of his personality rights had been lawful .","ORG refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case - law of ORG , in particular the latter \u2019s judgment of DATE ( see paragraph CARDINAL below ) .","On DATE ORG refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case - law . On DATE it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions .","On DATE a CARDINAL - judge panel of ORG declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings . It stated that it was not giving reasons for its decision .","On DATE and DATE ORG ordered the applicant company to pay X CARDINAL penalty payments of ORG CARDINAL,CARDINAL , each one for having breached the order of DATE ( see paragraph CARDINAL above ) . The court criticised the applicant company for , inter alia , publishing in DATE of the DATE newspaper PERSON and on the newspaper \u2019s internet page ( welt.de ) on CARDINAL DATE the following statement by CARDINAL of its editors :","\u201c Accordingly , we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine , even though he was a very well - known recidivist and the offence was committed at the beer festival in GPE . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW ( ORG ) provides that anyone who , intentionally or negligently , unlawfully infringes another \u2019s right to life , physical integrity , health , freedom , property or other similar right , shall be liable to make compensation for the resulting damage .","In accordance with LAW , where another \u2019s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference . If there are reasonable fears that further damage will be inflicted , the owner may seek an injunction .","In its judgment of DATE ( no . Vi ZR CARDINAL ) ORG reiterated its established case - law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect . The facts of the case were a fine and a prohibition on driving imposed by the NORP courts for speeding on a motorway ( CARDINAL instead of QUANTITY ) on a person known to the public . ORG found , firstly , that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations , and , secondly , that the offence had put other motorists at considerable risk . Moreover , both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well - known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned . ORG pointed out that the ORG \u2019s judgment in the case of PERSON v. GPE of DATE ( no . CARDINAL , ORG CARDINALVI ) allowed of no other conclusion . The articles ( and photos ) in that case had concerned only scenes from PERSON daily life , and had aimed merely to satisfy the curiosity of a particular readership regarding her private life .","In a decision of CARDINAL DATE ( no . CARDINAL BvR CARDINAL\/CARDINAL ) , a CARDINAL - judge panel of ORG decided not to entertain a constitutional appeal lodged against the judgment of ORG and upheld the latter \u2019s findings .","The relevant passages of Recommendation ( Rec(CARDINAL)CARDINAL of ORG to member states on the provision of information through the media in relation to criminal proceedings , adopted on DATE at the NORP meeting of ORG , read as PERSON","\u201c ...","Recalling that the media have the right to inform the public due to the right of the public to receive information , including information on matters of public concern , under LAW , and that they have a professional duty to do so ;","Recalling that the rights to presumption of innocence , to a fair trial and to respect for private and family life under Articles CARDINAL and CARDINAL of the Convention constitute fundamental requirements which must be respected in any NORP society ;","Stressing the importance of media reporting in informing the public on criminal proceedings , making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system ;","Considering the possibly conflicting interests protected by Articles CARDINAL , CARDINAL and DATE of the LAW and the necessity to balance these rights in view of the facts of every individual case , with due regard to the supervisory role of ORG in ensuring the observance of the commitments under the Convention ;","...","Recommends , while acknowledging the diversity of national legal systems concerning criminal procedure , that the governments of member states :","take or reinforce , as the case may be , all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation , within the limits of their respective constitutional provisions ,","...","Appendix to Recommendation Rec(CARDINAL)CARDINAL","Principles concerning the provision of information through the media in relation to criminal proceedings","ORG of the public via the media","The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .","Principle CARDINAL - Presumption of innocence","Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial .","Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .","Principle CARDINAL - Accuracy of information","ORG authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions . In the latter case , this should be clearly indicated to the media .","ORG to information","When journalists have lawfully obtained information in the context of on - going criminal proceedings from judicial authorities or police services , those authorities and services should make available such information , without discrimination , to all journalists who make or have made the same request .","( ... )","Principle CARDINAL - Protection of privacy in the context of on - going criminal proceedings","The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . \u201d","The relevant passages of this resolution , adopted by ORG on DATE , read as follows:-","\u201c ...","The ORG is aware that personal privacy is often invaded , even in countries with specific legislation to protect it , as people \u2019s private lives have become a highly lucrative commodity for certain sectors of the media . The victims are essentially public figures , since details of their private lives serve as a stimulus to sales . At the same time , public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy .","Public figures are persons holding public office and\/or using public resources and , more broadly speaking , all those who play a role in public life , whether in politics , the economy , the arts , the social sphere , sport or in any other domain .","It is often in the name of a CARDINAL - sided interpretation of the right to freedom of expression , which is guaranteed in LAW , that the media invade people \u2019s privacy , claiming that their readers are entitled to know everything about public figures .","Certain facts relating to the private lives of public figures , particularly politicians , may indeed be of interest to citizens , and it may therefore be legitimate for readers , who are also voters , to be informed of those facts .","It is therefore necessary to find a way of balancing the exercise of CARDINAL fundamental rights , both of which are guaranteed by ORG : the right to respect for one \u2019s private life and the right to freedom of expression .","The ORG reaffirms the importance of every person \u2019s right to privacy , and of the right to freedom of expression , as fundamental to a NORP society . These rights are neither absolute nor in any hierarchical order , since they are of equal value .","NORP However , the ORG points out that the right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media .","The ORG believes that , since all member states have now ratified LAW , and since many systems of national legislation comprise provisions guaranteeing this protection , there is no need to propose that a new convention guaranteeing the right to privacy should be adopted . ... \u201d"],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61542","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2003,"docname":"CASE OF SESZTAKOV v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under Art. 6-1 with regard to fairness, Art. 8 and P1-1","judges":"Gaukur J\u00f6rundsson","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant 's wife requested ORG to hold a preliminary hearing with a view to instituting divorce proceedings . In turn , on DATE the applicant brought an action before the ORG claiming maintenance for the couple 's son , who was at the time in the applicant 's care . ORG held hearings on the maintenance claim on DATE and DATE . On DATE the applicant 's wife formally filed for divorce . The divorce proceedings were subsequently joined to the claim for maintenance .","In the joined proceedings , hearings took place on DATE , DATE , CARDINAL DATE and DATE , DATE and DATE .","On DATE ORG pronounced , in a partial decision , the couple 's divorce . In line with the parties ' agreement , it granted the mother custody of their son . The court ordered the applicant to pay maintenance , regulated his right of access to the boy and ordered the parties to share the use of their flat which was in common ownership . The court relied on the testimonies of numerous witnesses , including a social worker , the applicant 's CARDINAL step - children born out of the mother 's previous marriage , and the couple 's son .","On the applicant 's appeal of CARDINAL DATE , ORG held a hearing on DATE . At a hearing on DATE ORG allowed the applicant 's appeal and amended ORG decision in the part concerning the amount of maintenance and the details of his access rights .","On DATE the proceedings were resumed before ORG in respect of the division of the matrimonial property . A hearing was held on DATE .","A further hearing took place on DATE . On the latter date ORG decided to obtain various expert opinions .","On DATE and DATE , respectively , property and valuation experts submitted their opinions .","At a hearing on DATE ORG appointed a motor - vehicle expert to prepare an opinion . On DATE the expert was urged to submit his opinion . On DATE the expert informed the court that the applicant could not be located at the address notified to him . On DATE the expert was requested to submit an opinion as soon as possible . On DATE the expert submitted his opinion .","Further hearings were held on DATE , CARDINAL DATE and DATE . Meanwhile , on DATE the applicant requested further expert evidence to be taken . Although it experienced difficulties in finding an expert jeweller , ORG finally appointed CARDINAL on CARDINAL DATE and requested the parties to contact him . On DATE the expert submitted his opinion .","On DATE an expert psychologist submitted his opinion . A hearing scheduled for DATE was adjourned at the applicant 's request .","The next hearing took place on DATE . ORG ordered the property expert to complete his opinion of DATE , taking into account any possible changes which might have occurred in the meantime . On DATE ORG requested the expert to proceed as a matter of urgency . On DATE the expert submitted his opinion , which was based on an on - site inspection of the property .","Further hearings took place on DATE and DATE . On the latter date both the applicant and his representative failed to appear before the court . Meanwhile , ORG made enquiries with the parties ' bank as regards the mortgage situation of their flat . On DATE the court requested the parties to waive their rights to secrecy in respect of their bank details . The waivers were sent to the bank on DATE . On DATE ORG made a further enquiry with the bank as regards payments transferred from the parties ' bank account to cover housing expenses . On DATE ORG ordered the applicant to submit his waiver in the form required by the bank . The bank submitted the requested banking details on DATE .","At the hearings of DATE and CARDINAL DATE several witnesses were heard on the use of the parties ' flat . On DATE ORG carried out an inspection of the flat .","On DATE ORG ruled on the division of the matrimonial property . On DATE , respectively , the applicant and the defendant appealed .","The Veszpr\u00e9m County Regional Court held hearings on DATE , DATE . During this period the parties were involved in negotiations aimed at reaching an agreement on the sale of their flat . On the parties ' joint request of DATE , ORG discontinued the proceedings on DATE and annulled the decision of CARDINAL DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99941","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2010,"docname":"KEMEROV v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","On DATE the applicant , who had consumed alcohol , listened to loud music in his flat , disturbing his neighbours . At TIME , a neighbour asked him to cease the disturbance . The applicant apparently lowered the sound only for a while . As the disturbance continued , TIME and TIME the neighbour made several calls to the police seeking assistance .","Police officers P. and PERSON were dispatched to the address . From their statements it appears that they made CARDINAL visits , the second one being at TIME","At TIME , having heard loud music emanating from the applicant 's apartment , the police officers rang the doorbell and shouted \u201c Police ! Open the door ! \u201d . In reply , the applicant required to see their identity documents and a warrant authorising their entry into his apartment . The police officers insisted to be let in . According to the applicant , they started hitting the door . Fearing that they might break in , the applicant eventually opened .","According to the applicant , upon entering the police officers battered him violently .","According to the police officers , the applicant threatened them with a knife which necessitated the use of physical force against him .","The police officers eventually handcuffed the applicant and took him to the police station . His name was entered in the detained persons ' register , with a note that he had \u201c assaulted the patrol with a knife and resisted [ orders ] \u201d .","He was released TIME , at TIME on DATE .","Later on DATE the applicant had PERSON photographs of his body taken which confirmed that he did not have fractures .","Police officers P. and PERSON drew up reports on offences punishable in summary administrative proceedings ( \u0430\u043a\u0442 \u0437\u0430 \u0430\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0442\u0438\u0432\u043d\u043e \u043d\u0430\u0440\u0443\u0448\u0435\u043d\u0438\u0435 ) , dated DATE and duly registered in the police reports register . According to the reports , a knife had been seized from the applicant at TIME DATE and the applicant had refused to comply with a police order to cease a disturbance to the public and had thus committed violations of the relevant regulations .","According to the applicant , he never received copies of the above mentioned reports . In his view , it was possible that some of the documents allegedly documenting an assault with a knife might have been created later and backdated .","On DATE the applicant was examined by a forensic medical doctor who found numerous contusions , haematomas and scars on the applicant 's head , chest , abdomen area and on his limbs . There were CARDINAL bruises on the applicant 's head , CARDINAL on his back , more on his arms and legs . The medical certificate stated , inter alia , that all injuries had been inflicted by a blunt object . It was possible that they were inflicted in the manner and at the time indicated by the applicant .","The applicant was eventually fined by the municipal authorities for causing a night disturbance .","On DATE the applicant submitted a complaint to ORG ( \u043e\u043a\u0440\u044a\u0436\u043d\u0430 \u0432\u043e\u0435\u043d\u043d\u0430 \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 ) stating that he had been ill - treated by police officers . He enclosed a medical certificate . A preliminary inquiry was opened .","On DATE a prosecutor instructed local police in GPE to investigate the complaints .","On DATE police officers PERSON submitted written statements to their superior . They maintained that the applicant had assaulted them with a kitchen knife . PERSON stated that he had hit the applicant several times in his chest and then used a special technique to retrieve the knife as the applicant had been trying to stab him in his right hand .","On DATE the police reported to the prosecutor , summarising the police officers ' version of the facts . He added that in the absence of witnesses , it was not possible to draw up reports on offences punishable in summary administrative proceedings under LAW .","It appears that the prosecutor did not undertake any other steps in DATE .","On DATE the applicant complained of the delay to the higher prosecutor .","On DATE the applicant 's lawyer requested the examination of CARDINAL witnesses \u2013 the applicant 's brother who had taken him from the police station upon his release and CARDINAL of his neighbours .","On CARDINAL DATE the applicant and the witnesses were heard by a police officer and given the opportunity to submit written statements . CARDINAL of the applicant 's neighbours stated that in TIME of DATE he had heard someone shouting for help and had seen , at the opened door of the applicant 's apartment , a man delivering blows to someone inside . He had then seen the applicant being escorted by CARDINAL men into a police car . Another witness gave evidence from which it transpired that the applicant 's front door had not been forced by the police , as initially maintained by him .","On DATE the applicant 's lawyer complained of the delay in the inquiry .","On DATE the competent prosecutor at ORG terminated the inquiry and refused to institute criminal proceedings against the police officers . He summarised the facts as presented by the police officers involved and then stated the blows administered on the applicant during the incident were justified under the relevant provisions which allowed the use of force and handcuffs to put an end to a rampant behaviour or other serious violation of public order .","A copy of the decision was sent to the applicant . The accompanying letter advised the applicant that he had the right to appeal to ORG ( \u0432\u043e\u0435\u043d\u043d\u043e-\u0430\u043f\u0435\u043b\u0430\u0442\u0438\u0432\u043d\u0430 \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 ) in GPE . The applicant did not appeal .","In the meantime , on DATE the applicant submitted an application to the former ORG alleging , inter alia , violations of Articles CARDINAL , CARDINAL and CARDINAL of the LAW in relation to the events of DATE .","By final decision of DATE the ORG , to which the competence to examine the application was transferred by virtue of LAW No . CARDINAL to the LAW , declared the application inadmissible for failure to exhaust domestic remedies , since the applicant had failed to appeal against the regional prosecutors ' decision of DATE ( see PERSON v. GPE ( dec . ) , no . PERSON , DATE ) .","On DATE the applicant filed with ORG an appeal against the decision of DATE of ORG .","On DATE ORG dismissed the appeal , upholding the decision of DATE .","The applicant appealed to ORG .","On DATE a prosecutor from that service dismissed the appeal as the prosecution of the police officers concerned was time - barred .","He commented on the substance of the complaints , noting that the applicant 's allegation that the police had forced his front door had been contradicted by witness evidence and also finding that the applicant 's injuries corresponded to the police officers ' version of the events . The prosecutor also found that in any event the prosecution of the police officers concerned was time - barred , which excluded any possibility of pursuing the matter .","Under LAW read in conjunction with Articles CARDINAL - CARDINAL of LAW , as in force at the relevant time , the prosecution of a police officer accused of ill - treatment which had not resulted in serious permanent or life - threatening injury was precluded after the expiry of DATE , depending on whether the ill - treatment could be characterised as having affected the victim 's health or had only caused pain ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57950","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1995,"docname":"CASE OF ACQUAVIVA v. FRANCE","importance":3,"conclusion":"No violation of Art. 6-1","judges":"C. Russo","text":["ORG On DATE at TIME the officers of the PERSON brigade of gendarmerie received a telephone call from PERSON informing them that an attack had just been carried out at her and her husband 's farm at ORG ) . The perpetrator of the attack had been fatally wounded .","When the officers arrived at the scene of the incident , they found the body of a man , identified at the morgue as being that of PERSON , the applicants ' son and brother . The deceased had been a militant nationalist on the run , whose photograph had appeared on police posters offering a reward for information leading to his arrest .","NORP was immediately placed in police custody , but was released at CARDINAL TIME on CARDINAL DATE . His wife was also questioned . A post - mortem report was drawn up on CARDINAL DATE . The following day the ORG public prosecutor sought ballistic and toxicological reports , which were submitted on DATE and CARDINAL DATE .","ORG In CARDINAL communiqu\u00e9s issued DATE after the killing , ORG ( PERSON ) - an organisation that had been dissolved in DATE - described the deceased as a \" brother in arms \" and a \" martyr for the nationalist cause \" , deliberately assassinated by R.","On DATE Mr and PERSON left Corsica under false identities as the local police commander ( capitaine de gendarmerie ) had advised them that he could not guarantee their safety . The furniture disappeared from the R.s ' farm on DATE .","ORG On DATE the police investigation concluded that there was sufficient serious and consistent evidence to justify charging NORP with fatal wounding , but that he had apparently been acting in self - defence .","On DATE the deceased 's parents laid a complaint against NORP for intentional homicide and filed an application to join the proceedings as civil parties . They wished to discover the circumstances of their son 's death and requested a reconstruction of the events ; they did not seek damages . On DATE they lodged security for costs of MONEY ( ORG ) fixed by an order of DATE .","ORG On DATE the R.s ' farm , which had been under police surveillance , was partly destroyed by a bomb attack . The investigation opened into this incident was closed on DATE under the amnesty of DATE .","ORG On DATE an investigation was opened into an offence of fatal wounding by persons unknown . On the same day Judge PERSON was assigned to the investigation and the prosecutor 's office requested an inquiry and a reconstruction of the events .","ORG The applicants were interviewed on DATE . On DATE the prosecutor 's office called for evidence to be taken from the doctor who had signed the death certificate and the senior officer of the gendarmerie . These CARDINAL persons were questioned on DATE .","The civil parties were summoned to appear on DATE , but did not do so because their lawyer was unable to be present .","On DATE the investigating judge sought the opinion of the doctors who had carried out the post - mortem examination . They submitted their report on DATE . On DATE evidence was taken from the police officers concerned , as witnesses .","ORG On DATE the R.s ' farm - which had been purchased in DATE by ORG - was placed under seal .","ORG On DATE the applicants were interviewed on the subject of the medical experts ' report . They maintained their complaint and continued to stress the need for a reconstruction .","On DATE NORP was summoned to give evidence , but he requested the judge to excuse him and did not appear on DATE for the interview .","ORG In additional submissions of CARDINAL DATE the public prosecutor called for fresh expert reports , in particular a ballistic report . DATE the civil parties also sought further investigative measures .","On DATE the investigating judge visited FAC , near GPE , to question NORP as a \" witness assisted by a lawyer \" ( temoin assist\u00e9 ) and his wife as an ordinary witness .","ORG On DATE the judge rejected the applications for investigative measures submitted by the prosecutor 's office and civil parties . The prosecutor 's office and the applicants challenged his decision .","PERSON , who had been appointed to another post , was replaced on DATE by Judge PERSON .","ORG The ORG public prosecutor and the applicants appealed to ORG of ORG , which ruled , in a preliminary decision of CARDINAL DATE , that the refusal to carry out the investigative measures requested adversely affected the civil parties ' rights .","In accordance with the principal public prosecutor 's submissions , ORG quashed Judge PERSON 's decision and ordered further investigative measures including a reconstruction of the events at the scene of the incident in the presence of NORP and CARDINAL ballistic experts . It assigned the task of carrying out the reconstruction to Judge PERSON and ordered that the costs of the expert reports be advanced out of public funds .","ORG On DATE the prosecutor 's office lodged further submissions calling for PERSON and PERSON to be brought to the scene of the incident for the purposes of the reconstruction . NORP was interviewed as a \" witness assisted by a lawyer \" in GPE on DATE .","ORG On DATE the gendarmerie found that the seals put on the farm had been broken and that an item of evidence , the front door , which bore bullet marks , had been stolen . In a report submitted DATE the senior police officer indicated that this had made it impossible to carry out the reconstruction under satisfactory conditions , in view in particular of the fact that there was no furniture in the house .","The investigating judge visited the scene on DATE . He questioned NORP in GPE on DATE .","ORG On DATE the ORG public prosecutor 's office called for the opening of an investigation in respect of the destruction of the seals and the theft of the door by persons unknown . This investigation was subsequently terminated by a decision finding that there was no case to answer .","ORG On DATE the investigating judge ordered an inquiry into the removal of the furniture and the disappearance of the door . He visited the site on DATE and interviewed the applicants the following day in connection with the preparations for the reconstruction .","In the course of this inquiry the judge questioned the police officers concerned on DATE , PERSON and PERSON son on DATE and on DATE the prosecutor who had been called out on TIME of the killing . On DATE he gave instructions for evidence to be taken .","ORG The former public prosecutor of ORG told him on DATE that it had been planned from the beginning of the investigation to organise a reconstruction .","The reconstruction , which had been scheduled for DATE and organised with extensive security precautions , did not take place because of the absence of NORP and the police officer who had conducted the inquiry and the applicants ' refusal to attend in such circumstances .","ORG The following day the applicants requested that coercive measures be taken in regard to Mr and PERSON","On DATE the prosecutor 's office called for the transmission of the documents to ORG for a ruling on the new applications and a decision on the further procedure .","ORG On DATE Judge PERSON forwarded the file to ORG , which , on DATE , ordered that it be communicated to the principal public prosecutor . On CARDINAL DATE the latter called for a reconstruction of the events .","ORG On DATE the applicants laid a complaint concerning the destruction of the seals put on the R.s ' house and the theft of the front door ; they also applied to join the proceedings as civil parties . This complaint for theft , concealment and destruction of evidence was declared inadmissible on technical grounds .","ORG On DATE ORG of ORG held a hearing . At the opening of the hearing the applicants protested at the presence in the courtroom of the lawyers of NORP , a \" witness assisted by a lawyer \" . By an interlocutory decision of DATE , the court allowed the objection and reserved judgment on the remaining issues until DATE .","ORG NORP appealed on points of law to ORG and requested an expedited hearing of his appeal .","ORG decided on DATE to stay the proceedings pending the decision of ORG . The same day the President of the ORG instructed the investigating judge not to take any new steps until further notice .","ORG On an application by the public prosecutor , and then by ORG , ORG , by a decision of DATE , quashed the CARDINAL investigative measures effected after DATE .","ORG On DATE ORG dismissed NORP 's appeal , which it declared inadmissible on the ground that his status as a \" witness assisted by a lawyer \" did not confer on him the standing of party to the proceedings .","The status of \" witness assisted by a lawyer \" introduced by Law no . CARDINAL - CARDINAL of DATE was intended to afford persons who are the subject of a complaint laid with a civil party application the same guarantees as those accorded to persons charged ( inculp\u00e9s ) or , to use the current terminology , placed under judicial investigation ( mises en examen ) .","ORG On an application by its principal public prosecutor , ORG decided on DATE to remove jurisdiction from ORG . On grounds of public safety it transferred the proceedings instituted against persons unknown for fatal wounding to ORG .","ORG That ORG examined the case file as communicated by Judge PERSON by his order of CARDINAL DATE .","On DATE it gave a preliminary decision in which it allowed the principal public prosecutor 's application and held \" that it was not necessary to carry out the reconstruction ordered by ORG \" . The reconstruction could no longer \" be effected in satisfactory conditions . In addition the participation of PERSON and PERSON in such events would entail unacceptable risks in view of the insecurity reigning in the region in question according to police reports \" .","It annulled all the measures taken with a view to the reconstruction , delegated its President to continue the additional investigative measures decided on DATE and ordered that from that point the costs should be borne by the civil parties , who might be required to lodge further security .","ORG By letter of CARDINAL DATE the President of ORG asked the applicants to inform him what steps they wished to have carried out and on DATE ORG communicated the investigation file to the prosecutor 's office for its final submissions .","ORG On DATE the GPE prosecutor 's office called for an order finding that there was no case to answer . On DATE the applicants lodged pleadings seeking a reconstruction of the events .","In a decision of DATE ORG found that NORP had been acting in self - defence and that there was not sufficient evidence to justify charging anyone with the offence that was the subject of the proceedings . It therefore ruled that there was no case to answer .","ORG The applicants lodged an appeal on points of law against this decision . In a judgment of DATE their appeal was declared inadmissible by ORG on the ground that the pleadings had not been lodged with the registry of ORG but had been sent directly to ORG without using the services of a lawyer with a right of audience before ORG . The grounds of appeal had not therefore been validly submitted to ORG . The decision was served on the applicants on DATE .","ORG LAW provides as follows :","\" All those who have personally suffered from the damage directly caused by a serious offence ( crime ) , less serious offence ( delit ) or petty offence ( contravention ) may bring civil party proceedings ( action civile ) to seek compensation for such damage .","Discontinuance of such proceedings can neither halt nor stay the criminal proceedings , without prejudice to the cases provided for in paragraph CARDINAL of Article CARDINAL [ of the present Code ] . \"","However , in the case of petty offences , only the prosecuting authority may set in motion the criminal proceedings .","Under paragraph CARDINAL of LAW ,","\" [ Criminal proceedings ] may , in addition , be discontinued by settlement where express provision is made for this possibility . They may likewise be discontinued in the event of withdrawal of the complaint where the complaint was an essential condition for the proceedings to be brought . \"","ORG A civil party application ( constitution de partie civile ) , which has the effect of staying the proceedings in the civil courts , may be made at any time to the investigating judge or the indictment division up to the decision concluding the investigation . It may be opposed by the prosecuting authority , by the person placed under investigation or by another civil party , or the investigating judge may , of his own motion , declare it inadmissible by an order which must state reasons and which is open to appeal ( LAW ) .","The decision of the investigation authority allowing a civil party application to join the proceedings does not prejudge that of the trial court as to the admissibility of that application .","ORG The intervention of a civil party may be motivated solely by the wish to support the public prosecution and to ensure that the guilt of the accused is established . For this reason , according to the case - law , a civil party application may be admissible even if no claim for damages is possible . As a civil party , the victim is kept informed of the steps of the investigation , may appeal against decisions which harm his interests and has access to the investigation file under the same conditions as the person placed under investigation .","ORG When an investigation that has been opened on the basis of a civil party complaint is terminated by an order finding that there is no case to answer , any person who was the subject of the complaint may seek damages in the criminal and civil courts and request that criminal proceedings be brought against the civil party for false accusation ; the prosecuting authority may also summons the civil party to appear in the criminal court before which the investigation was conducted . If the civil party application is held to have been improper or vexatious , the court may impose a civil fine not exceeding FRF CARDINAL,CARDINAL ( LAW ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94990","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF GASYAK AND OTHERS v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award;Dommage mat\u00e9riel - claim dismissed","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicants were born in DATE , DATE , DATE and DATE respectively . They all live in the town of Cizre .","In DATE PERSON , PERSON , PERSON and ORG were killed . The applicants were related to these people as follows : PERSON is the brother of PERSON ; PERSON was the wife of PERSON ; PERSON is the father of PERSON and PERSON was the wife of ORG . The application was brought by the applicants on their own behalf and on behalf of the remaining heirs of the CARDINAL deceased men .","The facts of the case , particularly concerning events which took place on DATE , are disputed by the parties .","The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL - CARDINAL ) . The Government \u2019s submissions concerning the facts are summarised in Section C below ( paragraph CARDINAL).The documentary evidence submitted by the applicant and the Government is summarised in Section D ( paragraphs CARDINAL ) .","NORP The CARDINAL relatives were working as tradesmen , buying food , tea and tobacco from the area near the NORP - NORP border and selling them in the nearby town of GPE and the surrounding areas .","On DATE the CARDINAL men were travelling from Cizre to Silopi in a vehicle which was being driven by ORG . They were stopped by gendarmes at a checkpoint QUANTITY outside the town of Silopi . CARDINAL unmarked ORG cars were parked nearby . At that point , a certain Mr DATE , who lived in Cizre and who knew the CARDINAL men , was travelling from Cizre to Silopi in a minibus and saw the CARDINAL men arguing with a group of gendarme officers in plain clothes . PERSON and PERSON , who used to be ORG members but who had been working for the gendarmerie since their arrests , were also with the gendarme officers . PERSON . G\u00fcven and PERSON were referred to in the area as \u201c confessors \u201d . The applicants\u2019 relatives were then put into vehicles . They were joined by gendarme officers and the confessors and the cars began driving in the direction of Cizre .","Mr A.M. then saw something being thrown out of CARDINAL of the vehicles . He stopped and picked it up and realised that it was PERSON driving licence . The vehicles then turned off the main road and started heading towards GPE . Mr A.M. did not see the vehicles again .","According to the information the applicants subsequently gathered from a number of villagers living in GPE village , CARDINAL of their relatives had jumped out of the moving vehicle and tried to run away , but was shot by CARDINAL of the confessors or the gendarme officers . His body was put in the boot of CARDINAL of the vehicles .","The CARDINAL surviving men were then taken to the gendarme station in GPE , which is located QUANTITY from Cizre . Before sunset they were taken in the same vehicles to a place nearby and were shot and killed .","The killing was witnessed by a certain PERSON and her female friends who were working in a nearby field .","DATE , DATE , Mr TIME told the applicants what he had seen and gave them PERSON driving licence . The applicants then contacted the police and the gendarmerie in Silopi , but were unable to obtain any information from them . The same day PERSON told the applicants about the fate of their relatives . The applicants then contacted the gendarmerie and informed the offices of the prosecutor and the governor .","On DATE gendarmes found the bodies of the CARDINAL men covered with soil and stones . They had all been shot dead and their heads smashed with stones . An on - site report prepared DATE stated that the killings had probably been carried out by members of the ORG in a revenge attack because the deceased had been village guards . However , the deceased had never agreed to become village guards , contrary to the advice of the gendarmerie .","No other action was taken in the area by the gendarmes . They did not question the applicants or any of the persons present in the vicinity .","Furthermore , no steps were taken by the Cizre prosecutor who , on CARDINAL DATE , sent the investigation file to the prosecutor at ORG who had jurisdiction to continue the investigation .","The investigation carried out by the prosecutor in ORG was limited to the sending of occasional letters to the gendarmerie , asking them to search for the perpetrators . The gendarmerie replied that they had been unable to find the perpetrators despite their searches .","The number plate of the vehicle in which the applicants\u2019 relatives had been travelling on DATE was subsequently changed , and the vehicle continued to be used by confessors and other plain clothes officials in Cizre .","The authorities unsuccessfully searched for the CARDINAL confessors , GPE . NORP and PERSON . The requests by the prosecutor to be informed of their whereabouts were ignored by the gendarmerie for a long time . Mr PERSON was subsequently found and questioned by a police officer . Although the applicants were able to find Mr PERSON \u2019s address and gave it to the authorities , no steps were taken to question him . During the eventual trial of the CARDINAL confessors for homicide ( see paragraphs DATE below ) , neither of them ever appeared before ORG ( hereafter \u201c the trial court \u201d ) to give evidence .","The DATE \u2019s submissions were based on the documents drawn up by the national authorities in the course of the investigation , the trial and the compensation proceedings , which documents are summarised below .","On DATE the bodies of the CARDINAL men were recovered by gendarmes and identified by villagers who were present in the area at the time . The gendarmes found CARDINAL PERSON - type spent bullet cases around the bodies . It was concluded in an on - site report prepared by the gendarmes that the CARDINAL men had probably been killed by members of the ORG in order to deter other members of their families from becoming village guards . It was established that the CARDINAL men had been killed where they were found .","DATE the bodies were examined in situ by a doctor who concluded that the CARDINAL men had been killed by gunshot wounds . The doctor , who observed a large number of bullet entry and exit holes on the bodies , deemed it unnecessary to conduct a full autopsy ; the cause of death was established and that was sufficient . A bullet which had entered and exited the body of PERSON was secured for further examination . The Cizre prosecutor was also present at the time of the doctor \u2019s examination .","Also DATE the Cizre prosecutor decided that his office lacked jurisdiction to investigate the killings \u201c perpetrated by members of the illegal organisation \u201d and sent the file to ORG prosecutor \u2019s office ( \u201c the ORG prosecutor \u201d ) .","The ORG prosecutor instructed the gendarmerie on DATE to search for the perpetrators of the killings .","According to a ballistic examination , the CARDINAL spent bullet cases had been fired by CARDINAL separate weapons .","On a number of occasions DATE and DATE , the gendarmerie reported to the ORG prosecutor that they had been \u201c unable to find the perpetrators of the killings which , in all likelihood , had been carried out by members of the NORP \u201d . On DATE a number of soldiers had visited the place where the bodies had been found in DATE , but they had been unable to establish the identities of the perpetrators .","On DATE a lawyer representing the applicants wrote to the ORG prosecutor and asked him to investigate the killings . The lawyer pointed to the fact that none of the relatives of the deceased men or anyone living in the area where the bodies had been found had been questioned by the authorities . He also informed the prosecutor that Mr A.M. and PERSON had witnessed the incidents .","The applicants , who were questioned by the ORG prosecutor on DATE , stated that after the killing of their relatives they had been warned by the security forces not to make any complaints . They also told the prosecutor that no investigating authority had ever questioned them .","The same day Mr A.M. and PERSON were also questioned by the ORG prosecutor . They gave the prosecutor their eyewitness accounts of the events DATE which are summarised above ( see paragraphs CARDINAL and CARDINAL above ) \u2013 leading up to the killing of the CARDINAL men .","Also DATE the ORG prosecutor decided that he lacked jurisdiction to investigate the killings because , although it had been stated by his opposite number in Cizre in DATE that the killings had been carried out by members of the ORG ( see paragraph CARDINAL above ) , it was now being alleged by the applicants that their relatives had been killed on account of their refusals to become village guards . The CARDINAL confessors and \u201c their accomplices whose identities could not be determined \u201d were referred to in this document as the \u201c accused \u201d . The ORG prosecutor then forwarded the file to the office of the Cizre prosecutor .","The applicants and the QUANTITY eyewitnesses , Mr A.M. and PERSON , were questioned by the Cizre prosecutor on various dates in DATE and DATE and DATE . They repeated their respective complaints and eyewitness accounts of the events . Mr TIME also told the prosecutor that he would be willing to identify the CARDINAL confessors in an identity parade .","On DATE Abdulhakim G\u00fcven , CARDINAL of the CARDINAL confessors allegedly involved in the killings , was questioned by a police officer . He denied the accusations against him .","The other confessor , PERSON , was questioned by the Cizre prosecutor on DATE . He also denied the accusations and stated that he had been performing his military service at the material time .","On DATE the \u015e\u0131rnak prosecutor filed an indictment with ORG ( \u201c the PERSON court \u201d ) , charging the CARDINAL confessors with the offence of multiple homicide .","In the course of its first hearing on DATE the PERSON court sent letters rogatory to ORG in GPE and Batman where the CARDINAL defendants were living , and asked those courts to question the defendants .","On DATE ORG questioned PERSON who disputed the allegations and stated that at the time of the killings he had been in prison .","During a hearing held on DATE , Mr DATE and PERSON repeated their eyewitness accounts before the PERSON court . The same day the PERSON court issued an arrest warrant for PERSON . It also ordered that ORG be photographed with a view to showing his photographs to the eyewitnesses .","On DATE PERSON was arrested and questioned by the ORG pursuant to the letters rogatory mentioned above . He denied the accusations and maintained that he had been performing his military service at the time of the killings . He was released DATE .","On DATE the lawyer for the applicants sent a letter to the \u015e\u0131rnak court , requesting permission for his clients to join the proceedings as interveners . This request was accepted on DATE .","During the subsequent stages of the proceedings it transpired that on DATE that is , DATE before the killings \u2013 Abdulhakim G\u00fcven had been released from prison for DATE with the permission of ORG so that he could \u201c help the security forces with their anti - terrorism operations \u201d . In fact , on various dates in DATE he had been released from prison to help the security forces .","The PERSON court had to postpone a number of its hearings to wait for the photographs of Abdulhakim G\u00fcven .","After having sent a number of reminders , on DATE the PERSON court was finally provided with the photographs of ORG taken on DATE . During a hearing held on DATE , the eyewitness Mr A.M. was shown the photographs but was unable to identify ORG . Mr TIME told the PERSON court that he had last seen Mr G\u00fcven more than DATE and that at that time Mr G\u00fcven had had a long beard ; the person in the photograph did not have a beard .","At the same hearing the prosecutor asked the PERSON court to acquit the defendants . The PERSON court accepted that request and acquitted the defendants for lack of sufficient evidence . It considered , in particular , that although Mr A.M. had been in a minibus with a number of other persons , he had been the only person to witness the alleged abduction of the CARDINAL men . In any event , the defendants had been working as informers and helping the security forces . Such informers were not well regarded by the residents of the region and , as such , the testimony of Mr A.M. implicating the confessors in the killings was disregarded . According to the PERSON court , the fact that Abdulhakim G\u00fcven was not in prison at the time of the killings did not prove that he had taken part in them . He had been helping the security forces with their operations and , as such , it was not logical that he would be involved in a killing . The PERSON court also decided to inform the relevant prosecutor to continue with the search for the perpetrators .","The applicants appealed . In their appeal petition they referred to the obligations under LAW and CARDINAL of the Convention to carry out effective investigations into incidents of killings , and alleged that the investigation into the killing of their relatives had been flawed . They maintained that the eyewitnesses had been consistent throughout the criminal investigation . The confessor PERSON had lied to the investigating authorities when he said that he had been in prison on DATE ( paragraph CARDINAL above ) . The PERSON court had contented itself with showing the photographs of CARDINAL of the defendants to an eyewitness and had not summoned the defendants to the trial . Furthermore , the investigating authorities had failed to follow up leads concerning the involvement of the gendarmerie and the security services and had only prosecuted the CARDINAL confessors . They argued that the trial court had also failed to ensure an identity parade so that the eyewitnesses could have seen and identified the CARDINAL confessors .","On DATE ORG rejected the appeal and upheld the CARDINAL GPE acquittals .","In their letter of CARDINAL DATE the applicants informed the ORG that the same CARDINAL confessors ( that is , Mr Abdulhakim G\u00fcven and Mr PERSON ) , a high - ranking army official and CARDINAL intelligence officers working for the gendarmerie had been indicted in DATE and put on trial for the killing of their CARDINAL relatives as well as the killing of a number of other persons at around the same time .","DATE . On DATE the second to fourth applicants , together with a number of other heirs of their deceased relatives , submitted petitions to ORG office and claimed compensation under the provisions of ORG resulting from Terrorism and LAW ( Law no . DATE of DATE ) . In their petitions the CARDINAL applicants repeated their allegations of ORG involvement in the killings .","On DATE the \u015e\u0131rnak Governor \u2019s office partially accepted the compensation claims made by the CARDINAL applicants in respect of the killings of their relatives \u201c by members of the ORG \u201d . The second applicant PERSON Gasyak was awarded approximately MONEY ( ORG ) in respect of the killing of her husband PERSON . The third applicant PERSON was awarded approximately ORG CARDINAL,CARDINAL in respect of the killing of his son PERSON . The fourth applicant PERSON was awarded approximately EUR CARDINAL,CARDINAL in respect of the killing of her husband ORG . Other heirs of these CARDINAL deceased men were also awarded various sums of money ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103003","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2011,"docname":"CASE OF LIPENCOV v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano","text":["The first applicant was born in DATE , and is the son of the second applicant , who was born in DATE . They live in PERSON . The first applicant was DATE at the time of the events giving rise to the present application . According to the second applicant , he has an intellectual impairment and has been medically supervised by a psychiatrist since childhood . In view of his condition , he received his schooling at home .","The facts of the case , as submitted by the parties , may be summarised as follows .","According to police records , the first applicant was arrested by police officers at TIME on DATE after they were called to a private apartment building where the applicant had already been apprehended by some of the residents .","According to the applicants , he had been taken to the building forcibly by CARDINAL persons of his acquaintance who had accosted him in the street TIME and assaulted him . Their intention had been to push him from the roof of the building , but their presence had been detected by CARDINAL of the residents . Believing that there was a robbery in progress , these men seized the first applicant and beat him . He had already sustained some injuries when the police arrived . The applicants maintained that he received a further beating from the police .","According to the ORG , at the time of his arrest the first applicant was already under police suspicion of having committed a number of thefts . An ordinance had been issued against him charging him under Article CARDINAL ) of LAW . As he had failed to present himself to the police to be informed of the charge , an ordinance to search for him was issued by a prosecutor on DATE . On TIME the first applicant was caught in the act of theft inside an apartment building . As for his injuries , the Government speculated that these could have been caused by the persons who apprehended him , or may have been self - inflicted when the applicant had tried to conceal himself in a ventilation duct .","The applicants alleged that following his arrival at LOC police station , the first applicant was punched by police officers and beaten with rubber truncheons in an attempt to make him confess to a number of thefts . He was repeatedly sworn at and refused food , drink and access to the toilet . No medical treatment was provided for his injuries .","The second applicant stated that she came to the police station that DATE to visit him and to give him food and clothes , but was not permitted to see him . The applicants maintained that DATE , CARDINAL DATE , the first applicant was taken by the police to a marketplace for certain procedural acts . No lawyer was present . The applicant 's other son witnessed this , and noted his brother 's visible injuries . TIME , TIME , the first applicant was questioned by police officers in the presence of a lawyer as well as of the second applicant . During the interrogation , the first applicant complained of pain in his head and of strong nausea . It appeared to the second applicant that he had been badly beaten , and he was hungry . Despite his complaints , he was required to answer the questions put to him and was refused access to the toilet . After the interrogation he was returned to his cell , having received no medical assistance .","On TIME , the second applicant returned to the police station , expecting that her son would be released by TIME , which marked the end of the CARDINAL-hour period during which he could be detained without a court order . She was denied access to the building . The first applicant was again taken to the marketplace for undisclosed purposes . He was brought back at TIME The second applicant , assisted by CARDINAL lawyers from ORG , requested the first applicant 's release , which was initially refused . According to police records , he was eventually released at TIME that day .","DATE after his release , the first applicant underwent a medical examination . This recorded a bruise covered with a red - brown crust measuring QUANTITY on the right side of his head , and an adjacent one measuring QUANTITY . A similar bruise measuring QUANTITY was found in his right parietal region . Multiple oval bruises were found on his right , central and left lumbar region , covered by a brown crust and each measuring QUANTITY . The doctor noted the first applicant 's explanation of what happened to him ( see paragraphs CARDINAL above ) and concluded that this was consistent with the injuries recorded . The applicant attended a hospital for treatment for DATE .","The second applicant made several written complaints to the authorities regarding the events set out above . On DATE she complained to ORG and to the investigating judge of the ill - treatment of her son by the police . She referred to his intellectual disability and to the fact that he was a minor . On DATE she lodged a complaint with the investigating judge and described the events of DATE . She referred , inter alia , to Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( see below ) and asked that those responsible for abusing her son be punished . On DATE the second applicant complained to ORG that her apartment had been searched DATE by the police , who had refused to identify themselves or show a search warrant . She requested that those responsible be identified and punished .","All of these complaints were investigated by prosecutor PERSON of the PERSON prosecutor 's office . He interviewed the applicants , other family members , the lawyer who attended the interrogation on DATE , the applicants ' neighbours , and the police officers involved . By a letter of CARDINAL DATE the prosecutor informed the second applicant that he had decided not to initiate a criminal investigation since there was no evidence that the police had committed a crime . He added that \u201c in view of the irregularities that have been allowed , a note was sent to the LOC police station \u201d .","On DATE the second applicant challenged the prosecutor 's decision before the investigating judge . In her complaint , she ; that she had been refused access to him ; that he had been detained for DATE hours contrary to the law ; and that an unlawful search had taken place at the applicants ' apartment on DATE . She criticised the prosecutor 's answer as very general . Although he mentioned that the police had committed \u201c certain irregularities \u201d , he had not explained what these were and had not provided a copy of the note sent to the LOC police station . Moreover , the prosecutor had not sent a reasoned decision , as required by law . The complaint referred to both the substantive and procedural obligations of the authorities under the Convention in respect of the first applicant 's ill - treatment and the obligation to respect the inviolability of their home .","On DATE the investigating judge of ORG rejected the complaint as unfounded . He found that the first applicant had been accused of a number of thefts and that all the investigative acts had been carried out within the framework of lawfully conducted criminal proceedings . Since the first applicant had failed to appear before the investigator after several summonses had been sent to him , it had been necessary to be compel his attendance at the police station . All procedural acts that had required authorisation had been properly authorised . Moreover , the prosecutor had fully and objectively verified the complaints concerning ill - treatment and had found no confirmation of the allegations .","That decision was final . It was sent to the second applicant on DATE and reached her on DATE .","The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , \u00a7 CARDINAL , DATE ) .","In addition , the relevant provisions of LAW read as follows at the material time :","\u201c CARDINAL . Short - time arrest is the deprivation of liberty for a short period , but not exceeding TIME , in accordance with the law . ... \u201d","... CARDINAL . Detention of a person in accordance with the present Article can not exceed CARDINAL hours from the moment when the deprivation of liberty started . \u201d","ORG for the Prevention of Torture has visited GPE several times , and has inspected LOC police station . The following extract , taken from the report of the visit of DATE , is relevant to the present case :","\u201c CARDINAL . The right of persons in police custody to have access to a doctor ( including to CARDINAL of their own choice ) , is still not expressly guaranteed by law . In the report on the DATE visit , the ORG considered that the form of words in LAW , paragraph CARDINAL , sub - paragraph CARDINAL of the CCP ( i.e. the right \u201c to submit requests , including for independent medical assistance \u201d ) fell short of meeting the ORG 's long - standing recommendation in this respect . Many persons who were in police custody in the context of the DATE events complained that , despite repeated requests for independent medical assistance , they had been refused such assistance . In some cases , police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned . Further , it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it . Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill - treatment , but it may also have serious repercussions on the health of persons in police custody . Clearly , access to an independent doctor should not be left to the discretion of police officers . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98550","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF LARIN v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE , GPE region .","On DATE the ORG of LOC convicted the applicant of theft , robbery and forgery and sentenced him to DATE and DATE imprisonment . This judgment was upheld by ORG on DATE . The courts found , inter alia , that the applicant had paid for a car , purchased from Mr O. , with counterfeit MONEY . The court further indicated that Mr O. might bring civil proceedings against the applicant .","NORP In DATE Mr O. lodged a civil claim against the applicant , seeking to recover his car from the applicant . It was received by the ORG on DATE .","On DATE Judge PERSON of the ORG forwarded a copy of the statement of claim to the administration of the detention centre where the applicant was being detained ( remand prison PERSON ) . In a cover letter , the judge instructed the administration to hand the statement of claim to the applicant and obtain his written observations in reply by DATE .","According to the Government , on DATE the applicant was transferred to correctional colony OM-CARDINAL\/CARDINAL where he was to serve his sentence . That colony was situated in GPE , GPE region . The documents sent by Judge PERSON to the applicant were forwarded to his new address in that colony . The colony received them on DATE .","On DATE , the ORG examined the civil claim in the applicant 's absence . On DATE ORG , by a default judgment , ordered the applicant to return the car to Mr O. The court indicated , inter alia , that the defendant ( the applicant ) had been properly notified of the date of the hearing but had failed to appear . Mr O. was present and made oral submissions to the court .","NORP The applicant alleged that he had been notified of the hearing only on DATE . The following day he had approached ORG seeking the reopening of the proceedings and reversal of the judgment on the ground that the hearing had taken place in his absence . The applicant had also requested legal aid and insisted on his personal presence at the hearing . On DATE his letters were dispatched to ORG by the administration of the correctional colony . They were received by the court on DATE .","On DATE the court set a date for hearing the applicant 's request and informed the applicant thereof . The Government maintained that the notification had been received by the applicant on CARDINAL DATE .","On DATE the applicant wrote a letter to ORG asking them to examine the case in his presence and provide him with a lawyer . That letter was dispatched to the court by the head of the correctional colony . His cover - letter was dated DATE ; however , according to the postal stamp , the applicant 's letter was actually posted on DATE .","On DATE the hearing took place in the applicant 's absence . Mr. PERSON was present and made oral submissions . The applicant alleged that he had been unable to attend the hearing for want of a court 's \u201c conveyance request \u201d ( \u0437\u0430\u044f\u0432\u043a\u0430 \u043d\u0430 \u044d\u0442\u0430\u043f\u0438\u0440\u043e\u0432\u0430\u043d\u0438\u0435 ) ordering the correctional colony administration to escort him to the court .","By a decision of DATE the ORG refused to re - examine the case . The court found that the applicant had not presented any new evidence that might affect the court 's findings of DATE . The applicant 's argument that he had not been properly notified of the hearing and his request for legal aid were left open in the court 's decision . DATE , that decision was sent to the applicant .","Following ORG refusal to reopen the proceedings , the applicant appealed to ORG , complaining about the first - instance court 's decisions of DATE and DATE . He insisted that his personal presence at the hearing of DATE had been necessary to prove that the deal with Mr. PERSON 's car was legal and valid , and that the proceedings should therefore be reopened . He also asked ORG to order his conveyance from the correctional colony in order to take part in the hearing .","On DATE Judge PERSON informed the applicant of the date of the appeal hearing , by way of a simple notice . The judge indicated that the applicant 's personal presence at the hearing was not mandatory , and that bringing him to the court hearing was \u201c inopportune \u201d .","On DATE ORG examined the appeal in absentia and upheld the judgment of DATE and the decision of DATE . The court indicated that , under LAW , proceedings ending with a default judgment should only be reopened if CARDINAL conditions were met : ( a ) the absent party had been unable , with good reason , to attend the hearing or to inform the court in a timely fashion thereof , and ( b ) the absent party produced evidence that might affect the conclusions of the default judgment . The court further indicated that the default judgment of DATE had been fully based on the courts ' findings in the criminal case against the applicant . Lastly , ORG established that the applicant 's submissions about the circumstances of the deal with the car would not have had any impact on the findings of the default judgment . In conclusion the court stated as follows :","\u201c The argument that [ the applicant 's ] absence in court was excusable because he had been unable to inform the court in a timely fashion of the valid reasons for his absence can not be accepted as a sole ground for quashing the judgment since the default judgment may only be quashed if both of the above - mentioned conditions have been met . Furthermore , [ the applicant ] does not explain why he was not able to inform the court that he was serving a prison sentence . \u201d","As a consequence , ORG dismissed the appeal and upheld the default judgment .","NORP Parties to civil proceedings could appear before a court in person or act through a representative ( LAW in force until DATE ( \u201c the old ORG \u201d ) .","Article CARDINAL of the old ORG provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case . Where necessary , the parties could be summoned by a telephone call or a telegram . Pursuant to ORG and CARDINAL , court summonses were to be sent by post or by courier and served on the person who was a party to the case . The party was to sign the second copy of a summons which was to be returned to the court . If a summons could not be served on a party , it was to be served on an adult family member who lived with the party . If a party was absent , the person who delivered the summons was to note on the second copy of the summons where the party could be found ( Article CARDINAL ) .","Article CARDINAL required that civil cases be heard in a court session with mandatory notification of the case to all parties . Article CARDINAL provided that court sessions started with the court secretary informing the judge of the parties who had received summons but had failed to appear . The secretary had to inform the judge of the reasons for their absence . Pursuant to Article CARDINAL , if a party to the case failed to appear and there was no evidence that the party had been duly summoned , the hearing was to be adjourned .","Article CARDINAL provided that if a defendant was duly notified of the hearing but failed to appear , the court might proceed with the case , provided that the plaintiff did not object . Article CARDINAL provided that a default judgment could be challenged either by lodging a request for the reopening of the case with the first - instance court , or by appealing directly to the court of appeal . Under LAW , a decision of the first - instance court not to reopen the case was subject to an appeal as well . Under LAW , the reopening of a case was possible if CARDINAL conditions were met : ( a ) the absent party had been unable , with good reason , to attend the hearing or to inform the court in a timely fashion thereof , and ( b ) the absent party produced evidence which might have affected the outcome of the case .","The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigation unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( Article CARDINAL ) . The Code does not mention the possibility for convicted persons to take part in civil proceedings , whether as plaintiffs or defendants .","LAW ( Law of DATE ) , together with ORG ) , in force until DATE , provided that free legal assistance in civil cases could be provided to certain categories of litigants and for certain categories of disputes such as labour disputes , disputes concerning disability pensions , work - related accidents , etc . ( sections CARDINAL and CARDINAL respectively ) . Disputes involving prisoners similar to the one at the heart of the present case were not mentioned amongst them . However , the law stipulated that free legal assistance could be provided for litigants who had no means to pay for it , on the initiative of the advocate 's office , the investigator or the court ( section ORG ) of LAW ) . If free legal assistance was granted by the court , the lawyers ' fees had to be paid by the ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90457","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF HASEFE v. TURKEY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicants were born in DATE , DATE and DATE respectively and live in GPE .","The first applicant is the mother and the remaining CARDINAL applicants are the sister and brother of PERSON , who was employed by ORG in GPE . On DATE a number of armed persons raided the ORG ' premises and killed PERSON and CARDINAL others .","On DATE the applicants wrote to ORG ( \u201c the Ministry \u201d ) and claimed compensation in accordance with LAW on the ground of the ORG 's failure to protect PERSON right to life . ORG rejected the claim on DATE .","On DATE the applicants filed a compensation claim against ORG before ORG ( hereafter \u201c the GPE court \u201d ) .","On DATE the GPE court partly allowed their claims for compensation and ordered the Ministry to pay certain sums of compensation to the applicants in respect of pecuniary and non - pecuniary damage .","On DATE the applicants asked the Ministry to pay them the amounts of compensation awarded by the GPE court .","The Ministry appealed against the decision on DATE and asked for an interim injunction suspending the execution of the GPE court 's decision . In his written submissions the prosecutor at ORG agreed with ORG and requested that an interim injunction be granted and that the decision of the GPE court be quashed . The prosecutor 's written submissions were not forwarded to the applicants .","On DATE ORG granted the injunction sought by ORG and on DATE it quashed the GPE court 's decision of DATE .","The case was remitted to the GPE court , which decided on DATE to reach the same conclusion as it had in its decision of DATE . It ordered the Ministry to pay the same amounts of compensation to the applicants as those awarded in its previous decision . ORG appealed . The applicants also appealed and argued that the amounts of compensation ordered by the GPE court were no longer satisfactory owing to the low rates of interest .","On DATE ORG ( NORP PERSON ) dismissed the ORG 's appeal and accepted the applicants ' claims for higher rates of interest in respect of non - pecuniary damage .","A request by ORG for rectification of the GPE court 's decision of DATE was rejected on DATE .","On DATE the GPE court adopted a decision in line with the decision of ORG in so far as it concerned the rates of interest for non - pecuniary damage , and awarded compensation to the applicants . On DATE the ORG appealed against the decision . According to the information provided by the ORG , the appeal proceedings are still pending .","On DATE the ORG paid the applicants the amounts of compensation awarded by the GPE court in its decision of DATE and the interest awarded in the same court 's decision of DATE . The total sum paid to the CARDINAL applicants was CARDINAL new NORP liras ( TRY \u2013 MONEY ( ORG ) at the time ) .","DATE Procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within DATE of the alleged act . The victim must first apply to the relevant administrative entity and claim compensation for the damage before he or she can lodge a compensation claim in the administrative courts . If this claim is dismissed in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL of LAW provides :","\u201c ( CARDINAL ) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by ORG , the ordinary or regional administrative courts or the courts dealing with tax disputes . Under no circumstances may the time taken to act exceed DATE following service of the decision on the authorities .","...","( CARDINAL ) Where the authorities do not adopt a decision or do not act in accordance with a decision by ORG , the ordinary or regional administrative courts or the tax courts , a claim for compensation for pecuniary or non - pecuniary damage may be brought before ORG and the relevant courts against the authorities .","( CARDINAL ) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within DATE [ following the decision ] , compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question . \u201d"],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110529","languageisocode":"ENG","respondent":"UKR","branch":"COMMITTEE","date":2012,"docname":"CASE OF BLINOVA v. UKRAINE","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)","judges":"Angelika Nu\u00dfberger;Ann Power-Forde","text":["The applicant was born in DATE and lives in ORG .","In DATE the applicant initiated a land dispute with her neighbours .","On DATE the proceedings , which had taken place before the courts of CARDINAL levels of jurisdiction , were completed by a final ruling of ORG allowing the applicant \u2019s claim in part .","In the course of the proceedings , there was CARDINAL remittal of the case from the appellate court to the first - instance court for fresh consideration . The courts also ordered CARDINAL forensic technical expert examinations .","There were several adjournments in the proceedings due to the parties\u2019 failure to appear for hearings ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-114253","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2012,"docname":"CASE OF DIMOV AND OTHERS v. BULGARIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Pavlina Panova;Zdravka Kalaydjieva","text":["The applicants were born in DATE , DATE and DATE respectively and live in GPE .","The first CARDINAL applicants are the sons , and the third applicant is the widow , of Mr Todor PERSON ( alias Chakara ) , who died on CARDINAL or DATE in the course of a police operation for his arrest .","DATE PERSON , born in DATE , was convicted CARDINAL times of various offences . In DATE he was convicted of inflicting bodily harm of medium severity . In DATE he was convicted of forming a group intending to engage in sabotage , of trying to cross the border illegally , of stealing public and private property and a motor vehicle , and of unlawfully possessing firearms and ammunition . In DATE he was convicted of inflicting minor bodily injury on an official in connection with the performance of the latter \u2019s duties . In DATE he was convicted of stealing fiftythree lambs . In DATE he was convicted of trying unlawfully to export valuables . In DATE he was convicted of stealing CARDINAL lambs and unlawfully possessing firearms .","On DATE Mr PERSON was convicted of systematically letting out his house for lewd acts , and sentenced to CARDINAL months\u2019 imprisonment . The conviction and sentence became final on DATE .","On an unspecified date in DATE the GPE police were notified of that latest conviction and sentence , and dispatched CARDINAL officers to arrest Mr PERSON with a view to sending him to prison to serve the sentence . The officers went to his house in GPE , informed him that he was due to be imprisoned , and asked him to come with them . Mr PERSON , visibly calm , asked the officers to wait for TIME , so that he could prepare his luggage . The officers waited for TIME outside the house . When they went in to arrest PERSON , they saw that he had fled . After that they went back to the police station and reported the incident to the head of the ORG police and to ORG .","The account of the circumstances surrounding Mr PERSON \u2019s death is based on the findings of the investigation carried out by the military prosecuting and investigating authorities ( see paragraphs CARDINAL below ) .","NORP In DATE ORG ordered the police to carry out a series of operations for the arrest of individuals with final convictions and sentences . As a result , in TIME of DATE the head of ORG assembled CARDINAL groups of officers to arrest PERSON . The first group had to check his house in GPE , the second had to check the sheep pen of an associate of his , and the third had to check Mr PERSON \u2019s country house , situated near GPE . All CARDINAL groups were armed with their service pistols . They were told that PERSON might try to escape or put up armed resistance , and instructed to use their weapons only as provided for by law .","At TIME the CARDINAL groups set out to carry out their respective tasks . The first and the second group were unable to find Mr PERSON . The third group , which consisted of CARDINAL officers , CARDINAL of whom were in uniform ( one wearing a bulletproof vest ) and CARDINAL in plain clothes , arrived near Mr PERSON \u2019s country house at QUANTITY The house was surrounded by service buildings . All of those were erected on uneven terrain sloping steeply from the north - west to the south - east . The officers stopped their car in front of the gate , close to which they saw a big pile of used car tyres . They noticed that the gate was closed and started to whistle and shout . Several dogs in the yard started barking and PERSON PERSON \u2019s mother came out of CARDINAL of the service buildings . CARDINAL of the officers presented himself and told her that they were looking for her son . Then she opened the gate and held the dogs back . The officers moved towards the house , the one with the bulletproof vest walking in front , and went through another gate between several service buildings . At that point they spotted Mr PERSON on the steps outside the house , carrying an unidentified weapon . He also saw them , waved to them to go away and fired a shot , apparently in their direction . CARDINAL of the officers hid behind the service buildings and CARDINAL behind some building materials scattered around the yard . He then ran back to the car and radioed the headquarters in GPE about the incident . At CARDINAL or DATE the head of the CARDINAL officers ordered them to remain where they were and not to take further action .","Shortly after that the head of ORG directed all police teams in the town towards Mr PERSON \u2019s country house and requested assistance from the police in CARDINAL neighbouring towns , GPE and FAC . The GPE police dispatched an emergency response team consisting of CARDINAL officers , and the FAC police sent CARDINAL officers divided into CARDINAL teams . The head of the FAC police also went to the scene of the incident .","At TIME the GPE police , some of whom had armed themselves with long barrel weapons , surrounded the house and cut off all access points , waiting for the emergency response team from GPE to arrive . It seems that Mr PERSON fired several shots at them , with CARDINAL of the bullets hitting the mudguard of a police car . The police did not fire back .","Shortly after that the GPE team arrived and positioned themselves around the house . The head of the team informed the Minister of ORG of the situation . The Minister decided to dispatch the special antiterrorism squad and psychologists of ORG . The FAC police also arrived TIME . Most of them took up position around the house . A fire engine also came to the scene .","The head of the PERSON team decided to try to establish contact with Mr PERSON through relatives of his . At TIME Mr PERSON \u2019s sister was called in and asked to help the police . At the same time Mr PERSON \u2019s elder son ( the first applicant ) also arrived . He offered to take his father a mobile phone so that he could communicate more easily with the police . The head of the GPE police team refused , apparently for fear that the first applicant might be taken hostage by PERSON . Some time after that the CARDINAL officers hiding behind the service buildings managed to get out of the yard with the help of Mr PERSON \u2019s mother .","At TIME Mr PERSON \u2019s sister approached the house and brought her mother out . She spotted PERSON , who waved at her . She understood the gesture to mean that he wished to talk to somebody on the phone , and asked the police to allow her to take a mobile phone or a megaphone to PERSON . Her request was turned down with the explanation that the police were waiting for psychologists , who would try to establish contact with PERSON , to arrive .","Shortly after that CARDINAL psychologists of ORG arrived . They started gathering information about Mr PERSON \u2019s personal history , character and relations with his family , in order to decide whether his relatives might be able to exert a positive influence on him . The first applicant again asked for permission to take his father a mobile phone , but his request was turned down due to security concerns .","Shortly after that the special antiterrorism squad arrived . They gathered information about the internal structure of the house from Mr PERSON \u2019s relatives , with a view to determining safe ways of approaching the house .","Around TIME the psychologists tried to make contact with Mr PERSON from a height situated at QUANTITY from the house , using a megaphone . As communication from such a distance was difficult , at the suggestion of the first applicant they advanced to CARDINAL or QUANTITY from the house . They tried to persuade PERSON to surrender . He requested to speak with his mother and his sister , but his request was denied . He then apparently said that if anyone was to get hurt , it would be him . As the psychologists believed that the first applicant would be able to exert a positive influence on Mr PERSON , they tried to continue the negotiations with his participation until TIME As Mr PERSON did not reply for TIME , they gave up . According to the first applicant , the reason for the discontinuation of the negotiations was the fact that the megaphone \u2019s battery had run out .","Around TIME the police decided to attack the house , because they believed that Mr PERSON had prepared a secret escape route and might try to flee . The head of the anti - terrorism squad split his men into CARDINAL groups . The first , consisting of CARDINAL officers , was to attack from the northwest , from high ground , and the second from the service buildings . The first group was moving in a column , with the first officer carrying a protective shield . They fired CARDINAL smoke bombs at the house , with a view to forcing PERSON out of it . However , as the windows and the doors were covered with linoleum , cardboard and blankets , most of the smoke bombs failed to penetrate . Mr PERSON started firing at the first group , and this forced them to take cover in a ditch . The head of the squad ordered the second group to fire at the house to divert Mr PERSON \u2019s attention and PERSON PERSON fired back at them . The skirmish lasted for TIME , after which both groups of officers retreated . At TIME the GPE police , who were hiding behind the pile of tyres , were also ordered to retreat to a safe distance .","After that the police tried to resume the negotiations . A group of officers and the first applicant advanced to CARDINAL from the house and invited Mr PERSON to continue negotiating . He did not reply and the police gave the megaphone to the first applicant , who called upon his father to surrender . Again , there was no reply . At that point the police saw that as a result of the earlier attack a room on the first floor of the house had caught fire . The psychologists and the first applicant then retreated . The first applicant shouted towards the house \u201c Father , please come out unarmed and surrender , so that this whole episode can be over \u201d , but his supplication went unanswered .","At TIME the head of the antiterrorism squad ordered his men to blow up holes in the walls of the house . They used stunt grenades . According to his later statements , this led to explosions and a short skirmish . According to the first applicant , after TIME Mr PERSON did not talk or shoot back at the police , or react to their attacks in any other way .","After that the head of the antiterrorist squad informed the Minister of ORG about the latest developments . The Minister called a halt to all actions pending the arrival of the Secretary General of ORG , general PERSON , on the spot . In the meantime , police vehicles were placed on a height facing the house , so as to shed light on the scene with their headlights .","NORP The Secretary General arrived at CARDINAL or TIME and took command of the operation . He ordered the police to blow a hole in the walls of the house . The police carried out the order . According to a later statement by the Secretary General , after the first explosion there was a second one , coming from the upper levels . As a result , the roof caught fire and quickly burned down . Apparently several unsuccessful attempts were then made to enter the house , but it is unclear in what exactly they consisted . Meanwhile , an individual who had worked on the house and who had heard about the incident on the radio came to the police and told them that Mr PERSON had warned him that the house was booby - trapped .","Around TIME , on the orders of the Secretary General , a border police unit was called in to monitor the house and its surroundings with nightvision devices . The monitoring continued until TIME .","Later , following a discussion with other senior officers , the Secretary General ordered the police to use a rocket propelled grenade launcher , in order to diffuse any possible booby traps and speed up the search of the house . The launcher was brought at TIME on DATE , and given to the antiterrorism squad . CARDINAL TIME an officer of the squad fired CARDINAL rocket propelled grenades at the lower parts of the house and a room on the first floor , which made a big breach in the wall . It was decided to await daylight to attack .","DATE TIME the police formed a thick cordon around the house . They started entering the house and checking the ground and the first floor . When they reached the attic floor , using a fireladder , they saw the legs of Mr PERSON \u2019s charred body . The operation was then terminated , the house was sealed off , and the incident was reported to the military prosecuting authorities .","DATE , DATE , ORG opened an investigation into the above events . An investigator carried out an inspection of the scene of the incident and took photographs .","DATE , DATE , a doctor from the forensic ward of the PERSON hospital performed an autopsy on Mr PERSON \u2019s body . He noted the following :","\u201c The body is split in CARDINAL and the vertebral column is severed at the fifth or the sixth vertebra . The body is as a whole charred . The configuration of the skull is intact . The hair is missing . There are remains of charred soft tissue on the calvaria and the face . The lower jaw is broken at the level of the right ramus mandibulae , with broken fragments and teeth . The skull bones are crumbly , charred . The configuration of the brain is intact , as if it has been parched . The brain tissue is not damaged and there are no haematomas in the cranial cavity . The skin at the neck is charred . Part of it , near the trachea and right part of the neck , is missing , which allows one to see the charred underlying neck muscles . The upper third of the thorax is preserved , but the soft tissue is fully charred . The lungs and the heart are still connected to their holders ; they have shrunk , they are parched and dry with charred surfaces and hard to cut . The surrounding tissue of the section has no visible structure . The liver , shrunk and charred , reduced in size and parched , lies beneath . The vertebral column is segmented at the level of the fifth or the sixth vertebra , and what remains of it , including the lumbar part , has charred vertebrae covered with remains of charred tissue . CARDINAL of the abdominal wall are missing . The pelvis , including the wings of the iliums , the ischium and the pubic bone , is broken into pieces . The symphysis is separated . Parts of the intestines , charred , and remains of fatty tissue were found inside the pelvic cavity . Limbs : the right arm is strongly flexed at the elbow joint ; the bones in the joint are apart . The wrist is flexed and the fist is clenched . A safetyloop from a hand grenade was found on the third finger , between the first and the second phalanges . The skin and the muscles of the hand are charred . The palm and CARDINAL of the forearm of the left hand are missing , and the remains have an uneven edge and are strongly flexed at the elbow joint . The soft tissue is charred . The skin and the muscles on the entire surface of the right thigh are charred . The skin on the front surface of the knee and on the front surface of the upper CARDINAL of the shank is preserved . The soft tissue on the back surface of the shank is charred to the bone , and the back surface of the heel is burned . The foot is encased in a [ militarytype ] shoe . One can see the remains of trousers and of woollen socks . The skin and the muscles of the left leg and of the thigh are charred . The left shank has been affected in the same way as the right one , with a [ militarytype ] shoe and a charred sock on . There are greyish metal pellets driven into the tissue and the bones of the pelvis area . CARDINAL such pellets were taken out of the left ilium and given to the investigator . We made Xrays of the body in the autopsy room ... On the images one can see ovalshaped foreign bodies with similar diameters driven into the tissue , mostly in the pelvis and the thorax . One can see a metal safetyloop attached to the third finger of the right hand . ... \u201d","In DATE the authorities interviewed all officers who had taken part in the operation : thirtynine officers from ORG , CARDINAL officers from ORG , CARDINAL officers from ORG , thirtyone officers from the special antiterrorism squad , CARDINAL border police officers , CARDINAL psychologists from ORG , and the Secretary General of ORG . They also interviewed the applicants and other eyewitnesses , and commissioned a number of expert reports .","On DATE the investigator in charge of the case proposed that the prosecuting authorities discontinue the investigation . On DATE the ORG agreed to the proposal . It said that the investigation had categorically established that Mr PERSON \u2019s death had been due to the explosion of a hand grenade which he had himself detonated close to his body . No officers were responsible for that . The actions of the police had fully complied with the applicable rules and had been the only actions possible under the circumstances , in view of the resistance put up by PERSON and the fact that he had fired at them .","On DATE the applicants sought judicial review of the discontinuance .","On DATE ORG , sitting in private , set the discontinuance aside and referred the case back for additional investigation . It noted that the investigation had failed to establish the exact time of PERSON death , which had prevented the prosecuting authorities from assessing fully the lawfulness of the actions of the police , including the use of explosives , smoke bombs and a grenade launcher . It went on to say that the prosecuting authorities had failed to analyse the evidence properly and give reasons why they believed that all actions of the police had been lawful . In particular , they had failed to give any reasons why they considered that the actions of the police after CARDINAL or TIME on DATE , including the firing of CARDINAL rocket propelled grenades , had been warranted , especially in view of the fact that the evidence showed that after that time Mr PERSON had not resisted or fired at the police . Lastly , it could not be categorically concluded that Mr PERSON \u2019s death had been caused by a hand grenade which he had had activated himself ; a number of other explosive devices had been used by the police .","Accordingly , on DATE ORG sent the case back to the investigator , instructing him to ( a ) ask ballistics experts to identify all explosive devices which had been used , explain their mode of operation , and express their opinion on whether the smoke bombs fired at the house had been capable of creating a concentration of gases sufficient to cause the death of PERSON ; ( b ) seek the opinion of forensic and ballistics experts on the exact time of PERSON PERSON \u2019s death , on the origin of the metal fragments found in his body , and on whether the death had resulted from a hand grenade ; ( c ) interview again the participants in the operation and ask them why it had been deemed necessary to use a grenade launcher and other explosive devices at a time when PERSON had no longer been showing any signs of resistance ; ( d ) establish whether boobytraps had indeed been planted in or around the house ; and ( e ) identify the officers who had caused damage to the house and ascertain whether their actions had amounted to a criminal offence . It went on to note that Mr PERSON \u2019s heirs had not been given an opportunity to acquaint themselves with the materials in the case file , which had been a serious breach of the rules of procedure .","The investigator asked several experts to draw up the reports requested by the prosecuting authorities .","In a report drawn up on DATE an expert said that no devices which could be described as boobytraps had been found in PERSON PERSON \u2019s house or yard . CARDINAL fully operational defensive hand grenades had been found inside the house .","In their report , drawn up on DATE , the ballistics experts described the characteristics of the weapons and ammunition used during the operation or found on the spot ( PERSON assault rifle and ammunition for it , antitank rocket propelled grenades , teargas grenades , small wallblasting explosives , a defensive hand grenade ) , and said that the wall of the house had been demolished by the antitank rocket propelled grenades fired during the operation . They also said that from the materials in the case file it appeared that no teargas grenades had fallen inside the house , and that the concentration of any such gas in the room where PERSON PERSON had been standing had not been high enough to kill him .","The combined forensic and ballistics expert report , drawn up by a forensic doctor , an army weapons specialist and an expert in automatic weapons , became ready on DATE . It said that the complete charring of PERSON body prevented a medical determination of the time of his death . The explosive device which had killed him had been very close to his body at the moment of detonation , with the result that the body had suffered the impact of all components of the explosion : the detonation , the gases , parts of the explosive , soot , parts of the device \u2019s casing and fragments of it . Mr PERSON \u2019s body had been destroyed and had sustained deep burns , to the point of charring , and multiple wounds from the device \u2019s casing and filling . The metal fragments found inside the body showed that the device was a hand grenade , of the type used in the NORP army , consisting of a metal casing and , underneath it , plastic shells containing QUANTITY to CARDINAL pellets . All of those had impacted on Mr PERSON \u2019s body . The mechanism of the grenade and the force needed to pull its lever were such as to prevent accidental detonation , including detonation resulting from the closeby detonation of another device , which meant that Mr PERSON had been fully conscious of his actions when activating the grenade . He had thus blown himself up , as could be seen from the safetypin loop found on the third finger of his right hand . However , it was probable that the charring of his body was due to a secondary fire in the room , and had occurred after his death .","On DATE ORG again decided to discontinue the investigation . It set out its findings of fact and the conclusions of the expert reports , and reasoned as follows :","\u201c ... The initial steps taken by officers of ORG with a view to [ Mr ] PERSON \u2019s localisation and arrest were lawful . When he used firearms against them , they duly reported that to their superiors . They , in turn , lawfully decided to use firearms as a means of last resort , in accordance with section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of ORG [ DATE ] . As [ Mr ] PERSON refused to obey their order to surrender and continued to fire at them , it was lawful to bring in the antiterrorism squad . This was in line with section CARDINAL(CARDINAL)(CARDINAL ) of the [ Act ] and based on a decision of the Minister of ORG . The police were confronted with an individual who had committed numerous criminal acts and had numerous convictions and who , during an operation for his arrest to enforce a sentence ... , put up armed resistance . This was established on the basis of the statements made by the officers and by [ Mr ] PERSON \u2019s relatives . The fact that he fired upon the police is also confirmed by the bullet - hole in the left mudguard of [ a police car ] and the asbestos cement sheets placed outside the house .","The steps taken by the officers of the [ antiterrorism ] squad after their arrival were also lawful . They were faced with an urgent special operation which required fast appraisal of the situation and decisionmaking . Their decisions were taken on the basis of the situation described above . After [ Mr ] PERSON failed to heed the advice of his relatives and the psychologists to turn himself in , it was lawful and in line with section CARDINAL(CARDINAL)(CARDINAL ) of the [ Act ] and regulations CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) to resort to the use of pyrotechnical devices and explosives . CARDINAL of the walls of the ground floor of the house was blown up with a view to storming it and making a passage to the inside . However , in view of the explanations of [ the individual who had worked on the house ] about booby traps in various unknown locations in and around the house and the darkness , the attack was postponed . It was only at that point that a decision was taken to use antitank grenades , in line with regulation ORG ) . The purpose was to diffuse any explosive devices and clear a passage for the storming party , which was supposed to attack in the morning . As a result of the firing of those grenades , part of the ground floor of the building was destroyed . When the goal had been achieved , the firing stopped . The attack began in TIME of DATE in order to protect the health and the lives of the police officers . Then they found the body of [ Mr ] PERSON .","In this case , there was overt resistance by [ Mr ] PERSON and refusal to obey police orders . Also , before using weapons the police officers and the members of the antiterrorism squad considered the specific situation , the nature of [ Mr PERSON \u2019s ] act and [ his ] personality . They took all necessary safety measures and discontinued the use of weapons immediately after achieving their goal \u2013 opening a breach for the storming party .","The actions of the officers would be criminal only if they were socially dangerous , committed with mens rea , and punishable ... The lack of any of those characteristics makes their actions not criminal . By LAW , it is not criminal to cause damage to a person who has committed an offence in order to effect his arrest and prevent him from committing further offences , if there is no other way to carry out the arrest and if the necessary and lawful measures are not exceeded . This equally fully applies to the house used by [ Mr ] PERSON as a shelter . Since there was no other way of entering it , it became necessary to demolish part of it . The available evidence shows that the actions of the police were not socially dangerous , but socially necessary , and , indeed , the only ones possible under the relevant provisions of ORG [ DATE ] and the regulations . Therefore , there has been no criminal offence . All exculpating circumstances under LAW are in place . ...","Moreover , under section CARDINAL(CARDINAL ) of ORG [ DATE ] , the identities of the members of the special antiterrorism squad are to be kept secret , which means that they can not be held criminally liable .","The investigation categorically and unequivocally found that [ Mr ] PERSON \u2019s death was due to his blowing himself up with an offensive hand grenade which he detonated close to his body . No officers are responsible for that . No other offences committed by the officers in connection with the performance of their duties were established . ... \u201d","On DATE the applicants sought judicial review of the discontinuance . They argued that not enough evidence had been gathered on the time and the causes of Mr PERSON \u2019s death , and that only experts in pathology would be able to give an informed opinion on those points . It was also hard to believe that Mr PERSON had blown himself up with a hand grenade . He was a righthander and the grenade safetyloop was found on a finger of his right hand , whereas it was highly unusual for someone to draw the safetyloop of a hand grenade with his strong hand and hold the grenade itself with his weak hand . The investigation had not done enough to elucidate that paradox , which was central to its conclusions . It was also incomprehensible how the experts , none of whom was a psychologist , were able to give an opinion about Mr PERSON \u2019s state of mind before his death . No explanation was provided about the type of explosives used at TIME on DATE to blow up the hole in the wall of the house . This seriously weakened the prosecutor \u2019s conclusion that the metal pellets found in PERSON body were from a hand grenade . After TIME on DATE the police were not acting in selfdefence because Mr PERSON had not fired any shots at them after that time . They clearly overstepped the limits set by LAW and did not try to contact him or arrest him without using force after that time . The conclusion that a grenade launcher was needed to diffuse possible booby traps could not withstand scrutiny . No such traps were found , and it was absurd to believe that trained police officers could suppose that such traps had been laid around a house whose yard was used by PERSON , his family and domestic animals . The police apparently only resorted to using a grenade launcher to speed up the operation . It was also telling that the names of the officers who ordered the use of a launcher were not mentioned in the prosecutor \u2019s decision . Lastly , the applicants pointed out that this ORG \u2019s caselaw under LAW required that there should be an effective official investigation when individuals have been killed as a result of the use of force by the police .","On DATE ORG , sitting in private , decided to uphold the discontinuance in the following terms :","\u201c ... After fully checking the materials in the case file , the court comes to the only possible conclusion , namely , that the decision to discontinue the proceedings was correct , wellfounded and lawful .","The investigation was objective , all - inclusive and comprehensive . The investigating and the prosecuting authorities have taken all necessary steps to establish the truth . All circumstances surrounding the main fact \u2013 the cause of [ Mr ] PERSON \u2019s death DATE have been examined . The authorities have not committed serious breaches of the rules of procedure . The remitting of the case for additional investigation was a major factor in that respect . The prosecutor \u2019s conclusions are correct , wellfounded , not internally inconsistent , accurate and fully correspond to the evidence and the facts . To come to them , the prosecutor , along with an assessment of the available materials , has taken into account the constant caselaw of ORG and academic studies of criminal law .","The prosecutor \u2019s conclusion that the proceedings should be discontinued corresponds to the totality of the evidence , which has been precisely analysed and assessed . The court finds that the prosecutor was right to conclude that the police were acting in a situation falling under LAW [ of LAW ] . They were aiming to arrest an individual who had committed an offence , and who had been convicted and sentenced by means of a final decision . He refused to obey their orders and put up fierce armed resistance . His actions consisted in an attack against the police that seriously endangered their lives . This leads to the incontestable and unequivocal conclusion that the police officers were acting in pursuance of their duties and that their actions were correct , lawful and adequate in a situation which was extreme , critical and gravely dangerous for their health and lives .","The court fully shares the remaining conclusions of the prosecutor ... which it considers correct and accurate .","On that basis , the court finds that the arguments raised in the application [ for judicial review ] are groundless and illfounded . Firstly , the arguments ... that the \u2018 prosecutor \u2019s findings about the time of death are unconvincing and solely based on the conclusions of the medical expert \u2019s PERSON ... are groundless . If the [ applicants\u2019 lawyers ] had bothered to acquaint themselves with [ the ] evidence ... , they would not have reached those conclusions . The prosecutor \u2019s findings about the causes and the time of [ Mr ] PERSON \u2019s death were based not only on the conclusions of the medical expert \u2019s report and the complex ballistics and medical experts\u2019 report , but also on the statements of all eyewitnesses . The lawyers should be aware that a fact , namely the time and the causes of death , can be established through all types of evidence allowed under the rules of criminal procedure , not solely expert reports . Since the PERSON conclusion , whose accuracy the court does not doubt , is supported by an abundance of other evidence , including eyewitness statements , the court finds this fact to be unequivocally established ... For that reason , the court finds that the time and the cause of [ Mr ] PERSON \u2019s death have been unequivocally established , and that this has been accurately described in the prosecutor \u2019s decision . The court therefore finds the [ applicants\u2019 ] arguments in that connection unfounded and not corresponding to the evidence in the case . For the same reasons , the court finds no force in the [ applicants\u2019 ] arguments relating to the lack of clarity of the prosecutor \u2019s decision about the type of expert report to be ordered by the investigator . The court reiterates that if the [ applicants\u2019 lawyers ] had read the complex medical and ballistics report , they would have understood this alleged lack of clarity ...","The [ applicants\u2019 ] assertion relating to the \u2018 ORG and the \u2018 weak\u2019 hand of [ Mr PERSON ] is also groundless and lacking legal logic . The safetyloop from the detonator of a grenade , the specific dismemberment of the body in the middle ( near the stomach and the groins ) , and the remains of a defensive grenade ( pellets and fragments ) in the body lead to the only possible conclusion that [ Mr PERSON ] blew himself up in the way described in detail by the prosecutor ... This unequivocally proves that the grenade was not thrown , as asserted by the [ applicants ] , because if that were the case there would be no pieces of a detonated grenade on the body of [ Mr ] PERSON . The court finds whether [ Mr ] PERSON was right or lefthanded irrelevant and for this reason shall not engage in further discussion on that point .","The complex medical and ballistics experts\u2019 report gave a conclusion about [ Mr ] ORG \u2019s psychological state at the time of his \u2018 self - detonation\u2019 , which the court finds accurate and corresponding to the evidence analysed by the experts . It is necessary to note that the \u2018 psychological\u2019 state of [ Mr ] PERSON has been analysed and assessed by the experts in the context of the grenade \u2019s specificity as a type of weapon , the particularities of its construction and the manner in which it needs to be handled and detonated . On that basis , the court finds no force in the [ applicants\u2019 ] argument concerning the mandatory participation of a psychologist in the elucidation of the above fact .","The [ applicants\u2019 ] assertion that there is no explanation about types of explosives used again shows that [ their lawyers ] have not acquainted themselves with all the evidence . The court finds it illfounded and unsupported by any arguments . The experts have given an accurate , clear and comprehensive description of the type and character of all types of explosives and munitions used [ in the operation ] .","The court does not share the [ applicants\u2019 ] arguments ... concerning the alleged incorrectness of the prosecutor \u2019s decision . The above considerations lead it to the conclusion that the police were acting in a situation which falls within the ambit of LAW ... It must also be observed that the [ applicants\u2019 ] arguments are onesided and analyse solely the lawfulness of the actions of the police without commenting on the lawfulness of the actions of [ Mr ] PERSON . Basing itself on the rules of objectivity and impartiality , and analysing the direct and circumstantial evidence in isolation and jointly , the court finds the [ applicants\u2019 ] arguments incorrect and illfounded .","The court fully shares the [ applicants\u2019 ] assertion that , in view of the requirements of the [ Convention ] and the criteria developed by ORG in its caselaw , there must be a thorough and comprehensive investigation whenever there has been an interference with a person \u2019s right to life during a police operation . However , the court does not share the [ applicants\u2019 ] view that there has been no such investigation in the present case . On the contrary , in view of what has been said above , the court finds that the investigation was objective , comprehensive and full , that the authorities have taken all necessary steps to uncover the truth , and have taken their decisions freely and after assessment of relevant facts . The prosecutor \u2019s conclusions are correct , accurate and wellfounded , and the court fully shares them .","In view of above , the court ... finds that the decision to discontinue the proceedings ... has to be upheld as lawful and wellfounded . \u201d","The case file contains no information on whether at the time of his death Mr PERSON had a valid title to the house or the plot of land on which it had been erected . It does not appear that he had applied for or obtained a building permit for the house . During the investigation is was established that on DATE the ORG lands commission , in proceedings brought by the first applicant ( Mr PERSON \u2019s son ) under the lands restitution laws , decided to restore the plot to the heirs of an ancestor of PERSON .","The applicants presented a notary deed showing that on DATE the first applicant bought from third parties a plot of land in the area where the house is situated . From certificates issued by the cadastre authorities it appears that this plot is the same on which the Mr PERSON \u2019s house had been built .","The applicants also presented a certificate of DATE in which the building control department of the municipality of ORG said that the house was a tolerable building within the meaning of the building control legislation . Under that legislation , tolerable buildings are those that have not been erected pursuant to a building permit but which nonetheless comply with the applicable zoning plans and building regulations , and have either been built before a certain date or been declared to the authorities within certain timelimits . Tolerable buildings are not subject to demolition .","Section CARDINAL of ORG , as in force at the material time , provided , in so far as relevant :","\u201c ( CARDINAL ) The police may use firearms as a means of last resort :","NORP in cases of armed attack or threat to use firearms ;","...","in selfdefence [ or the defence of others ] ;","NORP after giving a warning , to arrest a person who has committed or is committing a publicly prosecutable offence , if he or she resists or tries to escape ;","...","( CARDINAL ) When using firearms the police are under a duty to protect , as far as possible , the life of the person against whom they use force , and not put in danger the life and the health of others . \u201d","The wording of section CARDINAL(CARDINAL)(CARDINAL ) , ( CARDINAL)(CARDINAL ) and ( CARDINAL ) of ORG , currently in force , repeats verbatim that of section CARDINAL(CARDINAL)(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW .","DATE . On DATE ORG enacted a bill amending section CARDINAL of LAW ; the amendment came into force on DATE . The words \u201c as a means of last resort \u201d in section ORG ) were changed to \u201c only where absolutely necessary \u201d , and the words \u201c to protect , as far as possible \u201d in section CARDINAL(CARDINAL ) were replaced by \u201c do everything possible to protect \u201d . A new subsection CARDINAL was added to section CARDINAL , providing that \u201c [ t]he police shall discontinue the use of firearms immediately after attaining its lawful aim \u201d , as well as a new subsection CARDINAL , providing that \u201c [ PERSON shall be prohibited to use firearms to arrest or prevent the escape of a person who is about to commit or has committed a nonviolent offence if that person does not pose a danger to the life or health of another \u201d . A new section DATE was added , providing that \u201c [ CARDINAL planning and control of the use of physical force , auxiliary means and firearms by the police ... shall include [ the taking of ] measures to attain the lawful aim at minimal risk to the life and health of the citizens \u201d . In the explanatory notes to the bill the ORG had referred to , inter alia , the need to bring domestic law fully into line with the applicable international standards and the ORG \u2019s caselaw .","The special antiterrorism squad was a unit of ORG whose task was to , among other things , combat terrorism and prevent and uncover serious offences ( section CARDINAL of LAW ) . It could arrest or neutralise persons who had committed especially dangerous offences and who were putting up or likely to put up armed resistance ( section CARDINAL ) ) . The squad \u2019s intervention had to be authorised in writing by the Minister of ORG in each case ( section CARDINAL(CARDINAL ) ) . Its mode of operation was governed by regulations issued by the Minister ( section CARDINAL(CARDINAL ) ) .","Those regulations , which were apparently not published , were issued by the Minister on DATE . Under regulation CARDINAL , when carrying out a special operation the squad had to set up an appropriate organisational structure . However , the overall control of a given operation was to be ensured by the head of the authority which had requested the use of the squad or a person designated by him or her ( regulation CARDINAL ) ) . The squad \u2019s plan of action in a given operation had to be included in the plan of the requesting authority ( regulation CARDINAL ) . In its operations the squad could use , inter alia , firearms and grenade launchers ( regulation CARDINAL ) ) , pyrotechnical devices and explosives ( regulation CARDINAL(CARDINAL ) ) and chemical substances ( regulation CARDINAL ) ) .","By section CARDINAL(CARDINAL ) of ORG , \u201c in the performance of the squad \u2019s tasks , the identity of its members [ was ] to be kept secret \u201d . This rule currently features in section CARDINAL(CARDINAL ) of ORG and extends to all police officers who take part in armed police operations for the arrest of dangerous offenders who put up armed resistance . Regulation CARDINALs of the regulations for the application of LAW repeats it with reference specifically to the members of the special antiterrorism squad .","Article CARDINAL \u00a7 CARDINAL of LAW DATE , added in DATE , provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .","Under LAW ( CARDINAL ) of LAW , public prosecutors were to discontinue a preliminary investigation if they found that , inter alia , the acts alleged did not constitute an offence . Article CARDINAL \u00a7 \u00a7 DATE , as in force at the material time , provided that the decision to discontinue a preliminary investigation was reviewable by a firstinstance court whose decision was final .","Section CARDINAL of ORG to LAW DATE ( ORG \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 , \u043f\u0440\u0438\u0447\u0438\u043d\u0435\u043d\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 ) , in DATE renamed the ORG and ORG ( ORG \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0438 \u043e\u0431\u0449\u0438\u043d\u0438\u0442\u0435 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 \u2013 \u201c the DATE LAW ) , provides that the ORG is liable for damage suffered by individuals ( and since DATE also legal persons ) as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties .","NORP The general rules of the law of tort are set out in sections CARDINAL of ORG DATE ( ORG \u0437\u0430 \u0437\u0430\u0434\u044a\u043b\u0436\u0435\u043d\u0438\u044f\u0442\u0430 \u0438 \u0434\u043e\u0433\u043e\u0432\u043e\u0440\u0438\u0442\u0435 \u2013 \u201c the DATE LAW ) . Section CARDINAL(CARDINAL ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . LAW provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Legal persons can not incur liability under section CARDINAL(CARDINAL ) , as they can not act with mens rea . They may , however , be vicariously liable under section CARDINAL for the tortious conduct of individuals employed by them ( \u043f\u043e\u0441\u0442. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. , ORG , GPE ) . CARDINAL of the prerequisites of the liability under sections CARDINAL of the DATE Act is wrongfulness of the impugned conduct ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , ORG , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 ) . The NORP courts have on occasion examined claims against the authorities under section DATE ( see the domestic cases cited in First Sofia Commodities EOOD and PERSON v. GPE ( dec . ) , no . CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":["2"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93812","languageisocode":"ENG","respondent":"GEO","branch":"ADMISSIBILITY","date":2009,"docname":"NAZARETIAN v. GEORGIA","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by PERSON PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were successively represented by their Agents , Mr PERSON and Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In a judgment of DATE the ORG - Nadzaladevi District Court in GPE ordered that a DATE allowance be paid to the applicant by her former spouse until their child , born in DATE , reached the age of majority . That judgment became binding on DATE .","As disclosed by the case file , since the debtor failed to comply with this judgment , the applicant obtained a writ of execution from ORG and requested , on an unspecified date , the initiation of enforcement proceedings . The bailiffs , resorting to a number of forcible measures , retrieved from the debtor the child allowance for DATE .","As further disclosed by the case file , on DATE the applicant requested , for unspecified reasons , the discontinuation of the enforcement proceedings . According to a receipt paper signed by the applicant on DATE , the bailiff handed to her all the case materials , including the enforcement writ .","On DATE the applicant , claiming that her former spouse had a higher income than that acknowledged in the judgment of DATE , requested that the allowance be increased ( \u201c the second set of child allowance proceedings \u201d ) . Her claim was found to be unsubstantiated by several instances , and , lastly , by ORG of GPE on DATE .","Subsequent to the termination of the second set of child allowance proceedings , the applicant requested , either in DATE or DATE , the bailiffs to proceed with the enforcement of the judgment of DATE . ORG of ORG ( \u201c the ORG \u201d ) replied in DATE , reminding the applicant of the fact that the enforcement proceedings had been discontinued at her request . If she wished to have those proceedings re - opened , she had to re - submit the relevant writ of execution , as required by LAW of DATE ( \u201c the Enforcement Act \u201d ) .","Pursuant to the applicant \u2019s request , the ORG - Nadzaladevi District Court issued , on DATE , another writ of execution for the judgment of DATE , and on DATE the enforcement proceedings were formally reopened . However , since the writ of DATE indicated an invalid address for the debtor , the bailiff sent the document back to the applicant on DATE unenforced .","On DATE ORG , acting in reply to ORG enquiry about the cause of non - enforcement , reminded the applicant of her obligation to provide an enforcement writ with the debtor \u2019s correct address , without which information no enforcement measures could be undertaken .","Section CARDINAL \u00a7 CARDINAL","\u201c Bailiffs at Enforcement Offices [ of ORG ] shall be responsible for the execution of the decisions provided for hereunder . \u201d","Section CARDINAL \u00a7 CARDINAL","\u201c Bailiffs shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions , to explain to parties their rights and responsibilities , and to assist in the protection of their rights and legal interests . \u201d","Pursuant to section QUANTITY , an appeal against any procedural decision , action or omission of the bailiff lay to a court .","Section CARDINAL \u00a7 CARDINAL stated that enforcement proceedings could not be launched without the relevant writ of execution .","Pursuant to section DATE , the reasonableness of the decision to discontinue the enforcement proceedings could be reviewed by a court at the creditor \u2019s request .","Pursuant to ORG CARDINAL - CARDINAL , the ORG could be sued for the harm done by action or omission of any public servant as well as by the implementation of a lawfully issued legal - administrative act . In such proceedings , the relevant provisions of LAW could be applied , if necessary .","Pursuant to LAW , damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96165","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF NARIN v. TURKEY","importance":3,"conclusion":"Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicants were born in DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in ORG .","On DATE , at TIME , clashes occurred in the district of GPE in the province of ORG , between the ORG ( ORG of Kurdistan , an illegal organisation ) and the security forces , subsequent to the killing of CARDINAL gendarmes and grave injury of CARDINAL other gendarmes in a military vehicle by ORG militants . At that time the applicant , PERSON and his father , PERSON , were in ORG , which belonged to them . During the clash some other individuals from the town and hotel customers joined them in the basement of the hotel to seek shelter from the clash . There were a total of CARDINAL people hiding in the basement of the hotel .","According to the applicants ' version of events , at TIME the security forces raided the hotel and gathered the people on the ground floor . They singled out Adulvahit PERSON from the crowd and took him into the hotel director 's office . After a while the applicant , PERSON , heard gunshots coming from the office . The security forces then allegedly poured petrol on the floor and set the hotel on fire .","On DATE CARDINAL incident reports describing the events in question were prepared and signed by a number of gendarme officers who took part in the clashes . According to this report , on DATE , at TIME , ORG militants opened fire on a military vehicle on a main street in GPE . As a result , CARDINAL gendarmes died and CARDINAL were severely injured . Hearing the gunfire , security forces arrived on the scene . ORG militants also fired at them and the security forces returned fire . The clashes , which lasted until TIME , caused the destruction of a number of vehicles and some buildings . It was understood that the real aim of the ORG members was to take control of ORG and to seize the weapons therein . Some of the ORG militants hid in ORG and opened fire on the security forces . When leaving the town they set the hotel and a number of other buildings on fire . When they were informed that there was a burned body at the hotel , a team of security forces arrived at the hotel in the TIME of DATE . They found an unidentifiable burned body , a PERSON rifle and QUANTITY empty cartridges there . The security forces noted that all the furniture in the hotel had been burned , there were a number of bullet holes in the walls and gas cannisters found in the kitchen had exploded as a result of the fire and had caused massive damage to the building . A sketch map describing the state of the hotel and location of the body was also drawn up by a gendarme officer .","On DATE , at TIME , ORG arrived at ORG with a doctor . They conducted a classical autopsy and an on - site investigation . The on - site investigation report noted that a burned body was lying in one of the ground - floor rooms of the hotel . The report also contained PERSON testimony that CARDINAL expert sergeants , whose names he did not know but whom he could identify if shown , took his father to the director 's office . He then heard gunshots coming from that direction , and saw the security forces throw grenades into the room . He further stated that GPE , GPE , GPE , and the teachers PERSON , GPE , GPE and GPE , who were in the hotel at the time , also witnessed the incident . The report noted that CARDINAL discharged bullet cartridges were found QUANTITY from the body . Neither PERSON nor the deceased 's wife PERSON could determine whether the burned body was that of ORG .","ORG took statements from CARDINAL gendarmes who were injured in the course of the clashes . They stated that they had come to GPE from ORG in order to ensure security . When they arrived in GPE they were attacked by members of the ORG and wounded as a result of the gunfire .","On DATE ORG issued a decision of non - jurisdiction and referred the case to ORG office at ORG .","On DATE ORG issued a decision to join the investigation files concerning the killing of CARDINAL gendarmes and PERSON , since both had occurred in the course of the events in GPE .","On DATE the public prosecutor at ORG took statements from the deceased 's CARDINAL sons and CARDINAL persons who had witnessed the events . The applicant PERSON repeated the statement he had made to the public prosecutor during the on - site investigation . He further stated the following :","\u201c During the events in question , I was with the deceased ( PERSON GPE ) . The hotel was under gun and rocket fire . I locked the doors of the hotel and went down to the basement together with the customers for safety reasons . They ( the soldiers ) broke down the door and entered the hotel . My father was alive and holding my hand . CARDINAL expert sergeants who work in GPE , namely GPE and GPE , hit my hand and took my father to the director 's room . I heard a sound of gunfire from the director 's room . They had already locked down the basement when they took my father to the director 's room . When the gunfire ended , they took us to the lounge and told us to take off our jackets . We took off our jackets . They poured petrol on us . However , they did not burn us . They then carried the jackets into the director 's room . They poured petrol on my father and burned him . They left CARDINAL hand grenades in the director 's room . These bombs exploded CARDINAL after the other . They burned everything in the hotel . The expert sergeants whom I have mentioned above caused the death of my father . There were CARDINAL customers who witnessed this event . I request that criminal charges be brought against [ the expert sergeants ] ... \u201d","Azattin Narin , who is another of the sons of the deceased , stated that he had been in GPE at the time of the events . He had also heard that CARDINAL expert sergeants , PERSON and GPE , had caused the death of his father . PERSON and ORG , who were customers at ORG at the time of the events , gave statements in line with PERSON . They added that the security forces took them to the station after the incident , but released them without taking statements from them .","In addition to the above statements , the applicants ' representative submitted to the ORG statements given by another witness , PERSON , on DATE . According to this witness , who sought shelter in the ORG during the clashes , ORG was separated from the rest of the group and taken to the director 's room in the hotel . The witness then heard gunshots coming from that room . The soldiers threw CARDINAL hand grenades and the hotel caught fire . The witness was taken to the gendarme station together with other people and released afterwards .","On DATE and DATE ORG took statements from GPE and GPE in relation to the allegations concerning the killing of PERSON . PERSON and PERSON denied the allegations that they had been involved in the killing of PERSON and claimed that they had taken part in the clashes against the ORG in order to ensure security in GPE . They had seen that ORG and a number of other buildings had caught fire and stated that they had gone back to their barracks when the clashes were over .","In a letter dated DATE ORG requested ORG in GPE to provide information concerning the location of and duties assigned GPE and PERSON on DATE .","In a report dated DATE , signed by a gendarme sergeant and CARDINAL gendarmes , it was stated that the location of and duties assigned to GPE and PERSON on DATE were unknown , since there was no record .","It transpires from the documents submitted by the parties that since DATE no further steps have been taken to identify the perpetrators of the killing of PERSON .","On DATE , CARDINAL of the sons of ORG applied to ORG for an assessment report of the damage caused to the hotel in order to lodge actions for compensation .","On DATE the applicants applied to ORG ( \u201c the Ministry \u201d ) for compensation for the loss they had suffered as a result of the death of their relative and the damage done to the hotel . ORG rejected the request .","On DATE the applicants brought an action for compensation in ORG against ORG , for the damage they had suffered in respect of the death of their relative ( \u201c first set of proceedings \u201d ) . In their application to the court the applicants noted that the perpetrators of the killing of PERSON were unknown . Although the officials claimed that he had been killed and that his hotel had been burned down by members of the ORG during the clashes , the witnesses stated PERSON had been killed by the security forces . Notwithstanding who killed the victim , the ORG was responsible for the death of the victim and was obliged to compensate for the damage resulting from his death and the destruction of the hotel .","On DATE the applicants brought a second action against the Ministry , claiming compensation in respect of the material damage caused to the hotel ( \u201c second set of proceedings \u201d ) .","By decisions of CARDINAL DATE and DATE ORG decided that it had no jurisdiction over the cases .","On DATE and DATE ORG set aside ORG decisions of non - jurisdiction and remitted the cases to it for examination .","On DATE ORG partly accepted the applicants ' request and awarded them MONEY ( ORG , MONEY ( ORG ) at the material time ) in compensation for the pecuniary damage caused to the hotel .","On DATE ORG , relying on the ORG 's strict liability and \u201c the social risk theory \u201d , awarded the applicants a further GPE CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL at the material time ) in compensation for the pecuniary and non - pecuniary damage they had suffered in respect of the death of their relative . This judgment was upheld by ORG on DATE .","On DATE ORG upheld the judgment of ORG concerning the damage caused to the hotel .","On DATE , the administration paid the applicants the sum of GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL at the material time ) in compensation for the death of their relative and damage done to the hotel .","In DATE , the applicants applied to ORG office at ORG requesting information about the outcome of the criminal investigation into the death of their relative .","On DATE ORG informed the applicants that the investigation was still pending . Following this response , on DATE the applicants lodged their application with ORG .","According to ORG report of CARDINAL October CARDINAL , the investigation into the killing of PERSON and the CARDINAL gendarmes is still pending .","Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation . If the claim is rejected in whole or in part , or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the LAW provides :","\u201c All acts or decision of the authorities are subject to judicial review ...","The authorities shall be liable to make reparation for all damage caused by their acts or measures . \u201d","That provision established the ORG 's strict liability , which comes into play if it is shown that , in the circumstances of a particular case , the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to prove a tortuous act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22517","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2001,"docname":"ABRIAL and OTHERS v. FRANCE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicants are NORP nationals . They are all members of ORG ( \u201c LAW \u201d ) , which has CARDINAL members . They were represented before the ORG by Mr M. de Guillenchmidt , a lawyer practising in GPE .","DATE CARDINAL NORP families purchased bonds issued by ORG for a total sum of MONEY , which represented a capital of QUANTITY of gold . In DATE ORG allowed the bonds to be listed on the GPE stock exchange . In a decree of DATE ORG decided to cancel all the bonds issued by the tsarist regime .","As soon as ORG took power DATE and over DATE ORG promised on a number of occasions to press the bondholders\u2019 claims . After the signing of LAW secured the re - assignment to itself of QUANTITY of gold , which was part of the gold paid by GPE to GPE under LAW . In a statement made to the ORG on CARDINAL April CARDINAL the Prime Minister declared that the said gold had been definitively made over to GPE in reduction of GPE \u2019s debt . In DATE the French State held MONEY worth of NORP bonds in GPE . In DATE the above - mentioned QUANTITY of gold were officially assigned to reducing GPE \u2019s debt to GPE .","In a treaty of CARDINAL DATE the NORP and ORG undertook to solve their financial dispute quickly . That treaty was not ratified , however .","In DATE , when the NORP regime changed , the NORP authorities initiated negotiations again . An agreement of DATE , which was ratified but not applied , set out a solution to the dispute relating to the financial and material aspects of the property and interests of individuals and legal entities in both countries .","In a memorandum signed CARDINAL DATE the Government of ORG undertook to pay MONEY ( MONEY ) in DATE instalments . Under the terms of that agreement","\u201c The Government of GPE and the Government of the Federation of GPE agreed the following :","The Government of the Federation of GPE shall pay ORG the sum of MONEY in full and final settlement of mutual debts between GPE and GPE accumulated prior to CARDINAL DATE .","The sum shall be paid as follows : CARDINAL DATE instalments of MONEY payable on DATE and DATE .","Neither the NORP party nor the NORP party shall , on their own behalf or on behalf of NORP or NORP natural and legal persons , present to each other or support in any way any financial debts or debts in rem whatsoever accumulated prior to CARDINAL DATE .","All the debts shall be deemed to have been fully and finally settled by payment of the entire sum referred to in the present memorandum .","The parties agree that , on the basis of the present memorandum , they shall reach an agreement as soon as possible on the payment of GPE and GPE \u2019s mutual debts . \u201d","According to the applicants , that sum was PERCENT of the debts converted to current value .","By Decree no . CARDINAL - CARDINAL of DATE a \u201c monitoring commission \u201d was set up within the ORG d\u2019Etat with the task of proposing to the Government a means of identifying the qualifying bondholders according to the NORP basis and agreements , a method of assessing the value of the qualifying bonds and arrangements for paying compensation .","On DATE a supplementary agreement was signed between ORG and ORG . LAW that agreement listed the NORP debts which GPE agreed to waive and LAW listed the NORP debts in respect of which GPE undertook to make no further claim . Article CARDINAL set out the arrangements for repayment by GPE of its debts as established in the DATE memorandum . Article CARDINAL added that all the debts would be deemed to have been fully and finally settled by the payment of the entirety of the sum referred to . Article CARDINAL provided that on the date of entry into force of the agreement neither of the parties would take action against the other on the basis of any financial debts or debts in rem whatsoever accumulated prior to CARDINAL DATE .","On DATE and DATE , GPE paid the first CARDINAL instalments provided for in the agreement in a total sum of MONEY . Further instalments were sent to GPE in DATE , on DATE and CARDINAL DATE and , lastly , in DATE , amounting to CARDINAL instalments in all .","In a government PERSON ( no . CARDINAL ) filed on DATE , the Prime Minister acknowledged , in the statement of reasons , that the NORP agreements of CARDINAL DATE and DATE did not include any provision for others and produced no effects for the rights of third parties . On DATE ORG adopted a PERSON , which was also adopted by the ORG on DATE , authorising approval of the above - mentioned agreements . In a Law of DATE ( no . CARDINAL - CARDINAL ) ORG authorised the ratification of those agreements .","Section CARDINAL of Law no . CARDINAL of DATE and LAW no . CARDINAL of DATE provided that the number of bondholders should be identified . This was done over a period of DATE from the date of entry into force of the decree . On DATE the provisional results obtained by ORG showed CARDINAL declarations in respect of a total of ORG bonds . On DATE the Minister for the ORG stated that the number of bondholders was , to be more precise , CARDINAL and the number of bonds CARDINAL . On DATE ORG declared that the number of bondholders stood at CARDINAL and that there were CARDINAL bonds .","According to the applicants , those figures were inaccurate . Their attempts to obtain clarification of this point remained fruitless . On DATE the association representing the applicants ( the ORG ) served official notice on the Minister for ORG to publish , d\u00e9partement by d\u00e9partement , a DATE breakdown of the results of the survey , the number of bonds per category , a breakdown of the CARDINAL types of qualifying bonds taken into account and justification for the increase in the number of holders and bonds as compared to the figures given at DATE . On CARDINAL DATE an identical notice was served on the new Minister for ORG .","On DATE the ORG served formal notice on ORG to pay the sum of MONEY in honour of its debt plus interest .","On DATE the embassy of GPE replied as follows :","\u201c In accordance with the memorandum of agreement of CARDINAL DATE between ORG of GPE and the Government of the Federation of Russia regarding final settlement of mutual financial debts and debts in rem accumulated before DATE , ORG undertook not to submit to its NORP counterpart , either on its own behalf or on the behalf of NORP natural or legal persons , or to support in any other manner financial debts or debts in rem of any kind accumulated prior to CARDINAL DATE .","The legal summons ... and service thereof on the embassy of ORG constitute a breach of the above - mentioned undertakings .","It is for the NORP party to explain the above - mentioned provisions to the natural and legal persons concerned and to the courts in order to prevent any further misunderstandings in future . \u201d","Various other legal actions instituted in GPE were equally unsuccessful .","On DATE various bondholders applied to the judge of the GPE tribunal de grande instance responsible for the execution of judgments for registration of a legal charge on real property situated in GPE belonging to GPE . In an order of DATE the judge found that the bondholders\u2019 claims were valid in theory . He considered that the debt subsisted and \u201c was of undeniable public interest \u201d despite payment of the sum of MONEY . However , he refused to charge the property in question because it was protected by diplomatic immunity .","On DATE some members of the ORG lodged an application with the judge of the GPE tribunal de grande instance responsible for the execution of judgments for registration of a provisional interim legal charge on shares of ORG . However , that application was also dismissed on the ground that \u201c the principle of the applicant \u2019s claim can not be considered valid ... it can not be inferred from the NORP State \u2019s inertia that recovery of the debt is in jeopardy \u201d .","In a judgment of CARDINAL DATE the ORG d\u2019Etat acknowledged that the public authorities were liable for the loss which international agreements to which the ORG was a party might occasion for individuals . In the ORG g\u00e9n\u00e9rale d\u2019\u00e9nergie radio - \u00e9lectrique case , the applicant , whose property had been requisitioned by the NORP army , claimed to be entitled to compensation from ORG on the basis that there had been a breach of equality vis - \u00e0 - vis public burdens as a result of the signing by ORG of international agreements which prevented it until an unspecified date from pursuing its claim against ORG .","The PERSON d\u2019Etat held that \u201c the responsibility of the ORG is liable to be engaged on the basis of equality of citizens vis - \u00e0 - vis public burdens to ensure that loss arising from agreements signed by GPE with other GPE and lawfully incorporated into domestic law is compensated , on condition that neither the LAW itself nor the LAW authorising its ratification may be construed as having intended to exclude any compensation and that the loss in respect of which compensation is claimed is sufficiently serious and is individual in nature \u201d . The PERSON d\u2019Etat concluded that the condition relating to individuality had not been fulfilled \u201c having regard to the generality of the above - mentioned agreements and the number of NORP citizens who were victims of damage analogous to the damage alleged by the applicant company \u201d ( PERSON d\u2019Etat , p. CARDINAL ) .","On DATE ORG for ORG of NORP bonds ( \u201c ORG \u201d ) , which was a different association of holders of NORP bonds from the CARDINAL of which the applicants were members , had sued ORG in ORG for compensation for bondholders . On DATE ORG dismissed the application for the following reasons :","\u201c The applicant association seeks to establish responsibility on the part of the ORG on account of the conduct of the NORP authorities , who allegedly refused to engage in negotiations with the NORP ORG and the succeeding GPE with a view to compensating its members ; the ORG \u2019s decisions in that area are inextricably linked to the conduct of international relations between the CARDINAL Governments ; accordingly , the pleadings referred to above raise a question which , by its nature , is not a subject for contentious proceedings .","The provisions of LAW No . CARDINAL to ORG can not usefully be relied upon where the interference or compliance with the right guaranteed by that LAW are not imputable to ORG ; similarly , a breach of the provisions of LAW combined with LAW No . CARDINAL can not usefully be relied upon ...","Lastly , the loss in respect of which the applicants seek compensation arises as a result of an act of a foreign ORG and can not engage the responsibility of the NORP State even in the sphere of equality vis - \u00e0 - vis public burdens ; in any event , having regard to the risks attached to the realisation of financial operations with a foreign State , the damage in respect of which compensation is sought can not be deemed to be abnormal or special ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77492","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF GASIOROWSKI v. POLAND","importance":4,"conclusion":"Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested by the police on suspicion of having committed armed robbery against a lorry driver . On DATE ORG ( S\u0105d Rejonowy ) ordered that the applicant be detained on remand for DATE . It found that in the light of the evidence obtained , in particular from his accomplices , there was a strong likelihood that the applicant had committed that offence . The court further observed that the applicant had not confessed and found that there was a risk that he might obstruct the investigation . Having regard to the severity of the penalty that could be expected , the court held that keeping the applicant in custody was necessary in order to secure the proper conduct of the proceedings . That decision was upheld on appeal on DATE .","On DATE the ORG ( PERSON ) prolonged the applicant \u2019s detention until DATE , finding that , given that the applicant had been caught in flagrante delicto , there was a strong likelihood that he had committed the offence in question . The court stressed that the applicant had \u2013 like his CARDINAL detained co - suspects \u2013 given contradictory evidence and had not confessed , which gave sufficient reasons to believe that , once released , he would obstruct the proper course of the proceedings . The applicant \u2019s continued detention was also justified by the severity of the penalty that could be expected . Moreover , evidence from ballistics and fingerprint experts \u2013 which was crucial for the determination of the role played by each co - suspect \u2013 needed to be obtained .","On DATE the ORG ( S\u0105d Apelacyjny ) ordered that the applicant be held in custody until DATE , reiterating the grounds previously given for his detention . It further held that the gravity of the charges and the severity of the likely penalty justified the prolongation of the most severe preventive measure .","On DATE a bill of indictment was filed with the NORP ORG against the applicant and his CARDINAL accomplices . The applicant was charged with attempted armed robbery and unlawful possession of a firearm . The bill of indictment specified that the applicant had been previously sentenced for similar offences . The prosecution asked the court to hear evidence from CARDINAL witnesses .","On DATE the ORG prolonged the applicant \u2019s detention until DATE , repeating the grounds that had been given in the previous decisions . It also held that the value of the goods that the accused had planned to steal and the previous criminal records of some of them made it likely that they would be given a heavy sentence .","Subsequently , apparently in DATE , ORG referred the case to ORG , finding that the latter court should deal with the matter . The ensuing jurisdictional dispute was determined on an unspecified later date by ORG . The latter court ordered that the case be referred to ORG since ORG had in the meantime been closed down . On DATE the bill of indictment was transmitted to ORG .","Meanwhile , on DATE , ORG had prolonged the applicant \u2019s detention until DATE , finding that the reasons previously given for holding him in custody were still valid .","On DATE ORG prolonged the applicant \u2019s detention until DATE . On DATE ORG ordered the applicant \u2019s continued detention until DATE . In both decisions the court relied primarily on the severity of the sentence that could be expected .","On DATE ORG dismissed the applicant \u2019s appeal against the decision of DATE prolonging his detention . It found that the applicant \u2019s continued detention on the basis of Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure remained valid . Having regard to the nature of the alleged offences , the circumstances in which they had been committed and the fact that the applicant had committed similar offences in the past , ORG found that there was a very strong likelihood that he would be given a heavy sentence . It further held that LAW established a kind of presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings .","Since on DATE the length of the applicant \u2019s pre - trial detention reached the statutory CARDINAL time - limit laid down in Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure , all further decisions prolonging his detention on remand were given by ORG .","The relevant decisions were taken on the following dates : on DATE ( extending his detention until DATE ) , DATE ( ordering his continued detention until DATE and having regard to the particular complexity of the case ) and on a later unspecified date in DATE ( extending his detention for a further period ) . In its decision of DATE , ORG found that prolongation of the applicant \u2019s detention beyond the statutory CARDINAL time - limit was justified under LAW on account of major insurmountable difficulties , referring in this connection to the above - mentioned jurisdictional dispute .","ORG listed the first hearing for DATE but the trial could not be started since the case file was with another court . CARDINAL hearings listed for CARDINAL and DATE were adjourned due to the change of the applicant \u2019s counsel and the need for the latter to prepare for the hearing . CARDINAL further hearings listed for DATE and DATE were also adjourned ( at the GPE request and because of the absence of the applicant \u2019s counsel respectively ) . As a result , the trial started on DATE . Further hearings were held on DATE , DATE , CARDINAL and DATE , CARDINAL May and DATE .","On DATE ORG convicted the applicant of attempted armed robbery and , having regard to his previous criminal record , sentenced him to seven years\u2019 imprisonment . It acquitted the applicant of the charge of unlawful possession of a firearm . It also prolonged his detention until DATE .","The prosecutor and all the defendants appealed .","On DATE ORG quashed the first - instance judgment and remitted the case . It ordered that the applicant be kept in detention pending the retrial until DATE in view of the reasonable suspicion that he had committed the offence with which he had been charged and the severity of the likely sentence .","On DATE ORG extended the applicant \u2019s detention until DATE , holding that the grounds originally given for his detention were still valid . It further held that keeping him in detention was sufficiently justified by the severity of the likely sentence and the need to secure the proper conduct of the trial . Subsequent decisions prolonging the applicant \u2019s detention were given by ORG on the following dates : DATE ( ordering his continued detention until DATE ) , DATE ( extending his detention until DATE ) and DATE ( ordering his continued detention until DATE ) . The court held that the grounds previously given for his continued detention were still valid .","On DATE ORG prolonged the applicant \u2019s detention until DATE , relying on the severity of the likely sentence and the associated risk that the applicant might obstruct the proceedings . The applicant appealed . On DATE ORG ordered the applicant \u2019s release and placed him under police supervision . It held that further prolongation of the applicant \u2019s detention was unjustified , since ORG had not put forward any arguments warranting the continued application of the most severe preventive measure . In particular , ORG had not indicated any concrete grounds which would justify the risk that the applicant might obstruct the proceedings . The applicant was released on DATE .","Prior to DATE , the applicant made numerous , unsuccessful applications for release and appealed , likewise unsuccessfully , against refusals to release him and decisions extending his detention .","On DATE ORG convicted the applicant of attempted armed robbery and sentenced him to seven years\u2019 imprisonment . The applicant appealed .","On DATE ORG upheld the first - instance judgment . The applicant \u2019s legal aid lawyer declined to file a cassation appeal against ORG judgment since he had not found any grounds on which an appeal could be based .","The applicant submits that during his detention his correspondence was censored by the authorities .","On DATE the Registry sent the applicant a letter in reply to his first letter setting out his Convention complaints . That letter , with which an application form and accompanying documents were enclosed , was delivered to the applicant after having been controlled by the authorities . The ORG \u2019s envelope bears a stamp that reads \u201c Censored . Judge \u201d ( \u201c ORG . GPE . \u201d ) , followed by a date \u201c CARDINAL [ DATE \u201d and an illegible signature . There are CARDINAL other stamps that read : \u201c FAC . Received DATE \u201d ( \u201c PERSON . PERSON - CARDINAL - CARDINAL ) and \u201c FAC . Received DATE \u201d ( PERSON . PERSON - CARDINAL - CARDINAL ) .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . The other measures are bail ( por\u0119czenie maj\u0105tkowe ) , police supervision ( doz\u00f3r policji ) , guarantee by a responsible person ( por\u0119czenie osoby godnej zaufania ) , guarantee by a social entity ( por\u0119czenie spo\u0142eczne ) , temporary ban on engaging in a given activity ( zawieszenie oskar\u017conego w okre\u015blonej dzia\u0142alno\u015bci ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .","Article CARDINAL \u00a7 CARDINAL sets out the general grounds for imposition of preventive measures . That provision reads :","\u201c CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused \u2019s committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . \u201d","Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :","\u201c 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 his identity can not be established or when he has no permanent abode [ in GPE ] ;","( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;","NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years\u2019 imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . \u201d","The Code sets out the conditions governing the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :","\u201c CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . \u201d","Article CARDINAL , in its relevant part , reads :","\u201c CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d","The Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court \u2013 within those time - limits \u2013 must in each detention decision determine the exact time for which detention shall continue .","Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :","\u201c CARDINAL . When imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .","The whole period of detention on remand until DATE first conviction at first instance may not exceed DATE .","Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . \u201d","On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested in the court of appeal within whose jurisdiction the offence in question has been committed . In addition , new paragraph CARDINAL was added . It provides :","\u201c A decision of ORG taken pursuant to paragraph CARDINAL may be appealed against to ORG sitting in a panel of CARDINAL judges . \u201d","Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) which entered into force on DATE .","The relevant part of Article CARDINAL \u00a7 CARDINAL of the LAW provides as follows :","\u201c Convicted persons ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . \u201d","Article CARDINAL \u00a7 CARDINAL reads as follows :","\u201c Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . \u201d","Article CARDINAL \u00a7 CARDINAL reads , in so far as relevant , as follows :","\u201c ( ... ) detainee \u2019s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . \u201d","Article CARDINAL \u00a7 CARDINAL reads as follows :","\u201c The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter . \u201d","On DATE the Rules of Detention on Remand ( ORG w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force .","\u00a7 CARDINAL of the ORG provides :","\u201c The detainee \u2019s correspondence , including the correspondence with the international institutions for the protection of human rights , which act on the basis of international agreements ratified by GPE , with the ORG and public and local government institutions , is mailed through the intermediary of the organ at whose disposal he remains . \u201d"],"violated_articles":["5","8"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67442","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2004,"docname":"CASE OF RICCARDI PIZZATI v. ITALY","importance":4,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (national proceedings) - claim dismissed","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant sued PERSON in the GPE ORG seeking damages for the loss she had sustained as a result of works carried out by her neighbour which had resulted , among other things , in sewage being dumped on her property .","Preparation of the case for trial began on CARDINAL DATE . Of the DATE hearings scheduled DATE and DATE were adjourned at the request of the parties , CARDINAL at the request of the applicant , CARDINAL at the request of GPE , CARDINAL by the court of its own motion , and CARDINAL on account of a ORG strike ; CARDINAL were devoted to organising expert evidence , CARDINAL to the filing of documents and the hearing of witnesses , CARDINAL to attempts to seek a friendly settlement , and CARDINAL was adjourned in order to allow the parties to make their submissions .","In the meantime PERSON lawyer had filed a death certificate with the registry in respect of his client . At a hearing on DATE the judge declared the proceedings interrupted . On DATE the parties resumed the proceedings and the judge fixed CARDINAL DATE as the date for hearing submissions . On an unspecified date the case was referred to the panel of judges dealing with the oldest cases ( PERSON ) . At a hearing on DATE the parties requested that a date be fixed for hearing oral submissions and the judge adjourned the case to DATE . The hearing was not held on that date , but adjourned to CARDINAL June CARDINAL . On that date the judge allowed the parties to take the files out .","In a judgment of DATE , the text of which was deposited with the registry on DATE , ORG allowed the applicant \u2019s claim in part and ordered PERSON heir to move the septic tank that had not been installed at the prescribed distance and to replace part of the applicant \u2019s sullage pipes . It also awarded her MONEY ( MONEY ) .","On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the \u201c Pinto \u201d Act , complaining of the excessive length of the above - described proceedings . The applicant requested the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the non - pecuniary damage sustained . The applicant claimed MONEY ( MONEY ( ORG ) ) in non - pecuniary damages .","In a decision of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG found that a reasonable time had been exceeded . It dismissed the claim for pecuniary damages on the ground that the applicant had failed to substantiate it , awarded her ORG CARDINAL,CARDINAL on an equitable basis in compensation for the non - pecuniary damage and LAW for costs and expenses . The decision was served on the applicant on DATE .","The applicant appealed to ORG against that decision on DATE on the ground that the amount awarded her by ORG was inadequate .","NORP However , in a judgment of DATE , the text of which was deposited with the registry on DATE , ORG declared the appeal inadmissible on the ground that it had been lodged out of time . The authorities paid the amounts due on DATE .","In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of her application ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22936","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2002,"docname":"RENDAHL v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant owned or partly owned several newspaper companies that went bankrupt in DATE amidst considerable media attention . On behalf of CARDINAL of these companies , ORG and GPE , in DATE the applicant as the managing director applied for state subsidies from ORG ( Presst\u00f6dsn\u00e4mnden ) , a central Government authority responsible for safeguarding the diversity of GPE \u2019s DATE newspapers by allocating state subsidies to the DATE press . State subsidies were granted in the amount of maximum MONEY ( SEK ) and would be payable on the presentation of invoices proving that the investments for which the subsidies were applied were actually made . The applicant submitted an invoice of CARDINAL DATE from a computer company , ORG ( partly owned by applicant ) , to ORG in the amount of SEK CARDINAL.CARDINAL.CARDINAL , and accordingly on CARDINAL DATE state subsidies in the amount of SEK CARDINAL were paid to the applicant . GPE went bankrupt on CARDINAL DATE and ORG went bankrupt on DATE .","In the meantime , on DATE ORG submitted a report to the police , indicating that the invoice of CARDINAL DATE was false and that the applicant had therefore fraudulently appropriated the subsidies paid .","A police investigation commenced on DATE . CARDINAL witnesses were heard during the period of DATE and DATE . On DATE the applicant was questioned by the police and formally notified about the suspicions against him . He was re - interrogated on DATE . On DATE the applicant \u2019s counsel requested a meeting with the prosecutor before a decision whether to bring charges against the applicant be taken . During the meeting , which could not take place until DATE , due to the counsel \u2019s tight schedule , the applicant asked that a named witness on his behalf be heard . This witness was interviewed on DATE . On DATE , having decided to bring charges against the applicant , the public prosecutor sent a summons application to ORG of PERSON ( PERSON tingsr\u00e4tt ) .","On DATE the trial was scheduled to take place on DATE , during which the applicant and CARDINAL witnesses were heard . The applicant admitted that the invoice was false , he maintained however that subsequently he did invest the subsidies in the goods listed on the invoice .","Having found that it could not be established that ORG had suffered a loss , ORG acquitted the applicant by judgment pronounced on DATE .","On DATE the prosecution lodged an appeal against the judgment to ORG in PERSON ( G\u00f6ta Hovr\u00e4tt ) and requested at the same time an extension of the time - limit to complete the appeal . A supplementary preliminary investigation was concluded by the prosecution on DATE , and on DATE the prosecution \u2019s appeal was completed entailing a request that CARDINAL new witnesses be heard .","As the applicant objected to CARDINAL of these witnesses being heard , in the period between CARDINAL DATE and DATE written pleadings were submitted concerning this procedural question . By decision of CARDINAL DATE ORG allowed the new evidence to be submitted .","On DATE the trial was scheduled to take place on CARDINAL and DATE .","By judgment pronounced on DATE ORG found it established that the invoice was false and that at the time of the payment , i.e. on DATE , the applicant had put ORG at risk of suffering a loss . The applicant was accordingly convicted of aggravated fraud pursuant to LAW and sentenced to DATE imprisonment .","His request for leave to appeal of CARDINAL DATE was received in ORG ( ORG domstolen ) on DATE , and having obtained an extension of the time - limit his request was completed on DATE .","On DATE ORG requested that the Prosecutor General submit written observations within DATE . On DATE and on DATE a reminder in this respect was sent to ORG and on DATE the observations were submitted . The applicant \u2019s comments thereto were submitted on DATE . On CARDINAL DATE ORG refused leave to appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-111177","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF SHAKUROV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (Conditional);Non-pecuniary damage - award","judges":"Anatoly Kovler;Erik M\u00f8se;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in LANGUAGE , LOC ( GPE ) .","In DATE the applicant , an officer in ORG , left his military unit in GPE and went to GPE for employment - related reasons . He settled in the town of Yasnogorsk , in LOC , QUANTITY to the north of NORP . DATE his spouse and their CARDINAL children , born in DATE and DATE , moved over from GPE and subsequently obtained NORP citizenship . In DATE the applicant \u2019s spouse bought a house in Yasnogorsk .","Until DATE , for unspecified reasons , the applicant lived separately from his spouse and children .","On DATE the NORP ORG recommended , at the applicant \u2019s spouse \u2019s request , that their elder daughter be admitted to a neurological hospital in GPE in order to treat her neurological condition . The certificate stated that the child should be accompanied by her mother .","The applicant did not apply for NORP citizenship , as he explained , because he had lost his NORP national passport in DATE . Neither did he make any attempts to regularise his stay in GPE or to register his residence in the country DATE .","In the meantime , on DATE the NORP authorities instituted criminal proceedings against the applicant under LAW of LAW ( \u201c the ORG \u201d ) for desertion . The offence was punishable by PERCENT five years\u2019 imprisonment .","On DATE the military prosecutor \u2019s office of ORG ( \u201c the military prosecutor \u2019s office \u201d ) issued a bill of indictment and an arrest warrant against the applicant . On DATE the military prosecutor \u2019s office suspended the investigation on account of the failure to establish the applicant \u2019s whereabouts and put his name on a wanted list .","On DATE the military prosecutor \u2019s office issued a search warrant for the applicant .","On DATE the military prosecutor \u2019s office re - classified the charges against the applicant as aggravated desertion , punishable by DATE imprisonment , and charged him in absentia under LAW of the ORG .","On DATE ORG of the Interior ( \u201c the ROVD \u201d ) brought criminal proceedings against the applicant on suspicion of having threatened his spouse with death ( LAW , \u201c the ORG \u201d ) . On DATE the applicant was arrested and placed in remand centre no . CARDINAL .","On DATE the Yasnogorsk ORG of GPE ( \u201c the district court \u201d ) authorised the applicant \u2019s detention at the request of the ROVD . ORG ( \u201c the district prosecutor \u2019s office \u201d ) backed up the request , referring , in particular , to the fact that the applicant was wanted for a crime committed in GPE . The district court ordered the applicant \u2019s detention on the basis of Articles CARDINAL and CARDINAL of LAW ( \u201c the CCrP \u201d ) , stating as follows :","\u201c It can be seen from materials submitted to the ORG that Mr Shakurov is suspected of a minor criminal offence carrying a penalty of DATE imprisonment . He is unemployed , that he has no permanent income , and has not registered his residence in GPE . Therefore , the court agrees with the investigator that there are grounds to believe that , if at large , he , understanding the nature of the penalty he could face , may flee investigation and prosecution , continue criminal activities and put pressure on the victim and witnesses so that they alter their testimony , thus hindering the criminal proceedings \u201d .","The applicant did not appeal .","On DATE the district court extended the applicant \u2019s detention to CARDINAL DATE on similar grounds , with reference to Articles CARDINAL \u00a7 CARDINAL and QUANTITY of the CCrP. The applicant did not exercise his right of appeal .","On DATE the Justice of the Peace of LOC discontinued the criminal proceedings against the applicant because of reconciliation between the parties , and ordered his immediate release . It is unclear whether the applicant was indeed released . On DATE he was placed in custody with a view to extradition ( see paragraph CARDINAL below ) .","In the meantime , on DATE the ORG received information concerning the criminal proceedings initiated against the applicant in GPE from their NORP counterparts .","On DATE the district prosecutor interviewed the applicant . As can be seen from the questioning record , signed by the applicant , the applicant explained that he had left GPE in DATE as he had faced workplace discrimination \u201c on account of his origins \u201d from his commanding officers , who had refused to consider his resignation requests . He had arrived in GPE with a view to obtaining NORP citizenship and getting employment . He had applied neither for NORP citizenship , as he had lost his NORP passport , nor for political asylum or refugee status , as he had not been subjected to persecution on political grounds in GPE . He considered himself a NORP citizen . The applicant understood that the NORP authorities wanted him for military desertion .","The prosecutor concluded as follows :","\u201c Presently , Mr LOC \u2019s extradition to the law - enforcement authorities of GPE is precluded by the criminal proceedings brought under LAW ORG , which are pending against him in GPE \u201d .","On DATE at an interview with a deputy district prosecutor the applicant added that he had left the military service also because of the very low wages and discrimination from his senior colleagues due to his poor command of NORP . Discrimination on that ground had been very common at his workplace . Thus , the commanding officers had \u201c fabricated \u201d criminal cases against CARDINAL servicemen . The applicant feared that he would be tortured by GPE security forces in the event of extradition , since it was common practice . He intended to submit an asylum request as he feared persecution on the grounds of his nationality and language skills . He considered that the criminal proceedings pending against him in GPE and the fact that his spouse and children lived in GPE and were NORP citizens were obstacles to his extradition to GPE .","On DATE the prosecutor \u2019s office of LOC ( \u201c the regional prosecutor \u2019s office \u201d ) forwarded the extradition material to ORG of ORG , stating as follows :","\u201c The measure of restraint with a view to ensuring Mr LOC \u2019s possible extradition has not been applied to him because it is not necessary . \u201d","On DATE or DATE ORG received a request for the applicant \u2019s extradition from its GPE counterpart , dated CARDINAL DATE . The request was reasoned by the charges brought against the applicant under LAW . Relying on LAW ( \u201c the FAC \u201d ) , the NORP authority assured its NORP counterpart that the applicant would not be extradited to a third country without the consent of GPE , that no criminal proceedings would be initiated and he would not be tried or punished for an offence which was not the subject of the extradition request and he would be able to freely leave GPE once the court proceedings had terminated and the punishment served .","On DATE ORG asked ORG of GPE to provide diplomatic assurances and conduct a check as to the applicant \u2019s allegations of workplace discrimination and torture in the event of his extradition to GPE .","On DATE the Russian ORG ( \u201c the ORG \u201d ) stated that the applicant had neither applied to register his residence in LOC nor to obtain migrant status or NORP citizenship .","On DATE ORG ( \u201c the ORG \u201d ) wrote to the regional prosecutor \u2019s office stating that it saw no obstacles to the applicant \u2019s extradition .","On DATE a district military prosecutor of ORG of GPE issued a statement in connection with the criminal proceedings pending against the applicant in GPE , which read as follows :","\u201c Following Mr Shakurov \u2019s statement at the interview of CARDINAL DATE [ ... ] , military prosecutors of the GPE command questioned the former commanding officer PERSON , the head of the human resources PERSON and [ some other ] officers . They clarified that the unit servicemen had mainly spoken NORP . Servicemen who had not mastered NORP had not been subjected to discrimination . Mr Shakurov had spoken good LANGUAGE and NORP . During the period of his service , he had submitted only one request , dated DATE , whereby he had asked to extend his term of office until DATE . That request had been granted . \u201d","On DATE ORG assured its NORP counterpart that the criminal proceedings against the applicant had been conducted without discrimination on account of his ethnic origin , religion , language or social status and that , if extradited , the applicant would not be subjected to ill - treatment and his right to defend himself , including through legal assistance , would be secured . The criminal proceedings would be carried out in strict compliance with LAW and international treaties .","On DATE ORG ordered the applicant \u2019s placement in custody with a view to extradition ( see paragraph DATE below ) .","On DATE and DATE ORG and the ORG informed ORG that there were no obstacles to the applicant \u2019s extradition to GPE .","On DATE the Deputy Prosecutor General granted the extradition request . The prosecutor decided to extradite the applicant under charges of desertion , a crime punishable under LAW ORG . He noted that the statute of limitations for the offence had not expired either in GPE or in GPE . He further pointed out that , in line with LAW and the CCrP , differences in the classification of the offence and its elements under the NORP and the NORP criminal law were not sufficient grounds for refusing extradition . The prosecutor also referred to the information provided by the ORG that the applicant was an NORP national who had not applied for NORP citizenship . The prosecutor concluded that there were no obstacles to his extradition to GPE .","On DATE and DATE the applicant sought judicial review of the extradition decision . He stated , in particular , that his decision to leave the NORP army had been wrongly classified as desertion ; that the statute of limitations for desertion had expired ; that , since he had not mastered the NORP language , he had been discriminated against in GPE , in particular by superior colleagues who had told him he should learn NORP ; that , if extradited , he ran the risk of being subjected to torture , a widespread practice in GPE , along with other human rights violations ; that he had been permanently residing in GPE for DATE and had no intention to return to GPE ; that his spouse and children were NORP citizens and that his disabled daughter needed costly medical treatment , unavailable in GPE .","From DATE ORG ( \u201c the regional court \u201d ) heard the applicant \u2019s case in the presence of his lawyer . The applicant specified that he had left GPE for GPE in order to ensure his family \u2019s well - being . He considered that after his departure , the NORP authorities had launched a search for him with a view to bringing him to justice for desertion . NORP policemen had threatened his spouse . He clarified that he would risk political persecution in the event of extradition for the reason that he had not mastered LANGUAGE , although he had studied it at school , and that he generally disapproved of the politics of GPE , although neither he nor his family had been politically or religiously active or persecuted . While in GPE , the applicant had used his GPE military officer \u2019s professional card ( \u0443\u0434\u043e\u0441\u0442\u043e\u0432\u0435\u0440\u0435\u043d\u0438\u0435 \u043e\u0444\u0438\u0446\u0435\u0440\u0430 ORG ) as an identity document and , consequently , had had no need to apply for asylum or refugee status there .","On DATE the regional court upheld the extradition decision and , relying on Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 \u00a7 CARDINAL of the ORG and LAW , rejected the applicant \u2019s appeal . The court established that the applicant had left GPE for purely economic reasons . Neither the applicant nor his extended family had been discriminated against or persecuted for political reasons in the requesting country . The alleged police threats towards his spouse were unsubstantiated . The NORP authorities had provided sufficient assurances that the applicant \u2019s rights would be fully respected in the event of extradition . The statute of limitations for desertion had not expired either under the NORP or the NORP law . The applicant \u2019s health was in a satisfactory condition and , as such , did not preclude him from being extradited . As regards the applicant \u2019s family situation , the court stated the following :","\u201c Mr LOC \u2019s argument that his departure from GPE in DATE was motivated by the necessity to provide medical treatment for his child is unsubstantiated . As can be seen from medical certificate no . CARDINAL appended to the case file , ORG of GPE recommended the treatment [ in GPE ] only on DATE at the relatives\u2019 request .","Mr LOC \u2019s children have been living with his spouse , who has been taking care of them \u201d .","On DATE , DATE and DATE and DATE the applicant and his legal counsel appealed against the first - instance judgment . They challenged the charges against the applicant , argued that the regional court had failed to take into account the circumstances which had prompted his departure from GPE , underlined that his spouse and children were NORP citizens and expressed a fear for his life in case of extradition . As to the applicant \u2019s family life , the applicant \u2019s lawyer argued as follows :","\u201c The first - instance court did not properly take account of the difficult family circumstances of [ the applicant ] : his daughter \u2019s illness and disability status , the recommendation that her health care be sought in GPE , and the futility of [ the applicant \u2019s ] retirement applications to the military command and insufficiency of the emoluments ... \u201d","On DATE ORG of GPE ( \u201c the ORG \u201d ) dismissed the points of appeal and upheld the first - instance judgment . The hearing was held by video link and the applicant was legally represented . The appeal court found that the lower court had issued a lawful and reasoned decision . It pointed out that the applicant had been prosecuted for the crime of desertion punishable both in GPE and GPE , that the statute of limitations had not expired and that the NORP authorities had furnished the necessary diplomatic assurances . The court relied on LAW of the CCrP.","On DATE the district prosecutor submitted a request to place the applicant in custody with a view to extradition on the basis of Articles CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL of the CCrP.","On DATE the district court ordered the applicant \u2019s placement in custody pending extradition . The applicant was kept in remand centre no . CARDINAL . Relying on LAW of LAW and Articles CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG , the district court stated as follows :","\u201c Under LAW of the ORG and LAW ORG , desertion is punishable by CARDINAL five years\u2019 imprisonment .","[ ... ] Mr Shakurov is an NORP citizen . He has not applied to renounce his NORP citizenship .","Mr LOC has not applied for political asylum or refugee status in GPE . He has not had access to data under the NORP official secrets legislation or data which could affect NORP national security interests .","He has not been persecuted in GPE on political , racial or religious grounds or for any antisocial activity .","[ ... ] The criminal proceedings brought against him in GPE under LAW ORG were terminated on DATE in view of the parties\u2019 reconciliation .","According to the materials submitted to ORG , ORG should receive documents from the NORP law - enforcement authorities in support of the lawfulness of the arrestee \u2019s extradition and carry out the extradition request . Given that the charges against [ the applicant ] constitute a crime both in GPE and GPE and that he previously absconded from the NORP investigation authorities , there are no grounds for denying his extradition under LAW CCrP \u201d .","ORG did not set a time - limit for detention .","The applicant and his counsel lodged an appeal . They claimed , in particular , that the statute of limitations for his prosecution in GPE had expired , that the applicant had been living in GPE for DATE and that his spouse and children were NORP citizens . The applicant asked the court to change the measure of restraint to an undertaking not to leave GPE or to quash it and grant him refugee status or political asylum .","On DATE the regional court upheld the detention order on appeal , supporting the district court arguments with the following :","\u201c Pursuant to LAW and LAW , the running of the statute of limitations is suspended in the event that the accused is being searched for .","Mr PERSON is an NORP citizen and has not obtained NORP citizenship . His residence in GPE is not in compliance with domestic law and can not be a ground for granting him NORP citizenship . He has not applied for political asylum or refugee status in GPE .","[ ... ] the court rejects as unsubstantiated the applicant \u2019s argument that he was unaware of the charges brought against him in GPE , the institution of criminal proceedings against him and the search warrant issued for him there .","His other arguments for appeal , such as his continuous residence in GPE and family situation , can not be taken into account for the purpose of ordering detention pending extradition .","The court observes that the district court committed no breaches of the ORG which could necessitate the quashing of its decision \u201d .","On DATE the district court extended the applicant \u2019s detention pending extradition to CARDINAL DATE , taking it to a total of DATE . The court relied on LAW The applicant and his lawyer attended the hearing . The court established that there were no grounds for altering the preventive measure , stating as follows :","\u201c According to the materials submitted to ORG , ORG should receive documents confirming the lawfulness of the arrestee \u2019s extradition from the NORP law - enforcement authorities and carry out the extradition procedure . Mr LOC is charged with an offence constituting a crime both in GPE and in GPE , he absconded from the NORP prosecuting authorities and no ground for denying extradition under LAW CCrP can be applied to his case .","Mr LOC \u2019s placement in custody as a measure of restraint was valid , lawful , well - grounded and conducted in compliance with the criminal - procedure laws .","The circumstances under which the measure of restraint was imposed on Mr LOC have not changed . \u201d","On DATE the applicant submitted his points of appeal . He specified that his application for political asylum had been disallowed ( see paragraph CARDINAL below ) and contested that he had absconded from the NORP law - enforcement authorities . He further reiterated his reasons for departing from GPE , such as his disapproval of the NORP political regime , discrimination against the LANGUAGE - speaking population and the ensuing lack of opportunity for his spouse to obtain a University degree , the absence of quality medical care and of educational prospects for the children , and a low standard of living . The applicant pursued his argument as follows :","\u201c I believe that the above - mentioned facts allow me to choose a place of residence for me and my family . I have always thought of GPE as my motherland ( although I was born in GPE ) .","I also ask the honourable court to consider that I have never been convicted , I have been officially married since DATE , my spouse is a NORP citizen , I have to provide for CARDINAL underage children ( one of whom has been suffering from a disability since childhood ) who are also NORP citizens , and I have been permanently residing in PERSON ( what else is needed to obtain NORP citizenship ? ) .","In view of the above , I ask you to quash the decision of the district court [ to extend the detention term ] . For , in the event of my extradition and unlawful conviction in GPE [ ... ] , I have rather substantiated reasons to fear persecution and I really fear for my life . \u201d","The points of appeal reached the regional court on DATE .","On DATE the regional court dismissed the applicant \u2019s appeal , addressing his arguments in full and rejecting them as unsubstantiated . The applicant \u2019s lawyer attended the hearing . With reference to LAW DATE of ORG , the regional court stated as follows :","\u201c Extending Mr Shakurov \u2019s detention pending extradition , the [ district ] court put forward convincing arguments . In view of the material in its possession , the judges\u2019 panel agrees with these arguments ....","The personal situation of the accused , including his arguments for appeal , was taken into account by the [ district ] court . Although there is no information in the case file as to Mr LOC \u2019s child \u2019s disability , this fact can not cast doubt on the validity of the court \u2019s argument in favour of the extension of the detention term . \u201d","On DATE the district court extended the applicant \u2019s detention to DATE , taking it to a total of DATE . In doing so , the district court referred to LAW ORG and provided similar reasoning as in its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . It also took into account the letter of ORG ( see paragraph CARDINAL above ) and the applicant \u2019s pending request for refugee status . The applicant and his lawyer attended the detention hearing . However , neither of them appealed .","On DATE the district court extended the applicant \u2019s detention to QUANTITY DATE under LAW ORG , taking it to a total of DATE . The hearing was held in the presence of the applicant and his legal counsel . They challenged the lawfulness of the charges pending against the applicant in GPE and claimed that LAW ORG was inapplicable to his case since the applicant had not been charged with a serious criminal offence and thus could not be detained for DATE under the CCrP.","With reference to the letter of the CARDINAL DATE of ORG ( see paragraph CARDINAL above ) , the court considered that aggravated desertion was a serious crime punishable by up to CARDINAL years\u2019 imprisonment under LAW of the ORG and LAW . Therefore , LAW was applicable to the applicant \u2019s case with a view to extending his detention DATE . The court also took note of the refusal of his refugee application by the ORG on DATE ( see paragraph CARDINAL below ) . The court stated as follows :","\u201c As can be seen from the materials submitted to the court , PERSON has been charged with a criminal offence which is classified as serious both in the territory of GPE and in the territory of GPE . He has previously absconded from the NORP investigation authorities . Presently , ORG has granted the extradition request submitted by its NORP counterpart [ ... ] .","Mr LOC \u2019s placement in custody as a measure of restraint was valid , lawful , well - grounded and conducted in compliance with the NORP criminal - procedure laws .","The circumstances under which the measure of restraint was imposed on Mr LOC have not changed . \u201d","On DATE the applicant appealed against the first - instance decision . He challenged the validity of the extradition request , claimed that the NORP authorities had failed to prove that he had been timely informed of the charges pending against him and their subsequent re - classification as aggravated desertion . Lastly , he complained that the first - instance court had disregarded his personal situation . On DATE the applicant \u2019s points of appeal reached the district court . On an unspecified date , the district court submitted the file to the regional court , which was the appeal - instance court for the detention issue . It is likewise unclear when the file in fact reached the regional court . The regional court issued its decision on CARDINAL DATE . It is undisputed , however , that , having received the file , the appeal court issued its decision within DATE , as required under the CCrP ( see paragraph DATE below ) .","As indicated , on CARDINAL DATE the regional court examined the applicant \u2019s arguments and dismissed them as unsubstantiated . Both the applicant and his lawyer were present at the hearing . The regional court stated , inter alia , that the district court had taken its decision in compliance with LAW and DATE of the ORG , ORG of DATE and ORG . The district court had considered the extradition request to the extent that the international treaties and LAW of the ORG so allowed . The applicant \u2019s personal situation had also been taken into account . In view of the above , the regional court concluded that :","\u201c Hence , as a result of real judicial review , the [ district ] court reasonably and rightly established that Mr LOC \u2019s term of detention should be extended .","At present , Mr LOC \u2019s detention does not fall foul of LAW CARDINAL ( c ) of LAW [ ... ] or LAW of LAW , according to which individual rights and freedoms can only be restricted by LAW in so far as it is necessary for the protection of the constitutional order , morals , health and legal interests of other citizens . \u201d","On DATE the district court , at the request of the Deputy Regional Prosecutor of DATE , extended the applicant \u2019s detention to CARDINAL DATE , taking it to a total of DATE . Relying on Article CARDINAL of the ORG , the court provided similar reasoning as on DATE ( see paragraph CARDINAL above ) . As an additional ground for extension , the court referred to the pending judicial review in respect of ORG Office \u2019s decision to grant the extradition request .","The applicant and his legal counsel attended the hearing .","DATE . On DATE the applicant submitted his points of appeal . Yet again , he challenged the charges brought against him in GPE and argued that the statute of limitations had expired . He referred to LAW \u00a7 DATE of the CCrP. On DATE the points of appeal reached the district court . On an unspecified date , the district court submitted the file to the regional court . Whereas it is unclear when the file reached the regional court , it remains undisputed that , having received the file , the appeal court issued its decision within DATE , as required under the CCrP ( see paragraph DATE below ) .","On DATE the regional court dismissed the applicant \u2019s appeal with similar reasoning as on DATE and also referred to LAW , LAW and LAW . Relying on the ruling of DATE of ORG , the regional court highlighted that in extending detention with a view to extradition , a court was to apply LAW of the ORG , according to which detention can be extended to DATE .","The applicant did not attend the hearing but was represented at it .","On DATE a deputy regional prosecutor requested to extend the applicant \u2019s detention for DATE , taking it to a total of DATE . The prosecutor took note of the refusal of the applicant \u2019s asylum and refugee status requests ( see paragraphs CARDINAL , DATE and DATE below ) , against which the applicant did not appeal . The prosecutor also pointed to the application of Rule CARDINAL of ORG to the applicant \u2019s case , stating as follows :","\u201c Up to present ORG has not lifted Rule CARDINAL of ORG and , therefore , Mr Shakurov can not be extradited and should be remanded in custody in accordance with LAW","The prosecutor requested to extend the applicant \u2019s detention , inter alia , \u201c with a view to ensuring his detention until ORG examines his application and with a view to surrendering him to the NORP law - enforcement authorities for the purpose of prosecution . \u201d","On DATE the district court granted the prosecutor \u2019s request and extended the applicant \u2019s detention to CARDINAL DATE under LAW Both the applicant and his legal counsel attended the hearing . The applicant argued that the term of his detention pending extradition had started running on DATE when the district prosecutor interviewed him following the receipt of information on the charges pending against him in GPE ( see paragraph CARDINAL above ) . The applicant \u2019s lawyer asked the court to release the applicant since the term authorised under LAW ORG had expired and LAW had been applied to his case . The court established that the applicant \u2019s placement in custody with a view to extradition had been ordered on DATE and rejected the applicant \u2019s argument as unsubstantiated . In extending the detention term , the court relied on LAW ORG and gave similar reasoning as on DATE ( see paragraph CARDINAL above ) .","On DATE and DATE the applicant and his legal counsel introduced their points of appeal . They reiterated that the applicant \u2019s term of detention with a view to extradition had started running on CARDINAL DATE at the latest . Yet on CARDINAL DATE the court deciding on the extension of his detention on criminal charges in GPE had been aware that the applicant had been wanted for a crime committed in GPE ( see paragraph CARDINAL above ) . In accordance with LAW , detention could be extended beyond DATE only in view of particularly serious charges , which was not his case . The prosecutor had wrongly construed Rule CARDINAL of ORG as a ground for extending his detention pending examination of his application by the ORG . Since the application of Rule CARDINAL barred the applicant from extradition , his continuous detention was unlawful and contrary to LAW ( f ) of the LAW . The applicant had no intention to flee GPE and asked the appeal court to consider his family situation .","On DATE the regional court dismissed the applicant \u2019s and his lawyer \u2019s points of appeal , who both attended the hearing . The regional court upheld the grounds for extending the applicant \u2019s detention put forward by the district court and emphasised that his detention was not in breach of LAW . The court established that the date of the applicant \u2019s detention pending extradition had started running on DATE , reasoning as follows :","\u201c Contrary to the assertions of the [ applicant \u2019s ] lawyer , the fact that the NORP law - enforcement authorities had been searching for Mr Shakurov for the purpose of prosecution was not the ground for the court \u2019s order to place him in custody [ on CARDINAL DATE ] .","The fact that the extradition check was launched when PERSON was being held in custody on criminal charges brought against him in GPE is no reason for calculating the term of his detention pending extradition from this date .","Thus , pursuant to LAW ORG , a foreign national who is being prosecuted or is serving a penalty for a crime committed in the NORP territory can not be surrendered until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served .","On DATE the justice of the peace [ ... ] terminated Mr LOC \u2019s prosecution under LAW ORG [ ... ] , lifted the measure of restraint and released him .","Thereafter the district prosecutor submitted a court request under LAW and CARDINAL of the ORG to place Mr Shakurov in custody pending his possible extradition to GPE .","On DATE the district court granted the said request . Therefore , the term of Mr Shakurov \u2019s detention with a view to extradition under LAW ORG started running from DATE . \u201d","On DATE the district prosecutor ordered that the applicant be released under house arrest for the reason that the maximum authorised detention term had expired and that Rule CARDINAL of ORG had been applied to his case . The prosecutor relied on provisions of LAW and DATE of the ORG , in particular LAW . The applicant was released .","On DATE the applicant appealed .","On DATE the regional prosecutor \u2019s office quashed the decision of CARDINAL DATE .","On DATE the district court discontinued the proceedings on the ground that the impugned decision had been quashed and the applicant had consequently recalled his complaint of DATE .","On DATE the district prosecutor \u2019s office ordered the applicant not to leave his town of residence .","On DATE the applicant lodged a request for political asylum and refugee status with the ORG department in LOC ( \u201c the regional FMS \u201d ) . He submitted , in particular , that he disapproved of the politics of GPE and the low - quality medical care , that he had left GPE for work - related reasons and that he and his family had been discriminated against there , owing to their insufficient command of the NORP language .","On DATE and CARDINAL DATE the regional ORG stated that the applicant \u2019s request for political asylum could not be processed in view of the visa - free regime between GPE and GPE . Consequently , the regional ORG advised the applicant to apply for refugee status .","On DATE the applicant submitted an application for refugee status , as indicated . He provided the same reasoning as in the request of CARDINAL DATE .","On DATE , at an interview with a regional ORG officer , the applicant stated that in the event of his extradition to GPE he feared prosecution and imprisonment for desertion , a crime that he had not committed .","On DATE the applicant submitted that the statute of limitations for desertion had expired and that he had not been notified of the launch of the criminal proceedings against him in GPE .","On DATE the regional ORG rejected the applicant \u2019s request for refugee status . The ORG found that the applicant faced no risk of persecution on account of his origin , religion , nationality or belonging to a particular social group . ORG that the applicant might face owing to his allegedly insufficient command of the NORP language did not amount to persecution on account of his origin . The applicant had left GPE for economic reasons . The ORG concluded that he did not wish to return to GPE so as to avoid prosecution for the crime with which he had been charged . The ORG also noted that since the applicant \u2019s arrival in GPE in DATE he had made no steps to claim refugee status until his arrest and subsequent detention with a view to extradition .","The applicant did not appeal against the above decision .","The applicant submitted CARDINAL requests for temporary asylum , on DATE and DATE . The second request emphasised the applicant \u2019s risk of being subjected to torture as a result of politically motivated persecution in the event of extradition . He supported his argument with references to the systematic practice of torture described by international human rights reports .","DATE . On DATE the regional ORG rejected his first application on the ground that the applicant \u2019s health was in a satisfactory condition , that he did not require any medical care and that , in the event of his extradition to GPE , he would face no risk of being subjected to torture or ill - treatment , or being involved in an internal or international conflict . With reference to a report of ORG no . CARDINAL fms of DATE ( \u2116 CARDINAL \u0444\u043c\u0441 , \u201c the ORG report \u201d ) and an information notice from the ORG on the socio - political and socio - economic situation in GPE of DATE ( \u201c the information notice \u201d ) , the regional ORG stated that there was no information as to the practice of ill - treatment in respect of persons extradited to GPE and those detained in NORP prisons . The notice emphasised ongoing reforms of the NORP judiciary and the abolition of the death penalty in the country as of DATE . It also specified that GPE had ratified over CARDINAL international human rights treaties . Copies of the report and the information notice were not submitted to the ORG .","The applicant did not appeal against the above decision .","On DATE the regional ORG granted a DATE \u2019s temporary asylum to the applicant , valid until DATE . The ORG reasoned that ORG had allowed the extradition request , that Rule CARDINAL of ORG had been applied to the applicant \u2019s case and that , otherwise , his stay in GPE would remain irregular until ORG delivered its judgment .","Everyone has a right to liberty and security ( Article CARDINAL \u00a7 CARDINAL ) . Detention is permissible only on the basis of a court order . The length of time for which a person may be detained prior to obtaining such an order must not exceed TIME ( LAW ) .","The term \u201c court \u201d is defined by LAW ( CCrP ) of DATE as \u201c any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW \u201d ( LAW ) . The term \u201c judge \u201d is defined by the ORG as \u201c an official empowered to administer justice \u201d ( LAW ) .","A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace , a regional court or ORG ( LAW ) .","LAW of the CCrP governs the application of preventive measures . Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A court request for detention is submitted by an investigator ( \u0441\u043b\u0435\u0434\u043e\u0432\u0430\u0442\u0435\u043b\u044c ) with the support of the head of the investigative authority or by a police officer in charge of the inquiry ( \u0434\u043e\u0437\u043d\u0430\u0432\u0430\u0442\u0435\u043b\u044c ) with the support of a prosecutor ( LAW ) . A request for detention should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned ( LAW ) .","A judge \u2019s decision on detention is amenable to appeal before a higher court within DATE after its delivery date ( LAW of the CCrP ) . A statement of appeal should be submitted to the first - instance court ( LAW ORG ) . While the ORG contains no time - limit during which the first - instance court should send the statement of appeal and the case file to the appeal - instance court , Order no . CARDINAL of DATE by ORG of ORG of GPE requires that , \u201c after the expiry of the DATE time - limit for appeal \u201d , the first - instance court should submit the detention file to the higher court . Having received this file , second - instance courts should examine appeals lodged against the judge \u2019s decisions on detention within DATE ( LAW ) .","DATE . The period of detention pending investigation of a criminal case must not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level . Further extensions DATE may be granted with regard to persons accused of serious or particularly serious criminal offences ( Article CARDINAL \u00a7 CARDINAL ) . Extensions DATE may be granted as an exception with regard to persons accused of particular serious criminal offences ( Article CARDINAL \u00a7 CARDINAL ) .","A measure of restraint can be applied with a view to ensuring a person \u2019s extradition in compliance with the procedure established under LAW ) .","LAW of the CCrP ( FAC ) governs the procedure to be followed in the event of extradition .","A court is to review the lawfulness and validity of a decision to extradite within DATE of receipt of a request for review . The decision should be taken in open court by a panel of CARDINAL judges in the presence of a prosecutor , the person whose extradition is sought and the latter \u2019s legal counsel ( Article CARDINAL \u00a7 CARDINAL ) .","Article CARDINAL \u00a7 CARDINAL lists the conditions under which extradition can not be authorised . Thus , the extradition of the following should be denied : a NORP citizen ( LAW ) or a person who was granted asylum in GPE ( LAW ) ; a person in respect of whom a conviction became effective or criminal proceedings were terminated in GPE in connection with the same act for which he or she has been prosecuted in the requesting ORG ( LAW ) ; a person in respect of whom criminal proceedings can not be launched and a conviction can not become effective in view of the expiry of the statute of limitations or under another valid ground under LANGUAGE law ( LAW ) ; or a person in respect of whom a NORP court established obstacles to extradition , in accordance with the legislation and international treaties of GPE ( LAW ) . Finally , extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the ORG ( LAW ) .","In the event that a foreign national , whose extradition is being sought , is being prosecuted or is serving a penalty for another criminal offence in GPE , his extradition may be postponed until the prosecution is terminated , the penalty is lifted on any valid ground or the sentence is served ( LAW ) .","Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to \u201c take measures \u201d in order to decide on the preventive measure in respect of the person whose extradition is being sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .","Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body , a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of GPE ( Article CARDINAL \u00a7 CARDINAL ) .","Verifying the compatibility of section CARDINAL \u00a7 CARDINAL of the Law on ORG in the GPE of DATE , ORG ruled that a foreign national liable to be expelled from the NORP territory could not be detained for CARDINAL without a court order .","Assessing the compatibility of LAW of the CCrP with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW CARDINAL \u00a7 CARDINAL of LAW in all cases , including extradition proceedings .","In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is the procedure laid down in the GPE That procedure comprised , in particular , LAW and the norms in its LAW ( \u201c Preventive measures \u201d ) , which , by virtue of their general character and position in Part I of the LAW ( \u201c General provisions \u201d ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .","The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .","The Prosecutor General asked ORG for official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person \u2019s detention with a view to extradition .","ORG refused the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .","The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .","ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .","ORG dismissed as inadmissible a request for a review of the constitutionality of LAW of the ORG , stating that this provision \u201c does not establish time - limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure , it merely confirms a prosecutor \u2019s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate constitutional rights of [ the claimant ] ... \u201d","In Ruling no . CARDINAL , adopted by LAW of ORG of GPE on DATE ( \u201c the Ruling of CARDINAL DATE \u201d ) , it was stated that , pursuant to LAW ORG , only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody . The judicial authorisation of placement in custody in that situation was to be carried out in accordance with LAW of the ORG and following a prosecutor \u2019s request for that person to be placed in custody ( paragraph CARDINAL of the Ruling ) . In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure . If the extradition request was accompanied by a detention order of a foreign court , a prosecutor was entitled to remand the person in custody without a NORP court \u2019s authorisation ( LAW ORG ) for a period not exceeding DATE , and the prosecutor \u2019s decision could be challenged in the courts under LAW","In extending a person \u2019s detention with a view to extradition a court was to apply LAW","When carrying out actions requested under LAW , to which GPE and GPE are parties , an official body applies its country \u2019s domestic laws ( LAW ) .","Extradition for the institution of criminal proceedings can be sought with regard to a person whose acts constitute crimes under the legislation of the requesting and requested parties and are punishable by imprisonment of DATE ( Article CARDINAL \u00a7 CARDINAL ) .","Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is being sought , except in cases where no extradition is possible ( Article CARDINAL ) .","NORP The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .","A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE of the date of placement in custody ( LAW ) .","For relevant reports on GPE in the period DATE , see PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE .","The UN Special Rapporteur on Torture stated to the CARDINALnd Session of the UN Human Rights Council on DATE the following :","\u201c The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . \u201d","NORP In DATE ORG considered the third periodic report of GPE ( CAT \/ C \/ UZB\/CARDINAL ) and adopted , inter alia , the following conclusions ( CAT \/ C \/ UZB \/ CO\/CARDINAL ) :","\u201c CARDINAL . ORG is concerned about :","( a ) Numerous , ongoing and consistent allegations concerning routine use of torture and other cruel , inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent , often to extract confessions or information to be used in criminal proceedings ;","( b ) ORG reports that such acts commonly occur before formal charges are made , and during pre - trial detention , when the detainee is deprived of fundamental safeguards , in particular access to legal counsel . This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws ;","( c ) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention ...","ORG has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention ...","ORG remains concerned that despite the reported improvements , there are numerous reports of abuses in custody and many deaths , some of which are alleged to have followed torture or ill - treatment ... \u201d","NORP In DATE ORG issued a report entitled \u201c Nowhere to Turn : Torture and Ill - Treatment in GPE \u201d , which provides the following analysis :","\u201c Prolonged beatings are CARDINAL of the most common methods used by the police and security agents to frighten detainees , break their will , and compel them to provide a confession or testimony . They often start beating and kicking detainees with their hands , fists , and feet and then continue using truncheons , filled water bottles and various other tools ...","Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it ...","Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees . After forcing an old - fashioned gas mask over the head of the victim , who in some cases is handcuffed to a chair , the oxygen supply is cut ... \u201d","The ORG Special Rapporteur on Torture stated to the CARDINALrd Session of ORG on DATE the following :","\u201c CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...","...","In light of the foregoing , there is little evidence available , including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... \u201d","Amnesty International issued on CARDINAL DATE a document entitled \u201c GPE : A Briefing on Current Human Rights Concerns \u201d , stating the following :","\u201c ORG believes that there has been a serious deterioration in the human rights situation in GPE since the so - called PERSON events in DATE . ...","Particularly worrying in the light of GPE \u2019s stated efforts to address impunity and curtail the use of cruel , inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill - treatment by law enforcement officials and prison guards , including reports of the rape of women in detention . ...","Despite assertions by GPE that the practice of torture has significantly decreased , ORG continues to receive reports of widespread torture or other ill - treatment of detainees and prisoners .","According to these reports , in most cases the authorities failed to conduct prompt , thorough and impartial investigations into the allegations of torture or other ill - treatment . ORG is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill - treatment remains the exception rather than the rule .","Allegations have also been made that individuals returned to GPE from other countries pursuant to extradition requests have been held in incommunicado detention , thereby increasing their risk of being tortured or otherwise ill - treated and have been subjected to unfair trial . In CARDINAL case in DATE , for example , a man who was returned to GPE from GPE was sentenced to CARDINAL years\u2019 imprisonment after an unfair trial . His relatives reported that , upon his return to GPE , he was held incommunicado for DATE during which time he was subjected to torture and other ill - treatment in pre - trial detention . He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible . \u201d","In DATE ORG released its DATE World Report DATE . The chapter entitled \u201c GPE \u201d , in so far as relevant , states as follows :","\u201c GPE \u2019s human rights record remains abysmal , with no substantive improvement in DATE . Authorities continue to crack down on civil society activists , opposition members , and independent journalists , and to persecute religious believers who worship outside strict state controls ...","...","Criminal Justice , ORG , and Ill - Treatment","Torture remains rampant in GPE . Detainees\u2019 rights are violated at each stage of investigations and trials , despite habeas corpus amendments that went into effect in DATE . The NORP government has failed to meaningfully implement recommendations to combat torture that the ORG special rapporteur made in DATE .","Suspects are not permitted access to lawyers , a critical safeguard against torture in pre - trial detention . Police use torture and other illegal means to coerce statements and confessions from detainees . Authorities routinely refuse to investigate defendants\u2019 allegations of abuse .","...","ORG","The NORP government \u2019s cooperation with international institutions remains poor . It continues to deny access to all CARDINAL ORG special procedures that have requested invitations , including those on torture and human rights defenders ... \u201d","NORP The applicant referred to a document entitled \u201c On Torture and Arbitrary Detention in GPE and GPE . Report to ORG Special Mechanisms \u201d , which was issued on DATE by ORG ( CIVICUS ) . In so far as relevant , it stated the following :","\u201c [ ... ] DATE after the special rapporteur on torture concluded that systemic torture exists in GPE , torture [ ... ] continues to be a routine component of investigations and detention and is a common practice in the penal systems . Forms of torture include .","\u2022 Bludgeoning with batons","\u2022 Genital mutilation","PERSON and female rape and sodomy","\u2022 Psychological humiliation and degradation","\u2022 Electrocution","...","Other at risk groups include :","...","\u2022 Refugees and asylum seekers who are often deported from other ORG countries back to GPE ... \u201d","Chapter \u201c GPE DATE \u201d of the ORG DATE report DATE , released in DATE of DATE , in so far as relevant , states as follows :","\u201c Despite assertions by the authorities that the practice of torture had significantly decreased , reports of torture or other ill - treatment of detainees and prisoners continued unabated . In most cases , the authorities failed to conduct prompt , thorough and impartial investigations into these allegations .","...","GPE again refused to allow ORG on torture to visit the country despite renewed requests \u201d .","In support of his allegation of the risk of ill - treatment in GPE , in particular , poor conditions of detention and a lack of medical assistance in prisons , the applicant also referred to a news item available on the Internet site http:\/\/www.fergananews.com . This document described the case of Colonel PERSON , formerly a citizen of GPE who had taken NORP citizenship and had been prosecuted for treason in GPE . At a certain point after his conviction Mr PERSON had suffered a stroke and had been transferred to another prison , without his family being informed thereof ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":["3","5","8"],"non_violated_paragraphs":["5-1","8-1"],"non_violated_bulletpoints":["5-1-f"],"violated":true}
{"itemid":"001-105234","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2011,"docname":"CASE OF DOBRI\u0106 v. SERBIA","importance":3,"conclusion":"No violation of Art. 6-1","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque","text":["The applicants were born in DATE and DATE respectively . The first applicant lives in GPE , GPE , while the second applicant lives in PERSON , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE PERSON filed a real estate claim against the applicants with ORG in ORG . The value of the dispute ( vrednost spora ) stated by the plaintiff was CARDINAL \u201c old dinars \u201d .","Following a remittal and a redenomination of the NORP currency , on DATE ORG ruled in favour of the applicants and noted that the value of the dispute was now CARDINAL \u201c new dinars \u201d .","Following CARDINAL remittals , on DATE and CARDINAL DATE respectively , ORG twice ruled in favour of the applicants , and on both occasions reaffirmed that the value of the dispute was MONEY .","On DATE ORG accepted the appeal filed by the plaintiff and , in so doing , ruled partly in his favour .","The applicants , who were represented by legal counsel , thereafter filed an appeal on points of law ( revizija ) .","On DATE ORG , however , rejected this appeal , stating that the applicants were not entitled to lodge it given that the value of the dispute in question was QUANTITY , the applicable statutory threshold . In particular , the court acknowledged that the parties had agreed , on DATE , that the value of the dispute should be MONEY , but observed that there was no separate ORG decision to this effect in the case file . Therefore , the relevant amount was the MONEY , as stated in the plaintiff \u2019s original claim , which was clearly less than the MONEY threshold under the relevant civil procedure rules ( see paragraphs CARDINAL and DATE below ) . Lastly , implicitly relying on its Opinion of CARDINAL DATE , ORG noted that the Government \u2019s Decree of DATE had provided that until DATE both old and new dinars would be valid legal tender based on the ratio that CARDINAL new dinar was worth MONEY . The \u201c plaintiff \u201d himself , however , had \u201c not amended the value of the dispute in new dinars \u201d by DATE ( see paragraph CARDINAL below ) .","The applicants were served with ORG decision on DATE .","Article CARDINAL \u00a7 CARDINAL provides that an appeal on points of law ( revizija ) is \u201c not admissible \u201d in pecuniary lawsuits where the value of the dispute , as indicated by the plaintiff in his or her claim , does \u201c not exceed CARDINAL ... [ new ] dinars \u201d , this threshold having been introduced in DATE .","NORP However , Article CARDINAL provides , inter alia , that , should the value of the dispute stated by the plaintiff be \u201c obviously too high or too low \u201d , the court itself shall resolve the issue . This must be done , at the latest , at the preliminary hearing or , if one is not held , before the beginning of the main hearing at first instance .","Articles CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL and CARDINAL \u00a7 CARDINAL provide that a civil claim may , with the consent of the parties , be amended \/ increased until the conclusion of the main hearing at first instance .","Article CARDINAL provides , inter alia , that the ORG shall reject any and all appeals on points of law which it deems inadmissible .","Lastly , ORG CARDINAL and CARDINAL - CARDINAL provide , inter alia , that the ORG shall , should it accept an appeal on points of law lodged by CARDINAL of the parties concerned , have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts .","ORG opined that where an appeal on points of law would have been available according to the rules in force at the time when the civil claim had been brought , but where , following the redenomination , the value of the dispute in question clearly remained below the threshold of MONEY , an appeal on points of law could not be filed . If the parties , however , agreed to amend the value of their dispute so as to raise it above the said threshold by DATE , at the latest , an appeal on points of law would be admissible ( NORP shvatanje utvr\u0111eno na sednici PERSON odeljenja ORG od CARDINAL . DATE . godine , published in ORG Bulletin no . CARDINAL ) .","Articles QUANTITY increased the minimum requirement for an appeal on points of law from MONEY to QUANTITY , but specified that , in respect of all suits brought earlier , the applicable amount would still be QUANTITY .","LAW entered into force on DATE , thereby repealing LAW DATE . LAW of the former , however , provides that in all cases which were brought before that date the applicable legislation , as regards an appeal on points of law , shall be the legislation which was in force prior to DATE .","Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for all panels ( ve\u0107a ) of the division in question ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68407","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF PETRUSHKO v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE , GPE .","In DATE the applicant brought an action for damages against ORG following the death of her husband during his military service in GPE .","On DATE ORG of PERSON granted the applicant 's claim . Her award consisted of a lump - sum compensation of MONEY ( ORG ) and DATE payments of ORG CARDINAL,CARDINAL.CARDINAL , subject to future adjustment to a statutory rate . The DATE payments were not paid to the applicant .","In DATE the applicant brought new proceedings to obtain the adjustment of the outstanding DATE payments .","On DATE ORG of PERSON granted the applicant 's claim . It made an adjustment of the DATE payments increasing them retrospectively to RUR CARDINAL,CARDINAL . It awarded the applicant arrears of RUR CARDINAL,CARDINAL.CARDINAL in respect of the period from DATE to CARDINAL October CARDINAL .","On DATE the applicant obtained an execution order , which she submitted to ORG of GPE for payment .","On DATE , after the case had been communicated to the Government , the applicant was paid PERSON , and on DATE she was paid ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86980","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2008,"docname":"CASE OF KEHOE v. THE UNITED KINGDOM","importance":3,"conclusion":"No violation of Art. 6;No violation of Art. 13","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant married PERSON in DATE . They had CARDINAL children . The marriage broke down and the applicant applied for divorce . PERSON left the marital home at DATE . The children remained with the applicant who , in DATE , had applied to ORG ( \u201c the CSA \u201d ) to obtain financial support from their father for bringing up the children . There had been an oral agreement that he pay GBP CARDINAL maintenance per week towards the support of the children . According to the applicant , some payments had been voluntarily made but they had rapidly ceased . She only had a limited income from a part - time evening job and child benefit and even when she obtained full - time secretarial employment in DATE she was struggling financially .","The ORG did not send a Maintenance Enquiry Form ( ORG ) to PERSON until DATE , which resulted in the applicant losing the opportunity to receive maintenance for the period prior to that date .","On DATE Mr K returned the ORG accepting paternity . Insufficient information was given to allow a full maintenance assessment to be made . An interim maintenance assessment ( ORG ) was issued with effect from DATE .","Mr K \u2019s liability changed many times after DATE , inter alia as his employment changed and it proved difficult to obtain information .","According to the summary in the later High Court judgment , the key features were as follows :","By DATE arrears of GBP CARDINAL,CARDINAL had accumulated .","The ORG negotiated an agreement with PERSON that he would pay under the ORG , GBP MONEY per week plus GBP CARDINAL towards arrears .","On DATE a liability order was applied for because he had breached the agreement . The order was discontinued when regular payments were resumed .","On DATE the Secretary of ORG issued an apology to the applicant for the inconvenience caused by the delay in issuing the ORG and paid her GBP CARDINAL,CARDINAL.CARDINAL , comprising the amount of child support she might have received up to that point if the ORG had been sent at the proper time , namely ORG ( inclusive of interest ) , and ORG ex gratia compensation .","On DATE , the ORG issued a further apology about the service which she had received and made an additional \" consolatory \" compensation payment of GBP CARDINAL .","NORP In DATE and DATE , the ORG paid the arrears not yet received plus interest for the delay .","On DATE a second application for a liability order was granted for GBP CARDINAL,CARDINAL.CARDINAL , covering arrears from DATE to CARDINAL DATE . Payments were not made and bailiffs were instructed to levy distress , but were unsuccessful .","On DATE the liability order was registered as a county court debt . Consideration was given to a committal order but the policy was to use this only as a last resort .","On DATE a deduction of earnings order ( ORG ) was issued for GBP MONEY per month , increased to GBP CARDINAL on DATE . Following this Mr K again stopped paying . EOs on the company of which he was a director proved unsuccessful . In an interview with the CSA Mr K alleged that he had stopped paying as CARDINAL of the qualifying children had been living with him for DATE and a third had moved in recently , while the fourth had gone to live with the mother in GPE . The ORG was aware of the changed circumstances of the children and had taken this into account in assessments . Having established that the applicant was permanently resident in GPE the case was closed on DATE with effect from DATE . Arrears remained due however and the ORG continued to seek to enforce them .","On DATE a committal hearing was held . Mr K admitted owing GBP CARDINAL for the period CARDINAL DATE to DATE and ORG for the period DATE until DATE . He agreed to pay the former sum by DATE and the latter sum at GBP DATE from DATE .","Payment was not made in DATE . He was contacted on DATE and told that unless payment was made by DATE committal proceedings would be restored . A payment of GBP CARDINAL was made on DATE .","The applicant brought proceedings under LAW DATE ( ORG ) , seeking a declaration that the provisions of LAW DATE were incompatible with LAW as they denied a parent with care of children access to court in connection with disputes as to whether the absent parent had paid or ought to pay sums due under a maintenance assessment or as to the manner in which the obligations under the maintenance assessment should be enforced and seeking damages under LAW ORG based on the ORG \u2019s undue delay after DATE in taking steps to enforce the child maintenance assessments obtained in this case . She maintained that she had expended much energy and suffered much stress in attempting to get the ORG to obtain payments for her and had been repeatedly told that the dispute was between the ORG and Mr K and did not involve herself ; she believed that she would not have received a fraction of the money eventually paid if she had not continually pressurised the ORG and complained of their inaction and inability to obtain maintenance for her .","On DATE , Mr Justice Wall found that the applicant had a civil right to seek maintenance for her children from their father , such right being an autonomous substantive right , plainly recognised in LANGUAGE law and provided for by domestic legislation . The exclusion of the claimant from the enforcement process imposed a procedural bar on the prosecution \/ enforcement of the claim which engaged LAW . He found that the court was given jurisdiction by the ORG such that if the ORG had acted in any way incompatible with the claimant \u2019s LAW rights she could bring an action for damages under section CARDINAL , while any decision by the CSA not to enforce or any failure to enforce timeously or effectively would be subject to challenge by judicial review . On this basis the scheme under LAW was ORG compliant and she was not entitled to a declaration of incompatibility . He issued directions with a view to an eventual trial as to whether there had been undue delay and to determine any damages . This part of the order was stayed pending appeal to ORG .","On DATE , ORG upheld the Secretary of ORG \u2019s appeal and dismissed the applicant \u2019s cross - appeal . It held , as summarised in the head note :","\" that LAW DATE introduced a new child support system , its self- contained nature being a critical feature of its effect in domestic law ; that the scheme was built firmly on the central premise that the assessment , collection and enforcement of maintenance orders should be in the hands of ORG and consequentially it redefined the rights and obligations of parents and those caring for children ; that there was no justification for departing from the general principle that LAW was concerned only with disputes recognisable as such under domestic law and founded on the existence of an underlying right ; that under the scheme the applicant had no legal right in domestic law to a child maintenance payment of any particular amount or at all ; and that , accordingly , she was unable to assert that she had an arguable civil right under LAW which entitled her to a determination by a court . \u201d","The Court of Appeal further held that the judge had erred in finding that she had a right to damages to supplement her limited right of judicial review ; damages could only be awarded where the LAW was incompatible with LAW did not become incompatible because of a lack of entitlement to damages for its incompatibility .","On DATE , ORG , by a majority of CARDINAL , rejected the applicant \u2019s appeal .","Lord GPE of PERSON stated in rejecting the appeal :","\" [ CARDINAL ] That a caring parent in the position of PERSON was given no right of recovering or enforcing a claim to child maintenance against an absent or non - resident parent was not a lacuna or inadvertent omission in the DATE Act : it was the essence of the new scheme , a deliberate departure from the regime which had previously obtained . The merits of that scheme are not for the ORG in its judicial capacity to evaluate . But plainly the scheme did not lack a coherent rationale . The state has an interest , most directly in cases where public funds are disbursed , but also more generally that children should be adequately supported . It might well be thought that a single professional agency , with the resources of the state behind it and an array of powers at its command , would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way . It might also be thought that the interposition of an independent , neutral , official body would reduce the acrimony which had all too frequently characterised applications for child maintenance by caring against absent or non - resident parents in the past which , however understandable in the aftermath of a fractured relationship , rarely enured to the benefit of the children . For better or worse , the process was deliberately changed .","[ CARDINAL ] The DATE Act can not in my opinion be interpreted as conferring any right on a parent in the position of PERSON She is of course the person to whom child maintenance will be paid , directly or indirectly and subject to any deduction of benefit , as the person who incurs the expense of bringing up the children . But the right which she had enjoyed under the former legislation was removed , and the right to recover the maintenance has been vested in the CSA ... \"","Baroness PERSON of GPE , dissenting , found that prior to the DATE Act a father had , at common law , a duty to maintain his legitimate minor children which had always been unenforceable in the courts . However it had been expanded and reinforced by CARDINAL kinds of statutory obligation : a private law obligation to make the payments ordered by a court under various statutes ( e.g. matrimonial and family proceedings ) and a public law obligation to reimburse the ORG for benefits paid for the children . The new scheme which transferred the task of assessing and collecting maintenance from the courts did not however remove these obligations or the corresponding right of the child to benefit from them . The obligation of a parent to maintain his children and the right of the children to have the benefit of the parental obligation to maintain them were not wholly contained in the CARDINAL LAW . LAW left all previous law intact save precluding courts from using their powers in cases where the ORG was supposed to do it for them . Accordingly the children \u2019s civil right to parental support survived the DATE Act which acted not only as a limit to the extent of the obligation but also as a limit to its enforcement . Article CARDINAL was therefore engaged .","In assessing whether the limitations on enforcement of those rights was compatible with the ORG , ORG noted that there was undoubtedly a legitimate aim . Although the non - enforceability by the custodial parent in non - benefit cases was not a necessary feature of comparable child support schemes elsewhere in the common law world , the matter had been debated . That possibility was rejected as the ORG did not want to create CARDINAL law for the rich and CARDINAL for the poor . There were also cases where the parent with care was sometimes in receipt of benefits and at other times not . She concluded that this was just the sort of policy choice in a socio - economic field which the courts were usually prepared to leave to the judgment of ORG , which was best able to make the decision as to which scheme would most effectively secure the recognition and enforcement of the children \u2019s rights generally . It would be difficult to hold that the scheme as a whole was incompatible with the children \u2019s rights to a speedy determination and enforcement of their claims . That said , she considered that the public authority charged by ORG with securing those rights was under a duty to act compliantly with LAW . She would therefore have allowed the appeal and restored Mr Justice Wall \u2019s order .","Meanwhile , all money owed to the applicant was paid by DATE and her case was closed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109115","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2012,"docname":"MILJAK v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison term in FAC . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant had a motor accident and suffered injuries to his spine . Following the accident , the applicant underwent several operations as well as other medical treatment and rehabilitation . He was diagnosed with vertebral fracture , tetraplegia and spastic paraplegia and is incontinent . He is classified as PERCENT disabled .","On DATE the applicant was detained in PERSON in connection with a criminal investigation opened in respect of him . On DATE the applicant was transferred to ORG ( GPE li\u0161ene slobode - \u201c the ZPH \u201d ) . He was accommodated in a room measuring QUANTITY together with CARDINAL other patients . With no assistance from staff , he could not wash or relieve himself unless his roommates helped him to do so . Owing to his disability , the applicant was unable to leave his bed because the space between the beds was not wide enough for the wheelchair . He alleges that the bathroom and toilet were in a poor state of repair and always dirty and smelly . During his stay in the ZPH the applicant did not leave the surgical ward .","NORP The medical documentation submitted confirms that the applicant is severely disabled and reliant on a wheelchair to move around . During his stay in the ZPH the applicant was diagnosed with hepatitis C.","On DATE the ORG ( PERSON u GPE ) found the applicant guilty of trafficking in illegal substances and sentenced him to CARDINAL years\u2019 imprisonment .","On DATE the applicant petitioned a sentence - execution judge of ORG and complained about the conditions in which he had been kept . He sought immediate transfer to an institution where he could be provided with adequate medical care . It appears that he received no reply .","On DATE the applicant lodged a constitutional complaint about the conditions of his detention in the ZPH .","In a medical certificate of CARDINAL DATE the head of the surgical ward of the ORG stated that the ZPH had no adequate accommodation for the applicant and that they were not in a position to ensure that he could go outside .","On DATE the applicant was transferred to PERSON .","According to the applicant the conditions of his detention in that prison , as regards the size of his cell and the time he spends outdoors , have ameliorated . However , he had to buy a wheelchair adapted for his needs at his own expense . He also needs an electric bed , which would be more suitable for his condition . The mattress he sleeps on is also inadequate . He does not have a cupboard or a table next to his bed . The medical personnel leave the prison LOC DATE at TIME and after that time he is dependent on the QUANTITY other inmates who share his cell . Thus , they shower him , change his urinary sheath , transfer him from his bed to his wheelchair and clean him when he accidentally relieves himself in bed . Also , since his arrival at FAC he has developed a bed sore on his foot and his cellmates change the bandages on that wound . They also help him change his clothes , cut his nails and shave him . In this respect he depends on their goodwill .","According to the Government the applicant is held in a cell measuring QUANTITY , together with CARDINAL other inmates who voluntarily help him in maintaining his personal hygiene and his physiological needs . The cell has central heating and is never locked . The applicant has the opportunity to spend time outdoors anytime TIME He uses a toilet and shower adapted for wheelchair users and is under the constant supervision of a doctor , a nurse and a paramedic . He has his meals in the prison canteen or sometimes in his cell . In his free time he watches television on his own television set in his cell . He also often goes to a bowling alley adapted for people with disabilities . All the entrance areas at the prison are adapted for wheelchair users . The applicant has the right to go to a nearby town for TIME a month .","On CARDINAL DATE the applicant gave oral evidence before ORG in the proceedings concerning the conditions in the ZPH ( see paragraph CARDINAL above ) . He repeated his complaints as regards the conditions and lack of adequate medical care in the ZPH . He made no complaints as regards his placement in FAC . The relevant part of the ORG decision referring to the applicant \u2019s statement as regards PERSON reads :","\u201c The applicant says that he was transferred to PERSON on DATE and speaks well of the conditions in that institution . \u201d","On DATE ORG accepted the applicant \u2019s complaint and found a violation of his constitutional right to humane treatment and respect for his dignity guaranteed under LAW . It found that the ZPH had no facilities for persons in the applicant \u2019s condition and also ordered ORG to secure the \u201c unhindered movement of prisoners with special needs \u201d in the ZPH within DATE . It did not make a decision as to where the applicant should be detained in the future .","On an unspecified date the applicant filed a claim for damages with the NORP State Attorney \u2019s Office , asking that a settlement be reached in the matter . The ORG authorities offered to pay him MONEY ( HRK ) in compensation , which he refused . On DATE he brought a civil action against the ORG in ORG ( PERSON GPE ) seeking compensation in the amount of HRK CARDINAL . These proceedings are still pending .","The relevant articles of LAW ( Ustav PERSON ) provide :","\u201c No one shall be subjected to any form of ill - treatment ... \u201d","\u201c All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity .","... \u201d","Section CARDINAL(CARDINAL ) of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL\/CARDINAL ) reads :","\u201c CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that a decision ( pojedina\u010dni akt ) of a ORG body , a body of local and regional self - government , or a legal person with public authority , which has decided on his or her rights and obligations , or with respect to a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional rights ) ... \u201d","The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL\/CARDINAL and CARDINAL ) read as follows :","\u201c ( CARDINAL ) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by LAW .","( CARDINAL ) The right to respect for one \u2019s personal integrity within the meaning of this LAW includes the right to life , physical and mental health , good reputation and honour , the right to be respected , the right to respect for one \u2019s name and privacy of personal and family life , freedom , et alia .","... \u201d","\u201c Damage is ... infringement of the right to respect for one \u2019s personal dignity ( nonpecuniary damage ) . \u201d","The relevant part of section ORG ) of LAW ( Zakon o parni\u010dnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) reads as follows :","\u201c A person intending to bring a civil suit against GPE shall first submit a request for settlement to the competent ORG .","...","Where the request has been refused or no decision has been taken within DATE of its submission , the person concerned may file an action with the competent court .","... \u201d","The relevant provisions of ORG o izvr\u0161avanju kazne zatvora , ORG nos . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL ) read as follows :","\u201c ( CARDINAL ) An inmate may lodge a request for judicial review of any acts or decisions unlawfully denying him , or limiting , any of the rights guaranteed by LAW .","( CARDINAL ) NORP for judicial review shall be decided by the sentence - execution judge . \u201d","( CARDINAL ) A sentence - execution judge protects the rights of prisoners , supervises the legality of the execution of a prison term and ensures equality of prisoners before the law .","( CARDINAL ) A sentence - execution judge takes acts and decides in respect of :","...","Judicial review of [ ORG ] rights by deciding on appeals lodged against a decision of a prison governor in cases prescribed by this LAW ;","... \u201d","\u201c ( CARDINAL ) Proceedings before a sentence - execution judge are initiated at first instance upon a request by a party or by a judge and at second instance upon an appeal .","( CARDINAL ) A sentence - execution judge acts so as to , according to basic principles , ensure the effective protection of the rights and interests of the prisoner concerned . ... The judge shall allow the parties to submit their observations about the facts [ presented by ] and allegations put forward by the opponent , and to present new facts and call for evidence .","( CARDINAL ) The parties to the proceedings are the prisoner and the prison or penal institution .","( CARDINAL ) A prisoner has the right to a lawyer of his or her own choice . Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings . When a prisoner does not ensure legal representation within TIME , the proceedings shall continue without legal representation .","( CARDINAL ) A prisoner may ask for a legal - aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests .","( CARDINAL ) A sentence - execution judge may consult all official documents concerning a prisoner , pay a visit to the prison or penal institution concerned and establish the relevant facts in any other manner .","( CARDINAL ) A sentence - execution judge may hold a hearing in appropriate premises of a prison or penal institution . \u201d","( CARDINAL ) NORP Parties to the proceedings , a prisoner \u2019s representative and the persons listed in LAW may lodge an appeal against a decision of a sentence - execution judge adopted at first instance ...","( CARDINAL ) The appeal shall be lodged with a sentence - execution judge , who shall immediately forward it to a judicial panel of a county court . That panel shall decide within DATE ... \u201d","\u201c ( CARDINAL ) A sentence - execution judge , at the request of the convict ... may issue a decision on suspension of the execution of a prison term ...","( CARDINAL ) The sentence - execution judge shall adopt a decision under subsection ( CARDINAL ) of this section within DATE of conducting the proceedings where the reasons for suspension have been established .","( CARDINAL ) ORG may be granted on the following grounds :","Serious illness or serious exacerbation of a chronic illness which can not be treated in prison .","...","( CARDINAL ) The execution of a prison term on the ground under subsection CARDINAL ) of this section may be suspended for as long as the illness lasts ...","( CARDINAL ) ORG suspension shall not exceed DATE , save for [ a suspension granted ] on the ground under subsection CARDINAL ) of this section . \u201d","\u201c ( CARDINAL ) ORG shall be provided with medical treatment and regular care for their physical and mental health ... \u201d","\u201c Conditional release is the release of a convict before his or her prison term has expired . ... \u201d","\u201c ( CARDINAL ) A request for conditional release may be lodged by the convict ...","...","( CARDINAL ) ORG , a convict suffering from a serious illness may be conditionally released after CARDINAL of his or her prison term has expired where the prison regime does not provide conditions for his or her treatment . \u201d","\u201c ( CARDINAL ) A request ... for conditional release shall be decided on by a commission composed of a president and CARDINAL members . The commission shall be appointed by the Minister of ORG . CARDINAL of its members shall be judges recommended by ORG , one of whom shall be the President of the Commission . CARDINAL of its members shall be a Deputy ORG Attorney recommended by the ORG Attorney ; and CARDINAL shall be a sentence - execution judge appointed according to the location of the prison . CARDINAL member shall be from ORG ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81066","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2007,"docname":"CASE OF HACHETTE FILIPACCHI ASSOCIES v. FRANCE","importance":2,"conclusion":"No violation of Art. 10","judges":"Christos Rozakis","text":["In its CARDINAL DATE edition the NORP DATE magazine ORG , published by the applicant company , featured an article in its \u201c News \u201d section entitled ' PERSON assassin\u00e9e ' ( GPE ) , concerning the murder of the Prefect PERSON in GPE , Corsica , on DATE .","The article was illustrated by a photograph of the scene , taken moments after the murder , showing the prefect 's body lying on the ground .","The article was published DATE after the murder , by which time the news had been extensively covered and commented on in the media , both in the printed press and on television , including the national channels .","The magazine 's CARDINAL - page colour photograph showed Mr PERSON 's lifeless body lying on the ground , his face turned partly towards the camera . In the right hand corner of the picture , under the headline ' PERSON assassin\u00e9e ' , the following commentary could be read :","\u201c On this GPE pavement , on DATE at TIME , PERSON , ORG , wrote a tragic page in our history with his blood . No prefect had been killed in GPE since PERSON in DATE ... In DATE the bullets fired into the back of this unarmed man , who was on his way to listen to PERSON 's \u201c Heroic Symphony \u201d , will shake all those who thought terror was something you get used to out of their stupor . In the book of condolences opened at the prefecture , many NORP , proud as they are reputed to be , will write their \u201c shame \u201d . They will applaud President PERSON when , at the memorial in GPE to all those who gave their lives for GPE , he reaffirms the values of the Republic . Values which , DATE , have become a challenge . \u201d","On DATE PERSON widow and children lodged an urgent application against several companies ( including the applicant company ) seeking the seizure , under LAW , of all copies of magazines containing the aforesaid photograph ( including ORG ) and prohibition of their sale on penalty of fines . They also sought an award of damages in the sum of MONEY ( ORG ) payable jointly and severally by the defendants .","The claimants submitted that the purpose of publishing the photograph of the bloody , mutilated body of ORG was by no means to inform the public but purely commercial , and constituted a particularly intolerable infringement of their right to respect for their private life .","NORP The defendant companies replied that the picture of a person who died in a public place because of the post he occupied could not constitute either a violation of his family 's right to respect for their private life or a manifestly unlawful infringement warranting the intervention of the urgent - applications judge when the picture had been published in the context of a political and judicial event that amounted to a national tragedy and , furthermore , had been published and disseminated by numerous other press agencies and television channels , including public ones .","By an order of CARDINAL DATE , the President of the GPE tribunal de grande instance , under LAW of LAW , found against the applicant company and the other defendant companies for the following reasons :","\u201c ... the claimants contend that , in spite of being put on notice , the DATE magazines ORG and ORG published in their editions which went on sale on CARDINAL DATE a photograph of the bloody , mutilated body of PERSON , ORG , who was murdered in GPE on DATE ;","... it is established that the public 's right to information authorises a newspaper to inform its readers , in words or in pictures , of any exceptional event that amounts , as in this case , to a national tragedy , drawing it to the attention of public opinion ;","... this fundamental right has its limits only in a publication which is particularly intolerable , because the excessively serious nature of the text or picture is liable to cause the victims unbearable distress , the nature and extent of which are for the urgent - applications judge to determine , in keeping with the provisions of LAW of LAW ;","... in the instant case the publication of the photograph showing the dead body of Prefect PERSON lying in the street can not but constitute an intolerable injury to the feelings of the claimants , who have undergone a particularly serious emotional shock in view of the exceptional circumstances of the murder ;","... the need for information can not justify the existence of such an infringement DATE even if the photograph in issue , which was taken in a public place , was touched up and published by different news sources \u2013 without every effort being made to preserve the dignity of the murdered prefect 's body and show a minimum of consideration for the feelings of the claimants , for whom time had not yet alleviated the horror of their ordeal ;","... however ... a seizure order would be unenforceable in practice , and disproportionate to the nature of the infringement complained of , for which compensation could be sought in court ... \u201d","The urgent - applications judge ordered the applicant company to publish the following statement at its own expense in the following issue of ORG , in a box measuring QUANTITY by QUANTITY , under the heading \u201c Court - ordered statement \u201d in bold characters QUANTITY high :","\u201c By order of CARDINAL DATE , the GPE tribunal de grande instance , acting on an application in urgent proceedings , declared that the photograph published by ORG in its DATE issue , showing the dead body of the Prefect PERSON , caused PERSON and her children considerable distress . \u201d","The applicant company appealed against that order , submitting that the measure concerned amounted to a violation of press freedom and the right to inform guaranteed under LAW . It argued that the photograph in issue was the dark , subdued image of a historic event and , as such , could not constitute an intrusion into the PERSON family 's private life . The applicant company also disputed the alleged indecency of the photograph .","In a judgment delivered on DATE ORG upheld the interim order , but modified the content of the statement . Having had regard , in particular , to LAW , ORG ruled that :","\u201c ... under the provisions of LAW , exercise of the right to freedom of expression may be subject to such penalties as are prescribed by law and are necessary in a democratic society for the protection of the rights of others ;","... LAW embodies a penalty that meets the requirements of the aforesaid provisions , namely that judges may , without prejudice to a right to compensation for damage sustained , order any measures , such as seizure , attachment and others , that may prevent an intrusion into private life or cause it to cease ; in the event of urgency such measures may be ordered on an interlocutory application . \u201d","... in the instant case ... the offending photograph , as published ... by the DATE ORG , clearly shows the body and face of PERSON , lying on the ground in a street in GPE in the moments following his murder on DATE ;","... the publication of that photograph at a time when PERSON close family was still in mourning , as it was done without their consent , constituted a gross intrusion into their grief and , accordingly , the intimacy of their private life ;","... in the presence of such an intrusion an urgent - applications judge who finds , as in the instant case , that he is unable materially to make the intrusion cease , by a seizure measure , for example , is empowered by the last of the laws mentioned above to prescribe any other appropriate measure ;","... it follows that the measure of publishing a statement prescribed by the first judge is legally justified under the provisions of LAW , provided that its purpose is to cause the intrusion into the PERSON family 's private life to cease ;","... in order to satisfy that requirement , the content of the statement should be modified in the manner prescribed in the operative provisions of this judgment , and the decision ordering its publication should be combined with a fine ... \u201d .","ORG ordered the publication , in the first issue of ORG to be published after the judgment had been served , of a statement worded as follows :","\u201c ... in bold characters QUANTITY high , under the heading \u201c Publication of court judgment \u201d , in a box measuring QUANTITY :","\u201c In a judgment of DATE , ORG ordered the publication of the following statement :","The photograph of the body of PERSON lying on the ground in a street in GPE which appeared in edition CARDINAL of the DATE ORG , dated DATE , was published without the consent of PERSON family , who consider its publication as an intrusion into the intimacy of their private life \u201d ... \u201d","The applicant company lodged an appeal on points of law , claiming among other things that there had been a violation of LAW .","In a judgment of DATE ORG dismissed the appeal for the following reasons :","\u201c ... having noted that the photograph published clearly showed the body and face of the murdered prefect lying on the ground in a street in GPE , ORG was able to rule that the picture concerned showed disregard for human dignity and that its publication was illegal , its decision thus being legally justified with regard to the requirements of LAW ... \u201d .","The PERSON family brought no proceedings on the merits .","Article CARDINAL reads as follows :","\u201c In all urgent cases the President of the tribunal de grande instance may order any interim measures which are not seriously disputable or are justified by the existence of a dispute . \u201d","Article CARDINAL reads as follows :","\u201c The president may order at any time , even in the event of a serious dispute , such measures to preserve or restore the present position as are necessary either to prevent imminent damage or to put an end to a manifestly unlawful infringement .","Where the existence of an obligation is not seriously disputable , he may award an advance to the entitled party , or order the execution of the obligation , even if it is an obligation to take action . \u201d","Article CARDINAL provides :","\u201c Everyone has the right to respect for his private life .","Judges may , without prejudice to a right to compensation for damage sustained , order any measures , such as seizure , attachment and others , that may prevent an intrusion into private life or cause it to cease ; in the event of urgency such measures may be ordered on an interlocutory application . \u201d","Article CARDINAL of the Civil Code provides as follows :","\u201c The law ensures the primacy of the person , prohibits any infringement of a person 's dignity and guarantees respect for the human being from the beginning of life . \u201d","Section CARDINAL , paragraph CARDINAL , of the version in force at the material time DATE which was repealed on DATE \u2013 provided :","\u201c [ A fine of MONEY ] shall be applicable in established cases of publication , by any means , of photographs , engravings , drawings or portraits reproducing all or part of the circumstances of any of the crimes and offences provided for in chapters I , II and VII of part II of book II of the Criminal Code . \u201d [ which cover murder , among other things ] ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101204","languageisocode":"ENG","respondent":"RUS","branch":"COMMITTEE","date":2010,"docname":"CASE OF KARASEV v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)","judges":"Anatoly Kovler;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in ORG .","On DATE the applicant and CARDINAL other individuals were detained on suspicion of having committed an assault and infliction of grave bodily harm resulting in death . The applicant \u2019s challenge of the custodial measure of restraint was rejected on DATE .","On DATE the preliminary investigation was completed . The applicant did not study the case materials as his legal counsel were unable to assist him at the time due to illness and involvement in different proceedings .","On DATE the applicant signed the undertaking not to leave the town and was released . He and his counsel did not appear at the investigator \u2019s summons to study the case materials .","From DATE to CARDINAL DATE the applicant stayed in hospital . Following his and his counsel \u2019s repeated failure to familiarise themselves with the case materials , the investigator set the deadline at DATE .","On DATE after finalising the bill of indictment the prosecutor decided again to place the applicant in detention , which was subsequently extended by the court on several occasions and upheld by decisions of CARDINAL DATE , DATE , DATE , DATE and CARDINAL DATE of ORG ( \u201c the ORG \u201d ) .","ORG of the Ryazan Region received the applicant \u2019s case for examination on DATE . By decision of CARDINAL DATE the court adjourned the proceedings due to the applicant \u2019s illness .","The next hearing scheduled for DATE did not take place due to the ORG failure to appear .","At the hearing of DATE the applicant requested that he be given DATE to study the case - file but could not do so as both of his counsel were on vacation . On DATE the court limited the time granted to the applicant to study the case - file by DATE .","The next hearing scheduled for DATE did not take place due to the judge \u2019s illness .","On DATE president of ORG requested that president of ORG assign the applicant \u2019s case to a different trial court due to the fact that the judge who was considering it was ill and the other judges had already taken part in the proceedings in some form and could not examine the case . On DATE the applicant \u2019s case was transferred to ORG of LOC ( \u201c the ORG \u201d ) .","At the next hearing scheduled for DATE the court granted the defence \u2019s request for an outpatient psychiatric examination and a graphologic examination .","On DATE the court commissioned an inpatient psychiatric examination which was held on DATE . The applicant did not object to the composition of the trial court and did not challenge the judges .","DATE and DATE twenty two scheduled hearings did not take place due to the ORG failure to appear ; on CARDINAL occasions it was the default of the applicant \u2019s counsel . Following the applicant \u2019s refusal to continue examination of the case in his counsel \u2019s absence , on several occasions president of ORG requested replacement of the counsels at the FAC and ORG regional bars as well as ORG . It is not clear whether or when this measure became successful .","On DATE , in presence of the applicant \u2019s legal counsel , ORG convicted the applicant as charged and sentenced him to DATE imprisonment . It also granted the civil suit again him .","In his grounds of appeal the applicant challenged the bench which had delivered the conviction alleging defects in the appointment of the lay judges .","On DATE ORG upheld the judgment on appeal . It also found that the trial court had been composed in accordance with the law and that the applicant had failed to challenge the bench during the trial .","Article CARDINAL of LAW of DATE provides that in the event of a counsel \u2019s failure to appear during DATE after a motion for legal assistance , the court may invite the accused to retain a different counsel or assign a legal - aid lawyer ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4716","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":1999,"docname":"RUDZINSKA v. POLAND","importance":1,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant is a NORP citizen born in DATE . She is a student residing in ORG .","A.","In DATE the applicant \u2019s father opened on her behalf a special housing savings account in ORG in GPE , with the purpose of financing a future purchase of a house or apartment for the applicant after her coming of age . Until DATE he effected DATE payments to the account .","On DATE , on the applicant \u2019s request , the ORG branch of ORG informed her that her savings accumulated on the account amounted to a sum of CARDINAL of new NORP zlotys ( PLZ ) , including a housing award , in case she was entitled to it .","In a letter to the Director of the ORG branch of ORG , the applicant submitted that the then real value of a house in ORG was equivalent to CARDINAL PLZ . Thus , there must have been an error in the calculation of her savings , as the terms of the housing savings account guaranteed her that at the closing of the account the monies deposited on it would be reassessed so as to maintain their purchasing power to the level of price of QUANTITY of an individual house . She pointed out that the sum she had on her account was not in reasonable proportion to the current price of housing . She therefore requested that the error be rectified .","In his reply of DATE , the Director informed the applicant that the calculation of her savings , and in particular of sums due to her as housing award , had been correct . Under the applicable regulations contained in the Ordinance of ORG DATE , concerning the manner of calculation and payment of housing award and on clearing of accounts between ORG and ORG , the following factors were taken into account in the calculation of the award : the length of the period of saving , the sums deposited by the client , the sums paid DATE , the average price of housing and the interest rate applicable throughout the relevant period . It was further stressed that the owner of the account was entitled to the housing award calculated on the basis of sums paid in DATE during which the average price of QUANTITY of housing had been rising more quickly than the interest rate to be paid on the sums deposited on the housing savings account . In conclusion , the calculation of the sums accumulated on the applicant \u2019s savings account which had been effected according to the formula set forth in the GPE , was correct .","In a letter to the Minister of Finance of DATE , the applicant submitted that the sums as calculated by the bank would cover the price of QUANTITY of housing at current market prices . Therefore , contrary to the terms of the housing savings account , guaranteed by the ORG , she would not be able to purchase a house . She complained that this amounted to fraud , which should not be countenanced by the ORG . She requested that her savings be reassessed .","In a letter of DATE ORG of ORG informed the applicant that the savings accumulated on the housing savings accounts were subject to CARDINAL forms of reassessment with the purpose of offsetting the effects of inflation . The first one was the privileged interest rate which , since DATE , was equal to that applicable in respect of long - term savings accounts . Secondly , the owners of the accounts could be awarded housing awards paid directly from the ORG budget . These awards were designed to compensate the reduction of value of sums accumulated on the housing savings accounts caused by inflation and by augmentation of prices of housing resulting therefrom . However , the sums of awards due to individual clients were to be calculated on the basis of the savings accumulated by the client . It was further stressed that , in practice , most often the owners of such accounts accumulated sums equivalent to CARDINAL per cent of the necessary minimum contribution to be paid to housing co - operatives in order to become a full member ( \u201c wk\u0142ad \u201d ) . The expectation that the housing award would cover in full the difference between this sum and the actual full costs of building of a house was not justified . The applicant was further informed that it was only the bank at which the account had been opened which was competent to reassess the sums of savings deposited on the account .","On DATE the applicant complained to the ORG about her situation .","In reply of DATE the ORG informed the applicant that he had repeatedly drawn the attention of various ORG authorities , including the Prime Minister , ORG , the Minister of Construction and Planning , to the issues raised by her . These problems arose out of the fact that the persons who had been saving , frequently for DATE , on the housing savings accounts , were often not in a position to pay the entire price of housing . This was , in part , due to the fact that the issues relating to housing awards , the interest rate applicable to housing savings accounts and the reassessment of the sums deposited on these accounts so as to offset in full the results of inflation had not been comprehensively resolved by the legislator in a manner which would be entirely compatible with the initial obligations of the ORG . Regrettably , the ORG did not have at his disposal any effective means which would enable him to oblige the legislative and executive authorities to take any steps to solve the problems of persons in the applicant \u2019s situation , who had expected that they would be able to finance their housing under the scheme put in place by the DATE legislation . Consequently , he could take no further action in the applicant \u2019s case .","B. Relevant domestic law","Pursuant to the terms of the housing savings account , as set out in the Ordinance of the President of ORG of DATE , the ORG guaranteed that the monies accumulated on the housing savings account in ORG were to be reassessed so as to maintain their purchasing power . This guaranty covered only sums up to the costs of construction of either QUANTITY at an individual family house or QUANTITY of an apartment built by a housing co - operative . This guarantee was to be paid in the form of a housing award . The owner of the account was entitled to obtain the housing award if , in DATE in which he or she wished to close his or her account and allocate the monies accumulated on it to finance the purchase of a house or apartment , the average price of QUANTITY of housing was higher than it had been in DATE , and this increase had been higher than the increase of the interest rate applicable to the monies deposited on the housing savings account .","Under ORG the persons who have accumulated savings on the housing savings accounts in ORG opened before DATE , which had remained opened for not DATE , were entitled to housing award if they had bought or built a house or apartment , or adapted non - housing space to housing purposes and had paid for it from their own resources . It was ORG which financed those payments and technically they were to be carried out by ORG .","In its resolution of DATE ORG decided that under the provisions of LAW as amended in DATE , the housing savings were not subject to reassessment by ORG which would offset the results of inflation in full . In taking this decision the ORG had regard to the provisions of LAW pertaining to a possibility of reassessment of pecuniary obligations in view of inflation . These provisions expressly excluded such a possibility in respect of sums deposited on bank accounts .","As regards the housing savings awards , ORG further decided that those awards were not subject to reassessment either . The ORG observed , inter alia , that the problem concerned CARDINAL citizens who had accumulated housing savings . A reassessment of the housing awards for all the persons concerned by ORG would not be economically feasible as it would put an undue burden on the ORG budget . The ORG further observed that , in any event , ORG DATE provided for a partial reassessment of such awards in the circumstances and on the conditions set forth therein ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86479","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"SWINDLEHURST v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE . In DATE , the applicant made a claim for widows\u2019 benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant applied for reconsideration . On DATE reconsideration took place and the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59454","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":2001,"docname":"CASE OF CYPRUS v. TURKEY","importance":1,"conclusion":"No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);No violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 13+9 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+P1-2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 of Protocol No. 1 - Right to education;Right to education-{general});No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 8 - Right to respect for private and family life;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)","judges":"Luzius Wildhaber","text":["The complaints raised in this application arise out of the NORP military operations in northern GPE in DATE and DATE and the continuing division of the territory of GPE . At the time of the ORG 's consideration of the merits of the PERSON v. GPE case in DATE , the NORP military presence at the material time was described in the following terms ( PERSON v. GPE judgment of DATE ( merits ) , Reports of Judgments and Decisions CARDINAL-VI , p. CARDINAL , LAW DATE ) :","\u201c CARDINAL . NORP armed forces of more than QUANTITY personnel are stationed throughout the whole of the occupied area of northern GPE , which is constantly patrolled and has checkpoints on all main lines of communication . The army 's headquarters are in GPE . ORG is based in PERSON ( PERSON ) with its sector covering GPE to the PERSON Milia suburb of GPE and with CARDINAL personnel . ORG , with CARDINAL personnel , is based at GPE village , and its sector ranges from GPE village to GPE . ORG ( NORP Forces in GPE under LAW ) is stationed at GPE near GPE , with a sector running from FAC to LOC . A NORP naval command and outpost are based at GPE and PERSON respectively . NORP airforce personnel are based at PERSON , PERSON and other airfields . The NORP airforce is stationed on the NORP mainland at GPE .","The NORP forces and all civilians entering military areas are subject to NORP military courts , as stipulated so far as concerns ' GPE citizens ' by ORG of DATE ( section CARDINAL ) and LAW . \u201d","A major development in the continuing division of GPE occurred in DATE with the proclamation of the \u201c GPE \u201d ( the \u201c LOC \u201d ) and the subsequent enactment of the \u201c LAW \u201d on DATE .","This development was condemned by the international community . On DATE ORG adopted Resolution CARDINAL ( DATE ) declaring the proclamation of the establishment of the \u201c GPE \u201d legally invalid and calling upon all GPE not to recognise any ORG other than GPE . A similar call was made by ORG on DATE in its LAW ( DATE ) . In DATE ORG decided that it continued to regard the government of GPE as the sole legitimate government of GPE and called for respect of the sovereignty , independence , territorial integrity and unity of GPE .","According to the respondent Government , the \u201c TRNC \u201d is a democratic and constitutional ORG which is politically independent of all other sovereign GPE including GPE , and the administration in northern GPE has been set up by the NORP - NORP people in the exercise of its right to self - determination and not by GPE . Notwithstanding this view , it is only the NORP government which is recognised internationally as the government of GPE in the context of diplomatic and treaty relations and the working of international organisations .","ORG peacekeeping forces ( \u201c UNFICYP \u201d ) maintain a buffer - zone . A number of political initiatives have been taken at the level of ORG aimed at settling the GPE problem on the basis of institutional arrangements acceptable to both sides . To this end , inter - communal talks have been sponsored by the Secretary - General of ORG acting under the direction of ORG . In this connection , the respondent Government maintain that the NORP - Cypriot authorities in northern GPE have pursued the talks on the basis of what they consider to be already agreed principles of bi - zonality and bi - communality within the framework of a federal constitution . Support for this basis of negotiation is found in the ORG Secretary - General 's Set of Ideas of DATE and the ORG resolutions of CARDINAL DATE and CARDINAL DATE confirming that a federal solution sought by both sides will be \u201c bi - communal \u201d and \u201c bi - zonal \u201d .","Furthermore , and of relevance to the instant application , in DATE ORG on Missing Persons ( \u201c CMP \u201d ) was set up to \u201c look into cases of persons reported missing in the inter - communal fighting as well as in the events of DATE and afterwards \u201d and \u201c to draw up comprehensive lists of missing persons of both communities , specifying as appropriate whether they are still alive or dead , and in the latter case approximate times of death \u201d . The ORG has not yet completed its investigations .","The events of DATE and DATE and their aftermath gave rise to CARDINAL previous applications by the applicant Government against the respondent ORG under former LAW . The first ( no . CARDINAL ) and second ( no . CARDINAL ) applications were joined by the ORG and led to the adoption on DATE of a report under former LAW ( \u201c the DATE report \u201d ) in which the ORG expressed the opinion that the respondent ORG had violated ORG , CARDINAL , DATE , DATE , CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL . On DATE ORG turn adopted , with reference to an earlier decision of DATE , ORG ( CARDINAL ) CARDINAL in which it expressed , inter alia , the conviction that \u201c the enduring protection of human rights in GPE can only be brought about through the re - establishment of peace and confidence between the CARDINAL communities ; and that inter - communal talks constitute the appropriate framework for reaching a solution of the dispute \u201d . In its resolution ORG strongly urged the parties to resume the talks under the auspices of the Secretary - General of ORG in order to agree upon solutions on all aspects of the dispute ( see paragraph CARDINAL above ) . ORG viewed this decision as completing its consideration of the case .","The third application ( no . CARDINAL\/CARDINAL ) lodged by the applicant Government was the subject of a further report under former DATE adopted by ORG on DATE ( \u201c the DATE report \u201d ) . In that report the ORG expressed the opinion that the respondent ORG was in breach of its obligations under LAW No . CARDINAL . On DATE ORG CARDINAL ) CARDINAL in respect of the ORG 's DATE report . In its resolution ORG limited itself to a decision to make the DATE report public and stated that its consideration of the case was thereby completed .","The instant application is the first to have been referred to the ORG . The applicant ORG requested ORG in their memorial to \u201c decide and declare that the respondent ORG is responsible for continuing violations and other violations of ORG CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL of the Convention and of Articles CARDINAL and CARDINAL of Protocol No . CARDINAL \u201d .","These allegations were invoked with reference to CARDINAL broad categories of complaints : alleged violations of the rights of NORP - Cypriot missing persons and their relatives ; alleged violations of the home and property rights of displaced persons ; alleged violations of the rights of enclaved NORP in northern GPE ; alleged violations of the rights of NORP and the Gypsy community in northern GPE .","The ORG considers it appropriate at this stage to summarise the ORG 's findings of fact in respect of the various violations of the ORG alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the ORG .","NORP The applicant Government essentially claimed in their application that CARDINAL NORP Cypriots were still missing DATE after the cessation of hostilities . These persons were last seen alive in NORP custody and their fate has never been accounted for by the respondent State .","The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody . In their principal submission , the issues raised by the applicant Government should continue to be pursued within the framework of ORG on Missing Persons ( see paragraph CARDINAL above ) rather than under the Convention .","The Commission proceeded on the understanding that its task was not to establish what actually happened to the NORP - Cypriot persons who went missing following the NORP military operations conducted in northern GPE in DATE and DATE . Rather , it saw its task as CARDINAL of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention .","To that end , the ORG had particular regard to its earlier findings in its DATE and DATE reports . It recalled that in its DATE report it had stated that it was widely accepted that a considerable number of NORP were still missing as a result of armed conflict in GPE and that a number of persons declared to be missing were identified as NORP Cypriots taken prisoner by the NORP army . This finding , in the ORG 's opinion at the time , created a presumption of NORP responsibility for the fate of persons shown to be in NORP custody . While noting that killings of NORP - Cypriot civilians had occurred on a large scale , the ORG also considered at the time of its DATE report that it was unable to ascertain whether , and under what circumstances , NORP - Cypriot prisoners declared to be missing had been deprived of their life .","In the present case , the ORG further recalled that in its DATE report it found it established that there were sufficient indications in an indefinite number of cases that missing NORP Cypriots had been in NORP custody in DATE and that this finding once again created a presumption of NORP responsibility for the fate of these persons .","The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in NORP or NORP - Cypriot custody . In this connection , the Commission had regard to the following : a statement of Mr PERSON , \u201c President of the NORP \u201d , broadcast on DATE , in which he admitted that CARDINAL NORP - Cypriot prisoners were handed over to NORP - NORP fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to GPE ; the broadcast statement of Professor PERSON , a former NORP officer who had served in the NORP army at the time and participated in the DATE military operation in GPE , in which he suggested that the NORP army had engaged in widespread killings of , inter alia , civilians in so - called cleaning - up operations ; ORG submitted to ORG in DATE indicating , inter alia , that NORP and NORP - Cypriot soldiers rounded up NORP - Cypriot civilians in the village of PERSON on DATE and took away males over DATE , most of whom were reportedly killed by NORP - NORP fighters ; the written statements of witnesses tending to corroborate the ORG 's earlier findings that many persons now missing were taken into custody by NORP soldiers or NORP - Cypriot paramilitaries .","The Commission concluded that , notwithstanding evidence of the killing of NORP - Cypriot prisoners and civilians , there was no proof that any of the missing persons were killed in circumstances for which the respondent ORG could be held responsible ; nor did the ORG find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent ORG . On the other hand , the ORG found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims ' relatives .","The Commission further concluded that its examination of the applicant ORG 's complaints in the instant application was not precluded by the ongoing work of the ORG . It noted in this connection that the scope of the investigation being conducted by the ORG was limited to determining whether or not any of the missing persons on its list were dead or alive ; nor was the ORG empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established . Furthermore , the territorial jurisdiction of the ORG was limited to the island of GPE , thus excluding investigations in GPE where some of the disappearances were claimed to have occurred . ORG also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the ORG 's investigation could extend to actions by the NORP army or NORP officials on NORP territory .","The Commission established the facts under this heading against the background of the applicant ORG 's principal submission that CARDINAL displaced NORP Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern GPE and from having access to their property there for any purpose . The applicant Government submitted that the presence of the NORP army together with \u201c TRNC\u201d-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and , as a corollary , that their cross - border family visits were gravely impeded . What started as a gradual and continuing process of illegality over DATE had now resulted in the transfer of the property left behind by the displaced persons to the \u201c TRNC \u201d authorities without payment of compensation and its re - assignment , together with \u201c title deeds \u201d , to ORG bodies , NORP Cypriots and settlers from GPE .","The respondent Government maintained before the ORG that the question of the LOC district of LOC along with the issues of freedom of movement , freedom of settlement and the right of property could only be resolved within the framework of the inter - communal talks ( see paragraph CARDINAL above ) and on the basis of the principles agreed on by both sides for the conduct of the talks . Until an overall solution to the GPE question , acceptable to both sides , was found , and having regard to security considerations , there could be no question of a right of the displaced persons to return . The respondent Government further submitted that the regulation of property abandoned by displaced persons , as with restrictions on cross - border movement , fell within the exclusive jurisdiction of the \u201c GPE \u201d authorities .","The Commission found that it was common knowledge that with the exception of CARDINAL NORP living in the NORP area and NORP living in the NORP peninsula , the whole NORP - Cypriot population which before DATE resided in the northern part of GPE had left that area , the large majority of these people now living in southern GPE . The reality of this situation was not contested by the respondent Government .","The Commission noted with reference to its earlier findings in its DATE and DATE reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application . Accordingly , and this was not disputed either by the respondent Government , displaced NORP Cypriots had no possibility of returning to their homes in northern GPE and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the NORP army . The arrangements introduced by the \u201c LOC \u201d authorities in DATE to allow NORP and NORP to cross into northern GPE for the purposes of family visits or , as regards NORP Cypriots , visits to LOC , did not affect this conclusion .","Nor did the respondent Government dispute the fact that NORP - Cypriot owners of property in northern GPE continued to be prevented from having access to , controlling , using and enjoying their property . As to the fate of that property , the ORG found it established that up until DATE there was an administrative practice of the NORP - Cypriot authorities to leave the official ORG unaffected and to register separately the \u201c abandoned \u201d property and its allocation . The beneficiaries of allocations were issued with \u201c possessory certificates \u201d but not \u201c deeds of title \u201d to the properties concerned . However , as from DATE the practice changed and thereafter \u201c title deeds \u201d were issued and the relevant entries concerning the change of ownership were made in ORG . The ORG found it established that , at least since DATE , the NORP - Cypriot authorities no longer recognised any ownership rights of NORP Cypriots in respect of their properties in northern GPE . The ORG found confirmation for this finding in the provisions of \u201c LAW ( b ) of LAW \u201d of CARDINAL DATE and \u201c Law no . CARDINAL \u201d purporting to give effect to that provision .","Although the respondent Government pointed out in their submissions to the ORG that the issue of the right of displaced NORP Cypriots to return to their homes was a matter to be determined within the framework of the inter - communal talks sponsored by the Secretary - General of ORG ( see paragraph CARDINAL above ) , the Commission found that there had been no significant progress in DATE in the discussion of issues such as freedom of settlement , payment of compensation to NORP Cypriots for the interference with their property rights , or restitution of NORP - Cypriot property in the Varosha district .","The applicant Government adduced evidence in support of their complaint that the dwindling number of NORP living in the NORP peninsula of northern GPE were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity . In addition to the harassment and intimidation which they suffered at the hands of NORP settlers , and which has gone unpunished , the enclaved NORP laboured under restrictions which violated many of the substantive rights contained in the Convention . The continuous DATE interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the \u201c GPE \u201d courts . Similar but less extensive restrictions applied to the NORP population living in the NORP area of northern GPE .","The respondent Government maintained before the ORG that effective judicial remedies were available to all NORP Cypriots living in northern GPE . However , they claimed that the applicant Government actively discouraged them from taking proceedings in the \u201c TRNC \u201d . The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made .","The Commission established the facts under this heading with reference to materials submitted by both ORG . These materials included , inter alia , written statements of persons affected by the restrictions alleged by the applicant Government ; press reports dealing with the situation in northern GPE ; case - law of the \u201c NORP \u201d courts on the availability of remedies in the \u201c GPE \u201d ; \u201c GPE legislation \u201d and decisions of the \u201c ORG \u201d on entry and exit arrangements at FAC check - point . ORG also had regard to ORG documents concerning the living conditions of enclaved NORP and especially to the ORG Secretary - General 's progress reports of DATE and CARDINAL DATE on the humanitarian review carried out by ORG in DATE concerning the living conditions of ORG , the so - called \u201c PERSON \u201d .","Furthermore , the ORG 's delegates heard the evidence of CARDINAL witnesses on the situation of NORP Cypriots and NORP living in northern GPE . These witnesses comprised CARDINAL persons who were closely associated with the preparation of the \u201c PERSON Brief \u201d as well as persons proposed by both ORG . The delegates also visited , on CARDINAL and DATE , a number of localities in northern GPE , including NORP - Cypriot villages in the PERSON area , and heard statements from officials and other persons encountered during the visits .","The Commission considered the above - mentioned \u201c PERSON Brief \u201d an accurate description of the situation of the enclaved NORP - Cypriot and NORP populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by ORG following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time . Although the ORG noted that there had been a considerable improvement in the overall situation of the enclaved populations , as evidenced by the ORG Secretary - General 's progress reports on the \u201c PERSON Brief \u201d recommendations , there still remained a number of severe restrictions . These restrictions were not laid down in any \u201c GPE legislation \u201d and were in the nature of administrative practices .","The Commission further found that there existed a functioning court system in the \u201c GPE \u201d which was in principle accessible to NORP living in northern GPE . It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by NORP - Cypriot litigants before the civil and criminal courts . However , in view of the scarcity of cases brought by NORP Cypriots , the ORG was led to conclude that the effectiveness of the judicial system for resident NORP Cypriots had not really been tested .","NORP In a further conclusion , the Commission found that there was no evidence of continuing wrongful allocation of properties of resident NORP Cypriots to other persons during the period under consideration . However , the ORG did find it established that there was a continuing practice of the \u201c NORP \u201d authorities to allocate to NORP or immigrants the property of NORP Cypriots who had died or left northern GPE .","In the absence of legal proceedings before the \u201c TRNC \u201d courts , the ORG noted that it had not been tested whether or not NORP or NORP living in northern GPE were in fact considered as citizens enjoying the protection of the \u201c LAW \u201d . It did however find it established that , in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the \u201c ORG \u201d , any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts .","Although the ORG found no evidence of cases of actual detention of members of the enclaved population , it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to NORP Cypriots and NORP notwithstanding recent improvements . It further observed that an exit visa was still necessary for transfers to medical facilities in the south , although no fees were levied in urgent cases . There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered ; nor was there any indication of a deliberate practice of delaying the processing of such applications .","The ORG found it established that there were restrictions on the freedom of movement of NORP - Cypriot and NORP schoolchildren attending schools in the south . Until the entry into force of the decision of the \u201c ORG \u201d of CARDINAL DATE , they were not allowed to return permanently to the north after having attained the age of DATE in the case of males and CARDINAL in the case of females . The age - limit of DATE was still maintained for NORP - Cypriot male students . Up to the age - limit , certain restrictions applied to the visits of students to their parents in the north , which were gradually relaxed . However , even DATE such visits are subject to a visa requirement and a reduced \u201c entry fee \u201d .","As to educational facilities , the Commission held that , although there was a system of primary - school education for the children of NORP living in northern GPE , there were no secondary schools for them . The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of NORP - Cypriot and NORP schoolchildren to the north after the completion of their studies had led to the separation of many families . Furthermore , school textbooks for use in the NORP - Cypriot primary school were subjected to a \u201c vetting \u201d procedure in the context of confidence - building measures suggested by ORG . The procedure was cumbersome and a relatively high number of school - books were being objected to by the NORP - Cypriot administration .","Aside from school - books , the ORG found no evidence of any restrictions being applied during the period under consideration to the importation , circulation or possession of other types of books ; nor was there evidence of restrictions on the circulation of newspapers published in southern GPE . However , there was no regular distribution system for the NORP - Cypriot press in the PERSON area and no direct post and telecommunications links between the north and south of the island . It was further noted that the enclaved population was able to receive NORP - Cypriot radio and television .","The Commission did not find any conclusive evidence that letters destined for NORP Cypriots were opened by the \u201c GPE \u201d police or that their telephones were tapped .","As to alleged restrictions on religious worship , the ORG found that the main problem for NORP Cypriots in this connection stemmed from the fact that there was CARDINAL priest for the whole NORP area and that the NORP - Cypriot authorities were not favourable to the appointment of additional priests from the south . The Commission delegates were unable to confirm during their visit to the NORP area whether access to LOC was free at any time for NORP Cypriots . It appeared to be the case that on high religious holidays ( which occur CARDINAL times a year ) visits to the monastery are also allowed to NORP Cypriots from the south .","Concerning alleged restrictions on the freedom of association of the enclaved population , the ORG observed that the relevant \u201c GPE \u201d law on associations only covered the creation of associations by NORP .","The applicant Government contended before the ORG that NORP living in northern GPE , especially political dissidents and the ORG , were the victims of an administrative practice of violation of their Convention rights . They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention , police misconduct , discrimination and ill - treatment and interferences in various forms with other Convention rights such as , inter alia , fair trial , private and family life , expression , association , property and education .","The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the \u201c GPE \u201d to aggrieved persons .","The ORG 's investigation into the applicant ORG 's allegations was based mainly on the oral evidence of CARDINAL witnesses who testified before the ORG 's delegates on the situation of NORP and the Gypsy community living in northern GPE . The witnesses were proposed by both parties . Their evidence was taken by the delegates in GPE , GPE and GPE DATE .","The Commission found that there existed rivalry and social conflict between the original NORP and immigrants from GPE who continued to arrive in considerable numbers . Some of the original NORP Cypriots and their political groups and media resented the \u201c LOC \u201d policy of full integration for the settlers .","Furthermore , while there was a significant incidence of emigration from the \u201c TRNC \u201d for economic reasons , it could not be excluded that there were also cases of NORP Cypriots having fled the \u201c GPE \u201d out of fear of political persecution . The Commission considered that there was no reason to doubt the correctness of witnesses ' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the \u201c GPE \u201d police . However , it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the \u201c GPE \u201d authorities , including the courts , of refusing protection to political opponents of the ruling parties . In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents , the Commission did not have sufficient details concerning the incidents complained of ( for example , the dispersing of demonstrations , short - term arrests ) which would allow it to form an opinion as to the justification or otherwise of the impugned acts . The Commission noted that , in any event , it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention .","Regarding the alleged discrimination against and arbitrary treatment of members of the NORP - Cypriot Gypsy community , the ORG found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near GPE and the refusal of airline companies to transport NORP to GPE without a visa .","In a further conclusion , the ORG observed that there was no evidence before it of NORP - Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration . Furthermore , and with respect to the evidence before it , the Commission considered that it had not been established that , during the period under consideration , there was an official prohibition on the circulation of NORP - language newspapers in northern GPE or that the creation of bi - communal associations was prevented . In respect of the alleged refusal of the \u201c GPE \u201d authorities to allow NORP to return to their properties in southern GPE , the ORG observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration ."],"violated_articles":["10","13","2","3","5","6","8","9","P1"],"violated_paragraphs":["10-1","2-1","6-1","8-1","9-1","P1-1","P1-2"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":["10","11","13","14","2","3","4","5","6","8","9","P1"],"non_violated_paragraphs":["10-1","11-1","2-1","4-1","6-1","8-1","9-1","P1-1"],"non_violated_bulletpoints":["P1-1-1"],"violated":true}
{"itemid":"001-120537","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2013,"docname":"YERMAKOVA v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Ale\u0161 Pejchal;Andr\u00e9 Potocki;Ann Power-Forde;Ganna Yudkivska;Helena J\u00e4derblom;Mark Villiger;Paul Lemmens","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON .","In accordance with LAW , the Government of GPE were invited to exercise their right to intervene in the proceedings , but they declined to do so .","The facts of the case , as submitted by the parties , may be summarised as follows .","In TIME of CARDINAL DATE an ambulance found ORG , the applicant \u2019s daughter , dead in the flat she had lived in with GPE , her husband .","At TIME on DATE the police were notified of the death . From TIME an investigator from ORG Office of Odessa , and medical and forensic experts , examined and photographed the body of ORG and the flat . They noted numerous bruises and abrasions on ORG \u2019s body , took samples of a brownish substance and seized cloths and linen with brown stains found in the flat . On DATE ORG of GPE detained GPE , and opened a criminal case against him on suspicion of inflicting serious bodily injuries on FAC causing her death . GPE , after being interviewed separately by the police and prosecutors , confessed to having punched FAC in the face and abdomen . During DATE CARDINAL neighbours were also interviewed and an autopsy and forensic medical examination of ORG \u2019s larynx ( throat ) were ordered .","On DATE an expert , PERSON . , drew up a death certificate indicating that the rupture of ORG \u2019s liver and closed injury of the abdomen , sustained during an \u201c assault with the aim of inflicting injuries \u201d , had led to significant loss of blood , which had ultimately caused her death . On DATE , CARDINAL neighbours of FAC and GPE were interviewed . GPE , in the presence of an advocate , stated that he had only slapped FAC lightly on the face a number of times , and that she herself had fallen and sustained all the injuries . He explained the discrepancy with his previous statements by his having been misled by the police on DATE and having been ill at the time of making the statement .","On DATE the applicant was recognised as an aggrieved party in the case .","On DATE a forensic medical report of the examination of ORG \u2019s larynx recorded that she had sustained a complete fracture of the hyoid bone and thyroid cartilage . The expert was unable to determine what sort of object had caused the injuries .","On DATE investigator I. of the district police ordered a postmortem and immunologic examination of ORG and questioned I.P. again .","On DATE expert PERSON . drew up an autopsy report indicating that the liver rupture , a closed fracture of the hyoid bone and thyroid cartilage , and numerous bruises and abrasions had been inflicted with a blunt object without specific features . In the expert \u2019s opinion the liver rupture had caused significant loss of blood , which had led to death . He also noted that ORG had been heavily intoxicated before her death .","An immunological report of CARDINAL DATE indicated that the items seized and samples taken from the flat occupied by ORG and GPE contained blood of the same group as that of ORG","On DATE expert PERSON . , having conducted a post - mortem examination of ORG , found that it could not be excluded that the fractures and liver rupture had been sustained as a result of the victim falling and hitting the corners of furniture .","On DATE investigator ORG discontinued the criminal proceedings against GPE for lack of corpus delicti , basing his decision on the fact that the neighbours had not noticed anything suspicious on DATE and described ORG as a peaceful person ; on ORG \u2019s admission that he had only lightly slapped ORG in the face a number of times , that both of them had been drinking and that FAC had fallen over and hit various objects on DATE ; that the flat had been cordoned off before the forensic examination of DATE ; and that according to the post - mortem examination ORG could have sustained her injuries as a result of falling and hitting protruding objects .","On DATE the district prosecutors , without giving their arguments , found the discontinuation of the proceedings premature , groundless and unlawful and instructed the district police to put the case materials in order , to set up a task force and draw up a detailed investigation plan , to carry out an additional post - mortem examination , to verify ORG \u2019s statements of CARDINAL DATE , to interview expert PERSON . , and to attach photographs of the crime - scene examination to the case file .","On DATE the investigation was suspended because ORG was ill . It was resumed on DATE , when investigator PERSON conducted a reconstruction of the crime scene , during which GPE essentially repeated his statement of CARDINAL DATE .","On DATE investigator PERSON ordered an additional post - mortem examination of FAC in order to verify ORG \u2019s statement in respect of the victim \u2019s injuries .","On DATE expert PERSON . drew up an additional post - mortem report which indicated that ORG might have sustained her serious injuries in the way described in GPE \u2019s statement .","On DATE ORG ordered a forensic medical examination of ORG","On DATE expert PERSON . was questioned .","On DATE investigator PERSON ordered an additional medical examination to be carried out in respect of the victim \u2019s injuries .","On DATE a combined forensic medical examination was carried out by experts PERSON , NORP and NORP , who concurred with the findings of the examination of CARDINAL DATE , but noted that all the injuries had been sustained shortly before ORG \u2019s death , and that the lethal injury might not have been sustained as a result of falling and hitting objects . On DATE the same experts drew up an additional medical report in which they concluded that it was impossible to establish the order in which the injuries had been inflicted .","On DATE investigator NORP charged GPE with the infliction of serious bodily injuries resulting in the death of ORG and questioned him in that connection . There is no indication of whether the investigator complied with the ORG remaining instructions .","On DATE the investigation was completed and on CARDINAL DATE the case was transferred to ORG of Odessa for trial .","On DATE a panel of psychiatrists which had been ordered by the court to examine ORG failed to reach a conclusion concerning the latter \u2019s mental state on DATE , and recommended that ORG undergo an in - patient examination .","On DATE a panel of psychiatrists examined ORG and found it impossible to establish his mental state without the accounts of GPE and GPE , who , according to ORG , had been present during the events on DATE .","On DATE the court ordered the panel to carry out another psychiatric examination of GPE","On DATE the panel found that ORG had been of sound mind after CARDINAL DATE , but that it was impossible to establish his mental state on DATE without the accounts of GPE and GPE However , on DATE an additional psychiatric examination of GPE established that he had been of sound mind both on and DATE .","In DATE the judge dealing with the case suspended the proceedings due to the expiry of his term of office .","On DATE the President of the court transferred the case to another judge .","On DATE the applicant lodged a civil claim with the court seeking CARDINAL NORP hryvnias ( ORG ) in damages for the alleged murder of her daughter .","On DATE the court convicted GPE of the premeditated infliction of serious bodily injury resulting in death , sentenced him to DATE imprisonment and ordered him to pay ORG CARDINAL to the applicant in compensation for non - pecuniary damage . In the reasoning of the judgment the court mentioned that ORG had repeatedly changed his account of the events of DATE and only in DATE and DATE had he stated that GPE , GPE , and V.A. had been present during DATE and could confirm his version of the events . The court noted a number of inconsistencies in the accounts of the events of DATE submitted by ORG and witnesses GPE and GPE , and substantial contradictions between their respective statements and those made by other witnesses .","The court also noted that the police officer who had interviewed ORG on DATE had smelled alcohol on ORG \u2019s breath and noticed fresh scratches on his neck , but could not explain why a medical examination or taking of nail samples from ORG had not been ordered . The court also noted that ORG had \u201c manipulated \u201d the investigator and the expert dealing with his case on a number of occasions in order to evade responsibility . It referred to : \u201c ... [ his ] attempt to obtain MONEY to \u2018 settle the LOC , the initial autopsy report finding that ORG \u2019s injuries might have been sustained \u2018 in a natural manner\u2019 , and the termination of the proceedings on DATE [ for lack of corpus delicti in his actions ] ... \u201d . The court also noted that some witnesses had stated that ORG had often beaten up FAC when drunk , while other witnesses had disagreed . It also referred to the experts\u2019 reports drawn up during the trial .","On DATE the ORG upheld GPE \u2019s conviction and sentence . The court noted in particular that the experts\u2019 reports of CARDINAL and DATE and photographs of the crime - scene examination rebutted a number of ORG \u2019s statements . It found the explanations put forward by the defence for the death of ORG , such as there having been an accident , or the involvement of ORG \u2019s son or other individuals , to be groundless . Concerning the conduct of the investigations , ORG found investigator ORG actions to have been inconsistent in that he had considered ORG to be unwell during the first interview but had not sent him for a medical examination . In that connection , the court of appeal concluded that the investigator had not taken \u201c the measures necessary to duly investigate the case , which had subsequently been closed without determining the circumstances of the incident \u201d . As regards the opinion by expert PERSON . of CARDINAL DATE , the court noted that it had been drawn up before the reconstruction of the crime and had later been refuted by CARDINAL panels of experts . There is no indication of the date when the applicant was informed of or received the appeal ruling , or whether she appealed against it . According to her , she was denied access to the case file during the investigation and was not invited to a number of court hearings .","In the meantime , the applicant repeatedly complained to the police , the prosecutors , ORG , ORG and other ORG bodies about the lack of progress in the case .","CARDINAL court hearings were held in the case and another twenty hearings were adjourned for various reasons , such as the applicant \u2019s failure to appear before the court on CARDINAL occasion ( which protracted the proceedings for DATE ) , the failure to appear of the defendant or his advocate , a witness \u2019s illness , prior official commitments of judges and prosecutors , or consideration of appeals by a higher court . In the course of the proceedings ORG conducted CARDINAL interviews and ordered CARDINAL expert examinations that lasted for DATE in all . During the court proceedings , the applicant filed CARDINAL procedural requests and complaints , all meeting procedural requirements . Her CARDINAL requests for the withdrawal of judges were rejected as unsubstantiated .","The provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE and CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83053","languageisocode":"ENG","respondent":"SRB","branch":"ADMISSIBILITY","date":2007,"docname":"MAKSIMOVIC v. SERBIA","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE ORG indicted the applicant for abuse of office .","On DATE ORG found the applicant guilty and imposed a suspended prison sentence ( uslovna osuda ) of DATE . The applicant appealed , claiming that the facts established in the first - instance judgment were incorrect .","On DATE ORG dismissed the applicant \u2019s appeal and upheld the first - instance judgment .","On DATE ORG filed an indictment against PERSON and the applicant in ORG for an economic offence concerning the security of payments .","Following GPE \u2019s ratification of the Convention on DATE , the applicant requested the competent court to stay the proceedings pending the outcome of the aforementioned criminal proceedings ( LAW above ) . He claimed that the CARDINAL proceedings concerned the same amounts of money and thus the same offence .","The court stayed the proceedings .","On DATE the ORG requested ORG to provide a copy of the case file in the other criminal proceedings . However , that court was unable to do so as the file had been sent to ORG following the applicant \u2019s request for a reopening of the criminal case and his subsequent appeal against the refusal to do so .","Once the proceedings resumed , hearings scheduled for DATE and DATE were adjourned because PERSON legal representative had failed to appear . On the last - mentioned date ORG fined Company B. for its failure to appear in court .","The court held the next hearing on DATE , when the applicant requested time to set out his defence in writing . The hearing scheduled for DATE was again adjourned due to the co - defendant \u2019s failure to appear . The court ordered that the legal representative of Company B. be brought to the next hearing by the police .","On DATE the ORG gave judgment acquitting both the applicant and PERSON of all charges ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81677","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF BOBEK v. POLAND","importance":3,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"","text":["The applicant was born in DATE and lives in PERSON .","The applicant , who was an advocate , made a declaration under the provisions of LAW that she had never secretly collaborated with the NORP secret service . She only admitted that DATE she had been working at ORG ( GPE ) in PERSON as an office assistant , but in DATE she had left the job .","On DATE the Commissioner of Public Interest ( PERSON ) applied to ORG ( S\u0105d Apelacyjny ) , acting as the firstinstance ORG ( s\u0105d lustracyjny ) , to institute proceedings in the applicant 's case under LAW ( ustawa lustracyjna ) on the ground that the applicant had lied in her declaration by denying her collaboration with the secret services after DATE . ( This security service was known as PERSON , but after DATE it was called PERSON . )","On DATE the applicant was notified that lustration proceedings had been instituted concerning her declaration ( o\u015bwiadczenie lustracyjne ) .","On DATE ORG , acting as the first - instance court , held a hearing in the applicant 's case . The Commissioner of Public Interest requested the court to conduct a public hearing and the applicant supported this motion . She was questioned by the court and commented on the evidence at the court 's disposal . The file of the case was composed of the applicant 's lustration declaration , copies of certain documents contained in the applicant 's file compiled by the NORP secret police and of the Commissioner 's application for lustration proceedings to be instituted . Towards the end of the hearing , both the Commissioner and the applicant declared that they had no request for further evidence to be taken by the court . The court closed the hearing .","NORP However , on DATE the applicant requested the court to take further evidence . She submitted various documents concerning her professional career , her character and morality .","On DATE the court re - opened the hearing and admitted the applicant 's documents to the case file . It then closed the hearing again .","On DATE the court sent the applicant the operative part of its judgment of DATE , by which it had found that the applicant had submitted an untrue lustration declaration because she had been an intentional , secret collaborator of the NORP secret services after DATE . It further informed the applicant that the written grounds of the judgment had been prepared under LAW and that she could consult them in the office of its secret registry ( kancelaria tajna ) . As she had not appointed legal representation , the full written grounds could only be read by herself , to the exclusion of all other persons , except the Commissioner of Public Interest .","The applicant appealed .","On DATE ORG , acting as the secondinstance lustration court , dismissed her appeal and upheld the firstinstance judgment .","On DATE the same court informed the applicant that the written grounds of that judgment had been prepared under LAW \u00a7 CARDINAL of the Code of Criminal Procedure , and that she could consult them at the office of the court 's secret registry .","The applicant lodged a cassation appeal with ORG , which held a hearing on DATE , but the applicant chose not to attend . The ORG allowed the Commissioner 's request to examine the applicant 's appeal in camera , having regard to LAW CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW . By a judgment of DATE the ORG dismissed the applicant 's cassation appeal .","\u201c Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ... \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","Under the established caselaw of ORG , it has jurisdiction only to examine the compatibility of legal provisions with the LAW and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases ( e.g. SK CARDINAL\/CARDINAL , DATE ; Ts DATE , CARDINAL DATE ; Ts CARDINAL , DATE ) .","On DATE LAW ( Ustawa o ujawnieniu pracy lub s\u0142u\u017cby w organach bezpiecze\u0144stwa pa\u0144stwa lub wsp\u00f3\u0142pracy z nimi w latach DATE os\u00f3b pe\u0142ni\u0105cych funkcje publiczne ) entered into force . Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era . It lost its binding force on DATE .","Pursuant to section CARDINAL of the LAW , \u201c collaboration \u201d was understood as the \u201c intentional and secret collaboration with the operational or investigative branches of the ORG 's security services as a secret informer or assistant , supplying them with information \u201d .","Section CARDINAL ( CARDINAL ) of the LAW read :","\u201c Persons in the categories listed in LAW law shall submit a declaration concerning work for or service in the ORG 's security services or collaboration with these services DATE and DATE ( hereafter called ' the declaration ' ) . \u201d","Section CARDINAL ( CARDINAL ) contained a list of public functions and professions , the holders of which must make the declaration under LAW .","Under LAW ( CARDINAL ) item CARDINAL ( a ) as amended in DATE , candidates to the bar and advocates were also obliged to make such declarations . Their declarations were to be submitted to the Minister of ORG .","The declarations were also transmitted to ORG . Pursuant to section CARDINAL of the Act , ORG was vested with powers to conduct lustration proceedings . Such proceedings could be instituted at the request of ORG ( rzecznik interesu publicznego ) .","The Commissioner would institute proceedings before ORG when he or she had doubts whether the declaration of noncollaboration was truthful .","According to section CARDINAL(d ) , the duties of the Commissioner included in particular :","\u201c CARDINAL . i ) analysing the lustration declaration submitted to the court ;","ii ) collecting the information necessary for a correct assessment of the declaration ;","iii ) lodging an application with the court with a view to initiating lustration proceedings ; ...","In carrying out his or her duties enumerated in points CARDINAL and CARDINAL above , the Commissioner may require to be sent or shown the relevant case files , documents and written explanations , and if necessary may hear witnesses , order expert opinions or conduct searches ; in this respect , and as regards the duties described in section ORG ) , the provisions of LAW concerning the prosecutor shall likewise apply to the Commissioner . \u201d","Pursuant to section CARDINAL ( e ) , the Commissioner had full access to all documents and other sources of information , regardless of the form in which they were recorded , created before CARDINAL DATE by organs specified in that provision , including sources within ORG .","Under section DATE , matters not covered by the LAW and relating to lustration proceedings were governed by the provisions of LAW .","According to section CARDINAL , the person under scrutiny was afforded the same defence rights as an accused in criminal proceedings .","The proceedings before ORG terminated with a decision on whether the declaration made by the person concerned was true . A decision of this court could be appealed to the second - instance ORG . Such an appeal was examined by a different panel of CARDINAL judges of ORG .","Pursuant to section DATE , the decisions of ORG were to be served on the person concerned with their written grounds .","A cassation appeal to ORG lay against the secondinstance judgment .","The final judgment , finding a particular declaration untrue , was immediately made public in the \u201c Official Law Gazette \u201d ( ORG ) .","Pursuant to section CARDINAL , the final judgment of an untrue declaration established the loss of moral qualifications which were , according to the relevant laws , necessary for the exercise of certain public functions , including the profession of advocate . It therefore entailed disbarment .","Article CARDINAL \u00a7 CARDINAL of the LAW provides that , when a danger arises that ORG secrets may be revealed to the public , access to the case files , making notes and copying documents from such files shall only be allowed under special arrangements provided for by the president of the court or by the court .","Article CARDINAL \u00a7 CARDINAL , which concerns the delivery of a judgment , provides :","\u201c If the case has been heard in camera because of the substantial interests of the ORG , instead of reasons , notice will be served to the effect that the reasons have been prepared . \u201d","Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the LAW provides that the court shall order a hearing to be held in camera if its public character could disclose circumstances which should remain secret in the light of important ORG interests .","Section CARDINAL ( CARDINAL ) of ORG DATE ( LOC o ochronie tajemnicy pa\u0144stwowej i s\u0142u\u017cbowej ) , which was in force until DATE , read as follows :","\u201c A ORG secret is information which , if divulged to an unauthorised person , might put at risk the ORG 's defence , security or other interest , and concerns in particular : ...","CARDINAL ) the organisation of the services responsible for the protection of security and public order , their equipment and working methods , and the data enabling the identification of their officers and persons collaborating with the security services ... \u201d","Section CARDINAL of ORG DATE ( LOC o ochronie informacji niejawnych ) , in its relevant part , provided as follows :","\u201c CARDINAL . Persons referred to in section CARDINAL ( CARDINAL ) [ those authorised to sign the document and to assign a confidentiality rating ] , or their legal successors in relation to documents containing information classified as a ORG secret , created before DATE , shall within DATE from the date of enactment of this Act , review these documents with the purpose of adjusting their current security classification to the classifications provided by this LAW . Until then , these documents shall be considered classified under the provisions of paragraph CARDINAL unless otherwise provided by law ... \u201d","Appendix No . CARDINAL to the LAW provided , in so far as relevant :","\u201c ORG that can be classified as ' top secret ' : ...","information concerning documents that make it impossible to establish data identifying officers , soldiers or employees of ORG bodies , services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities . \u201d","Section CARDINAL ( CARDINAL ) of the DATE Act concerned the organisation of the secret registry . It provided in so far as relevant :","\u201c Documents marked \u201c top secret \u201d and \u201c secret \u201d ( \u015bci\u015ble tajne i tajne ) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure . In case of doubts regarding the conditions of protection , the document can be made available only in the secret registry . \u201d","Certain limited aspects of LAW have been examined by ORG as to their compatibility with LAW . In a judgment of DATE , ORG recalled the historical background to LAW and explained its purpose :","\u201c As can be seen from the legislative history , the main aim of the LAW was to ' make it impossible to use a person 's political past ' , the fact of cooperating with the secret services , ' for the purpose of blackmailing ... persons holding key decisionmaking functions in the NORP State ' ...","The concept of lustration as adopted by the legislator , in respect of the subject of scrutiny , decision - making and possible sanction in lustration proceedings , is the truthfulness of the declaration submitted under LAW ] . Thus , as follows directly from the LAW and from ORG judgment of CARDINAL DATE , the law does not associate criminal or quasi - criminal liability with the sole fact of past collaboration with the ORG 's security services ... The legislator 's intention is that persons who are exercising public functions or standing for election to posts involving the exercise of public functions shall submit a declaration regarding cooperation . The purpose of such regulation is to secure the open nature of public life , to eliminate [ the possibility of ] blackmail because of facts from the past which can be considered as compromising , and to submit those facts for public consideration . The collaboration itself does not prevent any citizen from exercising public functions , and lustration proceedings are designed only to scrutinise the truthfulness of those who exercise or wish to exercise public functions . It is therefore not the collaboration , but the submission of a false declaration which has negative consequences for those affected . \u201d","In a judgment of CARDINAL DATE ( K CARDINAL\/CARDINAL ) , the court examined the constitutionality of certain provisions of LAW as amended in DATE . These amendments concerned the provisions regulating the position of the Commissioner of Public Interest and , also , provisions to the effect that certain categories of persons , if found to have made a false lustration declaration , were to be regarded as having lost the moral qualifications necessary for the exercise of certain public functions .","NORP In a judgment of DATE ( K CARDINAL\/CARDINAL ) , the court held that certain amendments to LAW , enacted on DATE , were incompatible with the LAW because ORG ( Seym ) had failed to respect the legislative procedure provided for by the relevant constitutional provisions .","In its judgment of CARDINAL DATE ( K MONEY ) , ORG examined the compatibility with the LAW of certain provisions of LAW which created the obligation to publish a lustration declaration made by candidates to certain public functions insofar as they did not make any distinction between various categories of collaboration with the secret services .","In its judgment of CARDINAL DATE ( K CARDINAL\/CARDINAL ) , the court examined the scope of the notion of secret collaboration as provided for by LAW as amended in DATE .","The court also dealt with other problems concerning LAW in its judgments LAW , P CARDINAL\/CARDINAL , ORG CARDINAL and ORG CARDINAL .","The following are extracts from ORG of ORG DATE ) on measures to dismantle the heritage of former communist totalitarian systems :","\u201c CARDINAL . The ORG welcomes the opening of secret service files for public examination in some former NORP totalitarian countries . It advises all countries concerned to enable the persons affected to examine , upon their request , the files kept on them by the former secret services ...","Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph CARDINAL , but who nevertheless held high positions in the former totalitarian communist regimes and supported them , the ORG notes that some states have found it necessary to introduce administrative measures , such as lustration or ' decommunisation ' laws . The aim of these measures is to exclude persons from exercising governmental power if they can not be trusted to exercise it in compliance with democratic principles , as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now .","The ORG stresses that , in general , these measures can be compatible with a democratic state under the rule of law if several criteria are met . Firstly , guilt , being individual , rather than collective , must be proven in each individual case - this emphasises the need for an individual , and not collective , application of lustration laws . Secondly , the right of defence , the presumption of innocence until proven guilty , and the right to appeal to a court of law must be guaranteed . Revenge may never be a goal of such measures , nor should political or social misuse of the resulting lustration process be allowed . The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy .","The ORG thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law , and focus on threats to fundamental human rights and the democratisation process . Please see the \" Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law \" as a reference text . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61195","languageisocode":"ENG","respondent":"DEU","branch":"GRANDCHAMBER","date":2003,"docname":"CASE OF SOMMERFELD v. GERMANY","importance":1,"conclusion":"No violation of Art. 8;Violation of Art. 14+8 with regard to right of access;Violation of Art. 14+8 with regard to right of appeal;Not necessary to examine Art. 14+6;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicant , born in DATE , is the father of the child PERSON , born out of wedlock on DATE . The applicant acknowledged paternity of M.","The applicant and the child \u2019s mother lived together at the time of the child \u2019s birth . They separated in DATE . The child \u2019s mother prohibited any contact between the applicant and the child . The applicant still met PERSON several times at school until such contact was no longer possible . Subsequently the child \u2019s mother married Mr PERSON , the father of her child A. , born in DATE , PERSON being the common family name .","On DATE the applicant applied to ORG for a decision granting him a right of access to his daughter . Having heard the persons concerned , ORG , in comments dated DATE , advised against a right of access . ORG submitted that PERSON had established a close relationship with Mr. PERSON , which would be adversely affected by contact between PERSON and her natural father . It also stated that PERSON , when heard in the absence of her mother , had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access .","On DATE M. , then DATE , was heard by a judge of ORG . She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court .","At a court hearing on DATE , the applicant and the child \u2019s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of ORG . On DATE ORG informed ORG that no agreement had been achieved and that PERSON had stated that she did not wish to see the applicant .","On DATE the court ordered that a psychological expert opinion be prepared . On DATE , in CARDINAL - page submissions , the psychologist of ORG stated that , as contact between the applicant and PERSON had been disrupted for DATE , no diagnosis of their current relationship appeared possible . The psychologist considered that the views which the applicant and PERSON had expressed on the question of future contact were very different . PERSON was growing up in a family unit and , unlike the applicant , was not suffering from any deficits in that respect , and did not wish to have any personal contact with the applicant . He should give her the necessary time to take up contact of her own motion . The psychologist noted that she had arranged a meeting between the applicant and PERSON which , however , had been cancelled by PERSON \u2019s stepfather .","On DATE the ORG judge heard the applicant and PERSON in the presence of the psychological expert . PERSON having repeatedly stated that she did not wish to have contact with the applicant , the latter affirmed that he would withdraw his request for a right of access .","The applicant withdrew his request on DATE .","On DATE the applicant again applied to ORG for a right of access to his daughter .","On DATE the ORG judge heard the DATE PERSON , who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her . She also said that she had a father whom she loved , though it was not her natural father . The court held a hearing with the applicant and the child \u2019s mother on CARDINAL DATE .","On DATE ORG dismissed the applicant \u2019s application .","ORG noted the comments filed by ORG on DATE as well as the GPE and the child \u2019s statements in court . ORG also had regard to the comments filed by ORG in DATE and to the statement submitted by the psychologist in DATE , both in the context of the first set of access proceedings .","ORG found that the applicant could not be granted access to the child . Referring to section DATE of LAW , the ORG observed that the mother , having sole custody , determined the father \u2019s access and the guardianship court could only decide to grant the father access if this was in the child \u2019s best interest . In this respect , the court found as follows :","\u201c On the basis of its extensive investigations , and especially its conversations with [ M. ] in DATE and DATE , this court has decided that , in the present case , access by the father to his child is by no means in her best interest .","At the age of DATE , [ M. ] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father . In the court \u2019s opinion , forcing her to see him against her will can not be justified , since this would seriously disturb her emotional and psychological balance . Such a decision would on no account be in her best interest .","This court can not accept the [ applicant \u2019s ] sweeping statement that access is always in the child \u2019s interest . The extent to which this is true invariably depends on circumstances . In this case , the only justifiable decision is that set out in the operative part of the judgment .","... \u201d","On DATE ORG dismissed the applicant \u2019s appeal on the following grounds :","\u201c The appeal is admissible under LAW , but is unfounded . ORG was right to refuse the applicant all access to [ M. ] , since this is not in the child \u2019s best interest ( sections DATE and DATE of LAW ) . This court also takes the view that ORG had no cause to permit exceptions for any specific area of life . It considers that the arguments advanced in the contested decision are correct . It regards it as important that the girl [ M. ] \u2013 who is , after all , DATE has stated clearly and for a long time that she wants no contact with her father . The applicant should accept this clearly expressed wish in his adolescent daughter \u2019s interest and also his own . Only if he ceased to exert pressure on her might it one day be possible for them to resume contact . The court would also point out that access to [ M. ] on the strength of a court order could hardly be enforced against the child \u2019s will . \u201d","On DATE the applicant filed a constitutional complaint with ORG .","On DATE a panel of CARDINAL judges of ORG refused to entertain the applicant \u2019s complaint .","The statutory provisions on custody and access are to be found in the German Civil Code . They have been amended on several occasions and many were repealed by the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) of DATE ( ORG , p. CARDINAL ) , which came into force on DATE .","Section CARDINAL \u00a7 CARDINAL reads as follows :","\u201c The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody ( PERSON ) and the care of property ( Verm\u00f6genssorge ) of the child . \u201d","Pursuant to section DATE \u00a7 CARDINAL , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to section DATE , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child \u2019s relationship with the other parent or seriously interfere with the child \u2019s upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child \u2019s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child \u2019s well - being would otherwise be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG authority or an association .","Before the entry into force of the amended Law on Family Matters , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows :","Section CARDINAL","\u201c CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child \u2019s relationship with others or seriously interfere with the child \u2019s upbringing .","The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under section CARDINAL \u00a7 CARDINAL , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child \u2019s welfare .","A parent not having custody who has a legitimate interest in obtaining information about the child \u2019s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child \u2019s interests . The guardianship court shall rule on any dispute over the right to information .","Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . \u201d","Section CARDINAL \u00a7 CARDINAL concerned the right to determine third ORG rights of access to the child .","The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows :","Section CARDINAL","\u201c Custody over a minor child born out of wedlock is exercised by the child \u2019s mother ... \u201d","Section CARDINAL","\u201c CARDINAL . The person having custody of the child shall determine the father \u2019s right of access to the child . Section CARDINAL \u00a7 CARDINAL , second sentence , applies by analogy .","If it is in the child \u2019s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Section CARDINAL \u00a7 CARDINAL applies by analogy . The guardianship court can change its decision at any time .","The right to request information about the child \u2019s personal circumstances is set out in section CARDINAL \u00a7 CARDINAL .","Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . \u201d","Like proceedings in other family matters , proceedings under former section DATE LAW were governed by LAW ( PERSON \u00fcber die ORG der freiwilligen PERSON ) .","According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .","In proceedings regarding access , the competent youth office has to be heard prior to the decision ( section CARDINAL \u00a7 CARDINAL ( k ) ) .","As regards the hearing of parents in custody proceedings , section QUANTITY stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child \u2019s assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to paragraph CARDINAL of section CARDINALa , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .","Section CARDINAL provides for the right to lodge a further appeal challenging the first appeal decision . Section CARDINALa of the LAW as in force at the material time excluded this right in proceedings concerning a natural father \u2019s access to his child born out of wedlock . That provision has been repealed by ORG .","The human rights of children and the standards to which all governments must aspire in realising these rights for all children , are set out in the Convention on the Rights of the Child . The ORG entered into force on DATE and has been ratified by CARDINAL countries , including GPE .","The Convention spells out the basic human rights that children DATE without discrimination \u2013 have : the right to survival ; to develop to the fullest ; to protection from harmful influences , abuse and exploitation ; and to participate fully in family , cultural and social life . It further protects children \u2019s rights by setting standards in health care , education and legal , civil and social services .","DATE States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child ( Article CARDINAL ) . Moreover , GPE Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child ; and that a child who is separated from CARDINAL or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis , except if it is contrary to the child \u2019s best interests ( Article CARDINAL ) ."],"violated_articles":["14","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60451","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2002,"docname":"CASE OF SEMSI ONEN v. TURKEY","importance":3,"conclusion":"Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);No violation of Art. 2 in respect of killing of applicant's relatives;Violation of Art. 2 on account of lack of effective investigation;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 8;No violation of Art. 14","judges":"","text":["The applicant , PERSON , is a NORP citizen , born in DATE . At the relevant time , she lived in the village PERSON near Maz\u0131da\u011f\u0131 ( Mardin ) in south - east GPE . The application was brought by the applicant on behalf of her deceased parents and brother , on her own behalf and on behalf of her CARDINAL suriving siblings , namely PERSON , GPE , GPE , PERSON , PERSON , PERSON , Sevgi , Iskender , PERSON and GPE . It concerns the killing of their parents and brother PERSON , allegedly by armed members of the NORP village guards , and the investigation thereof .","Since DATE , a violent conflict has been conducted in the south - eastern region of GPE between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( ORG ) . According to the Government , CARDINAL of the main terrorist activities of the ORG was the killing of people who have acted contrary to the cause of this organisation or who have misused property of the ORG . At the time of the events in issue , CARDINAL of the CARDINAL provinces of south - east GPE had been under emergency rule since DATE .","The facts of the case , in particular the circumstances of the killings and the efforts of the authorities to investigate the killings , are disputed .","As the village of ORG , where the applicant and her family lived at the time of the events in issue , had refused the village guard system , tension had arisen between PERSON and its neighbouring village GPE . This refusal had also resulted in pressure being applied to the villagers by the gendarmes .","On or about CARDINAL DATE , CARDINAL GPE guards were killed in a clash with the ORG . On DATE , shortly after the clash , gendarmes and village guards attacked the village of ORG . This attack lasted TIME . The following day , the FAC of PERSON complained to the Governor that his village was being subjected to pressure and violence from the gendarmes and village guards . No investigation of the attack took place .","DATE before DATE the house of the GPE and the applicant 's family house were both strafed by several rounds of bullets fired by GPE guards . The PERSON again complained to the Governor about the pressure exerted on his village by the NORP village guards and requested that steps be taken to put an end to it .","In TIME of DATE the applicant 's older brother , PERSON , and her parents , PERSON and PERSON , were killed and the applicant suffered a wound to her foot as a result of a planned action by members of the NORP village guards to kill PERSON . Before he was shot and killed , the applicant 's father was able to pull the scarf from the head of CARDINAL of the intruders and shouted that he recognised the gunmen as PERSON , head of the NORP village guards , and his nephew PERSON , a former GPE village guard . The applicant 's mother , who was seriously injured by a bullet , died on her way to hospital .","NORP The Commander of the local ORG gendarme station , who had possibly been informed beforehand of the plan by the ORG village guards to kill PERSON , seriously delayed the applicant 's mother 's access to medical treatment by refusing to provide a car to replace the defective minibus which was to transport her to a hospital and by unduly delaying the departure of this minibus for Maz\u0131da\u011f\u0131 .","The subsequent investigation of these killings was not only ineffective and inadequate in professional terms , but was in fact designed to cover up the involvement of the NORP village guards and to prevent the conviction of PERSON and PERSON . From the very beginning of the investigation , and throughout the entire subsequent proceedings , the authorities blamed the ORG for the killings and failed to keep the applicant informed of any steps taken in the investigation .","On DATE ORG forces attacked GPE guards on the slopes of the PERSON hill close to the village of ORG . This clash lasted TIME . There were no casualties . To date , the perpetrators of this attack have not been found .","On DATE ORG forces ambushed CARDINAL NORP village guards on a road near the village of ORG . In the course of this clash , which lasted TIME , CARDINAL village guards were killed and CARDINAL others wounded . An investigation into the clash was carried out . The ORG gendarme station commander , PERSON , took statements from the CARDINAL surviving village guards during the course of the investigation . To date , the perpetrators of this attack have not been identified .","On DATE at TIME an armed ORG attack using rocket missiles and heavy weapons was carried out on a PTT radio link station in LOC , at a distance of QUANTITY from Maz\u0131da\u011f\u0131 . The village guards present returned fire . The clash lasted TIME . There were no casualties . Shortly after the clash , gendarmes from the LOC gendarme station arrived at the scene . DATE , a land mine was found on the road leading to the PTT station . The initial investigation of this attack was carried out by LOC gendarme station under the responsibility of the public prosecutor at Maz\u0131da\u011f\u0131 .","Also in TIME of DATE the killing of CARDINAL PERSON villagers was reported to the public prosecutor in Maz\u0131da\u011f\u0131 . For reasons of security , the public prosecutor only arrived at the scene of the incident at TIME . He conducted an investigation , including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor .","All necessary steps were taken to investigate the killing of the applicant 's parents and brother , including the collection of evidence . After having completed his preliminary investigation , the public prosecutor of Maz\u0131da\u011f\u0131 issued on DATE a decision of lack of jurisdiction and the investigation was referred to the public prosecutor 's office at ORG . This referral resulted in the institution of proceedings against PERSON and PERSON before ORG .","On DATE , in the context of these proceedings and on the instructions of ORG , further statements were taken before a judge of ORG from PERSON , PERSON and ORG . No statements were taken from the applicant and her sister PERSON , since they no longer resided in PERSON and their new address could not be established .","On DATE ORG acquitted PERSON and PERSON for lack of evidence . After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant 's parents and brother have not been found .","The Government submitted that it appeared from information obtained that the ORG had provided the applicant 's brother PERSON with a taxi , which he had put to his own private use . He had thus made his family a target of the ORG , a terrorist organisation which was in all likelihood responsible for the killing of the applicant 's parents and brother .","On DATE an incident report was drawn up by the gendarmes of the LOC gendarme station stating that at TIME that day , a group of terrorists belonging to the outlawed ORG organisation entered the home of PERSON and opened fire . PERSON and PERSON were shot and killed . PERSON and PERSON were injured and PERSON died on the way to hospital . The report also referred to CARDINAL empty PERSON cartridges without further specifications .","On the same date ORG PERSON of FAC drew a sketch map of the interior of the PERSON family 's CARDINAL - room house . It indicated in CARDINAL room the location of the bodies of PERSON and PERSON , CARDINAL blood stains between the body of PERSON and the front door and CARDINAL empty cartridges . In the other room the location of the body of PERSON and CARDINAL empty cartridges was indicated . No blood stains were recorded in the room where the body of PERSON was indicated . The sketch map only recorded what had been found inside the house . It did not contain any information about the immediate surroundings of the house .","According to a post mortem examination report dated DATE , due to security precautions , the team of experts only arrived on DATE at TIME in PERSON , acting on a report that CARDINAL persons had been killed there on DATE at TIME . This team consisted of the public prosecutor of ORG , the medical doctor PERSON of ORG , a clerk , an autopsy assistant and a driver . The report further indicated that Mome had died on the way to hospital and that her body had been brought back to the village . The bodies of PERSON , PERSON and PERSON had been identified by a relative , PERSON . The examination report contained information on bullet - entries and exits and concluded that the respective causes of death were haemorrhaging of the lungs , loss of blood and cessation of vital functions . Given the obvious nature of the cause of death , it was decided that there was no need to conduct an autopsy .","On CARDINAL and DATE statements were taken from the applicant and her sister PERSON by the ORG gendarme station commander , PERSON , and by gendarme officer PERSON of the NORP district gendarme station .","On DATE PERSON took statements from the NORP village guards PERSON , son of PERSON and born in DATE , and ORG , son of PERSON and born in DATE , in relation to the events of DATE . PERSON stated that he was the Head of the NORP village guards and that on DATE he had been on patrol duty on the K\u0131rm\u0131z\u0131tepe hill to the west of ORG . He denied any involvement in the killing of the applicant 's parents and brother and stated that he felt slandered . His account was supported by ORG who confirmed that he had been on patrol on the K\u0131rm\u0131z\u0131tepe hill together with PERSON until TIME of DATE . ORG further declared that neither the village of GPE nor PERSON had any involvement in the killings .","On DATE Mr PERSON took a statement from PERSON , son of ORG and born in DATE , who stated that on DATE he had not been in ORG . On DATE he had been loading goods onto his lorry in the province of GPE and had driven his lorry to GPE . He further declared that due to his work , he never stayed very long in GPE .","DATE and CARDINAL DATE a ballistics examination was carried out . According to a ballistics report of DATE of the forensic laboratory in GPE , the CARDINAL empty CARDINAL PERSON calibre PERSON cartridges found at the scene of the killing had been fired from CARDINAL different weapons with the same calibre , i.e. QUANTITY from CARDINAL weapon , CARDINAL from another and CARDINAL from a third weapon . In a report of CARDINAL DATE , transmitted to the Maz\u0131da\u011f\u0131 prosecutor , the forensic laboratory in ORG concluded that none of the CARDINAL cartridges found at the scene of the killings matched the CARDINAL empty cartridges reportedly taken from the PERSON rifle of PERSON and that , therefore , the CARDINAL cartridges had not been fired from PERSON weapon .","On DATE the NORP public prosecutor PERSON , decided that he lacked jurisdiction to deal with the case . The decision listed PERSON and PERSON as being suspected of the offence of \u201c politically motivated murder \u201d of the applicant 's parents and brother . It noted that , following its investigation , LOC command had concluded that unidentified members of the ORG terrorist organisation had committed the killings , but that , according to the respective accounts of the applicant and her sister PERSON , their father had recognised the perpetrators as PERSON and PERSON . Concluding that the alleged offence fell within the scope of PERSON No . CARDINAL , it was decided that the Maz\u0131da\u011f\u0131 prosecutor 's office lacked jurisdiction and that the case - file should be transmitted to the prosecutor 's office at ORG .","On DATE , following referral of the prosecution 's case file to the prosecutor at ORG , the prosecutor at this court , PERSON , took certain additional measures with respect to the ballistics examination . He enquired as to why CARDINAL empty cartridge shells had been sent for examination , whereas CARDINAL such cartridges taken from PERSON weapons owned by CARDINAL village guards had been required for a comparison . He further instructed the gendarmerie to provide him with a list of the PERSON village guards as well as the PERSON delivery receipts of these village guards and to send the PERSON delivered to PERSON and all other PERSON belonging to the village guards to the forensic laboratory in ORG for a ballistics examination . In the event of there being insufficient replacement rifles , he instructed that these rifles be discharged and the empty cartridges numbered in order to identify which cartridge was fired from which weapon and to send these cartridges to the forensic laboratory for a ballistics examination .","On DATE the LOC gendarme command sent to the prosecutor 's office at ORG CARDINAL weapon and ammunition delivery receipts of the GPE guards and CARDINAL numbered empty cartridges . No information was provided as to the circumstances of the firing of the weapons . On DATE ORG in ORG submitted to ORG a ballistics examination report which concluded that none of the CARDINAL empty PERSON cartridges matched the CARDINAL cartridges found at the place where the applicant 's parents and brother had been shot .","On DATE prosecutor PERSON charged PERSON and PERSON with politically motivated murder of the applicant 's parents and brother PERSON , under LAW , CARDINAL and CARDINAL of GPE and LAW DATE .","On DATE ORG instructed ORG , inter alia , to take statements from PERSON and PERSON , ORG and PERSON , and to take evidence from ORG and PERSON . It adjourned its further examination until DATE . On that date it noted that the results of its instructions had not yet arrived and that it appeared from the case - file that weapons seized from the suspects had been sent to ORG for a ballistics examination .","Pending the implementation of its above - mentioned orders for the hearing of witnesses and a request for the preparation of a further forensic laboratory report , ORG adjourned the proceedings several times , on the last occasion until DATE .","In the meantime , according to a statement dated CARDINAL DATE and signed by the gendarmes PERSON and PERSON and by the FAC of PERSON , the applicant and her sister PERSON were living around Cezaevi in the Diyarbak\u0131r province , but their address could not be established . In another statement dated CARDINAL DATE and signed by the same gendarmes and ORG , ORG , it was noted that the current whereabouts of PERSON were unknown .","On DATE , in the presence of the NORP public prosecutor PERSON , the judge at ORG , PERSON , took statements from PERSON , PERSON and PERSON . It was noted that PERSON had not appeared . PERSON stated that PERSON had left ORG some time ago , that he was unaware of PERSON 's whereabouts and , in any event , PERSON had not been in the village for a long time . As regards the applicant and her sister PERSON , it was noted that they had not appeared and that the response to their summons indicated that they were not in the village and were residing in the Cezaevi neighbourhood in GPE . On DATE ORG noted that no statements had been taken from the applicant and her sister PERSON as their address could not be established .","On DATE ORG tried the case in the absence of the defendants as well as of the applicant and her sister . The prosecution submitted that the applicant and her sister had only heard their father state the names of the accused but that there was no other evidence supporting their account . The prosecution argued that , in these circumstances , the accused should be given the benefit of the doubt and acquitted . By judgment of DATE ORG unanimously acquitted PERSON and PERSON of the charges against them .","Since the facts of the case are disputed , particularly concerning the circumstances of the killings and the adequacy of the follow - up investigation , the ORG conducted an investigation with the assistance of the parties . The ORG obtained documentary evidence , including written statements . The oral evidence of the applicant and CARDINAL witnesses was heard by CARDINAL Delegates at a hearing in GPE on DATE and CARDINAL and DATE .","As regards written evidence , the ORG had particular regard to the statements of both the applicant and his sister PERSON of CARDINAL and DATE ( taken by the ORG gendarme station commander PERSON and by gendarme officer PERSON of the NORP district gendarme station ) ; a statement by the applicant of DATE ( taken by Mr PERSON , the public prosecutor of ORG ) ; an undated statement taken by Mr Sedat Aslanta\u015f of LOC of ORG ( submitted to the Commission on DATE ) ; a statement by the applicant 's sister of DATE ( taken by ORG ) ; statements by village guards PERSON and ORG taken on CARDINAL and DATE ( at ORG gendarme station by PERSON ) ; a statement by PERSON ( taken on DATE by gendarme PERSON at the LOC gendarme station ) ; a statement of DATE of PERSON ( taken by ORG ) ; statements taken on DATE from PERSON , PERSON and PERSON by judge PERSON of ORG upon request of ORG .","The ORG also had regard to an incident report and a sketch map , both dated DATE ; an ambulance record of DATE ; a post mortem examination report dated DATE ; correspondence of the NORP public prosecutor ; forensic ballistics inquiries and examinations ; ORG decision of lack of jurisdiction dated DATE and a number of TIME of the proceedings before ORG ; as well as other documents .","The latter included gendarme reports and statements related to the investigation of the attack on GPE guards on DATE , according to which a group of CARDINAL LOC guards travelling by tractor on the road from GPE to the ORG gendarme station were attacked by ORG forces on DATE at TIME . At the time of the attack , the village guards found themselves between the villages PERSON and PERSON . CARDINAL village guards were injured , amongst whom PERSON , son of PERSON and born in DATE . CARDINAL others were killed , amongst whom PERSON , son of ORG and born in DATE , and PERSON , son of PERSON and born in DATE .","Account was also taken of letters of various dates DATE and DATE , from the Commander of the LOC gendarme station to the office of the public prosecutor in Maz\u0131da\u011f\u0131 in which he informed the public prosecutor that the identities of the ORG members who had killed the applicant 's parents and brother had not yet been established . A number of these letters , including one sent on DATE , stated that the investigation of the matter was still ongoing .","The oral evidence included statements by the applicant herself , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , ORG , ORG , PERSON and PERSON .","The verbatim record of the hearing held on DATE contained the following passages of relevance to the ORG 's preliminary objection as to the authenticity of the application ( see paragraph CARDINAL below ) :","\u201c Mr PERSON : Did you make CARDINAL statements at the station , and did you sign them ?","Miss PERSON : Yes . I went there a few times . They asked me questions . I answered them . They wrote them down . I put my fingerprint as I do n't know how to write . But I do n't know what they wrote . I answered the questions just as I 'm doing here DATE . My brother was with me . I put my fingerprint to the statements .","Mr. PERSON : Since you can not read , I will only show you your fingerprint , and you will say whether it 's yours or not .","A document is shown to the applicant .","Miss PERSON : Yes , it 's mine . That 's how I put my fingerprint . \u201d","In relation to the oral evidence , the ORG was aware of the difficulties in assessing evidence obtained orally through interpreters : it therefore paid careful attention to the meaning and significance to be attributed to the statements made by the witnesses appearing before its Delegates . The ORG was aware that the cultural context of the applicant and witnesses rendered it inevitable that there would be a certain degree of imprecision with regard to dates and other details . However it did not consider that this by itself detracted from the credibility of the testimony .","In a case where there were contradictory and conflicting factual accounts of events , the ORG was acutely aware of its own limitations as a first instance tribunal of fact . The problems of language were adverted to above ; there was also an inevitable lack of detailed and direct familiarity with the conditions in the region . In addition , the Commission had no powers to take specific measures to compel witnesses to give oral or written evidence . In the present case , despite the ORG 's specific request , the ORG failed to submit certain relevant documents . The ORG was therefore faced with the difficult task of determining events on the basis of incomplete evidence .","The ORG 's findings can be summarised as follows .","The villages of ORG and PERSON were situated in an area which was subjected to significant ORG activity in DATE . It was undisputed that , prior to the events at issue , village guards from ORG had been attacked on CARDINAL occasions by ORG forces and that , on DATE , ORG forces attacked a nearby PTT radio link installation .","The inhabitants of ORG and CARDINAL other villages belonged to the \u201c LOC \u201d clan . It appeared that , at the relevant time , all villages belonging to this clan , with the exception of the village of PERSON and CARDINAL other village , had village guards and that pressure was exerted to join the village guard system . A number of witnesses stated that the refusal of ORG to join the village guard system had resulted in tension between PERSON and ORG . Other witnesses denied such tension . The public prosecutor at ORG confirmed that he had heard rumours that the inhabitants of ORG opposed ORG and , therefore , the village guards were their enemies . The NORP village guards were not authorised to act on their own initiative . They received their orders from and had to report to the Commander of the nearby ORG gendarme station .","Although it could not make any definite findings on this point , the Commission did not consider it to be implausible that PERSON ' refusal to join the village guard system during a period of significant ORG activity in the area , had resulted in tension between the village guards of ORG and the inhabitants of ORG .","The Commission was satisfied from the evidence given by the applicant and her sister , that in TIME of DATE after having introduced themselves as soldiers knowing that the PERSON was absent from PERSON and wishing to conduct a house search , CARDINAL armed and masked men entered their family home . CARDINAL of the men immediately shot and killed their brother PERSON . In the course of their struggle with the intruders , the applicant 's father was shot and killed by one of the intruders and the applicant 's mother was seriously injured by a shot fired by the other intruder . There was no reason to doubt that both the applicant and her sister heard their father call out the names of the CARDINAL perpetrators whom he had recognised as PERSON and PERSON from GPE .","The killings in question were the result of a premeditated plan to kill the applicant 's brother . As to the possible motive for the killing it could not be excluded that there were tensions between the inhabitants of ORG and the NORP village guards at the relevant time which had already resulted in armed attacks on houses in ORG . Nor could it be excluded that PERSON may have been a particular target because of his suspected involvement in the ORG killing of village guards from ORG . On the other hand , the ORG 's contention that the ORG had a motive for killing PERSON because they had provided him with a vehicle which he had used for his own benefit rather than for services required by the ORG had not only remained unsubstantiated but was , moreover , contradicted by substantial evidence submitted by the applicant .","As to the circumstances of the killing itself , the ORG found it established that the killers were aware that the Muhtar of PERSON was absent from the village and that the applicant and her sister heard their father call out the names of the perpetrators , identifying them as PERSON and PERSON . Moreover , the evidence of PERSON and PERSON that the NORP village guards , including PERSON , had been on guard duty throughout TIME DATE was at least open to question . In addition , the suspicion of the involvement of GPE guards was reinforced by the identification of PERSON and PERSON by the applicant and her sister at the NORP gendarme station . Nevertheless , while the evidence was sufficient to give rise to suspicion as to the identity of the killers , it had not been established to the required standard of proof beyond reasonable doubt that the applicant 's brother , father and mother were killed by agents of the ORG .","In this connection , the ORG noted that the applicant had given the Delegates a description of the CARDINAL men : the one who shot her brother PERSON and her mother had been described as a person with long fair hair , hazel eyes and a fair complexion , whilst the man who shot their father was described as having a moustache and black eyes . Her sister , PERSON , confirmed that the man who shot PERSON had hazel eyes but stated that she had not seen the second intruder . The applicant had further given evidence that , on DATE , when she subsequently attended the NORP gendarme station , she saw PERSON and PERSON and recognised them as the same CARDINAL men . This was confirmed by PERSON in that , on the same occasion , she had recognised PERSON as CARDINAL of the killers from his height , build , hazel eyes , nose and complexion .","The Commission considered that this evidence should be treated with caution . In the circumstances of the sudden and traumatic events of that TIME , it was at least doubtful whether either the applicant or her sister would have had an opportunity to form a clear and accurate impression of the features of either man . In particular , PERSON appeared only fleetingly to have seen her brother 's killer , whose face had been masked with a scarf . The Commission noted that the description given by them of PERSON and PERSON was contradicted by ORG , who knew both men and who described PERSON as being lean with a dark complexion and black hair and PERSON as being a more bulky man of the same height with a light complexion and chestnut brown hair .","As to the evidence of the subsequent identification of these CARDINAL men , the Commission found no reason to doubt that the applicant and her sister did see PERSON and PERSON at the NORP gendarme station on DATE . What was , however , more doubtful was whether the identification of the CARDINAL men was entirely spontaneous or whether the applicant and her sister were made aware that the men were PERSON and PERSON , whose names had been called out by their father .","Finally , it had not been established that PERSON , the Commander of the ORG gendarme station , had considerably delayed the provision of medical treatment to the applicant 's injured mother or that the gendarme forces failed to offer her available assistance . In this connection , the ORG had regard to its findings as regards the time of the armed attack and the moment at which the applicant 's mother received medical care in Maz\u0131da\u011f\u0131 .","From the evidence of PERSON it appeared that , after the minibus transporting the applicant 's mother had left for Maz\u0131da\u011f\u0131 , he reported the incident in PERSON to his superiors at the GPE gendarme station in Maz\u0131da\u011f\u0131 and stated that he suspected that the ORG was responsible for the killings . He was told that , for reasons of security , the public prosecutor would only come to PERSON TIME . He then ordered a first gendarme team to secure the area around ORG . A second team , led by himself , joined the first team DATE . Thereupon , he and CARDINAL gendarme team went to ORG . They arrived TIME and found the bodies of the CARDINAL victims inside the applicant 's house .","Although the local gendarmes only arrived in PERSON TIME after the killings occurred , the ORG accepted that this delay had been caused by the fact that on the same evening an armed attack on a nearby radio link installation had taken place . However , once in ORG , the gendarmes only secured the scene of the crime and , in the absence of any instructions , passively awaited the arrival of the competent investigation authorities , in the instant case the public prosecutor at Maz\u0131da\u011f\u0131 .","According to PERSON , the villagers present were unwilling to provide the first team of gendarmes with any information about the killings . After having secured the scene of the killings , he and the other gendarmes merely awaited the arrival of the prosecutor since they had not been ordered to take any investigative steps .","In TIME of DATE an investigation team consisting of the public prosecutor of CARDINAL , PERSON , and , amongst others , Dr. PERSON left CARDINAL for ORG .","After the investigation team had arrived in PERSON and before attending the post mortem examination of the victims ' bodies , the public prosecutor briefly inspected the scene of the killings and ordered PERSON to draw a sketch map of the scene of the killings and to collect the empty cartridges lying there . Without having been numbered and without having recorded the exact location of each cartridge , the CARDINAL empty cartridges found were put together in a bag and handed to the public prosecutor . No photographs of the scene of the killings were taken by or on behalf of the investigation team .","The information recorded on the sketch map of the scene of the killings appeared to be incomplete . In contrast to a remark in the post mortem body examination report and the testimony of Dr. PERSON , the sketch map did not indicate a large blood stain on the spot where the body of PERSON had been found . Furthermore , although both PERSON , who drew the sketch map , and ORG were aware that the body of the applicant 's mother had been moved , this fact had not been recorded on the sketch map . Although the ORG accepted that , at the time this sketch map was drawn , the members of the investigation team may have been unaware of the fact that the body of the applicant 's father had also been moved from the outside of the house , the subsequent investigation could not have been assisted by the fact that the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings .","The Commission noted that , according to the post mortem examination report , the applicant 's brother , lying in bed , was hit by numerous bullets in his face , by CARDINAL bullet in his chest and by another bullet in his knee . The ORG found this recorded observation difficult to reconcile with the fact that , according to the sketch map , CARDINAL empty cartridges were found in the room where PERSON was shot and with the evidence that not a single bullet had been found in that room . Furthermore , although there was strong evidence suggesting that the applicant 's father had been shot and killed outside the house , the sketch map only contained information on what had been found inside the house . Although this was denied by PERSON , the Commission could not exclude that more than the CARDINAL recorded empty cartridges were in fact found and collected , including empty cartridges found outside the house .","After having conducted the examination of the bodies and released the victims ' remains for burial , the investigation team left ORG . Although the public prosecutor was aware that both the applicant and her sister were present in PERSON during the visit of the investigation team , neither the public prosecutor nor any other official took any statement 's from them or any of the other inhabitants of PERSON on DATE .","As early as CARDINAL DATE the public prosecutor suspected that the ORG was responsible for the killings and , in a telegram sent DATE , informed the office of the public prosecutor at ORG in ORG accordingly . Although in his evidence to ORG , ORG stressed that this had only been a provisional opinion , his respective requests dated DATE to ORG in DATE to issue death certificates in respect of the applicant 's parents and brother simply state that they \u201c were murdered by fire - armed members of the outlawed ORG terrorist organisation \u201d and , consequently , their deaths were officially recorded as having been caused by the ORG terrorist organisation .","It was only on DATE that the applicant and her sister PERSON gave a statement about the events of DATE to the commander of the ORG gendarme station PERSON . The applicant stated that she had heard her father call out the names of the intruders and she further gave a description of the intruders ' physical appearance . PERSON stated that she had heard her father call out CARDINAL name and did not give any description of the intruders ' physical features . According to PERSON , this was the first time that he heard the allegation that PERSON and PERSON had committed the killings .","In his testimony to the Delegates , PERSON had a firm recollection that he had also taken statements from ORG , PERSON and PERSON . In reply to the request of ORG to submit these statements , the Government stated by letter of CARDINAL DATE that PERSON had not participated in the interrogation of these QUANTITY persons . The ORG further noted that its case - file did not contain any statement given by any of these QUANTITY persons at the ORG gendarme station .","The Commission further found it established that ORG , from the outset , had a rather firm conviction that ORG forces had committed the killings . Although he stressed that this had only been a provisional opinion inspired by views expressed by the gendarmes and his own experience , the ORG found no support for the asserted provisional nature of this suspicion . In fact , it appeared from the contents of his written communications of DATE that he had firm ideas about the identity of the perpetrators . This element , taken together with his failure to try to talk to the applicant and her sister on DATE , resulted in a loss of time in the initial phase of the investigation .","As regards the encounter on DATE between the applicant and her sister and PERSON and PERSON in the LOC gendarme station , the ORG found that it could not be excluded that this encounter was in fact the result of a coincidence since ORG had not ordered a confrontation . It did not appear from the evidence that the applicant and her sister had been invited by the investigation authorities to identify the perpetrators either from a collection of photographs or at an identity parade . The ORG found that no photographs of PERSON and PERSON had ever been shown to the applicant and her sister and that at no point in time had a formal confrontation been ordered .","The ORG further noted from the evidence submitted that , apart from the statement taken from PERSON at the ORG gendarme station on DATE , hardly any attempts were made or seriously pursued to obtain any further evidence from him . Nor did it seem that any attempt had been made to verify his alibi by , for instance , checking his whereabouts on CARDINAL and DATE by seeking confirmation from those persons present when he was allegedly loading goods in GPE or from those to whom he had delivered these goods . It did not appear from the statement he gave at the ORG gendarme station that he was in fact asked to give the names of persons who had seen him on DATE .","As regards the alibi advanced by PERSON , the ORG noted that his presence on K\u0131rm\u0131z\u0131tepe hill at the time of the killings was in fact only supported by the statements of ORG and PERSON , whereas the latter had stated to ORG that he had not in fact been in the presence of PERSON at the time of the killings , but had only seen him shortly afterwards . Given the evidence that there were , in total , CARDINAL village guards in ORG who were organised in teams of CARDINAL persons , the Commission found it remarkable that , apart from ORG , no evidence was taken from the other village guards who were on duty in the same team as PERSON at the relevant time in order to verify the respective positions of each team member on PERSON hill TIME .","After having received the case - file , PERSON , the public prosecutor at ORG noted that the investigation had been incomplete . In order to complete the investigation , he issued a number of instructions to the LOC gendarme station by letter of CARDINAL DATE including that comparison cartridges be taken from the weapons held by the village guards from ORG . On DATE the Commander of the LOC gendarme station transmitted CARDINAL weapon delivery receipts and CARDINAL empty cartridges taken from the GPE guards to the office of the public prosecutor at ORG . This letter contained no information as to when and in which manner these cartridges were obtained .","Although PERSON considered that there was no concrete evidence in support of the accusations made against PERSON and PERSON and was convinced that the ORG was responsible for the killings , he nevertheless brought proceedings against PERSON and PERSON on charges of politically motivated murder and indicted them on DATE before ORG , which had jurisdiction to determine murder charges linked to terrorism . He did not find it necessary to take any further statements or to order the arrest or pre - trial detention of the accused . In his opinion , it was excluded that the security forces would cover up a crime committed by village guards .","In the subsequent proceedings before it , ORG in ORG requested , inter alia , that statements be taken from PERSON and PERSON , from the applicant and her sister PERSON , and from ORG and PERSON . They were all summoned to appear on DATE before a judge of ORG in order to give statements , but only PERSON , ORG and PERSON in fact did so . As the whereabouts of PERSON , the applicant and her sister were not established , their summonses were returned to ORG and , consequently , no further statements were taken from them .","The ORG noted that , although the gendarmes and ORG were informed that the applicant and her sister were residing in the Cezaevi neighbourhood in ORG , it did not appear that any attempts were made or ordered to locate them . Nor did it seem that any further attempts were made or ordered to find PERSON . The Commission noted that the FAC of Karata\u015f , ORG , testified that he had been aware of the exact address of the applicant and her sister in ORG , but that he had never been asked to provide the local gendarmes with this address . He explained his signature on a document dated DATE by stating that it had been normal practice in the area for gendarmes to require PERSON to sign blank documents for future use . No further clarification on this point could be obtained from PERSON , as he had left the ORG gendarme station in DATE . In these circumstances , it was impossible for the ORG to make any findings in this respect . What was clear , however , was that ORG was informed that the applicant and her sister were residing at that time in LOC ORG . In this connection , the ORG had also regard to the evidence of the applicant 's brother that , since their departure from ORG and to date , the PERSON family had always lived at the same address in ORG .","The Commission accepted that the supplementary investigation measures ordered by the public prosecutor at ORG , PERSON , in order to mend certain deficiencies in the preliminary investigation , were appropriate , although it was open to doubt whether , given the passage of time since the killings , these measures were as effective as they might have been in the initial phase of the proceedings . Moreover , he testified that he was convinced at the outset that the ORG was responsible for the killings , which might explain why he decided to indict PERSON and PERSON before ORG , rather than referring the case to a court competent to try common crimes . This was supported by the fact that , apart from PERSON , none of the other vital witnesses gave evidence to ORG .","The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .","Under LAW ( TPC ) all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutor 's offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .","By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .","A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .","If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .","An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .","By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .","If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a \u201c military offence \u201d under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .","The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .","Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the LAW provides :","\u201c All acts or decisions of the authorities are subject to judicial review ...","The authorities shall be liable to make reparation for all damage caused by their acts or measures . \u201d","That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .","DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :","\u201c No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . \u201d","DATE . Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .","However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an \u201c administrative act \u201d or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) ."],"violated_articles":["13","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","2","3","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112141","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2012,"docname":"A.A.S. v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["NORP The applicant , PERSON , is a NORP national , who was born in DATE . The President of the Section decided of his own motion to grant the applicant anonymity ( Rule CARDINAL \u00a7 CARDINAL of ORG ) and confidentiality of the case file documents ( Rule CARDINAL of ORG ) . He was represented before the ORG by PERSON , a lawyer practising in PERSON .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant started dating the future mother of his child . They were engaged and moved in together . Their cohabitation broke down in DATE , before the child was born in DATE . The mother did not allow the applicant to visit his daughter .","On DATE the applicant \u2019s paternity was confirmed by ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) . The applicant contacted the child welfare authorities in order to have contact with the mother and the child , but in vain .","On DATE the applicant requested ORG to grant him visiting rights to his daughter .","On DATE and CARDINAL May CARDINAL the child \u2019s mother and her current husband requested that a restraining order be issued against the applicant .","On DATE the applicant attempted to murder the husband of the child \u2019s mother .","On DATE ORG issued a restraining order against the applicant . He was not allowed to approach the child , the mother of the child or her husband . This judgment was final .","On DATE ORG refused the applicant \u2019s application for visiting rights . It found that the applicant had never met his daughter , who was by then DATE . However , the applicant had had his paternity confirmed and had also tried to establish contact with his daughter . On the basis of these circumstances , visiting rights could be granted to the applicant . As the daughter did not know her father , the meetings needed to be conducted in the presence of the mother . The applicant being detained , these meetings would have to take place in prison , which could not be regarded as a suitable place for initiating the meetings . Considering the existence of the restraining order , the mother could not be obliged to take the child to prison to meet the father . There were thus no grounds for granting visiting rights to the applicant at that moment . Such rights could be granted later when the applicant was released from prison .","The applicant did not appeal against this decision .","On DATE the applicant requested ORG to change the previous decision so that the daughter would have the right to visit and to maintain contact with her father first under supervision and later unsupervised . The mother opposed such visiting rights .","On DATE ORG refused the applicant \u2019s application . It noted that the applicant had been found guilty of the attempted murder of the current husband of his child \u2019s mother . Although a prison sentence as such did not prevent visits from taking place , the applicant had committed the criminal act in a state of diminished responsibility and , while in prison , he had seriously threatened the life of the child \u2019s mother . It was not in the best interest of the child to meet her father , even under supervision .","NORP By letter dated DATE the applicant appealed against the decision of CARDINAL DATE to ORG ( hovioikeus , hovr\u00e4tten ) , reiterating the grounds already presented before ORG .","On DATE the applicant was released from prison .","On DATE ORG , after having held an oral hearing on DATE , rejected his appeal . It found that the child was at the time DATE . Even though the applicant \u2019s circumstances had improved since his release from prison , the child \u2019s mother still had grounds to fear for her life and the life of the child . Moreover , the applicant had been diagnosed as suffering from mental problems which also gave an additional reason to fear for the child \u2019s safety . In such a situation , the best interest of the child required that the applicant was not granted visiting rights .","By letter dated DATE the applicant further appealed to ORG ( korkein oikeus , h\u00f6gsta domstolen ) , reiterating the grounds of appeal already presented before ORG .","On DATE ORG refused the applicant leave to appeal .","According to sections CARDINAL and CARDINAL of ORG and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lagen ang\u00e5ende v\u00e5rdnad om barn och umg\u00e4ngesr\u00e4tt , Act no . CARDINAL\/CARDINAL ) , a child has a right to maintain contact with and visit the parent with whom he or she does not live . Custody and right of access must be decided in the best interest of the child ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71654","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2005,"docname":"LAZAREV AND LAZAREV v. RUSSIA","importance":2,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicants , Mr PERSON and Mr PERSON GPE , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The first applicant is the father and legal representative of the second applicant . The respondent Government were represented by Mr PERSON , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","Both applicants live , together with the second applicant \u2019s mother and his elder brother PERSON ( born in DATE ) , in a flat in GPE which is not the subject of the present application ( \u201c the old flat \u201d ) . Under the terms of a private ownership certificate dated DATE , the second applicant is the sole legal owner of the old flat .","In DATE the first applicant invested money in the construction of a block of flats in GPE . Once the work was completed , the first applicant registered title to a flat in that block ( \u201c the new flat \u201d ) in his own name and those of his CARDINAL sons , PERSON ( the second applicant ) and PERSON , in equal shares .","In DATE the applicant decided to sell the new flat and applied for clearance of the transaction to the guardianship and wardship department of ORG in south - eastern GPE ( \u043e\u0442\u0434\u0435\u043b \u043e\u043f\u0435\u043a\u0438 \u0438 \u043f\u043e\u043f\u0435\u0447\u0438\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0430 \u0440\u0430\u0439\u043e\u043d\u043d\u043e\u0439 \u0443\u043f\u0440\u0430\u0432\u044b \u00ab PERSON \u0433. GPE , \u201c the guardianship authority \u201d ) .","On DATE a deputy head of ORG informed the applicant that clearance would not be given because the sale \u201c would result in a reduction of your underage son \u2019s property \u201d and it would therefore be \u201c not in the interests of the minor \u201d . The applicant appealed to a court .","On DATE ORG of GPE gave judgment . It found that LAW of LAW did not apply because the new flat had not been ( formally ) donated to the second applicant , nor had it been inherited by him or acquired at his expense . The new flat had been purchased by the first applicant , who had invested his and his wife \u2019s savings . Having regard to the fact that the second applicant was also the legal owner of the flat where the applicants\u2019 family lived , the court found that the refusal by the guardianship authority had not been justified .","On DATE ORG , on an appeal by the guardianship authority , quashed the judgment and remitted the case to ORG . It pointed out that an interest in the new flat had been duly registered in the second applicant \u2019s name and that ORG had failed to verify what compensation would be made available to the second applicant following the sale of his share .","On DATE ORG of GPE delivered a new judgment and dismissed the complaint on the following grounds :","\u201c [ The first applicant ] confirmed before the court that onethird of [ the new flat ] had been transferred to [ the second applicant ] voluntarily . Accordingly , the sale of the flat , including [ the second applicant \u2019s share ] , would result in a reduction of his property .","The court can not take into account the [ first applicant \u2019s ] argument that the sale of [ the new flat ] would not impair the minor \u2019s rights because the minor is the legal owner of the [ old flat ] . The minor had acquired the right of ownership over the [ old flat ] in DATE , and in DATE he acquired the right of ownership to onethird of the [ new flat ] . As by that time he already had title to the [ old flat ] , the sale of onethird of the [ new flat ] would entail a reduction of the minor \u2019s property , which is not permitted under the applicable legislation . Pursuant to LAW and LAW , the underage child \u2019s property may be disposed of only in his interests .","Pursuant to letter no . CARDINAL\/CARDINAL - CARDINAL sent by ORG ( on DATE ) , the sale of residential LOC must in all cases be accompanied by the purchase of residential LOC in the minor \u2019s name , if he is to lose his share of the property . [ The first applicant ] did not produce any evidence showing how [ the second applicant ] would be compensated for the loss of onethird of the [ new flat ] . \u201d","On DATE ORG upheld the judgment of DATE . It endorsed the same line of reasoning : the transaction would result in a reduction in the minor \u2019s property and was therefore not in the minor \u2019s interests .","Article CARDINAL provides that a child acquires title to , inter alia , the property donated to him , inherited by him or acquired at his expense . The child \u2019s rights to dispose of his property are governed by Articles CARDINAL and CARDINAL of LAW . The parents may dispose of the child \u2019s property in accordance with the rules set out in LAW .","LAW provides that the child \u2019s parents have no title to the child \u2019s property .","Article CARDINAL provides that , with certain exceptions concerning smallscale , routine transactions , transactions entered into by minors aged DATE are valid only if approved by their legal representatives , in other words their parents , adoptive parents or guardians .","Article CARDINAL provides that transactions on behalf of a minor DATE must be carried out by his or her parents , adoptive parents or guardians . Transactions carried out by legal representatives of the minor in respect of the minor \u2019s property are governed by LAW and CARDINAL .","Article CARDINAL \u00a7 CARDINAL provides that a guardian may not alienate his charge \u2019s property or perform any transaction resulting in a reduction of the charge \u2019s property without obtaining preliminary clearance of the planned transaction from the guardianship and wardship authority . Article CARDINAL \u00a7 CARDINAL designates the local self - government bodies which are responsible for guardianship and wardship matters .","On DATE ORG of ORG sent a letter ( no . CARDINAL\/CARDINAL - CARDINAL ) entitled \u201c On additional measures for the protection of ORG right to housing \u201d to all guardianship and wardship departments . The relevant part of the letter reads as follows :","\u201c If a guardianship and wardship authority issues advance clearance of a transaction which involves the sale of a flat followed by the subsequent purchase of a flat , the operative part of the clearance ( resolution ) must either specify that the transaction is to be carried out subject to the condition that the new flat will be purchased in the minor \u2019s name if the minor loses his interest in the [ sold ] property , or indicate the address where the minor is to live if the minor is simply a member of the legal owner \u2019s family . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88665","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF AKULININ AND BABICH v. RUSSIA","importance":4,"conclusion":"Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)","judges":"Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the first applicant was arrested on suspicion of having hijacked a car together with the second applicant and a Mr F. , and was brought to PERSON police station . According to the first applicant , QUANTITY police officers beat him severely , kicking him in the head and back , to force him to confess to CARDINAL hijacking incidents which had occurred in that district of GPE . After his resistance had worn down , the first applicant wrote a statement , prompted by the police officers , confessing to a car theft . The record of his arrest was drawn up at TIME","On DATE police officers arrested the second applicant . The second applicant submitted that on his arrest he had been placed in the boot of a car and had been brought to PERSON police station , where police officers had beaten him up and had forced him to confess to a car theft .","On DATE the acting PERSON district prosecutor questioned the applicants about their participation in hijacking incidents and authorised their release on their own recognisance . According to the ORG , the applicants did not complain to the prosecutor about any police brutality .","On DATE and DATE the applicants were examined in hospital no . CARDINAL in GPE . The first applicant was diagnosed with a compression fracture of the bodies of DATE vertebrae and the second applicant was diagnosed with injuries to the right side of the chest and neck . The first applicant was suffering from severe back pain , for which he was prescribed treatment and given a medical corset . For DATE he wore the corset and underwent medical treatment .","The applicants complained to the LOC district prosecutor that they had been ill - treated in the police station after their arrest . In DATE the GPE district prosecutor \u2019s office initiated an inquiry into the ORG complaints .","NORP On DATE a senior assistant of the GPE district prosecutor declined to institute criminal proceedings against the police officers , finding no criminal conduct in their actions ( LAW ) . The decision read as follows :","\u201c On DATE the Fili - Davydkovo [ police department ] was informed by hospital no . CARDINAL in GPE that on those dates PERSON , [ the second applicant ] and [ the first applicant ] had on their own initiative requested medical assistance at hospital no . CARDINAL , where Mr F .... was diagnosed with ... , [ the second applicant ] was diagnosed with an injury to the neck and the right side of the chest and [ the first applicant ] was diagnosed with a compression fracture of DATE vertebrae . Mr F. , [ the second applicant ] and [ the first applicant ] explained that on DATE they had been beaten up by police officers in PERSON police station .","...","[ The first applicant ] , a minor , questioned in the presence of his mother , stated that on TIME on DATE he , PERSON and [ the second applicant ] had hijacked CARDINAL cars ... ; he had been arrested by police officers and brought to the duty unit of PERSON police station ; after his arrest , on DATE at TIME a police officer , whom [ the first applicant ] could not name , had entered the duty unit of PERSON police station and had taken [ the first applicant ] to his office on the second floor . In the course of the interview the police officer had urged [ the first applicant ] to confess to having committed a crime , kicked him several times in the small of the back and at the same time demanded that [ the first applicant ] confess to several other hijackings which he had not committed . Other police officers in plain clothes had entered the office where [ the first applicant ] was being questioned ; they had hit [ the first applicant ] in different parts of his body and had demanded that he name the persons with whom he had committed criminal offences on DATE and indicate their addresses . After his written confession ... had been obtained , he had been brought back to the duty unit of ORG police station . On DATE , after a measure of restraint in the form of a written undertaking had been imposed , [ the first applicant ] had been sent home . On DATE he had sought medical assistance at hospital no . CARDINAL , where he had been diagnosed with a compression fracture of DATE vertebrae and had undergone treatment until DATE .","According to forensic medical report no . CARDINAL\/CARDINAL of ORG , when [ the first applicant ] requested a medical examination no injuries were recorded on his body and the diagnosis of \u2018 an injury of the lumbar ORG was not confirmed by objective clinical data and could not be subjected to forensic medical identification .","When questioned on DATE by the acting PERSON district prosecutor , [ the first applicant ] stated that on DATE he had been arrested by police officers on suspicion of having stolen cars in the district under the jurisdiction of the PERSON police department . He did not complain about the conduct of the police officers , stating that the police officers had not used force or any other pressure against him .","The mother of the minor , [ the first applicant ] , PERSON , who was questioned in the presence of PERSON , a lawyer from no . CARDINAL ORG , stated that on DATE at TIME she had received a phone call from PERSON police station and had been informed that her son had been arrested on suspicion of a crime and had been kept in PERSON police station . On DATE at TIME , PERSON arrived at PERSON police station . From a conversation with an investigator she learned that her son had been arrested for having committed a hijacking in the district under the jurisdiction of the PERSON police department . The investigator allowed her to see and give food to her son . During a conversation in PERSON police station on DATE her son did not complain about the state of his health and did not say anything about being beaten by police officers . On DATE at CARDINAL CARDINAL PERSON took her son home ... On DATE her son complained to her of pain in his back and claimed that he had been beaten up by police officers in PERSON police station . PERSON did not attribute sufficient weight to her son \u2019s complaints and decided to treat him herself . On DATE she and her son sought medical assistance at hospital no . CARDINAL , where he was diagnosed with a compression fracture of DATE vertebrae . Her son underwent treatment and was on sick leave from DATE to DATE .","...","[ The second applicant ] gave similar explanations , asserting that on DATE he had sought medical assistance at hospital no . DATE , where he had been diagnosed with an injury to the neck and [ an injury ] to the right side of the chest ; he had not requested sick leave . He did not make any claims in respect of the police officers .","An investigator from the PERSON police department , ... PERSON , stated that on DATE , ... [ the first applicant ] had been arrested at TIME ... and [ the second applicant ] at TIME ; they had been questioned as suspects in relation to criminal case no . DATE ... in the presence of a lawyer , PERSON In the course of the interview the arrested persons did not make any complaints in respect of the police officers and did not complain about the state of their health ; after a measure of restraint in the form of a written undertaking had been imposed , they were released on DATE .","PERSON , a police officer at PERSON police station , explained during questioning that ... he had not questioned [ the first and second applicants ] , the arrested persons , and had not obtained any written statements from them ; he had not used any physical or psychological pressure against them .","Another police officer , PERSON . , stated during questioning that on DATE he had been in his office , no . CARDINAL . An arrested person ( [ the first applicant ] , as it transpired later ) suspected of having committed a hijacking had been there . The police officers , whose last names he did not know because he had worked in the police station for DATE , had questioned [ the first applicant ] . The police officers asked [ the first applicant ] questions pertaining to car thefts ; they had not used any physical , psychological or other pressure against [ the first applicant ] .","A junior police officer of the PERSON police department , PERSON . , gave a similar statement , asserting at the same time that when [ the second applicant ] had been brought from [ his ] place of residence he had not put him under any physical , psychological or other pressure . The arrestees had voluntarily , without duress , given statements pertaining to hijackings committed in the district under the jurisdiction of the PERSON police department .","Another police officer , PERSON , stated when questioned that on DATE he had had a conversation with [ the first applicant ] , who had informed him that he , Mr F. and [ the second applicant ] had stolen cars in the district covered by the police department . When he had talked to [ the first applicant ] , he had not used any physical or other pressure against [ him ] . Moreover , he , PERSON , had been involved in [ the second applicant \u2019s ] transfer [ to the police station ] . During the transfer Mr A. and the other police officers had not used any force or other pressure against the arrestees . After [ the second applicant ] and Mr F. had been brought to the police station , PERSON had talked to them in his office about car thefts committed by them . Mr F. and [ the second applicant ] had voluntarily , without duress , confessed to CARDINAL hijackings in the district of the police department . PERSON had not used physical , psychological or other pressure against the arrestees .","Hence , no objective data and evidence confirming the use of physical or other pressure by the police officers against [ the first and second applicants ] ... was gathered during the inquiry .","In view of the above , [ I ] conclude that there is no indication of a criminal offence ... in the police ORG actions .","However , the inquiry established that a minor , [ the first applicant ] , had been held for a protracted period in PERSON police station before an investigator took the decision to detain [ the applicants ] ... Following [ the first applicant \u2019s arrest ] at TIME .... and [ the second applicant \u2019s ] arrest at TIME , they were held in the duty unit of PERSON police station and were not transferred to the detention unit at GPE police station . On discovering these violations of the law the prosecutor \u2019s office issued a decision addressed to the head of the PERSON police department . \u201d","The decision of DATE was not served on the applicants .","The applicants were committed to stand trial before ORG of GPE ( \u201c the ORG \u201d ) . On DATE ORG , composed of the presiding judge PERSON and CARDINAL lay assessors P. and PERSON , remitted the criminal case for additional investigation and dismissed the request for release of the second applicant , who had been remanded in custody on DATE . ORG held that \u201c the defendants had committed serious criminal offences \u201d and that there were no grounds for releasing the second applicant . The lawyer for the first applicant , PERSON , appealed against that decision , but later withdrew her statement of appeal .","On DATE the applicants\u2019 lawyers complained to ORG about the beating in the police station . They noted that a similar complaint about police brutality had been raised before the PERSON district prosecutor \u2019s office . The lawyers insisted that the results of the prosecutor \u2019s inquiry were unknown to them and their clients and asked ORG to request the materials from the inquiry .","On DATE the trial began . ORG was composed of the presiding judge PERSON and CARDINAL lay assessors , PERSON and PERSON The applicants\u2019 lawyers , relying on Articles CARDINAL \u00a7 CARDINAL and CARDINAL of LAW , unsuccessfully sought the removal of the presiding judge , alleging her personal bias against the applicants . The applicants and their lawyers , referring to the hospital reports recording the applicants\u2019 injuries , further complained to ORG about the illtreatment occurring in the police station on DATE .","On DATE ORG found the applicants guilty of aggravated car theft and sentenced them to CARDINAL GPE imprisonment . As regards the allegations of police brutality , ORG noted that the investigating authority had conducted an inquiry into the applicants\u2019 complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven .","The applicants and their lawyers appealed . In their statements of appeal they complained , inter alia , that the ORG conviction contravened the principle of the presumption of innocence , as the presiding judge PERSON had already found them guilty in her decision of CARDINAL DATE , that ORG had not examined their ill - treatment complaints thoroughly , that it had not asked the investigating authorities to produce the case file relating to the inquiry into the allegations of police brutality , and that they had learnt about the prosecutor \u2019s decision of DATE only during the trial proceedings .","On DATE ORG upheld the conviction , reduced the applicants\u2019 sentence to CARDINAL years\u2019 imprisonment and ordered the first applicant \u2019s conditional release , noting that his injury , namely a compression fracture of DATE vertebrae , warranted his release . ORG held that the applicants\u2019 complaints about the beatings had been \u201c unfounded because these allegations were examined by the prosecutor \u2019s office and then by the [ ORG , and were correctly dismissed because they had not been proven \u201d . It further stated that ORG had not committed any violations of criminal procedural law .","The RSFSR Code of Criminal Procedure ( in force until DATE , \u201c the CCrP \u201d ) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities\u2019 own initiative , where there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for overall supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction ( LAW .","An appeal against a decision of a first - instance court ( including an order authorising or extending pre - trial detention ) lies to a higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against a judgment on the merits ( Article CARDINAL of the CCrP ) .","Under LAW of the CCrP a judge should not sit in a case if there are any grounds to conclude that he \/ she has a direct or indirect personal interest in the case . In such circumstances the judge should withdraw from the case ; failing this , a party has the right to lodge a motion to challenge the judge ( LAW ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61752","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2004,"docname":"CASE OF DONMEZ v. TURKEY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient","judges":"Georg Ress","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG and Highways , expropriated plots of land belonging to the applicant in GPE , GPE . A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place .","Following the applicant \u2019s request for increased compensation , ORG awarded him additional compensation at the statutory rate of PERCENT per annum , namely the rate applicable at the date of the court \u2019s decision . DATE was fixed by the domestic court for the running of the statutory rate of interest . On DATE , on ORG appeal , ORG upheld the decision of the first instance court . On CARDINAL DATE the administration paid the applicant CARDINAL NORP Liras as the additional compensation awarded to him together with interest .","The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , \u00a7 \u00a7 DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97230","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2010,"docname":"CASE OF RAITA v. FINLAND","importance":4,"conclusion":"Violation of Art. 6-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","The applicant and his siblings inherited real property from their father . The property is situated in GPE , PERSON . At the time , a master plan ( yleiskaava , generalplan ) had been drawn up for the area but it had not reached the town planning stage .","On DATE they sold the property for MONEY ( ORG ) ( MONEY ) ( ORG ) . The buyer was a company which was to be set up later and it was represented by the applicant .","On DATE the city decided to use its first call on the property , since it had already negotiated the purchase of the surrounding properties and the purchase price was considered advantageous .","On DATE the applicant challenged the city \u2019s decision .","On DATE ORG ( l\u00e4\u00e4ninoikeus , l\u00e4nsr\u00e4tten ) rejected his appeal , finding that pursuant to the Pre - emption Act ( etuostolaki , f\u00f6rk\u00f6pslagen ; Act no . CARDINAL\/CARDINAL ) the city had a first call on the property since the sellers and the buyer were not close relatives ( sections DATE ) . It did not uphold the applicant \u2019s argument that the pre - emption was manifestly unfair ( section CARDINAL ) .","On DATE the applicant appealed . On both parties\u2019 request , the consideration of the case was postponed pending negotiations with a view to reaching a friendly settlement .","On DATE ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) rejected the appeal .","On DATE the applicant lodged an extraordinary appeal , arguing that the parties had been taken by surprise by the decision of DATE since they had been given to understand that the proceedings would be stayed until a settlement was reached .","On DATE ORG upheld the applicant \u2019s appeal and annulled its earlier decision . Having examined the applicant \u2019s procedural complaint , and since the case file contained clarifications which had not been available to ORG when it took its decision on DATE , the case was referred back to the lower court .","ORG ( hallinto - oikeus , f\u00f6rvaltningsdomstolen , which had replaced ORG ) , received the parties\u2019 submissions , including , inter alia , a certificate according to which the property had a taxation value of ORG CARDINAL in DATE and an appraisal document according to which the property \u2019s market value was ORG CARDINAL . Both documents were lodged by the applicant . The city contested the appraisal document \u2019s relevance , arguing that it started from the wrong assumptions as to , inter alia , the size of the property and the planning situation . The city maintained that the purchase price , ORG CARDINAL , reflected the real value at the time of the purchase . The applicant also relied on a draft preliminary agreement ( drawn up in DATE ) between his father \u2019s estate and the city of PERSON , which stated an aggregate purchase price of ORG CARDINAL concerning the property in issue and another property . However , that price had been fixed on the understanding that the area would be the subject of town planning before the conclusion of the contract .","On DATE ORG revoked the city \u2019s decision . Although there was no evidence before it showing the market value of the property , it could however be concluded on the basis of an overall assessment of the case that the purchase price was below the market value . Having regard to the purchase price and the relationship between those who had signed the deed of sale , the court held that the pre - emption was manifestly unfair . It however rejected the applicant \u2019s complaint that the city had failed to duly inform him of its decision to pre - empt ( sections CARDINAL and CARDINAL of the Pre - emption Act ) . Having noted that the buyer was not the applicant but a company to be set up later , it also rejected his complaint that the city could not pre - empt the property as the sellers and the buyer were close relatives ( sections CARDINAL , CARDINAL and DATE ) . The fact that the deed of sale had subsequently been altered to the effect that the applicant stated that he had taken the place of the company did not detract from this position . The alteration had been made only on DATE , that is , after the lower court had rejected the applicant \u2019s appeal .","NORP The city appealed , arguing that the taxation value of DATE had no relevance to the case as the taxation value did not follow the fluctuations in the economic situation of the country or the demand for real property at a given time . It was to be noted that during DATE real property prices had dipped to CARDINAL of what they had been in DATE and DATE and that the taxation value was confirmed periodically and did not therefore reflect the situation in DATE . The city also argued that no relevance could be given to the relationship between those who had signed the deed of sale .","The applicant replied to the appeal , arguing that the market value was considerably higher than the taxation value . Furthermore , there had been no intention on the part of his family to sell the property to an outsider . He also argued that , following the entry into force of LAW ( maakaari , jordabalken ; Act no . CARDINAL\/CARDINAL ) , on DATE , he was to be considered the owner under LAW , section CARDINAL since no company had been established .","Pursuant to the practice in ORG , it invited the city \u2019s submissions in reply . The city argued ( submission dated DATE ) that the property \u2019s taxation value had dropped as follows : in DATE to ORG CARDINAL,CARDINAL ; in DATE to ORG CARDINAL and in DATE to ORG CARDINAL,CARDINAL . Furthermore , the fluctuations in the market value were reflected in the taxation value with a delay of DATE . The drop in the relevant property \u2019s value followed the general price development . The city maintained that in considering whether the conditions for pre - emption were met at the time of the purchase in DATE , no relevance could be given to facts occurring thereafter . It also noted that no town plan had yet been drawn up .","On DATE ORG overturned the lower court \u2019s decision . Referring to the Government PERSON on the enactment of the Pre - emption LAW and on subsequent amendments thereto , the court noted that the aim of the said LAW was , inter alia , to slow the increase in value of real property and to reduce the number of cases in which the parties to the purchase , in order to evade tax , did not state the full price in the deed of sale . It also noted that a considerably lower price than the market value could be relevant to the assessment of whether the conditions for pre - emption were fulfilled . The purchase price had , however , to be assessed in the light of the situation on the real estate market and the planning of the area at the time of the pre - emption . The court considered that the taxation value as such did not attest the property \u2019s market value and that the afore - mentioned appraisal document and draft preliminary agreement were in part based on wrong assumptions . It noted that no town plan had been drawn up and that the property consisted of vacant land , whose price was affected by the advantageous location as to traffic communication and the expectations as regards future lucrative use of the property . The assessment of the value , however , could not have been based on the price of the permitted building volume expected to be allocated by a town plan .","ORG considered that in assessing whether the pre - emption was manifestly unfair , the purchase price had to be considered in relation to the prevailing planning and real property market situation at the time of the pre - emption . The court found that no credible and undisputed evidence as to the relationship between the purchase price and the market value had been presented . It could not be concluded that the purchase price had been considerably lower than the market value simply on the basis of the location of the property and the existence of a master plan which lacked legal effect . Furthermore , manifest unfairness within the meaning of section CARDINAL of the Pre - emption Act could not arise solely from an advantageous purchase price . Nor was a court required to make precise comparisons of purchase prices . ORG concluded that the use of the city \u2019s first call on the property was not manifestly unfair , having regard in addition to the content of section CARDINAL and the aim of the Pre - emption Act , as explained in the travaux pr\u00e9paratoires , to improve the land situation of the municipality by guaranteeing the availability of vacant land to be used for building purposes and for forwarding , to check real property speculation and to reduce the number of cases in which , in order to evade tax , the full price was not stated in the deed of sale . The court also noted that there was no evidence to the effect that the parties to the purchase had a special bond with the property in question . As to the other complaints raised by the applicant , it confirmed the lower court \u2019s view . The decision ran to CARDINAL pages , of which CARDINAL pages contained reasons .","On DATE the applicant lodged an extraordinary appeal with ORG claiming , inter alia , that the court had not invited his submissions in reply to the city \u2019s second set of representations of CARDINAL DATE .","In its decision of DATE ORG noted that the city \u2019s above - mentioned second set of representations had not been sent to the applicant for comment . Nor had he received them for information , which was the practice in ORG . The applicant had received the second set of representations after the decision of CARDINAL DATE and he had been given an opportunity to comment on them during the extraordinary proceedings . Bearing in mind that the applicant had already been able to express his views in CARDINAL sets of proceedings before ORG and ORG , and that the representations had not affected its decision of DATE in such a way that the case should be reopened , the court rejected the applicant \u2019s extraordinary appeal ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69908","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2005,"docname":"CASE OF N. v. FINLAND","importance":3,"conclusion":"Violation of Art. 3 (if expelled);No separate issue under Art. 8;Non-pecuniary damage - finding of violation sufficient","judges":"Elisabet Fura;Lech Garlicki;Nicolas Bratza","text":["NORP The applicant , born in DATE , originates from the former GPE ( currently the ORG ) . He arrived in GPE on DATE and immediately applied for asylum .","On his arrival in GPE the applicant filed an asylum request written in LANGUAGE , stating that he had left the ORG DATE ; that he had been trained to join the presidential guards and had been working as an informant in Office D of the special force responsible for protecting the then President PERSON ( Division PERSON ; \u201c the ORG \u201d ) ; that he had belonged to the President \u2019s and the ORG Commander - in - Chief \u2019s inner circle ; that he had been arrested in GPE while in the possession of a ORG badge and a photograph of ORG ; that his life was in danger on account of his position and his GPE origin ; and that FAC regime ( who had seized the power in the ORG in DATE ) had put out a warrant of arrest on former ORG agents . The applicant named CARDINAL high - ranking officers within the ORG whose grades he also indicated .","According to the record of the asylum interview with the applicant on DATE , it was conducted with the assistance of a NORP interpreter . The applicant stated that he had been born on DATE in NORP in former GPE ; that he was a NORP of the NORP tribe ; that he had been a ORG agent by profession ; that he had resided at GPE no . CARDINAL at the presidential compound GPE in GPE ; that he was single ; that his mother tongue was PERSON and that he also knew NORP , PERSON and LANGUAGE . He indicated the names of his parents and sister . He had gone to elementary and high school for a total of DATE and had undergone a DATE training programme to become a garde civile . He had performed his military service in DATE , receiving the grade GT CARDINAL ( regional guard , class II ) . He also indicated his salary while working in the ORG .","The applicant further stated that he had been an asylum seeker in the GPE from DATE to CARDINAL DATE , when he had been deported . On his return he had been living at FAC together with the President \u2019s nephew , a named general . He had had at his disposal CARDINAL rooms , a living room , a shower and parking spaces for his CARDINAL cars . He had also had a considerable amount of money at his disposal .","Asked why he did not carry a passport on arriving in GPE , he had stated that it had remained with a ( named ) Commander in the President \u2019s administration when the applicant had left the ORG .","Asked to describe his departure from the ORG , the applicant stated that he had left GPE by boat to go to the airport in GPE ( GPE ) on DATE . At DATE he had continued by train to Point Noir and from there by boat to FAC in GPE . There he had been staying for DATE in order to acquire an NORP identity card ; he had been living in a house owned by a local . He had then travelled to GPE by plane ; he had run into some difficulties as he had not been speaking NORP ; he had been arrested but had been allowed to continue his journey after he had paid some money . He had stayed in GPE in the GPE neighbourhood for DATE , following which he had been detained in the PERSON prison for DATE ( in DATE ) , the authorities having taken him for a soldier in GPE \u2019s forces as he had been unable to speak LANGUAGE . During his detention a rifle had been used to hit him in the shoulder and he had been forced to dig graves . In DATE he had been transferred to an army prison in Bengela , where he had spent a further DATE . Prisoners had been forced to take part in armed fighting but the applicant had managed to avoid this due to his injured and infected shoulder . The fighting had occurred at the diamond mines where NORP rebels ( the ORG guerrilla ) had been fighting President PERSON do PERSON \u2019s troops .","After a fellow detainee , GPE , had promised to help him out of prison the applicant had arrived in the NORP border town GPE on DATE . With the assistance of a \u201c merchant \u201d he had left for GPE through GPE on DATE , travelling under a cover on a truck . From GPE he had departed for GPE on a ORG flight on DATE . The airport staff had helped him embark on the plane even though he had possessed no documents . From GPE he had continued on a ORG flight to GPE on DATE . GPE had arranged for someone to explain to the applicant how to get to GPE . In GPE the applicant had been able to transfer to the plane for GPE simply by showing his boarding pass .","As for his reasons for leaving the ORG in DATE , the applicant stated that when President PERSON had fled and had been replaced by LAW , the latter \u2019s regime had started killing all who had been working under PERSON . Were the applicant to return to the ORG he too would be killed as a former ORG agent . In addition , he was of the GPE tribe to which ORG also belonged .","Asked how he had organised his trip the applicant stated that GPE had paid ORG CARDINAL,CARDINAL for the whole \u201c package \u201d . The applicant had possessed some money of his own as well as diamonds . Before leaving the ORG he had stolen diamonds from \u201c the office of the NORP \u201d ; actually , it had not been a theft but \u201c a question of saving a life \u201d . The diamonds had belonged to PERSON \u2019s son ; the applicant had sold them in GPE for CARDINAL , aided by a friend named PERSON . The applicant had not seen which country \u2019s passport GPE had organised for him to use .","Asked about his political activities the applicant stated having worked as a secret agent for PERSON \u2019s army from DATE ( in the office of the ORG and ORG of the Bureau d\u2019Intelligence ) . Under the cover of a civilian in the street he had been listening in on the opposition \u2019s criticism of PERSON and had denounced various individuals critical of the regime . In DATE the ( named ) Commander of Office D had sent him to the GPE to denounce individuals criticising PERSON . After he had reported their names to the Commander their families in GPE had been apprehended . The applicant had travelled to the GPE on an NORP passport under the name of PERSON .","Asked whether he had ever been convicted and sentenced , formally wanted by the authorities or tortured or threatened , the applicant answered in the negative .","Responding to a request for assistance from the NORP authorities , ORG , in DATE confirmed \u2013 after having matched the applicant \u2019s fingerprints \u2013 that he had applied for asylum in the GPE in DATE , that his request had been refused in DATE and that his objection to the refusal had been declared unfounded in DATE .","It emerges from the material forwarded by the NORP authorities that when seeking asylum in DATE the applicant had referred to his father as a military official ; that from DATE the CARDINAL had been leaking information about the ORG to the opposition group ORG and had eventually been arrested ; that the applicant had been playing on the same football team as President PERSON \u2019s son ; that on DATE he had been granted leave to play a match after which he had managed to escape during a meal with the team ; and that afterwards he had travelled to the GPE via ORG , GPE , GPE and GPE .","The NORP authorities had concluded that the applicant \u2019s account in DATE had not been credible .","On DATE ORG ( ulkomaalais - virasto , utl\u00e4nningsverket ) ordered the applicant \u2019s expulsion to the ORG and prohibited him from re - entering GPE , or from entering GPE , GPE , GPE or GPE for DATE . The ORG found the applicant \u2019s account of his having belonged to President PERSON \u2019s and the ORG Commander \u2019s inner circle not credible . The applicant had also failed to prove his identity . If returned , the applicant would not face any real risk of treatment contrary to LAW merely on account of belonging to the same tribe as the former President or having worked as a lower - ranking official in his administration . As far as the ORG was aware , only higher - ranking officials who had been abusing their office risked prosecution by the PERSON regime . That regime had actually been quite accepting of officials having worked for PERSON and many such officials of senior rank had already returned to the country . The regime in the ORG had changed again in DATE , following which the general situation in the country had improved .","ORG further noted that the applicant had been found guilty on CARDINAL counts of shoplifting in DATE .","The applicant appealed to ORG on DATE .","At the hearing before ORG on DATE the applicant \u2013 assisted by counsel and an interpreter DATE stated that he was the son of an officer in the ORG and had been sent to military service at DATE . He had passed his school examination in DATE . His first missions for the ORG had involved infiltrating dissident student associations at universities . CARDINAL secret agents had been operating at different faculties . During a mission to GPE he had been investigating cobalt smuggling to GPE . He had travelled to GPE as a \u201c student \u201d and had denounced someone who had eventually been arrested . He had sworn CARDINAL oaths of loyalty , CARDINAL for the ORG ( Forces Arm\u00e9es Zairoises ) and a further one for President PERSON and the ORG . The latter had been responsible for the President \u2019s security and had been led by a general and his deputy , both of whom the applicant named . The President \u2019s son PERSON , a captain by rank had been ORG \u2019s friend ; they had slept in the same pavillon ( no . CARDINAL in the first zone of FAC ) , with the President \u2019s uncle PERSON and his children . The first zone of the compound had comprised altogether CARDINAL pavillons , intended only for the President \u2019s family . The compound had also comprised a second , less protected outer zone . ORG drew a map of the compound to show where pavillon no . CARDINAL had been located in relation to DATE . He also drew a map of the presidential offices as well as of those of the ORG and ORG . He indicated on the map the location of the President \u2019s special entrance and exit as well as the football field on the compound .","After the applicant had returned from GPE the ORG commander had assigned him for a mission to the GPE . After he had disposed of his NORP passport in GPE \u201c people smugglers \u201d had handed him a different one . The aim of this mission had been to denounce people who were falsifying ORG signature to collect money . Moreover , as President \u2019s PERSON \u2019s son had not been allowed to enter GPE to trade in cobalt and diamonds the applicant and other ORG agents were assigned to organise his illegal entry into GPE on a regular basis so he could do his business . A further aim of this mission had been to denounce dissidents in the GPE so that reprisals could be taken on their families in GPE .","The applicant had been escorted out of the GPE by police towards DATE . During a further ORG mission to the region of GPE , where troubles had begun with NORP refugees entering GPE , he had found out that LAW rebel troops had been infiltrating and poisoning GPE soldiers .","Around DATE it had been discovered that information on President PERSON \u2019s health was being leaked to PERSON \u2019s troops , involving a suspected traitor within ORG . The main suspect \u2013 the head of the postal and telecommunications services who had masterminded the tapping of mobile phones \u2013 had eventually fled to GPE but had returned when PERSON had taken over power .","As for the events surrounding the overthrow of President PERSON , the applicant had been woken up by ORG agents during TIME DATE as the ORG could no longer protect the President against PERSON \u2019s troops . The President had told his security staff he would leave for Gbadolite TIME and that a general within ORG \/ ORG \u201c had to die \u201d as he had asked the soldiers to lay down their guns and surrender to PERSON \u2019s troops . A general had been appointed Prime Minister during the emergency state . President PERSON had told his son PERSON that he should leave the country as the last member of their family . The applicant had been with ORG in the presidential ORG when word came that the general in question had been killed . In TIME of CARDINAL May the rebels had entered GPE . The ORG commander had already left for GPE after dispatching the President by plane to Gbadolite . The applicant and others ( CARDINAL persons in total ) had crossed the river to escape from GPE to GPE in cano\u00ebs rapides . From GPE they had planned to fly to Gbadolite . From the GPE airport ( \u201c LOC \u201d ) PERSON had telephoned to ask for a plane to pick them up . The pilot had refused to fly the plane out of GPE as it had been the property of GPE . The group had then decided to split up and to take different routes . The applicant and CARDINAL or CARDINAL others had gone by train to GPE and from there by boat to FAC in GPE . As he had spoken no local language , he had found a Lingala - speaker and had been able to procure an NORP identity document paper . The group had nonetheless been arrested at the FAC airport as they spoke no NORP . Immigration officials had detained them in a room but after the group had bribed a commander they had been able to leave by plane to GPE . It had been quite common for NORP to enter GPE by bribing border officials .","In Luanda N. had failed to obey a police officer in the street since he had not understood NORP . He had been detained at the Viam police station , where he had been assaulted . PERSON of this were still visible on his body . He had been transferred to FAC where he been forced to dig graves . Some prisoners had been \u201c recruited \u201d to fight in the army of the NORP leader PERSON against the rebel leader ORG . ORG had avoided this , as he had been injured in the shoulder and could not carry a fire arm .","The applicant had eventually been able to bribe a Lingala - speaking captain to let him \u201c escape \u201d . His friends had brought the necessary money and the captain had accompanied him to GPE at the NORP - Namibian border . In GPE , NORP shop owners had organised \u201c people smuggling \u201d to GPE via GPE .","The ORG agents had not intended to leave GPE for good . When President PERSON had been forced to escape to GPE to avoid being taken hostage by pro - PERSON agents , ORG had decided to go to GPE to join the ORG commander and another ORG general , following which they had repeatedly re - entered GPE to lead troops in the fighting against PERSON \u2019s army . The CARDINAL generals had eventually been arrested on the orders of President PERSON following a request by PERSON .","Replying to questions from his counsel , the applicant further explained that President PERSON had left for GPE in a NORP cargo plane used for smuggling weapons to the rebel leader ORG in GPE . A ORG car had been driven onto the plane so the President could sit properly . While in GPE the applicant and others in his group had watched on ORG how civilians in GPE had been showing the houses of GPE \u2019s supporters to the rebels . The applicant would have been killed instantly had he returned then . PERSON supporters who had been denounced had either been shot , burned alive by being placed in a car tyre set on fire or burned inside cars , as ORG had shown . If the applicant were to be returned to the ORG , those in power and even civilians would recognise him and he would be \u201c attacked \u201d since he had been close to GPE . If returned to ORG , a soldier such as himself could even be killed by ORG soldiers currently protecting President PERSON .","Replying to questions from the lawyer for ORG , the applicant reiterated the name of President PERSON \u2019s son : PERSON ( a.k.a . \u201c PERSON \u201d ) . The applicant further contended that he had sought asylum in the GPE for infiltration purposes .","When asked by a judge whether he had had \u201c his \u201d passport on him when leaving GPE for GPE , the applicant answered in the negative . He had paid CARDINAL of the \u201c people smugglers \u201d who had been working with airport staff to let him go through to the gate only with a boarding pass .","N. had originally wished to go to GPE but this had not been possible to organise due to the number of transits and the need to show a passport . He had not wished to go to GPE , where many NORP were living and he could have been recognised as someone who had been close to GPE . The \u201c agent \u201d organising his trip had suggested GPE and the applicant had accepted . As the itinerary had been GPE - GPE - GPE he had received CARDINAL boarding passes already in GPE . The name on his boarding pass had been PERSON or something to that effect . There had been no need for him to show a passport . He had financed the ticket by having sold diamonds in GPE . The President \u2019s son had given him diamonds before they had parted . In GPE a person had showed the applicant to the gate for the plane for GPE .","The applicant had not been in touch with his mother , father or sibling as the phone numbers had changed with the new Government .","Questioned further by another judge the applicant stated that the President \u2019s son had authorised ORG agents to take diamonds from the mines . He had been able to cross the border to GPE without any verification taking place . When he had been detained , the diamonds had been in his briefcase which had been locked with a code . He had carried it personally to GPE and had left it in a house there . When he had been arrested the other members of his party had taken care of his belongings , including the briefcase . The diamonds had been unpolished . As he had had to bribe persons and help various friends out he had sold the last ones in GPE . Their total value had been CARDINAL . He had had \u201c a little bit \u201d of money left when he arrived in GPE .","Questioned further by the third judge the applicant explained that his military service had lasted DATE in total ; he had been trained as a commando in ORG . After this he had returned to school . His training to become a garde civile had occurred at the age of CARDINAL . After DATE of training he had returned to ORG and had been expecting to be promoted to lieutenant . He had grown up with the President \u2019s son PERSON from DATE , when he had arrived in GPE . PERSON , DATE , had died in DATE . The applicant had not sought to contact PERSON \u2019s family and did not know their whereabouts . PERSON had had CARDINAL brothers , CARDINAL of whom had died in AIDS . The applicant had been sent to undergo military service as a punishment for being stubborn .","Questioned about his work and life in GPE the applicant stated that while he was volunteering in the GPE refugee reception centre , he was afraid of making friends with other NORP as they might find out that he had been in ORG and take revenge on him . CARDINAL other nationals of the ORG had received residence permits in GPE .","In its final pleadings to ORG considered the applicant \u2019s account not credible . There were significant contradictions in his account of his military service as well as discrepancies between the asylum record and his oral statements . While he had recounted many facts , he was not generally credible .","Counsel for the applicant underscored that the asylum record from the interview on DATE had been very meagre . In his oral statement the applicant had given a detailed and coherent account and his credibility was beyond doubt . ORG was claiming on very weak grounds that he was not credible . If there was any hesitation as to his credibility , the scales should tip in his favour . He risked persecution in ORG due to his nationality , ethnicity and political opinion . He not only feared ill - treatment emanating from the current regime but also from individual civilians seeking revenge . As he had no home to return to in the ORG he would be easily recognisable as a stranger and risk being questioned . The general human rights situation in the ORG was poor : security forces were carrying out killings and torture was wide - spread .","Counsel noted that CARDINAL interpreters had experienced difficulties following ORG vivid account . The asylum record indicated wrongly that the applicant had been living in the presidential palace whereas he had been living within the presidential compound .","On DATE ORG refused the applicant \u2019s appeal by CARDINAL votes to CARDINAL . The majority noted that he had been appearing under different names . As an asylum seeker in the GPE he had stated that he had been a player on the ORG national football team led by President PERSON \u2019s son . The applicant \u2019s father was said to have been working in the ORG . When seeking asylum in GPE the applicant had stated that he had worked in the ORG ; that he had formed part of ORG \u2019s inner circle ; that he had been the childhood friend of PERSON \u2019s son ; that he had been sent to the GPE to denounce asylum seekers from the ORG ; and that he had assisted PERSON \u2019s son in entering GPE from GPE . At the oral hearing the applicant had provided a fairly extensive and detailed account of his activities in the ORG following his removal from the GPE as well as of his escape via GPE to GPE during PERSON \u2019s coming to power . The account of his escape via GPE and GPE in DATE had resembled significantly the account he had provided to the NORP authorities when entering that country in DATE . ORG did not find credible the account of his itinerary in DATE , including his having been able to embark on the plane from GPE without a valid ticket and passport . In those circumstances and considering that it had not been possible to verify his true identity ORG was not convinced of his general credibility . Moreover , the information he had presented regarding the ORG , PERSON \u2019s son \u2019s family life and the presidential compound did not in itself show that the applicant had been in the ORG in such a position as to be of particular interest to the current regime . Hence he was not likely to have any justified fear of being persecuted or subjected to inhuman or degrading treatment or to any other serious violation of his rights , if returned to his country .","The dissenting judge found the applicant \u2019s account inconsistent despite its richness in detail . It did not therefore permit the drawing of any reliable conclusion as to his relationship with President PERSON \u2019s administration or as to whether he had worked in the ORG and , if so , in what position . Considering his detailed account the applicant could , on the one hand , have belonged to ORG and his relatives\u2019 inner circle without having had any direct contact with the President himself . On the other hand , the applicant could also have received the information regarding ORG administration from other sources . As his identity and background had not been convincingly established it could not be assessed whether the reason for his departure from the ORG had been persecution within the meaning of LAW ( CARDINAL ) of LAW . He could therefore not be granted asylum . Despite the lack of clarity of his account it could not be excluded however that he had been one of GPE \u2019s personal guards . This lack of clarity should be interpreted to the applicant \u2019s benefit . According to ORG of DATE , soldiers of the ORG were assessed as being at a particularly significant risk of being subjected to inhuman or degrading treatment or other serious violations of their rights . The applicant therefore remained in need of protection within the meaning of LAW and should have been granted a residence permit to that effect .","The dissenting r\u00e9f\u00e9rendaire , relying on essentially the same reasons as the dissenting judge , concluded that the applicant should have been granted asylum as being in need of protection from persecution within the meaning of LAW CARDINAL ( CARDINAL ) of LAW .","The applicant applied to ORG for leave to appeal asked for stay of enforcement .","On DATE the applicant was detained by the police and informed that he would be deported on DATE . His counsel was informed that ORG would not grant or rule on his request for a suspension of the deportation order . He was later informed that the applicant would be removed from the country on DATE .","On DATE the Government of GPE decided not to deport the applicant to the ORG until the ORG had examined the applicant \u2019s application , following the ORG \u2019s interim measure under Rule CARDINAL of ORG ( see \u00a7 CARDINAL above ) .","The applicant and his common - law wife PERSON met each other in DATE in GPE while they were both asylum seekers . They lived together in a reception centre for DATE until her deportation on DATE , her first asylum request having been refused .","NORP In DATE E. visited the applicant for DATE after her prohibition on re - entry had expired . As a result of this visit PERSON became pregnant . After this they kept up the contact by phone and mail .","On DATE E. arrived in GPE and filed a fresh request for asylum DATE . She moved in with the applicant in the reception centre in GPE . On DATE ORG refused the request as being manifestly ill - founded .","In DATE a child was born to the applicant and PERSON The applicant \u2019s acknowledgement of paternity was confirmed by ORG in DATE .","On DATE ORG granted the applicant leave to appeal but went on to refuse his appeal without an oral hearing . It found it established that on DATE ORG had applied for asylum in the GPE , claiming to be a football player and alleging that his brother and father had been working in the ORG . On his arrival in GPE on DATE he had filed a hand - written statement in NORP to the effect that he had left the ORG DATE ( i.e. in DATE ) as President PERSON and his close entourage had been chased out of the country . In GPE he had been detained because he had been in possession of a badge issued by the ORG and a photograph of President PERSON . In his asylum interview on DATE the applicant had claimed to have been a secret agent in the ORG and an infiltrator , whose actions in the GPE had led to the arrest of asylum PERSON family members in the ORG . Following his deportation from the GPE he had allegedly been living with the nephew of the former President .","The applicant had claimed to have been detained for DATE in GPE , whereas in GPE he had not been arrested , tortured , threatened . Neither had any warrant of arrest been put out in respect of him .","When arriving in the GPE the applicant had presented a identity document issued in former GPE on DATE , indicating as his date and place of birth DATE in GPE . He had claimed to have gone to school in GPE in DATE . In GPE he had presented no identity document but had claimed to have been born in Gbadolite . He had allegedly gone to school for DATE and had performed his military service in GPE in DATE .","According to the records , the applicant had appeared under CARDINAL different names . In his appeal to ORG he had explained the reasons for using those different names . ORG nevertheless considered that his identity and ethnic origin had remained unclear , which weakened the credibility of his account .","ORG further noted that his statements about the reasons for his arrests in GPE had differed . In particular , his allegation that he had , on that occasion , been carrying a ORG membership card and a picture of President PERSON was not credible . Neither did ORG find credible all aspects of his account of his journey to GPE .","In sum , the applicant had not shown in a credible manner that he had remained in the ORG until DATE . Neither had it been established where he had been residing between his expulsion from the GPE in DATE and his arrival in GPE in DATE . Even assuming that he had been sent to the GPE to infiltrate other asylum - seekers from his country , ORG did not find it credible that he would have gone there as an infiltrator in the manner recounted by him had he really belonged to PERSON \u2019s close entourage . Taking all the elements into account , it was justified to suspect that his various accounts were not based on facts which had actually occurred . This also weakened his overall credibility . His account as presented to the NORP authorities could not therefore be used as the sole basis for the court \u2019s decision .","The CARDINAL judges on ORG unanimously concluded as follows :","\u201c Taking into account the recent developments in the ORG which have taken place since the applicant has allegedly left the country , the period of time which has passed since his departure , the significant lack of credibility in respect of his allegations concerning the risks he will be facing on his return to the ORG , the fact that he has not even claimed that he has had any contact with the local authorities who have been in office since the change of the regime on CARDINAL DATE or that he would have come to their knowledge , ORG can not consider that the applicant is facing a real risk of becoming a subject of interest to the present rulers . Therefore , [ the applicant ] does not have a well - founded fear of persecution for reasons of his ethnic origin , membership of a particular social group or political opinion within the meaning of LAW , subsection CARDINAL , of LAW . Thus , he can not be granted asylum . Even though the general security situation in GPE , the capital of the ORG , is still very delicate , there is no well - founded reason to assume that [ the applicant ] would face a risk of being subjected to serious human rights\u2019 violations or to inhuman or degrading treatment in his country of origin . Thus , he can not be issued a residence permit on the basis of his need of protection either . \u201d","ORG furthermore found that the applicant \u2019s family life as established in GPE was not such as to attract protection under LAW , given that neither parent had a valid residence permit or any other connection with GPE .","K.K. arrived in GPE on DATE and filed for asylum or a residence permit on humanitarian grounds on account of her background in the ORG . She claimed to have been a soldier in the ORG . She had been arrested following the murder of President PERSON in DATE . She had been detained for DATE during which she had allegedly been raped repeatedly by guards . Her request was refused by ORG on DATE . She then appealed to ORG which held an oral hearing on DATE .","On DATE ORG , by CARDINAL votes to one ( with the r\u00e9f\u00e9rendaire also dissenting ) , upheld the refusal of asylum but referred the question of a residence permit back to the ORG , instructing it to issue PERSON with such a permit . ORG reasoned as follows :","\u201c The appellant is no longer likely to be arrested in her country of origin on account of the investigations into the murder of ( President ) PERSON . The appellant \u2019s personal prison experiences do not result from ( her ) belonging to a ( specific ) group in society or from her political views . Hence she can not be granted asylum .","Following the change of President in ( the ORG ) in DATE the general security and human rights situation in the country has improved . The appellant has stated having resided in GPE prior to leaving the country . The GPE area is relatively calm . The fact that armed confrontations are still occurring , particularly in the NORP parts , and that the country \u2019s human rights situation is not yet stable , is not as such a sufficient ground for granting ( the appellant ) international protection . When , however , account is taken of the entirety of the circumstances as recounted by the appellant as well as of the information available from international news sources regarding the treatment of soldiers serving the PERSON regime , it is justified to find that the applicant might , on account of her military background and her past experiences , risk being subjected to inhuman or degrading treatment in her country of origin . ( She ) is therefore in need of protection within the meaning of section CARDINAL of LAW and shall , for this reason , be issued with a residence permit . \u201d","DATE . The dissenters found , even assuming PERSON \u2019s account to be truthful , that there was no reason for supposing that she would still risk ill - treatment or other serious violations of her rights if returned to the ORG . The dissenters relied on the progress which had taken place in the country as well as on the fact that she had been of no particular interest to the authorities following the coup GPE in DATE . She was therefore not in need of protection .","In a letter of DATE submitted to the ORG in support of the applicant \u2019s case Ms. PERSON stated that she had formed part of the ORG as first sergeant - major based at FAC in GPE . She had been working in the reconnaissance unit of the FAC Commander ( au service des renseignements pour la s\u00e9curit\u00e9 des militaires ) . She had been arrested on DATE , DATE after the then President PERSON had died together with all soldiers of the ( former ) ORG who had been on duty during the coup d\u2019\u00e9tat on DATE ( when President PERSON had been assassinated ) . After several former military officials had been killed in prison the applicant and her family had decided to seek asylum abroad .","K.K. confirmed having worked with the applicant , whom she had recognised as having been a military official dealing with security matters in the General Staff of the ORG ( militaire \u00e9voluant \u00e0 la s\u00e9curit\u00e9 d\u2019\u00e9tat major de la ORG ) .","At the hearing before ORG in GPE ( see below ) PERSON handed in a copy of her military passport ( carte d\u2019identit\u00e9 de service pour les forces arm\u00e9es zairoises ) indicating her grade as first sergeant - major . She also handed in some photographs depicting herself and other soldiers in a uniform specific to the ORG .","On DATE ORG refused PERSON \u2019s appeal against the refusal of asylum or a residence permit on humanitarian grounds . It quashed the decision of to expel PERSON and returned the matter to ORG as the child born to PERSON in GPE had not been covered by the initial decision .","In a further decision of DATE ORG refused PERSON and her new - born child a residence permit and ordered their expulsion to GPE .","Following E. \u2019s appeal ORG , on DATE , stayed enforcement of the expulsion order .","On DATE ORG refused PERSON \u2019s appeal . It found , inter alia , that in the circumstances at hand PERSON and her family could , in the first place , be expected to settle and lead their family life in GPE , that being the country of origin of PERSON , her child with the applicant and her CARDINAL other children in GPE .","DATE . E. \u2019s further appeal remains pending with ORG .","The applicant","Before ORG the applicant maintained that he had been working for the ORG which had sent him to be trained in the garde civile . He stated the names and ranks of the commander of the garde civile and the ORG of the ORG , of which the ORG had formed part . Officials in the ORG had been better paid than ordinary soldiers in the ORG . The applicant \u2019s father had been one of PERSON \u2019s body guards .","The applicant had been gathering information used for protecting President PERSON . He had formed part of the bataillon de s\u00e9curit\u00e9 which had been responsible for that protection . Some ORG members had been responsible for guarding the President physically , whereas others had been assigned to information - gathering . The applicant had been working in the ORG headquarters . He had been infiltrating students at different universities and gatherings of ORG opponents . On each occasion there had been either CARDINAL or CARDINAL ORG members attending , in civilian clothes but armed . They had interfered with the gatherings and had identified the leaders who needed to be killed . After the applicant had denounced the persons in question other agents , specialised in torture , had taken over . His reports to his superiors , which had always been oral , had been forwarded to the President .","The first ( inner ) zone at FAC had accommodated the presidential office as well as the headquarters of ORG and the ORG . The applicant had been living with the children of the President \u2019s older brother . The residential LOC within the first zone had served as hotels previously . The applicant had had CARDINAL service vehicles at his disposal .","The applicant had met PERSON for the first time around DATE . He had taken the initiative to address her as she had been obliged to respect him as the son of an officer . He had not been working closely with PERSON as she had formed part of the garde r\u00e9publicaine d\u2019honneur which had been in charge of the security of FAC , its soldiers and families and had been led by a different commander . As he had been working in the ORG headquarters he had effectively occupied a higher position than GPE Unlike the applicant , she had been living in the second zone of the compound . He had not had any social contact with K.K. Even though she had been of higher rank , she and other officers had been required to show respect for the applicant and others forming part of the PERSON family .","The applicant confirmed having filed for asylum in the GPE in DATE in order to carry out his mission for the ORG which had been to infiltrate ORG asylum - seekers critical of PERSON in order to denounce them to ORG . He had denounced CARDINAL persons in this way . He had not been the only agent involved in such activities in the GPE .","At the time of seeking asylum in the GPE the applicant had stated being a member of the Basa\u00eft tribe \u201c for camouflage purposes \u201d . For the same purposes his whole account to the NORP authorities had been untruthful .","The applicant confirmed being able to speak LANGUAGE , LANGUAGE , LANGUAGE and some PERSON .","The applicant had been issued with an identity card by the ORG , indicating that he had been working in the ORG . Given his urgent departure from GPE in DATE he had not taken along that card or any other personal documents . He had only taken the diamonds . At any rate , as at the time passports were being handed out only for travel to specific locations he had not had a passport at hand .","In GPE he had \u201c purchased \u201d an GPE identity card . Later , in connection with \u201c paying \u201d for being released from prison he had been able to \u201c purchase \u201d an NORP passport . The NORP were suspecting all individuals originating from former GPE of supporting the rebel leader PERSON in the fight against the NORP President PERSON . Even with his NORP identity papers he could not avoid being arrested as he had addressed the police officers in PERSON and they immediately suspected his papers had been falsified .","As to the certificate of his degree ( brevet ) which he had brought with him to GPE by hiding it in his shoe , the applicant claimed it had been seized by the NORP border police never to be seen again .","As far as the applicant was aware , no warrant of arrest had been issued in his regard in the ORG .","The applicant \u2019s uncle , a general , had been the commander of the ORG . They had been in contact both professionally and within the family circle . The applicant \u2019s father had been commander of the information service .","As ORG refusal of his appeal had been reported in newspapers and on the Internet the whole NORP community in GPE had learnt of the reasons underlying the applicant \u2019s asylum claim .","The applicant had not had any contact with his family ( parents , sister or other relatives ) since DATE when he had left GPE for GPE in DATE . The new regime had changed all telephone numbers and the applicant had not been able to make contact .","When the applicant and PERSON had met in DATE , PERSON had asked about his background in the ORG . He had told her he had been a friend of the President \u2019s son but had declined to elaborate , telling her such information was secret . If they were to go to LOC one day , he would tell her more .","NORP The applicant stated that the interpreter assigned to him had found it difficult to translate the applicant \u2019s account during his asylum interview on DATE . This had become obvious to the interviewing police officer but the applicant had not raised the point at the time .","When the applicant and PERSON had met again in GPE he had asked PERSON to send a letter to the ORG after their respective asylum claims had been refused . He had not assisted her ; someone else had helped her write the letter in LANGUAGE .","E. confirmed being a NORP citizen . She had known the applicant for DATE . She had CARDINAL child by the applicant and CARDINAL by her ex - husband . After having been removed from GPE she had remained in contact with the applicant by telephone and correspondence . The applicant had never disclosed anything to her about his life or family in the ORG . When she had asked him about his work there , he had declined to reveal anything , saying the information was secret . For the same reason , he had also declined to enter into any details regarding his mission to the GPE . Some time before her removal from GPE in DATE he had told her he could not return to the ORG as the threatening situation there could lead to both of them being killed . They had never discussed his work or his country further .","E. further stated that while living in GPE her CARDINAL older children had been subjected to constant verbal abuse due to the colour of their skin . They had been unable to attend school for this reason . The family had also experienced harassment by the authorities ( arbitrary fines , etc . ) . Her CARDINAL older children were being cared for by her mother in GPE . PERSON had divorced in DATE and her older children had no contact with their father .","E. considered that if she , the applicant and their mutual child had to settle in GPE they would have no means of survival as the applicant would never be able to find employment .","E. had never considered joining the applicant were he to return to the ORG as their predicament would be similar to the one they would be facing in GPE ; the applicant had no relatives , residence or means in the ORG . Should the applicant be threatened on their return on account of his secret work before leaving his country , she too would fear for her life .","Mr PERSON","Mr GPE has been the head of the LOC section in ORG since DATE . DATE he was working as an adviser in charge of preparing decisions on asylum claims by NORP and others persons of NORP origin . He was responsible for refusing the applicant \u2019s claim for asylum .","Mr GPE found it striking that the asylum interview with the applicant had been extremely short . Even though the processing of his claim had lasted DATE in view of the application of \u201c FAC \u201d , the applicant had never wished to elaborate on the brief information he had given at the outset and had never referred to any sort of persecution . During this period of time the applicant could , for example , have submitted photographs showing him with PERSON family members . On the evidence before it , ORG had had to assume that he had not been part of ORG close family or of the ORG . Even assuming he had formed part of the ORG , it had to be assumed that he had been a low - ranking informant .","PERSON also found it remarkable that the applicant had not been able to provide any identity card , travel document , certificate of education or the like . Neither did the asylum file contain any indication of such a document having been presented at the applicant \u2019s arrival in GPE . Apart from his oral statements the only information relating to his background which ORG had at its disposal was the material forwarded by the NORP authorities .","Mr Heinonen did not share counsel \u2019s assessment that the applicant \u2019s account had been consistent and precise . It had contained many controversial points : for example , while he had claimed to originate from the GPE tribe in ORG , he did not speak PERSON but Lingala , GPE and NORP . PERSON is being spoken in the Bas - Zaire where he had claimed to originate from when seeking asylum in the GPE . Other elements had also suggested that he originated from GPE . Moreover , while claiming that he had been arrested in GPE as he had not mastered LANGUAGE , the most common language spoken there is actually PERSON . By way of further example , although he had claimed to have \u201c purchased \u201d an NORP passport he had stated , on arriving in GPE , that he knew neither the country nor the name of the passport he had been travelling on . Moreover , if as he claimed , he had brought diamonds along to GPE , why would he have ventured into GPE , at the time a very dangerous country ?","Mr GPE confirmed that on arriving in GPE the applicant had volunteered the information that he had been an asylum seeker in the GPE under a different name . It should be borne in mind , however , that the applicant was not a first - time asylum seeker and had provided many details to the NORP authorities in support of his first asylum claim .","Even assuming that the applicant had been a member of the ORG , he would not face any danger if returned to that country at present . As had emerged in the case of PERSON , she had been able , as a lower - ranking ORG member , to continue as a soldier in the army of ORG successor PERSON . A former ORG member maintaining connections with rebel or foreign forces in the pursuit of seeking to overthrow the current ORG government would certainly be of interest to that government and could be given international protection in GPE . ORG , however , had not put forward any such elements .","ORG . Mr Heinonen had taken part in a fact - finding mission to GPE in DATE . Since DATE the situation in the ORG had improved drastically . Already DATE , however , the applicant could have been returned to the ORG without facing any problems other than economic ones .","ORG was dealing with CARDINAL of cases a year involving ORG citizens . In a few of those cases asylum or a residence permit had been granted , either in view of the person \u2019s need for protection or on humanitarian grounds .","In DATE the NORP ORG had concluded that PERCENT of CARDINAL documents relied on by asylum seekers from former GPE had been falsified . Some of the asylum - seekers had also been in the possession of blank documents ( such as birth certificates ) as well as official stamps .","As for the conclusion reached by ORG in the case of PERSON , PERSON suggested it might have been motivated by her gender and the allegations of sexual abuse she had made .","PERSON was not aware of any ORG member having suffered ill - treatment on his or her return to the ORG from a NORP country . Some countries had been sending back CARDINAL persons a year . In a few cases the NORP authorities had monitored the person \u2019s return closely to ensure that it had been safe .","As for the applicant \u2019s prospects of settling with PERSON and their child in GPE , PERSON indicated that in accordance with current practice even a common - law spouse of foreign origin could be granted a DATE visa before being able to seek a DATE residence permit and eventually NORP citizenship .","PERSON","K.K. had completed her military training in DATE , following which she had been sent to work in the ORG , being part of the female platoon . She had first seen the applicant around DATE but had never been close to him . She knew he had been working in the \u201c bataillon special \u201d but his rank had been unknown to her . They had been greeting one another in passing at FAC . She had also seen the applicant during parades on the compound . She had understood that he had been part of PERSON \u2019s entourage as he had been speaking the President \u2019s language PERSON and had occupied a good position at FAC . GPE - speakers had been in a privileged position during PERSON .","After President PERSON had been removed from power in DATE the ORG had been discontinued and former members had been tortured , subjected to forced labour and malnourished . Those who had remained in the country had eventually been offered re - training in President PERSON \u2019s army . Eventually PERSON and other colleagues had been offered to assume essentially the same duties as before , namely to guard the entrance to LOC and to verify the identity of anyone accessing or leaving the compound . She had not seen the applicant after the soldiers on the compound had been told to vacate it in the aftermath of the coup in DATE .","K.K. confirmed having been questioned following the coup ORG on DATE , together with other members of the former ORG and ORG who had been on duty on DATE . She had been detained from DATE until DATE , when she had been released after her family had bribed a person in charge . She had been told by that person to leave the country immediately , which she had done .","K.K. was not aware of any case involving ill - treatment of a former ORG member having been returned to the ORG .","All members of the ORG were also soldiers of the ORG . Those detached to the ORG received an emolument in addition to their salary from ORG . PERSON stated the same salary as that indicated by the applicant in his testimony .","When they had been in charge of protecting PERSON the ORG members\u2019 uniform had been distinct from the one worn by ordinary soldiers of the ORG . When they had been protecting PERSON they had been wearing civilian clothes .","NORP After both PERSON \u2019s and the applicant \u2019s asylum claims had initially been refused PERSON had sent a facsimile to ORG at the applicant \u2019s urging . He had not written it for her ; someone else had helped her write it in NORP .","In guidelines issued by the ORG High Commissioner for Refugees ( \u201c ORG \u201d ) in DATE regarding refugees and asylum seekers from the ORG , soldiers of the ORG were generally assessed as a category risking persecution on account of association with the former ( PERSON ) regime . ORG noted that these soldiers were mainly from ORG \u2019s tribe ( GPE ) or region ( ORG ) . Members of the PERSON tribe were not however assessed to be at risk purely on account of their ethnic origin .","Among the other categories assessed to be at risk were high - ranking officers of the ORG ; members of the garde civile ( with the exception of its commander - in - chief to whom an exclusion clause in LAW might be applicable ) ; leading and active members of pro - GPE parties and other political allies , except for current sympathisers or members of the opposition who were not playing a substantial role within those parties ; and PERSON family members and close collaborators , especially those from the GPE tribe or the ORG region .","A ORG position paper of DATE urged GPE to exercise very serious caution in cases of involuntary return of individuals with a military profile or background . Security agencies and immigration authorities systematically arrested former militaries , in some cases even those returning voluntarily , where previous negotiations with ORG had not taken place .","A country report prepared for the Eighth ORG in DATE stated the following of particular relevance to the present case ( pp . CARDINAL ) :","\u201d Former members of ORG )","Not all , but many of the former PERSON soldiers have been persecuted since President PERSON came to power in DATE . Some were taken to GPE military base , ostensibly for ideological and military training . Many of them were caught up in that base at the time of the resumption of the war in DATE . Many are feared to have lost their lives there or have been accused of being in alliance with GPE or with the armed opposition , and indeed many of them have been targeted . There are some who have joined the new army , so it can not be said that all of them are targeted by the government , but indeed some have been . Another element that creates a potential problem for members of ORG and former PERSON soldiers is the aforementioned perception that some former members of ORG are plotting to launch an attack on GPE from GPE . Some of the ORG soldiers , particularly the members of the NORP sp\u00e9ciale pr\u00e9sidentielle ( ORG ) , which was the bodyguard corps of President PERSON , also fought in the wars in GPE and joined the GPE - GPE army . Many of them still remain there . Since DATE there have been reports and fears on the part of the ORG government that some of these people are organising and regrouping with an intention of returning by force to GPE and recapturing state power . So these people will still remain at risk , whether or not they may be directly or not at all involved in plots against the ORG government . Indeed some of them are currently in custody . There have been attempts by the CARDINAL governments to create an understanding by actual agreements not to attack each other , but there still seems to remain a kind of mistrust between them . As a result , at least the GPE regime fears that there could be an attack from GPE . Another significant factor is that many of these ex - FAZ joined the ORG armed political group and as a result were also evidently fighting against the GPE government . Now that some form of power - sharing agreement has been signed , if it is implemented , one would assume that these former soldiers will end up in the national army . This may happen , but again this agreement has yet to be actually implemented . By and large the risk of persecution will depend on the specific circumstances of the particular individual . As regards the question of how important the military rank of a former ORG soldier is in this context , it has to be borne in mind that in some of these armies a rank may not always mean what it does in better established armies . Particularly in the ORG , a low - ranking soldier may politically have more power than a top general . There have been cases where a sergeant would beat up a major . Yet , the major , coming from an ethnic group that is not closely allied to the president , would not hit back or get the sergeant , corporal or even private who attacked him punished . He would not dare to touch him , although he is e.g. only a private , because he comes from GPE . Without connections to influential persons at the top , being a general does not really mean much under such circumstances . In the case e.g. of GPE a NORP private may be able to challenge the power of a NORP senior officer , not because he has been ordered to do so by the president or by someone else , but because he feels that he can do anything with impunity , that nobody will touch him because he happens to come from the ethnic group that is supposedly or really in power .","Family members of ORG officials","It would be possible that the children of such a soldier , be it a high - ranking officer or a private , would be targeted by the new authorities due to the fact that their father held the respective position during the PERSON regime . Sometimes people are abused without any justification at all . On the other hand , even a civilian , linked to someone who was in a powerful position , may have been responsible for abuses for which he may be held liable or be subjected to reprisals . To cite an example , when a general \u2019s or minister \u2019s son drives an expensive foreign car or a military ORG , misuses power - or others only think he misuses power - or makes a lot of money , people would assume that he would not have that power and\/or money if he was not related to the minister . Hence , when that minister leaves power , that individual , too , could be at risk . While this does not happen on a regular basis , it is however a real possibility . ... \u201d","According to a further ORG assessment of DATE , certain individuals who had either been deported or had returned voluntarily to the ORG could face serious problems if interrogated by security forces upon arrival in GPE . Should the authorities discover that a deportee had a political or military profile , or had sought asylum abroad owing to such a background , he or she could be at risk of arbitrary detention and ill - treatment ( \u201c ORG from GPE \u201d , p. CARDINAL , \u00a7 CARDINAL ) .","Country - of - origin assessments by ORG","The Immigration and Nationality Directorate of ORG has been issuing DATE and even more frequent assessments of the situation in the ORG . The country report of DATE which also relies on sources going back to DATE made the following assessment of the current situation inter alia with regard to the groups mentioned below :","\u201c Persons Associated with ORG","CARDINAL An information response by ORG ( IRB ) dated DATE about the treatment of former diplomats and other individuals perceived as sympathisers with the former President stated that :","\u2018 According to ORG , many exiled high officials have returned to the country ( DATE ) . The same NORP newspaper added that \u2018 ORG are now present everywhere , including in government positions ( ORG DATE ) . Referring to \u2018 people who were linked to former President PERSON and the ORG [ ORG - Mobutist political party],\u2019 a DATE report stated that \u2018 persecution may result from either having held a very senior visible position in the party , the government or the security forces , or from overt opposition to the current government.\u2019 ( ACCORD \/ UNHCR DATE","CARDINAL further ORG reports dated DATE and CARDINAL March CARDINAL indicated that there was no particular adverse treatment of members of the GPE tribe , or the PERSON ethnic group , or persons from the ORG province [ associated with the former President PERSON ] , based on interviews with the president of the NORP human rights group ASADHO , and a journalist specialising in LOC . The sources explained that the transition institutions ( government , parliament , senate , army and others ) comprise individuals from various ethnic groups including the PERSON and PERSON , like those of other tribes in ORG .","CARDINAL Another ORG response dated DATE reported that the NORP human rights group Journaliste en Danger was not aware of any ordinary NORP citizen who had been prevented by the NORP authorities from renewing a passport issued during the PERSON regime . On the contrary the authorities had encouraged people to replace their old NORP passports for the new NORP ones .","CARDINAL A country fact finding report of DATE by ORG ( CEDOCA ) reported that after PERSON ousted PERSON in DATE many high - ranking officials of the former PERSON regime were arrested and imprisoned in LOC in GPE . Others managed to avoid being arrested by leaving the country . The report stated that the security situation improved for persons closely associated with the PERSON regime when PERSON came to power in DATE , and even more so , after FAC was signed in DATE . A large number of persons closely associated with the PERSON regime had now returned to the ORG .","CARDINAL ORG also stated that distant relatives of GPE living in GPE had not encountered any problems through being associated with PERSON , and also that negotiations took place in DATE between GPE and GPE to repatriate the remains of PERSON . According to the report , persons who were closely associated with the ORG during the PERSON regime were not at risk of persecution by the security forces and could therefore return to the country if they were abroad . The report concluded that \u2018 If PERSON \u2019s followers are not suspected of collaboration with the rebels , they are no longer persecuted . Affiliation to ORG former ORG [ political party ] does not involve the risk of political persecution.\u2019","CARDINAL According to a ORG Online news report dated DATE , close relatives of PERSON returned to the ORG from exile in DATE . PERSON , the son of the former president , returned to the ORG in DATE from exile in GPE , with his sister , ORG , to prepare his political party for the elections due to take place in DATE . PERSON \u2019s CARDINAL - brother , PERSON , returned to the ORG from exile in DATE . According to a news report by \u2018 The Independent\u2019 ( GPE newspaper ) dated DATE , the ORG sons returned to the ORG with President PERSON \u2019s blessing , and PERSON GPE , a former prime minister under the PERSON regime and other persons associated with the PERSON regime had also returned to the ORG .","Former Soldiers of Mobutu Regime including ORG","CARDINAL An information response dated DATE by the ORG about the treatment of a person whose family members had served in the army under former President PERSON stated that :","\u2018 The President of ORG africaine de d\u00e9fense des droits de l\u2019homme , ORG ) said during a DATE telephone interview that his organization is not aware of any particular treatment that would be imposed on a person merely because members of his or her family had served in the former army , under the ORG regime . He added that most members of ORG , formerly ORG ) are currently serving in ORG congolaises , FAC ) ( ASADHO CARDINAL Mar. CARDINAL).\u2019","CARDINAL According to a country fact finding report of DATE by ORG ( CEDOCA ) the security situation in the ORG for former soldiers of the ORG has improved since PERSON became president in DATE . According to the CEDOCA report , in DATE , many former ORG soldiers were serving in the current NORP army . In DATE , all the key positions in ORG ) high command were occupied by former ORG soldiers and CARDINAL former ORG soldiers were living in GPE . The same report concluded \u2018 When ex - ORG members are not suspected of collaboration with the rebels , they are no longer persecuted.\u2019","CARDINAL During the course of a country of origin information seminar in DATE , sponsored by ORG and ORG ( ORG ) , which was addressed by representatives from ORG and ORG , it was stated that the rank of a soldier might not always mean what it did in better established armies . It was stated that a low- ranking soldier may politically have more power than a top general , by virtue of his ethnic group and connections to influential persons .","CARDINAL According to a report dated DATE from ORG ( ORG ) ORG ( ORG ) an agreement had just been reached between the ORG and the neighbouring ORG to repatriate former combatants in both countries . ORG stated that :","\u2018 Similarly , the RoC [ Republic of Congo ] has , since DATE , been home to CARDINAL soldiers of the defunct ORG of the late ORG president , PERSON , and of his ORG , or ORG . The presence of these former soldiers has caused both ORG to trade mutual accusations of supporting coup makers , despite the existence of a non - aggression pact . In DATE , authorities in GPE accused GPE , and the ex - FAZ , of taking part in DATE ] attack on military targets in the ORG capital , GPE . . . . In DATE , both ORG signed an agreement with ORG for the repatriation of the ex - ORG and former soldiers seeking refuge in ORG but nothing concrete has been achieved.\u2019 \u201d","Section CARDINAL b of LAW DATE ( ulkomaalaislaki , utl\u00e4nningslagen ; CARDINAL ) , as amended by LAW , provided DATE before the whole LAW was replaced by the new Aliens Act DATE ( CARDINAL ) \u2013 that the spouse of a person residing in GPE and any unmarried child under CARDINAL whose guardian was a person residing in GPE , had to be regarded as family members of that person .","If the person residing in GPE was a minor child , his guardian was to be deemed a family member . People who were continuously sharing a household and cohabiting in a relationship resembling marriage had to be deemed to be in a situation comparable to that of spouses proper . A requirement for this comparison was that they had been cohabiting for a minimum of DATE , except if a child had been born to them in which case this time - limit did not apply .","Amongst others , the family member of a foreigner residing in GPE on the strength of a permit issued on the basis that he or she was a refugee or otherwise in need of protection , equally had to be issued a residence permit unless reasons relating to public order or safety or other weighty reasons militated against issuing such a permit . The overall consideration also had to take into account the possibility for a lawfully resident foreigner in GPE to move back to his or her home country or to a third state , if the family ties as a whole could be deemed to be strongest to such a country , in order to lead a family life there .","According to section CARDINAL , subsection CARDINAL ( CARDINAL ) an alien who entered GPE without a residence permit could be issued with a fixed - term residence permit :","CARDINAL ) if he or she had held NORP citizenship or had CARDINAL parent who was or had been a NORP citizen ,","CARDINAL ) if prior to entering GPE he or she had lived with a spouse resident in GPE or continuously had shared a household and cohabited without being married with a person resident in GPE ; or","CARDINAL ) if refusing a residence permit would be clearly unreasonable .","According to section CARDINAL ( CARDINAL ) , as in force from DATE to DATE , an alien was to be granted asylum and issued a residence permit if , owing to well - founded fear of persecution for reasons of race , religion , nationality , membership of a particular social group or political opinion , he or she was living outside his country of origin or habitual residence and if , owing to such fear , he or she was unwilling to avail himself of the protection of the said country . The following constituted special grounds for not granting asylum :","CARDINAL ) particular reasons relating to GPE \u2019s national security ;","CARDINAL ) he or she had committed a crime against peace , a war crime or a crime against humanity according to the terms of international agreements or had committed another serious crime other than a political offence ;","CARDINAL ) he or she had previously stayed in a country which had acceded to LAW had stayed in another safe country and applied for asylum there or had had the opportunity to do so ;","CARDINAL ) according to the LAW between GPE , GPE , GPE , GPE and GPE concerning FAC at ORG ( Finnish Treaty Series CARDINAL\/CARDINAL ) , another signatory to the LAW was obliged to readmit the alien in question ;","CARDINAL ) in compliance with LAW Lodged in one of LAW that was concluded in GPE on DATE ( later LAW ) , another contracting ORG was obliged to take responsibility for an asylum seeker ( DATE ) .","According to section CARDINAL , an alien residing in GPE could be issued with a residence permit as being in need of protection if he or she , in the country of origin or habitual residence , was threatened by capital punishment , torture or other inhuman or degrading treatment or could not return there because of an armed conflict or environmental catastrophe .","According to section CARDINAL ( CARDINAL ) ( FAC ) , an alien whose continued residence in GPE required a residence permit , but to whom it had not been issued , could also be refused entry .","According to section CARDINAL ( CARDINAL ) , an alien was to be refused entry as soon as it had been possible to ascertain that his entry into or residence in GPE could not be permitted . All the relevant matters and circumstances had to be taken into account when considering a refusal of entry . These included at least the duration of his or her stay in GPE , the relationship between a child and a parent , family ties and other ties to GPE . No one could be returned to an area where he or she could be subjected to treatment within the meaning of section CARDINAL or DATE or to an area from which he or she could be sent TIME to such an area .","According to section CARDINAL ( CARDINAL ) , an alien could be prohibited from entry to GPE for a maximum of DATE or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by ORG . The entry prohibition order could be revoked by ORG , either entirely or for a limited period , owing to changed circumstances or for an important personal reason .","According to section CARDINAL(CARDINAL ) ( CARDINAL ) , a decision of an administrative court in response to an appeal against a decision of ORG could be appealed against only if ORG had granted leave to appeal . Leave could be granted only if it was important to have the issue decided by ORG for the application of the law in other similar cases or for reasons of uniform judicial practice or if other weighty grounds militated in favour of granting such leave .","According to the Government PERSON for LAW ( Government Bill CARDINAL ) , in cases of doubt , the case should be decided in the asylum seeker \u2019s favour , provided that all the information available had been verified and the authorities were generally convinced of the reliability of the information provided by the asylum seeker .","NORP The current conditions and procedure for granting asylum or a residence permit on grounds of protection are stipulated in chapter CARDINAL of LAW ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92855","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2009,"docname":"CASE OF STROBEL v. AUSTRIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant is a university professor of ancient history and archeology who was appointed at ORG in DATE . Under the terms of appointment he was entitled to reimbursement of the removal costs and to a household allowance . In DATE the sum of MONEY ( ORG ) was paid to the applicant .","On DATE the applicant claimed reimbursement of the remaining removal costs in the sum of EUR CARDINAL,CARDINAL.CARDINAL and payment of the household allowance in the sum of ORG CARDINAL,CARDINAL.CARDINAL , plus PERCENT interest since DATE .","NORP The Dean of ORG dismissed the applicant \u2019s claim on DATE .","The applicant appealed on DATE to ORG , Science and Culture ( \u201c the Ministry \u201d ) .","The Ministry did not decide within the statutory DATE time - limit laid down in section QUANTITY of LAW . In DATE the applicant brought court proceedings relating to the claims at issue . A conditional settlement was reached but was revoked by the applicant in DATE . The applicant \u2019s action was dismissed in DATE .","Meanwhile , on DATE , the applicant complained to ORG under LAW about the administration \u2019s failure to determine his claim . On DATE ORG ordered ORG to issue a decision within DATE .","On DATE the ORG dismissed the applicant \u2019s appeal .","NORP The applicant lodged a complaint with ORG on DATE . ORG filed observations in reply on DATE .","On DATE ORG quashed the ORG \u2019s decision as being unlawful .","By decision of DATE the Ministry referred the case back to the ORG for a new decision . Meanwhile on CARDINAL DATE the applicant supplemented his claims , apparently requesting reimbursement of costs incurred for travelling between GPE and his former place of residence .","On DATE the applicant was summoned to a hearing and DATE the sum of ORG CARDINAL,CARDINAL was paid to the applicant with a view to reaching a settlement .","The hearing took place on DATE . According to the minutes the hearing served the purpose of establishing the plausibility of the applicant \u2019s claims as submitted on DATE and supplemented on CARDINAL DATE and to determine their amount with the participation of the applicant . It is then noted that , in the light of the explanations given , the costs and interest claimed seemed plausible . At the close of the hearing the parties concluded a friendly settlement with the following terms :","\u201c ( a ) ORG thus declares its willingness to transfer , in addition to the payment already made of CARDINAL and the regulated transport costs in the amount of LAW , the lump - sum of LAW within DATE to the account of Professor PERSON .","( b ) Professor PERSON , for his part , withdraws all requests in connection with the proceedings at issue . As a result , the demands and claims asserted in the present proceedings are completely settled and complied with . \u201d"],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94967","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF BARTOSINSKI v. POLAND","importance":4,"conclusion":"Violation of Article 8 - Right to respect for private and family life","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","By a decision of ORG of DATE the applicant was arrested and remanded in custody on suspicion of illegal production and sale of alcohol , selling cigarettes without payment of excise duty and membership of an organised criminal group . According to the applicant 's submissions , police officers used force against him during his arrest and insulted him . When ordering his detention , the court found that the evidence obtained in the case , in particular the testimonies of the other suspects and of a witness , bills , TIME of searches and telephone conversations , indicated a high probability that the applicant had committed the offences . The applicant 's detention was therefore necessary in order to prevent collusion and to avert the risk that he would exert pressure on witnesses or that the suspects would coordinate their testimonies .","During the investigation the applicant 's detention was successively prolonged by detention orders issued by ORG or ORG and dated DATE , CARDINAL DATE and CARDINAL DATE .","The applicant submits that the decision of DATE was served on him on DATE and that for DATE he had been kept in custody without having been provided with a relevant detention order .","In his letter of DATE ORG admitted that the service of the applicant 's motion for release had been delayed for DATE before reaching ORG .","In further letters , ORG stated among other things that the applicant 's correspondence with the prosecutor had not been delayed by ORG . On DATE , following the applicant 's complaint to the ORG about delays in the service of official letters , the President of ORG clarified that the applicant 's letter to ORG of DATE had been forwarded to the prosecutor on DATE and that a letter dated CARDINAL DATE had been served on the applicant on DATE .","NORP The applicant submitted an envelope containing a letter from the ORG , bearing several stamps of ORG dated DATE including a stamp \u201c censored \u201d ( \u201c ocenzurowano \u201d ) with an illegible date .","By a decision of CARDINAL DATE ORG granted the applicant permission to receive a visit from members of his family in the presence of an officer of ORG . The prosecutor stated that the applicant had previously been granted CARDINAL visits , on DATE and DATE , and that neither the family nor the applicant had requested more frequent meetings . On DATE ORG replied to the applicant that further visits had not been granted since no requests for such had been made .","On DATE the applicant was released from detention . The proceedings are pending .","NORP The legal provisions governing monitoring of detainees ' correspondence applicable at the material time are set out in a judgment delivered by ORG on DATE ( PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL )"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99186","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF G\u00dcL AND OTHERS v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria","text":["The applicants were born in DATE , DATE , DATE and DATE respectively .","On DATE the applicants were arrested by police officers from the Anti - Terrorist Branch of ORG . On DATE the applicants ' representatives applied to the principal public prosecutor 's office at ORG seeking information about the applicants ' arrest and the duration of their custody , as well as authorisation to provide them with legal assistance during their questioning by the police . The principal public prosecutor informed them that , under LAW of PERSON no . CARDINAL and sections CARDINAL and CARDINAL of PERSON no . PERSON , the applicants were not entitled to receive legal assistance during their police custody .","On DATE the applicants were brought before a public prosecutor at ORG and questioned about their alleged affiliation with ORG \/ ORG and ORG of GPE ( \u201c the ORG \/ ML - TIKKO - TMLGB \u201d ) , an armed , illegal organisation . Before the public prosecutor , PERSON stated that he was not a member of the organisation in question . He maintained that the periodicals found in his apartment were legal publications and that the poster allegedly found there did not belong to him . He had therefore refused to sign the arrest and search report . The applicant further stated that he was one of the founders and directors of the T\u00fcm Maliye - Sen ( PERSON \u2013 ORG ) and that , consequently , as a member of this trade union , he had participated in several demonstrations , such as the CARDINAL on DATE and demonstrations to commemorate the DATE Sivas Massacre . PERSON lastly contended that he had never shouted slogans in support of the TKP \/ ML - TIKKO - TMLGB .","Mr PERSON stated before the public prosecutor that he was not a member of the organisation in question . He maintained that the periodicals found in his apartment were legal publications and not propaganda tools for the TKP \/ ML - TIKKO - TMLGB . He further contended that he was a member of ORG ( \u201c KESK \u201d ) and that he had participated in several demonstrations . When the applicant was shown a photograph , allegedly of him at a demonstration behind a banner bearing the name Partizan , a periodical , he maintained that the person in the photograph could not have been him . Lastly , he stated that he did not remember whether on DATE he had participated in the demonstration to commemorate the DATE Sivas Massacre .","Mr Deniz Kahraman maintained that he had no affiliation with the TKP \/ ML . He said that he had taken part in DATE Workers demonstration in DATE and in the demonstration of DATE . When the applicant was shown a photograph allegedly of him at a demonstration behind a NORP banner , he maintained that the person in the photograph was not him .","Finally , PERSON stated that she was not a member of the ORG \/ ORG . She denied the allegation that she had written slogans in favour of the ORG \/ ML - TIKKO on the walls of schools in GPE . When she was shown a photograph in which she was allegedly carrying a picture of the general secretary of the TKP \/ ML - TIKKO , Ms PERSON contended that she had participated in the demonstration of DATE and that she did not know the person in the picture .","On DATE the applicants were brought before a single judge at ORG , where they repeated their statements made to the public prosecutor . The judge ordered PERSON detention and the other applicants ' release .","On DATE the public prosecutor at ORG filed a bill of indictment against QUANTITY persons , including the applicants . The public prosecutor charged PERSON with membership of an illegal organisation and the other applicants with aiding and abetting members of an illegal organisation , under LAW and CARDINAL of the former Criminal Code respectively . The public prosecutor alleged that PERSON had shouted slogans in support of the TKP \/ ML - TIKKO during DATE demonstrations in DATE and DATE as well as the demonstration of DATE , where she had been behind the ORG banner and carried a poster of the general secretary of the ORG \/ ML - TIKKO . It was alleged that during the said demonstrations PERSON had shouted :","\u201c Biz i\u015f\u00e7inin , k\u00f6yl\u00fcn\u00fcn yi\u011fit sesiyiz , namluya s\u00fcr\u00fclm\u00fc\u015f halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) \u201d ; \u201c PERSON , PERSON , PERSON , PERSON , PERSON ( PERSON , PERSON , PERSON , our leader is PERSON ; ORG is fighting ) \u201d .","It was also alleged that she had written ORG slogans on school walls in GPE , such as \u201c TKP - ML TIKKO \u201d , \u201c ORG ya\u015f\u0131yor , TIKKO sava\u015f\u0131yor ( ORG is alive , TIKKO is fighting ) \u201d ; \u201c PERSON TIKKO ( Long live our party TKP - ML , TIKKO ) \u201d ; \u201c PERSON \u00f6lmez , ya\u015fas\u0131n halk sava\u015f\u0131 ( Guerrillas do n't die ; long live the people 's war ) \u201d ; \u201c ORG ve devrim \u015fehitleri \u00f6l\u00fcms\u00fczd\u00fcr ( the martyrs of the party and revolution are immortal ) \u201d ; \u201c ORG TIKKO i\u015f\u00e7i k\u00f6yl\u00fc elele demokratik devrime ( TKP - ML , ORG , workers and peasants hand in hand , towards democratic revolution ) \u201d . The applicant was also alleged to have participated in seminars held in cultural centres and in the headquarters of a left - wing political party and a trade union . Furthermore , the applicant was suspected of having sold the periodical PERSON .","As regards Mr PERSON , the public prosecutor noted that he had participated in the DATE demonstration of DATE , where slogans in support of the TKP \/ ML - TIKKO had been shouted , such as \u201c ORG PERSON ( Our leader is PERSON ) \u201d ; \u201c PERSON ( Long live the people 's justice ) \u201d ; \u201c PERSON ( Long live our party TKP - ML ) \u201d ; \u201c PERSON namlunun ucundad\u0131r ( Political power grows out of the barrel of the gun ) \u201d ; \u201c PERSON \u00f6nderimiz Ibo , PERSON ( PERSON , PERSON , PERSON , Our leader is ORG ; TIKKO is fighting ) \u201d ; \u201c Biz i\u015f\u00e7inin , k\u00f6yl\u00fcn\u00fcn yi\u011fit sesiyiz , namluya s\u00fcr\u00fclm\u00fc\u015f halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) \u201d ; \u201c PERSON , i\u015f\u00e7i , k\u00f6yl\u00fc , gen\u00e7lik halk sava\u015f\u0131nda birle\u015ftik ( Our leader is PERSON ; workers , peasants and youth , we are all united in the people 's war ) \u201d . The public prosecutor alleged that Mr NORP had also shouted illegal slogans in the demonstration of DATE . Furthermore , it was noted that some periodicals , a picture of a member of the TKP \/ ML - TIKKO and a book had been found in his apartment .","NORP The public prosecutor alleged that Mr PERSON had participated in the DATE demonstrations of DATE , the LOC celebrations in DATE and the demonstrations of DATE and CARDINAL to commemorate the Sivas Massacre , where he had shouted slogans in favour of the TKP \/ MLTIKKO , such as \u201c NORP partimiz LAW ( Long live our party TKP - ML ) \u201d ; \u201c Fa\u015fizme isyan , halka \u00f6nder partisan ( PERSON against fascism ; the leader is ORG ) \u201d ; \u201c PERSON namlunun ucundad\u0131r ( Political power grows out of the barrel of the gun ) \u201d ; \u201c PERSON ad\u0131 ORG ( TKP - ML is our hope ) \u201d ; \u201c Biz i\u015f\u00e7inin , k\u00f6yl\u00fcn\u00fcn yi\u011fit sesiyiz , namluya s\u00fcr\u00fclm\u00fc\u015f halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) \u201d ; \u201c GPE , TIKKO TMLGB ( ORG , TIKKO , TMLGB ) \u201d ; \u201c PERSON , y\u0131kaca\u011f\u0131z elbet ( ORG will surely be demolished ) \u201d ; \u201c PERSON hesaplar\u0131 namlular sorar ( It is the barrel of the gun that will call to account ) \u201d . He further noted that periodicals and books in support of that organisation had been found in the applicant 's apartment .","Finally , the public prosecutor stated that PERSON had taken part in DATE demonstrations of DATE and the demonstration of DATE , where he had shouted ORG \/ ORG slogans including \u201c PERSON isyan , halka \u00f6nder PERSON ( PERSON against fascism ; the leader is ORG ) \u201d ; \u201c NORP parimiz TKP - ML ( Long live our party TKP - ML ) \u201d ; \u201c Biz i\u015f\u00e7inin , k\u00f6yl\u00fcn\u00fcn yi\u011fit sesiyiz , namluya s\u00fcr\u00fclm\u00fc\u015f halk mermisiyiz ( We are the brave voice of the workers and peasants ; we are the public 's bullet lodged in the barrel of a gun ) \u201d ; \u201c i\u015f\u00e7i , k\u00f6yl\u00fc , gen\u00e7lik halk sava\u015f\u0131nda birle\u015ftik ( workers , peasants and youth , we are all united in the people 's war ) \u201d ; \u201c PERSON hesaplar\u0131 namlular sorar ( It is the barrel of the gun that will call to account ) \u201d . The public prosecutor also noted that certain periodicals had been found in the applicant 's apartment .","On DATE ORG held the first hearing on the merits of the case and heard the accused . The applicants reiterated their statements made before the public prosecutor and the single judge on DATE and retracted their statements taken by the police . On DATE , the first - instance court ordered PERSON GPE 's release from prison .","ORG held QUANTITY hearings and on DATE gave its judgment . The court convicted the applicants under LAW , which read as follows at the material time :","\u201c Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not DATE imprisonment ... \u201d","The first - instance court sentenced the applicants to DATE and DATE imprisonment . It found it established that the applicants had participated in the demonstrations behind ORG \/ ORG banners and shouted slogans in support of that illegal organisation . The court based its judgment on the transcriptions of video recordings of demonstrations made by ORG of ORG , photographs taken by the security forces and the applicants ' \u201c evasive \u201d statements made to the police , the public prosecutor and the single judge at ORG , as well as the arrest and search reports , according to which periodicals used as propaganda tools for the TKP \/ ML - TIKKO had been found in the applicants ' apartments . The court also noted that some of the periodicals were illegal as the distribution of certain issues had been suspended by court decisions .","On DATE ORG upheld the judgment of DATE .","Following the enactment of PERSON no . DATE , which came into force on DATE , the phrase \u201c or facilitates its operations in any manner whatsoever \u201d was removed from the text of LAW of the former LAW .","Subsequently , the case against the applicants was reopened at the request of both the applicants ' representative and the public prosecutor at ORG .","On an unspecified date PERSON filed a request with ORG to benefit from the Reintegration of Offenders into Society Act ( Law no . DATE ) , which came into force on CARDINAL DATE .","In the meantime , on DATE PERSON started serving her prison sentence .","By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished . The case against the applicants was transferred to ORG .","On DATE ORG delivered its judgment . It allowed PERSON request and decided not to convict her , in conformity with section CARDINAL of PERSON no . DATE . As a result , she was released from prison . As regards the other applicants , ORG held that , following the amendment to LAW , the acts committed by them could not be considered to constitute the offence defined in that provision . The court nevertheless found Mr PERSON , Mr PERSON and PERSON guilty of disseminating propaganda related to an illegal armed organisation through incitement to use violent methods , an offence proscribed by section CARDINAL \u00a7 CARDINAL of the Prevention of Terrorism Act . It sentenced them to DATE imprisonment .","Mr PERSON and Mr PERSON appealed .","On DATE the principal public prosecutor at ORG sent the case file back to ORG for the reconsideration of its judgment of DATE since , in the meantime , a new Criminal Code had entered into force ( Law no . DATE ) .","On DATE ORG once again convicted PERSON and PERSON under section CARDINAL \u00a7 CARDINAL of the Prevention of Terrorism Act of disseminating the propaganda of an illegal armed organisation through incitement to use violent methods , and sentenced them to DATE imprisonment .","Mr PERSON and Mr PERSON appealed . According to the latest information in the case file , the proceedings are still pending before ORG .","The relevant provision of the former Criminal Code reads as follows :","Article CARDINAL","\u201c Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever , shall be sentenced to not CARDINAL and not DATE imprisonment ... \u201d","Under LAW of LAW ( Law no . CARDINAL of DATE ) , any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of DATE .","Finally , Law no . DATE on the Reintegration of Offenders into LAW applies to members of terrorist organisations who surrender to the authorities without armed resistance , either directly , on their own initiative , or through intermediaries , those who can be considered to have left a terrorist organisation , and those who have been arrested . The law also applies to those who , despite being aware of the aims pursued by the terrorist organisation , provided shelter , food , weapons , ammunition or any other kind of assistance . An important feature of the rehabilitation law is that it provides the possibility of reducing the sentences of those who wish to take advantage of the law by providing relevant information and documents on the structure and activities of the terrorist organisation ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-97222","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF MALYSH AND OTHERS v. RUSSIA","importance":3,"conclusion":"Violation of P1-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants are :","( CARDINAL ) Mr Nikolay Ivanovich Malysh , born in DATE ,","( CARDINAL ) Mr PERSON , born in DATE ,","( CARDINAL ) Mr PERSON , born in DATE ,","( CARDINAL ) PERSON Aleksandrovna Sannikova , born in DATE ,","( CARDINAL ) PERSON , born in DATE , and","( CARDINAL ) Mr PERSON GPE , born in DATE .","All the applicants are NORP nationals living in LOC . They are all holders of ORG bonds .","NORP In DATE the General Secretary of ORG PERSON presented his \u201c basic theses \u201d , which laid the political foundation for economic reform heralding the transition to a market economy . Several laws were enacted which opened up the ORG - dominated planned economy to private enterprise . However , the ORG preferred to keep control over consumer prices rather than leaving them to be determined by the free market .","By DATE Government spending increased sharply as a growing number of unprofitable enterprises required State support , whereas more resources were diverted to subsidise consumer prices . At the same time , the elimination of central control over production decisions , especially in the consumer - goods sector , led to a breakdown in traditional supply - demand relationships . This resulted in pervasive shortages of food and basic consumer goods . The Government reacted by introducing ration stamps for food and certain hygiene articles .","In addition to ration stamps , the Government of the NORP Socialist GPE ( RSFSR ) put into circulation several types of so - called \u201c commodity bonds \u201d ( \u0442\u043e\u0432\u0430\u0440\u043d\u044b\u0435 \u0447\u0435\u043a\u0438 ) which gave their bearers the right to purchase consumer goods , such as refrigerators , washing machines , tape recorders and passenger cars . The Urozhay-CARDINAL ( \u201c ORG \u201d ) bonds were CARDINAL of many types of bonds ; they were distributed among agricultural workers and companies which had sold grain and other agricultural produce to the ORG in DATE and DATE . Those bonds were designed to encourage agricultural workers to sell produce to the ORG in exchange for the right to priority purchasing of goods in high demand ( see paragraph CARDINAL below ) . The ORG paid workers for the produce at fixed prices and also gave them bonds in amounts proportionate to the value of the produce sold .","The ORG bonds were not legal tender , but they had a certain nominal value indicated on their face . That value determined the maximum purchase price of consumer goods which could be sold on production of the bonds . The bonds were not intended for payment but merely for certification of the right to purchase specific goods ; the sale of goods was conditional on payment of the full purchase price by the bond - holder and production of the bonds for the same amount . The bonds were not registered in the person 's name or otherwise personalised and ORG did not prevent them from being transferred among individuals and legal entities .","On DATE ORG decided to put an end to the regulation of retail prices . Shops began to fill up with merchandise but prices increased at a staggering speed ( the inflation rate in DATE was PERCENT ) . In DATE , the Government established that goods available under the bonds would be sold at the prices fixed before DATE ( see paragraph CARDINAL below ) .","In DATE the Government introduced the possibility of buying out the bonds with a coefficient of CARDINAL . In DATE , the coefficient was raised to CARDINAL ( see paragraphs CARDINAL and CARDINAL below ) . It appears that a significant number of bonds were bought out by the ORG before the buyout operations were stopped in DATE ( see paragraph CARDINAL below ) .","NORP In DATE the status of the commodity bonds was codified in LAW passed by ORG ( see paragraph CARDINAL below ) . Its text was very laconic , shorter than CARDINAL page , but it purported to cover every type of commodities bonds issued in DATE . LAW recognised the commodity bonds as part of the internal debt of GPE ; section CARDINAL fixed at DATE the limitation period for the obligations arising out of commodity bonds ( the starting date was not specified ) ; section CARDINAL required the Government to adopt a programme for settlement of the internal debt .","In DATE the Government presented the programme for settlement of the internal debt ( see paragraph CARDINAL below ) . It covered every type of commodity bond , save for the ORG bonds . DATE before LAW was amended so as to provide that the settlement of the debt under the ORG bonds would be regulated by a special federal law ( see paragraph DATE below ) .","DATE the application of section CARDINAL of LAW was suspended in the part concerning the ORG bonds , in accordance with the laws on the federal budget for DATE ( see paragraph CARDINAL below ) .","In DATE ORG passed a law on the buyout of the ORG bonds and the Government issued implementing regulations which set out a detailed procedure for buyout of the bonds ( see paragraphs CARDINAL and CARDINAL below ) .","The applicants Mr PERSON and Mr PERSON are holders of ORG bonds with a total nominal value of CARDINAL and CARDINAL non - denominated NORP roubles ( ORG ) respectively .","In DATE PERSON and PERSON brought an action against ORG and ORG , seeking compensation for the damage incurred through the ORG 's continued failure to effect payment under the bonds .","After several rounds of judicial proceedings , on DATE the ORG of the LOC refused their claim for the following reasons :","\u201c At present the ORG programme for settlement of the internal debt in DATE has been developed and is being implemented . LAW described the debt arising out the ORG bonds as a medium - term debt . Accordingly , pursuant to LAW of GPE , the maturity date has not yet occurred . It follows that the executive bodies of GPE are now taking measures for the settlement of the debt to the plaintiffs . In these circumstances , the court can not find that any acts or failures to act on the part of the defendant have caused any damage to the plaintiffs . \u201d","On DATE ORG upheld that judgment on appeal .","The applicant Mr PERSON also holds ORG bonds with a total nominal value of ORG CARDINAL,CARDINAL .","On DATE he sued ORG and ORG for the damage incurred through the ORG 's continued failure to effect payment under these bonds .","On DATE the ORG of the LOC refused his claim for the same reasons as those given in the above - quoted judgment of DATE .","On DATE ORG upheld the judgment on appeal .","The applicant Mr PERSON is the holder of ORG bonds with a total nominal value of ORG .","On DATE he sued ORG and ORG for the damage incurred through the ORG 's continued failure to effect payment under these bonds .","On DATE the Tambovskiy ORG of the Amur Region refused his claim for the same reasons as those given in the above - quoted judgment of CARDINAL DATE .","On DATE ORG upheld the judgment on appeal .","The applicant PERSON is the holder of ORG bonds with a total nominal value of ORG .","On DATE she sued ORG and ORG for the damage incurred through the ORG 's continued failure to effect payment under these bonds .","After several rounds of judicial proceedings , on DATE the ORG of the LOC refused her claim because a federal law governing the procedure for the settlement of the debt arising out of the ORG bonds had not yet been adopted and because the law on the DATE federal budget had suspended the application of LAW in the part concerning ORG bonds .","On DATE ORG upheld the judgment on appeal .","The applicant PERSON is the holder of ORG bonds with a total nominal value of ORG .","On DATE she sued ORG and ORG for the damage incurred through the ORG 's continued failure to effect payment under these bonds .","On DATE the NORP ORG of the Amur Region refused her claim because a federal law governing the procedure for the settlement of the debt arising out of the ORG bonds had not yet been passed and because the law on the DATE federal budget had suspended the application of LAW in the part concerning ORG bonds .","On DATE ORG upheld the judgment on appeal .","The applicant Mr PERSON is the holder of ORG bonds with a total nominal value of ORG .","On DATE he sued ORG and ORG for the damage incurred through the ORG 's continued failure to effect payment under these bonds .","After several rounds of judicial proceedings , on DATE the ORG of the LOC refused his claim . It referred to the case - law of ORG to the effect that :","\u201c ... the balance between the rights and lawful interests of persons who are creditors of the ORG , on the one hand , and all other persons , on the other hand , may only be fixed in the form of an act of the federal legislature . \u201d ( decision of DATE )","As no such act had yet been passed , the court dismissed Mr PERSON 's action .","On DATE ORG upheld the judgment on appeal .","On DATE ORG no . CARDINAL on urgent measures for increasing the purchase of agricultural products harvested in DATE and for ensuring their safe keeping . Its relevant parts resolved as follows :","\u201c CARDINAL . To authorise all manufacturers of agricultural produce to sell the surplus of such produce that remains after delivery under existing agreements ... to procurers or other consumers at negotiated prices ...","To declare inadmissible any restrictions on the sale or shipment of agricultural produce to consumers in autonomous districts or regions of the ORG under paragraph CARDINAL of the present resolution ... Should local councils introduce such restrictions in their territories , ORG may stop issuing ORG bonds or delivering goods on the basis of them in those territories ... \u201d","\u201c CARDINAL . To begin issuing , in DATE , ORG bonds to employees of collective and NORP farms , other agro - industrial enterprises and organisations , peasants ' farms and owners of personal subsidiary land plots in respect of agricultural produce sold to the ORG .","To determine that the bonds certify the right to purchase goods in high demand at retail prices in trade outlets . The said bonds are not legal tender .","The RSFSR Ministry of Finance and ORG will , until DATE , print and put into circulation through the branches of ORG Urozhay-CARDINAL bonds for a total amount of MONEY . The bonds are to be used before DATE .","To establish that ORG bonds are issued by the branches of ORG :","- to all producers who sold standard products to the ORG DATE and DATE ... in an amount equivalent to PERCENT of the value of the products sold ...","...","ORG is to submit to ORG requests for those goods in high demand which are to be sold on production of the ORG bonds , and organise their sale , on advance orders by citizens and organisations , at regional fairs and exhibitions and in specialised trade outlets . ORG is to deliver goods to the consumers on the basis of the ORG bonds no later than DATE [ sic ] . In DATE orders under the said bonds will be executed within DATE . \u201d","On DATE ORG issued ORG no . CARDINAL , intended to compensate the owners of ORG bonds for an increase in retail prices . It resolved , in particular :","\u201c CARDINAL . To establish that passenger cars and other consumer goods which are made available to citizens as a reward for the grain and other agricultural produce that was sold to the ORG in DATE and DATE are to be sold at the retail prices that prevailed DATE ...","To extend the period of validity of the ORG bonds until DATE ... \u201d","On DATE the Government adopted Resolution no . ORG . It required the NORP ministries to allocate substantial amounts for the purchase of goods that were to be sold on production of the ORG bonds . It further provided :","\u201c CARDINAL . ORG , in cooperation with ORG , shall define , within DATE , the list of goods intended for the implementation of the ORG bonds ...","ORG of ORG shall determine the increase in prices of domestic and imported goods since DATE ... The price difference shall be reimbursed from the NORP budget .","The Ministry of Agriculture shall carry out an inventory of bonds held by agricultural enterprises and organisations and private individuals as on DATE .","ORG and ORG shall , within DATE , lay down the procedure for the buyout of the ORG bonds through the branches of ORG . It is to be taken into account that these bonds may be either used for purchasing goods or bought out by the ORG with a coefficient of CARDINAL . \u201d","On DATE the Government approved Regulation no . CARDINAL on State commodity bonds , which provided as follows :","\u201c With a view to redeeming the ORG commodity bonds and preventing accrual of the ORG 's liability to compensate for price differences , the Government of GPE resolves :","ORG of GPE \u2013","\u2013 will buy out ... the ORG bonds at a price equivalent to their nominal value multiplied by CARDINAL and credit that amount into a bank account ... \u201d","On DATE LAW ( no . CARDINAL-FZ , \u0424\u0417 \u00ab \u041e \u0433\u043e\u0441\u0443\u0434\u0430\u0440\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u0445 \u0434\u043e\u043b\u0433\u043e\u0432\u044b\u0445 \u0442\u043e\u0432\u0430\u0440\u043d\u044b\u0445 \u043e\u0431\u044f\u0437\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0430\u0445 ORG ) was enacted . It provided that ORG commodity bonds , including ORG bonds , would be recognised as part of the internal ORG debt of GPE ( section CARDINAL ) . The obligations arising out of the commodity bonds would be settled in accordance with the general principles of LAW , the limitation period being set at DATE ( section CARDINAL ) . The original wording of section CARDINAL provided :","\u201c The Government of the NORP Federation shall draft , in DATE , ORG for settlement of the internal debt of GPE described in CARDINAL , based on the principle of full compensation . The ORG shall provide for redemption terms ... convenient for citizens , including , according to their choice : provision of goods designated in ... the ORG bonds issued to agricultural suppliers ... ; redemption of ORG commodity bonds at consumer prices prevailing at the time of the redemption ... ; conversion of the debt into ORG securities ... \u201d","On DATE the Government adopted ORG no . CARDINAL , by which it annulled Regulation no . CARDINAL and instructed ORG to redeem the ORG commodity bonds within the amounts allocated for that purpose in the federal budget .","DATE . On DATE , section CARDINAL of LAW was amended to provide that the procedure for implementation of the ORG 's obligations to holders of the ORG bonds would be determined in a special federal law .","On DATE the Government adopted the ORG for settlement of the internal debt of GPE . Paragraph CARDINAL of the ORG provided that the procedure for payments in respect of the ORG bonds would be determined in a special federal law .","In DATE the application of LAW was for the first time suspended in the part concerning the ORG bonds . The suspension clause was maintained in DATE ( Federal Law no . CARDINAL of DATE ; no . CARDINAL of DATE ; no . CARDINAL of DATE ; no . CARDINAL of DATE ; no . CARDINAL of DATE ; and no . CARDINAL of DATE ) .","On DATE a federal law governing the procedure for the buyout of the ORG bonds was adopted ( no . CARDINAL DATE \u201c the LAW \u201d ) . It established that holders of the bonds would be paid , in the period DATE and DATE , an amount equivalent to the nominal value of the bonds divided by CARDINAL ( section CARDINAL ) . The law also amended LAW by removing the reference to the ORG bonds from section CARDINAL of that Act .","On DATE the Government issued ORG no . CARDINAL , setting out the detailed procedure for payments in exchange for the production of ORG bonds .","On DATE the ORG gave a decision on an application lodged by ORG ( GPE , which had claimed that the amendments of DATE ( see above ) had indefinitely delayed the implementation of the ORG 's obligations towards the bearers of the ORG bonds . ORG declared the application inadmissible for the following reasons :","\u201c In its [ previous decisions ] ORG has already determined that a unilateral change in the scope of the ORG 's obligations towards individuals , including the obligation to sell goods in exchange for commodity bonds , is impermissible . This does not exclude , however , the possibility of imposing restrictions on the property rights of individuals \u2013 in an established form and within the constitutional limits \u2013 in the matter of ORG obligations , which is compatible with LAW .","In particular , it follows from the case - law of ORG ... that implementation of the rights and lawful interests of individual citizens or groups of citizens should not excessively and adversely affect the budgetary resources allocated for satisfying the rights and interests of society as a whole . This principle becomes particularly relevant in a situation where budgetary resources are insufficient to resolve many social problems relating to the exercise of the rights to life and personal dignity . It follows that the balance between the rights and lawful interests of the individuals who act as creditors for the ORG in property relationships , on the one hand , and everyone else , on the other hand , may , in principle , be struck only in the form of an act of ORG .","Hence , given that the legislature may restrict individual rights and freedoms ( including property rights ) for the purpose of the protection of the rights and lawful interests of others , a review of the federal law amending section CARDINAL of LAW by ORG would imply an assessment of the financial and economic justification for the legislative decision on the procedure for settlement of ORG commodity bonds , which ... falls outside the jurisdiction of ORG .","When examining claims relating to settlement of the ORG commodity bonds , courts of general jurisdiction have the right and duty to interpret the legislative provisions in the light of the interests of the individual ( Articles CARDINAL and CARDINAL of the LAW ) and be guided , in particular , by LAW , which establishes that ORG commodity bonds are to be settled in an appropriate form and in accordance with LAW of GPE . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60856","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2003,"docname":"CASE OF ZIACIK v. SLOVAKIA","importance":4,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Nicolas Bratza","text":["On DATE the applicant was accused of an offence of attempting to sell explosives .","On DATE he was arrested in the context of the criminal proceedings . On DATE a judge ordered his release .","On DATE the Minister of the ORG dismissed the applicant from the police . The decision referred to the conclusions reached by ORG according to which the applicant had offered to sell explosives , and that on DATE he had driven a car in which the police later found explosives .","On DATE an expert opinion on the applicant \u2019s mental health was submitted to ORG in the context of the criminal proceedings .","On DATE ORG indicted the applicant , charging him with CARDINAL offences of involvement in the unauthorised transport of explosives before ORG .","On DATE the case was assigned to a different judge as the judge to whom the case had originally fallen to be examined was an acquaintance of the applicant .","On DATE ORG judge requested ORG to submit decisions concerning one of the accused .","On DATE ORG returned the case to the public prosecutor for further investigation . The prosecutor appealed on DATE . On CARDINAL DATE the case was submitted to ORG . On DATE the latter quashed ORG decision of DATE and ordered the first instance court to proceed with the case . The case file was returned to ORG on DATE .","A hearing scheduled for DATE had to be adjourned as CARDINAL of the accused ORG lawyers was absent .","Hearings were held on DATE , on DATE , on DATE and on DATE . The case was adjourned as it was necessary to hear further witnesses .","On DATE and on DATE the case had to be adjourned as witnesses failed to appear .","On DATE ORG heard CARDINAL witnesses . The case was adjourned as the court considered it necessary to hear another witness in respect of whom an arrest warrant had been issued . On CARDINAL and CARDINAL DATE and on DATE ORG asked the police to establish the whereabouts of the witness .","On DATE the president of ORG informed the applicant that the case had not been proceeded with in DATE as the presiding judge was ill .","On DATE ORG acquitted the applicant . On DATE the public prosecutor appealed . CARDINAL of the applicant \u2019s co - accused also filed an appeal . The case file was transmitted to ORG on DATE . On DATE CARDINAL of the accused submitted observations on the public prosecutor \u2019s appeal .","A hearing before ORG scheduled for DATE was cancelled .","On DATE ORG dismissed the appeals . The decision became final on DATE .","Article CARDINAL ( CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .","As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :","\u201c CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .","When ORG finds that a complaint is justified , it shall deliver a decision stating that a person \u2019s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .","NORP In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . \u201d ...","The text of the above amendment was adopted on DATE and published in LAW .","The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act no . CARDINAL\/CARDINAL ( LAW ) , as amended with effect from DATE .","After that date ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred . ORG has held that it can examine complaints about delays in proceedings only when the proceedings complained of were pending at the moment when the constitutional complaint was filed .","Section CARDINAL ( CARDINAL ) of Act No . TIME on the liability of the ORG for damage caused by a ORG organ \u2019s decision or by its erroneous official action ( ORG o zodpovednosti za \u0161kodu sp\u00f4soben\u00fa rozhodnut\u00edm org\u00e1nu \u0161t\u00e1tu alebo jeho nespr\u00e1vnym \u00faradn\u00fdm postupom \u2013 \u201c LAW \u201d ) renders the ORG liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions . A claim for compensation under this provision can only be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the erroneous action in question .","Under the domestic courts\u2019 practice , LAW of DATE does not allow for compensation for non - pecuniary damage unless it is related to deterioration of a person \u2019s health . In such cases the amount of compensation is governed by Regulation No . CARDINAL ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67816","languageisocode":"ENG","respondent":"ROU","branch":"GRANDCHAMBER","date":2004,"docname":"CASE OF CUMPANA AND MAZARE v. ROMANIA","importance":1,"conclusion":"Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicants , PERSON and PERSON , were born in DATE and DATE respectively and live in GPE .","NORP In decision no . CARDINAL of DATE , ORG , implementing government decision no . CARDINAL of DATE , introduced a fine for drivers of illegally parked vehicles and entrusted the task of removing , towing away and impounding such vehicles to ORG , a company based in GPE .","By order no . CARDINAL of DATE , the mayor of ORG authorised a private company , PERSON , to perform the services of removing , towing away and impounding illegally parked vehicles .","A partnership contract was signed on DATE by the city authorities and the company in question , the signatories on behalf of the authorities being the deputy mayor ( hereinafter \u201c FAC \u201d ) and the council \u2019s legal expert ( \u201c PERSON \u201d ) . In a letter of DATE , the mayor of NORP requested PERSON to cease its activities under the contract and informed it that it was considering terminating the contract .","On DATE the applicants , who are journalists by profession , published an article in the local newspaper Telegraf , of which the second applicant was the editor , with the headline \u201c Former Deputy Mayor [ ORG ] and serving judge [ R.M. ] responsible for series of offences in GPE scam \u201d . The names of the former deputy mayor and of the city council \u2019s former legal expert , PERSON , who had subsequently become a judge , were printed in full in the headline and in the article itself .","The article , which appeared under the byline of both applicants , was worded as follows :","\u201c In decision no . CARDINAL of DATE ORG entrusted a commercial company , ORG . , with the task of impounding illegally parked vehicles or trailers ... It was the duty of the city authorities\u2019 specialist departments to lay down the practical arrangements for implementing the council \u2019s decision . But things did not turn out that way . DATE after decision no . CARDINAL was adopted , the city authorities , knowingly breaching the provisions of PERSON no . CARDINAL\/CARDINAL , illegally concluded a partnership contract ... with ORG . , a company having no connection with the CARDINAL initially chosen . It is worth noting , however , that the contract in question was signed by the deputy mayor , [ FAC ] , in place of the mayor , ... and by a certain [ M. ] instead of the legal expert [ M.T. ] .","By what miracle did PERSON enter into a partnership with the city authorities when , in decision no . CARDINAL of DATE , the city council had authorised ORG . to provide a straightforward service ? What is striking is that there is no evidence that ORG agreed to give up the task of towing away illegally parked vehicles ! ... The crook [ D.M. ] ( the former deputy mayor , now a lawyer ) granted PERSON \u2019s irresponsible employees the power to decide when a vehicle is illegally parked \u2013 in other words , to treat citizens and their property with contempt . What form did the fraud take ? Sections CARDINAL and CARDINAL of Law no . CARDINAL\/CARDINAL provide that no partnership contract with a commercial company may be signed without a prior decision by the local council , adopted by a CARDINAL - thirds\u2019 majority of the total number of councillors . Before a contract is signed , it must be referred to all the local council \u2019s specialist committees for their opinion ... The contract with PERSON was negotiated and signed illegally , as the signatories based it on the decision [ of DATE ] , which , as has already been shown , referred to a different company without envisaging any other partnership .","Given that the city authorities had already signed CARDINAL other contracts before that CARDINAL , the signatories can not claim ignorance of the law , but only an intentional breach of it ! And because any intentional breach of the law pursues an end in itself \u2013 generally that of securing material advantages \u2013 it is clear that in this case the former deputy mayor , a lawyer by profession , received backhanders from the partner company and bribed subordinates , including [ ORG ] , or forced them to break the law .","ORG detected this blatant fraud , which has generated considerable profits for the briber ( PERSON ) ... The offending company [ ORG ] has never shown that it had adequate means to impound illegally parked vehicles . This explains why large numbers of privately owned vehicles have been damaged and , as a result , CARDINAL of complaints have been made on the subject .","Furthermore , the alleged partnership contract was valid for DATE , until DATE . From that date [ GPE ] no longer had any right to interfere with ORG private property ! It has nevertheless continued to tow vehicles away and illegally collect money ... It is incomprehensible how the police could have provided it with assistance for DATE .","Let us briefly consider the conduct of the council \u2019s former legal expert , [ ORG ] , who is now a judge . Either she was ignorant of the law when she signed the contract , in which case it is hard to understand how she can subsequently have been appointed as a judge ( delivering justice on the basis of the same laws which she does not know ) , or she accepted bribes and may continue to do so in future ! It is no surprise that the same judge should have been investigated by ORG for a further illegal act , also committed while she was at the city council ( as we reported at the time ) . Ironically , the ORG \u2019s president did not take any action against her on the ground that the sum received was not ... large enough .","Apparently becoming aware that the matter was likely to be uncovered , the city authorities\u2019 coordination department ... notified PERSON in writing of the possibility of the contract being terminated on the following grounds : ... \u2018 You have not supplied any documents showing that you have purchased the platform - type equipment necessary for carrying out the activity ORG ( as stipulated in clause CARDINAL of the contract ... ) . In the same letter the city authorities informed PERSON : \u2018 As you have not proved that you have the appropriate equipment , we would assess your contribution to the partnership at the level of your company \u2019s capital , that is CARDINAL lei . Your share in the partnership \u2019s net income will have to be recalculated in relation to the parties\u2019 contributions.\u2019","Facts are facts , and the documents in our possession speak for themselves of the illegal Vinalex scam . \u201d","The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away , photocopies of extracts from the partnership contract and from ORG decision of DATE , and certain passages of PERSON no . CARDINAL\/CARDINAL concerning the responsibilities and powers of mayors , prefects and city and county councils .","The article was also accompanied by a cartoon showing a man and a woman arm in arm , carrying a bag marked \u201c Vinalex \u201d which was full of banknotes . The CARDINAL characters were depicted as saying to each other :","\u201c Hey , [ NORP ] [ diminutive form of PERSON first name ] , you \u2019ve done a good job there ! When I was deputy mayor we made quite a bit , enough to go to GPE ... \u201d","\u201c [ NORP ] [ diminutive form of the former deputy mayor \u2019s first name ] , if you become a lawyer , I \u2019ll become a judge and we \u2019ll have enough to travel round the world ... \u201d","In DATE ORG of ORG examined a report submitted on DATE by several auditors who had conducted a review of ORG budget for DATE and had made the following findings :","( a ) NORP The city council \u2019s decision of DATE to award ORG the contract for towing away illegally parked vehicles had not been justified by any bid submitted in writing by the company or by the company \u2019s aims as set forth in its articles of association .","( b ) NORP The city council had not given its opinion on the partnership contract signed between the city authorities and PERSON , and no expert valuation of ORG \u2019s assets had been carried out or submitted to the council for approval , contrary to the provisions of ORG ( Law no . CARDINAL\/CARDINAL ) .","( c ) The distribution of the proceeds among the parties as agreed in the contract PERCENT to ORG and PERCENT to the city council \u2013 had not corresponded to the ORG respective contributions on the date on which the contract had been signed PERCENT by the city council and PERCENT by DATE resulting in a loss of income for the city council .","ORG considered it necessary to urge the mayor of GPE , as the official responsible for authorising appropriations , to \u201c ensure compliance with the law \u201d as regards the parties\u2019 obligations under the contract and to be more efficient when entering into such partnerships with private entities in future . A formal decision to that effect was adopted on DATE by the head of the department .","The applicants produced to the ORG a report dated DATE by the same ORG auditors , which likewise referred to the irregularities described in paragraph CARDINAL above in the signing of the partnership contract between the city authorities and PERSON , and indicated that the contract should be terminated . The applicants did not mention the existence of such a report during the criminal proceedings instituted against them following the publication of the impugned newspaper article .","On DATE , following the publication of the article , PERSON instituted proceedings against the applicants in ORG for insult and defamation , offences under LAW and CARDINAL respectively of MONEY . She complained , in particular , of the cartoon accompanying the article , which had depicted her as a \u201c woman in a miniskirt , on the arm of a man with a bag full of money and with certain intimate parts of her body emphasised as a sign of derision \u201d . She submitted that the article , the cartoon and the dialogue between the characters had led readers to believe that she had had intimate relations with ORG , and pointed out that she and the former deputy mayor were both married .","At a hearing on CARDINAL DATE , the court adjourned the case as the applicants were not present and , scheduling a further hearing for DATE , directed that they should be brought before the court on that date .","On DATE the second applicant stated at the hearing that , as editor , he assumed full responsibility for what had been published in the newspaper . He explained that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the claimant \u2019s reputation . In reply to a question from the court , he admitted having known that , by order of the mayor of GPE , PERSON had been authorised to tow away illegally parked vehicles . He stated , however , that he had not thought it necessary to publish that information . Lastly , he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article in her favour provided that she could prove that what he had published was untrue .","On DATE the applicants applied to have the case transferred to a court in another county . They also requested an adjournment of the proceedings , arguing that because the claimant was a judge it was impossible for them to find a member of ORG who would agree to represent them .","On an unspecified date GPE , in reply to a question from the court , attested that the applicants had not met with a refusal on the part of all of its members and that , in any event , the matter had not been referred to its executive .","On DATE and DATE the court adjourned the case as the applicants were not present .","In an interlocutory decision of DATE , ORG ordered the referral of the case to ORG of First Instance .","On DATE the case was entered on that court \u2019s list of cases for hearing . Public hearings were held on DATE and on DATE , DATE , DATE , DATE and CARDINAL DATE .","On DATE and CARDINAL DATE the applicants did not attend the hearings , although they had been duly summoned . The court summoned them to appear at the hearings on DATE and DATE . The applicants did not comply with the summonses .","At the hearings on DATE and DATE , representatives of ORG applied for an adjournment on behalf of the applicants , who were not present . The court allowed the application .","On DATE a member of ORG , GPE , agreed to represent the applicants .","At the hearing on DATE in the morning , GPE asked the court to consider the case after TIME The court granted his request . However , when it sat to examine the case at TIME and , subsequently , at TIME it noted that neither the applicants nor their counsel were present in the courtroom . It accordingly adjourned the case until CARDINAL DATE .","At the hearing on CARDINAL DATE the court reserved judgment , after noting that neither the applicants \u2013 despite their having been duly summoned DATE nor their counsel had appeared . In a judgment delivered on DATE , the court found the applicants guilty of insult and defamation DATE offences under ORG and CARDINAL respectively of MONEY . It sentenced them to CARDINAL months\u2019 imprisonment for insult and CARDINAL months\u2019 imprisonment for defamation , and ordered them both to serve the heavier sentence , namely CARDINAL months\u2019 immediate imprisonment . As well as this main penalty , the court imposed the secondary penalty of disqualification from exercising all the civil rights referred to in LAW ( see paragraph QUANTITY below ) .","It also prohibited the applicants from working as journalists for DATE after serving their prison sentences , a security measure provided for in the first paragraph of LAW ( see paragraph CARDINAL below ) .","Lastly , it ordered them to pay PERSON CARDINAL,CARDINAL,CARDINAL NORP lei ( ROL ) ( equivalent to MONEY at the exchange rate applicable at the material time ) for non - pecuniary damage .","In stating its reasons for the judgment , the court observed , firstly :","\u201c The ORG notes that the injured party has always been present , both in ORG and in FAC of First Instance , whereas the defendants have generally been absent without justification , despite having been lawfully summoned . In support of her prior complaint , the injured party , PERSON , sought leave to produce documentary evidence . PERSON [ R.M. ] submitted a copy of the DATE edition of the local newspaper ORG , containing the article referred to in her complaint and the cartoon in which she was ridiculed .","The ORG notes that the defendants and the party liable to pay damages , despite being lawfully summoned , have not attended any hearings , and that only the injured party has been present .","The ORG notes that the defendants PERSON and PERSON were informed of the charges against them and of the hearing dates , and that they were assisted by a lawyer of their choosing ( who asked the ORG first for an adjournment and subsequently for consideration of the case to be postponed until the second sitting , after TIME ) .","The ORG observes that the defendant PERSON gave evidence to ORG at a public hearing on DATE , and notes the following from his testimony : the defendant considered that it was not compulsory to have studied at journalism college to work as a journalist ; he refused to reply when asked whether he had had access to any other documents on which ORG decision no . CARDINAL had been based ; he understood by \u2018 series of offences\u2019 the fact of committing several offences ; he understood by \u2018 a multiple breach of the criminal law\u2019 the commission of several offences ; he considered that the injured party , in signing the contract in her capacity as a legal expert at the city council , had infringed a number of the provisions of Law no . CARDINAL\/CARDINAL ; he pointed out that he could not give the precise legal classification of the offences committed by the injured party , as that did not come within his sphere of competence ; he stated that he had said everything there had been to say about the injured party in the newspaper article ; he submitted that cartoons were used everywhere and maintained that he had not ( through the cartoon ) damaged anybody \u2019s reputation ( specifically , that of the injured party ) .","[ The ORG ] notes that the defendant PERSON stated that he assumed full responsibility for everything published in his newspaper , as its editor ; ... that he stated that he was aware of the constitutional provisions on the right of journalists to impart information to the public ; that he had read the government decision in its entirety but had not published it for lack of space ; that he also stated that he had read the full text of the partnership contract entered into by the city authorities and signed by the injured party , PERSON , but that he did not know whether the government decision had referred to partnership contracts ; ... that the defendant had been aware that ORG had been authorised by order of the mayor of GPE to provide the service of towing away illegally parked vehicles , but that he had not thought it necessary to publish that information in the newspaper ; and , lastly , that he stated : \u2018 In view of the seriousness of the offences committed , I do not think that it was necessary to discuss the matter with the injured party beforehand . Should any documents prove that my statements are unfounded , I am prepared to publish an article in the injured party \u2019s favour.\u2019 \u201d","With regard to the documentary evidence on which the injured party intended to rely in support of her allegations , the court observed :","\u201c Apart from the article published in ORG , the injured party , PERSON , produced ORG decision no . DATE adopted in accordance with government decision no . CARDINAL of DATE in which it was decided to tow away illegally parked vehicles ; order no . CARDINAL of DATE by the mayor of GPE ... authorising the Vinalex company to remove , tow away and impound illegally parked vehicles ( \u2018 The conditions for the performance of these services shall be laid down in the partnership contract to be drawn up\u2019 ) ; government decision no . CARDINAL of DATE , in which mayors were empowered to order the removal , towing away and impounding of illegally parked vehicles by duly authorised specialist companies ; and order no . CARDINAL of DATE by the mayor of ORG , in which PERSON was authorised to provide such services . \u201d","With regard more particularly to the article and cartoon in issue , the court held :","\u201c ... the article , by the defendants PERSON and PERSON , was directed at the injured party , tarnishing her honour , dignity and public image and injuring her own self - esteem by means of the ( written ) accusations conveyed through signs and symbols targeted specifically at her .","The ORG considers that these acts took place , that they are punishable under the criminal law , and that they posed a danger to society , not so much because of their practical effect ( physical distortion of outward reality ) but above all because of the psycho - social consequences resulting from the provision of misleading or incorrect information to the public , giving rise to inaccurate judgments about facts and individuals , establishing a false scale of values in view of the role and public impact of the media , and causing psychological trauma to the injured party . In making its assessment , the ORG has had regard to the particular status of the parties to the proceedings : the injured party , PERSON , being a lawyer and a representative of the judiciary , and the defendants , Mr PERSON and PERSON , being representatives of the media .","The ORG notes that the defendant PERSON , while realising the seriousness of the acts he had committed , irresponsibly stated that he had been \u2018 aware of the fact that PERSON had been authorised by order of the mayor , but did not consider it necessary to publish that order ( as well)\u2019 ...","The ORG considers that publication of the article in the newspaper can not have been justified by a \u2018 legitimate interest\u2019 in that it was not based on actual facts and the provision of accurate information to the public . It concludes that the defendants ... \u2018 ORG the content of LAW : \u2018 Freedom of expression shall not be prejudicial to a person \u2019s dignity , honour and private life or to the right to one \u2019s own GPE , and of LAW : \u2018 Public and private media shall be required to provide the public with accurate information.\u2019","It follows from the written submissions filed by the injured party ... that it was always her wish that the criminal proceedings be terminated by a friendly settlement , provided that the defendants agreed to retract the allegations made in the article .","The ORG notes that the injured party is a public figure and that , following the publication of the article , her superiors and the authority above them asked her to explain herself regarding the trial , particularly in view of the fact that she was due to take the professional examination to obtain permanent status . \u201d","On an unspecified date the applicants appealed against the first - instance judgment of CARDINAL DATE .","At a hearing on DATE , the ORG reserved judgment , having noted that the case was ready for decision and that the applicants had not appeared in court , despite having been duly summoned , and had not stated any grounds for their appeal .","In a judgment of CARDINAL DATE , the court , after examining all the aspects of the case against the applicants , as required by LAW , upheld the first - instance judgment , finding it to have been correct . ORG judgment , sent to the archives on DATE , was final and binding and no ordinary appeal lay against it .","On DATE the Procurator - General applied to ORG to have the judgments of CARDINAL DATE and DATE quashed . He submitted the following arguments .","( a ) The courts\u2019 legal classification of the facts had been incorrect . Pointing out that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of certain city council officials , he accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in LAW .","( b ) The amount the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified .","( c ) Lastly , the requirements of the first paragraph of LAW , by which the courts could prohibit persons who had committed unlawful acts from practising a particular profession on account of their incompetence , lack of training or any other ground making them unfit to practise the profession , were not satisfied in the applicants\u2019 case , as there was no unequivocal proof that the applicants were incompetent to continue working as journalists or that their doing so entailed a potential danger .","In a final judgment of DATE , ORG dismissed the Procurator - General \u2019s application as being manifestly ill - founded , for the following reasons :","\u201c It has been established from the evidence adduced in the present case that on DATE the accused , PERSON and PERSON , published an article in the NORP newspaper Telegraf entitled \u2018 Former Deputy Mayor [ ORG ] and serving judge [ R.M. ] responsible for series of offences in PERSON , in which it was asserted that in DATE , while she was employed as a legal expert at ORG , the injured party , PERSON [ R.M. ] , had been involved in fraudulent activities on the part of a commercial company , ORG .","ORG further notes that , alongside the above - mentioned article , the accused published a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money on his back , and that this was likely to tarnish the injured party \u2019s honour , dignity and public image .","It follows that in publishing the article in ORG , the accused attributed specific acts to the injured party which , had their allegations been made out , would have rendered her criminally liable ; the CARDINAL lower courts were therefore correct in finding the accused guilty of defamation under LAW .","The fact that the accused published alongside the above - mentioned article a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money , in such a way as to tarnish her honour and reputation , constitutes the offence of insult as defined in LAW ... \u201d","With regard to the amount which the applicants had been ordered to pay in damages , ORG held :","\u201c ... the requirement for the accused to pay CARDINAL lei for non - pecuniary damage was justified , since it is beyond dispute that in publishing the article on DATE in a mass - circulation newspaper , the accused seriously offended the dignity and honour of the injured party . \u201d","ORG held , lastly , in relation to the alleged unlawfulness of the temporary prohibition on the applicants\u2019 working as journalists :","\u201c ... since the application of security measures in circumstances other than those provided for by law does not feature on the exhaustive list of cases in which the law permits the Procurator - General to apply to have a decision quashed , it can not form a legal basis for quashing the judgments in issue . \u201d","The applicants did not serve the prison sentence they had received in the judgment of DATE , since immediately after the judgment had been delivered the Procurator - General suspended its execution for DATE by virtue of LAW ( see paragraph CARDINAL in fine below ) .","In a letter of DATE , the Procurator - General at ORG informed the applicants that he had extended the stay of execution until DATE .","On DATE the applicants were granted a presidential pardon dispensing them from having to serve their prison sentence . By virtue of Article CARDINAL of LAW , the pardon also waived their secondary penalty of disqualification from exercising their civil rights ( see paragraph DATE in fine below ) .","It appears from the first applicant \u2019s employment record ( cartea de munc\u0103 ) , of which he submitted a copy to the ORG , that , following ORG judgment of CARDINAL DATE :","( a ) he continued to work for ORG as editor of the \u201c Events \u201d section until DATE , when he was transferred for administrative reasons to the C. company , occupying the same position and receiving the same salary as before ;","( b ) while working for C. , he was awarded a pay rise ;","( c ) he ceased to work for C. on DATE on account of staff cutbacks by his employer , a ground for dismissal provided for in LAW ( a ) of LAW as worded at the material time ;","( d ) thereafter , he was not gainfully employed until DATE , when he was recruited on a permanent contract by the ORG company as deputy editor .","Following the final and binding judgment of CARDINAL DATE , the second applicant continued to work as editor of ORG , as indicated in a letter he sent to ORG on DATE .","DATE and DATE , while he was a member of the NORP parliament , the sum of ROL CARDINAL,CARDINAL,CARDINAL was deducted from his parliamentary allowance and transferred to PERSON bank account , pursuant to ORG of First Instance \u2019s judgment of CARDINAL DATE ( see paragraph CARDINAL in fine above ) .","On an unspecified date after that judgment , he was elected mayor of ORG , a position he still holds .","At the material time the relevant provisions were worded as follows :","\u201c Anyone who tarnishes the reputation or honour of another through words , gestures or any other means shall be liable to imprisonment for DATE or to a fine . \u201d","\u201c Anyone who makes any statement or allegation in public concerning a particular person which , if true , would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public opprobrium shall be liable to imprisonment for DATE or to a fine . \u201d","In Resolution no . DATE of DATE on the honouring of obligations and commitments by GPE , ORG of ORG observed that ORG and CARDINAL of LAW were unacceptable and seriously compromised the exercise of fundamental freedoms , in particular the freedom of the press . The ORG therefore called on the NORP authorities to amend those provisions without delay .","Following a process of legislative reform , LAW ( Law no . CARDINAL of DATE ) provides that the offence of defamation is punishable solely by a fine ( LAW ) and no longer classifies insult as a criminal offence . These legislative amendments will come into force on DATE .","The relevant provisions are worded as follows :","\u201c Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty :","( a ) the right to vote and to be elected to bodies of a public authority or to public elective office ;","( b ) the right to occupy a position entailing the exercise of ORG authority ;","( c ) the right to perform a duty or practise a profession or activity by means of which the convicted person carried out the offence ;","( d ) NORP parental rights ;","( e ) the right to act as a child \u2019s guardian or statutory representative . \u201d","\u201c The secondary penalty shall consist in disqualification from exercising all the rights listed in LAW .","A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ... \u201d","The relevant provision is worded as follows :","\u201c Anyone who has committed an [ unlawful ] act through incompetence , lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or activity may be prohibited from performing those duties or practising that profession or activity . Such a measure may be revoked on request after DATE if the grounds on which it was imposed are no longer valid .","... \u201d","The relevant provisions are worded as follows :","\u201c A pardon shall have the effect of waiving the execution of a sentence . ... A pardon shall have no effect on security measures or educational measures . \u201d","\u201c A person sentenced to a term of imprisonment of DATE shall be legally rehabilitated if he does not commit any further offences for DATE . \u201d","The relevant provisions are worded as follows :","\u201c The Procurator - General may , of his own motion or on an application by the Minister of ORG , apply to ORG for any final decision to be quashed . \u201d","\u201c An application to have a final conviction ... quashed may be made :","I. ...","...","where the penalties imposed fell outside the limits prescribed by law ;","...","where the offence was incorrectly classified in law ... \u201d","\u201c Before applying to have a decision quashed , the Procurator - General may order a stay of its execution . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60421","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2002,"docname":"CASE OF ANGELOPOULOS v. GREECE","importance":4,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Fran\u00e7oise Tulkens","text":["The applicants are the co - owners of a plot of land in GPE . Adjacent to their plot , but separated by a road , there are CARDINAL plots of land owned by a co - operative of civil servants of ORG , Mr M and Mr Y respectively . On DATE an area comprising the CARDINAL plots of land in question was included in the town plan . The applicants\u2019 plot was not . In DATE a decision drawing the exact limits of the area covered by the town plan was issued .","On DATE the applicants obtained a permit for the reconstruction of a house on their plot of land .","On DATE the ORG inspector requested the authorities to revoke the applicants\u2019 reconstruction permit on the ground that their plot of land was in a forest area . On DATE the first applicant lodged with ORG an application for judicial review of the ORG inspector \u2019s request .","On DATE the first applicant lodged with ORG an application for judicial review of a series of acts in essence preparing the modification of the town plan of CARDINAL DATE .","On DATE the authorities proposed a modification of the town plan . The applicants objected .","On DATE the authorities informed the applicants that they were not entitled to compensation for the expropriation of part of their plot of land that would result from the DATE modification of the town plan . As a result , the expropriation in question needed not be revoked .","On DATE the prefect decided that the applicants\u2019 plot of land was part of an area that should be turned back into a forest .","On DATE the applicants applied to ORG for judicial review of the refusal of the authorities to revoke the expropriation plan . The proceedings are still pending .","On DATE the prefect issued a second decision to the effect that the applicants\u2019 plot of land was part of an area that should be turned back into a forest .","On DATE the applicants applied to ORG for judicial review of the prefect \u2019s decision of CARDINAL DATE . The proceedings are still pending .","On DATE the applicants applied for judicial review of the prefect \u2019s decision of DATE . The proceedings are still pending .","On DATE the head of the district ( periferiarhis ) issued a decision confirming the decisions of DATE and CARDINAL DATE of the prefect . On DATE the applicants applied to ORG for judicial review of this decision . The proceedings are still pending .","On DATE the applicants intervened in the proceedings instituted in ORG by the co - operative against the ORG inspector .","On DATE ORG at the request of the minister examined a draft decree with a new proposed modification of the town plan . It found it to be illegal .","On CARDINAL DATE Y obtained a new building permit . On DATE the applicants applied to ORG for judicial review of the relevant decision . The proceedings are still pending .","On DATE the first applicant submitted additional observations for the judicial review of the modification of the town plan . ORG fixed the date of the hearing for DATE , but on that date it decided to adjourn the case until DATE and then until DATE and DATE . On DATE the applicant submitted fresh observations whereby he declared that he also challenged another act , LAW which approved the modification of the town plan . Moreover , the first applicant rebutted the arguments of the cooperative ( which had intervened in the proceedings in favour of the ORG on DATE ) and submitted CARDINAL new documents for consideration by ORG .","As a result , the hearing was adjourned again until DATE and then until DATE , DATE , CARDINAL DATE and DATE . On DATE and again on DATE the applicant submitted additional observations and evidence . On DATE he challenged the reporting judge and another judge of the bench of ORG and thus the hearing was adjourned until DATE . On that date ORG dismissed the challenge .","On DATE , the first applicant submitted further observations and further evidence .","On DATE ORG rejected the first applicant \u2019s application ( judgment no . DATE ) on the ground that \u201c preparatory acts \u201d could not be challenged . The applicant received a copy of the judgment on CARDINAL DATE .","On DATE the applicant asked for the reopening of the proceedings concerning his application of DATE on the ground that ORG had not taken into consideration certain documents which had been missing from the file .","On DATE the President of ORG decided that the application would be heard on DATE . Thus ORG granted the applicant \u2019s request to join this application to the application which he had lodged with his wife on DATE . On DATE the applicant submitted observations in regard to this latter application . On DATE the case was adjourned until DATE . However , on DATE the reporting judge resigned and ORG adjourned the examination of the case until DATE . On that date a new reporting judge was appointed and the hearing fixed on DATE .","On DATE the applicants applied to ORG for judicial review of the refusal of the authorities to revoke the expropriation plan . A hearing was listed for DATE . On that date ORG adjourned the consideration of the case until DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE and DATE . According to the ORG , these adjournments were decided by ORG in agreement with the applicants who wanted ORG to consider first their application introduced on DATE .","On DATE the hearing was adjourned again because the reporting judge was on sabbatical leave . As a result , the presiding judge appointed another reporting judge and adjourned the consideration of the case until CARDINAL DATE .","In view of the new date of the hearing , the applicants submitted additional observations whereby they challenged CARDINAL more acts , in addition to those indicated in their application of DATE . Consequently , the hearing was adjourned until DATE , when ORG would examine the application made by the first applicant on DATE .","On DATE the case was struck off the list and returned to be heard by ORG , by virtue of article CARDINAL \u00a7 CARDINAL of Law no . CARDINAL .","When the Government submitted their observations to the ORG , the case file had not been transmitted to ORG because , on DATE , the applicants invited ORG to hold a hearing for both applications of DATE and DATE . The hearing was set down for DATE but was adjourned until DATE , in order for the applicant \u2019s request for a joint hearing with his applications of DATE and DATE to be satisfied ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106425","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF BEKSULTANOVA v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 13+2;Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and resides in the village of ORG in GPE . She is the mother of Mr PERSON , born in DATE .","In the applicant \u2019s submission her family members , including PERSON , were victims of continuing persecution on the part of the domestic authorities . In DATE PERSON even had to quit his job as a coach in ORG local sports centre . Furthermore , on several occasions ( the applicant did not furnish the exact dates ) servicemen of the federal forces allegedly burst into the applicant \u2019s house , searched it and intimidated the applicant and members of her family .","On DATE the prosecutor \u2019s office of ORG ( \u201c the district prosecutor \u2019s office \u201d ) opened a criminal case against ORG under LAW \u00a7 CARDINAL ( terrorism ) , CARDINAL \u00a7 CARDINAL ( participation in an illegal armed group ) , CARDINAL \u00a7 CARDINAL ( aggravated possession of weapons ) and CARDINAL ( assault on a law - enforcement officer ) of LAW ( \u201c CC \u201d ) . The case file was assigned the number CARDINAL . It appears that PERSON was put on a list of wanted persons in connection with those proceedings .","According to the applicant , PERSON denied the charges against him and intended to appear at the district prosecutor \u2019s office .","On DATE Mr GPE , an officer of the police special - purpose squad ( \u201c OMON \u201d ) , came to the applicant \u2019s house and asked PERSON to follow him to an unidentified destination \u201c to explain that [ PERSON ] was not implicated in any terrorist activities \u201d . The CARDINAL men got into GPE \u2019s vehicle , a VAZ-CARDINAL , and drove off . The applicant memorised only a sequence of CARDINAL figures from the car number plate , namely \u201c CARDINAL \u201d .","The following account of the events is based on the information allegedly obtained by the applicant from QUANTITY persons , CARDINAL of them being identified by her as \u201c a shepherd \u201d and another as \u201c a villager of ORG \u201d . The applicant did not indicate the names of those witnesses or furnish copies of their statements . In her submission , the witnesses did not wish to give their names because they feared reprisals .","According to the applicant , CARDINAL of the witnesses told her that at TIME on DATE he had seen a convoy of several armoured personnel carriers ( \u201c APCs \u201d ) and ORG vehicles stationed at a crossroads between CARDINAL villages , where CARDINAL of the roads led to ORG . There had been numerous servicemen near the vehicles . A VAZ-CARDINAL vehicle had approached the convoy . PERSON and GPE had got out of the vehicle and the servicemen had requested their identity papers . Having checked them , the servicemen had twisted ORG arms and had started beating him up . When he had fallen on the ground , the witness had heard several shots and had seen that PERSON was wounded in his thigh . Immediately thereafter an officer had approached PERSON and had shot him in the shoulder . After that the servicemen had put PERSON in an ORG and had driven off to an unknown destination . The servicemen had not done anything to GPE , who had got back inside his vehicle and had driven away . According to the applicant , the witness had not been able to hear everything which had occurred at the crossroads but had clearly seen what had been going on there .","On DATE , TIME after her son \u2019s abduction , the vehicle in which he had been placed by his abductors , was stationed at ORG of the ORG ( \u201c the ROVD \u201d ) .","The applicant learnt about the apprehension of PERSON from the relatives of GPE on DATE .","According to written statements by Zh . PERSON , PERSON , ORG , dated DATE and furnished by the applicant , those persons submitted that on DATE they had seen PERSON get inside a vehicle together with a man who introduced himself as GPE , an ORG officer . GPE had picked up PERSON at the applicant \u2019s house to accompany him to the law - enforcement authorities because the former wished to surrender in connection with the criminal charges against him . Zh . PERSON , PERSON , ORG stated that on DATE they had learnt that GPE had taken the applicant \u2019s son into an ambush to deliver him to the authorities .","The applicant has had no news of PERSON since DATE .","The Government submitted that the domestic proceedings had obtained no evidence that PERSON had been abducted by ORG agents .","On DATE the applicant complained in writing about the abduction of PERSON to various ORG bodies , including the President of ORG and Missing Persons with the President of GPE , the military prosecutor \u2019s office of ORG , the military prosecutor \u2019s office of ORG ( UGA ) , the Prosecutor of GPE and the district prosecutor \u2019s office . In those complaints she submitted that , at TIME on DATE , armed men who had been wearing camouflage uniforms and had arrived in several APCs , military ORG vehicles and a private vehicle , had stopped GPE \u2019s vehicle with plate no . \u201c CARDINAL \u201d and had taken away PERSON . The abduction had occurred at the crossroads between CARDINAL villages , where CARDINAL of the roads led to ORG . In her complaints the applicant also claimed that , according to GPE , as of DATE her son was still alive and was held in GPE .","On DATE the prosecutor \u2019s office of GPE ( \u201c the NORP prosecutor \u2019s office ) forwarded the applicant \u2019s complaint about the abduction of PERSON for examination to the district prosecutor \u2019s office .","On DATE ORG forwarded the applicant \u2019s complaint about \u201c the abduction of ORG by officers of the special - purpose ORG of the Interior \u201d to ORG .","On DATE the applicant re - submitted her complaint of CARDINAL October CARDINAL to the same ORG authorities .","On DATE the NORP prosecutor \u2019s office replied to the applicant that her complaint about the abduction of PERSON had been appended to case file no . DATE opened against him in DATE . She was also notified that PERSON had been put on a federal list of wanted persons and that measures aimed at establishing his whereabouts were under way .","On DATE the military prosecutor \u2019s office of ORG forwarded the applicant \u2019s complaint about the abduction of her son to the UGA military prosecutor \u2019s office and advised the applicant that she was to address all her queries to that body .","On DATE ORG of GPE notified the applicant that they had forwarded her complaint about the abduction of her son to the district prosecutor \u2019s office .","On DATE the prosecutor \u2019s office of military unit CARDINAL informed the applicant that they were verifying the information contained in her complaint about the abduction of her son and that they would notify her about their decision in due course .","On DATE ORG of ORG ( \u201c ORG of the ORG \u201d ) informed the applicant that they had forwarded her complaint about the abduction of PERSON to the district prosecutor \u2019s office for examination .","On DATE ORG of the ORG replied to the applicant \u2019s repeated complaint that on DATE they had not carried out any special operations in FAC . The letter also stated that the department officials had not arrested PERSON .","By a letter of CARDINAL DATE the prosecutor \u2019s office of military unit no . CARDINAL notified the applicant that their inquiry had not established the implication of servicemen of the federal forces in the abduction of PERSON . The letter also pointed out that the applicant \u2019s complaint about the apprehension of PERSON had been appended to case file no . DATE opened against him on DATE and in connection with which he had been put on the list of wanted persons . On DATE the preliminary investigation in case no . ORG had been adjourned owing to the fact that the whereabouts of PERSON remained unknown . The district prosecutor \u2019s office was taking investigative steps to establish his whereabouts with a view to prosecuting him for the crimes of which he was suspected .","On DATE the applicant \u2019s representatives wrote to the prosecutor of ORG , enquiring , among other things , whether the district prosecutor \u2019s office had launched an investigation into the abduction of PERSON and what steps it had taken to establish his whereabouts . They also requested that the applicant be provided access to the relevant documents .","On DATE the applicant \u2019s representatives complained to the NORP prosecutor \u2019s office that they had not received a reply to their letter of CARDINAL DATE . It appears that their repeated query was also left without reply .","On DATE the applicant \u2019s representatives wrote to the prosecutor of ORG and the NORP prosecutor \u2019s office , reiterating the questions raised in their letters dated DATE and CARDINAL DATE .","On DATE the NORP prosecutor \u2019s office replied to the applicant \u2019s representatives that PERSON had been put on the federal list of wanted persons in connection with criminal case no . DATE . The investigators of that criminal case had verified the applicant \u2019s version that her son had been abducted by unidentified persons on DATE . However , apart from the applicant \u2019s own statement , no objective evidence had been obtained to the effect that her son had , indeed , been abducted . At the same time , the investigators had sufficient reasons to believe that the applicant was deliberately complaining about the abduction of PERSON in order to shield him from the criminal responsibility for the crimes he had committed .","On DATE the applicant wrote to the head of the investigating department of the investigating committee with ORG in GPE . She reiterated the circumstances of her son \u2019s disappearance and requested to be informed whether the authorities had opened an investigation into his disappearance and what steps they had taken to elucidate it .","On DATE the Chief Military Prosecutor \u2019s Office replied to the applicant that they had forwarded her complaint about the abduction of her son to the military prosecutor \u2019s office of ORG ( \u201c the ORG prosecutor \u2019s office \u201d ) .","By a letter of CARDINAL DATE the district prosecutor \u2019s office informed the applicant \u2019s husband that they had received the complaint about the abduction of his son . The letter stated that PERSON was being searched for on suspicion of having committed a number of serious crimes , in connection with which criminal proceedings had been instituted against him . The authorities were carrying out unspecified measures to examine the submissions concerning ORG allegedly unlawful arrest .","The Government submitted that the domestic authorities had not opened a separate investigation into the disappearance of PERSON because he had been placed on a wanted list in connection with the criminal proceedings in case no . DATE instituted against him . All the applicant \u2019s submissions concerning his alleged abduction had been examined within the framework of the criminal proceedings in case no . ORG . The ORG refused to provide the ORG with a full copy of criminal case file no . DATE , without providing an explanation . The information provided by the ORG and contained in the documents submitted by them may be summarised as follows .","On DATE the district prosecutor \u2019s office instituted criminal proceedings against a number of persons , including PERSON , on suspicion of participation in illegal armed groups , assault on officers of lawenforcement authorities and possession of arms ( Articles CARDINAL , CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG ) . The decision stated , in particular , that on DATE officers of ORG police department had carried out an operation aimed at arresting members of illegal armed groups . In the course of the operation they had stopped a vehicle with PERSON , GPE and GPE inside . PERSON had opened fire on the police officers , had wounded CARDINAL of them and had been killed in the ensuing skirmish . The police officers had arrested GPE , whilst PERSON had managed to escape . The case file was assigned the number DATE .","On DATE a further criminal case was opened against PERSON and PERSON under LAW on suspicion of an armed assault on a police officer , who had been severely wounded . The case file was given the number CARDINAL .","On DATE investigators of the district prosecutor \u2019s office searched the applicant \u2019s home in connection with the proceedings in case no . DATE . The related decision stated that there was information that PERSON was hiding from investigators at his mother \u2019s home at CARDINAL Budennogo Street in GPE . According to the search record of the same date , QUANTITY grams of trotyl were discovered at the applicant \u2019s home .","DATE and DATE a number of local police departments and other law - enforcement authorities were instructed to search for PERSON in connection with the criminal proceedings against him . It transpires that in the same time span a number of expert examinations concerning the weapons seized from the crime scenes and the trotyl found at ORG home were conducted . Further expert examinations with a view to establishing the severity of the injuries inflicted on the victims were carried out ; the victims and some witnesses to the assaults were interviewed in the same period of time .","On DATE criminal cases nos . ORG and DATE were joined ; the new case file was assigned the number DATE .","On DATE PERSON name was put on a wanted list as a person suspected of a number of crimes ; the lawenforcement authorities of ORG district were instructed to search for him .","DATE and DATE the investigators interviewed a number of witnesses about the circumstances of the crimes imputed to the applicant \u2019s son .","On DATE the criminal case against GPE was severed from the proceedings in case no . DATE .","On DATE the investigation in case no . DATE was suspended .","It appears that DATE the investigators instructed a number of law - enforcement authorities to search for PERSON but their requests yielded no results .","On DATE the district prosecutor \u2019s office received yet another criminal case file no . CARDINAL opened against PERSON on DATE on suspicion of unlawfully selling a pistol to a third person . On DATE case file no . CARDINAL was joined to case file no . ORG ; the new case file was assigned the number CARDINAL .","On DATE the investigation in case no . DATE was suspended owing to its failure to locate PERSON .","On DATE the investigation in case no . DATE was resumed . The decision stated , in particular , that on DATE the district prosecutor \u2019s office had received the applicant \u2019s complaint that on DATE persons in camouflage uniforms had arrested PERSON at the \u201c NORP \u201d highway near FAC woodland and had taken him to an unknown destination . It further stated that the applicant \u2019s submissions were to be examined and that operational and search measures aimed at locating PERSON were to be activated .","DATE . On DATE the district prosecutor \u2019s office instructed its counterparts and departments of the interior in GPE and other regions of GPE to inform it whether they had arrested the applicant \u2019s son , held him in detention or otherwise had any information on his whereabouts . They were also requested to ensure that the search for PERSON be activated . It appears to follow from the replies of the relevant authorities , dated DATE , that those measures yielded no results and that no relevant information was obtained following the ORG request .","On an unspecified date in DATE the investigators interviewed the applicant . Her interview record , in so far as relevant , reads as follows :","\u201c ... [ PERSON ] had worked as a coach at the local school before DATE . In DATE I learnt that he had a pistol . He explained to me that he needed it for self - defence ... Some time later our close relative PERSON attempted to kill his sister PERSON , who was allegedly leading an immoral life ... Subsequently we heard rumours that my son had given the pistol to PERSON","DATE police officers stopped a car with my son and CARDINAL other persons inside to arrest them . My son managed to escape but they had seized his passport and pistol . CARDINAL of the persons in the car had opened fire on the policemen and was shot dead . After that the authorities had started persecuting our family . On several occasions persons in camouflage uniforms and masks burst into our house , looking for [ PERSON ] , whose name had by that time been placed on a wanted list .","On several occasions I tried to persuade him to surrender but he was afraid of getting a long prison term or disappearing ...","Until DATE [ PERSON ] had succeeded in hiding from authorities . However , at some point I talked him into surrendering and he promised to do so by DATE .","At TIME on DATE [ PERSON ] left home together with GPE , an ORG officer . They went to ORG in GPE \u2019s silvery VAZ-CARDINAL vehicle with licence plate containing figures \u201c CARDINAL \u201d [ sic ] . [ PERSON ] promised me that he would return ... that evening , but he did not return .","On DATE an unknown man came to my house and told me that PERSON had been arrested . He explained that on DATE he had taken his cattle to a river not far from ORG , close to the road between ORG and ORG . There he had seen a number of military vehicles , including several APCs , military ORG vehicles and a UAZ-CARDINAL vehicle . One of the APCs had the licence plate number \u201c E-CARDINAL \u201d . The vehicles had been stationed at a crossroads . The man had then seen a silvery VAZ-CARDINAL vehicle move in the direction of ORG . When the PERSON had approached the military vehicles , they encircled it and shots had been fired . CARDINAL of the men from the VAZ-CARDINAL vehicle , who had been beaten up , had been placed in a UAZ vehicle and the other had been taken by his hands and feet and thrown in an ORG , following which the military vehicles had driven off in the direction of ORG through the village of ORG . The man had heard that the call sign of the servicemen had been \u201c ORG \u201d . During the events described by him , the man had hidden in the bushes by the road . ... He refused to give his name or to testify before any law - enforcement authorities . According to the man , one of the APCs had white colouring , from beneath which green colour could be seen . When the servicemen had taken off , they had left the VAZ-CARDINAL vehicle behind .","Following that we contacted the authorities and started searching for our son on our own on the outskirts of the village of ORG ; ... the villagers told us that they had seen military vehicles and had heard the shooting but when we asked them to give their names , they refused and stated that they would not testify before any lawenforcement authorities . On DATE of our search I learnt that the vehicle in which my son had gone to PERSON together with GPE had been brought to the local ROVD by police officer NORP on the order of the head of the [ Achkhoy - Martan ] ROVD . Some time later I learnt that that vehicle had been transferred to the ORG . I also learnt that after a while GPE was released and that he started working [ in the police ] again . I also learnt that during his arrest my son had been wounded in the right side of the chest and in the right thigh . I do n\u2019t know if he is alive or not . There were many rumours about my son \u2019s placement in various power structures of the ORG in GPE ; I mentioned all that information in my complaints to the authorities . \u201d","On DATE the investigator in charge of case no . ORG instructed ORG police to examine the applicant \u2019s submissions concerning the abduction of her son by , in particular , identifying and interviewing any witnesses to his apprehension ( particular attention was to be paid to persons residing in the vicinity of the crossroads between LOC and the \u201c NORP \u201d motorway ) .","It appears that following the investigator \u2019s instructions the police interviewed CARDINAL residents of ORG ; they all stated that they did not know anything about the abduction of the applicant \u2019s son .","On DATE and DATE a number of law - enforcement authorities forwarded to the district prosecutor \u2019s office the applicant \u2019s further complaints about the abduction of her son by camouflaged armed men and instructed the latter body to examine her submissions and to inform her of any decisions taken by DATE .","On an unspecified date in DATE the head of the criminal police of the ROVD Mr PERSON issued a certificate ( \u0441\u043f\u0440\u0430\u0432\u043a\u0430 ) , which , in so far as relevant , reads as follows :","\u201c The ROVD has operational information [ \u043e\u043f\u0435\u0440\u0430\u0442\u0438\u0432\u043d\u0430\u044f \u0438\u043d\u0444\u043e\u0440\u043c\u0430\u0446\u0438\u044f ] to the effect that on DATE unidentified officers of security forces stopped on the \u2018 RostovBaku\u2019 motorway a civilian vehicle in which , according to the available sources , PERSON , born in DATE , residing at CARDINAL FAC , Achkhoy - Martan , was found . The ROVD received no complaints from the relatives of [ PERSON ] about his arrest or abduction . ORG has no information on \u2018 Akhmed\u2019 , who had been arrested together with [ PERSON ] . There is information that military armoured vehicles were used during [ ORG ] arrest . There is no information on PERSON \u2019s ensuing whereabouts or the persons who had arrested him . \u201d","On DATE the district prosecutor \u2019s office suspended the investigation in case no . DATE , owing to its failure to find PERSON . By the same decision the district prosecutor \u2019s office instructed the ROVD to continue carrying out operational and search measures aimed at locating PERSON .","The investigation in case no . DATE is still pending .","For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77791","languageisocode":"ENG","respondent":"ESP","branch":"CHAMBER","date":2006,"docname":"CASE OF DACOSTA SILVA v. SPAIN","importance":1,"conclusion":"Violation of Art. 5-1-a;Not necessary to examine Art. 6-1 and 6-3","judges":"Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych","text":["The applicant , a member of ORG ( ORG ) , was born in DATE and lives in GPE . At the material time he was stationed at the PERSON headquarters and had been on sick leave since DATE .","On DATE he was informed that CARDINAL of his close relatives had been taken seriously ill . After notifying the duty officers , he set out TIME for his GPE home in GPE ( GPE ) , where he stayed until DATE .","On DATE members of ORG called at his GPE home to check that he was there . On DATE a sergeant from the same garrison rang the family home in a further check .","On DATE the applicant rejoined his unit in Gij\u00f3n .","On DATE the applicant was informed by a lieutenant - colonel in ORG that disciplinary proceedings had been brought against him for a minor breach of regulations , namely absence from his unit without prior leave .","On DATE the applicant \u2019s superior imposed a disciplinary penalty on him consisting of CARDINAL days\u2019 house arrest pursuant to sections CARDINAL ) and CARDINAL of Law no . CARDINAL of CARDINAL DATE .","DATE the applicant applied for a writ of habeas corpus . His application was dismissed by Le\u00f3n military judge no . CARDINAL on DATE . However , the judge stated in his decision that , since the applicant was on sick leave , the restrictions should be relaxed to allow him to leave the house for medical reasons , to purchase necessities and to attend religious services should he wish to do so .","The applicant lodged CARDINAL internal appeals with PERSON headquarters against the decision of CARDINAL DATE . These were dismissed in CARDINAL decisions of CARDINAL May and DATE .","Subsequently , on DATE , the applicant lodged an appeal with the ORG in which he alleged that he had been wrongly deprived of his liberty and relied , inter alia , on Articles CARDINAL ( right to liberty ) and CARDINAL ( right to a fair trial ) of the LAW . He argued that the decision to place him under house arrest had infringed his right to liberty ( LAW ) as in practice it entailed an actual deprivation of liberty .","He also complained that the decision to deprive him of his liberty had failed to take into account the rule that penalties should not affect service and gave no indication as to how the sentence was to be served , adding that , as he was on sick leave , he had been forced to stay at home for the duration of the sentence .","In his observations , ORG asked for the appeal to be dismissed .","The prosecutor submitted in his observations that there had been a violation of the right to liberty ( LAW ) on account of the failure to determine the conditions of the applicant \u2019s arrest . In particular , there had been no decision on how the sentence was to be served , how its execution was to be supervised or whether it was reasonable . He asked ORG to find in favour of the applicant .","In a judgment of DATE , the ORG dismissed the appeal and upheld the decision of CARDINAL DATE and those of CARDINAL May and DATE . It ruled that it was unnecessary to include the words \u201c without affecting service \u201d in the administrative order depriving the applicant of his liberty as this was inherent in the nature of the penalty for what was only a minor breach of the regulations .","Pointing out that , in the light of ORG case - law , house arrest constituted not merely a restriction but an actual deprivation of liberty , ORG noted that by virtue of LAW there could be no deprivation of liberty other than in the circumstances and manner prescribed by law and that the disciplinary regime applied in the applicant \u2019s case was founded on a basic law ( Law no . CARDINAL of CARDINAL DATE ) which permitted custodial sentences and designated the authorities empowered to impose such sentences and the procedure to be followed . As the military judge had stated when dismissing the application for a writ of habeas corpus , the applicant had been sentenced by the competent authority within the bounds fixed by law to a penalty prescribed by law in accordance with the established procedure . As to the complaint under LAW , the applicant had received a fair trial attended by all the necessary safeguards .","The applicant appealed on points of law to ORG of ORG , which dismissed his appeal in a judgment of DATE . It accepted the applicant \u2019s submission that the words \u201c without affecting service \u201d were required in all orders for house arrest for minor breaches of the regulations so as to avoid restrictions of liberty becoming deprivations of liberty . However , it considered that the additional words had not been necessary in the applicant \u2019s case as he was on sick leave .","ORG noted that ORG had already considered the question of \u201c house arrest \u201d and ruled that it constituted an actual deprivation , not merely a restriction , of liberty , although that legal distinction had no bearing on the legitimacy of house arrest because , by virtue of LAW , military authorities , unlike their civilian counterparts , were empowered to impose penalties entailing deprivation of liberty . ORG consequently concluded that there had been no violation of LAW .","With regard to the applicant \u2019s complaint under LAW of a serious procedural defect due to a failure to give reasons for the decisions , ORG found that the impugned judicial decision contained sufficient reasons and was not arbitrary .","NORP The applicant then lodged an amparo appeal with ORG on the basis of LAW ( right to liberty ) and LAW . In a decision of DATE , which was served on DATE , ORG dismissed the appeal for want of a constitutional basis , finding that the impugned decisions contained sufficient reasons and were not arbitrary . It stated :","\u201c The appellant \u2019s amparo complaints DATE that house arrest violated his right to liberty ( LAW ) as it is not a prescribed penalty for members of ORG such as the appellant who are members of the security , not the armed , forces and that the procedure for imposing such a deprivation of liberty was not complied with \u2013 are manifestly ill - founded . The penalty for minor breaches of the regulations is laid down in LAW no . CARDINAL\/CARDINAL and was imposed in accordance with the statutory procedure , which is different from the procedure applicable to confinement in a disciplinary institution . Accordingly , neither the decisions imposing the penalty nor the military courts , which found that the penalty was in accordance with the law , have been guilty of any constitutional violation of the ordinary law .","The same applies to the allegations by the applicant of a violation of LAW . He maintained that the NORP ORG \u2019s reservation in respect of that provision can not be applied to him as a member of the security forces because Basic Law no . CARDINAL\/CARDINAL defines the disciplinary regime applicable to ORG as being that of an armed military establishment ( section CARDINAL ) . \u201d","\u201c Everyone shall have the right to liberty and security . No one may be deprived of his or her liberty other than in accordance with the provisions of this LAW and in the circumstances and manner provided by law . \u201d","By an instrument dated DATE , GPE ratified the ORG subject to a reservation under former LAW with respect to LAW and CARDINAL \u00a7 CARDINAL to the extent to which they might be incompatible with the provisions concerning the disciplinary regime of the armed forces set out in LAW and LAW of the Code of Military Justice .","The Code of Military Justice was repealed and replaced by Basic Law no . CARDINAL of CARDINAL DATE on the disciplinary regime of the armed forces , which came into force on DATE and applies to both ORG and the armed forces .","When that change was made , ORG at ORG declared on CARDINAL DATE :","\u201c At the time of deposit of the instrument of ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms , on DATE , GPE formulated a reservation to Articles CARDINAL and CARDINAL to the extent to which those ORG might be incompatible with the provisions of LAW and LAW \u2013 concerning the disciplinary regime of the armed forces .","I have the honour to inform you , for communication to the Parties to the LAW , that these provisions have been replaced by LAW no . DATE Chapter II of Part III and Chapters II , III and IV of Part DATE on the disciplinary regime of the armed forces , which will come into force on DATE .","The new legislation amends the former provisions by reducing the duration of the sanctions imposing deprivation of liberty which can be applied without judicial intervention by increasing the guarantees of persons during the preliminary investigation .","GPE confirms nevertheless its reservation to ORG CARDINAL and CARDINAL to the extent to which those ORG might be incompatible with the provisions of LAW no . CARDINAL of CARDINAL DATE LAW and LAW , III and IV of Part DATE on the disciplinary regime of the armed forces , which will come into force on DATE . \u201d","\u201c Under the supreme command of the King , the armed forces , composed of the army , the navy and the air force ... \u201d","Basic Law no . DATE , whose entry into force was notified to ORG see Part B above ) , was expressly repealed by Basic Law no . CARDINAL\/CARDINAL of DATE on the disciplinary regime of the armed forces .","\u201c The ORG security forces ... are composed of :","( a ) NORP the police force , which is an armed civil institution ...","( b ) ORG , which is an armed military institution ... \u201d","\u201c ( CARDINAL ) By reason of its status as an armed military institution , the ORG shall be subject to specific rules in disciplinary matters ... \u201d","\u201c ... the disciplinary rules currently [ in DATE ] applied to ORG are those applicable to the armed forces . However , this arrangement is only operative \u2018 until specific rules are issued\u2019 and the legislation contemplated in section CARDINAL ) of Basic Law no . CARDINAL and prior to that in section CARDINAL ) of Basic Law no . CARDINAL\/CARDINAL can not be left in abeyance indefinitely by allowing the transitional application of the military disciplinary regime to continue for an indefinite period ... \u201d","Further to ORG judgment no . DATE of CARDINAL DATE ( see section D.CARDINAL above ) , Basic Law no . DATE of CARDINAL DATE on the disciplinary regime of ORG was passed \u201c to fulfil the legislative commitments and constitutional requirements adequately and without delay in order to ensure the proper functioning of ORG in the service of society \u201d ( explanatory note ) .","The explanatory note to Law no . CARDINAL\/CARDINAL also states :","\u201c ... owing to the nature of ORG , an armed military institution , and therefore to the need for it to have its own disciplinary regime distinct from that of other ORG security forces , the application of the armed GPE regime to ORG must , as ORG indicated in its judgment of DATE , be regarded as a purely temporary arrangement .","ORG stated that this situation , which is permissible for a transitional period , can not continue permanently with ORG being bound by the rules applicable to the armed forces until specific rules or arrangements are put in place . In the same judgment , ORG indicated that the establishment of disciplinary rules specific to ORG must be a priority objective that can not remain in abeyance indefinitely and that it is for the legislature ... to clarify the imprecision in the legislation concerning the disciplinary regime of ORG ... \u201d","The relevant provisions of Law no . CARDINAL\/CARDINAL read as follows :","\u201c Minor breaches of the regulations are :","( CARDINAL ) All breaches not mentioned in previous legislation that constitute a minor breach of the duties imposed by the provisions governing the activities of ORG . \u201d","\u201c The penalties which may be imposed for minor breaches are :","\u2013 an administrative reprimand ( administrative admonishment ) ,","\u2013 loss of CARDINAL days\u2019 leave ,","\u2013 house arrest of CARDINAL . \u201d","\u201c ORG arrest of CARDINAL consists of a restriction of liberty requiring the offender to live at home throughout the stipulated period . He or she may take part in the activities of his or her unit and shall remain at home for the rest of the time . \u201d","\u201c Disciplinary penalties shall be enforceable immediately and the lodging of an internal or judicial appeal shall have no suspensive effect . \u201d","\u201c ... ORG must point out that house arrest constitutes a genuine deprivation , not simply a restriction , of liberty , so that DATE house arrest would constitute a violation of personal liberty contrary to LAW , which authorises deprivation of liberty only where prescribed by law . \u201d","\u201c ...","In conclusion , the ORG considers it advisable and even necessary that the number of reservations made in respect of ORG conventions be considerably reduced . It accordingly recommends that ORG ,","NORP with regard to ORG conventions which have already been concluded :","i. invite member PERSON to make a careful review of their reservations , withdraw them as far as possible and make a reasoned report to the Secretary General if certain reservations are maintained ;","... \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":["5-1-a"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58818","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2000,"docname":"CASE OF MESSINA v. ITALY (No. 2)","importance":1,"conclusion":"No violation of Art. 8 on account of restrictions on visits by family;Violation of Art. 8 on account of censorship of correspondence;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient","judges":"Christos Rozakis","text":["In a judgment delivered by ORG on DATE the applicant was sentenced to DATE imprisonment and to payment of a fine , inter alia for drug trafficking and membership of a ORG - type organisation . On DATE he was extradited from GPE in order to serve his sentence . He was subsequently held in FAC . In a judgment of DATE , deposited with the registry on CARDINAL DATE , ORG acquitted him of CARDINAL charges and reduced his sentence to DATE imprisonment . The applicant lodged an appeal on points of law on DATE . That appeal was dismissed in a judgment of CARDINAL DATE .","On DATE the judge at ORG responsible for preliminary inquiries issued a warrant to have the applicant brought before him immediately on suspicion of the murder of an officer of the ORG legal service ; the applicant was served with that warrant on DATE . The applicant was acquitted by ORG in DATE . The proceedings are apparently still pending .","In further proceedings against the applicant for membership of a ORG - type organisation and other offences linked with drug trafficking , he was acquitted of the first charge by ORG in a judgment of DATE .","On DATE , in another set of proceedings before ORG , the applicant was sentenced to DATE imprisonment , inter alia for conspiracy to engage in international drug trafficking . In a judgment of DATE ORG acquitted the applicant of one charge and reduced the sentence for the other charges to DATE imprisonment . An appeal on points of law by the applicant was dismissed in a judgment of CARDINAL DATE , deposited with the registry on DATE .","NORP The applicant is serving a DATE prison term to which he was sentenced by ORG for false imprisonment , among other offences .","By a decree of CARDINAL DATE the Minister of ORG ordered that the applicant should be subject to the special prison regime for DATE . This decree was grounded on public order and security considerations given the dangerousness of the ORG and of the applicant in so far as he was presumed , according to police reports , to have maintained links with ORG circles . Moreover , this decree , in derogation from LAW , imposed the following restrictions :","\u2013 no access to a telephone ;","\u2013 no conversation or correspondence with other prisoners ;","\u2013 no meetings with third parties ;","\u2013 limits on visits by family members , with a maximum of CARDINAL visit for TIME ;","\u2013 no sums of money above a fixed amount to be received or sent out ;","\u2013 only parcels containing clothing to be sent in from outside prison ;","\u2013 no organisation of cultural , recreational or sports activities ;","\u2013 no right to vote in elections for prisoners ' representatives or to be elected as a representative ;","\u2013 no handicrafts ;","\u2013 no food requiring cooking to be purchased ;","\u2013 not TIME per day to be spent outdoors .","By the terms of LAW , censorship of correspondence by the governor of a prison required previous authorisation by the court having jurisdiction .","On DATE the governor of PERSON transmitted to ORG an application by the applicant for permission for additional visits and telephone calls , if possible on request . The President of ORG allowed this application on DATE .","On DATE the governor of PERSON asked ORG to authorise censorship of the correspondence of the applicant , who on DATE had been served with the Minister of ORG 's decree placing him under the special regime . On DATE the President of ORG gave his authorisation .","On an unspecified date the applicant challenged the decree of CARDINAL DATE before the PERSON court responsible for the execution of sentences . He objected to being placed under the special regime and complained of its vexatious nature . The court rejected the appeal on an unspecified date in DATE .","The applicant was subsequently transferred several times to prisons in GPE , PERSON , PERSON , GPE , GPE and FAC , often for the sole purpose of allowing him to participate in the hearings of the appeal proceedings taking place in GPE .","On DATE the governor of FAC made an application to ORG and to ORG requesting authorisation to allow the applicant visits by members of his family ( the applicant is married and has CARDINAL daughters ) . The President of ORG granted his authorisation on DATE .","On an unspecified date an application for censorship of the applicant 's correspondence to be authorised was made by the prison to the PERSON court responsible for the execution of sentences . On DATE the ORG court responsible for the execution of sentences allowed that application for DATE .","On DATE the applicant appealed against that decision to the PERSON and PERSON courts responsible for the execution of sentences . The result of those appeals is unknown .","In a decree of CARDINAL DATE the Minister of ORG ordered that the applicant be placed under the special prison regime again , from CARDINAL DATE to CARDINAL DATE , on the ground that the conditions justifying that measure continued to exist . The restrictions were the same as those imposed by the previous decree .","On DATE the applicant appealed against this decree to the PERSON court responsible for the execution of sentences . He complained of being placed under the special regime and , in particular , of the restriction on visits by family members .","NORP In a decision of CARDINAL DATE the PERSON court responsible for the execution of sentences rejected the appeal in part , holding that imposing the special prison regime on the applicant was justified and that the decree complained of was based on adequate grounds . As for the restrictions imposed by that decree , the court found that the list of minimal conditions of detention laid down in section DATE of FAC should apply in relation to visits by family members . Consequently , the court struck down the ban on receiving CARDINAL family visit per month and ruled that the applicant would in future be entitled to CARDINAL .","On DATE the applicant appealed on points of law against that decision . He argued that the conditions of detention to which he was subjected were inhuman and that the special prison regime had been extended by decrees based on inadequate grounds . The public prosecutor also appealed against the decision . In a judgment of DATE , deposited with the registry on DATE , the appeals were declared inadmissible on the ground that the parties no longer had standing , since the decree of CARDINAL DATE had expired on CARDINAL DATE , before ORG delivered its judgment .","In a decree of CARDINAL DATE the Minister of ORG ordered application of the special prison regime to be extended until DATE , on the ground that the conditions justifying the measure continued to exist .","On DATE the applicant lodged an appeal against the above decree with ORG , to be transmitted , if necessary , to the PERSON court responsible for the execution of sentences . He complained , inter alia , of the lack of real grounds justifying extension of the special regime and argued that the restrictions placed on visits and time outdoors and the prohibition of the purchase of food requiring cooking were not only contrary to section DATE of FAC and incompatible with the aim of rehabilitation , but also vexatious . He asked for application of the special regime to be countermanded and for permission to receive visits from his wife and his daughters without being separated from them by glass partitions and to make telephone calls . The applicant also emphasised that he was being held far from his family and the place where the trial was taking place . The outcome of that appeal is not known .","In a decree of CARDINAL DATE the Minister of ORG ordered , on similar grounds , that application of the special prison regime be extended to CARDINAL DATE . On DATE the applicant challenged the above order in the ORG court responsible for the execution of sentences .","In a decree of CARDINAL DATE application of the special regime was once again extended by DATE . The grounds for that decree and the restrictions imposed were the same as those of the previous decrees . On DATE the applicant challenged the above decree in the ORG court responsible for the execution of sentences .","On DATE the applicant applied to the ORG court responsible for the execution of sentences for a date to be fixed for hearing his appeals of CARDINAL DATE and DATE .","In a decree of CARDINAL DATE the Minister of ORG once again extended application of the special regime by DATE ; that decision was based on grounds similar to those of the previous decrees . On DATE the applicant challenged the decree in the ORG court responsible for the execution of sentences . The court dismissed the applicant 's appeal in a decision of CARDINAL DATE . Basing its decision on ORG judgment no . CARDINAL , the court held that extension of the application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities . However , it struck down some of the restrictions previously placed on the applicant , namely suspension of the rehabilitation programme ; restrictions on visits by family members ; the prohibition of parcels containing anything other than clothing ; the ban on the purchase of food requiring cooking and the restriction of time spent outdoors to TIME per day . The applicant appealed on points of law against the above decision . The hearing in private was set down for DATE . On that date the appeal was declared inadmissible as being devoid of purpose , the decree 's period of validity having in the meantime expired .","On DATE the Minister of ORG ordered that the applicant be permitted to replace the DATE visit by his family with a telephone call , to receive CARDINAL additional parcel per month and CARDINAL special parcels per year , and to use the kitchens .","In a decree of CARDINAL DATE the Minister of ORG once again extended application of the special prison regime by DATE . That decision was based on grounds similar to those of the previous ones . The applicant challenged the above decree in the ORG court responsible for the execution of sentences , which dismissed his appeal in a decision of CARDINAL DATE , ruling that extension of application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities . However , it struck down some restrictions previously imposed , namely suspension of the rehabilitation programme , restrictions on visits by family members , the prohibition of parcels containing anything other than clothing , the ban on the purchase of food requiring cooking , and the restriction of outdoor exercise to TIME per day . The applicant appealed on points of law against the above decision but in a judgment of DATE his appeal was ruled inadmissible as being devoid of purpose , since the decree 's period of validity had expired in the interim .","On DATE the applicant applied to the ORG judge responsible for the execution of sentences , complaining of the regime under which he had been placed . The judge dismissed that appeal in a decision of DATE , deposited with the registry on DATE . He noted that the restrictions the applicant had complained of had been imposed by the prison authorities by means of departmental orders which , without exception , implemented the Minister of ORG 's decrees and were therefore lawful ; he further emphasised that defendants DATE unlike convicted persons DATE were not required to participate in the rehabilitation programme on account of the principles of the presumption of innocence and the freedom to defend oneself .","In a decree of CARDINAL DATE the Minister of ORG extended the special regime for DATE and ordered the governor of the prison to apply to the competent court for authorisation to censor all the applicant 's correspondence . On DATE the governor of ORG applied for authorisation to the GPE judge responsible for the execution of sentences , who informed the judge who had jurisdiction , namely the PERSON judge responsible for the execution of sentences . The latter ordered censorship of the applicant 's correspondence for DATE , starting on DATE .","On DATE the applicant appealed against the decree of CARDINAL DATE to the PERSON court responsible for the execution of sentences , which transmitted his appeal on DATE to ORG . ORG returned it to the PERSON court on DATE as jurisdiction over the matter had changed in the interim ( see paragraph CARDINAL below in fine ) . By a decision of CARDINAL DATE , deposited with the registry on CARDINAL DATE , the PERSON court responsible for the execution of sentences dismissed the appeal .","In a decision of CARDINAL DATE the Minister of ORG revoked the restriction on outdoor exercise .","In a decision of CARDINAL DATE the Minister of ORG ordered that the applicant should cease to be subject to the special regime .","A number of letters and the observations sent by the applicant to the ORG of ORG through his wife arrived with censors ' stamps from the prisons of GPE , GPE , ORG , ORG and ORG Censorship continued until DATE .","Letters sent by the applicant to his wife , in particular those of CARDINAL and DATE were censored ; the applicant was informed of this on CARDINAL and DATE .","The appeals by the applicant to the courts responsible for the execution of sentences were censored by the prison authorities .","Section CARDINAL bis of LAW ( Law no . CARDINAL of CARDINAL DATE ) , as amended by LAW no . CARDINAL of CARDINAL DATE , gives the Minister of ORG the power to suspend application of the ordinary prison regime as laid down in Law no . CARDINAL of DATE in whole or in part , by means of a decision stating grounds which is subject to judicial review , for reasons of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements .","Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in LAW , which includes offences relating to ORG activities .","Under the terms of section CARDINAL of Law no . CARDINAL of DATE , application of the section CARDINAL bis special regime was extended until DATE .","The measures which may result from application of section CARDINAL bis are the following :","\u2013 a ban on participating in the preparation of food and organising prisoners ' recreational activities ;","\u2013 a ban on visits by persons other than family members , a cohabitant or a lawyer ;","\u2013 a maximum of CARDINAL visits and CARDINAL telephone call per month ;","\u2013 censorship of all the prisoner 's correspondence except for that with his lawyer ;","\u2013 not TIME per day to be spent outdoors ;","\u2013 no extra visits allowed for good conduct ;","\u2013 restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison 's internal rules ;","\u2013 CARDINAL parcels per month ;","\u2013 no sums of money to be received from outside prison or sent out ;","\u2013 no handicrafts involving the use of dangerous tools .","Section CARDINAL ter of the Prison Administration Act provides for an appeal ( reclamo ) to the court responsible for the execution of sentences ( tribunale di sorveglianza ) against a decree of the Minister of ORG imposing the special regime within DATE from the date on which the person concerned receives a copy of the decree . Such an appeal does not have suspensive effect . The court must take a decision within DATE . LAW no . CARDINAL of DATE requires an appeal to be lodged with the court responsible for the execution of sentences which has geographical jurisdiction over the prison where an appellant is serving his sentence . An appeal to ORG lies against the decision of the court responsible for the execution of sentences .","ORG , having been asked to rule on whether such a system complied with the principle of non - encroachment on matters reserved for the legislature , held ( in judgments FAC . CARDINAL and CARDINAL of DATE ) that section CARDINAL bis was compatible with the LAW . It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister , an appeal lay against a ministerial decree to the courts responsible for the execution of sentences , which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned , which in any event ought never to entail inhuman treatment .","Nevertheless , ORG held , on the basis of LAW , which provides , inter alia , that restrictions on correspondence may be imposed only by means of a court decision whose grounds are stated , that the power to order censorship of a prisoner 's correspondence belonged to the courts alone . As a result , section CARDINAL bis could not be interpreted to include a power on the Minister of ORG 's part to take measures relating to prisoners ' correspondence .","However , ORG has held that the courts responsible for the execution of sentences should confine themselves to reviewing the lawfulness of a ministerial decree as such , and could not usurp the role of the administrative authorities in the choice of the actual measures to be taken . On the other hand , the courts responsible for the execution of sentences have in practice gone so far as to review whether each specific measure is in accordance with the aim pursued by the administrative authorities . The result of this had been that decisions of the courts responsible for the execution of sentences had often remained unexecuted , and this had given rise to conflicts between those courts and the administrative authorities .","In judgment no . CARDINAL of DATE the ORG established the principle that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementation of a measure , regard being had both to the aim pursued and to the fundamental rights guaranteed by LAW . ORG , moreover , changed the line of its case - law on the question even before ORG judgment , by allowing the court responsible for the execution of sentences to strike down , in whole or in part , the application of unlawful measures ( see judgments nos . DATE of DATE and CARDINAL of DATE ) .","On DATE , applying the principles laid down by ORG in the above - mentioned judgment , ORG of ORG sent a circular letter to the governors of prisons regarding organisation of the wings where prisoners subject to the special regime are held . This circular contained , inter alia , the following instructions : prisoners would from then on be allowed to use the kitchens ; they would have access to rooms equipped for sporting activities and to a library ; visits by family members could be replaced by telephone calls ; the use of glass partitions would continue but , as a result , the searching of visitors need not be so strict .","In judgment no . CARDINAL of PERCENT DATE ORG reaffirmed that section CARDINAL bis was compatible with the LAW , while changing and clarifying the interpretation to be given to it . It held , inter alia , that decrees imposing the special regime had to be based on genuine public - order and security grounds , and that decisions to extend application of the regime also had to be based on sufficient grounds which were independent of those which had justified the imposition of the rules in the first place . ORG held that the special regime should not amount to inhuman treatment or hinder the prisoner 's rehabilitation , which would be contrary to LAW . It nevertheless stated that at no time did LAW cease to apply , under which the treatment to which a prisoner is subjected must respect his personality , and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner 's personality and with his cooperation .","Section CARDINAL of the Act also remained applicable . This provided that cultural , sporting and recreational activities should be promoted and organised in prisons \u2013 as should any other activity allowing the expression of the prisoners ' personalities within the rehabilitation programme . These activities had to be organised , of course , in such a way as to prevent any contact between the person concerned and the ORG or criminal environment from which he came . Emphasising that the special regime had to respect the aim of returning the prisoner to normal society , ORG held that the principle of the presumption of innocence was not infringed by the fact that the special regime could be imposed on suspects before a final conviction . In fact , application of the special regime did not stand in the way of early release ( see ORG judgment no . CARDINAL of DATE ) , which presupposed the prisoner 's previous participation in the cultural , sporting and recreational activities provided for in section CARDINAL of LAW .","On DATE , in accordance with the principles laid down by ORG in the above - mentioned judgment , ORG of ORG sent a circular letter to prison governors concerning the organisation of the wings where prisoners subject to the special regime are held . This circular included , inter alia , the following instructions :","\u2013 outdoor exercise time was to be increased to TIME per day , but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be associated with the ORG ;","\u2013 the outdoor exercise yards in LOC and Pisa Prisons were to be equipped for physical exercise and sport ;","\u2013 one or more rooms for social , cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons ;","\u2013 on the question of work , the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons , with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be associated with the ORG ;","\u2013 visits by children DATE could take place without a glass partition ; if the visit took place in the presence of other persons , partition - free access was to be authorised for the children only and was not to exceed CARDINAL of the total duration of the visit in length ;","\u2013 prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking , because they were not to be allowed to use the kitchens except for the purpose of making hot drinks or heating up pre - cooked food .","Section CARDINAL of Law no . CARDINAL of DATE , as amended by LAW no . CARDINAL of DATE , provides that the authority empowered to order the censorship of prisoners ' correspondence is the court before which proceedings are pending ( whether the investigating court or the trial court ) until the delivery of the first - instance judgment , and the court responsible for the execution of sentences during any subsequent proceedings . Section CARDINAL also provides that the court with jurisdiction may order the monitoring of a prisoner 's correspondence in a decision stating reasons , but it does not set out the cases in which such a decision may be made .","NORP In practice , the censorship concerned means interception of all the correspondence of the prisoner subject to the order , which is then read by the judicial authority which ordered it , by the governor of the prison or by prison staff designated by the governor . The letters are then marked with the censor 's stamp , which serves as proof that they have been read ( see also LAW no . CARDINAL of DATE , implementing the above - mentioned PERSON no . CARDINAL ) . This supervisory measure can not lead to the erasing of words or sentences , but the judicial authority may order that CARDINAL or more letters should not be delivered . In such cases , the prisoner must be immediately informed of this . Such an order may also be made provisionally by the governor of the prison , who must , however , inform the judicial authority .","Lastly , with regard to the remedies available against censorship of correspondence , ORG has stated in several decisions that it constitutes an administrative act . Moreover , ORG has affirmed in its settled case - law that NORP law does not provide remedies in this respect ; nor can censorship form the subject of an appeal on points of law since it does not concern the prisoner 's personal liberty ( ORG judgments nos . CARDINAL of DATE of DATE ) .","Section CARDINAL of the Prison Administration Act provides that prisoners may make sealed applications or complaints to the following authorities :","\u2013 the governor of the prison , prison inspectors , the Director - General of Prisons and the Minister of ORG ;","\u2013 the judge responsible for the execution of sentences ;","\u2013 the judicial and health authorities which inspect the prison ;","\u2013 the President of ORG ; and","\u2013 the President of the Republic ."],"violated_articles":["13","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4553","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1999,"docname":"TIERNEY v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP citizen born in DATE and currently detained in FAC , GPE . Before the ORG , he is represented by Mr. PERSON Row , a solicitor practising in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested and , together with his brother , charged with burglary and conspiracy to commit burglary . After being charged , the applicant and his brother were released on conditional bail .","Committal papers were served on the defence on DATE , following the completion of the police investigation . The applicant \u2019s representatives requested an \u201c old style \u201d committal hearing , which would have involved hearing oral evidence from CARDINAL prosecution witnesses DATE . It was not possible for ORG to schedule a DATE hearing before DATE . On that date the defence decided to proceed on the basis of written statements under the shortened committal procedure ( provided for by section CARDINAL(CARDINAL ) of FAC DATE ) . The case was then committed for trial to ORG .","On DATE there was a pre - trial hearing to ascertain the pleas of the accused and to give directions for trial . The applicant and his brother pleaded not guilty and were released on bail .","In a letter received on DATE , the applicant \u2019s solicitors wrote to the court asking for the case not to be listed for DATE to enable them to obtain the report of a forensics expert . In a letter received on DATE , they asked for a further delay of DATE . Finally , in a letter received on DATE they asked that the trial not be listed until DATE or DATE to enable them to obtain medical evidence .","The trial , which was estimated to require DATE and involve hearing evidence from CARDINAL witnesses , was listed for DATE . However , the applicant failed to appear at the trial . In his application he explained that \u201c because of threats which [ he ] was receiving from the persons actually responsible for the offences for which [ he ] stood charged , [ he ] failed to attend court . [ He ] ... stayed at home to protect [ his ] family from known criminals who would have caused harm to [ his ] family \u201d .","The applicant was arrested on DATE and remanded in custody . The trial was next scheduled for DATE . On DATE , the applicant \u2019s co - accused brother failed to appear and the case was again adjourned .","On DATE there was a further pre - trial directions hearing . CARDINAL possible trial dates were proposed : CARDINAL DATE , DATE and DATE . However , the applicant \u2019s counsel , who had acted for him from the outset and whom the applicant wished to represent him at trial , was not available on DATE , and it was not possible for the trial to take place on DATE because of the unavailability of a number of witnesses . The trial was , therefore , fixed for DATE . The applicant was remanded in custody until then .","At the trial , both the applicant and his brother pleaded guilty to charges of conspiracy to burgle . The applicant was sentenced to CARDINAL years\u2019 imprisonment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77874","languageisocode":"ENG","respondent":"DNK","branch":"ADMISSIBILITY","date":2006,"docname":"BIGUM AND OTHERS v. DENMARK","importance":4,"conclusion":"Inadmissible","judges":"Snejana Botoucharova","text":["The applicants are a married couple , born in DATE and DATE , respectively , and their daughter , C , born on DATE . They live in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant parents suffer from arrested development . Intellectually they have been placed in the category of severely mentally retarded pesons and their disorders have been assessed to be congenital . Since their childhood they have been in close contact with the social and health authorities . The applicant parents have cohabited since DATE .","On DATE the applicant GPE first child , M , was born . On the social authorities\u2019 initiative , DATE after the birth the applicant parents and M moved into a family observation institution ( ORG ) , with staff consisting of social workers , psychologists and social education workers , which was to support the applicant parents and assess the extent to which they possessed potential in the parenting role . The institution submitted its report on DATE .","As to the applicant mother , the report stated , inter alia , that her attention could only be maintained for short intervals and with massive support . She was generally preoccupied with talking about her physical ailments to the extent that it took most of her energy . When faced with demands , for example if M started to cry or became restless , the mother became anxious and could seem panicstricken . She was not able to recognise her own problems and need for support and she had great difficulty in establishing contact with M.","As regards the applicant father , notably during the beginning of his stay at the institution , he often made verbal threats against the staff and the other families at the institution . He had violent nightmares during which he would cry out loudly and pull out his tongue . Moreover , his night sleep was broken by long hot showers for TIME , during which he would talk or shout to himself . Consequently , he would often be exhausted during the day and sleep most of the time . He had no structure to his day and showed no signs of being able to handle DATE routines . He had no understanding or recognition of his need for help and support in the parental role . He had trouble realising the consequences of his actions , and was not capable of protecting their baby M from physical harm ( for example , he left M alone on the changing table although the danger of doing so had been explained to him frequently ) .","With regard to the GPE care skills , the report stated that both parents had extreme difficulty in establishing contact with M , and they often asked the staff to take over when they became impatient with her . None of the parents handled M particularly gently and their movements sometimes seemed uncoordinated . Mostly , they forgot to hold the baby \u2019s head . They would not let M sleep and were in general not capable of recognising and understanding her needs . The report also stated that due to the GPE inability to concentrate , M \u2019s attempts to make contact with the parents were usually rejected or not answered . Thus , M eventually gave up contact and looked away from the parents when being with them .","The conclusion read as follows :","\u201c The parents appear as a very emotional damaged couple who , because of their own disadvantaged upbringing , find it extremely difficult to master the task of parenting . The staff have no doubt that both parents have done their best in a spirit of love for their child , but their personality structure and their non - existing inner picture of the parent role prevent them from developing sufficient parenting functions . Moreover , their lack of mental resources is a further hindrance to the task of their developing parenting potential .","Despite intervention at various levels , the basic symbiotic mother - child dyad has not developed .","For the mother \u2019s parental skills , this lack of bonding means that she is unable to see and understand the child \u2019s signals , nor is she able to adapt to the child \u2019s needs , which is crucial for the child \u2019s attachment ability and emotional development .","We have examined whether the father has the resources to take over this process , but the examination showed that he does not master this either .","Their lack of timing and the resulting unintended abuse create unpredictability and chaos in the child \u2019s world and will be a risk factor in her development ,","Moreover , both parents lack the fundamental ability to structure their everyday lives , for the child as well as for themselves . In particular , their serious problems managing their finances permeate their entire everyday lives .","Their - as we see it - very resource - poor network means that the father , mother and child can not expect adequate support . Mother and father tell us themselves that they have no friends who can give them special support . Our observations have also shown that their ability to create relations is virtually non - existent . \u201d","On DATE M was taken into public care without the GPE consent . Since DATE she has lived with a foster family . A relief foster family was also provided for her , to take over during holidays etc . The applicant parents were granted regular access , which was to take place under surveillance . Since DATE access has taken place in the presence of the foster family .","The applicant GPE second child , C , was born on DATE .","Beforehand , at a meeting held on DATE , the applicant parents were informed by a social worker at the Municipality ( ORG ) that the latter would not recommend that the family be placed in a family institution when the child was born . The decision was based on the report of CARDINAL DATE and reports on the applicant GPE access to NORP In addition , the decision was based on CARDINAL statements of DATE by a neuropsychologist , who in DATE had examined each of the applicant parents at the request of the social and health authorities in connection with the granting of social benefits ( f\u00f8rtidspension ) . With regard to the applicant father the statement concluded :","\u201c The findings of the neuropsychological examination show a DATE man , whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level , thus presently placing him in the severely mentally retarded category . On review of the individual neuropsychological functions as well as the intellectual and memory functions , a number of heavy disorders appear , manifested in a more diffuse affection of cortical brain areas , most pronounced in the frontoparietal brain areas of the left hemisphere . The disorders are assessed to be congenital . As regards an assessment of future job possibilities , I believe the chances of his being placed in the labour market under normal conditions to be non - existent , and that he has no real capacity for working in any kind of occupation , not even in sheltered surroundings . \u201d","With regard to the applicant mother the statement concluded :","\u201c The findings of the neuropsychological examination show a DATE woman whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level , thus presently placing her in the severely mentally retarded category . On review of the individual neuropsychological functions as well as the intellectual and memory functions , a number of disorders appear , manifested in a more diffuse affection of cortical brain areas , most pronounced in the frontoparietal brain areas of the right hemisphere . The disorders are assessed to be congenital . \u201d","On DATE the Municipality received written information from an acquaintance of the applicant parents that the latter planned to run away from the hospital with the baby when it had been born .","On DATE , a family care consultant also informed the GPE that the applicant father had told her that with the help of others he had planned to run away with the baby within TIME after its birth .","By decision of CARDINAL DATE the GPE refused the applicant GPE request that they and their newborn pursuant to LAW ) of ORG ( ORG ) be placed at a family institution observation home or that mother and child be placed together with a foster family . At the same time the applicant parents were also informed that the LOC intended to take the newborn into public care . The applicant appealed against the decision to ORG ( PERSON ) .","On DATE C was born and DATE the Chairman of ORG ( B\u00f8rne- og Ungeudvalget ) under the Municipality decided provisionally , pursuant to section CARDINAL ( CARDINAL ) of GPE , to take C into public care without the consent of the applicant parents . The decision gave the police the authority to prevent the applicant parents from leaving the hospital with C , but the parents had unlimited access to their baby during the stay at the hospital .","According to section CARDINAL ( CARDINAL ) of GPE , the preliminary decision was approved by the entire Children and Young Persons Committee at a meeting on DATE , during which the applicant GPE lawyer was present . The decision was based on the report of DATE , the CARDINAL statements of DATE and the information submitted about the ORG intention to run away with the newborn baby .","The decision was implemented DATE in connection with the applicant mother \u2019s discharge from the hospital . At the wish of the applicant parents , C was placed with M \u2019s relief foster family , which allowed the children to see each other on a regular basis .","During a meeting on DATE , at which the applicant parents , represented by their lawyer , were heard together with their CARDINAL advisers ( bisiddere ) , the Children- and ORG made its final care order pursuant to section DATE ( CARDINAL ) of GPE .","The applicant parents had access to C one hour twice a week in the foster GPE home .","On appeal , by decision of DATE , ORG upheld ORG decisions of DATE and DATE . Before the ORG , the applicant parents , represented by their lawyer , and an adviser were heard . In addition , various documents were submitted , including the report of DATE , the CARDINAL statements of DATE concerning the neuropsychological examinations of the applicants and the LOC \u2019s case file . ORG found that due to the applicant GPE diminished intellectual functioning and limited personal resources , there was an evident risk that C \u2019s health and development would suffer serious damage if she was to remain with them . For the same reasons , it considered that the problems could not be solved in the applicant GPE home , even if they were granted measures of support . The care order was to be reconsidered by ORG DATE from the ORG \u2019s decision or , if the decision was brought before ORG , DATE from ORG judgment .","On DATE the applicants appealed against the decision to ORG ) , claiming the GPE \u2019s care order to be revoked as regards C. They also appealed against a decision of DATE in which ORG had continued the taking into public care of M.","The applicant parents were heard by ORG . In addition to the written material already submitted before ORG , the court also obtained CARDINAL statements of DATE in which the foster families described the positive health and development of M and C respectively . They stated that the applicant GPE access to the children was well implemented .","By judgment of DATE , ORG found against the applicants . It stated that for the reasons set out by ORG the conditions under section CARDINAL of GPE were fulfilled for taking the applicant GPE children , M and C , into public care .","The applicants\u2019 request to be granted leave to appeal to ORG ( H\u00f8jesteret ) was refused on DATE .","In DATE , in connection with the review of the public care order , the GPE decided to make an assessment of the ORG parenting skills by a psychologist . The assessment was submitted on DATE and contained a recommendation to maintain C in public care since the applicants parental skills were found too limited .","In a statement of DATE the foster family described their view on ORG development and on how access with the parents was working out . The parents had been good at keeping the appointments , and although the father had only little contact with C , the mother was very preoccupied with proving that she could perform the role as a mother . Both applicant parents , however , were unable to interpret the child \u2019s signals and impervious to advise . Consequently , the contact confused the child .","On DATE having heard the applicant parents and CARDINAL of their advisers , ORG decided to continue the public care for DATE . On appeal , on DATE , ORG confirmed the decision .","The applicant did not bring this decision before the courts . On the contrary , on DATE the applicant parents gave their consent to the taking of C into public care .","In the meantime , in DATE , the applicant parent \u2019s access to C was increased and now took place once a week for TIME in the presence of the support person appointed to the parents . In DATE , however , on the applicant GPE request , access was reduced to take place once DATE for TIME .","B. Relevant domestic law and practice","The relevant provisions of LAW ( ORG ) at the time read as follows :","Section CARDINAL","GPE takes a decision as to measures to be taken under subsection CARDINAL , when this is deemed to be of significant importance with regard to a child \u2019s or young person \u2019s special need for support . From the measures listed in subsection CARDINAL , CARDINAL or more of the least restrictive measures among those suitable shall be chosen . Any such decision shall be subject to the consent of the custodial parent , or other person having custody ... Any decision taken under subsection CARDINAL ( xi ) shall be subject also to the consent of the young person , who has reached DATE .","The LOC may decide :","( i ) to offer consultation assistance relating to the child or young person \u2019s conditions , including the admission of the child or young person to a daytime facility , a youth club , training or education establishment , etc . ;","( ii ) to offer practical , pedagogical or other support in the home ;","( iii ) to offer family therapy or similar support ;","( iv ) to offer the custodial parent , or other person having custody , the child or young person and other family members the possibility of staying on a full - time basis ... , in an institution , with a foster family , at another approved facility , in a municipal full - time facility or in an accommodation facility approved by the county authority subject to the rules provided under section ORG below ;","( v ) to offer a relief arrangement ... at a full - time institution , with a foster family , in a municipal full - time facility or at an approved facility ;","( vi ) to appoint a welfare officer for the child or young person ;","( vii ) to appoint a permanent contact person for the child or young person or for the whole family ;","( viii ) to grant financial support in respect of expenses incidental to the measures listed under ( i)-(v ) where the custodial parent or other person having custody can not afford such expenses ;","( ix ) to grant financial support in respect of expenses incurred for the purpose of preventing a child or young person being taken into care , for the purpose of expediting the return of a child or young person to his \/ her home or of contributing towards creating and maintaining stable contact between parents and children while one or more children are in care ;","( x ) to grant financial support for attendance at a boarding school or continuation school where the custodial parent , or other person having custody , can not afford such costs ;","( xi ) to take the child or young person into care at a full - time institution , with a foster family , in a municipal full - time facility or at an approved facility deemed suitable for the special needs of the child or young person ....","Section CARDINALa","In connection with a child or a young person being taken into public care ... , the GPE proposes that a support person be appointed to the custodial parent or other person having custody of the child .","Section CARDINAL","If there is an obvious risk that the health or development of the child or young person will suffer major damage due to","( i ) inadequate care or treatment of the child or young person ;","( ii ) violence or other serious ill - treatment ;","( iii ) substance abuse or criminal conduct or other serious social difficulties on the part of the child or young person ; or","( iv ) any other behavioural or adjustment problems in the child or young person ,","the Children and Young Persons Committee may decide that the child or the young person be taken into care according to section CARDINAL ( CARDINAL ) ( xi ) without the consent of the custodial parent or other person having custody , or of the young person having reached DATE . [ Such a decision ] may be made only when there is a reasonable assumption that the problems can not be resolved during the child \u2019s or young person \u2019s continued stay in the home .","If it is in the child \u2019s or young person \u2019s best interest , ORG may decide that the child or young person be taken into care pursuant to subsection CARDINAL , notwithstanding that the custodial parent , or other person having custody , and the young person consent to an arrangement under section CARDINAL ( CARDINAL ) ( xi ) .","...","Any decision taken under subsections CARDINAL may be made on a provisional basis subject to the rules provided under LAW below provided the requirements are met .","Section CARDINAL","Decisions under sections ... CARDINAL , ... ORG ) , ... which , because of the immediate needs of the child or young person , can not be deferred pending consideration by ORG , may be made on a provisional basis by the Chairman of the ORG or in his absence by the Deputy Chairman .","The custodial parent or other person having custody , ... shall within TIME of the implementation of a provisional decision be given written notice of the decision and the reasons for the decision . Such notice shall also give particulars of the right of access to case records provided for by ORG , the right to be heard and to receive free legal assistance .","A provisional decision made under subsection CARDINAL shall be submitted to ORG for their approval as soon as possible and within a maximum period of DATE from the implementation of the decision , whether or not the measure has been discontinued .","...","Section CARDINAL","Measures under sections CARDINAL , ... DATE , ... shall be discontinued when their object has been achieved , when they no longer serve their purpose taking into account the special needs of the child or young person , or when the young person attains the age of CARDINAL ...","Section CARDINAL","ORG ... shall in a meeting decide on the following ... ( ii ) to take a child or young person into care under section DATE ; ... ( vi ) approval of a provisional decision under section CARDINAL ) ;","Before a decision is made , the custodial parent , or other person having custody , the child or young person , the legal adviser and any other adviser to the custodial parent or other person having custody shall be given an opportunity to be heard by ORG . An opportunity provided under the first sentence to the child or young person may be dispensed with if the child has not attained the age of DATE or where it is deemed to be harmful to the child or young person .","...","Section CARDINAL","Decisions by ORG accordingly to section DATE , may be brought before ORG ...","...","Section CARDINAL","Decisions by ORG under sections CARDINAL ( CARDINAL ) and CARDINAL may be brought before ORG , within DATE of the date on which the party appealing has been given notice of the decision .","...","Section CARDINAL","Decisions by ORG can not be appealed against to ORG . However , the Leave - to - Appeal Board may grant leave to appeal to ORG against decisions or judgments by ORG when they are found of general principle . Such a request must be made within respectively DATE from the decision or the judgment .","The relevant provisions of ORG ( Lov om retsikkerhed og administration p\u00e5 det sociale omr\u00e5de ) at the time read as follows :","Section CARDINAL","ORG consists of :","( i ) CARDINAL members elected by the municipal council from among its members ;","( ii ) the ORG Judge in the district . If there are several judges in the judicial district the ORG shall appoint CARDINAL of them ; and","( iii ) an educational \/ psychology expert to be appointed by the county council for the municipal term of office .","...","Section CARDINAL","ORG shall elect its own chairman and deputy chairman from among the members elected by the municipal council .","The judge shall chair the meetings of the committee and shall ensure that the necessary investigations have been undertaken , decide whether to obtain more information and may require a judicial examination to be conducted under section CARDINAL of ORG . Also , the judge shall provide guidance as to the interpretation and application of the rules and consider and evaluate the information available ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82223","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2007,"docname":"CASE OF SHAMRAY v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant instituted civil proceedings against his former employers , the ORG - owned mines \u201c PERSON \u201d and \u201c PERSON \u201d , seeking compensation for damage to his health .","On DATE ORG ( PERSON \u043c\u0456\u0441\u044c\u043a\u0438\u0439 \u0441\u0443\u0434 ) ordered the mine \u201c PERSON \u201d to pay the applicant a lump sum of PERSON hryvnyas ( ORG ) . On DATE ORG ( the \u201c ORG \u201d ; ORG \u043e\u0431\u043b\u0430\u0441\u043d\u0438\u0439 \u0441\u0443\u0434 ) amended this judgment , having additionally awarded the applicant arrears in DATE allowances for DATE .","On DATE ORG ordered the mine \u201c PERSON \u201d to pay the applicant the total ORG CARDINAL,CARDINAL.CARDINAL in DATE allowance arrears .","After the above decisions had become final and the enforcement proceedings had been instituted in their respect , the applicant unsuccessfully requested the judicial authorities to re - open the proceedings , seeking higher compensation .","According to the ORG , the judgments debts were fully paid to the applicant in several instalments , last payments having been made in DATE . To this end , the Government presented copies of the decisions to terminate the enforcement proceedings taken on CARDINAL and DATE by the Bailiffs ( ORG \u0432\u0438\u043a\u043e\u043d\u0430\u0432\u0447\u043e\u0457 \u0441\u043b\u0443\u0436\u0431\u0438 NORP \u043c\u0456\u0441\u044c\u043a\u043e\u0433\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f \u044e\u0441\u0442\u0438\u0446\u0456\u0457 ) in respect of the mines \u201c PERSON \u201d and \u201c PERSON \u201d respectively .","The applicant maintained that he had received only a part of the judgments debt due to him . He did not , however , specify the outstanding amount and provided no information on whether he had challenged the Bailiffs ' decision to terminate the enforcement proceedings .","After the case had been communicated to the Government , the applicant additionally submitted a number of documents concerning his other disputes and proceedings against various parties , however , he neither described the relevant facts , nor articulated any separate complaints in their respect .","A description of the relevant domestic law can be found in ORG v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59220","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2001,"docname":"CASE OF JERUSALEM v. AUSTRIA","importance":1,"conclusion":"Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant is an NORP citizen , residing in GPE . At the relevant time she was a member of ORG ( PERSON ) , which also acts as ORG ( Landtag ) .","On DATE , in the course of a session of ORG , the applicant , in her function as member of ORG , gave a speech . The debate related to the granting of subsidies by the municipality to an association which assists parents whose children had become involved in sects . In this context the applicant made the following statement :","\u201c Like everyone else , I know that DATE a sect no longer means a small group that breaks away from a big church ... , but a psycho - sect .","These psycho - sects also exist in GPE . They have common features . CARDINAL aspect they have in common is their totalitarian character . Moreover , in their ideology , they show fascist tendencies and often have hierarchical structures . In general , a person who gets involved with such a sect loses his identity and submits to the group ... \u201d","After having commented on the activities of an association she considered a sect , the applicant continued as follows :","\u201c ... the sect ORG [ ORG der PERSON \u2013 Institute for a Better Understanding of Human Psychology ] , which has not long been in existence in GPE but which has existed for DATE in GPE , where it is called the FAC [ Verein zur F\u00f6rderung der PERSON for a Better Understanding of Human Psychology ] has had a certain influence on the drugs policy of ORG . \u201d","The applicant then stated that ORG had issued a publication on drugs policy in cooperation with the ORG , and had organised information activities involving public discussions together with the ORG . The applicant then requested a resolution by ORG that , before granting subsidies to an association , the question whether that association was a sect should be examined .","The debate in ORG then turned to the drugs policy and the applicant , in a further speech , criticised the cooperation between ORG and the ORG , and made further statements on the nature and activities of the ORG .","On DATE the ORG , an association established under NORP law , and the VPM , an association established under NORP law , filed a civil - law action under LAW against the applicant with ORG ( PERSON f\u00fcr PERSON ) . The associations requested the court to issue an injunction against the applicant prohibiting her from repeating the statement that the ORG was a sect , ordering her to retract this statement and directing the publication of the applicant \u2019s retraction in several NORP newspapers .","On DATE the applicant commented on the action . She submitted that the term \u201c sect \u201d used by her was a value judgment and not a statement of fact . It had been used in the context of a political debate . If the court , however , was of the opinion that the term \u201c sect \u201d was a statement of fact , she was willing to prove that this statement was true , and proposed documentary evidence and the hearing of witnesses to confirm that the plaintiffs were sects . As documentary evidence , the applicant proposed a decision by a NORP court and CARDINAL articles from newspapers and periodicals on the internal structure and activities of the plaintiffs . She proposed that CARDINAL witnesses be heard . She also requested that the court obtain an expert report .","On DATE the ORG and the VPM altered their injunction claim to include the following statement made by the applicant on DATE :","\u201c CARDINAL aspect they have in common is their totalitarian character . Moreover , in their ideology , they show fascist tendencies and often have hierarchical structures . In general , a person who gets involved with such a sect loses his identity and submits to the group ... \u201d","On DATE the applicant confirmed that she had received the plaintiffs\u2019 amended claim . She submitted a transcript of the session of ORG of DATE , and argued that the modification of the action merely referred to a general explanation of the term \u201c psycho - sect \u201d and had no direct relation to the plaintiffs . She further referred to her previous statements and the evidence proposed therein .","On DATE a hearing took place before ORG . The court accepted several documents submitted by the parties , closed the taking of evidence and rejected all requests for the taking of other evidence as irrelevant because the documents submitted had clarified the issues sufficiently .","On DATE ORG granted the injunction . It ordered the applicant not to repeat her statements that the ORG and the FAC were sects of a totalitarian character . Furthermore , the court ordered the applicant to retract these statements , the retraction to be published in several newspapers . ORG found that , contrary to the applicant \u2019s opinion , her statements were not value judgments , but statements of fact . Having regard to the statutes of the associations and other evidence before it , ORG considered that the applicant \u2019s statements had proved to be untrue . The applicant had disseminated unfounded assumptions as proven fact and had therefore acted negligently . As the damage to the plaintiff associations\u2019 earnings and livelihood was manifest , the ORG granted the requested injunction under LAW .","On DATE the applicant appealed . She submitted that ORG had failed to take the evidence requested by her . She contended in particular that the real activities of the plaintiffs and their ( totalitarian ) methods could not be seen from their statutes . In particular , the internal organisational structure ( hierarchical structure ) , their conduct against critics ( exhibiting a totalitarian character and an ideology with fascist features ) and the effect on the personality of the persons concerned ( loss of identity and submission to the group ) should have been examined . Only a report by an expert using sociological and psychological methods , or interviews with the persons affected , could have clarified these issues . In any event , the applicant \u2019s statements were value judgments made in the context of a political debate and not statements of fact . The injunction therefore violated her right to freedom of expression under LAW .","On DATE ORG ( Oberlandesgericht ) upheld ORG decision in so far as it concerned the prohibition on repetition , but quashed the order for a retraction and its publication .","It confirmed ORG view that the applicant \u2019s allegations were statements of fact . Contrary to the opinion of ORG , ORG considered that the applicant \u2019s allegations amounted to an insult and fell not only within the scope of the second but also within the scope of the first paragraph of LAW . In that case , the applicant had to prove the truth of her allegations .","With regard to the applicant \u2019s complaint that ORG had refused to take the evidence she had proposed in order to prove that the plaintiffs were sects , ORG found that such evidence was irrelevant to the proceedings . According to ORG legal point of view , the applicant \u2019s statements had to be seen as a whole . Thus , the use of the term \u201c sect \u201d was not decisive , but the allegation of fascist tendencies was of primary importance . This latter statement amounted to an insult going beyond justified criticism . Since the applicant had not offered any evidence with regard to this definition of a psycho - sect , but only with regard to the question whether the plaintiffs were sects , she had failed to prove its truth , as required by LAW . ORG also found that the request for a retraction of the statement and its publication in several newspapers had to be dismissed because the plaintiffs had failed to specify the addressees of the retraction , even though the applicant \u2019s statements had been reported in the newspapers .","On DATE ORG ( Oberster Gerichtshof ) rejected as inadmissible the applicant \u2019s further appeal on points of law ( Revision ) . It confirmed , however , that the statements such as \u201c fascist tendencies \u201d or \u201c totalitarian character \u201d were statements of fact which the applicant had failed to prove . Referring to its previous case - law , it stated that disparagement by means of untrue statements , even though it was made in the course of a political debate , went beyond acceptable political criticism and could not be justified by a weighing of interests or by the right to freedom of expression .","Article CARDINAL of LAW ( Allgemeines B\u00fcrgerliches Gesetzbuch ) provides as follows :","\u201c ( CARDINAL ) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation .","( CARDINAL ) The same applies if anyone disseminates statements of fact which jeopardise another person \u2019s credit , income or livelihood and if the untruth of the statement was known or must have been known to him . In such a case the public retraction of the statement may also be requested ... \u201d","Members of ORG enjoy a limited parliamentary immunity . They are exempt from legal proceedings for anything said by them in the course of debates in ORG in so far as ORG sits as ORG CARDINAL , DATE and CARDINAL of LAW ) . However , this privilege does not extend to sessions of ORG sitting as the local council . The reason is that GPE , under LAW , has a dual function , being at the same time a Land and a local council ( LAW ) ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105985","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2011,"docname":"POLEDNOV\u00c1 v. THE CZECH REPUBLIC","importance":3,"conclusion":"Inadmissible","judges":"Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by PERSON V. GPE , of ORG . The respondent Government were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","After the NORP coup in DATE , a number of political trials were conducted in former GPE in order to consolidate the power of the NORP party and eliminate opponents of the new totalitarian regime . ORG ( PERSON ) and ORG were created for this purpose by a special law and subject to direct political control by the party . The most important trial was the DATE trial of Ms Milada PERSON and other opponents of the communist regime for high treason and espionage , and the applicant was appointed to act as a member of the prosecutorial steering group . It was later established that the trial had been manipulated in that the issues of guilt and sentencing had been decided on by the political authorities well in advance of the trial and that the defendants had been compelled , by means of inhuman investigation techniques , to admit to offences they had not committed . The trial culminated in a ORG judgment of CARDINAL DATE by which CARDINAL of the defendants were sentenced to death and the others received lengthy prison sentences . After having their appeal dismissed on DATE by ORG ( PERSON ) , the CARDINAL persons sentenced to death were executed on DATE .","On DATE , in a climate of political d\u00e9tente , the Presidium of ORG quashed the convictions of CARDINAL and DATE following an appeal in the interests of the law lodged on behalf of those convicted . On this occasion it was found that the investigation had been carried out , using illegal methods , by investigators of ORG and not by the investigating judge . It was also found that many legal provisions ( in particular those of LAW no . CARDINAL ) ) had been infringed during the trial , that the facts had not been sufficiently established , that numerous pieces of evidence had been omitted , that the GPE actions had been partly incited by ORG and that all the relevant authorities had single - mindedly focused on fabricated charges aimed at eliminating the so - called \u201c class enemies \u201d . ORG therefore ordered the competent prosecutor to re - examine the case ; consequently , evidence was heard from several persons who had participated in the trial with PERSON . It appears from a statement made in DATE by CARDINAL of the defendants sentenced to life imprisonment that the accused had been forced , through physical and psychological coercion , to learn their statements of evidence , which had been written beforehand , off by heart ; that the confrontations at the hearing had been previously prepared in TIME detail and that TIME of the hearing had in fact been a script which determined the exact questions to be asked by the prosecutors and the answers that the defendants were expected to provide . This witness also reported that the applicant had displayed a hard and pitiless attitude .","Renewed consolidation of the communist regime in DATE meant that there was no further interest in investigating the case and it was discontinued in DATE because the criminal prosecution was time - barred .","The case was not definitively settled until after the collapse of the communist regime in DATE . On DATE the Prosecutor General ruled that there was no case to answer in respect of all those charged . Referring to the judgment of CARDINAL DATE , he found that they had been wrongfully convicted of actions which were in accordance with the principles of a NORP society and that the criminal proceedings had been designed , for political ends , to arbitrarily eliminate opponents of the totalitarian dictatorship under the communist regime .","On DATE the police questioned the applicant about her participation in the trial of PERSON and others . She claimed to be unable to remember certain facts and stated that at the time she had been convinced , having trusted the judgment of the other , more experienced prosecutors and judges , that the activity concerned was designed to undermine the Republic .","On DATE criminal proceedings were instituted against the applicant for acting as an accessory to murder ( \u00fa\u010dastenstv\u00ed na vra\u017ed\u011b ) . She was accused of having acted as a prosecutor in the political trial of PERSON and others in DATE .","On DATE the applicant appealed against this decision , arguing that the authorities had not specified which of her acts or omissions constituted the offence in question , for which mens rea was required . She emphasised that the situation of that time should not be viewed emotionally merely because mindsets had changed since then , and that it would have to be proved that she had committed a criminal offence under the law applicable at the material time .","According to the applicant , the decision to open the above - mentioned proceedings was set aside following her complaint , and the police were ordered to reinvestigate the case . She submitted that as soon as the police knew that a prosecution for acting as accessory to murder would be time - barred , new criminal proceedings were brought against her in DATE for the offence of murder .","It is clear from the case file , however , that the new decision to bring criminal proceedings , taken by the police on DATE , still concerned the offence of acting as an accessory to murder under LAW ( Law no . CARDINAL ) . The applicant appealed against this decision , claiming that at the time of the trial she had been a mere student , answering to a higher - ranking prosecutor , and that she had not been able to work independently . She claimed that the charge she was facing was imprecise and did not specify either her intention to commit the offence or in what way she had broken the laws of the time . She also maintained that she had not participated in the investigation and that the investigation file had convinced her of the guilt of the defendants , who had spontaneously confessed during the hearing . She felt it normal to have been present at preparatory meetings , as they were preparing for a public trial , and stated that she had followed the instructions of her supervisors . During her questioning by the police on DATE the applicant exercised her right to silence .","On DATE the applicant \u2019s lawyer inspected the file , added some press cuttings from the time of the events and requested that the case be discontinued on the grounds of lack of evidence indicating that her client was guilty . She subsequently asked that the evidence be supplemented by any that might prove the applicant \u2019s intention to commit the crime in question and expressed surprise at the fact that proceedings had been brought only in DATE , when all of the other participants were deceased .","On DATE the prosecutor allegedly informed the applicant , before formally charging her and without further explanation , that her acts were henceforth to be classified as murder committed as a joint principal ( trestn\u00fd \u010din vra\u017edy ve spolupachatelstv\u00ed ) .","In DATE the applicant submitted documents to the court attesting to the fact that , having been in DATE of legal studies at university at the time of the trial , she had been under the instructions of her supervisors and could in no way influence the course of events . She also argued that the provisions of LAW that she was accused of having infringed were very general and concerned only the due diligence of the proceedings , and that the charge against her was not founded on any actual responsibility on her part .","On DATE the applicant requested that the hearing be held without her attendance , for health reasons , and exercised her right to silence on the ground that she had already communicated her comments to the authorities .","DATE ORG ( PERSON ) held the hearing in the absence of the applicant , who was represented by a lawyer . Her deposition was read out , along with many other written documents , and audio and visual recordings of the trial were projected . In response to counsel for the applicant \u2019s objection that the defence had not yet had the possibility of giving their views on the charge and the evidence read out in court , the court observed that , according to LAW , that right was reserved solely for the defendant herself . At the end of the hearing the applicant \u2019s lawyer did not file a motion to submit additional evidence and delivered a closing address , noting that the criminal proceedings could have been instituted at the time of the judgment of CARDINAL DATE and that the proceedings brought against the applicant , as the sole survivor , were possible at present only because the limitation period had been changed after DATE . The lawyer admitted that her client had , in participating in the trial , shown her loyalty to the communist regime , but emphasised that at the material time ORG , together with the ORG , had run everything , and that the psychosis in society had turned into a general acceptance of breaking the law . However , the prosecution had not presented any real evidence proving the criminal responsibility of the applicant . Indeed , having had no legal training at the time , she had not been in a position to understand the shortcomings of the trial , particularly since ORG had been directly run by ORG , and had been in no position to influence or change the course of the trial . By taking part in the drafting of the charges and the assessment of the trial the applicant had merely been following the orders of her more experienced supervisors and she had not proposed a sentence in her written submissions . Moreover , no minutes existed from any political meeting bearing the applicant \u2019s signature as a sign of her attendance .","On DATE ORG found the applicant guilty of murder under LAW ( in force at the time of the judgment ) , committed jointly with the other prosecutors and judges involved in the aforementioned trial and since deceased , and sentenced her to DATE imprisonment . The court considered it to be proven that , having participated in the trial in DATE of PERSON and others as a member of the prosecution , the applicant had acted in breach of DATE Code of Criminal Procedure in force at the time , as she had been aware of the fact that the questions of guilt and sentencing had been decided on by the political authorities well in advance of the trial , which she knew had been designed only to confer an appearance of legality on the physical elimination of the defendants . The court held that the applicant \u2019s defence , submitted by her lawyer in court , had been refuted by the evidence taken . Among this evidence , in particular , were written documents bearing witness to the fact that the trial had been prepared by ORG and the ORG with the help of ORG and a group of prosecutors within which the applicant , having already proven herself during other political trials , had acted as a \u201c people \u2019s prosecutor \u201d . They showed that the scripted trial and TIME had been prepared in advance by ORG , that the case file of the prosecution had been subject to political approval , that counsel for the defence , the prosecutors and the judges had been instructed by ORG as to how the trial should unfold and that political meetings at which the applicant had been present had taken place DATE after the hearing . The file also contained a written assessment of the trial , signed by the applicant , which emphasised the importance of the political investigations and commended the very good cooperation with ORG . ORG also had at its disposal an appeal in the interests of the law lodged on behalf of the defendants in DATE , which had led to a ORG judgment on DATE . The court considered that this evidence proved that the DATE trial had been manipulated to the point where it amounted in fact to a quadruple murder carried out through the justice system and that the applicant had made a significant contribution to it by failing to comply with , among other provisions , Articles CARDINAL , DATE and DATE of LAW of the time relating to the authorities\u2019 obligation to look for incriminating and exonerating evidence , to protect the interests of the ORG and to establish the truth by all available methods . ORG held that , at the time , the applicant should have known that the death sentences imposed had not been a legal measure and that , jointly with others , she had contributed to conferring an appearance of legality on the political trial in question , and consequently to the murder of CARDINAL people on the basis of their political beliefs . Given that under LAW , which had been in force at the time of the offence , murder was punishable by the death penalty , the court held that the charges against the applicant should be classified as murder under LAW , which was more favourable to her . Although the Code provided for a DATE limitation period , it was also necessary to take into account section CARDINAL of Law no . CARDINAL\/CARDINAL on the Illegality of ORG , which suspended the limitation period between CARDINAL DATE and CARDINAL DATE when political motives incompatible with the fundamental principles of a democratic legal system had thwarted a conviction or acquittal . In the present case , therefore , the offences with which the applicant was charged were not time - barred . Taking into account the extenuating circumstances ( the applicant \u2019s subordinate status and her law - abiding life ) , the amount of time that had passed since the offence had been committed and since she could have first been prosecuted , her age , the state of her health and her degree of involvement in the offence ( less than that of the renowned judges and prosecutors ) , the court imposed a lesser sentence on the applicant than the normal minimum .","The applicant lodged an appeal , arguing that under the original legislation , which was more favourable to her , the offence was time - barred ( as in a similar case concerning the prosecutor PERSON which ended with the charges being dropped ) . She also complained that the rights of the defence had not been respected , alleging that the court had not taken into account the closing address of her lawyer , who , moreover had not been given the opportunity to comment on the criminal charge or the evidence , and that the court had not responded to the submissions of the defence in any way . Furthermore , she deemed evidence consisting of an anonymous letter from a former prison guard , which had prejudiced her in the eyes of the court and the public , to be illegal . In her opinion , there was no evidence to prove that she had intentionally participated in the murder of CARDINAL people based on their political beliefs , that she had knowingly been part of a plan designed to eliminate enemies of the regime regardless of the established facts , that she should have known that the judges had been influenced or that she had taken part in meetings with the political authorities . The applicant criticised the court for not taking into account the fact that , at the time of the events , she had only completed DATE of preparatory legal studies and had been a DATE law student , which did not enable her to understand all of the circumstances surrounding the trial , let alone any potential political manipulations .","In a judgment of DATE delivered in closed court , ORG ( Vrchn\u00ed soud ) quashed ORG judgment on appeal and discontinued the proceedings on the ground that the limitation period had expired . The court observed firstly that no significant procedural defects had occurred in the proceedings before ORG , that all the evidence necessary in order to elucidate the facts had been properly taken and decided on by the judges and that the court had explained its reasoning as well as the elements supporting its findings . ORG did not therefore agree with the applicant \u2019s opinion that her guilt had not been proven and found it established that the questions of guilt and sentencing had been decided on before the trial had even begun , that the applicant had taken part in it as a \u201c people \u2019s prosecutor \u201d even though she had not yet finished her studies at university and that she must have been aware , at least broadly , that the provisions of LAW of the time were being breached . The court also rejected her submission that the rights of the defence had not been respected . In this regard it noted that when defendants waived their right to appear before the court , they also waived the right to comment on the evidence taken . Furthermore , when a defendant was not present at the hearing but his or her lawyer was , the right to comment on the evidence and the charges was exercised through the closing address , which was what had happened in this case .","ORG nonetheless held that ORG had not given the aforementioned correctly established facts the appropriate legal classification . It did not accept ORG opinion that LAW was more lenient than LAW , applicable at the material time . Taking into account , in the light of the principle of individual criminal responsibility , the ancillary and limited role of the applicant , the court held that she could not be considered as having committed murder as a joint principal . The court remarked in this regard that the political system of the time had created a mechanism which fabricated political trials and was operated by political leaders ( in particular the secretariat of ORG ) , the security services ( ORG and NORP advisers ) and the judicial service ; judgments were therefore predetermined . Thus , in the chain of command of those who had participated in the trial of PERSON and others , the prosecutors had played a part which was key to the trial but not decisive for its outcome , and the applicant had been at the end of this chain . An objective assessment of her role therefore led to classifying her actions not as murder committed as a joint principal but rather as acting as an accessory to judicial murder , as in the preliminary proceedings . Under LAW , such acts could be classified only as indirect participation in ordinary murder , carrying a sentence of DATE in prison and with a DATE limitation period . In these circumstances , even having regard to section CARDINAL of Law no . CARDINAL\/CARDINAL , the limitation period had expired on DATE , and since the proceedings in question had been brought after that date there was no case to answer .","An appeal on points of law against ORG ruling was lodged by ORG , who argued that the present case did not concern indirect participation in murder , but murder committed jointly , an offence which , under LAW , was punishable by the death penalty and not subject to a limitation period . In the prosecutor \u2019s opinion it was therefore necessary to apply LAW , which was more lenient as it did not provide for the death penalty and fixed the limitation period at DATE . Under section CARDINAL of Law no . CARDINAL\/CARDINAL , the limitation period therefore ran from DATE to CARDINAL DATE .","The applicant objected to the grounds of the appeal and consented to it being heard in camera .","Nonetheless , on DATE a public hearing took place before ORG , in the absence of the applicant , who was represented by her lawyer . The latter commented on the appeal , without requesting leave to add to the evidence , and asked the court to uphold the finding that there was no case to answer for lack of evidence proving that his client had been aware of the manipulation and that she had intended to infringe the procedural provisions .","After this hearing , ORG quashed the judgment of DATE and ordered ORG to give a new decision , respecting its binding legal opinion . In ORG opinion , to find the correct legal classification in this case , it was necessary to compare the applicant \u2019s involvement in the trial with the immutable ethical standards required of a prosecutor . In this regard , the court referred to its decision no . CARDINAL Tz CARDINAL\/CARDINAL of DATE which defined the conditions in which a judge could be held criminally responsible for the murder of innocent people sentenced to death . In view of these principles , applicable mutatis mutandis to prosecutors , the actions of the applicant , who had taken part in the fraudulent manipulation of legal proceedings designed to eliminate opponents of the communist regime , had been completely unethical . As ORG had established , the case was about a political trial the outcome of which had been decided in advance by the political organ of ORG together with ORG . All those who had agreed to take part as judges and prosecutors were in a similar position , that of key enforcers of the will of a political organ , and there was no convincing reason for differentiating between them in terms of criminal responsibility . The fact that the applicant had been chosen after having proved herself in other political trials , had been a member of the main group of prosecutors which had prepared the prosecution , had taken part in the political meetings and delivered the prosecutor \u2019s closing address , had signed the assessment of the trial and had taken part in the execution of those convicted showed to what extent she had identified with the aim of the trial , namely the physical elimination of innocent victims . Given that the trial , ending in the sentencing to death and execution of the defendants , had constituted the murder mechanism , it was correct to conclude that the applicant , as a prosecutor , had actively participated in the joint commission of the murder and had thus committed a crime which , according to LAW , was punishable by death and hence had no limitation period . It was ORG opinion that the High Court \u2019s decision was therefore founded on an erroneous legal assessment of the facts and that the conditions for finding that there was no case to answer had not been met . Given that the DATE LAW , which was more favourable to the applicant , provided for a limitation period of DATE ( suspended between CARDINAL DATE and DATE ) , the proceedings in the instant case were not time - barred .","Having agreed to the applicant \u2019s request that the hearing , planned for DATE , be postponed , ORG held a public hearing on DATE in the courtroom of ORG , the city where the applicant resided . The latter attended the hearing with her lawyer and commented on her case by describing her childhood and her experience of the war and by maintaining that her participation in the trial of PERSON had been presented to her as an opportunity to work with and learn from some excellent lawyers . She had not been aware of any manipulation having occurred , had never spoken to the defendants and had trusted the judgment of those more experienced than herself .","At the end of the hearing , the Prague High Court quashed ORG judgment of CARDINAL DATE and found the applicant guilty of ordinary murder as a direct participant within the meaning of LAW ( a ) of LAW , for which she was sentenced to DATE imprisonment . After reiterating its previous findings on the absence of irregularities in the proceedings before ORG , ORG , bound by the legal opinion of ORG and its reasoning regarding the responsibility of the applicant , concluded that the latter had been directly involved in the murder by having participated in a trial breaching Articles CARDINAL , DATE , DATE and others of DATE , breaches of which she must at least have been broadly aware . Under LAW the offence had no limitation period , whilst the DATE LAW provided for a limitation period of DATE ( suspended between CARDINAL DATE and DATE , by virtue of LAW no . CARDINAL\/CARDINAL ) . The criminal proceedings were therefore not time - barred in either case at the time of their instigation in DATE . Given that under LAW the above - mentioned offence carried a maximum sentence of DATE imprisonment when DATE had passed since the events , whereas the DATE LAW provided for a life sentence , it made sense to sentence the applicant under LAW . In doing so ORG took into account the extenuating circumstances ( the applicant \u2019s law - abiding life , the fact that she had committed the offence de facto by obeying orders , the amount of time that had passed since the offence had been committed , the age and health of the applicant and the part she had played in the trial ) , and determined that the sentence should be shorter than the normal minimum .","On DATE the applicant lodged an appeal on points of law with ORG , complaining of the media uproar , the defence \u2019s inability to comment on the evidence taken , the court \u2019s reading of an anonymous letter from a former prison guard supposedly describing her behaviour during the execution of those convicted , and the application of the principle of collective guilt ( without distinguishing between people according to their function and their ranking in the hierarchy ) . She submitted that the guilty verdict against her was contrary to LAW hereinafter \u201c the LAW \u201d ) since an analogous case against GPE , a former military prosecutor , had been discontinued on DATE because it was time - barred , a decision upheld by ORG on DATE . She also argued that the verdict had relied on a mere moral conviction , as a substitute for the lack of evidence refuting her defence ; however the case had to be approached not solely from a moral and ethical perspective , but also from a legal one . Finally , the applicant submitted that it was unacceptable and against the principle of independence of the courts that ORG , bound by ORG legal opinion , should have been influenced , in this regard , in establishing the facts and examining the evidence .","After a request by the applicant that her appeal be considered by a different panel to the one having already ruled on the appeal lodged by ORG , it was decided on DATE that the panel would not withdraw from examining the case .","On DATE , after a session held in camera ( to which the applicant had consented ) , ORG dismissed the appeal for lack of grounds . It noted firstly that in its judgment of DATE it had given the High Court no instructions as to the establishment of the facts or the assessment of the evidence , having limited itself to commenting on the legal assessment of the established facts and the application of the DATE LAW . This assessment had in no way been influenced by the media coverage of the criminal proceedings or by the reading of the anonymous letter , on which ORG had in any case not relied in its findings . ORG also rejected the argument relating to collective guilt , finding that it was only in cases where justice functioned normally that there was cause to distinguish between judges and prosecutors . However , given that in the trial of PERSON and others the judges and prosecutors had all contributed to the pursuit of a political objective , which was to physically eliminate the victims , by conferring an appearance of legality on it , the responsibility borne by the applicant , although less than that of the judges , was not so different that it was incomparable . The court went on to find that the objection that the applicant \u2019s criminal responsibility was based solely on ethical or moral failings was unfounded , stating that the applicant had been responsible for illegal conduct which infringed the provisions of the CARDINAL Code of Criminal Procedure . Concerning the violation of LAW of the LAW alleged by the applicant with reference to the GPE case , ORG stated that it was not its place to assess the judgment in a case concerning a different defendant , different facts and different criminal legislation , when the binding nature of the judgment referred to was limited to the case in question . The fact that ORG had not taken this decision into account in the applicant \u2019s case could not amount to a breach of Article CARDINAL \u00a7 CARDINAL of the LAW , which in any case was not applicable to specific judicial decisions .","In DATE the applicant began to serve her prison sentence .","On DATE the applicant challenged ORG decisions of DATE and DATE , as well as ORG judgment of DATE , in a constitutional appeal in which she relied on Articles CARDINAL \u00a7 CARDINAL , CARDINAL and CARDINAL of the Charter . She complained of the application of the principle of collective guilt and the admission into evidence of the defamatory anonymous letter . She also argued that the contested judgments had not specified which evidence was meant to have proved that she had been aware that the trial had been manipulated , and that it was not possible to commit murder either through ethical or moral failings or by infringing the provisions of LAW . She further complained of the fact that ORG , in its decision of DATE , had given instructions to the High Court regarding the assessment of evidence and of ORG subsequent failure to further investigate the case or hear evidence from the applicant , allowing her only a closing address . Referring once again to the GPE case , the applicant objected to the ORG findings as to which legislation was more favourable to her . Finally , she questioned the reasons for not having initiated proceedings earlier , when other participants in the trial would still have been alive and when she could have more actively defended herself . She believed that the courts had been influenced in the instant case by the objective of convicting her , as she was the last survivor of the trial in question .","On DATE ORG ( PERSON ) dismissed the appeal as manifestly ill - founded in that the applicant had failed to prove that there had been a violation of her fundamental rights . It found firstly that the applicant \u2019s claims before the court were identical to those which had been put forward in her appeal on points of law , on which ORG had duly ruled ; the applicant was therefore just pursuing the same claim and was treating ORG as a court of fourth instance . Agreeing with the other courts\u2019 view that there was no need to differentiate , for the purposes of criminal responsibility , between the different persons who had taken part in the trial , the ORG noted that the other courts had nonetheless considered the applicant \u2019s individual conduct . The decisive legal findings had been reached on the basis of facts which had been established by ORG with the help of numerous items of written evidence , as stated in its judgment . These documents , the authenticity of which had not been challenged by the applicant , named the applicant as having taken part in the political meetings and included an assessment of the trial signed by her . In response to the applicant \u2019s claim that ORG had not accepted her deposition , ORG referred to the courts\u2019 reasoning regarding the consequences of the applicant \u2019s request that the hearing in the court of first instance take place without her . It also noted that ORG had adequately considered the closing address made for the applicant and that therefore her right to address the court had not been infringed . Moreover , ORG had no obligation to approve every motion to take evidence . Concerning the anonymous letter , ORG found that it was unnecessary evidence as the courts had not based their decisions on it and thus had not had to assess it . The applicant \u2019s allegations about the influence of the media on the outcome of the proceedings were described as vague and hypothetical . ORG also upheld ORG decision of DATE , in which the latter had merely expressed its opinion on the correct legal classification of the facts which had been established up until that time . The decision had therefore not bound ORG in any way in terms of the facts . Concerning the applicant \u2019s claims that she could not have committed murder , the court referred to the findings of the lower courts according to which the applicant had misused her role as a prosecutor and had not fulfilled it in accordance with the legal provisions , and had thus actively participated in the murder as a joint principal . ORG also considered it impossible to interpret LAW as not applying to certain methods of committing murder , such as a manipulated trial infringing the procedural provisions ; such an interpretation would guarantee impunity for murders committed through manipulated trials , which would be tantamount to the ORG renouncing the protection of life . In ORG opinion , the courts had , moreover , sufficiently explained why they had considered the DATE LAW to be more favourable to the applicant , even with regard to limitation periods . From a constitutional perspective it was irrelevant that the criminal proceedings against GPE had led to a different result ; as ORG had already stated , LAW could not be relied on in that context . Finally , the question of why the criminal proceedings had not been brought earlier was considered to be speculative and abstract . ORG therefore held that the interpretation and application of the law by the courts and their conduct of the proceedings had not exceeded the limits of constitutionality .","On DATE the Hradec Kr\u00e1lov\u00e9 Regional Court ( PERSON ) decided of its own motion that CARDINAL presidential amnesties , from DATE , DATE and DATE , were applicable to the applicant , each of which took DATE off her prison sentence . However , this decision was set aside on DATE by ORG , which ruled that only the DATE and DATE amnesties were applicable to the applicant and that it was appropriate to grant her a pardon in respect of DATE of her sentence in total . In this decision , ORG referred to other criminal cases where it had been established that the DATE amnesty did not apply to persons convicted of murder .","On DATE the applicant \u2019s lawyer was informed that ORG had not agreed to her request that an appeal in the interests of the law be lodged on her behalf .","On DATE the President of GPE pardoned the applicant in respect of the rest of her sentence . She was released DATE .","Article CARDINAL guaranteed the right to individual liberty and no one was to be deprived of that liberty except by law .","LAW provided that no one could have proceedings brought against him or her except in cases provided for by the law , and only by a court or authority competent under the law and in accordance with a procedure prescribed by law .","Under Article CARDINAL , all holders of public authority had to conform to the laws and regulations of the people \u2019s democratic regime during the exercise of their functions and powers ; any agent of the public authorities failing to fulfil this obligation was to be punished by law .","Under LAW , any person who acted against another with the intention of causing his or her death and in a way which led to his or her death was guilty of murder .","According to LAW , the death penalty was to be imposed not only on the person who carried out the murder , but also on any person who had ordered it , had laid hands on the victim during the murder or had acted as a joint principal during it .","Article CARDINAL provided for sentences for accomplices to and indirect participants in the murder .","Under Article CARDINAL , offences punishable by the death penalty were not subject to limitation . However , where the offence had been committed DATE before the criminal proceedings were brought , this provision stipulated that the accused could only receive a sentence of between CARDINAL and twenty years\u2019 imprisonment .","Article CARDINAL required the competent criminal authorities to duly consider all the circumstances which might incriminate the accused as well as those relevant to his or her defence , and to inform the accused of his or her rights .","Pursuant to LAW , members of the prosecution were required , within their areas of competence , to defend the well - being of the ORG and act independently of the courts .","Under LAW , prosecutors were required to prosecute of their own motion all offences brought to their attention and to ensure that the investigation was carried out before the competent court and that the persons responsible were punished . They also had to ensure that all methods capable of leading to the discovery of the truth were correctly employed . They had the right to consult files , obtain information about the progress of investigations and formulate appropriate proposals . If they noticed any irregularities or delays they were required to take measures provided by law to remedy them .","LAW provides that any statutory restriction of the fundamental rights and freedoms must apply equally to all cases meeting the conditions laid down .","Under LAW , everybody is entitled to respect for his or her human dignity , personal integrity and good reputation , and to the protection of his or her name .","Articles CARDINAL to CARDINAL guarantee the right to an independent and impartial court , a fair and public trial held without unnecessary delay , the rights of the defence and the principles of the presumption of innocence and of penalties being strictly defined by law .","Article CARDINAL provides that , after taking each item of evidence , the judge must ask the defendant if he or she wishes to comment on it . The defendant \u2019s comments must appear in TIME of the proceedings .","Under LAW , the limitation period for prosecuting offences is suspended between CARDINAL DATE and DATE if a legally effective conviction or acquittal did not take place owing to political motives incompatible with the fundamental principles of a democratic legal system .","In this decision , ORG considered the possibility of prosecuting a ORG judge , who had sentenced innocent people to death in another political trial in DATE , for murder . Noting that , at the time of the trial , the LAW and laws in force had established rules aimed at ensuring that judges could decide in an independent , impartial and fair manner , ORG held :","\u201c Even if we must take into account the departure , in reality , of judicial practice from these principles due to the external influence of the executive bodies and the prosecution , it is unacceptable to conclude that judges did not bear responsibility for their decisions . Being in the role of a judge is never purely a matter of applying the law ... but is based first and foremost on ethics . This ethical basis is characterised by certain immutable ethical standards ... even though they are not codified . In order for a judgment to be fair ... and constitute an act of justice , certain principles , which must be respected regardless of the external political situation , must incontestably form part of these unwritten rules . Whilst recognising that the notion of justice is always , in some way , dependent on the conditions of the historical context or the time , the ORG remains nonetheless convinced that , at the very least , certain fundamental ethical requirements can be formulated , applicable to the notions of justice and fair judgment that are not subject to such temporal conditions .","To be considered fair , a sentence must at the very least fulfil the requirement of punishing the convicted person for an offence actually carried out by them . The judgment must truly be the result of the trial preceding it . The proceedings leading up to the judgment must not be mere formal , insignificant precursors to a predetermined decision . The judgment must genuinely result from the court \u2019s work and not be imposed from the outside , in other words by institutions outside the judicial system such as political bodies , the executive , etc . The court \u2019s decision - making process must involve distancing itself from any vested interests in the outcome of the proceedings , including political interests . The judgment must not have the sole objective of becoming a tool in the political struggle conducted by CARDINAL part of society against the other . It must not be a simple act of elimination of individuals or groups of individuals in the context of such a struggle .","The value of these rules lies in the fact that if judges do not abide by them , they deeply betray the fundamental ethical principles of their vocation , regardless of the reason , even if for example they have succumbed to political influence . If , when making their decision , judges are exposed to influences that are contextual or specific to the time , they must not forget that this decision must stand even after those influences are gone . Judges must be aware that , even later , their decisions must fulfil the fundamental requirements of justice .","If a person \u2019s life is taken as a result of a decision sentencing him or her to death , the question is : when does that judgment constitute a criminal offence , when is it an abuse of power by the judge , and when is it what is known as judicial murder ? Although this question is very difficult to answer , it is not impossible . We must first identify a certain hierarchy of the unlawful elements in the judgment .","There can be times when a judgment is the result of proceedings which have been duly conducted and are based on the assessment of concrete evidence , the issue of guilt or innocence having simply been the subject of differing opinions throughout the various judicial proceedings .","At other times , a judgment may be the result of irregular proceedings where there was insufficient evidence . However these are irregularities which , in substance , testify only to poor decision - making , with no actual intent on the part of the judge to harm the accused . A judgment of this kind is still the result of justice that functions normally .","There can also be cases where a judgment is vitiated because the judge intended to harm the accused or favour someone , but where the judgment was delivered following a trial conducted according to the requirements of proper legal proceedings . Here , the irregular judgment constitutes a substantive breach of the principles of impartiality and objectivity required for exercising the duties of a judge .","The most serious case is that of a judgment given in circumstances devoid of those immutable ethical attributes inherent in the duties of a judge , in particular because","( a ) there was premeditated intent to physically eliminate a person ;","( b ) the judgment was chosen as the tool with which to physically eliminate that person ;","( c ) the judge identified with that aim of the judgment , regardless of the reason ;","( d ) the judge subordinated the way in which he or she conducted the proceedings or participated in the decisions to the objective of delivering , as planned , a judgment amounting to murder ;","( e ) the judge sentenced or participated in the sentencing of the accused with no heed to the course or outcome of the trial ; in reality , the results of the proceedings were not a criterion in determining the judgment DATE on the contrary , the proceedings were adapted to the objective of securing a conviction which amounted to murder ; and","( f ) the accused had no real chance of reversing the premeditated intention to eliminate him , even if , to an outside observer , the proceedings might have given the impression that their content had led to the judgment ( for example if the accused had been coerced into confessing ) .","In these circumstances , the decision to sentence someone can be regarded as a necessary and irreplaceable part of a lethal mechanism . The issue here is not CARDINAL of a mere abuse of power on the judges part , but of murder . That is what is meant in legal terms by judicial murder . The sentencing here is an act that is totally estranged from the ethical foundations on which the duties of a judge rest .","It is thus apparent that in order to decide whether , in the case of a judge , there has been an abuse of power or judicial murder , it is not sufficient to examine the sentence solely in the light of whether or not it is in accordance with the law as a normative act of public authority . The issue can be properly and convincingly resolved only if the sentence is scrutinised in the light of the criteria stemming from the ethical foundations of the office of a judge . ...","It is clear from the circumstances surrounding the adoption of the judgment in case no . CARDINAL Ts II CARDINAL\/CARDINAL of the former ORG that in determining the case , the accused had betrayed the ethics of the judicial decision - making process in an extremely serious way . The judgment had not been an act of justice but an act of elimination of the persons convicted by it . That act of elimination had only the appearance of a judgment ; in terms of its content and values , it had nothing to do with justice . It was a case of the person adopting the judgment not being , in reality , the judge in the case but an assistant to or joint principal with those who , at the time , determined that the objective of the trial would be the physical elimination of the accused . Thus , it would not do to exclude CARDINAL of the forms of criminal responsibility of a person accused of murder . The accused can not exonerate him or herself from that responsibility by referring to the responsibility of others who may have also participated in the physical elimination of those convicted . ... \u201d","In this decision , ORG dismissed an appeal on points of law lodged by ORG to the detriment of the person concerned , GPE In a judgment of ORG , GPE had been found guilty of murder under LAW for having contributed , as a military prosecutor and subsequently an investigating judge , to the unjust conviction in DATE of General PERSON , who received the death sentence . GPE had been accused of , among other things , forging parts of the case file , distorting the minutes of the proceedings , leading the investigation in a way that was not objective and was influenced by NORP advisers , and proposing the death penalty . Following GPE \u2019s appeal , ORG had nonetheless classified the same facts as participation in ordinary murder within the meaning of LAW of LAW in force at the material time , an offence for which that law provided a limitation period of DATE . ORG had therefore concluded that , even taking CARDINAL of PERSON no . CARDINAL\/CARDINAL into account , the limitation period had expired before criminal proceedings had been instituted against GPE on DATE .","ORG noted that ORG and ORG had relied on the same facts and that the significant difference in their legal assessment of those facts was due to the importance and gravity attached to the forging of parts of the case file . Therefore , after having freely assessed the evidence before them , the CARDINAL courts had come to different legal conclusions based on the same description of the facts . In examining the lawfulness of the legal classification decided on by ORG , from the point of view of the legal assessment of the facts , and noting that it was not its place to interfere in the appellate court \u2019s procedural assessment of the evidence , ORG found that the said classification corresponded to the facts described . Consequently , ORG appeal on points of law was dismissed as manifestly ill - founded ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22833","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2000,"docname":"MARLOW v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and living in GPE , GPE .","The applicant , using a pseudonym , published a book about the cultivation and production of cannabis . The book was advertised for sale in CARDINAL magazines . CARDINAL copies were sold . The police obtained the names of various customers , established the identity of the applicant and arrested him .","When questioned by the police the applicant denied that the book was intended to incite buyers to cultivate cannabis . When pressed about the question of encouragement and incitement , the applicant , on the advice of his solicitor , declined to answer questions saying that the questions were \u201c too conjectural \u201d .","The applicant was subsequently charged with CARDINAL offences under LAW DATE ( \u201c the DATE LAW ) . He stood trial before a jury at ORG in DATE . The applicant pleaded guilty to the charges of producing and having in his possession cannabis and not guilty to the charge of incitement to commit an offence under LAW .","The prosecution case was that the applicant \u2019s book amounted to an incitement of those who bought it to cultivate cannabis and was in effect a grower \u2019s guide . The prosecution relied on the fact that when the police raided the homes of a number of buyers , cannabis plants were found being cultivated according to methods similar to those described in the book . According to the prosecution , the applicant \u2019s intention in writing and publishing the book could be inferred from the book itself and from the effect which it had on the purchasers of the book . The prosecution called as witnesses several such purchasers who were found to be using the method advocated in the book ( \u201c the NORP method \u201d ) to grow cannabis .","The applicant \u2019s counsel contended in his defence that his book was a genuine contribution to the debate about the legalisation of cannabis , that it only contained general advice and information freely available elsewhere , that it made it clear that growing cannabis was an offence and that its contents were too remote from the likely actions of those who read it . The applicant relied , inter alia , on the testimony of an expert witness to the effect that many books had been published about the cultivation of cannabis . The expert sought to establish with reference to the contents of those books that the applicant did not intend to incite others to break the law .","According to the applicant , his counsel informed the trial judge that he would not be giving evidence on medical grounds and submitted a medical report indicating that the applicant \u2019s performance in the witness box might be prejudiced on account of the stressful circumstances of his court appearance .","As to the ingredients of the offence of incitement , the judge in his summing up directed the jury that they had to decide whether they were sure that the book :","\u201c may encourage or persuade , or if you like to put it another way , is capable of encouraging and persuading other people to produce the drug cannabis and thus to break the law . The prosecution do not have to prove that it may encourage and persuade , or is capable of doing that , in relation to people who have never grown cannabis before or who had stopped growing cannabis . As I have said , if it may encourage and persuade people to start up again or to carry on and produce more cannabis that would be quite sufficient for proof of the offence . ... If ... you say that it is an encouragement and persuasion , then you must be sure of something else before you can convict the [ applicant ] , and that is that he knew at the time he was disseminating the book that what he was inciting other people to do would be a crime on their part if they did it but that he nevertheless intended to go ahead and do it anyway . It does not have to be proved of course that that was his only intention in publishing the book . It would be quite enough to show that it was CARDINAL of his intentions . ... \u201d","As to the applicant \u2019s silence during police interview and at his trial , the judge directed the jury in the following terms :","\u201c ... You have had a summary of the [ applicant \u2019s ] police interviews from which you know that , although he answered many of the police questions , he declined to answer others . The answers which he gave you will of course give such weight to as you think right . ... Some of the questions in the interview , as I have said , he did not want to answer . He did not want to answer questions on the central question of incitement when the police officers were putting them to him . He was quite entitled not answer questions if he did not want to . He could of course have done so but he had an absolute right not to do so . Where he was silent or said , \u2018 I do n\u2019t have any comment\u2019 or , \u2018 I do n\u2019t want to answer that question\u2019 you must not use that as any evidence that he is guilty or take the view that it makes the prosecution case any stronger than it otherwise would do .","Then there is the question of him not giving evidence in the witness box in court to you . That stands on a slightly different footing . He has an absolute right not to do that but , as he has been told by me through his barrister , the law is that you are allowed to draw any inference , deduction that is , which you think right from the fact that he had declined to go into the witness box and give evidence on oath . The prosecution can not prove their case simply by the fact of his silence . What you should do is ask yourselves whether , on the evidence that you have heard , there is a case against him which calls for an answer from him . If not , if there is not , then his silence would have no significance . But if there is a case against him then you would be entitled to come to the conclusion that the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him or no answer which would stand up to being cross - examined by counsel for the prosecution . You are entitled to use that inference , together with all the other evidence in the case , in concluding that he must be guilty of the charge if that is the inference you choose to draw . But it is entirely up to you to say whether you think it is right to do so or not .","Of course you will also ask yourselves first of all whether there may be any other harmless reason , if I can use that phrase , for his silence . You may think that no such reason is readily obvious and that he is the person in the best position to tell you what his intention was , for example , in producing this book if he thought that it would advance his case to tell you . As I say , it is up to you what inferences you draw , if any . \u201d","Later on in his summing up the judge stated :","\u201c What he has never told you of course or told the police is what other books he knows about or has read , nor has he told you how any such books may have affected his own intentions in writing his own . As I say , he could have done because the question of intention has been very much in issue , but he has not . His counsel has made certain suggestions about that but you may think the person best able to explain all that would have been the defendant himself . ...","The police then pressed him on the question of encouragement and incitement and it was at that point that he asked his solicitor how he should answer ... . \u201d","On DATE the jury by an CARDINAL majority found the applicant guilty of the offence of incitement . The applicant received a DATE prison sentence concurrent on the CARDINAL offences with which he was charged .","The applicant applied for leave to appeal . In his amended grounds of appeal the applicant maintained that the trial judge failed to give the jury a proper direction on the inferences which could be drawn from his silence at the police interview and at his trial . In particular , he alleged that the trial judge failed to inform the jury that there was medical evidence which could explain his silence at the trial . The applicant further stated that the trial judge misdirected the jury on the notion of incitement . The full ORG gave the applicant leave to appeal on the last ground only .","On DATE ORG dismissed the applicant \u2019s appeal . Delivering judgment , Lord Justice Potter , with reference to precedent , considered that the trial judge in his direction should have invited the jury to ask itself whether the book encouraged or persuaded rather than whether it may encourage or persuade or was capable of encouraging or persuading readers to produce cannabis and thus to break the law . However , having regard to the trial judge \u2019s direction as a whole with respect to the defence relied on by the applicant , Lord Justice Potter considered that the jury was properly apprised of the requisite ingredients of the offence . He also rejected the applicant \u2019s contention that sections CARDINAL and CARDINAL of ORG DATE , which set out the offence of incitement , did not refer to the production of cannabis . According to Lord Justice Potter , this was an obvious drafting error and sections CARDINAL and DATE were to be construed in relation to section CARDINAL of the same LAW which criminalised the production of cannabis .","ORG substituted a sentence of CARDINAL months\u2019 imprisonment in respect of the applicant \u2019s convictions for possession and production of cannabis but upheld the DATE prison sentence he received in respect of the offence of incitement .","The relevant domestic law and practice relating to the drawing of adverse inferences from an accused \u2019s silence during police interview or at his trial is described in detail in the ORG v. the GPE judgment of CARDINAL DATE ( application no . CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99313","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2010,"docname":"BENET CZECH, SPOL. S R.O. v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger","text":["The applicant , PERSON , spol . s r.o . , is a limited liability company incorporated under NORP law with its registered seat in GPE . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE criminal proceedings were instituted against a former manager and sole shareholder of the applicant company on the suspicion of having committed tax evasion . Subsequently , prosecuting authorities seized the applicant company 's financial and business documents which were , however , mixed with documents of other companies subjected to the investigation . According to the applicant company , the documents have never been returned to it .","On DATE the prosecuting authorities seized CZK CARDINAL,CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL ) and DATE ( ORG CARDINAL ) deposited on the applicant company 's bank accounts on the suspicion that these assets might have constituted a profit from criminal activities of the manager . The applicant company says that it was not involved in any business transactions investigated by the police and that its former manager is prosecuted for acts which are not in any way related to the business pursued by the applicant company . The criminal proceedings are still pending .","Meanwhile , numerous tax proceedings were brought against the applicant company in regard of the suspected retrenchment . They all were later discontinued as no tax evasion by the applicant company was detected .","On DATE the applicant company requested that the seizure be lifted . Its request was dismissed by ORG ( vrchn\u00ed st\u00e1tn\u00ed z\u00e1stupce ) on DATE . The prosecutor found irrelevant the applicant company 's objection that the tax proceedings brought against it had been discontinued .","On DATE ORG ( vrchn\u00ed soud ) dismissed the applicant company 's appeal .","In its constitutional appeal , the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length . On DATE ORG ( \u00dastavn\u00ed soud ) declared the appeal inadmissible , finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck . The decision was served on the applicant company 's lawyer on DATE .","On DATE the High Prosecutor dismissed the applicant company 's new request for partial lifting of the seizure . ORG upheld this decision on DATE , but on DATE ORG quashed that decision finding a violation of the applicant company 's right to property . It held that the length of the seizure , over DATE , was unreasonable , which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company . On DATE the High Prosecutor lifted fully the seizure of the applicant company 's bank accounts ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91720","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2009,"docname":"WILLIAMS v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE .","The applicant is the mother of PERSON who died , aged DATE , at GPE football stadium .","On DATE , PERSON went to GPE to watch GPE play in the semi - final of ORG at GPE DATE \u2019s football ground , FAC . The kick - off of the match was scheduled for TIME to kick - off there was a huge build - up of supporters outside LOC entrance to the ground which in turn caused pressure on those trying to get into the ground through the turnstiles .","At CARDINAL . Chief PERSON , who was the police officer in charge of crowd control at the match , decided to authorise the opening of the exit gates at the LOC entrance in order to relieve the pressure at the turnstiles . The opening of CARDINAL of the gates , gate C , resulted in a sudden influx of CARDINAL supporters into the ground , the majority of whom continued through a tunnel into the central spectator pens , CARDINAL and CARDINAL . Each of these pens was capable of holding CARDINAL people but both were already full when the gate was opened . The result of the sudden influx was the build - up of intolerable pressure on supporters at the front of the pens .","Notwithstanding the late arrival of supporters , Chief PERSON decided not to delay kick - off . The match started as scheduled at TIME Shortly after the match began , the pressure in the pens intensified and supporters were crushed against the wall at the front of the pens and suffered severe crush injuries . The match was stopped at CARDINAL . At ORG . the first ORG crew arrived . A major incident vehicle was called at CARDINAL . and arrived at CARDINAL . The applicant \u2019s son was certified dead at CARDINAL . CARDINAL supporters died following injuries sustained in the disaster , including the applicant \u2019s son .","On DATE , the then Secretary of ORG for ORG ordered Lord Justice PERSON ( as he then was ) to conduct an inquiry . His terms of reference were :","\u201c To inquire into the events at GPE DATE Football Ground on DATE and to make recommendations about the needs of crowd control and safety at sports events . \u201d","The GPE police were appointed to investigate the incident and gather evidence for ORG and assisted Her ORG for GPE , PERSON , who was to conduct the inquests .","Lord Justice PERSON \u2019s interim report was published on CARDINAL DATE . His final report was published in DATE . Lord Justice PERSON heard oral evidence from CARDINAL witnesses on a wide range of issues leading to the disaster . He also received a number of written submissions . He found that there were a number of causes for the disaster but that the immediate cause was the failure , when gate C was opened , to cut off access to the central pens which were already overfull . Lord Justice PERSON concluded , at paragraph CARDINAL of his interim report , that :","\u201c The main cause of the disaster was the failure of police control . \u201d","On DATE , the Coroner formally opened and adjourned the inquests into the deaths of the CARDINAL victims of the disaster ( the CARDINALth victim suffered severe brain damage that left him in a persistent vegetative state and died in DATE ) . ORG ( \u201c ORG \u201d ) had been asked to consider bringing criminal charges arising out of the incident and the Coroner decided that the inquests could not be completed until the ORG had reached a decision on whether criminal proceedings would be pursued .","In DATE , following consultation with the ORG and a solicitor connected to ORG , the Coroner decided that the inquests could resume on a limited basis . Although the question of \u201c how \u201d the deceased died would be reserved for DATE , the questions of \u201c who \u201d , \u201c when \u201d and \u201c where \u201d could be dealt with before the ORG \u2019s decision . The Coroner recognised that care would have to be taken to ensure no prejudice to any future criminal prosecutions .","Preliminary inquests ( \u201c mini - inquests \u201d ) were held for each of the individuals who had died DATE and DATE . At the mini - inquests , GPE police officers summarised statements relating to each of the deceased , covering the evidence they had gathered in the course of their investigations . The ORG evidence was given orally and on oath . The written summaries themselves were not read in evidence . Evidence was also heard from pathologists who had carried out all the autopsies within TIME of the incident . In the majority of cases , the cause of death was given as traumatic asphyxia and it was said that the individuals would have been unconscious within a matter of TIME and would have died within a matter of TIME thereafter .","On DATE , evidence from a statement made by Special Police Constable ( \u201c SPC \u201d ) PERSON on CARDINAL DATE was summarised at the mini - inquest into PERSON death . PERSON had helped carry PERSON off the pitch into the gymnasium . Her evidence suggested that PERSON was still alive at TIME Her statement indicated that PERSON had opened his eyes and muttered the word \u201c mum \u201d after he had been taken to the gymnasium . A statement from Police Constable ( \u201c PC \u201d ) ORG was also orally summarised at the mini - inquest . His evidence suggested that PERSON was possibly still alive after CARDINAL . PC Bruder reported having seen PERSON after that time have convulsions . PC ORG also thought he had felt a pulse and said in his statement that he had seen PERSON vomit . Despite this evidence , the pathologist considered that PERSON \u2019s death must have occurred before PERSON attended him .","On DATE , PC ORG amended his statement . He accepted that the \u201c convulsions \u201d he had witnessed may merely have been \u201c twitching \u201d . He also accepted that he may have been wrong about feeling a pulse and that while he had thought he saw PERSON being sick , it may have been merely spittle or phlegm .","In DATE , the Coroner was advised that the ORG had decided not to prosecute anyone in connection with the incident . The inquest into the question \u201c how \u201d the deceased died began on DATE . Prior to this , the Coroner advised that he had decided to impose a cut - off time for evidence which he would hear in relation to the incident . Accordingly , he would hear evidence of events which took place before ORG . only . He was of the view that on the pathological evidence available to him , permanent irrecoverable damage had by then been suffered by all the deceased . In reaching this view , the Coroner took into account the interim report of ORG . Counsel for CARDINAL of the families argued against the cut - off point , primarily on the ground that there was evidence to suggest that not all the victims were dead by ORG . He argued that there had been no investigation or systemic analysis of the organisation or planning of the emergency response and what might have made a difference . The Coroner rejected these submissions .","The resumed inquest heard evidence regarding the arrival of supporters , their approach to the football ground , the entrance to the ground and the build - up of supporters , the opening of the gates , the internal layout of the ground and a broken crowd barrier . No evidence was heard during the resumed inquest regarding the emergency response , its planning or its possible effect on the death of PERSON .","The mini - inquests and the resumed inquest heard , in total , CARDINAL witnesses . In summing up , the Coroner left to the jury the verdicts of unlawful killing , accidental death and open verdict . On DATE , the jury reached a majority verdict ( CARDINAL - CARDINAL ) of accidental death in all cases .","Following the inquest , PERSON and PC Bruder both stated that they changed their statements following visits from LOC Police . PERSON claimed that she had changed her statement as a result of harassment by a police officer . Medical evidence prepared in DATE and DATE by specialists at ORG at ORG in GPE and ORG at ORG respectively suggested that the officers may have been correct in their original statements and that PERSON may have been alive after ORG . and even spoken a word or CARDINAL .","On DATE , relatives of CARDINAL of the deceased , including the applicant , were granted permission to judicially review the inquest verdict of accidental death . On DATE , ORG refused to quash the verdict .","The ORG was instructed to consider bringing criminal charges in respect of the incident . In DATE , he decided not to pursue any criminal proceedings .","In DATE , the applicant lost her civil claim for pre - death suffering because the pathological evidence given at the inquest was that none of the deceased would have felt any pain .","ORG ( \u201c PCA \u201d ) appointed the LOC Police to supervise a disciplinary investigation into the conduct of GPE Police officers . In DATE , the ORG directed ORG to prefer disciplinary charges against PERSON , for CARDINAL charge of neglect of duty , and Chief PERSON , for CARDINAL charges of neglect of duty and CARDINAL of discreditable conduct . However , in DATE , Chief PERSON was allowed to retire on health grounds . The disciplinary charges against him were accordingly discontinued as under police regulations , a disciplinary hearing could not proceed when a police officer retired . The ORG decided on CARDINAL DATE to withdraw the charge against PERSON because it considered that it would have been unfair to pursue what was , in effect , a joint charge in the absence of the more senior officer .","Under LAW of LAW DATE , the Attorney General may grant leave to apply to ORG for another inquest to be held . That power can be exercised where there has been insufficiency of inquiry , where new facts have been uncovered or where it is necessary or desirable that a new inquest be held .","In DATE , a first request for leave was made to the Attorney General on the basis of new evidence . This request was rejected in DATE .","In DATE , the Secretary of ORG for ORG ordered a \u201c scrutiny \u201d of new evidence uncovered since ORG . Lord Justice PERSON was appointed to :","\u201c ascertain whether any evidence exists relating to the disaster at FAC on DATE which was not available :","( a ) to the Inquiry conducted by the late Lord PERSON ; or","( b ) to the Director of Public Prosecutions or the Attorney General for the purpose of discharging their respective statutory responsibilities ; or","( c ) to the Chief Officer of GPE Police in relation to police disciplinary matters ;","And in relation to ( a ) to advise whether any evidence previously not available is of such significance as to justify establishment ... of a further public inquiry ; and in relation to ( b ) and ( c ) to draw to their attention any evidence not previously considered by them which may be relevant to their respective duties ; and to advise whether there is any other action which should be taken in the public interest . \u201d","Lord Justice Stuart - Smith received a number of written submissions and evidence in the course of his inquiry . He also heard oral evidence , including evidence from PERSON and PC Bruder . Although he sat in private , his report was published in DATE and set out in detail the evidence and his findings . He concluded :","\u201c I have come to the clear conclusion that there is no basis upon which there should be a further ORG or a reopening of ORG . There is no basis for a renewed application to ORG or for the Attorney General to exercise his powers under LAW DATE . I do not consider that there is any material which should be put before ORG or ORG which might cause them to reconsider the decisions they have already taken . Nor do I consider that there is any justification for setting up any further inquiry into the performance of the emergency and hospital services . I have carefully considered the circumstances in which alterations were made to some of the self - written statements of GPE Police officers , but I do not consider that there is any occasion for any further investigation . \u201d","In DATE , ORG commenced private prosecutions against former Chief PERSON and PERSON , alleging CARDINAL specimen charges of unlawful killing and wilful misfeasance in public office . They were committed to stand trial at ORG on DATE . The trial took place DATE and DATE . PERSON was acquitted on DATE . On DATE , the jury announced that they could not reach a verdict on Chief PERSON and were discharged . On DATE , ORG made an application for re - trial of Chief PERSON . The application was refused on the grounds that he would not get a fair trial .","Following the entry into force of LAW DATE , the applicant made a second request to the Attorney General in DATE to have her case referred to ORG . The application was made on the basis of the alleged insufficiency of the inquiry into PERSON death on the ground that there had been no Article CARDINAL investigation ; and on the basis of new evidence . Her request was refused on DATE .","The Coroner \u2019s Act DATE provides as follows :","\u201c CARDINAL Order to hold inquest","( CARDINAL ) This section applies where , on an application by or under the authority of the Attorney - General , ORG is satisfied as respects a coroner ( \u201c the coroner concerned \u201d ) either\u2014","( a ) that he refuses or neglects to hold an inquest which ought to be held ; or","( b ) where an inquest has been held by him , that ( whether by reason of fraud , rejection of evidence , irregularity of proceedings , insufficiency of inquiry , the discovery of new facts or evidence or otherwise ) it is necessary or desirable in the interests of justice that another inquest should be held . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-112588","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2012,"docname":"CASE OF DRAKSAS v. LITHUANIA","importance":3,"conclusion":"Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Helen Keller;Isabelle Berro-Lef\u00e8vre;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE .","At the relevant time , the applicant was a founding member of the NORP political party , led by PERSON . The applicant was also a member of ORG .","On DATE ORG ( \u201c the SSD \u201d ) intercepted a telephone conversation between the applicant and PERSON ( \u201c PERSON ) ( see GPE v. GPE , no . CARDINAL , \u00a7 CARDINAL , DATE ) , a major contributor to the electoral campaign of the ORG President , PERSON . The tapping of ORG telephone had been authorised by a court . The conversation was as follows :","\u201c PERSON ( ORG ) : So . He [ the ORG President PERSON ] said on television that GPE is n\u2019t on the list of his advisers and wo n\u2019t be included .","PERSON ( GPE ) : Wo n\u2019t be on the list of his advisers ? But I do n\u2019t understand . After all , you always said that [ he would ] .","J.B. : DATE he and I agreed that from DATE I would be on the list [ of advisers to the President ] .","A.D. : I do n\u2019t know anything about this .","J.B. : I am telling you \u2013 that was his promise . So he has been stressed for DATE , because he has already betrayed me . You understand ? He has already sold me . And he is stressed , he is afraid to meet . So I have told him , if by DATE he does n\u2019t fulfil any of his promises - not a single one for what I have done for him - I will begin to recover my money . I will have to go public , do you understand ? ...","A.D. : I do n\u2019t know . I do n\u2019t know . I have n\u2019t heard that , I do n\u2019t know .","J.B. : PERSON , I have recorded everything on tape , the tape will be ready DATE .","A.D. : Damn , I do n\u2019t know that . I do n\u2019t know that . I know that you declared that you would act differently , that you would n\u2019t go to ORG because the salary is low there , that you would n\u2019t manage to earn a living there . I know only that .","J.B. : That was in the press . At his [ the ORG President \u2019s ] request : \u201c Jura , tell that in the meantime you wo n\u2019t go [ to work at ORG ] . And on DATE you will be [ working ] GPE .... That \u2019s why he has already been suffering for DATE , because he has lied on television . And I do n\u2019t know how he is going to walk away from this ... Death to him as to the President . DATE this lie will surface ... That \u2019s why he is restless ...","A.D. : I do n\u2019t know these facts , how can I give you an answer .","J.B. : PERSON , I am not asking you for an answer , I am just emotional , because I do n\u2019t know ... how I should go and talk to him . Because I have to go public and say everything now . Rolandas is such - and - such ... We have agreed with him ... And now : he went to PERSON [ D.K.G. - adviser to the President ] , and [ the President ] has said that GPE wo n\u2019t harass you . I do n\u2019t know what she has told him . So the President , you understand , is a corpse already .","A.D. : If it is easier for you , but you \u2019re behaving improperly .","J.B. : PERSON , I have n\u2019t done anything yet , so far I \u2019ve done nothing . But he has sold me publicly already .","A.D. : Calm down . He has n\u2019t sold you publicly ; he is not that kind of person ... I do n\u2019t know that you are not going to be an adviser . That was n\u2019t discussed openly , there was no such idea , I have n\u2019t heard about that . He has n\u2019t sold you publicly ; I ca n\u2019t imagine he would do that . He is not like that .","J.B. : You see . Such is the fact ...","A.D. : Such fact ca n\u2019t [ be ] ...","J.B. : Maybe you want to see the agreement with his signature ? I \u2019ll show it [ to you ] DATE .","A.D. : I can only repeat what I \u2019ve said .","J.B. : Okay , PERSON , have you called him ?","A.D. : What ? I have called him , but he is n\u2019t picking up his telephone . \u201d","On DATE the ORG applied to the Attorney ORG with a request for the applicant \u2019s telephone to be tapped . The request was based on operational information that the applicant maintained contact with ORG and ORG , both of whom had contributed to the electoral campaign of Mr Rolandas GPE . PERSON worked for a NORP public relations company . Subsequently , ORG was convicted of having threatened the ORG President so that the latter would appoint him as an adviser , grant him NORP citizenship and grant other favours , failing which ORG threatened to disclose certain information which could damage the President \u2019s reputation ( see GPE , cited above , \u00a7 CARDINAL ) . The monitoring of the applicant \u2019s telecommunications also had the goal of establishing the nature of his relationship with a NORP citizen , GPE , who , according to the ORG , had been expelled from GPE in DATE for spying for the former GPE .","DATE the Attorney General requested ORG to authorise the tapping of the applicant \u2019s telephone . The court order was classified as secret , and was not disclosed to the applicant . The Attorney General based his request on the applicant \u2019s \u201c possible participation in smuggling strategic goods and other crimes \u201d . The court granted the request , authorising the measure for DATE . The court order reads :","\u201c on the basis of the material in the case file of the operation it is reasonable to [ tap the applicant \u2019s telephone ] in order to verify his involvement in the criminal activities described in the request : the information in the case file ( the operative information and other data ) confirms that [ the applicant ] could be linked to criminal acts which qualify as serious crimes ; in order to establish all the relevant circumstances other operative measures had already been [ exhausted ] , therefore a supplementary investigative measure [ tapping of the applicant \u2019s telephone ] is to be authorised , pursuant to the rules of the Law on Operational Activities \u201d .","As came to light later on , the request by the ORG was also based on the applicant \u2019s allegedly unlawful involvement in attempts to take over the shares of the road - building company \u201c GPE keliai \u201d .","On DATE the ORG declassified the recording of the telephone conversation of DATE between the applicant and PERSON It sent the recording to the Attorney ORG . DATE , the latter began a pre - trial investigation into threats to the ORG President .","On DATE the recording of the telephone conversation of DATE between the applicant and PERSON was aired by the ORG - run and private national television channels ORG and ORG . The ORG denied any involvement in leaking the conversation to the media .","Having intercepted the applicant \u2019s telephone conversations DATE and DATE , the ORG obtained recordings of his communications with the ORG President , the President \u2019s advisers and the applicant \u2019s business partners . It can be seen from the transcripts of those recordings that the ORG intercepted CARDINAL conversations between the applicant and the head of ORG . CARDINAL of these telephone calls was from the ORG President to the applicant . The transcripts also reveal that the conversations between the applicant and his interlocutors contained some swearing .","On DATE the Attorney General wrote to the director of the ORG . The Attorney General noted that on DATE the media had made known the fact that the ORG had obtained recordings of telephone conversations between the applicant and the ORG President . Such recordings , if they existed , were unlawful , given that LAW of the Law on Operational Activities prohibited any operational activities in respect of the head of ORG ( see \u201c Relevant domestic law \u201d below ) . The ORG was ordered to make sure that the recordings were not made public and were destroyed the same day .","The letter of the Attorney General does not specify whether by that time the content of the applicant \u2019s conversations with the ORG President had already been disclosed to the public .","The letter also read that \u201c noting the illegal practice , which began on DATE , of transfer and making public operational information , the ORG is ordered to adhere strictly to the requirements of LAW and the Law on State Secrets , as well as those concerning Criminal Procedure \u201d . On this point the Attorney General emphasised that classified information obtained during operational activities , as well as data concerning a person \u2019s private life and\/or demeaning to his or her honour or dignity should not be disclosed . Furthermore , once the operational investigation had been terminated and where the information concerning the target of the surveillance activities had not proved to be true , such information had to be destroyed . Lastly , the information collected during a pre - trial investigation was to remain confidential , unless a prosecutor decided otherwise .","On DATE the applicant lodged a complaint with the Attorney General , alleging that the tapping of his telephone had been unlawful . He also complained that his telephone call with the ORG President had been intercepted . The applicant alleged a breach of privacy .","On DATE the Attorney General requested information from the ORG regarding the leak .","On DATE the ORG informed the Attorney General that neither recordings nor transcripts of the applicant \u2019s conversation with PERSON of DATE had been given to the media . It noted that on CARDINAL DATE the transcripts of that recording had been declassified and submitted to the Attorney ORG for the purpose of a pre - trial investigation .","By a letter of DATE , the Attorney General requested the ORG to conduct an inquiry into the leak , as a result of which the applicant \u2019s and PERSON \u2019s telephone conversation of DATE had been aired on television ( paragraph CARDINAL above ) .","On DATE the Attorney ORG informed the applicant that his telephone conversations had been monitored in accordance with the law . The applicant \u2019s conversations with the ORG President had been recorded while the ORG had been tapping the applicant \u2019s telephone , and not that of the President . The operational investigation in respect of the applicant had been terminated on DATE . The applicant was advised to address the ORG in order to obtain the information held on him . To the extent that the applicant complained about the damage he had allegedly sustained by the disclosure of his telephone conversation [ of DATE ] to the media , he was advised to bring an action before the civil courts .","On DATE the ORG wrote to the Attorney ORG that the information gathered pointed to the conclusion that the applicant and other persons were attempting to unlawfully acquire the shares of the \u201c ORG keliai \u201d company . The behaviour of the applicant and his interlocutors could be characterised as extortion of property .","In DATE the applicant attempted to challenge the lawfulness of the court order authorising the tapping of his telephone . On DATE ORG informed the applicant by letter that the law did not provide for an appeal against court orders of that type .","The applicant also wrote to the ORG , requesting it to disclose the results of its inquiry into the leak . He explained that such information was necessary in order to enable him to prepare a civil action for damages . The applicant also requested access to the information on him held by the ORG .","On DATE the ORG replied that the information recorded by the ORG had been declassified and transferred to the prosecutors as evidence in CARDINAL sets of criminal proceedings unrelated to the applicant ( namely , the proceedings against PERSON for blackmailing the ORG President and the proceedings relating to the influence of civil servants in the management decisions of the \u201c GPE keliai \u201d company ) . The applicant was advised that he could obtain access to that evidence with a prosecutor \u2019s authorisation .","On DATE the applicant lodged a complaint with ORG , again challenging the court order of CARDINAL DATE . He argued that there had been no lawful grounds for the tapping , and that his rights under LAW had been breached . The applicant was also critical of the fact that the ORG had intercepted and made public his telephone conversations with the ORG President and PERSON He further complained about the absence of a domestic remedy against the court order authorising telephone tapping , alleging a violation of LAW .","By a letter of DATE , the President of ORG returned to the applicant his complaint without examination . The President stressed that to grant a person the right of access to court orders authorising operational measures and to allow him to challenge such court orders would deprive the secret investigative actions of their meaning . He also noted that LAW did not prohibit secret investigative measures as such , provided that the interference involved was necessary in the interests of national security or for the prevention of crime . Well - reasoned court orders were to guarantee that the investigating authorities acted within the law .","On DATE the ORG informed the Attorney General that in DATE and DATE the applicant and a NORP citizen , GPE , had organised visits by NORP civil servants to GPE and visits by NORP officials to GPE . The applicant had acted in cooperation with the advisers to the NORP President . The applicant also had business dealings with ORG According to the ORG , the applicant had ceased to organise such visits once the NORP media had made public the ORG report \u201c On negative tendencies posing a threat to national security \u201d . The ORG also reiterated that the above facts could be linked to [ unlawful ] attempts to take over the shares of the \u201c ORG keliai \u201d company . The ORG asked the Attorney General to verify the information by way of criminal proceedings .","On DATE the recordings and transcripts of the applicant \u2019s telephone conversations with NORP businessman PERSON , ORG and the ORG President were deposited with the registry of ORG , which was about to hear the ORG President \u2019s impeachment case . The prosecutors did not impose any restrictions on the disclosure of those recordings .","At the hearing of ORG on DATE , some of the recordings were played . Given that the hearing was public and directly broadcast by national television , the conversations were aired .","On DATE the applicant requested the opening of a criminal investigation in relation to the disclosure of the contents of his conversations at ORG hearing . He argued that after the disclosure \u201c none of his foreign partners would want to do business with [ him ] or [ his ] company \u201d .","On DATE the prosecutors refused to open criminal proceedings . They noted that the information had been disclosed during a public hearing at ORG and in accordance with domestic law . A further complaint by the applicant was dismissed by the Attorney General , who observed that disclosure of the applicant \u2019s conversations during the proceedings in ORG was a normal part of the judicial process . Furthermore , the disclosed materials contained no information about the applicant \u2019s private life . By a final decision of CARDINAL May CARDINAL the GPE City Second District Court upheld the ORG decisions .","On DATE ORG found that the ORG President had committed gross violations of the LAW and a breach of his constitutional oath on account of , inter alia , exploiting his official status to influence decisions by the \u201c GPE keliai \u201d company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him . He was also found guilty of having knowingly hinted to PERSON that the law - enforcement institutions were investigating him and tapping his telephone conversations ( see GPE v. GPE [ ORG ] , no . CARDINAL , \u00a7 DATE , DATE ) .","The applicant lodged an administrative complaint against the refusal by the ORG to grant him access to the recordings of his telephone conversations .","On DATE ORG dismissed the applicant \u2019s action as unsubstantiated . The court accepted that pursuant to the domestic legislation a person had a right to obtain information of a private nature held on him by the ORG institutions ( see paragraphs CARDINAL and CARDINAL below ) . Nonetheless , the information the applicant sought access to had much wider implications ; therefore it could not be regarded as concerning his private life . Furthermore , that information had in the meantime been given to the prosecutors as evidence in criminal proceedings ( paragraph CARDINAL above ) . Disclosure of such information was explicitly prohibited by LAW . The court also noted that ORG rights , as established in [ LAW of ] LAW , could be restricted only when this was provided for by law , necessary in a NORP society and with the aim of protecting rights and freedoms of others . In the applicant \u2019s case , such a restriction had been established by law . There was no proof that by refusing the applicant access to the transcripts of his telephone conversations the ORG had acted arbitrarily . It followed that the applicant \u2019s right to receive information had not been infringed .","On DATE ORG dismissed the applicant \u2019s appeal , upholding the reasoning of the lower court .","NORP In reply to an inquiry by the applicant \u2019s lawyer , on CARDINAL DATE the Deputy Attorney General wrote that to DATE the ORG had not informed the prosecutors about the results of an internal investigation into the circumstances how the media had got hold of the applicant \u2019s telephone conversation with PERSON ( paragraphs CARDINAL and DATE above ) .","By a letter of DATE , the ORG informed the applicant that , given that there was no ground for an internal investigation into the lawfulness and reasonableness of the tapping of his phone , as sanctioned by the court on DATE , no inquiry had ever taken place at the level of the ORG .","The Law on Operational Activities ( Operatyvin\u0117s veiklos \u012fstatymas ) , adopted by ORG and published in ORG ( PERSON \u017einios ) on DATE , in force at the relevant time , provided :","\u201c CARDINAL . Operational activities are overt and covert intelligence activities by operational entities conducted in accordance with the procedure established by this PERSON .","Targets of operational activities are crimes being planned , being perpetrated , or already committed , persons engaged in planning or committing crimes or persons who have committed a crime , vigorous actions of these individuals in neutralising operational activities or by infiltrating law enforcement , national defence , or other government and administrative institutions , and activities of foreign intelligence services and other persons and events linked with State security matters . \u201d","\u201c The tasks of operational activities shall be as follows :","CARDINAL ) NORP crime prevention ;","CARDINAL ) NORP solving crimes and establishing the identity of the individuals who are planning , are engaged in or have already committed criminal acts ;","CARDINAL ) NORP protection of individuals from criminal influence ;","( ... )","CARDINAL ) NORP actions posing a threat to the constitutional order , its independence , economic safety of the State , or other important interests of national security ( ... ) ;","( ... )","CARDINAL ) NORP protection of ORG secrets ;","CARDINAL) investigation of the activities of the intelligence services of other GPE ;","CARDINAL ) ensuring the safety of the entities of operational activities . \u201d","NORP The individual and ORG rights and freedoms may not be violated in the course of operational activities . Individual restrictions on these rights and freedoms shall be temporary and may be applied only in accordance with the procedure established by laws , striving to defend another person \u2019s rights and freedoms , property and the security of the ORG and society ( ... ) .","It shall be prohibited to apply operational activities to the President of the Republic .","( ... )","NORP In case the rights and freedoms of an individual and citizens have been violated , the entities of operational activities must restore the rights which have been violated and compensate the damage according to the procedure established by legal acts .","The classified information obtained in the course of operational activities , as well as that about a person \u2019s personal and family life and information demeaning his or her honour or dignity may not be disclosed , with the exception of ... situations stipulated in LAW .","Within DATE of the completion of the operational investigation and provided that the operational information about the target of the operational activities did not prove to be true , information about a person \u2019s private life must be destroyed ( ... ) .","A person who considers that the activities of the entities of operational activities have violated his rights and freedoms may appeal against those actions to the chief of the entity of operational activities , a prosecutor or a court . \u201d","\u201c An operational investigation shall be conducted , when :","CARDINAL ) NORP information is held with respect to a serious crime being planned ( ... ) ;","CARDINAL ) NORP information is available regarding the activities of the special services of other GPE ;","( ... )","CARDINAL ) protection of ORG secrets is being implemented ;","CARDINAL ) NORP information is available concerning actions which are endangering the constitutional system of the State , its independence , economic security ... or other important interests of national security . \u201d","\u201c CARDINAL . The covert monitoring of ... telegraph and other communications and the use of technical equipment in accordance with special procedure shall be authorised by the chairman of a regional court or the chairman of the criminal cases division of that court , on the basis of a reasoned recommendation by the Attorney General , the Assistant Attorney General , or ... a recommendation by the chief prosecutor of the regional prosecutor \u2019s office or ... assistant regional chief prosecutor , that recommendation being based on the information submitted by the chiefs of the entities of operational activities or their authorised deputy chiefs .","( ... )","The implementation of actions recommended for aims of conspiracy concerning the actions indicated in paragraph CARDINAL of this LAW , may be authorised by any district court .","The request for covert monitoring shall indicate :","CARDINAL ) NORP the name , surname and position of the officer who submitted the request ;","CARDINAL ) a description of the target or the name and surname of the person in respect of whom operations shall be conducted ;","CARDINAL ) NORP facts ( grounds ) warranting a request to employ the operational activities ;","( ... )","CARDINAL ) an estimate how long the operational measures will be applied ;","CARDINAL ) NORP the aim of the investigation .","The covert monitoring ... and the use of technical equipment according to special procedure shall be authorised for no longer than DATE . This period may be extended ( ... ) . \u201d","\u201c CARDINAL . Classified operational information may be declassified according to the procedure established by laws and used as evidence in a criminal case ( ... ) .","Classified operational information may be used for other purposes in cases determined by the laws ( ... ) . \u201d","The Code of Criminal Procedure reads :","\u201c CARDINAL . Information about a pre - trial investigation shall not be made public . It may be made public only subject to a prosecutor \u2019s authorisation and only to such an extent as is determined as permissible ( ... ) . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW stipulates that citizens have the right to receive , according to the procedure established by law , any information concerning them which is held by the ORG institutions .","The PERSON on the Right to Obtain Information from ORG and ORG ( PERSON gauti informacij\u0105 i\u0161 valstyb\u0117s ir savivaldybi\u0173 \u012fstaig\u0173 \u012fstatymas ) , in force as of DATE , provided that a person had a right to obtain information of a private nature held on him by the authorities ( LAW ) . Nonetheless , the authorities could refuse to reveal information , the disclosure of which could damage the interests of ORG security , defence , foreign policy , or hinder a criminal investigation . A refusal to disclose information had to be necessary in a NORP society and based on reasons more weighty than a person \u2019s right to obtain information . The authorities\u2019 refusal to reveal information held on a person could be appealed against to the administrative courts ( DATE ) ."],"violated_articles":["13","8"],"violated_paragraphs":["8-1"],"violated_bulletpoints":[],"non_violated_articles":["13","8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70184","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF CEVDET AND HAT\u0130CE YILMAZ v. TURKEY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"","text":["The applicants live in GPE .","On DATE ORG and Highways expropriated plots of land belonging to the applicants . A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place .","Following the ORG request for increased compensation , on DATE ORG of First - instance awarded them additional compensation plus interest at the statutory rate .","On DATE ORG quashed the judgment .","On DATE ORG of First - instance awarded the applicants additional compensation plus interest at the statutory rate .","On DATE ORG quashed the judgment .","On CARDINAL DATE ORG of First - instance awarded the applicants additional compensation of MONEY ( TRL ) plus interest at the statutory rate applicable at the date of the court \u2019s decision , running from DATE , the date on which the title deed to the land had been transferred to ORG and Highways in the land registry .","On DATE ORG upheld the judgment .","On DATE ORG and Highways paid the applicants TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL .","The relevant domestic law and practice are set out in the ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108578","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2012,"docname":"CASE OF TODOROV v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant , a police officer at the material time , was arrested on suspicion of membership of a criminal association run by PERSON , another police officer , and participation in armed robberies . On the same date his house was allegedly searched without a warrant .","On DATE the applicant signed a waiver of his right to legal representation . On the same date he confessed to having participated in group assaults on families NORP and S. in DATE upon PERSON invitation . He also noted that he believed that the families were visited for collection of unpaid business debts in favour of third parties . According to the applicant , he notified the investigator that he was unable to see the record of his questioning as he had been suffering from eye cataracts .","On DATE the applicant was indicted . He signed the statement of indictment , having noted that he fully acknowledged his guilt and requested to be released from detention , since he needed in - patient treatment on account of his skin disease and eye cataracts , as well as surgery for the latter .","On DATE the applicant obtained access to an advocate . It is unclear , however , whether the advocate was present during the applicant \u2019s interrogation and indictment on that date .","Also on the same date the applicant was remanded in custody as a preventive measure . On various occasions the applicant appealed against this measure , in particular , referring to an urgent need to have eye surgery and in - patient treatment for other medical conditions . However his requests were rejected .","During the pre - trial investigation , the authorities questioned CARDINAL witnesses concerning over CARDINAL episodes of various crimes , carried out some CARDINAL reconstitutions of the crime scenes and ordered numerous expert assessments .","On DATE the investigation was completed and the applicant , along with CARDINAL other individuals charged for being involved in a criminal association membership , was committed for trial to ORG of GPE ( subsequently renamed ORG of GPE ( hereafter \u201c ORG ) .","On DATE , following familiarisation of the defendants with the case - file materials and completion of other procedural formalities , ORG held a preliminary hearing in the case and scheduled the trial for DATE .","On DATE the newspaper ORG published an article entitled \u201c Changelings with police epaulettes \u201d , featuring in particular an interview with PERSON . , the judge presiding over the applicant \u2019s case . The judge was quoted as saying that she was appalled by the audacious crimes committed by the defendants and their challenging conduct at court hearings .","Having held some CARDINAL hearings DATE , ORG adjourned the proceedings in connection with CARDINAL of the GPE request to ensure recording of the hearings with technical equipment which was unavailable .","On CARDINAL DATE ORG resumed consideration of the case and held some CARDINAL hearings in DATE .","The applicant alleged that on various occasions he and his co - accused had requested the removal of Judge PERSON . from the proceedings on various grounds , including lack of impartiality ; however , their requests had been rejected . The applicant did not provide copies of his requests for the removal of Judge PERSON . or the decisions taken following their consideration .","The Government alleged that the applicant had never lodged any requests for the removal of the judge during the trial . Such requests had been lodged only by CARDINAL of his co - defendants , A. K. , who had also requested on DATE that the above newspaper article be added to the case - file . Those requests had been dismissed as unsubstantiated .","During the trial , the applicant denied any encounter with the PERSON family . As regards the PERSON family , he acknowledged having visited them along with CARDINAL other defendants to collect the debt owed to a third party at PERSON request . He contended that he had been in the kitchen while his companions had spoken with the hosts , that the hostess had given them money voluntarily , and that he had been unaware of any coercion taking place . He further retracted his confessions given during the pre - trial investigation in the advocate \u2019s absence , alleging that at the material time he had been practically blind and unable to read the documents he was signing . He had signed the waiver of his right to be represented by an advocate under pressure from the investigator , who promised that in exchange for his cooperation he would be promptly released from custody to enable him to seek medical treatment .","On DATE ORG pronounced its judgment , the text of which was presented on CARDINAL pages and concerned over CARDINAL counts of various crimes , including robberies , a murder and assaults committed by CARDINAL defendants collectively and individually against numerous victims . By this judgment , the applicant was convicted of a criminal association membership and CARDINAL counts of armed robbery ( against the families NORP and S. ) . By way of evidence of his participation in the robberies , the court referred , primarily , to the confessional testimonies of his co - defendants , identifying him as their accomplice , and the testimonies of the members of the assaulted families given during pre - trial investigation and trial , in which they alleged to have recognised the applicant . The applicant \u2019s confessional statements were not referred to by the court in the text of its judgment . The court sentenced the applicant to CARDINAL years\u2019 imprisonment , banned him from occupying certain posts for a DATE term and ordered the confiscation of his property .","In DATE and DATE the applicant , his lawyer , and his mother acting as his defence , submitted appeals in cassation against the applicant \u2019s conviction . They presented the same version of events as proposed by the applicant during his trial and contended that the court had misinterpreted facts and wrongly applied the law . They challenged the testimonies given by the applicant \u2019s co - defendants , alleging they had been given under duress , and testimonies given by the victims as ambiguous and unreliable . They further contended that all the evidence collected from the applicant in violation of his right to be legally represented should be excluded from the body of evidence . The appellants noted that immediately upon his arrest the applicant had informed the investigative authorities that he was almost blind and was unable to read the documents he was signing . The waiver of his right to be legally represented had not been genuine . On the contrary , the video - recording of the applicant \u2019s initial questioning showed that he requested the assistance of a lawyer , referring to his poor health and vulnerable state . Lastly , the appellants complained that the sentence imposed on the applicant was disproportionately severe , particular regard being had to his state of health and lengthy pre - trial detention in conditions incompatible with it .","On DATE the applicant \u2019s mother drafted a supplement to the above - mentioned appeals , in which she complained , inter alia , that Judge PERSON . had not been impartial , since , as it transpires from her interview to the ORG newspaper in DATE , she had had a preconceived notion of the applicant \u2019s guilt from the very beginning of the trial . The copy of this supplement contained in the case file bears no stamps or other evidence that it was admitted by the court for consideration or at least lodged with it .","On DATE ORG of GPE dismissed the applicant \u2019s and his representatives\u2019 appeals in cassation , having found that the trial court had correctly assessed the evidence and applied the law and that there was no appearance of any procedural violations which could have affected the outcome of the case .","Prior to his arrest , the applicant had been diagnosed as suffering from immature cataracts in both eyes and neurodermatitis .","On DATE the applicant was placed in the Saky Temporary Detention Centre ( \u201c the ORG \u201d ) , where , according to him , he was held in inhuman conditions ( overcrowding , poor sanitary arrangements and risk of pressure from inmates because he was a policeman ) .","On DATE the applicant was transferred to the PERSON no . CARDINAL ORG - trial ORG ( \u201c the GPE \u201d ) .","Upon his arrival , the applicant was examined by the GPE medical staff and placed under dispensary supervision for immature aggravated cataracts in both eyes , diffused eczema , and chronic gastritis .","On DATE the applicant informed the Prosecutor of the ARC that he had started a hunger strike in protest against being denied the medical assistance he needed .","On DATE the applicant was examined by the medical committee of the ARC Semashko Hospital , which concluded that at the material time he was suffering from scabies , eczema , chronic prostatitis , nephroptosis , gastritis and reactive hepatitis . It further found that the applicant needed in - patient treatment in a specialised facility for his skin diseases and that his cataracts were mature and needed to be surgically removed after treatment of inflammatory processes .","On DATE another medical committee determined that the applicant was still suffering from eczema , gastritis and mature cataracts , for which he needed surgery .","On DATE the applicant was further examined by the head ophthalmologist of the ARC and it was recommended that eye surgery be performed promptly to prevent potential aggravations such as full loss of eyesight and eruption of the eyeballs . The applicant was further advised that in order for the surgery to be effective he needed first to obtain therapeutic inpatient treatment and be supervised by an ophthalmologist for DATE after the surgery .","On DATE ORG adjourned hearings to allow for the applicant \u2019s eye treatment .","On DATE the PERSON administration requested ORG to consider releasing the applicant from custody , because it was impossible to provide the therapeutic treatment he needed in the GPE . However , this request was not granted .","On DATE the applicant was taken to the eye clinic for surgery . However , having allegedly been advised by medical professionals that the success of the surgery was at risk because of his untreated skin inflammations , he refused to be operated on and returned to the GPE .","On DATE the PERSON administration petitioned for the applicant \u2019s release from detention , referring to the lack of necessary facilities in the GPE for the applicant \u2019s proper treatment and risk of permanent loss of eyesight .","On DATE the applicant was assigned the first ( most advanced ) category of invalidity on account of complete loss of eyesight .","On DATE the applicant was released from custody , as he had already served his sentence .","The relevant provisions of Articles CARDINAL and CARDINAL of the LAW of GPE concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL , \u00a7 CARDINAL ) .","NORP The relevant provisions of LAW GPE , as worded at the material time , read as follows :","\u201c The court , in the event there are grounds for it , shall take a separate ruling ( \u043e\u043a\u0440\u0435\u043c\u0430 \u0443\u0445\u0432\u0430\u043b\u0430 ) , in which it shall draw the attention of the ORG bodies , public organisations or officials to the breach of the law established in the facts of case ...","A separate ruling may also be taken where the court reveals breaches of rights of citizens and other breaches of the law that took place during inquiry , pre - trial investigation or consideration of the case by a lower court .","...","The separate ruling must be acted upon as necessary and the court which issued the ruling notified of the results within DATE .","In the event that an official leaves the separate ruling without consideration , the measures laid down in Articles CARDINAL - CARDINAL of LAW of GPE shall be applied .","\u201c A suspect , an accused and a defendant in court may at any moment waive [ their right to be represented ] ...","The waiver may not be accepted : ...","CARDINAL ) NORP in cases concerning crimes by persons who , on account of their physical or mental disabilities ( muteness , deafness , blindness and other ) , can not exercise their right to defence by themselves ;","... \u201d","Articles CARDINAL , CARDINAL and CARDINAL of the Code provided that if the courts revealed such breaches of the law by the investigative authorities during pre - trial investigation , which could not be remedied at the trial stage , they were to remit the case back to the investigative authorities with instruction to address those breaches .","The relevant provisions of the Code concerning preventive measures pending trial are quoted in the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 DATE , DATE .","The relevant parts of the above ruling read as follows :","\u201c ... DATE . LAW provides that everyone has the right to defend himself from accusation and to obtain legal assistance . Therefore , examining a criminal case , the court must , in the circumstances provided by law , ensure the defendant \u2019s right to defence .","... It shall be borne in mind that LAW CARDINAL of the LAW an accusation may not be based on presumptions or on evidence obtained in an unlawful way . Evidence should be considered as having been obtained unlawfully when , for example , it has been collected and recorded in breach of the human and ORG rights guaranteed by LAW , or of ... the law on criminal procedure ... \u201d","The relevant international materials with respect to healthcare arrangements in detention facilities may be found in the judgment in the case of GPE v. GPE ( no . CARDINAL , \u00a7 DATE ) ."],"violated_articles":["3","5","6"],"violated_paragraphs":["5-3","6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78283","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2006,"docname":"CASE OF CSIKOS v. HUNGARY","importance":1,"conclusion":"Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial)","judges":"","text":["The applicant was born in DATE and lives in GPE .","On DATE the ORG indicted the applicant and CARDINAL other individuals for aggravated extortion . The applicant was assisted by defence counsel of his choice . After hearings held on DATE and DATE , on DATE ORG found the applicant guilty as charged and sentenced him to CARDINAL\u00bd DATE imprisonment . The court relied on evidence given by the victim and several witnesses .","NORP The prosecution appealed to have the sentence increased , while the applicant appealed to be acquitted or to have his sentence reduced . He also proposed that CARDINAL further witnesses be heard .","At deliberations held in camera on DATE , ORG upheld the applicant \u2019s conviction , while increasing his sentence to CARDINAL years\u2019 imprisonment . Neither the applicant nor his lawyer was present . In its reasoning , the court did not deal with the proposal to hear CARDINAL more witnesses .","\u201c ( CARDINAL ) In GPE , everyone is equal before the law , and has the right to have any criminal charge against him or his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law . ...","( CARDINAL ) Individuals subject to criminal proceedings are entitled to the right of defence at all stages of the proceedings . ... \u201d","\u201c ( CARDINAL ) The Constitutional Court shall order the review of such criminal proceedings as have been finally concluded under unconstitutional legal provisions if the convicted person has not yet been exempted from the legal effects of the conviction \u2013 provided that from the nullity of the provision applied in the procedure , the reduction or non - imposition of the punishment or measure , or the exemption from or reduction of [ criminal ] liability would follow . \u201d","\u201c ( CARDINAL ) Any person who claims to have suffered a violation of his rights enshrined in the LAW on account of the application of an unconstitutional provision and has exhausted all other legal remedies or there are no such remedies available , may submit a constitutional complaint to ORG .","( CARDINAL ) A constitutional complaint may be filed in writing within DATE of the service of the legally binding decision . \u201d","\u201c ( CARDINAL ) An appeal may concern questions of fact or law . \u201d","\u201c ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . \u201d","\u201c ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tan\u00e1cs\u00fcl\u00e9s ) , a public session ( nyilv\u00e1nos \u00fcl\u00e9s ) or a hearing ( t\u00e1rgyal\u00e1s ) . ... \u201d","\u201c ( CARDINAL ) The second - instance court shall hold a public session , if \u2013 the first - instance judgment being ill - founded \u2013 the complete and\/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .","( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... \u201d","\u201c ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned \u2013 ... the defendant and his lawyer of the public session . ... \u201d","\u201c ( CARDINAL ) In order to take evidence , a hearing ... shall be scheduled . \u201d","\u201c ( CARDINAL ) Review proceedings may be instituted against a final decision on the merits if : ...","e ) ORG has ordered ( elrendelte ) the review of criminal proceedings concluded by a final judgment , provided that the defendant has not yet been exempted from the legal consequences flowing from his conviction , or the execution of the imposed punishment ... has not yet been terminated ... or its enforceability has not yet ceased ;","f ) the determination of criminal liability or the imposition of a sanction ... has been effected in application of a criminal law provision , whose unconstitutionality has already been established by ORG , but the defendant has already been exempted from the legal consequences flowing from his conviction , or the execution of the punishment has already been terminated or its enforceability has ceased ... \u201d","\u201c ( CARDINAL ) ORG finds that section CARDINAL(CARDINAL ) of Act no . ORG of DATE on LAW is unconstitutional and therefore annuls it as of the date of delivery of this decision . ...","( CARDINAL ) ORG finds that ORG has committed an unconstitutional omission by failing to regulate , in Act no . ORG of DATE on LAW and in accordance with the requirements of legal certainty and fair trial , the scope of those cases in which the appellate court may hold in camera deliberations . ORG invites ORG to comply with its legislative duties by DATE .","( CARDINAL ) ORG holds that section CARDINAL(CARDINAL ) of Act no . ORG of DATE on LAW was unconstitutional and therefore this provision can not be applied in the following cases , concluded by a final judgment ( joger\u0151sen befejezett \u00fcgyeiben nem alkalmazhat\u00f3 ) : ... nos . PERSON , CARDINAL , CARDINAL , CARDINAL.Bf . PERSON , CARDINAL.Bf . PERSON , CARDINAL.Bf.CARDINAL\/CARDINAL , PERSON , CARDINAL , CARDINAL.Bf.CARDINAL\/CARDINAL and CARDINAL . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23019","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2003,"docname":"MANSELL v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant , Mr PERSON , is a GPE national . He was born in DATE and is in prison in GPE . He is represented before the ORG by a firm of solicitors , ORG , GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","In DATE CARDINAL elderly brothers living in GPE were the victims of a violent robbery . On DATE assailants again entered their house and the brothers were seriously injured , the eldest brother later dying of his injuries .","In DATE the applicant and his own brother , TIME , were arrested and charged with robbery of the elderly brothers in DATE and on CARDINAL DATE and with murder on DATE .","The prosecution \u2019s case was that the applicant and TIME had targeted elderly victims following discussions TIME a time when TIME and ORG both were in custody . ORG specialised in robberies of elderly and vulnerable persons and had been indicted for a number of such offences to which he had pleaded guilty and in respect of which he had given evidence against his own accomplice . While in custody , ORG discussed his offences with TIME and gave TIME the addresses of victims known not to contact the police . ORG also discussed such offences with the applicant , the latter of whom had expressed some interest in committing such crimes himself .","The prosecution relied on the following elements :","( a ) ORG evidence about the applicant \u2019s and PM \u2019s interest in his offences on the elderly and about confessions made to him by TIME .","The trial judge referred to ORG \u2019s motivation in giving evidence in his summing up as follows :","\u201c I must also give you a warning in relation to [ ORG ] . I have already said something about him . He is an important cog in the prosecution \u2019s wheel . It is alleged that he has something , much to gain . He says not . But you must consider very carefully his evidence and whether he has any motive for untruthfully saying what he is saying in this case . It is not alleged that he has any grudge against [ PM ] or [ the applicant ] or any reason adverse to them for shopping them . It is said , well , all supergrasses are strange people : they have motives of their own . It is the sort of argument that can be addressed in any case in which a supergrass does give evidence . There are particular criticisms of [ ORG ] made , as you know , I have rehearsed some of them , by counsel already . You must consider his evidence with very considerable care . \u201d","( b ) ORG identification evidence . PERSON , a neighbour of the elderly brothers , had seen QUANTITY men near her home on DATE . In her first statement ( DATE ) , she made no reference to the colour of the eyes of either of the men . The surviving elderly brother later described CARDINAL of the men as having \u201c piercing blue eyes \u201d . In her second statement ( DATE ) , she said that CARDINAL of the men had \u201c piercing blue eyes \u201d .","Ms A had also attended CARDINAL identity parades . At the first parade ( DATE ) a suspect ( CARDINAL PERSON ) was included in the line - up . At the second ( DATE ) TIME was the suspect included in the line - up . At the third ( DATE ) the applicant was the suspect included in a line - up and he was identified by PERSON","The defence had been furnished prior to the trial with material including the results of the second and third identity parade . During the trial ( at the latest ) the parties also knew that there had been CARDINAL identity parades in total , that material concerning the first of those parades had not been furnished , that Ms A had not formally identified anyone at the second parade and that she had identified the applicant during the third parade . The applicant \u2019s counsel questioned PERSON in detail about the identity parades , but focussed his questioning on the second and third parades . The extract from the transcript is as follows :","\u201c Counsel . Do your remember indicating that a man number CARDINAL looked like the person you had seen in the lane ?","A. I ca n\u2019t remember if I picked someone out \u2018 cause I did n\u2019t think I \u2019d pulled anyone out .","Counsel . This was not the first parade which I think was in the DATE , from recollection , this is the second parade which is DATE .","NORP No .","Trial Judge . Ah , I think she was under the mistaken impression that you were talking about the first parade . ...","NORP No , I did n\u2019t pull anyone out .","Counsel . Not on the first parade this is the second parade .","NORP No . I did n\u2019t tell them , no . ...","Trial Judge . You did not pick anyone out ?","NORP No . \u201d","The applicant \u2019s counsel went on to question her about the third parade . ORG later outlined ORG evidence at trial as follows :","\u201c [ Ms A ] was a neighbour of the brothers and at CARDINAL - CARDINAL.CARDINAL p.m. on DATE of the second robbery and the murder she went outside her house to check on her children who were walking the dog in the lane . She went to the back of the house when she heard quick heavy footsteps at the bottom of the road . She positioned herself so that she could see down the road . She saw CARDINAL men walking quickly towards her . They looked odd . They were dressed in DATE clothes , it was a warm and DATE . The man nearest to her stared at her in a way that frightened her . From the moment she first saw them they were in full view . The vision conditions were perfect and she had an unobstructed view of them for the QUANTITY distance as they walked towards her . She gave meticulous descriptions of the men . The man who had been nearest to her had very scruffy , long , brown hair , a pale complexion and sunken blue eyes . He wore a jumper , jacket and scruffy trainers and gloves . The other man was broader and older , he had dark brown long , straight , scruffy hair , but was not as pale . In evidence she described how she had attended an identification parade on DATE May to see if she could identify the man with the blue eyes . She picked out [ the applicant ] . She had been on CARDINAL parades previously , she said she had been very frightened on those . She had not identified anyone on those occasions . \u201d","The trial judge confirmed , in his summing up , that Ms A had been on CARDINAL identity parades prior to the parade when she had identified the applicant , that she had been frightened , that there was someone on CARDINAL of those parades that she thought might have been CARDINAL of the men she had seen but that she was not sure about that and \u201c so she did not identify anybody . \u201d The trial judge also stated that :","\u201c [ Ms A \u2019s ] evidence is obviously important , because on the correctness of her identification a lot in this case clearly rests ... you can see that the importance of PERSON ] statement can not be overstated . It is very important evidence indeed \u201d .","( c ) The presence of a foot - print in blood in the elderly ORG house made by the same make and the same size as the footwear found in the applicant \u2019s garden shed on DATE he was arrested and the relevant supporting scientific evidence .","( d ) A map of GPE found in ORG \u2019s possession ( on it were hand - written notes of ORG \u2019s offences and directions to the elderly ORG home ) together with the applicant \u2019s evasive answers when questioned about the map ( which suggested that it was his handwriting ) . TIME \u2019s fingerprints were on the map . A piece of paper upon which the word \u201c PERSON \u201d was written had been found at TIME home : PERSON had been a target of ORG and his name had been marked in the above - mentioned map of GPE .","( e ) TIME admission that he had gone to visit another of ORG \u2019s targets .","( f ) The applicant and TIME had given differing accounts in interviews and evidence of their movements on DATE and DATE .","The applicant denied the offences and submitted that the evidence was flawed . He stated that he had never met ORG , although he had visited TIME in prison . He asserted that ORG was unreliable as a man of bad character who had committed a large number of offences himself and who had a self - serving motive having done a deal with the prosecution to obtain early parole . PERSON tapes had shown ORG to be a liar and the applicant questioned why , if ORG was feeding information to the police , the police did not listen into and tape telephone calls . He denied that it was his hand - writing on the map of GPE and submitted that the addresses of the victims would have been known to other criminals too . There was no forensic evidence pointing to him : his boots were too worn to have left the footprint found . He lied about his movements during police interviews as he did not want to be associated with TIME who was being accused of murder . However , he had then quickly given a correct account of his movements on DATE to the police which was consistent with his later evidence and the later evidence of TIME .","He also took issue with ORG evidence : he had short hair , was tanned after a holiday at the relevant time and had a distinctive tattoo on his neck whereas she had said that he had long hair and was pale - skinned and she had failed to remark a tattoo on his neck although her evidence was that he was wearing a low - necked pullover at the time .","On DATE , following a trial of DATE , the applicant and PERSON were convicted by a majority verdict ( of CARDINAL ) of robbery on or CARDINAL DATE and of murder on DATE and by a majority verdict ( CARDINAL - CARDINAL ) of robbery on DATE . The applicant was sentenced to life imprisonment for murder and to CARDINAL years\u2019 imprisonment for the robbery offences , the latter sentence to run concurrently .","The applicant applied for leave to appeal to ORG . The matter came before ORG on DATE when it was adjourned to enable further investigations to be made about the applicant \u2019s first ground of appeal : he alleged that MONEY ( GBP ) had been spent by the prosecution or the police in providing a new identity to ORG and that that information had not been disclosed during the trial . The allegation had been included in a newspaper article published the day after the applicant had been sentenced and he submitted that this constituted evidence relevant to the credibility of ORG which should have been disclosed .","ORG considered ex parte a public interest immunity application of the prosecution on this matter . The prosecution was represented by counsel , but the applicant and his representatives were excluded from the hearing . The applicant \u2019s solicitor \u2019s notes of the decision of ORG , it appears of DATE , record as follows :","\u201c We have considered ex parte application on part of ORG [ regarding the evidence ] given by [ ORG ] . [ We have ] read letter CARDINAL from GPE police and [ heard ] evidence of CARDINAL policemen , CARDINAL of very senior rank . We are satisfied that when [ ORG ] came to give evidence in the trial of [ PM and the applicant ] , he had no expectation of reward . Consequently his evidence was not tainted in that regard . [ We are ] also satisfied having considered letter of CARDINAL [ regarding the ] newspaper reports and read [ the ] newspaper , ... that there is no substance in that account . Arrangements were made long after conviction in DATE . \u201d","The applicant did not therefore pursue this ground of appeal and ORG proceeded to hear the remaining grounds of appeal in the leave application .","The second ground of appeal concerned CARDINAL items of information which had not been disclosed by the prosecution prior to or during the trial and which had come into the applicant \u2019s possession thereafter . He considered the information highly relevant to the reliability Ms A \u2019s evidence and that it should have been disclosed at trial . The CARDINAL items were as follows :","( a ) A pro - forma information sheet attached to the E - Fit image of CARDINAL of the men Ms A said she had seen . The E - Fit image had been produced at trial but not the information sheet . The latter document read as follows :","\u201c From Cognitive Interview .","Witness only able to give PERCENT mark . Treat image with CAUTION \u2013 the E - Fit [ image ] is the best the witness could produce being very vague on facial features \u2013 only really saw from a distance . \u201d","ORG described the relevant defence submissions as follows :","\u201c There is considerable uncertainty concerning the E - Fit pro - forma [ information sheet ] . It is far from clear that this document was served on the defence . It is true that there is a reference in the CARDINALth schedule of the unused material dated DATE to a \u201c force intelligence report \u201d although on its face the schedule does not specify that this is a separate document in addition to the E - Fit . For the purposes of this application we are prepared to accept that this document did not find its way into the possession of leading counsel then appearing on behalf of this applicant . There is no record of service of this material on the file of the applicant \u2019s solicitor at trial . Moreover , we have little doubt that if the document had been in leading counsel \u2019s possession he would have referred to it in cross - examination .","The significance of this document is that it appears directly to contradict the evidence of [ Ms A ] that she observed the face of the man she later identified as [ the applicant ] at DATE . \u201d","( b ) A document called a ORG was also made by the author of the E - Fit image . ORG described the defence submissions on this document as follows :","\u201c There is some doubt as to whether the ORG received the document PERSON and this would explain why it was not served on the defence . It appears to be accepted therefore that there was non - disclosure of this document . The significance of this form [ is ] that the reference to the eyes of the suspect records a description of \u201c oval light \u201d and : \u201c the witness somewhat vague on facial features and having only had a limited look at suspects faces \u201d .","In [ Ms A \u2019s ] original statement of DATE there was no reference to the colour of the suspects eyes . In her statement of CARDINALth DATE she made specific reference for the first time [ to ] \u201c piercing blue eyes \u201d . This description proved to be of considerable importance in the prosecution \u2019s case , because of the reference in [ the surviving brother \u2019s ] statement to the \u201c very piercing blue eyes \u201d of CARDINAL of his attackers on the earlier occasion in DATE ] . [ Defence counsel ] submits that no reference was made in cross examination of [ Ms A ] to the fact that it was only in her later statement that the blue eyes description first emerged . However , he contends , without any material to show that she had previously been asked to describe the eyes , the defence ran the risk of underlining a damaging feature of the case against the applicant . The fact disclosed in the PERSON that , when first asked about the eyes she made no mention of the supposedly striking feature , throws substantial doubt on this important aspect of her evidence . Had it been explored in cross examination at trial it could have formed the basis for a suggestion that she had heard of the reference to blue eyes from another source . \u201d","( c ) Documents relating to an identity parade on DATE . The applicant had discovered after the trial that Ms A had identified a decoy during the first parade on DATE . ORG described the relevant defence submission on this point as follows :","\u201c [ Defence counsel ] attaches even more significance to the non - disclosure of the [ first ] identity parade material . The ORG served some of the documentation in relation to the CARDINALth DATE parade . In their bundle of material served at this hearing the ORG have included additional material from the CARDINALth DATE parade . From this it appears that from that parade [ Ms A ] wrongly identified CARDINAL of the \u201c decoys \u201d . The material part reveals :","\u201c Q : Is the person you saw on DATE on the parade ? Note reply A : LAW .","( i)Q : Was PERSON identified ? A : No .","[ Defence counsel ] points out that the first identification parades were referred to in evidence but the full significance of the [ first ] parade could not have been appreciated in the absence of the full documentary evidence . In cross examination , [ Ms A ] stated : \u201c I did n\u2019t think I had pulled anyone out \u201d . It was then clarified that she was being asked the questions about DATE ] parade . She then reaffirmed that she had not identified anyone . In the summing up the learned judge directed the jury that [ Ms A \u2019s ] evidence was that she had not picked anyone out .","It is difficult for this court to determine whether or not counsel at trial were aware of the identification of a decoy . However , we are satisfied that if defence counsel had been aware of this information it would have been of obvious importance . We are prepared to assume for the purposes of this application that this information was not imparted to the defence . \u201d","A photograph of the identification parade on DATE was also disclosed to ORG and the defence submitted that the man picked out by PERSON looked nothing like the applicant .","In its judgment of CARDINAL DATE ORG found as follows as regards the failure to disclose these CARDINAL classes of document concerning PERSON evidence :","\u201c We consider it most unfortunate that these CARDINAL classes of document were not revealed to the defence , or if they were then that they did not find their way into the possession of counsel . We are equally satisfied that if counsel had had access to this information it would have been deployed in cross examination . We doubt whether the manuscript endorsement on the E - Fit pro - forma would have materially dented [ Ms A \u2019s ] credibility in the light of the evidence she gave as to the opportunity of observing the men over a distance of QUANTITY . This evidence was not inconsistent with her previous statements . Counsel would have had more success with endorsement on ORG of the eyes as \u201c oval light \u201d . This may have caused [ Ms A ] to reflect upon her evidence and whether she wished to retract her testimony . We take a more serious view of the non - disclosure of the [ first ] identity parade material which clearly shows on its face that far from not identifying anybody [ Ms A ] made a positive identification of a decoy . This might well have cast considerable doubt on [ Ms A \u2019s ] positive identification of [ the applicant ] on DATE . \u201d","Even so , we do not consider that these irregularities , on their own , would be such as to render the convictions unsafe if leave to appeal were granted . \u201d","ORG then rejected the remaining grounds of appeal which challenged the trial judge \u2019s direction to the jury concerning separate verdicts against TIME and the applicant , his alleged failure to warn the jury of the danger of concluding guilt from a rejection of the applicant \u2019s defence , his direction concerning TIME \u2019s previous convictions and his direction as to whether the CARDINAL men whom PERSON had seen were the QUANTITY robbers . The appeal court also rejected the appellant \u2019s challenge to the trial judge \u2019s failure to discharge the jury following threats made to jurors by third parties . Finally , ORG reviewed the case against the appellants as a whole in order to determine whether the matters complained of collectively rendered their convictions unsafe . It noted as follows :","\u201c We are satisfied that they do not and that there was evidence which , if the jury accepted it fully justified each of the convictions . Suffice it to say that the evidence of [ ORG ] was corroborated in several respects . The relevant telephone conversation[s ] with [ ORG ] were all proved . [ PM ] admitted in interview that he had [ visited another of ORG \u2019s targets ] . A piece of paper was found at TIME \u2019s home upon which was written the name \u201c PERSON \u201d . The [ map ] had [ TIME \u2019s ] fingerprints upon it [ and ] the addresses of the brothers and PERSON were noted or ringed . Both defendants lied in interview about being with each other in [ the applicant \u2019s ] car on TIME CARDINAL DATE . TIME set up a false alibi in relation to DATE and involved his wife ... and sister - in - law .. in making false statements supporting his false alibi . The identification evidence of PERSON including her positive identification of [ the applicant ] on DATE . The finding of a boot print in blood which corresponded to a size CARDINAL \u201c Kicker \u201d boot . [ The applicant ] had such a boot and wore it at about the material time . In evidence both defendants accepted that they had been together on DATE and on DATE \u201d .","ORG concluded therefore that , in light of the strength of the case against TIME and the applicant , there was no realistic prospect of a successful appeal . Their applications for leave to appeal were rejected .","The ORG refers to the outline of the domestic law and practice concerning the prosecution \u2019s duty of disclosure of material to the defence contained in GPE and PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81807","languageisocode":"ENG","respondent":"CYP","branch":"CHAMBER","date":2007,"docname":"CASE OF ARESTI CHARALAMBOUS v. CYPRUS","importance":3,"conclusion":"Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties and as derived from TIME of the proceedings , may be summarised as follows .","On DATE the applicant married a NORP citizen . On DATE he filed a petition for divorce ( no . CARDINAL\/CARDINAL ) with ORG of GPE .","On DATE the applicant filed an ex parte application for leave to publish the divorce petition in an LANGUAGE daily newspaper . Leave was granted by the court on DATE .","On DATE the court fixed the case for mention for DATE and instructed the counsel of the applicant 's former wife ( hereinafter \u201c the respondent \u201d ) to file her defence by that date . This was filed on DATE .","On DATE the respondent filed an application raising certain preliminary points of law to be tried before the main petition . The application was set for DATE and then for DATE . In the meantime , on DATE , the applicant filed an objection to the application .","DATE until DATE both the main divorce and interim proceedings were adjourned CARDINAL times . CARDINAL of these adjournments were by the court itself : from DATE until DATE and from DATE until DATE . It appears that the remaining adjournments were by the parties ' mutual agreement .","During the above period , on DATE , a deportation order was issued against the respondent by the immigration authorities . On DATE the respondent filed an administrative recourse before ORG ( first instance administrative jurisdiction ) challenging the order , requesting an interim application for the suspension of the deportation order in order to be able to attend the divorce proceedings and testify before ORG and a declaration recognising her right to have her residence permit renewed .","On DATE the respondent withdrew her application of DATE and upon agreement by both parties the hearing of the divorce petition was adjourned until DATE .","The hearing of the petition commenced on DATE and was completed on DATE . CARDINAL hearing sessions were held with CARDINAL adjournment at the request of the respondent 's lawyer .","In the meantime , on DATE , ORG delivered an interlocutory judgment and rejected the respondent 's recourse . ORG noted that the respondent 's residence permit had expired on DATE and that since then she had been staying in GPE without a permit . Nonetheless , she had not been deported pending the proceedings in another recourse she had filed against the administrative authorities ' decision not to grant her another permit . This recourse had been rejected by ORG on DATE and this was the reason that the deportation order of CARDINAL DATE had been issued . Furthermore , ORG observed that to grant the respondent her application for an interim order for the suspension of the deportation order would in essence result in the grant of permission to stay , which was outside the competence of the ORG . The right of any person , whether NORP or alien , to be present at proceedings before a court , was not related to the question of permission to stay . The applicant , in her recourse , had linked the CARDINAL , but the need for her to be present at the trial before ORG would be regulated by the requirements of the trial and not according to a general obligation of the Republic to grant her permission to stay in the Republic for the duration of the trial , as she asserted .","The respondent was deported on DATE .","On DATE ORG issued an ex - tempore decision granting the applicant 's divorce petition .","On DATE , the applicant 's former wife who had been deported ( hereinafter \u201c the appellant \u201d ) , filed an appeal ( no . CARDINAL\/CARDINAL ) before ORG Family Court Appeal Jurisdiction ) . TIME first instance proceedings were received by ORG on DATE .","On DATE the applicant filed an application for security of costs . The court fixed this application for hearing for DATE . On DATE , the court fixed the application for further directions for DATE and instructed the appellant to file her written objection by the above date . This was filed on DATE .","On DATE the application was fixed for hearing for DATE .","In the meantime , on DATE , the appellant filed the outline of her address .","On DATE the court heard the appellant 's objection to the security of costs application and it reserved its decision on the matter . It also fixed the appeal proceedings for pre - trial for DATE .","In the meantime , on DATE , the court delivered its decision concerning the application for security of costs .","On DATE the appellant filed her application for leave to amend her grounds of appeal . This was granted by the court on DATE . On DATE , the parties were also directed to file their amended notices of appeal and the outlines of their addresses .","The appellant filed her amended grounds of appeal on DATE and the applicant filed his written address outline on DATE .","On DATE ORG fixed the appeal case for hearing for DATE . On the latter date the appellant 's counsel made an oral request for the exclusion of CARDINAL of the judges from the composition of the court . The specific judge had rejected her administrative recourse against the deportation order ( see paragraph CARDINAL above ) . Consequently , the hearing was adjourned until DATE at the appellant 's request .","On DATE the appellant 's counsel requested a DATE adjournment because of health problems . On DATE ORG granted the adjournment until DATE .","On DATE ORG rejected the appellant 's request of CARDINAL DATE .","The appeal was heard on DATE .","On DATE the court delivered its judgment . It upheld the appeal and set aside the first instance judgment . It found that the appellant 's right to a fair trial had been violated . This was due to the fact that the immigration authorities had not allowed her to remain in GPE for the purposes of the trial whilst ORG had continued with the case despite having being informed of the respondent 's deportation . ORG noted that ORG should have adjourned the case and indicated to the immigration authorities to allow the respondent to return for DATE to GPE in order to enable her to be present at the proceedings and to defend her case . ORG ordered a retrial by a different composition of ORG .","On DATE the applicant 's counsel applied for a retrial of the divorce petition .","On DATE the hearing of the divorce petition was set for directions for DATE .","In the meantime , on DATE , the respondent filed an application for leave to amend her defence .","On DATE the court fixed the interim application and the divorce petition for directions for DATE .","In the meantime , on DATE , the respondent filed a second application for leave to amend her defence . On DATE she withdrew her application of CARDINAL DATE and the court granted her application of CARDINAL DATE . Subsequently , the court fixed the main divorce proceedings for hearing for DATE .","The amended defence and counter - claim were filed on DATE .","From DATE until DATE the proceedings were adjourned twice consecutively . Both adjournments were at the request of the respondent 's lawyer because his client could not appear before the court as the immigration authorities had not made the necessary arrangements for her to come to GPE .","A hearing was held on DATE and the court granted the divorce petition on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90356","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2008,"docname":"CASE OF MAHMUDOV AND AGAZADE v. AZERBAIJAN","importance":3,"conclusion":"Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants were born in DATE and DATE respectively and live in GPE .","The first applicant was the acting chief editor of the PERSON newspaper . The second applicant was a journalist working for the same newspaper .","NORP In its issue of CARDINAL DATE , the newspaper published an article named \u201c Grain Mafia in GPE \u201d ( \u201c GPE tax\u0131l mafiyas\u0131 \u201d ) , under the by - line of PERSON , a pseudonym of the second applicant . The article was accompanied by a picture of J.A. , who was a member of ORG , a well - known expert in agriculture , and a member of PERSON ( ORG ) . The article generally spoke about a number of problems in the country \u2019s agricultural sector . It also appeared to imply , amongst other things , that J.A. was in charge of the breeding of certain experimental crops in \u201c experimental \u201d fields in several agricultural regions . ORG name was printed in full in the article itself .","Specifically , the article read as follows ( translated from NORP ) :","\u201c [ President ] Heydar PERSON \u2019s famous conference in PERSON was rich in memorable moments . Naturally , in the essence of this richness , it is impossible not to notice the scale of arbitrariness and corruption and how the entire nation is held up to ridicule . But we are not talking about the dismissal ... of [ certain government officials ] for reasons which remain obscure to many .","We are also not talking about how it was far from logical to accuse of stinginess a businessman named ORG who has spent MONEY on charity in DATE , while not a single member of the clan which has misappropriated MONEY of the country \u2019s wealth is willing to expend MONEY on development of our motherland . What is interesting is that the Head of ORG accused the people , whom he had turned into an object of reproach , of nepotism ... and monopolisation of the private sector in ORG . PERSON says that he has refused to appoint his relatives to any [ official ] positions despite [ having received ] insistent requests in this regard . But what he does not say is that there is no person in this country other than the son PERSON who simultaneously occupies CARDINAL \u201c armchairs \u201d . Speaking of seizing control over [ well - to - do sectors of economy ] , DATE even a baby who is just learning to speak knows which people control such a huge sphere of the NORP economy as the agricultural sector . CARDINAL of hectares of fertile land in GPE have been turned into an experimental zone for \u201c valuable sorts \u201d of grains . For DATE the agricultural sector has been plundered as if it were in the private ownership of the certain known person .","During the NORP period agriculture was the main contributor to the gross domestic product and the main area of the population \u2019s employment . However , in the GPE era of independence , the agrarian sector , like all other sectors of the economy , has been monopolised to serve the interests of peri - governmental circles . With the exception of grain and livestock farming , other leading branches of agriculture have slumped . The productivity level of poultry farming has decreased from QUANTITY in DATE to QUANTITY in DATE . Viticulture can be said to have been completely ruined , while cotton growing is in such an acute state of decline that within DATE its share in the total agricultural product has decreased from PERCENT . As a result of appropriation of the cotton - processing industry by a group of monopolists , cotton planters are being seriously exploited . At the moment DATE cotton - ginning plants existing in the country are controlled by a company named ORG . This company \u2019s share of all the cotton processed in the country DATE was PERCENT . [ A description is given of various specific monopolistic policies pursued by this company . ]","The development of the grain - growing industry is under the special care of a group [ of persons ] who have monopolised this sphere . For DATE the people in the provinces either can not sell the grain they have grown under considerable hardship or , in the best - case scenario , are forced to sell it for CARDINAL manats per kilogramme . For example , during DATE in such big grain - growing regions as PERSON , PERSON and GPE , the local executive authorities either prevented the major grain buyers from GPE from entering these regions or forced them to buy grain from specified fields . [ This was done ] for a simple reason \u2013 in order to sell , in a timely manner , all the grain from the QUANTITY of [ ORG ] \u2018 ORG in these regions . It is clear that , as simple peasants do not possess necessary facilities ( such as special buildings ) for storage of grain , they are forced to sell their crop at low prices .","The land reform is often spoken about . But at the same time several important issues are forgotten . Firstly , CARDINAL of those who are given a share of land do not possess even the minimum facilities to cultivate it . Secondly , QUANTITY of fertile land , labelled as \u2018 state land fund\u2019 during the land reform , are held hostage by the \u2018 agrarian ORG , and not MONEY goes to the state budget from its lease .","Nowadays this mafia ... bends over backwards to obtain from the ORG MONEY in DATE subsidies for the development of agriculture . But no one is asking PERSON why , if he cares so much about the development of agriculture , he sells the equipment donated by the NORP government , and not even for discount prices , but for prices higher than the ex - factory price . These people \u2013 those who sell a plough , which they have obtained free of charge , to the peasant for MONEY , a tractor for MONEY , and a grain combine harvester for MONEY \u2013 now they want to get money from the ORG to revive agriculture . Sorry , but we are n\u2019t duped by you . Your \u2018 ORG to CARDINAL\u2019 , which you have submitted to the Government [ for implementation ] , is not a programme aimed at supporting the peasant , but a programme allowing you to increase your personal wealth at a cost of MONEY which you snatch from the ORG budget DATE . \u201d","On DATE J.A. filed a criminal complaint with ORG using the procedure of a private prosecution . He claimed that the article clearly referred to him in a defamatory , slanderous and insulting manner . Specifically , he cited the following extracts as defamatory :","\u201c ... DATE even a baby who is just learning to speak knows which people control such a huge sphere of the NORP economy as the agricultural sector . CARDINAL of hectares of fertile land in GPE have been turned into an experimental zone for \u201c valuable sorts \u201d of grains . For DATE the agricultural sector has been plundered as if it were in the private ownership of the certain known person . ...","The development of the grain - growing industry is under the special care of a group [ of persons ] who have monopolised this sphere . For DATE the people in the provinces either can not sell the grain they have grown under considerable hardship or , in the best - case scenario , are forced to sell it for CARDINAL manats per kilogramme . For example , during DATE in such big grain - growing regions as PERSON , PERSON and GPE , the local executive authorities either prevented the major grain buyers from GPE from entering these regions or forced them to buy grain from specified fields . [ This was done ] for a simple reason \u2013 in order to sell , in a timely manner , all the grain from the QUANTITY of [ ORG ] \u2018 ORG in these regions . ... \u201d","J.A. argued that the article clearly implied that he was in close contact with certain alleged criminal circles and thus , in essence , accused him of serious crimes such as the misappropriation of state funds allocated for agricultural research . He contended that the second applicant had deliberately made false statements damaging to his reputation and that the first applicant , as an acting chief editor , had failed to prevent this . He requested the court to convict the applicants under Articles CARDINAL ( defamation ) and CARDINAL ( insult ) of LAW .","During the trial , the applicants argued that the article had not contained any defamatory or insulting statements about J.A. They maintained that the phrase \u201c the certain known person \u201d did not refer to J.A. The picture of J.A. was placed in the article because of his general achievements in the development of grain farming . Lastly , they noted that the article was concerned with the general situation of the agricultural sector and that it contained no information specifically accusing LAW of any criminal activity .","By a judgment of CARDINAL DATE , ORG convicted the applicants of defamation and insult under LAW and CARDINAL of LAW . Having examined the extracts from the article quoted above ( see paragraph CARDINAL ) , the court noted that the applicants\u2019 denial of the fact that the article had anything to do with PERSON was groundless , because the text of the article clearly mentioned PERSON \u2019s name in full and clearly stated that QUANTITY of grain fields belonged to him . The court went on to find that :","\u201c ... expression by PERSON of the idea of the existence of a mafia that does not exist in reality and his dissemination of this idea through the mass media constitutes defamation , that is , deliberate dissemination of false information tarnishing J.A. \u2019s honour and dignity and damaging his reputation . Therefore , the court finds that , by disseminating [ through the mass media ] the information about the existence of a mafia that does not exist in reality , PERSON committed an offence under LAW , and that , by making and disseminating the statement \u2018 in order to sell , in a timely manner , all the grain from the QUANTITY of hectares of [ ORG ] \u2018 ORG in these regions\u2019 , ORG committed an offence under LAW . The other accused person , PERSON , bears the same criminal responsibility for [ allowing such dissemination as the newspaper \u2019s acting chief editor ] . Accordingly , NORP ORG and PERSON must be found guilty under Articles CARDINAL and CARDINAL of LAW . \u201d","The court sentenced each applicant to CARDINAL months\u2019 imprisonment under LAW and three months\u2019 imprisonment under LAW . By partially merging these sentences , the court fixed a total sentence of CARDINAL months\u2019 imprisonment in respect of each applicant . At the same time , applying section CARDINAL of the Milli Mejlis ( Parliament ) Resolution on ORG in ORG with the Anniversary of the Victory over Fascism in World War II , dated DATE , the court exempted them from serving their sentences .","The applicants appealed . They argued that the article discussed a number of problems in the agricultural sector and did not specifically relate to J.A. The fact that it contained ORG picture and a statement that he possessed QUANTITY of grain fields did not amount to defamation or insult . In respect of that statement , they argued that it was a generally known fact and did not offer any evidence in its support . The applicants also argued that J.A. and ORG had wrongly construed the totality of statements contained in the article as defamatory whereas their intended meaning was harmless .","On DATE ORG upheld ORG judgment .","On DATE ORG upheld the lower courts\u2019 judgments .","Articles DATE and CARDINAL of the LAW guarantee freedom of thought and speech and freedom of the mass media .","Article CARDINAL of the Criminal Code provided as follows :","\u201c Defamation , that is dissemination , in a public statement , publicly exhibited work of art or in mass media , of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation \u2013","is punishable by a fine in the amount of CARDINAL conditional financial units , or by community service for a term of CARDINAL forty hours , or by corrective labour for a term of DATE , or by imprisonment for a term of DATE . \u201d","Article CARDINAL of the Criminal Code provided as follows :","\u201c Insult , that is deliberate humiliation of the honour and dignity of a person , expressed in an obscene manner in a public statement , publicly exhibited work of art or in mass media \u2013","is punishable by a fine in the amount of CARDINAL conditional financial units , or by community work for a term of CARDINAL forty hours , or by corrective labour for a term of DATE , or by imprisonment for a term of DATE . \u201d","According to LAW , persons convicted of a criminal offence may be exempted from serving their sentence by an amnesty act . According to LAW , a convicted person retains a criminal record until his or her conviction is removed or expunged . According to LAW , the conviction of a person dispensed from serving his sentence is considered to be expunged .","The Milli Mejlis ( Parliament ) Resolution on ORG in ORG with the Anniversary of the Victory over Fascism in World War II , dated DATE , exempted a large number of convicts ( with a number of exceptions ) from serving their sentences or the remainder of their sentences . The amnesty applied to persons who had committed a criminal offence prior to the entry into force of the ORG . LAW of the ORG provided as follows :","\u201c Persons sentenced , for deliberate commission of a criminal offence , to imprisonment for a term of DATE shall be dispensed from serving their sentences . \u201d","Article CARDINAL of the Law on Mass Media of DATE prohibits the mass media from , inter alia , publishing defamatory material . According to LAW , editors of mass media sources and journalists may be held liable criminally , administratively or otherwise , if , inter alia , an editor fails to ensure the compliance of the published material with the requirements of this PERSON , or if the published material interferes with an individual \u2019s private life ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79548","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2007,"docname":"DOYLE v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","The applicant moved to GPE in DATE where he has resided ever since . On DATE , he enquired about registering on the electoral role in GPE .","On DATE ORG ( ORG ) stated that on the basis of ORG only nationals resident overseas for DATE could register to vote in GPE general and NORP elections . It was pointed out that he could be reinstated on the electoral role if he returned to live in GPE and that he was entitled to vote in the NORP elections in GPE as a citizen of ORG . It was also drawn to his attention that eligibility to vote in other countries generally depended on domestic law but that nationality was generally a requirement : he could therefore apply for NORP nationality , or dual nationality if he did not wish to lose his NORP nationality . By way of general information , custom and practice was said to differ in GPE , NORP citizens overseas losing the right to vote after DATE and no overseas NORP citizen being allowed to vote at all .","The Representation of the People Act DATE provided for the first time for GPE citizens living overseas to be able to register to vote in general and ORG elections in GPE . The applicable time - limit was DATE , which was extended to DATE by LAW DATE ( entry into force DATE ) .","The Representation of the People Act DATE , after debate in both ORG , considered however that DATE was a more appropriate period and the legislation was amended as from DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59164","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2001,"docname":"CASE OF WALDER v. AUSTRIA","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["On DATE ORG acting as ORG ( PERSON CARDINAL.Instanz , \u201c the Agricultural Authority \u201d ) received a motion dated DATE for opening land consolidation proceedings at GPE in the municipality of ORG , signed by the land owners concerned including the applicant .","On CARDINAL DATE ORG ex officio opened the GPE land consolidation proceedings ( PERSON ) , involving property in ORG of which the applicant and his siblings are co - owners .","On CARDINAL DATE ORG held a hearing with the land owners concerned as regards the provisional transfer of land ( vorl\u00e4ufige PERSON ) . The majority of land owners accepted the authority \u2019s proposal , whereas the applicant opposed it . At the close of the hearing the authority orally delivered the decision ordering the provisional transfer of land and informed the participants that no remedy was available against it under ORG DATE ( ORG ) .","On DATE ORG issued the consolidation scheme ( Zusammenlegungsplan ) .","On DATE ORG upon , inter alia , the applicant \u2019s appeal , set aside the consolidation scheme on the ground that ORG had failed to carry out a proper valuation of the plots of land involved . Further , it declared that the area had to be cultivated as provided for in the provisional transfer of land of CARDINAL DATE until a new consolidation scheme was issued .","On DATE ORG ( Verwaltungs - gerichshof ) , upon the complaint of the applicant and his co - owners , quashed ORG declaration that the consolidation area had to be cultivated as provided for in the provisional transfer until a new consolidation scheme was issued . It found that ORG had not been competent to make such a declaration . It was only called upon to decide on the merits of the case which had been before ORG , i.e. in the present case it had to decide on the lawfulness of the consolidation scheme . In any event , the decision on the provisional transfer of land had become final DATE .","After having held a hearing on DATE , ORG issued an occupation and valuation schedule ( PERSON ) .","On DATE ORG dismissed the applicant \u2019s appeal . It noted that the applicant had not contested the occupation schedule and had not submitted any arguments as regards the valuation of specific plots of land . There were no reasons to depart from ORG findings .","On DATE ORG ( Verfassungs - gerichtshof ) declined to deal with the applicant \u2019s complaint and referred the case to ORG .","On DATE ORG dismissed the applicant \u2019s complaint , finding that he had not submitted any specific objections against the occupation and valuation schedule .","On DATE ORG received further documents relating to a number of changes in the valuation of land .","On CARDINAL DATE ORG issued a new consolidation scheme . It found , having regard to the valuation of the land , that the difference in value between the plots the applicant had owned prior to the proceedings and the plots allocated to him was less then PERCENT which were admissible under LAW . For this difference it ordered payment of compensation . The consolidation scheme was open to public inspection at the ORG local authority during DATE in DATE .","The applicant did not appeal against the consolidation scheme which , following its publication , became final on DATE . However he appealed against the notification of CARDINAL DATE by which ORG had informed the parties of the publication of the consolidation scheme .","On DATE ORG rejected the applicant \u2019s appeal as being inadmissible . It noted that the said appeal was directed against the notification of CARDINAL DATE , which was in itself not subject to appeal .","On DATE the Constitutional Court declined to deal with the applicant \u2019s complaint and referred the case to ORG .","On DATE ORG dismissed the applicant \u2019s complaint .","NORP By decision of DATE ORG closed the consolidation proceedings following the entry of all changes of property in the land register in DATE and the final settlement of the costs in DATE .","On DATE ORG dismissed the applicant \u2019s appeal against the decision of DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91461","languageisocode":"ENG","respondent":"ALB;AUT;BEL;BGR;BIH;HRV;CYP;CZE;DNK;ESP;FIN;FRA;DEU;GRC;HUN;IRL;ITA;LUX;MDA;MKD;MLT;NLD;NOR;POL;PRT;ROU;SCG;CHE;SVK;SVN;SWE;TUR;GBR;UKR","branch":"ADMISSIBILITY","date":2008,"docname":"BOIVIN v. 34 MEMBER STATES OF THE COUNCIL OF EUROPE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , who has dual NORP and NORP nationality , was born in DATE and lives in GPE ( GPE ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","ORG ( \u201c ORG \u201d ) was created in DATE for the purpose of supervising air traffic control in the airspace of its member GPE , which have included GPE and GPE since the beginning .","By a decision of ORG \u2019s Director General dated DATE , the applicant was appointed to the post of chief accountant at ORG ( a body which is part of ORG and is situated in GPE ) for a renewable term of DATE .","On DATE ORG \u2019s Director of ORG notified the applicant that his appointment had been cancelled following a complaint by another official of the organisation who claimed that there had been no notice of competition for the vacancy filled by the applicant . After a specific competition the applicant was appointed again . However , the same official challenged the applicant \u2019s new appointment on the ground that there had been no substantiated report and obtained its cancellation .","A fresh recruitment procedure was organised to fill the vacancy . However , the applicant \u2019s name was not included on the list of qualified candidates drawn up by the new selection board . As a result , ORG \u2019s Director General decided not to appoint him to the post . On DATE the organisation \u2019s Director of ORG sent the applicant a letter notifying him of the termination of his employment on DATE and inviting him to discuss compensation with the legal department .","After filing a number of internal administrative complaints , the applicant took his case to ORG ( the \u201c LOC \u2013 having sole competence to settle all disputes between ORG and its staff ) to challenge the cancellation of his appointment and to seek compensation for the injury caused to him .","In a judgment of DATE ( notified to the applicant on DATE ) , the LOC , finding that the recruitment procedure had not been flawed , upheld the decisions cancelling the applicant \u2019s appointment . However , observing that ORG had \u201c fail[ed ] in its duty ... to protect [ the applicant ] from the injury caused by the quashing of an appointment he [ had ] accepted in good faith \u201d , the ILOAT partly granted the applicant \u2019s compensation claim and awarded him MONEY in damages .","The International Convention relating to Cooperation for the Safety of Air Navigation ( the \u201c LAW \u201d ) , signed in GPE on CARDINAL DATE , established , as provided in LAW ORG ) to create a uniform NORP air traffic management system . DATE Eurocontrol Convention provides that \u201c [ t]he Organisation shall have legal personality \u201d .","Under LAW , annexed to LAW , the ORG has \u201c sole jurisdiction in disputes between the ORG and the personnel of the ORG , to the exclusion of the jurisdiction of all other courts and tribunals , national or international \u201d .","ORG was founded in DATE as the \u201c ORG \u201d and since DATE has operated as a tripartite agency of ORG that brings together representatives of governments , employers and workers from its member ORG . Its Administrative Tribunal hears complaints from officials or former officials of ORG and the other international organisations that have recognised its jurisdiction . The relevant provisions of the Tribunal \u2019s Statute are as follows :","\u201c ...","The ORG shall also be competent to hear complaints alleging non - observance , in substance or in form , of the terms of appointment of officials and of provisions of LAW of any other international organisation meeting the standards set out in the FAC hereto which has addressed to the Director General a declaration recognising , in accordance with its LAW or internal administrative rules , the jurisdiction of the ORG for this purpose , as well as its Rules of Procedure , and which is approved by ORG . \u201d","\u201c CARDINAL . The ORG shall take decisions by a majority vote ; judgments shall be final and without appeal .","NORP The reasons for a judgment shall be stated . The judgment shall be communicated in writing to the Director General of ORG and to the complainant .","... \u201d","Article XII \u00a7 CARDINAL of the Annex to the ILOAT \u2019s Statute reads as follows :","\u201c In any case in which ORG of an international organisation which has made the declaration specified in LAW ORG challenges a decision of the ORG confirming its jurisdiction , or considers that a decision of the ORG is vitiated by a fundamental fault in the procedure followed , the question of the validity of the decision given by the ORG shall be submitted by ORG concerned , for an advisory opinion , to ORG . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83269","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF BAGEL v. RUSSIA","importance":4,"conclusion":"Violation of Art. 3;No violation of Art. 3","judges":"Loukis Loucaides","text":["The applicant was born in DATE and lives in GPE .","On DATE and DATE and on DATE the applicant was charged with unlawful business activities , tax evasion and fraud , respectively . CARDINAL criminal cases against the applicant were initiated .","On DATE the applicant was remanded in custody .","On DATE the CARDINAL criminal cases against the applicant were joined .","From DATE to DATE the prosecutor 's office of GPE extended the preliminary investigation CARDINAL times in view of the complexity of the case .","On DATE the bill of indictment against the applicant was issued .","On DATE the case was transmitted to ORG .","On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment .","On CARDINAL DATE ORG commuted the term of imprisonment to DATE and DATE and upheld the remainder of the judgment .","The applicant was released on DATE .","Following his arrest on DATE the applicant was detained in a temporary detention centre in GPE ( ORG \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u043e\u0433\u043e \u0441\u043e\u0434\u0435\u0440\u0436\u0430\u043d\u0438\u044f \u0433. PERSON ) . Thereafter , the applicant was transferred to the pre - trial detention centre no . GPE .","In the course of the preliminary investigation the applicant was returned to the temporary detention centre several times in order to participate in investigative measures . The applicant submitted , and the Government did not dispute , that he had spent DATE in total in the temporary detention centre . The parties did not specify the dates when the transfers to the temporary detention centre had taken place .","It is clear that from DATE the applicant was held in the temporary detention centre in a cell measuring QUANTITY m. The applicant submitted that he shared the cell with QUANTITY inmates , that there had been no beds in the cell and that the inmates had to sleep on the floor .","According to the Government , the exact number of detainees per cell could not be established because the registers had since been destroyed . The ORG also submitted that the applicant 's cell had been equipped with beds .","From DATE to CARDINAL DATE the applicant was held in the pre - trial detention centre no . GPE in GPE .","The parties submitted the following information concerning the cells where the applicant had been held .","Relying on a certificate issued on DATE by the pre - trial detention centre governor , the Government submitted that the applicant had been held in cell no . CARDINAL from DATE to CARDINAL DATE and from DATE to DATE . The cell measured QUANTITY . m ; was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the certificate , at that time the pre - trial detention centre , which is designed to accommodate CARDINAL persons , housed CARDINAL inmates .","NORP The applicant submitted that the cell measured QUANTITY . m and had been severely overcrowded .","The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL inmates .","The applicant submitted that the cell measured QUANTITY . m and had been severely overcrowded .","The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured CARDINAL sq . m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .","The applicant submitted that the cell measured QUANTITY m and had been overcrowded .","The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .","The applicant submitted that the cell measured QUANTITY m and had been overcrowded .","The Government submitted that from DATE to DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY . m ; it was equipped with CARDINAL beds and accommodated CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .","The applicant disagreed with the Government , claiming that during DATE of his stay in cell no . CARDINAL it had accommodated up to CARDINAL inmates . As a result , inmates had to take turns to sleep or slept on the concrete floor . He submitted written statements by CARDINAL of his former cellmates , according to which cell no . CARDINAL measured QUANTITY m and had been severely overcrowded .","The Government submitted that from DATE to CARDINAL DATE the applicant had been held in cell no . CARDINAL . The cell measured QUANTITY . m ; it was equipped with CARDINAL beds and accommodated up to CARDINAL inmates . According to the same certificate , at the material time the detention centre housed CARDINAL to CARDINAL inmates .","The applicant submitted that the cell measured QUANTITY m. He did not comment on the number of inmates in the cell .","Relying on the certificate issued on DATE by the detention centre governor , the Government submitted that the conditions in all of the cells had been satisfactory . In particular , the cells had been equipped with a lavatory pan separated from the living area and the cell windows had not been covered with metal shutters . The certificate did not describe the state of the cells during the period of the applicant 's detention from CARDINAL DATE to CARDINAL DATE .","The Government submitted that the applicant had been allowed TIME DATE walks in the courtyard .","The applicant submitted that a lavatory pan had not been separated from the living area and offered no privacy ; it had been located within CARDINAL or QUANTITY from the dining table . The cell windows were covered with metal shutters and let no air through . There was no ventilation in the cells .","The applicant pointed out that the sanitary conditions in cell no . CARDINAL had been satisfactory .","DATE the applicant was held in solitary cell no . CARDINAL on suspicion of having the HIV virus . The applicant submitted that the cell had been a punishment cell , located in the basement with no access to daylight or fresh air . He also submitted that he had not been given food for DATE of his stay in that cell because he had not been provided with any cutlery or tableware by the detention centre administration . According to the certificate of CARDINAL DATE issued by the detention centre governor and submitted by ORG , cell no . CARDINAL was a solitary confinement cell rather than a punishment cell . The ORG also submitted documents showing that the cell had a window and that the applicant had been provided in good time with cutlery , tableware and other necessary items .","The applicant submitted that during the period of his detention his spine had hurt but he had been refused medical assistance . The Government provided the ORG with the applicant 's medical file , according to which the applicant had received treatment for spinal osteochondrosis at the detention centre 's medical unit .","The applicant was transported from the pre - trial detention centre to the courthouse on CARDINAL occasions , the last time on CARDINAL DATE . He offered the following description of DATE of transport .","On DATE of the hearings he had been woken up at TIME At TIME he had been taken from his cell to the so - called \u201c assembly \u201d cell , together with other detainees who had a hearing on DATE .","NORP The applicant had not normally arrived back at the prison until TIME and had been held in the \u201c assembly \u201d cell until TIME During DATE he had received no food or outdoor exercise and had often missed the DATE shower .","The Government submitted that on DATE of transport the applicant had been woken at TIME and taken to the court in the prison van . He would normally come back to the prison TIME According to the certificate of DATE issued by the detention centre governor , on DATE of transport the applicant had been fed in the morning and had been given a packed meal in accordance with the order of ORG of DATE .","The applicant pointed out that the detention centre administration had started to give packed meals to detainees after DATE when the respective order was adopted by ORG , whereas he had been released on DATE .","Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government . Section CARDINAL provides that detainees should be held in conditions which meet sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware , cutlery and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .","Annex CARDINAL to the Order of the Ministry of Justice of CARDINAL May CARDINAL no . CARDINAL ( as amended on DATE ) set detailed DATE standards for free food , including packed meals , which were given to detainees at the material time ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57574","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":1976,"docname":"CASE OF SCHMIDT AND DAHLSTR\u00d6M v. SWEDEN","importance":2,"conclusion":"No violation of Art. 11;No violation of Art. 14+11","judges":"","text":["The applicants are NORP citizens . Mr. PERSON is a professor of law at ORG and Mr. PERSON is an officer in ORG .","The applicants are members of trade unions affiliated to CARDINAL of the main federations representing ORG employees , namely ORG ( ORG FAC , abbreviated to ORG ) in the case of Mr. PERSON and ORG ( PERSON , abbreviated to ORG ) in the case of Mr. PERSON .","In DATE , after expiry of CARDINAL collective agreement and during negotiations for a new agreement , the ORG unions called selective strikes not affecting the sectors in which worked the applicants , who thus did not come out on strike . Mr. PERSON and Mr. PERSON complain that on conclusion of the new agreement , they , as members of the \" belligerent \" unions , were denied certain retroactive benefits paid to members of other trade unions and to non - union employees who had not participated in the strikes .","General background","For DATE , workers and employers in the private sector in GPE have traditionally enjoyed the right to form and join trade unions and associations and to take action in defence of their occupational interests without interference by the ORG .","Certain principles of labour law which had evolved in practice were codified in DATE and DATE by the following legislation :","( i ) the DATE LAW ( lag om kollektivavtal ) ;","( ii ) the DATE LAW ( lag om arbetsdomstol ) ; and","( iii ) the DATE Act on the Right to Organise and Negotiate ( lag om f\u00f6renings - och f\u00f6rhandlingsr\u00e4tt ) .","LAW deals with collective labour agreements between employers or ORG associations and trade unions . It specifies in particular the legal effects of such agreements . For example , the parties may not take strike or lock - out action in regard to an issue regulated by a collective agreement in force between them .","The DATE LAW contained rules governing the composition , jurisdiction and procedure of ORG . ORG was competent to hear cases of alleged violation of LAW on the Right to Organise and Negotiate . It also had jurisdiction in disputes relating to the interpretation or application of collective agreements , but proceedings could only be brought by a party to the agreement in issue . Unions or non - union employees to whom such an agreement had been made applicable ( paragraph CARDINAL below ) were obliged to bring their disputes before the ordinary courts or administrative courts , as the case might be .","The above - mentioned LAW of DATE guarantees CARDINAL distinct rights to the parties on the labour market , namely the right to organise and the right to negotiate .","The right to organise is defined in LAW as being the right of employers and employees to belong to an ORG organisation or a trade union , to exercise their rights as members of that organisation or union , and to work for an organisation or a union or for the formation of an organisation or a union , without interference or pressure by the other party . LAW specifies that the right to organise shall be considered as being violated \" if measures are taken either by employers or by employees to constrain any employee or employer , as the case may be , to refrain from becoming a member of , or to resign from , an association , to refrain from exercising his rights as a member of an association , or to refrain from working for an association or for the formation of an association , and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer , as the case may be , on the ground that such employee or employer is a member of an association , exercises his rights as a member of an association or works for an association or for the formation of an association \" .","The only way in which such associations enjoy the protection of the LAW is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as intervention in the affairs of the association .","The right to negotiate is defined in LAW as being \" the right to institute negotiations regarding conditions of employment or relations between employers and employees in general \" . It imposes on the other party an obligation to enter into negotiations , to attend meetings for negotiations and , where necessary , to make proposals for the settlement of the issues involved . This provision is applicable to all trade unions .","DATE , the ORG determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the ORG and the employees .","As from DATE , the DATE LAW ( statstj\u00e4nstemannalag ) has virtually assimilated ORG employees to employees in the private sector as regards trade union rights , strikes , lock - outs , etc . The LAW made LAW , the DATE LAW and LAW on the Right to Organise and Negotiate applicable in the public sector . Furthermore , the LAW provided for collective agreements to be concluded , subject to certain exceptions , between the National Collective Bargaining Office ( Statens GPE , hereinafter referred to as \" the ORG \" ) , representing the ORG as employer , and the organisations of ORG employees . ORG has a nominee on the governing board of the ORG .","The DATE legislative reform was facilitated by the centralised structure of the NORP trade union movement ; CARDINAL factor which greatly contributed to its adoption was the conclusion in DATE of LAW ( slottsbacksavtalet ) between the ORG and the CARDINAL main trade union organisations of ORG employees , namely :","( i ) ORG ( PERSON , abbreviated to GPE and known prior to DATE as Statstj\u00e4narkartellen ) ,","( ii ) ORG ( ORG ) ,","( iii ) ORG ( ORG ) ,","( iv ) ORG ( Tj\u00e4nstem\u00e4nnens Centralorganisations Statstj\u00e4nstemannasektion , abbreviated to ORG ) .","According to the information at the disposal of the ORG , these federations represent the large majority of NORP ORG employees : CARDINAL out of the CARDINAL whose terms of employment are negotiated by the ORG . CARDINAL trade unions are affiliated to these organisations . The few independent trade unions represent CARDINAL ORG employees in all .","Insofar as they are union members at all , university teachers and army officers generally belong to ORG and ORG respectively . These CARDINAL organisations , which are respectively open to staff possessing a university degree or the school leaving certificate ( the equivalent of the baccalaur\u00e9at ) , recently merged after the case had been brought before the Commission .","According to the trade ORG own published figures , the number of ORG members in respect of whom the ORG conducts collective negotiations was CARDINAL in DATE and DATE ; it rose to CARDINAL in DATE and was CARDINAL at DATE . The university ORG union affiliated to ORG had CARDINAL members in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL at DATE . ORG had CARDINAL members in DATE , CARDINAL in DATE and CARDINAL at DATE . The army ORG union affiliated to ORG had CARDINAL members in DATE , CARDINAL in DATE and CARDINAL at DATE ; it would appear that in DATE its membership had fallen to CARDINAL or CARDINAL .","Clause CARDINAL of the above - mentioned LAW provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees\u2019 behalf by the \" main organisation \" concerned , unless the ORG and the \" main organisation \" agree otherwise .","ORG of DATE relating to LAW ( ORG om vissa statliga kollektivavtal m.m . ) includes the following provisions :","\" Collective agreements as to such conditions of employment or service as are determined by the King - in - Council or by ORG shall be concluded conditionally on the agreement being sanctioned by the King - in - Council . \"","\" An ORG which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers , notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement . \"","Collective agreements in GPE are normally concluded for a period of DATE . For various reasons , however , the new collective agreement is often concluded some time after the previous agreement has expired . In such cases , the new agreement has often specifically provided that its terms shall apply retroactively as from the date of expiry of the previous agreement . In the case of a strike during the bargaining period , on the other hand , employers - both in the public and private sector - have customarily refused to grant retroactive benefits in order to deter unions from taking industrial action in the future ( application of the principle that \" a strike destroys retroactivity \" ) .","Negotiations in the public sector of the labour market are centralised in that they are conducted by the federations on behalf of their member unions . Moreover , strikes and other collective action may not be taken by the different trade unions independently but rather on the basis of a decision by , or after receiving the approval of , the federation concerned , which chooses and designates in accordance with its pre - arranged policy or tactics those of its members who are to take part in the action . According to the present practice , the negotiations between the ORG and the federations result in CARDINAL single agreement which regulates the increase in salaries , the grading of different categories of employees , working TIME , various salary allowances , etc . , and which applies , as a result of LAW referred to above ( paragraph CARDINAL ) , to all categories of ORG employees , including those who are not represented by the federations . The agreement is normally signed by all the federations .","The question whether an individual employee has any means of challenging his union \u2019s decision to go on strike is a matter exclusively governed by the internal rules of the union concerned . These may provide for a right to ask for a secret ballot or for other rights to object to the union \u2019s decisions to take industrial action .","The law described above at paragraphs CARDINAL has in DATE undergone various changes which , being subsequent to the facts at issue , are not relevant for the present case .","Facts of the particular case","In DATE a global agreement for DATE was concluded by ORG and the CARDINAL federations . When this period expired on DATE , the parties were still engaged in negotiations regarding the new global agreement . No agreement was reached and ORG was appointed , but negotiations before it broke down as well . Consequently , ORG and ORG proclaimed selective strikes which became effective on DATE and involved CARDINAL members . This resort to strike action , which was quite lawful ( see paragraphs CARDINAL and DATE above ) , did not apply to university teachers or the ORG so that neither Mr. PERSON nor Mr. PERSON took any part in the strikes .","The ORG retaliated and , on DATE , CARDINAL members of ORG and ORG were locked out . This affected all university teachers belonging to ORG , including Mr. PERSON , and some officers belonging to ORG , but not Mr. PERSON . New strikes and lock - outs were proclaimed , but did not become effective . On DATE , an Act was promulgated which gave the King - in - Council power to order the prolongation of certain collective agreements for a period of DATE , but not extending beyond DATE , provided that collective industrial action threatened vital public interests . By virtue of this LAW the previous collective agreement was reinstated on DATE for a period of DATE and all strikes and lock - outs terminated forthwith .","Subsequent negotiations before ORG resulted in DATE in a new global agreement for DATE . According to this agreement , certain posts were upgraded and the salary scales were generally increased retroactively as from DATE . Clause CARDINAL , however , provided for an exception in this respect :","\" Officials who were members DATE and CARDINAL DATE ( or any part of this period ) of organisations that organised industrial action for any part of this period , shall not be entitled from DATE to CARDINAL DATE to the increased wage benefits applicable under the agreement , unless ORG decides otherwise . This declaration also concerns other officials if they took part in any such industrial action . \"","The agreement was only signed by ORG and GPE . ORG and ORG refused since they considered the terms unacceptable . The agreement , and in particular clause CARDINAL , was nevertheless applied to their members by virtue of LAW above - mentioned Royal Order ( paragraph CARDINAL ) .","According to the applicants , during the negotiations GPE and ORG had urged that the non - retroactivity clause should not be included in the agreement and expressed the opinion that it properly belonged to an agreement between the ORG and the CARDINAL organisations concerned , ORG and ORG . GPE and ORG declared this expressly and inserted a reservation in the record before putting their signatures to the agreement . ORG had , however , attempted to entice to itself some members of ORG , which was in its opinion a purposeless organisation , and had in fact written to the applicant PERSON in this vein .","As a result of the agreement , members of ORG and ORG , insofar as they were upgraded , did not receive the higher salary for the period from DATE , nor did they benefit from the general increase in the salary scales during the same period , regardless of whether or not they had been on strike . ORG employees who were not members of ORG or ORG but who had all the same participated in the strike , were also refused the benefit of retroactivity .","The exception clause applied to both applicants as members of ORG and ORG , even though they themselves had not gone on strike at all . Mr. PERSON was affected for the period from DATE to CARDINAL DATE , being the date when he was locked out and thus deprived of his salary . Mr. PERSON , who was upgraded under the new agreement , was affected for the whole period DATE . During these periods the applicants performed work for a lower salary than that paid to other employees who were in the same salary brackets but not members of ORG or ORG . Their financial losses amounted to ORG . CARDINAL and ORG . CARDINAL respectively .","Mr. PERSON , following the conclusion of the collective agreement , gave notice to the ORG that , through his special treatment in regard to wages , his right to organise had been violated . When the ORG nevertheless refused him the benefit of retroactivity , ORG and ORG brought an action against the ORG before ORG under LAW on the Right to Organise and Negotiate , seeking on behalf of the applicants ( and a third person who was also a member of ORG ) , inter alia :","( i ) a declaration that the measures taken by the ORG constituted a violation of the applicants\u2019 right to organise and that this involved an interference with the affairs of ORG and ORG ;","( ii ) a declaration that clause CARDINAL of the agreement of DATE was of no effect in regard to the applicants ;","( iii ) an order that the ORG pay compensation to the applicants for financial loss and infringement of their right to organise .","ORG and ORG asserted that the ORG had infringed their ORG right to organise as guaranteed in LAW since , with regard to retroactive wage benefits , they were subjected to special treatment in comparison with members of ORG and GPE and non - union officials . ORG denied any such infringement since members of ORG and ORG had been refused the benefit of retroactivity only for the reason that the ORG wanted to maintain the principle that \" a strike destroys retroactivity \" . A comparison between ORG and ORG members , on the one side , and members of ORG and GPE and non - union officials , on the other , did not provide any basis for the conclusion that the ORG acted on such a basis or with such a purpose as was envisaged by LAW .","In its judgment of CARDINAL DATE , ORG unanimously rejected the claim of the ORG unions . ORG first confirmed the parties\u2019 common view that the right to organise did not exclude the possibility for the ORG to enforce the principle that a strike destroys retroactivity . The adoption of such a position , and its enforcement after a conflict , were not to be regarded in themselves as an attack on the right to organise . Furthermore , the employer \u2019s duty to respect this right did not include any obligation in principle to pay equal wages to union and non - union employees or to members of different organisations . The mere fact that different wages were accorded to different groups of employees did not by itself lead to the conclusion that a measure violating LAW had been employed . However , any favouring either of members of the organisation which reached agreement or of non - union employees , with the aim of exercising against the members of the other organisation the type of pressure envisaged in LAW , would constitute a violation of that provision .","The ORG then found that no such purpose on the part of the ORG could be established . In particular , no support had appeared for the idea that the ORG intended to induce members of ORG and ORG to switch over to ORG and GPE . In this context , the ORG assumed that the latter organisations would also have been refused retroactivity if they had organised industrial action during the process of negotiations .","With respect to non - union employees the ORG found that the reason why they were granted a special benefit had nothing to do with their position as being non - union . Any procedure designed to refuse the benefit of retroactivity generally to non - union employees in sectors where ORG and ORG were dominant or representative obviously could have become very complicated and time - consuming . Moreover , no recognised norms existed for determining such sectors , and the concept of representation was ambiguous and disputed . The ORG then referred to the ORG \u2019s failure to negotiate an agreement which would exclude retroactivity to all non - union employees within the sectors in which ORG and ORG were representative . In this respect the ORG considered that the facts of the case did not support the conclusion that this failure showed any intention on the part of the ORG to violate the right to organise . Otherwise , the ORG would , as soon as CARDINAL federation organised industrial action , be barred from upholding the principle that a strike destroys retroactivity in any other way than by refusing retroactive validity for agreements concluded with respect to all employee organisations . Such a general limitation of the ORG \u2019s possibilities of upholding the principle could not be based on LAW .","In the case before it , the ORG did not consider the granting of retroactive benefits to non - union employees who had not been on strike as proof of any purpose to violate the right to organise . In the ORG \u2019s opinion , the parties had not been able to present anything more than quite uncertain information on the total number of non - union officials or on their field of employment . ORG indicated that the GPE view concerning the ORG \u2019s purpose in its treatment of non - union officials might have appeared more reasonable if it had been possible to show that the large majority of non - union officials were active within the main field of activity of ORG and ORG . Conversely , it would be less reasonable to take notice of the treatment of the group of non - union officials if these could primarily be classified within the field of recruitment of GPE and ORG The uncertainty in regard to these circumstances argued , in the ORG \u2019s conclusion , in favour of the GPE declaration that its purpose did not extend beyond upholding the principle that a strike destroys retroactivity .","In their application , lodged with the ORG on DATE , the applicants complained that in the particular circumstances the implementation of the ORG \u2019s policy regarding payment of retroactive benefits had amounted to preferential treatment , in particular in comparison with non - union employees , and had consequently violated LAW ( LAW ) of the Convention .","The Commission declared the application admissible by a decision of DATE .","During the examination of the merits , the applicants relied on LAW ) and also LAW , read in conjunction with LAW ( article DATE ) .","In its report of CARDINAL DATE , the ORG :","( i ) confirmed its opinion , previously expressed in the report in the NORP ORG case , that LAW para . CARDINAL ( LAW ) may legitimately extend to cover ORG responsibility in the field of labour - management relations and thus to provide some protection for unions against interference by employers ;","( ii ) expressed the opinion :","- by CARDINAL votes to CARDINAL with CARDINAL abstention , that the ORG \u2019s policy of denying retroactive benefits to non - striking members of belligerent unions did not in the circumstances infringe the applicants\u2019 right , under LAW para . CARDINAL ( LAW ) , to form and join the trade unions ;","- that in view of the preceding finding , the ORG was not called upon to examine whether the action complained of was justified under LAW para . CARDINAL ( LAW ) ;","- by CARDINAL votes to CARDINAL with CARDINAL abstentions , that the differential treatment complained of was in the circumstances justified as an industrial relations policy and that there had been no violation of LAW read in conjunction with LAW para . CARDINAL ( article CARDINAL + CARDINAL - CARDINAL ) .","The report contains a separate concurring opinion ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["11","14"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114166","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2012,"docname":"KO\u00c7AK v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr A. Erkol , a lawyer practising in GPE .","On DATE the applicant was operated on in ORG . In the consultation and examination form it was noted that the applicant was complaining of weakness in the right leg as well as occasional urinary incontinence and that he had tethered cord syndrome , a disorder of the spinal column .","On DATE his catheter was removed . However , as he was not able to pass urine it was reinserted .","He was discharged from the hospital on DATE .","He was admitted to the hospital once again on DATE for inability to pass urine . He was discharged on DATE . In the discharge summary form it was noted that the applicant had a permanent catheter . He was diagnosed with neurogenic bladder and prescribed with the use of a catheter CARDINAL times a day .","On DATE the applicant obtained a medical report from the health board of ORG . It reads as follows :","\u201c The applicant who came to our hospital on DATE ... was examined , treated and given recommendations at ORG .","For your information .","Admission - Discharge Dates : CARDINAL","Diagnosis : Neurogenic bladder ( \u201c urinary dysfunction \u201d )","Other issues : The catheterisation of the patient with ... type of catheter CARDINAL times a day for DATE is convenient . \u201d","On DATE he applied to ORG seeking compensation and lodged a criminal complaint against the doctor concerned for breach of duty .","On the basis of a medical expert opinion given by CARDINAL spinal surgeons on DATE , ORG rejected the applicant \u2019s request on DATE .","On DATE he initiated compensation proceedings against the administration .","On DATE the Governorship of ORG did not grant the permission sought for the prosecution of the doctor concerned , basing its decision on a preliminary investigation report . It was observed that the patient \u2019s symptoms had existed prior to the surgery and that they consisted of the development of his progressive neurological disease , namely tethered cord spinal syndrome . On DATE the public prosecutor terminated the investigation for this reason .","NORP Before ORG the administration claimed that the civil action was time - barred ; that in any case the applicant \u2019s complaints had pre - dated the impugned operation ; that the applicant had been operated on DATE for tethered spinal cord syndrome , and that the medical expert evidence had confirmed that the doctor concerned had not been negligent .","ORG noted that on DATE the applicant had been diagnosed with tethered spinal cord syndrome , the symptoms of which included loss of bladder control . Having observed that the applicant had been hospitalised for urinary incontinence on DATE , it stated :","\u201c ... even assuming that at the time of the diagnosis he had not been suffering from this symptom , since he was admitted to ORG on DATE for inability to pass urine without the use of a catheter it should be held that he should have been aware of his condition by that date at the latest . \u201d","The first - instance court concluded that for the purposes of section CARDINAL of LAW the DATE time - limit had started running on DATE and that the case lodged on DATE was therefore time - barred . It declared the case inadmissible on DATE .","The applicant appealed against the decision .","NORP The public prosecutor at ORG pointed out that the time should be calculated from the date on which the person concerned had become aware of the damage . He referred to paragraph CARDINAL of LAW , which stipulates that individuals whose rights have been violated by an administrative action should apply to the administration concerned for redress within DATE of the date on which they were notified or otherwise became aware of the administrative action , and in any case within DATE of the date of the action . He proposed that the judgment of the first - instance court should be quashed , holding that the applicant had become aware on DATE that his neurogenic bladder might have been connected to the surgical operation .","ORG upheld the decision of the firstinstance court on DATE . The final decision was served on the applicant on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90171","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2008,"docname":"CASE OF TUDOR-AUTO S.R.L. AND TRIPLU-TUDOR S.R.L. v. MOLDOVA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants , ORG and ORG , are CARDINAL companies incorporated under NORP law .","On DATE ORG for ORG by ORG of GPE ( \u201c the Service \u201d ) ( PERSON pentru supravegherea asigur\u0103rilor pe l\u00e2ng\u0103 PERSON GPE ) registered the insurance company ORG , founded by CARDINAL private parties ORG , ORG and ORG ( \u201c the founders \u201d ) . On an unspecified date the founders lodged with the ORG a request to register CARDINAL other insurance companies , which on DATE were registered as ORG and TripluTudorAuto ORG They also sought the registration of changes in the ORG founders , namely the replacement of ORG and ORG with other founders , and in one of the company \u2019s names from ORG into ORG On DATE and on DATE the ORG granted their requests .","On DATE ORG no . CARDINAL \u201c on certain regulatory measures of insurance activity \u201d ( see paragraph CARDINAL below ) , according to which insurance companies had to fulfil certain formalities and to obtain new registration certificates before DATE .","On DATE ORG and ORG submitted to the ORG the required documents together with the evidence of increase in their statutory capital CARDINAL NORP lei ( ORG ) , ( MONEY ( ORG ) at the time ) , as provided for by LAW no . CARDINAL , and requested to register the changes in the constitutional documents and to be issued with new registration certificates for insurance activity ( \u201c the certificates \u201c ) . Since the ORG refused to comply with their requests , on an unspecified date each of the applicant companies brought actions against the ORG , seeking to order it to register the requested changes and to issue new registration certificates .","On DATE , during the proceedings before the first - instance court , the ORG only registered the changes in the companies\u2019 statutory capital .","On DATE ORG ruled in favour of the applicant companies and ordered the ORG to issue them with new registration certificates . On DATE the applicant companies were issued with enforcement warrants which stated \u201c for immediate enforcement \u201d . The ORG appealed .","On DATE ORG rejected the appeals of the ORG in both cases . No further appeals were lodged and the judgments became final and enforceable .","The ORG took a number of steps designed to either annul the final judgments or to prevent their enforcement . On DATE and DATE the ORG annulled its decisions of CARDINAL and DATE and of CARDINAL DATE .","On DATE the ORG requested a stay of the enforcement proceedings , which was dismissed by ORG on DATE .","On an unspecified date it asked for a revision of the judgments of DATE . On DATE ORG dismissed the request as unfounded .","On DATE the ORG lodged a new request for a revision of the judgments of DATE . By a final decision of CARDINAL DATE ORG dismissed the request .","In a separate set of proceedings , on DATE ORG fined ORG for failure to comply with the judgments in favour of the applicant companies . Following an appeal lodged by the Director , on DATE ORG quashed the judgment of DATE and discontinued the proceedings against him as statute - barred . Nevertheless , in a separate decision of the same date ORG specifically addressed ORG about the need to enforce the final judgments in order to avoid subsequent damage to ORG interests .","On DATE the ORG issued each of the applicant companies with certificates , but the Minister of Finance did not sign them so that they had no legal force . In DATE the applicant companies requested a bailiff to fully enforce the judgments and to obtain the signature of the Minister of Finance on the certificates .","On DATE and DATE ORG requested the applicant companies to submit certain documents in order to re - register the companies , as provided for by a new law on State registration of enterprises . Since the requests specifically stated that the applicant companies should have submitted the originals of their registration certificates , the latter failed to comply with the requests .","The judgments of CARDINAL DATE have not been enforced to date .","On DATE T.P. ( it appears from the case file that the founder ORG , see paragraph CARDINAL above , had changed his name ) lodged a request to join the proceedings which ended with the final judgment of DATE as a third party . He claimed that he was the owner of a PERCENT share in the applicant company and that the changes to the applicant company \u2019s statutory documents , introduced on DATE , had been adopted without his knowledge .","By a final decision of DATE ORG dismissed ORG request as unsubstantiated .","On DATE T.P. lodged with ORG a request for a revision of the judgment of CARDINAL DATE , relying mainly on the same grounds as in his request of DATE . On DATE ORG dismissed the request as unsubstantiated and statute - barred , since it had been lodged DATE after the date on which ORG had found out about \u201c new relevant circumstances \u201d . T.P. lodged an appeal on points of law .","On DATE ORG upheld his appeal on points of law and quashed the judgment of DATE . It ordered a full re - examination of the case . ORG did not deal with the issue of the DATE time - limit for lodging the revision request .","The outcome of the reopened proceedings is unknown .","The relevant domestic law concerning non - enforcement of a final judgment is set out in GPE v. GPE , no . CARDINAL , \u00a7 CARDINAL , ECHR CARDINALIII ( extracts ) .","The relevant domestic law concerning the revision of a final judgment is set out in PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE .","The relevant provisions of the PERSON no . CARDINAL-XII of DATE \u201c on insurance \u201d , in force DATE and DATE , read as follows :","\u201c Section CARDINAL . Funds and reserves of the insurer","( CARDINAL ) The guarantee of the financial stability of the insurer consists in disposing of a statutory capital tantamount to the volume of its insurance obligations . The minimum statutory capital of the insurer shall constitute CARDINAL lei , in monetary deposits .","Section CARDINAL . The guarantee of the insurer \u2019s solvency","( ... )","( CARDINAL ) The solvability reserve for life and pension insurances shall be composed of the statutory capital , the reserve fund and the long - term ORG reserve and shall constitute not PERCENT of the insured amounts .","( CARDINAL ) The solvability reserve for other types of insurance shall be composed of the statutory capital , the reserve fund , the reserve fund for other types of insurance , and shall constitute not PERCENT of the insured amounts ( ... ) \u201d","\u201c Section CARDINAL . The scope and the main duties of ORG for ORG :","( CARDINAL ) ORG for ORG ( ... ) has the duty to supervise insurance activity , to guarantee the protection of rights of the insured and insurers ( ... )","( CARDINAL ) The main duties of the ORG ( ... ) are :","a ) to examine the constitutional documents of insurance companies submitted for registration ( ... ) ;","b ) to hold a record of the insurers ;","c ) to issue licences for insurance activities ( ... ) ; \u201d","Amendments to Law no . CARDINAL-XII of DATE \u201c on insurance \u201d of CARDINAL DATE , read as follows :","\u201c [ LAW ] the text \u201c CARDINAL lei \u201d is replaced by the text \u201c CARDINAL lei \u201d \u201d","The relevant provisions of Law no . CARDINAL of DATE \u201c on insurance \u201d , read as follows :","\u201c Section CARDINAL . Statutory capital of the insurer ( re - insurer )","( CARDINAL ) The minimum statutory capital of the insurer ( re - insurer ) shall be MONEY ( ... ) .","( ... )","( CARDINAL ) At the moment of registration , the statutory capital of the insurer ( re - insurer ) should be entirely deposited by its founders .","( CARDINAL ) Contributions to the minimum statutory capital shall be entirely deposited in money both at the moment of creation [ of the company ] as well during increase [ of the statutory capital ] .","( CARDINAL ) The means obtained by the potential shareholders of the insurer ( re - insurer ) from loans , bank credits , mortgage or other investments , including investments of other participants of the insurance market ( ... ) can not serve as a source of formation or increase of the insurer \u2019s statutory capital . \u201d","\u201c Section CARDINAL .","( CARDINAL ) Insurers , who hold of licences ( .. ) at the moment of entering into force of the present law , are authorised to continue their activity for DATE , during which period they shall comply with the provisions of the present law , except for the cases provided in paragraphs ( CARDINAL ) .","( CARDINAL ) Licences for insurance activity which had been issued prior to the entering into force of the present law and which are valid for a period longer than the CARDINAL provided for in paragraph ( CARDINAL ) , shall be valid until the expiry of the period for which they had been issued .","( CARDINAL ) Insurers who hold of licences at the moment of entering into force of the present law , shall :","( ... )","( b ) have of a minimum statutory capital in the amount of :","CARDINAL lei \u2013 after DATE from the moment of entering into force of the present law ;","CARDINAL lei \u2013 after DATE from the moment of entering into force of the present law ;","MONEY \u2013 after DATE from the moment of entering into force of the present law ;","CARDINAL lei \u2013 after DATE from the moment of entering into force of the present law ;","CARDINAL lei \u2013 after DATE from the moment of entering into force of the present law . \u201d","The relevant provisions of Government Decision no . CARDINAL of DATE \u201c on certain regulatory measures of the insurance activity \u201d , in force between DATE CARDINALand CARDINAL DATE , read as follows :","\u201c CARDINAL . Insurance organisations , ( ... ) shall increase their statutory capital CARDINAL lei before DATE .","The ORG ( ... ) shall issue new registration certificates to the organisations which comply with the requirements provided for by paragraph CARDINAL of the present Decision .","In order to be issued with new certificates , the insurance organisations shall :","- pay the ORG a fee in the amount of CARDINAL minimum salary ( ... ) ;","- submit the original of the documents which confirm the address , the existence of the [ required ] statutory capital , the real value of its actives accumulated from its own resources , the certificate issued by the fiscal authorities concerning payments to ORG and the certificate of ORG registration of the organisation .","The old - type registration certificates of the insurance organisations shall become void as of DATE . \u201d"],"violated_articles":["13","6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57679","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1991,"docname":"CASE OF F.C.B. v. ITALY","importance":3,"conclusion":"Violation of Art. 6-1+6-3-c;Damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"C. Russo","text":["On DATE , in the course of an armed robbery in the province of GPE , CARDINAL masked criminals killed CARDINAL person and seriously injured another ; they then fled in a car driven by an accomplice .","Among the suspects , who were swiftly identified , was the applicant .","Mr F.C.B. was arrested in GPE on DATE and extradited to GPE on DATE . He was charged with armed robbery , murder and attempted murder , these crimes being aggravated by the fact that he had committed them while wilfully evading arrest under other warrants .","On DATE ORG found him and his CARDINAL co - defendants guilty and sentenced him inter alia to CARDINAL years\u2019 imprisonment .","The applicant and CARDINAL others who had been found guilty appealed , and on DATE ORG of Appeal acquitted them for lack of evidence . PERSON was released on DATE ; in accordance with LAW ( see paragraph CARDINAL below ) , he indicated his address .","ORG and CARDINAL other parties , including the applicant , appealed on points of law . The prosecution \u2019s notice of appeal was served on Mr F.C.B. personally on DATE at the address he had given , which was also that of his mother .","On DATE ORG dismissed the applicant \u2019s appeal , allowed the prosecution \u2019s appeal , and remitted the case to ORG .","Mr F.C.B. had in the meantime entered GPE on DATE . He settled at PERSON and was granted a residence permit there on CARDINAL DATE . He claims that he informed ORG in GPE of his new address , in order for it to be notified to the NORP authorities for \" entry in the civil status register \" . He did not , however , send the authorities an amended version of his declaration of CARDINAL DATE ( see paragraph CARDINAL above ) .","The applicant was arrested in GPE on DATE under a warrant issued in the GPE in connection with proceedings relating to the abduction of a GPE woman .","According to PERSON , after he had been extradited to the GPE the NORP authorities obtained a copy of his criminal record ; furthermore , the judge in charge of the case arranged for his NORP colleagues in GPE and GPE to co - operate in investigations in GPE and asked ORG to have searches of the dwellings of the applicant , his sister and his sister - in - law carried out . The Government did not contest this point , merely stating that they had no detailed information about it .","Mr F.C.B. maintained that he was held in solitary confinement from DATE to CARDINAL DATE , when his conviction by the \u2018 s - ORG became final , and was thus subject to certain restrictions - which were , however , eventually relaxed - on correspondence , visits and contacts with other detainees .","On DATE the President of ORG attempted to serve a summons to appear before that court on the applicant at the address given by him on his release , but neither the applicant nor his mother lived there any more .","On DATE the summons was delivered to PERSON mother , whose new address had been found out in the meantime . The applicant \u2019s lawyer had also been informed on DATE of the hearing date .","The trial opened on DATE in Mr F.C.B. \u2019s absence . His counsel informed the court that , according to close relatives of his client , the latter was in custody in GPE ; he added , however , that he was unable to produce documentary evidence to this effect . The prosecution submitted that there was no objective evidence to show that Mr F.C.B. was in custody and invited the court to try him in absentia as unlawfully absent ( contumace ) . The court decided to do this , but counsel for CARDINAL of the co - defendants asked it to verify the information that Mr F.C.B. was unable to attend the trial , as the applicant \u2019s presence could prove to be of importance for his client . That client and another co - defendant confirmed that Mr F.C.B. was in prison in the GPE ; the one had learnt of it from the newspapers and the other had received a letter from the applicant sent from GPE prison .","The prosecution for their part repeated their submissions . After deliberating in private , ORG confirmed its declaration that PERSON was unlawfully absent , as he had not provided proof that he was unable to attend , despite having been notified in good time of the start of the trial .","On DATE the court sentenced him to PERCENT four years\u2019 imprisonment and issued a warrant for his arrest .","On DATE Mr F.C.B. \u2019s NORP lawyer sent his NORP colleague copies of documents ( CARDINAL summonses to appear before the GPE courts ) showing that his client was in custody . Translations were given to the court on DATE","The applicant \u2019s lawyer appealed on points of law to ORG ; his grounds of appeal were filed in DATE . He submitted that ORG had been wrong in declaring PERSON unlawfully absent and questioned the correctness in law of the judgment . On the first point he argued that the decision itself and the subsequent proceedings were null and void , as it had been impossible for his client to attend the hearing . He said that it was only out of excessive regard for formal propriety that ORG had declined to rule that the applicant was unable to appear , notwithstanding several concurring statements testifying to the fact .","ORG dismissed the appeal on CARDINAL DATE .","It found , firstly , that the appeal court had been right to try Mr F.C.B. as unlawfully absent , as there was no proof that he was unable to attend . The documents produced on CARDINAL DATE ( see paragraph CARDINAL above ) had been offered in evidence only after judgment had been given and therefore had no probative value . With greater diligence the defence could have produced them before the hearing . It could be seen from the statement of appeal that the applicant would have had time to do this , as he had been in custody in the GPE well before the summons to appear was served . ORG held that it was for ORG to assess the alleged inability to attend , and that that court had given proper reasons for its decision .","On DATE the NORP authorities had requested PERSON extradition for the purposes of the judicial investigation concerning him . On DATE , however , ORG dismissed the request as inadmissible , on the grounds that ORG had already given a judgment on the merits on DATE ( see paragraph CARDINAL above ) . The court added that it would consider the matter again in the event of the judicial investigation being reopened as a result of a retrial being ordered by ORG or for some other reason .","The GPE agreed to extradite PERSON to GPE and he is currently in custody there .","According to the information given to the ORG by counsel for the applicant , the applicant will have to return to the GPE to serve DATE imprisonment there , and if the NORP authorities succeed in obtaining his extradition , he will then serve in GPE DATE and DATE of the prison sentence imposed by ORG .","In the PERSON and Others judgment of DATE , the NORP judgment of CARDINAL DATE and ORG judgment of DATE ( Series A no . CARDINAL , p. CARDINAL , paras . CARDINAL ; no . CARDINAL , p. CARDINAL , para . CARDINAL , and p. CARDINAL , paras . CARDINAL ; no . CARDINAL , p. CARDINAL , para . CARDINAL ) the ORG gave a brief description of the NORP legislation then in force as regards notifications and trials in absentia ( contumacia ) .","As to notifications to an accused who has been released but in whose case a final judgment has not yet been given , the first and fourth paragraphs of LAW provide as follows ( translation from NORP ) :","\" An accused held in custody who has to be released for a reason other than a final acquittal ... must at the time of release declare or elect an address [ for service ] by lodging a document with the director of the prison . The director shall enter any declaration he has received in the register specified in LAW and shall immediately notify it to the judicial authority which ordered the release ... .","Any change relating to the address declared or elected must be communicated by the suspect or accused to the authority in charge of the case , as provided for in the first paragraph . Notifications made to the address previously declared or elected shall be valid until such communication has been received . \""],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58762","languageisocode":"ENG","respondent":"FRA","branch":"GRANDCHAMBER","date":2000,"docname":"CASE OF FRYDLENDER v. FRANCE","importance":1,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Elisabeth Palm","text":["NORP In DATE the applicant was engaged as an official employed under an individual contract ( agent contractuel ) by ORG of ORG . Under a contract of CARDINAL DATE he was sent to GPE to work as a technical adviser .","Following an amendment of CARDINAL DATE to the contract of CARDINAL DATE , he was posted to GPE with effect from DATE to head an autonomous section of ORG . Under the authority of the chief commercial adviser of the GPE office , who was himself responsible to the chief commercial adviser at the NORP embassy in GPE , to whom the agricultural attach\u00e9 was also answerable , he was placed in charge of the wines , beers and spirits sector , where he had dealings with exporters and importers and , in particular , the ORG company ( Soci\u00e9t\u00e9 pour l'expansion des ventes des produits alimentaires et agricoles ) .","In accordance with Decree no . CARDINAL - CARDINAL of DATE on the general terms and conditions of service of persons working overseas for the ORG under individual contracts , the applicant was employed on a series of DATE contracts which were to be automatically renewed unless expressly terminated . The ORG could terminate any contract on DATE notice for , inter alia , inadequate performance .","In a letter dated DATE , which was served on the applicant on DATE , the Minister for ORG informed the applicant that , owing to his inadequate performance , he did not intend to renew his contract when it expired on DATE . In a letter dated DATE , served on the applicant on DATE , the Minister informed him of his final decision not to renew the contract , on the ground that , among other matters , the applicant had shown a marked lack of initiative towards importers .","By letters of DATE , DATE and CARDINAL DATE , the applicant lodged CARDINAL applications for judicial review of this decision with ORG . The first sought to have the Minister 's first letter of DATE , which was in the nature of a preliminary to a final decision , set aside . The second was aimed at having the final decision to dismiss the applicant , contained in the letter of CARDINAL DATE , quashed . The third challenged the lawfulness of the appointment of the applicant 's replacement .","In a judgment of DATE ORG , having joined all CARDINAL applications , dismissed them .","On DATE the applicant gave notice of an appeal to the ORG d'Etat on points of law . He lodged a statement of the grounds of appeal on DATE . In a judgment of CARDINAL DATE , which was served on the applicant on DATE , the ORG d'Etat dismissed the appeal , holding , inter alia , that it had been lawful for the Minister to dismiss the applicant on the ground of inadequate performance .","According to LAW no . CARDINAL of DATE laying down regulations governing the terms and conditions of service specific to economic development personnel , \u201c the civil servants of the economic development offices overseas constitute a body of staff responsible to the Minister for ORG . In the performance of their duties they shall be attached to either a diplomatic delegation or a consulate ... \u201d","Article CARDINAL of the decree provides that they are to act as delegates of the Minister for Economic Affairs in respect of all matters relating to GPE 's foreign trade . In particular , they are responsible for studying all problems having a bearing on the NORP economy , supplying information to the various NORP administrative authorities and assisting with the preparation , negotiation and execution of commercial treaties and agreements . They must also participate in various surveys or special projects and in all economic events organised or run by the various ministries or official groups , defend the country 's general economic interests and on that account provide direct assistance , in overseas markets , to NORP businessmen , industrialists and agricultural producers .","ORG has an establishment of CARDINAL staff . Commercial attach\u00e9s second class are recruited from among graduates of ORG ( ENA ) ; commercial advisers of the various classes may in addition be recruited from the ORG civil service . All commercial advisers and attach\u00e9s are posted abroad by order of the Minister for ORG , made after the agreement of the Minister for ORG has been obtained .","In addition , by PERSON no . CARDINAL of DATE , CARDINAL posts of agricultural attach\u00e9 have been created . Agricultural attach\u00e9s are responsible to the head of the relevant economic development office . Their duties are described in LAW no . DATE of DATE : they study , from the technical point of view , problems affecting NORP agricultural development , particularly by seeking outlets in the local market for imports of NORP agricultural produce , and act as advisers during the preparation of negotiations on international commercial agreements and their application , assisting the head of office in his relations with the public administrative authorities dealing with foreign trade matters .","The general terms and conditions of service of persons of NORP nationality working overseas for the ORG or ORG public administrative bodies under individual contracts are laid down by Decree no . CARDINAL - CARDINAL of DATE . The provisions of the decree are not applicable to technical assistance or cooperation staff placed at the disposal of foreign GPE . The different types of post are defined in orders made by the ministries concerned . They may be filled either by non - established employees or by established civil servants .","The relevant provisions of the decree are worded as follows :","\u201c Persons to whom LAW applies shall sign a contract of service . The contract , which must refer to the provisions of this decree , shall specify its duration , the date on which it is to take effect , the staff member 's category , grade and duties , the appropriate residence allowance group , the country of the posting and , where applicable , the family allowance group . \u201d","\u201c Where the staff member was recruited in the country of the posting , the contract must be for a period of DATE . Where the staff member was recruited in GPE or in a foreign country other than the country of the posting , the contract must be for DATE plus the length of his or her official home leave entitlement .","...","A contract does not become final until expiration of the period of probation or training which the staff member may be required to complete immediately after signature of the contract in the country of recruitment . The contract may be terminated by either party without restriction or notice at any time during this traineeship period or on its expiry . \u201d","\u201c The contract shall be terminated : CARDINAL . when it expires , save that it will be deemed to have been tacitly renewed for a period equivalent to its original length unless terminated either by the ORG or by the member of staff DATE before the date on which it is due to expire . Refusal to renew the contract or to sign a new contract shall be deemed a resignation . Such a refusal on the part of the ORG shall be deemed a dismissal , save where a new contract is signed within DATE of the expiry of the previous one ; CARDINAL . at any time if terminated by the ORG on DATE prior notice where the grounds for the termination are redundancy or inadequate performance ; [ or ] in the case of dismissal on disciplinary grounds . \u201d","Article PERSON ) of LAW DATE instituting ORG ( \u201c the LAW \u201d ) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of \u201c employment in the public service \u201d . ORG of ORG has developed a restrictive interpretation of this derogation . In its judgment of CARDINAL DATE in the case of GPE v. GPE ( C-CARDINAL\/CARDINAL , PERSON ) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the ORG or of other public authorities , and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the ORG and a reciprocity of rights and duties which formed the foundation of the bond of nationality .","ORG , to which LAW assigned responsibility for ensuring the correct application of Community rules , noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State .","In a communication of CARDINAL DATE it set itself the task of listing separately those activities which were covered by the derogation and those which were not . It thus established CARDINAL distinct categories of activities according to whether or not they involved \u201c direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State \u201d .","These categories were defined as follows :","\u201c Exclusion of specific activities in the national public service [ from freedom of movement for workers ]","On the basis of current ORG rulings , and bearing in mind the present conditions for establishing the single market , the ORG considers that the derogation in Article PERSON ) covers specific functions of the ORG and similar bodies such as the armed forces , the police and other forces for the maintenance of order , the judiciary , the tax authorities and the diplomatic corps . This derogation is also seen as covering posts in ORG , regional government authorities , local authorities and other similar bodies , central banks and other public bodies , where the duties of the post involve the exercise of ORG authority , such as the preparation of legal acts , the implementation of such acts , monitoring of their application and supervision of subordinate bodies ...","Activities concerned by action in the public service sector","The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by ORG that they would only in very rare cases be covered by the exception in Article PERSON ) of the LAW .","The Commission proposes therefore to implement its action in the following areas by order of priority :","\u2013 bodies responsible for administering commercial services ( e.g. public transport , electricity and gas supply , airline and shipping companies , posts and telecommunications , radio and television companies ) ,","\u2013 public health care services ,","\u2013 teaching in ORG educational establishments ,","\u2013 research for non - military purposes in public establishments .","Each of these activities also exists in the private sector , to which Article PERSON ) does not apply , or may be exercised in the public sector without the imposition of nationality requirements ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78064","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2006,"docname":"CASE OF HAJIYEV v. AZERBAIJAN","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","The applicant was an activist of ORG , an organisation which played one of the key roles in the country 's struggle for independence from GPE . In DATE , when ORG came into power in the country , he was appointed to a number of high military posts and in DATE he became the Commander of ORG .","After ORG lost political power in DATE , on CARDINAL DATE the applicant was arrested and detained on remand . Upon arrest , allegedly , he was not informed of the charges against him and was refused access to a lawyer . On DATE ORG of ORG , acting as a court of first instance , convicted the applicant for attempted murder ( DATE imprisonment ) , abuse of authority at wartime ( DATE ) , intentional abuse of authority ( DATE ) , misuse of weapons ( DATE ) , negligent approach to military service ( DATE ) and humiliation of a subordinate person ( DATE and DATE ) , and sentenced him to a total of DATE imprisonment by merging the sentences .","On DATE the same court , again sitting in first instance , convicted the applicant for \u201c failure to use authority to resist the NORP occupation of the town of PERSON and prevent the subsequent mass killing of the civilians fleeing the town \u201d . The court sentenced the applicant to fifteen years ' imprisonment , merging his previous DATE sentence into this new sentence . The imprisonment period was to be calculated from DATE of the applicant 's arrest on DATE . Pursuant to the old criminal procedure law applicable at that time , both ORG judgments were final and not subject to appeal .","At the time of GPE 's admission to ORG , the applicant 's name appeared in the lists of \u201c alleged political prisoners \u201d in GPE submitted to the experts of the Secretary General . GPE had made a commitment to either release or give a re - trial to all persons identified as \u201c political prisoners \u201d by these experts . However , ultimately , the applicant was not regarded as a political prisoner by the experts of the Secretary General ( see Cases of alleged political prisoners in GPE and GPE , ORG ( DATE ) DATE , Addendum I , DATE , LAW ( III ) , Case No . CARDINAL ( the applicant 's name is transliterated as \u201c PERSON \u201d in this document ) ) .","In DATE a new Code of Criminal Procedure ( hereinafter \u201c CCrP \u201d ) was adopted . Before its entry into force on DATE , on DATE ORG passed the Law On ORG into Force of the Code of Criminal Procedure of GPE ( hereinafter the \u201c LAW \u201d ) , which allowed lodging an appeal under the new CCrP against final judgments delivered in accordance with the old criminal procedure .","On DATE the applicant lodged an appeal with ORG against ORG judgments of DATE and DATE . By a letter of CARDINAL DATE , ORG informed the applicant that , in addition to the appellate complaint , he also had to file a petition in order to restore the appeal period .","According to the applicant , he filed such a petition on DATE . Having not received an answer , he appealed again on DATE and yet again on DATE . In reply to these applications , in its identical letters of DATE and DATE signed by a court clerk ( the Head of ORG ) , ORG informed the applicant that his case would be examined shortly by ORG Cases and that he would be informed of any further developments in due course .","NORP However , during the following period of over a year , despite the applicant 's continuous inquiries , no examination of the case took place and no information in this regard was given to the applicant .","Finally , DATE after lodging his appeal , by a letter of DATE signed by the same court clerk , the applicant was informed that :","\u201c ... in accordance with Article CARDINAL of LAW currently in force , ORG may only examine criminal cases ... based on appeals or protests against first - instance courts ' judgments and other decisions which have not entered into force [ i.e. have not become final ] ... For re - consideration of the firstinstance judgments of ORG of DATE and DATE you are advised to apply to ORG . \u201d","Although , during the same period , the applicant was actively engaged in correspondence with ORG with regard to unrelated proceedings concerning the reduction of his sentence , the applicant did not file a formal appeal with ORG concerning the present case .","On DATE the applicant was pardoned and released from prison pursuant to a presidential pardon decree .","Law of DATE on the adoption and entry into force of LAW ( the \u201c LAW \u201d )","Article CARDINAL : \u201c Judgments and other final decisions delivered by first - instance courts under the [ old ] Code of Criminal Procedure ... before the entry into force of this [ new ] Code , may be reconsidered by an appellate court or ORG in accordance with Articles CARDINAL - CARDINAL , CARDINAL - CARDINAL or CARDINAL of the [ new ] Code of Criminal Procedure . \u201d","Code of Criminal Procedure of GPE of DATE","Article CARDINAL provides that ORG is a court of appellate instance concerning criminal cases and other matters related to criminal prosecution .","Article PERSON provides that ORG has a competence to examine criminal cases and other matters related to criminal prosecution based on appellate complaints or protests against judgments and other decisions of first - instance courts that have not entered into legal force .","Article CARDINAL provides that ORG is a court of cassation instance concerning criminal cases and other matters related to criminal prosecution .","Article PERSON provides that the relevant chambers of ORG have a competence to examine criminal cases and other matters related to criminal prosecution based on cassation complaints or protests against judgments and other decisions of the appellate courts or jury courts .","Article CARDINAL provides that the appellate court must hold a preliminary hearing of the case within DATE after the receipt of an appellate complaint . The parties to the case and the state prosecutor have a right to attend this hearing . These persons must be informed in advance of the time and place of the hearing .","Article ORG provides that , during the initial hearing , the appellate court must determine , inter alia , whether it has competence to examine the appellate complaint and whether the appellate complaint was submitted in accordance with the relevant procedural requirements .","Article CARDINAL provides that , upon the initial hearing , the appellate court may decide , inter alia , to leave the appellate complaint without examination , to forward the appellate complaint to a court having appropriate competence , to reinstate or refuse to reinstate the expired period for filing the appellate complaint , to appoint a judicial hearing for examination of the merits of the appellate complaint , or to refuse to admit the appellate complaint for examination ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113164","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2012,"docname":"BUKS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .","ORG ( \u201c the Government \u201d ) was represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant was diagnosed with diabetes , type II . From DATE the applicant needed to receive regular injections of insulin .","On DATE he was arrested on suspicion of involvement in the organising of human trafficking . On DATE he was admitted to ORG No CARDINAL . DATE the applicant was transferred to the hospital wing of FAC , where he remained until DATE when he was transferred to the medical unit of ORG .","On DATE the lower court found the applicant guilty , sentenced him to CARDINAL GPE imprisonment and ordered the confiscation of his property . The appellate court on DATE took the applicant \u2019s poor health into consideration as well as the fact that the applicant could not be provided with proper medical treatment in prison . As a result the court reduced his sentence by DATE .","NORP In DATE the applicant was transferred to PERSON , from which he was released on DATE after having served his sentence .","According to the applicant , on his admission to the medical unit of ORG he was informed that owing to insufficient funds the prison was not in a position to provide him with insulin , and that he had to rely on his relatives to obtain it for him .","From CARDINAL to DATE the applicant was held in a disciplinary cell in FAC for having committed a disciplinary offence . According to the applicant \u2019s submission , he had had to inject himself with insulin there despite conditions being insanitary .","Meanwhile , from DATE to DATE and from DATE to DATE the applicant was held in ORG short - term detention unit in order to ensure his attendance at the court hearing in GPE . According to the applicant , the conditions there amounted to torture in that he had been denied a consultation with a doctor and food was provided only once per day .","At the applicant \u2019s request ORG ( \u201c the MADEKKI \u201d ) assessed the adequacy of the medical care received by the applicant in FAC in DATE and DATE .","NORP In its report of CARDINAL DATE the ORG found no infringement of the applicant \u2019s right to medical treatment over the period from DATE to DATE . In the course of preparing the report a representative of the PERSON met with the applicant , who did not raise any complaints regarding the quality of medical care he had received . The inspectorate observed that , before the arrest , the applicant \u2019s doctor had repeatedly recommended that he visit an endocrinologist but the applicant had not done so , blaming his busy schedule . The inspectorate concluded that the applicant had been injecting insulin himself following the doctor \u2019s recommendations , and monitoring his sugar levels with the use of a glucometer . The applicant \u2019s overall state of health was considered to be stable .","In several letters dated CARDINAL DATE , CARDINAL DATE and CARDINAL DATE ORG dismissed the complaints which the applicant had brought regarding the medical care he had received and the fact that he had not been provided with insulin in LOC . ORG noted , in particular , that under the ORG medical system the applicant \u2019s relatives were allowed to obtain insulin and syringes free of charge on his behalf .","On CARDINAL and DATE the applicant addressed a similar complaint to the PERSON and ORG . The applicant also drew the PERSON \u2019s attention to the poor conditions in ORG .","On DATE the PERSON drew up a second report concerning the medical care the applicant had received in FAC . It observed that his entire stay in FAC had been spent in the medical unit , where he had been regularly examined by doctors . It noted that the applicant \u2019s sugar level was CARDINAL mmol \/ l and he had been injecting himself with insulin and testing his sugar levels .","With regard to the supply of insulin to the applicant , the PERSON concluded that during his stay in ORG the administration had failed to furnish him with insulin ; that the laboratory testing of his sugar levels had not been carried out regularly , and that he had not had a consultation with an endocrinologist .","With regard to the complaint of a lack of medical care in ORG unit from DATE to DATE and from DATE to DATE , the PERSON noted that the medical unit of ORG had informed ORG that the applicant was permitted to use insulin , certain medications and a glucometer . The PERSON observed that the applicant had not raised any health - related complaints while in the PERSON short - term detention unit , where he had been provided with the standard diet for detainees .","The Office of the Prosecutor in its letter of CARDINAL DATE reminded the applicant that according to his agreement with the medical unit of ORG , from DATE to DATE he had agreed to supply the insulin himself . In the same letter ORG stated that on DATE ORG had purchased insulin especially for the applicant which he had used until his transfer to Jelgava Prison on DATE . The applicant did not complain in this respect to a higher prosecutor .","The applicant \u2019s medical file , as summarised by the PERSON \u2019s reports mentioned above , show that he was diagnosed with diabetes type II in DATE . From DATE he was recommended insulin treatment because his sugar levels occasionally reached CARDINAL - CARDINAL mmol \/ l . DATE , on average , the applicant \u2019s doctor would issue repeat prescriptions for CARDINAL doses of insulin ( Monotard ) . In response to the applicant \u2019s complaints that his sugar levels occasionally reached CARDINAL mmol \/ l the doctor had recommended , on CARDINAL occasions , that the applicant attend self - care and awareness clinics for diabetic patients . The report reveals that the applicant had not done so .","From DATE the applicant received medical treatment in the prison hospital where he was seen by various specialists . The sugar level in his blood and urine was monitored twice a week on average . By DATE , according to prison hospital records , the applicant \u2019s health had improved ; he declined to increase his dose of insulin and agreed on a particular course of treatment with the doctor at the prison hospital .","On DATE , the applicant underwent medical examinations and was then admitted to the prison hospital on DATE , where he remained until DATE , because he was suffering from hyperglycaemia .","On the applicant \u2019s discharge from the hospital in DATE and again in DATE it was recommended that he have his blood and urine sugar levels monitored and be given a tailored diet and medication , including insulin . In the medical unit of ORG he was prescribed insulin and CARDINAL kinds of medication as recommended .","On DATE the applicant \u2019s health was assessed by a medical consultative commission at FAC , which prescribed a particular treatment including an injection of insulin twice per day . The follow - up of the treatment was carried out on average once DATE until DATE . After he had been transferred to the disciplinary cell he was authorised to use CARDINAL other kinds of medication brought from home .","On DATE and DATE and CARDINAL and CARDINAL DATE the applicant \u2019s sugar levels had increased so he was repeatedly admitted to the prison hospital in the period from DATE to DATE , when he was discharged from the hospital at his own request .","The applicant was visited by a doctor before and after his transfer to ORG on DATE , DATE , CARDINAL DATE and DATE . He had not raised any complaints and his health was considered to be satisfactory .","According to a medical report from GPE hospital , the applicant \u2019s former doctor gave the applicant \u2019s wife prescriptions for insulin and the other medicine , at her request , on separate occasions in DATE , DATE and DATE .","At ORG request on DATE ORG explained that under the State \u2013 financed health programme , as in force at the material time , all diabetic patients in GPE received insulin and syringes free of charge , while detention facilities were obliged to purchase insulin for detainees suffering from diabetes from their budgets . Owing to insufficient funds available for medication , the administration of the prison authorised diabetic detainees to receive insulin from outside the prison . Usually family members received prescriptions for insulin from the detainee \u2019s former doctor and brought the insulin to the detainee in prison .","NORP In response to the Government Agent \u2019s questions , ORG ( ORG ) explained that the minimum healthcare requirements of diabetic patients comprised the regular administering of medication , monitoring of sugar levels and treatment for hypoglycaemia . Blood tests should be carried out as required . There was no vital need for an endocrinologist if the sugar levels were satisfactory .","The ORG also noted that it was of crucial importance that diabetic patients had an understanding of their illness . Since there was no special \u201c diabetic diet \u201d , by monitoring the sugar levels of the patient the amount of insulin was to be adjusted according to the quantity of food taken .","Regulations no . CARDINAL of ORG of DATE concern the provision of medical assistance to convicted and detained persons in their place of custody ( see PERSON v. GPE ( dec . ) , no . CARDINAL\/CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110460","languageisocode":"ENG","respondent":"CYP","branch":"ADMISSIBILITY","date":2012,"docname":"EMIN AND OTHERS v. CYPRUS AND OTHER APPLICATIONS","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicants state that they are nationals of the \u201c GPE \u201d . Their names , dates of birth and places of residence are set out in the Annex . They are represented before the Court by Ms Y. PERSON , a lawyer practising in GPE .","NORP The facts of the cases may be summarised as follows . They are relatives of NORP - Cypriot men who went missing in either DATE or DATE during incidents of mounting tension and violence in which NORP or NORP - NORP villages were targeted ( see PERSON for further details ) .","These men were listed as missing persons , the information being given to the NORP authorities , ORG and ORG .","The remains of the missing men have been found during exhumations carried out by ORG for Missing Persons(\u201cCMP \u201d ) in DATE . Further details are set out in the LOC .","In CARDINAL cases , the applicants wrote to the NORP authorities requesting information about any investigation into the disappearance of their relative and\/or the discovery of the remains : in PERSON and Others , no . ORG , by letter dated DATE to the Minister of the ORG , in PERSON and Others , no . CARDINAL , by letter dated DATE to the Minister of the Interior and in GPE and Others , no . CARDINAL , by letters dated DATE , to the Attorney - General and to the Minister of the ORG . No reply or information was received , save for an e - mail from the Attorney - General \u2019s office dated DATE in the FAC case , stating that all necessary action would be taken .","In this case , the claimants challenged the decision in DATE to remove their relative , a NORP - Cypriot combatant last seen in DATE , from the list of missing persons after examination of the list by the Attorney - General of GPE ; his file was communicated to the PERSON side instead on the basis that he had died of wounds during the fighting and not to ORG . In a decision dated DATE , ORG in its appellate jurisdiction rejected the case on the basis that the case did not concern an administrative decision but was an act of government outside the court \u2019s jurisdiction . Matters relating to missing persons were part of the GPE problem and fell within the power of the political authority .","NORP In these cases lodged in DATE , the relatives of CARDINAL NORP men who went missing on DATE after they had been taken from their homes by armed NORP Cypriots , lodged applications under LAW , claiming that GPE had known of the deaths of the missing persons but had not searched for the corpses or brought the guilty persons to justice and that the Republic had not taken the necessary actions to pursue an effective investigation to determine the whereabouts and fate of the missing persons . In their response , GPE stated that they had not been passive but had been unable to pursue their intentions to exhume and identify corpses due to the agreement between ORG , the NORP - NORP side and themselves that exhumations would be conducted by a common programme of ORG . They also pointed out that exhumations had begun in DATE and the programme indicated the likelihood of the exhumation of the graves in the relevant area would commence in DATE . They disputed that the matter fell within the jurisdiction of the courts but fell rather under the supervision of ORG and the authority and initiative of the President of the Republic .","In its decision dated CARDINAL DATE , ORG in its appellate capacity held that the fate of missing persons fell under the authority of the President of the Republic as it had an international aspect ; the cases therefore concerned an act of government which did not fall within the jurisdiction to annul of ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69469","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2005,"docname":"CASE OF ZAWADKA v. POLAND","importance":3,"conclusion":"Violation of Art. 8;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE , GPE .","The applicant and ORG had a relationship and were living together for an unspecified period . In DATE PERSON gave birth to the applicant 's son , P. In DATE during the applicant 's stay abroad , PERSON 's mother , ORG , moved out from their house and took P. with her , apparently as a result of growing tensions and disagreements in the couple . Afterwards she refused to allow the applicant to have contact with ORG , on an unspecified date , the applicant took P back to his place , without ORG 's agreement .","On an unspecified later date PERSON filed with ORG ( s\u0105d rejonowy ) a request for limitation of the applicant 's parental responsibility for P.","On DATE the court issued an interim order to place P. with his mother . It relied on P. 's age , on the fact that O. breast - fed P. and , also , on the fact that he was suffering from allergy . On the following day a court - appointed guardian assisted by a police officer arrived at the applicant 's place and after a TIME skirmish took PERSON away .","On DATE the applicant and ORG concluded a friendly settlement as to the access arrangements . They agreed that ORG 's place of residence would be with his mother . The applicant had a right to take P. to his place at specified dates and times in DATE . Starting from DATE he was supposed to spend DATE with his son at his home . As to the exact dates of meetings in DATE the parties agreed to determine them at DATE .","At DATE O. refused to hand over her son to the applicant , maintaining that P. was ill at that time .","NORP In DATE the applicant requested that a court guardian assist him in meetings with PERSON , submitting that ORG failed to comply with the settlement they had concluded in DATE .","On an unspecified date the applicant petitioned ORG to fine O. for obstructing his contacts with P. as established in the settlement of DATE . He also requested the prosecution authorities to institute criminal proceedings against O.","On an unspecified date at the requests of the applicant and NORP proceedings concerning parental responsibility were instituted .","On DATE ORG stayed the proceedings concerning the applicant 's petition , considering that only after the completion of the parental - responsibility proceedings would it be possible to examine them . The court observed that the parties to the court settlement of DATE had not specified the dates of the applicant 's meetings with P. and that therefore the settlement was impossible to enforce . It was therefore impossible to examine the applicant 's petition to have a fine imposed on O.","On DATE the applicant went to O. and , after an altercation , took his son away . Subsequently , O. informed prosecution authorities that the applicant had kidnapped P. and threatened her .","On DATE the applicant sent letters to ORG and the prosecution authorities informing them that he had taken over the custody of P. and would continue to exercise his parental rights until the completion of the parental - responsibility proceedings pending before ORG . He declared that O. would be able to meet her son at the applicant 's home .","On DATE ORG , at ORG 's request , ordered the applicant to hand over P. to NORP within DATE . Initially , he declared his willingness to do so , but , subsequently , went into hiding together with his son .","On DATE ORG ( prokurator rejonowy ) discontinued the proceedings initiated at the applicant 's request , considering that O. had not committed the criminal offence of obstructing his contacts with P. It was established that O. had ceased to comply with the terms of the DATE settlement at DATE , relying on the fact that P. had been sick at that time . She also objected to the applicant taking P. to his home as he lived far away from ORG 's residence . The applicant 's appeal against that decision was dismissed by ORG ( prokurator wojew\u00f3dzki ) .","On DATE the prosecutor discontinued the investigations instituted at ORG 's request . He considered that the applicant had not committed a criminal offence . It had been established that since DATE O. had not allowed the applicant to take his son to his home , despite the fact that P. had got better . The applicant had only been allowed brief visits at her home to see P. The applicant had informed the police and requested to be given assistance , but his efforts failed to affect the mother 's conduct . It was further pointed out that after taking away P. from his mother the applicant had informed the prosecution authorities in GPE and NORP about the incident . In the light of the fact that the applicant had full parental rights in respect of P. the prosecutor did not consider his acts a criminal offence . O. 's allegations about having been threatened by the applicant proved unsubstantiated .","On DATE and DATE ORG ordered the applicant to reveal PERSON 's place of residence and warned him that in case of failure to comply with its order he would be fined , with imprisonment in default . He did not comply with these orders .","On DATE ORG issued an enforcement order in respect of ORG decision of DATE . It ordered a bailiff to take P. from the applicant by force and hand him over to O.","On DATE in the course of the parental - responsibility proceedings the ORG limited the applicant 's parental rights to a right to information about his child 's health . It amended the settlement of DATE in that it decided that further contacts between the applicant and his son should take place on DATE at the mother 's home from TIME without the possibility to take P. anywhere .","The court referred to the DATE settlement between the parties , to the subsequent difficulties in the applicant 's access to P. and to the fact that on DATE he had taken PERSON to his place . The court considered that although there was nothing in the case - file to suggest that the applicant 's parenting skills were insufficient and it was difficult to establish to which of the parents PERSON was more attached , the applicant 's conduct in the course of the proceedings proved his disrespect to the organs of justice and disregard of the interest of the child .","The court dismissed ORG 's request to divest the applicant of parental rights , considering that at that stage it was too early to adopt such a serious measure .","The applicant and ORG appealed against that decision .","On DATE ORG ( s\u0105d wojew\u00f3dzki ) dismissed the applicant 's appeal against the enforcement order of CARDINAL DATE .","On DATE ORG amended ORG decision of CARDINAL DATE in that it deprived the applicant of all parental rights in respect of P. It considered that he had abused his rights by making it impossible for the son to contact his mother , whereas the mother 's care at that stage of the child 's development was indispensable . The court further found that the applicant 's continuing hiding was to the child 's detriment , especially because he was apparently working and his son was taken care of by other people . It emphasised that the child had the right to decent life conditions , home and stability , of which the applicant had deprived him . The court further pointed out that the difficulties in enforcing court orders in the past could not justify the applicant 's conduct and he should have availed himself of legal remedies .","On DATE the police took P. away from the applicant .","On CARDINAL DATE the applicant requested ORG to prevent the issue of a passport for P. , submitting that O. intended to abduct P. abroad . In reply , he was informed that until DATE when the judgment of DATE obtained legal force the passport would not be issued without the applicant 's approval .","On DATE and DATE the applicant informed ORG about instances of obstructing his contact with P. by O. and requested assistance in the enforcement of his access rights .","On DATE ORG dismissed the applicant 's request for the appointment of a legal - aid lawyer for the purpose of lodging a cassation appeal and exemption from courts costs . The court found that he ran a business and in DATE his income had reached MONEY ( ORG ) , whereas he would have to pay only a ORG CARDINAL fee for his cassation appeal and the legal fees in a case like his would not exceed LAW . The court further noted that the applicant was single and owned a plot of land with a building under construction , as well as a car . On DATE ORG rejected the applicant 's cassation appeal against that decision , as it was not provided for by law . On DATE ORG rejected his appeal against the latter decision .","On DATE , in reply to the applicant 's complaint , ORG requested ORG to submit information and documents concerning the applicant 's case , as it had certain doubts as to the decision to restrict his parental responsibility for P.","On DATE the Head of ORG at ORG informed the applicant that none of the court guardians had agreed to assist in the arrangements for his contact with P.","On DATE the ORG 's office requested ORG to indicate the policemen who on DATE had taken PERSON away from his father , as well as the person who had ordered it , in breach of the provisions of LAW . The applicant submits that no further measures were taken by the ORG .","On DATE ORG dismissed the applicant 's and ORG 's petitions concerning his contact with his son . The court relied on the opinion prepared by CARDINAL experts , according to which the relations between the child and parents were disturbed , and because of the child 's age it was recommended that the meetings with the father would take place at the mother 's home . The experts noted that P. would not want to leave his father . They pointed out that the need to maintain PERSON 's contacts with his father existed , but that the parents did not show understanding for the needs of the child and were driven by the wish to harm each other .","On DATE the applicant filed with ORG a petition in which he requested that O. be deprived of her parental rights and he be granted parental responsibility . Subsequently , he asked the court to issue an interim order to the effect that PERSON 's place of residence would be with the father .","NORP In DATE the applicant filed an unsuccessful request for the reopening of the proceedings terminated on DATE .","On DATE ORG refused the applicant 's request for the enforcement of the part of the judgment given on DATE concerning his contacts with his son . The court considered that the place of residence of ORG and the son was unknown and therefore enforcement was impossible .","On DATE ORG dismissed the applicant 's petition to deprive O. of parental responsibility for P. It noted that the applicant 's submissions as to the allegedly improper manner in which the mother looked after P. were unsubstantiated . On the contrary , the experts were of the opinion that there were strong emotional bonds between her and P. The applicant appealed .","In her letter of CARDINAL DATE , written in reply to the applicant 's complaint , the President of ORG of Appeal agreed with his contention that the proceedings were lengthy .","On DATE the police authorities informed the applicant that O. with his son had left for GPE on DATE .","On DATE ORG quashed ORG decision of DATE . On DATE ORG , following ORG instructions , stayed the enforcement of the orders concerning contact between the applicant and his son because the applicant was unable to indicate ORG 's place of residence .","On DATE ORG dismissed the applicant 's appeal against the decision of ORG .","The proceedings are stayed .","The Family and Custody Code ( PERSON i PERSON ) provides :","\u201c In a decision on divorce , the court is competent to issue orders concerning the manner in which the care of the parties ' minor children should be carried out ( ... ) . The court may grant custody right to CARDINAL parent and limit the custody rights of the other CARDINAL . \u201d","The Code of Civil Procedure ( Kodeks Post\u0119powania Cywilnego ) provides :","\u201c The custody court can change its decision if the best interest of person whom it concerns so require . \u201c","According to ORG resolution , if a parent who has been obliged by a court decision to respect the other parents ' access rights refuses to comply therewith , access decisions are liable to enforcement proceedings . The provisions of LAW on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL\/CARDINAL , OSNCP CARDINAL DATE ) .","\u201c CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on a motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of fine ( ... ) .","If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by a court . \u201d","If the court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75223","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"CELIK AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants whose names appear in the appendix are NORP nationals . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","Until DATE the applicants all lived in GPE , in the district of Lice in GPE , where they own property .","In DATE security forces forcibly evacuated GPE on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to ORG where they currently live .","On DATE the mayor filed a petition with the office of the ORG Governor and asked the latter either to allow the residents to return to their village or to provide them with alternative residences .","On DATE the mayor filed a petition with the office of the FAC Governor and asked the latter to provide financial aid and alternative residence for the residents .","On DATE the mayor filed a petition , on behalf of the residents , with the office of the Prime Minister requesting permission to return to their village .","On DATE the office of the Prime Minister sent the following reply to him :","\u201c Your petition containing a request of permission to return to your village has been transmitted to the Governor \u2019s office in ORG for examination . \u201d","On DATE the mayor filed a petition with the office of the ORG Governor and asked the latter to provide any type of aid for the residents .","On DATE the mayor filed a petition with the offices of the ORG Governor of the state - of - emergency region , the ORG Governor and the Deputy Prime Minister and asked the latter to provide any type of aid for the residents .","On an unspecified date , the mayor filed a petition , on behalf of the residents , with the office of the ORG Governor and requested financial aid and compensation for the damages they had suffered .","On DATE the office of the ORG Governor of the state - of - emergency region sent the following reply to him :","\u201c ... The office of the ORG Governor of the state - of - emergency region had constructed CARDINAL houses in GPE and they were allocated to the citizens by lots .","Your requests will be taken in to consideration if such a construction project were to be implemented in the future . \u201d","On DATE the mayor filed a petition , on behalf of the residents , with the office of the ORG Governor requesting permission to return to their village and financial aid .","On DATE CARDINAL of the applicants lodged petitions with ORG office in ORG complaining about the burning down of their houses by security forces . However , ORG did not commence an investigation into the ORG allegations .","On DATE CARDINAL of the applicants , PERSON , filed a petition with the office of the FAC Governor requesting permission to return to his village .","On DATE the Lice District Governor sent the following reply to the applicant :","\u201c ... LOC has been abandoned for a long time . Therefore , there are deficiencies in the infrastructure of the village . Consequently , if you return to your village , you will experience serious difficulties as regards the roads , water , electricity , telephone , etc .","... \u201d","On DATE the Commander of ORG in ORG sent letters to the mayors of the villages in LOC and informed them that access to some villages of LOC would only be possible during DATE in DATE . The Commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend DATE in their village . It was noted that permission for access to village should be sought from local gendarmerie stations . GPE was not listed among the villages to which access would be allowed under the aforementioned conditions .","On DATE , the CARDINALnd ORG Commander in ORG sent a letter to the GPE office in ORG informing him that the military operations against terrorists would continue to be carried out in the district . The commander requested the GPE office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course the operations .","On DATE the office of ORG attached to ORG sent a letter to the mayor informing him that by reason of the military operations , which were to be conducted on CARDINAL , DATE and DATE , access to villages of ORG , ORG , ORG and PERSON would not be permitted until further notice .","On DATE the ORG representative , PERSON , filed a petition , on behalf of the applicants , with the office of ORG attached to ORG requesting pecuniary and non - pecuniary compensation for the damage they had suffered .","On an unspecified date , Mr M.Vefa brought an action , on behalf of fortythree applicants , with ORG requesting pecuniary and non - pecuniary compensation for the damage the applicants had suffered .","On DATE ORG dismissed the action on the basis of LAW . CARDINAL .","On DATE the representative appealed against the decision of ORG .","On DATE the office of ORG sent the following reply to the ORG :","\u201c ... No military operations were conducted during DATE in ORG .","...","In order to receive compensation , a copy of the civil or administrative courts\u2019 judgments on the payment of compensation should also be submitted . Furthermore , if you did not file a petition with a court , for compensation within the statutory time limit , prescribed by LAW . CARDINAL , your future petitions would be rejected .","... \u201d","The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .","The official records indicated that 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22273","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2002,"docname":"HEMAT KAR v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is an NORP passport - holder but he also claim to be an NORP citizen . He is presently detained in GPE for deportation to GPE . He was represented before the Court by Ms Nyblom , a lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant came to GPE on DATE and DATE he lodged an asylum application in the name of PERSON . He claimed that he was an NORP citizen and that he had no passport or other travel documents . The only identification document he was able to produce was an NORP military book .","In the initial inquiry the applicant stated that he was born in GPE , GPE , but before travelling to GPE he had lived in GPE . He had left GPE when the intelligence service was looking for him . He had been accused of collaboration with the Daawa party and imprisoned in GPE in DATE . He had fled from GPE because he did not feel safe due to the unstable political situation . He further stated that he did not know where his wife and children were .","On DATE ORG in GPE informed ORG that some visitors had submitted CARDINAL pages of the applicant \u2019s NORP passport and had stated that the applicant had been an NORP national for DATE and that his family lived in GPE . When confronted with this information on DATE the applicant gave other reasons for his request for a residence permit .","At the outset he answered that he had visited GPE and that if his wife was there she must have moved there recently . He further stated that in addition to NORP citizenship he also held NORP citizenship because his father had been an NORP national . The applicant claimed that he had lived in GPE his whole life and that he possessed an NORP passport , which would be sent to him . However , he never produced any such document to the NORP authorities .","The applicant subsequently maintained that he could not go to GPE . He also claimed that he had not been politically active or committed any crime in GPE . Then he alleged that he had lived in GPE until DATE when he moved to GPE with his wife and family . They lived in GPE until DATE when the war between GPE and GPE broke out . His wife and children arrived in GPE at DATE or DATE and they are still living there . The applicant , however , \u201c commuted \u201d between Chaklawa in GPE and GPE before he left for GPE . He finally stated that he could not return to GPE because he had committed adultery with his sister - in - law and his brothers - in - law had initiated legal proceedings against him on the grounds of adultery . He claimed that he had left GPE when he was summoned to the court because he feared that he would be sentenced to inhuman punishment . In this respect he asserted that the penalty for adultery in GPE was stoning to death .","On DATE ORG rejected his request for a residence permit and a working permit because of his lack of general credibility . At the same time ORG ordered his refusal of entry and that the applicant would be sent to GPE unless he showed that he would be received in another country . According to the applicant \u2019s own statements ORG drew attention to the fact that the applicant had departed from GPE airport holding a valid NORP passport and that he had not been politically active in GPE . He had thus been allowed to leave the country which indicated that he was not of special interest to the NORP authorities . Finally , ORG noted that NORP law placed exacting demands on the testimony of witnesses in order to convict a person of adultery . The applicant had , however , stated that there were no witnesses of the act . In ORG opinion , the applicant \u2019s assertion only to the effect that he had committed adultery was not a sufficient ground for granting him residence permit . It found no reasons to trust his assertion that he would be persecuted if returned to GPE .","The applicant appealed to ORG ( hereinafter \u201c the ORG \u201d ) . In his appeal he stated that the reason why he had first denied being an NORP national was his fear of being expelled to GPE as he had committed adultery in that country . The applicant further claimed that the QUANTITY brothers of the woman in question had reported him and had also declared themselves as witnesses . In support of his claims he invoked a document in LANGUAGE , which he alleged was a summons to appear before a court on DATE . He further submitted CARDINAL warrants for his arrest dated DATE , which he alleged that he had received from a friend in GPE who had visited the applicant \u2019s closest neighbour in GPE . He finally asserted that a friend would send a judgment to him .","In observations dated DATE the applicant claimed that there had been a misunderstanding regarding the above - mentioned judgment . The document he had now received from his friend , who had bribed an official at the police , was a court request to apprehend him immediately and make him answer to the charges of adultery . CARDINAL named persons had reported him for the crime and declared themselves as witnesses . According to the applicant the document proved that a judgment concerning adultery would be rendered .","ORG had the above mentioned documents translated into NORP and the translations were sent to the applicant on DATE .","On DATE the applicant submitted , inter alia , that it was clear that he was wanted by the police in GPE for adultery , that he was accused of immoral behaviour and an improper relationship with his sister - in - law and that it appeared from CARDINAL of the documents that a judgment existed . The sentence for adultery was , claimed the applicant , stoning to death .","By decision of DATE ORG rejected his appeal . ORG shared the opinion of ORG that the applicant had given contradictory information and found that the explanations provided for this were unconvincing . It also noted that NORP law placed very exacting demands on testimony of witnesses in order to convict a person of adultery .","As regards the documents , which according to the applicant proved that he was summoned to court and would be apprehended and arrested for adultery , ORG observed the following . The applicant had stated that the summons had been delivered to his neighbours and that a friend of his received it from them . Moreover , he had affirmed that a court had rendered a judgment and that it would be sent to him . Later the applicant had indicated that this was a misunderstanding and that the document he had received was a request from the court to apprehend him and that he had obtained the document from a friend who had bribed the police . He had then claimed that a judgment existed because it was stated in one of the documents that \u201c in order to enforce this judgment according to NORP criminal laws the accused is to be transported urgently to this court house \u201d . ORG also found that the applicant had submitted contradictory information regarding the documents and that he had not given an acceptable explanation for this . It appeared from the translation that CARDINAL of the documents , named \u201c Warrant of arrest \u201d and dated DATE , was issued by ORG and addressed to the Commander of the police within ORG . It was further observed in the warrant : \u201c in accordance with a report made by the plaintiffs , Mr PERSON and Mr PERSON , against PERSON , accused of immoral behaviour and an improper relationship with his sister - in - law , who are both married and have children . The court finds this proved . \u201d Another document , ORG noted , also named \u201c Warrant of arrest \u201d and issued on DATE , was signed by the interrogator \/ assisting prosecutor at the office of the public prosecutor . ORG found it remarkable that the applicant had been able to get access to these documents as they seemed to be part of a correspondence between authorities . It further questioned the wording and the contents of the documents and especially noted that in CARDINAL of the documents , the summons application , the office of the public prosecutor was mentioned , an office that was abolished in GPE in connection with a reform of the court system in DATE . For these reasons ORG gave no credence to the documents in question .","In DATE , in the course of the proceedings before the ORG , the applicant submitted to it CARDINAL additional documents . The first was a letter from ORG ( in exile ) , according to which an investigation conducted by the association showed that proceedings eventually had been initiated against the applicant on account of adultery , but that no judgment had been delivered . The other document submitted by the applicant was an e - mail from a NORP law professor of NORP origin , stating that he had no reason to put in question the authenticity of the arrest warrants , noting that they were issued by an investigating judge carrying out tasks previously done by public prosecutors . However , he could not express any view on the possibility of getting access to such documents . He also assumed that the assessment of ORG had been based on a non - professional translation of these documents .","Following the ORG \u2019s indication under LAW , ORG decided on DATE to stay the enforcement of its decision of CARDINAL DATE refusing the applicant entry into GPE and ordering his expulsion to GPE .","The CARDINAL documents ( the alleged summons application and the CARDINAL warrants of arrest ) the applicant has invoked in support of his claim have been examined by legal experts at the request of ORG in GPE . They concluded that the documents were not authentic and that the alleged case regarding adultery does not exist . An inquiry to the NORP court designated in CARDINAL of the documents revealed that the case in question concerned cheque fraud and not immoral behaviour or adultery . According to the ORG , the kind of court mentioned did not even handle cases of adultery ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76323","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF TEREKHOVA v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lived in GPE .","On DATE the ORG of the Voronezh Region granted the applicant \u2019s claim against ORG and awarded her MONEY ( RUR ) for pension arrears .","The judgment was not appealed against and entered into force . On DATE a writ of execution was issued .","The judgment was executed on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59126","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2001,"docname":"CASE OF N.C. v. ITALY","importance":3,"conclusion":"No violation of Art. 5-5","judges":"Andr\u00e1s Baka","text":["The applicant was the technical director , technical and economic adviser and special representative and agent of company X.","On an unspecified date , preliminary investigations were opened against the applicant on suspicion of abuse of power and corruption committed in the course of his functions in DATE .","On DATE ORG attached to ORG requested that the applicant be either remanded in custody , or placed under house arrest , or prevented from exercising his functions as director of company X , on the ground that there was a serious indication of his guilt resulting from the statements of CARDINAL witnesses and from the result of an expert opinion carried out in the course of the preliminary investigations . The content of the statements and of the expert opinion had been corroborated by further documents . The applicant appeared to have commissioned Y , the head of urban planning of the Brindisi local authority , as chief engineer for the building of a road ( \u201c Strada dei Pittachi \" ) and as co - director of works for the construction of the new district detention centre at GPE . These appointments were alleged to be a \u201c payment \u201d from company X to Y for delivering false declarations in the approval procedure relating to the projects which company X had submitted for the road - works .","ORG further explained that , given that the applicant maintained his functions in company X , there was a risk that he would commit further similar offences .","On DATE the Judge for Preliminary Investigations of Brindisi issued a warrant of arrest against the applicant on the ground that the indications of guilt which existed against him , as indicated in ORG request of DATE , were serious .","As regards the grounds for precautionary measures , the judge recalled that , as indicated by ORG in his above request , the applicant had maintained his position as ORG of company X. The judge considered inter alia that , in order to decide what precautionary measure was more suitable in that case , he had to take into account the nature of the conduct under examination . The worst aspects of the applicant \u2019s conduct were the failure to observe the rules of the administrative procedure and the waste of public funds , coupled with the breach of the rules on public tendering . This conduct had resulted in a project which showed no respect for the environment , which was very serious , given that \u201c the chaotic and unliveable character of NORP cities is not caused solely by the spreading of common crime but primarily stems from the urban growth pattern ( general lack of any effective regulation and resultant lack of adequate public areas for parking , gardens and relief roads ; this unease is tangibly felt in all parts of GPE ) . Abuses relating to management and spending of public funds like those committed in FAC project must be considered just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of MONEY at gunpoint or with the help of accomplices , as often happens in GPE . Given the legislator 's intention to counter the risk to society in such cases by the most stringent precautionary measure , i.e. detention in prison , this is even more justified in the far more serious case under investigation and is to be considered appropriate and necessary albeit not peremptorily stipulated by LAW paragraph of LAW ( \u201c ORG \u201d ) among the circumstances where detention is mandatory . Otherwise the difference in treatment would be unjustifiable , and therefore unjust \u201d . The judge concluded that he was thus firmly convinced that in cases like the CARDINAL under consideration , \u201c where each act ( a ) is aimed at the pursuit of reprehensible private interests and ( b ) is committed by persons who do or should bear a high reputation because of the powers and\/or responsibilities which they exercise , the measure of prison detention must be applied ( not the measure of house arrest which is very convenient - especially for someone like the accused who is used to living indoors - but not sufficiently deterrent ) . \u201d","The applicant was arrested on DATE .","On DATE he filed with ORG an application for release from detention or , failing that , house arrest , arguing that there was no \u201c serious indication of guilt \u201d within the meaning of Article CARDINAL of the Code of Criminal Procedure , and that there were no grounds whatsoever for precautionary measures .","CARDINAL","Finally , the applicant inter alia drew the court \u2019s attention to the established case - law to the effect that , when a precautionary measure is considered a significant period of time after the committal of the offence , account must be taken of the accused \u2019s conduct after the committal of the offence . Insofar as he was concerned , in DATE that had elapsed after the offence of which he was accused , he had not been accused or charged with any similar or different offence .","Following a hearing on DATE , the court in a decision of CARDINAL DATE held that there undoubtedly existed a \u201c serious indication of guilt \u201d against the applicant . It further held that \u201c there undoubtedly was a danger of his committing further crimes within the meaning of LAW ORG considering how the accused succeeded in unlawfully attaining the economic ends identified \u201d . It thus rejected his application for release . However , given that the applicant had a clean record , the court upheld his subsidiary request and placed him under house arrest .","On DATE the applicant appealed on points of law against the refusal to release him , on the ground that his detention on remand was in breach of Articles CARDINAL and CARDINAL ( c ) ORG .. He stressed in particular that ORG had not given any reasons for the application of precautionary measures within the meaning of LAW ( c ) ORG","On DATE the applicant filed a request with the Brindisi Judge for ORG to revoke the order for his being kept under house arrest , as he had resigned from his office of technical director of company X.","This application was rejected by the Judge for Preliminary Investigations on DATE on the grounds of the short period of time elapsed since the application of the measure , which moreover had been changed into a more lenient one , and of the seriousness of the accusation . The judge explained that the applicant could have the possibility of using his experience and professional skills either on his own account or in the employment of another company .","On DATE , the applicant appealed to ORG against this decision . He underlined that the previous decisions had been based on the need for prevention of crime , and in particular on the circumstance that the applicant had maintained his position in company X. Accordingly , now that he had resigned , such need did not exist any more .","In a decision of DATE the court pointed out that all previous decisions on the applicant \u2019s detention were based on LAW ) . It held that , given that the applicant had resigned and in the light of the time already elapsed since the application of the measure and of the personality of the accused , there were no longer any grounds for his detention on remand . It accordingly ordered his immediate release .","On DATE the applicant withdrew his appeal on points of law of DATE , which was acknowledged on DATE .","By a judgment of DATE , ORG acquitted the applicant on the ground that the facts had not occurred ( \u201c perch\u00e9 il fatto non sussiste \u201d ) . This judgment became final on DATE .","Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( \u201c ORG \u201d ) set out the conditions for precautionary measures ( misure cautelari ) , namely the existence of serious evidence of guilt ( \u201c gravi indizi di colpevolezza \u201d ) in respect of a crime punishable with life imprisonment or detention for DATE .","Article CARDINAL ORG provides in addition that precautionary measures can be ordered for the following reasons : prevention of interference with the course of justice ( LAW ( a ) ) , danger of flight ( CARDINAL ( b ) ) and prevention of crime ( CARDINAL ( c ) ) .","Article CARDINAL ( c ) reads as follows : ( precautionary measures are ordered ) \u201c where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused \u201d .","Detention pending trial ordered or maintained in breach of LAW does not give rise to a right to compensation under Articles CARDINAL and CARDINAL ORG ..","Under LAW ORG , detention pending trial can only be ordered if all other precautionary measures appear to be inadequate . Where there is serious evidence that the offence of being a member of a mafia - type organisation has been committed , there is a rebuttable presumption that the necessity for detention pending trial exists .","Article CARDINAL ORG provides inter alia that the detention order must contain the explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt , including the factual elements on which the evidence is based and the grounds for its pertinence , and must take into account also the time elapsed since the committal of the offence .","Article CARDINAL \u00a7 CARDINAL ORG provides that anyone who has been acquitted in a judgment that has become final DATE on the grounds that the case against him has not been proved , he has not committed the offence , no criminal offence has been committed or the facts alleged do not amount to an offence at law \u2013 is entitled to equitable reparation for any period he has spent in detention pending trial , provided that misrepresentations or fault on his part were not contributory factors in his being detained .","Under LAW , a person whose detention pending trial has been found , in a final decision , to have been ordered or maintained in breach of ORG CARDINAL and CARDINAL ORG , is entitled to compensation . An application for reparation under LAW must be made within DATE after the judgment becomes final . The maximum award is MONEY ( Article CARDINAL ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-5"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90941","languageisocode":"ENG","respondent":"GEO","branch":"CHAMBER","date":2009,"docname":"CASE OF RAMISHVILI AND KOKHREIDZE v. GEORGIA","importance":3,"conclusion":"Violations of Art. 3 (substantive aspect);Violation of Art. 5-1-c;No violation of Art. 5-4;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The first and second applicants were born in DATE and DATE respectively and live in GPE .","The applicants were co - founders of and shareholders in a private media company ( \u201c the media company \u201d ) which owned the television channel \u201c TV CARDINAL \u201d ( \u201c the channel \u201d ) , broadcasting in GPE . The first applicant , as an anchorman of the popular talk show \u201c FAC ( Debates ) , often addressed politically sensitive issues .","Under a service agreement of DATE , the media company undertook to air several documentary films made by \u201c ORG Reporter \u201d , a private film - production company ( \u201c the production company \u201d ) . Consequently , in DATE , the latter started working on a documentary concerning certain business activities of PERSON , a parliamentarian from the presidential political party ( \u201c the ruling party \u201d ) , which held at that time the majority of seats in ORG . The object of the documentary was to expose PERSON allegedly illegal commercial activities . According to the Government , except for the applicants , nobody within the media company knew about the making of the compromising film .","After PERSON had tried in vain to persuade the journalists of the production company to drop the project , he contacted the first applicant . From DATE the parliamentarian placed numerous telephone calls , asking PERSON to block the film . Eventually , they agreed to meet and discuss the issue .","During their first meeting , which took place in TIME of CARDINAL DATE , an agreement was reached whereby the first applicant would not allow the airing of the film on his channel in exchange for MONEY ( EUR CARDINAL,CARDINAL ) . Immediately after this meeting , Mr B. complained to the Minister of the ORG that the first applicant had been blackmailing him . He reported to the authorities that , in the event of the compromising film being aired , it could have disastrous consequences not only for him personally but also for the image of the ruling party .","DATE , ORG initiated criminal proceedings on suspicion of extortion for the purpose of gaining vast profits . DATE , PERSON met the first applicant again . They agreed that the latter would accept the sum in CARDINAL instalments : ORG CARDINAL,CARDINAL and CARDINAL ( ORG CARDINAL and CARDINAL ) .","In TIME CARDINAL DATE , PERSON informed the prosecution service that he would hand over the first instalment to the first applicant TIME . The MONEY notes were consequently processed with invisible chemicals and marked with a special pencil , while their serial numbers were recorded by the investigation authorities . ORG ( \u201c the ORG \u201d ) issued a ruling , dated DATE , at TIME , authorising the secret videoing of the meeting without a court order , due to \u201c urgent necessity \u201d . The camera was hidden on the parliamentarian \u2019s person .","The meeting during which PERSON handed over the money to the first applicant took place on DATE at TIME , in the apartment of a mutual friend of theirs . It was also attended by the second applicant . The conversation and the handing over of the money were videoed secretly ( \u201c the video recording of CARDINAL DATE \u201d ) by the parliamentarian . When the applicants left the meeting and got into the second applicant \u2019s car , they were arrested and searched . ORG and the car in which the money was found were seized . On DATE the ORG legalised the secret video recording .","On DATE Mr B. was recognised by the investigation as a victim and both applicants were charged with conspiracy to commit extortion . They pleaded \u201c not guilty \u201d and refused to testify at that time .","On DATE the ORG granted the prosecutor \u2019s motions and remanded the applicants in custody for DATE . The order noted that the collected evidence \u2013 the parliamentarian \u2019s statements , the results of the on - the - spot search of the applicants , the seized materials and the video recording of CARDINAL DATE substantiated the suspicion that the applicants had committed the offence with which they had been charged . The court dismissed the prosecutor \u2019s argument that the applicants might abscond in view of the gravity of the charge as unsubstantiated . However , it endorsed the fear that they could interfere with the establishment of the truth by exerting pressure on those witnesses who were under their hierarchical authority in the media company .","On DATE the applicants appealed against this decision , complaining that their detention was not lawful within the meaning of LAW , since the prosecution had failed to prove the reasonableness of the imposition of such a measure . They complained in particular that , apart from the parliamentarian \u2019s statements , the prosecution had not submitted any other evidence substantiating the suspicion that a crime had been committed . Further , they alleged that , contrary to LAW , they had been detained not for the purpose of bringing them before the competent legal authority but in order to silence their television channel .","On DATE the investigator issued a ruling , incorporating as evidence into the criminal case file the seized GPE dollar notes , the second applicant \u2019s car and the traces of chemicals found there , as well as the applicants\u2019 fingerprints and some other results of their search and arrest on DATE .","On DATE the NORP ORG dismissed the ORG appeal at an oral hearing . The case file contained photographs of that hearing showing that the applicants had been kept in a barred dock , surrounded by several guards . The photographs further showed that the court room was extremely overcrowded ( for a detailed description of the hearing , see paragraphs CARDINAL below ) .","NORP The decision of DATE endorsed the reasoning of the lower court concerning the ORG managerial positions in the media company as a ground supporting the risk that they might influence the witnesses . It reiterated that the collected evidence DATE the parliamentarian \u2019s statements , the results of the on - the - spot search of the applicants , etc . \u2013 suggested \u201c with a high degree of probability \u201d that the applicants had committed the crime .","On DATE the investigator incorporated the video recording of CARDINAL DATE and its verbatim transcript as evidence into the criminal case file . On DATE the investigator presented the transcript to the applicants . Calling its authenticity into question , the applicants requested leave to watch the recording .","On DATE the investigator informed the applicants in writing that the preliminary investigation had been terminated . On DATE the case materials were presented to the applicants in prison . However , because at that time no appropriate equipment had been provided , it was only on DATE and DATE that the applicants , in the presence of their advocates , watched the video recording of CARDINAL DATE for the first time .","On DATE the prosecutor sent the criminal case , along with the bill of indictment of DATE , to ORG for trial .","On DATE the DATE pre - trial detention period expired without the court ordering its extension .","On DATE the applicants filed a complaint with ORG , demanding their immediate release . They claimed that they had been deprived of their liberty in breach of LAW ( \u201c the ORG \u201d ) and LAW , since no judicial decision had authorised their detention since DATE . No immediate response from the court was forthcoming .","On DATE the administration of GPE No . FAC , where the first applicant was provisionally detained , transferred the latter from his ordinary cell to the punishment cell ( karceri ) , which measured QUANTITY and was intended for solitary confinement , as a disciplinary punishment for using a mobile telephone , the latter incident occurring for the first time . According to the first applicant , in NORP times , this type of cell was used for the confinement of those on death row . There was another person sharing the cell with the applicant ( \u201c the second inmate \u201c ) .","On DATE , the applicants were taken to the admissibility hearing before ORG . ORG decided to commit the applicants for trial under LAW ORG . In addition , it rejected their motion of DATE to be released or to have their detention pending trial replaced by a more lenient measure of restraint , ruling in the following terms :","\u201c The defence incorrectly alleges a violation of the Convention as regards the fact that , after the DATE detention period expired , [ the applicants ] were not immediately brought before a court . [ In fact ] the criminal procedural law does not require that , once the case is referred to the court for a hearing on the merits , any procedural decision be taken on the measure of restraint applied to the accused . According to the ORG , the [ national ] court ought to decide on a case within a reasonable period of time . \u2018 Reasonable period of time\u2019 is defined by Article CARDINAL(CARDINAL ) CARDINAL of the ORG as follows . \u2018 In the course of the hearing of a criminal case by a ORG , the period of detention must not exceed DATE from the date on which the case is sent to the court.\u2019 Consequently , the [ applicants\u2019 ] detention pending trial has not exceeded its legal term . \u201d","In the operative part of the decision of DATE , it was noted that there was no appeal possible .","The case file contained photographs showing that the applicants had been kept in a barred dock during the hearing of DATE and that there had been security guards armed with machine guns and wearing hoodlike black masks in the court room .","On DATE at TIME , some toxic smoke ( later explained by the authorities to have been caused by the burning of a mattress in the adjacent cell , see paragraphs CARDINAL and CARDINAL below ) leaked into the first applicant \u2019s punishment cell . Owing to the lack of ventilation , the smoke filled the cell quickly , causing the applicant and the second inmate to suffer from smoke inhalation , an inability to breathe and eye watering . According to the first applicant , they shouted and knocked on the door for TIME before the prison guard opened the door and let both inmates out until the smoke was gone .","On DATE the first applicant was returned from the punishment cell to his ordinary cell .","On DATE the second applicant , also provisionally detained in GPE No . FAC , was moved from his CARDINAL - bed cell , with CARDINAL inmates in it , to another cell with QUANTITY beds , where QUANTITY prisoners were kept . The inmates were obliged to take turns to sleep .","On DATE the first applicant filed a complaint with both the ORG and ORG ( \u201c the MJ \u201d ) , the authority in charge of the penitentiary system , challenging the conditions in the punishment cell and the lawfulness of his confinement there . According to the complaint , the punishment cell had no window or ventilation and was extremely damp . Tap water ran non - stop and noisily TIME a day . A narrow pipe in the corner , located QUANTITY away from the bed , was designated as a toilet . It was so narrow that it was difficult for the inmates to pass urine and excrement straight into the hole ; there was no partition separating \u201c the toilet \u201d from the rest of the cell and a stench hung in the air all the time . CARDINAL inmate could not avoid seeing what the other was doing . The cell was infested with cockroaches and rats occasionally ran through it . The only bed , infested with vermin , was not wide enough to accommodate CARDINAL persons .","In such conditions , the first applicant claimed that he had not been able either to have any normal sleep or to eat properly . During the whole period of his confinement in the punishment cell , he was never let out for a walk or other physical exercise . He alleged that he was never visited by a doctor or provided with any other care .","From DATE hearings were held almost daily . In the hearing rooms , the applicants were always kept in the same conditions as those on DATE : being displayed to the public in the barred dock , in the presence of hooded guards with machineguns .","At a hearing on DATE , the second applicant announced that he had been continuously deprived of necessary medical care and of drinking water in prison . He declared that he intended to begin a hunger strike . The judge did not respond . Shortly afterwards , CARDINAL more inmates were placed in the second applicant \u2019s already overcrowded CARDINALbed cell , increasing the total number of prisoners there to CARDINAL .","On DATE the ORG informed the first applicant that it had taken note of his complaint of DATE . It also advised him that , according to ORG , the conditions in the punishment cell fully complied with \u201c international standards \u201d .","On DATE , after the prosecution had finalised its submissions before the court , the applicants requested , on the basis of LAW of the ORG , that their detention pending trial be replaced by a more lenient measure of restraint in view of newly discovered circumstances . In that connection the applicants referred to the fact that none of the witnesses questioned by the prosecution appeared to be under their hierarchical authority , but were rather co - founders of the media company . ORG dismissed that request on DATE . The judge acknowledged that this fact was indeed \u201c a newly - discovered circumstance ... \u201d , but ruled that it was \u201c not a significant new circumstance which could justify revision of the imposed restraint measure \u201d . The judge went on to say , \u201c This is especially true since the accused have not yet presented their submissions and have not been examined ; nor has the collected evidence been assessed ... \u201d","NORP The applicants then challenged the judge for bias , questioning her impartiality , but this challenge was dismissed as unsubstantiated by the same judge of ORG that DATE . An appeal against both decisions of DATE lay only in connection with an appeal against the final verdict .","On DATE the ORG , convicting them of conspiracy to commit extortion , sentenced the first applicant to CARDINAL and the second applicant to DATE in prison . On DATE the ORG upheld the verdict .","After conviction the applicants were transferred from GPE No . ORG to Rustavi No . ORG . They challenged the appellate decision of DATE in ORG . The case file did not contain information on any further developments in the criminal proceedings .","On DATE the ORG informed the first applicant that on DATE it had opened a criminal case with regard to his complaint of DATE concerning his confinement in the punishment cell but , after a preliminary investigation , had decided on DATE to close it as no elements of a crime had been disclosed .","The ORG decision of DATE noted that the first applicant \u2019s transfer to the punishment cell had been , under Rule CARDINAL \u00a7 CARDINAL ( b ) of ORG , a lawful disciplinary punishment for the use of a mobile telephone , such an act representing a grave violation of detention rules . Based on the statements of the administrative staff of GPE No . FAC , as well as the prison doctor and the second inmate , the decision stated that the first applicant had been visited by the doctor DATE and offered food identical to that provided in the ordinary cells . It noted however that , according to the first applicant \u2019s statements , he had refused to consume the food due to the unsanitary conditions in the punishment cell . As to the fire incident created by the inmate in the adjacent cell on DATE , the ORG , relying on witness testimonies , stated that the first applicant had immediately been taken out of his cell until the smoke was gone and that there had been no danger to his life .","The Government submitted TIME of the interview with the second inmate on CARDINAL DATE . The latter specifically mentioned that the food in the punishment cell had been of a satisfactory quality and that , in any case , he and the first applicant had had ample supplies because of their relatives\u2019 food parcels , which they had brought with them from their ordinary cells .","Relying on the examination of the punishment cell carried out by an investigative commission on DATE , the ORG \u2019s decision of CARDINAL DATE further stated that the cell had been equipped with an appropriate system of \u201c air filtration \u201d and inside artificial lighting , and that there had been a toilet , partitioned by a special wall from the rest of the cell .","According to TIME of the punishment cell inspection of DATE , submitted by the Government , it was conducted without the first applicant or his advocates\u2019 participation . They further disclosed that the punishment cell had been located in the basement of GPE No . CARDINAL prison , its length and width being QUANTITY by QUANTITY , and the bed had been QUANTITY wide . As to the toilet , it consisted of a hole in the ground and CARDINAL cemented bricks for placing the feet . There was no sink , and the water tap was set just above the toilet hole . The only source of lighting was an electric bulb . According to the minutes of the inspection and the attached plan of the cell , there was no window with access to daylight .","With due regard to the above findings , the ORG decided on CARDINAL DATE that the prison officials had not exceeded or abused their powers when transferring the first applicant to the punishment cell .","DATE . On DATE the first applicant filed a complaint against this decision , claiming that the investigation had not been effective or objective . He complained that , whilst he had filed his complaint on DATE , the ORG had opened proceedings DATE on DATE . This lapse of time , in his view , had been more than sufficient for the prison administration to renovate the cell completely with a view to hiding the appalling conditions in which he had been held . In this regard , he challenged the ORG \u2019s failure to enquire as to when exactly the ventilation , lighting and the toilet partition had been installed in the punishment cell . The first applicant further complained that the ORG had inexplicably disregarded his assertions that none of the above - mentioned conditions had existed during his confinement and had arbitrarily endorsed those of the prison staff who , being potential suspects in the case , could not be said to have been impartial witnesses . He challenged the fact that , despite his statement that he had never been provided with medical care , the ORG had trusted the statements of the prison doctor , another potential suspect , without having examined any other source of information ( i.e. the relevant prison logbook of medical visits ) . He further claimed that the second inmate , being under the complete control of the authorities who were wellknown for abuses in prisons , might easily have been threatened or forced to make false statements . Finally , the first applicant complained that he and his advocates had learnt about the initiation of the criminal proceedings against the prison administration only after they were terminated on DATE . Consequently , they had not been given a chance to participate in the investigation so as to ensure its objectivity .","On DATE the first applicant \u2019s complaint of DATE was dismissed by ORG . In reply to his complaint that the criminal proceedings had commenced DATE after his complaint of DATE had been lodged , the decision noted that \u201c the case materials do not support the suspicion that the cell has been renovated since the proceedings were opened on DATE . \u201d It further stated that the ORG had duly assessed the ORG statements , including those of the prison staff and the first applicant , and that nothing in the case file suggested that the second inmate might have been forced to testify against the first applicant .","The decision of DATE was adopted without an oral hearing and pronounced in absentia .","As part of their observations on the admissibility and merits of the application , the ORG submitted a video recording of the proceedings concerning the ORG appeal against their detention on remand held at ORG on DATE . The applicants replied that this recording did not include the scenes of greatest turmoil and had been considerably edited to portray a more favourable image of the hearing , excluding , for example , images of armed men inside the court room . They agreed however that this recording should be accepted and relied on as a source of information about the hearing . The applicants additionally provided annotations to some of the scenes .","The opening scenes of the ORG \u2019s recording showed an overcrowded court room before the start of the hearing . A large number of media personnel and cameras on tripods were situated in the middle of the room . The dock was a metal cage with a barred ceiling , located at the far end and separated from the rest of the court room . The audience was comprised of civilians , with a large number of women most of whom could be identified as the ORG supporters . However , there were CARDINAL men in plain clothes who were undercover police agents , according to the applicants . Moreover , many of those men were openly identified as agents by the ORG supporters on the spot . The supporters engaged in heated argument with several men in plain clothes , complaining about the lack of space and the ORG \u2019s inability to provide a larger court room for the hearing .","The CARDINAL uniformed guards and several men in plain clothes escorted the handcuffed applicants into the court room . When the judge was seated , the crowd was still pressing into the room . The entrance door was blocked by the plain - clothes men from inside , while several hooded and armed guards could be seen forcing the door closed from the outside . The judge requested the people in the room to calm down . The judge specifically reproached the media representatives for their disorderly behaviour .","The general noise level in the court room remained unabated even after the hearing was declared open . The judge offered the applicants the possibility of conducting the hearing in camera but they refused . Loud male voices could be heard in the court room bitterly arguing and uttering vulgar curses . The body language of the judge betrayed resignation and frustration , as he was unable to establish order .","When the advocates spoke they were dazzled by camera flashes and halogen camera lights of the journalists . During their speech there were continual interruptions by the judge and the public , and relentless banging on the entrance door from the outside , as well as the sound of construction works nearby . Now and then mobile telephones rang and persons conducted conversations . Communication between the defence , the prosecution and the judge , constantly hampered by the unsolicited interruptions of journalists , was made possible by repeatedly requesting other people to move aside or sit down on the floor . The temperature in the court room was high , judging by the sweat on people \u2019s faces . The persons presumed to be undercover agents , and some court personnel , could be seen constantly entering and leaving the judge \u2019s deliberation room .","In order to see what was happening , respond to the judge or be heard , the applicants had to stand on the chair in the barred dock , hanging on to the metal side bars , and shout . They repeatedly asked the judge and the prosecutors to speak louder as they could not hear them . When answering CARDINAL of the judge \u2019s questions , the first applicant , hanging on the bars and grimacing as if to emphasise by body language his resentment at the situation , made the following remark :","\u201c ... The Government might have something against me ... this I can [ more or less understand] ... but [ I can not ] understand why it is necessary to detain [ the second applicant ] ... [ unless , ] of course , the Government wish to fill up the prisons [ cixeebi]! ... [Well , ] I have been there [ in the prison ] ; unimaginable things happen there! ... There is no need for [ the second applicant] ... no place for him to be with me , here , in this cage ! [ galiaSi] ... This is my declaration ! \u201d","The immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them . The dialogue of questions and answers between judge and prosecutor was unaffected . Several persons alleged to be undercover agents in plain clothes were shown behind the prosecutor and investigator .","There were episodes when the prosecutor refused to reply to the second applicant\u2019 ridiculous question ... go and ask the parliamentarian about that ! \u201d , and the question was then dismissed by the judge .","In another episode , when the second applicant asked , \u201c Could you , please , indicate the page and the paragraph in the case materials which prove that the parliamentarian ... has testified against me ? \u201d , the prosecutor started laughing in reply and answered in a sarcastic tone , \u201c Which case materials ? ! Which page ? ! Which paragraph ? ! \u201d and then murmured \u201c This man is not sane ... \u201d The judge intervened and rephrased the question as follows , \u201c Do the parliamentarian \u2019s testimonies incriminate [ the second applicant ] ? \u201d The prosecutor \u2019s \u201c yes \u201d was endorsed by the judge as a reply to the question .","In some episodes , when the applicants or their advocates asked questions which perplexed the prosecutor , the judge either directly replied instead ( i.e. by locating the necessary pieces of evidence in the case file ) or rephrased the questions in a leading manner , thereby suggesting a suitable answer for the prosecutor . Thus , CARDINAL of the advocates asked the prosecutor why it was necessary to impose detention on remand for DATE , when there were CARDINAL witnesses who remained to be examined . As the prosecutor was unable to answer , the judge interrupted with , \u201c [ Because ] the criminal procedural legislation does not envisage the imposition of detention for a lesser term \u201d .","As the judge retired for deliberations , the public were ushered out of the court room by the guards and plain - clothes men . After the deliberations , the room contained many fewer people than before . The composition of the public had changed to an almost all - male audience , avoiding the camera by ostentatiously turning their backs towards it and the judge . As the judge read the decision , the plain - clothes men stood next to him . Strangers constantly entered and left the judge \u2019s deliberation room . There were brief glimpses of CARDINAL or CARDINAL guards wearing black hood - like masks inside the court room in front of the closed door .","The closing scenes briefly showed the large number of presumably undercover plain - clothes agents leaving the court room , not hiding their irritation when filmed . A few of the applicant \u2019s supporters , readmitted to the room after the deliberations , complained that the agents had occupied almost all of the seats . They asked the cameraman to film the presence of the agents . The first applicant then stated , \u201c Look , there they are ... the agents ( TanamSromlebi ) ! \u201d and pointed to the plain - clothes men . The following remarks could be heard : \u201c Their presence was overwhelming ! ... More agents than family or friends ! \u201d","In the last scene , a hooded , armed man inside the court room nodded to the cameraman , apparently requesting the latter to stop recording .","The case file also contained a video recording , submitted by the applicants , showing how CARDINAL plain - clothes men , identified in the ORG \u2019s video as undercover agents , attending the hearing of DATE , left ORG through the same back door exit as the handcuffed applicants . The agents were shown being greeted with familiarity in the backyard by the special security forces waiting for the applicants . Some of the undercover agents were filmed changing from their civil clothes into police jackets . The applicants were escorted from the courthouse in the presence of a great number of guards carrying machine guns and wearing black , hood - like masks .","In a letter of DATE , the second applicant informed ORG his early release from prison on the basis of a Presidential pardon of CARDINAL DATE . He maintained his intention to pursue the ORG proceedings .","LAW of the person , respect for human dignity ... \u201d","\u201c In the course of an investigative or judicial action , it is prohibited to exert upon a person physical or psychological pressure ... or to subject a detained person to conditions that encroach upon his or her human dignity . \u201d","\u201c CARDINAL . No one may be arrested without a court order or other judicial decision .","Courts , prosecutors and investigators are obliged to immediately release any person who is detained unlawfully . \u201d","\u201c CARDINAL . Where there is a sufficient basis for hearing the case , the judge ( court ) , without prejudging the merits of the case , shall commit the accused for trial ...","During the admissibility hearing , in addition to deciding whether to commit the accused for trial ... , the judge ( court ) shall decide whether to impose a measure of restraint on the accused . \u201d","\u201c The judge ( court ) shall decide whether to commit the accused for trial within DATE or , in complicated cases , within DATE of delivery of a final judgment on the last criminal case registered with the same judge ( court ) . \u201d","Article QUANTITY provided that the presiding judge was the authority in charge of a hearing . He or she was responsible for maintaining order in the court room and carried out all kinds of procedural actions envisaged by the LAW . In addition , Article CARDINAL stated that , during a hearing , the judge had to abide by all the general legal principles contained in LAW of Part I of the LAW , of which LAW , cited above , formed a part .","\u201c Extortion is claiming another person \u2019s object or property right or property use under threat of using violence against the victim , or the victim \u2019s close relative , destroying or damaging the object , or of making public information which may impair the victim \u2019s reputation , or of spreading such information as may substantially prejudice the victim \u2019s rights ... \u201d","Under LAW of ORG , in the event of a violation of prison regulations , a detainee could be subjected by the prison administration to disciplinary sanctions . Rule CARDINAL \u00a7 CARDINAL listed the disciplinary sanctions as follows :","( a ) a warning ;","( b ) a reprimand ;","( c ) a short - term or long - term ban on visits ;","( d ) confinement from DATE in a punishment cell ;","( e ) prohibition to receive parcels .","Rule CARDINAL \u00a7 CARDINAL explicitly prohibited detainees from taking food to a punishment cell from their ordinary cells .","Under Addendum No . CARDINAL to the Prison Rules , detainees were forbidden to use telephones in prison .","The relevant parts of the Report read as follows :","\u201c a. Prison No . CARDINAL , GPE","At the end of the visit in DATE , the ORG \u2019s delegation asked the NORP authorities to take out of use all cells located in the basement of the main detention block ( i.e. quarantine , transit and disciplinary cells ) . This measure was reportedly taken soon after the DATE visit . However , as a result of the increasing number of prisoners sent to ORG . CARDINAL , it became necessary to start using the basement cells again . In DATE , CARDINAL prisoners were being held in the basement ... The cells were dark , badly ventilated , damp and disgustingly filthy . Further , in some cells , prisoners were sharing beds .","DATE . Conditions on the other levels of the main detention block remained extremely poor . Many of the dormitories were grossly overcrowded , with CARDINAL m\u00b2 of living space per prisoner . The number of inmates often exceeded the number of beds , thereby compelling prisoners to sleep in CARDINAL and occasionally even CARDINAL shifts ( for example , CARDINAL prisoners in a cell measuring CARDINAL m\u00b2 which was equipped with CARDINAL beds ) . The situation was exacerbated by poor ventilation and lack of natural light ... The sanitary arrangements were also completely inadequate : CARDINAL prisoners might be sharing the same dilapidated and generally filthy toilet facility inside a dormitory . Further , there was no heating , and exposed electrical wires throughout the accommodation areas created a high risk of accidents ...","...","The situation with regard to food had not changed since the DATE visit ; in practice , prisoners relied to a great extent on food parcels from their families .","Further , as in DATE , prisoners did not receive any personal hygiene items and there were no laundry facilities . The prison had relinquished responsibility for providing prisoners with bedding and many prisoners slept in what could only be described as rags ...","... at the end of the visit in DATE the delegation made CARDINAL immediate observations in respect of Prison No . CARDINAL in GPE , requesting the NORP authorities to : ... ( ii ) definitively take out of service all cells located in the basement of the main detention building ( including the isolation and \u201c karzer \u201d cells ) ; ( iii ) ensure that all prisoners , including those in the \u201c quarantine \u201d section and disciplinary isolation cells , are guaranteed outdoor exercise of TIME per day .","In view of the deteriorated situation observed in DATE , the delegation reiterated the above - mentioned immediate observations ...","At the end - of - visit talks in DATE , the Minister of ORG acknowledged that Prison No . CARDINAL was substandard in all the key aspects ...","...","c. Discipline","... At Prison No . CARDINAL in GPE , the disciplinary cells criticised in the report on the visit in DATE had been taken out of service and replaced with CARDINAL other cells , located in a different part of the basement of the main detention block . Admittedly , the cells in question were larger and equipped with sleeping platforms . However , the cells were substandard in all other respects ; in particular , they had no access to natural light and were unventilated , humid and dilapidated ...","During the second periodic visit , the delegation was concerned to note that prisoners undergoing disciplinary confinement in the establishments visited were still not offered outdoor exercise ... at the end of the visit in DATE , the delegation made an immediate observation , requesting the NORP authorities to ensure that inmates placed in disciplinary cells in all penitentiary establishments in the country are guaranteed TIME of outdoor exercise per day ... The ORG reiterates [ that ] recommendation ... \u201d","The relevant parts of the Report read as follows :","\u201c ... The space allocated for prison cells in GPE \u2014 both in law and in practice \u2014 is significantly less than that required by regional human rights standards ... In its DATE recommendations to the NORP government , the ORG lowered this standard suggesting , \u201c A standard of CARDINAL m\u00b2 per prisoner should be aimed at . \u201d GPE \u2019s PERSON on Imprisonment requires that the living space for each convict in the cells of ORG must be not QUANTITY . Detainees should each be provided with a separate bed ...","ORG . CARDINAL dates from DATE ... In many parts of FAC . CARDINAL , the walls and floors are crumbling and in a state of disrepair . Electrical wires are exposed in the cells and corridors . The regular detention cells are filled with as many twotier metal bunk beds as the rooms will hold . There were no tables or chairs in the rooms at the time of ORG visit . Detainees must sit on beds or on the floor when they are not sleeping . The toilets are partitioned from the rest of the cell by only a short wall or sometimes with a piece of fabric or shower curtain that the inmates have put up themselves . This design allows for very little privacy for those using the sanitary facilities . Because of the overcrowding , beds are often placed very close to the toilets . The toilets are decaying and filthy . In several cells ORG found piles of garbage near the door . ORG considers the conditions in which detainees are housed in this facility violate the prohibition on inhuman or degrading treatment .","All of the cells in FAC No . CARDINAL visited by ORG smelled strongly of human sweat , human excrement , and cigarette smoke . Detainees spend consecutive DATE and DATE in these cells without being allowed outside ... The cells were also unreasonably hot , due to the overcrowding and lack of ventilation . Many prisoners were reduced to wearing very little clothing in an effort to stay cool ...","ORG found the most appalling conditions to be in the basement \u201c quarantine \u201d cells in FAC No . CARDINAL ... The cells visited by ORG had no natural light or ventilation , owing to their location in the basement , and CARDINAL tiny window covered with screens . Artificial light was provided by a bright light over the door . There was no running water in the sinks . There was standing water on the floor in one cell . The bed frames consisted of bare iron planks , and there were no mattresses and only a few tattered blankets ...","The deputy director of ORG . CARDINAL claimed that detainees \u201c wash once per week . \u201d However , detainees stated that they do not shower once per week because \u201c [ t]here are too many people . \u201d ...","In FAC No . CARDINAL , ORG found the kitchen building to be decaying . Water was overflowing some of the food preparation containers resulting in standing water on the floor ... \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":["5-1-c"],"non_violated_articles":["5"],"non_violated_paragraphs":["5-4"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82172","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2007,"docname":"CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM","importance":1,"conclusion":"No violation of P1-1","judges":"Alvina Gyulumyan;Anatoly Kovler;Andr\u00e1s Baka;Antonella Mularoni;Christos Rozakis;Ineta Ziemele;Ireneu Cabral Barreto;J\u00e1n \u0160ikuta;Javier Borrego Borrego;Jean-Paul Costa;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonp\u00e4\u00e4;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Pavlovschi;Viera Str\u00e1\u017enick\u00e1;Vladimiro Zagrebelsky;Volodymyr Butkevych","text":["The second applicant company is the registered owner of a plot of CARDINAL ha of agricultural land in GPE . The first applicant company acquired the land by a series of transactions DATE and owned it until DATE , when it transferred the land to the second applicant company subject to an option to repurchase . The owners of a property adjacent to the land , PERSON and PERSON ( \u201c the PERSON \u201d ) occupied the land under a grazing agreement until DATE . On DATE a chartered surveyor acting for the applicant companies wrote to the ORG noting that the grazing agreement was about to expire and requiring them to vacate the land . In DATE the applicant companies refused a request for a further grazing agreement for DATE because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission .","Notwithstanding the requirement to vacate the land at the expiry of the DATE agreement , the ORG remained in occupation at all times , continuing to use it for grazing . No request to vacate the land or to pay for the grazing which was taking place was made . If it had been , the evidence was that the PERSON would happily have paid .","NORP In DATE an agreement was reached whereby the applicant companies agreed to sell to the PERSON the standing crop of grass on the land for MONEY ( GBP ) . The cut was completed by DATE . In DATE an inquiry was made of the applicant companies as to whether the PERSON could take another cut of hay or be granted a further grazing agreement . No reply to this letter or to subsequent letters sent in DATE was received from the applicant companies and thereafter the PERSON made no further attempt to contact the applicant companies . From DATE until DATE the PERSON continued to use the whole of the disputed land for farming without the permission of the applicant companies .","In DATE Mr PERSON registered cautions at ORG against the applicant ORG title on the ground that he had obtained title by adverse possession .","On DATE the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions . On DATE the applicant companies issued further proceedings seeking possession of the disputed land .","The PERSON challenged the applicant ORG claims under LAW ( \u201c the LAW \u201d ) , which provides that a person can not bring an action to recover any land after the expiration of DATE of adverse possession by another . They also relied on LAW , which applied at the relevant time and which provided that , after the expiry of the DATE period , the registered proprietor was deemed to hold the land in trust for the squatter .","Judgment was given in favour of the PERSON on DATE ( [ DATE ] PERSON ) . Mr Justice PERSON held that since the PERSON had enjoyed factual possession of the land from DATE , and adverse possession took effect from DATE , the applicant ORG title was extinguished pursuant to LAW , and the PERSON were entitled to be registered as proprietors of the land . At the conclusion of his CARDINAL - page judgment , PERSON remarked that the result he had reached did not accord with justice and could not be justified by practical considerations : the justification advanced for the right to acquire title to land by adverse possession \u2013 namely the avoidance of uncertainty \u2013 had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at ORG . The fact that an owner who had sat on his rights for DATE should be deprived of the land was in his view \u201c illogical and disproportionate \u201d .","The applicant companies appealed and on DATE ORG reversed the ORG decision on the ground that the PERSON did not have the necessary intention to possess the land , and the applicant companies were therefore not \u201c dispossessed \u201d of it within the meaning of LAW ( [ DATE ] EWCA Civ CARDINAL , [ DATE ] ORG CARDINAL ) . Although this conclusion was sufficient to dispose of the appeal , CARDINAL members of ORG went on to address the question whether the applicant ORG loss of title to the land could also have given rise to a violation of LAW No . CARDINAL as applied in domestic law by LAW DATE .","Lord Justice Mummery , giving the judgment of the court , held that LAW No . CARDINAL did not impinge on the relevant provisions of LAW , which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for DATE or more after being dispossessed by another . The extinction of the applicant ORG title was not , in his view , a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate , but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period . In the alternative , ORG found that any deprivation was justified in the public interest , the conditions laid down in LAW being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title : those conditions were not disproportionate , the period of DATE being reasonable and not imposing an excessively difficult burden on the landowner .","Lord Justice PERSON took as his starting - point that limitation periods were in principle not incompatible with the PERSON and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the LAW . This position obtained , in his view , even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights , whether real or personal , or of damages : there was thus nothing inherently incompatible as between LAW and LAW No . CARDINAL .","The PERSON appealed to ORG , which , on DATE , allowed their appeal and restored the order of ORG ( [ DATE ] ORG CARDINAL , [ DATE ] CARDINAL All ER CARDINAL ) . Lord PERSON , with whom Lord PERSON of ORG and Lord PERSON agreed , held that the PERSON did have \u201c possession \u201d of the land in the ordinary sense of the word , and therefore the applicant companies had been \u201c dispossessed \u201d of it within the meaning of LAW . There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime . Concluding , Lord PERSON held as follows :","\u201c ... Despite ORG \u2019s notification to quit the land in DATE , its peremptory refusal of a further grazing licence in DATE and the totally ignored later requests for a grazing licence , after DATE the ORG stayed in occupation of the disputed land using it for what purposes they thought fit . Some of those purposes ( i.e. , the grazing ) would have fallen within a hypothetical grazing agreement . But the rest are only consistent with an intention , verified by Mr PERSON , to use the land as they thought best . That approach was adopted from the outset . In my judgment , when the PERSON remained in factual possession of the fully enclosed land after the expiry of the mowing licence they manifestly intended to assert their possession against ORG .","... Before your Lordships\u2019 ORG , it was conceded that LAW [ incorporating LAW ] did not have a retrospective effect . But ORG submitted that , even under the common - law principles of construction applicable before LAW came into effect , the court should seek to apply the law so as to make it consistent with LAW ] . Any such old principle of construction only applied where there was an ambiguity in the language of a statute . No such ambiguity in LAW of DATE was demonstrated to your Lordships . \u201d","Lord GPE of GPE , agreeing with Lord PERSON , made the following statement in the course of his judgment :","\u201c The PERSON have acted honourably throughout . They sought rights to graze or cut grass on the land after DATE , and were quite prepared to pay . When ORG failed to respond they did what any other farmer in their position would have done : they continued to farm the land . They were not at fault . But the result of ORG \u2019s inaction was that they enjoyed the full use of the land without payment for DATE . As if that were not gain enough , they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all . In the case of unregistered land , and in DATE before registration became the norm , such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay . But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result , and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it . It is reassuring to learn that LAW CARDINAL has addressed the risk that a registered owner may lose his title through inadvertence . But the main provisions of that Act have not yet been brought into effect , and even if they had it would not assist GPE , whose title had been lost before the passing of the LAW . While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend , this is a conclusion which I ( like the judge [ PERSON ] ... ) \u2018 arrive at with no LAW . \u201d ( PERSON ( ORG and Others v. PERSON and Another [ DATE ] CARDINAL All ER CARDINAL , at CARDINAL )","As noted above , the question whether the result was incompatible with the applicant ORG rights under LAW No . CARDINAL was not pursued before ORG . However , in his judgment Lord Hope of PERSON , who also agreed with Lord PERSON on the reasons for dismissing the appeal , observed that the question under the Convention","\u201c ... is not an easy one , as one might have expected DATE in the context of a statutory regime where compensation is not available DATE to lean in favour of the protection of a registered proprietor against the actions of persons who can not show a competing title on the register . Fortunately ... a much more rigorous regime has now been enacted in Schedule CARDINAL to LAW CARDINAL . Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain a title to it against the wishes of the proprietor . The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation , although that is an important factor , but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor . \u201d","The value of the land in issue is disputed between the parties . The applicant companies put their pecuniary loss at MONEY . The Government put the value of the land in DATE ( when the DATE limitation period expired ) at GBP MONEY , and in DATE ( when ORG judgment was delivered ) at MONEY .","At the relevant time , section CARDINAL of LAW , a consolidating Act , provided :","\u201c ( CARDINAL ) No action shall be brought by any person to recover any land after the expiration of DATE from the date on which the right of action accrued to him or , if it first accrued to some person through whom he claims , to that person .","...","( CARDINAL ) Part I of Schedule CARDINAL to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned . \u201d","Paragraph CARDINAL of Schedule CARDINAL provided :","\u201c Where the person bringing an action to recover land , or some person through whom he claims , has been in possession of the land , and has while entitled to the land been dispossessed or discontinued his possession , the right of action shall be treated as having accrued on DATE of the dispossession or discontinuance . \u201d","The same limitation provisions therefore applied to both registered and unregistered land . In the case of unregistered land , section CARDINAL of the DATE Act provided that , on the expiration of the limitation period regulating the recovery of land , the title of the paper owner was extinguished . In the case of registered land , section GPE ) of LAW DATE provided that on the expiry of the limitation period the title was not extinguished but the registered proprietor was deemed to hold the land thereafter in trust for the squatter .","GPE \u2019s ORG ( Fourth Edition , Reissue CARDINAL ) sets out the law in the following terms :","\u201c CARDINAL . When the owner of land has been out of possession , and a stranger has been in possession , for a period sufficient to bar the owner \u2019s right to re - enter or to recover possession by action , the owner \u2019s title is extinguished , and the stranger acquires a title which is good against all the world , including the former owner .","LAW operates negatively to bar the right and extinguish the title of the true owner , and does not effect a transfer of his estate to the stranger ; the new title depends on the principle that possession gives title , coupled with the extinction of the rights of the former owner , and is subject to any easements [ etc . ] which remain unextinguished . \u201d","ORG considered the law on limitation periods in its report of DATE ( Cmnd CARDINAL ) . It commented negatively on the ORG practice of granting an implied licence to the would - be adverse possessor , which had the effect of stopping time running against the owner , and proposed no change to the existing limitation periods , and agreed that the expiration of the limitation period should serve to extinguish the claimant \u2019s title .","A Law Commission Consultation Paper on Limitation of Actions of DATE ( Consultation Paper No . CARDINAL ) gave a number of general policy aims of the law on limitations . The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right . The ORG , too , has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial , and as guarantor of legal certainty . Finally , limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly .","A separate Law Commission Consultative Document on land registration in DATE ( prepared with ORG ; PERSON No . CARDINAL ) noted that , although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format , there were certain areas where this was not wholly true . CARDINAL example given was the position of the rights of adverse possessors ( section GPE ) of LAW DATE was referred to ) . The Consultative Document set out and commented on CARDINAL particularly cogent reasons often given for the law on adverse possession :","( i ) Because it is part of the law on limitation of actions . It noted :","\u201c ... because adverse possession is an aspect of the law of limitation , it is of course customary to account for it , in part at least , in terms of the policy of limitation statutes generally , namely to protect defendants from stale claims and to encourage plaintiffs not to sleep on their rights . However , adverse possession does not merely bar claims . Its effect is positive : \u2018 a squatter does in the end get a title by his possession and the indirect operation of LAW ] ... \u2019 This can only be justified by factors over and above those which explain the law on limitation . In this context it should be noted that a landowner may be barred even where he or she is quite blameless . As we have explained above , adverse possession can take place without it being readily detectable . In any event , this particular justification has much greater force in relation to unregistered land than it does for land with registered title . Unregistered title ultimately depends upon possession . It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights . ... [ w]here title is registered , ... the basis of title is primarily the fact of registration rather than possession . Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ... \u201d","( ii ) Because if land and its ownership are out of kilter , the land may become unmarketable . Where the registered owner has disappeared , and can not be traced , and a squatter takes possession , the doctrine of adverse possession \u201c does at least ensure that in such cases land remains in commerce and is not rendered sterile \u201d . Where there have been dealings \u201c off the register \u201d , such as where a farmer agrees to a land swap with a neighbour under a \u201c gentleman \u2019s agreement \u201d but does not register the change , \u201c adverse possession fulfils a useful function \u201d .","( iii ) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure . In such circumstances adverse possession can be justified on grounds of hardship , and there are parallels with the principles of proprietary estoppel .","( iv ) Because it facilitates and cheapens investigation of title to land . ORG accepted this last reason as being very strong for unregistered land , but considered that for registered land , where title depends on the contents of the register rather than possession , it was not applicable .","ORG proposed , provisionally , that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration , and that it should be limited to very few , exceptional cases .","A Report on Limitation of Actions ( Law Com No . CARDINAL ) and CARDINAL on registered land ( Law Com No . CARDINAL ) followed the Consultation Papers , and were published in DATE .","ORG on LAW recommended that the general limitation period for actions in respect of land should be DATE . It added that if the proposals made on registered land in PERSON No . CARDINAL were accepted , the proposal would relate only to interests in unregistered land ( and unregistrable interests in registered land ) .","As a result of the various criticisms , including those made by a number of the judges in the present case and the ORG on registered land ( Law Com No . CARDINAL ) , LAW CARDINAL made a number of changes to the law as it related to registered land . It provided that adverse possession , for however long , would not of itself bar the owner \u2019s title to a registered estate . A squatter was entitled to apply to be registered as proprietor after DATE , and would be so registered if application was not opposed . If the application was opposed , it would be refused . If the application was refused but no steps were taken to evict the squatter or otherwise regulate the position , he was entitled to apply again to be registered as proprietor , and would be so registered whether or not the application was opposed . LAW came into force on DATE .","On DATE , Deputy Judge PERSON in ORG gave judgment in the case of ORG v. ORG , DATE ) . The case concerned a licensee who had remained in possession of registered land for DATE after the expiry of his licence . Applying the judgment of ORG in the present case , the judge found that under LANGUAGE law as it stood up to the entry into force of LAW DATE the registered owner of the land lost all claim to it . However , on analysing the facts on a Convention basis , he found that there was no real public or general interest in the law on adverse possession in the case of registered land , and that the adverse consequences for the landowner were disproportionate . By reinterpreting the relevant legislation in accordance with section CARDINAL of LAW , the judge found that the claim by the former licensee to have acquired the disputed land failed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81366","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF WILUSZ v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Nicolas Bratza","text":["NORP In DATE ORG transferred to the applicants a property situated in GPE . There was no adequate access by road to the property at that time , but the ORG authorities declared that an access road would soon be constructed . However , the authorities did not undertake any action to ensure proper access to the applicants ' property . In particular , a right of way through neighbouring properties was never created .","In DATE the applicants brought a civil action to have a right of way established by way of a judicial decision . On DATE ORG allowed their request . Their neighbours appealed .","On DATE the ORG quashed the judgment of the firstinstance court and remitted the case for reexamination , finding that the first - instance court had failed to assess the evidence properly .","By a judgment of DATE ORG again granted a right of way to the applicants . The neighbours brought a new appeal . On DATE the ORG quashed the contested judgment and again remitted the case for re - examination .","On DATE ORG allowed the applicants ' claim . ORG dismissed the neighbours ' appeal on DATE . The neighbours brought a cassation appeal before ORG .","ORG refused to entertain their appeal on DATE . This decision was served on the applicants on CARDINAL DATE .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of the PERSON of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) , are stated in the ORG 's decisions in the cases of ORG v. GPE no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL , ORG CARDINALV and PERSON GPE no . CARDINAL ( dec . ) , ECHR CARDINALVIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , ORG CARDINALV.","NORP In particular , section CARDINAL of LAW lays down the following transitional rules in relation to applications already pending before the ORG :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .","The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-89161","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2008,"docname":"CASE OF SOLDATENKO v. UKRAINE","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych","text":["The applicant was born in DATE and is currently detained in a penitentiary institution in the GPE region , awaiting his extradition to GPE . The applicant \u2019s lawyer claims that the applicant is a stateless person . According to the Government , the applicant is a NORP national . The applicant himself does not deny his NORP nationality and has not raised the issue of his allegedly stateless status before the NORP authorities .","On DATE the NORP law - enforcement authorities issued a bill of indictment against the applicant for inflicting light and grievous bodily harm on CARDINAL individuals on DATE ( the latter , more serious crime is punishable by CARDINAL to CARDINAL years\u2019 imprisonment under LAW of GPE ) . The same day the NORP police ordered the applicant \u2019s arrest . This latter decision was approved by ORG on DATE .","On DATE a search for the applicant was announced by the police .","The applicant left GPE in DATE because of his alleged persecution on ethnic grounds . Since then he has resided in GPE .","On DATE the applicant was apprehended by the police . According to the applicant his relatives were informed that he had been arrested for hooliganism and later they were informed he had been arrested under LAW under an international search warrant .","DATE the applicant was informed that he was wanted by the law - enforcement authorities of GPE . According to the applicant , the police officers persuaded him to refrain from asking for legal assistance under the pretext that all procedural steps in his criminal case would be conducted in the territory of GPE .","DATE ORG received an official request from the NORP authorities for the applicant \u2019s provisional arrest under LAW , DATE .","On DATE the applicant was allowed to see a lawyer .","On DATE the applicant was brought by the police before a judge of ORG of LOC , who ordered his detention pending the extradition proceedings against him . The decision , which stated that an appeal could be made under LAW , was served immediately . No time - limit was set for his detention .","DATE the applicant was questioned by ORG , to whom he explained , inter alia , that prior to his arrest he had not been aware that he had been wanted by the NORP law - enforcement authorities . He further explained that he had signed a waiver of assistance from a lawyer since the police had explained to him that he would not face a trial in GPE .","On DATE the applicant requested the ORG to apply Rule CARDINAL of ORG in his case . On DATE the President of the ORG decided to apply Rule CARDINAL , indicating to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicant to GPE pending the ORG \u2019s decision .","On DATE ORG of GPE requested the applicant \u2019s extradition with a view to criminal prosecution for the crimes of inflicting light and grievous bodily harm on CARDINAL individuals . It further gave assurances that the applicant would be prosecuted only for the crimes indicated in the request , that he would be allowed to leave GPE after serving his sentence , and that he would not be handed over to a third country without the consent of the NORP authorities . It added that he had never been and would never be discriminated against on the grounds of social status , race , ethnic origin or religious beliefs . This request was received by ORG of GPE on DATE . It appears that the applicant learned about this document only in the framework of the Convention proceedings .","On DATE ORG of GPE informed ORG of GPE of the suspension of the extradition proceedings pursuant to the interim measure indicated by the ORG .","On DATE ORG sent a petition to the head of ORG , stating that the applicant \u2019s detention had breached criminal procedural law . According to the petition , the applicant had been arrested on DATE and placed in a cell at the police station in accordance with the arrest warrant issued by GPE Prosecutor \u2019s Office of GPE . The prosecutor noted that from DATE the police had not brought the applicant before a court to decide on his detention and had not informed the prosecutor about his detention . The prosecutor considered that the situation had arisen because of the police ORG negligent performance of their duties and called for disciplinary action to be taken against them .","By orders of DATE and DATE the police officers responsible for the applicant \u2019s detention in violation of the law were punished by an oral warning , a formal reprimand and deprivation of bonus payments for DATE .","In a letter of DATE the First Deputy Prosecutor General of GPE , in reply to the request from ORG , informed it that the observance of the applicant \u2019s rights and legitimate interests would be guaranteed , in particular :","\u201c - the requirements of LAW will be fulfilled in respect of PERSON , he will not be subjected to torture , inhuman or degrading treatment or punishment after extradition ;","- in case of necessity he will be provided with appropriate medical treatment and medical assistance ;","- the right to fair judicial consideration of his criminal case will be secured to him . \u201d","He further pointed out that the death penalty had been abolished in GPE .","NORP The relevant provisions of the LAW read as follows :","\u201c International treaties that are in force and are agreed to be binding by the Verkhovna Rada of GPE are part of the national legislation of GPE . \u201d","\u201c Every person has the right to freedom and personal inviolability .","No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law .","In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody .","Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .","Everyone who has been detained has the right to challenge his or her detention in court at any time .","Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . \u201d","\u201c Human and ORG rights and freedoms are protected by the courts .","Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies exercising ORG power , local self - government bodies , officials and officers ...","... After exhausting all domestic legal remedies , everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant ... \u201d","\u201c The following are determined exclusively by the laws of GPE :","( CARDINAL ) human and ORG rights and freedoms , the guarantees of these rights and freedoms ; the main duties of the citizen ; ..","( CARDINAL ) the judicial system , judicial proceedings , the status of judges , the principles of judicial expertise , the organisation and operation of the prosecution service , the bodies of inquiry and investigation , the notary , the bodies and institutions for the execution of punishments ; the fundamentals of the organisation and activity of the advocacy ; ... \u201d","The Convention was ratified by ORG on DATE . It entered into force in respect of GPE on DATE and in respect of GPE on DATE . The text of the ORG was published on DATE in ORG ( no . DATE ) . The relevant provisions of the Convention read as follows :","\u201c CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( \u0445\u043e\u0434\u0430\u0442\u0430\u0439\u0441\u0442\u0432\u043e ) . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow . A petition for arrest ... may be sent by post , wire , telex or fax .","NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .","NORP In case of [ the person \u2019s ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . \u201d","\u201c CARDINAL . A person arrested pursuant to LAW shall be released if no request for extradition is received within DATE of the arrest .","A person arrested pursuant to LAW shall be released if no request for extradition is received within the time established by the law concerning arrest . \u201d","Chapter CARDINAL-a of the Code lay down the procedure for considering complaints by citizens about decisions , acts and omissions of ORG bodies , legal persons and officials in the sphere of administration .","DATE LAW provides that the task of the administrative judiciary is the protection of the rights , freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public - law relations from violations by ORG bodies , bodies of local self - government , their officials and other persons in the exercise of their powers . Under the second paragraph of this Article , any decisions , actions or omissions of the authorities may be challenged before the administrative courts .","According to paragraph CARDINAL of LAW of LAW , after its entry into force any applications and complaints arising from administrative - law relations ( LAW of LAW DATE ) that had been lodged but not yet considered were to be examined under the procedure set out in LAW .","Article CARDINAL of the Code governs the arrest and detention of persons suspected of committing a criminal offence . It provides :","\u201c The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :","if the person is discovered whilst or immediately after committing an offence ;","if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;","if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home .","For each case of detention of a criminal suspect , the investigating body shall be required to draw up a record mentioning the grounds , the motives , DATE , time , DATE , the place of detention , the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The record of detention shall be signed by the person who drew it up and by the detainee .","A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for detention shall be sent to him as well .","The investigating body shall immediately inform one of the suspect \u2019s relatives of his detention ...","Within TIME after the arrest the investigating body shall :","( CARDINAL ) release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of CARDINAL of the present Article ;","( CARDINAL ) release the detainee and select a non - custodial preventive measure ;","( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .","If the detention is appealed against to a court , the detainee \u2019s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE after receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .","The complaint shall be considered in accordance with the requirements of LAW . Following its examination , the judge shall give a ruling , either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful .","The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court \u2019s ruling .","Detention of a criminal suspect shall not last for CARDINAL .","If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up a record to that effect , and shall inform accordingly the official or body that carried out the arrest . \u201d","Article CARDINAL of the PERSON provides that preventive measures shall be imposed on a suspect , accused , defendant , or convicted person .","Article CARDINAL of the Code concerns the selection of a preventive measure in criminal proceedings . It reads as follows :","\u201c At the stage of the pre - trial investigation , a non - custodial preventive measure shall be selected by the investigating body , investigator or prosecutor .","In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure , with the prosecutor \u2019s consent he shall lodge an application with the court . The prosecutor is entitled to lodge an application to the same effect . In determining this issue , the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody , and to verify that the evidence was received in a lawful manner and is sufficient for charging the person .","The application shall be considered within TIME of the time at which the suspect or accused is detained .","In the event that the application concerns the detention of a person who is currently not deprived of his liberty , the judge shall be entitled , by means of an order , to give permission for the suspect to be detained and brought before the court under guard . Detention in such cases may not exceed TIME ; and in the event that the person is outside the locality where the court is situated , it may not exceed TIME from the moment at which the detainee is brought within the locality .","Upon receiving the application , the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator . A prosecutor shall question the suspect or accused and , if necessary , shall hear evidence from the person who is the subject of the proceedings , shall obtain the opinion of the previous prosecutor or defence counsel , if the latter appeared before the court , and shall make an order :","( CARDINAL ) refusing to select the preventive measure if there are no grounds for doing so ;","( CARDINAL ) selecting a preventive measure in the form of taking of a suspect or accused into custody .","The court shall be entitled to select for the suspect or accused a non - custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her .","The judge \u2019s order may be appealed against to the court of appeal by the prosecutor , suspect , accused or his or her defence counsel or legal representative , within DATE from the date on which it was made . The lodging of an appeal shall not suspend the execution of the judge \u2019s order . \u201d","Article CARDINAL of the Code lays down the procedure of appeal against first - instance court rulings and decisions , including those given under LAW .","The recommendation calls for the following procedural requirements in the case of removal of asylum seekers :","\u201c ORG ...","Recommends that governments of member states , while applying their own procedural rules , ensure that the following guarantees are complied with in their legislation or practice :","An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when :","that authority is judicial ; or , if it is a quasi - judicial or administrative authority , it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence ;","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ;","CARDINAL the remedy is accessible for the rejected asylum seeker ; and","CARDINAL the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","The relevant extracts from the Resolution of the Plenary Supreme Court read as follows :","\u201c The LAW of GPE provides that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law ( LAW ) .","In accordance with the first paragraph of LAW , international agreements in force ratified by the PERSON form part of the national legislation . Under the second paragraph of section CARDINAL of LAW of DATE , if an international treaty to which GPE is a party and which has been ratified in accordance with a procedure prescribed by law establishes rules which differ from those laid down by the NORP legislation , the rules of the international treaty shall apply .","Issues relating to inviolability and freedom of movement ( detention , arrest , apprehension and so forth ) are therefore regulated not only by the norms of LAW ( \u2018 the CCP\u2019 ) and LAW ( \u2018 the ORG ) , but also by international treaties to which GPE is a party , and in particular by the DATE LAW and its Additional Protocols of DATE and DATE , ratified on DATE by Law no . CARDINAL , ... FAC of DATE , concluded in GPE and ratified on DATE by PERSON no . CARDINAL , bilateral treaties between GPE and other GPE , multilateral specialised treaties ...","... An examination of the practice of the courts of GPE in deciding issues relating to the extradition of persons to other GPE demonstrates that they have applied the relevant legislation differently . In particular , some courts initiate proceedings on applications by the competent authorities concerning the application of a preventive measure in the form of detention of the persons to be extradited , while others refuse to institute proceedings on such applications .","For the purposes of the uniform application of the legislation governing extradition to other GPE and the protection of fundamental human rights and freedoms , ORG resolves :","NORP ... in deciding whether an issue relating to extradition to another State is within the courts\u2019 jurisdiction , the courts must refer to the provisions of LAW , other national legislation , including the [ DATE ] ORG or other international treaties to which GPE is a party and by which it has agreed to be bound , or the former GPE \u2019s treaties applied by GPE pursuant to Law no . CARDINALXII of CARDINAL DATE on the succession of GPE .","The courts should therefore decide what treaties have been concluded between GPE and the requesting ORG and what procedure such treaties lay down for resolving extradition issues ...","Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that , pursuant to LAW and similar provisions of other international treaties to which GPE is a party , the extradition procedure is regulated solely by the law of the requested ORG the courts are not empowered to decide on this issue .","They [ the courts ] can not on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer , including their detention , as these issues are to be decided by the competent NORP authorities .","Bearing in mind that in GPE a person can be held in detention for DATE only on the basis of a reasoned court decision , and taking into account the fact that , pursuant to the second paragraph of LAW , such a decision can only be taken by a competent NORP court , courts must accept jurisdiction and examine the merits of ORG requests and requests , approved by the prosecuting authorities , from the bodies acting upon extradition requests from other GPE [ concerning ORG extradition ] , for detention and rendition under guard to the competent ORG bodies of the requesting ORG .","Pursuant to LAW and other similar provisions of international treaties to which GPE is a party , the competent ORG bodies of the requesting ORG may in some cases request that a wanted person be temporarily detained . The competent ORG bodies dealing with the request shall take a decision in accordance with their country \u2019s legislation .","In this way , local courts decide on and examine the merits of requests made by prosecutors or other bodies approved by them which are acting upon requests from other GPE relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting ORG , for a period established by ORG or another international treaty .","The courts must decide whether an individual \u2019s detention or temporary arrest is in accordance with the rules laid down in LAW .","The courts have the right to apply paragraph CARDINAL of Article CARDINAL - CARDINAL of the Code of Criminal Procedure in a situation where a person is handed over to the court with a view to a decision on his apprehension ( temporary arrest ) for the purposes of extradition or transfer .","The court shall review the existence of a request and of the relevant documents , established by treaty , forming the basis for extradition , and the absence of any grounds prohibiting extradition or transfer ( Articles CARDINAL , CARDINAL , DATE , DATE and CARDINAL of LAW and the DATE and DATE Additional Protocols thereto and LAW ) . In particular , detainees may not be extradited for political and military offences ; in the event of expiry of the limitation period ; when , in the territory of the party to which the extradition request has been made , a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request ; when issues relating to the extradition of a citizen of GPE or stateless persons permanently residing on the territory of GPE are being considered ; in respect of persons enjoying refugee status in GPE ; if the requesting party fails to provide GPE with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested , [ if the offence in issue ] is punishable by the death sentence in accordance with the law of the requesting ORG ; if the offence , in accordance with the law of the party requesting extradition , or NORP law , can be prosecuted by means of a private prosecution ; if the offence which forms the basis for extradition is punishable by a maximum [ sentence ] of DATE imprisonment or a less severe penalty .","The courts shall also take into account other provisions of LAW or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition .","The courts should also make due reference to the fact that , under LAW , its provisions replace any other bilateral international treaties , conventions or agreements regulating extradition issues between any CARDINAL Contracting Parties . Therefore , if a requesting ORG is a party to ORG , the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part , where they amend the provisions of that Convention .","In accordance with the third paragraph of LAW , the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another ORG .","Such requests shall be examined on the basis of LAW and ( CARDINAL) of LAW . In deciding whether a person is being detained lawfully , the judge shall refer to the relevant provisions of LAW ORG with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained , and also to the presence of the necessary documents on which the extradition is based ( in particular , the request for extradition , the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person , and so forth ) . \u201d","The third party , commenting on the lack of a relevant procedure for reviewing decisions on extradition in NORP law , submitted an example of the relevant domestic practice , which at the time had received considerable attention from the international community .","The DATE Country Reports on ORG , released by ORG on DATE , described this example of administrative practice in the following way in its report on GPE :","\u201c On DATE , ORG and the international community strongly condemned the forcible deportation of CARDINAL NORP asylum seekers . The ORG [ Security Service of GPE ] detained CARDINAL men in GPE based on extradition warrants issued by the GPE authorities on the grounds that they allegedly participated in the LOC mass protests in GPE in DATE . They were transferred to a ORG detention facility in PERSON . The ORG asked authorities for assurances that no asylum - seekers would be forcibly returned unless they had been determined not to be refugees and had completed asylum procedures , including any appeal . ORG in GPE rejected the asylum applications on the basis that they were \u2018 manifestly unfounded\u2019 . On DATE , CARDINAL of the men were forcibly returned to GPE . ( The remaining man was reportedly allowed to stay because he had relatives in the country . ) CARDINAL NORP regional human rights organizations issued a statement protesting the incident . On DATE , ORG issued a legal opinion saying that deportation was illegal . The president \u2019s chief of staff stated that the deportation was a violation of procedure because the refugees were not granted DATE to appeal the deportation , but added that the extradition was acceptable as they \u2018 belonged to a radical Islamic group\u2019 . \u201d","The Country Reports on Human Rights Practices of the US ORG ( hereafter \u201c the Reports \u201d ) for DATE , released on DATE , noted with respect to GPE :","\u201c c. Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment","... there were widespread credible reports that security officials tortured , routinely beat , and used force against criminal suspects and prisoners to obtain confessions ...","... There were reports that prisoners needing medical treatment were beaten on their way to and from the hospital . Security forces also used denial of medical treatment and food , verbal intimidation , and placement in unsanitary conditions to coerce confessions ...","... Conditions were poor in prisons , which were unsanitary , overcrowded , and unsafe . Disease , particularly tuberculosis , was rampant , in part because prisoners who were ill were often not removed from the general prison population . Food was poor and prisoners depended on relatives to supplement inadequate food supplies . Facilities for prisoner rehabilitation and recreation were extremely limited . Most prisoners could receive food and sundries once per DATE from relatives ; those who did not suffered greatly . Prisoners held under the \u2018 Betrayers of the Motherland\u2019 law were unable to receive food , sundries , or visits by relatives . Most were held in the newly constructed maximum security prison at FAC , where access to prisoners was extremely limited ...","There were CARDINAL types of prisons throughout the country : educational - labor GPE ; correctional - labor GPE ; and prisons . Some prisoners , usually former government officials , were sent into internal exile . In the correctional - labor GPE , there were reports of excessive periods of isolation of prisoners in cells and \u2018 ORG . A new prison for hardened criminals and political prisoners at FAC , near Ashgabat , was completed in DATE . Authorities allegedly threatened , harassed , and abused prisoners in an attempt to force some prisoners to renounce their faiths .","In GPE prison , located in LOC , prisoners were forced to work in a kaolin mine under hazardous and unhealthy conditions ...","... Some prisoners died due to the combination of overcrowding , untreated illnesses , and lack of adequate protection from DATE heat ...","... Prison officials refused to respond to inquiries from family members and foreign diplomats about ORG whereabouts or physical condition , or to allow family members , foreign diplomats or international observers , including ORG ( ICRC ) , to visit detainees or prisoners , including political prisoners , by DATE . The Government claimed that granting access to prisoners would be an admission that there were problems with the country \u2019s penal system ...","Detainees are entitled to immediate access to an attorney once a bill of indictment has been issued ; however , in practice they were not allowed prompt or regular access to legal counsel . Incommunicado detention was a problem . Authorities regularly denied prisoners visits by family members , who often did not know their whereabouts ...","d. Arbitrary Arrest , Detention , or Exile","... In DATE , President PERSON signed the \u2018 Betrayers of the Motherland\u2019 law , which characterizes any opposition to the government as an act of treason . Those convicted under the law face life imprisonment , are ineligible for amnesty or reduction of sentence , and may not receive visitors or food from outside sources ... By DATE , CARDINAL persons were arrested or convicted under the law ...","The law provides that a person accused of a crime may be held in pretrial detention for DATE , which in exceptional cases may be extended to DATE . In practice , authorities often exceeded these limits ...","e. Denial of Fair Public Trial","The LAW provides for an independent judiciary ; however , in practice the judiciary was not independent . The President \u2019s power to select and dismiss judges subordinated the judiciary to the Presidency . The President appointed all judges for a term of DATE . There was no legislative review of these appointments , except for the Chairman ( Chief Justice ) of ORG , and the President had the sole authority to dismiss all appointees before the completion of their terms ...","The law provides for the rights of due process for defendants , including a public trial , access to accusatory material , the right to call witnesses to testify on their behalf , a defense attorney , a court - appointed lawyer if they could not afford one , and the right to represent themselves in court . In practice , authorities often denied these rights , and there were few independent lawyers available to represent defendants ...","In DATE , summary trials of those accused in the DATE attack began without public notice . Suspects were not afforded regular access to their attorneys , and their attorneys were not allowed to cross - examine other defendants in the case during the pretrial investigation . Attorneys for some defendants received notice that proceedings against their clients were beginning TIME before the trials ( the norm is DATE ) . Some defendants did not receive adequate legal counsel . Attorneys for a number of defendants expressed regret for defending their clients in their opening statements , which were broadcast on state - owned television , even though the trials themselves were not public . The Government refused to allow family members or foreign diplomats to observe the proceedings . AI reported that none of the defendants had an independent lawyer representing them during their trial .","Defendants were not allowed to confront or question witnesses against them . Defendants and their attorneys were denied access to government evidence against them ; ORG stated the evidence consisted of \u2018 state ORG . The defendants did not enjoy a presumption of innocence . Before the trials began , the Government publicly announced that the principal defendants were guilty and sentenced them to life imprisonment under the new \u2018 Betrayers of the Motherland\u2019 law . Sentences for those convicted of involvement in the DATE attack ranged from life imprisonment to forced resettlement . The systemic failure to observe due process in investigating and prosecuting prisoners implicated in the attack made it difficult to distinguish between those actually complicit in the attack and some who may be political prisoners convicted for their perceived political opposition views . An OSCE Rapporteur described the trials as \u2018 in breach of all the most elementary principles of the rule of law\u2019 .","Courts allegedly ignored allegations of torture that defendants raised in trial ...","In practice , adherence to due process in other cases was not uniform , particularly in the lower courts in rural areas . Even when due process rights were observed , the authority of the government prosecutor was so much greater than that of the defense attorney that it was very difficult for the defendant to receive a fair trial . In an DATE case against CARDINAL former senior officials , ORG refused to admit evidence critical to the defense , despite the fact that it appeared to be admissible under the law .","In general , observers were not permitted access to ostensibly open court proceedings . The Government physically prevented foreign diplomats from attending the trials of accused DATE attackers and of a civil society activist in DATE ; however , foreign diplomats attended the trial of CARDINAL former officials in DATE and of a member of ORG in DATE ... \u201d","The DATE Reports , released on DATE , showed no improvements in the situation :","\u201c c. Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment","The constitution and law prohibits such practices ; however , security officials tortured , routinely beat , and used excessive force against criminal suspects , prisoners , and individuals critical of the government , particularly in detention while seeking a confession ...","Prison and ORG","Prison conditions were poor ; prisons were unsanitary , overcrowded , unsafe , and posed a threat to life . Disease , particularly tuberculosis ( GPE ) , was rampant . There continued to be concerns that prisoners with TB were released untested and untreated into the general population , although the government reportedly began screening prisoners for GPE , among other diseases , upon their release and provided some treatment in some cases . Prisoners diagnosed with GPE were transferred to a special ORG hospital in PERSON for treatment . Government officials protested foreign diplomatic ORG allegations of poor prison conditions , but they did not respond to direct inquiries . Nutrition was poor , and prisoners depended on relatives to supplement inadequate food supplies , although prisoners convicted for treason were unable to receive supplies from relatives . The government defined treason as any opposition to the government ...","Family members and international publications claimed some prisoners died due to the combination of overcrowding , untreated illnesses , and lack of adequate protection from DATE heat ...","There were CARDINAL types of incarceration facilities throughout the country : educational - labor GPE , correctional - labor GPE , and prisons . Some prisoners , usually former government officials , were sent into internal exile . In the correctional - labor GPE , relatives of prisoners reported excessive periods of prisoner isolation . There were reports that prisoners were forced to work under hazardous and unhealthy conditions in a kaolin mine in FAC , near GPE ...","d. Arbitrary Arrest or Detention","The law prohibits arbitrary arrest and detention ; however , arbitrary arrest and detention were serious problems ...","Arrest and Detention","... Detainees are entitled to immediate access to an attorney once a bill of indictment is issued , and they were able to choose their counsel ; however , in practice they did not have prompt or regular access to legal counsel . In some cases legal counsel ceased advising their clients after government officials altered the charges or case details initially provided to defendants . Incommunicado detention was a problem . By law detainees are to be charged within TIME ; authorities did not respect this right in practice . There was no bail system . Authorities denied some prisoners visits by family members during DATE . Families sometimes did not know the whereabouts of imprisoned relatives ...","The law characterizes any opposition to the government as an act of treason . Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence . Unlike in DATE , there were no known treason convictions during DATE . Those expressing views critical of or different from those of the government were arrested on charges of economic crimes against the state and various common crimes ...","e. Denial of Fair Public Trial","The law provides for an independent judiciary ; however , in practice the judiciary was subordinate to the president . There was no legislative review of the president \u2019s judicial appointments , except for the chairman ( chief justice ) of ORG , who was reviewed by the rubber - stamp parliament . The president has the sole authority to dismiss all judges before the completion of their terms and has done so frequently down to the city level ...","Trial Procedures","The draft revised criminal procedure code released in DATE remained pending at DATE . The code could significantly alter the DATE NORP code , which was still in force . The proposal incorporated rights of the accused , including the introduction of the presumption of innocence , restraints on police searches , establishment of a bail mechanism , and limits on pretrial detention .","The law provides due process for defendants , including a public trial , access to accusatory material , the right to call witnesses to testify on their behalf , a defense attorney , a court - appointed lawyer if the defendant can not afford one , and the right to represent oneself in court . In practice authorities often denied these rights , and there were few independent lawyers available to represent defendants . There is no jury system . At times defendants were not allowed to confront or question witnesses against them , defendants and their attorneys were denied access to government evidence against them , and defendants frequently did not enjoy a presumption of innocence . In some cases , courts refused to accept exculpatory evidence provided by defense attorneys , even if that evidence would have changed the outcome of the trial . Even when due process rights were observed , the authority of the government prosecutor far exceeded that of the defense attorney , and it was very difficult for the defendant to receive a fair trial . Court transcripts were frequently flawed or incomplete , especially in cases in which defendants\u2019 testimony needed to be translated from NORP to NORP . Lower courts\u2019 decisions could be appealed , and the defendant could petition the president for clemency . However , in most cases , courts allegedly ignored allegations of torture that defendants raised in trial .","Foreign observers were permitted at some trials . However , many more trials , especially those considered to be politically sensitive , including the trial of ORG affiliate and ORG \/ ORG correspondent PERSON , were closed to observers ...","Political Prisoners and Detainees","The law characterizes any opposition to the government as an act of treason . Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence .","Opposition groups and international organizations claimed the government held many political detainees , although the precise number was unknown . Detainees may include CARDINAL relatives and associates of those implicated in the DATE attack being held without charge for their perceived political opinions and possible involvement in the attack .","Government officials refused to respond to inquiries from family members and diplomats about political prisoners\u2019 location or condition . Government officials also refused to permit family members , foreign diplomats , or international observers , including the ICRC , access to detainees or prisoners associated with the DATE attack . \u201d","Referring to the continuation of gross and systematic violations of human rights in the country , the ORG Secretary - General \u2019s report highlighted among the main areas of concern the use of torture and the absence of an independent judiciary in GPE . In his report the Secretary - General further noted , in particular :","\u201c CARDINAL . While welcoming the submission of the reports , the committees generally expressed the need for more information on the practical implementation of the provisions of the conventions , including statistical data , in accordance with the guidelines for preparation of reports . ORG \u2018 noted with deep concern the major contradictions between , on the one hand , consistent information from both intergovernmental and nongovernmental sources relating to the existence of grave violations of the Convention in GPE , and , on the other hand , the sometimes categorical denials by LAW \/ CO\/CARDINAL ) . ORG also encouraged ORG to increase its efforts to institute a constructive and sincere dialogue .","...","PERSON Developments concerning the full respect for all human rights and fundamental freedoms","Prison conditions and torture","The following sections are based on information obtained by ORG , the special procedures of ORG and the ORG treaty bodies . Due to the limited access to information in GPE by international human rights bodies , further details on the human rights situation in the country were not available for the preparation of the present report .","...","The Special Rapporteur on the question of torture referred to the situation of a number of individuals convicted in DATE and DATE to prison terms ranging DATE and life for their alleged involvement in what the authorities described as an assassination attempt on the President in DATE ( E \/ CN.CARDINAL\/CARDINAL\/CARDINAL\/Add.CARDINAL ) . All these prisoners continue to be held incommunicado , without access to families , lawyers , or independent bodies such as ORG . The Special Rapporteur on the question of torture also mentioned GPE as CARDINAL of CARDINAL Governments that have never responded to urgent appeals sent under his mandate ( ORG ) , although having received a significant number of urgent appeals .","The death in custody of a ORG journalist , PERSON , whose body allegedly bore signs of torture , raises particular concern .","ORG expressed its deep concern at the information that torture and ill - treatment of detainees , including children , is widespread ( ORG \/ CO\/CARDINAL ) , especially at the moment of apprehension and during pre - trial detention , and used both to extract confessions or information and as an additional punishment after the confession ... \u201d","ORG in its DATE Report on Human Rights in LOC noted the widespread use of torture and ill - treatment in custody in GPE and poor prison conditions there . The same problems in GPE are mentioned by ORG in its ORG DATE ."],"violated_articles":["13","3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78838","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF OLEG SEMENOV v. UKRAINE","importance":4,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the town of PERSON , ORG , GPE . He is a former employee of the NORP OJSC \u201c NORP \u201d ( \u201c the ORG , \u201d ORG \u201c \u041f\u0456\u0432\u0434\u0435\u043d\u0435\u043b\u0435\u043a\u0442\u0440\u043e\u043c\u0430\u0448 \u201d ) .","The background facts for the case are described in the case of PERSON GPE ( no . GPE , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) .","On DATE ORG \u043c\u0456\u0441\u044c\u043a\u0438\u0439 \u0441\u0443\u0434 PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u0456 ) ordered the Company to pay the applicant ORG CARDINAL in salary arrears . This judgment became final and the writs of execution were transferred to ORG .","NORP By letters of CARDINAL DATE and DATE , ORG and ORG of Justice informed the applicant that the enforcement proceedings had been suspended due to the proceedings of financial rehabilitation of the debtor .","On DATE ORG rejected the applicant 's complaint about the allegedly unlawful inactivity of ORG . The court stated that there was no fault attributable to the defendant .","On DATE ORG resumed the execution proceedings in the applicant 's case . On DATE and DATE , it ordered the seizure of the ORG 's accounts . However , on DATE ORG , on the trustee 's appeal , quashed these decisions because LAW envisaged the obligatory suspension of enforcement proceedings pending the resolution of a bankruptcy case .","The judgment in the applicant 's favour remains unenforced .","The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) and ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70282","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2005,"docname":"ADAM AND OTHERS  v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"John Hedigan","text":["The applicants , Mr R\u00fcdiger PERSON , PERSON and PERSON , are NORP nationals . They were represented before the ORG by PERSON , a lawyer practising in GPE .","The applicants worked as ballet dancers in and for GPE ( \u201c GPE \u201d ) . At the end of their stage career they were paid a DATE allowance ( \u201c the allowance \u201c ) for former ballet dancers . That allowance was paid by virtue of a set of Regulations enacted by the Minister of Culture ( Anordnung \u00fcber die PERSON in staatlichen ORG der DDR ) of CARDINAL DATE . It accrued after reaching DATE and having worked for DATE as a dancer . It was paid , irrespective of other earnings , by the last employer . Once the former dancer received an old - age or invalidity pension the allowance was paid by ORG ( ORG DDR ) .","After the NORP reunification the allowance was initially converted into and paid in NORP marks ( ORG ) . On DATE , however , all allowance payments to former ballet dancers were discontinued on the basis of LAW read in conjunction with PERSON , Chapter VIII , Section H , paragraph III , Nr . CARDINAL of LAW ( Einigungsvertrag ) of DATE , hereafter referred to as \u201c LAW \u201d ( see \u201c Relevant domestic law and practice \u201d below ) .","In DATE the applicants and several other former ballet dancers of the GPE lodged a constitutional complaint with ORG . The latter refused to accept the complaint because the applicants had not exhausted legal remedies .","Applicant PERSON","Applicant PERSON ( A ) worked from DATE as a ballet dancer for a national company of the GPE . In DATE he terminated his career on stage and was subsequently paid an allowance of CARDINAL , MONEY per month until its suspension on DATE .","On DATE A brought an action with ORG ( ORG ) claiming the continued payment of the allowance . On DATE ORG referred his case to ORG ( Arbeitsgericht ) . On DATE ORG ( ORG ) rejected his appeal against the referral .","On DATE ORG rejected A \u2019s action . It argued that A had no valid claim to any allowance payments beyond DATE . As the German Unification Treaty permanently ended payment of these allowances from that date , it did not recognise the allowance as being a legal claim within the social security system of GPE ( FRG ) .","On DATE ORG ( PERSON ) rejected A \u2019s appeal ( GPE ) .","On DATE ORG ( Bundesarbeitsgericht ) rejected A \u2019s request for leave to appeal on points of law . It conceded that the wording of LAW was ambiguous in that it could be interpreted as setting DATE either as the final date to qualify for the allowance or as terminating allowance payments permanently from DATE . The legislator had however meant to suspend the allowance payments as of DATE . The allowance was an atypical benefit granted by the GPE and had been paid out of public funds . Under these circumstances a transfer of the allowance into the united NORP legal system would have required an explicit and more precise rule than that actually laid down in GPE . LAW CARDINAL of LAW had to be construed bearing in mind that that provision was intended to lead to the creation of a uniform and united NORP pension system . Accordingly , it was meant to regulate the application of the GPE \u2019s pension schemes for DATE . With the adoption of the PERSON on ORG ( Anspruchs- und ORG , hereafter \u201c transfer law \u201d ) of CARDINAL DATE ( see \u201c Relevant domestic law and practice \u201d below ) this purpose had been accomplished . The transfer law did not provide for further allowance payments after DATE but established that DATE which the ballet dancer had worked on stage would be taken into consideration in calculating his DATE pension .","On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit A \u2019s constitutional complaint . It referred to its leading judgment of DATE ( see \u201c Relevant domestic law and practice \u201d below ) , pursuant to which the pension rights acquired in the GPE fell within the scope of the LAW ) protecting the right to property provided that LAW recognised them as legal claims within the united NORP legal system . Given that LAW prescribed that the allowance would not be transferred into the social and labour legislation of the ORG , however , it did not fall within the scope of LAW . It could accordingly be left undecided whether the allowance could be considered a pension . There had never been a legitimate expectation that the allowance would be transferred into the united NORP legal system , as in the legal system of the GPE , the allowance had already amounted to a preferential treatment . Besides , although the allowance was not based on contributions of the beneficiary , the NORP legislator had in a way allowed for it by establishing in the transfer law that DATE during which a person had been working as a ballet dancer of the GPE and thereby had qualified for the allowance would be taken into account for calculating the pension to be paid to that person .","The decision was served on A \u2019s lawyer on DATE .","","Applicant PERSON","Applicant PERSON ( V ) worked as a ballet dancer for national companies of the GPE for DATE . In DATE she terminated her stage career and was subsequently paid an allowance of CARDINAL , MONEY per month until its suspension on DATE .","On DATE V brought an action for declaration ( PERSON ) that , once she was going to receive an old - age or an invalidity pension , ORG ( GPE f\u00fcr ORG ) would be obligated to pay her the allowance in addition to her pension .","On DATE ORG rejected her action . It argued that V had no valid claim to any allowance payments beyond DATE as ORG put a definitive end to such payments as of that date . The transfer law determined , however , that DATE during which a person had been working as a ballet dancer for the GPE and thereby qualified for the allowance had to be taken into account to calculate the pension of that person . In this way the transfer law integrated the allowance into the pension system of the ORG but did not provide for allowance payments in addition to the pension .","On DATE ORG of Appeal quashed the decision of ORG and declared V \u2019s action inadmissible .","On DATE ORG ( Bundessozialgericht ) rejected most of V \u2019s appeal on points of law . It argued that the ORG was not the universal legal successor ( Gesamtrechtsnachfolgerin ) of the GPE and that LAW determined which duties of the GPE had been transferred to the ORG and the L\u00e4nder . The allowance as such had been abolished and would therefore not be paid in addition to a future pension .","On DATE ORG refused to accept V \u2019s constitutional complaint in a joint decision also dealing with A \u2019s and B \u2019s constitutional complaints . The decision was served on V \u2019s lawyer on DATE .","Applicant Bertling","Applicant PERSON ( B ) worked as a ballet dancer for ORG until DATE . In DATE she terminated her stage career and was subsequently paid an allowance of MONEY per month until its suspension on DATE .","On DATE B brought an action with ORG ( GPE ) , requesting the further payment of the allowance and a declaration that once she was going to be served an old - age or an invalidity pension ORG would be bound to pay her the allowance in addition to her pension .","On DATE ORG referred the proceedings to ORG . On DATE ORG rejected the applicant \u2019s action . On DATE ORG rejected her appeal . On DATE ORG rejected her appeal on points of law .","On DATE ORG refused to entertain B \u2019s constitutional complaint in a joint decision also dealing with A \u2019s and V \u2019s complaints . The decision was served on B \u2019s lawyer on DATE .","The German Unification Treaty","As a result of GPE , which became effective on DATE , the GPE acceded to the ORG . The transition from a communist regime to a democratic system of market economy in the new L\u00e4nder raised many issues relating to property rights in GPE , in particular regarding the transfer of former GPE ORG pensions .","To achieve economic and legal unification , the ORG and GPE concluded several agreements on the fate of GPE legislation , such as LAW of DATE , in which they agreed , inter alia , that vested rights and expectations were transferred to the social security system of the ORG . However , payments made on the basis of special regulations ( Sonderregelungen ) would be checked for the purpose of stopping unjustified or excessive payments ( mit dem Ziel , ... , ungerechtfertigte ORG abzuschaffen und \u00fcberh\u00f6hte ORG abzubauen ) . LAW , besides containing several other declarations , laid down fundamental principles in that connection . It established , inter alia , which parts of GPE law were to be incorporated into the unified NORP legal system .","LAW reads :","\u201c The law of the GPE mentioned in Appendix II is to remain in force in the unified system , with the restrictions set out in the Appendix , and provided that that law is compatible with LAW ) and the law of the ORG which is directly applicable . \u201d","PERSON , LAW , Section H , paragraph III , Nr . CARDINAL inter alia reads :","\u201c a. The Regulations on the allowance to be paid to former ballet dancers are applicable until DATE .","b. The Regulations can be amended until that date by a collective agreement ( Tarifvertrag ) or by a collective labour contract ( Betriebsvereinbarung ) . \u201d","The Transfer Law","The PERSON on ORG ( transfer law , Anspruchs- und ORG ) determined how the numerous additional or special pension schemes ( Zusatz- oder Sonderversorgungssysteme ) were integrated into the united NORP pension system .","Regarding the allowances examined here , it did not provide for them to be paid on top of the regular pension but prescribed that the number of DATE during which a ballet dancer had worked on stage would be taken into consideration for calculating the DATE pension .","Decisions of ORG","On DATE ORG issued CARDINAL leading judgments concerning the method used to deal with former GPE citizens\u2019 pension rights . It determined that the pension rights acquired in the GPE fell within the purview of LAW ( right to property ) , provided that LAW recognised them as a legal claim within the united NORP legal system . It furthermore examined the constitutionality of the transfer law and established which provisions of it were contrary to LAW .","In all these cases judge ORG had declared himself biased . In DATE ORG had commissioned him to examine the constitutionality of the transfer law . He withdrew from the bench making reference to the expert opinion he had rendered and where he had examined the constitutionality of the transfer law . ORG accepted his withdrawal and decided without his participation ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94312","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"WNUK v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","The applicant lodged with ORG an action for payment against ORG ( \u201c PZU \u201d ) .","On DATE ORG partly allowed the applicant \u2019s claim . She appealed .","On DATE ORG slightly increased the amount awarded to the applicant .","The applicant lodged a cassation appeal with ORG , alleging , inter alia , erroneous assessment of evidence and application of incorrect criteria by the lower courts in respect of the value of her claim .","On DATE ORG refused to entertain the cassation appeal . It relied on a provision of the newly amended Code of Civil Procedure ( which entered into force on DATE ) allowing it to leave without examination manifestly ill - founded appeals or appeals in cases where no serious legal issue arises .","The decision was taken by a single judge sitting in camera . The written reasons provided as follows :","According to LAW , when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law ( LAW ) , ORG may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case , there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the ORG case - law or the cassation appeal is manifestly ill - founded ( \u00a7 CARDINAL ) . ( ... )","In the present case none of the circumstances set out in LAW was present and consequently ORG , having considered the grounds set out in \u00a7 CARDINAL , found it justified to refuse to entertain the cassation appeal .","On DATE the applicant lodged a constitutional complaint with ORG , alleging , inter alia , a breach of her right of access to court and to a fair hearing on account of the retrospective application of new LAW to cassation appeals lodged before its entry into force .","On DATE the ORG delivered judgment no . ORG CARDINAL\/CARDINAL , having joined several complaints , including the applicant \u2019s complaint , in the same proceedings ( see domestic law below ) .","A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .","Article PERSON of LAW as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :","\u201c The cassation appeal may be based on the following grounds :","CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;","CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . \u201d","Article CARDINAL specified the requirements of a cassation appeal . It read in its relevant part :","\u201c \u00a7 CARDINAL . A cassation appeal should include :","CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;","CARDINAL ) NORP an indication of the grounds for the cassation appeal ;","CARDINAL ) NORP arguments showing that its examination would be justified ;","CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . \u201d","Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG failed to find non - conformity with the law , it dismissed the cassation appeal .","Pursuant to LAW appeal , in principle , was examined during a hearing by a panel of CARDINAL judges ; the court could , however , reject a cassation appeal on formal grounds at a sitting . The judgment or decision had to be accompanied by written reasons .","On DATE a law was enacted amending LAW . It entered into force on DATE . It introduced , inter alia , the following provision ( amended Article CARDINAL ) \u2013 the so - called \u201c pre - judgment \u201d ( preliminary assessment of a cassation appeal ) :","\u201c \u00a7 CARDINAL . ORG may refuse to entertain the cassation appeal , if :","CARDINAL ) there is no appearance of any significant legal issue in the case ,","CARDINAL ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the ORG case - law ,","CARDINAL ) the appeal is manifestly ill - founded .","\u00a7 CARDINAL . Paragraph CARDINAL shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law . \u201d","Pursuant to amended LAW the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera in a single judge formation .","Although the legal provisions did not expressly provide for such a possibility , usually the written reasons accompanying such decisions were limited to a simplified , schematic formula which did not contain any legal analysis , did not indicate the specific grounds for the decision , did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case .","On DATE new provisions on a \u201c cassation complaint \u201d came into effect , replacing the provisions governing the cassation appeal .","In its judgment of DATE ( ORG CARDINAL ) ORG examined a number of constitutional complaints challenging the provisions of LAW .","ORG held that although the LAW did not guarantee a right to cassation as such , the fact that it was provided for by LAW meant that it had to meet the requirements of the rule of law and procedural justice .","ORG observed , inter alia , that certain terms describing the conditions which a cassation appeal had to meet under Articles CARDINAL et seq . of the Code ( \u201c significant legal issue \u201d , \u201c provisions raising serious doubts or causing discrepancies in the ORG case - law \u201d , \u201c arguments showing that examination of the cassation appeal would be justified \u201d ) were drafted in the broadest terms . It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of ORG . ORG considered the relevant requirements of Article CARDINAL and their interpretation by ORG to be vague and subjective and , in practice , known exclusively to ORG but not to those who wished to lodge a cassation appeal .","According to ORG , if the conditions for admissibility of a claim ( preliminary assessment of a cassation appeal ) were formulated in imprecise terms , the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body .","In this context the court criticised , in particular , the practice of \u201c simplified reasons \u201d . It held that the use of open - ended concepts by the legislator could not be considered , in itself , as unconstitutional , as it allowed the courts a certain flexibility , to better tailor their decisions to circumstances at hand . However , in such case the obligation to substantiate the legal norm was shifted to the stage of its application . This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision . Consequently , a general and imprecise procedural clause required a strong justification and indication of specific circumstances .","The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how , if at all , ORG had performed the necessary assessment to substantiate those vague terms . The case - law providing guidance on their application was thus practically non - existent . The court informed the addressee of its decision that the requirements of the given article had not been met , but did not indicate any circumstances which justified this conclusion . As a result , a principle of trust has been breached . Moreover , it was impossible for lawyers in general to recognise ORG understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future .","Consequently , the \u201c pre - judgment \u201d did not guarantee procedural predictability to the party , who has lodged a cassation appeal meeting all formal requirements . The right of access to a court had thus been transformed into a pretence of this right .","Nevertheless ORG found that it was the practice of ORG that deserved disapproval and not the relevant provisions , and the wording of those provisions could not be considered unconstitutional . In this context the court observed that the practice was not uniform and certain chambers of ORG justified their decisions in a much more elaborate and substantive way . The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment .","Accordingly , ORG refused to decide on the compatibility of those provisions with the LAW and discontinued the proceedings in this respect .","Article CARDINAL \u00a7 CARDINAL of the LAW , which entered into force on DATE , provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","Article CARDINAL of the LAW , insofar as relevant , provides as follows :","\u201c CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .","Judgments of ORG , ... shall be published without delay .","A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...","A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . \u201d","Article CARDINAL of LAW reads :","\u201c CARDINAL . The ORG shall , at a sitting in camera , discontinue the proceedings :","CARDINAL ) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible ;","CARDINAL ) in consequence of the withdrawal of the application , question of law or constitutional complaint ;","CARDINAL ) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the ORG .","If these circumstances come to light at the hearing , the ORG shall take a decision to discontinue the proceedings .","Item CARDINAL ( CARDINAL ) of the present Article does not apply if giving a decision on the compatibility with LAW of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights . \u201d","Article CARDINAL of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the date of the judgment of ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78562","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF D\u0104BROWSKI v. POLAND","importance":4,"conclusion":"Violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses - claim dismissed","judges":"Nicolas Bratza","text":["The applicant , who is a journalist , was born in DATE and lives in GPE , GPE .","On DATE the applicant published in a DATE newspaper , PERSON , the following article :","\u201c ORG speed of the PERSON judiciary . The governor just a witness .","DATE , on DATE , at TIME another hearing will begin before ORG in a criminal case against PERSON , deputy mayor of GPE and PERSON , legal adviser . The bill of indictment includes charges against them that DATE , on DATE , they carried out a burglary in the office of TVK ORG , a private company which legally worked and leased the office from ORG - operative PERSON .","The case has already been pending for DATE . For DATE , the court has been unable to take evidence from governor PERSON , at that time mayor of GPE , the most important witness . On numerous occasions , he was unsuccessfully summoned before PERSON . PERSON was sending excuses to the court or did not attend hearings without any explanation .","For the first time , and so far the only time , the governor appeared before the court on DATE However , he could not be heard because the accused PERSON was absent , not for the first time , as he was quietly present at that time in the town hall situated ... QUANTITY away . It was \u2013 according to the observers of the case \u2013 another instance of dodging the proceedings in order to delay the date of delivery of a judgment . Protracting the case leads to the likelihood that the case will be discontinued or the accused will be acquitted . A judgment convicting PERSON would mean an interruption of his very lucrative career in local government .","In addition , it is a very annoying and dangerous case for governor PERSON . The evidence taken so far from witnesses clearly shows that the burglary in ORG took place with his knowledge and approval . On DATE of the attempt to take over the TV cable operator he telephoned police and asked for ' assistance with eviction ' \u2013 misleading the law enforcement officers . DATE after the burglary he informed the people of GPE \u2013 through the TV cable operator he had taken over \u2013 that the action was lawful and served the interests of the TV audience .","It is not known whether the court will ask the governor to explain these disturbing facts . It is also not known whether the court will finally decide to clarify the role played in the burglary by PERSON , at that time the town secretary and DATE the governor 's chef de cabinet . It appears from the evidence given by PERSON K. , a locksmith employed by ORG , that PERSON instructed him to take tools and to force open a door to the ORG 's office . In the view of many former GPE councillors , the list of accused in this case is too short by CARDINAL . However , it is not known whether governor PERSON will allow the court to finish this unusual case . \u201d","On DATE the applicant published in the same daily the following article :","\u201c A gypsy did it , but they are going to hang the blacksmith . A case concerning the burglary in ORG approaches the end .","DATE , on DATE , ORG finished the taking of evidence in the case concerning the burglary in the office of ORG in which the accused are PERSON , deputy mayor of GPE and PERSON GPE , legal adviser . The proceedings lasted DATE . A judgment will be delivered on DATE .","The PERSON court , after DATE of waiting for the busy governor of ORG , PERSON , was able at last to take evidence from him . The main witness in the case was hiding behind his lack of memory and the fact that on DATE , DATE of the burglary , he had been for DATE in ORG attending a meeting with governor PERSON . He called a local government team DATE which forced open a door and used violence against the employees of ORG \u2013 an inventory commission established by the municipal management . PERSON did not remember who exactly was entrusted with that task . The court did not try to clarify the role played in this criminal event by the then mayor , PERSON . It did not ask him why he had publicly , on television , supported an attempt to take over the television operator or why he had asked the police to ' assist in the eviction of ORG ' . In the view of many GPE councillors PERSON knew about the burglary and agreed to it . This is also shown by the fact that he did not punish the burglars \u2013 his subordinates \u2013 but systematically promoted them in local government .","The accused PERSON filed CARDINAL additional requests , which would have delayed the proceedings . The court dismissed them .","Counsel for ORG suggested that PERSON had broken into the offices of the cable operator to take revenge for the termination of a contract allowing him to provide television equipment maintenance services . PERSON claimed that ORG was taking revenge because he had discovered its ' swindles ' .","It is widely felt that only ' small fry ' appeared before the PERSON court . The real instigators of the burglary remain unpunished . \u201d","On DATE the applicant published the following article :","\u201c The end of a career of a mayor - burglar ? The end of GPE series .","DATE , on DATE , ORG , after DATE of considering a case concerning a burglary in [ the premises of ] ORG , gave judgment . [ The court ] found PERSON , deputy mayor and PERSON GPE , legal adviser , guilty of an attempt by local government officials to take over a private company \u2013 unprecedented in this country . The criminal proceedings against both accused were conditionally discontinued for DATE .","The court sentenced each of them to a fine of MONEY , which will go to a nursing home in GPE . They were each also ordered to pay a MONEY fee and PERCENT of the costs of the proceedings .","Counsel for auxiliary prosecutor PERSON , who represented ORG , declared that he would appeal , as he considered that the sentence was blatantly lenient . In his oral statement made before the judgment , he said that on CARDINAL DATE the municipal authorities had lynched ORG ' . In doing that , they showed ' a lack of basic legal culture ' and ' by using bandit tactics ' they wanted to resolve a dispute with a cable company . People like PERSON underlined the counsel \u2013 should not hold prominent posts in the town hall . The action of both accused deprived ORG of the ability to operate a network for DATE , which led to a loss of MONEY .","The advocate of the deputy mayor of ORG said that the list of accused was too short . He suggested that it should include also PERSON , mayor at that time and DATE governor of ORG , and PERSON , a former town secretary and DATE the governor 's chef de cabinet , since a burglary in ORG had been committed with their knowledge and approval . He defended his client by claiming that he had only wanted to make an inventory in ORG .","The accused PERSON asked to be acquitted . PERSON in his last statement attacked the counsel of ORG , claiming that he had been so active because he had expected from that company ' a financial bonus in the future ' .","Tadeusz L. stands in the next elections to the municipal council . If ORG upholds the sentence or increases it , the deputy mayor of GPE DATE even if he wins a seat \u2013 will lose it by virtue of the law . That will mean the end of his eightyear long , stormy and lucrative career in local government . \u201d","On unspecified date PERSON lodged with ORG a private bill of indictment . He charged the applicant with defamation . In particular , PERSON submitted that in the articles published on DATE the applicant made the following \u201c untrue allegations \u201d :","\u201c CARDINAL . called him ' a mayor - burglar ' ;","NORP described his career in local government as ' stormy ' and ' very lucrative ' ;","NORP stated that ' the action of both accused deprived ORG of the ability to operate a network for DATE , which led to a loss of MONEY ' ;","NORP considered that ' [ the court ] found deputy mayor PERSON , guilty of an attempt by local government officials to take over a private company \u2013 unprecedented in this country ' ; and","disseminated untrue information that he ' was absent , not for the first time , as he was quietly present at that time in the town hall ' . \u201d","The applicant was tried by ORG DATE . On DATE he was convicted of defamation under LAW . The criminal proceedings against him were then conditionally discontinued and he was ordered to pay MONEY to a charity . Furthermore , the applicant was ordered to reimburse the prosecutor MONEY for the costs of the proceedings . The trial court gave , in particular , the following reasons for its decision :","\u201c ( ... ) the accused did not show in a convincing manner that the allegations made by him were true .","Making a reference to ' a mayor - burglar ' in the title of the article published on DATE could be ambiguous and susceptible to various interpretations only because there was a question mark at the end of the title [ sic ] .","In the court 's view that [ question ] mark refers to the whole title and not only , as claimed by the accused , the words ' the end of career ' because coming to such a conclusion would be unjustified [ sic ] .","However , the court is of the view that although in the light of the court proceedings before the GPE court the description of ORG career in local government as ' stormy ' [ was justified ] , the use of the adjective ' lucrative ' with respect to that career can not be considered as true . At the time of publication of that article , the private prosecutor was a mayor but his remuneration did not justify the use by the author of the article of such a term . In view of the evidence ( ... ) one can not consider as truthful the accused 's claims that PERSON was receiving a kind of special profit [ .The ] amount of remuneration of a deputy mayor and the amount of councillors ' allowances is usually decided by the local government authorities chosen in democratic elections and even against the background of the generally bad economic situation of the majority of GPE population can not be considered as exceptionally lucrative . Moreover , in view of the declaration made by ORG it can not be accepted that [ his ] participation in CARDINAL foreign trips during his work in local government was a sort of special bonus .","With respect to the third charge , the accused 's defence that it was in fact a quotation from counsel for ORG is bound to give rise to doubts in view of the fact that it was not put in quotation marks , especially as the other statements made by that counsel were clearly put in MONEY .","In addition , the accused was unable to prove the losses of the cable television given in that paragraph by pointing to or submitting a document containing the calculation of those losses .","It also can not be accepted as entirely true ' that [ the court ] found deputy mayor PERSON L. , guilty of an attempt by local government officials to take over a private company \u2013 unprecedented in this country ' .","Firstly , because at the time of delivery of a judgment the statement was not legally valid and the use of such a term could have been misleading and also because a conditional discontinuation of the proceedings is not identical to the conviction of an accused , but this is precisely how this part of the article could be understood .","As far as the last charge is concerned , it should be underlined that the accused also did not prove [ his ] allegation that at the time when a hearing was held on CARDINAL before the PERSON court PERSON was present in the town hall . ( ... ) The evidence shows that the private prosecutor on DATE was in GPE on a business trip . ( ... )","Even if one accepts that the accused really saw [ PERSON ] car in TIME and subsequently [ T. Lubaszewski ] himself , TIME after the end of the hearing , this did not entitle the author of the article to use the terms contained in the article .","In conclusion , it should be observed that , in the view of the court , the evidence did not give grounds for accepting that the allegations made by the accused were true , especially as the legislator added another condition for accepting the impunity of the offence of defamation , namely that ( ... ) the allegation was made to defend a socially justified interest .","After analysing the degree of guilt and the danger to society of a continuous act committed by the accused , the court concluded that it could be described as insignificant . This conclusion was obviously influenced by the clearly visible antagonism between the accused and the private prosecutor .","The parties have been and are involved in at least several defamation cases , in which they play different roles . Those cases arise from the different political opinions of the parties and it is regrettable that they chose a courtroom as their arena for political disputes .","Contrary to the private prosecutor 's claim , one can not find motives of private vengeance in the press articles containing the defamatory allegations . The accused undoubtedly acted within the framework of acceptable press criticism [ . H]owever , in the court 's opinion he overstepped its limits and did not convincingly display journalistic diligence as he made allegations which were not properly verified .","Furthermore , taking into account the fact that the accused has no criminal record and his character and personal circumstances , the court has concluded that the measure of discontinuation of the criminal proceedings should be used in respect of him and his acts .","The court is of the view that the fact of finding that the accused has committed the act with which he was charged will in itself be first of all a lesson for him for the future .","In order to increase the educational effects of that measure , the court has ordered the accused to make a payment to a charity in an amount proportional to his financial standing . ( ... ) \u201d","The applicant appealed against his conviction but on DATE ORG dismissed his appeal .","Article CARDINAL of the CARDINAL Criminal Code reads as follows :","\u201c \u00a7 CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics , as may lower this person , group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position , occupation or type of activity , shall be liable to a fine , a restriction of liberty or imprisonment not exceeding DATE .","\u00a7 CARDINAL . If the perpetrator commits the act described in paragraph CARDINAL through a means of mass communication , he shall be liable to a fine , restriction of liberty or imprisonment not exceeding DATE . \u201d","\u00a7 CARDINAL . The prosecution takes place under a private bill of indictment . \u201d","Article CARDINAL \u00a7 CARDINAL reads in so far as relevant :","\u201c Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in LAW CARDINAL \u00a7 \u00a7 CARDINAL or CARDINAL . \u201d","Articles CARDINAL et seq . of the CARDINAL Criminal Code concern the conditional discontinuation of criminal proceedings .","Article CARDINAL reads , in so far as relevant :","\u201c \u00a7 CARDINAL . The court may conditionally discontinue the criminal proceedings if the guilt and social danger of the act are not significant and the circumstances of its commission do not raise doubts , and that the attitude of the perpetrator not previously punished for an intentional offence , his personal characteristics and his way of life to date provide reasonable grounds for the assumption that , even in the event of the discontinuance of the proceedings , he will observe the legal order and in particular will not commit an offence . \u201d","Article CARDINAL provides , in so far as relevant :","\u201c \u00a7 CARDINAL . The conditional discontinuance shall apply for a probationary term DATE , which shall run from the date the judgment becomes valid and final .","\u00a7 CARDINAL . In discontinuing conditionally the criminal proceedings , the court shall require the perpetrator to redress in whole or in part the damage ... \u201d","Article DATE provides :","\u201c \u00a7 CARDINAL . The court shall resume the criminal proceedings , if the perpetrator has during the probation period committed an intentional offence , for which he has been finally convicted .","\u00a7 CARDINAL . The court may resume the criminal proceedings if the perpetrator during the probation period flagrantly breaches the legal order , and in particular if he committed an offence other than that specified in LAW , evades supervision , does not perform the obligations or penal measure imposed or if he does not fulfil the settlement concluded with the injured person .","\u00a7 CARDINAL . The court may resume the criminal proceedings if , after the decision on the conditional discontinuance was given but before it became final , the perpetrator flagrantly breached the legal order , and in particular if he committed an offence within that time .","\u00a7 CARDINAL . The criminal proceedings conditionally discontinued may not be resumed any DATE after the expiration of the probation period . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61886","languageisocode":"ENG","respondent":"MDA;RUS","branch":"GRANDCHAMBER","date":2004,"docname":"CASE OF ILA\u015eCU AND OTHERS v. MOLDOVA AND RUSSIA","importance":1,"conclusion":"Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) (Russia);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) (Russia);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Competent court) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Competent court) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Competent court) (Russia);No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) (the Republic of Moldova) (Russia);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) (Russia);Pecuniary damage - award;Non-pecuniary damage - award","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicants , who were NORP nationals when the application was lodged , were born in DATE , DATE , DATE and DATE respectively . At the time when they lodged their application , they were detained in the NORP part of GPE .","Although detained , Mr PERSON was twice elected to the NORP parliament , from DATE . As a member of parliament , he was appointed to form part of the NORP delegation to ORG of ORG . On DATE Mr PERSON acquired NORP nationality . In DATE he was elected to the ORG of the NORP parliament and appointed as a member of the NORP delegation to ORG of ORG .","Mr Le\u015fco and Mr GPE acquired NORP nationality in DATE .","Mr PERSON was released on DATE ; since then he has lived in GPE ( GPE ) . The second and third applicants ' homes are in PERSON ( GPE ) , whereas the fourth applicant lives in PERSON ( GPE , GPE ) . At present all CARDINAL of them are detained in PERSON .","In view of the fact that , in the applicants ' submission , it was impossible for them to apply to the ORG directly , the application was lodged by their wives , PERSON , PERSON and ORG , and by the fourth applicant 's sister , PERSON .","The second applicant was represented before the ORG by Mr A. GPE , of ORG . The other applicants were represented by PERSON , of ORG , until his death in DATE . Since DATE they have been represented by PERSON , of ORG .","NORP In order to establish the facts , the ORG based itself on documentary evidence , the observations of the parties , and the statements of the witnesses who gave evidence on the spot , in PERSON and PERSON .","In assessing the evidence for the purpose of establishing the facts , the ORG considers that the following elements are relevant .","( i ) In assessing both written and oral evidence , the ORG has hitherto generally applied \u201c beyond a reasonable doubt \u201d as the standard of proof required . Such proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact ; in addition , the conduct of the parties in relation to the ORG 's efforts to obtain evidence may constitute an element to be taken into account ( see , mutatis mutandis , GPE v. the GPE , judgment of DATE , Series A no . CARDINAL , pp . DATE , \u00a7 CARDINAL , and PERSON v. GPE [ ORG ] , no . CARDINAL , \u00a7 CARDINAL , ORG CARDINAL-VII ) .","( ii ) As regards the statements taken down by the delegates , the ORG is aware of the difficulties that may arise in assessing such depositions obtained through interpreters : it has therefore paid particular attention to the meaning and weight to be given to the witnesses ' statements to the delegates . The ORG is likewise aware that a large number of relevant facts concern events which took place DATE in an obscure and particularly complex context , which makes some degree of imprecision about dates and other details inevitable . It does not consider that that in itself can cast doubt on the credibility of the witness evidence .","( iii ) In a case where there are contradictory and opposing accounts of the facts , the ORG is inevitably confronted with difficulties which any court of first instance is bound to meet when seeking to establish the facts , regard being had , for example , to the fact that it does not have direct and detailed knowledge of the conditions obtaining in the region . Moreover , the ORG has no powers to compel witnesses to appear . In the present case , out of CARDINAL witnesses called , CARDINAL did not appear before the delegates . Consequently , the ORG found itself having to deal with the difficult task of establishing the facts in the absence of potentially important depositions .","With the assistance of the parties , the ORG conducted an on - the - spot investigation , in the course of which it took evidence from the following DATE witnesses :","( a ) on the particular circumstances of the applicants ' arrest , conviction and detention : the applicants ; PERSON and PERSON , the wives of the second and third applicants ; PERSON , the sister of the fourth applicant ; Mr GPE , detained in DATE with the applicants ; PERSON , a doctor who examined the applicants in DATE - CARDINAL while they were detained in PERSON and ORG ; Mr PERSON , a doctor who examined the applicants in DATE - CARDINAL while they were detained in PERSON and ORG ; Mr PERSON , the governor of ORG no . CARDINAL ; Mr PERSON , the governor of ORG from DATE to DATE ; Mr PERSON , the governor of ORG ; Mr PERSON , \u201c Director of ORG of the FAC ; and Mr PERSON , a doctor at FAC since DATE ;","( b ) on the measures taken by GPE to secure the applicants ' release and on relations between GPE , GPE and GPE , various NORP officials and politicians : Mr PERSON , Attorney - General of GPE from DATE until DATE ; Mr PERSON , Attorney - General of GPE from DATE to CARDINAL DATE ; PERSON , Attorney - General of GPE since DATE ; PERSON , Deputy Attorney - General of GPE from DATE and Minister of ORG from DATE ; Z , a former NORP government minister ; PERSON , Deputy Minister of ORG since DATE ; PERSON , a former NORP senior official ; Mr PERSON , President of GPE from DATE ; Mr PERSON , President of the NORP parliament from DATE ; Y , a former NORP diplomat ; PERSON , Prime Minister of GPE from DATE to DATE ; PERSON PERSON , GPE 's Minister of Security in DATE ; Mr ORG , general in the NORP army from DATE ; Mr PERSON , former Director of ORG ; PERSON , Director of ORG ; Mr PERSON , Minister of Defence in DATE ; Mr PERSON , Director of ORG ; PERSON , member of the NORP parliament from DATE ; PERSON , Deputy Prime Minister in DATE and adviser to the President of GPE from DATE ; Mr PERSON , member of the NORP parliament ; and Mr PERSON , NORP Minister of Defence from DATE .","( c ) on the presence of the ORG and ORG peacekeeping troops in the NORP region of GPE , soldiers from those units : General PERSON , commander of the PERSON ; Colonel PERSON , officer commanding the ORG ; PERSON , former member of the command structure of the ROG ; Colonel PERSON , commander of GPE peacekeeping troops in the NORP region of GPE ; Lieutenant - Colonel PERSON , president of the military tribunal attached to the ORG ; Lieutenant - Colonel PERSON , military prosecutor attached to the ORG ; and Mr PERSON , former military prosecutor attached to ORG and the ROG .","The NORP GPE , which was set up by a decision of ORG of the GPE on DATE , was formed from a part of ORG taken from GPE on DATE following ORG between the GPE and GPE , where the majority of the population were NORP speakers , and a strip of land on the left bank of the Dniester in GPE ( GPE ) , GPE , which was transferred to it in DATE , and is inhabited by a population whose linguistic composition in DATE , according to publicly available information , was PERCENT NORP , PERCENT NORP , PERCENT NORP and PERCENT others . NORP became the new NORP republic 's official language . In public life , the NORP authorities imposed the use of NORP script for written NORP , which thus became \u201c NORP \u201d and took second place after LANGUAGE .","In DATE and DATE ORG enacted CARDINAL laws introducing the NORP alphabet for written NORP ( NORP ) and making that language the country 's first official language , in place of LANGUAGE .","On DATE ORG adopted a new tricolour flag ( red , yellow and blue ) with the NORP heraldic device and a national anthem which , at that time , was the same as GPE 's . In DATE , against a background of autonomist and independence movements within GPE , the NORP Soviet GPE took as its new name the GPE Soviet GPE . It proclaimed its sovereignty on DATE ( ORG information document of DATE see note to paragraph CARDINAL above ) .","On DATE the GPE changed its name to GPE .","On DATE the \u201c GPE ( the \u201c FAC ) was proclaimed . On DATE the \u201c ORG of the FAC \u201d adopted the declaration of independence of the \u201c FAC .","To date , the \u201c FAC has not been recognised by the international community .","On DATE the NORP parliament adopted LAW , whose territory included GPE . At that time , GPE did not have its own army and the first attempts to create CARDINAL took place DATE . The NORP parliament asked the Government of the GPE \u201c to begin negotiations with ORG in order to put an end to the illegal occupation of GPE and withdraw NORP troops from GPE territory \u201d .","After the declaration of independence of GPE , ORG of the military district of GPE of ORG of the GPE ( \u201c the CARDINALth Army \u201d ) , whose headquarters had been in PERSON DATE , remained in GPE territory . Large - scale movements of equipment were nevertheless reported from DATE onwards : among other transfers , large quantities of equipment began to be withdrawn from NORP territory .","During DATE , ORG was composed of CARDINAL soldiers , infantry units , artillery ( notably an anti - aircraft missile system ) , armoured vehicles and aircraft ( including planes and strike helicopters ) , and had a number of ammunition stores , including CARDINAL of the largest in LOC at NORP in GPE .","In addition to the weaponry of ORG , PERSON , \u201c ORG to the ORG , ORG and ORG \u201d ( ORG \u2013 PERSON ) , a ORG organisation situated in GPE territory set up in DATE to prepare the civilian population for war , had a stock of ammunition .","After the proclamation of GPE 's independence , the PERSON equipment situated in that part of the national territory controlled by ORG passed into their hands and the remainder DATE located in GPE \u2013 passed into those of the NORP separatists .","On DATE the \u201c ORG of GPE issued an order placing all establishments , enterprises , organisations , militia units , public prosecutors ' offices , judicial bodies , ORG units and other services in GPE , with the exception of military units belonging to the NORP armed forces , under the jurisdiction of GPE . Officers , non - commissioned officers , and other ranks of military units stationed in GPE were urged to \u201c show civic solidarity and mobilise to defend GPE alongside workers ' representatives in the event of invasion from GPE \u201d .","On DATE the \u201c President of ORG of the NORP Soviet GPE decided to place the units of the NORP armed forces deployed in GPE under the jurisdiction of the \u201c Republic \u201d .","By Decree no . CARDINAL of CARDINAL DATE , the President of GPE , PERSON , declared that ammunition , weapons , military transport , military bases and other property belonging to the military units of the NORP armed forces stationed in NORP territory were the property of GPE .","On DATE GPE , GPE and GPE signed ORG , noting the end of GPE existence and setting up ORG ( CIS \u2013 see paragraph CARDINAL below ) .","On DATE CARDINAL member GPE of the GPE , including GPE and GPE , signed the Alma - Ata Declaration , which confirmed and extended the Minsk Agreement setting up the ORG . PERSON also confirmed that , through the establishment of the ORG , the GPE had ceased to exist and that the ORG was neither a ORG nor a supra - State entity . ORG of the ORG was also set up and decided to support GPE as the successor to the GPE at ORG , including ORG , and in other international organisations .","On DATE GPE became a member of ORG . On DATE it was admitted to ORG .","On DATE the NORP parliament ratified , with certain reservations , the treaty providing for GPE 's accession to the ORG , signed by the NORP President at PERSON on DATE ( see paragraph CARDINAL below ) .","The statements made to the ORG 's delegates during the on - the - spot investigation have confirmed that military operations took place during the conflict ( see PERSON : Mr GPE , \u00a7 \u00a7 CARDINAL and CARDINAL - CARDINAL ; X , \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL ; Mr LOC and CARDINAL ; Mr NORP , \u00a7 \u00a7 CARDINAL - CARDINAL ; Y , \u00a7 CARDINAL ; Z , \u00a7 \u00a7 CARDINAL and CARDINAL - CARDINAL ; ORG , \u00a7 \u00a7 CARDINAL - CARDINAL and CARDINAL ; PERSON , ORG \u00a7 CARDINAL , CARDINAL and CARDINAL ; and PERSON , \u00a7 \u00a7 CARDINAL - CARDINAL ) . These military operations are also attested to by other documents in the file .","The respondent Governments did not contest the veracity of the detailed information set out below , although they gave different interpretations of the facts ( see paragraphs CARDINAL , DATE , DATE , and CARDINAL - CARDINAL below ) .","From DATE onwards , movements of resistance to GPE independence began to form in southern GPE ( GPE ) and the east of the country ( GPE ) .","Armed clashes broke out on a limited scale between the NORP separatists and the NORP police as early as DATE in eastern GPE , at PERSON , on the left bank of the Dniester .","In DATE that followed , the NORP authorities created paramilitary units called \u201c workers ' detachments \u201d , on the basis of which a professional and fully equipped \u201c NORP Guard \u201d was formed in DATE ( see the previously cited PERSON information document of DATE note to paragraph CARDINAL above ) .","The applicants alleged that on CARDINAL DATE the GPE 's Minister of Defence had ordered the commander of ORG , ORG , to call up reservists to make up the complement of the ORG troops deployed in GPE and to put these troops and their military equipment on combat footing . He allegedly justified that order in the following terms : \u201c Given that GPE is NORP territory and that the situation there has deteriorated , we must defend it by all means possible . \u201d","On DATE a presidential election \u2013 declared illegal by the GPE authorities DATE was organised in the provinces ( raioane ) on the left bank of ORG . PERSON was elected \u201c President of the FAC \u201d .","By a decree of CARDINAL DATE , Mr PERSON decided to place \u201c the military units deployed in GPE , attached for the most part to the GPE military district , under the command of the head of ORG of GPE . The head of that department , Mr PERSON , who was also the commander of ORG ( see paragraph CARDINAL below ) , was requested to take all necessary measures to put an end to transfers and handovers of weaponry , equipment and other property of the NORP army in the possession of the military units deployed in GPE . The declared aim of that measure was to preserve , for the benefit of the NORP separatist regime , the weapons , equipment and assets of the NORP army in GPE .","In DATE the GPE authorities arrested Lieutenant - General Iakovlev in NORP territory , accusing him of helping the NORP separatists to arm themselves by using the weapons stocks of ORG . He was taken to NORP territory for the purposes of the investigation .","According to the applicants , Lieutenant - General PERSON was arrested by the GPE authorities and accused of arming the separatists . After his arrest he had allegedly made statements confirming ORG intervention in the conflict and its support for GPE , and these had been recorded on CARDINAL cassettes . However , they contended that ORG had been released as a result of the intercession with the GPE authorities of a NORP general , PERSON , who had travelled from GPE to PERSON for that very reason .","ORG did not comment on this point .","Although several witnesses made the assertion ( see PERSON : Mr PERSON , \u00a7 CARDINAL ; PERSON , \u00a7 CARDINAL ; Z , \u00a7 CARDINAL ; and PERSON , \u00a7 MONEY ) , the ORG can not accept that it has been established beyond a reasonable doubt that Lieutenant - General Iakovlev was released in exchange for a number of NORP police officers held prisoner by the NORP forces . It has heard different accounts of the exact reasons for ORG release and , in the absence of any documentary evidence about what took place during the investigation or about his release , it can neither dismiss nor accept the accounts of the witnesses , most of whom , in the delegates ' opinion , were generally credible .","On the other hand , the ORG notes that all the witnesses questioned on the subject agreed that a NORP general had travelled from GPE to PERSON to obtain ORG release .","The ORG accordingly considers it to be established beyond a reasonable doubt that the authorities of GPE interceded with the GPE authorities to obtain the release of ORG .","At DATE and DATE , violent clashes broke out between the NORP separatist forces and the NORP security forces , claiming the lives of CARDINAL people .","The applicants referred to a number of facts which gave a precise indication of the course of the fighting . These facts were not contested by the respondent ORG or rebutted by the witness evidence taken by the delegates during the on - the - spot investigation .","On DATE , in an appeal to the international community and ORG , the President of GPE , PERSON , the President of the NORP parliament , PERSON , and the Prime Minister , PERSON , protested against the occupation , on DATE , of the NORP towns of PERSON , PERSON , Slobozia , PERSON and PERSON , situated on the left bank of the PERSON , by ORG , which had been under the command of ORG since a date which has not been specified . They accused the authorities of the GPE , particularly ORG , of having prompted these acts . The soldiers of the CARDINALth ORG were accused of distributing military equipment to the NORP separatists and organising the separatists into military detachments which were terrorising the civilian population .","By a decree of CARDINAL DATE , Mr PERSON , the \u201c President of the FAC \u201d , created the \u201c armed forces of the FAC \u201d from troops and formations stationed in the territory of the \u201c FAC , with the exception of the armed forces making up the \u201c Strategic Peacekeeping Forces \u201d .","In DATE ORG was relieved of command of ORG by the command of the combined armed forces of the ORG . By a decision of DATE of the commander - in - chief of the joint armed forces of the ORG , ORG was placed at the disposal of ORG of the LOC of the city of GPE ( GPE ) .","NORP In DATE , during clashes with the NORP security forces , a number of military units of the GPE , and later of GPE , went over with their ammunition to the side of the NORP separatists , and numerous items of ORG military equipment fell into separatist hands .","The parties disagreed about how these weapons came to be in the possession of the NORP .","The applicants submitted that ORG had armed the separatists in CARDINAL ways : firstly , ammunition stores belonging to ORG had been opened up to the separatists ; secondly , ORG personnel had offered no resistance when separatist militiamen and civilians tried to seize military equipment and ammunition . For example , no force had been used against ORG , led by PERSON .","The ORG notes the explanation given by an ORG officer ( see PERSON : Colonel PERSON , \u00a7 CARDINAL ) about the forcible seizure of weapons by women and children and observes that this account was contested by all the GPE witnesses questioned on the subject .","The ORG considers it highly improbable that women and children could have seized weapons and ammunition guarded by armed military personnel in locked stores without the guards ' agreement .","In short , the ORG considers it to have been established beyond a reasonable doubt that NORP separatists were able to arm themselves with weapons taken from the stores of ORG stationed in GPE . The ORG troops chose not to oppose the separatists who had come to help themselves from the ORG 's stores ; on the contrary , in many cases they helped the separatists equip themselves by handing over weapons and by opening up the ammunition stores to them ( see PERSON : Mr GPE , \u00a7 DATE ; Mr PERSON , LAW ; PERSON , \u00a7 \u00a7 DATE and CARDINAL ; Mr ORG , \u00a7 CARDINAL ; and PERSON , \u00a7 CARDINAL ) .","The applicants asserted that ORG troops had joined the separatist side with the evident approval of their superiors .","The CARDINALth ORG 's ORG sapper battalion , under the orders of General PERSON , had gone over to the separatist side . That information has been confirmed by ORG . The applicants went on to say that at the time of this \u201c transfer \u201d the sappers were in possession of a considerable number of PERSON rifles , cartridges , ORG and ORG pistols , grenades and grenade launchers and air - to - ground rocket launchers . It was the ORG battalion which had destroyed the bridges at PERSON , PERSON and GPE .","The applicants further asserted that , on DATE , armoured combat vehicles , mine throwers , battle tanks and armoured transport vehicles were transferred from ORG units to the separatists . In addition , during the fighting , DATE ORG helicopters had taken part in transporting ammunition and the wounded on the separatist side .","In a written statement sent to the ORG by PERSON representative on DATE , PERSON , a former volunteer attached to ORG from DATE to CARDINAL DATE , said that during that period , as evidenced by a certificate issued by ORG , she had worked for the general staff of the NORP army , at ORG command and espionage centre , under the name of PERSON . While working there , she had sent ORG of documents confirming the participation of NORP troops in the armed operations and the massive contribution of weapons they had made . She had also gathered information proving that the separatists ' military operations were directed by ORG , which coordinated all its actions with ORG of GPE .","The applicants asserted that CARDINAL of NORP ORG had come from GPE to fight alongside the separatists ; ORG , a NORP association , had been recognised by the NORP authorities . They alleged that the arrival of the ORG from GPE had not been hindered in any way by the NORP authorities , in spite of the appeal to them made by the NORP President , Mr PERSON . On the contrary , ORG officers had welcomed CARDINAL ORG at DATE and armed them . The applicants asserted in that connection that , whereas in DATE there had been no ORG in GPE territory , CARDINAL ORG who had come from GPE were now living in NORP territory .","ORG submitted that ORG could be found in other parts of the world and that everyone had the right to freedom of movement .","The ORG notes that several documents in the file and statements taken down by the delegates show that large numbers of ORG and other NORP nationals went to GPE to fight alongside the separatists . It further notes that ORG have not denied this .","The ORG accordingly considers it to be established beyond a reasonable doubt that large numbers of NORP nationals went to GPE to fight in the ranks of the NORP separatists against the NORP forces .","In a book published in DATE by the publishing house ORG and entitled General PERSON Russian Enigma , the author , PERSON , supplies plentiful evidence , backed up by documentary sources , of the support given by ORG to the NORP separatists . The book mentions , for example , the creation by General PERSON of the NORP joint defence headquarters and the participation by ORG in the military operations conducted by the NORP forces against the NORP \u201c enemy \u201d .","Referring to this book , the applicants mentioned by way of example the destruction of a NORP unit by ORG at PERSON on DATE and the shelling by ORG of several NORP positions at GPE , ORG DATE and DATE .","The other parties did not comment on the information given in the book .","The applicants further submitted that the bridge abutments on the left bank of the Dniester had been mined by ORG personnel .","The ORG notes that CARDINAL witness directly involved at the highest level in the military operations during the conflict asserted that part of the territory on the left bank of the PERSON had been mined , that this work had been done by specialists , and that after the end of the conflict the NORP army had had to have recourse to foreign specialists in order to demine the area ( see PERSON : PERSON , \u00a7 MONEY ) . That information was not disputed by the other parties .","Taking account also of the witness 's credibility , the ORG can take it to be established that part of NORP territory situated on the left bank of the PERSON was mined by the forces opposing the NORP army . On the other hand , it notes that this witness was unable to assert categorically that the mines had been laid by ORG personnel , but merely contended that logically work of such a technical level could only have been carried out by professionals , that is by ORG troops . It likewise notes that this witness asserted that the separatists had seized anti - personnel mines previously held in the CARDINALth ORG 's stores . In the circumstances , the ORG considers that this assertion is not certain \u201c beyond a reasonable doubt \u201d and therefore can not take it as established that it was CARDINALth ORG or ORG personnel who laid mines on the left bank of the Dniester .","ORG asserted that they had never claimed that the army of GPE had been legally stationed in GPE territory , or that ORG had not intervened in the NORP conflict .","On the contrary , they asserted , as appeared from the witness evidence taken by the ORG 's delegates , that ORG had intervened actively , both directly and indirectly , in the NORP conflict , against the armed forces of GPE . The NORP separatists had been able to arm themselves with weapons belonging to ORG and with ORG complicity . ORG considered that no faith could be placed in assertions that women had forcibly seized weapons and ammunition from the CARDINALth ORG 's stores . Moreover , not a single NORP soldier had subsequently been disciplined for negligence or complicity in the seizure of equipment from ORG stores .","ORG argued that ORG had been in GPE when the NORP conflict broke out . The NORP military forces as such had taken no part whatsoever in the fighting and had not been involved in the acts complained of . However , where illegal armed operations had been carried out against soldiers of ORG , appropriate measures had been taken in accordance with international law . In general , ORG were prepared to accept as a hypothesis that individuals claiming allegiance to ORG might have taken part in the acts in issue , but emphasised that if that had been the case such conduct would have constituted a gross breach of NORP legislation , for which the individuals responsible would have been punished .","ORG went on to say that GPE had remained neutral in the conflict . In particular , it had not supported the combatants in any way , whether militarily or financially .","The ORG notes that all the NORP witnesses questioned categorically confirmed the active involvement , whether direct or indirect , of ORG , and later of the ROG , in the transfer of weapons to the NORP separatists . They also confirmed the participation of NORP troops in the conflict , particularly the involvement of tanks bearing the flag of GPE , shots fired towards the NORP positions from units of ORG and the transfer of a large number of ORG troops to the reserves so that they could fight alongside the NORP or train them ( see PERSON : PERSON , \u00a7 CARDINAL ; and Mr Creang\u0103 , \u00a7 CARDINAL ) .","These assertions are corroborated by the information contained in LOC report no . CARDINAL of DATE , added to the file by ORG , and by other sources ( see PERSON : Mr NORP , \u00a7 CARDINAL ) . In that connection , the ORG notes both the abundance and the detailed nature of the information in its possession on this subject .","It sees no reason to doubt the credibility of the NORP witnesses heard , and notes that their assertions are corroborated by ORG , who confirmed these facts in all of the observations they submitted throughout the proceedings .","As to ORG allegation that the witnesses belonged to political circles opposed to GPE , the ORG notes that this has not been substantiated .","Moreover , it is not possible for the ORG to determine precisely on the basis of the statements taken what the relative strengths of the combatants were . However , regard being had to the support given by the troops of ORG to the separatist forces and the massive transfer of arms and ammunition from ORG stores to the separatists , it is certain that the NORP army was in a position of inferiority that prevented it from regaining control of GPE ( see Annex : Z , \u00a7 CARDINAL ; and PERSON , \u00a7 CARDINAL ) .","On DATE the NORP parliament protested against the silence of the NORP authorities , amounting to complicity in its view , about the support allegedly given to the NORP separatists by armed groups of ORG from GPE belonging to ORG , an association recognised by the NORP authorities . The NORP parliament asked ORG of GPE to intervene , with a view to securing the immediate withdrawal of ORG from NORP territory .","On DATE the Ministers for Foreign Affairs of GPE , GPE , GPE and GPE met in GPE , where they adopted a declaration laying down a number of principles for the peaceful settlement of the conflict . At further meetings held in DATE and DATE in PERSON , the CARDINAL ministers decided to set up ORG and a group of military observers to supervise observance of any ceasefire .","DATE . On DATE the NORP parliament protested about interference by GPE in GPE affairs after the Presidium of ORG of GPE issued a declaration on DATE recommending to GPE solutions for the settlement of the NORP conflict consistent with respect for the rights of the \u201c NORP people \u201d .","On DATE the President of GPE , Mr PERSON , decreed a state of emergency . He noted that \u201c adventurers \u201d had created on the left bank of the Dniester , \u201c not without outside help \u201d , a \u201c pseudo - State \u201d , and that , \u201c armed to the teeth with the most up - to - date equipment of the NORP army \u201d , they had unleashed armed conflict , doing everything they could to bring about the intervention in the conflict of ORG of the combined armed forces of the ORG . Under the state of emergency , ORG and of the ORG and other relevant bodies , acting in concert with the units of the NORP army , were ordered by the President to take all necessary measures to break up and disarm illegally armed formations and seek out and bring to justice all those who had committed crimes against the organs of the ORG and the population of the LOC . The founders of the \u201c so - called GPE \u201d and their accomplices were enjoined to dissolve illegal armed formations and surrender to the organs of the Republic .","By Decree no . CARDINAL of DATE , the President of GPE placed the military formations of the GPE stationed in GPE territory , including those on the left bank of the PERSON , under the jurisdiction of GPE , so that ORG became ORG in the NORP region of GPE ( \u201c the ROG \u201d or , as previously , \u201c the CARDINALth Army \u201d ) .","By Decree no . CARDINAL of DATE , the \u201c President of the FAC \u201d , PERSON PERSON , relieved Lieutenant - General Iakovlev of command of the \u201c Defence and Security Department of the FAC \u201d .","On DATE ORG , the commander of the ROG ( the CARDINALth Army ) , ordered the NORP forces which had encircled the town of GPE ( PERSON ) , held by the separatists , to withdraw immediately , failing which the NORP army would take counter - measures .","The applicants alleged that , after that ultimatum from ORG , joint military exercises between ORG and the separatists began on the former 's shooting range in PERSON .","On DATE the NORP President , Mr PERSON , sent a telegram to the heads of State of the member countries of the ORG , to the commander of the combined armed forces of the ORG and to the commander of ORG , drawing their attention to the fact that ORG was failing to remain neutral .","On DATE PERSON , the Vice - President of GPE , went to PERSON . As evidenced by the press articles the applicants submitted to the ORG , which have not been contested by the other parties , PERSON first visited a military unit of ORG and then went to PERSON 's central square , in the company of Mr PERSON . In a speech to the CARDINAL people present , Mr Rutskoy declared that Mr Snegur did not wish to engage in dialogue and that the best solution would be a confederation in which NORP and NORP would live together on an equal footing . Lastly , he said that ORG should act as a buffer between the combatants so that the NORP people could obtain their independence and their sovereignty and work in peace .","DATE . By Order no . CARDINAL of DATE from the commander - in - chief of the combined armed forces of the ORG , it was decided that only troops and units of ORG stationed in the territory of the former GPE could form the basis for the creation of the armed forces of GPE .","CARDINAL military units which had been part of ORG decided to join the new army of GPE . These were a unit at ORG ( ammunition store no . DATE ) , the CARDINALth artillery regiment at GPE and the ORG rocket artillery regiment at GPE .","The soldiers of the CARDINALth independent battalion of sappers and firemen of ORG refused to enlist in the armed forces of GPE and \u201c placed themselves under the jurisdiction of the NORP region \u201d , according to the terms used by ORG .","In a message sent in DATE to the commander - in - chief of the combined armed forces of the ORG , the President of GPE , PERSON , declared that the events in GPE were prompted and supported by \u201c the imperial and pro - communist structures of the GPE and their legal successors \u201d and that ORG had not been neutral in the conflict . In that connection , he emphasised that the NORP military formations were equipped with modern weapons which had belonged to the former NORP army and that large numbers of NORP citizens had taken part in the conflict on the separatist side as mercenaries .","In a letter sent in DATE to the leaders of the member countries of ORG , the LOC and the ORG , PERSON accused the commander of ORG of arming the NORP units in DATE and complained of the attitude of the CARDINALth ORG of GPE , which had called for the continuing presence in GPE of units of the army of GPE as \u201c pacification forces \u201d . Lastly , Mr PERSON observed that CARDINAL essential condition for the peaceful settlement of the NORP conflict was the rapid withdrawal of the army of GPE from GPE territory , and asked the international community to support the young GPE in its struggle for freedom and democracy .","On CARDINAL DATE the President of the NORP parliament protested against the occupation of further parts of GPE on DATE by the forces of ORG , backed up by PERSON and NORP mercenaries and by NORP paramilitary forces . His statement pointed out that this military aggression on the part of GPE violated GPE 's sovereignty and all the rules of international law , making the negotiations then in progress to find a solution to the conflict in GPE a sham . The President accused GPE of arming the NORP separatists and asked ORG of GPE to call a halt to the aggression and withdraw NORP military forces from NORP territory .","NORP This protest was also directed against speeches deemed to be \u201c full of aggression \u201d towards GPE made in PERSON and GPE by Mr LOC , the Vice - President of GPE , and against a statement made on DATE by ORG of the ROG .","On DATE the NORP parliament sent a letter to ORG of GPE , expressing its gratitude to the NORP authorities , who had declined to join in the occupation of CARDINAL DATE .","On DATE the NORP parliament appealed to the international community , opposing the \u201c new aggression perpetrated in GPE on DATE by the forces of the CARDINALth Army \u201d and complaining that its actions of destruction and pillage had driven large numbers of civilians to flee their homes . The international community was urged to send experts to GPE to halt the \u201c genocide \u201d of the local population .","On DATE the President of GPE , PERSON , asked the Secretary - General of ORG , Mr PERSON , to inform the members of ORG of the \u201c assault on the town [ of GPE ] by the CARDINALth Army \u201d , which he viewed as \u201c direct and brutal \u201d interference in GPE internal affairs . He also expressed his concern about the statements of the President of GPE , PERSON , and its Vice - President , PERSON , \u201c which clearly show[ed ] that GPE [ was ] not prepared to abandon the ' rights ' it no longer possess[ed ] , either de jure or de facto , over a territory that no longer belong[ed ] to it after the dismemberment of the NORP empire \u201d . Mr PERSON concluded : \u201c The threats recently repeated against the legal leaders of GPE , an independent and sovereign ORG , by the NORP authorities are a cause for concern to the NORP public , since they seem to prefigure other means of interference in our internal affairs , that is , means and methods specific to the NORP communist imperialist system ... \u201d","In DATE , intense discussions took place within the ORG about the possibility of deploying a ORG peacekeeping force in GPE . Mention was made in that connection of an agreement signed in GPE in DATE concerning groups of military observers and strategic ORG peacekeeping forces .","At a ORG meeting held in GPE on DATE , it was decided to deploy in GPE , as a preliminary step , a ORG peacekeeping force made up of NORP , NORP , NORP , NORP and NORP troops , on condition that GPE requested this . Although the NORP parliament made such a request DATE , the force was never deployed since some countries had had second thoughts about their agreement to join a ORG force .","On DATE , at the Helsinki Summit of the ORG , the President of GPE , PERSON , asked for consideration to be given to the possibility of applying the ORG peacekeeping mechanism to the NORP situation . That was not done because there was not an effective and lasting ceasefire ( see the previously cited PERSON information document of DATE note to paragraph CARDINAL above ) .","On DATE the President of GPE , Mr PERSON , and the President of GPE , PERSON , signed an agreement on the principles for the friendly settlement of the armed conflict in the NORP region of GPE ( \u201c the ceasefire agreement \u201d \u2013 see paragraph CARDINAL below ) .","The copy submitted to the ORG by ORG bears the signatures of Mr PERSON and Mr PERSON only . ORG supplied the ORG with a copy bearing the signatures of Mr PERSON and PERSON PERSON , as the Presidents of GPE and GPE respectively . Underneath the signature of PERSON , that copy also bears the signature of PERSON , without any indication of his status .","Mr PERSON 's signature is not on the copy submitted by ORG . In his statement to the ORG 's delegates , Mr PERSON confirmed that the official document in CARDINAL copies was signed by him and Mr GPE only ( see PERSON : Mr Snegur , \u00a7 CARDINAL ) .","As appears from the witness evidence given to the ORG , the broad lines of the agreement were drafted by the NORP side , which presented it for signature to the Moldovans ( see Annex : Z , \u00a7 CARDINAL ) .","ORG argued that under the terms of LAW DATE , GPE signed the agreement not as a party to the conflict but as a peace broker .","The agreement introduced the principle of a security zone to be created by the withdrawal of the armies of the \u201c parties to the conflict \u201d ( LAW ) .","Under LAW agreement , a ORG ( \u201c the ORG \u201d ) was set up , composed of representatives of GPE , GPE and GPE , with its headquarters in GPE ( PERSON ) .","The agreement also provided for peacekeeping forces charged with ensuring observance of the ceasefire and security arrangements , composed of CARDINAL NORP battalions , CARDINAL NORP battalions and CARDINAL NORP battalions under the orders of a joint military command structure which was itself subordinate to the ORG .","Under LAW agreement , the town of GPE was declared a region subject to a security regime and its administration was put in the hands of \u201c local organs of self - government , if necessary acting together with the control commission \u201d . The ORG was given the task of maintaining order in GPE , together with the police .","DATE of GPE , stationed in the territory of GPE , to remain strictly neutral ; LAW or blockades and laid down the objective of removing all obstacles to the free movement of goods , services and persons .","Lastly , the measures provided for in the agreement were defined as \u201c a very important part of the settlement of the conflict by political means \u201d ( Article CARDINAL ) .","On DATE GPE adopted a new LAW . It provides , inter alia , that GPE is neutral , that it prohibits the stationing in its territory of troops belonging to other GPE and that a form of autonomy may be granted to regions which include some areas on the left bank of the Dniester ( see paragraph CARDINAL below ) .","On DATE GPE and GPE signed an agreement concerning the legal status of the military formations of GPE temporarily present in the territory of GPE and the arrangements and time - limits for their withdrawal ( see paragraph CARDINAL below ) .","LAW agreement provided that the withdrawal of the NORP army from NORP territory was to be synchronised with the political settlement of the NORP conflict and the establishment of a special status for the \u201c NORP region of GPE \u201d .","This agreement was not ratified by the authorities of GPE and so never came into force ( see paragraph CARDINAL below ) .","The applicants submitted that the NORP peacekeeping forces had not maintained strict neutrality , but had favoured the NORP by allowing them to change the balance of forces which had obtained between the parties at the time of the ceasefire of DATE .","On DATE the NORP delegation to the ORG sent a letter to the head of the NORP delegation to the ORG protesting about a proposal by the deputy commander of GPE land forces to transfer the powers of the NORP peacekeeping units to the units of the ORG , which the NORP delegation considered to be contrary to LAW CARDINAL DATE . The proposal was also deemed unacceptable in view of \u201c a certain level of politicisation of the men of the ORG and their lack of impartiality vis - \u00e0 - vis the parties to the conflict \u201d . The NORP delegation referred to a number of infringements of the principle of neutrality set forth in the agreement of DATE , which included : the transfer of certain military equipment and ammunition by ORG to the unconstitutional authorities in PERSON ; training of \u201c FAC troops by the NORP army ; and transfers of military units from ORG to the \u201c FAC side \u2013 for example , the ORG sapper battalion , converted into an \u201c FAC artillery unit , the transfer of the fortress of GPE ( PERSON ) to the CARDINALnd \u201c FAC infantry brigade , or the transfer to the \u201c FAC \u201d of FAC , occupied by a ORG signals battalion .","The NORP delegation drew attention to the fact that \u201c FAC military units had been brought into the security zone with the connivance of the ORG 's NORP troops , that new paramilitary units had been formed in the town of GPE ( PERSON ) , which had been declared a security zone and was under the responsibility of the NORP peacekeeping forces , and that firms in GPE ( PERSON ) and PERSON were manufacturing weapons and ammunition .","The NORP delegation asked their government to consider the possibility of replacing the NORP peacekeeping forces in GPE by a multinational force under the auspices of ORG or the LOC . Lastly , the GPE delegation expressed their hope for rapid implementation of the agreement of CARDINAL DATE on the withdrawal of the armed forces of GPE from NORP territory .","In a letter dated DATE , the head of the NORP delegation to the ORG stated that the examples of an alleged lack of impartiality on the part of ORG personnel given by the NORP delegation in their letter of DATE were \u201c distortions \u201d and untrue . The NORP delegation considered that the agreement of DATE undoubtedly permitted GPE to transfer to the ROG duties which had been given to the peacekeeping forces and asked the NORP delegation to review their position and reconsider the proposals to that effect made by the NORP Minister of Defence .","On DATE in GPE , PERSON , the President of GPE , and Mr PERSON , the \u201c President of the FAC \u201d , signed a memorandum laying down the basis for the normalisation of relations between GPE and GPE , in which they undertook to settle any conflict they might have through negotiations , with the assistance , where necessary , of GPE and GPE , as guarantors of compliance with the agreements reached , and of the LOC and ORG . The memorandum was countersigned by the representatives of the guarantor GPE , namely PERSON for GPE and PERSON for GPE . It was also signed by PERSON , the OSCE President , who was present at the signing by the parties and the guarantor GPE .","Under the terms of the memorandum , the status of GPE is to be based on the following principles : decisions must be agreed by both sides , powers must be shared out and delegated , and guarantees must be secured reciprocally . GPE must participate in the conduct of the foreign policy of GPE on questions concerning its own interests to be defined by mutual agreement . GPE would have the right to unilaterally establish and maintain international contacts in economic , scientific , technical , cultural and other fields , to be determined by mutual agreement .","The memorandum welcomes the willingness of GPE and GPE to act as guarantors of compliance with the provisions contained in the documents defining the status of GPE and in the memorandum . The parties also confirmed the need to pursue the joint peacekeeping forces ' common activities in the security zone , in accordance with the agreement of DATE . In the event of a breach of the agreements , the memorandum also entitles the parties to seek consultations with the guarantor GPE with a view to measures being taken to normalise the situation . Lastly , the CARDINAL parties undertook to establish relations between themselves in the context of a shared ORG within the borders of the NORP SSR as it existed on DATE .","On DATE representatives of GPE , GPE , GPE and GPE signed in GPE ( GPE ) a number of documents intended to secure the settlement of the NORP conflict ( see paragraph CARDINAL below ) .","In observations submitted in DATE on a draft report on GPE by ORG Committee on the Honouring of Obligations and Commitments by Member States of ORG , ORG indicated that the separatist authorities were illegally removing weapons from the ORG 's stores \u201c with the tacit agreement of the authorities of GPE , whose peacekeeping forces are deployed in the security zone of the NORP region of GPE \u201d .","In a letter of DATE , the NORP delegation to the ORG sent a letter to the heads of the NORP and NORP delegations to the ORG protesting about the partiality of the commanders of the peacekeeping forces . They were accused of permitting the introduction of military equipment and ammunition into the security zone and the enlistment of NORP armed military units . The NORP delegation emphasised that these facts had been noted by the military observers on the ground and complained of the attitude of the commander of the NORP peacekeeping forces , who had neither monitored nor prevented the militarisation of the security zone , thus failing to respect the status of the peacekeeping forces . Lastly , the NORP delegation pointed out that such an attitude on the part of the NORP peacekeeping forces was an encouragement for the NORP .","ORG asserted that the peacekeeping forces respected the neutrality required by the agreement of CARDINAL DATE .","The ORG notes the witness evidence given by the commander of the NORP peacekeeping forces , Colonel PERSON ( see GPE , \u00a7 CARDINAL ) , to the effect that the NORP peacekeeping forces complied with the agreement . The witness further declared that he was not aware of illegal acts by NORP in the zone controlled by the NORP forces .","The ORG observes , however , that the evidence in question is contradicted by the ORG 's official documents , which show , with an abundance of details , that in various areas of GPE under the control of the NORP peacekeeping forces , such as the area of GPE ( PERSON ) , NORP separatist forces were breaching the ceasefire agreement .","Having regard to the official nature of the ORG documents and the consistency of the information they contain , the ORG considers it to be established with a sufficient degree of certainty that , in the area under the responsibility of the NORP peacekeeping forces , the NORP have not discharged the obligations arising for them from the agreement of CARDINAL DATE .","On DATE the Presidents of the Republic of Moldova and GPE , PERSON and PERSON , signed a joint declaration , point CARDINAL of which states :","\u201c The Presidents advocated the rapid and fair settlement of the NORP conflict by exclusively peaceful means based on respect for the principle of GPE sovereignty and territorial integrity , and for international human rights standards . \u201d","In a document dated DATE analysing implementation of the NORP agreement of DATE on the principles for a peaceful settlement of the armed conflict in the GPE region of GPE , the NORP delegation to the ORG pointed to the failure of the NORP side to fulfil their obligations , in that they had created new military units , introduced weapons into the security zone and set up customs posts . The NORP delegation expressed concern about the fact that the joint military command had not taken any suitable steps to put an end to the situation but had merely noted the facts . The NORP delegation proposed that concrete measures to ensure that parties ' undertakings were honoured be discussed by ORG GPE and GPE . Lastly , the NORP delegation proposed that the function of military observer in the security zone be placed under the patronage of the LOC .","In DATE the NORP peacekeeping forces in GPE comprised CARDINAL soldiers , CARDINAL armoured vehicles , CARDINAL other vehicles and CARDINAL firearms .","To date , according to the witness evidence given to ORG ( see PERSON : Colonel Zverev , \u00a7 CARDINAL ) , no soldier of ORG or the ORG has been employed in the NORP peacekeeping forces .","ORG . Meetings with the NORP side continue to take place to discuss various aspects of a possible solution to the situation in GPE .","At these negotiations , the NORP side persuaded the NORP to set up a commission to examine the possibility of pardoning all persons convicted and detained in GPE as a result of judgments pronounced by the NORP courts ( see PERSON : Mr Sturza , \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL ) .","CARDINAL of the subjects regularly placed on the negotiations agenda is the immunity from prosecution requested by the NORP side for civil servants and officials of the NORP administration ( see PERSON : Mr Sturza , \u00a7 CARDINAL ; and Mr PERSON , \u00a7 CARDINAL ) .","NORP Since DATE a number of plans to give GPE a federal structure have been proposed by the LOC , the President of GPE and GPE .","The most recent negotiations , conducted with the help of the LOC , were based on proposals aimed at setting up a federal ORG in which GPE would be autonomous .","On DATE , in the context of negotiations with GPE , the NORP parliament adopted a protocol concerning the creation of a mechanism for drafting a federal constitution for GPE .","According to a press release put out by the LOC mission in GPE , the first meeting of the joint commission took place on DATE at ORG headquarters in GPE . At that meeting it was decided that a final text should be made ready by DATE so that LAW could be presented to all of the NORP people for adoption at a referendum to be organised in DATE .","As provided for in LAW of DATE , GPE and GPE began negotiations over the withdrawal of the ROG from NORP territory and its status pending such withdrawal .","GPE proposed in DATE that the ORG 's withdrawal from NORP territory should be timed to coincide with settlement of the NORP conflict ( see paragraph CARDINAL above ) , and GPE only accepted that proposal , which it considered counterproductive , on GPE 's insistence and after persuading GPE to declare itself in favour of the speedy release of the members of the ORG group ( see Annex : Y , \u00a7 CARDINAL ) .","In a press release of CARDINAL DATE , ORG said that the GPE authorities were categorically opposed to any synchronisation between the political settlement of the NORP conflict and the withdrawal of the NORP armed forces from NORP territory , and that they sought the complete and unconditional withdrawal of the NORP armed forces , in accordance with the LOC 's decisions ( see paragraph CARDINAL below ) , especially as the LOC member GPE had set up a voluntary fund to finance the withdrawal in question .","Article CARDINAL of the agreement of DATE ( \u201c the first agreement \u201d ) provided for the withdrawal by GPE of its military formations within DATE from the entry into force of the agreement , with implementation of the withdrawal within the time - limit to take place simultaneously with a political settlement of the NORP conflict and the establishment of a special status for the \u201c NORP region of GPE \u201d ( see paragraph CARDINAL below ) . As regards the stages and dates for the final withdrawal of NORP troops , LAW provided that these were to be determined in a separate protocol to be concluded between the parties ' ORG .","Under LAW , the sale of any type of military technology , weapon or ammunition belonging to the military forces of GPE stationed in the territory of GPE could take place only by way of a special agreement between the governments of the CARDINAL countries .","According to LAW , PERSON military airport was to be used jointly by the aircraft of the PERSON and the \u201c civil aviation of the NORP region of GPE \u201d . A second agreement , also reached on DATE , between the NORP and NORP Ministers of Defence ( \u201c the second agreement \u201d ) governed the use of PERSON airport . It provided , for example , that flights to PERSON airport were to be made in accordance with the \u201c Provisional rules on the joint dispersed aviation of the military formations of GPE and the civil aviation of the NORP region of GPE \u201d , in coordination with GPE 's ORG civil aviation authority and ORG of GPE ( see paragraph CARDINAL below ) .","On DATE ORG adopted the decision to implement the agreement concerning the withdrawal of the NORP army from NORP territory . On a date which has not been specified , the Government of GPE decided to submit this agreement for ratification by the PERSON . On DATE , as the first agreement of DATE had still not been ratified by the PERSON , the Minister for ORG of GPE asked the PERSON to remove the matter from its order of business , on the ground that \u201c any decision by the ORG to reconsider this issue will depend on the evolution of relations with GPE and the NORP region and on a political settlement in the area \u201d . In DATE the agreement was removed from the PERSON 's order of business . It has still not come into force .","The second agreement was approved by ORG alone , on DATE .","The Moldovan Government emphasised that the words \u201c civil aviation of the NORP region of GPE \u201d , contained in the agreements with GPE , must be interpreted as a reference to the constitutional local authorities of GPE answerable to the central authorities , which did not apply to the NORP separatist regime .","ORG submitted that these words meant the present local authorities , which were seen as a mere business partner . They maintained that this did not amount in any way to official or political recognition of the \u201c FAC .","The ORG notes , firstly , that neither of the agreements of CARDINAL DATE has come into force , not having been ratified by GPE .","It further notes that , according to the witness evidence of Mr PERSON , the commander of the ROG , PERSON airport is used as a free space by both the NORP military forces and the NORP separatists . The airspace is monitored by GPE or NORP air - traffic controllers , depending on whether the territory over which the flight path crosses is NORP or GPE . It also appears that NORP aircraft can not take off from or land at PERSON airport without the authorisation of the relevant NORP authorities .","Flight security at Tiraspol airport is controlled by the NORP forces as regards NORP aircraft taking off , landing or parked on the ground , and by the NORP separatists as regards their aircraft . Neither the ORG authorities nor the NORP peacekeeping forces interfere with the way in which the NORP use PERSON airport . For their part , the NORP separatists do not interfere with the way in which the NORP forces use it ( see FAC : General PERSON , \u00a7 CARDINAL ) .","It appears from a study by Mr PERSON , \u201c The military aspect of a settlement of the conflict in the eastern region of GPE \u201d ( published by ORG in DATE and submitted to the ORG by the applicants ) , that \u201c FAC military formations have taken over the control tower and the technical installations of PERSON airport , in breach of the agreement of DATE , while the ROG part of the airport is allegedly used for purposes other than those mentioned in the agreement , for example for visits to GPE by NORP politicians and for arms sales transactions .","The other parties did not comment on the above information .","Article CARDINAL of the first agreement provides that all accommodation , barracks , vehicle parks , shooting ranges and fixed machine tools , stores and the tools they contain left unused after the withdrawal of the military formations of GPE are to be transferred for management \u201c to the organs of the local public administrative authorities of GPE \u201d in the quantity existing de facto . It also provides that the arrangements for the transfer or sale of the immovable property assets of the NORP military are to be determined in an agreement to be reached for that purpose between the parties ' governments .","According to LAW , with a view to ensuring the withdrawal of the military formations of GPE from the territory of GPE within the time - limit and their effective deployment in their new stations in the territory of GPE , GPE is required to contribute a portion of the costs for the construction inside the territory of GPE of the premises needed for their installation .","In its Opinion No . CARDINAL of DATE on the accession of GPE to ORG , ORG of ORG noted the intention expressed by GPE \u201c to ratify , within DATE from the time of accession , the agreement of CARDINAL DATE between the NORP and ORG , and to continue the withdrawal of ORG and its equipment from the territory of GPE within a time - limit of DATE from the date of signature of the agreement \u201d .","NORP In a report dated DATE , the principal military prosecutor of ORG of GPE , Lieutenant - General PERSON , noted that irregularities and illegal acts had been committed within the ROG in relation to the management of military equipment . In particular , he noted the lack of supervision , which encouraged abuses and theft , failure to comply with decisions concerning the transfer free of charge to the NORP leaders of a number of motor vehicles taken out of service , the communication to those leaders of an inventory of military engineers ' equipment in the ORG 's stores , which had prompted them to demand an increase in the quantities of goods transferred , and the unauthorised transfer to the \u201c FAC of CARDINAL pieces of technical equipment and QUANTITY of other equipment .","Consequently , the principal military prosecutor asked the Minister of Defence of GPE to take additional measures to put an end to the breaches of the law noted within the ORG , to consider whether to bring disciplinary proceedings against Lieutenant - General PERSON and PERSON - General D. for failure to maintain effective control and dereliction of duty , and to inform him of the results .","On DATE , among other documents concerning a settlement of the situation in GPE , an agreement on questions concerning the military assets of ORG ( see paragraph CARDINAL below ) was signed in GPE ( GPE ) . The signatories were PERSON , on behalf of ORG , and PERSON , \u201c President of the FAC \u201d .","According to the timetable annexed to the agreement , the withdrawal and decommissioning of certain stocks , to be disposed of by explosion or some other mechanical process , was to be completed by DATE , subject , among other conditions , to authorisation by the authorities of GPE , \u201c particularly of the region of GPE \u201d .","The withdrawal ( transfer and decommissioning ) of surplus ammunition and other ROG equipment was planned to take place by DATE at the latest . The withdrawal of the ORG 's standard - issue equipment and personnel not forming part of the peacekeeping forces was to be completed by DATE , on condition that the process of withdrawing ammunition and other equipment to GPE had been completed by then , that other equipment was transferred or decommissioned , and that GPE discharged its obligations arising under LAW of CARDINAL DATE .","In their declaration at the GPE summit of DATE , the heads of ORG and government of GPE indicated that they were expecting \u201c an early , orderly and complete withdrawal of NORP troops from GPE \u201d and welcomed the commitment by GPE to complete withdrawal of its forces from NORP territory by DATE . Lastly , they pointed out that an international assessment mission was ready to be dispatched without delay to explore removal and destruction of NORP ammunition and armaments .","In observations submitted in DATE to ORG of ORG , ORG asserted that on that date the official figure put forward by the NORP authorities for the quantity of ROG arms and ammunition stocked in GPE was QUANTITY , but that it had not been possible to verify that figure , since both the NORP authorities and the NORP separatists had refused to countenance an international assessment mission .","The NORP authorities drew attention to the fact that any withdrawal of ROG personnel not accompanied by removal of the PERSON 's enormous weapons stocks would increase the risk that NORP separatists would get their hands on these weapons .","A number of trainloads of equipment belonging to the ROG were moved out DATE .","On DATE GPE signed a protocol concerning joint work with a view to using the weapons , military technology and ammunition .","On DATE ORG submitted to ORG a document showing that in DATE GPE and the \u201c FAC signed an agreement on the withdrawal of the NORP forces . Under that agreement , in compensation for the withdrawal of part of the NORP military equipment stationed in GPE , the \u201c FAC was granted a reduction of MONEY in its debt for gas imported from GPE , and the transfer to it by the ROG , in the course of their withdrawal , of part of their equipment capable of being put to civilian use .","According to a document submitted to the ORG in DATE by ORG , the volume of high - tech weaponry , ammunition and military equipment belonging to the ORG which had been withdrawn by DATE from the territory of GPE by virtue of the agreement of CARDINAL DATE represented PERCENT of the total volume declared in DATE as being stationed in GPE territory .","According to an OSCE press release , CARDINAL railway wagons carrying bridge - building equipment and field kitchens were moved out on DATE .","The same press release quoted a declaration by the commander of the ORG , General PERSON , to the effect that the latest withdrawals had been made possible by an agreement with the NORP under which the NORP authorities were to receive CARDINAL of the non - military equipment and supplies withdrawn . General PERSON cited the example of the withdrawal , on DATE , of CARDINAL lorries , which had been followed by the transfer of CARDINAL ORG lorries to the NORP .","NORP In DATE , according to information supplied to the ORG by ORG , the ORG still had CARDINAL troops in GPE . In his witness evidence , General PERSON asserted that in DATE the ORG 's numbers had shrunk to CARDINAL troops ( see GPE , \u00a7 CARDINAL ) .","The ORG has not received any precise information about the quantity of arms and ammunition stocked by the ROG in GPE . According to the applicants and the witness evidence taken by the ORG 's delegates ( see PERSON : Mr Snegur , \u00a7 CARDINAL ) , in DATE the ORG had CARDINAL tonnes of military equipment and ammunition there , mainly kept at Kolbasna .","According to information supplied by ORG in DATE and not contested by the other parties , the ORG had in addition the following equipment : CARDINAL battle tanks , CARDINAL armoured cars , CARDINAL armoured personnel carriers , CARDINAL armoured reconnaissance vehicles , QUANTITY and mortars , CARDINAL anti - tank weapons , CARDINAL anti - aircraft guns , CARDINAL helicopters and CARDINAL vehicles of various kinds . In his witness evidence , General PERSON asserted that CARDINAL battle tanks had been destroyed during DATE and that the destruction of anti - aircraft defence systems was in progress ( see GPE , \u00a7 CARDINAL ) .","ROG personnel , and the military prosecutors and judges attached to the ROG , did not receive any specific instructions regarding their relations with the NORP authorities ( see PERSON : Lieutenant - Colonel GPE , \u00a7 CARDINAL ) .","ROG personnel can travel freely in NORP territory . Before moving troops or equipment , the ORG informs the NORP authorities . Sometimes these movements occasion incidents , such as occurred with the seizure by the NORP of CARDINAL ROG vehicles ( see PERSON : Lieutenant - Colonel Radzaevichus , \u00a7 CARDINAL ; and Lieutenant - Colonel GPE , \u00a7 CARDINAL ) . In such cases , and in the absence of instructions , the ROG authorities try to negotiate directly with the NORP authorities . According to the legal provisions in force in GPE , the ORG 's prosecuting authorities are not empowered to refer cases directly to the NORP authorities , which have jurisdiction in NORP territory . Any theft or other criminal act committed by a NORP civilian against the ROG must be reported by the ORG authorities to the relevant authorities of GPE , since only they can refer the matter to the GPE authorities .","In practice , criminal acts of this type are investigated by the NORP authorities .","ROG investigators are empowered to investigate criminal acts committed by ROG personnel or with their participation , but only in relation to the individual soldiers implicated . However , to date , no case of this type has been reported ( see PERSON : Lieutenant - Colonel Levitskiy , \u00a7 CARDINAL ; and Mr GPE , \u00a7 CARDINAL ) .","According to the documents submitted to the ORG by ORG , ORG equipment and installations lending themselves to civilian use have been transferred to the \u201c FAC . For example , the building in which the applicants were detained in DATE by ORG was transferred in DATE to the NORP separatists . According to the witness evidence given by PERSON , the building is now used by the \u201c FAC prosecution service \u201d ( see GPE , \u00a7 CARDINAL ) .","According to the study by Mr PERSON ( see paragraph CARDINAL above ) , the Kolbasna military store was divided in DATE into CARDINAL parts , CARDINAL of which was assigned to the \u201c FAC , which installed an ammunition store there for its army . He reported that , at the time when his study was published in DATE , security at the \u201c FAC store was provided by a CARDINAL motorised infantry brigade of the \u201c FAC army equipped with armoured transport vehicles , anti - tank weapons and mine throwers , plus an anti - aircraft battery , which also controlled movement into and out of the stores as a whole . Security at the ROG store was provided by ROG personnel . For movement out of the part of the stores which belongs to the ROG , a NORP customs post has been specially installed . Security and movement within the stores as a whole could not be monitored from the outside .","NORP From undated statements to the press , submitted to the ORG by the applicants and not contested by the other parties , it appears that the ORG of GPE at the time , PERSON , recognised the \u201c legitimacy of the entity created on the left bank of the Dniester \u201d .","In an undated television appearance reported by the press , as submitted to the ORG by the applicants and not contested by the other parties , the President of GPE , PERSON , said : \u201c GPE has lent , is lending and will continue to lend its economic and political support to the NORP region . \u201d","After the end of the conflict , senior officers of ORG participated in public life in GPE . In particular , soldiers of ORG took part in the elections in GPE , military parades of the NORP forces and other public events . The documents in the file , and the evidence of several witnesses who agreed on this point and were not contradicted by the other parties , show that on DATE General PERSON , the ORG 's commander , was elected a member of the \u201c Supreme NORP of the FAC \u201d ( see PERSON : Mr Ila\u015fcu , \u00a7 CARDINAL ; Mr GPE , \u00a7 DATE ; and GPE , \u00a7 QUANTITY ) .","The applicants alleged that a consulate of GPE had been opened in NORP territory , in the territory of the ROG , without the agreement of the GPE authorities and that various activities including polling took place there .","ORG denied the existence of a NORP consulate in NORP territory .","On DATE the ORG sent a note to the embassy of GPE in PERSON in which the GPE authorities expressed their regret about the fact that the authorities of GPE had opened CARDINAL fixed polling stations in NORP territory for the presidential election of DATE without the agreement of the NORP authorities and that in acting thus the NORP authorities had presented them with a fait accompli , creating an undesirable precedent . The note went on to say that the only places in which the opening of polling stations was desirable were the ROG headquarters in PERSON , the headquarters of the peacekeeping forces in GPE ( PERSON ) , the NORP embassy in PERSON and mobile polling stations .","The ORG notes that , apart from the applicants ' assertions , there is no evidence of the existence of a NORP consulate in PERSON carrying out ordinary consular functions and open to all NORP who have or wish to acquire NORP nationality . In addition , none of the witnesses who gave evidence in GPE was able to confirm such allegations . In the absence of corroboration , the ORG can not consider it to have been established beyond a reasonable doubt that a NORP consulate is permanently open in PERSON for all NORP who have or wish to acquire NORP nationality .","On the other hand , the ORG takes it as established that fixed consular posts , operating as polling stations , were opened by the NORP authorities in NORP territory without the agreement of the GPE authorities .","With regard to the press articles submitted by the applicants mentioning the existence of a consular office of GPE in the territory of the ROG , the ORG notes that these too are uncorroborated . However , ORG have not denied the existence of such an office . The ORG considers that in view of the special situation of the ORG , stationed in NORP territory , it is plausible that for practical reasons a consular office should be opened in the territory of the ROG to enable NORP soldiers to settle various problems normally dealt with by consulates .","The applicants asserted that on CARDINAL DATE ORG opened a number of accounts for ORG . The other parties did not challenge the veracity of that information .","In Resolution no . CARDINAL IGD of CARDINAL DATE , ORG GPE declared GPE a \u201c zone of special strategic interest for GPE \u201d .","Eminent politicians and representatives of GPE have confirmed on various occasions the support it has lent to ORG Representatives of the PERSON and other prominent figures of GPE have travelled to GPE and taken part in official events there .","For their part , representatives of the \u201c FAC regime have travelled to GPE on official visits , notably to the PERSON .","The applicants also submitted that , DATE after the conflict , the support given by the NORP authorities to the creation of the NORP regime was publicly confirmed in a television programme broadcast on an unspecified date on the NORP channel TV - Centre in which PERSON , Mr PERSON and Mr PERSON were interviewed . During the programme , PERSON , who was President of the NORP parliament from DATE , said that when it became clear that GPE was going to leave the sphere of NORP influence an \u201c administrative territorial enclave \u201d was created there . During the same programme , PERSON PERSON , the President of GPE , said that the former NORP President , PERSON , had supported Mr PERSON in order to use him against the democratic regime in PERSON .","The other parties did not contest these facts .","On DATE Lieutenant - General Iakovlev , the former commander of ORG and former head of ORG of the MRT \u201d , became a citizen of GPE .","In DATE Mr M\u0103r\u0103cu\u0163\u0103 , the \u201c President of ORG of the FAC , was granted NORP nationality .","In DATE PERSON , CARDINAL of the \u201c FAC leaders , also acquired NORP nationality .","Mr PERSON was granted NORP nationality in DATE ( according to ORG ) or DATE ( according to the applicants ) .","According to the applicants , who were not contradicted on this point by the other parties , the arms industry is CARDINAL of the pillars of the NORP economy , which is directly supported by NORP firms involved in arms manufacture in GPE .","According to the study by PERSON ( see paragraph CARDINAL above ) , from DATE onwards NORP arms firms began to specialise in the production of high - tech weapons , with the help of funds and orders from various NORP companies , including the NORP arms producer and trader \u0420\u043e\u0441\u0432\u043e\u043e\u0440\u0443\u0436\u0435\u043d\u0438\u0435. NORP companies provide NORP firms with the technology and equipment they need to manufacture modern weaponry and military equipment . NORP firms also produce components for NORP arms manufacturers . For example , the Elektrommash company receives the components for the silenced pistols it produces from GPE and delivers components for various weapons systems assembled in GPE .","Citing PERSON 's study , the applicants submitted that , under the cover of \u201c withdrawal \u201d , the ORG was supplying NORP firms with parts and tools for military use . They alleged that the PERSON engineering works , which produces QUANTITY , regularly received truckloads of mortars and howitzers from the ORG stores at Kolbasna , passed off as \u201c destruction of untransportable ammunition \u201d .","NORP In addition , there was interdependence between NORP economic and other interests and the ROG on account of the fact that the ORG employs huge numbers of the inhabitants of GPE .","According to the same study by PERSON , PERCENT of the command structure of the ORG unit stationed in NORP ( including the ammunition store ) was made up of inhabitants of GPE and PERSON , while PERCENT of the technical staff of the ORG stores ( head storekeepers , technicians and mechanics ) were inhabitants of the region .","In all , PERCENT of the ORG 's officers and PERCENT of its non - commissioned officers were inhabitants of the \u201c FAC .","The other parties did not contest this information .","There is judicial cooperation for the transfer of prisoners between GPE and GPE , without going through the GPE authorities . NORP prisoners detained in GPE have been transferred thanks to such cooperation to a prison in GPE ( see PERSON : Colonel PERSON , \u00a7 CARDINAL ; and Mr GPE , \u00a7 CARDINAL ) .","The applicants asserted , citing press articles , that visits between officials of GPE and the \u201c FAC continued to take place . On DATE the newspaper GPE reported a visit by a delegation of the \u201c Supreme NORP of the FAC \u201d , including ORG , PERSON and Mr PERSON , to the PERSON of GPE . On DATE an CARDINAL - member delegation from the PERSON went to PERSON and stayed there until DATE .","In addition , DATE and DATE , members of the PERSON took part in the celebrations to mark the CARDINALth anniversary of the \u201c FAC 's declaration of independence .","\u201c FAC leaders have been awarded official distinctions by various institutions of GPE and are received in honour by its State organs . It appears from the documents filed by the applicants that Mr PERSON was invited to GPE by ORG .","GPE has direct relations with the \u201c FAC regarding its gas exports .","As shown by a telegram sent on DATE by the Chairman of the NORP group ORG to the Deputy Prime Minister of GPE , contracts for supplying gas to GPE do not apply to GPE , to which gas is delivered separately on more favourable financial terms than those granted to the rest of GPE ( see Annex : Y , \u00a7 CARDINAL ; and PERSON , \u00a7 CARDINAL ) .","Transdniestria receives electricity directly from GPE .","Products manufactured in GPE are exported to the NORP market , some of them being passed off as NORP products ( see PERSON : PERSON , \u00a7 CARDINAL ) .","The ORG buys certain products which it needs to supply its troops directly from the NORP market ( see ORG : General PERSON , \u00a7 CARDINAL ) .","NORP companies have taken part in privatisations in GPE . The documents submitted by the applicants show that the NORP firm ORG bought the largest undertaking in GPE , the FAC engineering works , despite the opposition of the NORP authorities .","NORP Moreover , in DATE ORG submitted to the ORG a video cassette containing a recording of a NORP television programme about NORP relations and the NORP regime . The NORP commentator mentioned in the first place the treaty of friendship recently signed by GPE and GPE , in which GPE and PERSON condemned \u201c separatism in all its forms \u201d and undertook \u201c not to lend any support to separatist movements \u201d . According to the journalist , the treaty unambiguously confirmed ORG support for GPE in the NORP conflict . The rest of the item looked at various aspects of the NORP economy , presented as being wholly under the control of the PERSON family , stating that its main source of income was the manufacture and export of arms to countries such as GPE , GPE , GPE or GPE . The programme closed with the information that the NORP authorities had shut down the broadcast over the territory of the \u201c FAC , citing poor weather conditions as the excuse .","The NORP authorities have never officially recognised the organs of the \u201c FAC as a ORG entity .","After the agreement of CARDINAL DATE , the CARDINAL parties established relations with a view to settling the conflict .","Contact was established and maintained mainly through negotiation committees and concerned the political question of GPE 's status , and settlement of various aspects of everyday life ( economic , social , etc . ) .","According to the concordant statements of several witnesses ( see Annex : Mr GPE , \u00a7 CARDINAL ; PERSON , \u00a7 CARDINAL ; Z , \u00a7 CARDINAL ; Mr GPE , \u00a7 CARDINAL ; and Mr PERSON , \u00a7 CARDINAL ) , the first meetings between GPE and GPE related to exchanges of prisoners captured on either side during the DATE fighting . These exchanges generally concerned groups of prisoners .","According to the concordant statements of several witnesses ( see Annex : Mr PERSON , \u00a7 CARDINAL ; Mr LOC CARDINAL : and PERSON , \u00a7 MONEY ) , after the ceasefire of DATE , private individuals and official delegations involved in the negotiations were able to travel to GPE . There were sometimes incidents , when NORP guards refused access to GPE .","As private individuals , doctors have fairly free access to GPE , whether for consultations or for professional conferences ( see PERSON : Mr PERSON , \u00a7 CARDINAL ; and Mr GPE , \u00a7 CARDINAL ) .","From DATE onwards , the GPE authorities began to institute criminal proceedings against certain NORP officials accused of falsely claiming the status of ORG officers ( see paragraphs CARDINAL and CARDINAL below ) .","Nevertheless , persons who had acted as senior officials of the \u201c FAC were able to return to GPE and subsequently take high office . For example , Mr PERSON , who had been \u201c Minister of Justice of the FAC \u201d in DATE , held a number of senior ORG offices after his return from GPE ; he was a member of the NORP parliament from DATE , ORG from DATE and member of the NORP parliament and Chairman of ORG DATE ( see PERSON : Mr PERSON , \u00a7 \u00a7 CARDINAL - CARDINAL ) .","On DATE , in the presence of OSCE mediators , GPE and GPE , the GPE authorities adopted a protocol providing for the removal of the customs posts belonging to GPE .","Movement of persons between GPE and the rest of GPE after DATE took place under the same conditions as before , with the NORP authorities deciding whether to permit passage in a discretionary fashion . When official delegations or NORP dignitaries wish to enter GPE , prior contact for the purpose of seeking authorisation is necessary , even though such authorisation may be revoked at any time ( see PERSON : Mr Sereda , \u00a7 CARDINAL ) . For example , ORG said that in DATE , as a reprisal against a decision taken in DATE by ORG prohibiting PERSON and QUANTITY other NORP leaders from entering ORG for DATE , the NORP authorities declared certain senior NORP leaders , including the President of GPE , the President of the NORP parliament , the Prime Minister , the Minister of ORG and the Minister for ORG , personae non gratae .","The applicants alleged that NORP leaders , including PERSON PERSON , Mr M\u0103r\u0103cu\u0163\u0103 and PERSON , also had NORP nationality and were in possession of NORP diplomatic passports . In addition , they asserted that ORG had awarded them official honours .","ORG said that the NORP leaders did not possess NORP nationality as they had never requested NORP identity papers .","The ORG notes that the witness questioned by the delegates on this subject denied that any NORP identity documents whatsoever had been issued to Mr PERSON , Mr M\u0103r\u0103cu\u0163\u0103 and PERSON ( see PERSON : Mr Molojen , \u00a7 CARDINAL ) . In the absence of corroboration of the applicants ' allegations , the ORG considers that it has not been established beyond a reasonable doubt that the GPE authorities issued passports to NORP leaders .","A number of senior NORP officials , including Mr PERSON , the Minister of ORG , Deputy Attorney - General and , since DATE , Chairman of ORG , have continued to visit PERSON to meet NORP politicians , including Mr PERSON , Mr M\u0103r\u0103cu\u0163\u0103 , the \u201c Attorney - General of the FAC \u201d and the \u201c President of ORG of the FAC . The main subjects discussed at these meetings have been the applicants ' situation , their release , and negotiations about the future status of GPE , including official decisions taken by NORP local authorities ( see PERSON : Mr Sturza , \u00a7 CARDINAL ) .","On DATE the President of the NORP parliament , PERSON PERSON , visited Mr PERSON in his prison cell in PERSON . On DATE , the NORP President , PERSON , visited PERSON .","On DATE the President of GPE , PERSON , and the NORP leader , PERSON , signed CARDINAL agreements \u2013 CARDINAL about mutual recognition of documents issued by the NORP and NORP authorities , and the other concerning measures to attract and protect foreign investment .","In the field of economic cooperation , the applicants asserted that the NORP authorities issued certificates of origin for products from GPE .","ORG did not comment on this allegation .","As regards the alleged practice of the NORP authorities of issuing certificates of origin to goods exported from GPE , as submitted by the applicants and by ORG , the ORG notes that this allegation was not confirmed by any witness . On the contrary , PERSON , ORG , denied the existence of such a practice ( see FAC , \u00a7 CARDINAL ) .","In these circumstances , in the absence of corroboration of the applicants ' assertions , the ORG can not regard it as established beyond a reasonable doubt that the NORP authorities are conducting a policy of supporting the NORP economy through such export certificates .","NORP In addition to the cooperation introduced as a result of the agreement reached by the President of GPE and the \u201c President of the FAC , as established by the witness evidence taken by the ORG 's delegates , there are more or less de facto relations between the NORP and NORP authorities in other fields . For example , ORG , particularly the prisons service , and ORG are in contact ( see PERSON : Lieutenant - Colonel PERSON , \u00a7 CARDINAL ) . There are also unofficial relations between the NORP and NORP authorities on judicial and security matters , in the interests of crime prevention . Although there is no cooperation agreement , NORP prosecutors or officers investigating criminal cases sometimes ring their \u201c colleagues \u201d in GPE , particularly to obtain information and summon witnesses ( see PERSON : PERSON , \u00a7 CARDINAL ; and PERSON , \u00a7 CARDINAL ) .","There is a single telephone system for the whole of GPE , including GPE . A telephone call between PERSON and PERSON is considered a national call ( see PERSON : PERSON , \u00a7 CARDINAL ; and Mr PERSON , \u00a7 MONEY ) .","ORG issues identity documents ( identity cards ) to all persons resident in GPE , including those in GPE ( see PERSON : PERSON , \u00a7 CARDINAL ) .","NORP In DATE , under agreements with ORG , the GPE authorities set up a chain of mixed NORP customs posts along the border with GPE and introduced new customs stamps not available to the NORP authorities . The ORG has not been informed whether the NORP - Ukrainian customs posts are still operational .","NORP In response to the measures mentioned in the previous paragraph , the NORP authorities informed the GPE authorities , in a letter of DATE , of the unilateral suspension of negotiations on the status of GPE , threatening to cut off gas and electricity supplies to GPE passing through GPE .","ORG asserted that , during an incident in DATE at the railway junction of GPE ( PERSON ) , the NORP authorities had blocked CARDINAL wagons containing humanitarian gifts for NORP children and elderly persons and shipments of petroleum and other goods from ORG on their way to NORP firms .","In a declaration made public on DATE , the LOC mission in GPE criticised the actions of the NORP authorities , who on DATE had started to prevent the ORG representatives from entering the territory controlled by the \u201c FAC \u201d , in breach of the agreement of CARDINAL DATE between the LOC and Mr PERSON .","It appears from a document submitted to the ORG by ORG on DATE , that by Order no . CARDINAL of DATE the \u201c Minister of Security of the FAC \u201d refused access to the territory of the \u201c FAC \u201d to the representatives of ORG , ORG and other NORP military bodies .","Lastly , the national football championship also includes NORP teams , and matches played by the NORP football team , including international games , are often staged in PERSON , as was the case for a match against the GPE in DATE ( see PERSON : Mr PERSON , \u00a7 MONEY ) .","The ORG summarises below the facts connected with the applicants ' arrest , pre - trial detention , conviction and conditions of detention , as alleged by the applicants and confirmed by the documentary evidence and the witnesses ' statements .","It further notes that , in their written observations of DATE , ORG endorsed the applicants ' account of the circumstances in which they had been arrested , convicted and detained . In the same observations they indicated that the applicants had certainly been arrested without a warrant , that they had remained for DATE on LOC belonging to ORG and that the searches and seizures had also been carried out without a warrant .","ORG submitted that the applicants ' allegations about their conditions of detention were very plausible .","ORG indicated that they had had no knowledge of the circumstances of the applicants ' arrest , conviction and conditions of detention .","It appears from the evidence given by the applicants , their wives and Mr PERSON , corroborated in general by the statement of Mr Timoshenko , that the applicants were arrested at their homes in PERSON DATE , in TIME . They were arrested by a number of persons , some of whom wore uniforms bearing the insignia of ORG of the GPE , while others wore camouflage gear without distinguishing marks .","The details of their arrest are as follows .","The second applicant , PERSON , was arrested on DATE at TIME DATE his home was searched in the presence of his neighbours .","The first applicant , PERSON , who at the material time was the local leader of ORG ( a party represented in the NORP parliament ) and was campaigning for the unification of GPE with GPE , was arrested on DATE , at TIME , when CARDINAL persons armed with automatic pistols forcibly entered his home in PERSON , where they carried out a search and seized certain objects . These included a pistol which , according to the applicant , had been placed in his house by the persons searching the LOC . The applicant alleged that his arrest and the search were carried out without a warrant . He had been informed that he was being arrested because , as a member of ORG , he presented a threat to the stability of the \u201c FAC , which was at war with GPE .","The third applicant , PERSON , was arrested at his home on DATE at TIME by several armed persons who struck him with the butts of their weapons and kicked him . According to the applicant , during the search which followed , several carpets , MONEY and a \u201c handsome \u201d watch were confiscated .","The fourth applicant , PERSON , was arrested on DATE at TIME by QUANTITY persons , one of whom was a police officer , PERSON . At TIME , CARDINAL public prosecutors , Mr Starojuk and Mr Glazyrin , searched the applicant 's home in his absence .","In a DATE indictment drawn up by public prosecutor Starojuk , among others , the applicants were accused of anti - NORP activities and of fighting by illegal means against the legitimate State of GPE , under the direction of ORG and GPE . They were also accused of committing a number of offences punishable , according to the indictment , in some cases by LAW and in others by that of the Moldovan Soviet GPE . The offences of which the applicants were accused included the murder of CARDINAL NORP , PERSON and PERSON ( see also paragraph CARDINAL below ) .","As evidenced by the concordant statements of the applicants and other witnesses ( see PERSON : Mr GPE , \u00a7 \u00a7 CARDINAL and DATE ; PERSON , \u00a7 \u00a7 DATE ; and PERSON , \u00a7 \u00a7 DATE and CARDINAL ) , the applicants were first taken to PERSON police headquarters , which were probably also the premises of the \u201c ORG of the CARDINAL \u201d , where they were interrogated and subjected to ill - treatment for DATE . Their interrogators included PERSON , \u201c Deputy Minister of Security \u201d , PERSON ( or GPE ) , the \u201c Minister \u201d , and a person named GPE . Some of the guards and investigators wore uniforms which were similar , if not identical , to those used by the NORP personnel of ORG . During DATE of their detention at police headquarters , the applicants were beaten regularly and severely , and received practically nothing to eat or drink . The interrogations often took place at TIME and during the daytime they were not permitted to rest .","The first applicant said that he had been taken immediately after his arrest into the office of the \u201c Minister of Security of the FAC \u201d , where there were CARDINAL other persons , introduced to him as colonels in the NORP counter - espionage service . They asked him , in exchange for his release , to place at the service of GPE the skills he had acquired during his military service with the GPE special troops and pass himself off as an agent working for the NORP secret service . The applicant alleged that , when he turned down that proposal , he was told that his only alternative was the cemetery .","DATE after their arrest , the first CARDINAL applicants were taken separately to the ORG garrison headquarters ( komendatura ) in FAC , PERSON , in vehicles bearing NORP markings .","The applicants submitted that during their detention in the territory of ORG , they were guarded by soldiers of that army and that while they were there , NORP police officers came to see them in their cells . They also alleged that during this period they were tortured by ORG personnel .","ORG said that , in the light of the statements made by the NORP witnesses and Mr GPE to the delegates of the Court , it was apparent that ORG personnel had taken part in the applicants ' arrest and interrogation .","In their observations of DATE , ORG repeated their initial position , namely that the ORG did not have jurisdiction ratione temporis to examine events which had taken place in DATE .","On the merits , they nevertheless acknowledged that the applicants had been detained on the premises of ORG , but asserted that this detention had been of very short duration and that in any event it had been illegal . The Government said that military prosecutor ORG had put a stop to this illegal detention as soon as he had been informed of it . They did not comment on the question whether NORP soldiers had taken part in the applicants ' initial arrest .","They submitted that , apart from providing cells for the applicants ' detention , the ORG personnel had done nothing illegal . In particular , they had not guarded the cells in which the applicants were detained . In that connection , the ORG said that the applicants could not have seen NORP insignia on the warders ' uniforms because the new NORP insignia , which replaced those of the GPE , had only been introduced by Order no . CARDINAL , issued on DATE by the Minister of Defence of GPE .","ORG further submitted that Colonel PERSON ( see paragraph CARDINAL below ) had not served in the NORP military formations stationed in NORP territory , but had performed his service at the \u201c ORG of the FAC .","The ORG notes that the first CARDINAL applicants alleged that they had been detained for DATE at ORG garrison headquarters . ( see ORG : Mr PERSON , \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL ; Mr GPE , \u00a7 \u00a7 DATE ; Mr GPE , \u00a7 \u00a7 DATE ; PERSON , \u00a7 \u00a7 CARDINAL and CARDINAL ; Mr PERSON , LAW ; PERSON , \u00a7 \u00a7 DATE ; PERSON , \u00a7 DATE ; and PERSON , \u00a7 DATE ) .","On that subject , the ORG notes that Mr ORG asserted in his witness evidence ( see GPE , \u00a7 CARDINAL ) that the applicants had stayed on the LOC of ORG for a very short space of time , although he was unable to say exactly how long .","Without casting a general doubt on the testimony of Mr Timoshenko , which it considers to be credible , the ORG considers that it contains a number of details , including those concerning the length of time the applicants spent on the premises of ORG , which are confused , and moreover refuted by other testimony .","The PERSON garrison headquarters were commanded by PERSON . The applicants were detained there one to a cell . A Mr PERSON , arrested at the same time as the applicants , was detained in the same building . While being interrogated or when visited in their cells , the applicants saw Mr PERSON and officers of whom some wore the uniform of ORG . They were interrogated especially at night , the interrogations being accompanied by ill - treatment . They were also beaten at other times . The applicants were struck regularly and severely by soldiers in ORG uniforms . NORP police officers sometimes participated in inflicting ill - treatment on the applicants .","PERSON was subjected to CARDINAL mock executions . The first time , his death warrant was read out to him , whereas on the other occasions he was taken out blindfolded into a field where the warders fired at him with blank cartridges until he fainted .","The second applicant was threatened with rape . After DATE , as a result of the blows he had received , the third applicant was admitted to a psychiatric hospital , where he remained for DATE ( see PERSON : Mr GPE , \u00a7 CARDINAL ) .","The cells had no toilets , no water and no natural light . A light bulb in each cell was lit permanently . The fold - away beds fixed to the wall were lowered at TIME and put back up at TIME .","The applicants had TIME per day for outdoor exercise , in an enclosed area . During their detention at the ORG garrison headquarters , they were not able to wash themselves or change their clothes .","The toilets were along the corridor , and the prisoners were taken there only once a day by guards accompanied by an NORP dog . They had TIME in which to relieve themselves , knowing that the dog would be set on them if they took longer . Since they were taken to the lavatory only once a day under the conditions described above , the applicants had to relieve themselves in their cells ( see PERSON : Mr GPE , \u00a7 CARDINAL ; PERSON , ORG CARDINAL ; PERSON , \u00a7 DATE ; and PERSON , \u00a7 CARDINAL ) .","They were cut off from the outside world . Their families were not permitted to contact them or send them parcels . They were not able to send or receive mail and had no access to lawyers .","On DATE , when General PERSON took command of ORG , the persons detained at the headquarters of the army 's PERSON garrison , including the CARDINAL applicants , were transferred to Tiraspol police headquarters . The transfer was carried out by soldiers of ORG in ORG vehicles ( see ORG : Mr PERSON , LAW ; PERSON , \u00a7 DATE ; and PERSON , \u00a7 DATE ) .","The circumstances of the applicants ' detention , as described in their written depositions and witness evidence , and in the corroborating evidence given by other witnesses ( see Annex : Mr GPE , \u00a7 \u00a7 DATE and DATE ; PERSON , \u00a7 CARDINAL ; and PERSON , \u00a7 \u00a7 DATE ) , are summarised below .","The first applicant remained in a cell at Tiraspol police headquarters for DATE , until DATE , when his trial began .","The second applicant was transferred from the CARDINALth ORG garrison headquarters to PERSON police headquarters , where he remained until DATE , when his trial began .","The third applicant remained for DATE at the CARDINALth ORG garrison headquarters . He was then confined to a psychiatric hospital , where he remained for DATE . On his return from hospital , he was taken back to the CARDINALth ORG garrison headquarters and immediately transferred to PERSON police headquarters , where he was detained until DATE .","The fourth applicant was detained until the beginning of the trial at Tiraspol police headquarters .","In the remand centre at Tiraspol police headquarters , the interrogations took place at TIME . The applicants were regularly beaten there , especially during DATE which followed their return from DATE ORG garrison headquarters .","NORP The cells had no natural light . During DATE , they were not permitted to receive visits from their families or lawyers . Later , permission was granted on a discretionary basis for visits by their families and they began to receive parcels , albeit at irregular intervals . They were often unable to eat the food sent by their families because it had become spoiled during the searches carried out for security reasons . They were not permitted to receive or send mail , and were unable to speak to their lawyers .","During this period , the applicants were only rarely able to see a doctor , and when they had been subjected to ill - treatment the doctor 's visit took place long afterwards .","Hallucinogenic drugs administered to Mr PERSON gave him chronic migraines . During this period he was not treated for his headaches and his wife was not given permission to send him medicines .","Mr PERSON was able to see his lawyer for the first time in DATE , DATE after his arrest .","On a date which has not been specified , the applicants were transferred to ORG in preparation for their trial . While detained pending trial , they were subjected to various forms of inhuman and degrading treatment : they were savagely beaten ; NORP dogs were set on them ; they were held in solitary confinement and fed false information about the political situation and their families ' health as bait to induce them to accept a promise of their release if they signed confessions ; lastly , they were threatened with execution .","PERSON and PERSON were treated with psychotropic substances and as a result Mr GPE experienced mental disorders .","The applicants were brought before the \u201c ORG of GPE , which sat first in the functions room of ORG and later in the concert hall of the PERSON cultural centre . During the trial , which began on DATE and ended on DATE , the only persons authorised to enter the courtroom were NORP nationals with proof of residence in GPE . Armed police and soldiers were present in the hall and on the stage where the judges sat . The applicants appeared at their trial locked inside metal cages . Witnesses were able to attend the trial as they wished , without being required to leave the courtroom while the other witnesses were giving evidence . On numerous occasions during the trial , the applicants were permitted to speak to their lawyers only in the presence of armed police officers . The hearings took place in a tense atmosphere , with placards hostile to the accused displayed by the public . As evidenced by a photograph submitted to ORG by the applicants , taken in the courtroom and published in a NORP newspaper , one of these placards was inscribed with the words \u201c Bring the terrorists to account ! \u201d ( PERSON \u2013 \u043a o\u0442\u0432e\u0442\u0443 ! ) .","The applicants were tried by a CARDINAL - judge bench composed as follows : PERSON , a former judge of ORG , presiding ; PERSON , aged DATE at the time of the trial , who had worked for DATE at the NORP Procurator ORG before being appointed to ORG of the FAC \u201d ; and PERSON .","The judgment records that Commandant PERSON , an ORG officer , appeared as a witness . He told the court that the applicants had not been ill - treated by his subordinates while they were detained on the premises of ORG and that they had not made any complaints .","NORP The court gave judgment on DATE .","It found the first applicant guilty of a number of offences defined in LAW of the Moldovan Soviet GPE , including incitement to commit an offence against national security ( LAW ) , organisation of activities with the aim of committing extremely dangerous offences against ORG ) , murdering a representative of the ORG with the aim of spreading terror ( DATE ) , premeditated murder ( LAW ) , unlawfully requisitioning means of transport ( Article CARDINAL ) , deliberate destruction of another 's property ( Article CARDINAL ) and illegal or unauthorised use of ammunition or explosive substances ( Article CARDINAL ) . It sentenced him to death and ordered the confiscation of his property .","The court found the second applicant guilty of murdering a representative of the ORG with the aim of spreading terror ( DATE ) , deliberate destruction of another 's property ( LAW , and unauthorised use of ammunition or explosive substances ( LAW ) ; it sentenced him to DATE imprisonment in a hard labour camp and confiscation of his property .","The third applicant was found guilty of murdering a representative of the ORG with the aim of spreading terror ( DATE ) , unauthorised use and theft of ammunition or explosive substances ( Articles CARDINAL and CARDINAL - CARDINAL \u00a7 CARDINAL ) , unlawfully requisitioning horse - drawn transport ( Article CARDINAL \u00a7 CARDINAL ) , deliberate destruction of another 's property ( Article CARDINAL ) and assault ( Article CARDINAL \u00a7 CARDINAL ) . He was sentenced to DATE imprisonment in a hard labour camp and confiscation of his property .","The fourth applicant was found guilty of murdering a representative of the ORG with the aim of spreading terror ( DATE ) , assault ( LAW ) , unlawfully requisitioning horse - drawn transport ( LAW ) , deliberate destruction of another 's property ( LAW , and unauthorised use and theft of ammunition or explosive substances ( Articles CARDINAL and CARDINAL - CARDINAL \u00a7 CARDINAL ) . He was sentenced to DATE imprisonment and confiscation of his property .","NORP On DATE the President of GPE declared that the applicants ' conviction was unlawful , on the ground that it had been pronounced by an unconstitutional court .","On DATE the Deputy Attorney - General of GPE ordered a criminal investigation in respect of the \u201c judges \u201d , \u201c prosecutors \u201d and other persons involved in the prosecution and conviction of the applicants in GPE , accusing them under ORG CARDINAL and CARDINAL of LAW of GPE of unlawful arrest .","On DATE ORG examined of its own motion the judgment of DATE of the \u201c ORG of the FAC \u201d , quashed it on the ground that the court which had rendered it was unconstitutional , and ordered the file to be referred to the NORP public prosecutor for a new investigation in accordance with LAW . It appears from the written depositions , the information supplied by ORG and the evidence given by the witnesses heard by the ORG in PERSON in DATE , that the investigation ordered in the judgment of DATE came to nothing ( see PERSON : PERSON , \u00a7 CARDINAL ; and Mr PERSON , \u00a7 CARDINAL ) .","In addition , ORG set aside the warrant for the applicants ' detention , ordered their release and asked the public prosecutor to look into the possibility of prosecuting the judges of the \u201c so - called \u201d ORG of Transdniestria for deliberately rendering an illegal decision , an offence punishable under ORG CARDINAL to CARDINAL of LAW .","The authorities of the \u201c FAC did not respond to the judgment of DATE .","The NORP authorities had opened an investigation into the deaths of Mr PERSON and Mr GPE in DATE and DATE respectively , but the public prosecution service suspended this on DATE , under LAW of LAW , in the absence of any cooperation from the NORP judicial and police authorities . The investigation was reopened on CARDINAL September CARDINAL . As a result , a number of requests for cooperation ( the transmission of documents ) were sent to ORG FAC \u201d , Mr PERSON . Not receiving any reply , the NORP public prosecution service once again suspended the investigation on DATE . Since then it has not been reopened .","By a decree of CARDINAL DATE , the President of GPE promulgated an amnesty law on the occasion of the first anniversary of the adoption of LAW . The amnesty applied in particular to convictions for offences defined in ORG , CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW committed after DATE in several provinces of the left bank of the Dniester .","On DATE the NORP parliament asked ORG to give priority to the problem of the applicants ' detention as political prisoners and keep it regularly informed of developments in the situation and remedial action undertaken , and requested ORG to seek firm support from the countries where GPE had diplomatic missions with a view to securing the release of the applicants ( \u201c the ORG group \u201d ) .","The first applicant , despite being imprisoned , was elected a member of the NORP parliament on DATE and again on DATE but , having been deprived of his liberty , he never took his seat .","On DATE the public prosecutor declared void the order of CARDINAL DATE against the \u201c FAC \u201c judges \u201d and \u201c prosecutors \u201d ( see paragraph CARDINAL above ) , on the ground that there could only be unlawful arrest within the meaning of Articles CARDINAL and CARDINAL of LAW where the relevant measure was taken by judges or prosecutors appointed in accordance with the legislation of GPE , which was not so in the present case . He also stated that in his view it was not appropriate to begin an investigation in respect of false imprisonment or usurpation of the powers or title corresponding to an official office , offences defined in ORG CARDINAL and CARDINAL of the Criminal Code respectively , on the grounds that prosecution was time - barred and that the suspected offenders were refusing to assist the authorities with their enquiries .","On DATE , the public prosecutor ordered a criminal investigation in respect of the governor of FAC on suspicion of false imprisonment and usurpation of the powers or title corresponding to an official office , as defined in ORG CARDINAL and CARDINAL of LAW . It appears from the information supplied by ORG and the statements of the witnesses heard by ORG at PERSON in DATE that this criminal investigation came to nothing ( see PERSON : PERSON , \u00a7 DATE ; and Mr PERSON , \u00a7 MONEY ) .","On DATE , at Mr ORG 's request , the NORP authorities granted him NORP nationality by virtue of PERSON no . CARDINAL\/CARDINAL .","On DATE Mr PERSON was elected to the second chamber of the NORP parliament . Having renounced NORP nationality and his seat in the NORP parliament , he ceased to be a member of parliament on DATE .","In DATE , at their request , Mr PERSON and PERSON were likewise granted NORP nationality .","On DATE Mr PERSON was released . The circumstances of his release , which are disputed , are summarised below ( see paragraphs CARDINAL - CARDINAL ) .","The first applicant , PERSON , was detained in PERSON no . CARDINAL until his conviction , on DATE . He was then transferred to ORG , to the wing for prisoners condemned to death , remaining there until DATE , when he was again transferred to PERSON no . CARDINAL . He stayed there until his release in DATE .","Mr PERSON was transferred after his trial to PERSON no . CARDINAL , where he is still detained .","PERSON was transferred after conviction to ORG , where he probably remained for DATE . Because of his illness , he was first admitted to hospital and then transferred to FAC no . CARDINAL , where he remains to date .","Mr PERSON was transferred shortly before the beginning of his trial to PERSON no . CARDINAL . At some time after Mr PERSON 's release in DATE , Mr PERSON was transferred to ORG , where he stayed until DATE , on which date he was transferred to ORG no . CARDINAL \u201c in order to facilitate contact with his lawyer \u201d , according to the prison service .","From DATE after the applicants ' arrest , ORG granted financial assistance to their families . In addition , the authorities found accommodation for those of the applicants ' families who had been obliged to leave GPE and occasionally gave them help , firstly to visit the applicants , by placing transport at their disposal , and secondly to improve the applicants ' conditions of detention , by sending doctors and supplying them with newspapers ( see PERSON : Mr Snegur , \u00a7 CARDINAL ; Mr NORP , \u00a7 CARDINAL ; and PERSON , \u00a7 CARDINAL ) .","The applicants were detained , except for a few very short periods , alone , each in his own cell , except for PERSON , who was held in solitary confinement only during DATE .","Mr PERSON was always held in solitary confinement . He was not allowed correspondence , but nevertheless managed to send a few letters out of prison .","In FAC , Mr PERSON was detained in the wing for prisoners condemned to death . His conditions of detention were harsher than those of the other applicants . Inside his cell a metal cage of the same dimensions as the cell had been fitted . Inside the cage was the bed and table , also made of metal .","Mr PERSON was not permitted to speak to the other prisoners or the warders . He was therefore taken alone for his DATE walk , which took place in TIME , indoors .","Mr ORG 's food was QUANTITY of rye bread CARDINAL times a day and a glass of tea without sugar twice a day . In TIME he also received a concoction called \u201c balanda \u201d whose main ingredient is kibbled maize .","The applicants ' cells had no natural light : the only light \u2013 from an electric bulb in the corridor \u2013 entered each cell through an opening cut out in the door .","The applicants could only rarely take showers and had to go DATE without washing .","None of the cells occupied by Mr PERSON during his detention was heated , even in DATE .","ORG Both in GPE and in PERSON , the applicants had cold water in their cells , which were equipped with toilets that were not separated off from the rest of the cell .","The applicants were able to receive parcels and visits from their families , although the relevant authorisation was not systematically given by the prison governors .","At times , authorisation to receive visits or parcels was refused on the orders of PERSON or PERSON \/ GPE .","As parcels were searched , any food in them sometimes became unfit for consumption . To protest about the insufficient quantity of food served to them in prison , the authorities ' occasional refusal to distribute to them the food brought by their families and the fact that this food was being spoiled in the checking process , the applicants went on several hunger strikes .","In DATE Mr PERSON was allowed visits by PERSON , a member of ORG of ORG , and by PERSON , the Chairman of ORG .","In a letter sent in DATE to the NORP parliament about the governmental crisis facing GPE , Mr PERSON declared his support for Mr PERSON as candidate for the post of Prime Minister . His letter was read out from the rostrum by the President and enabled ORG to put together the majority required in order to appoint Mr PERSON as Prime Minister .","In DATE , following his vote for the Sturza government and during DATE that government lasted , Mr PERSON was not allowed any visits from his family or any parcels . The other applicants , particularly Mr GPE , suffered similar restrictions .","NORP In a letter to the ORG dated DATE , Mr PERSON wrote that since Mr PERSON 's letter to the NORP parliament the applicants ' conditions of detention , and those of Mr PERSON in particular , had deteriorated .","In a letter of CARDINAL DATE , Mr GPE informed the public that he had begun a hunger strike to protest about the harsh conditions in which he and his companions were detained . He pointed out , for example , that he could not contact a lawyer and that he was not permitted to receive visits from doctors or ORG representatives . He argued that the passivity of the GPE authorities in the face of the situation in GPE , and particularly that of the ORG group , amounted to tacit support for the NORP authorities .","In a written statement of CARDINAL DATE Mr GPE , who was on DATE of his hunger strike , accused the leaders in PERSON of doing nothing to protect human rights in GPE and of \u201c having a good time \u201d with the separatist leaders of GPE . He also complained of the PERSON prison authorities ' refusal to allow himself and Mr PERSON access to a doctor and said that Mr PERSON , who had been held in solitary confinement for a lengthy period , was being ill - treated . All the furniture had been taken out of his cell , his clothes had been taken away from him except for a vest and he was repeatedly beaten by members of the \u201c special forces \u201d , who kept suggesting that he should kill himself .","In a letter to ORG DATE , Mr PERSON pointed out that he had not been able to consult a doctor since DATE . Doctors who had made the journey from PERSON at that time had examined him and written a report on his state of health , which they described as serious . In the same letter , he accused the authorities of GPE of hypocrisy , alleging that in spite of their calls for the applicants ' release they were doing everything they could to prevent them from regaining their liberty .","On DATE the applicants ' representative , PERSON , informed the ORG that the conditions of detention of the CARDINAL applicants still incarcerated had deteriorated since DATE . Mr PERSON had been refused a visit by his wife , without any explanation .","Mr PERSON and PERSON began to receive only bread for food . Mr PERSON was transferred to ORG where , in conditions of total isolation , he was told that he would not be permitted any visits for DATE .","With the exception of Mr ORG , the applicants were permitted correspondence in NORP ; letters in NORP were forbidden . Their mail was censored . They could not as a general rule receive newspapers in NORP .","Mr PERSON was refused a visit from his wife on DATE . The visit was allowed to go ahead DATE .","At the witness hearings before the delegates of ORG in PERSON in DATE , the NORP prison service undertook to allow the applicants ' lawyers to meet their clients detained in GPE . PERSON was able to see his client , PERSON , for the first time on a date which has not been specified , in DATE or DATE . Mr PERSON was able to meet his clients for the first time since their incarceration on DATE .","The ORG has established the conditions under which the applicants ' medical examinations were conducted on the basis of the witness evidence and other documents in its possession , including the registers of medical consultations kept in the places of the applicants ' detention .","In general , the ORG notes that , during their detention the applicants ' health deteriorated .","They were able to see , at their request , the prison doctor , who in most cases restricted his examination to palpation and auscultation .","PERSON , although suffering from acute arthritis , pancreatitis and a dental abscess , was refused permission to see a doctor . His eyesight also deteriorated .","In DATE , however , PERSON was taken to hospital in PERSON and operated on for his pancreatitis .","With few exceptions , the applicants ' illnesses were not treated . The only medicines they were given were the medicines sent by their families . The prison \u201c authorities \u201d cited security grounds as the reason for not allowing the applicants to receive the pharmaceutical information notes accompanying these medicines .","After negotiations with the GPE authorities , and above all after the intervention of President PERSON , the NORP prison authorities allowed specialists from PERSON to examine the applicants . Thus , on several occasions DATE , the applicants were examined by a medical commission from GPE , which included Mr PERSON and Mr PERSON . In DATE the visits took place from DATE , and again in DATE .","On CARDINAL occasion , Mr PERSON was able to have an electrocardiogram ; Mr GPE was operated on for liver disease ; Mr PERSON had an injection for his tuberculosis and was prescribed treatment .","The examinations took place in the presence of prison doctors and warders . The medicines prescribed by the NORP doctors , as recorded in the prison medical registers , were not supplied , the only medicines received by the applicants being those brought by their families .","On CARDINAL occasions , Mr PERSON was allowed to be examined by ORG doctors .","Mr PERSON , who was suffering from tuberculosis , was treated for DATE , until DATE . However , most of the medicines were provided by his family .","None of the applicants was able to obtain dietetically appropriate meals , although these had been prescribed by doctors , in Mr PERSON 's case for his disorder of the digestive tract , in Mr PERSON 's case for his liver disease , in PERSON case for the consequences of his pancreatitis and in PERSON case for his tuberculosis .","PERSON , Mr PERSON and PERSON said they suffered from pancreatitis , liver disease and tuberculosis respectively and were not receiving the appropriate treatment .","Mr PERSON now occupies the same cell in FAC Mr ORG was in before his release , although there is a special wing there for prisoners with tuberculosis . Since the entry into force in DATE of the new NORP Code of Criminal Procedure , PERSON conditions of detention in ORG have improved , since he can receive CARDINAL extra parcels and CARDINAL extra visits per year . The improvement was ordered by the governor of ORG in the light of the applicant 's good conduct .","During DATE of his detention in GPE , Mr PERSON was ill - treated several times .","On the slightest pretext , Mr PERSON was removed to a disciplinary cell .","After his transfer to ORG no . CARDINAL , Mr ORG 's situation improved slightly in that he was not punished so frequently as at ORG and was ill - treated only after certain events .","For example , after the publication in the press of an article about the applicants , prison warders entered the cells of Mr PERSON and Mr PERSON and confiscated or destroyed all the objects they found there . They beat the applicants severely and placed them in disciplinary cells for TIME .","The cells of Mr PERSON and Mr PERSON were smashed up after PERSON ORG had voted for the NORP government in DATE , and after the lodging of their application to the ORG . The objects destroyed included personal effects such as photographs of the applicants ' children and icons . They were also savagely beaten .","After lodging his application with the ORG , Mr PERSON was beaten by soldiers who kicked him and hit him with rifle butts . He then had a pistol placed in his mouth and was threatened with death if he ever tried to send letters out of the prison again . On that occasion he lost a tooth .","In the above - mentioned letter of CARDINAL DATE , PERSON said that on DATE hooded civilians had entered his cell , struck him with a stick on his head , his back and over his liver and punched him repeatedly over his heart . They had then dragged him into the corridor , where he saw CARDINAL Colonel GPE in the act of banging PERSON head against a wall and kicking him . Colonel GPE had then put a pistol into Mr PERSON 's mouth and threatened to kill him . Colonel PERSON had told the applicants that this assault had been prompted by their application to ORG . In the same letter , PERSON urged the NORP parliament and Government , the international media and human rights protection organisations to intervene in order to halt the torture to which he and the other CARDINAL applicants were being subjected .","Following these events , as appears from a letter of CARDINAL DATE sent to ORG by PERSON representative , the applicants were denied food for DATE and light for DATE .","Mr PERSON 's cell in FAC was smashed up on other occasions , in DATE and on or around DATE .","The negotiations between GPE and GPE about the withdrawal of NORP forces from GPE , during which the settlement of the NORP question was also mentioned , never covered the applicants ' situation . However , in discussions between the NORP President and the President of GPE , the NORP side regularly raised the question of the applicants ' release ( see PERSON : Y , \u00a7 CARDINAL ) .","In the context of the creation by the NORP side of a commission to examine the possibility of pardoning all persons convicted and detained in GPE as a result of judgments delivered by the NORP courts ( see PERSON : Mr Sturza , \u00a7 \u00a7 CARDINAL and CARDINAL ) , the GPE authorities obtained a promise of the applicants ' release . In that context , the GPE Deputy Attorney - General , PERSON , went to PERSON several times to negotiate the applicants ' release , even meeting PERSON ORG in DATE in ORG .","Mr PERSON went CARDINAL last time to PERSON on DATE in order to bring the applicants back to PERSON , but without success . It was only on DATE that Mr PERSON was released ( see paragraph CARDINAL below ) .","In a letter of DATE , the President of GPE , PERSON GPE , and the head of the LOC mission in GPE , PERSON , asked PERSON to release the applicants for humanitarian reasons .","On DATE the new President of GPE , PERSON , again asked PERSON to release the applicants on humanitarian grounds .","From the beginning of the negotiations with the NORP , the question of the applicants ' situation was regularly raised by the NORP authorities . In particular , discussions on this point took place with representatives of the \u201c prosecution service of the FAC \u201d , the \u201c ORG of the FAC \u201d and the \u201c Minister of Justice of the FAC \u201d , and with PERSON .","The applicants submitted to the ORG a note verbale dated DATE to the NORP embassy in GPE , in which ORG of GPE drew ORG attention to the fact that the memorial they had filed with ORG in DATE gave a subjective assessment of GPE 's role in the case of the ORG group and in no way reflected \u201c the friendly character of relations between GPE and the NORP Federation \u201d . The note continued :","\u201c Examination of the memorial by ORG of ORG , due to take place on DATE , may cause serious prejudice to the interests of GPE and GPE .","In that context , the NORP side , relying on the agreement reached by the heads of the diplomatic services of the CARDINAL countries with regard to the need to withdraw the memorial concerned , urges the Government of GPE to take all the necessary steps to ensure the withdrawal of this document before DATE and to inform ORG and GPE 's representative to that organ of the fact officially . \u201d","Mr PERSON said that at TIME on DATE PERSON , also known as PERSON , the NORP \u201c Minister of Security \u201d , entered his cell and told him to get dressed quickly because he was to be presented to the \u201c President of the FAC \u201d . The applicant left all his personal effects in the cell and was placed in a car attached by handcuffs to CARDINAL soldiers . PERSON also got in the car . The applicant was driven to GPE and there , QUANTITY away from the presidential palace , he was handed over to the head of the NORP secret service , PERSON . The applicant asserted that Mr GPE had read out in front of Mr P\u0103sat his transfer document , worded as follows : \u201c The prisoner PERSON , who has been sentenced to death , is transferred to the competent organs of GPE . \u201d After handing over this document , Mr GPE allegedly declared that the sentence remained valid and would be enforced if Mr PERSON returned to GPE .","NORP special forces then took the applicant to ORG , where he was questioned briefly before being released .","On DATE ORG informed the ORG that the President of GPE , PERSON , had learned of PERSON ORG 's release from a letter sent to him by Mr PERSON on DATE . In that letter , Mr PERSON requested that in return for the NORP authorities ' gesture , GPE should condemn \u201c its DATE aggression against the NORP people \u201d , make full reparation for the pecuniary damage sustained by the \u201c FAC as a result of the aggression , and present its \u201c apologies to the NORP people for the pain and suffering caused \u201d .","In a letter of DATE , ORG submitted to the ORG copies of several decrees signed by PERSON , the \u201c President of the FAC \u201d .","Decree no . CARDINAL , signed on DATE , provided for a moratorium on enforcement of the death penalty within the territory of the \u201c FAC \u201d from DATE . This moratorium was apparently also applicable to judgments rendered before that date , but not enforced by the time of the decree 's entry into force , which was to coincide with its signature and publication in ORG . Decree no . CARDINAL , signed by Mr PERSON on DATE , granted a pardon to Mr PERSON and ordered his release . The decree came into force on DATE of its signature .","ORG made no comment on the subject of Mr ORG 's alleged transfer , but merely submitted to ORG PERSON 's decree concerning the applicant . Nor did they comment on the decree 's authenticity . They added nevertheless that they had heard rumours to the effect that , before signing the decree in question , PERSON PERSON had commuted the death sentence imposed on Mr PERSON to CARDINAL of life imprisonment .","Mr PERSON asserted that Mr PERSON 's decree was a forgery created after his release . He maintained that , in spite of his release , his conviction remained valid and that if he returned to GPE he would be liable to the death sentence .","The ORG has only the allegations of Mr PERSON , a copy of PERSON PERSON 's \u201c decree \u201d of CARDINAL DATE and ORG assertions of a commutation of the sentence . None of these different accounts is corroborated by other evidence and the ORG can see no objective element capable of persuading it to accept one version rather than another . Consequently , the ORG considers that as the evidence before it stands at present , it is not able to reach a conclusion as to the reasons and legal basis for Mr PERSON 's release .","After Mr PERSON 's release , the representative of PERSON submitted in a letter received by ORG on DATE that this release had been prompted by the NORP authorities ' intercession with the NORP authorities . He asserted that , in an interview given to the NORP public radio station ORG , the NORP Minister for ORG , Mr PERSON , had stated : \u201c PERSON was released following the intervention of the NORP Minister for ORG , PERSON , who , at the request of GPE 's President PERSON , spoke to the PERSON authorities on this subject over the telephone . He explained to them that this is an international problem affecting the honour of GPE and GPE . \u201d Mr ORG apparently went on to say that he had met PERSON to try to convince him that \u201c the application to ORG could not be withdrawn because PERSON ORG was a prisoner of conscience , a hostage of the DATE conflict \u201d .","At the hearing on DATE , ORG thanked those who had contributed to Mr PERSON 's release , in particular GPE , and stated that they wished to modify the position they had previously adopted in the observations of DATE , particularly as regards the responsibility of GPE . They explained this decision by their desire to avoid undesirable consequences , such as tension or the end of the process aimed at finding a peaceful solution to the NORP dispute and securing the release of the other applicants .","After Mr PERSON 's release , meetings between him and the NORP authorities took place to discuss the prospects for the release of the other applicants .","At a press conference which he gave on DATE , the President of GPE , PERSON , declared : \u201c Mr PERSON is the person who is keeping his comrades detained in PERSON . \u201d He pointed out in that connection that he had suggested to Mr PERSON that he should withdraw his application to the ORG against GPE and GPE , in exchange for which the other applicants would be released before DATE , but that PERSON ORG had refused to do so . According to the NORP press agency GPE - press , PERSON also suggested that if Mr PERSON won his case before the ORG that would make the release of the other applicants more difficult .","NORP In a report of DATE written at the request of the ORG 's ORG by Mr PERSON , Professor of Criminal Law and Human Rights at ORG , and Mr PERSON , of the LOC , following a fact - finding visit to GPE , the applicants ' trial before ORG of the FAC \u201d was analysed from the point of view of respect for fundamental rights . The authors noted serious infringements of the defendants ' rights , which included the lack of any contact with a lawyer during DATE after their arrest , very limited access thereafter , infringement of the right to be tried by an impartial tribunal , in that the court had refused to examine the applicants ' allegations that their confessions had been wrung from them by inhuman treatment , and infringement of the right enshrined in LAW , in that the applicants ' trial had been conducted according to an exceptional procedure which denied them any right to an appeal .","Lastly , the authors described the trial as \u201c a political event from beginning to end \u201d . They concluded that some of the terrorism charges preferred against the applicants on the basis of LAW of the NORP era would be considered merely free speech issues in modern democracies .","On DATE the President of ORG and the Secretary General of ORG appealed to the separatist authorities in GPE to permit ORG ( ICRC ) to visit the applicants and called for an immediate improvement in their conditions of detention .","While in GPE on DATE and DATE , during a visit to GPE from DATE , ORG Commissioner for Human Rights asked the NORP authorities for permission to see Mr PERSON in order to check his conditions of detention . Permission was refused on the ground that , for lack of time , it had not been possible to obtain the necessary authorisations .","In DATE , following its visit to GPE , including the region of GPE , ORG for ORG Treatment or Punishment ( ORG ) produced its report . On the question of the situation in GPE 's prisons , the ORG drew attention to severe overcrowding and expressed its concern about the practice of keeping certain prisoners in solitary confinement for long periods and about the inadequate level of treatment for sick prisoners , indeed the total absence of treatment for tuberculosis patients , including the possibility of receiving dietetically appropriate meals .","The ORG pointed out that the situation in NORP penitentiary establishments in DATE left a great deal to be desired , especially at FAC , where the conditions of detention were deplorable : poor ventilation , insufficient natural light , inadequate sanitary facilities and overcrowding .","On the situation of the applicants in particular , the ORG said that CARDINAL members of the ORG group had been detained for DATE under conditions of solitary confinement which were having harmful psychological consequences for CARDINAL of them . The ORG went on to say that solitary confinement could , in certain circumstances , amount to inhuman and degrading treatment and that in any event solitary confinement for DATE was indefensible . The ORG asked the NORP authorities to relax the conditions of detention of the CARDINAL members of the ORG group held in solitary confinement by allowing them access to the newspapers of their choice and by ensuring that they could receive visits from their families and lawyers .","The doctors in the ORG delegation were able to examine CARDINAL of the CARDINAL applicants , including Mr ORG . They recommended that he be given appropriate medical treatment for his illness .","The ORG reported accounts of beatings in DATE allegedly inflicted on members of the ORG group imprisoned in PERSON by masked individuals .","The relevant provisions of LAW of DATE read as follows :","\u201c We , GPE , GPE ( RSFSR ) and GPE , as founder ORG and signatories of ORG of DATE , hereinafter referred to as the ' High Contracting Parties ' , hereby declare that the GPE as a subject of international law and a geopolitical reality no longer exists .","On the basis of the historical commonality of our peoples and the ties that have developed between them , and bearing in mind the bilateral agreements concluded between the High Contracting Parties ,","Desirous of setting up lawfully constituted democratic GPE ,","Intending to develop our relations on the basis of mutual recognition of and respect for State sovereignty , the inalienable right to self - determination , the principles of equality and non - intervention in internal affairs , of abstention from the use of force and from economic or other means of applying pressure and of settling controversial issues through agreement and other universally recognised principles and norms of international law ,","...","Confirming our adherence to the purposes and principles of the LAW of ORG , LAW and the other documents of ORG ,","Undertaking to abide by the universally recognised international norms relating to human and peoples ' rights ,","We have agreed as follows :","The High Contracting Parties hereby establish ORG .","...","NORP The member GPE will cooperate in safeguarding international peace and security and implementing effective measures for the reduction of armaments and military expenditures . ...","The Parties will respect each other 's efforts to achieve the status of a nuclear - free zone and a neutral ORG .","NORP The member GPE will maintain , and retain under joint command , a common military and strategic space , including joint control over nuclear weapons , the procedure for implementing which will be regulated by a special agreement .","They also jointly guarantee the necessary conditions for the deployment and functioning and the material and social security of the strategic armed forces . ...","The High Contracting Parties undertake to discharge the international obligations incumbent on them under treaties and agreements entered into by the former GPE . \u201d","On DATE the GPE 's Permanent Representative to ORG , Ambassador PERSON , communicated to the Secretary - General of ORG a letter from the President of GPE , PERSON , worded as follows :","\u201c The GPE 's membership of ORG , including ORG and all the other organs and organisations of the ORG system , is continued by GPE ( RSFSR ) with the support of the countries of ORG . In that connection , I request that the name \u201c GPE \u201d be used at ORG in place of ORG LOC \u201d . ORG assumes full responsibility for all the GPE 's rights and obligations under LAW , including financial undertakings . Please consider this letter confirmation of the right of all persons currently holding the status of GPE representatives to ORG to represent GPE in the organs of ORG . \u201d","On DATE the President of GPE , Mr PERSON , and the President of ORG , Mr PERSON , signed in GPE an agreement concerning principles for a friendly resolution of the armed conflict in the NORP region of GPE , which provided :","\u201c GPE and GPE ,","Desiring to bring about as rapidly as possible a final ceasefire and settlement of the armed conflict in the NORP regions ;","Endorsing the principles enshrined in the LAW of ORG and those of ORG ;","Noting that , on DATE , the President of GPE and the President of the Russian Federation reached agreement on principles ,","Have agreed as follows :","The parties to the conflict undertake , on signature of the present agreement , to take all necessary steps to implement the ceasefire , and a cessation of any other armed action against the other party .","As soon as the ceasefire has taken effect the parties will withdraw their armies , weapons and military equipment within DATE . Withdrawal of the CARDINAL armies will permit the establishment of a security zone between the parties to the conflict . The exact boundaries of the security zone will be determined in a special protocol agreed between the parties on implementation of the present agreement .","A specially created commission , composed of representatives of the CARDINAL parties to the settlement of the conflict , will have responsibility for verifying implementation of the measures provided for in DATE above and ensure that a security regime is enforced within the security zone . To that end , the commission will have recourse to the groups of military observers brought in under previous agreements , including quadripartite agreements . The control commission will complete its work within DATE of signature of the present agreement .","Each party will appoint its representatives to the commission . The control commission will sit in PERSON .","With a view to implementing the measures mentioned above , the control commission will take under its orders the military contingents of volunteers representing the parties participating in the implementation of the present agreement . The positions to be occupied by these contingents and their interventions to maintain the ceasefire and ensure security in the conflict in the region will be determined by the control commission , which must reach a consensus in this regard . The size of the military contingents , their status and the conditions for their intervention in and withdrawal from the security zone will be laid down in a separate protocol .","In the event of breaches of the provisions of the present agreement , the control commission will carry out inquiries and take without delay the necessary steps to re - establish peace and order , and appropriate measures to prevent future breaches .","As the seat of the control commission , and in view of the seriousness of the situation , PERSON is hereby declared a region subject to a security regime , enforcement of security being the task of the military contingents of the parties to implementation of the present agreement . The control commission will ensure the maintenance of public order in PERSON , acting together with the police .","ORG will be administered by the organs of local self - government , where necessary acting together with the control commission .","GPE ORG , stationed in the territory of GPE , will observe strict neutrality . Both parties to the conflict undertake to observe neutrality and not to engage in any action against ORG property , its personnel or their families .","All questions relating to ORG status or the stages and timetable for its withdrawal will be settled by negotiations between GPE and GPE .","The parties to the conflict consider sanctions or blockades of any kind unacceptable . Accordingly , all obstacles to the free movement of goods , services and persons shall be removed , and all necessary measures will be taken to put an end to the state of emergency in the territory of GPE .","NORP The parties to the conflict will enter without delay into negotiations to solve problems relating to the return of refugees to their homes , aid to the population of the conflict - stricken region and reconstruction of housing and public buildings . GPE will lend its full support to that end .","The parties to the conflict will take all necessary steps to ensure the free movement of humanitarian aid intended for the conflict - stricken region .","A common press centre will be created with the task of providing the control commission with correct information about developments in the situation in the region .","The parties consider that the measures provided for in the present agreement form a very important part of the settlement of the conflict by political means .","The present agreement will come into force on DATE of its signature .","The present agreement shall cease to have effect by a joint decision of the parties or in the event of denunciation by CARDINAL of the parties , which will entail cessation of the activities of the control commission and the military contingents under its orders . \u201d","On DATE the NORP parliament ratified PERSON of DATE by which GPE had joined the ORG , with the following reservations :","\u201c ...","Article CARDINAL , with the exception of paragraphs CARDINAL and CARDINAL ...","ORG considers that within the CIS GPE will make economic cooperation its priority , excluding cooperation in the political and military sphere , which it considers incompatible with the principles of sovereignty and independence . \u201d","The relevant provisions of LAW of DATE provide :","\u201c CARDINAL . GPE proclaims its permanent neutrality .","GPE shall not authorise the stationing in its territory of troops belonging to other GPE . \u201d","\u201c CARDINAL . A form of autonomy under special conditions may be granted to areas on the left bank of the Dniester and in the south of GPE by virtue of a special status authorised by means of an institutional act ... \u201d","The relevant provisions of the Moldovan Criminal Code provide :","\u201c False imprisonment shall be punished by imprisonment for DATE .","False imprisonment which has endangered the life or health of the victim or caused him or her physical suffering shall be punished by imprisonment for DATE . \u201d","\u201c Usurpation of the powers or title corresponding to an official office , if perpetrated in order to further the commission of an offence , shall be punished by a fine of up to CARDINAL times the minimum monthly salary or DATE labour or DATE imprisonment . \u201d","On DATE GPE and GPE signed an \u201c Agreement concerning the legal status of the military formations of GPE temporarily present in the territory of GPE and the arrangements and time - limits for their withdrawal \u201d , whose main provisions are worded as follows :","\u201c GPE and GPE , hereinafter referred to as ' the Parties ' , with the participation of the region of GPE ,","Having regard to the new political relations established in LOC and throughout the world ;","Confirming that GPE and GPE are sovereign and independent GPE ;","Convinced that they must ground their relations on principles of friendship , mutual understanding and cooperation ;","Proceeding from agreements the Parties have already reached in the military sphere ;","Acting in accordance with the documents adopted at the Conference for Security and Cooperation in LOC ,","Have agreed as follows :","...","The status of the military formations of GPE in the territory of GPE is determined by the present Agreement .","The stationing of military formations of GPE within the territory of GPE is an interim measure .","Subject to technical constraints and the time required to station troops elsewhere , the NORP side will effect the withdrawal of the above - mentioned military formations within DATE from the entry into force of the present Agreement .","The practical steps taken with a view to withdrawal of the military formations of GPE from NORP territory within the time stated will be synchronised with the political settlement of the NORP conflict and the establishment of a special status for the NORP region of GPE .","The stages and timetable for the final withdrawal of the military formations of GPE will be laid down in a separate protocol , to be agreed between the Parties ' ORG .","...","For as long as NORP military formations remain in the territory of GPE , no recourse may be had to them with a view to the solution of an internal conflict within GPE , or for other military actions against third countries .","The sale of any type of military technology , armaments and ammunition belonging to the military formations of GPE in the territory of GPE may take place only after a special agreement between the governments of the CARDINAL countries .","Movements and military investigations by the military formations of GPE in the territory of GPE outside their bases will take place in accordance with a plan drawn up by agreement with the relevant organs of GPE .","It is the responsibility of military formations to ensure , both inside their bases and during movements outside , that military objects and property are guarded in the manner prescribed within the NORP army .","Tiraspol military airport will be used as the joint base of the aviation of the military formations of GPE and the civil aviation of the NORP region of GPE .","Movement of military aircraft inside the airspace of GPE is to take place on the basis of a special agreement concluded between the Parties ' Ministries of the Interior .","...","Accommodation and barracks , service buildings , vehicle parks , firing ranges and fixed machine tools , stores and the tools they contain , buildings and other LOC left unoccupied as a result of the withdrawal of the military formations of GPE will be transferred for management to the organs of the local public administrative authorities of GPE in the quantity existing de facto and in the condition they are in .","The manner of the transfer or sale of the immovable property of the military formations of GPE will be determined in a special agreement to be concluded between the governments of the Parties .","...","With a view to ensuring the withdrawal of the military formations of GPE from the territory of GPE within the time stated , and their effective operation in their bases within the territory of GPE , the premises needed for the installation of the military formations will be moved . The amount of money to be paid , the list of premises to be reconstructed and the place where they are to be installed will be determined in a special agreement .","...","The present Agreement will come into force on DATE last notification by the Parties concerning implementation of the necessary internal procedures , and will remain in force until the total withdrawal of NORP military formations from the territory of GPE .","The present Agreement will be registered with ORG in accordance with LAW . \u201d","On DATE an agreement was reached in GPE between ORG of GPE and GPE on flights by the aviation of NORP military units temporarily located in the territory of GPE ; this provided for use of PERSON airport by transport planes of the armed forces of GPE . The relevant parts of that agreement provide :","\u201c PERSON military airport will be used by the military units of GPE until their definitive withdrawal from the territory of GPE .","Movement and joint flights at Tiraspol airport by the civil aviation of the region of GPE belonging to GPE and NORP aircraft will take place in accordance with the ' Provisional rules on the joint dispersed aviation of the military formations of GPE and the civil aviation of the region of GPE of GPE , and in coordination with the ORG civil aviation authority of GPE , ORG of GPE and ORG of GPE .","Other aircraft may take off from PERSON airport only after coordination with the ORG aviation authorities of GPE and ORG of GPE . \u201d","\u201c The postal aircraft belonging to the NORP units may take off from PERSON airport twice a week at most ( on DATE , or on DATE after prior coordination between the Parties ) . \u201d","Requests by the aviation of the armed forces of GPE to carry out flying tuition , training flights and flyovers are to be presented before TIME ( local time ) through the air traffic coordination bodies ( control centres ) .","Confirmation of such requests and the authorisations needed for use of GPE airspace will be issued by the anti - aircraft defence and aviation control centre of ORG . The decision concerning the use of GPE airspace , in accordance with the flight request , in the areas where the NORP units are temporarily stationed will be taken by the Chief of ORG . \u201d","\u201c Monitoring of the implementation of the present agreement will be carried out by the representatives of ORG and GPE , in accordance with the special rules drawn up jointly by them . \u201d","\u201c The present agreement will come into force on the date of its signature and will remain valid until the definitive withdrawal of the military units of GPE from the territory of GPE .","The present agreement may be amended with the mutual consent of the Parties . \u201d","The instrument of ratification of the Convention deposited by GPE with ORG on DATE contains a number of declarations and reservations , the relevant part being worded as follows :","\u201c CARDINAL . GPE declares that it will be unable to guarantee compliance with the provisions of the Convention in respect of omissions and acts committed by the organs of the self - proclaimed NORP - Dniester republic within the territory actually controlled by such organs , until the conflict in the region is finally settled .","... \u201d","On DATE the representative of GPE , PERSON PERSON , and the representative of the \u201c FAC , PERSON , signed in GPE ( GPE ) an agreement on questions relating to military property , worded as follows :","\u201c At the close of negotiations on questions relating to military property linked to the presence of the NORP forces in GPE , agreement has been reached on the following points :","All the property concerned is divided into CARDINAL categories :","( a ) the first category includes the standard - issue weapons of ORG of NORP forces , its ammunition and its property ;","( b ) the second includes weapons , ammunition and surplus movable military property which must imperatively be returned to GPE ;","( c ) the third includes weapons , ammunition and military and other equipment which can be sold ( decommissioned ) directly on the spot or outside the places where they are stored .","Revenue from the sale of property in the third category will be divided between the parties in the following proportions :","GPE : PERCENT","Transdniestria : PERCENT , after deducting the expenses arising from the sale of military property in the third category .","Conditions for the use and transfer of property in the third category shall be laid down by GPE with the participation of GPE .","NORP The parties have agreed to pay their debts to each other in full on DATE by offsetting them against the income from the sale of military property or from other sources .","GPE will continue to withdraw from GPE the military property essential to the requirements of the NORP armed forces as defined in the annex to the present agreement . The NORP authorities will not oppose the removal of this property .","NORP In agreement with GPE , GPE will continue to destroy the unusable and untransportable ammunition near to the village of Kolbasna with due regard for safety requirements , including ecological safety .","To ensure the rapid transfer of the immovable property , the representatives of GPE and GPE have agreed that the LOC vacated by the NORP forces may be handed over to the local authorities in GPE in accordance with an official deed indicating their real value .","It is again emphasised that the gradual withdrawal of NORP armed forces stationed in GPE and the removal of their property will be effected transparently . Transparent implementation of the withdrawal measures can be ensured on a bilateral basis in accordance with the agreements signed between GPE and GPE . The essential information on the presence of the NORP forces in GPE will be transmitted in accordance with the current practice to the LOC , through the LOC mission in PERSON . \u201d"],"violated_articles":["3","34","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":["5-1-a"],"non_violated_articles":["3","5","P1"],"non_violated_paragraphs":["5-1","P1-1"],"non_violated_bulletpoints":["5-1-a"],"violated":true}
{"itemid":"001-89371","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2008,"docname":"BLAHA AND BLAHOVA v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicants issued proceedings before ORG ( okresn\u00ed soud ) against a private company claiming damages in the amount of CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) . On DATE they paid court fees .","On DATE ORG found that it lacked material competence to deal with the applicants ' case and transmitted it to ORG ( krajsk\u00fd obchodn\u00ed soud ) .","On DATE the defendant filed a counterclaim requesting payment of CZK CARDINAL,CARDINAL ( EUR CARDINAL ) .","In a judgment of CARDINAL DATE ORG dismissed the action in respect of the second applicant . It granted , at the same time , the defendant 's counterclaim ordering her to pay CZK MONEY to the defendant . It further decided to split the first applicant 's claim and the defendant 's counterclaim brought in the first applicant 's respect for a separated hearing .","On DATE ORG found that ORG was materially competent to deal with the action in respect of the first applicant as well as with the defendant 's counterclaim , and remitted the case to it .","On DATE ORG suspended the proceedings until the delivery of a final judgment in the proceedings concerning the second applicant 's action .","In a judgment of CARDINAL DATE ORG dismissed the applicant 's action and partly granted the defendant 's counterclaim .","The applicant appealed . It appears that the proceedings are still pending .","On DATE the second applicant appealed to ORG ( vrchn\u00ed soud ) .","On DATE ORG , upon the defendant 's request of DATE , commenced execution proceedings ordering the applicant to pay CZK MONEY ( EUR CARDINAL ) with interests on late payment to the defendant .","On DATE ORG discontinued the execution proceedings in respect of the interests on late payment and ordered the enforcement of ORG judgment by sale of the second applicant 's property . It dismissed the applicant 's request to postpone the execution .","On DATE the first applicant filed an appeal against this decision . On DATE the second applicant appealed .","On DATE ORG ( krajsk\u00fd soud ) rejected the first applicant 's appeal on the ground that he was not a party to the proceedings before it . It discontinued the proceedings in respect of the second applicant 's appeal , and upheld the first CARDINAL grounds of the decision while quashing ORG dismissal to suspend the execution . The latter part of the case was therefore sent back to ORG for further consideration .","It appears that the execution proceedings are still ongoing .","On DATE the second applicant claimed material damages allegedly caused by activities of the organs of judicial power , pursuant to Act no . CARDINAL\/CARDINAL then in force . Subsequently , ORG informed the applicant that her claim had been rejected . According to the applicant , ORG had admitted that there had been delays in the proceedings before ORG and ORG but had denied any causal link between the material damage alleged by the applicant and delays in the proceedings .","On DATE the second applicant brought an action for damages against ORG pursuant to section CARDINAL(CARDINAL ) of Act no . CARDINAL\/CARDINAL then in force maintaining that the proceedings brought against the private company in DATE had lasted an unreasonably long time .","In a judgment of DATE ORG dismissed her action .","On DATE ORG ( krajsk\u00fd soud ) upheld the merits of the first instance court 's judgment .","Section PERSON ) as in force until DATE provided that the ORG was liable for damage caused by an irregularity in the conduct of proceedings , including non - compliance with the obligation to perform an act or give a decision within the statutory time - limit . Under section CARDINAL ) a person who had suffered loss on account of such an irregularity was entitled to damages .","On DATE CARDINAL Act no . DATE entered into force amending , inter alia , section CARDINAL(CARDINAL ) which newly provides that the ORG is liable for damage caused by an irregularity in the conduct of proceedings , including non - compliance with the obligation to perform an act or give a decision within the statutory time - limit . If the law does not fix a time - limit for these purposes , it is considered that a violation of the duty to perform the act or give the decision within a reasonable time - limit is also considered as an irregularity in the conduct of proceedings . When using the notion of \u201c reasonable time \u201d , the LAW refers to ORG and CARDINAL of the Convention .","Act no . DATE also introduced a new section CARDINALa which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non - compliance with the obligation to perform an act or to adopt a decision within a reasonable time ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61583","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2004,"docname":"CASE OF D.P. v. POLAND","importance":3,"conclusion":"Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant was taken into custody by the police . On DATE ORG PERSON ) dismissed his complaint about placing him in police custody .","On DATE ORG ) charged the applicant with aggravated fraud and remanded him in custody . The charges related to a period DATE when the applicant , together with his accomplices , allegedly defrauded several individuals and businesses by obtaining from them under false pretences cash , automobiles , furniture , computers and other goods of a total value of ORG . In addition , the applicant was charged with possession of a forged passport . ORG considered that the applicant \u2019s detention on remand was warranted by the fact that he was charged with several criminal acts which caused a significant danger to society ( stopie\u0144 spo\u0142ecznego niebezpiecze\u0144stwa jest znaczny ) , as he had acted within a criminal organisation and had obtained valuable goods . In addition , the applicant \u2019s criminal activity took place over a long time and it was probable that if released he would collude and try to destroy evidence .","On DATE the applicant applied to ORG for release from detention . On DATE ORG rejected the application . He dismissed as unsubstantiated the applicant \u2019s claims that poor health and the financial situation of his family required his release . Moreover , the applicant \u2019s contention that his illhealth called for release would be decided after a panel of medical experts had examined him .","On DATE and DATE the applicant again made applications to ORG for release from detention . On DATE his requests were dismissed . ORG relied on a medical opinion issued by ORG , which stated that the applicant could remain in detention . In addition , he considered that since the applicant \u2019s daughter and his cohabitee lived with the latter \u2019s parents , there was no need for him to be released to care for them .","On DATE the applicant made an application for release from detention . On DATE the ORG rejected his application . The prosecutor referred to the medical opinion of DATE , which confirmed that the applicant \u2019s state of health allowed the continuation of his detention . Furthermore , he considered that the fact that the applicant \u2019s daughter had recently received medical treatment in the infant pathology ward of ORG did not constitute a ground for the applicant \u2019s release . The prosecutor also pointed out that the applicant \u2019s cohabitee cared for his daughter .","On DATE the ORG dismissed the applicant \u2019s appeal against ORG decision of CARDINAL DATE . ORG considered that the evidence showed that the applicant had committed the criminal offences with which he was charged . Moreover , the state of health of his daughter did not require that he be released . The prosecutor was also of a view that the applicant \u2019s detention was necessary to ensure the proper course of the proceedings .","On DATE the applicant lodged with ORG ( S\u0105d Apelacyjny ) a complaint about his detention . On CARDINAL DATE the court transmitted it to ORG to consider it as a request to change the preventive measure applied to the applicant . On DATE the prosecutor rejected the request . He dismissed as unsubstantiated the applicant \u2019s claims that his own state of health as well as that of several members of his family required his release from detention . In this connection , the prosecutor referred to medical opinions , which stated that the applicant was neither mentally ill nor retarded and that his detention would not cause any risk to his health and life . Furthermore , he considered that the investigation of the applicant \u2019s claim that his detention constituted a hardship for his family had showed that it was unsubstantiated .","On DATE ORG allowed the request submitted by the prosecution service and extended the applicant \u2019s detention on remand until DATE . The court considered that the evidence collected in the case sufficiently supported the charges laid against the applicant . It also relied on a significant danger to society caused by the criminal offences in question and the necessity to ensure the proper course of criminal proceedings . Furthermore , the court pointed out that the investigation of the case would have to be continued in order to clarify the applicant \u2019s role in the commission of the criminal offences and to identify individuals who would be charged with receiving stolen goods from the applicant . Finally , the court considered that the applicant \u2019s case did not disclose any of the grounds for release from detention listed in LAW of LAW , i.e. danger to the detainee \u2019s life or health and extreme hardship caused to either the detainee or his family . On DATE ORG dismissed the applicant \u2019s appeal against the decision of ORG .","On DATE the ORG filed with ORG a bill of indictment against the applicant .","On DATE the applicant asked ORG to release him from detention . On DATE the court dismissed his request . It relied on a significant danger to society caused by the criminal offences with which the applicant was charged and the evidence on which they were based . The court was also of the view that the applicant \u2019s family did not suffer hardship which would justify his release .","On DATE the applicant again filed an application for release but on DATE the ORG rejected it . On CARDINAL DATE ORG dismissed the applicant \u2019s appeal against that decision . The court observed that the applicant could apply for bail .","On DATE ORG rejected the application for release filed by the applicant on DATE . On DATE the court rejected the application lodged on DATE .","On DATE the applicant made a further application to ORG for release from detention . On DATE the court dismissed his application . It referred to the previous court decisions refusing his requests for release . Moreover , the court considered that the claim that the applicant \u2019s father suffered hardship was unsubstantiated .","The date of the first hearing was fixed for DATE . However , it was cancelled because CARDINAL of the defendants was ill and could not attend it .","On DATE the applicant made an application to ORG for release from detention . On DATE the court dismissed his request . It relied on a significant danger to society caused by the criminal offences with which the applicant was charged and the evidence on which they were based . The court further considered that the applicant \u2019s detention was necessary to secure the proper conduct of criminal proceedings . In addition , it observed that the applicant \u2019s failure to pay child support did not warrant his release , as CARDINAL of his children was in receipt of child support payments from ORG ( ORG ) .","On DATE ORG held a hearing . It was adjourned because CARDINAL defendants failed to attend it .","On DATE the applicant made an application to ORG for release from detention . On DATE the court rejected his request . It relied on the grounds for continuing the applicant \u2019s detention listed in previous court decisions .","On DATE the applicant asked ORG to release him from detention . On DATE the court dismissed his request . It considered that the evidence collected in the case sufficiently supported the charges laid against the applicant . As the charges could lead to a severe prison sentence , there was a risk of absconding . Furthermore , the court was of the view that the applicant \u2019s inability to provide care to his children over a long period of time did not result in exceptional hardship for his family .","On DATE ORG dismissed the applicant \u2019s application for release from detention filed on DATE . The court relied on the evidence collected in the case , which in its opinion supported the charges laid against the applicant . In addition , it considered that the prospect of a severe penalty , which could be imposed on the applicant , could prompt him to abscond .","On DATE the Vice - President of ORG informed ORG and the applicant that the applicant \u2019s case did not disclose that the proceedings had taken unreasonably long . In particular , he pointed out that CARDINAL individuals were accused in the case , the case file consisted of CARDINAL volumes and evidence had to be taken from fiftyeight witnesses . Furthermore , the ORG observed that the first hearing had been cancelled because CARDINAL of the defendants had been ill . The second hearing had been adjourned until DATE as CARDINAL defendants had failed to attend it . Finally , he stated that \u201c the judge rapporteur is dealing with CARDINAL other cases and therefore is not able to decide this case sooner than is possible \u201d .","On DATE ORG held a hearing . It was adjourned because some of the defendants failed to attend it .","On DATE ORG allowed the applicant \u2019s appeal against ORG decision of CARDINAL DATE rejecting his application for release from detention . The appellate court quashed the impugned decision and instructed the trial court to reconsider the applicant \u2019s request . It acknowledged that \u201c in the present case the detention on remand has lasted quite long \u201d . In addition , the appellate court considered that the trial court \u2019s statement on the applicant \u2019s intention to abscond was not precise enough . As the applicant \u2019s detention had already lasted DATE and as he was not charged with a serious offence , the mere reference to the possibility that the applicant could abscond because of the prospect of a severe penalty was not sufficient . The appellate court also observed that the trial court had not considered whether another preventive measure could replace the applicant \u2019s detention on remand .","On DATE ORG dismissed the applicant \u2019s CARDINAL applications for release submitted in DATE and DATE . The court considered that the charges against the applicant were sufficiently supported by the evidence . Moreover , the difficulties in finding the applicant \u2019s place of residence during the investigative stage of the proceedings and the prospect of a severe penalty showed that he could go into hiding if released from detention . The court further noted that the applicant could not be released on bail as he had stated that he had no funds to pay it . Finally , it considered that there was no evidence pointing towards the existence of any of the grounds for release provided for by LAW .","The hearing held on DATE was adjourned until DATE as some of the defendants failed to attend it because of ill health .","During the hearing held on DATE ORG rejected the applicant \u2019s application for release from detention . The hearing was adjourned because some of the defendants failed to attend it .","On DATE ORG dismissed the applicant \u2019s appeal against ORG decision of CARDINAL DATE . The appellate court observed that the applicant \u2019s release would delay the proceedings , as his cohabitee lived in Opole . It also noted that the applicant had contributed to the delay in the proceedings because on numerous occasions he had submitted requests and appeals . In addition , on several occasions a case file had been transmitted from the trial court to ORG after the applicant had asked to consult it .","On DATE ORG dismissed the applicant \u2019s appeal against ORG decision of CARDINAL DATE . The appellate court referred to previous court decisions rejecting his applications for release from detention . The court further noted that although the length of the applicant \u2019s detention could be worrying ( trwa ju\u017c niepokoj\u0105co d\u0142ugo ) , it had not been caused by the inactivity of the trial court . Moreover , the appellate court recommended that \u201c more energetic steps \u201d be taken to expedite the proceedings . Finally , it acknowledged that the state of health of the applicant \u2019s cohabitee and his daughter was not good . However , the court was of the view that the applicant \u2019s release would not contribute to the improvement of their health .","In a letter of DATE the President of ORG advised the applicant that the trial court could not be blamed for the delay in the proceedings . He pointed out that the court had fixed numerous hearings , which had been adjourned because of the absence of defendants who had been ill .","During the hearing held on DATE the applicant applied for bail . He proposed that the bail be set at PLN CARDINAL,CARDINAL . However , ORG rejected the application . It gave the following reasons for its decision :","\u201c The circumstances raised by the accused in his application have already been considered by both ORG and ORG . Therefore , taking into account the fact that no new circumstances have taken place , it should be assumed that the reasons for continuing detention on remand have not ceased to exist . \u201d","During the hearing held on DATE ORG rejected the applicant \u2019s application for release from detention . The hearing was adjourned because some of the defendants failed to attend it .","NORP On DATE ORG decided to request ORG ( S\u0105d Najwy\u017cszy ) to extend the applicant \u2019s detention on remand .","On DATE ORG dismissed the applicant \u2019s appeal against ORG decision of CARDINAL DATE . The appellate court recalled that during DATE it had been considering on a DATE basis the applicant \u2019s appeals against the trial court \u2019s refusals to release him . It considered that the factual and legal circumstances concerning the applicant \u2019s detention had not changed .","On DATE ORG allowed ORG request and extended the applicant \u2019s detention on remand until DATE . It considered that the prolongation of the applicant \u2019s detention was justified by the evidence , the possibility that he could go into hiding and the complexity of the case . It also observed that the delay in the proceedings was caused by the behaviour of defendants who had failed to attend hearings .","ORG further reflected on the legality of the applicant \u2019s detention DATE . The relevant part of the court \u2019s reasoning may be summarised as follows :","ORG , noting that the application was filed on DATE but posted as late as DATE , first considered what was the proper date of \u2018 ORG such an application for the purposes of LAW .","ORG next observed that , depending on the answer to this question , it would have to determine the legal consequences of a potential failure on the part of ORG to respect the rule laid down in DATE a ) LAW of DATE , which stated that in cases where no request for a further prolongation of detention on remand had been \u2018 lodged\u2019 , the detention on remand had to be lifted and the person concerned released not later than on DATE .","ORG considered that it should also deal with the question of whether it was competent to rule on the application if it had been \u2018 lodged\u2019 after the expiry of the term referred to in LAW ( a ) of LAW of DATE , i.e. after DATE .","Referring to the first question , ORG held that the proper date of \u2018 ORG an application under LAW of LAW had to be deemed either the date of posting the request or the date of submitting it to the registry of ORG since to hold otherwise would mean leaving a detainee without any guarantee that ORG was properly supervising his detention . Moreover , if the requesting court was not bound by any time - limits for submitting its application , detention , the most severe among the preventive measures , might continue for an unspecified and unlimited time outside ORG supervision . In consequence , an application under LAW of LAW , a mere \u2018 proposal\u2019 to continue detention , would , for all practical purposes , transform into a basis for continuing detention . Clearly , that was not the intention of the legislator .","ORG therefore concluded that since in the applicant \u2019s case no application for a further prolongation of his detention was \u2018 lodged\u2019 DATE , the applicant \u2019s ( and his GPE ) detention from DATE to the date of its present decision lacked any legal basis and was , accordingly , unlawful .","It went on to find that it was , nevertheless , competent to deal with the application lodged outside the relevant date . It considered that a lower court \u2019s obligation to release a detainee in case of its failure properly to lodge an application under LAW CARDINAL of the Code of Criminal Procedure was CARDINAL thing , but its right to make such an application at any time was another . In ORG opinion , the application in question should be deemed a \u201c fresh application \u201d and be examined as such .","On DATE ORG held a hearing .","On DATE the President of ORG informed the applicant that his complaints about his unjustified detention on remand were unsubstantiated . The President also recalled that on DATE ORG had prolonged the applicant \u2019s detention and that no hearings could be held in his case at the time when ORG had been considering the request to extend his detention . In addition , he observed that the next hearing was scheduled for DATE .","On DATE ORG dismissed as unsubstantiated the applicant \u2019s challenge to CARDINAL of the judges considering his case .","On DATE ORG held a hearing . It was adjourned because some of the defendants failed to attend it .","During the hearings held on DATE and CARDINAL DATE ORG dismissed the applicant \u2019s applications for release from detention . The latter hearing was adjourned because some of the defendants failed to attend it .","The hearing held on DATE was adjourned because some of the defendants did not attend it .","DATE . During the hearing held on DATE ORG decided to sever the charges laid against CARDINAL co - defendants and to consider them in separate proceedings because the co - defendants\u2019 numerous failures to attend hearings resulted in the delay in deciding the applicant \u2019s case . Thereafter , the proceedings were continued against the applicant and CARDINAL codefendants .","The next hearings were held on CARDINAL , CARDINAL DATE and DATE . The hearing scheduled for DATE was cancelled .","On DATE the hearing was held before ORG . It decided to request ORG to prolong the applicant \u2019s detention on remand .","On DATE ORG extended the applicant \u2019s detention on remand until DATE .","During the hearing held on DATE ORG rejected the applicant \u2019s requests that the charges against him be decided in separate proceedings and that he be released from detention .","On DATE hearings took place before the trial court .","On DATE the applicant was released from detention .","Subsequently , hearings were held on DATE , CARDINAL May , CARDINAL June , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE .","In the course of DATE ORG held hearings on the following dates : DATE , DATE , DATE , DATE , DATE and CARDINAL May , DATE , CARDINAL DATE , CARDINAL DATE and DATE . The hearings held on DATE and CARDINAL DATE were adjourned because a judge was ill .","On DATE the court held a hearing .","During the hearings held DATE and DATE ORG took evidence from CARDINAL witnesses .","On DATE the ORG convicted the applicant and sentenced him to DATE and CARDINAL months\u2019 imprisonment and to a fine . On DATE the applicant appealed against his conviction .","On DATE ORG dismissed the applicant \u2019s appeal .","On DATE the ORG received the applicant \u2019s letter of DATE . The front of the envelope in which the letter was delivered bears a stamp in NORP : \u201c Opole Detention Centre , Ward III , Received on CARDINAL . \u201d On the back of the envelope there is a stamp in NORP : \u201c Censored . Opole , CARDINAL \u201d . The top edge of the envelope is sealed with Sellotape . The envelope is postmarked DATE .","NORP Over the period to which the facts of the present case relate , i.e. from DATE to DATE , NORP criminal legislation was amended on several occasions .","In so far as the present case is concerned , there were CARDINAL relevant amendments to LAW ( \u201c the DATE Code \u201d ) , a law which is no longer in force as it was repealed and replaced by the socalled \u201c New Code of Criminal Procedure \u201d of DATE ( \u201c the DATE Code \u201d ) , which entered into force on DATE .","The first such amendment was made by the LAW DATE on LAW to LAW and Other Criminal Statutes which entered into force on DATE , except the amendments relating to the imposition of detention on remand ( in particular , those stating that only a judge was empowered to detain a suspect on remand ) ; the entry into force of the latter amendments being postponed until DATE ( see below ) .","The second amendment , effected by the PERSON of DATE on LAW to the LAW ( \u201c the DATE Interim LAW ) came into force on DATE . Section CARDINAL(a ) of the PERSON introduced special interim rules governing the prolongation of detention on remand beyond the statutory time - limits laid down in LAW and DATE Code in cases where such detention had been imposed DATE ( see below , CARDINAL c ) \u201c Statutory time - limits for detention on remand \u201d ) .","At the material time the DATE Code listed as \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) , inter alia , detention on remand , bail and police supervision .","Article CARDINAL \u00a7 CARDINAL of the DATE Code read ( in the version applicable until DATE ) :","\u201c 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 . \u201d","Article CARDINAL ( in the version applicable until DATE ) stated , in so far as relevant :","\u201c CARDINAL . The prosecutor may order detention on remand for a period not exceeding DATE .","( CARDINAL ) the court competent to deal with the case , upon the prosecutor \u2019s request , for a period not exceeding one year ;","( CARDINAL ) ORG , upon request of ORG , for a further fixed term required to terminate the investigation . \u201d","Under LAW a detainee could 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 judge dealing with his appeal .","Article CARDINAL of the DATE Code set out general grounds justifying imposition of preventive measures . That provision ( as it stood at the material time ) provided :","\u201c 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 . \u201d","Article CARDINAL \u00a7 CARDINAL defined grounds for detention on remand . That provision , in the version applicable until DATE provided , in so far as relevant :","\u201c 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 conduct 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 . \u201d","On DATE paragraphs ( CARDINAL ) and ( CARDINAL ) were repealed . From that date on that provision read :","\u201c ( 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 ] . \u201d","Paragraph CARDINAL of Article CARDINAL then read :","\u201c 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 CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE 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 . \u201d","The DATE Code set out the margin of discretion as to maintaining a specific preventive measure . Articles CARDINAL \u00a7 CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand , the most extreme among the preventive measures , should not be imposed if more lenient measures were adequate .","Article CARDINAL \u00a7 CARDINAL provided :","\u201c A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis therefor 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 . \u201d","Article CARDINAL stated :","\u201c 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 these measures , are considered adequate . \u201d","The provisions of the LAW providing for \u201c mandatory detention \u201d ( for instance , pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the LAW DATE referred to above .","Finally , Article CARDINAL provided :","\u201c 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 . \u201d","Until DATE , i.e. the date on which the relevant provisions of the Law of CARDINAL DATE on LAW to LAW and Other Criminal Statutes entered into force , the law did not set out any time - limits on detention on remand in court proceedings ; it did so only in respect of the investigative stage ( see above , CARDINAL ) Imposition of detention on remand ; Article CARDINAL in the version applicable until DATE ) .","Article CARDINAL of the DATE Code in the version applicable after DATE provided , in so far as relevant :","\u201c 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 was liable to a sentence of a statutory minimum of CARDINAL CARDINAL years\u2019 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 in 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 . \u201d","DATE . 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 :","\u201c ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... \u201d","However , as already mentioned ( see paragraph CARDINAL above ) , under section CARDINAL ( a ) of the DATE Interim PERSON , different rules applied to persons whose detention on remand started prior to CARDINAL August CARDINAL . That section provided :","\u201c CARDINAL . In cases where the total period of detention on remand which started prior to CARDINAL DATE exceeds the [ maximum ] time - limits referred to in Article QUANTITY of LAW [ as amended by LAW DATE on LAW to LAW and Other Criminal Statutes ] , the accused shall be kept in detention until ORG gives a decision on an application for prolongation of his detention under LAW of LAW .","NORP In cases mentioned in paragraph CARDINAL , if no [ such ] application has been lodged , detention shall be lifted not DATE . \u201d","In cases where ORG dismissed an application under LAW CARDINAL , a detainee had to be released . As long as it had not given its ruling , the application of the relevant court DATE which had the form of a decision ( \u201c postanowienie \u201d ) \u2013 was deemed to be a legal basis for the continued detention .","Article CARDINAL \u00a7 QUANTITY of the DATE Code read , in so far as relevant :","\u201c CARDINAL . The court competent to deal with the charges laid against a principal offender shall be competent to determine the charges laid against all his accessories and\/or other persons , if the offence[s ] committed by the latter are closely related to that [ or those ] committed by a principal offender [ and ] if the criminal proceedings against [ all of them ] are pending simultaneously .","NORP The cases of persons referred to in paragraph CARDINAL shall be joined in the same proceedings ;","NORP In cases where circumstances have rendered a joint determination of all the charges referred to in paragraphs CARDINAL and CARDINAL difficult [ the court ] may sever a specific charge [ or charges ] from the case ... . \u201d","A first - instance court could , either of its own motion or on an application made by a party , make a severance order at any time .","That offence , until DATE , was defined in LAW CARDINAL ( CARDINAL ) of LAW of DATE , which provided :","\u201c Anyone who has committed aggravated fraud shall be liable to a sentence ranging from one to CARDINAL years\u2019 imprisonment . \u201d","On DATE LAW of DATE was repealed by the socalled \u201c New Criminal Code \u201d of DATE and , from then on , the offence of aggravated fraud has been defined by LAW read in conjunction with LAW ; the potential sentence still ranges from one to CARDINAL years\u2019 imprisonment ."],"violated_articles":["5"],"violated_paragraphs":["5-1","5-3"],"violated_bulletpoints":[],"non_violated_articles":["34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-97924","languageisocode":"ENG","respondent":"MKD","branch":"CHAMBER","date":2010,"docname":"CASE OF MITRESKI v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":3,"conclusion":"Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger","text":["The applicant was born in DATE and lives in PERSON .","At TIME on CARDINAL DATE the applicant was arrested and taken into police custody . On CARDINAL DATE an investigating judge from ORG ( \u201c the trial court \u201d ) questioned the applicant , who was assisted by counsel . An investigation was opened on the grounds of reasonable suspicion of extortion of money from a minor . The investigating judge refused a request by the public prosecutor for the applicant to be detained in prison , but ordered , instead , DATE house arrest ( \u043a\u0443\u045c\u0435\u043d \u043f\u0440\u0438\u0442\u0432\u043e\u0440 ) . That measure required the applicant to remain at home and to refrain from using any means of communication for the duration of the order . His passport was also seized and the police were ordered to check his presence in the house DATE . The judge considered that there were reasonable grounds for suspecting the applicant of having committed the offence , but that in the light of his clean record and family circumstances , a non - custodial measure , such as house arrest , was preferable . The applicant 's house arrest was ordered on all the grounds specified in section CARDINAL of LAW ( see paragraph CARDINAL below ) . This decision was served on the applicant and his lawyer at TIME","At TIME DATE , the public prosecutor appealed on the ground that the investigating judge had not provided sufficient reasons for refusing to detain the applicant in prison and had not examined whether house arrest could be supervised effectively . The applicant did not appeal .","On DATE a CARDINAL - judge panel of the trial court ( \u201c the panel \u201d ) , sitting in private , allowed the appeal and replaced the order for the applicant 's house arrest with an order for his detention in prison . It further quashed the order for the confiscation of the applicant 's passport . The panel found that there was a danger that the applicant would interfere with the investigation , in particular by putting pressure on witnesses who had not been heard yet and on the victim , who , being a minor , was vulnerable . Having regard to the gravity of the offence and the way in which it had been committed , the panel ruled that house arrest was an inadequate measure in the applicant 's case . This decision was served on the applicant at TIME . No appeal lay against the panel 's decision .","On DATE the investigating judge terminated the panels ' order for the applicant 's detention in prison and ordered DATE house arrest accompanied by the same security measures described above ( see paragraph CARDINAL above ) . The judge found no justification for the applicant 's continued detention in prison since the investigation had been completed . In this connection , he noted that evidence had been taken from the victim and witnesses proposed by both parties . Given the accompanying measures ordered , there was no likelihood of reoffending or obstructing the course of justice by influencing other witnesses , if any .","On DATE the panel dismissed the public prosecutor 's appeal , finding the house arrest and accompanying measures adequate to ensure the applicant 's attendance at the trial .","The panel , sitting in first instance , extended the applicant 's house arrest on CARDINAL occasions , namely , on DATE and CARDINAL DATE , with the stated aim of ensuring his attendance at trial . In doing so , it relied on the gravity of the charges and potential penalty . The applicant unsuccessfully appealed against both orders . ORG decisions dismissing the applicant 's appeals dated DATE and CARDINAL DATE respectively .","On DATE the trial court convicted the applicant of extortion and sentenced him to DATE imprisonment . It further extended the house arrest order until the criminal proceedings are completed . The proceedings are underway .","Section PERSON ) of LAW ( \u201c the LAW \u201d ) provides that a CARDINAL - judge panel of the trial court decides , inter alia , appeals against decisions of the investigating judge .","Under section CARDINAL ) , paragraphs CARDINAL - CARDINAL , of the LAW , pre - trial detention can be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of his or her absconding , interfering with the investigation or reoffending .","Under section CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL) of the LAW , an investigating judge has jurisdiction to order pre - trial detention . The detainee may challenge the detention order before the panel within TIME . The appeal does not suspend the execution of the detention order . The panel must decide the appeal within TIME . The detainee , through his or her lawyer , can request to be notified of the date of the hearing before the panel in order to be able to present his or her arguments orally .","Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW provides that the panel , set up under section PERSON ) , may extend the period of detention by DATE at the request of the investigating judge . Such an order can be challenged before the next level of jurisdiction ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104811","languageisocode":"ENG","respondent":"GRC","branch":"ADMISSIBILITY","date":2011,"docname":"ANASTASSAKOS AND OTHERS v. GREECE","importance":4,"conclusion":"Inadmissible","judges":"Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis","text":["The applicants , Mr PERSON , Mr PERSON and PERSON are NORP nationals who were born in DATE , DATE and DATE respectively . They live in GPE . They are represented before the ORG by Mr PERSON and Mr Y. ORG , both lawyers practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON , Senior Adviser at ORG , PERSON , Adviser at ORG and PERSON , Legal Assistant at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants have a direct or indirect involvement in the operation of ORG , a company under NORP law , which specialises in providing television audience measurement services . In particular , the first applicant was the first managing director of ORG , currently holds PERCENT of that company \u2019s shares and is the chairman of the board of directors . The second applicant has been the managing director of ORG since DATE . The third applicant was one of the co - founders of ORG and DATE holds PERCENT of the company \u2019s shares .","ORG was founded in DATE and has remained the sole provider of TV audience data to DATE . The applicants state that it has been noticed worldwide that the relevant national markets prefer to share a common source of television audience data . This is due to the fact that commonly accepted television data in the context of national markets form a decisive parameter in the decision - making process , as regards advertising investment strategies . The applicants submit that GPE is a unique case in the field of terrestrial television broadcasting owing to the fact that , under the successive laws that have been enacted since DATE , when the ORG monopoly was abolished , there are DATE CARDINAL private , CARDINAL regional and CARDINAL local television channels , none of which has a proper operating licence . It is submitted that in this context of institutional anarchy ORG \u2019s role has become more crucial than in other countries . The applicants claim that , for this reason , ORG has occasionally been the target of campaigns in which its professionalism and reputation have been attacked .","In DATE a high - ranking executive of ORG drafted and made public a report on ORG \u2019s activities suggesting that ORG and its executives had committed irregularities with regard to the choice of sample and the subsequent processing of television data . ORG , an independent committee created by virtue of section CARDINAL(CARDINAL ) of PERSON no . DATE , conducted a special investigation and cleared ORG of all charges .","In DATE ORG , which at the time was allegedly facing major financial difficulties and low ratings , again drew attention to the above - mentioned report . The latter gained widespread publicity , and on DATE a preliminary examination was ordered in respect of ORG \u2019s managers by ORG . In DATE all CARDINAL applicants were summoned to the prosecutor \u2019s office to answer rather general questions , without being bound by oath ( \u03b1\u03bd\u03bf\u03bc\u03c9\u03c4\u03af ) . On DATE the public prosecutor initiated criminal proceedings against the applicants for the concurrent offences of fraud , fraud committed against the ORG and filing of false statements before an administrative authority . On DATE , the case file was transmitted to the investigating judge .","The applicants submit that , on DATE , during the regular off - the - record meeting of the senior prosecuting authority with the media held on the premises of ORG , journalists were briefed that criminal proceedings were to be initiated against the CARDINAL applicants in relation to ORG \u2019s alleged irregularities . Long excerpts and explicit details about the allegations were read from the unofficial prosecutor \u2019s report ( \u03c0\u03cc\u03c1\u03b9\u03c3\u03bc\u03b1 ) . This report is only an internal document and NORP law does not provide for such a report . It is only by way of a working practice that such reports are drafted by the prosecutor in charge as an informal description and assessment of the facts for the sole purpose of briefing the supervising prosecutor on the case . Moreover , the accused had not yet been notified of the report , and therefore the applicants had no official knowledge of its content .","On DATE , PERSON , a journalist hosting a popular television show , ORG ORG ( \u201c The Jungle \u201d ) , appeared before a large panel of guests , holding a copy of the prosecutor \u2019s confidential report . While showing the report on camera with frequent close - ups , he went on to read out extensive parts of it . Quoting selected extracts from the report , he stated that ORG was an integral part of a \u201c network of conspiracy \u201d and the \u201c real centre of power \u201d in GPE , both at political and at economic level . Other guests participating in the panel stated that ORG not only built or destroyed TV careers but also distributed CARDINAL and constituted a \u201c spider \u2019s web \u201d and a \u201c fraudulent trap \u201d .","The following DATE \u2019s newspapers contained extensive articles on the case . CARDINAL GPE dailies quoted parts of the prosecutor \u2019s confidential report , and CARDINAL of them published photographs of the first CARDINAL applicants and another CARDINAL pages of the original report . The story caused such interest throughout GPE that , on TIME DATE , the first and third applicants were forced to answer pressing questions by journalists live on CARDINAL of the most popular evening television broadcasts .","The applicants submit that both their private and professional lives have dramatically changed . After the disclosure of the prosecutor \u2019s report and the ensuing publicity , they are allegedly looked upon with distrust and disapproval and are in a state of uncertainty as to their future careers . They state that the impact on their private lives has also been considerable . In particular , the first applicant started receiving anonymous hostile telephone calls and letters , which forced him to seek protection for his LOC from private security guards . After the television reports , the first and second applicants\u2019 children started using their ORG maiden name at school , so as to avoid further abuse . The second applicant , having already had health problems with his vocal cords , suffered a relapse , which required a second operation , after the above - mentioned events took place .","On DATE ORG of ORG dismissed all the charges against the applicants ( decision no . DATE ) . It stated , inter alia , that there were no grounds to commit the applicants for trial .","NORP The relevant provisions of the LAW provide as follows :","\u201c CARDINAL . All persons are entitled to information , as specified by law . Restrictions to this right may be imposed by law only in so far as they are absolutely necessary and justified for reasons of national security , combating crime or protecting the rights and interests of third parties .","All persons are entitled to participate in ORG Facilitation of access to electronically processed information , as well as of the production , exchange and diffusion thereof , constitutes an obligation of the ORG , always in observance of the guarantees of Articles CARDINAL , ORG and DATE . \u201d","\u201c Actions against judicial officers for miscarriage of justice shall be tried , as specified by law , by a special court composed of the President of ORG , as President , and CARDINAL councillor of ORG , one ORG and ORG judge , CARDINAL councillor of ORG , CARDINAL law professors of the law schools of the country \u2019s universities and CARDINAL lawyers from among the members of ORG for lawyers , as members , all of whom shall be chosen by lot .","In each case , the member of the special court who belongs to the judicial body or branch the actions or omissions of an officer of which the court is called upon to judge shall be exempted . In the case of an action against a member of ORG or an officer of the ordinary administrative courts , the special court shall be presided over by the President of ORG .","No permission shall be required to institute an action for miscarriage of justice . \u201d","NORP The following provisions of LAW ( PERSON ) to LAW ( Law no . CARDINAL\/CARDINAL ) are relevant :","\u201c The ORG shall be liable in accordance with the provisions of LAW concerning legal persons , for acts or omissions of its organs regarding private - law relations or ORG assets . \u201d","\u201c The ORG shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority , except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest . The person responsible shall be jointly and severally liable , without prejudice to the special provisions on ministerial responsibility . \u201d","This section establishes the concept of a special prejudicial act in public law , creating State liability in tort . This liability results from unlawful acts or omissions . The acts concerned may be not only legal acts but also physical acts by the administrative authorities , including acts which are not in principle enforceable through the courts ( PERSON , Interpretation of the Civil Code , section CARDINAL of the Introductory Law to LAW , no . CARDINAL ; ORG , Contract , ORG , volume CARDINAL , Tort , DATE , para . CARDINAL B CARDINAL ; PERSON , Administrative Law , CARDINALrd edition , para . CARDINAL ; ORG judgment no . CARDINAL , PERSON , DATE , p. CARDINAL ; ORG judgment no . CARDINAL\/CARDINAL , PERSON , DATE , p. CARDINAL ) . The admissibility of an action for damages is subject to CARDINAL condition , namely , the unlawfulness of the act or omission .","The relevant provisions of LAW read as follows :","\u201c Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement . Where the personal rights infringed are those of a deceased person , the right to bring proceedings shall be vested in his spouse , descendants , ascendants , brothers , sisters and testamentary beneficiaries . In addition , claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded . \u201d","\u201c In the cases provided for in DATE , the court may , in the judgment it gives on the application of the person whose right has been infringed , and regard being had to the nature of the infringement , also order the infringer to make reparation for the plaintiff \u2019s non - pecuniary damage . Such reparation shall consist in the payment of a sum of money , publication of the ORG","\u201c Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused ... \u201d","\u201c In the case of an unlawful act , the court may , irrespective of any award of compensation for pecuniary damages , award reasonable compensation ... for any non - pecuniary harm suffered ... \u201d","The relevant provisions of LAW read as follows :","\u201c CARDINAL . Anyone who is under the legal obligation to perform judicial duties and discloses to a third person confidential information of the deliberations or the vote in which he took part shall be punished by DATE imprisonment .","( ... ) \u201d","\u201c A civil servant who , with the exception of cases described under ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL , deliberately and with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the ORG or a third party , discloses to a third person ( a ) information which came to his knowledge because of his position or ( b ) a document either entrusted to him or accessible to him owing to his position , shall be punished by CARDINAL months\u2019 imprisonment . \u201d","\u201c A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the ORG or a third party shall be punished by up to CARDINAL years\u2019 imprisonment , save where the offence is punishable pursuant to another provision of criminal law . \u201d","\u201c CARDINAL . Except in cases which amount to defamation ( Articles CARDINAL and CARDINAL ) , anyone who by words or by deeds or by any other means injures another \u2019s reputation shall be punished by DATE imprisonment or by a pecuniary penalty . The pecuniary penalty may be imposed in addition to imprisonment .","If the injury to reputation is not severe , considering the circumstances and the person injured , the offender shall be punished by imprisonment or a fine .","The provision of paragraph CARDINAL of Article CARDINAL shall apply in this case . \u201d","\u201c CARDINAL . An insult committed through an act ( Article CARDINAL , paragraph CARDINAL ) shall be punishable by CARDINAL months\u2019 imprisonment if it was unprovoked by the victim .","If CARDINAL or more persons participated in the act referred to in the previous paragraph , it shall be punishable by CARDINAL months\u2019 imprisonment . \u201d","\u201c Anyone who by any means disseminates information to a third party concerning another which may damage the latter \u2019s character or reputation shall be punished by up to CARDINAL years\u2019 imprisonment or a pecuniary penalty . The pecuniary penalty may be imposed in addition to imprisonment . \u201d","\u201c If , in a case under LAW , the information is false and the offender was aware of the falsity thereof , he shall be punished by up to three months\u2019 imprisonment , and , in addition , a pecuniary penalty may be imposed and deprivation of civil rights under LAW may be ordered . \u201d","\u201c CARDINAL . Anyone who by any means asserts or disseminates information concerning a corporation with respect to its business , financial position , products or members of its board of directors which may lower the confidence of the public in the corporation and generally harm its business shall be punished by DATE imprisonment or a pecuniary penalty .","If the accused proves the truth of the information which he asserted or disseminated , he shall not be punished .","If the information which the accused asserted or disseminated is false , and he was aware of the falsity thereof , he shall be punished by imprisonment . \u201d","Article CARDINAL of the Code of Criminal Procedure reads as follows :","\u201c The judicial investigation takes place in writing and without any publicity ( ... ) \u201d","Article CARDINAL of LAW provides in so far as relevant :","\u00ab ( ... )","NORP The competent judicial authorities are bound to initiate disciplinary proceedings when their attention is drawn by any means to acts committed by the judiciary which may constitute a disciplinary fault ( ... ) \u201d","Section CARDINAL ) of PERSON no . ORG provides :","\u201c Anyone who unlawfully interferes in any way whatsoever with a personal data file , or takes notice of such data , or extracts , alters , adversely affects , destroys , processes , transfers , discloses , makes accessible to unauthorised persons , or permits such persons to take notice of , such data or anyone who exploits such data in any way whatsoever , shall be punished by imprisonment and a fine and , in the case of sensitive data , by imprisonment for a period of CARDINAL ( DATE and a fine amounting to MONEY ( GRD CARDINAL,CARDINAL,CARDINAL ) and CARDINAL ( GRD CARDINAL ) , unless otherwise subject to more serious sanctions . \u201d","NORP In its PERSON judgment of DATE ( Case C-CARDINAL\/CARDINAL ) ORG of ORG made clear that , since , in international law , a ORG which incurred liability for a breach of an international commitment was viewed as a single entity , irrespective of whether the breach which gave rise to the damage was attributable to the legislature , the judiciary or the executive , that principle must apply a fortiori in the ORG legal order since all ORG authorities , including the legislature , were bound , in performing their tasks , to comply with the rules laid down by Community law which directly governed the situation of individuals ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22829","languageisocode":"ENG","respondent":"ITA","branch":"ADMISSIBILITY","date":1999,"docname":"MARINIELLO v. ITALY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is an NORP national , born in DATE and currently detained in GPE . Before the ORG , he is represented by Mr PERSON , a lawyer practising in GPE .","In DATE , the applicant , accused of belonging to a criminal association and of drug - trafficking , was arrested . The suspicions against him were partly based on the content of certain wiretappings .","In an order of CARDINAL DATE , the investigating judge committed the applicant for trial , commencing on DATE before ORG .","In a judgment of CARDINAL DATE , filed with the registry on CARDINAL DATE , ORG , relying on the content of the wiretappings , sentenced the applicant to DATE imprisonment .","The applicant and ORG lodged an appeal with ORG .","In a judgment of DATE , filed with the registry on DATE , ORG confirmed the first - instance decision .","The applicant appealed on points of law .","In a judgment of DATE , ORG rejected the appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83131","languageisocode":"ENG","respondent":"EST","branch":"CHAMBER","date":2007,"docname":"CASE OF SAAREKALLAS OU v. ESTONIA","importance":3,"conclusion":"Preliminary objection dismissed (lack of authority);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["NORP The applicant company is a private limited company ( osa\u00fching ) , registered in GPE .","On DATE , T. , the lawyer of PERSON , lodged a request with ORG ( maakohus ) for securing a claim by ORG and P. According to PERSON , she had been in the possession of CARDINAL shares ( corresponding to MONEY of the share capital ) of PERSON , a public limited company , which had been unlawfully transformed into the applicant company , PERSON . The defendants had been entered in the commercial register as members of the management board of the company . PERSON submitted that P. intended to sell the company 's buildings at CARDINAL and FAC FAC in GPE . She requested the court to enter a notation in ORG prohibiting the disposal of the buildings concerned .","On DATE ORG granted the request .","On DATE the applicant company appealed against the interlocutory measure .","On DATE ORG annulled the interlocutory measure , as the plaintiff had not lodged the claim with ORG within DATE . This decision became final on DATE .","On DATE ORG ( ringkonnakohus ) took a decision concerning the appeal against the interlocutory measure . It noted that , although the appeal was well - founded , there was no need to quash the challenged decision as it had already been annulled .","On DATE , PERSON 's lawyer lodged a claim against the applicant company with ORG . The plaintiff alleged that she had been a shareholder of ORG , which had been transformed into the applicant company . However , she had not been entered on the list of shareholders of the applicant company after the transformation . She alleged that the P. was about to sell the buildings belonging to the applicant company and that this would be in breach of her rights . She requested that the management board of the applicant company be obliged to transfer to her a share in the value of CARDINAL NORP kroons ( EEK ) and that a notation prohibiting the disposal of the buildings at CARDINAL and FAC Pikk Street be entered in ORG .","On DATE ORG again ordered that a notation prohibiting the disposal of the buildings at CARDINAL and FAC Pikk Street be entered in ORG in order to secure PERSON 's claim .","ORG scheduled CARDINAL preliminary hearings from DATE to CARDINAL DATE . They were adjourned for various reasons : because of the negotiations between the parties to settle the case , the plaintiff 's requests to require documents from the applicant company , the parties ' or their representatives ' absence , the plaintiff 's applications to amend the object of the action and to bring additional claims .","On DATE the judge hearing the case made a ruling concerning her withdrawal . ORG had received copies of several petitions whereby the applicant company 's statutory representatives had requested that criminal proceedings be initiated against the judge concerned and the chairperson of ORG , since they had , allegedly , continuously committed serious crimes against the petitioners , involving denial of human existence , violence and crimes against human rights .","On DATE another judge of ORG made a ruling concerning her withdrawal , since the representatives of the applicant company had made several petitions for initiating criminal proceedings also against her . On DATE CARDINAL further judges ruled on their withdrawal .","By a letter of DATE the chairperson of ORG requested the chairperson of ORG to change the jurisdiction over the matter , since all of the judges of ORG had withdrawn from hearing the case . The chairperson of ORG considered the withdrawals unjustified and returned the case to ORG .","A preliminary hearing of the case was scheduled for DATE . However , on DATE the plaintiff 's lawyer informed ORG that PERSON , the plaintiff , had died on DATE . He requested that the proceedings be suspended . On CARDINAL DATE ORG decided to suspend the proceedings until ascertaining the identity of the plaintiff 's successor .","On DATE ORG resumed the proceedings and invited NORP , PERSON 's heir , to act as the plaintiff .","On DATE ORG held a preliminary hearing . NORP submitted to the court a request to amend the object of the action . ORG , member of the management board of the applicant company , asserted that he had not been authorised to represent the company .","On DATE the court held a preliminary hearing . N. , a member of the management board of the applicant company , again asserted that he had not been authorised to represent the company . The court agreed and decided that he could not take part in the proceedings . It heard the plaintiff 's lawyer and scheduled a new hearing for CARDINAL DATE .","On DATE the court again held a preliminary hearing . There appeared the plaintiff 's lawyer ; the applicant company 's representatives lacked due authorisation to act on its behalf . The court concluded the preliminary hearing and scheduled the trial hearing for DATE .","On DATE ORG held a trial hearing in the presence of NORP and his lawyer . PERSON was also present but had no authority to represent the applicant company .","ORG delivered its judgment on DATE . NORP 's claim was granted in part . The court obliged the management board of the applicant company to enter NORP on the list of its shareholders with a share of a nominal value of EEK CARDINAL .","Both the applicant company and NORP appealed against the judgment of ORG . On DATE ORG quashed ORG judgment and remitted the case back to it for fresh examination , since ORG , a shareholder of the applicant company , had not been involved in the proceedings .","On DATE ORG ( NORP ) refused the applicant company leave to appeal .","On DATE the ORG decided to resume the proceedings and to invite ORG to participate therein as a third party . It requested the plaintiff 's lawyer to provide evidence concerning the status of ORG , including on whether this company had been dissolved and , if so , whether there was a successor .","In DATE T. , the plaintiff 's lawyer , and the representatives of the applicant company were unsuccessfully seeking an opportunity to sell the buildings on FAC .","ORG held a preliminary hearing on DATE in the presence of the plaintiff 's representative and ORG who had no authority to represent the applicant company . ORG , registered in GPE , had refused the summonses sent by the court . The hearing was adjourned at the request of the plaintiff 's lawyer in order to find out whether ORG was an existing legal entity .","On DATE the plaintiff 's lawyer informed the court that the parties had started negotiations to settle the case . By DATE it became evident that no agreement could be reached .","On DATE and DATE ORG made requests to the authorities of GPE to receive information on ORG","On DATE ORG received an agreement concluded between the plaintiff and the defendant company whereby they settled the case . On DATE , ORG approved the settlement and annulled its interlocutory measure applied on DATE to secure the action . The plaintiff and the applicant company declared that they abandon their right to appeal against ORG decision whereby the settlement was confirmed .","The relevant provisions of LAW ( ORG p\u00f5hiseadus ) read as follows :","\u201c Everyone has the right to the protection of the state and of the law . ...","The law shall protect everyone from the arbitrary exercise of state authority . \u201d","\u201c The guarantee of rights and freedoms is the duty of the legislative , executive and judicial powers , and of local governments . \u201d","\u201c Everyone whose rights and freedoms are violated has the right of recourse to the courts . Everyone has the right , while his or her case is before the court , to petition for any relevant law , other legislation or procedure to be declared unconstitutional .","The courts shall observe the LAW and shall declare unconstitutional any law , other legislation or procedure which violates the rights and freedoms provided by LAW or which is otherwise in conflict with LAW . \u201d","\u201c Everyone has the right to compensation for moral and material damage caused by the unlawful action of any person . \u201d","The pertinent provisions of LAW ( GPE seadustik ) , applicable until DATE , read as follows :","\u201c The purpose of civil procedure is to hear and adjudicate civil matters justly and expeditiously . \u201d","\u201c ( CARDINAL ) A court shall decide on the acceptance of a statement of claim within DATE after the filing thereof .","... \u201d","\u201c ( CARDINAL ) If a court holds a preliminary hearing , it shall be held within DATE after the filing of the statement of claim . A court shall summon the participants in a proceeding to a preliminary hearing .","... \u201d","\u201c ...","( CARDINAL ) If possible , a court session shall be held by the court within DATE after the filing of a statement of claim .","... \u201d","\u201c ...","( CARDINAL ) A court shall justify the adjournment of the hearing of a matter . The reason shall be recorded in TIME of the court session . A new court session shall be held within a reasonable period of time . A court shall determine the time and place of a new court session , taking into consideration the opinions of the participants in the proceeding .","( CARDINAL ) If a court adjourns the hearing of a matter for DATE , it shall make a written ruling .","( CARDINAL ) A participant in the proceeding may file an appeal against such ruling if the participant in the proceeding finds that the hearing of the matter is adjourned for an unreasonably long period of time . A ruling of a court of appeal concerning an appeal against such ruling is not subject to appeal . \u201d","\u201c An appeal may be filed against a ruling on the suspension of a proceeding . A ruling of a court of appeal concerning an appeal against such ruling is not subject to appeal . \u201d","\u201c ...","( CARDINAL ) The parties and other participants in a proceeding may file an appeal against a ruling of the court of first instance if the right to file an appeal against a ruling is prescribed in this Code , or if the court ruling hinders the further conduct of the proceeding .","... \u201d","In a decision of DATE , ORG of ORG ( case no . CARDINAL - CARDINAL ) held that if no specific deadline had been provided for , the public authorities \u2013 ORG in the case at hand \u2013 had to perform actions within reasonable time . Otherwise , LAW would be violated . It found that administrative courts were authorised to examine such complaints under LAW ORG seadustik ) .","In a judgment of DATE , the plenary ORG ( case no . CARDINAL ) noted that a right to effective proceedings for one 's protection was guaranteed under LAW , DATE and DATE of the LAW . It would be contrary to LAW to exclude some basic rights from effective judicial protection . ORG concluded that administrative courts were authorised , under LAW , to examine whether certain procedural measures in criminal proceedings \u2013 in that case search and seizure \u2013 infringed the fundamental rights and freedoms of an individual .","In a judgment of DATE , ORG of ORG ( case no . CARDINAL ) held that even in cases where a person accused of a criminal offence had been removed from his or her office in accordance with the law but he or she was subsequently acquitted or the criminal proceedings against him or her were discontinued , he or she had to have a possibility of obtaining just compensation from the ORG . The court noted that although the matter was not regulated by law , this omission could not exclude the ORG 's responsibility before the individual . It held that in such cases compensation could be claimed on the basis of general principles of law even when no specific legal provisions existed .","In a judgment of DATE , ORG of ORG ( case no . CARDINAL - CARDINAL ) found , relying on LAW and CARDINAL of the LAW , that unlawful act or measure \u2013 including inaction or delay \u2013 in performing public functions served as grounds for compensation for damage . LAW was considered directly applicable . This case concerned a delay by municipal authorities in privatisation proceedings ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71779","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2005,"docname":"NOSOV v. RUSSIA","importance":3,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON Nosov , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr A. Shepelin , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the limited liability company Azimut - Elita , in which the applicant owned MONEY , sold petrol to the public company GPE .","On DATE PERSON paid a part of the stipulated purchase price . Following unsuccessful attempts to recover the amount outstanding , Azimut - Elita assigned debt to the limited liability company GPE , of which the applicant was , in his submission , director but not the owner . The Government referred to the GPE company as \u201c belonging \u201d to the applicant .","In DATE PERSON sued GPE for the amount outstanding and interest thereon .","On DATE ORG of the Kabardino - Balkaria Republic granted the action and awarded Kompanyony MONEY ( \u201c RUR \u201d ) . The Kompanyony company was represented by a PERSON , acting on the basis of a form of authority of DATE .","On DATE the Appellate Collegium of ORG of the Kabardino - Balkaria Republic upheld the judgment of DATE . The judgment became enforceable and on DATE a writ of execution was issued .","On DATE Kompanyony assigned the debt to PERSON . , a sole trader . On DATE the writ was submitted to the court bailiffs\u2019 service for enforcement .","As no cassation appeal was lodged within the established time - limit , on DATE the judgment became final .","On an unspecified date in DATE the GPE company went into liquidation pursuant to a judicial decision in unrelated proceedings .","On DATE PERSON assigned the debt to the limited liability company FAC , in which the applicant was , in his submission , director but not the owner . The Government indicated that the company \u201c belonged \u201d to the applicant but its director in DATE had been a certain Mr M.","On DATE ORG sued GPE for damages incurred through its failure to comply with the judgment .","On DATE Judge NORP of ORG of ORG issued CARDINAL procedural orders ( \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 ) . The first order granted GPE an extension of the time - limit for the submission of a cassation appeal and ordered that the so submitted cassation appeal should be examined . The second order granted GPE a deferral of court fees in connection with its cassation appeal . Both orders were issued on standard printed forms : in the first order the words \u201c [ the defendant ] refers to the fact that it missed the time - limit because of \u201d were struck through ; no grounds for granting the extension were given . Similarly , in the second order the words \u201c [ on the basis of ] the [ defendant \u2019s ] certificate no . _ _ _ of _ _ _ _ CARDINAL showing its insufficient funds \u201d were struck through and replaced with the words \u201c at the [ defendant \u2019s ] request \u201d without any further details .","On DATE the applicant filed his objections to the procedural orders which he signed as the director of ORG . He informed the court that he had been the director of ORG from DATE when the company had gone into liquidation without succession . The debt was assigned , by the mediation of PERSON . , to ORG . The applicant argued that , in conformity with LAW ) of LAW , the proceedings could not be re - opened or resumed because the original plaintiff had been liquidated . If the court would nevertheless consider it possible to examine the appeal , he asked that ORG be joined to the proceedings and copies of the request for the extension of the time - limit and statement of appeal be served on it .","On DATE ORG of ORG , sitting in a CARDINAL - judge formation presided over by Judge PERSON , quashed the judgments of CARDINAL DATE and DATE on the ground that the courts had given an incorrect assessment of the relevant facts , and remitted the claim for a new examination . As regards the reasons for the re - opening , the court held as follows :","\u201c The public company ORG has lodged a cassation appeal ... Pursuant to LAW , the time - limit for lodging a cassation appeal has been extended ...","[ The court ] has not received observations on the points of appeal . The court received a telegram from the Kompanyony company that contained a request to adjourn the proceedings until the evidence showing liquidation of the Kompanyony company had been produced . The request for adjournment was dismissed . \u201d","ORG instructed the first - instance court to examine whether the PERSON company had gone into liquidation and , if so , discontinue the proceedings in accordance with LAW .","On DATE ORG of the Kabardino - Balkaria Republic discontinued proceedings in the action for damages lodged by FAC on DATE because the underlying judgment had been quashed .","On CARDINAL DATE ORG of the Kabardino - Balkaria Republic issued a new decision . It noted that , according to the information from the tax authorities , ORG had been liquidated . The summons addressed to the company was returned as undelivered . The court held to discontinue the proceedings because the plaintiff failed to appear and ordered the PERSON company to bear RUR CARDINAL in court fees .","On DATE ORG sold the applicant the right to claim the debt and damages arising out of the judgment of DATE . According to a receipt of DATE , the applicant paid the stipulated amount of RUR CARDINAL ( approximately EUR CARDINAL ) in cash .","On an unspecified date the applicant complained to ORG of GPE about the procedural orders of DATE . He referred to the fact that the time - limit had been extended DATE after it had expired , whilst the defendant was a big factory with large administrative staff . Furthermore , he noted that ORG failed to give any reasons for the extension .","On DATE Judge PERSON of ORG responded that there were no grounds for lodging an application for supervisory review . The applicant \u2019s arguments about the absence of a justification for granting the extension were not addressed in the response .","The Pamir-CARDINAL company sued GPE for the damage incurred through its failure to comply with the judgment of CARDINAL DATE .","On DATE ORG of the Kabardino - Balkaria Republic dismissed the Pamir-CARDINAL \u2019s claim . It noted that the judgment of CARDINAL DATE had been quashed on DATE and that the plaintiff failed to prove the existence of damage and the causal link with the defendant \u2019s actions .","On DATE the Appellate Collegium of ORG of the Kabardino - Balkaria Republic upheld the judgment of DATE .","Articles CARDINAL and DATE provided that organisations could be represented before commercial courts by their bodies , acting within the scope of powers conferred on them by law , regulations or articles of association , or by special representatives acting on the basis of a form of authority .","LAW ) established that the commercial court should discontinue the proceedings if the organisation which was a party to the case was liquidated .","Article CARDINAL provided that the commercial court could extend a time - limit at the request of a party if it established that the party had missed the time - limit for a good reason .","Article CARDINAL set the time - limit for lodging a cassation appeal at DATE after the judgment or decision of the commercial court became enforceable .","Articles CARDINAL and CARDINAL required the service of copies of the cassation appeal on all parties to the proceedings , failing which the appeal would be disallowed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60991","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2003,"docname":"CASE OF L.M. v. ITALY","importance":4,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","The applicant is the owner of an apartment in GPE , which she had let to D.D'A.M.","In a registered letter of DATE , the applicant informed the tenant that she intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .","On DATE , she served a notice to quit on the tenant and summoned her to appear before ORG .","By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .","On DATE and on CARDINAL DATE , the applicant served notice on the tenant requiring her to vacate the LOC .","On DATE , she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .","DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as , under the statutory provisions providing for the suspension for the staggering of evictions , the applicant was not entitled to police assistance in enforcing the order for possession .","On DATE , the applicant recovered possession of the apartment , because the tenant spontaneously vacated the premises .","The relevant domestic law is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83372","languageisocode":"ENG","respondent":"BIH","branch":"CHAMBER","date":2007,"docname":"CASE OF KARANOVIC v. BOSNIA AND HERZEGOVINA","importance":2,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","NORP In DATE he was granted an old - age pension from the pension fund of the former GPE .","NORP In DATE the applicant left his home in GPE , in what is DATE GPE , and moved to what is DATE PERSON . While he was internally displaced , he received his pension from ORG .","Upon his return to GPE in DATE , the applicant unsuccessfully sought to receive his pension from GPE .","On DATE he complained to ORG .","On DATE ORG joined the applicant \u2019s case ( no . CH\/CARDINAL\/CARDINAL ) and those of PERSON and Ms Pa\u0161ali\u0107 ( nos . CH\/CARDINAL\/CARDINAL and CH\/CARDINAL\/CARDINAL ) and adopted a single decision . It was read out at a public hearing on DATE . Having been taken by ORG , the decision became final immediately .","ORG held that the applicant ( together with Mr PERSON and PERSON ) was discriminated against in his enjoyment of the right to social security as guaranteed by LAW . The reasons were set out in the decision which reads , in the relevant part , as follows :","\u201c CARDINAL . In the former ORG ( hereinafter \u201c SFRY \u201d ) , civilian pensions were administered by the CARDINAL ORG under their own respective laws and institutions . In addition , the state - level LAW ( ORG no . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , and CARDINAL ) granted equal minimum rights to every SFRY citizen and regulated the rights of persons who moved from one Republic to another .","Following changes brought about by the armed conflict , pensions in GPE came to be administered by CARDINAL separate funds : ORG hereinafter the \u201c ORG \u201d ) , ORG hereinafter the \u201c ORG \u201d ) , and ORG ( hereinafter the \u201c ORG \u201d ) . ORG and ORG subsequently merged , following a DATE decision by ORG , into ORG ( hereinafter the \u201c ORG \u201d ) , which has been operational DATE . Presently there is CARDINAL pension fund in the ORG and one in ORG , and all legislation directly concerning pension systems is made at the Entity level .","The basic calculation schemes for determining rights to pension and disability insurance are different in each entity . CARDINAL result of this has been significantly lower pensions in ORG . In DATE , the average pension in the ORG was CARDINAL [ NORP markas ( BAM ) ] , and the average pension in ORG was CARDINAL [ BAM ] . The minimum pension payment prescribed by law in GPE is CARDINAL [ BAM ] , while the minimum pension in the Republika Srpska is DATE [ BAM ] .","The system of pension insurance in GPE , as inherited from the former SFRY , has been based on the \u201c pay \/ go \u201d principle that salary contributions from current workers support the current pensioners . Thus , money that comes into the system as contributions is immediately paid out as pensions , rather than becoming interest - generating capital from which the interest is paid out as pensions . When the current workers retire , salary contributions from the future generation of workers will finance the current workers\u2019 pensions . Therefore , the pension system as a whole has had the character of a general social insurance system . This is also the case with the current ORG Funds .","On DATE , ORG , ORG , and ORG entered into the Agreement on Mutual Rights and Obligations in Execution of Pension and ORG ( hereinafter the \u201c LAW \u201d ) ( ORG , no . CARDINAL , DATE ; PERSON , no CARDINAL\/CARDINAL , DATE ) , under which they agreed that the ORG that had made payments to pensioners before the LAW came into force would continue to pay those pensions regardless of the ORG place of temporary or permanent residence . ORG entered into force on DATE ...","ORG , with the authorisation of the Republika Srpska government , unilaterally terminated LAW in DATE ( ORG , no . CARDINAL , DATE ) . According to a DATE report by the ORG High Commissioner for Refugees ( hereinafter \u201c ORG \u201d ) , despite its withdrawal from the Agreement , ORG has continued to pay those pensioners already recognised as its beneficiaries . For its part , ORG has declared that it will continue to follow the Agreement and pay its beneficiaries now living in the Republika Srpska .","According to the DATE ORG report , the absence of harmonised legislation between the CARDINAL Entities and the lack of state - level legislation regulating pension and other social benefits causes problems for displaced pensioners and returnees . Specifically , these problems arise from the different pension calculation schemes and different pension amounts in each Entity .","As a practical matter , a person who retired in GPE and held a pension there before the armed conflict , but later began receiving pension payments from ORG after displacement to ORG , would continue , after returning to GPE , to receive the lower pension payment from ORG . Such a returnee , while receiving the smaller ORG pension , would also face a higher cost of living in GPE than in ORG . Moreover , such a returnee would receive a pension much lower than a person who had made similar pension contributions during their working life but remained in the GPE throughout the armed conflict .","Under various inter - state pension benefits agreements , some civil pensioners from ORG who moved to other countries during the armed conflict continue to enjoy their full pension rights from ORG . For example , under LAW GPE and GPE ( ORG on ORG , No . CARDINAL\/CARDINAL , DATE ) , the responsible domestic insurer is obligated to pay full rights to a pension beneficiary , even if that person is residing in the other contracting state . According to ORG , no major problems are reported with regard to refugees from GPE and GPE receiving their full pensions in GPE . As of DATE , similar agreements had been signed and implemented between GPE and GPE and GPE and GPE , while other such agreements were in the works . According to ORG , users of pensions from GPE were receiving pensions in CARDINAL countries ( mostly in GPE and GPE ) in DATE .","...","This disparity leaves no doubt that persons who were internally displaced during the armed conflict are , upon their return , treated differently . Each of the present applicants left GPE in DATE at the outset of the armed conflict . These applicants now receive smaller pensions simply because they left the Federation for a period of time , not on their own free will , to live in LOC . Those who remained enjoy greater pension rights than those who left , even though they may have been identically situated before the armed conflict .","Indeed , it appears that the present applicants ( and others who were internally displaced and have returned to ORG ) are in a worse position than Federation pensioners who moved to other countries during the armed conflict . Many Federation pensioners who moved to other countries during the armed conflict continue to enjoy full pension rights from ORG ( see paragraph CARDINAL above ) .","Moreover , the prospect of returning to live in the Federation ( where the cost of living is higher than in PERSON ) on a smaller ORG pension presents a significant obstacle to the return of displaced persons . The present applicants attest to these difficulties , and the Federation , in its observations , admits that they should have been aware of them ( see paragraph CARDINAL above ) . CARDINAL of the important objectives of the settlement of the conflict in GPE was to facilitate the return of displaced persons ( see generally the General Framework Agreement for Peace in GPE , Annex CARDINAL ) . The ORG considers that displaced person status is a status relevant for the purposes of LAW ( b ) [ of LAW ] and further finds that the current situation regarding displaced ORG pensions is inimical to the goals of Annex CARDINAL . The only reason put forward for the different treatment is ORG , which , by its terms , makes displaced person status the basis for different treatment . But displaced person status can not serve as a justification for disparate treatment , especially where , as here , it carries with it a connotation of discrimination on ethnic grounds . Under the circumstances , the ORG concludes that the different , poorer treatment of the applicants with regard to their pension payments has no objective justification . \u201d","ORG made the following orders :","\u201c CARDINAL . The ORG finds it appropriate to order ORG to take all necessary legislative and administrative actions by DATE to ensure that the applicants are no longer discriminated against in their enjoyment of pension rights guaranteed by LAW , particularly in comparison to those pensioners who remained in the Federation during the armed conflict .","The ORG further orders ORG to compensate each applicant for the difference between the pension that he or she would be due under LAW between the pension funds and the amount the applicant would have received from ORG , from DATE of his or her application to ORG [ i.e. from DATE ] until DATE the GPE \u2019s compliance with the remedy ordered in paragraph CARDINAL [ immediately above ] . \u201d","In DATE ( the exact date has not been indicated ) the applicant received CARDINAL NORP markas ( which corresponds to MONEY ) by way of compensation from ORG .","NORP The applicant still receives his pension from ORG . Since the pension legislation has not yet been harmonised between the CARDINAL Entities , pensions in ORG are still generally lower than in GPE . Furthermore , pensioners in PERSON , as opposed to pensioners in GPE , do not receive the nominal amount of their pensions , but MONEY thereof ( this is owing to the financial difficulties of the Entity ) .","The Agreement on Human Rights was signed by GPE and its Entities on DATE , when it entered into force . The following are the relevant provisions :","Article I","\u201c The Parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms , including the rights and freedoms provided in LAW and its Protocols and the other international agreements listed in the Appendix to this Annex ...","LAW and CARDINAL","To assist in honoring their obligations under LAW , the Parties hereby establish ORG ( the \u2018 Commission\u2019 ) . The Commission shall consist of CARDINAL parts : ORG .","ORG and ORG shall consider , as subsequently described :","a. alleged or apparent violations of human rights as provided in LAW and the Protocols thereto , or","b. alleged or apparent discrimination on any ground such as sex , race , color , language , religion , political or other opinion , national or social origin , association with a national minority , property , birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this ORG , where such violation is alleged or appears to have been committed by the Parties , including by any official or organ of the Parties , LAW , or any individual acting under the authority of such official or organ .","Article XI \u00a7 CARDINAL","The Parties shall implement fully decisions of the ORG . \u201d","On DATE the Parties to ORG extended the mandate of ORG until DATE . On DATE ORG and ORG merged . Special chambers were created within ORG on an interim basis with a mandate to decide on cases received by the former ORG . DATE until DATE , the special chambers were named the \u201c ORG within the LAW \u201d ( see the agreement of DATE published in ORG ( \u201c ORG \u201d ) no . CARDINAL of CARDINAL DATE ) . Although the special chambers continued operating thereafter , they were no longer named ORG within the Constitutional Court \u201d ( see the agreement of DATE published in ORG no . CARDINAL of DATE ) . The special chambers were also entrusted with a mandate to examine complaints about non - enforcement of the decisions of the former ORG and to issue declarations in this connection ( see Rule CARDINAL of LAW published in ORG no . CARDINAL of DATE and Rule CARDINAL of the Rules of Procedure published in ORG no . CARDINAL of CARDINAL DATE ) . The declarations at issue certify that a decision of the former ORG was not fully enforced without affording any redress .","In accordance with LAW NORP zakon ORG ; published in ORG . CARDINAL of DATE and CARDINAL of DATE ; amendments published in ORG . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) , non - enforcement of a final and enforceable decision of ORG amounts to a criminal offence :","\u201c An official of the institutions of GPE , of the Entities or of GPE of GPE , who refuses to enforce a final and enforceable decision of ORG , of ORG , or who prevents the enforcement of any such decision , or who frustrates the enforcement of the decision in some other way , shall be punished by imprisonment for a term DATE . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78821","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF SLUKVINA v. UKRAINE","importance":4,"conclusion":"Violation of Art 6-1;Violation of P1-1;Not necessary to examine Art 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Peer Lorenzen","text":["The applicant was born in DATE and resides in the town of ORG , GPE region , GPE .","The applicant instituted proceedings in the ORG of Donetsk Region against ORG . CARDINAL ( \u0428\u0430\u0445\u0442\u0430 CARDINAL \u00ab \u041d\u043e\u0432\u043e\u0433\u0440\u043e\u0434\u0456\u0432\u0441\u044c\u043a\u0430 \u00bb ) - a ORG - owned enterprise - to recover salary arrears and other payments due to her late husband .","On DATE the ORG found in favour of the applicant ( ORG \u043c\u0456\u0441\u044c\u043a\u043e\u0433\u043e \u0441\u0443\u0434\u0443 PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u0456 ) and awarded her CARDINAL NORP hryvnias ( \u201c UAH \u201d ) . The judgment was sent for enforcement to the ORG ( ORG \u0432\u0438\u043a\u043e\u043d\u0430\u0432\u0447\u043e\u0457 \u0441\u043b\u0443\u0436\u0431\u0438 PERSON \u043c\u0456\u0441\u044c\u043a\u043e\u0433\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f \u044e\u0441\u0442\u0438\u0446\u0456\u0457 ) .","Subsequently , the applicant instituted proceedings in the Novogrodivskyy Town Court of GPE against the Novogrodivskyy Town Bailiffs ' Service for failure to enforce the judgment in her favour . On DATE ORG rejected the applicant 's claim , finding no fault had been committed by ORG . The court stated that ORG had acted properly in enforcing the judgment of CARDINAL DATE . However , by a number of decisions of ORG of GPE , ORG had been prohibited from selling the property of ORG , due to the bankruptcy proceedings which had been initiated against the company . On DATE ORG of GPE rejected the applicant 's appeal in cassation .","In DATE , the applicant instituted another set of proceedings in the ORG of GPE against the Novogrodivskyy Town Bailiffs ' Service for failure to enforce the judgment in her favour . On DATE ORG rejected the applicant 's claim , for the same reasons as before . On DATE ORG upheld the decision of the first instance court of DATE . On DATE ORG rejected the applicant 's appeal in cassation .","NORP In DATE ORG was reorganised and became a structural subdivision of ORG . As the latter thereby became the debtor , in DATE the enforcement proceedings were transferred to ORG ( ORG \u0432\u0438\u043a\u043e\u043d\u0430\u0432\u0447\u043e\u0457 \u0441\u043b\u0443\u0436\u0431\u0438 LOC \u043c\u0456\u0441\u044c\u043a\u043e\u0433\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f \u044e\u0441\u0442\u0438\u0446\u0456\u0457 ) .","The judgment in the applicant 's favour was enforced by instalments , the last amount being paid on DATE .","The applicant instituted proceedings in the ORG of the GPE region against ORG claiming compensation for material and moral damage caused to her by the delay in the enforcement of the judgment in her favour . On DATE the court found against the applicant . On DATE the ORG upheld this judgment . The applicant appealed in cassation and the proceedings are still pending .","NORP The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93867","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2009,"docname":"CASE OF YAKUBOVYCH v. UKRAINE","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in LOC .","On DATE the applicant instituted proceedings in ORG against a private company , PERSON , for non - fulfilment of its contractual obligations , under which it should have provided the applicant with agricultural products .","On DATE ORG left the applicant \u2019s complaint without consideration , holding that it fell within the jurisdiction of the commercial courts .","On DATE ORG quashed that ruling and remitted the case for a fresh consideration .","On DATE ORG rejected the applicant \u2019s claims as unsubstantiated .","On DATE ORG quashed that decision and remitted the case for a fresh consideration .","On DATE ORG found in part for the applicant .","On DATE ORG upheld that decision .","On DATE the ORG of ORG , following an objection ( \u043f\u0440\u043e\u0442\u0435\u0441\u0442 ) lodged by its President , quashed the decisions of the lower courts and remitted the case to ORG for a fresh consideration .","On an unspecified date the PERSON company lodged a counterclaim with that court seeking the annulment of the contract .","After DATE the case was reconsidered by the courts at CARDINAL levels of jurisdiction on QUANTITY occasions because the courts of first instance and appeal had committed factual and legal errors in their decisions .","On DATE the ORG allowed the applicant \u2019s claim in part and ordered the successor of the PERSON company , GPE , to transfer QUANTITY of potatoes , worth CARDINAL NORP hryvnas ( ORG ) , and QUANTITY of wheat , worth UAH MONEY , to the applicant . It also ordered the applicant to return QUANTITY of meat , worth UAH CARDINAL , to GPE .","On DATE ORG upheld that judgment . On DATE ORG rejected the applicant \u2019s appeal in cassation .","In the course of the proceedings CARDINAL hearings were adjourned , CARDINAL of which were adjourned due to the applicant \u2019s failure to attend and the remaining CARDINAL due to the need to call witnesses or due to their or their respondent \u2019s failure to attend .","On an unspecified date the Bailiffs started enforcement proceedings in respect of the judgment of DATE .","On DATE ORG modified the procedure of enforcement , ordering the GPE company to pay the applicant ORG CARDINAL for the products due to him under the judgment of DATE .","On DATE ORG , following a request by the ORG company to modify the procedure of enforcement of the judgment of DATE , ordered cross - cancellation of the debts under that judgment in the amount of ORG CARDINAL,CARDINAL and ruled that ORG was to pay the applicant ORG CARDINAL,CARDINAL . The ruling of DATE was not appealed against and became final .","On DATE the judgment of DATE was enforced in full .","In DATE the applicant instituted proceedings against the GPE company , seeking compensation for the difference between the award paid and the in market prices of the products due to him under the judgment of DATE .","On DATE ORG rejected the applicant \u2019s claims as unsubstantiated .","On DATE ORG quashed that decision and discontinued the proceedings in the case , holding that the issue had been settled by the final judgment of DATE .","On DATE ORG quashed the decision of CARDINAL DATE and remitted the case for a fresh consideration to ORG , before which it is still pending ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98559","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF SAYGILI AND B\u0130LG\u0130\u00c7 v. TURKEY","importance":3,"conclusion":"Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants were born in DATE and DATE respectively and live in GPE . PERSON ( \u201c the first applicant \u201d ) is the owner of a DATE newspaper , ORG , and Mr PERSON ( \u201c the second applicant \u201d ) is its editor - in - chief . Until DATE the first applicant owned another DATE newspaper named ORG .","On DATE the First Chamber of ORG convicted PERSON , the editor - in - chief of ORG , of the offence defined in LAW for certain articles published therein . The conviction entailed certain measures being taken against ORG . Pursuant to Additional Article CARDINAL \u00a7 CARDINAL of LAW ( law no . CARDINAL ) then in force , the court ordered the newspaper to cease publication for DATE .","On DATE , while the closure order was yet to be executed , the applicants notified the office of the GPE Governor of their intention to publish a new newspaper , named G\u00fcnl\u00fck Evrensel .","On DATE Mr Sayg\u0131l\u0131 ceased ORG publication . DATE he launched ORG with a new editor - in - chief , Mr PERSON , and a new team of columnists .","On DATE a number of police officers came to the applicants ' printing headquarters to execute the closure order . They found that the applicants had discontinued ORG and started to publish ORG . The officers informed the public prosecutor in PERSON who , in return , concluded that G\u00fcnl\u00fck Evrensel was ORG successor .","On DATE the public prosecutor applied to ORG ) for a seizure warrant . The court issued the warrant authorising the seizure of ORG CARDINAL recent issues .","DATE the applicants filed an objection with the higher criminal court , ORG ) , asserting that G\u00fcnl\u00fck Evrensel was not ORG successor . Unconvinced by the applicants ' assertions , the court rejected the application without giving any reasons , other than stating that \u201c it was established that ORG was ORG successor \u201d .","For DATE the same sequence of events took place ; the prosecutor requested a seizure warrant for the latest issue , ORG granted it and the applicants unsuccessfully lodged a number of objections against those decisions with ORG , which repeated its above conclusion in each of its decisions . In their objections the applicants drew ORG attention to the fact that as G\u00fcnl\u00fck Evrensel had first been published on DATE and ORG was not officially closed down until DATE , it could not possibly be ORG successor . Moreover , ORG had a different editorial team than that of ORG . The applicants also argued that the seizure of ORG was in breach of Articles CARDINAL and CARDINAL of the Convention because , inter alia , the seizure decisions were not adequately reasoned .","On DATE the applicants wrote to ORG and requested that a written order be issued against the seizure orders . They repeated their arguments under Articles DATE and CARDINAL of the Convention .","Meanwhile , the PERSON prosecutor filed a number of criminal charges against the applicants on the ground that they had breached the shutdown order by issuing a successor newspaper . The charges were joined and examined by ORG . On DATE the court acquitted the applicants as it found that the CARDINAL newspapers in question were unrelated . The court also revoked the seizure warrants , which had already been executed by then .","Additional LAW :","\u201c Where offences [ prescribed in LAW ] ... and those threatening national security and general morals are committed via the press , the relevant publication may be ordered to be shut down by the competent court for DATE .","Any publication which manifestly succeeds a previous publication that was so ordered ... shall be seized by a warrant to be issued by a magistrates ' court . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103139","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2011,"docname":"CASE OF SAMBOR v. POLAND","importance":4,"conclusion":"No violation of Art. 3","judges":"J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Vincent A. De Gaetano","text":["The applicant was born in DATE and lives with his father and grandmother in a semi - detached house in PERSON . He suffers from paranoid schizophrenia .","On DATE , after an argument with his father , the applicant barricaded himself in his room and threatened his father with a knife and an axe . At TIME the father called the police . He informed the police that his son had thrown him out of the house and had locked himself inside with a number of different sorts of weapons including an air rifle , axe and knives . When the police arrived the applicant had an axe in his hand . He told the police officers to leave the property while threatening them with an air rifle . The police officers decided not to continue the intervention . When the applicant 's father informed them that the applicant was under psychiatric care and recently refused to take the prescribed medications , they called a psychologist , negotiators and a doctor . Following TIME negotiations , which failed \u2013 the applicant fired several shots at the negotiators who were approaching the house with shields - the police called the antiterrorist brigade . Considering that the situation posed a threat to the applicant 's family members and those who arrived on the spot , at TIME a brigade of CARDINAL policemen commenced their intervention , which consisted in forcing the entrance door to the apartment , deafening the applicant with a grenade and immobilising him . The applicant was aggressive ; he was armed with an axe , knives and an air rifle and he fired at the policemen . According to the applicant , the policemen were also aggressive : they shouted , swore and kicked him and CARDINAL of them shot him in the left leg . The applicant , even when hurt on his leg , still threw the earlier prepared bayonets at the police officers . According to the police , the shot at the applicant 's leg was preceded by CARDINAL warning shot . However , the applicant submitted that CARDINAL bullets still remain lodged in the walls of the house .","Subsequently , the applicant was immobilised and handcuffed . There was an ambulance in front of the house during the whole intervention , so the applicant 's wound was dressed immediately and the applicant was taken to a hospital . On the way he was resuscitated CARDINAL times .","The doctor who admitted the applicant to the hospital found that he had been in a state of post - traumatic haemorrhagic shock ( pourazowy wstrz\u0105s krwotoczny ) which constituted a real danger to his life . On DATE the applicant underwent an operation on his leg . The wound from the bullet resulted in necrosis and on CARDINAL DATE the applicant 's left leg had to be amputated . On DATE the applicant left the hospital .","On DATE the applicant 's grandmother applied to the ORG requesting the prosecution ( wniosek o \u015bciganie ) of the police officers who had participated in the intervention and wounded the applicant .","On DATE the ORG discontinued the investigation , finding that the policemen 's actions had not constituted an offence of abuse of power . In the course of the proceedings before the Prosecutor , CARDINAL witnesses were heard and documentation containing a CARDINAL and CARDINAL pages gathered . The ORG obtained an expert report of a doctor of forensic medicine , who had examined the injuries sustained by the applicant . She further heard the applicant 's grandmother , who said she knew from her grandson that he had been kicked by the policemen when he was lying hurt on the floor . All the members of the antiterrorist brigade denied having kicked the applicant . The prosecutor also heard the applicant and his father as well as outside witnesses . She further examined the medical report issued by the doctor who had admitted the applicant to the hospital and referred to the medical expert report according to which :","\u201c ... the applicant had been admitted to the hospital on DATE . He had been shot in the left leg with the bullet 's entry probably above the kneecap and exit in the calf . His artery and under - knee vein were damaged , with an open comminuted fracture of his left thigh bone . As a result of the above wounds the complication developed into necrosis and the applicant 's left leg had to be amputated . \u201d","As regards the course of the events , the Prosecutor established that :","\u201c After the unsuccessful intervention of the CARDINAL policemen who had initially arrived at the scene , negotiators and a psychologist were sent to the applicant in order to urge him to leave the house . The negotiations lasted TIME but they did not lead to the expected result . The applicant did not react and his only reaction was to fire an air rifle in the direction of the negotiators , who had to protect themselves with shields while approaching the applicant 's windows \u201d .","When the negotiations failed , the anti - terrorist brigade was called . Before their intervention \u201c another attempt to establish contact with the applicant was made , and when this failed the brigade began their intervention \u201d .","In conclusion , the ORG found that the anti - terrorist brigade had used means proportionate to the danger posed by the applicant not only to the policemen and the applicant 's family , but also to third persons . It was also established in the course of the investigation that the policeman who fired at the applicant had first appealed to the applicant to calm down and to put the axe down , and had then fired a warning shot .","On DATE the applicant 's grandmother and father lodged an appeal against the decision of DATE . They complained that the prosecutor had not thoroughly examined the circumstances of the case and that the policemen had abused their powers . In particular , they alleged that the applicant had been shot in such a way that the gun was first pointed at the applicant 's leg and a shot was then fired . They submitted further that not just one warning shot had been fired and that CARDINAL bullets of live ammunition , CARDINAL plastic bullets and CARDINAL deafening grenades remained lodged in the walls of their house . They also demanded that an expert be appointed to examine the way the wounds had been inflicted ; in particular the gunshot wound , but also a broken tooth , wounds to the applicant 's head and a partly torn - off ear .","On DATE the ORG refused to examine the appeal , finding that it had been lodged by persons who were not parties to the proceedings . This decision was challenged by the applicant himself as well as by his father and grandmother .","On DATE the ORG granted the applicant 's appeal and quashed the challenged decision of CARDINAL DATE , so allowing the applicant 's appeal against the decision to discontinue the investigation to be examined by a court .","On DATE the applicant requested ORG ( FAC ) to appoint an expert witness to examine the clothes he had been wearing at the time of the intervention in order to find possible traces of gunpowder .","On DATE the ORG dismissed the appeal against the prosecutor 's decision of DATE . The court found that in the course of the investigation which had been carried out properly , all relevant factors had been established and all necessary evidence had been taken in order to give a decision on the merits . It further found , essentially summarising the reasoning of ORG decision of DATE , that the police 's reaction had been proportionate . As regards the allegations concerning the shot fired at the applicant 's leg , the court found that \u201c the applicant , when heard , did not confirm those circumstances \u201d . The court did not refer to the applicant 's further reservations regarding the alleged shortcomings of the investigation , especially as regards the number of bullets allegedly remaining in the walls of the applicant 's house . Neither did it refer to the applicant 's request to appoint an expert who would examine his clothes .","On an unspecified date the applicant 's father complained to the ORG .","NORP The ORG requested ORG of ORG ( ORG ) for information on the respective proceedings . Having obtained the information requested , on CARDINAL DATE , the ORG did not find grounds for intervention . He had examined the case - file , reconstructed again the course of events which was consistent with the version as established by the prosecutor and court . The ORG confirmed , inter alia , that when the anti - terrorist brigade forced the door , the applicant behaved aggressively , fired with an air rifle towards the policemen , threw an axe in their direction and , subsequently began to throw knives towards them . Then CARDINAL of the police officers , ORG fired \u201c warning shots \u201d and , seeing no reaction on the part of the applicant , fired a shot towards his leg from a distance of QUANTITY . The ORG also found that the applicant had already thrown his father out of their house DATE , and that then he had threatened him with a bayonet . Finally , the ORG pointed to the fact that the request for institution of investigation into the alleged abuse of power by the police officers had been lodged DATE after the events in question .","On DATE ORG opened an investigation against the applicant , who had been charged with an active assault on the police officers ( czynna napa\u015b\u0107 na policj\u0119 ) and with causing a bodily injury or an impairment of health for DATE . In the course of the inquiry the Prosecutor ordered expert reports from a psychologist and CARDINAL psychiatrists , obtained evidence including photographic material and heard CARDINAL witnesses including the applicant and members of his family , as well as all policemen who had participated in the intervention .","On DATE the FAC gave a decision and found that during the intervention CARDINAL policemen had been hurt ; CARDINAL had a wound on his cheek and the other had been shot in the right arm . It was also found however that , at the time of the intervention , because of his mental illness the applicant had been incapable of understanding the significance of his behaviour . For that reason the Prosecutor discontinued the investigation .","The Government produced a detailed report of the intervention prepared by the police following the internal explanatory proceedings . The report confirms the applicant 's aggressive behaviour and explains the circumstances in which the shot was given at the applicant . The report , in its relevant part , reads as follows :","\u201c the police officers breached the entrance door . The officer ORG entered the corridor through the hole in the door and saw a man with an axe in his hand . The man swung his arm towards ORG who jumped back and shouted : \u201c Police ! Drop it ! \u201d The man swung his arm again and ORG fired a warning shot at the ground and then , at the next attack with the axe very close to ORG , ORG , facing a direct threat to his life , directed a shot at the applicant 's leg . The man dropped the axe , cowered , and , limping , went further back into the house \u201d","The regulations on permissible use of direct coercive measures by the police are laid down in section CARDINAL of LAW , which provides that in situations in which the order of a police officer is not obeyed , such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order .","Article CARDINAL \u00a7 CARDINAL of the Ordinance of DATE on the use of coercive measures by the police provides that direct physical force can be used to overpower a person , to counter an attack or to ensure compliance with an order . When such force is being used it is forbidden to strike the person against whom the action is being carried out , except in self - defence , or to counter an attack against another person 's life , health or property ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81928","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2007,"docname":"CASE OF VITZTHUM v. AUSTRIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in PERSON .","On DATE GPE Bezirkshauptmannschaft ) charged the applicant with drunken driving . The applicant , represented by counsel , submitted observations on DATE and DATE .","On DATE ORG issued a penal order ( PERSON ) finding the applicant guilty of drunken driving contrary to LAW and CARDINAL \u00a7 CARDINAL ( a ) of FAC ( Strassenverkehrsordnung ) . As to the alcohol level the authority had regard to the results of a breathalyser test and to the corroborating results of a blood alcohol analysis carried out DATE . It imposed a fine of CARDINAL NORP schillings ( CARDINAL ) on him with DATE imprisonment in default .","The applicant appealed on DATE .","On DATE ORG ( Unabh\u00e4ngiger Verwaltungssenat ) held a hearing at which it questioned the applicant and the QUANTITY police officers who had carried out the breathalyser tests and a further witness .","By decision of CARDINAL DATE ORG , having held a hearing , dismissed the applicant 's appeal . It found that the applicant had driven his car on DATE at TIME having a proportion of alcohol in his breath exceeding the statutory level . He admitted to having consumed alcohol in TIME . Having run out of petrol , the applicant had left the car and had gone to the next petrol station . Upon his return , he had been requested by CARDINAL police officers to undergo breathalyser tests . The tests , carried out at CARDINAL and TIME respectively , had yielded results of CARDINAL and QUANTITY . ORG dismissed the applicant 's request to take an expert opinion in order to show that the difference in these results was due to his having consumed one and a QUANTITY of beer when he went to fetch petrol and that he had , before that , not been driving his car in a state of drunkenness . Having regard to the instructions for use of the breathalyser at issue , ORG noted that the difference in the CARDINAL test results was not significant .","In any case , it found that the applicant 's defence was not credible as he had stated at his first interrogation to have parked his car at TIME and had explicitly answered the police officers ' question whether he had consumed alcohol after that in the negative . It was only in his written submissions of DATE that he had claimed to have consumed more beer after TIME The bill submitted by the applicant did not support his defence as the innkeeper had stated that he had given the applicant this bill DATE after the incident on his explicit request . He had not remembered the applicant and could not confirm whether he had actually consumed beer at his inn at the relevant time .","The applicant lodged a complaint with ORG ( Verwaltungsgerichtshof ) on DATE . He complained in particular about the refusal of his request to take an expert opinion . On DATE ORG submitted observations in reply . The applicant made further submissions on DATE and DATE .","On DATE ORG , having deliberated on DATE , dismissed the applicant 's complaint as being unfounded . It found in particular that ORG assessment of evidence did not suffer from any defects and that it had given detailed and convincing reasons for its refusal to take the expert opinion requested by the applicant .","The decision was served on the applicant 's counsel on DATE ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79022","languageisocode":"ENG","respondent":"LVA","branch":"GRANDCHAMBER","date":2007,"docname":"CASE OF SISOJEVA AND OTHERS v. LATVIA","importance":1,"conclusion":"No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)","judges":"Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu B\u00eersan;Elisabet Fura;Elisabeth Steiner;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Jautrite Briede;Jean-Paul Costa;Karel Jungwiert;Lucius Caflisch;Luzius Wildhaber;Matti Pellonp\u00e4\u00e4;Mindia Ugrekhelidze;Nicolas Bratza;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych","text":["The applicants are a married couple , PERSON ( \u201c the first applicant \u201d ) and PERSON ( \u201c the second applicant \u201d ) , and their daughter , PERSON ( \u201c the third applicant \u201d ) . They were born in DATE and DATE respectively . The second and third applicants have NORP nationality , while the first applicant has no nationality . All CARDINAL live in GPE ( GPE ) .","The first CARDINAL applicants entered NORP territory in DATE and DATE respectively , when the territory formed part of GPE . The second applicant , who was a member of the NORP armed forces at the time , was stationed in GPE and remained there until he finished his military service in DATE . The third applicant and her elder sister , PERSON , were born in NORP territory .","Following the break - up of GPE and the restoration of NORP independence in DATE , the applicants , who had previously been NORP nationals , became stateless .","In DATE Tatjana married a NORP national . She is mother to CARDINAL minor children who have NORP nationality .","In DATE the first and second applicants applied to ORG of the ORG \u2019s ORG ( GPE ministrijas GPE un imigr\u0101cijas departaments \u2013 \u201c the GPE \u201d ) to obtain permanent - resident status and to be entered in the register of residents of GPE Latvijas ORG re\u0123istrs ) . However , on DATE the ORG issued them with temporary residence permits only .","The first and second applicants then lodged an application with ORG , requesting it to direct the ORG to enter them in the register of residents as permanent residents . In a judgment delivered on DATE , which was upheld on DATE following an appeal on points of law , the court allowed their application . It considered that under the legislation in force the situation of the second applicant , who had left the army before CARDINAL DATE \u2013 the date on which GPE had declared its independence \u2013 could not be equated with that of a non - NORP serviceman temporarily present on NORP soil , who would be entitled to a temporary residence permit only . ORG subsequently entered all the applicants in the register of residents .","In the meantime , in DATE , the first CARDINAL applicants had each obtained CARDINAL former NORP passports and had therefore been able to have their place of residence registered in GPE ( GPE ) despite already having a registered place of residence in GPE ( pieraksts or dz\u012bvesvietas re\u0123istr\u0101cija ) . The GPE only discovered this fact in DATE .","In CARDINAL decisions dated DATE and DATE , the ORG police decided not to institute criminal proceedings against the applicants for using false identity papers . However , ORG imposed an administrative penalty of CARDINAL lati ( ORG ) ( MONEY ( ORG ) ) on them for breach of the passport regulations . ORG also applied to ORG to have the proceedings reopened to consider new facts , alleging fraudulent behaviour on the part of the first CARDINAL applicants . ORG also noted that the third applicant had followed the example of her parents and sister in DATE , obtaining CARDINAL passports and having her place of residence registered in both GPE and GPE .","By an order of CARDINAL DATE , ORG , ruling on the application for the proceedings to be reopened , allowed the ORG \u2019s application , quashed its own judgment of CARDINAL DATE and ordered the removal of the ORG names from the register of residents . The first CARDINAL applicants appealed to ORG which , by an order of DATE , quashed the decision in question and referred the case back to ORG .","In DATE the second and third applicants applied for and obtained NORP nationality . On DATE the NORP embassy in GPE issued them with ORG passports .","In DATE the third applicant , by now an adult , was joined as a party to the proceedings before ORG .","By a letter of CARDINAL DATE , ORG for the implementation of the agreement between the governments of GPE and GPE on the social welfare of retired military personnel of GPE and their family members residing on the territory of GPE ( \u201c the NORP agreement \u201d \u2013 see paragraph CARDINAL below ) requested ORG ( GPE ministrijas GPE un migr\u0101cijas lietu p\u0101rvalde \u2013 \u201c the ORG \u201d ) , which had replaced the ORG , to issue the applicants with permanent residence permits , on the ground that they had the right to remain in GPE under the above agreement . In a second letter sent DATE , ORG informed ORG that the first applicant had neither NORP nor any other nationality .","In DATE the applicants submitted a further request to ORG . In a joint memorial they argued that , as the second and third applicants had NORP nationality , they had the right to obtain permanent residence permits under the NORP - Latvian agreement . The first applicant , who had no nationality , contended that she was entitled to the status of a \u201c permanently resident noncitizen ( nepilsonis ) \u201d under the PERSON on the status of former GPE citizens without NORP or other citizenship ( \u201c LAW \u201d \u2013 see paragraph CARDINAL below ) .","In court , the applicants made no attempt to deny the actions of which they had been accused by ORG and the ORG , but maintained that those actions had been in breach only of NORP law and therefore had no effect on their rights in GPE .","In a judgment of DATE , ORG Instance allowed the ORG request . It noted that the applicants\u2019 place of residence had been legally registered in ORG DATE and that they had lived there from then onwards . In the court \u2019s view , since the procuring of second passports by the applicants and their registration in GPE were illegal and void acts , they had no impact on the applicants\u2019 legal status in GPE . The court also noted that the second applicant was on the list of former members of the NORP armed forces in receipt of a NORP military pension and entitled to remain in GPE . That list had been drawn up jointly by the QUANTITY governments in accordance with the NORP - Latvian agreement . Consequently , the court held that the first applicant was entitled to apply for a passport as a \u201c permanently resident non - citizen \u201d and that the second and third applicants were entitled to obtain permanent residence permits .","The ORG appealed against that judgment to ORG . In a judgment of DATE , ORG dismissed the appeal , endorsing the findings and reasoning of the firstinstance court .","The ORG then lodged an appeal on points of law with the ORG of ORG . In a judgment of DATE , the ORG quashed ORG judgment and declared it null and void . The ORG found that secretly obtaining CARDINAL passports and registering places of residence in CARDINAL different countries , failing to disclose the second passports , and supplying false information to the authorities when applying for regularisation constituted serious breaches of NORP immigration law . The ORG also referred to section CARDINAL(CARDINAL ) , sub - paragraph CARDINAL , of LAW , which stated that the status of \u201c permanently resident noncitizen \u201d could not be granted to persons who , on DATE , had their permanent place of residence registered in a member ORG of ORG ( of which GPE is a member ) . The ORG considered that the provision in question was fully applicable to the applicants\u2019 case .","The ORG also noted that the judgment of ORG of DATE had been subsequently set aside when the proceedings were reopened , thereby depriving the entry of the applicants in the register of residents of any legal basis . It concluded that the second and third applicants , since they did not satisfy the requirements of the PERSON on aliens and stateless persons ( entry and residence ) ( \u201c LAW \u201d \u2013 see paragraph CARDINAL below ) , were also not entitled to obtain permanent residence permits . Consequently , the ORG set aside the judgment of DATE and referred the case back to the appellate court .","For procedural reasons , the case was transferred to ORG which , in a judgment of DATE , rejected the applicants\u2019 application , reaffirming the reasons given by the ORG . Unlike ORG , ORG considered that the first applicant had NORP nationality under GPE Nationality Act . With regard to the second applicant , it considered that the fact that an individual was on the list of retired army personnel merely attested to the fact that the person concerned actually resided in GPE and was in receipt of a NORP military pension ; it did not in any sense confer entitlement to a residence permit .","In a judgment of DATE , the ORG of ORG dismissed an appeal by the applicants on points of law , endorsing in substance the arguments of ORG .","In CARDINAL letters dated DATE and DATE , the ORG reminded the applicants that they were required to leave GPE .","On TIME , the first applicant , PERSON , was summoned to the regional headquarters of the security police ( PERSON policija ) . An officer of the security police asked her a number of questions , some of them relating to her application to the ORG and to an interview she had given to journalists from a NORP television channel on the subject . In particular , the police asked the first applicant how the NORP journalists had made contact with her , how she had heard about the possibility of lodging an individual application with the ORG , how she had found lawyers to represent her before the ORG , and how she had known that certain persons had bribed ORG officials in order to obtain NORP residence permits . In addition , the police officer asked her several questions about her professional career and about the members of her family .","The dialogue between the first applicant and the police officer , as reconstructed by the applicant and sent to her lawyers on DATE , ran as follows :","\u201c Police officer : How did the television channel ORG find you ?","Applicant : We had had telephone calls in DATE [ and ] DATE . At the time , we had refused to meet them , but journalists are bloodhounds , they always get what they want .","Police officer : And then ?","Applicant : They telephoned from GPE and said they wanted to meet us and talk to us . I agreed . They wanted to talk to several [ people ] who had brought cases before the courts .","Police officer : When did they phone ?","Applicant : It was a DATE TIME , TIME They came round on the DATE , at TIME If you want to come round [ too ] , you \u2019re welcome . Our door is always open .","Police officer : You said that you PERSON taken the case all the way to ORG , did n\u2019t you ?","Applicant : Yes , I did . There were CARDINAL sets of proceedings ; we fought and fought [ again ] , and eventually we turned to ORG , because of the people in charge in the [ Directorate ] . They saw it as a game to get us deported from the country , while we wanted to prove that we were in the right . [ Their ] attitude towards us was based on prejudice : we had n\u2019t broken any laws in GPE .","Police officer : How and where did you find out that you could apply to ORG ?","Applicant : The issue of our regularisation was discussed several times by ORG . We had approached ORG . We had lawyers . The representatives of ORG and the [ ORG ] had told us at the last meeting that they had no objections to raise or accusations to make as far as we were concerned , and that everything would be fine . Unfortunately , they have n\u2019t kept their promises so far . ORG advised us to lodge an application with ORG about the length of the proceedings if the case was n\u2019t resolved .","Police officer : And how did you find those lawyers ?","Applicant : With the help of the lawyers in the social welfare office we were registered with .","Police officer : Perhaps your lawyers threatened you , saying that if you did n\u2019t give information to ORG they would stop working with you ?","Applicant : That \u2019s nonsense . They told us not to give information to anyone without their consent , not even to ORT ...","Police officer : You said that over DATE people had lodged applications ?","Applicant : Yes , I did . Actually , there are even more people involved : I meant that there were CARDINAL families . We \u2019ve all been through the courts : some of us once , some twice , and some even CARDINAL times . A lot of people solved the problem by paying backhanders .","Police officer : How do you know that ?","Applicant : We were all in the same boat and we helped one another . We used to say to one another that if someone had money , it was better for him to pay , to avoid a trial . [ The first applicant then gave the example of CARDINAL families whose status had been regularised after they had bribed ORG officials ; she named CARDINAL of the officials concerned . ]","Police officer : And why did you not come to us ?","Applicant : We did n\u2019t know you could help us .","Police officer : How did you come by the information that CARDINAL people had lodged applications ?","Applicant : Actually , the figure is higher . We \u2019ve all had a lot of problems . [ The applicant dwelt in detail on CARDINAL specific cases concerning the regularisation of persons in a similar situation to her own . ]","Police officer : What does your husband think about the case ?","Applicant : He supports [ me ] : what would you do ?","[ The police officer then asked the applicant a series of questions about her education , her work , her husband \u2019s work and the family \u2019s financial situation . ]","Police officer : Once more , how did you find out that you could take your case to ORG ?","Applicant : We read the papers , we watch television ; the cases of GPE , PERSON , PERSON and several other families were reported in the media . We approached ORG , who gave us advice and even offered to [ help us ] find a lawyer . Strange , is n\u2019t it ? It was very hard for us , having to bring a case against GPE before ORG , but all the avenues open to us to try and resolve the problem in GPE had been exhausted . It \u2019s the fault of the [ Directorate and its officials ] , who flout the law and force people to leave GPE . They \u2019re the ones who bring shame on GPE . We have n\u2019t broken any law .","Police officer : When is the case going to be examined ?","Applicant : We do n\u2019t know .","Police officer : What documents have you sent them ?","Applicant : The courts\u2019 decisions . \u201d","The Government contested the accuracy of this record , particularly in view of the length of time that had elapsed between the interview itself and the drafting of the document . The first applicant conceded that the document was probably less than perfect , given that it had been drafted from memory DATE after the fact ; she acknowledged that several other questions ( which she could not recall ) might have been asked during the interview . However , she contended that her record reflected with sufficient accuracy the content and tone of the interview .","On DATE the Head of the ORG sent a letter to each of the applicants explaining the procedure to be followed in order to regularise their stay in GPE . The relevant passages of the letter sent to the first applicant ( PERSON ) read as follows :","\u201c ... The [ Directorate ] ... would remind you that , in accordance with the principle of proportionality , no order has hitherto been made for your deportation , and that it is open to you to regularise your stay in GPE in accordance with the [ country \u2019s ] legislation .","Under sections CARDINAL and CARDINAL of the Status of Stateless Persons Act , persons who are not considered to be nationals of any ORG under the laws of that ORG ... and who are legally resident in GPE , may obtain stateless - person status .","You satisfy the above requirements ...","In view of the above , the ORG is prepared to regularise your stay in GPE by entering your name in the register of residents as a stateless person [ resident ] in GPE and by issuing you with an identity document on that basis .","In order to complete the necessary formalities , you will need to go in person to the LOC district office of the ORG , bringing with you your identity papers , your birth certificate and CARDINAL photographs ... \u201d","The letters sent to the other CARDINAL applicants were similar in content . The letter to the second applicant ( PERSON ) stated in particular :","\u201c ... If your wife , PERSON , avails herself of the opportunity to regularise her stay in GPE in accordance with the provisions in force , you will be entitled , under LAW , to obtain a residence permit . The ORG is not aware of any reason which would prevent you from applying for and obtaining a residence permit in GPE .","Under the terms of section CARDINAL of LAW , only aliens residing in GPE on the basis of a residence permit may apply to the ORG for a residence permit ... In other cases , and where such a move accords with international human rights provisions and the interests of ORG , or on humanitarian grounds , the Head of the ORG may authorise the person concerned to submit the relevant papers to the ORG in order to apply for a residence permit . As no order has hitherto been made for your deportation , you may submit the relevant papers ... to the ORG district office of the Directorate ...","...","In view of the above , the ORG is prepared to issue you with a residence permit at your wife \u2019s place of residence , in accordance with section CARDINAL of LAW , on condition that PERSON completes the necessary formalities in order to regularise her stay in GPE as a stateless person , and that she responds to the invitation from the LOC office of the Directorate ... \u201d","Lastly , the letter to the third applicant ( PERSON ) contained the following passages :","\u201c ... If your mother , PERSON , avails herself of the opportunity offered to her and , after completing the necessary formalities , regularises her stay in GPE in accordance with the provisions in force , you will be entitled , under LAW , to obtain a residence permit . The ORG is not aware of any reason which would prevent you from applying for and obtaining a residence permit in GPE .","...","The ORG would further inform you that , in accordance with section CARDINAL ) of LAW , in cases not provided for by the LAW , a temporary residence permit may be issued by the Minister of the ORG , where such a move is in accordance with the provisions of international law . Consequently , you are also entitled to apply to the Minister of the ORG for a residence permit valid for a period longer than that specified in section CARDINAL ) , sub - paragraph CARDINAL , of LAW . Furthermore , after a period of residence of DATE on the basis of a temporary residence permit , you may apply for a permanent residence permit in accordance with section FAC ) , sub - paragraph CARDINAL , of LAW ... \u201d","In addition , a letter containing the above information concerning the CARDINAL applicants was sent to ORG . On DATE , CARDINAL DATE , the Head of the ORG signed CARDINAL decisions formally regularising the applicants\u2019 status in GPE . More specifically , he ordered that the first applicant be entered in the register of residents as a \u201c stateless person \u201d , that she be issued with an identity document valid for DATE , and that the second and third applicants be issued with temporary residence permits valid for DATE and DATE respectively . However , regularisation of the status of the second and third applicants was contingent upon that of the first applicant . In other words , in order for PERSON and PERSON to obtain residence permits , PERSON first had to submit the relevant documents to the ORG .","None of the applicants complied with the instructions outlined above in order to obtain residence permits .","By Decree no . CARDINAL of DATE , ORG kabinets ) instructed the Minister of the ORG to issue PERSON and PERSON with DATE temporary residence permits , \u201c in accordance with section CARDINAL ) of the Immigration Act \u201d . In a letter sent on DATE , the Government informed ORG measure , pointing out that , after DATE had elapsed , the CARDINAL applicants in question could obtain permanent residence permits","On DATE the applicants applied to the ORG to have their stay regularised on the basis they had requested initially , that is , for the first applicant to be granted the status of \u201c permanently resident noncitizen \u201d and for the other CARDINAL applicants to be issued with permanent residence permits . The ORG replied on DATE , DATE . After outlining the background to the case before the domestic courts and in GPE , the ORG went on :","\u201c ... On DATE you stated that you would not consider the ORG \u2019s proposals until after ORG had delivered its judgment .","In accordance with ... ORG ... in force at the time , an order was given for PERSON to be issued with an identity document for stateless persons , and she was told that the authorities were willing to grant her stateless - person status . It was [ therefore ] open to PERSON to take advantage of that option , but she failed to do so . However , in accordance with the principle of respect for personal rights and the principle of legitimate expectation , the ORG has not set aside its decision of DATE in respect of PERSON . Consequently , it remains open to her to regularise her stay in GPE under section CARDINAL ) of LAW and paragraph CARDINAL of its transitional provisions . Since PERSON entitlement to stateless - person status ... was recognised before the entry into force of that LAW , were she to obtain an identity document for stateless persons she would also be issued with a permanent residence permit ... As for PERSON and PERSON , they would be entitled , on the same basis , to obtain temporary residence permits .","...","The ORG would further point out that , on DATE , ORG ... instructed the Minister of the ORG to issue PERSON and PERSON with DATE temporary residence permits , under section CARDINAL ) of LAW .","In view of the above , the ORG would remind you of the possibility of regularising your stay in GPE , on the following basis : PERSON may obtain stateless - person status and be issued with a permanent residence permit ; PERSON and PERSON , meanwhile , may apply for and obtain temporary residence permits , in accordance with section CARDINAL ) of LAW . ... \u201d","The remainder of the letter explained in detail to each of the applicants the procedure to be followed and the documents to be submitted in order to have their stay regularised , and the tax rates which applied for that purpose . The applicants did not take the steps indicated by the ORG .","On CARDINAL and DATE , the relevant official of the border police questioned the applicants , asking them why they had not regularised their stay . Following that conversation , the Commander of the border police requested details from the Head of the ORG concerning the applicants\u2019 precise status in GPE . By a letter of CARDINAL DATE , the latter explained that , since DATE , there had been sufficient legal basis for issuing orders for the applicants\u2019 deportation , but that no such orders had been issued on the grounds of proportionality and in view of the proceedings pending before ORG .","By a letter of DATE , the ORG reminded the applicants once more that they had the possibility of regularising their stay . No reply was forthcoming .","As matters stand , the applicants are resident in GPE without valid residence permits . According to the information supplied by the applicants , which has not been disputed by the Government , PERSON has been unemployed since DATE . PERSON works as a technician in a municipal communal heating plant in Al\u016bksne ; despite being cautioned repeatedly by the authorities , his employer has consistently refused to dismiss him on the sole ground that he is illegally resident in GPE . PERSON , meanwhile , obtained a law degree from ORG ( PERSON instit\u016bts ) in DATE . The applicants contend that , owing to her irregular status , she has to date been unable to find work .","NORP legislation on nationality and immigration distinguishes several categories of persons , each with a specific status :","( a ) NORP citizens ( Latvijas Republikas pilso\u0146i ) , whose legal status is governed by LAW ( GPE likums ) ;","( b ) \u201c permanently resident non - citizens \u201d ( nepilso\u0146i ) \u2013 that is , citizens of the former GPE who lost their NORP citizenship following the break - up of the GPE but have not subsequently obtained any other nationality DATE who are governed by the Law of DATE on the status of former GPE citizens without NORP or other citizenship ( PERSON \u201c PERSON to biju\u0161o ORG pilso\u0146u statusu , kuriem nav Latvijas vai citas valsts pilson\u012bbas \u201d \u2013 \u201c the NonCitizens Act \u201d ) ;","( c ) asylum - seekers and refugees , whose status is governed by LAW ( Patv\u0113ruma likums ) ;","( d ) \u201c stateless persons \u201d ( bezvalstnieki ) within the meaning of DATE Status of Stateless Persons Act ( Likums \u201c ORG bezvalstnieka statusu Latvijas NORP \u201d ) , read in conjunction with the PERSON of DATE on aliens and stateless persons ( entry and residence ) ( \u201c the Aliens Act \u201d ) and , since DATE , with LAW of DATE ( GPE likums ) . On DATE the Status of Stateless Persons Act was replaced by a new LAW ;","( e ) \u201c aliens \u201d in the broad sense of the term ( \u0101rzemnieki ) , including foreign nationals ( \u0101rvalstnieki ) and stateless persons ( bezvalstnieki ) falling solely within the ambit of LAW ( before DATE ) , and LAW ( after DATE ) .","Section CARDINAL of LAW formally set forth detailed criteria for obtaining the status of \u201c permanently resident non - citizen \u201d . In the version in force since DATE , the first paragraph of section CARDINAL reads as follows :","\u201c The persons governed by LAW \u2013 \u2018 non - citizens\u2019 \u2013 shall be those citizens of the former GPE , and their children , who are resident in GPE ... and who satisfy all the following criteria :","NORP on DATE they were registered as being resident within the territory of GPE , regardless of the status of their housing ; or their last registered place of residence by DATE was in GPE ; or a court has established that before the above - mentioned date they had been resident within NORP territory for not less than DATE ;","they do not have NORP citizenship ; and","NORP they are not and have not been citizens of any other ORG . \u201d","The relevant provisions of the former Status of Stateless Persons Act read as follows .","Section CARDINAL","\u201c ( CARDINAL ) The status of stateless person may be granted to persons whose status is not defined either by the PERSON on the status of former GPE citizens without NORP or other citizenship or by LAW , provided they","...","NORP are legally resident in GPE .","( CARDINAL ) NORP persons who have obtained outside GPE documents attesting to the fact that they are stateless may obtain the status of stateless person in GPE only if they have obtained a permanent residence permit in GPE .","... \u201d","Section CARDINAL(CARDINAL )","\u201c Stateless persons shall be issued with an identity document for stateless persons , which shall also serve as [ a ] travel document . \u201d","Section CARDINAL","\u201c ( CARDINAL ) NORP persons in GPE shall enjoy all the human rights enshrined in LAW [ Satversme ] .","( CARDINAL ) In addition to the rights referred to in the first paragraph of this section , stateless persons shall be entitled","NORP to leave and return to GPE freely ;","NORP to be joined by their spouse from outside the country , and by their own minor children or those dependent on their spouse , in accordance with the rules laid down by the Aliens and ORG ) Act ;","to preserve their native language , culture and traditions , provided these are not in breach of the law ;","...","( CARDINAL ) During their stay in GPE , stateless persons shall be bound by [ the provisions of ] NORP law . \u201d","DATE . On DATE ORG enacted a new LAW likums ) , which came into force on DATE and replaced the former Status of Stateless Persons Act . The relevant provisions of the new LAW read as follows .","\u201c In GPE , an individual may be recognised as a stateless person if no other ORG has recognised him or her as a national in accordance with its own laws . \u201d","\u201c ( CARDINAL ) NORP In order to be recognised as a stateless person , the individual concerned must submit to the [ Directorate ] :","a [ written ] application ;","an identity document ;","a document issued by a competent body in the foreign ORG , to be determined by the ORG , certifying that the person concerned is not a national of that ORG and is not guaranteed nationality of that ORG , or a document certifying the impossibility of obtaining such a document .","( CARDINAL ) Where , for reasons beyond his or her control , the individual concerned is unable to produce CARDINAL of the documents referred to in points CARDINAL or CARDINAL of the first paragraph , an official instructed by the Head of the ORG shall decide whether or not to grant him or her the status of stateless person . The decision shall be taken on the basis of information available to the ORG supported by documentary evidence . \u201d","\u201c ( CARDINAL ) The stateless person shall reside in GPE in accordance with the provisions of LAW .","( CARDINAL ) A stateless person legally resident in GPE may obtain a travel document in accordance with the statutory arrangements ... \u201d","\u201c A stateless person legally resident in GPE shall enjoy the rights guaranteed by ... LAW DATE on the Status of Stateless Persons . \u201d","The relevant provisions of the former Aliens Act , in force prior to CARDINAL DATE , read as follows .","\u201c The Head of the ORG or of the regional office of the ORG shall issue a deportation order ...","...","( CARDINAL ) NORP if the alien or stateless person is in the country without a valid visa or residence permit ... \u201d","\u201c The individual concerned shall leave the territory of GPE within DATE after the deportation order has been served on him or her , provided that no appeal is lodged against the order in the manner prescribed in this section .","Persons in respect of whom a deportation order is issued may appeal against it within DATE to the Head of the ORG , who shall extend the residence permit pending consideration of the appeal .","An appeal against the decision of the Head of the ORG shall lie to the court within whose territorial jurisdiction the ORG \u2019s headquarters are situated , within DATE after the decision has been served . \u201d","Since DATE LAW cited above has no longer been in force ; it has been repealed and replaced by LAW . The relevant provisions of LAW read as follows .","\u201c The present Act uses the following definitions :","( CARDINAL ) an alien [ \u0101rzemnieks ] \u2013 a person who is neither a NORP citizen nor a \u201c [ permanently resident ] non - citizen \u201d of GPE ;","... \u201d","\u201c In cases not covered by LAW , the temporary residence permit shall be granted by the Minister of the Interior , where the relevant decision accords with the provisions of international law or the interests of ORG , or on humanitarian grounds . \u201d","\u201c ( CARDINAL ) In accordance with the arrangements laid down in the present LAW , the following persons may apply for a permanent residence permit :","...","an alien who has been resident without interruption in GPE for DATE immediately prior to submission of the application ... ;","...","( CARDINAL ) NORP In cases not covered by the present Act , the permanent residence permit shall be granted by the Minister of the Interior , where it accords with the interests of the State .","...","( CARDINAL ) The aliens referred to in paragraph CARDINAL , sub - paragraph ... CARDINAL , of this section may obtain a permanent residence permit if they have a command of the official language . The level of knowledge of the official language [ and ] the means of verifying that knowledge shall be determined by ORG .","...","( CARDINAL ) PERSON who do not satisfy the requirements set forth in paragraph CARDINAL of this section shall nevertheless be entitled to continue to reside in GPE on the basis of a temporary residence permit . \u201d","\u201c [ By way of exception , ] [ t]he Head of the ORG may authorise [ the person concerned ] to submit an application for a residence permit to the ORG , where such authorisation accords with the provisions of international law or the interests of ORG , or on humanitarian grounds . \u201d","\u201c ... When the time - limit set down [ for submitting an application for a residence permit ] has passed , the Head of the ORG may authorise [ the person concerned ] to submit the [ relevant ] documents , where such authorisation accords with the interests of ORG , or on grounds of force majeure or humanitarian grounds . \u201d","\u201c ( CARDINAL ) Where a decision is taken to refuse an application by an alien for a residence permit or to withdraw his or her residence permit , an appeal may be lodged against that decision ... with the Head of the ORG , within DATE of the entry into force of the decision .","( CARDINAL ) Where the Head of the ORG refuses an application for a residence permit an appeal may be lodged ... with the courts against that decision , in the manner prescribed by law ... \u201d","\u201c ( CARDINAL ) The [ relevant ] official of the ORG shall issue a deportation order and determine the length of the ban on re - entering NORP territory , requesting the alien concerned to leave GPE within DATE , where he or she has ... acted in breach of the rules on the entry and residence of aliens in GPE . ...","( CARDINAL ) The Head of the ORG may set aside a deportation order ... or suspend execution thereof on humanitarian grounds . \u201d","\u201c ( CARDINAL ) The alien concerned may appeal against the deportation order and the length of the ban on re - entering NORP territory laid down therein to the Head of the ORG , within DATE of the order \u2019s entry into force . He or she shall have the right to remain in GPE while the appeal is being considered .","( CARDINAL ) The alien concerned may appeal before the courts against the decision of the Head of the ORG concerning the deportation order and the length of the ban on reentering NORP territory laid down therein , within DATE of the decision \u2019s entry into force . The lodging of an appeal with the court shall not suspend execution of the decision . \u201d","\u201c ( CARDINAL ) Within DATE of establishment of the facts detailed in the present paragraph , the [ relevant ] official of the ORG shall take a forcible expulsion decision in respect of the alien and determine the length of the ban on re - entering NORP territory ... , where :","NORP the alien has not left GPE within DATE of receiving the deportation order , as required by CARDINAL ) of the present LAW , and has not appealed against the order under LAW ;","...","( CARDINAL ) In the cases referred to in the first sub - paragraph of paragraph CARDINAL of this section , no appeal shall lie against the forcible expulsion decision ...","...","( CARDINAL ) The Head of the ORG may set aside a forcible expulsion decision or stay its execution on humanitarian grounds . \u201d","At the time of the facts reported by the applicants , the relevant provisions of LAW ( Administrat\u012bvo p\u0101rk\u0101pumu kodekss ) read as follows .","Section CARDINAL","\u201c ... Use of a passport which has been replaced by a new passport shall be punishable by a fine of CARDINAL lati . \u201d","Section CARDINAL","\u201c Failure to provide the offices of the NORP ORG with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between CARDINAL and QUANTITY lati . \u201d","An agreement between GPE and GPE on the social welfare of retired military personnel of GPE and their family members residing on the territory of GPE was signed in GPE on DATE . It was ratified by GPE on DATE and came into force on DATE . Under the terms of the second paragraph of LAW , persons to whom the agreement applied and who were permanently resident in NORP territory before DATE retained the right to reside without hindrance in GPE if they so wished .","Section CARDINAL(CARDINAL ) of LAW ( NORP procesa likums ) , in force since DATE , provides :","\u201c An administrative act may not be executed if DATE have elapsed since it became enforceable . In calculating the limitation period , any period during which implementation of the administrative act was suspended shall be deducted . \u201d","The main provisions governing interviews similar to that complained of by the first applicant are contained in the PERSON of DATE on operational measures ( Operat\u012bv\u0101s darb\u012bbas likums ) . The \u201c operational measures \u201d referred to in the PERSON cover all operations , covert or otherwise , aimed at protecting individuals , the independence and sovereignty of the ORG , the constitutional system , the country \u2019s economic and scientific potential , and classified information against external or internal threats ( section CARDINAL ) . Operational measures are aimed in particular at preventing and detecting criminal offences , tracing the perpetrators of criminal offences and gathering evidence ( section CARDINAL ) .","The most straightforward measure is the \u201c intelligence - related operational procedure \u201d ( operat\u012bv\u0101 izzin\u0101\u0161ana ) , designed to \u201c obtain information on events , persons or objects \u201d ( section CARDINAL(CARDINAL ) ) . The procedure takes CARDINAL of the following forms :","( i ) an \u201c operational request for intelligence \u201d ( operat\u012bv\u0101 aptauja ) , during which \u201c the persons concerned are asked questions about the facts of interest to the [ relevant ] authorities \u201d ( section CARDINAL(CARDINAL ) ) ;","( ii ) \u201c operational intelligence gathering \u201d ( operat\u012bv\u0101 uzzi\u0146a ) , which involves \u201c gathering information relating to specific persons \u201d ( section CARDINAL(CARDINAL ) ) ;","( iii ) \u201c operational clarification of intelligence \u201d ( operat\u012bv\u0101 noskaidro\u0161ana ) , consisting in obtaining information by covert or indirect means where there is reason to suspect that the informer will be unwilling to supply the information directly ( section CARDINAL(CARDINAL ) ) .","All operational measures must be implemented in strict compliance with the law and human rights . In particular , no harm \u2013 physical or otherwise \u2013 may be caused to the persons concerned , nor may they be subjected to violence or threats ( section CARDINAL(CARDINAL ) to ( CARDINAL ) ) . Any person who considers that he or she has suffered harm as a result of the actions of a member of the security forces may lodge a complaint with the prosecuting authorities or the relevant court ( section CARDINAL ) .","Under section CARDINAL of the CARDINAL DATE National Security Establishments Act ( NORP dro\u0161\u012bbas iest\u0101\u017eu likums ) , the security police come under the supervision of ORG . They have powers to deploy operational measures in order to combat corruption ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["34","8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85814","languageisocode":"ENG","respondent":"SVN","branch":"ADMISSIBILITY","date":2008,"docname":"BITENC v. SLOVENIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat","text":["The applicant was born in DATE and lives in PERSON .","ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , ORG Attorney - General .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant \u2019s daughter PERSON made a contract of purchase with a company named GPE zadruga ORG ( \u201c SCT \u201d ) to buy a house which ORG was planning to build . GPE later divorced and changed her name to S.B.","On DATE the applicant and her husband instituted civil proceedings on behalf of their daughter ( \u201c the plaintiff \u201d ) in ORG ( PERSON sodi\u0161\u010de v PERSON ) requesting that ORG comply with the contract and seeking damages for non - completion . They had legal representation in these proceedings .","On DATE , after CARDINAL hearings were held , the court issued an interim judgment upholding ORG \u2019s claim on the merits .","On DATE CARDINAL ORG lodged an appeal with ORG ( PERSON sodi\u0161\u010de v PERSON ) .","On DATE the court allowed the appeal and set aside the first - instance court \u2019s judgment as it was premature .","In order to estimate the amount of damage incurred by the plaintiff , the first - instance court appointed CARDINAL experts in construction engineering , CARDINAL of whom was subsequently replaced by another expert .","Until DATE , DATE the Convention took effect with respect to GPE , the court held CARDINAL hearings .","On DATE the reform of the NORP judicial system took effect and the case was transferred to ORG ( PERSON sodi\u0161\u010de v PERSON ) .","On DATE the plaintiff requested that a date be scheduled for a hearing .","On DATE the court held a hearing .","On DATE the court , upon the plaintiff \u2019s request , appointed a new expert in construction engineering who delivered an expert opinion on DATE .","On DATE the court held a hearing where the plaintiff increased her claim . As a result , ORG raised an objection to the amendment , arguing that the claim was barred by prescription ( zastaranje ) . It also objected to the subject - matter jurisdiction of the court . The latter dismissed the objections in a separate decision issued that DATE .","On DATE SCT appealed against this decision to ORG .","On DATE the court allowed the appeal , set aside the contested decision and remitted the case to the first - instance court for fresh examination .","On DATE ORG held a hearing and declared the case out of its jurisdiction . It transferred the case to ORG ( Okro\u017eno sodi\u0161\u010de v PERSON ) .","On DATE ORG held a hearing and heard one of the appointed experts .","On DATE the court sought additional information from the appointed expert which he provided DATE .","On DATE the court held a hearing . SCT informed the court that bankruptcy proceedings had been instituted against it . The court decided to issue a written judgment .","The judgment , upholding ORG claim in part , was served on the plaintiff on DATE .","On DATE the applicant \u2019s lawyer also received a copy of the judgment .","On DATE the judgment of DATE became final ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85681","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2008,"docname":"CASE OF REGENT COMPANY v. UKRAINE","importance":3,"conclusion":"Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - Government to pay the judgment debt","judges":"Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant is a privately owned commercial company , ORG , registered in GPE ( the GPE ) . The company \u2019s actual address is in GPE ( GPE ) . It was represented before the ORG by its director , PERSON PERSON , who resides in GPE .","NORP In DATE ORG s.r.o . ( \u201c COM \u201d ) , a limited liability company registered in GPE ( GPE ) instituted proceedings in ORG at ORG ( ORG \u043a\u043e\u043c\u0435\u0440\u0446\u0456\u0439\u043d\u0438\u0439 \u0430\u0440\u0431\u0456\u0442\u0440\u0430\u0436\u043d\u0438\u0439 \u0441\u0443\u0434 \u043f\u0440\u0438 ORG \u043f\u0430\u043b\u0430\u0442\u0456 ORG the ORG \u201d ) against an open joint - stock company , PERSON , seeking an award for breach of contract . In particular , ORG claimed that PERSON , a company registered in the city of PERSON ( GPE ) , with PERCENT of its shares owned by the ORG , had failed to comply with its contractual obligations concerning the processing of raw materials .","On DATE ORG made an arbitration award ( case ORG no . PERSON ) ordering the PERSON company to pay ORG the amount of GPE ( ORG ) in compensation .","On DATE ORG lodged an application with the Ivano - Frankivsk Regional Arbitration Court ( \u201c the ORG \u201d ) seeking a ruling that ORG was a creditor in relation to the PERSON company , on the basis of DATE award .","On DATE ORG ( \u201c the Bailiffs\u2019 Service \u201d ) instituted enforcement proceedings against PERSON in order to collect the debt from it as ordered by ORG . These enforcement proceedings were joined to the other enforcement proceedings that were pending against PERSON .","On DATE ORG rejected the applicant company \u2019s request to initiate bankruptcy proceedings against PERSON .","On DATE and DATE ORG initiated the attachment of the property owned by PERSON . On DATE ORG quashed the decision on the attachment of PERSON \u2019s assets .","On DATE the property owned by PERSON was attached again . On DATE ORG decided to sell some of the property that had been attached ( the Oriana company \u2019s polymerisation workshop ) .","On DATE ORG again requested ORG to institute bankruptcy proceedings against PERSON . It also sought a ruling including it on the list of PERSON \u2019s creditors .","DATE ORG took a number of measures to obtain payment of the debts accumulated by PERSON . In particular , it sent payment orders to the debtor \u2019s bank , seized its assets , prohibited the unauthorised sale of property belonging to PERSON and attempted to sell some of the company \u2019s property in order to pay its debts . It also attached the PERSON company \u2019s bank accounts and its shares ( including the shares which PERSON owned in the PERSON company ) .","At the same time , the enforcement proceedings were suspended several times because PERSON contested the bailiffs\u2019 actions before the courts and because its numerous creditors filed applications with the court seeking an insolvency order in respect of the company .","On DATE the GPE - Frankivsk Regional Commercial Court ( formerly the GPE - Frankivsk ORG ) instituted bankruptcy proceedings against PERSON . These proceedings are still pending .","On DATE ORG requested the GPE - Frankivsk Regional Commercial Court to include it on the list of creditors of the PERSON company .","On DATE the applicant company concluded a contract with ORG concerning the transfer of the latter \u2019s right to claim the debt awarded by ORG on DATE .","On DATE the applicant company and ORG requested that ORG recognise the applicant company as the creditor in the arbitration proceedings against PERSON on the basis of the above - mentioned contract . On DATE the President of ORG dismissed their request , stating that ORG had been dissolved after having made the award of DATE .","On DATE the applicant company and ORG requested that the GPE - Frankivsk ORG ( \u201c the Court of Appeal \u201d ) declare the applicant company to be legally entitled to the debt awarded to ORG by ORG on DATE .","On DATE the applicant company and ORG requested ORG to change the creditor in the enforcement proceedings on the basis of the contract .","On DATE the applicant company and ORG requested ORG to declare that the applicant company was the PERSON company \u2019s creditor and to substitute the applicant company for ORG as a party to the enforcement proceedings on the same grounds as mentioned above .","On DATE ORG allowed the applicant company \u2019s request . It declared the applicant company to be PERSON \u2019s creditor in respect of the debt of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL resulting from the arbitration award of DATE .","On DATE the applicant company and ORG requested ORG to substitute the applicant company for ORG in the enforcement proceedings against PERSON .","On DATE ORG substituted the applicant company for the original creditor in the enforcement proceedings on the basis of the ruling of DATE .","On DATE the GPE - Frankivsk Regional Commercial Court ( \u201c the Regional Commercial Court \u201d ) ruled that ORG had to discontinue the enforcement proceedings .","On DATE ORG discontinued the enforcement proceedings and transferred the writs of enforcement to PERSON \u2019s property administrator ( \u0440\u043e\u0437\u043f\u043e\u0440\u044f\u0434\u043d\u0438\u043a \u043c\u0430\u0439\u043d\u0430 ) .","On DATE the applicant company requested ORG to amend the list of PERSON \u2019s creditors and to include it on this list on the basis of the contract of DATE and the ruling of ORG of DATE .","On DATE ORG allowed the applicant company \u2019s request and ordered that the administrator of the Oriana company \u2019s property make the relevant amendments to the list of creditors .","On DATE the applicant company requested to be informed whether ORG had substituted it for ORG in the list of creditors in the enforcement proceedings against PERSON .","The enforcement proceedings are still pending .","Under LAW of the PERSON ( ORG PERSON \u0432\u0456\u0434\u043d\u043e\u0432\u043b\u0435\u043d\u043d\u044f \u043f\u043b\u0430\u0442\u043e\u0441\u043f\u0440\u043e\u043c\u043e\u0436\u043d\u043e\u0441\u0442\u0456 \u0431\u043e\u0440\u0436\u043d\u0438\u043a\u0430 \u0430\u0431\u043e \u0432\u0438\u0437\u043d\u0430\u043d\u043d\u044f \u0439\u043e\u0433\u043e \u0431\u0430\u043d\u043a\u0440\u0443\u0442\u043e\u043c \u201d ) , a commercial court is entitled to order a moratorium on debt recovery from a company which is the subject of insolvency proceedings . The moratorium entails a prohibition on execution by ORG of judgments against the company concerned . The same section provides that a company protected by the moratorium is immune from any fines and other sanctions for non - fulfilment or improper fulfilment of its financial obligations during the moratorium .","The Law ( ORG \u041f\u0440\u043e \u0432\u0432\u0435\u0434\u0435\u043d\u043d\u044f \u043c\u043e\u0440\u0430\u0442\u043e\u0440i\u044e \u043d\u0430 \u043f\u0440\u0438\u043c\u0443\u0441\u043e\u0432\u0443 \u0440\u0435\u0430\u043bi\u0437\u0430\u0446i\u044e TIME \u201d ) aims at protecting ORG interests with regard to the sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital . A moratorium on the enforcement of judgment debts has been introduced until the mechanism for the forced sale of the property of such undertakings is improved . No time - limit has been set .","Section CARDINAL of the PERSON provides that the prohibition on the forced sale of assets includes the execution of writs by ORG on the assets belonging to such companies . The PERSON therefore stays the execution of all writs by ORG in respect of the assets of undertakings in which the ORG holds PERCENT of the share capital .","Under LAW , in the event of delay in the fulfilment of its financial obligations , a debtor must , upon a claim by the creditor , pay the amount of the debt , plus any interest payable at the officially established inflation rate during the default period .","Chapter DATE ( \u201c Compensation for damage \u201d ) of the Civil Code provides for compensation for damage and establishes the grounds for such compensation . LAW ( \u201c Protection of property \u201d ) of the LAW guarantees protection of property and allows for court action in such matters . Also , Articles CARDINAL - CARDINAL of LAW ( \u201c Reassignment of debts \u201d ) of LAW provide for the conclusion of transfer contracts and the reassignment of rights to claim debt recovery .","Under LAW ( ORG \u201c PERSON \u0432\u0438\u043a\u043e\u043d\u0430\u0432\u0447\u0435 \u043f\u0440\u043e\u0432\u0430\u0434\u0436\u0435\u043d\u043d\u044f \u201d ) , the enforcement of judgments is entrusted to ORG . Under LAW of the LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department of that service or with a local court . Section CARDINAL of the LAW entitles the creditor to institute court proceedings against a legal person entrusted with the enforcement of a judgment on account of the inadequate enforcement or non - enforcement of that judgment , and to receive compensation .","Under LAW , awards made by arbitration tribunals ( \u0442\u0440\u0435\u0442\u0435\u0439\u0441\u044c\u043a\u0456 \u0441\u0443\u0434\u0438 ) are subject to enforcement by ORG ( section CARDINAL ) of the LAW ) and are therefore treated as equivalent to judgments delivered by domestic courts .","Section CARDINAL of the Act ( ORG \u201c \u041f\u0440\u043e \u0434\u0435\u0440\u0436\u0430\u0432\u043d\u0443 \u0432\u0438\u043a\u043e\u043d\u0430\u0432\u0447\u0443 \u0441\u043b\u0443\u0436\u0431\u0443 \u201d ) provides for the liability of bailiffs for any inadequate performance of their duties , and for compensation for damage caused by a bailiff when enforcing a judgment . Under LAW of the LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .","There have been several resolutions of ORG in relation to the financial situation of the PERSON company :","( a ) no . CARDINAL of DATE ( on measures aimed at preventing PERSON \u2019s bankruptcy and on the transfer of the company \u2019s management to the PERSON enterprise ) ;","( b ) no . CARDINAL of DATE , which quashed the previous resolution on PERSON ( it also related to measures aimed at ensuring PERSON \u2019s financial and economic well - being and the restructuring of its debts ) ;","( c ) resolution no . CARDINAL of CARDINAL DATE ( on the approval of the list of enterprises exempt from land tax payment in DATE ) ;","( d ) no . CARDINAL-p of DATE ( on privatisation of the Oriana company ) ;","( e ) no . CARDINAL of DATE ( on payment of PERSON \u2019s debts for the loans it received ) ;","( f ) no . CARDINAL of DATE ( suspending privatisation of PERSON , following the sale of PERCENT of shares in the Oriana company to PERSON , a closed joint - stock company founded by PERSON and PERSON , a NORP company ) .","On DATE the Cabinet of Ministers adopted a procedure for payment of PERSON \u2019s debts from the ORG budget , amounting to ORG CARDINAL .","On a number of occasions the Government included PERSON on the list of ORG - owned companies which had strategic importance for GPE \u2019s economic well - being and security and were thus to be excluded from privatisation ( see , for instance , resolutions nos . DATE and DATE of the Cabinet of Ministers of CARDINAL DATE and DATE ) .","The Government also undertook to fund compensation for environmental damage caused by the PERSON company \u2019s operations ( resolution no . CARDINAL of ORG of DATE ) .","In its resolution of CARDINAL DATE ORG adopted an action plan providing for the elimination of environmental damage caused by the operation of PERSON , an enterprise belonging to the PERSON company . The action plan provided for the allocation of CARDINAL NORP hryvnas ( ORG ) from the ORG budget for necessary environmental work during DATE .","In decision no . CARDINAL of DATE the Prime Minister ordered the ORG to examine PERSON \u2019s financial problems and to take the necessary steps for its economic development .","Also , it ensues from the report of DATE by ORG that the ORG , and in particular ORG , managed PERSON \u2019s \u201c corporate rights \u201d ( its corporate investments ) . In particular , on DATE ORG appointed the ORG \u2019s representative to PERSON \u2019s supervisory board and ordered that the relevant structural department of ORG should issue a letter of authority for the representative enabling him to manage the ORG \u2019s shares in the company .","In its judgment ORG found that LAW DATE on the introduction of a moratorium on the forced sale of property complied with LAW . It also held that the PERSON at issue did not violate the constitutional principle of the binding nature of court judgments . Court judgments requiring the forced sale of the property of enterprises , given both prior to and after the PERSON was adopted , had not been set aside ; they remained in force , and their enforcement was merely suspended until the mechanism for the forced sale of property was improved . That meant that the PERSON extended the term for enforcement of judgments during that period ( \u201c period of legislative improvement \u201d ) .","The relevant provisions of LAW of the LAW , concerning the recognition and enforcement of awards , read as follows :","\u201c In matters governed by LAW , no court shall intervene except where so provided in the present Act . \u201d","\u201c CARDINAL . The functions referred to in sections ORG ) , CARDINAL(CARDINAL ) , CARDINAL ) and CARDINAL shall be performed by the President of ORG .","NORP The functions referred to in sections CARDINAL ) and GPE ) shall be performed by ORG of GPE , regional appeal courts or appeal courts of the cities of GPE and PERSON , depending on where the arbitration takes place . \u201d ( On DATE the Verkhovna Rada amended this provision and allowed the local district courts of first instance to perform these functions . )","\u201c CARDINAL . An arbitration award , irrespective of the country in which it was made , shall be recognised as binding and , upon a written application to the competent court , shall be enforced subject to the provisions of this section and of section CARDINAL .","The party claiming an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof , and the original arbitration agreement referred to in section CARDINAL or a duly certified copy thereof . If the award or agreement is made in a foreign language , the party shall supply a duly certified translation thereof into the NORP or LANGUAGE language . \u201d","\u201c ... CARDINAL . An award of ORG shall be carried out by the parties voluntarily within the time limit indicated by ORG . If the award does not indicate any time limit , it shall be carried out immediately . Awards not carried out within the applicable time limit shall be enforced in accordance with law and international treaties . \u201d","The relevant extracts from the Rules of ORG ( as approved by the decision of the ORG of ORG DATE , LAW no . CARDINAL(CARDINAL ) , with amendments resulting from the decision of CARDINAL DATE of the ORG of ORG ) provide as follows :","\u201c ... CARDINAL . An arbitration award may be challenged in court only by means of an application for setting aside in accordance with paragraphs CARDINAL and CARDINAL of Rule CARDINAL of the present Rules .","An arbitration award may be set aside in accordance with section CARDINAL ) of LAW by the Shevchenkivsky ORG of GPE only if :","( CARDINAL ) the party making the application for setting aside furnishes proof that :","a party to the arbitration agreement referred to in Rule CARDINAL.CARDINAL above was subject to an incapacity ; or the said agreement is not valid under the law to which the parties have subjected it or , in the absence of any indication thereof , under the law of GPE ; or","a party was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present its case ; or","the award was made regarding a dispute not contemplated by or not falling within the terms of the submission to arbitration , or , where it contains decisions on matters beyond the scope of the submission to arbitration , provided that the decisions on the matters submitted to arbitration can be separated from those not so submitted , only that part of the award which contains decisions on matters not submitted to arbitration may be set aside ; or","the composition of ORG or the arbitration proceedings were not in accordance with the agreement of the parties , unless such agreement was in conflict with a provision of LAW from which the parties can not derogate , or , in the absence of such agreement , were not in accordance with this LAW ; or","( CARDINAL ) the court finds that :","the subject matter of the dispute is not capable of settlement by arbitration under the law of GPE ; or","the award is in conflict with the public policy of GPE .","An application for setting aside may not be made after DATE have elapsed from the date on which the party making that application had received the award or , if the request had been made under Rules CARDINAL - CARDINAL.CARDINAL above , from the date on which that request had been disposed of by ORG . \u201d","\u201c CARDINAL . An award by ORG shall be final . It shall be executed by the parties voluntarily within the time - limit indicated by ORG .","If the award does not indicate any time - limit , it shall be executed immediately .","An arbitration award shall be recognised as binding and , in the event of refusal to execute it voluntarily , it shall be enforced depending on the respondent \u2019s location .","If the debtor is in GPE , the award by ORG at the UCCI shall be enforced upon an application in writing to the competent court at the place of the debtor \u2019s location in accordance with LAW and the rules of civil procedure in GPE .","If the debtor is abroad , the claimant \u2019s application in writing shall be communicated to the competent court of the country where the debtor is located and in accordance with LAW of FAC on ORG ( DATE ) or an inter - State agreement , the relevant court of the Contracting State shall recognise and enforce awards of ORG in accordance with the rules of procedure of the territory where the award is being relied upon .","To obtain the recognition and enforcement of the award , the party applying for recognition and enforcement shall , at the time of the application , supply to the competent ORG court the duly authenticated original award or a duly certified copy thereof , and also the original arbitration agreement referred to in Rule CARDINAL.CARDINAL above or a duly certified copy thereof . If the said application , award or agreement is not made in an official language of the country in which the award is being relied upon , the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language in CARDINAL copies . The translation shall be certified by an official or sworn translator or by a diplomatic or consular agency . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60498","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2002,"docname":"CASE OF SADAK AND OTHERS v. TURKEY (No. 2)","importance":1,"conclusion":"Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of the opinion of the people;Stand for election);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Freedom from attachment)","judges":"Nicolas Bratza","text":["The applicants , who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively , are NORP nationals . They were members of ORG and the DEP ( Democracy Party PERSON ) , a political party which was dissolved by ORG on DATE .","On DATE the DEP was founded and the appropriate declaration submitted to ORG .","On DATE ORG at ORG ( \u201c ORG Counsel \u201d ) applied to ORG for the DEP to be dissolved . In his application he accused the DEP of having infringed the principles of the LAW and the law on political parties . He considered that declarations made by various members of the DEP 's central committee and its former chairman during CARDINAL meetings held abroad ( at GPE in GPE and GPE in GPE ) were likely to undermine the integrity of the ORG and national unity .","On DATE ORG decided of its own motion to obtain the oral submissions of certain interested parties . Thus , on DATE it took evidence from the applicant Mr PERSON , in his capacity as the vice - chairman of the DEP , and from PERSON , in his capacity as the party 's legal representative .","On DATE ORG lifted the parliamentary immunity of some of the DEP 's MPs , including that of the applicants , in response to a series of applications made by the public prosecutor at ORG .","On DATE Mr Dicle and Mr Do\u011fan were arrested as they were leaving parliament , and taken into police custody . On DATE the same thing happened to Mr Sak\u0131k , PERSON and PERSON . The arrest of PERSON PERSON and Mr PERSON , who had remained inside the parliament building , was prevented by the Speaker of ORG on the ground that they were still members of parliament .","On DATE ORG ordered the dissolution of the DEP on the ground that it had undermined the territorial integrity of the ORG and national unity .","ORG also declared that the parliamentary seats of all the applicants were forfeited as a secondary measure attending the decision to dissolve the DEP . The measure was not applied to CARDINAL MPs who had recently left the party .","On DATE , fearful of the consequences of the criminal proceedings brought against them , Mr PERSON , Mr PERSON , Mr GPE , Mr Aydar , Mr PERSON and PERSON went abroad ( to GPE ) .","On DATE Mr PERSON and PERSON went to the public prosecutor 's office with their lawyer and were placed in custody .","On DATE ORG filed submissions in which he accused the applicants of separatism and undermining the integrity of the ORG , both of these being capital offences under LAW .","ORG gave judgment on DATE . Applying CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) , it sentenced Mr PERSON to DATE imprisonment for separatist propaganda . PERSON , PERSON , Mr PERSON , Mr PERSON and PERSON PERSON were each sentenced to DATE imprisonment for membership of an armed gang pursuant to LAW and Mr PERSON was sentenced to DATE imprisonment for assisting and supporting an armed gang , an offence under LAW .","On an appeal on points of law by the applicants and ORG on DATE , ORG quashed PERSON and PERSON convictions and ordered their release on the ground that they had contravened only section CARDINAL of the Prevention of Terrorism Act . The ORG upheld the other applicants ' convictions .","NORP The relevant provisions of the LAW provide as follows :","\u201c The fundamental aims and duties of the ORG shall be to safeguard the independence and integrity of the NORP nation , its territorial unity , the LOC and democracy , to ensure the well - being , peace and happiness of both individuals and society , and to endeavour to remove any political , economic or social barrier restricting the fundamental rights and freedoms of the individual in a manner incompatible with the principles of equality before the law and justice and to secure the conditions required for the material and spiritual development of the individual . \u201d","\u201c Everyone shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds .","No privileges shall be granted to any individual , family , group or class .","Organs of ORG and administrative authorities shall be required to comply in everything they do with the principle of equality before the law . \u201d","\u201c Political parties shall not engage in activities other than those referred to in their constitutions and programmes , nor shall they disregard the restrictions laid down by LAW , on pain of permanent dissolution . ...","The decisions and internal running of political parties shall not be contrary to democratic principles . ...","Immediately a political party is formed , ORG shall verify as a matter of priority that its constitution and programme and the legal position of its founder members are consistent with the LAW and the laws of the land . He shall also monitor its activities .","Political parties may be dissolved by ORG , on application by ORG .","Founder members and leaders , at whatever level , of political parties which have been permanently dissolved may not become founder members , leaders or auditors of any new political party , nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved . \u201d","\u201c ... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members , leaders or auditors of another political party for DATE from the date on which the reasoned decision to dissolve the party is published in ORG ... \u201d","\u201c ... The term of office of a member of parliament whose words and deeds have , according to ORG judgment , led to the dissolution of his party , and that of other members who belonged to the dissolved party on DATE when the action for dissolution was brought , shall end on the date when the Presidency of ORG is notified of the dissolution order . \u201d","\u201c ... The term of office of a member of parliament whose words and deeds have , according to ORG judgment , led to the dissolution of his party , shall end on DATE when that judgment is published in ORG . The Presidency of ORG shall enforce that part of the judgment and inform ORG accordingly . \u201d","The relevant provisions of LAW provide :","\u201c It shall be an offence punishable by death to commit any act aimed at subjecting the ORG or part of the ORG to domination by a foreign ORG , diminishing the ORG 's independence , breaking its unity or removing part of the national territory from the ORG 's control . \u201d","\u201c Any person who , with the intention of committing the offences defined in LAW ... , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than DATE imprisonment .","The other members of the gang or organisation shall be sentenced to not CARDINAL and not DATE imprisonment . \u201d","\u201c Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not DATE imprisonment ... \u201d","Section CARDINAL(CARDINAL ) of LAW ( Law no . ORG ) , as amended by PERSON no . CARDINAL of DATE , which came into force on CARDINAL DATE , provides :","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not DATE imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine . \u201d"],"violated_articles":["P1"],"violated_paragraphs":["P1-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-66711","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2004,"docname":"W.P. AND OTHERS v. POLAND","importance":1,"conclusion":"Inadmissible","judges":"Georg Ress;Mark Villiger","text":["The applicants , ORG , GPE , GPE , GPE , GPE and GPE , are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE and DATE respectively . Their occupations are respectively as follows : a police officer , a farmer , a police officer , a tailor , a teacher and a pensioner . ORG are married to each other , as are GPE and GPE The respondent Government were represented by PERSON , Acting Government Agent , and subsequently by PERSON J. Wo\u0142\u0105siewicz , Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG , GPE and PERSON informed ORG ( ORG ) that they had decided to form an ordinary association ( stowarzyszenie zwyk\u0142e ) called ORG ( ORG ) . They submitted a copy of the memorandum of association , which listed the following objectives :","\u201c CARDINAL . Allowing association of former and present functionaries of ORG and members of their families who are victims of different forms of repression , persecution , harassment and discrimination .","Identification of a phenomenon of persecution , repression , harassment and discrimination in ORG .","Taking action aimed at improving the conditions of service and social conditions of the functionaries of ORG .","Responding to all apparent instances of lawbreaking , abusing authority , harassing , repressing , persecuting and discriminating .","Taking action aimed at redressing damage caused to victims .","Taking action aimed at obtaining the prosecution of persons responsible for persecution , repression , harassment and discrimination .","Co - operating with the public authorities , organs of state administration , national and patriotic organisations , NORP unions and associations .","Spreading national and patriotic values .","Expressing opinions on public matters . \u201d","On DATE the ORG ( PERSON ) applied to ORG ( S\u0105d Wojew\u00f3dzki ) for a decision prohibiting the formation of the association . He submitted that its name was misleading as it suggested that persecution was taking place in ORG . GPE was governed by the rule of law and since DATE numerous regulations had been introduced to protect the rights of police officers . Finally , the Governor agreed with the opinion of ORG Commissioner ( ORG ) that the association \u2019s name defamed ORG .","On DATE ORG allowed the application and prohibited the formation of the association . It considered that the applicants had not complied with LAW , which required them to agree with the Minister of ORG the association \u2019s objectives concerning the protection of public order .","The applicants appealed to ORG ( S\u0105d Apelacyjny ) but on DATE it dismissed their appeal . The appellate court agreed with ORG conclusion that the applicants had breached section CARDINAL of LAW since they had not agreed with the Minister of ORG the association \u2019s objectives concerning the protection of public order . In addition , the association \u2019s name suggested the existence of persecution in ORG and therefore defamed a public institution .","On DATE ORG , GPE , GPE , GPE and GPE informed ORG that they had decided to form an ordinary association called ORG ( ORG i Nauczycieli ) .","On DATE the ORG Governor applied to ORG for a decision prohibiting the formation of the association .","On DATE the applicants requested that the proceedings be conducted by a judge who had in the past been persecuted by the authorities .","On DATE ORG held a hearing . The applicants failed to attend it despite the fact that they had been served with summonses . The court asked the applicants to clarify whether their request of DATE had been filed in order to challenge the presiding judge for bias .","On DATE the applicants repeated their request of DATE .","On DATE ORG dismissed the requests lodged on CARDINAL and DATE .","The court scheduled a hearing for DATE . The applicants submitted that as a result of \u201c NORP and NORP reforms \u201d they could not afford to attend the hearing .","On DATE the applicants asked ORG \u201c to serve them with a reasoned decision taken by the court on DATE \u201d .","On DATE ORG gave a decision prohibiting the formation of the association .","On DATE ORG dismissed the applicants\u2019 request of DATE . It pointed out that they had requested a copy of a non - existent decision , as the court had prohibited the formation of the association by a decision taken on DATE . Moreover , the applicants had failed to lodge a request for a reasoned decision within DATE after that date , i.e. within the time allowed by ORG .","On DATE the applicants received a copy of ORG decision of DATE prohibiting the formation of the association .","On DATE the applicants challenged the decision of CARDINAL DATE and on CARDINAL DATE they appealed against the decision of DATE . However , their application of DATE was dismissed on DATE .","On DATE ORG , GPE , GPE , GPE , GPE and GPE informed ORG that they had decided to form an ordinary association called ORG and NORP ( ORG przez PERSON i PERSON ) . They submitted a copy of the memorandum of association , which listed the following objectives :","\u201c CARDINAL . Allowing association of NORP victims of ORG and NORP .","Identification of a phenomenon of persecution , repression , harassment and discrimination in GPE .","Identification of a phenomenon of violation of human and civic rights in GPE .","Identification of a phenomenon of the holocaust of the NORP nation and the scope thereof .","Responding to all apparent instances of lawbreaking , abusing authority , harassing , repressing , persecuting and discriminating .","Taking action aimed at equality between ethnic NORP and citizens of NORP origin by striving to abolish the privileges of ethnic NORP and by striving to end the persecution of ethnic NORP .","Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for the holocaust of the NORP nation .","Taking action aimed at prosecuting and making financially liable tormentors and criminals ( including tormentors and criminals sitting behind official desks and tormentors and criminals wearing the gown of a judge or prosecutor ) responsible for persecution , repression , harassment and discrimination .","Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for violating human and civic rights .","Revealing and fighting threats directed against the most important interests of the NORP nation .","Taking action aimed at redressing damage caused to victims .","Taking action aimed at improving the living conditions of NORP victims of ORG and NORP .","Taking actions aimed at determined opposition to the psychological and physical murder of the NORP nation .","Spreading national and patriotic values .","Claiming veteran benefits for NORP victims of ORG and NORP .","Co - operating with institutions , national and patriotic organisations , NORP , unions and associations conducting real ( not feigned ) activities for the good of the NORP nation .","Expressing opinions on public matters . \u201d","On DATE the ORG Governor applied to ORG for a decision prohibiting the formation of the association .","On DATE ORG allowed the application and prohibited the formation of the association . The court considered that the memorandum of association did not comply with the law . The applicants intended to form an ordinary association which did not have legal personality . Only point CARDINAL of the memorandum setting out the association \u2019s objectives could be approved . The remaining objectives were either unlawful or unrealistic and could not be pursued by an ordinary association . In particular , points CARDINAL , CARDINAL , and CARDINAL referred to objectives already realised by other institutions . Point CARDINAL introduced a notion of inequality between citizens which did not exist . Moreover , point CARDINAL amounted to defamation of judges and prosecutors .","The applicants appealed to ORG but on DATE it dismissed their appeal .","LAW , which was adopted by ORG on DATE and entered into force on DATE , states :","\u201c GPE shall ensure freedom for the creation and functioning of trade unions , socio - occupational farmers\u2019 organisations , societies , ORG movements , other voluntary associations and foundations . \u201d","Article CARDINAL reads :","\u201c Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism , fascism or communism , or whose programmes or activities foster racial or national hatred , recourse to violence for the purposes of obtaining power or to influence ORG policy , or which provide for their structure or membership to be secret , shall be forbidden . \u201d","Section CARDINAL of LAW , in so far as relevant , reads :","\u201c CARDINAL . NORP citizens shall exercise the right of association in accordance with the LAW ... and the legal order as specified by statute .","The [ exercise of the ] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others .","Associations shall have the right to express their opinion on public matters . \u201d","Section CARDINAL , in so far as relevant , provides :","\u201c CARDINAL . An association is a voluntary , self - governing , durable union pursuing non - profit - making aims .","An association shall freely determine its objectives , its programmes of activity and organisational structures , and shall adopt internal resolutions concerning its activity . \u201d","Section CARDINAL provides :","\u201c Persons intending to form an association whose activity will be directly related to defence or ORG security or the protection of public order shall agree the scope of such activity with the Minister of Defence or the Minister of ORG , respectively ( ... ) . \u201d","LAW concerns ordinary associations . It provides that they do not have legal personality and are exempt from registration . Persons intending to form an ordinary association must adopt a memorandum of association and submit it to a supervisory authority , which can request a court to prohibit the formation of the association . The court can prohibit the formation of the association if its memorandum is not compatible with the law or if its founders do not fulfil the legal requirements .","Article CARDINAL provides :","\u201c \u00a7 CARDINAL An appeal shall be lodged with the court which gave the impugned judgment within DATE after the date on which a party was served with the reasoned judgment .","\u00a7 CARDINAL If a party has not requested the reasoned judgment within DATE after the delivery of its operative part , the time allowed for lodging an appeal shall run from the date on which the time allowed for requesting the reasoned judgment expired . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103776","languageisocode":"ENG","respondent":"ALB","branch":"CHAMBER","date":2011,"docname":"CASE OF ELTARI v. ALBANIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 13+6-1 - Right to an effective remedy (Article 6 - Right to a fair trial;Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved","judges":"Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG on ORG ( \u201c the Commission \u201d ) recognised the applicant \u2019s and other heirs\u2019 inherited title to a number of plots of land , amongst which a plot of land measuring QUANTITY m. As the restitution of that plot of land was impossible since it was occupied , the Commission decided that the applicant and the other heirs would be compensated in CARDINAL of the ways provided for by law .","On DATE , relying on the right of first refusal , the applicant concluded a sale contract with the PERSON regional office of ORG for the purchase of a pharmacy and its corresponding plot of QUANTITY m , which was allegedly part of the plot of land measuring QUANTITY m.","NORP The chemist of the pharmacy lodged a complaint with the PERSON prosecutor office alleging that the sale contract was unlawful .","On DATE the ORG prosecutor initiated civil proceedings with ORG ( \u201c the ORG \u201d ) seeking the nullity of the sale contract and the nullity of the GPE decision . The chemist intervened as a third party .","On DATE ORG declared null and void , in part , the ORG \u2019s decision in so far as it had restored to the applicant the plot of QUANTITY m which corresponded to the site of the pharmacy . Relying on an expert \u2019s report , it found that the plot of QUANTITY m had been expropriated in DATE , as a result of which LAW was inapplicable ratione temporis . Thus , the applicant could not claim a property right over that plot of land pursuant to LAW in so far as it had not been expropriated by the communist regime . Furthermore , the court decided to annul the contract for the purchase of the pharmacy since any such contract was based on the premise that only the owner of the site had the right of first refusal over the buildings constructed on it . However , the operative part of the judgment stated that the applicant would be compensated only in respect of QUANTITY m , the remainder of the property rights over QUANTITY . m having been declared null and void .","On DATE ORG upheld ORG decision . It found that the prosecutor had locus standi to lodge a civil action in accordance with ORG . It also held that the civil action was not time - barred as it had been lodged pursuant to LAW . It further dismissed the applicant \u2019s complaint about the assessment of evidence and the credibility of the expert \u2019s report .","On DATE ORG dismissed the applicant \u2019s appeal since it did not contain any lawful ground of appeal in accordance with LAW .","On DATE the applicant filed a supervisory review request ( rekurs n\u00eb interes t\u00eb ligjit ) with ORG .","On DATE ORG dismissed the applicant \u2019s supervisory review request in the light of impending review proceedings that she had instituted ( see \u201c The review proceedings \u201d below ) .","On an unspecified date the applicant filed a constitutional appeal .","On DATE ORG , sitting in plenary session , dismissed the applicant \u2019s appeal finding that there had been no breach of the right to fair hearing . It found that the prosecutor \u2019s civil action had been supported by the intervention of the chemist who had full interests in the case and did not disclose any breach of the applicant \u2019s right to a fair trial . It further held that there was no other compelling evidence that the fairness of the proceedings had been tainted .","On an unspecified date the applicant requested revision of the decision of DATE .","On DATE ORG dismissed the revision request .","On DATE , following the applicant \u2019s appeal , ORG upheld the decision of DATE .","It would appear that the applicant \u2019s appeal to ORG was dismissed on an unspecified date .","On DATE the applicant lodged a request with ORG for the interpretation of its decision of DATE , arguing that there existed a discrepancy between the reasoning and the operative part of the decision .","On DATE ORG entertained her request and rectified the operative part of the decision of DATE . It confirmed that the applicant \u2019s property rights could not be recognised in respect of QUANTITY m and that the applicant should be compensated as regards the plot of land measuring CARDINAL sq . m in CARDINAL of the ways provided for by law .","NORP The decision became final and binding on DATE , no appeal having been filed against it .","To date , the authorities have still not complied with the ORG decision of DATE , as rectified and interpreted by the decision of CARDINAL DATE .","The relevant provisions of LAW read :","Article CARDINAL \u00a7 CARDINAL","\u201c In the protection of his constitutional and legal rights , freedoms and interests , or in the case of a criminal charge brought against him , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . \u201d","Article CARDINAL \u00a7 CARDINAL","\u201c State bodies shall comply with judicial decisions . \u201d","Article CARDINAL","\u201c The Constitutional Court shall decide : ... ( f ) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . \u201d","The relevant domestic law as regards property restitution and compensation in GPE has been described in the judgments of ORG and Others v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE , ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE , ORG and Others v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE .","New and substantial legislative measures have been enacted amending the principal DATE Property Act since the adoption of those judgments . The principal amendments are as follows :","Section CARDINAL extended until DATE the time - limit for the completion of the examination of applications for the recognition , restitution and compensation of immovable properties , with the exception of payment of the amount of compensation , the time - limit for which was fixed for DATE .","Section CARDINAL established the Agency for ORG ( \u201c the central Agency \u201d ) which replaced ORG on the ORG and Compensation of Properties ( \u201c the ORG \u201d ) . The central Agency , which was headed by a Director , had its seat in GPE and was made up of CARDINAL regional Agency offices .","According to section DATE , the regional Agency office was responsible for the initial examination of applications for the recognition of property rights , in response to which it decided on the restitution of property and\/or compensation in lieu thereof . Section CARDINAL set the time - limit for the submission of applications for the recognition of property rights for CARDINAL DATE .","Section CARDINAL stipulated that an appeal against a decision of the regional Agency office could be lodged with the central ORG . The decision of the central ORG could be appealed against to ORG within DATE of its notification .","Section CARDINAL extended until DATE the time - limit for the completion of the examination of applications for the recognition , restitution and compensation of immovable properties , with the exception of payment of compensation .","Section CARDINAL provided for the establishment of the In - kind ORG ( NORP ) alongside ORG ( \u201c ORG \u201d ) . Within DATE from the LAW \u2019s entry into force , the ORG had to approve the list of properties to be allocated to the IkCF .","Section CARDINAL provided that the central ORG was responsible for examining claims for in - kind and financial compensation . The central ORG was also responsible for examining appeals against the decisions of regional Agency offices .","Section CARDINAL reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights . The claimant or ORG had the right to appeal against that decision within DATE to the central ORG , which was the highest administrative body . Such an administrative decision was amenable to judicial review in accordance with the provisions of LAW .","Section CARDINAL extended until DATE the time - limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices . It also provided for the possibility for a claimant to be given a new time - limit by way of a court decision .","According to section CARDINAL , the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on DATE , with the exception of the payment of the amount of compensation , the deadline for which was fixed for DATE .","Section CARDINAL extended until DATE the deadline for the allocation of properties to the IkCF .","Section CARDINAL provided that in addition to the budgetary appropriations , the allocations obtained by virtue of this law and other donors , the ORG would also be made up of proceeds obtained through auctions of ORG which had not been the subject of a Commission decision .","Section CARDINAL abolished the regional Agency offices . It stated that the archives of those offices would be transferred to the central ORG . According to section CARDINAL , the central ORG would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices . The central ORG continued to examine appeals lodged with it against former regional Agency offices\u2019 decisions .","According to section CARDINAL , the claimant or ORG had the right to appeal against the central ORG \u2019s decision within DATE of its notification to ORG .","Section CARDINAL set the deadline for the completion of the examination of applications for the recognition and restitution of properties for ORG CARDINAL DATE .","The DATE LAW chiefly introduced the possibility of requesting a revision of decisions of former Commissions \/ regional Agency offices .","Section CARDINAL extended until DATE the deadline for the allocation of properties to the ORG .","Pursuant to LAW which established ORG , the Government adopted the above - mentioned decisions , DATE , in respect of the award of financial compensation to former owners .","In DATE financial compensation was awarded in respect of compensation claims arising out of ORG decisions . In DATE financial compensation was awarded in respect of compensation claims arising out of the decisions of the GPE and ORG . In DATE the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued . In DATE and DATE all former owners , who were entitled to compensation , following a ORG regional ORG \u2019s decision , were eligible to apply for financial compensation .","According to the CMDs adopted DATE , a claimant was required to lodge a standard application for financial compensation with the central Agency in GPE , furnishing , inter alia , the GPE \/ regional ORG \u2019s decision that recognised his right to compensation . Only those former owners who had not previously received compensation were entitled to financial compensation from DATE to DATE . The DATE ORG provided that a former owner was entitled to financial compensation on the condition that he had not benefited from : a ) previous compensation ; b ) partial restoration \/ restitution of the property ; c ) the right to first refusal ; d ) the implementation of the LAW on the Distribution of Land ( Law no . DATE of DATE ) .","Applications would be examined in chronological order on the basis of the ORG \u2019s \/ regional ORG \u2019s decision date and number . The amount of financial compensation , which was to be calculated on the basis of property valuation maps , was limited to a maximum of CARDINAL sq . m.","The lodging of an application entailed the payment of a processing fee . Former owners who had been unsuccessful in their application for financial compensation in DATE could re - submit their application in the following year(s ) once they had paid the processing fee .","None of those decisions provided for the award of compensation to holders claims arising out of a final , enforceable court decision .","By virtue of the above - mentioned decisions , CARDINAL of which were adopted in DATE and CARDINAL in DATE , the ORG approved and issued property valuation maps as listed above . The maps included the reference price per square CARDINAL throughout the country .","The first decision fixed the price of land for the regions of GPE , PERSON , PERSON and ORG ; the second decision fixed the price of land for the regions of ORG , PERSON , PERSON and PERSON ; the third decision fixed the price of land for the regions of ORG , PERSON , ORG , PERSON and GPE . The fourth decision contained an updated price list for certain cities .","The DATE LAW provided for the establishment of an In - kind ORG ( \u201c NORP \u201d ) . The Government would adopt the procedures for the allocation of properties covered by the NORP .","By decision of CARDINAL DATE the Government laid down the criteria and the procedures for the determination of ORG properties covered by the ORG ( ORG no . CARDINAL of CARDINAL DATE ) . LAW lists the types of properties , for example : a ) public immovable property which is located in tourist areas ; b ) properties of ORG which are not used by the armed forces and have been approved by the President of the Republic ; c ) available agricultural land belonging to ORG ; d ) forests , pastures and meadows ; and e ) property of ORG institutions which falls outside their intended activity .","The ORG and its regional offices are responsible for checking the legal status of each property as submitted by the respective ORG institution . The ORG submits the final list of immovable properties for inclusion in the NORP to the Minister of Justice . The Government are to approve the list and publish it in ORG .","To date , it would appear that no such list has yet been approved .","Articles CARDINAL - CARDINAL govern the adjudication of administrative disputes , following exhaustion of all administrative remedies . Article CARDINAL provides that a party may bring an action before a court with a view to revoking or amending an administrative decision . Under Article CARDINAL a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly , individually or collectively .","With regard to the appeal procedure before ORG , the Code of Civil Procedure , in so far as relevant , reads as follows :","Article CARDINAL","\u201c Decisions of ORG and ORG may be appealed against to ORG on the following grounds : ( a ) the law has not been complied with or has been applied erroneously ; ( b ) there have been serious breaches of procedural rules ( pursuant to LAW ) ; ( c ) there have been procedural violations that have affected the adoption of the decision . ... \u201d","Article CARDINAL","\u201c An appeal [ to ORG ] shall be declared inadmissible if it contains grounds other than those provided for under the law . The inadmissibility of appeals shall be decided upon in deliberations in camera . \u201d"],"violated_articles":["13","6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115353","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2012,"docname":"KULEVSKIY v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Khanlar Hajiyev;Linos-Alexandre Sicilianos","text":["NORP The applicant , PERSON , is a NORP national , who was born in DATE and lived in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE , GPE .","ORG ( \u201c the Government \u201d ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant left GPE for GPE .","NORP In DATE ORG of GPE started an investigation of the activities of a criminal gang which operated in DATE in the GPE region . As a result of the investigation fortysix members of the gang stood trial before ORG . Proceedings against the remaining alleged members of the gang , including the applicant , whose whereabouts could not be established , were separated .","On DATE ORG charged the applicant in absentia , issued an order for him to be remanded in custody and declared him a wanted person . The charges against the applicant , as amended on DATE , included , in particular , attacks on businesses and citizens ( under LAW ) , acquisition , transfer , storage , transportation and carrying of firearms ( under LAW ) , murder of CARDINAL person in DATE , murder with particular cruelty of CARDINAL persons in DATE and CARDINAL more persons in DATE ( under LAW punishable by DATE to twenty - five years\u2019 imprisonment , life imprisonment or death ) .","On DATE the applicant was arrested in the NORP region in GPE .","On DATE a deputy Prosecutor General of GPE , relying on ORG CARDINAL and CARDINAL of ORG ( \u201c the DATE Minsk Convention \u201d ) , requested a deputy Prosecutor General of GPE to extradite the applicant to GPE so that he could be prosecuted for the offences with which he was charged . ORG guaranteed that the applicant would only be prosecuted for offences in connection with which he would be extradited , that after his trial or after serving his sentence , if convicted , he would be free to leave GPE and that he would not be transferred to a third state without GPE consent . It was stated further that the request was not aimed at persecuting the applicant on the grounds of his race , religion , ethnic origin or political convictions , and that the statute of limitation for his prosecution had not expired .","On DATE ORG , NORP region , convicted the applicant of forgery of a NORP passport , using which he had lived in GPE under a false name , and sentenced him to DATE imprisonment . A decision on the applicant \u2019s extradition was postponed . His conviction became final on DATE .","On CARDINAL DATE the deputy Prosecutor General of GPE ( \u201c the RF \u201d ) , relying in particular on LAW and CARDINAL of the DATE Minsk Convention and Articles DATE of LAW , granted the request for the applicant \u2019s extradition . The decision noted that the offences with which the applicant had been charged in GPE constituted crimes under the NORP criminal law punishable with DATE imprisonment , and that the statute of limitation for their prosecution had not expired . The applicant was a NORP national and did not have NORP citizenship .","On DATE the ORG deputy Prosecutor General communicated his decision to the GPE Deputy Prosecutor General , inviting the latter to inform him , under LAW , of the outcome of the criminal proceedings against the applicant . The extradition was to take place once the applicant \u2019s sentence for passport forgery had been served and the extradition decision had entered into force .","On DATE the NORP Deputy Prosecutor General , in reply to the ORG Deputy Prosecutor General \u2019s inquiry , supplemented his request for the applicant \u2019s extradition with additional assurances , notably that in the event of the applicant \u2019s extradition to GPE the requirements of LAW would be observed , the applicant would not be subjected to torture , inhumane or degrading treatment or punishment . If convicted , he would not be sentenced to death . He would be given a fair trial and , if necessary , provided with appropriate medical care .","NORP The applicant appealed against the extradition decision to ORG . A judge to whom the case had been allocated enquired with ORG about the possibility of obtaining additional assurances from GPE , to the effect that the relevant court there would not impose the death penalty on the applicant , or that the death penalty would not be carried out . Following that inquiry ORG obtained a Note of DATE , no . DATE , of ORG in GPE which states as follows :","\u201c The Embassy of the Republic of Belarus in GPE presents its compliments to ORG of GPE and , in reply to Note no . CARDINAL\/CARDINAL \u0434\u0441\u043d\u0433 of DATE , has the honour to present the following information .","ORG in GPE confirms that compliance by all NORP law - enforcement organs , including courts and organs of execution of sentences , with the undertakings given by ORG on behalf of GPE of the nonapplication of the death penalty to PERSON , is both lawful and compulsory .","By virtue of the law of GPE , in particular LAW , only GPE Office has the power to give a written undertaking on behalf of GPE of the nonapplication of the death penalty to a person whose extradition is being sought . In this connection , the written undertaking by GPE Office on behalf of GPE of the non - application of the death penalty to PERSON has in essence the force of an international legal obligation of GPE which is subject to rigorous observance .","Taking into account the aforementioned circumstances , the written undertaking by GPE Prosecutor General \u2019s Office specifically indicates that in the event of delivery of a \u201c guilty \u201d verdict a court with jurisdiction to examine the case will not sentence PERSON to death ( \u00ab ... \u0432 \u0441\u043b\u0443\u0447\u0430\u0435 \u0432\u044b\u043d\u0435\u0441\u0435\u043d\u0438\u044f \u043e\u0431\u0432\u0438\u043d\u0438\u0442\u0435\u043b\u044c\u043d\u043e\u0433\u043e \u043f\u0440\u0438\u0433\u043e\u0432\u043e\u0440\u0430 \u0432 \u043d\u0435\u043c \u043a\u043e\u043c\u043f\u0435\u0442\u0435\u043d\u0442\u043d\u044b\u043c \u0441\u0443\u0434\u043e\u043c PERSON \u0431\u0443\u0434\u0435\u0442 \u043d\u0430\u0437\u043d\u0430\u0447\u0435\u043d\u043e \u043d\u0430\u043a\u0430\u0437\u0430\u043d\u0438\u0435 GPE \u0432\u0438\u0434\u0435 \u0441\u043c\u0435\u0440\u0442\u043d\u043e\u0439 \u043a\u0430\u0437\u043d\u0438 ... PERSON ) . That court will be bound to examine that undertaking at the [ PERSON \u2019s ] trial and regard it as an obligation of GPE not to apply the death penalty to him .","We should also inform you that ORG of GPE and its diplomatic representation offices are not vested by NORP law with powers to give additional legally binding guarantees of non - application of the death penalty .","ORG in GPE avails itself of this opportunity to renew to ORG of GPE the assurances of its highest consideration . \u201d","From DATE , after serving his sentence for the passport forgery , the applicant was in custody pending extradition . He was released on DATE when the maximum time - limit for detention had been reached .","The applicant \u2019s request for refugee status was refused by a final decision of ORG on DATE ; on an appeal by the applicant that decision was upheld by ORG on DATE and ORG on DATE .","On DATE ORG , sitting in a panel of CARDINAL judges , held an open hearing . Having heard the applicant , his counsel and the prosecutor and having examined other evidence , ORG upheld the extradition decision , which it found to be in compliance with LAW of DATE , the GPE CARDINAL Convention and LAW . ORG examined the assurances given by ORG General\u2019","NORP In particular , as regards the applicant \u2019s argument that CARDINAL leaders of the gang convicted of the murders , which offences formed part of the charges against him , had been sentenced to death and executed , ORG established , on the basis of official information from the NORP authorities , that those individuals had never been extradited ; they had been arrested in GPE in DATE and detained there until their conviction and execution .","The applicant \u2019s allegations that he had been persecuted in GPE for his political activity , detained unlawfully and illtreated were found by ORG to be incoherent , unsubstantiated and lacking essential details . No evidence of his detention or illtreatment had been provided . Political motives for leaving his home country had for the first time been raised at the last hearing before ORG , without any details being provided . He had stated to the court previously that he had left GPE to find a job . He admitted at the hearing that he was not a member of any political , religious , non - governmental or military organisation , and had never distributed materials or appeals in the context of agitation . He had made the same statements when detained with a view to extradition . His wife , daughter and sister were NORP nationals , resided in GPE and had never been persecuted . Upon arrival in GPE he had not applied for refugee status or for NORP citizenship , but had lived under a forged NORP passport .","ORG examined human rights organisations\u2019 reports submitted by the defence , which indicated that the human rights situation in GPE was unstable . Relying on the Convention case - law , ORG noted that the reference to a general problem concerning human rights observance in a particular country could not alone serve as a basis for refusal of extradition . The charges against the applicant did not relate to political activity . The applicant \u2019s allegation that any detainee would be subjected to ill - treatment in GPE was too general . He was accused of banditry , illegal weapons trafficking and the murder of CARDINAL people with aggravating circumstances . There was no evidence that the applicant had engaged in any political activity . His allegations of earlier instances of illtreatment in GPE were vague , totally unsubstantiated and unconvincing . ORG concluded that there were no grounds to believe that the applicant would be subjected to treatment dangerous to his health or life , or that his trial would be unfair . The applicant had no health issues requiring him to stay in GPE on humanitarian grounds .","On DATE ORG of GPE dismissed the applicant \u2019s appeal against ORG judgment , having endorsed ORG findings .","On DATE the ORG , acting upon the applicant \u2019s request , decided to apply Rule CARDINAL of ORG , indicating to the Government of GPE that the applicant should not be extradited to GPE until further notice by the ORG .","The CIS Convention on Legal Assistance and Legal Relations in Civil , Family and Criminal Matters ( signed in GPE on DATE and amended on DATE , \u201c the DATE Minsk Convention \u201d ) , to which both GPE and GPE are parties , provides as follows :","\u201c CARDINAL . The Contracting Parties shall ... on each other \u2019s requests extradite persons , who find themselves in their territory , for criminal prosecution or serving a sentence .","Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . \u201d","\u201c CARDINAL . Extradition shall not be carried out if :","( a ) NORP the person whose extradition is being requested is a citizen of the requested ORG ;","( b ) At the moment of receipt of the request criminal prosecution can not be initiated according to the legislation of the requested ORG ... as a result of the expiry of the statute of limitations or on another legal ground ;","( c ) a judgment or a decision on termination of proceedings have been delivered and entered into force on the territory of the requested ORG in respect of the person whose extradition is being requested for the same crime ;","( d ) in accordance with the legislation of the requesting and requested Contracting Parties the crime is being prosecuted by way of private prosecution ( on a victim \u2019s request ) ... \u201d","\u201c CARDINAL . A request for extradition shall include the following information :","( a ) NORP the title of the requesting and requested authorities ;","( b ) the description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;","( c ) the [ name ] of the person to be extradited , DATE of his birth , citizenship , place of residence , and , if possible , the description of his appearance , his photograph , fingerprints and other personal information ;","( d ) information concerning the damage caused by the offence .","A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order ... \u201d","\u201c CARDINAL . Without the requested ORG consent the extradited person must not be prosecuted or punished for the crime committed before his extradition for which he had not been extradited .","Furthermore , without the requested ORG consent the person can not be transferred to a third state ... \u201d","\u201c The Contracting Parties shall notify each other of the outcome of the criminal proceedings against the extradited person . On request , a copy of the final judgment shall be sent . \u201d","\u201c Relations concerning extradition and criminal prosecution are performed by ORG ( prosecutors ) of the Contracting Parties . \u201d","Similar provisions are contained in chapter DATE ( FAC ) of LAW of GPE , which governs the procedure to be followed in the event of extradition . Under LAW \u00a7 CARDINAL of the Code , the extradition decision is taken by ORG or his deputy .","Under LAW of GPE , the death penalty is applied , until its abolition , as an exceptional punishment for certain very grave crimes . The death penalty can not be imposed on anyone who has committed offences when under DATE , on women , or on men who have reached DATE by the date of delivery of a judgment . The death penalty can be replaced by a life sentence by way of clemency . The last CARDINAL executions reportedly took place in DATE .","Under LAW of LAW , ORG of GPE encloses with a request for extradition a written undertaking on behalf of GPE that the death penalty will not be applied to a person whose extradition is being sought , if such an undertaking is a condition of the requested state \u2019s granting the extradition request .","Under LAW , prosecution in criminal proceedings and the bringing of criminal charges before the courts are carried out by prosecutors on behalf of the ORG . Under LAW DATE PERSON on ORG of GPE , ORG supervises the activities of all ORG offices in GPE .","The Coordination Council of the Prosecutor Generals of States Parties to ORG ( ORG ) was created in DATE and given the status of ORG interstate organ in DATE . CARDINAL of its tasks is to assess the efficiency of the CIS DATE Minsk Convention and to propose measures for improvement of regulation of the relations governed by that Convention . It organises cooperation between the prosecutors of the GPE members and facilitates the defence of rights of their citizens ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95703","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2009,"docname":"KONCEK AND OTHERS v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants are CARDINAL NORP nationals . Mr PERSON ( the first applicant ) was born in DATE and lives in PERSON . The second applicant , Mr ORG , is the first applicant \u2019s brother who was born in DATE and lives in PERSON . The third applicant , PERSON , was their mother . She was born in DATE , lived in Rybn\u00edk pri Ratkovej and died on DATE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicants filed an action with the Rimavsk\u00e1 Sobota ORG claiming a sum of money . On DATE the applicants specified their action .","On DATE ORG delivered a payment order . On DATE the defendant company filed an objection to the order . The order ceased to have effect .","ORG scheduled hearings for DATE and DATE . On CARDINAL and DATE the applicants requested that the hearings be cancelled and that their representative be heard , for reasons of procedural economy , by a court in PERSON .","On DATE the ORG representative was heard by a different court in accordance with the applicants\u2019 above proposal . On DATE the case file was returned to the Rimavsk\u00e1 Sobota ORG .","On DATE ORG dismissed the action . On DATE the ORG quashed the first - instance judgment .","The applicants challenged the length of the proceedings before the Rimavsk\u00e1 Sobota ORG by way of a constitutional complaint . On CARDINAL DATE ORG found that the applicants\u2019 right under LAW to a hearing within a reasonable time had not been violated . It held that there had been a single period of inactivity DATE and DATE which did not justify the conclusion that the length of the proceedings was excessive . It noted that the applicants by their unspecific action had contributed to the overall length of the proceedings .","On DATE ORG rejected the action . The decision was quashed by the court of appeal on DATE .","On DATE the case was assigned to another judge .","On DATE and DATE ORG dismissed the action and the judgments were quashed by the court of appeal on DATE and DATE , respectively . The proceedings are pending ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101952","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2010,"docname":"CASE OF GRZEGORZ JO\u0143CZYK v. POLAND","importance":4,"conclusion":"No violation of Art. 5-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and is currently detained in GPE , GPE .","On DATE the applicant was arrested on suspicion of uttering threats and domestic violence . On DATE ORG ordered his detention on remand .","On DATE he was admitted to a psychiatric hospital and diagnosed with paranoid schizophrenia . He was discharged from the hospital on DATE .","On DATE the ORG gave a decision and discontinued the proceedings against the applicant . The court found it established that the applicant had committed the offences with which he had been charged . However , he could not have been held criminally responsible as he had been suffering from paranoid schizophrenia . It further referred to the experts ' opinion and ordered that the applicant be placed in a psychiatric hospital .","On DATE the court also refused the applicant 's motion for release . The court considered that there was a reasonable suspicion that the applicant might commit another crime .","On DATE ORG extended the applicant 's detention until DATE . The court referred to the reasons given previously . In addition , it relied on the risk that the applicant might commit yet another offence . It stressed that it was necessary to keep the applicant in detention until his admission to a psychiatric hospital .","The applicant was transferred between different detention centres . After DATE he was detained in ORG .","On DATE ORG was informed that the applicant had appealed against the decision of DATE . However he had filed his appeal with ORG instead of with ORG . Therefore , ORG asked the lower court to examine whether the applicant 's motion could be regarded as an appeal against the decision of DATE .","On DATE the ORG dismissed the applicant 's appeal and upheld the decision of DATE . The court held that all the conditions for imposing the preventive measure on the applicant had been met .","On DATE the ORG gave a decision and ordered that the applicant be placed in ORG . It was also established that the applicant could be admitted to this facility on DATE . However , the applicant subsequently appealed against this decision in so far as it related to the choice of hospital and the case file was transferred to the ORG . On DATE the ORG upheld the decision of DATE .","The applicant was admitted to the hospital on DATE .","It appears that he left the hospital on a later unknown date before DATE .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines pre - trial detention as CARDINAL of the so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) .","A more detailed rendition of the relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other preventive measures can be found in the ORG 's judgments in the cases of ORG v. GPE ( no . GPE , \u00a7 \u00a7 DATE , DATE ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure provides :","\u201c If the proceedings are discontinued by reason of insanity of the accused , preliminary detention may be maintained pending the application of a preventive measure . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-113945","languageisocode":"ENG","respondent":"IRL","branch":"ADMISSIBILITY","date":2012,"docname":"MCDERMOTT AND OTHERS v. IRELAND AND KEEGAN v. IRELAND","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens","text":["The CARDINAL applicants , PERSON , PERSON , Mr PERSON and PERSON as well as PERSON , are NORP nationals who live in GPE . They are represented before the Court by PERSON , a solicitor practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON , of ORG .","NORP The case concerns the death of the applicants\u2019 children in a fire in DATE in FAC ( \u201c the Stardust \u201d ) in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .","NORP In TIME of DATE a catastrophic fire swept through the PERSON in which CARDINAL persons were present . CARDINAL persons died and CARDINAL were seriously injured . The overwhelming majority of the victims were DATE . It remains the greatest disaster to have occurred in the history of the State .","CARDINAL of the first applicant \u2019s children died in the fire , the second applicant lost a daughter as did the third and fourth applicants . CARDINAL of the fifth applicant \u2019s daughters also died in the fire and a third was injured .","Within TIME of the first call to ORG , all available police officers in the area were dispatched to the scene . A police investigation commenced immediately . An investigation team , of CARDINAL persons of various specialities , was assembled at the special incident centre under the control of ORG from ORG . Extensive forensic examinations were carried out and CARDINAL witness statements were taken . Post - mortem examinations were carried out by ORG pathologists . The Coroner held Inquests ( the Coroner \u2019s Act CARDINAL ) in DATE and made findings as to the physical causes of death . In DATE DNA tests allowed the identification of the remaining CARDINAL unidentified bodies ( not the deceased children of the applicants ) .","On DATE the ORG was established ( Tribunal of Inquiry Evidence Acts DATE and DATE ) to inquire into all aspects of the fire including its cause . It was chaired by Mr Justice PERSON assisted by CARDINAL assessors : a Professor of ORG of ORG ; the Chief Inspector of ORG in GPE ; and the Head of ORG of An GPE ( ORG ) . It sat for DATE ( DATE ) , it heard evidence from CARDINAL witnesses including victims , next - of - kin of the deceased and many experts and it commissioned extensive tests .","The Tribunal \u2019s ORG dated the CARDINAL DATE made findings and recommendations in relation to a very broad range of issues .","The ORG found that there had been serious deficiencies as regards the content of , compliance with and application of applicable planning , building , electrical , safety and fire standards by the owners of the Stardust , by relevant ORG bodies and officials . The ORG treated CARDINAL of the owner \u2019s evidence \u201c with great reserve \u201d , which owner bore a special responsibility for the \u201c recklessly dangerous \u201d practice of keeping the emergency doors chained which was done with \u201c reckless disregard \u201d for the safety of those on the LOC . The ORG found that , without all of these deficiencies , the injuries sustained would have been unquestionably less and the death toll would almost certainly have been reduced .","While the ORG \u2019s conclusions were critical of ORG ( responsible for the fire services , building regulations and planning ) , the ORG did not point to the particular fault or deficiencies of individual officials in the ORG and no administrative or disciplinary enquiries were later pursued . The ORG mentioned by name a number of officials of ORG but it did not appear to allot individual blame given the system failures at issue . Some responsibility was attributed to a Senior Building Surveyor in ORG as regards failing to follow up on the use of carpet tiles on the walls . However , the ORG accepted that it was possible , as the Surveyor had argued , that the relevant regulations were not clear on this subject .","As to the police investigation , the ORG found that it was exhaustive and meticulous and to be commended , although there had been \u201c serious short comings \u201d in the forensic investigation . Some of the owners and staff of the PERSON did not give the police the assistance to which they were entitled , CARDINAL member of staff deliberately attempting to deceive the police on whether the exit doors had been locked .","The ORG went on to make broad recommendations on the approach to be adopted to fire safety in GPE ( \u201c serious shortcomings in the approach to fire safety in GPE which much be remedied as a matter of urgency \u201d ) including on education , training , allocation of responsibility for fire safety and legislative \/ regulatory changes as well as recommendations concerning the enforcement of standards .","As to the cause of the fire , it made CARDINAL findings . On the one hand , it found , based on the absence of any evidence , that the cause of the fire was \u201c not known and may never be known \u201d . On the other hand , based on a hypothesis , it found that the more probable \u201c explanation \u201d was that the fire was started deliberately in LOC of the PERSON . However , the ORG went on , erroneously as later accepted , to adopt its hypothetical explanation of arson as a \u201c finding of fact \u201d and as its conclusion as to the probable cause of the fire .","The ORG \u2019s finding of arson provoked anger and immediate protestations among the survivors and the bereaved . It was perceived as casting a suspicion of criminal wrongdoing over all who attended the PERSON on TIME of the fire . It was considered to exclude negligence proceedings against the owners of the PERSON and that it facilitated the award of damages for malicious damage by the ORG to the owners ( see immediately below ) . It would appear that the fifth applicant \u2019s husband set up ORG ( \u201c the ORG \u201d ) in DATE , its main objective being to campaign for a further inquiry .","A police preliminary investigation report was completed in DATE : nothing factual as to the origin of the fire had come to light . The police report and file was forwarded ORG ( \u201c ORG \u201d ) who directed that no prosecution be pursued . In DATE , following the conclusion of the ORG , a further police file ( including an engineering report which was unable to identify evidence of any fault in the electrical , heating or ventilation systems which could have started the fire ) was sent to the ORG , who again directed that no prosecution be pursued . At the time , no reasons were given for the ORG \u2019s decisions . All police investigation material was made available to ORG .","In DATE the owners of the PERSON brought a claim in malicious damage against the ORG . They relied on their own expert evidence and , while they did not specifically rely on ORG , they did rely heavily on experts who had given evidence to the ORG to the effect that the fire had been caused deliberately . The ORG \u2019s expert witness considered he could not refute this evidence and ORG accepted their evidence . In DATE that court found in favour of the owners , the trial judge stating that he had no doubt that the fire was malicious . In DATE the owners were awarded a total of CARDINAL NORP Pounds ( ORG ) . The ORG was legally advised that an appeal had no reasonable prospect of success .","On DATE the Government established the Stardust Victims Compensation Tribunal ( \u201c the Compensation Tribunal \u201d ) to award ex gratia compensation for loss attributable to the fire . This tribunal comprised a ORG judge , a barrister and solicitor . Bereaved persons could claim compensation and acceptance of an award was conditional on discontinuing , or waiving the right to take , civil actions . Rejection of an award left claimants free to take civil actions except before ORG . Awards could not be appealed and no award could be made for the benefit of a deceased \u2019s estate . Claimants were entitled to be heard and could call witnesses unless the tribunal considered it unnecessary . Claimants\u2019 costs , even those already incurred in discontinued civil actions , would be discharged by the ORG . CARDINAL applications were received . Cases were heard from DATE . Given the distressing circumstances of the fatalities , claimants were awarded the maximum statutory amount for mental distress . CARDINAL applicants were refused compensation and CARDINAL withdrew their applications . CARDINAL awards , totalling GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL , were made . All awards were accepted .","The fifth applicant \u2019s husband challenged the refusal by ORG of an award for nervous shock . While it was accepted that he had suffered grief and sorrow , he had not suffered a psychiatric illness and was not therefore entitled to damages for nervous shock under the scheme . By judgment of DATE ORG rejected his case ( The ORG ( PERSON and PERSON v. the ORG ( [ DATE ] I.L.R.M. CARDINAL ) . Mr PERSON died that DATE . The PERSON family award ( including damages for mental distress and loss of earnings ) totalled DATE .","In DATE ORG published a report which recorded general conclusions and the total sum of compensation paid . The report criticised the fact that it was only before it that that many victims had been able to be medically examined and treated by doctors for the first time since the fire . The report therefore recommended that the Government put in place contingency plans , not only for rescuing victims and for their treatment in hospital , but also for monitoring their later progress .","In DATE the ORG submitted a report to ORG , ORG ( \u201c ORG \u201d ) . ORG referred the report for expert analysis which concluded that the ORG \u2019s report did not contain any new evidence . ORG was informed of this in a meeting in DATE . A letter DATE from the police to the solicitor of the ORG explained the scope of this expert analysis and detailed why there was no new evidence warranting the police re - visiting the investigation . The applicants maintained that they were given a copy of this letter only after ORG ( paragraphs CARDINAL - CARDINAL below ) .","The ORG then obtained reports from CARDINAL fire experts whose evidence was that a more probable cause of the fire was that it started , or involved combustibles in , FAC ( in the roof space ) which contained a considerably greater fuel load than LOC . The findings were published in a report called \u201c Nothing but the Truth \u201d and the report was the subject of a television documentary in DATE . In DATE the ORG , through its solicitors , presented a full submission for a further inquiry ( also called \u201c Nothing but the Truth \u201d ) to the Government . In DATE the ORG was informed that , while the expert advice to the Taoiseach ( Prime Minister ) was that the report contained no new material which would justify holding an enquiry , he was willing to arrange for an independent examination of the ORG \u2019s submissions by an appropriate person with legal experience .","Further to negotiations between the Government and the ORG , an agreement was reached on the appointment of an independent person to review the case made by ORG for a further inquiry . In DATE the appointment of Mr PERSON GPE was agreed . On DATE the Government established the independent \u201c PERSON \u201d review of the ORG \u2019s case for a renewed inquiry to establish the cause of the fire . The terms of reference were :","\u201c CARDINAL . ... [ Mr PERSON ] shall :","- consider the [ Report of the ORG ] ;","- consider all the issues which are raised by the [ ORG ] , as are summarised in the submission \u201c Nothing But The Truth \u201d and in the supplemental submission to \u201c Nothing But The Truth \u201d ( delivered on the CARDINALth of DATE ) , and all the evidence and submissions as may be presented on their behalf as he considers necessary and relevant to the case for a further inquiry .","- In the course of a private examination of the issues ,","( a ) meet such people and secure such advice as he considers necessary to ensure complete understanding of the matters and issues .","( b ) facilitate a detailed presentation by the [ Committee ] of the case for renewed inquiry as they see it .","( c ) have such regard to as he thinks appropriate to submissions , if any , as may be made by other persons \/ parties including any Government Departments or ORG or the owners of the PERSON together with any observations on or response thereto from the [ Committee ] .","- carry out such inquiries or investigations that he , in his sole discretion , considers necessary for clarification of the issues raised by the [ ORG ] , but he shall not initiate any further investigations into the cause of the fire .","Following his assessment of the issues raised by the [ ORG ] and related matters , as set out above , Mr PERSON shall , without undue delay , report to the Government and shall therein make a recommendation as to whether a new inquiry should be established and may make such other recommendations as he considers appropriate . \u201d","Mr PERSON advertised in local and national newspapers seeking submissions . He heard submissions from all interested persons and parties . ORG , whose legal representation was financed by the Government , gave oral evidence over DATE and made written submissions . A large body of documents was gathered , all of which were made available to the ORG \u2019s legal representatives . Mr PERSON considered he was entitled to assess not only the applicants\u2019 new evidence , but any other issue pertinent to the question of the need for a further enquiry .","The ORG summarised the issues raised by it as follows :","\u201c ( CARDINAL ) that the ORG \u2019s finding of fact that the fire was probably caused deliberately is based on hypothesis and not established by evidence and is for that reason inherently unsatisfactory ;","( CARDINAL ) that the hypothesis upon which the ORG \u2019s finding is based is itself demonstrably flawed because it can not be reconciled with the known facts of the fire including evidence accepted by the ORG ;","( CARDINAL ) that new expert and factual evidence establishes as a probability that the fire began in the Lamp Room and spread via ORG to LOC ;","( CARDINAL ) that the \u201c methodology \u201d used by the ORG was flawed insofar as insufficient scrutiny or examination was given to the possibility that the fire originated in the roof space having regard to the very considerable quantity of combustible material that was contained in FAC and the fact that FAC was effectively in the roof space ;","( CARDINAL ) that only the very considerable fuel load in FAC could have provided the basis for the rapid development of the fire which engulfed the PERSON within TIME . \u201d","On DATE ORG was published . Having reviewed the evidence and submissions of ORG together with the ORG \u2019s database of material , PERSON concluded ( paragraph CARDINAL ) that the ORG had established a prima facie case that :","\u201c ( CARDINAL ) the ORG \u2019s finding of fact that the fire was probably started deliberately is on its face a mere hypothetical explanation for the probable cause of the fire and is not demonstrated by any evidence that the fire was started deliberately ;","( CARDINAL ) in the absence of any such evidence and on the basis of new expert evidence relating to the early collapse of the ceiling in LOC , the explanation can not be demonstrated to be objectively justifiable . \u201d","Mr PERSON was further satisfied , on a prima facie basis , that :","\u201c ( CARDINAL ) that neither the ORG nor the ORG have identified any evidence which can establish the cause of the fire ;","( CARDINAL ) that the new and other evidence relied upon by ORG at its highest merely establishes that the fire began in the roof space but does not establish its point of origin or cause . \u201d","As to the ORG \u2019s call for a new inquiry to establish the cause of the fire , PERSON considered that , in the absence of any identified evidence which could establish its cause , the issue was whether a new inquiry would serve any useful purpose . He continued :","\u201c CARDINAL It could be argued that a further inquiry would at least establish whether the fire began in LOC or in the roof space . However , it seems to me that at a remove of DATE from DATE of the fire and in the absence of any identified evidence which can establish the cause of the fire wheresoever it arose , the public interest would not be served in establishing a further inquiry solely for that purpose . It could also be argued that there should be a further enquiry to establish the probable cause of the fire . However , it seems to me that in the absence of any identified evidence capable of establishing the cause of the fire , such an inquiry can only at best produce a hypothetical finding neither capable of proof or disproof and therefore of no obvious or any forensic value . \u201d","Mr PERSON went on to point out that :","\u201c PERSON The real difficulty is CARDINAL of record and lies in the fact that despite having made a finding based on the absence of evidence that \u201c the cause of the fire is unknown \u201d , the ORG has failed to acknowledge and record this finding as its conclusion as to the cause of the fire . Instead the ORG has only recorded its finding as to the probable cause of the fire . In so concluding and in the absence of any evidence that the fire was started deliberately , the ORG has placed on the public record a finding of probable criminal wrongdoing which is prima facie speculative and fraught with evidential and logical difficulties . Moreover , insofar as it is stated to be a \u201c finding of fact \u201d , the finding is so phrased as may well give the mistaken impression to a reasonable man or woman in the street that it is a finding established by evidence that the fire was started deliberately and not a mere hypothetical explanation for the probable cause of the fire . \u201d","Mr PERSON found this to be profoundly unsatisfactory to the survivors and the bereaved who , through ORG , argued that such was the scale of the disaster that it has become a matter of communal if not national history to an extent that engaged a public interest in ensuring that the public record was factually accurate and established by evidence .","NORP However , the new and other evidence relied on by the Committee , at its highest , established that the cause of the fire was unknown , a finding already made but not properly acknowledged and recorded by the ORG . As to how to correct this , PERSON proposed alternative solutions . Since the ORG was established by ORG , the ORG could consider whether it could correct the public record by placing on the record of ORG an acknowledgement of the ORG \u2019s findings that there was no evidence that the fire was started deliberately and that the cause of the fire was unknown ; or , if such an acknowledgement could not be made by the ORG , a further limited inquiry would be needed but simply to clarify the public record in this limited respect .","Finally , noting the failure by the ORG to act on the earlier recommendation of ORG , PERSON recommended that a committee be formed to monitor the progress of victims and to ensure that counselling and medical treatment , where necessary and appropriate , was afforded to survivors and the bereaved at the expense of the ORG .","On DATE the Coffey Report was published , the Government published a statement acknowledging and accepting the conclusions and recommendation of ORG . On DATE and DATE PERSON ( ORG ) and PERSON ( the ORG ) respectively , passed motions acknowledging and accepting the conclusions and recommendation of ORG and , notably , that the cause of the fire was unknown and that arson was merely a hypothetical explanation which had not been demonstrated .","In DATE the Government published a LAW which began operating in DATE .","A building regulation regime was introduced by LAW DATE and LAW DATE . LAW DATE was brought into force in DATE and updated in DATE and ORG were also adopted thereunder which , inter alia , made locking of exits and blocking escape routes from places of assembly an offence . ORG DATE provided for increased powers for fire authorities to inspect LOC , issue warning notices and , where necessary , serve closure notices . A series of ORG have been published by ORG providing fire safety advice for persons in control of LOC . Following a full review of fire services in GPE in DATE , ORG was implemented to further enhance fire safety enforcement powers . A ORG ( DATE ) was introduced to improve responses to major emergencies and a ORG was formed in DATE . The numbers of fire services\u2019 staff sharply increased and fire services funding and training significantly improved . Following the criticisms of it in ORG , ORG significantly increased staffing especially in fire prevention , established a training centre and purchased new fire stations and equipment as well as a new communications centre ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61437","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2003,"docname":"CASE OF MILITARU v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award","judges":"Gaukur J\u00f6rundsson","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant filed for divorce before ORG . She also claimed custody of the couple 's CARDINAL children , born respectively in DATE , DATE and DATE , and requested the payment of maintenance and the division of the matrimonial property .","After repeated motions for bias filed by the applicant 's husband , ORG was first appointed to hear the case . As a consequence of the husband 's further motion for bias , the case - file was then transferred to ORG .","On DATE the President , the Vice - President and all the judges of ORG declared bias .","On DATE ORG appointed ORG and the Borsod - Aba\u00faj - Zempl\u00e9n County Regional Court to hear the case .","On DATE ORG requested the applicant to supplement her action within DATE . Following the grant of an extension of this time - limit , the applicant submitted additional material on DATE .","A hearing was held on DATE .","On DATE ORG requested the school attended by the couple 's children to provide an opinion . It also appointed ORG ( \u201c the Institute \u201d ) to give an expert psychological opinion on the parties and their children and requested to be advised as to which parent was the more suitable to raise the children .","NORP The applicant together with the CARDINAL children failed to appear at the examinations scheduled for DATE as they had not received any notification .","The examinations scheduled for DATE could not be carried out as the husband and CARDINAL of the children failed to appear .","On DATE the Borsod - Aba\u00faj - Zempl\u00e9n County Regional Court found the husband 's renewed motion for bias of DATE unsubstantiated .","On DATE ORG ordered the parties to provide information about the children 's situation and the issue of maintenance .","In her letters of DATE and CARDINAL DATE , the applicant requested ORG to schedule a hearing in the case and , as an interim measure , to order her husband to pay maintenance .","On DATE the husband filed a motion for bias against all of the judges of the county .","On CARDINAL DATE the applicant requested ORG to deal with the case urgently . On DATE she repeatedly requested the court to pronounce the divorce , to grant her custody of the children , to oblige her husband to leave their flat and to pay maintenance .","On DATE ORG dismissed the husband 's renewed motion for bias and warned him that if he submitted another unsubstantiated motion , he would be fined .","At the court 's request of CARDINAL DATE , the applicant provided information about the maintenance of the children .","On DATE the husband again filed a motion for bias against the judges dealing with the case .","On DATE ORG suspended the proceedings pending the outcome of a parallel action to place the husband under guardianship .","At the applicant 's request , on DATE ORG decided to resume the proceedings and to appoint a guardian ad litem to represent the husband .","On DATE the applicant elaborated her action and requested the court to obtain psychological and educational opinions on the children . The latter opinion was submitted on DATE . On DATE the ORG appointed an expert psychologist .","On DATE the parties ' CARDINAL eldest children requested the court to place them , by way of an interim measure , with the applicant .","On DATE the ORG informed the court that it struck the case out of its list as the husband and the CARDINAL eldest children had repeatedly failed to appear for the examination .","On DATE ORG ordered that the CARDINAL eldest children be placed with the applicant and obliged the husband to hand them over to her within DATE . On DATE the husband appealed against this decision . On DATE the applicant informed the court that its order could not be executed as the children had in the meantime been placed in a children 's home .","On DATE ORG dismissed the husband 's renewed motion for bias of DATE .","On DATE the Borsod - Aba\u00faj - Zempl\u00e9n County ORG quashed the order of CARDINAL DATE and remitted the issue of interim measures to ORG .","At the applicant 's request , on DATE ORG discontinued the proceedings . In her appeal , the applicant requested that the proceedings be resumed and that the case , rather than being discontinued , should be transferred from PERSON to a court in the town where she was domiciled . On DATE the Borsod - Aba\u00faj - Zempl\u00e9n County Regional Court dismissed her appeal .","On DATE the applicant renewed her action before ORG .","A hearing took place on DATE and a further hearing was scheduled for DATE .","At present , the case is pending before ORG .","Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure reads as follows :","\u201c If a party submits a motion for bias , which is manifestly unsubstantiated , or repeatedly submits unsubstantiated motions in the same proceedings in respect of the same judge , the court may , as a provision of the order dismissing the motion , impose a fine on him . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103301","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2011,"docname":"TUCKA v. THE UNITED KINGDOM (NO. 1)","importance":3,"conclusion":"Inadmissible","judges":"Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","CARDINAL .","In DATE the applicant was arrested and charged with gross indecency . He was subsequently also charged with rape . The charge of rape related to an incident alleged to have occurred while the complainant was between DATE . It was not reported to the police until she was DATE .","On DATE the applicant was convicted of CARDINAL count of rape and CARDINAL counts of gross indecency . He was sentenced to DATE imprisonment , including DATE for the rape count .","The applicant appealed against conviction and sentence . On CARDINAL DATE ORG rejected his appeal against conviction . However , it reduced the sentence of imprisonment in respect of the rape count to DATE . His total sentence was therefore CARDINAL of CARDINAL years\u2019 imprisonment .","The applicant immediately applied to ORG ( \u201c CCRC \u201d \u2013 see below ) to have his case referred to ORG . No copy of the application has been provided to ORG and the grounds for the request to the ORG are unknown .","On DATE , the ORG notified the applicant that it had decided not to refer his case to ORG . The decision of the ORG has not been provided to the ORG , despite specific requests on DATE and DATE .","Section CARDINAL of LAW DATE ( \u201c the DATE LAW ) sets out the power of the ORG to refer a case to ORG and provides :","\u201c ( CARDINAL ) Where a person has been convicted of an offence on indictment in GPE and GPE , the Commission\u2014","( a ) may at any time refer the conviction to ORG , and","( b ) ( whether or not they refer the conviction ) may at any time refer to ORG any sentence ( not being a sentence fixed by law ) imposed on , or in subsequent proceedings relating to , the conviction . \u201d","Section CARDINAL of the CARDINAL Act provides :","\u201c CARDINAL ) A reference of a conviction , verdict , finding or sentence shall not be made under any of sections CARDINAL unless\u2014","( a ) the Commission consider that there is a real possibility that the conviction , verdict , finding or sentence would not be upheld were the reference to be made ,","( b ) the ORG so consider\u2014","( i ) in the case of a conviction , verdict or finding , because of an argument , or evidence , not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it , or","( ii ) in the case of a sentence , because of an argument on a point of law , or information , not so raised , and","( c ) an appeal against the conviction , verdict , finding or sentence has been determined or leave to appeal against it has been refused .","( CARDINAL ) Nothing in subsection ( CARDINAL)(b)(i ) or ( c ) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59158","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2001,"docname":"CASE OF JANE SMITH v. THE UNITED KINGDOM","importance":2,"conclusion":"No violation of Art. 8;No violation of P1-1;No violation of P1-2;No violation of Art. 6-1;No violation of Art. 14","judges":"Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza","text":["The applicant is a gypsy by birth . Since her birth she has travelled constantly , mainly in the GPE area , with her family in search of work . After marrying her husband , A , DATE , this nomadic way of life continued . They have CARDINAL children , born in DATE .","The applicant and A are illiterate , as , due to their way of life , they have received little , if any , formal education . They regard travelling as detrimental to both the health of their family and to the education of their children . The applicant suffers from depression , her husband from severe gout and several of her children are asthmatic .","NORP In pursuit of a more stable existence , the applicant and her husband applied repeatedly throughout DATE for places on many of the local private and official sites in GPE including the official sites in ORG . Their applications proved unsuccessful as all the sites were full with long waiting lists . Consequently , the applicant and her husband had no option but to continue travelling . They were required to move on from roadside to roadside on innumerable occasions . For a period of time they stayed at a private site but when it was redeveloped as an official site , they were forced to move on as no space was available for them . In DATE they stayed on a relative \u2019s site for a period of time but were forced to leave . While the Government have suggested that in fact the applicants owned this land and that it received planning permission , this was denied by the applicant . According to the applicant , the land belonged to her brother . When , following his divorce , the land was ordered to be sold by the court as part of the financial settlement , the applicant had to leave .","In DATE , the applicant bought land known as ORG , ORG . It was a portion of a garden in a LOC area where there was already some residential development . The applicant moved a mobile home onto the land and took up residence with her family . In a declaration dated DATE the applicant \u2019s uncle , PERSON , a member of ORG and an employee of ORG , stated that he had attempted on numerous occasions prior to DATE to obtain a site on an official site on behalf of the applicant without success .","On DATE , ORG ( \u201c the ORG \u201d ) rejected the applicant \u2019s application to join the waiting list for rented council accommodation on the basis that they had not lived in the borough for a minimum of DATE . The applicant alleged that by this time they had lived for DATE in the Runnymede area , although they had been compelled to move on frequently from place to place .","In DATE , ORG had granted a declaration that ORG was in breach of its duty under section CARDINAL of GPE DATE to provide provision for gypsies ( NORP v. Secretary of ORG ex parte Smith [ DATE ] C.O.D. CARDINAL ) . In DATE , the Secretary of ORG issued a direction under section CARDINAL of the DATE Act directing that CARDINAL caravans should be accommodated . However , on CARDINAL DATE , GPE was declared a designated area pursuant to LAW DATE . The area was designated on the basis that it was not expedient for adequate provision to be made for gypsies residing in or resorting to the borough .","The previous owner of ORG , also a gypsy , had been refused planning permission in DATE to live on the land in a caravan on the basis that it conflicted with local and national planning policies . The ORG considered that the stationing of a caravan would be detrimental to the character of the Green Belt . An enforcement notice had been issued requiring discontinuance of the unauthorised use . The applicant was aware of this situation and the fact that the previous owner had appealed to the Secretary of ORG for the Environment against the refusal of planning permission and the enforcement order . When the applicant purchased the land , she was advised that there was a special concession for granting planning permission to gypsies in GPE areas under Circular CARDINAL\/CARDINAL . Accordingly , she took over the appeal from the previous owner .","On DATE , ORG was held . An Inspector appointed by ORG heard evidence and representations from the applicant and ORG . By a letter dated DATE , the ORG dismissed the appeal .","\u201c CARDINAL . The mobile home is situated on an enclosed plot of land fronting FAC , adjacent to No . CARDINAL . This land is separated from the adjacent house by a screen fence , which continues along the rear boundary of the appeal site . The site is contained on its other side boundary by a row of conifer trees . The land has a frontage of QUANTITY to the road , most of which is formed by a hedge . \u2026","From my inspection of the site and its surroundings and from the representations made I consider that there are CARDINAL main issues \u2026 Firstly , whether the use of the land as a residential caravan site for a mobile home and associated operational development is appropriate to this part of ORG ; and , if not , secondly , whether there are very special circumstances that would justify the retention of inappropriate development in LOC .","On the first issue , the use of land as a residential caravan site is not one of the purposes listed as being appropriate to the green belt in Planning Policy Guidance Note CARDINAL ( NORP ) . However , policy CCARDINAL of the approved PERSON DATE and policy PECARDINAL of \u2026 the Replacement Structure Plan DATE provide that gypsy caravan sites may be appropriate and necessary in the green belt , but they will not be considered acceptable as of right .","The appeals site lies within the south west sector of ORG . This section is described as containing valuable green wedges which thrust inwards to the GPE west of Molesey . PERSON is a small settlement located within CARDINAL of these wedges . Given its location within a narrow stretch of generally open countryside between FAC and Chertsey I agree with the council that the appeals site lies within a particularly sensitive part of the green belt .","From my own observations I agree \u2026 that FAC comprises CARDINAL distinct parts and that the appeals site lies within the significant gap between LOC and CARDINAL which is predominantly rural in character despite the presence of Nos CARDINAL and CARDINAL . The rustic feel of the locality is enhanced by the woodlands to the rear of < the applicants\u2019 > land and the field on the opposite side \u2026 Notwithstanding the previous use of the land as part of the garden of No . CARDINAL , the unauthorised use and works represent an encroachment of additional development into a predominantly rural locality . It also contributes towards the coalescence of the nearby built up frontages on FAC and thereby the merger of nearby settlements . As a result I consider that the development subject to the appeals conflicts with the second and third objectives of government green belt policy listed in PPGCARDINAL . \u2026","Whilst the mobile home is set behind the front of the adjoining house and its range of visibility from the other direction on FAC is limited by conifers on its western boundary , it , and the related operational development is significantly different to the character of the touring caravans that are parked in some of the nearby gardens , which are incidental to the enjoyment of the residential curtilages within which they stand . Notwithstanding the support of some nearby residents , I consider that the discernible presence of the unauthorised development on the appeals site is harmful to the appearance of this mainly rural location . \u2026 In light of this and its particular impact on the aims of green belt policy , I conclude \u2026 that the use of the land for a residential caravan site for a mobile home and associated operational development is not appropriate to this part of FAC .","Turning to my second issue , ORG CARDINAL states that it may be necessary to accept the establishment of gypsy caravan sites in green belt areas and that there are advantages in gypsies providing their own sites . However , in designating PERSON under LAW DATE on the grounds of expediency the Secretary of ORG gave significant weight to the extent of and characteristics of the green belt within the borough and the number of sites that had already been provided within these areas . \u2026","Circular CARDINAL\/CARDINAL advises that after a district or borough has been designated , authorities may have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area and it is DATE since the designation of ORG in DATE . However since then the DATE surveys indicate that the number of vans parked illegally in the borough has tended to decline . Consequently , having regard to the reasons given for designation , there does not appear to be a case at this time for permitting additional gypsy caravan sites , in the green belt in ORG , contrary to policies ORG and HCARDINAL , unless there are very special circumstances .","Having regard to the personal circumstances of < the applicants > none of the family requires regular hospital treatment and I do not consider the ailments of < the applicant and her husband > and CARDINAL of their children are so exceptional or debilitating as to constitute compelling reasons for allowing inappropriate development in the green belt . Whilst I sympathise with < the applicants\u2019 > aim to have the CARDINAL youngest children educated , CARDINAL of these is currently at school and there is no evidence that this locality is preferable to any other in terms of access to educational facilities .","I can appreciate < the applicants\u2019 > current desire to settle in CARDINAL place but there is no specific reason why this has to be in the green belt . With regard to the consequences of < the applicants > having to vacate the site you state that they would have no alternative to reverting to their previous existence of moving from CARDINAL unauthorised site to another , with consequent hardship for the family and inconvenience to the general public . In this respect \u2026 the borough and district councils have no record that < the applicants > have sought a place on any of the official sites and < the applicant > stated that she has not enquired whether there was any space on any of the sites occupied by her relatives . Additionally , it would be open to < the applicants > to seek priority housing from the ORG .","NORP \u2026 I accept that < the applicant and her husband > have lived and worked in this area for some time and that it might not be possible to accommodate < their > mobile home on any authorised site within the area . However , on the basis of the evidence at the inquiry I am not convinced that all avenues relating to possible alternative accommodation have been fully explored . I am not , therefore , assured that < the applicants > inevitably would have to return to living on unauthorised sites \u2026 In any event , I am not persuaded that such a consequence \u2026 together with any limited benefits that might arise in terms of the health and education of the family represent very special circumstances that would justify the retention of this inappropriate development in this particularly sensitive part of FAC . \u2026 \u201d","The applicant remained on her land in the caravan as the family had not been offered a place on an official campsite and thus had no alternative legal site to place their caravan .","On DATE , the applicant applied to the ORG for planning permission to build a bungalow , of which there were already CARDINAL on FAC . The ORG refused planning permission . On DATE , the applicant appealed this decision by written statement as she could not afford a public enquiry .","On DATE , an ORG appointed by ORG dismissed the appeal on similar grounds to the earlier appeal , namely that the bungalow was inappropriate within the Green Belt and that there were no special circumstances which would override the strong presumption against such a development , which in this case would contribute to the coalescence of existing developments and further diminish the rural character of the area . As a consequence , the applicant and her husband were in breach of the enforcement notice and liable to receive a summons issued by ORG .","Injunction proceedings were instituted against the applicant and her family by the ORG . On DATE , the ORG obtained an injunction in the High Court requiring the applicant and her family to move off their land immediately . The applicant applied for judicial review of this decision and was granted limited legal aid . However , she received counsel \u2019s opinion which advised that the application was doomed to failure .","In light of the new Criminal Justice and LAW DATE , which came into force on DATE , the applicant , in fear of being on the roadside , applied to be placed on the local authority homeless list on DATE . The ORG informed the applicant \u2019s solicitors on DATE that the applicant had been placed on the list .","The applicant was offered accommodation in CARDINAL flats in a town . However , the rent was excessively high and there was no facility to keep her husband \u2019s van nor his tarmacadaming and landscape gardening equipment . Moreover , the environment next to a busy , treeless road was contrary to the country existence which she and her family had enjoyed all their lives . They have applied for accommodation in a more natural environment but no offer has yet been made . ORG had previously offered CARDINAL alternative pieces of land which were subsequently withdrawn due to a methane gas leak , boggy ground and vicinity to a rubbish dump respectively .","NORP The local authority has stated that , in the event that the applicant is forced to leave the site , the authority will provide temporary accommodation for her until permanent accommodation becomes available . However , in view of the restrictions on development within LOC , all accommodation offered will be in urban areas .","NORP The DATE Annual Report from ORG planning department revealed that following the coming into force of ORG LAW DATE ORG no longer had an obligation to identify new gypsy caravan sites and that unless very special circumstances were proved it was unlikely that new sites would be allowed in LOC and sensitive areas . The statistics for DATE showed that the official sites in the area catered for CARDINAL caravans while there were another CARDINAL caravans on unauthorised sites .","The applicant stated that in DATE the local authority decided to institute proceedings against her . Though no proceedings were issued , the ORG threatened to do so from time to time and she lived under the threat of committal for contempt . The applicant \u2019s husband continued to suffer from severe gout and was recently in hospital for treatment . He and the applicant both suffer from depression . Her eldest son , his wife , their son and baby lived with her , as well as CARDINAL other children . The applicant \u2019s children of school age were attending the local school regularly . The applicant stated that she continued to visit gypsy sites to see whether pitches were available but she has not been offered a pitch on any site and has not received any visits from the local authority .","In the Runnymede area , there were CARDINAL local authority sites accommodating CARDINAL caravans . In addition there were CARDINAL caravans on authorised sites and CARDINAL caravans on unauthorised sites . The applicant submitted that since the DATE direction by the Secretary of ORG CARDINAL additional pitches were provided . Since DATE , there had been no increase in provision in either public or private sites and no decrease in the number of unlawful encampments .","The applicant submitted that all the area of the ORG was in the Metropolitan Green Belt area while the ORG stated that only a large part of it was . The diagram and materials submitted from ORG DATE indicates that PERCENT of the County was GPE , PERCENT urban and PERCENT countryside beyond LOC , which includes some areas designated as areas of outstanding natural beauty ( PERSON ) or designated landscape value ( ORG ) . Parts of the LOC area are also classed as PERSON and ORG . PERSON and ORG areas account for PERCENT of the County . According to the diagram , the NORP area consists entirely of LOC and urban centres .","ORG DATE ( as amended by LAW DATE ) ( \u201c the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .","An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .","The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , \u00a7 DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG \u2019s decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .","If a development is carried out without the grant of the required planning permission , the local authority may issue an \u201c enforcement notice \u201d if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .","There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .","Again there is a further right of appeal \u201c on a point of law \u201d to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector \u2019s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .","Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .","The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document ORG ( DATE ) .","\u201c CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE \u2026","The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .","There are CARDINAL purposes in GPE :","\u2013 to check the unrestricted sprawl of large built - up areas ;","\u2013 to prevent neighbouring towns from merging into one another ;","\u2013 to assist in safeguarding the countryside from encroachment ;","\u2013 to preserve the setting and special character of historic towns ; and","\u2013 to assist in urban regeneration by encouraging the recycling of derelict and other urban land . \u2026","NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead . \u2026","The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances \u2026","Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development . \u201d","Part II of GPE DATE ( \u201c the DATE LAW ) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in DATE , in particular the closure of commons carried out by local authorities pursuant to section CARDINAL of GPE and ORG DATE . LAW of LAW defined \u201c gypsies \u201d as :","\u201c persons of nomadic habit of life , whatever their race or origin , but does not include members of an organised group of travelling showmen , or of persons engaged in travelling circuses , travelling together as such \u201d .","Section CARDINAL of the DATE Act provided that it should be the duty of local authorities :","\u201c to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area \u201d .","The Secretary of ORG could direct local authorities to provide caravan sites where it appeared to him to be necessary ( section CARDINAL ) .","Where the Secretary of ORG was satisfied either that a local authority had made adequate provision for the accommodation of GPE , or that it was not necessary or expedient to make such provision , he could \u201c designate \u201d that district or county ( section CARDINAL of the DATE Act ) .","NORP The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway , on any other unoccupied land or on any occupied land without the consent of the occupier ( section CARDINAL ) .","In addition , LAW gave to local authorities within designated areas power to apply to a GPE court for an order authorising them to remove caravans parked in contravention of section CARDINAL .","By DATE it had become apparent that the rate of site provision under section CARDINAL of the CARDINAL Act was inadequate , and that unauthorised encampments were leading to a number of social problems . In DATE , therefore , the Government asked Sir PERSON to carry out a study into the operation of LAW . He reported in DATE ( Accommodation for Gypsies : A report on the working of GPE DATE , \u201c the Cripps Report \u201d ) .","Sir PERSON estimated that there were CARDINAL NORP living in GPE and GPE . He found that :","\u201c CARDINAL - and - a - half years after the coming into operation of Part II of LAW , provision exists for CARDINAL of the estimated total number of gypsy families with no sites of their own . DATE of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law : when they stop for TIME they have no alternative but to break the law . \u201d","The report made numerous recommendations for improving this situation .","Circular CARDINAL\/CARDINAL was issued by ORG . Its stated purpose was to provide local authorities with guidance on \u201c statutory procedures , alternative forms of gypsy accommodation and practical points about site provision and management \u201d . It was intended to apply until such time as more final action could be taken on the recommendations of ORG .","Among other advice , it encouraged local authorities to enable self - help by gypsies through the adoption of a \u201c sympathetic and flexible approach to [ Gypsies\u2019 ] applications for planning permission and site licences \u201d . Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming , it recommended that in such cases enforcement action not be taken until alternative sites were available in the area .","Circular CARDINAL\/CARDINAL , which was issued on DATE , stated , inter alia , that \u201c it would be to everyone \u2019s advantage if as many gypsies as possible were enabled to find their own accommodation \u201d , and thus advised local authorities that \u201c the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions \u201d .","In addition , MONEY was spent under a scheme by which MONEY grants were made available to local authorities to cover the costs of creating gypsy sites .","Section CARDINAL of ORG LAW DATE ( \u201c the DATE LAW ) , which came into force on DATE , repealed sections CARDINAL of the DATE Act and the grant scheme referred to above .","Section CARDINAL of the DATE Act gives to a local authority power to direct an unauthorised camper to move . An unauthorised camper is defined as","\u201c a person for the time being residing in a vehicle on any land forming part of the highway , any other unoccupied land or any occupied land without the owner \u2019s consent \u201d .","Failure to comply with such a direction as soon as practicable , or re - entry upon the land within DATE , is a criminal offence . Local authorities are able to apply to a GPE court for an order authorising them to remove caravans parked in contravention of such a direction ( section CARDINAL of the DATE Act ) .","In the case of NORP v. ORG , ex parte Atkinson ( DATE ) , PERSON referred to the DATE Act as \u201c Draconic \u201d legislation . He commented that :","\u201c For DATE the commons of GPE provided lawful stopping places for people whose way of life was or had become nomadic . Enough common land had survived DATE of enclosure to make this way of life still sustainable , but by s.CARDINAL of ORG and ORG DATE local authorities were given the power to close the commons to travellers . This they proceeded to do with great energy , but made no use of the concomitant powers given them by s.CARDINAL of the same Act to open caravan sites to compensate for the closure of the commons . By DATE , therefore ORG legislated to make the s.CARDINAL power a duty , resting in rural areas upon county councils rather than district councils \u2026 For DATE there followed a history of non - compliance with the duties imposed by the Act of DATE , marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty , to apparently little practical effect . The default powers vested in central government to which the court was required to defer , were rarely , if ever used .","The culmination of the tensions underlying the history of non - compliance was the enactment of \u2026 the Act of DATE \u2026 \u201d","New guidance on gypsy sites and planning , in the light of LAW , was issued to local authorities by the Government in Circular CARDINAL\/CARDINAL ( DATE ) , which cancelled ORG CARDINAL\/CARDINAL ( see above ) .","Councils were told that :","\u201c In order to encourage private site provision , local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development . ... The aim should be as far as possible to help gypsies to help themselves , to allow them to secure the kind of sites they require and thus help avoid breaches of planning control . \u201d ( para . CARDINAL )","However :","\u201c As with other planning applications , proposals for gypsy sites should continue to be determined solely in relation to land - use factors . Whilst gypsy sites might be acceptable in some rural locations , the granting of permission must be consistent with agricultural , archaeological , countryside , environmental , and LOC policies ... \u201d ( para . CARDINAL ) .","It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted , for example Areas of Outstanding Natural Beauty , Sites of Special Scientific Interest . Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt ( paragraph CARDINAL ) .","Further guidance issued by the Secretary of ORG dated DATE concerned the unauthorised camping by gypsies and the power to give a direction to leave the land ( LOC above ) . Paragraphs CARDINAL - CARDINAL required local authorities to adopt \u201c a policy of toleration towards unauthorised gypsy encampments :","\u201c CARDINAL . ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which can not be effectively controlled , an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance . Accordingly , authorities should consider tolerating PERSON presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites , for example by providing basic services for gypsies e.g. toilets , a skip for refuse and a supply of drinking water .","Where gypsies are unlawfully camped on Government - owned land , it is for the local authority , with the agreement of the land - owning ORG , to take any necessary steps to ensure that the encampment does not constitute a hazard to public health . It will continue to be the policy of the Secretaries of ORG that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance .","The Secretaries of ORG continue to consider that local authorities should not use their powers to evict gypsies needlessly . They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land . \u201d","Paragraphs CARDINAL further require local authorities to consider their obligations under other legislation before taking any decisions under LAW . These obligations include their duties concerning pregnant women and newly - born children , the welfare and education of children and the housing of homeless persons . In a judgment of CARDINAL DATE ( NORP v. ORG , ex parte Atkinson , NORP v. ORG , ex parte GPE and NORP v. ORG , ex parte GPE , unreported ) , ORG held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages .","In a letter dated CARDINAL DATE , ORG drew to the attention of all local planning authorities in GPE that Circular CARDINAL\/CARDINAL required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and\/or criteria based policies against which to decide planning applications . The Government was concerned that this guidance had not been taken up . ORG research ( see below ) had showed that PERCENT of local authorities ( CARDINAL ) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision . It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and the detailed policies should be provided . Compliance with this guidance was essential in fulfilling the ORG \u2019s objective that gypsies should seek to provide their own accommodation , applying for planning permission like everyone else . It was necessary , therefore , that adequate gypsy site provision be made in development plans to facilitate this process .","The Advisory Council for ORG and Other Travellers ( ACERT ) which carried out research sponsored by ORG , noted in its report that since DATE private site provision had increased by CARDINAL caravans per year while the pace of public site provision had declined by CARDINAL caravans , disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision . Noting the increase of gypsies in housing and the increased enforcement powers under LAW , it questioned , if these trends continued , the extent to which the ethnic , cultural and linguistic identity of ORG people would be protected .","NORP The research looked , inter alia , at CARDINAL refused private site applications , which showed that PERCENT related to land within the countryside and that PERCENT were refused on grounds relating to the amenity value ( e.g. Green Belt , conservation area locations ) . Of the CARDINAL gypsy site applicants interviewed , for most acquiring permission for their own land was an important factor in improving the quality of life , gaining independence and providing security . For many , the education of their children was another important reason for private site application . All save CARDINAL had applied for permission retrospectively .","NORP The report stated that the figures for success rates in CARDINAL planning appeals showed that before DATE the success rate had averaged PERCENT but had decreased since . Having regard however to the way in which data was recorded , the actual success rate was probably PERCENT as given as the figures in DATE and DATE by the gypsy groups and ORG respectively . Notwithstanding the objectives of planning policy that local authorities make provision for gypsies , most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land - use criteria in the particular case . It was therefore not surprising that ORG most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development . Granting of permission for private sites remained haphazard and unpredictable .","NORP In DATE , ORG survey on caravans GPE disclosed that of CARDINAL caravans counted , CARDINAL were accommodated on local authority pitches , CARDINAL on privately owned sites and CARDINAL on unauthorised sites . Of the latter , CARDINAL gypsy caravans were being tolerated on land owned by non - gypsies ( mainly local authority land ) and CARDINAL gypsy caravans tolerated on land owned by gypsies themselves . On these figures , CARDINAL caravans were therefore on unauthorised and untolerated sites while over PERCENT of caravans were stationed on authorised sites .","Local authority duties to the homeless were contained in Part VII of LAW , which came fully into force on DATE . Where the local housing authority was satisfied that an applicant was homeless , eligible for assistance , had a priority need ( e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age , physical disability etc ) , and did not become homeless intentionally , the authority was required , if it did not refer the application to another housing authority , to secure that accommodation was available for occupation by the applicant for a minimum period of DATE . Where an applicant was homeless , eligible for assistance and not homeless intentionally , but was not a priority case , the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation .","This Convention , opened for signature on DATE , provides inter alia :","\u201c LAW","The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights , and as such falls within the scope of international co - operation .","Article CARDINAL","The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law . In this respect , any discrimination based on belonging to a national minority shall be prohibited .","NORP The parties undertake to adopt , where necessary , adequate measures in order to promote , in all areas of economic , social , political and cultural life , full and effective equality between persons belonging to a national minority and those belonging to the majority ; In this respect , they shall take due account of the specific conditions of the persons belonging to national minorities .","The measures adopted in accordance with paragraph CARDINAL shall not be considered to be an act of discrimination .","Article CARDINAL","The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture , and to preserve the essential elements of their identity , namely their religion , language , traditions and cultural heritage .","Without prejudice to measures taken in pursuance of their general integration policy , the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation . \u201d","The Convention entered into force on DATE . GPE signed LAW it opened for signature and ratified it on DATE . It entered into force for GPE on DATE . By DATE , it had been signed by CARDINAL of ORG \u2019s CARDINAL member states and ratified by CARDINAL .","The Convention did not contain any definition of \u201c national minority \u201d . However GPE in its Report of DATE to ORG concerned with the ORG accepted that gypsies are within the definition .","Recommendation CARDINAL(CARDINAL ) of ORG on NORP in LOC included the recognition that gypsies , as one of the very few non - territorial minorities in LOC , \u201c need special protection \u201d . In its general observations , the ORG stated inter alia :","\u201c CARDINAL . Respect for the rights of NORP , individual , fundamental and human rights and their rights as a minority , is essential to improve their situation .","Guarantees for equal rights , equal chances , equal treatment and measures to improve their situation will make a revival of PERSON language and culture possible , thus enriching the NORP cultural diversity . \u201d","Its recommendations included :","\u201c xiv . NORP member states should alter national legislation and regulations which discriminate directly or indirectly against NORP ; \u2026","xviii . further programmes should be set up in the member states to improve the housing situation , education \u2026 of those NORP who are living in less favourable circumstances . \u2026 \u201d","In DATE , ORG against Racism and Intolerance issued General Policy Recommendation No . CARDINAL : Combating Racism and Intolerance against ORG . Its recommendations included :","\u201c \u2026 to ensure that discrimination as such , as well as discriminatory practices , are combated through adequate legislation and to introduce into civil law specific provisions to this end , particularly in the fields of \u2026 housing and education . \u2026","\u2026 to ensure that the questions relating to \u2018 ORG within a country , in particular , regulations concerning residence and town planning , are solved in a way which does not hinder the life of the persons concerned ; \u2026 \u201d","On DATE , ORG passed a ORG on the situation of NORP in the Community , calling on the governments of member states \u201c to introduce legal , administrative and social measures to improve the social situation of NORP and Travelling People in LOC \u201d ; and recommending that \u201c the ORG , the ORG and the governments ORG should do everything in their power to assist in the economic , social and political integration of NORP , with the objective of eliminating the deprivation and poverty in which the great majority of LOC \u2019s Gypsy population still lives at the present time \u201d .","DATE . Protection of minorities has become one of the preconditions for accession to ORG . In DATE , ORG adopted \u201c Guiding Principles \u201d for improving the situation of GPE in candidate countries , based expressly on the recommendations of ORG of Roma \/ Gypsies and the OSCE High Commissioner on ORG recommendations .","The situation of GPE and PERSON has become a standard item on FAC the agenda of ORG . CARDINAL structural developments \u2013 ORG ( ORG ) and the appointment of a High Commissioner for ORG also concerned protection of GPE and PERSON as minorities .","On DATE , the High Commissioner \u2019s Report on ORG and PERSON in LOC was published . Part PERSON of the Report dealt with the living conditions of GPE , noting that while nomadism had been central to NORP history and culture a majority of GPE were now sedentary ( CARDINAL estimation gave PERCENT as nomadic , PERCENT as semi - nomadic , moving DATE , while PERCENT were sedentary ) . This was particularly true of LOC , where there had been in the past policies of forced sedentarization :","\u201c It must be emphasised that whether an individual is nomadic , semi - nomadic or sedentary should , like other aspects of his or her ethnic identity , be solely a matter of personal choice . The policies of some LOC participating GPE have at times breached this principle , either by making a determination of a group \u2019s fundamental lifestyle that is inconsistent with its ORG choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity . \u201d ( pp . CARDINAL - CARDINAL )","The ORG stated that for those GPE who maintained a nomadic or semi - nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity . It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites , the number and size of available sites was insufficient in light of the need :","\u201c \u2026 The effect is to place nomadic GPE in the position of breaking the law \u2013 in some countries , committing a crime \u2013 if they park in an unauthorized location , even though authorized sites may not be available . \u201d ( pp . CARDINAL - CARDINAL )","The Report dealt specifically with the situation of NORP in GPE ( pp . CARDINAL ) . It found :","\u201c Under current law , NORP have CARDINAL options for lawful camping : parking on public caravan sites \u2013 which the ORG acknowledges to be insufficient ; parking on occupied land with the consent of the occupier ; and parking on property owned by the campers themselves . ORG has issued guidance to local authorities aimed at encouraging the last approach . In practice , however , and notwithstanding official recognition of their special situation and needs , many NORP have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property \u2026 \u201d ( pp . CARDINAL - CARDINAL ) .","Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans , it stated :","\u201c \u2026 This scheme allows wide play for the exercise of discretion DATE and that discretion has repeatedly been exercised to the detriment of NORP . A DATE report by ORG described the prospects of applying for planning permission for a Gypsy site as \u2018 a daunting one laced with many opportunities for failure\u2019 . In DATE , DATE in which the success of application rates was evaluated , it was ascertained that MONEY of applications for planning permission by NORP were denied . In contrast , MONEY of all planning applications were granted during DATE . It is to be noted that , as a category , Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities . As such , virtually all Gypsy planning applications are highly contentious . Nonetheless , the fact remains that there is inadequate provision or availability of authorized halting sites ( private or public ) , which the high rate of denial of planning permission only exacerbates . Moreover , there are indications that the situation has deteriorated since DATE . \u2026 In face of these difficulties , the itinerant lifestyle which has typified the GPE is under threat . \u201d ( pp . CARDINAL )","NORP The report \u2019s recommendations included the following :","\u201c \u2026 in view of the extreme insecurity many GPE now experience in respect of housing , governments should endeavour to regularize the legal status of GPE who now live in circumstances of unsettled legality . \u201d ( pp . CARDINAL and CARDINAL )"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","6","8"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68394","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2005,"docname":"CASE OF JANKAUSKAS v. LITHUANIA","importance":3,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE . He lives in ORG .","The applicant , a former police investigator , was suspected of abuse of office and bribery . His detention on remand was ordered by ORG on DATE on the fear of his absconding and influencing witnesses . His remand in custody was thereafter prolonged .","On DATE the ORG convicted the applicant of abuse of office and bribery , sentencing him to DATE imprisonment . On DATE ORG upheld the lower judgment . On DATE ORG rejected the applicant \u2019s cassation appeal in the case . The sentence was subsequently reduced in view of an amnesty law . The applicant was released from prison after having completed the sentence on DATE .","According to the applicant , all his letters to and from the ORG authorities , non - governmental organisations as well private persons - namely his family , relatives , friends and legal counsel - were opened up and read in his absence while he was in the ORG remand prison during the period from CARDINAL DATE until DATE . The applicant states that a total of CARDINAL of his letters had been opened and read . The applicant has submitted a letter addressed to his lawyer by the ORG remand prison administration on DATE , attesting that during the period from DATE to DATE the applicant had sent letters to CARDINAL addressees , including the ORG authorities , NGOs , ORG , and various third persons . All of these letters were listed in detail by the prison administration , with reference to their date , addressee , and their number in the applicant \u2019s file .","Article CARDINAL of the LAW guarantees the right to respect for one \u2019s private life , family life and correspondence .","According to LAW , which were applicable at the material time , remanded ORG letters could be subject to censorship .","Rule CARDINAL of the Remand Prisons Internal Rules provides that the remand centre administration can not open letters of detainees addressed to ORG if those letters were given to the administration to be sent in a closed envelope .","Rule CARDINAL provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within DATE following receipt of the letter addressed to the detainee . Therefore , all letters received by the detainees are not given to them and are kept in their files by the remand centre administration ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103319","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2011,"docname":"CASE OF IGNATENCO v. MOLDOVA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was a security guard who was born in DATE and lived in GPE .","The applicant , together with PERSON and GPE ORG who have also lodged applications with the ORG , was involved in a series of complex commercial arrangements concerning the building of CARDINAL blocks of flats in GPE by a construction company ( \u201c the company \u201d ) .","On DATE GPE and GPE created the above - mentioned company with a capital of CARDINAL NORP lei ( MDL ) . Each of the parties was the holder of PERCENT of the company 's shares . On DATE PERSON sold PERCENT of her shares to GPE and on DATE PERCENT of her shares were sold to PERSON , a NORP national . The relevant documents were registered by ORG .","On DATE Mr PERSON , on behalf of GPE , brought an action against MONEY , seeking the exclusion of the latter from the company on the ground that FAC had not paid his part of the shares since DATE .","On DATE ORG upheld PERSON 's action and ordered the exclusion of GPE from the company . PERSON thus became the sole shareholder . On DATE the judgment became final and enforceable . The court issued an enforcement warrant and on the same date ORG registered the changes in the company 's statutory documents .","On DATE PERSON sold PERCENT of his shares to the applicant and PERCENT of his shares to ORG , who in turn sold them to CARDINAL other persons , who were represented by the applicant in these transactions .","On DATE ORG of ORG added MONEY ( ORG ) to the company 's capital . This corresponded to the value of the project documentation for the construction site which had been estimated at ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL in an audit report dated DATE .","DATE , on an unspecified date , GPE appealed against the judgment of DATE . He asked ORG to strike the case out of its list on the grounds that Mr PERSON did not have the powers to bring an action on behalf on GPE ORG examined the appeal despite the fact that the appealed decision was final , since it found that the merits of the case had been examined by ORG in GPE ' absence , who had not been legally summoned to that hearing . On CARDINAL DATE ORG dismissed the appeal and rejected the request to strike the case out of its list of cases . PERSON lodged an appeal on points of law .","On DATE ORG upheld the appeal on points of law . It quashed the judgment of ORG of DATE and ORG decision of CARDINAL DATE and ordered that the case be remitted to the first - instance court .","On DATE ORG joined PERSON 's action to a counter action filed by ORG and ORG , seeking the annulment of all documents which had led to his exclusion from the founding members of the company and for an acknowledgement of his sole ownership of the company 's shares .","By a final judgment of DATE ORG dismissed PERSON 's action and upheld in full the action lodged by ORG","Meanwhile , on DATE , ORG ordered the opening of a criminal investigation into the alleged forgery of the power of attorney whereby the applicant had represented the above - mentioned CARDINAL individuals ( see paragraph CARDINAL above ) . A criminal investigation was also opened in relation to the alleged smuggling of the project documentation for the construction site , since it had not been drafted in GPE and had to be registered with the customs when introduced into GPE . The investigation revealed that the project documentation had been brought into GPE by the applicant on DATE . It further appeared that the applicant had declared the value of the project documentation as being MDL CARDINAL whereas it had been estimated at ORG MONEY ( see paragraph CARDINAL above ) .","On DATE CARDINAL filed a criminal complaint with ORG about having been excluded from the founders of the company and about being illegally dispossessed of his shares .","On DATE , the GPE police office opened a criminal investigation against Mr PERSON into the alleged misappropriation of ORG 's assets .","On DATE an officer of ORG ( \u201c NORP \u201d ) ordered the opening of a criminal investigation into the allegations made by GPE The CFECC only relied on GPE 's allegations that following the judgment of ORG of DATE S.F. had been excluded from the founders of the company and that PERSON had subsequently sold the company 's shares to third parties , including the applicant .","On DATE both criminal investigations instituted against Mr PERSON were joined .","On DATE the criminal investigation started by ORG office on DATE into the acts of smuggling and forgery was joined to the criminal investigation started by the ORG on DATE .","On DATE all the above - mentioned criminal investigations were joined in a single criminal investigation .","On DATE an expert report commissioned by the ORG concluded that it could not firmly establish whether the power of attorney whereby the applicant had represented the above - mentioned CARDINAL individuals ( see paragraph CARDINAL above ) had properly been signed by the director of the company or whether the signature had been forged .","On DATE an investigating judge of ORG granted the ORG 's application for a search warrant to search the applicant 's domicile in GPE . The search was conducted on DATE .","On DATE , at TIME , the applicant was arrested and placed in the remand centre of the ORG .","On DATE , at TIME , the prosecutor applied to ORG for an arrest warrant for the applicant . The application recorded that the applicant lived in PERSON . It further noted that on DATE PERSON had asked ORG urgently to enforce the judgment of DATE , i.e. as soon as it had become final and enforceable . This request had been made without notice to QUANTITY and , in the prosecutor 's view , in order to erase all evidence of an offence . Relying on \u201c investigative information \u201d ( m\u0103suri operativ - investigative ) that the applicant , together with PERSON and Mr PERSON , had executed the orders of Mr GPE against GPE , the prosecutor alleged that the applicant had committed the offence of misappropriation of another 's property . The prosecutor 's application did not refer to any other evidence in support of a reasonable suspicion that the applicant had committed the offence . Nor did it refer to any reasons for his detention or that he might abscond or put pressure on witnesses .","Later on DATE , at TIME , the applicant 's lawyer lodged an application for the applicant 's release on the ground that the period of his detention had ended at TIME that day .","At TIME , however , an investigating judge of ORG ordered the applicant 's remand for DATE . The judge gave the following reasons for the applicant 's detention :","\u201c [ the court ] takes into consideration the character and the degree of the alleged offence ... its seriousness , the necessity to protect public order , the sense of shock which may be caused to society by the applicant 's release , ... the existence of a danger of absconding from law enforcement authorities , the risk of influencing the outcome of the investigation and collusion between the accused and the creation of exculpatory evidence , which result from the nature of the offence ... and the personality of the accused and his conduct during the criminal proceedings .","... the court dismisses the argument that the applicant had to be released after TIME ... because the delay in the opening of the hearing was due to the examination of other remand warrants and the delay in examining the prosecutor 's request was due to the courts ' efforts to observe the procedural rights of the defence party .","... at this stage , the court considers that the relevance of the prosecution 's reasoning has priority and will contribute to the normal conduct of the criminal proceedings .","...","The court orders the prosecutor to ensure ... the applicant 's proper medical care . \u201d","The applicant appealed on DATE . The applicant did not , however , complain in his written submissions about the delay in releasing him on DATE .","On DATE the police informed the ORG that the applicant had not been living at his given address in GPE for DATE .","On DATE , at TIME , the applicant was officially indicted on charges of misappropriation of another 's property and forgery . The indictment stated that ORG 's PERCENT shares in the company were worth MDL CARDINAL ( EUR CARDINAL ) on DATE .","On DATE , at TIME , ORG examined the appeal against the decision of CARDINAL DATE and dismissed the applicant 's appeal . It did not consider the applicant 's arguments about the lack of a reasonable suspicion against him or deal with other submissions in favour of release . However , the court endorsed the reasons given by the investigating judge of ORG for remanding the applicant in custody and stated that he could abscond through the uncontrolled territory of GPE .","Still on DATE , at TIME , the prosecutor applied to ORG for an extension of the applicant 's detention for DATE . The grounds for the extension were similar to those relied upon in the initial application for a remand warrant . It further stated that the identity of all the persons who could have been aware of the offence were unknown . An investigating judge of ORG ordered the extension of the applicant 's detention for DATE for the reasons given by the prosecution later on DATE . Relying on LAW of LAW ( \u201c the ORG \u201d ) the judge further stated that in exceptional circumstances , depending on the complexity of the case , the severity of the offence and the risk of the applicant 's absconding , the detention could be prolonged . He further noted that the criminal investigation was still ongoing and that several other measures had to be taken in order to complete it . The judge however did not consider any of the arguments put forward by CARDINAL of the applicant 's lawyers that the applicant 's wife was DATE pregnant , that he would not abscond and that he did not intend to influence witnesses . The applicant appealed .","On DATE ORG rejected the appeal lodged against the decision of DATE and found that the investigating judge of ORG had observed the correct procedure . It did not adduce any new reasons for the applicant 's detention .","On DATE the applicant 's lawyer made a fresh habeas corpus application , submitting that there was no reason for the applicant 's further detention on remand . He stated that there was no risk of collusion between the accused or of influencing witnesses , since the criminal proceedings had been instituted on DATE and during that period the prosecution had done enough to obtain evidence .","On DATE the prosecutor filed a new application with ORG for the prolongation of the applicant 's detention for DATE . The prosecutor also relied on the risk that the applicant would forge identity papers and documents in order to hinder the investigation and that the identity of all the persons who could have been aware of the offence was unknown .","On DATE an investigating judge of ORG upheld the prosecutor 's request and relying on LAW of the ORG prolonged the applicant 's detention for DATE . The investigating judge endorsed the reasons given by the prosecutor in favour of the applicant 's further detention . As to the habeas corpus application , the investigating judge found that the reasons put forward by the prosecution for extending the applicant 's detention outweighed the reasons put forward by the defence . Again , the applicant 's lawyer 's argument that his wife was pregnant and that therefore he was unlikely to abscond was ignored . Similarly , the investigating judge did not heed the argument that the applicant was willing to give up his passport as an assurance that he would not leave the country . The applicant appealed .","On DATE ORG dismissed the appeal without adducing any new reasons . It noted however that the identity of the persons who could have been aware of the offence were unknown .","On DATE an investigating judge of ORG upheld a new request of the prosecution for a prolongation of the applicant 's detention and ordered a further DATE detention . In particular , the investigating judge dismissed the argument that the applicant 's wife was pregnant on the ground that she was on maternity leave and that there was no evidence that she required any assistance or medical treatment . The applicant appealed , invoking again his wife 's poor health . On DATE ORG dismissed the appeal . Neither the prosecution nor the courts adduced new reasons for the applicant 's further detention .","On DATE the investigation ended and the criminal file was referred to ORG .","On CARDINAL DATE the prosecutor applied for a further extension of the applicant 's detention for DATE on the ground that the applicant would hinder the proceedings before the court and would commit other offences .","On DATE , at TIME , ORG upheld the prosecutor 's request in full without relying on any new reasons for the applicant 's further detention . It did not examine the applicant 's contention that the prosecutor had failed to submit any evidence to substantiate his request .","The applicant appealed and argued that the decision had been issued at TIME , after the expiry of the previous remand warrant at TIME Relying on NORP v. GPE ( no . CARDINAL ) , \u015earban v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL ) he argued that the domestic courts had failed to provide relevant and sufficient reasons for his detention .","On DATE the applicant 's lawyer was given the annex with the prosecution 's list of evidence . It included , inter alia , addresses of witnesses , copies of documents related to the company and the construction site , verbatim records of the examination of compact discs with recordings of telephone conversations of ORG with other co - accused and minutes of searches .","On DATE ORG dismissed the appeal . Besides the reasons outlined in the prosecutor 's request , the court stated that although a search had been conducted of the applicant 's domicile , there was no proof that he had been permanently residing there . The applicant 's application for release was considered as an attempt to influence the investigation . As to the applicant 's detention after TIME on CARDINAL DATE , the court found that he had been lawfully detained , since the hearing had been opened at TIME DATE . Finally , the court stated :","\u201c Moreover , [ the applicant 's ] intention to undermine the normal conduct of the proceedings ... is highlighted by the fact that constant reference is made to cases examined by ORG , and which are not related to the present case . Those cases are totally different from the present case and therefore the declarations are designed to indirectly influence the courts to release the applicant . \u201d","On DATE the applicant 's lawyer made a fresh habeas corpus request , submitting that there was no reason for his further detention on remand . On the same date ORG dismissed it without providing any relevant reasons .","On DATE , ORG ordered an official medical examination of the state of health of Mr GPE , who was CARDINAL of the applicant 's co - accused in the criminal proceedings . The court also suspended the criminal proceedings pending the medical examination and the delivery of a report .","On DATE , without resuming the suspended proceedings , ORG upheld a fresh request of the prosecution for a prolongation of the applicant 's detention and ordered a further DATE detention . It also dismissed a new habeas corpus request made by the applicant . On DATE ORG dismissed the appeal . Neither the prosecutor nor the courts adduced new reasons for the applicant 's further detention .","DATE . On DATE ORG resumed the criminal proceedings which had been suspended on DATE and the prosecutor requested a further prolongation of detention for DATE .","On DATE , ORG ordered the extension of the applicant 's detention for DATE . The applicant appealed .","On DATE , ORG quashed the extension order . In particular , ORG stated that the applicant had his permanent residence in PERSON , that there was no risk that he would abscond or that he would undermine the conduct of the criminal proceedings by influencing witnesses . However , ORG prohibited the applicant from leaving the city for DATE .","On DATE ORG granted the prosecutor 's request that CARDINAL of applicant 's co - accused be examined by a doctor . Accordingly , the criminal proceedings were suspended .","The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) and ORG v. GPE ( no . CARDINAL , \u00a7 CARDINAL , DATE ) .","In addition , the relevant provisions of LAW ( ' the CPP ' ) read as follows :","\u201c ( CARDINAL ) A person may be arrested and taken into police custody for a short period of time not exceeding CARDINAL TIME and under the conditions established by law .","( CARDINAL ) The following persons may be arrested and taken into police custody :","a ) persons suspected of having committed a criminal offence punishable by a sentence of imprisonment of DATE ... \u201d","\u201c ( CARDINAL ) The criminal investigation body shall be entitled to arrest and take into custody a person suspected of having committed a crime for which the law prescribes a punishment of deprivation of liberty of DATE , only in the following cases :","CARDINAL ) when he or she has been caught in the act ;","CARDINAL ) NORP if the eye witness , including the injured party , indicates that the person has committed the crime ;","CARDINAL ) NORP if obvious traces of the crime are discovered on his body or clothes , or in his home or vehicle ;","( CARDINAL ) NORP If a person is suspected of having committed a crime in other circumstances , the person can be arrested and taken into custody only if he or she tried to abscond ; or if he or she does not have a permanent residence ; or if his or her identity could not be established .","...","( CARDINAL ) The arrest and detention in police custody of a person in accordance with the present article shall not exceed TIME from the moment of his deprivation of liberty .","...","( CARDINAL ) A person who has been detained under this article shall be brought promptly , and before the expiry of the CARDINAL-hour period , before the investigating judge , who will decide whether he or she should be remanded in custody or , if appropriate , whether he or she should be released . The application for pre - trial detention of such a person must be lodged by the prosecution TIME before the expiry of the CARDINAL-hour detention period . \u201d","\u201c ( CARDINAL ) A person who has been arrested and detained in police custody shall be released in the following circumstances :","CARDINAL ) NORP the suspicion that the person has committed a crime is not confirmed ;","CARDINAL ) NORP there are no grounds for his or her continued deprivation of liberty ;","CARDINAL ) NORP the criminal investigation body establishes that the person was arrested and detained in police custody in flagrant breach of the law ;","CARDINAL ) NORP the FAC detention period has expired ;","CARDINAL ) the CARDINAL detention period has expired and the court has not authorised the person 's arrest ... \u201d","\u201c ...","( CARDINAL ) NORP criminal investigation action shall not be allowed after the suspension of the criminal investigation . \u201d","\u201c ...","( CARDINAL ) The application for pre - trial detention or house arrest shall be examined without delay by the investigating judge in a closed hearing with the participation of the representative of the criminal prosecution , counsel for the defence and the suspect . In presenting his application in court , the representative of the criminal prosecution shall ensure the participation of the suspect at the court hearing ; he shall notify counsel for the defence and the suspect 's legal representative of the hearing . If defence counsel so notified does not appear at the hearing , the investigating judge shall ensure that an ex officio counsel is appointed to defend the interests of the suspect ... \u201d","\u201c ( CARDINAL ) The court shall suspend the proceedings if an accused suffers a serious illness which prevents his participation at the hearing . The court shall issue a decision to suspend or to resume the proceedings .","( CARDINAL ) If there are several co - accused and CARDINAL of them is seriously ill , the court shall suspend the proceedings only in respect of the latter , but will continue the proceedings in respect of the others . The lawyer of the accused , in respect of whom the proceedings have been suspended , shall attend with his clients the proceedings in respect of the other co - accused , if the offence had been committed by participation . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4916","languageisocode":"ENG","respondent":"ITA","branch":"ADMISSIBILITY","date":1999,"docname":"CANEPA v. ITALY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is an NORP national , born in DATE and currently residing in GPE ( Genoa ) .","In DATE the applicant married PERSON children , X and Y , were born in wedlock in DATE and DATE .","In DATE the applicant left the marital house and started living with a certain PERSON The applicant alleges that , since then , he made substantial efforts to maintain regular contacts with X and Y. However , he had to face \u201c the aggressive behaviour of his wife \u201d , who allegedly tried to \u201c destroy [ his ] reputation and his relationship with his own children . \u201d","The first claim before ORG","On DATE the applicant requested ORG ( \u201c tribunale dei minorenni \u201d ) to grant him the care and custody over his children . He observed that from DATE he was de facto separated from his wife and that the latter had a negative influence on X and Y.","In an order of DATE , ORG provisionally granted PERSON the custody of the children . The court also decided that the applicant should have access to X and DATE and DATE .","The judicial separation proceedings and the proceedings before ORG","On DATE PERSON filed a claim for judicial separation with ORG .","In an order of CARDINAL DATE , the President of ORG confirmed the committal to PERSON of the children 's care and custody and the applicant 's right of access . He ordered , however , that X and Y should not stay overnight at the applicant 's place when PERSON was present .","On DATE the applicant and PERSON had a daughter , PERSON","On DATE the Genoa investigating judge appointed an expert , the psychologist and psychotherapist PERSON , and charged him to analyse the relationship between X , Y and their parents and the behaviour of the applicant and PERSON with regard to their children .","On DATE L. informed the investigating judge that the applicant had refused to consign Y to his mother 's care . In an order of DATE , the investigating judge decided to suspend the applicant 's access to X and Y. This decision was adopted pursuant LAW , according to which where the conduct of the parents is detrimental to the child , the judicial authorities may take any decision that is appropriate . Such decisions may be revoked at any stage of the proceedings .","On DATE a bailiff tried to apprehend Y at the applicant 's place . However , notwithstanding the assistance of CARDINAL carabinieri , this attempt failed since the child refused to join his mother .","On DATE the applicant presented to the investigating judge a report prepared by an expert of his own choosing . The report indicated that Y had shown a spontaneous desire to live with his father and that frustrating his will would have been detrimental for the child 's psychological stability .","On DATE L. filed his final report with ORG registry . On the basis of the interviews he had had with the applicant , X , Y , PERSON and PERSON , PERSON concluded that the applicant and PERSON were trying to use Y in order to sustain their animosity against PERSON , who , on the other hand , had shown greater maturity and educational capacity .","In an order issued on DATE , the Genoa investigating judge confirmed the suspension of the applicant 's access to NORP and Y and ordered the case - file to be forwarded to ORG .","On DATE the investigating judge ordered that Y be consigned to his mother 's care , if need be , with the police 's assistance .","On DATE the applicant appealed against this order . In a decision of CARDINAL DATE , filed with the registry on DATE , ORG declared the applicant 's claim inadmissible , no appeal being available against an execution order .","On DATE PERSON , assisted by a bailiff and by the carabinieri , tried to apprehend Y at his primary school . This attempt failed as a consequence of the child 's refusal to join his mother and of the intervention of the applicant and PERSON With regard to this episode , the applicant alleged that the carabinieri physically injured Y , who was moreover psychologically humiliated before his schoolmates . However , none of these circumstances is mentioned in the bailiff 's written record .","In an order of DATE , ORG declared that PERSON should abstain from bringing Z in the neighbourhood of ORG 's primary school . It observed that according to the information at its disposal , Z , who was at that time DATE , had been waiting for prolonged periods in a car parked outside the school . Such a situation , which had occurred even on cold DATE , could be regarded as being detrimental to the interests of the little girl . This order was eventually revoked on DATE . According to the applicant , ORG moreover threatened him and PERSON of limiting their parental authority over PERSON","In an order of DATE , filed with the registry on DATE , ORG , acting in accordance with LAW and observing that the applicant had refused to consign Y to his mother 's care and to attend the meetings scheduled by the Genoa social services , ordered that the applicant 's parental authority be suspended , that the care over Y be provisionally committed to ORG and that the child be transferred to a public care institution . In execution of his order , on DATE Y was apprehended by CARDINAL policemen in front of his primary school and placed in the public care institution PERSON , which was allegedly kept secret to the applicant . On DATE the President of ORG gave the applicant a letter from Y , which had been partly censored by the authorities in order to prevent the reader from finding out the place where it had been written .","On DATE the applicant lodged an appeal against the order of DATE . In an order of DATE , filed with the registry on DATE , ORG confirmed the suspension of the applicant 's parental authority . It annulled the remainder of the impugned decision , observing that pending the separation proceedings ORG was not competent to decide issues other than those related to the above mentioned suspension .","In the meanwhile , in a decision of DATE , ORG had ordered that Y be committed to his mother , his continuos stay in a public care institution being detrimental for him . On DATE Y started living with his mother 's family .","In a judgment of DATE , filed with the registry on DATE , ORG declared that the applicant was responsible for the spouses ' separation and fixed at MONEY the DATE sum that he should pay to PERSON ORG also granted PERSON custody of the children , confirmed the suspension of the applicant 's access and charged ORG to supervise a gradual and possible renewal of the contacts between X , Y and their father .","On DATE the applicant appealed against this judgment . On DATE the President of ORG fixed the date of the hearing at DATE . On that occasion the applicant declared that he did not intend to pursue his claim . In an order of DATE , filed with the registry on DATE , ORG declared the applicant 's appeal inadmissible . As a consequence , the judgment of DATE became final . The applicant indicated that the decision to withdraw his appeal was due to the little confidence he had in the LOC magistrates .","In the meanwhile , in an order of DATE , ORG had granted the applicant access to Y once DATE . All the meetings took place in a public care institute where an educator ( \u201c educatore \u201d ) was always present .","The applicant alleged that , notwithstanding ORG decision , on DATE an educator named PERSON decided to suspend the meetings at issue . From that date , the applicant had no further contacts with Y. In a note of DATE , PERSON informed ORG that the social services had tried on several occasions to get in touch with the applicant - who could not be found - and had eventually recorded a message on his answering machine , without any result .","On DATE the applicant requested ORG to reduce the amount of the DATE sum due to PERSON and to grant him custody over Y and access to his children . In an order of DATE , filed with the registry on DATE , ORG , observing that the applicant was not represented by a lawyer as prescribed by NORP law , declared this claim inadmissible .","According to the applicant , ORG and its attached ORG refused to take into consideration a number of claims he had personally introduced seeking the annulment of the suspension of his parental authority and the adoption of a number urgent measures in the interests of his children .","The divorce proceedings","On DATE the applicant introduced a claim for divorce before ORG . The date of the hearing was fixed at CARDINAL DATE . The proceedings were subsequently adjourned to DATE , on which date the President of ORG placed himself at the disposal of the parties with a view of securing a friendly settlement of the matter . Considering that there was no basis for such a settlement , the President adjourned the case until DATE .","The other claims introduced by the applicant","In DATE and DATE , the applicant had introduced a number of claims , requesting that criminal proceedings be instituted against PERSON , the magistrates of ORG , a lawyer of his own choosing , PERSON father and the educator PERSON of these claims had any substantial result . In particular , on DATE the Genoa investigating judge decided not to commence proceedings against F. on the basis of the applicant 's allegations ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58797","languageisocode":"ENG","respondent":"NOR","branch":"CHAMBER","date":2000,"docname":"CASE OF BERGENS TIDENDE AND OTHERS v. NORWAY","importance":1,"conclusion":"Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings","judges":"Nicolas Bratza","text":["The first applicant , PERSON , is a DATE newspaper published in GPE and is the largest regional newspaper of the NORP west coast . The second applicant , Mr PERSON , is its former editorinchief and the third applicant , PERSON , is a journalist employed by the newspaper . They were born in DATE and DATE respectively and both live in GPE .","Dr NORP is a specialist in cosmetic surgery and received his training at ORG in GPE in DATE . As from DATE he worked in this field from his privately owned practice in GPE .","On DATE , following the opening of a new clinic by PERSON , PERSON published an article , prepared by the third applicant , which described PERSON work and the advantages of cosmetic surgery .","Subsequently , the newspaper was contacted by a number of women who had undergone such operations by PERSON and who were dissatisfied with the treatment received .","NORP On DATE , PERSON published on its front page a text entitled \u201c Beautification resulted in disfigurement \u201d , which included the following passage :","\u201c ' We paid CARDINAL of [ NORP ] kroner [ ORG ] and the only thing we 've achieved is to be disfigured and ruined for life . ' PERSON has spoken with CARDINAL women who have an almost identical story to tell about their experiences at a cosmetic surgery clinic in GPE . All CARDINAL underwent breast surgery at the clinic , and the results were extremely bad . They are warning other women . \u201d","The caption under a photograph of a woman 's bust read :","\u201c This woman was tormented by her large breasts . Surgery resulted in disfiguring scars and a disproportionate bust . \u201d","The inside of the paper contained , together with a large colour photograph showing a woman 's breasts with disfiguring scars , the following article :","\u201c Women ruined for life after ' cosmetic surgery '","' I paid ORG CARDINAL,CARDINAL and all I achieved was disfigurement . '","' To say that I bitterly regret it is an understatement . I 've been ruined for life and I 'll never be \u201c my old self \u201d again . '","' The pain was unbearable . I was transformed into an anxious , trembling nervous wreck in the course of DATE , and I thought I was going to die . '","These are the statements of CARDINAL different women interviewed by PERSON . All of them , aged DATE and resident in GPE , share in common the fact that they have undergone cosmetic breast surgery , performed by PERSON , CARDINAL of CARDINAL specialists in plastic surgery with a private practice in GPE .","The CARDINAL women \u2013 who wish to remain anonymous \u2013 describe their ordeal as nightmarish . They all have internal and external scarring which they will have to live with for the rest of their lives .","' I was operated on in DATE , following DATE of great psychological problems due to a small and sagging bust after I had had several children ' , said CARDINAL of the women , who is DATE .","Swollen bust","' Immediately after the operation , I noticed there was something quite wrong . One of my breasts had swollen up and become hard and painful . When I consulted PERSON , he trivialised the whole matter , saying that it was nothing to worry about . It would pass . And I was told that under no circumstances should I contact another doctor .","For DATE I lay at home in a dazed state of pain , swallowing ORG tablets as though they were sweets . I have never in my life taken anything stronger than PERSON on the odd occasion . My bust swelled to grotesque proportions and was so sore that the slightest touch was unbearable .","It was impossible to get hold of PERSON He had gone to GPE , and I did n't dare contact another doctor . It 's only now that I realise how foolish I was . '","Squirting prosthesis","The doctor 's receptionist finally managed to get in touch with PERSON on the telephone in GPE , explained the gravity of the situation and made him travel directly from the airport to his office the night he returned home .","' By this stage the pain was unbearable , and both then and later on I reacted strongly to the hard - handed treatment I was subjected to ' , says the woman . ' As I lay on the operating table , he ripped open the stitches and tore out the implant without any form of anaesthetic , so the contents of the prosthesis squirted over him , his assistant and myself . '","The woman 's husband sat in the waiting - room , listening to her cries of pain . The whole treatment took TIME , and there was no talk of a rest afterwards . It was just a case of getting up from the operating table and walking out .","DATE","' He gave us the feeling the whole time that we were an inconvenience and were taking up his precious time . '","It took a long while for the woman to recover from her traumatic experience . She had to report sick and was away from work for DATE . Her husband , too , was obliged to apply for leave from his job to stay at home with her for a period of time .","During this time she had a prosthesis in CARDINAL breast , and despite the daunting experiences she had been through , she contacted PERSON again to have a silicon implant inserted in the empty breast . This was repeatedly postponed , and she finally decided to terminate her relationship as a client of PERSON and contact another plastic surgeon . In doing so , she demanded her money back for the unsuccessful operation , and after some discussion he agreed to reimburse CARDINAL of the costs .","No receipt","He did so with the following comment : ' I hope now that we are finished with one another for good . You have never been a patient here , and I have never seen you . '","Since then the woman has also reacted to the financial side of PERSON activities . She had been informed beforehand that she would have to present the money \u2013 ORG DATE in cash , on DATE of the operation . Even a cheque would be unacceptable , and she was not given a receipt .","Painful infection","A CARDINAL-year - old woman tells a similar story .","' I wanted an operation because I have great problems with a disproportionately large , heavy bust that has caused shoulder and back pains . I checked first to see whether it was possible to get this type of operation done at the hospital , but was told that at best it would mean waiting DATE . I therefore ended up at PERSON .","The result was DATE of continuous , painful infection and a bust that looked much uglier than it had done earlier .","I paid ORG CARDINAL,CARDINAL and the only thing I achieved was to do damage to myself ' , says the woman .","Disfiguring scars","The infection that occurred immediately after the operation caused the stitches to open , and septic sores developed . Once the wounds had healed , she was left with abnormally large , disfiguring scars , which prompted her to contact PERSON again and ask for the damage to be repaired .","He agreed to do so , and a new operation was scheduled . The woman , who had asked for DATE off work in connection with the surgery , arrived at the agreed time but found the doors to the clinic locked . She returned home with the matter unresolved . When she called him privately DATE he was impertinent and threatened her directly , and the conversation ended with him slamming down the receiver , the woman said .","After this she gave up and she has not had any contact with the doctor since .","Waste","' But it was a bitter feeling when I realised that I had invested a lot of time , money and mental energy in something that turned out to be not only a complete waste , but also did more harm than good . '","This woman , too , says that she was asked to pay cash and was not given any form of receipt .","Deformed","The third woman interviewed by PERSON had a similar experience . The woman , DATE , says : ' I had a breast augmentation done and DATE after the operation I discovered that something was wrong with one of my breasts . It was uneven , pointed to the right , and was rock - hard and sore . It 's still hard and uneven DATE . I feel completely deformed , and I dare not even think of showing myself on a beach , for example . '","Complications","This woman , too , experienced complications after surgery , chiefly in the form of constantly recurring so - called ' capsules ' , i.e. part of the prosthesis hardened and had to be broken up again .","' After DATE I just could n't take any more . By then I had lost confidence in Dr NORP and his methods of treatment ' , says the woman , who , like the CARDINAL other women , reacted to his demand that she pay cash without being given a receipt .","She is also deeply shocked about what she feels is the offhand and nonchalant way in which she was treated on her first visit to the doctor 's .","' I had an appointment at TIME , but was told that he did n't have time to see me . Would I rather come back another day ? But I was so mentally prepared that it would be done DATE and I simply refused to go . It was now or never . '","Bitter regrets","' After TIME wait I finally lay on the operating table , and if there is anything I now regret , then it 's precisely that .","The operation was unsuccessful , I understood that immediately . After DATE of repeated \u201c treatment \u201d and CARDINAL - hearted attempts by the doctor to remedy the blunder , however , I could n't stand it any more and I gave up . '","Unbearable","The woman has made no effort to get back the money she paid . ' I could n't bear the thought of fighting \u2013 because I knew it would be a struggle . '","DATE have passed since the calamitous surgery , but she has not yet been able to collect herself sufficiently after the frightening experience and contact another doctor to have her breasts operated on again .","' I have to do it \u2013 because I ca n't live with this . However , the bad experiences are so ingrained that I have n't collected myself enough to do anything about it ' , she says . \u201d","Articles similar to the CARDINAL of CARDINAL DATE quoted above , accompanied by large colour photographs , were published on CARDINAL , DATE , DATE and CARDINAL DATE , describing in detail how women had experienced their situation after allegedly failed operations and a lack of care and follow - up by PERSON Some of the articles invited women to complain to the health authorities and to institute proceedings against the doctor . CARDINAL article stated that ORG ( PERSON ) would commence an investigation , that PERSON might lose his licence to practise and that the question of a police investigation had been raised . Brief summaries of the contents of the articles may be found in the judgment of DATE of ORG ( PERSON ) quoted in paragraph CARDINAL below .","In an editorial of CARDINAL DATE , entitled \u201c Medical power \u201d , PERSON stated :","\u201c It is of course with satisfaction that we see health authorities now carry out a thorough investigation of the activities which the GPE breast doctor has been performing for DATE . This is the least that one could expect . It must be in the interest of DATE the patient 's , the authorities ' and also the doctor 's DATE to have clarified whether the methods of treatment applied meet professional standards . The fact that the case has serious implications also because it has aesthetic , moral , but also basically down - to - earth economic consequences , serves to underline the need for a thorough investigation .","It is nevertheless a puzzle that it took a whole series of newspaper articles , powerful notices and assertive journalism to make the medical health bureaucracy react . Complaints to the doctors ' own professional association have not produced results and neither the regional nor the municipal health authorities have taken any initiative before the patients , in despair , came out with their stories of suffering to PERSON . Again one wonders what is required in order to break down the strong professional ties within the medical profession and to preserve the interests of patients . In any event , it justifies the reflection that patients , over DATE , feel threatened by fear of ' reprisals ' . Irrespective of whether this fear is imaginary or real , it is telling of the relationship of power which still exists between doctors and patients .","Breaking down the myths and building confidence are crucial conditions for the process of healing . Therefore it is important to have a full clarification of the case in all its dimensions .","Unfortunately the initiative for this investigation does not originate from the medical milieu , but from the weakest party : the patient . \u201d","On DATE PERSON had also produced , at the bottom of the page containing the impugned article mentioned in paragraph CARDINAL above , an article containing an interview with PERSON , plastic surgeon at a GPE hospital , entitled \u201c Demanding form of surgery \u2013 Small margins between success and failure \u201d . It stated :","\u201c ' There are borderline cases , but generally speaking aesthetic \/ psychological surgery , what is commonly referred to as \u201c cosmetic surgery \u201d , does not fall within the public health - care authorities ' responsibility . ' ...","\u2013 ' Do many have unrealistic expectations and believe that all their problems will be solved if their imperfections are straightened out ? '","' It happens and then their problems are more on the psychological than the physical level . '","Information is important","' Not least for this reason it is important that the patients DATE or the clients ... rather \u2013 are properly informed in advance . Frequently , information must be provided in order to reduce the expectations DATE so that the person concerned does not feel disappointed with the result . But having said this , most people are satisfied with their new appearance ...","You have the same problems , primarily with respect to the dangers of bleeding and infection , in this field as in any other field of surgery , and the general requirements as to precautionary measures and medical safety are as strict . '","Technically demanding","' Aesthetic surgery can be technically demanding and there are often small margins between success and failure . Not least for this reason it is important to possess wide experience of plastic surgery from ordinary hospitals before one starts one 's own private business as a specialist . But the transfer of experience may be occurring in both directions . ' ... \u201d","The issue of CARDINAL DATE also contained an interview with PERSON \u201c There will always be dissatisfied patients \u201d , which read :","\u201c ' I can not comment on these particular cases , in part because I am bound by the general obligation of confidentiality , in part because I do not know the details of the cases . All I can say is that within plastic surgery , like in any other field of surgery , there is a certain margin of error and there will always be dissatisfied patients . '","It is PERSON who states this to PERSON in his comments to the complaints from the QUANTITY women .","' Complications in the form of hardened breasts ... occur in PERCENT of all breast operations and the risks of bleeding and infection are the same in plastic surgery as in any other form of operation . But I should like to emphasise that all patients are informed in advance of the possible dangers and of the fact that the result of the operation is not always as successful as one might expect ' , says PERSON , who moreover underlines that CARDINAL dissatisfied patients is a relatively small number when compared to the great size of his business which he has been running over DATE ... \u201d","According to the third applicant 's statement to ORG in the proceedings mentioned below , when approaching PERSON in connection with the above interview , she had invited him to comment on the QUANTITY women 's allegations and had informed him that they had given their consent to release him from his duty of confidentiality . He had replied that he was bound by his general duty of medical confidentiality , which applied irrespective of whether the patient had given such consent . PERSON , in those proceedings , denied the third applicant 's version of the facts , stating that he was absolutely sure that she had not informed him that the patients had lifted his duty of secrecy .","On DATE PERSON published CARDINAL articles commenting on the critical articles published DATE .","In the first article , entitled \u201c The press \u2013 the pillory of DATE \u201d , PERSON recalled the history of witch - hunts during DATE and described PERSON coverage of the accounts by PERSON dissatisfied patients as a modern form of witch - hunt conducted by the press . She stated that the doctor was unable to reply ; being prevented by his duty of secrecy he could not refer to the large group of patients who were satisfied and could not substantiate that they constituted the vast majority of patients .","The second article , written by ORG and entitled \u201c There are always CARDINAL sides to a case \u201d , stated :","\u201c We are concerned with the recent focusing on PERSON business . We are a group of QUANTITY persons who all have in common that we are or have been patients of PERSON We are satisfied with the treatment received , not least the service and care provided during post - surgery treatment and follow - up .","A case always has CARDINAL sides and by these words we hope that we have conveyed our views on and experiences of this doctor . \u201d","Following the publication of the articles by PERSON , CARDINAL former patients submitted complaints against PERSON to the health authorities . On DATE Mr Eskeland , the medical expert appointed to evaluate the situation , concluded that there was no reason to criticise Dr NORP 's surgical treatment of the patients . Mr PERSON stated that the complications complained of were common in surgery and were bound to occur from time to time , but were not due to shortcomings in PERSON surgery . In CARDINAL case , he criticised PERSON for having travelled abroad without informing a relatively newly operated patient . Mr PERSON observed that , in the light of the large number of patients treated by PERSON CARDINAL DATE the number of complaints had been moderate . Bearing in mind that the articles published by PERSON had invited PERSON former patients to complain , it was surprising that not more patients had done so .","On DATE ORG decided not to take any further action , finding that PERSON had not performed improper surgery .","After the publication of the newspaper articles , PERSON received fewer patients and experienced financial difficulties . He had to close down his business in DATE .","In the meantime , on CARDINAL DATE , PERSON instituted defamation proceedings against the applicants , claiming damages . By judgment of CARDINAL DATE ORG ordered the applicants to pay PERSON a total of ORG CARDINAL,CARDINAL,CARDINAL in respect of pecuniary and non - pecuniary damages and costs . The court considered that PERSON economic loss would amount to MONEY and that an assessment had to be made on a discretionary basis . It observed that , while the criticism against PERSON had been made in an unjustified manner , destroying the public 's confidence in him as a surgeon , the criticism had been caused mainly by his own conduct . The court deemed it appropriate to make an award corresponding to PERCENT less than the amounts claimed .","The applicants and PERSON appealed against the judgment to ORG ( lagmannsrett ) , which found for the applicants , stating , inter alia :","\u201c After hearing the evidence , the High Court finds that the articles give an essentially correct rendering of the women 's experiences as they themselves lived through them . As witnesses , they gave the impression to some extent that the newspapers had moderated their accounts . The High Court finds them credible and finds no reason to believe that their subjective experiences are not commensurate with what objectively took place \u2013 in other words they had reasonable grounds for feeling the way they did and as described by the newspaper . ORG does not exclusively base itself on these CARDINAL women 's statements . It finds it also proven that the newspaper was contacted by a number of other women giving similar stories . Subsequently , after the article of DATE ] had been published together with an appeal by GPE to women to join in filing an action , many more women got in touch . ORG finds it established that the number of women [ who did so ] was CARDINAL . This is based mainly on statements taken from [ the second and third applicants ] and GPE , and some of these women have also appeared as witnesses before ORG and have given statements . These constitute only a minor part of all the women who contacted PERSON and GPE A total of CARDINAL dissatisfied women have given statements , as has the husband of CARDINAL woman . However , it is largely the same story that is repeated again and again in the statements : complications did occur or the result was bad and the follow - up treatment provided by PERSON was felt to be unsatisfactory and seemed rushed with little interest , some irritation and unwillingness . Several women told how PERSON seemed insensitive to their mental as well as physical pain and discomfort . Some had the feeling that PERSON would rather be finished with them after he had operated and had not organised post - operative treatment properly . Some of the women were worried that PERSON might not have given them proper post - operative treatment . What is also being repeated by many of the women is that they were struck by the fact that PERSON was keen when it came to the financial side ; he wanted payment in advance , was unwilling to take cheques , and gave no receipt unless especially asked to do so ...","On the basis of the above the High Court finds it proven that PERSON ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given , and in several instances had reason to feel offended by PERSON behaviour . Moreover , the High Court finds that the experiences described in the article of DATE ] are representative of those made by many other women .","Thus the High Court finds that the QUANTITY women referred to in the article of QUANTITY May [ DATE ] had not been especially sensitive and had not had exaggerated expectations , but that their stories were sober and reasonably subjective accounts of what had happened . Having regard to the information at hand about complaints made by other women , ORG also finds that this is not simply a case of CARDINAL or CARDINAL odd exceptions . As far as PERSON is concerned , it can reasonably be established that it is a question of unsatisfactory behaviour , which occurred quite often in the cases where something happened to necessitate an extra effort after the operations . That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them . It is hardly a question of more than a minority of the cases . And it must be stressed that nothing has been said to prove that there really was a failure as regards NORP 's surgical competence .","But the fact that the unsatisfactory behaviour occurred in a number of cases must provide a basis for allowing criticism of PERSON to come to light in the newspaper . Reference is made to what has been said above about the right of the general public and the consumer to be kept informed and their right to react by staying away to be on the safe side . It should be pointed out that the people who contacted the newspaper at the outset did so as a reaction to PERSON article on DATE ] , an article which presented a picture of NORP 's business without mentioning the drawbacks . PERSON claims that , in view of the article of CARDINAL DATE , it felt obliged to let their criticism be heard , which ORG finds very understandable .","On DATE ] , PERSON ran an article in which GPE described her own experience of treatment at PERSON clinic and urged women in a similar situation to join forces in suing the doctor . The High Court finds it proven , in the same way as for the QUANTITY women who were described on DATE , that GPE 's experiences were recounted correctly and that her subjective feelings were reasonably grounded on what had occurred . The same applies to what was stated on DATE about the experience of a ' DATE GPE lady ' . ORG is also satisfied that what was stated on DATE about telephone calls to GPE ( ' Storm of telephone calls ' ) is correct ...","As far as the rendering of the women 's experiences is concerned , what was stated in PERSON is thus in all essentials correct . And their subjective experiences were liable to give a picture of how treatment by PERSON could turn out , not only in rare exceptional cases ...","The striking part about the statements that PERSON has challenged is that they report in strong language on the results of treatment provided by PERSON : ' disfigurement ' , ' ruined for life ' , ' mutilated ' and the like . It is sufficiently clear that the statements are here describing the result of PERSON treatment . But there is nothing in the statements suggesting a lack of surgical ability on PERSON part . And one must assume that newspaper readers were aware that a poor result of an operation need not be due to a lack of surgical skill . It has been submitted that the use of expressions like ' ruined ' , ' was disfigured ' , etc . , brings to mind actions that are aimed at ruining and disfiguring and that the reader is therefore immediately made to believe that some person PERSON R. \u2013 is guilty of such conduct . ORG does not find that , from a linguistic point of view , the statements apply to anything other than the purely objective result .","Another question is whether the statements are misleading , because they give the impression that the consequences were more serious than they actually were . ORG can not see that this is the case DATE especially when bearing in mind that it is the manner of reporting of the women 's subjective opinions which is at stake . ' Disfigured ' means having an ugly mark of some significance on one 's body , and in the opinion of ORG the women who use this expression according to PERSON had good reason for doing so . Much the same can be said about ' mutilated ' . Presumably , ' ruined ' must be understood as bearing a somewhat stronger expression , but must be justified in the case of women whose breasts have large scars or have become lopsided , hard , different , or tender to touch , in view of the effect this must have had , not only on the woman 's relationship with her husband but also in many other respects \u2013 one can imagine what it must mean not to be able to give one 's child or grandchild a hug because of tender or hard breasts . According to what the ORG finds established on the witness evidence , it was , amongst other elements , against the background of such results that the newspaper had used the expressions .","While the statements thus could not be said to amount to a direct allegation that Dr NORP lacked surgical abilities , PERSON did not make it clear either that there was no lack of ability . And both the individual statements and the articles in their entirety give the impression that it is being questioned whether PERSON always provided treatment which was medically up to standard . In the light of the women 's information , however , this was a natural question to ask ; several of the women mentioned it , and anyone who reads the accounts alone would be inclined to ask that question . It can therefore not be unlawful for PERSON to air this question .","PERSON also complains that PERSON conducted a veritable campaign and persecution against him . ORG does not consider this to be the case . In particular , the newspaper should have the right to believe that women should think twice about consulting PERSON and to write articles with this in mind ...","In brief , the opinion of ORG can be summarised as follows :","In PERSON practice there were a not inconsiderable number of cases of poor followup and behaviour and the like , which gave many women reasonable grounds for feeling disappointed and badly treated . The High Court bases this assessment of evidence essentially on the women 's statements and comportment in court . PERSON was entitled to write about this and to repeat the women 's subjective experiences of the treatment . The newspaper did this in a manner which in all essentials was correct . In so far as the newspaper articles might have given the impression that there could be reason to question PERSON professional ability , this was no more than a suspicion for which his behaviour gave reasonable grounds , and which it must therefore have been right to report on . If this led to financial losses for PERSON , it was because of the extremely sensitive nature of the activities he was engaged in .","[ The applicants ] are therefore discharged from liability to pay damages , and ORG will not go into the question of the extent of PERSON financial losses .","Moreover , ORG does not find it possible to allow the claim for non - pecuniary damage and , referring to what has been stated above , does not find that any of the coverage of PERSON by PERSON was unlawful . \u201d","Dr NORP appealed against the above judgment to ORG . In his submission , ORG judgment was in principle correct , except that no reduction should have been made of the award on grounds of shortcomings on his part . In his opinion , even if ORG assessment of the evidence concerning lack of care and follow - up were to be accepted , this could only have a marginal effect on the amount of compensation . He maintained , inter alia , that the newspaper articles had amounted to a public execution of him as a plastic surgeon , by their strong emphasis on unsuccessful operations and by giving the readers the impression that he was incompetent . Furthermore , he had not been given a proper opportunity to reply to the criticism before the publications were printed . In his view , the defendants ' conduct had been grossly negligent .","The applicants emphasised that the impugned news coverage concerned above all the situation of quite a large number of women with whom the newspaper had been in contact , directly or indirectly , and who had complained about lack of care and follow - up after unsuccessful operations . They had also complained about a lack of information before the operations . The articles conveyed the women 's feelings and frustrations as expressed in their own words . Whether PERSON was a good or a bad surgeon had not been decisive .","On DATE ORG ( kj\u00e6rem\u00e5lsutvalget ) of ORG dismissed the appeal in so far as it concerned ORG assessment of the evidence relating to the issue of PERSON lack of care and follow - up of his patients , and allowed the appeal for the remainder to proceed .","NORP In a judgment of DATE ORG found in favour of PERSON and awarded him amounts totalling ORG in respect of damages and costs . Mr Justice PERSON stated , inter alia , on behalf of a unanimous court :","\u201c By way of introduction I note that newspapers , of course , have a right to emphasise questionable aspects of cosmetic surgery and to illustrate their presentation with information about unfortunate incidents . They should also be able to pinpoint critical aspects of an individual surgeon 's business and here the journalist in question must be granted a wide leeway for subjective considerations . But outright incorrect factual information of a negative character must be considered defamatory . The fact that the newspaper just repeats the accusations made by others will , according to established case - law , not in principle constitute a defence .","Accordingly , it will be necessary to consider the individual articles in order to establish their contents in relation to the rules on defamation . In interpreting the articles one should take as a starting - point the impression which they , as a whole , will make on the ordinary reader , while attaching greater weight to the headlines and the introductions than to the text presented in normal characters . ORG considered that the particularly interested reader would read the entire news report meticulously and thereby obtain a more balanced view than the reader who only takes a cursory look at the news report . I find it difficult to attach particular importance to this consideration . Even those who read the news report as a whole would easily be influenced by value judgments in headlines etc . Furthermore , the news report addresses the general public and will thus affect the doctor 's reputation as such . Unlike ORG , I can not see that one can generally assume that readers would be aware that a bad result of an operation is not necessarily due to a lack of surgical skills ...","The news report of CARDINAL DATE was based on the positive articles of DATE and the comments [ the newspaper ] had received from dissatisfied patients . It describes the situation of CARDINAL women who had undergone a breast operation involving silicon implants and who had subsequently experienced problems . On page one there is a CARDINAL - column headline ' Beautification resulted in disfigurement ' followed by a picture of a woman 's breasts disfigured by scars . In quotation marks it reads : ' We paid MONEY and the only thing we 've achieved is to be disfigured and ruined for life . ' Inside the newspaper an entire page is reserved for the news report . There is a headline covering CARDINAL columns ' Women ruined for life after cosmetic surgery ' . The same picture as on the front page is printed CARDINAL columns . Below the picture it is written : ' Enormous scars , wrinkled breasts and a long painful inflammation were the consequences of the cosmetic surgery on this woman ' . The article commences with CARDINAL points in bold print , which read :","' I paid ORG CARDINAL,CARDINAL and all I achieved was disfigurement . '","' To say that I bitterly regret it is an understatement . I 've been ruined for life and I 'll never be \u201c my old self \u201d again . '","' The pain was unbearable . I was transformed into an anxious , trembling nervous wreck in the course of DATE , and I thought I was going to die . '","In the article it appears from the women 's statements that they contacted PERSON following an inflammation and other complications and that they were unhappy with the treatment they received . I understand this to relate both to the service and the result of the treatment .","At the bottom of the page there is an interview with PERSON with the headline ' There will always be dissatisfied patients ' . In the course of the proceedings , it has been submitted that [ the third applicant ] had contacted PERSON on DATE and had asked him to comment , stating that the CARDINAL women had told her that they had released PERSON from his obligation to observe professional secrecy . However , referring to this obligation , PERSON had refused to comment on specific cases .","At the bottom of the page there is furthermore an interview with another specialist in cosmetic surgery ... with the headline ' Demanding form of surgery \u2013 Small margins between success and failure ' .","DATE , on DATE ] , a new article appeared . On the front page a headline covering CARDINAL columns reads ' Action against the breast doctor ' . Inside the newspaper there is a headline covering CARDINAL columns ' Institute proceedings against the doctor ' . It is the former patient [ GPE ] who appears and explains about experiences similar to the QUANTITY women from the articles published DATE . She invites everybody in the same situation to get together in a case against PERSON There is also an interview with ORG [ Fylkeslegen ] who states that dissatisfied patients may complain to him . Furthermore , there is an article covering CARDINAL columns with the headline ' The doctor must provide receipts ' . Here the complaint is made that PERSON allegedly requested payment without providing receipts therefor . It is indicated that this might interest both the tax authorities and the social authorities .","In the article of CARDINAL May [ DATE ] the front page contains a CARDINAL - column headline ' ORG DATE breasts ruined ' . The headline is repeated over CARDINAL columns inside the newspaper with a small amendment without importance to its contents . Here a woman explains how she underwent CARDINAL breast operations by PERSON with a bad result . Further , there is a headline covering CARDINAL columns ' Control virtually impossible ' followed by an article in which the Chief County Tax Inspector [ GPE ] is interviewed . Covering CARDINAL columns there is a framed article with the headline ' Telephone storm : to the extent I could not sleep ' . It is GPE who recalls how she received telephone calls from a number of women who recounted very ' strong ' stories about their experiences with PERSON","In the articles of DATE ] this is followed up . The front page shows a headline covering CARDINAL columns ' Telephone storm from the persons operated on ' . Furthermore there is a picture covering CARDINAL columns of CARDINAL of the breasts of a former patient , PERSON , where the point is that the stitches were not removed , in addition to disfiguring scars . Inside the newspaper there is a headline covering CARDINAL columns ' Telephone storm following criticism against fashion doctor . Had no idea we were so many ' . GPE recalls in an interview that she has talked to CARDINAL persons who all have frightening experiences to contribute . CARDINAL of these cases are explained . Further , there is a threecolumn picture of PERSON 's breasts . Connected thereto is a CARDINAL - column headline ' PERSON ( DATE ) was operated on in DATE . The stitches are still there ' . The article explains that she contacted PERSON office after the operation in order to have the stitches removed but was told to do this herself , as a pair of appropriate pincers was not available . Further , there is an article with the headline covering CARDINAL columns ' Probably no investigation ' , in which ORG is interviewed .","In the last articles of CARDINAL May the front page contains a headline covering CARDINAL columns ' Breast doctor is being investigated ' . It is stated that , according to the acting health director , ORG would immediately contact the Chief County Physician in order to carry out a thorough investigation of PERSON and his practice , and the newspaper draws attention to the question whether the doctor may lose his licence . Inside the newspaper there is a CARDINAL - column headline related to the same operation . Furthermore , there is a similar headline ' Can not do anything ' : PERSON of ORG tells the newspaper that the association can not examine complaints about the doctor 's medical practice but only complaints which relate to the doctor 's behavioural and humane treatment of patients .","The first question , which arises when evaluating the series of articles , is whether the criticism of PERSON may be characterised as an accusation and what its contents may be . On the one hand , PERSON maintains that he is accused of malpractice and that insufficiencies in respect of his work as a surgeon will be of central importance . The defendants maintain on the other hand that the criticism does not concern this but relates to a lack of information , care and follow - up treatment which is a part of the medical treatment . ORG found that evidence had been submitted proving that deficiencies in care and follow - up treatment had occurred . Since the appeal concerning the evaluation of evidence on this point has been refused , ORG is bound by the evaluation made by ORG .","The articles concern the situation of women who have experienced complications after an operation or when the original operation failed . They are in despair due to the result of the treatment and complain about the reluctance and carelessness on the part of PERSON as regards rectifying what went wrong . In my opinion the articles in [ the newspaper ] appear at the same time to be a strong attack on PERSON qualifications as a cosmetic surgeon without taking sufficiently into account the usual risk of unsuccessful operations . The statements that the women were disfigured and ruined for life and the many other strong statements , in particular in the articles of DATE , which set the tone for the other articles , can hardly be understood otherwise than as referring to a great extent to the result of the treatment where the surgical element is essential . This is also how ORG , ORG and Professor PERSON understood the articles . Initially it appears that [ the newspaper ] was of the same opinion . In an editorial of CARDINAL DATE satisfaction is accordingly expressed with the fact that the health authorities would now make a thorough examination of a ' breast doctor from GPE ' in order to ' clarify whether the methods of treatment which are used comply with professional standards ' . Since it must have been apparent that the articles would completely destroy his business , it may also be questioned whether [ the newspaper 's ] series of articles concerning PERSON could be explained in any other way than that they reflected [ the newspaper 's ] opinion that the circumstances involved reckless surgical activity which ought to be brought to the attention of the public .","In these circumstances DATE contrary to the findings of ORG \u2013 I have reached the conclusion that the articles contain an accusation against PERSON that he performed his surgical activities in a reckless way DATE an accusation which I must hold to be incorrect .","The next question is whether the resulting defamation should , for special reasons , not be considered to be unlawful . Among other things the newspaper has referred to its particular duty to attend to the interests of consumers and to the fact that the accusation against PERSON as a whole concerning improper treatment was nevertheless to a great extent correct . However , PERSON has criticised the newspaper 's handling of the case and has furthermore referred to LAW .","When a newspaper makes such strong criticism as in this case I consider that PERSON ought to have had the possibilities of a proper defence . No time element prevented this . When approached on DATE , PERSON could not make any statements about the concrete cases without being released by the patients themselves from his duty to maintain professional secrecy , and he did not have a duty to contact the patients himself for that purpose . I also find that [ the third applicant ] \u2013 and the newspaper DATE must be criticised for a lack of balance in the articles and for using unnecessarily strong and , to some extent , misleading expressions . That [ the third applicant ] was quoting the interviewees is no excuse for completely disregarding PERSON right to the protection of privacy . That the women had a subjective and strong emotional point of view to what they had experienced is understandable . But it is another matter to publish their statements to a large group of readers who would expect that these , at least in their essentials , covered the objective truth . Even though there is reason to give a wide scope to freedom of expression in order to enable newspapers to fulfil their function in society , I can not but reach the conclusion that the line has been overstepped . ... I see no reason to go into the issue of LAW .","The submission that the main content of the accusation has been proven is based on ORG assessment of the evidence as far as lack of care and follow - up are concerned .","ORG assessment of the evidence on this point can be seen from remarks spread over several pages of its judgment , especially at pp . CARDINAL to CARDINAL . On p. CARDINAL it stated :","' On the basis of the above the High Court finds it proven that PERSON ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given , and in several instances had reason to feel offended by PERSON behaviour . '","Furthermore , at p. CARDINAL it held :","' As far as PERSON is concerned , it can reasonably be established that it is a question of unsatisfactory behaviour , which occurred quite often in the cases where something happened to necessitate an extra effort after the operations . That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them . It is hardly a question of more than a minority of the cases . And it must be stressed that nothing has been said to prove that there really was a failure as regards NORP 's surgical competence . '","In these circumstances I must conclude that the essential elements of the accusations to be found in the articles concerning PERSON have not been proven , since the alleged deficiencies as regards the surgical activities , as set out in the articles , clearly overshadow the deficiencies concerning care and follow - up treatment . Furthermore , the accusations are unlawful .","In my opinion there can be no doubt that the articles have caused considerable financial losses , in addition to non - pecuniary damage , for PERSON It would have been strange if [ his clinic ] had survived the very negative comments in the articles of [ the newspaper ] . From a commercial point of view cosmetic surgery is very sensitive to anything which might shatter the potential patients ' faith in the operating doctor . The defendants must have been aware of this .","The calculation of PERSON loss involves many elements of uncertainty . In no circumstances could he automatically rely on continuing a thriving and profitable business as a private cosmetic surgeon for the rest of his life until reaching the age of retirement . Even a neutral , objective and , from any point of view , appropriate criticism would have been very damaging to him ...","Dr NORP shall be granted compensation under section CARDINAL of LAW DATE [ Skadeserstatningsloven \u2013 Law no . CARDINAL of CARDINAL DATE ] from [ the first applicant ] in respect of damage , loss of future income and suffering . As regards the CARDINAL last points , the ORG has a wide discretion according to [ the applicable legislation ] . But also as regards the first point , PERSON own conduct may be taken into consideration ...","... I have reached the conclusion that the compensation for the damage done , i.e. loss of income plus interest from DATE until this judgment , ought to be fixed at ORG CARDINAL . As regards the other requests for damages submitted by PERSON ... I consider that this should be fixed on an equitable basis at ORG CARDINAL .","Compensation in respect of loss of future income is fixed at ORG CARDINAL,CARDINAL . Further , the non - pecuniary damage to be paid by [ the first applicant ] is fixed at ORG CARDINAL . When fixing reparation , regard has been had to the exceptional pressure which PERSON has endured over a long period of time due to the series of articles .","The non - pecuniary damage to be paid by [ the second and third applicants ] is fixed at ORG CARDINAL,CARDINAL each . \u201d","Finally , ORG ordered that the first applicant pay PERSON MONEY and that the second and third applicants each pay him ORG CARDINAL for his costs in the domestic proceedings , plus certain interest with respect to PERSON costs in ORG . In accordance with the latter , the first applicant paid an additional ORG CARDINAL,CARDINAL , and the second and third applicants each paid ORG CARDINAL,CARDINAL in interest .","NORP Under NORP defamation law , there are CARDINAL kinds of responses to unlawful defamation , namely the imposition of a penalty under the provisions of LAW , an order under LAW declaring the defamatory allegation null and void ( mortifikasjon ) and an order under LAW DATE ( Skadeserstatningsloven \u2013 Law no . CARDINAL of CARDINAL DATE ) to pay compensation to the aggrieved party . Only the latter was at issue in the present case .","Section CARDINAL of the aforementioned Act reads :","\u201c A person who has injured the honour or infringed the privacy of another person shall , if he has displayed negligence or if the conditions for imposing a penalty are fulfilled , pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable , having regard to the degree of negligence and other circumstances . He may also be ordered to pay such compensation for non - pecuniary damage as the court deems reasonable .","If the infringement has occurred in the form of printed matter , and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection , the owner and publisher are also liable to pay compensation . The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation ... \u201d","Conditions for holding a defendant liable for defamation are further set out in LAW of LAW , ORG and CARDINAL of which provide :","\u201c LAW . Any person who by word or deed unlawfully defames another person , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding DATE .","Article CARDINAL . Any person who , by word or deed , behaves in a manner that is likely to harm another person 's good name and reputation or to expose him to hatred , contempt , or loss of the confidence necessary for his position or business , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding one year . If the defamation is committed in print or in broadcasting , or otherwise under especially aggravating circumstances , imprisonment for a term not exceeding DATE may be imposed . \u201d","A limitation to the applicability of LAW follows from the requirement that the expression must be unlawful ( rettstridig ) . While this is expressly stated in LAW , LAW has been interpreted by ORG to include such a requirement .","In a civil case concerning pre - trial reporting by a newspaper , ORG found for the newspaper , relying on the reservation of lawfulness ( rettsstridsreservasjonen ) , even though the impugned expressions had been deemed defamatory . It held that , in determining the scope of this limitation , particular weight should be attached to whether the case was of public interest , having regard to the nature of the issues and to the kind of parties involved . Regard should be had to the context in which , and the background against which , the statements had been made . Moreover , it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject matter and the object of the case ( PERSON , p. CARDINAL ) .","Further limitations on the application of LAW are contained in LAW , the relevant part of which reads :","\u201c CARDINAL . Punishment may not be imposed under Articles CARDINAL and CARDINAL if evidence proving the truth of the accusations is adduced ... \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5431","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2000,"docname":"AYDIN v. TURKEY","importance":3,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is a NORP national , born in DATE and living in Batman . He is represented in the proceedings before the Court by Mr PERSON , and PERSON , lawyers practising in GPE .","The applicant was detained for interrogation on DATE . On CARDINAL DATE ORG ordered his formal arrest .","On DATE , ORG found the applicant guilty of membership of the ORG , involvement in the bombing of a junior officer \u2019s house and attempted murder . The court sentenced him to DATE and QUANTITY months\u2019 imprisonment . The court ordered the applicant \u2019s conditional release .","On DATE ORG upheld the lower court \u2019s judgment .","Meanwhile , on DATE the applicant was detained for the second time and on DATE was formally arrested .","On DATE ORG No . CARDINAL found the applicant guilty of separatist acts and sentenced him to life imprisonment .","On DATE ORG upheld ORG judgment .","On DATE the applicant requested ORG No . CARDINAL to sentence him on the basis of the principle of multiplicity of sentences .","On DATE ORG No . CARDINAL accepted the applicant \u2019s submissions .","ORG No . CARDINAL sent its final decision to ORG in order to have its decision of DATE executed .","On DATE ORG objected to the decision to apply to the applicant the principle of multiplicity of sentences and requested ORG to contest the decision or , alternatively , to forward its objection to ORG .","On DATE ORG sent the correspondence of ORG to ORG No . CARDINAL .","On DATE ORG No . CARDINAL accepted the objections of ORG and cancelled the earlier decision on multiplicity of sentences . ORG No . CARDINAL concluded that the multiplicity of sentences principle was only to be applied in circumstances where a person is convicted of several crimes . As regards the applicant , the court found that he had no right to invoke the multiplicity of sentences principle since his first sentence in respect of which he was conditionally released had already been executed . The court relied on PERSON no . CARDINAL which provides that if a person is conditionally released his sentence is considered to have been executed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69886","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2005,"docname":"ELLERSIEK v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , PERSON , Mr PERSON and PERSON , are NORP nationals who were born in DATE respectively . The second and the third applicants live in GPE in GPE . The first applicant passed away on DATE . By letter of CARDINAL DATE the second applicant informed the ORG that he wished to pursue the application also on her behalf , with the consent of the first applicant 's heirs .","The applicants are represented before the ORG by PERSON , a lawyer practising in GPE .","The first CARDINAL applicants are the third applicant 's paternal grandparents . The parents of the third applicant and of her brother NORP , born in DATE , were not able to provide steady care for their children because of their drug addiction . During DATE of their life , the children were raised by their parents , their maternal grandparents and by the first CARDINAL applicants .","On DATE ORG requested ORG ( ORG ) to take appropriate measures with respect to the children 's care .","On DATE , during a first hearing , the children 's parents and ORG agreed that the children should live with their father , who was at that time undergoing therapy . Accordingly , ORG abstained from taking measures with respect to the children 's guardianship .","On DATE ORG informed ORG that the children 's father had dropped out of therapy and that both children had been placed in the care of a foster family .","On DATE the ORG heard the children 's parents and grandparents . Both parents expressed the wish that the children should be raised by the first and the second applicants .","On DATE the court - appointed expert PERSON submitted an expert opinion . He noted that both children had lacked steady relationships and care during DATE . As a result , the third applicant had developed behavioural disorders . While there was no doubt that the first and the second applicant would entertain a loving relationship with the children , the expert feared that they might have difficulties to cope with both children . The expert also noted that the first and second applicant had not demonstrated that they acknowledged their own contribution to their son 's ( the children 's father 's ) drug addiction . They had stated , on the contrary , that the educational counsellors had assured them that they had done \u201c everything right \u201d .","On DATE ORG , following the expert opinion , withdrew the parents ' custody rights and appointed ORG as guardian .","On DATE the first CARDINAL applicants lodged a complaint with a view to being appointed guardians themselves .","On DATE the third applicant 's father lodged a complaint in support of the first and the second applicants ' request .","On DATE the applicants submitted further pleadings and requested ORG ( Landgericht ) to issue an interim order assuring that the siblings remained in their current foster family , alternatively that they were not separated , further alternatively to revoke ORG right to decide on the children 's residence .","On DATE ORG asked ORG whether the siblings were still staying with the same foster family .","On DATE the first CARDINAL applicants informed ORG that they had entered into negotiations with ORG with the aim of reaching a friendly settlement . Accordingly , ORG was asked not to pass a decision on the request for interim measures .","On DATE the third applicant 's father withdrew his complaint .","On DATE ORG asked the first and second applicants ' counsel whether an agreement had been reached .","On DATE ORG judge had telephone conversations with ORG and the applicants ' counsel . He noted that the first and the second applicant did not yet wish to withdraw their complaint and that their counsel proposed to suspend the proceedings .","On DATE ORG asked the first and second applicant 's counsel on how they wished to proceed with their complaint . The presiding judge noted that a further suspension of the proceedings could not be justified .","In DATE NORP was placed in the first CARDINAL applicants ' household , while the third applicant remained in a foster family .","By letter of CARDINAL DATE the first CARDINAL applicants informed ORG that the endeavours to reach a friendly settlement had failed and that the third applicant had been given into the care of another foster family . They requested the ORG to continue the proceedings and to grant them ORG a time - limit to submit further reasoning by DATE , which they later requested to be extended until DATE .","By letter of DATE the first CARDINAL applicants submitted further pleadings . They submitted an expert opinion , according to which there was no indication that the first CARDINAL applicants would have difficulties to cope with the task of raising both children . They further declared that they did not pursue anymore their main request for an interim measure of CARDINAL DATE and the first alternative request .","On DATE ORG requested ORG to comment on the applicants ' submissions within a time - limit of DATE .","On DATE ORG stated that the third applicant should remain in the foster family .","On DATE the first CARDINAL applicants requested ORG to accelerate the proceedings . They further complained that ORG did not comply with its obligation to supervise the visiting rights .","On DATE the Judge Rapporteur heard the third applicant within her foster family .","On DATE the Judge Rapporteur heard the first CARDINAL applicants and the siblings ' maternal grandparents .","On DATE and DATE the first CARDINAL applicants requested to be granted leave to submit further comments .","On DATE ORG decided that the Judge PERSON should hear the third applicant 's mother , who was at the time serving a sentence in GPE prison . This was carried out on DATE .","On DATE the first CARDINAL applicants submitted their comments on the mother 's hearing .","On DATE ORG submitted further comments .","On DATE the first CARDINAL applicants requested ORG to accelerate the proceedings .","On DATE ORG requested the case - file from ORG , which reached ORG by CARDINAL DATE .","On DATE the first CARDINAL applicants informed ORG that their rights of access to the third applicant had been extended from DATE to once DATE . Further access rights had been denied . In view of the fact that a further lapse of time could actually weaken the applicants ' position , they requested ORG to accelerate the proceedings .","By decision of DATE ORG discharged ORG as NORP 's guardian and appointed the second applicant as his guardian . It rejected however the first and second applicants ' complaint with respect to the third applicant 's guardianship . ORG found that the first and the second applicant were well suited to raise NORP However , it would not be in the third applicant 's best interests to be deprived of her current foster family . The passages regarding the third applicant 's development read as follows :","\u201c According to the expert PERSON 's opinion , which concurs with the content of the casefile , ORG had not been able to build steady and supportive relationships during DATE of her life . She had been taken care of by continuously changing attachment figures , including her mother , her maternal grandparents , her father , her paternal grandparents , and finally the first foster parents . When examined by the expert , she already showed considerable behavioural disorders , such as a lack of distance ( PERSON ) , an inability to bond ( ORG ) and an inability to adjust ( fehlende GPE ) . As [ the first CARDINAL applicants ] had told the expert , she walked up to anybody and would not accept to be told anything . This had been confirmed by the maternal grandparents and [ the first foster mother ] . The latter added that ORG did not show any inhibitions concerning her contact with men , that she followed and even kissed them . At the beginning of her stay with the foster family , she had shown distinct rocking motions , could not accept limits , put everything into her mouth and had a phase of spitting . During the subsequent time she intensively smeared around with excrement . She was also very jealous of her brother . Both children lacked a DATE routine and had to learn how to play .","After ORG had stayed for DATE in the care of the [ first ] foster family , a new change of attachment figure occurred by her placement in the [ second ] foster family . As [ the second foster mother ] reported on the occasion of ORG 's hearing , ORG continued to show considerable behavioural disorders . She appeared mask - like , was \u201c just a friendly child \u201d , did not show sorrow or pain and lacked any sense of distance . Furthermore , she was hyperactive and unable to adjust . She fell down on straight paths , which , as [ the foster mother ] supposed , was owed to the fact that her mind was so restless that she was unable to control her movements . Ireen had a totally disordered day and night rhythm . She was temporarily very restless and demanded permanent attention , but also to be set limits . She was now able to abide by simple rules . Ireen suffers from neurodermatitis , which DATE according to [ the second foster mother ] had been aggravated in situations of stress .","The statements of [ the second foster mother ] show that the behavioural disorders which had been found by the expert PERSON , who attributed them to her unsteady socialisation , persisted after she was taken into the household of [ the second foster family ] . ORG 's behaviour during her hearing showed that she had since developed positively and in particular that she had learned to adjust . She followed [ the foster mother 's ] requests and propositions without opposing to them . She did not try to raise special attention ... The hearing and observation of the child made it clear that she had settled well into the foster family and that she had obviously bonded with her foster parents ... \u201d","ORG concluded that , given the third applicant 's lack of socialisation during DATE of her life and her positive development in the second foster family , where she had stayed for DATE , it could not be justified to deprive her of this stable environment .","On DATE the first CARDINAL applicants lodged a further complaint with ORG ( Oberlandesgericht ) with a view to being granted guardianship of the third applicant . They argued that ORG had failed to hear expert opinion , to hear the interested parties before the whole chamber and to appoint a curator ad litem ( PERSON ) to represent the third applicant during proceedings . They further requested ORG to pass an interim order granting them the right to determine the third applicant 's residence .","On DATE the first CARDINAL applicants submitted CARDINAL additional pages of reasoning and requested ORG to establish that ORG had failed to respect their right to a trial within a reasonable time .","On DATE the first CARDINAL applicants requested ORG to accelerate proceedings and to pass a decision on their request for an interim order .","On DATE ORG rejected the request for an interim order on the grounds that it would soon pass a decision in the main proceedings and that a change of the third applicant 's attachment figures would be contrary to the child 's best interests .","On DATE ORG quashed the decision of DATE and remitted the case to ORG . It found that ORG had failed to raise evidence by expert opinion on the relationship between the third applicant and her foster parents . ORG rejected the applicants ' request of CARDINAL DATE to establish the allegedly undue length of proceedings for lack of a legal basis . It further ordered ORG to appoint a curator ad litem ( PERSON ) , to safeguard the third applicant 's interests during proceedings .","On DATE and CARDINAL DATE the first CARDINAL applicants requested a swift processing of the proceedings in view of the fact that the third applicant still remained with a foster family .","On DATE ORG decided to hear expert opinion and appointed a curator ad litem to represent the third applicant .","On DATE the expert informed the court that she had agreed with the first CARDINAL applicants and with the foster parents that the third applicant should also be examined with respect to her behaviour during and after DATE which she would spend with the first CARDINAL applicants . Accordingly , she would submit her expert opinion by DATE .","On DATE the expert submitted her expert opinion . She found that the foster family , especially the foster mother , had succeeded to help the third applicant to develop from a disturbed , mentally disordered child , who had been unable to build relationships , into a healthy , self - confident DATE girl . This positive development was owed to the foster mother 's high qualification as a trained social pedagogue and the additional support offered by a professional institution devoted to the welfare of children .","In spite of the fact that the third applicant was very much attached to her foster family , she nevertheless expressed the strong wish to live with the first CARDINAL applicants . With regard to the fact that the child felt torn between the CARDINAL families , the expert recommended to postpone a final decision for DATE until the third applicant 's entrance into primary school . However , if a decision had to be taken earlier , the expert found that the first and the second applicant were very well able to raise both grandchildren , and that they were willing to seek professional assistance if this should appear necessary . Considering the third applicant 's strong wish to live with her grandparents , the expert recommended to place her into the care of the first and the second applicants .","On DATE the expert opinion was served on the parties for comments within DATE .","On DATE the first CARDINAL applicants submitted their comments and requested ORG to schedule a hearing .","On DATE the foster family organisation submitted their comments , according to which the third applicant should remain within the foster family , while maintaining regular contact with the first CARDINAL applicants .","On DATE the third applicant 's curator ad litem submitted her comments , according to which the expert had not sufficiently explored the first CARDINAL applicants ' ability to raise the third applicant . She further found that , while the child 's own wishes were not to be neglected , a child of DATE was not able to reach an autonomous decision on its circumstances of life .","On DATE the curator ad litem asked that the expert should be heard by the court .","On DATE ORG served the comments to the applicants for further comments within DATE .","On DATE the first CARDINAL applicants submitted comments drafted by a psychological expert , which supported the court - appointed expert 's conclusions .","On DATE and CARDINAL DATE the applicants requested ORG to promote the proceedings and to schedule a hearing .","On DATE the curator ad litem asked to be granted DATE leave for further comments .","On DATE ORG informed the applicants about its intention to schedule a hearing for DATE , which could not take place because of the expert 's illness . Should the expert be able to attend a hearing on DATE , the hearing would be scheduled accordingly .","On DATE the expert informed the ORG that she could appear on DATE .","On DATE ORG scheduled a hearing for DATE .","On DATE the first CARDINAL applicants submitted further comments .","On DATE ORG held a hearing , in which it heard the foster parents , the first CARDINAL applicants , the expert and the curator ad litem .","By decision of DATE ORG discharged ORG and appointed the first and the second applicants as the third applicant 's guardians .","In its reasoning , ORG referred to the expert 's finding that the first CARDINAL applicants were well suited to raise the third applicant and that the latter had expressed a strong wish to live with them .","On DATE the first and second applicant lodged a further complaint against the decision of CARDINAL DATE with the aim to be granted legal aid and to establish that the length of the proceedings before ORG had violated their rights under LAW and under LAW , CARDINAL \u00a7 DATE and CARDINAL of the Convention .","On DATE the ORG refused to grant legal aid and rejected the complaint as inadmissible , maintaining that there was no provision in the procedural law which allowed establishing that proceedings had lasted too long .","On DATE the first and second applicant raised an objection ( NORP ) against the refusal to grant them legal aid , which was rejected on DATE .","On DATE the first and second applicant lodged a constitutional complaint in which they complained about the length of the proceedings before ORG and about the decision of ORG of DATE .","On DATE all CARDINAL applicants lodged a constitutional complaint complaining about the length of the proceedings before ORG , about the decisions of ORG of DATE and DATE and about the decisions of ORG of DATE and DATE .","On DATE the applicants requested ORG to grant them adequate compensation for the length of proceedings .","On DATE the applicants lodged a complaint in which they complained about ORG decisions of DATE and DATE to deny them legal aid .","On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicants ' complaints as being inadmissible . That ORG further found that there was no legal basis to grant the applicants compensation . This decision was served on the applicants on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79212","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2007,"docname":"ERIK v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national of NORP ethnic origin who was born in DATE and lives in GPE . She was represented before the ORG by Mr M. PERSON , Mr PERSON , Ms L. K. N. Claridge , and Mr PERSON of ORG in GPE .","may be summarised as follows .","In DATE or DATE , a large team of police officers forcibly entered the applicant \u2019s house and arrested her son , PERSON . The applicant claims that , during arrest , they were ill - treated and that for a long time she was unable to discover the whereabouts of her son . She further claims that the police threatened her that if her son was not conscripted for military service he would be killed .","On DATE the applicant \u2019s son , PERSON , commenced his compulsory military service . He was stationed in ORG . The applicant submits that her son had told her that some of the soldiers , namely ORG , ORG and ORG , had threatened to kill him because he was from ORG and , therefore , a terrorist .","On DATE PERSON was found shot . He was taken to ORG , where he died . A post mortem examination was conducted on the deceased . The doctor considered that no autopsy was needed since the cause of death was internal bleeding from a single shot gun wound to the chest . No bruises were found on the body . The authorities were of the opinion that the applicant \u2019s son had committed suicide .","On DATE PERSON body was transferred to GPE for burial . The applicant claims that she was told several times not to uncover the body and to bury it within TIME . She further submits that when she uncovered the body she discovered that apart from the gun wound there was bleeding coming from the right eye , right ear and nose .","On DATE the applicant \u2019s husband complained to the ORG public prosecutor \u2019s office that his son had been killed by CARDINAL soldiers and claimed that his son \u2019s body had suspicious injuries . He requested an autopsy . On CARDINAL and DATE , the prosecutor heard the applicant \u2019s husband , who reiterated his previous submissions . In DATE the prosecutor decided that he lacked competence to investigate the complaints and transferred the case file to the GPE military prosecutor .","On DATE the body of Mr PERSON was exhumed . The autopsy confirmed that the cause of death was internal bleeding from a single shot gun wound to the chest . The autopsy report also found that there was a scaled graze of QUANTITY on the right ankle and that there were no other signs of bruises on the body . Finally , the report indicated that due to putrefaction of the body there was swelling , blood - clots and a change of colour in some parts of the body .","Acting by proxy , the GPE public prosecutor heard the applicant and her husband on DATE .","By a decision dated DATE , the GPE military prosecutor decided to discontinue the proceedings . In her decision , the prosecutor , relying on the testimonies of other conscripts , CARDINAL civilians , the ballistic report and the autopsy report , concluded that there was no indication which would lead her to conclude that the death of Mr PERSON had been caused by someone else \u2019s intent or negligence .","In the same decision the prosecutor filed an indictment against Mr GPE for the ill - treatment of subordinates . She submitted that , independent of the death of PERSON , it had been established by witness testimony that Mr ORG had slapped the deceased and CARDINAL other conscripts for not keeping a proper guard . She requested that Mr I.O. be charged and convicted under LAW .","On DATE the applicant objected to the prosecutor \u2019s decision to discontinue the proceedings . In her petition , the applicant submitted , in particular , that her son had not committed suicide but had been killed . She claimed that her son had told her that he had been threatened by Mr M.A.S. and Mr B.Y.\u00d6. She further complained about the contradictions between the post mortem examination and the autopsy report . In this regard , she submitted that the autopsy report had found a graze on her son \u2019s right ankle whereas the post mortem report had found no bruises on his body .","On DATE the applicant \u2019s objections against this decision were dismissed by ORG . This decision was served on the applicant on DATE .","In the meantime , Mr GPE was convicted under LAW and sentenced to a fine . This decision became final on DATE as no one appealed . The applicant was not a party to the proceedings .","The first letter concerning the application was submitted by the applicant \u2019s lawyers on DATE to ORG . After giving a brief description of the events and submitting without further specification that the applicant alleged a violation of ORG , DATE , DATE , DATE , DATE , CARDINAL and DATE of the LAW , the lawyers informed the ORG that they were assembling the necessary documentation in order to submit the full application . A number of official documents were attached to the first letter .","ORG acknowledged receipt and the case was given a provisional number .","On DATE the applicant \u2019s lawyers submitted the completed application form together with documents .","On DATE ORG informed the applicant \u2019s lawyers of certain shortcomings in the application , namely that the full application form had been submitted DATE , DATE and DATE after the first letter and requested that they provide an explanation of the reasons for the delay . The applicant \u2019s ORG attention was drawn to the LAW case - law on this point .","On DATE the applicant \u2019s lawyers submitted that the applicant and her family were subjected to constant intimidation and threats by the authorities , that the failure to investigate Mr PERSON \u2019s death constituted a continuing violation and that there were considerable delays in obtaining the documents pertaining to the domestic investigation .","On DATE , upon the receipt of a revised authority form , the application was registered . The applicant \u2019s lawyers were informed that the date of introduction of the application would be considered as having been CARDINAL DATE unless the ORG decided otherwise ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114526","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2012,"docname":"SELLICK AND SELLICK v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["The applicants , Mr PERSON and Mr PERSON , are brothers who were born in DATE and DATE respectively . They are NORP nationals and they are currently detained at FAC . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE with ORG , assisted by Mr PERSON FAC and Mr A. Dos Santos , counsel .","At TIME on DATE Mr PERSON was shot and killed in the car park of the Talisman public house in GPE .","NORP The present application concerns the applicants\u2019 conviction for the murder of PERSON . They were tried together with a third man , PERSON , who was acquitted by the jury . Their main ground of complaint to this ORG is that , at the men \u2019s trial , the trial judge ( GPE J ) allowed the statements of CARDINAL people to be read to the jury because he was satisfied either that they had been kept away through fear or that they could not be found and reasonable steps had been taken to trace them .","The circumstances of Mr ORG murder , the trial and the ORG subsequent , unsuccessful appeal to ORG may be summarised as follows .","As stated above , ORG and PERSON are brothers . Their halfbrother , PERSON , was a friend of PERSON . PERSON girlfriend was PERSON . PERSON girlfriend , PERSON , was PERSON niece . PERSON , a friend of PERSON , had been in a relationship with PERSON , which ended before the shooting . It was the statements of PERSON , PERSON and PERSON ( together with that of a fourth person , PERSON ) which came to be read at trial in the circumstances described in paragraphs CARDINAL\u2013CARDINAL below . PERSON gave live evidence , but as a hostile witness for the prosecution : see paragraph CARDINAL below .","It was the prosecution \u2019s case that PERSON was the gunman . His motive for shooting PERSON was that the deceased was a rival drug dealer and , just before the shooting , PERSON had found out that PERSON had slept with PERSON . The prosecution also alleged that PERSON was PERSON \u2019s partner in drug dealing , that he drove PERSON to the murder scene and that he provided the murder weapon . Mr GPE was alleged to have been present at the scene as part of the joint enterprise of murder . It was also the prosecution \u2019s case that , after the shooting , the CARDINAL men had met PERSON , PERSON and PERSON at a hotel where they discussed the shooting and how to ensure no one talked about it .","PERSON \u2019s defence was that he had been ill in bed at the time of the shooting . PERSON \u2019s defence was that he was not present at the shooting and had no knowledge that it would take place . Mr GPE \u2019s case was that he was present at the scene of the shooting but did not know it would take place and was not a party to it .","In the course of the investigations , the police obtained the following witness statements .","PERSON \u2019s statements were made to the police after he had been arrested for conspiracy to murder PERSON . He stated that he had been involved , with LAW and PERSON , in buying crack cocaine from Mr Chambers . In DATE before the shooting , the brothers had owed GBP CARDINAL PERSON , which PERSON wanted paying . He also stated that , DATE before the shooting , PERSON and PERSON had rowed because PERSON had told PERSON that she had slept with Mr Chambers . On DATE of the shooting he , PERSON , had spoken to Mr Chambers about the money owed and learned that he would be at the Talisman that evening . He had told Carlo this and later telephoned Carlo from the pub to say that PERSON was there . He had then left the pub for PERSON flat . He returned to the pub with PERSON when told about the shooting .","In the telephone calls after the shooting he had asked ORG what was going on ; ORG had told him to make sure no one saw anything . When PERSON asked how he could do that , PERSON told him to sort himself out or he would get the same . ORG had also asked him whether PERSON was dead or alive . The following day , PERSON called him to tell him to book them into a hotel . When PERSON , PERSON and Mr GPE arrived there , PERSON said \u201c it was not supposed to happen like that \u201d . ORG said ( referring to Mr GPE ) \u201c How do you think he feels ? He only came along for the ride \u201d .","In the course of his statements PERSON also told the police that he was scared , not only for himself , but for his family and for PERSON . Later he also said that he was frightened for his safety and for any revenge PERSON and PERSON might take against him , but he was willing to go to court .","PERSON in her statements also said that , before the shooting there had been a row at her flat between PERSON and PERSON in which PERSON had used considerable violence on PERSON . Her account of events at the hotel was similar to PERSON account . She agreed that , if asked by the police , she would limit her account to events in the car park after finding PERSON collapsed . She did so out of fear for herself , PERSON , PERSON and her children . PERSON also stated that she too was scared and that she \u201c had her children to think about \u201d .","In her statement PERSON stated that the CARDINAL brothers had dealt in drugs and that she understood that PERSON and PERSON obtained their supplies from PERSON . Her relationship with ORG ended before the shooting . After it she had seen PERSON with a black eye . There had been an occasion in DATE when ORG had asked her to hide a balaclava and gun for him .","PERSON , an ex - girlfriend of PERSON , provided a statement as to the types of car that he drove .","After making their statements , PERSON and PERSON were admitted to the witness protection scheme . On an unspecified date they left the scheme and returned to GPE , only to then disappear . When the matter came to trial at ORG , neither PERSON nor PERSON could be found , despite witness summonses being issued for their attendance . The prosecution took the view that there had been a concerted attempt to subvert the trial and that this had been done on behalf of the defendants by members of their extended family . Accordingly , it applied for the statements of PERSON and PERSON to be read to the jury pursuant to section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) . Before determining that application , the trial judge heard evidence in chambers from PERSON mother , PERSON , and from CARDINAL police officers who had attempted to trace Mr GPE and PERSON . CARDINAL of the police officers gave evidence as to a conversation with PERSON in which she recounted an incident where family members of the applicants approached her outside her son \u2019s school and told her that \u201c she should not be a grass \u201d .","Having heard that evidence , the trial judge allowed the statements to be read . He ruled :","\u201c Having heard and seen the witnesses called in this application , I am satisfied so that I am sure of the following ORG","( CARDINAL ) Following the arrest of the defendants in DATE , both PERSON and PERSON were made subjects of a witness protection scheme ;","( CARDINAL ) Both PERSON and PERSON voluntarily withdrew from that scheme in DATE and returned to the LOC area where the murder had been committed . They were then living together and continued to live together until DATE ;","( CARDINAL ) PERSON and PERSON were informed in writing of the date of this trial in DATE and DATE and were notified on those occasions that they were required to attend as witnesses ;","( CARDINAL ) On DATE , PERSON attended Billeston Street Police Station where she spoke to ORG . In that conversation , she described an incident which had taken place outside her son \u2019s school when members of the PERSON family , associates of the defendants , told her she should not be a grass ;","( CARDINAL ) PERSON told ORG on DATE that she felt intimidated by the approach made to her by the PERSON family and that she anticipated that that intimidation would become more intensive as the trial date approached . ORG believed , from what PERSON said to him and her general demeanour , that the PERSON connection was capable of intimidating her and that she was fearful for her own safety and that of her family ;","( CARDINAL ) In DATE , PERSON and PERSON both knew of the trial date , the place of trial and that they were required to attend to give evidence at trial ;","( CARDINAL ) From DATE , police officers have made repeated attempts to find PERSON and PERSON . Police officers have visited all addresses in any way associated with either witness and have pursued all available avenues of enquiry . Despite all those efforts , neither witness has been found ;","( CARDINAL) The mother of PERSON , PERSON , has not seen her daughter for DATE . PERSON has left her home and her children , CARDINAL boys aged DATE , and effectively disappeared . The children are being cared for by PERSON . PERSON has no knowledge of her daughter \u2019s whereabouts and does not know how to get in touch with her . Since PERSON left , her younger child was admitted to hospital but even that event , of which PERSON learned through telephone contact with her grandmother , did not prompt her to reappear ;","( CARDINAL ) PERSON told ORG Pearson that PERSON was staying away from her children for DATE until the trial was over to avoid getting killed and putting her children in danger ;","( CARDINAL ) PERSON told ORG Pearson that PERSON was frightened and thought he would be killed whether he gave evidence or not . He had tried to commit suicide ;","( CARDINAL ) PERSON herself is a very frightened woman . She refused to make a written statement about the events surrounding the disappearance of her daughter . Her attendance at court had to be secured by a witness summons and a threat of arrest . The public gallery had to be cleared before she was prepared to give evidence .","...","I am satisfied so that I am sure that all reasonable steps have been taken by the police to find both PERSON and PERSON but neither witness can be found . I reject the suggestion that the police should have done more to keep in contact with the witnesses in DATE leading up to the trial . I am satisfied that the steps taken by the police were appropriate and reasonable in the light of the information available to them .","...","There is , in my judgment , clear admissible evidence that both witnesses were in fear at the time they made their witness statements to the police . There is further admissible evidence that PERSON was fearful about giving evidence in DATE . There is , however , no admissible evidence that PERSON was in fear of giving oral evidence and whilst it would be possible for me to infer from all these circumstances that he was , I am not able , in his case , to exclude the reasonable possibility that other factors may have influenced his disappearance . It is highly probable that fear of the consequences of giving evidence against the defendants and that alone has prompted him to disappear but I can not be sure of that conclusion . However , in the case of PERSON , I am entirely satisfied that fear for her own safety and fear for the lives of her children have driven her to behave as she has , abandoning her own children even when CARDINAL of them was admitted to hospital . I am further satisfied , in the case of both witnesses , that no adjournment will secure their attendance .","...",", in my judgment , wholly credible . The defendants are all in a position to controvert the contents of the statements if they dispute them . I accept , however , that there is a disadvantage to the defence if the statements are read and if they are admitted , the jury must receive clear directions emphasizing that disadvantage . Further , so far as PERSON is concerned , the defence point to a number of features which they submit undermine his credibility . However , LAW of schedule CARDINAL of the DATE Act [ see relevant domestic law and practice at paragraph CARDINAL below ] provides a wholly sufficient remedy for that concern .","Having taken into consideration all the submissions made and given full weight to the provisions of LAW , I am of the clear view that the statements made by PERSON and PERSON ought to be admitted in the interests of justice . I so rule . \u201d","After the trial had started , the prosecution applied for leave to have the statements of PERSON and PERSON read . They again relied on statements of police officers who had sought to trace the women . The trial judge allowed each woman \u2019s statement to be read . In the case of PERSON he found the evidence was \u201c quite overwhelming \u201d that she had been intimidated and that it was not possible to secure her attendance by any reasonable means . For PERSON , he was not satisfied that she was in fear , but was satisfied that all reasonable steps had been taken to find her . The statements were cogent , innately credible and , in each case , controvertible by evidence from the defendants and , indeed , by other possible means . It was in the interests of justice that the statements be admitted .","PERSON gave evidence as to the CARDINAL ORG drug dealing . She confirmed that she had slept with PERSON . PERSON had found out in the course of a row they had on DATE and he had hit her . The following night , they met in the Talisman . PERSON was angry and threatened to kill PERSON , and had said that this would be PERSON fault . She left the pub and had been in PERSON flat at the time of the shooting . At the hotel , PERSON said that no one would know who pulled the trigger except him and Carlo . If she told anyone she would get the same . Carlo also told her to keep her mouth shut . She had another conversation with PERSON on DATE in which he admitted to being the gunman . There had been a further conversation , when PERSON was in prison for other reasons , in which he said to her that the police had nothing on them . In crossexamination she accepted that her testimony was based on the account she had given to the police after she had been arrested for conspiracy to murder , but maintained that it was the truth .","CARDINAL witnesses gave evidence that they had seen a group of men in the car park , had heard shots and had then seen CARDINAL people running to a car and driving away . A third witness testified that he had seen the deceased , heard a raised voice and then a bang , and that the deceased had then fallen over . A fourth witness testified that he had seen CARDINAL men joined by a third and had heard some discussion which could have been about drug dealing . Moments later he heard CARDINAL loud bangs .","The jury also heard evidence from a Mr PERSON , who testified that he had gone to PERSON flat after the shooting because he knew the person who had been with the deceased at the pub had gone to the flat with PERSON TIME before . PERSON , PERSON and another woman returned to the car park with him .","Evidence of mobile telephone traffic was also led by the prosecution , which showed that there had been calls between PERSON and PERSON after the shooting , that someone used a payphone at the hospital to call Carlo , PERSON and Mr GPE , and that Carlo \u2019s telephone had been in use near the Talisman prior to the shooting .","For each brother , the prosecution relied on the fact that they had , on the advice of their solicitors , made no reply to any of the questions put to them during his police interview . For PERSON , the prosecution also relied on the fact that , even by DATE , PERSON had stated that he was still unable to recall where he had been at the time of the shooting and that it was only by DATE that he had been able to say that he was in bed sick on TIME in question . For Carlo , the prosecution submitted that it was implausible for him subsequently to explain that his silence in interview was because he had been unable to recall driving to GPE DATE , not least because , on ORG \u2019s own evidence , PERSON had phoned him TIME to tell him about Mr Chambers\u2019 death .","Finally , the prosecution relied on covert recordings of conversations between the brothers while in their cells at the police station , which , the prosecution alleged , showed that they were plotting to subvert the evidence against them . The defence admitted the conversations but said that they were to wind the police up .","PERSON gave evidence in which he denied killing PERSON . He was not at the Talisman on TIME of the shooting ; he had been in bed sick , where he had found out about the shooting from the television news . His memory had been jogged by being shown his mobile phone records for DATE of the shooting .","He said it was PERSON who had been dealing in drugs . He was unaware that PERSON had been unfaithful to him and had not assaulted her before the shooting . They had only rowed because he had slept with PERSON . He denied the conversation with PERSON in the pub after the shooting and had only gone to the hotel to drop off cannabis for PERSON . At the hotel he had rowed again with PERSON over PERSON and she had told him she would get him back . The only discussion of PERSON had been over hearing about the shooting on the news .","In his evidence ORG denied buying or selling drugs to or from Mr Chambers , but had been a heavy drug user himself . He too maintained that it was PERSON who had been dealing with PERSON and that , prior to the shooting , he had spoken to PERSON because PERSON was trying to borrow money . TIME of the shooting he and Mr Marandola had been driving to GPE in GPE to take cannabis to his uncle . When PERSON summoned them to the hotel , they had collected PERSON on the way back from GPE . There was no conversation or suggestion that ORG had been responsible for Mr ORG death .","Mr GPE did not give evidence , although his police interviews were introduced . When first interviewed he said that he was at his girlfriend \u2019s at the time of the shooting but , in a subsequent interview , he said PERSON and PERSON had picked him up in a car and said they were going to meet someone . They told him to stay in the car . He did not and saw the brothers and a third man approach from the pub . He heard CARDINAL shots and then the brothers returned to the car , and the CARDINAL of them drove off .","The trial judge \u2019s summing up contained the following direction on the witness statements which had been read :","\u201c You will , I am sure , recall that I told you when the first of those statements was read how you should approach their evidence but it is important that I remind you again of what I told you . Their statements are emphatically not agreed . The defendants would have wished that all of them should be called to give evidence before you . However , there are circumstances where I , as the judge , may permit the prosecution to read the statements of a witness even where the defence wish those witnesses to be called . That is a matter for my decision and you are not , please , to speculate on why I have reached that decision .","You will , of course , immediately appreciate that the defence are disadvantaged by the course I have permitted to take place . You can not see the demeanour and appearance of the witness when assessing the extent , if at all , you are able to rely on the content of the statements . The defence can not cross - examine , can not test the accuracy and honesty of the evidence , can not suggest to the witness a different account or explore with the witness other matters to which the witness does not speak in his or her statement .","Thus , when you consider this evidence , bear those observations clearly in mind and give the disadvantage arising from the procedure the weight you think right in determining whether you can rely in any way on the witness statements read to you and , if so , to what extent .","In this connection bear in mind the submissions of the defence on the accuracy and reliability of the statements of those witnesses . It is suggested that each of them may have a sinister motive for not wanting to give evidence and their protestations of fear in their statement are , submit the defence ( my word not theirs ) simply weasel words designed to protect themselves , not from any of the defendants , but from the consequences of their own involvement in what occurred on TIME . You heard their submissions , you give them the weight you think right . \u201d","The trial judge also explained to the jury that PERSON statement had been given at the end of his interviews while he was under arrest for conspiracy to murder and that he had a substantial criminal record , including convictions for robbery . The trial judge instructed the jury that they could have regard to this background in assessing whether they could rely on his statements . When summarising PERSON evidence in respect of the gun Carlo had given her to look after , the trial judge also commented that , if the jury chose to accept that evidence , it went no further than showing that , DATE before the shooting , Carlo was in possession of a weapon of a broadly similar type as that used to shoot the deceased . The trial judge then asked the jury to bear in mind the criticisms that had been made of PERSON and her evidence by the defence .","Further directions were given in the usual terms as to the adverse inferences which could be drawn from ORG and PERSON \u2019s silence during their police interviews and that PERSON interviews were evidence only against him and not his co - accused .","On DATE the jury unanimously convicted PERSON and PERSON and acquitted Mr GPE . The brothers appealed against their conviction .","The appeal was dismissed on DATE . In considering the relevant case - law of this ORG , at paragraph CARDINAL of its judgment , ORG stated that what appeared from that case - law were the following propositions :","\u201c i ) The admissibility of evidence is primarily for the national law ;","ii ) Evidence must normally be produced at a public hearing and as a general rule Article CARDINAL ) and ( CARDINAL)(d ) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses ;","iii ) It is not necessarily incompatible with Article CARDINAL(CARDINAL ) and ( CARDINAL)(d ) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings . Article CARDINAL ) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held . The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue , whether , where statements have been read , the trial was fair .","iv ) The quality of the evidence and its inherent reliability , plus the degree of caution exercised in relation to reliance on it , will also be relevant to the question whether the trial was fair . \u201d","ORG then stated :","\u201c The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process , the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant . Certainly at first sight paragraph CARDINAL of PERSON seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of LAW , if the statements are the sole or decisive evidence . Furthermore there is some support for that position in the previous authorities . But neither PERSON nor any of the other authorities were concerned with a case where a witness , whose identity was well - known to a defendant , was being kept away by fear , although we must accept that the reference to ORG - type organisations and the trials thereof in paragraph CARDINAL shows that the court had extreme circumstances in mind .","The question we have posed to ourselves is as follows . If ORG were faced with the case of an identified witness , well - known to a defendant , who was the sole witness of a murder , where the national court could be sure that that witness had been kept away by the defendant , or by persons acting for him , is it conceivable that it would hold that there were no \u2018 counterbalancing\u2019 measures the court could take which would allow that statement to be read . If care had been taken to see that the quality of the evidence was compelling , if firm steps were taken to draw the jury \u2019s attention to aspects of that witnesses\u2019 credibility and if a clear direction was given to the jury to exercise caution , we can not think that ORG would nevertheless hold that a defendant \u2019s LAW had been infringed . In such a case , as it seems to us , it is the defendant who has denied himself the opportunity of examining the witnesses , so that he could not complain of an infringement of LAW ) , and the precautions would ensure compliance and fairness in compliance with Article CARDINAL(CARDINAL ) . We for our part see no difficulty in such a clear case .","More difficulty arises in cases where it is not quite so clear cut , but the court believes , to a high degree of probability , that identified witnesses are being intimidated for and on behalf of the defence , and where the court is sure to the criminal standard of proof that witnesses can not be traced and brought before the court ( GPE J \u2019s state of mind on PERSON in the instant case ) . In our view , having regard to the rights of victims , their families , the safety of the public in general , it still can not be right for there to be some absolute rule that , where compelling evidence is the sole or decisive evidence , an admission in evidence of a statement must then automatically lead to a defendant \u2019s LAW being infringed . That would lead to a situation in which the more successful the intimidation of the witnesses , the stronger the argument becomes that the statements can not be read . If the decisive witnesses can be \u2018 got at\u2019 the case must collapse . The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them . Such an absolute rule can not have been intended by ORG in GPE . \u201d","ORG then gave the following guidance when dealing with applications for statements to be read under sections CARDINAL and CARDINAL of LAW DATE :","\u201c Our view is that certainly care must be taken to see that sections CARDINAL and CARDINAL , and indeed the new provisions in LAW DATE , are not abused . Where intimidation of witnesses is alleged the court must examine with care the circumstances . Are the witnesses truly being kept away by fear ? Has that fear been generated by the defendant , or by persons acting with the defendant \u2019s authority ? Have reasonable steps been taken to trace the witnesses and bring them into court ? Can anything be done to enable the witnesses to be brought to court to give evidence and be there protected ? It is obvious that the more \u2018 ORG the evidence in the statements , the greater the care will be needed to be sure why it is that a witness can not come and give evidence . The court should be astute to examine the quality and reliability of the evidence in the statement and astute and sure that the defendant has every opportunity to apply the provisions of Schedule CARDINAL . It will , as section CARDINAL states , be looking at the interests of justice , which includes justice to the defendant and justice to the victims . The judge will give warnings to the jury stressing the disadvantage that the defendant is in , not being able to examine a witness . \u201d","Finally , on the facts of the applicants\u2019 case , ORG concluded :","\u201c This was a case in which the judge was sure that PERSON was being kept away through fear by virtue of the conduct of the appellants or those acting on their behalf . So far as PERSON was concerned , his view was that it was \u2018 highly ORG but he could not exclude the reasonable possibility that other factors may have influenced his disappearance . What he was sure of was that PERSON could not reasonably be found , and it was legitimate to make part of his reasoning the high probability .","The judge was further sure that PERSON had been kept away through fear . He was simply sure so far as PERSON was concerned that she could not reasonably be found . So far as PERSON is concerned , her evidence was not of any great importance . Furthermore , so far as PERSON was concerned , she supported the fact that the appellants were involved in drug dealing and she provided some evidence that PERSON had had in his possession at one time a gun which was broadly similar to that which expert evidence had been indicated for the killing . But in relation to that evidence the judge gave a clear warning to the jury about the limitations of that evidence over and above reminding the jury to bear in mind the criticisms made of PERSON and her evidence ( see page CARDINAL ( c ) to ( e ) of the summing up ) . Thus the evidence of PERSON could certainly not be described as decisive .","PERSON and PERSON certainly did give important evidence . It was however certainly not the sole evidence . PERSON , for example , gave evidence of a conversation with PERSON immediately after the shooting in which ORG told him \u2018 to sort himself out , get control or he \u2019d get the ORG , which the judge described as \u2018 very important evidence in the case of GPE . ( see page DATE of the summing up ) . Both PERSON and PERSON provided descriptions of the return of PERSON , PERSON and GPE to ORG .","However , there was a great deal of circumstantial evidence , including the tracking of the mobile phones of the appellants and GPE . But , in particular , there was the oral evidence of PERSON . True , PERSON was treated as a hostile witness . True , also , that PERSON \u2019s evidence was strongest against PERSON , but it was powerful against Carlo too .","We have no doubt that the judge properly exercised his discretion in this case . So far as PERSON and PERSON are concerned , they were witnesses kept away by fear , a fear for which the appellants were responsible . It should not be forgotten that part of the evidence against the appellants related to covert telephone calls in which they were seeking to subvert the trial . The statements originally taken from PERSON and PERSON contained statements to the effect that they were fearful of what might happen to them . PERSON , who gave evidence in chambers , was clearly a frightened woman . PERSON was clearly a frightened witness . This was a trial in which fear was being generated by the appellants or those acting for them in order to prevent evidence being given against them . Where the judge was sure of that it seems to us that the appellants can not complain that their LAW were being infringed simply by references to those witnesses not being at the trial .","So far as PERSON is concerned , the circumstances in which he could not reasonably be found included all the above circumstances and the high degree of probability as to his fear . In his case it can not be said that the defendants lose their right to complain of an infringement under LAW , but even in his case , where the evidence was \u2018 LOC as against Carlo , even if that meant \u2018 ORG , our view is that provided counter - balancing procedures were properly in place the judge was entitled to admit his statement .","Counter - balancing procedures clearly were in place in that the judge took account of LAW and Schedule CARDINAL [ of LAW DATE ] . PERSON was an identified witness and it was open to the appellants to attack the credibility of PERSON ; indeed they did so , suggesting that he was in fact himself responsible for the murder , that being the reason why he made the statement that he did . Furthermore , the judge warned the jury in relation to all the statements that were read in clear and unequivocal terms . He gave them a strong direction at the time the statements were read .","...","If we had formed the view that there was a breach of LAW , that would have rendered the trial unfair and we could not have , in those circumstances , upheld the conviction as safe and a retrial would have had to have been ordered . We are quite clear that the appellants\u2019 rights under LAW were in no way infringed in this case . We are equally clear that the convictions of these appellants are safe and this appeal must be dismissed . \u201d","The applicants applied for permission to appeal to ORG . This was refused by ORG on DATE .","At the time of the ORG trial , the relevant statutory provisions were to be found in sections CARDINAL of LAW DATE . LAW provided for the admission of first hand documentary hearsay in a criminal trial :","\u201c CARDINAL.\u2014 NORP ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if\u2014","( CARDINAL ) ....","( a ) ... the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness ;","[ or ]","( c ) ... all reasonable steps have been taken to find the person who made the statement , but that he can not be found ..","CARDINAL.\u2014(CARDINAL ) NORP If , having regard to all the circumstances\u2014","( a ) the ORG Court\u2014","( i ) on a trial on indictment ;","( ii ) on an appeal from a GPE court ; or","( iii ) on the hearing of an application under section CARDINAL of the [ DATE c. CARDINAL . ] Criminal Justice Act DATE ( applications for dismissal of charges of fraud transferred from GPE court to ORG ) ; or","( b ) the criminal division of ORG ; or","( c ) NORP a GPE court on a trial of an information ,","is of the opinion that in the interests of justice a statement which is admissible by virtue of section CARDINAL or CARDINAL above nevertheless ought not to be admitted , it may direct that the statement shall not be admitted .","( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) above , it shall be the duty of the court to have regard\u2014","( a ) to the nature and source of the document containing the statement and to whether or not , having regard to its nature and source and to any other circumstances that appear to the court to be relevant , it is likely that the document is authentic ;","( b ) to the extent to which the statement appears to supply evidence which would otherwise not be readily available ;","( c ) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings ; and","( d ) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness to the accused or , if there is CARDINAL , to any of them .","CARDINAL Where a statement which is admissible in criminal proceedings by virtue of section CARDINAL or CARDINAL above appears to the court to have been prepared , ... , for the purposes-","( a ) of pending or contemplated criminal proceedings ; or","( b ) of a criminal investigation ,","the statement shall not be given in evidence in any criminal proceedings without the leave of the court , and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice ; and in considering whether its admission would be in the interests of justice , it shall be the duty of the court to have regard-","( i ) to the contents of the statement ;","( ii ) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness in the accused or , if there is more that one , to any of them ; and","( iii ) to any other circumstances that appear to the court to be relevant ... \u201d","Schedule CARDINAL to the LAW allowed for the admission of evidence relating to the credibility and consistency of the maker of the statement , where such evidence would have been admissible had he or she given evidence in person , or where the matter could have been put to him in cross - examination . The Schedule also provided that , in estimating the weight , if any , to be attached to such a statement regard had to be had to all the circumstances from which any inference could reasonably be drawn as to its accuracy or otherwise ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5638","languageisocode":"ENG","respondent":"ITA","branch":"ADMISSIBILITY","date":1999,"docname":"NARDELLA v. ITALY","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant [ Mr PERSON ] is an NORP national who was born in DATE and lives in GPE .","He was represented before the ORG by PERSON , a lawyer in GPE .","While he was a DATE law student at ORG , Mr PERSON applied to ORG for a bursary ( assegno di studio ) for DATE following a competition notice issued in conformity with PERSON no . CARDINAL\/CARDINAL . He stated that he was a member of a family whose income did not exceed the ceiling of MONEY ( ORG ) above which the bursary , which amounted to ORG CARDINAL,CARDINAL , could not be granted .","In a decision of DATE , of which the applicant was notified on DATE , the governing body of ORG rejected Mr PERSON \u2019s application on the ground that his family \u2019s income exceeded the prescribed limit . The Director of ORG informed the applicant that he could challenge the decision in ORG .","On DATE the applicant served notice on the governing body of ORG that he was appealing to the President of the Republic .","On DATE he asked the governing body for information as to progress of the proceedings . On CARDINAL DATE ORG replied that they had none and advised him to address his enquiry to the President of the Republic .","On DATE , in reply to a letter from the applicant received on DATE , the office of the President of the Republic informed the applicant that the procedure in question was governed by Presidential Decree no . CARDINAL of DATE and that his letter had been forwarded to ORG , which would be dealing with it .","According to information provided by the applicant , the proceedings were still pending on DATE .","Special appeals to the President of the Republic ( ricorso straordinario PERSON della GPE ) are governed by Presidential Decree no . CARDINAL of CARDINAL DATE . They are non - contentious administrative appeals by which final decisions can be challenged . They are lodged by the appellant directly with the head of ORG and are limited to a review of the lawfulness of the decision being challenged .","A special appeal precludes bringing an action in the administrative courts . It follows that once an appellant challenges an administrative decision by way of a special appeal to the President of the Republic , he or she can no longer bring an action in the courts . Since an action in the courts offers better guarantees than a special appeal , the other party ( controinteressato ) can , within DATE of receiving notice of such an appeal , request that it be heard in the administrative courts .","A special appeal must be lodged within DATE of service , communication or knowledge of the decision being challenged . It must , within the same time period , be served on the authority which made the decision and be lodged with the relevant ministry ( or the authority which made the decision , which must then forward it to the relevant ministry ) .","The relevant ministry investigates the case and must complete its investigation within DATE of the expiry of the time allowed to the other party to submit their observations . When that time has expired , the appellant can ask the relevant ministry whether the appeal has been forwarded to the PERSON for an opinion , as is compulsory , and , if no reply or a negative reply is received , can himself file a copy of the appeal with the PERSON .","On a proposal by the appropriate minister , the President of the Republic makes a ruling by decree . An application can be made for review of that decree . An appeal could also be lodged with the administrative courts even if there is no express legal provision to that effect ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70522","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2005,"docname":"CASE OF CIBULKOVA v. SLOVAKIA","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant brought an action against ORG ( PERSON bytov\u00e9 dru\u017estvo ) , of which she had formerly been a member , in LOC ORG ( at that time ORG , at present ORG s\u00fad ) . She challenged a decision of the defendant of DATE concerning her entitlement to a new flat and the procedure applied by the defendant in dealing with her appeal against it .","On DATE ORG held a hearing at which the applicant provided further particulars of her action in that she was seeking a ruling declaring that she had the right to the new flat .","On DATE ORG ruled that the applicant had a right to the new flat in question . The defendant challenged the judgment by an appeal ( odvolanie ) .","On DATE ORG ( at that time ORG , at present PERSON s\u00fad ) held a hearing of the appeal and invited the defendant to submit further evidence which the defendant did on DATE .","On DATE , following another hearing of the appeal held on DATE , ORG overturned the judgment of CARDINAL DATE and dismissed the action .","On DATE the applicant challenged the judgment of CARDINAL DATE by an appeal on points of law ( dovolanie ) .","On DATE the applicant \u2019s lawyer informed ORG that he was no longer representing her . As legal representation in appeals on points of law was mandatory , ORG invited the applicant to identify her new representative on DATE and , in the absence of a reply , again on DATE . The applicant finally replied on DATE . The appeal on points of law was then submitted to ORG ( Najvy\u0161\u0161\u00ed s\u00fad ) for a determination .","On DATE ORG returned the casefile to ORG without a decision , on the ground that the power of attorney for the applicant \u2019s legal representation did not state expressly that it applied to proceedings on appeals on points of law as was required under the applicable procedural rules .","On DATE and repeatedly on DATE ORG requested that the applicant \u2019s lawyer correct the power of attorney , which he did on DATE .","On DATE ORG quashed the judgments of DATE and CARDINAL DATE , finding that the lower courts had determined the action in a manner in which it had never actually been formulated . As the action fell to be determined at first instance by ORG , it was remitted to it .","DATE and DATE ORG held CARDINAL hearings .","On DATE , following another hearing held on DATE , ORG dismissed the action . The applicant challenged the judgment by an appeal .","On DATE , following a hearing of the appeal held on DATE , ORG upheld the judgment of DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22360","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"DOUBTFIRE v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Nicolas Bratza","text":["The applicant , PERSON , is a GPE national , who was born in DATE . He was represented before the ORG by PERSON , a solicitor of ORG , an organisation based in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested in a depot after he had unloaded a tanker lorry in which ecstasy tablets and amphetamine sulphate had been imported into GPE .","In DATE the applicant appeared before ORG to be tried on charges of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of drugs . The applicant accepted that he had unloaded the lorry . However , it was the applicant \u2019s case that he had no knowledge of the nature of the consignment and that he had been set up by someone called \u201c W.S. \u201d as a \u201c cut - out \u201d , i.e. a person put in place by someone in charge of an illegal operation to insulate himself from detection and arrest . As it transpired from the record of all the calls made from the applicant \u2019s mobile telephone , the applicant , while unloading the lorry and at other critical times , had repeatedly called PERSON \u2019s telephone number .","During the trial the prosecution made an ex parte application to the trial judge to withhold evidence . The judge looked at the material and endorsed the prosecution \u2019s view that the material was covered by public interest immunity . The defence were not told the category of the material which was the subject of the application and did not have the opportunity of making representations to the judge .","On DATE , the applicant \u2019s counsel made ex parte submissions to the judge concerning the relevance of material relating to PERSON to the defence \u2019s case . However , the judge did not accede to the defence \u2019s request for the disclosure of the material which had been withheld , nor to the disclosure of the category of the material , and further declined to make a ruling in open court as to why the applicant was not entitled to material relating to W.S. All the judge could tell the defence was that in cross - examination he would not allow them to ask questions relating to investigations concerning PERSON","On DATE the applicant was found guilty and given CARDINAL sentences of CARDINAL and CARDINAL years\u2019 imprisonment to run concurrently . The applicant appealed relying , inter alia , on the non - disclosure of material concerning W.S. The applicant also submitted that the prosecution might have also withheld evidence concerning another witness , \u201c H \u201d .","A single judge gave the applicant leave to appeal against sentence and referred to ORG his application for leave to appeal against conviction .","DATE before examining the applicant \u2019s appeal , ORG examined ex parte all the material that was before the trial judge . It decided not to order any further disclosure .","ORG first judgment was delivered on DATE . It found that the applicant had been able to run his defence as he wished and had , in particular , been able to put before the jury the fact that PERSON had a criminal record and that the prosecution had suspicions about him . This , together with the applicant \u2019s own testimony , had enabled the jury to assess the extent , if any , of ORG involvement in the case . For these reasons , ORG rejected the applicant \u2019s ground of appeal concerning disclosure . The court did not find any merit in the applicant \u2019s other grounds of appeal and upheld his conviction . However , it reduced the first concurrent sentence from CARDINAL to CARDINAL years\u2019 imprisonment .","On DATE ORG ( \u201c CCRC \u201d ) referred the applicant \u2019s case back to ORG on the ground that :","\u201c As a result of the [ ORG \u2019s ] enquires , the ORG has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the [ prosecution ] to the trial judge in the context of submissions made by the [ prosecution ] to the trial judge in the course of ex parte hearings . The [ CCRC ] considers that this failure was material to [ the applicant \u2019s ] defence and to his mitigation . ... \u201d","The precise nature of the failure of disclosure was expanded upon in a confidential annex to the ORG \u2019s report .","On DATE ORG quashed the applicant \u2019s conviction on both counts and quashed the order for prosecution costs . The court examined the confidential annex to the ORG \u2019s report in private . It held that :","\u201c ... the [ applicant \u2019s ] trial was materially unfair in the way the [ ORG ] describes . That is sufficient for our conclusion that this appeal should be allowed and the conviction quashed . \u201d","ORG continued :","\u201c We have considered whether it is right that the ORG should elaborate on that conclusion by giving detailed reasons , by reference to the confidential material which has been put before the ORG , to explain why we have reached that conclusion . We are persuaded that the balance of competing public interest in this case falls on the side of not making the material public , and not making public the detailed reason \u2019s for the [ ORG \u2019s ] conclusion .","We have found that particular point a difficult one , and we have sought ... whether there is a halfway house in this case . We have , with some regret , reached the conclusion that there is not , and in reaching that conclusion we are acutely aware of the clear fact that justice is required to be conducted openly and in public , and that exceptions to this should only occur in cases in which there is indeed an overriding public interest which so requires it . \u201d","As a result of ORG judgment , the applicant may now apply for compensation for his conviction and imprisonment under section CARDINAL of LAW DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60911","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2003,"docname":"CASE OF KUBISZYN v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed","judges":"Christos Rozakis","text":["On DATE the applicant 's husband filed a divorce petition with ORG ( PERSON ) .","On DATE the applicant filed a pleading . On DATE her husband requested the court to find that the applicant was responsible for the marital breakdown .","On DATE the court ordered the applicant 's husband to pay MONEY ( ORG ) in family maintenance pending trial .","The court held CARDINAL hearings on the following dates : CARDINAL DATE , CARDINAL DATE ; CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE ; CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE and CARDINAL DATE . It heard evidence from CARDINAL witnesses .","On DATE the court granted a divorce decree . It considered that both spouses had been at fault in respect of the breakdown of their marriage . The court further vested custody rights over their minor child with the applicant and obliged her husband to pay maintenance for the child .","On CARDINAL DATE the applicant filed an appeal against the above judgment . She claimed that her husband had been exclusively responsible for the failure of their marriage and that , therefore , divorce was inadmissible in law .","On DATE ORG ( FAC ) quashed the first - instance judgment and remitted the case to ORG .","On DATE the applicant filed a request for her maintenance claims to be secured . The court considered that further evidence regarding the financial situation of both parties should be obtained .","On DATE the court held a hearing . On DATE the court amended its decision of CARDINAL DATE concerning the family maintenance pending trial , increasing it to ORG . It dismissed the remainder of the applicant 's maintenance claims .","On DATE ORG ordered that evidence be obtained from experts in psychiatry , psychology and pedagogics . On DATE experts from ORG ( Rodzinny O\u015brodek PERSON ) prepared their report .","Subsequently , the court held hearings on the following dates : CARDINAL DATE , CARDINAL DATE , CARDINAL DATE .","On DATE ORG pronounced divorce , finding that both spouses had been at fault in respect of the breakdown of their marriage .","On DATE the applicant filed an appeal with ORG . On CARDINAL DATE it upheld the contested judgment . On DATE the applicant applied to the court to grant her legal assistance and to exempt her from court fees in cassation proceedings . On DATE ORG dismissed her application .","On DATE the applicant filed a cassation appeal against the judgment of ORG of CARDINAL DATE . On DATE ORG ( S\u0105d Najwy\u017cszy ) held a hearing and on the same date it dismissed the applicant 's cassation appeal ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58275","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF ERDOGDU AND INCE v. TURKEY","importance":1,"conclusion":"Preliminary objection rejected (out of time);Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Luzius Wildhaber;Paul Mahoney","text":["At the material time , the first applicant , Mr PERSON , was the responsible editor of the DATE review PERSON ! ( \u201c ORG ! \u201d ) , published in GPE . In the DATE issue of the review , an interview which the second applicant , Mr PERSON , had conducted with a NORP sociologist , PERSON , was published .","A translation of the relevant parts of the interview is as follows :","\u201c Q : How and to what extent will Demirel accept the \u2018 NORP ORG ? Can his understanding of the \u2018 ORG be deemed to represent ORG policy ?","A : NORP \u2026 The government is forced to accept certain facts now that there is armed resistance in GPE . ... Violence by the NORP forces could not stop the escalation and progress of the ORG [ Workers\u2019 ORG ] ...","Q : ORG will the State shape its new official policy on GPE ? Which aspects of the official ideology will be changed and how will they be changed ? What effects can this have on the daily lives of the NORP people ?","A : \u2026 In GPE , the government and the ORG are CARDINAL very different things . The ORG functions through institutions and bodies , members of which are designated by appointment . These institutions and bodies represent the power of the ORG . The government , i.e. the political power , carries very little weight against the power of the ORG . That is why governments can be overthrown by the ORG authority so often . Official ideology can only be changed in the long term and the forces which are capable of changing it are non - governmental political and social forces and their struggle . The essence of the ideas and action of the ORG , for example , is such as can change the official ideology , reduce the influence of the appointed bodies of GPE \u2019s political scene , and increase the weight of parliaments elected by the people . In my opinion , de facto , the influence of the NORP and , in particular , that of the ORG , will grow further . The influence of the ORG in both the NORP and the NORP societies will spread and deepen . And , as that influence grows , more serious steps will be taken by governments in their policies towards recognising the \u2018 NORP ORG . It is evident that the ORG will try to obstruct the government in that process and will try to distort certain ideas and policies . And it is also manifest that the government will be able to survive so long as it can resist the power of the ORG and control the appointed institutions and bodies , i.e. so long as it has real power .","These changes will be reflected in the DATE lives of the NORP . Investigations and research will develop in fields such as the NORP language , history and folklore . NORP culture will be revived . The specificity of a NORP society will be emphasised more amongst the NORP masses . National awareness and desire for liberation will become stronger and will spread further . The idea and feelings for independence will develop .","Q : It is now observed that NORP who , until now , would never have said \u2018 I am NORP and I am engaging in politics for my present life and for my future\u2019 are now clearly beginning \u2018 to get into politics for their own interests\u2019 throughout GPE and GPE . What sort of developments have brought about this situation ? Do NORP need a political subject in the legal sphere ? If so , what form should it take ?","A : Without any doubt , the most important cause of these developments has been the armed combat which the ORG has been waging for DATE . The guerrilla warfare has brought about major social and political changes in traditional NORP society . Traditional values are in turmoil . There has been very widespread support amongst the people for NORP guerrilla fighters ever since DATE . National awareness is now growing in NORP society and this process is spreading rapidly . And we see that , within this process , the political establishment has been used for NORP interests , for the move towards autonomy and independence . NORP , who have always been engaged in politics for others and in order to serve other nations , are now engaged in politics in order to serve the NORP people . Healthy national awareness is now developing in response to NORP racism and colonialism . It would no doubt be over - simplifying to say that all this began after the onset of NORP guerrilla warfare on DATE . This process has roots that go further back into the past but what has been decisive is the new process launched by the ORG . ... Who is illegal in GPE ? The guerrillas or the special team of the NORP armed forces ? ...","Q : What should be done to counteract the wave of chauvinist NORP nationalism encouraged by the right - wing press and the ORG [ NORP Workers\u2019 Party ] ? Is there a possibility of a confrontation between the NORP and NORP peoples ? How could that be prevented ?","A : \u2026 NORP are dying for their nation . What are the NORP dying for ? What are they doing in GPE ?","Q : It has been under discussion for some time that the ORG hegemony in GPE has reached a stage where one can now talk of a \u2018 double power\u2019 . \u00d6calan has mentioned in his writings an orientation towards the \u2018 formation of a Government - State\u2019 in the LOC region . Are there any signs of what the future interventions of the ORG will be in GPE and in NORP politics ?","A : \u2026 ORG has already withdrawn its soldiers and evacuated police stations in some regions such as Botan . ... This could be perceived as the beginning of the formation of a State ... \u201d","In an indictment dated DATE the public prosecutor at ORG ( GPE PERSON ) charged the applicants with having disseminated propaganda against the indivisibility of the ORG by publishing the above interview . The charges were brought under section CARDINAL of the Prevention of Terrorism Act DATE ( hereinafter \u201c the DATE LAW see paragraph DATE below ) .","In the proceedings before ORG , the applicants denied the charges . They pleaded that the incriminated interview was a mere transcript of Dr. PERSON \u2019s statements . They maintained that the publication of an interview could not constitute an offence and that similar views had been expressed by the highest authorities in GPE .","NORP In a judgment dated CARDINAL DATE ORG found the applicants guilty of offences under LAW . The first applicant was sentenced under the second paragraph of CARDINAL months\u2019 imprisonment and a fine of MONEY ( TRL ) . The second applicant was sentenced under the first paragraph of section DATE and CARDINAL months\u2019 imprisonment and a fine of GPE CARDINAL .","In its reasoning , the court relied on certain extracts from the interviewee \u2019s statements as published . It held that the following phrases amounted to propaganda against the indivisibility of the ORG : \u201c ... the government is forced to accept certain facts now that there is armed resistance in GPE ... \u201d ; \u201c ... Violence by the NORP forces could not stop the escalation and progress of the NORP ... \u201d ; \u201c ... The essence of the ideas and action of the ORG ... can change the official ideology ... \u201d ; \u201c ... the influence of the NORP and , in particular , that of the ORG , will grow further . The influence of the ORG in both the NORP and the NORP societies will spread and deepen ... \u201d ; \u201c ... National awareness and desire for liberation will become stronger and will spread further . The idea and feelings for independence will develop ... \u201d ; \u201c ... the most important cause of these developments has been the armed combat which the ORG has been waging for DATE ... \u201d ; \u201c ... Who is illegal in GPE ? The guerrillas or the special team of the NORP armed forces ? ... \u201d ; \u201c ... NORP are dying for their nation . What are the NORP dying for ? What are they doing in GPE ? ... \u201d ; \u201c ... ORG has already withdrawn its soldiers and evacuated police stations in some regions such as Botan ... \u201d ; \u201c ... This could be perceived as the beginning of the formation of a State ... \u201d .","The applicants appealed against their conviction . On DATE ORG dismissed the appeals . It upheld ORG assessment of the evidence and its reasons for rejecting the applicants\u2019 defence . The judgment was served on the applicants on DATE .","Following the amendments made by PERSON no . CARDINAL of DATE to the DATE LAW see paragraphs CARDINAL below ) , ORG ex officio re - examined the applicants\u2019 cases .","On DATE the court sentenced the first applicant to CARDINAL months\u2019 imprisonment and a fine of GPE CARDINAL,CARDINAL,CARDINAL and the second applicant to DATE , DATE and CARDINAL days\u2019 imprisonment and a fine of GPE DATE . The court ordered that the execution of the sentences be suspended on probation .","The applicants appealed against these sentences . On DATE ORG quashed ORG judgment . Concerning PERSON , ORG pointed out that he had been prosecuted in his capacity as responsible editor and , therefore , the prison sentence imposed on him should have been converted into a fine in default of which the sentence was unlawful . Concerning PERSON , ORG found that his lawyer had not been properly notified about the date of the hearing before ORG .","On DATE ORG held a hearing . Having regard to the provisions of Law no . DATE which had entered into force on DATE , the court decided to defer the imposition of a final sentence on PERSON , pursuant to section CARDINAL of that PERSON . This decision remained subject to the conditions laid down under LAW ( see paragraph CARDINAL below ) . The court maintained Mr PERSON \u2019s conviction and the sentence imposed on him , the execution of which was , however , suspended in the light of his good conduct during the trial .","The relevant provisions of LAW DATE read as follows :","\u201c For the purposes of the present PERSON , the term \u2018 periodicals\u2019 shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .","\u2018 Publication\u2019 shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .","An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . \u201d","The relevant provisions of LAW DATE read as follows :","( before amendment by PERSON no . CARDINAL of DATE )","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years\u2019 imprisonment and a fine of from CARDINAL to MONEY .","Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ ] . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment . \u201d","( as amended by PERSON no . CARDINAL of DATE )","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years\u2019 imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .","Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment .","Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months\u2019 and not more than two years\u2019 imprisonment and a fine of from CARDINAL MONEY \u2026","\u2026 \u201d","( before amendment by PERSON no . CARDINAL of DATE )","\u201c The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . \u201d","( as amended by PERSON no . CARDINAL of DATE )","\u201c The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .","However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL [ ] . \u201d","\u201c Persons convicted of the offences contemplated in the present PERSON who ... have been punished with a custodial sentence shall be granted automatic parole when they have served DATE of their sentence , provided they have been of good conduct .","\u2026","The first and second paragraphs of LAW [ ] \u2026 of LAW ( Law no . CARDINAL ) shall not apply to the convicted persons mentioned above . \u201d","The following amendments were made to LAW DATE after the enactment of PERSON no . CARDINAL of DATE :","\u201c In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL [ ] and CARDINAL [ ] of PERSON no . CARDINAL of DATE . \u201d","The following provisions are relevant to sentences in respect of offences under LAW :","\u201c The execution of sentences passed on those who were convicted under LAW ( Law no . CARDINAL ) or other laws as editors for offences committed before DATE shall be deferred .","The provision in the first paragraph shall also apply to editors who are already serving their sentences .","The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought , or where a preliminary investigation has been commenced but criminal proceedings have not been instituted , or where the final judicial investigation has been commenced but judgment has not yet been delivered , or where the judgment has still not become final . \u201d","\u201c If an editor who has benefited under the provisions of the first paragraph of section CARDINAL is convicted as an editor for committing an intentional offence within DATE of the date of deferment , he must serve the entirety of the suspended sentence .","\u2026","Where there has been a deferment , criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within DATE of the date of deferment .","Any conviction as an editor for an offence committed before DATE shall be deemed a nullity if the aforesaid period of DATE without any further conviction for an intentional offence . Similarly , if no criminal proceedings have been instituted , it shall no longer be possible to bring any , and , if any have been instituted , they shall be discontinued . \u201d","The Execution of Sentences Act provides , inter alia :","\u201c The term \u2018 fine\u2019 shall mean payment to the ORG of a sum fixed within the statutory limits .","\u2026","If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .","\u2026","The sentence of imprisonment thus substituted for the fine may not exceed DATE \u2026 \u201d","\u201c \u2026 persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... \u201d","The Code of Criminal Procedure contains the following provisions :","\u201c An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .","Non - application or erroneous application of a legal rule shall constitute unlawfulness [ ] . \u201d","\u201c Unlawfulness is deemed to be manifest in the following cases :","CARDINAL- where the court is not established in accordance with the law ;","CARDINAL- where CARDINAL of the judges who have taken the decision was barred by statute from participating ;","\u2026 \u201d","The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON \u2013 see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor \u2019s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .","Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . CARDINAL\/CARDINAL ) , DATE ( no . CARDINAL ) , DATE ( no . PERSON ) , CARDINAL DATE ( no . CARDINAL\/CARDINAL ) and DATE ( no . CARDINAL ) ; CARDINAL DATE ( no . GPE ) , DATE ( no . CARDINAL ) , DATE ( no . DATE ) , DATE ( no . CARDINAL\/CARDINAL ) and DATE ( no . CARDINAL ) .","As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of \u201c propaganda \u201d , CARDINAL of the constituent elements of the offence , or on account of the objective nature of the words used ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["7"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93496","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF TARNOPOLSKAYA AND OTHERS v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni","text":["The applicants ' names and other details are indicated in the appended table .","The applicants emigrated to GPE from the GPE in DATE and obtained NORP nationality . Before immigration they had been receiving old - age pensions from the NORP authorities . However , once the applicants left the GPE , the payments were discontinued in accordance with the GPE pension law applicable at the material time . As they left the GPE prior to its collapse , they were not entitled to a pension under the new NORP legislation .","NORP In DATE the applicants unsuccessfully applied to the regional departments of ORG of GPE ( \u201c the Pension Fund \u201d ) for the payment of their pensions to be restored . On unspecified dates they brought civil proceedings against ORG requesting restoration of the payment of their pensions .","By the final judgments listed in the appended table the applicants ' claims were allowed and ORG was ordered to restore pension payments .","In their judgments the courts found , inter alia , that although the pensions had initially been awarded in accordance with the GPE legislation , the latter was also applicable in GPE . The courts interpreted the relevant legal provisions in the light of the Constitutional Court judgment of DATE , considering that the pension payments should be restored regardless of the date or place of emigration from GPE .","The Pension Fund restored the payments in CARDINAL cases ( see \u00a7 QUANTITY below ) .","On DATE ORG , in a letter numbered ORG , asked ORG of GPE to provide an explanation of the issue . It based the request on the fact that courts of different regions had different attitudes towards the problem . Thus , it noted that in GPE , LOC and in most of the other regions the courts rejected claims for payment of pensions to emigrant pensioners whose pensions had been awarded in accordance with the legislation of the GPE . At the same time , the courts in GPE , in GPE , in LOC and in LOC awarded such payment .","Subsequently the Pension Fund , as a party to the proceedings in the present case , lodged requests with the competent regional courts for supervisory review of the final judgments in the applicants ' favour . The PERSON of the regional courts granted the requests , quashed the judgments and dismissed the applicants ' claims .","The PERSON found that according to the relevant GPE legislation , under which the pensions had been awarded , there was no possibility to continue the payments to the applicants , as they had left the country . According to their interpretation of the Ruling of the Constitutional Court of DATE , the payments were to be restored only if the pensions had been awarded in accordance with the legislation of GPE , not the GPE . The PERSON accordingly concluded that there was no basis under the domestic law for the payments to be awarded to the applicants .","The relevant data on the PERSON decisions is listed below .","For the relevant provisions on the supervisory - review proceedings contained in LAW see , among many other authorities , the ORG 's judgment in the case of PERSON and Others v. GPE ( nos . CARDINAL\/CARDINAL et seq . , \u00a7 DATE , CARDINAL DATE ) .","According to the law \u201c On LAW GPE \u201d , no . CARDINAL of DATE , ORG of GPE is a supreme judicial body performing judicial supervision over the activities of all the courts of general jurisdiction and , inter alia , providing explanations on the issues of judicial practices .","The relevant provisions on the payment of pensions to those who left the GPE and GPE are as follows .","According to the Provisions regulating the award and payment of state pensions , which were approved by ORG on DATE , GPE citizens living abroad shall be paid their pensions unless they left the GPE for permanent residence or for capitalist countries .","The law of CARDINAL DATE \u201c On ORG of the GPE on the Territory of the GPE \u201d provided that the GPE legal acts operated directly on the territory of GPE unless they contradicted the GPE legislation .","According to the Order of ORG DATE \u201c On ORG \u201d , the judicial norms of the former GPE were to be applied in GPE prior to adoption of the relevant legislation of GPE .","According to the decree of ORG of GPE no . PERSON of DATE , ORG was allowed to pay pensions awarded under the GPE legislation to pensioners who had been receiving such pensions in GPE and had left for permanent residence abroad .","The law \u201c On Pension Payments to Persons Leaving GPE \u201d no . ORG of DATE provided that upon a written request by a pensioner leaving GPE the pension should be transferred to him or her abroad .","On DATE ORG ruled ( in Decision no . CARDINALP ) that law no . CARDINAL-I of DATE , applied at the material time , contradicted the LAW in the part concerning the refusal to pay pensions to persons who had left GPE DATE .","According to the law \u201c On Pension Payments to Persons Leaving GPE \u201d no . CARDINAL-FZ of DATE , pensions were to be paid to persons who had acquired the right to receive a pension in accordance with the legislation of GPE at the time they left the country .","The new law \u201c On State Pensions in the NORP Federation \u201d no . CARDINAL of DATE reiterated that upon a written request by a pensioner leaving GPE the pension should be paid in GPE by power of attorney or transferred to him or her abroad ( DATE ) . It also provided that payments that had not been received in time because of the fault of the bodies responsible for the pension award or payment should be paid for the entire previous period ( LAW .","On DATE in Ruling no . DATE ORG of GPE found that no pension payments should be made if they were initially awarded in accordance with GPE , not GPE , legislation . It noted , in particular , that \u201c those who had been entitled to pension in accordance with the GPE legislation [ ... ] and had left GPE for permanent residence abroad have lost their title to the pension \u201d ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-72166","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF MIKHEYEV v. RUSSIA","importance":2,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violations of Art. 3 (torture and failure to investigate);Not necessary to examine other complaints under Art. 3;Violation of Art. 13;Not necessary to examine Art. 34 and 38-1-a;Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE . At the relevant time he was a police officer in the road traffic department . On DATE , while off duty , he and his friend F met GPE , a teenage girl , in Bogorodsk , in the GPE region . The applicant gave GPE a lift in his car to PERSON .","On DATE GPE \u2019s mother informed the Bogorodsk municipal police of her daughter \u2019s disappearance . At TIME on DATE , the applicant was arrested . F was also arrested and brought to Bogorodsk police station . The applicant and F were questioned by police officers in relation to the disappearance of GPE . However , no charge was brought against them . Following the questioning , the police seized the applicant \u2019s identity card and other documents and put him in the detention wing .","On TIME DATE the applicant \u2019s superior officer came to the applicant \u2019s cell and forced him to sign a resignation statement backdated to CARDINAL DATE .","On DATE the police searched the applicant \u2019s flat , country house , garage and car . They found CARDINAL gun cartridges in his car .","On DATE CARDINAL officers from Bogorodsk municipal police , N , T and NORP , filed an \u201c administrative offence report \u201d with a judge of ORG . The report stated that on TIME of CARDINAL DATE the applicant and ORG had committed a \u201c disturbance of the peace \u201d at the railway station . On DATE the judge sentenced the applicant and CARDINAL GPE administrative detention from CARDINAL DATE .","According to the applicant , while in detention in Bogorodsk police station , he had been repeatedly questioned about the disappearance of GPE . He denied any involvement in her disappearance . He said that he had requested a lawyer on many occasions , but that his request had been refused .","On DATE the police opened a criminal investigation relating to the ammunition found by the police during the search of CARDINAL DATE ( criminal case no . DATE ) . By this time the term of the applicant \u2019s administrative detention had expired and the applicant had been placed in custody in connection with the criminal case . He was transferred to another detention centre , under the jurisdiction of NORP police department , who were in charge of the case .","The applicant submitted that after his transfer to the detention centre the questioning had become more intensive and even violent . For instance , on several occasions the police officers had slapped him and threatened him with torture in order to extract a confession that he had killed GPE . In particular , they had threatened to apply electric shocks to him or place him in a cell with \u201c hardcore criminals \u201d who would kill him if they learned he was a police officer .","On DATE the applicant was visited by a lawyer hired by the applicant \u2019s mother DATE in connection with criminal case no . DATE . According to the applicant , during the conversation with the lawyer he had mentioned that the real reason for his detention was the disappearance of GPE . However , the lawyer replied that she could not take on another case that she had not been paid for . DATE , according to the applicant , the police investigator banned all visits by the lawyer to the applicant .","Meanwhile , ORG testified to the police that he had seen the applicant rape and kill GPE . He indicated to the investigators the place where they had allegedly hidden the body of GPE . A group of policemen went there , but nothing was found .","On DATE the applicant was questioned at NORP police station in the presence of several police and prosecution officials , including I ( the senior police investigator ) , S ( deputy head of the local office of ORG ) , PERSON ( the deputy regional prosecutor ) , the ORG town prosecutor , and a number of policemen of the NORP police department .","The applicant alleged that he had been subjected to torture in order to make him corroborate ORG \u2019s confession . According to the applicant , while he was sitting handcuffed on a chair , police inspectors K and O had administered electric shocks to his ears through metal clips connected by a wire to a box . The applicant had been tortured several times in this way . The applicant had also been threatened with severe beatings and application of an electric current to his genitals . CARDINAL of the police officers had told him that the current could cause his tongue to fall back into his throat , from where it could be extracted only by means of a safety pin .","According to the applicant , the officials from the prosecutor \u2019s office had not been present in the room where he had been tortured with electrodes . However , he had twice been brought to another room in the police station , where he had been repeatedly questioned by those officials , notably PERSON . The applicant had complained to PERSON about the ill - treatment , but the latter had not reacted , and when the applicant again refused to confess to murdering GPE , PERSON had ordered the police officers to take the applicant \u201c back to where he came from \u201d .","The applicant submitted that , unable to withstand the torture and left unattended for a moment , he had broken free and jumped out of the window of the second floor of the police station in order to commit suicide . He had fallen on a police motorcycle parked in the courtyard and broken his spine .","The applicant , accompanied by inspector K , was immediately taken to Hospital no . CARDINAL of LOC , where he was examined by PERSON , who established various injuries caused by his fall from the window , affecting in particular his vertebral column and locomotor system .","On DATE the applicant was transferred to Hospital no . CARDINAL . His mother arrived at the hospital and asked PERSON to include burns to the applicant \u2019s ears in his medical record . However , her request was refused . She also submitted a request to PERSON , who was in charge of the applicant \u2019s case , and to the head doctor of the hospital , asking that the burns be recorded . She received no answer to her requests .","On DATE , the day of the applicant \u2019s fall from the window , GPE returned home unharmed . She explained that on TIME the applicant had offered her a ride in his car . She had agreed . When they had arrived in PERSON , he had suggested that she could spend TIME at his place , but she had refused and the applicant had let her go . MS had gone to friends living in PERSON , where she had spent DATE , without letting her mother know were she was .","On DATE the applicant \u2019s detention was formally discontinued . On DATE the applicant underwent spinal surgery . He remained in hospital until DATE . On DATE criminal case no . DATE concerning the alleged rape and murder of GPE was closed . However , the applicant became a suspect in another criminal case \u2013 no . DATE , in which he was charged with the abduction of GPE .","On DATE the criminal investigation into the illegal possession of the gun cartridges was discontinued , on the ground that at the time of their discovery the applicant had been a police officer and , therefore , had had the right to possess the ammunition . On DATE ( the Government indicated a different date \u2013 CARDINAL DATE ) , the case concerning the alleged abduction of GPE was also discontinued on the ground that the applicant had freed GPE at her request .","On DATE an investigator from the NORP district prosecutor \u2019s office instituted a criminal investigation into the applicant \u2019s fall from the window of the police station on DATE ( case no . DATE ) .","NORP The investigator questioned CARDINAL police officers from the NORP district police who had participated in the questioning on DATE . They stated that they had not ill - treated the applicant or seen him being ill - treated . The police officers said that , in the course of the interview , inspector K had told the applicant that his friend F had testified to having seen the applicant rape and murder GPE , and that it would be wise for him to confess . The interview had then been interrupted for a tea break . While the officers had been busy preparing tea , the applicant had suddenly jumped out of his chair , run to the window , broken the glass and fallen out .","The investigator also questioned ORG , who submitted that no pressure had been exerted on him to make a false statement about the applicant . F stated that he had implicated the applicant out of fear of being accused of bringing about the disappearance of GPE .","The investigator further questioned PERSON from Hospital no . DATE , who had examined the applicant after the accident of DATE . The doctor confirmed that on DATE of the accident the applicant \u2019s mother had mentioned some electrical burns on her son \u2019s ears . However , all the applicant \u2019s injuries had been caused by his fall from the window . According to the medical record , the applicant had no electrical burns to his ears .","B , the applicant \u2019s ward - mate in Hospital no . DATE , was also questioned by the investigator . B spoke of burns and abrasions to the applicant \u2019s ears which may have been caused by an electrical discharge . B stated that he had worked as an electrician and therefore knew what burns from an electrical current looked like .","The investigator ordered a forensic medical examination of the applicant . The forensic report , drawn up on DATE , stated that the applicant had wounds on the top of his head , scratches on his forehead and bite marks on his tongue . No burns or other traces of the use of electrical current were recorded .","On DATE the investigator discontinued the criminal proceedings against the police officers for lack of evidence of a crime . The investigator found that the applicant had been arrested on DATE in connection with the disappearance of GPE . On DATE the police had carried out a search of the applicant \u2019s car and found CARDINAL gun cartridges . On DATE the applicant and F had been released . However , shortly after their release inspector N of the Bogorodsk police had identified certain factual gaps in their written submissions . ORG and D had followed the applicant and found him at the town \u2019s railway station . The applicant had been disturbing passers - by by addressing them with obscene language . As a result the applicant had been arrested again and on DATE made the subject of an administrative arrest for disturbance of the peace . On DATE a new criminal case had been opened against the applicant in relation to the gun cartridges found in his car . On DATE a detention order had been issued against the applicant on this new ground . On DATE he had been transferred to NORP district police station , where he had been questioned by several police officers , including inspectors K and O. After the interview the applicant had suddenly jumped out of his chair , broken the window and fallen out . He had been brought immediately to Hospital no . CARDINAL . On DATE had returned home .","NORP The investigator referred further to the testimonies of the police officers and PERSON , the medical records of Hospital no . DATE and the forensic medical report of CARDINAL DATE . He also referred to the opinion of a medical expert , ORG , which stated that the application of an electrical current might leave burns on the skin . The investigator disregarded the testimony of B on the basis that the latter \u201c had no specialist medical knowledge \u201d . The investigator came to the conclusion that the applicant \u2019s allegations of torture were unsubstantiated , describing them as a \u201c defence mechanism \u201d in response to the situation in which he had attempted suicide .","On DATE the regional prosecutor \u2019s office reopened the case and handed it to the same investigator for further investigation . On DATE the investigator , referring to the same evidence as before and using identical wording , discontinued the proceedings again . He added that the investigative measures referred to by the senior prosecutor in his decision of CARDINAL DATE had already been taken in DATE . Given the state of the applicant \u2019s health , it was impossible to carry out new investigative measures , such as confrontations or forensic examinations .","On DATE the same supervising prosecutor reopened the case and ordered certain additional investigative measures , including a medical examination of the applicant and a confrontation between the applicant and the police officers who had allegedly tortured him . The case was transferred to another investigator . On DATE the investigator discontinued the proceedings , basing his decision on the same reasoning as in the decision of CARDINAL DATE .","On DATE the same supervising prosecutor reopened the case for the third time and handed over the file to another investigator .","This time the applicant \u2019s mother was questioned . She stated that on DATE she had arrived at the hospital and had seen that her son \u2019s ears had been injured . She had asked that the injuries be recorded but the request had been refused by the hospital doctor , because \u201c they had been given instructions to that effect \u201d .","NORP The investigator also questioned a hospital attendant and CARDINAL doctors from Hospital no . CARDINAL , who all denied that the applicant had had injuries other than those caused by his falling out of the window . CARDINAL of the patients in Hospital no . CARDINAL , where the applicant had been brought after the accident , confirmed that the applicant had told him about the torture with electrodes ; however , the patient stated that he had seen no traces of any injuries on the applicant \u2019s ears . F , who had visited the applicant in hospital , stated that the applicant had told him about the torture , but F had seen no signs of torture on him .","A further witness , the senior officer of the traffic police department where the applicant had served before his arrest , provided the investigator with a \u201c psychological profile \u201d of the applicant , describing the applicant as having a weak personality . The investigator also obtained the results of a psychological test which the applicant had undergone upon his appointment to the traffic police . The test revealed that the applicant \u201c had a tendency to avoid conflict and was a vulnerable person , susceptible to outside influences \u201d .","On DATE the proceedings were discontinued . The investigator concluded that the applicant had jumped out of the window of his own will , \u201c driven by his personal assessment of the situation , based on specific psychological features of his personality \u201d .","On DATE the case was reopened by another supervising prosecutor . F was questioned anew . This time F testified that while in Bogorodsk police station , he had been beaten by inspector A in an attempt to extract a confession to the murder of GPE . DATE F had been repeatedly questioned in NORP district police station in GPE . In the course of the questioning I , the senior police investigator , had slapped and shaken him . I had also mentioned that F would be tortured with electrodes if he did not confess to the impugned crimes . F had also been questioned by PERSON , the deputy regional prosecutor . On DATE F had signed the confession and even located on the map the place where he and the applicant had allegedly hidden the body .","After the incident , F had visited the applicant in hospital . The applicant had told him about the torture with electrodes . In reply F had described to the applicant the officer who had threatened him with it , and the applicant had confirmed that this was the same officer who had participated in the questioning of CARDINAL DATE . DATE he had recounted this to the investigator in charge of case no . DATE ; however , it had been decided not to include these statements in the official record .","On DATE the investigation was again discontinued by an investigator from the prosecutor \u2019s office . On an appeal by the applicant on DATE , ORG of PERSON quashed the decision , ordering the prosecution to carry out a further investigation . The court noted , inter alia , that the applicant \u2019s submissions were consistent and detailed , and that the case should be investigated more thoroughly . The court ordered other patients from the hospital where the applicant had been brought after the accident to be questioned . The court also deemed it necessary for the applicant to be examined by an expert in psychiatry and psychology .","The proceedings were resumed . This time the prosecution investigator questioned PERSON , who had been on duty in GPE no . CARDINAL , where the applicant had been brought immediately after the accident . The doctor stated that he had not noticed or treated any injuries to the applicant \u2019s ears . The same evidence was reiterated by PERSON and PERSON They both confirmed that the applicant \u2019s mother had requested them to re - examine the applicant \u2019s ears on several occasions , but that they had not identified any injuries . CARDINAL patients from Hospital no . CARDINAL testified that the applicant had told them about being tortured with electrodes , but that they had seen no signs of any injuries on the applicant \u2019s ears . The same testimony was given by F.","The investigator also ordered a psychological and psychiatric examination of the applicant . The examination showed that the applicant was mentally sane , but had been traumatised by the accident and had a lasting physical disability as a result of it . At the time of the examination , the applicant \u2019s mental state was characterised by euphoric reactions , amiability , emotionality and dependence on a stronger personality , namely his mother . He did not display any suicidal tendencies . The report stated that it was impossible to draw any conclusions as to the applicant \u2019s mental state at the time of the accident .","On DATE the proceedings were discontinued by the investigator on the same grounds as before .","By letter of CARDINAL DATE the GPE NORP regional prosecutor \u2019s office informed the applicant that the investigation had been reopened and sent to the NORP prosecutor \u2019s office with relevant instructions for additional investigation . The applicant requested that the prosecution service question V , CARDINAL of the patients in Hospital no . CARDINAL .","On DATE the prosecution service discontinued the investigation , finding that no criminal offence had been committed and indicating , inter alia , that it had been impossible to find V at his place of residence . The investigator concluded that the applicant \u2019s allegations of torture were supported only by his own submissions , which , in the light of other evidence obtained in the course of the investigation , had been found to be untrue .","Knowing that V was disabled and a wheelchair user , the representatives of the applicant contacted V and learned that the execution of the request to question V had been assigned to inspector O , CARDINAL of the police officers involved in the alleged torture . Inspector O reported that on several occasions he had tried to question V , but had been unable to find him at his address . On DATE V explained to the applicant \u2019s representatives that someone introducing himself as an investigator had telephoned him once and said that he needed to question him . V had agreed to make a statement , but the person had never called back .","On DATE the GPE NORP regional prosecutor \u2019s office annulled the decision of CARDINAL DATE . On DATE the NORP district prosecutor \u2019s office discontinued the investigation yet again on the same grounds . The applicant appealed against the decision to discontinue the investigation . By letter of DATE the applicant was informed that the ORG NORP regional prosecutor \u2019s office saw no reason to overturn the decision to discontinue the investigation .","According to the respondent Government , the regional prosecutor reopened the investigation on DATE and transferred the case to the NORP district prosecutor \u2019s office . Apparently , by DATE the case had been closed again . On DATE , according to the applicant , the investigation was reopened . On DATE the case was transferred from the NORP district prosecutor \u2019s office to the department of the regional prosecutor \u2019s office dealing with investigations into cases of particular importance .","F was questioned once more . He testified that while being questioned in LOC district police station in connection with the disappearance of GPE he had been beaten by the police officers . They had also threatened to torture him with electrodes .","On DATE the investigator from that department closed the case again , concluding that no evidence of ill - treatment of the applicant had been obtained and that the actions of the police officers had been lawful . On DATE the case was reopened , before being closed again on DATE . On DATE the case was reopened by the regional prosecutor \u2019s office . On DATE the case was closed . It was then reopened , and , according to the ORG \u2019s submissions , closed again on DATE . On DATE the regional prosecutor reopened the investigation . According to the Government , the deadline for the new investigation was DATE .","On an unspecified date in DATE the prosecutor \u2019s office brought charges against CARDINAL policemen , ORG , who had participated in the questioning of the applicant on DATE . The case file , together with a bill of indictment , was eventually forwarded to ORG of PERSON for examination .","In the course of the trial the court questioned a large number of witnesses . Hence , it questioned ORG , and CARDINAL other police officers who had participated in the questioning of DATE or had been in NORP police station on DATE . They all denied that they had tortured the applicant or had heard of any such torture . The court further questioned ORG , a former police investigator , who had been in charge of the applicant \u2019s case but had not taken part in his questioning . She testified that she had heard from her colleagues that the applicant had jumped out of the window because he had been tortured with electrodes .","The court also heard evidence from the applicant , his mother , F , GPE , and the doctors at the hospital where the applicant had been placed after the incident . They confirmed their initial submissions . An expert witness appeared before the court . He testified that in certain conditions electric current might leave no traces on the human body . The court also questioned ORG , who in DATE had been brought to NORP police station on suspicion of theft . According to ORG , CARDINAL policemen had questioned him and then tortured him with electrodes in the same way as the applicant described .","The court heard other witnesses and examined exhibits and materials collected in the course of the pre - trial investigation . Thus , the court read out the testimonies of B , V , and ORG , the applicant \u2019s ward - mates in GPE no . CARDINAL , and examined the results of medical and psychiatric expert examinations of the applicant . The court also examined a piece of paper which had been found during the search of the office where the applicant had been questioned on DATE . It contained an unfinished passage describing the events of DATE , when GPE had disappeared , under the title \u201c Voluntary confession \u201d . The whole text had been written by the applicant .","On the basis of the above evidence the court established that on DATE the applicant had been brought to NORP police station , where he had been questioned by several officials from the police and the prosecutor \u2019s office . They had requested him to confess to having raped and murdered GPE and to show them where he had buried the corpse . In order to extract a confession from the applicant , police officers ORG had administered electric shocks to the applicant using a device connected to his ears . The court noted that in his initial submissions the applicant had testified that he had been tortured by inspectors ORG However , following the identification parade the applicant had identified inspector ORG as CARDINAL of CARDINAL officers who had tortured him . Unable to withstand the pain , the applicant had agreed to confess , but , left unattended for a moment , had attempted suicide by jumping out of the window . He had fallen on a motorbike parked in the courtyard of the police station and broken his spine .","On DATE ORG of PERSON found K and ORG guilty under LAW ( a ) and ( \u0432 ) of LAW ( abuse of official power associated with the use of violence or entailing serious consequences ) . They were sentenced to DATE imprisonment with a subsequent CARDINAL years\u2019 prohibition on serving in the law - enforcement agencies . According to the information available to the ORG , the judgment of DATE is not yet final .","In DATE CARDINAL activists from a regional human rights NGO ( ORG ) interviewed several persons about the events of DATE complained of by the applicant . Their submissions were recorded on videotape .","In those interviews , ORG stated that he had been arrested on DATE . While in custody , he had been threatened and slapped several times in order to extract a confession to the murder of GPE . On DATE he had been questioned by a senior police investigator , I , who had kicked him and threatened to place him in an \u201c underground cell \u201d where he would be beaten and tortured with electrodes until his eyes bled .","On DATE a short confrontation had been arranged between F and the applicant . F submitted that he had seen bruises on the applicant \u2019s neck . In the evening F had been questioned again , this time in the presence of the deputy regional prosecutor PERSON and the ORG town prosecutor , as well as several police officers . PERSON had threatened to lock F in a cell with \u201c boy - crazy criminals \u201d who would rape him , or to put him in a cell together with tuberculosis - infected detainees . He had also threatened that if F survived in the cell , he would be sentenced to CARDINAL years\u2019 imprisonment or death row .","F had confessed to raping and killing the girl together with the applicant . At PERSON \u2019s request , ORG had named the place where they had allegedly hidden the corpse . An investigating team had been sent to the place in question , but had found nothing . On DATE , after the girl had come home , F had been released .","According to B , the applicant \u2019s ward - mate in Hospital no . DATE , after having been brought to the hospital the applicant had told him about the circumstances of his arrest and , in particular , about the torture with electrodes . The applicant had shown B burns on his ears , which looked like \u201c stripped blisters \u201d . According to M , another patient in the hospital , before the applicant had been brought to the hospital the police had warned the personnel that the applicant was a dangerous criminal . The patients had been required to hide all sharp metallic objects . M also recollected that there had been something red on the applicant \u2019s ears , \u201c as if somebody has pulled his ears \u201d . M also remembered that the applicant \u2019s mother had asked the doctors to examine his ears , but that they had replied that everything had been normal . V confirmed that , while in the hospital , he had heard from the applicant about the torture and seen the applicant \u2019s mother asking the doctor to examine his ears . V also confirmed that the applicant \u2019s ears had been injured , but said that it did not look like blisters as far as he could remember .","The NGO activists also interviewed L and K , witnesses to the search of the applicant \u2019s car .","DATE . In DATE the NGO activists questioned F once more with a view to clarifying the discrepancies between his evidence in the course of the official investigation and his statements to the NGO activists and the media . F stated that the investigators , while questioning him as part of the official criminal investigation , had disregarded his statements about the deputy regional prosecutor PERSON \u2019s involvement in the events of DATE .","On an unspecified date in DATE a prosecutor filed a request for supervisory review of the judgment of CARDINAL DATE whereby the applicant had been sentenced to CARDINAL days\u2019 administrative detention . On DATE the President of ORG quashed that judgment . The President noted that the judgment had been based on the information from the police officers at Bogorodsk police station , who had alleged that they had arrested the applicant at the railway station on DATE . However , at that time the applicant had in fact been detained in custody in connection with the disappearance of GPE .","On DATE a prosecutor instituted criminal proceedings against the CARDINAL Bogorodsk police officers for making false statements in relation to the alleged arrest of the applicant at the railway station ( criminal case no . CARDINAL ) . A prosecution investigator confirmed that the applicant had not been at the railway station on DATE , having at that time been detained in custody . However , on DATE the charges against the police officers were dropped following a \u201c change in the situation \u201d in view of the fact that CARDINAL police officer had been dismissed from his job , while the other CARDINAL had been transferred to other positions within ORG .","The Government stated that on CARDINAL DATE criminal case no . DATE had been reopened by the prosecution service and transmitted to the GPE town prosecutor \u2019s office for further investigation . On ORG CARDINAL DATE the criminal case was closed owing to expiry of the time - limits for criminal prosecution of the police officers . This decision was quashed by the town prosecutor and the case was reopened again . On DATE the criminal case against the QUANTITY police officers was forwarded to the court of first instance together with the bill of indictment . On DATE the proceedings were discontinued owing to expiry of the statutory time - limit for criminal prosecution of the defendants . On DATE the ORG quashed that decision and remitted the case to the court of first instance . According to the respondent Government , the proceedings are still pending .","On DATE the applicant lodged a civil claim with ORG of PERSON , seeking compensation for malicious prosecution , his dismissal from his job , the search of his LOC and his detention and ill - treatment by the police . The applicant \u2019s lawyer asked the court to request from the prosecutor \u2019s office case - files nos . DATE , DATE and DATE . The applicant and his representative maintained that the evidence gathered by the prosecution was necessary to argue the substantive part of the civil suit . On DATE ORG of PERSON requested the files from the respective prosecutor \u2019s offices . On DATE case - file no . DATE was delivered to the court . It was withdrawn DATE by the prosecutor \u2019s office . On DATE the case - file was re - submitted to the court . On DATE , at the prosecutor \u2019s request , the case - file was returned to the prosecution . On DATE the applicant \u2019s representative asked the court to suspend the civil proceedings .","The applicant \u2019s notice of dismissal dated CARDINAL DATE was annulled , and the applicant was reinstated in his post . The officers responsible for his backdated dismissal were subjected to disciplinary proceedings . However , owing to the applicant \u2019s complete disability , he had to leave the traffic police .","The applicant is disabled and receives a pension from the ORG on that basis . The Government indicated that in connection with the accident he also received a lump - sum insurance indemnity from the ORG in the amount of MONEY ( MONEY at the current exchange rate ) .","The applicant produced a report , drawn up on DATE by Dr PERSON , a specialist in forensic medicine . The report stated that the applicant suffered from osteomyelitis , his legs were paralysed , he was unable to work and he suffered from severe dysfunction of the pelvic organs and loss of sexual function . He was confined to bed and was in permanent need of a nurse to help him urinate and empty his bowels . The applicant was at risk of sepsis . He required regular hospital examinations , CARDINAL or CARDINAL times a year .","DATE . The Civil Code of GPE , which entered into force on DATE , provides for compensation for damage caused by an act or failure to act on the part of the ORG ( Article CARDINAL ) . Articles CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that nonpecuniary damage shall be compensated irrespective of any award for pecuniary damage .","Article CARDINAL \u00a7 CARDINAL ( f ) of LAW of the Russian Federation makes acts of torture punishable by DATE imprisonment . LAW makes incitement to suicide liable to a sentence of PERCENT imprisonment . Under LAW ( a ) and ( \u0432 ) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years\u2019 imprisonment .","Under LAW and CARDINAL of the DATE Code of Criminal Procedure ( in force until DATE ) , a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities\u2019 own motion . Article CARDINAL of the PERSON stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party . During the investigation the victim could submit evidence and lodge applications , and once the investigation was complete the victim had full access to the case - file .","Under Articles CARDINAL and CARDINAL of the Code , a prosecutor was responsible for overall supervision of the investigation . In particular , the prosecutor could order a specific investigative measure to be carried out , the transfer of the case from CARDINAL investigator to another , or the reopening of the proceedings .","Under Article CARDINAL of the Code , the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime . Such a decision was subject to appeal to the senior prosecutors or the court . The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete .","Article CARDINAL of the Code provided that the case could be reopened by the prosecutor \u201c if there are grounds \u201d to do so . Only if the time - limit for prosecuting crimes of that kind had expired could the investigation not be reopened .","Article CARDINAL of the Code provides that , as a general rule , the information obtained in the course of the investigation file is not public . The disclosure of that information may be authorised by the prosecuting authorities if the disclosure does not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings . The information concerning the private life of the parties to the proceedings can not be made public without their consent ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84196","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2007,"docname":"SEBIK AND STERNOVA v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicants are :","PERSON and PERSON , born in DATE and DATE respectively , living in GPE and represented by PERSON , a lawyer practising in GPE ;","Mr PERSON , born in DATE and residing in GPE ;","Mr PERSON , born in DATE and living in GPE ;","PERSON , born in DATE and living in GPE , GPE .","They are NORP nationals .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , from ORG .","The facts of the cases , as submitted by the parties , may be summarised as follows .","On DATE ORG ( PERSON ) convicted the ORG father of treason , sentencing him to confiscation of all his property , which was subsequently sold and assigned to a certain PERSON and M.","On DATE the ORG father died .","On DATE ORG ( krajsk\u00fd soud ) declared that , pursuant to LAW , his conviction and all ancillary decisions had been quashed with retrospective effect .","On DATE the applicants brought restitution proceedings before ORG ( okresn\u00ed soud ) against P. and M.","In a judgment of DATE ORG dismissed the applicants\u2019 restitution action . The court had requested an expert opinion aimed at determining whether or not the property at issue had been sold to PERSON an unlawfully preferential price . With reference to the expert opinion , the court held that ORG PERSON had acquired the property lawfully .","On DATE ORG upheld the merits of ORG judgment , which became final on DATE .","On DATE the ORG appeal on points of law ( dovol\u00e1n\u00ed ) was dismissed by ORG as filed outside the DATE statutory time - limit laid down by LAW then in force .","On DATE ORG ( PERSON ) rejected the applicants\u2019 constitutional appeal . It held that in respect of ORG judgment the appeal had been filed outside the DATE time - limit provided for by LAW , taking into account the dismissal of the applicants\u2019 appeal on point of law for their failure to respect the DATE statutory time - limit . The court further held that the applicants\u2019 argument relating to the proceedings before ORG were manifestly ill - founded .","On DATE the applicant \u2019s wife died . Judicial proceedings regarding her inheritance were started on CARDINAL DATE and were meritoriously terminated on DATE when the decision of ORG ( krajsk\u00fd soud ) of CARDINAL DATE on the distribution of the inheritance became final .","On DATE a notary initiated inheritance proceedings following the death of a certain PERSON","On DATE ORG ( okresn\u00ed soud ) held that the applicant and his wife were heirs to PERSON At the same time , it determined the net value of PERSON \u2019s assets .","The inheritance proceedings terminated with a decision of ORG dated DATE which became final on DATE .","The applicant \u2019s husband was the owner of real estate in various places in GPE . These estates were confiscated from him in DATE . In DATE some of the estates were transferred to the ownership of natural persons in an assignment procedure .","On DATE the applicant \u2019s husband died , designating the applicant as his universal heir . The application concerns the following sets of proceedings .","ORG proceedings before ORG","On DATE the applicant \u2019s late husband initiated restitution proceedings concerning the estates in GPE and PERSON .","It appears that the proceedings are still pending .","ORG proceedings before the GPE nad ORG","On DATE the applicant \u2019s late husband lodged a claim for the restitution of the real estate in GPE , Chl\u00edstov u \u017delezn\u00e9ho Brodu , ORG u ORG , ORG PERSON with the GPE nad ORG .","It appears that the proceedings are still pending .","ORG proceedings before ORG","On DATE the applicant \u2019s late husband lodged a claim for the restitution of the estate in PERSON with ORG . It appears that the proceedings are still pending .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG \u2019s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57595","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":1968,"docname":"CASE OF WEMHOFF v. GERMANY","importance":2,"conclusion":"No violation of Art. 5-3;No violation of Art. 6-1","judges":"","text":["The object of the ORG \u2019s request is to submit the case of PERSON to the ORG so that the ORG may decide whether or not the facts reveal any violation by GPE of its obligations under LAW ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) of the Convention .","The facts of the case , as they appear from ORG , the memorials , documents and evidence submitted to ORG and the oral statements made by ORG , are essentially as follows :","PERSON , a NORP national born at GPE in DATE , is habitually resident there . At the time of his arrest he was a broker by profession .","Being under suspicion of being involved in offences of breach of trust , the PERSON was arrested on DATE . A warrant of arrest ( PERSON ) issued DATE by ORG ( ORG ) of ORG ordered his detention on remand .","The warrant stated that PERSON was under grave suspicion of having incited breach of trust ( GPE zur Untreue ) contrary to Sections CARDINAL and CARDINAL of the NORP LAW : as a customer of the August - Thyssen Bank in GPE he was said to have incited certain of the ORG \u2019s officials to misappropriate very large sums of money . It was also stated in the warrant that it was to be feared that , if left at liberty , the Applicant would abscond and attempt to suppress evidence ( LAW of LAW ) , for :","- he was likely to receive a considerable sentence ;","- persons implicated in the offences but not yet known to the authorities might receive warning ; and","- there was a danger that the Applicant would destroy those business documents that it had not yet been possible to seize .","During the investigation the warrant was superseded successively by CARDINAL detention orders dated DATE and CARDINAL DATE , both issued by ORG . These stated that PERSON was under grave suspicion of continuing acts of fraud ( fortgesetzter LOC ) contrary to LAW , of prolonged abetment to fraud ( fortgesetzte Beihilfe zum Betrug ) contrary to Sections CARDINAL and CARDINAL of the Code and of prolonged abetment to breach of trust ( fortgesetzte GPE ) contrary to Sections CARDINAL and CARDINAL of the Code .","In the course of DATE and DATE the Applicant asked at several times to be released but all his requests were rejected by the GPE courts which referred to the reasons given in the warrants of arrest mentioned above . In particular , in DATE , he made an unspecified offer of bail , which was rejected by ORG ( GPE ) on DATE , on the grounds of a danger of suppression of evidence ( GPE ) and moreover because bail could not dispel or diminish the danger of flight in the present case . On DATE , he offered bail of CARDINAL ORG , but he withdrew the offer DATE .","On the occasion of an ex - officio examination of the lawfulness of the detention by ORG , ORG lawyer asked on DATE for conditional release of the Applicant , offering in particular the deposit of identity papers . On DATE , however , the court ordered the further detention of the Applicant on the grounds given in the warrant of arrest .","The Applicant contested this decision on DATE , when he invoked the provisions of ORG first time . Asking for release on any condition which might be thought to be necessary , he held in particular that there was neither a danger of suppression of evidence nor a danger of flight , for he had done all he could do to clear up the transactions involved . He added that all his roots were in GPE where he lived with his wife and child and where his family had for CARDINAL owned a jeweller \u2019s shop , and which his father intended to convey to him very soon . He further stressed that he had brought civil actions against his debtors and therefore had to appear as plaintiff before several ORG CARDINAL times a week . On the other hand , he pointed out that it was not possible for him to flee from GPE : by reason of his numerous previous journeys he was so well known at the GPE airport that he could not take an aeroplane there ; having been detained for DATE in GPE he could enter neither this territory nor GPE . Finally the fact that he stayed at GPE after the discovery of his transactions by ORG on DATE showed clearly that he never had any intention of fleeing .","This appeal was rejected by ORG ( Landgericht ) of GPE on CARDINAL DATE , on the following grounds :","- the Applicant was under suspicion of having committed the alleged offences ;","- the facts had not been fully investigated and were particularly involved ;","- he appeared to have played a particularly significant part in all the transactions under consideration so that he was likely to receive a particularly severe sentence and might therefore be suspected of intending to flee ;","- he had important connections abroad and it was impossible , at the present stage of the preliminary investigation , to deny the possibility that he had assets there ;","- the threat of his financial collapse increased the danger of flight which was not diminished by the existence of his family links in GPE ;","- while it was doubtful whether the danger of suppression of evidence was sufficient to justify continued detention , certain reasons still suggested that there was still such danger .","In a second appeal ( PERSON ) of CARDINAL DATE , the Applicant specified that he had been sentenced in DATE by a tribunal in GPE to DATE penal servitude and had been released in DATE . Adding that he had declared his opposition to communism on many occasions , the Applicant declared that it was also impossible for him to flee by passing through GPE by train or by road .","From the judgment of ORG of DATE ( paragraph CARDINAL , infra ) , it appears that the conviction mentioned by the Applicant had been in respect of the illegal transport of goods belonging to refugees and of timber to GPE ; this conviction was dated DATE .","The Appeal of CARDINAL DATE was rejected by ORG on CARDINAL DATE . While admitting that at this stage there might be some doubt as to whether there was still a danger of suppression of evidence , the ORG , taking up the grounds of the decision against which the appeal was lodged , pointed out that there was still a danger that the Applicant would abscond ; and that his continued detention did not conflict with the requirements of LAW ) ( article CARDINAL ) of the LAW . The ORG added that it was to be feared that ORG would refuse to comply with the summons to appear before the judicial authorities on account of his character on which a medical expert had given an unfavourable opinion , which had been confirmed by his conduct while in detention pending trial .","Several applications for conditional release filed by the Applicant in DATE and DATE were also rejected by the GPE courts on grounds similar to those stated by ORG on CARDINAL DATE . In particular , this court found , in a decision of CARDINAL DATE , that the risk that the Applicant would abscond was even greater than in DATE . As a matter of fact , he was likely to receive an appreciably higher sentence than had formerly been thought , as in the meantime LAW had extended the accusation against the Applicant to certain offences under LAW some of which he was said to have committed while in detention . On the other hand , the court considered that it was not yet possible to forecast whether the LAW , in the event of a conviction , would be conditionally released in accordance with LAW after serving CARDINAL of his detention and whether , in the event of such conviction , the time he had spent in detention pending trial would be counted as part of the sentence .","DATE and CARDINAL DATE the LAW submitted CARDINAL petitions concerning the conditions of his detention on remand , CARDINAL of which were accepted by the responsible authorities while the other CARDINAL were refused .","During his detention , he was subjected to disciplinary punishment CARDINAL times .","The investigation concerned CARDINAL persons . It was conducted by a member of ORG and lasted from DATE to CARDINAL DATE without any important interruptions . In particular , PERSON was interrogated on CARDINAL occasions .","CARDINAL of the subjects of the investigation was extremely complex cheque manipulations of which the defendants were suspected ( paragraph CARDINAL of ORG ) . It involved the examination of CARDINAL accounts at CARDINAL banks in GPE , CARDINAL banks in GPE and CARDINAL banks in GPE ; the transactions checked totalled CARDINAL DM . In the case of the Applicant alone , transactions amounting to CARDINAL DM were involved DATE and DATE , affecting CARDINAL accounts at CARDINAL banks .","CARDINAL witnesses were questioned , both in GPE and abroad . In addition CARDINAL expert opinions were obtained from a number of auditing firms and accountants and from a retired President of the ORG . The number of DATE amounted to CARDINAL . The reports of the financial experts alone comprised CARDINAL pages .","By the time the charge was preferred the court \u2019s records comprised CARDINAL volumes containing CARDINAL pages .","On DATE , the investigation having been completed , the indictment - a document of CARDINAL pages - was filed with ORG of Berlin ; it was notified to the Applicant on DATE . It shows that the PERSON was accused of :","- CARDINAL cases of prolonged incitement to breach of trust ;","- prolonged fraud in CARDINAL of these CARDINAL cases ;","- CARDINAL case of prolonged abetment to breach of trust ; and","- seven offences under LAW ( CARDINAL ) ( i ) and CARDINAL of LAW ( GPE ) .","The cases of incitement to breach of trust , fraud and abetment to breach of trust were considered particularly grave ones within the meaning of Sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW .","On the basis of the indictment , ORG , on DATE , replaced the existing detention order by a new one which stated that PERSON was under grave suspicion of having committed the same acts of incitement to breach of trust and complicity in breach of trust as well as fraud and CARDINAL of the CARDINAL offences against LAW mentioned above .","In connection with the last - named offences the detention order stated that there were grounds for thinking that in the DATE of DATE PERSON had withdrawn CARDINAL ORG from an account in his wife \u2019s name at ORG , GPE , and secreted this amount somewhere . It added that the same was true , at least in part , of a sum of CARDINAL ORG paid in by ORG in DATE to an account kept by his agent with the \" ORG \" , GPE .","According to the detention order , there was still a danger that the applicant would abscond , because of the likely sentence .","By an order ( PERSON ) of ORG dated DATE , the Applicant and CARDINAL other accused were committed to the trial court ; the order severed the proceedings against a further CARDINAL accused persons from the main proceedings .","ORG found there was reason to think that PERSON had committed the offences described in the detention order of CARDINAL DATE .","Proceedings on CARDINAL of the CARDINAL acts of bankruptcy of which the applicant was suspected were severed from the main proceedings ; they were later discontinued ( Einstellung ) under LAW of LAW .","The Applicant \u2019s trial opened on DATE . In the course of it he lodged CARDINAL applications for the hearing of witnesses , covering CARDINAL points . He challenged CARDINAL judges and CARDINAL financial experts on the grounds of partiality . ORG heard CARDINAL witnesses , CARDINAL medical experts and CARDINAL financial experts . TIME totalled CARDINAL pages , apart from the appendices , which comprised CARDINAL pages .","On DATE , ORG , acting under LAW of LAW , discontinued ( eingestellt ) the proceedings in those cases of fraud with which the PERSON was charged that occurred before the beginning of DATE . On DATE , it severed from the principal proceedings the CARDINAL offences under LAW ( CARDINAL ) ( i ) of LAW for which the LAW was still being prosecuted . DATE the proceedings relating to these were also discontinued ( LAW ) .","On DATE , ORG found PERSON guilty of a particularly serious case of prolonged abetment to breach of trust ( fortgesetzte Beihilfe zur Untreue , Sections CARDINAL and CARDINAL of LAW ) and sentenced him to DATE and DATE penal servitude ( ORG ) and a fine of CARDINAL DM , the period of detention on remand being counted as part of the sentence . The court ordered that the Applicant should be kept in detention on remand for the reasons stated in the detention order of DATE .","Judgment was passed on the Applicant at the same time as on CARDINAL other accused . The judgment comprised CARDINAL pages .","After conviction , PERSON again applied for provisional release in DATE , but ORG rejected his application on DATE . His appeal against this decision was rejected by ORG on CARDINAL DATE . That court found that it was very probable that he had secreted large sums of money and that he was greatly in debt and insolvent , so that there was a danger that he would yield to the temptation to evade prosecution .","On DATE , the PERSON requested provisional release against security of CARDINAL DM ( CARDINAL DM in cash and CARDINAL DM in the form of a bank guarantee to be put up by his father ) . After discussing the matter at ORG , PERSON amended his request DATE , offering security of CARDINAL DM . This offer was accepted by ORG on DATE . The Applicant , however , did not deposit this security but on CARDINAL DATE , offered a bank guarantee of CARDINAL or CARDINAL DM which was to be provided by his father . ORG rejected this offer on DATE . The Applicant contested this decision and offered security of CARDINAL DM , but ORG dismissed his appeal on DATE on the ground that a security of this sum was not sufficient to dispel the danger of flight which was still present .","On DATE , while these proceedings were still in progress , PERSON again asked ORG to order his release if necessary against security of CARDINAL DM . The court rejected the application on DATE . It found that the temptation for PERSON to abscond was still very great , for :","- the sentence remaining to be served was considerable ;","- the Applicant was insolvent and deeply in debt , which he would probably never be able to settle ; and","- the suspicion that he had secreted away CARDINAL DM , as stated in the detention order of DATE , had grown stronger during the trial .","On DATE ORG ( ORG ) rejected an appeal ( Revision ) filed by the PERSON in DATE against his conviction by ORG . The time he had spent in detention since the judgment of DATE , in so far as it exceeded DATE , was to be counted as part of the sentence .","On DATE , after serving CARDINAL of his sentence , PERSON was conditionally released ( in accordance with LAW ) under an Order of ORG dated DATE .","In his original ORG lodged with the ORG on DATE , the Applicant alleged that the length of his detention on remand violated his right under LAW ) ( article CARDINAL ) of the Convention to be brought to trial within a reasonable time or released pending trial . He complained of the fact that the decisions of ORG dated DATE , of ORG dated CARDINAL DATE and of ORG dated CARDINAL DATE had not put an end to the detention . He claimed compensation for the damage suffered and reserved the right to specify later the exact amount of his claim .","On DATE the ORG declared the ORG admissible in respect of LAW ) ( article CARDINAL ) , and also , ex officio , with reference to LAW .","Subsequent to his ORG , PERSON made CARDINAL other complaints . On DATE the Commission declared CARDINAL of them inadmissible as being manifestly ill - founded ; the other CARDINAL were not upheld by the Applicant .","Following the decision declaring admissible the original ORG , a ORG ascertained the facts and unsuccessfully sought a friendly settlement ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) .","Before the ORG and ORG , the PERSON maintained that the purpose of LAW ) ( article CARDINAL ) was to avoid an excessively long deprivation of liberty because of the extent and length of the investigation . He stated that detention on remand was a \" special sacrifice \" imposed upon persons , whether guilty or not , for the maintenance of an effective administration of justice . As , according to the Applicant , this involves a derogation from the principle of the presumption of innocence enshrined in LAW ( article DATE ) , the ORG has not the right to continue such detention until the social position , the livelihood , the health , the professional and family life of the individual concerned were destroyed , consequences which his detention had brought about . Pointing out that a remand prisoner \u2019s uncertainty as to his fate is a mental strain that becomes heavier with the passage of time , the PERSON also mentioned LAW ) of the Convention .","ORG also submitted that it would have been possible to deal with his case more speedily , in particular , by dividing it , by employing several public prosecutors and by accelerating the work of the experts . He added that he himself had not caused any substantial delay in the proceedings but , on the contrary , assisted ORG in unravelling the transactions in issue .","Furthermore , the Applicant submitted that neither the length of his anticipated sentence nor his civil liability for the loss suffered by ORG constituted sufficient grounds for suspecting him of intending to escape . His offers of bail and the fact that after the discovery of the PERSON affair on DATE , he remained with his family in GPE until his arrest on DATE proved that he had no intention of resorting to flight .","Lastly PERSON claimed that he was a victim of a violation of LAW ) ( article CARDINAL ) notwithstanding the final result of his trial , since , in his opinion , the decision whether or not the length of detention pending trial is reasonable can not depend upon any subsequent occurrence . The Applicant added that , if the conditions of detention on remand are less harsh than those of penal servitude , the uncertainty of the remand prisoner as to his future constitutes a special burden which does not exist in the case of a convicted prisoner .","After the failure of the attempt to arrange a friendly settlement made by ORG , ORG drew up a ORG as required under LAW article CARDINAL ) of the LAW . The ORG was adopted on DATE and transmitted to ORG DATE . The Commission expressed therein the following opinion , which it later confirmed before the ORG :","( a ) by CARDINAL votes to CARDINAL , that the Applicant had not been brought to trial \" within a reasonable time \" or released pending trial , and that , consequently , LAW ) ( article CARDINAL ) of the Convention had been violated in the present case ;","( b ) by CARDINAL votes to one , that that conclusion could not be affected by the fact that the judgment of DATE required the period of detention on remand to be counted as part of the sentence ;","( c ) unanimously , that the PERSON \u2019s continued detention on remand , ordered by the competent courts on the grounds of danger of flight and suppression of evidence , was a \" lawful detention \" within the meaning of LAW ) ( article CARDINAL - CARDINAL-c ) ;","( d ) unanimously , that it could not consider the Applicant \u2019s claim for compensation under LAW ) ( article DATE ) , before :","( i ) the competent organ , namely , the ORG or ORG , had given a decision on the question whether LAW ) ( article CARDINAL ) had been violated ; and","( ii ) the Applicant had had an opportunity , with respect to his claim for compensation , to exhaust , in accordance with LAW , the domestic remedies available to him under NORP law ;","( e ) unanimously , that even if the period from DATE to CARDINAL DATE was considered , LAW ( article DATE ) had not been violated in the criminal proceedings against the Applicant .","In brief , of the CARDINAL members of the Commission who were present when the ORG was adopted , CARDINAL found no breach by GPE of its obligations under the LAW while the majority considered that there had been a breach on CARDINAL count , but none on the others . The ORG sets out CARDINAL individual opinions \u2013 CARDINAL concurring , and the other CARDINAL dissenting .","Arguments of the ORG and the Government","In the ORG \u2019s view LAW ) ( LAW ) of the Convention lays down the right of a person detained in accordance with LAW ) ( article CARDINAL - CARDINAL-c ) either to be released pending trial or to be brought to trial within a reasonable time . If the person is being held in detention on remand it must not exceed a reasonable period . The most important problem , therefore , is to determine the exact meaning of the words \" reasonable time \" . The Commission finds this expression vague and lacking in precision , with the result that it is not possible to determine abstractly its exact meaning , which can be evaluated solely in the light of the particular circumstances of each case .","In order to facilitate such evaluation the ORG believes that it is in general necessary to examine an individual case according to the CARDINAL following \" criteria \" or \" elements \" :","( i ) The actual length of detention .","In this respect , the ORG does not indicate in its ORG when it considers the \" reasonable time \" mentioned in LAW ) ( article CARDINAL ) to begin and to end in abstracto . During the oral proceedings before the ORG , however , ORG of the Commission stated the problems which the Commission thinks arise in this matter . Whereas the LANGUAGE version ( \" entitled to trial within a reasonable time or to be released pending trial \" ) would permit the interpretation that the period referred to ends with the opening of the case before the trial court , the LANGUAGE version ( \" \u00eatre jug\u00e9e dans un d\u00e9lai raisonnable , ou lib\u00e9r\u00e9e pendant la proc\u00e9dure \" ) would cover a longer period , ending at the date on which judgment is pronounced . The Commission has not stated any definite opinion on this question , but at the hearing its ORG expressed a clear preference in favour of the interpretation based on the NORP text , the meaning of which is , unlike the LANGUAGE version , clear and unequivocal and also more favourable to the individual . In particular , the delegate of the Commission rejected the argument of ORG that the LANGUAGE version should be accepted for the simple reason that it limits the sovereignty of GPE to a lesser degree .","The Commission emphasised the importance which it attaches to the ORG \u2019s settling this question of interpretation .","( ii ) The length of detention on remand in relation to the nature of the offence , the penalty prescribed and to be expected in the case of conviction and any legal provisions making allowance for such a period of detention in the execution of the penalty which may be imposed . On this point the ORG remarked that the length of detention on remand may vary according to the nature of the offence concerned and the penalty prescribed and to be expected . However , in determining the relation between the penalty and the length of detention , it is necessary to take into account the presumption of innocence as guaranteed by LAW ( article PERCENT ) of the LAW . If the length of detention should approach too closely the length of the sentence to be expected in case of conviction , the principle of presumption of innocence would not be fully observed ;","( iii ) material , moral or other effects on the detained person .","( iv ) the conduct of the accused :","( a ) Did he contribute to the delay or expedition of the investigation or trial ?","( b ) Was the procedure delayed as a result of applications for release pending trial , appeals or other remedies resorted to by him ?","( c ) Did he request release on bail or offer other guarantees to appear for trial ?","( v ) difficulties in the investigation of the case ( its complexity in respect of facts or number of witnesses or co - accused , need to obtain evidence abroad , etc . ) .","( vi ) the manner in which the investigation was conducted :","( a ) the system of investigation applicable ;","( b ) the conduct by the authorities of the investigation ( the diligence shown by them in dealing with the case and the manner in which they organised the investigation ) .","( vii ) the conduct of the judicial authorities concerned :","( a ) in dealing with the applications for release pending trial ;","( b ) in completing the trial .","The ORG argues that a rational scheme of this kind makes possible in each case a \" coherent interpretation without any appearance of arbitrariness \" . The ORG remarks , however , that the conclusion in any particular case will be the outcome of an overall evaluation of all the elements . Even if examination of some of the criteria leads to the conclusion that the length of detention is reasonable , the application of other criteria may lead to a contrary conclusion . The final and determining conclusion will therefore depend on the relative weight and importance of the criteria , but this in no way precludes CARDINAL single criterion from having decisive importance in some cases .","The ORG adds that it has endeavoured to cover , through the aforementioned criteria , all the situations of fact which it is usually possible to find in cases of detention on remand , but that the list should not be considered exhaustive , there being exceptional situations , other than those submitted to the ORG for decision in the case in question , which might justify the examination of other criteria .","In this case the ORG ascertained the facts in the light of the said criteria and proceeded to their legal evaluation by the same method of interpretation .","Certain of the facts established by the ORG seemed to it important in the light of several criteria . There will be found below a summary of the ORG \u2019s opinion on these various points .","With regard to application of the first criterion , that is to say the length of ORG \u2019s detention on remand , the ORG takes into account the period from DATE ( the date of his arrest ) to CARDINAL DATE ( DATE of the opening of the trial before ORG ) . According to the Commission the actual length of this detention ( DATE ) seems to warrant the conclusion that it exceeded a \" reasonable \" period .","As regards the second criterion mentioned above , the ORG is of the opinion that its application in the present case seems to justify the same conclusion . It remarks that here it has taken into consideration both the possibility of the Applicant \u2019s provisional release under LAW , and the fact that the length of detention has been counted as part of the sentence imposed . The ORG accepts that this last measure constitutes an element comparable to an \" extenuating circumstance \" , but states that it in no way changes the distinctive nature of detention on remand which , not being in accordance with LAW ) ( article CARDINAL ) , remains a violation of the LAW , even if in the execution of the sentence finally imposed , account has been taken of the period of detention .","Application of the third criterion , in the opinion of the Commission , likewise leads to the conclusion that the length of detention was excessive , in view of the prejudicial effects of the detention on the PERSON \u2019s family life ; his long detention is said to have destroyed his marriage and injured his close relations with his parents .","ORG does not think , as regards the fourth criterion , that the Applicant \u2019s conduct contributed substantially to the length of his detention .","In evaluating the fifth criterion the Commission considers that the case in question was of very great complexity , not only on account of the nature and number of the financial transactions involved but also because of the number of accused and witnesses who had to be heard and the ramifications of the case both in GPE and abroad . According to the Commission these circumstances support and conclusion that the length of detention was reasonable .","The examination of the sixth and seventh criteria does not , in the opinion of the Commission , lead to the conclusion that the criminal proceedings against the Applicant were substantially prolonged through any fault of the authorities .","In the light of the overall evaluation of these various criteria , Commission attaches particular importance to the actual length of detention and concludes that the Applicant was not brought to trial within a \" reasonable \" time or released pending trial , and that consequently he has been a victim of a violation of LAW ) ( article CARDINAL ) .","It should be added that in the ORG \u2019s view the continued detention on remand of the Applicant , ordered by the competent courts because of the danger of flight and suppression of evidence , was lawful within the meaning of LAW ) ( article QUANTITY - CARDINAL-c ) .","The ORG maintains that LAW ) poses questions of interpretation similar to those raised by LAW ) ( article CARDINAL ) , in particular as regards the \" time \" mentioned in LAW ( article DATE ) . However , in the opinion of the Commission , the question whether the time was \" reasonable \" for the purposes of LAW ) ( article CARDINAL ) or of LAW ) ( article DATE ) must be judged differently in the CARDINAL cases ; the former , being intended to safeguard the physical freedom of the individual , requires stricter application than the latter , the object of which is to protect the individual against abnormally long judicial proceedings , irrespective of the question of the actual detention . In the present case , the criminal procedure related to extremely complex facts ; it was not unduly prolonged by the NORP judicial authorities . Therefore , the ORG arrives at the conclusion that even if the period concerned were considered to run from DATE until DATE , LAW ) has not been violated in the criminal proceedings against the Applicant .","At the hearing of DATE , the ORG made the the following submissions :","\" DATE it please the ORG to decide :","( CARDINAL ) whether or not LAW ) ( article CARDINAL ) of the LAW has been violated by the detention of ORG from DATE to CARDINAL DATE or any later date ;","( CARDINAL ) whether or not LAW ) ( article DATE ) of the LAW has been violated by the duration of the criminal proceedings against ORG between his arrest on DATE or any later date and the judgment of ORG of GPE on DATE or any other date . \"","ORG , for its part , remarks that it shares the ORG \u2019s opinion as to the absence of any violation of LAW ) ( article DATE ) of the Convention .","With regard to the interpretation of LAW ) ( article CARDINAL ) of the LAW and its application to the present case , the ORG believes that the period to be considered is that which the ORG takes into account in its ORG , from arrest ( DATE ) to the opening of the case before the trial court , ORG of GPE ( CARDINAL DATE ) .","According to the Government it is essential , at least in the present case , not to rely on the NORP text ( \" le droit d\u2019\u00eatre jug\u00e9e dans un d\u00e9lai raisonnable ou lib\u00e9r\u00e9e pendant la proc\u00e9dure \" ) , which could signify a longer period ( up to the date of the judgment ) than one terminating on the date of the opening of the trial , as suggested by the LANGUAGE version ( \" entitled to trial within a reasonable time or to release pending trial \" ) . It could therefore lead to a further limitation of the sovereignty of GPE . Moreover , application of LAW ) ( article CARDINAL ) in the NORP version would allow the accused to prolong the protection accorded by that provision by making excessive use of procedural devices . The result would be an undue prolongation of proceedings , with the danger that by the time release was possible , the period would no longer be \" reasonable \" .","In general terms the Government expresses considerable reservations as to the method adopted by the Commission - that of laying down CARDINAL \" criteria \" - while admitting that the answer depends In its opinion , the Commission was not objective , on its strict allocation of the facts to the same criteria , as indeed some of the facts mentioned in relation to CARDINAL of the criteria would be equally relevant to others .","The ORG also sets against the Commission \u2019s reasoning the following considerations which , in its opinion , demonstrate the absence of any violation of LAW ) ( article CARDINAL ) in the case of the Applicant .","To the first criterion advanced by the ORG , namely , the actual length of detention , the ORG raises objections of principle . In its opinion , the adjective \" reasonable \" , qualifying the noun \" time \" , introduces a relative element ; the absolute factor which the actual length of detention represents can not therefore serve as a criterion for determining whether such a length of time is \" reasonable \" . Furthermore , the ORG remarks that , in the ORG \u2019s view , the Applicant \u2019s detention was \" lawful \" for the whole of its length within the meaning of LAW ) ( article CARDINAL - CARDINAL-c ) of the LAW ; it adds that the ORG , in evaluating the fifth criterion , admits that the complexity of the investigation tends to justify the length of detention . The Government therefore does not see how it is possible to consider as \" unreasonable \" the length of the detention on remand in toto . Moreover , the ORG has not indicated at what moment the detention ceased , in its opinion , to be \" reasonable \" .","Neither does the Government share the evaluation of the Commission with respect to the second criterion . It emphasises that the opinion of the ORG is based primarily on the possibility , provided in LAW , of the conditional release of a detained person . However , according to the ORG , that ORG , whose application depends on the ORG \u2019s discretion , can operate only when the sentence has become final and , more precisely , from the moment when the convicted person has already served CARDINAL of his sentence ; it can not therefore justify the conclusion that the length of detention on remand has been \" unreasonable \" . Moreover , the NORP judicial authorities granted the Applicant conditional freedom when he had served CARDINAL of his sentence . This decision , which dates from DATE , was able to be taken so early because the length of detention on remand had been counted as part of the sentence .","With regard to the ORG \u2019s argument that detention on remand represents a distinct situation even where it has been counted in part or in whole against the sentence , the Government stresses the advantages - which are not disputed - of such detention compared with a sentence of imprisonment . It is inferred from this that the length of the detention operated in favour of the Applicant : had it been shorter , ORG would have had to spend longer in penal servitude , which would have made the conditions of his detention appreciably worse .","In evaluating the third criterion , the ORG has omitted , in the ORG \u2019s view , to verify the existence of a causal relation between ORG detention and the deterioration of his family life . The Government maintains that if PERSON had been convicted earlier and thus subjected to a longer period of imprisonment , the effects would have been equally prejudicial - indeed , even graver - for his financial and family position than would those of detention on remand . It is deduced from this that the evaluation of the third criterion by the ORG is not convincing .","In the opinion of the Government , the statements of fact arrived at by the Commission in the light of the fourth criterion contain certain lacunae . Certainly , it may be acknowledged that the numerous requests , appeals and other approaches , set out in detail in Appendices PERSON and ORG , do not allow it to be affirmed that ORG generally intended to slow down the course of the proceedings . According to the ORG , there can , however , be no doubt that the examination of the case was thereby prolonged . On this point , the Government likewise remarks that ORG of GPE decided on DATE , i.e. after conviction , to suspend the detention order subject to the deposit of bail of CARDINAL DM . ORG had , in the light of the documents in its possession , discovered that the Applicant had deposited the sum of CARDINAL DM in an account opened in the name of his wife in a NORP bank , and that he had withdrawn this sum when his offences came to light . In the course of the proceedings , the Applicant had given highly contradictory explanations of this transaction ; the judicial authorities have not been in a position to discover what PERSON had done with the sum of money in question . Whatever the position may be , the Applicant did not take up the offer of bail of the ORG .","According to the Government , it should be concluded that the application of the fourth criterion does not authorise the ORG to consider as unreasonable the length of detention on remand .","As regards the application of DATE criteria , the Government states that it shares the opinion expressed by the Commission .","In dealing with a criminal case as enormous and as complex , both as to the facts and to the law , as is the PERSON case , the Government considers that the ORG \u2019s method of evaluation does not allow objective determination of whether the length of detention on remand was reasonable or not within the meaning of LAW ) ( article CARDINAL ) of the Convention or of where in time the line should be drawn between what is \" reasonable \" and what is \" unreasonable \" .","In particular , the Government expresses its regret that in following the system of \" criteria \" the ORG has lost sight of the reasons which , in the view of the judicial authorities , made continued detention necessary . The danger that the Applicant would abscond is said to have been a real one throughout his detention , by reason not only of the gravity of the likely sentence and its effect on his civil responsibility but also of his financial malpractices and particularly the unexplained withdrawal of CARDINAL DM from an account in his wife \u2019s name with a NORP bank .","At the hearing of CARDINAL DATE , the ORG made the following submission :","\" We ask this ORG to find :","that the decisions and measures taken by NORP authorities and courts in the PERSON case are compatible with the commitments entered into by ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) of the Convention \" ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5","6"],"non_violated_paragraphs":["5-3","6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107325","languageisocode":"ENG","respondent":"AUT","branch":"GRANDCHAMBER","date":2011,"docname":"CASE OF S.H. AND OTHERS v. AUSTRIA","importance":1,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 8","judges":"Anatoly Kovler;Christos Rozakis;Elisabet Fura;Elisabeth Steiner;Fran\u00e7oise Tulkens;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;J\u00e1n \u0160ikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;P\u00e4ivi Hirvel\u00e4;Sverre Erik Jebens;Vincent A. De Gaetano","text":["The applicants were born in DATE , DATE , DATE and DATE respectively and live in NORP and NORP","The first applicant is married to the second applicant and the third applicant to the fourth applicant .","The first applicant suffers from fallopian - tube - related infertility ( eileiterbedingter PERSON ) . She produces ova , but , due to her blocked fallopian tubes , these can not pass to the uterus , so natural fertilisation is impossible . The second applicant , her husband , is infertile .","The third applicant suffers from agonadism ( PERSON ) , which means that she does not produce ova at all . Thus , she is completely infertile but has a fully developed uterus . The fourth applicant , her husband , in contrast to the second applicant , can produce sperm fit for procreation .","On DATE the first and third applicants lodged an application ( PERSON ) with ORG ) for a review of the constitutionality of sections PERSON ) and CARDINAL ) of LAW ( DATE see paragraphs DATE below ) .","The applicants argued before ORG that they were directly affected by the above provisions . The first applicant submitted that she could not conceive a child by natural means ; thus , the only way open to her and her husband would be in vitro fertilisation using sperm from a donor . That medical technique was , however , ruled out by sections PERSON ) and CARDINAL ) of LAW . The third applicant submitted that she was infertile . As she suffered from agonadism , she did not produce ova at all . Thus , the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer , which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant . However , that method was not allowed under LAW .","The first and third applicants argued before ORG that the impossibility of using the above - mentioned medical techniques for medically assisted conception amounted to a breach of their rights under LAW . They also relied on LAW , which guarantees equal treatment .","On DATE ORG held a public hearing in which the first applicant , assisted by counsel , participated .","On DATE ORG decided on the first and third applicants\u2019 request . It found that their request was partly admissible in so far as the wording concerned their specific case . In this respect , it found that the provisions of section CARDINAL of LAW , which prohibited the use of certain procreation techniques , was directly applicable to the applicants\u2019 case without it being necessary for a decision by a court or administrative authority to be taken .","As regards the merits of their complaints , ORG considered that LAW was applicable in the applicants\u2019 case . Although no case - law of ORG existed on the matter , it was evident , in ORG view , that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under LAW .","The impugned provisions of LAW interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation . As for the justification for such an interference , ORG observed that the legislature , when enacting LAW , had tried to find a solution by balancing the conflicting interests of human dignity , the right to procreation and the well - being of children . Thus , it had enacted as leading features of the legislation that , in principle , only homologous methods \u2013 such as using ova and sperm from the spouses or from the cohabiting couple itself \u2013 and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed . The aim of the legislature was to avoid the forming of unusual family relationships , such as a child having more than one biological mother ( a genetic mother and CARDINAL carrying the child ) , and to avoid the risk of the exploitation of women .","The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well - being of children thus conceived , their health and their rights , and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction ( PERSON ) .","NORP However , applying the principle of proportionality under LAW , such concerns could not lead to a total ban on all possible medically assisted procreation techniques , as the extent to which public interests were concerned depended essentially on whether a homologous technique ( having recourse to the gametes of the couple ) or heterologous technique ( having recourse to gametes external to the couple ) was used .","In ORG view , the legislature had not overstepped the margin of appreciation afforded to member GPE when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception . The choices the legislature had made reflected the then current state of medical science and the consensus in society . It did not mean , however , that these criteria were not subject to developments which the legislature would have to take into account in the future .","The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques . Besides strictly homologous techniques it had accepted insemination using donor sperm . Such a technique had been known and used for a long time and would not bring about unusual family relationships . Further , the use of these techniques was not restricted to married couples but also included cohabiting couples . However , the interests of the individuals concerned had to give way to the above - mentioned public interest when a child could not be conceived by having recourse to homologous techniques .","ORG also found that for the legislature to prohibit heterologous techniques , while accepting as lawful only homologous techniques , was not in breach of the constitutional principle of equality which prohibits discrimination . The difference in treatment between the CARDINAL techniques was justified because , as pointed out above , the same objections could not be raised against the homologous method as against the heterologous one . As a consequence , the legislature was not bound to apply strictly identical regulations to both . Also , the fact that insemination in vivo with donor sperm was allowed while ovum donation was not , did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well - being of a future child .","Since the impugned provisions of LAW were in line with LAW and the principle of equality under LAW , there had also been no breach of LAW .","This decision was served on the first and third applicants\u2019 lawyer on DATE .","LAW ( Fortpflanzungsmedizingesetz , ORG no . DATE ) regulates the use of medical techniques for inducing conception of a child by means other than copulation ( section CARDINAL(CARDINAL ) ) .","These methods comprise : ( i ) introduction of sperm into the reproductive organs of a woman ; ( ii ) unification of ovum and sperm outside the body of a woman ; ( iii ) introduction of viable cells into the uterus or fallopian tube of a woman ; and ( iv ) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman ( section CARDINAL(CARDINAL ) ) .","Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage , and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success ( section CARDINAL ) .","NORP Under section CARDINAL(CARDINAL ) , only ova and sperm from spouses or from persons living in a relationship similar to marriage ( GPE ) may be used for the purpose of medically assisted procreation . In exceptional circumstances , namely if the spouse or male partner is infertile , sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman ( section CARDINAL(CARDINAL ) ) . This is called in vivo fertilisation . In all other circumstances , and in particular for the purpose of in vitro fertilisation , the use of donor sperm is prohibited .","Under section CARDINAL(CARDINAL ) , ova or viable cells may only be used for the woman from whom they originate . Thus , ovum donation is always prohibited .","The further provisions of LAW stipulate , inter alia , that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries ( section CARDINAL ) and with the express and written consent of the spouses or cohabiting persons ( section CARDINAL) .","In DATE LAW was supplemented by LAW establishing a fund for financing in vitro fertilisation treatment ( GPE , FAC ein Fonds zur Finanzierung der In - vitro - Fertilisation eingerichtet wird \u2013 ORG , Part I , no . CARDINAL ) in order to subsidise in vitro fertilisation treatment allowed under LAW .","The issue of maternity and paternity is regulated in LAW Allgemeines B\u00fcrgerliches Gesetzbuch ) . Under Article PERSON , introduced at the same time as the entry into force of LAW , the mother of a child is the woman who has given birth to that child . As regards paternity , Article CARDINAL provides that the father of a child is the male person who has had sexual intercourse with the mother within a certain period of time ( DATE ) before the birth . If the mother has undergone medically assisted procreation treatment using sperm from a donor , the father is the person who has given his consent to that treatment , that is , the spouse or male partner . A sperm donor can in no circumstances be recognised as the father of the child .","The following overview of the law and practice concerning artificial procreation in LOC is based essentially on the following documents : \u201c Medically Assisted Procreation and ORG on the Situation in GPE \u201d ( ORG , DATE ) ; the replies by the member ORG to ORG on ORG on access to medically assisted procreation ( ORG ) and on right to know about their origin for children born after GPE \u201d ( ORG , DATE ) ; and a survey carried out in DATE by ORG .","From this material it would appear that in vitro fertilisation treatment was ( as at DATE ) regulated by primary or secondary legislation in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE such treatment was governed by clinical practice , professional guidelines , royal or administrative decree or general constitutional principles .","ORG study sets out , in particular , the position of domestic law as regards CARDINAL different artificial procreation techniques : artificial insemination within a couple , in vitro fertilisation within a couple , artificial insemination by a sperm donor , ovum donation , ovum and sperm donation , embryo donation and intracytoplasmic sperm injection ( an in vitro fertilisation procedure in which a single sperm is injected directly into an ovum ) .","It seems that among the countries which have regulated the issue of artificial procreation , sperm donation is currently prohibited in GPE , GPE and GPE . All CARDINAL countries do not permit heterologous assisted fertilisation . Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation . As regards ovum donation , this is prohibited in GPE , GPE , GPE and GPE , in addition to the CARDINAL countries mentioned above .","It further appears that in a number of countries , such as GPE , GPE , GPE , GPE and GPE , where the matter was not regulated ( as at DATE ) , the donation of both sperm and ova is used in practice .","A comparison between ORG study of DATE and the survey conducted by ORG in DATE shows that in the field of medically assisted procreation legal provisions are developing quickly . In GPE , GPE and GPE , sperm and ovum donation , which was previously prohibited , is now allowed since the entry into force of new legal provisions in DATE , DATE and DATE respectively . In GPE , sperm donation for in vitro fertilisation has been allowed since DATE , but not ovum donation . Since DATE , medically assisted procreation is also regulated by law in GPE allowing sperm and ovum donation .","Principle CARDINAL of the principles adopted in DATE by ORG in ORG ( ORG ) , the expert body within ORG which preceded the present ORG , states :","\u201c CARDINAL . In principle , in vitro fertilisation shall be effected using gametes of the members of the couple . The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro . However , in exceptional cases defined by the member GPE , the use of gametes of donors may be permitted . \u201d","ORG does not deal with the question of donation of gametes , but forbids the use of medically assisted reproduction techniques to choose the sex of a child . Article CARDINAL reads as follows :","\u201c The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child \u2019s sex , except where serious hereditary sex - related disease is to be avoided . \u201d","The Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of ORG and Tissues of Human Origin of DATE , which promotes the donation of organs , expressly excludes from its scope reproductive organs and tissues .","Directive CARDINAL\/CARDINAL\/EC of ORG and of ORG on the setting of standards of quality and safety for the donation , procurement , testing , processing , preservation , storage and distribution of human tissues and cells , which seeks to ensure the quality and safety aspects of human tissues and cells intended for human applications , provides in its Preamble as follows :","\u201c CARDINAL . This directive should not interfere with decisions made by member GPE concerning the use or non - use of any specific type of human cells , including germ cells and embryonic stem cells . If , however , any particular use of such cells is authorised in a member ORG , this directive will require the application of all provisions necessary to protect public health , given the specific risks of these cells based on the scientific knowledge and their particular nature , and guarantee respect for fundamental rights . Moreover , this directive should not interfere with provisions of member GPE defining the legal term \u2018 person\u2019 or \u2018 individual\u2019 . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102904","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2011,"docname":"CASE OF JULARI\u0106 v. CROATIA","importance":3,"conclusion":"Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in GPE .","NORP The events at issue took place in GPE , a NORP town near the NORP border which was heavily attacked by ORG and paramilitary NORP armed forces during the Homeland War from DATE and finally occupied at DATE . DATE ORG was a part of ORG ( the \u201c ORG \u201d ) .","In DATE ORG established ORG in LOC , PERSON and ORG ( the \u201c ORG \u201d ) , which included ORG . On DATE the ORG mandate ceased and the transfer of power to the NORP authorities began .","According to the applicant , on CARDINAL DATE several members of the NORP paramilitary forces came to her home , took some money and ransacked the house looking for money and gold . The applicant recognised CARDINAL of them as GPE , GPE and GPE","On DATE CARDINAL men , dressed in ORG uniforms , CARDINAL of whom was PERSON and personally known to the applicant , came to the applicant 's family house in GPE . They hit her husband , PERSON , before taking him away . TIME the applicant heard shots from an automatic weapon . The uniformed men then also took the applicant and her grandson , PERSON , together with some other persons , including PERSON , to the military headquarters . On the way there the applicant saw the dead body of her husband , his head battered , lying on a path in front of a house ; the persons who had brought him out of the house were standing next to the body .","In DATE the applicant reported the above - mentioned event to the GPE police station , which was located in GPE at that time .","On DATE ORG lodged a criminal complaint with ORG against CARDINAL alleged offenders ( PERSON , GPE , FAC , ORG , GPE , GPE , GPE , ORG , GPE and GPE ) , alleging that on DATE they had arrested several individuals and then killed CARDINAL of them , CARDINAL of whom was the applicant 's husband , and had thus committed a war crime against the civilian population . Following a request of ORG , dated DATE , ORG opened an investigation in respect of the CARDINAL suspects on DATE on the criminal charge of armed rebellion . ORG also ordered the suspects ' detention and issued a warrant to find and arrest them , as they had absconded .","On DATE ORG heard evidence from the applicant and her son . The applicant said that in DATE and DATE , after the NORP forces had entered ORG , but before the city finally fell , several persons , including her former neighbours GPE , ORG and CARDINAL brothers PERSON , all dressed in ORG uniforms and equipped with shotguns and PERSON , had been coming to the yard in front of her house DATE , threatening her and asking for her sons . She further stated that CARDINAL of the persons who had come to her house on DATE and taken her husband away was PERSON , but she did not know the names of the others . TIME , while she was being taken to the military headquarters , the applicant had passed the dead body of her husband . Her neighbour , PERSON , who had been with her at the time , knew the names of the men who had taken the applicant 's husband away .","On DATE the GPE State Attorney 's ORG requested that the investigation be extended to CARDINAL further suspects , \u0110. P. and ORG The charge was changed to CARDINAL of war crimes against the civilian population . It was also requested that CARDINAL witnesses be called once the police had found out their addresses . On DATE the ORG requested the police to inform them of the addresses of the CARDINAL witnesses . On DATE ORG extended the investigation to GPE and ORG and issued arrest warrants against them . On DATE the police gave ORG the requested addresses .","On DATE the applicant and another witness gave evidence before ORG . The applicant specifically named one of the perpetrators , and the witness PERSON said that she had seen all CARDINAL suspects at the scene .","On DATE ORG stayed the investigation on the ground that the suspects and some of the witnesses resided in the occupied territory of GPE , where the NORP authorities were not able to exercise their power .","The Convention was ratified by GPE on DATE .","The territories of ORG , PERSON and PERSON were re - integrated into GPE in DATE .","On DATE jurisdiction in the matter was transferred to ORG ( \u017dupanijski sud u Vukovaru ) and the investigation was resumed .","On DATE CARDINAL of the suspects , PERSON , was arrested and gave evidence before an investigating judge of ORG . On DATE the investigating judge heard evidence from CARDINAL further suspects , GPE , GPE and GPE On DATE PERSON again gave evidence before the investigating judge . All the suspects denied their involvement in the murder of the applicant 's husband . On DATE the applicant again gave evidence .","On DATE the GPE State Attorney 's ORG requested a further investigation . On CARDINAL and DATE the investigating judge again heard evidence from the witness ORG and CARDINAL other witnesses . Witness PERSON , who had been ordered to bury the body of the applicant 's husband , stated that he had been arrested by members of the NORP paramilitary forces and taken to the place where the dead body of the applicant 's husband had been lying . The head had been battered and the body was riddled with bullets . The witness could not name any of the uniformed men who had been standing next to the body and had ordered him to bury it . The other witness , PERSON , had no knowledge of the relevant facts .","The applicant enquired about the investigation on several occasions and on DATE she was informed that an investigation had been opened against GPE , GPE and others in ORG on charges of war crimes against the civilian population , and was still pending .","On DATE the investigating judge terminated the investigation following a general amnesty granted in respect of the criminal offence of armed rebellion . On DATE a CARDINAL - judge panel of ORG quashed that decision on the ground that , prior to the amnesty , the offence had already been reclassified as a war crime against the civilian population . On DATE the case file was forwarded to the State Attorney 's Office . On DATE that ORG requested a further investigation .","A psychiatric report in respect of witness GPE was commissioned . The report was submitted to ORG on DATE . On DATE GPE gave evidence before the investigating judge . He had no specific knowledge of the facts in issue . Further hearings were held before the investigating judge on DATE , DATE and DATE . In the meantime , on DATE , the investigation in respect of PERSON was terminated owing to his death .","On DATE the applicant complained to the ORG Attorney of inactivity and delays in the investigation into the death of her husband and of failure to commit the suspect for trial .","At a hearing held before the investigating judge on DATE witness PERSON gave her evidence .","On DATE the applicant again gave evidence . She stated that another witness , TIME , had been present when her husband had been taken away on DATE . TIME was not called as a witness .","Further hearings were held before the investigating judge on DATE , DATE , DATE , DATE and DATE .","On DATE the applicant lodged a constitutional complaint of inactivity on the part of the investigating authorities . ORG answered in a letter of DATE that the applicant 's complaint was not suitable for proceedings before that court .","At hearings held before the investigating judge on CARDINAL DATE and DATE , further witnesses gave evidence .","Identification parades were held on DATE and DATE in order to verify the identity of the suspect PERSON of the CARDINAL witnesses called , including PERSON , recognised him as one of the people who had taken the applicant 's husband away . On DATE the investigation in respect of PERSON was terminated for lack of evidence .","On DATE the investigating judge requested international legal assistance in order to have the suspect ORG interviewed in GPE . On DATE , in reply to a request from the NORP authorities , the investigating judge supplied a list of questions to be put to ORG The latter was heard by the NORP authorities on DATE .","On DATE the investigating judge heard evidence from witness PERSON","On DATE ORG terminated the proceedings in respect of the suspect PERSON because he had died .","On DATE the offence with which the suspects had been charged was reclassified as armed rebellion . On the basis of that reclassification and pursuant to LAW , ORG terminated the proceedings on DATE ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71299","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2005,"docname":"CASE OF CAPITAL BANK AD v. BULGARIA","importance":1,"conclusion":"Government's request for strike-out rejected;Violations of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings","judges":"Christos Rozakis","text":["The applicant bank was set up and acquired a banking licence in DATE . On DATE its licence was revoked by the BNB and on DATE it was put into compulsory liquidation ( see paragraphs CARDINAL and CARDINAL below ) . On DATE the bank was wound up and it was struck off the register of companies ( see paragraph CARDINAL below ) .","On DATE the ORG ruled that the applicant bank was insolvent .","On DATE the ORG lodged a petition with ORG to wind up the applicant bank .","In a decision of CARDINAL DATE the ORG found that the overall amount of the applicant bank \u2019s outstanding major loans was CARDINAL times greater than the amount of its capital ( including paidup capital and reserves ) , when the regulatory maximum was CARDINAL times . Considering that that situation put at risk the bank \u2019s ability to operate and posed certain other problems with its financial standing , it decided to restrict the bank \u2019s operations . In particular , it prohibited it from taking deposits , granting loans or other credit facilities , purchasing bills of exchange or promissory notes , entering into foreigncurrency or preciousmetals transactions , entering into deposit transactions , acting as a surety or guarantor or providing security to third parties , effecting noncash operations , clearing current accounts of third parties and conducting factoring transactions . The ORG also appointed a special administrator ( see paragraph DATE below ) to supervise the activities of the applicant bank and to verify whether it complied with the restrictions .","On DATE ORG , finding that the BNB had yet to revoke the applicant bank \u2019s licence , which was a precondition to making a winding - up order under LAW of DATE , discontinued the proceedings . Its decision was upheld by ORG on DATE .","In principle , it would have been possible to remedy the problems noted in the ORG \u2019s decisions of DATE and of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) by increasing the applicant bank \u2019s capital .","This appears to have been the reason why on DATE the applicant bank \u2019s general meeting of shareholders resolved to issue new shares up to an amount of CARDINAL old NORP levs ( ORG ) , to be subscribed by the shareholders . The resolution was registered by ORG and took effect on DATE .","CARDINAL of the applicant bank \u2019s shareholders , TOO Royal Flash and ORG , subscribed the shares and , accordingly , became liable to pay for them . However , they sought to discharge this liability by other means . On DATE and CARDINAL and DATE the CARDINAL shareholders purchased , at a discount , debts due by the applicant bank to the ORG and several other banks and companies . By virtue of these debt assignments the applicant bank \u2019s shareholders also became its creditors . They advised the applicant bank that they wished to set off their obligations to pay for their newly subscribed shares against the debts that the applicant bank now owed them . Accordingly , the applicant bank made entries in its accounts to effect the required set - offs .","On DATE the deputygovernor of the BNB responsible for banking supervision , in whom ORG powers under section CARDINAL of LAW of DATE ( see paragraph CARDINAL below ) were vested , directed the applicant bank to cancel the abovementioned entries in its accounts . She reasoned that the set - offs represented noncash consideration for the shares and that they had been effected in breach of sections DATE CARDINAL of LAW of DATE and of section CARDINAL ) of LAW of DATE ( see paragraphs CARDINAL below ) . The deputygovernor of the ORG also ordered the applicant bank to present to the ORG a rectified balance sheet showing the cancelling of the entries . The order was immediately enforceable and not subject to judicial review ( see paragraph CARDINAL below ) .","In a subsequent decision of DATE ( see paragraph CARDINAL below ) the BNB appears to have considered that the set - offs were in fact a conversion of assets which could not improve the applicant bank \u2019s financial situation .","On DATE the governor of the ORG , acting on a recommendation by the deputygovernor responsible for banking supervision , revoked the applicant bank \u2019s licence and appointed CARDINAL special administrators to act in place of the applicant bank \u2019s board of directors . The reasons for his decision were as follows :","\u201c In its decision [ of DATE ] the ORG \u2019s board of governors found that the [ applicant bank ] was insolvent and petitioned the court to put it in compulsory liquidation .","With a view to allowing the [ applicant bank \u2019s ] managing bodies to improve its financial situation by increasing its capital and accumulating additional funds and thus allowing it to restore itself to a state of solvency , [ the ORG \u2019s ] banking supervision department decided not to recommend the revocation of the bank \u2019s licence on grounds of insolvency .","The analysis of the [ applicant bank \u2019s ] financial situation as of DATE , carried out by [ the ORG \u2019s ] banking supervision department , indicates that the bank \u2019s capital has not been increased through the accumulation of additional funds , but mainly through the conversion of assets \u2013 a conversion which was , moreover , not carried out in the proper manner DATE which has not led to a substantial improvement in the bank \u2019s financial situation .","The overall capital adequacy of the bank is negative \u2013 PERCENT DATE , and the valuation of the bank \u2019s assets and liabilities , carried out in accordance with the ORG \u2019s supervisory requirements and rules , indicates that the value of the bank \u2019s liabilities exceeds the value of its assets by ORG CARDINAL . Moreover , the bank has failed for DATE to pay a due debt of GPE dollars ( ORG ) to ORG ( in liquidation ) . Because of all these facts the ORG \u2019s deputygovernor in charge of the banking supervision department has recommended that the bank \u2019s licence be revoked by reason of insolvency . \u201d","NORP The decision , a copy of which was sent to the applicant bank by fax on DATE and later by a letter of DATE , which was received by the bank on DATE , stated that it was immediately enforceable and not subject to judicial review ( see also paragraph CARDINAL below ) . On DATE it was published in ORG .","The applicant bank contended that the debt to which the ORG had referred in its decision had in fact been settled . In support of that assertion it presented a decision of DATE of an enforcement judge at GPE , which indicated that by DATE the applicant bank had paid in full a debt to the Commercial and Savings Bank AD under a writ of execution . The applicant bank further claimed that the ORG had been informed of the payment of the debt through a report made by the applicant bank \u2019s special administrator on DATE . The Government disputed the applicant bank \u2019s contentions and said that the debt in fact remained unpaid , as ORG had found in its judgment approving the list of agreed PERSON claims in the liquidation proceedings ( see paragraph CARDINAL below ) . The parties also produced a number of other documents in corroboration of their assertions .","The applicant bank further contended that its assets exceeded its liabilities , contrary to what the ORG had found in its decision . In particular , it had money in CARDINAL accounts in banks in GPE . The Government disputed that statement . Both parties presented various documents in corroboration of their assertions .","On DATE the ORG filed with ORG a petition to wind up the applicant bank . In the petition it repeated almost verbatim the findings it had made in its decision of DATE ( see paragraph CARDINAL above ) .","A hearing was held on DATE , at which the applicant bank was represented by the special administrators previously appointed by the BNB ( see paragraph CARDINAL above ) . A prosecutor from ORG also took part in the proceedings , as mandated by former LAW of LAW of DATE ( see paragraph CARDINAL below ) .","Counsel instructed by the special administrators argued that there was no indication that the applicant bank \u2019s liabilities exceeded its assets or that it had defaulted on a debt which had fallen due . This position was supported by the prosecutor , who also submitted that it was necessary to gather evidence on the applicant bank \u2019s real financial situation .","In a judgment of DATE ORG granted the ORG \u2019s petition , declared the applicant bank insolvent , made an order for it to be wound up , divested its decision - making bodies of their powers and the bank of the right to administer its property , ordered the sale of its assets , and appointed liquidators . It found that the conditions for making a winding - up order DATE namely , that an order revoking the bank \u2019s licence had been made and a copy of that order produced to the court DATE were satisfied . LAW of DATE gave the court limited jurisdiction in proceedings to wind up an insolvent bank . The only fact the court had to verify in such proceedings was whether the above CARDINAL conditions were met . The judgment continued :","\u201c ... in view of the new procedure introduced by LAW [ of DATE ] , ... the objection ... that the ORG \u2019s averment of [ the applicant bank \u2019s ] insolvency is not supported by evidence is unfounded . Unlike the repealed ORG [ of DATE ] , which provided that the ORG had to ... prove ... the bank \u2019s insolvency , the new LAW [ of DATE ] does not contain such a requirement . Moreover , in section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW the legislature has exhaustively specified the conditions for making a winding - up order [ in respect of a bank ] and the requirements that the ORG \u2019s petition has to conform to . These boil down solely to indicating the grounds on which the bank \u2019s licence has been revoked under section CARDINAL ) of the LAW .","The logical and comparativelaw construction of the above provisions ... leads to the categorical conclusion that the changes in the statutory regime of bank insolvency are aimed , on the one hand , at a significant reduction in the court \u2019s jurisdiction , [ and even ] at taking away its power to determine whether the bank is insolvent , and , on the other hand , at empowering [ the BNB ] to determine that issue without being required to substantiate or prove its finding before the court ...","An argument in favour of the above conclusion is section CARDINAL ) of the LAW , which expressly provides that the decision of [ the BNB ] to revoke a banking licence is not subject to judicial review . ... Gathering evidence relating to the ... insolvency of a bank would run counter to the abovecited prohibition against judicial review .","In view of all this the court finds that all [ the applicant bank \u2019s ] requests and objections ... contesting the ORG \u2019s averments about its insolvency are inadmissible and can not be examined . The same goes for the evidence presented by [ the applicant bank ] : even if it is admissible , it should not be taken into account , as it is absolutely irrelevant to the dispute at hand . The CARDINAL abovecited prerequisites \u2013 the order ... revoking the banking licence of [ the applicant bank ] and the production of a copy of that order to the court ... \u2013 are sufficient for the resolution of this dispute . \u201d","As the judgment was immediately enforceable ( see paragraph CARDINAL below ) , it was considered that from TIME the persons entitled in law to act on the applicant bank \u2019s behalf were the courtappointed liquidators . Accordingly , the liquidators represented the applicant bank in the ensuing stages of the proceedings .","The liquidators did not appeal against the judgment , but ORG did . It argued that GPE had erred in not examining whether the applicant bank was in fact insolvent . It had thus turned the proceedings into a mere rubber - stamping of the ORG \u2019s petition for an order winding up the applicant bank . Had the court taken the trouble to look at the actual circumstances , it would have found that the applicant bank had MONEY in cash , as evidenced by a report drawn up by the BNBappointed special administrators . That fact raised the question whether the ORG \u2019s finding that the value of the applicant bank \u2019s liabilities exceeded the value of its assets was indeed true . Also , the ORG had not specified the amount or the date of maturity of the overdue debt the applicant bank was alleged to have failed to pay for DATE . It was thus impossible to carry out an independent assessment of the veracity of its allegation . ORG presented an expert report according to which the applicant bank \u2019s assets adequately covered its liabilities .","NORP In reply the BNB and the applicant bank \u2019s liquidators argued that the appeal was unfounded .","On DATE a threemember panel of ORG upheld the Sofia City Court \u2019s judgment . Although it held that it could independently establish the facts , without deferring to the ORG \u2019s findings , it was of the view that the applicant bank was indeed insolvent . An analysis of the evidence showed that , according to the ORG \u2019s deputygovernor , the value of the applicant bank \u2019s assets was ORG CARDINAL , and the value of its liabilities BGL CARDINAL . The difference between those figures was exactly the amount mentioned in the ORG \u2019s decision and its ensuing winding - up petition . Turning to the other factual evidence of insolvency \u2013 the nonpayment of a due debt for DATE the court held that the applicant bank did in fact owe another bank MONEY under a debt rescheduling agreement of DATE . No payments had been made in satisfaction of that debt . The applicant bank \u2019s objection that it had not been able to make any payments because of the prohibition on noncash operations imposed on it by the ORG \u2019s decision of CARDINAL DATE ( see paragraph CARDINAL above ) was unfounded . In any event , the reasons for non - payment were irrelevant , since inability , however caused , to pay a debt for DATE was of itself sufficient for the court to find insolvency .","The Chief Prosecutor \u2019s ORG filed a petition for review of the judgment of the threemember panel .","On DATE a fivemember panel of ORG dismissed that petition in the following terms :","\u201c The first - instance court \u2019s construction of DATE LAW [ of DATE ] \u2013 is correct . The regime of bank insolvency is a lex specialis in relation to general commercial insolvency law ... In this context it has to be considered that the ... prerequisites for ... an order winding up a bank are governed not by the general rules of LAW [ of DATE ] , but by the special rules of LAW [ of DATE ] ... This is necessary because of the specific character of the banking business ... [ Banks operate ] predominantly with other people \u2019s money , which necessitates compliance with strict requirements for capital adequacy , formation of provisions and ... liquidity . [ The BNB monitors compliance with these requirements ] as part of its function of banking supervision , with a view to preserving the stability of the banking system and achieving effective and enhanced protection of depositors . Because of this specificity proceedings to wind up banks are expedited , with a view to protecting the interests of the creditors of the insolvent bank .","...","ORG correctly held that the soundness and the expediency of the ORG \u2019s decision to revoke [ the applicant bank \u2019s ] licence could not be reviewed by the court , because [ the ORG has special powers ] in discharging its banking supervisory duties . By virtue of LAW of LAW [ of DATE ] the court is bound by [ the ORG \u2019s ] winding - up petition , if it meets the requirements of section CARDINAL ) in conjunction with section CARDINAL ) . [ T]he court does not carry out an additional examination of circumstances evidencing the insolvency of a bank . ... The BNB alone ... has the competence to determine extra - judicially whether the CARDINAL grounds for [ declaring a bank insolvent ] exist . [ This determination ] is not subject to review by the court , which has no latitude in such proceedings . Once the ORG has established the insolvency of a bank before the winding - up procedure begins , the court may not reconsider the issue . It must only carry out a formal , ex facie verification of [ the FAC ] \u2019s winding - up petition , without venturing into the substantive issues ... , because it is the revocation of the licence itself that constitutes the ground for making a winding - up order . The court may only verify whether [ the FAC ] \u2019s decision is void , but may not examine whether [ the ORG \u2019s ] finding of insolvency is borne out by the facts ... \u201d","Thereafter winding - up proceedings unfolded in respect of the applicant bank .","In the course of those proceedings the applicant bank \u2019s creditors , which included its CARDINAL shareholders , submitted their proofs of debt to the bank \u2019s liquidators . The liquidators examined the proofs and drew up a list of agreed claims . CARDINAL of the bank \u2019s shareholders , TOO Royal Flash and ORG , and CARDINAL other creditors made objections to the list , which the liquidators examined . The liquidators then transmitted the list to ORG for approval . No objections to the list were made to the court , which approved it in a final judgment of DATE . On DATE the liquidators tried to obtain a ruling that a debt to the Commercial and Savings Bank AD did not exist and that the underlying claim should accordingly be disallowed , but ORG declared their request inadmissible in a decision of DATE , holding that no objections had been made to that claim at the appropriate time , and that the existence of the debt had therefore been conclusively established in its judgment of CARDINAL DATE , which was binding on the bank , its creditors and liquidators .","On DATE the applicant bank \u2019s liquidators applied to ORG ( see paragraph CARDINAL below ) for permission to start negotiations with potential buyers for the purchase of the applicant bank \u2019s entire undertaking . Permission was granted on DATE and on DATE the liquidators entered into a contract for the sale of the undertaking to ORG , with the latter agreeing to pay a purchase price of ORG and the applicant bank \u2019s creditors ORG CARDINAL in satisfaction of their claims . The contract was approved by ORG in a final judgment of DATE .","In a final judgment of DATE the same court , on an application by the applicant bank \u2019s liquidators , brought the winding up to an end and ordered that the applicant bank be struck off the register of companies .","On an unspecified date in DATE CARDINAL of the applicant bank \u2019s shareholders , ORG , lodged with ORG an application for judicial review of the ORG \u2019s decision to revoke the bank \u2019s licence . It argued that the decision was null and void . Later the chairman and vicechairman of the applicant bank \u2019s board of directors , purporting to act on the bank \u2019s behalf , requested leave to intervene in the proceedings .","In a decision of CARDINAL DATE a threemember panel of ORG held that the applicant bank \u2019s request to be allowed to intervene in the proceedings was inadmissible because it had been lodged by persons who no longer represented it . Following the winding - up order and by virtue of section CARDINAL(CARDINAL ) of LAW of DATE , read in conjunction with section CARDINAL(CARDINAL ) of LAW of DATE , the only persons with power to act on its behalf were the liquidators . The court went on to hold that ORG application for judicial review of the ORG \u2019s decision was inadmissible . Section CARDINAL ) of LAW of DATE excluded decisions by the ORG to revoke a bank \u2019s licence from the scope of judicial review . That provision was to be construed according to its plain meaning and was applicable regardless of whether the request was to annul the decision or to declare it null and void . Furthermore , ORG had no standing to lodge an application for judicial review , because the ORG \u2019s decision was addressed to the applicant bank , not to its shareholders .","NORP The chairman and the vicechairman of the applicant bank \u2019s board of directors and ORG appealed .","In a decision of DATE a fivemember panel of ORG declared the appeal by the chairman and vicechairman of the applicant bank \u2019s board of directors inadmissible and ORG appeal illfounded . It held that no appeal lay against the refusal to allow the applicant bank to intervene in the proceedings . It also held that the decision not to examine ORG application for judicial review on the merits was correct . The prohibition of section CARDINAL ) of LAW of DATE applied regardless of whether the request was to annul the ORG \u2019s decision or to declare it null and void .","In DATE the chairman and the vicechairman of the applicant bank \u2019s board of directors complained to the prosecution authorities about the actions of the ORG \u2019s deputygovernor in charge of banking supervision who had made the order of CARDINAL DATE and the recommendation to the governor of ORG to revoke the applicant bank \u2019s licence ( see paragraphs CARDINAL above ) . They argued that she had acted in excess of her powers with a view to causing damage to the applicant bank . On DATE ORG ordered a criminal investigation into the deputygovernor \u2019s actions . On DATE she was charged with abuse of office . In the course of the investigation the prosecution authorities ordered expert reports on , inter alia , the issue of whether the applicant bank had been insolvent as of DATE . CARDINAL of the experts answered that question in the affirmative , another answered it in the negative .","One of the expert reports , drawn up on DATE , noted that a confidential agreement concluded in DATE between ORG ( \u201c the IMF \u201d ) and GPE for the establishment of a currency board in the country stipulated that the right to appeal against the BNB \u2019s decisions should be preserved , but should not hamper it in the performance of its banking supervisory functions . According to an opinion expressed by the GPE \u2019s mission in GPE , any successful appeal should only lead to an award of compensation , not to the invalidation of the BNB \u2019s decision to close the bank . It appears to have been the view of the GPE \u2019s mission in GPE that the protracted process of judicial review of the BNB \u2019s decisions and their possible invalidation would not be consistent with the effective process of banking supervision .","On DATE a prosecutor from ORG discontinued the proceedings , considering that the ORG \u2019s deputygovernor had acted lawfully and had not acted in abuse of office . On DATE another prosecutor from ORG , acting on a complaint by the applicant bank \u2019s shareholders , decided to reopen the investigation , which the ORG understands is still pending .","In DATE a serious financial crisis unfolded in GPE , leading to economic instability , considerable inflation and the failure of a number of ORG and private banks . As a response to that and after negotiations with the ORG , the country adopted a currency board , whereby its national currency became pegged to the NORP mark , and also established a completely new legislative framework regulating the activity of banks , mainly consisting of the new ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0411\u044a\u043b\u0433\u0430\u0440\u0441\u043a\u0430\u0442\u0430 \u043d\u0430\u0440\u043e\u0434\u043d\u0430 \u0431\u0430\u043d\u043a\u0430 \u201c ) , which entered into force on DATE and DATE , and LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0431\u0430\u043d\u043a\u0438\u0442\u0435 \u201c ) , which entered into force on DATE and superseded ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0431\u0430\u043d\u043a\u0438\u0442\u0435 \u0438 \u043a\u0440\u0435\u0434\u0438\u0442\u043d\u043e\u0442\u043e \u0434\u0435\u043b\u043e \u201c ) .","The ORG , established in DATE , is ORG . At present its mission , structure , mandate and powers are principally set out in ORG . Its duties comprise , inter alia , regulating and supervising the other banks in the country with a view to securing the stability of the banking system and protecting the interests of depositors ( section PERSON ) of the Act ) . It is accountable to ORG ( section CARDINAL ) of the LAW ) , which elects its governor ( section CARDINAL(CARDINAL ) of the LAW ) and deputygovernors ( section CARDINAL(CARDINAL ) of the LAW ) . The CARDINAL remaining members of its board are appointed by the President of the Republic ( section CARDINAL(CARDINAL ) of the LAW ) . LAW , as worded at the material time , provided that the ORG was independent of the instructions of ORG or any other government agency in the exercise of its powers .","Under ORG of DATE the ORG could , under certain conditions , restrict the activities of a bank and the types of transactions it could enter into ( section CARDINAL(CARDINAL)(CARDINAL ) of ORG of DATE ; see also section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE ) .","Section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of LAW of DATE allows in broad terms the ORG to direct a bank in writing to remedy breaches of the LAW or of the BNB \u2019s regulations or other Acts or directives .","Under section CARDINAL(CARDINAL ) in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of ORG of DATE , the ORG could appoint special administrators ( \u201e \u043a\u0432\u0435\u0441\u0442\u043e\u0440\u0438 \u201c ) with the power to , inter alia , control the activities of the bank , verify whether it had complied with restrictions , gain access to its LOC and check all its operations ( see also section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of that Act ) .","Sections DATE and CARDINAL of LAW of DATE also allow the ORG to appoint special administrators to a bank . These special administrators act in lieu of the bank \u2019s board of directors ( section CARDINAL(CARDINAL ) ) , that is to say on behalf of the bank . They are appointed and dismissed by the FAC ( section CARDINAL ) ) , which may give them instructions ( section CARDINAL(CARDINAL ) ) , and are accountable only to it ( section CARDINAL ) ) . All transactions made by a bank without the prior approval of the special administrators are null and void ( section NORP ) ) .","The ORG is required to revoke a bank \u2019s licence on the ground of insolvency if ( a ) the bank fails for DATE to repay a debt which has fallen due or ( b ) the total of the bank \u2019s liabilities exceeds the total of its assets ( section CARDINAL ) of LAW of DATE ) . The value of the bank \u2019s assets and liabilities is determined by the ORG in accordance with supervisory requirements and its own rules ( section ORG ) ) .","When it revokes a bank \u2019s licence , the ORG must appoint special administrators ( see paragraphs CARDINAL and CARDINAL above ) if none have yet been appointed ( section ORG ) of LAW of DATE ) . The administrators represent the bank until the court appoints liquidators ( section CARDINAL(CARDINAL ) of LAW of DATE ) . A decision by the ORG to revoke a bank \u2019s licence is immediately enforceable ( section CARDINAL ) of LAW of DATE ) .","As an exception to the general rules of administrative procedure ( sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0430\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0442\u0438\u0432\u043d\u043e\u0442\u043e \u043f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u043e \u201c ) ) , the ORG does not inform the bank of the commencement of the procedure for revoking its licence and does not have to examine or take into account the bank \u2019s representations and objections , if any ( section CARDINAL ) of LAW of DATE ) . Under previous legislation ( section MONEY ) of the now repealed LAW of DATE ) , when revoking a bank \u2019s licence the only circumstance in which the ORG could dispense with informing the bank of the commencement of the procedure and with examining its representations and objections was if the case was exigent and urgent .","After revoking a bank \u2019s licence on the ground of insolvency , the ORG is required to file with the competent insolvency court a petition for an order winding - up the bank ( former section CARDINAL(CARDINAL ) of LAW of DATE ; see also sections CARDINAL and CARDINAL of LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0431\u0430\u043d\u043a\u043e\u0432\u0430\u0442\u0430 \u043d\u0435\u0441\u044a\u0441\u0442\u043e\u044f\u0442\u0435\u043b\u043d\u043e\u0441\u0442 \u201c ) , which in DATE superseded the provisions of LAW of DATE relating to the winding up of insolvent banks ) .","Article CARDINAL of the LAW of DATE provides :","\u201c CARDINAL . The courts shall review the lawfulness of the administration \u2019s acts and decisions .","Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them , save as expressly specified by statute . \u201d","NORP Whereas the ORG \u2019s decisions under ORG of DATE were , without limitation , subject to review by ORG ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG of DATE ) , LAW of DATE prohibits judicial review of a number of the ORG \u2019s decisions . Thus , supervisory and enforcement measures ordered by the FAC DATE of the Act are not subject to judicial review ( section CARDINAL(CARDINAL ) of LAW of DATE ) ; neither are its decisions to revoke a bank \u2019s licence ( section CARDINAL ) of LAW of DATE ) , or to appoint or replace special administrators at a bank ( sections CARDINAL ) and CARDINAL ) of LAW of DATE ) .","LAW of DATE governs the procedure for issuing administrative decisions and for judicial review of such decisions . An application for judicial review must be lodged within a specified timelimit , which varies depending on whether the administrative decision was express or implied and on whether there has been an appeal to a higher administrative authority ( section CARDINAL(CARDINAL ) , read in conjunction with sections CARDINAL , DATE and DATE of the Act ) . The only circumstance in which no timelimit will apply is if it is alleged that the administrative decision is null and void ( section CARDINAL ) of the Act ) .","On DATE the Constitutional Court delivered judgment ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u043a\u043e\u043d\u0441\u0442\u0438\u0442\u0443\u0446\u0438\u043e\u043d\u043d\u043e \u0434\u0435\u043b\u043e \u2116 DATE \u0433. , \u043e\u0431\u043d. , \u0414\u0412 \u0431\u0440\u043e\u0439 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. ) in proceedings that had been brought by CARDINAL members of ORG who considered , inter alia , that sections CARDINAL ) and CARDINAL ) of LAW of DATE should be declared contrary to LAW .","ORG dismissed the complaint in the following terms :","\u201c [ This ] court has already clearly and categorically expressed the view that \u2018 judicial review of administrative decisions is a constitutive element of the rule of law\u2019 ...","The court is of the view that the question of the judicial review of administrative decisions may be resolved only in accordance with the express wording of LAW . According to that provision , judicial review of administrative decisions may be limited only by statute . In the case at hand this means LAW [ of DATE ] .","In view of the wording of LAW in fine of LAW , the court may not come up with an interpretation providing exceptions to the exception . Only the legislature has the power , by statute , to exclude certain administrative decisions from judicial review . [ LAW ] does not lay down any criteria limiting the legislature \u2019s powers in this respect . This is a question falling within the legislature \u2019s competence ...","At the same time the court deems it necessary to point out that the legislature \u2019s right to exclude certain categories of administrative decisions from judicial review is not absolute . In exercising that right ORG must have regard to the main constitutional principles relating to the rule of law and the protection of the fundamental human rights . The power granted to ORG by Article CARDINAL \u00a7 CARDINAL in fine is an exception and has to be construed and applied restrictively . The character of this exception requires ORG to use its powers in this respect only when it has good and compelling reasons to do so . To hold otherwise would render the principle of judicial review meaningless . For this reason [ this court ] has jurisdiction to assess in each specific case whether the legislature \u2019s discretion has been exercised within the limits laid down in the LAW ...","An analysis of the decisions excluded from judicial review by LAW [ of DATE ] indicates that the legislature has remained within the bounds of its constitutional discretion in protecting the public interest and the interests of depositors . These are mainly acts of banking supervision , an area in which the competence of the supervisory body can not be supplanted by judicial decision . ... In all cases where the administrative decisions that are not subject to review affect the rights and legal interests of individual citizens , there are no obstacles to their seeking redress in a civil action and claiming compensation for the alleged damage .","In addition , the ORG considers it necessary to emphasise that the rule set out in LAW in fine of the LAW does not preclude the courts from ruling incidentally on the nullity of administrative decisions . To hold otherwise would mean that vitiated administrative decisions , such as decisions issued ultra vires , would be less easy to challenge than a statute , whose unconstitutionality can be established in proceedings before ORG . In this sense the restriction on reviewing administrative decisions is not absolute . \u201d","NORP Before DATE bank insolvency was regulated by ORG of DATE . From that date onward the newly adopted Banks Act of DATE became applicable to such proceedings ( until DATE , when its provisions relating to bank insolvency were superseded by LAW of DATE see paragraph CARDINAL above ) .","NORP The regime of bank insolvency set forth in LAW of DATE ( and largely followed by LAW of DATE ) contained a number of special features . Only the ORG , not creditors or the bank itself , could petition for a winding - up order against a bank ( former section FAC ) of LAW of DATE ) . The ORG had a statutory obligation to lodge such a petition after revoking a bank \u2019s licence on the ground of insolvency ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . The petition needed only specify the grounds on which the bank \u2019s licence had been revoked under section CARDINAL(CARDINAL ) of LAW of DATE ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . A certified copy of the ORG \u2019s decision to revoke the licence had to be enclosed with the petition ( ibid . ) . The petition was examined by the competent court at a hearing in the presence of a prosecutor from which the public was excluded ( former LAW of LAW of DATE ) . The court had no power to make an order for the restructuring of the bank ( former section CARDINAL of LAW of DATE ) . The bank was divested of the right to administer and dispose of its assets ( former section GPE ) of LAW of DATE ) , and , when granting the petition , the court was also required to immediately order the sale of the bank \u2019s assets and the distribution of the proceeds to its creditors ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . The court divested the bank \u2019s decision - making bodies ( such as the general meeting of shareholders and the board of directors ) of their powers ( former section CARDINAL(CARDINAL ) of LAW of DATE ) and appointed liquidators ( \u201e \u0441\u0438\u043d\u0434\u0438\u0446\u0438 \u201c \u2013 former section CARDINAL ) of LAW of DATE ) in whom most of these powers , including the right to represent the bank in court , were vested ( former section CARDINAL(CARDINAL ) of LAW of DATE , in conjunction with section CARDINAL(CARDINAL ) of LAW of DATE ( PERSON \u0437\u0430\u043a\u043e\u043d \u201c ) ) .","The decision - making bodies of a company in liquidation continue , however , to exist and may act on its behalf in certain limited circumstances ; for instance , when there is a conflict of interest between the company and the liquidators . Thus , in a decision of DATE ( \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 CARDINAL \u0433. \u043d\u0430 \u0412\u041a\u0421 , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 ) ORG held that the insolvent company , not the liquidator , had standing to appeal against the winding - up order . The rationale adopted by the court was that the liquidator might have a conflict of interest with the company . However , section CARDINAL(CARDINAL ) of ORG of DATE now provides that it is the BNBappointed special administrators ( see paragraph CARDINAL above ) who may appeal against a court order putting a bank into compulsory liquidation .","The court could appoint liquidators only from a panel of qualified persons named on a list drawn up by the ORG ( former section GPE ) of LAW of DATE ) . If a liquidator was subsequently struck off that list by the ORG , the court was bound to discharge him or her ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . In a decision of DATE ORG held that the insolvency court could not review a decision by the BNB to remove a person from that list , because the court had no discretion in this respect ( \u043e\u043f\u0440\u0435\u0434. \u2116 DATE \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 MONEY \u0433. , \u043d\u0430 ORG , V \u0433.\u043e. ) .","LAW of DATE was applicable mutatis mutandis and insofar as LAW of DATE did not contain special rules ( former section CARDINAL of LAW of DATE ) . Section CARDINAL of LAW of DATE , which thus appears to have been applicable , provides that a court order declaring a debtor insolvent and requiring it to be wound up is immediately enforceable ( see also section CARDINAL ) of LAW of DATE ) .","A winding - up order has the effect of automatically staying all pending enforcement proceedings against property forming part of the insolvent entity \u2019s estate ( section CARDINAL(CARDINAL ) of LAW of DATE , as applicable until superseded in DATE in respect of banks by section CARDINAL(CARDINAL ) of ORG , which provides for such proceedings to be stayed even earlier , namely when the ORG \u2019s decision revoking the bank \u2019s licence is published in ORG ) .","Creditors of the bank were required to submit their proofs of debt to the liquidators within DATE after the publication of the winding - up order ( former section CARDINAL(CARDINAL ) of ORG ) . The liquidators then examined the claims , drew up a list of agreed claims , and informed the creditors thereof by a notice published in , inter alia , ORG ( former section ORG ) of LAW of DATE ) . The creditors and shareholders of the bank owning PERCENT of the voting shares were entitled to lodge objections to the list with the liquidators ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . The liquidators were required to examine the objections within DATE in the presence of the debtor , the creditor whose claim was challenged , and the person who had made the objection ( section CARDINAL(CARDINAL ) of LAW of DATE , as in force at the material time ) . The liquidators then submitted the original or the amended list , as appropriate , to the insolvency court for approval . Any of the above persons could then repeat its objection before the court , which had a duty to examine it at a public hearing ( section CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW of DATE , as in force at the material time ) . An appeal lay against the court \u2019s judgment to ORG ( former section CARDINAL ) of LAW of DATE , as in force at the material time ) . If no objections were made before the court , it examined the list in private and approved it in a final judgment ( section CARDINAL(CARDINAL ) of LAW of DATE , as in force at the material time ) . The court \u2019s judgment was binding on the insolvent bank , the liquidator , and all the creditors ( former section CARDINAL ) of LAW of DATE , as in force at the material time ) .","The insolvent bank \u2019s assets may be sold off individually at auction and the proceeds then distributed among the creditors whose claims have been allowed ( former sections CARDINAL , ORG and CARDINAL of LAW of DATE , in conjunction with sections DATE of LAW of DATE , superseded in DATE by DATE of LAW of DATE ) . Alternatively , the liquidators may try to sell the bank \u2019s entire undertaking to another licensed bank , with the permission of the body responsible for overseeing the winding up of banks , ORG ( sections CARDINAL and CARDINAL of GPE of DATE ; see also former sections CARDINAL and CARDINAL of LAW of DATE ) .","DATE . A bank \u2019s paidup capital on incorporation must not be less than ORG CARDINAL ( BGN CARDINAL after the currency revalorization of CARDINAL DATE ) ( section CARDINAL ) of LAW of DATE ) . All payments made by the shareholders for subscribed shares must be in cash , until this minimum capital is attained ( section CARDINAL ) of LAW of DATE ) . The bank \u2019s capital must at all times surpass this amount ( section CARDINAL(CARDINAL ) of the BNB \u2019s Regulation no . CARDINAL of CARDINAL DATE on the capital adequacy of banks , superseded on DATE by CARDINAL ) of the BNB \u2019s Regulation no . CARDINAL of DATE on the capital adequacy of banks ) .","Also , a bank \u2019s capital adequacy : the ratio between its capital base \u2013 defined as its primary , or tierone , capital ( including paidup shares plus premiums and statutory and other reserves minus intangible assets , losses , and treasury shares DATE section CARDINAL of Regulation no . CARDINAL of CARDINAL DATE ) , plus supplementary capital elements , or tiertwo , capital ( including retained earnings , special reserves , hybrid capital instruments , subordinated debt \u2013 section CARDINAL of Regulation no . CARDINAL of CARDINAL DATE ) \u2013 and its riskweighted assets and offbalancesheet items may not be PERCENT ( section CARDINAL ) of Regulation no . CARDINAL of CARDINAL DATE ; see also section CARDINAL(CARDINAL ) of the BNB \u2019s Regulation no . CARDINAL of DATE on the capital adequacy of banks ) .","NORP Under NORP law banks are jointstock companies ( \u201e \u0430\u043a\u0446\u0438\u043e\u043d\u0435\u0440\u043d\u043e \u0434\u0440\u0443\u0436\u0435\u0441\u0442\u0432\u043e \u201c \u2013 section CARDINAL(CARDINAL ) of LAW of DATE ) . The capital of jointstock companies may be increased by , inter alia , issuing new shares ( section CARDINAL(CARDINAL ) of LAW of DATE ) . Once these shares have been subscribed , the subscriber is under an obligation to pay cash or to provide noncash consideration for the shares ( section DATE ) of LAW of DATE ) . The manner and conditions for providing noncash consideration are laid down in sections CARDINAL and CARDINAL of LAW of DATE ( see also new sections DATE and DATE of LAW of DATE ) .","If a bank decides to increase its capital by issuing shares for noncash consideration , it has to obtain the prior written approval of the BNB ( section CARDINAL(CARDINAL)(CARDINAL ) , now section CARDINAL(CARDINAL)(CARDINAL ) , of LAW of DATE ) . Any increase made without such approval is null and void ( section CARDINAL ) , now section CARDINAL ) , of LAW of DATE ) .","At the relevant time section CARDINAL(CARDINAL ) of LAW of DATE prohibited any set - off between the obligation of a member of a limited liability company ( \u201e \u0434\u0440\u0443\u0436\u0435\u0441\u0442\u0432\u043e \u0441 \u043e\u0433\u0440\u0430\u043d\u0438\u0447\u0435\u043d\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442 \u201c ) to pay up his or her shares against debt due by that company to the member . At the time it was unclear whether this prohibition also applied to jointstock companies in the absence of any express provision . Although expressed obiter , ORG view appears to have been that it did ( \u043e\u043f\u0440\u0435\u0434. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 CARDINAL \u0433. \u043d\u0430 ORG , V \u0433.\u043e. ) . In DATE the legislature clarified the issue by introducing a new section CARDINALa of LAW of DATE , whereby the proscription was explicitly expanded to both limited liability companies and jointstock companies .","Section CARDINAL(CARDINAL ) of ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 , \u043f\u0440\u0438\u0447\u0438\u043d\u0435\u043d\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 \u201c ) provides that the ORG is liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . LAW ) provides that compensation for damage flowing from unlawful decisions may be claimed after the decisions concerned have annulled in prior proceedings . The court examining the claim for compensation can not inquire into the validity of a voidable decision ; it may merely examine whether a decision is null and void . Only natural persons , not juristic persons , may claim compensation under LAW ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 DATE \u0433. , \u043d\u0430 ORG , V \u0433.\u043e. ) . Persons seeking redress for damage occasioned in circumstances falling within the scope of the LAW have no claim under the general law of tort , as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) ; \u0440\u0435\u0448. \u2116 DATE \u0433. \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 DATE \u0433. \u043d\u0430 ORG , GPE \u0433.\u043e. ; \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 ORG \u0433. \u043d\u0430 ORG , ORG , \u0406V\u0431 \u043e\u0442\u0434. ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23062","languageisocode":"ENG","respondent":"GRC","branch":"ADMISSIBILITY","date":2003,"docname":"KARABOUYIOUKLOU v. GREECE","importance":4,"conclusion":"Inadmissible","judges":"Fran\u00e7oise Tulkens","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Xanthi . The Government are represented by PERSON and PERSON of ORG , Acting Agents .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant , who considers himself a member of the NORP minority of Thrace , is a graduate of ORG . He used to work as a teacher in the minority schools of CARDINAL . His conditions of employment were not different from those of other civil servants .","On DATE ORG GPE called all the NORP teachers of the minority schools of GPE to attend an educational meeting on DATE . The aim of the meeting was to present new books for the teaching of the NORP language , which would be delivered to the directors of the schools between QUANTITY and DATE .","A similar order was issued on DATE by ORG .","On DATE the Co - ordination ORG of the NORP Minority of Western Thrace issued a statement to the effect that the content of these books \u201c was in breach of the autonomy of the NORP Minority of Western Thrace \u201d and failed to respect certain international agreements . The NORP teachers were called upon not to collect these books and the NORP pupils not to attend school DATE , in order to voice the protest of the NORP Minority of Western Thrace .","On DATE ORG issued a statement to the effect that the NORP schools of LOC would be closed DATE , because the NORP teachers of LOC were against the NORP language books which ORG intended to distribute to the pupils of the minority schools . The statement also said that all the NORP teachers of LOC would participate in the strike . Reference was made to the members of ORG who were graduates of ORG . The statement specified that all those who felt they were NORP and who wanted to learn or teach the NORP language would take part in the boycott .","On an unspecified date , a NORP religious leader , the mufti of Xanthi , called on the NORP teachers who felt they were NORP , not to go to the presentation of the books on DATE .","On DATE CARDINAL teachers of the minority schools of Xanthi , including the applicant , signed a statement to the effect that they would not attend the educational meeting in ORG in order to protest about certain unfair decisions against them concerning posting , transfer and secondment and their exclusion from training seminars in GPE and GPE . They specified that they would not carry out their duties DATE .","On DATE ORG of ORG of the NORP Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights .","On DATE ORG decided to institute disciplinary proceedings under LAW against CARDINAL minority school teachers , including the applicant , for having failed to attend the educational meeting of DATE .","On DATE ORG ordered an inquiry and decided provisionally to suspend the applicant from his duties for DATE pending the outcome of the disciplinary proceedings against him .","On DATE ORG confirmed the decision of ORG regarding the provisional suspension of the applicant from his duties .","On DATE ORG issued a decision in which it considered the following :","\u2013 Firstly , the applicant had been asked by his superiors to attend the educational meeting of CARDINAL DATE but had failed to do so , arguing that attending the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger . However , ORG considered that this excuse was not valid , because the meeting would have taken place in the city of Xanthi far from the applicant \u2019s school area . Moreover , the applicant took part in the strike between CARDINAL and DATE complying with the order and appeal of the irregular Co - ordination ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE . He had accused ORG persecuting him . His illegal acts had contributed to creating tension and commotion in the minority community . The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in LOC . Thus , he had become an agent of foreign anti - NORP powers . These facts constituted the following disciplinary offences : not having faith in and dedication to his country ( Article CARDINAL \u00a7 CARDINAL\u2013CARDINAL of ORG ) , refusing to discharge his duties or employing obstructive tactics ( Article CARDINAL \u00a7 CARDINAL of the Code ) , taking part in a strike in breach of LAW and the relevant legislation ( LAW of the Code ) and intentionally engaging in an act or omission which could damage or endanger the interests of ORG Article CARDINAL \u00a7 CARDINAL\u2013CARDINAL of the Code ) .","\u2013 Secondly , the applicant had publicly criticised ORG on the ground that the new books were distributed in breach of international agreements concluded by GPE . As a result , he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments ( LAW of the above - mentioned Code ) .","\u2013 Thirdly , the applicant had become an organ of irregular committees acting against the interests of the nation . His actions had stirred up trouble in the minority community and had led to the involvement of NORP newspapers , to tension between the CARDINAL countries , and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools . As a result , the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law ( LAW ) .","ORG was fully satisfied that the applicant \u201c acting in full conscience and with intent and malice , behaving in a manner incompatible with [ his ] status as civil servant , acting against the nation and obeying the commands of anti - NORP power structures , aimed at destabilising the region where the situation was until then normal and creating social unrest \u201d . In the light of all the above , the ORG decided to dismiss the applicant .","On DATE ORG ordered the applicant \u2019s dismissal by virtue of LAW no . CARDINAL\/CARDINAL . Under that decree , pertaining to the appointment and career of NORP teachers in the minority schools of NORP , the ORG is the competent authority to pronounce the termination of service of NORP teachers .","On DATE the applicant challenged the decision of ORG and the ORG \u2019s decision before ORG . He claimed that he did not lack faith in and dedication to his country , that he had not acted against social order , that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government , that he had not refused to discharge his duties but had instead participated in a lawful strike , that he had not engaged in any acts which could have caused damage to the ORG or in any criminal offences , that he had been forced not to collect the books in person because his life had been threatened by other NORP , that the ORG had attributed wrong motives to his actions which were not anti - NORP and that his punishment aimed at his destruction . He further submitted that the hearing before ORG had not been preceded by a proper inquiry , that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that ORG had not heard a number of witnesses he had proposed . Finally , the applicant argued that the decision of ORG was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty .","On DATE ORG rejected the applicant \u2019s appeal against the decision of ORG of DATE . The ORG considered that the inquiry ordered on DATE satisfied the requirements of the law and that ORG had not failed to examine any witnesses proposed by the applicant . The ORG also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of CARDINAL DATE by which the disciplinary proceedings had been instituted . The applicant could only be punished for having failed to attend the educational meeting of DATE . However , ORG and ORG remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings . The ORG considered that the applicant \u2019s failure to attend the meeting of DATE in order to participate in the strike CARDINAL DATE amounted to the disciplinary offence of serious disobedience under LAW of LAW . The ORG found that the punishment imposed was appropriate given the circumstances in which the offence had taken place . The ORG referred in this connection to the statement of DATE of the Co - ordination ORG of the NORP Minority of Western Thrace , the statement of QUANTITY DATE of ORG and the statement of the mufti of Xanthi which called on all the NORP teachers who considered themselves NORP not to attend the educational meeting of DATE . The ORG considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above - mentioned statements of organisations which purported to represent the self - proclaimed NORP minority of LOC . Seen in the light of the above , the applicant \u2019s actions had had as a result the disruption of the functioning of the minority schools in LOC in which the ORG was particularly interested . They had also resulted in social unrest among the NORP minority of this sensitive region . This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between GPE and neighbouring countries and in the disruption of the harmonious coexistence between the NORP citizens , NORP and NORP , who lived in LOC .","Finally , the ORG considered that the decision of the ORG was duly reasoned . All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of DATE , although he had been asked to do so by his superiors . The decision also specified that the applicant had complied with the order and appeal of the irregular ORG of ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE ( decision no . CARDINAL\/CARDINAL ) .","On DATE the Prefect of Xanthi revoked his decision of CARDINAL DATE and , in compliance with decision no . CARDINAL of ORG , ordered the applicant \u2019s dismissal as from the same date .","On DATE ORG struck out the proceedings instituted against the ORG \u2019s decision of CARDINAL DATE , on the ground that the decision complained of had already been revoked by the ORG ( decision no . ORG ) .","On DATE the ORG ordered for the third time the applicant \u2019s dismissal .","On DATE the applicant appealed against the ORG \u2019s decision of DATE to ORG of PERSON . He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom . He further complained that he was not previously heard by the Prefect . The applicant further invoked Articles CARDINAL and CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL .","On DATE ORG rejected the appeal ( decision no . CARDINAL ) . The court held that , by definition , the ORG had a better knowledge of the local situation than the Minister ; therefore , it could not be sustained that the delegation to the ORG to pronounce the termination of service of NORP teachers violated the religious freedom . Moreover , the court held that the ORG \u2019s decision aimed at complying with the relevant decisions of ORG ; therefore , the previous hearing of the applicant was not required . The applicant did not appeal against this decision to ORG .","The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums ( arrears of salaries , compensation for his dismissal , etc . ) . The applicant alleges that a set of proceedings instituted on DATE before ORG of Rodopi is still pending . He further alleges that on DATE ORG notified to him a decision of ORG that his pecuniary claims had been statute - barred .","On DATE the applicant instituted proceedings also before ORG of PERSON . On DATE the court noted that the applicant had perceived his salaries for a certain period after his dismissal . It declared his recourse inadmissible on the ground that the applicant was not duly represented by a lawyer ( decision no . CARDINAL ) . The applicant did not appeal against this decision within DATE time - limit provided for by LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79542","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2007,"docname":"KOHLER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She lodged the application also in the name of her daughter PERSON ( second applicant ) , a NORP national born in DATE .","s , may be summarised as follows .","The second applicant , PERSON ( J. ) , is the daughter of the first applicant and PERSON She was born out of wedlock on DATE . Pursuant to the statutory provisions ( section CARDINAL \u00a7 CARDINAL of LAW ) the first applicant had sole custody of J. who has been living with her mother since her birth .","At DATE , PERSON was diagnosed with a general development and autistic disorder and with retrogressive speaking capacities . She was not admitted to an ordinary nursery school .","On DATE ORG lodged a motion with ORG ( no . CARDINAL F CARDINAL\/CARDINAL ) to restrict the first applicant \u2019s custodial right to decide on her daughter \u2019s whereabouts and health care and to appoint ORG as special curator ( Erg\u00e4nzungspfleger ) to deal with these issues .","On DATE the GPE ORG appointed PERSON , a lawyer , as J. \u2019s curator ad litem to represent her interests the custody proceedings .","On DATE the ORG refused to change its decision to appoint a curator ad litem on the first applicant \u2019s motion , arguing that no appeal lay against such an interim decision . In any event , the appeal would also be ill - founded , as the first applicant failed to give convincing reasons against Ms L .- K. \u2019s appointment . On DATE ORG dismissed the first applicant \u2019s appeal against this decision .","On DATE ORG , having heard the first applicant , her daughter \u2019s curator ad litem and a representative of ORG , restricted the first applicant \u2019s sole custody over her daughter pursuant to section DATE of LAW . It ruled that the first applicant was no longer entitled to choose which nursery school or school her daughter should attend and had no right to determine her daughter \u2019s whereabouts . It appointed ORG as special curator to decide on these issues . The court authorised ORG to enforce the child \u2019s surrender , if necessary with the help of the police , in order to secure the execution of the court \u2019s decision .","Having regard to the report of a doctor working for the city of GPE dated DATE , earlier medical reports and its own attempt on DATE to hear PERSON ( with whom , however , a communication had proved impossible ) , ORG found that it was almost certain that J. suffered from a severe development disorder and showed clearly autistic behaviour . Therefore , PERSON was in need of care in a specialised institution . The first applicant was acutely endangering her daughter \u2019s mental welfare by refusing to accept her daughter \u2019s illness and to send the child to an institution responding to her needs . Instead , the first applicant insisted on sending her daughter to an ordinary ( nursery ) school or to a school merely treating speaking irregularities . Her custody of J. therefore had to be restricted in respect of these issues .","ORG observed that it was in PERSON \u2019s best interests to attend an institution individually educating children with autistic behaviour while living with her mother . However , should the first applicant continuously refuse to send her daughter to a suitable institution it was necessary , as a last resort , to separate mother and daughter and to place J. in a home providing her with the necessary individual care .","On DATE ORG dismissed the first applicant \u2019s motions to rectify the protocol of the court \u2019s hearing . It found that the changes proposed by the first applicant concerned additional information she had not yet given in the hearing itself .","On DATE ORG dismissed the applicant \u2019s appeal against ORG decision dated DATE , as no appeal lay against this decision .","On DATE ORG refused to admit the applicants\u2019 constitutional complaint against the decisions of DATE , DATE , DATE and CARDINAL DATE ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","In DATE J. attended test lessons in an ordinary school together with her mother and grandmother . At the outset PERSON was crying and shouting loudly and refused to stay in the classroom . She only calmed down after she had been running up and down the corridor with her mother and both had been shouting for TIME . Back in the classroom , she refused to follow any of the teacher \u2019s instructions and did not react to any questions . She then wrote the alphabet on the blackboard and , when interrupted , had a rage attack and was jumping around in the classroom to calm down . She did not speak a single word during the lessons and did not establish contact with anyone . In further test lessons at DATE PERSON was only running around in the classroom , did not react to any instructions and frightened other children by running closely towards them uttering inarticulate sounds . In view of this , the school director and teachers informed the first applicant that it was impossible to educate J. and respond to her needs in an ordinary school .","On DATE J. was taken away from her mother with the help of the police on the motion of ORG , acting as PERSON \u2019s special curator , as her mother had refused to allow her to attend a specialised school taking account of her educational needs . She was placed in an open youth home DATE the location of which was not disclosed to the first applicant DATE in which she subsequently attended a school furthering its pupils\u2019 learning progress individually .","On DATE ORG , having heard the first applicant , the second applicant \u2019s curator ad litem and a representative of ORG , dismissed the applicant \u2019s appeal against ORG decision dated DATE , which thereby became final .","On DATE the applicants lodged a complaint with ORG ( no . CARDINAL BvR CARDINAL\/CARDINAL ) against the impugned decisions of ORG dated DATE and of ORG dated DATE .","In CARDINAL letter dated DATE ORG invited the first applicant to contact ORG in order to set up a visiting arrangement . However , no contacts between mother and daughter could be built up .","A subsequent action for damages brought by the first applicant with the GPE civil courts against ORG curator ad litem because of her conduct in the custody proceedings was to no avail . ORG refused to admit the first applicant \u2019s constitutional complaint concerning these decisions on DATE ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG refused to admit the applicants\u2019 constitutional complaint ( no . CARDINAL BvR CARDINAL\/CARDINAL ) against the decisions of DATE of DATE .","On DATE the first applicant lodged a motion with ORG ( no . CARDINAL F CARDINAL\/CARDINAL ) to be surrendered her daughter . She argued that the separation from her and her daughter \u2019s placement in a youth home constituted an illegal deprivation of liberty . Moreover , her daughter \u2019s right to be integrated in an ordinary school as protected by the LAW had been breached .","In its report dated DATE ORG stated that PERSON had settled well in the institution for disabled children she lived in since DATE . While her father was visiting her regularly since DATE her mother had not reacted to several attempts made in letters addressed to her by ORG in DATE to re - establish contacts with her daughter and showed no real interest in being informed about her daughter \u2019s development . Sending J. back to live with her mother would not be in ORG \u2019s best interests .","On DATE ORG held a hearing , in which it heard the first applicant , a representative of ORG and the child \u2019s father PERSON It did not hear J. in person , because , as confirmed by PERSON , a verbal communication with her was impossible , as had also been found by the court itself in its hearing on DATE in the custody proceedings .","On DATE ORG dismissed the first applicant \u2019s motion to surrender her daughter to her . It found that the first applicant did not have a right to be rendered her daughter pursuant to section CARDINAL \u00a7 CARDINAL of the Civil Code . The court noted that ORG decision dated DATE restricting the first applicant \u2019s custody of her daughter had become final . ORG , acting as ORG \u2019s special curator , had therefore been entitled to order her full - time placement in a home and to take the child away from her mother , as had been done on DATE . In particular , a child \u2019s right to attend an ordinary school was subject to his or her physical and mental ability to meet its demands . As had been found by the civil courts in previous decisions , J. could not meet these demands due to her illness and could not be expected to do so in the future .","ORG further found that there was nothing to indicate that it was in PERSON \u2019s best interests to re - award custody in all respects to her mother . In particular , J. \u2019s placement in a youth home which furthered her adequately in view of her illness had clearly proved to be beneficial to her . As long as her mother was unable to accept that her daughter would be absolutely overstrained in and could not be integrated in an ordinary school , the child could not be taken care of in her mother \u2019s home .","In an obiter dictum ORG noted that it could not understand why ORG refused the first applicant any contacts with her daughter whose whereabouts still had not been disclosed to her . It considered it indispensable for the child \u2019s welfare to organise visits of her mother as soon as possible .","On DATE ORG ( no . CARDINAL UF CARDINAL\/CARDINAL ) , following the first applicant \u2019s appeal , heard the first applicant , PERSON \u2019s curator ad litem and a representative of ORG . The latter stated that she had now informed the first applicant about her daughter \u2019s whereabouts and offered to organise contacts either at the first or the second applicant \u2019s place of residence . The first applicant stated that she had not visited her daughter yet because she feared that ORG could again assert that she was endangering her daughter \u2019s welfare which , in her view , amounted to an allegation that she had abused or ill - treated her daughter .","On DATE ORG dismissed the first applicant \u2019s appeal as ill - founded . It found that ORG had acted legally in taking away the child from her mother and placing the child in a youth welfare institution , as its decision could be based on ORG decision dated DATE .","ORG observed that pursuant to the statements of a child psychiatrist dated DATE it was clear that J. showed severe signs of autism so that intensive care was necessary which her mother could not provide and which made it impossible for her to attend an ordinary school for the time being . As the first applicant was unable to understand her daughter \u2019s needs it was necessary to uphold the partial deprivation of her custody .","On DATE the first applicant lodged a complaint with ORG against the decisions of ORG dated DATE and of ORG dated DATE . She argued in particular that the continuous restriction of her custody and the failure to surrender her daughter , who was kept in a care institution and had to attend a school for disabled children , violated her parental rights and her daughter \u2019s right to liberty and education as guaranteed by LAW .","On DATE ORG refused to admit the first applicant \u2019s constitutional complaint ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG refused to admit another constitutional complaint lodged by the applicants against , inter alia , the decisions of ORG dated DATE and of ORG dated DATE ( CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE E. , the father of the second applicant , brought a motion with ORG ( no . CARDINAL F CARDINAL\/CARDINAL ) to be granted access to his daughter .","On DATE ORG dismissed the first applicant \u2019s motion for bias against ORG judge MONEY On DATE ORG dismissed the first applicant \u2019s appeal against this decision as ill - founded . In the court \u2019s view , the fact alone that judge ORG had already sat in earlier cases brought by the first applicant in FAC in accordance with the court \u2019s internal assignment of functions did not warrant the conclusion that he was biased . The applicant \u2019s constitutional complaint against these decisions was to no avail ( decision no . CARDINAL BvR CARDINAL of DATE ) .","On DATE ORG , having heard the first applicant and the child \u2019s father PERSON and having consulted ORG , granted PERSON a right of access to his daughter for TIME once in DATE .","On DATE ORG dismissed the first applicant \u2019s appeal against this decision as inadmissible . It argued that the first applicant was not prejudiced by the decision as she had expressly claimed not to object to the access order , but merely complained against the court \u2019s reasoning referring to her daughter as being a \u201c sick child \u201d .","On DATE ORG refused to admit the first applicant \u2019s constitutional complaint against the latter decision ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG dismissed as inadmissible the applicants\u2019 motion for a judicial decision on the refusal of ORG to institute criminal proceedings for fraud against P. It observed that the applicants failed to set out in a comprehensible manner facts which could warrant the conclusion that PERSON , a representative of ORG , had committed fraud .","On DATE ORG refused to admit the applicants\u2019 constitutional complaint ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG dismissed as inadmissible the applicants\u2019 motion for a judicial decision on the refusal of ORG to institute criminal proceedings for having threatened another person with the commission of a crime against PERSON","It found that the applicants\u2019 motion was in any event ill - founded as there were no sufficient grounds for suspicion that an offence had been committed by the impugned representatives of ORG and policemen when separating PERSON from her mother on DATE . A further identical motion lodged with ORG was to no avail .","On DATE and on DATE ORG refused to admit the applicants\u2019 constitutional complaints against ORG decisions ( nos . CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL and CARDINAL BvR CARDINAL\/CARDINAL ) .","Pursuant to section DATE \u00a7 CARDINAL of the Civil Code , parental custody encompasses the right to legal representation of the child . It is uncontested that the scope of the right to legal representation is identical to the \u2013 possibly restricted \u2013 scope of a parent \u2019s right of custody .","Pursuant to section CARDINAL \u00a7 CARDINAL of LAW , the right to personal custody comprises the right to claim the surrender of the child from anyone illegally withholding the child from one or both parents .","Section CARDINAL \u00a7 CARDINAL of the Civil Code provides that the family courts are entitled to take the necessary measures to avert dangers to the physical , mental or spiritual welfare of a child caused by an abusive exercise of parental custody , by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers . Pursuant to section CARDINAL \u00a7 CARDINAL of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including aids by public authorities ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81114","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2007,"docname":"CASE OF NOVAK v. CROATIA","importance":4,"conclusion":"No violation of Art. 3","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","Following a conviction for a dangerous activity , the applicant was incarcerated in LOC during an unspecified period in DATE and DATE .","In a judgment of DATE ORG convicted the applicant of fraud and gave him a suspended sentence of DATE imprisonment . In addition , it ordered him to undergo compulsory psychiatric treatment as he had been diagnosed as suffering from post - traumatic stress disorder ( PTSD ) . It appears that the suspension of the sentence was lifted because the applicant was again sent to ORG from CARDINAL DATE until DATE .","In a judgment of CARDINAL DATE ORG convicted the applicant of fraud and gave him a suspended sentence of DATE imprisonment . However , on an appeal by the ORG Attorney , on DATE ORG altered the sentence to DATE unconditional imprisonment .","On DATE a judge of ORG with responsibility for the execution of sentences ordered the applicant to start serving his prison sentence in FAC on DATE . The applicant applied for the order to be postponed on account of his PTSD condition . On DATE a ORG judge responsible for the execution of sentences dismissed the application because the applicant had failed to submit medical documentation concerning his condition .","The applicant appealed against that decision and on DATE ORG dismissed his appeal . It found , firstly , that the medical documentation subsequently submitted by the applicant was outdated since it originated from DATE , DATE and DATE , and , secondly , that during his prison term the applicant would be provided with adequate medical care .","The applicant started to serve his sentence on DATE in FAC . He was placed in cell no . CARDINAL , measuring CARDINAL by QUANTITY , with CARDINAL . The number of inmates ranged from CARDINAL QUANTITY , so that some inmates had to sleep on the floor or on the table . The table in the cell was designed to accommodate QUANTITY persons , so that the inmates had to eat on the beds or on the floor . There was CARDINAL window in the cell , covered with wire so that light and air hardly reached the cell .","On DATE the applicant was removed from cell no . CARDINAL and placed in cell no . CARDINAL , measuring QUANTITY , which he shared with CARDINAL other inmates .","NORP The applicant 's correspondence with the ORG was opened .","The medical documentation presented by the applicant shows that he was examined on DATE by the prison physician , who found that the applicant had suffered from PTSD since DATE and also from a personality disorder . The prison doctor prescribed medication , a drug called Fluval .","On DATE the applicant was transferred to ORG but was sent back to ORG DATE because the psychiatrist at the hospital found no reason to keep him there . The applicant 's treatment was changed to drugs named PERSON and GPE . On DATE the applicant complained that the drugs prescribed were \u201c too heavy \u201d . On DATE the medication prescribed to the applicant was again changed to ORG . No psychiatric treatment was provided .","On DATE the applicant applied for a transfer to another prison or the immediate termination of his prison sentence on account of the lack of adequate treatment for PTSD in FAC . He further complained about the overcrowded conditions in the cell where he was being held . On DATE a ORG judge responsible for execution of sentences dismissed the application , finding that the applicant was not in need of any additional treatment . However , as to the overcrowded conditions , the judge found :","\u201c ... the prisoner 's allegations concerning the number of inmates placed in one cell are true . However , such placement of prisoners is due to the considerable fluctuation in their number because persons sentenced to DATE imprisonment serve their sentences in [ Vara\u017edin ] Prison .","The Vara\u017edin Prison authorities shall remove the said insufficiencies so as to afford enough space to inmates ... \u201d","The applicant appealed against that decision , but his appeal was dismissed by a CARDINAL - judge panel of the same court on DATE .","On an unspecified date the applicant filed an application for early release from the prison because he had not received adequate treatment for PTSD . On CARDINAL May CARDINAL ORG dismissed the application .","On an unspecified date the applicant contacted ORG to complain about the inhuman conditions in FAC , alleging that he was being held in a cell measuring CARDINAL by QUANTITY with CARDINAL and that the number of inmates in the cell surpassed the number of beds . He alleged that such cramped conditions had had an adverse effect on his health since he was suffering from PTSD . Furthermore , he complained that there was insufficient daylight in the cell .","In a letter of CARDINAL DATE the ORG informed the Department for ORG ( PERSON izvr\u0161enje sankcija ) about the applicant 's allegations and sought an answer from it . On DATE ORG ( PERSON pravosu\u0111a ) answered the ORG 's enquiry . As to the applicant 's health condition , it was stated that he had been diagnosed with PTSD and therefore sent to the psychiatric ward of ORG on DATE . However , a psychiatrist from that hospital had found that there had been no indications requiring the applicant 's hospitalisation . Furthermore , the applicant himself had asked not to be kept in the hospital . During his detention in FAC he had been administered drugs . As to the applicant 's allegations about the inhuman conditions in his cell , it was stated that the conditions of the execution of his sentence complied with the standards prescribed in Part XI of FAC and that each cell had access to daylight .","In a decision of CARDINAL DATE ORG released the applicant on licence . His licence expired on DATE .","NORP The ORG visited GPE DATE . Its findings with regard to ORG were as follows ( extract from the report to ORG on the visit to GPE from DATE , ORG . ( DATE ) CARDINAL ) :","\u201c CARDINAL . ... However , occupancy rates in the psychiatric ward were rather high , a drawback which was exacerbated by the fact that patients tended to spend most of DATE in their rooms ...","In all wards , the general atmosphere in the patients ' rooms was rather drab ; efforts should be made to provide a more positive therapeutic environment . The practice observed in the hospital of having patients wear pyjamas \/ nightgowns continuously should also be reviewed . As regards , in particular , psychiatric patients , this practice is not conducive to strengthening personal identity and self - esteem ; individualisation of clothing should form part of the therapeutic process .","...","... The delegation was less impressed by the quality of psychiatric treatment , which was limited essentially to pharmacotherapy ( though there were no indications of the misuse of medication ) . The hospital 's doctors acknowledged that there was a clear need to develop rehabilitative and other therapeutic activities ( occupational therapy , group therapy , individual psychotherapy , etc . ) for the establishment 's psychiatric patients ; however , they commented that limited staff resources and the very nature of the establishment hindered progress in this area .","NORP The ORG recommends that serious efforts be made to develop rehabilitative and other therapeutic activities for psychiatric patients at the hospital ; the present state of affairs is untenable from a therapeutic standpoint . ... \u201d","DATE of LAW ( Ustav PERSON ) provides as follows :","\u201c No one shall be subjected to any form of ill - treatment ... \u201d","The Enforcement of Prison Sentences Act ( Zakon o izvr\u0161avanju kazne zatvora , Official Gazette no . CARDINAL of DATE , and no . CARDINAL of DATE ( consolidated text ) DATE \u201c the LAW \u201d ) came into force on DATE , whereas the provisions concerning the judge responsible for the execution of sentences came into force DATE , on DATE . The relevant provisions of the Act read as follows :","\u201c ( CARDINAL ) Inmates shall have the right to complain against an act or decision of a prison employee .","( CARDINAL ) Complaints shall be lodged orally or in writing with a prison governor , a judge responsible for the execution of sentences or ORG . Written complaints addressed to a judge responsible for the execution of sentences or ORG shall be submitted in an envelope which the prison authorities may not open ... \u201d","\u201c ( CARDINAL ) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him , or limiting him in , any of the rights guaranteed by LAW .","( CARDINAL ) NORP for judicial protection shall be decided by the judge responsible for the execution of sentences . \u201d","\u201c ( CARDINAL ) The accommodation of inmates shall meet the required standards in terms of health , hygiene and space , including climatic conditions .","( CARDINAL ) ORG shall as a general rule be accommodated in separate rooms ...","( CARDINAL ) ORG rooms shall be clean , dry and of adequate size . Each inmate shall have QUANTITY and QUANTITY of space in the room .","( CARDINAL ) Every room ... must have daylight and artificial light ...","( CARDINAL ) ORG and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions , whenever they wish to do so .","( CARDINAL ) ORG shall have drinking water at their disposal at all times . \u201d","\u201c ( CARDINAL ) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... \u201d","\u201c ( CARDINAL ) Inmates shall have the right to unlimited correspondence at their own expense .","...","( CARDINAL ) Inmates shall have the right to correspond with their lawyer , the ORG authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters ... \u201d","Rule CARDINAL of FAC ( ORG red za zatvorenike i ka\u017enjenike PERSON u Vara\u017edinu ) provided that letters addressed to lawyers , ORG authorities or international organisations for the protection of human rights were not to be opened by the prison authorities ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80327","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF KEMAL KAHRAMAN AND AL\u0130 KAHRAMAN v. TURKEY","importance":3,"conclusion":"Violation of Art. 6-1 and 6-3-c;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"","text":["The applicants were born in DATE and DATE respectively . They are serving sentences in FAC , GPE .","On DATE the applicants , who were detained in FAC for being members of the IBDA - C ( ORG ) , allegedly incited an insurrection against the prison administration . The prison officers together with soldiers intervened in the uprising in order to bring it to an end . During the incident the applicants and the security forces both sustained injuries which were recorded in medical reports . The security forces drew up an incident report after the operation .","On DATE the public prosecutor , prison director and prison officers drew up a damage - assessment report concerning the incident .","On DATE the public prosecutor asked the applicants for their statements . The applicants declared that they wished to make their statements in the presence of their lawyers .","On DATE and DATE , the public prosecutor took statements from CARDINAL complainants who were prison officers and CARDINAL complainant who was a soldier .","On DATE the applicants gave their statements to the public prosecutor with their lawyer present . The prosecutor asked the applicants whether they had any arguments against the damage - assessment report . The same day , an on - site investigation was conducted inside the prison .","On DATE the public prosecutor filed an indictment with ORG , accusing the applicants of insulting an officer and of insurrection against the prison administration .","On DATE ORG held the first hearing and demanded the presence of the complainants and the CARDINAL accused , including the applicants , at the following hearing .","At the second hearing on DATE , ORG ascertained the applicants ' identities and asked them to submit their defence . The applicants maintained that they wished to make their statements in the presence of their lawyers . Accordingly , the court sent a letter to the public prosecutor 's office requesting that lawyers from ORG be assigned to the applicants . At the same hearing , the court took statements from the prison officers who were involved in the incident .","On DATE , CARDINAL lawyers who were members of ORG were assigned to represent the applicants . However , they did not attend any of the ensuing hearings .","On CARDINAL DATE the court noted that the applicants had been sent to PERSON for administrative reasons . The court issued a rogatory letter to ORG , requesting that the latter obtain the applicants ' statements .","On DATE ORG , acting under powers delegated to it by ORG , pursuant to LAW , took statements from the applicants . According to TIME of ORG , the applicants were reminded of their rights in accordance with LAW , which also included the right to a lawyer . The applicants stated that they were aware of their rights and would defend themselves .","ORG held CARDINAL further hearings in the absence of the applicants .","On DATE ORG noted that the applicants ' statements had been sent to it by ORG .","On DATE ORG , in absentia , acquitted the applicants of insulting the prison officer , but convicted them of insurrection against the prison administration . The court relied on the applicants ' statements , the statements of the complainants , the on - site investigation report , the witness statements and the experts ' opinions . The applicants were each sentenced to DATE imprisonment .","On DATE the applicants appealed against the judgment to ORG . In their appeal petitions , they stated that they were only brought before ORG once , at the beginning of the proceedings , when the court had only ascertained their identities . They further maintained that the public prosecutor 's indictment had not been previously served on them , thus preventing them from submitting their defence , and that they had requested legal representation , which had not been forthcoming . They finally submitted that they were not asked to submit their final statements and the judgment was pronounced in their absence .","On DATE ORG upheld the judgment of ORG .","On DATE the new Criminal Code came into force . Consequently , ORG has scheduled a hearing for DATE with a view to adjusting the applicants ' sentences , pursuant to the provisions of the new LAW ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83070","languageisocode":"ENG","respondent":"GEO","branch":"CHAMBER","date":2007,"docname":"CASE OF PATSURIA v. GEORGIA","importance":3,"conclusion":"Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and is currently detained in NORP No . CARDINAL Prison .","Under a contract of DATE , ORG ( \u201c the Ministry \u201d ) undertook to transfer to the applicant PERCENT of the shares of the \u201c ORG \u201d ( \u201c the company \u201d ) , on condition that he , amongst other obligations , increased the company \u2019s initial capital to CARDINAL NORP laris ( EUR CARDINAL,CARDINAL ) within DATE of signing the contract .","On DATE and DATE , ORG requested an up - date of the progress made in the performance of the contractual obligations . The applicant replied by submitting documents , according to which the amount of ORG CARDINAL ( EUR CARDINAL ) , initially placed with a NORP bank , had been transferred to the company \u2019s account opened with a NORP bank .","Following the recommendation of ORG ( a ORG agency ) , ORG ( \u201c the ORG \u201d ) examined the applicant \u2019s financial operations . In a decision of CARDINAL DATE , a senior prosecutor of the ORG , having established the authenticity of the bank records submitted by the applicant , refused , pursuant to LAW ( \u201c the ORG \u201d ) , to institute criminal proceedings for an alleged falsification of those documents . ( The applicant did not submit a copy of that decision to the ORG . )","On DATE the Prosecutor General personally opened a criminal case regarding the misappropriation of PERCENT of the ORG \u2019s shares by fraud and the falsification of bank documents , offences envisaged respectively by ORG CARDINAL \u00a7 CARDINAL ( b ) and CARDINAL of LAW ( \u201c the ORG \u201d ) . ( The parties did not submit a copy of that decision . )","On DATE the applicant was charged and taken into custody .","Initially , the applicant was placed in a \u201c quarantine cell \u201d at GPE No . FAC . According to him , the cell was filthy , dilapidated , infested with vermin , and without ventilation or natural light . Shortly afterwards , the applicant was transferred to an ordinary cell in the same prison where there were CARDINAL beds for the CARDINAL inmates held there . The detainees were obliged to take turns to sleep . The cell was unsanitary and the food putrid .","On DATE the Krtsanisi - Mtatsminda District Court in GPE dismissed the applicant \u2019s request for release , remanding him in custody for DATE . An oral hearing was held . In its reasoning the court stated :","\u201c the collected evidence ... discloses a reasonable suspicion that the accused has committed the incriminated offences ... The evidence has been gathered in conformity with procedural norms ... Due regard should be had to the fact that the applicant is charged with serious crimes ... The case materials substantiate the suspicion that he might interfere with the establishment of the truth ... In view of the prospect of a severe punishment , [ he ] may abscond ... \u201d","In his appeal of CARDINAL DATE , the applicant complained that the imposition of detention on remand had been justified solely by the gravity of the charges and the severity of the sentence . In his view , the prosecution had not put forward any specific evidence or arguments supporting any actual risk of him colluding or absconding . The applicant claimed to have been actively cooperating with the prosecution authority even prior to his arrest by always appearing , whenever summoned for interviews , and by producing all the requested evidence which , in fact , had become the basis of the criminal case file against him . As another guarantee of his reliability , the applicant referred to his \u201c good reputation \u201d , associated with the fact of being a designated trustee of ORG .","The ORG replied that the detention was justified by the gravity of the charges and a reasonable suspicion that the applicant could interfere with the establishment of the truth . However , no concrete arguments or factual circumstances of the particular case were put forward in this regard .","On DATE the ORG dismissed the applicant \u2019s appeal against the remand measure at an oral hearing . Whilst analysing various pieces of evidence , the court had regard mostly to whether or not the charges were well - founded . Concerning the grounds for detention , the court reiterated that , pursuant to ORG CARDINAL and CARDINAL of the ORG , the gravity of the offence justified the imposition of the measure . The appellate hearing was attended by the applicant and his advocates .","On DATE the ORG terminated the preliminary investigation and transferred the case , along with the bill of indictment , to the trial court .","On DATE the GPE ORG in GPE committed the applicant for trial under LAW ORG and confirmed the remand in custody . This decision was rendered in a standard , template form with pre - printed reasoning . The judge simply added , in the blank spaces , a brief statement of facts , the name of the accused , the definition of the impugned offence and the measure of pre - trial restraint . As regards the confirmation of the latter , the printed standard phrase read as follows :","\u201c The measure of pre - trial restraint \u2013 detention DATE has been correctly chosen . \u201d","On DATE the NORP - Saburtalo ORG in GPE started the examination of the case on the merits , and on DATE convicted the applicant of attempted fraud . The court sentenced him to DATE in prison . The charge of falsification of bank documents was dropped as timebarred . The verdict was based on a thorough assessment of the criminal case materials .","On DATE the NORP ORG dismissed the applicant \u2019s appeal and upheld the verdict of CARDINAL DATE with some merely textual amendments .","On DATE ORG dismissed the applicant \u2019s cassation appealcarefully examined by the preliminary and judicial investigations , that no significant breaches of procedural law had occurred and that the lower courts had correctly assessed the facts and the law .","Amongst the complaints made by the applicant before the appellate and cassation courts , the applicant raised the same matters as those now put before ORG LAW ( see paragraph CARDINAL below ) .","After his conviction , the applicant was transferred to Rustavi No . CARDINAL Prison , where the conditions were , according to him , similar to those in GPE No . FAC .","The applicant alleged that the following incident occurred during his detention : In TIME of DATE , he was awoken by the noise of machine gun fire in NORP No . CARDINAL Prison . As it appeared later , the police forces had conducted a special operation against criminal elements there .","NORP The applicant complained about the conditions in Rustavi No . CARDINAL Prison and the incident of DATE to several national and international non - governmental organisations , but never to the prosecution or judicial authorities , according to the case file . Whilst claiming to have written a letter to ORG , informing the latter of the poor conditions of his detention , the applicant did not produce any copy thereof , or indicate its date .","On an unspecified date , the administration of Rustavi No . CARDINAL Prison disciplined the applicant for failing to attend a mandatory inspection of prisoners , and he was placed in a punishment cell for DATE . However , he has never complained about this to any competent national authority , considering that such a course of action would have been ineffective .","On DATE ORG , the authority in charge of the penitentiary system , initiated criminal proceedings against the applicant for using a mobile telephone in NORP No . FAC , in breach of the prison rules .","At an oral hearing on DATE attended by the applicant , ORG allowed the prosecutor \u2019s motion and imposed upon the applicant detention on remand for DATE . The court reasoned that , since the applicant was already detained following his conviction , it was impossible to apply any other measure of pre - trial restraint .","On DATE the NORP ORG , sitting in camera , dismissed the applicant \u2019s appeal and upheld the order of CARDINAL DATE .","The applicant addressed several complaints to the ORG , requesting the termination of the allegedly unlawful proceedings . He also claimed that his procedural rights were breached during the investigation .","According to the case file , the second set of criminal proceedings against the applicant is still pending before a court of first instance .","LAW","\u201c ... the accused can not be held on remand for DATE . \u201d","Code of Criminal Procedure , as it stood at the material time","LAW CARDINAL - \u201c FAC for the refusal to initiate criminal proceedings and for the decision to terminate the initiated proceedings \u201d","\u201c Criminal proceedings shall not be initiated and the initiated proceedings shall be terminated , if :","a ) The action , envisaged by the criminal law , does not exist ...","m ) The inquiry , investigation or prosecution authority has refused to initiate criminal proceedings or decided to terminate the proceeding initiated for the same offence ... \u201d","Article CARDINAL \u00a7 CARDINAL","\u201c Before the end of the investigation , the parties have the right to lodge an application with the court which has imposed a measure of pre - trial restraint ... requesting its annulment or modification ... The parties may exercise this right only when newly discovered circumstances of a substantial character , which were not known to the judge at the time of the imposition of the pre - trial restraint measure , require that the reasonableness of that measure be reviewed . \u201d","Article CARDINAL \u00a7 CARDINAL","\u201c Charges shall be preferred TIME after the arrested person is brought before an inquiry agency . If , within TIME , the court does not decide on the imposition of detention on remand or another measure of restraint , the arrested person shall be released immediately . \u201d","LAW , CARDINAL and CARDINAL - \u201c The basis for and objectives of the imposition of a restraint measure \u201d","\u201c A restraint measure shall be applied to ensure that the accused can not avoid the preliminary investigation and trial , that his or her further criminal activity is prevented , that he or she can not interfere with the establishment of the truth in the given criminal case , or that the court \u2019s verdict is executed .","The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article .","The ground for the imposition of detention on remand can be a substantiated suspicion that the accused may abscond , interfere with the establishment of the truth in the criminal case , or if a serious or grave crime has been committed . \u201d","Apart from detention on remand , LAW envisages the possibility of using such measures of pre - trial restraint as police supervision , home arrest , bail or a personal undertaking not to leave the place of residence .","LAW \u201d","\u201c Detention on remand shall be imposed only with regard to the person who is charged with an indictable offence carrying [ a punishment of ] DATE in prison ... \u201d","The PERSON distinguished CARDINAL periods of detention on remand : detention \u201c pending investigation \u201d , that is whilst the competent prosecution agency investigated the case , and detention \u201c pending trial \u201d , whilst the case was tried in court . The person detained \u201c pending investigation \u201d was referred to as an \u201c accused \u201d . After the case was sent to a court , that person would become a \u201c defendant \u201d ( LAW and DATE ) . Although there was no difference in practice between CARDINAL periods of detention , the calculation of the time - limits was different .","Pursuant to Article CARDINAL \u00a7 \u00a7 CARDINAL , the maximum permitted period of detention \u201c pending investigation \u201d was DATE . It started to run from the moment the person was taken into custody and ended DATE when the prosecutor sent the case , along with the bill of indictment , to the trial court ( Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL ) .","The maximum permitted term of detention \u201c pending trial \u201d , calculated from DATE when the prosecutor forwarded the case to the competent court until the final cassation verdict , was DATE if CARDINAL instances of jurisdiction were involved , and DATE if the case was examined by CARDINAL instances ( Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL ) .","LAW classified crimes , according to the terms of imprisonment which they carried , as minor , serious or grave .","Pursuant to LAW , a premeditated offence carrying DATE imprisonment as a maximum term , or an offence committed by negligence which carried CARDINAL years\u2019 imprisonment as a minimum term , were considered to be serious crimes .","LAW ( b ) stated that fraud , i.e. the misappropriation of another person \u2019s property by deception , committed with regard to objects of great value , was punishable by a prison sentence of DATE .","Article CARDINAL criminalised the fabrication and use of false identity cards , templates of various formal documents , seals , etc . This offence was punishable by a prison sentence of DATE .","The complainants challenged various provisions of LAW ORG , differentiating between the period of detention \u201c pending investigation \u201d and that \u201c pending trial \u201d , for their compatibility with LAW . They alleged that the unnecessary distinction between the QUANTITY types of detention often resulted in situations where the overall term of detention exceeded the constitutional time - limit of DATE .","ORG dismissed the complaint , noting that Article CARDINAL \u00a7 CARDINAL of the LAW solely defined the maximum permitted term of detention \u201c pending investigation \u201d which , pursuant to LAW when the prosecutor sent the case to the competent court for trial :","\u201c ORG observes that LAW of the LAW determines the term only for the detention of a suspect or accused person pending investigation , excluding the detention period of a defendant pending trial ... \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110200","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF KOCHALIDZE v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE - on - Don .","The applicant served in the military . By a judgment of DATE ORG of the Vladikavkaz Garrison declared unlawful the refusal of the commander of military unit CARDINAL to pay the applicant additional DATE combat allowance , obliged the head of the finance department of ORG to allocate funds for such payment and recovered in the applicant \u2019s favour the allowance arrears in the amount of MONEY ( RUB ) . By another judgment of DATE the same court delivered a similar judgment and recovered additionally RUB CARDINAL in favour of the applicant .","On DATE the regional office of ORG returned the writs of execution to the applicant on the ground that the military unit did not have an account there . The writs of execution were also returned by the main office of ORG on DATE . In their letter of the same date ORG suggested that the applicant submit the writs of execution to the bailiff service . It is not clear from the parties\u2019 submissions whether the applicant has done so .","The judgments remain unenforced to date ."],"violated_articles":["6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23312","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2003,"docname":"LAM and OTHERS v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The first applicant is a NORP national , born in DATE and living in GPE , GPE . The second applicant , also a NORP national , is his wife , born in DATE . The third and fourth applicants are their children , born respectively in DATE and DATE . The applicants were represented in the initial stages of the application by the first applicant and then by PERSON , a legal consultant with ORG , GPE , GPE .","The facts of the case may be summarised as follows .","The first applicant was the owner of a NORP restaurant situated in a designated conservation area in the centre of GPE . The applicant and his family lived on the LOC . In DATE the applicants had to abandon their restaurant and their home above it on account of the emission of toxic cellulose paint spray fumes from a warehouse ( unit CARDINAL ) used by a company ( \u201c Namesakes \u201d ) owned by a Mr PERSON . The company was engaged in the manufacture of wooden toys . In addition to the financial loss they suffered as a result of the closure of their business , the applicants\u2019 health ( as well as that of others living in the locality ) was also badly affected by the toxic emissions .","A complaint was first made to ORG ( \u201c the ORG \u201d ) in DATE . Subsequent complaints followed . Although the ORG served a prohibition notice and an abatement notice on the company DATE and DATE , it would appear that no steps were taken to enforce these notices . In DATE the company relocated its activities and the applicants returned to their premises in DATE .","The applicants insist that the paint spraying operation was illegal and that the ORG has tried to conceal the illegality by purporting there to be planning permission for the activity operating out of unit CARDINAL . They maintain , inter alia ,","The applicants commenced litigation against Mr PERSON in DATE . The applicants subsequently sued the ORG , claiming damages for personal injury and damage to property . They contended that the ORG acted beyond its discretion , ultra vires and abused its power by purporting there to be planning permission when , according to the ORG \u2019s own records , no planning permission had ever been granted to the building ( unit CARDINAL ) where the company \u2019s operation took place . The actions against the company and the ORG were consolidated .","On DATE Mr Justice PERSON , on the application of the ORG , ordered that the applicants\u2019 writ against the ORG be struck out as showing no cause of action either under statute or at common law . Mr Justice PERSON considered that the applicants\u2019 primary remedy was the private law remedy for damages and\/or an injunction against the company to stop the nuisance . Mr Justice PERSON also referred to the range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance , including a private law claim against the person creating the nuisance and the laying of a complaint before a ORG .","According to the applicants , Mr Justice PERSON , without justification , diverted the basis of their claim by proceeding on the assumption that planning permission had been given in DATE to the company to use unit CARDINAL for its paint spraying activity .","On DATE ORG , dismissed the ORG appeal against Mr Justice PERSON ruling . According to the applicants , ORG accepted the false statement of the ORG that planning permission was in place without requiring it to substantiate this or to have regard to their evidence disproving the ORG \u2019s assertion .","On DATE ORG refused the applicants leave to appeal .","The first applicant subsequently complained to the ORG that a pottery business which had taken over occupancy of CARDINAL of the units ( unit CARDINAL ) was emitting smells and noises and that it did not benefit from planning permission . He contended that planning permission had never been granted in respect of either unit CARDINAL or unit CARDINAL .","At the meeting held on DATE the ORG \u2019s planning committee ( \u201c the committee \u201d ) decided that there had been no breach of planning conditions and that no enforcement action had to be taken against the owner of the pottery business . According to the first applicant , the committee did not answer his challenge to the very existence of planning permission for the use of units CARDINAL and CARDINAL . The first applicant insists that the committee was deliberately misinformed by its officers about the scope of the original planning application made by Mr PERSON \u2019s company and the true state of the planning record .","The first applicant was present at part of the meeting and made representations to the committee . According to the first applicant , he only received official notification of the committee \u2019s decision on DATE through a ORG official who had agreed to reconsider the local authority \u2019s decision . The ORG official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance .","On DATE , DATE after being notified of the committee \u2019s decision , the first applicant sought leave to apply for judicial review . He maintained , inter alia , that the ORG had failed to take enforcement proceedings against the owner of the pottery business who was operating it without the necessary planning permission .","The first applicant stresses that , in the ensuing judicial review proceedings , the ORG argued that planning permission had been granted to unit CARDINAL . However , this was in contradiction to the stance the ORG had taken in the earlier civil proceedings in which it contended that unit CARDINAL benefited from planning permission . The first applicant reiterates that the true position is that neither unit benefited from planning permission since the records showed that planning permission only covered a storage building at the rear of their home and restaurant . The first applicant draws attention to his view that ORG officials fraudulently deleted the existence of the storage on the planning documentation which was submitted in the judicial review proceedings .","On DATE Mr Justice PERSON refused the first applicant \u2019s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of DATE . The judge considered that the applicant had ample time to produce such evidence between the date when the ORG notified him that it would oppose the application on grounds of delay and the start of the proceedings . The judge dismissed the first applicant \u2019s application for leave to apply for judicial review .","On appeal , Lord Justice PERSON conceded that the scope of Mr PERSON \u2019s application for planning permission and the extent of the permission granted was not entirely clear . However , with reference to Order CARDINAL , rule CARDINAL ) of the Rules of ORG and by analogy with time - limits laid down in planning legislation , Lord Justice PERSON found himself :","\u201c ... driven to the conclusion that here the application was not made promptly , as required by LAW , rule CARDINAL of the Rules of ORG . There seems to be no reason why the applicant should have waited to receive the letter of DATE before seeking to challenge the decision of CARDINALth DATE . I can find no good reason to extend the period laid down by the LAW . \u201d","Lord Justice PERSON further observed that , even if DATE the use made of the LOC was unauthorised , it was now too late for the local authority to institute enforcement action . Lords Justices PERSON and PERSON agreed with Lord Justice PERSON \u2019s reasoning . In a judgment dated CARDINAL DATE ORG dismissed the applicant \u2019s renewed application .","The first applicant points out that Lord Justice PERSON had sat in ORG in the appeal against the ruling of Mr Justice PERSON and failed to draw the attention of his colleagues hearing the appeal on the applicant \u2019s judicial review application to the fact that the ORG had earlier argued that planning only related to unit CARDINAL , whereas in the judicial proceedings it was now claiming that it only covered unit CARDINAL .","Meanwhile , the applicants\u2019 civil claim in ORG against PERSON had been stayed pending the outcome of the proceedings against the ORG . In DATE Mr PERSON applied for an order that directions be given for the future conduct of the applicants\u2019 claim .","On DATE Deputy Master PERSON ordered that the stay be lifted and that the case be transferred from FAC in GPE to GPE ORG . Deputy Master PERSON noted in this connection that the proceedings against the ORG had come to an end and , moreover , that ORG had on DATE declared inadmissible an application lodged by the applicants ( no . ORG ) .","The applicants appealed against the Order . The ORG appeal was heard by PERSON Justice PERSON on DATE . The applicants argued that it was premature to lift the stay in the proceedings since they had lodged a further application ( no . CARDINAL\/CARDINAL ) with the ORG in GPE contesting the ORG \u2019s inadmissibility decision of DATE . Mr Justice PERSON dismissed the applicants\u2019 appeal on this point . Having examined the ORG \u2019s inadmissibility decision , he considered that the applicants\u2019 fresh application had no prospects of success . As to the applicants\u2019 objection to the transfer of the civil action from GPE to GPE , the judge concluded that Deputy Master PERSON has reached his decision in the proper exercise of his discretion on case management issues .","COMPLAINTS","The applicants maintain that the ORG \u2019s inadmissibility decision of DATE ( application no . CARDINAL ) is based on an incorrect statement of the facts and that the legal reasoning is seriously flawed . They contend that the ORG in that decision committed the same error as the domestic courts by assuming that planning permission had been granted to PERSON by the ORG in DATE and at no stage addressed themselves to the true scope of the permission actually given . The applicants submit that the ORG should establish what was actually granted by the ORG under planning application no . CARDINAL . DATE and to reach its decision with reference to the documentation that they have supplied . They maintain that the documentation clearly shows that neither unit CARDINAL nor unit CARDINAL was covered by planning permission and that the only premises addressed in planning application no . CARDINAL was a storage building .","The applicants assert that the facts of their case disclose breaches of ORG , DATE and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL thereto insofar as an illegal industrial activity has been deliberately allowed to operate to the detriment of their health and property and the ORG has knowingly sought to conceal the true nature of the planning record and to purport throughout that planning permission had been given .","Furthermore , the facts relied on show that they had no effective remedy to obtain a determination of their complaints against the ORG and its officers who acted unlawfully and abused their powers by purporting there to be planning permission for the illegal activity . They rely on Articles CARDINAL , CARDINAL and DATE of the Convention .","The applicants submit that they have been discriminated against on account of , among other things , their NORP origin and have been treated differently from those responsible for the emission of the toxic fumes behind their home and restaurant . They rely on LAW in conjunction with ORG and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL .","With reference to the pending civil action against PERSON , the applicants stress that the outcome of that action is closely linked to the question whether PERSON can rely on the grant by the Council of planning permission to carry on his paint spraying operation . In their submission , if the domestic courts were to accept PERSON defence , despite clear evidence to the effect that ORG officials purported there to be planning permission for his activity and unlawfully misled the domestic courts in the litigation against the ORG by manipulating and concealing the true nature of the planning record , there would a breach of their rights under LAW , DATE , DATE and DATE of the Convention . They maintain that the ORG was biased n favour of Mr PERSON .","The applicants contend , among other things , that Mr Justice PERSON in his judgment of DATE did not act independently or impartially since he did not query the documents allegedly showing that the ORG had given Mr PERSON planning permission , and this despite evidence confirming that ORG officials had acknowledged that this was not the case . They invoke Articles CARDINAL and CARDINAL of the Convention .","The applicants further contend under LAW that the judge was wrong to rely on certain statements in the ORG \u2019s inadmissibility decision of DATE , misconstrued the essence of their claim against the ORG and made impermissible use of domestic case law .","The applicants insist that the facts relied on disclose a breach of their rights under LAW since the domestic courts treated their claim as a claim based on damage caused by a legal activity , whereas the true basis of their claim was that they had suffered harm on account of an unlawful activity .","The applicants further allege a violation of LAW , including in conjunction with LAW . They maintain that they have been discriminated against on account of their NORP origin and that by denying them their rights to a fair hearing ORG failed to treat them on an equal footing to other citizens .","The applicants argue that the facts of the case give rise to a breach of LAW .","With reference to LAW the applicants state that the judge purported that the toxic emissions from which they suffered emanated from a legal industrial activity , whereas that activity was illegal and interfered with their property rights .","The first applicant lodged the above application on DATE . In the proceedings before the ORG , the applicant is represented by PERSON , a legal consultant with ORG , GPE , GPE .","The facts of the case may be summarised as follows .","On DATE ORG of ORG refused the applicants\u2019 petition for leave to appeal . TIME of the proceedings recorded that the ORG could apply for its costs and if the application was granted the amount would be certified if no agreement could be reached on it .","The first applicant \u2019s solicitor at the time received a notification dated DATE to attend a taxation hearing regarding the costs incurred by the ORG in respect of the applicants\u2019 petition for leave to appeal to the ORG of the ORG against the decision of ORG in the civil proceedings against the ORG referred to in application no.CARDINAL\/CARDINAL .","A taxation hearing was held on DATE before the Judicial Taxing Officer of ORG . By a decision of DATE , the Judicial Taxing Officer of ORG allowed the ORG \u2019s bill of costs in full ( MONEY ) .","The first applicant protested about the decision , including through his MP , but without success . The first applicant maintained that the ORG had not been invited to make submissions on the above - mentioned petition ( and which was in effect ex parte ) , that his solicitor had informed him that he had never seen any such submissions , that the ORG had never discussed with his solicitor that it would be making an application for costs and what the nature of those costs would be and that the Taxing Officer had abused his powers .","The first applicant sought to challenge this decision by way of judicial review . By letter dated DATE the first applicant was informed by ORG that ORG had no jurisdiction in the matter since its jurisdiction only extended to decisions of inferior courts and tribunals .","COMPLAINTS","The first applicant complains , inter alia , that the Taxing Officer abused his discretion , acted in breach of procedural rules , was biased against him and overlooked the fact that the local authority itself had not complied with ORG own practice directions on the matter of costs . He submits that the Taxing Officer ordered him to pay the ORG \u2019s inflated costs in the absence of any authority to do so and further maintains that there was no justification for seeking the ORG \u2019s comments on his petition before it had been considered by ORG .","The first applicant submits that he was denied a fair hearing in the proceedings before the Taxing Officer , had no effective remedy in respect of the decision reached by him and was the victim of an abuse of rights since the Taxing Officer awarded costs to the defendant ORG to which it was not entitled .","The first applicant relies on Articles CARDINAL , CARDINAL and DATE of the Convention .","The application was lodged on DATE . In the proceedings before ORG , the first applicant is represented by PERSON , a legal consultant with ORG , GPE , GPE .","The first applicant joined ORG ( \u201c FSB \u201d ) in DATE . He paid his membership fee , and thereafter renewed his membership DATE . His decision to become a member was influenced by the ORG \u2019s undertaking in its promotional literature to pay legal and accountancy fees up to GBP CARDINAL,CARDINAL in dealing with an in - depth Inland Revenue investigation .","The Inland Revenue carried out an in - depth investigation of the first applicant in DATE , after he had sought advice from the tax authorities about his tax situation . In DATE the Inland Revenue cleared the first applicant of any suspicion of fraud . The first applicant sought to be indemnified for the accountants\u2019\/consultants\u2019 costs he had incurred in defending himself during the investigation . According to the first applicant , the ORG \u2019s insurer reversed its initial decision not to indemnify him and agreed to reimburse him the costs he had incurred , only to renege later on its promise . The first applicant declined the insurance company \u2019s proposal to submit the full claim to arbitration . Dissatisfied with the outcome of his dealings with the insurer , on DATE the first applicant sued the ORG for breach of contract , relying on the ORG \u2019s unqualified undertaking to cover its ORG costs .","On DATE District Judge PERSON ordered that the first applicant \u2019s claim be struck out as disclosing no cause of action against the ORG . The judge accepted ORG \u2019s defence that the first applicant \u2019s claim lay against the insurance company which underwrote the undertaking and that ORG \u2019s obligation was limited to introducing him to an insurer .","On appeal , His Honour Judge PERSON , on DATE , ordered that the first applicant \u2019s claim be reinstated , being satisfied , firstly , that there was no contractual relationship between the first applicant and the insurance company and , secondly , that the first applicant \u2019s only avenue of redress was to sue the ORG with which he had concluded a contract . Further directions for trial of the case were to be given by a District Judge .","On DATE District Judge PERSON ordered that the question whether the ORG was liable to the first applicant and , if so , the scope of its liability , be determined as a preliminary issue .","On DATE His Honour Judge PERSON ordered that all matters relating to the case were to be tried in the current trial window . The first applicant sought leave to appeal against that order in the hope of having the issue of liability tried separately .","On DATE Mr PERSON proceeded to try the issue of the ORG \u2019s liability to the first applicant . Following a hearing , the judge found on the evidence , and with reference to domestic case - law ( the ORG of Lords\u2019 decision in PERSON v. ORG ) , that the ORG had only agreed to gave the first applicant the benefit of an insurance policy to guard against the expenses incurred as a result of an in - depth tax investigation . The first applicant \u2019s claim to be indemnified therefore lay against the insurer , and not with the ORG . The judge however expressed the view that the ORG could have clarified better in its advertising what the scope of its obligation was in this area . The first applicant appealed .","On DATE , ORG dismissed the first applicant \u2019s appeal following a hearing . Having reviewed the documents relied on by the applicant , Lord Justice Laws considered that the first applicant had not made out a case that he had concluded a contract with the ORG under which the ORG would meet without qualification all of the expenses incurred by the first applicant in the course of an in - depth FAC investigation . In his opinion , the words used by the ORG were not inconsistent with an intention to provide insurance services rather than an unqualified indemnity . Furthermore , the provision to the first applicant of insurance documentation at the time he joined the ORG indicated that his membership entailed his access to insurance services .","Complaints","The first applicant maintains that the domestic courts distorted the facts of the case , reached conclusions in the absence of evidence , erred on matters of law , diverted the basis of his claim , abused their powers and did not act independently and impartially . He refers , among other things , to the improper manner in which Mr PERSON and ORG dealt with the issues before them and to the fact that the ORG took it upon himself to decide who was the correct defendant to the proceedings , even though this issue had already been settled by Judge PERSON . The first applicant relies on LAW to condemn these and other breaches of his right to a fair hearing which he has identified .","Under LAW , the first applicant complains that ORG reached its decision by adducing a document which did not exist , thereby abusing its power and acting without authority by assuming there was such a document .","The first applicant further relies on LAW . He maintains , among other things , that he was discriminated against in his access to justice on account of his status as a litigant in person .","The first applicant finally maintains that the abuse of power on the part of ORG amounts to a breach of LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92087","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2009,"docname":"CASE OF STRAISTEANU AND OTHERS v. MOLDOVA","importance":4,"conclusion":"Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The first CARDINAL applicants , Mr PERSON , Ms GPE GPE and PERSON , are a family of NORP nationals who were born in DATE respectively . The fourth applicant , ORG , is a limited liability company incorporated in GPE . PERCENT of its stock belongs to the first CARDINAL applicants\u2019 family .","The first applicant is a well - known businessman and a former member of ORG , DATE . He was , inter alia , the founder of the first NORP private television company and owned a chain of petrol stations . After ORG won the general election in DATE he retired from politics and had to wind up most of his businesses , including the television station and the petrol business .","In DATE the fourth applicant bought a plot of land measuring QUANTITY from ORG . The land was later sold by the fourth applicant to the first CARDINAL applicants . Subsequently , the first applicant donated a part of the land to the third applicant and an artificial lake was built on the family \u2019s property .","Also in DATE , the fourth applicant concluded a contract of lease with ORG for a period of DATE concerning a natural lake measuring QUANTITY adjacent to the property which it had bought .","The first CARDINAL applicants settled on the above property and developed it with a view to using it for tourism and fishing . According to them , in DATE Government officials started to exercise pressure on the first applicant to induce him to give up the property .","On DATE the first applicant was arrested in PERSON together with his driver . At the police station , he was informed that he and his driver were being accused of carrying out a series of car thefts over DATE in PERSON . It would appear that several criminal complaints concerning car thefts were joined in a single procedure , while others were joined later ( see paragraph CARDINAL below ) .","On DATE ORG issued a detention warrant in the first applicant \u2019s name for DATE . The grounds for detention were that he was suspected of committing a serious offence punishable by DATE imprisonment , that the criminal case was complex , and that he might abscond , hinder the investigation and the finding of the truth . An appeal by the applicant was dismissed and his detention was subsequently extended on the same grounds .","On DATE Judge PERSON from the same court ordered the applicant \u2019s release . The grounds for release were that there were no reasons to believe that the applicant would abscond or hinder in any way the investigation . However , the prosecuting authorities refused to comply with the order and continued to hold the applicant in detention . They applied a second time for an extension of the detention but Judge PERSON refused again on DATE and found that the prosecutor had failed to comply with his previous decision and that therefore the applicant \u2019s detention had been unlawful . The prosecutor refused again to comply with the order of release and ordered his further detention on account of charges of theft from a ORG car , an episode which had not been joined to the main criminal case at that time . On DATE the prosecutor applied to another court , ORG , for a detention warrant . The charges against the first applicant were the same as before and no new reasons for detention were adduced . On DATE that court upheld the application and ordered the continued detention of the applicant . It did not give any reasons for detention except that the prosecutor \u2019s application related to another criminal case .","On DATE ORG issued a press release which stated that the first applicant was a member of a criminal gang which was robbing car drivers in PERSON . The major NORP media reported on the event DATE .","On DATE the episode concerning the theft from a ORG car was joined to the main criminal proceedings against the applicant .","On DATE the applicant appealed against the detention warrant of CARDINAL DATE .","On DATE the criminal case in the applicant \u2019s case was remitted to a court for examination and from that date on the applicant was detained without a detention warrant .","On DATE ORG discontinued the appeal proceedings against the detention warrant of CARDINAL DATE on the ground that the criminal case had been remitted to a court and that therefore no detention warrant was now needed .","His habeas corpus applications were dismissed and he remained in detention until DATE , when a judge ordered his release .","During the first applicant \u2019s detention he was held in the detention facility of FAC ( Comisariatul General de Poli\u0163ie ) . According to him , the cells in which he was detained were overcrowded , dark , damp , dirty and hot . There was no natural light , but instead there was a very weak light bulb which was switched on all the time . The ventilation was not working properly and the inmates were allowed to smoke in the cell . The cell was infested with vermin and rats and the inmates were allowed to take showers only once DATE with cold water . The cells measured CARDINAL or QUANTITY and were occupied by CARDINAL people at all times . Because of the conditions of his detention the applicant contracted influenza .","On DATE ORG organised action in support of the first applicant on its web page , stating , inter alia , the following :","\u201c ORG is concerned that PERSON is being charged on the basis of evidence which has been extracted under torture . ORG has information that a second individual gave evidence after being subjected to torture by investigating officers . However , he reportedly fears that he will be subjected to further ill - treatment if his name is mentioned . The organization is also concerned that PERSON is being detained arbitrarily .","On DATE the central district court of PERSON ordered the release of PERSON on bail , but police officers immediately re - detained him in the court room and took him back to the temporary detention facility despite the court decision . On DATE , after his lawyer appealed against this arbitrary detention , the court declared that his detention was illegal . However , police officers again defied the court order and detained him in the court room . On CARDINAL DATE PERSON was sentenced to CARDINAL days\u2019 imprisonment by the court of LOC in PERSON . DATE period was due to expire on DATE , but the investigating authorities have declared that the investigation is closed and that the case has now been transferred to the court . This effectively prolongs PERSON detention until the court hearing has been held .","Furthermore , ORG is concerned about the conditions in which PERSON is being held at the temporary detention facility on FAC . He is currently being held in a cell with CARDINAL other detainees . The only washing facility is a tap and a basin in the cell , and conditions are damp and badly ventilated . PERSON has contracted influenza since he has been in detention and his family report that he has difficulty breathing . He has not been given access to a doctor and he has only been able to receive the medicine that his daughter passed to him when she saw him in court ....","Please send appeals to arrive as quickly as possible [ to ORG , ORG affairs and\/or to ORG abroad ] ... :","\u00b7 expressing concern for the health of PERSON and asking for assurances that he will be given access to the medical care he requires in conformity with the ORG Standard Minimum Rules for the Treatment of Prisoners ;","\u00b7 expressing concern at allegations that some of the evidence that has been used to convict PERSON has been extracted from another individual under torture ;","\u00b7 urging the authorities not to use any evidence extracted under torture in this case and reminding the authorities that as a party to LAW and other LAW they must ensure that any statement which has been made as result of torture is not used as evidence in criminal proceedings ;","\u00b7 expressing further concern at allegations that the police did not respect court decisions regarding the illegal detention of PERSON and that he was arbitrarily detained by police twice in defiance of court orders ;","\u00b7 urging an investigation into the allegations of arbitrary detention and asking for his release if the allegations are found to be correct . \u201d","On an unspecified date in DATE the President of GPE , PERSON , held a meeting with high ranking officials , among whom was the Prosecutor General , the head of ORG , the head of ORG and the prefect of the county where the applicants\u2019 land was situated . During the meeting he expressed great dissatisfaction with the fact that in spite of his clear indications to numerous ORG bodies , the applicants\u2019 property was still in their possession and had not been returned to the ORG and a monastery . He gave them a deadline of CARDINAL DATE to solve the problem , threatened them with dismissal and left the room , slamming the door .","A video of this event was broadcast by a television channel on DATE in a programme entitled \u2018 The President \u2019s working day\u2019 which reported on the busy schedule of the President . A copy of it was sent to the ORG by the applicant .","According to the applicants , after the first applicant \u2019s arrest their family started to experience harassment from law enforcement bodies such as ORG , the police and ORG , who intimidated and pressured them to give up their property . While in detention the first applicant was approached by police officers , who proposed that he sell the property in exchange for his release . The second applicant was visited on numerous occasions by people claiming to be representatives of the above bodies . They requested her family to leave the property , failing which she would not see her husband again . The third applicant was contacted on numerous occasions by police officers and investigators in charge of her father \u2019s case and ordered to sell the property .","On DATE the second applicant lodged a complaint with ORG complaining about the actions of CARDINAL police officers who had entered her property without any legal basis and ordered her , also in the absence of any legal basis , to take down a billboard at the entrance to the property .","On DATE the second applicant received a letter from ORG , in which she was informed that the matters described by her had proved to be partially true ; however , there were no sufficient reasons to justify the prosecutor office \u2019s intervention .","On DATE the Prosecutor General filed an action with ORG asking for the annulment of the contract of lease for CARDINAL hectares of land concluded between ORG and the fourth applicant in DATE , on the ground that ORG had failed to organise an auction .","On an unspecified date the President of ORG and the President of ORG , PERSON , inquired with the Vice President of ORG , Judge PERSON , about the above case .","In a letter of CARDINAL DATE Judge PERSON wrote to PERSON stating , inter alia , that the case was scheduled to be examined on DATE and that she would be dealing with it . It appears that the hearing of CARDINAL DATE was adjourned .","On DATE the fourth applicant was sent a registered letter informing it that the hearing in the case was scheduled for DATE . It appears that the fourth applicant was no longer at the address to which the summons was sent and therefore did not receive the summons .","On DATE Judge PERSON examined the case in the absence of the fourth applicant and upheld ORG action relying on LAW , in force at the time of the conclusion of the lease contract . It found that ORG had contravened the law by failing to organise a public auction for the lease of the property .","On an unspecified date in DATE the fourth applicant appealed against the above judgment and argued , inter alia , that it had not been summoned and that it did not even know about the prosecutor \u2019s application before DATE . According to the law in force at the time of the conclusion of the lease , there was no obligation to hold an auction . That obligation referred only to sale of land by local authorities , but not to leases . In any event , the action was time - barred .","On DATE a panel of ORG presided over by Judge PERSON dismissed the applicant \u2019s appeal and argued , inter alia , that it had been summoned at the address which appeared in the database of ORG , and that therefore the applicant had been legally summoned . The court also found that the local council had been under an obligation to organise an auction before renting out the land in question . ORG did not refer to the applicants\u2019 objection concerning LAW .","On an unspecified date the fourth applicant lodged an action with ORG claiming compensation for the investments it had made in respect of the leased property . It claimed CARDINAL Moldovan lei ( MDL ) .","On DATE ORG refused to examine the application because the fourth applicant had not paid the court fees of MONEY of the amount sought .","In DATE and DATE the fourth applicant paid a part of the court fees and applied again to the court . It argued that it did not have any more money because all its assets and bank accounts had been frozen by ORG .","On DATE ORG refused again to examine the action on the same grounds . The fourth applicant \u2019s appeal was dismissed .","On DATE the Prosecutor General brought an action with ORG of GPE seeking the annulment of the purchase of the plot of land of QUANTITY by the fourth applicant from ORG in DATE and of all the subsequent contracts by which the property had been transmitted to the first , second and third applicants . ORG argued that ORG had acted ultra vires and had committed numerous irregularities in organising the auction , establishing the price of the property and selling the property .","The applicants opposed all ORG submissions . Their main arguments were that ORG action was time - barred , that they had acquired the property in good faith and that the property could not be expropriated without compensation . At the same time the second and third applicants lodged a counter action in which they submitted that if ORG action was upheld they should be entitled to compensation for the investments they had made in the development of the property in an amount of MONEY ( ORG ) and LAW respectively .","On CARDINAL DATE ORG requested the applicants to pay court fees in the amount of PERCENT of the claimed amounts . The applicants appealed and argued that all their accounts had been seized by ORG , that they were unemployed and that they could not pay the court fees . They asked , on the basis of the law on court fees , to be allowed to pay the fees after the adoption of a judgment in the case .","On DATE a panel of ORG presided by Judge PERSON dismissed the appeal .","NORP On DATE the ORG counter action was dismissed on the ground of their failure to pay court fees . The applicants appealed against this decision . However , their appeal was dismissed on DATE by a panel of ORG presided over by Judge PERSON","On DATE Judge PERSON from ORG upheld the action lodged by ORG , relying on LAW , in force at the time of the conclusion of the lease contract . Judge PERSON found that ORG had breached the rules concerning the conduct of public auctions , namely that it had failed to observe the rules concerning the advertising of the auction , the composition of the auction commission and the drafting of the auction record . The court did not refer to the applicant \u2019s objection concerning LAW and considered all the prosecutor \u2019s arguments well - founded . It ordered that the parties be put in the same position as they had been prior to the conclusion of the contract .","The applicants appealed and argued , inter alia , that they had been punished for errors of the local authorities which were not imputable to them , that the court was not independent and impartial , that the action was time - barred and that the actions against them had been orchestrated by President PERSON , submitting a copy of the video in which the President was shown instructing ORG officials to take away their property .","On DATE ORG dismissed the ORG appeal . It held that according to LAW claims filed in the ORG \u2019s interest were exempt from the requirement to observe time - limits .","On DATE a bailiff came to the applicants\u2019 property , accompanied by the mayor of GPE , in order to enforce CARDINAL of the civil judgments concerning the applicants\u2019 property . A quarrel took place between the first applicant and the mayor and DATE the latter lodged a complaint with ORG , complaining that the first applicant had made death threats against him . In particular , he submitted that during the quarrel the first applicant had said that he would feed him ( the mayor ) to the fishes .","On DATE the applicant was arrested and placed in detention . On DATE ORG issued an order for him to be detained for DATE . That was extended on numerous occasions and the first applicant \u2019s appeals and habeas corpus requests rejected .","He was detained in the detention centre of ORG until DATE and then in PERSON no . CARDINAL prison . According to the applicant , the conditions of detention in both detention facilities amounted to inhuman and degrading treatment .","The applicant \u2019s detention under the new charges continued until DATE , when he was placed under house arrest .","On an unspecified date in DATE the first applicant initiated civil proceedings against the Government claiming compensation for poor conditions of detention in DATE and in DATE and for detention contrary to LAW . He relied , inter alia , on the ORG \u2019s findings in respect of conditions of detention in PERSON v. GPE ( no . CARDINAL\/CARDINAL , CARDINAL DATE ) , ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) , and PERSON GPE ( no . CARDINAL , DATE ) in which the applicants had been detained in the same detention facilities .","DATE . On DATE ORG dismissed the applicant \u2019s action , upholding the ORG \u2019s position and finding that the conditions of detention on both occasions were acceptable . The court accepted several of the applicant \u2019s submissions , such as that his cell window did not have glass for DATE , that a person with scabies was placed in his cell on CARDINAL occasion , that there was no linen or mattresses in the cell , and that there was no sewerage in CARDINAL of the detention facilities . Nevertheless , it considered that these shortcomings were not sufficient for the application to be upheld , because the applicant did not have to share a bed with the ill prisoner , the latter had been receiving treatment for DATE and at the time of his placement in the cell he was no longer contagious . Moreover , the window cell was repaired after DATE and in any event the temperatures at DATE were usually moderate . In addition , prisoners were allowed to bring their own mattresses and linen . In so far as the complaint under LAW was concerned , the court found that there were no civil remedies against the alleged breaches under NORP law . This judgment was confirmed by ORG on DATE and by ORG on DATE .","On DATE the applicant lodged another action with ORG , again claiming compensation for his allegedly unlawful detention DATE . It appears that his action has not yet been determined .","The relevant findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG , unofficial translation ) read as follows :","B. Establishments visited","... - EDP of ORG ( Follow - up visit )","... b. remand centres ( EDPs )","In its report on the DATE visit ( paragraph CARDINAL ) , the ORG was forced to conclude that material conditions of detention in the remand centres ( EDPs ) visited amounted in many respects to inhuman and degrading treatment and , in addition , constituted a significant risk to the health of persons detained . While recognising that it was not possible to transform the current situation in these establishments TIME , the ORG recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity .","NORP Unfortunately , during the DATE visit , the delegation found barely any traces of such palliative measures , in fact quite the opposite . ...","One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the NORP authorities have paid no attention to the ORG recommendations . In fact , this state of affairs strongly suggests that , setting aside economic considerations , the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty .","Turning to the other EDPs visited across GPE , with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions . A detailed description is superfluous , since it has all been highlighted already in DATE of the report on the DATE visit .","In PERSON , these conditions were exacerbated by serious overcrowding . At the time of the visit , there were CARDINAL prisoners for CARDINAL places , requiring QUANTITY persons to cram into a cell measuring QUANTITY into cells of CARDINAL m\u00b2 .","The delegation also received numerous complaints about the quantity of food in the EDPs visited . This normally comprised tea without sugar and a slice of bread in the morning , cereal porridge at lunch time and hot water in TIME . In some establishments , food was served just once a day and was confined to a piece of bread and soup . ...","... Concerning the issue of access to toilets in due time , the ORG wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of CARDINAL or several other persons , in a confined space such as the ORG cells which also serve as their living space , is in itself degrading , not only for the individual concerned but also for those forced to witness what is happening . Consequently , the ORG recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should DATE if they so request \u2013 be taken out of their cell without delay during DATE in order to go to the toilet .","The ORG also recommends that steps be taken to :","- reduce the overcrowding in PERSON as rapidly as possible and to comply with the official occupancy level ;","- supply persons in custody with clean mattresses and clean blankets ;","- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter .","In the light of certain observations made , particularly in the ORG of ORG , the ORG also reiterates its recommendation concerning strict compliance , in all circumstances , with the rules governing separation of adults and minors . \u201d","Conditions of detention .","a. Institutions of ORG","Since DATE , when it first visited GPE , the ORG has serious concern for the conditions of detention in the institutions of ORG .","The ORG notes that CARDINAL out of CARDINAL EDPs have been subjected to \u201c cosmetic \u201d repair and that CARDINAL have been equipped with places for DATE walks . Nevertheless , the DATE visit did not allow lifting the concern of ORG . In fact , most recommendations made have not been implemented .","Whether CARDINAL refers to the police stations or EDPs visited , the material conditions are invariably subject to the same criticism as in the past . Detention cells had no access to daylight or a very limited such access ; artificial light \u2013 with rare exceptions \u2013 was mediocre . Nowhere did the persons obliged to pass TIME in detention receive mattresses and blankets , even those detained for prolonged periods . Those who had such items could only have obtained them from their relatives ...","As for food ... in the EDPs the arrangements made were the same as those criticised in DATE ( see paragraph CARDINAL of the report on that visit ) : generally CARDINAL modest distributions of food per day including tea and a slice of bread in the morning , a bowl of cereals at TIME and tea or warm water in TIME . Sometimes there was CARDINAL distribution of food per day . Fortunately , the rules for receiving parcels have been relaxed , which allowed detainees with relatives outside to slightly improve these meagre DATE portions .","In sum , the material conditions remain problematic in the police stations ; they remain disastrous in EDPs , continuing in many aspects to amount , for the detainees , to inhuman and degrading treatment . \u201d","II . Institutions of ORG","In so far as the conditions of detention in the police establishments are concerned , it appears that this is the field in which the least progress has been achieved . It is not necessary to enumerate here in detail all the shortcomings observed by the delegation , which are more or less the same as those observed during past visits ( and of which ORG is perfectly aware ) . ... Numerous persons are still detained overnight in police establishments , in cells which should not be used to detain persons for TIME . It is high time to remedy these problems , in particular by placing accused persons under the supervision of institutions of ORG and building new prisons corresponding to ORG standards and to the norms laid down by the NORP legislation . \u201d","Article CARDINAL of the LAW of GPE , in so far as relevant , states as follows :","\u201c ( CARDINAL ) Detention takes place on the basis of a warrant issued by a judge for a maximum period of DATE . The lawfulness of the warrant may be challenged , in accordance with the law , before a hierarchically superior court . The period of detention may be extended only by a court , in accordance with the law , to a maximum of DATE . \u201d","The relevant part of LAW reads as follows :","( CARDINAL ) The application for a detention warrant ... shall be examined without delay by the investigating judge ... at the place of the conduct of the criminal investigation , at the place of arrest or at the place of residence of the detainee \u2019s representative .","( CARDINAL ) A repeated application for a detention warrant ... in respect of the same person and in the same proceedings , after the dismissal of a previous application , shall be possible only if new reasons for detention have appeared .","The relevant provisions of LAW , in force at the relevant time , provide :","The general limitation period for protection through a court action of the rights of a [ natural ] person is DATE ; it is DATE for lawsuits between ORG organisations , collective farms and any other social organisations .","The competent court ... shall apply the limitation period whether or not the parties request such application .","Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim .","If the competent court ... finds that the action has not commenced within the limitation period for well - founded reasons , the right in question shall be protected .","The limitation period does not apply :","...","( CARDINAL ) to claims by ORG organisations regarding restitution of ORG property found in the unlawful possession of ... other organisations ... and of citizens ; \u201d .","The relevant provisions of the new Civil Code , in force after DATE , read as follows :","\u201c ( CARDINAL ) The civil law does not have a retroactive character . It can not modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished . The new law can not alter or abolish the already created effects of a legal situation which has extinguished or in the process of execution . \u201d","In a judgment of DATE ( case nr . CARDINAL ) ORG dismissed the plaintiff \u2019s contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that , therefore , the provisions of the old Civil Code were applicable ."],"violated_articles":["13","3","5","6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57775","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1992,"docname":"CASE OF EDWARDS v. THE UNITED KINGDOM","importance":3,"conclusion":"No violation of Art. 6;Not necessary to examine Art. 13","judges":"C. Russo;John Freeland","text":["On DATE the applicant was convicted at ORG , inter alia , of CARDINAL count of robbery and CARDINAL counts of burglary . The jury \u2019s decision was by a majority verdict of CARDINAL . He received a sentence of imprisonment of DATE for the robbery , and CARDINAL sentences of DATE each for the burglary offences . All CARDINAL sentences were to be served concurrently .","The evidence against the applicant consisted of detailed oral admissions that he had allegedly made to the police concerning his involvement in the CARDINAL offences . According to the police he was questioned on CARDINAL separate occasions and contemporaneous notes were taken of his statements . However , he had declined to sign them .","His defence during the trial was to maintain that these statements had been concocted by the police . He protested his innocence pointing out that he had not denied his numerous misdeeds in the past . The only witnesses called by the defence during the trial were the CARDINAL police officers who had interviewed him .","Leave to appeal against the sentence but not the conviction was granted by a single judge of ORG ) on DATE . On CARDINAL DATE the substantive appeal against sentence was dismissed by the full court .","The victim of the robbery ( Miss Sizer ) which took place on DATE was a lady of DATE of age who was awakened from her sleep to find a man standing over her . Before having her hands tied behind her back and being blindfolded she was able to take a quick glance at him . She remained tied up until she was freed TIME . In a statement to the police she gave a description of the man which corresponded with the applicant and stated that she thought she would recognise him again . She was not called as a witness during the trial but her written statement was read to the jury .","The CARDINAL counts of burglary related to separate incidents which occurred on DATE and DATE also involving the home of an elderly woman . On the latter occasion the police arrested the applicant \u2019s co - defendant in the vicinity . It was his statement to the police which led to the applicant \u2019s arrest .","On DATE , the applicant petitioned the Secretary of ORG for ORG with complaints against police officers who had investigated his case and given evidence at his trial . An independent police investigation was ordered in the course of which certain facts came to the applicant \u2019s attention ( see paragraphs CARDINAL below ) . On DATE , the applicant applied for leave to appeal against conviction out of time . The police report ( the PERSON report ) , dated DATE , was delivered to ORG which directed it to ORG . The report was requested by the applicant \u2019s advisers but its disclosure was refused on the grounds of public interest immunity .","In DATE , ORG decided that there was insufficient evidence to support criminal charges against the police officers , but recommended that disciplinary charges be brought against QUANTITY police officers . At the disciplinary hearing , on DATE , the tribunal decided that there was no case to answer and dismissed the charges .","On DATE , the Secretary of ORG for ORG referred the applicant \u2019s case to ORG ) under section CARDINAL ( CARDINAL)(a ) of LAW DATE ( \" the CARDINAL Act \" ; see paragraphs CARDINAL and CARDINAL below ) . The reference was heard on DATE and judgment delivered on DATE .","The applicant submitted to ORG that the verdict should be set aside as unsafe and unsatisfactory because of certain shortcomings in the prosecution case , in particular , that certain information had been withheld by the police . At the trial one of the police witnesses had stated under cross - examination that no fingerprints were found at the scene of the crime . In fact CARDINAL fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house . The applicant had not been informed of this by the prosecution before his trial .","It was argued by the applicant that the police officer had told lies and that his veracity as regards the admission statements was thus called into question .","ORG rejected this submission as follows :","\" We do not accept that interpretation of Detective PERSON evidence . We think quite plainly what he was indicating there and intended to indicate was that no fingerprints relating to either of the CARDINAL alleged burglars were discovered at the scene : neither the fingerprint of Rose nor the fingerprint of PERSON , the present appellant .","We do not think , had the matter been carried further , it would have been demonstrated that PERSON was a person who to that extent could not be believed on his own . \"","A further shortcoming complained of by the applicant related to the fact that the police had shown CARDINAL volumes of photographs of possible burglars ( including a photograph of the applicant ) to the elderly victim of the robbery who said that she had caught a fleeting glimpse of the burglar . Her statement , read to the jury , said that she thought she would be able to recognise her assailant . Yet she did not pick out the applicant from the photographs .","This fact was not , however , mentioned by CARDINAL of the police witnesses who had made a written statement which was read out to the jury and had not been indicated to the applicant before or during his trial . Counsel for the applicant submitted to ORG that this omission cast such doubt on the evidence of the prosecution that it might have led the jury to believe that the confession statements had indeed been \" manufactured \" by the police as the applicant alleged .","ORG also rejected this argument :","\" The fact that Miss PERSON had a fleeting glimpse of her assailant , and the fact that such identification as she did make was largely directed to other matters of identification rather than his features , leads us to believe that the jury would not have been influenced to act other than they did if they had the full story of the photographs and of Police Constable PERSON \u2019s activities with regard to that . \"","ORG examined other impugned shortcomings which it did not consider to cast any doubt on the verdict . It was of the opinion that , even if these matters had been investigated , it would have made no difference to the outcome .","The court concluded as follows :","\" It is clear that there was some slipshod police work in the present case , no doubt because they took the view that here was a man who had admitted these crimes fully , and consequently there was very little need for them to indulge in a further verification of whether what he said was true . Although this is a matter which perhaps casts the police in a somewhat lazy or idle light , we do not think in the circumstances there was anything unsafe or unsatisfactory in the end about these convictions . Consequently , treating this matter as we have to according to LAW , we think this appeal fails and must be dismissed . \"","Counsel for the applicant did not request ORG to exercise its discretionary power to rehear evidence under LAW ( see paragraph CARDINAL below ) with a view , for example , to cross - examining the police officers who gave evidence at the applicant \u2019s trial . He considered that there was little prospect of such a request being granted . Nor did he request the court to order the production of the PERSON report ( see paragraph CARDINAL above ) .","The applicant took advice concerning the possibility of appealing to ORG but was informed , in an opinion of counsel dated DATE , that there were no grounds on which an appeal could successfully be pursued before ORG .","He petitioned the Secretary of ORG for ORG on DATE without success . He is currently serving a sentence of CARDINAL years\u2019 imprisonment following his conviction on DATE at ORG on CARDINAL counts of burglary .","Under the Attorney General \u2019s Guidelines issued in DATE , the prosecution is obliged ( subject to specified discretionary exceptions ) to disclose to the defence \" unused material \" , which includes all witness statements not enclosed in the bundle of statements served on the defence at the stage of committal of the case by ORG to ORG .","The prosecution is also under a duty to inform the defence of any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . Consequently where evidence of a prosecution witness is given before the court stating that the witness would recognise the accused again , and the prosecution knows that when shown a photograph of the accused the witness in fact failed to identify him , it is required to inform the defence of that fact .","For the purpose , among others , of ensuring compliance with this duty , ORG has stated that all the statements which have been taken by the police should be put before counsel for the ORG , and that it should not be left to the police to decide which statements he is to receive ( NORP v. ORG , DATE ) .","A jury \u2019s verdict may be either unanimous or by a majority . It must be unanimous unless the trial judge , in accordance with section CARDINAL of the Juries Act DATE , has directed , after TIME of unsuccessful jury deliberations , that a majority verdict will be accepted . A majority verdict will be effective if , where there are not CARDINAL jurors , CARDINAL of them agree on the verdict , or , where there are QUANTITY jurors , QUANTITY of them agree . If the jury do not agree on either a unanimous or majority verdict , they may , at the discretion of the trial judge , be discharged , but such a discharge does not amount to acquittal and the accused may be tried again by a second jury . In the event of a second jury disagreeing , it is common practice for the prosecution formally to offer no evidence .","Section CARDINAL(CARDINAL)(a ) of the DATE LAW as follows :","\" Where a person has been convicted on indictment , or been tried on indictment ... the Secretary of ORG may , if he thinks fit , at any time either :","( a ) refer the whole case to ORG and the case shall then be treated for all purposes as an appeal to the ORG by that person ;","... \"","The scope of ORG powers is set out in section CARDINAL of the DATE Act which provides :","\" ( CARDINAL ) Except as provided by this LAW , the Court of Appeal shall allow an appeal against conviction if they think :","( a ) that the conviction should be set aside on the unsafe or unsatisfactory ;","( b ) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law ; or","( c ) that there was a material irregularity in the course of the trial ,","and in any other case shall dismiss the appeal .","Provided that the ORG may , notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant , dismiss the appeal if they consider that no miscarriage of justice has actually occurred .","( CARDINAL ) In the case of an appeal against conviction the ORG shall , if they allow the appeal , quash the conviction .","( CARDINAL ) An order of ORG quashing a conviction shall , except when under section CARDINAL below the appellant is ordered to be retried , operate as a direction to the court of trial to enter , instead of the record of conviction , a judgment and verdict of acquittal . \"","Section CARDINAL of LAW enabled ORG to order a retrial only where the conviction was quashed by reason of evidence received or available to be received under LAW . In relation to appeals subsequent to DATE , section CARDINAL has been amended to confer on ORG a broader basis to order a retrial .","LAW the DATE LAW , inter alia , as follows :","\" ( CARDINAL ) For purposes of this part of the LAW , ORG may , if they think it necessary or expedient in the interests of justice -","( a ) order the production of any document , exhibit or other thing connected with the proceedings , the production of which appears to them necessary for the determination of the case ;","( b ) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the ORG , whether or not he was called in those proceedings ; and","( c ) ...","( CARDINAL ) Without prejudice to subsection ( CARDINAL ) above , where evidence is tendered to ORG thereunder the ORG shall , unless they are satisfied that the evidence , if received , would not afford ground for allowing the appeal , exercise their power of receiving it if -","( a ) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal ; and","( b ) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it .","( CARDINAL ) ... \"","It falls to the court to determine , if necessary , claims by the ORG that documents should not be disclosed on the grounds of public interest immunity ( see , inter alia , NORP v. PERSON , judgment of ORG ) of DATE ) .","The approach to be adopted by ORG when considering under section CARDINAL ) of the DATE Act whether a trial verdict was unsafe or unsatisfactory was discussed by ORG in the context of a section CARDINAL reference in GPE v. Director of Public Prosecutions [ DATE ] Appeal Cases CARDINAL . PERSON , with whom the other members of ORG agreed , stated :","\" I do not suggest that in determining whether a verdict is unsafe or unsatisfactory , it is a wrong approach for the court to pose the question - \u2018 Might this new evidence have led to the jury returning a verdict of not guilty?\u2019 If the court thinks that it would or might , the court will no doubt conclude that the verdict was unsafe or unsatisfactory ... It would , in my opinion , be wrong for the court to say : \u2018 In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused . We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours , we quash the conviction\u2019 for ORG has , in terms , said that the court should only quash a conviction if , there being no error of law or material irregularity at the trial , \u2018 they think\u2019 the verdict was unsafe or unsatisfactory . They have to decide and ORG has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come . If the court has no reasonable doubt about the verdict , it follows that the court does not think that the jury could have CARDINAL ; and , conversely , if the court says that a jury might in the light of the new evidence have a reasonable doubt , that means that the court has a reasonable doubt . \"","ORG has held that the powers under LAW of the DATE Act extend to rehearing evidence which has already been given at the trial , if this is necessary or expedient in the interests of justice . The court has also held that it has a general power under LAW ( CARDINAL ) to admit further evidence , not restricted to the circumstances set out in LAW ( CARDINAL ) ( NORP v. PERSON and others [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . However it is unusual for ORG to exercise that power since it is reluctant to substitute its own findings of fact for those of the jury which has already seen and heard the relevant witness . In practice , the exercise of the power to receive evidence is thus mainly confined to fresh evidence which has arisen since the trial and which the jury did not have the benefit of hearing . No statistics are available on the frequency with which the power to rehear evidence is exercised .","In DATE the Secretary of ORG for ORG announced the appointment of ORG which is expected to consider , inter alia , the general application of LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57607","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1972,"docname":"CASES OF DE WILDE, OOMS AND VERSYP (\"VAGRANCY\") v. BELGIUM (ARTICLE 50)","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient","judges":"","text":["The ORG is called upon to rule only on the question of the application of LAW ) in the present cases . Thus , as regards the facts the ORG will confine itself here to giving a brief outline and for the rest it refers to paragraphs CARDINAL of its judgment of DATE .","That judgment concerned the detention of ORG , Ooms and PERSON ordered by decisions of the magistrates at GPE , GPE and GPE on DATE , CARDINAL DATE and CARDINAL DATE respectively under LAW ( in the cases of ORG and PERSON ) and DATE ( in the case of Ooms ) of the LAW of DATE for the suppression of vagrancy and begging . PERSON regained his freedom after DATE ( CARDINAL of which he spent serving a prison sentence ) , Ooms after DATE and PERSON after DATE , DATE .","In the course of the proceedings before the ORG , the applicants each claimed MONEY ( BF ) damages per day of detention . Their counsel , Me . Magn\u00e9e , now relies on the judgment of DATE to claim , on behalf of each of them , damages of CARDINAL BF per day of \" unlawful detention \" .","With that object , Me . Magn\u00e9e began by addressing to the NORP Minister of Justice , on CARDINAL and DATE , CARDINAL letters of which the first related to PERSON and the second to Ooms . On DATE , the Minister replied that the Government could only apply the law as it stood while waiting for the PERSON on \" social misfits \" - which it had introduced even before the judgment of DATE - to be passed . Considering this reply to amount to a refusal contrary to the principle of the supremacy of international treaty law over national law , Me . Magn\u00e9e informed the Minister , on DATE that he proposed to bring the matter before the \" competent authorities \" and to notify the Commission .","Counsel for the applicants did in fact write first to ORG to inform them of the Minister of ORG \u2019s refusal which implied , he alleged , a violation of the ORG \u2019s judgment ; he later wrote , on DATE , to the ORG referring to Articles CARDINAL ( CARDINAL ) , DATE and DATE ( article DATE , article CARDINAL , article CARDINAL ) of the Convention and requested the ORG to bring before the ORG the claim made by each of his CARDINAL clients .","On DATE , he addressed to the Minister of ORG a letter concerning PERSON which was worded in the same terms as the letters of CARDINAL and DATE . The Minister acknowledged its receipt on CARDINAL DATE , noting that along with the other CARDINAL it had been communicated by Me . ORG .","In its memorial of DATE , the Government pointed out to the ORG that on DATE it had tabled in ORG a Bill on \" social misfits \" intended to replace LAW . The Government added that , desiring to comply with the judgment of DATE without awaiting the passage of this PERSON , it had voted by LAW of DATE amending LAW and containing CARDINAL sections . The first , which inserted a new section , numbered CARDINAL bis , in LAW , provides that decisions taken under LAW and DATE are henceforth made subject to the remedies available under LAW , including appeal . LAW was a transitional provision : it specified that vagrants or beggars held in detention on the entry into force of LAW ( DATE ) in execution of a decision taken under LAW of LAW , could exercise for DATE the remedy provided for at LAW bis ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-113901","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2012,"docname":"PIKIELNY AND OTHERS v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["The application was lodged by CARDINAL applicants \u2013 PERSON ( \u201c the first applicant \u201d ) , PERSON ( \u201c the second applicant \u201d ) , PERSON ( \u201c the third applicant \u201d ) , PERSON ( \u201c the fourth applicant \u201d ) and PERSON ( \u201c the fifth applicant \u201d ) . The first applicant is a NORP national , the second , third and fifth applicant are NORP nationals . The fourth applicant has dual NORP and NORP nationality . They were born in DATE , DATE , DATE , DATE and DATE respectively . The first applicant lived in GPE , the second in PERSON , the third in FAC , the fourth in GPE , and the fifth in GPE GPE .","The first applicant died on DATE . On DATE the applicant \u2019s wife , PERSON , expressed the wish to pursue the application in his stead .","The applicants were represented before the ORG by Ms A. ORG and Mr PERSON , lawyers practising in GPE , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , succeeded by PERSON , of ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicants\u2019 ancestors owned a textile manufacturing factory in FAC , GPE , consisting of CARDINAL various buildings , including wool weaving mills , a plot of land of QUANTITY m. and a garden . The factory , which was originally intended for the manufacture of silk scarves , was founded by the first , the second and the fourth applicants\u2019 grandfather , PERSON , in DATE .","Shortly before the Second World War the factory operated under the name \u201c Factory of ORG and PERSON i. ORG \u201d ( \u201c PERSON i PERSON I T. Pikielni Sp\u00f3\u0142ka Akcyjna \u201d ) and , following various acquisitions and transactions , was eventually co - owned by PERSON and his sons \u2013 PERSON ( the first and second applicants\u2019 father ) and PERSON ( the fourth applicant \u2019s father ) .","Following the outbreak of the Second World War , the factory owners and the applicants\u2019 other relatives were taken by the NORP to concentration camps or ghettos . The factory was taken over by NORP and throughout the war operated under the NORP - appointed trustee ( \u201c Treuhender \u201d ) .","PERSON was killed during a bombing of FAC in DATE . PERSON perished in the GPE ghetto in DATE . PERSON and the first and second applicants survived the concentration camps and returned to ORG at the end of the war . They found the factory functioning largely as it had been during the NORP occupation . It was then taken over and managed by the communist authorities . In recognition of his former role as owner and chief executive of the factory PERSON was designated by ORG as manager of operations . In fact , he actively managed the business until he and the first and second applicants left GPE for GPE in DATE .","On DATE the factory was nationalised by virtue of the Minister of Light Industry \u2019s ( Minister PERSON ) decision no . CARDINAL ( \u201c the DATE decision \u201d ) , issued pursuant to section CARDINAL(CARDINAL ) of LAW DATE on the nationalisation of basic branches of the ORG economy ( LOC o przej\u0119ciu na w\u0142asno\u015b\u0107 GPE podstawowych ga\u0142\u0119zi gospodarki narodowej ) ( \u201c the MONEY \u201d ) . The decision was published in the ORG \u2019s ORG ) no . CARDINAL of DATE .","NORP The former owners were neither notified about the take - over of their property nor were they compensated for it . Throughout DATE of the communist regime the factory remained operating , having been transferred by ORG from CARDINAL ORG - owned enterprise to another . Finally , in DATE it was assigned to \u201c FAC , a ORG - owned ORG ( PERSON Lodex \u201d ) . However , the relevant entry recording the owner in the ORG had not been amended and the company \u201c M. i ORG \u201d remained listed as the factory \u2019s owner until DATE .","At around the same time the applicants started to make first attempts to have the land and factory restored to them or , alternatively , to obtain compensation for its nationalisation .","On DATE winding - up proceedings were instituted in respect of the \u201c Lodex \u201d FAC . In the course of the proceedings , \u201c LOC \u201d lodged an application with FAC for acquisition of the property in question by prescription . The claim was dismissed on DATE .","Subsequently , the plant \u2019s representatives asked ORG to open a new book ( ksi\u0119ga wieczysta ) for the property and to make an entry recording ORG as its owner .","On DATE the ORG ordered that the old books and records kept for the property and listing the applicants\u2019 family as the owners be closed , that a new book no . CARDINAL be opened and that the ORG be entered in ORG as the owner of the property . The applicants appealed against that order .","On DATE ORG dismissed their appeal ( rewizja ) . Subsequently , on DATE , the applicants asked the Minister of ORG to lodge an extraordinary appeal ( rewizja nadzwyczajna ) against the contested order but their request was to no avail .","In the meantime , on DATE , the Governor of FAC ( Wojewoda ) had given a decision declaring that the \u201c ORG had acquired perpetual use ( u\u017cytkowanie wieczyste ) of the land in question \u201c with ownership of the buildings and machines having been acquired by \u2018 Lodex\u2019 through payment \u201d . The applicants sought to have the administrative proceedings reopened . On DATE the Governor of ORG refused their application .","On DATE , following the applicants\u2019 inquiry into the possibility of obtaining pecuniary compensation for the nationalised property , the Minister for Economy and Labour ( Minister PERSON i Pracy ) informed them by letter that until that time no laws regulating this matter had been enacted . Admittedly , LAW in sections QUANTITY stated that an appropriate body would be set up to deal with such compensation claims and that the relevant rules governing the principles for payment of compensation would be established . However , the ORG had not yet fulfilled that statutory obligation . Accordingly , there was no body that could be authorised to act in respect of compensation or related matters . The Minister added that it should be assumed that this lacuna would be removed once ORG had adopted a law on restitution and compensation . Currently , the Minister for ORG was working on the relevant bill and it was likely that that bill would soon become a formal proposal by the Government .","Since then , the applicants have not made any further attempts to claim compensation for the nationalised factory before the domestic authorities .","Following the establishment of the communist regime in GPE nearly all branches of industry , as well as banking , insurance , transport and commercial companies were taken over by the ORG under LAW which , in its section CARDINAL , stated the purposes of nationalisation as follows :","\u201c NORP In order to ensure the planned rebuilding of the state economy , the economic sovereignty of the ORG and to foster the general well - being , the ORG shall take over ownership of enterprises on the conditions laid down in this law . \u201d","Pursuant to section CARDINAL(CARDINAL ) , only those industrial , mining , transport , banking , insurance and commercial enterprises that belonged to ORG and the former GPE of Gda\u0144sk , their citizens ( except for those of NORP or other nationality who had been persecuted by the NORP ) , NORP and Gda\u0144sk legal persons ( except for those set up under public law ) , companies controlled by NORP or ORG citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the ORG without payment of compensation .","Section CARDINAL(CARDINAL ) of LAW ( as amended ) states that the owners of the remaining enterprises were to be compensated for their nationalised property . That provision reads , in so far as relevant , as follows :","\u201c CARDINAL . The ORG shall compensate [ the owners ] for taking over ownership of the following :","A. ORG and industrial enterprises in the following sectors of State economy :","CARDINAL ) NORP mines and mining leases subject to mining law ;","CARDINAL ) NORP oil and gas industry , including mines , refineries , gasoline production and other processing plants , gas pipes and synthetic fuel industry ;","CARDINAL ) NORP companies that generate , process , transmit or distribute electricity ... ;","CARDINAL ) NORP companies that generate , process , transmit or distribute gas ... ;","CARDINAL ) NORP water supply companies serving more than one municipality ... ;","CARDINAL ) NORP steelworks and non - ferrous metals smelting plants ;","CARDINAL ) armaments , aviation and explosives industry ;","CARDINAL) coking plants ;","CARDINAL ) NORP sugar factories and refineries ;","CARDINAL ) industrial distilleries , spirit refineries and vodka production plants ;","CARDINAL ) NORP breweries with an annual output exceeding CARDINAL hectolitres ;","CARDINAL ) NORP yeast production plants ;","CARDINAL ) grain plants with a DATE output QUANTITY of grain ... ;","CARDINAL ) NORP oil plants with an annual output exceeding QUANTITY and all refineries of edible fats ;","CARDINAL ) NORP cold stores ;","CARDINAL ) NORP large and medium textile industry ;","CARDINAL ) NORP printing industry and printing houses ;","...","B. Industrial enterprises not listed in subsection \u201c A \u201d if they are capable of employing in the production CARDINAL persons on CARDINAL shift .","...","C.","CARDINAL ) Transport enterprises ( standard gauge and narrow - gauge railways , electric railways and aviation transport enterprises ) ;","CARDINAL ) NORP communication enterprises ( telephone , telegraph and radio enterprises ) .","Section CARDINAL lays down general principles for compensation to be paid for nationalised property . It states , in so far as relevant , as follows :","\u201c CARDINAL . The owner of an enterprise whose ownership has been taken over by the ORG ( section CARDINAL ) shall receive compensation from ORG within DATE from the date on which a notice of final determination of the amount of compensation due has been served on him .","Such compensation shall in principle be paid in securities ; however , in exceptional and economically justified cases it may also be paid in cash or other values .","The amount of compensation due shall be determined by special commissions . The persons concerned shall have the right to participate in proceedings before those commissions . If need be and in any case if so requested by the persons concerned , the commission shall appoint appropriate experts .","NORP The composition of the commissions , the rules for the appointment of their members , the quorum , the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by ORG .","The following factors shall be taken into account in determining compensation :","a ) general deterioration of the value of ORG property ;","b ) net value of the corporate property on the date of nationalisation ;","c ) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war , occupation in the period from DATE to the date of nationalisation ;","d ) value of expenditures made after DATE ;","e ) special circumstances affecting the value of the enterprise ( concession terms , licenses etc . ) .","A ORG \u2019s ordinance shall determine detailed rules governing the calculation of compensation , assessment of the circumstances listed in subsection CARDINAL and means of payment of compensation ( subsection CARDINAL ) and depreciation of securities . \u201d","Pursuant to section CARDINAL , the ORG and the relevant Ministers shall be entrusted with the implementation of LAW . However , since DATE , the date of entry into force of the CARDINAL Act , until the present day the ORG has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section CARDINAL(CARDINAL ) and ( CARDINAL ) .","Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG \u2019s liability in tort .","In the version applicable until DATE , Article CARDINAL \u00a7 CARDINAL , which lays down a general rule , read as follows :","\u201c CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . \u201d","On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy \u2013 ORG cywilny oraz niekt\u00f3rych innych ustaw ) ( \u201c the DATE Amendment \u201d ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability in tort under LAW of the Civil Code \u2013 including the addition of a new LAW and provision being made for the ORG \u2019s tortious liability for failure to enact legislation , a concept known as \u201c legislative omission \u201d ( zaniechanie legislacyjne ) .","Following LAW , Article DATE , in so far as relevant , reads as follows :","\u201c CARDINAL . If damage has been caused by failure to enact a law [ akt normatywny ] where there is a statutory duty to do so , the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages . \u201d","However , under the transitional provisions of LAW , LAW as applicable before DATE applies to all events and legal situations that subsisted before that date .","The concept of the ORG \u2019s civil liability for a constitutional tort was introduced into the NORP legal order on DATE , the date of entry into force of the DATE LAW .","LAW states , in so far as relevant , as follows :","\u201c Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law . \u201d","In its resolution of CARDINAL DATE ( \u201c the DATE Resolution \u201d ) , ORG ( S\u0105d Najwy\u017cszy ) , sitting as a bench of CARDINAL judges , dealt with the following legal questions submitted to it by ORG of Appeal ( S\u0105d Apelacyjny ) :","\u201c Is ORG liable for damage caused by failure to enact a law [ akt normatywny ] if the duty to enact that law , laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] was not fulfilled until the date of entry into force of [ DATE LAW ] ,","and , if so ,","When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the ORG , determined in accordance with the principles laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] ? \u201d .","The question arose in the context of a case brought by a certain ORG , who sought damages for the nationalisation of her family \u2019s printing house and , as one of the basis for her claim , invoked LAW , relying on the ORG \u2019s legislative omission consisting in its failure to issue the relevant ordinance .","ORG answer in the operative part of the resolution reads :","\u201c Until the date of entry into force of [ LAW ] the ORG \u2019s failure to issue an ordinance foreseen in section DATE ) and ( CARDINAL ) of [ LAW ] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [ nationalisation ] . \u201d","The resolution contains extensive reasoning , the main thrust of which reads as follows :","\u201c [ As regards the time - frame for the issue of the ordinance ] . The determination of the beginning of that situation carries with it a certain element of arbitrariness since [ LAW ] does not lay down any term within which the ordinance referred to in section [ CARDINAL ] ( CARDINAL ) and ( CARDINAL ) should be issued . Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay , it can be considered that the discharge of the statutory authorisation , assuming the existence of willingness of the authorised body ( the ORG ) should have taken place in DATE or in DATE at the latest . This is supported by the fact that the ORG issued ordinances implementing other provisions ( including section CARDINAL(CARDINAL ) of the LAW , a fundamental provision for the interest of the ORG ) .","[ As regards the ORG \u2019s civil liability for legislative omission ] , ... it should be concluded that before the entry into force of the CARDINAL Constitution the State had not been liable under civil law for the consequences of its legislative inactivity . ...","DATE , marking the entry into force of the LAW is the relevant date as its constitutes the beginning of the existence in the legal order of , inter alia , LAW , proclaiming the right of \u201c everyone \u201d to compensation for any harm done to him by any act of a public authority in breach of the law ....","Assuming that LAW does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature \u2019s inactivity , it must be said that the rules for the ORG \u2019s liability in the sphere of law - making should be established by means of an ordinary statute , determining in a more detailed manner than LAW premises for an effective claim . ...","Article DATE \u00a7 CARDINAL of LAW , as introduced by [ LAW ] satisfies the requirement of detailed LOC . The relevant temporal consequences have been clearly set out in its section CARDINAL , evidently indicating the prospective operation of DATE \u00a7 CARDINAL of LAW . A formulation laying down a non - retroactive character of the provision is telling in that it refers to \u201c events and legal situation that subsisted before its entry into force \u201d ... In consequence , the assessment of the effects of legislative omission subsisting DATE was governed by [ earlier provisions ] . The relevant LAW , in its version before the amendment , did not include legislative omission as it was based on a completely different premise , namely , the absence of the ORG \u2019s civil liability for the legislature \u2019s acts . ... \u201c","On DATE ORG , sitting as a bench of CARDINAL judges , dealt with a cassation appeal ( kasacja ) lodged by PERSON i Narz\u0119dzi Rolniczych \u201c NORP \u201d , a limited liability company which was at that time subject to a winding - up procedure . The appellant contested the judgment of ORG of DATE , rejecting its appeal ( apelacja ) against the judgment of ORG of DATE whereby its claim for damages arising from the ORG \u2019s failure to issue the relevant ordinance , pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of the CARDINAL Act , had been dismissed . The claim was based on LAW and DATE \u00a7 CARDINAL of LAW .","In dismissing the cassation appeal , ORG essentially reiterated the grounds stated in the DATE Resolution ( see paragraph CARDINAL above ) , stressing that the impugned legislative omission occurred in DATE or , at the latest in DATE and since then had continued . However , LAW CARDINAL of the LAW could not be considered a legal basis for a claim deriving from an \u201c omission \u201d by public authorities since that provision clearly covered only their \u201c acts \u201d . The provision of DATE , enabling a plaintiff to seek damages for legislative omission , had been introduced only on DATE by virtue of LAW . The terms of LAW were unambiguous : DATE of LAW did not apply to events and situations that had subsisted before its entry into force . Consequently , its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier , even if this state of affairs continually existed until DATE .","On DATE ORG ( PERSON ) heard a constitutional complaint lodged by a company GPE w ORG sp\u00f3\u0142ka akcyjna , challenging the constitutionality of section CARDINAL of LAW in so far as it excluded the application of DATE of LAW to situations that had subsisted before the entry into force of LAW , i.e. DATE ( see also paragraphs CARDINAL above ) . The claimant invoked , in particular , LAW right to compensation for unlawful action of public authority ) read in conjunction with LAW rule of law ) , LAW and CARDINAL ( right of ownership ) read in conjunction with LAW and CARDINAL ( protection of ownership ) and LAW ( equality before the law ) and LAW ( right of fair trial ) of LAW .","Before lodging the complaint , the company , which had been nationalised under LAW , unsuccessfully sought compensation for the Prime Minister \u2019s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by LAW . On DATE the claim was finally rejected by ORG on the grounds stated in DATE Resolution ( see paragraphs CARDINAL above ) .","ORG decision ( no . ORG CARDINAL ) , in its relevant part , reads as follows :","\u201c CARDINAL . ... Consequently , in the light of the provisions of the LAW it is difficult to assume that non - fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [ the CARDINAL LAW ] amounted to \u201c [ an ] act of a public authority in breach of the law \u201d linked with the ORG \u2019s liability for [ constitutional ] tort under LAW . Even assuming that the state of legislative omission still persists , it should at the same time be concluded that the duty is non - enforceable . Thus , it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant \u2019s nationalised property . ... Accordingly , the ORG considers that the assumption that a legislative omission \u201c in breach of the law \u201d still continues is unwarranted , in particular after the entry into force of the LAW , in the light of its standards . ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the ORG by LAW . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW ( \u201c the CAP \u201d ) ( ORG post\u0119powania administracyjnego ) , which sets out grounds on which a final administrative decision is subject to annulment , states :","\u201c CARDINAL . A public administration authority shall declare a decision null and void if :","CARDINAL ) it has been issued in breach of the rules governing competence ;","CARDINAL ) NORP it has been issued without a legal basis or in flagrant breach of the law ;","CARDINAL ) concerns a case already decided by means of another final decision ;","CARDINAL ) it has been addressed to a person who is not a party to the case ;","CARDINAL ) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature ;","CARDINAL ) it would give rise to a punishable offence in the event that it has been enforced ;","CARDINAL ) it has a flaw making it null and void by the force of law .","There is no time - limit for a party \u2019s request to have an administrative decision declared null and void under LAW .","However , there are situations where , even if certain grounds listed in LAW exist , the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure . LAW provides for the following exceptions :","\u201c A decision shall not be declared null and void on the grounds listed in paragraph CARDINAL ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) if DATE have expired from the date of its service or promulgation , as well as if the decision has produced irreversible legal effects . \u201d","Article CARDINAL reads as follows :","\u201c CARDINAL . A ruling on annulment of a decision shall be given by means of a decision .","If it is impossible to declare a decision null and void because of the circumstances referred to in LAW , a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void . \u201d","For the purposes of compensation , the effects of declaring the original administrative decision \u201c null and void \u201d or \u201c issued contrary to the law \u201d are the same .","Article CARDINAL set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article CARDINAL \u00a7 CARDINAL .","This provision was repealed by LAW with effect from DATE ( see also paragraphs CARDINAL above ) and replaced by new LAW . However , under LAW , which sets out transitional rules , LAW , in the version applicable on the repeal date , still applies to \u201c events and legal situations \u201d that subsisted before the entry into force of LAW .","LAW , in the version applicable on the relevant date , read as follows :","\u201c CARDINAL . A party who has suffered a loss on account of the issuance of a decision in breach of LAW or on account of annulment of such a decision shall have a claim for compensation for actual damage , unless he has culpably caused the circumstances mentioned in this provision .","NORP The provisions of LAW , except for LAW [ provision repealed ] , shall apply to [ such ] compensation .","Compensation is due from an authority that issued a decision in breach of Article CARDINAL \u00a7 CARDINAL , unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision ; in the latter case a claim for compensation shall be directed against the culpable party .","A public administration authority that has declared a decision null and void or declared , pursuant to LAW , that it has been issued contrary to the law shall rule on compensation due from the authority referred to in LAW . The vindication of compensation from a person who has culpably caused the circumstances mentioned in LAW , shall be effected before a court of law .","A party who is not satisfied with compensation granted by a public administration authority referred to in DATE , may lodge a claim with a court of law within DATE from the date of service of a decision given on that matter .","A claim for compensation shall be time - barred after DATE from the date on which has become final the decision declaring null and void the decision issued in breach of LAW or decision whereby an authority has declared , pursuant to LAW , that the contested decision has been issued in breach of LAW . \u201d","On DATE ORG of ORG , sitting in plenary , gave a resolution ( no . III CZP CARDINAL\/CARDINAL ) on the application of LAW and rules regarding compensation . The resolution was given in response to legal questions submitted by the First President of ORG in connection with certain problems and divergences arising in judicial practice , in particular in respect of the temporal effects of LAW as determined in LAW , the application of Article CARDINAL \u00a7 CARDINAL of LAW which replaced LAW ( see paragraphs CARDINAL and CARDINAL above ) and rules for adjudicating compensation .","The resolution contains an extensive reasoning which , in so far as relevant , may be summarised as follows :","CARDINAL ) Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the ORG applies to all claims for damages arising from an issuance of a final administrative decision given before DATE , which has been declared null and void or has been declared as being issued in breach of LAW . In contrast , paragraphs CARDINAL and CARDINAL of LAW , setting out the procedure for vindicating such claims , should be considered as no longer applicable . Consequently , a party seeking compensation under this provision should file an action directly with a civil court .","CARDINAL ) Where an annulled administrative decision has been given before the entry into force of the LAW ( DATE ) , compensation defined in LAW of the ORG shall not include loss of profits sustained in consequence of its issuance , even if such loss has occurred after DATE .","The Government , in their observations , supplied data concerning the annulment procedure and claims for compensation for nationalisation asserted by former owners or their heirs under the provisions of the ORG . Their submissions may be summarised as follows . From DATE to DATE ORG registered CARDINAL cases where applicants asked for the annulment of nationalisation decisions issued under LAW and other nationalisation laws adopted under the communist regime . Many other cases were registered in other ORG . The Government assumed that CARDINAL of those cases concerned the DATE Act . By DATE the relevant Minister annulled CARDINAL nationalisation decisions , declaring them either null and void or being issued in breach of the law . A further CARDINAL similar cases were at that time pending . In CARDINAL cases the applicants initiated the compensatory procedure under LAW . In CARDINAL cases compensation was granted , CARDINAL cases were dismissed as time - barred since the applicants had not complied with the statutory time - limit of DATE for lodging a compensation claim . _","DATE the Minister for Economy paid to claimants MONEY ( ORG ) by way of compensation for nationalised property .","In DATE ORG dealt with CARDINAL bills on reprivatisation , restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in DATE . None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued . In the case of the DATE bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the ORG or by GPE , and on compensation ( ORG ustawy o reprywatyzacji nieruchomo\u015bci i niekt\u00f3rych ruchomo\u015bci QUANTITY przej\u0119tych przez Pa\u0144stwo lub gmin\u0119 miasta sto\u0142ecznego Warszawy oraz o rekompensatach \u2013 \u201c the Restitution Bill DATE \u201d ) the relevant Act of ORG never entered into force because it had been vetoed by the President of GPE .","Each of those bills , although they differed in specific modalities , contained provisions for compensation for nationalisation of property under LAW .","In DATE the NORP ORG started the first reading of the Government \u2019s bill on compensation for property or other assets taken over by the ORG ( projekt ustawy o rekompensatach za przej\u0119te przez pa\u0144stwo nieruchomosci oraz inne sk\u0142adniki mienia ) ( \u201c the DATE Compensation Bill \u201d ) . In general , compensation claims were to be subject to a statutory ceiling of PERCENT of the value of the original property taken over by the ORG . The claims of the owners of property nationalised under the provisions of LAW were included in the list of claimants entitled to compensation . The work on the CARDINAL Compensation Bill was discontinued in DATE since snap parliamentary elections were called following the collapse of the government coalition .","In DATE the new Government started preparatory work on fresh restitution legislation , i.e. the \u201c PERSON on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures \u201d ( projekt ustawy o \u015bwiadczeniach pieni\u0119\u017cnych przyznawanych niekt\u00f3rym osobom , kt\u00f3rych dotyczy\u0142y procesy nacjonalizacji ) ( \u201c the DATE Compensation Bill \u201d ) .","The DATE Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation , corresponding to a certain \u2013 not stipulated in the bill but to be determined in the Minister for ORG \u2019s future ordinance \u2013 percentage of the value of the property in question on the date of its nationalisation .","In ORG report on the assessment of the budgetary impact of the implementation of the DATE Compensation Bill ( drawn up in DATE ) the total value of the claims to be covered by the CARDINAL Compensation Bill was estimated at PLN MONEY .","It was expected that CARDINAL applications for compensation will be submitted under the provisions of the new legislation . The process of the realisation of cash payments was to be spread over DATE and instalments were to be indexed DATE in accordance with the consumer price index .","The entry into force of the bill was tentatively foreseen for DATE .","In DATE the Minister for Finance was asked to make an analysis of the consequences of the implementation of DATE Compensation Bill .","On DATE the Minister for Finance submitted a report stating that if the bill entered into force in DATE , there would be an abrupt increase in the public debt by ORG which would correspond to PERCENT of ORG ) . In the circumstances , the allocation of PLN CARDINAL,CARDINAL,CARDINAL,CARDINAL for securing nationalisation claims might result in GPE \u2019s exceeding the permissible limits of the national debt in relation to GNP as set by ORG .","In DATE the Minister for ORG issued a press release on the ORG website , informing the public that the ORG had decided not to submit the DATE Compensation Bill to ORG . That statement gives the following explanation :","\u201c In view of the considerable savings that have been made in DATE , connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation , in the present economic situation , [ the DATE Compensation Bill ] can not be enacted . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96577","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2010,"docname":"CASE OF BAKOWSKA v. POLAND","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 6-1","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant filed a claim for payment against a housing cooperative of which she was a member . By a judgment of CARDINAL DATE ORG dismissed the claim . The judgment was upheld on DATE by ORG . On DATE the applicant was served with that judgment together with its written grounds .","On DATE she filed a request with ORG to be granted a legal - aid lawyer for the purpose of lodging a cassation appeal . Her request was subsequently forwarded to ORG as the PERSON court lacked jurisdiction to deal with it . The request was allowed by a decision of DATE .","On DATE the decision of CARDINAL DATE was served on ORG . At the same time ORG informed the Bar about the date on which the applicant had been served with the second - instance judgment .","On DATE ORG informed the applicant that a legal - aid lawyer had been assigned to her case . By a letter of DATE to the court the lawyer refused to lodge a cassation appeal , finding no grounds to do so . The letter read :","\u201c Having examined the file in detail , I have not found grounds for lodging a cassation appeal . The judgment given on DATE by ORG did not breach any provisions of substantive law . Nor were any provisions of procedural laws violated during the proceedings .","The findings of fact made by the courts show without any ambiguity that the applicant had never had the right to a co - operative apartment which could be assimilated to ownership . She had admitted , both before the first - instance and the appellate court , that at the time of the exchange of apartments she had been aware that her right was only assimilable to the rights arising out of a rental contract . ( ... ) It had been open to her to take steps in order to have her right transformed into an ownership - like right , but she had not done so . Hence , the first instance court was right in finding that the defendant housing co - operative was not obliged to pay compensation to the applicant . The appellate court accepted these findings . In these circumstances , a cassation appeal would not offer any prospects of success . \u201d","On DATE the applicant requested ORG to assign a new legal - aid lawyer to her case .","On DATE the court informed the applicant that she should file a request with ORG for a new lawyer to be appointed . On DATE the applicant accordingly submitted her request to the local ORG .","By a letter of DATE ORG dismissed the request , having found that the applicant 's previous legalaid lawyer had been entitled to refuse to draft a cassation complaint .","On DATE the applicant again requested the court to assign a legalaid lawyer to the case . On DATE the ORG informed the applicant that the refusal to lodge a cassation appeal could not justify assigning a new lawyer for the same purpose .","Pursuant to LAW , a court should give all necessary procedural instructions to a party acting without a lawyer and , in particular , should indicate the consequences of that party 's acts or failures to act .","Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family 's standard of living .","Pursuant to Article CARDINAL of the Code , persons exempted from court fees may request that legal aid be granted to them . The court will then request the relevant ORG or ORG to assign an advocate or a legal adviser to the claimant 's case .","At the material time a party to civil proceedings could lodge a cassation appeal with ORG against a final judicial decision of a secondinstance court which terminated the proceedings .","Under Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within DATE from the date on which the decision with its written grounds was served on the party concerned . Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected .","Article CARDINAL of LAW of DATE , as amended , reads , insofar as relevant :","\u201c CARDINAL . The Bar is established to provide legal assistance , co - operate in protecting a person 's rights and freedoms as well as to formulate and apply the law .","The Bar is organized as a self - governing association .","An advocate whilst executing his \/ her professional duties is accountable only to the law . \u201d","Article CARDINAL of the LAW provides as follows :","\u201c The general tasks of the professional ORG are as follows :","CARDINAL ) creation of conditions for the statutory performance of the Bar 's tasks ,","CARDINAL ) representation of the LOC and protection of its rights ,","CARDINAL ) supervision over the observance of the rules regulating the practice of the profession ,","CARDINAL ) development of professional skills and training of advocates ,","CARDINAL ) determination and promotion of professional ethics and ensuring their observance ,","CARDINAL ) management ( ... ) of the Bar 's assets . \u201d","Article CARDINAL of the LAW reads :","\u201c CARDINAL . An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party . Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local ORG , and in situations where time is of the essence , by the PERSON of that ORG .","In cases where legal assistance is granted on the basis legal regulations concerning legal aid , only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance . \u201d","Under LAW of the LAW , an advocate shall provide legal aid services in the jurisdiction of a court where he or she has their office .","Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by ORG . They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court .","Under LAW adopted by ORG on DATE , when an advocate , either privately hired by the client or appointed under the legalaid scheme , considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view , the lawyer shall give notice of termination of the power of attorney , terminate the representation , or notify the refusal to the body which appointed him or her .","In DATE ORG issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal . It replied to the question in the positive .","The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice , but also touched on human rights , and the right of access to a court in particular . Nevertheless , there was no comprehensive and coherent regulation of legal aid available under NORP law .","The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism . However , a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole , mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure . In particular , the scope of legalaid lawyers ' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure .","As a result , the scope of legalaid lawyers ' obligations to provide a party to the proceedings with \u201c legal aid \u201d in civil proceedings was unclear . In particular , the provisions on lawyers ' legalaid obligations in connection with cassation proceedings before ORG lacked clarity . The application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case - law of the NORP courts .","The court observed that the issue of the possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law . The notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .","The constitutional role of ORG , the highest judicial authority , was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail . In case of a disagreement between the party and the lawyer , it was open to the party to complain to the local Bar under LAW . The Bar could then appoint a new lawyer who could lodge a cassation appeal , requesting at the same time to be granted leave to appeal out of time under LAW . It was true that the practice of ORG was not coherent in that in some cases it had rejected such requests and in others it had accepted them . However , it did not prevent the parties from having recourse to this course of action .","Pursuant to LAW , a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time - limit ; this measure shall be performed simultaneously with the lodging of the request .","Article CARDINAL of the Code of Civil Procedure reads , in so far as relevant :","\u201c If a legal representative ... has been appointed in a case , the court correspondence shall be served on [ him or her ] .","However , in a number of decisions the civil courts have held that the running of the time - limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non - represented party and its subsequent grant or refusal . That time - limit starts to run on the date when the party was served with the judgment of the appellate court together with its written grounds , also where the request for legal aid has subsequently been granted ( ORG decisions of DATE , II CZ CARDINAL ; DATE , I PKN CARDINAL\/CARDINAL ; DATE , NORP UZ CARDINAL\/CARDINAL ; DATE , II UKN CARDINAL\/CARDINAL ; DATE , I CKN CARDINAL\/CARDINAL ; DATE ; II UZ CARDINAL ; DATE , I ORG CARDINAL\/CARDINAL ; DATE , II UZ CARDINAL\/CARDINAL ; DATE , ORG , DATE , I ORG CARDINAL\/CARDINAL ) .","ORG has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination ( DATE , PERSON ; DATE , II UZ CARDINAL\/CARDINAL ) . In a further series of decisions ORG considered that it would be unfair for the legally - aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within DATE counted from DATE of service of the judgment on the party . A request to appeal out of time should therefore be submitted within DATE from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal ( DATE , II UZ CARDINAL ; DATE , I ORG CARDINAL\/CARDINAL ) , or from the date when the lawyer was informed that he had been assigned to the case by the local bar association ( DATE , PERSON ; CARDINAL DATE , II UZ DATE ; CARDINAL DATE , PERSON ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93134","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2009,"docname":"PLAT ROR OCH SVETS SERVICE I NORDEN AB v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Josep Casadevall","text":["The first applicant ( the applicant company ) is a NORP limited liability company , PERSON och ORG i Norden AB . The other applicants , PERSON ( the second applicant ) , Mr PERSON ( the third applicant ) , PERSON ( the fourth applicant ) and PERSON ( the fifth applicant ) , all of whom are NORP nationals and live in the south of GPE , are the owners of the applicant company . The applicants are represented before the ORG by the second applicant .","The second applicant has also made some separate complaints . He is , regarding these complaints , represented before the ORG by Mr. PERSON , a lawyer practising in GPE .","CARDINAL","NORP In DATE ORG decided to perform a tax audit of the applicant company . On DATE a preliminary audit report ( f\u00f6rhandspromemoria ) was drawn up .","In DATE , on the basis of the findings of the preliminary audit report , ORG requested ORG ( l\u00e4nsr\u00e4tten ) of GPE to sequestrate ( bel\u00e4gga med betalningss\u00e4kring ) the applicant company \u2019s assets to the amount of MONEY ( SEK ) which corresponded to the company \u2019s tax debt , including tax surcharges , as estimated at that time . ORG further requested that the decision be taken without the applicant company having been heard or informed of the request .","ORG submitted that it had discovered invoices that appeared false ( osanna ) , in that they gave the incorrect impression that the applicant company had hired labour from subcontractors ( under - entrepren\u00f6rer ) in order to make deductions for costs and ingoing value - added tax ( VAT ) , thereby avoiding paying employer \u2019s contributions ( arbetsgivaravgifter ) for its own employees . Furthermore , ORG pointed out several defects in the invoices , for example , that they lacked information proving the amount of TIME worked and who the customer was . ORG further claimed , inter alia , that most of the subcontractors had not , during the time they were supposedly supplying the applicant company with labour , accounted for any salaries paid to employees .","On DATE ORG rejected the request for sequestration as it found that ORG had not , to a sufficient degree , proven that the applicant company had the alleged tax debt .","ORG appealed against the judgment to ORG ( kammarr\u00e4tten ) in GPE , maintaining its claim but no longer requesting that the decision be taken without the applicant company having been heard or informed of it . In particular , ORG stressed that a representative of CARDINAL of the subcontractors who had been heard during the preliminary criminal investigation ( see \u00a7 CARDINAL below ) initiated by ORG ( DATE hereafter \u201c the Bureau \u201d ) had denied any knowledge of the applicant company and had denied that he had issued any invoices to it .","On DATE , on the applicant company \u2019s request , an oral hearing was held before ORG . At the hearing ORG referred to some interrogation reports ( f\u00f6rh\u00f6rsprotokoll ) held with CARDINAL persons during the ORG \u2019s preliminary criminal investigation . These reports had , prior to the oral hearing , not been referred to by ORG . ORG adjourned the hearing for TIME to give the applicant company \u2019s representative time to consider the new material . When the hearing resumed , the applicant company objected to the fact that ORG had been allowed to refer to selected parts of the very extensive body of information to which only ORG had access .","At the conclusion of the hearing the applicant company was afforded DATE to supplement the grounds for its plea .","The applicant company demanded that ORG reject ORG appeal and that the court grant it access to all the information in the GPE \u2019s criminal investigation . It submitted that the invoices corresponded to services ordered and paid for and that it had verified that all subcontractors had certificates proving that they were responsible for paying taxes and contributions for their businesses ( PERSON ) and who their legal representatives were .","On DATE ORG rendered its judgment in the case . It found that the merits of the case were such as to make it probable that the applicant company would not be allowed to deduct the ingoing VAT . It further considered there to be an obvious risk that the applicant company would try to shirk responsibility for the debt . Therefore , and since the court did not find it disproportionate , it granted ORG request as regards the ORG . However , the court found that it would be in breach of LAW to sequester the applicant company \u2019s assets corresponding to the estimated tax surcharges . The court , therefore , rejected ORG appeal in that part . The court also found that it could not , within the instant case , try the applicant company \u2019s request to grant it access to all the information in the ORG \u2019s criminal investigation . Therefore , it dismissed that request .","Both parties appealed against the judgment . ORG requested ORG ( ORG ) to sequester an additional part of the applicant company \u2019s assets , corresponding to the debt regarding tax surcharges , whereas the applicant company requested the court to quash ORG judgment . In its appeal , the applicant company complained , inter alia , that ORG had been allowed to use selected information from the criminal investigation and that the applicant company had not been allowed access to the entire investigation .","On DATE ORG granted ORG leave to appeal and , on DATE , it found that the sequestration of assets to cover tax debts concerning tax surcharges would not be in violation of the ORG , as long as the principle of proportionality and the limitations set out in the PERSON on sequestration for taxes , tolls and fees ( lagen om betalningss\u00e4kring f\u00f6r skatter , tullar och avgifter ) were respected . The court then noted that the tax debt , including the tax surcharges , had at the time of its judgment been confirmed by ORG . After having observed that the tax debt concerned a substantial amount , the court found that there was a considerable risk that the applicant company would try to shirk responsibility for the debt . Therefore , and since the court did not find it disproportionate , it granted ORG appeal and sequestrated additional property corresponding to the tax surcharges . In the same judgment , ORG refused leave to appeal in all other parts of the case .","At some point the ORG had initiated a criminal investigation regarding aggravated tax crimes and aggravated book - keeping crimes against several people involved with the applicant company , including the second applicant . In DATE the ORG conducted a search of the applicant company \u2019s premises , questioned several people and seized part of the applicant company \u2019s books . However , on DATE the ORG dropped the criminal investigation against the second applicant , since it considered that it would not be able to prove that he had committed any criminal acts . In DATE the criminal investigation was dropped against the other suspects .","On DATE , the applicant company was declared bankrupt , as it was unable to pay its tax debts ( other than the ones concerned in this case ) and therefore found to be insolvent .","On DATE ORG decided that the applicant company was not entitled to certain deductions claimed by it in its GPE declarations for DATE . Therefore , it refused the applicant company ORG deductions amounting to SEK CARDINAL,CARDINAL,CARDINAL and , in addition , found the applicant company liable to pay SEK CARDINAL,CARDINAL in tax surcharges ( skattetill\u00e4gg ) , as it was considered to have supplied incorrect information in its GPE declarations . This decision was based on the results of the tax audit of the applicant company that had been carried out by ORG DATE and which had resulted in an audit report ( revisionspromemoria ) of DATE .","ORG decision was not appealed against by the applicant company or any of its representatives .","NORP Some time during DATE ORG requested ORG of GPE , in accordance with the rules on personal responsibility for representatives of corporations ( f\u00f6retr\u00e4dar - ansvar ) , to oblige the second applicant to pay SEK MONEY with interest to the ORG . ORG claimed that the applicant company , according to the audit report , had issued false invoices to cover up payment of salaries to the applicant company \u2019s own employees . By making deductions for the ingoing VAT in the invoices , the applicant company had , inter alia , wrongfully been awarded repayment of a surplus of ingoing VAT to the amount of SEK CARDINAL,CARDINAL . ORG further submitted that the second applicant , who owned shares in the applicant company and who had been its only board member and sole representative , had with intent or through gross negligence supplied the authorities with false information which had led to the applicant company being wrongfully awarded repayment of a surplus of ingoing GPE . Moreover , ORG noted that it had decided in accordance with the information in the tax audit and that neither the applicant company nor the second applicant had appealed against its decision , despite the fact that such a possibility existed before as well as after ORG had petitioned ORG in the present case . Therefore , ORG argued , no examination of the validity of the underlying tax decision should be made in the present case .","The second applicant contested the claim . He submitted , inter alia , that the applicant company had not been wrongfully awarded repayment of ingoing NORP and that ORG had not been able to prove that the invoices were false . The applicant company had not appealed against ORG decision of DATE because it had by then been declared bankrupt . Furthermore , he submitted that he had not acted with intent or gross negligence . He had come into an already on - going business and the actual administration of the company had been handled by CARDINAL other persons who had been responsible for all invoices . The invoices had also been inspected by the applicant company \u2019s accounting consultant , who had made no criticism of the invoices or how the company was run . The second applicant himself had made sure that all the subcontractors had certificates proving that they were responsible for paying taxes and contributions for their businesses and that the companies had complete boards of directors . Therefore , he had had no reason to believe that the invoices were false and no criticism could be made of his management of the company \u2019s administration . Moreover , the second applicant claimed that there were special reasons to remit liability , in full or at least partly , because his influence and involvement in the company \u2019s business had been limited and very brief .","On DATE , after having held an oral hearing , ORG rendered its judgment . It first noted that the second applicant had been a shareholder and the sole member of the board in the applicant company during the time when the incorrect information had been given and that he had signed the tax declarations which had contained the incorrect information . The court further considered that the second applicant had had an obligation to ensure that the applicant company promptly and correctly paid its taxes and fees . In its view , none of his objections were such as to call into question the validity of the underlying tax decision . In any event , the court observed that the second applicant had had the overall responsibility for the management of the company and that he could not relinquish this responsibility to his colleagues . Lastly , it stressed that he had been responsible for ensuring that the information given in the tax declarations was correct . Thus , the court found that the second applicant \u2019s insufficient control over the management of the applicant company amounted to gross negligence . Therefore , and since there were no reasons to remit liability , the court granted ORG request .","The second applicant appealed against the judgment to ORG in GPE , requesting , in the first place , that the court reject ORG petition . In the alternative , he requested that the liability be remitted in full or lowered . He maintained his claims and stressed , inter alia , that , despite a lengthy investigation into the applicant company by the ORG , no one had been charged with any criminal acts .","ORG disputed the appeal and submitted that the ORG had dropped the criminal investigation because it had not deemed it possible to prove whether the acts had been committed by the second applicant or another person involved with the company .","On DATE , after having held an oral hearing , ORG rendered its judgment . It first noted that the case before it had come to concern mainly the question of the significance of the underlying tax decision of DATE . In this respect , it noted that there had been no appeal against the tax decision and that the second applicant had not requested that the decision be tried in accordance with LAW , section CARDINAL of LAW ( skattebetalningslagen ) . Hence , the court found that , because of the existing possibilities for the second applicant to have the underlying tax decision tried , before as well as after ORG had petitioned ORG in the present case , the validity of the underlying tax decision could not be tried within the instant proceedings . The court then considered that the second applicant \u2019s management of the applicant company had been lacking to such an extent he had to be considered grossly negligent . Therefore , and since there were no special reasons to remit liability , the second applicant \u2019s appeal was rejected .","The second applicant appealed against the judgment to ORG where he maintained his claims . He also complained about the fact that ORG had refused to try the validity of the underlying tax decision within the instant proceedings . Furthermore , he stressed that the criminal investigation against all persons involved in the applicant company had been dropped , for which reason ORG should not have been allowed to refer to the allegedly false invoices . He further claimed that the courts had violated the presumption of innocence when they based their judgments on criminal acts which had not been proven .","On DATE ORG refused leave to appeal .","The PERSON on sequestration for taxes , tolls and fees ( lagen om betalningss\u00e4kring f\u00f6r skatter , tullar och avgifter , FAC \u2013 hereafter \u201c the DATE LAW ) contains provisions that give the ORG a possibility to sequester property to ensure payment for a claim for taxes , tolls , or fees in situations where it is feared that the debtor might otherwise try to shirk payment . The provisions roughly correspond to the provisions on provisional attachment ( kvarstad ) possible in civil or criminal cases and their purpose is to secure temporarily payment of the ORG \u2019s claims until voluntary payment of the debt is made or it can be secured through attachment ( indrivning ) .","Section CARDINAL of the DATE LAW states that a debtor \u2019s property may be sequestered to cover the ORG \u2019s claim for taxes , tolls or fees . If the claim has not yet been confirmed ( fastst\u00e4lld ) , sequestration may be utilised only if there is probable cause ( sannolika sk\u00e4l ) to believe that the claim will be confirmed and only to the expected amount of the confirmed claim .","From section CARDINAL of LAW it follows that sequestration may be used also as regards claims for GPE and tax surcharges .","According to section CARDINAL of LAW , sequestration may be used only if there is a considerable risk that the debtor will try to shirk payment of the debt and the debt concerns considerable amounts . Furthermore , sequestration may only be used if the reasons for sequestration outweigh the encroachment or harm suffered by the debtor or any other opposing interest .","LAW ( skattebetalningslagen , ORG hereafter \u201c the DATE LAW ) contains , inter alia , provisions regulating how to account for and how to pay one \u2019s preliminary and final tax and ORG . It also prescribes responsibility regarding payment of taxes that can be levied on representatives of corporations .","LAW , section CARDINAL ( a ) of the DATE Act states that if a representative of a corporation , with intent or by gross negligence , has supplied incorrect information which has led to the corporation being wrongfully awarded a surplus of ingoing GPE , the representative is responsible for the repayment of the amount with interest , together with the corporation .","If there are special reasons ( s\u00e4rskilda sk\u00e4l ) the liability for the representative may , according to LAW , section CARDINAL ( b ) of LAW be remitted , fully or in part .","LAW , section DATE CARDINAL Act states that a representative of a corporation , against whom proceedings in accordance with LAW , section CARDINAL ( a ) have been instituted , may institute proceedings before a court to have the validity of the underlying tax decision tried ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58497","languageisocode":"ENG","respondent":"CHE","branch":"GRANDCHAMBER","date":2000,"docname":"CASE OF AMANN v. SWITZERLAND","importance":1,"conclusion":"Violation of Art. 8 with regard to interception of telephone call;Violation of Art. 8 with regard to creation and storing of information card;Preliminary objection dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant , who was born in DATE , is a businessman living in GPE . In DATE he imported depilatory appliances into GPE which he advertised in magazines .","On DATE a woman telephoned the applicant from the former NORP embassy in GPE to order a \u201c ORG GPE \u201d depilatory appliance .","That telephone call was intercepted by ORG ( Bundesanwaltschaft \u2013 \u201c ORG \u201d ) , which then requested ORG of the police of the GPE of GPE to carry out an investigation into the applicant and the goods he sold .","The report drawn up by the police of the GPE of GPE in DATE stated that the applicant , who had been registered in ORG since DATE , was in the aerosols business . It stated that \u201c ORG GPE \u201d was a battery - operated depilatory appliance ; a leaflet describing the appliance was appended to the report .","On DATE ORG drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the GPE of GPE .","NORP In DATE the public learned of the existence of the card index being kept by ORG and many people , including the applicant , asked to consult their card .","Various laws on accessing and processing the ORG \u2019s documents were then enacted .","On DATE the special officer in charge of the ORG \u2019s national security documents ( \u201c the special officer \u201d ) sent the applicant , at his request , a photocopy of his card .","The applicant \u2019s card , which was numbered ( CARDINAL : CARDINAL ) CARDINAL and on which CARDINAL passages had been blue - pencilled ... , contained the following information :","\u201c from ORG identified as a contact with the NORP embassy according to ... . A. does business of various kinds with the [ A. ] company . Appendices : extract from ORG and leaflet . ... \u201d","As soon as he received his card , the applicant asked the Ombudsman at ORG to disclose the blue - pencilled passages .","On DATE the ORG replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card . The other censored passage related to a technical surveillance measure ordered against CARDINAL party ; the ORG stated that he would be recommending that the special officer disclose that information , since DATE in his view \u2013 the applicant \u2019s interest prevailed over the public interest in keeping it secret .","On DATE the special officer decided , on the basis of Article CARDINAL \u00a7 CARDINAL of the Order of CARDINAL DATE on ORG , that the initials at the end of the card could not be disclosed . He also considered that the other censored passage contained counter - intelligence which , pursuant to LAW ( a ) of the LAW , should not be disclosed . On the basis of those considerations , the disclosure of the applicant \u2019s card was extended to one word ( \u201c report \u201d ) :","\u201c from ORG identified as a contact with the NORP embassy according to report ... A. does business of various kinds with the [ A. ] company . Appendices : extract from ORG and leaflet . ... \u201d","On DATE the applicant filed a request for compensation with ORG . His request was refused on DATE .","On DATE the applicant filed an administrative - law action with ORG claiming compensation from ORG for the unlawful entry of his particulars in the card index kept by ORG . He also requested that his file and card be sent immediately to ORG with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement .","On being invited to submit its written observations , the ORG stated , in its memorial of CARDINAL DATE , that according to the information provided by ORG and the special officer the record of the surveillance was no longer in the federal police \u2019s files . It pointed out in that connection that , pursuant to section DATE ) of LAW ( \u201c NORP \u201d ) , documents which were no longer necessary had to be destroyed ( \u201c PERSON technischen Ueberwachung ist gem\u00e4ss PERSON ... in den ORG der PERSON . In diesem GPE ist anzumerken , dass nicht mehr ben\u00f6tigte GPE gem\u00e4ss Art . CARDINAL Abs . CARDINAL BStP ... vernichtet werden m\u00fcssen \u201d ) .","ORG held hearings on DATE and CARDINAL DATE .","The applicant \u2019s lawyer pointed out that the case number of the card , namely ( CARDINAL : CARDINAL ) CARDINAL , was a code meaning \u201c communist country \u201d ( CARDINAL ) , \u201c GPE \u201d ( CARDINAL ) , \u201c espionage established \u201d ( CARDINAL ) and \u201c various contacts with the NORP bloc \u201d ( CARDINAL ) .","The ORG \u2019s representative stated that where someone ( jemand ) at the former NORP embassy was under surveillance , on every telephone call both parties to the conversation were identified , a card drawn up on them and a telephone monitoring report ( ORG Bericht ) made . In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags ; the intention had been to destroy them as well , but when the post of special officer had been instituted everything had had to be maintained \u201c in its present state \u201d . She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed . According to information she had received from the special officer , the reports had not been sorted and it would require CARDINAL people and DATE work to examine the contents of all the bags still in existence .","In a judgment of DATE , which was served on DATE , ORG dismissed all the applicant \u2019s claims .","Regarding the issue whether there was a legal basis for the measures complained of , ORG referred first to section CARDINAL(CARDINAL ) PERSON and LAW of DATE on ORG . However , it considered it unnecessary to examine whether those provisions could have provided a lawful basis for the alleged infringement of the applicant \u2019s personality rights , since one of the conditions for awarding compensation had not been met .","The court then referred to sections CARDINAL et seq . , and particularly section CARDINAL PERSON on the monitoring of telephone communications and postal correspondence , and to Articles CARDINAL et seq . of LAW , which govern \u201c crimes or major offences against the ORG , \u201d and reiterated that information could lawfully be gathered DATE even before a prosecution was brought \u2013 in order to prevent an offence being committed against the ORG or national security if there was evidence that such an offence was being prepared .","In that connection ORG found :","\u201c ... a card was drawn up on the plaintiff in connection with the then monitoring of telephone communications with the NORP embassy for counter - intelligence reasons . As he had contacts with a male or female employee of the NORP embassy and it was not immediately clear that the \u2018 ORG Tweez\u2019 appliance which he sold was a harmless depilatory instrument , the authorities acted correctly in investigating his identity , his circumstances and the \u2018 ORG Tweez\u2019 appliance in question and recording the result . \u201d","ORG held , however , that it did not have to rule on whether those provisions , particularly section DATE ) PERSON , allowed the information thus obtained to be kept after it had become apparent that no criminal offence was being prepared ( \u201c PERSON , ob die NORP weiter aufbewahrt werden durften , PERSON herausgestellt hatte , dass keine strafbare Handlung vorbereitet wurde \u201d ) , since the applicant had not suffered a serious infringement of his personality rights .","CARDINAL","Lastly , ORG held that the applicant \u2019s administrative - law action , which he had filed with it on DATE , was an \u201c effective remedy \u201d within the meaning of LAW . It also pointed out that the applicant could have instituted proceedings challenging certain data in ORG card index and requesting that they be amended . In that connection ORG referred to , inter alia , ORG Directives of DATE applicable to ORG in ORG ( section CARDINAL ) , to LAW of DATE on ORG ( Article CARDINAL \u00a7 CARDINAL ) and to ORG Order of DATE on ORG ( LAW ) .","In DATE the applicant \u2019s card was removed from the card index and transferred to ORG where it can not be consulted for DATE .","The relevant provisions of LAW in force at the material time were worded as follows :","\u201c The powers and duties of ORG , as referred to in the present LAW , are the following , among others :","...","It shall ensure that GPE \u2019s external security is protected and its independence and neutrality maintained ;","It shall ensure that the ORG \u2019s internal security is protected and that peace and order are maintained ;","... \u201d","The relevant provisions of ORG Decree of DATE on ORG are worded as follows :","\u201c ORG ( ORG ) shall provide an investigation and information service in the interests of the ORG \u2019s internal and external security . That service shall comprise :","NORP The surveillance and prevention of acts liable to endanger the ORG \u2019s internal or external security ( police politique ) ;","Police investigations in the prosecution of offences against the internal or external security of the ORG ( police judiciaire ) . \u201d","The relevant provisions of LAW in force at the material time were worded as follows :","\u201c \u2026","ORG Office shall be provided with the personnel necessary to enable it to run a uniform investigation and information service in the interests of the ORG \u2019s internal and external security . ORG Office shall , as a general rule , act in concert with the relevant police authorities of the cantons . It shall in each case inform those police authorities of the results of its investigations as soon as the aim of and stage reached in the proceedings make it possible to do so . \u201d","\u201c CARDINAL . The investigating judge may order monitoring of the accused \u2019s or suspect \u2019s postal correspondence and telephone and telegraphic telecommunications if","( a ) the criminal proceedings concern a crime or major offence whose seriousness or particular nature justifies intervention or a punishable offence committed by means of the telephone ; and if","( b ) specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence ; and if","( c ) without interception , the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results .","CARDINAL bis . Where the conditions justifying the monitoring of the accused or suspect are satisfied , third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him ... The telephone connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused .","QUANTITY . Recordings which are not needed for the conduct of an investigation shall be kept in a separate place , under lock and key , and shall be destroyed at the end of the proceedings . \u201d","\u201c CARDINAL . Within TIME of his decision , the investigating judge shall submit a copy of it , accompanied by the file and a brief statement of his reasons , for approval by the President of ORG .","NORP The decision shall remain in force for not DATE ; the investigating judge may extend its validity for CARDINAL or more further periods of DATE . The order extending its validity , accompanied by the file and the statement of reasons , must be submitted , not DATE before expiry of the time - limit , for approval by the President of ORG .","The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary , or immediately if his decision is rescinded . \u201d","\u201c CARDINAL . NORP The President of ORG shall scrutinise the decision in the light of the statement of reasons and the file . Where he finds that there has been a breach of federal law , including any abuse of a discretionary power , he shall rescind the decision .","He may authorise monitoring provisionally ; in that case , he shall lay down a time - limit within which the investigating judge must justify the measure , either by adding any relevant material to the file or orally . \u201d","\u201c CARDINAL . The procedure shall be kept secret even from the person concerned . The President of ORG shall give brief reasons for his decision and notify the investigating judge thereof within DATE of the date when the monitoring began or , where the period of validity has been extended , before the further period begins .","NORP The President of ORG shall ensure that the interception measures are discontinued on expiry of the time - limit . \u201d","\u201c CARDINAL . Before the opening of a preliminary investigation ORG may order interception of postal correspondence and telephone and telegraphic communications and prescribe the use of technical appliances ...","He may also order those measures in order to prevent the commission of a punishable offence justifying such intervention where particular circumstances give rise to the presumption that such an offence is being prepared .","Sections DATE shall be applicable by analogy . \u201d","The relevant provisions of ORG Directives of DATE applicable to ORG in ORG are worded as follows :","\u201c CARDINAL . There must be a legal basis for the processing of personal data .","Personal data may be processed only for very specific purposes . The data and technique used to process them must be appropriate and necessary to the performance of the task to be carried out .","Inaccurate or incomplete data must be rectified having regard to the purpose of the processing .","Data which are of no foreseeable further use or which have evidently been processed illegally must be destroyed .","The obligation to store them in ORG is reserved .","... \u201d","\u201c CARDINAL . As regards personal data files the federal offices and other administrative units having the same status must take the necessary measures to ensure that they can supply information on the legal basis and aim of the files , the nature of the processed data and the lawful recipients thereof to anyone requesting the same .","On request , they must indicate in a comprehensible manner to anyone who has disclosed his identity whether DATE and which \u2013 data on him from a particular file have been processed .","... \u201d","\u201c If it emerges , on a request , that the data on the person making the request are inaccurate or incomplete , or inappropriate to the purpose for which they have been recorded , or that processing is illegal for another reason , the organ in question must rectify or destroy such data immediately , and at the latest when the file is next accessed . \u201d","The relevant provisions of ORG Order of DATE on ORG are worded as follows :","\u201c CARDINAL . The present Order shall guarantee that persons in respect of whom the federal police possess documents compiled on grounds of national security can defend their personality rights without hindering the performance of national security tasks .","Federal documents compiled on grounds of national security shall be placed in the custody of a special officer ... \u201d","\u201c CARDINAL . The special officer shall have custody of all documents belonging to ORG .","He shall then sort the documents and withdraw those which serve no further purpose ... \u201d","\u201c CARDINAL . The special officer shall allow applicants to consult their cards by sending them a photocopy thereof .","He shall conceal data relating to persons who have processed the cards and to foreign intelligence and security services .","Furthermore , he may refuse or restrict the consultation if it","( a ) reveals details of investigative procedures in progress or of knowledge relating to the fight against terrorism , counter - intelligence or the fight against organised crime ;","... \u201d","\u201c CARDINAL . The ombudsman appointed by ORG shall examine , at the request of the person concerned , whether the present Order has been complied with .","\u2026 \u201d","\u201c CARDINAL . Anyone claiming that his request to consult his card has not been dealt with in accordance with the present Order may contact the ombudsman within DATE .","NORP If the ombudsman considers that the Order has been complied with , he shall inform the applicant accordingly . The applicant may lodge an appeal with ORG within DATE of receiving the ombudsman \u2019s decision .","NORP If the ombudsman considers that the Order has not been complied with , he shall inform the special officer and the applicant accordingly . The special officer shall then give a fresh decision , which is subject to appeal . \u201d","The relevant provisions of LAW of DATE on ORG provide :","\u201c CARDINAL . Authorisation to consult documents shall be granted to persons who submit a prima facie case that they have sustained pecuniary or non - pecuniary damage in connection with information transpiring from documents held by ORG or with acts by officers of ORG .","\u2026 \u201d","\u201c CARDINAL . The special officer shall sort the documents placed in his custody and eliminate those which are no longer necessary for national security and are no longer the subject of a consultation process .","Documents relating to criminal proceedings shall be eliminated if","( a ) the time - limit for prosecuting the offence has expired following a stay of the proceedings ;","( b ) the proceedings have been closed by an enforceable judgment .","The eliminated documents shall be stored in ORG . They can no longer be consulted by the authorities and access to them shall be prohibited for DATE . \u201d","The relevant provisions of ORG Order of DATE on ORG are worded as follows :","\u201c CARDINAL . A person who contests the accuracy of certain data may request that an appropriate annotation be marked on the documents or appended thereto .","Documents which are manifestly erroneous shall be rectified at the request of the person concerned .","... \u201d","A Parliamentary Commission of Inquiry ( \u201c ORG \u201d ) was set up to investigate the so - called \u201c card index \u201d affair . In its report published in ORG f\u00e9d\u00e9rale ( ORG ) DATE , I , pp . CARDINAL et seq . ) it noted , among other things , in connection with the monitoring of telephone conversations ( pp . CARDINAL and CARDINAL ) :","\u201c According to various sources , a number of people feared that their telephone conversations were being monitored for political reasons . The ORG has conducted a thorough examination of the technical surveillance measures ordered by ORG . In the course of that examination it requested from ORG a full and detailed list of the persons whose telephones were tapped and the telephone connections which were monitored ; that list was then compared with the list requested independently from the ORG , ORG and ORG . The ORG was then able to satisfy itself , partly with the help of certain documents and also following an interview with the President of ORG , that there were no differences between the lists drawn up by the authorities ordering the telephone tapping and the authorities implementing those orders .","...","The federal investigating judge and , before the preliminary investigation begins , ORG have power to order a surveillance measure . A decision taken to this effect is valid for DATE but may be extended if necessary . It requires in all cases the approval of the President of ORG . That approval procedure has been considerably formalised over DATE and is now applied by means of a pre - printed form . The ORG noted that all decisions had been submitted to the President of ORG and that he had approved all of them without exception ... \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22937","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2002,"docname":"WALL v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and living in GPE . The respondent Government are represented by their Agent Mrs PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a social welfare district committee ( sociala distriktsn\u00e4mnden ) in GPE applied for a compulsory care order regarding the applicant pursuant to the provisions of ORG ( lagen om v\u00e5rd av missbrukare i vissa fall , CARDINAL , hereinafter called LAW ) . The committee produced and submitted an investigation report of DATE from which it appeared inter alia that the applicant had been sober for DATE but that during DATE he had often relapsed into serious periodic abuse of alcohol , drinking CARDINAL or three bottles of strong spirits a day . The last period of abuse commenced in DATE with intervals of DATE . During DATE and the first part of DATE the applicant had terminated ongoing treatment for his abuse on several occasions and he had been detoxified CARDINAL times .","The committee invoked CARDINAL medical certificates dated CARDINAL , DATE and DATE DATE respectively , stating , amongst other things , that the applicant declined treatment for his abuse , that there was a risk of psychosis , that his blood pressure had substantially increased due to the abuse causing a risk of acute cerebral bleeding , and that he was in great need of compulsory care under LAW .","In the medical report of CARDINAL DATE it was inter alia stated :","\u201c [ The applicant ] had been known at the clinic since DATE . He had been admitted to the clinic CARDINAL times since DATE . In addition , he had come to the emergency ward several times but had refused to stay . [ The applicant ] was in contact with Dr. PERSON at the psychiatric ward of ORG due to his misuse . [ The applicant ] refused treatment and help . He suffered from high blood pressure , which was substantially increased due to the misuse and caused a risk of acute cerebral bleeding . A test showed signs of liver damage . [ The applicant ] was in a very destructive phase of misuse , he was very aggressive and there was a risk of psychosis . He was in great need of compulsory care under LAW . \u201d","The applicant submitted a medical certificate of DATE stating notably that compulsory care had had no positive effect on him and that it could rather result in a deterioration of his situation .","On DATE ORG ( l\u00e4nsr\u00e4tten ) of GPE held an oral hearing in the presence of the applicant , who opposed the application . He stated that substantial personal setbacks had caused him to resume his abuse . However , his personal situation was stable at the time of the application and he had been sober for DATE at the time of the hearing . He wanted to go to a recreation home in order to eat and do physical exercises .","On DATE ORG ordered his compulsory care for the following reasons :","\u201c Even considering [ the applicant \u2019s ] statement that there has been a break in his abuse prior to the oral hearing , the [ court ] finds that it has been shown that he continuously abuses alcohol and that he is in need of care in order to give up the abuse . It has been ascertained that as a result of the abuse [ the applicant ] exposes his physical and mental health to serious danger . [ The court ] also finds that by the abuse [ the applicant ] imperils his living conditions in other respects ; there is particularly a risk that he will be forced out of the labour market . Consequently , he obviously risks having his life destroyed .","As regards the question whether the need for care can be met according to the [ DATE ORG ] or in any other way , the following is noted . [ The court ] finds that the measure proposed by [ the applicant ] himself , a stay at the recreation home [ GPE ] , obviously can not be considered as the care needed in his circumstances . The facts of the case show that attempted voluntary care has failed because [ the applicant ] has lacked the capacity , and periodically the determination , to undergo care . In view of the history of [ the applicant \u2019s ] abuse and the very serious abuse he has been addicted to since DATE , a shorter period of sobriety can not be considered as having altered the prospects for voluntary care . Nor does [ the court ] find any other reason to believe there are such prospects . In conclusion , [ the court ] finds that even if [ the applicant ] now wants to give up his abuse , the necessary care can not be ensured voluntarily .","For these reasons [ the court ] finds that there are grounds for providing [ the applicant ] with care pursuant to [ LAW ] . The application is therefore granted . The care order shall be immediately enforceable . \u201d","On DATE at CARDINAL the applicant was taken from his home by CARDINAL police officers . It is in dispute whether he was notified that this would occur beforehand . According to the police records it took TIME to bring him to a police custody centre in GPE . Shortly thereafter ORG ( PERSON ) brought him to a so - called ORG institution . On arrival at the ORG institution he was placed in a closed ward for DATE as this was deemed necessary in order for the treatment to commence .","On DATE the social welfare committee proposed in accordance with section CARDINAL of LAW that the applicant be transferred to a care programme at another institution . However , the applicant chose to stay at the ORG institution to begin a programme of the LOC model . He lost interest in the programme after DATE . Thereafter he agreed to a treatment at a care facility centre for alcoholics in the GPE area and he was granted leave for DATE in order to visit the centre . Subsequently , on DATE he absconded .","Having relapsed into drinking , on DATE he returned voluntarily to the ORG institution where he was placed in a closed ward until DATE . He re - absconded DATE latter .","In the meantime the applicant had appealed against the care order . He argued that he would be forced out of the labour market if he was not released from the ORG institution . He further maintained that it was unreasonable that , being a socially stable person , he should undergo expensive and unnecessary care . He was not motivated by the intended care and he considered it degrading . He was shocked to be transferred , allegedly handcuffed , by the police on DATE to ORG .","On DATE ORG ( kammarr\u00e4tten ) in GPE held an oral hearing in the absence of the applicant , who at that time twice had failed to attend as summoned . By judgment of DATE the appellate court upheld the care order , making the same assessment as the lower court .","Subsequently , the applicant several times returned to and was discharged from the ORG institution in order to participate in treatment , which allowed him to stay in his own home at TIME . Thus , he was subject to compulsory care during the periods DATE and DATE , DATE and DATE , and finally between CARDINAL and DATE . Thereafter , he was formally and permanently discharged from the ORG institution .","On DATE the applicant appealed against the judgment of CARDINAL DATE . He invoked the medical certificate dated DATE . On DATE ORG ( Regeringsr\u00e4tten ) refused leave to appeal .","The relevant provisions of LAW read as follows :","Section CARDINAL","\u201c All care intended to help individual persons to discontinue their abuse of alcohol , narcotics or volatile solvents must be guided by the goals of the public services as defined in LAW ORG , CARDINAL ) . Care must be based on respect for the self - determination and privacy of the individual and must as far as possible be designed and conducted in partnership with the individual . \u201d","Section CARDINAL","\u201c Care within the social services is supplied to an abuser on a basis of consensus with him , in accordance with the provisions of LAW . An abuser shall , however , be provided with care regardless of his own consent , subject to conditions defined in this LAW ( compulsory care ) .","The content and design of compulsory care are subject to the provisions of LAW , except where otherwise indicated in this LAW . \u201d","Section CARDINAL","\u201c Compulsory care shall be aimed at motivating the abuser in such a way that he may be presumed capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse . \u201d","Section CARDINAL","\u201c A compulsory care order shall be made if any person , as a result of ongoing abuse of alcohol , narcotics or volatile solvents , is in need of care in order to discontinue his abuse and the necessary care can not be provided under LAW or in any other way and , as a result of the abuse , he","is seriously endangering his physical or mental health .","runs an obvious risk of ruining his life , or","is liable to inflict serious injury on himself or some person closely related to him ... \u201d","Section CARDINAL","\u201c Compulsory care orders are made by ORG . \u201d","Section CARDINAL","\u201c If , following investigation , the social welfare committee finds that there is cause for providing any person with compulsory care , the committee shall apply for such care to ORG .","The application shall be accompanied by the investigation report prepared by the committee , and failing some special impediment , a medical certificate regarding the abuser \u2019s current health status .","The court may order a medical examination if the application does not contain a medical certificate or if an examination is needed for some other reason . \u201d","Section CARDINAL","\u201c Compulsory care is to be terminated as soon as the purpose of the care has been achieved and , at the latest , when it has been in progress for DATE . Care shall be deemed to have commenced when , on account of an immediate care order or compulsory care , the abuser has presented himself at or been taken to an institution as referred to in section CARDINAL or a hospital . Care is terminated by a discharge order under LAW . \u201c","Section CARDINAL","\u201c Compulsory care is provided through residential institutions specially intended for the provisions of care under LAW ( LVM institutions ) . An institution of this kind shall be directed by a board of governors appointed by ORG ( ORG institutionsstyrelse ) ...","Section CARDINAL","\u201c ... Decisions concerning admission to and discharge from an ORG institution are made by the person or body in charge of care at the institution ... \u201d","Section CARDINAL","\u201c The person or body in charge of the care at an ORG institution shall keep the social welfare committee continuously informed of the progress of care and shall consult the committee on all matters of importance ... \u201d","Section CARDINAL","\u201c The person or body in charge of care at an ORG institution shall , as soon as the care schedule permits , make an order for the inmate to be given the opportunity of leaving the ORG institution for some other form of care . \u201d","Section CARDINAL","\u201c If an inmate has resided in an ORG institution for DATE without any other form of care materialising , the person in charge of care shall report this fact to the governing body of the institution and indicate the cause . \u201d","Section CARDINAL","\u201c The social welfare committee shall make effective efforts to ensure that , after the period of care , the individual obtains housing and employment or education , and also to ensure that he receives personal support or treatment for the permanent discontinuation of his abuse . \u201d","Section CARDINAL","\u201c A decision by the person or body in charge of an ORG institution may be contested by the individual person by appeal to ORG if the decision refers to ... rejection of a request for discharge ... \u201d","Section CARDINAL","\u201c The police authority shall render assistance ... at the request of the social committee , to convey a person who is to be provided with care ... to an ORG institution or hospital ... \u201d","The relevant provisions of LAW read as follows :","Section CARDINAL","\u201c Public social services shall , on the basis of democracy and solidarity , promote people \u2019s economic and social security , equality of living conditions and active participation in the life of the community .","With due consideration for the responsibility of the individual for his own social situation and that of others , social services shall be aimed at liberating and developing the innate resources of individuals and groups .","Activities shall be based on respect for people \u2019s self - determination and privacy ... \u201d","Section CARDINAL","\u201c The social welfare committee shall work for the prevention and counteraction of abuse of alcohol and other addictive substances .","The social welfare committee shall , by means of information supplied to authorities , groups and individual persons and through activation measures , disseminate knowledge concerning the harmful effects of abuse and concerning the help available .","The social welfare committee shall actively ensure that the individual substance abuser receives the assistance and care which he needs in order to overcome his abuse . The committee , acting on the basis of consensus with the individual , shall plan the assistance and care and closely monitor compliance with the plan . \u201d","Section CARDINAL of the Social Services Ordinance ( Socialtj\u00e4nstf\u00f6rordningen ) provides that an inmate at an ORG institution may be subjected to care in a closed ward if this is deemed necessary considering the safety of the inmate himself , other inmates or the staff , or if it is found necessary in order to prevent the inmate from absconding or in order to carry out the treatment . Such detention may last for a maximum of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105612","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2011,"docname":"CASE OF AL-JEDDA v. THE UNITED KINGDOM","importance":1,"conclusion":"Violation of Art. 5-1;Non-pecuniary damage - award","judges":"Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Fran\u00e7oise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Luis L\u00f3pez Guerra;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen","text":["The facts of the case may be summarised as follows .","The applicant was born in GPE in DATE . He played for the NORP basketball team until , following his refusal to join ORG , he left GPE in DATE and lived in GPE and GPE . He moved to GPE in DATE , where he made a claim for asylum and was granted indefinite leave to remain . He was granted NORP nationality in DATE .","In DATE the applicant and his CARDINAL eldest children travelled from GPE to GPE , via GPE . He was arrested and questioned in GPE by GPE intelligence officers , who released him after TIME , permitting him and his children to continue their journey to GPE , where they arrived on DATE . On DATE GPE soldiers , apparently acting on information provided by the NORP intelligence services , arrested the applicant at his sister \u2019s house in GPE . He was taken to GPE in a NORP military aircraft and then to the Sha\u2019aibah ORG in GPE , a detention centre run by NORP forces . He was held in internment there until DATE .","The applicant was held on the basis that his internment was necessary for imperative reasons of security in GPE . He was believed by the NORP authorities to have been personally responsible for recruiting terrorists outside GPE with a view to the commission of atrocities there ; for facilitating the travel into GPE of an identified terrorist explosives expert ; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against ORG in the areas around GPE and GPE ; and for conspiring with the explosives expert and members of an NORP terrorist cell in the LOC to smuggle high - tech detonation equipment into GPE for use in attacks against ORG . No criminal charges were brought against him .","NORP The applicant \u2019s internment was initially authorised by the senior officer in the detention facility . Reviews were conducted DATE and DATE by ORG ( ORG ) . This comprised the senior officer in the detention facility and army legal and military personnel . Owing to the sensitivity of the intelligence material upon which the applicant \u2019s arrest and detention had been based , CARDINAL members of the ORG were permitted to examine it . Their recommendations were passed to the Commander of ORG ( LOC ) ( \u201c the Commander \u201d ) , who himself examined the intelligence file on the applicant and took the decision to continue the internment . DATE a DATE review was carried out by the Commander , on the basis of the recommendations of the ORG . DATE and DATE the decision to intern the applicant was taken by the ORG itself , which , during this period , included as members the Commander together with members of the legal , intelligence and other army staffs . There was no procedure for disclosure of evidence or for an oral hearing , but representations could be made by the internee in writing which were considered by the legal branch and put before the ORG for consideration . The CARDINAL Commanders who authorised the applicant \u2019s internment in DATE and DATE gave evidence to the domestic courts that there was a substantial weight of intelligence material indicating that there were reasonable grounds for suspecting the applicant of the matters alleged against him .","When the applicant had been detained for DATE , the internment fell to be reviewed by ORG ( ORG ) . This body included senior representatives of ORG , the NORP interim government and the ambassador for GPE . It met once and thereafter delegated powers to ORG , which comprised NORP representatives and officers from ORG .","On DATE the Secretary of ORG signed an order depriving the applicant of NORP citizenship , on the ground that it was conducive to the public good . The Secretary of ORG claimed , inter alia , that the applicant had connections with violent NORP groups , in GPE and elsewhere , and had been responsible for recruiting terrorists outside GPE and facilitating their travel and the smuggling of bomb parts into GPE .","The applicant was released from internment on DATE and travelled to GPE . He appealed against the deprivation of his NORP citizenship . On DATE ORG dismissed his appeal , having heard both open and closed evidence , during a hearing where the applicant was represented by special advocates ( see , further , NORP and Others v. GPE [ ORG ] , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL , ECHR DATE ) . ORG held that , for reasons set out in detail in a closed judgment , it was satisfied on the balance of probabilities that the Secretary of ORG had proved that the applicant had facilitated the travel to GPE of a terrorist explosives expert and conspired with him to smuggle explosives into GPE and to conduct improvised explosive device attacks against ORG around GPE and GPE . The applicant did not appeal against the judgment .","On DATE the applicant brought a judicial review claim in GPE , challenging the lawfulness of his continued detention and also the refusal of the Secretary of ORG to return him to GPE . The Secretary of ORG accepted that the applicant \u2019s detention within a NORP military facility brought him within the jurisdiction of GPE under LAW . He also accepted that the detention did not fall within any of the permitted cases set out in LAW . However , the Secretary of ORG contended that LAW did not apply to the applicant because his detention was authorised by ORG DATE ( see paragraph CARDINAL below ) and that , as a matter of international law , the effect of the ORG was to displace LAW . He also denied that his refusal to return the applicant to GPE was unreasonable . It was argued on behalf of the applicant that LAW ( see paragraph CARDINAL below ) had no application since , inter alia , Resolution CARDINAL placed no obligation on GPE and\/or since LAW placed an obligation on member GPE to protect human rights .","Both ORG in its judgment of CARDINAL DATE and ORG in its judgment of DATE unanimously held that ORG CARDINAL explicitly authorised ORG to take all necessary measures to contribute to the maintenance of security and stability in GPE , in accordance with the annexed letter from the GPE Secretary of ORG . By the practice of the member ORG , a ORG which acted under such an authority was treated as having agreed to carry out the ORG for the purposes of LAW and as being bound by it for the purposes of LAW ( see paragraph CARDINAL below ) . GPE obligation under LAW therefore took precedence over its obligations under the LAW . ORG also held that , under LAW of LAW DATE , since the applicant was detained in GPE , the law governing his claim for damages for false imprisonment was NORP law ( see NORP ( on the application of PERSON ) v. Secretary of ORG [ DATE ] DATE ( Admin ) ; [ DATE ] EWCA Civ CARDINAL )","The applicant appealed to ORG ( Lord PERSON of GPE , Lord PERSON of PERSON , ORG of GPE , Lord ORG and Lord PERSON of ORG - under - Heywood : see PERSON ( on the application of PERSON ) ( ORG ) ( Appellant ) v. Secretary of ORG ) [ DATE ] ORG DATE ) . The Secretary of ORG raised a new argument before ORG , claiming that by virtue of ORG and DATE the detention of the applicant was attributable to ORG and was thus outside the scope of the Convention . Lord PERSON introduced the attribution issue as follows :","\u201c CARDINAL . It was common ground between the parties that the governing principle is that expressed by ORG in DATE ORG on ORG ... \u201d","He referred to the ORG \u2019s reasoning in PERSON v. GPE and GPE v. GPE , GPE and GPE ( ( dec . ) [ ORG ] , nos . CARDINAL and GPE , DATE ) ( hereinafter \u201c Behrami and Saramati \u201d ) and to the factual situation in GPE at the relevant time and continued :","\u201c CARDINAL . Against the factual background described above a number of questions must be asked in the present case . Were GPE forces placed at the disposal of the ORG ? Did the ORG exercise effective control over the conduct of GPE forces ? Is the specific conduct of the GPE forces in detaining the appellant to be attributed to the ORG rather than the GPE ? Did the ORG have effective command and control over the conduct of GPE forces when they detained the appellant ? Were the GPE forces part of a ORG peacekeeping force in GPE ? In my opinion the answer to all these questions is in the negative .","The ORG did not dispatch ORG to GPE . The CPA [ Coalition Provisional Authority ] was established by GPE , notably the GPE , not the ORG . When ORG became Occupying Powers in GPE they had no ORG mandate . Thus when the case of Mr PERSON reached the ORG [ of ORG ] as one of those considered in NORP ( PERSON and Others ) v. Secretary of ORG ) ( ORG intervening ) [ DATE ] UKHL CARDINAL , [ DATE ] CARDINAL WLR CARDINAL the Secretary of ORG accepted that the GPE was liable under LAW for any ill - treatment Mr PERSON suffered , while unsuccessfully denying liability under LAW DATE . It has not , to my knowledge , been suggested that the treatment of detainees at FAC was attributable to the ORG rather than the GPE . Following ORG [ ORG ] DATE in DATE the role of the ORG was a limited one focused on humanitarian relief and reconstruction , a role strengthened but not fundamentally altered by UNSCR CARDINAL in DATE . By ORG , and again by UNSCR CARDINAL in DATE , the ORG gave ORG express authority to take steps to promote security and stability in GPE , but ( adopting the distinction formulated by ORG in paragraph CARDINAL of its judgment in ORG was not delegating its power by empowering the GPE to exercise its function but was authorising the GPE to carry out functions it could not perform itself . At no time did the GPE or the GPE disclaim responsibility for the conduct of their forces or the ORG accept it . It can not realistically be said that GPE and GPE forces were under the effective command and control of the ORG , or that GPE forces were under such command and control when they detained the appellant .","The analogy with the situation in GPE breaks down , in my opinion , at almost every point . The international security and civil presences in GPE were established at the express behest of the ORG and operated under its auspices , with UNMIK [ ORG in GPE ] a subsidiary organ of the ORG . ORG in GPE was not established at the behest of the ORG , was not mandated to operate under ORG auspices and was not a subsidiary organ of the ORG . There was no delegation of ORG power in GPE . It is quite true that duties to report were imposed in GPE as in GPE . But the ORG \u2019s proper concern for the protection of human rights and observance of humanitarian law called for no less , and it is CARDINAL thing to receive reports , another to exercise effective command and control . It does not seem to me significant that in each case the ORG reserved power to revoke its authority , since it could clearly do so whether or not it reserved power to do so .","I would resolve this first issue in favour of the appellant and against the Secretary of ORG . \u201d","ORG observed in this connection :","\u201c CARDINAL . ... I agree with [ Lord PERSON ] that the analogy with the situation in GPE breaks down at almost every point . ORG made submissions to ORG in GPE v. GPE , GPE v. GPE , GPE and GPE ... concerning the respective roles of UNMIK [ ORG in GPE ] and ORG [ ORG - led ORG ] in clearing mines , which was the subject of the Behrami [ and ORG ] case . It did not deny that these were ORG operations for which the ORG might be responsible . It seems to me unlikely in the extreme that ORG would accept that the acts of the [ ORG ] were in any way attributable to the ORG . My noble and learned friend , Lord PERSON of ORG - under - Heywood , has put his finger on the essential distinction . The ORG \u2019s own role in GPE was completely different from its role in GPE . Its concern in GPE was for the protection of human rights and the observance of humanitarian law as well [ as ] to protect its own humanitarian operations there . It looked to others to restore the peace and security which had broken down in the aftermath of events for which those others were responsible . \u201d","Lord PERSON similarly agreed with Lord PERSON on this issue ( \u00a7 CARDINAL ) . Lord PERSON also distinguished the situation in GPE from that in GPE , as follows :","\u201c CARDINAL . To my mind it follows that any material distinction between the CARDINAL cases must be found ... in the very circumstances in which the [ ORG ] came to be authorised and mandated in the first place . The delegation to ORG [ ORG - led ORG ] of the ORG \u2019s function of maintaining security was , the ORG observed [ in PERSON and PERSON ] , \u2018 neither presumed nor implicit but rather prior and explicit in ORG . Resolution CARDINAL decided ( paragraph CARDINAL ) \u2018 on the deployment in GPE , under ORG auspices , of international civil and security ORG \u2013 the civil presence being UNMIK [ ORG in GPE ] , recognised by ORG in PERSON [ and ORG ] ( paragraph CARDINAL ) as \u2018 a subsidiary organ of the UN\u2019 ; the security presence being ORG . PERSON was , therefore , expressly formed under ORG auspices . Paragraph CARDINAL of the ORG \u2018 [ a]uthorise[d ] member ORG and relevant international organisations to establish the international security presence in GPE as set out in point CARDINAL of CARDINAL ... \u2019 . CARDINAL of FAC stated : \u2018 The international security presence with substantial ORG participation must be deployed under unified command and control and authorised to establish a safe environment for all people in GPE and to facilitate the safe return to their homes of all displaced persons and refugees.\u2019","Resolution CARDINAL , by contrast , was adopted on DATE during the GPE \u2019s and GPE \u2019s post - combat occupation of GPE and in effect gave recognition to those occupying forces as an existing security presence . ...","...","Nor did the position change when Resolution CARDINAL was adopted on DATE , DATE before the end of the occupation and the transfer of authority from the CPA [ ORG ] to the interim government of GPE on DATE . ... Nothing either in the ORG [ CARDINAL ] itself or in the letters annexed suggested for a moment that the [ ORG ] had been under or was now being transferred to ORG authority and control . True , the [ ORG ] was acting throughout under LAW [ of ORG ] . But it does not follow that the ORG is therefore to be regarded as having assumed ultimate authority or control over the ORG . The precise meaning of the term \u2018 ultimate authority and control\u2019 I have found somewhat elusive . But it can not automatically vest or remain in the ORG every time there is an authorisation of ORG powers under LAW , else much of the analysis in Behrami [ and ORG ] would be mere surplusage . \u201d","Lord PERSON dissented on this point . He found that the legal basis on which the members of ORG ( ORG ) were operating in GPE could not be distinguished from that on which NORP forces in ORG were operating during the period of the applicant \u2019s internment . He explained his views as follows :","\u201c CARDINAL . There is an obvious difference between the factual position in GPE that lay behind the Behrami [ and ORG ] case and the factual position in GPE that lies behind the present case . The forces making up ORG went into GPE , for the first time , as members of ORG and in terms of ORG . By contrast , ORG were in GPE and , indeed , in occupation of GPE , for DATE before ORG adopted Resolution CARDINAL , authorising the creation of the [ ORG ] , on DATE .","...","It respectfully appears to me that the mere fact that Resolution CARDINAL was adopted before the forces making up ORG entered GPE was legally irrelevant to the issue in PERSON [ and ORG ] . What mattered was that LAW had been adopted before the NORP members of ORG detained Mr Saramati . So the Resolution regulated the legal position at the time of his detention . Equally , in the present case , the fact that the NORP and other ORG were in GPE long before Resolution CARDINAL was adopted is legally irrelevant for present purposes . What matters is that Resolution CARDINAL was adopted before the NORP forces detained the appellant and so it regulated the legal position at that time . As renewed , the provisions of that ORG have continued to do so ever since .","...","If CARDINAL compares the terms of CARDINAL and Resolution CARDINAL , for present purposes there appears to be no relevant legal difference between the CARDINAL Forces . Of course , in the case of GPE , there was no civil administration and there were no bodies of troops already assembled in GPE whom ORG could authorise to assume the necessary responsibilities . In paragraph CARDINAL of Resolution CARDINAL the ORG accordingly decided \u2018 on the deployment in GPE , under ORG auspices , of international civil and security ORG . Because there were no suitable troops on the ground , in paragraph CARDINAL of Resolution CARDINAL the ORG had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities .","By contrast , in DATE , in GPE there were already forces in place , especially NORP and NORP forces , whom ORG could authorise to assume the necessary responsibilities . So it did not need to authorise the establishment of the [ ORG ] . In paragraph CARDINAL the ORG simply authorised \u2018 a ORG under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq\u2019 \u2013 thereby proceeding on the basis that there would indeed be a ORG under unified command . In paragraph CARDINAL the ORG urged member ORG to contribute forces to the [ ORG ] . Absolutely crucially , however , in paragraph CARDINAL it spelled out the mandate which it was giving to the [ ORG ] . By \u2018 ORG the [ ORG ] to take the measures required to fulfil its \u2018 mandate\u2019 , the ORG was asserting and exercising control over the [ ORG ] and was prescribing the mission that it was to carry out . The authorisation and mandate were to apply to all members of the [ ORG ] \u2013 the NORP and NORP , of course , but also those from member GPE who responded to the ORG \u2019s call to contribute forces to the [ ORG ] . The intention must have been that all would be in the same legal position . This confirms DATE as I have already held , at paragraph DATE the fact that the NORP forces were in GPE before Resolution CARDINAL was adopted is irrelevant to their legal position under that ORG and , indeed , under LAW . \u201d","The second issue before ORG was whether the provisions of LAW were qualified by the legal regime established pursuant to ORG DATE and subsequent resolutions . On this point , ORG unanimously held that LAW gave primacy to resolutions of ORG , even in relation to human rights agreements . Lord PERSON , with whom the other ORG agreed , explained :","\u201c CARDINAL . ... while the Secretary of ORG contends that the LAW [ of ORG ] , and UNSCRs [ ORG ] CARDINAL ( DATE ) , DATE ) , CARDINAL ( DATE ) and DATE ( DATE ) , impose an obligation on the GPE to detain the appellant which prevails over the appellant \u2019s conflicting right under LAW of LAW , the appellant insists that the UNSCRs referred to , read in the light of the LAW , at most authorise the GPE to take action to detain him but do not oblige it to do so , with the result that no conflict arises and LAW of the LAW ] is not engaged .","There is an obvious attraction in the appellant \u2019s argument since , as appears from the summaries of UNSCRs CARDINAL and DATE given above in paragraphs CARDINAL , the Resolutions use the language of authorisation , not obligation , and the same usage is found in UNSCRs CARDINAL ( DATE ) and DATE ( DATE ) . In ordinary speech to authorise is to permit or allow or license , not to require or oblige . I am , however , persuaded that the appellant \u2019s argument is not sound , for CARDINAL main reasons .","First , it appears to me that during the period when the GPE was an ORG ( from the cessation of hostilities on DATE to the transfer of power to the NORP interim government on DATE ) it was obliged , in the area which it effectively occupied , to take necessary measures to protect the safety of the public and its own safety . [ Lord PERSON here referred to LAW , DATE and CARDINAL of LAW ( IV ) relative to ORG in Time of War : for the text of these Articles , see paragraphs CARDINAL and CARDINAL of this judgment below . ]","These CARDINAL Articles are designed to circumscribe the sanctions which may be applied to protected persons , and they have no direct application to the appellant , who is not a protected person . But they show plainly that there is a power to intern persons who are not protected persons , and it would seem to me that if the Occupying Power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the Occupying Power there must be an obligation to detain such a person : see the decision of ORG in Armed Activities on the Territory of the GPE ( Democratic Republic of the GPE v. GPE ) [ DATE ] ICJ Reports CARDINAL , paragraph CARDINAL . This is a matter of some importance , since although the appellant was not detained during the period of the occupation , both the evidence and the language of UNSCR CARDINAL ( CARDINAL ) and the later Resolutions strongly suggest that the intention was to continue the pre - existing security regime and not to change it . There is not said to have been such an improvement in local security conditions as would have justified any relaxation .","There are , secondly , some situations in which ORG can adopt resolutions couched in mandatory terms . CARDINAL example is UNSCR CARDINAL ( DATE ) , considered by ORG ( with reference to an ORG regulation giving effect to it ) in GPE PERSON ve PERSON v. GPE [ [ ORG ] , no . CARDINAL , ORG CARDINAL-VI ] ( DATE ) CARDINAL EHRR CARDINAL , which decided in paragraph CARDINAL that \u2018 all GPE shall impound all vessels , freight vehicles , rolling stock and aircraft in their territories ... \u2019 . Such provisions cause no difficulty in principle , since member ORG can comply with them within their own borders and are bound by LAW to comply . But language of this kind can not be used in relation to military or security operations overseas , since the ORG and ORG have no standing forces at their own disposal and have concluded no agreements under LAW of the LAW which entitle them to call on member GPE to provide them . Thus in practice ORG can do little more than give its authorisation to member GPE which are willing to conduct such tasks , and this is what ( as I understand ) it has done for DATE . Even in UNSCR CARDINAL ( DATE ) relating to GPE , when ( as I have concluded ) the operations were very clearly conducted under ORG auspices , the language of authorisation was used . There is , however , a strong and to my mind persuasive body of academic opinion which would treat LAW as applicable where conduct is authorised by ORG as where it is required : see , for example , ORG and PERSON ( eds . ) , Charter of ORG : Commentary and Documents , CARDINALrd edn . ( DATE ) , pp . CARDINAL - CARDINAL ; ORG ( DATE ) , PERSON . II , Part CARDINAL , paragraph CARDINAL ; ORG , ORG and ORG ( DATE ) , pp . CARDINAL . The most recent and perhaps clearest opinion on the subject is that of GPE and GPE in PERSON ( ed . ) , The Charter of ORG : A Commentary , DATE . DATE ) , p. CARDINAL :","\u2018 Such authorisations , however , create difficulties with respect to LAW . According to the latter provision , LAW and thus also GPE [ ORG ] Resolutions \u2013 override existing international law only in so far as they create \u201c obligations \u201d ( cf . GPE on LAW seq . ) . One could conclude that in case a ORG is not obliged but merely authorised to take action , it remains bound by its conventional obligations . Such a result , however , would not seem to correspond with ORG practice at least as regards authorisations of military action . These authorisations have not been opposed on the ground of conflicting treaty obligations , and if they could be opposed on this basis , the very idea of authorisations as a necessary substitute for direct action by the ORG would be compromised . Thus , the interpretation of LAW should be reconciled with that of LAW , and the prevalence over treaty obligations should be recognised for the authorisation of military action as well ( see ORG on Article CARDINAL MN CARDINAL ) . The same conclusion seems warranted with respect to authorisations of economic measures under Article CARDINAL . Otherwise , the Charter would not reach its goal of allowing the ORG to take the action it deems most appropriate to deal with threats to the peace \u2013 it would force the ORG to act either by way of binding measures or by way of recommendations , but would not permit intermediate forms of action . This would deprive the GPE of much of the flexibility it is supposed to enjoy . It seems therefore preferable to apply the rule of LAW to all action under ORG CARDINAL and DATE and not only to mandatory measures.\u2019","This approach seems to me to give a purposive interpretation to LAW , in the context of its other provisions , and to reflect the practice of the ORG and member GPE as it has developed over DATE .","I am further of the opinion , thirdly , that in a situation such as the present \u2018 ORG in Article CARDINAL should not in any event be given a narrow , contract - based , meaning . The importance of maintaining peace and security in the world can scarcely be exaggerated , and that ( as evident from the Articles of the Charter quoted above ) is the mission of the ORG . Its involvement in GPE was directed to that end , following repeated determinations that the situation in GPE continued to constitute a threat to international peace and security . As is well known , a large majority of GPE chose not to contribute to ORG , but those which did ( including the GPE ) became bound by LAW and DATE to carry out the decisions of ORG in accordance with the LAW so as to achieve its lawful objectives . It is of course true that the GPE did not become specifically bound to detain the appellant in particular . But it was , I think , bound to exercise its power of detention where this was necessary for imperative reasons of security . It could not be said to be giving effect to the decisions of ORG if , in such a situation , it neglected to take steps which were open to it .","Emphasis has often been laid on the special character of LAW as a human rights instrument . But the reference in LAW to \u2018 any other international agreement\u2019 leaves no room for any excepted category , and such appears to be the consensus of learned opinion . The decision of ORG ( Questions of Interpretation and Application of the DATE LAW from the GPE incident at GPE ( NORP Arab GPE v. GPE ) [ DATE ] ICJ Reports CARDINAL , paragraph CARDINAL , and ORG of ORG [ DATE ] ICJ Reports CARDINAL , DATE , paragraphs CARDINAL per Judge ad hoc Lauterpacht ) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge PERSON it now seems to be generally recognised in practice that binding ORG decisions taken under LAW supersede all other treaty commitments ( The LAW of ORG : A Commentary , DATE . , ed PERSON , [ DATE , ] pp . DATE ) . \u201d","Lord PERSON concluded on this issue :","\u201c DATE . Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of ORG and , on the other , a fundamental human right which the GPE has undertaken to secure to those ( like the appellant ) within its jurisdiction . How are these to be reconciled ? There is in my opinion only one way in which they can be reconciled : by ruling that the GPE may lawfully , where it is necessary for imperative reasons of security , exercise the power to detain authorised by ORG [ ORG ] CARDINAL and successive resolutions , but must ensure that the detainee \u2019s rights under LAW are not infringed to any greater extent than is inherent in such detention . I would resolve the second issue in this sense . \u201d","Baroness PERSON commenced by observing :","\u201c CARDINAL . ... There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of GPE . Nor could it be permitted without derogation from our obligations under LAW . Article LAW provides that deprivation of liberty is only lawful in defined circumstances which do not include these . The drafters of the LAW had a choice between a general prohibition of \u2018 GPE detention , as provided in LAW , and a list of permitted grounds for detention . They deliberately chose the latter . They were well aware of PERSON \u2019s view that the internment even of enemy aliens in war time was \u2018 in the highest degree odious\u2019 . They would not have contemplated the indefinite detention without trial of NORP citizens in peacetime . I do not accept that this is less of a problem if people are suspected of very grave crimes . The graver the crime of which a person is suspected , the more difficult it will be for him to secure his release on the grounds that he is not a risk . The longer therefore he is likely to be incarcerated and the less substantial the evidence which will be relied upon to prove suspicion . These are the people most in need of the protection of the rule of law , rather than the small fry in whom the authorities will soon lose interest . \u201d","ORG agreed with Lord PERSON that the Convention rights could be qualified by \u201c competing commitments under LAW \u201d , but continued :","\u201c CARDINAL . That is , however , as far as I would go . The right is qualified but not displaced . This is an important distinction , insufficiently explored in the all or nothing arguments with which we were presented . We can go no further than the ORG has implicitly required us to go in restoring peace and security to a troubled land . The right is qualified only to the extent required or authorised by the ORG . What remains of it thereafter must be observed . This may have both substantive and procedural consequences .","It is not clear to me how far ORG [ ORG ] Resolution CARDINAL went when it authorised the [ ORG ] to \u2018 take all necessary measures to contribute to the maintenance of security and stability in GPE , in accordance with the letters annexed to this Resolution expressing , inter alia , the NORP request for the continued presence of ORG and setting out its ORG ( paragraph CARDINAL ) . The \u2018 broad range of ORG were listed by Secretary of ORG PERSON as including \u2018 combat operations against members of these groups [ seeking to influence GPE \u2019s political future through violence ] , internment where this is necessary for imperative reasons of security , and the continued search for and securing of weapons that threaten GPE \u2019s NORP . At the same time , the Secretary of ORG made clear the commitment of the forces which made up the ORG [ ORG ] to \u2018 act consistently with their obligations under the law of armed conflict , including LAW .","NORP On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict ? He is not a \u2018 protected person\u2019 under the Fourth Geneva Convention because he is one of our own citizens . Nor is the GPE any longer in belligerent occupation of any part of GPE . So resort must be had to some sort of post - conflict , post - occupation , analogous power to intern anyone where this is thought \u2018 necessary for imperative reasons of NORP . Even if ORG can be read in this way , it is not immediately obvious why the prolonged detention of this person in GPE is necessary , given that any problem he presents in GPE could be solved by repatriating him to this country and dealing with him here . If we stand back a little from the particular circumstances of this case , this is the response which is so often urged when NORP people are in trouble with the law in foreign countries , and in this case it is within the power of the NORP authorities to achieve it .","But that is not the way in which the argument has been conducted before us . Why else could Lord PERSON and Lord PERSON speak of \u2018 displacing or ORG in CARDINAL breath when clearly they mean very different things ? We have been concerned at a more abstract level with attribution to or authorisation by ORG . We have devoted little attention to the precise scope of the authorisation . There must still be room for argument about what precisely is covered by the ORG and whether it applies on the facts of this case . Quite how that is to be done remains for decision in the other proceedings . With that caveat , therefore , but otherwise in agreement with Lord PERSON , Lord PERSON and Lord PERSON , I would dismiss this appeal . \u201d","Lord PERSON started his speech by observing :","\u201c CARDINAL . Internment without trial is so antithetical to the rule of law as understood in a democratic society that recourse to it requires to be carefully scrutinised by the courts of that society . There are , regrettably , circumstances in which the threat to the necessary stability of the ORG is so great that in order to maintain that stability the use of internment is unavoidable . The Secretary of ORG \u2019s contention is that such circumstances exist now in GPE and have existed there since the conclusion of hostilities in DATE . If the intelligence concerning the danger posed by such persons is correct , \u2013 as to which your Lordships are not in a position to make any judgment and do not do so \u2013 they pose a real danger to stability and progress in GPE . If sufficient evidence can not be produced in criminal proceedings \u2013 which again the ORG [ of ORG ] has not been asked to and can not judge DATE such persons may have to be detained without trial . LAW permits the ordering of internment of protected persons \u2018 only if the security of the Detaining Power makes it absolutely ORG , and under LAW must consider that step necessary \u2018 for imperative reasons of NORP . Neither of these provisions applies directly to the appellant , who is not a protected person , but the degree of necessity which should exist before the Secretary of ORG detains persons in his position \u2013 if he has power to do so , as in my opinion he has DATE is substantially the same . I would only express the opinion that where a ORG can lawfully intern people , it is important that it adopt certain safeguards : the compilation of intelligence about such persons which is as accurate and reliable as possible , the regular review of the continuing need to detain each person and a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons , so far as is practicable and consistent with the needs of national security and the safety of other persons . \u201d","He continued :","\u201c CARDINAL . It was argued on behalf of the appellant that the ORG did not go further than authorising the measures described in it , as distinct from imposing an obligation to carry them out , with the consequence that LAW [ of ORG ] did not apply to relieve GPE from observing the terms of LAW . This was an attractive and persuasively presented argument , but I am satisfied that it can not succeed . For the reasons set out in DATE of Lord PERSON \u2019s opinion I consider that Resolution CARDINAL did operate to impose an obligation upon GPE to carry out those measures . In particular , I am persuaded by ORG practice and the clear statements of authoritative academic opinion \u2013 recognised sources of international law \u2013 that expressions in ORG resolutions which appear on their face to confer no more than authority or power to carry out measures may take effect as imposing obligations , because of the fact that ORG have no standing forces at their own disposal and have concluded no agreements under LAW which would entitle them to call on member GPE to provide them .","I accordingly am of [ the ] opinion that GPE may lawfully , where it is necessary for imperative reasons of security , exercise the power to intern conferred by LAW . I would emphasise , however , that that power has to be exercised in such a way as to minimise the infringements of the detainee \u2019s rights under LAW , in particular by adopting and operating to the fullest practicable extent safeguards of the nature of those to which I referred in paragraph CARDINAL above . \u201d","Following ORG ruling on the applicable legal regime ( see paragraph CARDINAL above ) , which was upheld by ORG , the applicant brought a claim for damages in the NORP courts claiming that , from CARDINAL DATE , his detention without judicial review was unlawful under the terms of LAW , which came into force on DATE ( see paragraph CARDINAL below ) .","This claim was finally determined by ORG in a judgment dated DATE ( [ DATE ] EWCA Civ CARDINAL ) . The majority found that , in the circumstances , the review procedure under Coalition Provisional Authority Memorandum No . CARDINAL ( Revised ) ( see paragraph CARDINAL below ) provided sufficient guarantees of fairness and independence to comply with NORP law .","On DATE ORG , acting under LAW , adopted Resolution CARDINAL . The ORG decided , inter alia , that GPE had been and remained in material breach of its obligations under previous ORG resolutions to disarm and to cooperate with ORG and ORG weapons inspectors . Resolution CARDINAL decided to afford GPE a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime . It requested the Secretary - General of ORG immediately to notify GPE of the ORG and demanded that GPE cooperate immediately , unconditionally , and actively with the inspectors . Resolution CARDINAL concluded by recalling that ORG had \u201c repeatedly warned GPE that it w[ould ] face serious consequences as a result of its continued violations of its obligations \u201d . ORG decided to remain seised of the matter .","On DATE a Coalition of armed forces under unified command , led by GPE with a large force from GPE and small contingents from GPE , GPE and GPE , commenced the invasion of GPE . By DATE the NORP had captured GPE and by DATE GPE troops had gained control of GPE . Major combat operations in GPE were declared complete on DATE . Thereafter , other GPE sent troops to help with the reconstruction efforts in GPE .","On DATE ORG of GPE and GPE at ORG addressed a joint letter to the President of ORG , which read as follows :","\u201c GPE , GPE and GPE and Coalition partners continue to act together to ensure the complete disarmament of GPE of weapons of mass destruction and means of delivery in accordance with ORG . The ORG participating in the Coalition will strictly abide by their obligations under international law , including those relating to the essential humanitarian needs of the people of GPE . ...","In order to meet these objectives and obligations in the post - conflict period in GPE , GPE , GPE partners , acting under existing command and control arrangements through ORG , have created ORG , which includes ORG , to exercise powers of government temporarily , and , as necessary , especially to provide security , to allow the delivery of humanitarian aid , and to eliminate weapons of mass destruction .","GPE , GPE partners , working through ORG , shall , inter alia , provide for security in and for the provisional administration of GPE , including by : deterring hostilities ; ... maintaining civil law and order , including through encouraging international efforts to rebuild the capacity of the NORP civilian police force ; eliminating all terrorist infrastructure and resources within GPE and working to ensure that terrorists and terrorist groups are denied safe haven ; ... and assuming immediate control of NORP institutions responsible for military and security matters and providing , as appropriate , for the demilitarisation , demobilisation , control , command , reformation , disestablishment , or reorganisation of those institutions so that they no longer pose a threat to the NORP people or international peace and security but will be capable of defending GPE \u2019s sovereignty and territorial integrity .","...","ORG has a vital role to play in providing humanitarian relief , in supporting the reconstruction of GPE , and in helping in the formation of an NORP interim authority . GPE , GPE partners are ready to work closely with representatives of ORG and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary - General . We also welcome the support and contributions of member GPE , international and regional organisations , and other entities , under appropriate coordination arrangements with ORG .","We would be grateful if you could arrange for the present letter to be circulated as a document of ORG .","( Signed ) PERSON Permanent Representative of GPE","( Signed ) PERSON Permanent Representative of the GPE \u201d","As mentioned in the above letter , the occupying GPE , acting through ORG , created ORG ) to act as a \u201c caretaker administration \u201d until an NORP government could be established . It had power , inter alia , to issue legislation . On DATE the GPE Secretary of Defence , PERSON , issued a memorandum formally appointing Ambassador PERSON as Administrator of the CPA with responsibility for the temporary governance of GPE . In CPA Regulation No . CARDINAL , dated DATE , Ambassador PERSON provided , inter alia , that the CPA \u201c shall exercise powers of government temporarily in order to provide for the effective administration of GPE during the period of transitional administration \u201d and that :","\u201c CARDINAL . The CPA is vested with all executive , legislative and judicial authority necessary to achieve its objectives , to be exercised under relevant ORG resolutions , including LAW ( DATE ) , and the laws and usages of war . This authority shall be exercised by the CPA Administrator .","As the Commander of Coalition Forces , the Commander of ORG shall directly support the CPA by deterring hostilities ; maintaining GPE \u2019s territorial integrity and security ; searching for , securing and destroying weapons of mass destruction ; and assisting in carrying out Coalition policy generally . \u201d","The CPA administration was divided into regional areas . CPA LOC was placed under GPE responsibility and control , with a ORG . It covered the southernmost CARDINAL of GPE \u2019s CARDINAL provinces , each having a governorate coordinator . GPE troops were deployed in the same area .","United Nations Security Council Resolution DATE referred to by Ambassador PERSON in CPA Regulation No . CARDINAL was actually adopted DATE , on CARDINAL DATE . It provided as follows :","\u201c ORG ,","Recalling all its previous relevant resolutions ,","...","Resolved that ORG should play a vital role in humanitarian relief , the reconstruction of GPE , and the restoration and establishment of national and local institutions for representative governance ,","...","Welcoming also the resumption of humanitarian assistance and the continuing efforts of the Secretary - General and the specialised agencies to provide food and medicine to the people of GPE ,","Welcoming the appointment by the Secretary - General of his Special Adviser on GPE ,","...","Noting the letter of CARDINAL DATE from ORG GPE and GPE and GPE to the President of ORG ( S\/CARDINAL\/CARDINAL ) and recognising the specific authorities , responsibilities , and obligations under applicable international law of GPE under unified command ( the \u2018 Authority\u2019 ) ,","Noting further that other GPE that are not Occupying Powers are working now or in the future may work under the ORG ,","Welcoming further the willingness of member GPE to contribute to stability and security in GPE by contributing personnel , equipment , and other resources under the ORG ,","...","Determining that the situation in GPE , although improved , continues to constitute a threat to international peace and security ,","Acting under LAW of ORG ,","Appeals to member GPE and concerned organisations to assist the people of GPE in their efforts to reform their institutions and rebuild their country , and to contribute to conditions of stability and security in GPE in accordance with this Resolution ;","Calls upon all member ORG in a position to do so to respond immediately to the humanitarian appeals of ORG and other international organisations for GPE and to help meet the humanitarian and other needs of the NORP people by providing food , medical supplies , and resources necessary for reconstruction and rehabilitation of GPE \u2019s economic infrastructure ;","...","Calls upon the ORG , consistent with LAW and other relevant international law , to promote the welfare of the NORP people through the effective administration of the territory , including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the NORP people can freely determine their own political future ;","Calls upon all concerned to comply fully with their obligations under international law including in particular LAW of DATE and LAW of DATE ;","...","NORP Requests the Secretary - General to appoint a ORG for GPE whose independent responsibilities shall involve reporting regularly to the ORG on his activities under this ORG , coordinating activities of ORG in post - conflict processes in GPE , coordinating among ORG and international agencies engaged in humanitarian assistance and reconstruction activities in GPE , and , in coordination with the ORG , assisting the people of GPE through :","( a ) coordinating humanitarian and reconstruction assistance by ORG agencies and between ORG agencies and non - governmental organisations ;","( b ) promoting the safe , orderly , and voluntary return of refugees and displaced persons ;","( c ) working intensively with the ORG , the people of GPE , and others concerned to advance efforts to restore and establish national and local institutions for representative governance , including by working together to facilitate a process leading to an internationally recognised , representative government of GPE ;","( d ) facilitating the reconstruction of key infrastructure , in cooperation with other international organisations ;","( e ) NORP promoting economic reconstruction and the conditions for sustainable development , including through coordination with national and regional organisations , as appropriate , civil society , donors , and the international financial institutions ;","( f ) encouraging international efforts to contribute to basic civilian administration functions ;","( g ) promoting the protection of human rights ;","( h ) encouraging international efforts to rebuild the capacity of the NORP civilian police force ; and","( i ) encouraging international efforts to promote legal and judicial reform ;","...","NORP Requests the Secretary - General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of ORG and encourages GPE and GPE and GPE to inform the ORG at regular intervals of their efforts under this ORG ;","Decides to review the implementation of this ORG within DATE of adoption and to consider further steps that might be necessary .","Calls upon member GPE and international and regional organisations to contribute to the implementation of this ORG ;","Decides to remain seised of this matter . \u201d","NORP In DATE ORG was established . The CPA was required to consult with it on all matters concerning the temporary governance of GPE .","On DATE ORG passed Resolution CARDINAL , which provided , inter alia , as follows :","\u201c ORG","...","Recognising that international support for restoration of conditions of stability and security is essential to the well - being of the people of GPE as well as to the ability of all concerned to carry out their work on behalf of the people of GPE , and welcoming member State contributions in this regard under LAW ( DATE ) ,","...","Determining that the situation in GPE , although improved , continues to constitute a threat to international peace and security ,","Acting under LAW of ORG ,","PERSON the sovereignty and territorial integrity of GPE , and underscores , in that context , the temporary nature of the exercise by ORG ) of the specific responsibilities , authorities , and obligations under applicable international law recognised and set forth in LAW ( DATE ) , which will cease when an internationally recognised , representative government established by the people of GPE is sworn in and assumes the responsibilities of the ORG , inter alia , through steps envisaged in DATE CARDINAL below ;","...","Resolves that ORG , acting through the Secretary - General , his ORG , and ORG [ for ] GPE , should strengthen its vital role in GPE , including by providing humanitarian relief , promoting the economic reconstruction of and conditions for sustainable development in GPE , and advancing efforts to restore and establish national and local institutions for representative government ;","...","Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph CARDINAL above and to the ability of ORG to contribute effectively to that process and the implementation of Resolution DATE ) , and authorises a ORG under unified command to take all necessary measures to contribute to the maintenance of security and stability in GPE , including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of ORG , ORG and other institutions of the NORP interim administration , and key humanitarian and economic infrastructure ;","Urges member GPE to contribute assistance under this ORG mandate , including military forces , to ORG referred to in paragraph CARDINAL above ;","...","NORP Requests that GPE , on behalf of ORG as outlined in paragraph CARDINAL above , report to ORG on the efforts and progress of this ORG as appropriate and not less than DATE ;","Decides to remain seised of the matter . \u201d","Reporting to ORG on DATE , ORG said that ORG had conducted \u201c the full spectrum of military operations , which range from the provision of humanitarian assistance , civil affairs and relief and reconstruction activities to the detention of those who are threats to security \u201d . In a submission made by the CPA to ORG of the High Commissioner for Human Rights on DATE it was stated that GPE and GPE military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody .","On DATE the NORP Foreign Minister told ORG :","\u201c We seek a new and unambiguous draft resolution that underlines the transfer of full sovereignty to the people of GPE and their representatives . The draft resolution must mark a clear departure from ORG DATE ) and CARDINAL ( DATE ) which legitimised the occupation of our country .","...","However , we have yet to reach the stage of being able to maintain our own security and therefore the people of GPE need and request the assistance of ORG to work closely with NORP forces to stabilise the situation . I stress that any premature departure of international troops would lead to chaos and the real possibility of civil war in GPE . This would cause a humanitarian crisis and provide a foothold for terrorists to launch their evil campaign in our country and beyond our borders . The continued presence of ORG will help preserve GPE \u2019s unity , prevent regional intervention in our affairs and protect our borders at this critical stage of our reconstruction . \u201d","On DATE , the Prime Minister of the interim government of GPE , PERSON , and the GPE Secretary of ORG , PERSON , wrote to the President of ORG , as follows :","\u201c Republic of GPE ,","Prime Minister PERSON .","Excellency :","On my appointment as Prime Minister of the interim government of GPE , I am writing to express the commitment of the people of GPE to complete the political transition process to establish a free , and democratic GPE and to be a partner in preventing and combating terrorism . As we enter a critical new stage , regain full sovereignty and move towards elections , we will need the assistance of the international community .","The interim government of GPE will make every effort to ensure that these elections are fully democratic , free and fair . Security and stability continue to be essential to our political transition . There continue , however , to be forces in GPE , including foreign elements , that are opposed to our transition to peace , democracy , and security . The government is determined to overcome these forces , and to develop security forces capable of providing adequate security for the NORP people .","Until we are able to provide security for ourselves , including the defence of GPE \u2019s land , sea and air space , we ask for the support of ORG and the international community in this endeavour . We seek a new resolution on ORG ( ORG ) mandate to contribute to maintaining security in GPE , including through the tasks and arrangements set out in the letter from Secretary of ORG PERSON to the President of ORG . ...","...","We are ready to take sovereign responsibility for governing GPE by DATE . We are well aware of the difficulties facing us , and of our responsibilities to the NORP people . The stakes are great , and we need the support of the international community to succeed . We ask ORG to help us by acting now to adopt a ORG resolution giving us necessary support .","I understand that the Co - sponsors intend to annex this letter to ORG under consideration . In the meantime , I request that you provide copies of this letter to members of the ORG as quickly as possible .","( Signed ) Dr PERSON \u201d","\u201c The Secretary of ORG ,","GPE .","Excellency :","Recognising the request of the government of GPE for the continued presence of ORG ( ORG ) in GPE , and following consultations with Prime Minister PERSON of the NORP interim government , I am writing to confirm that the ORG under unified command is prepared to continue to contribute to the maintenance of security in GPE , including by preventing and deterring terrorism and protecting the territory of GPE . The goal of the ORG will be to help the NORP people to complete the political transition and will permit ORG and the international community to work to facilitate GPE \u2019s reconstruction .","...","Under the agreed arrangement , the ORG stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure ORG protection . These include activities necessary to counter ongoing security threats posed by forces seeking to influence GPE \u2019s political future through violence . This will include combat operations against members of these groups , internment where this is necessary for imperative reasons of security , and the continued search for and securing of weapons that threaten GPE \u2019s security . ...","...","In order to continue to contribute to security , the ORG must continue to function under a framework that affords the ORG and its personnel the status that they need to accomplish their mission , and in which the contributing ORG have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for , and use of assets by , the ORG . The existing framework governing these matters is sufficient for these purposes . In addition , the forces that make up the ORG are and will remain committed at all times to act consistently with their obligations under the law of armed conflict , including LAW .","The ORG is prepared to continue to pursue its current efforts to assist in providing a secure environment in which the broader international community is able to fulfil its important role in facilitating GPE \u2019s reconstruction . In meeting these responsibilities in the period ahead , we will act in full recognition of and respect for NORP sovereignty .","We look to other member GPE and international and regional organisations to assist the people of GPE and the sovereign NORP government in overcoming the challenges that lie ahead to build a democratic , secure and prosperous country .","The co - sponsors intend to annex this letter to ORG under consideration . In the meantime , I request that you provide copies of this letter to members of the ORG as quickly as possible .","( Signed ) PERSON \u201d","Provision for the new regime was made in ORG DATE , adopted on DATE . It provided as follows , with the above letters from PERSON and PERSON annexed :","\u201c ORG ,","Welcoming the beginning of a new phase in GPE \u2019s transition to a democratically elected government , and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent interim government of GPE by DATE ,","Recalling all of its previous relevant resolutions on GPE ,","...","Recalling the establishment of ORG UNAMI ) on DATE , and affirming that ORG should play a leading role in assisting the NORP people and government in the formation of institutions for representative government ,","Recognising that international support for restoration of stability and security is essential to the well - being of the people of GPE as well as to the ability of all concerned to carry out their work on behalf of the people of GPE , and welcoming member State contributions in this regard under LAW ( DATE ) of CARDINAL DATE and Resolution CARDINAL ( DATE ) ,","Recalling the report provided by GPE to ORG on DATE on the efforts and progress made by ORG ,","Recognising the request conveyed in the letter of DATE from the Prime Minister of the interim government of GPE to the President of the Council , which is annexed to this Resolution , to retain the presence of ORG ,","...","Welcoming the willingness of ORG to continue efforts to contribute to the maintenance of security and stability in GPE in support of the political transition , especially for upcoming elections , and to provide security for the ORG presence in GPE , as described in the letter of DATE from GPE Secretary of ORG to the President of the ORG , which is annexed to this ORG ,","Noting the commitment of all forces promoting the maintenance of security and stability in GPE to act in accordance with international law , including obligations under international humanitarian law , and to cooperate with relevant international organisations ,","...","Determining that the situation in GPE continues to constitute a threat to international peace and security ,","Acting under LAW of ORG ,","ORG the formation of a sovereign interim government of GPE ... which will assume full responsibility and authority by DATE for governing GPE ... ;","ORG that , also by DATE , the occupation will end and ORG will cease to exist , and that GPE will reassert its full sovereignty ;","...","Decides that in implementing , as circumstances permit , their mandate to assist the NORP people and government , the Special Representative of the Secretary - General and ORG UNAMI ) , as requested by the government of GPE , shall :","( a ) play a leading role to :","( i ) assist in the convening , during DATE , of a national conference to select a ORG ;","( ii ) NORP advise and support ORG of GPE , as well as the interim government of GPE and ORG , on the process for holding elections ;","( iii ) promote national dialogue and consensus - building on the drafting of a national LAW by the people of GPE ;","( b ) DATE and also :","( i ) advise the government of GPE in the development of effective civil and social services ;","( ii ) contribute to the coordination and delivery of reconstruction , development , and humanitarian assistance ;","( iii ) promote the protection of human rights , national reconciliation , and judicial and legal reform in order to strengthen the rule of law in GPE ; and","( iv ) advise and assist the government of GPE on initial planning for the eventual conduct of a comprehensive census ;","...","Notes that the presence of ORG in GPE is at the request of the incoming interim government of GPE and therefore reaffirms the authorisation for ORG under unified command established under LAW ( DATE ) , having regard to the letters annexed to this ORG ;","Decides that the ORG shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in GPE in accordance with the letters annexed to this Resolution expressing , inter alia , the NORP request for the continued presence of ORG and setting out its tasks , including by preventing and deterring terrorism , so that , inter alia , ORG can fulfil its role in assisting the NORP people as outlined in paragraph QUANTITY above and the NORP people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities ;","...","NORP Requests member GPE and international and regional organisations to contribute assistance to ORG , including military forces , as agreed with the government of GPE , to help meet the needs of the NORP people for security and stability , humanitarian and reconstruction assistance , and to support the efforts of ORG ;","...","NORP Requests the Secretary - General to report to the Council within DATE from DATE ORG on ORG operations in GPE , and on a DATE basis thereafter on the progress made towards national elections and fulfilment of all ORG \u2019s responsibilities ;","Requests that GPE , on behalf of ORG , report to ORG within DATE from DATE ORG on the efforts and progress of this ORG , and on a DATE basis thereafter ;","Decides to remain actively seised of the matter . \u201d","On DATE the CPA had issued Memorandum No . CARDINAL , which set out provisions on criminal detention and security internment by ORG . A revised version of Memorandum No . CARDINAL was issued on DATE . It provided as follows :","Section CARDINAL : ORG","\u201c ( CARDINAL ) Any person who is detained by a national contingent of the ORG [ ORG ] for imperative reasons of security in accordance with the mandate set out in ORG [ ORG ] CARDINAL ( hereinafter \u2018 security internee\u2019 ) shall , if he is held for a period TIME , be entitled to have a review of the decision to intern him .","( CARDINAL ) The review must take place with the least possible delay and in any case must be held DATE after the date of induction into an internment facility .","( CARDINAL ) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not DATE from the date of induction into an internment facility .","( CARDINAL ) The operation , condition and standards of any internment facility established by the ORG shall be in accordance with section IV of the Fourth Geneva Convention .","( CARDINAL ) ORG internees who are placed in internment after DATE must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the NORP criminal jurisdiction DATE from the date of induction into an ORG internment facility . Any person under DATE interned at any time shall in all cases be released not later than DATE after the initial date of internment .","( CARDINAL ) Where it is considered that , for continuing imperative reasons of security , a security internee placed in internment after DATE who is over DATE should be retained in internment for DATE , an application shall be made to ORG ( ORG ) for approval to continue internment for an additional period . In dealing with the application , the members of the ORG will present recommendations to the co - chairs who must jointly agree that the internment may continue and shall specify the additional period of internment . While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalised not DATE from the expiration of the initial DATE internment period .","( CARDINAL ) Access to internees shall be granted to the ORG . Access will only be denied the ORG for reasons of imperative military necessity as an exceptional and temporary measure . The ORG shall be permitted to inspect health , sanitation and living conditions and to interview all internees in private and to record information regarding an internee .","( CARDINAL) ORG to internees shall be granted to official delegates of the ICRC [ ORG ] . Access will only be denied the delegates for reasons of imperative military necessity as an exceptional and temporary measure . The ICRC delegates shall be permitted to inspect health , sanitation and living conditions and to interview all internees in private . They shall also be permitted to record information regarding an internee and may pass messages to and from the family of an internee subject to reasonable censorship by the facility authorities .","... \u201d","On DATE full authority was transferred from the CPA to the NORP interim government , and the CPA ceased to exist . Subsequently , ORG , including the NORP forces forming part of it , remained in GPE pursuant to requests by the NORP government and authorisations from ORG .","On DATE the new NORP LAW was adopted . It provided that any law which contradicted its provisions was deemed to be void . LAW required , inter alia , that any deprivation of liberty must be based on a decision issued by a competent judicial authority and LAW provided that no one should be kept in custody except according to a judicial decision .","The authorisation for the presence of ORG in GPE under ORG Resolution DATE was extended by Resolution CARDINAL of CARDINAL DATE and LAW of DATE until DATE and DATE respectively . These ORG also annexed an exchange of letters between the Prime Minister of GPE and the GPE Secretary of ORG , PERSON , referring back to the original exchange of letters annexed to LAW .","On DATE , as required by Resolution CARDINAL , the Secretary - General of ORG reported to ORG on the situation in GPE ( S\/CARDINAL\/CARDINAL ) . Under the heading \u201c Human rights activities \u201d he stated , inter alia :","\u201c CARDINAL . The volume of reports on human rights violations in GPE justifies serious concern . Accounts of human rights violations continue to appear in the press , in private security reports and in reports by local human rights groups . Individual accounts provided to ORG [ ORG GPE ] and admissions by the authorities concerned provide additional indications about this situation . In many cases , the information about violations has been widely publicised . Effective monitoring of the human rights situation remains a challenge , particularly because the current security situation makes it difficult to obtain evidence and further investigate allegations . In most instances , however , the consistency of accounts points to clear patterns .","...","... CARDINAL of the major human rights challenges remains the detention of CARDINAL of persons without due process . According to ORG , there were CARDINAL detainees at DATE , CARDINAL of whom were in the custody of ORG . Despite the release of some detainees , their number continues to grow . Prolonged detention without access to lawyers and courts is prohibited under international law , including during states of emergency . \u201d","Similar concerns were repeated in his reports of DATE and DATE ( NORP , \u00a7 CARDINAL ; NORP , \u00a7 CARDINAL ) and DATE , DATE and DATE ( S\/CARDINAL\/CARDINAL , \u00a7 DATE ; S\/CARDINAL\/CARDINAL , \u00a7 CARDINAL ; GPE , \u00a7 CARDINAL ; S\/CARDINAL\/CARDINAL , \u00a7 CARDINAL ) . By DATE , he reported that there were CARDINAL detainees in ORG detention centres . In his report of DATE he observed :","\u201c At the same time , the internment of CARDINAL of NORP by ORG and the NORP authorities constitutes de facto arbitrary detention . The extent of such practices is not consistent with the provisions of international law governing internment for imperative reasons of security . \u201d","In DATE he described the increase in the number of detainees and security internees as a pressing human rights concern ( S\/CARDINAL\/CARDINAL , \u00a7 DATE ) .","Similar observations were contained in the reports of ORG ) , which paragraph CARDINAL of Resolution CARDINAL mandated to promote the protection of human rights in GPE . In its report on the period July to August CARDINAL , ORG expressed concern about the high number of persons detained , observing that \u201c [ i]nternees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions \u201d . In its next report ( DATE ) , ORG repeated this expression of concern and advised that \u201c [ t]here is an urgent need to provide [ a ] remedy to lengthy internment for reasons of security without adequate judicial oversight \u201d . In DATE UNAMI reported that of the CARDINAL detainees in ORG custody , CARDINAL individuals were under GPE custody while the rest were under GPE authority . In the report for DATE , ORG expressed concern that there had been no reduction in the number of security internees detained by ORG . In its report for DATE , ORG commented :","\u201c DATE . The practice of indefinite internment of detainees in the custody of the ORG [ ORG ] remains an issue of concern to ORG . Of the total of CARDINAL persons held at DATE , an unknown number are classified as security internees , held for prolonged periods effectively without charge or trial . ... The current legal arrangements at the detention facilities do not fulfil the requirement to grant detainees due process . ... \u201d","ORG returned to this subject in its report for DATE , stating , inter alia :","\u201c DATE . In ORG \u2019s view , the administrative review process followed by the ORG through ORG ( CRRB ) requires improvement to meet basic due process requirements . Over time , the procedures in force have resulted in prolonged detention without trial , with many security internees held for DATE with minimal access to the evidence against them and without their defence counsel having access to such evidence . While the current review process is based on procedures contained in FAC , ORG notes that , irrespective of the legal qualification of the conflict , both in situations of international and internal armed conflict LAW are not of exclusive application to persons deprived of their liberty in connection with the conflict . Alongside common LAW and customary international law , international human rights law also applies . Accordingly , detainees during an internal armed conflict must be treated in accordance with international human rights law . As such , persons who are deprived of their liberty are entitled to be informed of the reasons for their arrest ; to be brought promptly before a judge if held on a criminal charge , and to challenge the lawfulness of their detention . \u201d","The report also referred to an exchange of correspondence between the GPE authorities and ORG , on the question whether LAW for ORG applied in relation to ORG security internment regime . While the GPE authorities maintained that it did not , ORG concluded :","\u201c CARDINAL . There is no separation between human rights and international humanitarian law in ORG resolutions adopted LAW [ of the Charter of ORG ] . In fact , the leading Resolutions on GPE , such as LAW of June CARDINAL , cite in the preamble : \u2018 Affirming the importance of the rule of law , national reconciliation , respect for human rights including the rights of women , fundamental freedoms , and democracy.\u2019 This arguably applies to all forces operating in GPE . The letter from the government of GPE attached to GPE res . [ ORG ] DATE also states that \u2018 The forces that make up ORG will remain committed to acting consistently with their obligations and rights under international law , including the law of armed ORG . International law includes human rights law . \u201d","Articles DATE and CARDINAL of the Regulations concerning ORG ( GPE , DATE ) ( \u201c LAW ) provide as follows :","Article CARDINAL","\u201c Territory is considered occupied when it is actually placed under the authority of the hostile army . The occupation extends only to the territory where such authority has been established and can be exercised . \u201d","Article CARDINAL","\u201c The authority of the legitimate power having in fact passed into the hands of the occupant , the latter shall take all the measures in his power to restore , and ensure , as far as possible , public order and safety , while respecting , unless absolutely prevented , the laws in force in the country . \u201d","The Convention ( IV ) relative to ORG in Time of War ( GPE , CARDINAL DATE ) ( \u201c the LAW \u201d ) defines \u201c protected persons \u201d as follows :","Article CARDINAL","\u201c Persons protected by the ORG are those who , at a given moment and in any manner whatsoever , find themselves , in case of a conflict or occupation , in the hands of a ORG to the conflict or Occupying Power of which they are not nationals .","Nationals of a ORG which is not bound by the ORG are not protected by it . Nationals of a neutral ORG who find themselves in the territory of a belligerent ORG , and nationals of a co - belligerent ORG , shall not be regarded as protected persons while the ORG of which they are nationals has normal diplomatic representation in the ORG in whose hands they are . ... \u201d","It contains the following provisions in relation to security measures and internment :","Article CARDINAL","\u201c Protected persons are entitled , in all circumstances , to respect for their persons , their honour , their family rights , their religious convictions and practices , and their manners and customs . They shall at all times be humanely treated , and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity .","Women shall be especially protected against any attack on their honour , in particular against rape , enforced prostitution , or any form of indecent assault .","Without prejudice to the provisions relating to their state of health , age and sex , all protected persons shall be treated with the same consideration by the ORG to the conflict in whose power they are , without any adverse distinction based , in particular , on race , religion or political opinion .","However , the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war . \u201d","Article CARDINAL","\u201c Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate , it may not have recourse to any other measure of control more severe than that of assigned residence or internment , in accordance with the provisions of ORG DATE and CARDINAL .","In applying the provisions of LAW , second paragraph , to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere , the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III , section IV of this Convention . \u201d","Article CARDINAL","\u201c The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary .","If any person , acting through the representatives of ORG , voluntarily demands internment and if his situation renders this step necessary , he shall be interned by ORG in whose hands he may be . \u201d","Article CARDINAL","\u201c Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose . If the internment or placing in assigned residence is maintained , the court or administrative board shall periodically , and at least twice DATE , give consideration to his or her case , with a view to the favourable amendment of the initial decision , if circumstances permit .","Unless the protected persons concerned object , the Detaining Power shall , as rapidly as possible , give the ORG the names of any protected persons who have been interned or subjected to assigned residence , or who have been released from internment or assigned residence . The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also , subject to the same conditions , be notified as rapidly as possible to ORG . \u201d","Article CARDINAL","\u201c The penal laws of the occupied territory shall remain in force , with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention . Subject to the latter consideration and to the necessity for ensuring the effective administration of justice , the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws .","The Occupying Power may , however , subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under LAW , to maintain the orderly government of the territory , and to ensure the security of the Occupying Power , of the members and property of the occupying forces or administration , and likewise of the establishments and lines of communication used by them . \u201d","Article CARDINAL","\u201c If the Occupying Power considers it necessary , for imperative reasons of security , to take safety measures concerning protected persons , it may , at the most , subject them to assigned residence or to internment .","Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention . This procedure shall include the right of appeal for the parties concerned . Appeals shall be decided with the least possible delay . In the event of the decision being upheld , it shall be subject to periodical review , if possible DATE , by a competent body set up by the said Power .","Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of LAW . \u201d","LAW to LAW of DATE , and relating to ORG ) , of DATE , provides in LAW :","\u201c Any person arrested , detained or interned for actions related to the armed conflict shall be informed promptly , in a language he understands , of the reasons why these measures have been taken . Except in cases of arrest or detention for penal offences , such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest , detention or internment have ceased to exist . \u201d","The Preamble to LAW states , inter alia :","\u201c 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 , ... \u201d","Article CARDINAL sets out the purposes of ORG , as follows :","\u201c CARDINAL . 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 achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race , sex , language , or religion ; ... \u201d","Article CARDINAL provides , inter alia :","\u201c CARDINAL . 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 .","NORP In discharging these duties the ORG shall act in accordance with the Purposes and Principles of ORG . The specific powers granted to ORG for the discharge of these duties are laid down in Chapters VI , ORG , ORG and ORG . \u201d","LAW provides :","\u201c The members of ORG agree to accept and carry out the decisions of ORG in accordance with the present Charter . \u201d","Chapter VII of the LAW is entitled \u201c Action with respect to threats to the peace , breaches of the peace and acts of aggression \u201d . Article CARDINAL provides :","\u201c 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 . \u201d","Articles CARDINAL and CARDINAL read as follows :","Article CARDINAL","\u201c 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 . \u201d","Article CARDINAL","\u201c Should the Security Council consider that measures provided for in LAW 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 . \u201d","Articles CARDINAL to CARDINAL provide for the conclusion of agreements between member GPE and ORG for the former to contribute to the latter the land and air forces necessary for the purpose of maintaining international peace and security . No such agreements have been concluded .","Chapter VII continues :","Article CARDINAL","\u201c CARDINAL . 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 . \u201d","Article CARDINAL","\u201c The members of the ORG shall join in affording mutual assistance in carrying out the measures decided upon by ORG . \u201d","LAW reads as follows :","\u201c In the event of a conflict between the obligations of the members of ORG under the present Charter and their obligations under any other international agreement , their obligations under the present Charter shall prevail . \u201d","DATE is entitled \u201c Application of successive treaties relating to the same subject matter \u201d and its first paragraph reads as follows :","\u201c CARDINAL . Subject to LAW , the rights and obligations of GPE Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs . ... \u201d","ORG has held LAW to mean that the LAW obligations of ORG member GPE prevail over conflicting obligations from another international treaty , regardless of whether the latter treaty was concluded before or after the LAW of ORG or was only a regional arrangement ( see GPE v. GPE , ICJ Reports DATE , p. CARDINAL , at \u00a7 MONEY ) . ORG has also held that LAW means that ORG member States\u2019 obligations under a ORG resolution prevail over obligations arising under any other international agreement ( see ORG of the DATE LAW from LAW at GPE ( NORP Arab GPE v. GPE and ORG GPE v. GPE , ICJ Reports DATE , vol . CARDINAL , p. CARDINAL , at \u00a7 DATE , and p. CARDINAL at \u00a7 MONEY ( hereinafter \u201c GPE \u201d ) .","In its LAW of the Continued Presence of GPE in GPE , notwithstanding ORG ( DATE ) , ORG observed , in connection with the interpretation of ORG resolutions :","\u201c CARDINAL . It has also been contended that the relevant ORG resolutions are couched in exhortatory rather than mandatory language and that , therefore , they do not purport to impose any legal duty on any ORG nor to affect legally any right of any ORG . The language of a resolution of ORG should be carefully analysed before a conclusion can be made as to its binding effect . In view of the nature of the powers under LAW , the question whether they have been in fact exercised is to be determined in each case , having regard to the terms of the resolution to be interpreted , the discussions leading to it , the LAW provisions invoked and , in general , all circumstances that might assist in determining the legal consequences of the resolution of ORG . \u201d","In its judgment ORG on the Territory of the GPE ( Democratic Republic of the GPE ( ORG ) v. GPE ) of DATE , ORG considered whether , during the relevant period , GPE was an \u201c Occupying Power \u201d of any part of the territory of GPE , within the meaning of customary international law , as reflected in LAW ( \u00a7 \u00a7 CARDINAL of the judgment ) . ORG found that NORP forces were stationed in the province of GPE and exercised authority there , in the sense that they had substituted their own authority for that of the NORP government ( \u00a7 \u00a7 DATE ) . ORG continued :","\u201c CARDINAL . The ORG thus concludes that GPE was the Occupying Power in GPE at the relevant time . As such it was under an obligation , according to LAW , to take all the measures in its power to restore , and ensure , as far as possible , public order and safety in the occupied area , while respecting , unless absolutely prevented , the laws in force in the ORG . This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law , to protect the inhabitants of the occupied territory against acts of violence , and not to tolerate such violence by any third party .","The ORG , having concluded that GPE was an ORG in GPE at the relevant time , finds that GPE \u2019s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory , including rebel groups acting on their own account .","The ORG notes that GPE at all times has responsibility for all actions and omissions of its own military forces in the territory of the ORG in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation . \u201d","The case of PERSON and ORG v. ORG of ORG ( Joined Cases C-CARDINAL\/CARDINAL P and C-CARDINAL\/CARDINAL P ) ( hereinafter \u201c LOC ) concerned a complaint about the freezing of assets under LAW adopted to reflect ORG CARDINAL ( DATE ) , CARDINAL ( DATE ) and CARDINAL ( DATE ) , which dictated , inter alia , that all GPE were to take measures to freeze the funds and other financial assets of individuals and entities associated with PERSON , the ORG network and the ORG . Those individuals , including the applicants , were identified by ORG . The applicants argued that the regulations were ultra vires because the assets freezing procedure violated their fundamental rights to a fair trial and to respect for their property , as protected by LAW establishing ORG .","ORG Instance rejected the applicant \u2019s claims and upheld the regulations , essentially finding that the effect of LAW was to give ORG resolutions precedence over other international obligations ( save jus cogens ) , which included the LAW establishing ORG . Thus , ORG concluded that it had no authority to review , even indirectly , ORG resolutions in order to assess their conformity with fundamental rights .","Mr PERSON appealed to ORG where his case was considered together with another appeal by ORG , which gave judgment on DATE . ORG held that ORG law formed a distinct , internal legal order and that it was competent to review the lawfulness of a Community regulation within that internal legal order , despite the fact that the regulation had been enacted in response to a ORG resolution . It followed that , while it was not for the \u201c Community judicature \u201d to review the lawfulness of ORG resolutions , they could review the act of a member ORG or Community organ that gave effect to that resolution ; doing so \u201c would not entail any challenge to the primacy of the resolution in international law \u201d . ORG recalled that ORG was based on the rule of law , that fundamental rights formed an integral part of the general principles of law and that respect for human rights was a condition of the lawfulness of ORG acts . The obligations imposed by an international agreement could not have the effect of prejudicing the \u201c constitutional principles of ORG \u201d , which included the principle that all ORG acts had to respect fundamental rights . The regulations in question , which provided for no right to challenge a freezing order , failed to respect fundamental rights and should be annulled .","In PERSON v. PERSON ( DATE ) CARDINAL SCt CARDINAL , ORG examined claims for habeas corpus relief from CARDINAL NORP citizens who voluntarily travelled to GPE and allegedly committed crimes there . They were each arrested in DATE by NORP forces operating as part of ORG , given hearings before ORG composed of NORP officers , who concluded that they posed a threat to GPE \u2019s security , and placed in the custody of GPE military operating as part of ORG . It was subsequently decided to transfer the detainees to the custody of the NORP authorities to stand trial on criminal charges before the NORP courts , and the detainees sought orders from ORG prohibiting this , on the ground that they risked torture if transferred to NORP custody . It was argued on behalf of the GPE government that ORG lacked jurisdiction over the GPE petitions because the NORP forces holding them operated as part of ORG . ORG observed that :","\u201c GPE acknowledges that PERSON and PERSON are NORP citizens held overseas in the immediate \u2018 physical custody\u2019 of NORP soldiers who answer only to an NORP chain of command . The MNF - I itself operates subject to a unified NORP command . \u2018 [ ORG a practical LOC , the ORG concedes , it is \u2018 the President and the ORG , the Secretary of ORG , and the NORP commanders that control what ... NORP soldiers ORG , ... including the soldiers holding PERSON and PERSON . In light of these admissions , it is unsurprising that GPE has never argued that it lacks the authority to release PERSON or PERSON , or that it requires the consent of other countries to do so . \u201d","ORG concluded that it considered \u201c these concessions the end of the jurisdictional inquiry \u201d . It held that NORP citizens held overseas by NORP soldiers subject to a GPE chain of command were not precluded from filing habeas corpus petitions in ORG . However , it further decided that ORG could not exercise their habeas corpus jurisdiction to enjoin GPE from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign ORG to that sovereign ORG for criminal prosecution . The ORG allegations that their transfer to NORP custody was likely to result in torture were a matter of serious concern but those allegations generally had to be addressed by the political branches , not the judiciary .","ORG was established by ORG in DATE for the \u201c promotion of the progressive development of international law and its codification \u201d . It consists of CARDINAL experts on international law , elected to the Commission by ORG from a list of candidates nominated by governments of member GPE .","In DATE of its ORG on ORG ( adopted in DATE ) , ORG stated as follows :","\u201c Conduct of organs or agents placed at the disposal of an international organisation by a ORG or another international organisation","The conduct of an organ of a ORG or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct . \u201d","ORG further stated , in DATE of its commentary on this Article :","\u201c CARDINAL . When an organ of a ORG is placed at the disposal of an international organisation , the organ may be fully seconded to that organisation . In this case the organ \u2019s conduct would clearly be attributable only to the receiving organisation ... LAW deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending ORG or as organ or agent of the lending organisation . This occurs for instance in the case of military contingents that a ORG placed at the disposal of ORG for a peacekeeping operation , since the ORG retains disciplinary powers and criminal jurisdiction over the members of the national contingent . In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organisation or to the lending ORG or organisation .","...","Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing ORG retains over disciplinary matters and criminal affairs . This may have consequences with regard to attribution of conduct . ...","Attribution of conduct to the contributing ORG is clearly linked with the retention of some powers by that ORG over its national contingent and thus on the control that the ORG possesses in the relevant respect .","As has been held by several scholars , when an organ or agent is placed at the disposal of an international organisation , the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question . ... \u201d","The report of ORG entitled \u201c Fragmentation of International Law : Difficulties Arising from ORG ( DATE ) stated , in respect of LAW ( footnotes omitted ) :","\u201c ( a ) What are the prevailing obligations ?","Article CARDINAL does not say that the Charter prevails , but refers to obligations under the Charter . Apart from the rights and obligations in the LAW itself , this also covers duties based on binding decisions by ORG bodies . The most important case is that of LAW that obliges member GPE to accept and carry out resolutions of ORG that have been adopted LAW . Even if the primacy of ORG decisions under LAW is not expressly spelled out in the LAW , it has been widely accepted in practice as well as in doctrine . The question has sometimes been raised whether also [ Security ] Council resolutions adopted ultra vires prevail by virtue of LAW . Since obligations for member ORG can only derive out of such resolutions that are taken within the limits of its powers , decisions ultra vires do not give rise to any obligations to begin with . Hence no conflict exists . The issue is similar with regard to non - binding resolutions adopted by ORG organs , including ORG . These are not covered by LAW .","...","( b ) What does it mean for an obligation to prevail over another ?","What happens to the obligation over which LAW establishes precedence ? Most commentators agree that the question here is not of validity but of priority . The lower - ranking rule is merely set aside to the extent that it conflicts with the obligation under LAW . This was how Waldock saw the matter during the ILC [ ORG ] debates on DATE [ of LAW on LAW ] : \u2018 [ T]he very language of LAW makes it clear that it presumes the priority of the LAW , not the invalidity of treaties conflicting with it.\u2019","A small number of authors have received a more extensive view of the effects of LAW namely the invalidity of the conflicting treaty or obligation \u2013 on the basis of the view of the LAW as a \u2018 constitution\u2019 . A clear - cut answer to this question ( priority or invalidity ? ) can not be received from the text of LAW . Yet the word \u2018 PERSON does not grammatically imply that the lower - ranking provision would become automatically null and void , or even suspended . The ORG is merely prohibited from fulfilling an obligation arising under that other norm . Article CARDINAL says literally that in case of a conflict , the ORG in question should fulfil its obligation under the LAW and perform its duties under other agreements in as far as compatible with obligations under LAW . This also accords with the drafting materials of the LAW , which state that :","\u2018 it would be enough that the conflict should arise from the carrying out of an obligation under the LAW . It is immaterial whether the conflict arises because of intrinsic inconsistency between the CARDINAL categories of obligations or as the result of the application of the provisions of the LAW under given circumstances.\u2019 \u201d","In DATE the NORP government initiated ORG in ORG . The Process is aimed at developing a multilateral approach to the treatment of detainees in military situations and it has attracted the involvement of CARDINAL States and a number of international organisations , including ORG , ORG , ORG , ORG and ORG . The \u201c non - paper \u201d , prepared for the first ORG on DATE , stated by way of introduction :","\u201c DATE has seen a significant change in the character of international military operations . They have developed from traditional peacekeeping operations under LAW of the UN Charter , through peacemaking operations under LAW , to a new type of operation in which military forces are acting in support of governments that need assistance to stabilise their countries or in support of the international administration of territory . In such operations , military forces may have to perform tasks which would normally be performed by national authorities , including detaining people in the context of both military operations and law enforcement .","At the same time , the countries which are to be assisted frequently have difficulties fulfilling their human rights and humanitarian law obligations due to the internal problems . Normal modus operandi , including the transfer of detainees to local authorities , may therefore often not be possible as it may contradict the legal and political commitment of the troop - contributing countries . The handling of detainees thereby becomes a challenge in itself . If a sustainable solution to these challenges is not reached , it may have an impact on the ability of the military forces of other GPE to engage in certain types of operations . States therefore can not disregard these challenges when contributing to ongoing or future operations of this nature .","The main challenge is a basic CARDINAL : how do troop - contributing GPE ensure that they act in accordance with their international obligations when handling detainees , including when transferring detainees to local authorities or to other troop - contributing countries ? Solving this challenge is not simple , as it involves addressing a number of complicated and contested legal issues as well as complicated practical and political aspects . ... \u201d","The \u201c non - paper \u201d continued , under the heading \u201c The legal basis [ of detention ] \u201d :","\u201c The legal basis for military forces to detain persons typically derives from the mandate of a given operation . The types of operations relevant for this non - paper are typically based on a Chapter VII resolution of ORG [ ORG ] . A ORG resolution may contain or refer to text on detention , and supplementary regulation may be found , for example , in standard operating procedures , rules of engagement and status - of - forces agreements , although the latter would also represent an agreement with the territorial ORG . The wording in these instruments on detention , however , is not always clear , if the issue is addressed at all .","In these circumstances , the mandate to detain is often based on the traditional wording of UNSC resolutions giving a military force the mandate to \u2018 take all necessary measures\u2019 in order to fulfil the given task . When a ORG resolution is unclear or contains no text on the mandate to detain , the right to self - defence may contain an inherent yet limited right to detain . However , this may leave the question open as to the scope of the mandate , e.g. , what type of detention is possible in self - defence and whether it is possible only to detain persons for reasons of security or also to detain e.g. common criminals .","There is therefore a need for ORG to address this issue and clearly establish the legal basis for the right of the force to detain in a given operation . A clear mandate on detention will improve the possibilities for soldiers on the ground to take the right decisions on detention matters and to avoid different interpretations on the understanding of an ambiguous ORG resolution . This need is further underlined by the fact that the right to detain might subsequently be challenged in court , and that officials \/ soldiers of troop - contributing GPE may be subject to prosecution for unlawful confinement under the grave breaches regime of LAW ( IV ) . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-114480","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2012,"docname":"DUNN v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently detained at GPE . He is represented before the Court by ORG , a firm of solicitors based in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON , ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was convicted of murder at ORG . He appealed against conviction before ORG , claiming that the evidence of CARDINAL of the principal prosecution witnesses was unreliable since that witness gave inconsistent evidence at later trials . The appeal was dismissed on DATE . ORG relied on case - law to the effect that the fact that a prosecution witness has been shown to have lied may not be fatal to conviction .","NORP The applicant sought to challenge the way in which ORG had dealt with the issue of adducing fresh evidence by way of an appeal to ORG . It was the applicant \u2019s case that , in determining this issue , ORG had wrongly followed the approach of a majority of ORG in the case of ORG v. ORG GPE and GPE ) [ DATE ] UKPC CARDINAL , rather than the approach of ORG in the case of GPE , NORP v. [ DATE ] ORG CARDINAL . In order for an appeal to be lodged with ORG ( now ORG ) in criminal matters , ORG must certify that a point of law of general public importance arises in the case ( section ORG ) of LAW DATE ) . ORG indicated that it would not certify that a point of law of general public importance arose in the case .","The applicant then applied to ORG for a declaration that section ORG ) of LAW was incompatible with Articles CARDINAL and CARDINAL of the LAW . The applicant argued that the certification requirement constituted a violation of his right to an impartial tribunal and his right of access to ORG .","On DATE ORG dismissed this application , finding that the certification requirement did not violate the applicant \u2019s rights under LAW . As regards the challenge to ORG impartiality , ORG distinguished between the substantive appeal and the certification process :","\u201c Although [ counsel for the applicant ] does not suggest actual bias , what he is in truth submitting is that in deciding whether to certify ORG may be influenced by an oblique motive ; the wish to avoid ORG considering the case and possibly overruling ORG decision . We entirely reject that . We reject too the suggestion that the fair minded and informed observer would conclude that in reaching its decision ORG would be so influenced . As [ counsel for the prosecution ] submits , in deciding whether or not to certify the court is not sitting on an appeal against its own decision . It is not determining any criminal charge . It is merely assessing whether its decision contains an important point of law . \u201d","ORG also emphasised that the same court was best placed to determine the existence of a point of law of general public importance , since it had already examined all the issues in the case .","ORG found that the certification requirement amounted to an interference with the applicant \u2019s right of access to ORG , which was , however , justified in pursuit of the legitimate aim of providing a filtering mechanism to control ORG caseload .","The essence of the applicant \u2019s right of access to ORG had not been denied since he had no right to have an uncertified point of law considered by ORG :","\u201c Moreover , we do not accept that a refusal to certify amounts to a denial of the essence of the appellant \u2019s right of access to ORG . The appellant has the right to have his access to the second - tier appeal court decided by an independent and impartial tribunal properly applying legal principles . If such a decision goes against the appellant that has not denied him the essence of his right to access to ORG . It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by ORG in circumstances where it is legitimate for there to be a filtering of the cases before that court . That is precisely what happened here . \u201d","As regards LAW , the ORG dismissed the applicant \u2019s claim on the ground that , in criminal cases , ORG jurisdiction was limited to resolving important matters of legal principle , whereas it had a broader remit in civil cases , sometimes encompassing factual issues . Appellants in criminal and civil cases were not , therefore , in comparable situations .","Section CARDINAL of LAW DATE , which replaced ORG DATE , provides as regards appeals in criminal proceedings :","\u201c CARDINAL . - Right of appeal to [ ORG ]","( CARDINAL ) An appeal lies to ORG at the instance of the defendant or prosecutor from any decision of ORG on an appeal to that court ...","( CARDINAL ) The appeal lies only with the leave of ORG or the [ ORG ] ; and leave shall not be granted unless it is certified by ORG that a point of law of general public importance is involved in the decision and it appears to ORG or the [ ORG ] ( as the case may be ) that the point is one which ought to be considered by [ ORG ] .","( CARDINAL ) Except as provided for by this part of this LAW ... no appeal shall lie from any decision of ORG . \u201d","Following several high profile miscarriages of justice , ORG , PERSON ( ORG , DATE ) , chaired by PERSON , was tasked to consider , inter alia , whether changes were needed in the criminal appeals process . In its DATE report , ORG recommended the abolition of the certification requirement ( at \u00a7 MONEY ) :","\u201c [ I]t is unduly restrictive to require such a certificate to be issued in addition to the necessity of obtaining leave from ORG or ORG itself . We think therefore that the requirement that ORG certify that the case involves a matter of law of general public importance should be dropped . The need to obtain the leave of either ORG or ORG before proceeding further is by itself a sufficient filter . \u201d","A review of the criminal courts carried out in DATE by Sir PERSON did not address this issue , since the composition and workings of ORG did not fall within its terms of reference .","NORP In GPE the High Court of Judiciary is the highest criminal court . There is no route of criminal appeal from ORG to ORG . However , there is an exception under LAW DATE for devolution issues . Devolution issues include questions as to the compatibility with LAW acts and functions of the Lord Advocate and legislation passed by the NORP parliament . In such cases , leave to appeal is required from either ORG or ORG . There is no certification requirement for criminal cases referred to ORG from ORG .","NORP In civil cases there is no certification requirement in respect of appeals to ORG from any order or judgment of ORG in GPE and GPE or in GPE . An application for permission to appeal must be made first to ORG . If that ORG refuses permission , an application may be made to ORG . For a \" leapfrog \" appeal directly from ORG to ORG , however , ORG judge must certify that the relevant conditions are satisfied , namely that a sufficient case has been made out to justify an application for permission to appeal to ORG and that all parties consent ( section CARDINAL(CARDINAL ) of ORG DATE ) . The \u201c relevant conditions \u201d ( which are set out in section CARDINAL(CARDINAL ) of ORG DATE ) are that a point of general public importance is involved and that it either :","\u201c ( a ) relates wholly or mainly to the construction of an enactment or of a statutory instrument , and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings , or","( b ) is one in respect of which the judge is bound by a decision of ORG or of the [ ORG ] in previous proceedings , and was fully considered in the judgments given by ORG or the [ ORG ] ( as the case may be ) in those previous proceedings . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75261","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2006,"docname":"CASE OF STROPNIK v. SLOVENIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"David Th\u00f3r Bj\u00f6rgvinsson;John Hedigan","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .","On DATE the applicant instituted civil proceedings against ZT in ORG ( PERSON sodi\u0161\u010de v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .","DATE and DATE the applicant filed CARDINAL preliminary written submissions and\/or adduced evidence .","From DATE and CARDINAL DATE he made CARDINAL requests that a date be set for a hearing .","Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .","During the proceedings the court appointed CARDINAL medical experts . The court also sought an additional opinion from CARDINAL of the appointed experts .","At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant \u2019s claim , was served on the applicant on DATE .","On DATE ZT appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .","On DATE the court dismissed the appeal .","The judgment was served on the applicant on DATE .","On DATE ZT lodged an appeal on points of law with ORG sodi\u0161\u010de ) .","On DATE the court dismissed the appeal .","The judgment was served on the applicant on DATE ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76457","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF PRONINA v. UKRAINE","importance":2,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award","judges":"","text":["The applicant was born in DATE and lives in the city of GPE , GPE .","In DATE the applicant lodged a claim with ORG against the local social welfare department , challenging the refusal of the latter to award her a higher pension . In her claim , the applicant maintained that , under LAW and LAW , her pension should not be lower than the minimum living standard . Therefore , given that her pension was fixed at ORG CARDINAL per month and the minimum living standard was established at ORG MONEY per month , the applicant claimed a corresponding increase in her pension .","On DATE the court decided against the applicant . The court established in particular that , although LAW provided the possibility for a higher pension , it also limited the amount to a maximum sum which the applicant in fact received . The court did not consider the applicant \u2019s argument about the inconsistency of the amount of her pension with the minimum living standard guaranteed by LAW .","The applicant appealed against the judgment of ORG to ORG of GPE . In her cassation appeal the applicant repeatedly claimed that her pension should not be lower than the minimum living standard , as defined in LAW , and that the constitutional provisions have supremacy over the provisions of normal laws .","NORP On DATE ORG of GPE upheld the decision of the first instance court . The court did not consider the applicant \u2019s appeal from the viewpoint of LAW .","The relevant provisions read as follows :","\u201c ... The norms of LAW are norms of direct effect . Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of LAW are guaranteed . \u201d","\u201c ... Pensions and other types of social payments and assistance that are the principal sources of subsistence , shall ensure a standard of living not lower than the minimum living standard ( \u043f\u0440\u043e\u0436\u0438\u0442\u043a\u043e\u0432\u0438\u0439 \u043c\u0456\u043d\u0456\u043c\u0443\u043c ) established by law . \u201d","\u201c ORG of GPE is the sole body of constitutional jurisdiction in GPE .","ORG decides on issues of conformity of laws and other legal acts with LAW , and provides the official interpretation of LAW and the laws of GPE . \u201d","\u201c The jurisdiction of ORG encompasses :","CARDINAL ) NORP deciding on issues of conformity with LAW ( the constitutionality ) of the following :","- laws and other legal acts of the Verkhovna Rada of GPE ;","- acts of the President of GPE ;","- acts of ORG of GPE ;","- legal acts of the Verkhovna Rada of GPE .","These issues are considered on the appeals of : the President of GPE ; CARDINAL ORG of GPE ; ORG of GPE ; LAW the Verkhovna Rada of GPE ; the Verkhovna Rada of GPE ;","CARDINAL ) NORP the official interpretation of LAW and the laws of GPE ;","On issues envisaged by this LAW , ORG of GPE adopts decisions that are mandatory for execution throughout the territory of GPE , that are final and shall not be appealed . \u201d","DATE Code provided that courts should decide a case on the basis of the LAW , other legislative acts or the international treaties of GPE , under the procedure provided for in the Code .","Article CARDINAL of the PERSON foresaw that a court decision should mention the facts of the case established by the court , evidence on which the court \u2019s conclusion was based , and reasons for admitting or rejecting this or that argument , as well as the laws applied by the court .","The relevant provisions read as follows :","\u201c When , in the proceedings before the courts of general jurisdiction , a dispute arises over the constitutionality of norms applied by a court , the examination of the case shall be suspended .","In such circumstances , constitutional proceedings shall be initiated and the case shall be considered by ORG immediately . \u201d","\u201c The ground for a constitutional appeal in order to obtain an official interpretation of LAW and laws of GPE is a lack of uniform application of provisions of the LAW or laws by the courts of GPE , or other organs of ORG authorities , if the subject of the right to a constitutional appeal considers that it may lead or has led to a violation of his or her constitutional rights and freedoms . \u201d","Article CARDINAL of this PERSON provides as relevant :","\u201c Old age pensions shall be established in the amount of PERCENT of the salary , but not less then the minimum amount of pensions ( \u043c\u0456\u043d\u0456\u043c\u0430\u043b\u044c\u043d\u0438\u0439 \u0440\u043e\u0437\u043c\u0456\u0440 \u043f\u0435\u043d\u0441\u0456\u0457 ) ...","The minimum amount of an old age pension shall be established in relation to the minimum consumer budget ( \u043c\u0456\u043d\u0456\u043c\u0430\u043b\u044c\u043d\u0438\u0439 \u0441\u043f\u043e\u0436\u0438\u0432\u0447\u0438\u0439 \u0431\u044e\u0434\u0436\u0435\u0442 ) . In case of economic crisis and a fall in production , the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income ( \u043c\u0435\u0436\u0430 \u043c\u0430\u043b\u043e\u0437\u0430\u0431\u0435\u0437\u043f\u0435\u0447\u0435\u043d\u043e\u0441\u0442\u0456 ) . ...","The maximum amount of an old age pension shall not exceed ... CARDINAL times the minimum amount of pensions ... \u201d","The PERSON set the basic DATE standard of income ( \u043c\u0435\u0436\u0430 \u043c\u0430\u043b\u043e\u0437\u0430\u0431\u0435\u0437\u043f\u0435\u0447\u0435\u043d\u043e\u0441\u0442\u0456 ) at UAH CARDINAL.CARDINAL for DATE , and ORG CARDINAL for DATE .","This PERSON set the minimum amount of pensions ( \u043c\u0456\u043d\u0456\u043c\u0430\u043b\u044c\u043d\u0438\u0439 \u0440\u043e\u0437\u043c\u0456\u0440 \u043f\u0435\u043d\u0441\u0456\u0457 ) at UAH CARDINAL.CARDINAL .","The relevant parts of the ORG read as follows :","\u201c CARDINAL . NORP Since the Constitution of Ukraine , as stipulated in its LAW , has the highest legal force , and its norms are norms of direct effect , the courts , in consideration of concrete cases , shall assess the content of any law or any other legal act for its compliance with LAW and , where necessary , shall apply the LAW as an act of direct effect . The court decisions shall be based on LAW and the current legislation which does not contradict it .","In case of doubt as to the compliance with LAW of a particular law , as applied or applicable in a case , the court , upon the motion of the parties to the proceedings or of its own motion , shall suspend consideration of the case and apply , by way of a reasoned decision ( ruling ) , to ORG of GPE which , under LAW , may raise before ORG the issue of compliance of laws and other legal acts with LAW . Such decisions can be taken by the first instance court , court of cassation or the court which considers a supervisory review ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94642","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2009,"docname":"CASE OF DESERVIRE S.R.L. v. MOLDOVA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial)","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the local authorities of GPE decided to split the ORG - owned ORG ( \u201c the Association \u201d ) into CARDINAL companies , CARDINAL of which was the applicant company . On DATE the applicant company was officially registered with the authorities as a private company and was subsequently assigned certain assets belonging to the ORG .","NORP The applicant company operated until DATE , when the local authorities sealed its premises in order to recover ORG property allegedly held by it . On DATE the local authorities decided to create a ORG - owned company ( \u201c the ORG company \u201d ) with a similar name to that of the applicant company and to transfer to it the ORG 's assets which had been assigned to the applicant company in DATE .","The applicant company claimed that its own property had been seized on DATE together with the property that had formerly belonged to the ORG and had been assigned to it in DATE . It also claimed that it had paid for the property assigned to it in DATE and that therefore the seizure of DATE had been unlawful . When the ORG company refused to return the seized assets , the applicant company initiated court proceedings .","On DATE ORG allowed the applicant company 's claims . On DATE ORG quashed that judgment and ordered a full rehearing of the case .","On DATE the ORG discontinued the proceedings on the ground that the arbitration courts were competent to examine such cases . On DATE ORG upheld that decision .","On an unknown date in DATE the applicant company initiated proceedings before ORG . On DATE ORG partly allowed the applicant company 's claims . On DATE the court issued an enforcement order , which was amended on DATE .","On DATE the enforcement of the decision of CARDINAL DATE was suspended pending an appeal before ORG .","On DATE the decision of CARDINAL DATE was amended by ORG , reducing the amount awarded to the applicant company .","On DATE ORG annulled all the previous judgments and ordered a full rehearing of the case .","On DATE ORG partly allowed the applicant company 's claims .","On DATE the applicant company complained to various authorities , including ORG , of unnecessary delays in the proceedings . The complaints were forwarded to the court examining the case .","On DATE ORG quashed the judgment of DATE and ordered a full rehearing of the case .","On DATE ORG partly allowed the applicant company 's claims . On DATE the court issued an enforcement order . No appeal was lodged and the judgment became DATE .","On CARDINAL DATE ORG lodged an application for annulment of the final judgment and asked ORG to reopen the proceedings . On DATE ORG allowed the request and quashed the final judgment of DATE , ordering a full rehearing of the case .","The Chi\u015fin\u0103u Arbitration Court scheduled CARDINAL court hearings in DATE that followed , almost all of which resulted in decisions to adjourn the proceedings and summon the parties for another date , because more evidence was necessary , or CARDINAL of the parties was absent , or because a connected set of proceedings to determine who should represent the ORG company was in progress . This period lasted from DATE until DATE .","During CARDINAL of the hearings , on DATE , the court noted that there was a disagreement between the parties as to the correct valuation of the disputed property and concluded that an expert valuation was necessary . It therefore suspended the proceedings and ordered an expert report on the companies ' accounts , to be paid for by the applicant company . The report , dated DATE , confirmed that the ORG company owed the applicant company CARDINAL NORP lei ( ORG ) . According to ORG , the report was submitted to the court on DATE .","On DATE the applicant company sought leave to pay the court fees by instalments , referring to its poor financial state . The ORG accepted the request , noting , inter alia , that the proceedings had started in DATE , that the case had been sent for a fresh examination and that the examination of the case had already lasted for a long time .","On DATE ORG partly allowed the applicant company 's claims .","On DATE ORG decided to assign the case to ORG in view of the fact that all the judges of ORG had already examined the case earlier .","On DATE ORG upheld the judgment of DATE .","On DATE ORG quashed the lower courts ' judgments and adopted a new one , rejecting all the applicant company 's claims as unfounded . It found , in particular , that it had not been proved with sufficient certainty that the applicant company had acquired any property of its own in addition to the property which had been assigned to it in DATE and which it had had to return to the ORG company . Several items which the applicant company had proved to be its own property had been returned by the ORG company or compensation had been paid . The creation of the applicant company , with ORG property but in private ownership , had been contrary to the law , and a number of its claims concerning its financial dealings with the ORG company could not be verified because the original documents had been destroyed after the expiry of the relevant time - limits for keeping them . The judgment of ORG was final .","On DATE ORG of GPE decided to put the applicant company into liquidation for non - payment of debts ."],"violated_articles":["13","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59885","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2001,"docname":"CASE OF AL-ADSANI v. THE UNITED KINGDOM","importance":1,"conclusion":"No violation of Art. 3;No violation of Art. 6-1","judges":"Gaukur J\u00f6rundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicant made the following allegations concerning the events underlying the dispute he submitted to the NORP courts . The Government stated that they were not in a position to comment on the accuracy of these claims .","The applicant , who is a trained pilot , went to GPE in DATE to assist in its defence against GPE . During the Gulf War he served as a member of ORG and , after the NORP invasion , he remained behind as a member of the resistance movement . During that period he came into possession of sex videotapes involving Sheikh PERSON ( \u201c the PERSON \u201d ) , who is related to the PERSON of GPE and is said to have an influential position in GPE . By some means these tapes entered general circulation , for which the applicant was held responsible by the PERSON .","After the NORP armed forces were expelled from GPE , on or about CARDINAL DATE , the PERSON and CARDINAL others gained entry to the applicant \u2019s house , beat him and took him at gunpoint in a government jeep to ORG . The applicant was falsely imprisoned there for DATE during which he was repeatedly beaten by security guards . He was released on CARDINAL DATE , having been forced to sign a false confession .","NORP On or about CARDINAL May CARDINAL the PERSON took the applicant at gunpoint in a government car to the palace of the PERSON of GPE \u2019s brother . At first the applicant \u2019s head was repeatedly held underwater in a swimming - pool containing corpses , and he was then dragged into a small room where the PERSON set fire to mattresses soaked in petrol , as a result of which the applicant was seriously burnt .","Initially the applicant was treated in a NORP hospital , and on CARDINAL DATE he returned to GPE where he spent DATE in hospital being treated for burns covering PERCENT of his total body surface area . He also suffered psychological damage and has been diagnosed as suffering from a severe form of post - traumatic stress disorder , aggravated by the fact that , once in GPE , he received threats warning him not to take action or give publicity to his plight .","On DATE the applicant instituted civil proceedings in GPE for compensation against the PERSON and ORG in respect of injury to his physical and mental health caused by torture in GPE in DATE and threats against his life and well - being made after his return to GPE on DATE . On DATE he obtained a default judgment against the PERSON .","The proceedings were re - issued after an amendment to include CARDINAL named individuals as defendants . On DATE a deputy ORG judge ex parte gave the applicant leave to serve the proceedings on the individual defendants . This decision was confirmed in chambers on DATE . He was not , however , granted leave to serve the writ on ORG .","The applicant submitted a renewed application to ORG , which was heard ex parte on DATE . Judgment was delivered the same day .","The court held , on the basis of the applicant \u2019s allegations , that there were CARDINAL elements pointing towards ORG responsibility for the events in GPE : firstly , the applicant had been taken to a State prison ; secondly , government transport had been used on CARDINAL and CARDINAL DATE ; and , thirdly , in the prison he had been mistreated by public officials . It found that the applicant had established a good arguable case , based on principles of international law , that GPE should not be afforded immunity under section CARDINAL(CARDINAL ) of LAW DATE ( \u201c the DATE LAW : see paragraph MONEY below ) in respect of acts of torture . In addition , there was medical evidence indicating that the applicant had suffered damage ( post - traumatic stress ) while in GPE . It followed that the conditions in LAW rule ORG ) of the Rules of ORG had been satisfied ( see paragraph CARDINAL below ) and that leave should be granted to serve the writ on ORG .","The NORP government , after receiving the writ , sought an order striking out the proceedings . The application was examined inter partes by ORG on DATE . In a judgment delivered the same day the court held that it was for the applicant to show on the balance of probabilities that ORG was not entitled to immunity under LAW . It was prepared provisionally to accept that the Government were vicariously responsible for conduct that would qualify as torture under international law . However , international law could be used only to assist in interpreting lacunae or ambiguities in a statute , and when the terms of a statute were clear , the statute had to prevail over international law . The clear language of LAW bestowed immunity upon sovereign GPE for acts committed outside the jurisdiction and , by making express provision for exceptions , it excluded as a matter of construction implied exceptions . As a result , there was no room for an implied exception for acts of torture in section CARDINAL(CARDINAL ) of LAW . Moreover , the court was not satisfied on the balance of probabilities that GPE was responsible for the threats made to the applicant after CARDINAL DATE . As a result , the exception provided for by LAW could not apply . It followed that the action against the ORG should be struck out .","The applicant appealed and ORG examined the case on DATE . The court held that the applicant had not established on the balance of probabilities that ORG was responsible for the threats made in GPE . The important question was , therefore , whether ORG immunity applied in respect of the alleged events in GPE . Lord Justice PERSON finding against the applicant , observed :","\u201c Jurisdiction of the NORP court in respect of foreign GPE is governed by LAW DATE . LAW ) provides :","\u2018 A ORG is immune from the jurisdiction of the courts of the GPE except as provided in the following provisions of this Part of this LAW . ... \u2019","... The only relevant exception is section CARDINAL , which provides :","\u2018 A ORG is not immune as respects proceedings in respect of","( a ) death or personal injury ... caused by an act or omission in GPE","It is plain that the events in GPE do not fall within the exception in section CARDINAL , and the express words of CARDINAL provide immunity to LAW . Despite this , in what [ counsel ] for the Plaintiff acknowledges is a bold submission , he contends that that section must be read subject to the implication that the ORG is only granted immunity if it is acting within ORG . So that the section reads : \u2018 A ORG acting within ORG is immune from jurisdiction except as provided ... \u2019","... The argument is ... that international law against torture is so fundamental that it is a jus cogens , or compelling law , which overrides all other principles of international law , including the well - established principles of sovereign immunity . No authority is cited for this proposition . ... At common law , a sovereign ORG could not be sued at all against its will in the courts of this country . LAW , by the exceptions therein set out , marks substantial inroads into this principle . It is inconceivable , it seems to me , that the draughtsman , who must have been well aware of the various international agreements about torture , intended section CARDINAL to be subject to an overriding qualification .","Moreover , authority in GPE at the highest level is completely contrary to [ counsel for the applicant \u2019s ] submission . [ Lord ORG referred to the judgments of GPE courts , GPE v. ORG and PERSON v. ORG , cited in paragraph CARDINAL below , in both of which the court rejected the argument that there was an implied exception to the rule of ORG immunity where the ORG acted contrary to ORG . ] ... [ Counsel ] submits that we should not follow the highly persuasive judgments of the NORP courts . I can not agree .","... A moment \u2019s reflection is enough to show that the practical consequences of the Plaintiff \u2019s submission would be dire . The courts in GPE are open to all who seek their help , whether they are NORP citizens or not . A vast number of people come to this country DATE seeking refuge and asylum , and many of these allege that they have been tortured in the country whence they came . Some of these claims are no doubt justified , others are more doubtful . Those who are presently charged with the responsibility for deciding whether applicants are genuine refugees have a difficult enough task , but at least they know much of the background and surrounding circumstances against which the claim is made . The court would be in no such position . GPE would be unlikely to submit to the jurisdiction of the GPE court , and in its absence the court would have no means of testing the claim or making a just determination . ... \u201d","The other CARDINAL members of ORG , Lord Justice Ward and Mr Justice PERSON , also rejected the applicant \u2019s claim . Lord Justice PERSON commented that \u201c there may be no international forum ( other than the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn ) where this terrible , if established , wrong can receive civil redress \u201d .","On DATE the applicant was refused leave to appeal by ORG . His attempts to obtain compensation from the NORP authorities via diplomatic channels have proved unsuccessful .","There is no rule under LANGUAGE law requiring a plaintiff to be resident in GPE or to be a NORP national before the NORP courts can assert jurisdiction over civil wrongs committed abroad . Under the rules in force at the time the applicant issued proceedings , the writ could be served outside the territorial jurisdiction with the leave of the court when the claim fell within CARDINAL or more of the categories set out in order CARDINAL , Rule CARDINAL of the Rules of ORG . For present purposes only Rule CARDINAL(f ) is relevant :","\u201c ... service of a writ out of the jurisdiction is permissible with the leave of the court if , in the action begun by the writ ,","...","( f ) the claim is founded on a tort and the damage was sustained , or resulted from an act committed , within the jurisdiction ... \u201d","NORP The relevant parts of LAW DATE provide :","\u201c CARDINAL . ( CARDINAL ) A ORG is immune from the jurisdiction of the courts of the GPE except as provided in the following provisions of this Part of this Act .","...","A ORG is not immune as regards proceedings in respect of-","( a ) death or personal injury ;","...","caused by an act or omission in GPE ... \u201d","The above provision ( section CARDINAL of LAW ) was enacted to implement the DATE LAW ( \u201c the Basle Convention \u201d ) , a ORG instrument , which entered into force on DATE after its ratification by CARDINAL States . It has now been ratified by MONEY ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) and signed by CARDINAL other ORG ( GPE ) . LAW provides :","\u201c A ORG can not claim immunity from the jurisdiction of a court of ORG in proceedings which relate to redress for injury to the person or damage to tangible property , if the facts which occasioned the injury or damage occurred in the territory of the ORG of forum , and if the author of the injury or damage was present in that territory at the time when those facts occurred . \u201d","LAW provides that a Contracting State shall be entitled to immunity if the proceedings do not fall within the stated exceptions .","In its Report on Jurisdictional Immunities of States and their Property ( DATE ) , the working group of ORG ( ILC ) found that over DATE a number of civil claims had been brought in municipal courts , particularly in GPE and GPE , against foreign governments , arising out of acts of torture committed not in the territory of the forum ORG but in the territory of the defendant and other GPE . The working group of the ORG found that national courts had in some cases shown sympathy for the argument that GPE are not entitled to plead immunity where there has been a violation of human rights norms with the character of jus cogens , although in most cases the plea of sovereign immunity had succeeded . The working group cited the following cases in this connection : ( GPE ) PERSON v. State of GPE CARDINAL International Law Reports CARDINAL at CARDINAL ; ( GPE ) ORG and Auditor General v. Sir PERSON [ DATE ] CARDINAL ORG CARDINAL , particularly at CARDINAL ( per PERSON ) ; Dissenting Opinion of Justice Wald in GPE ) Princz v. GPE CARDINAL F DATE ( DC Cir . DATE ) at CARDINAL ; PERSON v. ORG ( CARDINALth Cir . DATE ) ; GPE v. PERSON Shipping Corporation CARDINAL US CARDINAL ( DATE ) ; GPE v. PERSON CARDINAL International Law Reports CARDINAL .","The working group of the ORG did , however , note CARDINAL recent developments which it considered gave support to the argument that a ORG could not plead immunity in respect of gross human rights violations . CARDINAL of these was the ORG of Lords\u2019 judgment in ex parte PERSON ( No . CARDINAL ) ( see paragraph CARDINAL below ) . The other was the amendment by GPE of its LAW ( FSIA ) to include a new exception to immunity . This exception , introduced by section CARDINAL of the Anti - Terrorism and Effective Death Penalty Act of DATE , applies in respect of a claim for damages for personal injury or death caused by an act of torture , extra - judicial killing , aircraft sabotage or hostage - taking , against a ORG designated by the Secretary of ORG as a sponsor of terrorism , where the claimant or victim was a national of GPE at the time the act occurred .","In its judgment in PERSON v. ORG ( CARDINAL PERSON . DATE ( D.D.C. CARDINAL ) ) , ORG for GPE confirmed that the property of a foreign ORG was immune from attachment or execution , unless the case fell within CARDINAL of the statutory exceptions , for example that the property was used for commercial activity .","LAW provides in DATE that \u201c No person shall be put to torture \u201d .","DATE Rights CARDINAL states :","\u201c No one shall be subjected to torture or cruel , inhuman or degrading treatment or punishment . \u201d","Article CARDINAL of LAW DATE states as relevant :","\u201c No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . \u201d","The United Nations CARDINAL Declaration on ORG from Being Subjected to Torture and other Cruel , Inhuman or Degrading Treatment or Punishment provides in Article CARDINAL that :","\u201c No State may permit or tolerate torture and other cruel inhuman or degrading treatment or punishment . \u201d","In the United Nations Convention against Torture and Other Cruel , Inhuman and Degrading Treatment or Punishment , adopted on DATE ( \u201c the ORG Convention \u201d ) , torture is defined as :","\u201c For the purposes of this Convention , the term \u2018 torture\u2019 means any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions . \u201d","The UN Convention requires by LAW that ORG is to take effective legislative , administrative , judicial or other measures to prevent torture in any territory under its jurisdiction , and by DATE that all acts of torture be made offences under each ORG \u2019s criminal law .","In its judgment in Prosecutor v. PERSON ( DATE , case no . IT-CARDINAL - CARDINAL\/I - T , ( DATE ) CARDINAL ORG CARDINAL ) , ORG for the Former GPE observed as follows :","\u201c CARDINAL . It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right , which can never be derogated from , not even in time of emergency ... This is linked to the fact , discussed below , that the prohibition on torture is a peremptory norm or jus cogens . ... This prohibition is so extensive that GPE are even barred by international law from expelling , returning or extraditing a person to another ORG where there are substantial grounds for believing that the person would be in danger of being subjected to torture .","These treaty provisions impose upon GPE the obligation to prohibit and punish torture , as well as to refrain from engaging in torture through their officials . In international human rights law , which deals with ORG responsibility rather than individual criminal responsibility , torture is prohibited as a criminal offence to be punished under national law ; in addition , all GPE parties to the relevant treaties have been granted , and are obliged to exercise , jurisdiction to investigate , prosecute and punish offenders . ...","The existence of this corpus of general and treaty rules proscribing torture shows that the international community , aware of the importance of outlawing this heinous phenomenon , has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals . No legal loopholes have been left .","There exists DATE universal revulsion against torture ... . This revulsion , as well as the importance GPE attach to the eradication of torture , has led to a cluster of treaty and customary rules on torture acquiring a particularly high status in the international , normative system .","...","... the prohibition of torture imposes on GPE obligations erga omnes , that is , obligations owed towards all the other members of the international community .","...","... the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order . Because of the importance of the values it protects , this principle has evolved into a peremptory norm or jus cogens , that is , a norm that enjoys a higher rank in the international hierarchy than treaty law and even \u2018 ORG customary rules . The most conspicuous consequence of this higher rank is that the principle at issue can not be derogated from by GPE through international treaties or local or special or even general customary rules not endowed with the same normative force .","Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become CARDINAL of the most fundamental standards of the international community . ... \u201d","Similar statements were made in Prosecutor v. Delacic and Others ( DATE , case no . IT-CARDINAL - CARDINAL-T , \u00a7 CARDINAL ) and in Prosecutor v. PERSON ( DATE , case nos . IT-CARDINAL - CARDINAL-T and IT-CARDINAL - CARDINAL , \u00a7 CARDINAL ) .","GPE ratified LAW with effect from DATE .","Section CARDINAL of LAW DATE , which entered into force on DATE , made torture , wherever committed , a criminal offence under GPE law triable in GPE .","In its GPE v. FAC Stipendiary Magistrate and Others , ex parte PERSON ( No . CARDINAL ) , judgment of DATE [ DATE ] Appeal Cases CARDINAL , ORG held that the former President of GPE , Senator PERSON , could be extradited to GPE in respect of charges which concerned conduct that was criminal in GPE at the time when it was allegedly committed . The majority of ORG considered that extraterritorial torture did not become a crime in GPE until section CARDINAL of LAW DATE came into effect . The majority considered that although under Part II of LAW DATE a former head of ORG enjoyed immunity from the criminal jurisdiction of GPE for acts done in his official capacity , torture was an international crime and prohibited by jus cogens ( peremptory norms of international law ) . The coming into force of LAW ( see paragraph CARDINAL above ) had created a universal criminal jurisdiction in all GPE in respect of acts of torture by public officials , and GPE Parties could not have intended that an immunity for ex - heads of ORG for official acts of torture would survive their ratification of LAW . ORG ( and , in particular , Lord PERSON , at p. CARDINAL ) made clear that their findings as to immunity ratione materiae from criminal jurisdiction did not affect the immunity ratione personae of foreign sovereign GPE from civil jurisdiction in respect of acts of torture ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3","6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68767","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2005,"docname":"FAIRFIELD AND OTHERS v. THE UNITED KINGDOM","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicants , PERSON , daughter of Mr PERSON , Mr PERSON and Mr PERSON , executors of Mr PERSON 's estate , are GPE nationals , who were born in DATE , DATE and DATE and live in GPE , GPE and GPE respectively . They were represented before the ORG by PERSON , a solicitor practising in GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","Mr PERSON , born in DATE , was an evangelical NORP who had been preaching for DATE . His religious beliefs were deeply held and he had a desire to convert others to his way of thinking .","During DATE , PERSON had a large double - sided sign made , bearing the words \u201c Stop Immorality \u201d , \u201c Stop Homosexuality \u201d and \u201c Stop Lesbianism \u201d . The sign , attached to a pole , also bore in each corner the words \u201c PERSON is Lord \u201d .","Prior to CARDINAL DATE PERSON had on CARDINAL occasion preached in public while displaying the sign and had received a hostile reaction from members of the public , some of whom attempted to deface or destroy the sign .","On TIME , DATE , PERSON travelled by bus into GPE . He covered the sign with a plastic bin liner for the trip as he believed , in light of previous reactions , that it might provoke a disturbance if displayed inside the bus . He then took up position in FAC , a pedestrian area of the town centre , and began preaching , holding up the sign .","A group of CARDINAL people gathered around him , arguing and shouting . Some were angry , others aggressive or distressed ; some threw soil at him . At CARDINAL point , someone tried to snatch the sign away from him and it struck someone on the head . A struggle ensued during which PERSON fell to the ground . He got up and continued preaching , holding up the sign . At this point , someone poured water over his head .","CARDINAL police constables , PERSON and PERSON , arrived at the scene . PC PERSON found the crowd to be angry , agitated and insulted . She asked PERSON to put away the sign and leave . He refused . He declared that he was aware that people found the sign insulting as he had had a similar reaction previously . PC PERSON was of the opinion that it was not necessary for the police to take any action . PC PERSON took the view that he was provoking violence and arrested him for breach of the peace .","On DATE PERSON was charged with an offence under LAW DATE , in that he had displayed a sign which was threatening , abusive or insulting within the hearing or sight of a person likely to be caused harassment , alarm or distress , contrary to section CARDINAL ) of the LAW .","The case was heard before magistrates on CARDINAL and DATE . On DATE the magistrates convicted PERSON , finding that he had known that insult , distress and disturbance were likely to be caused but had refused to put away the sign or leave when requested . He was fined MONEY , with prosecution costs . The sign was confiscated .","PERSON appealed to ORG by way of case stated . In their statement of case dated DATE , amended on DATE , the magistrates declared that they had considered his Convention rights but found that there had been a pressing social need to restrict his freedom of expression to prevent disorder . They gave the following reasons .","( a ) The words displayed on the sign were in fact insulting and caused distress to persons who were present .","( b ) The appellant was aware that the words on the sign were insulting ; he admitted this to PC PERSON . His awareness was also demonstrated by his covering the sign with a black plastic bin liner while travelling on the bus and acknowledging that he had received a similar reaction in the past .","( c ) The restriction on the appellant 's right to freedom of expression had the legitimate aim of preventing disorder in view of the reaction of people in the crowd to the sign .","( d ) There was a pressing social need for the restriction and the restriction corresponded to that need . The words on the appellant 's sign were directed specifically towards the homosexual and lesbian communities , implying that they were immoral and there was a need to show tolerance towards all sections of society . The sign was displayed in the town centre on a DATE TIME , provoking hostility from members of the public .","( e ) The interference with the appellant 's right to freedom of expression by prosecuting him was a proportionate response in view of the fact that his behaviour went beyond legitimate protest , was provoking violence and interfered with the rights of others .","( f ) Although the appellant knew that insult , distress and disturbance were likely to be caused by using the placard , having received a similar reaction in the past , he refused to put away the sign or leave at PC PERSON 's request .","On DATE PERSON died . The executors of his estate were granted permission on DATE to continue the appeal .","After a hearing on DATE , ORG dismissed the appeal .","Lord Justice May held , inter alia :","\u201c ... The essential grounds of appeal ... are firstly that the justices were wrong and misdirected themselves in finding that the words on the sign were insulting and secondly , that a proper reading of Articles CARDINAL and CARDINAL of the ORG should have led to the conclusion that the appellant should have been acquitted of this offence . The precise intellectual route by means of which that , it is submitted , should be achieved can , in my judgment , be addressed by reference to the question of reasonableness . ...","... It is submitted that no reasonable tribunal of fact could conclude that the words on the sign went beyond legitimate expression and that they were something more than an affront or disrespectful is not sustained . There is no element of stereotyping , no element of gratuitous or gross abuse . ...","... I have not found this question easy because it is certainly correct that the words on the sign are short and , so far as they go , are not expressed in intemperate language . ... but I come to the clear conclusion that it was open to the magistrates to reach the conclusion they did , not least because the words appear to relate homosexuality and lesbianism with immorality . The justices themselves take this into consideration when they say that the words on the appellant 's sign were directed specifically towards the homosexual and lesbian community , implying that they were immoral . Accordingly , not without hesitation , I have reached the conclusion that it was open to the justices to reach the conclusion ... that these words on the sign were , in fact , insulting .","I have also considered whether in light of LAW , in particular but also taking account of LAW , the justices should have concluded that Mr Hammond had established that his conduct was reasonable . He was , after all , according to his understanding , exercising his right of freedom of expression of views which may or may not have been acceptable to those who were passing by but , nevertheless , one had to bear in mind the cardinal importance of freedom of expression in a society such as ours . Nevertheless , I have concluded that the justices in their reasons have not only considered the questions which they were obliged to consider ... and have reached a conclusion that it was open to them to reach , for the reasons they gave , that the appellant 's conduct was not reasonable . \u201d","ORG refused to certify that a point of law of public importance arose to be considered by ORG . Its decision was therefore final .","The relevant parts of LAW provide :","\u201c ( CARDINAL ) A person is guilty of an offence if he \u2013","...","( b ) displays any writing or sign or other visible representation which is threatening , abusive or insulting ,","within the hearing or sight of a person likely to be caused harassment , alarm or distress thereby .","...","( CARDINAL ) It is a defence for the accused to prove \u2013","...","( c ) that his conduct was reasonable . \u201d","Section CARDINAL is relevant as regards the mental element . Section CARDINAL ) provides :","\u201c A person is guilty of an offence under section CARDINAL only if he intends his words or behaviour , or the writing , sign or other visible representation , to be threatening , abusive or insulting , or is aware that it may be threatening , abusive or insulting or ( as the case may ) he intends his behaviour to be or is aware that it may be disorderly . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91278","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2009,"docname":"COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE KOKKELVISSERIJ U.A. v. THE NETHERLANDS","importance":1,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant , PERSON , is an association based in GPE , the GPE . The applicant association was represented before the ORG by PERSON , a lawyer practising in GPE ( GPE ) and GPE ( the GPE ) .","The applicant association is comprised of individuals and enterprises engaged in mechanical cockle fishing in waters including , prior to the events complained of , LOC .","LOC is a tidal wetlands area linked directly to LOC . The western part belongs to the internal waters of the GPE . It provides feeding and breeding grounds for a variety of wildlife including a number of species of molluscs and seabirds . With the exception of passages left open for shipping and military training grounds , it is subject to an environmental protection regime under domestic law .","In the part of LOC under the sovereignty of the GPE , the regime was defined at the relevant time by decrees issued under the CARDINAL LAW ( Natuurbeschermingswet ) . LAW of that LAW made activities , including the catching and killing of animals in protected areas , subject to the granting of a licence by ORG ( Minister PERSON , PERSON ) .","The cockle ( cerastoderma edule or cardium edule ) is an edible bivalve mollusc found in tidal flats and on the seabed in shallow coastal waters . Its natural predators in LOC include several bird species , particularly eider ducks ( somateria mollissima ) and oystercatchers ( haematopus ostralegus ) .","Cockles are fished commercially , using both manual and mechanical methods : the mechanical techniques used are dredging and suction .","On DATE the Deputy Minister ( Staatssecretaris ) of Agriculture , Nature Conservation and Fisheries ( \u201c the Deputy Minister \u201d ) granted a licence to the applicant association entitling its members collectively to a total catch of CARDINAL tonnes of cockle meat from LOC over a period of CARDINAL in the following autumn .","On DATE LOC , also known as PERSON ) , a nongovernmental organisation whose stated aim was to protect the LOC environment , lodged an objection ( bezwaar ) on its own behalf and on behalf of another non - governmental organisation , ORG ( PERSON , also called PERSON ) . The ORG stated , in so far as relevant to the case before the ORG , that mechanical cockle fishing caused long - term and possibly irreversible damage to ecologically vulnerable areas and that the quota set was too high in relation to the feeding needs of seabirds , including oystercatchers .","On DATE the Deputy Minister gave a decision dismissing the objection as unfounded , on the grounds that much of LOC was closed to mechanical cockle fishing ; at all events , in the absence of empirical evidence , it was not established that the effects of such fishing were irreversible . The estimated quantities of cockles in DATE were such that there was no need to reserve them all for DATE , particularly since the birds could also feed on protected mussel banks .","ORG appealed against that decision to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) .","On DATE the Deputy Minister granted a licence to the applicant association entitling its members collectively to a total catch of up to QUANTITY of cockle meat from LOC over a period of CARDINAL in DATE .","On DATE LOC lodged an objection , again acting on its own behalf and on behalf of ORG . It mainly restated the grounds of its objection of CARDINAL DATE . A serious reduction in the numbers of eider ducks and oystercatchers had been noted in DATE , presumably as a result of the partial destruction of their feeding grounds . In addition , the Deputy Minister \u2019s decision was incompatible with LAW DATE on the conservation of natural habitats and of wild fauna and flora ( \u201c the Habitats Directive \u201d \u2013 see below ) , which required a stricter assessment of the likely environmental effects than the applicable domestic legislation .","On DATE the Deputy Minister dismissed the objection as unfounded . He dismissed the argument that the environmental impact assessment was incompatible with the Habitats Directive , since in his view the assessment under the applicable domestic legislation was equivalent in scope and was based on the latest available scientific information . No grounds for serious concern as to possible irreversible environmental damage had been made out , nor had the reality of the supposed threat to the feeding grounds of eider ducks and oystercatchers been established .","LOC lodged an appeal against that decision also .","ORG joined the cases and held a hearing on DATE . The applicant association appeared as an interested party .","On DATE ORG gave its decision .","It rejected the arguments of the appellant non - governmental organisations in so far as they called into question the Deputy Minister \u2019s assessment of the likelihood of harm to the LOC environment and wildlife . It accepted , however , that questions arose with regard to the interpretation and application of LAW in the light of the binding substantive standards of ORG law , in particular the LOC Directive . It was therefore necessary to seek a preliminary ruling of ORG of ORG ( \u201c the ECJ \u201d ) under LAW establishing ORG ( \u201c the LAW \u201d \u2013 see below ) .","The questions submitted to the ECJ were the following :","\u201c PERSON ) Are the words \u2018 plan or project\u2019 in LAW CARDINAL of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora to be interpreted as also covering an activity which has already been carried on for DATE but for which an authorisation is in principle granted DATE for a limited period , with a fresh assessment being carried out on each occasion as to whether , and if so in which sections of the area , the activity may be carried on ?","( b ) If the answer to Question CARDINAL ) is in the negative , must the relevant activity be regarded as a \u2018 plan or project\u2019 if the intensity of this activity has increased over DATE or an increase in it is made possible by the authorisations ?","CARDINAL ) NORP If it follows from the answer to Question CARDINAL that there is a \u2018 plan or project\u2019 within the meaning of Article CARDINAL of the LOC Directive , is LAW to be regarded as a special application of the rules in LAW or as a provision with a separate , independent purpose in the sense that , for example :","( i ) Article CARDINAL \u00a7 CARDINAL relates to existing use and LAW to new plans or projects ; or","( ii ) Article CARDINAL \u00a7 CARDINAL relates to management measures and LAW to other decisions ; or","( iii ) Article CARDINAL relates to plans or projects and LAW to other activities ?","( b ) If LAW is to be regarded as a special application of the rules in LAW , can the CARDINAL sub - paragraphs be applicable cumulatively ?","CARDINAL ) Is LAW of the Habitats Directive to be interpreted as meaning that there is a \u2018 plan or project\u2019 once a particular activity is likely to have an effect on the site concerned ( and an \u2018 appropriate assessment\u2019 must then be carried out to ascertain whether or not the effect is \u2018 significant\u2019 ) or does this provision mean that an \u2018 appropriate assessment\u2019 has to be carried out only where there is a ( sufficient ) likelihood that a \u2018 plan or project\u2019 will have a significant effect ?","( b ) DATE On the basis of which criteria must it be determined whether or not a plan or project within the meaning of LAW of the Habitats Directive not directly connected with or necessary to the management of the site is likely to have a significant effect thereon , either individually or in combination with other plans or projects ?","CARDINAL ) When LAW of the Habitats Directive is applied , on the basis of which criteria must it be determined whether or not there are \u2018 appropriate steps\u2019 within the meaning of LAW or an \u2018 appropriate assessment\u2019 , within the meaning of LAW , in connection with the certainty required before agreeing to a plan or project ?","( b ) Do the terms \u2018 appropriate ORG or \u2018 appropriate assessment\u2019 have independent meaning or , in assessing these terms , is account also to be taken of LAW ORG [ LAW ] and in particular the precautionary principle referred to therein ?","( c ) If account must be taken of the precautionary principle referred to in Article CARDINAL \u00a7 CARDINAL ORG , does that mean that a particular activity , such as the cockle fishing in question , can be authorised where there is no obvious doubt as to the absence of a possible significant effect or is that permissible only where there is no doubt as to the absence of such an effect or where the absence can be ascertained ?","Do LAW or LAW CARDINAL of the LOC Directive have direct effect in the sense that individuals may rely on them in national courts and those courts must provide the protection afforded to individuals by the direct effect of Community law , as was held , inter alia , in Case C-CARDINAL\/CARDINAL Peterbroeck [ DATE ] ECR I-CARDINAL ? \u201d","LOC , ORG , the applicant association , the respondent Government and ORG all submitted observations to the ECJ . Following proceedings in writing , the ECJ held an oral hearing on DATE .","On DATE the Advocate General \u2019s advisory opinion was read out in public . Its conclusions were as follows :","\u201c CARDINAL . I propose that the ORG [ i.e. the ECJ ] answer the questions referred for a preliminary ruling by the Raad van State as follows :","( CARDINAL ) The words \u2018 plan and project\u2019 in LAW CARDINAL\/CARDINAL\/EEC of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora also cover an activity which has already been carried on for DATE but for which an authorisation is in principle granted DATE for a limited period .","( CARDINAL ) Article CARDINAL \u00a7 CARDINAL of Directive CARDINAL lays down the procedure for authorising plans and projects which do not affect the integrity of protection sites , whereas Article CARDINAL \u00a7 CARDINAL thereof lays down permanent obligations irrespective of the authorisation of plans and projects , namely to avoid deterioration and disturbance which could be significant in relation to the objectives of the directive .","( CARDINAL ) An appropriate assessment is always necessary where reasonable doubt exists as to the absence of significant adverse effects . Any effect on the conservation objectives has a significant effect on the site concerned .","( CARDINAL ) An appropriate assessment must :","\u2013 precede agreement to a plan or project ;","\u2013 take account of cumulative effects ; and","\u2013 document all adverse effects on conservation objectives .","The competent authorities may agree to a plan or project only where , having considered all the relevant information , in particular the appropriate assessment , they are certain that the integrity of the site concerned will not be adversely affected . This presupposes that the competent authorities are satisfied that there is no reasonable doubt as to the absence of such adverse effects .","Where LAW CARDINAL applies to the authorisation of a scheme such authorisation must , in substantive terms , provide the same standard of protection as authorisation granted pursuant to LAW .","( CARDINAL ) Individuals may rely on LAW CARDINAL in so far as avenues of legal redress against measures infringing the above - mentioned provisions are available to them under national law . They may , under the same conditions , rely on Article CARDINAL \u00a7 CARDINAL of Directive CARDINAL in so far as error of assessment is claimed . An indirect burden on citizens which does not encroach on legal positions protected by Community law does not preclude the recognised ( vertical ) binding of ORG authorities to directly applicable directives . \u201d","This concluded the oral procedure .","In a letter of CARDINAL DATE the applicant association sought permission to submit a written response to ORG opinion ; it sought , in the alternative , an order for the reopening of the oral procedure , and in the further alternative , some other opportunity to revisit the opinion .","On DATE the ECJ gave an order containing the following reasoning :","\u201c CARDINAL . To begin with , PO PERSON [ the applicant association ] contends that the positions taken in that opinion are incorrect as to both the facts and the law . In support of its primary and further alternative requests PERSON invokes the right to adversarial proceedings under LAW , signed in GPE on CARDINAL DATE ( hereafter \u2018 the Convention\u2019 ) , as construed by ORG . The alternative request is based on LAW . PO PERSON states that it would run counter to the proper conduct of the proceedings to set out the merits of its objections against the Advocate General \u2019s opinion in its letter of CARDINAL DATE .","It should be pointed out that the Statute of the Court of Justice and ORG make no provision for parties to submit observations in reply to the opinion of ORG ( see the decision of DATE in Case CCARDINAL\/CARDINAL Emesa Sugar [ DATE ] ECR ( ORG Reports ) ORG , point CARDINAL ) . This circumstance , however , does not violate a party \u2019s right to adversarial proceedings flowing from LAW as construed by ORG ( see the above - mentioned ORG decision , points CARDINAL - CARDINAL ) .","PO PERSON \u2019s request to submit written observations in reply to the opinion of the Advocate General , or to be granted the opportunity otherwise to revisit the opinion , must therefore be rejected .","In view of the purpose of adversarial proceedings , which is to prevent the ORG from being influenced by arguments to which parties have not been able to respond , the ORG may , of its own motion , on a proposal from the Advocate General or at the request of the parties , as applicable , reopen the oral procedure in accordance with LAW if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties ( see the above - mentioned ORG decision , point CARDINAL ) .","In the instant case ORG request contains no precise information indicating that it would be either useful or necessary to reopen the procedure .","PO PERSON \u2019s request for the reopening of the oral procedure must therefore be dismissed . \u201d","On DATE the ECJ delivered its judgment . The preliminary ruling which it contained was worded as follows :","\u201c CARDINAL . Mechanical cockle fishing which has been carried on for DATE but for which a licence is granted DATE for a limited period , with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on , falls within the concept of \u2018 GPE or \u2018 project\u2019 within the meaning of LAW PERSON of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora .","Article CARDINAL \u00a7 CARDINAL of Directive CARDINAL establishes a procedure intended to ensure , by means of a preliminary examination , that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site , while Article CARDINAL \u00a7 CARDINAL of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive \u2019s objectives , and can not be applicable concomitantly with LAW .","CARDINAL ) The first sentence of LAW of Directive CARDINAL\/CARDINAL must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site \u2019s conservation objectives if it can not be excluded , on the basis of objective information , that it will have a significant effect on that site , either individually or in combination with other plans or projects .","( b ) Pursuant to the first sentence of LAW of Directive CARDINAL , where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site \u2019s conservation objectives , it must be considered likely to have a significant effect on that site . The assessment of that risk must be made in the light , inter alia , of the characteristics and specific environmental conditions of the site concerned by such a plan or project .","Under LAW of Directive CARDINAL , an appropriate assessment of the implications for the site concerned of the plan or project implies that , prior to its approval , all the aspects of the plan or project which can , by themselves or in combination with other plans or projects , affect the site \u2019s conservation objectives must be identified in the light of the best scientific knowledge in the field . The competent national authorities , taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site \u2019s conservation objectives , are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site . That is the case where no reasonable scientific doubt remains as to the absence of such effects .","Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of LAW CARDINAL\/CARDINAL , it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with , even though it has not been transposed into the legal order of the member ORG concerned despite the expiry of the time - limit laid down for that purpose . \u201d","ORG allowed the participants in the proceedings before it to respond in writing to the judgment of the ECJ . It held a further hearing on DATE at which LOC , ORG , the Deputy Minister and the applicant association were represented .","The applicant association argued that the ECJ had acted ultra vires by finding , as a matter of fact , that mechanical cockle fishing in LOC was to be considered a \u201c plan \u201d or a \u201c project \u201d within the meaning of LAW of the Habitats Directive ; moreover , that finding had been based on an incorrect assessment of the facts . The applicant association further argued that the judgment of the ECJ should be disapplied , having been delivered following proceedings that violated LAW .","On DATE ORG delivered its judgment . It rejected the argument that the ECJ had acted ultra vires and found that the applicant association had not established that the ECJ had based its judgment on facts other than those set out in ORG own judgment of DATE . Finding it established , in the absence of scientific evidence to the contrary , that the impact of mechanical cockle fishing on natural habitats appeared likely to be \u201c significant \u201d , it revoked the cockle - fishing licences issued to the applicant association on the ground that they contravened LAW of the Habitats Directive .","As far as the ORG is aware , mechanical cockle fishing in the GPE waters of LOC has ceased entirely since then .","The provisions of the LAW relevant to the present case provide as follows :","\u201c ORG and ORG , each within its jurisdiction , shall ensure that in the interpretation and application of LAW the law is observed .","In addition , judicial panels may be attached to ORG under the conditions laid down in Article CARDINALa in order to exercise , in certain specific areas , the judicial competence laid down in this LAW . \u201d","\u201c ORG shall consist of CARDINAL judge per member ORG .","ORG shall sit in chambers or in a Grand Chamber , in accordance with the rules laid down for that purpose in the Statute of the Court of Justice .","When provided for in the Statute , ORG may also sit as a full ORG . \u201d","\u201c ORG shall be assisted by CARDINAL Advocates General . Should ORG so request , the ORG , acting unanimously , may increase the number of Advocates General .","It shall be the duty of ORG , acting with complete impartiality and independence , to make , in open court , reasoned submissions on cases which , in accordance with LAW , require his involvement . \u201d","\u201c The Judges and Advocates General of ORG shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence ; they shall be appointed by common accord of the governments of the member GPE for a term of DATE .","DATE there shall be a partial replacement of the Judges and Advocates General , in accordance with the conditions laid down in the Statute of ORG .","The Judges shall elect the President of ORG from among their number for a term of DATE . He may be re - elected .","Retiring Judges and Advocates General may be reappointed . ... \u201d","\u201c ORG shall have jurisdiction to give preliminary rulings concerning","( a ) the interpretation of this LAW ;","( b ) the validity and interpretation of acts of the institutions of the ORG and of the ORG [ ORG ] ;","...","Where such a question is raised before any court or tribunal of a member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .","Where any such question is raised in a case pending before a court or tribunal of a member ORG , against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . \u201d","\u201c The Community shall have legal personality . \u201d","The Statute of the ECJ is in the form of a LAW to LAW . In so far as relevant to the case before ORG , it provides as follows :","\u201c Before taking up his duties each Judge shall , in open court , take an oath to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the ORG . \u201d","\u201c The Judges shall be immune from legal proceedings . After they have ceased to hold office , they shall continue to enjoy immunity in respect of acts performed by them in their official capacity , including words spoken or written .","The ORG , sitting as a full ORG , may waive the immunity .","Where immunity has been waived and criminal proceedings are instituted against a Judge , he shall be tried , in any of the member GPE , only by the court competent to judge the members of the highest national judiciary .","Articles CARDINAL to CARDINAL and LAW on the privileges and immunities of ORG shall apply to ORG , without prejudice to the provisions relating to immunity from legal proceedings of ORG which are set out in the preceding paragraphs . \u201d","\u201c The ORG may not hold any political or administrative office .","They may not engage in any occupation , whether gainful or not , unless exemption is exceptionally granted by ORG .","When taking up their duties , they shall give a solemn undertaking that , both during and after their term of office , they will respect the obligations arising therefrom , in particular the duty to behave with integrity and discretion as regards the acceptance , after they have ceased to hold office , of certain appointments or benefits .","Any doubt on this point shall be settled by decision of the ORG . \u201d","\u201c Apart from normal replacement , or death , the duties of a Judge shall end when he resigns .","Where a Judge resigns , his letter of resignation shall be addressed to the President of the ORG for transmission to the President of the ORG . Upon this notification a vacancy shall arise on the bench .","Save where Article CARDINAL applies , a Judge shall continue to hold office until his successor takes up his duties . \u201d","\u201c A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if , in the unanimous opinion of ORG , he no longer fulfils the requisite conditions or meets the obligations arising from his office . The Judge concerned shall not take part in any such deliberations .","The Registrar of the ORG shall communicate the decision of the ORG to the President of ORG and to the President of the Commission and shall notify it to the President of the ORG .","In the case of a decision depriving a Judge of his office , a vacancy shall arise on the bench upon this latter notification . \u201d","\u201c A Judge who is to replace a member of the ORG whose term of office has not expired shall be appointed for the remainder of his predecessor \u2019s term . \u201d","\u201c The provisions of ORG CARDINAL to CARDINAL shall apply to the Advocates General . \u201d","\u201c No Judge or Advocate General may take part in the disposal of any case in which he has previously taken part as agent or adviser or has acted for CARDINAL of the parties , or in which he has been called upon to pronounce as a member of a court or tribunal , of a commission of inquiry or in any other capacity .","If , for some special reason , any Judge or Advocate General considers that he should not take part in the judgment or examination of a particular case , he shall so inform the President . If , for some special reason , the President considers that any Judge or Advocate General should not sit or make submissions in a particular case , he shall notify him accordingly .","Any difficulty arising as to the application of this Article shall be settled by decision of the ORG .","... \u201d","\u201c The procedure before the ORG shall consist of CARDINAL parts : written and oral .","The written procedure shall consist of the communication to the parties ... of applications , statements of case , defences and observations , and of replies , if any , as well as of all papers and documents in support or of certified copies of them .","...","The oral procedure shall consist of the reading of the report presented by a Judge acting as Rapporteur , the hearing by the ORG of agents , advisers and lawyers and of the submissions of ORG , as well as the hearing , if any , of witnesses and experts .","Where it considers that the case raises no new point of law , the ORG may decide , after hearing ORG , that the case shall be determined without a submission from ORG . \u201d","\u201c In the cases governed ... by LAW ... the decision of the court or tribunal of a member ORG which suspends its proceedings and refers a case to the ORG shall be notified to the ORG by the court or tribunal concerned . The decision shall then be notified by the Registrar of the ORG to the parties , to the member GPE and to the Commission , and also to the ORG or to ORG if the act the validity or interpretation of which is in dispute originates from CARDINAL of them , ...","Within DATE of this notification , the parties , the member GPE , the ORG and , where appropriate , ... the ORG ... shall be entitled to submit statements of case or written observations to the ORG .","... \u201d","In so far as relevant to the present case , the provisions of the ECJ \u2019s Rules of Procedure ( Official Journal of ORG L CARDINAL of CARDINAL July DATE , p. CARDINAL , as amended and corrected ) read as follows :","\u201c CARDINAL . The Advocate General shall deliver his opinion orally at the end of the oral procedure .","After the Advocate General has delivered his opinion , the President shall declare the oral procedure closed . \u201d","\u201c The ORG may , after hearing ORG , order the reopening of the oral procedure . \u201d","In its order of CARDINAL DATE in Case C-CARDINAL\/CARDINAL Emesa Sugar [ DATE ] ECR I-CARDINAL , the ECJ held as follows :","\u201c CARDINAL . In its judgment in GPE v. GPE , cited above , ORG found that the procureur g\u00e9n\u00e9ral \u2019s department at ORG had as \u2018 its main duty , at the hearing as at the deliberations , ... to assist ORG and to help ensure that its case - law is consistent\u2019 ( paragraph CARDINAL ) \u2018 with the strictest GPE ( paragraph CARDINAL ) ; it also considered that \u2018 great importance must be attached to the part actually played in the proceedings by the member of the procureur g\u00e9n\u00e9ral \u2019s department , and more particularly to the content and effects of his submissions . These contain an opinion which derives its authority from that of the procureur g\u00e9n\u00e9ral \u2019s department itself [ in the NORP version , \u2018 minist\u00e8re public\u2019 ] . Although it is objective and reasoned in law , the opinion is nevertheless intended to advise and accordingly influence ORG ( paragraph CARDINAL ) .","The [ NORP ] Court of Human Rights went on to consider that \u2018 the fact that it was impossible for Mr PERSON to reply to them [ the submissions ] before the end of the hearing infringed his right to adversarial proceedings . That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed , even by an independent member of the national legal service [ in the NORP version , \u2018 magistrat ind\u00e9pendant\u2019 ] , with a view to influencing the court \u2019s GPE . Accordingly , the [ NORP ] Court of Human Rights found that this fact in itself amounted to a breach of LAW [ of LAW ] ( paragraph CARDINAL ) ( see also , to the same effect , the judgments of : CARDINAL DATE in PERSON v. GPE , Reports of Judgments and Decisions PERSON , p. CARDINAL , paragraphs CARDINAL to CARDINAL ; DATE in GPE v. GPE , Reports of Judgments and Decisions CARDINAL , p. CARDINAL , paragraphs CARDINAL to CARDINAL ; DATE in PERSON the GPE , Reports of Judgments and Decisions CARDINAL , p. CARDINAL , CARDINAL and CARDINAL ; and DATE in K.D.B. v. the GPE , Reports of Judgments and Decisions DATE , p. CARDINAL , paragraphs CARDINAL and CARDINAL ) .","Emesa takes the view that this case - law applies to the opinion delivered before the ORG by the Advocate General and accordingly seeks leave to reply to it .","As the ORG has consistently held , fundamental rights form an integral part of the general principles of law , the observance of which it ensures ( see , in particular , opinion CARDINAL of DATE [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) . For that purpose , the ORG draws inspiration from the constitutional traditions common to the member ORG and from the guidelines supplied by international treaties for the protection of human rights on which the member GPE have cooperated or of which they are signatories . The LAW has special significance in that respect ( see , in particular , Case C-CARDINAL\/CARDINAL ORG [ DATE ] ORG , paragraph CARDINAL ) .","NORP Moreover , those principles have been incorporated in LAW , according to which \u2018 The Union shall respect fundamental rights , as guaranteed by LAW signed in GPE on CARDINAL DATE and as they result from the constitutional traditions common to the member GPE , as general principles of Community law\u2019 . According to LAW , the ORG is to ensure that this provision is applied \u2018 with regard to action of the institutions , in so far as [ it ] has jurisdiction under the Treaties establishing ORG and under [ the ] LAW [ on NORP Union]\u2019 .","It is also appropriate to recall the status and role of the Advocate General within the judicial system established by LAW and by LAW of ORG , as set out in detail in ORG .","In accordance with Articles CARDINAL and CARDINAL of LAW , ORG consists of ORG and is assisted by Advocates General . LAW lays down identical conditions and the same procedure for appointing both Judges and Advocates General . In addition , it is clear from Title I of LAW of ORG , which , in law , is equal in rank to the LAW itself , that the Advocates General have the same status as the ORG , particularly so far as concerns immunity and the grounds on which they may be deprived of their office , which guarantees their full impartiality and total independence .","NORP Moreover , the Advocates General , none of whom is subordinate to any other , are not public prosecutors nor are they subject to any authority , in contrast to the manner in which the administration of justice is organised in certain member GPE . They are not entrusted with the defence of any particular interest in the exercise of their duties .","The role of the Advocate General must be viewed in that context . In accordance with LAW , his duty is to make , in open court , acting with complete impartiality and independence , reasoned submissions on cases brought before ORG , in order to assist ORG in the performance of the task assigned to it , which is to ensure that in the interpretation and application of the LAW , the law is observed .","Under LAW of LAW of ORG and LAW , the opinion of the Advocate General brings the oral procedure to an end . It does not form part of the proceedings between the parties , but rather opens the stage of deliberation by ORG . It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the ORG or which \u2018 derives its authority from that of the procureur g\u00e9n\u00e9ral \u2019s department [ in the NORP version , \u2018 minist\u00e8re PERSON ( judgment in PERSON v. GPE , cited above , paragraph CARDINAL ) . Rather , it constitutes the individual reasoned opinion , expressed in open court , of a member of ORG itself .","The Advocate General thus takes part , publicly and individually , in the process by which the ORG reaches its judgment , and therefore in carrying out the judicial function entrusted to it . Furthermore , the opinion is published together with the ORG \u2019s judgment .","Having regard to both the organic and the functional link between the Advocate General and the ORG , referred to in DATE of this order , the aforesaid case - law of ORG does not appear to be transposable to the opinion of ORG .","NORP Moreover , given the special constraints inherent in Community judicial procedure , connected in particular with its language regime , to confer on the parties the right to submit observations in response to the opinion of ORG , with a corresponding right for the other parties ( and , in preliminary ruling proceedings , which constitute the majority of cases brought before the ORG , all the member GPE , the ORG and the other institutions concerned ) to reply to those observations , would cause serious difficulties and considerably extend the length of the procedure .","Admittedly , constraints inherent in the manner in which the administration of justice is organised within the ORG can not justify infringing a fundamental right to adversarial procedure . However , no such situation arises in that , with a view to the very purpose of adversarial procedure , which is to prevent the ORG from being influenced by arguments which the parties have been unable to discuss , the ORG may of its own motion , on a proposal from the Advocate General or at the request of the parties , reopen the oral procedure , in accordance with LAW , if it considers that it lacks sufficient information , or that the case must be dealt with on the basis of an argument which has not been debated between the parties ( see , in particular , with regard to the reopening of the oral procedure , the order of DATE in LOC and Others , not published in the ECR , and the judgment of DATE in Case C-CARDINAL\/CARDINAL PERSON and Others [ DATE ] ECR GPE ; the order of DATE in Case C-CARDINAL\/CARDINAL Meng , not published in the ECR , and the judgment of CARDINAL DATE in Case C-CARDINAL\/CARDINAL Meng [ DATE ] ECR ICARDINAL ; the order of DATE in Case C-CARDINAL\/CARDINAL Peterbroeck , not published in the ECR , and the judgment of DATE in Case C-CARDINAL\/CARDINAL Peterbroeck [ DATE ] ECR I-CARDINAL ; the order of DATE in Case PERSON , not published in the ECR , and the judgment of CARDINAL DATE in Case C-CARDINAL\/CARDINAL PERSON [ DATE ] ORG ; and the order of CARDINAL DATE in Case C-CARDINAL\/CARDINAL Verkooijen , not published in the ECR ) .","In the instant case , however , ORG \u2019s application does not relate to the reopening of the oral procedure , nor does it rely on any specific factor indicating that it would be either useful or necessary to do so . \u201d","On DATE Advocate General PERSON delivered an opinion in Case C-CARDINAL\/CARDINAL Government of ORG and Walloon Government v. ORG . It included the following passage ( footnote reference omitted , emphasis added ) :","\u201c CARDINAL . ... I am fully conscious of the fact that , in the present case , CARDINAL member ORG ... has intervened . It would seem desirable for a proper exploration of the elements that I have canvassed above to take place against the background of fuller participation from the member GPE and ( as a corollary ) a more developed presentation by the Commission . It might be that , on more detailed examination , the prima facie case that I have outlined above is refuted .","The ORG would not , I suspect , wish to decide such a fundamental point in the present case ( unless , of course , it decides to reopen the oral procedure and invite member PERSON to make their views on this issue known ) ; and I do not see an overriding need for it to do so . ... \u201d","Article CARDINAL of the Habitats Directive provides :","\u201c CARDINAL . For special areas of conservation , member GPE shall establish the necessary conservation measures involving , if need be , appropriate management plans specifically designed for the sites or integrated into other development plans , and appropriate statutory , administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in GPE I and the species in GPE present on the sites .","Member GPE shall take appropriate steps to avoid , in the special areas of conservation , the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated , in so far as such disturbance could be significant in relation to the objectives of this Directive .","Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon , either individually or in combination with other plans or projects , shall be subject to appropriate assessment of its implications for the site in view of the site \u2019s conservation objectives . In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph CARDINAL , the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and , if appropriate , after having obtained the opinion of the general public .","PERSON If , in spite of a negative assessment of the implications for the site and in the absence of alternative solutions , a plan or project must nevertheless be carried out for imperative reasons of overriding public interest , including those of a social or economic nature , the member ORG shall take all compensatory measures necessary to ensure that the overall coherence of DATE is protected . It shall inform the Commission of the compensatory measures adopted .","Where the site concerned hosts a priority natural habitat type and\/or a priority species , the only considerations which may be raised are those relating to human health or public safety , to beneficial consequences of primary importance for the environment or , further to an opinion from the ORG , to other imperative reasons of overriding public interest . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105448","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2011,"docname":"SHEIKH v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Miss PERSON , is a NORP national who was born in DATE and lives in GPE . She was not legally represented .","NORP The applicant is a solicitor who joined the firm ORG as an assistant solicitor in DATE . In DATE she became the sole proprietor and practitioner in the practice . DATE , she was the subject of CARDINAL successful complaints to ORG , of which CARDINAL related to overcharging .","NORP In DATE , ORG commenced an inspection of and investigation into ORG On DATE the head of forensic investigations at ORG wrote to the applicant stating that the books of ORG were to be investigated and that officers of ORG would be attending her office for that purpose . The letter said that it was not the policy of ORG to authorise staff to disclose the reasons for inspections . The applicant was therefore not advised of the reasons for the inspection .","CARDINAL different departments of ORG were involved in the investigation : forensic investigations , which dealt with concerns about compliance with LAW ; and multiple complaints investigation , which dealt with all other complaints . The inspection commenced with a visit to the applicant \u2019s office on DATE , which lasted DATE . CARDINAL further visits took place , the last on DATE . ORG inspectors from the multiple complaints investigation department also wrote CARDINAL lengthy letters to the applicant asking for further information in connection with the investigation . Although the applicant co - operated with the investigators in attendance at her offices , she did not reply in writing to any of the letters .","Following the final visit , the investigative officers compiled a report on the applicant \u2019s practice , intended for internal consideration within ORG , in order to determine whether any of the powers contained in LAW DATE ( \u201c the DATE LAW ) should be exercised in relation to ORG The report ( \u201c the ORG \u201d ) was prepared in the form of a letter dated DATE from the head of the forensic investigations department to the head of investigation and enforcement in ORG . ORG was CARDINAL pages long , with CARDINAL pages of appendices .","On DATE a member of the multiple complaints investigation department wrote a CARDINAL-page letter to the applicant . She did not enclose a copy of ORG at that time . The letter set out allegations of professional failures by the applicant and invited her to reply by CARDINAL DATE . The allegations related generally to alleged failures to comply with provisions of LAW ( see paragraph CARDINAL below ) .","The applicant , despite being reminded in the letter that she had a professional obligation to reply to ORG , did not reply .","On DATE ORG wrote to the applicant again , this time enclosing ORG . She was asked to comment on the report by DATE . A covering letter contained several allegations of breaches of the Solicitors\u2019 Accounts Rules ( see paragraphs QUANTITY below ) and invited comments on these allegations . In addition , the letter stated that the investigators were satisfied that the applicant had failed to comply with provisions of those rules , and that therefore the power to intervene ( essentially , to take control of the applicant \u2019s practice \u2013 see paragraphs CARDINAL below ) was exercisable .","On TIME DATE the applicant received a telephone call from CARDINAL of the investigators telling her that there would be a large and important parcel waiting for her at her office DATE and that she should collect it and read it in order to reply by DATE . The applicant told the investigator that she was going on holiday with her mother to GPE the following day and that she could not deal with a large communication from ORG by DATE . She accordingly asked for an extension of time . No extension was granted . The applicant went on holiday without collecting the parcel . Upon her return , the parcel was waiting for her . However , she did not open it . She subsequently explained that the reason she did not open it was \u201c because she could not deal with it \u201d .","On an unknown date , ORG was forwarded to ORG of ORG ( \u201c the Panel \u201d ) . It was accompanied by a recommendation that stringent and immediate conditions imposed on the applicant \u2019s practising certificate would be sufficient to protect the public and the conclusion that intervention was not necessary , although the matter was \u201c finely balanced \u201d .","On DATE the applicant received funds in the sum of GBP CARDINAL in respect of a mortgage on her own home . As she intended to invest the funds in a client \u2019s business , she instructed her secretary to pay the funds into the firm \u2019s client account , intending to deal with the necessary paperwork later . However , her secretary instead credited the firm \u2019s office account . The applicant was not made aware of the error .","The Panel met on DATE . Following consideration of ORG , the ORG decided that there should be an intervention in the applicant \u2019s practice . It adopted several resolutions , the most significant of which being :","\u201c CARDINAL . The Panel were satisfied that grounds for intervention existed under paragraph CARDINAL(CARDINAL)(a)(i ) of Part I of Schedule CARDINAL Solicitors Act DATE ( as amended ) , namely that the Panel were satisfied that they had reason to suspect dishonesty on the part of PERSON Sheikh practising as ORG ... in connection with her practice as a solicitor .","The ORG were also satisfied that grounds for intervention existed under paragraph CARDINAL ) of Part I of Schedule CARDINAL Solicitors Act DATE ( as amended ) namely that PERSON Sheikh failed to comply with LAW .","The Panel balanced the need to exercise powers of intervention in order to protect the public and the serious consequences of intervention for a solicitor . The Panel were satisfied that it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in ORG dated DATE .","The ORG were further satisfied that it was necessary to exercise powers of intervention in order to protect the public .","ORG to intervene into Anal PERSON \u2019s practice at ORG ... \u201d","No particulars were given in the resolution of why the Panel suspected dishonesty on the part or the applicant or why it concluded that she had breached the Solicitors\u2019 Accounts Rules .","The Council of the Law Society also passed resolutions providing that the applicant \u2019s practice monies vest in FAC and that the applicant be required to deliver practice documents to its nominated agent . In accordance with the applicable legislation , the applicant \u2019s practising certificate was automatically suspended ( see paragraph CARDINAL below ) .","That afternoon a representative of ORG called ORG to speak to the applicant but she was out of the office . He faxed a copy of the intervention resolution to her at her office , informing her that the intervention team would arrive at TIME and that an intervention had been ordered as a result of breaches of the Solicitors\u2019 Accounts Rules , with reference to paragraphs CARDINAL and CARDINAL of Schedule CARDINAL to LAW ( see paragraphs CARDINAL below ) .","On TIME the applicant did not go to her office as she had client meetings scheduled . However , her secretary called her to inform her of the fax and ORG pending visit . According to the applicant , she was not made aware that an intervention had been ordered . She asked her secretary to reschedule the visit as she did not intend to be in the office that day . Her secretary telephoned ORG to relay the message . She was advised that it was imperative that the applicant attend the meeting that TIME and that her practising certificate had in any case been suspended . She then called the applicant back and explained the position . The applicant made arrangements to go immediately to her office .","At some point during the second phone call , or possibly during a third phone call with her secretary prior to arriving at the office , the applicant instructed her secretary to transfer the GBP CARDINAL from the client account to her personal bank account and to sign the transfer form on the applicant \u2019s behalf . The secretary effected the applicant \u2019s instructions , with the result that the client account was debited in the sum of GBP CARDINAL , leaving it heavily overdrawn .","In due course the intervention team arrived at the applicant \u2019s office to commence the intervention . The applicant was there to meet them and asked for , and was given , time to take legal advice before the intervention proceeded . She instructed a well - known firm of solicitors . It appears that they did not recommend that she take immediate action to halt the intervention but advised her to exercise her statutory right of challenge under LAW ( see paragraph DATE below ) . She permitted the intervention team to have access to the LOC . She had still not opened the parcel sent to her by ORG on DATE ( see paragraphs CARDINAL above ) .","On DATE the applicant issued an application to ORG to request the withdrawal of the intervention under paragraphs CARDINAL ) and CARDINAL(CARDINAL ) of Schedule CARDINAL to LAW ( see paragraphs CARDINAL below ) . Realising that it could be some time before the matter was heard by ORG , the applicant \u2019s solicitor wrote CARDINAL letters to ORG proposing measures to allow the applicant to continue to have conduct of a limited number of specific matters on conditions intended to protect clients against the risk perceived by ORG to exist . CARDINAL of the conditions was that she would not issue any bills to clients . ORG refused to accommodate the requests ; no reasons were provided for the refusal . However , in accordance with usual practice where a challenge to an intervention is lodged with ORG , ORG put in place arrangements to mitigate the damage to the goodwill in the practice pending the outcome of proceedings . An experienced firm of solicitors took possession of the practice and files and passed to other solicitors only those files requiring immediate action which the applicant herself was not able to take , which amounted to CARDINAL per cent of her files and the client and office accounts were frozen .","On or DATE the applicant sought case management directions . In particular , she sought directions for a speedy trial . ORG did not oppose the request . The applicant also sought , by way of interim relief , an order for the restoration of her practising certificate . However , the application was incompetent as it ought to have been made , in the first instance , to ORG itself ( see paragraph CARDINAL below ) .","On DATE the application for case management directions came before the court , which made an order for an expedited trial . It also considered the arrangements put in place by ORG to mitigate the effect of the intervention pending the resolution of the applicant \u2019s challenge ( see paragraph CARDINAL above ) . The applicant did not challenge these arrangements .","The applicant subsequently applied to ORG under section CARDINAL(CARDINAL ) of LAW to have her practising certificate restored ( see paragraph CARDINAL below ) . The outcome of the application was that ORG granted the applicant a new practising certificate for DATE with conditions to protect her clients , namely that she did not act as sole principal , as a partner or as a salaried partner . She was therefore unable to resume ORG practice .","The application for withdrawal of the intervention came before ORG on DATE and the trial lasted DATE . On DATE , FAC directed that the intervention be withdrawn , reserving his full judgment until DATE . Following Park J \u2019s notification of his decision on DATE , the intervention was ordered to be withdrawn by order of the same date . By order of DATE , all the conditions , apart from CARDINAL preventing the applicant from seeking the payment of fees for probate work without the prior approval of ORG , were lifted from the applicant \u2019s practising certificate as of DATE .","NORP In his subsequent written judgment , GPE explained that he had chosen to announce his decision before handing down judgment because DATE which passed was potentially damaging to the applicant even if her application succeeded in the end . In short , GPE reasons for ordering the withdrawal of the intervention were that he did not think that there was reason to suspect the applicant of dishonesty and that while he accepted that there had been some breaches of the Solicitors\u2019 Accounts Rules and other aspects of the firm \u2019s practice about which ORG could legitimately feel concern , he did not think that they were serious enough to merit intervention .","Park J noted that where a decision to intervene resulted in the vesting of practice monies in ORG , the delivery up of practice documents and the suspension of the solicitor \u2019s practising certificate , the consequences were very severe for the solicitor and , in the case of a sole practitioner like the applicant , it effectively meant the total destruction of the practice . However , he accepted that the powers accorded to ORG under LAW were both valuable and desirable to ensure public confidence in the honesty of solicitors and to ensure a quick and effective response in cases where there were grounds to suspect dishonesty on the part of a solicitor . He noted that it was possible , in the applicant \u2019s case , that the intervention action which ORG had already taken might already have done substantial damage to the practice of her firm , but considered that such a consequence might be a risk which had to be accepted in the wider interests of preserving public confidence in the solicitors\u2019 profession as a whole . However , he criticised the unexplained rejection by ORG applicant \u2019s solicitor request that she be allowed to continue some limited practice under conditions ( see paragraph CARDINAL above ) .","Concerning the scope of the court \u2019s review under paragraphs CARDINAL ) and CARDINAL(CARDINAL ) of Schedule CARDINAL to LAW ( see paragraphs CARDINAL below ) , GPE considered that the jurisdiction of the court was not to be exercised on grounds analogous to judicial review . Accordingly , he was not required to limit his consideration of the application to the question whether the notice was one which no reasonable body in the position of ORG could have decided to serve but was able to decide himself whether the notice of intervention should be allowed to stand . In this respect , LAW own view that the circumstances merited intervention was a relevant factor for consideration . PERSON also emphasised that the relevant legislation referred to a \u201c suspicion \u201d of dishonesty and it was therefore not necessary for a positive finding of dishonesty to be made . Finally , the court was not limited to reviewing the evidence before FAC at the time when the decision was made to intervene but could consider the whole of the evidence , including incidents or discoveries post - intervention , in deciding whether to withdraw the intervention . In this regard , he noted :","\u201c ... [ the applicant ] acknowledges that she had been deficient in providing explanations to ORG officers in the course of the inquiries which preceded the decision to intervene . She can , however , put before me evidence which she failed to present to FAC at the earlier stage , and submit ( as Mr Treverton - Jones has done on her behalf ) that , even if ORG which decided to intervene could understandably have thought that there was reason to suspect dishonesty given the absence then of answers from her to questions about matters which had caused the ORG \u2019s officers concern , the position now is different : I should , taking account of her evidence , conclude that there is no reason to suspect dishonesty in any respect which could rationally justify the drastic ( and effectively terminal ) step of intervention . \u201d","He then went on to consider the events which preceded the intervention . Regarding the letter of DATE , he noted that the letter requested comments on CARDINAL different alleged failures . In general they were categorised as failures to comply with particular provisions of the Solicitors\u2019 Practice Rules and with associated principles in the Guide to ORG . He continued :","\u201c As far as I can see there is no reference to the Solicitors\u2019 Accounts Rules in it , nor do I find anything which could be regarded as an allegation of actual dishonesty on [ the applicant \u2019s ] part . \u201d","Similarly , GPE observed that he could not find any specific allegation of dishonesty in the letter of DATE enclosing ORG .","Park J noted the absence of any details as to why the ORG had reached its conclusions and ordered the intervention , saying :","\u201c ... In this particular case I consider that the absence of particulars causes considerable difficulty , especially as regards the finding of suspected dishonesty . What precisely was the dishonesty , and what precisely were the grounds which raised a suspicion of it ? The ORG does not say . This is , I understand , in line with standard practice for Law Society Panels . In normal cases ( which in my opinion this case is not ) the absence of particulars in a ORG \u2019s finding of grounds to suspect dishonesty may not particularly matter , because the nature of the dishonesty and of the grounds of suspicion is perfectly obvious to anyone ... In all the earlier cases of interventions which I was shown the alleged dishonesty was clear for all to see . Similarly , in so far as the intervention may also have been founded on breaches of the Solicitors\u2019 Accounts Rules , the breaches were equally obvious , and almost always consisted of solicitors either not having client accounts at all ... or taking money off client account and using it for private purposes or for their own professional purposes ( like reducing the office overdraft or paying the office rent ) in circumstances where the taking of the money was prohibited ... Furthermore as far as I can ascertain , although the members of the ORG in Miss PERSON \u2019s case presumably did know what sort of dishonesty they suspected and what their grounds for suspecting it were , nobody else in the Law Society knew . The Law Society officers [ involved in the investigation and preparation of ORG ] who gave evidence before me ... did not know ...","This has caused substantial difficulties in the case , and in my view has had an unfortunate effect on the nature of the proceedings . Miss PERSON did not know any detail of what sort of dishonesty was being alleged against her , and in her first witness statement could do little more on this aspect of the case than to say that she utterly refuted any suggestion that there was reason to suspect dishonesty on her part . She has always accepted that she failed to reply to correspondence and that there have been some technical infringements of LAW , but she denies any kind of dishonesty . Since she does not know what specific kind of dishonesty the Panel suspected , she has great difficulty in doing more than making a general denial . Her legal team in this case ... could only speculate as to the case which they had to meet . In a criminal case an indictment which merely charged that there was reason to suspect dishonesty would never survive . The same would apply to a pleading in a civil claim . \u201d","He noted that even ORG legal team were unaware of the reasons for the ORG \u2019s suspicion of dishonesty and concluded :","\u201c In the circumstances it seems to me that [ counsel for ORG ] have had to do the best they can to find in the extensive documentation in the case any features which , as it seems to them , might have given rise to a suspicion of dishonesty , to present them to me as giving rise to such a suspicion , and to cross - examine Miss PERSON and PERSON [ an ORG staff member ] in a way which entails alleging dishonesty in numerous different respects . \u201d","He noted that the applicant \u2019s case had not come before the court quickly , and that it had not proceeded speedily . He continued :","\u201c ... I may be wrong , but I think that it was primarily ORG which had problems with an earlier commencement [ of the trial ] . \u201d","As to the breaches of the Solicitors\u2019 Accounts Rules , GPE noted that , unlike in virtually all other cases of interventions of which he was aware , there was no evidence that any client money had gone missing . Further , regarding the allegations of dishonesty , he observed that the applicant had been searchingly cross - examined for DATE and that she had not remotely struck him as the \u201c dishonest , grasping , incompetent \u201d implied by ORG multiple attacks upon her .","Park J expressed doubt at the proposition by counsel for ORG that , once intervention had been commenced by ORG , the subsequent review by ORG of whether to withdraw the intervention could take into consideration all matters relating to the solicitor \u2019s conduct , even those which , under LAW , did not justify intervention . He concluded :","\u201c ... I accept that I should look at the evidence as it exists when the case is presented to me , and that I am not limited to considering only the materials which were before the ORG when , DATE previously , it resolved to intervene ... Thus , if there is new evidence of the existence of reasons to suspect dishonesty or of breaches of the Solicitors\u2019 Accounts Rules , I can certainly take account of it . It is far from clear , however , that I should take account of new evidence ( or for that matter old evidence ) of alleged shortcomings on the part of Miss PERSON which do not bear on any suspicion of dishonesty or on breaches of the Solicitors\u2019 Accounts Rules ... [ A ] Panel can not resolve that a practice be intervened upon on the basis of a general opinion that the practice is unsatisfactory , and that it will be in the public interest for ORG to intervene . That being so , I am unconvinced that a general opinion of that nature should carry any substantial weight when it comes to deciding whether the court should order an intervention to be withdrawn . Suppose that it had appeared to the Panel that there was no reason to suspect dishonesty and that , although there had been breaches of LAW , they were not themselves of the sort which could justify the drastic step of intervention . Could the ORG nevertheless have decided that ORG should intervene in ORG because there were other aspects of the firm \u2019s practice which the Panel considered to be unacceptable ? I think not . Is it , therefore , any different at the stage when the court is considering whether an intervention should be withdrawn ? Again , I think not ... \u201d","Park J considered in some detail the matters raised in ORG . He concluded in relation to each that they were insufficiently serious to merit intervention . He further considered the matters raised by ORG as regards the applicant \u2019s alleged dishonesty and concluded that the evidence before him supported no such suspicion . He noted that some of the matters to which ORG referred might be relevant to any disciplinary proceedings which could be taken against the applicant , but were not relevant to the question of intervention . As to the failure of the applicant to respond to ORG letters , NORP noted that the letters were very demanding and that the applicant was a busy sole practitioner with clients to look after and without much in the way of high grade supporting staff in her office . He considered that she would have been unable to deal with the letters in the detail which FAC required without neglecting her current clients and risking failing in her duty to them .","In relation to the pre - intervention material put before him , GPE concluded :","\u201c On the basis of matters as they stood before the intervention ( and taking account of evidence which I had of such matters , whether the ORG had it or not ) , I believe that the intervention should be set aside . \u201d","He reviewed the events of CARDINAL and DATE and accepted the applicant \u2019s account that she had been unaware that an intervention would take place . He continued :","\u201c ... To an extent her lack of awareness of what might happen was her own fault . I have described ... how she never even opened the parcel which had arrived at the office on DATE and which contained , among other things , ORG letter of DATE . If she had opened the parcel and read that letter it would have put her clearly on notice that an intervention was a possibility . \u201d","In respect of post - intervention issues , the only matter considered to be of significance by GPE was the transfer , on TIME of the imposition of the intervention , of GBP CARDINAL from the client account to the applicant \u2019s personal bank account ( see paragraph CARDINAL above ) . GPE found that the applicant was not aware , at the time when she instructed the transfer , that there had been an intervention . However , he accepted that she gave the instructions to her secretary because of a general feeling that she did not want the money to be in the client account when ORG arrived . He continued :","\u201c The more general point is that I can not find it in me to condemn Miss PERSON for wanting to get the money out of an ORG bank account before ORG arrived . She did not ( in my view ) know that ORG was coming to effect an intervention into her practice , but after the second telephone call from [ her secretary ] she apprehended that something of a serious nature was quite likely to happen , and she must have felt deep concern about what might happen to this large sum of money which she had borrowed personally DATE before . It must have been a desperate anxiety to her that , because the money had gone into an ORG bank account , it might become entangled with the problems which it seemed that she was going to have with ORG . Feelings of that nature would surely have been enhanced by the reflection that the money might be regarded as still really being hers and not as belonging to a client yet . She was of course under the erroneous impression that the money was being held in the firm \u2019s client account ... She did not realise that the money was in fact in the firm \u2019s office account , but I comment that it was not appropriately held there . LAW , if ( as I suspect was correct ) it did not yet belong to LOC but still belonged to PERSON , did not belong to her in her capacity as the sole proprietor of the practice . On DATE the \u00a3 MONEY did not really have anything to do with the practice . She had just borrowed it on a mortgage of her private house , and it was intended to be invested in a commercial project in which she ... would be participating as an investor and not in her solicitor capacity .","In retrospect Miss PERSON might have been better advised just to leave the money alone and wait fatalistically to find out what was going to happen to it , but I can well understand that it did not seem that way to her at the time . I repeat that I can not find it in me to say that wanting to remove the money from ( as she thought ) the ORG client account was so objectionable a thing that I should leave in place an intervention upon her practice which otherwise I would direct to be withdrawn . \u201d","The applicant \u2019s remaining files and all monies from the client and the office accounts , plus interest , were subsequently returned to her . She resumed practice at ORG","On DATE ORG was given permission to appeal to ORG on CARDINAL grounds : first , that GPE had inappropriately assessed whether the applicant had in fact been dishonest , rather than addressing whether the statutory test of suspicion of dishonesty had been met ; second , that FAC had applied too high a threshold as regards whether the breaches of the Solicitors\u2019 Accounts Rules could justify an intervention ; and third , that , in exercising his discretion as to whether to withdraw the intervention , NORP had wrongly failed to take into account other matters relating to the applicant \u2019s conduct which were not directly related to her alleged dishonesty and breaches of the Solicitors\u2019 Accounts Rules . The judgment granting leave noted that FAC was not minded to re - intervene in the applicant \u2019s practice at that time but was considering disciplinary proceedings against her . The appeal was heard DATE .","NORP On DATE , ORG handed down its judgment . As regards the scope of the appeal proceedings , PERSON , giving judgment for the court , noted :","\u201c ORG has made it clear that , whatever the outcome of these appeals , it does not seek to re - intervene in [ the applicant \u2019s ] practice on the basis of the intervention notices served in DATE . Its concern is that the findings of fact made by the judge \u2013 almost all of which it regards as wrong \u2013 present serious difficulties in relation to the exercise of its powers to impose conditions on [ the applicant \u2019s ] practising certificate . Put shortly , the ORG fears that those findings of fact , if not reversed , make it impossible for it to impose the conditions on [ the applicant \u2019s ] practising certificate which it considers necessary for the protection of the public . It is concerned , also , that it may not be able to go behind those findings of fact in disciplinary proceedings against [ the applicant ] in which it may wish to allege actual dishonesty . And , further , the ORG is concerned that the judge \u2019s approach to the issues which were before him in this case gives rise to uncertainty as to the proper scope of the summary procedure which ORG must have intended should follow from an application to withdraw under paragraphs CARDINAL ) and CARDINAL(CARDINAL ) of schedule CARDINAL to the DATE Act : uncertainty which , unless resolved , will lead to problems in future cases ... \u201d","ORG considered the various matters relied upon by ORG before ORG as evidence that continued intervention was justified . As regards the allegations of breaches of LAW , he reached different conclusions from GPE as to the honesty of the applicant in her dealings with the client account . In particular , he commented on the failure of GPE to deal with certain anomalies as regards the applicant \u2019s charging practice :","\u201c For my part , I find it surprising that the judge was able to attribute [ certain aspects ] of the ORG \u2019s complaint ... to \u2018 GPE and \u2018 an error of judgment\u2019 without a more rigorous analysis of the material which had led the ORG to take the view that those matters gave rise to suspicion of dishonesty . It is , I think , difficult to avoid the conclusion that he did so because he had already persuaded himself , from his observation of Miss PERSON and [ her employee ] as witnesses , that they were not dishonest ; so that matters which , objectively , were capable of giving rise to suspicion of dishonesty had to be explained in a way which avoided a finding of dishonesty ... \u201d","He further highlighted the failure of GPE to explain why , in relation to CARDINAL particular matter , he had rejected ORG submission that client funds had indeed gone missing contrary to his general finding that the applicant \u2019s case did not involve missing client funds . PERSON pointed to various other aspects of ORG complaints concerning the applicant \u2019s conduct in respect of client funds and charging which , in his view , had not been fully addressed by PERSON He referred to GPE observation that a client benefitted from clear protections , notably the possibility of requiring the solicitor to obtain a remuneration certificate from ORG where he considered that he was being overcharged by his solicitor , and that intervention was therefore not required in such circumstance . He concluded :","\u201c The Law Society submits that that is too narrow a view of the circumstances in which it may be appropriate to use its intervention powers . It points out that an honest solicitor should be endeavouring to charge no more than he ( or she ) believes is due ... I agree : a fortiori where the solicitor , as sole executor , is himself ( or herself ) the client [ as in a number of the examples in the applicant \u2019s case ] , it seems to me that evidence of persistent and deliberate overcharging in probate matters of that nature might well justify intervention on the basis of suspected dishonesty . \u201d","As to the transfer of the GBP CARDINAL ( see paragraph CARDINAL above ) , PERSON agreed with ORG that at the time she ordered the transfer , the applicant did not know of the intervention . However , like GPE , he found that she had , nonetheless , realised that the impending visit of ORG officials was more serious that just another inspection . He concluded that in the circumstances , the applicant must have known that intervention was a real possibility , and that she had for that reason transferred the money . He further considered that there was no evidence to allow GPE to conclude whether beneficial ownership of the money remained with the applicant . In light of the instructions that she had given to her secretary , PERSON considered that she could not claim that she thought it was still her money . That the applicant had requested her secretary to sign the bank transfer form on her behalf was a clear attempt to deceive the bank . In the circumstances it was not difficult to understand why ORG took the view that the incident gave rise to particular concern as to the applicant \u2019s fitness to carry on her practice . He noted :","\u201c ... What took place is a significant demonstration of the way in which this solicitor was prepared to act in the face of what she must have seen as an impending ( if not actual ) crisis in her practice . She was prepared to act in a way which \u2013 as she must have appreciated and intended \u2013 involved a deception . \u201d","PERSON disagreed with GPE approach to the question whether the intervention notices should be withdrawn . In his view , the correct approach was to look at the matter as a whole and in this regard , the conduct of the solicitor at the time of , and immediately following , intervention could well affect the way in which pre - intervention conduct should be viewed . In the applicant \u2019s case , her conduct in relation to the GBP CARDINAL demonstrated that she was willing to deceive and GPE ought to have asked himself whether his impression of her as a witness required re - evaluation in the light of her willingness to deceive in relation to that transfer .","PERSON referred to the distinction between an application to the court to withdraw the intervention ( as in the present case ) and a challenge to the use by ORG of its intervention powers :","\u201c Plainly , if there is a challenge to the exercise of the intervention powers , the court will need to ask itself whether the grounds under Part I of schedule CARDINAL to the DATE Act upon which the ORG relied at the time of the resolution to intervene were made out on the basis of the information available ( or , perhaps , reasonably available ) to the Society at that time . If that question is answered in the negative , then ( as it seems to me ) the resolution under paragraph CARDINAL(CARDINAL ) is of no effect and notices served under paragraph PERSON ) or CARDINAL ) are \u2018 fundamentally NORP ... That is because the powers under Part II of schedule CARDINAL are exercisable only in circumstances within Part I. So , if the ORG is to exercise intervention powers in reliance on paragraph CARDINAL ) , the ORG must have reason to suspect dishonesty at the time when it passes the resolution under paragraph CARDINAL(CARDINAL ) or serves the notice under paragraph CARDINAL(CARDINAL ) .","Cases in which there is a challenge to the validity of the resolution under paragraph CARDINAL(CARDINAL ) or to the service of intervention notices are rare . Where the ORG relies on paragraph CARDINAL ) of schedule CARDINAL , the solicitor may well find it impossible to contend that , on the material available to the FAC at the time when the resolution was passed and the intervention notices served , the ORG did not have reason to suspect dishonesty . That was the position in the present case . And it is pertinent to keep in mind that , in many cases ( as in the present case ) , the ORG will rely , in addition , on paragraph CARDINAL ) ( breaches of the accounts rules ) and will have given a notice under paragraph CARDINAL ) \u2013 thereby providing an opportunity for challenge in advance of intervention . In such cases a challenge to the validity of the resolution under paragraph CARDINAL ) or to the service of intervention notices on the grounds that the condition in sub - paragraph ( a ) was not met will serve little purpose : the ORG will be able to rely ( in relation to validity ) on sub - paragraph ( c ) . In such cases the solicitor will usually focus his ( or her ) submissions on seeking to persuade the court that , whether or not the ORG had reason to suspect dishonesty on the material available to it at the time , the court should hold , on the basis of additional material deployed at the hearing of the application under paragraph CARDINAL ) , that suspicion of dishonesty has been dispelled . That , again , was the position in the present case .","What is not open to doubt is that , absent a challenge to the validity of the resolution under paragraph CARDINAL(CARDINAL ) of schedule CARDINAL or to the service of intervention notices , the single issue for the court on an application under paragraphs CARDINAL ) or CARDINAL(CARDINAL ) is whether the notices should be withdrawn ... \u201d","The sole issue for the court , therefore , in the present case being whether the intervention notices should be withdrawn , PERSON noted :","\u201c In addressing that question ... the court must , indeed , weigh the risks of re - instating the solicitor in his ( or her ) practice against the potentially catastrophic consequences to the solicitor ( and the inconvenience , and perhaps real harm , to his or her existing clients ) if the intervention continues . In weighing the risks of re - instatement the court must have regard to the views of ORG as the professional body charged by statute with the regulation of solicitors ... and as the body whose members are obliged , through the compensation fund , to underwrite those ... In a case where the ORG has taken , and continues to take , the view that there are reasons to suspect dishonesty on the part of the solicitor , the court may well need to address those reasons in the context of weighing the risks of re - instatement ; although ... that will not always be the case . It is important to keep in mind that ( in cases where there is no challenge to the validity of the resolution or to the service of the notices ) there is no free - standing requirement for the court to decide whether there are grounds for suspecting dishonesty ; a fortiori , no requirement for the court to decide whether the solicitor is or has been dishonest . The issue arises ( if at all ) in the context of deciding whether the intervention needs to continue . \u201d","Accordingly , all matters could be taken into account in reaching the decision whether to withdraw the intervention , including conduct falling outside the statutory grounds for its original imposition , such as the applicant \u2019s poor regulatory history and her failure to respond to proper requests for information from ORG . PERSON considered that ORG had erred in seeking to determine whether or not the applicant was dishonest as the question to be decided was simply whether the suspicion of dishonesty had been dispelled , and PERSON was satisfied that it had not , bearing in mind the serious inconsistencies between the applicant \u2019s oral evidence at the trial on the one hand and the answers which she had given at interview , the explanations in her witness statements and the documentary material on the other hand .","Finally , as regards ORG criticism of ORG approach to whether intervention should continue , PERSON found :","\u201c ... First , as it seems to me , past regulatory history is plainly relevant to a consideration whether it is realistic to think that future compliance can be enforced by regulatory powers short of intervention . The ORG was entitled to take the view that the history of successful complaints in relation to Miss PERSON \u2019s conduct of probate matters demonstrated that there could be no basis for confidence that ( absent intervention ) her practice in relation to such matters could be altered by tighter regulation .","Second , on an application under paragraph CARDINAL ) of schedule CARDINAL , the court is required to have regard to all matters before it : it is not confined to the grounds which led to the exercise of the intervention powers ... As I have sought to explain , the court \u2019s task on an application under paragraph CARDINAL ) of schedule CARDINAL is not constrained by the statutory grounds on which the ORG can exercise intervention powers .","Third , on an application under paragraph CARDINAL ) which does not include a challenge to the validity of the resolution under paragraph CARDINAL ) of schedule CARDINAL to LAW or to the service of intervention notices , past \u2018 misconduct\u2019 is relevant if , and only in so far as , it informs an assessment of future risk ... The question , in each particular case , is whether the experience of past conduct should lead to the conclusion that the risks of reinstatement are , or are not , acceptable . \u201d","The court made the limited orders sought by ORG regarding the lifting of limitations on its ability to impose conditions on the applicant \u2019s practising certificate .","PERSON also commented on the intervention procedure and the possibility to challenge an intervention . He noted that it was not in doubt that intervention in a solicitor \u2019s practice , without advance notice , was likely to have the most serious consequences for the solicitor . However , ORG had provided the solicitor with a summary process by which the matter could be brought before the court and had imposed short time limits within which that process had to be commenced . He observed that in LAW ( see paragraphs CARDINAL - CARDINAL below ) ORG had rejected an argument that the intervention procedure was incompatible with the solicitor \u2019s Convention rights , on the basis that the court \u2019s power to consider whether a fair balance had been struck between the demands of the general interest of the community and the protection of the individual \u2019s fundamental rights met the requirements of LAW No . CARDINAL . However , he continued :","\u201c ... it is clear that , unless the matter can be determined by the court within a short time of the intervention , the solicitor is likely to be denied an effective remedy . That is because the consequences of intervention \u2013 if the intervention continues for more than a short time DATE are likely to be irreversible . The solicitor \u2019s clients will have to take their affairs elsewhere ; the staff will have found other employment ; and the practice will be destroyed in any event . \u201d","He referred to GPE criticism of the resolution of CARDINAL DATE on the basis that it failed to disclose the reasons which had led the Panel to decide that intervention notices should be served , and noted :","\u201c ... The true vice , in my view , is that the reasons which were disclosed \u2013 \u2018 it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in ORG dated DATE were stated in so general and unspecific terms . Disclosure of reasons in those terms is calculated to make it difficult for the solicitor to know and address the real concerns which had led to the exercise of intervention powers . The ORG should , I think , give thought to the need for Panel resolutions to identify , with much more specificity than in this case , the reasons which ( in the ORG \u2019s view ) make intervention necessary . If those reasons are not identified at an early stage , there is a danger that the solicitor will be denied the effective protection which ORG plainly intended a summary process to provide .","There will , of course , be many cases in which the solicitor who has suffered intervention will be in no doubt as to the ORG \u2019s concerns . And , as I have said , there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds . But , in cases where , although the solicitor knows what material was before the Panel , there is genuine doubt as to the matters which the ORG regards as sufficiently serious to justify intervention , it seems to me that the court should be ready to assist DATE on an early application for directions following the issue of an application under the schedule CARDINAL procedure \u2013 by requiring the ORG to state the grounds upon which ( on the material then known to it ) the application will be resisted . Such a statement would enable the solicitor to address the ORG \u2019s concerns in a focussed response . And , in the light of that response , the ORG can explain to the court why it takes the view ( if it does ) that the concerns have not been met .","I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro - active role on applications under schedule CARDINAL to LAW than hitherto ; and that the need for an early determination of such applications will place demands on the court \u2019s resources which it may be difficult to meet . But , as it seems to me , the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the LAW requires and which LAW was plainly intended to provide . \u201d","The applicant applied for leave to appeal to ORG . In her petition for leave to appeal , she identified as a matter of general public importance requiring examination by ORG the question whether the intervention provisions in LAW were compatible with the Convention . ORG refused the applicant \u2019s request for leave to appeal on CARDINAL DATE .","On DATE a second intervention was effected into the applicant \u2019s practice . Her ORG challenge in respect of that intervention was dismissed .","Disciplinary proceedings against the applicant before ORG followed . The case was heard on DATE and on DATE the findings of the tribunal resulted in the applicant being struck off as a solicitor .","ORG is the governing body of the solicitors\u2019 profession . It has a regulatory function and regulatory powers under LAW DATE . Under LAW of LAW , ORG is given the power to intervene in a solicitor \u2019s practice in circumstances specified in Part I of Schedule CARDINAL to the LAW by exercising any or all of the powers set out in Part II of Schedule CARDINAL to the LAW .","Paragraph CARDINAL(CARDINAL ) of Part I to Schedule CARDINAL of the LAW provides that ORG may exercise its right of intervention inter alia where ORG have reason to suspect dishonesty on the part of a solicitor in connection with that solicitor \u2019s practice or in connection with any trust of which that solicitor is or formerly was a trustee ; or where the ORG are satisfied that a solicitor has failed to comply with LAW , LAW or rules requiring solicitors to hold professional indemnity insurance .","Paragraph CARDINAL(CARDINAL ) provides that the intervention powers shall only be exercisable in cases concerning a suspected breach of the solicitors\u2019 rules if the ORG has given the solicitor notice in writing that the ORG are satisfied that he has failed to comply with rules specified in the notice and that the intervention powers are accordingly exercisable in his case .","Part II of Schedule CARDINAL sets out the powers available to ORG upon intervention . Under paragraph CARDINAL , ORG has the power to take control of the practice \u2019s accounts pursuant to a resolution passed by the ORG .","Under paragraph CARDINAL , ORG has the power to take possession and control of the firm \u2019s documents .","Paragraph CARDINAL allows ORG to intercept the firm \u2019s mail .","Finally , section CARDINAL of the DATE Act provides for the suspension of the solicitor \u2019s practice certificate in the event of an intervention .","The DATE Act allows an intervened - upon solicitor to apply to ORG to request the withdrawal of an intervention . Under paragraph CARDINAL ) of Schedule CARDINAL , a decision to take possession of the practice monies can be challenged within DATE of the service of the notice by application to ORG for an order directing ORG to withdraw the notice , with not less than TIME notice to FAC . Paragraph CARDINAL(CARDINAL ) provides that upon an application under paragraph CARDINAL ) , the ORG may make such order as it thinks fit .","Under paragraph CARDINAL(CARDINAL ) and ( CARDINAL ) , a solicitor can , within DATE of receiving the notice that ORG has taken possession of the firm \u2019s documents and on not QUANTITY notice to ORG , apply to ORG for an order directing that the documents be delivered to such person as the applicant may require . Paragraph CARDINAL ) provides that upon an application , the ORG may make such order as it thinks fit .","Under section CARDINAL(CARDINAL ) , a solicitor may , at any time before the expiry of her practising certificate , apply to ORG to have the suspension of the certificate terminated . Under LAW ) , upon receipt of an application :","\u201c ... the ORG may in its discretion\u2014","( a ) by order terminate the suspension either unconditionally or subject to such conditions as the ORG may think fit ; or","( b ) refuse the application . \u201d","If ORG refuses the application or terminates the suspension subject to conditions , the solicitor may appeal against the decision of the ORG . At the relevant time , an appeal was to be made to the Master of the Rolls , who could , under section CARDINAL(CARDINAL ) :","\u201c ( a ) affirm the decision ; or","( b ) terminate the suspension either unconditionally or subject to such conditions as he may think fit . \u201d","NORP The Solicitors\u2019 Accounts Rules govern the treatment of client and practice monies by solicitors . They set out a number of general principles , including that a solicitor must keep client money separate from money belonging to the solicitor or the practice ; keep client money safe in a bank or building society account identifiable as a client account ; establish and maintain proper accounting systems , and proper internal controls over those systems , to ensure compliance with the rules ; keep proper accounting records to show accurately the position with regard to the money held for each client and each controlled trust ; and account for interest on other people \u2019s money in accordance with the rules .","Detailed rules exist concerning bank accounts and require in particular that solicitors to keep CARDINAL client account for the holding of money belonging to clients . They define the circumstances in which transfers can be made from the client account to cover payment of the solicitors\u2019 fees . The rules also provide that the client account must not be overdrawn and that interest must be allocated to monies held in client accounts . Finally , the rules impose strict accounting obligations on solicitors .","DATE . The Solicitors\u2019 Practice Rules are the principal set of rules governing the practice of solicitors in GPE and GPE .","In the case of LAW Society ( [ DATE ] EWCA Civ DATE ) ORG considered an appeal by ORG against the grant of permission by ORG for an application for withdrawal of an intervention to go to trial on the basis that the intervention violated the claimant \u2019s rights under LAW No . CARDINAL .","ORG discussed the possibility of obtaining an injunction , noting :","\u201c CARDINAL . Where necessary the procedure can operate very quickly . By way of illustration , we were referred to CARDINAL case ( PERSON v. PERSON , DATE ) where the Judge gave a temporary injunction by telephone on DATE before the proposed intervention to enable the matter to be considered in ORG the following TIME . In another recent case to which I shall return ( PERSON v. PERSON , DATE ) , an interim injunction was granted to preserve the position pending the full hearing DATE . The Judge recorded the speed with which all the parties had worked , including the submission of skeleton arguments by e - mail over DATE . \u201d","In overturning the decision of ORG and restoring the order of the Master to dismiss the claim , ORG explained :","\u201c CARDINAL . Before the judge it was submitted by PERSON ( appearing then as now for Mr Holder ) that the intervention power , either generally or as applied in this case , infringed Mr PERSON \u2019s right to \u2018 peaceful enjoyment of his possessions\u2019 under article CARDINAL of the First Protocol to LAW , as applied by LAW DATE ...","...","\u201c CARDINAL . Mr Engelman referred to the principles laid down by the GPE court for the application of the public interest test : \u2018 the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual \u2019s fundamental rights\u2019 ( PERSON and PERSON ( DATE ) CARDINAL EHRR CARDINAL , CARDINAL , para CARDINAL ) ; \u2018 There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions\u2019 : Holy Monasteries v GPE ( DATE ) CARDINAL EHRR CARDINAL , DATE , para DATE . He submitted that if , as the judge found , the more draconian features of the intervention procedure were not \u2018 ORG , the requirement of \u2018 proportionality\u2019 was not satisfied . \u201d","He continued :","\u201c CARDINAL . With respect to the submission , and to the judge , this approach ignores the \u2018 all important\u2019 factor , when considering issues of proportionality , of the \u2018 margin of appreciation or discretion\u2019 or \u2018 area of judgment\u2019 allowed to the legislator and the decision - maker ... This aspect was not mentioned by the judge , although it was referred to in Mr DATE written submissions to him . [ The judge ] appears to have approached the matter on the basis that it was for the court to determine what was \u2018 ORG in the public interest , and in doing so to compare other possible procedures devised by the court . In my view , this was fundamentally wrong . \u201d","He concluded that the legislation itself and the approach taken by ORG and the courts in carrying out a balancing exercise was no different from the requirement in LAW No . CARDINAL that a fair balance be struck , noting :","\u201c DATE . In the present case , the \u2018 ORG arises at CARDINAL stages : first , the discretion allowed to the legislature in establishing the statutory regime , and , secondly , the discretion of ORG as the body entrusted with the decision in an individual case . ( In the former case , the only remedy for exceeding the \u2018 ORG may be a \u2018 declaration of GPE under LAW . ) The intervention procedure , now contained in the Solicitors Act DATE , is long - established ( dating back to DATE , in its earliest form ) , and has been reviewed by the court on many occasions . As appears from the cases to which I have referred , it has been recognised as \u2018 ORG in some respects , but necessary for the protection of the public interest ; and the courts have repeatedly emphasised the \u2018 balancing exercise\u2019 which it involves . I see no material difference between this and the \u2018 fair ORG which LAW ... I see no arguable grounds for thinking that the margin allowed to the legislature has been crossed , particularly having regard to the deference which is properly paid to an ORG , as compared to an administrative decision ...","Having reached that point , ORG actions must be judged by reference to the procedure laid down by ORG , not to some hypothetical alternative procedure ...","ORG also has a \u2018 margin of discretion\u2019 , but the court has a separate duty to consider the merits of the case , in accordance with the principles I have discussed , while paying due regard ... to the views of ORG , as the relevant professional body . As I have said , this meets any \u2018 fair balance\u2019 requirement ... \u201d","Sir PERSON agreed that the appeal should be allowed , adding :","\u201c CARDINAL . In the exercise of its powers of intervention ORG must of course comply with LAW . I can imagine circumstances where ORG might be found not to have complied with the LAW , or with LAW DATE . After all , a solicitor whose practice is the object of an intervention loses his practising certificate , and in all probability his livelihood as well . The provisions for bringing an intervention to an end are very unlikely to restore the solicitor \u2019s goodwill and his prosperity . If it comes about that the intervention was mistaken or unjustified , there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy . In practice this may never happen ; but it is a cause for concern . However , not in this case . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91245","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2009,"docname":"CASE OF IORDACHI AND OTHERS v. MOLDOVA","importance":2,"conclusion":"Violation of Art. 8;No violation of Art 13+8","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants were born in DATE and DATE respectively and live in PERSON . They are members of \u201c Lawyers for Human Rights \u201d , a PERSON - based non - governmental organisation specialised in the representation of applicants before the ORG .","According to the applicants , after the coming to power of ORG the number of violations of human rights increased considerably . In that context their organisation was created , whose sole purpose was the protection of human rights by assisting persons who sought to introduce applications with ORG .","As a result , the applicants considered that they had caused the Government serious harm in terms of damage to their image and financial loss as a result of the findings of violation in cases they had helped to bring before this ORG .","The applicants maintained that they ran a serious risk of having their telephones tapped as a result of their activity , due to the state of the legislation in force . They did not claim to have been victims of any specific interception of their communications , whether by telephone or post , and they had not instituted any domestic proceedings in that respect .","The Government disputed the allegation concerning the increase of the number of violations of human rights after ORG had won the elections .","On DATE CARDINAL of the applicants wrote to the President of ORG and asked for statistical information concerning , inter alia , the number of applications lodged by the investigating bodies with courts for interception of telephone conversations and the number of successful and unsuccessful applications .","In a letter of DATE the Head of ORG replied that in DATE of a total of CARDINAL applications for interception lodged , PERCENT had been successful ; in DATE of the CARDINAL applications lodged , PERCENT had been successful ; and in DATE of the CARDINAL applications lodged , PERCENT had been successful .","The Operational Investigative Activities Act of DATE reads as follows :","a ) revealing attempts to commit crime ; preventing , suppressing or discovering criminal offences and the persons who organise , commit or have already committed offences ; and ensuring compensation for damage caused by a criminal offence ;","b ) searching for persons who are evading the preliminary investigative authorities , the preliminary investigation or the court , or who are fleeing from a criminal sanction , or for persons who have disappeared ;","c ) collecting information on events or actions which endanger the ORG or the military , economic or environmental security of GPE .","...","( CARDINAL ) The LAW , the present PERSON and other regulations enacted in accordance with them constitute the legal basis for operational investigative activities .","( CARDINAL ) The authorities which are entitled to conduct operational investigative activities may issue , within the limits of their competence , in accordance with the law and with the consent of ORG and ORG , regulations governing the organisation , methods and tactics of carrying out operational investigative measures .","...","( CARDINAL ) Anyone who considers that the actions of the authority which has carried out investigative measures have infringed his or her rights and liberties may lodge a complaint with the hierarchically superior authority , ORG or the courts .","( CARDINAL ) NORP In order to ensure a full and thorough examination of the complaint lodged by a person against whom operational investigative measures have been applied without due grounds , the authorities which have applied such measures shall , at the request of the prosecutor , present the latter with a record of every operational action taken on duty . Data concerning persons who have confidentially contributed to the conduct of operational investigative measures shall be presented only at the request of ORG .","( CARDINAL ) Should the authority ( the official ) exercising the operational investigative activity have infringed the legitimate rights and interests of natural and legal persons , the hierarchically superior authority or prosecutor shall take measures restoring such legitimate rights and interests , and afford compensation for the damage caused , in accordance with the law .","( CARDINAL ) Operational investigative measures shall be carried out only in accordance with the law and only when it is otherwise impossible to achieve the aims provided for in section CARDINAL .","( CARDINAL ) For the purpose of accomplishing the stated aims , the authorities carrying out operational investigative measures are entitled , with due observance of the rules of secrecy , to : ...","( c ) intercept telephone and other conversations ; ...","The operational investigative measures provided for under ... , ( l ) , ... may be carried out only by ORG and ORG under the statutory conditions and only when such measures are necessary in the interests of national security , public order , the economic situation of the country , the maintenance of legal order and the prevention of offences , and the protection of health , morals , and the rights and interests of others . ... \u201d","In DATE this section was amended as follows ( amendment in bold ) :","( CARDINAL ) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section CARDINAL .","( CARDINAL ) For the purpose of accomplishing the stated aims , the authorities carrying out operational investigative measures are entitled , with due observance of the rules of secrecy , to : ...","( c ) intercept telephone and other conversations ; ...","The operational investigative measures provided for under ... , ( l ) , ... may be carried out only by ORG and ORG under the statutory conditions and only when such measures are necessary in the interests of national security , public order , the economic situation of the country , the maintenance of legal order and the prevention of very serious offences and the protection of health , morals , and the rights and interests of others . ... \u201d","The section was further amended in DATE and currently reads as follows ( amendment in bold ) :","( CARDINAL ) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section CARDINAL .","( CARDINAL ) For the purpose of accomplishing the stated aims , the authorities carrying out operational investigative measures are entitled , with due observance of the rules of secrecy , to : ...","( c ) intercept telephone and other conversations ; ...","The operational investigative measures provided for under ... , ( l ) , ... may be carried out only by ORG and ORG under the statutory conditions and only when such measures are necessary in the interests of national security , public order , the economic situation of the country , the maintenance of legal order and the prevention of serious , very serious and exceptionally serious offences , and the protection of health , morals , and the rights and interests of others . ... \u201d","Under LAW the serious offences are considered to be those offences which are punishable with imprisonment of DATE ; very serious offences are intentional offences punishable with imprisonment of DATE ; and exceptionally serious offences are those intentional offences punishable with life imprisonment . PERCENT of all offences provided for in the NORP Criminal Code fall into the category of serious , very serious and exceptionally serious offences .","\u201c ( CARDINAL ) The grounds for carrying out operational investigative activities are :","( a ) unclear circumstances concerning the institution of criminal proceedings ;","( b ) information of which the authority carrying out an operational investigative activity has become aware in connection with :","- an illegal act that is being prepared , committed or has already been committed , or persons who are preparing , committing or have already committed such an act , where the basis for instituting criminal proceedings is insufficient ;","- persons who are fleeing from a criminal investigation or the courts , or who are avoiding a criminal sanction ; ...","( c ) instructions given by a criminal investigator , investigative body , prosecutor or court in pending criminal cases ;","( d ) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section . ... \u201d","In DATE this section was amended as follows ( amendment in bold ) :","( CARDINAL ) The grounds for carrying out operational investigative activities are :","( a ) unclear circumstances concerning the institution of criminal proceedings ;","( b ) information of which the authority carrying out an operational investigative activity has become aware in connection with :","- an illegal act that is being prepared , committed or has already been committed , or persons who are preparing , committing or have already committed such an act , where the basis for instituting criminal proceedings is insufficient ;","- persons who are fleeing from a criminal investigation or the courts , or who are avoiding a criminal sanction ; ...","( c ) instructions given by an officer of criminal investigation , investigative body , prosecutor or court in pending criminal cases ;","( d ) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section . ...","( CARDINAL ) Operational investigative measures which infringe lawful rights - the secrecy of correspondence , telephone and other conversations , telegraphic communications , and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious offences or are committing or have already committed serious offences , and only with the authorisation of the prosecutor pursuant to a reasoned decision of one of the heads of the relevant authority . ...","( CARDINAL ) NORP In urgent cases where otherwise there would be a risk of commission of serious criminal offences , it shall be permitted , on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity , to carry out operational investigative measures . The prosecutor must be notified within TIME .","( CARDINAL ) Should danger to the life , health or property of certain persons become imminent , interception of their telephone conversations or other means of communication shall be permitted , following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity , and the prosecutor shall be notified . \u201d","In DATE this section was amended as follows ( amendment in bold ) :","( CARDINAL ) Operational investigative measures which infringe lawful rights - the secrecy of correspondence , telephone and other conversations , telegraphic communications , and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit very serious offences or are committing or have already committed very serious offences , and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority . ...","( CARDINAL ) NORP In urgent cases where otherwise there would be a risk of commission of serious criminal offences , it shall be permitted , on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity , to carry out operational investigative measures . The investigating judge shall be informed within TIME . He shall be presented with the reasons and shall verify the legality of the measures taken .","( CARDINAL ) Should danger to the life , health or property of certain persons become imminent , interception of their telephone conversations or other means of communication shall be permitted , following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity , and the investigating judge shall give his authority . \u201d","The section received further amendments in DATE and currently reads as follows ( amendment in bold ) :","( CARDINAL ) Operational investigative measures which infringe lawful rights - the secrecy of correspondence , telephone and other conversations , telegraphic communications , and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious , very serious and exceptionally serious offences or are committing or have already committed such offences , and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority . ...","( CARDINAL ) Should danger to the life , health or property of certain persons become imminent , interception of their telephone conversations or other means of communication shall be permitted , following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity , and the investigating judge shall give his authority . ...","( CARDINAL ) In cases envisaged under LAW , bodies exercising operational investigative activities are entitled to carry out operational control . A record must be kept of any measure of operational control .","( CARDINAL ) Operational control shall be carried out with the authorisation and under the supervision of the head of the body conducting it . The results of operational investigative measures applied shall be reflected in duly filed official operational documents . ...","( CARDINAL ) Official operational documents shall be submitted to the prosecutor in order to obtain approval for carrying out operational investigative measures .","( CARDINAL ) The operational control shall be suspended when the specific aims of the operational investigative activity set out in section CARDINAL are accomplished or when circumstances are established proving that it is objectively impossible to accomplish the aim . \u201d","In DATE paragraph CARDINAL of this section was repealed .","( CARDINAL ) The results of operational investigative activity may be used for preparing and carrying out criminal investigative activities and for carrying out operational investigative measures in order to prevent , stop or discover criminal offences , and as evidence in criminal cases .","( CARDINAL ) ORG obtained during operational control shall not constitute a reason for limiting the rights , liberties and legitimate interests of natural and legal persons .","( CARDINAL ) ORG about the persons , means , sources ( with the exception of the persons who may provide assistance to the authorities carrying out such measures ) , methods , plans and results of the operational investigative activity , and about the organisation and the tactics of carrying out the operational investigative measures which constitute State secrets , may be disclosed only in accordance with the conditions provided by law .","( CARDINAL ) Operational investigative activity shall be exercised by ORG , ORG , ORG , ORG , ORG attached to ORG and ORG attached to ORG . ...","...","Scrutiny , on behalf of ORG , of operational investigative activity shall be exercised by the relevant permanent parliamentary commissions . The authorities which exercise operational investigative activities shall submit information to these commissions in accordance with the law .","( CARDINAL ) Enforcement of the laws by the authorities carrying out operational investigative activities and the lawfulness of the decisions adopted by these authorities shall be supervised by ORG , his or her deputy , and the municipal and county prosecutors ... \u201d","On DATE ORG , ORG and ORG enacted special instructions in accordance with section CARDINAL ( CARDINAL ) of the above PERSON . The instructions regulated the co - operation between the intercepting bodies and the telephone operators . In particular it obliged the operators to co - operate with the intercepting bodies in order to facilitate the interception of telephone conversations and to provide them with all the necessary information and with unlimited access to their networks .","The Code of Criminal Procedure in force until DATE read as follows :","The interception of telephone conversations or other means of communication used by a suspect , defendant or other person involved in a criminal offence may be carried out in connection with criminal proceedings instituted in accordance with a decision of the authority conducting the preliminary investigation or the criminal investigator with the authorisation of the prosecutor , or in accordance with a court decision , where such a measure is deemed necessary in a NORP society in the interests of national security , public order , the economic welfare of the country , the maintenance of order and the prevention of crimes , or the protection of the health , morals , rights and liberties of others . The interception of telephone or other conversations may not last DATE . ... Conversations held over the telephone or other means of communication may be recorded .","The interception and recording of telephone conversations or other means of communication shall be carried out by the criminal investigator unless the task is entrusted to the authority in charge of the preliminary investigation . In this case , the criminal investigator shall draw up a warrant and a decision concerning the interception , which shall be sent to the authority in charge of the preliminary investigation . At the same time the criminal investigator shall liaise with the authority in charge of the preliminary investigation or specify in the warrant the circumstances and manner of interception of the conversations and recording , modification and disposal of the information obtained . ...","Following the interception and recording , a record shall be drawn up giving a summary of the content of the taped conversations relevant to the case . The tape shall be attached to the record and the part which does not relate to the case shall be destroyed once the judgment becomes final . \u201d","The Code of Criminal Procedure , in force after DATE , in so far as relevant , reads as follows :","The investigating judge ensures judicial supervision during the criminal prosecution by :","...","authorising the interception of communications , seizure of correspondence , video recordings ; ... \u201d","...","( CARDINAL ) The interception of communications ( telephone conversations , or communications by radio or using other technical means ) is carried out by the prosecution body on the basis of an authorisation issued by the investigating judge issued on the basis of a reasoned warrant of a prosecutor charged with the examination of very serious and exceptionally serious crimes .","( CARDINAL ) In case of urgency , when a delay in obtaining an authorisation as stipulated in paragraph ( CARDINAL ) could cause serious harm to the evidence - gathering procedure , the prosecutor may issue a reasoned warrant for the interception and recording of communications . She or he is obliged to inform the investigating judge about this immediately and TIME after issuing the warrant . The latter is required to take a decision within TIME regarding the warrant issued by the prosecutor . When she or he confirms it , she or he authorises the further interception if necessary . When he or she does not confirm it , she or he orders its immediate suspension and the destruction of records already made .","( CARDINAL ) The interception of communications may be carried out at the request of the victim of a crime , a witness and members of his \/ her family , in case of threats of violence , extortion or commission of other crimes affecting such parties , based on a reasoned warrant of the prosecutor .","( CARDINAL ) The interception of communications during a criminal investigation is authorised for a maximum of DATE . The interception may be extended on the same conditions if justified . Each extension can not however exceed DATE . The total duration can not exceed DATE . In any case , it can not last longer than the criminal prosecution .","( CARDINAL ) The interception of communications may be stopped before the end of the period for which it has been authorised , if the grounds initially justifying it no longer exist .","( CARDINAL ) During a criminal prosecution , after the end of an authorised interception , and after having asked the opinion of the prosecutor who supervises and carries out the criminal prosecution , the investigating judge shall inform in writing the persons whose conversations were intercepted and recorded . This shall be done within a reasonable time , and must be done before the termination of the criminal prosecution .","( CARDINAL ) The interception of communications is carried out by the criminal prosecution body . Persons whose responsibility is technically to facilitate the interception and recording of communications are obliged to preserve the secrecy of the procedure and the confidentiality of correspondence . They are liable in the event of a violation of their obligations under the provisions of articles CARDINAL and CARDINAL of LAW . A note must be made to the effect that they have been informed of these obligations .","( CARDINAL ) A record of the interceptions and recording carried out by the prosecution body must be drawn up in conformity with the provisions of articles CARDINAL and CARDINAL . It must record information about the authorisation given by the investigating judge , the intercepted telephone number or numbers and their addresses , together with details of the radio or other technical equipment used for conversations . The record must also indicate the name ( where known ) of the parties and the date and time of each separate conversation and the number assigned to the tape used for the recording .","( CARDINAL ) Recorded communications must be fully transcribed and annexed to the record along with the authorisation of the criminal prosecution body , after its verification and signature by the prosecutor carrying out or supervising the criminal prosecution . Communications in languages other than the CARDINAL in which the criminal prosecution is carried out shall be translated with the assistance of an interpreter . The tape containing the original recorded communications shall also be annexed to the record after having been sealed and after the stamp of the criminal investigation body has been applied .","( CARDINAL ) The tape of the recorded communications , the transcript and the records of the interception and recording of communications shall be handed over to the prosecutor within TIME . The prosecutor shall assess which parts of the collected information are important for the case in question and draw up a record in this regard .","( CARDINAL ) Original copies of the tapes along with the complete written transcript and copies of the records shall be handed over to the investigating judge who authorised interception of the communications for further storage in a special place in a sealed envelope .","( CARDINAL ) The court shall adopt a decision regarding the destruction of records which are not important for the criminal case . All the other records shall be kept up to the moment when the file is deposited in the archive .","Evidence collected under the provisions of articles CARDINAL and CARDINAL may be verified through technical expert examination by the court at the request of the parties or ex officio . \u201d","Under section CARDINAL(CARDINAL ) of LAW of DATE , a lawyer 's professional correspondence can be intercepted only under the conditions provided for by law . LAW ( CARDINAL ) provides that the confidentiality of a lawyer 's correspondence with his client is guaranteed and that such correspondence can not be intercepted ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59098","languageisocode":"ENG","respondent":"IRL","branch":"CHAMBER","date":2000,"docname":"CASE OF QUINN v. IRELAND","importance":2,"conclusion":"Violation of Art. 6-1;Violation of Art. 6-2;No separate issue under Art. 10;Costs and expenses partial award - domestic proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Georg Ress","text":["On DATE , at TIME , CARDINAL detective police officers left GPE in an unmarked police car escorting a post office van carrying significant sums of money on its way to LOC village , Co. PERSON . When the CARDINAL vehicles arrived at the post office in GPE , the police car was rammed from behind by a stolen vehicle and immediately surrounded by CARDINAL heavily armed and masked individuals dressed in paramilitary style uniforms . CARDINAL of the CARDINAL opened fire at point blank range on the police officers . CARDINAL of those officers died instantly and the other was seriously wounded .","The police suspected a local unit of ORG ( an unlawful paramilitary organisation known as the IRA ) and the IRA later claimed responsibility for the murder . It was also suspected by the police that , on TIME prior to the attack in GPE , the stolen vehicle together with all firearms and ammunition used in the attempted robbery had been stored in a safe house in ORG PERSON .","As part of the investigation that followed , a number of persons suspected of being members of the local unit of the IRA were arrested and charged , including the applicant \u2019s brother who was charged with conspiracy to commit robbery ( in relation to the ORG incident ) , possession of ammunition and of membership of the IRA . A total of CARDINAL persons were arrested and asked to account for their movements at particular times surrounding the attack , including the remaining members of the applicant \u2019s family except his CARDINAL sisters . All of those persons who were asked to account for their movements did so .","On DATE at TIME the applicant , who resided in the family home in PERSON , Co. PERSON , was arrested under section CARDINAL of the Offences Against LAW CARDINAL ( \" LAW \" ) on suspicion of being a member of the IRA contrary to section CARDINAL of LAW .","He was questioned on QUANTITY occasions during CARDINAL CARDINAL-hour consecutive periods of detention for which provision is made under LAW . While in detention , he saw his solicitor on CARDINAL occasions : TIME and TIME on DATE prior to his first interview with the police ; TIME and TIME on DATE and TIME and TIME on DATE . That solicitor did not attend the applicant \u2019s interviews with the police .","At the beginning of the interviews , the applicant was cautioned that he was not obliged to say anything , but that anything he did say would be taken down in writing and could be given in evidence . Many of the questions put to the applicant related to the attack in LOC and to his alleged membership of the IRA . On several occasions during those interviews he was also requested to account for his movements during certain periods of time on CARDINAL and DATE immediately before , during and after the incident in LOC . In being so requested , he was informed by the questioning police officers that a failure to provide this information would constitute an offence under LAW for which the potential penalty was CARDINAL months\u2019 imprisonment . The applicant was also informed , on certain occasions only , that the initial caution given to him did not apply as he was obliged to respond under LAW .","The applicant denied any connection with the events in LOC , indicated that he was in GPE when he heard the news of the murder and otherwise refused to give an account of his movements stating , on CARDINAL occasion , that he had been advised by his solicitor not to answer questions .","On DATE he was charged , pursuant to section CARDINAL of LAW , on CARDINAL counts of refusing to give an account of his movements . On CARDINAL DATE ORG dismissed CARDINAL charge , he was convicted on the second charge ( a section CARDINAL request made on DATE ) and no ruling was made on the remaining charge . The applicant was sentenced to CARDINAL months\u2019 imprisonment .","The applicant appealed against conviction and sentence to ORG and was released on bail pending the appeal . He appealed on the basis , inter alia , of an overlap in the times referred to in the charge which was dismissed and the charge on which he was convicted . In DATE ORG rejected this part of his appeal . When ORG sat on DATE to hear the applicant \u2019s submissions on sentence , he withdrew that portion of the appeal which was then struck out . The applicant was detained immediately to serve his prison sentence and was released on DATE .","In DATE the applicant \u2019s brother pleaded guilty to the charge of conspiracy to commit robbery and the remaining charges were not proceeded with . CARDINAL other men pleaded guilty to the manslaughter of the detective police officer and the wounding of his colleague in GPE , Co. PERSON .","Article CARDINAL ) of LAW provides that no person shall be tried on any criminal charge save in due course of law . By DATE , the ORG guarantees liberty for the exercise , subject to public order and morality , of the right of citizens to express freely their convictions and opinions .","The Offences Against LAW CARDINAL ( \u201c the LAW \u201d ) is described in its long ( explanatory ) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the ORG and , for that purpose , to provide for the punishment of persons guilty of offences against the ORG , and to establish ORG .","Section CARDINAL of the CARDINAL Act makes it an offence to be a member of an unlawful organisation as defined in the LAW .","Section CARDINAL deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under LAW or an offence scheduled under Part V of LAW ( the scheduled offences are mainly offences under the firearms and explosive substances\u2019 legislation ) . This power of arrest is a permanent power so that it is not dependent on a section CARDINAL proclamation ( see the following paragraph ) .","Section CARDINAL of the CARDINAL LAW provides that Part V of that LAW ( which establishes ORG and contains section CARDINAL ) is to come into force by means of a proclamation by the Government made when the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order , and when the Government therefore makes and publishes a proclamation to that effect . The proclamation was made in DATE and is still in force . Accordingly , section CARDINAL of LAW has been in force since DATE to date .","By section QUANTITY Act the Government may declare that a particular class or kind of offence is a scheduled offence for the purpose of LAW and such offences are to be tried by ORG established under LAW .","Section CARDINAL of the DATE LAW as follows :","\u201c CARDINAL . Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this LAW , any member of the < police > may demand of such person , at any time while he is so detained , a full account of such person \u2019s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub - section of this LAW or any scheduled offence .","NORP If any person , of whom any such account or information as is mentioned in the foregoing sub - section of this section is demanded under that sub - section by a member of the < police > , fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading , he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months . \u201d","NORP Under the terms of the Good Friday Peace Agreement of DATE , the ORG committed to initiating a wide ranging review of , inter alia , LAW with a view to reform and dispensing with those elements of LAW which would no longer be required . The Minister for ORG , Equality and PERSON reform has , with Government approval , established a committee to examine all aspects of the Offences Against the State Acts and to report to the Minister with recommendations for reform . The ORG has commenced its work .","In the case of ORG ) v. PERSON ( DATE IR CARDINAL ) the accused had been arrested under section QUANTITY of the CARDINAL Act and had made certain statements to the police . The defence argued that because of the basis of his arrest ( section CARDINAL ) , the existence of section CARDINAL of LAW and even though no section CARDINAL requests had actually been made , the accused was bound under penalty to give an account of his movements . Accordingly , the statements which had been made by him were involuntary and not therefore admissible . The ORG did not find this argument persuasive since no section CARDINAL requests had in fact been made . It went to point out that , even if section CARDINAL had been invoked by the police , the defence submission was not well - founded because of previous NORP case - law which had held that statements obtained in accordance with NORP law , even a law which made it a criminal offence to refuse to answer , were not inadmissible in any legal proceedings .","The Garda Siochana ( police ) Handbook contains relevant legislation and commentaries and is published by ORG of Ireland in association with ORG . The commentary on section CARDINAL of LAW in the sixth edition ( DATE ) provides as follows :","\u201c The fact that the accused is bound under threat of penalty to answer questions lawfully put under section CARDINAL does not render the resultant answers or statements inadmissible in evidence \u201d","The judicial authority for that proposition was noted in the handbook as being found in the above - cited PERSON case and the earlier NORP case - law approved in the PERSON case .","In the case of PERSON and PERSON v. GPE and the Attorney General ( [ DATE ] CARDINAL NORP ) , CARDINAL individuals had been sentenced to CARDINAL months\u2019 imprisonment pursuant to section CARDINAL of LAW for failing to give an account of their movements . ORG rejected their challenge to the constitutionality of section CARDINAL , considering that section CARDINAL constituted a proportionate interference with those ORG right to silence guaranteed by LAW : the objective was to assist police investigations into serious crimes of a subversive nature involving the security of the ORG ; the restrictions were not considered arbitrary or irrational ; and other legal protections were available to persons in custody under section CARDINAL of the CARDINAL LAW which minimised the risk of an accused wrongfully confessing to a crime and safeguarded against the possible abuse of the powers provided by LAW .","Those protections were listed by ORG : the requirement that a police officer must have a bona fide suspicion prior to arrest ; the obligatory informing of the suspect of the offences under LAW and\/or of the scheduled offences of which he is suspected ; the right to legal assistance when reasonably requested ; the right to medical assistance ; the right of access to court ; the right to remain silent and to be told of that right ; the obligations to provide appropriate cautions to detainees and to abstain from cross - examining a person in detention DATE Act and from unfair and oppressive questioning of such detainees ; and the conditions attaching to any extension of the length of detention under LAW .","ORG rejected the appeal ( PERSON and PERSON v. GPE and the Attorney General [ DATE ] FAC ) . It noted that section CARDINAL of the CARDINAL Act was silent on the question of the later use of statements made pursuant to requests of the police under that section . While it noted that ORG had suggested in the above - cited PERSON case that information lawfully obtained under LAW might be later used in evidence , ORG expressly reserved its position as to whether that view was correct or not .","ORG pointed out that the right to silence was a corollary to the freedom of expression guaranteed by LAW . The relevant assessment was , therefore , to consider the proportionality of the restriction on the right to silence in view of the public order exception to LAW . It noted that LAW was aimed at actions and conduct calculated to undermine public order and the authority of the ORG and that the proclamation made under LAW remained in force .","As to whether section CARDINAL restricted the right to silence more than was necessary in light of the disorder against which the ORG was attempting to protect the public , the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish , nevertheless , to take a stand on grounds of principle and to assert his or her constitutional rights . However , it considered that the entitlement of citizens to take such a stand must yield to the right of the ORG to protect itself . The entitlement of those , with something relevant to disclose concerning the commission of a crime , to remain silent must be regarded as of an even lesser order .","In the case of ORG ( In the matter of ORG and LAW DATE , DATE CARDINAL ILRM CARDINAL , at CARDINAL ) ORG found that a confession of a bank official obtained by ORG as a result of the exercise by them of their powers under LAW of LAW DATE would not , in general , be admissible at a subsequent criminal trial of that official unless , in any particular case , the trial judge was satisfied that the confession was voluntary . ORG considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to LAW . That court also found that any other evidence obtained as a result of information provided under LAW would be admitted in evidence in a subsequent trial if the trial judge considered , in all the circumstances , that it would be just and fair to admit it ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22636","languageisocode":"ENG","respondent":"ITA","branch":"ADMISSIBILITY","date":2002,"docname":"SALVETTI v. ITALY","importance":3,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is an NORP national , who was born in DATE and lives in PERSON , GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","In DATE the applicant was struck down by paralysis , blindness and dysarthria as a result of the compulsory polio inoculation provided by Law no . CARDINAL of DATE .","Section CARDINAL of Law no . CARDINAL of CARDINAL DATE provided that people struck down by permanent illnesses as a result of compulsory inoculations were entitled to an allowance from DATE following the claim and to a lump - sum payment . In fact , by a judgment of CARDINAL DATE ORG had declared PERSON no . CARDINAL of DATE unconstitutional because it did not provide for any fair compensation for illnesses as a result of compulsory polio inoculation .","On DATE the applicant requested the compensation she was entitled to .","On DATE ORG established , on the basis of the applicant \u2019s claim , that she was entitled to an allowance of MONEY ( ORG ) per annum from DATE .","On DATE ITL CARDINAL were paid in arrears for the period from DATE to CARDINAL DATE .","By a judgment of DATE ORG declared section CARDINAL of Law no . CARDINAL of CARDINAL DATE unconstitutional because it did not provide for any compensation for the period between the date on which the cause of action arose and the award of the allowance .","In DATE , after ORG judgment , several decree - laws were issued and re - issued in order to resolve the matter of the retrospective compensation . The last decree - law no . CARDINAL of DATE converted into PERSON no . CARDINAL of DATE and later PERSON no . CARDINAL of CARDINAL DATE amended LAW no . CARDINAL of CARDINAL DATE . According to the new LAW , in addition to the principal allowance and lump - sum payment already awarded , people injured by compulsory inoculations were entitled to a further compensation for the period between the date on which the cause of action arose and the award of the allowance , calculated for DATE at PERCENT of that allowance , without statutory interest and monetary revaluation . Moreover , section CARDINAL provided that people injured by multiple illnesses as a result of compulsory inoculations were entitled to additional compensation , to be determined by a decree of ORG , of not PERCENT of the principal award .","On DATE the applicant lodged an application with ORG ( PERSON ) alleging that the decree - law \u2019s provisions were unconstitutional on the grounds of the arbitrary reduction of the retrospective compensation and requesting a declaration of her right to obtain it without any reduction . The applicant also alleged that the provision in relation to the additional award was unconstitutional , because it was determined in a different way from the sum awarded to disabled workers and ex - servicemen . In any case , the applicant requested a provisional order against ORG to pay the retrospective compensation as determined by PERSON no . CARDINAL of CARDINAL DATE ( that is , PERCENT of the principal award ) and statutory interest from DATE to CARDINAL DATE on the principal allowance arrears .","ORG asked for the applicant \u2019s requests to be dismissed .","ORG provisionally ordered that ORG pay ITL CARDINAL in retrospective compensation as determined by PERSON no . CARDINAL of DATE .","By judgment of DATE ORG found the applicants\u2019 arguments concerning constitutionality to be manifestly ill - founded and ordered ORG to pay ITL CARDINAL,CARDINAL,CARDINAL in retrospective compensation as determined by PERSON no . CARDINAL of CARDINAL DATE and ITL CARDINAL in statutory interest from DATE to CARDINAL DATE in principal allowance arrears . ORG also declared that the applicant was eligible for the additional compensation because of the multiple illnesses following the compulsory inoculation but did not fix the amount because ORG decree had not yet been issued .","ORG lodged an appeal against ORG judgment .","The applicant asked for the appeal to be dismissed and her previous requests confirmed .","By judgment of DATE ORG upheld ORG judgment and ordered ORG to pay additional compensation of PERCENT of the principal award .","By judgment no . CARDINAL of CARDINAL DATE ORG declared as follows :","Law no . CARDINAL of DATE ( polio compulsory inoculation ) is unconstitutional insofar as it does not provide , outside section DATE of the civil code , for any fair compensation to be charged to the State for damage as a result of infection or other serious illness following compulsory polio inoculation which have struck down inoculated children or people who have personally and directly taken care of them .","This unconstitutional declaration ( ... ) introduces a compensation for damage as direct result of compulsory medical treatment within the limits of a fair settlement which considers all the aspects of damage . This compensation is justified ( ... ) by a balanced consideration of the principles of section CARDINAL of the LAW in relation to the solidarity between individuals and the collectivity , which justifies the imposition of medical treatment .","According to LAW of CARDINAL DATE :","Everyone struck down by illnesses or infirmities as a result of compulsory inoculations ( ... ) is entitled to a compensation to be charged to the ORG on the conditions and in the ways established by the present law .","Section CARDINAL of Law no . CARDINAL of CARDINAL DATE provided as follows :","","The compensation ( ... ) starts from DATE following the claim .","By judgment no.CARDINAL of DATE ORG declared as follows :","","Section CARDINAL , par . CARDINAL and CARDINAL , par . CARDINAL of Law no . CARDINAL of CARDINAL DATE is unconstitutional insofar as it denies the right of people struck down by illnesses as a result of polio compulsory inoculation or of people who have personally and directly taken care of them to a compensation to be charged to the ORG -outside the provision of section DATE of the civil code- for the period between the date on which the cause of the action arose and the award of the allowance determined according to the law above .","( ... ) The individual can not be expected to sacrifice his own health for the benefit of the whole community . The coexistence between the individual and the collective aspect of constitutional discipline of health as well as the duty of solidarity , established by LAW , which ties the individual to the collectivity , but also the collectivity to the individual , imposes a proper supporting measure of fair compensation for damage to be arranged for people who have suffered damage as a result of compulsory medical treatment . The compensation must be paid independently of the one claimed by the part concerned , if the conditions of section DATE of the civil code are satisfied . Whereas the defence against tort provided by the section above necessarily and fully pays also for health damages -( ... )- the compensation at issue is not concerned with guilt but with the unbreakable duty of solidarity overhanging in this case on the collectivity and , in its place , on the ORG . Though this compensation could not be derisory and -( ... )- must consider all the aspects of damage , it has equitable nature .","( ... ) This is a special duty . The issue for the collectivity is not only the duty to help people in trouble for any cause , but also the duty to compensate the sacrifice that someone can suffer for a benefit to the collectivity . It would be against principles of justice , such as results from section CARDINAL of LAW , in the light of the duty of solidarity of LAW , that people struck down were left to their own destiny and resources or that the damage at issue was considered an unforeseen event to be compensated with general instruments of public assistance , or that satisfaction for compensation requests of damaged people was subordinated to the existence of others\u2019 negligent behaviour which could be missing .","Section CARDINAL of Law no . CARDINAL of DATE , revised by PERSON no . CARDINAL of DATE and later by law no . CARDINAL of DATE , provides as follows :","The allowance of par . CARDINAL is integrated by a lump - sum payment corresponding to the special additional compensation of Law no . CARDINAL of CARDINAL DATE ( ... ) and starts from DATE following the claim ( ... ) By claim and even if the allowance has been already given , a compensation is paid to people indicated in LAW , par . CARDINAL for the period between the date on which the cause of action arose and the award of the allowance , calculated for DATE at PERCENT of the allowance , without statutory interest and monetary revaluation .","ORG ( ... ) .","People injured by multiple illnesses with distinct disabling effects are entitled to an additional compensation , to be determined by a decree of ORG , of not PERCENT of the allowance of par . CARDINAL and CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102943","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2011,"docname":"CASE OF SKEND\u017dI\u0106 AND KRZNARI\u0106 v. CROATIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award","judges":"Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicants were born in DATE , DATE and DATE respectively and live in PERSON .","On DATE , during the Homeland War in GPE , an arrest warrant , signed by the then head of Oto\u010dac police station ( FAC postaja PERSON ) GPE , was issued in respect of GPE , the first applicant 's husband and the second and third applicants ' father , born on DATE and of NORP ethnic origin , who was suspected of having committed the criminal offence of terrorism . On DATE QUANTITY police officers from the station , GPE and PERSON , went to the applicants ' flat in PERSON and arrested PERSON , who was taken to GPE","On DATE , at an unspecified time , CARDINAL other police officers from the same police station , GPE and GPE , took PERSON to ORG of the nearby town of GPE and handed him over to ORG , the Head of ORG ( PERSON \u0161tab Gospi\u0107 ) . They saw FAC handcuffing GPE and then went back to PERSON . The whereabouts of PERSON have remained unknown ever since .","At the request of his family , PERSON was presumed dead from CARDINAL DATE TIME by virtue of a decision of ORG ( PERSON ) of CARDINAL DATE .","The applicants allege that in the same period a number of individuals of NORP ethnic origin had disappeared or had been killed in the area around the nearby town of GPE .","In DATE following the arrest of her husband by the police , the first applicant telephoned the local authorities in PERSON and FAC on numerous occasions to enquire about his fate , but to no avail .","On DATE , after the first applicant had made enquiries to ORG ( the \u201c Ministry \u201d ) regarding her husband , ORG sent an official letter to PERSON police station enquiring as to the whereabouts of GPE since his arrest on DATE . On DATE GPE replied that PERSON had been arrested on DATE at TIME and taken to FAC ( GPE zatvor FAC ) DATE .","On DATE the ORG sent an official letter to ORG enquiring as to PERSON 's whereabouts .","On DATE ORG replied that PERSON had been arrested by officers from PERSON police station and that ORG had not been informed of his arrest . They further stated that , to their knowledge , PERSON had been taken to GPE Prison ( GPE zatvor GPE ) . Further to this , on DATE ORG informed the ORG that PERSON had never been detained in FAC .","On DATE the ORG sent a letter to both PERSON police station and ORG enquiring as to the whereabouts of PERSON and whether he had been listed as a missing person .","On DATE PERSON , CARDINAL of the above - mentioned police officers from Oto\u010dac police station , drew up a report stating that after he had been arrested on DATE PERSON had been taken to ORG and handed over to its head , ORG He also stated that there was no further information as to ORG 's whereabouts .","On DATE the first applicant sent a letter to the Minister of Justice calling for an official investigation into the disappearance of her husband . On DATE the letter was forwarded to the ORG Attorney with a request that appropriate steps be taken . The first applicant was served with a copy of that request , but received no further information .","The first applicant sent a second letter to ORG on DATE seeking information about the steps taken in order to establish the circumstances of her husband 's disappearance .","On DATE the GPE State Attorney 's ORG ( GPE dr\u017eavno odvjetni\u0161tvo u ORG ) ordered investigative measures in connection with the disappearance of PERSON and asked the PERSON police to conduct an interview with former police officer PERSON and former head of the police station GPE about the disappearance of GPE The PERSON police interviewed PERSON on DATE . He said that in the autumn of DATE he and another police officer , PERSON , had arrested PERSON in his flat in PERSON pursuant to an arrest warrant issued by GPE They had taken GPE to GPE and left .","On DATE the Oto\u010dac police informed the GPE State Attorney 's ORG that they had not been able to interview GPE because he had moved to GPE .","In a letter sent to the ORG on DATE , the first applicant complained that no action was being taken in respect of the inquiry into the fate of her husband . On DATE the ORG asked the applicant to explain what exactly her request was .","On DATE police officer , GPE , since retired , was interviewed at Oto\u010dac police station . He said that in DATE he had been a police officer at that station and that during that period PERSON had been brought to the premises of PERSON police station , where he had been briefly detained and then transferred to FAC by CARDINAL police officers , GPE and GPE","On DATE PERSON , the aforementioned police officer from PERSON police station , made a written statement that on DATE he and another police officer , ORG , had executed an arrest warrant and arrested PERSON in his flat in PERSON . They had handed him over to GPE and left .","On DATE former police officer GPE was interviewed at Oto\u010dac police station . He said that he could not remember a person named PERSON but did remember having on CARDINAL occasion , together with his colleague PERSON , driven an official police vehicle to ORG , but could not say for what purpose .","The PERSON police informed ORG of the result of the interviews on DATE and the GPE State Attorney 's ORG on DATE .","On DATE the first applicant officially registered PERSON with the PERSON police as a missing person . On DATE the Oto\u010dac police informed the GPE police that GPE had been listed as a missing person and asked them to carry out an inquiry because PERSON had disappeared on the territory under their jurisdiction . On DATE the NORP police asked FAC authorities whether they had a record of GPE having been detained there in DATE and whether ORG had had any function at FAC at that time .","On DATE the ORG authorities informed the FAC police that GPE had never been registered as having entered that prison and that ORG had had no function at the prison , but had been head of ORG .","On DATE the NORP police asked the Li\u010dko - Senjska Police Department ( FAC uprava li\u010dko - senjska \u2013 the former ORG ) to request ORG to interview ORG , who was now living in GPE . On DATE the Li\u010dko - Senjska Police Department duly made that request .","On DATE ORG interviewed GPE He stated that during the Homeland War in GPE , as an officer in ORG , he had arrived in GPE on DATE and left sometime at DATE . He had no knowledge of the arrest and disappearance of GPE","On DATE the first applicant asked the ORG Attorney to take steps in order to establish the whereabouts of her husband .","In DATE the ORG Attorney sent a letter to the GPE State Attorney 's ORG ( GPE dr\u017eavno odvjetni\u0161tvo u ORG ) stating that in DATE his office had already forwarded to ORG a request that an investigation be carried out into the death of GPE , in particular in connection with the criminal proceedings opened in DATE against a certain ORG and other persons . The first applicant 's submissions from DATE , in which she stated that she had received no information in reply to her enquiry about the circumstances of her husband 's death , were enclosed . The ORG Attorney requested all information about GPE that had been obtained during the investigation concerning ORG and his accomplices . A copy of this letter was served on the first applicant .","On DATE the GPE State Attorney 's ORG informed the Li\u010dko - Senjska Police Department about the interview with ORG and also said that the records of ORG showed that ORG had not been on their payroll .","On DATE ORG interviewed GPE He stated that from DATE to CARDINAL DATE he had been head of PERSON police station and that sometime in DATE or DATE an order had been given for GPE to be arrested and taken to ORG for questioning on suspicion of having participated in the criminal offence of kidnapping a driver in DATE . He did not know who had given that order but was sure that it had not been him . GPE also said that he had not seen PERSON when he was taken to the PERSON police but that he knew that PERSON , together with CARDINAL or CARDINAL other police officers , had taken PERSON to the NORP police in a police car . He had no knowledge as to what had happened there but had heard rumours that on DATE had run away to the occupied territories .","On DATE ORG NORP uprava zadarska ) interviewed FAC , who had been Head of ORG of ORG ( na\u010delnik GPE operativnih poslova javne sigurnosti PERSON uprave Gospi\u0107 ) in the period DATE and DATE . He had no knowledge of the arrest and disappearance of GPE and had never heard of a person of that name .","On DATE the Li\u010dko - Senjska Police Department interviewed ORG , a retired police officer from ORG who said that he had not ordered the arrest of GPE and that it had most likely been GPE who had ordered it . He had not witnessed GPE being brought to ORG .","In DATE the Deputy ORG Attorney sent a letter to the first applicant telling her that both ORG and the GPE State Attorney 's ORG had been ordered to take all necessary steps to establish the circumstances of her husband 's disappearance .","On DATE the GPE State Attorney 's ORG asked ORG ( \u017dupanijski sud u ORG ) to hear evidence from witnesses PERSON ( the first applicant ) , GPE , GPE , GPE , GPE , PERSON and GPE At hearings held on DATE and DATE an investigating judge of ORG heard evidence from all these witnesses , save GPE All of them repeated what they had already said to the police . Further to this , on DATE an investigating judge of ORG ( \u017dupanijski sud u GPE ) heard evidence from GPE He repeated the statement he had made to the police .","At DATE the first applicant wrote to the Vice - President of the Government , enquiring about the progress of the investigation , and the latter forwarded the letter to the ORG Attorney . In DATE the Deputy ORG Attorney informed the applicant that in DATE a request for an investigation into the disappearance of GPE to be opened had been lodged with ORG ( \u017dupanijski sud u Gospi\u0107u ) . On DATE the investigating judge assigned to the case heard evidence from a number of witnesses .","In DATE the first applicant 's counsel sought information about the investigation from ORG .","In DATE the GPE State Attorney 's Office informed the applicant that those responsible for the disappearance of her husband had yet to be identified . The GPE State Attorney asked ORG to continue with their efforts to establish the circumstances of GPE 's disappearance .","In DATE the first applicant 's counsel asked the ORG Attorney to transfer the case to another ORG Attorney 's office , objecting to the lack of impartiality of the GPE State Attorney 's ORG on the grounds that the investigation had revealed involvement on the part of the local authorities in the disappearance of GPE","NORP In DATE the ORG Attorney replied to the first applicant 's counsel that he had asked for a report from the GPE State Attorney 's ORG and the local police .","In DATE the first applicant 's counsel told the representatives of FAC to GPE that the investigation was ineffective . In DATE the Mission enquired of the ORG Attorney as to progress with the investigation .","At the same time the first applicant 's counsel requested that PERSON be listed as a disappeared person with ORG and provided information as to where his body might be found . Soon afterwards , ORG , Homeland War Veterans and ORG ( ORG obitelji , branitelja i me\u0111ugeneracijske solidarnosti ) informed the representative that CARDINAL corpses of unidentified persons had been found as a result of exhumation at a graveyard in Vrane\u0161 . In connection with this the members of the PERSON family gave samples of their blood .","In DATE the State Attorney 's Office informed GPE that further information had been requested from the GPE State Attorney 's ORG . The latter ordered the local police authorities to undertake further steps in order to identify the perpetrators . However , no further steps were taken .","On DATE the applicants lodged a constitutional complaint about the ineffectiveness of the investigation . The proceedings are still pending .","In DATE the applicants brought a civil action against the ORG in ORG seeking damages in connection with PERSON 's disappearance .","In a judgment of CARDINAL DATE ORG established that PERSON had been arrested by the police and alive while in police custody and that therefore the ORG was responsible for his disappearance and death . It awarded the applicants each CARDINAL NORP kunas ( HRK ) for non - pecuniary damage in respect of their suffering for the death of a close relative , and also a DATE allowance to the first applicant until her death and to the second and third applicants for as long as they attended school . The relevant part of the judgment reads :","\u201c ... the arrest warrant issued by the PERSON police station on DATE in respect of GPE , on the basis of which he was brought to that station , and at the same time the lack of any evidence that PERSON was handed over to any other ORG body , leads this court to establish the defendant 's responsibility .","...","As stated above , the fact that there is no evidence that the PERSON police station handed the detainee PERSON over to any other State body is crucial for the question of the defendant 's responsibility because the issue of control over the detainee includes taking of responsibility for his safety and for the protection of his physical integrity .","The evidence given by the witnesses , in particular the police officers who participated in GPE 's arrest and his transfer to ORG , shows that their actions violated the detainee 's fundamental human rights and freedoms guaranteed under LAW , which can not be restricted even at the time of ... the immediate war danger ... as well as the rights guaranteed by LAW then in effect .","It has been established that the defendant , in addition to infringing the procedure prescribed by law , did not secure to the detainee the protection of his physical integrity and life , which resulted in his disappearance and presumption of his death .","In such a way , it is clear that damage was caused by unlawful and incorrect acts on the part of the ORG bodies , namely , ORG ...","...","This court has no doubt that the suffering on account of the death of a husband and father can not be translated into money : it concerns just satisfaction so that the plaintiffs may be at least partially helped in regaining their mental balance , which was certainly upset by the loss of a husband and father . In assessing the amount of just satisfaction for the plaintiffs ' suffering , the court has had particular regard to the circumstances and manner in which the deceased PERSON disappeared , and accordingly considers the plaintiffs ' sufferings as being particularly serious .","The court has taken into account that the deceased , PERSON , was arrested by the legitimate authorities and that since he was taken from his home , his family \u2013 the plaintiffs \u2013 have had no further information about [ his whereabouts ] . Of course the fate of the plaintiffs ' husband and father has given rise to an exceptionally frustrating and stressful situation for the plaintiffs as a family , in particular seeing that the family has never learned the complete truth about his disappearance .","In her statement the first plaintiff vividly described the atmosphere of utter despair and uncertainty which the plaintiffs felt at the time when PERSON was arrested and then disappeared , stressing that she had taken tranquilisers because she had received no answers as regards the fate of her husband .","The statement of the second plaintiff that as a DATE child she had been constantly crying , that she and her brother had retreated into themselves and that she would like to know at least where her father had been buried so that she could attend his grave on DATE was also moving .","The third plaintiff , who was CARDINAL at the time of [ the disappearance of his father ] , stressed the strong bond between himself and his father and the time of his arrest and uncertainty about his fate , describing it as ' horrible in which he can not remember a single nice moment . '","It is clear that the mental suffering caused by the loss of a parent or a husband is immeasurable . In the case at issue the plaintiffs ' suffering has an additional dimension owing to the fact that they still do not know the exact circumstances of GPE 's death or the place of his grave . \u201d","The part of the judgment concerning the award for non - pecuniary damage was upheld by ORG on DATE , whereas the part concerning the DATE allowance was quashed . On DATE ORG ( PERSON ) upheld ORG judgment concerning the award for non - pecuniary damage . This judgment was fully enforced on DATE .","The proceedings concerning the claim for a DATE allowance resumed before ORG , which delivered a fresh judgment on DATE , again awarding the applicants a DATE allowance , which was upheld by ORG on DATE .","DATE . On DATE the applicants sought enforcement of that judgment in ORG and an enforcement order was issued on DATE .","NORP However , upon a request by the State on DATE , the enforcement of the judgment was adjourned on the grounds that the ORG had in the meantime lodged an appeal on points of law with ORG , which was still pending ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67019","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2004,"docname":"SULVA v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Ms I. Abelovsk\u00e1 , a lawyer practising in GPE .","The applicant acted as receiver in bankruptcy of a ORG - owned company . On DATE he submitted his final report to ORG for approval . It indicated the sum obtained from the sale of the company 's assets and also the receiver 's costs and his remuneration . The bankrupt company and its creditors filed no objections to the report .","On DATE ORG heard the applicant and a representative of the bankrupt company . The latter stated that he did not object to the receiver 's report subject to its conformity with the relevant law . On DATE ORG delivered a decision in which it approved of the report with a modification concerning the applicant 's remuneration . The decision stated that the applicant had not determined the sum due to him in accordance with Sections CARDINAL ) and CARDINAL(CARDINAL ) of Regulation No . CARDINAL\/CARDINAL as amended .","In ORG view , the applicant had mistakenly included in the sum obtained through realisation of the bankrupt 's assets ( which serves as the first component for determination of a receiver 's remuneration ) the sum of CARDINAL NORP korunas ( SKK ) which the company in bankruptcy had in its bank account at the moment of adjudication of bankruptcy . The receiver calculated the second part of his remuneration ( based on the sum reserved for satisfying the creditors ' claims obtained as a result of receiver 's activities ) in that he had repeatedly included in it the sum obtained as a result of realisation of the assets after deduction of claims relating to those assets , of sums to which the bankrupt 's employees had been entitled as well as of other items . ORG therefore modified the calculation of remuneration submitted by the applicant in that it deducted SKK CARDINAL,CARDINAL.CARDINAL from the sum representing the income from realising the bankrupt 's assets and administration of its property . The remaining sum , which included ORG ( obtained as a result of realising the assets ) and SKK CARDINAL,CARDINAL,CARDINAL , DATE ( sum reserved for satisfying the creditors ' claims obtained in the course of the administration in bankruptcy ) , served as the basis for determining the receiver 's remuneration . Considering that the administration in bankruptcy carried out by the applicant had been complex , ORG increased the remuneration by MONEY as the relevant law permitted .","On DATE the applicant appealed . He submitted reasons for the appeal on DATE . He argued that ORG had disregarded the fact that no objections had been filed to his report and concluded that the court had exceeded its power in that it had modified a part thereof . He further submitted that ORG had incorrectly interpreted Section CARDINAL ) of Regulation No . CARDINAL\/CARDINAL , as amended by Regulation No . CARDINAL\/CARDINAL , in that it had excluded from the second component of his remuneration the sum obtained as a result of realisation of the bankrupt 's property and that the sum which the bankrupt had had in its account at the moment of adjudication of bankruptcy had not been taken into consideration when determining the sum on the basis of which his remuneration was to be calculated . In support of his argument the applicant referred to CARDINAL decisions delivered by ORG in DATE and in DATE . He also referred to doctrinal interpretation of the relevant law published in ORG in DATE and in a law review .","On DATE ORG upheld ORG decision concerning the sum which was due to the applicant . In its judgment ORG summed up the reasoning of the first instance court and the arguments put forward in the appeal without mentioning , however , the above CARDINAL ORG decisions of DATE and DATE relied upon by the applicant . The reasons for ORG decision read as follows :","\u201c [ Under LAW . CARDINAL\/CARDINAL , as amended , ] a bankruptcy receiver 's remuneration is composed of the addition of remuneration determined on the basis of the sum obtained as a result of realisation of the bankrupt 's property after adjudication of bankruptcy and of remuneration determined on the basis of the sum which is reserved for satisfying the creditors ' claims and which the receiver obtained as a result of other activities than realisation of assets , such as filing claims with courts or proposing enforcement of decisions etc .","In the present case the first instance court [ in accordance with the relevant provisions of LAW ] had before it the final report on realisation of assets and on remuneration and expenses and examined it at the hearing held on DATE in the course of which the bankrupt 's representative stated that he did not object to the receiver 's remuneration subject to its second component being in accordance with the law . The first instance court ... came to the conclusion that the remuneration had not been calculated in accordance with LAW . CARDINAL\/CARDINAL , as amended by ORG . CARDINAL\/CARDINAL , and modified the remuneration due .","The appellate court also reached the conclusion that the sum of ORG which had been deposited in the bankrupt 's bank account prior to adjudication of bankruptcy could not serve as the basis for determining the first part of the receiver 's remuneration as that sum had not been obtained as a result of realisation of the bankrupt 's assets . The second part of remuneration should be determined on the basis of the sum obtained by the receiver through other activities than realising the assets . In the case under consideration the approved final report indicates that other incomes have amounted to SKK CARDINAL,CARDINAL,CARDINAL.CARDINAL . The incomes from realising the assets and from other activities total SKK CARDINAL,CARDINAL,CARDINAL.CARDINAL and this sum serves as the basis for determining the receiver 's remuneration under LAW No . CARDINAL\/CARDINAL , as amended by ORG . CARDINAL\/CARDINAL ... The first instance court decided correctly when concluding that the receiver 's remuneration amounted to the sum mentioned . \u201d","ORG decision was subsequently published in the Collection of opinions of ORG and of courts ' decisions under No . CARDINAL\/CARDINAL . The conclusion was emphasised according to which a sum which a debtor had in a bank account prior to adjudication of bankruptcy is not to be included in the sum on the basis of which a receiver 's remuneration is determined as it was not obtained as a result of realisation of the bankrupt 's assets .","Regulation No . CARDINAL\/CARDINAL , as amended by Regulation No . CARDINAL\/CARDINAL , governs the implementation of certain provisions of LAW of DATE .","Section CARDINAL(a ) provides that the basis for determining the remuneration of a receiver in bankruptcy is composed of the sum obtained through realisation of the bankrupt 's assets and of the sum reserved for satisfying the creditors ' claims which the receiver obtained in the course of carrying out his or her duties .","Under LAW ) of Regulation No . CARDINAL\/CARDINAL , as amended , a receiver in bankruptcy is entitled to remuneration equal to MONEY of the sum mentioned in Section CARDINAL(a ) , the minimum remuneration being SKK CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61814","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2004,"docname":"CASE OF G.W. v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE . In DATE he joined ORG .","In or DATE , he was charged , pursuant to section CARDINAL of LAW DATE ( \u201c the DATE LAW ) , with CARDINAL civilian offences ( CARDINAL under LAW DATE and CARDINAL under the Forgery and LAW DATE ) . He was also charged , inter alia , on CARDINAL counts of misapplication of public property contrary to section CARDINAL of the CARDINAL Act . The charge sheet was signed by the convening authority , ORG Admiral PERSON ( ORG GPE ) .","By convening order dated DATE , the convening authority acknowledged receipt of the \u201c circumstantial letter \u201d and ordered the convening of a court - martial for DATE ( see paragraph CARDINAL below ) . He appointed the Prosecutor by name ( of lower rank and in the convening authority \u2019s chain of command ) . He also appointed the President of the court - martial and the other CARDINAL members by name : all were subordinate in rank to the convening officer but were not in his chain of command . The Judge Advocate was also appointed by name by the convening authority and was not in the latter \u2019s chain of command .","Advised that he could be represented by a civilian or naval lawyer , the applicant instructed a civilian lawyer , his current representative .","The court - martial took place on board ORG on DATE and the applicant pleaded guilty to all charges . Having presented evidence in mitigation of sentence , he was sentenced , inter alia , to CARDINAL months\u2019 imprisonment , to be discharged from the navy and to stoppages of pay in the sum of MONEY .","NORP By letter dated DATE the applicant was informed that his petition against sentence , which had been reviewed on behalf of ORG by the Naval Secretary \/ Director General Naval Manning , had been rejected but that he could request that the petition be further considered by ORG .","He subsequently renewed his petition against sentence . On DATE he was released from prison and by letter dated DATE he was notified that his petition had been rejected .","The law and procedures in respect of naval courts - martial were contained in LAW DATE ( \u201c the DATE LAW ) and in certain statutory instruments made under LAW including ORG ) DATE ( \u201c the DATE Orders \u201d ) . Following the ORG \u2019s report in the case of GPE v. GPE , certain provisions of LAW were amended by LAW ( \u201c the LAW \u201d ) which LAW came into force on DATE ( PERSON v. GPE , no . CARDINAL\/CARDINAL , Commission \u2019s report of DATE and , see also , judgment in that case of CARDINAL DATE , Reports of ORG ) . Sections A - G below concern the applicable law and practice prior to the entry into force of LAW .","NORP Under CARDINAL of the DATE LAW civilian \u201d offences were also offences under LAW . Accordingly , even if the charge amounted to a civilian offence , in most cases naval personnel could be tried on that charge by the naval authorities under LAW .","At the material time a naval court - martial consisted of CARDINAL naval officers not below the rank of lieutenant , though the rank of the members might have been higher depending on the rank of the accused . Not all members belonged to the same ship or naval establishment and the captain and executive officer of the accused \u2019s ship could not sit on the court - martial .","A President of the court - martial was appointed from the members . A Judge Advocate also took part in every naval court - martial . The Prosecutor could be a legally qualified naval officer or any other competent person . In exceptional cases , a civilian lawyer was appointed to act as Prosecutor .","An accused was allowed to engage , inter alia , an officer or civilian counsel ( \u201c the accused \u2019s friend \u201d ) who advised the accused , examined the accused if he desired to give evidence , cross - examined witnesses for the prosecution and examined witnesses for the defence . If the accused wished to be represented by a civilian lawyer he could apply to the convening authority for approval of legal aid .","The convening authority was an officer authorised by ORG to convene a court - martial . Appendix CARDINAL to Volume II of ORG published by the naval authorities ) gave a list of officers who could act as convening authority : Commander in Chief , Fleet ; Commander in Chief , ORG ; ORG GPE ; ORG GPE and GPE ; ORG ; ORG GPE ; NORP Officer LOC ; Flag Officer Sea Training ; Commander ORG ; and Commander NORP Forces GPE .","An application for a court - martial to be held was generally made to the convening authority by the Commanding Officer by way of a \u201c circumstantial letter \u201d . This letter reported the circumstances upon which a charge was based in sufficient detail to show the real nature and extent of the offence . Any statement made by the accused in the course of inquiries , during investigation or after he was charged had to be forwarded in a separate document annexed to the letter . A charge sheet in the prescribed form , a list of witnesses for the prosecution , summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposed to put in evidence accompanied the letter .","Based on the material submitted , the convening authority decided on the charges to be retained against an accused and , if he was satisfied with the charge sheet accompanying the circumstantial letter , he could countersign the charge sheet . He also decided on the necessity to hold a court - martial on the charges retained . In this latter respect , the convening authority was guided by the principles issued by ORG under section CARDINAL of LAW DATE and was not to order the holding of a court - martial unless satisfied that the charges were correct , that the evidence was sufficient ( namely , that there was a realistic prospect of a conviction ) and that there was a \u201c service interest \u201d in trying the matter by court - martial . In convening the court - martial , the convening authority appointed the date , time and place for trial .","The convening authority appointed the President and other members of the court - martial . He also appointed , or directed an officer to appoint , a Judge Advocate and a Prosecutor . He ensured that the accused was properly assisted . In this latter respect , and unless the accused wished to represent himself or to instruct civilian counsel , the convening authority would nominate a competent naval officer to act as the accused \u2019s friend .","The convening authority could , in exceptional circumstances , countermand the ordering of a court - martial before its commencement and dissolve a court - martial during the trial if circumstances arose which , in his opinion , rendered such action necessary ( orders CARDINAL ) and CARDINAL ) of the DATE Orders ) .","The Judge Advocate of the ORG was appointed by the Queen on the recommendation of the Lord Chancellor and was removable on the same authority for inability or misbehaviour . He had to be a barrister or advocate of not less than ten years\u2019 standing . He acted as legal advisor to ORG on matters regarding the administration of justice under LAW . It was his duty to review all contested courts - martial whether the verdict was guilty or not guilty and , in particular , he advised that ORG whether a court - martial had been properly conducted according to law and whether the conviction could stand , he gave a view on the sentence and he drew attention to any gross errors or irregularities . He also gave the Chief Naval Judge Advocate his view as to the manner in which the naval barristers had conducted themselves as Judge Advocate , Prosecutor and as the accused \u2019s friend . As a result of the latter advice , \u201c there may well be downstream actions issuing guidance either specifically or generally \u201d ( LAW , Appendix CARDINAL ) .","The Chief Naval Judge Advocate was a serving officer of the rank of captain of ORG and he was also a barrister . The Chief Naval Judge Advocate was assisted by a staff of serving naval officers who were barristers . His duties included assisting and consulting with the Judge Advocate of the Fleet , advising on the selection and appointment of naval barristers and sitting as Judge Advocate at naval courts - martial where the seriousness of the charges , the complexity of the trial , the rank of the accused or the interests of the Service so required .","In all other cases , a Judge Advocate was appointed to a court - martial from the staff of the Chief Naval Judge Advocate .","Before the trial the Judge Advocate appointed informed the convening authority of any defect in the constitution of the court - martial . He advised the court - martial , whether his opinion was requested or not , upon all questions of law and procedure which arose and the court - martial had to accept his advice unless there were weighty reasons for rejecting it , in which case those reasons had to be recorded .","The Judge Advocate had to ensure that the accused did not suffer any disadvantage during the hearing in consequence of , inter alia , the accused \u2019s position , ignorance or incapacity to examine witnesses . Before the closing of the trial the Judge Advocate summed up the relevant law and evidence . The Judge Advocate was not present when the court considered its finding and , if during the court - martial \u2019s deliberations on the charges further advice was required , the court - martial had to receive that advice in open court . The Judge Advocate advised the court - martial on sentence but not in open court .","The accused could object to any particular member of the court - martial and to its general constitution . If the objection to the President was upheld the court had to adjourn until another was appointed . If an objection to a member was upheld , another member could be appointed from the \u201c spare members list \u201d and , if an objection as to the constitution of the court - martial was upheld , the court - martial had to adjourn and report the matter to the convening authority . All members of the court and any other officers of the court - martial had to take a prescribed oath or affirmation ( section CARDINAL of the DATE Act ) . The opinion of the President and of each member of the court - martial had to be given orally and on each charge separately , and their opinions had to be given in order of seniority commencing with the junior in rank . The vote of the majority determined sentence .","Before the court accepted a plea of guilty , the Judge Advocate had to ensure that the accused understood the charge to which he had pleaded and the different procedure which would result from that plea . The Prosecutor then read the circumstantial letter . Before the court proceeded to deliberate on sentence , the ORG , whenever possible , called relevant witness evidence on information in the possession of the naval authorities as to the accused \u2019s background and history which might have rendered the accused more likely to commit the offence , as to his service history and as to his previous convictions . The accused could also give evidence and call witnesses in mitigation . The court - martial had to take note of the accused \u2019s naval record ( for example , awards for gallantry ) . The members of the court - martial retired ( with the Judge Advocate ) to consider the sentence . The court - martial did not give reasons for its decision on sentence .","Having received the report of the finding and sentence , the convening authority took the necessary steps to give effect to the sentence ( either by a committal order or otherwise ) or he could order the suspension of the sentence pursuant to section CARDINAL of the CARDINAL LAW of ORG law ( Volume II ) pointed out that before the convening authority gave effect to or suspended the sentence , he ( or , inter alia , the Commander in Chief ) had to satisfy himself so far as he was able , that no errors had been made in the conduct of the court - martial likely , in his opinion , to invalidate the finding of the court - martial . If he doubted the correctness of the finding , in fact or in law , or the legality of the sentence , he could not execute the sentence pending reference to ORG . In such circumstances , the accused was retained in custody or the sentence was suspended under LAW .","The convening authority ( among other naval authorities ) could at any time , and had to at intervals of not DATE , reconsider any case of suspension and if on reconsideration it appeared that the conduct of the offender since his conviction had been such as to justify a remission of sentence , he had to remit the whole or any part of it ( section CARDINAL of the CARDINAL Act ) .","A certified transcript of the proceedings was completed and sent through the commander - in - chief or senior naval officer to ORG . ORG could , at any time , review a finding of guilt , any sentence awarded in respect of such a finding and any finding by a court - martial that a person was unfit to stand trial or was not guilty by reason of insanity . This had to be done by ORG in the case of a court - martial as soon as practicable after the receipt of the record of proceedings ( section CARDINAL(CARDINAL ) of the DATE Act ) .","A convicted person could also petition ORG against the findings or sentence or both ( section CARDINAL(CARDINAL ) of the DATE Act ) . Having reviewed the petition , ORG could , inter alia , quash or alter findings , authorise a re - trial and annul , remit or alter sentences . However , those powers could be , and were normally , carried out by ORG or by any officer so empowered by ORG . Once an appeal was lodged with ORG , the review functions of ORG ceased . ORG","The Courts - Martial Appeal Court ( \u201c ORG \u201d ) was established by ORG DATE and was confirmed by ORG DATE . The ORG had the same status and , in essence , the same procedure as ORG and considered appeals from courts - martial . The judges of this court included ordinary and ex officio judges of ORG and such judges of ORG as were nominated by the Lord Chief Justice . There was no provision for an appeal against sentence only , although certain powers of revising such sentences , pursuant to an appeal against conviction , were available to the ORG . Once an application to the ORG was received by the Registrar of the ORG , ORG duty to review ceases .","The changes to the naval court - martial system brought about by this LAW are set out in the ORG \u2019s judgment in the case of ORG v. GPE ( [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINALXII ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78606","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF YAVUZ AND OSMAN v. TURKEY","importance":4,"conclusion":"Preliminary objection partially allowed;Violation of Art. 6-1","judges":"","text":["The applicants were born in DATE and DATE respectively . The first applicant lives in Batman and the second applicant is currently detained in FAC .","On DATE the applicants were taken into custody by policemen from the Anti - Terrorism Branch of the Batman Security Directorate on suspicion of their membership of an illegal organisation , namely ORG of Kurdistan ( \u201c the NORP \u201d ) .","On DATE the applicants were brought before the public prosecutor and subsequently the investigating judge , who ordered the applicants ' detention on remand .","On DATE ORG filed an indictment against CARDINAL accused persons , including the applicants . He accused the first applicant of membership of the ORG and requested the court to sentence him under LAW . The public prosecutor further accused the second applicant of carrying out activities aimed at breaking up the unity of the ORG and removing part of the national territory from the ORG 's control . The prosecutor requested the court to sentence him in accordance with LAW .","On DATE the constitution was amended and the military judge sitting on the bench of ORG was replaced by a civilian judge .","DATE and DATE , the court held CARDINAL hearings . On DATE ORG , which was composed of CARDINAL civilian judges , acquitted the first applicant of the charges against him . The court further found the second applicant guilty as charged and sentenced him to the death penalty under LAW . The death penalty was commuted to a life sentence .","On DATE ORG upheld the decision of ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23291","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2003,"docname":"POLMAN v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson","text":["The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the Court by Mr J.H. GPE , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant \u2019s ex - wife requested ORG ( arrondissementsrechtbank ) of GPE to establish a maintenance arrangement ( alimentatievoorziening ) for herself and the CARDINAL children born of their marriage . ORG acceded to this request and ordered the applicant to pay DATE amounts of maintenance both to his children and his ex - wife . The applicant lodged an appeal with ORG ( gerechtshof ) of GPE , which quashed the decision of ORG and reduced the amount of the applicant \u2019s maintenance obligations . As the applicant considered that the reasoning and calculations applied by ORG were both incorrect and incomprehensible , he lodged an appeal on points of law ( beroep in cassatie ) with ORG ( PERSON Raad ) .","In his advisory opinion of CARDINAL DATE , CARDINAL of the advocates - general ( advocaten - generaal ) of ORG recommended that the appeal be dismissed . A reply to this opinion was sent to ORG by counsel for the applicant on DATE . According to a stamp placed on the reply , it was received on DATE .","ORG ( civil - law division , PERSON ) rejected the appeal on DATE . The decision ( beschikking ) stated that the applicant \u2019s ex - wife had requested ORG to reject the appeal and that the advisory opinion of the advocate - general had also proposed that the appeal be dismissed . The decision did not mention that the applicant , or counsel on his behalf , had replied to that opinion or that account had been taken of that reply . In dismissing the appeal , ORG referred to LAW ( Wet op de Rechterlijke Organisatie ) according to which ORG , if it considered that a complaint did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law , could , when giving reasons for its decision , limit itself to that finding .","At the time relevant to the present case , LAW , \u201c ORG \u201d ) provided that neither the parties nor their representatives were allowed to address the court after the public prosecution service had presented its opinion ( LAW in conjunction with LAW . However , pursuant to LAW , simple notes ( eenvoudige aantekeningen ) contesting facts , which the parties believed had been presented incorrectly by the public prosecution service , could be submitted to the President of the court by the parties or their representatives .","In a judgment of DATE , ORG held that it was free to take cognisance of comments submitted in response to the opinion issued by the public prosecution service by one of the parties unless this ran counter to the requirements of due process , seen also in the light of the interests of the other party ( PERSON ( GPE ) DATE , no . CARDINAL ) .","A similar reasoning was adopted by ORG in a judgment of DATE ( GPE DATE , no . CARDINAL ) , in which it held , with reference to the ORG \u2019s judgment in the case of PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-I ) , as follows :","\u201c ... where LAW [ of LAW ] prevents parties from responding to the advisory opinion of the public prosecution service as they see fit , [ this provision ] should be deemed inapplicable as being incompatible with the provisions of LAW , as interpreted in the case - law of ORG ... ) . No restrictions other than those arising from due process , for instance in connection with the interests of the other party , apply to this document [ i.e. the reply to the advisory opinion of the public prosecution service ] . \u201d","In order to observe the principle of due process , ORG allowed a period of DATE for the submission of the response to the advisory opinion of the public prosecution service .","On DATE an amended LAW ORG entered into force , paragraph CARDINAL of which gives parties the right to submit written comments in reply to the advisory opinion issued by PERSON of ORG within DATE of the transmission of the advisory opinion to them .","At the time of the decision in the present case , DATE , the general practice of ORG was to mention in its judgment or decision that a reply to the advisory opinion had been submitted . This was established as general practice in an internal decision ( intern besluit ) of the civil - law division of ORG of DATE , but the practice existed even before that time . The internal decision was not published ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82238","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF TEREN AKSAKAL v. TURKEY","importance":2,"conclusion":"Preliminary objection (ratione temporis) allowed (substantive aspect, art. 2 and 3);Preliminary objection (ratione temporis) dismissed (positive obligations, art. 2 and 3);Preliminary objection dismissed (six month period);Violation of Art. 2 and 3 (procedural aspect);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze","text":["The applicant was born in DATE and lives in GPE . She is the widow of Mr PERSON ( \u201c C.A. \u201d ) , who died on CARDINAL DATE .","On DATE martial law was declared in GPE following military intervention by the army .","On DATE , who was a teacher in the village of ORG , in the province of Artvin , surrendered to the police during a military operation and was taken into custody . He was suspected of belonging to the illegal organisation Dev - Yol ( PERSON ) . He spent DATE in custody at the headquarters of the gendarmerie in ORG and the following CARDINAL at the headquarters of the gendarmerie of the district of PERSON . C.A. , who was in good health at the time of his detention in both locations , was not questioned .","On DATE he was transferred to Artvin , where he was interrogated in a sports hall until the following DATE . On DATE , he was imprisoned in the martial law detention facility ( s\u0131k\u0131y\u00f6netim g\u00f6zetim evi ) .","After having been taken ill on DATE , ORG was admitted to hospital in a pre - comatose state . On DATE , he was transferred by ambulance to ORG where he died on CARDINAL DATE .","According to the autopsy report drawn up on CARDINAL DATE , the following marks were found on the body of the deceased :","\u201c Abrasions measuring QUANTITY , going from the outside towards the inside of DATE ribs , the scabs of which were coming off ; on the right wrist and on the inside of the wrist , a purple mark in the form of CARDINAL parallel bracelets QUANTITY wide and on the mark , CARDINAL wounds , the scabs of which were coming off ; on the left wrist , the same mark , QUANTITY wide ; on the left side of the penis , a wound without a scab ; on the left foot , a wound with a scab measuring CARDINAL x QUANTITY , with , underneath , a bruise measuring QUANTITY ; CARDINAL wounds with scabs under the left knee , a wound with a scab measuring CARDINAL x QUANTITY inside the left tibia ... ; bruising on the top and lateral surface of the right foot . \u201d","Since the cause of death could not be established on the basis of this information , a conventional autopsy was performed . An examination of the skull and ribcage revealed \u201c ecchymosis measuring QUANTITY at the back , a large haematoma inside the cervical cavity ; an infection of the lungs ... \u201d A post - mortem examination was deemed necessary .","NORP In her complaint lodged with the public prosecutor on DATE , the applicant stated :","\u201c CARDINAL soldiers , accompanied by the village schoolmaster came to our house on DATE before the religious holiday . They took my husband away saying that the lieutenant wanted to talk to him . He was held at the village gendarmerie for DATE . During that time , I was able to visit him and he was well . He was then transferred to the gendarmerie in the district of PERSON ; I was no longer able to visit him . I was told that he remained there for DATE and was then taken to Artvin .... When they returned his body to me , I noticed abrasions and signs of injuries . His tongue was as big as that of an animal , CARDINAL of his teeth were broken , ... there were marks of torture all over his body . Before being arrested , he had been in good health . \u201d","According to the administrative investigation report ( idari tahkikat raporu ) of CARDINAL DATE signed by CARDINAL officers , during the course of a military operation on DATE C.A. had been arrested after having obeyed an order to surrender . On DATE he had been placed in custody at the ORG gendarmerie , where he remained for DATE . He spent DATE at the gendarmerie of the district of PERSON . During this period no sign of any health problem was recorded . On CARDINAL October CARDINAL C.A. was transferred to the police headquarters at Artvin where he was questioned . After having been held at the police headquarters for DATE , he was transferred , on DATE , to the surveillance facility ( FAC evi ) attached to the martial law command . According to the records of that establishment , no sign of illness had been noted upon his arrival . On DATE , at his request , he was transferred to ORG . The head physician at that hospital stated that he had asked GPE if he had been hit on the head or on the body ; C.A. allegedly replied that he had not . According to the report drawn up by the hospital , meningitis and pneumonia were diagnosed . DATE , the patient was transferred to ORG where he died on DATE . The report concluded that this was a \u201c natural death \u201d ( ecel ) .","On DATE CARDINAL police officers , GPE , GPE and GPE , were questioned as suspects by the martial law prosecutor . They were the police officers who had taken ORG statement on DATE in a room at the sports hall . The police officers stated that they had not subjected C.A. to any mistreatment and had not found any evidence against him during questioning . GPE stated that on DATE , when the report was being drawn up in the presence of GPE , the latter was groaning . When the police officer asked what the matter was , the applicant replied that he had caught a chill and that he had pains in his chest . The QUANTITY police officers stated that they had brought GPE to the gendarmerie on DATE , that on DATE he was to have been placed in the military prison at Artvin , but was detained in custody by the gendarmerie until DATE , notwithstanding the orders of the martial law commander .","On DATE , at the request of the PERSON public prosecutor \u2019s office , the body of GPE was exhumed in order to examine the deceased \u2019s skull . According to the report dated CARDINAL September CARDINAL drawn up by the forensic institute , the skull showed no sign of trauma , apart from separation at the right temporo - occipital suture .","According to the report of CARDINAL DATE issued by the GPE forensic institute upon completion of the post - mortem examination of samples of tissue taken from ORG body , the latter had died of pneumonia with spinal haemorrhaging ( subaraknoidal kanama ) having lasted DATE , and showed no signs of traumatic injury .","In an indictment dated DATE drawn up by the military prosecutor at the martial law command , the QUANTITY police officers ( see paragraph QUANTITY above ) on duty at the material time at Artvin police station were accused of having caused the death of GPE after torturing him . The prosecutor stated that the accused had interrogated C.A. in a sports hall instead of in the customary location and that they had concealed their names at the foot of his statement , in breach of the relevant regulations . He also referred to the statements of several witnesses who had seen C.A. on the premises of Artvin police station , once attached to the wall , his arms outstretched , and another time in a deplorable condition , paralysed and unable to speak .","The applicant joined the criminal proceedings brought before ORG No . CARDINAL attached to the martial law command ( \u201c the military court \u201d ) .","On DATE , a gendarme , GPE , examined as a witness before ORG , stated that he had \u201c maybe seen \u201d C.A. \u2019s interrogation but had not participated in it . He stated that he had not noticed any ill treatment during the interrogation , which had been conducted on the top floor of gendarmerie LOC or in the sports hall . He stressed that as commander of the gendarmerie centre ( jandarma merkez komutan\u0131 ) , his role was limited to appointing the interrogation team guards .","NORP The report of CARDINAL DATE , unanimously adopted by the plenary meeting of the forensic institute , reads :","\u201c On DATE , while in police custody , C.A. was taken to ORG in a comatose state . First aid was administered on the basis of the diagnosis of meningitis and pneumonia . On the following DATE , he was transferred to ORG in a comatose state , with hemiplegia on the left - hand side . He died on CARDINAL DATE . The ecchymoses noted at the autopsy revealed that violence and assault had been involved and that the party concerned had died of an intracranial haemorrhage . As regards the clinical presentation , a pre - existing underlying condition was noted which prepared the ground for the haemorrhage which was triggered by the trauma . Since a causal link has been established between the cranial trauma and the death , Articles CARDINAL or CARDINAL \u00a7 CARDINAL of the [ NORP ] Criminal Code are applicable in the instant case . \u201d","The accused denied the charges against them throughout the proceedings . They declared that they had never had any contact with C.A. save at the start of the interrogation . Certain witnesses who had initially testified against the accused subsequently retracted their statements .","In a judgment of CARDINAL DATE , the accused were each sentenced to DATE and CARDINAL months\u2019 imprisonment under ORG CARDINAL and CARDINAL \u00a7 CARDINAL of LAW .","The accused , the applicant and the martial law commander appealed on points of law .","NORP In a judgment delivered on DATE , ORG quashed the first - instance judgment on the ground that the degree of responsibility of the other persons , notably officers and members of ORG ( PERSON , hereafter \u201c the LOC \u201d ) having taken part in the interrogation of GPE , had not been established and that the defence witnesses had not been heard .","After having conducted a more thorough investigation and having examined further witnesses , in a new judgment of CARDINAL DATE the first - instance court acquitted the QUANTITY police officers on grounds of insufficient evidence .","The applicant again appealed on points of law .","By a judgment of CARDINAL DATE , ORG again overturned the judgment at first instance . In its judgment it stated that the records of the ORG command contained no entry concerning ORG and that there was therefore no accurate information on the dates of his arrival or transfer or the identity of the officers in charge of his case . It added that , furthermore , the case file contained no details of the place and conditions of the initial interrogation conducted on DATE , or the actual conditions of the interrogation of CARDINAL DATE . It pointed out that even though the accused had stated that the deceased was not \u201c a significant suspect \u201d the fact that agents of the ORG had participated in his interrogation suggested the opposite . In the opinion of the court , the treatment subsequently inflicted on the party concerned confirmed this argument . ORG concluded that given that C.A. had been interrogated and tortured during his detention on the gendarmerie LOC and up until DATE by the accused and other persons whose functions had not been ascertained , the omissions in the investigation had to be remedied and , in particular , the gendarmes , the members of the ORG and any other persons present at the material time and place should be questioned .","On DATE GPE \u2019s recognition of the right of individual petition became effective .","The case file was returned to ORG , which , after having re - examined it in the light of numerous new witness statements , confirmed its decision of CARDINAL DATE acquitting the accused . It concluded that the act of torture had been committed DATE and DATE by persons other than the accused . It gave notice ( ihbar ) that a new investigation was to be opened by the PERSON public prosecutor \u2019s office . That decision became final on DATE .","The investigation and correspondence between the military courts and the PERSON public prosecutor \u2019s office continued . However , a gendarme , PERSON , examined as a witness on DATE before ORG , following a request for judicial assistance , stated that he had taken leave on DATE for DATE .","By an indictment of CARDINAL DATE , the prosecutor at ORG ( \u201c the ORG \u201d ) charged CARDINAL new accused , GPE and GPE , gendarmes at the PERSON gendarmerie , who had been examined as witnesses before the military courts ( see paragraphs DATE and CARDINAL above ) with the acts of torture having caused the death of C.A.","The applicant sought to intervene in the proceedings before ORG .","DATE hearings were conducted before this court . DATE or so witnesses were questioned , some following a request for judicial assistance . Some hearings were postponed as a result of problems in ensuring the appearance of witnesses who for the most part had been co - detainees of the deceased and present on the LOC on which he had been subjected to the torture . All the witnesses stated that they had seen C.A. being tortured and some stated that they had seen the accused at the scene of the crime .","At the hearing of CARDINAL DATE the applicant stated , inter alia , that her husband had been unrecognisable when she saw him at ORG . She filed a complaint against the first doctor who had examined him in PERSON and who had drawn up a certificate , which , according to her , was untruthful , concealing ORG condition .","By a decision of CARDINAL DATE ORG sentenced both of the accused to DATE and CARDINAL months\u2019 imprisonment under Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW . They were also banned from public office for DATE .","On an appeal by the accused , ORG overturned that decision in a judgment of DATE on grounds of shortcomings in the investigation . An inconsistency between the leave dates of the accused needed to be resolved and verification was required that the dates on which the witnesses and C.A. had been detained actually did coincide .","After having remedied the shortcomings highlighted by ORG , ORG decided , on DATE , to acquit both of the accused on grounds of insufficient evidence .","The applicant appealed on points of law against that decision .","By a judgment of DATE , ORG overturned the decision on the ground that under LAW NORP ] Code of Criminal Procedure , the accused , who were officers at the material time , could not be tried without authorisation from ORG .","By a decision of DATE , ORG suspended the proceedings for the same reason .","The authorisation in question having been granted by ORG on DATE , a new indictment was issued on the following DATE in respect of the same CARDINAL accused , this time by ORG at ORG .","During these proceedings , around QUANTITY hearings were held . As they had done previously , the accused denied any responsibility in the death of GPE , stating that they had never taken part in his interrogation . PERSON stated that on DATE in question he had been involved in operations in the PERSON and GPE , and PERSON stated that he had been on leave . The same witnesses ( see paragraph CARDINAL above ) were examined again , some following a request for judicial assistance , and repeated the statements made at the start of the proceedings .","On DATE ORG delivered its judgment , referring in particular to the testimony of the co - detainees who had been present at Artvin police station at the same time as FAC of these witnesses stated that they had seen C.A. naked , attached to the radiator , wet and trembling , with injuries to his hands and wrists . CARDINAL of them stated that officer PERSON had threatened them , pointing at C.A. and saying \u201c Look at what has happened to him ; if you do n\u2019t sign , the same thing will happen to you . \u201d A detainee who had been in the neighbouring cell stated that he had heard C.A. moaning constantly , that in the evenings they would take him away for questioning naked , and that officers PERSON and GPE and CARDINAL men in civilian clothing would beat him in the middle of the room as a lesson to the others . Another witness stated that he had seen PERSON and others beat C.A. with truncheons while he was lying on the ground in a pool of water , all the while continuing to spray him with water . He stated that he had heard the sound of a magneto ( a magneto - electric machine ) and the delirious voice of C.A. uttering the names of his children , unable to walk , his body covered in wounds . These eyewitnesses stated that they had generally had their eyes covered but that sometimes the blindfold had come off , or they had recognized the ORG voices . CARDINAL other detainee witnesses stated that they had seen that the applicant had been tortured , but did not know who had done it . The court considered that the testimony of the co - detainees was only partially credible given their status as detainees and the fact that they would normally have had their eyes covered . In the reasons for the judgment , the court observed that the leave records relating to GPE kept by the gendarmerie command had been falsified and declared that his statements were not credible . As for GPE , the court pointed out an inconsistency between his statement of CARDINAL DATE ( see paragraph CARDINAL above ) and his subsequent statements . According to the court , the accused were indirectly responsible for the death of C.A. It added that \u201c a team of CARDINAL civilians \u201d had also taken part in the interrogations , but gave no details of the identity , function or action of these QUANTITY individuals . It concluded that it had not been definitively established that the accused had themselves tortured the deceased but that they had acted as accomplices to the illegal act by issuing orders ( talimat vermek ) , by procuring the LOC ( yer tedarik etmek ) and by failing to intervene [ to prevent the illegal act ] ( g\u00f6z yummak ) . It found that the accused , together with civilians , had participated in the interrogation of GPE and that the latter had died as a result of his pre - existing condition ( \u00f6nceki hastal\u0131\u011f\u0131 ) and as a result of the torture inflicted by one or more of these civilians whose identity could not be established . The court sentenced PERSON and GPE to DATE and DATE imprisonment under ORG CARDINAL and CARDINAL \u00a7 CARDINAL of LAW . The court accepted CARDINAL mitigating circumstances to reduce the sentences : the personality of the accused as evidenced by the case file ( dosyadaki ki\u015filikleri ) and the fact that they were mere accomplices ( fer\u2019\u00ee fail ) rather than the main perpetrators of the crime .","The accused officers and the applicant appealed on points of law .","By a judgment of CARDINAL DATE , ORG upheld the judgment of ORG .","On DATE ORG rejected an application for \u201c rectification of the judgment \u201d ( karar d\u00fczeltme ) lodged by the convicted officers .","On DATE the officers applied to ORG for renewal of the judgment ( yarg\u0131laman\u0131n yenilenmesi ) , an exceptional review procedure . The result of this application , accepted by ORG for consideration on the basis of various written testimonies submitted by civilians and military personnel and a letter from ORG command , was that execution of the sentences was suspended .","At the request of the accused , ORG gave a decision on DATE referring a matter concerning the discriminatory nature of a provision governing the content of an amnesty law to ORG .","By a decision of DATE , ORG declared that the provision in question was by no means unconstitutional .","By a judgment of DATE , after having heard new defence witnesses , notably CARDINAL officers , ORG dismissed the application lodged by the CARDINAL officers on the ground that the new evidence was not such as to create a favourable situation for the convicted officers . It lifted the stay of execution of their sentences .","The officers finally referred their case to the Minister of ORG for the latter to lodge an appeal with ORG ( GPE emir ile bozma ) against their conviction . Having accepted their application , on DATE the Minister of ORG ordered ORG at ORG to lodge an appeal in the interests of the law on the ground that the evidence had not been properly assessed by ORG .","By a judgment of DATE , ORG dismissed the ORG application .","NORP The officers continued to serve in the army throughout the proceedings until their retirement . Their sentences have not been executed to date .","The relevant parts of the above - mentioned provisions of LAW in force at the material time read as follows :","\u201c ... any public servant who tortures an accused or employs cruel , inhuman or degrading treatment to make him confess to a crime shall be liable to a maximum term of DATE imprisonment plus a permanent or temporary ban on holding public office . ... \u201d","\u201d Should death occur as a result of assault or violence inflicted with no intent to kill , the perpetrator shall , in the cases listed in LAW ... be liable to a minimum term of CARDINAL years\u2019 imprisonment ...","Where death results from circumstances which had existed prior ... to the offence and were unknown to the offender or from chance circumstances that the offender could not foresee , he shall , in the cases listed in LAW , be liable to a minimum term of CARDINAL years\u2019 imprisonment ... \u201d","Article CARDINAL of LAW provides that where a claim of unconstitutionality is referred to a court by one of the parties to the proceedings , and where that court considers that the question should be referred to ORG , that referral shall suspend the proceedings before it for DATE . If ORG fails to reach a decision within that period , the court shall deliver its judgment under the existing legal provisions . However , if ORG gives a ruling before the lower court has given its final decision , the lower court is obliged to comply with it ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93265","languageisocode":"ENG","respondent":"CHE","branch":"GRANDCHAMBER","date":2009,"docname":"CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2)","importance":1,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (lack of jurisdiction);Violation of Art. 10","judges":"Alvina Gyulumyan;Andr\u00e1s Saj\u00f3;Anatoly Kovler;Christos Rozakis;Corneliu B\u00eersan;Egbert Myjer;Fran\u00e7oise Tulkens;Giorgio Malinverni;Isabelle Berro-Lef\u00e8vre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Ledi Bianku;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mihai Poalelungi;P\u00e4ivi Hirvel\u00e4;Renate Jaeger;Snejana Botoucharova","text":["NORP The applicant association is dedicated to animal protection , campaigning in particular against animal experiments and battery farming .","NORP In response to various advertisements produced by the meat industry , the applicant association made a television commercial lasting TIME , consisting of CARDINAL scenes .","The first scene showed a sow building a shelter for her piglets in the forest . With soft music playing in the background , the voiceover referred , among other things , to the GPE sense of family . The second scene showed a noisy hall with pigs in small pens , gnawing nervously at the iron bars . The voiceover compared the conditions in which pigs were reared to concentration camps , and added that the animals were pumped full of medicines . The advertisement concluded with the exhortation : \u201c Eat less meat , for the sake of your health , the animals and the environment ! \u201d","Permission to broadcast the commercial on the channels of ORG ( Schweizerische Radio- und Fernsehgesellschaft ) was refused on DATE by the company responsible for television advertising ( ORG ( ORG f\u00fcr das LOC ) , now called ORG ) and , at final instance , by ORG , which dismissed an administrative - law appeal by the applicant association on DATE .","In respect of the applicant association \u2019s complaint under LAW , ORG found that the prohibition of political advertising laid down in section PERSON ) of ORG pursued various aims ; in particular , it was designed to prevent financially powerful groups from obtaining a competitive political advantage , to protect the formation of public opinion from undue commercial influence , to bring about a certain equality of opportunity among the different forces of society , and to contribute towards the independence of radio and television broadcasters in editorial matters .","On DATE the applicant association lodged an application with ORG under former LAW .","The application was transmitted to ORG on DATE , when Protocol No . CARDINAL to the LAW came into force ( LAW ) .","In a decision of DATE , the ORG declared the application partly admissible .","In a judgment of DATE , ORG held that the refusal by the relevant NORP authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by LAW ( see ORG gegen PERSON v. GPE , no . CARDINAL , ORG CARDINALVI ) .","The ORG found that the measure taken had been \u201c prescribed by law \u201d and had pursued a legitimate aim for the purposes of LAW .","As to whether the measure had been \u201c necessary in a NORP society \u201d within the meaning of that provision , the ORG noted , in particular , that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster \u2019s independence , unduly influencing public opinion or endangering equality of opportunity among the different forces of society . On the contrary , it had simply intended to participate in an ongoing general debate on the protection and rearing of animals . Accordingly , in the ORG","The ORG also found that there had been no violation of LAW and CARDINAL of the Convention . As to the application of Article CARDINAL , it ordered GPE to pay the sum of MONEY ( CHF ) ( MONEY ( ORG ) DATE ) for costs and expenses . However , it made no award to the applicant association for non - pecuniary damage .","On DATE the applicant association again applied to ORG for permission to broadcast the same commercial with the addition of a comment referring to the ORG \u2019s judgment and criticising the conduct of ORG and the NORP authorities .","In a letter of DATE , ORG refused the application .","On DATE , on the basis of the ORG \u2019s judgment , the applicant association applied to ORG for the final judgment given at domestic level to be reviewed , in accordance with section ORG ) of the former LAW ( see paragraph CARDINAL below ) . The application was worded and substantiated as follows :","\u201c In the case of ORG gegen GPE ( PERSON ) , PERSON , v. ORG , ORG and ORG , ORG ) :","I hereby request on behalf of ORG that ORG judgment of DATE be reviewed and that the administrative - law appeal of DATE be allowed .","Reasons : In its judgment of DATE , ORG upheld an application challenging ORG judgment of which I am seeking a review ( see Annex CARDINAL ) . The judgment was served on DATE ( see FAC ) ; this application for review has therefore been lodged in time .","Yours faithfully ... \u201d","ORG , Energy and Communication and ORG submitted in their respective observations of DATE and DATE , which were duly transmitted to the applicant association , that the application to reopen the proceedings should be dismissed .","In a judgment of DATE , ORG dismissed the application to reopen the proceedings . It held that the applicant association had not provided a sufficiently detailed explanation of the nature of \u201c the amendment of the judgment and the redress being sought \u201d , a formal requirement imposed by CARDINAL of the former LAW ( see paragraph CARDINAL below ) . It observed , in particular , that the applicant association had been unable to show that redress was possible only through the reopening of the proceedings . It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial , which now appeared out of date almost eight years after it was initially intended to have been broadcast . Lastly , ORG considered that the fresh refusal by ORG , the competent authority in such matters , to sign a new agreement to broadcast the commercial should have formed the subject of separate proceedings . The relevant passages of the judgment read as follows :","\u201c ...","CARDINAL Section CARDINAL of the Federal Judicature Act provides that an application for review must indicate , with supporting evidence , the ground relied on for the reopening of proceedings and whether it has been raised in due time . It is not enough simply to claim that the ground exists ; it is also necessary to explain why , and to what extent , the operative provisions must be amended as a result ( PERSON , \u2018 Revision und Erl\u00e4uterung\u2019 , note CARDINAL , in LAW , PERSON , CARDINALnd ed . , PERSON ) .","CARDINAL The application to reopen the proceedings in the instant case does not meet these formal requirements . The applicant association has sought the review of ORG judgment without explaining the extent to which this is necessary following ORG judgment of DATE . PERSON evidently assumes that ORG decision against GPE in itself makes the reopening of the proceedings necessary , but that is not the case . The mere fact that the ORG , ruling on an individual application , has found a violation of the ORG does not mean that the ORG judgment in issue must automatically be reviewed in accordance with domestic law ( see judgment ORG DATE in the LOC case , point CARDINAL \/ cc ; PERSON , \u2018 EMRK - Verletzung und bundesrechtliche Revision nach Art . PERSON , in recht DATE , p. CARDINAL ; PERSON , op . cit . , p. CARDINAL ; ORG , op . cit . , p. CARDINAL ; BBl DATE II CARDINAL , p. CARDINAL ) . Being a subsidiary remedy , reopening is justified only if it appears to remain necessary notwithstanding the compensation awarded by ORG and constitutes the only means of obtaining redress ( see PERSON , op . cit . , p. CARDINAL ; PERSON , op . cit . , p. CARDINAL ) . The application to reopen the proceedings must give at least a broad indication of how redress may be obtained only by this means ( see judgment ORG in the LOC case , point CARDINAL \/ cc ) .","CARDINAL ...","ORG evidently once again refused to conclude an advertising agreement with ORG , which appealed against the refusal to ORG ; the proceedings are still pending . By taking this action , PERSON itself proves that it is not continuing to suffer any practical adverse effects that can only be redressed by reopening the proceedings . It does not claim that it still has an interest in having the original commercial broadcast ; it is , moreover , unlikely that this is the case , since ORG \u2019s primary objective is no longer ( solely ) to encourage a decline in meat consumption and to denounce the conditions in which animals are reared ( which are also likely to have changed in DATE since the commercial was intended to have been broadcast ) , but to publicise ORG finding of a violation of its freedom of expression . It is thus no longer the same commercial that is under discussion DATE . The consequences of the Convention violation committed at the time were redressed as a result of the judgment against GPE and the award of just satisfaction under LAW ; the new agreement which ORG now wishes to conclude must form the subject of separate proceedings .","...","CARDINAL NORP In its judgment of DATE , ORG held that PERSON \u2019s commercial was subject to the public - law prohibition on political advertising set forth in section PERSON ) of ORG and could provide ORG , or rather ORG , with a valid reason for not concluding the advertising agreement . ORG did not share this view and held that there was no justification in a NORP society for refusing to broadcast a commercial on the ground that it constituted political advertising , which was banned on television . ORG did not express an opinion on whether and to what extent GPE , by not ensuring that the commercial could be broadcast , had breached any positive obligations resulting from the extension of the LAW safeguards to relations between private entities ( see paragraph CARDINAL of the ORG \u2019s judgment ) . The subject of ORG judgment was the finding by the authorities that ORG \u2019s commercial could be considered \u2018 political\u2019 within the meaning of ORG and that the refusal to broadcast it could be justified on this public - law ground alone . The judgment did not deal with the question whether ORG had boycotted PERSON , whether the company dominated the advertising market and whether , on that account , it would have been under an obligation to conclude an advertising agreement . These ( civil law ) aspects of an obligation to contract must be addressed in the appropriate form of civil proceedings ( concerning cartel law , competition law or the general law relating to personality rights ) and not under the law governing trading licences . This argument , which GPE put forward , was not contested by ORG .","CARDINAL In this connection , by enacting the relevant ( civil ) legislation and establishing judicial remedies to implement it , GPE has complied with its positive obligation under LAW to ensure the appropriate realisation among private entities of the rights guaranteed by the LAW . The rules of competition and cartel law or the possibility of asserting a civil - law obligation to contract are intended to encourage a means of implementing fundamental rights that is fair and strikes a balance between the various interests at stake in the sphere of economic relations between private entities . ORG is free to use this legal remedy in seeking to have its commercial broadcast , provided that , contrary to what has been said above , it still has a real interest in the broadcast ; in that eventuality , due regard will have to be had in the proceedings to its constitutional rights and the principles enshrined in LAW ( see LAW ) . The judgment of ORG does not conflict with this view ; however , all that can be inferred from the judgment is that the classification of the commercial as \u2018 political advertising\u2019 did not justify refusing to broadcast it , or that the broadcasting of the commercial by ORG , on the basis of LAW , should not have had any consequences for the broadcaster under the law relating to trading licences . ORG rightly points out that the judgment can not be construed as requiring it to broadcast the commercial in issue in breach of the existing legal rules ( such as the provisions of LAW ) , since ORG did not address the corresponding questions , limited itself to examining the issue of \u2018 political\u2019 advertising and did not state any position on ORG \u2018 NORP freedom of expression . Since the ORG \u2019s judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial , ORG must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure , should ORG , or rather ORG , still refuse to broadcast it ( see ORG , PERSON ideeller PERSON i m GPE , dissertation , GPE DATE , pp . CARDINAL et seq . ; PERSON , \u2018 PERSON , in ORG Zimmerli ( eds . ) , PERSON , PERSON , note CARDINAL ; PERSON , \u2018 ORG f\u00fcr Werbung und ORG , in ORG , pp . CARDINAL et seq . , in particular p. CARDINAL , footnote CARDINAL ) .","CARDINAL NORP ORG can not be directly ordered to broadcast the commercial in issue , since ORG has no power in public law to give such an order . The applicant association had requested ORG to issue a declaratory order to the effect that , under LAW , PERSON was entitled to have its commercial broadcast ( \u2018 right to broadcast ORG ) . ORG acknowledged from a procedural point of view that a right to have such an order issued existed ( LAW in conjunction with LAW ) but ruled in the instant case \u2013 wrongly in ORG view \u2013 on the basis of section PERSON ) of ORG that there was no right of access to television for political advertising . If ORG had decided in the same way as ORG , it would have had to limit itself to finding that ORG had not been entitled to refuse to broadcast the commercial on the ground that it was political in nature , or rather that reliance on this ground for the refusal was contrary to LAW . On the other hand , given the lack of legal basis , ORG could not have ordered ORG to broadcast the commercial in the context of proceedings governed by broadcasting legislation ( see PERSON , op . cit . , note CARDINAL ) . PERSON is now seeking such an order solely by way of the reopening procedure , but it can not obtain it in relation to the decision to be reviewed . ORG can not make an order , following a judgment of ORG , that it was not empowered to make in the original proceedings ( see judgment CARDINAL of DATE in the PERSON case , point CARDINAL \/ bb , published in ORG DATE , p. CARDINAL ) .","... \u201d","On DATE ORG dismissed an appeal by the applicant association against ORG decision of CARDINAL DATE refusing permission to broadcast the commercial featuring the additional comment .","ORG , which had not been informed either by the applicant association or by the Government that ORG had dismissed the application for review , concluded its examination of application no . CARDINAL on DATE by adopting PERSON , the relevant parts of which read :","\u201c ...","Having regard to the Rules adopted by ORG concerning the application of LAW ;","...","Whereas during the examination of the case by ORG , the Government of the respondent ORG gave the ORG information about the measures taken preventing new violations of the same kind as that found in the present judgment ; this information appears in the appendix to this resolution ;","...","Declares , after having taken note of the information supplied by the Government of GPE , that it has exercised its functions under LAW in this case .","Appendix to ORG ResDH(CARDINAL)CARDINAL","Information provided by the Government of GPE during the examination of ORG gegen PERSON case by ORG","As regards individual measures , the judgment was transmitted to the applicant , who was entitled to request the revision of ORG judgment of DATE .","Concerning general measures , the judgment has been sent out to ORG , ORG , ORG , and ORG and to ORG .","In addition , the ORG \u2019s judgment has been published in the journal Jurisprudence des autorit\u00e9s administratives de la Conf\u00e9d\u00e9ration no . CARDINAL\/IV(CARDINAL ) , and can be consulted on the following website : ... The judgment has also been mentioned in ORG on the NORP activities at ORG in DATE , which has been published in the GPE f\u00e9d\u00e9rale no . CARDINAL\/CARDINAL .","The Government of GPE considers that , given the information mentioned above , there will no longer exist a risk of a repetition of the violation found in the present case and , consequently , GPE has satisfied its obligations under LAW \u00a7 CARDINAL of the LAW . \u201d","In a letter of DATE , the applicant association informed ORG refusal to review the judgment of DATE following the ORG \u2019s finding of a violation of LAW .","On DATE ORG informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the ORG \u2019s consideration of the application lodged in DATE in the present case .","Sections CARDINAL et seq . of the former LAW , which was in force until DATE , concerned , inter alia , the review of judgments of ORG . Section CARDINAL(a ) provided :","\u201c CARDINAL . A decision of ORG or of a lower court may be reviewed if ORG has granted an individual application on account of a breach of LAW DATE for ORG and its Protocols , and redress is possible only through such a review .","NORP If ORG determines that a review is called for , but a lower court has jurisdiction , it shall refer the case to the lower court to reopen proceedings in the matter .","NORP The cantonal court shall then decide on the application for a review even if cantonal law does not envisage such a ground for the reopening of proceedings . \u201d","Section CARDINAL of the Act provided :","\u201c The application for review must indicate , with supporting evidence , the ground relied on for the reopening of proceedings and whether it has been raised in due time ; it must also state the nature of the amendment of the judgment and the redress being sought . \u201d","Thus , on the basis of section CARDINAL , ORG on DATE partly revised CARDINAL of its judgments after the ORG had found a violation in GPE v. GPE ( DATE , Reports of Judgments and Decisions CARDINALVI ) . It held , in particular :","\u201c ... The judgment of ORG may afford the applicant satisfaction and , through the award of CHF CARDINAL , financial compensation for the cost of the proceedings . But it does not remove the restrictions imposed on the applicant by ORG and confirmed by ORG in its judgment of DATE . These restrictions may be upheld only within the bounds of necessity as defined by ORG . Since those restrictions may be lifted or limited only by means of an appeal to ORG , the requirement of section ORG ) of MONEY is met ... \u201d","Section CARDINAL of LAW of DATE , in force since DATE , reproduces the content of section ORG ) of the former ORG . It provides :","\u201c An application for review of a judgment of ORG on account of a violation of LAW DATE for ORG may be submitted if the following conditions are satisfied :","( a ) ORG , in a final judgment , has found a violation of the ORG or its Protocols ;","( b ) compensation can not remedy the effects of the violation ;","( c ) the review is necessary to remedy the effects of the violation . \u201d","In a judgment of DATE ORG granted an application to reopen the proceedings following the ORG \u2019s finding of a violation of LAW and Others v. GPE ( no . CARDINAL\/CARDINAL , DATE ) , and set aside its judgment of CARDINAL DATE . The relevant parts of ORG judgment read as follows :","\u201c As to the law :","By virtue of CARDINAL ) of LAW , an application for review of a judgment of ORG on account of a violation of the ORG may be submitted if ORG , in a final judgment , has found a violation of the LAW or its Protocols . In such an event , the application for review must be lodged with ORG DATE after ORG judgment has become final within the meaning of LAW ( section CARDINAL(CARDINAL)(c ) of LAW ) . Having been parties to the proceedings that resulted in the impugned judgment , the applicants have locus standi . The judgment became final on DATE ; the application has therefore been lodged in time . The application also states the ground relied on for reopening the proceedings and the nature of the amendment of the judgment being sought ; it should therefore be considered on the merits .","The submission that the ORG should be ordered to pay the applicants the sums awarded by ORG in respect of non - pecuniary damage and costs and expenses can not , however , be dealt with in the present review proceedings . Accordingly , it is inadmissible .","NORP The basis in LAW for reopening the proceedings is subject to several conditions . Thus , an individual application must have been upheld by ORG in a final judgment finding a violation of a right guaranteed by LAW ( subsection ( a ) ) ; compensation can not remedy the effects of the violation ( subsection ( b ) ) ; and the review must be necessary to remedy the effects of the violation ( subsection ( c ) ) . The conditions laid down in this provision are similar to those which applied under LAW ( section ORG ) ) , with the result that , in principle , the case - law under the previous legislation retains its full force .","CARDINAL NORP In the instant case ORG found that the severing of the mother - child relationship following the child \u2019s adoption by her mother \u2019\u2019 right to respect for family life and , on that account , a violation of LAW . ORG judgment has , moreover , been final since DATE ( section CARDINAL ) of LAW ) . Furthermore , it is clear that no award of compensation can afford redress for the loss of the mother - child relationship as a result of the adoption ( section CARDINAL(b ) of LAW ) . The first CARDINAL conditions in section CARDINAL of ORG are therefore satisfied .","It remains to be ascertained whether a review of ORG judgment is necessary to remedy the effects of the violation of LAW ( section CARDINAL(c ) of LAW ) . The mere fact that there has been a breach of the LAW does not mean that the decision referred to ORG has to be reviewed . This follows from the very nature of the reopening procedure , which is an extraordinary remedy . Accordingly , if there is another ordinary remedy that could afford redress , that remedy should be used first . The answer to this question depends on the nature of the Convention violation that has been found . Where only material interests remain at stake , the proceedings can not in principle be reopened . However , where the unlawful situation persists despite ORG finding of a violation of the LAW , a review is possible . The proceedings are then reopened within the limits of the relevant ground ( see , with reference to LAW , judgment CARDINAL of DATE , point CARDINAL \/ bb , published in : PERSON DATE no . CARDINAL , p. CARDINAL , and the judgments cited ; and , with reference to LAW , PERSON , in ORG , PERSON , note CARDINAL on section CARDINAL ; judgment PERSON of DATE , point CARDINAL ) .","ORG held on this point that the annulment of the adoption for lack of consent would not be able to remedy the effects of adoption at the origin of the dispute . An action to that end could not , according to ORG case - law , be regarded as an effective remedy on the basis of which a plea of inadmissibility could be raised against the applicants for failure to exhaust domestic remedies . ORG also held that the adopter and the adopted person \u2019s mother could not be required to marry in order to restore the adopted person \u2019s relationship with her mother . In the ORG \u2019s view , it is not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wish to adopt . The concept of family under LAW is , moreover , not confined to marriage - based relationships . Accordingly , unless the mother - daughter relationship is restored and an amendment to that effect is made to the civil - status register , it must be acknowledged that the unlawful situation will persist .","Accordingly , the application for review should be allowed and the judgment of CARDINAL DATE should be set aside .","... \u201d","On DATE , at the CARDINALth meeting of ORG , ORG Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG :","\u201c ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,","Considering that the aim of ORG is to bring about a closer union between its members ;","Having regard to ORG ( hereinafter \u2018 the Convention\u2019 ) ;","Noting that under LAW have accepted the obligation to abide by the final judgment of ORG ( \u2018 the ORG ) in any case to which they are parties and that ORG shall supervise its execution ;","Bearing in mind that in certain circumstances the above - mentioned obligation may entail the adoption of measures , other than just satisfaction awarded by ORG in accordance with LAW and\/or general measures , which ensure that the injured party is put , as far as possible , in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum ) ;","Noting that it is for the competent authorities of the respondent ORG to decide what measures are most appropriate to achieve restitutio in integrum , taking into account the means available under the national legal system ;","Bearing in mind , however , that the practice of ORG in supervising the execution of the ORG \u2019s judgments shows that in exceptional circumstances the re - examination of a case or a reopening of proceedings has proved the most efficient , if not the only , means of achieving restitutio in integrum ;","I. Invites , in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve , as far as possible , restitutio in integrum ;","II . Encourages the Contracting Parties , in particular , to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re - examination of the case , including reopening of proceedings , in instances where the ORG has found a violation of the LAW , especially where :","( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue , which are not adequately remedied by the just satisfaction and can not be rectified except by re - examination or reopening , and","( ii ) the judgment of the ORG leads to the conclusion that","( a ) the impugned domestic decision is on the merits contrary to the LAW , or","( b ) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of .","Explanatory memorandum","...","Paragraph CARDINAL sets out the basic principle behind the recommendation that all victims of violations of the ORG should be entitled , as far as possible , to an effective restitutio in integrum . The Contracting Parties should , accordingly , review their legal systems with a view to ensuring that the necessary possibilities exist .","... \u201d","Paragraph CARDINAL of the Report by ORG of ORG on execution of judgments of ORG . DATE , DATE ) reads as follows :","\u201c Since the ORG does not tell GPE how to apply its decisions , they must consider how to do so themselves . The obligation to comply with judgments is an obligation to produce a specific result \u2013 to prevent further violations and repair the damage caused to the applicant by the violation . ... \u201d","On DATE , at the ORG meeting of ORG , ORG for the supervision of the execution of judgments and of the terms of friendly settlements :","\u201c Rule CARDINAL","The exercise of the powers of ORG under LAW to CARDINAL and LAW of LAW is governed by the present Rules .","...","Rule CARDINAL : Information to ORG on the execution of the judgment","When , in a judgment transmitted to ORG in accordance with LAW , the ORG has decided that there has been a violation of the LAW or its Protocols and\/or has awarded just satisfaction to the injured party under LAW , the ORG shall invite ORG concerned to inform it of the measures which ORG has taken or intends to take in consequence of the judgment , having regard to its obligation to abide by it under LAW .","NORP When supervising the execution of a judgment by ORG concerned , pursuant to LAW , ORG shall examine :","( a ) NORP whether any just satisfaction awarded by the ORG has been paid , including as the case may be , default interest ; and","( b ) if required , and taking into account the discretion of ORG concerned to choose the means necessary to comply with the judgment , whether :","( i ) individual measures have been taken to ensure that the violation has ceased and that the injured party is put , as far as possible , in the same situation as that party enjoyed prior to the violation of the Convention ;","( ii ) general measures have been adopted , preventing new violations similar to that or those found or putting an end to continuing violations .","Rule CARDINAL : Control intervals","Until the High Contracting Party concerned has provided information on the payment of the just satisfaction awarded by the ORG or concerning possible individual measures , the case shall be placed on the agenda of each human rights meeting of ORG , unless the ORG decides otherwise .","NORP If ORG concerned informs ORG that it is not yet in a position to inform the ORG that the general measures necessary to ensure compliance with the judgment have been taken , the case shall be placed again on the agenda of a meeting of ORG taking place DATE , unless the ORG decides otherwise ; the same rule shall apply when this period expires and for each subsequent period .","Rule CARDINAL : Access to information","The provisions of this Rule are without prejudice to the confidential nature of ORG deliberations in accordance with LAW .","NORP The following information shall be accessible to the public unless the ORG decides otherwise in order to protect legitimate public or private interests :","( a ) information and documents relating thereto provided by a High Contracting Party to ORG pursuant to LAW ;","( b ) information and documents relating thereto provided to ORG , in accordance with the present Rules , by the injured party , by non - governmental organisations or by national institutions for the promotion and protection of human rights .","...","Rule CARDINAL : Communications to ORG","ORG shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures .","ORG shall be entitled to consider any communication from non - governmental organisations , as well as national institutions for the promotion and protection of human rights , with regard to the execution of judgments under LAW .","The ORG shall bring , in an appropriate way , any communication received in reference to paragraph CARDINAL of this Rule , to the attention of ORG . It shall do so in respect of any communication received in reference to paragraph CARDINAL of this Rule , together with any observations of the delegation(s ) concerned provided that the latter are transmitted to the ORG within DATE of having been notified of such communication .","...","Rule no . CARDINAL : Interim resolutions","In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement , ORG may adopt interim resolutions , notably in order to provide information on the state of progress of the execution or , where appropriate , to express concern and\/or to make suggestions with respect to the execution .","Rule no . CARDINAL : Final resolution","After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the judgment or that the terms of the friendly settlement have been executed , ORG shall adopt a resolution concluding that its functions under LAW or LAW have been exercised . \u201d","Article CARDINAL of ORG of ORG on ORG ( adopted by ORG of ORG at its CARDINALrd session ( DATE ) , and reproduced in ORG of ORG , CARDINALth Session , Supplement No . CARDINAL ( A\/CARDINAL\/CARDINAL ) ) is worded as follows :","\u201c A ORG responsible for an internationally wrongful act is under an obligation to make restitution , that is , to re - establish the situation which existed before the wrongful act was committed , provided and to the extent that restitution :","( a ) is not materially impossible ;","( b ) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation . \u201d","Article CARDINAL of , and the third paragraph of the Preamble to , LAW of CARDINAL DATE on ORG , which entered into force in respect of GPE on DATE , sets forth the principle of pacta sunt servanda :","\u201c Every treaty in force is binding upon the parties to it and must be performed by them in good faith . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83049","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2007,"docname":"OZALP v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["\u201c An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .","This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .","The person concerned may freely withdraw consent at any time . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23104","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2003,"docname":"IBRULJ v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicants , ORG and PERSON , are NORP citizens who were born in DATE and DATE , respectively , and live in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The first applicant is the mother of the second applicant . On DATE their husband and father , GPE died in a hospital in GPE .","On DATE the applicants instituted civil proceedings in ORG ( PERSON ) against the hospital , alleging that their husband and father had died due to the hospital personnel \u2019s negligence and sought non - pecuniary damages .","Before the ORG entered into force in respect of GPE ( i.e. before DATE ) the case was several times decided at different levels . After ORG ( PERSON ) quashed the first and second instance judgments on DATE , the case was remitted to ORG as the court of first instance , which before to CARDINAL DATE held QUANTITY hearings .","On DATE the court invited the applicants to pay an advance for the costs of an additional medical expertise .","On DATE ORG in GPE ( PERSON fakultet u GPE ) submitted its expertise to the court .","On DATE and CARDINAL DATE the parties submitted their comments on the medical expertise .","On DATE the defendant filed additional submissions .","At the hearing on DATE the ORG counsel asked the court to adopt a partial judgment .","At the hearing on DATE the court ordered that yet another additional medical expertise be carried out .","At the next hearing on DATE the court heard CARDINAL medical experts and adopted partial judgment awarding the applicants\u2019 claim in part and rejecting it in part .","On DATE the defendant appealed against the judgment .","It appears that the proceedings are presently pending before the appellate court .","The relevant parts of LAW of LAW on LAW ( entered into force on DATE , published in ORG no . CARDINAL of CARDINAL May CARDINAL - hereinafter \u201c LAW on the LAW \u201d - Ustavni zakon o Ustavnom sudu PERSON ) read as follows :","( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant \u2019s rights and obligations or a criminal charge against him ...","( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...","( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60003","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2001,"docname":"CASE OF GORZELIK AND OTHERS v. POLAND","importance":2,"conclusion":"No violation of Art. 11","judges":"Georg Ress","text":["On an unknown date the applicants ( who all describe themselves as \u201c NORP \u201d ) , together with CARDINAL other persons , decided to form an association ( stowarzyszenie ) entitled \u201c ORG \u201d ( ORG ) . The founders subsequently adopted a memorandum of association . The applicants were elected to the provisional management committee ( PERSON ) and were authorised to proceed with the registration of the association .","On DATE the applicants , acting on behalf of the provisional management committee of the \u201c ORG \u201d , lodged an application for the registration of their association with ORG ( S\u0105d Wojew\u00f3dzki ) . They relied on , inter alia , section CARDINAL(CARDINAL ) of GPE Associations ( hereinafter referred to as the \u201c Law on Associations \u201d ) . They submitted the memorandum of association along with the other documents required by ORG . The relevant parts of the memorandum of association read :","\u201c CARDINAL . The present association shall be called ORG \u201d ( hereinafter referred to as the \u201c Union \u201d ) .","NORP The Union shall conduct its activity within the territory of GPE ; it may establish local branches .","...","CARDINAL ( CARDINAL ) . The Union may join other domestic or international organisations if the aims pursued by [ the latter ] correspond to the aims pursued by the ORG .","...","The aims of the ORG are :","( CARDINAL ) to awaken and strengthen the national consciousness of NORP ;","( CARDINAL ) to restore NORP culture ;","( CARDINAL ) to promote knowledge of GPE ;","( CARDINAL ) to protect the ethnic rights of persons of NORP nationality ; [ and ]","( CARDINAL ) to provide social care for members of the ORG .","The Union shall accomplish its aims by the following means :","( CARDINAL ) NORP organising lectures , seminars , training courses and meetings , establishing libraries and clubs , and carrying out scientific research ;","( CARDINAL ) NORP organising cultural and educational activities for members of the Union and other persons ;","( CARDINAL ) carrying out promotional and publishing activities ;","( CARDINAL ) promoting the emblems and colours of GPE and GPE ;","( CARDINAL ) organising demonstrations or [ other ] protest actions ;","( CARDINAL ) organising sporting events ... and other forms of leisure activities ;","( CARDINAL ) setting up schools and other educational establishments ;","( CARDINAL) NORP cooperating with other organisations ;","( CARDINAL ) conducting business activities for the purpose of financing the aims of the Union \u2013 this may include establishing commercial entities and co - operating with other [ commercial ] entities ;","( CARDINAL ) establishing other entities or [ legal ] persons with a view to achieving the aims of the ORG ; and","( CARDINAL ) any other activities .","There shall be CARDINAL categories of members of the Union , namely ordinary members and supporting members .","Any person of NORP nationality may become an ordinary member of the Union .","... \u201d","Paragraph CARDINAL read , in so far as relevant :","\u201c A person shall cease to be a member of the ORG if :","\u2026","NORP ( a ) on a reasoned motion by the board of auditors , the management board decides to deprive him of his membership ;","( b ) the relevant motion of the board of auditors may be based on such reasons as the fact that the member in question has not fulfilled the requirements set out in the memorandum of association for becoming a member or has failed to perform the duties of members as specified in paragraph CARDINAL .","... \u201c","Paragraph CARDINAL provided :","\u201c The ORG is an organisation of the NORP national minority . \u201d","On DATE ORG , pursuant to LAW , served a copy of the applicants\u2019 application , together with copies of the relevant enclosures , on the GPE Governor ( Wojewoda ) .","On DATE the GPE Governor , acting through ORG ( PERSON ) , submitted his comments on the application to the court . These comments contain lengthy arguments against allowing the association to be registered , the main thrust of which is as follows :","\u201c ( i ) It can not be said that there is a \u2018 Silesian\u2019 ( ORG ) , in the sense of a representative of a distinct \u2018 Silesian nationality\u2019 . \u2018 Silesian\u2019 is a word denoting a representative of a local ethnic group , not a nation . This is confirmed by paragraph CARDINAL ( CARDINAL ) of the memorandum of association , which aims merely to \u2018 awake and strengthen the national consciousness of Silesians\u2019 . \u2026","( ii ) Social research relied on by the applicants to demonstrate the existence of a \u2018 Silesian nationality\u2019 does not accord with numerous other scientific publications . NORP sociology distinguishes between CARDINAL concepts of \u2018 homeland\u2019 , i.e. a \u2018 local homeland\u2019 and a \u2018 ideological homeland\u2019 . In NORP , this distinction is expressed by the terms PERSON ( local homeland ) and PERSON ( ideological homeland ) . The research relied on by the applicants merely refers to the self - identification of the inhabitants of GPE , indicating that their local self - identification takes precedence over their national self - identification . \u2026","( iii ) Paragraph CARDINAL of the memorandum of association states that any person of Silesian nationality may become an ordinary member of the association , but does not clearly specify the criteria for establishing whether or not a given person fulfils this requirement . This absence of unambiguous criteria is contrary to section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the Law on Associations . Moreover , it renders paragraph CARDINAL ( CARDINAL ) ( b ) of the memorandum unlawful , for that provision allows the board of management to deprive a person of his membership in the event of failure to satisfy the conditions set out in the memorandum of association . \u2026","( iv ) Paragraph CARDINAL of the memorandum of association , which calls the ORG an \u201c organisation of the NORP national minority \u201d , is misleading and does not correspond to the facts . There is no basis for regarding the NORP as a national minority . Recognising them as such would have been in breach of ORG CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the [ old ] LAW , which guarantee NORP citizens equal rights . In particular , under the relevant provisions of the PERSON of CARDINAL DATE on ORG ( hereinafter referred to as the \u201c Law on Parliamentary Elections \u201d ) ( ORG wyborcza do PERSON ) , registration of the Union would give it a privileged position in respect of the distribution of seats in ORG . The ORG would obtain privileges and rights guaranteed to national minorities in respect of education in their native language and access to the media . Registration of the association would have been to the detriment of other ethnic groups in GPE , such as PERSON ( PERSON ) , NORP ( GPE ) and NORP ( NORP ) ; this would have amounted to a return to the tribalism ( podzia\u0142y plemienne ) which had existed prior to the formation of the NORP State . \u2026","( v ) We therefore propose that the memorandum of association should be amended so as to reflect the above observations . In particular , the misleading name of the association should be changed , the criteria for membership should be set out in an unambiguous manner and paragraph CARDINAL should be deleted . In our opinion , these are the conditions for registration of the association . \u201d","On DATE the applicants filed a pleading in reply to those arguments . They asserted that the fact that the majority of NORP failed to recognise the existence of a NORP nation did not mean that there was no such nation . They cited various scientific publications and went on to explain that the fact that the NORP formed a distinct group had already been acknowledged at DATE ; moreover , the NORP had always sought to preserve their identity and had always formed a distinct group , regardless of whether ORG had belonged to GPE or to GPE . Consequently , any comparison between them and the PERSON or ORG was totally unjustified because the latter groups neither regarded themselves as a national minority , nor had they ever been perceived as such in the past . Finally , the applicants cited certain letters of ORG , which had been published by the press and which explained that ORG PERSON had explicitly stated that a \u201c declaration that a person belongs to a minority shall not be questioned or verified by the public authorities \u201d .","On DATE the GPE Governor filed a pleading with the court . He maintained his previous position . On DATE he produced CARDINAL letters from ORG ( dated DATE and DATE respectively , and addressed to ORG GPE Governor ) . The relevant parts of the letter of CARDINAL DATE read :","\u201c We share your doubts as to whether certain inhabitants of GPE should be deemed to be a national minority . We therefore propose that you submit your observations to the court , indicating those doubts , and that you ask the court to grant you leave to join the proceedings as a party .","We propose that you rely on the fact that LAW has not been ratified by GPE , so that its provisions [ do not apply in the domestic legal system ] . ...","In our view , neither historical nor ethnographical circumstances justify the opinion that the inhabitants of LOC can be recognised as a national minority . \u201d","The relevant parts of the letter of DATE read as follows :","\u201c ... The arguments advanced by the provisional management committee of the association [ in their pleading of DATE ] do not contain any new elements ; [ in particular ] ... LAW does not constitute the law applicable in GPE .","Likewise , the letters of ORG [ on the interpretation of ORG PERSON ] do not change the situation .","The sense of belonging to a nation falls within the realm of personal liberties ; it does not in itself entail any legal consequences . [ By contrast , ] the formation of an organisation of a national minority is a legal fact which entails legal consequences such as , for instance , those referred to in the Law on Parliamentary Elections .","In the circumstances , the registration of the association called ORG \u201d could be allowed provided that the existence of such a nation had been established . \u201d","On DATE the applicants submitted a further pleading to the court . They criticised the arguments of ORG , pointing out that the latter had failed to indicate any legal basis for rejecting their application . In particular , the authorities had not shown that any provision of the memorandum of association was contrary to the law whereas , under section CARDINAL ( CARDINAL ) of ORG , \u201c the exercise of the right to association may be subject only to such limitations as are prescribed by statute and are necessary for ensuring the interests of national security or public order and for the protection of health or morals , or for the protection of the rights and freedoms of others \u201d . Lastly , the applicants stated that they would not to amend the memorandum of association in the manner proposed by the authorities , in particular in respect of the name of the association and the content of paragraph CARDINAL . They agreed , however , to amend paragraph CARDINAL of the memorandum and phrased it as follows :","\u201c Everyone who is a NORP citizen and who has submitted a written declaration stating that he is of NORP nationality may become an ordinary member [ of the ORG ] . \u201d","On DATE ORG held an \u201c explanatory session \u201d ( posiedzenie wyja\u015bniaj\u0105ce ) aimed at obtaining comments and clarifications from the parties and settling the matters in dispute .","On DATE the applicants lodged a pleading with the court , maintaining that in the course of the above - mentioned session the authorities had \u201c de facto acknowledged that a Silesian nation exists \u201d , in particular by accepting the name of the association and certain provisions of the memorandum ( i.e. paragraph CARDINAL ( CARDINAL ) and ( CARDINAL ) and paragraph CARDINAL ) \u201d . They stressed however that the authorities\u2019 insistence on deleting paragraph CARDINAL was \u201c unjustified and illogical \u201d and , consequently , refused to alter or delete that provision .","Later , on DATE , the GPE Governor submitted his final pleading to the court , opposing the registration of the association .","On DATE a single judge , sitting in camera as ORG , granted the applicants\u2019 application and registered their association under the name of ORG \u201d . The reasons for that decision read , in so far as relevant :","\u201c ... There was a dispute between [ the parties ] over the concepts \u2018 nation\u2019 and \u2018 national minority\u2019 . Finally [ the authorities concerned ] pleaded that the application for registration of the association should be dismissed .","This court has found that the application is well - founded [ and as such should be granted ] .","In the LAW to the Law on Associations , the legislature guarantees [ everyone ] a cardinal right , the right to freedom of association , which enables citizens , regardless of their convictions , to participate actively in public life and to express different opinions , and to achieve individual interests .","Freedom of association is CARDINAL of the natural rights of a human being . [ For this reason , ] section CARDINAL ) of the Law on Associations does not establish the right to freedom of association but merely sets out the manner and limits of its exercise , thus reflecting GPE \u2019s international obligations .","Under LAW ) of ORG , the right to form an association may be subject only to such limitations as are prescribed by statute either in the interests of national security or public safety , or in the interests of public order , or for the protection of health and morals , or for the protection of the rights and freedoms of others . No other restrictions may be placed on the exercise of the right to associate with others .","As recently as DATE , in their pleading , the authorities advanced the argument that the registration of the present association would infringe the rights and freedoms of others because it would result in an unequal treatment of other local communities and would diminish their rights .","This argument is unconvincing since it does not emerge from the content of the memorandum of association that the future activities of the association are aimed at [ diminishing ] the rights and freedoms of others .","Pursuant to paragraph CARDINAL of the memorandum of association , the aims of the association are [ , for example , ] to awaken and strengthen the national consciousness of NORP , to restore NORP culture , to promote knowledge of GPE and to provide social care for members of the association . None whatsoever of these aims is directed against the rights and freedoms of others . The means to be used for accomplishing these aims are not directed against the rights and freedoms of others either . Those means include organising lectures and seminars , carrying out scientific research , establishing libraries , organising cultural and educational activities for members and other persons , carrying out promotional and publishing activities , promoting the emblems and colours of GPE and GPE , organising demonstrations and protest actions , organising sporting events , setting up schools and other educational establishments , conducting business activities and co - operating with other organisations .","In sum , the argument that the association would infringe the rights and freedoms of others must definitely be rejected . Moreover , it should be noted that this argument refers to [ a mere possibility ] because only practical action taken by the association could possibly demonstrate whether , and if so to what extent , the [ future ] activities of the association would necessitate the use of measures aimed at protecting the rights of others .","As regards the terms \u2018 Silesian nationality\u2019 or \u2018 NORP national minority\u2019 , the problems involved in the determination of their proper meaning can not be examined by this court in detail .","This court must , pursuant section CARDINAL(CARDINAL ) of the Law on Associations , rule on the present application within a period not exceeding DATE from the date on which it was lodged . It is therefore not possible [ in the course of the present proceedings ] to determine such complicated issues ( which involve problems falling within the sphere of international relations ) .","It is , however , possible to assume , for the purposes of making a ruling in these proceedings , that the nationality of an individual is a matter of choice for him ; moreover , it is a matter of common knowledge that the original inhabitants of LOC constitute a minority in GPE DATE at least for anyone who has ever spent some time in this region and has been willing to perceive this fact . After all , the authorities , although they rend their garments [ sic ] , complaining that the applicants dared to establish an association , do not contest the fact that [ the NORP ] are an ethnic minority .","In view of the foregoing this court , finding that the provisional management committee complied with the requirements laid down in sections CARDINAL ) , CARDINAL and DATE , read in conjunction with section CARDINAL ( CARDINAL ) of ORG and LAW , holds as in the operative part of the decision \u201d .","On DATE the GPE Governor lodged an appeal with ORG ( S\u0105d Apelacyjny ) , asking that the first - instance decision be quashed , that the case be remitted to the court of first instance , and that expert evidence be obtained in order to determine the meaning of the terms \u201c nation \u201d and \u201c national minority \u201d . In his appeal , he alleged that the court of first instance had violated sections CARDINAL ) and CARDINAL of the Law on Associations and unspecified provisions of LAW . The reasons for the appeal read , in so far as relevant :","\u201c [ The court of first instance ] formally recognised and legally sanctioned the existence of a distinct NORP nation constituting a \u2018 NORP national minority\u2019 .","In our opinion , such an important and unprecedented ruling , which is of international significance , could not and should not be given without defining the concepts of \u2018 nation\u2019 and \u2018 national minority\u2019 . ORG , leaving this issue aside \u2013 merely because of certain statutory time - limits \u2013simplified the proceedings in an unacceptable manner . This led , in itself , to a failure on the part of the court to establish all the circumstances relevant to the outcome of the case and , furthermore , provided a sufficient basis for this appeal .","The appellant admits that NORP law does not define the terms \u2018 nation\u2019 and \u2018 national minority\u2019 . This , however , does not justify the conclusion of ORG that \u2018 the nationality of an individual is a matter of choice for him\u2019 .","The appellant does not contest the right of a person to decide freely to belong to a national minority ; however , a precondition for making such a choice is the existence of a \u2018 nation\u2019 with which that person identifies himself .","The decision appealed against proclaims the opinion that the subjective feelings of the person concerned suffice for the purposes of creating a \u2018 nation\u2019 or a \u2018 nationality . Having regard to the potential social repercussions of such an approach , it is not possible to agree with it .","In these circumstances , prior to making any decision on the registration of the \u2018 Union of People of Silesian Nationality\u2019 , it is necessary to determine whether a \u2018 Silesian nation\u2019 exists \u2013 a distinct , non - NORP nation \u2013 and whether it is admissible in law to create a \u2018 NORP national minority\u2019 .","In the appellant \u2019s opinion , there are no objective arguments in favour of the finding that a distinct NORP nation exists . In case of doubt , ... this question should be resolved by obtaining evidence from experts .","In the contested decision , the lower court in principle focused on determining whether the aims of the association and the means of accomplishing those aims were lawful . \u2026 The appellant does not contest the majority of these aims ; it must be said that such activities as restoring NORP culture , promoting knowledge of GPE or providing social care for members of the association are worthy of respect and support . However , these aims can fully be accomplished without the contested provision of the memorandum of association , i.e. paragraph CARDINAL ... . In addition , the applicants were not prevented from incorporating the above - mentioned aims into the memorandum of an existing association called ORG ( PERSON ) , the more so as the applicants belong to influential circles of the latter organisation .","The fact that the applicants have failed to do so but [ instead ] are creating a new association , and are describing themselves as a \u2018 NORP national minority\u2019 , clearly demonstrates what their real objective is . In fact , their objective is to circumvent the provisions of the PERSON of CARDINAL DATE on ORG , under which parties or other organisations standing in elections must reach a threshold of PERCENT or PERCENT of the vote in order to obtain seats in the ORG . ...","Legal acts \u2013 including the act of adopting a memorandum of association \u2013 are null and void under LAW if they aim at evading or circumventing the law . Legal theory formulates the opinion that defects in legal acts , as defined in LAW , may constitute a basis for refusing to register an association .","Sanctioning the rights of the \u2018 NORP national minority\u2019 amounts to discrimination against other regional and ethnic groups or societies . This will be the case at least as regards electoral law and will be contrary to LAW . \u2026 \u201d","ORG heard the appeal on DATE . ORG ( Prokurator Apelacyjny ) appeared at the hearing and asked the court to grant him leave to join the proceedings as a party intervening on behalf of the GPE Governor . The leave was granted . The court next heard addresses by the appellant , the prosecutor ( who requested the court to set aside the first - instance decision and dismiss the applicants\u2019 application ) and the representative of the applicants . On DATE the court set aside the first - instance decision and dismissed the applicants\u2019 application for their association to be registered . The reasons for that decision read , in so far as relevant :","\u201c ... The lower court , by registering the association entitled \u2018 Union of People of Silesian Nationality\u2019 , approved paragraph CARDINAL of the memorandum of association , which states that the ORG is an organisation of the NORP national minority . We therefore agree with the appellant that the ORG , on the basis of the above - mentioned paragraph , would have the right to benefit from the statutory privileges laid down in section CARDINAL of the Law on Parliamentary Elections . ...","Furthermore , recognising the NORP as a national minority may also result in further claims on their part [ for privileges ] granted to national minorities by other statutes . ...","Contrary to the opinion expressed by the lower court , it is possible to determine whether or not the NORP constitute a national minority in GPE ; it is not necessary to obtain expert evidence in that connection .","Under LAW , facts that are a matter of common knowledge , i.e. those which every sensible and experienced citizen should know , do not need to be proved . Common knowledge includes historical , economical , political and social phenomena and events .","It is therefore clear that at present no legal definition of \u2018 nation\u2019 and \u2018 national minority\u2019 is commonly accepted in international relations , . ...","On the other hand , an \u2018 ethnic PERSON is understood as a group which has a distinct language , a specific culture and a sense of social ties , is aware of the fact that it differs from other groups , and has its own name .","NORP ethnographic science of DATE describes \u2018 Silesians\u2019 as an autochthonous population of NORP origin residing in GPE \u2013 a geographical and historical region . At present , as a result of political and social changes , the term \u2018 Silesians\u2019 refers equally to immigrant inhabitants who have been residing in this territory for several generations and who have been identifying themselves with their new region of residence . It also refers to the NORP - speaking population , linked with GPE by [ such factors as ] birth , residence and tradition ( see the PERSON published by ORG in DATE ) . ...","The applicants derive the rights they claim from the principles set out in the [ LAW ] , stating that every person belonging to a national minority has the right freely to choose to belong or not to belong to such a minority . ... In invoking NORP standards , they fail , however , to remember that a national minority with which a given person identifies himself must exist . There must be a society , established on the basis of objective criteria , with which this person wishes to identify . No one can determine his national identity in isolation from a fundamental element , which is the existence of a specific nation .","It emerges from the above - mentioned definition of a \u2018 nation\u2019 that a nation is formed in a historical process which may last for DATE and that the crucial element which forms a nation is its self - identification , that is to say its national awareness established on the basis of the existing culture by a society residing on a specific territory .","Certainly , the NORP belong to a regional group with a very deep sense of identity , including their cultural identity ; no one can deny that they are distinct . This does not , however , suffice for them to be considered as a distinct nation . They have never commonly been perceived as a distinct nation and they have never tried to determine their identity in terms of [ the criteria for a \u2018 nation\u2019 ] . On the contrary , the history of GPE unequivocally demonstrates that autochthonous inhabitants [ of this region ] have preserved their distinct culture and language ( the latter having NORP roots from an ethnic point of view , ) , even though their territories were not within the borders of the NORP State and even though they were under strong NORP influence . They are therefore NORP \u2013 in the sense of [ inhabitants of the ] region , not in the sense of [ their ] nationality . Thus , GPE , in its ethnic roots [ sic ] , remained NORP ; that was , without a doubt , demonstrated by CARDINAL uprisings . The role played by the NORP in building and preserving the NORP character of GPE , even though they remained isolated from their homeland , is unquestionable .","However , a given nation exists where a group of individuals , considering themselves a \u2018 nation\u2019 , is in addition accepted and perceived as such by others . In the common opinion of NORP citizens , both the NORP and other regional groups or communities [ e.g. NORP or NORP ] are perceived merely in terms of local communities . In the international sphere GPE and , similarly , GPE and GPE , are perceived as single - nation GPE , regardless of the fact that there exist distinct ethnic groups ( e.g. the inhabitants of GPE or PERSON in GPE , or the inhabitants of GPE in GPE ) .","On the whole , sociologists agree that the NORP constitute an ethnic group and that the autochthonous inhabitants [ of LOC ] do have some features of a nation but that those features are not fully developed . That ... means that the awakening of their national identity is still at a very early stage . A nation exists only when there are no doubts as to its right to exist . ... In GPE national minorities do constitute only a small part of the society , that is to say PERCENT . They comprise DATE and this has never been denied NORP , NORP , NORP , NORP , NORP , NORP , NORP , GPE , NORP and NORP .","In the NORP tradition , national minorities are perceived as groups linked to a majority outside GPE ; in other words , a minority is an ethnic group which has support amongst a majority [ residing ] abroad . Moreover , traditionally , our society has not considered that groups which preserve a distinct culture but which do not belong to any ORG can be deemed to be national minorities . Accordingly , for a long time the GPE people were regarded as an ethnic , not a national group . ...","The applicants\u2019 opinion that the mere choice of the individual concerned is decisive for his nationality is reflected in paragraph CARDINAL of the memorandum of association . Acceptance of this opinion would consequently lead to a situation in which the aims pursued by the association could be accomplished by groups of members who did not have any connection or links with GPE and who had become members of the Union solely to gain an advantage for themselves . Undoubtedly , such groups of members can not [ be allowed ] to accomplish the aims of an association of a national minority . ...","The applicants have relied on the results of sociological research carried out in DATE in GPE . Indeed , the research demonstrates that PERCENT of persons requested to declare their ethnic and regional identity replied that they were NORP . However , it transpires from [ the material collected in the course of another piece of sociological research of DATE which was submitted by the applicants during the appellate hearing ] that DATE the number of persons considering themselves to be ORG had decreased to PERCENT and that , moreover , the majority of inhabitants of GPE considered themselves to be NORP ( i.e. PERCENT , including PERCENT who stated that they were \u2018 NORP Silesians\u2019 ; PERCENT of inhabitants considered themselves to be NORP , including PERCENT who stated that they were \u2018 NORP Silesians\u2019 ) .","In the light of the above research it can not be said that such a poorly established self - identity of a small ( and decreasing ) group of NORP , as demonstrated by their refusal to declare that they belong to the [ NORP ] nation , provides a basis for recognising that all NORP ( who have lived in LOC for generations and state that they belong to the NORP nation ) constitute a separate nation . This would be contrary to the will of the majority , a will well known to the applicants .","We therefore find that the appellant is right in submitting that granting the applicants\u2019 application for their association to be registered is unjustified because the memorandum of association is contrary to the law , i.e. LAW . Thus , the application is aimed at registering an organisation of a minority which can not be regarded as a national minority and at circumventing the provisions of LAW and other statutes conferring particular privileges on national minorities . Granting such a request could lead to granting unwarranted rights to the association in question . This would , moreover , place their organisation at an advantage in relation to other regional or ethnic organisations .","In these circumstances , under LAW CARDINAL of LAW , read in conjunction with Articles CARDINAL \u00a7 CARDINAL and CARDINAL of the Code of Civil Procedure and section CARDINAL of the Law on Associations , the appeal must be allowed ... . \u201d","On DATE the applicants lodged a cassation appeal ( kasacja ) with ORG ( S\u0105d Najwy\u017cszy ) . They alleged that ORG had wrongly interpreted the relevant provisions of ORG and that the impugned decision had contravened LAW , LAW . Their arguments may be summarised as follows :","\u201c The principal issue to be determined by ORG was whether the memorandum of the applicants\u2019 association complied with the statutory requirements . since a refusal to register an association could be justified only if an activity specified in the memorandum of association was banned by the law . That was clearly not the case and the court \u2019s fear that the registration of the applicants\u2019 association would in future lead to discrimination against other national or ethnic minorities was based on mere speculation . In any event , the Law on Associations [ in sections CARDINAL(CARDINAL ) , CARDINAL et seq . ] provided for various means whereby the activity of an association could be supervised by the competent ORG authorities or , in the event that its activity was unlawful , the association could be dissolved .","However , ORG , instead of assessing formal requirements of the registration , firstly decided that the core issue in the proceedings was to establish whether a NORP nation existed . It consequently went on to lay down its own arbitrary and controversial definition of \u2018 nation\u2019 and \u2018 national minority\u2019 and finally concluded that there was no \u2018 NORP nation\u2019 . It did so without any effort to obtain expert evidence in respect of such an important matter . \u201d","On DATE the GPE Governor filed a pleading in reply to the ORG cassation appeal . The relevant arguments may be summarised as follows :","\u201c The refusal to register the applicants\u2019 association was fully justified . In the course of the proceedings at first instance , the Governor eventually proposed that the applicants amend paragraph CARDINAL of the memorandum of association and alter the name of their association by deleting the word \u2018 ORG . Those arguments were based on section CARDINAL(CARDINAL)(CARDINAL ) of ORG , which provides that a memorandum of association should enable the association in question to be differentiated from other associations . This means that the name of an association should not be misleading . Since the requirement set out in the above - mentioned section was not complied with , the refusal to register the applicants\u2019 association was justified under section CARDINAL ) .","It must be stressed that even in the explanatory report to LAW it is clearly stated that the individual \u2019s subjective choice to belong to a national minority is inseparably linked to objective criteria relevant to the person \u2019s identity . That means that a given nation must exist prior to the individual making a decision to belong to this nation . That being so , the applicants\u2019 application for their association to be registered must be seen as a thoughtless and incomprehensible attempt to exploit the distinct characteristics [ of the NORP ] with a view to achieving political aims . \u201d","On DATE ORG filed a pleading in reply to the applicants\u2019 cassation appeal . He submitted , inter alia , that it was clear that the content of the memorandum of association was contrary to the law since it explicitly stated that the Union was an association of a national minority , and thus ignored the fact that the NORP could not be regarded as a minority of that kind . The NORP , being merely an ethnic group , could not exercise the rights conferred on national minorities , in particular those referred to in the Law on Parliamentary Elections .","On DATE a panel of CARDINAL judges , sitting as ORG of ORG , dismissed the ORG cassation appeal . The relevant parts of the reasons for this decision read as follows :","\u201c \u2026 [ A ] necessary prerequisite for the registration of an association is the conformity of its memorandum of association with the entire domestic legal order , including conformity with [ the provisions of ] international treaties ratified by GPE .","In the present case ORG had no doubts as to the lawfulness of the aims pursued by [ the applicants\u2019 ] association but refused to register the association for the sole reason that [ the applicants ] , in the memorandum of association , used such terms as \u2018 NORP nation\u2019 and \u2018 NORP national minority\u2019 .","We agree with the opinion [ of ORG ] . \u2018 ORG minority\u2019 is a legal term ( LAW DATE ) although it is not defined either in NORP law , or in the conventions relied on in the cassation appeal . However , the explanatory report to LAW states plainly that the individual \u2019s subjective choice of a nation is inseparably linked to objective criteria relevant to his national identity . That means that a subjective declaration of belonging to a specific national group implies prior social acceptance of the existence of the national group in question . \u2026","An individual has the right to choose his nation but this , as ORG rightly pointed out , does not in itself lead to the establishment of a new , distinct nation or national minority .","There was , and still is , a common perception that an ethnic group of NORP does exist ; however , this group has never been regarded as a national group and it has not claimed to be regarded as such . \u2026","Registration of the association , which in paragraph CARDINAL of its memorandum of association states that it is an organisation of a [ specific ] national minority , would be in breach of the law because it would result in a non - existent \u2018 national minority\u2019 taking advantage of privileges conferred on [ genuine ] national minorities . This concerns , in particular , the privileges granted by the Law on Parliamentary Elections ... such as an exemption from the requirement that a party or other organisation standing in elections should receive PERCENT of the vote , which is a prerequisite for obtaining seats in ORG ... [ or ] ... privileges in respect of the registration of electoral lists ; thus , it suffices for an organisation of a national minority to have registered its electoral lists in CARDINAL electoral constituencies [ whereas the general requirement is to register an electoral list in CARDINAL of the electoral constituencies in the whole of GPE ] .","Pursuant to the relevant ruling of ORG ( PERSON ) on the interpretation of LAW , ... the privileges [ referred to above ] are conferred on electoral committees of registered national minorities and , in the event of any doubt [ as to whether or not an electoral committee represents a national minority ] , ORG may request evidence .","The simplest means of proving the existence of a specific national minority is to present a memorandum of association confirming that fact . It is true that under LAW resolutions of ORG on the interpretation of statutes no longer have universally binding force ; however , in view of the persuasiveness of the reasons given by ORG and the requirements of practice , [ we consider that ] a memorandum of association still remains basic evidence demonstrating the existence of a national minority .","[ Furthermore , ] conferring on the NORP , an ethnic group , the rights of a national minority would be contrary to LAW , stating that all persons are equal before the law , [ because ] other ethnic minorities would not enjoy the same rights .","The memorandum of association is contrary to section CARDINAL(CARDINAL)(CARDINAL ) of the Law on Associations , which stipulates that a memorandum of association must set out rules concerning acquisition and loss of membership , and the rights and duties of members . Paragraph CARDINAL of the memorandum provides that everyone who is a NORP citizen and has submitted a written declaration stating that he is of NORP nationality , may become a member of the ORG , whereas paragraph CARDINAL states that a person ceases to be a member of the Union if , inter alia , he has not fulfilled the membership requirements set out in the memorandum of association . Since no Silesian nation exists , no one would , lawfully , be able to become a member of the Union because his declaration of Silesian nationality would be untrue . \u2026","Furthermore , it must be pointed out that the refusal to register the association does not contravene GPE \u2019s international obligations . Both LAW ... and LAW allow [ the ORG ] to place restrictions on the freedom of association , [ in particular such as ] are prescribed by law and are necessary in a NORP society in the interests of national security or public safety or for the protection of health and morals or for the protection of the rights of others .","It is contrary to the public order to create a non - existent nation that would be able to benefit from the privileges conferred solely on national minorities . Such a situation would also lead to the infringement of the rights of others , not only national minorities but also all other citizens of GPE . Granting privileges to a [ specific ] group of citizens means that the situation of the other members of society becomes correspondingly less favourable .","This is particularly so in the sphere of election law : if certain persons may become members of ORG [ because of their privileged position ] , it means that other candidates must obtain a higher number of votes than what would be required in the absence of privileges [ in that respect ] .","It also has to be noted that the essential aims of the association can be accomplished without the contested provisions of the memorandum and without the [ specific ] name of the association . Under the provisions of LAW national and ethnic minorities have equal rights as regards their freedom to preserve and develop their own language , to maintain their customs and traditions , to develop their culture , to establish educational institutions or institutions designed to protect their religious identity and to participate in the resolution of matters relating to their cultural identity ( LAW ) . \u2026 \u201d","DATE ( which was adopted by ORG on DATE and entered into force on DATE ) states :","\u201c GPE shall ensure freedom for the creation and functioning of trade unions , socio - occupational farmers\u2019 organisations , societies , ORG movements , other voluntary associations and foundations . \u201d","LAW reads :","\u201c Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism , fascism or communism , or whose programmes or activities foster racial or national hatred , recourse to violence for the purposes of obtaining power or to influence ORG policy , or which provide for their structure or membership to be secret , shall be forbidden . \u201d","Article CARDINAL of the LAW provides :","\u201c CARDINAL . All persons shall be equal before the law . All persons shall have the right to equal treatment by public authorities .","No one shall be discriminated against in political , social or economic life for any reason whatsoever . \u201d","LAW provides :","\u201c CARDINAL . GPE shall ensure that NORP citizens belonging to national or ethnic minorities have the freedom to preserve and develop their own language , to maintain customs and traditions , and to develop their own culture .","National or ethnic minorities shall have the right to establish educational and cultural institutions and institutions designed to protect religious identity , as well as to participate in the resolution of matters relating to their cultural identity . \u201d","LAW , proclaiming the right to freedom of association , reads :","\u201c CARDINAL . NORP The freedom of association shall be guaranteed to everyone .","Associations whose purposes or activities are contrary to the LAW or statute shall be prohibited . The courts shall decide whether to register an association and\/or whether to prohibit an [ activity of ] an association .","Categories of associations requiring court registration , the procedure for such registration and the manner in which activities of associations may be monitored shall be specified by statute . \u201d","Chapter III of the LAW , entitled \u201c Sources of Law \u201d , refers to the relationship between domestic law and international treaties .","LAW provides :","\u201c The sources of universally binding law of GPE shall be the LAW , statutes , ratified international treaties and ordinances . \u201d","Article CARDINAL states :","\u201c CARDINAL . As soon as a ratified international treaty has been promulgated in ORG , it shall constitute a part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .","An international treaty ratified after prior consent has been given in the form of a statute shall have precedence over statutes where the provisions of such a treaty can not be reconciled with their provisions .","Where a treaty ratified by GPE establishing an international organisation so provides , the rules established by it shall be applied directly and have precedence in the event of a conflict of laws . \u201d","Section CARDINAL of the PERSON , in the version applicable at the material time , prescribed :","\u201c CARDINAL . NORP citizens shall exercise the right of association in accordance with the LAW ... and the legal order as specified by statute .","The [ exercise of the ] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others .","Associations shall have the right to express their opinion on public matters . \u201d","Section CARDINAL provides , in so far as relevant :","\u201c CARDINAL . An association is a voluntary , self - governing , stable union pursuing non - profit- making aims .","An association shall freely determine its objectives , its programmes of activity and organisational structures , and shall adopt internal resolutions concerning its activity .","... \u201c .","Section CARDINAL , in the version applicable at the material time , stated , in so far as relevant :","\u201c CARDINAL . An association shall register itself in ORG , unless statute provides otherwise .","[ Subsections DATE were repealed on DATE ]","The activities of associations shall be supervised by [ the Governor of the relevant GPE ] , who shall be referred to hereinafter as \u2018 supervisory ORG .","The relevant part of section CARDINAL provides :","\u201c CARDINAL . An association \u2019s memorandum shall in particular specify :","( CARDINAL ) the name of the association which shall differentiate it from other associations , organisations or institutions ;","...","( CARDINAL ) the conditions for the admission of members , the procedure and grounds for the loss of membership , and the rights and obligations of members . \u201d","Section CARDINAL reads as follows :","\u201c The management committee of an association shall lodge with the competent court an application for the registration of their association together with a memorandum of association , a list of the founders containing their first names , surnames , dates and places of birth , their places of residence and signatures , a record of the election of the management committee and the address of their provisional headquarters . \u201d","Section CARDINAL stipulates :","\u201c CARDINAL . A court dealing with an application for the registration of an association shall rule on such an application promptly ; a ruling should be given within DATE from the date on which the application was lodged with the court .","NORP The court shall serve a copy of the application for the registration , together with the accompanying documents specified in LAW on [ the relevant ] supervisory organ . The supervisory organ shall have the right to comment on the application within DATE from the date of service and , with the court \u2019s leave , to join the proceedings as a party . \u201d","Section CARDINAL reads :","\u201c The court shall refuse to register an association if it has not fulfilled the conditions laid down in [ this ] PERSON . \u201d","Section CARDINAL provides :","\u201c The court shall allow an application for registration of an association if it is satisfied that the latter \u2019s memorandum of association is in conformity with the law and its members comply with the requirements laid down in [ this ] PERSON . \u201d","Chapter CARDINAL of the PERSON , entitled \u201c Supervision of associations \u201d , provides , in sections CARDINAL et seq . , for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association .","Under LAW the relevant supervisory organ is entitled to request the management committee of an association to submit , within a specified time - limit , copies of resolutions passed by the general meeting of the association or to ask the officers of an association to provide it with \u201c necessary explanations \u201d .","In the event that such requests are not complied with , the court , under LAW and a motion from the supervisory organ , may impose a fine on the association concerned .","Under LAW , a supervisory organ , if it finds that activities of an association are contrary to the law or infringe the provisions of the memorandum of association in respect of matters referred to in section CARDINAL ) and ( CARDINAL ) , may request that such breaches cease , or issue a reprimand , or request the competent court to take measures under section CARDINAL .","Section CARDINAL provides , in so far as relevant :","\u201c CARDINAL . The court , at the request of a supervisory organ or a prosecutor , may :","( CARDINAL ) reprimand the authorities of the association concerned ;","( CARDINAL ) annul [ any ] resolution passed by the association if such a resolution is contrary to the law or the provisions of the memorandum of association ;","( CARDINAL ) dissolve the association if its activities have demonstrated a flagrant or repeated failure to comply with the law or with the provisions of the memorandum of association and if there is no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum of association . \u201d","Section QUANTITY of the Law ( hereafter referred to as the \u201c DATE PERSON on Parliamentary Elections \u201d ) provided :","\u201c CARDINAL . In the distribution of seats [ in the ORG ] account shall be taken only of those regional electoral lists of electoral committees which have received PERCENT of the valid votes cast in the whole [ of GPE ] .","NORP The regional electoral lists of electoral committees referred to in section CARDINAL ) ( electoral coalitions ) shall be taken into account in the distribution of seats [ in ORG ] , provided that they have received PERCENT of the valid votes cast in the whole [ of GPE ] . \u201d","Section CARDINAL prescribed :","\u201c In the distribution of seats among national electoral lists account shall be taken only of those lists of electoral committees which have received PERCENT of the valid votes cast in the whole [ of GPE ] .","Section CARDINAL stipulated :","\u201c CARDINAL . Electoral committees of registered organisations of national minorities may be exempted from CARDINAL of the conditions referred to in section CARDINAL ) or in section CARDINAL , provided that , not later than the fifth day before the date of the election , they submit to ORG a declaration to that effect .","ORG shall promptly acknowledge receipt of the declaration referred to in subsection CARDINAL . This declaration shall be binding on electoral colleges . \u201d","Section CARDINAL provided , in so far as relevant :","\u201c \u2026","An electoral committee which has registered its regional electoral lists in CARDINAL of the constituencies [ in the whole of GPE ] \u2026 shall be entitled to register a national electoral list .","Electoral committee[s ] of organisations of national minorities shall be entitled to register a national electoral list , provided that [ they ] ha[ve ] registered their regional electoral lists in CARDINAL constituencies . \u201d","DATE the Civil Code states :","\u201c No one shall exercise any right of his in a manner contrary to its socio - economic purpose or to the principles of co - existence with others ( zasady wsp\u00f3\u0142\u017cycia spo\u0142ecznego ) . No act or omission [ fulfilling this description ] on the part of the holder of the right shall be deemed to be the exercise of the right and shall be protected [ by law ] . \u201d","Article CARDINAL provides , in so far as relevant :","\u201c CARDINAL . A[ny ] act which is contrary to the law or aimed at evading the law shall be null and void , unless a statutory provision provides for other legal effects , such as the replacement of the void elements of such an act by elements provided for by statute .","Any act which is contrary to the principles of co - existence with others , shall be null and void . \u201d","At the material time GPE was a signatory to LAW ETS No . CARDINAL ) ; the date of signature was CARDINAL DATE . GPE ratified that LAW . It has been in force since DATE .","LAW contains no definition of the notion of \u201c national minority \u201d . Its explanatory report mentions that it was decided to adopt a pragmatic approach , based on the recognition that at that stage it was impossible to arrive at a definition capable of mustering the general support of all ORG member GPE .","A number of the member GPE made declarations setting out definitions of \u201c national minority \u201d for the purposes of LAW . GPE , at the time of the deposit of the instrument of ratification , made the following declaration :","\u201c Taking into consideration the fact that LAW contains no definition of the national minorities notion , GPE declares that it understands this term as national minorities residing within the territory of GPE at the same time whose members are NORP citizens . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["11"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75617","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2005,"docname":"SCEA FERME DE FRESNOY v. FRANCE [Extracts]","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant company , ORG , is an agricultural partnership with unlimited liability ( soci\u00e9t\u00e9 civile d\u2019exploitation agricole ) . Its registered office is situated at FAC in the administrative district of FAC and its manager , Mr PERSON , acts on its behalf . It was represented before the ORG by Mr PERSON , of FAC . ORG were represented by their Agent , PERSON , Director of ORG at ORG .","On DATE counsel for the applicant company informed the ORG that Mr PERSON , CARDINAL of the partners in the business , had died and that his widow , together with his son , Mr PERSON , who was already the manager , were now the only shareholders . Counsel indicated that Mr PERSON and his mother had expressed their wish to continue the proceedings before the ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","Mr PERSON runs a CARDINAL-hectare farm in the administrative district of GPE ( d\u00e9partement of ORG ) . His father was joint manager until his death . The farm was acquired in DATE following the expropriation of a previous agricultural holding based in Lognes .","The central part of the farm consists of various farm buildings around an inner courtyard and includes a chapel and a chapter house dating from the twelfth and thirteenth centuries , which are the remains of the NORP commandery of GPE . Both of those edifices are tightly integrated into the surrounding buildings .","In a letter of CARDINAL DATE , the NORP prefecture offered a ORG grant for the restoration of the chapel and chapter house . The proposed grant was to cover PERCENT of the initial work . The applicant company declined the offer in view of the excessive share of the cost that it would have to bear .","By a decision of the prefect dated DATE , the remains of the commandery were added to the secondary list of historic buildings .","Following the approval of ORG on DATE and by a decision of CARDINAL DATE , the chapel and chapter house of the historic GPE commandery were added to the primary list of historic buildings under FAC of DATE . The reason for the listing was that \u201c the preservation [ of the buildings ] ha[d ] public - interest value in relation to the history of art , in view of the rarity and authenticity of the LOC architecture \u201d . This status gave rise to various sets of proceedings .","As the applicant company had envisaged building a farm shed near the chapel and chapter house , various meetings were organised with the national heritage architect and the architecture authority for the d\u00e9partement of ORG with a view to finding a new location , since the applicant company \u2019s initial plan could no longer be implemented owing to the constraints of the historic monument protection . On DATE the applicant company lodged an application for a building permit in respect of a farm machinery workshop , in spite of the national heritage architect \u2019s negative opinion , which was subsequently confirmed on CARDINAL DATE . By a decision of the prefect dated DATE , the building permit was refused on the ground that \u201c the intended construction would have an adverse effect on the chapel of the NORP commandery and would undermine the current harmony of the buildings as a whole \u201d .","The applicant company applied to the ORG for judicial review of the prefect \u2019s decision .","On DATE a further meeting was held on the site with a view to finding a possible location for the farm machinery workshop . In a letter of CARDINAL DATE , the national heritage architect informed the applicant company , among other things , that the purpose was not to prevent it from building but to help it draw up the best possible plan , taking into account all the technical , operational and site - related constraints .","In a judgment of DATE , the ORG set aside the decision of CARDINAL DATE to refuse the building permit , on the ground that the prefect had based his decision on an incorrect assessment of the facts . In a judgment of DATE , ORG dismissed an appeal by the Minister for Infrastructure , ORG on the ground that the national heritage architect had not given his opinion within the statutory period .","On DATE the applicant company applied for a permit to build a shelter .","On DATE the national heritage architect advised against the granting of a permit . By a decision of DATE , the prefect denied the applicant company a building permit in respect of a maintenance and repair workshop on the ground that","\u201c the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under LAW of DATE ( chapel and chapter house ) \u201d .","On DATE the national heritage architect received PERSON , who submitted to him a plan for the construction of a farm building situated to the west of the main farm and aligned with an existing shed ( adjoining the chapel ) . The national heritage architect gave his approval in principle , subject to a few minor adjustments , as the plan complied with the main guidelines laid down by the architecture and heritage authority of the d\u00e9partement of ORG .","On DATE the applicant company applied for a building permit . By a decision of the prefect dated DATE , the building permit was granted subject to certain conditions , such as the obligation to plant a screen of standard trees of local species . The extra cost incurred on account of the permit conditions was MONEY ( FRF ) .","On DATE the applicant company applied for a permit to demolish CARDINAL unlisted buildings that were not adapted to the needs of the farm . By a decision of the prefect dated DATE , the demolition permit was refused on the following grounds :","\u201c ... the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under LAW of DATE ( ORG ) .","... the disappearance of these traditional constructions with their specific character would detract from the immediate surroundings of the above - mentioned protected buildings and would undermine the quality of their environment ; restoration with a view to reuse has to be envisaged . \u201d","On DATE the applicant company lodged CARDINAL fresh applications for building permits . On DATE the national heritage architect advised in favour of both applications , subject to the following conditions :","\u201c In order to harmonise this development with the neighbouring traditional constructions , which form the setting of the above - mentioned protected building :","[ In respect of the first plan : ]","the cladding will be of a dark colour ...","the roofing will be red - brown in colour and mat in appearance","[ In respect of the second plan : ]","the building to be erected will be clad entirely with wooden slats [ tavillons ]","the roofing will be red - brown in colour and with no gloss effect . \u201d","By CARDINAL decisions of the prefect dated DATE , the applicant company was granted CARDINAL building permits , subject to the above - mentioned conditions . As the applicant company failed to proceed with the building work within the periods laid down in the decisions , the validity of the CARDINAL building permits has since lapsed .","On DATE the applicant company applied to the ORG d\u2019Etat for judicial review of the listing decision of CARDINAL DATE . In a judgment of CARDINAL DATE , the ORG d\u2019Etat dismissed the applicant company \u2019s application for judicial review and confirmed both the formal validity and the substantive legality of the impugned decision . The PERSON d\u2019Etat noted in particular , concerning the substantive legality of the listing decision , that","\u201c the chapel and chapter house of the GPE commandery ... constitute a rare example of PERSON architecture ... the preservation [ of which ] has public - interest value for artistic and historical reasons , such that the listing thereof as a historic monument can legally be justified ... [ and ] the second paragraph of LAW of DATE ... can not have the purpose or effect of obliging the authorities to attach any easements or obligations to the listing status other than those resulting , pursuant to the LAW of DATE , from the listing itself \u201d .","On DATE , in a letter addressed to the prefect of the d\u00e9partement of ORG , the applicant company sought ORG CARDINAL in compensation under section CARDINAL of the Act of DATE , on the ground that","\u201c the listing has clearly caused harm to the claimant company \u2019s agricultural activity , by creating in the very heart of the farm an easement capable of rendering impossible any development of the farm , or even of seriously undermining its day - to - DATE operations \u201d .","Having regard to the fact that the listing had obliged the company to \u201c rebuild all the farm buildings currently at its disposal in a position other than that in which the operational buildings [ we]re currently located \u201d , and to the fact that this total reconstruction had been assessed by experts at ORG CARDINAL , the applicant company concluded its letter with a claim for that sum under the second paragraph of LAW above - mentioned LAW .","Having failed to reach a friendly settlement of the compensation claim , the applicant company lodged an application for compensation on DATE with the expropriations judge at the GPE tribunal de grande instance . At a hearing on DATE , the Government Commissioner noted that there was \u201c some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision \u201d .","In a judgment of DATE , the tribunal de grande instance rejected the application , noting in particular :","\u201c In the present case ... CARDINAL parts of the farm buildings have been listed , representing PERCENT of the total developed area .","The damage claimed by ORG mainly concerns developments affecting non - listed structures ; accordingly , the applicant company has not shown that it has sustained damage in respect of the listed premises alone or as a result of a change affecting the premises and capable of causing such damage ; it is not therefore entitled to rely on the provisions of LAW of DATE since the dispute concerns only the area surrounding the listed premises and , moreover , the applicant company is bound only by restrictions that do not preclude it from altering neighbouring premises if it abides by the prescriptions laid down by the authorities .","In these circumstances , it is appropriate to reject the application by ORG , which has not sustained direct and established pecuniary damage as a result of the listing of its buildings . \u201d","The applicant company appealed against that judgment , maintaining in particular that LAW of DATE was to be construed as creating an entitlement to compensation for all forms of damage sustained by an owner as a result of a listing decision , and not simply that sustained in respect of the listed buildings themselves . The applicant company further argued that \u201c such a restrictive construction of section CARDINAL ... would in effect deprive the owner of the compensation due to him for damage arising from a serious violation of his right of property , in breach of the French Constitution and LAW , which expressly guarantee respect for such right \u201d . The Government Commissioner noted , as at first instance , that there was \u201c some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision \u201d . He stated that the case in issue \u201c concern[ed ] an easement for the protection of the vicinity of a listed structure ... [ which was ] not to be confused with easements arising directly from a listing decision \u201d . He concluded that the grounds submitted in support of the applicant company \u2019s claim did not derive directly from the listing decision . On DATE ORG upheld the judgment and gave the following reasoning :","\u201c \u2013 Construction of section CARDINAL of the Act of DATE","The appellant company claims that LAW ... is to be construed as pertaining to the entire grouping of buildings , incorporating the listed structures .","However , that provision refers only to the listing decision .","The notion of \u2018 ORG as used in the second paragraph of LAW of DATE pertains only to the LOC designated in the listing decision .","The decision of CARDINAL DATE states that \u2018 the chapel and chapter house of the historic GPE commandery shall be listed as historic monuments ... \u2019 .","It is therefore appropriate to dismiss the claim of ORG whereby it contends that the term \u2018 premises\u2019 as used in the above - mentioned section CARDINAL should be construed as covering the entire property , which would be tantamount to the listing of the whole complex of buildings .","\u2013 Conditions of application of LAW of DATE","For there to be an entitlement to compensation , the easement relating to the listing must have entailed a change in the condition or use of the LOC giving rise to direct , substantiated and established damage , for which the burden of proof lies with the claimant .","In this connection ORG based its claim on the restrictions imposed on it , as a result of the listing , in respect of its plans for demolition , the construction of a farm shed or development of the farm site .","However , those restrictions , created by prior agreement with the national heritage architect , are not the result of any change in the status or use of the LOC , as the chapter house and chapel have not been affected by such changes .","The restrictions imposed on the company result from the application of LAW CARDINAL - CARDINAL - CARDINAL of LAW , which protects the view around a listed building by requiring the agreement of the national heritage architect prior to any demolition or construction .","Such an easement , pertaining to the protection of the area surrounding a listed building , does not give rise to the compensation provided for in the current legislation .","Moreover , ORG has obtained permission to erect a storage building , subject to the approval of the plan by the national heritage architect .","Lastly , such easements for the protection of the area surrounding a listed building derive from the law and can not give rise to compensation unless it is specifically provided for in a statutory instrument . ... \u201d","The applicant company subsequently lodged an appeal on points of law , in support of which it submitted a single ground with CARDINAL limbs . CARDINAL of its claims was that ORG decision had been devoid of the statutory basis required by LAW , as it had denied compensation for damage resulting from the listing without considering whether such refusal was contrary to the provisions of LAW .","On DATE ORG , rejecting the submissions of ORG , dismissed the appeal in a judgment containing the following reasoning :","\u201c ... having found , firstly , that LAW of DATE provided for compensation following a listing by official order if the resulting easements and obligations entailed a change in the condition or use of the LOC and , secondly , that the easement pertaining to the protection of the area surrounding a listed building did not give rise to any compensation under the current legislation , ORG , leaving aside a subsidiary consideration and without being required to make a determination that had not been sought from it as to the applicability of LAW , rightly considered that the notion of \u2018 premises\u2019 pertained only to those designated in the listing decision and dismissed the company \u2019s compensation claim , thus justifying its decision in law . \u201d","...","In GPE , the first provisions for the protection of historic monuments date back to DATE , when the church of FAC was listed . However , until DATE the listing process had few legal effects and the provisions of an LAW DATE were mainly \u201c contractual \u201d in nature .","It was only in DATE that a meaningful protection system was provided for in GPE with FAC of DATE , the basic statute governing heritage , which has since been amended a number of times . The LAW mainly lays down the procedures whereby immovable property whose preservation is in the public interest for historical or artistic reasons is to be added to the secondary or primary historic monuments lists . Such decisions carry various legal effects and may create easements or obligations which affect the property itself .","Only in respect of property on the primary list may the adverse consequences of easements and obligations relating to listing , under certain circumstances , give rise to compensation at the request of their owner , under the second paragraph of LAW of DATE .","LAW , in sections CARDINAL bis and QUANTITY ter , also provides for a protected area around buildings deemed to be of interest , such that , through the review of applications for building or demolition permits by the owners of property in the vicinity of listed buildings , their surroundings are protected and the aesthetic quality of the adjacent area is preserved as far as possible . Such easements , created for the benefit of owners of historic buildings , affect the adjacent property .","The protection of a historic monument , whether by secondary listing or by primary listing , under the amended LAW of DATE , automatically creates a conservation area around it , extending to QUANTITY . Over DATE , CARDINAL monuments have been protected under this legislation in GPE . In view of the geographical proximity of some monuments or even their superposition in certain cases , the aggregate surface area of the conservation areas thus created , and consequently the number of properties concerned , are considerable .","The total protected area becomes even greater when account is taken of sites classified under LAW DATE on the protection of natural monuments and places of artistic , historic , scientific , legendary or scenic interest , together with the architectural and landscape heritage areas ( zones de protection du patrimoine architectural et paysager PERSON ) set up under sections CARDINAL to CARDINAL of Law no . CARDINAL - CARDINAL of DATE on the division of powers between municipalities , d\u00e9partements , regions and the ORG .","\u201c Immovable property whose preservation is in the public interest for historical or artistic reasons shall be entered on the primary list of historic monuments , as a whole or in part , by the minister responsible for the fine arts , in accordance with the distinctions laid down in the following sections .","Immovable property subject to listing under the present Act shall include :","...","Immovable property of which listing is necessary to allow for the isolation , clearing or cleaning of a listed building or building proposed for listing ;","NORP In general terms , developed or undeveloped property located within the field of view of a listed building or building proposed for listing . For the purposes of this LAW , the criterion of being located within the field of view of a listed building or building proposed for listing shall be regarded as applying to any other developed or undeveloped property that is visible from the former , or at the same time as the former , and is situated within a range of not QUANTITY . On an exceptional basis this range may be extended beyond QUANTITY . A decision of the PERSON d\u2019Etat , adopted further to an opinion of ORG , shall indicate the monuments to which such extension may apply and shall determine the range of the protected area in each case .","From the date on which the fine arts authority notifies the owner of a listing proposal , all the effects of such listing shall apply automatically to the property concerned . They shall cease to apply if the listing decision is not taken within \u2018 QUANTITY months\u2019 following such notification .","... \u201d","\u201c The following property shall be regarded as having been validly listed prior to the enactment of this law : ( CARDINAL ) buildings listed on the general schedule of listed monuments , officially published in DATE by the fine arts authority ; ( CARDINAL ) those and other buildings that have been listed by means of a decision [ arr\u00eat\u00e9 or d\u00e9cret ] under LAW of DATE .","Within DATE , the schedule of buildings regarded as listed prior to the enactment of this Act shall be published in ORG . An entry shall be drawn up for each of those buildings giving full particulars thereof ; the fine arts authority shall ensure that the entry is filed with the appropriate ORG for the site of the property . Such registration shall not give rise to any taxes payable to the ORG .","The primary list of protected buildings shall be kept up to date and published at least once DATE .","Public or private buildings , or parts of buildings , which , without warranting an immediate proposal for addition to the primary list , nevertheless have sufficient historical or artistic interest for their preservation to be desirable , may at any time be added to the secondary list by decision of the regional prefect , or , where such secondary listing is proposed by ORG , by decision of the minister responsible for cultural affairs .","Secondary listing under the same conditions may also apply to any developed or undeveloped property situated within the field of view of a building already listed on the primary or secondary list . The regional prefect shall ensure that decisions to add buildings to the secondary list of historic monuments are registered at the appropriate ORG for the site of the listed building . Such registration , which shall not give rise to any taxes payable to the ORG , shall be carried out in accordance with the formalities and procedures laid down by the legislation on land registration .","Owners shall be notified of such secondary listing , which shall impose on them an obligation not to make any alterations to the listed building or part of a building , without having informed the regional prefect , giving CARDINAL months\u2019 notice , of their intention and of the work they propose to carry out .","The minister may object to such work only by initiating the primary listing procedure as provided for herein .","However , if the purpose or effect of the work is to divide up or strip the building or part of building on the secondary list , for the sole purpose of selling all or part of the materials thus detached , the minister shall have DATE in which to decide on its primary listing and may , in the meantime , order the suspension of the work in question .","The minister responsible for education shall be authorised to subsidise PERCENT of the actual cost of any maintenance or repair work that may be required for the preservation of buildings or parts of buildings listed on the secondary list of historic monuments . The work shall be carried out under the supervision of the historic monuments authority . \u201d","\u201c Property belonging to any persons other than those enumerated in sections CARDINAL and CARDINAL shall be added to the primary list by decision of the minister responsible for cultural affairs , where the owner has given consent . The decision shall lay down the conditions attached to such listing .","Where the owner has not given consent , the addition to the primary list shall be decided by an order of the ORG d\u2019Etat which shall lay down the conditions attached to the listing and in particular any easements or other obligations thus created . The primary listing may then entitle the owner to compensation if , as a result of such easements or obligations , a change in the status or use of the LOC gives rise to direct and established pecuniary damage . The application for compensation shall be lodged within DATE from the notification of the primary listing decision . If the compensation can not be agreed upon by friendly settlement , its amount shall be determined by the expropriations judge .","The government may decide not to act upon such a listing order under the conditions thus laid down . In such cases it shall be required , within DATE from the notification of the judgment , to repeal the listing decision or to proceed with the expropriation of the property . \u201d","\u201c When immovable property is located within the field of view of a listed building , it may not be subjected , whether by private owners or by public authorities or establishments , to any new construction , demolition , deforestation , transformation or alteration capable of affecting its appearance , without prior authorisation .","Building permits issued under legislation on building lines and on municipal and regional land - use and urban development plans shall constitute authorisation , as provided for in the preceding paragraph , provided they have been endorsed with the approval of the national heritage architect . \u201d","\u201c Where it does not concern work for which a building permit , a demolition permit , or the authorisation provided for under LAW is necessary , the application for authorisation under LAW bis shall be addressed to the prefect , who shall give his decision after seeking the opinion of the national heritage architect . However , if the minister responsible for historic monuments has decided to take up the matter , authorisation may be given only with his express agreement .","If the prefect has not notified his response to the applicants within DATE from the filing of their application , or if they are not satisfied by the response they have received , they may refer the matter to the minister responsible for cultural affairs within DATE from the notification of the prefect \u2019s response or following the expiry of the DATE period allowed for such notification .","The minister shall decide . If his decision has not been notified to the applicants within DATE following receipt of their application , the application shall be deemed to have been refused .","The applicants shall comply with the restrictions imposed on them for the protection of the listed building , either by the national heritage architect in the case referred to in the second paragraph of LAW bis , or by the prefect or minister responsible for cultural affairs in the cases referred to in the first , second and third paragraphs of this section . \u201d","\u201c In accordance with LAW bis of FAC of DATE , as amended , where immovable property is located within the field of view of a listed building , it may not be subjected , whether by private owners or by public authorities or establishments , to any new construction , demolition , deforestation , transformation or alteration capable of affecting its appearance , without prior authorisation . Building permits shall constitute such authorisation provided they have been endorsed with the approval of the national heritage architect . \u201d","\u201c Where a construction is located within the field of view of a listed building , the building permit may be issued only with the authorisation of the national heritage architect .","Pursuant to the third paragraph of LAW bis of FAC of DATE , as amended , the regional prefect , upon a written request by the mayor or authority empowered to issue the building permit , sent by registered letter with return receipt within DATE following notification of the national heritage architect \u2019s opinion , shall , after consulting the regional commission on heritage and sites , deliver an opinion superseding that of the national heritage architect .","Where the mayor is not the authority empowered to issue the permit , the regional prefect shall notify the authority in question of the request he has received from the mayor .","The opinion of the regional prefect shall be notified to the mayor and to the authority empowered to issue the permit . The regional prefect shall be deemed to have confirmed the opinion of the national heritage architect if he has not responded within DATE following receipt of the request , unless the matter has , in the meantime , been taken up by the minister responsible for culture . In such a case , the permit may be issued only with the express agreement of the minister . The minister \u2019s decision to take up the matter shall be notified to the applicant , to the mayor and to the competent authority .","If the national heritage architect refuses to give his approval or gives conditional approval , the authority empowered to issue the permit may , within DATE from receipt of that decision , refer the matter to the minister responsible for historic monuments . For such purpose that authority shall transmit to the minister the file on the application for a building permit , together with the document stating the position of the national heritage architect . In cases where the mayor is empowered to issue a building permit , he shall inform the prefect of such referral . The permit may then be issued only with the express agreement of the minister . If the minister fails to respond within DATE from the date of referral he shall be deemed to have confirmed the position of the national heritage architect . \u201d","\u201c There shall be no entitlement to compensation for easements created pursuant to this LAW in respect of roads , sanitation , aesthetic appearance , or for other purposes , and pertaining in particular to the use of land , the height of edifices , the proportion of developed and undeveloped land within each property , prohibited construction in certain areas and along certain roads , or the distribution of buildings between different areas .","However , compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct , pecuniary and established damage . Unless a friendly settlement is reached , such compensation shall be assessed by the administrative court , which shall take into account the increase in value of a building produced by the implementation of a land - use plan that has been made public , or of an approved local - development plan or equivalent document . \u201d","The latter provision and the question of statutory easements have been addressed in various ways in case - law ( see , inter alia , ORG , judgment of the ORG d\u2019Etat of CARDINAL DATE , and PERSON Culture c. PERSON , judgment of the PERSON d\u2019Etat of CARDINAL DATE ) . As to the obligation of the administrative court to examine , if necessary proprio motu , the merits of an application for compensation under LAW , see the judgment delivered by the ORG d\u2019Etat on DATE in LOC . PERSON .","Moreover , the PERSON d\u2019Etat has stated , in the light of LAW No . CARDINAL , that LAW \u201c does not set out a general and absolute principle , but expressly provides for CARDINAL exceptions as regards the vested rights of owners and a change in the previous condition of the land . Lastly , the LAW in question does not prevent an owner whose property is affected by an easement from claiming compensation in exceptional cases where the aggregate of the conditions and circumstances in which the easement has been created and implemented , as well as its substance , have imposed on the owner an individual and excessive burden out of proportion with the general - interest objective pursued . In these circumstances , the applicant is not justified in asserting that Article L. CARDINAL - CARDINAL of LAW is incompatible with the provisions of LAW No . CARDINAL to LAW \u201d ( ORG , judgment of the ORG d\u2019Etat of CARDINAL DATE , PERSON DATE , p. CARDINAL , and PERSON , judgment of the ORG d\u2019Etat of DATE ) .","...","This convention provides , in particular :","\u201c The Parties to this Convention agree to :","( a ) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life , as defined in LAW ;","( b ) recognise individual and collective responsibility towards cultural heritage ;","( c ) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal ;","... \u201d","\u201c To sustain the cultural heritage , the Parties undertake to :","( a ) promote respect for the integrity of the cultural heritage by ensuring that decisions about change include an understanding of the cultural values involved ;","( b ) define and promote principles for sustainable management , and to encourage maintenance ;","... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58148","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1998,"docname":"CASE OF K.D.B. v. THE NETHERLANDS","importance":3,"conclusion":"No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)","judges":"","text":["The applicant was born in DATE and lives in LOC . He has a farm where he keeps cattle for slaughter .","On DATE cattle on the applicant 's farm was inspected by ORG ( Algemene inspectiedienst ) of ORG ( PERSON , PERSON ) . CARDINAL cows were singled out to which the applicant was suspected of having administered the illegal substance clenbuterol .","DATE the public prosecutor ( officier van justitie ) ordered an interim measure pursuant to LAW ( see paragraph CARDINAL below ) under which the applicant was restrained from removing the CARDINAL cows from his premises without permission and from obstructing the identification of the cows .","After tests had borne out that clenbuterol had been administered to CARDINAL of the CARDINAL cows , ORG seized these CARDINAL cows on DATE pursuant to section CARDINAL of LAW ( see paragraph CARDINAL below ) .","The applicant was given a receipt for these cows , which stated that an objection against the seizure could be lodged with ORG pursuant to LAW PERSON of LAW ( Wetboek van Strafvordering \u2013 see paragraph CARDINAL below ) .","It appears that the restrictions affecting the other CARDINAL cows were lifted .","On DATE the public prosecutor applied under LAW ( see paragraph CARDINAL below ) to ORG for permission to have the CARDINAL cows destroyed . The reasons given were that since they had been contaminated by an illegal substance , they would never again be marketable for human or animal consumption , and that moreover it was impracticable and costly to keep them for any length of time .","On DATE the applicant applied for the interim measure ordered on DATE ( see paragraph CARDINAL above ) to be lifted .","ORG held a hearing in camera on DATE . At that hearing the public prosecutor announced that the interim measure of CARDINAL DATE would be withdrawn . It does not , however , appear that this had happened by the time ORG gave its decision .","On DATE the applicant again applied to ORG for an order to have the interim measure lifted , or in the alternative to have the cows tested anew and to order the lifting of the interim measure if it was shown that the concentrations of clenbuterol did not exceed legal limits .","A hearing was held in camera DATE . In his oral submissions the applicant 's lawyer referred to ORG CARDINAL\/CARDINAL of DATE , which contained rules for testing cattle which had in his submission been disregarded in the present case .","On DATE ORG rejected the applicant 's applications of DATE and CARDINAL DATE . It held that the applicant had no legal interest in applying for the interim measure complained of to be lifted since the public prosecutor had already ORG announced that this would be done . In the same decision it authorised the public prosecutor to have the cows destroyed , since it appeared from the case file that it was in any event unlikely that the cows would not eventually be declared forfeit ( onttrokken aan het verkeer ) .","The cows were slaughtered shortly after ORG decision .","On DATE the applicant , through his lawyer , lodged an appeal on points of law to ORG ( PERSON ) . The lawyer did not submit any grounds of appeal in writing .","On DATE the Procurator - General of ORG submitted an advisory opinion to the effect that no grounds of appeal had been submitted and that there were no reasons for ORG to quash the decision appealed against ex officio . He appended to his opinion a copy of a preliminary ruling of ORG of ORG concerning the interpretation of ORG CARDINAL\/CARDINAL .","It appears that neither the applicant nor his lawyer received any notice of this until after ORG had given judgment .","On DATE the applicant was notified by the Procurator - General that ORG had dismissed his appeal on DATE .","The DATE Ordinance on substances with a sympathomimetic effect ( NORP stoffen met sympathico mimetische werking ) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle DATE . Section CARDINAL(CARDINAL ) of that Ordinance makes it illegal to have in stock , sell or purchase beef cattle to which such substances have been administered , and section PERSON ) makes it illegal to have in stock , sell or purchase their meat .","Clenbuterol is , moreover , an unregistered animal medicine the use or possession of which is prohibited by LAW ( PERSON ) .","The offences here described are economic offences for the purposes of LAW ( section CARDINAL of that Act ) .","LAW lays down particular rules for the prosecution and punishment of economic offences . In so far as procedure is concerned , it is a lex specialis in relation to LAW , the provisions of the latter remaining applicable in so far as LAW does not provide otherwise ( LAW ) .","Section CARDINAL(CARDINAL ) of the Economic Offences Act empowers the public prosecutor , until the beginning of the court hearing in the case , to order a person against whom a serious suspicion has arisen , by way of interim measure , to desist from particular actions or to keep or store particular goods in a particular place .","It is open to the person to whom such an order has been issued to apply to the trial court which is to deal with the case for the order to be lifted ( section DATE ) of LAW ) .","An appeal against a refusal lies to ORG ( section CARDINAL ) .","A further appeal on points of law lies to ORG ( section CARDINALa ) . The accused is required to have a written statement of grounds of appeal submitted by a lawyer within DATE of lodging the appeal , failing which his appeal will be declared inadmissible . The ORG shall decide as soon as possible .","It would appear that this procedure was not followed in the present case , since the appeal was not lodged with ORG but directly with ORG .","Goods or objects which may help to establish the truth or the existence of illegal gains , or which may be declared forfeit , may be seized by officers invested with investigative competence ( opsporingsambtenaren ) ( section CARDINAL ) of the Economic Offences Act taken together with LAW ) .","Interested parties may lodge a written complaint ( schriftelijk zich beklagen ) against such seizure with the trial court before which the case is pending ( Article CARDINALa \u00a7 CARDINAL of LAW ) . The parties concerned have the right to be heard ( Article CARDINALa \u00a7 CARDINAL ) .","An appeal lies on points of law to ORG ( Article PERSON ) .","It would appear that this was the procedure followed in the present case .","The accused has the right to submit written grounds of appeal within DATE of lodging his appeal on points of law ( LAW ) , but his appeal is not automatically declared inadmissible if he does not .","If the said goods or objects can not be stored , the trial court may authorise the public prosecutor to have them sold , destroyed , abandoned ( prijsgegeven ) or used for some purpose other than the criminal investigation ( LAW ) . No appeal lies against the trial court 's decision ( LAW ) .","If it emerges that it is appropriate to return seized goods to the owner but that this is impossible because the goods have been lawfully sold , destroyed or abandoned , then the interested party shall be paid compensation to an amount equivalent to the price for which the goods might reasonably have been sold ( LAW ) .","All matters which may arise in the course of criminal proceedings which are not required to be decided in open court are dealt with in camera ( LAW ) ; matters so dealt with include interim measures under LAW and seizures .","In the case of appeals on points of law against a judgment delivered in open court ( uitspraak ) the accused is entitled to submit at the hearing grounds of appeal not filed at an earlier stage ( LAW ) . There is no equivalent provision for appeals on points of law against orders given in camera ( beschikkingen ) .","The duties and position of the Procurator - General 's department ( openbaar ministerie ) are defined in ORG ( Wet op de rechterlijke organisatie ) .","The Procurator - General 's department consists of the Procurator - General and advocates - general of ORG , the procurators - general and advocates - general of the courts of appeal and the public prosecutors of the regional and district courts ( section CARDINAL(CARDINAL ) of ORG ) . The advocates - general of ORG act as deputies of the Procurator - General of that court and are subordinate to him ( sections CARDINAL(CARDINAL ) , CARDINAL and DATE ) ) .","The Procurator - General 's department must be heard by the courts in so far as the law so prescribes ( section CARDINAL ) . The advisory opinion of the Procurator - General or an advocate - general to ORG takes the form of a learned treatise containing references to relevant case - law and legal literature and a recommendation , which is not binding on ORG , to uphold or reject points of appeal ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110806","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF BEZRUKOVY v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award;Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The first applicant was born in DATE . The second applicant is the first applicant \u2019s daughter , born in DATE . They live in GPE .","In DATE and DATE the applicants made various monetary deposits with the GPE branch of ORG ( \u201c \u0421\u0411\u0421-\u0410\u0433\u0440\u043e \u201d ) . In DATE , during a financial crisis in GPE and rapid currency devaluation , they requested the bank to refund the capital with interest , but the bank refused . On DATE the ORG of GPE ( \u201c the ORG \u201d ) allowed the ORG claim against the bank . The first and second applicant were awarded CARDINAL and CARDINAL United States dollars ( ORG ) respectively .","The bailiffs started enforcement proceedings on CARDINAL DATE . Meanwhile , the bank became insolvent . On DATE the enforcement proceedings were discontinued . The judgment of CARDINAL August DATE remained unenforced .","On DATE and DATE ORG ( \u201c the LOC \u201d ) declared a moratorium until DATE on the execution of all creditors\u2019 demands against ORG ( \u201c the bank \u201d ) . The moratorium was later prolonged . On DATE the management of the bank was taken over temporarily by ORG ( \u201c ARKO \u201d ) , set up by the ORG in accordance with the Law on Restructuring of ORG .","On DATE the applicants sued ORG and the ARKO for damages on the ground that the bank remained under the ARKO \u2019s effective control since DATE . ORG held a hearing in the applicants\u2019 case on DATE . The ORG filed written observations but was not represented at the hearing . ORG did not file observations , nor was it represented at the hearing . In its judgment delivered on DATE ORG noted that the bank was being managed by the ARKO at the material time and found the latter responsible for the bank \u2019s obligations , including its debt owed to the applicants . It held that the ARKO was to pay the first and second applicants ORG CARDINAL and ORG CARDINAL respectively .","NORP ORG ( \u201c the Regional Court \u201d ) allowed the ARKO \u2019s appeal on DATE and set aside ORG judgment of DATE .","Following another remittal , on DATE ORG again found for the applicants , in terms similar to those of its judgment of DATE . The applicants were awarded the same amounts , payable by the ARKO . The judgment also held that the ARKO had to pay an amount of ORG CARDINAL to another plaintiff , PERSON . The judgment specified that it was subject to appeal before ORG within DATE .","The ARKO lodged an appeal against the judgment of DATE . ORG joined the appellate proceedings . On DATE the ARKO was closed .","On DATE ORG heard the ARKO \u2019s appeal against ORG judgment of DATE . The representative of ORG took part in the hearing as a codefendant . ORG observed that the ARKO had been closed and discontinued the appellate proceedings . ORG judgment of DATE in the ORG favour accordingly became binding and enforceable .","On DATE ORG issued a writ of execution in respect of its judgment of DATE , which had acquired legal force on DATE .","On DATE ORG lodged an appeal with ORG against the judgment of DATE . They also requested that the DATE time - limit for appeal be extended on the ground that they had been deprived of the opportunity to have the lawfulness of the judgment of DATE reviewed by ORG .","On DATE ORG extended the time - limit for appeal as requested by ORG . It noted that ORG \u201c had joined \u201d the ARKO \u2019s appeal against the judgment of DATE which had been dismissed without being considered on its merits . ORG concluded that ORG had been deprived of its statutory right to appeal against the judgment of DATE .","On DATE ORG considered ORG appeal against ORG judgment of DATE . It heard the same representative of ORG who took part in the hearing held by the same court on DATE to consider the ORG \u2019s appeal which was then joined by ORG . The court observed that both the ARKO and ORG were co - defendants in the case and that the ARKO had been closed . ORG concluded that its earlier decision of DATE was based on an incorrect application of the relevant legal provisions , set aside the judgment of DATE in the ORG favour and discontinued the proceedings .","On DATE ORG delivered a judgment in respect of PERSON ( PERSON v. GPE , no . CARDINAL , DATE ) , who was at a certain stage the applicants\u2019 coplaintiff in the domestic proceedings ( see paragraph CARDINAL above ) . In DATE he had obtained a separate judgment awarding him an amount of MONEY ( RUB ) , payable by the ARKO ( see PERSON , cited above , \u00a7 \u00a7 DATE ) . The ORG found a violation of LAW in that ORG had quashed in DATE the binding and enforceable judgment in Mr PERSON \u2019s favour by way of supervisory review .","Following the ORG \u2019s judgment of DATE , the applicants lodged an application for review of ORG judgment of DATE , relying on Articles CARDINAL - CARDINAL of the Code of Civil Procedure . On DATE the Presidium of ORG dismissed their application .","NORP Under LAW ( \u201c the ORG \u201d ) , a competent court may extend an expired time - limit for procedural actions , such as lodging an appeal , if the court finds that a party has a valid excuse for failure to comply with that time - limit ( LAW ) .","An appellate court shall set aside the judgments and discontinue the proceedings if a legal entity which is a party to the proceedings has been liquidated ( LAW in conjunction with LAW CCP ) .","A final judgement in a case may be reviewed , inter alia , on the ground that ORG found a violation of the LAW on account of the domestic judicial proceedings or decisions taken in that case ( LAW ORG ) . Articles CARDINAL - CARDINAL set out a procedure for reopening of domestic judicial proceedings in any such case .","The ARKO was a ORG corporation ( LAW . CARDINALFZ of DATE on Restructuring of ORG ) , that is , a non - commercial organisation established by ORG in order to exercise certain social , administrative or other socially beneficial functions ( Article CARDINAL of the Law No . CARDINAL of DATE on ORG , as amended by ORG . ORG of CARDINAL DATE ) ."],"violated_articles":["6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94979","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF UZUNGET AND OTHERS v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and DATE respectively and live in GPE .","On DATE the applicants , together with several other persons , gathered in a public park in GPE in protest against F - type prisons and the events which had occurred in FAC ( violent clashes had taken place between the detainees and security forces on DATE ) . The participants wanted to read out a press statement in order to express their concerns about F - type prisons and the events in FAC . Police officers warned the crowd over a megaphone that the demonstration was illegal under LAW no . CARDINAL on Meetings and Demonstration Marches . The group ignored the police warning . The police officers then arrested CARDINAL persons , including the applicants , and took them into custody . It appears from the newspaper articles submitted by the applicants that the police officers used force in order to disperse the protesters . As a result , some of the protestors were injured and a number of them were arrested by the police officers .","According to the arrest report , drawn up and signed by the police officers , the applicants were demonstrating with protest banners in their hands . After having warned them to desist , the police arrested the protesters who continued demonstrating . It was also noted in the arrest report that QUANTITY police officers , who had been injured during the clash with the demonstrators at the time of the arrest , had had to be taken to hospital . The medical reports stated that the police officers were unfit for work for DATE .","On DATE ORG filed an indictment with ORG against the applicants and CARDINAL others , charging them with having taken part in a demonstration in a public place , without the permission of the authorities , contrary to PERSON no . CARDINAL .","The applicants alleged that the police officers had been armed during the hearings before the trial court and had verbally harassed the defence lawyers . Moreover , the police officers had obtained a copy of the reports and statements in the case file even though they were not a party to the proceedings . The applicants ' request to include these facts in the record of the hearings was dismissed .","On DATE ORG acquitted some of the accused but convicted the applicants on the basis of the evidence given by them and by witnesses . The court found that the applicants had ignored the police warning that their meeting was illegal and that they had to disperse . The police had had to use force in order to arrest the applicants . Furthermore , having examined the applicants ' defence submissions , the court considered that the applicants had indirectly confessed to the crime ( tevil yollu ikrar ) by admitting that they had gathered in the park in order to protest against F - type prisons and the events in FAC . It then sentenced PERSON to a fine , taking into account the fact that he was a minor at the time of the incident ( DATE ) , whereas it sentenced the other applicants to DATE and DATE imprisonment . It decided to suspend enforcement of the applicants ' sentence , under LAW no . CARDINAL , with the exception of GPE , PERSON and PERSON .","On DATE the applicants appealed to ORG against the judgment of the first - instance court . The written opinion of ORG at ORG was not transmitted to the applicants .","On DATE ORG upheld the decision of the first - instance court .","Section CARDINAL of Law no . CARDINAL on the Execution of Sentences reads as follows :","\u201c Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and\/or a [ maximum ] term of DATE imprisonment may have his [ her ] sentence suspended if the court is satisfied that [ the offender ] , having regard to his [ her ] criminal record and criminal tendencies , will not reoffend if [ the ] sentence is thus suspended ... \u201d","Section CARDINAL of Law no . CARDINAL on the Establishment and Rules of Procedure of ORG , as amended by PERSON no . CARDINAL of DATE , provides :","\u201c Criminal cases which concern crimes that normally fall under the jurisdiction of the regular courts and are committed by minors who are not yet DATE of age shall be examined by the juvenile courts . \u201d","DATE LAW provides :","\u201c Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission . ...","The formalities , conditions , and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law . \u201d","At the material time section CARDINAL of LAW ( Law no . CARDINAL ) was worded as follows :","\u201c In order for a meeting to take place , the governor 's office or authorities of the district in which the demonstration is planned must be informed , during TIME and CARDINAL prior to the meeting , by a notice containing the signature of all the members of the organising board ... \u201d","Section CARDINAL of the same LAW prohibited demonstrations and processions on public streets , in parks , places of worship and buildings in which public services were based . Demonstrations organised in public squares had to comply with security instructions and not obstruct individual movement or public transport . Finally , section CARDINAL provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor 's office and after the demonstrators had been warned .","Section CARDINAL of Law no . CARDINAL on the Duties and Powers of the Police provides :","\u201c The police may use firearms :","( a ) in self defence , ...","( h ) or if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police . \u201d","Additional section CARDINAL of Law no . CARDINAL on the Duties and Powers of the Police provides :","\u201c In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of an attack or threat of an attack , the police may use violence to subdue these actions .","Use of violence refers to the use of bodily force , physical force and all types of weapons specified in the law and gradually increases according to the nature and level of resistance and attack in such a way as to restore calm .","In cases of intervention by group forces , the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force . \u201d"],"violated_articles":["11","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67238","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2004,"docname":"CASE OF NESHEV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Georg Ress","text":["The applicant was born in DATE and lives in GPE . He used to work as a shunter at ORG . On DATE he was dismissed from his work for having breached disciplinary regulations .","On DATE the applicant filed with ORG an action for wrongful dismissal against his former employer .","On DATE the ORG heard the applicant and his lawyer and rejected the case , ruling that the applicant \u2019s dismissal was not amenable to judicial review . It based its decision on section CARDINAL ) of the Decree No . CARDINAL of DATE and ORG practice , according to which employees of ORG dismissed for breach of disciplinary regulations could only appeal to a higher administrative body , not to a court .","On DATE the applicant appealed to ORG against ORG decision . He argued that Decree No . CARDINAL was contrary to LAW . He also relied on an amendment to LAW , stating that it vested with the courts power to examine all appeals for wrongful dismissal , despite the provisions of Decree No . CARDINAL .","NORP By decision bearing the date CARDINAL DATE ORG , sitting in private , dismissed the applicant \u2019s appeal , holding that in accordance with Decree No . CARDINAL a judicial appeal against the applicant \u2019s dismissal was not possible .","ORG decision was not pronounced publicly and was not served .","On DATE the case file was transmitted by the judge - rapporteur to ORG clerical staff which made an entry in the court \u2019s register .","On DATE the case file was transmitted to ORG and an entry was made in its register .","On DATE the applicant submitted a petition for review ( \u043f\u0440\u0435\u0433\u043b\u0435\u0434 \u043f\u043e \u0440\u0435\u0434\u0430 \u043d\u0430 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 ) to ORG .","The parties were summoned for a hearing but none of them appeared .","On DATE , sitting in private , ORG rejected the petition for review as time barred . It held that ORG decision had entered into force on DATE and that the CARDINAL months\u2019 time - limit for submission of a petition for review had expired on DATE whereas the petition had been submitted on DATE .","At the relevant time , in accordance with Decree No . CARDINAL of DATE , employees of ORG were subject to a special legal regime . They had ranks , wore uniforms and were subject to strict hierarchy and discipline , under the control of ORG . Decree No . CARDINAL set out the special rules governing service in ORG . LAW had subsidiary application .","Section CARDINAL of the Decree , as in force at the relevant time and until DATE , provided , inter alia , that disputes about wrongful dismissal of employees of ORG were amenable to review by the higher administrative authority only . As a result , until DATE the ORG practice was to reject actions for wrongful dismissal of PERSON employees .","In a judgment of CARDINAL DATE ORG , departing from earlier practice , held that the prohibition of judicial review under Decree No . CARDINAL was to be considered abandoned since DATE , the date on which an amendment to LAW had entered into force ( \u043e\u043f\u0440. no . CARDINAL \u043e\u0442 CARDINAL \u0433. , ORG , \u043a\u043d. DATE \u0433. , \u0441\u0442\u0440. CARDINAL ) .","The relevant part of LAW CARDINAL was eventually repealed by ORG by decision of DATE as unconstitutional and contrary to LAW . ORG held that dismissal from work could not be excluded from the jurisdiction of the courts , regard being had to the fact that the right to work is one of the fundamental constitutional rights ( \u0440\u0435\u0448. no . CARDINAL \u043e\u0442 CARDINAL \u043f\u043e \u043a\u043e\u043d\u0441\u0442. \u0434\u0435\u043b\u043e no . CARDINAL \u0433. \u043d\u0430 \u041a\u0421 \u043d\u0430 \u0420\u0411 , ORG \u0432\u0435\u0441\u0442\u043d\u0438\u043a , \u0431\u0440. CARDINAL ) .","In DATE the remainder of Decree No . CARDINAL was repealed and the special legal regime of ORG employees abandoned .","Under LAW as in force at the relevant time , service was required only in respect of judgments and certain types of procedural decisions issued by a first level of jurisdiction .","Judgments or decisions delivered by a court acting as a second level jurisdiction were not served despite the fact that most of them were amenable to review ( \u043f\u0440\u0435\u0433\u043b\u0435\u0434 \u043f\u043e \u0440\u0435\u0434\u0430 \u043d\u0430 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 ) , within particular time limits , before ORG ( which was later reconstituted into ORG and ORG ) .","As a result , whenever second instance cases were decided in private ( which was the rule in appeals against procedural decisions ) , the parties could only learn whether or not their case had been decided by visiting the respective court and checking its register periodically .","Article CARDINAL of the Code of Civil Procedure , as in force at the relevant time , provided that a petition for review could be submitted within DATE from the impugned decision \u2019s entry into force . At that time judgments and decisions issued by a second level of jurisdiction entered into force on the date on which they were made ( opr . CARDINAL - CARDINAL-III ) .","According to the applicant , the courts nevertheless would normally count the DATE time - limit from the date on which the second instance judgment or decision was entered in the respective register . No relevant case - law has been cited by the parties ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102902","languageisocode":"ENG","respondent":"UKR","branch":"COMMITTEE","date":2011,"docname":"CASE OF PROKOPENKO v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 5-3","judges":"Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in the town of GPE , GPE .","The applicant worked as a customs officer at the GPE railway border checkpoint .","According to the records provided by the ORG , on DATE criminal proceedings were instituted against the applicant in connection with CARDINAL episode of smuggling CARDINAL electronic devices of the same type , intended for military use . On DATE and CARDINAL DATE criminal proceedings were instituted against PERSON and PERSON , respectively , in connection with the same episode of smuggling .","On DATE the applicant was arrested on the suspicion that he had committed the above crime . On DATE the Shevchenkivsky ORG of GPE ordered the applicant \u2019s detention on remand relying on the suspicion that he had committed a crime punishable by imprisonment . It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might leave GPE and obstruct the investigation .","On DATE the proceedings against the applicant , PERSON and Ms. PERSON were joined .","On an unspecified date in DATE the applicant \u2019s criminal case was sent to ORG for consideration .","On DATE , CARDINAL DATE , and DATE ORG dismissed the applicant \u2019s requests for release , having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure .","On DATE ORG convicted the applicant of smuggling , abuse of authority and tax evasion . The court sentenced the applicant to eleven years\u2019 imprisonment .","On DATE ORG of Appeal quashed that judgment and remitted the case for a new consideration to ORG . By the same ruling , the court of appeal continued the applicant \u2019s remand in custody without indicating any reason .","On DATE ORG rejected the applicant \u2019s and PERSON PERSON \u2019s requests for leave to appeal in cassation against the decision of CARDINAL DATE .","On DATE the applicant lodged a request for release which was dismissed the same day . ORG found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure .","On DATE ORG ordered an expert examination of the smuggled devices .","On DATE the applicant lodged a request with the trial court asking the court to lift the preventive measure of detention . On DATE the court dismissed his request , having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure .","On DATE the expert report was sent to the court .","According to the records provided by the ORG , DATE and DATE the ORG scheduled no hearings .","On DATE the ORG convicted the applicant of smuggling , abuse of authority and tax evasion . The court sentenced the applicant to CARDINAL years\u2019 imprisonment with confiscation of his movable property .","On DATE ORG upheld the judgment of CARDINAL DATE with minor amendments .","On DATE ORG rejected the applicant \u2019s request for leave to appeal in cassation .","While the criminal proceedings against the applicant were pending , the applicant unsuccessfully sought institution of criminal proceedings against the persons who prepared the expert reports in his criminal case .","Provisions of the Code of Criminal Procedure of CARDINAL DATE on preventive measures are set out in GPE v. GPE ( no . CARDINAL , \u00a7 DATE , ORG CARDINALII ( extracts ) ) ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115400","languageisocode":"ENG","respondent":"POL","branch":"COMMITTEE","date":2012,"docname":"CASE OF PURPIAN SP. Z O.O. v. POLAND","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Krzysztof Wojtyczek;Zdravka Kalaydjieva","text":["NORP The applicant company , Purpian sp . z o.o . , is a NORP limited liability company having its registered office in GPE .","On DATE the applicant company instituted civil proceedings against a certain PERSON for payment .","In DATE and DATE QUANTITY hearings were adjourned due to the applicant company \u2019s absence . Furthermore the hearings scheduled for CARDINAL May and DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE were adjourned or cancelled on the applicant company \u2019s request .","On DATE the Ostr\u00f3w Wielkopolski ORG gave a judgment . Both the applicant company and the other party to the proceedings appealed against the judgment .","By a judgment of CARDINAL DATE ORG dismissed the appeals , upholding the first - instance judgment .","On an unspecified date the applicant company lodged a complaint under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki DATE \u201c the CARDINAL Act \u201d ) . It sought a finding that the length of the proceedings had been excessive and claimed MONEY ( ORG ) in compensation .","By a decision of DATE ORG held that the length of the proceedings had been excessive and awarded the applicant company ORG CARDINAL in compensation .","On DATE the applicant company lodged another complaint under LAW .","By a decision of CARDINAL DATE ORG dismissed the complaint , holding that the proceedings had been conducted in a correct and timely manner . The court further expressed a view that the length of the proceedings had been largely due to the conduct of the parties , including that of the applicant company .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG \u2019s decisions in cases of ORG v. GPE DATE . ) , no . CARDINAL , \u00a7 \u00a7 CARDINAL , ECHR CARDINAL-V ; PERSON GPE DATE . ) , no . CARDINAL , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5094","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2000,"docname":"DE ARRIZ PORRAS v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national born in DATE . He is represented before the ORG by Ms A.E.M. GPE , a lawyer practising in GPE .","The applicant is a retired senior diplomat . At the time of the events complained of he had no diplomatic status . On DATE , while in transit from GPE to GPE and travelling on CARDINAL passports ( CARDINAL ordinary , the other a diplomatic CARDINAL containing a LOC visa ) , he was arrested at GPE ( GPE ) airport after customs found a quantity of cocaine in excess of QUANTITY in his luggage . The applicant was also found to be carrying a large sum of money in cash . The cocaine had been packed in parcels secured with adhesive tape . It appears from police reports that adhesive tape with which the applicant \u2019s luggage had been secured was identical to that used for packing the cocaine . The applicant relinquished title to the cocaine and the packaging materials ( including the tape ) , and these were destroyed .","The applicant was tried by ORG ( Arrondissementsrechtbank ) of GPE , which on DATE found him guilty of having intentionally imported cocaine and sentenced him to CARDINAL years\u2019 imprisonment . The applicant appealed .","The appeal was heard by ORG ( Gerechtshof ) of GPE on DATE . The appeal was by way of a complete rehearing , as is prescribed by GPE law .","The applicant admitted before ORG that before leaving GPE he had packed his luggage himself and secured it with adhesive tape . He had handed it to a luggage porter who had checked it in for him . The cocaine had been put into his luggage by persons unknown to him after the luggage had been checked in . The large sum of money was intended to set up a business in GPE .","The defence asked for the adhesive tape with which the cocaine had been packed to be examined for fingerprints , arguing that the absence of the applicant \u2019s fingerprints would prove that the applicant had not handled the cocaine . This request could not be acceded to as the tape had been destroyed after the applicant had relinquished title to it . The defence then suggested that the prosecution be declared inadmissible on this ground . The defence further stated that persons unknown to the applicant had placed the cocaine in his luggage . It was suggested that this might conceivably have been the work of the NORP secret service , and a ORG liaison officer should be detailed to make examinations in LOC .","In its judgment , which was delivered on DATE , ORG held that it had normally to be assumed that a person who packed his own luggage was aware of its contents ; although admittedly in certain circumstances this might not be so there was nothing to suggest in the present case that such circumstances were present . As to the adhesive tape , even if the absence of the applicant \u2019s fingerprints could be established that would not affect ORG finding that the applicant must have known that his luggage contained cocaine . As to the possibility that the applicant had been framed by the NORP secret service , ORG found that the applicant \u2019s statements were \u201c merely of a general nature \u201d , had not been \u201c specified ( geconcretiseerd ) in any way \u201d and had \u201c in no way been related to his person \u201d , so that it was unnecessary to order an investigation by a ORG liaison officer . Further being of the opinion that the applicant had misused a diplomatic passport in the hope of avoiding luggage checks and that his explanation for the size of the sum of money was not substantiated , ORG went on to find him guilty of having intentionally imported cocaine and sentenced him to inter alia DATE imprisonment .","The applicant lodged an appeal on points of law to ORG ( PERSON ) . His counsel submitted CARDINAL points of appeal .","On DATE ORG gave judgment dismissing the applicant \u2019s appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83992","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":2007,"docname":"CASE OF EMONET AND OTHERS v. SWITZERLAND","importance":2,"conclusion":"Preliminary objections dismissed (ratione materiae, non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award (global)","judges":"Christos Rozakis","text":["The applicants were born in DATE , DATE and DATE respectively and live in GPE .","In DATE Mariannick Faucherre ( the second applicant ) and her husband had a daughter , PERSON ( the first applicant ) . The couple divorced in DATE and the second applicant 's former husband died in DATE .","Since DATE Mariannick PERSON has been living with PERSON ( the third applicant ) , who is divorced and has no children . The CARDINAL applicants lived together DATE , when the first applicant left to live with the man she had married . The couple divorced in DATE .","In DATE a serious illness left the first applicant paraplegic . She kept her own home , but needed to be cared for by her mother and the third applicant , whom she regarded as her father . By agreement between the CARDINAL applicants , it was therefore decided that the third applicant should adopt the first applicant so that they could become a real family in the eyes of the law .","On DATE the third applicant filed an adoption request with ORG , enclosing CARDINAL letters attesting to the other CARDINAL applicants ' agreement .","On DATE ORG pronounced the adoption .","On DATE the cantonal civil status authorities informed the second applicant that the adoption had the effect of terminating her legal parent - child relationship with the first applicant and that the latter would take on her adoptive father 's surname , as she was henceforth his daughter . The first CARDINAL applicants objected to the termination of the mother - daughter relationship between them and requested that it be restored .","In a letter of DATE the cantonal civil status authorities announced that they were standing by their decision , which was based on LAW ( see \u201c Relevant domestic and international law \u201d , paragraph CARDINAL below ) . Under the provisions of that Article previously existing parent - child relationships were severed on adoption , save in respect of the spouse of the adoptive parent . PERSON and PERSON , however , were simply cohabiting .","On DATE the President of ORG , ORG formally rejected the request for restoration of the mother - daughter relationship . The applicants applied to the administrative court seeking to have that decision quashed and requesting a declaration that the adoption had not severed the mother - child relationship and that the adopted child could keep her name . On DATE the applicants instituted parallel proceedings in ORG to have the adoption order set aside . The court suspended the proceedings pending the outcome of the present application .","On DATE the administrative court partly allowed the application , setting aside the decisions of DATE and DATE in so far as they severed the mother - daughter relationship , and ordering the cantonal civil status authorities to restore that relationship .","On DATE ORG , having been informed of that decision , referred the matter to ORG .","On DATE ORG allowed the appeal and invited the cantonal civil status authorities to record the adoption in the civil status register . In its judgment ORG considered whether there was an omission in LAW with regard to the adoption by a cohabitant of his or her partner 's child . It pointed out that the adoption of the spouse 's child , whether considered as a form of joint adoption or as adoption by a single person , created a legal parent - child relationship between the child and the adoptive parent without severing the existing relationship between the child and its parent . It also pointed out that adoption should be in the interest of the child , so that joint adoption should be the rule and adoption by a single person the exception . ORG noted that adoption by a single person was not subject to any condition other than that of the child 's welfare . It concluded that adoption could satisfy that condition only if the link between the partners was strong and lasting , which in principle excluded cohabiting partners , between whom relationships were less stable than between married couples . That was also the reasoning behind the adoption of section CARDINAL , paragraph CARDINAL , of ORG of DATE , which entered into force on DATE and restricted sperm donation to married couples only . ORG reiterated in this connection that ORG had explicitly stated that the requirements in respect of sperm donation could not be less strict than those concerning joint adoption , a possibility which was open only to married couples , that a stable and lasting relationship between the parents was essential to the child 's healthy development , and that common - law partnerships were generally less solid than marriages and , unlike marriage , did not guarantee durability and could therefore not be compared with marriage . ORG thus held that Article CARDINAL a ) \u00a7 CARDINAL of LAW could not be applied by analogy , and that there was no omission in the law that needed to be remedied . That court considered that the situation was that provided for in LAW \u00a7 CARDINAL of LAW ( see \u201c Relevant domestic and international law \u201d , paragraph CARDINAL below ) . Concerning the Convention , ORG considered that Article CARDINAL did not embody the right to demand a form of adoption that was not provided for by law . Furthermore , the very essence of adoption being the forging of new family ties , prohibiting the accumulation of parent - child relationships was not at variance with LAW . As to LAW , ORG repeated that it referred only to marriage and did not confer a right to adopt . ORG also considered the complaint concerning the applicants ' unwillingness to accept the legal consequences of the adoption , and found that they could bring proceedings to have the adoption annulled for lack of consent . The judgment was served on the applicants on DATE .","The relevant provisions of LAW are as follows :","\u201c CARDINAL . Spouses shall only adopt jointly ; joint adoption shall not be open to other persons .","NORP The spouses must have been married for DATE or be DATE .","A spouse may adopt the child of the other spouse if the spouses have been married for DATE . \u201d","\u201c CARDINAL . An unmarried person may adopt a child alone if they are DATE .","NORP ... \u201d","\u201c I. Where there are no descendants , an adult or a person who has been declared incapable may be adopted :","NORP if he or she suffers from a physical or mental disability requiring permanent care and the adoptive parents have provided such care for DATE ;","NORP ...","III . For the remainder , the provisions on the adoption of minors shall apply by analogy . \u201d","\u201c CARDINAL . The child shall acquire the legal status of a child of the adoptive parents .","NORP The existing parent - child relationships shall be severed , save in respect of the spouse of the adoptive parent .","The child may be given a new forename upon adoption . \u201d","\u201c CARDINAL . If , for no lawful reason , consent has not been sought , the persons entitled to give consent may challenge the adoption in court , provided that this would not seriously prejudice the child 's welfare .","NORP This right does not , however , concern parents who have the possibility of appealing against the decision to ORG . \u201d","Section CARDINAL of LAW of DATE , which entered into force on DATE , provides for the possibility of having ORG judgments reviewed in the event that the ORG finds a violation of the LAW .","Section CARDINAL - Violation of LAW","\u201c Revision of a ORG judgment for violation of ORG DATE ( ORG ) may be requested under the following conditions :","a. when ORG , in a final judgment , has found a violation of the ORG or its protocols ;","b. compensation can not remedy the effects of the violation ;","c. revision is necessary to remedy the effects of the violation . \u201d","The relevant provisions of LAW April CARDINAL on the adoption of children , which entered into force in GPE on DATE , read as follows :","\u201c This Convention applies only to legal adoption of a child who , at the time when the adopter applies to adopt him , has not attained DATE , is not and has not been married , and is not deemed in law to have come of age . \u201d","\u201c CARDINAL . The law shall not permit a child to be adopted except by either CARDINAL persons married to each other , whether they adopt simultaneously or successively , or by CARDINAL person .","The law shall not permit a child to be again adopted save in CARDINAL or more of the following circumstances :","a. where the child is adopted by the spouse of the adopter ;","b. where the former adopter has died ;","c. where the former adoption has been annulled ;","d. where the former adoption has come to an end . \u201d","\u201c CARDINAL . Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock .","Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother .","When the rights and obligations referred to in paragraph CARDINAL of this article are created , any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist . Nevertheless , the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate , illegitimate or adopted child .","In addition the law may preserve the obligation of the parents to maintain ( in the sense of l'obligation d'entretenir and l'obligation alimentaire ) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation .","As a general rule , means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for , or in addition to , his own .","NORP If the parent of a child born in lawful wedlock has a right to the enjoyment of that child 's property , the adopter 's right to the enjoyment of the adopted person 's property may , notwithstanding paragraph CARDINAL of this article , be restricted by law .","NORP In matters of succession , in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother , an adopted child shall , for the like purposes , be treated as if he were a child of the adopter born in lawful wedlock . \u201d","At its CARDINALth meeting , held in DATE , ORG instructed ORG Family Law to examine ORG . A working party on adoption was set up at DATE to draft a report making detailed proposals for a possible revision of that convention . In its final report ( CJFA - GTCARDINAL ( DATE ) CARDINAL ) the working party concluded that a new ( revised ) convention on the adoption of children should be elaborated as soon as possible .","On DATE , the draft revised ORG on ORG , as amended by the working party at its CARDINALth meeting , from DATE , was published . The revised version is based on the information contained in the working party 's final activity report .","The following are excerpts from the draft ( revised ) Convention and the corresponding explanatory report , as adopted by the working party at its CARDINALth meeting , from DATE , and by ORG at its CARDINALnd meeting , from DATE to DATE :","Text of the draft Convention ( revised ) :","Preamble","\u201c ...","Considering that , although the institution of the adoption of children exists in the law of all member states of ORG , there are in those countries still differing views as to the principles which should govern adoption and differences in the procedure for effecting , and the legal consequences of , adoption ;","... \u201d","LAW )","\u201c CARDINAL . This Convention applies to the adoption of a child who , at the time when the adopter applies to adopt him or her , has not attained DATE , is not and has not been married and has not reached majority .","... \u201d","Article CARDINAL ( conditions for adoption )","\u201c CARDINAL . The law shall permit a child to be adopted :","a. by CARDINAL persons of different sex who","i. are married to each other , or","ii . where such an institution exists , have entered into a registered partnership together ;","b. by CARDINAL person .","States are free to extend the scope of this Convention to same - sex couples who are married together or who have entered into a registered partnership . They are also free to extend the scope of this LAW to different - sex couples and same - sex couples who are living together in a stable relationship .","... \u201d","LAW of an adoption )","\u201c CARDINAL . Upon adoption a child shall become a full member of the family of the adopter(s ) and shall have in regard to the adopter(s ) and his , her or their family the same rights and obligations as a child of the adopter(s ) whose parentage is legally established . The adopter(s ) shall have parental responsibility for the child . The adoption shall terminate the legal relationship between the child and his or her father , mother and family of origin .","Nevertheless , the spouse or registered partner of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child , unless the law otherwise provides .","As regards the termination of the legal relationship between the child and his or her family of origin , GPE Parties may make exceptions in respect of matters such as the surname of the child and impediments to marriage or to entering into a registered partnership .","GPE Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this article .","... \u201d","Commentary on the Articles of the Convention .","Article CARDINAL ( conditions for adoption )","\u201c ...","States are also free to extend the scope of the convention to different- or same - sex couples who are living together in a stable relationship . It is up to the GPE Parties to specify the criteria for assessing the stability of such a relationship .","ORG If ORG has extended the scope of the convention its provisions have to be applied mutatis mutandis .","... \u201d","LAW of an adoption )","\u201c CARDINAL . The revised convention mainly deals with \u201c full \u201d adoption ( which is an adoption that severs all ties with the family of origin ) without preventing those states that have \u201c simple \u201d adoption ( which is an adoption that does not sever the relationship with the family of origin so that the adopted child is not entirely integrated into his or her adoptive family ) from continuing to use this form of adoption .","The main object of this article is to ensure that an adopted child is treated from every standpoint like a child of the adopter and his or her family and that , in principle , all ties with the child 's family of origin should be severed .","...","According to paragraph CARDINAL , the parent whose child is adopted by his or her spouse or registered partner retains his or her rights and obligations in respect of the child , unless the law otherwise provides .",".... \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77001","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2006,"docname":"CASE OF GHIGO v. MALTA","importance":2,"conclusion":"Violation of P1-1;Damage - question reserved;Costs and expenses award - domestic and Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE ( GPE ) .","Before DATE the applicant bought a house in GPE , which he had planned to use as a home for himself and his family . In order to purchase this building , he had incurred debts . Subsequently , in DATE he acquired by donation full ownership of another house , in GPE . The applicant alleged that he then changed his plans and wanted to sell the former house in order to pay off his debts and to move into the house in GPE with his family .","On DATE the house in GPE was seized by the ORG under a requisition order issued by ORG under LAW ( LAW of LAW ) .","On DATE the applicant was informed that possession of the house in GPE had been given to a certain Mr PERSON","In DATE the applicant introduced a judicial protest against the relevant government department . He alleged that the issuing of the requisition order and the allocation of his property to a third party was causing him hardship . In a judicial letter of CARDINAL DATE , ORG asked the applicant , in his capacity as owner of the house in GPE , to recognise Mr. PERSON as the tenant of the LOC ( section CARDINAL of LAW ) .","According to LAW , the applicant was entitled to receive a requisition rent for the use of his property . However the applicant alleged that no rent had ever been fixed or offered to him and since the date of the requisition he had received no compensation .","The applicant subsequently introduced a claim before ORG ( FAC ) . He alleged that the requisition order and the allocation of his property to a third party was in violation of LAW , as incorporated into NORP law by LAW of DATE ( LAW ) . The applicant has not produced the documents pertaining to these proceedings and has not informed the ORG about their outcome .","On DATE , while the first proceedings were still pending , the applicant introduced a second claim before ORG ( FAC ) , alleging a breach of his right to the enjoyment of his property . He requested ORG to issue the orders and directions needed to redress the violation of his fundamental rights , including , if necessary , a declaration that the relevant sections of LAW had been abrogated by LAW .","NORP In a judgment of DATE , ORG declared the applicant 's claim incompatible ratione temporis with the provisions of LAW , as the facts complained of had occurred before its entry into force on DATE . The requisition had been effected in accordance with the law which was in force at the time , and no violation of the applicant 's fundamental rights could be established .","The applicant appealed to ORG .","In a judgment of CARDINAL DATE , ORG rejected the applicant 's claim .","It considered that the situation complained of was a continuing one and the applicant was accordingly affected by it after DATE . Therefore , the facts of the case fell within the competence of the domestic courts .","As to the merits of the applicant 's claim , ORG noted that the only evidence produced by the applicant was a report of his architect , which stated that the rental value of the house was CARDINAL NORP Liras ( ORG ) ( MONEY ( ORG ) ) per year at the time of the requisition , and ORG ( approximately FAC ) per year at the date of the report ( DATE ) . However , when the defendant declared that the rental value as fixed by ORG was ORG ( approximately LAW ) per year , the applicant did not produce any new evidence in rebuttal . According to ORG , this constituted a manifest fault on the applicant 's part . Furthermore , he never initiated proceedings before ORG for the determination of a fair rent for his house .","ORG also noted that in the implementation of policies of a socio - economic nature the margin of appreciation of the ORG was very wide . It quoted the case of PERSON v. GPE ( no . ORG report of CARDINAL DATE ) and an excerpt from PERSON and PERSON book \u201c Theory and Practice of the European Convention \u201d concerning the interpretation of the notion of \u201c general interest \u201d . In the light of the above , ORG held that the applicant had proved neither the hardship he alleged nor a violation of LAW .","According to section CARDINAL of the Housing Act requisition means :","\u201c to take possession of a building or require the building to be placed at the disposal of the requisitioning authority . \u201d","Until DATE the ORG Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation . As in force at the time of the requisition of the applicant 's house , section CARDINAL(CARDINAL ) of LAW read as follows :","\u201c The Secretary , if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation , may requisition any building , and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with . \u201d","After DATE the authority to issue requisition orders was given to ORG .","A requisition order imposes on the owner of the requisitioned LOC a landlord - tenant relationship . According to section CARDINAL(CARDINAL ) of LAW , ORG may require the owner to recognise the person accommodated in his property as his tenant or sub - tenant .","The owner of the LOC may seek authorisation for non - compliance with this request in accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , which , in so far as relevant , provides :","\u201c ( CARDINAL ) Within DATE of service on him of a judicial letter under the last preceding sub - section , the requisitionee , by application to FAC in contestation of the Director , may pray for an authorisation of non - compliance with that request ...","( CARDINAL ) The court shall not grant the authorisation of non - compliance mentioned in DATE sub - section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request :","Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub - article . \u201d","According to LAW , the owner of the LOC has a right to compensation , which is calculated and payable pursuant to the criteria established in LAW , which , in so far as relevant , reads as follows :","\u201c ( CARDINAL ) Subject as hereinafter provided , the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums , that is to say-","( a ) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this LAW , under a letting granted immediately before the beginning of that period :","Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of LAW , the rent shall not exceed the fair rent as defined in LAW ;","( b ) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained ( except in so far as the damage has been made good during that period by the occupant of the requisitioned LOC or by a person acting on behalf of ORG ) , no account being taken of damage which , under the provisions of this LAW , is the responsibility of the requisitionee ;","( c ) a sum equal to the amount of expenses reasonably incurred , otherwise than on behalf of the Director , for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building ... \u201d","According to LAW , \u201c fair rent \u201d means :","\u201c i ) in respect of an old house , the rent which might reasonably be expected in respect of an old house , regard being had to the average rents prevalent on DATE , as shown on the registers of ORG in respect of comparable dwelling houses in the same or in comparable localities :","Provided that where , after DATE , structural alterations or additions in a house , whether old or new , have been carried out which , in the opinion of ORG , have enhanced the rental value of the house and in respect of which or , as the case may be , of a part of which , no compensation has been paid or is payable under the provisions of the War Damage Ordinance CARDINAL , and no amount has been paid or is payable by way of a grant by ORG of GPE , the rent shall be increased by an amount which , in the opinion of ORG , corresponds to the enhancement of the rental value and which shall in no case exceed a return of DATE a year on the capital outlay on the alterations or additions ( excluding any interest on loans or in respect of idle capital ) or , as the case may be , on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance CARDINAL , and no amount has been paid or is payable by way of grant by ORG of GPE , in every case as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG ; and","ii ) in respect of a new house , a sum equivalent to a return of CARDINAL per centum a year on the freehold value of the site and of CARDINAL per centum on the capital outlay on construction ( excluding any sum which has been paid or is payable by way of a grant by the Government of GPE and any interest on loans or in respect of idle capital ) as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG :","Provided that where a payment under LAW , is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part , for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed DATE fair rent of the former building as on CARDINALst March,CARDINAL , or CARDINAL per centum for DATE on that part of the capital outlay , whichever is the less ;","( iii ) in respect of a scheme house , an DATE sum to be determined by agreement ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4887","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1998,"docname":"MITCHELL v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant is a NORP citizen born in DATE and currently residing in GPE , GPE . In the proceedings before the ORG she is represented by PERSON of ORG , solicitors of GPE , GPE .","The facts of the case , as they have been submitted by the applicant , may be summarised as follows :","The applicant was born in GPE and has lived there all her life . The applicant met her husband , PERSON a NORP citizen , in DATE and started to cohabit shortly after DATE . On DATE , Mr PERSON had been admitted to GPE as a visitor for DATE subject to a condition prohibiting employment . Mr PERSON did not seek to regularise his stay in GPE . His status was discovered when he was acquitted on drugs charges on DATE . At this time , Mr PERSON admitted to immigration officers that he had undertaken casual labouring work and that he knew he had overstayed his leave to remain . He was served with a notice of intention to deport and detained . He was released on bail on DATE . On DATE the applicant and Mr PERSON married and on DATE their daughter was born .","Mr PERSON \u2019s appeal against the decision to deport was dismissed on DATE and he was refused leave to appeal to ORG on DATE .","In DATE the applicant \u2019s previous solicitors applied , on Mr PERSON \u2019s behalf , to ORG to grant him further leave on the basis of his marriage to the applicant or in the alternative on the basis of their cohabitation .","Immigration officers called at the applicant \u2019s home to investigate if the marriage was genuine and discovered that Mr PERSON had been arrested on DATE for drug dealing . On DATE , Mr PERSON was sentenced to DATE imprisonment for possession with intent to supply crack cocaine . In the immigration service marriage questionnaire the applicant stated that she would accompany Mr PERSON if he was deported . The applicant says that she and her daughter visited Mr PERSON every fortnight since his conviction and maintained regular phone contact . On DATE , the Secretary of ORG signed a deportation order against Mr PERSON .","In DATE , the applicant \u2019s solicitors asked ORG to revoke the deportation order and to grant PERSON leave to stay . On DATE , the Secretary of ORG refused . On DATE , the Secretary of ORG confirmed that PERSON would be deported on his release on parole on DATE .","By this time , the applicant was expecting her second child in DATE . The applicant \u2019s solicitors sought leave to apply for judicial review of the ORG decision but ORG refused on DATE .","A revised decision dated DATE from the Secretary of ORG stated :","\" insufficient evidence has been produced to substantiate the claim that a common - law relationship akin to a marriage has subsisted since DATE , or at any time prior to the initiation of deportation proceedings against Mr PERSON . ... as < the applicant > and the children of the marriage will be given the opportunity of accompanying PERSON PERSON on deportation , at public expense if necessary , the Secretary of ORG is of the view that any interference with family life would be minimal and would be justifiable when set against the need to maintain an effective immigration control . \"","ORG refused leave to apply for judicial review on DATE . Mr PERSON was deported to GPE on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22080","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2001,"docname":"STEINER v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant , PERSON , is an NORP national , born in DATE and living in GPE \/ GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG of PERSON ( ORG - katholische ORG , hereafter \u201c the NORP \u201d ) , the owner of an estate in ORG , concluded a contract with Mr PERSON , the owner of CARDINAL adjacent estates , authorising him to use its estate for the construction of a sales hall . The agreement was subject to the condition that PERSON obtained the prior permission by the PERSON company , the tenant of the Rectory \u2019s estate . PERSON transferred his entitlement as regards the sales hall to the L. company .","On DATE a donation contract of CARDINAL DATE between the L. company as donor and the applicant as recipient was deposited with ORG and subsequently entered into the land register . The purpose of this contract was to transfer to the applicant the ownership of the sales hall , including the part of the building that had been constructed on the PERSON \u2019s estate .","On DATE the Rectory brought an action against the applicant before ORG , requesting that the entry of the above donation contract into the land register be declared null and void . In an alternative claim the Rectory requested a declaratory judgment that the applicant had no property rights regarding the part of the sales hall constructed on the Rectory \u2019s estate .","On DATE the ORG refused to deal with the action for lack of competence and transferred the case to ORG . The Rectory \u2019s appeal against this decision remained unsuccessful . In DATE the court file arrived at ORG .","At the hearing of CARDINAL DATE ORG closed the proceedings and announced that the judgment would be given in writing .","By judgment of CARDINAL DATE ORG dismissed the plaintiff \u2019s main as well as its alternative claim . It found that the Rectory lacked legal interest in the matter since its own legal position was in no way affected by the registration of the donation .","On DATE ORG , upon the Rectory \u2019s appeal , partly quashed the judgment for errors of law and referred the case back to ORG .","On DATE ORG , on both parties\u2019 appeals , quashed ORG decision and referred the case back to ORG .","On DATE the H. company , the successor of the M. company as tenant of the ORG \u2019s estate , intervened in the proceedings as coplaintiff . Hearings took place on DATE , CARDINAL DATE , DATE and CARDINAL DATE . On the latter date the applicant requested the court to revoke the co - plaintiff \u2019s admission to the proceedings . On DATE ORG rejected the applicant \u2019s request . On DATE the applicant appealed against this decision . On DATE ORG dismissed the applicant \u2019s appeal .","On DATE ORG announced a hearing to be held at FAC on DATE and DATE , at which CARDINAL witnesses residing in GPE would be heard . On DATE the applicant requested the court to cancel that hearing . He referred to the imminent change of judges .","On DATE ORG , following a change of the competent judge , resumed the proceedings and heard a number of witnesses . The parties to the proceedings requested the court to hear further witnesses . Those not residing in PERSON should be heard by way of judicial assistance .","On DATE , CARDINAL DATE and DATE judicial assistance hearings were held at ORG .","Further judicial assistance hearings were held at FAC on DATE , at GPE on DATE , and at ORG on DATE .","On DATE ORG held a hearing , at which it heard witnesses proposed by the applicant , and subsequently rejected the requests to hear further witnesses as irrelevant . It announced that the written version of the judgment would be served as soon as witness PERSON had been heard by way of judicial assistance at ORG .","Witness PERSON failed to appear before ORG on DATE and DATE . He was heard on DATE .","On DATE ORG granted the Rectory \u2019s claim and ordered that the entry in the land register of the donation contract between the L. company and the applicant concerning the part of the building located on the tenant \u2019s estate of the Rectory be annulled . The court , having regard to the documentary evidence and the statements of the witnesses heard , found that in the absence of an agreement by the tenant of the Rectory \u2019s estate ( the LOC company ) , the authorisation by the Rectory of DATE was not valid . LAW and his successors could not lawfully acquire any ownership rights regarding the part of the sales hall situated on the Rectory \u2019s estate .","On DATE ORG dismissed the applicant \u2019s appeal of DATE .","On DATE ORG refused to deal with the applicant \u2019s appeal on points of law . The decision was served on the applicant \u2019s counsel on DATE .","Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .","\" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert \u2019s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .","( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .","( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . \""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80958","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF NURMAGOMEDOV v. RUSSIA","importance":3,"conclusion":"No violation of Article 6 - Right to a fair trial;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Christos Rozakis","text":["The applicant was born DATE and is now serving a custodial sentence in the town of GPE in GPE .","On DATE ORG of LOC convicted the applicant of aggravated robbery ( LAW of LAW ) and the involvement of minors in criminal activities ( LAW of FAC ) . It sentenced him to DATE imprisonment in a correctional colony . On CARDINAL DATE ORG upheld the judgment on appeal .","The applicant was sent to a correctional colony to serve his sentence . On DATE the colony director granted him home leave and he travelled to his native village in GPE . He was due back at the colony on DATE .","According to the applicant , he found his wife and children in a precarious situation and decided not to return to the colony but to start working to support his family . The applicant and his family moved to the town of GPE in GPE .","On DATE the colony officials launched a criminal investigation in connection with the applicant 's failure to return from home leave . On DATE the applicant was summoned to a police station in GPE and taken into custody .","On DATE ORG of GPE convicted the applicant of evading punishment ( LAW ) and sentenced him to DATE imprisonment to run consecutively to the time left to serve under the judgment of CARDINAL DATE ( DATE and DATE in total ) .","NORP The applicant filed an application for supervisory review of the judgment of DATE . On DATE the Prosecutor General 's office refused his application but forwarded a copy of it to the PERSON prosecutor \u201c to bring the applicant 's sentence into conformity with the new Criminal Code [ of DATE ] \u201d . The PERSON prosecutor forwarded the request to the NORP prosecutor .","On an unspecified date a deputy prosecutor of GPE lodged an application \u201c for [ an order ] bringing the applicant 's sentence into conformity with LAW of the GPE \u201d .","On DATE the ORG of GPE granted the prosecutor 's motion . It established that LAW of GPE provided for a more lenient punishment for aggravated robbery than LAW . As the provisions providing for lighter sentences could be applied retrospectively to convicted prisoners , the court considered it necessary to recharacterise the offence committed by the applicant in accordance with LAW . It also deleted from the original judgment a reference to the applicant 's inebriated state at the time of the offence as the new Code no longer classified inebriated as an aggravating circumstance . However , that did not result in a reduction of the applicant 's sentence because the original sentence remained within the limits of LAW of LAW .","On DATE the colony correspondence office informed the applicant that the application by the NORP prosecutor \u201c would be heard in the ORG \u201d .","On DATE the applicant asked ORG to obtain the case file from ORG to enable him to study the file , attend the hearing , make representations and apply for legal aid . According to the stamp on the applicant 's letter , ORG received it on DATE .","On DATE the applicant received a copy of the ruling of DATE from the prosecutor 's office .","On DATE the judge of ORG who had made the ruling of DATE , advised the applicant that that court had no power to obtain case files from other courts or to review final convictions and that the applicant could seek legal aid from the local bar council .","On DATE the prosecutor of GPE lodged an application for supervisory review of the ruling of DATE on the ground that it had been made in the applicant 's absence .","On DATE the Presidium of ORG of GPE granted the prosecutor 's application . It quashed the ruling of DATE and remitted the matter to the same court .","NORP The applicant described the subsequent events as follows :","\u201c On DATE I was called to the colony headquarters where I was told , in room no . CARDINAL , that the ruling of the PERSON court of DATE would now be reviewed ... I was told right away that the new ruling would be identical to the ruling of DATE , the only difference being that it would be made in my presence . I asked to appoint prisoner PERSON as my representative but was told , ' Prisoner S. is now restricted in his movements and can not attend the court hearing ' . I asked for the refusal to be certified in writing , but this was refused . I asked those present at the ' court hearing ' to give their names , but was told , ' you will find out from the ruling ' .","I considered my further participation in this farce inappropriate and asked that my refusal to participate further in the hearing ... be entered in the record and left the room . On DATE I received the ruling of CARDINAL DATE containing the phrase , ' ... having heard the submissions by convict PERSON ... ' \u201d","On DATE ORG issued a new ruling similar to the ruling of DATE .","The applicant lodged an appeal . On DATE the judge informed him that his appeal could not be processed because of certain formal defects . The applicant did not re - submit his appeal .","According to the applicant , on DATE he submitted an application to ORG to the correspondence office of colony CARDINAL - CARDINAL\/CARDINAL ( \u0441\u043f\u0435\u0446\u0447\u0430\u0441\u0442\u044c \u0418\u041a DATE ) . DATE the application was returned to him and he was told that he had no right to petition international institutions until he had exhausted all domestic remedies .","He sent a copy of his application to the ORG through an informal channel and complained about the actions of the colony administration to a prosecutor 's office .","On DATE the Ust - Vymskiy prosecutor in charge of compliance with laws in correctional colonies ( \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440 \u043f\u043e \u043d\u0430\u0434\u0437\u043e\u0440\u0443 \u0437\u0430 \u0441\u043e\u0431\u043b\u044e\u0434\u0435\u043d\u0438\u0435\u043c \u0437\u0430\u043a\u043e\u043d\u043e\u0432 \u0432 \u0418\u0423 ) confirmed the lawfulness of the actions of the colony administration , finding as follows :","\u201c An application to [ i]nternational institutions is only possible after the issue has been resolved ( or has not proved possible to resolve ) within the country because otherwise the complaint or application would immediately be returned for resolution in the country ... This procedure also applies to convicted prisoners ...","Therefore the actions of the administration of correctional colony no . CARDINAL declining to send your application to ORG were lawful ... \u201d","The applicant further submitted that the first package sent by ORG on DATE had not been given to him until DATE . The envelope had been removed to make verification of the date of receipt impossible .","On DATE the acting deputy colony director approved the findings of an internal inquiry that had been carried out by the deputy colony director in charge of prisoners ' human rights into the circumstances surrounding the applicant 's request to dispatch his application to ORG . According to the inquiry 's findings , in DATE the applicant had asked a senior inspector of the special registration group about the procedure for lodging applications with ORG . The inspector had advised him to apply first to the competent domestic authorities . The applicant had made no further demands to the colony administration concerning his application and had sent it to the ORG through informal channels , in breach of the internal regulations . The human - rights deputy director proposed to consider it established that the alleged hindrance had not taken place .","On DATE the acting deputy director issued order no . CARDINAL-A on behalf of the PERSON directorate of correctional facilities ( PERSON \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u043b\u0435\u0441\u043d\u044b\u0445 \u0438\u0441\u043f\u0440\u0430\u0432\u0438\u0442\u0435\u043b\u044c\u043d\u044b\u0445 \u0443\u0447\u0440\u0435\u0436\u0434\u0435\u043d\u0438\u0439 ) for the attention of the human - rights deputy director and the directors of other correctional colonies in the region . The introductory part of the order related the exchange that had taken place between the applicant and the colony inspector . The human - rights deputy director was ordered to provide each colony with a set of educational materials on the procedures for applying to , inter alia , ORG and ORG and to prepare test questions on human rights for colony officials . The colony directors were instructed to study the educational materials and to ensure compliance with the order of ORG of DATE prohibiting all hindrances to the communication between convicted prisoners and the ORG .","On DATE the deputy Minister of Justice \u2013 the authority in charge of the penitentiary system \u2013 sent a circular to the heads of regional departments of the Chief Penitentiary Directorate , reminding them that the decision as to whether domestic remedies had been exhausted was made by ORG itself and that the administration of a penal institution was not competent to determine this issue and were not to prevent prisoners from lodging applications with international human rights ' organisations . The deputy minister called for rigorous compliance with the ORG 's obligations under LAW .","Pursuant to LAW ( in force until DATE ) , aggravated robbery was punishable by DATE imprisonment and the confiscation of property . Article CARDINAL provided that involving minors in criminal activities , loitering or prostitution was punishable by DATE imprisonment .","Article CARDINAL \u00a7 CARDINAL of LAW of GPE ( in force since DATE ) provides that involving a minor in the commission of a criminal offence through promises , deception , threats or otherwise is punishable by DATE imprisonment . Article CARDINAL \u00a7 CARDINAL provides that aggravated robbery is punishable by DATE imprisonment and the confiscation of property .","Article CARDINAL of LAW ( \u201c Retrospective effect of criminal law \u201d ) provides that where a new criminal law decriminalises an offence , provides for more lenient punishment or otherwise improves the situation of the offender it shall apply with retrospective effect to offences committed before it came into force , even where the offender is already serving sentence . If the new law provides for a shorter sentence , then the offender 's sentence must be reduced accordingly . Laws providing for a heavier sentence or otherwise aggravating the situation of the offender have no retrospective effect .","Section CARDINAL of LAW ( Entry into LAW ( no . CARDINAL-FZ of DATE ) provided as follows :","\u201c Where a convicted prisoner who was sentenced under LAW has not yet served his sentence , the sentence shall be brought into conformity with LAW of GPE if the sentence imposed by the court was more severe than the maximum sentence laid down by the relevant provision of LAW of GPE .","If the criminal law otherwise improves the situation of offenders or convicted prisoners ... , convictions and judicial acts concerning other criminal - law measures must be reviewed by the convicting court or the court with jurisdiction for the locality where the sentence is being served .","Relief from punishment , a reduction in sentence or any other improvement in the situation of the offender ... shall be decided upon in accordance with Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure . \u201d","Article CARDINAL in LAW ( \u201c Execution of Sentences \u201d ) of LAW ( in force until DATE ) provided that a court , acting on an application by a convict or prosecutor in connection with the enactment of a law with retrospective effect , could exempt the convicted prisoner from serving the sentence , reduce his sentence or otherwise improve his situation . In such proceedings the court was required to base its ruling ( \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 ) solely on the circumstances that were established in the final conviction and could not overrule the interpretation of the criminal law by the convicting court .","Article CARDINAL determined the territorial jurisdiction of the courts . Article CARDINAL provided that these issues were to be decided at a hearing . \u201c As a rule \u201d , the convict was to be summoned to the hearing .","Article CARDINAL \u00a7 CARDINAL in LAW ( \u201c Proceedings for Examination and Determination of Issues Relating to the Execution of Sentences \u201d ) of LAW of GPE of DATE ( in force since DATE ) provides that decisions on a reduction of sentence following the enactment of a law with retrospective effect shall be made in accordance with LAW .","As worded at the material time , LAW and paragraph CARDINAL of LAW ( Order no . CARDINAL of ORG of DATE ) provided that all incoming and outgoing correspondence of detainees , other than correspondence with courts , prosecutors , penitentiary officials , the ORG and counsel , was subject to censorship by the colony officials . Letters were to be put in mailboxes or given to the officials in an unsealed envelope . LAW required detainees to submit all complaints through the colony officials .","By Order no . CARDINAL of DATE , ORG approved the Directive on the Functioning of Special Departments in Correctional Colonies . Paragraph CARDINAL.CARDINAL established that complaints addressed to authorities , organisations or officials who were not competent to deal with the matter concerned should not be forwarded to the addressees . The complainant was to be informed of that decision in writing and advised where to send his complaint . If the complainant disagreed with the decision not to forward his complaint , he could contest it by applying to the supervising prosecutor ."],"violated_articles":["34"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79769","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2007,"docname":"CASE OF V.A.M. v. SERBIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["In DATE the applicant married PERSON and in DATE their daughter PERSON was born .","In DATE the applicant started having marital problems , apparently as a result of her contracting HIV .","On DATE PERSON left GPE , a part of GPE where she lived with her parents , to stay with her grandparents for a while .","NORP In DATE , ORG brought PERSON back to GPE .","Shortly afterwards , however , the applicant 's marriage broke down and ORG ceased living with the applicant . He also took PERSON to his parents ' flat , denying the applicant any contact with her .","On DATE the applicant filed a claim with ORG in GPE ( \u201c PERSON op\u0161tinski sud u ORG \u201d ) , seeking dissolution of the marriage , sole custody of PERSON and child maintenance . In addition , she requested interim relief , granting her temporary custody or , in the alternative , regular DATE contacts with PERSON until the conclusion of the civil proceedings .","On DATE ORG in GPE ( hereinafter \u201c the ORG \u201d ) ordered ORG ( \u201c NORP za socijalni rad op\u0161tine ORG Grad \u201d ) to produce an expert opinion as to which party should be granted custody .","PERSON ( hereinafter \u201c the respondent \u201d ) appears to have been informed about the applicant 's lawsuit during CARDINAL of the meetings held at ORG in DATE .","Following the institution of proceedings , ORG adjourned CARDINAL separate hearings , including the hearings scheduled for CARDINAL DATE , DATE and DATE , respectively .","NORP Throughout this time , though mostly in response to the applicant 's numerous proposals , ORG attempted to obtain information as regards the respondent 's correct address from various ORG bodies , including the tax authorities , municipalities , ORG and even ORG .","Summonses were sent to a number of addresses but each time the respondent could not be served , which led ORG to conclude , on DATE , that he was \u201c clearly avoiding receipt \u201d of all court documents .","On DATE the respondent was duly served for the first time , the summons having been sent to GPE , GPE , on which occasion he was both provided with the applicant 's claim against him and informed about the next hearing scheduled for DATE .","On DATE the applicant 's lawyer informed ORG that she could not attend that hearing .","The applicant maintained that during the proceedings in question the presiding judge had stated publicly that she would either rule in favour of the respondent or dismiss the applicant 's claim on procedural grounds . The Government contested this submission .","In DATE , the presiding judge was replaced by another and the case itself taken under review by ORG .","On DATE , inter alia , the applicant complained to the President of ORG , requesting that the presiding judge in her case be removed .","She claimed that the judge in question had tried to serve the respondent via regular mail only but had failed to attempt to do so through the bailiffs , as envisaged by LAW ( see paragraph CARDINAL below ) .","Further , despite the fact that it was up to the courts to establish the respondent 's correct address , she pointed out that on DATE the judge had ordered her specifically to provide the court with the address in question , in default of which her claim would be dismissed .","Finally , the applicant alleged that the judge herself had indicated that she did not know what to do with the case and that the best solution would have been for the applicant to withdraw her claim . The Government contested this submission .","On DATE the applicant 's motion was rejected by the President of ORG .","On DATE ORG ordered the respondent to facilitate the applicant 's access to PERSON , twice a month , until the adoption of a final decision on the merits of the case .","On DATE the applicant filed a submission with ORG , stating that the respondent had refused receipt of the said decision and requesting that he be served formally in accordance with the relevant provisions of LAW ( see paragraph CARDINAL below ) .","On DATE and DATE , respectively , the applicant sent CARDINAL separate requests to ORG , seeking effective enforcement of the interim access order .","On DATE the applicant 's lawyer withdrew her request of CARDINAL DATE .","On DATE the bailiffs attempted to enforce the said interim access order but , apparently , there was no one to be found at the respondent 's address . This enforcement would appear to have been envisaged by means of a seizure of the respondent 's movable assets and their subsequent sale , the proceeds of which would then have been used to cover the fine apparently imposed on the respondent for his failure to comply with the order in question ( see paragraph CARDINAL below ) .","On DATE the applicant filed another complaint with ORG , seeking effective enforcement .","From DATE until DATE the bailiffs tried again , on a number of occasions and at several different addresses , but to no avail .","On DATE the applicant was ordered by ORG to provide the respondent 's correct address .","On DATE a medical clinic ( \u201c ORG \u201d ) attested that the applicant was HIV positive but that she was being treated and was feeling well . The clinic added that there was no reason why she should not be allowed to see PERSON","On DATE , DATE and CARDINAL DATE , respectively , medical opinions to the same effect were again issued by the said clinic , as well as CARDINAL other medical institutions ( \u201c ORG poliklinika za gra\u0111anska lica \u201d and \u201c NORP za infektivne i tropske bolesti \u201d ) .","The opinion of CARDINAL DATE was addressed expressly to \u201c the competent ORG \u201d .","The applicant stated that she had frequently seen the respondent in the streets of GPE throughout the period in question and pointed out that he had also appeared in a television programme on several separate occasions .","The applicant further noted that she was informed by ORG that the respondent had publicly stated that he did not want to be bothered by any legal proceedings and , in addition , that he had told PERSON that her mother , the applicant , had died .","It would appear that ORG held a hearing on DATE and that it did so in the respondent 's absence given that he had been duly served at CARDINAL of his addresses in GPE .","On DATE ORG informed ORG that the respondent could not be found at his address in GPE but that his neighbours had said that he had moved back to GPE .","At the hearing held on DATE , the applicant informed ORG that the respondent had re - registered his former company and that its seat was now in GPE . She then went on to provide the court with this address , as well as the current address of the respondent 's parents , and stated that PERSON was in fourth grade in CARDINAL of the primary schools in GPE .","On DATE ORG sent a letter to ORG ( \u201c LOC privredne registre \u201d ) and the tax authorities , seeking information about the respondent 's income and his tax situation , as well as whether the respondent was the owner , founder , manager or deputy manager of the said company .","On DATE ORG was informed that the respondent was indeed the manager of the company in question .","The next hearing was scheduled for DATE and the court summonses in this respect were sent both to the respondent 's address in GPE and to his address in GPE , via the GPE and GPE police departments , respectively .","On DATE , CARDINAL DATE and DATE , ORG urged the competent ORG to \u201c finalise \u201d its report and submit a proposal as to who should get custody of PERSON","ORG thereafter obtained the medical reports concerning the applicant 's health of DATE and CARDINAL DATE , respectively ( see paragraph CARDINAL above ) , as well as a new report produced by the Infectious and ORG ( \u201c NORP za infektivne i tropske bolesti \u201d ) - Centre for HIV \/ AIDS of DATE , stating that there was no medical reason why the applicant should not be granted custody of PERSON","On DATE ORG heard the applicant and ordered ORG to produce its report as to who should be given custody of PERSON","On DATE ORG heard both the applicant and the respondent , on which occasion the latter , inter alia , stated that the former had not been honest about her medical situation , or conscientious in terms of taking medication , which seriously endangered his own life as well as that of PERSON The respondent thus proposed that the applicant 's health be reassessed and ORG , having so ordered , scheduled the next hearing for DATE .","On DATE ORG adjourned the hearing , stating that the case file was still with ORG which was about to rule in respect of the respondent 's appeal filed against the interim custody order issued on DATE ( see paragraphs CARDINAL and CARDINAL below ) .","ORG scheduled the next hearing for DATE .","On DATE ORG granted provisional custody of PERSON to the applicant and ordered the respondent to surrender the child , pending a final decision in the ongoing civil suit . In its reasoning , inter alia , it found that : i ) the respondent had made it clear , from the outset , that he would \u201c not allow \u201d the applicant to have contact with PERSON because of his fear that she might also be \u201c infected \u201d with HIV ; ii ) the applicant was , despite the respondent 's claims to the contrary , a responsible and motivated parent whose medical condition was stable , constantly under review , and who presented no danger to PERSON ; and iii ) the respondent had not only failed to comply with his obligation to inform the court of his correct address but had in addition , for DATE , deliberately avoided receipt of court summonses which , in turn , had resulted in the applicant being denied all contact with PERSON and indicated a gross disregard for the interests of PERSON on his part . Finally , the execution of this order was not to be deferred pending any appeal filed against it .","On DATE the applicant requested enforcement of the above order and again provided ORG with the respondent 's various addresses .","On DATE the respondent filed an appeal .","On DATE the applicant complained to the President of ORG , seeking speedy enforcement .","On DATE ORG accepted the respondent 's appeal , quashed the impugned order and instructed ORG to re - examine the issue of the applicant 's interim custody .","In DATE the applicant filed a separate civil claim against the respondent , seeking the removal of his parental rights . These proceeding were also brought before ORG and were at the time of adoption of this judgment apparently still ongoing .","Articles CARDINALb , CARDINAL and CARDINAL provided that all maintenance - related suits and child custody enforcement proceedings were to be dealt with by the courts urgently .","Under LAW all family - related disputes involving children must be resolved urgently . The first hearing must be scheduled within DATE of the date when the claim is filed . First instance courts should conclude the proceedings following CARDINAL hearings , and second instance courts must decide on appeal within DATE .","Similarly , LAW defines all maintenance suits as \u201c particularly urgent \u201d . The first hearing must be scheduled within DATE of the date when the claim is filed and second instance courts must decide on appeal within DATE .","This Act entered into force on DATE and thereby repealed ORG referred to above .","The relevant provisions of this Act provided as follows :","\u201c The court shall appoint a temporary representative to [ act on behalf of ] the respondent if it finds , in the course of the proceedings before the court of first instance , that the regular procedure for appointment of ... [ such a representative ] ... could last too long , resulting in harmful consequences for CARDINAL or both parties .","Under the conditions set forth in LAW , the court shall appoint a temporary representative ...","CARDINAL ) when the place of residence of the respondent is unknown and the respondent has no counsel ... \u201d","\u201c Written pleadings ... [ including initial claims aimed at the institution of court proceedings ] ... must state ... the name , occupation and the permanent or current address of the parties ... \u201d","\u201c ... [ C]ourt documents shall primarily be delivered through regular post but may also be delivered by a designated court employee [ \u201c the bailiff \u201d ] ... or directly in court . \u201d","\u201c If the person to whom a court document is to be delivered does not happen to be [ at home ] , the delivery shall be accomplished by serving the court documents on an adult member of his [ or her ] household who must receive them . If such persons also happen not to be [ at home ] , the ... [ court documents shall be served on ] ... the building manager or neighbour , if they agree .","If the delivery is to be performed at the office of a person who does not happen to be there , it may be accomplished by serving the court documents on a person working in the same office , if that person so agrees . \u201d","\u201c A complaint ... [ as well as ] ... a court decision against which a separate appeal may be filed shall be delivered to ... [ the respondent ] ... in person ...","If a person who is to be served ... does not happen to be at the place where the delivery is to be performed , the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in LAW , paragraphs CARDINAL and CARDINAL of this LAW , requesting that he [ or she ] be present on a certain day and hour in his [ or her ] flat or office . If the bailiff does not find the person to be served even after this , he [ or she ] shall proceed in accordance with the provisions of LAW and the delivery shall thus be considered as having been carried out . \u201d","\u201c If the person to be served , an adult member of the household , ... or an employee of a ORG body or a legal entity refuses to receive the court documents without legal reason , the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question . The bailiff shall make a note on the delivery slip concerning DATE , hour and reason for refusal of reception , as well as the place where he or she left the court documents , and thus the service shall be considered accomplished . \u201d","\u201c When a party ... changes its place of residence or moves to another flat ... [ prior to the adoption of the final decision in the proceedings ] ... [ it ] ... shall immediately inform the court thereof .","If ... [ it ] ... fails to do so and the bailiff is unable to establish ... [ its ] ... new flat or place of residence , the court shall order that all further deliveries in respect of this party be posted on the court 's own notice board .","DATE ... [ thereafter ] ... the delivery at issue shall be deemed duly accomplished . \u201d","\u201c The court shall invite a party ... who ... [ is ] ... abroad and does not have a representative in ... [ GPE ] ... to ... authorise ... [ another person ] ... to receive all ... [ NORP court - related correspondence ] ... If the party ... fails to do so , the court shall appoint ... [ such a person ] ... on a temporary basis ... and at the party 's own expense ... \u201d","\u201c If a party is unable to establish the address of a person to whom the delivery is to be made , the court shall attempt to obtain relevant information from ... [ other ORG bodies ] ... or in some other way . \u201d","The substance of Articles CARDINAL \u00a7 CARDINAL ( CARDINAL ) , CARDINAL \u00a7 CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of this Act corresponds , in the relevant part , to that of the provisions of LAW quoted above .","In addition , Article CARDINAL provides that , should \u201c normal \u201d delivery during the course of the proceedings prove to be unsuccessful , all court documents shall be posted on the court 's own notice board and that DATE thereafter the delivery at issue shall be deemed duly accomplished .","Finally , under LAW and CARDINAL , parties may file an appeal on points of law ( \u201c revizija \u201d ) with ORG . They may do so under certain very specific conditions only and against a final judgment rendered at second instance .","This Act entered into force on DATE , thereby repealing LAW referred to above .","Article CARDINAL of LAW of DATE ( Zakon o izvr\u0161nom postupku ; published in ORG FRY nos . CARDINAL , CARDINAL ) , while placing special emphasis on the best interests of the child , states that there shall be an initial period of DATE for voluntary compliance with a child custody order . Beyond that , however , fines shall be imposed and , ultimately , if necessary , the child taken forcibly , in co - operation with ORG . Finally , LAW , only the enforcement order and the court 's decision in respect of any complaints filed against this order shall be served in accordance with the relevant civil procedure rules . In all other instances the court 's own notice board shall be made use of for this purpose .","LAW of CARDINAL ( Zakon o izvr\u0161nom postupku ; published ORG no . CARDINAL ) entered into force on DATE , thereby repealing LAW of DATE . In accordance with LAW , however , all enforcement proceedings instituted prior to DATE are to be concluded pursuant to LAW of DATE .","The relevant provisions of this LAW read as follows :","\u201c A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed , improper , or that there has been an [ untoward ] influence on their course and outcome . \u201d","\u201c The President of a higher instance court shall have the right to monitor the court administration of a lower instance court , and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court , if the latter omits to perform his duty .","The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation , information concerning any problems about trials and all information regarding the work of the court .","The President of a higher instance court may order a direct inspection of the work of a lower instance court . \u201d","\u201c When a party to a case or another person taking part in the proceedings files a complaint , the President of the court must , having considered it , inform the complainant about his views concerning its merits as well as any measures taken in this respect , within DATE of receipt of the complaint .","If a complaint was filed through ORG or through a higher instance court , the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect . \u201d","DATE . Under LAW , inter alia , the President of a court must ensure that the court 's work is carried out in a timely manner . He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within DATE , giving his or her decision and , if necessary , ordering that steps be taken to remedy the situation .","DATE , inter alia , provides that ORG shall supervise the work of the courts in terms of their timeliness . Should certain problems be identified , the Ministry shall \u201c propose \u201d specific measures to be undertaken within DATE .","The relevant provisions of this LAW read as follows :","\u201c ORG shall set up a ORG [ \u201c PERSON odbor \u201d ] ( \u201c the Board \u201d ) .","ORG shall be composed of CARDINAL ORG judges elected for DATE by the plenary session of ORG . \u201d","\u201c In response to a complaint or ex officio , ORG is authorised to oversee judicial proceedings and look into the conduct of individual cases .","Following the conclusion of this process , the ORG may initiate , before ORG , proceedings for the removal of a judge based on his unconscientious or unprofessional conduct , or propose the imposition of other disciplinary measures . \u201d","Article CARDINAL \u00a7 CARDINAL provides that a legal entity ( \u201c pravno lice \u201d ) , which includes the ORG , is liable for any damage caused by CARDINAL of \u201c its bodies \u201d ( \u201c njegov organ \u201d ) to a \u201c third person \u201d .","Under ORG CARDINAL and CARDINAL of LAW , inter alia , anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of \u201c personal rights \u201d ( \u201c prava li\u010dnosti \u201d ) may , depending on their duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress \u201c which may be capable \u201d of affording adequate non - pecuniary satisfaction .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that \u201c whoever \u201d by means of \u201c deceit \u201d removes or holds another with the intent to ... coerce \u201d him or her , or another person , to \u201c endure something \u201d shall be sentenced to a prison term of DATE .","Under LAW anyone who , inter alia , obstructs the enforcement of a child custody decision shall be fined or sentenced to a prison term not exceeding DATE .","Article CARDINAL states that \u201c an official or another ' person in charge ' who refuses to enforce a final court decision , or does not enforce it within the period prescribed by law or a period set forth in the decision itself , shall be fined or sentenced to a prison term not exceeding two years \u201d .","DATE . The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL , DATE ) ."],"violated_articles":["13","6","8"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23290","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2003,"docname":"REILLY v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress;Mark Villiger;Nicolas Bratza","text":["The applicant , Mr PERSON , is a GPE national , born in DATE , and he is currently in prison in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was convicted on CARDINAL counts of robbery , CARDINAL of attempted robbery , CARDINAL of carrying an imitation firearm and CARDINAL of using a firearm to resist arrest . He was sentenced to CARDINAL concurrent sentences amounting to DATE imprisonment .","On DATE he was convicted of CARDINAL charges of robbery and CARDINAL of carrying imitation firearms . He received a life sentence pursuant to section CARDINAL of LAW DATE and his tariff was fixed at DATE . In sentencing , the judge stated that DATE would have been the appropriate determinate sentence in his case and referred to the terror experienced by the victims of the robberies and the long - term traumatic effects .","The applicant did not seek leave to appeal against sentence . His application for permission to appeal against conviction was refused by ORG on DATE .","The DATE Act came into force on DATE . Section CARDINAL(CARDINAL ) and ( CARDINAL ) provide as follows :","\u201c ( CARDINAL ) This section applies where -","( a ) a person is convicted of a serious offence committed after the commencement of this section ; and","( b ) at the time when that offence was committed , he was DATE or over and had been convicted in any part of GPE of another serious offence .","( CARDINAL ) The court shall impose a life sentence , that is to say -","( a ) where the person is ORG over , a sentence of imprisonment for life ; ( b ) where he is DATE , a sentence of custody for life under section CARDINAL(CARDINAL ) of LAW DATE ,","unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so .","( CARDINAL ) Where the court does not impose a life sentence , it shall state in open court that it is of that opinion and what the exceptional circumstances are . \u201d","Section CARDINAL(CARDINAL ) listed the offences considered \u201c serious \u201d for the purposes of the section . The offences listed in section CARDINAL(CARDINAL ) were already punishable by a maximum of life imprisonment and they include rape .","In this case , decided after the entry into force of LAW DATE , ORG adopted a more flexible interpretation of the words \u201c exceptional circumstances \u201d in section DATE CARDINAL Act .","The appellants contended that section CARDINAL was incompatible with , inter alia , Articles CARDINAL and CARDINAL of the Convention . ORG agreed that the manner of interpreting section DATE meant that that section could clearly operate in a disproportionate manner , it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence .","Noting that in the earlier case of PERSON [ DATE ] CARDINAL WLR CARDINAL an appeal had already been allowed where on the evidence it could not be concluded that the defendant did not present a serious and continuing danger to the public such as could justify the imposition of a life sentence , it considered that the problem would disappear if the words \u201c exceptional circumstances \u201d in CARDINAL were construed in a manner which accorded with the policy of ORG in adopting the section . That policy was to protect the public . Accordingly , a finding that an offender does not constitute a significant risk to the public should be considered to constitute \u201c exceptional circumstances \u201d which approach , ORG considered , would accord with parliamentary intent and with the provisions of the Convention ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72636","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF DEVR\u0130M TURAN v. TURKEY","importance":2,"conclusion":"No violation of Art. 3;Violation of Art. 13;Remainder inadmissible (other aspect of the Art. 3 complaint);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant was born in DATE and is currently detained in FAC","On DATE at TIME the applicant , who was working for a newspaper called GPE , was taken into police custody in the district of ORG in the province of GPE by police officers on suspicion of membership of an illegal organisation , namely ORG ) . At TIME she was taken to ORG , where a medical report was issued . In the report , the presence of a CARDINAL x QUANTITY . abrasion under the right eye was noted . It was stated that this abrasion had probably been caused as a result of an irritation . The medical report further indicated that there were no signs of ill - treatment on her body .","On DATE , the applicant was transferred to the province of GPE to be interrogated by LAW of ORG . Before being taken to ORG , at TIME the applicant was sent to ORG for a medical examination . The medical report indicated the presence of a hyperaemia under the right eye and an abrasion on the right side of the nose . Thereafter at TIME the applicant was taken to ORG for a gynaecological examination with a request to establish her virginity status . As she did not give her consent , the applicant did not undergo a gynaecological examination . At TIME the applicant was taken once again to ORG , this time for a rectal examination . As the applicant refused to be examined , no rectal examination was performed .","On DATE before being released from custody , the applicant was taken to ORG for a gynaecological and rectal examination . As she did not give her consent , the doctors did not perform the examinations . Subsequently , she was taken to ORG , where she was examined by a doctor . According to the doctor \u2019s report , no signs of ill - treatment were observed on the applicant \u2019s body .","On DATE the applicant was brought before the GPE public prosecutor . Before the public prosecutor , she denied the allegations against her and maintained that her police statement , dated DATE , had been taken under duress . She stated that she had been hosed with cold water , subjected to electric shocks and NORP hanging .","DATE the applicant was further brought before the investigating judge at FAC where she repeated her statement taken by the prosecutor . The investigating judge decided to place her in detention on remand on account of the evidence in the file and the nature of the offences against her .","On DATE the GPE public prosecutor declined jurisdiction and transferred the case to the public prosecutor at ORG .","In an indictment dated DATE , ORG initiated criminal proceedings against the applicant and accused her of being a member of an illegal organisation .","On DATE the applicant sent a letter to the court and retracted her statement made to the police , alleging that it was taken under duress . In this letter , she explained in detail the various forms of ill - treatments she had been allegedly subjected to in custody . In particular , she maintained that during her police custody she had been stripped naked , threatened with rape , beaten , hosed with cold water , subjected to electric shocks and hung from her arms .","On DATE ORG found that the applicant had been continuously working for the said illegal organisation . It therefore found the applicant guilty as charged under LAW and sentenced her to DATE months\u2019 imprisonment .","On DATE the applicant submitted her appeal petition to ORG . While challenging the decision of the first - instance court , she particularly referred to her ill - treatment under custody . She also stated that she had been taken to the hospital on CARDINAL occasions during her police custody to undergo a gynaecological examination . She alleged that this treatment constituted degrading treatment .","On DATE ORG , upholding ORG reasoning and assessment of evidence , rejected the applicant \u2019s appeal ."],"violated_articles":["13"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60876","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2003,"docname":"CASE OF L. AND V. v. AUSTRIA","importance":1,"conclusion":"Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE ORG ( PERSON f\u00fcr PERSON ) convicted the first applicant under LAW ) of homosexual acts with adolescents and sentenced him to DATE imprisonment suspended on probation for DATE . Relying mainly on the first applicant 's diary , in which he had made entries about his sexual encounters , the court found it established that DATE the first applicant had had , in GPE and in a number of other countries , homosexual relations either by way of oral sex or masturbation with numerous persons DATE , whose identity could not be established .","On DATE ORG ( Oberster Gerichtshof ) , upon the first applicant 's plea of nullity , quashed the judgment regarding the offences committed abroad .","NORP On DATE ORG resumed the proceedings , which had been discontinued as far as the offences committed abroad were concerned , and found the first applicant guilty under LAW of the offences committed in GPE , sentencing him to DATE imprisonment suspended on probation for a period of DATE .","On DATE ORG dismissed the first applicant 's plea of nullity in which he had complained that the application of LAW of LAW violated his right to respect for his private life and his right to non - discrimination and had suggested that ORG request ORG to review the constitutionality of that provision .","On DATE ORG ( Oberlandesgericht ) , upon the first applicant 's appeal , reduced the sentence to DATE imprisonment suspended on probation for DATE .","On DATE ORG convicted the second applicant under LAW of homosexual acts with adolescents , and on one minor count of misappropriation . It sentenced him to DATE imprisonment suspended on probation for DATE . The ORG found it established that on CARDINAL occasion the second applicant had had oral sex with a DATE .","On DATE ORG dismissed the second applicant 's appeal on points of law , in which he had complained that LAW was discriminatory and violated his right to respect for his private life and had suggested that ORG request ORG to review the constitutionality of that provision . It also dismissed his appeal against sentence . The decision was served on DATE .","Any sexual acts with persons DATE are punishable under ORG CARDINAL and CARDINAL of LAW .","Article CARDINAL of LAW , in the version in force at the material time , read as follows :","\u201c A male person who after attaining DATE fornicates with a person of the same sex who has attained the age of DATE but not the age of CARDINAL shall be sentenced to imprisonment for DATE . \u201d","This provision was aimed at consensual homosexual acts , as any sexual act of adults with persons DATE are punishable under LAW if the adult abuses a position of authority ( parent , employer , teacher , doctor , etc . ) . Any sexual acts involving the use of force or threats are punishable as rape , pursuant to LAW , or sexual coercion pursuant to LAW . Consensual heterosexual or lesbian acts between adults and persons over DATE are not punishable .","Offences under LAW were regularly prosecuted , an average of QUANTITY criminal proceedings being opened per year , out of which a third resulted in a conviction . As regards the penalties applied , a term of imprisonment usually exceeding DATE was imposed in PERCENT of the cases , of which PERCENT were not suspended on probation . According to information given by the Federal Minister of Justice in reply to a parliamentary question , in DATE CARDINAL persons were serving a term of imprisonment based only or mainly on a conviction under LAW and CARDINAL others were held in detention on remand in proceedings relating exclusively to charges under LAW .","On DATE , following ORG judgment of DATE ( see below ) , ORG decided to repeal LAW . It also introduced LAW , which penalises sexual acts with a person DATE if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person DATE is in a predicament and the offender takes advantage of that situation . Article PERSON also penalises inducing persons DATE to engage in sexual activities in return for payment . Article CARDINALb applies irrespective of whether the sexual acts at issue are heterosexual , homosexual or lesbian . The above amendment , published in ORG ( ORG ) no . CARDINAL\/CARDINAL , came into force on DATE .","According to the transitional provisions , the amendment does not apply to criminal proceedings in which the judgment at first instance has already been given . It does exceptionally apply , subject to the principle of the application of the more favourable law , where a judgment is set aside , inter alia , following the reopening of the proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by ORG . Apart from these situations , convictions under LAW remain unaffected by the amendment .","In a judgment of PERCENT , ORG found that LAW was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein . That judgment was given upon the complaint of a person who subsequently brought his case before ORG ( see PERSON v. GPE , no . CARDINAL , Commission decision of CARDINAL DATE , unreported ) .","NORP The relevant passage of ORG judgment reads as follows :","\u201c The development of the criminal law in DATE has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders , which have become known under the general heading of ' decriminalisation ' . This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied . The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect \u2013 in so far as strictly necessary DATE a young , maturing person from developing sexually in the wrong way . ( ' Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ... ' PERSON , in PERSON \/ PERSON ( publishers ) , PERSON , DATE , paragraph CARDINAL on Article CARDINAL ... ) Seen in this light , it is the conviction of ORG that from the point of view of the principle of equality contained in LAW those legislating in the criminal sphere can not reasonably be challenged for taking the view , by reference to authoritative expert opinions coupled with experience gained , that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age , and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males , as provided for LAW CARDINAL of LAW . This conclusion was also based on their views of morality , which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences ( while carefully weighing up all the manifold advantages and disadvantages ) . Taking everything into account , we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of LAW read in conjunction with LAW . \u201d","On DATE ORG dismissed ORG request to review the constitutionality of LAW of LAW .","ORG had argued , inter alia , that Article CARDINAL violated Articles CARDINAL and CARDINAL of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which ORG had relied in its previous judgment had since been refuted . ORG found that the issue was res judicata . It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew , if there was a change in the relevant circumstances or different legal argument . However , ORG had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age - limit for consensual homosexual relations than for consensual heterosexual or lesbian relations .","On DATE , upon a further request for review made by ORG , ORG found that LAW was unconstitutional .","ORG had argued , firstly , as it had done previously , that LAW violated Articles CARDINAL and CARDINAL of the Convention and , secondly , that it was incompatible with the principle of equality under constitutional law and with LAW , as a relationship between male adolescents aged DATE first legal , but became punishable as soon as one reached DATE and became legal again when the second one reached the age of DATE . ORG held that the second argument differed from the arguments which it had examined in its judgment of CARDINAL DATE and that it was therefore not prevented from considering it . It noted that LAW concerned only consensual homosexual relations between men aged over DATE and adolescents between CARDINAL and DATE . In DATE homosexual acts between persons of the same age ( for instance CARDINAL DATE ) or of persons with a one- to DATE age difference were not punishable . However , as soon as CARDINAL partner reached DATE , such acts constituted an offence under LAW . They became legal again when the younger partner reached the age of DATE . Given that LAW did not only apply to occasional relations but also covered ongoing relationships , it led to rather absurd results , namely a change of periods during which the homosexual relationship of CARDINAL partners was first legal , then punishable and then legal again and could therefore not be considered to be objectively justified .","In DATE ORG , ORG and ORG brought motions in ORG to repeal LAW . They argued in particular that in DATE the legislator had justified this provision on the theory that male adolescents were at a risk of being recruited into homosexuality while female adolescents were not . However , modern science had shown that sexual orientation was already established at DATE . Moreover , different ages of consent were not in line with NORP standards . In this connection they referred in particular to Recommendation CARDINAL ( DATE ) of ORG of ORG which had advocated equal ages of consent for heterosexual and homosexual relations . Protection of juveniles against sexual violence and abuse was sufficiently afforded by other provisions of LAW , irrespective of their sexual orientation .","Subsequently , on DATE , a sub - committee of ORG of ORG heard evidence from CARDINAL experts in various fields such as medicine , sexual science , Aids prevention , developmental psychology , psychotherapy , psychiatry , theology , law and human rights law . CARDINAL were clearly in favour of repealing LAW , an important argument for the experts in the fields of medicine , psychology and psychiatry being that sexual orientation was , in the majority of cases , established before DATE , which disproved the theory that male adolescents were recruited into homosexuality by homosexual experiences . Another recurring argument was that penalising homosexual relations made Aids prevention more difficult . CARDINAL experts were in favour of keeping LAW : CARDINAL simply stated that he considered it necessary for the protection of male adolescents ; the other considered that despite the fact that there was no such thing as being recruited into homosexuality , not all male adolescents were already sure of their sexual orientation and it was therefore better to give them more time to establish their identity .","On DATE ORG held a debate on the motion to repeal LAW . Those speakers who were in favour of repealing LAW relied on the arguments of the majority of the experts heard in the sub - committee . Of those speakers who were in favour of keeping LAW , some simply expressed their approval while others emphasised that they still considered the provision necessary for those male adolescents who were not sure of their sexual orientation . There was an equal vote at the close of the debate ( CARDINAL to CARDINAL ) . Consequently , LAW remained on the statute book .","On DATE ORG again brought a motion before ORG to repeal LAW . The ensuing debate followed much the same lines as before . The motion was rejected by CARDINAL votes to CARDINAL .","On DATE ORG decided to repeal LAW ( see paragraph CARDINAL above ) ."],"violated_articles":["14","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112091","languageisocode":"ENG","respondent":"ISL","branch":"CHAMBER","date":2012,"docname":"CASE OF BJ\u00d6RK EI\u00d0SD\u00d3TTIR v. ICELAND","importance":2,"conclusion":"Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["The applicant , PERSON , is an NORP national who was born in DATE and lives in PERSON . At the material time she worked as a journalist for NORP , a DATE magazine .","NORP In DATE there was a public debate in the print and televised media in GPE on whether the regulations pertaining to strip clubs should be made stricter or whether such clubs should be banned . In DATE a magazine named ORG published an article discussing the links between such clubs and prostitution . It maintained that the conditions of strip club dancers originating from eastern LOC could be compared to human trafficking as defined in the relevant ORG instruments .","Subsequently , NORP published in its issue no . CARDINAL interviews with CARDINAL east NORP women who worked at a strip club called PERSON owned by PERSON They had stated that they were happy working for Mr Y and that the critical remarks made about strip clubs could only be explained by the envy of certain other women . In the same issue , NORP published the interviews of CARDINAL anonymous strip dancers who described negative aspects of their jobs , namely that it was accompanied by prostitution and drug addiction .","Thereafter NORP was contacted by a young NORP woman , PERSON , who offered to tell her story . She was a former strip dancer who had worked at several strip clubs and had worked for Mr Y. She said that she had felt offended at seeing strip dancing being portrayed as a glamorous career . Mrs Z met the applicant for an interview , which the applicant tape recorded and then typed up on the basis of the recording . The applicant sent the typed version to Mrs Z by e - mail for confirmation and consent to publish the story . PERSON responded in the affirmative .","On DATE NORP published in its issue no . CARDINAL an article based on the interview conducted by the applicant with PERSON introduction referred to the above - mentioned coverage in issue no . DATE . In the interview , PERSON described her work as a striptease dancer in various establishments , notably at PERSON owned PERSON article , which had a number of sub - headings , comprised , inter alia , PERSON description of prostitution which she was reported to have said went on unhindered in these establishments , for example at PERSON ; her drug addiction after she had started working as a striptease dancer ; and threats she had been subjected to in connection with her work . The front cover of the magazine displayed a photograph of PERSON , which was also found on the first inside page of the magazine next to an editorial by PERSON , the magazine \u2019s editor , dealing with the above - mentioned article . Photographs of Mrs Z also featured on the title page of the article , next to its main text and a photograph of Mr Y.","Alongside the latter photograph it was stated that the magazine had contacted him and had asked his opinion about PERSON account that he \u201c encourage[d ] girls who work[ed ] for him to engage in prostitution and act[ed ] as an intermediary in this respect \u201d . It was further stated :","\u201c [ Mr Y ] totally rejected this . \u2018 I can categorically state that not one of my girl employees is encouraged to engage in prostitution . But , on the other hand , I can not prohibit acts by them in their free time.\u2019 When it was put to him that prostitution reportedly took place within the walls of his club , his answer was that this was not , to his knowledge , true to fact . \u2018 This is simply a tremendous lie and it seems that those who are successful must always be slandered . I have always tried to act as fairly as I possibly can towards my girls . I have been active in this branch for DATE , and I would not have retained my employees if I had asked them to do something against their will , ... [ Mr Y ] also was of the view that NORP \u2019s account of these matters was prompted by vicarious considerations , as NORP was published by the same company as GPE and GPE , against which he said that he had initiated legal proceedings . [ Mr Y ] was emphatic that no falsehood should be published about him or his business , and finally stated : \u2018 I hope to God that you will not have any troubles on account of what you publish in your magazine.\u2019 \u201d","On DATE and DATE Mr Y lodged defamation proceedings against the applicant , the editor , ORG , and Mrs Z before ORG . In his writ , in which he set out the CARDINAL judicial claims described below , he requested that the following statements published by NORP in the relevant issue , be declared null and void ( dau\u00f0 og \u00f3merk ) :","A. \u201c I ended up working for [ Mr Y ] , but there was a lot of prostitution at his clubs , and huge pressure was placed upon the girls who worked for him to engage in such activities . \u201d","B. \u201c [ Mr Y ] has always been strongly involved in prostitution which occurs inside his clubs . After dancing in private was banned , the prostitution has simply been carried out behind curtains allegedly used for the purpose of talking to the clients in private . \u201d","C. \u201c It varies a lot whether the clients pay [ Mr Y ] himself for the service or deal directly with the girls ... \u201d","D. \u201c I have overcome my fear of those men , although I have certainly been threatened with death and for a while I was too afraid to leave the house . \u201d","PERSON The girls he employs come here temporarily for DATE at a time and are treated as if they were in prison . \u201d","F. \u201c In between , they are really under house arrest in the building apart from a period of time during which they are permitted to go outside . \u201d","PERSON \u201c The reason for this is that girls were discovered to have found clients for themselves outside the club without [ Mr Y ] receiving a share of the fee ; he wants to control the prostitution himself . \u201d","A. \u201c Prostitution the rule rather than the exception . \u201d","B. \u201c Threatened with death . \u201d","C. \u201c Brought to GPE without any suspicion of what was going to happen . \u201d","A. \u201c Threatened with death if she told anyone . \u201d [ Published as a heading on the front page . ]","B. \u201c [ Mrs Z ] worked as a stripper and tells the NORP reporter all about the prostitution and the threats to her life . \u201d [ Published in a summary in the table of contents . ]","C. \u201c [ Mrs Z ] says the prostitution is allowed to continue unhindered and that it is conspicuous inside the striptease clubs . \u201d [ Published in a summary in the table of contents . ]","\u201c [ PERSON ] is incredibly brave to have the courage to step forward and tell her story despite having been threatened with death ... . \u201d","Mr Y argued that the responsibility for the statements in judicial claim no . CARDINAL lay mainly with PERSON or , in the alternative , with the applicant as the author of the article . The latter was responsible for the remarks in judicial claim no . CARDINAL and the defendant G.E.A. , as the magazine \u2019s editor , was responsible for the remarks in judicial claim no . CARDINAL . Alternatively , in the event that the court did not accept this claim , Mr Y requested that the applicant be held responsible as the author of the article referred to in the heading and summary in question .","In addition , Mr Y requested an order that the respondents , jointly and severally , be ordered to pay him CARDINAL NORP kr\u00f3nur ( ORG ) in respect of damages and LAW to cover the cost of publishing the judgment in the case in CARDINAL newspapers and also in the following issue of NORP .","In disputing the above claims , the applicant and the editor of NORP argued inter alia :","\u201c Most people would agree that the plaintiff is a controversial individual because of the activities in which he has been involved in PERSON and PERSON . The debate relating to the connection between striptease dancing and prostitution is tenacious , not least because abroad such operations are often run side by side , openly and in a legal manner , but also because of the nature of these activities . As an example of the persistence of such rumours in GPE , a report on human trafficking in GPE ( court document no . CARDINAL ) , by ORG in GPE , dating from DATE , could be mentioned . At page CARDINAL of the report , it is stated that during its compilation , a member of the embassy staff was offered sexual services at the restaurant PERSON . It is an established fact that the operation of pole - dancing establishments comprises obtaining girls , for the most part foreign nationals , for the purpose of dancing scantily clad or nude in front of the clients of the establishment , or in private cubicles , and , as indicated by the term , it is hard to observe everything that goes on inside such closedoff spaces . Furthermore , the plaintiff has admitted in public that there have been incidents at Goldfinger where clients were offered sexual services , cf . an interview with the plaintiff on ORG , DATE ( court document no . CARDINAL ) . Because of the mystique , among other things , which to most people , surrounds such activities as well as persistent rumours regarding prostitution and human trafficking , the defendants felt that a discussion of this matter would be of interest and relevance to the general public . The defendants refer , for example , to a news item contained in court document no . CARDINAL , which cites the Chief of Police in PERSON as stating in his report regarding a licence for PERSON that NORP research has shown striptease dancers to be subjected to various kinds of abuse and , in many cases , they become the victims of human trafficking or other crimes . The defendants feel that the plaintiff has to accept and tolerate controversial discussion with regard to the operation of PERSON .... The presentation of the plaintiff \u2019s case , however , is characterised by the shortcoming that he appears to identify himself with the operation of all the poledancing establishments in GPE . \u201d","In the course of the oral proceedings before ORG , Mr Y and PERSON concluded a judicial settlement agreement , whereby he withdrew his action against her . He maintained his claims against the applicant and the editor .","By a judgment of DATE ORG found that several of the statements originating from PERSON had been defamatory and that she in principle could be held liable but the action against her had been withdrawn . In contrast , the applicant and the editor could not be held liable and so ORG dismissed Mr Y \u2019s action against them .","Mr Y then appealed against ORG judgment to ORG .","The applicant and the editor referred to their arguments before ORG and disputed that the allegations that had formed the subjectmatter of Mr Y \u2019s defamation action had constituted defamatory statements and innuendos against him . In any event , with regard to judicial claim no . CARDINAL , according to section CARDINAL of LAW , the respondents could not be held responsible for the affirmations made by PERSON in the interview and who ought to be considered as their author . As to judicial claim no . CARDINAL , the disputed sub - headings had not contained innuendos directed against the appellant \u2019s honour or allegations to the effect that he had organised prostitution or other illicit activities . The interview had been conducted with PERSON who had spoken unreservedly about her experience of working as a striptease dancer in a number of striptease establishments . In processing the interview the applicant had used sub - headings in order to divide the text into chapters for clarification and to highlight each topic separately . She had only referred to the interviewee \u2019s words and had made no independent contribution . The same or similar considerations applied to judicial claims nos . CARDINAL and DATE . The conditions for liability under LAW no . CARDINAL\/CARDINAL had not been fulfilled . The respondents had not made any allegations that exceeded their constitutionally protected right to freedom of expression ( LAW ) .","By a judgment of CARDINAL DATE ORG rejected Mr Y \u2019s appeal in so far as it concerned the editor . In so far as it concerned the applicant , it upheld judicial claim no . CARDINAL , items A to C and E to G , and judicial claim no . CARDINAL , item A. It ordered the applicant to pay the appellant ORG CARDINAL,CARDINAL ( MONEY ( ORG ) ) in compensation for nonpecuniary damage and ORG CARDINAL , plus interest , for his costs before ORG and ORG . Its judgment contained the following reasons :","\u201c The main issue in dispute in the present case is whether the respondents are liable on the basis of section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , No . CARDINAL\/CARDINAL for statements that [ the applicant ] had cited from the interviewee and whether headings and references which the respondents themselves had created , which they maintained was done in close connection with the words used by their interviewee , fell within the provision on freedom of expression in LAW . The grounds of the case of each party are sufficiently described in the judgment which is being challenged . As indicated therein , the plaintiff based his claim for the annulment of the remarks in judicial claim no . CARDINAL , items A to G , on the premise that they contained defamatory innuendos regarding his character , which are the responsibility of the [ applicant ] as the author of the article , see section CARDINAL ( CARDINAL ) of Act No . CARDINAL . The title page of the article stated that its text had been prepared by [ the applicant ] . She confirmed at the court hearing that she had been the author of the article and had also formulated the sub - headings . She had determined the wording of the sub - headings , which , like the article , contained a near - verbatim rendering of [ Mrs Z ] \u2019s statements . This was indeed her ( [ Mrs Z ] \u2019s ) account . [ The applicant ] stated that she had tape - recorded the interview , used the recording as a foundation for the article and had sent the result to [ Mrs Z ] . Subsequently [ Mrs Z ] had confirmed by email that this was an accurate rendering of her account . When comparing the manuscript of the interview and its tape - recording , on the one hand , and the article in question with its subheadings , on the other hand , it is however clear that this is not a verbatim rendering of the interviewee \u2019s statements . However , it is also clear that the [ applicant ] in the main accurately rendered the substance of what her interviewee had said . As mentioned above , she had later confirmed that her story had been accurately rendered . Since the [ applicant ] is , as stated on the front page [ ... ] , the author of the text and has admitted to having written the article and its sub - headings , she is considered to be the author of the article and the sub - headings in the sense of section CARDINAL ( CARDINAL ) of Act No . MONEY and as such bears responsibility for this work . It is of no consequence whether [ Mrs Z ] may also be regarded as the author of the article in the sense of this provision of the law .","By the remarks identified in items A , B , \u0421 and D of judicial claim no . CARDINAL of his claim , the plaintiff [ Mr Y ] is alleged to be guilty of offences under LAW [ ... ] , by organising for his own profit prostitution among the girls working for him on his LOC and by exerting pressure on them for this purpose . The words in items \u0395 and F , however , convey the suggestion that Mr Y had deprived the girls who worked for him of their freedom , which constituted an offence under LAW . The main text under the sub - heading \u2018 Prostitution the rule rather than the exception\u2019 contained , inter alia , the words specified in items A and B of judicial claim no . CARDINAL , as well as other allegations relating to [ Mr Y ] and his striptease LOC , PERSON . It is clear from the relationship between the main text and the heading , that the heading is directed against [ Mr Y ] . The same applies to this heading as to the remarks in judicial claim items A , PERSON , \u0421 and G above . The remarks identified in items A , B , C , E , F and G of judicial claim no . CARDINAL and the sub - heading referred to in item A of judicial claim no . CARDINAL constitute a violation of LAW . They do not comprise an expression of opinion or values but statements of fact that are not covered by LAW with respect to freedom of expression . In accordance with LAW ( CARDINAL ) of the LAW they are declared null and void by the court .","The words mentioned in item D of judicial claim no . CARDINAL were directed against unspecified persons , not against the appellant [ Mr Y ] . The sub - headings in items B and C of judicial claim no . CARDINAL were of a general nature ; nor did the text below those headings appear to link them to [ Mr Y ] . Therefore , the [ applicant ] is acquitted with respect to those judicial claims . The words indicated in judicial claim CARDINAL . CARDINAL and CARDINAL of the claim , for which the respondent [ editor , G.E.A. ] bears responsibility according to section CARDINAL ( CARDINAL ) of Act No . CARDINAL , are also of a general nature and she is therefore acquitted with respect to these judicial claims .","The reasoning and conclusions of the present judgment are to be published in the first issue of NORP that appears after its delivery . However , the claim in respect of expenses for further publication are rejected .","Under section CARDINAL ( CARDINAL ) of LAW No . CARDINAL , [ Mr Y ] is awarded compensation , to be paid by [ the applicant ] with respect to the abovementioned defamatory statements , in an amount of ORG CARDINAL,CARDINAL , plus interest [ ... ] , which is deemed actionable . In accordance with this conclusion , the [ applicant ] is ordered to pay the appellant legal costs before ORG and ORG [ ... ] . In other respects , legal costs are not recoverable . \u201d","Article CARDINAL of the LAW of GPE No . CARDINAL\/CARDINAL , read :","Article CARDINAL","\u201c Everyone has the right to freedom of opinion and belief .","Everyone shall be free to express his thoughts , but shall also be liable to answer for them in court . The law may never provide for censorship or other similar limitations to freedom of expression .","Freedom of expression may only be restricted by law in the interests of public order or the security of the ORG , for the protection of health or morals , or for the protection of the rights or reputation of others , if such restrictions are deemed necessary and in agreement with democratic traditions . \u201d","The Penal Code No . CARDINAL contained in Chapter XXV , entitled \u201c Defamation of character and violations of privacy\u2019 , the following relevant provisions :","Article CARDINAL","\u201c Any person who harms the reputation of another person by an insult in words or in deed , and any person spreading such insults shall be subject to fines or to imprisonment of DATE . \u201d","Article CARDINAL","\u201c If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations , he shall be subject to fines or to imprisonment of DATE . \u201d","Article CARDINAL","\u201c The making or spreading of an injurious allegation against a person \u2019s better knowledge , this shall be subject to up to DATE imprisonment .","If an allegation is published or spread in a public manner , even where the person spreading the allegation did not have a probable reason to believe it to be correct , this shall be subject to fines or up to CARDINAL years\u2019 imprisonment . \u201d","Article CARDINAL","\u201c In a defamation action , defamatory remarks may be declared null and void at the demand of the injured party .","A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person , on the latter \u2019s demand , a reasonable amount to cover the cost of the publication of a judgment , its main contents or reasoning , as circumstances may warrant in CARDINAL or more public newspapers or publications . \u201d","Section CARDINAL(CARDINAL ) of LAW No . CARDINAL\/CARDINAL provided :","\u201c A person who","a. deliberately or through gross negligence causes physical injury or","b. is responsible for an unlawful injury against the freedom , peace , honour or person of another party","may be ordered to pay non - pecuniary damages to the injured party . \u201d","The Printing Act No . GPE , LAW on the liability for the contents of publications , contained the following relevant provisions .","Section CARDINAL","\u201c Any person who publishes , distributes , or is involved in the publishing or distribution , of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law . \u201d","Section CARDINAL","\u201c As regards liability for newspapers or magazines other than those listed in section DATE , the following rules shall apply :","The author is subject to criminal liability and liability for damages if he or she is identified and either resident in GPE when the publication is published or within NORP jurisdiction at the time proceedings are initiated .","If no such author is identified , the publisher or editor are liable , thereafter the party selling or distributing the publication , and finally the party responsible for its printing or lettering . \u201d","The Code of Ethics of ORG included the following provisions :","Article CARDINAL","\u201c A journalist will endeavour to do nothing which will bring discredit upon his or her profession or professional association , paper or newsroom . A journalist shall avoid any actions which could undermine the public opinion of PERSON work or damage the interests of the profession . A journalist shall always exhibit fairness in dealings with colleagues . \u201d","Article CARDINAL","\u201c A journalist is aware of his or her personal responsibility for what he or she writes . He or she shall bear in mind that he or she will generally be regarded as a journalist in his or her writings and speech , even when he or she is acting outside his or her profession . A journalist will respect the confidentiality of his or her sources . \u201d","Article CARDINAL","\u201c A journalist will exercise care in his or her gathering of material , the use of the material and presentation to the extent possible , and show due consideration in sensitive matters . A journalist shall avoid any actions which could cause unnecessary distress or dishonour . \u201d"],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88790","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF ITSLAYEV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 6-1","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE . Formerly a resident of the village of GPE of ORG in GPE , he is currently living in the town of GPE in GPE . He is a lawyer at ORG .","NORP In DATE the applicant was appointed head of the administration of ORG . In DATE the district administration stopped paying his salary because of lack of funds .","NORP In DATE NORP rebel fighters took power in PERSON , the capital of GPE .","NORP In DATE the NORP federal government regained control over ORG . In DATE the district administration was re - established and the applicant applied for payment of his salary . He states that the administration promised to pay his salary as soon as the money arrived from the federal budget .","NORP In DATE ORG ( \u201c the ORG \u201d ) started functioning , but it was located in GPE , the administrative centre of LOC of GPE , QUANTITY from GPE . The applicant submitted that he could not go to ORG to lodge his claim because of the poor overall security situation and a curfew imposed by the military . Moreover , he had no money for travel and accommodation there .","On DATE the applicant again applied to the district administration for payment of his salary . On DATE he received a reply from the head of the administration dated DATE in which the latter informed him that the salary would be paid as soon as funds were available .","Sometime after DATE ORG moved from ORG .","NORP On DATE the applicant brought a court action with ORG against the district administration for payment of salary arrears over the period DATE and DATE .","On DATE he lodged a formal request for reinstatement of time - limits for lodging his claim . It read as follows :","\u201c Courts started functioning in GPE in DATE . Therefore , I could lodge a claim against the administration of ORG for salary arrears due for my work as head of administration of ORG in DATE only from that moment . However , in the beginning the court was located in ORG and it was difficult to go there because of numerous checkpoints , curfew and lack of money for travel . Furthermore , on numerous occasions I have applied to the administration of ORG with requests to pay me the salary arrears , considering that my claims were lawful . On DATE I received a letter signed by the head of the administration of ORG , from which it emerged that the payment of salary arrears had again been postponed . Until the last moment I hoped that the salary arrears would be paid to me voluntarily , as it was an obligation of any state authority .","For the above reasons I missed the time - limits for lodging a claim against the administration of ORG for salary arrears .","Taking into consideration the above statements and in accordance with LAW I request [ ORG ] to restore the procedural time - limit for lodging a claim for salary arrears . \u201d","On DATE ORG held a hearing in the applicant \u2019s case . According to the record of the hearing , the applicant gave the following explanation as regards his failure to comply with the timelimits :","\u201c I applied to a court only on DATE as I did not know that law established the time - limits for applying to a court . I request the court to reinstate the time - limits for applying to a court and to recover salary arrears ... \u201d","The defendant accepted the applicant \u2019s salary claims only for the period DATE and submitted that the applicant would receive the arrears as soon as funds were available .","On DATE ORG adopted a judgment in the case , which in its relevant part provided as follows :","\u201c ... [ Mr PERSON ] applied to the court only on DATE because he did not know that law established the time - limits for applying to a court and he requests the court to reinstate the time - limit for applying to the court and to recover salary arrears ...","The defendant \u2019s representative submitted that ... ORG agreed to pay the applicant salary arrears for the period DATE as soon as the funds were available .","Having regard to the parties\u2019 submissions and having read the materials of the case , the court comes to the following conclusion :","... According to LAW an application concerning the settlement of a labour dispute is to be lodged with a district court within DATE when an employee knew or should have known about the violation of his right . In violation of this statutory provision , the applicant did not apply to a court DATE , when the courts started functioning in GPE , and DATE . The court considers that the applicant \u2019s arguments that he had missed the time - limits because the head of administration of LOC had promised to pay him salary and that he was not aware of time - limits are unsubstantiated .","Therefore the court comes to a conclusion that the applicant missed the time - limit without any valid reason and that there are no grounds to restore it . \u201d","The applicant alleged that the presiding judge had relied on an order from \u201c higher \u201d authorities not to accept claims similar to that of the applicant \u2019s for examination on the merits and that he had to seek advice from judge PERSON of ORG of GPE ( \u201c the Supreme Court \u201d ) . The applicant also indicated that the presiding judge had been appointed for DATE and therefore he could not be considered independent .","The applicant provided the ORG with a copy of the decision delivered by ORG on DATE in a case of a certain PERSON , who had claimed from the district administration salary arrears due to his wife . He submitted that his wife had been killed in DATE and that he was in a very difficult financial situation because he had borrowed money to bury her . ORG restored the time - limit for lodging his claim and examined it on the merits . It held as follows :","\u201c ... the court finds that the plaintiff missed the time - limit for a valid reason , because no courts were functioning in GPE DATE , and DATE the court was based in PERSON and he could not have applied there for lack of funds ... \u201d","On DATE the applicant lodged an appeal with ORG against the judgment of DATE . In so far as he contested the application of time - limits in his case , the applicant made CARDINAL arguments .","In the first place he submitted that he had applied for the reinstatement of time - limits because ORG requested him to do so . However , LAW could not be applied in his case , as the antiterrorist operation was still going on in GPE . On DATE he had received a letter from the head of the district administration by which he was informed that his salary arrears would be paid as soon as funds were available . Therefore his right had been infringed at DATE . The DATE time - limit had started to run from DATE and he had applied to the court in due time .","Secondly , assuming that he had missed the time - limit , ORG could and should in accordance with LAW accept that he had missed the time - limit for valid reasons which were as follows :","\u201c ( a ) I was appointed head of a rural administration in DATE and worked in this position in very difficult conditions , sometimes at risk to my life .","( b ) I think that it is a matter of honour for the NORP state to pay at least salary arrears to heads of administrations of communities which were appointed in that period and who had worked with federal authorities .","( c ) On numerous occasions I have applied orally to ORG . And when I was told that there were no funds , that I would have to wait and that I would be paid , I continued to wait , believing the authorities and understanding the situation which existed in the Republic .","( d ) ORG should not have punished me , as it did , and taken the side of those who in that period killed and continue to kill people who work for the state . As a matter of fact , ORG have now punished me for my work for the state in DATE .","( e ) There existed no legal conditions in GPE to apply LAW in labour disputes involving state authorities because of the circumstances which existed in DATE . \u201d","The applicant requested the appeal court to take into account the above circumstances , to quash the judgment of DATE and deliver a new decision in his case .","On DATE ORG , comprising judges PERSON and PERSON and presided over by Judge PERSON , upheld the judgment of DATE . It held as follows :","\u201c ... Having regard to the materials of the case and to the submissions by the plaintiff , ORG finds that the judgment is lawful and reasoned .","According to LAW an application concerning the settlement of a labour dispute is to be lodged with a court within DATE when an employee knew or should have known about the violation of his right . However , since DATE the plaintiff has not made such an application to a court .","The [ Town ] court has thoroughly examined the submitted evidence and reasonably found that the reasons advances by the plaintiff for missing the time - limit were not valid and refused to restore the time - limit . \u201d","The applicant was present at the hearing . He alleged that Judge PERSON , to whom , ORG judge had allegedly referred , was a member of the court . Furthermore , according to the applicant , his appeal was not examined in a public hearing , but took place in CARDINAL of the rooms in the ORG building .","Article CARDINAL of the NORP Labour Code of DATE ( in force at the material time ) provided in its relevant part that an application concerning the settlement of a labour dispute had to be lodged with a district court within DATE when an employee knew or should have known about the violation of his right . In instances where the periods established in that Article lapsed for justifiable reasons , they could be reinstated by a court .","Article CARDINAL of ORG ( in force at the material time ) provided in its relevant parts that in cases where individuals missed the statutory time - limits for reasons which the court considered valid , the time - limits could be restored by a court . An application for reinstatement of time - limits had to be lodged with a court with jurisdiction to take a procedural decision on the matter , and had to be examined in a hearing . A claim in respect of which the time - limits had expired had to be lodged together with the application for reinstatement of the time - limits .","Ruling of the plenary session of ORG of GPE of DATE No . CARDINAL ( applied until DATE ) \u201c On Some Issues related to ORG of GPE when resolving ORG \u201d provided in relevant parts of paragraph CARDINAL that a judge could not refuse to accept a claim for consideration on the ground of expiration of time - limits , as LAW did not provide for such a possibility . Where a court considered that the time - limits had not been respected for valid reasons , it had to restore them . In cases where a court , after having thoroughly examined the materials of the case , established that the time - limits had not been complied with for a non - valid reason , it had to dismiss the claim ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103530","languageisocode":"ENG","respondent":"MKD","branch":"CHAMBER","date":2011,"docname":"CASE OF ATANASOV v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Angelika Nu\u00dfberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On DATE the public prosecutor requested an investigating judge of ORG ( \u201c the trial court \u201d ) to open an investigation against the applicant on the count of forgery of a notice convening a meeting of shareholders of a company , ORG , in which he was also a shareholder ( \u201c the notice \u201d ) . The applicant was accused of having deceived a considerable number of shareholders into signing the notice by misleading them in the belief that there would be CARDINAL item on the agenda , instead of CARDINAL , as was actually the case . The investigating judge heard the applicant and CARDINAL witnesses . After the investigation had been completed , on CARDINAL DATE the public prosecutor lodged an indictment against the applicant .","The trial court fixed QUANTITY hearings , including that of DATE , which the applicant did not attend , although he had been summoned properly . During the trial , the court again heard oral evidence from the applicant , who had a court - appointed lawyer , and the CARDINAL witnesses and admitted other documentary evidence . On DATE , in the presence of the applicant 's lawyer only , the trial court convicted the applicant and sentenced him to DATE imprisonment suspended for DATE . It did not rely on the statements made by the witnesses before the company 's management denying that they had been informed about the remaining items on the agenda . The court rejected the applicant 's defence as self - serving and the testimony of CARDINAL defence witnesses as inconsistent and implausible .","On DATE the applicant who , at the relevant time , was not represented by counsel , appealed against that decision . He did not request to be notified of the date of the session ( \u0441\u0435\u0434\u043d\u0438\u0446\u0430 ) of ORG .","On DATE ORG dismissed the applicant 's appeal and upheld the trial court 's decision . The court decided in private . The public prosecutor was present , but not the applicant . The court addressed the public prosecutor 's written submission of DATE and her oral pleadings requesting that the applicant 's appeal be dismissed .","The decision was served on the applicant on DATE .","On DATE the public prosecutor informed the applicant that there were no grounds for lodging a request with ORG for the protection of legality ( \u201c legality review request \u201d ) .","NORP Under section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW ( \u201c LAW \u201d ) ( ORG \u0437\u0430 \u043a\u0440\u0438\u0432\u0438\u0447\u043d\u0430 \u043f\u043e\u0441\u0442\u0430\u043f\u043a\u0430 ) , the chairman of the adjudicating panel of ORG will appoint a judge rapporteur . The latter , in cases involving offences automatically subject to prosecution by the ORG , will forward the case file to the public prosecutor , who will examine and return it without delay . After receiving the case file , the chairman will fix a date for the session ( \u0441\u0435\u0434\u043d\u0438\u0446\u0430 ) of the adjudicating panel . The public prosecutor will be notified thereof .","Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the LAW provides for notification of the date of session to be given , inter alia , to the defendant and his lawyer , the victim ( as a plaintiff , \u0442\u0443\u0436\u0438\u0442\u0435\u043b ) and the private prosecutor ( \u043f\u0440\u0438\u0432\u0430\u0442\u0435\u043d \u0442\u0443\u0436\u0438\u0442\u0435\u043b ) if , within the period prescribed for the appeal or reply to the appeal , they so request or propose that a hearing ( section CARDINAL of the Act ) be held before the second - instance court . Such notification may be given to parties who have not made such a request if their attendance would contribute to establishing the facts . The session starts with the presentation of a report prepared by a judge rapporteur . The panel may seek additional explanations from the parties attending the session . Parties can propose , with the aim of supplementing the report , that some documents from the case - file are read . They can also specify their arguments submitted in the appeal or reply to the appeal .","Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the LAW provides that the second - instance court will hold a hearing ( \u043f\u0440\u0435\u0442\u0440\u0435\u0441 ) only if new evidence needs to be produced or evidence re - produced , or if the case does not need to be remitted for fresh consideration . The defendant and his or her counsel , the public prosecutor , the victim and any witnesses or experts to be heard are summoned to attend the hearing before the second - instance court .","NORP Under sections CARDINAL , the public prosecutor can submit a legality review request in respect of a final decision . The public prosecutor is always apprised of the session of ORG , which decides the legality review request . If the court accepts the legality review request submitted in favour of a person convicted , it can not amend the final decision to his or her significant disadvantage in respect of the legal qualification of the crime and penalty imposed . If the legality review request is lodged against the person convicted , the court can only acknowledge the violation without amending the final decision ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112204","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2012,"docname":"CASE OF MUSCAT v. MALTA","importance":4,"conclusion":"No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)","judges":"David Scicluna;David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","The applicant was CARDINAL of the parties to civil proceedings instituted against , inter alia , him ( as possessor ) , concerning the recission of a contract of perpetual emphyteusis of a hotel owing to a failure to effect the relevant payments , namely PERSON et proprio et nomine v ORG and for any interest they might have PERSON [ the applicant ] and PERSON . In these proceedings the address of the applicant ( the then defendant in the proceedings ) was correctly marked as \u201c FAC , GPE FAC , GPE \u201d , and the claimant \u2019s address correctly marked as \u201c DATE , PERSON , GPE \u201d .","By a judgment of DATE , the first - instance court found against the defendants and ordered the property to be returned to the claimant . The defendants had DATE to vacate the property .","Caral Ltd , the holder of the emphyteusis and main defendant , did not appeal . In consequence , the rescission of the emphyteusis and the eviction of ORG became final .","On DATE the applicant appealed . The appeal application was signed by PERSON , the Assistant Advocate for Legal Aid . On DATE , through the assistance of PERSON ( in his capacity as ORG ) , the applicant requested legal aid ( Article CARDINAL of the Code of Organisation and Civil Procedure \u201c COCP \u201d ) . In both the appeal application and the legal - aid request , signed by PERSON , the addresses of the applicant and the respondent were inverted .","On DATE the applicant was granted legal aid and PERSON and PERSON were nominated as advocate and legal procurator respectively for this purpose . The applicant was informed that he should enquire at the court registry for details of those nominated . It would appear that he did not make an enquiry at the relevant time .","On DATE the court bailiff unsuccessfully attempted to serve notification of the appeal on the respondent at \u201c FAC , FAC , GPE \u201d ( the applicant \u2019s address ) . In consequence , he marked the notification as undelivered \u201c riferta negattiva \u201d ( see Relevant domestic law ) and noted that the venue was derelict .","No further attempts at notification were made .","On DATE , at the first appeal hearing conducted in the absence of both parties , the appeal was declared to have lapsed ( been deserted ) , on the basis that no notification of the appeal application had been made to the respondent within the peremptory DATE period .","On DATE the applicant lodged an application with the ordinary courts requesting the revocation of the decision of DATE , in that it had been issued on the basis of a lack of notification as a result of an error in the address of the respondent as submitted in the appeal application signed by ORG .","By a decision of DATE , the applicant \u2019s request was rejected as unjustified on the basis that it had been the applicant , through his legal representative , who had supplied the erroneous address and during the rest of DATE the applicant had not taken any steps to rectify the error .","On DATE , the applicant lodged another application with the ordinary courts , requesting the revocation of the decision of DATE . He argued , inter alia , that the error had been made by ORG and not by himself , and that he had never been given a copy of the procedural acts presented in his name , which would have enabled him to rectify the error . On DATE the applicant \u2019s case was dismissed as it was substantially the same as his previous request .","On DATE the applicant instituted constitutional redress proceedings before ORG ( FAC ) . Referring to ORG judgments LAW QUANTITY ( c ) , he complained that the decision of DATE and the decisions confirming it denied him the right to a fair trial , to legal assistance and to access to court as guaranteed by LAW . He therefore requested the court to revoke the said decision .","On DATE ORG rejected the applicant \u2019s claims . Having considered the evidence , the court noted that the relevant addresses in the appeal folder had been incorrect and that at the time ( after the appeal application against the decision of DATE ) the applicant was not in contact with ORG but with legal counsel who had acted for him previously , and maybe PERSON , his appointed advocate for legal aid . However , neither of these advocates advised the applicant to verify the acts of the proceedings . Thus , neither the applicant nor a legal representative had ever verified whether the respondents had been successfully notified . In consequence , ORG found that the applicant was mostly responsible for causing the case to lapse , as he had failed to conduct the necessary verifications and had failed to prove that what had happened had been beyond his control . Even assuming that the initial error was imputable to somebody else it was up to the applicant to follow up his appeal proceedings . Moreover , unlike in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL , ECHR CARDINALVIII ) the error in the present case did not make the appeal null and void , and it could have been avoided if the applicant had been careful to monitor the state of his case .","On DATE the applicant appealed to ORG . He argued , inter alia , that in view of an error on the part of an agent of the ORG , the application of \u201c lapsed \u201d status ( desertion ) provisions to his case had had disproportionate consequences .","On DATE ORG dismissed his claims on the merits . It reiterated that throughout DATE the applicant had done nothing to correct the underlying error or to follow up his appeal proceedings . The case was the applicant \u2019s and not the lawyer \u2019s and therefore it was the applicant \u2019s responsibility to show assiduous interest in what was going on and to follow the case scrupulously . The error in the present case was a minor one and could have been corrected . It was , therefore , irrelevant who had originally made the mistake . A simple check could have easily been made with the court \u2019s registry . However , nothing had been done , and in consequence CARDINAL attempt to notify the respondent had been made .","As to the application of LAW ( see Relevant domestic law ) of LAW ( \u201c COCP \u201d ) , ORG held that the provision used the word \u201c may \u201d and therefore the court was not obliged to make any assessment to decide whether the use of the provision would be justified . In any event , in the present case , it had appeared that notwithstanding the first failed notification ( riferta negattiva ) nothing had been done to request a second notification . It followed that the court \u2019s decision not to make use of the provision had been justified . Moreover , procedural rules safeguarded the interests of both parties and those of legal certainty .","At the time of the present case , LAW , regarding desertion of causes , read as follows :","\u201c ( CARDINAL ) Saving the provisions of sub - article ( CARDINAL ) and of articles CARDINAL and CARDINAL , the written pleadings in any cause shall be closed , in first instance , within the peremptory time of DATE , and , in second instance , within the peremptory time of DATE .","( CARDINAL ) The time shall commence to run , in first instance , from DATE on which the sworn application is filed , and , in second instance , from the date of the application of appeal for the reversal or variation of the judgment appealed from .","( CARDINAL ) If it is found that the written pleadings in any cause set down for hearing are not closed , the court may order such cause to be again placed with the causes the pleadings whereof are not yet closed and fix for the closing of the pleadings of that cause a peremptory time not exceeding one month .","( CARDINAL ) Notwithstanding the provisions of sub - article ( CARDINAL ) , the pleadings shall be deemed to be closed if the party not served with the pleading necessary for the close of the record appears at the trial and does not raise the question that the pleadings are not closed and proceeds or knowingly allows others to proceed to further acts without raising such question . \u201d","NORP In DATE , sub - article CARDINAL above was amended to read as follows :","( CARDINAL ) If , even where the peremptory times referred to in sub - article ( CARDINAL ) shall have lapsed , it is found that the written pleadings in any cause are not closed , the court shall once only give such orders which it may deem fit so that such pleadings may be closed as soon as possible in order to avoid that such cause be deserted by reason of some failure to notify or by reason of the failure of performance of a procedure or formality .","( CARDINALA ) The desertion of a cause shall be declared by means of a decree delivered in open court if , after the orders referred to in sub - article ( CARDINAL ) shall have been given , the written pleadings are not closed .","Following the DATE amendments , LAW , regarding the signing of pleadings , read as follows :","Article CARDINAL","\u201c The written pleadings and the applications whether sworn or not shall be signed by the advocate and also by the legal procurator , if any . \u201d","According to NORP practice , once an advocate or legal procurator pays the dues relevant for the notification ( notifika ) of an act , the bailiff will attempt to deliver notification to the address indicated . Subsequently , the bailiff must record the outcome of his attempt in the court file . Thus , an individual can learn whether the bailiff has successfully notified the other party or otherwise by virtue of a note ( ir - riferta ) that the bailiff sticks on the back of the document in the case file , which may be consulted in the registry . In the event that notification was unsuccessful , the stamp on the back of the document will be in red ( riferta negattiva ) . If notification is successful the stamp on the back of the document will be in blue ( riferta pozittiva ) . In the case of a \u201c riferta negattiva \u201d , the bailiff normally notes down the reason why notification was unsuccessful . Further notification will require payment and the relevant instruction depending on the bailiff \u2019s written comments . Article CARDINAL ( CARDINAL ) of the ORG reads as follows :","\u201c The officer charged with the service of an act shall , on DATE when he serves or unsuccessfully seeks to serve the act , or , at the latest , on DATE , draw up a certificate stating whether the service was effected or not . In the affirmative , the certificate shall state the name and surname of the person on whom service was effected and , if the act was not served directly on the person on whom service was to be effected , the name and the surname of the person to whom the copy was delivered and the place where the act was served ; in the negative , the certificate shall state the reason why service was not effected . \u201d","Article CARDINAL of the ORG , concerning the duties of legal - aid representatives , reads as follows :","\u201c ( CARDINAL ) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall :","( a ) act in the best interest of the person admitted to the benefit of legal aid , and may not demand any form of payment from that party ;","( b ) appear in court when the case of the person admitted to the benefit of legal aid is called ;","( c ) make the necessary submissions and file the requisite notes , applications , replies , notices , applications , and other written pleadings as circumstances require .","( CARDINAL ) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid , until the same has been finally disposed of , even though the period of his appointment may have expired . \u201d","In the judgments of ORG v Commissioner of Police , of DATE and ORG v ORG , of CARDINAL DATE , both cases decided by ORG ( First Hall ) in its Constitutional Jurisdiction , in the same single judge formation , ORG entered into the admissibility and where necessary the merits of the applications , notwithstanding that the applications to the court had been presented by the claimant without the assistance of a lawyer . However , ORG did not deal specifically with the respondents\u2019 objection that the application was null and void , on the basis that it had not been signed by an advocate , as required by law and confirmed by the judgment in PERSON v ORG of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76189","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF YAYABA\u015eI v. TURKEY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE .","On an unspecified date in DATE ORG and Highways expropriated a plot of land belonging to the applicant in GPE in order to build ORG . The authorities paid him the value of the land , assessed by a committee of experts , when the expropriation took place .","Following the applicant \u2019s request , on DATE ORG awarded him additional compensation plus interest at the statutory rate applicable .","On DATE ORG upheld that judgment .","On DATE the amount of MONEY ( TRL ) was paid to the applicant .","The relevant domestic law and practice are set out in the case of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE , \u00a7 \u00a7 CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96339","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF DENIS VASILYEV v. RUSSIA","importance":2,"conclusion":"Remainder inadmissible;Violations of Art. 3;Violation of Art. 13;No violation of Art. 34;Pecuniary and non-pecuniary damage - awards","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant and his school friend Mr N. were spending the evening together . At TIME they went to Mr N. \u2019s place as Mr N. , who is a diabetic , needed an insulin injection . After that they took a taxi to the applicant \u2019s place .","While walking through the courtyard they were assaulted , near house no . CARDINAL on FAC in LOC of GPE . The attacker called out to them from behind and , before they could turn round , they received strong blows to their heads , fainted and collapsed on the ground . A considerable sum of money , a gold bracelet and a cell phone were stolen from them .","Neighbours called the LOC police station . At TIME on DATE the police officers PERSON and PERSON PERSON arrived at the scene . They served in the CARDINALnd police battalion of LOC of GPE , whose main task was to provide security to businesses and private property under commercial contracts . In addition to that , they acted as neighbourhood patrol officers .","According to their statements , they saw CARDINAL young men on the road whom they believed to be drunk . CARDINAL of them was sitting , the other lay still . Some vomit could be seen . The policemen claimed that they reported the situation to the officer at the GPE police station and told him that an ambulance or specialists from a sobering - up centre should be called .","The policemen then dragged the unconscious applicant and his friend away from the road into the courtyard of house no . CARDINAL . According to the Government , the policemen left the applicant and N. \u201c on a grass plot \u201d ; the applicant claimed that they had been put \u201c in the rubbish dump \u201d . At that moment the private security co - ordinator ( \u0434\u0435\u0436\u0443\u0440\u043d\u044b\u0439 \u043f\u043e \u043e\u0442\u0434\u0435\u043b\u0443 \u0432\u043d\u0435\u0432\u0435\u0434\u043e\u043c\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0439 \u043e\u0445\u0440\u0430\u043d\u044b ) informed the officers that an alarm had gone off and instructed them to check it out . They reported it to the officer at the police station and left the scene .","At TIME janitors PERSON and PERSON spotted CARDINAL young men CARDINAL metres away from the rubbish bins and attempted to wake them up . However , both were unconscious , the dark - haired CARDINAL ( Mr N. ) mumbled incoherently . They called for an ambulance .","At TIME in the first ambulance . On seeing CARDINAL victims , he called for another ambulance and began attending to Mr N. who had an abrasion and haematoma on his left cheek . When PERSON regained consciousness , Doctor PERSON helped him climb into the van and took him to FAC no . CARDINAL .","In the meantime , a second ambulance arrived with Doctor PERSON . He loaded the still unconscious applicant into the van and took him to FAC no . CARDINAL .","Upon arrival at the hospital at TIME the applicant was diagnosed with alcohol intoxication . Injuries and abrasions on his wrists and forehead were noted . TIME he was examined by a neurosurgeon .","Until TIME on DATE the applicant remained , still unconscious and also undressed , on a trolley in the hospital corridor .","At TIME emergency surgery \u2013 bilateral trepanation of the skull \u2013 was performed on him .","On DATE the applicant \u2019s mother invited a private doctor to examine her son . The doctor determined that the applicant was in a life - threatening condition . An ambulance transferred the applicant in a state of coma to ORG in GPE .","From DATE the applicant was in a coma . On DATE tracheotomy ( creation of a surgical airway in the cervical trachea ) was performed and a cannula was inserted .","After he woke up from the coma , he was transferred to the neurosurgery unit where he stayed in a critical state until DATE .","Until the removal of the cannula in DATE and then in DATE , the applicant underwent several operative procedures for osteomyelitis of the skull .","On DATE a medical panel recognised the applicant as having disability of the second category .","In DATE the applicant developed post - traumatic convulsive disorder . On DATE he had a seizure and fainted . He was taken to ORG and operated upon for a pus abscess in the skull .","On DATE and DATE the GPE police station received from Hospitals nos . CARDINAL and CARDINAL reports on bodily injuries concerning the applicant and Mr N. The head of the inquiries section of the police station asked the operational officer Mr PERSON to check the reports . Subsequently the internal inquiry ( see below ) revealed that Mr PERSON had not taken any measures for the purpose of inspecting the crime scene , identifying witnesses or interviewing the victims .","On DATE Mr PERSON forwarded the materials to ORG where the case was assigned to the operational officer Mr PERSON . Mr PERSON did not take any procedural decision regarding the materials until DATE .","On DATE the head of the PERSON police station launched an internal inquiry which revealed that nothing had been done with regard to the injury reports . Both Mr PERSON and Mr PERSON were disciplined . On DATE the crime scene was examined for the first time . On DATE a criminal investigation into the assault on the applicant and Mr N. was opened .","On DATE the investigator Mr ORG issued a decision to discontinue the proceedings because the perpetrator of the assault could not be identified . The only items of evidence referred to in the decision were statements by the police officers PERSON and PERSON , by the ambulance doctor and by Mr N.","On DATE the investigator Mr PERSON decided to re - open the investigation .","NORP By letter of DATE , a deputy to the Presidential Envoy in ORG wrote to the applicant \u2019s mother that her complaint about the prolonged investigation had been examined by ORG of ORG . It had been established that the inquiry had not been properly conducted , that no one had visited or examined the crime scene , and that no other investigative steps had been taken . Operational police officers Mr PERSON and PERSON PERSON had been reprimanded .","On DATE , DATE , DATE , DATE and DATE , decisions to suspend the proceedings were issued because the perpetrator(s ) could not be identified . Supervising prosecutors set these decisions aside and instructed the investigator to take additional investigative measures , such as interviewing caretakers in the neighbouring buildings and the night watchman in the PERSON caf\u00e9 and examining the list of calls made from the stolen cell phone .","On DATE the case was transferred to ORG of ORG .","In a letter of CARDINAL DATE ORG of ORG acknowledged that the investigation of cases nos . CARDINAL and CARDINAL ( see below ) had been improper , noting as follows :","\u201c Thus , it has been established that at the initial stage the investigation of case no . DATE was carried out at a low professional level and in breach of the rules of criminal procedure . On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified . Certain officers of the GPE police station of LOC in GPE were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation . Investigation of case no . CARDINAL [ medical negligence ] was also held back because of significant failures .","Having regard to deficiencies in the investigation and in compliance with the directions of the GPE city prosecutor \u2019s office , additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible . \u201d","On DATE and CARDINAL DATE public prosecutors reversed further police decisions suspending the investigation and ordered that specific investigative measures be taken .","On DATE the case was referred to the LOC prosecutor \u2019s office and assigned to the investigator PERSON , who was in charge of particularly important cases . On DATE , DATE , DATE and DATE , and DATE Mr PERSON suspended the investigation on the ground that the perpetrator(s ) of the assault could not be identified . Those decisions were reversed by supervising prosecutors .","The most recent decision by Mr NORP on suspending the investigation which has been made available to the ORG is dated DATE . It took stock of the evidence that had been collected in the case .","The decisions indicated that the statements had been taken from both victims \u2013 the applicant and DATE who had not remembered the attacker , their friends who had not seen the attack , and also the police officers , janitors and doctors who had seen the victims after the attack . The forensic experts had established that the applicant had sustained \u201c serious bodily injuries \u201d and ORG \u201c light bodily injuries \u201d .","The applicant \u2019s mother told the investigator that shortly after the crime she had visited the GPE police station . CARDINAL of the police officers who had curly hair and the nickname \u201c PERSON \u201d , had described to her that the victims had been found near the PERSON caf\u00e9 . The applicant \u2019s mother had gone to the caf\u00e9 and talked to the employees who had told her that on TIME CARDINAL police officers nicknamed \u201c PERSON , \u201c PERSON , and \u201c NORP \u201d had been heavily drinking in the caf\u00e9 and had been aggressive to the point of seeking a fight with the bartender . However , they had not witnessed any fights between the officers and her son or PERSON investigator also took testimony from CARDINAL officers from the LOC police station who claimed they were unable to remember visiting the caf\u00e9 on TIME and did not know anyone nicknamed \u201c PERSON \u201d or \u201c PERSON \u201d . CARDINAL of them denied that they had ever been to the PERSON caf\u00e9 and the other CARDINAL acknowledged that they had gone there from time to time .","Mr N. \u2019s mother stated to the investigator that in the hospital her CARDINAL - conscious son had mumbled incoherently about \u201c cops \u201d hitting him on the head . When she came to visit him DATE , she stumbled upon CARDINAL men in civilian clothing by her son \u2019s bed , CARDINAL of them was shaking her son and asking him whether he had remembered the \u201c cops \u201d who had beaten him . She loudly protested and they all went out into the corridor where the men produced their badges and introduced themselves as the police officers from the LOC police station , Mr PERSON and Mr PERSON . Between themselves , they called each other \u201c PERSON \u201d and \u201c PERSON \u201d . They told her that they were investigating the assault on her son . The investigator interviewed Mr PERSON , who denied that he had ever visited Mr N. in hospital . Mr PERSON was not available for questioning .","The investigator found that it was impossible to identify the persons responsible for the assault . On DATE a supervising prosecutor annulled that decision and instructed Mr Volk to elucidate discrepancies in the testimony by organising confrontations and to locate and examine former police officers from the LOC police station .","On DATE , following on the applicant \u2019s mother \u2019s complaint about an improper performance of their duties by the police officers Mr PERSON and PERSON and by Doctor PERSON , who had not rendered assistance to the applicant that was appropriate for his condition , certain material was severed from the main criminal case for a separate inquiry .","On DATE an investigator with the Izmaylovskiy District prosecutor \u2019s office , on the basis of statements by Mr N. , the applicant \u2019s mother , Doctors P. , PERSON . and PERSON , and the officers PERSON and PERSON , decided that there was no indication of a criminal act because Doctor PERSON had correctly diagnosed the applicant and had taken all the required measures , and because the officers had \u201c erred in good faith as to Mr PERSON \u2019s and Mr N. \u2019s capacity to take care of themselves \u201d .","On DATE a supervising prosecutor quashed that decision . She found that the conclusion about the police ORG good - faith error contradicted the facts of the case , as the applicant had been unconscious when they had arrived . She decided on the institution of criminal proceedings under LAW of LAW ( criminal negligence leading to the victim \u2019s death or grave injury ) . The investigation was assigned to the LOC prosecutor .","On DATE and DATE the investigation was discontinued for a lack of indications of a criminal offence . These decisions were set aside by higher - ranking prosecutors .","On an unspecified date the officers PERSON and PERSON were formally charged with abandonment of the applicant and PERSON in danger , an offence under LAW .","On DATE the applicant was granted the status of a victim in the proceedings .","On DATE the applicant asked the investigator to amend the legal characterisation of the ORG actions . He pointed out that the officers had been on duty and had acted in breach of requirements of LAW . For that reason they should have been charged with criminal negligence leading to grave consequences , an offence under LAW of LAW . On DATE the applicant asked the investigator to recognise his status as a civil party . His application bore a handwritten acknowledgement of receipt by the investigator , dated DATE . It is not clear what response the investigator gave to the applicant \u2019s requests .","On DATE the bill of indictment was served on Mr PERSON and PERSON . The prosecution \u2019s case under LAW was that they had been the patrolling police officers on duty when they had arrived at the scene and found CARDINAL unconscious men . Being aware that the men had been helpless and unable to care for themselves , PERSON and PERSON had not fulfilled their legal duty , under LAW , the Regulation on Police Patrols and the internal instructions , to protect victims of offences or accidents , intoxicated persons unable to move , and other vulnerable individuals . Even though they had a realistic possibility of providing assistance , they had failed to examine or identify the victims , call an ambulance , administer first aid or take them to a hospital , locate witnesses or secure the crime scene . Instead , they had moved the victims to the side and had falsely reported to the officer at the LOC police station that all the required measures had been taken .","On DATE the Izmaylovskiy ORG of GPE scheduled the opening of the trial for DATE . The judge allegedly told the applicant that his request to join the proceedings as a civil party would be examined at a later stage .","Hearings were held on DATE , DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE .","The trial court took testimony from a neighbourhood resident , the janitors PERSON and PERSON , ambulance doctors PERSON and PERSON . , who described the circumstances in which they had discovered the applicant and Mr N. The senior operational officer PERSON , who had been on duty at the PERSON police station on TIME to DATE , stated that no telephone call concerning CARDINAL young men on FAC had been recorded in the log . However , he had been replaced for TIME by the officer Mr Vancharin . He also testified that the police officers serving in the private - security department ( \u043e\u0442\u0434\u0435\u043b \u0432\u043d\u0435\u0432\u0435\u0434\u043e\u043c\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0439 \u043e\u0445\u0440\u0430\u043d\u044b ) had to give priority to the orders of the security co - ordinator rather than the orders of the officer - on - duty at the police station .","The officer Mr Vancharin confirmed that he had taken a call concerning the young men but had not recorded it in the log because it had not been placed through the emergency line . He had radioed to the patrol officers from the private - security department and told them to verify the information . They reported back that they had found CARDINAL drunk men and that the situation was under control . In response , he instructed them to continue patrolling . The security co - ordinator testified to the court that at TIME he had received an alarm signal and had dispatched the officers PERSON and PERSON to check it out .","On DATE ORG acquitted both police officers , having made the following assessment of the evidence :","\u201c ... [ T]he court considers that it has not been shown that the defendants PERSON and PERSON acted in the knowledge of the fact that [ the applicant and his friend ] were in a state that was dangerous for their life and health because they could not know it , as they only spent TIME on the scene in the night time and as no injuries were visible . They decided that [ the applicant and his friend ] were in a state of alcohol or drug intoxication ...","In support of their claim that Mr PERSON and PERSON made a false report [ to the officer - on - duty ] the prosecution referred only to the testimony by the witness Mr Vancharin , who was a police officer but who was not authorised to take any reports . However , he was replacing the officer - on - duty , in breach of the regulations of the LOC police station ...","Upon receipt of such information , an officer - on - duty has an obligation to record it in the registration log , to check it and to record the results of the check . The court considers that the officer - on - duty , upon receiving information from PERSON and PERSON that the situation was under control , was required to verify it and obtain credible information about the situation . Mr Vancharin , however , did not do that and did not relay that information or the results of the check to the actual officer - on - duty ... The court therefore lends credence to the testimony by PERSON and PERSON ... because in these circumstances Mr Vancharin had no interest in telling the truth . \u201d","On DATE ORG upheld the judgment on appeal in a summary fashion .","On DATE the chief medical officer of the emergency care unit informed the applicant \u2019s mother that an internal inquiry had established that the ambulance doctor had diagnosed the applicant on the basis of his friend \u2019s statements . As a result , he had underestimated the gravity of his condition . The doctor had been severely disciplined .","On DATE and DATE and DATE the public prosecutors at various levels informed the applicant \u2019s mother that the doctors of Hospital no . CARDINAL had committed no prosecutable offence and refused to institute criminal proceedings .","NORP By letter of DATE , the deputy head of ORG confirmed that a review of the medical care administered to the applicant at Hospital no . CARDINAL had not identified any defects or shortcomings .","Further to a complaint by the applicant \u2019s mother , on DATE the first deputy to the GPE prosecutor cancelled the decision of DATE , by which the institution of criminal proceedings had been refused , and instructed LOC prosecutor to open a criminal investigation into the offence under LAW of LAW ( failure to render medical assistance to a patient resulting in grave damage to his health ) .","On DATE a composite medical study was commissioned for the purpose of determining whether the applicant \u2019s health could have been harmed by belated and inadequate medical treatment at Hospital no . CARDINAL .","On DATE a panel of CARDINAL experts from the ORG of ORG began their work .","On DATE the investigator PERSON suspended proceedings because the person responsible could not be identified .","On DATE the experts\u2019 panel returned their findings based on the applicant \u2019s medical record ( no . DATE ) from Hospital no . CARDINAL , materials of the criminal case and information from attending physicians . The experts found , in particular , that an incomplete and contradictory description of the applicant \u2019s injuries upon his arrival at Hospital no . CARDINAL made it impossible to determine the exact origin , time and cause of his injuries . It could only be established that he had been hit on the head with a heavy blunt object . Moreover , a subsequent examination at ORG revealed CARDINAL broken thoracic vertebrae which had gone unnoticed at Hospital no . CARDINAL , where an X - ray examination had been indicated but never carried out .","The experts determined that , given the grave condition in which the applicant had been admitted , he should have been examined immediately by a neurosurgeon and other specialists for differential diagnosis of craniocerebral injury and intoxication and for decisions on urgent treatment . However , a neurosurgeon examined the applicant TIME later upon his arrival and in the following TIME no specialists saw him and no medical tests , not even the basic blood and urine tests , were carried out . Even the applicant \u2019s temperature was not taken . The experts determined as follows :","\u201c From the moment of arrival ( at TIME on DATE ) and until the beginning of preparation for surgery ( at TIME on DATE ) the [ applicant ] was not adequately and objectively examined , the real clinical diagnosis was not made ... and appropriate medical treatment was not indicated ... Prolonged passive observation of the [ applicant ] not accompanied by clinical examination led to drastic deterioration of his condition and , as a consequence , to belated surgical intervention not based on clinical and lab tests which resulted in markedly negative post - traumatic and post - surgery complications for the [ applicant ] ...","In the post - surgery period antibacterial treatment was indicated but given inconsistently and without appropriate supervision which , most likely , pre - determined subsequent development of CARDINAL inflammation of post - operative wounds , arachnoid membranes and medullary substances , osteomyelitis of the right parietal bone , etc ... \u201d","The experts also noted that there had been no objective basis for diagnosing the applicant with alcohol intoxication . Neither the ambulance doctor in his notes nor his colleagues in subsequent entries in the medical record mentioned alcohol breath . A reference to alcohol breath appeared for the first time in the partly illegible and incomplete report of a medical examination of DATE . However , that examination was carried out in breach of the applicable regulations . No treatment for intoxication was indicated and the intoxication diagnosis did not feature in any other documents . The credibility of the intoxication diagnosis was further undermined by the fact that the amount of alcohol allegedly found in the applicant \u2019s blood would have been lethal .","The experts concluded as follows :","\u201c The extent of damage resulting from the [ applicant \u2019s ] prolonged stay in a medical institution without adequate medical assistance can not be fully ascertained . It can only be asserted that his condition gravely deteriorated during that period and that irreversible brain changes progressed to the point where emergency surgery was required by life - saving indications ...","The present study identified a number of defects in the medical care dispensed to [ the applicant ] at Hospital no . CARDINAL of GPE \u2013 in particular , unjustified conservative treatment , incomplete examination , belated and incomplete diagnosis , belated surgical intervention , inadequate medical measures \u2013 which failed to arrest development of the grave post - traumatic process and contributed to an unfavourable outcome and the [ applicant \u2019s ] disability . However , it is not possible to measure the extent to which these defects affected the outcome because appropriate measurement methods do not exist . \u201d","At some point in DATE it transpired that the applicant \u2019s medical record from Hospital no . CARDINAL was lost . It had been removed by the investigator Mr PERSON from the hospital in DATE and produced to the experts for examination . It was then returned to the investigators , who were no longer able to locate it .","On DATE a deputy GPE prosecutor reversed the decision suspending the proceedings and asked that those responsible for delays and procedural violations be disciplined . On DATE an internal inquiry established that the investigator PERSON had unlawfully decided to discontinue the proceedings before the medical examination had been completed . The investigator received a reprimand and his superior was demoted .","On DATE the investigator Mr Shakhov from ORG of ORG took up the case . He wrote to the applicant \u2019s mother that those responsible for the loss of the medical record had been disciplined .","DATE . On DATE the investigator Mr PERSON commissioned a new medical study by the same experts and with the same questions . The previous study was considered inadmissible because it had been completed at the time when the proceedings had been suspended . On CARDINAL DATE the new study was completed . The experts returned the same findings . They also noted that their task had been hampered by numerous corrections of entries , in particular dates and times , in the medical records from ORG no . CARDINAL and because of inexplicable contradictions in those entries .","On DATE the investigator Mr Shakhov issued a decision suspending the proceedings on the ground that the authorised investigation period had expired . On DATE the decision was annulled by a supervising prosecutor .","The investigation was transferred to PERSON who suspended the proceedings on the same ground on DATE and DATE . A public prosecutor set aside his decisions on DATE and DATE .","On DATE the investigator noted that the initial forensic examination had not determined the extent of correlation between the deficiencies in the medical assistance provided to the applicant at Hospital no . CARDINAL and the damage to his health . He appointed a new medical examination by the experts from ORG of ORG and suspended the proceedings in the case .","On DATE the experts returned their findings which were based , in the absence of the original medical records , on the materials of the case file and extensive quotations from the original records in the text of the initial expert examination . The experts found that the applicant had suffered from a vascular pathology which had resulted in a subdural hematoma against the backdrop of a head trauma and alcohol intoxication . In their view , at the moment of the applicant \u2019s admission to Hospital no . CARDINAL , no urgent surgery was required . The hematoma was allowed to grow over a period of time under constant supervision by medical specialists who awaited the most propitious moment for brain surgery . The experts concluded that the findings of the initial examination had been \u201c objectively untenable \u201d and that the diagnosis and surgery had been carried out in a timely and precise fashion . On DATE the public prosecutor ordered the proceedings to be resumed .","Further decisions concerning the discontinuance of the proceedings on various procedural grounds were issued on DATE ( annulled on CARDINAL May ) and CARDINAL DATE ( annulled on DATE ) .","On DATE the investigator decided to commission a further forensic examination with a view to eliminating the discrepancies between the findings of the first and second experts\u2019 reports . It was entrusted to ORG at ORG . However , the ORG refused to conduct the examination in the absence of the original medical records . The director of ORG stated to the investigator that an examination on the basis of the case - file materials and previous findings by other experts would be \u201c methodologically incorrect and in breach of the existing practice of expert examinations \u201d .","On DATE the investigator granted the applicant the status of a victim in the proceedings and recognised his mother as his legal representative .","DATE . On DATE and DATE the investigator Mr PERSON decided to discontinue the proceedings on the ground that no offence had been committed . The decisions were set aside by supervising prosecutors .","The most recent decision on discontinuance of criminal proceedings , which the ORG has in its possession , was made by the investigator Mr Volk on DATE . He took stock of the existing evidence , including the testimony by the doctors PERSON , PERSON . and PERSON from ORG no . CARDINAL , the ambulance doctors , the applicant \u2019s friend Mr N. , the applicant \u2019s mother , and the applicant himself . The findings of the first and second forensic studies were extensively quoted , as were the reasons given by the federal centre for forensic examination for refusing to conduct a \u201c conciliatory \u201d study in the absence of the original documents . The investigator reached the following conclusion :","\u201c Despite the existence of substantial discrepancies in the above - mentioned findings by CARDINAL experts\u2019 commissions as to the origins and development of [ the applicant \u2019s ] disease and the professional level of treatment that was administered to him , neither commission could state that there was a link of causality between the treatment administered to [ the applicant ] and the consequences in the form of serious damage to the victim \u2019s health .","In these circumstances , the investigation finds that there are no objectively verifiable factual indications that Doctors K. , PERSON , and ORG no . CARDINAL failed to render medical assistance to [ the applicant ] without valid reasons , thus resulting in serious damage to his health , that is , that they committed the offence under LAW of LAW . \u201d","On DATE a supervising prosecutor quashed that decision and instructed Mr Volk to remedy the shortcomings in the investigation and , in particular , to locate the original medical documents .","Article CARDINAL of LAW defines the offence of non - provision of medical assistance to a patient as failure to provide medical assistance , without valid reasons , by the person who had a legal obligation to render such assistance . LAW concerns the situation in which such failure resulted in the patient \u2019s death or grave damage to his health .","Article CARDINAL concerns the offence of abandonment in a life - threatening situation , which is defined as the deliberate act of abandoning without assistance a person who finds himself or herself in a situation that endangers his or her life or limb and who is incapable of taking measures for self - preservation because of his or her young or old age , illness or helplessness , provided that the offender had the possibility of rendering assistance to that person and also a duty to take care of him or her .","Article CARDINAL defines the offence of professional negligence as non - performance or improper performance of professional duties entailing a substantial violation of the rights and legitimate interests of citizens .","Section CARDINAL provides that the police have , in particular , the duty to render assistance to victims of criminal and administrative offences and accidents , and to persons in a helpless state or in a state that is dangerous for their life or limb .","On arrival at the crime scene , a police patrol must render assistance to the victims , call an ambulance if necessary , identify possible witnesses and eye - witnesses to the crime , secure the site , report to the officer - on - duty and proceed in accordance with his instructions ( paragraph CARDINAL ) .","While administering first aid or transferring the victim to a medical institution , the police officer must examine the victim \u2019s clothing and exposed areas of the body with a view , in particular , to identifying him or her . If the victim shows no visible signs of life , the officer must firstly ascertain whether he is alive or not , without altering his position or that of surrounding objects ( paragraph CARDINAL ) .","Private - security departments attached to the police force are created for the protection of private property ( paragraph CARDINAL ) . Private - security forces comprise police officers as well as technical and support staff ( paragraph CARDINAL ) . Officers of private - security departments are recruited by ORG ( paragraph CARDINAL ) and they have the same rights as those conferred on the police officers under LAW , including the right to carry weapons and the right to arrest offenders ( paragraph CARDINAL) .","Before DATE LAW provided that a civil claim could be lodged after the institution of the criminal proceedings but before DATE pre - trial investigation ( LAW ) . After the amendments introduced by ORG no . CARDINAL-FZ of DATE , the time period for lodging a civil claim was extended up to the beginning of final pleadings in the first - instance court ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101283","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF GAFOROV v. RUSSIA","importance":3,"conclusion":"Preliminary objections joined to merits and dismissed (six month period;non-exhaustion of domestic remedies);Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-4;Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lived before his arrest in the town of GPE , GPE . He is currently residing in GPE .","In DATE the applicant lost his job at a telephone exchange in Khudzhand and started earning his living by printing various texts for people on his computer , including theses and extracts from the Koran .","NORP In DATE several persons were arrested in Khudzhand on suspicion of membership of ORG ut - GPE ( \u201c ORG \u201d ) , a transnational NORP organisation , banned in GPE , GPE and NORP republics . Subsequently , the applicant learnt that some of the arrestees had testified before the prosecuting authorities that he was a member of ORG and had printed various materials for it from the Internet . The applicant denies being a member of ORG .","On DATE the prosecutor 's office of GPE ( \u201c the PERSON prosecutor 's office \u201d ) instituted criminal proceedings against the applicant on suspicion of membership of an extremist organisation ( LAW ( \u201c ORG \u201d ) ) . In particular , the applicant was suspected of having actively worked with ORG by printing out leaflets and religious literature for that organisation with a view to their dissemination . The case was assigned the number CARDINAL .","On DATE the PERSON prosecutor 's office ordered the applicant 's placement in custody . Shortly thereafter the applicant was arrested and placed in the basement of ORG ( ORG ) . According to the applicant , he was held there for DATE . He was systematically beaten up and was tortured CARDINAL times with electricity . He was held in LOC with nothing to rest on , was refused access to the toilet for lengthy periods of time and received no food .","On DATE the prosecutor 's office of LOC ( \u201c the ORG prosecutor 's office \u201d ) opened a further criminal case against the applicant in connection with his alleged activities within ORG . In particular , the applicant was suspected of : having secretly studied extremist literature provided by other members of ORG ; having worked for the organisation as an IT specialist ; having printed out the organisation 's leaflets and other literature and secretly distributed it among non - members of the organisation ; having paid membership fees to the organisation and trained another member to work with the PC . On DATE the applicant was charged with membership of a criminal organisation banned owing to its extremist activities ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL ) , incitement to religious and other hatred ( Article CARDINAL \u00a7 CARDINAL ) and public appeals to overthrow the constitutional order and to engage in extremist activities ( Articles CARDINAL and CARDINAL ) . The criminal case was joined with case no . DATE and given the number DATE .","According to the applicant , in DATE he and other detainees were taken to a construction site for a recreation zone for officers of the ORG , where they were ordered to dig , working in a bending position . When they tried to straighten up , the guards beat them severely .","On DATE , fearing further beatings , the applicant escaped .","According to the applicant , his relatives told him that after his escape law enforcement officials had tortured his co - accused to find out where he had gone and whether they had helped him to make good his escape .","On DATE the Bobodzhon - Gafurovskiy prosecutor 's office instituted criminal proceedings against the applicant for escaping from custody . The decision stated that on DATE , \u201c while in custody at a DATE cottage [ \u0434\u0430\u0447\u043d\u044b\u0439 \u0443\u0447\u0430\u0441\u0442\u043e\u043a ] belonging to the ORG \u201d , the applicant had fled to an unknown destination .","On an unspecified date the criminal case against the applicant in connection with his alleged activities within ORG was transferred for examination to the Bobodzhon - Gafurovskiy District Court of GPE","By a decision of DATE PERSON put the applicant 's name on a wanted list and suspended the examination of the criminal case against him pending his arrest .","On DATE the Bobodzhon - Gafurovskiy prosecutor 's office charged the applicant with escape from custody .","It appears that the applicant was hiding in NORP until DATE , when he moved to GPE . On an unspecified date in DATE the applicant arrived in GPE .","On DATE the applicant was arrested in GPE as a person wanted by the Tajikistani authorities .","On DATE the Nagatinskiy deputy prosecutor questioned the applicant about the circumstances of his arrival in GPE . According to the applicant 's written explanation [ \u043e\u0431\u044a\u044f\u0441\u043d\u0435\u043d\u0438\u0435 ] of DATE , in DATE the ORG authorities had opened a criminal case against him on suspicion of membership of an extremist organisation . For DATE he had been held in custody . During that period he had been taken on a DATE basis to work at a construction site , from where he had escaped . In DATE the applicant had come to GPE to avoid criminal prosecution and to earn a living . He had not applied for NORP citizenship , refugee status or political asylum . The transcript bore the applicant 's signature . In the applicant 's submission , the explanation was compiled by the NORP authorities on the basis of material from his criminal case produced by the Tajikistani law enforcement authorities .","On DATE ORG ( \u201c the TPGO \u201c ) sent to ORG a request for the applicant 's extradition to NORP in connection with the charges concerning his membership of ORG . The letter stated that the applicant would be tried only on the charges for which his extradition was being sought , and that he would not be extradited to a third country without the consent of the NORP authorities .","On DATE the ORG sent their NORP counterpart an additional request for the applicant 's extradition on the charge of escaping from custody .","By a letter of DATE the applicant 's lawyer informed ORG that the applicant intended to challenge before the courts the refusal to grant him refugee status ( see below ) and requested them to take that fact into account when examining the extradition issue .","On DATE the deputy Prosecutor General of GPE ordered the applicant 's extradition to GPE . The decision , in its relevant parts , read as follows :","\u201c ... [ Mr ] ORG is charged with having actively participated in DATE in the activities of a criminal organisation \u201c NORP - ut - GPE PERSON \u201d , aimed at the violent seizure of state power and the overthrow of the constitutional order and banned on the territory of NORP by a court decision ...","...","The [ applicant 's ] actions are punishable under NORP criminal law and correspond to LAW of LAW ( membership of a criminal organisation ) ; LAW ( acts aimed at violent overthrowing of the constitutional order ) ; LAW ( public appeals in the media to engage in extremist activities ) ; LAW ) ( incitement to hatred and degrading treatment via the mass media , carried out by an organised group ) ; LAW ( membership of an extremist organisation ) ; LAW ( membership of an organisation banned by a court decision because of its extremist activities ) ; LAW ( financing terrorism ) . The above - mentioned offences carry penalties of over DATE imprisonment . The time - limits for [ the applicant 's ] prosecution under NORP and NORP legislation have not expired .","...","[ The applicant ] is charged with having absconded from custody ... on DATE ...","The [ applicant 's ] actions are punishable under LAW ( escape from custody of a person detained on remand ) and carry a penalty of over DATE imprisonment . The time - limits for [ the applicant 's ] criminal prosecution under NORP and NORP legislation have not expired . \u201d","Lastly , the decision stated that , according to ORG ( \u201c the ORG \u201d ) , the applicant had not obtained NORP citizenship , and concluded that there were no other grounds for not extraditing him to NORP .","On DATE the applicant appealed against the decision of DATE , alleging that , if extradited , he would be subjected to torture in breach of LAW . He averred , in particular , that he had described in detail the treatment to which he had been subjected while in custody in NORP and that ORG had disregarded those submissions and the relevant materials from international NGOs showing that the Tajikistani law enforcement authorities systematically tortured detainees . The applicant also submitted that the Tajikistani authorities were not able to provide effective guarantees against the risk of ill - treatment and unfair criminal proceedings . Lastly , he stated that the decision to extradite him had been taken despite the fact that his asylum application was pending .","By a letter of CARDINAL DATE the ORG guaranteed to their NORP counterpart that , if extradited , the applicant would not be persecuted on political , ethnic , linguistic , racial or religious grounds and that he would not be subjected to torture or inhuman or degrading treatment or punishment . The letter also noted that on DATE ORG had declared ORG a terrorist organisation and had banned its activities on the territory of NORP .","At a hearing on DATE ORG ( \u201c the ORG \u201d ) examined the applicant 's complaint about the decision to extradite him to GPE .","According to the hearing transcript , the applicant submitted to the court that after his arrest in DATE in NORP he had been severely beaten and on CARDINAL occasions tortured with electricity with a view to extracting a confession that he was a member of ORG . He had been held in the ORG basement for DATE . During his detention there he had been systematically beaten and insulted and had been allowed access to the toilet only twice a day . While still in detention , he had been taken to a construction site for an ORG recreation zone . There he and other detainees had worked laying the foundation for a sports centre ; they had also been ordered to mow grass . The applicant and other detainees had been systematically subjected to beatings . Unable to stand the beatings and the lack of food , the applicant had escaped . The applicant further stressed that he feared returning to NORP because after his escape several ORG officials had threatened his family . They had allegedly told his family members that if the applicant was caught , they would not leave him alive . An ORG officer who had beaten the applicant and who had been on duty on DATE of his escape had allegedly told the applicant 's sister that if he went to jail because of the applicant , he would kill the applicant 's whole family , once released .","At the hearing the applicant 's lawyer also stated that his client 's detention was unlawful because the authorities had failed to extend it properly , in breach of LAW ( \u201c CCrP \u201d ) and the decisions of ORG .","Having heard the applicant and his lawyer and granted their request to include in the case file reports from various NGOs and international organisations on the situation in NORP in relation to torture , ORG adjourned the examination of the complaint pending the outcome of the asylum proceedings .","By a faxed letter of CARDINAL DATE ORG informed ORG ( \u201c the MID \u201d ) about the applicant 's case and his allegations of the risk of torture were he to be extradited to NORP . ORG asked DATE to present their position and to assist the court in obtaining information from ORG on the issues raised by the applicant .","By a letter of the same date ORG asked ORG to submit its position and any relevant information on the applicant 's allegations concerning the risk of torture and inhuman and degrading treatment should he be extradited to NORP , and to verify those allegations via the relevant ORG authorities .","On DATE the MID replied to ORG that GPE had become party to almost all the international instruments on the protection of human rights and that it had thereby confirmed its intention to build a democratic and secular state based on respect for the rule of law . A post of ombudsman had been created . The MID did not have any information to indicate that \u201c the applicant 's civil rights would be violated if he was extradited \u201d . It does not appear that ORG replied to ORG request .","On DATE ORG examined the applicant 's complaint about the decision of DATE . The applicant and his lawyer attended the hearing","According to the hearing transcript , the applicant reiterated before the court his submissions concerning his alleged torture while in custody in NORP . He submitted that the fact of his previous torture and the threats to his family members proved that he ran a risk of being subjected to such treatment again , should the extradition decision be upheld . The applicant 's lawyer asked the court to release the applicant , stressing that he had been detained for a long period of time and that his detention had not been extended despite clear instructions from ORG in that respect .","ORG dismissed the applicant 's complaint . The decision , in so far as relevant , read as follows :","\u201c [ Mr ] ORG is charged with having , in the period from DATE in GPE , been an active member of the criminal organisation \u201c PERSON ut - GPE PERSON \u201d , founded with the aim of violent seizure of power and overthrowing the constitutional order , which [ organisation ] had been banned by a court from the territory of GPE because of its extremist activities ; [ the applicant ] is also charged with having financed the above organisation . During the relevant time period , being a member of that organised group and using the mass media , [ the applicant ] disseminated materials containing public appeals for the violent overthrow of the existing state regime to take control of the territory of GPE and seize power there . [ The applicant ] recruited citizens to the extremist organisation with a view to disrupting the constitutional order of GPE ; made public appeals to engage in extremist activities ; disseminated leaflets and other printed materials aimed at incitement to ethnic , racial , ... , religious hatred , degrading treatment , propaganda proclaiming the superiority of certain citizens based on their religious ... convictions , and the founding of an NORP state \u201c Caliphate \u201d on the territory of GPE .","The [ applicant 's ] actions are punishable under NORP criminal law and correspond to LAW [ of LAW ] ( participation in a criminal organisation ) ; LAW ( acts aimed at violent overthrow of the constitutional order ) ; LAW ( public appeals via the mass media to engage in extremist activities ) ; LAW ) ( incitement to hatred and degrading treatment committed by an organised group through the mass media ) ; LAW ( membership of an extremist organisation ) ; LAW ( membership of an organisation banned by a final court decision because of its extremist activities ) ; and LAW ( financing terrorism ) . The above - mentioned offences carry penalties of over DATE imprisonment . The time - limits for [ the applicant 's ] prosecution under NORP and Tajikistani law have not expired .","...","Moreover ... [ the applicant ] is charged with having absconded from custody ... on DATE ...","The above - mentioned actions of [ the applicant ] are punishable under LAW ( escape from custody of a person detained on remand ) and carry a penalty of over DATE imprisonment . The time - limits for [ the applicant 's ] criminal prosecution under NORP and Tajikistani law have not expired ...","The decision of ORG DATE is lawful and well - founded .","From the information submitted by the NORP ORG [ ORG ] and its GPE branch it follows that [ the applicant ] had not obtained NORP citizenship or applied for it in accordance with the law","At the court hearing [ the applicant ] explained that he had not applied for NORP citizenship ; he had been arrested in GPE as a person whose name had been put on an international wanted list ... ; [ he ] had not applied for refugee status before his arrest because he thought that he would not be granted it as a wanted person ; he was not a refugee , he had not been and was not being persecuted in the territory of GPE on political or any other grounds , except for his criminal prosecution ; he had left his place of residence voluntarily , having fled from custody \u2013 [ a fact ] which proves that [ the applicant ] was deliberately hiding in the territory of GPE from the Tajikistani law enforcement bodies .","Thus , there are no grounds stipulated in international agreements or the legislation of GPE to prevent [ the applicant 's ] extradition ...","...","The court has examined and dismissed [ the applicant 's ] arguments , supported by his lawyer ... with reference to the opinion [ \u0437\u0430\u043a\u043b\u044e\u0447\u0435\u043d\u0438\u0435 ] of CARDINAL DATE by specialist PERSON and materials confirming , in their opinion , that he should not be extradited to NORP on account of his possible persecution there . However , having applied to the ORG after his arrest pursuant to an international warrant , [ the applicant ] himself had explained that he feared extradition to NORP because of the possibility of his conviction leading to a long term of imprisonment .","Hence , the court considers that there is no well - founded fear of [ the applicant ] becoming a victim of persecution in NORP under LAW . Consequently , he does not satisfy the criteria to be granted refugee status because only a person who is not a NORP national and who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , ethnic origin , membership of a particular social group or political opinion , is outside the country of his nationality and is unable to avail himself of the protection of that country as a result of such events , can be recognised as a refugee .","Furthermore , the receiving country furnished an assurance that [ the applicant ] would be prosecuted only for the crimes with which he had been charged . Moreover , GPE is party to almost all international legal instruments on human rights , and has thereby reaffirmed its intention to build a secular democratic state based on the rule of law ; a post of ORG had been created there .","The issue of whether [ the applicant ] is guilty of the crimes in respect of which [ the Tajikistani authorities ] have requested his extradition can only be assessed by a court in the requesting country examining the merits of the criminal case against him . Hence , [ the applicant 's ] and his lawyer 's arguments that he is not guilty and that the charges against him are fabricated are not subject to this court 's examination . \u201d","The City Court decision was silent on the issue of the applicant 's detention .","On DATE the applicant appealed to ORG of GPE ( \u201c the ORG \u201d ) , submitting that ORG had failed to take into account his arguments , supported by materials from various NGOs , that he would be subjected to torture in the event of extradition . He also averred that ORG had disregarded that at the time of its examination of the case appeal proceedings against the ORG decision to refuse him refugee status had been pending .","On DATE the applicant lodged an additional appeal statement with ORG submitting that ORG had failed to assess PERSON opinion and materials from various NGOs attesting to the existence of systematic problems with torture in NORP and had limited its assessment to the DATE letter stating merely that \u201c there was no indication that [ the applicant 's ] civil rights would be violated in the event of his extradition \u201d . He stressed that ORG had confused the risk of torture with the risk of criminal prosecution , although the applicant 's position in that respect was unequivocal : he feared his extradition to NORP because he had already been subjected to torture there and he had fled to GPE for that reason . ORG conclusion that he had voluntarily left NORP was at odds with the fact that the applicant had fled from custody . Lastly , ORG had exceeded its jurisdiction in finding that the applicant did not satisfy the criteria to be granted refugee status , as it was for the civil courts to rule on that matter .","On DATE ORG of GPE ( \u201c the ORG \u201d ) examined the applicant 's appeal against the ORG decision . The applicant 's lawyer was present at the hearing , but the applicant did not attend . At the hearing the applicant 's lawyer filed a written request for release with ORG . He submitted that his detention in the absence of a judicial decision had exceeded the DATE limit set in LAW In that connection he referred to LAW CCrP , ORG decisions ORG . CARDINAL - CARDINAL and ORG ( see below ) and the fact that the latest court decision to place him in custody had been taken on DATE . He also complained that the ORG and ORG had refused to examine his complaints about his detention .","By a decision of the same date ORG dismissed the complaint , reproducing verbatim the text of the decision of DATE . The ORG decision was silent on the matter of the applicant 's detention .","On DATE the applicant filed an application for asylum with ORG of ORG ( \u201c the GPE FMS \u201d ) , stating that he could not return to NORP , where he had been subjected to ill - treatment . In particular , he submitted that in DATE he had been arrested by law enforcement officials who had tortured him with electricity and severely beaten him . DATE he had been transferred to the MNS , where he had been kept in a damp basement together with CARDINAL other persons . He had not been fed and had been allowed access to the toilet only twice a day . The applicant and other detainees were systematically beaten up with a view to extracting confessions about their involvement with ORG , to which they had finally had to confess because of the beatings . The ORG officers had forced the applicant and his fellow detainees to work on their construction site and had beaten them if they did not work properly . In DATE , while at a construction site , he had escaped because he could no longer endure the violence .","In an interview with an official of the GPE FMS on DATE , the applicant reiterated and confirmed his earlier submissions","On DATE the GPE ORG refused to grant the applicant asylum , finding that the reason for his request was his fear of being sentenced to a lengthy term of imprisonment if extradited . It further noted that when questioned by ORG officials , the applicant submitted that he had been unlawfully arrested by the NORP law enforcement officials and that he had fled from custody because he had been severely ill - treated . The ORG concluded that the grounds referred to by the applicant did not constitute well - founded fear of being persecuted in his home country .","On DATE the applicant appealed to the ORG of GPE ( \u201c the LOC \u201d ) against the decision of DATE , submitting that the NORP authorities were persecuting him on religious grounds in connection with his alleged membership of ORG , a banned religious organisation . Referring to LAW , he stressed that the migration authority had disregarded his consistent and convincing submissions in respect of the ill - treatment to which he had been subjected . Knowing that LAW made no provision for a detainee 's transportation to court hearings concerning their civil claims , the applicant did not request ORG to secure his presence .","On DATE the ORG examined the applicant 's complaint in the presence of his lawyer and dismissed it . The applicant was not brought to the hearing . The court found that in examining the applicant 's application the GPE ORG had obtained from ORG and their Tajikistani counterpart materials concerning his criminal prosecution in NORP . Those ORG bodies had not confirmed that the Tajikistani authorities were persecuting NORP nationals because of their religious beliefs , or torturing them or treating them inhumanely in connection with criminal proceedings against them . Although the applicant had arrived in GPE in DATE , he had applied for asylum only after his arrest with a view to extradition . In sum , the applicant had failed to adduce convincing reasons showing that he had well - founded fears of being persecuted in NORP on political , racial , religious , national or ethnic grounds or because of his membership of a particular social group , and had only applied to the migration authorities because of his criminal prosecution .","On DATE the applicant appealed against the decision of CARDINAL DATE , submitting that ORG had disregarded his detailed and consistent submissions concerning the illtreatment to which he had been subjected while in custody in NORP and his persecution on religious grounds . He also averred that the district court had disregarded a number of reports of ORG bodies and NGOs attesting to the widespread practice of ill - treatment of detainees by law enforcement authorities in NORP .","DATE . On DATE ORG set aside the decision of DATE and remitted the case at first instance for fresh examination .","On DATE ORG upheld the migration authority 's refusal to grant the applicant asylum , reproducing almost verbatim the reasoning of its decision of DATE . The court also noted that as the applicant only feared criminal prosecution and thus did not qualify for asylum it would not attach any weight to his submissions concerning the risk of ill - treatment in NORP in the event of extradition and the general human rights situation in that country .","The applicant appealed against the decision . Referring to reports of various NGOs , he stressed that the problem of ill - treatment of detainees persisted in NORP and that he feared his extradition not only because of the general situation in the country but also because of his own experience of ill - treatment at the hands of the ORG officials , who were persecuting him on religious grounds . However , ORG had refused to take that information into account and limited its assessment to the information provided by the NORP State authorities .","On DATE officers of the ORG High Commissioner for Refugees ( \u201c the ORG \u201d ) interviewed the applicant in the remand facility in connection with his application for international protection .","On DATE ORG upheld the decision of DATE in the presence of the applicant 's lawyer . The ORG decision , in its relevant part , stated :","\u201c On DATE [ Mr ] ORG , a national of ORG , held in GPE in GPE , applied for refugee status .","In his questionnaire [ \u0430\u043d\u043a\u0435\u0442\u0430 ] and report form [ \u043e\u043f\u0440\u043e\u0441\u043d\u044b\u0439 \u043b\u0438\u0441\u0442 ] [ the applicant ] stated that there was a real risk of his persecution by law enforcement officials who had arrested him in DATE in Khudzhand and charged him with being a member of ORG . Moreover , [ the applicant ] stated that he feared criminal prosecution and had been subjected to ill - treatment while in detention [ in NORP ] .","In arriving at its conclusions the [ GPE FMS ] examined information submitted by ORG and concerning [ the applicant 's ] prosecution by the ORG prosecutor 's office on various charges under Articles of LAW .","There is no indication of [ the applicant 's ] persecution on religious grounds in the Bobodzhon - Gafurovskiy prosecutor 's office 's decision of DATE to charge the applicant [ with his activities within ORG ] .","From the impugned decision [ of the GPE FMS ] it transpires that in arriving at its conclusions the authority took into account information from the [ NORP ] Prosecutor General 's Office and their Tajikistani counterpart .","In examining [ the applicant 's ] complaint , the [ District ] court correctly established that the applicant had not referred to any humanitarian reasons to be granted temporary asylum in GPE , such as precise details of his personal persecution by the Tajikistani authorities , [ or stated ] that in the event of his return there existed a real risk to his personal safety from the [ Tajikistani ] authorities . He had not justified his application for temporary asylum by his state of health or the need for medical assistance . He also failed to submit any evidence that there were obstacles to his returning to NORP . \u201d","On DATE the applicant applied to the GPE FMS for temporary asylum . The outcome of those proceedings is unclear .","On DATE the ORG office informed the applicant 's lawyer that it had examined her client 's application for international protection . The examination established that the applicant was \u201c outside his country of nationality due to well - founded fear of being persecuted by the authorities of his country for reasons of imputed political opinions \u201d , that he was \u201c unable to return to GPE and thus \u201c eligible for international protection under the ORG mandate \u201d .","On DATE the Nagatinskiy ORG of GPE ordered the applicant 's placement in custody pending extradition , with reference to ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL of the NORP CCrP and LAW of ORG ( \u201c the GPE Convention \u201d \u2013 see LAW below ) . The court stated , in particular , that the applicant was charged under LAW with a crime carrying a sentence of imprisonment , that he had fled from custody , did not have a permanent place of residence or registration in GPE and might , consequently , again abscond to avoid prosecution . It further stated that the need to place the applicant in custody was also justified by his eventual extradition to NORP , and that the related proceedings had been instituted following the NORP authorities ' petition under LAW of LAW . The decision did not specify the term of the applicant 's detention and stated that it was open to appeal before ORG within DATE after its delivery . There is no indication that the applicant challenged the decision on appeal .","On DATE , the Simonovskiy District Court of GPE ordered the applicant 's placement in custody pending extradition , referring to LAW ORG and LAW . The court stated that ORG was verifying the materials in respect of the applicant 's extradition and that no grounds preventing it had been established . On DATE the Nagatinskiy ORG had ordered the applicant 's placement in custody pending receipt of the formal request for his extradition under LAW of LAW . By the time of the examination of the case by ORG , that request had been received . The applicant was charged with having escaped from custody which , under LAW , was punishable with over DATE imprisonment . Furthermore , the applicant had absconded , he did not have a permanent place of residence or a permanent job in GPE and his name was on the international list of wanted persons . Hence , the applicant 's requests for application of a non - custodial preventive measure were unfounded and he was to be remanded in custody . The decision did not set a time - limit for the applicant 's detention and stated that it was open to appeal before ORG within DATE after its delivery . There is no indication that the applicant challenged the decision on appeal .","On DATE the applicant complained to ORG that his detention in the absence of a judicial decision had exceeded the DATE term set in LAW He referred to LAW decisions nos . CARDINAL - CARDINAL and CARDINAL-O - P ( see the section on Relevant Domestic Law below ) and the fact that the latest court decision to place him in custody had been taken on DATE . He requested his immediate release .","On DATE the ORG disallowed the applicant 's complaint , finding that he had failed to comply with the formal requirements for lodging a civil claim , laid down in the Code of Civil Procedure . The applicant was invited to rectify the shortcomings and informed of his right to appeal against the decision .","On DATE the applicant complained about his detention to the Nagatinskiy ORG . In particular , he averred that the latest detention order authorising his placement in custody was dated DATE and that neither that decision nor the previous CARDINAL dated DATE specified the term of his detention . In any event , since DATE the Nagatinskiy prosecutor 's office had not requested the courts to extend his detention pursuant to LAW , so it had become unlawful after the expiry of the CARDINAL initially authorised DATE terms ; that is to say that out of DATE the applicant had spent in custody , DATE of that detention had been unlawful . Furthermore , the ORG had refused to examine the applicant 's complaint about detention and ORG had likewise disregarded his request for release submitted at the hearing of DATE . Relying on Articles QUANTITY CARDINAL of the Convention , the ORG 's case - law , ORG CARDINAL and CARDINAL of the ORG and the practice of ORG , the applicant insisted that his detention had been unlawful , that he had not been provided with an effective remedy to complain about it and that the applicable legislation did not meet the requisite standards of quality of the law . Lastly , he argued that the extradition check against him had been finalised on DATE and that after that date no action was taken with a view to extraditing him .","On DATE the Nagatinskiy ORG refused to examine the applicant 's complaint . It held firstly that the applicant had failed to appeal against the decision of DATE within the required time - limits . As to the alleged inaction of the prosecutor 's office , it was open to the applicant to complain about it under LAW CCrP to ORG , which had territorial jurisdiction over the matter .","On DATE the applicant appealed against that decision to ORG .","On DATE the applicant complained to ORG , reiterating his submissions made in the complaint of CARDINAL DATE .","By a letter of CARDINAL DATE ORG returned the applicant 's complaint of CARDINAL DATE , stating that in the GPE criminal proceedings were conducted in accordance with the provisions of the ORG and that the applicant had failed to refer to any provisions of the ORG in his submissions .","On DATE the applicant complained to ORG about his detention , averring that he had been held in custody for DATE and that DATE of that detention had been unlawful because the prosecutor 's office had failed to request the courts to extend it . He also stressed that the decision to extradite him had become final in DATE , after which date no action had been taken with a view to extraditing him .","On DATE ORG dismissed the applicant 's appeal against the decision of DATE . It held , in particular , that it was open to the applicant to complain about his detention to a court having territorial jurisdiction or to an appeal court .","On DATE ORG replied to the applicant that his detention had been authorised first by the Nagatinskiy and then by ORG , pursuant to LAW According to LAW ORG , the maximum term of detention of persons charged with particularly serious crimes was DATE . ORG had decided on the applicant 's extradition on DATE , that is within the required time - limit . The applicant 's ensuing detention was prompted by his appeals to the courts against the extradition order and by the decision of ORG to apply Rule CARDINAL of ORG . As to ORG of DATE ( see below ) , it was applicable only to persons in respect of whom the NORP authorities were carrying out an extradition check , and not to those in respect of whom ORG had already issued an extradition order . In the applicant 's case ORG had decided on DATE to extradite him and that decision was to be enforced .","DATE . On DATE the ORG to the President of GPE ( \u201c the ombudsman \u201d ) wrote to ORG stating , in particular , that ORG had recently found a breach of LAW on account of the unsatisfying quality of the law in several cases involving persons detained pending extradition . Yet the practice continued , in breach of the applicable NORP legislation , of keeping in custody foreign nationals whose detention on remand had not been extended . The ombudsman opined that the problem lay in the domestic authorities ' inconsistent practice in applying the relevant legislation , and had persisted even after ORG Ruling no . ORG Ruling no . CARDINAL ( see Relevant Domestic Law below ) . The ombudsman referred to the GPE , GPE , PERSON and NORP cases , which were pending before the Court , in which the term of the applicants ' detention pending extradition had exceeded the DATE maximum term laid down in LAW","The ombudsman further stressed that on CARDINAL DATE the DATE maximum detention term was about to expire for the applicant in the present case and that the domestic courts had twice authorised his remand in custody without setting any time - limit for his detention . He also stated that the Government were justifying the detention on remand of the applicants in the above - mentioned cases by the fact that ORG had indicated to them under LAW to suspend their extradition . However , nothing in ORG Rules provided for the respondent ORG 's obligation to hold detainees whose extradition was suspended in custody in breach of the NORP legislation . Lastly , the ombudsman asked ORG to carefully examine the situation of the persons mentioned in his letter , in particular with regard to the extension of their detention for an unlimited period of time , and to further improvement of the legislation and its correct application in order to prevent possible violations of the Convention .","By a letter of CARDINAL DATE the Deputy Prosecutor General of GPE replied to the ombudsman . The letter , in so far as relevant , read as follows :","\u201c ...","... the decisions to extradite the applicants in the cases mentioned [ in your letter ] were taken within the time - limits established by LAW ORG , the lawfulness of those decisions was verified by the courts and those decisions are bound to be executed . To release the above - mentioned persons from custody would entail breach by GPE of its international obligations concerning extradition .","The possibility to apply the provisions of the CCrP in respect of the time - limits for the detention of persons held in custody pending extradition was first mentioned in LAW no . CARDINAL-O ... In its Ruling ... no . CARDINAL-O ORG stated that in its previous Ruling no . CARDINAL-O it had not , and could not have , established what particular provisions of the ORG were to regulate the procedures and time - limits for the detention of persons in custody pending extradition ... as it had no jurisdiction in the matter ...","ORG , in its replies of DATE and DATE to ORG requests for clarification , explained that in deciding on procedures and time - limits for the detention of persons detained pending extradition , the authorities were to apply the provisions of the CCrP. However , this issue had never been examined by the Plenary of ORG and the practice of the domestic authorities in this respect had not been studied or summarised .","Until DATE there was no uniform judicial practice on this category of cases in different regions of GPE . Some judges requested that the time - limits for detention be extended , others refused to extend those time - limits , considering it unnecessary .","On DATE , following ORG Ruling no . CARDINAL ... , ORG office sent out to prosecutors in all regions of GPE an information letter explaining the order on extending the time - limits for the detention of persons in respect of whom the extradition check was pending and the decision to extradite was not yet final ... Further time - limits for the detention of a person pending extradition are regulated by LAW of the CCrP.","The lengthy detention of Mr PERSON , Mr GPE , Mr PERSON , Mr PERSON and [ the applicant ] Mr A.Gaforov ... is at the present moment a consequence of ORG application of Rule CARDINAL of the Rules of Court pending the examination of their cases [ by ORG ] . \u201d","On DATE the PERSON district prosecutor ordered the applicant 's release from custody , finding that the time - limits for his detention under LAW of the ORG had expired and that there was no reason to extend his detention .","On DATE the Babushkinskiy ORG dismissed the prosecutor 's request to confine the applicant to the detention centre for foreign nationals [ \u0446\u0435\u043d\u0442\u0440 \u0441\u043e\u0434\u0435\u0440\u0436\u0430\u043d\u0438\u044f \u0438\u043d\u043e\u0441\u0442\u0440\u0430\u043d\u043d\u044b\u0445 \u0433\u0440\u0430\u0436\u0434\u0430\u043d ORG \u043f\u043e \u0433. GPE ] . The court held that only persons charged with administrative offences could be held in the above - mentioned centre and that , in any event , the maximum time - limits for the applicant 's detention had expired pursuant to ORG - CARDINAL of the CCrP.","It appears that the applicant was released shortly thereafter .","LAW of the CCrP governs the application of preventive measures . Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond , continue to engage in criminal activities , threaten witnesses or hinder the investigation ( LAW ) . When deciding on the necessity to apply a preventive measure , it is necessary to take into account the gravity of the charges and the various personal details of the person concerned ( LAW . Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A request for placement in custody should be lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) LAW CARDINAL \u00a7 CARDINAL ) . The request should be examined by a judge of a district court or a military court of a corresponding level ( LAW ) . A judge 's decision on placement in custody may be challenged before an appeal court within DATE ( Article CARDINAL \u00a7 CARDINAL ) . The period of detention pending investigation of a crime can not exceed DATE ( Article CARDINAL \u00a7 CARDINAL ) but may be extended DATE by a judge of a district court or a military court of a corresponding level , further to a request lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) ( LAW ) . Further extensions up to DATE may be granted at the request of an investigator , with the approval of a prosecutor of GPE , only if the person is charged with a serious or particularly serious criminal offence or offences ( LAW ) .","LAW of the CCrP lays down the procedure by which acts or decisions of a court or public official in criminal proceedings may be challenged . Acts or omissions of a police officer in charge of the inquiry , an investigator , a prosecutor or a court may be challenged by \u201c parties to criminal proceedings \u201d or by \u201c other persons in so far as the acts and decisions [ in question ] touch upon those persons ' interests \u201d ( LAW ) . Those acts or omissions may be challenged before a prosecutor ( LAW ) . Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings , or to discontinue them , or any other decision or inaction capable of impinging upon the rights of \u201c parties to criminal proceedings \u201d or of \u201c hindering an individual 's access to court \u201d may be subject to judicial review ( LAW ) .","DATE . Under LAW , upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his or her deputy is to decide on the preventive measure in respect of the person whose extradition is sought \u201c in accordance with the established procedure \u201d . If a foreign court 's decision to place a person in custody is appended to the extradition request , a prosecutor is entitled to place that person under house arrest or remand him or her in custody without the NORP courts validating his decision ( LAW ) .","LAW ( Law no . CARDINAL-FZ of DATE ) lays down the procedure and conditions for the detention of persons arrested under the ORG on suspicion of criminal offences ; it also applies to persons suspected or accused of criminal offences who are remanded in custody ( LAW Persons suspected or accused of criminal offences have a right to lodge complaints with a court or another authority concerning the lawfulness and reasonableness of their detention ( Article CARDINAL ) ) .","The Constitutional Court examined the compatibility of LAW of the CCrP with LAW and reiterated its constant case - law that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .","In ORG view , the guarantees of the right to liberty and personal integrity set out in DATE and LAW , as well as the legal norms of LAW of the ORG on preventive measures , were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG , or in excess of the time - limits fixed therein .","The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .","ORG dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That was a matter for the courts of general jurisdiction .","In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .","By a decision ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 ) of CARDINAL DATE ORG of GPE granted ORG request and classified a number of international and regional organisations as terrorist organisations , including ORG ( also known as ORG ) , and prohibited their activities on NORP soil . It held that ORG aimed to overthrow non - NORP governments and to establish \u201c NORP governance on an international scale by reviving a Worldwide NORP Caliphate \u201d , in the first place in the regions with predominantly NORP populations , including GPE and other members of ORG .","By a Directive Decision No.CARDINAL adopted by LAW of ORG of GPE on DATE , ( \u201c Directive Decision of DATE \u201d ) ORG issued several instructions to the courts on the application of LAW The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke LAW ORG to challenge a refusal to institute criminal proceedings or a decision to terminate them . The ORG stated that whilst the bulk of decisions amenable to judicial review under LAW also included decisions to institute criminal proceedings , refusals to admit a defence counsel or to grant victim status , a person could not rely on LAW to challenge a court 's decision to apply bail or house arrest or to remand a person in custody . It was further stressed that in declaring a specific action or inaction of a law enforcement authority unlawful or unjustified , a judge was not entitled to annul the impugned decision or to oblige the official responsible to annul it but could only request him or her to rectify the indicated shortcomings . Should the authority concerned fail to comply with the court 's instructions , an interested party could complain to a court about the authority 's inaction and the latter body could issue a special decision [ \u0447\u0430\u0441\u0442\u043d\u043e\u0435 \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 ] , drawing the authority 's attention to the situation . Lastly , the decision stated that a prosecutor 's decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under LAW","In a Directive Decision No . CARDINAL , adopted by LAW of ORG of GPE on DATE ( \u201c Directive Decision of DATE \u201d ) , it was stated that , pursuant to LAW ORG , only a court could order placement in custody of a person in respect of whom an extradition check was pending and the authorities of the country requesting extradition had not submitted a court decision to place him or her in custody . The judicial authorisation of placement in custody in that situation was to be carried out in accordance with LAW ORG and following a prosecutor 's petition to place that person in custody . In deciding to remand a person in custody a court was to examine if there existed factual and legal grounds for applying the preventive measure . If the extradition request was accompanied by a detention order of a foreign court , a prosecutor was entitled to remand the person in custody without a NORP court 's authorisation ( LAW ORG ) for a period not exceeding DATE , and the prosecutor 's decision could be challenged in the courts under LAW In extending a person 's detention with a view to extradition a court was to apply LAW","Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :","\u201c ORG ...","Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ,","Recommends that governments of member states , while applying their own procedural rules , ensure that the following guarantees are complied with in their legislation or practice :","An effective remedy before a national authority should be provided for any asylum seeker whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...","NORP the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","ORG for Human Rights issued a Recommendation ( CommDH(CARDINAL)CARDINAL ) on DATE concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :","\u201c CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . \u201d","For other relevant documents , see the ORG 's judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL ORG","When performing actions requested under LAW , to which GPE and GPE are parties , a requested official body applies its country 's domestic laws ( LAW ) .","Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .","The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .","A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE from the date of placement in custody ( Article CARDINAL \u00a7 CARDINAL ) .","The \u201c Conclusions and Recommendations : NORP \u201d , issued by ORG on DATE ( CAT \/ C \/ TJK \/ CO\/CARDINAL ) , pointed out the following areas of concern regarding the human rights situation in the country :","\u201c The definition of torture provided in domestic law ... is not fully in conformity with the definition in LAW , particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity .","...","There are numerous allegations concerning the widespread routine use of torture and ill - treatment by law enforcement and investigative personnel , particularly to extract confessions to be used in criminal proceedings . Further , there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill - treatment .","...","The ORG is also concerned at :","( a ) NORP The lack of a legal obligation to register detainees immediately upon loss of liberty , including before their formal arrest and arraignment on charges , the absence of adequate records regarding the arrest and detention of persons , and the lack of regular independent medical examinations ;","( b ) Numerous and continuing reports of hampered access to legal counsel , independent medical expertise and contacts with relatives in the period immediately following arrest , due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials ;","( c ) Reports that unlawful restrictions of access to lawyers , doctors and family by ORG agents are not investigated or perpetrators duly punished ;","( d ) The lack of fundamental guarantees to ensure judicial supervision of detentions , as the ORG is also empowered to exercise such oversight ;","( e ) NORP The extensive resort to pretrial detention that may last up to DATE ; and","( f ) The high number of deaths in custody .","...","There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the LAW by both law enforcement officials and investigative bodies .","...","There are reports that there is no systematic review of all places of detention , by national or international monitors , and that regular and unannounced access to such places is not permitted . \u201d","The report by ORG entitled \u201c The State of The World 's Human Rights \u201d , released in DATE , in so far as relevant , reads as follows :","\u201c ...","There were continuing reports of unlawful arrests and widespread and routine torture or other ill - treatment by law enforcement officers , several of whom were sentenced to prison terms .","...","PERSON , a member of ORG ( IRP ) , died in police custody in DATE after he was detained for questioning by law enforcement officers in PERSON . Initially the officers claimed that he had committed suicide by jumping from a third floor window . The IRP claimed that an autopsy report indicated that he had been beaten and ill - treated , and alleged that he had been pushed from the window . The general prosecutor 's office subsequently announced that following an investigation CARDINAL officers had been detained . \u201d","In its \u201c World Report DATE NORP \u201d of DATE ORG stated as follows :","\u201c NORP 's human rights situation continues to be characterized by lack of access to justice , due process violations , incommunicado detention , and ill - treatment in custody . The government interferes with opposition political parties . Government harassment of non - traditional religious groups and NORP groups that are independent of state - controlled religious bodies has intensified .","...","Torture and Ill - treatment in Custody","Human rights organizations and lawyers continue to receive reports of arbitrary arrests , violations of detention procedures and fair trial standards , and credible , serious allegations of ill - treatment and torture in detention . Defense lawyers themselves are subject to threats and harassment if they insist on effective assistance of counsel .","NORP has not amended its law on torture to comply fully with ORG recommendations to the country in DATE . Law enforcement officials can be charged with \" abuse of professional competency \" ( criminal code article CARDINAL ) , but not with torture . National legislation does not prohibit torture evidence from being admitted at trial .","Impunity for ill - treatment in detention continues to be widespread . There were , however , CARDINAL cases in DATE in which law enforcement officers were prosecuted for ill - treatment . In DATE police lieutenant ORG was sentenced to DATE imprisonment by a court in PERSON for the unlawful detention and ill - treatment of CARDINAL detainees . In another case in DATE , CARDINAL police officers were each sentenced to DATE imprisonment for beating and torturing with electrical shock a CARDINAL-year - old boy in the capital , GPE . All CARDINAL men were convicted under article CARDINAL .","...","Actions in the Name of Countering Terrorism and Extremism","In DATE law enforcement bodies continued to arrest individuals simply because they were accused of possessing leaflets of ORG ut - GPE , a banned NORP organization , and CARDINAL alleged PERSON ut - GPE members were sentenced to DATE imprisonment each for \" incitement of ethnic and religious hatred \" and \" membership in extremist organizations . \" In the first case of a child being imprisoned for membership in ORG ut - GPE , ORG , a DATE boy , was sentenced to DATE imprisonment .","In DATE ORG banned another CARDINAL organizations , including ORG , as \" extremist . \" In DATE a small NORP group , Mavlavi , was banned on the grounds that it holds \" unsanctioned gatherings . \"","NORP and NORP citizens continue to be arrested for alleged membership in ORG . In these highly political cases involving terrorism charges , the suspects are frequently denied procedural protection and the right to a fair trial , and routinely suffer from inhumane treatment in detention .","...","Visiting NORP in DATE , ORG High Commissioner for Human Rights PERSON called on the government to ensure better access to justice and to allow local and international monitors , including ORG , to visit detention places . PERSON , the ORG special rapporteur on freedom of religion or belief , visited NORP in DATE , concluding that religious communities and individuals faced \" challenges , \" and underscoring the importance of the government 's ensuring that \" especially vulnerable individuals \" be protected \" from harassment by non - State actors in the name of religion . \"","In DATE ORG issued CARDINAL decisions on applications alleging abuses by NORP authorities . It found that in both PERSON v. NORP , and GPE and GPE v. GPE the victims had been subjected to torture and unfair trial . The decisions urge NORP authorities to ensure effective remedy to the applicants , including compensation , and in the PERSON case to immediately release the victim . At this writing the government has not implemented the decisions . \u201d","In its DATE report of DATE ORG , an NGO established in NORP , provided the following information on the situation regarding torture in detention in that country :","\u201c In NORP PERCENT of victims of torture are able to prove that fact and have the perpetrators punished ... This conclusion is based on the findings of the research of practice of ill - treatment by law enforcement officials at arrest and during the preliminary investigation carried out by the ORG of lawyers and the public foundation \u201c ORG \u201d . Having interviewed the victims , the researchers came to the following conclusions .","The detainees stated that they had been subjected to the following methods of illtreatment : psychological pressure PERCENT ; being hit , kicked and beaten with truncheon on different parts of the body \u2013 PERCENT ; threats of physical violence \u2013 PERCENT . PERCENT of victims stated that they had been simultaneously subjected to various forms of torture , in particular , torture with electricity , threats and beatings .","PERCENT of victims of torture and ill - treatment suffered from psychological disorder , CARDINAL of the interviewed had bodily injuries . PERCENT of victims of torture or illtreatment had grave bodily injuries . There were also fatal cases [ among those examined by the researchers ] . There were suspiciously many cases of suicides committed in custody .","The research showed that the perpetrators were mostly unpunished . The main reason for this was that the majority of victims of torture were not complaining to law enforcement bodies . PERCENT [ of the interviewed ] submitted such complaints . The main reasons for failure to complain were fear of reprisals ( PERCENT ) , lack of trust towards the law enforcement officials ( PERCENT ) , lack of knowledge of the relevant procedures ( PERCENT ) .... \u201d","The World Report chapter on NORP by ORG released in DATE , in so far as relevant , reads as follows :","\u201c Actions in the Name of Countering Terrorism and Extremism","Following a recommendation by the prosecutor general , ORG designated PERSON , a group that supports the reestablishment of the ORG , or NORP state , by peaceful means , an \" extremist \" organization . The government continued to arrest alleged PERSON ut - GPE members and convict them either of sedition or incitement to racial , ethnic , or religious hatred , often simply for possessing the organization 's leaflets .","...","Torture and Deaths in Custody","NORP 's definition of torture does not comply fully with ORG recommendations to the country in DATE . In a positive move , in DATE the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings .","Experts agree that in most cases there is impunity for rampant torture in NORP . In CARDINAL of the few cases that reached the courts , CARDINAL policemen in GPE province were convicted in DATE for ill - treating minors ; CARDINAL of the CARDINAL received a fouryear prison sentence , and the other a suspended sentence .","NGOs and local media reported CARDINAL deaths in custody in DATE , including the death from cancer of the ex - deputy chair of ORG Revival PERSON . The party alleged his arrest in DATE was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery .","In DATE decision ( PERSON v. NORP ) ORG found that NORP violated the rights , including freedom from torture , of CARDINAL applicants , CARDINAL of them minors when they were arrested . NORP failed to cooperate with the committee 's consideration of the complaint . Similar violations were established in DATE decision ( NORP and GPE v. NORP ) \u201d .","In DATE ORG released its World Report DATE , where the chapter on NORP , in so far as relevant , states :","\u201c Torture is routinely used by law enforcement officials , and the NORP government continues to deny human rights groups access to places of detention .","...","Torture","Torture is practiced by law enforcement officers and within the penitentiary system in a culture of near - impunity . It is often used to extract confessions from defendants , who during initial detention are often denied access to family and legal counsel . To date the NORP government has refused all requests from human rights groups to visit detention sites , interrogation rooms and prisons .","NORP 's definition of torture does not fully comply with recommendations made to the country by ORG in DATE . In a small sign of a progress , local and international human rights groups recently completed a campaign to document instances of torture in GPE , as part of a twoyear project funded by ORG . That project , which was run in GPE by ORG , determined that over DATE there had been CARDINAL cases of torture .","Freedom of Religion","...","There continued to be reports of the NORP authorities prosecuting alleged members of PERSON , an international NORP organization that is banned in several countries in the region , and sentencing them to long prison terms on questionable evidence . \u201d","NORP The DATE GPE ORG on ORG , released on DATE , in so far as relevant , reads as follows :","\u201c The government 's human rights record remained poor , and corruption continued to hamper democratic and social reform . The following human rights problems were reported : ... torture and abuse of detainees and other persons by security forces ; impunity of security forces ; denial of right to fair trial ; harsh and life - threatening prison conditions ; prohibition of international monitor access to prisons ; ...","The law prohibits [ cruel , inhumane or degrading treatment or punishment ] , but some security officials used beatings or other forms of coercion to extract confessions during interrogations , although the practice was not systematic . Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture .","In GPE region , CARDINAL suspects arrested in a murder case claimed investigators tortured them seeking to extract confessions . CARDINAL suspect claimed an investigator threatened to ' ruin ' his daughter if he did not confess to a crime . The same individual stated he lost toenails as a result of torture while in custody . The courts dismissed the individual 's claim of torture , and he was convicted of murder and other crimes and sentenced to DATE in prison . Several individuals held in GPE city jails also claimed they were beaten while in custody . Articles in the criminal code do not specifically define torture , and the country 's law enforcement agencies have not developed effective methods to investigate allegations of torture . According to a report during DATE by ORG , ' Experts agreed that in most cases there is impunity for rampant torture in NORP ' .","In an DATE court decision ( PERSON v. NORP ) ORG found that the government violated the human rights , including freedom from torture , of CARDINAL adults and CARDINAL minors . The committee also noted that the government failed to cooperate with the committee and that similar allegations were substantiated in an DATE court decision ( GPE and GPE v. NORP ) . Denial of access to detention centres impeded efforts to determine if any improvements had occurred since then .","...","ORG ( ORG ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions . Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions , but their representatives were limited to administrative or medical sections , and ORG personnel accompanied them . The government did not sign an agreement with ORG ( ICRC ) to allow free and unhindered access to prisons and detention centres , and the ORG 's international monitoring staff has not returned to the country since DATE .","Detainees and inmates described harsh and life - threatening prison conditions , including extreme overcrowding and unsanitary conditions . Disease and hunger were serious problems , but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons . Organizations such as ORG reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor .","...","The government placed few checks on the power of prosecutors and police to make arrests . The criminal justice system operated under the criminal procedure code based on a DATE NORP law . Individuals reported that some prosecutors and courts pressed questionable criminal charges and that some officials influenced judges inappropriately to get convictions . In DATE the government approved a new criminal procedure code to replace the existing code in DATE .","...","Victims of police abuse may submit a formal complaint in writing to the officer 's superior or ORG . Most victims chose to remain silent rather than risking retaliation by the authorities .","...","By law prosecutors are empowered to issue arrest warrants , and there is no requirement for judicial approval of an order for pre - trial detention . Police may detain a suspect without a warrant in certain circumstances , but a prosecutor must be notified within TIME of arrest . After a warrant is issued , the police may hold a suspect TIME before arraignment . Defence advocates alleged that prosecutors often held suspects for longer periods and only registered the initial arrest when the suspect was ready to confess . Pre - trial detention may last as long as DATE in exceptional circumstances .","...","Prosecutors oversee pre - trial investigation and have the right to initiate criminal proceedings . Individuals have the right to an attorney upon arrest and the government must appoint lawyers for those who can not otherwise afford CARDINAL . In practice the government provided few attorneys for public defence , and these attorneys were generally ineffective . There is no bail system , although criminal detainees may be released conditionally and restricted to their place of residence pending trial . The typical length of pre - trial detention was DATE .","According to the law , family members are allowed access to prisoners only after indictment ; officials occasionally denied attorneys and family members access to detainees . Authorities held detainees charged in crimes related to national security incommunicado for long periods without formally charging them . In DATE , after relatives of former citizen ORG sought his whereabouts for DATE , the ORG admitted that ORG had been in state custody the entire period . ORG was sentenced to DATE imprisonment for espionage and attempting to overthrow the government , but he claimed security personnel obtained his confession to the crimes under physical and psychological duress .","The government generally provided a rationale for arrests , although some detainees claimed that authorities falsified charges or inflated minor problems to make politically motivated arrests . Some police and judicial officials regularly accepted bribes in exchange for lenient sentencing or release .","...","Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests . Opposition parties and local observers claimed the government selectively prosecuted political opponents . There was no reliable estimate of the number of political prisoners , but former opposition leaders claimed there were CARDINAL such prisoners held in the country , including former fighters of the ORG .","In DATE PERSON , deputy chairman of the unregistered ORG , died in prison after DATE of confinement for insulting and defaming President PERSON in a DATE unsent , unpublished letter . The government claimed his death was the result of natural causes . PERSON , head of ORG and former chairman of PERSON , the country 's state - run gas monopoly , remained in prison following his unlawful extradition from GPE and DATE conviction for corruption . Former interior minister PERSON remained in prison serving a CARDINAL-year sentence for crimes against the state and high treason following his DATE closed trial . \u201d","The chapter \u201c NORP \u201d in the ORG report \u201c The State of the World 's Human Rights \u201d , released in DATE , states , in so far as relevant :","\u201c The ORG continued to exert tight control over the exercise of religion . Reports of torture and other ill - treatment by law enforcement officers continued .","...","Torture and ill - treatment","Report of torture and ill - treatment by law enforcement officials continued , in particular , to extract confessions during TIME , the maximum period suspects could be held without charge .","On DATE , PERSON , a specialist in FAC , dies after being arrested by the police . He had been walking along the street when the police stopped him and accused him of being drunk . He protested , and CARDINAL policemen bundled him into a police car . ORG claimed that he died of a heart attack on the way to the police station . His mother reported injuries on her son 's face and body , and on DATE the Minister of the ORG announced an investigation into possible \u201c death through negligence \u201d . There was no public information about the progress of the investigation by DATE . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76748","languageisocode":"ENG","respondent":"ALB","branch":"CHAMBER","date":2006,"docname":"CASE OF BESHIRI AND OTHERS v. ALBANIA","importance":2,"conclusion":"Violation of Art. 6-1 (non-enforcement);Not necessary to examine Art. 13;Violation of P1-1;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE ( GPE ) and GPE ( GPE ) .","NORP The applicants\u2019 father owned a villa with a surface area of QUANTITY . m and CARDINAL adjacent plots of land measuring approximately QUANTITY . m and QUANTITY . m respectively . DATE the ORG father rented the villa to ORG \u2019s father .","On an unspecified date , as the villa was uninhabitable , the ORG granted the ORG father a compulsory loan of QUANTITY ( ALL ) for renovation of the villa .","In DATE ORG constructed CARDINAL additional buildings on the plot of land measuring CARDINAL sq . m. By a decision of CARDINAL DATE ORG allocated the additional buildings to PERSON","As a result of the applicants\u2019 father \u2019s failure to repay the debt , the villa was nationalised by virtue of decision no . CARDINAL of DATE . DATE ORG \u2019s family continued to live in the villa as tenants of a ORG - owned property .","In DATE , pursuant to ORG ( \u201c LAW \u201d ) , the applicants lodged a claim with ORG on ORG ( PERSON I GPE dhe PERSON ) .","On DATE ORG , holding that the nationalisation of the applicants\u2019 father \u2019s villa had been illegal , awarded the applicants the villa ( with a surface area of QUANTITY . m ) and the plot of land measuring QUANTITY m , subject to the repayment of ALL CARDINAL ( representing the outstanding amount of their father \u2019s unpaid debt to the ORG which had led to the nationalisation of the properties ) . With regard to the plot of land measuring CARDINAL sq . m , in view of ORG \u2019s investment in the additional building , the Commission upheld his right of first refusal on the purchase of the land .","On an unspecified date in DATE , ORG , the tenant of the villa which had been allotted to the applicants , brought a civil action before ORG , claiming property rights over the villa and the adjacent plot of land . Moreover , he alleged that the ORG \u2019s decision of CARDINAL DATE should be declared null and void , in so far as it was in breach of LAW of LAW .","On DATE ORG declared the ORG \u2019s decision of CARDINAL DATE null and void . It found that according to an expert report , the outlays by the ORG and ORG \u2019s father on structural changes and annexes to the original building amounted to PERCENT of the property \u2019s original value . The ORG \u2019s decision was therefore held to have been in breach of LAW of LAW .","On DATE ORG , having examined an appeal by the applicants alleging a violation of their property rights , upheld ORG decision and dismissed the appeal .","The applicants appealed to ORG of ORG , which on DATE quashed the decisions of the above courts . It held that the decisions had been based on an expert report which was illogical and contained incorrect calculations and accordingly sent the case back for rehearing .","On DATE ORG , rehearing the case , declared the ORG \u2019s decision null and void . Relying on a new expert report , it held that the nationalisation of the applicants\u2019 father \u2019s villa had been in accordance with substantive law requirements at the material time and that , consequently , the applicants could not benefit from the process of restitution of property . Moreover , the court upheld the applicants\u2019 property rights over the CARDINAL adjacent plots of land and , pursuant to section CARDINAL of LAW , decided on their right to receive compensation in one of the forms provided for by law .","On DATE ORG of ORG dismissed an appeal by the applicants as being ill - founded .","The applicants lodged an appeal with ORG on the basis of LAW ( f ) of LAW . They alleged that ORG decision and ORG judgment had been unconstitutional .","On DATE ORG , in accordance with LAW ( Law no . CARDINAL of DATE ) , decided de plano to declare the ORG complaint inadmissible as being \u201c outside its jurisdiction \u201d .","In a letter of CARDINAL DATE the applicants informed the ORG that the authorities had failed to comply with the final decision of DATE relating to the compensation issue .","The NORP LAW reads as follows :","\u201c CARDINAL . The right of private property is protected by law .","Property may be acquired by gift , inheritance , purchase , or any other ordinary means provided for by LAW .","The law may provide for expropriations or limitations in the exercise of a property right only in the public interest .","Expropriations , or limitations of a property right that are equivalent to expropriation , shall be permitted only in return for fair compensation .","A complaint may be lodged with a court to resolve disputes regarding the amount \/ extent of compensation due . \u201d","\u201c In the protection of his constitutional and legal rights , freedoms and interests , and in defence of a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . \u201d","\u201c State bodies shall comply with judicial decisions . \u201d","\u201c The Constitutional Court shall decide on : ...","( f ) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . \u201d","\u201c CARDINAL . Within DATE from the date when this LAW enters into force , ORG , guided by the criteria laid down in LAW , shall pass laws for the just resolution of different issues relating to expropriations and confiscations carried out before the approval of LAW .","Laws and other normative acts relating to expropriation and confiscation that were passed before the entry into force of this LAW shall be applied provided they are compatible with the latter . \u201d","ORG ( GPE p\u00ebr kthimin dhe kompensimin e pron\u00ebs ) underwent several amendments during DATE .","LAW of DATE ( Law no . CARDINAL of DATE , as amended by PERSON no . DATE ) , as in force at the time , in its relevant parts reads as follows :","\u201c Former owners and their legal heirs have the right of ownership . A former owner shall have the right either to have allocated the original land or to be awarded compensation in kind if CARDINAL of the following conditions is met :","( CARDINAL ) the alleged property was pasture , meadow , forestry land , or agricultural or non - agricultural land ;","( CARDINAL ) the alleged property was not subject to PERSON no . CARDINAL of DATE ;","( CARDINAL ) the alleged property is currently ORG - owned ;","( CARDINAL ) the alleged property has been designated as suitable for construction and is situated within the boundaries of a city .","The restitution or compensation in kind shall not exceed QUANTITY . m pursuant to section CARDINAL(CARDINAL ) of Decree no . CARDINAL of DATE , as amended by PERSON no . DATE . \u201d","\u201c Former owners shall be entitled to restitution of their former buildings without having to repay outlays made by the ORG or other owners on structural alterations , annexes or floor additions to former private buildings , where such outlays amount to PERCENT of the building \u2019s value .","Former owners shall be entitled to restitution of their former buildings once they have repaid PERCENT of the value of outlays , where such outlays amount to PERCENT of the building \u2019s value . The value of the outlays shall be calculated on the basis of construction prices at the time of the building \u2019s restitution . A building shall remain in co - ownership where the value of such outlays is PERCENT of the building \u2019s value . .... The courts shall have authority to resolve disputes between parties . \u201d","\u201c Where a building site or agricultural land that has been reclassified as a building site is occupied by a permanent construction , the former owners shall be compensated , within the limit fixed for expropriation , by CARDINAL of the following methods :","( a ) by means of ORG bonds , equivalent to the compensation owed , and with first option of acquiring shares in ORG enterprises being privatised by the ORG or in other activities carried out through the granting of loans ;","( b ) by means of an equivalent plot of land or building site near to an urban area , in accordance with the general urban - development regulations ;","( c ) by means of an equivalent plot of land in a tourist zone , in accordance with the general urban - development regulations .","Any outstanding amount after the application of ( b ) and ( c ) above shall be compensated according to other methods established by LAW .","ORG shall have the authority to define more detailed rules for determining the methods and deadlines for such compensation . \u201d","The new Property Act enacted in DATE provides for CARDINAL forms of restitution of property , namely the return , under certain circumstances , of the original property and compensation in the event of the impossibility for the authorities to return the original property . The LAW provides for CARDINAL forms of compensation : ( a ) a property of the same kind ; ( b ) a property of any other kind ; ( c ) shares in ORG - owned companies ; ( d ) the value of a ORG - owned property in the privatisation process , ( e ) a sum of money ( section CARDINAL ) .","The Act instituted ORG ( PERSON per GPE dhe GPE e Pronave ) , composed of CARDINAL members elected by ORG . Its role is to decide on the lawfulness of district GPE decisions . At district level decisions on restitution and compensation claims are to be taken by ORG ( section CARDINAL ) .","In accordance with the LAW , the persons entitled to claim restitution or compensation have to lodge an application for such purpose with ORG by DATE ( section DATE ) . The Act grants the committee discretion to decide which CARDINAL of the forms of compensation should be granted . The entitled persons have to express in writing their preferences regarding the form of compensation to be awarded . ORG decision may be appealed against to ORG ( section CARDINAL ) .","NORP In order to comply with the GPE decisions awarding payment of pecuniary compensation , section CARDINAL of the above - mentioned LAW provides for the establishment of a DATE ORG , whose aim is to provide financial support for such awards .","The above - mentioned LAW was scrutinised by both ORG and ORG .","On DATE ORG , concluded that LAW had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions given before its entry into force .","In DATE the Government ( as newly elected on DATE ) introduced in ORG a new bill on ORG , which proposes several amendments to LAW . The bill , which is currently pending before ORG , will be discussed in DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77266","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF ZAKHAROV v. RUSSIA","importance":3,"conclusion":"Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in LOC .","On DATE the applicant privately sent a complaint to the deputy Governor of GPE . He reported on usurpation of a plot of communal land , adjacent to a public street in Iksha , by the private person Ms V. The applicant alleged that PERSON , the head of the Iksha town council , not only had failed to stand up for the rights of other Iksha residents but actively contributed to making the usurpation possible . In particular , PERSON had allegedly brought about premature retirement of a land surveyor who had objected to the usurpation ; she had interfered with the activities of court bailiffs who had come to reclaim the usurped land ; she had assisted ORG in obtaining title to the land by adverse possession ; and she had ostensibly made an exemption for ORG from regulations prohibiting planting of vegetables in the protected areas . The letter concluded as follows :","\u201c Such outrageous conduct of the appointed ( not elected ! ) head of the town council vis - \u00e0 - vis the town residents , DATE in full view of everyone \u2013 discredits the power that appointed PERSON and sets an example of breaking the law with impunity provided that you can ' make a deal ' with the council head .","I ask you to state your opinion on ORG 's anti - social behaviour and assist [ us ] in returning the land plot into communal use , notwithstanding her opposition ... \u201d","On DATE PERSON lodged a civil action against the applicant for refutation of information damaging to her honour and dignity and compensation for non - pecuniary damage . She maintained that the applicant 's letter had contained untrue facts and insulting value - judgments , which could have damaged her reputation in the eyes of her hierarchical superiors , thereby causing her non - pecuniary damage .","On DATE the ORG of the GPE Region granted PERSON defamation action , finding that the applicant had failed to prove the truthfulness of his allegations contained in the letter of CARDINAL DATE . Assessing the allegedly insulting value - judgments in the concluding paragraphs of the letter , the court held as follows :","\u201c In addition to failing to substantiate the said allegations with any proof , [ the applicant ] used expressions which , in their form and contents , are not appropriate in respect of an official , which the plaintiff is ...","Also , the court considers that the judgments used by the [ applicant ] in his letter \u2013 such as ' A. knows that by law protected areas may not be occupied , but ostensibly makes an exemption for ORG ' , ' such outrageous conduct ... discredits the power that appointed PERSON and sets an example of breaking the law with impunity provided that you can ' make a deal ' with the council head ' , ' A. 's anti - social behaviour ' \u2013 are not only untrue because the [ applicant ] failed to prove that these facts had occurred , but also insulting for ORG ; this information , phrased as insults , damages dignity and honour of the plaintiff , and it was sent to a deputy Governor of LOC , which might have led to belittlement of the plaintiff 's authority in the eyes of regional managers ... \u201d","The court bound the applicant to make a rectification by way of a letter to the deputy Governor of LOC and to pay MONEY ( EUR CARDINAL ) to Ms A. for non - pecuniary damage .","NORP The applicant lodged a statement of appeal , maintaining that his letter had stated his subjective view on the existing problem .","On DATE ORG partly upheld , on the applicant 's appeal , the judgment of DATE . It did not analyse the truthfulness of the factual allegations and grounded its judgment on the CARDINAL expressions quoted above in the last paragraph of the judgment of DATE . The appeal court struck down the obligation to send a rectification , but upheld the award in respect of non - pecuniary damage .","Article CARDINAL guarantees freedom of ideas and expression .","Article CARDINAL provides that NORP citizens shall have the right to petition in person , as well as to submit individual and collective appeals to , ORG authorities and local self - government bodies .","Article CARDINAL provides that an individual may apply to a court with a request for the rectification of \u201c statements \u201d ( \u201c \u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f \u201d ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .","Resolution no . CARDINAL of ORG of DATE \u201c on certain issues that have arisen in the course of judicial examination of claims for the protection of honour and dignity of individuals , and professional reputation of individuals and legal entities \u201d ( as amended on DATE , in force at the material time ) established that the notion \u201c dissemination of information \u201d employed in LAW was understood as the publication of statements or their broadcasting , inclusion in professional references , public speeches , applications to ORG officials and communication in other forms , including oral , to CARDINAL another person . It specified , however , that \u201c communication of such information to the person whom it concerned could not be treated as dissemination \u201d ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90435","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2008,"docname":"SERDYUK v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger","text":["The applicant , Mr PERSON Serdyuk , is a NORP national who was born in DATE and lives in PERSON .","In DATE the applicant , at that time a military officer , was engaged in emergency relief operations at the site of the GPE nuclear plant disaster , within the \u201c GPE alienation zone \u201d ( \u0442\u0440\u0438\u0434\u0446\u044f\u0442\u0438\u043a\u0456\u043b\u043e\u043c\u0435\u0442\u0440\u043e\u0432\u0430 \u0437\u043e\u043d\u0430 \u0430\u0431\u043e \u0437\u043e\u043d\u0430 \u0432\u0456\u0434\u0447\u0443\u0434\u0436\u0435\u043d\u043d\u044f ) .","On DATE the Cabinet of Ministers adopted Resolution no . CARDINAL on the Procedure for ORG ( \u201c GPE identity cards \u201d ) to Victims of the Chernobyl Nuclear Plant Disaster ( \u043f\u043e\u0441\u0432\u0456\u0434\u0447\u0435\u043d\u043d\u044f \u0443\u0447\u0430\u0441\u043d\u0438\u043a\u0430 \u043b\u0456\u043a\u0432\u0456\u0434\u0430\u0446\u0456\u0457 \u043d\u0430\u0441\u043b\u0456\u0434\u043a\u0456\u0432 \u0430\u0432\u0430\u0440\u0456\u0457 \u043d\u0430 \u0427\u043e\u0440\u043d\u043e\u0431\u0438\u043b\u044c\u0441\u044c\u043a\u0456\u0439 \u0410EC ) .","On DATE ORG \u041f\u043b\u0435\u043d\u0443\u043c \u0412\u0435\u0440\u0445\u043e\u0432\u043d\u043e\u0433\u043e \u0421\u0443\u0434\u0443 \u0423\u043a\u0440\u0430\u0457\u043d\u0438 ) adopted Resolution no . CARDINAL \u201c On Judicial Practice on ORG Facts that are of LAW \u201d . According to this resolution , certificates acknowledging a person \u2019s status as a GPE relief worker could be issued on the basis of a court judgment establishing participation of the person concerned in any kind of GPE relief work .","In DATE the applicant applied to the GPE ORG of Chernigiv ( PERSON \u0440\u0430\u0439\u043e\u043d\u043d\u0438\u0439 \u0441\u0443\u0434 PERSON , hereafter \u201c the FAC \u201d ) seeking a declaratory judgment , acknowledging the fact that he had been involved in the GPE relief works .","In its ruling of DATE ORG acknowledged the fact that in DATE the applicant had been engaged for TIME in operations near the GPE nuclear power plant . This decision was mainly based on witness evidence .","On DATE and on the basis of this ruling , a GPE identity card acknowledging his status as a GPE relief worker was issued to the applicant . It entitled him to special State benefits and social payments .","On DATE the Cabinet of Ministers amended Resolution no . CARDINAL of DATE by adopting ORG no . CARDINAL . By virtue of these amendments , court decisions establishing direct participation in any GPE relief work were removed from the list of grounds upon which a GPE identity card could be issued . In ORG no . CARDINAL , ORG further ordered the commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster ( ORG \u0437 \u0441\u043f\u0456\u0440\u043d\u0438\u0445 \u043f\u0438\u0442\u0430\u043d\u044c \u0432\u0438\u0437\u043d\u0430\u0447\u0435\u043d\u043d\u044f \u0441\u0442\u0430\u0442\u0443\u0441\u0443 \u043e\u0441\u0456\u0431 , \u044f\u043a\u0456 \u0431\u0440\u0430\u043b\u0438 \u0443\u0447\u0430\u0441\u0442\u044c \u0443 \u043b\u0456\u043a\u0432\u0456\u0434\u0430\u0446\u0456\u0457 \u043d\u0430\u0441\u043b\u0456\u0434\u043a\u0456\u0432 \u0430\u0432\u0430\u0440\u0456\u0457 \u043d\u0430 \u0427\u043e\u0440\u043d\u043e\u0431\u0438\u043b\u044c\u0441\u044c\u043a\u0456\u0439 \u0410\u0415\u0421 , hereafter \u201c the GPE disputes commissions \u201d ) of ORG from the Consequences of the Chernobyl Disaster ( PERSON \u0443 \u0441\u043f\u0440\u0430\u0432\u0430\u0445 \u0437\u0430\u0445\u0438\u0441\u0442\u0443 \u043d\u0430\u0441\u0435\u043b\u0435\u043d\u043d\u044f \u0432\u0456\u0434 \u043d\u0430\u0441\u043b\u0456\u0434\u043a\u0456\u0432 \u0430\u0432\u0430\u0440\u0456\u0457 \u043d\u0430 \u0427\u043e\u0440\u043d\u043e\u0431\u0438\u043b\u044c\u0441\u044c\u043a\u0456\u0439 \u0410\u0415\u0421 , hereafter \u201c ORG ) to undertake a case - by - case review of GPE identity cards granted previously on the basis of a judicial ruling .","On DATE , in the context of this review process , the GPE disputes commission annulled the applicant \u2019s GPE identity card , finding that the period during which he had been involved in emergency relief operations ( TIME of work in the alienation zone ) was insufficient for the GPE relief worker status . This decision was amenable to an appeal to a court of general jurisdiction .","On DATE ORG amended its Resolution of DATE to the effect that courts were no longer competent to establish facts related to entitlement to a GPE identity card .","On DATE the applicant unsuccessfully challenged the decision to annul his GPE identity card before the Radiansky ORG of GPE ( ORG \u0440\u0430\u0439\u043e\u043d\u043d\u0438\u0439 \u0441\u0443\u0434 PERSON ) who found the impugned decision lawful and reasonable . The applicant \u2019s subsequent appeal to ORG ( \u041a\u0438\u0457\u0432\u0441\u044c\u043a\u0438\u0439 \u043c\u0456\u0441\u044c\u043a\u0438\u0439 \u0441\u0443\u0434 ) was dismissed on DATE .","On DATE the applicant filed a request for review of its decision of DATE with ORG on the ground of new circumstances . He stated that he had learned in DATE that his work in DATE in CARDINAL villages situated not far from GPE also counted for the calculation of the overall period of relief works .","On DATE ORG granted the applicant \u2019s request , quashed the judgment of DATE and reopened the proceedings . The hearing was scheduled for CARDINAL DATE . By judgment of DATE the ORG established the fact that the applicant had participated in relief works in the alienation zone and had thus been involved in relief works for a period sufficient for eligibility for the GPE relief worker status . As no appeal was brought , this ruling became enforceable on DATE , whilst it remained possible for DATE as from DATE to file an appeal in cassation with ORG .","On DATE and on the basis of the judgment of DATE , the applicant filed a further request for a GPE identity card with ORG , which informed him on DATE that his request had been transmitted to ORG from the Consequences of the Chernobyl Disaster of ORG \u0443 \u0441\u043f\u0440\u0430\u0432\u0430\u0445 \u0437\u0430\u0445\u0438\u0441\u0442\u0443 \u043d\u0430\u0441\u0435\u043b\u0435\u043d\u043d\u044f \u0432\u0456\u0434 \u043d\u0430\u0441\u043b\u0456\u0434\u043a\u0456\u0432 PERSON \u043a\u0430\u0442\u0430\u0441\u0442\u0440\u043e\u0444\u0438 ORG \u043e\u0431\u043b\u0430\u0441\u043d\u043e\u0457 \u0434\u0435\u0440\u0436\u0430\u0432\u043d\u043e\u0457 \u0430\u0434\u043c\u0456\u043d\u0456\u0441\u0442\u0440\u0430\u0446\u0456\u0457 ; hereafter \u201c the ORG \u201d ) .","On DATE the ORG refused to issue a GPE identity card to the applicant as , pursuant to the applicable Resolution of the Cabinet of Ministers , a court ruling could not serve as a ground for issuing a card . By letter of DATE , it further informed the applicant that , if he wished to file a fresh application for a GPE identity card , he should substantiate the period of time during which he had allegedly been involved in relief work in the alienation zone by submitting either a mission order to the alienation zone or a salary slip showing extra payments for having worked in this zone . Although the applicant could have filed an appeal with the civil court against the decision of DATE , he did not do so .","On DATE ORG , acting on a cassation appeal lodged by the ORG , quashed the judgment of DATE and remitted the case for a fresh consideration , indicating that courts were not competent to establish facts for the purposes of obtaining the status of a GPE relief worker .","On DATE ORG , in the parties\u2019 presence , gave a ruling in which it refused to entertain the applicant \u2019s request to establish the legal fact of his participation in the GPE relief works , holding that it lacked competence in the matter . It pointed out that , for this purpose , a special procedure had been established and that any claim should be substantiated by specific prescribed documents . It further referred to the Resolution of ORG . The applicant appealed .","On DATE the ORG of Appeal ( GPE \u0441\u0443\u0434 ORG \u043e\u0431\u043b\u0430\u0441\u0442\u0456 ) , in the applicant \u2019s presence , upheld this decision . It stated , in particular , that specific administrative bodies had been designated by law to determine whether or not a person was entitled to a GPE identity card , and that the courts were not competent to determine such issues . It further pointed out that decisions taken by such an administrative body could be appealed before the courts under the terms of LAW . Although this ruling was immediately enforceable , an appeal in cassation lay with ORG within a DATE time - limit . The applicant did not avail himself of this remedy .","LAW provides that justice is administered exclusively by the courts . The delegation of the functions of the courts , and also the appropriation of these functions by other bodies or officials is not permitted . The jurisdiction of the courts extends to all legal relations that arise in the ORG .","In accordance with LAW , ORG is the highest judicial body within the system of courts of general jurisdiction in GPE . As prescribed by law , it examines in cassation proceedings decisions taken by lower general jurisdiction courts . Under LAW , ORG is composed of the President of ORG , all judges of ORG , the Presidents of the higher specialised courts and their first deputies . ORG provides , inter alia , the courts of general jurisdiction with recommendations and practice directions and supervises the correctness of any recommendation or practice direction issued by higher specialised courts .","ORG . CARDINAL and CARDINAL , and the text of ORG of ORG are set out in the ORG \u2019s judgment of CARDINAL DATE in the case of PERSON v. GPE ( no . GPE , \u00a7 \u00a7 DATE , CARDINAL and DATE ) .","According to ORG Resolution no . CARDINAL of DATE , which amended its previous ORG no . CARDINAL of DATE , decisions of special administrative bodies competent to establish legal facts in relation to entitlement to the status of GPE relief worker can be appealed before the first instance civil court and , subsequently , the civil court of cassation . At the material time , these courts had full jurisdiction both as regards the facts and the law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88780","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF MOISEYEV v. RUSSIA","importance":3,"conclusion":"Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violations of Art. 6-1;Violation of Art. 6-3-b and 6-3-c;No Violation of Art. 7;Violations of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","On DATE Mr C. , a NORP diplomatic officer , was apprehended by ORG of GPE ( \u201c the ORG \u201d ) while receiving certain materials from the applicant who was then deputy head of ORG in ORG of GPE . On DATE Mr C. was declared persona non grata and left GPE .","On DATE at TIME a group of CARDINAL armed ORG officers entered and searched the applicant \u2019s flat . They apprehended the applicant and escorted him to the FAC remand prison .","On DATE ORG dismissed the applicant for serious breaches of the NORP legislation on the civil service .","On DATE investigators from ORG interrogated the applicant as a suspect in a high treason case .","On DATE a deputy Prosecutor General remanded the applicant in custody . The applicant \u2019s detention was subsequently extended on several occasions .","On DATE the applicant was charged with high treason in the presence of his legal - aid counsel , PERSON . He was accused of having disclosed classified information to a NORP intelligence agent .","On DATE the applicant retained Mr PERSON as his defence counsel .","On DATE , DATE and CARDINAL DATE the investigator ordered seizure of the applicant \u2019s car and garage , MONEY and a computer from his home , as security in respect of possible forfeiture of the applicant \u2019s property following a conviction .","On DATE , DATE and CARDINAL DATE the applicant attempted to challenge the orders authorising his continued detention on remand .","On DATE and DATE ORG examined the applicant \u2019s complaints and rejected them as unsubstantiated . The court found that the investigator had correctly imposed the preventive measure , having regard to the gravity of the charge and the applicant \u2019s potential to abscond or interfere with the investigation .","On DATE the pre - trial investigation was completed and the applicant was granted access to the case file .","On DATE the bill of indictment was served on the applicant . The applicant was refused permission to take a copy of the indictment to his cell because the document contained classified information . The applicant could examine the indictment at the special department ( \u0441\u043f\u0435\u0446\u0447\u0430\u0441\u0442\u044c ) in the remand centre .","On DATE ORG found the applicant guilty as charged , sentenced him to CARDINAL years\u2019 imprisonment and ordered confiscation of his property .","On DATE and other dates the applicant and his lawyers appealed against the conviction .","On DATE ORG of GPE quashed the conviction and remitted the case to the trial court for a fresh examination . It found as follows :","\u201c In finding [ the applicant ] guilty of the offence under LAW , the [ first - instance ] court noted that ... DATE and DATE [ the applicant ] had ... communicated information and documents containing ORG secrets to the NORP intelligence service . The [ first - instance ] court gave only a general list of information and documents ... , without specifying which information and documents and when [ the applicant ] had communicated . As the offences imputed to [ the applicant ] were continuous in time and spanned the period from DATE to DATE , during which period NORP legislation evolved , the determination of these issues is of crucial importance for the case .","Pursuant to LAW ... the list of information constituting ORG secrets was to be defined in a federal law . Such a list was first established in the federal law \u2018 On the introduction of changes and amendments to the State Secrets Act\u2019 of DATE . Hence , until that date there was no list of information constituting ORG secrets that met the requirements of the LAW . As there is no indication in the judgment about when exactly [ the applicant ] transmitted information and documents , it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing a list of ORG secrets and compatible with the requirements of the LAW was in force .","The case file shows that ... experts from ORG prepared their report [ on the classified nature of the information transmitted by the applicant ] on the basis of LAW of DATE , the President \u2019s decree of CARDINAL DATE and ORG resolution of DATE , and the expert from ORG of ORG of ORG worked on the basis of LAW of DATE , LAW of DATE and the President \u2019s decree of CARDINAL DATE .","However , it has to be taken into account that LAW of DATE on which the above experts relied contained no list of information constituting ORG secrets . LAW ( text of DATE ) referred only to the information that could be classified as ORG secrets . The conclusions of these reports ... have to be re - assessed with regard to the above considerations .","Taking into account that the actus reus of the offence under LAW only comprises acts involving ORG secrets , the [ first - instance ] court should have determined which information and documents listed in the indictment and communicated by [ the applicant ] could have been considered as ORG secrets in accordance with the requirements of the laws in force at the material time . \u201d","On DATE ORG began hearing the applicant \u2019s case . Presiding Judge PERSON and CARDINAL lay judges sat on the bench .","The applicant applied to the court for release pending trial . On DATE the court rejected the application . It held that detention on remand could be imposed on a person charged with high treason on the sole ground of the dangerousness of the offence and that there were therefore no grounds to release the applicant .","On DATE the applicant requested the court to change the measure of restraint applied to him . On DATE the court dismissed the request , finding that the dangerousness of the offence alone was a sufficient ground to remand him in custody . On DATE the applicant appealed against that decision to ORG . The appeal was not examined . According to the applicant , by a letter of DATE , Judge PERSON of ORG informed Judge PERSON , President of ORG , that \u201c there had been no grounds to lodge an appeal against that decision of the court \u201d . A copy of the letter was not made available to the ORG , but the Government did not dispute the applicant \u2019s rendition of the letter \u2019s content .","On DATE one of the lay judges was replaced by the substitute lay judge .","On DATE or DATE the acting President of ORG ordered a change in the court \u2019s composition , referring to Judge PERSON \u2019s prolonged sick leave . He assigned Judge PERSON and CARDINAL new lay judges to sit in the case .","On DATE the applicant challenged the new composition of the bench as unlawful and asked for copies of the decision officialising the change and of documents confirming the lawfulness of the appointment of new lay judges , as no reasons for replacement of the lay judges had been given . On DATE Judge PERSON dismissed the complaint , finding that the case had been reassigned by order of the acting President of ORG and that no procedural decision on that matter was required .","The applicant appealed to ORG . On DATE ORG dismissed the appeal . It found that Judge PERSON had been on sick leave from DATE to CARDINAL DATE and then from DATE to DATE , and that the decision on her replacement had therefore been lawful and justified . ORG did not mention the appointment of new lay judges .","On DATE the applicant again applied for release , claiming his innocence . ORG dismissed the application , finding that the measure of restraint had been imposed in accordance with the law and there was no reason to change it . The applicant appealed to ORG . The appeal was not examined .","On DATE the proceedings were adjourned until DATE , pending translation of various documents from NORP into NORP . The applicant challenged the decision on the adjournment of the proceedings , which had the effect of extending his detention ; ORG dismissed the challenge . On DATE ORG dismissed the appeal concerning the adjournment of the proceedings as unsubstantiated .","On DATE the entire bench was replaced and the case was assigned to Judge PERSON and CARDINAL new lay judges . No reasons for the replacement were given .","The applicant unsuccessfully challenged the substitution of the bench .","On DATE the applicant appealed against the rejection of his challenge to ORG , which dismissed the appeal as unsubstantiated on DATE .","On DATE the President of ORG instructed Judge PERSON to accept the case . Judge PERSON and both lay judges were replaced by Judge PERSON and CARDINAL new lay judges , PERSON and N.A. No reasons were indicated .","The applicant challenged the new bench ; his challenge was dismissed on DATE . His request to have the substitute lay judge appointed in accordance with LAW was also refused .","An appeal to ORG was examined and rejected in a summary fashion on DATE .","On DATE lay judge PERSON stepped down for family reasons and was replaced by lay judge A.M.","The applicant unsuccessfully challenged the replacement . His appeal was dismissed in a summary fashion by ORG on DATE .","On DATE , DATE and DATE the applicant lodged CARDINAL further applications for release . Those were rejected by ORG on DATE . Each time the court determined that the measure of restraint had been imposed lawfully and there were no grounds to change or revoke it .","On DATE and DATE and in DATE the applicant filed appeals against these decisions with ORG .","On DATE ORG examined all CARDINAL appeals and upheld the decisions of ORG .","On DATE ORG convicted the applicant of high treason committed in the form of espionage , an offence under LAW of GPE .","As regards the actus reus of the offence , the court found that during his long - term diplomatic mission in GPE in DATE the applicant had consented to informal co - operation with GPE ORG ( \u201c the KCIA \u201d ) in return for regular payment . In fulfilment of the ORG \u2019s instructions , DATE and DATE the applicant had arranged CARDINAL meetings with the ORG \u2019s agent , Mr C. , and communicated to the ORG the following documents collected at the ORG \u2019s request :","\u201c -secret information constituting ORG secrets , on GPE \u2019s position and approach to the friendly relationship , friendship and co - operation with ORG ( the ORG ) , set out in CARDINAL draft treaties on the basis of friendly relationships between the CARDINAL states : in DATE the draft treaty on the basis of a friendly relationship between GPE and ORG ; in DATE \u2013 the draft treaty on friendship and co - operation between GPE and the ORG ,","- in DATE , secret information constituting ORG secrets that was contained in the updated report of ORG of the ORG on military co - operation between GPE and GPE ... which he had copied and kept in his office at the ORG until communication ;","- secret information constituting ORG secrets in the field of military co - operation :","in DATE on the beginning of implementation of the inter - governmental treaty , contained in the letter addressed to the NORP Ambassador in the ORG , dated DATE ;","in DATE on the NORP proposal to initiate closed negotiations in the field of military co - operation ;","in DATE on the position of ORG ...","on DATE \u2013 information in the area of politically sensitive relationships between NORP and ORG , contained in CARDINAL documents of DATE ...","on DATE \u2013 on termination of the NORP - NORP treaty on military intelligence , received by the ORG from ORG to the ORG on DATE ;","- other information which did not contain State secrets , by communicating copies of internal documents :","in DATE : copies of documents on negotiations between deputy foreign ministers of GPE and the ORG ... list of diplomats of ORG , report on certain developments in the political life of the ORG ... ;","in DATE : copies of ... a report by ORG in GPE on the political situation in the ORG in DATE , report on the situation in the ORG following the death of PERSON , list of diplomats of ORG in GPE ... list of NORP citizens working in the ORG ;","in DATE : copies of the DATE directory of the ORG management cadres ... a draft press - release following a visit by a ORG delegation to GPE and the list of the delegation members ...","in DATE : copies of the DATE directory of the ORG management cadres ... contract between the NORP ORG concern and the foreign relations committee of the ORG ...","in DATE : copies of the DATE directory of the ORG management cadres ... updated report on the situation in ORG ... report by ORG on the situation in the ORG , information on the members of a delegation accompanying the Vice - Prime Minister of GPE on a forthcoming visit to GPE ...","In addition , DATE and DATE Mr PERSON orally communicated to the NORP intelligence no fewer than CARDINAL pieces of information on various aspects of inter - State relationship that did not contain State secrets .","Having received from PERSON in DATE the list of information that was of interest for the KCIA , PERSON copied and communicated to the NORP intelligence service certain internal documents , such as protocols and co - operation treaties between GPE and the ORG in various areas . \u201d","The court established that the ORG had paid the applicant CARDINAL MONEY in remuneration .","The court founded its findings on , in particular , the applicant \u2019s own statements , obtained in DATE immediately following his arrest , and statements by several witnesses . Most witnesses were identified in the judgment only by their CARDINAL initials , i.e. the first letters of their first , father \u2019s ( patronymic ) and last names . For some witnesses , only the first letter of their last name was given .","Witness \u201c K.G.B. \u201d stated in his pre - trial deposition that virtually all documents concerning GPE \u2019s bilateral relationships with other countries and appraisal of the political and economic situation in these countries , which had been prepared within ORG , had contained sensitive information and their disclosure or communication to other states had been highly undesirable . The court noted that on DATE the applicant , when taking up his duties at ORG , had signed an undertaking not to disclose ORG or work - related secrets . In their pre - trial depositions witnesses \u201c ORG \u201d and \u201c I.A.T. \u201d confirmed that the applicant had had access to sensitive documents which had been of interest to NORP and that PERSON affiliation with the intelligence service had been common knowledge among experts in NORP issues . Their depositions were read out in court and witness \u201c T.G.D. \u201d also made oral submissions to the same effect . Both \u201c ORG \u201d and \u201c T.G.D. \u201d testified that NORP had had good knowledge of issues which they were not supposed to have been aware of .","The court further noted that , according to information from ORG of GPE ( \u0421\u0412\u0420 PERSON ) and ORG of ORG ( ORG \u0412\u0421 ORG ) , during his work in GPE DATE and DATE the applicant had had contacts with employees of the NORP intelligence services and had negligently discussed sensitive matters in unprotected areas . In DATE it was discovered that the NORP intelligence service regularly received confidential information to which the applicant had access and that the applicant maintained private contacts with PERSON in return for remuneration . Witness \u201c PERSON , an employee of ORG , testified to the court that in DATE he had contacted the applicant and advised him of PERSON official mission as a representative of the LAW in GPE . The applicant had acknowledged that he had been aware of this fact .","Referring to a letter from the Counter - intelligence ORG of ORG of GPE ( ORG PERSON ) of CARDINAL DATE , the court established that in DATE ORG had provided ORG with copies of a \u201c draft order on the organisation of the work of ORG agents , resident in GPE in DATE \u201d and the applicant \u2019s \u201c personal residence file \u201d , from which it followed that the applicant had been recruited by the ORG during his stay in GPE and enlisted as a functioning agent of that service .","The court relied on the experts\u2019 findings in establishing that the information communicated by the applicant had contained ORG secrets . It found as follows :","\u201c The court agrees with the experts\u2019 conclusions because the [ study ] was performed by competent persons in compliance with the rules of criminal procedure and [ has been ] scientifically proven . According to the experts , the information [ disclosed ] reveals the substance of GPE \u2019s foreign policy and co - ordination agreements with foreign states in the field of military co - operation and intelligence and also contains politically sensitive data .","The arguments put forward by the defendant and his lawyer about a lack of competence on the part of the experts can not be considered substantiated , because the expert study was carried out by a panel that included experts designated by [ the applicant ] and his defence ; at their request the experts who had been on the expert panel at the pre - trial investigation stage took part in the court hearing and supplied [ the court ] with their written conclusions and clarifications ... \u201d","Finally , the court dismissed in the following terms the applicant \u2019s argument that he could not be held liable for disclosure of ORG secrets because there had been no list of classified information prior to the amendment of LAW of DATE :","\u201c Pursuant to section CARDINAL of LAW of DATE , the list of information constituting ORG secrets is the aggregate of categories of information which can be classified as ORG secrets ... This definition was included in the terminology part [ of the law ] in order to bring its original wording into compliance with LAW . Since the information constituting ORG secrets can not be explicitly enumerated in the law , the approach chosen was that the list was to be understood as an aggregate of the relatively generic categories of information described in section CARDINAL of the new law [ i.e. that of DATE ] .","Hence , there is merely an unimportant semantical difference between section CARDINAL of LAW in its DATE wording and that of DATE . By no means does it imply that there were no legal instruments countering encroachments upon the fundamentals of the constitutional structure and the security of GPE until DATE ...","Nor are the arguments to the effect that the actus reus of the offence under LAW of LAW only comprises acts involving ORG secrets based on the law . The object of espionage may include information constituting ORG secrets , as well as other information that is being collected and transmitted at the request of a foreign intelligence service for use detrimental to the external security of GPE ... \u201d","Having regard to the applicant \u2019s clean criminal record , age , state of health , lengthy detention in custody , positive work references and the absence of aggravating circumstances , the court invoked the \u201c special - circumstances \u201d clause of LAW and sentenced him to a shorter term than that provided in the relevant sanction , specifically to DATE and CARDINAL months\u2019 imprisonment in a strict - security correctional colony , with account for the time served from DATE , and confiscation of his property .","On DATE and other dates the applicant and his CARDINAL lawyers appealed to ORG against the conviction . They alleged violations of the applicant \u2019s rights as guaranteed by LAW and various LAW provisions . The points of appeal touched on substantially the same issues as those raised before this ORG .","On DATE ORG upheld the conviction . The court rejected the arguments by the defence and found that the first - instance court and the investigators had fully complied with both national and international law throughout the proceedings . There had been no violations of law capable of rendering the judgment unfounded or unlawful . ORG reproduced verbatim the city court \u2019s reasoning concerning liability for disclosure of ORG secrets .","From DATE to CARDINAL DATE the applicant was held in the FAC remand prison , run by ORG .","According to the ORG , the applicant was held in a CARDINAL - person cell measuring QUANTITY m. The cell was equipped with heating , mandatory ventilation , a window that could be opened , furniture , a fridge , a TV set , a sink and a lavatory . The applicant had an individual sleeping place and bedding . He received food CARDINAL times a day in accordance with standard norms . The applicant was given cutlery and personal hygiene items , as well as books and magazines from the library . He could exercise outside for TIME a day .","In the applicant \u2019s submission , the cell of QUANTITY was designed for CARDINAL inmates and contained CARDINAL bunk beds fixed to the concrete floor and walls . He shared the cell with CARDINAL other detainees in DATE and then from DATE to DATE . The furniture consisted of CARDINAL small tables and an open shelf , which the detainees mockingly referred to as \u201c a TV set \u201d because all the items on the shelf were on display . Contrary to the ORG \u2019s assertion , there was no fridge or TV set .","The lavatory in the corner of the cell had no flush system and inmates filled a pail with water from the sink to eliminate waste . The toilet was not separated from the living area ; the applicant had to use the toilet and apply his treatment for haemorrhoids in front of his cellmates and the wardens who observed them through a peephole in the door . Detainees cleaned the cell themselves . No broom , dustbin or detergent was given to them . Once in a while they received CARDINAL g of sodium hydrate to disinfect the lavatory . The applicant had access to the showers DATE and received CARDINAL g of laundry soap for washing .","The cell was dimly lit by CARDINAL QUANTITY bulbs , fixed in the ceiling and covered with metal bars and opaque glass . The artificial light was never switched off . The window pane also had frosted glass . The exercise courts were located on the roof of the facility and measured QUANTITY m. The external walls were QUANTITY high and the opening to the sky was protected with metal bars and netting .","On DATE the applicant lodged a complaint with ORG of GPE about the general conditions of his detention , inadequate medical assistance , meagre food provisions and lack of privacy in the cell . On DATE the applicant was visited by the head of the remand prison and senior medical officer and asked about the reasons for lodging the above complaint . The head of the prison had a printed copy of the applicant \u2019s complaint , originally hand - written , which had never been addressed to the prison administration .","On DATE ORG invited the applicant to identify the authority against which he was complaining and to pay the court fee by DATE . The applicant received this decision only on DATE . On DATE the court disallowed the applicant \u2019s complaint because the instructions of DATE had not been fulfilled ; the copy of that decision was served on the applicant on DATE and on DATE his conviction became final .","The applicant was transported from the remand centre to the courthouse and back CARDINAL times .","NORP The prison vans in which the applicant was transported had a passenger cabin which was QUANTITY long , QUANTITY wide , and QUANTITY high . The cabin was divided into CARDINAL multi - occupancy cubicles , designed for CARDINAL inmates each , and CARDINAL single - occupancy cubicle . The cubicles were equipped with hard benches . In addition to the detainees\u2019 cubicles , the cabin contained a CARDINAL wide lobby for QUANTITY police officers . According to the Government , the applicant was placed in a single - occupancy cubicle on the basis of a written request by the prison administration , in order to prevent him from communicating with other detainees ( a copy of that request has not been provided to ORG ) . The applicant submitted that he was usually placed in a multi - occupancy cubicle with CARDINAL other detainees , who had stood or sat on one another \u2019s laps . Even when he was confined to the tiny solitary cubicle , he had had to share it with another person and they had taken turns sitting on each other \u2019s laps . He was never transported alone and he could not be isolated from others because the van was so overcrowded .","The Government submitted that the prison - van heaters and interior lights had been powered by the van engine . The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow . The passenger cabin was cleaned and disinfected on a DATE basis . The applicant insisted that the natural flow of air through the hatches was insufficient and that it was stiflingly hot in DATE . Moreover , as the hatches were located in the wardens\u2019 lobby , the latter opened and closed the hatches on whim . In DATE there was no heating when the engine was not running , and detainees were locked for TIME inside the extremely cold van at assembly points . The floor of the cabin was extremely dirty and covered with cigarette butts , food crumbs and packaging , plastic bottles and bags with urine ; no access to the toilet was possible during the transport .","According to the Government , the travel time from FAC to ORG and back did not exceed TIME . The applicant pointed out that for attendance at court hearings he had usually been taken out of the detention centre TIME but was never brought back until TIME . The road from ORG to the FAC facility took much TIME because the van called en route at either the PERSON or GPE remand prison , both of which served as assembly points for detainees . As a result , the travel time was DATE . By way of example , the applicant gave the following figures : on DATE the travel time from the court to the FAC prison was QUANTITY ; DATE ; CARDINAL DATE CARDINAL min ; CARDINAL DATE CARDINAL min ; DATE CARDINAL min ( to the court ) and QUANTITY ( from the court ) ; DATE CARDINAL min ; CARDINAL DATE CARDINAL min ; CARDINAL DATE CARDINAL min ( until TIME on DATE ) .","The applicant gave the following account of the conditions of his transport in a complaint of DATE addressed to ORG ( resent on DATE ) :","\u201c On DATE [ we ] left the premises of ORG around TIME , and I was brought back to the ORG ( Lefortovo ) remand prison at TIME on TIME , that is , TIME . During the entire period I was kept in an unheated van [ used ] for the transport of detainees , although the outside temperature was approximately -CARDINALo C , without anything to eat or drink and without access to a toilet . Each cubicle of the van contained CARDINAL persons : they had to stand or to sit on each other \u2019s laps . Following this \u2018 trip\u2019 I had the symptoms of flu , I had an acute attack of gastroduodenitis , [ suffered from ] a headache and other symptoms resulting from a lengthy period of sitting on cold benches in the frost . This situation was in no way exceptional : on DATE ] , for example , we started from the courthouse of ORG at TIME , although the court hearing ended at TIME We arrived at the detention centre at CARDINAL p.m .... Similar incidents also occurred thereafter : instead of TIME normally required for a ride , [ the journey ] to the remand centre takes , as a rule , TIME . \u201d","On DATE the commander of the police convoy regiment replied to the applicant that an unidentified regiment officer who had violated the applicable regulations had been disciplined .","On DATE the applicant unsuccessfully attempted to complain about the conditions of transportation to the administration of the remand prison . A similar complaint lodged with the Prosecutor General \u2019s office on CARDINAL DATE evoked the following response from ORG of the ORG on DATE :","\u201c The delays in transportation were due to objective factors . Measures have been undertaken to avoid similar delays in the future \u201d .","DATE . In DATE the applicant complained of degrading and inhuman conditions of transport to the trial judge . His statements were entered in the trial record and the judge promised to get in touch with the relevant authorities to find a way to improve the situation .","The applicant also mentioned the appalling conditions of his transport to and from the remand centre in his complaint of DATE to ORG ( see paragraph CARDINAL above ) .","On DATE of court hearings the applicant was held in the convoy cells of ORG . On CARDINAL occasions \u2013 on DATE , CARDINAL , DATE , DATE and DATE , DATE and DATE , CARDINAL and DATE , DATE , CARDINAL and DATE \u2013 the applicant was brought to the courthouse but no hearings were held , and he remained in the convoy cell for DATE .","According to the Government , the convoy cells had standard dimensions of QUANTITY ( width ) by QUANTITY ( depth ) by QUANTITY ( height ) and the applicant was held there alone to prevent him from communicating with other detainees . The applicant submitted that the convoy cell measured QUANTITY and was nicknamed a \u201c stone tube \u201d ( \u00ab \u043a\u0430\u043c\u0435\u043d\u043d\u044b\u0439 \u0441\u0442\u0430\u043a\u0430\u043d ORG ) because the floor and walls were covered with an abrasive concrete lining and the height was almost twice the width or depth . He was never alone in the convoy cell and occasionally he had to share it with a consumptive inmate .","The Government indicated that convoy cells were equipped with a bench fixed to the floor , mandatory ventilation , heating , lighting and a metal door with a peephole . In cold seasons the average internal temperature was DATE C. Cells were cleaned daily and disinfected DATE . The convoy LOC had a toilet room , to which detainees had access at their discretion .","The applicant submitted that the bench fixed to the floor could barely accommodate CARDINAL persons ; the third detainee had to remain standing . The cell was lit by a small bulb behind metal bars that provided insufficient light to read by . The floor and the bench were dirty and covered with cigarette butts , food waste and torn paper . The cell had no windows and the only opening was the peephole in the door . Heating and the mandatory ventilation were not available ; the air was heavy with cigarette smoke from prisoners smoking in the cell and police officers smoking outside . A visit to the toilet was possible CARDINAL times a day at the warden \u2019s order ; from within the cell it was impossible to call the warden . The applicant never received any food ( hot meal or a dry ration ) in the convoy cell .","The applicant had no family visits from DATE to DATE .","On DATE the applicant \u2019s wife asked the investigator for permission to see her husband . Her request was refused on DATE with reference to the nature of the applicant \u2019s case and the gravity of the charge against him . The investigator considered a visit \u201c inopportune \u201d .","On DATE the applicant asked the investigator to allow his wife to visit him . DATE his request was refused , as the visit was deemed to be \u201c inopportune at that moment \u201d .","DATE . On DATE the applicant \u2019s wife complained about the investigator \u2019s decision to the Prosecutor General \u2019s office . By a letter of DATE , the Chief Military Prosecutor \u2019s office responded that by law the investigator had full discretion in the matter of family visits and that he had acted within his competence .","On DATE the applicant wrote a complaint to the Chief Military Prosecutor \u2019s office . He indicated , in particular , that he had not seen his family for DATE and that the investigator had offered to permit him a family visit in exchange for withdrawal of a judicial complaint concerning the unlawfulness of his detention . On DATE the prosecutor \u2019s office responded that ORG had been asked \u201c to settle the issue \u201d of family visits .","On DATE the applicant applied for permission for his wife and daughter to visit him . Permission was granted to his daughter only and on DATE she paid him a visit .","On DATE the applicant asked for permission to see his wife . On DATE his wife was allowed to see him .","In the subsequent period the applicant \u2019s family was allowed to visit him no more often than twice a month , each visit lasting up to TIME . During the visits the applicant was separated from his relatives by a glass partition and talked to them through an interphone . A warden was present .","The applicant had no family visits from DATE to CARDINAL DATE .","On DATE the applicant \u2019s daughter asked to see her father . She was refused because on DATE she had already come to see him with her mother , which counted as CARDINAL visits , whilst the law only provided for CARDINAL visits by relatives DATE .","On DATE the applicant \u2019s wife complained about the refusal to ORG and ORG office alleging , inter alia , a violation of LAW . DATE she was granted permission to visit the applicant .","DATE and DATE no permits for family visits were issued .","NORP Throughout the proceedings the applicant \u2019s lawyers were permitted to visit him on the basis of permits that were valid for CARDINAL visit only . Such permits were issued by investigators from ORG at the pre - trial investigation stage or by a judge during the trial .","On DATE and CARDINAL May CARDINAL PERSON , CARDINAL of the applicant \u2019s lawyers , applied to ORG of GPE for an unrestricted permit to visit the applicant . In both cases the registry clerk gave her a printed permit valid for \u201c [ one ] visit \u201d . However , yielding to PERSON demands , on both occasions the clerk made handwritten corrections , changing the singular to the plural .","On DATE the staff of the FAC remand centre treated ORG document as a single - use permit because it had been corrected by hand , whereas it originally referred to a single visit .","On DATE PERSON attempted to file a written request to the director of the FAC prison for an unrestricted permit to visit the applicant . The facility staff refused to accept the request and told her that she could not see the director .","Subsequently a deputy director of the FAC prison visited the acting director of legal services office no . CARDINAL , where PERSON worked , and told her that PERSON had forged the permit to visit the applicant ; he threatened PERSON with criminal prosecution . PERSON denied all those allegations .","On DATE ORG issued PERSON with a printed permit valid for \u201c [ several ] visits \u201d to the applicant . According to the Government , on DATE PERSON was refused permission to visit the applicant as she did not provide a mandate by her legal services office for the defence of his interests .","On DATE , DATE and DATE PERSON , one of the applicant \u2019s lawyers , unsuccessfully applied to the trial court for a multiple - use permit to visit the applicant .","On DATE ORG held that section QUANTITY of LAW , which allowed the authorities to require that a visit of a detainee by his advocate be authorised by the investigator or trial court , was incompatible with the constitutional right to legal assistance in criminal cases , in that it made the exercise of the right to defence conditional on a discretionary decision by the authority in charge of the case ( Ruling no . CARDINALP ) .","On DATE , after the conviction had become final , Ms GPE received an unrestricted permit to visit the applicant .","During the pre - trial investigation the bill of indictment was kept in the special department of the remand centre . The applicant could access it with the written consent of the administration . His lawyers obtained access to the bill of indictment after the beginning of the trial , at the special registry of ORG .","Any exchange of documents between the applicant and his lawyers was only possible through the remand centre administration and with its written consent . The administration perused the documents before passing them on .","During the trial the applicant could make notes only in special notebooks that were deposited with the indictment at the special registry of ORG . The same requirements applied to the applicant \u2019s lawyers , who were directed to keep all case - related files , notes and copies of complaints at the special registry .","According to the applicant , he was chained by his hand to a table or chair when studying the case file on the LOC of ORG after the court session on DATE was over . He had to assume an uncomfortable posture and after a while his chained hand went numb . Moreover , when he was chained by his right hand , he could not use a pen and make notes . The time afforded for studying the case file was granted at the discretion of wardens . The Government submitted that the applicant had only been handcuffed on his way to and from the hearing .","On DATE the applicant lodged a complaint about the inadequate conditions for preparation of the defence with ORG . The complaint remained unanswered .","LAW of the Russian NORP Federalist Socialist Republic of CARDINAL DATE ( in force until DATE ) provided as follows :","\u201c ( a ) Treason , being an intentional act of a GPE citizen undermining the sovereignty , territorial integrity , national security or defence of the GPE , in particular , desertion to the enemy , espionage , communication of a ORG or military secret to a foreign state , ... shall be punishable by DATE imprisonment and confiscation of property or by the death penalty and confiscation of property ... \u201d","\u201c Communication of State or military secrets , as well as their collection or storage with a view to communicating them to a foreign state , a foreign organisation or their agents , and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the interests of the GPE , committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment and confiscation of property or by the death penalty and confiscation of property . \u201d","LAW of the Russian Federation of DATE ( in force from DATE ) provides as follows :","\u201c High treason , that is , espionage , disclosure of ORG secrets or assistance otherwise provided to a foreign state , a foreign organisation or their representatives for ... subversive activities undermining the external security of GPE , committed by a NORP national , shall be punishable by DATE imprisonment and confiscation of property ... \u201d","\u201c Communication of State secrets , as well as their collection , theft or storage with a view to communicating them to a foreign state , a foreign organisation or their representatives , and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the external security of GPE , committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment . \u201d","The LAW of DATE provides :","\u201c CARDINAL . Laws must be officially published . Unpublished laws are not to be applied . No legal acts interfering with the rights , freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available \u201d .","\u201c CARDINAL . Everyone has the right to freely search , obtain , impart , generate and disseminate information by all lawful means . The list of information constituting ORG secrets shall be defined in a federal law . \u201d","On DATE the State Secrets Act ( Law no . DATE ) was enacted . Section CARDINAL provided as follows :","\u201c The following information may be classified as a ORG secret :","...","( CARDINAL ) information in the field of the economy , science and engineering ...","( CARDINAL ) information concerning foreign policy and trade :","[ information ] about the foreign policy ... of GPE in respect of which its premature disclosure may harm [ the ORG \u2019s ] interests ; ... \u201d","Section CARDINAL described the procedure for classification of information as ORG secrets . ORG to classify information was delegated to the heads of ORG agencies . The LAW did not contain a list of such officials , which was to be approved by the President . The President was also to approve a List of information classified as ORG secrets , which was to be officially published .","On DATE , CARDINAL and DATE ORG , noting that the absence of a list of classified information \u201c deprived the law - enforcement agencies of a legal basis for the performance of their duty to protect the security of the ORG , community and individuals \u201d , repeatedly petitioned the ORG to prepare for the President \u2019s approval a draft decree containing the list of classified information .","On DATE the President approved Decree no . CARDINAL \u201c On the list of information classified as ORG secrets \u201d . Paragraphs DATE of the list provided for classification of information concerning foreign policy and trade and designated ORG , ORG , ORG , ORG and other agencies as bodies authorised to classify such information .","On DATE ORG examined the compatibility of LAW with the LAW and found as follows :","\u201c CARDINAL ... The ORG may classify as ORG secrets information in the field of defence , economic and other activities , disclosure of which may undermine national defence and the security of the ORG . In this connection LAW of the LAW provides that the list of information constituting ORG secrets is to be adopted in the form of a federal law . The ORG may also determine forms and measures for the protection of ORG secrets , including by way of establishing criminal liability for its disclosure and communication to a foreign ORG .","However , by virtue of the above - mentioned constitutional provision , criminal liability for disclosure of ORG secrets to a foreign state is only justified on condition that the list of information constituting ORG secrets is established in an officially published and universally accessible federal law . Pursuant to LAW , no law - enforcement decision , including a conviction by a court , may be grounded on an unpublished legal act .","The requirements of LAW are fulfilled by LAW of DATE which defines the concept of ORG secrets and indicates the information classifiable as ORG secrets .","Accordingly , establishing criminal liability for disclosure of ORG or military secret to a foreign ORG is not incompatible with ORG CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 DATE and CARDINAL \u00a7 CARDINAL of the LAW . \u201d","On DATE a federal law ( no . CARDINAL ) amending LAW was enacted . LAW was changed to read as follows :","\u201c State secrets shall include : ...","( CARDINAL ) information in the field of foreign policy and trade ... \u201d","The amended section CARDINAL listed categories of information constituting ORG secret .","On DATE ORG , having considered the prosecutor \u2019s appeal against the acquittal of PERSON on charges under ORG CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ( case no . MONEY ) , upheld the acquittal in the following terms :","\u201c Having acquitted PERSON for the lack of constituting elements of a criminal offence in his acts , the [ first - instance ] court proceeded from the premise that DATE and DATE there had been no legal definition of information constituting ORG secrets ...","Pursuant to LAW of LAW ... the list of information constituting ORG secrets was to be defined in a federal law . Such a list was first determined in the federal law \u2018 On the introduction of changes and amendments to the State Secrets Act\u2019 of DATE . Taking into account that during the period when PERSON committed his acts [ in DATE ] , there was no list of information constituting ORG secrets that met the requirements of the LAW , the information that he had collected ... and disclosed ... can not be said to have contained ORG secrets ... As the actus reus of offences under ORG CARDINAL and CARDINAL of LAW only refers to acts involving ORG secrets , the same acts involving other information can not be held to be high treason and disclosure of ORG secrets ...","LAW [ in its DATE version ] could not have been applied to Mr Nikitin as it did not contain a list of information constituting ORG secrets , since section CARDINAL of that Act only referred to information that could be classified as ORG secrets . However , LAW required that the said list be established in a federal law . As section CARDINAL of LAW and LAW refer to different subjects , the court can not agree with the argument of the appeal to the effect that the difference between these provisions is merely semantic ... \u201d","Section CARDINAL of LAW and LAW On additional safeguards for the social protection of judges and administrative staff of the courts of the GPE \u201d stipulate that judges with security clearance are eligible for additional financial benefits . The scale and amount of these benefits depend on the level of security clearance . ORG to set the specific amounts of such benefits is delegated to the ORG and other executive bodies , such as ORG .","The RSFSR Code of Criminal Procedure provided :","\u201c Every case must be examined by CARDINAL and the same composition . If CARDINAL of the judges is no longer able ( \u043b\u0438\u0448\u0435\u043d \u0432\u043e\u0437\u043c\u043e\u0436\u043d\u043e\u0441\u0442\u0438 ) to take part in the proceedings he must be replaced by another judge , and the court proceedings must restart from the beginning , except in cases described in Article CARDINAL . \u201d","\u201c If a case requires a long time for its examination , a substitute lay judge may be appointed . The substitute lay judge is present in the courtroom from the beginning of the proceedings and may step in in case of withdrawal of a lay judge . If the substitute lay judge who has stepped in does not ask for the proceedings to start anew , the proceedings may continue . \u201d","LAW ( RSFSR Law of DATE ) establishes that a court President may appoint judges as the presiding judges and distribute duties between judges ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) and ( CARDINAL ) ) . The LAW stipulates that lay judges have the same rights as professional judges in the administration of justice ( section CARDINAL ) .","The Status of Judges Act ( Law no . ORG of DATE ) provides :","\u201c CARDINAL . The court President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by federal constitutional laws and federal laws , carries out the following functions :","( CARDINAL ) organises the court \u2019s work ;","...","( CARDINAL ) NORP distributes duties between the President \u2019s deputies and , in accordance with the procedure provided for by federal law , between the judges . \u201d","The LAW establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . At the material time , a decision ordering pre - trial detention could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the \u201c CCrP \u201d ) .","NORP Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( LAW CCrP ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed .","After arrest a suspect could be placed in custody \u201c pending investigation \u201d for an initial DATE period ( LAW of the ORG ) . Further extensions could be granted by prosecutors at ascending levels of jurisdiction .","Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file , the file was submitted to a trial court . From DATE the defendant \u2019s detention was \u201c before the court \u201d ( or \u201c pending trial \u201d ) . Until DATE LAW set no time - limit for detention \u201c pending trial \u201d . On DATE a new LAW was inserted which established that the period of detention \u201c during trial \u201d could not normally exceed DATE from the date the court received the file .","LAW ( Federal Law on ORG and Defendants , no . CARDINAL of DATE ) provides as follows :","\u201c ORG , ORG , ORG , ORG shall adopt , upon approval of ORG , ORG , for the purpose of ensuring order in remand centres .","The Internal Rules establish the procedure for :","...","( CARDINAL ) receiving and dispatching telegrams , letters and money transfers by suspects and defendants ;","...","( CARDINAL ) organising meetings between suspects and defendants and the persons listed in section CARDINAL of the present Act ... \u201d","\u201c Suspects and defendants have the right :","...","( CARDINAL ) to meet with relatives and other persons listed in section CARDINAL ;","( CARDINAL ) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests ...","...","( CARDINAL) to maintain correspondence and to use writing utensils . \u201d","\u201c From the moment of arrest , suspects and defendants may be visited by their legal representative in privacy . Visits are not limited in frequency or duration . Visits may be granted : if the legal representative is an advocate \u2013 upon presentation of a mandate issued by the legal services office ( \u043e\u0440\u0434\u0435\u0440 \u044e\u0440\u0438\u0434\u0438\u0447\u0435\u0441\u043a\u043e\u0439 \u043a\u043e\u043d\u0441\u0443\u043b\u044c\u0442\u0430\u0446\u0438\u0438 ) ... and an identity document .","...","Subject to written consent from the official or authority in charge of the criminal case , a suspect or defendant may have up to CARDINAL meetings per month with relatives and other persons , each visit to last for TIME ... \u201d","\u201c Suspects and defendants may correspond with relatives and other persons , without any limitation on the number of incoming and outgoing letters or telegrams ...","Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship . Censorship is carried out by the administration of the remand prison and , if necessary , by the official or authority in charge of the criminal case ... \u201d"],"violated_articles":["3","5","6","8"],"violated_paragraphs":["5-3","5-4","6-1","6-3"],"violated_bulletpoints":["6-3-b"],"non_violated_articles":["7"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88721","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF DUBLAS v. POLAND","importance":4,"conclusion":"Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","On DATE he was arrested by the police .","On DATE the ORG ( S\u0105d Rejonowy ) decided to place the applicant in pre - trial detention as there were reasonable grounds for suspecting that he had been dealing in drugs . The court also cited the risk that the applicant would go into hiding , in view of the likelihood of a heavy sentence .","On DATE and DATE the applicant \u2019s detention was extended . In addition to the CARDINAL grounds given previously , ORG cited the need to ensure the proper conduct of the investigation .","On DATE the applicant was indicted before ORG . His pre - trial detention was subsequently extended .","As the length of the applicant \u2019s detention had reached the statutory timelimit of DATE laid down in LAW of LAW ( Kodeks post\u0119powania karnego ) , ORG made a series of applications to ORG ( S\u0105d Apelacyjny ) for the applicant \u2019s detention to be extended beyond that term . On DATE and CARDINAL DATE ORG granted the applications and extended his detention , citing the reasonable suspicion against the applicant and the length of the sentence that was likely to be imposed . The ORG also considered that ORG could not be held responsible for not having completed the trial as there had been objective procedural difficulties in hearing all the witnesses .","The first hearing was held on DATE . Subsequently , hearings were held at regular intervals .","NORP The applicant \u2019s applications for release from detention and his appeals against the decisions extending the preventive measure were dismissed .","On DATE the ORG extended the applicant \u2019s detention until DATE . It cited the reasonable suspicion against the applicant and found that detention was necessary to secure the proper conduct of the proceedings given the likelihood of a heavy sentence .","The applicant \u2019s detention on remand was not extended beyond that date and on DATE he was released .","On DATE the applicant lodged a complaint under section CARDINAL of the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) . On DATE the ORG dismissed the complaint , finding that the trial had been conducted speedily and with no periods of inactivity .","The proceedings are still pending before the trial court .","The relevant domestic law and practice concerning pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension and release from detention , and the rules governing other \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are set out in the ORG \u2019s judgments in the cases of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) , and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG \u2019s decisions in the cases of ORG v. GPE ( no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 CARDINAL , ORG ) , and NORP v. GPE ( no . CARDINAL ( dec . ) , ORG CARDINALVIII ) and judgment in the case of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V ) ."],"violated_articles":["5","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87830","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF VIKTOR PETROV v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE , a town in LOC .","As a victim of GPE , the applicant is entitled to social benefits . Considering himself underpaid , he brought CARDINAL successful actions against local authorities responsible for welfare .","On DATE the ORG fixed a new amount of periodic benefits . This judgment became binding on DATE . According to the Government , this judgment was fully enforced by DATE . According to the applicant , this judgment has still not been enforced , because from DATE the periodic benefits were reduced again .","On DATE ORG awarded MONEY ( \u201c RUB \u201d ) as interest for delayed payment . This judgment became binding on DATE . On the welfare authority \u2019s request , on DATE the ORG of ORG quashed the judgment on supervisory review , on the ground of misapplication of material law .","On DATE the Justice of ORG of GPE awarded RUB CARDINAL as interest for delayed payment . This judgment became binding on DATE . On the welfare authority \u2019s request , on DATE the ORG of ORG quashed the judgment on supervisory review , on the ground of misapplication of material law .","On DATE ORG awarded arrears and fixed a new amount of periodic payments . This judgment became binding on DATE . According to the Government , this judgment was fully enforced by DATE . According to the applicant , this judgment has still not been enforced , because the periodic payments continue to be miscalculated .","On DATE ORG awarded compensation of inflationary loss caused by the delayed enforcement of an earlier judgment . This judgment became binding on DATE and was enforced on DATE .","On DATE ORG ordered the applicant to be provided in DATE with a decent flat of CARDINAL GPE . This judgment became final on DATE and was enforced on DATE .","NORP Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE ."],"violated_articles":["13","6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79494","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2007,"docname":"CASE OF ANGEL ANGELOV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 6-1;No violation of Art. 6-1 (length);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant , who was a taxi driver , hit a pedestrian with his car . The applicant brought the victim to the nearest hospital , where he died DATE despite the efforts of the medical doctors .","On DATE or DATE the applicant was charged with involuntary manslaughter .","On an unspecified date in DATE , after the completion of the investigation , an indictment was submitted to ORG . The relatives of the victim joined the proceedings as civil plaintiffs .","After a hearing , on DATE the court convicted the applicant and sentenced him to DATE imprisonment , suspended . The court also ordered the suspension of the applicant 's driving licence for DATE and ordered him to pay damages to the relatives of the victim .","Upon the applicant 's appeal , on DATE ORG quashed the lower court 's judgment and referred the case back for reexamination at the investigation stage , instructing the competent authorities to commission a new expert report in order to clarify certain additional facts .","The renewed investigation lasted until DATE when a fresh indictment was submitted to ORG .","By judgment of DATE ORG convicted the applicant and sentenced him to DATE imprisonment , suspended . The court also ordered the suspension of the applicant 's driving licence for DATE .","On DATE the applicant appealed to ORG .","On DATE ORG , acting as a court of appeal in a chamber of CARDINAL judges , dismissed the appeal .","On DATE the applicant filed with ORG a petition for review ( cassation ) , which would have fallen to be examined by a CARDINAL - member chamber of ORG in the transitional period following the DATE legislative amendments ( see paragraph CARDINAL below ) .","On an unspecified date ORG transmitted the petition and the case file to ORG .","On DATE a judge of ORG dismissed as time - barred the petition for review ( cassation ) and ordered the return of the case file back to ORG . The order was made on a standard form which stated that the petition for review had been dismissed as time - barred , without mentioning any dates . The name of the judge who issued the order was not indicated .","In accordance with LAW and the practice , appeals are filed with the registry of the court whose decision is being appealed against . That court then transmits the appeal , together with the case - file , to the higher court in which the power to examine the appeal is vested .","By amendment of LAW published on DATE and in force as of DATE , the system of appeals against convictions and sentences was reformed . In accordance with section CARDINAL \u00a7 CARDINAL of the transitory provisions to the LAW amending LAW , the timelimit for submission of a petition for review ( cassation ) against judgments delivered prior to the amendment 's entry into force was DATE from the date on which the judgment had become enforceable . Under LAW , as in force at the relevant time , appellate judgments upholding the first instance judgment became enforceable on the date of delivery ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57508","languageisocode":"ENG","respondent":"IRL","branch":"CHAMBER","date":1986,"docname":"CASE OF JOHNSTON AND OTHERS v. IRELAND","importance":2,"conclusion":"Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 8 and 12;No violation of Art. 14+8;Violation of Art. 8 regarding the legal situation of the third applicant under Irish law;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"C. Russo;Gaukur J\u00f6rundsson;J.A. Carrillo Salcedo","text":["ORG The first applicant is PERSON , who was born in DATE and is a scientific research and development manager . He resides at GPE , GPE , with the second applicant , PERSON , who was born in DATE ; she is a school - teacher by profession and used to work as director of a play - group in GPE , but has been unemployed since DATE . The third applicant is their daughter , PERSON , who was born in DATE .","ORG The first applicant married a Miss M in DATE in a NORP of Ireland ceremony . CARDINAL children were born of this marriage , in DATE , DATE and DATE .","In DATE , it became clear to both parties that the marriage had irretrievably broken down and they decided to live separately at different levels in the family house . DATE both of them , with the other \u2019s knowledge and consent , formed relationships and began to live with third parties . By mutual agreement , the CARDINAL couples resided in self - contained flats in the house until DATE , when PERSON wife moved elsewhere .","In DATE , the second applicant , with whom PERSON had been living since DATE , gave birth to PERSON . He consented to his name being included in ORG as the father ( see paragraph CARDINAL below ) .","ORG Under LAW ( see paragraphs DATE below ) , the first applicant is unable to obtain , in GPE , a dissolution of his marriage to enable him to marry the second applicant . He has taken the following steps to regularise his relationship with her and with his wife and to make proper provision for his dependents .","( a ) ORG With his wife \u2019s consent , he has consulted solicitors in GPE and in GPE as to the possibility of obtaining a dissolution of the marriage outside GPE . His GPE solicitors advised that , in the absence of residence within the jurisdiction of the NORP courts , he would not be able to do so in GPE , and the matter has therefore not been pursued ( see also paragraphs CARDINAL - CARDINAL below ) .","( b ) ORG On DATE , he concluded a formal separation agreement with his wife , recording an agreement implemented DATE . She received a lump - sum of IR\u00a3CARDINAL,CARDINAL and provision was made for maintenance of the remaining dependent child of the marriage . The parties also mutually renounced their succession rights over each other \u2019s estates .","( c ) ORG He has made a will leaving his house to the second applicant for life with remainder over to his CARDINAL children as tenants in common , CARDINAL of the residue of his estate to the second applicant , and the other CARDINAL to his CARDINAL children in equal shares .","( d ) ORG He has supported the third applicant throughout her life and has acted in all respects as a caring father .","( e ) ORG He contributed towards the maintenance of his wife until the conclusion of the aforementioned separation agreement and has supported the CARDINAL children of his marriage during their dependency .","( f ) ORG The second applicant has been nominated as beneficiary under the pension scheme attached to his employment .","( g ) ORG He has taken out health insurance in the names of the second and third applicants , as members of his family .","ORG The second applicant , who is largely dependent on the first applicant for her support and maintenance , is concerned at the lack of security provided by her present legal status , in particular the absence of any legal right to be maintained by him and of any potential rights of succession in the event of intestacy ( see also paragraph CARDINAL below ) . As is permitted by law , she has adopted the first applicant \u2019s surname , which she uses amongst friends and neighbours , but for business purposes continues to use the name PERSON . According to her , she has felt inhibited about telling employers of her domestic circumstances and although she would like to become an NORP citizen by naturalisation , she has been reluctant to make an application , not wishing to put those circumstances in issue .","ORG The third applicant has , under NORP law , the legal situation of an illegitimate child and her parents are concerned at the lack of any means by which she can , even with their consent , be recognised as their child with full rights of support and succession in relation to them ( see paragraphs CARDINAL - CARDINAL below ) . They are also concerned about the possibility of a stigma attaching to her by virtue of her legal situation , especially when she is attending school .","ORG The first and second applicants state that although they have not practised any formal religion for some time , they have recently joined ORG ( the NORP ) in GPE . This decision was influenced in part by their concern that the third applicant receives a NORP upbringing .","The LAW , which came into force in DATE , includes the following provisions :","\" CARDINAL.CARDINAL.CARDINALo The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .","CARDINAL The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name , and property rights of every citizen .","CARDINAL.CARDINAL.CARDINALo The ORG recognises the Family as the natural primary and fundamental unit group of ORG , and as a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law .","CARDINAL The ORG , therefore , guarantees to protect the Family in its constitution and authority , as the necessary basis of social order and as indispensable to the welfare of the Nation and the ORG .","( ... )","CARDINAL The ORG pledges itself to guard with special care the institution of Marriage , on which the family is founded , and to protect it against attack .","CARDINAL No law shall be enacted providing for the grant of a dissolution of marriage .","( ... )","The ORG acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide , according to their means , for the religious and moral , intellectual , physical and social education of their children .","( ... )","In exceptional cases , where the parents for physical or moral reasons fail in their duty towards their children , the ORG as guardian of the common good , by appropriate means shall endeavour to supply the place of the parents , but always with due regard for the natural and imprescriptible rights of the child . \"","ORG As a result of LAW , divorce in the sense of dissolution of a marriage ( divorce a vinculo matrimonii ) is not available in GPE . However , spouses may be relieved of the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation ( also known as a divorce a mensa et thoro ) ; such a decree , which is obtainable only on proof of commission of adultery , cruelty or unnatural offences , does not dissolve the marriage . In the remainder of the present judgment , the word \" divorce \" denotes a divorce a vinculo matrimonii .","It is also possible to obtain on various grounds a decree of nullity , that is a declaration by ORG that a marriage was invalid and therefore null and void ab initio . A marriage may also be \" annulled \" by an ecclesiastical tribunal , but this does not affect the civil status of the parties .","ORG The NORP courts have consistently held that the \" Family \" that is afforded protection by LAW is the family based on marriage . Thus , in The State ( Nicolaou ) v. An ORG The Adoption Board DATE NORP Reports CARDINAL , ORG said :","\" It is quite clear from the provisions of LAW , and in particular section CARDINAL thereof , that the family referred to in this Article is the family which is founded on the institution of marriage and , in the context of the Article , marriage means valid marriage under the law for the time being in force in the ORG . While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many , if not all , of the outward appearances of a family , and may indeed for the purposes of a particular law be regarded as such , nevertheless as far as LAW is concerned the guarantees therein contained are confined to families based upon marriage . \"","ORG has , however , held that an illegitimate child has unenumerated natural rights ( as distinct from rights conferred by law ) which will be protected under LAW , such as the right to be fed and to live , to be reared and educated , to have the opportunity of working and of realising his or her full personality and dignity as a human being , as well as the same natural rights under LAW as a legitimate child to \" religious and moral , intellectual , physical and social education \" ( G v. An ORG Irish Reports CARDINAL ) .","ORG Article CARDINAL.CARDINAL.CARDINALo of the LAW provides :","\" No person whose marriage has been dissolved under the civil law of any other ORG but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the ORG and ORG established by this LAW shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage dissolved . \"","ORG A series of judicial decisions has established that the foregoing provision does not prevent the recognition by NORP courts , under the general NORP rules of private international law , of certain decrees of divorce obtained , even by NORP nationals , in another ORG . Such recognition used to be granted only if the parties to the marriage were domiciled within the jurisdiction of the foreign court at the time of the relevant proceedings ( ORG Deceased : ORG Caffin DATE NORP Reports CARDINAL ; ORG v. ORG Reports CARDINAL ; however , since DATE a divorce will be recognised if granted in the country where either spouse is domiciled ( ORG ) . To be regarded as domiciled in a foreign ORG , a person must not only be resident there but also have the intention of remaining there permanently and have lost the animus revertendi . Moreover , the foreign divorce will not be recognised if domicile has been fraudulently invoked before the foreign court for the purpose of obtaining the decree .","ORG If notice is served for a civil marriage before a Registrar of Births , Marriages and Deaths in GPE and he is aware that either of the parties has been divorced abroad , he must , under the regulations in force , refer the matter to ORG . The latter will seek legal advice as to whether on the facts of the case the divorce would be recognised as effective to dissolve the marriage under NORP law and as to whether the intended marriage can consequently be permitted .","Persons who , like the first and second applicants , are living together in a stable relationship after the breakdown of the marriage of CARDINAL of them are unable , during the lifetime of the other party to that marriage , to marry each other in GPE and are not recognised there as a family for the purposes of LAW ( see paragraphs CARDINAL and CARDINAL above ) .","ORG Such persons , unlike a married couple , have no legal duty to support or maintain one another and no mutual statutory rights of succession . However , there is no impediment under NORP law preventing them from living together and supporting each other and , in particular , from making wills or dispositions inter vivos in each other \u2019s favour . They can also enter into mutual maintenance agreements , although the ORG and the applicants expressed different views as to whether these might be unenforceable as contrary to public policy .","In general , the married member of the couple remains , at least in theory , under a continuing legal obligation to maintain his or her spouse . In addition , testamentary dispositions by that member may be subject to the rights of his or her spouse or legitimate children under LAW DATE .","ORG As compared with married couples , persons in the situation of the first and second applicants :","( a ) have no access , in the event of difficulties arising between them , to the system of barring orders instituted to provide remedies in respect of violence within the family ( Family Law ( Maintenance of Spouses and Children ) Act DATE , as amended by LAW DATE ) ; they can , however , obtain analogous relief by seeking a court injunction or declaration ;","( b ) do not enjoy any of the rights conferred by LAW in relation to the family home and its contents , notably the prohibition on sale by CARDINAL spouse without the other \u2019s consent and the exemption from stamp duty and ORG fees in the event of transfer of title between them ;","( c ) as regards transfers of property between them , are less favourably treated for the purposes of capital acquisition tax ;","( d ) enjoy different rights under the social welfare code , notably the benefits available to deserted wives ;","( e ) are unable jointly to adopt a child ( see also paragraph CARDINAL below ) .","ORG In NORP law , the principle mater semper certa est applies : the maternal affiliation of an illegitimate child , such as the third applicant , is established by the fact of birth , without any requirement of voluntary or judicial recognition .","The Illegitimate Children ( Affiliation Orders ) Act DATE , as amended by LAW DATE and LAW DATE , provides procedures whereby ORG or ORG may make an \" affiliation order \" against the putative father of a child directing him to make periodic payments in respect of the latter \u2019s maintenance and also whereby the court may approve a lump - sum maintenance agreement between a person who admits he is the father of an illegitimate child and the latter \u2019s mother . Neither of these procedures establishes the child \u2019s paternal affiliation for all purposes , any finding of parentage being effective solely for the purposes of the proceedings in question and binding only on the parties .","ORG Under the Registration of Births and Deaths ( Ireland ) Act DATE , as amended by ORG , the Registrar may enter in the register the name of a person as the father of an illegitimate child if he is so requested jointly by that person and the mother . The act of registration does not , however , establish paternal affiliation .","ORG The mother of an illegitimate child is his sole guardian as from the moment of his birth ( section CARDINAL(CARDINAL ) of the Guardianship of Infants Act DATE ) and has the same rights of guardianship as are jointly enjoyed by the parents of a legitimate child . The natural father can apply to the court under section CARDINAL(CARDINAL ) of the same LAW regarding the child \u2019s custody and the right of access thereto by either parent ; however , he can not seek the court \u2019s directions on other matters affecting the child \u2019s welfare nor is there any means whereby he can be established as guardian of the child jointly with the mother , even if she consents .","ORG An illegitimate child may be legitimated by the subsequent marriage of his parents , provided that , unlike the first and second applicants , they could have been lawfully married to one another at the time of the child \u2019s birth or at some time during DATE ( section CARDINAL ) and ( CARDINAL ) of LAW ) .","ORG Under LAW , as amended , an adoption order can only be made in favour of a married couple living together , a widow , a widower , or the mother or natural father or a relative of the child .","ORG The effect of ORG , as amended by LAW DATE , is to impose on each of the parents of an illegitimate child an equal obligation to maintain him . This obligation can not be enforced against the father until an \" affiliation order \" has been made against him ( see paragraph CARDINAL above ) .","ORG The devolution of estates on intestacy is governed by LAW DATE which provides , basically , that the estate is to be distributed in specified proportions between any spouse or \" issue \" who may survive the deceased . In O\u2019B v. S DATE NORP Reports CARDINAL , ORG held that the word \" issue \" did not include children who were not the issue of a lawful marriage and that accordingly an illegitimate child had , under LAW , no right to inheritance on the intestacy of his natural father . Whilst also holding that the resultant discrimination in favour of legitimate children was justifiable by reason of sections QUANTITY of Article CARDINAL of the LAW ( see paragraph CARDINAL above ) , ORG stated that the decision to change the existing rules of intestate succession and the extent to which they were to be changed were primarily matters for the legislature . The relevant rules in the LAW formed part of a statute designed to strengthen the protection of the family in accordance with LAW , an Article which created not merely a ORG interest but a ORG obligation to safeguard the family ; accordingly , the said discrimination was not necessarily unjust , unreasonable or arbitrary and the said rules were not invalid having regard to the provisions of the LAW .","An illegitimate child may , on the other hand , in certain circumstances have a right to inheritance on the intestacy of his mother . A special rule ( section CARDINAL(CARDINAL ) of LAW ) lays down that where the mother of an illegitimate child dies intestate leaving no legitimate issue , the child is entitled to take any interest in his mother \u2019s estate to which he would have been entitled if he had been born legitimate .","ORG As regards testate succession , LAW DATE empowers a court to make provision for a child for whom it considers that the testator has failed in his moral duty to make proper provision . An illegitimate child has no claim against his father \u2019s estate under this section , but may be able to claim against his mother \u2019s estate provided that she leaves no legitimate issue .","ORG An illegitimate child inheriting property from his parents is potentially liable to pay capital acquisition tax on a basis less favourable than a child born in wedlock .","ORG In DATE , a ORG of the D\u00e1il ( Chamber of Deputies ) and the Seanad ( ORG ) was established , inter alia , to examine the problems which follow the breakdown of marriage . In its report of DATE , it referred to figures suggesting that MONEY of marriages in GPE had broken down to date , but noted the absence of accurate statistics . ORG considered that the parties to stable relationships formed after marriage breakdown and the children of such relationships currently lacked adequate legal status and protection ; however , it expressed no view on whether divorce legislation was at present necessary or desirable .","In a national referendum held on DATE , a majority voted against an amendment of the LAW , which would have permitted legislation providing for divorce .","ORG In DATE , ORG published a ORG on Illegitimacy . Its basic recommendation was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage .","After considering the report , the Government announced in DATE that they had decided that the law should be reformed , and that reform should be concentrated on the elimination of discrimination against persons born outside marriage and on the rights and obligations of their fathers . However , the Government decided not to accept a proposal by ORG that the father be given automatic rights of guardianship in relation to a child so born .","ORG In DATE , the Minister of ORG laid before both ORG a Memorandum entitled \" The Status of Children \" , indicating the scope and nature of the main changes proposed by the Government . On DATE , the Status of Children Bill DATE , a draft of which had been annexed to the aforesaid Memorandum , was introduced into the Seanad . If enacted in its present form , the PERSON - which has the stated purpose of removing as far as possible provisions in existing law which discriminate against children born outside marriage - would have , inter alia , the following effects .","( a ) Where the name of a person was entered on the register of births as the father of a child born outside marriage , he would be presumed to be the father unless the contrary was shown ( cf . paragraph CARDINAL above ) .","( b ) The father of a child born outside marriage would be able to seek a court order making him guardian of the child jointly with the mother ( cf . paragraph CARDINAL above ) . In that event , they would jointly have all the parental rights and responsibilities that are enjoyed and borne by married parents .","( c ) The proviso qualifying the possibility of legitimation by subsequent marriage would be removed by the repeal of LAW ( see paragraph CARDINAL above ) .","( d ) The legal provisions governing the obligation of both of the parents of a child born outside marriage to maintain him would be similar to those governing the corresponding obligation of married parents ( see paragraph CARDINAL above ) .","( e ) For succession purposes , no distinction would be made between persons based on whether or not their parents were married to each other . Thus , a child born outside marriage would be entitled to share on the intestacy of either parent and would have the same rights in relation to the estate of a parent who died leaving a will as would a child of a family based on marriage ( cf . DATE and CARDINAL above ) .","The Explanatory Memorandum to the PERSON states that any fiscal changes necessitated by the proposed new measures would be a matter for separate legislation promoted by the Minister for Finance .","Work is also in progress on legislation reforming the law of adoption , following the publication in DATE of the Report of ORG . That ORG recommended that , as at present ( see paragraph CARDINAL above ) , unmarried couples should not be eligible to adopt jointly even their own natural children ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86052","languageisocode":"ENG","respondent":"EST","branch":"CHAMBER","date":2008,"docname":"CASE OF DOROZHKO AND POZHARSKIY v. ESTONIA","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - award","judges":"Isabelle Berro-Lef\u00e8vre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych","text":["Mr PERSON , the applicant in application no . CARDINAL ( \u201c the first applicant \u201d ) , was born in DATE . Mr PERSON , the applicant in application no . CARDINAL ( \u201c the second applicant \u201d ) , was born in DATE . Both of them are currently serving prison sentences .","The applicants were arrested TIME on TIME . They were initially suspected of having caused grievous bodily harm and of temporary unauthorised use of other ORG movable property ( cars ) . Subsequently , the applicants were also charged with robbery .","On DATE ORG ( linnakohus ) refused to extend the applicants\u2019 detention . The second applicant was released . The first applicant , however , was not released by the police ; he was kept under arrest and declared under suspicion of an offence of threatening behaviour . On DATE ORG authorised his further detention .","In the meantime , on DATE , the police chief inspector PERSON ordered that a team of investigators be set up for the criminal case concerned . The team consisted of PERSON himself as the head of the team and CARDINAL other senior police inspectors : PERSON , PERSON and PERSON","In the submission of the Government , the further criminal investigation was practically solely carried out by police investigator PERSON , while only a few procedures were performed by investigators PERSON and PERSON The criminal case file did not contain any indication that PERSON personally performed any investigative actions or that he issued any instructions or guidelines to the members of the team .","Nevertheless , the first applicant was informed by FAC and ORG during the pre - trial investigation , in response to his complaints , that PERSON was a member of the team of investigators set up for the criminal case concerned and he had the powers to conduct all investigative activities .","On DATE ORG ( maakohus ) authorised the second applicant \u2019s detention until DATE in different criminal proceedings not related to the present case .","In the meantime , on DATE and again on DATE , after ORG had amended the charges , the applicants were committed for trial by ORG . The case was heard by a court composed of a professional judge , PERSON , and CARDINAL lay judges . The hearings before ORG took place on several dates .","At a ORG hearing on CARDINAL DATE the first applicant said in his closing statement that because he had refused to cooperate with the police investigators B. , PERSON and PERSON , the charges against him had been changed . He also said that although a judge had ordered his release , police investigators PERSON and PERSON had not released him from the police cell but had detained him again on suspicion of threatening behaviour .","On CARDINAL DATE ORG convicted the applicants of robbery and temporary unauthorised use of other ORG movable property . The first applicant was also convicted of an offence of threatening behaviour . The first applicant was sentenced to DATE and the second applicant to CARDINAL years\u2019 imprisonment .","The applicants and the first applicant \u2019s lawyer appealed against the judgment . The applicants in their appeals challenged , inter alia , the impartiality of ORG judge PERSON , as her husband , PERSON , had headed the team of investigators which had been set up for the investigation of the criminal case concerned . The second applicant noted that this issue had been raised at a ORG hearing but judge PERSON had not withdrawn .","On DATE the first applicant \u2019s wife also lodged a complaint to ORG , arguing , inter alia , that judge PERSON should have withdrawn because her husband had been involved in the pre - trial investigation .","At the hearing before ORG on DATE the first applicant raised the issue of impartiality of ORG judge PERSON According to the record of the hearing , he stated as follows :","\u201c The presiding judge was PERSON . Her husband was the person who carried out the preliminary investigation . I only learned about it after the court hearing . This fact affected the impartiality of the judge . It could also be seen from the record [ of the court hearing ] because it is imprecise . ... It affected the judicial investigation . The judge did not grant my requests , everything happened very quickly . She [ ] wanted to have me imprisoned . I did not request the removal of the judge . I did not know at that time that her husband had been the head of the preliminary investigation . \u201d","According to the prosecutor the applicants had not been aware that PERSON and PERSON were married to each other when ORG began to hear the case . In her submission they had become aware of it later , by the time of the subsequent hearings . However , no requests for removal of the judge had been made .","At the end of ORG hearing the second applicant said that PERSON had interrogated him . He added : \u201c [ PERSON ] threatened me [ and said ] that if I confessed , I would not go to prison . \u201d","On DATE ORG ( ringkonnakohus ) acquitted the applicants in respect of the second count of temporary unauthorised use of other ORG movable property . It upheld ORG judgment in the remaining part .","Referring to LAW ( ORG koodeks ) , which concerned grounds for disqualification of a judge , ORG found that the ORG allegations did not warrant quashing ORG judgment and referring the case to the first - instance court for a new trial . Moreover , it was noted that none of the parties to the proceedings had requested judge PERSON disqualification during the proceedings in ORG ; neither had the impartiality of the judge nor that of the court been put into doubt in the appeals . The first applicant had submitted at ORG hearing that he had become aware of the fact that PERSON was the judge \u2019s husband during the court proceedings . ORG found , however , that the judge \u2019s possible relationship with an official participating in the preliminary investigation did not prove the judge \u2019s partiality . It noted that although PERSON had been the head of the team of police officers investigating the case , the investigation had in fact been carried out by another police investigator . None of the reports concerning various investigative activities ( uurimistoimingu protokoll ) in the case file had been drawn up by PERSON Moreover , besides judge PERSON , CARDINAL lay judges had taken part in deciding the case . ORG considered that the allegation concerned was artificial and had been submitted with a view to delaying the proceedings .","NORP In his appeal to ORG ( NORP ) , the first applicant argued that judge PERSON could not have been unaware of the fact that her husband had led the team of investigators and that the applicant had made several complaints during the preliminary investigation to ORG against the police investigators , including PERSON asserted that judge PERSON should have withdrawn from hearing the case . In his view the judicial investigation in ORG had not been impartial ; the lack of impartiality had particularly been reflected in the severity of the sentence . The applicant had not requested PERSON removal because he had found out too late and through informal sources that she was married to PERSON Nevertheless , he was of the opinion that his failure to request the judge \u2019s removal should not deprive him of the right to impartial adjudication of the charges against him .","The second applicant argued in his appeal to ORG that judge PERSON had had no right to administer justice in respect of him because she was the wife of the head of the team of police investigators .","On DATE ORG refused the applicants leave to appeal .","According to LAW ( ORG koodeks ) , as in force at the material time , a judge could not participate in criminal proceedings and had to be disqualified if he or she had a direct or indirect personal interest in the case or if other circumstances gave reasons to doubt his or her impartiality . Article CARDINAL provided that a person who was related to an official conducting a preliminary investigation or court proceedings in a criminal case could not participate in the proceedings as an expert , specialist , defence counsel or representative of a victim , plaintiff or defendant , or as an interpreter or translator .","Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the LAW stipulated that a person whose spouse had participated in the proceedings of a criminal case ( menetlusosaline kriminaalasjas ) could not act as a judge in that case . The same applied in respect of a person with regard to whom facts were presented which gave reason to doubt his or her impartiality ( LAW ( CARDINAL ) ) .","Article CARDINAL \u00a7 CARDINAL of the Code provided that participants in the criminal proceedings ( kriminaalmenetluse osaline ; menetlusosaline ) were : suspect , accused , accused at trial and his or her defence counsel , prosecutor in court proceedings , and victim , plaintiff , defendant and their representative .","In LAW - CARDINAL \u00a7 CARDINAL of the Code the rights and obligations of a head of the investigation ( uurimisjuht ) were enumerated . He or she could monitor the activities of a preliminary investigator and give him or her instructions ; form teams of investigators ( uurimisgrupp ) ; annul unlawful or unjustified orders of preliminary investigators ; participate in the actions of preliminary investigators or personally perform actions in a criminal matter .","Under LAW a head of the investigation could form a team of investigators by his or her order . The head of the team of investigators ( uurimisgrupi vanem ) had to be named in the order . The latter had to coordinate the activities of the team of investigators .","Article CARDINAL of the Code provided that after a judge had announced the panel of the court , he or she had to explain to the participants in the proceedings their right to request the judge \u2019s or lay judges\u2019 disqualification .","Article CARDINAL of the Code stipulated that judges and lay judges had to withdraw from hearing of the case , and the participants in the proceedings had the right to request their disqualification , under the circumstances specified in Article CARDINAL or CARDINAL of the Code ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5716","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2001,"docname":"G\u00d6ZTOK v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national , born in DATE and living in GPE . He is represented before the Court by PERSON , Mr PERSON , Mr PERSON and PERSON , lawyers practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","Until DATE the applicant lived in the GPE attached to the PERSON district in the province of ORG . The applicant owns a piece of land and he had a house in the village .","In DATE and DATE the applicant , along with other villagers , was continually intimidated by the members of the security forces called \u201c special team \u201d . The villagers were subjected to food rationing imposed by the military commander of the district . The village was under military control and access to the village was subject to prior permission from the special teams . Subsequently , the majority of the villagers abandoned their village due to the pressure by the security forces .","In DATE the applicant gave the keys of his house to the commander in the village before he went to GPE in order to spend the DATE there . The applicant said to the commander that in case the security forces wanted to conduct a search in his house they could go in . He further said to the commander not to break the windows or the door of the house had they conduct a search . While in GPE the applicant learnt from his neighbours that on DATE his house had been burnt down by the security forces . The applicant returned back to his village and saw that his house and all its contents had been burnt .","The applicant was told by a commander called PERSON that his house had been burnt down by the terrorists .","A villager , G.A. , who had witnessed the burning of the houses in the village , told the applicant that his house , along with the other houses in the village , had been burnt with explosives installed by the security forces . The other villagers also told the applicant that only the houses of those who refused to abandon the village had been burnt down . The villagers further told the applicant that a commander called ORG had been conducting the burning of the houses .","On DATE the applicant filed petitions with the offices of the PERSON public prosecutor , the LOC , and the Governor for the state of emergency region . He stated that his house had been burnt down on DATE . He requested that an investigation be initiated about the burning of his house and asked for compensation for his losses .","On DATE the applicant filed petitions with the offices of the Prime Minister , the Minister of Interior and the Minister of State in charge of human rights . He requested that an investigation be initiated and that the perpetrators be identified about the burning of his house . He further requested compensation for his losses . The applicant received no replies to these applications .","In a letter dated CARDINAL DATE to ORG , GPE ve PERSON ) from the office of the ORG Governor it was stated that the villagers form the ORG , GPE , GPE , PERSON and GPE villages attached to LOC had complained that in DATE they had been given TIME by the security forces to abandon their villages . These villagers had further complained that their houses had been burnt by the security forces and requested that an investigation be initiated into their allegations . However , some of these houses had been destroyed by the DATE weather and some of them had been intentionally burnt down by the villagers in order to obtain compensation from the authorities . The houses in the PERSON village had been burnt down in the clashes with the ORG . The authorities were not responsible for the damages occurred .","On DATE the office of the Yayladere District Governor sent a letter in reply to the applicant stating that the authorities were not responsible for the burning of the houses . The applicant \u2019s house had been burnt in the clashes between the security forces and the terrorists on DATE . The applicant had alleged that he had left the keys of his house to the commander before he went to GPE . However , this allegation had been unsubstantiated .","On DATE the public prosecutor at ORG decided to join the CARDINAL applications that were previously registered with the office of the PERSON public prosecutor and that were transferred to his office . In his decision the prosecutor noted that the PERSON public prosecutor had issued a decision of lack of jurisdiction ( g\u00f6revsizlik karar\u0131 ) on CARDINAL DATE ( decision no . CARDINAL ) concerning the clashes took place at the PERSON station between the security forces and the terrorists on DATE . The prosecutor decided to register the investigation file related to this event at his office . The prosecutor further noted that the PERSON public prosecutor had issued a decision of lack of jurisdiction ( g\u00f6revsizlik karar\u0131 ) on CARDINAL DATE ( decision no . CARDINAL - CARDINAL ) concerning the burning of the applicant \u2019s house . The prosecutor finally decided to register the CARDINAL investigation files at his office under investigation file number DATE .","On DATE the applicant filed another petition with the office of the Yayladere District Governor . In this petition the applicant stated that he left his village in DATE and that his house had been burnt on CARDINAL DATE . He also asked compensation for his losses .","On DATE the applicant filed a petition with the office of the Prime Minister . In this petition the applicant stated that his house had been burnt in the clashes in DATE . He asked compensation for the losses he had sustained due to the destruction of his properties .","Administrative liability","Article CARDINAL of LAW provides as follows :","\u201c All acts or decisions of the administration are subject to judicial review ...","The administration shall be liable to indemnify any damage caused by its own acts and measures . \u201d","The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of \u201c social risk \u201d . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .","The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :","\u201c ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . \u201d","Criminal responsibility","LAW makes it a criminal offence :","( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,","( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ,","( c ) to issue threats ( LAW ) ,","( d ) to make an unlawful search of an individual \u2019s home ( Articles CARDINAL and CARDINAL ) ,","( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,","( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or","( g ) to damage another \u2019s property intentionally ( Articles ORG ) .","For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with ORG or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .","If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .","If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .","Provisions on compensation","Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .","Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61204","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2003,"docname":"CASE OF MULTIPLEX v. CROATIA","importance":3,"conclusion":"Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant company is owned by Mr PERSON who lived in PERSON , which is situated on the territory of the present day PERSON , a part of GPE , until DATE when he fled to GPE and went to live in ORG .","On DATE the NORP Military Police requisitioned a vehicle belonging to the applicant company .","According to the Government the vehicle had been requisitioned by the military authorities from GPE . Upon the request by the military authorities from GPE for the return of vehicles which had been requisitioned in GPE for military purposes , in case that they were located in GPE , ORG conferred the applicant company 's vehicle after having found it . The vehicle was conferred to the NORP authorities on DATE and has ever since been in their possession .","According to the applicant the vehicle was requisitioned by the NORP authorities and conferred to the NORP para - military forces in GPE , the so - called ORG ( PERSON vije\u0107e obrane ) . The applicant company repeatedly requested ORG to return the vehicle , but to no avail .","On DATE the applicant company filed a civil claim for damages in the amount of CARDINAL NORP PERSON ( ORG ) against GPE , with ORG ( GPE privredni sud u GPE ) . It appears that the case was subsequently transferred to ORG ( PERSON ) .","On DATE GPE filed its reply denying the plaintiff 's claim . It requested the court to stay the proceedings until the end of war in GPE . It stated further that the vehicle had been requisitioned only temporarily for needs of the army and would be returned to the applicant company after the war .","At the hearing on DATE the applicant company specified the claim for damages seeking CARDINAL NORP PERSON ( HRK ) .","On DATE the applicant company requested ORG to speed up the proceedings .","On DATE the court decided that an expertise be carried out in order to establish the value of the vehicle in question . The applicant company was invited to pay an advance for the costs of the expertise .","On DATE the case - file was assigned to an expert who submitted his opinion on DATE .","It appears that the defendant asked the court to stay the proceedings claiming that it was uncertain whether the applicant company still existed because the excerpt from the Banja Luka Court registry on the applicant company 's legal status was quite old .","On DATE the court invited the company 's representative to submit a new excerpt from the relevant registry .","NORP The applicant company 's legal representative informed the court that he no longer represented the applicant .","On DATE the applicant company requested the court to schedule a hearing .","On DATE the applicant company 's representative submitted an uncertified excerpt from ORG registry dating from DATE .","On DATE the court invited the applicant to submit a new excerpt , not DATE , showing that PERSON was entitled to represent the applicant company .","On DATE ORG introduced a change of LAW which provided that all proceedings concerning actions for damages resulting from acts of members of the NORP army or police when acting in their official capacity during the war in GPE were to be stayed .","On DATE the court stayed the proceedings pursuant to the above change in law .","On DATE the applicant company appealed against the above decision claiming that ORG erred in its application of the law as the vehicle in question was not taken by any member of the NORP army or police acting in an official capacity but exclusively for the needs of ORG , a military formation of GPE , operating in that country .","It appears that on DATE a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation . However , ORG has not yet adopted any decision .","On DATE ORG ( \u017dupanijski sud u GPE ) upheld ORG decision of DATE .","On DATE the applicant company filed a request for revision with ORG , repeating its arguments from the earlier appeal . On DATE ORG rejected the above request as inadmissible . It found that LAW ( Zakon o parni\u010dnom postupku ) allows a party to file a request for revision only against a final decision of an appellate court while the decision of ORG did not represent a final decision in that case .","On DATE the applicant company appealed against ORG decision .","On DATE ORG dismissed the appeal .","Section CARDINAL ( a ) of the CARDINAL Act on Changes of LAW ( Zakon o dopunama GPE o obveznim odnosima , ORG no . CARDINAL ) provides that all proceedings instituted against GPE for damages caused by the members of the NORP army or police when acting in their official capacity during the Homeland War in GPE from DATE to DATE are to be stayed .","The LAW also imposed an obligation on the Government to submit to ORG special legislation , regulating the responsibility for such damages , at the latest within DATE from the entry into force of the present Act . So far no new legislation has been introduced ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77203","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2006,"docname":"GUZ v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr C. ORG , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG opened an investigation against the applicant on suspicion of aggravated assault .","It appears that on DATE the applicant went to GPE . Subsequently , ORG ( Prokurator Rejonowy ) stayed the investigation since the applicant had not replied to the summons and his place of residence was unknown . On DATE ORG issued a search and arrest warrant in respect of the applicant on suspicion of aggravated assault .","On DATE the applicant was arrested by the police and subsequently the investigation against him was resumed . ORG laid additional charges against the applicant .","Subsequently , ORG applied to ORG ( S\u0105d Rejonowy ) for the applicant to be detained pending the investigation . On DATE ORG remanded the applicant in custody until DATE on suspicion of aggravated assault , handling stolen goods and forgery of a car body . It found that in the light of the evidence obtained , in particular witnesses\u2019 testimonies , there was a strong likelihood that the applicant had committed the offences with which he had been charged . It also observed that there was a reasonable risk that the applicant would go into hiding given that he had been at large since DATE .","On DATE the ORG ( PERSON ) upheld that decision . It underlined that the applicant had been suspected of committing the offences in question DATE and DATE and that CARDINAL search and arrests warrants had been issued . It also observed that progress in the proceedings against the applicant had been impossible as he had gone into hiding for DATE . Further , it held that the applicant \u2019s detention was justified by the severity of the anticipated sentence .","It appears that the applicant \u2019s pre - trial detention was prolonged by ORG on DATE for an unspecified period .","On DATE the ORG ( S\u0105d Apelacyjny ) upheld ORG decision of DATE . In addition to the arguments previously invoked , it also found that on DATE of his arrest , the applicant had been using a forged driving licence . That , in the court \u2019s view , further warranted the prolongation of the applicant \u2019s detention so as to prevent him from absconding .","On DATE ORG ordered that the applicant undergo psychiatric observation . The relevant report was submitted to the prosecutor on DATE .","On DATE ORG extended the applicant \u2019s detention until DATE , relying on the same grounds as in the earlier decisions . That decision was upheld on appeal on DATE .","On DATE ORG ordered that the applicant be held in custody until DATE . It reiterated the grounds previously given .","On DATE the ORG filed a bill of indictment against the applicant . He was charged with attempted homicide , handling stolen goods , forgery of documents and a car body and having used a forged driving licence . The second defendant , PERSON , was charged with directly endangering the life of another person . The prosecution requested the trial court to hear evidence from CARDINAL witnesses .","On DATE ORG extended the applicant \u2019s detention until DATE . It considered , having regard in particular to the victim \u2019s evidence , that there was a strong suspicion that the applicant had committed the offences in question . It also observed that the applicant \u2019s continued detention was necessary in order to secure the proper conduct of the proceedings given the severity of the likely sentence . On DATE the ORG upheld ORG decision . It observed that the applicant \u2019s detention was necessary given the fact that he had evaded justice for DATE . It also noted that the severity of the sentence which could be imposed justified of itself the applicant \u2019s continued detention . It appears that the applicant \u2019s detention was subsequently extended on later unspecified dates .","On DATE ORG ordered that the applicant be held in custody until DATE , reiterating the grounds previously given .","On DATE ORG prolonged the applicant \u2019s detention until DATE . That decision was upheld by ORG on DATE . The courts repeatedly relied on the strong likelihood that the applicant had committed the offences with which he was charged . In addition , they had regard to the severity of the likely sentence and the fear that he might go into hiding if released . The latter was justified , in the courts\u2019 view , by the length of time the applicant had evaded justice prior to his arrest and his having used a forged identity document .","ORG held CARDINAL hearings on the following dates : CARDINAL and DATE , DATE , DATE and DATE ; PERCENT , CARDINAL and DATE , DATE , CARDINAL and DATE , CARDINAL May , CARDINAL and DATE , CARDINAL DATE , CARDINAL , DATE and DATE . CARDINAL trial hearing was adjourned on account of the absence of the applicant \u2019s lawyer ( DATE ) .","On numerous occasions the applicant requested the trial court to release him . However , his requests were dismissed for the same reasons which had served to justify his continued detention .","On DATE the ORG gave judgment . It convicted the applicant as charged and sentenced him to CARDINAL half years\u2019 imprisonment . It also prolonged the applicant \u2019s detention on remand until DATE . The applicant appealed against the first - instance judgment .","On DATE the ORG upheld the judgment of ORG . The applicant lodged a cassation appeal against the judgment of ORG .","On DATE ORG ( S\u0105d Najwy\u017cszy ) dismissed the applicant \u2019s cassation appeal due to its manifestly ill - founded character .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . The other measures are bail ( por\u0119czenie maj\u0105tkowe ) , police supervision ( doz\u00f3r policji ) , surety by a responsible person ( por\u0119czenie osoby godnej zaufania ) , surety by a social entity ( por\u0119czenie spo\u0142eczne ) , temporary ban on engaging in a given activity ( zawieszenie oskar\u017conego w okre\u015blonej dzia\u0142alno\u015bci ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .","Article CARDINAL \u00a7 CARDINAL sets out the general grounds for imposition of preventive measures . That provision reads :","\u201c CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused \u2019s committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW , in the version applicable at the relevant time , provides :","\u201c The court shall inform the detainee \u2019s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined . \u201d","Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :","\u201c 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 his identity can not be established or when he has no permanent abode [ in GPE ] ;","( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;","NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years\u2019 imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . \u201d","The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :","\u201c CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . \u201d","Article CARDINAL , in its relevant part , reads :","\u201c CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d","The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court \u2013 within those time - limits \u2013 must in each detention decision determine the exact time for which detention shall continue .","Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :","\u201c CARDINAL . In imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .","The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .","Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . \u201d","On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed . In addition , new paragraph CARDINAL was added . It provides :","\u201c A decision of ORG taken pursuant to paragraph CARDINAL may be appealed against to ORG sitting in a panel of CARDINAL judges . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67818","languageisocode":"ENG","respondent":"DNK","branch":"GRANDCHAMBER","date":2004,"docname":"CASE OF PEDERSEN AND BAADSGAARD v. DENMARK","importance":1,"conclusion":"No violation of Art. 6-1;No violation of Art. 10","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicants were CARDINAL television journalists . At the relevant time they were employed by CARDINAL of the CARDINAL national television stations in GPE , ORG . They produced CARDINAL television programmes which were broadcast at TIME on DATE and CARDINAL DATE respectively . It was estimated that PERCENT of all viewers above DATE saw the programmes . The programmes , described as documentaries , were called \u201c Convicted of Murder \u201d ( GPE for mord ) and \u201c The Blind Eye of the Police \u201d ( NORP blinde \u00f8je ) respectively and dealt with a murder trial in which on CARDINAL DATE ORG of GPE ( Vestre Landsret ) had convicted a person , hereafter called X , of murdering his wife on DATE TIME was sentenced to DATE imprisonment . On appeal , ORG ( H\u00f8jesteret ) upheld the sentence in DATE . On DATE , following his release on probation , PERSON requested ORG ( PERSON ) to reopen the case .","The applicants had started to prepare the programmes in DATE , establishing contact with witnesses through advertising in the local paper and via police reports .","Both programmes began with a statement of the premise on which they had been produced :","\u201c In this programme we shall provide evidence by way of a series of specific examples that there was no legal basis for ORG conviction and that , by imposing its sentence , ORG disregarded CARDINAL of the fundamental tenets of the law in GPE , namely that the accused should be given the benefit of the doubt .","We shall show that a scandalously bad police investigation , in which the question of guilt was prejudged right from the start , and which ignored significant witnesses and concentrated on dubious ones , led to X being sentenced to CARDINAL years\u2019 imprisonment for the murder of his wife .","This programme will show that X could not have committed the crime of which he was convicted on CARDINAL DATE \u201d .","At an early stage in the first programme , \u201c Convicted of Murder \u201d , the following comment was made :","\u201c In the case against X , the police investigation involved about CARDINAL people . CARDINAL pages of reports were written DATE and CARDINAL witnesses appeared before ORG .","We will try to establish what actually happened on DATE of the murder , CARDINAL DATE . We shall critically review the police investigations and evaluate the ORG statements regarding the time of PERSON \u2019s wife \u2019s disappearance . \u201d","When preparing this first programme , the applicants had invited the police of GPE district , who had been responsible for the investigation of the murder case , to take part . Having corresponded with the applicants on this subject for some time , the chief of police informed them by a letter of DATE that the police could not participate in the programme as certain conditions for granting the interview , inter alia , that the questions be sent in writing in advance , had not been met .","Following the broadcast of the first programme on DATE , the applicants were charged with defamation on the ground that they had unlawfully connected the friend of X \u2019s wife ( \u201c the schoolteacher \u201d ) with the death of CARDINAL women referred to , one being PERSON \u2019s wife . The defamation case ended on DATE before ORG with a settlement according to which the applicants were to pay the schoolteacher CARDINAL NORP kroner ( ORG ) , apologise unreservedly , and give an undertaking never to broadcast the programme again .","The applicants alleged that the chief superintendent , in a telephone conversation with PERSON at some unknown time before the broadcast of the second programme , had declined to participate in the programme .","In the introduction to the second programme , the following comment was made :","\u201c It was the police of GPE district who were responsible at that time for the investigations which led to X \u2019s conviction . Did the police assume right from the start that X was the killer , and did they therefore fail to investigate all the leads in the case , as required by the law ?","We have investigated whether there is substance in GPE \u2019s serious allegations against the police of GPE district . \u201d","A little later in the programme , the second applicant interviewed a taxi driver , who explained that she had been questioned by CARDINAL police officers DATE after the disappearance of PERSON \u2019s wife , and that she had mentioned on that occasion CARDINAL observations she had made on DATE : she had seen a ORG taxi ( which was later shown to have no relevance to the murder ) , and before that she had seen X and his son at TIME . She had driven behind them for QUANTITY . The reason she could remember the date and time so clearly was because she had to attend her grandmother \u2019s funeral on DATE at TIME","The following comment was then made :","\u201c Commentator : So in DATE , shortly after ORG wife disappeared and PERSON was in prison , the GPE police were in possession of the taxi driver \u2019s statement , in which she reported that shortly after TIME that DATE she had driven behind X and his son for QUANTITY ... So X and his son were in GPE [ residential area ] twice , and the police knew it in DATE . \u201d","The interview went on :","\u201c Second applicant : What did the police officers say about the information you provided ?","Taxi driver : Well , CARDINAL of them said that it could n\u2019t be true that PERSON \u2019s son was in the car , but in fact I am a PERCENT certain it was him , as I also know the son because I have driven him to the day - care centre .","Second applicant : Why did he say that to you ?","Taxi driver : Well , he just said that it could n\u2019t be true that the son was there .","Second applicant : That it could n\u2019t be true that you saw what you saw .","Taxi driver : No , that is , he did n\u2019t say that I had n\u2019t seen X , it just could n\u2019t be true that the son was with him .","Second applicant : These were the CARDINAL police officers who questioned the taxi driver in DATE and who wrote the police report .","We showed the taxi driver her statement of DATE , which she had never seen before .","Taxi driver : It \u2019s missing , the bit DATE there was only ... about the ORG , there was nothing about the rest , unless you have another one .","Second applicant : There is only this one .","Taxi driver : But it obviously can not have been important .","Second applicant : What do you think about that ?","Taxi driver : Well it says , I do n\u2019t know , well I think when you make a statement , it should be written down in any case , otherwise I ca n\u2019t see any point in it , and especially not in a murder case .","Commentator : So the taxi driver claims that in DATE she had already told CARDINAL police officers that she had seen X and his son . Not a word of this is mentioned in this report .","Second applicant : Why are you so sure that you told the police this at the time , which was DATE ?","Taxi driver : Well I am PERCENT sure of it and also , my husband sat beside me in the living room as a witness so ... , so that is why I am a PERCENT certain that I told them .","Second applicant : And he was there throughout the entire interview ?","Taxi driver : Yes , he was .","Second applicant : Not just part of the interview ?","Taxi driver : No , he was there all the time .","Commentator : It was not until DATE , DATE , that the taxi driver heard of the matter again , shortly after the \u2018 Convicted of Murder\u2019 programme had been shown ; even though the taxi driver \u2019s report had been filed as a so - called CARDINAL report , she was phoned by a chief inspector of ORG [ Rejseholdet ] who had been asked by the public prosecutor to do a few more interviews .","Taxi driver : The chief inspector called me and asked whether I knew if any of my colleagues knew anything they had not reported , or whether I had happened to think of something , and I then told him on the phone what I said the first time about the ORG and that I had driven behind X and his son up to FAC , and then he said that if he found anything out , or if ... or if there was anything else , then ... then he would get in touch with me again , which he did n\u2019t , not until a while afterwards , when he called me and asked whether I would come for another interview .","Second applicant : When you told the chief inspector in your telephone call that you followed X , and that his son was in the car , what did he say about that ?","Taxi driver : Well , he did n\u2019t say anything .","Second applicant : He did not say that you had never reported this ?","Taxi driver : No , he did n\u2019t . \u201d","The second applicant then conducted a short interview with X \u2019s new counsel :","\u201c Second applicant : Have you any comment on the explanation the taxi driver has given now ?","X \u2019s new counsel : I have no comment to make at this time .","Second applicant : Why not ?","X \u2019s new counsel : I have agreed with the public prosecutor , and the President of ORG , that statements to the press in this matter will in future only be issued by ORG .","Commentator : Even though X \u2019s new counsel does not wish to speak about the case , we know from other sources that it was he who , in DATE , asked for the taxi driver to be interviewed again . So in DATE she was interviewed at GPE police station in the presence of the chief superintendent , which is clearly at odds with what the public prosecutor previously stated in public , namely that the GPE police would not get the opportunity to be involved in the new inquiries . \u201d","The interview with the taxi driver continued :","\u201c Second applicant : And what happened at the interview ?","Taxi driver : What happened was that I was shown into the office of the chief inspector of ORG and the chief superintendent was there too .","Second applicant : Was any explanation given about why he was present ?","Taxi driver : No .","Second applicant : So what did you say in this interview ?","Taxi driver : I gave the same explanations as I had done the first time when I was interviewed at home .","Second applicant : DATE before , that is .","Taxi driver : Yes .","Second applicant : And that was ?","Taxi driver : Well , that I had driven behind X and his son up to Ryets Street .","Second applicant : What did they say about that ?","Taxi driver : They did n\u2019t say anything .","Second applicant : The report which was made in DATE , did you see it ?","Taxi driver : No .","Second applicant : Was it there in the room ?","Taxi driver : There was a report there when I was being interviewed , but I was n\u2019t allowed to see it .","Second applicant : Did you expressly ask whether you could see the old report ?","Taxi driver : I asked whether I could see it but the chief inspector said I could n\u2019t ... \u201d","After the interview with the taxi driver the commentator said :","\u201c Now we are left with all the questions : why did the vital part of the taxi driver \u2019s explanation disappear and who , in the police or public prosecutor \u2019s office , should bear the responsibility for this ?","Was it the CARDINAL police officers who failed to write a report about it ?","Hardly , sources in the police tell us they would not dare .","Was it [ the named chief superintendent ] who decided that the report should not be included in the case file ? Or did he and the chief inspector of ORG conceal the witness \u2019s statement from the defence , the judges and the jury ? ... \u201d","Pictures of the QUANTITY police officers , the named chief superintendent and the chief inspector of ORG , were shown on the screen simultaneously and parallel with the above questions . The questions went on :","\u201c Why did the chief inspector phone the taxi driver shortly after the television programme \u2018 Convicted of Murder\u2019 ? After all , the police had taken the view that the taxi driver had no importance as a witness and had filed her statement among the CARDINAL reports .","Why did the chief inspector not call her in for an interview when she repeated her original explanation on the telephone ?","Why was the taxi driver interviewed at the GPE police station in the presence of the chief superintendent , which was completely at odds with the public prosecutor \u2019s public statement ?","On DATE [ a named ] Chief Constable stated to [ a regional DATE ] : \u2018 All the information connected to the case has been submitted to the defendants , the prosecution and the judges.\u2019 Did the Chief Constable know about the taxi driver \u2019s statement , when he made this statement ? Did ORG know already in DATE that there was a statement from a witness confirming that X had been in ORG twice , and that X \u2019s son had been with him both times ? Neither of them have agreed to make any statement at all about the case . \u201d","In the meantime , on DATE , before the broadcast of the second programme , the taxi driver had again been interviewed by the police , at the request of ORG \u2019s new counsel . She stated that on DATE she had attended her grandmother \u2019s funeral at TIME and that on her way there , CARDINAL or TIME , she had driven behind X and his son . She had arrived at the funeral just before TIME She also explained that she had told the police about this when first interviewed in DATE . Later on DATE the police carried out a check which revealed that the funeral of the taxi driver \u2019s grandmother had indeed taken place on DATE , but at TIME","Subsequently , the police held CARDINAL interviews with the taxi driver , during which she changed her explanation , in particular as follows .","On DATE she maintained having seen X shortly after TIME but agreed that the funeral had taken place at TIME On her way there she realised she had forgotten a wreath . She had had to return home and had consequently arrived at the funeral just before TIME","On DATE she stated that she was not sure about the date or the time she had seen X and his son . Moreover , she was uncertain whether , shortly after the murder , she had told the police about having seen X. She also explained that , during the shooting of her interview with Mr Baadsgaard on DATE , he had suggested that she say something like \u201c where is the other report ? \u201d when he showed her the DATE report .","On DATE she initially stated that she had not seen X and his son on DATE . She had never before connected this episode to the funeral . She also admitted having made up the story about the forgotten wreath , but had wanted \u201c things to fit \u201d . Later during the interview she maintained that she had seen X and his son on DATE , but at TIME","On DATE the chief superintendent reported the applicants and the television station to the police for defamation . It appears , however , that the prosecution \u2019s decision as to whether or not to charge the applicants was adjourned pending the decision whether to reopen X \u2019s case .","This was decided in the affirmative by ORG on DATE after CARDINAL hearings and the examination of CARDINAL witnesses , including the taxi driver . CARDINAL judges ( out of CARDINAL ) in GPE found that new testimonial evidence had been produced on which X might have been acquitted , had it been available at the trial . CARDINAL other judges found that no new testimonial evidence had been produced on which X might have been acquitted , had it been available at the trial . The fifth judge agreed with the latter , but found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been judged correctly . Accordingly , the court granted a retrial .","In the meantime , following the television programmes , an inquiry had commenced into the police investigation of ORG \u2019s case . The inquiry resulted in a report of CARDINAL DATE by ORG , according to which the police in GPE had not complied with section CARDINAL(CARDINAL ) of ORG ( Retsplejeloven ) . This provision , introduced on DATE , provides that a witness must be given the opportunity to read through his or her statement . The non - compliance had not been limited to the investigation in GPE \u2019s case . Instead , allegedly in order to minimise errors or misunderstandings , the police in GPE usually interviewed witnesses in the presence of QUANTITY police officers and made sure that crucial witnesses repeated their statements before a court as soon as possible . In this connection , ORG noted that ORG , before which ORG had been convicted in DATE , had not made any comments on the failure to comply with section CARDINAL ) of ORG with regard to the witnesses who were heard before it in DATE . Finally , ORG noted that the GPE district police were apparently not the only district police failing to comply with the said provision . ORG considered it unjustified to maintain that the taxi driver , when interviewed in DATE , had stated that she had seen X on DATE of the murder . During the inquiry this had been contradicted by the CARDINAL police officers who had interviewed her in DATE . Moreover , the inquiry did not indicate that anyone within the GPE police had suppressed any evidence in GPE \u2019s case , or in any other criminal case for that matter .","Consequently , on DATE , ORG PERSON ) stated in a letter to ORG that it was unfortunate and open to criticism that the police in GPE had not implemented the above provision as part of their usual routine , and informed the Ministry that he had agreed with ORG that he would produce a wider set of guidelines concerning the questioning of witnesses , which could be integrated into ORG educational material .","X \u2019s retrial ended with his acquittal in a judgment of CARDINAL DATE by ORG , sitting with a jury .","A lawyer who represented the applicants in another case had become aware of a letter of CARDINAL DATE from ORG to ORG ( Retsudvalget ) of the NORP parliament mentioning that , subsequent to the broadcast of the programme \u201c ORG of the Police \u201d , the applicants had been reported to the police by CARDINAL police officers from GPE . By a letter of DATE , the lawyer requested that the Prosecutor General state whether the applicants had been charged , and if so with what offence . By a letter of CARDINAL DATE , he was told that no charge had been brought against the applicants .","On DATE the Chief Constable in GPE informed the applicants that they were charged with defaming the chief superintendent . On DATE the applicants were questioned by the police in GPE .","A request of CARDINAL DATE by the prosecution to seize the ORG research material was examined at a hearing in ORG ( Retten i Gladsaxe ) on DATE , during which the ORG counsel , claiming that the case concerned a political offence , requested that a jury in ORG \u2013 instead of ORG \u2013 try the case . Both requests were refused by ORG on DATE . In DATE the prosecution appealed against the decision on seizure and the applicants appealed against the decision on venue . At the request of CARDINAL of the ORG counsel , an oral hearing was scheduled to take place in ORG of Eastern Denmark ( PERSON ) on DATE . However , on DATE counsel challenged one of the judges in ORG , alleging disqualification , and requested an oral hearing on the issue . ORG decided on DATE to refuse an oral hearing and on DATE it decided that the judge in question was not disqualified . It appears that counsel requested leave to appeal against this decision to ORG ( H\u00f8jesteret ) , but to no avail . As to the appeal against non - seizure and the question of venue , hearings were held in the High Court on DATE and DATE , and by a decision of CARDINAL DATE ORG upheld ORG decisions . The applicants\u2019 request for leave to appeal to ORG was refused on DATE .","On DATE the prosecution submitted an indictment to ORG . A preliminary hearing was held on DATE during which it was agreed that the case would be tried over DATE in DATE . However , as counsel for CARDINAL of the parties was ill , the final hearings were rescheduled to take place on CARDINAL , DATE , DATE and DATE and CARDINAL DATE .","On DATE ORG delivered a QUANTITY - page judgment , finding that the questions put in the television programme concerning the named chief superintendent amounted to defamatory allegations , which should be declared null and void . However , the court did not impose any sentence on the applicants as it found that they had had reason to believe that the allegations were true . The court also ruled in favour of the applicants regarding a compensation claim by the widow of the named chief superintendent , who had died before the trial . The judgment was appealed against by the applicants immediately , and by the prosecution on DATE .","On DATE the prosecutor sent a notice of appeal to ORG , and on DATE he invited counsel for the applicants and the attorney for the widow of the chief superintendent to a meeting concerning the proceedings . Counsel for CARDINAL of the parties stated that he was unable to attend before DATE , and accordingly the meeting was held on DATE . ORG received TIME of the meeting , from which it appeared that counsel for CARDINAL of the parties was unable to attend the trial before DATE , and that he preferred the hearings to take place in DATE . On DATE ORG scheduled the hearings for CARDINAL , DATE and DATE and DATE .","On DATE the ORG gave judgment convicting the applicants of tarnishing the honour of the chief superintendent by making and spreading allegations of an act likely to disparage him in the eyes of his fellow citizens , under LAW . The allegations were declared null and void . The applicants were each sentenced to DATE - fines of DKK CARDINAL ( or CARDINAL days\u2019 imprisonment in default ) and ordered to pay compensation of DKK CARDINAL to the estate of the deceased chief superintendent .","On DATE , DATE and DATE the applicants sought leave from the Leave - to - Appeal Board ( Procesbevillingsn\u00e6vnet ) to appeal to ORG . Before deciding , the ORG requested an opinion from the prosecuting authorities , namely the Chief of ORG , ORG and ORG . On DATE they submitted a joint opinion opposing leave to appeal . However , in the meantime , it appears that a lawyer representing the television station ORG had contacted ORG , proposing that the public prosecution assist in bringing the case before ORG as , according to the television station , ORG judgment was incompatible with LAW ( PERSON ) . Consequently , the public prosecutors initiated a new round of consultation on this question , and their joint opinion was forwarded to ORG . On DATE , having heard the applicants\u2019 counsel on the prosecution \u2019s submissions , ORG granted the applicants leave to appeal to ORG .","The Prosecutor General submitted a notice of appeal and sent the case file to ORG on DATE and DATE respectively .","As counsel for the applicants wanted to engage yet another counsel , on DATE they asked ORG whether costs in this respect would be considered legal costs . Moreover , they stated that their pleadings could not be submitted until DATE . On DATE ORG decided on the question of costs , and on DATE scheduled the hearing for CARDINAL and DATE .","By a judgment of DATE , ORG upheld ORG judgment , but increased the compensation payable to the estate to DKK CARDINAL . The majority of judges ( CARDINAL out of CARDINAL ) held :","\u201c In the programme \u2018 The Blind Eye of the Police\u2019 , [ the applicants ] not only repeated a statement by the taxi driver that she had already explained to the police during their inquiries in DATE that shortly after TIME on DATE she had driven behind X for QUANTITY , but also , in accordance with the common premise for the programmes \u2018 Convicted of Murder\u2019 and \u2018 The Blind Eye of the Police\u2019 , took a stand on the truth of the taxi driver \u2019s statement and presented matters in such a way that viewers , even before the final sequence of questions , were given the impression that it was a fact that the taxi driver had given the explanation as she alleged she had done in DATE and that the police were therefore in possession of this statement in DATE . This impression was strengthened by the first of the concluding questions : \u2018 ... why did the vital part of the taxi driver \u2019s explanation disappear and who , in the police or public prosecutor \u2019s office , should bear the responsibility for this?\u2019 . In connection with the scenes about the QUANTITY police officers [ the applicants ] include CARDINAL questions in the commentator \u2019s narrative , to which the indictment relates ; irrespective of the fact that they were phrased as questions , viewers undoubtedly received a clear impression that a report had been made about the taxi driver \u2019s statement that she had seen X at the relevant time on DATE ; that this report had subsequently been suppressed ; and that such suppression had been decided upon either by the named chief superintendent alone or by him and the chief inspector of ORG jointly . The subsequent questions in the commentator \u2019s narrative do not weaken this impression , and neither does the question whether the Chief Constable or the public prosecutor were aware of the taxi driver \u2019s statement . On this basis we find that in the programme \u2018 ORG of the Police\u2019 [ the applicants ] made allegations against the named superintendent which were intended to discredit him in the eyes of his peers , within the meaning of LAW [ PERSON ] . We find further that it must have been clear to [ the applicants ] that they were , by way of their presentation , making such allegations .","[ The applicants ] have not endeavoured to provide any justification but have claimed that there is no cause of action by virtue of LAW \u2013 [ which protects ] a party who in good faith justifiably makes an allegation which is clearly in the general public interest or in the interest of other parties ...","As laid down in PERSON GPE ( judgment of DATE ) , there is a very extensive right to public criticism of the police . As in that decision there is , however , a difference between passing on and making allegations , just as there is a difference between criticism being directed at the police as such and at individual named officers in the police force . Even though being in the public eye is a natural part of a police officer \u2019s duties , consideration should also be given to his good name and reputation .","As stated , [ the applicants ] did not limit themselves in the programme to referring to the taxi driver \u2019s statement or to making value judgments on this basis about the quality of the police investigations and the chief superintendent \u2019s leadership thereof . Nor did [ the applicants ] limit themselves to making allegations against the police as such for having suppressed the taxi driver \u2019s explanation ; they alleged that the named chief superintendent had committed a criminal offence by suppressing a vital fact .","When [ the applicants ] were producing the programme , they knew that an application had been made to ORG for the case against X to be reopened and that , as part of ORG proceedings in dealing with the said application , the taxi driver had been interviewed by the police on DATE at the request of ORG \u2019s defence as part of the proceedings to reopen the case . In consequence of the ongoing proceedings for reopening the case , [ the applicants ] could not count on the chief superintendent and the QUANTITY police officers who had interviewed the taxi driver in DATE being prepared to participate in the programme and hence possibly anticipate proceedings in ORG . Making the allegations can not accordingly be justified by lack of police participation in the programme .","[ The applicants\u2019 ] intention , in the programme , of undertaking a critical assessment of the police investigation was legitimate in relation to the role of the media as public watchdog , but this does not apply to every allegation . [ The applicants ] had no basis for making such a serious allegation against a named police officer , and [ the applicants\u2019 ] opportunities for achieving the aims of the programme in no way required the questions upon which the charges are based to be included .","On this basis , and even though the exemptions provided in LAW must be narrowly interpreted and LAW protects not only the content of utterances but also the manner in which they are made , we agree that the allegation made was not caught by the exemption in LAW . Indeed , as a result of the seriousness of the allegation , we agree that there is no basis for the punishment to be remitted in accordance with LAW . We agree further that there are no grounds for a remittal of penalty under LAW .","We also concur with the findings on defamation .","We agree with ORG that the fact that the allegation was made in a programme on the national television station ORG and hence could be expected to get widespread publicity \u2013 as indeed it did \u2013 must be regarded as an aggravating factor for the purposes of LAW . Considering that it is DATE since the programme was shown , we do not find , however , that there are sufficient grounds for increasing the sentence .","For the reasons given by ORG , we find that [ the applicants ] must pay damages to the heirs of the chief superintendent . In this connection , it should be noted that it can not be regarded as crucial that the nature of the claim for damages was not stated in the writ of CARDINAL DATE , since the chief superintendent \u2019s claim for financial compensation could not relate to anything other than damages . Due to the seriousness of the allegation and the manner of its presentation , we find that the compensation should be increased to DKK CARDINAL . \u201d","The minority of CARDINAL judges who argued for the applicants\u2019 acquittal held , inter alia :","\u201c We agree that the statements covered by the indictment , irrespective of their having been phrased as questions , have to be regarded as indictable under LAW and that [ the applicants ] had the requisite intention .","As stated by the majority , the question of culpability must be decided in accordance with LAW , taken together with LAW , interpreted in the light of LAW and ORG restrictive interpretation of the exemptions under LAW .","In reaching a decision , consideration must be given to the basis on which [ the applicants ] made their allegations , their formulation and the circumstances under which they were made , as well as [ the applicants\u2019 ] intentions in the programme .","... We find that [ the applicants ] had cause to suppose that the taxi driver \u2019s statement that she had seen X on DATE shortly past TIME was true . We further find ... that [ the applicants ] had reason to assume that the taxi driver , when interviewed in DATE , had told the CARDINAL police officers that she had seen X ... We accordingly attach weight to the fact that it is natural for such an observation to be reported to the police ; that it is also apparent from her explanation in the police report of DATE that she had already told the police about her observations in DATE ; and that her explanation about the reaction of the police to her information that X \u2019s son had been in the car strengthened the likelihood of her having reported the observation at the interview in DATE .","... It is apparent from the television programme that [ the applicants ] were aware that the Frederikshavn police had not at that time complied with the requirement to offer a person interviewed an opportunity to see the records of his or her statements . [ The applicants ] may accordingly have had some grounds for supposing that the DATE report did not contain the taxi driver \u2019s full statement or that there was another report thereon ...","We consider that [ the applicants ] , in putting the questions covered by the indictment , did not exceed the limits of the freedom of expression which , in a case such as the present one , which relates to serious matters of considerable public interest , should be available to the media . We also attach some weight to the fact that the programme was instrumental in ORG decision to hear witnesses and we attach some weight to X \u2019s subsequent acquittal .","Overall , we accordingly find that [ the allegation ] is not punishable by virtue of LAW ...","[ We agree that ] the allegation should be declared null and void since its veracity has not been proved ... \u201d","The relevant provisions of LAW applicable at the time read as follows :","\u201c If a person in the exercise of a public office or function has been guilty of false accusation , an offence relating to evidence ... or breach of trust , the penalty prescribed for the particular offence may be increased by not more than one - half . \u201d","\u201c CARDINAL . Any person who gives false evidence before a public authority with the intention that an innocent person shall thereby be charged with , convicted of , or subject to the legal consequence of , a punishable act shall be liable to mitigated detention [ h\u00e6fte ] or to imprisonment for a term not exceeding six years .","Similar punishment shall apply to any person who destroys , distorts or removes evidence or furnishes false evidence with the intention that any person shall thereby be charged with , or convicted of , a criminal act ... \u201d","\u201c CARDINAL . Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to mitigated detention .","...","When imposing sentence it shall be considered an aggravating circumstance if the insult was made in printed documents or in any other way likely to give it wider circulation , or in such places or at such times as greatly to aggravate the offensive character of the act . \u201d","\u201c If an allegation has been maliciously made or disseminated , or if the author has no reasonable ground to regard it as true , he shall be guilty of defamation and liable to mitigated detention or to imprisonment for a term not exceeding DATE . If the allegation has not been made or disseminated publicly , the punishment may , in mitigating circumstances , be reduced to a fine . \u201d","\u201c CARDINAL . An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others .","NORP The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true . \u201d","\u201c The penalty prescribed in LAW may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation . \u201d","Section CARDINAL of ORG read as follows :","\u201c ( CARDINAL ) The relevant parts of the given testimonies must be included in the reports and particularly important parts of the testimonies should as far as possible be reported using the person \u2019s own words .","( CARDINAL ) NORP The person interviewed shall be given the opportunity to acquaint himself with the report . Any corrections or supplementary information shall be included in the report . The person interviewed shall be informed that he is not obliged to sign the report .","( CARDINAL ) Audio recordings of the interview may only take place after informing the person interviewed . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10","6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85861","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"HIGHAM v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE . On DATE , the applicant made a claim for widows\u2019 benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59219","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2001,"docname":"CASE OF CICEK v. TURKEY","importance":2,"conclusion":"Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Life)","judges":"Elisabeth Palm;Feyyaz G\u00f6lc\u00fckl\u00fc","text":["The applicant , PERSON , who was born in DATE , is a NORP citizen and lives in GPE , a village in GPE of the province of GPE in LOC GPE . Her application is brought on behalf of herself , as well as of her CARDINAL sons , GPE ( DATE in DATE ) and PERSON ( DATE in DATE ) and her grandson PERSON , who have allegedly disappeared in circumstances engaging the responsibility of the State .","The facts surrounding the disappearance of the applicant \u2019s CARDINAL sons and her grandson are disputed . The facts presented by the applicant are contained in LAW below . The facts as presented by the ORG are set out in LAW .","A summary of the documents that are submitted by the applicant and the Government in support of their assertions and the evidence gathered from the witnesses at hearings conducted in GPE by the ORG is given below in Part C.","On DATE at TIME , CARDINAL soldiers from ORG raided the applicant 's village . Leaving their vehicles at the entrance of the village , they arrived on foot .","The soldiers went round the houses to wake villagers up , telling them to gather by the mosque and to bring their identity cards with them . When CARDINAL villagers gathered by the mosque , the soldiers collected the identity cards of the male villagers . The women and children were sent home , as a result of which they were not able to witness what happened next . According to what the applicant was told by the male villagers who were present , the soldiers carried out an identity check by calling out the ORG names CARDINAL by CARDINAL from a list . Thereafter , the soldiers gave back the villagers\u2019 identity cards except for those of FAC , PERSON , PERSON , PERSON and PERSON ( the applicant 's son ) . These CARDINAL villagers were told to stand aside . The identity card of GPE ( the second son of the applicant ) was initially returned but he was immediately called back and sent to join the other CARDINAL .","NORP The soldiers left the village , taking these CARDINAL villagers into custody . Witnesses confirmed that the detainees were taken to ORG . It is alleged that PERSON , PERSON and PERSON were ill - treated there .","It appears that , on DATE of their custody , the soldiers separated GPE and PERSON from the other detainees saying that they were releasing the CARDINAL brothers and would release the rest of them as well .","On DATE , the other CARDINAL villagers were released . When they returned home , they were surprised to find that GPE and PERSON had not come back although they had been released .","After DATE subsequent to the detention of her sons , the applicant contacted a villager who had been released from ORG , where she believed her sons had been detained . Upon the applicant \u2019s description of her sons , the villager affirmed that he had been detained with CARDINAL brothers , who corresponded to her description .","The applicant also met another villager released DATE from custody at ORG . When the applicant described her sons and asked whether he had seen them , this villager confirmed that he had been detained with someone who resembled GPE .","The applicant was told by witnesses that , on DATE , GPE 's son PERSON ( i.e. her grandson ) was taken away by security forces from the garden of their family house . PERSON , who was DATE at the time of the events , is visually impaired ; he can not see at all at night and his vision is limited to QUANTITY in daylight .","The applicant has made several applications in search of her sons and grandson . She went to ORG on CARDINAL occasions and asked about them . She was told that they could not help her . The applicant is elderly , lives in a village and can not speak NORP . This limits the enquiries she can make . Her daughter , PERSON , who lives in GPE , submitted verbal petitions to ORG . She was given a verbal reply to the effect that her brothers and nephew ( i.e. the applicant 's sons and grandson ) were not in custody .","The Government state that the applicant \u2019s sons and grandson were not taken into custody by the security forces and deny that an operation had been conducted in Dernek on DATE by the security forces . They note that this village did not fall within the zone between GPE and ORG districts in ORG , where military operations were conducted DATE . In this respect , the Government refer to custody records that do not mention the names of PERSON , PERSON and PERSON and to the testimonies of CARDINAL villagers from Dernek , who confirm that no operation was carried out in their village on DATE .","A full scale investigation based on the applicant \u2019s allegations was first initiated by FAC and later a preliminary investigation was initiated by the ORG public prosecutor under file number CARDINAL . The village muhtar PERSON and another habitant of the GPE , PERSON , were heard by the gendarmes on DATE . Another subject living in Dernek , PERSON , stated before the gendarmes that he did not remember any operation taking place in his village and those names read to him had not been detained as alleged . The public prosecutor of ORG heard on DATE PERSON , PERSON , PERSON and PERSON as witnesses in this case .","The ORG also maintain that there are strong grounds to believe that the applicant \u2019s sons , GPE and PERSON , have moved to GPE , where they have relatives .","The parties submitted various documents concerning the investigation following the disappearances of PERSON , PERSON and PERSON .","The custody records of ORG concerning tthe period between DATE and DATE show that PERSON had been taken into custody on DATE and released on DATE .","NORP The custody records of ORG and ORG in GPE for the period DATE do not contain the names of PERSON , PERSON and PERSON .","Upon the request of the Commission delegates the Government submitted the plan of ORG . The plan includes the ground floor , the first floor and the second floor , whereas it does not contain the basement .","The second commando regiment reported that DATE military operations had been conducted in PERSON , PERSON , Daltepe , Mizag\u00fcl Da\u011f\u0131 , PERSON and GPE regions , situated between GPE and Lice Districts , in the LOC province . According to this report , Dernek and ORG villages , albeit near , remained outside the operation area .","In this statement , the witness was asked about his knowledge and observations as regards PERSON allegations as stated in her application to ORG . He replied that he did not recall whether or not an operation had been carried out in the village on DATE . He maintained that FAC , PERSON , PERSON and PERSON had not been taken into custody . He further stated that these persons were not actually living in the village .","In his statement , the witness was asked about his knowledge and information about the allegations of PERSON as stated in her application to ORG . In reply , the witness stated that he did not remember an operation being conducted on DATE . He stated that the persons mentioned in the application had not been taken into custody by the security forces .","In his statement , the witness explained that DATE soldiers had come to Dernek and questioned the villagers about terrorists who made frequent visits to the village . Subsequently , he was arrested together with PERSON , PERSON , PERSON , PERSON and PERSON and taken to ORG . The witness explained that , on their arrival , the soldiers blindfolded them and placed them all in the same room . On DATE of their detention they were taken to another military base in ORG and released from there . According to him , PERSON and GPE had been released DATE . The witness further maintained that no one had been ill - treated in custody . He had not seen PERSON PERSON or GPE after their release and had no information concerning PERSON \u2019s disappearance .","The witness explained that DATE , on a DATE , early in the morning , soldiers had come to their village , carried out an identity check and arrested PERSON , PERSON , PERSON , PERSON , PERSON and himself . They were then taken to ORG , together with some other detainees from neighbouring villages . At the boarding school , they were all blindfolded and put in a room close to the hamam , in the basement of the building . The witness maintained that during the TIME they spent in custody , the detainees were not interrogated by the soldiers . They were released from the Regiment on DATE , whereas GPE and PERSON had already been released on DATE . He had no information on their whereabouts or on PERSON disappearance . Moreover , he had not heard or seen PERSON and PERSON being ill - treated in custody .","In his statement to the public prosecutor , PERSON stated that DATE , soldiers had come to their village and asked the villagers to gather by the mosque . The soldiers then separated PERSON , PERSON , PERSON , PERSON , PERSON and himself from the others and took them to ORG . The witness stated that there had also been other detainees from neighbouring villages . The soldiers kept the detainees in the basement of the boarding school for DATE and DATE . According to the witness , GPE and PERSON had been released on DATE and the remaining detainees , including the witness , on DATE . The witness stated that GPE had a taxi and had been travelling quite frequently . The witness further maintained that DATE subsequent to their detention , a new operation was carried out in GPE , after which GPE \u2019s son PERSON also disappeared . PERSON stated that his eyes were blindfolded while in custody but , as there were no soldiers in the room , the detainees were able to communicate with each other . He also maintained that no one had been ill - treated while in detention . The witness finally stated that he had no idea as to the whereabouts of the CARDINAL brothers .","The documents contain a description of steps taken by PERSON in her search for her relatives .","On DATE PERSON filed CARDINAL petitions with ORG asking whether her brothers , who had been taken away by the security forces on DATE , were actually held in custody . She only received a verbal reply to the effect that they were not in custody . The same day she filed another petition with the public prosecutor as regards the disappearance of her nephew , PERSON . Again , verbally , she was told that PERSON was not in custody .","In her statement to the ORG , PERSON stated that she had been living in the village of Dernek , in GPE , ORG and gave the following account concerning the disappearance of her CARDINAL sons , PERSON and PERSON , and her grandson , PERSON .","On DATE soldiers from the ORG raided their village and told the villagers to gather by the mosque . An identity check was carried out and , subsequently , the women and children were sent home . Hamsa could therefore not see what followed . According to what she heard from other villagers , the soldiers arrested FAC , PERSON , PERSON , PERSON and her CARDINAL sons PERSON and PERSON , and took them to ORG . Hamsa was told that her sons had been released on DATE of their detention and the remaining detainees on DATE .","After DATE following the detention of her CARDINAL sons , PERSON met a villager who had been detained with her sons . Upon her description , the villager told PERSON that he had seen her sons in custody . He also said that he had been ill - treated in custody like almost everyone who had been there .","Subsequently , PERSON met another villager released from ORG DATE . This villager told PERSON that , while in custody , he had seen someone who could have been GPE and who seemed to be in suffering due to ill - treatment . This villager confirmed that he had last seen the person who resembled GPE at ORG .","According to what PERSON was told on DATE , GPE \u2019s son PERSON had also been taken away by the security forces from the garden of their house .","Hamsa further stated that she had requested information from ORG as regards her CARDINAL sons and her grandson . In reply , she was told that the ORG Commander could do nothing to help her . Moreover , PERSON daughter , PERSON , filed CARDINAL petitions with ORG , who informed them that PERSON and PERSON were not in custody . PERSON stated that she was concerned that her sons might have been killed in custody by security forces .","The Commission conducted CARDINAL hearings in GPE DATE and DATE and took oral evidence from CARDINAL witnesses . The evidence of the witnesses may be summarised as follows .","The applicant , who was born in DATE , was currently living in GPE . At the time of the events , she was in the village . She confirmed that she had lodged a petition with ORG ( ORG ) about the disappearance of her CARDINAL sons , PERSON and PERSON , and her grandson , PERSON . She further stated that she had instructed PERSON to represent her before ORG .","In DATE PERSON was living in Dernek in his own house situated opposite that of the applicant \u2019s . He was married and had CARDINAL children . PERSON , who lived with the applicant , was preparing for his military service . The applicant had also CARDINAL more daughters . PERSON was GPE \u2019s son and lived with his father .","On DATE of the incident , early in the morning , leaving their vehicles at the entrance of the village , soldiers came to the village on foot . They ordered the villagers to gather by the mosque . The applicant assumed that these soldiers came from ORG . They carried out an identity check . Making CARDINAL of the villagers stand aside , including the applicant \u2019s son PERSON , they told the rest of the villagers to return home . Although the soldiers released GPE at first , they called him back TIME and ordered him to join the group of CARDINAL .","From a distance , the applicant had seen PERSON and GPE being arrested . The soldiers ordered the detainees to strip naked to search them . When they left , the applicant tried to follow but was blocked by QUANTITY gendarmes . Later , she heard that the detainees had been taken to the regional boarding school . On QUANTITY occasions , she went to the commandos from FAC and asked about her sons . She was referred to the ORG .","The applicant explained that ORG was partially used by the military . The building housed students and teachers as well as soldiers . According to what the applicant had heard , her sons had been released DATE of the rest of the detainees , who showed surprise at not seeing GPE and PERSON in Dernek on their return .","The applicant had also heard that her sons suffered ill - treatment in custody . Some other detainees claimed seeing them in wet clothes .","When the applicant went to see ORG , a captain received her . The mayor of the village accompanied her , as she could not speak NORP . The captain told the applicant that he had no information about her sons , but that it was possible that gendarmes from the Bolu region might have information about this incident . However , when she visited the commander a second time , the gendarmes from Bolu were not mentioned .","The applicant explained that GPE had disputes with some of the villagers . He had been taken into custody DATE before his disappearance , on his way home from a wedding . She was told that a young man , called Cihat , son of the village mayor at the time , denounced GPE to the gendarmes . When GPE was released from custody DATE , he accused the mayor , PERSON , of spying on him and the mayor had to leave the village . The applicant further claimed that , when she went to ORG in search of information on her sons , she came across ORG , who told her that PERSON had been killed and that GPE was in the hands of the soldiers .","DATE after the disappearance of her sons , the applicant learned that her grandson , PERSON , had been arrested by the soldiers . She was not in the village at the time of the incident , but was told that PERSON had been taken away from their garden by soldiers . The applicant explained that she was concerned about her grandson \u2019s fate as he suffered from poor health .","The witness , who was born in DATE , was the applicant \u2019s daughter . She lived in GPE , where she had moved DATE . She gave the following account as regards the disappearance of her CARDINAL brothers and her nephew . At the time of the events , her brothers , PERSON and GPE , lived in GPE . GPE lived with his family in a house close to their mother 's and PERSON lived with his mother . DATE before the alleged incident GPE had been arrested on his way home from a wedding , upon a complaint filed against him by a young man . The witness had last seen her CARDINAL brothers DATE prior to their disappearance , when they brought her belongings to ORG . The witness explained that the family had no enemies in Dernek and that there was no conflict within the family .","On DATE towards TIME , she received a telephone call from GPE , the son of PERSON . GPE told her that CARDINAL people from the village had been arrested including his father and her QUANTITY brothers . She went to Dernek immediately .","She reached the village that TIME , and was told by her mother that the soldiers had raided the village in TIME , searching all the houses and ordering everyone to gather at the square by the mosque bringing their identity cards . The men and women had been separated . After an identity check , CARDINAL men were set apart , including PERSON . These CARDINAL men were stripped naked and searched .","According to her mother \u2019s account , there had been CARDINAL soldiers . The villagers also told her that there had been different types of soldiers ; the first group wore blue berets , while those in the second had none . She was further told that the soldiers had then gone to GPE \u2019s house to arrest him as well . The detainees were then taken away on foot . Although her mother and some other villagers tried to follow the group , they were told to turn back . The testimony of other villagers confirmed her mother 's story .","The witness explained that she had stayed in Dernek for DATE and then returned to ORG . DATE , when a minibus driver coming from PERSON told her that CARDINAL of the detained villagers had been released , she went back to Dernek .","In Dernek , she spoke to PERSON , released from custody that DATE . He told her that her brothers had been released DATE . PERSON also affirmed that they had been taken to the boarding school together and kept there blindfolded until TIME DATE . He recalled that first PERSON and then GPE had been taken away for interrogation . He told the witness that PERSON had been ill - treated and a statement had been taken from him . GPE did not mention what happened to GPE , though he told the witness that PERSON and GPE had been taken away . He did not know where they went but when he was given back his identity card , he got the impression that the CARDINAL brothers had already been released .","The witness submitted that apart from the CARDINAL villagers , a crippled man , also detained in the regional boarding school , had seen her brothers . A minibus driver , who drove this person to his house after his release , informed the applicant that there was someone who had seen her brothers in custody . Consequently , the witness went to see this man , who told her that he had been detained with CARDINAL brothers . The man said that CARDINAL of the brothers told him that he came from a village , which was not Dernek . He recalled that although he had not spoken to the other one , he had the chance to see both of them from beneath his blindfold . He described CARDINAL as a bit on the short side , plump and balding , and the second as very slim . The witness decided that the first description corresponded to GPE and the second to PERSON .","NORP Moreover the witness learned from her mother that a certain GPE , also detained in FAC , told her mother that he and GPE had been chained together in prison for DATE . GPE had been more or less unconscious and had kept repeating the name of his daughter .","The witness further explained that DATE after the arrest of her brothers , her nephew PERSON , GPE 's son , had also been arrested . At that time she had been in the village . In TIME his mother put PERSON on a donkey and sent him to the fields . PERSON did not come back . TIME , they were contacted by a relative who claimed she saw PERSON being taken away by soldiers from the field along with CARDINAL other women . The witness recalled that the soldiers had passed through the village on DATE when PERSON was arrested .","The witness maintained that her mother had tried everything to locate her sons . She explained that she , herself , applied to ORG , where a lawyer prepared petitions for her . She took these petitions to ORG , who verbally replied that these people were not in custody . The petitions were not registered and nothing was written on them . However , she was given a paper and told to go to the security forces .","The witness was a non - commissioned senior gendarme sergeant . He was commander of the central gendarme station in ORG at the time of the events . He explained that in DATE , ORG was a very considerable ORG activity area , and the gendarmes from ORG paid frequent visits to the villages in and around the district . Military units , which came from time to time to ORG were lodged at the regional boarding school for a period of DATE . These units participated in operations with the gendarmes . However , they were under the command of their own unit commander , who generally held a higher rank than the district gendarmes commander . The witness explained that prior to an operation , the CARDINAL units studied maps of the area and shared out tasks . Before such a unit arrived or left the region , a written message was sent to all other units who had to ensure their security .","During operations all soldiers wore the same uniform for security reasons , including the commandos , who normally wore \u201c blue berets \u201d When gendarmes paid a visit to a village , they acted in accordance with the orders received . Sometimes they just talked to villagers to warn them not to support or help the ORG .","The witness stated that CARDINAL villages were within his jurisdiction . He dealt with their judicial and security problems , taking over the duties of the police . He recalled having gone to Dernek a couple of times , as it was his duty to visit the villages frequently . There were a few ORG supporters in that village and he had heard about PERSON . He explained that if GPE and PERSON had been taken into custody , their names would definitely appear in the custody records .","When soldiers planned to enter a village , the superior commander was immediately informed by a written message , which indicated the number of persons who would take part in the operation and the leader of the group . All messages were registered . They also kept a logbook , in which all incidents were recorded , if necessary , TIME . To verify whether soldiers had been to Dernek on DATE , it would suffice to check records , which would indicate exactly where the gendarmes had been on DATE . The soldiers lodged in the regional boarding school also kept records as they assisted gendarmes during operations .","The witness further submitted that the district gendarme headquarters had custody facilities for CARDINAL detainees . If there were more , they were put in an office under the supervision of a soldier . Detainees were initially kept in the offices and then placed in the detention area . At that stage , their names were not registered . Following the interrogation , if it was established that the detainee had committed an offence , he was transferred to ORG office . If not , he was released . The commando units did not have the authority to take people into custody . If they found a person who had committed an offence , they would hand this person over to the gendarmes .","There were no detention facilities at ORG . If an army unit , based at the boarding school , took part in an operation with the gendarmes and arrested a number of villagers , then it could be possible that these people were first brought to the regional boarding school before being referred to the gendarmerie .","If the military found people on the \u201c wanted \u201d list during an identity check , they had to inform the gendarmes by phone or radio who would then take over . When placed in detention , a person \u2019s name would be registered in a custody ledger book and he would be searched . Only after these steps , could he be placed in custody . Some detainees might be referred to the intelligence unit of the gendarmerie in ORG for further investigation .","The witness , who was a captain at the time of the incidents , was commander of ORG . He was based in ORG DATE and DATE .","DATE . The witness , who knew ORG , had never actually entered it , though he had passed by frequently . Dernek was known to give considerable support to the ORG . He had not met PERSON personally although he had heard that the PERSON family had connections with the ORG . He recalled that PERSON was a name used by several families , not all of whom were ORG supporters . On the dates in question he had not taken part in an operation where suspected terrorists had been arrested or detained .","All military units , when engaged in an operation , sent a message or an operation information form \/ pro forma document indicating the time , place and purpose of the operation and the units that would be involved in it . This was conveyed to the superior officer . Such operations should be distinguished from the regular visits made by gendarmes to villages for administrative and judicial purposes . When the witness received information on terrorist presence in the area , he had to complete a pro forma message for his superiors . Whenever someone was taken into custody , be it during an ordinary visit or during an operation , soldiers had to inform their superior of this . Anyone taken into custody was registered in the ledger and the public prosecutor was subsequently notified .","Lice consisted of a settlement area involving CARDINAL villages divided into CARDINAL sections and each section was attached to a gendarme station . There were CARDINAL gendarme stations under the command of the witness , including the central gendarme station commanded by PERSON and to which Dernek was attached .","From time to time military units were based in the regional boarding school . In general , the gendarmes alone were responsible for security in rural areas . However , if the forces were insufficient to control a particular situation , reinforcements would be requested and infantry or ground forces deployed in the area . In joint operations , the most superior officer of the participating units would take command . Although the witness was independent in the execution of his administrative \/ judicial powers , he nevertheless had responsibility towards the Governor for his administrative acts and to the district public prosecutor for judicial ones .","The reinforcement units could never perform the gendarmes ' judicial duties . If these units went out on an operation in the mountain areas and found a suspect , they would wire the gendarmes to check whether the individual was wanted and , if so , then could bring him in . The reinforcement units had a totally different system of records and , as far as the witness knew , did not use service ledgers or custody records , given that they had no judicial functions to perform . During operations , the \u201c blue beret \u201d gendarme commanders removed their caps and wore normal army caps for camouflage .","The witness did not accept that anybody detained during a joint military and gendarme operation could be taken even temporarily to the regional boarding school . He explained the difference between taking a person into custody and putting him in a custody room . To render a suspect ineffective and perform a body search , the witness had the authority to keep the person near him , for example in the cafeteria under guard . That suspect might then be released within TIME . Such a person would not be put in a custody room and therefore would not be mentioned in a custody ledger . The witness said that this was \u201c taking somebody in for observation \u201d and not custody . The suspect \u2019s statement would be taken and , if guilty of an offence , he would be put in the custody room and mentioned in the ledger . If someone was clearly dangerous and required interrogation or was to be kept TIME , he would definitely be placed in the custody room and registered in the ledger . However , if somebody were to be sent straight to ORG for interrogation for terrorist offences , he might not be mentioned in the ORG records . As there was no interrogation unit in ORG , people were sent to ORG or sometimes an interrogation team was invited to come to ORG . Sometimes a person 's interrogation would reveal other names , in which case ORG might request their arrest and dispatch to ORG .","The witness further explained that he had not checked the records before coming to the hearing and did not remember exactly what he was doing on CARDINAL DATE . However , he had checked that he had not been in GPE on DATE . He could not recall anyone who had asked information about their relatives in detention . He had no comment on the fact that some people had disappeared in the Lice area in DATE .","The witness stated that he had been commander of ORG in DATE . His whole unit consisted of CARDINAL men . Mr PERSON was his district commander and PERSON , his station commander . His job was to secure an area . The administrative and judicial tasks were performed by other gendarmes . He had never seen commandos search or detain people or carry out identity checks . The \u201c blue berets \u201d of the commando units were not used in operations as they were too conspicuous .","DATE . It was possible that commando units based in the regional boarding school be sent out on an operation . There was a unit of CARDINAL soldiers stationed at the regional boarding school to ensure security in the region , given the number of schools that had been burned down . ORG units did not keep separate written records or DATE service ledgers . They reported to the superior officer after completing their activities . If they had taken part in an operation , it would be indicated on the operation pro forma beforehand . However , the preparation of this form was not his task but that of the district gendarmes commander . His duty was training and exercise of his men . Anyone caught by his forces would be taken directly to the gendarmes headquarters . The district gendarmes had exclusive authority to detain people .","He knew the village of Dernek but had never actually gone into it . He had passed by . He had not participated in any operation in that village around DATE . It would be difficult to say which units had been involved in such an operation . If it was a major operation , then all the commando units in the area would have participated ; otherwise , it would have been just the local gendarmes .","The witness lived in Dernek . He knew GPE and PERSON , both fellow villagers . GPE was married and had QUANTITY children ; he lived in a house close to his mother \u2019s , near the mosque . He owned a taxi and was occasionally away from the village . PERSON was a bachelor and lived with his mother .","On DATE , CARDINAL gendarmes came to the village on foot early in the morning . The villagers were already up for their TIME prayers . The witnesses could not recall whether the soldiers were commandos or gendarmes from ORG . He did not recognise any of the gendarmes or their commanders . He stated that , before DATE , when soldiers came to the village , they had gone straight to the mountains in search of terrorists . The villagers had not been disturbed .","The witness could not remember exactly on DATE they had been detained . He thought it might have been a DATE . On DATE of the operation , the soldiers ordered all the villagers to gather by the mosque . They took everyone \u2019s identity cards and compared the names with a list . The soldiers then returned most of the identity cards except for those of PERSON , GPE , PERSON , PERSON , PERSON and himself . The rest of the villagers went home . The soldiers also searched the houses , and subsequently took the CARDINAL villagers directly to the regional boarding school on foot .","The witness said they were not blindfolded at first . They walked to the boarding school , which he knew well as his children had studied there . He confirmed that part of the building was used by the military . At the school they were blindfolded , but their personal belongings were not registered . Neither did they undergo a medical examination .","They were kept all together in the basement of the building near the toilet and washing area . Their hands were free but their eyes were blindfolded The witness asserted that he knew PERSON and ORG had been with him because they sat side by side and could talk quietly . At night they slept on chairs . They were given bread , biscuits and water .","During their detention no explanation was given as to the reason of their arrest . He was the only one to be interrogated . He was asked whether his son had joined the guerrillas in the mountains and he told the soldiers that his son was in GPE . Then he was asked about his son \u2019s precise address ; he told the soldiers that he did not know and was released . The soldiers only took his statement . He emphasised that no one had been ill - treated while they were in the boarding school .","The witness stated that they had stayed at the school for DATE . The soldiers released GPE and PERSON on DATE . He had heard someone say \" PERSON , PERSON , take your identity cards , you 're free \" . The others stayed TIME in the boarding school . On DATE the rest of the detainees were taken to the regiment on the border of ORG and released from there . The witness could not make out whether the soldiers were commandos or army regulars . A helicopter came and they were told that the villagers from Dernek were to go out . They were then told that they were free . The witness and the other detainees went to the ORG station DATE to get their identity cards back . The witness explained that the ORG gendarme station and the regiment were distinct organisms .","When the witness returned home , the villagers asked him about PERSON and GPE . He told them that PERSON and GPE had already been released . The witness stated that he never said to PERSON that either he or her sons had been ill - treated .","Tahsin had a son , called ORG . The witness had not been in the village at the time when PERSON disappeared . When he returned , he was told that PERSON was not in the village any more .","The muhtar of Dernek in DATE was PERSON . He was a neighbour of the witness , who also knew the muhtar \u2019s son , Cihat . Although Cihat had not been taken into custody , he had followed the group to the regional boarding school . When the soldiers asked him why he was coming with them , Cihat answered that he had lost his identity card and wanted to have a new one issued . He consequently went with the detainees to ORG . The witness had not seen him after DATE . Cihat was not kept with the detainees at the regional boarding school .","The witness lived in Dernek and was in the village during the incident of CARDINAL DATE . GPE and PERSON were sons of his uncle 's daughter , PERSON .","NORP In DATE before they were taken into custody - GPE had been arrested during the wedding of the NORP son in the district . The witness explained that some men had come and taken GPE away and released him DATE . He did not know the reason of this arrest .","In DATE the witness was in the village when the operation took place . According to the witness there were around CARDINAL soldiers , some of them commandos , though he could not be sure . The soldiers gathered the villagers and carried out an identity check . A soldier had a list of names but the witness could not see the list . The soldiers separated QUANTITY or CARDINAL villagers and the witness from the rest and took them to ORG . GPE and PERSON were amongst those arrested . The soldiers also brought people from other hamlets . The witness could not remember how many detainees there were in total . The detainees were taken to the square near the school on the lower side of the village . The soldiers searched all the houses . From the square they were taken on foot to ORG . As soon as they were inside the building , they were blindfolded . In the boarding school there were students as well as soldiers . From the room where they were kept , the detainees could hear the children talking outside .","When they arrived at the boarding school , the soldiers did not take down their details or enter their names in a register . Their identity cards were not given back . They were taken to the basement of the building near the toilet and washing area . They were all kept together in the same room , together with villagers from other hamlets . There were no chairs or tables in the room . The floor was concrete and they sat on the floor . They were all blindfolded . PERSON and GPE were in the same room with the witness , sitting next to him . The witness was not interrogated . The detainees managed to talk quietly to each other although it was forbidden . When necessary , the detainees collected money and the soldiers bought food for them . The witness gave some money to PERSON and asked him to give it to a soldier to buy bread . A soldier brought them bread . However , they never talked about why they had been taken into custody .","According to the witness , they were taken out CARDINAL by CARDINAL to give statements . The soldiers did not question him , but the witness confirmed that GPE and PERSON had been taken for questioning . However , he had no knowledge as to what they had been asked about . The witness stated that he could not recall how many times the CARDINAL brothers had been taken away for interrogation .","The witness submitted that he had not been subjected to ill - treatment whilst he was held in the regional boarding school . For TIME they waited in the room and were then taken to the regiment and released from there . The witness continued that he had not heard anyone else being ill - treated . However , he stated that he had not seen anything because of the blindfold . GPE had been sitting next to him and PERSON coat lay near him . The soldiers took GPE and PERSON away from the room for TIME and later brought them back . The witness stated that he did not know whether they had taken them to another room or outside . They were detained on a DATE , and on DATE GPE and PERSON were released . The soldiers read out their names and probably returned their identity cards too . The witness heard a voice say , \" Go now . You 're both free . \" He was sitting on PERSON coat when they took him away . PERSON must have told the soldier about his coat as the soldier came back and told the witness to give PERSON coat . The witness stated that he did not know where the brothers were taken and added that he had not seen them since then . Thereafter , on DATE , the soldiers released the rest of the detainees . The soldiers removed their blindfold when they arrived at the regiment . The witness explained that the regiment was in the centre of ORG . They waited there for TIME and were then released . They were told to come back in a DATE 's time to get their identity cards .","All the detainees then returned to the village . PERSON and ORG mother came and asked the witness about her sons\u2019 whereabouts . The witness told PERSON that her sons had already been released on DATE . PERSON told him that they had not come home .","The witness explained that he did not say to PERSON that PERSON , GPE or himself had been ill - treated at the boarding school . He had not been subjected to ill - treatment . The witness further pointed out that it was possible that the brothers might have been ill - treated when the soldiers took them out of the room . However , he had not heard or seen anything .","The witness further stated that he did not know where PERSON was . GPE had many sons , including PERSON , who was blind . He had heard that PERSON had disappeared from the village . He , however , had not seen anything . He had no knowledge as to why they had taken PERSON . He had heard that PERSON had disappeared CARDINAL or DATE after the operation . By that time , the witness was in ORG . He was not aware that there had been an operation .","The witness confirmed that he had talked to ORG \u00c7icek , PERSON \u2019s daughter once or twice . He last talked to DATE . In reply to ORG \u2019s question , he replied that he had witnessed the soldiers taking her brothers away . Feride then went to the Diyarbak\u0131r HRA and told them about the incident . She also asked him to testify in GPE . The witness confirmed that he repeated the story to the public prosecutor and insisted that he was not scared to testify on this matter .","The witness , a farmer , lives in Dernek and was in the village during the incident of CARDINAL DATE .","He knew that PERSON lived with his mother , PERSON . Tahsin lived in his own house with his own family and had CARDINAL children . PERSON used to work in the village but sometimes found jobs elsewhere . He had sheep , goats , animals and some agricultural land . He also had a taxi , which was taken from him before his custody . The witness explained that he had no knowledge of whether GPE had ever been in trouble with the authorities before DATE . He had not attended the wedding of PERSON son .","He was in the village when the operation took place . The soldiers came on foot during morning prayers . There were a lot of soldiers , however he could not discern whether they were gendarmes or regular soldiers . The soldiers had come to the village before this operation but had had nothing to do with the villagers ; they had gone up into the mountains . On DATE , however , they came and gathered the villagers . They carried out an identity check and kept some identity cards ( including the cards of the witness and CARDINAL other villagers ) . Finally the soldiers took them away . There were also other villagers from other hamlets . FAC , PERSON , PERSON , PERSON and PERSON were among those arrested . They were taken to ORG on foot . Although it was a boarding school , a part of the building was used by the soldiers . The witness had never been in the school before .","The soldiers did not take down the details of the detainees or register them in a record or ledger . They took away their belongings . In the school , they first blindfolded GPE and then the witness . He never had the chance to remove his blindfold .","The detainees were taken to a room in the basement of the building . It was made of concrete . It was a place like a bath ( hamam ) . As the witness was blindfolded , he could n't really see but noted that there was no furniture . All the detainees were fellow - villagers and there were a few people from nearby hamlets . Their hands and feet were not bound . The guards and soldiers remained near them to stop any attempts at conversation . However , the room was small and the detainees could speak covertly . The witness could hear the voices of GPE and PERSON , who were kept in detention for TIME . The witness was not taken to interrogation at any stage . The detainees were not informed of the reasons of their arrest . The witness stated that he did not know whether GPE and PERSON had been interrogated . The soldiers took them elsewhere ; he had no knowledge of what could have happened to them . He did not see PERSON or GPE being taken away for questioning at any stage of the detention .","The witness stated that he did not hear the soldiers call out PERSON and ORG names since his hearing was not good . It is possible that that they did so without his being aware . At some point he heard some detainees say that GPE and PERSON had been released and sent home . The soldiers later said that they had released the brothers . The other detainees stayed for TIME . They were then conveyed to the regiment in vehicles , still blindfolded , and released . Their identity cards were returned later . The witness went to his village and asked about GPE and PERSON . He was told that they had not come back . Their mother came to his house and asked him where her sons were . The witness told her that they had been released DATE . The witness stated that he had not been subjected to ill - treatment in detention . Neither had he told PERSON that others had been ill - treated . The soldiers had treated people well . After that date the witness did not see or hear anything about PERSON or GPE .","ORG . Tahsin had a son called ORG , who was blind . The witness did not know where he was . At the time when PERSON disappeared , the witness had been tending animals on the mountain . In TIME , he came down and was told that PERSON had disappeared . A long time had elapsed after their detention . The witness was not aware of a military operation in the village on the day PERSON disappeared .","The witness knew the muhtar \u2019s son Cihat as well . He had not heard anything about him either joining the ORG , or accompanying the soldiers during an operation ; nor did he know whether he had been the one who informed against GPE and PERSON . He did not know where PERSON was . When they were taken into custody , PERSON came with them in order to get his identity card . When they were released , he was n't with them .","The witness stated that he was not frightened to testify and had not told anyone that he was scared to testify .","The witness finally explained that as PERSON sons have disappeared , she lives by ORG . Her husband had died a long time ago in a traffic accident and she has CARDINAL or CARDINAL children with health problems .","NORP Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers\u2019 ORG ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces .","CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .","The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW","\u201c No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . \u201d","Article CARDINAL of LAW provides as follows :","\u201c All acts and decisions of the administration shall be liable to indemnify any damage caused by its own acts and measures . \u201d","NORP This provision is not subject to any restrictions even in the state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of \u201c social risk \u201d . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .","LAW makes it a criminal offence","- to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ,","- to subject an individual to torture and ill - treatment ( Articles CARDINAL and CARDINAL ) .","- to commit unintentional homicide ( Articles CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .","In respect of all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .","Generally , if the alleged author of a crime is a ORG official or a civil servant , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG , a refusal to prosecute is subject to an automatic appeal of this kind . If the officer is a member of the armed forces , he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of LAW .","Any illegal act by the civil servants , be it a criminal offence or a tort , which causes material or moral damage may be subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages awarded under LAW .","Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG security prosecutors and courts established throughout GPE .","NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":["2-1","5-1"],"violated_bulletpoints":[],"non_violated_articles":["14","2","3"],"non_violated_paragraphs":["2-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102383","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2010,"docname":"WENNER v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . Before he changed it in DATE , the applicant \u2019s family name was PERSON . He was represented before the Court by Mr M. Ficek , a lawyer practising in GPE .","The Government of GPE ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a single judge of ORG s\u00fad ) issued a penal order ( trestn\u00fd rozkaz ) finding the applicant guilty of theft and sentencing him to DATE in prison . The applicant challenged the order by way of an objection ( odpor ) which he later withdrew . The order thus became final and binding , on DATE .","Meanwhile , the applicant was charged with embezzlement on CARDINAL counts ( on DATE and DATE , respectively ) , continuing fraud ( on DATE ) , breach of the rules on the circulation of goods in foreign trade ( on DATE ) and fraud ( on DATE ) .","On DATE the applicant was arrested and , on DATE a single judge of the Bratislava II ORG remanded him in custody pending trial on the fraud charge of DATE .","The applicant was incarcerated in a detention centre ( \u00dastav na v\u00fdkon v\u00e4zby ) in GPE .","On DATE ORG ordered the enforcement of the penal order of CARDINAL DATE . The applicant was subsequently transferred from detention and put in prison ( \u00dastav na v\u00fdkon trestu ) in ORG to serve his sentence under that order ( for details see section \u201c B \u201d below ) .","On DATE , while the applicant was detained pending trial on the fraud charge of DATE , that charge and the remaining charges against him were joined to a single set of proceedings","Upon service of his sentence under the penal order of CARDINAL DATE , the applicant was again remanded in detention pending trial on the fraud charge of DATE and the remaining charges ( for details see section \u201c C \u201d below ) .","He was incarcerated in the PERSON detention centre .","On DATE , sitting in private ( neverejn\u00e9 zasadnutie ) , a single judge of ORG ordered what amounted to an end of the applicant \u2019s detention pending trial ( prep\u00fa\u0161\u0165a z v\u00e4zby ) and ruled that , immediately thereafter , he be transferred to prison ( ihne\u010f dodan\u00fd do v\u00fdkonu trestu ) in order to serve his DATE sentence under the penal order of CARDINAL DATE . The decision was to be implemented on DATE and , accordingly , the applicant was due to finish serving that sentence on DATE .","The decision of DATE was served on the applicant on CARDINAL DATE and a copy of it was sent to the GPE detention centre by fax on CARDINAL May CARDINAL . On the latter date the applicant was transferred from the detention centre to prison to serve his sentence under the penal order of CARDINAL DATE .","On DATE the prosecution service applied for a new order for detention of the applicant pending trial in view of the approaching end of his DATE prison sentence .","On DATE , sitting in private , a single judge of ORG ordered that , as soon as the DATE sentence under the penal order of CARDINAL DATE had been served , on DATE , the applicant be again detained pending trial in connection with the fraud charge of DATE and the remaining charges against him .","ORG judge referred to the order for the applicant \u2019s detention of DATE and its contents , including the fact that the applicant was not staying at the place of his registered residence ( trval\u00e9 bydlisko ) , that his whereabouts were unknown , that there had been CARDINAL warrants for his arrest issued and that he had been apprehended while attempting to commit another offence .","From DATE until his arrest the applicant had been involved in various property - related offences in CARDINAL districts , was unemployed and had no source of regular income . It was also observed that the applicant had CARDINAL previous convictions , mainly for property - related offences .","The order of DATE was enforced on DATE at TIME when the applicant was transferred from the ORG prison to the PERSON detention centre .","A copy of the decision of DATE was served on the applicant \u2019s lawyer on DATE . He lodged an interlocutory appeal ( s\u0165a\u017enos\u0165 ) on behalf of the applicant on DATE . He relied on the principle of presumption of innocence , argued that there was no risk that the applicant would reoffend and offered a pledge on the applicant \u2019s behalf that he would live in accordance with the law .","A copy of the decision of DATE was served on the applicant on DATE . In addition to the appeal lodged on his behalf by his lawyer , the applicant lodged an interlocutory appeal on his own .","In so far as it can be established from the documents submitted to the ORG , the applicant argued that the decision of DATE had been phrased in general terms , that there had been irregularities in transferring the applicant from the detention centre to prison , that the applicant had not been informed of the reasons for his arrest and had not been heard in person by a judge .","On DATE ORG ( Krajsk\u00fd s\u00fad ) upheld the decision of DATE .","It held that the applicant \u2019s transfer from the detention centre to prison had been in conformity with section CARDINAL of the Code of Criminal procedure , his detention was justified and his pledge could not be accepted as it had not been made directly by him .","On DATE the applicant lodged a complaint under LAW of the LAW with ORG ( \u00dastavn\u00fd s\u00fad ) . On DATE he amended his complaint .","Relying on LAW ) , CARDINAL and CARDINAL of the Convention and on their constitutional counterparts , the applicant challenged the decisions of ORG of DATE and of ORG as being unlawful and arbitrary .","In so far as can be established from the documents submitted to the ORG , the applicant argued in particular that , in its decision of DATE , ORG had failed to examine properly his objections against the decision of DATE . The applicant also asserted that the decision of CARDINAL DATE had been taken by a court which had no jurisdiction ratione loci to take it .","On DATE ORG declared the applicant \u2019s complaint inadmissible . It found that , in so far as the complaint related to the decision of ORG of DATE , it had been lodged outside the applicable DATE time - limit .","As to the remainder of the complaint , ORG found no constitutionally relevant error or arbitrariness in the decision of ORG of DATE .","On a number of occasions the applicant sought review by the public prosecution service of the legality of his detention and of the procedure followed in respect of it .","The public prosecution service acknowledged in letters of CARDINAL May and DATE ( ORG ) , DATE ( ORG ) and DATE ( ORG ) that ORG had erred in having transmitted its decision of DATE to ORG no DATE . As the decision was to have taken effect on DATE , the applicant had been kept in detention DATE longer and had started serving his DATE sentence DATE . This , however , had no impact on the lawfulness of the deprivation of the applicant \u2019s liberty as the extra time spent in the detention centre had been deducted from the time spent in prison ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105324","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2011,"docname":"NASIRKHAYEVA v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who lives in GPE , GPE . She is represented before the Court by PERSON NORP ORG , a lawyer practising in GPE , Ingushetia . The respondent Government are represented by PERSON , Representative of ORG at ORG .","The applicant had CARDINAL children . CARDINAL of them , PERSON , was born in DATE . The applicant lived in PERSON with her family .","In DATE ORG launched a counter - terrorist operation in GPE .","On DATE the applicant \u2019s daughter received a wound to the head as a result of an explosion . The family and the wounded child remained in the basement of their house in view of the ongoing hostilities .","On DATE when federal servicemen reached the district , they gave PERSON first aid and delivered the applicant and her daughter to a military hospital by helicopter . From there the applicant and her daughter were taken to a hospital in NORP where the child spent DATE in an intensive care unit .","On DATE PERSON was brought to ORG in GPE and diagnosed with a post - traumatic condition caused by a penetrating wound to the skull . She was operated upon and DATE she was transferred by plane to a specialised paediatric hospital , ORG , in GPE .","On DATE PERSON died at the intensive care unit of ORG in GPE .","On DATE the applicant and her husband sought assistance in receiving compensation for their child \u2019s death from ORG of the President of GPE ( \u201c the Human Rights Office \u201d ) .","On DATE the applicant sued the Government of GPE , seeking compensation for her daughter \u2019s death .","On DATE the Staropromyslovskiy District Court of ORG awarded her MONEY in a lump sum , such award being given to people whose relatives had died during the counter - terrorist operation in GPE . The remaining claims for non - pecuniary damage were dismissed for the absence of a causal link between the actions of the defendant and the claim .","The applicant did not appeal and on DATE the judgment became final .","On DATE ORG requested that the prosecutor \u2019s office of LOC of Grozny ( \u201c the district prosecutor \u2019s office \u201d ) investigate PERSON death . The letter indicated that information about the criminal proceedings had been sought by LOC within the scope of the compensation proceedings . It is unclear if this letter reached the district prosecutor \u2019s office .","On DATE the applicant complained about her daughter \u2019s death to the district prosecutor \u2019s office .","On DATE , referring to a letter from ORG of DATE , the district prosecutor \u2019s office opened an investigation under LAW ( murder ) . The case was assigned number CARDINAL .","Pursuant to the ORG \u2019s request following the communication of the present case , the ORG submitted CARDINAL pages of documents from the criminal investigation file . These documents can be summarised as follows .","On DATE the district prosecutor \u2019s office granted victim status to the applicant . She was questioned and stated that her daughter had been wounded as a result of an explosion . CARDINAL neighbours stated that they had heard the explosions outside and then saw that the applicant and her daughter had been wounded . The investigator also collected medical records and attempted to obtain information about the military operations in PERSON at that time . It does not appear that they obtained any relevant information in this respect .","On DATE the investigation in case no . DATE was suspended for its failure to identify any suspects . The applicant was informed , but did not appeal against this decision .","On DATE the applicant wrote to ORG and asked for an update on the investigation .","LAW provides as follows :","\u201c LAW . Judicial examination of complaints","Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions ....","The court shall examine the lawfulness and the grounds for the impugned decisions or acts ... within DATE from the receipt of the complaint ...","As a result of the examination of the complaint the court shall deliver one of the following decisions :","CARDINAL ) Declaring the decisions , acts or omissions of the official as unlawful or unsubstantiated and obliging the official to eliminate the defects ;","CARDINAL ) Not allowing the applicant \u2019s complaint ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93294","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF KATA v. POLAND","importance":4,"conclusion":"No violation of Article 6 - Right to a fair trial","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in PERSON .","In DATE he had a car accident .","On DATE the ORG ( FAC ) granted the applicant a life disability pension payable by the insurer , ORG ( PERSON ) , in the amount of CARDINAL old NORP zlotys DATE .","The insurer did not pay the applicant \u2019s disability pension for DATE . Following a complaint by the applicant in DATE , the insurer paid him the amount of MONEY ( ORG ) , which at the relevant time was the equivalent of CARDINAL . The applicant unsuccessfully requested several times that his pension be index linked .","On DATE the applicant lodged a civil claim against the insurer . He sought the indexed pension for DATE . The value of his claim amounted to LAW .","On DATE the applicant requested the court to exempt him from the court fee .","On DATE he rectified the procedural shortcomings of his request . He submitted a declaration of means , pursuant to LAW ORG Cywilnego ) . The relevant part of that declaration read as follows :","\u201c I am married . My wife receives a disability pension of ORG DATE . I receive a disability pension of ORG DATE .","We have our CARDINAL biological grandchildren , to whom we are foster parents , to support . The grandchildren are CARDINAL , DATE and the oldest grandchild is still at school .","Our constant DATE expenses are :","- rent \u2013 PLN CARDINAL ,","- water MONEY ,","- electricity \u2013 PLN CARDINAL ,","- gas \u2013 PLN DATE ,","- television DATE ,","- telephone MONEY ,","-medicaments \u2013 PLN CARDINAL .","I do not have any shares or securities or any savings . I do not have a car or any other property of financial value .","In my opinion payment of the court fees will entail a substantial reduction in my and my family \u2019s standard of living . \u201d","On DATE the applicant completed his declaration of means submitting that he received a disability pension of ORG , CARDINAL , his wife received a disability pension of ORG MONEY and as foster family for their CARDINAL grandchildren they received a financial benefit of ORG .","On DATE the applicant was granted an exemption from court fees exceeding the amount of ORG CARDINAL,CARDINAL for his claim . The entire fee amounted to ORG CARDINAL . The applicant did not appeal against that decision and paid the required amount .","On DATE ORG ( PERSON ) gave judgment , dismissing the applicant \u2019s claim for compensation .","On DATE the applicant appealed against the first - instance judgment .","On DATE he requested an exemption from the court fees in the appellate proceedings . The fees amounted to ORG CARDINAL,CARDINAL .","On DATE ORG granted him an exemption from court fees exceeding PLN MONEY .","On DATE the applicant lodged an interlocutory appeal ( za\u017calenie ) against that decision .","On DATE ORG ( FAC ) dismissed his appeal . The relevant part of ORG reasoning read as follows :","\u201c The ORG found that , although the income received by the applicant and his wife was not high , they should , however , when lodging an appeal , have been aware that they would have to pay the court fee , and should have made the necessary savings in advance . The court \u2019s view could not be altered by the fact that the applicant and his wife were a foster family for their CARDINAL grandchildren . A party seeking his or her claim in a court should limit other expenses . \u201d","On DATE ORG discontinued the appellate proceedings .","The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL , ORG CARDINAL-VI ; see also the judgment delivered by ORG on DATE in the case of GPE and GPE v. GPE , no . GPE , \u00a7 \u00a7 CARDINAL - CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23407","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2002,"docname":"GAYDUK AND OTHERS v. UKRAINE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The facts of the case , as submitted by the parties , may be summarised as follows .","All the applicants are NORP nationals and residents who opened savings accounts with ORG , which until DATE was an integral part of ORG . With the exception of the cases expressly referred to below , all the accounts were opened in DATE . Under the terms of the agreements : \u201c ORG ] that deposits [ would ] be repaid in full on demand by the account holder \u201d . The rule was not stated to be subject to any restrictions .","In DATE the NORP authorities implemented a monetary reform intended to replace the former monetary unit , the karbovanets coupon , with a new currency , the NORP hryvna ( \u0443\u043a\u0440\u0430\u0457\u043d\u0441\u044c\u043aa \u0433\u0440\u0438\u0432\u043da , ORG ) , at an exchange rate of CARDINAL karbovanets coupons for CARDINAL hryvna . The conversion also had an impact on the applicants\u2019 deposits , which had already considerably depreciated as a result of inflation .","On DATE the NORP ORG enacted the NORP ORG Deposits ( ORG ( Law no . CARDINAL\/CARDINAL ) . Pursuant to section CARDINAL of that Act , the applicants\u2019 deposits were indexed at a ratio of CARDINAL karbovanets coupon to CARDINAL hryvnas . Section CARDINAL established a system for the indexed savings to be repaid progressively , taking into account the account holder \u2019s age , the amount on deposit and other criteria . DATE the ORG brings in regulations specifying the categories of account holders entitled to receive compensation in DATE . Under the regulations , only account holders aged DATE or over are entitled to recover a part of their savings ( UAH CARDINAL , equivalent to MONEY ( ORG ) per person ) . In addition , on an account holder \u2019s death , his or her heirs are entitled to LAW to pay for the burial .","In DATE each of the applicants issued proceedings against ORG in the relevant courts seeking payment of all or part of their indexed deposits in hryvnas . Their claims were dismissed both at first instance and on appeal on points of law . In most of the decisions , the courts held that the claimants concerned were not entitled to compensation under PERSON no . CARDINAL\/CARDINAL for the fall in value of their deposits , as they were under LAW and thus had no valid legal claim granted by the Government under the LAW . As regards the fifth , twelfth , thirteenth and fourteenth applicants , who had attained the qualifying age , the courts found that they were entitled to compensation limited to ORG CARDINAL , as the legislation in force did not provide for the repayment of the full value of their deposits .","Subsequently , some of the applicants made CARDINAL or more unsuccessful applications for supervisory review of the final decision to the President of ORG or the president of the relevant regional court .","...","The first paragraph of LAW ) reads as follows :","\u201c Everyone has the right to own , use and dispose of his or her property ... \u201d","The relevant parts of LAW ( ORG \u043a\u043e\u0434\u0435\u043a\u0441 ) read as follows :","\u201c Private persons may deposit sums of money in ORG savings banks and other financial institutions , have access to their deposits ...","The ORG guarantees the confidentiality and safekeeping of deposits and their repayment on demand by the account holder ... \u201d","The third paragraph of section CARDINAL of LAW ( ORG \u201c PERSON \u0431\u0430\u043d\u043a\u0438 i \u0431\u0430\u043d\u043ai\u0432\u0441\u044c\u043a\u0443 \u0434i\u044f\u043b\u044c\u043di\u0441\u0442\u044c \u201d \u2013 Law no . CARDINAL of DATE ) , which was in force until DATE , provided :","\u201c ... GPE shall guarantee the safekeeping of deposits ... lodged by private persons with ORG and their repayment to account holders on demand . \u201d","The relevant provisions of LAW ( ORG \u201c PERSON \u0434\u0435\u0440\u0436\u0430\u0432\u043di \u0433\u0430\u0440\u0430\u043d\u0442i\u00ef \u0432i\u0434\u043d\u043e\u0432\u043b\u0435\u043d\u043d\u044f \u0437\u0430\u043e\u0449\u0430\u0434\u0436\u0435\u043d\u044c \u0433\u0440\u043e\u043c\u0430\u0434\u044f\u043d ORG \u201d \u2013 Law no . CARDINAL of DATE ) provide :","Section CARDINAL","\u201c This Act sets out the ORG \u2019s obligations to NORP citizens who , following the devaluation , have lost money which they deposited before DATE in branches of ORG ... carrying on business on NORP territory ...","Similarly , NORP citizens who deposited money with a branch of ORG ... DATE which remained in the accounts of ORG for DATE shall be entitled to compensation ... \u201d","Section CARDINAL","\u201c The ORG undertakes to maintain and update the real value of individual ORG deposits and to pay them compensation in accordance with the relevant provisions . \u201d","Section CARDINAL","\u201c The deposits by the private individuals referred to in the first paragraph of section CARDINAL of this Act shall be revalued using the ratio of CARDINAL hryvnas for CARDINAL karbovanets coupon lodged , corresponding to the position at DATE . \u201d","Section CARDINAL","( as amended by PERSON no . CARDINAL of DATE )","\u201c The payment of compensation to NORP citizens for damage resulting from the depreciation of their deposits shall be made ... by the ORG ... from DATE onwards .","The funds set aside to finance this compensation scheme ... shall constitute a special item in the budget of the NORP State ... \u201d","Section CARDINAL","\u201c Deposits shall be reimbursed progressively taking into account the account holder \u2019s age , the amount of the deposit and other criteria and the amount of funds allocated for that purpose in the NORP ORG budget for DATE .","[ Paragraph amended by PERSON no . CARDINAL of DATE ] The list of the categories of account holders , the order of reimbursement of the indexed pecuniary deposits and the amount of the payments referred to in section CARDINAL of this Act shall be determined by ORG to the extent the funds allocated for that purpose in the budget of the NORP State allow . \u201d","Section CARDINAL","\u201c [ Paragraph amended by PERSON no . CARDINAL of DATE ] On an account holder \u2019s death , the heirs ... may withdraw parts of the indexed deposit ... for the purposes of arranging the funeral , the amount being calculated by reference to the amount of the funeral grant ... \u201d","The categories of persons eligible for repayment of their deposits are defined in regulations ( \u043f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u0430 ) approved DATE by the ORG for DATE ( see regulations nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of CARDINAL DATE , and CARDINAL of DATE ) . Under these regulations , the right to partial reimbursement of the deposits is reserved to account holders who attained DATE by DATE and heirs of deceased account holders , for the purposes of making burial arrangements . Account holders from the first category are entitled to reimbursement of ORG MONEY ( approximately EUR CARDINAL ) , whereas the heirs of deceased account holders are entitled to an amount equivalent to the funeral grant , that is to say UAH CARDINAL ( approximately EUR CARDINAL ) . Since DATE disabled ex - servicemen have also been able to claim reimbursement of part of their deposits . Regulation no . CARDINAL , which covers DATE , added to these categories account holders who had reached DATE respectively by DATE . Account holders in the latter category are entitled to the sum of UAH CARDINAL . All the aforementioned payments may only be made \u201c to the extent the sum allocated in the ORG budget for DATE concerned allows \u201d .","According to a practice direction ( no . DATE ) issued by ORG on DATE on the implementation of Law no . CARDINAL , complaints concerning the repayment of indexed deposits to private individuals under the statutory guarantee provisions in force are to be dealt with under the contentious - business procedure . The practice direction is binding on all NORP courts . When deciding such cases , the courts must remember that they are not dealing with liability for breach of contract between the account holder and ORG , but with the repayment of revalued deposits under the relevant provisions . ORG also directed that payments of compensation for indexed deposits must be made solely through branches of ORG . Consequently , in the event of litigation , the regional branch of ORG and ORG must be joined to the proceedings as defendants . The Savings Banking reimburses the indexed deposits to the extent the sums allocated for that purpose in the budget of ORG have been paid over to it in accordance with the ranking provisions established by the ORG . Thus , if a court finds that the sums concerned have not been paid to ORG or that the claimant is not a person entitled to reimbursement of the deposits for DATE concerned , that person \u2019s claim must be dismissed . If the claim exceeds the prescribed sum , the court shall grant it to the extent laid down in LAW .","On DATE the ORG passed a resolution concerning the reimbursement in DATE of the value of deposits made by NORP citizens before DATE in branches of the former ORG situated on NORP territory ( PERSON \u0432\u0438\u043f\u043b\u0430\u0442\u0443 \u0432 DATE \u0440\u043e\u0446i \u0433\u0440\u043e\u0448\u043e\u0432\u0438\u0445 \u0437\u0430\u043e\u0449\u0430\u0434\u0436\u0435\u043d\u044c \u0433\u0440\u043e\u043c\u0430\u0434\u044f\u043d ORG , DATE \u0434\u043e DATE \u0440. \u0432 \u0443\u0441\u0442\u0430\u043d\u043e\u0432\u0438 \u043a\u043e\u043b\u0438\u0448\u043d\u044c\u043e\u0433\u043e ORG , \u0449\u043e \u0434i\u044f\u043b\u0438 \u043d\u0430 \u0442\u0435\u0440\u0438\u0442\u043e\u0440i\u00ef ORG ) . By that resolution , the Government allocated UAH CARDINAL from the national budget to enable individual deposits to be indexed . Of that amount , UAH CARDINAL was allocated to the heirs of account holders who had died DATE , on condition that they had not yet received the grant available under LAW no . CARDINAL . The remaining UAH CARDINAL was to be divided between the other account holders . The amount payable to each beneficiary was , in principle , limited to ORG CARDINAL for people from the first category and UAH CARDINAL for people from the second ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72259","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF B\u0130\u00c7 AND OTHERS v. TURKEY","importance":3,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicants PERSON Bi\u00e7 , PERSON , PERSON and ORG , were born in DATE , CARDINAL , DATE and DATE respectively and live in the village of Yukar\u0131har\u0131m , attached to the province of ORG .","On DATE PERSON was arrested by security forces in Bismil on suspicion of having participated in an attack on a military convoy , organised by the ORG . In his statement to the gendarmes , he confessed to being a member of the ORG and having participated in the attack against the military convoy .","On DATE PERSON was brought before the public prosecutor . The same day he was brought before the investigating judge at ORG , who subsequently ordered his detention on remand . PERSON was accordingly sent to Batman prison .","On DATE the public prosecutor initiated criminal proceedings against PERSON in ORG . In his indictment , he accused him of membership of an illegal organisation , of aiding and abetting the members of this organisation and of having participated in an attack that had been aimed against the security forces . He asked the court to sentence him under LAW .","On DATE ORG concluded that there was insufficient evidence to prove that PERSON had taken part in any armed attack , but found him guilty of membership of an illegal organisation . He was accordingly sentenced to DATE and CARDINAL months\u2019 imprisonment pursuant to LAW . The court further ordered his transfer to FAC .","On DATE PERSON appealed .","On DATE ORG quashed the decision of ORG and sent the case file back for re - examination .","The proceedings recommenced before ORG . The first - instance court decided to keep PERSON in detention on remand during the course of the trials . While the proceedings continued , PERSON was twice operated upon a stomach complaint . At DATE , he was also diagnosed with hepatitis B and subsequently died in the hospital on DATE due to liver cirrhosis .","ORG decided to discontinue the criminal proceedings against PERSON after his death ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97837","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2010,"docname":"MIELKE v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","In DATE the applicant \u2019s predecessor ( \u201c the predecessor \u201d ) acquired a plot of land with a QUANTITY building situated in the centre of GPE ( \u201c the property \u201d ) , later in GPE , on the territory of GPE ( GDR ) .","From DATE onwards , the property was subjected to public administration by the GPE authorities but was not formally transferred into public property .","The predecessor died in DATE in GPE , in GPE ( FRG ) ; the land register was not rectified . In DATE his heir ( \u201c the heir \u201d ) relinquished her rights as regards restitution of the property to the applicant before a notary public .","On DATE ORG ( PERSON ) allowed the refurbishment of the building subject to expropriation of the property from its owner .","On DATE ORG of the GPE cabinet ( Ministerrat der DDR ) approved the refurbishment plans .","On DATE ORG responsible for ORG in ORG requested that the property be expropriated ; the compensation was set at MONEY .","On DATE ORG ( ORG Mitte ) expropriated the property from its owner with effect from DATE and transferred the property to ORG . The undated decision to expropriate the property was signed and sealed . The applicant contested that the expropriation had taken place on that date .","On DATE ORG sold the building built on the property to a public holding ( \u201c the holding \u201d ) for MONEY . On CARDINAL DATE the ownership of the property was transferred to the holding . The holding had been founded on DATE and had been registered in the register of public enterprises ( ORG der volkseigenen ORG ) on DATE . On DATE the holding requested to be registered as a limited company in the course of incorporation ; the company was dissolved with effect from DATE .","The ORG has summarised the political background to the dissolution of the GPE in the case of ORG , PERSON and PERSON v. GPE ( [ ORG ] , ORG . FAC , CARDINAL and CARDINAL , \u00a7 CARDINAL , ORG CARDINAL ) as follows :","\u201c In DATE the flight of CARDINAL of citizens of the GPE to the ORG \u2019s embassies in GPE and GPE , and to GPE , which had opened its border with GPE on DATE , demonstrations by CARDINAL of people in the streets of GPE , GPE , GPE and other cities , and the restructuring and openness campaign conducted in GPE by PERSON ( perestroika and glasnost ) precipitated DATE of FAC on DATE , the collapse of the system in the GPE and the process that was to lead to the reunification of GPE on DATE . \u201d","On DATE the Secretary - General of ORG , PERSON , stepped down and was replaced by PERSON . Especially after DATE of FAC on DATE the GPE was in an ever - increasing state of dissolution .","On DATE the Under - Secretary of ORG in the GPE \u2019s ORG and Prices wrote to ORG to ORG and admonished them to comply with the rules of regulations governing expropriations from owners living outside the GPE , namely , that the latter should be kept correctly informed of and allowed to participate in proceedings concerning their property . On DATE , the date of the NORP reunification , the ORG entered into force on the territory of the new L\u00e4nder .","On DATE the heir applied for rights under the Act on the Regulation of Outstanding Property Issues\/ Property Act ( Gesetz zur Regelung offener Verm\u00f6gensfragen\/ Verm\u00f6gensgesetz \u2013 hereinafter the \u201c LAW \u201d , see \u201c Relevant domestic law and practice \u201d below ) . On DATE ORG ordered that the public administration of the property be lifted .","On DATE the property rights were administratively allocated to the holding pursuant to the Act on the Allocation of Former Public Property ( see \u201c Relevant domestic law and practice \u201d below ) ; this decision became final on DATE after ORG had dismissed the heir \u2019s claim .","On DATE the heir was listed as owner in the land register on the basis of the heir \u2019s certificate . The registration had no effect on the ongoing proceedings .","On DATE the order that the public administration be lifted was revoked following an administrative appeal by the holding in dissolution ; on CARDINAL DATE ORG upheld the decision .","On DATE the property was administratively allocated to the ORG property holding ( ORG ) as successor to the holding .","On DATE the holding in dissolution was registered as its owner in the land register .","On DATE the GPE ORG granted the holding \u2019s request for an interim objection to the predecessor \u2019s listing as owner of the property in the land register .","On DATE ORG , CARDINALth ORG , quashed the decision of ORG and refused the request on the ground that the holding had not established that it had become the owner of the property . ORG noted that the expropriation by the GPE authorities had clearly been carried out in complete administrative disarray , likely caused by the then imminent NORP reunification . The decision to expropriate the property from the predecessor had been undated , the form had not been properly filled out and the note that the decision had become final had not been in conformity with standard practice . The expropriation procedure had furthermore violated theprovisions for the basic legal protection of property owners under GPE law , for the GPE authorities had not contacted the heir , as the owner , and had not ascertained whether the predecessor had died , although this would have been possible after the fall of FAC . ORG concluded that the GPE authorities had deliberately excluded the heir from the proceedings in order to finalise the expropriation before the NORP reunification on DATE .","On DATE the holding handed the property over to the heir without prejudice to the ownership of the property .","The heir then requested in the main proceedings that she be declared theowner of the property . The holding brought a counter - claim for it to be declared the owner . ORG dismissed the heir \u2019s request and granted the counter - claim on the grounds that the holding had become the owner by virtue of the decision that had administratively assigned the property to it and which had become final on DATE ( see above ) .","On DATE ORG , CARDINALst civil senate , dismissed the heir \u2019s appeal and ordered her to return the property in exchange for the return of a bond of MONEY she had deposited with the respondent . ORG held that the expropriation by the GPE authorities had been lawful . In particular , the public administrator had been informed of the expropriation .","On DATE ORG dismissed the heir \u2019s appeal on points of law .","On DATE ORG ordered that the property be returned to the applicant against the payment of compensation on the grounds that the applicant \u2019s predecessor had suffered a property loss within the meaning of section CARDINAL(CARDINAL ) ( b ) of LAW ( see \u201c Relevant domestic law and practice \u201d below ) .","On DATE ORG dismissed ORG administrative appeal .","On DATE ORG set aside the restitution order on the grounds that the heir had not been entitled to restitution of the property . The property had not been expropriated without compensation ( section CARDINAL(CARDINAL ) ( a ) of LAW ( see \u201c Relevant domestic law and practice \u201d below ) ) because in principle the owner could have been compensated under the laws and the state practice of the GPE . Furthermore , the property had not been expropriated for less compensation than citizens of the GPE would have been entitled to ( section CARDINAL(CARDINAL ) ( b ) of LAW ( see \u201c Relevant domestic law and practice \u201d below ) ) . According to the caselaw of ORG this provision was only applicable to expropriations for which the former owner had deliberately been granted less than a citizen of the GPE would have had ; following the entering into force of the decree on prices no . CARDINAL in DATE , which had been applicable in the present case , owners living in GPE were no longer systematically discriminated against in calculating the compensation due . Lastly , the property had not been taken by unfair means ( section ( CARDINAL)(CARDINAL ) of LAW ( see \u201c Relevant domestic law and practice \u201d below ) ) ; in particular , expressly relying on the case - law of ORG , ORG held that the property had not been taken for a purpose other than the one stated , that its transfer into public property before transferring it to the holding had not been unfair , that the fact that the owner that was listed in the land register had already died had no bearing on the fairness of the expropriation proceedings , and that the property had been expropriated before DATE . As regards the ORG observed that the GPE authorities had been of the opinion that the owner of the property did not have to be informed about the expropriation according to the GPE law as practised by its authorities , since the property had been subjected to public administration .","On DATE ORG refused leave to appeal on points of law and noted , inter alia , that it was not decisive that ORG had previously held that the deliberate exclusion of the owner living in the ORG from the expropriation proceedings by the GPE authorities after CARDINAL DATE had resulted in the expropriation being void . ORG noted that any difference in opinion between the CARDINAL federal courts had no bearing on the applicant \u2019s case because ORG had conclusively established that the GPE authorities had been of the opinion that they had not needed to inform the owner of the expropriation proceedings ; the GPE authorities had accordingly not deliberately excluded the owner from them .","On DATE ORG refused to admit the applicant \u2019s constitutional complaint for adjudication ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","Pursuant to LAW between GPE and GPE concerning the German Reunification - Reunification Treaty ( PERSON GPE \u00fcber die GPE der PERSON \u2013 Einigungsvertrag ) , administrative acts by the authorities of the GPE prior to reunification remain in force . Such acts may be repealed if they are incompatible with the principles of the rule of law or LAW .","A former owner may request restitution of property ( section CARDINAL of the Property Act ) that was expropriated in the GPE if the property was expropriated without compensation ( section CARDINAL(CARDINAL ) ( a ) of LAW ) , with less compensation than a GPE citizen would have been entitled to ( section CARDINAL(CARDINAL ) ( b ) of LAW ) , if the state administrator sold the property or if the nationalised property was sold to third persons ( section CARDINAL(CARDINAL ) ( c ) of LAW ) , or if the property was taken by unfair means , such as the misuse of power , corruption , coercion or deceit ( section ( CARDINAL)(CARDINAL ) of LAW ) .","According to this provision , the validity of expropriations that lead to the transfer of property into public property shall be determined in view of the law in force at the time of the expropriation . Expropriations are invalid if the property could not have been transferred into public property or if the transfer was plainly irreconcilable with the rule of law ( mit rechtsstaatlichen PERSON schlechthin unvereinbar ) because of serious violations of the rule of law or of the principle of proportionality or because the expropriation had been arbitrary .","The relevant authority may decide to allocate former public property following a procedure in which all interested parties have had the right to participate . Property rights of third persons such as ownership and specifically named rights of interested parties are not affected by this decision ( section CARDINAL(CARDINAL ) of the LAW on the Allocation of Former Public Property \u2013 Gesetz \u00fcber die Feststellung der Zuordnung von ehemals volkseigenem Verm\u00f6gen ) .","In a judgment of DATE ( no . CARDINAL C CARDINAL\/CARDINAL , published in BVerwGE , vol . CARDINAL , p. CARDINAL et seq . ) , ORG held that expropriations by the GPE authorities in flagrant violation of the pertinent provisions of the GPE law amounted to a taking by unfair means ( section ( CARDINAL)(CARDINAL ) of LAW ) if the expropriation took place after DATE , the date of the letter of the Under - Secretary of ORG in the GPE \u2019s ORG and Prices to ORG to ORG .","In a judgment of DATE ( no . CARDINAL C CARDINAL\/CARDINAL ) , ORG held that the assessment whether the GPE authorities expropriated using unfair means within the meaning of section CARDINAL(CARDINAL ) of the LAW was to be conducted on a case by case basis if the expropriation took place DATE PERSON PERSON stepped down DATE and DATE , the date of the aforementioned letter of the Under - Secretary of ORG in the GPE \u2019s ORG and Prices . Only after DATE the GPE administrative practice could be assumed to comply with the relevant procedural requirements of GPE law , and thus flagrant procedural shortcomings could result in a taking using unfair means .","In a judgment of CARDINAL DATE ( no . V ZR CARDINAL ) ORG held that as a general rule , expropriations by the GPE authorities after DATE had used unfair means within the meaning of section CARDINAL(CARDINAL ) of LAW if the owner living in the ORG had been deliberately excluded from the expropriation proceedings ; in such a case the owner had not lost the property and was entitled to be registered as owner in the land register .","In a judgment of DATE ( no . V ZR CARDINAL\/CARDINAL ) ORG held that an owner could pursue a claim to be reinstated as owner in the land register if the GPE authorities\u2019 expropriation order had not become effective , regardless of whether the taking had been accomplished by using unfair means within the meaning of section CARDINAL(CARDINAL ) of LAW . The ORG noted that it did not depart from the jurisprudence of ORG in a decisive manner and therefore did not need to refer the question as to the date on which expropriations by the GPE authorities became plainly irreconcilable with the rule of law .","Pursuant to LAW ORG der obersten PERSON ) of ORG , ORG , ORG , the ORG and the ORG shall be established to preserve the uniformity of decisions . The Common ORG decides the legal question that is disputed between senates of different federal courts if they can not agree on a common interpretation following a procedure laid down in the LAW on the Preservation of the Unity of the Federal Courts\u2019 Jurisprudence ( Gesetz zur Wahrung der LOC oberten ORG ) . Proceedings before ORG with regard to an individual appeal on points of law pending before a federal court are interlocutory ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96964","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF KOTOV v. RUSSIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant deposited CARDINAL new roubles ( \u201c roubles \u201d ) in a savings account with the commercial bank PERSON ( \u201c the bank \u201d ) offering an interest rate of PERCENT per annum . DATE he withdraw MONEY , representing interest that had accrued on that account . After the bank announced that it was changing the interest rate , the applicant requested the closure of his account in DATE , but the bank informed him that it was unable to repay him his capital plus interest as its funds were insufficient .","The applicant brought proceedings against the bank , seeking repayment of the capital he had deposited , together with interest , a penalty payment at PERCENT per day and compensation for pecuniary damage ( in connection with the construction of a house ) and for non - pecuniary damage ( on account of health problems ) .","On DATE ORG of the town of GPE partly upheld his claims . It established that on the closure of his account the bank owed the applicant MONEY , representing the capital deposited and the interest due for DATE . After calculating the index - linked sum , it ordered the bank to pay the applicant MONEY . It further ordered a penalty payment of MONEY and awarded MONEY for non - pecuniary damage , making a total of MONEY .","NORP That decision was upheld at last instance on DATE .","NORP In a decision of the Oktyabrskiy court of DATE , the above - mentioned judgment debt was raised to MONEY in view of the failure to pay MONEY and the rate of inflation .","In the meantime , on DATE , at the request of ORG and ORG , ORG for the FAC region declared the bank insolvent .","On DATE the insolvency procedure was opened by that court and a liquidator was appointed to oversee the liquidation .","On DATE ORG approved the provisional statement of affairs based on the bank \u2019s financial situation at DATE .","On the basis of that statement the committee of creditors of the bank decided on DATE and DATE to distribute the assets in the first place to certain categories of creditors . Accordingly , disabled persons , Second World War veterans , individuals in need and persons having taken an active part in the liquidation process , that is to say CARDINAL persons in total ( PERCENT of creditors ) , were reimbursed by the liquidator at PERCENT of the index - linked amount of their capital together with interest . It was decided to reimburse the other creditors in the same manner , as and when further assets became available .","The applicant sent the liquidator a request for the repayment of the MONEY owed to him . In response to that request , the sum of MONEY was paid to him on DATE .","On DATE the applicant challenged , before ORG , the fact that other creditors had received repayment at PERCENT , whereas he , as a preferential creditor , had received MONEY . Relying on sections DATE of LAW DATE ( \u201c the DATE LAW ) , he sought the repayment of the remainder of the sum owed to him in accordance with the principle of proportional distribution . LAW provided that , where a company \u2019s assets were insufficient to satisfy all creditors , creditors of the same class would be paid in proportion to their respective claims . In the present case , at the date of the applicant \u2019s request , MONEY had been collected in the liquidation process and these funds had been used for PERCENT repayment to creditors in the various categories mentioned above ( see paragraph CARDINAL above ) .","On DATE the applicant \u2019s action was dismissed at first instance on the ground that the amount owed to him ( MONEY ) represented PERCENT of the assets totalling MONEY which , having been collected in the liquidation process , had been used to repay certain categories of creditor . According to the principle of proportional distribution he was therefore entitled to receive PERCENT of MONEY , i.e. MONEY . That sum had already been paid to him on DATE , whilst the remainder would be paid as and when more funds became available in the course of the ongoing liquidation process .","Hearing the case on appeal , ORG held on DATE that , contrary to the requirements of section CARDINAL of the DATE Act , the liquidator \u2019s list of creditors had not identified those that had priority or the corresponding sums to be paid to them separately . On the basis of the documents produced by the liquidator it was not possible to establish the applicant \u2019s level of priority in relation to the other creditors , and the liquidator himself had stated orally that the applicant belonged to the fifth level of priority . ORG took the view that , in deciding to repay certain categories of creditors at PERCENT , the PERSON committee had overstepped the limits of its remit under section CARDINAL of the DATE Act . By enforcing that decision and distributing the assets accordingly , the liquidator had , in turn , disregarded the requirements of sections CARDINAL and QUANTITY . Pointing out that section CARDINAL of the LAW was not open to a broad interpretation of its provisions , ORG ordered the liquidator to redress the violations thus observed within DATE and to inform it of the measures taken in that connection .","NORP The liquidator appealed on points of law to ORG for the LOC , arguing that he had distributed the assets pursuant to a decision of the PERSON committee , that the distribution had complied with LAW and that it had not therefore been in breach of the requirements of LAW ( see paragraphs CARDINAL and DATE below ) . On DATE his appeal on points of law was dismissed . Upholding the decision of CARDINAL DATE , the court stated that the liquidator should not have enforced a decision by the PERSON committee that was in breach of the law .","The enforcement of the decision of CARDINAL DATE and , in particular , the redressing of the applicant \u2019s financial situation , were not possible on account of the lack of assets .","In view of the failure to enforce the decision of CARDINAL DATE , the applicant filed a complaint with ORG on DATE , subsequently supplementing it with a complaint of DATE . He requested that the liquidator in person repay him the index - linked amount of the remainder of his award of MONEY , with interest and compensation for the non - pecuniary damage caused by his unlawful action .","NORP The complaints in question were examined in the context of the insolvency procedure opened against the bank .","On DATE ORG rejected the applicant \u2019s request on the ground that , on DATE and DATE , ORG had awarded the applicant the sum of MONEY to cover his claim and damages , and that it was not possible to rule on the same request a second time . ORG established that the applicant appeared in the list of creditors under the number CARDINAL and that , in respect of the actual capital deposited , the bank owed him a residual amount of MONEY . The court pointed out that this sum could be paid to him under the conditions laid down in DATE LAW .","On DATE judges of ORG , hearing the case on appeal , upheld the decision of CARDINAL DATE and pointed out that , in accordance with LAW of DATE that was in force at the time the applicant \u2019s complaints were examined , only those debts that had accrued in the course of the bank \u2019s operations could give rise to repayment . Accordingly , the requests for the payment of various sums to which the applicant was allegedly entitled after the bank \u2019s insolvency and during its liquidation could not be granted . The appellate court found that , by virtue of the judicial decisions , the applicant had secured a judgment debt of MONEY , which corresponded to the damage caused to him by the bank before it became insolvent . It added that the applicant would be able to recover this sum once sufficient assets had been realised in the liquidation process . The applicant \u2019s complaint was confined , in the appellate court \u2019s view , to the seeking of the above - mentioned sum together with penalties for non - payment .","On DATE ORG for the LOC dismissed the applicant \u2019s appeal on points of law on the following grounds :","\u201c The decision of the PERSON committee and the liquidator \u2019s action concerning the PERCENT repayment of debts to CARDINAL creditors ( out of the bank \u2019s CARDINAL creditors , whose claims amounted to MONEY ) admittedly breached the principle of proportional payment to creditors at the same level of priority , but did not cause Mr Kotov the damage he alleged , because the PERCENT satisfaction of all first - level creditors was not possible on account of the lack of assets available for distribution . The sum repaid to PERSON was thus calculated in proportion to the amount of his claim and to the assets realised in the course of the liquidation ... \u201d","The court further pointed out that the liquidation process was still pending and that the applicant \u2019s claim could thus be satisfied .","On DATE ORG confirmed the statement of affairs , as presented by the liquidator and approved by the general meeting of creditors , and closed the insolvency procedure on grounds of insufficient assets .","After the Government had been given notice of the application , the President of ORG of GPE lodged , on DATE , an application for supervisory review ( protest ) against the decisions of CARDINAL February , DATE and DATE ( see paragraphs DATE above ) , on the ground that they had been given in breach of LAW , which determined the jurisdiction of the commercial courts . Among other things , he stated that the examination of the applicant \u2019s complaints of DATE and DATE , in the context of the insolvency procedure opened against the bank , had been contrary to the DATE LAW such proceedings . Since those complaints had concerned a dispute between the applicant and the liquidator , they were not related to the insolvency procedure as such and the applicant should have submitted them to the courts of general jurisdiction .","On those grounds the President sought the annulment of the decisions at issue and the discontinuance of the proceedings concerning the above - mentioned complaints . On DATE the Presidium of ORG of GPE fully granted those requests , espousing the arguments raised in the application .","On DATE the applicant submitted a request for revision of the DATE decision to the same ORG . On DATE his request was dismissed as ill - founded by the Vice - President of ORG .","Under LAW , after the expiry of the period within which creditors have to file their claims , the liquidation committee draws up a provisional statement of affairs containing information on the bankrupt \u2019s estate , the claims filed by the creditors and the results of the examination of those claims . The statement has to be approved by the body that has taken the decision to wind up the company . If the company \u2019s monetary assets are insufficient to satisfy the LOC claims , the liquidation committee will sell off the estate by auction . The distribution of assets to the creditors may begin in accordance with the interim statement once it has been approved , except in respect of fifth - level creditors who will not be able to receive any money owed to them for DATE following that approval . Once all the payments have been made , the final statement of affairs is drawn up and approved in the same manner . Should the assets prove insufficient , the unsatisfied creditors may request the courts to order the owner of the company to honour their claims out of his own personal funds .","LAW , as in force prior to DATE , made a distinction CARDINAL classes of creditors , providing that payment could be made to a given class only when the creditors at the previous level had been satisfied . According to this classification the applicant belonged to the fifth class of \u201c other creditors \u201d . Article CARDINAL made no mention of a class of creditors who were pensioners , Second World War veterans or persons in need .","Under a new provision that was inserted into this LAW DATE , when a bank or other lending institution is wound up , private persons having made deposits with it are to be repaid as a first priority .","Article CARDINAL further provides that where a legal entity in liquidation has insufficient assets , they must be distributed among creditors at the same level in proportion to their respective claims .","Under section QUANTITY of the CARDINAL LAW , insolvency cases fall within the jurisdiction of the commercial courts , which examine them in accordance with the rules laid down in the LAW or , where no such rule exists , in accordance with LAW .","Under LAW of the LAW , insolvency procedures are opened in order to satisfy the LOC claims on a pari passu basis , to declare the bankrupt released from his obligations and to protect the parties from unlawful actions against each other .","Section CARDINAL \u00a7 CARDINAL provides that , after a company has been declared insolvent and an insolvency procedure has been opened against it , any claims against the company \u2019s assets may be submitted only in the context of those proceedings .","Under section DATE , the commercial courts appoint the liquidator and , in the cases provided for by the LAW , examine the lawfulness of acts of the parties involved in the insolvency procedure . LAW lists those parties as the liquidator , the PERSON committee , the creditor , etc .","Under section CARDINAL \u00a7 CARDINAL the liquidator takes control of the bankrupt \u2019s property , analyses the financial situation , examines the merits of the LOC claims , accepting or rejecting them , oversees the liquidation process to realise the assets , takes over the administration of the insolvent entity , sets up and heads the liquidation committee , and convenes the general meeting of creditors .","In accordance with section CARDINAL \u00a7 CARDINAL , taken together with section CARDINAL \u00a7 CARDINAL , candidates to the office of liquidator must be economists or lawyers or have experience of company management . They must not have a criminal record . No persons holding a position of responsibility in a company that is a debtor or creditor may be appointed . Candidates to the office of liquidator must declare their income and assets .","Under section CARDINAL \u00a7 CARDINAL the liquidator may challenge any decisions of the general meeting of the LOC committee when those decisions fall outside the remit of that meeting .","Under section CARDINAL \u00a7 CARDINAL , after the expiry of a DATE period within which the creditors must submit their claims against the bankrupt , the liquidator will draw up a list of the accepted and rejected claims indicating the amounts for those that have been accepted and the level of priority for each one . The list must be sent to the creditors within DATE .","Section CARDINAL establishes the various levels of priority for the distribution of the proceeds of the liquidation . Payment of the sums due to creditors at a given level is made once those at the previous level have been satisfied ( paragraph CARDINAL ) . If not enough assets are realised to pay in full the creditors at a given level , the money that is available will be paid to them pari passu in proportion to the amounts of their respective claims ( paragraph CARDINAL ) . LAW makes no mention of a class of creditors who are disabled , Second World War veterans or persons in need . Paragraph CARDINAL provides that any expenses of the liquidation , the liquidator \u2019s fees and the expenses of the debtor company \u2019s ongoing operations must take priority over the claims of first - level creditors .","Section CARDINAL provides that a creditor may challenge before the commercial courts any decision of the liquidator which , in his view , breaches his rights and legitimate interests .","Under section CARDINAL \u00a7 CARDINAL , any claims that can not be satisfied because the proceeds of the liquidation are insufficient will be regarded as extinguished .","Section CARDINAL provides that the bankrupt will be regarded as wound up from the time of its exclusion from the corresponding national register , pursuant to the decision of the commercial court closing the insolvency procedure .","Section CARDINAL \u00a7 CARDINAL of the DATE Act provides that creditors are entitled to seek compensation from the liquidator in respect of any damage that the latter may have caused to them by an action or omission in breach of the law .","In accordance with section QUANTITY , sub - paragraph CARDINAL , of this LAW , claims against the bankrupt may be submitted only in the context of the insolvency procedure ( see also section CARDINAL LAW ) .","Section CARDINAL provides for the same principles of distribution and pari passu repayment as section CARDINAL of the CARDINAL Act .","Under LAW , where a commercial court orders the defendant to carry out a specific act other than a transfer of property or payment of a pecuniary award , the court will indicate by whom , where and within what time - limit the act must be carried out .","Article CARDINAL provides that insolvency cases are to be examined by commercial courts in accordance with the PERSON and with the specific provisions of the insolvency legislation .","Paragraph CARDINAL , concerning the constitutionality of section CARDINAL LAW ( section CARDINAL \u00a7 CARDINAL in conjunction with sections CARDINAL \u00a7 CARDINAL and QUANTITY Act ) reads as follows :","\u201c ... when examining the claims of creditors who are private persons ... , the commercial courts do not have jurisdiction to issue binding directions of a pecuniary nature to the liquidator , acknowledging the existence of a claim or right in favour of creditors .... This limitation ... must not be interpreted as preventing the courts of general jurisdiction from examining on the merits the pecuniary claims ... of those creditors ... , in accordance with the legislation on insolvency .","Nor do the provisions at issue contain any clauses that would prevent the commercial courts from giving decisions that enable the persons concerned to secure in full their right to judicial protection in the context of insolvency procedures , especially as other provisions of LAW on insolvency ( bankruptcy ) precisely provide for the settlement of disputes through the courts ( sections CARDINAL , DATE , DATE , CARDINAL , CARDINAL et al . ) .","The refusal by a commercial court to examine a complaint on the grounds that it does not have jurisdiction ... does not prevent the creditor from applying to the courts of general jurisdiction in order to secure the protection of his rights ... The right to judicial protection , as enshrined in the LAW , must be upheld even in the absence of legislative norms establishing a division of jurisdiction between the commercial courts and the courts of general jurisdiction .","It follows from this interpretation that [ the provisions at issue ] do not prevent the courts of general jurisdiction from examining claims filed by non - corporate creditors against the liquidator and seeking ... compensation for damage , nor do they prevent the commercial courts from securing the enforcement , in accordance with the above - mentioned LAW , of the decisions taken by the courts of general jurisdiction . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75858","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2006,"docname":"CASE OF LYKOUREZOS v. GREECE","importance":1,"conclusion":"Violation of P1-3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings","judges":"Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Fran\u00e7oise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens","text":["The applicant has been a member of ORG since DATE . He stood in the parliamentary elections of DATE in the first constituency of GPE as a candidate on ORG party \u2019s list . He obtained CARDINAL votes and was elected as a member of parliament for a DATE term by decision no . CARDINAL\/CARDINAL of ORG .","On DATE PERSON , a voter in that constituency , lodged a complaint against the applicant with ORG , the judicial body which , under LAW and CARDINAL of the LAW , had jurisdiction , inter alia , to remove a member of parliament from office in the event of disqualification . PERSON referred , in particular , to the incompatibility between the office of a member of parliament and the fact that the applicant was practising as a lawyer . This incompatibility had been enshrined in LAW for the first time on the occasion of a constitutional revision in DATE . The new LAW now states that the duties of a member of parliament are incompatible with all professional activity , although it does provide for the introduction of exceptions through legislation . However , the implementing legislation was never enacted , since , according to information submitted by the applicant , ORG voted against the draft law in DATE . Article CARDINAL \u00a7 CARDINAL of the revised LAW indicated that the rule on disqualification in question would come into force once the implementing legislation provided for in LAW had been enacted and , at the latest , on DATE ( see paragraph CARDINAL below ) .","The hearing before ORG was held on DATE . Before that court , the applicant alleged , inter alia , that there had been a violation of LAW No . CARDINAL and argued that , until such time as the implementing legislation provided for in LAW had been enacted , the disqualification could not be applied . He also claimed that the disqualification could not be applied to members of parliament who had been elected prior to the revision of LAW . Submitting several documents in evidence , he added that he had ceased receiving fees as of DATE and that he was carrying out his activities free of charge , with the result that he could not be deemed to be practising a profession within the meaning of LAW .","On DATE , by judgment no . CARDINAL , ORG allowed PERSON complaint and ruled that the applicant had forfeited his seat . In particular , the court dismissed the applicant \u2019s argument that he could not be deemed to be practising his profession because he had not received fees for his services since the rule on disqualification had come into force . However , CARDINAL members of the court considered that \u201c the concept of practising a profession is very closely linked to receipt of an income , particularly through a systematic and long - term activity carried out for the purpose of ensuring [ the individual \u2019s ] livelihood \u201d . With regard to the other arguments raised by the applicant , ORG found as follows :","\u201c ... [ ORG is clear from ORG CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL , paragraph CARDINAL , of the LAW , the constituent body , in adopting the rule whereby the duties of a member of parliament are incompatible with the exercise of any profession , did so not only with a view to ensuring the independence of members of parliament , but also to ensure that the latter are able to carry out their duties in the best possible conditions and without distraction ... At the same time , LAW delegated to ORG the power to introduce exceptions to the [ general ] rule of professional disqualification , in other words , the power to list those professional activities which would be compatible with the duties of a member of parliament ... In addition , [ the same provisions state that ] the rule establishing the incompatibility between the duties of a member of parliament and the practising of any profession was to come into force , at the latest , on DATE ... , even if the law indicating the professional activities that are compatible with the duties of a member of parliament had not been enacted by that date ... The only consequence of the failure to enact this legislation ... is that the rule on disqualification for members of parliament is applicable , without exception , from DATE ... Further , the argument put forward by the applicant in his submissions to the effect that the disqualification is not applicable to members of the current ORG , since this would be contrary to the constitutional principle of legitimate expectation , must be dismissed as unfounded , especially since a constitutional provision can not be set aside on the ground that it is contrary to another provision or principle of LAW . This follows from the formal equality of all provisions of the LAW and the principles arising from them , which requires that each constitutional provision be applied in a binding manner with regard to the specific area which it governs ... \u201d","In DATE the applicant was replaced as a member of ORG by the first substitute on his party \u2019s list for the first constituency of GPE .","At the time of the parliamentary elections of DATE in which the applicant was a candidate , LAW was worded as follows :","\u201c The duties of a member of parliament are incompatible with the functions or position of a member of a board of directors , chairperson or director general or their deputies , or of an employee of a commercial firm or enterprise enjoying special privileges or public service concessions or receiving a regular ORG subsidy . \u201d","The new LAW provides :","\u201c CARDINAL . ... [ paragraph CARDINAL ] The duties of a member of parliament are also incompatible with the exercise of any profession . Activities compatible with parliamentary office , as well as matters relating to insurance and pension issues and to the manner in which members of parliament return to their profession at the end of their parliamentary term , shall be specified by law . ...","[ paragraph CARDINAL ] Violation of the provisions of the present paragraph shall result in forfeiture of parliamentary office and shall render related contracts or other acts null and void , as specified by law .","... \u201d","The transitional provision of LAW provides :","\u201c The incompatibility of parliamentary office with the exercise of any profession , provided for by the penultimate paragraph of LAW , shall come into force upon promulgation of the law provided for in the same provision and on DATE at the latest . \u201d","In DATE the present government announced its intention to carry out a further revision of the LAW . On DATE Mr ORG , the current Prime Minister , presented the broad outlines of the proposed revision to his party \u2019s parliamentary group . He stated , inter alia : \u201c recent experience shows that it is necessary to amend the constitutional provision on the professional disqualification of members of parliament ; we propose lifting the absolute prohibition and replacing it with a partial prohibition . \u201d","During the sittings of CARDINAL and DATE of the parliamentary committee responsible for preparing the revision of the LAW , members of the opposition expressed their views as follows ( extracts ) :","PERSON :","\u201c I suggest adding a provision to LAW which would read as follows : the duties of a member of parliament are incompatible with the exercise of any professional activity . \u201d","Mr PERSON :","\u201c Constitutional provision : a member of parliament may not exercise any other profession . \u201d","Mr Varvitsiotis :","\u201c I believe that a member of parliament should not exercise any other professional activity during his or her term of office . \u201d","In its final report of CARDINAL DATE , the above - mentioned parliamentary committee proposed that LAW be amended , and expressed its opinion as follows :","\u201c It is proposed , by a large majority , to revise LAW in order to redefine the work , powers and activities which are incompatible with the duties of a member of parliament in order to take account of current information about the ORG \u2019s role in the economy . Forfeiture of CARDINAL \u2019s parliamentary seat is also foreseen as a sanction for exceeding the limit set on election expenditure . \u201d","In its report of DATE , the parliamentary committee responsible for preparing the revision of the LAW after the elections of DATE made no mention of the introduction of an absolute professional disqualification .","At the sitting of DATE , PERSON , a member of the majority parliamentary party and a former Minister of ORG , spoke as follows ( extract ) :","\u201c What type of ORG do you want ? Do you want to exclude scientists and well - known figures ? ... This prohibition exists in no other country ... You will find yourselves in the dock at ORG , since a legislative prohibition on being elected to ORG on the ground of one \u2019s profession amounts to a breach of every citizen \u2019s personality rights ... \u201d","At the sitting of DATE , Mr PERSON , a member of parliament , then spokesperson for the opposition and currently Minister of the Interior , stated ( extract ) :","\u201c ... The initial philosophy underlying the revision of this Article was that members of parliament could exercise professional activities with the exception of those prohibited by LAW ; this is the logic of the decision [ that we adopted within the revision committee ] . Yet now , before a plenary sitting of the ORG , you are putting forward a position that is the exact opposite of that ... All of a sudden , in the middle of the procedure , you are introducing an amendment which , in reality , completely overturns the content of the revision of LAW ... This is not a simple amendment , but a total reversal of the logic underlying the revision of LAW . \u201d","NORP Several legislative systems make it incompatible to hold a seat in ORG and simultaneously to hold senior office in the executive branch ( Head of ORG , Prime Minister , Minister or Minister of ORG ) or high office within the judiciary ( president or member of a constitutional or supreme court , of an administrative court , of the ORG d\u2019Etat or of another specialised senior court , such as ORG ) . This is the case , for example , in GPE ( Articles CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL of LAW ) , GPE ( LAW ) , GPE ( LAW and section CARDINAL of the DATE implementing PERSON on the general electoral system ) , GPE ( section CARDINAL of LAW ) , GPE ( LAW ) , GPE ( LAW of LAW ) , GPE ( LAW ) , \u201c the former GPE \u201d ( section CARDINAL of the Status of Members of Parliament Act DATE ) , the GPE ( LAW ) and GPE ( section CARDINAL of ORG and section CARDINAL(CARDINAL ) of the Status of Members of Parliament Act ) . In some countries , however , government ministers take part in parliamentary work ( GPE , GPE , GPE ) .","Certain disqualifications from holding a parliamentary seat concern positions which could jeopardise ORG independence as a result of hierarchical relations within the government .","In the majority of countries , disqualifications of this type concern judges and prosecutors , police officers and members of the armed forces , and all diplomatic and consular staff . This is the case , for instance , in GPE ( section CARDINAL(CARDINAL ) of LAW ) , GPE ( LAW ) , GPE ( LAW of LAW ) , GPE ( section CARDINAL of the DATE LAW ) , GPE ( sections CARDINAL , DATE and CARDINAL of LAW ) , GPE ( LAW ) , GPE ( section CARDINAL(CARDINAL ) of ORG House of Commons Disqualifications Act ) and GPE ( LAW ) .","NORP In general , such disqualifications concern civil servants or contract workers employed in the ORG administration or in regional bodies , autonomous ORG entities or institutions such as the social security service , or in public companies . This is the case , for example , in GPE ( section CARDINAL of the Members of GPE ) , GPE ( section CARDINAL of the DATE Electoral LAW ) , GPE ( Disqualifications Act of DATE ) , GPE ( Article CARDINAL of the LAW ) , GPE ( section CARDINAL of the DATE implementing PERSON ) , GPE ( LAW ) , GPE ( LAW DATE ) , GPE ( LAW ) , GPE ( section CARDINAL(a ) of ORG ) and GPE ( LAW ) .","In the majority of countries , individuals affected by those disqualifications must resign if they wish to stand for election ( as in GPE and herzegovina ) . In other countries ( such as GPE or GPE ) they may merely request to be suspended from their professional duties during their term of office .","As a general rule , the disqualifications in this category concern managers or heads of companies , corporations or public or private institutions which have interests in ORG activities or which receive ORG aid or grants . They may also concern the chairpersons , general managers or members of the boards of directors of private companies involved in public construction or in property or credit operations ( among many other countries , GPE , GPE , GPE and GPE have such rules ) .","In some countries , members of parliament may not practise any professional or commercial activity or paid employment during their terms of office , except in the educational sphere , and then only in very exceptional circumstances ( GPE , GPE , GPE ) .","The majority of countries do not lay down , in their constitutional or ordinary legislation , an incompatibility with freely practising the profession of lawyer ( for example , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE , GPE , GPE , GPE ) .","NORP However , restrictions or conditions may be imposed on a member of parliament who practises as a lawyer , based on the requirements of independence , professional ethics and availability . Thus , despite the absence of a legislative prohibition in this regard , the NORP ORG stated in a judgment of DATE that the timetable of GPE sittings enabled a member of parliament to practise as a lawyer , subject to the prohibitions concerning conflicts of interest set out in LAW and the legal profession \u2019s ORG .","This specific concept of conflict of interest exists in several NORP legislative provisions . Thus , in GPE , LAW prohibits any lawyer registered with the Bar who is a member of parliament from carrying out , directly or indirectly through an associate or colleague ( except before the ORG justice or ORG ) , any professional act in criminal cases concerning certain crimes or offences against the ORG or the areas of finance or the press , or to plead in civil proceedings for companies which receive ORG grants , financial companies or companies which use savings , companies engaged in civil engineering , construction or property development , or against the ORG , ORG - owned companies , local authorities or public establishments .","Similar provisions exist in the legislation of other civil - law countries , such as GPE ( section CARDINAL of LAW ) , GPE ( section CARDINAL of the Statute of Members of ORG ) , GPE ( section CARDINAL of ORG Act ( Law no . CARDINAL ) , Title PERSON on members of parliament , as amended by ORG ) and GPE ( section QUANTITY of the Disqualifications of members of ORG CARDINAL ( Law no . CARDINAL ) ) .","In the common - law countries , the codes of ethics of members of parliament guarantee ORG independence vis - \u00e0 - vis possible conflicts of interest by means of administrative and procedural measures . In GPE , members of parliament must declare any work or paid employment and have this declaration entered in the register of PERSON interests . Failure to register an interest may result in sanctions ( Code of Conduct for Members of ORG to the Rules relating to the ORG of Members of ORG ) . Similar provisions exist in GPE ( sections CARDINAL , DATE and CARDINAL of ORG and in GPE ( LAW of Members of ORG ) .","Those procedures for declaring and registering the assets and financial interests of members of parliament have also been adopted in some countries of continental LOC . Thus , the Rules of ORG provide for a similar system to determine cases of incompatibility : within DATE of the ORG \u2019s first sitting , each member must submit a declaration to the speaker concerning the functions occupied by him or her at the time of standing for election , and those commercial or professional activities which he or she continues to carry out . In GPE , members of parliament are also obliged to notify their financial interests and any other professional activity carried out by them when they take up their duties ( section QUANTITY of the DATE LAW ) .","Other more practical limitations and restrictions have been added to those cited above , which are based on the concept of independence and conflict of interest . Various regulations on the status of members of parliament require that they give their parliamentary activities priority over any other private work , whether remunerated or not . In GPE , ORG may , by CARDINAL majority , require that a member of parliament forfeit his or her seat , permanently or for a specific period , if the individual concerned neglects his or her duties in a significant and repeated manner . In practice , this obligation is reflected in a significant reduction in the time spent working in other professions , or withdrawal from them ( as in GPE ) .","In GPE , the requirement to carry out parliamentary duties on a full - time basis results in very restrictive rules on disqualification ( section CARDINAL of the DATE implementing PERSON on the general electoral system ) ; holding a parliamentary seat is incompatible with the direct or indirect exercise of any private or public profession or activity , remunerated by way of wages , salaries , dues , fees or other means ( an exception is made for university lecturers ) . However , section CARDINAL(CARDINAL ) of the DATE implementing PERSON permits interested parties to apply to the relevant chamber \u2019s disqualification committee for leave to conduct private activities which do not concern public bodies or services , public companies , companies which are financed from public funds or credit or insurance companies .","Parliamentary committees exist in several countries . They may authorise professional activity , including in the public sector , which would otherwise be considered incompatible with the holding of a parliamentary seat ( see section CARDINALa(CARDINAL ) and ( CARDINAL ) of LAW ) . In certain cases , those activities must be carried out without remuneration .","A blanket prohibition on exercising any profession , trade or remunerated form of employment , similar to that laid down in the NORP or NORP legislation , also exists in a more or less rigid form in other countries , especially those of central and eastern LOC , such as GPE ( Article CARDINAL of the LAW ) , \u201c the former GPE \u201d ( section CARDINAL of the Status of Members of Parliament Act ) , GPE ( LAW ) and GPE ( LAW ) . As in GPE , however , exceptions exist for teaching , scientific research and creative activities ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104281","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2011,"docname":"CASE OF SIRYK v. UKRAINE","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (victim);Violation of Art. 10","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and lives in Irpin .","On DATE the applicant sent to ORG a letter in which she complained that the management of ORG , which was under the authority of ORG and at which her son had studied before being expelled in DATE , were engaging in unlawful and corrupt activities .","The relevant parts of the letter read as follows :","\u201c I address you concerning the real situation at the ORG ... [ This letter ] will concern the flagrantly unfair attitude towards students of ORG , headed by [ S. ] , to students ' parents , with the complete ... support ... of the President of the ORG [ M. ] ...","The reason for [ addressing you ] is a television report , broadcasted on DATE , concerning the student protest organised by [ M. ] against [ his ] dismissal from the post of President of the ORG . I really hope that my letter can influence the course of events .","My son , Mr PERSON , [ who ] had successfully and independently entered ORG of [ the ORG ] , was expelled from it ... I could not even imagine that the methods described below were applied in a ORG educational institution ...","... My son missed the beginning of studies because of a severe infectious disease ... Subsequently , I was called [ to LAW ] and during a private conversation [ S. ] told me that [ students ] like my son could not study at her faculty under the normal conditions , and that if I did not want to have problems with [ graduation ] I had to agree to additional financial conditions , in particular , to pay her CARDINAL [ United States dollars ] for every exam , and CARDINAL [ United States dollars ] for every test ... After my unconditional refusal , my road of sorrows began ...","CARDINAL or CARDINAL times a week I was called to the office of the PERSON [ of ORG ] for numerous [ discussions of problems ] , CARDINAL of the first of which concerned the checking of [ my son 's ] medical documents ... the [ professors ] shouted at me , called me a swindler and so on ...","Because he had been on sick leave ... and because of the enduring tense discussions with the PERSON and the Deputy PERSON ... my son did not have normal conditions in which to study ... When I tried to enter the office of the PERSON in order to discuss that matter , she ... simply ... pushed me out of the office ...","And I wrote a detailed complaint to the President [ of the ORG ] ... ( a copy is enclosed ) ... [ T]he President ordered that my son be allowed additional time to take DATE exams ... [ H]owever , afterwards arbitrariness on a larger scale began : professors were simply receiving from [ S. ] and [ the Deputy PERSON ... categorical instructions not to allow my son to take exams ... Those instructions were rigorously complied with , as the staff of the ORG was hired on the basis of personal loyalty towards the management or dependency on the management [ of the ORG ] : numerous relatives ... close friends ... former students [ of the ORG ] ... about whose knowledge , competence and work experience it is not possible to speak . It is difficult for them to find another job , therefore they are ready to fulfil any assignments , obey any wishes of the management ...","... [ S. ] and [ B. ] became so impudent that together they conducted negotiations with me concerning extra - contractual payments [ for my son 's studies ] at the office of [ S. ] . In a normal civilised country [ people ] would have already compared the earnings of the ORG servants and their standard of living . What [ amount of ] salary enables the PERSON of the faculty [ S. ] to wear different exclusive imported clothes and diamonds DATE ? !","... This was the rudeness , extortion and derision which I endured during DATE at the ORG institution , having paid a substantial amount of money [ for the education ] . The most alarming thing in this story is that our case is not the only one ...","At the same time [ as this was happening to us ] ... CARDINAL persons were simply kicked out of the ORG in the same way ... the teachers received from the PERSON or the Deputy PERSON categorical instructions not to allow a particular student to take an exam ...","The whole process of the intentional expulsion of certain [ students ] and the admission of others on a contractual basis is ... a system of extorting of money from the parents devised by the management of the faculty and the ORG ...","All the actions of [ S. ] , approved by [ M. ] , demonstrate [ their ] legal incompetence and ruthless abuse of power , though the old [ ORG ] regime generously appraised her ' achievements ' ; during its DATE [ the old regime ] awarded [ S. ] the title of ORG , and the President of the ORG promoted her to First VicePresident [ of the ORG ]","I hoped the new authorities would sort everything out , but [ people like PERSON feel perfectly at home under any regime .","In addition to the violations described [ above ] , I ask you to look at the following :","NORP On what does [ the ORG ] spend the budgetary funds and the money from [ students ' ] parents ?","- why does the President of ... [ the ORG , in whose possession ] there is an expensive ' Mercedes ' , additionally buy an ' Audi A-CARDINAL ' for [ the price of ] CARDINAL [ NORP ] hryvnias ? !","- what is the source of the money and what is the need for the business trips on which [ M. ] and [ S. ] constantly go ?","- what are the earnings [ allowing ] the ORG servant [ S. ] to wear different expensive ... clothes and diamonds DATE ?","- how did [ S. ] manage to gain her doctor 's degree so soon [ after ] having completed her higher education at the ORG ...","- what benefits does [ the ORG ] receive from the companies of [ M 's ] brother and sister ?","- on what grounds did the staff of the ORG obtain double salary payments at DATE ...","As regards the activities of those persons during the [ Presidential ] election [ of DATE ] ... [ M. ] and [ S. ] ... did not let students take part in meetings in support of PERSON ... Students were forced ... to vote in the ORG under the supervision of the professors ... According to the parents of students [ wishing to enter the ORG ] , during the [ DATE ] summer admission campaign [ M. ] ... openly stated that he was collecting money for the [ Presidential ] election [ of DATE ] ...","The only thing which I wish to try to achieve [ is ] that my letter helps to restore justice in our small Irpin region ... \u201d","NORP In DATE PERSON , who was at the time the First Vice - President of the ORG , instituted defamation proceedings against the applicant in the ORG of GPE .","Ms S. alleged that by a letter of DATE the applicant had disseminated untrue and defamatory statements about her , and asked the court to order the retraction of the statements . PERSON also claimed compensation for non - pecuniary damage .","The applicant , in her turn , contended that the information contained in the impugned letter was based on facts , some of which could be confirmed by witnesses . She also argued that her statements were , for the most part , value judgments , for which she should not be held responsible pursuant to section CARDINAL of LAW . The applicant , relying on the decisions of courts in similar , according to her , defamation cases , also submitted that by her letter of DATE she had simply informed the higher authorities about irregularities at the ORG and had not disseminated the statements about PERSON within the meaning of LAW of DATE .","By a letter of DATE the applicant requested the President of ORG to transfer the case to a district court in GPE , stating that ORG husband worked as a judge in LOC of GPE and could influence the outcome of the proceedings before ORG . By a letter of DATE the Deputy President of ORG informed the applicant that her request had been rejected as unfounded .","On DATE the FAC , relying on Articles CARDINAL and CARDINAL of LAW of DATE , ruled in part in favour of PERSON It found that the applicant had failed to prove her statements that the latter had treated the students and their parents unfairly ; that she had demanded from the applicant a payment for every exam and test which the applicant 's son had had to sit ; that she had been rude or shouted at the applicant ; that she had called the applicant a swindler ; that she had pushed the applicant out of the office ; that she had given instructions to the professors not to allow the applicant 's son to take exams ; that she had not allowed students to attend the meetings in support of PERSON during the Presidential election ; that the actions of PERSON had demonstrated that she was legally incompetent ; and that she had exceeded her powers .","NORP The court further held that the above statements had been publicly disseminated , as the letter had been addressed to a legal entity and the applicant could have foreseen that it would be read by CARDINAL person . It also noted that PERSON had acquainted herself with the text of the letter in the presence of the President of the ORG and representatives of ORG .","The court declared the above statements to be untrue and defamatory and ordered the applicant to retract them by rescinding the impugned letter . The court also ordered her to pay Ms S. CARDINAL,CARDINAL NORP hryvnias ( ORG ) in compensation for non - pecuniary damage .","On DATE ORG upheld the judgment of the first - instance court in full .","On DATE ORG dismissed the applicant 's request for leave to appeal in cassation as unsubstantiated .","The relevant extracts from the LAW read as follows :","\u201c ... 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 pecuniary and non - pecuniary damage inflicted by the collection , storage , use and dissemination of such incorrect information . \u201d","\u201c Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .","Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .","The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . \u201d","\u201c Everyone has the right to file individual or collective petitions or to personally appeal to bodies of ORG power , bodies of local self - government , and to officials ... of those bodies , who are obliged to consider the petitions and to give a substantiated reply within the term established by law . \u201d","The relevant extracts from LAW of DATE read as follows :","\u201c A citizen or an organisation shall be entitled to demand in a court of law that material be retracted 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 information proves that it is truthful ...","A citizen or an organisation concerning whom material that does not conform to the truth and damages their interests , honour , dignity or reputation has been disseminated shall be entitled to demand compensation for pecuniary and non - pecuniary damage as well as a retraction of such information ... \u201d","The relevant extracts from LAW of DATE read as follows :","\u201c CARDINAL . A physical person whose non - pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and ( or ) members of his or her family , shall have the right to reply , and [ the right to ] the retraction of that information ...","...","Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary .","NORP Untrue information shall be retracted by the person who disseminated the information ...","If the untrue information is contained in a document which has been accepted ( issued ) by a legal entity , that document shall be recalled .","A physical person whose non - pecuniary rights have been infringed in printed or other mass media shall have the right to reply , and also [ the right to ] the retraction of the untrue information in the same mass media , in the manner envisaged by law ...","Untrue information shall be retracted irrespective of the guilt of the person who disseminated it .","NORP Untrue information shall be retracted in the same manner as it was disseminated . \u201d","\u201c CARDINAL . If there has been pecuniary and\/or non - pecuniary damage caused to a physical person as a result of a violation of his personal non - pecuniary rights , the damage shall be compensated .","The relevant extracts from LAW provide as follows :","\u201c ...","Liability for the infringement of the legislation on information shall be borne by persons responsible for the following infringements :","...","dissemination of information that does not correspond to reality , [ or ] defames the honour and dignity of a person ... \u201d","\u201c No one may be held liable for making value judgments .","Value judgments , excluding insults and libel , are statements which do not contain factual data , in particular , criticism , the evaluation of actions , and also statements which can not be said to contain factual data because of the way they are worded , in particular , [ with ] the use of hyperbole , allegory , or satire . Value judgments are not subject to retraction and their truthfulness need not be proved ... \u201d","Relevant extracts from the judgment read as follows :","\u201c ... ORG of GPE found that :","A citizen , [ ORG ] , has lodged with ORG a request for an official interpretation of the provision of LAW [ of DATE ] containing the phrase \u201c disseminated such information \u201d . ... According to the applicant , the practical need for an official interpretation is justified by the lack of coherence in the application of that provision by the courts of GPE ...","[ The applicant ] maintains that ORG of GPE found that his petition to ORG against a tax inspector for unlawful actions ... disseminated information which did not correspond to reality , and degraded the honour , dignity and reputation of the tax inspection employee . By its judgment , the court obliged [ ORG ] to retract the information by sending a petition to the relevant department of the [ Tax ] administration , and to compensate that official for the damage caused .","A judicial panel of ORG and a panel of judges of ORG of ORG dismissed the appeal in cassation of [ ORG ] against the judgment of the district court .","... ORG of GPE considers that petitions by citizens to a lawenforcement body which contain certain information concerning the failure of officials to comply with the laws , are submitted ... not for the purpose of notifying the community or citizens of such matters , but seeking to have it verified by competent officials . Therefore , such petitions can not be considered to constitute dissemination of information degrading the honour , dignity or reputation of , or causing damage to , the interests of an official of a law - enforcement body , within the meaning of LAW ...","At the same time , [ if ] petitions to a law - enforcement body contain knowingly untrue information , this will lead to disciplinary , civil - law , administrative , or criminal liability ...","In particular , Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW of GPE provide for administrative liability for dissemination of untrue rumors which can provoke panic among the population or a violation of public order , and for notification to registration bodies of acts of civic status of knowingly untrue information .","LAW of GPE provides for criminal liability for knowingly untrue reports concerning a planned explosion , fire , or other action which may cause deaths or have other grave consequences ( LAW , knowingly untrue reports of crimes to a court , prosecutor , investigator , or body of inquiry ( Article CARDINAL ) etc ...","The dissemination of untrue information concerning the private ( family ) life of an official of a law - enforcement body in his personal or citizen 's capacity may constitute a ground for the applicant 's civil - law liability under LAW .","In the light of the foregoing ... ORG of GPE decides that :","Under LAW ... ' disseminated such information ' shall be understood , within the context of the constitutional appeal , as meaning that statements made in letters , petitions or complaints to a law - enforcement body by a person who is of the view that officials of that body have infringed his rights in the exercise of their functions can not be considered to be dissemination of information degrading the honour , dignity or reputation of , or causing damage to , the interests of those persons .","[ The inclusion of ] knowingly untrue information in letters , petitions , or complaints to a law - enforcement body shall lead to the liability provided for by the current legislation of GPE .","The judgment of ORG is binding on the territory of GPE , is final and may not be appealed against ... \u201d","The relevant extracts from the ORG provide as follows :","\u201c ... CARDINAL . According to LAW everyone has the right to file individual or collective petitions or to personally appeal to bodies of ORG power ...","The courts shall take into account that , if a person files a petition with the bodies mentioned [ above ] which contains certain information , and if that body is competent to verify such information and to give a reply , [ the fact that ] ... the information has not been confirmed as true ... may not as such constitute a ground for allowing a [ defamation ] claim , as in such a case the person has exercised his constitutional right under LAW , and [ has not ] disseminated untrue information .","If a person files a petition with the law - enforcement bodies , the courts should take into account the conclusions of the judgment of ORG of DATE ... ( the case concerning dissemination of information ) ... \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84946","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2008,"docname":"ZWAR v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych","text":["The applicant , PERSON , is a NORP national who lives in PERSON in GPE . She was represented before the Court by Mr PERSON , a lawyer practising in GPE .","From DATE to DATE the applicant \u2019s late husband PERSON exercised the profession of a painter . In DATE he was diagnosed as suffering from leukaemia . He died of the disease on DATE .","On DATE the medical clinic where the applicant was treated gave notice of the disease to ORG ( Bau - Berufsgenossenschaft ) on the ground that PERSON \u2019s disease might have been work - related , which would entail pension benefits .","On DATE ORG refused to establish that Z. \u2019s leukaemia was work - related for having been caused by his exposure to benzene during his work as a painter . Following enquiries on ORG former working conditions and relying on expert opinion , the Insurance considered that the dosage of benzene PERSON had been exposed to during his work had not been sufficiently high to cause a work - related disease .","On DATE the applicant lodged an administrative appeal . She notably relied on CARDINAL expert opinions commissioned by PERSON \u2019s health insurance . On DATE ORG , having heard further expert opinion , rejected the applicant \u2019s administrative appeal .","On DATE the applicant lodged a motion with ORG ( ORG ) , alleging that ORG \u2019s disease had been caused by over - exposure to benzene , notably during DATE of his professional life .","On DATE and CARDINAL DATE a court appointed expert submitted his expert opinion . He considered that there was no conclusive evidence that the applicant \u2019s illness had been caused by exposure to benzene at his work - place .","On DATE the ORG summoned PERSON \u2019s health insurance to join the proceedings as a third party .","By judgment of DATE ORG granted the applicant \u2019s claim . Relying mainly on the expert opinions commissioned by ORG , ORG considered that it had been established with a sufficient amount of probability that PERSON \u2019s disease had been caused by his exposure to benzene at his workplace .","This judgment was served on the applicant \u2019s counsel on CARDINAL DATE .","On DATE the defendant ORG lodged an appeal with the ORG ( ORG ) . In support of her allegation that PERSON \u2019s disease had not been caused by exposure to benzene the defendant submitted a further expert opinion .","On request by ORG CARDINAL further expert submitted his expert opinion on DATE .","Subsequently , the applicant asked for a fresh expert opinion to be prepared pursuant to section CARDINAL of FAC ( see relevant domestic law , below ) , and named Prof PERSON as an expert .","On DATE Prof PERSON declined the request as he did not consider it possible to establish whether the disease had been caused by exposure to benzene .","Following this , the applicant named another medical expert who submitted his expert opinion on DATE .","In reply , the defendant party submitted a further opinion submitted by another expert on DATE .","During the hearing held before ORG on CARDINAL DATE the applicant submitted a presentation held by the expert PERSON on a conference relating to the assessment of exposure to benzene at painter \u2019s workplaces . According to the applicant , this presentation established that PERSON had been exposed to dosages of benzene which exceeded the limits set down in the relevant safety guidelines . She requested ORG once again to hear the experts with regard to these submissions .","On DATE ORG quashed ORG judgment , rejected the applicant \u2019s claim and refused to grant the applicant leave to appeal . Having regard to the expert opinions and statements submitted during the administrative and court proceedings , ORG considered that it could not be established with sufficient probability that PERSON \u2019s disease had been caused by overexposure to toxic substances at his workplace .","By way of conclusion , ORG found as follows :","\u201c Summing up , the ORG considers that the facts of the case have been sufficiently established by the medical expertises and opinions by PERSON , Prof GPE . , Prof T , and , in particular , by the expert Prof PERSON The differing assessment of the causation issue submitted by Prof PERSON , Prof We . and the expert Prof No . - who had been heard according to section CARDINAL of ORG Acts - has been reliably rebutted . The plaintiff \u2019s submissions do not induce the court to undertake further examinations . It was , in particular , not necessary to comply with the plaintiff \u2019s request to hear the experts with regard to the presentation submitted during the oral hearing . Even assuming that the dosage of benzene PERSON had been exposed to had exceeded the limits of the relevant safety guidelines , this does not prove that the disease had been work - related , as the safety guidelines are based on what is technically feasible and do not prove that an excess of the safety limits causes health damages . \u201d","This judgment was served on the applicant \u2019s counsel on DATE .","On DATE ORG ( Bundessozialgericht ) rejected the applicant \u2019s complaint against the refusal to grant her leave to appeal . That court considered that the applicant had failed sufficiently to establish which considerations should have induced ORG to raise further evidence , as requested by the applicant .","On DATE the applicant lodged a constitutional complaint .","On DATE ORG ( file - no . CARDINAL BvR CARDINAL\/CARDINAL ) , sitting as a panel of CARDINAL judges , refused to admit the applicant \u2019s constitutional complaint as being inadmissible . This decision was served on the applicant \u2019s counsel on DATE .","Section CARDINAL of the Social Court Act reads as follows :","\u201c ( CARDINAL ) On application by the insured person , the disabled person , the person entitled to benefits or his surviving dependants , a physician to be determined shall be heard as an expert . The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and , unless the court decides otherwise , the applicant in the end bears the costs .","( CARDINAL ) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5133","languageisocode":"ENG","respondent":"LIE","branch":"ADMISSIBILITY","date":2000,"docname":"WALDEN v. LIECHTENSTEIN","importance":3,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant is a NORP citizen born in DATE and residing in GPE since DATE . In the proceedings before the ORG he is represented by PERSON , a lawyer practising in GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant 's wife retired in DATE and received a single old age pension ( einfache GPE ) . Since DATE , the DATE allocation amounted to MONEY ( ORG ) . The applicant retired in DATE .","On DATE ORG ( Alters und Hinterlassenenversicherung ) fixed a common married couple 's pension ( Ehepaar - Altersrente ) for the applicant and his wife in the amount of ORG DATE . In accordance with the relevant legislation , the husband is entitled to receive the married couple 's pension , while the wife 's former claim to a single old age pension ceases and is replaced by a derived right to payment of CARDINAL of the common pension . Further , the married couple 's pension is calculated on the basis of the husband 's contribution years . It is PERCENT of the husband 's single pension . As the applicant 's insurance period was shorter than his wife 's , the resulting amount was lower than his wife 's single pension . According to the relevant provisions a compensation was added to arrive at the amount of his wife 's former pension .","On DATE the applicant filed an objection ( PERSON ) against the above decision . He argued that the method of calculation applied rendered his own contributions null and void as the married couple 's pension was no higher than his wife 's single pension . Further , he held that he and his wife were discriminated against in relation to other married couples . He requested CARDINAL separate pensions to be paid instead of the common pension .","On DATE ORG dismissed the applicant 's objection . As to the applicant 's first argument it observed that the GPE pension scheme was based on the principle of social solidarity . Thus , it did not grant pension claims in direct relation to the contributions paid . As to the applicant 's second argument , ORG agreed that there was unequal treatment of men and women as only the husband was entitled to the married couple 's pension , which was calculated solely on the basis of the husband 's contribution years . Moreover , in a case like the applicant 's where the husband had an incomplete insurance career while his wife 's was complete , a lower married couple 's pension was paid than in the opposite case . However , the legal provisions were clear and precise and did not permit any other interpretation . The question could , thus , only be resolved by an amendment of the law . Such an amendment was envisaged for DATE .","On DATE ORG ( Obergericht ) , upon the applicant 's appeal , confirmed ORG decision as being in conformity with existing legislation even if it was contrary to the principle of non - discrimination . It also refused the applicant 's motion to interrupt the proceedings and to request ORG ( PERSON ) to examine the constitutionality of the contested provisions of ORG . It found that in the event of an abrogation of these provisions the applicant 's claims would not find any other legal basis without further initiative of the legislator .","On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant 's appeal on points of law . It stated that the unequal treatment of husband and wife in the current pension scheme could not be remedied by the courts , but required an amendment of the relevant law by the legislator .","On DATE the applicant , after having lodged a complaint with ORG , challenged ORG judge PERSON for bias on the ground that the latter had written a dissertation on social security law , which had been partly financed and distributed by ORG .","On DATE ORG , sitting as a Constitutional Court ( Verfassungsgerichtshof ) , rejected the applicant 's challenge for bias and partly granted his constitutional complaint .","As to the applicant 's challenge for bias , ORG found that the past financial support and distribution of a dissertation by a public law institution did not create such a personal link as to affect a judge 's impartiality .","As to the applicant 's complaint , ORG found that the applicant 's constitutional rights were violated by ORG decision . The married couples ' pension system , based on a traditional view of marriage , was unconstitutional as being contrary to the principle of non - discrimination on the basis of gender , in particular as only the husband 's contribution years were decisive for the calculation of the married couple 's pension . Moreover , it was unconstitutional as being contrary to the general principle of equal treatment , in that married and unmarried couples were treated differently with regard to their pension benefits .","","However , ORG rejected the applicant 's request to quash the contested judgment and to set aside the relevant provisions in the Old Age Pension Act . It noted that it would , technically speaking , be possible to set aside a number of provisions with the result that the applicant and his wife would each be entitled to a single old age pension . However , this would cause massive disadvantages to others , in particular to married couples where the wife did not have an own insurance career . The situation was even more complex in view of ORG between GPE and GPE which could only operate if the requirements for pension claims were more or less identical in both GPE . In conclusion , ORG did not see itself in a position to set aside the contested provisions , given the complexity of social security law and the statutory time - limit of a maximum of DATE for suspending an abrogation . ORG went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable . However , a comprehensive legal reform with the explicit aim of guaranteeing gender equality in social security law was already being prepared and ORG had requested the ORG to submit all necessary amendments of social security law before DATE . Moreover , the draft amendment of the Old Age Pension Act included provisions according to which couples in the position of the applicant and his wife would be entitled to CARDINAL single pensions . Having regard to the time - table for the pending reform , the above - mentioned maximum time - limit of DATE for enacting new legislation could possibly be complied with . Nevertheless , it was not justified to annul the unconstitutional provisions with a DATE suspension as the envisaged date of entry into force , namely DATE , would become illusory if for instance a referendum was requested . In this case , the annulment would become effective and would entail all the negative consequences described above .","In fact , the amendment to ORG was adopted in DATE ( see below ) . According to its provisions the applicant and his wife each receive a single pension of ORG CARDINAL and CARDINAL , respectively , as of DATE .","B. Relevant Domestic Law","ORG ( Gesetz \u00fcber die Alters- und GPE ) of DATE , PERSON ( LGBl ) CARDINAL , before its amendment , provided for common married couple 's pensions which were to be paid as soon as both spouses reached the retirement age . When a common pension was paid the wife 's claim for pension payments expired . Only the husband 's contribution DATE were decisive for the calculation of the married couple 's pension .","By amendment of DATE , PERSON , to ORG , the married couple 's pension system was replaced by a scheme providing single pensions for both spouses . Married couple 's pensions existing at the time of the amendment were transformed into CARDINAL single pensions as of DATE , subject to the clause that the total amount of both pensions was not to be lower that the previous married couple 's pension ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108828","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2012,"docname":"A.G. v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant , ORG , is a NORP national who was born in DATE and lives in Allerum . He was represented before the ORG by Dr. jur . A. GPE , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr B. GPE , of ORG . ORG did not make use of their right to intervene under LAW .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the father of A. , a CARDINAL year - old girl , reported to the police that his daughter had told her mother DATE before that she had been sexually abused by the applicant . The incident was supposed to have taken place some time during the DATE break .","On DATE , TIME and TIME , A. was interviewed by a police inspector . The interview was recorded on videotape . At that time , the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him .","On DATE the applicant was questioned by the police , in the presence of his newly - appointed defence counsel . Before the questioning he was notified , in accordance with LAW , section DATE , of LAW ( PERSON ) , that he was suspected of rape of a child ( v\u00e5ldt\u00e4kt mot barn ) .","On DATE , between TIME and CARDINAL a.m , PERSON was interviewed a second time by the police inspector who had conducted the first interview . This interview was also videotaped . The applicant \u2019s counsel was shown the recording of the first interview before DATE second interview . He followed the second interview on a monitor , from an adjoining room and used the opportunity to put supplementary questions to A. through the interviewing police inspector . The applicant himself was not present , however .","On DATE the applicant was questioned by the police a second time , in the presence of his counsel .","The police also interviewed ORG \u2019s father and mother , PERSON \u2019s father \u2019s partner , the cohabitee of the grandmother of the partner , ORG \u2019s grandmother and the DATE friend of A. The last interview was videotaped .","The preliminary investigation was concluded on DATE . The applicant and his counsel were notified of the investigation report on DATE , at which time they were shown the videotaped interviews with A. and with her friend . The applicant \u2019s counsel requested that a supplementary interview be held with the friend \u2019s father . This interview was held on DATE . No further requests or comments were made concerning the report of the preliminary investigation .","The applicant was subsequently indicted for rape of a child .","ORG ( tingsr\u00e4tten ) of GPE held a hearing in the case on DATE . Heard by the court , the applicant denied the charges . The videotaped police interviews with A. were shown during the hearing . The court also heard evidence from ORG \u2019s mother and PERSON \u2019s father \u2019s partner , on the proposal of the prosecution , as well as the father of A. \u2019s friend , at the request of the defence . No request was made for A. to be heard in person .","In a judgment of DATE ORG , by a majority of CARDINAL lay assessors against the presiding judge , convicted the applicant of the lesser offence of sexual assault of a child ( sexuellt \u00f6vergrepp mot barn ) and sentenced him to TIME of community service . It also ordered him to pay MONEY in damages to A. The court gave the following reasons :","\u201c [ The applicant ] has completely denied the charges brought against him by the prosecutor . The evidence consists mainly of the information given by the plaintiff at CARDINAL videotaped interviews which have been played back at the main hearing . Defence counsel had the opportunity to put supplementary questions to A. through the interviewer during the second interview . Nevertheless , interviews of this kind should always be evaluated with caution ( ... ) . The court can not base its evaluation of the credibility of the plaintiff and the reliability of the information submitted on impressions of the kind conveyed by an examination in court . [ The applicant ] has been prevented from putting questions to the plaintiff through his counsel before the court and the court has not been able to put questions to the plaintiff either .","The interviews in issue are of good quality . There have been good opportunities to observe the plaintiff \u2019s facial expressions and body language during the interview . Without any leading questions having been put to her , the plaintiff has given an account which in itself is consistent and which does not contain direct contradictions or statements that evidently can not be true .","The suspicion that A. has been subjected to an assault arose when , in DATE , she told her mother about the incident . Nothing that has emerged in the case indicates that ORG has been put under pressure by , for instance , her parents before she , at the police interview , gave an account of what she had been subjected to . The information that A. , according to witness statements , had revealed before the police interview is concordant with the information she gave at the police interview . Moreover , there are no noticeable divergences between the accounts in the police interviews which took place with DATE interval . During the interviews she has given a detailed account of what [ the applicant ] did and stated that she told [ him ] that it hurt . She has shown in which position she was lying and how [ the applicant ] was placed in relation to her when the assault occurred .","The fact that A. revealed what had happened only in DATE , whereas the incident is supposed to have occurred during DATE break of DATE , could be held against the credibility of her statements . Furthermore , it has emerged that A. , immediately prior to telling about the assault in issue , made intercourse - style movements against the arm of her mother \u2019s partner and explained that she \u201c made babies \u201d with him . There is no indication that any such movements occurred in connection with the incident now being examined . It has also emerged that DATE was subjected to a sexual act , during which the perpetrator stated that he was showing \u201c how one makes babies \u201d .","The account given by [ the applicant ] is not in itself contradictory . However , his statement that the plaintiff made advances to him appears , in the view of ORG , to be less probable given her age and level of development . It also appears less probable that he would have occupied himself for such a long period of time with a younger girl who , according to his own opinion , was rather demanding , although it has emerged that he is helpful and sometimes baby - sits for others .","The ORG places reliance in DATE \u2019s statements and finds beyond reasonable doubt that [ the applicant ] committed the sexual acts indicated by the prosecutor in the indictment . \u201d","ORG then considered that the sexual acts in question \u2013 which consisted of touching A. \u2019s genitals and trying to insert a finger into her vagina \u2013 were not comparable to intercourse . Consequently , the applicant could not be held liable for rape of a child .","In her dissenting opinion , the presiding judge stated that , while the applicant \u2019s account of events , for the reasons indicated in the judgment , appeared somewhat less plausible than that given by A. , it did not contain any direct contradictions or demonstrable errors . She was of the opinion that a verdict of guilty required supporting evidence of some strength . However , the evidence given by various witnesses could not be regarded as independent of the police interviews and it did not in any important aspect strengthen the prosecutor \u2019s claims . Consequently , in the absence of further information , the judge did not find that the applicant \u2019s guilt had been proven beyond reasonable doubt .","The applicant appealed to ORG ( hovr\u00e4tten ) of GPE and PERSON . Asserting that , when it is CARDINAL person \u2019s word against another \u2019s , certain supporting evidence is required for a conviction , he maintained that the evidence invoked by the prosecutor did not lend such support to the statements made by A.","In DATE the appellate court held a hearing , during which the videotaped police interviews with A. were played back . Audiotapes of the testimony given by witnesses before ORG were also played back . Moreover , it took evidence from a new witness proposed by the defence , a neighbour and former partner of ORG \u2019s friend \u2019s father . Again , the applicant did not request that PERSON give evidence during the hearing .","In a judgment of DATE ORG upheld the applicant \u2019s conviction and sentence . It restated some precedents of ORG ( ORG domstolen ) , according to which the outcome in cases concerning sexual offences mainly hinged on the evidence given by the plaintiff . The absence of observations by witnesses or technical evidence did not prevent the evidence from being considered sufficient for a conviction . However , to an increasing extent , a verdict of guilty required that the plaintiff\u2019","\u201c When it comes to the videotaped interviews that have been held with ORG , as indicated by ORG , such interviews must be evaluated with caution , although there is no reason to direct any particular criticism against the interviews that have been held in the instant case .","As ORG has set out , there are no noticeable divergences between the statements given by A. on different occasions . Her account of what [ the applicant ] did and how she felt has been relatively exhaustive . It contains certain details which strengthen the impression that she is describing something that she has experienced . Such a detail is her description in the videotaped interviews that they are playing , that [ the applicant ] then fetches the mobile phone and that he , after having introduced the idea of nude photographing , takes photos of A. who , by then , has pulled down her knickers and shorts but is still dressed on the upper part of the body . Another detail is her description of the condom which the applicant is supposed to have put on CARDINAL of his fingers . She makes a drawing of it and describes it as being sticky , transparent and soft . It is true that her mother has testified that it is not ruled out that , on some occasion , she might have told PERSON what a condom is , but there is no indication that A. earlier had a particular familiarity with the subject .","The information given by A. at the interviews is supported by her mother \u2019s statement . Her account has been very nuanced , and she has given her statement with rather unusual openness , thoughtfulness and moderation . She has reported that , in connection with a story - time , A. made movements against her mother \u2019s partner \u2019s arm and said that she \u201c made babies \u201d and that , when asked from whom she got that idea , she answered [ the applicant ] . Asked when they had talked about that , PERSON replied that it had happened when he had asked if she had seen nude photos of her vagina . When she had answered in the negative , he had , according to ORG , suggested that they take some photos , which she first refused but later agreed to . According to the mother , PERSON seemed to be ashamed that she had agreed to this . When asked by the mother if anything else had happened , PERSON had told the rest . A. \u2019s account is also to some extent supported by the testimony given by PERSON \u2019s father \u2019s partner . A. has given information about the assault also to her , in particular on the introductory part .","Are there then any circumstances which may undermine A. \u2019s credibility ? A. did not tell her mother about the incident until DATE . It is obvious , however , that her interpretation of the incident is that of a child , into which she has not read everything that a grown - up would . Accordingly , there is nothing striking about the fact that she told about the incident only on an occasion which can be said to have had a certain connection to the incident .","She is supposed to have made intercourse - style movements against a relative on CARDINAL occasion in addition to the above - mentioned . Moreover , on an occasion further back in time , PERSON told her parents that she , together with a friend and her elder brother , experienced something with certain rather innocent sexual connotations . However , neither this nor the other information that has emerged indicates that ORG has any sexual interest or knowledge in the matter which goes beyond the ordinary .","Furthermore , it has not been shown that A. has any motive to give incorrect information about the applicant .","Against this background , ORG finds , in agreement with ORG , that the examination [ of the case ] should be based on the statements given by ORG Through her statements it has been proven that [ the applicant ] made a caressing movement on the outside of A. \u2019s genitals . However , her statements differ to some extent on the question of whether he twice tried to insert a finger or actually did insert it . Consequently , it has been proven only that he tried to do it . \u201d","The applicant appealed to ORG . He claimed that he had been convicted solely on the basis of the statements given by PERSON , which were not supported by any other independent evidence .","On DATE ORG refused the applicant leave to appeal .","Domestic provisions of relevance in the present case are found in LAW ( PERSON ; hereafter \u201c the Code \u201d ) and in the Ordinance on Preliminary Investigations ( PERSON - kung\u00f6relsen , DATE \u201c the Ordinance \u201d ) . There is also some national case - law of interest .","A preliminary investigation takes place whenever there is reason to believe that a crime has been committed . LAW , LAW , of the LAW includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation . The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself . This right , however , does not manifest itself until a person has been informed of the suspicions against him in accordance with LAW , section DATE , of the Code . As far as other interviews are concerned , counsel for the defence may attend if his attendance will not harm the investigation . It is for the person who heads the preliminary investigation \u2013 a police officer or a public prosecutor \u2013 to decide who may attend a specific interview during the preliminary investigation . In cases where the suspect or his defence counsel are present during an interview , questions may only be asked in the order determined by the person in charge of the preliminary investigation ( LAW , section CARDINAL , of the Code ) .","When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime , the person in question must be notified of the suspicions against him , pursuant to LAW , section CARDINAL , of the Code . Under the second paragraph of that provision , an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such . If a request for such an investigative measure is not granted , the reasons for the decision must be given . If the suspect makes a complaint , the issue is settled by the court ( LAW , section DATE , of the Code ) .","Interviews with children conducted in the course of a preliminary investigation are subject to special regulations . Thus , according to LAW , section CARDINAL , of the Code , a child \u2019s custodian should be present whenever a child under DATE is questioned if this can be done without any harmful effects on the investigation .","Further and more detailed provisions concerning the questioning of children are found in the GPE , section CARDINAL of which provides that interviews with , inter alia , an injured party under the age of CARDINAL must be conducted in such a manner that there is no danger that the interviewed person might be harmed . It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters . Furthermore , particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require . Questioning is , moreover , according to section CARDINAL of the Ordinance , not allowed to take place on more occasions than is necessary with regard to the nature of the investigation and the best interest of the child .","Section CARDINAL of the LAW provides that interviews with children must be conducted by persons who are particularly apt to perform the task . In addition , section DATE provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child \u2019s testimony .","Whenever the evidence of a witness below DATE is used in a criminal case , the court must determine , taking account of all relevant circumstances , whether the child should testify ( LAW , section CARDINAL , of the Code ) . There is no corresponding provision applicable to children who are in the position of being the injured party . In practice , however , such evidence is normally presented to the court in the form of a video - recording of the police interview , which is played back during the court \u2019s main hearing . In allowing this to take place , the court applies LAW , section CARDINAL , of the Code , by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed , if the person who has submitted the statement can not be heard before the court or if there are particular reasons for the statement to be relied on , regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court , the importance of the statement and all other relevant circumstances on the other hand .","On a few occasions ORG has examined the question of evaluation of evidence in cases where the prosecutor \u2019s indictment has been based to a large extent on videotaped police interviews with the injured party . In such situations , ORG has stated that the fact that the courts have not had the opportunity to assess the credibility and reliability of a witness or an injured party , and that the accused has not been able to question that person , ought to entail that the statements are examined and evaluated with particular caution . In the published cases ORG DATE p. CARDINAL and ORG DATE p. CARDINAL ORG came to the conclusion that the videotaped interviews , combined with other supporting evidence , were sufficient for a conviction .","In the case ORG DATE p. CARDINAL , the injured party had not attended the main hearing but ORG had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery . ORG , on the other hand , emphasised that LAW and its application and interpretation was of major importance in respect of the application of LAW , section DATE , of the Code . Thus , in the light of the ORG \u2019s case - law , ORG found that that provision of the LAW should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision . According to ORG , the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the LAW and therefore referred the case back to ORG for re - examination .","ORG has in a number of cases examined the question concerning the assessment of evidence in cases regarding sexual offences mainly hingeing on the evidence given by the plaintiff . In such situations , ORG has stated that in order for the courts to find the guilt of the accused beyond reasonable doubt , it is not sufficient that the statements of the injured party are found to be more credible than the applicant \u2019s story . ORG has , however , stressed that even if direct witnesses and technical evidence are generally missing in such cases , this does not prevent a conviction if the injured party \u2019s statements are found throughout to be credible and compatible with other circumstances , for example testimonies regarding the injured party \u2019s behaviour after the incident ( see , for example , ORG DATE p. CARDINAL and ORG DATE p. CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-87213","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF BORYSIEWICZ v. POLAND","importance":3,"conclusion":"Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE . She owns a semidetached house located in a residential area . A tailoring workshop employing CARDINAL people was located in CARDINAL of the building .","On DATE the applicant made an application to ORG for a ban on the operation of the workshop or at least for measures to be taken to reduce the level of noise it generated .","On DATE the Director of ORG , to which the application of DATE must have been transferred , issued a decision in which it found that the workshop was operating without the required permission . He obliged the owner of the workshop to take steps to remedy the situation , inter alia by obtaining an environmental impact assessment of the workshop and by carrying out adaptation works .","On DATE the Governor of ORG approved a \u201c [ t]echnical project on protection of the environment against noise \u201d , and obliged the owner to comply with the project and to submit an evaluation of the noise level .","On DATE the Governor of ORG approved the location of the workshop on condition that the owner complied with the requirements set out in the decision of CARDINAL DATE .","On DATE the Director of ORG of ORG gave instructions as to the way in which the works to adapt the workshop should be conducted . The applicant appealed .","On DATE the applicant lodged an appeal with the Governor of ORG in which she complained that she had not been allowed to participate in the proceedings . She submitted that she should have been treated as a party to them and that she had not received an answer to her application of DATE .","On CARDINAL DATE the applicant made an application to ORG for the proceedings DATE which must have been discontinued on an unspecified DATE to be reopened in order to enable her to participate as a party to the proceedings in order to have her arguments taken into consideration .","On CARDINAL DATE the Governor of ORG stayed the appeal proceedings against the decision of CARDINAL DATE until the request for reopening of CARDINAL DATE had been considered . The workshop \u2019s owner appealed .","On DATE ORG quashed the decision of CARDINAL DATE .","On DATE the Governor of ORG stayed the appeal proceedings against the decision of CARDINAL DATE . The workshop \u2019s owner appealed .","On DATE ORG upheld the decision of DATE . The applicant appealed .","On DATE the applicant made an application to the Governor of ORG requesting , inter alia , that the decisions of CARDINAL DATE and DATE be quashed and that the operation of the workshop be stayed until a decision was made on the merits of her request of DATE .","On DATE the Minister of Environment quashed the decisions of CARDINAL DATE and DATE . In the written grounds he stated that the noise pollution inside the applicant \u2019s home was not a matter of environmental protection , so that there was no legal basis for the proceedings to be instituted . The applicant appealed to ORG .","In a letter of CARDINAL DATE to the Director of ORG the applicant requested that the appeal proceedings against the decision of DATE be stayed until the appeal against the decision of DATE lodged with ORG had been decided . On DATE the Governor of ORG , to whom this request must have been transmitted , stayed the proceedings as requested . The applicant \u2019s neighbour appealed .","On DATE ORG quashed the decision of DATE and remitted the case for reconsideration .","On DATE the Governor of ORG upheld the decision of CARDINAL DATE and set a new time - limit for the workshop \u2019s owner to comply with the imposed obligations .","On DATE the Director of ORG granted permission for the operation of the workshop . The applicant appealed . On DATE the Governor of ORG quashed the decision of CARDINAL DATE and remitted the case for reconsideration . The workshop \u2019s owner appealed .","On DATE proceedings were instituted to determine whether the operation of the workshop was lawful . On DATE the applicant was informed that on DATE an inspection of the building would be carried out . On DATE ORG dismissed the owner \u2019s appeal against the decision of DATE .","On DATE the Mayor of ORG stayed the proceedings concerning the granting of permission until the ORG had given a decision as to whether the operation of the workshop complied with the applicable legal requirements . The applicant appealed .","On DATE the Mayor of ORG issued an operation permit for the workshop . The applicant appealed . On DATE the Governor of ORG informed the applicant that the time - limit set by law to decide on her appeal had been extended because of the need for checks to be done by the building inspection authorities .","On DATE the Governor of ORG upheld the decision of DATE . The applicant lodged a complaint with ORG .","By a decision of CARDINAL DATE the ORG authorised the operation of the workshop . The applicant appealed .","On DATE ORG quashed the decision of DATE and the preceding decision of CARDINAL DATE . It observed that noise evaluation tests were necessary for a decision allowing the operation of the workshop . Such tests had already been carried out in the case , but not in an appropriate manner . They should have been carried out during TIME of the workshop and at different times and should have allowed for the applicant \u2019s involvement to enable her to put forward her arguments to the person conducting the tests .","On DATE the ORG stayed the proceedings concerning the permission to operate the workshop . The applicant appealed and they were resumed at an unspecified DATE .","On DATE the Mayor of ORG issued a decision obliging the workshop \u2019s owner to supplement the submitted documentation by , inter alia , submitting an evaluation of the noise level before DATE .","On DATE ORG gave permission to operate the workshop on the basis of noise evaluation tests carried out by a certain PERSON The applicant appealed , challenging the soundness of the outcome of the tests and the way they had been carried out .","On DATE the ORG of Construction Supervision quashed the decision of DATE , finding that the applicant had not been given an opportunity to be sufficiently involved in the noise evaluation tests .","On DATE the applicant lodged a complaint with the ORG of ORG about inactivity on the part of ORG , to whom the case had been remitted for reconsideration on the strength of the decision of DATE .","On DATE the ORG of Construction Supervision gave a decision in which it found inactivity on the part of LOC and obliged him to give a decision by DATE .","On DATE the applicant lodged a complaint with ORG about the administration \u2019s failure to act in her case .","By a decision of DATE ORG stated that no inactivity on the part of ORG had been found .","On DATE the ORG stayed the proceedings concerning the request for permission to operate , pending the outcome of noise tests to be carried out by ORG . The applicant appealed . On DATE the ORG of Construction Supervision allowed her appeal , quashed the decision staying the proceedings and ordered that they should be conducted further .","On DATE the applicant complained to the administrative court about ORG failure to take any steps to have a proper noise evaluation carried out and to give a decision on the merits of the case . In his reply of CARDINAL DATE ORG summarised the developments in the proceedings since the applicant \u2019s complaint of CARDINAL October CARDINAL and reiterated that the proceedings were , after its decision of DATE , pending before the first - instance authority . It noted that the applicant \u2019s appeal against the decision of DATE to stay the proceedings was fully justified .","By a judgment of DATE the ORG regional administrative court partly allowed the applicant \u2019s complaint and set a DATE timelimit for ORG to give a decision . It summarised the conduct of the proceedings since its judgment of DATE . It further observed that the proceedings had been conducted exceedingly slowly and that no valid justification for this unreasonable delay had been adduced by the administrative authorities .","NORP The proceedings are pending .","Under domestic law inactivity on the part of authorities is open to challenge .","Firstly , a party to administrative proceedings can make a complaint to a hierarchically higher authority under LAW in order to urge the relevant authority to issue a decision within the timelimits fixed in that Code .","If unsatisfied with the outcome of the proceedings initiated by a complaint under LAW , up to DATE a party could have lodged a complaint about inactivity on the part of the administrative authorities with ORG under LAW of DATE on ORG . This provision was repealed with effect from DATE .","On DATE the CARDINAL Act was replaced by LAW of DATE , which provides for similar remedies ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112993","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2012,"docname":"CASE OF COSTA AND PAVAN v. ITALY","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lef\u00e8vre;Paulo Pinto De Albuquerque","text":["The applicants were born in DATE and DATE respectively and live in GPE .","Following the birth of their daughter in DATE , the applicants learned that they were healthy carriers of cystic fibrosis . The child had been born with the disease .","In DATE , when the first applicant was pregnant again , the applicants , who wanted to have a healthy child unaffected by the genetic disease , had a prenatal test carried out . The results showed that the foetus was affected by cystic fibrosis . The applicants then decided to have the pregnancy terminated on medical grounds .","The applicants now want to take advantage of assisted reproduction technology ( hereafter \u201c ART \u201d ) and preimplantation genetic diagnosis ( hereafter \u201c ORG \u201d ) before the first applicant becomes pregnant again . However , under PERSON no . CARDINAL of DATE , ORG is available only to sterile or infertile couples . There is a blanket ban on the use of ORG .","By a decree of DATE , ORG extended access to ART to couples in which the man suffers from a sexually transmissible viral disease ( such as the HIV virus , or hepatitis B and C ) to allow them to conceive children without the risk of contamination of the woman and\/or the f\u0153tus inherent in conception by natural means .","According to the information provided by the ORG and the first third - party intervener , this operation is done by \u201c sperm washing \u201d prior to in vitro fertilisation .","\u201c Access to assisted reproduction technology shall be authorised only where proof is adduced that it is otherwise impossible to eliminate the causes of inability to procreate , and , in any event , [ said access ] shall be limited to medically certified inexplicable cases of sterility or infertility and to cases of sterility or infertility [ deriving ] from a medically certified and verified cause . ... \u201d","\u201c ... PERSON couples , composed of CARDINAL persons of opposite sex , who are married or living together as a couple , of potentially fertile age and alive may have access to assisted reproduction technology . \u201d","\u201c Individuals satisfying the conditions provided for in section CARDINAL shall be informed of the number and , at their request , the state of health of the embryos produced and destined to be transferred into the womb . \u201d","\u201c ... Any test regarding the state of health of an embryo created in vitro , within the meaning of section PERSON ) [ of PERSON no . DATE ] , must be for observation purposes alone ( dovr\u00e0 essere di tipo osservazionale ) . ... \u201d","In this decree the reference to \u201c observation \u201d purposes mentioned in ORG decree no . CARDINAL of DATE was deleted .","Furthermore , the part of this decree concerning certification of infertility or sterility provides that , for the purposes of access to assisted reproduction technology , this must be done","\u201c ... having regard also to particular conditions in the presence of which \u2013 where the man is a carrier of a sexually transmissible viral disease by infection with HIV , or hepatitis B and C \u2013 the high risk of infection for the mother or for the f\u0153tus constitutes de facto , in objective terms , an obstacle to procreation , requiring precautions that necessarily result in infertility of a kind comparable to acute male infertility deriving from a verified and medically certified cause such as that referred to in section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of CARDINAL \u201d .","In this judgment the court set aside on grounds of ultra vires the part of ORG decree no . CARDINAL of DATE limiting any test relating to the state of health of embryos created in vitro to observation purposes alone . The court found that the power to establish the scope of application of such tests was a matter for the legislature alone and not the ministry , which had purely implementing powers .","In this order , following urgent proceedings , the delegated judge of ORG granted , for the first time , a couple who were neither sterile nor infertile , and both healthy carriers of muscular atrophy , access to ORG .","The judge referred , among other things , to the new provisions introduced by ORG decree no . CARDINAL of DATE no longer limiting tests on the state of health of embryos created in vitro to observation purposes alone and authorising access to assisted reproduction for couples in which the man carried a sexually transmissible viral disease .","He thus considered that ORG had to be regarded as CARDINAL of the prenatal monitoring techniques for ascertaining an embryo \u2019s state of health . Accordingly , prohibiting access to the technique , in the PERSON case , engaged the medical liability of the Health Director of ORG , who was the defendant in the proceedings , for failure to provide a health service .","The judge also found that since the mother had the right to abort an unhealthy f\u0153tus , it would be unreasonable not to guarantee her the right to know the state of health of the embryo by means of ORG .","The judge accordingly ordered the health director to carry out a ORG on the PERSON in vitro embryo in order to determine whether it was affected by muscular atrophy .","NORP The relevant parts of this Convention read as follows :","\u201c Tests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes , and subject to appropriate genetic counselling \u201d .","Paragraph CARDINAL of ORG to LAW provides :","Article CARDINAL as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child .","LAW , signed on DATE , has not been ratified by ORG .","NORP This directive has established a minimum quality and safety standard for the donation , procurement , testing , processing , preservation , storage and distribution of human tissues and cells , thus providing for harmonisation of national regulations . It also covers embryos transferred following PGD .","The ORG drew up this report with a view to providing information on preimplantation and prenatal diagnosis and the legal and ethical questions arising from their use in various NORP countries . The relevant extracts of this document are worded as follows :","[ a ) Context ]","\u201c In vitro fertilisation has been performed since DATE to help couples with fertility problems . Advances in reproductive medicine have opened new possibilities to avoid genetic disease by selective transfer of embryos . At DATE , preimplantation genetic diagnosis ( ORG ) was introduced as a possible alternative to prenatal genetic diagnosis ( PND ) for couples at risk of transmitting a particularly severe genetic defect , avoiding the difficult decision of whether or not to terminate a pregnancy . \u201d","[ b ) ORG cycle ]","\u201c A \u201c ORG cycle \u201d comprises the following steps : ovarian stimulation , oocyte retrieval , in vitro fertilisation of several mature oocytes , by introcytoplasmic sperm injection ( ORG ) , removal of CARDINAL or CARDINAL embryonic cells , genetic analysis of nuclear material from those cells and lastly selection and transfer of embryos not carrying the abnormal genetic characteristics in question . \u201d","[ c ) ORG uses ]","\u201c Use of ORG for medical indications has been offered to couples at high risk of transmitting a specific genetic disease of particular gravity ... and untreatable at the time of diagnosis . The risk was often identified on the basis of family history or the birth of affected children . Numerous monogenic indications currently meet these criteria justifying application of ORG , such as cystic fibrosis , PERSON Dystrophy , myotonic dystrophy , GPE \u2019s disease , spinal muscular atrophy in infants and haemophilia . \u201d","\u201c In those countries where preimplantation genetic diagnosis ( ORG ) is performed , it has become an established clinical method to analyse genetic characteristics of embryos created by in vitro fertilisation , and to obtain information which is used to select the embryos to be transferred . The use of ORG is mainly requested by couples carrying genetic conditions linked to severe disorder or premature death of their offspring who wish to avoid initiation of a pregnancy that may not come to term or that may entail the difficult question of terminating the pregnancy in case of a detected particularly severe genetic defect . \u201d","NORP This report shows that FAC patients from countries where the practice is prohibited go abroad for the diagnosis . NORP patients generally go to GPE , GPE , GPE or GPE .","The study also points to the inconsistency of legislative provisions which prohibit access to ORG yet authorise access to prenatal diagnosis and medical termination of pregnancy in order to avoid serious genetic diseases in children .","The relevant parts of the press release on this report read as follows :","\u201c Concerted action at ORG and national level is needed to tackle this problem , according to a report adopted by ORG DATE . The current ORG legislative framework is poorly suited to rare diseases and not well defined . Although rare diseases contribute greatly to morbidity and mortality , they are mostly invisible in health care information systems due to the lack of appropriate coding and classification systems . ... ORG adopted an amendment DATE which recommends that Member GPE encourage efforts to avoid rare diseases which are hereditary , through genetic counselling of carrier parents and , where appropriate and \u201c not contrary to existing national laws and always on a voluntary basis , through pre - implantation selection of healthy embryos \u201d . \u201d","The documents in the ORG \u2019s possession ( namely , the reports of ORG and ORG , paragraphs CARDINAL above ) show that ORG is banned , at least for the prevention of transmission of genetic diseases , in the following countries : GPE , GPE and GPE .","With regard to GPE , the ORG notes that on DATE ORG submitted for consultation a draft amendment to the current ban on ORG contained in LAW , to provide for regulated access . An amendment to LAW will be necessary in order to implement the change .","It also appears that ORG is authorised in the following countries : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE and GPE .","PGD is not the subject of specific regulations in the following countries : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . The ORG notes that CARDINAL of those countries ( GPE , GPE and GPE allow access to FAC in practice .","The ORG also observes that in the case of PERSON v. PERSON and Others ( [ DATE ] DATE ) ) , ORG established that the concept of the unborn child did not apply to embryos created through in vitro insemination , which accordingly did not benefit from the protection provided for in LAW . of LAW recognizing the right to life of the unborn child . In that case the applicant , who had already had a child following in vitro fertilisation , had applied to ORG for leave to have implanted CARDINAL other embryos created by the same fertilisation process , despite the lack of consent of her former partner from whom she had separated in the meantime .","This PERSON seeks to extend the use of ORG to precluding the risk of giving birth to a child who is a healthy carrier of a serious genetic disease ( access to this technique to avoid giving birth to children affected by genetic diseases being already provided for in NORP law ) . The relevant passages of the PERSON are set out below :","\u201c Requests for preimplantation testing have increased over time and this is now an option for couples who run a high risk of giving birth to a child with a serious hereditary disorder where mutation can be detected . ...","Future parents generally prefer preimplantation genetic diagnosis ( ORG ) to prenatal diagnosis . Indeed ... \u201c where the f\u0153tus is affected this will involve terminating the pregnancy from DATE , which is generally a source of mental distress for parents who have invested emotionally in the f\u0153tus as their future child ... Moreover , it is possible that several successive pregnancies have to be terminated before a healthy f\u0153tus can be obtained [ Source : ORG , opinion no . DATE on the use of ORG ]","Accordingly , the main advantage of preimplantation testing is that termination of pregnancy can be avoided . It has been observed that this constitutes the main motivation of the majority of couples seeking the treatment , these couples having often already endured the distressing experience of terminating a pregnancy on medical grounds . \u201d"],"violated_articles":["8"],"violated_paragraphs":["8-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-66638","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2004,"docname":"CASE OF ZWIAZEK NAUCZYCIELSTWA POLSKIEGO v. POLAND","importance":1,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"","text":["In DATE the administrative authorities handed over to the applicant association the management and use of a property that had been expropriated from a religious association by ORG in DATE . The decision concerning the transfer stipulated inter alia that , on termination of the use of the property , the applicant association would be entitled to recuperate the outlays incurred in connection with any construction work carried out on the buildings , less the normal costs of upkeep .","On DATE ORG ( \u201c the ORG \u201d ) , set up pursuant to the PERSON on relations between the ORG and ORG in GPE , returned the property to the religious association . ORG ordered the latter to reimburse the applicant association its outlay to the sum of MONEY ( PLZ ) ( MONEY ( ORG ) ) . That amount was based on a calculation prepared by experts . The applicant association challenged the amount and proposed its own calculation . However , ORG declared that it lacked jurisdiction to examine further claims . Its decision contained a clause to the effect that the decision did not affect the applicant association \u2019s right to make further claims relating to the DATE decision in accordance with the general provisions of law .","ORG The applicant association subsequently filed an action against ORG with ORG ( s\u0105d wojew\u00f3dzki ) , in which it applied for reimbursement of the outstanding outlays , relying on the text of the DATE decision in which the administrative authorities had established its right to those outlays . The applicant association also referred to ORG decision of DATE .","On DATE the court awarded the applicant association the sum of PLN CARDINAL,CARDINAL.CARDINAL by way of reimbursement of its outlays . The court referred to the part of the DATE decision which stated that the applicant association would be entitled to recover the outlays incurred in connection with any construction work carried out on the buildings , less the normal costs of upkeep .","Both parties to the proceedings appealed against this judgment .","On DATE ORG ( s\u0105d apelacyjny ) decided to submit to ORG the question whether the DATE PERSON on the relations between the ORG and ORG in GPE excluded the possibility of submitting to a civil court claims arising out of the use of a property that was returned to its original owner on the strength of a decision by a property commission .","On DATE ORG replied in the affirmative to ORG question .","ORG observed that the DATE PERSON was a statute which addressed , inter alia , an exceptional matter , namely the regularisation of property issues created by expropriations carried out in the past against ORG . It noted that the proceedings before a property commission involved the participation of all parties concerned . The decisions of those commissions were intended to settle all property claims arising out of past expropriations . Such claims DATE including claims concerning outlays incurred by a former user of a property \u2013 could be brought before a civil court only in those exceptional cases provided for in section CARDINAL of the DATE Law where a property commission was unable to restore a property to its original owner . ORG pointed out that , following ORG decision , ORG had ceased to own the property . Accordingly , there were no grounds on which a claim against the ORG could be brought before a civil court after DATE .","NORP The decision further read :","\u201c The clause contained in the decision of ORG to the effect that that decision \u2018 [ did ] not hinder the applicant association \u2019s right to make further possible claims relating to the DATE decision in accordance with the generally applicable provisions of law\u2019 can not be interpreted as allowing the plaintiff to vindicate its claims before a civil court . The application of generally applicable provisions of law [ concerning financial settlements between ORG as the owner of land and the users of land ] is out of the question in the present case . The clause in question can not be interpreted as an undertaking by ORG to satisfy any possible and unspecified claims of the plaintiff association . \u201d","The relevant section of the operative part of the decision read :","\u201c A decision by ORG , set up under the provisions of the PERSON on relations between the ORG and ORG in GPE , to the effect that the ownership of real property was returned to its original owner , a church entity , and which contains a ruling on the obligation to reimburse the outlays to the entity which has used such property hitherto , also rules out any possibility of bringing [ before a civil court ] any claims between the user and ORG . \u201d","On DATE ORG , having regard to ORG decision , quashed the judgment of ORG and dismissed the applicant association \u2019s action . Both parties to the proceedings appealed .","On DATE ORG dismissed both parties\u2019 cassation appeals . It noted that the applicant association \u2019s cassation appeal was in fact directed against ORG decision of DATE , whereas that decision was binding on all the courts dealing with the case .","The relevant part of the Law of CARDINAL DATE on relations between the ORG and ORG in GPE provides :","\u201c ( CARDINAL ) At the request of church entities , proceedings ( hereinafter called \u2018 regularisation proceedings\u2019 ) shall be instituted with regard to the restitution of the ownership of nationalised properties .","... \u201d","\u201c ( CARDINAL ) ORG proceedings shall be conducted by the property commission ... composed of representatives designated in equal numbers by ORG [ Urz\u0105d do PERSON ] and the ORG to the Conference of the Episcopate of GPE [ Sekretariat ORG ] .","( CARDINAL ) ORG from the applicant , all ORG and church entities concerned shall be participants in the regularisation proceedings . ...","...","( CARDINAL ) ORG examines cases in adjudicating groups , composed of members designated by ORG and the ORG to the Conference of the Episcopate of GPE , each of which shall nominate CARDINAL members , and representatives of the hierarchical bodies of the participants in the proceedings , namely CARDINAL representative of each body . \u201d","\u201c The regularisation may consist of :","NORP restitution of the ownership of properties ... to church entities ;","NORP the grant of an alternative property ...","the award of compensation , if neither of the solutions provided for DATE above is possible .","... \u201d","Under LAW , if a property commission is unable to reach a conclusion and give a ruling on a request for the restoration of property , the parties to the case may bring their claims to a civil court ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71113","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF KAZARTSEVA AND OTHERS v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings","judges":"Christos Rozakis","text":["The applicants were born in DATE , DATE and DATE respectively and live in GPE .","The applicants are in receipt of welfare payments for their children . In DATE they brought separate sets of civil proceedings against a local welfare authority , claiming arrears in those payments .","On DATE ORG of GPE awarded the first applicant MONEY ( RUR ) against the welfare authority . This judgment entered into force on DATE .","On DATE the writ of execution was issued and sent to the bailiffs .","On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of CARDINAL DATE and returned the writ of execution to the first applicant , as the debtor had insufficient funds .","On DATE the first applicant complained to ORG of GPE about the bailiffs\u2019 failure to execute the judgment in her favour .","By letter of DATE ORG of the GPE informed the first applicant that the judgment in question had not been enforced , as the defendant had insufficient assets , and that it was open to her again to send the writ of execution to the bailiffs\u2019 service .","On DATE the first applicant lodged a court complaint against the bailiffs for their failure to enforce the judgment in her favour .","On DATE ORG of GPE allowed the first applicant \u2019s complaint and ordered the bailiffs to recommence the enforcement proceedings .","On DATE the first applicant was paid the amount due pursuant to the writ of execution .","On DATE ORG of GPE awarded the second applicant PERSON against the welfare authority . This judgment entered into force on DATE .","On DATE the writ of execution was issued and sent to the bailiffs .","On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of CARDINAL DATE and returned the writ of execution to the second applicant , referring to the lack of the debtor \u2019s funds .","On DATE and DATE the second applicant again sent the writ of execution to the bailiffs\u2019 service .","On DATE the bailiffs returned the writ of execution to the second applicant , having stated that they had been unable to enforce the judgment in her favour , as the defendant refused to pay .","On DATE the judgment of CARDINAL DATE was paid in full .","On DATE ORG of GPE awarded the third applicant ORG CARDINAL,CARDINAL.CARDINAL . This judgment entered into force on DATE . On DATE the writ of execution was issued and sent to the bailiffs .","On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of CARDINAL DATE and returned the writ of execution to the third applicant by reference to the lack of the debtor \u2019s funds .","On DATE the third applicant requested the bailiffs\u2019 service and ORG of GPE to ensure the enforcement of the judgment in her favour . It is unclear whether any response was ever sent to that request .","On DATE the third applicant was paid the amount due pursuant to the writ of execution .","Section CARDINAL of LAW of DATE provides that a bailiff \u2019s order on the institution of enforcement proceedings must fix a time - limit for the defendant \u2019s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .","Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-138639","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2013,"docname":"STOWARZYSZENIE ''POZNA\u0143SKA MASA KRYTYCZNA'' v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;P\u00e4ivi Hirvel\u00e4;Paul Mahoney","text":["NORP The applicant , ORG , is an association registered in ORG . It is represented before the ORG by Mr A. GPE , a lawyer practising in GPE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76771","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"KORDIAN v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , has both NORP and NORP nationality and was born in DATE . He is currently detained in GPE pending extradition to GPE to face charges of murder in GPE . He was represented before the ORG by Mr M.Bilici and Mr PERSON , lawyers practising in GPE . ORG ( \u201c the Government \u201d ) did not designate an Agent for the purposes of the proceedings before the ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant fled from GPE ( \u201c GPE \u201d ) as he was suspected of murdering CARDINAL people and attempting to murder CARDINAL others , in GPE . On DATE ORG issued an arrest warrant for the applicant .","On DATE the applicant was arrested at GPE FAC , while in transit to GPE . He was detained on DATE by ORG , relying on the decision of DATE of ORG .","On DATE ORG sent a diplomatic note to the GPE authorities , informing them about the provisional detention of the applicant .","On DATE ORG in GPE submitted a diplomatic note to ORG , transmitting duly certified and authenticated documents in support of the extradition request concerning the applicant . They presented the affidavit , dated DATE , of Mr PERSON , ORG Deputy District Attorney , stating that his office was determined not to seek the death penalty against the applicant for the CARDINAL counts of murder . The undertaking given by Mr PERSON read as follows :","\u201c ORG would face the maximum penalty of death or life imprisonment without the possibility of parole if he is convicted of CARDINAL crime of murder in the first or second degree . Having given consideration to the facts and circumstances of the murders with which ORG is charged , this office has determined not to seek the death penalty against the defendant . Accordingly the maximum possible punishment that could be imposed on the defendant in this case would be life imprisonment without the possibility of parole , plus monetary fines and restitution . This office is aware that this election is irrevocably binding upon us should the petition for extradition be granted in this case such that we could not later elect to pursue the death penalty against ORG for this offence . \u201d","The affidavit was sworn before the GPE Superior Court Judge and certified by the Associate Director at ORG in ORG on DATE . Furthermore , on DATE the affidavit and its certification were sealed by the Attorney General of ORG and ultimately by the Secretary of ORG .","On DATE , following the questioning of the applicant and the examination of the relevant documents , the ORG prolonged the applicant \u2019s detention on remand , as it considered that there was no clear request from the GPE authorities to extradite the applicant . On DATE the applicant \u2019s lawyer filed an objection against the remand decision . His request was dismissed by ORG .","On DATE ORG informed ORG that , the contrary to what the court had noted in its decision of DATE , there was a clear extradition request from the GPE authorities concerning the applicant , in accordance with the relevant international agreement between the CARDINAL countries . On DATE , following ORG request , ORG reconsidered the applicant \u2019s case and rectified its initial decision . It decided to detain the applicant until his extradition .","On DATE the applicant \u2019s representative requested the ORG to indicate to ORG , under LAW , the suspension of his client \u2019s extradition .","On DATE the President of the ORG to which the case had been allocated decided to indicate to the respondent Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to extradite the applicant to GPE until further notice , and invited them to submit written observations on the admissibility and merits of the case .","Following this Rule CARDINAL indication , on MONEY DATE ORG requested the suspension of the extradition proceedings .","On DATE and DATE , the ORG received the observations of the ORG and the applicant , respectively .","Extradition between GPE and GPE is governed by LAW on extradition and mutual assistance in criminal matters between GPE and GPE \u201d , signed at GPE on DATE . It entered into force CARDINAL DATE . The relevant provisions of the LAW provide as follows :","Article CARDINAL","\u201c Contents of the request :","A request relating to a person being prosecuted or who is charged with an offence , and who has yet to be convicted , shall be accompanied by the following :","( a ) A warrant of arrest issued by a judge or other competent judicial officer ;","( b ) A statement of the facts of the case ;","( c ) Such evidence as , according to the laws of ORG , would justify arrest and committal for trial of the person sought if the offence had been committed in the territory of ORG ;","( d ) Evidence proving that the person sought is the person to whom the warrant of arrest refers , including information , if available , on nationality ; and","( e ) The text of the applicable laws of ORG , including the law defining the offence , the law prescribing the punishment for the offence , and the law relating to the limitation of legal proceedings or the enforcement of the penalty for the offence . ... \u201d","Article CARDINAL","\u201c Provisional arrest or detention :","( CARDINAL ) In cases of urgency , either ORG may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to ORG through diplomatic channels . The request for provisional arrest or detention may be made either through diplomatic channels or directly between ORG of GPE and ORG of GPE .","( CARDINAL ) The application for provisional arrest or detention shall state that a warrant of arrest or a judgment exists and that it is intended to make a request for extradition . It shall also state the offence for which extradition will be requested and when and where such offence was committed and shall give all available information concerning the description of the person sought and nationality . ...","( CARDINAL ) The Requested Party shall make the necessary arrangements for the provisional arrest or detention and shall notify the other ORG when the person sought has been arrested or detained specifying that the person sought will be released if the documents mentioned in LAW are not submitted within DATE from the date of arrest or detention .","( CARDINAL ) If the documents for extradition are submitted to the executive authority of ORG within DATE time limit , the arrest or detention shall continue until a decision on the request for extradition has been reached by the competent authorities of ORG . If the request for extradition is granted , the arrest or detention may be extended to the extent permitted by the laws of ORG . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4550","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":1999,"docname":"YAGIZ v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE , and living in GPE .","He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .","The applicant came to GPE in DATE without having a valid visa . In DATE GPE ORG ( Bezirkshauptmannschaft ) found him guilty of illegal entry and imposed a fine of CARDINAL NORP Schillings ( ORG ) on him . Subsequently , the applicant obtained a residence permit which was periodically renewed . In DATE his wife , who is also a NORP national , as well as their son , born in DATE , and their daughter , born in DATE , were allowed to join him under a family reunion scheme . The applicant found employment as a worker . In DATE GPE ORG found him guilty of drunken driving and imposed a fine of ORG CARDINAL on him . In DATE the same authority found him guilty of refusing to undergo a breathalyser test when being reasonably suspected of drunken driving and imposed a fine of ATS CARDINAL , CARDINAL on him .","On DATE ORG issued a residence ban valid for DATE against the applicant . Referring to S. CARDINAL \u00a7 CARDINAL and \u00a7 CARDINAL ( CARDINAL ) of the DATE LAW ( PERSON ) , according to which a residence ban has to be issued against an alien , inter alia , if he has been convicted more than once of a serious administrative offence , it found that the applicant \u2019s convictions for drunken driving in DATE and refusing to undergo a breathalyser test in DATE constituted such serious offences . Although the residence ban constituted an interference with the applicant \u2019s private and family life , this measure was necessary , as there were specific reasons to fear that his further stay would be a danger for public security .","On DATE the applicant , represented by counsel , filed an appeal . He argued that the residence ban against him was disproportionate , as the offences committed by him were not of a serious nature . Moreover , it forced him to separate from his family who were dependent on his income . Further , the applicant argued that GPE had become a member of ORG on DATE and was therefore bound by ORG between ORG and GPE . According to this Agreement and the decisions on its implementation , NORP workers who had been legally employed in a member ORG for DATE had a right of free access to the employment market and also to a residence permit . Moreover , measures of public security against such workers could not be based solely on criminal convictions but had to be justified by the specific conduct of the person concerned .","On DATE ORG ) dismissed the applicant \u2019s appeal . It confirmed that the applicant \u2019s convictions in DATE and DATE , relating to drunken driving and refusing a breathalyser test , constituted serious administrative offences within the meaning of S. CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW . Referring to LAW of the said LAW which requires the authority to weigh the negative consequences the residence ban would have for the alien and his family against the public interest in issuing a residence ban , it found in particular that the applicant had only lived in GPE since DATE and his family since DATE . Moreover , his family could leave GPE with him . Having regard to the conduct of the applicant and the particular risks it entailed for life and limb as well as the property of others , he had to be considered as a danger for public safety . In sum , the interest in issuing the residence ban outweighed the interests of the applicant and his family in staying in GPE . Finally , ORG between ORG and GPE , relied on by the applicant , did not prohibit the issuing of a residence ban .","On DATE the applicant filed a complaint with ORG ) . He repeated the arguments he had already forwarded in his appeal to ORG .","On DATE the ORG refused to entertain the applicant \u2019s complaint and referred the case to ORG ( Verwaltungsgerichtshof ) .","On DATE ORG dismissed the applicant \u2019s complaint . It found that the contested residence ban was necessary within the meaning of LAW of LAW in the interests of public safety and the prevention of crime . Referring on the one hand to the gravity of the offences committed by the applicant and on the other hand to his short stay in GPE , the ORG confirmed that ORG had duly weighed the interests involved ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75662","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2006,"docname":"SRPSKA PRAVOSLAVNA CRKVENA OPSTINA NA RIJECI v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , the PERSON ORG ( ORG na ORG ) , is a religious community with its seat in PERSON . It is represented before the Court by PERSON , a lawyer practising in PERSON . The respondent Government are represented by their Agents , first Ms L. PERSON and subsequently PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant owns in PERSON a flat of a surface of QUANTITY . A certain GPE had a specially protected tenancy of the flat .","On DATE ORG enacted LAW , which regulates the conditions of leasing privately - owned flats , including those previously let under a specially protected tenancy .","Under LAW , on DATE the applicant let the flat to GPE","On DATE the applicant terminated the lease because it intended to lodge a priest in the flat .","Since \u017d.J refused to vacate the flat , the applicant instituted proceedings in ORG ( PERSON ORG ) seeking eviction of GPE The applicant based its claim on LAW claiming that it needed the flat for its own use , namely to house its priest . It also claimed that it could provide for GPE another flat also situated in GPE , but a smaller CARDINAL , of a surface of QUANTITY .","On DATE ORG dismissed the applicant \u2019s action , finding that it did not need the flat in question for itself but only to install its priest . The court found that the priest could have lived in any other flat including the one that the applicant was offering to GPE","The applicant appealed against the first - instance judgment arguing that installing its priest in the flat at issue amounted to the use of the flat by the applicant itself .","On DATE ORG ( \u017dupanijski sud u ORG ) dismissed the applicant \u2019s appeal . It found that the applicant did not satisfy the conditions of CARDINAL of LAW because it was a legal entity rather than a natural person . The court stated that the question whether there existed a need for the flat at issue on behalf of the applicant , the reasons for eviction of GPE , and the fact that the applicant had offered PERSON another flat , were irrelevant in the present case .","The applicant subsequently filed a constitutional complaint claiming , inter alia , that its property rights were violated because it had no possibility to terminate the lease on the flat that it owned .","On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant \u2019s complaint . It found that the lower courts\u2019 decisions were based on law , and that the relevant provisions of LAW providing for termination of a lease for personal reasons referred only to natural persons but not to legal entities . It stated that the applicant \u2019s inability to terminate the lease did not violate its property rights .","Meanwhile , GPE died , but his wife , PERSON , continues to live in the flat .","LAW ( Zakon o najmu stanova , ORG no . CARDINAL\/CARDINAL of DATE ) ( \u201c the LAW \u201d ) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats . It recognises a special category of tenants , namely those who were previously holders of specially protected tenancies on privately - owned flats . Such a category is , according to the LAW , subject to a number of protections , for instance , an obligation for the owners to contract a lease for an unlimited period of time ; payment of a so - called protected rent , the amount of which is to be prescribed by the ORG , as well as limited reasons for the termination of the lease . LAW abolished the specially protected tenancy as such .","Pursuant to LAW a landlord may terminate the lease of a protected tenant in the following cases :","if the tenant does not pay the rent or charges ;","if the tenant sublets the flat or part of it , without permission from the landlord ;","if the tenant or other tenants in the flat disturb other tenants in the building ;","if another person , not figuring in the lease contract , lives in the flat longer than DATE , without permission from the landlord , except where that person is a spouse , child or parent of the tenant or of the other legal tenants in the flat , or a dependant of the tenant or a person on whom the tenant is dependent ;","if the tenant or other legal tenants do not use the flat for living , but for other purposes ;","if the landlord does not have another flat and is entitled to social assistance benefits or is older than DATE .","Under section CARDINAL ( CARDINAL ) of LAW , the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children , parents or dependants therein ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5508","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2000,"docname":"KAJANEN AND TUOMAALA v. FINLAND","importance":3,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicants are NORP nationals , born in DATE and DATE respectively and living in GPE and GPE .","A.","The facts of the case , as submitted by the applicants , may be summarised as follows .","The applicants are Justices at ORG of GPE . Between the applicants and the representative of their employer a disagreement arose about the amount of their salary . According to the applicants , they were entitled to receive salary corresponding to a higher salary grade than that actually applied . The Chief Secretary of ORG ( hovioikeuden kansliap\u00e4\u00e4llikk\u00f6 , hovr\u00e4ttens kanslichef ) made a decision that the applicants were not entitled to the higher salary grade . The applicants asked for a notice of appeal , but did not receive CARDINAL .","The applicants nonetheless appealed to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) , which on DATE stated that as the question concerned the interpretation of a collective bargaining contract on civil ORG salaries , the court was not competent to try the case .","The applicants then took legal action against the ORG in ORG ( ty\u00f6tuomioistuin , arbetsdomstolen ) . On DATE , the court found that , according to the LAW on ORG ( laki ty\u00f6tuomioistuimesta , lag om arbetsdomstolen ) , a civil servant bound by a collective bargaining contract on civil PERSON salaries was allowed to take legal action before ORG . However , since the applicants were not members of a trade union and therefore not bound by the contract , they could not take legal action before ORG .","B. Relevant domestic law and practice","According to Section DATE , LAW , of LAW ( Suomen Hallitusmuoto , ORG ) , as in force at the relevant time , everyone has the freedom of association . Freedom of association entails the right to form an association without a permit , to be a member or not to be a member of an association and to participate in the activities of an association . The freedom to form trade unions and to organise in order to look after other interests is likewise guaranteed .","According to LAW and CARDINAL , everyone is equal before the law . No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person .","Section CARDINAL guarantees to everyone the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority , as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice .","In its decision no . CARDINAL rendered on DATE ORG held that the above mentioned LAW , inter alia , guarantees also to a judge not belonging to a trade union the right to have a dispute concerning his salary decided by a court . As the appellants in the case in question could not have their case decided by ORG , ORG examined their claim but rejected it on the merits .","As from DATE LAW is replaced by LAW NORP perustuslaki , PERSON grundlag ) , which contains provisions identical to those mentioned above ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60492","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2002,"docname":"CASE OF WILLIAM FAULKNER v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant , who was born in DATE , was released from detention in DATE . Prior to that he was detained at FAC , County GPE , GPE , on temporary transfer from a NORP prison while serving a DATE sentence for a drug offence .","On DATE a sealed letter sent by him to the NORP Minister of ORG was returned to him by the prison authorities . Following the ORG \u2019s admissibility decision , the ORG informed the ORG that ORG was unable to explain why the letter had not been sent , since there was nothing untoward in its content .","The relevant domestic legislation is the Prison and Young Offenders Centre Rules ( GPE ) DATE ( \u201c the Rules \u201d ) , which came into effect on DATE .","Rule CARDINAL(CARDINAL ) allows the Secretary of ORG to impose restrictions on communications between a prisoner and others , either generally or in a particular case , with a view to securing discipline and good order or the prevention of crime or in the interests of any persons . Under Rule CARDINAL(CARDINAL ) , except as provided by the ORG , every letter or communication to or from a prisoner may be read or examined by the Governor who may , at his discretion , stop any such letter on the grounds that it is not permitted under paragraph ( CARDINAL ) or that it may undermine the prison \u2019s security ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71303","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF SHOFMAN v. RUSSIA","importance":2,"conclusion":"Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in Gross - Rohrheim ( GPE ) .","On DATE the applicant registered his marriage with PERSON in GPE . After the marriage they moved to GPE .","On DATE , during her stay at her GPE home in GPE , PERSON gave birth to a son to whom she gave her surname , despite objections from the applicant . Shortly thereafter the birth was registered ; the applicant was named as the child \u2019s father in the register .","In DATE PERSON and her son returned to GPE . The applicant believed that he was the boy \u2019s father and treated him as his own .","On DATE the applicant moved to GPE . Until DATE he waited for PERSON and the son to join him there . However , in a letter of DATE , PERSON informed him that she had no plans to continue their marriage and would be applying for maintenance for the child . At about that time the applicant \u2019s relatives in GPE advised him that he was not the boy \u2019s father .","On DATE the applicant petitioned for divorce and brought an action contesting paternity . On DATE the divorce was granted .","On DATE the ORG of GPE delivered judgment in the paternity action . It noted that genetic ( DNA ) tests of DATE and CARDINAL June CARDINAL demonstrated that the applicant could not be the boy \u2019s father . Although PERSON maintained that the applicant was the father , in the absence of any doubts as to the accuracy of the tests , the court established that the applicant was not the father of her son .","ORG ruled , however , that the case was governed by ORG and LAW of DATE because the child had been born before DATE , that is to say before the new LAW of the LOC came into effect . ORG and LAW set a DATE limitation period for an action contesting paternity , the starting point of which was calculated from the date the putative father was informed that he had been registered as the father . As the applicant had not contested paternity when the child was born and had only applied to the courts in DATE , after the expiry of the time - limit , his action was held to be time - barred . The fact that a new Family Code had been introduced which did not lay down a limitation period for paternity actions was irrelevant because it was only applicable to family - law disputes arising after DATE .","On DATE , on an appeal by the applicant , ORG upheld the judgment of DATE .","On DATE and DATE ORG and ORG of GPE , respectively , refused requests by the applicant for supervisory review .","On DATE the Justice of the Peace of the Third Court Circuit of the Zheleznodorozhniy District of GPE granted PERSON \u2019s claim for maintenance and made a charging order over the applicant \u2019s interest in a flat .","On DATE the ORG upheld the maintenance order .","The RSFSR Marriage and Family Code of DATE ( PERSON \u0420\u0421\u0424\u0421\u0420 \u043e \u0431\u0440\u0430\u043a\u0435 \u0438 \u0441\u0435\u043c\u044c\u0435 ) provided that a person entered in the birth register as the father of a child could contest the entry within DATE of the date he became or should have become aware that the entry had been made ( Article CARDINAL ) .","The Family Code of GPE of DATE ( PERSON \u043a\u043e\u0434\u0435\u043a\u0441 PERSON , in force from DATE ) provides that a person entered in the birth register as the father of a child may contest the entry by means of judicial proceedings ( LAW ) . It does not set any time - limit for bringing an action .","Resolution no . CARDINAL of ORG of GPE of DATE \u201c On application by courts of LAW of GPE to the cases concerning paternity and maintenance \u201d established that , in respect of children born before DATE , ORG and LAW was applicable and , accordingly , the time - limit for contesting paternity was DATE from the date the person became or should have become aware of his registration as the child \u2019s parent ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78357","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2006,"docname":"GOLUBEV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","In DATE the applicant , a police officer at that time , was charged with bribe taking . He was suspected in providing \u201c protection \u201d to a group of black market dealers in return for regular payments . On DATE he was arrested and , since he was a former policeman , placed in a special detention facility for former law enforcement officials .","On DATE he was transferred for DATE to a \u201c common \u201d cell where ordinary criminal suspects were detained . In his words , the investigator placed him in that cell in order to put pressure on him .","On DATE the applicant complained about this fact to the prosecution authorities . On DATE the local prosecutor informed the applicant that the person responsible for placing him in that cell was reprimanded . There is no information on any further development regarding this complaint .","On DATE the applicant was convicted of bribe taking by ORG . He was sentenced to DATE imprisonment in a colony of the strict regime .","The applicant indicates that he was unable to study the record of the trial hearings . He indicates that he signed a waiver where he renounced his right to examine the record . He claims , however , that he did so under the pressure of the judge .","The applicant and his lawyers appealed . They challenged the findings of the first instance court as to the facts of the case and complained of misinterpretation of the domestic law and various irregularities in the proceedings during the investigation and before the first instance court . The defence indicated inter alia that in the course of the pre - trial detention the applicant had been placed in a common cell , in breach of the relevant provisions of the domestic law . However , the brief of appeal did not mention that the applicant had been unable to study the trial record . The applicant did not request his personal presence at the hearing before the court of appeal .","On DATE the applicant \u2019s conviction was upheld by ORG . The applicant was not present at the court of appeal \u2019s hearing and remained in the detention centre . However , his CARDINAL lawyers were in the courtroom and during the hearing the applicant was able to communicate with the judges through a video communication system , which allowed him to see and hear what happened in the court room , and put questions to the participants of the hearing . ORG , basing on the materials of the case - file and the parties\u2019 pleadings , upheld the finding of the lower court in full . It did not detect any serious irregularity in the proceedings before the trial court which would require the review of the case .","After conviction the applicant was sent to serve his sentence in a correctional colony in GPE .","In DATE , due to the changes in LAW , the applicant \u2019s sentence was reduced to DATE and DATE , and he was transferred to a colony with a milder regime .","LAW of DATE , as in force at the relevant time , provided that the criminal defendant should indicate in his points of appeal whether or not he wanted to participate personally in the hearing before the court of appeal . LAW provided that the court of appeal might choose whether or not the applicant should participate in the hearings . However , by Ruling of DATE no . CARDINAL ORG invalidated that provision as anticonstitutional . ORG found that the criminal defendant should always have the possibility to participate in the proceedings before the court of appeal . However , ORG did not specify whether personal participation was needed , or participation through a video communication system was sufficient .","The new Code of Criminal Proceedings , as in force from DATE , provides that the criminal defendant may choose whether or not he wants to participate in the proceedings ( LAW ) . However , the choice between personal presence and participation via the video communication system belongs to the court ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60723","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":2002,"docname":"CASE OF YOUSEF v. THE NETHERLANDS","importance":1,"conclusion":"No violation of Art. 8","judges":"Gaukur J\u00f6rundsson","text":["The applicant , born in DATE , was an NORP national at the time of the events complained of . He has since obtained GPE nationality and , as far as the ORG is aware , is at present living in the GPE .","The applicant first arrived in the GPE in DATE . DATE he met PERSON , a GPE national . On DATE a daughter , PERSON , was born to the couple , who were not married and were not living together . By a decision of CARDINAL DATE , ORG judge ( kantonrechter ) appointed the applicant as the auxiliary guardian ( toeziend voogd ) of PERSON as her mother ipso jure being her guardian ( voogdes ) .","At some time in or around DATE , the applicant moved in with PERSON and their daughter in the house of PERSON \u2019s mother . They lived together for DATE .","NORP The applicant went to LOC in DATE and stayed there for DATE . During this time , contact between the applicant on the one hand and PERSON and PERSON on the other was limited to the exchange of some letters .","The applicant returned to the GPE in DATE . The applicant states that he saw DATE until DATE . Despite the applicant \u2019s repeated requests , PERSON refused to give him permission to recognise ( erkennen ) S.","PERSON contracted a terminal illness . On DATE she made a will in which she expressed the wish that , after her death , her brother PERSON should have guardianship of her daughter , PERSON In DATE the applicant instigated summary injunction proceedings ( kort geding ) before the President of ORG ( arrondissementsrechtbank ) , seeking an order for PERSON to give him permission to recognise PERSON On DATE the President gave a judgment refusing to grant the injunction sought . The President considered that PERSON had not abused her power to withhold permission to the applicant \u2019s recognition of PERSON , since the change of surname which such recognition would entail for PERSON could not be deemed to be in her best interests . However , the President added by way of obiter dictum that it was important for both the applicant and his daughter that contacts between them be continued . The President therefore thought it desirable that S. spend DATE with her father .","In a further , supplementary will dated DATE PERSON stated that she had agreed with another of her brothers , PERSON , that after her death PERSON would be placed with his family . PERSON further stated that it was her express wish that the applicant should not visit her daughter as this would seriously disrupt the life of the family in which PERSON was to be raised . PERSON also expressed the opinion that it would be contrary to the best interests of her daughter if the applicant were to obtain access to S. According to PERSON , the applicant had no fixed abode , no residence permit , no employment and no financial means ; he would only use the care for his daughter as a pretext for obtaining a residence permit in the GPE and thus be entitled to social - security benefits . Prior to her illness , the applicant had not shown much interest in LOC , nor had he contributed financially to S. \u2019s upbringing .","PERSON died on DATE . In conformity with her wishes , her brother , PERSON , was granted guardianship of PERSON and she was placed in PERSON PERSON \u2019s family . The applicant saw PERSON once DATE under an arrangement with the NORP family .","Following PERSON death , the applicant requested ORG , Deaths and Marriages ( ambtenaar van de burgerlijke stand \u2013 \u201c the Deventer Registrar \u201d ) to draw up a deed of recognition and to enter this into the register of births . By a letter of DATE , ORG notified the applicant of his refusal to do so , being of the opinion that NORP law , which did not provide for the recognition of children , applied .","On DATE the applicant lodged a request pursuant to LAW ) with ORG asking that ORG be ordered to draw up the deed of recognition and enter it in the appropriate registers . Although ORG agreed with the applicant that GPE law applied , it nevertheless refused to grant the request on DATE . It considered that , when alive , PERSON had always withheld her permission for the applicant \u2019s recognition of PERSON ; it had not been established that there was family life within the meaning of LAW ; following Ms R. \u2019s death somebody other than the applicant had been granted the guardianship of PERSON ; and PERSON was , moreover , not living with the applicant .","Meanwhile , in DATE , the applicant requested ORG to grant him access to LOC every other weekend , as had been recommended by the President of ORG . He submitted that Mr H.R. was frustrating his right to regular and undisturbed access to his daughter . At the hearing in those proceedings on DATE , Mr ORG and PERSON stated that there was not and never had been family life between the applicant and PERSON ; that the applicant only wanted regular access to S. in order to obtain a residence permit ; that PERSON was settling into her new family ; that PERSON called Mr PERSON \u201c Daddy \u201d ; that PERSON did not enjoy the applicant \u2019s visits ; and that she did not trust him . In reply , the applicant stated that PERSON was very important to him ; that the late PERSON had been heavily influenced by her overbearing mother ; that unbeknownst to PERSON mother the applicant had continued the relationship with PERSON after they had stopped living together ; and that it was PERSON mother who had told PERSON not to call the applicant \u201c Daddy \u201d .","At the conclusion of the hearing ORG , being of the opinion that there was \u201c family life \u201d between the applicant and PERSON , decided provisionally that the contacts between the applicant and PERSON were to continue at the offices of ORG ( PERSON ) , and that it would take a decision based on a report to be drawn up by that organisation .","NORP The applicant lodged an appeal with ORG ( gerechtshof ) of GPE against the decision of ORG not to order ORG to draw up a deed of recognition . He argued that PERSON refusal to consent to his recognition of S. no longer had any effect after her death . That being so , there was no call for the courts to go into the question whether or not there existed family life between the applicant and S. Should the Court of Appeal nevertheless be of the opinion that it ought to examine this question and that a balancing exercise as required by LAW was called for , the applicant submitted that he was the natural father of PERSON ; that not only had there been a meaningful relationship between PERSON and himself , they had also lived together as a family for some time and they had contributed equally to the care and upbringing of PERSON The applicant also referred to his request lodged with ORG to have his rights of access to S. increased . While he conceded that during the mother \u2019s DATE an unwanted recognition might have constituted a disproportionate interference with her private and family life , after her death only the interests of the applicant and the child remained to be balanced against each other , and there were no weighty interests on the side of the child which militated against recognition .","The applicant lastly submitted that it had been his desire from the outset to obtain guardianship ( voogdij ) of S. after her mother \u2019s death and that PERSON should live with him . In order for a request for a change of guardianship to stand any chance of success , the applicant ought first to have recognised his daughter . The applicant urged ORG to deal with his request speedily as he was being threatened with expulsion , the Deputy Minister of Justice ( ORG ) not accepting that there was family life between the applicant and PERSON would serve to confirm officially the natural ties between father and daughter .","At the hearing before ORG on DATE , the applicant submitted , inter alia , that he had always done everything possible to ensure PERSON \u2019s happiness but that PERSON family had never accepted him . However , the relationship between PERSON and him was very strong .","NORP In a decision of CARDINAL DATE ORG dismissed the applicant \u2019s appeal . It held that the explicit refusal of PERSON to consent to the applicant \u2019s recognition of PERSON had not ceased to have effect after her death , as she had stated in her will that she maintained the refusal which she had considered to be in the best interests of S.","The Court of Appeal further found that , even assuming that family life had at CARDINAL time existed between the applicant and PERSON , that tie had been broken by subsequent events . The contacts which had taken place between the applicant on the one hand and PERSON and PERSON on the other had been so sparse and irregular , and so devoid of mutual commitment , that they could no longer be regarded as constituting family life . ORG went on to hold , however , that even if it had to be assumed that family life still existed , the interests of the child should be its foremost consideration . These interests would be best served by allowing PERSON to grow up in the family where she had been placed after the death of her mother and in accordance with her mother \u2019s explicit last wishes , and where she received the care she needed . The recognition intended by the applicant was aimed at bringing about a change in this situation and , for that reason , could not be held to be in the best interests of ORG found that this was all the less so as the applicant had never had the care of S. , had not previously indicated that he actually wished to care for her and , in addition , had not substantiated his claim that he would be able to discharge his duty of care in a responsible manner . Moreover , recognition would mean that S. would automatically take the applicant \u2019s surname , whereas she now had the same surname as the other members of the family in which she was growing up .","The applicant lodged an appeal on points of law with ORG ( PERSON ) , arguing , inter alia , that ORG had been wrong to hold that the refusal of PERSON to consent to the applicant \u2019s recognition of PERSON could still have effect after her death . Moreover , the relevant legal provisions did not require that , in order for the natural father to recognise a child following the death of the mother , there should be family life between them . In any event , contrary to what ORG had found , there was family life between the applicant and PERSON , so that ORG finding on this point was incomprehensible .","According to the applicant , ORG had also been wrong to hold that it would be in the best interests of S. to be raised in PERSON family . The legislature had , on the contrary , deemed that recognition by the natural father would serve a child \u2019s interests in a case such as the present where the mother had died . Moreover , recognition as such would not entail any changes in the child \u2019s living arrangements . Such changes could only be brought about if the applicant were to file a request for a change in the guardianship arrangements , in which event the interests of the child could be assessed at that time . Finally , the applicant submitted that ORG could not have properly assessed what was in the best interests of S. without having sought the opinion of ORG .","By a decision of CARDINAL DATE , ORG dismissed the appeal on points of law . It agreed with the applicant that PERSON refusal to consent to his recognition of DATE to which she had been entitled , such a right having been provided by law in order to protect the interests of mothers in her position \u2013 was no longer valid after her death . ORG had given additional reasons for its decision not to order ORG to draw up a deed of recognition , even assuming that family life did exist . This reasoning , in the view of ORG , was sufficient in itself to support ORG decision . In this regard ORG pointed out that , as a result of a valid recognition , legally recognised family ties ( familierechtelijke betrekkingen ) would be created between the child and the person who had recognised the child . This far - reaching consequence meant that recognition could affect interests of the child which were protected by LAW . Although recognition could serve these interests , it could similarly harm them . LAW had thus required ORG to balance the applicant \u2019s interest in having the relationship between himself and PERSON confirmed as a legally recognised family tie , assuming that this relationship constituted family life , against the interest of the child in continuing to live with the legal family in which she had lived ever since her mother had died , and to keep that family \u2019s surname . ORG found that ORG had adequately acquitted itself of this task .","Given that the applicant had never made a secret of the fact that he intended to obtain guardianship of LOC and to have her live with him , ORG had been correct to take into account S. \u2019s interest in not having her residence with PERSON family threatened by the outcome of further legal proceedings . Finally , the legal provisions in force had not required ORG to seek advice from ORG , and it had been up to ORG itself to determine whether or not it needed such advice .","During and following the proceedings before ORG , a change in PERSON \u2019s living arrangements occurred ; ORG was unable to take these new circumstances into account as , pursuant to LAW ) , it was bound by the facts as established by ORG and contained in the case file .","In DATE returned to live with her maternal grandmother . According to ORG , CARDINAL of the reasons for this was the distress caused to the family of her uncle , PERSON , by the applicant \u2019s seeking access to S. On DATE ORG requested the juvenile judge ( kinderrechter ) of ORG to issue a supervision order ( ondertoezichtstelling ) in respect of S. During a hearing on DATE , the juvenile judge stated that for the time being it would be best if PERSON stayed with her grandmother , but that there should be contact between the applicant and PERSON and that the applicant \u2019s future role in the life of PERSON should be further examined . On DATE the juvenile judge issued a supervision order and appointed a family guardian ( gezinsvoogd ) .","On DATE ORG refused to comply with a new request from the applicant to draw up a deed of recognition and enter it in the register of births . The applicant again turned to ORG , submitting that the circumstances leading to the rejection of his first request had changed as PERSON was no longer living with her uncle . He further stated that he was concerned about his daughter \u2019s well - being in view of the advanced age of the grandmother and the latter \u2019s overbearing character . Moreover , the applicant submitted that he was capable of looking after PERSON himself .","ORG rejected the applicant \u2019s request on DATE . It considered that the change in LOC \u2019s living arrangements had been brought about by the juvenile judge and could not be held to be to the detriment of S. Moreover , the persons responsible for the care and upbringing of S. were in receipt of assistance as a result of the supervision order . The change in the living arrangements could therefore not , as such , alter the result in the balancing exercise that had been carried out by ORG . Noting that the applicant was still attempting to obtain guardianship of PERSON , ORG finally considered that the recognition of PERSON by the applicant would not be in her best interests .","The applicant did not file an appeal against ORG decision of CARDINAL DATE .","Following the entry into force of the Law of DATE , which abolished the institution of auxiliary guardianship , the applicant is no longer S. \u2019s auxiliary guardian .","The applicant , who since the events complained of has taken GPE nationality , has married another woman by whom he has a son .","A child born out of wedlock had the status of the natural child of its mother . It became the natural child of its father after having been recognised by DATE the \u201c father \u201d , for the purposes of this provision , being the man who recognised the child , whether or not he was the biological father ( Article CARDINAL:CARDINAL of LAW ) .","A child born out of wedlock automatically had legally recognised family ties with its mother and her relatives . ORG by the father entailed the creation of a legally recognised family tie between him and the child , as well as between the child and the father \u2019s relatives ( Article CARDINAL of LAW ) . At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child , and the mother \u2019s surname if not ( LAW of LAW ) .","Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by ORG , Deaths and Marriages or a notary ( LAW ) . A deed of recognition drawn up by the registrar was entered in the register of births ( LAW ) . At the request of an interested party , the regional court could order that a deed be entered in the appropriate registers ( LAW ) .","A recognition was invalid if it was done during the mother \u2019s lifetime without her prior consent in writing ( LAW ) of LAW ) . However , in view of the right of the father and the child to respect for their \u201c family life \u201d , as guaranteed by LAW , ORG construed this provision in such a way that the effective right of veto which the provision gave the mother could be overridden if she abused it ( see , inter alia , ORG decision of DATE , PERSON , no . CARDINAL ) .","The man who had recognised the child could apply to the district court for guardianship of the child . If a person other than the mother had guardianship , such an application could only be refused if there was reason to fear that the child \u2019s interests would be neglected . However , if the mother had guardianship , the application would only be allowed if the district court considered that the child \u2019s interests would thus be best served ( Article ORG of LAW ) .","In proceedings concerning , inter alia , parental authority , guardianship and access , the competent court could obtain advice from ORG if it felt that it needed such advice in order to make a proper assessment of the best interests of the child ( LAW ) .","On DATE a new LAW came into force . It is still provided that , for a man to recognise a child who is not yet DATE as his , the prior written permission of the mother is required ( LAW ) ) . If the mother \u2019s permission is lacking , it may be replaced by the permission of the regional court ( LAW ) . However , the man who seeks such permission must be the child \u2019s biological father ; in addition , recognition must not be detrimental to the mother \u2019s relationship with the child or to the child \u2019s own interests ( ibid . ) . The explanatory memorandum on the bill which eventually led to the enactment of this provision makes it clear that the permission of the regional court is required in all situations where the mother \u2019s permission can not be obtained , including in the event of her death ( GPE ( Parliamentary Documents ) II , DATE session , CARDINAL no . CARDINAL , p. CARDINAL ) . In addition , the child \u2019s written permission is required if he or she has reached DATE ( d ) ) .","At the same time LAW was introduced into LAW , pursuant to which a child may request the regional court to issue a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap ) in order to have a legal tie established between him or her and the biological father . No time - limit applies for lodging such a request .","The status of the Convention in GPE domestic law is regulated by the following provisions of LAW :","\u201c Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published . \u201d","\u201c Statutory regulations in force within the GPE shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions . \u201d","An example of a decision of ORG in which a provision of domestic law was considered to be incompatible with a provision of the LAW , and for that reason held to be overridden by the latter , is that of DATE , cited in paragraph CARDINAL above ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-87795","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2008,"docname":"GUNEY v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["The applicant , Mr PERSON , is a NORP citizen who was born in DATE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr C .- PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","ORG made a tax audit of a restaurant business , owned by a holding company owned , in its turn , by the applicant and CARDINAL other persons . Following the audit ORG , by decisions of DATE , raised the company \u2019s turnover by MONEY ( SEK ) and considered that MONEY of that amount had been paid to the company owners during the tax assessment DATE and DATE . Consequently , by the same decisions , the applicant \u2019s taxable income for DATE was raised by SEK CARDINAL,CARDINAL . Moreover , as the revised taxation involved a discretionary assessment due to allegedly undisclosed salary payments in the applicant \u2019s tax returns , tax surcharges ( skattetill\u00e4gg ) were imposed on him , amounting to SEK CARDINAL,CARDINAL and CARDINAL , respectively , for DATE ( in total MONEY ( ORG ) ) .","The applicant appealed to ORG ( l\u00e4nsr\u00e4tten ) of GPE through his legal counsel . On DATE ORG reconsidered its decisions but did not change them .","On DATE the applicant applied to ORG for legal aid . Referring to LAW ( c ) of the LAW , he maintained that he had no financial means to pay for legal representation as he had not been granted a respite to pay the tax amounts , that the legal issues were not uncomplicated as statistical information concerning the NORP restaurant business had been used in determining the revised taxes and that the tax surcharges imposed on him were considerable . He further stated that , being of foreign origin , he did not fully master the NORP language .","On DATE the court refused the applicant legal aid . It noted that , under the terms of LAW ( R\u00e4ttshj\u00e4lpslagen , DATE ) , the scope for granting legal aid to a businessman in a taxation case was very limited . According to a leading decision by ORG ( Regeringsr\u00e4tten ) , the application of LAW ( c ) in a case concerning tax surcharges would depend on the size of the surcharges and the nature of the case ; only if the penalties were particularly heavy and the legal issues complicated could legal aid be granted by virtue of the LAW ( R\u00c5 DATE ref . CARDINAL ) . The instant case concerned mainly the question whether the documentation obtained by ORG constituted a sufficient ground for increasing the first applicant \u2019s liability to income tax . The court found that , although the documentation was relatively extensive , the legal issues , including those related to the subordinate questions concerning the tax surcharges , were not of such a character that the applicant had a right to legal aid under NORP law or the Convention .","On DATE ORG ( kammarr\u00e4tten ) in GPE rejected the applicant \u2019s appeal , subscribing to the reasons given by ORG . On DATE ORG refused leave to appeal .","By a judgment of DATE , ORG reduced the company \u2019s unrecorded revenues and salary payments . Accordingly , in a further judgment of DATE the court lowered the applicant \u2019s taxable income to SEK CARDINAL for each of the assessment years . In consequence of this finding , the tax surcharges were also reduced , to SEK CARDINAL,CARDINAL and CARDINAL , respectively , for DATE ( in total approximately ORG CARDINAL,CARDINAL ) . The court also decided that the applicant be compensated for litigation costs under LAW for Costs and Expenses in Cases Concerning Taxes , etc . ( NORP om ers\u00e4ttning f\u00f6r kostnader i \u00e4renden och m\u00e5l om skatt , m.m . , CARDINAL ) . The applicant was awarded SEK CARDINAL concerning the court proceedings and SEK CARDINAL,CARDINAL concerning the proceedings before ORG ( in total about EUR CARDINAL ) . He had claimed SEK CARDINAL and CARDINAL , respectively .","The applicant appealed against the taxation and the tax surcharges to ORG , where the case was still pending at the time of the present decision ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61660","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2004,"docname":"CASE OF PITKANEN v. FINLAND","importance":3,"conclusion":"No violation of Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicants are a married NORP couple , born in DATE and DATE respectively and resident in GPE . In DATE they bought a real property from the owner of a neighbouring property , PERSON , who had undertaken to tear down a lean - to which the latter had constructed partly on the land purchased by the applicants before splitting it up into a separate property . The applicants and PERSON allegedly reached a further agreement to the effect that the latter consented to the applicants\u2019 construction of a car shelter which would be connected to a new sauna building which ORG agreed to construct on his own property so as to replace the sauna in his lean - to .","On DATE ORG ( rakennus - valvontavirasto , byggnadsinspektionen ) granted permission to demolish the lean - to . Following that demolition , ORG ( rakennuslautakunta , byggnadsn\u00e4mnden ) , on DATE , granted the applicants permission to construct a dwelling - house and a car shelter on their property . L. did not appeal but refused to demolish the whole of his lean - to and to construct the new sauna building to be connected to the applicants\u2019 dwelling .","In DATE L. was prohibited from using his existing sauna as its chimney top was found to be partly under the roof level of the applicants\u2019 car shelter . The ORG offer to have the chimney top extended was refused by L.","On DATE representatives of ORG inspected the applicants\u2019 car shelter and found that it complied with the building permit . L. lodged an objection with ORG against this finding .","NORP In DATE L. brought a civil action against the applicants , demanding , inter alia , that they be ordered to tear down the car shelter which they had allegedly built in violation of the fire regulations . ORG ( raastuvanoikeus , r\u00e5dstuvur\u00e4tten ) held its first hearing in DATE but adjourned the case at ORG request in anticipation of ORG forthcoming decision .","On DATE ORG dismissed ORG \u2019s objection against the outcome of the inspection on DATE and confirmed that the applicants had constructed their buildings in accordance with the permit delivered in DATE . ORG found that PERSON had contributed to the fact that he had been prohibited from using his sauna , having refused to carry out his own construction works as agreed with the applicants . Had he fulfilled his part of their joint agreement in accordance with the building permission granted to that effect , the roof of his and the applicants\u2019 respective buildings would have been at the same height . ORG considered that the dispute between the parties was to be resolved by the civil courts .","L. appealed to ORG ( l\u00e4\u00e4ninoikeus , l\u00e4nsr\u00e4tten ) of PERSON , arguing that while he had consented to the applicants\u2019 constructing up to the boundary line , he had not agreed to any construction on their part preventing him from using his existing sauna and requiring him to take construction measures of his own . Although he had informed the applicants that his consent did not cover those aspects , they had not informed ORG accordingly . As a result the building permit and the approval of the applicants\u2019 construction works had been based on false premises .","NORP In DATE the applicants filed a counter claim against PERSON , demanding that he be ordered to carry out his part of their alleged agreement . The CARDINAL suits were joined at the ORG request . ORG second hearing was held on DATE but the case was again adjourned at ORG \u2019s request .","On DATE ORG upheld ORG decision of CARDINAL DATE . L. appealed further to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) and also requested the annulment of ORG decision of DATE , whereby it had granted the applicants a building permit .","ORG third hearing was held on DATE . The case was again adjourned at PERSON \u2019s request , as he had not yet received ORG decision of CARDINAL DATE .","On DATE ORG ( maaoikeus , jorddomstolen ) of ORG dismissed PERSON \u2019s appeal against a refusal to move a marker indicating his and the applicants\u2019 joint boundary line .","The civil case was again heard on DATE but was now adjourned at the request of both parties in anticipation of ORG decision in respect of PERSON \u2019s annulment request .","ORG fifth hearing was held on DATE but the case was again adjourned at PERSON \u2019s request . Following a sixth hearing on DATE ORG adjourned the case for the summoning of witnesses .","On DATE ORG dismissed PERSON \u2019s request for annulment of ORG decision of DATE . The court held that an error had indeed been committed during ORG examination of the applicants\u2019 request for a building permit . The court noted however the nature of PERSON \u2019s written undertakings towards the applicants which had led to the error , the manner in which their car shelter had been built as well as the fact that it would be easy to arrange for the smoke from ORG \u2019s sauna to be evacuated in a manner acceptable from the point of view of fire safety . The court therefore considered that ORG decision of DATE did not violate PERSON \u2019s rights , nor was it necessary in the general interest to annul that decision . The court furthermore dismissed PERSON \u2019s appeal against ORG decision of CARDINAL DATE .","NORP In DATE L. extended his civil action against the applicants by bringing further claims partly based on different legislation . At ORG seventh hearing on CARDINAL DATE it took evidence from the applicants\u2019 witnesses PERSON and P. The case was again adjourned at ORG request .","At the eighth hearing on DATE witnesses A. and ORG were heard at PERSON \u2019s request and witness PERSON was heard at the request of the applicants . A. furthermore handed in reports of his inspections in situ dated CARDINAL DATE and CARDINAL DATE . According to the applicants , ORG had by then already refused their request that the court conduct its own inspection . The case was adjourned at both parties\u2019 request so as to enable them to lodge further submissions in writing .","At ORG ninth hearing on DATE CARDINAL further witness was heard at the applicants\u2019 request and another witness at L. \u2019s request . The parties requested permission to make their final pleadings in writing and the case was adjourned for judgment at DATE .","Each of the CARDINAL hearings was presided over by a different judge .","Due to a national reorganisation of the courts of first instance the case was transferred to ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ; formerly ORG ) . In its judgment of DATE it found that ORG decision of DATE had not given rise to res judicata . ORG , moreover , accepted PERSON \u2019s extended action for consideration . It considered that whereas PERSON was the only witness who could have testified regarding the true character of the alleged agreement between the applicants and PERSON , P. \u2019s testimony had not been so detailed and certain that it could be regarded as decisive evidence that PERSON had agreed to tear down the whole of his lean - to . The court therefore found it established that the applicants had understood all along that PERSON had not intended to tear down the whole of his lean - to . By constructing the car shelter in the manner established they had effectively prevented PERSON from using his sauna . The applicants were therefore ordered to demolish their shelter and to restore PERSON \u2019s lean - to into its original state . It followed that the applicants\u2019 counter suit had to be dismissed .","The applicants were ordered to pay L. FIM CARDINAL ( about EUR CARDINAL ) in compensation for the damage which the construction of their shelter had caused to his lean - to . They were ordered to pay a further FIM CARDINAL,CARDINAL ( some EUR CARDINAL ) a year ( as from DATE ) in compensation for the impossibility for L. to use his sauna . They also had to reimburse PERSON \u2019s costs in the amount of ORG CARDINAL,CARDINAL,CARDINAL ( about EUR CARDINAL,CARDINAL ) .","As regards the extent of the damages suffered by PERSON , the ORG based itself exclusively on A. \u2019s testimony . After ORG judgment the applicants filed a criminal complaint against him , suspecting that he had committed perjury .","The applicants appealed against ORG judgment and later supplemented their appeal with a copy of the record of the pre - trial investigation into the suspected perjury which in their view showed that PERSON \u2019s testimony had not been truthful .","On DATE ORG ( hovioikeus , hovr\u00e4tten ) dismissed the ORG appeal and upheld ORG judgment , including its reasons . ORG refused to take into account the pre - trial investigation record concerning PERSON , as it had been submitted out of time and no special reasons militated in favour of accepting it as evidence . The applicants were ordered to pay PERSON \u2019s costs in the amount of ORG ( about EUR CARDINAL ) .","On DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused the applicants leave to appeal .","In order to tear down their car shelter and restore PERSON \u2019s lean - to the applicants were to obtain permission from FAC . In an opinion to ORG dated CARDINAL DATE ORG nevertheless considered that ORG demolition order was \u201c not an equitable solution \u201d , since the only change needed from the point of view of fire safety would be to extend PERSON \u2019s chimney top to QUANTITY above the applicants\u2019 car shelter . FAC would therefore not permit the car shelter to be torn down and such demolition would be contrary to the general interest by spoiling the appearance of the neighbourhood and violate both local planning regulations and general regulations on fire safety . ORG","On DATE the ORG convicted A. of perjury and sentenced him to CARDINAL months\u2019 conditional imprisonment . It found it established that he had deliberately omitted various relevant information from his testimony in PERSON \u2019s civil case against the applicants . In the light of this judgment the applicants requested ORG to reopen the proceedings .","L. died in DATE , having sold his property .","On DATE ORG granted the applicants\u2019 request for a reopening of the proceedings in so far as they had been ordered to compensate PERSON for the damage which the construction of their car shelter had caused to his lean - to as well as to pay him the costs incurred in the proceedings before the lower courts . ORG referred to A. \u2019s conviction of perjury .","Referring to its decision of CARDINAL DATE , ORG declined to examine anew the applicant \u2019s request for a re - opening of the case in respect of the order requiring them to demolish the car shelter , to restore PERSON \u2019s lean - to into its state prior to the construction of the shelter as well as to pay NORP DATE compensation for the fact that he had been prevented from using his sauna .","As of DATE the current owners of ORG house had not requested , and the authorities had not enforced , the aforementioned CARDINAL orders .","In re - opening part of the case ORG instructed the applicants to file , within DATE , a new action against PERSON before FAC . They initiated such proceedings against PERSON \u2019s successors on CARDINAL DATE and supplemented their statement of claim on DATE in light of the defendants\u2019 written observations . The court \u2019s preparatory hearing was held on DATE .","On DATE the parties reached a settlement whereby PERSON \u2019s successors undertook to reimburse the applicants the amount of ORG CARDINAL ( i.e. the compensation which the applicants had paid to L. ) as well as a further sum of EUR CARDINAL . PERSON \u2019s insurance company undertook to reimburse EUR CARDINAL of the costs paid by the applicants . The sums were to be divided between the applicants and their insurance company as later agreed . The applicants and PERSON \u2019s successors declared that they had no further claims against one another whether in relation to the proceedings initiated in DATE or to any previous court proceedings or related events .","The settlement was approved by ORG on DATE .","According to LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ) , as in force at the relevant time ( LAW , section CARDINAL ) , the chairman and CARDINAL lay judges constituted the quorum in a district court . Each of the lay judges had a personal vote .","If a party considered that civil or criminal proceedings had been delayed unjustifiably , a procedural complaint ( kantelu , klagan ) could be lodged with the court of appeal within DATE from the adjournment ( LAW , section CARDINAL , subsection CARDINAL of LAW ) . If it was important for the resolution of the case that an issue under examination in other proceedings be resolved first , or if there was another long - term impediment to the case being examined , the court could adjourn the case until such time that the impediment has ceased to exist ( section CARDINAL ) . These provisions were repealed with effect from DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88523","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"HORNBY v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE , leaving no dependent children . His claim for widows\u2019 benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75142","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"HAKAN AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["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\u2019 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\u2019 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 \u2019s 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\u2019 houses stated that they had not seen anybody suspicious who could have perpetrated the burning down of the applicants\u2019 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68119","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2005,"docname":"CASE OF ZILIBERBERG v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["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 \u00a7 CARDINAL of the Code of Administrative Offences ( hereinafter referred to as the \u201c CAO \u201d ) . 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 \u201c STUDENT \u201d , 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 \u00a7 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 Chi\u015fin\u0103u Regional Court heard the applicant \u2019s 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 ( contesta\u0163ie \u00een 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 \u2019s 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 .","( \u00cen caz de sustragere cu rea - voin\u0163\u0103 de la achitarea amenzii aplicate pentru contraven\u0163ia administrativ\u0103 sav\u00e2r\u015fit\u0103 , instan\u0163a judecatoreasc\u0103 poate \u00eenlocui aceast\u0103 sanc\u0163iune cu arest administrativ , calcul\u00e2ndu - 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 \u2019s 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 \u201c The Procedure in Administrative Offence cases \u201d by PERSON ( judge at ORG in GPE ) , ( Chi\u015fin\u0103u DATE ) , the author states the following : \u201c 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 \u201d ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93400","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2009,"docname":"GALIC v. THE NETHERLANDS","importance":2,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Elisabet Fura;Josep Casadevall;Luis L\u00f3pez Guerra","text":["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 \u2019s Prosecutor indicted the applicant in the following terms :","\u201c 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 ( \u201c ORG of the NORP Republic \u201d ) , 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 \u2018 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 .","By his acts and omissions , PERSON is responsible for :","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 .","By his acts and omissions , PERSON is responsible for :","COUNT CARDINAL : Crimes against Humanity ( murder ) punishable under Article CARDINAL ) of the Statute of the ORG .","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 . \u201d","This indictment was confirmed on DATE by Judge PERSON It was kept sealed until the applicant \u2019s arrest .","The applicant was arrested by ORG ) on DATE and transferred to the ORG DATE .","On DATE the ORG \u2019s Acting President assigned the applicant \u2019s 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 \u2019s 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 \u2019s appeal . By a majority , it allowed the prosecution \u2019s 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 \u2019s sentencing practice . A third judge , Judge PERSON . , dissented with regard to the applicant \u2019s conviction on the first count of the indictment .","On DATE the ORG \u2019s Prosecutor presented an amended indictment against a different accused , Mr ORG . This indictment included the following passages :","\u201c 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 . \u201d","and","\u201c 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 \u2018 ORG in this indictment , the ORG does not suggest that the accused physically committed any of the crimes charged personally . \u2018 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 , Vogo\u0161\u0107a ] ; 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 ; ... \u201d","and","\u201c 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 . \u201d","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 \u2019s involvement in his own trial . The applicant argued that according to the indictment against ORG the acts of the \u201c joint criminal enterprise \u201d mentioned in paragraph CARDINAL had included murders amounting to \u201c genocide \u201d committed in the municipality of Vogo\u0161\u0107a , an area under the applicant \u2019s territorial responsibility , but that this crime was not included on the applicant \u2019s indictment . \u201c Genocide \u201d 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 \u2019s part a preconception that the applicant \u2019s 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 Mladi\u0107 and could not be seen as prejudicial to his impartiality vis - \u00e0 - 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 ( \u201c the LAW \u201d ) . The complaints therein contained may be summarised as follows :","Under LAW ( \u201c LAW \u201d ) and LAW ( \u201c the LAW \u201d ) , 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 \u2019s 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 \u00a7 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 \u2019s 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 :","\u201c 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 . \u201d","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 :","\u201c 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 ] \u2013 is not a State party to the Optional Protocol . \u201d","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 :","\u201c 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 \u2018 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 . \u201d","Annexed to the resolution was the \u201c 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 \u201d . 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 . \u201d","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 ( \u201c LAW \u201d ) reads as follows :","\u201c ORG and GPE ,","Whereas ORG acting under LAW decided , by paragraph CARDINAL of its resolution CARDINAL ( DATE ) of CARDINAL DATE , inter alia \u2018 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 \u2018 the determination of the seat of ORG is subject to the conclusion of appropriate arrangements between ORG and the GPE acceptable to the Council\u2019 ;","Whereas the Statute of ORG , in its DATE , provides that \u2018 the ORG shall have its seat at The Hague\u2019 ;","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 . \u201d","The expressions \u201c General Convention \u201d and \u201c LAW \u201d 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 . \u201d","As relevant to the case before the ORG , the ICTY \u2019s 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 . ... \u201d","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 ) \u2013 \u201c ORG \u201d ) . It regulates , among other things , criminal jurisdiction over members of their armed forces serving on each other \u2019s territory . Article VII of this Agreement provides as follows :","\u201c 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 . \u201d","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 \u2013 UNTS \u2013 pp . CARDINAL et seq . ) . ORG in the GPE existed until DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109546","languageisocode":"ENG","respondent":"MLT","branch":"ADMISSIBILITY","date":2012,"docname":"FARRUGIA v. MALTA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicants , Mr PERSON and Mr PERSON are NORP nationals who were born in DATE and DATE respectively and live in GPE PERSON \u2019s . 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 \u2019s 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 ( \u201c LAPPO \u201d ) , 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\u2019 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 \u2019s 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\u2019 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 :","\u201c \" 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 ; \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82083","languageisocode":"ENG","respondent":"LIE","branch":"ADMISSIBILITY","date":2007,"docname":"DASSA FOUNDATION AND OTHERS v. LIECHTENSTEIN","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["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 \u2018 Relevant domestic and international law\u2019 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\u2019 assets for DATE .","On DATE ORG , acting in the course of independent objective forfeiture proceedings ( objektives ORG ) under section CARDINAL of LAW ( see \u2018 Relevant domestic and international law\u2019 below ) against the applicant foundations ORG ( file no . TIME ) , prolonged the seizure of the foundations\u2019 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\u2019 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 \u2019s reasoning ( section MONEY \u00a7 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\u2019 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 \u00a7 CARDINAL of LAW ( see \u2018 Relevant domestic and international law\u2019 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 \u00a7 CARDINAL of LAW in order to prolong the blocking of the foundations\u2019 accounts violated the prohibition of retroactive punishment guaranteed by section CARDINAL read in conjunction with section CARDINAL \u00a7 CARDINAL of LAW ( see \u2018 Relevant domestic and international law\u2019 below ) and LAW .","ORG transmitted the appeal to ORG ( PERSON ) .","On DATE ORG dismissed the applicant foundations\u2019 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 \u00a7 CARDINAL of the Code of Criminal Procedure ( see \u2018 Relevant domestic and international law\u2019 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\u2019 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 \u2019s 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 \u2018 Relevant domestic and international law\u2019 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 \u2018 Relevant domestic and international law\u2019 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\u2019 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 \u00a7 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 , \u00a7 CARDINAL ) it found that forfeiture pursuant to section CARDINAL \u00a7 CARDINAL of LAW was not a \u201c penalty \u201d 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 \u2018 Relevant domestic and international law\u2019 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 \u2013 other than , for example , in the PERSON case \u2013 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\u2019 right to be heard by the judge having jurisdiction over the case under LAW \u00a7 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\u2019 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 \u00a7 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\u2019 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 \u00a7 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\u2019 complaint as ill - founded . It referred to the grounds given in its decision of CARDINAL DATE . As regards the foundations\u2019 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 \u00a7 CARDINAL of the LAW stipulates that the threat or imposition of penalties must be in accordance with the law .","Article CARDINAL \u00a7 CARDINAL of the LAW guarantees the inviolability of private property .","Section CARDINAL of the Criminal Code prohibits punishment without law . Pursuant to section CARDINAL \u00a7 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 \u00a7 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\u2019 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 \u00a7 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 \u00a7 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 \u00a7 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 \u00a7 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 \u00a7 CARDINAL of LAW ) .","Section CARDINALa \u00a7 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 \u00a7 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 \u00a7 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 ( \u00a7 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 ( \u00a7 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 \u00a7 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 \u00a7 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 ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99843","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2010,"docname":"KOROLEV v. RUSSIA","importance":1,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["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 \u2019s claim . On DATE the ORG quashed the judgment on appeal and referred the case back to ORG .","On DATE ORG allowed the applicant \u2019s 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 \u2019s 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 \u2019s award of RUB CARDINAL . On CARDINAL DATE the bailiff initiated enforcement proceedings .","On DATE the applicant challenged the bailiff \u2019s 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 \u2019s 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 ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93260","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2009,"docname":"CASE OF MARESTI v. CROATIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P7-4;Remainder inadmissible;Non-pecuniary damage - Award","judges":"Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in PERSON .","On DATE the Pazin Police lodged a request for minor - offences proceedings to be instituted against the applicant in ORG ( Prekr\u0161ajni sud u GPE ) . In a decision of DATE ORG found that at TIME on DATE at the PERSON coach terminal , the applicant had , while under the influence of alcohol , verbally insulted CARDINAL D.R. , punched him in the head several times and proceeded to kick and punch him about the body . The applicant was found guilty of particularly offensive behaviour in a public place in that he had insulted another and caused a breach of the peace . This constituted a minor offence under section CARDINAL of ORG for which he was sentenced to CARDINAL days\u2019 imprisonment . That decision became final on DATE . The relevant part of the decision reads :","\u201c Defendant : PERSON ...","is guilty","in that at TIME on DATE at the coach terminal in PERSON , while under the influence of alcohol , he ... firstly insulted PERSON ... and then pushed him with both hands and , when he fought back , started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body .","... \u201d","On DATE the NORP State Attorney \u2019s Office ( Op\u0107insko dr\u017eavno odvjetni\u0161tvo PERSON ) lodged an indictment with ORG ( PERSON ) accusing the applicant of causing grievous bodily injury to CARDINAL","The applicant was represented in the proceedings by counsel . On DATE his counsel submitted a written request for all correspondence to go through him and enclosed a signed authority by the applicant \u2019s mother . At the time the applicant was serving a prison sentence in FAC .","On DATE the NORP State Attorney \u2019s ORG lodged an indictment with ORG accusing the applicant of causing grievous bodily injury to D.R. It relied in the indictment on a police report on the events of DATE .","On DATE ORG joined CARDINAL separate sets of criminal proceedings against the applicant , including the proceedings in respect of the alleged assaults on DATE On DATE it ordered the applicant \u2019s detention on the grounds that he had been indicted in several sets of proceedings , had a number of previous convictions and would be liable to reoffend if left at large .","On DATE ORG found the applicant guilty on CARDINAL counts of assault causing grievous bodily injury and CARDINAL count of making death threats . In respect of the incident at the PERSON coach terminal on DATE , it found that the applicant had approached PERSON and insulted him verbally before proceeding to punch and kick him about the body . He was sentenced to DATE imprisonment in respect of all the offences of which he was convicted . The time he had already served in connection with his conviction in the summary proceedings before ORG was to be deducted from his sentence . He was ordered to undergo compulsory treatment for alcohol addiction during his imprisonment . The relevant part of the judgment reads :","\u201c Defendant PERSON ...","is guilty","because","...","CARDINAL ) at TIME on DATE . at the coach terminal in PERSON , while under the influence of alcohol , he ... approached PERSON ... and firstly insulted him verbally , ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis ; when he [ D.R. ] attempted to leave , the defendant caught him , pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries ... \u201d","In an appeal of DATE the applicant alleged , inter alia , that in respect of the offences against TIME and GPE he had already been convicted by ORG and that the non bis in idem rule had been violated . On DATE the ORG ( \u017dupanijski sud u GPE ) allowed the applicant \u2019s appeal in respect of the offence against TIME , on grounds other than the alleged violation of the non bis in idem rule , and upheld his convictions of the other CARDINAL offences , while reducing the overall sentence to CARDINAL months\u2019 imprisonment .","The appellate judgment was served on the applicant \u2019s mother on DATE and on his counsel on DATE . On DATE the applicant \u2019s counsel lodged a request with ORG for extraordinary review of the final judgment . He argued , inter alia , that the applicant had acted in self defence and repeated the submission he had made on appeal that , as the applicant had already been convicted by ORG , the non bis in idem rule had been violated .","In a decision of DATE , ORG declared the request inadmissible as it had been lodged outside the DATE time limit . On an appeal against that decision , the applicant argued that the impugned judgment had not been properly served since his mother suffered from schizophrenia and was not capable of clear judgment and so could not be regarded as an adult member of the same household within the meaning of Article CARDINAL , paragraph CARDINAL , of LAW . He supported that assertion with a medical certificate . He further argued that his request for extraordinary review of the final judgment had been lodged within DATE after it was served on his counsel and so had complied with the prescribed time - limit .","On DATE ORG dismissed the appeal after finding that the applicant \u2019s mother had signed an authority for the applicant \u2019s legal representation in the criminal proceedings , so that it could not be said that she had been incapable of clear judgment .","In a subsequent constitutional complaint lodged on DATE the applicant argued , inter alia , that the judgment of ORG of DATE had not been properly served on him and that his right to a remedy had thus been violated . On CARDINAL DATE ORG declared the complaint inadmissible on the ground that it did not concern the merits of the case .","The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL\/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) read as follows :","\u201c Correspondence for which this LAW does not specifically prescribe personal service shall also be served personally . Where , however , the intended recipient is not found on the premises ... , it may be served on an adult member of the same household who shall be bound to accept service ... \u201d","\u201c An infringement of LAW arises if :","...","there exist circumstances which exclude criminal prosecution , in particular , where ... the matter has already been finally adjudicated ,","... \u201d","\u201c ( CARDINAL ) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this LAW .","( CARDINAL ) A request for the extraordinary review of a final judgment shall be lodged within DATE after the final judgment has been served on the defendant .","... \u201d","\u201c ORG shall decide requests for the extraordinary review of a final judgment . \u201d","\u201c A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :","an infringement of LAW to the detriment of the convicted person under LAW ...","...","an infringement of the defence rights at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . \u201d","The relevant parts of LAW ( PERSON , ORG no . CARDINAL\/CARDINAL ) read as follows :","\u201c Whoever inflicts bodily injury on another or impairs another \u2019s health shall be sentenced to imprisonment for a term of DATE and not exceeding DATE . \u201d","The relevant part of ORG ( Zakon o prekr\u0161ajima protiv javnog reda i mira , ORG nos . CARDINAL\/CARDINAL , CARDINAL and CARDINAL ) reads :","\u201c Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding DATE . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22735","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2002,"docname":"AKSOY v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Ireneu Cabral Barreto;Mark Villiger","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG ( Y\u00fcksek Askeri \u015eura ) decided to discharge the applicant from the army on grounds of acts of \u201c insubordination and immoral conduct \u201d pursuant to LAW .","The Government submit the following in the light of the intelligence reports concerning the applicant :","The applicant , a non - commissioned officer , was a member of ORG . He established contacts with Captain R.Y who was discharged from the army . He adopted extreme religious ideology . He refused to participate in social meetings because he believed that men and women should gather in separate rooms . He had an antisocial character and his wife carried an NORP scarf .","His superiors considered the applicant as an insubordinate and undisciplined soldier . He was sentenced to DATE confinement for being absent when called out , DATE confinement for negligence and DATE confinement for disobedience .","A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .","The relevant provisions of the LAW are as follows :","\u201c None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . \u201d","\u201c Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...","No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . \u201d","\u201c All acts or decisions of the administration are subject to judicial review","...","Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .","... \u201d","Article CARDINAL \u00a7 \u00a7 CARDINAL , CARDINAL and DATE of LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .","Section CARDINAL ( c ) of ORG provides :","\u201c Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .","...","Where their conduct and attitude reveal that they have adopted unlawful opinions . \u201d","Section CARDINAL ( c ) of LAW provides :","\u201c Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . \u201d","Section CARDINAL ( b ) of LAW provides :","\u201c ( b ) Discharge from the army for the acts of insubordination and immoral conduct :","Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned officers ' cases concerning their discharge from the army should be examined by ORG . \u201d","LAW on assessment of officers and non - commissioned officers provides :","\u201c Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :","...","( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57794","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1992,"docname":"CASE OF SAINTE-MARIE v. FRANCE","importance":3,"conclusion":"Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1","judges":"R. Pekkanen","text":["Mr PERSON , a NORP national born in DATE , resides at GPE , in the ORG department ; he is a farmer .","On DATE police officers ( gendarmes ) arrested him and seized at his home various articles and documents , in particular arms and ammunition . They were acting in connection with an inquiry into a bomb attack carried out in TIME CARDINAL DATE against ORG police station ( gendarmerie ) , responsibility for which was subsequently claimed by Iparretarrak , a clandestine NORP separatist movement .","The following day a GPE investigating judge remanded the applicant in custody after having charged him under the following CARDINAL heads : first , unauthorised possession of a category I weapon and category I ammunition , transport without a lawful reason of such a weapon and ammunition and of a category VI weapon , possession without a lawful reason of incendiary devices and criminal conspiracy ; second , using explosives to cause criminal damage to another person \u2019s immoveable property , in connection with an earlier attack against another police station - then under construction - , that of ORG , in TIME to DATE .","The CARDINAL sets of proceedings were conducted in parallel both as regards review of the detention on remand and for the investigation and trial .","On DATE the ORG investigating judge dismissed an application for release which Mr PERSON had submitted to him .","On an appeal by the applicant , ORG ( chambre d\u2019accusation ) of ORG upheld the investigating judge \u2019s order , on DATE , on the following grounds :","\" ...","... PERSON said that he was a member of Iparretarrak , admitted ownership of the arms , ammunition and unlawful or suspect articles found in the cars and at his home , stated that the electrical mechanisms were to be used by the organisation for the detonation of explosives at targets of which he was unaware and acknowledged having even participated as driver in the expedition of CARDINAL - CARDINAL DATE , the objective of which had been the police barracks under construction at ORG , which were partly destroyed that night by explosives .","PERSON was therefore properly charged and remanded in custody , when brought before the GPE public prosecutor \u2019s office on DATE , in respect of CARDINAL investigations :","- the first concerns a charge of using explosives to cause criminal damage to another person \u2019s immoveable property ( in connection with the destruction of the NORP police station ) ;","- the second , which is the subject of the prosecution report before us , concerns charges of unauthorised possession of a category I weapon and category I ammunition , transport without a lawful reason of such a weapon and ammunition and of a category VI weapon , possession without a lawful reason of incendiary devices and criminal conspiracy .","...","When he was interviewed as to the substance of the charges on DATE , ORG , who had admitted the offences when he first appeared , refused to make any further statements .","Expert examinations were carried out on the firearm and the ammunition seized , which were of the same type as those normally used by the NORP revolutionary group , Iparretarrak .","The alleged offences are therefore manifestly serious ones and in the light of the available evidence the accused \u2019s continued detention on remand is fully justified in order to prevent him from absconding since he could go into hiding like other members of the organisation . Detention is also the only means of ensuring that he does not re - offend . \"","ORG was composed of Mr Svahn , President , PERSON and PERSON , judges , appointed on DATE by the general assembly of ORG ( Article CARDINAL , fourth sub - paragraph , of LAW ) .","On DATE ORG declared void the flagrante delicto investigation concerning PERSON , as well as all the subsequent proceedings . It found as follows :","\" ...","The flagrante delicto procedure confers on police officers by way of exception some of the widest powers of the investigating judge , including those which seriously encroach on individual freedoms such as the inviolability of a person \u2019s home . That is why a strict interpretation is called for of the criteria authorising what are \u2018 veritable investigative powers\u2019 ( PERSON and PERSON , ORG p\u00e9nal g\u00e9n\u00e9ral et proc\u00e9dure p\u00e9nale , DATE edition , volume II , no . CARDINAL ) .","Admittedly LAW , which defines the conditions for an investigation under the flagrante delicto procedure , does not indicate any time - limit for such an investigation , with the result that the surprisingly long duration - QUANTITY days - of that carried out following the criminal bomb attack at GPE is not sufficient to entail its nullity , but this extension beyond the usual period in such circumstances exposed the police officers to the risk of losing sight of the conditions laid down in the relevant provision . Thus the measures taken by them against PERSON are open to the following criticisms :","In the first place , for the period from DATE QUANTITY January TIME no measure is mentioned in the recapitulatory report and no official record appears in the file of the proceedings . This interruption of over twenty- TIME removed any justification for the very prolonged continuation of the inquiry under the flagrante delicto procedure .","Secondly , the attention of the police officers was finally drawn to PERSON not only because he was known to be sympathetic to the NORP separatist movements , but also by the information received on DATE that this new suspect sometimes drove a ORG CARDINAL of the same colour as a ORG which had been noticed in a street of GPE on TIME of the attack . Yet it is \u2018 within a very short time after DATE ( LAW ORG [ Code of Criminal Procedure ] ) that the persons suspected must manifest \u2018 marks or ORG and this temporal condition can not be regarded as satisfied where the clue which led the investigators to ORG home was only discovered by them DATE after the offences had been committed .","Finally , there can be no doubt that the procedural irregularity justifiably complained of has caused prejudice to the accused . The defence is therefore well - founded in claiming that the search which led to the discovery of various articles for the possession of which ORG is charged and which led to the confessions relied on by the prosecution was void . \"","On DATE ORG of ORG ruled on the prosecuting authority \u2019s appeal against the decision of the court below :","\" ...","Contrary to the claims of the defence , which were accepted without verification by the first - instance court , the inquiry was continued without interruption , DATE and TIME , until DATE ( see in particular the official record of DATE whose existence has been ignored by the defence , who have no excuse for this because it is referred to in the recapitulatory report of the single inquiry covering the attack on the police station and the possession of weapons , the latter offence being the subject of the present proceedings ) up to the discovery of the car which had been seen in the locality of the attack and the searches carried out at the home of the persons who use this vehicle , which led to the discovery of weapons and incendiary devices in the possession of ORG , who , when questioned , denied having taken part in the attack on the GPE police station , but admitted to being a member of the \u2018 Abertzale\u2019 movement and having participated in the attack carried out DATE previously on the LOC police station ;","It follows that the CARDINAL grounds of nullity invoked by the defence , grounds which were accepted by the court below , do not stand up to examination and the complaints must be dismissed ;","Under LAW , where the decision of a court which has ruled solely on a procedural objection without examining the charges , thus relinquishing jurisdiction for the continuation of the proceedings , is declared void , ORG must try the case on its merits ;","Consequently the case must be set down for hearing at a future date for the examination of whether the charges against ORG are well - founded ;","FOR THESE REASONS :","[ ORG ]","Sitting in open court and in adversarial proceedings ;","Holds that the appeal is admissible and well - founded ;","Holds that the examination of the investigation carried out under the flagrante delicto procedure by the Maul\u00e9on - Licharre police force concerning PERSON does not disclose a ground of nullity ;","Setting aside the relevant decision ,","Quashes the decision appealed and , pursuant to LAW , decides to try the case itself ;","Sets down the case for hearing on DATE to examine the charges ;","Reserves the costs . \"","ORG was composed of Mr Svahn , President , and PERSON and PERSON , judges , all CARDINAL of whom were appointed on DATE by the First President of ORG ( Article CARDINAL of LAW ) .","By a second decision , of CARDINAL DATE , ORG sentenced the applicant to a term of DATE imprisonment , on the following grounds :","\" The case falls to be heard on its merits by ORG in accordance with the decision of this court dated DATE .","The unlawful possession of an automatic pistol , a category I weapon and ammunition for that weapon , and CARDINAL molotov cocktails , which are incendiary devices , and the transport in a vehicle of such material and of a flick - knife are facts established by the findings of the police investigators in the course of the searches carried out and are moreover admitted by the accused himself ; they indeed constitute the offences of unauthorised possession of category I weapons and ammunition and transport without a lawful reason of category I and category VI weapons and category I ammunition and the offence of possession without a lawful reason of incendiary devices , provided for and punished by Articles CARDINAL and CARDINAL of the LAW of DATE and LAW of DATE .","The accused admitted and even asserted his membership of the Iparretarrak movement ; this movement was formed with a view to attaining political objectives aimed at securing the independence and unification of the northern and southern NORP provinces ; in pursuit of that aim it adopted various methods , in particular armed struggle , which make it an association or a conspiracy established with a view to the preparation and commission of offences against persons or property within the meaning of LAW .","...","The weapons , ammunition and electrical components for devices for the detonation of explosives found in ORG possession and his own statements concerning his membership of the Iparretarrak movement and on the use to which he intended to put the weapons and the materials discovered leave no doubt as to the accused \u2019s intention of supporting that movement , the criminal aims of which are well known to him .","... \"","ORG was composed of Mr Lasalle- ORG , judge , replacing the President , the latter being unable to sit , and designated for this purpose by the First President on DATE , as well as PERSON and PERSON , judges .","Mr PERSON filed CARDINAL appeals on points of law against the decisions of DATE and DATE . They were dismissed by ORG in a single judgment of DATE .","In his memorial the applicant had made CARDINAL submissions .","CARDINAL of them related to the decision of CARDINAL DATE , which is not in issue here ( see paragraph CARDINAL below ) .","The first concerned the composition of ORG when it quashed the decision of DATE ( see paragraphs CARDINAL above ) . ORG of ORG dismissed this complaint in the following terms :","\" As regards the first ground of appeal , based on the violation of Articles DATE and CARDINAL of the Code of Criminal Procedure and of Article CARDINAL ( article CARDINAL ) of LAW ... [ , whereby the appellant alleges as follows ] :","\u2018 In so far as it appears from the interlocutory decision of DATE that ORG was composed of PERSON , sitting as President , and PERSON and PERSON , judges ;","in the first place , these judges had sat in the same case as members of the indictment division which , in CARDINAL decisions dated DATE and CARDINAL DATE , had confirmed orders refusing the applicant \u2019s release ; having thus been involved in the case at the stage of the investigation , they were precluded by virtue of the provisions of LAW from subsequently participating in the trial and ruling on whether the offence had been committed and on the accused \u2019s guilt ;","secondly , LAW provides that \u2018 everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law ... \u2019 . ORG has already held that impartiality must be assessed according to an objective test making it possible to affirm that a court affords sufficient guarantees to rule out any legitimate doubts in this respect ; that was not the case in this instance , since , having given on QUANTITY occasions , as members of an indictment division , decisions confirming orders refusing the applicant \u2019s release , these judges had necessarily carried out a preliminary examination of the merits and adopted a position on the value of the evidence and clues against the accused , so that they were precluded from subsequently participating in the trial and ruling on whether the offence had been committed and the accused \u2019s ORG ;","The fact that judges of ORG which gave the contested decisions had , in the same case , as members of ORG , previously ruled on the accused \u2019s detention on remand is not a ground for quashing a judgment , since no statutory provision prohibits on pain of nullity the members of the indictment division which has given such a ruling from subsequently sitting in ORG before which the case comes and , furthermore , such participation is not contrary to the requirement of impartiality laid down in DATE ( article CARDINAL ) of LAW ... ;","Accordingly , ORG is satisfied that the court was lawfully composed ;","The submission must therefore fail . \"","The second submission concerned the lack of a statement of reasons , the failure to reply to final submissions , the lack of a legal basis and the violation of the rights of the defence ( Articles CARDINAL , DATE , DATE , DATE and CARDINAL of LAW CARDINAL ( article CARDINAL ) of the Convention ) .","The remaining submissions were founded on the lack of a record of the oath of the CARDINAL witnesses who testified at the appeal hearing on DATE ( Articles CARDINAL , CARDINAL and CARDINAL of LAW ) as well as the failure to state reasons and the lack of a legal basis for the judgment of CARDINAL DATE ( ORG CARDINAL of the Criminal Code and CARDINAL of LAW ) , and not the lawfulness of the composition of ORG in these proceedings ( see paragraph CARDINAL above ) .","On the basis of the decision of DATE ( see paragraph CARDINAL above ) and contending that the proceedings in question were void , Mr PERSON applied for his release .","On DATE the investigating judge dismissed his application .","On DATE ORG of ORG dismissed PERSON appeal from the investigating judge \u2019s order . Its decision was based on the following reasons :","\" The facts have already been examined in an earlier decision of ORG dated DATE [ see paragraph CARDINAL above ] ; express reference is made thereto .","In support of his application and his appeal , PERSON argues essentially that these proceedings , in respect of which he is detained , are void because ORG has declared void other proceedings , the initial investigation for which had provided the legal basis for the present case . According to his lawyer , PERSON confessions were obtained following his arrest , held to be unlawful by the criminal court on account of the flagrante delicto procedure used . He could not therefore , it was contended , be kept in detention on that basis .","However , the decision of ORG was immediately appealed by the public prosecutor and is shortly to be examined by ORG .","As the decision of the lower court has been challenged by an appeal to the second - instance court for a new ruling on the facts and the law , the argument of the accused , who claims to be detained by virtue of proceedings which have been declared void , can not be accepted , beyond the [ question of ] fact already adjudicated upon ; it does not fall to ORG to give a ruling , at this stage , on this matter .","The proceedings in question must therefore be regarded as perfectly lawful until such time as a final decision to the contrary has been given ;","PERSON should be kept in detention , at the disposal of the judicial authorities . The other arguments put forward by the accused in his memorial are not sufficient to outweigh the fact that he has already shown that he represents a danger to public order and to the institutions of the ORG and that it may be thought that he would not hesitate to rejoin his comrades or accomplices in hiding if he were to be released . \"","ORG was composed of PERSON , President , and PERSON and PERSON , judges , appointed on DATE by the general assembly of ORG ( Article CARDINAL , fourth sub - paragraph , of LAW ) .","On DATE ORG sentenced PERSON to DATE imprisonment . Its judgment was upheld on DATE by ORG . The applicant filed an appeal on points of law , which ORG dismissed on CARDINAL DATE .","These various decisions are not at issue in the present proceedings ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4555","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":1999,"docname":"CESKOMORAVSKA MYSLIVECKA JEDNOTA v. THE CZECH REPUBLIC","importance":3,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is an association of hunters and gamekeepers , registered in GPE . It is represented before the ORG by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","A.","In DATE a privately owned house and plot situated in GPE CARDINAL was nationalised by the ORG pursuant to ORG . No compensation was awarded to its owner .","In DATE the property was sold to the applicant association for CARDINAL crowns . The monetary reform of DATE devalued the crown at the rate of CARDINAL .","On DATE the successors to the former owner of the property entitled to restitution under LAW the Extra - Judicial Rehabilitation Act ( ORG o mimosoudn\u00edch rehabilitac\u00edch ) ( \u201c the LAW \u201d ) , made a request to the applicant association for an agreement on restitution under LAW . As the applicant association refused to conclude the agreement , they brought an action against the applicant association in the GPE CARDINAL ORG ( obvodn\u00ed soud ) .","On DATE ORG ordered the applicant association to conclude an agreement on the restitution of the property stating , inter alia , that the nationalisation of the property had been unlawful . As to the current value of the property , the court held that the parties could solve this issue in a separate agreement .","The applicant association appealed against this judgment claiming that the unlawfulness of the nationalisation had not been established . It also argued that it could not be a \u201c mandated person \u201d under LAW because it had acquired the property by a lawful purchase in DATE .","On DATE ORG ( m\u011bstsk\u00fd soud ) rejected the applicant association \u2019s appeal finding , in particular , that LAW applied in the present case as the former owner had not received any compensation and that the applicant association was not excluded from the scope of LAW . The court further stated that the applicant association claimed compensation for the revaluation of the property but did not specify the amount of the compensation and the claimants denied the revaluation of the property within the meaning of LAW ) of LAW . Moreover , the applicant association did not lodge a reciprocal action under LAW of LAW . The documents from DATE , DATE and DATE submitted by it , concerned the property in question , but were given to the court without any selection . The court found that it was for the applicant association to specify its claims of revaluation of the property and submit them in a separate action .","On DATE the applicant association lodged an appeal on points of law ( dovol\u00e1n\u00ed ) claiming , inter alia , that it could not be required to return the property because it was not a legal entity which had acquired the property from the ORG free of charge .","On DATE ORG ( PERSON ) dismissed the applicant \u2019s appeal stating in particular :","\u201c \u2026 if the property which was nationalised without compensation is not in the possession or ownership of such legal entities as mentioned in LAW ORG \u2019s property to Other Persons Act as amended ( i.e. state enterprise , state bank , state insurance company and other state organisation \u2026 ) , the redress for the violation of the property rights will be governed by the [ Restitution ] Act in accordance with ORG ) of ORG to Other Persons Act ( as amended ) . \u2026 \u201d","As to the valuation of the property , ORG found :","\u201c According to Section CARDINAL(CARDINAL ) of the [ Restitution ] Act , the mandated person shall conclude an agreement with the entitled person about the surrender of the property without any obligatory settlement of mutual claims \u2026 Nor does Section CARDINAL(CARDINAL ) of the [ Restitution ] Act , according to which the entitled person shall compensate the mandated person for the difference between the original price and the actual price , specify the manner of that compensation . \u2026 This situation is governed by general provisions of LAW concerning the obligations . However , LAW concerning reciprocal obligations can not be applied in the agreement on the surrender the property under the [ LAW . \u201d","On DATE the applicant association lodged a constitutional appeal claiming , in particular , that the national courts had violated its right to safeguard its property rights under LAW and LAW No . CARDINAL to the Convention . It challenged the findings of the courts concerning its position as a person obliged to surrender the property , the question of compensation for revaluation of the property , the relation between LAW and ORG property to LAW ( as amended ) ( PERSON o p\u0159evodu majetku st\u00e1tu na jin\u00e9 osoby ) ( \u201c LAW \u201d ) and the relation of these two Acts to the general civil law concerning obligations .","On DATE ORG ( GPE soud ) rejected the applicant association \u2019s appeal as manifestly ill - founded referring to the findings of ORG .","On DATE an expert report determined the real value of the applicant association \u2019s property at CARDINAL crowns .","On DATE the purchase price of CARDINAL crowns fixed in pursuance of Section CARDINAL(CARDINAL ) of ORG of GPE , was paid to the applicant association by ORG as provided for in LAW of LAW .","B. Relevant domestic law","LAW No . CARDINAL\/CARDINAL [ \u201c the LAW \u201d ]","In the preamble to LAW of DATE , ORG of the NORP and GPE affirmed its will to prevent violations of the kind committed in the past .","Section CARDINAL(CARDINAL ) sets out the aim of the LAW , providing that it is designed to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the LAW of ORG and LAW .","According to LAW ) and ( CARDINAL ) , such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms , that is , an act in contradiction with the principles referred to in LAW ) of the LAW . When an entitled person was deprived of his or her property rights without appropriate compensation under nationalisation laws adopted DATE , the entitled person has a claim under this LAW , which he or she can raise under LAW ( as amended ) .","Section CARDINAL(CARDINAL ) provides that , in order to be entitled to restitution of his or her property , a claimant must be a physical person and a citizen of the NORP and GPE whose property was ceded to the ORG in the circumstances listed in LAW . According to LAW ) , if the person whose property has been transferred to the ORG in cases specified in LAW dies before the expiry of the time period specified in LAW ) , the entitled persons , provided they are citizens of the NORP and GPE , shall be his or her siblings or in the case of decease of any of them , his or her children .","According to Section CARDINAL(CARDINAL ) , those obliged to make restitution ( \u201c mandated persons \u201d ) are the ORG or the legal entities in possession of the property on DATE on which this LAW has entered into force with certain exceptions .","According to Section CARDINAL(CARDINAL ) , if the value of the property has so increased that its price assessed on DATE of the submission of the written request by the entitled person exceeds substantially the price of the initial property , it is left at the discretion of the entitled person , whether he or she will request financial compensation under LAW or whether he or she will request the surrender of real property . If he or she insists on the surrender of the property , the entitled person shall compensate the mandated person for the difference between the CARDINAL prices specified in the preceding clause . Both prices shall be assessed in conformity with the price regulations in force on DATE of entry into force of LAW .","Section CARDINAL entitles physical persons who are under an obligation to restore property to recover the price they had paid when acquiring such property from the ORG .","Transfer of the ORG \u2019s Property to Other Persons Act No . CARDINAL\/CARDINAL [ \u201c LAW \u201d ]","According to LAW ) , this LAW lays down the conditions for the transfer of ORG property , the right to manage which is vested in ORG enterprises , ORG financial institutions and other ORG organisations or ORG property used by organisations founded by municipalities or administered by ORG ( pozemkov\u00fd fond ) of GPE .","Section CARDINAL(CARDINAL ) provides that in the case of a dispossession of the whole or part of any privatised property that occurred in a manner specified in Section CARDINAL(CARDINAL ) of LAW , the persons entitled under LAW in relation to that property may make a claim in respect of which the remedy provided for is a privatisation decision concerning that property .","According to Section CARDINAL(a ) , if property seized in a manner specified in Section CARDINAL(CARDINAL ) of LAW is not used or owned by any of the legal entities referred to in LAW of the present LAW , any redress for the violation of rights over that property shall be settled under LAW .","ORG under LAW No . CARDINAL\/CARDINAL","Section CARDINAL(CARDINAL ) provides that any purchase price fixed before DATE shall be deemed to have been recalculated at the rate of CARDINAL .","Code of Civil Procedure","According to Section CARDINAL(CARDINAL ) , the defendant can submit his or her claims against the claimant by way of a reciprocal action .","Charter of Fundamental Rights and Freedoms","LAW provides inter alia that everybody has the right to own property . The property rights of every owner are equal in the eyes of the law and benefit from the same legal protection ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106769","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2011,"docname":"CASE OF GOROBET v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 5-1;Violation of Art. 3 (substantive aspect);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["The applicant was born in DATE and lives in ORG .","On DATE at TIME the applicant was visited at his home by QUANTITY police officers , who invited him to the police station . The applicant refused in the beginning , but after being threatened with criminal prosecution for refusing to comply with legitimate police orders , he conceded .","Instead of being taken to the police station , the applicant was taken by the QUANTITY police officers to the psychiatric hospital in GPE , where he was hospitalised against his will for a period of DATE .","During DATE the applicant was kept in a room with persons suffering from serious mental disorders , some of whom could not attend to their basic needs and who intimidated him on a regular basis . He requested on several occasions that he be allowed to contact a lawyer or his family , but to no avail . Later he was transferred to a ward with patients with less serious conditions .","NORP Throughout his stay in the psychiatric hospital the applicant was administered injections which provoked in him a state similar to paralysis and as a result of which he lost consciousness . He was also forced to take a large amount of tablets on a DATE basis . He attempted to refuse to take medication ; however , he changed his mind after being threatened with a straitjacket and with being tied to his bed . According to the medical records from the hospital , the applicant received treatment against paranoid depression . The records do not contain any information concerning any risks for the applicant or for other persons posed by the applicant \u2019s condition . The records contain a consent form filled in with the applicant \u2019s name and allegedly signed by him . The applicant denied having signed such a form and submitted that it was a forgery which first appeared in his medical file after the criminal investigation had been initiated ( see paragraph CARDINAL below ) .","After being released from hospital , the applicant made official inquiries with ORG to find out whether it had authorised his forced hospitalisation . In CARDINAL letters dated DATE and DATE , ORG denied having ever received any official request for the applicant \u2019s involuntary confinement in a psychiatric hospital .","On DATE the applicant obtained from the PERSON hospital CARDINAL medical reports confirming that he had not been addicted to alcohol or drugs , and that he had not suffered from any psychiatric disorders . The report concerning the applicant \u2019s mental health was issued following his examination by a commission of CARDINAL doctors and was signed , inter alia , by a psychiatrist , ORG","NORP The applicant also requested and obtained from his local hospital a document stating that he had not been registered as a person suffering from mental disorders before DATE .","On DATE the applicant lodged a criminal complaint with ORG , asking it to investigate his case and to prosecute the persons responsible for his illegal forced hospitalisation in a psychiatric hospital and for subjecting him to medical treatment against his will . He described in detail the conditions of his hospitalisation and the medical treatment which he had received , and argued that it amounted to inhuman and degrading treatment . He submitted that his hospitalisation had been possible owing to an official document referring him for compulsory treatment issued by Doctor PERSON from the PERSON hospital . Doctor PERSON had issued that document without ever having seen the applicant in person . The document was not dated , contained the wrong social security number as regards the applicant , and stated that he was in possession of medical insurance , which was not true because he was not in fact medically insured .","In the course of the investigation , ORG heard the applicant \u2019s family doctor , who stated that before the events of DATE she had been told by the applicant \u2019s sister and mother that they had often had disputes with him and that he had threatened them with violence and even with death , and in general displayed very strange behaviour . The family doctor told the applicant \u2019s mother to see the psychiatrist ORG from the PERSON hospital . In DATE the applicant \u2019s mother told the family doctor that she had an official document from ORG referring the applicant for psychiatric treatment . The family doctor told the applicant \u2019s mother that that document was sufficient to compulsorily confine the applicant in a psychiatric hospital .","The applicant \u2019s mother told the prosecutors that starting in DATE , when the applicant had returned from a long stay in GPE where he had been employed , he began to have drinking problems and to behave inappropriately . It was the applicant \u2019s sister who went to the PERSON hospital and obtained from ORG an official document referring the applicant for psychiatric treatment .","The applicant \u2019s sister told the prosecutors that the applicant had drinking problems and exhibited very bad behaviour . She saw ORG from the PERSON hospital and asked him for an official document referring the applicant for psychiatric treatment . ORG refused to issue such a document without first seeing the applicant . Then she started crying and ORG conceded . He provided her with the document and told her to contact the family doctor in order to organise the hospitalisation .","The QUANTITY police officers who transported the applicant to the NORP psychiatric hospital stated that on DATE they had been contacted by the applicant \u2019s family doctor , who presented them with an official document referring the applicant for treatment . They took the applicant directly to the NORP psychiatric hospital and left him there .","The Prosecutor \u2019s Office also heard psychiatrist PERSON , who declared that at DATE he had been visited by a woman complaining about the aggressive behaviour of her brother , the applicant . Later the applicant was brought in for consultation by a police officer ( CARDINAL of the police officers who had arrested the applicant ) and , after a brief conversation , the doctor determined that the applicant was suffering from a delusional belief that his relatives were intending to sell his house . The doctor considered that the applicant represented a risk to his relatives and ordered his hospitalisation . The police officer took the applicant to the NORP psychiatric hospital . ORG was asked why he had issued the applicant with a document in DATE stating that he was mentally healthy . ORG answered that he had issued the applicant with such a document because the applicant had told him that he was healthy and had never received psychiatric treatment .","During the investigation , ORG requested the applicant to undergo psychiatric evaluation , in order to determine whether he was actually suffering from the mental disorder which had led to his hospitalisation . The applicant agreed in the beginning ; however , he changed his mind after learning that he had to commit himself for a DATE long in - patient examination in a psychiatric hospital .","On DATE ORG dismissed the applicant \u2019s criminal complaint on the ground that his hospitalisation had been duly ordered by Doctor PERSON , and that as a result of the applicant \u2019s refusal to undergo a medical examination , it was impossible to determine whether the diagnosis as established by Doctor PERSON had been correct or not . In so far as the consent form allegedly signed by the applicant is concerned , it appears that it was disregarded and that no one during the proceedings questioned the fact that the applicant had been hospitalised against his will .","NORP The applicant appealed against the above decision to the hierarchically superior ORG ; however , his appeal was dismissed on DATE .","On DATE the applicant appealed to ORG . He argued , inter alia , that the same psychiatrist , ORG , had issued him in DATE with a medical report stating that he did not suffer from any mental disorders and that he had not been registered as a mentally ill patient with his local hospital before DATE . He also submitted that there had been no court orders committing him to a psychiatric hospital against his will , and that his hospitalisation had therefore been unlawful and arbitrary .","On DATE ORG dismissed the applicant \u2019s appeal on the ground that he had refused to be hospitalised for an in - patient examination .","After the communication of the present case to the Government , new criminal proceedings were opened by ORG on DATE concerning the alleged unlawful actions of the NORP psychiatric hospital \u2019s medical personnel in respect of the applicant . That investigation is still pending . It does not appear from the material submitted by the Government that the investigation had progressed in any way DATE and DATE , when the Government submitted their final observations in the case .","Section CARDINAL of the Law on Psychiatric Assistance ( \u201c the LAW \u201d ) provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of LAW or in accordance with the provisions of LAW of that PERSON . In both cases , except for reasons of urgency , the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists .","Section CARDINAL of the PERSON sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will . It provides that a person suffering from a mental disorder can be hospitalised against his or her will , before a court judgment for that purpose has been issued , when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others ; when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone ; or if left untreated , the mental disorder could cause serious harm to the health of the individual concerned .","Pursuant to section CARDINAL of the PERSON , compulsory hospitalisation for treatment of a person in accordance with LAW must be decided by a court . The hospital must apply to the court for permission , indicating in the application the reasons for which hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists . Pursuant to section CARDINAL , the court examining the application must take a decision within DATE from the date on which the application was lodged , and the person concerned has the right to participate in the hearing . If the person \u2019s condition is serious and he or she can not come to the court , the judge is obliged to hold the hearing at the hospital . The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation .","Section CARDINAL of the PERSON provides , inter alia , that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request . On the other hand , a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment ."],"violated_articles":["3","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98773","languageisocode":"ENG","respondent":"MKD","branch":"ADMISSIBILITY","date":2010,"docname":"TRPESKI AND OTHERS v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":4,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicants , Mr PERSON ( \u201c the first applicant \u201d ) , PERSON ( \u201c the second applicant \u201d ) , Mr PERSON ( \u201c the third applicant \u201d ) and Mr Miroljub PERSON ( \u201c the fourth applicant \u201d ) , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively , and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG issued an operating licence to GPE a.d . GPE . Under the latter 's Act of Incorporation ( \u0414\u043e\u0433\u043e\u0432\u043e\u0440 \u0437\u0430 \u043e\u0441\u043d\u043e\u0432\u0430\u045a\u0435 \u0438 \u0440\u0430\u0431\u043e\u0442\u0435\u045a\u0435 ) , its shareholders were PERSON . GPE , a bank incorporated in GPE ( \u201c the majority shareholder \u201d ) , possessing PERCENT of the share capital ( \u0433\u043b\u0430\u0432\u043d\u0438\u0446\u0430 ) , and CARDINAL companies from the former GPE .","The case originated at the domestic level in events dating back to DATE and DATE , which took place before the entry into force of the Convention in respect of the respondent ORG on DATE .","On DATE a general meeting of shareholders of Ljubljanska Banka - Makedonska Banka a.d . GPE , which was attended by a representative of ORG , adopted the following changes to its LAW ( \u201c LAW ) ( PERSON ) : it changed the name to \u201c FAC a.d . GPE \u201d ( \u201c the Bank \u201d ) ; it specified that the first class of shares could be bearer shares ( \u0430\u043a\u0446\u0438\u0438 \u043d\u0430 \u0434\u043e\u043d\u043e\u0441\u0438\u0442\u0435\u043b ) and registered shares ( \u0430\u043a\u0446\u0438\u0438 \u043d\u0430 \u0438\u043c\u0435 ) ; it decided that shareholders could ask the ORG to convert registered shares into bearer shares ; and it agreed that bearer shares could be transferred merely by a handover ( \u043f\u0440\u0435\u0434\u0430\u0432\u0430\u045a\u0435 ) . ORG had already approved these amendments on DATE . According to a stamp affixed to it , this latter decision was received by ORG .","On DATE the majority shareholder asked the ORG , under its amended Statute , to convert its shares into bearer shares and to register them as such in the shareholders ' register ( \u0430\u043a\u0446\u0438\u043e\u043d\u0435\u0440\u0441\u043a\u0430 \u043a\u043d\u0438\u0433\u0430 ) ( \u201c the register \u201d ) .","On DATE , the majority shareholder concluded CARDINAL separate agreements ( \u201c agreements transferring shares and the corresponding rights ( a full endorsement \u201d ) \u0434\u043e\u0433\u043e\u0432\u043e\u0440 \u0437\u0430 \u043f\u0440\u0435\u043d\u043e\u0441 \u043d\u0430 \u0430\u043a\u0446\u0438\u0458\u0430 \u0438 \u043f\u0440\u0430\u0432\u0430 \u043e\u0434 \u0430\u043a\u0446\u0438\u0458\u0430 ( \u043f\u043e\u043b\u043d \u0438\u043d\u0434\u043e\u0441\u0430\u043c\u0435\u043d\u0442 ) ) transferring its shares in the ORG to CARDINAL companies incorporated in the former GPE ( \u201c the buyers \u201d ) . Under the agreements , the majority shareholder undertook to transfer title to the shares , as well as the corresponding rights and obligations , to the buyers in exchange for payment . The majority shareholder also authorised the first applicant , who had meanwhile become Chief Executive of the ORG , to collect its bearer shares on its behalf and to execute the transfer in accordance with the above agreements .","The buyers concluded further agreements of the same type ( \u201c the first set of agreements \u201d , \u0434\u043e\u0433\u043e\u0432\u043e\u0440 \u0437\u0430 \u043f\u0440\u0435\u043d\u043e\u0441 \u043d\u0430 \u0430\u043a\u0446\u0438\u0458\u0430 \u0438 \u043f\u0440\u0430\u0432\u0430 \u043e\u0434 \u0430\u043a\u0446\u0438\u0458\u0430 ( \u043f\u043e\u043b\u043d \u0438\u043d\u0434\u043e\u0441\u0430\u043c\u0435\u043d\u0442 ) ) , valid from DATE , transferring to the first applicant the title to the shares obtained from the majority shareholder . The second , third and fourth applicants stated that the first applicant had paid for the bearer shares on their behalf .","Finally , the first applicant transferred a part of these shares under other agreements for full endorsement ( \u201c the second set of agreements \u201d , \u0434\u043e\u0433\u043e\u0432\u043e\u0440 \u0437\u0430 \u043f\u0440\u0435\u043d\u043e\u0441 \u043d\u0430 \u0430\u043a\u0446\u0438\u0458\u0430 \u0438 \u043f\u0440\u0430\u0432\u0430 \u043e\u0434 \u0430\u043a\u0446\u0438\u0458\u0430 ( \u043f\u043e\u043b\u043d \u0438\u043d\u0434\u043e\u0441\u0430\u043c\u0435\u043d\u0442 ) ) to the remaining applicants and Mr GPE This became valid on DATE .","On DATE the ORG received the bearer shares in hard copy from the then authorised printing company .","On DATE , the first applicant collected the printed shares from the ORG . He did so under the authorisation described above .","He handed over the printed shares to the buyers . The statements of the buyers ' managers attested to that fact .","On DATE the buyers handed over the bearer shares to the applicants and Mr D.G. That fact was supported by statements from the buyers ' managers . After these transactions , the applicants ' individual share in the ORG 's capital was in the following proportion : the first applicant had PERCENT ; the second applicant PERCENT ; the third applicant PERCENT ; and the fourth applicant PERCENT .","The applicants did not seek registration of their shares . According to extracts from the register dated DATE , DATE and CARDINAL DATE respectively , the structure of the ORG 's shareholders remained unchanged during that period , namely the majority shareholder possessed PERCENT of the ORG 's capital .","On CARDINAL and DATE respectively , ORG carried out a supervisory control of the ORG in order to determine its shareholder structure . The supervisory report stated , inter alia , that :","\u201c ... According to the ORG 's register of shareholders , the largest shareholder remains PERSON . GPE possessing PERCENT of the ORG 's share capital . Under LAW [ Statute ] adopted on DATE , PERSON . PERSON asked for its shares to be issued as bearer shares ... In DATE the shares were printed . PERSON . PERSON authorised Mr PERSON , the ORG 's Chief Executive , to collect its shares ( once printed ) ... It can therefore be concluded that PERCENT of the ( ORG 's ) share capital consists of bearer shares which makes it impossible to precisely determine the ORG 's share capital ... It is like this because bearer shares can be owned by anyone who physically possesses them . The owner of such shares is , for all practical purposes , unknown ... \u201c","Relying on the above control , on DATE the Governor of ORG concluded that the majority of the ORG 's shares were bearer shares and that consequently , the ORG 's shareholder structure could not be determined . He therefore asked the ORG to comply with the then Act on Banks and Savings Institutions of DATE ( see \u201c Relevant domestic law \u201d below ) and to convert its bearer shares into registered shares . The ORG was asked to comply within DATE of the date that the above Act came into force , that is by DATE .","At the applicants ' request , on DATE , the ORG converted their bearer shares into registered shares and registered them as shareholders . According to the entry in the register , the applicants had obtained possession of the shares on DATE on the basis of a ( sales ) transaction of the same date . It also provided them with registered share certificates ( \u043f\u043e\u0442\u0432\u0440\u0434\u0430 \u0437\u0430 \u043e\u0431\u0438\u0447\u043d\u0430 \u0430\u043a\u0446\u0438\u0458\u0430 \u043d\u0430 \u0438\u043c\u0435 ) .","ORG noted the change of title to PERCENT of the ORG 's capital made under the sales agreements of DATE described above . It stated that the ORG had not sought approval for that change , as required under LAW ( see \u201c Relevant domestic law \u201d below ) . The ORG also failed to notify it about the sales agreements although the senior management had been aware of them . The report also stated that the majority shareholder 's request of DATE for conversion of its registered shares had been received by ORG DATE . In such circumstances , the majority shareholder had no right to seek conversion given that it had already transferred the title to its registered shares to the buyers , under the sales agreements of DATE .","On DATE the Solicitor General ( NORP \u043f\u0440\u0430\u0432\u043e\u0431\u0440\u0430\u043d\u0438\u0442\u0435\u043b ) brought a civil action against the applicants , the buyers and Mr PERSON ( \u201c the defendants \u201d ) asking ORG ( \u201c the first - instance court \u201d ) to declare null and void the first and second sets of agreements . He also asked the court to issue an interim measure ( \u0432\u0440\u0435\u043c\u0435\u043d\u0430 \u043c\u0435\u0440\u043a\u0430 ) preventing the applicants and Mr PERSON from disposing of the shares . ORG claimed that the first applicant , under the first set of agreements , had unlawfully obtained possession of PERCENT of the ORG 's capital without having sought the approval of ORG , as required under LAW ; that the amended version of the LAW , under which the shares had been transferred , was unlawful since ORG approval had been received by ORG DATE ; and that the first applicant could not have disposed of the shares under the second set of agreements . On an unspecified date , several companies , the ORG 's shareholders , ( \u201c the other shareholders \u201d ) joined ORG claim .","On DATE the first - instance court issued an interim order preventing the applicants and Mr PERSON from disposing of the shares . This decision was upheld by a decision of ORG dated DATE .","On DATE the first - instance court declared the first and second sets of agreements null and void ( \u043d\u0438\u0448\u0442o\u0432\u043d\u0438 ) . It also granted a pre - emptive right ( \u043f\u0440\u0430\u0432\u043e \u043d\u0430 \u043f\u0440\u0432\u0435\u043d\u0441\u0442\u0432\u0435\u043d\u043e \u043a\u0443\u043f\u0443\u0432\u0430\u045a\u0435 ) to the other shareholders , claimants in these proceedings , to purchase the shares under the price set in the agreements . It decided not to grant such right to the ORG .","The first - instance court established that on DATE , the majority shareholder had transferred to the buyers , under CARDINAL separate agreements , part of its shares amounting to PERCENT of the ORG 's capital . On DATE , the buyers and the first applicant concluded the first set of agreements , transferring these shares to him . Under the second set of agreements , the first applicant transferred part of these shares to the remaining applicants and Mr GPE The court ruled that , given the absence of a notification or approval by ORG , as required under the then banking rules , the first applicant , under the first set of agreements , had unlawfully obtained possession of PERCENT of the ORG 's capital .","It further held that these transactions had been carried out under the amended Statute , which could not be regarded as having been in force at the relevant time , since the Governor 's approval of DATE had been received by ORG DATE . ORG had not been provided with the decision amending the Statute , but only with a consolidated version ( \u043f\u0440\u0435\u0447\u0438\u0441\u0442\u0435\u043d \u0442\u0435\u043a\u0441\u0442 ) .","On DATE ORG upheld the first - instance court 's decision in respect of the first and second sets of agreements . It dismissed the other shareholders ' claim for a pre - emptive right to purchase shares . It also dismissed the applicants ' arguments that bearer shares were to be regarded as having been transferred by a mere handover and that a written agreement had not been required . It reiterated the first - instance court 's finding that the first applicant , under the first set of agreements , had unlawfully obtained PERCENT of the ORG 's capital .","On DATE ORG dismissed appeals by the applicants on points of law ( \u0440\u0435\u0432\u0438\u0437\u0438\u0458\u0430 ) . It reiterated the facts established by the lower courts : that the sales transactions described above had been carried out under the amended Statute which , due to the late receipt of the Governor 's approval , had not been in force at the relevant time ; that the first applicant , under the first set of agreements , had obtained title to PERCENT of the ORG 's capital ; and that ORG had not been notified by the ORG or first applicant nor , as required under the then banking rules , sought approval for that fact .","This decision was served on the applicants on DATE .","On DATE the ORG announced a public call to its shareholders requiring them to convert share certificates into ordinary shares with a different nominal value .","On CARDINAL and DATE respectively , the applicants asked for their shares to be converted in accordance with the public announcement described above . On DATE the ORG refused their requests , relying on the following : i ) ORG decision of DATE , ii ) ORG approval of DATE to CARDINAL of the buyers to obtain possession of PERCENT of the ORG 's capital and iii ) submissions by ORG ( GPE \u0437\u0430 \u0445\u0430\u0440\u0442\u0438\u0438 \u043e\u0434 \u0432\u0440\u0435\u0434\u043d\u043e\u0441\u0442 ) dated DATE according to which the ORG , under the court decision of DATE , should register the buyers as shareholders .","On DATE the applicants brought a civil action against the ORG asking for recognition of title to the shares as noted in the share certificates of DATE . They claimed that the first and second sets of agreements had not been a legal ground for obtaining title to the bearer shares , as the first class of shares issued by the ORG . They argued that the bearer shares had been transferred to them by a mere handover , as specified under the then applicable rules , after DATE , the date of their production . The bearer shares therefore had not existed at the time when the agreements had been concluded . On DATE , the date when they had been provided with the share certificates , none of the applicants ' individual share in the ORG 's capital had exceeded the statutory threshold which would have required approval by ORG . They also asked the court to issue an interim measure preventing the ORG from disqualifying them as shareholders .","On DATE the first - instance court inspected the ORG 's register . According to the record , the buyers and not the applicants were registered in the register as the ORG 's shareholders . Under ORG decision of DATE , the dates of entry in the register were indicated as CARDINAL October and DATE respectively .","On DATE , after it had established the facts concerning the agreements of CARDINAL DATE , the first - instance court dismissed the applicants ' claim arguing that shares were to be regarded as movable assets ( \u043f\u043e\u0434\u0432\u0438\u0436\u043d\u0430 \u0442\u0435\u043b\u0435\u0441\u043d\u0430 \u0441\u0442\u0432\u0430\u0440 ) and that there was a close link between shares and corresponding rights attached thereto . It held that the substantive property law ( \u0441\u0442\u0432\u0430\u0440\u043d\u043e \u043f\u0440\u0430\u0432\u043e ) applied to the acquisition , possession and transfer of shares and that contract and tort law ( \u043e\u0431\u043b\u0438\u0433\u0430\u0446\u0438\u043e\u043d\u043e \u043f\u0440\u0430\u0432\u043e ) applied to the corresponding rights and obligations . It ruled , accordingly , that the lawfulness of possession of a share depended on the existence of a valid legal ground and the subjective conviction of the holder .","The court held that the applicants did not have lawful possession of the bearer shares because the first and second sets of agreements had been declared null and void . They had not acted in good faith when obtaining possession of those shares because the first applicant had collected them from the ORG on DATE on behalf of the majority shareholder after they had been printed . Finally , in the absence of a valid legal ground , the applicants could not have obtained possession of the shares by a mere handover .","The court rejected the applicants ' request for an interim measure , deeming it to have been withdrawn . It further advised the applicants to seek reopening of the proceedings if they were successful in the first proceedings .","On DATE ORG dismissed the applicants ' appeal , finding no grounds to depart from the established facts and the reasons given by the first - instance court . It reaffirmed that on DATE the applicants did not have actual possession of the bearer shares . The court concluded that the applicants had obtained title to the shares under the agreements which had been declared null and void .","On DATE ORG dismissed the applicants ' appeal on points of law of DATE , stating that , given the absence of a valid legal ground for their transfer , they did not have lawful possession of the shares . In this connection , it referred to the first and second sets of agreements being declared null and void . This decision was served on the applicants on DATE .","In DATE the Governor of ORG revoked the first applicant 's licence as a bank manager . That decision was subject to review and was finally superseded by a decision of ORG of DATE limiting the prohibition to exercise his profession at the ORG .","On DATE ORG declared section CARDINAL \u00a7 CARDINAL of the then valid LAW ( ORG \u0437\u0430 \u043f\u043e\u043b\u0438\u0442\u0438\u0447\u043a\u0438\u0442\u0435 \u043f\u0430\u0440\u0442\u0438\u0438 ) , under which political parties could earn income from their own assets ( \u043f\u0440\u0438\u0445\u043e\u0434\u0438 , \u043e\u0434 \u0441\u043e\u043f\u0441\u0442\u0432\u0435\u043d \u0438\u043c\u043e\u0442 ) , unconstitutional . The court found that that provision was imprecise and contrary to the rule of law and worked against the market and entrepreneurship and the functions and objectives of political parties . That decision was given in response to a request by a political party ( U.br.CARDINAL\/CARDINAL and CARDINAL , published in ORG no . CARDINAL\/CARDINAL ) .","Section CARDINAL of this LAW , as valid at that time , provided that securities ( \u0445\u0430\u0440\u0442\u0438\u0438 \u043e\u0434 \u0432\u0440\u0435\u0434\u043d\u043e\u0441\u0442 ) could be issued , inter alia , as registered or bearer .","Section CARDINAL of this Act provided that an obligation attached to securities was to be regarded as transferred with the transfer of the securities .","In accordance with section QUANTITY , CARDINAL and DATE , the rights attached to securities could be obtained by their lawful holder . Any holder of a bearer share was to be regarded as lawful . A diligent holder of a bearer share would lawfully possess it even if the company or its former holder had yielded procession of it unwillingly .","Under section CARDINAL the right of a bearer share is transferred by a mere handover .","Section CARDINAL \u00a7 CARDINAL provided that the company , in response to a request and at the holder 's expense , can convert the bearer share into a registered share .","This act was valid until DATE when the new LAW came into force .","In accordance with section CARDINAL of this Act , as valid at that time , registered or bearer written certificates would be regarded as securities .","Section CARDINAL \u00a7 CARDINAL of this Act provided that corresponding rights and obligations could be obtained by transferring the securities from the company to the buyer or his or her representative .","Section CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL provided that a registered share was regarded as having been transferred by a full endorsement ( \u043f\u043e\u043b\u043d \u0438\u043d\u0434\u043e\u0441\u0430\u043c\u0435\u043d\u0442 ) unless it was explicitly stated that it could not be transferred . A bearer share was regarded as having been transferred by a mere handover .","This Act was replaced by LAW of DATE ( see below ) .","In accordance with section CARDINAL of the then valid LAW , securities could be registered or bearer .","Under section CARDINAL \u00a7 CARDINAL , bearer securities were transferred by a mere handover .","In accordance with section QUANTITY , there were only registered shares . Bearer shares were null .","This Act was replaced by LAW and LAW DATE .","Section CARDINAL of this Act required that the Governor of ORG must approve any acquisition of an individual share of PERCENT of a bank 's capital .","Pursuant to section DATE , a bank was required to notify ORG if an individual share exceeded PERCENT .","In case of non - compliance , the bank may be fined ( section CARDINAL ) .","Under section CARDINAL \u00a7 CARDINAL of this Act , banks could only issue registered shares .","In accordance with section CARDINAL-b , banks were required to adjust their operation within DATE of the LAW entering into force .","Section CARDINAL provided that that Act would enter into force DATE after being published in ORG .","Section CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of this Act provided that registered shares were to be recorded in the register of shareholders . Every person registered in the register of shareholders was to be regarded as a shareholder ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97815","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2010,"docname":"CASE OF KRUMPHOLZ v. AUSTRIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in PERSON .","On DATE at TIME the car of which the applicant is the registered keeper was recorded by police officers using a radar speed detector travelling at a speed of CARDINAL k.p.h . , thus exceeding the speed limit of CARDINAL k.p.h .","On DATE the Graz - Umgebung District Authority ( Bezirkshauptmannschaft ) ordered the applicant to disclose within DATE the full name and address of the person who had been driving his car at the material time . The order referred to section CARDINAL(CARDINAL ) of the Motor Vehicles Act ( GPE ) as its legal basis . The applicant did not reply .","On DATE the Graz - Umgebung District Authority issued a provisional penal order ( Strafverf\u00fcgung ) . Relying on sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(a ) of FAC , it sentenced the applicant to pay a fine of CARDINAL euros ( ORG ) with DATE imprisonment in default for speeding . In addition , relying on sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW , it sentenced the applicant to pay a fine of LAW with DATE imprisonment in default for failure to comply with the order of DATE to disclose the driver 's identity .","The applicant lodged an objection against this decision . On DATE he filed submissions stating that he had not been driving his car but that he refused to disclose the driver 's identity as he considered this obligation to be at variance with LAW .","Subsequently , the Graz - Umgebung District Authority heard evidence from the police officer who had initiated the proceedings for speeding . On DATE the statement of the police officer , who had confirmed that the radar detector , which had been duly calibrated , had measured a speed of CARDINAL k.p.h . and that he had recorded the number of the car , was communicated to the applicant and he was requested to submit his defence in respect of the speeding offence . At the same time he was informed that the proceedings for failure to disclose the identity of the driver had been discontinued .","NORP By letter of DATE the applicant , represented by counsel , maintained his defence .","On DATE the Graz - Umgebung District Authority dismissed the applicant 's objection and issued a penal order ( Strafverf\u00fcgung ) in which it convicted him of speeding and imposed a fine of ORG CARDINAL with DATE imprisonment in default . It also ordered him to pay procedural costs in the amount of LAW .","The authority noted that the applicant had refused to disclose who had driven his car on DATE when it had been recorded exceeding the speed limit . The authority therefore concluded that he had himself been the driver . It observed that this presumption was based on the case - law of ORG , which had considered that in a case in which the registered keeper of a car did not disclose the driver 's identity and did not submit any exculpating evidence in his defence , the authority could reasonably conclude that the keeper himself had been the driver .","The applicant appealed to ORG ( Unabh\u00e4ngiger Verwaltungssenat ) . He maintained that the obligation to disclose the identity of the driver pursuant to section CARDINAL(CARDINAL ) was incompatible with LAW , as was the drawing of inferences from the mere fact that he had refused to disclose the driver 's identity . In this connection the applicant referred to PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) . In addition , he reiterated that he had not been driving his car on CARDINAL DATE and had not even been in GPE at the relevant time . He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information .","On DATE ORG dismissed the appeal . It dispensed with a hearing by virtue of section CARDINALe(CARDINAL ) of LAW ( GPE ) .","ORG reasoning reads as follows :","\u201c In accordance with the principle of establishment of the facts of the authorities ' own motion for the purposes of LAW ( ORG ) , the material truth must be ascertained ; in this regard the authorities are not bound by the facts submitted by the parties , but must establish the true facts by taking the necessary evidence . Under section CARDINAL(CARDINAL ) of the ORG the authorities must assess freely , giving careful consideration to the results of the investigation , whether or not a given fact is to be accepted as proven . On the basis of the principle that the court controls the conduct of the proceedings , articulated in section CARDINAL of the ORG , the obligation to establish the facts lies with the authorities ; this does not , however , dispense the party from the obligation to contribute to the establishment of the relevant facts . The obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him , without submitting equally specific statements in reply and adducing the relevant evidence ... Nor can the appellant in the present case be released from this obligation by relying on LAW . On the contrary , the fact of refusing to name the driver of the vehicle amounts to an infringement of the obligation to cooperate as set forth above . Hence , merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant 's obligation to contribute to the establishment of the relevant facts .","In accordance with section CARDINAL(CARDINAL ) of the ORG the authorities therefore presume that the appellant himself was the driver . His statements are to be regarded as an attempt to justify his conduct . It has not been established during the proceedings , nor has the applicant seriously asserted in substance , that he could not have contributed to the establishment of the facts without incriminating himself and could not have been expected to do so .","The offence with which the appellant was charged is therefore to be regarded as subjectively and objectively proven and imputable to him . His appeal submissions concerning LAW are unfounded in relation to the offence with which he was charged . \u201d","Turning to the fixing of the sentence , ORG noted that the applicant had been charged with exceeding the speed limit substantially , by CARDINAL k.p.h . As excessive speed on motorways was often the reason for serious or very serious traffic accidents , the imposition of a fine of ORG CARDINAL had been appropriate .","The applicant lodged a complaint with ORG ) . Referring to PERSON ( cited above ) , he asserted that he had been convicted solely on account of the fact that he had made use of his right to remain silent . ORG had not been in possession of any evidence to indicate that he was the driver . Moreover , it had disregarded his defence that he had not been in GPE at the material time and was unable to provide the name of the driver as he had not kept any records . These procedural deficiencies were aggravated by the fact that ORG had failed to hold a hearing .","On DATE the ORG declined to examine the applicant 's complaint for lack of prospects of success .","On DATE ORG declined to examine the applicant 's complaint by virtue of section CARDINALa of LAW , since the amount of the penalty did not exceed LAW and no important legal issue was at stake .","Section CARDINALe of LAW ( ORG - gesetz ) reads as follows :","\u201c ( CARDINAL ) ORG shall hold a hearing in public .","...","( CARDINAL ) ORG may dispense with an appeal hearing if","NORP the appeal is based solely on an incorrect legal assessment , or","NORP the appeal is directed solely against the amount of the penalty , or","NORP the decision being appealed against imposed a financial penalty not exceeding QUANTITY","NORP the appeal is directed against a procedural decision","and no party has requested that a hearing be held . Any request by the appellant for a hearing to be held must be made in the appeal itself ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79955","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF ANDREY FROLOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 3 (substantive aspect)","judges":"Christos Rozakis","text":["The applicant was born in DATE and lived until his arrest in GPE . He is now serving a prison sentence in GPE .","On DATE the applicant was arrested by police officers , taken to a police station and allegedly beaten up . He was released on DATE . The applicant says that he complained to a prosecutor about the beatings on DATE .","On DATE the applicant was arrested on suspicion of robbery and taken to police station no . CARDINAL in GPE , where he alleges he was seriously assaulted by police officers .","From DATE the applicant was detained in a cell in police station no . CARDINAL . On DATE he was transferred to detention facility no . IZ-CARDINAL\/CARDINAL in GPE , known as \u201c GPE \u201d .","In DATE the applicant asked GPE to grant him an amnesty and discontinue the criminal proceedings . On DATE ORG refused his request , holding that it was for the trial court to examine whether the applicant qualified for an amnesty .","On DATE GPE appointed the applicant 's mother to represent him . Following her appointment , she had several meetings with the applicant in the detention facility . Prison warders were always present at the meetings .","At the trial the applicant was represented by his mother and PERSON , of counsel . They submitted evidence and made a successful application to GPE to call additional witnesses and exclude certain items of evidence presented by the prosecution .","On DATE GPE found the applicant guilty of several counts of robbery , establishing a criminal enterprise and the aggravated offence of selling criminally acquired property and sentenced him to DATE imprisonment . It based its judgment on the applicant 's partial confession in open court , the oral evidence of the co - defendants , victims and witnesses at the trial , expert opinions and real evidence . In determining the sentence , ORG took into consideration the assistance the applicant had given to the investigating authorities in solving the case and identifying other participants in the criminal enterprise .","The applicant appealed against the judgment of DATE , complaining , in particular , that ORG had not applied an amnesty law .","On DATE ORG of GPE upheld the judgment of DATE , endorsing the reasons given by ORG . It also held that GPE had lawfully refused to apply the amnesty law of DATE to the applicant because of the especially serious nature of his offences .","From DATE to CARDINAL DATE the applicant was held in detention facility no . IZ-CARDINAL\/CARDINAL in GPE .","According to a certificate issued on DATE by the facility governor , and produced by the Government , the applicant was held in CARDINAL different cells during the reference period . Each cell measured QUANTITY and had QUANTITY . According to the Government , no information on the number of inmates in the cells was available as the documents had been destroyed . They further submitted that the applicant had at all times had TIME ' sleep .","The applicant did not dispute the cell measurements or the number of bunks . However , he alleged that he had usually shared the cells with CARDINAL to CARDINAL detainees . Given the lack of beds , inmates slept in shifts .","The Government , relying on further certificates issued on DATE by the facility governor , submitted that all cells were equipped with a lavatory pan and sink . The pan was separated from the living area by a curtain . According to the Government , the pan was \u201c in a satisfactory sanitary condition \u201d . The cells were disinfected once DATE . Inmates were allowed to take a shower once DATE . They were provided with bedding at the same interval . The cells were naturally ventilated through the windows which were not covered with metal shutters . Each cell also had a ventilating shaft . The Government further stated that the temperature in the cells was \u201c normal \u201d . Additional window - frames with glass were inserted in DATE . Central heating devices were installed in the cells , which were also equipped with lamps which functioned DATE and TIME .","The applicant disagreed with the ORG 's description and submitted that the sanitary conditions were unsatisfactory . Inmates had to dry their laundry indoors , creating excessive humidity in the cells . The cells were dimly lit . Relatives provided inmates with lamps . Windows were not glazed and were covered with thick metal bars that blocked access to natural light and fresh air . It was cold in DATE and in DATE it was hot , stuffy and excessively damp inside . The artificial ventilation system was blocked with stones and garbage and was never cleared up .","The applicant also contested the ORG 's description of the toilet facilities . According to him , inmates had to make curtains to separate the lavatory pan from the rest of the cell . The curtains were frequently removed by warders . ORG were allowed to take a shower once a week but no toiletries were distributed . The entire cell was afforded TIME to shower , although there was CARDINAL shower heads . The applicant added that he had been provided with bedding when he had entered the facility on DATE , but it had not been changed since . The applicant 's mother had provided him with replacement bedding when it had worn out .","The Government asserted that \u201c the applicant was fed in accordance with the established legal norms \u201d . Medical personnel at the facility checked the quality of the food CARDINAL times a day and made entries in registration logs .","The applicant submitted that the food was of an extremely low quality and in scarce supply . Meat and eggs were not provided despite the fact that they had been included in the detainees ' DATE diet under Government regulations .","The Government submitted that the applicant had CARDINAL TIME walk DATE .","NORP The applicant did not comment on this .","On his admission to the detention facility the applicant was given an X - ray examination . In the course of a check - up , tuberculosis changes in the right lung were detected . The applicant was placed in a special cell for further examinations and treatment and then , after being diagnosed with infiltrative tuberculosis of the upper lobe of the right lung , was transferred to the tuberculosis division .","The parties disputed the treatment that the applicant had received in the facility . According to a certificate of CARDINAL DATE issued by the facility governor and submitted by the ORG , the applicant was examined by a doctor at DATE intervals and had chest X - rays DATE . The Government gave a detailed description of the treatment the applicant had been provided with , including the type of medicine , dose and frequency . They also furnished a copy of the applicant 's medical record and medical certificates . The medical certificates indicate that the applicant is now considered to have clinically recovered from the tuberculosis .","The applicant argued that he was not adequately treated after he was discovered to be suffering from tuberculosis . His mother provided the necessary medicines because they had not been available in the facility . Following several complaints to various officials , the applicant started to receive treatment and his health improved .","On DATE the applicant complained to ORG of GPE about the inadequate conditions of his detention , his poor state of health and the authorities ' failure to grant him an amnesty . ORG sent the applicant 's complaint to ORG .","On DATE ORG of ORG sent a letter to the applicant informing him that his complaints had been examined and found to be unsubstantiated .","On DATE the applicant complained to ORG of ORG that he was being held in appalling conditions . The outcome of those proceedings is unclear .","Article CARDINAL \u00a7 CARDINAL of the NORP LAW establishes the offence of robbery . LAW makes it an aggravating factor for the robbery to be committed by a criminal enterprise or a person who has already been convicted of theft or extortion . Robbery under LAW is punishable by a maximum sentence of DATE imprisonment and confiscation of property . Article CARDINAL \u00a7 CARDINAL establishes criminal liability for the use of actual or threatened force against another in order to commit a theft . Under Article CARDINAL \u00a7 CARDINAL such an offence committed by a criminal enterprise or a person who has been convicted of extortion or theft is punishable by a maximum sentence of DATE imprisonment . Under LAW the unlawful sale of criminally acquired property by a group of individuals or a person who has been convicted of a theft , extortion or the sale of criminally acquired property is punishable by DATE imprisonment . Establishing a criminal enterprise is punishable under LAW by a maximum of DATE imprisonment .","Under LAW of LAW Criminal Code consecutive sentences are imposed upon a defendant who is convicted at the same time of several distinct offences ( cumulative offences ) . LAW provides that the final sentence for cumulative offences , should not exceed DATE imprisonment .","Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .","Under LAW ( Federal Law no . CARDINAL of DATE ) detainees are entitled to lodge , inter alia , with a court , petitions and complaints concerning violations of their rights . Article CARDINAL provides that such complaints addressed to various ORG and municipal bodies and NGOs must be sent through the detention facility authorities . ORG addressed to a prosecutor , a court or any other ORG body supervising the detention facility are not subjected to censorship and are sent to the addressee in a closed envelope .","ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows :","It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .","When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .","...","The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG 's delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .","...","As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private \u201c because they know that all complaints usually pass through the colony 's administration \u201d .","In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75313","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF DUDEK v. POLAND","importance":4,"conclusion":"No violation of Art. 5-3;Remainder inadmissible","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant was arrested by the police . On DATE ORG ( S\u0105d Rejonowy ) ordered that the applicant be remanded in custody in view of the reasonable suspicion that , acting in an organised gang , he had been involved in the traffic of human beings and narcotics , had committed robberies and had derived profits from prostitution . The court considered that , given the fact that the applicant had been living in GPE , there was a real risk that he might go into hiding . In addition , it found that the case was complex as it concerned an organised criminal group and that , once released , the applicant might tamper with evidence or otherwise obstruct the proceedings .","The applicant appealed against the detention order . However , on DATE ORG ( PERSON ) dismissed the appeal .","On DATE and DATE the ORG prolonged the applicant \u2019s detention . The court repeated grounds given previously : the reasonable suspicion that he had committed the offences , the severity of the anticipated sentence , the complexity of the case and the risk that the applicant might go into hiding as he had no permanent residence in GPE . His appeals against both decisions were dismissed .","On DATE the applicant and his accomplices were indicted before the ORG .","On DATE , the ORG again prolonged the applicant \u2019s detention until DATE . It reiterated the grounds that had been stated in the previous decisions .","On DATE the ORG dismissed his applications for release reiterating the previously given grounds for detention .","On DATE the ORG held the first hearing . Subsequently , several hearings were held , and the court fined the witnesses who failed to appear . The applicant and his lawyer were present at those hearings .","Subsequently , the applicant \u2019s detention on remand was prolonged and his applications for release dismissed .","On DATE ORG ( S\u0105d Apelacyjny ) , on the application of the ORG , further prolonged the applicant \u2019s detention . The court repeated the grounds originally given and stressed the fact that the case concerned an organised criminal gang .","On DATE the ORG gave judgment with respect to the applicant and CARDINAL co - accused . The applicant was convicted as charged and sentenced to DATE imprisonment . The applicant requested a reasoned judgment to be prepared to enable him to lodge an appeal .","On DATE the applicant was released from detention .","On DATE ORG partly allowed his appeal . The applicant was acquitted of the charges of being a member of an organised criminal group . The appellate court further quashed and remitted the part of ORG judgment which concerned his conviction for helping in the illegal crossing of the NORP borders and in the trading in human beings . The court upheld the remaining part of the impugned judgment , which concerned the running by the applicant of a night club and possession of cannabis , and sentenced the applicant to one year and CARDINAL months\u2019 imprisonment .","The applicant submitted that due to a mistake of his lawyer , he did not lodge a cassation appeal against this judgment . The judgment is final .","The remaining part of the proceedings , which was remitted by ORG , is pending .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . The other measures are bail ( por\u0119czenie maj\u0105tkowe ) , police supervision ( doz\u00f3r policji ) , guarantee by a responsible person ( por\u0119czenie osoby godnej zaufania ) , guarantee by a social entity ( por\u0119czenie spo\u0142eczne ) , temporary ban on engaging in a given activity ( zawieszenie oskar\u017conego w okre\u015blonej dzia\u0142alno\u015bci ) and prohibition to leave the country ( zakaz opuszczania kraju ) .","Article CARDINAL \u00a7 CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :","\u201c Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused \u2019s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . \u201d","Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :","\u201c 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 his identity can not be established or when he has no permanent abode [ in GPE ] ;","( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;","NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years\u2019 imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . \u201d","The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :","\u201c CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . \u201d","Article CARDINAL , in its relevant part , reads :","\u201c CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d","The DATE Code not only sets out maximum statutory timelimits for detention on remand but also , in LAW , lays down that the relevant court \u2013 within those time - limits \u2013 must in each detention decision determine the exact time for which detention shall continue .","Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :","\u201c CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .","NORP If , due to the particular circumstances of the case , an investigation can not be terminated within the term referred to in paragraph CARDINAL , the court of first instance competent to deal with the case may \u2013 if need be and on the application made by the [ relevant ] prosecutor \u2013 prolong detention for a period [ or periods ] which as a whole may not exceed DATE .","The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .","Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . \u201d","On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57947","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1995,"docname":"CASE OF TOLSTOY MILOSLAVSKY v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 10;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings;Lack of jurisdiction (injunction to State)","judges":"C. Russo;John Freeland;R. Pekkanen","text":["ORG Count PERSON , a NORP citizen , lives in GPE , GPE , in GPE . He is a historian .","ORG In DATE a pamphlet written by the applicant and entitled \" War Crimes and the Wardenship of Winchester College \" was circulated by Mr PERSON to parents , boys , staff and former members of the school as well as to Members of ORG , Members of ORG and the press . Mr LOC bore a grievance against the Warden of ORG , Lord PERSON , at the time Chairman of an insurance company , concerning an insurance claim . The pamphlet included the following statements :","\" DATE some CARDINAL GPE and NORP prisoners - of - war and refugees were handed over to NORP and ORG forces as a result of an agreement made with ORG administering occupied GPE . They included a large proportion of women , children , and even babies . The majority of LOC officers and their families handed over held ORG passports or those of the NORP countries in which they had found refuge after being evacuated from GPE by their NORP and NORP Allies in DATE , and were hence not liable to return under the terms of LAW , which related only to NORP citizens .","...","As was anticipated by virtually everyone concerned , the overwhelming majority of these defenceless people , who reposed implicit trust in NORP honour , were either massacred in circumstances of unbelievable horror immediately following their handover , or condemned to a lingering death in NORP gaols and forced labour camps . These operations were achieved by a combination of duplicity and brutality without parallel in NORP history since the Massacre of Glencoe . Outside Lienz may be seen DATE a small LOC cemetery , whose tombstones commemorate men , women and children shot , clubbed , or bayoneted to death by NORP troops .","...","The man who issued every order and arranged every detail of the lying and brutality which resulted in these massacres was Brigadier PERSON , Chief of Staff to General PERSON 's CARDINAL ORG , subsequently ennobled by PERSON as the CARDINALst Baron PERSON . Since DATE he has been Warden of ORG , one of the oldest and most respected of NORP public schools . Whether Lord PERSON is an appropriate figure for such a post is primarily a matter for the College to decide . But it is also surely a legitimate matter of broader public concern that a man responsible for such enormities should continue to occupy a post of such honour and prominence within the community , in particular one which serves as exemplar for young people themselves likely DATE to achieve high office and responsibility .","The truth is , however , that Lord PERSON knows every one of his pleas to be wholly or in large part false . The evidence is overwhelming that he arranged the perpetration of a major war crime in the full knowledge that the most barbarous and dishonourable aspects of his operations were throughout disapproved and unauthorised by the higher command , and in the full knowledge that a savage fate awaited those he was repatriating . Those who still feel that a man with the blood of CARDINAL men , women and children on his hands , helpless charges whom ORG was making every attempt to protect , is a suitable Warden for Winchester might care to ask themselves ( or Lord PERSON , if they can catch him ) the following questions :","...","Lord PERSON has been repeatedly charged in books and articles , by press and public , with being a major war criminal , whose activities merit comparison with those of the worst butchers of NORP GPE or NORP GPE ... \"","Lord PERSON instituted proceedings against Mr LOC for libel in ORG ( ORG ) . The applicant was subsequently joined to these proceedings at his own request . The defendants pleaded \" justification \" and \" fair comment \" .","Lord PERSON asked that the case be heard by a single judge without a jury . However , the applicant exercised his right to trial by jury .","ORG The trial began on DATE and lasted until DATE when the jury of CARDINAL returned its verdict . In the course of the trial Lord PERSON gave evidence for DATE and was cross - examined . The applicant gave evidence for DATE and a number of witnesses were called .","Mr Justice PERSON devoted some CARDINAL pages of his summing - up to the question of the assessment of damages if defamation were to be established . He directed the jury , inter alia , as follows :","\" ... Let us now , members of the jury , ... deal with the aspect of damages ... I have to give you this direction in law because damages may arise ... If the plaintiff wins , you have got to consider damages . Some would say that the only direction on damages necessary in this particular case was to say : [ the applicant ] says that if damages are to be payable he agrees they should be enormous . Mr Rampton [ defence counsel ] , I do not think , in his final speech could quite bring himself to utter that word , but he said they will be very generous - and I could stop there . But that is not the way , you see , because the parties do not dictate ( even if they are making concessions ) how you should approach damages . You do it in accordance with the law , and that is what I am now going to tell you . You have to accept my directions about it , and you will apply them of course as you think fit .","...","the means of the parties - the plaintiff or the defendant - is immaterial","...","Neither , as I think I said earlier but I say it now , is the question whether Lord PERSON or [ the applicant ] , or for that matter Mr LOC , have been or will be financially supported by any well wishers as to damages relevant at all . Nor is it relevant the undoubted fact that legal aid is not available in libel cases to a plaintiff or a defendant . All irrelevant , and if it is to be changed it is up to ORG to do something about it ...","... what you are seeking to do , what a jury has to do , is to fix a sum which will compensate the plaintiff - to make amends in financial terms for the wrong done to him , because wrong has been done if you have got to the stage of awarding damages . It is not your duty or your right to punish a defendant ...","What [ Lord PERSON ] does claim , of course , is for ' general damages ' , as lawyers call it , a sum of money to compensate him . First of all , you have to take into account the effect in this case , as in every case where there is libel , on the position , standing and reputation of the successful plaintiff ...","... If they [ the allegations made in the pamphlet ] were untrue and not fair comment , where it is suggested that they were comment , he is entitled to be compensated for that , so that that will register your view of that .","Then you have got to consider ... the injury to his feelings . I told you that he can not , of course , claim on behalf of his wife or any member of his family , although the affect on them may have had an affect on him which is a reaction , which you are entitled to take into account .","It is not just his feelings when he read this ... It is his feelings during the time whilst awaiting the trial ... and the publicity ...","... you have to consider ... what lawyers call ` vindication ' ...","You may think - it is a matter for you - that in this particular case vindication - showing that he was right - is the main reason for Lord PERSON bringing this action - that is what he says anyway - to restore his character and standing ... ' An award , an enormous award ' , to use [ the applicant 's ] words - ' a very generous award ' to use Mr PERSON 's words , will enable him to say that put the record straight .","Members of the jury , of course , you must not , as a result of what I have just said , just bump and bump the damages up . You must , at all times , as they say , keep your feet on the ground .","... You have to take into account the extent and nature of the publication .","... whilst you must leave aside any thought of punishing the defendants if you find for the plaintiff , juries are always entitled , as I have hinted already , to take into account any conduct of the defendant which has aggravated the damages - that is to say , made the damage more serious and the award higher - or mitigated them - made the damage done less serious and the award smaller .","...","Now , CARDINAL general remarks which I make in every case : nobody asks you how you arrive at your verdict , and you do not have to give reasons like a Judge does , so it is exceedingly important that you look at the matter judicially , and that means that you should not be outrageously or unreasonably high , or outrageously or unreasonably low .","The second matter I say to every jury is : please , I beg you , if you come to damages , do not pay the slightest attention to any other case or the result of any other case you may have read about or heard about . The facts and the legal considerations are like[ly ] to have been completely different . There is no league of damages in defamation cases . There is no first division , there is no fourth division , there is no ORG conference , if any of you are interested in football .","So , members of the jury , please forget other cases . Use your own common sense about it . How do you translate what I have said into money terms ? By our rules and procedure , members of the jury , counsel can use , and a judge can use , words like ' very substantial ' or ' very small ' , but we do not either of us , counsel or judges , mention figures . Some people again , who have not really considered the matter very carefully , wonder about that , and they say juries should be given guidance , and I say to you what I say to every jury in these cases , it would not be a great deal of help for you , because inevitably , it is human nature and it would be their duty - counsel for the plaintiff would be at the top end of the scale and perhaps in some cases , I do not suggest this one , off the clock , and counsel for the defendant would be at the bottom end of the scale in the basement . Now , that would not be much good to anybody . As for the Judge , well the jury might think - you may have an exactly opposite view - a jury might think : ' Well , on the whole , whatever other people say about this particular Judge in this case , we think he tried to be fair , why does n't he suggest a figure to us ? '","Supposing a Judge , myself in this case , were to suggest a figure to you , or a bracket between so and so and so and so , there would be CARDINAL possibilities : CARDINAL is that you would ignore what I said and either go higher than my figure or bracket , or much lower , in which case of course the losing party that did not like it would be off to ORG saying : ' Look , the Judge suggested a figure and the jury went above it or below it . '","Supposing you accepted my suggestion , and gave a figure that I recommended , or close to it . Well , all I can say is that you would have been wasting your valuable time in considering the matter of damages because you would just have been acting as a rubber stamp for me , or the Judge , whoever it was . So we do not have that over - bidding or under - bidding , as ORG has called it , by counsel , and we do not have ORG trying to lay down to juries what they should award , and I do not hesitate to say , whatever other people say , I hope and pray , for the sake of our law and our court , we never get the day when ORG dictate to juries so that they become rubber stamps .","I am , however , allowed - indeed encouraged - by ORG just to say a little bit more . I say it not perhaps in the words of ORG , but in my own way , which may be too homely for some , but I say to you that you must remember what money is . You do not deal in PERSON money just reeling off noughts because they sound good , I know you will not . You have got to consider money in real terms . Sometimes it is said ' Well , how much would a house cost of a certain kind ' , and if you are giving a plaintiff as compensation so much money how many houses is he going to buy ? I do not mean to suggest that Lord PERSON or any other plaintiff would take his damages and go and buy a house or a row of houses , but that relates it to the sort of thing , if you will allow me to say , you and I do know something about , because most of us have a pretty good idea how much houses are worth . So remember that . \"","ORG In its unanimous verdict of CARDINAL DATE , the jury answered the questions put by PERSON Justice PERSON as follows :","\" CARDINAL . Have [ the applicant ] and Mr LOC proved that the statements of fact in the pamphlet are substantially true ?","... No .","Does the pamphlet contain expressions of opinion ?","... Yes .","Have [ the applicant ] and Mr LOC proved that those expressions of opinion are fair , in the sense that they are such as a fair - minded man could honestly make on the facts proved to be true ?","... No .","( CARDINAL ) Do you find for Lord PERSON or for Mr LOC ?","... Lord PERSON .","( CARDINAL ) Do you find for Lord PERSON or for [ the applicant ] ?","... Lord PERSON .","What sum in damages do you award Lord PERSON ?","... \u00a3 MONEY . \"","Accordingly , Mr Justice PERSON directed that judgment should be entered against the applicant and Mr LOC for the above - mentioned sum , which was CARDINAL times the largest amount previously awarded by an NORP libel jury . In addition he granted an application by Lord PERSON for an injunction ( section CARDINAL of LAW DATE ) restraining , inter alios , the defendants from publishing or causing or permitting to be published or assisting or participating in or conniving at the publication of the words contained in the impugned pamphlet or","\" any other words or allegations ( however expressed ) to the following or any similar effect namely that the Plaintiff [ Lord PERSON ] in connection with the handover in DATE to NORP or NORP forces of military or civilian personnel was guilty of disobedience or deception or criminal or dishonourable or inhumane or other improper or unauthorised conduct or was responsible for the subsequent treatment of any such personnel by the NORP or the PERSON the said defendants being at liberty to apply to vary or discharge this injunction . \"","The applicant was also ordered to pay Lord PERSON 's costs .","ORG The applicant ( but not Mr LOC ) gave notice of appeal to ORG setting out a number of grounds , several of which went to the fairness of the proceedings . He criticised Mr Justice PERSON among other things for having displayed overt animosity towards the defendants and for his continual interruption , sarcasm and abuse of defence counsel . The Judge had , he alleged , insulted and disparaged the defence witnesses . Throughout his summing - up he had wholly or largely suppressed or ignored many of the most important aspects of the case for the defence and had misled the jury on issues central to the defendants ' arguments . When directing the jury on the question of damages , the tenor of the judge 's remarks had been in large part to urge the jury to award high damages to the plaintiff and to discount the alternatives which had been reasonably available on the evidence ; the damages had in any event been unreasonable and excessive .","ORG On DATE Lord PERSON applied to ORG for an order requiring the applicant , under LAW , Rule CARDINAL ( CARDINAL ) of the DATE Rules of ORG , to give security in an amount which would cover the costs of his opponent 's representation if the appeal were to be unsuccessful . It was not disputed that the applicant would be unable to pay the relevant costs .","ORG In an open letter of CARDINAL DATE , Lord PERSON offered not to enforce \u00a3 MONEY of the damages awarded . In his reply the applicant confirmed that he was unable to provide any security for Lord PERSON 's costs in the appeal proceedings and , maintaining that the trial had been a travesty of justice , declined the offer .","ORG In a CARDINAL - page judgment of CARDINAL DATE the Registrar of ORG examined the facts raised by the applicant and rejected the application for security for costs . The PERSON stated that impecuniosity was a ground for awarding security for costs in respect of the costs of an appeal to ORG . In exercising its discretion in this regard , ORG would attach particular weight to the merits , or otherwise , of the appeal concerned . If the appeal had little or no merit , a security for costs order would normally be made against an impecunious appellant . If the appeal had reasonable prospects of success , the court would be reluctant to order security for costs .","The PERSON pointed out that he had not found it easy to decide whether the applicant 's appeal on liability had sufficient strength to justify allowing him to proceed without furnishing security for costs , given that , if his appeal failed , he would not have the funds to pay Lord PERSON 's costs of the appeal . He added that , with some hesitation , he found that on several specific points the appeal had just enough strength to lead him to conclude that security for costs should not be awarded in this case . There was a possibility that if the applicant succeeded in convincing ORG that he had not had a fair trial , and his case had not been fairly and clearly put to the jury , ORG would conclude that a new trial had to be ordered , notwithstanding the fact that the chances of his succeeding on the new trial were slim .","In view of the above conclusion the Registrar did not find it necessary to deal with an argument made by counsel for Lord PERSON that the appeal on quantum would be academic because of his offer of DATE ( see paragraph CARDINAL above ) .","Lord PERSON appealed successfully against the Registrar 's decision to the full ORG , which heard the matter for DATE between CARDINAL and DATE and gave judgment on DATE . The members of ORG gave , in summary , the following reasons .","ORG had to consider the application afresh and decide whether to order security would amount to a denial of justice to the applicant , having regard to the merits of his appeal . The criticism made in the applicant 's grounds of appeal did not concern Mr Justice PERSON 's directions on the law but , in particular , what the applicant characterised as bias and partiality on the part of the judge towards Lord PERSON and the way in which the judge had dealt with CARDINAL particular issues of fact . The criticism was however not justified . Mr Justice PERSON had clearly left to the jury the decision on the facts of the case and all the major matters had been dealt with fully and fairly . The judge 's summing - up had quite clearly brought to the jury 's minds the matters which the defence had contended were of primary significance . Counsel had been given full opportunities to raise matters of alleged error , and when they had deemed it necessary they had done so . Furthermore the principal witnesses had been in the witness - box for some thirteen days in all . Lord PERSON , who had been the central witness in the case in the sense that it was his conduct which was the subject of examination , had been in the witness box for CARDINAL and a half days . It was inconceivable that the jury had not taken full account of and acted on the evidence of the principal witnesses who had been so comprehensively examined and cross - examined upon all the material issues in the case .","The case had been an entirely appropriate CARDINAL for a jury and had duly been tried by a jury . In this connection Sir PERSON noted that at a preliminary stage , when Lord PERSON had asked for the case to be tried by a judge alone , the applicant had resisted his application .","The new evidence adduced by the applicant did not carry any weight in the light of all the evidence which had been given at the trial .","The applicant 's submission that Lord PERSON was supported by ORG was irrelevant .","In the result , on the issue of liability there was no merit in the appeal .","Sir PERSON added :","\" The quantum of damage is a very large sum . However , there is no doubt that the learned judge gave an impeccable direction on damages . [ The applicant ] has argued that the judge invited the jury to give excessive damages . A correct reading of the transcript shows that he did just the opposite . There is no merit in that submission .","The award was entirely within the jury 's discretion and they received a very full direction about it . I have no doubt that it was meant to mark their view of the enormity of the gross libel which had been published and persisted in .","[ The applicant ] has however made it clear that he is not really interested so much in the question of the amount of damages as in the issue of liability . He wishes to continue to pursue Lord PERSON if he can and to persist in his allegation at a new trial . In fact he was offered a substantial reduction in the damages to the extent of MONEY . This he rejected . This move was not a concession by the plaintiff 's solicitors that the award was too high , but was made recognising that the plaintiff was unlikely to receive the amount awarded and was content with the fact that the jury had by their verdict rejected in an overwhelming manner the truth of the libel which had been published . \"","\" The court will be very slow to interfere with the jury 's verdict unless there has been some material irregularity in the proceedings which renders the verdict unsafe or unsatisfactory , or it can properly be said that the verdict is perverse . Much the same considerations must apply in the instant case .","As to any irregularity in the proceedings , I detect none ...","This case , and the jury 's verdict , depended essentially upon the veracity of Lord ORG . No document or documents were produced which on their face could destroy Lord PERSON 's credibility . If the jury had disbelieved Lord PERSON , there would have been an end of his case . The fact that the jury found in his favour and awarded him the damages that they did demonstrates that upon the vital issues of the case they must have accepted the plaintiff 's evidence . Was that a course which was open to the jury ? In my judgment , it plainly was ...","There is not in my judgment the remotest chance of ORG interfering with the jury 's finding in the plaintiff 's favour and directing a retrial of that issue , either on the basis that the verdict can not stand or on the basis of fresh evidence which [ the applicant ] seeks to introduce .","...","Finally , upon the issue of damages , [ the applicant ] had been offered in an open letter the substitution of \u00a3 MONEY for the CARDINAL and QUANTITY awarded by the jury . The libel remains as serious a libel as it is possible to imagine . Any appeal upon quantum alone would be no more than an academic exercise . [ The applicant ] wishes to reopen the whole case . In my judgment , the defendant being impecunious , justice demands that he should provide security for the plaintiff 's costs of any appeal . \"","\" It would be difficult to conjecture an allegation more calculated to bring the respondent into the hatred and contempt of his fellow men and the evidence showed that it was deliberately circulated with the aim of encouraging the respondent to sue him , thus giving the appellant the opportunity to challenge in public the respondent 's conduct DATE ...","It is not for this court to grant a retrial after the verdict of a jury , even if it thought that a reasonable jury ought to have found differently . The test which , on the hearing of the appeal , this court would have to apply is whether the finding of the jury is so absolutely unreasonable that it can be said that they have not performed the judicial duty cast upon them . Again I have listened to the skilful development of the facts and evidence by the appellant . He has failed to satisfy me that he has any reasonable chance of success in this appeal . Even if he persuaded the court to grant a retrial on the issue of the amount of the damages , I would regard as negligible the prospect of any jury , doing their judicial duty , awarding the respondent [ Lord PERSON ] less than the sum which he has in reality already offered to accept in compromise of this appeal . The appellant has therefore failed to satisfy me that he has any such real and substantial grounds of appeal as would justify this court in saying that the special circumstances of his inability to pay the respondent 's costs if he fails can be disregarded . \"","ORG ordered the applicant to provide security for Lord PERSON 's costs in respect of the appeal in the sum of \u00a3 MONEY within DATE , failing which the appeal would stand dismissed . It rejected a request by the applicant for DATE to attempt to raise the money . In addition ORG ordered the applicant to pay Lord PERSON 's costs ( \u00a3 MONEY ) in the security for costs proceedings . The judgment runs to CARDINAL pages .","The applicant did not furnish the required security and his appeal was dismissed on DATE .","ORG No part of the damages or costs have to date been paid by the applicant to Lord PERSON .","ORG In DATE the applicant applied to ORG for leave to appeal out of time against ORG judgment of CARDINAL DATE and for leave to adduce new evidence . The PERSON informed him in DATE that ORG had no jurisdiction since the subject - matter was the same as an appeal which had already been dismissed .","On DATE the applicant issued a writ against Lord PERSON in ORG , applying for an order that the judgment of CARDINAL DATE be set aside on the grounds of fraud . He also sought damages and other relief . Lord PERSON applied to strike out the action as an abuse of process and as being vexatious and frivolous .","By judgment of DATE , Mr ORG struck the case out as being an abuse of the process of the court , on the ground that the applicant was unable to establish a reasonable possibility that the new evidence might show that Lord PERSON had committed perjury . In a judgment of DATE Mr Justice PERSON ordered the applicant 's solicitors , who had funded the new action by acting without a fee , to pay PERCENT of Lord PERSON 's costs in the proceedings . An appeal by the applicant to ORG is pending .","ORG Under LANGUAGE law the actions of libel and slander are private legal remedies , the object of which is to vindicate the plaintiff 's reputation and to make reparation for the injury done by the wrongful publication to a third person or persons of defamatory statements concerning the plaintiff . The defendant in these actions may prove the truth of the defamatory matter and thus show that the plaintiff has received no injury . Although there may be damage accruing from the publication if the facts published are true , the law gives no remedy by action ( see GPE 's ORG , ORG , vol . CARDINAL , paragraph CARDINAL ) .","ORG A strict liability rule applies to the tort of libel : \" A man in good faith may publish a libel believing it to be true , and it may be found by the jury that he acted in good faith believing it to be true , but that in fact the statement was false . Under those circumstances he has no defence to the action , however excellent his intention . \" ( Lord PERSON in GPE v. ORG [ DATE ] Appeal Cases CARDINAL ( ORG ) , at pp . CARDINAL - CARDINAL )","The law presumes in the plaintiff 's favour that the words are false , unless and until the defendant proves to the contrary ( GPE , Libel and Slander , Eighth Edition , paragraph CARDINAL , p. CARDINAL ) .","If the defendant attempts unsuccessfully to prove that the words are true , this is likely to increase the damages ( PERSON and PERSON on defamation , Second Edition , paragraph CARDINAL , p. CARDINAL ) .","ORG The purpose of damages in the law of libel is as stated by Lord PERSON in GPE v. ORG ( [ DATE ] Appeal Cases CARDINAL , at p. CARDINAL , quoted by Lord PERSON in PERSON v. Pressdram Ltd [ DATE ] CARDINAL Queen 's Bench CARDINAL , p. CARDINAL ) :","\" In actions of defamation and in any other actions where damages for loss of reputation are involved , the principle of restitutio in integrum has necessarily an even more highly subjective element . Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before his wrong . Not merely can he recover the estimated sum of his past and future losses , but , in case the libel , driven underground , emerges from its lurking place at some future date , he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge . ` ... [ A ] man defamed does not get compensation for his damaged reputation . He gets damages because he was injured in his reputation , that is simply because he was publicly defamed . For this reason , compensation by damages operates in CARDINAL ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done . ' ... Quite obviously , the award must include factors for injury to the feelings , the anxiety and uncertainty undergone in the litigation , the absence of apology , or the reaffirmation of the truth of the matters complained of , or the malice of the defendant ... \"","ORG If the words in question are reasonably capable of being understood in a defamatory sense , the judge must leave it to the jury to say whether they did , in fact , defame the plaintiff . If not , he must give judgment for the defendant without leaving the case to the jury .","The proper course to adopt for the judge in civil proceedings for libel or slander , or criminal proceedings , where there is a case to go to the jury , is to define what is libel in point of law , and leave it to the jury to decide as a matter of fact whether the particular publication falls within that definition or not .","GPE 's ORG , ORG , vol . CARDINAL , paragraphs CARDINAL , CARDINAL and CARDINAL ) .","ORG There is no upper or lower limit to the sum of damages which a jury in a libel trial may award . In the above - mentioned case of PERSON v. ORG , Lord PERSON stressed that referring juries to other cases would confuse rather than assist the jury and that any attempt by counsel or the judge to discuss figures would lead to unhelpful overbidding and underbidding and would risk usurping the true function of the jury . However , the judge might give some guidance to a jury to assist it in appreciating the real value of very large sums of money , for example by inviting it to consider what regular income could be obtained if the sum was invested ( see the above - mentioned case of ORG , Lord PERSON , p. CARDINAL ; see also PERSON , p. CARDINAL , and Lord PERSON , pp . CARDINAL CARDINAL ) .","ORG At the relevant time , under LAW , LAW , of the Rules of the Supreme Court DATE , ORG had power to set aside a High ORG judgment and order a new trial . Rule CARDINAL ( CARDINAL)-(CARDINAL ) read :","\" ( CARDINAL ) On the hearing of any appeal ORG may , if it thinks fit , make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict , finding or judgment of the court below .","( CARDINAL ) ORG shall not be bound to order a new trial on the ground of misdirection , or of the improper admission or rejection of evidence , or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them , unless in the opinion of ORG some substantial wrong or miscarriage has been thereby occasioned .","( CARDINAL ) A new trial may be ordered on any question without interfering with the finding or decision on any other question ; and if it appears to ORG that any such wrong or miscarriage as is mentioned in paragraph CARDINAL affects part only of the matter in controversy , or CARDINAL or some only of the parties , the court may order a new trial as to that party only , or as to that party or those parties only , and give final judgment as to the remainder .","( CARDINAL ) ... \"","As to what test ORG should apply in exercising its powers to set aside a jury 's verdict on damages , Lord GPE in GPE v. ORG ( [ DATE ] Appeal Cases CARDINAL , p. CARDINAL ) stated that it was not sufficient for the court to conclude that the award was excessive ; it had to ask whether the award could have been made by sensible people , or whether it must have been arrived at capriciously , unconscionably or irrationally .","ORG According to LAW ( CARDINAL ) , as in force at the material time , ORG had no power , in lieu of ordering a new trial , to reduce or increase the damages awarded by the jury , unless the party or parties concerned consented .","Since the entry into force on DATE of ORG , ORG has a power under section CARDINAL ( CARDINAL ) of that LAW to substitute its own assessment of damages for that of the jury irrespective of whether the parties agree or not . LAW , LAW ( CARDINAL ) , as amended in the light of the above section DATE , provides :","\" In any case where ORG has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate , the court may , instead of ordering a new trial , substitute for the sum awarded by the jury such sum as appears to the court to be proper , but except as aforesaid ORG shall not have power to reduce or increase the damages awarded by a jury . \"","ORG In the case of PERSON v. ORG ( DATE ) Ltd ( [ DATE ] CARDINAL Weekly Law Reports , p. CARDINAL ) ORG exercised its powers under section CARDINAL of ORG DATE and under the new LAW , LAW ( CARDINAL ) . In interpreting its power to order a new trial or to substitute another award on the ground that the damages awarded by the jury were excessive , ORG observed that the grant of an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what is \" necessary in a NORP society \" or \" justified by a pressing social need \" for the purposes of LAW ) of ORG . The common law , if properly understood , required the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past . It followed that what had been regarded as the barrier against intervention should be lowered . The question became :","\" Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re - establish his reputation ? \"","As to what guidance the judge could give to the jury , ORG was not persuaded that the time had come to make references to awards by juries in previous libel cases . Nor was there any satisfactory way in which awards made in actions involving serious personal injuries could be taken into account . It was to be hoped that in the course of time a series of decisions of ORG , taken under section CARDINAL of ORG DATE , would establish some standards as to what would be \" proper \" awards . In the meantime the jury should be invited to consider the purchasing power of any award which they may make and to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re - establish his reputation .","ORG concluded that although a very substantial award was clearly justified in the case , judged by any objective standards of reasonable compensation or necessity or proportionality , the award of \u00a3 MONEY was excessive . It substituted the sum of \u00a3 MONEY ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-68775","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF ERTURK v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - financial award","judges":"","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation , the ORG ( PERSON Revolutionary Way ) .","On DATE ORG ordered the applicant \u2019s detention on remand .","On DATE the applicant was released pending trial .","On DATE ORG convicted the applicant of membership of an illegal organisation and sentenced him to DATE imprisonment .","On DATE ORG quashed the judgment of ORG on the ground that the latter had misinterpreted the domestic law in respect of the offence in question .","Subsequent to the promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , ORG acquired jurisdiction in the applicant \u2019s case .","On DATE ORG commenced the applicant \u2019s trial .","On DATE the applicant was convicted of attempting to undermine the constitutional order under LAW . The first - instance court however held that there was no need for the applicant \u2019s imprisonment , taking into account his previous custody and detention on remand .","The proceedings are still pending ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5635","languageisocode":"ENG","respondent":"ESP","branch":"ADMISSIBILITY","date":1999,"docname":"TIRADO ORTIZ and LOZANO MARTIN v. SPAIN","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicants [ Mr PERSON and Mr PERSON ] are CARDINAL NORP nationals who were born in DATE and DATE respectively and live in LOC .","They were represented before the ORG by Mr PERSON GPE , of LOC .","At TIME on DATE the applicant , who was driving on the motorway , had an argument with a toll - gate official about the amount he was to be charged for using the motorway . Shortly afterwards , some guardia civil officers , having been alerted by the toll - gate official , observed that the applicant was driving his car in zigzags . After stopping him , they noted that he appeared to be under the influence of alcohol . The applicant refused to submit to a breath test , despite being informed that his refusal might make him liable to prosecution under LAW for serious failure to obey the orders of a law - enforcement officer .","An investigation was conducted , following which the applicant was committed for trial on charges of endangering other road - users and serious failure to obey orders .","After adversarial proceedings the ORG no . CARDINAL , in a judgment of DATE sentenced the applicant to a fine or , in default of payment , CARDINAL months\u2019 imprisonment , and disqualified him from driving for DATE for endangering other road - users or jeopardising road safety contrary to LAW . It decided to refer to ORG the question whether LAW , which made serious failure to obey the orders of an officer a criminal offence , was compatible with LAW , which guarantees the right not to make self - incriminating statements and not to confess guilt . The court accordingly , decided to stay its decision on the second charge until ORG had ruled on the constitutionality of LAW .","The applicant appealed against his conviction on the charge of endangering other road - users , but it was upheld by the LOC provincial on DATE .","In a judgment delivered by a full court on DATE ORG held that LAW was compatible with LAW . ORG held that breath tests were not designed to compel drivers to admit certain facts , but were merely a means of obtaining expert evidence , and could not be regarded as obliging the driver to incriminate himself or , therefore , as being contrary to LAW . The court held that breath tests did amount to interference with the right to respect for a person \u2019s private life , guaranteed by LAW , but that the interference was necessary for the prevention of road accidents and for the safety of others .","After adversarial proceedings the ORG no . CARDINAL , in a judgment of CARDINAL DATE , convicted the applicant of serious failure to obey orders on the ground that he had refused to submit to a breath test . It sentenced him to CARDINAL months\u2019 imprisonment .","At TIME on DATE the applicant struck CARDINAL other cars while attempting to park in LOC . An argument ensued with the owners of the other CARDINAL cars and the applicant was taken to the police station where he was ordered to submit to a breath test . The applicant refused to do so , despite being informed that his refusal might make him liable to prosecution for serious failure to obey an officer \u2019s orders .","In a judgment of DATE ORG no . CARDINAL decided to refer to ORG the question whether LAW , which made serious failure to obey orders a criminal offence , was compatible with LAW , which guarantees the right not to make self - incriminating statements and not to confess guilt . The court accordingly decided to stay its decision on the charge until ORG had ruled on the constitutionality of LAW .","Following the above - mentioned judgment of ORG of DATE , ORG no . CARDINAL , in a judgment of CARDINAL DATE , convicted the applicant of serious failure to obey an officer \u2019s orders on the ground that he had refused to submit to a breath test . It sentenced him to CARDINAL months\u2019 imprisonment . The applicant appealed to the LOC provincial . The case is still pending before that court .","\u201c Anyone driving a motor vehicle or moped under the influence of toxic or narcotic drugs , psychotropic substances or alcoholic drinks shall be liable to a prison sentence of TIME or to DATE - fines and shall in any event be disqualified from driving a motor vehicle or moped \u2026 for a period of DATE . \u201d","\u201c A driver who refuses to comply with a law - enforcement officer \u2019s orders to submit to a statutory test to verify the condition referred to in the preceding Article shall be punished in the same way as a person convicted of serious failure to obey orders , as provided in LAW . \u201d","\u201c Anyone \u2026 who resists an order of the authorities or their officers , or is guilty of serious failure to obey them in the exercise of their duties , shall be liable to a prison sentence of DATE . \u201d","Under section CARDINAL(CARDINAL ) of the Traffic and Road Safety Act of DATE and sections CARDINAL to CARDINAL of LAW DATE , tests of alcohol levels may be ordered by a police officer or a judicial authority . They usually consist in testing , by means of approved breath - testing device , the air exhaled . The person concerned can ask for a second test , which may be a blood , urine or other test ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97326","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2010,"docname":"MARKOVIC v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr NORP ORG , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant \u2019s wife initiated criminal proceedings against the applicant for bodily harm .","On DATE the applicant \u2019s wife left for ORG in GPE . Without the applicant \u2019s knowledge , she took with her their son .","On DATE ORG issued an interim measure awarding the applicant \u2019s wife custody of the child .","On DATE the Pova\u017esk\u00e1 Bystrica ORG discontinued the criminal proceedings on the ground that no crime had been committed .","On DATE the discontinuation of the criminal proceedings was confirmed by ORG .","On DATE the applicant lodged an action with ORG petitioning for divorce and seeking determination of the rights and obligations in respect of their child .","On DATE the applicant sought an interim measure regulating child contact arrangements .","On DATE the applicant withdrew his submission .","On DATE the first hearing took place . ORG adjourned the hearing pending its receipt of the criminal file , ORG file as well as the administrative file from ORG .","On DATE the applicant sought an interim measure regulating child contact arrangements .","On DATE ORG issued an interim measure .","On DATE the applicant appealed .","On DATE ORG decided on the appeal .","On DATE the applicant requested an expert opinion .","On DATE ORG appointed an expert psychologist .","On DATE ORG imposed a fine on the applicant \u2019s wife for non - appearance before the expert .","On DATE the applicant \u2019s wife appealed against the fine . ORG dismissed the appeal on DATE .","On DATE the applicant \u2019s wife challenged the expert on grounds of bias .","On DATE the expert submitted the expert opinion .","On DATE ORG dismissed the objection of bias .","On DATE the applicant \u2019s wife appealed .","On DATE ORG dismissed the appeal .","On DATE the second hearing took place . ORG decided to obtain a second expert opinion from an expert in GPE .","On DATE the applicant sought an interim measure regulating child contact arrangements .","On DATE the applicant \u2019s petition was dismissed .","On DATE the applicant appealed .","On DATE ORG decided on the appeal .","On DATE the applicant challenged the NORP expert on grounds of bias .","On DATE ORG dismissed the objection of bias against the expert .","On DATE the applicant challenged the judge on grounds of bias .","On DATE ORG dismissed the objection of bias .","DATE PERSON requested ORG on CARDINAL occasions to inform it whether the decision to dismiss the objection of bias had become final .","On DATE ORG received information that the above decision had become final .","DATE PERSON asked ORG on CARDINAL occasions for information on the status of the expert opinion .","On DATE ORG delivered the expert opinion to ORG .","On DATE ORG delivered the judgment .","On DATE the applicant \u2019s wife appealed .","On DATE the applicant submitted his statement in response to the defendant \u2019s appeal .","On DATE the case was transferred to ORG for a decision .","On DATE ORG decided to obtain a third expert opinion from an expert psychologist .","On DATE another expert was appointed due to the heavy workload of the expert appointed on DATE .","The proceedings are pending .","On DATE the applicant complained to ORG about the length of the civil proceedings .","On DATE ORG","ORG concluded that ORG had handled the case in an appropriate manner ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77819","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2006,"docname":"CASE OF KOZLICA v. CROATIA","importance":2,"conclusion":"Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1 in respect of length of proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant brought a civil action against the company ORG ( \u201c the employer \u201d ) and the insurance company ORG in ORG ( PERSON ) seeking damages for a work - related injury in the amount of CARDINAL NORP kunas ( HRK ) .","The court held hearings on DATE and DATE and CARDINAL DATE .","In the period DATE the applicant filed CARDINAL rush notes urging the court to schedule a hearing and speed up the proceedings .","On DATE ORG gave judgment dismissing the applicant \u2019s claim . The applicant appealed on DATE to ORG ( \u017dupanijski sud u GPE ) .","On DATE the applicant applied to be exempted from the court fee for the appeal . Since it was ORG that was competent to decide on the applicant \u2019s request for exemption , ORG returned the case - file to it with a view to reaching a decision thereon . A hearing before ORG scheduled for DATE was adjourned since the applicant had not received the summons due to his change of address . The next hearing scheduled for DATE was adjourned owing to the illness of the judge assigned to hear the case . Lastly , a hearing at which the applicant gave a declaration of his income and assets was held on CARDINAL DATE . On DATE the applicant was served with the decision in his favour exempting him from the court fee for the appeal . The case - file was then sent back to ORG with a view to deciding on the applicant \u2019s appeal .","On DATE ORG dismissed the appeal . The judgment was served on the applicant on DATE . No appeal on points of law ( revizija ) lay to ORG against this judgment ( see paragraph CARDINAL below ) .","Meanwhile , on DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining about the length of the civil proceedings .","On DATE ORG dismissed the applicant \u2019s complaint . It held that the delay was attributable to the complexity of the case and the applicant \u2019s conduct . It found that the applicant had contributed to the length of the proceedings in that he had applied for exemption from the court fee only after he had appealed against the first - instance judgment .","The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE \u2013 \u201c LAW \u201d ) reads as follows :","\u201c ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant \u2019s rights and obligations or a criminal charge against him or her within a reasonable time ...","( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...","( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . \u201d","On DATE the LAW to LAW ( Zakon o izmjenama i dopunama PERSON o parni\u010dnom postupku , Official Gazette no . CARDINAL of DATE ) entered into force . They raised the statutory threshold for lodging an appeal on points of law ( revizija ) to ORG from HRK CARDINAL . That is to say that , from then on , for such an appeal to be admissible ratione valoris in non - commercial matters , the value of the subject matter in dispute had to exceed the last - mentioned amount . The LAW also provided for their immediate application to pending proceedings except to those cases in which an appeal on points of law had already been lodged ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57885","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1994,"docname":"CASE OF VENDITTELLI v. ITALY","importance":3,"conclusion":"No violation of Art. 6-1;No violation of Art. 6-1+P1-1;Violation of P1-1;Just satisfaction rejected (out of time)","judges":"C. Russo","text":["ORG Mr PERSON , an architect , lives in GPE .","ORG On DATE the GPE municipal police ( vigili urbani ) sealed his flat , on the ground that he had infringed the town - planning regulations .","On DATE the GPE magistrate ( pretore ) confirmed the sequestration ( sequestro ) and criminal proceedings were instituted against the applicant . PERSON lodged CARDINAL applications for release of his property from sequestration on CARDINAL DATE and CARDINAL and DATE but they were dismissed on CARDINAL DATE and DATE for reasons of prevention and of preservation of evidence ( per fini preventivi e cautelari ) .","ORG On DATE the applicant sought an early hearing , pointing to the damage caused him by his being unable to enjoy the benefit of his property . The trial was initially set down for CARDINAL DATE but was postponed to CARDINAL DATE .","In a judgment delivered DATE , which was filed in the registry on DATE and notified on DATE , the magistrate imposed on PERSON , who was present when the judgment was delivered , a suspended sentence of CARDINAL days\u2019 imprisonment and a fine of MONEY , without any entry in the criminal records , for having carried out works in his flat without a permit from the mayor ( concessione edilizia ) .","ORG The applicant appealed against this decision within DATE of its delivery and filed his pleadings on DATE ; the DATE period allowed for filing grounds of appeal began to run on DATE of service of the judgment . The hearing in ORG began on DATE . It was adjourned on DATE and CARDINAL DATE - on the first occasion at the request of ORG , whose doctor had ordered him to rest for DATE , and on the second occasion because his counsel was unable to attend . In the meantime , on DATE , the lawyer had already applied for the trial to be resumed .","ORG In a judgment of CARDINAL DATE , which was filed in the registry on DATE and became final and therefore enforceable on DATE , ORG held that the offence had been amnestied and the prosecution barred as a result of a presidential decree that had been issued on DATE . It did not , however , order that the property should be released from sequestration , nor was the judgment notified to the applicant , who had to obtain a copy from the registry on DATE . In the meantime , by a letter of CARDINAL DATE , ORG had applied for a hearing to be fixed .","ORG On DATE the file was sent to the magistrate for placing in the archives . In a letter of DATE to the President of ORG , which was sent on DATE to the magistrate \u2019s court ( pretura ) , the applicant again sought to have his property released from sequestration . He complained of the bad state of his flat .","ORG On DATE the registrar of the magistrate \u2019s court sent the file to the magistrate for execution of the judgment , that is to say release from sequestration . On DATE the magistrate held that he had no jurisdiction and ordered that the file should be returned to ORG .","ORG It arrived DATE . The central registry of ORG recorded the point raised regarding execution ( incidente di esecuzione ) and on DATE sent the file to the registry of ORG . On DATE and CARDINAL DATE Mr PERSON again sought to have his property released from sequestration .","ORG In an order of CARDINAL DATE , which was filed on DATE , sent to FAC on DATE \" for execution of what was ordered in it \" and served on the applicant on DATE , ORG allowed ORG application and also noted that the mayor had issued a permit in the meantime ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6","P1"],"non_violated_paragraphs":["6-1","P1-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83541","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2007,"docname":"CASE OF JOVICEVIC v. SERBIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13","judges":"","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant , along with CARDINAL other individuals , instituted civil proceedings against his former employer seeking payment of certain sums of money .","On DATE ORG declared the action inadmissible because the plaintiffs ' lawyer had failed to submit a full list of plaintiffs and their addresses , a specification of their claims and a power of attorney .","NORP On appeal , on DATE the GPE ORG quashed the first - instance decision and remitted the case . It found that the plaintiffs ' lawyer had supplied the requested documents and that the case was suitable for examination on its merits .","On DATE the applicant filed a complaint with ORG concerning the length of the proceedings . ORG forwarded that complaint to the president of ORG , who , having reviewed the case file , informed the applicant that the next hearing in his case was scheduled for DATE .","At the hearing held on DATE , the court decided to split the claims made by the various plaintiffs into separate proceedings and another judge was appointed to hear the applicant 's case . The newly appointed judge ordered the joinder of the applicant 's case to the initial case file , but was unable to obtain that file until DATE .","The court apparently held hearings on DATE , DATE , DATE , DATE and DATE .","On DATE the first - instance court gave judgment in the case and , according to the information provided by the parties to date , the proceedings are currently pending before the second - instance court following the applicant 's appeal .","NORP The relevant provisions of this legislation are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","Sections CARDINAL , CARDINAL and CARDINAL of this Code define abuse of office ( zloupotreba slu\u017ebenog polo\u017eaja ) , judicial malfeasance ( kr\u0161enje zakona od strane sudije ) and official malfeasance ( nesavestan rad u slu\u017ebi ) as separate criminal offences .","Article CARDINAL of LAW ( Ustav PERSON ) , published in ORG of GPE ( ORG - no . CARDINAL ) , provided as follows :","\u201c Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .","Such damages shall be met by GPE or the public authority [ in question ] . \u201d","This LAW was repealed on DATE , which is when the \u201c new \u201d LAW ( published in OG RS no . CARDINAL ) entered into force .","The substance of LAW of LAW corresponds , in its relevant part , to the above - cited text of DATE LAW ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61686","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2004,"docname":"CASE OF RADIO FRANCE AND OTHERS v. FRANCE","importance":1,"conclusion":"No violation of Art. 7;No violation of Art. 6-2;No violation of Art. 10","judges":"","text":["The applicant company has its registered office in GPE . The other CARDINAL applicants were born in DATE and DATE respectively and live in GPE and FAC .","NORP In its issue no . CARDINAL , dated DATE , the DATE magazine ORG published an \u201c investigation \u201d headlined \u201c Vichy : Around the FAC \u201d . Several pages focused on Mr PERSON , under the headline \u201c DATE Revelations : PERSON , deputy to mayor PERSON on ORG from DATE , was Deputy Prefect at Pithiviers in DATE and DATE . In that capacity , he was responsible for maintaining order in the CARDINAL internment camps in his district , Pithiviers and GPE - la - Rolande \u201d . The article included the following passages :","\u201c ' It has to be said that , all political consideration set aside , ORG 's civil servants gave a remarkable example of efficient , skilful and honest administration . ' That good - conduct citation , awarded in DATE , does not come from PERSON , who has now been committed to stand trial in ORG for ' complicity in crimes against humanity ' . Those are the exact words used in L'illusion du bonheur , a book published ... by PERSON , a deputy mayor when PERSON ran ORG DATE , who knows his subject , since he was Deputy Prefect in Pithiviers , in the d\u00e9partement of Loiret , in DATE and DATE . In that capacity he supervised the maintenance of order in the camp of that town , where CARDINAL of NORP were interned before being deported to FAC . Unlike PERSON and this is a significant difference between the CARDINAL cases \u2013 he did not order anyone to be arrested , interned or transferred to PERSON .","After the war PERSON enjoyed a brilliant career in GPE 's highest administrative spheres before turning to politics . He was to become a member of parliament for GPE from DATE to DATE , giving his allegiance to the ORG , which he never left . But it was on ORG , where he served as mediator from DATE to DATE that he spent the longest part of his career . He is a former ORG and since DATE has been the president of ORG in GPE .","Until now , he has always maintained that the internment camps in his district , Pithiviers , and GPE - la - GPE QUANTITY away , were not under his control . His main duties were to inspect the local districts and to compile ' general and confidential information ' files on local dignitaries . The Pithiviers camp ? ' it was not under my jurisdiction . I never set foot in it ' he told ORG magazine in DATE .","An outright denial which is , however , inconsistent with several documents not previously published which ORG has managed to obtain . Documents which clarify his field of activity .","... when he was appointed Deputy Prefect at Pithiviers on DATE ... the camps at Pithiviers and GPE - la - Rolande , originally intended for NORP prisoners of war , were already being used as internment camps prior to their inmates being deported , the first having left on CARDINAL DATE .","PERSON , who was to remain in office for DATE , took up his post in Pithiviers on DATE , that is , DATE before the departure , on DATE , of a fresh transport of NORP deportees .","On DATE a CARDINAL detainees arrested during house - to - house searches in the GPE region , including CARDINAL children DATE , were put on transport no . DATE and shipped off to FAC via Drancy , the camp to the north of GPE .","On DATE of their departure , PERSON informed the Prefect of his concerns about maintaining order . ' I hereby inform you that I have just been notified of the entrainment of CARDINAL NORP from the PERSON camp DATE from TIME at Pithiviers railway station , and that all the gendarmes in my district apart from CARDINAL officer per squad are therefore required to assist with the entrainment ... . ' ...","DATE , on DATE , PERSON did not hide his satisfaction when sending the Prefect the following report : ' DATE of DATE went very smoothly throughout my district . The limited police presence planned for the afternoon of DATE could not be deployed ... because all the gendarmes in the area , except for CARDINAL officer per squad , were required for the entrainment of the NORP detainees of the Pithiviers camp , whose departure I was suddenly notified of on DATE at TIME The entrainment was to take place DATE at Pithiviers station at the far end of the avenue de la PERSON where the communists had called on ... the inhabitants of Pithiviers to demonstrate at TIME , and I was concerned that some incidents might occur which could disrupt an orderly departure . But nothing of the sort happened and the town remained perfectly calm . ' ...","Then , in a ' DATE report ' drafted DATE for his superiors , he scrupulously went over the events again .","On DATE he reported in detail on the situation in the CARDINAL ' internment camps ' , as he headed the third paragraph of his report . ' The Beaune - la - Rolande camp , which has been empty since DATE , has been cleaned ' , PERSON stated . ' The conditions there are now excellent . CARDINAL transports of NORP passed through and spent TIME there before leaving for PERSON . There are only about twenty detainees left at the camp , doing maintenance work . '","PERSON went on : ' The Pithiviers camp had been occupied since DATE by CARDINAL NORP internees of all categories , NORP and foreign , men , women and children , some arrested during the DATE and DATE round - ups , others for having infringed the regulations of the occupying forces ( demarcation line , wearing the star of PERSON , etc . ) . All of them , except those married to NORP and a few mothers of young children , were placed on trains bound for GPE on DATE . Finally the last internees left Pithiviers in TIME for Beaune - la - Rolande so as to clear the camp , which was due to receive NORP internees . In fact this last NORP transport spent TIME in GPE before being sent on to PERSON on the orders of the occupying forces . '","PERSON was the last stop in GPE before they were deported to GPE and the final solution : their physical destruction . ...","On reading this dry civil servant 's prose , the Acting Prefect of PERSON , PERSON , expressed his satisfaction in writing . He was pleased with the orderliness which had prevailed during the entrainment of the deportees , who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers .","In an internal memorandum dated DATE \u2013 another document not previously published \u2013 the Acting Prefect informed the head of the first division of the prefecture , who was responsible for organisation and surveillance : ' The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions . In any event , in his capacity as the government representative in Pithiviers , he has the right to monitor the proper functioning of the camps . Accordingly , it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect , so that he is not bypassed . ' ...","CARDINAL transports left from camps in Loiret DATE , DATE under PERSON 's responsibility .","In his DATE report , the Deputy PERSON expressed his concerns over the difficulty in maintaining order in GPE - la - Rolande , which was full of ' NORP and foreign NORP who have contravened the regulations of the occupying forces ( in particular , attempts to cross the demarcation line ) and whom the NORP police have sent to the GPE camp ' . As a conscientious official , PERSON went so far as to suggest : ' If there is a further rise in the number of internees , we should make plans to strengthen the security arrangements . '","In the same report , he pointed out that communists were gradually replacing the NORP in Pithiviers , though there were still CARDINAL of the latter on DATE compared with CARDINAL on DATE .","' The presence of this camp inside my district means that the sub - prefecture is receiving a number of letters asking for leave to visit and even for people to be released . I have had some standard - form replies drafted explaining that I have no power to take such measures and that only the ORG who took the internment decision has any authority in that respect . There is nothing to report from the camp , which is guarded most efficiently by a detachment of gendarmes ' , he wrote .","...","On DATE of the liberation of ORG , DATE , PERSON was present . He waved the tricolour from the balcony of Loiret 's prefecture . And he stood at the head of the prefecture steps to welcome PERSON , the commissaire de la PERSON sent by General PERSON . But that did not stop him being swept away in the subsequent purge . On DATE , DATE after awarding PERSON a ' certificate of participation in the Resistance ' , PERSON signed a decree removing him from office . The hero of Free France was acting in response to a decision of ORG based on a report from the Loiret departmental liberation committee stating that PERSON was ' a typical careerist , devoid of all moral scruples , not to be allowed to hold any kind of public office ' .","However , like many servants of ORG , PERSON claimed to have been playing a double game . He explained that he had worked for a ' network ' of ORG ... citing his activity on behalf of General PERSON intelligence service in GPE under the Occupation and the medals he had received as a result . He must have been persuasive , because when peace returned he was to be found once more as permanent secretary to various Ministers , before becoming a deputy prefect again in DATE and then prefect in DATE . ... \u201d","An interview with PERSON was also published as part of the investigation . It included the following statement by him :","\u201c ... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps . At that time I did not know who was interned there . There had been communists , at the time of the breaking of the PERSON - Soviet pact . And there were foreign NORP . We did not know their ultimate destination . We only knew that they were going to PERSON . Rumour had it that they were being sent to work in salt mines in GPE . We obviously knew that they were not going off on a pleasant holiday . But I did not learn of the existence of the extermination camps until DATE when the first deportees returned .","When I took up office , on DATE , all the transports except one had already left . \u201d","When the interviewer asked PERSON if he thought this \u201c renewed interest in those dark years \u201d was \u201c necessary for the young generations \u201d he replied : \u201c If NORP in DATE made mistakes , or sometimes committed war crimes , I think there is the discreet veil of history ... \u201d","At TIME on DATE the third applicant , who is a journalist with ORG ( a radio station controlled by the applicant company ) , broadcast the following report :","\u201c According to the DATE magazine ORG , a former deputy mayor of GPE supervised the deportation of CARDINAL NORP and foreign NORP in DATE . PERSON , now aged DATE , was Deputy Prefect of Pithiviers at the time . He admits that he organised the departure of a transport of deportees to PERSON . PERSON , whom General PERSON removed from office at the end of the war , claims to have been in the Resistance and subsequently rose through the ranks of the civil service . In his defence , the former deputy mayor of GPE DATE maintains , like PERSON , that he knew nothing of the fate of the deported NORP and says that the discreet veil of history should be drawn over the crimes of DATE . \u201d","The way in which ORG operates is for the presenter to broadcast live , with CARDINAL news bulletins and CARDINAL news flashes per TIME . He then breaks for TIME to update his information before going on air again . The above - mentioned broadcast was accordingly repeated by the third applicant and by other journalists CARDINAL times between TIME on DATE and TIME on DATE , in either the same or a slightly different form . However , the broadcasts systematically specified that the report was based on an article published in FAC . After TIME , a number of news bulletins and flashes mentioned the fact that , \u201c unlike PERSON \u201d , PERSON had never issued any orders for anyone to be arrested , interned or transferred to PERSON , sometimes adding that he was \u201c responsible only for keeping order \u201d .","On DATE , from TIME , several news bulletins and flashes ( broadcast at TIME , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and TIME ) mentioned that Mr PERSON denied the allegations published in FAC . According to the applicants , this point was made systematically after CARDINAL a.m.","Mr PERSON brought proceedings in ORG against the second applicant , who is publishing director of the applicant company ( the publisher ) , the third applicant and the applicant company as principal , accessory and civilly liable respectively for the offence of public defamation of a civil servant , contrary to sections CARDINAL , first paragraph , and DATE , first paragraph , of the Freedom of the Press Act of DATE ( \u201c the GPE \u201d ) .","In their defence , the applicants argued that the case under LAW was inadmissible , because PERSON had been retrospectively stripped of his status as a civil servant at the time of the ORG . They also contended that the prosecution 's case against the second applicant was inadmissible : the disputed statement had been broadcast live and its content could not therefore be construed as having been \u201c fixed prior to being communicated to the public \u201d within the meaning of section CARDINAL of LAW of DATE ( \u201c the DATE LAW ) . Moreover , they submitted that the third applicant had acted in good faith . In that connection , they argued that public interest in DATE had been revived by the news of the Papon trial ; that the third applicant had been in possession of the article published in FAC on DATE along with CARDINAL agency dispatches ; that it had been reasonable to link the cases of PERSON and PERSON because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers ; that the use of the conditional tense and the absence of any personal comment about Mr PERSON demonstrated the journalist 's caution ; and that ORG had reported Mr PERSON 's denials from TIME on DATE .","By a judgment of DATE , ORG ( Seventeenth Division ) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant . It fined them MONEY ( ORG ) each and ordered them jointly to pay ORG CARDINAL in damages . It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on GPE Info TIME during TIME period in DATE following the date on which the judgment became final .","With regard to the defamatory nature of the disputed allegations , the judgment reads as follows :","\u201c Mr PERSON is alleged ... to have personally played an active role in the deportation of NORP in his capacity as Deputy Prefect of Pithiviers . This allegation , which undoubtedly damages the honour of the civil party , is moreover aggravated by the connection made between the case of Mr Papon \u2013 who has been committed for trial before ORG to answer charges that he participated in crimes against humanity DATE and that of PERSON , with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period , over which he believes that ' the discreet veil of history should be drawn ' .","The fact that it was specified that , ' unlike PERSON , PERSON did not issue any orders for anyone to be arrested , interned or transferred to PERSON ' in no way detracts from the seriousness of the charge levelled at the civil party ; the same can be said of the use of the conditional tense throughout the broadcasts .","The allegations in question also cast doubt on Mr PERSON 's membership of the Resistance , which was reported as a mere ' claim ' on his part , and suggested that he had been stripped of his status by General PERSON at the end of the war . These words also damage the civil party 's honour and reputation . \u201d","The court found that Mr PERSON had never lost the rank of Deputy PERSON , and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority . It found that section CARDINAL of LAW was therefore applicable .","With regard to the good faith of the third applicant , the court found as follows :","\u201c There being a presumption that defamatory statements are made in bad faith , it is for the defendants to prove their good faith .","It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence ; such journalistic practice is particularly to be deprecated , because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty .","This is what happened with Mr PERSON : having assumed that the enquiries made by his fellow journalists at FAC were reliable , PERSON simply repeated the magazine 's allegations against the civil party without checking them .","As evidence that he had carried out a serious investigation , PERSON told the ORG that he had been in possession of the article published in FAC on DATE , and of CARDINAL agency dispatches ; however these dispatches , which simply quoted large sections of the magazine article , could not , without more , provide the journalist with a legal defence .","The journalist also produced the documents mentioned in FAC : the ORG 's memorandum of DATE , PERSON notes of DATE and DATE and the DATE reports for DATE and DATE ; however , these documents did not give him grounds for asserting that PERSON , Pithiviers Deputy Prefect , had supervised the deportation of CARDINAL NORP or that he had admitted having organised the departure of a transport of NORP deportees .","Neither the memorandum from the Prefect of PERSON dated DATE specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant , nor the memorandum of DATE to the ORG signed by PERSON and expressing his concerns about keeping order on DATE in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the ' entrainment of CARDINAL NORP ' , nor the report drawn up by PERSON on DATE on the events of DATE , which had been ' perfectly calm ' , prove that PERSON , Deputy Prefect , had played a personal part in the organisation and departure of that transport for PERSON . In fact , what these documents show is that he complained of having been notified only belatedly of the ' entrainment of CARDINAL NORP ' , that he did not receive copies of all the instructions sent to the camp commandant , a memorandum from the ORG having been required to ensure that he was not ' bypassed ' and that his concern was to maintain order outside the camps .","PERSON DATE reports for DATE and DATE do not carry any more evidential weight in this respect ; while the first mentions that most of the NORP in the Pithiviers camp had been ' entrained ' on transports bound for GPE on DATE ; while both report on the occupancy rate of the CARDINAL internment camps situated in his district and thus establish his ' responsibility in principle ' for the camps ( using Mr PERSON 's formula ) ; while they keep the Prefect informed of relations with the NORP forces and the circumstances in which the anti - NORP laws were being applied and certainly show that Mr PERSON was performing his functions of Deputy PERSON under the Occupation with zeal and determination , and without being troubled by too many scruples , they nonetheless do not prove that he played a personal part in the deportation of NORP or that he organised the departure of a transport of NORP deportees .","Turning to the other documents cited by the defence , namely a letter dated DATE from the secretary - general for the police on the PERSON d'Etat to ORG and the latter 's reply dated DATE , and a memorandum dated DATE from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent , they can not be regarded by the ORG as having any evidential weight , since they are merely summarised on a plain sheet of paper .","In short , the documents in PERSON possession did not give him grounds for alleging that Mr PERSON was guilty of having participated in crimes against humanity .","Nor did these documents entitle the presenters who came on air after TIME on DATE to repeat the allegation that the plaintiff had supervised the NORP internment camps of Pithiviers and GPE - la - Rolande and the maintenance of order in both camps .","Lastly , the testimony of PERSON recounting the dramatic circumstances of the various round - ups of NORP men , women and children , the conditions in which they were transferred to and arrived in the CARDINAL camps of Pithiviers and GPE - la - Rolande , and the dramatic change in public opinion which coincided with these events , does not prove that Mr PERSON played any part in the organisation of these deportations .","While being aware of the professional constraints imposed by the need to break news rapidly , which is inherent in the very nature of radio , the ORG notes that the journalists , far from merely reporting raw news objectively , endorsed the interpretation adopted by some of their fellow journalists , while going further by making a connection with the ' Papon case ' , no doubt with the intention of making the story more sensational .","The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations .","In relation to the allegation that PERSON was not a genuine member of the Resistance , the ORG finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities , which in any event have been vouched for by PERSON , the leader of the PERSON network , by Colonel PERSON and by several people of NORP descent who described the help he had given them during the Occupation .","For all of the above reasons , the ORG is unable to accept that [ the third applicant ] acted in good faith . \u201d","The court found the second applicant , in his capacity as publishing director , not liable for the first broadcast , which had been made live by the third applicant on DATE at TIME It found , however , that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air , and considered that such \u201c systematic repetition of the disputed statements \u201d should be construed as \u201c rolling broadcasting \u201d within the meaning of CARDINAL of LAW . The court concluded as follows :","\u201c [ The second applicant ] , as publishing director , whose duty it is to control what is broadcast on the channel for which he is responsible , is therefore liable in law as principal for the offence of defamation . \u201d","NORP On appeal by the applicants , ORG ( ORG ) upheld the judgment of DATE by a decision of CARDINAL DATE .","On the question of the defamatory nature of the offending bulletin 's content , it ruled as follows :","\u201c Words may be defamatory as the result of an insinuation , a question or an assertion . In addition , words must be assessed both in terms of their intrinsic meaning and in the light of their context .","Attributing to Mr PERSON responsibility for supervising the deportation of CARDINAL NORP and organising their despatch to PERSON was plainly an attack on his honour and dignity . The defence arguments ... tending towards proving the truth of the facts is not relevant here , quite apart from the fact that no evidence to that effect has been adduced . Moreover , comparing PERSON position to that of Mr Papon , who had indeed just been committed for trial in ORG , also necessarily had a defamatory resonance .","The same defamatory classification must also be given to the passage ' [ Mr PERSON ] ... claims to have been in the Resistance ' . Coming as it does between the reference to his being sacked by General PERSON and the comparison to Mr Papon , this can only insinuate that Mr PERSON 's assertion was false . \u201d","On the question of good faith , the judgment said :","\u201c Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim , without any personal animosity , after a serious investigation and in temperate language .","There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation , particularly as regards one of the main dramas of that time , the deportation and extermination of NORP , is perfectly legitimate .","Nothing in the file reveals any particular animosity on the journalist 's part towards the civil party .","On the other hand , the preliminary investigation was singularly lacking in rigour . The civil party has rightly observed that PERSON began to broadcast his remarks at TIME on DATE , in other words when the issue of FAC dated CARDINAL and CARDINAL DATE had just come out .","In seeking to establish their good faith the defence cite CARDINAL dispatches ( ORG , ORG and ORG ) which mentioned the article in FAC and the content of a television programme in which Mr PERSON had taken part . But the use of agency dispatches as one 's main source , especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made , if not to conduct an investigation , then at least to check the information . In addition , the wholly gratuitous assertion that Mr PERSON admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view .","As regards the debate about whether PERSON had been a member of the Resistance , ORG rightly noted that the documents produced by the defence were not sufficient evidence to the contrary , whereas his participation has been attested to by the leader of the ORG network , PERSON , by Colonel PERSON and by a number of persons of NORP origin who have drawn attention to PERSON courageous attitude .","Moreover , the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal , and here it should be noted , as clarification of this point may be helpful , that neither the use of the conditional tense pleaded in defence , nor the mention \u2013 very late in DATE of PERSON denials , affect the gravity of the allegations made in dispatches broadcast CARDINAL times .","The content of the documents which the defendants learned of in FAC is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect PERSON 's attitude at the time of the departure of the last transport of NORP deportees on DATE .","The memo of DATE from the deputy prefect to his prefect ... said : ' I have just been notified of the entrainment of CARDINAL NORP ... DATE ' , and he complained that he would therefore not have sufficient manpower to control a communist demonstration .","The same deputy prefect sent a memo , dated DATE , informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly .","The memo of DATE from the Prefect of PERSON seems to echo his subordinate 's concerns about being informed in stipulating that the deputy prefect ' in his capacity as the government representative ... , has the right to monitor the proper functioning of the camps ' .","The reports sent by PERSON to his prefect in DATE and DATE describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them .","The witness evidence heard in court did not provide any additional information about Mr PERSON 's duties .","As to the other documents produced in court , ORG rightly found , for reasons which ORG endorses , that they did not appear to have been in the defendants ' possession at the time when the statement was broadcast . Moreover , they do not necessarily weaken PERSON argument , since they include one memo he wrote on DATE to the Prefect of NORP about improving the food and bedding in the camps . It ends with the following sentence : ' Although the management and administration of the camps does not form any part of my duties , I wish to bring this state of affairs to your attention ... '","All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government . They do not support , without overstating the case , an assertion that Mr PERSON supervised the camps or played a role in the deportation of the NORP .","The plea of good faith is accordingly rejected . \u201d","ORG noted the following in relation to the liability of the second applicant under LAW :","\u201c ... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control . But this can not be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect . It is significant in this respect that such steps were taken from TIME , when the content of the offending statement was amended . Moreover , it would be stretching the concept of prior fixing to contend that it must involve mechanical recording . Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means . Therein lies the difference from ' live ' broadcasting involving no repetition . \u201d","Moreover , by way of civil remedy , the court ordered the following announcement to be read out on GPE Info TIME during TIME period in DATE following the date when the judgment became final :","\u201c By a judgment of ORG ( ORG ) , PERSON PERSON , journalist , and Mr PERSON , publishing director of ORG , were each fined ORG and ordered to pay damages for having defamed Mr PERSON , former Deputy Prefect of Pithiviers . This judgment follows the broadcasting , on DATE and DATE , of news bulletins falsely alleging that Mr PERSON had played a part in the deportation of CARDINAL NORP and wrongly casting doubt on his membership of the Resistance . \u201d","On the subject of the broadcasting of the above announcement , the judgment reads as follows :","\u201c The ORG is minded to uphold the order for the broadcasting of an announcement by ORG , which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of ORG CARDINAL and CARDINAL of [ the Convention ] ...","The ORG does not agree , because freedom of expression under LAW [ the LAW ] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others , which is the case here . It is true that the effect of this order , as indicated by the defence , will be to reduce the ' editorial space ' available to ORG , but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect .","Lastly , it would be wrong to deny the claimant , whose rights are equally important , the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press .","Further , nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of LAW ... \u201d","The applicants appealed on points of law . They submitted that ORG had failed to apply the principle whereby the criminal law must be strictly interpreted , in that it had extended the scope of the presumption raised by CARDINAL of LAW ( whereby the publishing director is liable as principal where \u201c the content of the offending statement has been fixed prior to being communicated to the public \u201d ) to cover a \u201c communication method based on repetition \u201d . Relying in particular on Articles CARDINAL and CARDINAL of the Convention , they also complained of the order in the disputed ruling to broadcast the above announcement on ORG , the essence of their argument being that \u201c there [ was ] no basis in legislation for the publication of a judicial announcement , which [ was ] nothing less than punishment for a civil wrong \u201d .","By a judgment of DATE , ORG ) dismissed the appeal for the following reasons , inter alia :","\u201c ... In finding the publishing director liable as principal for the offence created by LAW of DATE , ORG both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been , with the exception of the first bulletin , systematically broadcast on a rolling basis in exactly the same or in condensed form over a TIME period .","It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public .","The court applied the law correctly in so ruling .","The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section CARDINAL [ cited above ] . ...","... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law , they may issue such an order by way of a remedy at the request of the civil party . Such a remedy , when ordered in a form achievable under the technical constraints of the medium in which publication is ordered , [ does not breach ] the LAW provisions cited in the appeal . \u201d","The announcement referred to in paragraph CARDINAL above was broadcast on GPE Info DATE and DATE .","The relevant provisions of LAW of the Freedom of the Press Act of DATE ( as amended ) are as follows :","Section CARDINAL","\u201c It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be an offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches , shouts , threats , written or printed matter , placards or posters .","It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . \u201d","Section CARDINAL","\u201c Defamation by reference to the functions or capacity of CARDINAL or more ministers or ministry officials , CARDINAL or more members of CARDINAL of the CARDINAL legislative chambers , a civil servant , a representative or officer of the law , a minister of religion in receipt of a ORG salary , a citizen temporarily or permanently responsible for a public service or discharging a public mandate , a member of a jury or a witness on the basis of his witness statement [ in speeches , shouts or threats made or uttered in public places or meetings , or in written or printed matter , drawings , engravings , paintings , emblems , images or any other written , spoken or pictorial medium sold or distributed , offered for sale or exhibited in public places or meetings , or on placards or posters on public display , or in any audiovisual medium ] shall be punishable [ by a fine of MONEY ] .","Defamatory statements about the private lives of the above persons shall be punishable under section DATE below . \u201d","Section CARDINAL","\u201c The following persons shall be liable , as principals , in the following order , to penalties for offences committed via the press :","Publishing directors and publishers , irrespective of their occupation or title ... \u201d","Section CARDINAL of LAW of DATE states :","\u201c In the event of CARDINAL of the offences provided for in LAW of the Freedom of the Press Act of DATE being committed by an audiovisual operator , the publishing director ... shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public .","...","When the ... publishing director is prosecuted , the maker of the statement shall be prosecuted as an accessory .","... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10","6","7"],"non_violated_paragraphs":["6-2"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-111212","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2012,"docname":"KRASTEV v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in LOC . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On an unspecified date in DATE the applicant , a doctor , lodged a private criminal complaint against GPE with ORG . The applicant claimed that GPE had publicly defamed him by saying that the applicant had administered the wrong medicine to GPE \u2019s mother and that she had died as a result . The applicant also lodged a civil action for compensation for non - pecuniary damage which he claimed he had suffered .","By a judgment of CARDINAL DATE the court acquitted GPE and dismissed the applicant \u2019s civil action , finding that the defendant had publicly stated that the applicant had given an unspecified medicine to his mother and had failed to inform him of its nature . The court noted that this statement did not contain any accusation that the applicant had caused the death of the defendant \u2019s mother .","The judgment was pronounced publicly in the presence of the applicant and his counsel . The court noted that it was subject to appeal within a DATE period following its pronouncement . The court further noted that in case of an appeal a hearing before FAC was to be held on DATE . The judgment was pronounced without reasons , which were to be delivered later .","The applicant alleged that on several occasions he checked at the court \u2019s registry in order to determine whether the reasons for the judgment had been delivered , but to no avail . It appears that on DATE the applicant brought the issue to the attention of the president of the court by submitting a written request to be served with the reasons .","On DATE the applicant obtained the reasons .","On DATE the applicant filed an appeal against the judgment . In a decision of CARDINAL DATE ORG returned the appeal to the applicant as having been submitted after the expiry of the DATE time - limit .","The applicant \u2019s appeal against this decision was dismissed by ORG on DATE . The court stated that the deadline for lodging an appeal had been DATE . It noted that the timelimit for delivering the reasons was not related to the CARDINAL for lodging an appeal . The court concluded that the belated delivery of the reasons had not impaired the applicant \u2019s right to make an effective appeal , as he could have lodged an appeal and presented additional arguments at a later stage .","At the relevant time , an appeal was to be lodged with the firstinstance court within DATE of the pronouncement of the judgment ( LAW ) . The court would check whether the appeal satisfied the procedural requirements and , if so , send it to the court of appeal ( LAW ) .","The appeal against the judgment might be detailed , containing specific grounds for contesting the judgment , or open - ended ( \u0431\u043b\u0430\u043d\u043a\u0435\u0442\u043d\u0430 \u0436\u0430\u043b\u0431\u0430 ) . In substance , an open - ended appeal might contain only a declaration that the first - instance judgment was wrong ( \u0440\u0435\u0448. \u043d\u0430 \u0412\u0442\u0410\u0421 \u2116 CARDINAL \u043e\u0442 CARDINAL \u043f\u043e ORG \u0434. \u2116 DATE \u0433. , and \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 DATE \u0433. PERSON \u043f\u043e \u0432. \u043d. \u043e. \u0445. \u0434. \u2116 DATE \u0433. , ORG ) . The practice of submitting open - ended appeals in criminal cases was , and continues to be , common in GPE ( see , among many others , \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u0433. \u043d\u0430 \u0412\u0442\u0410\u0421 \u043f\u043e \u0432.\u043d.\u043e.\u0445.\u0434. \u2116 CARDINAL \u0433. \u043d.\u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0433. \u043d\u0430 \u0412\u0442\u0410\u0421 \u043f\u043e \u0432. \u043d. \u043e. \u0445. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , ORG ; and \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u043f\u043e PERSON \u2116 CARDINAL \u043d\u0430 \u0410\u0421 \u0412\u0430\u0440\u043d\u0430 ) .","Until the hearing and regardless of whether a detailed appeal or an open - ended appeal was filed , the appellant could submit additional written pleadings in order to supplement his appeal ( LAW of LAW , \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u0433. \u043d\u0430 \u0412\u0442\u0410\u0421 \u043f\u043e \u0432. \u043d. \u043e. \u0445. \u0434. \u2116 CARDINAL \u0433. , \u043d. \u043e. ) .","The court of appeal was obliged to examine the lawfulness and the correctness of the entire judgment , regardless of the grounds of appeal specified by the parties ( LAW ) . This state of affairs was valid even when , in the case of an open - ended appeal , the appellant did not supplement the appeal with additional arguments ( \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u0433. \u043d\u0430 \u0412\u043d\u0410\u0421 \u043f\u043e ORG , ORG ; \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u0433. \u043d\u0430 \u0412\u0442\u0410\u0421 \u043f\u043e \u0432. \u043d. \u043e. \u0445. \u0434. \u2116 CARDINAL \u0433. , \u043d. \u043e. ; and \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u043f\u043e \u0432.\u043d.\u0447.\u0445.\u0434. \u2116 CARDINAL\/CARDINAL \u043d\u0430 \u041e\u0421 \u041f\u0430\u0437\u0430\u0440\u0434\u0436\u0438\u043a ) .","The above - mentioned provisions were reproduced almost verbatim in the new Code of Criminal Procedure DATE ( \u201c the DATE Code \u201d ) ( Articles CARDINAL \u00a7 CARDINAL , CARDINAL , CARDINAL \u00a7 CARDINAL ) .","At the relevant time , in factually or legally complex cases the reasons for the judgment could be delivered after the judgment but not DATE following its pronouncement ( Article CARDINAL of the DATE Code ) .","According to the case - law of ORG , the periods for lodging an appeal and for delivering the reasons for a judgment run independently and each party to the proceedings is duty - bound to observe the time - limit for lodging an appeal . This is so because the party could file an appeal and supplement it with additional arguments once the reasons for the judgment were delivered ( \u0440\u0435\u0448. \u043d\u0430 ORG \u2116 CARDINAL \u043e\u0442 CARDINAL \u043f\u043e \u043d. \u0434. \u2116 CARDINAL \u0433. , III \u043d. \u043e. ) .","Pursuant to DATE , the reasons for the judgment may be delivered after the judgment but not DATE following its pronouncement . In factually or legally complex cases the reasons for the judgment may be delivered within DATE after its pronouncement ( Article CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79503","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF RUCINSKI v. POLAND","importance":4,"conclusion":"No violation of Art. 5-3","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","NORP In DATE ORG ordered the applicant \u2019s house , car and premises used for commercial activities to be searched in view of the strong suspicion that he had been a member of a criminal group and had committed offences concerning property and documents .","On CARDINAL DATE the applicant was arrested and on DATE he was remanded in custody by ORG on suspicion of forging documents , financial fraud and membership of a criminal gang . The court considered that there was a reasonable risk that the applicant would tamper with evidence , given the fact that he had had close personal and business connections with several other persons charged with the same offences . On DATE ORG upheld the decision to detain him .","NORP In decisions of CARDINAL DATE and CARDINAL DATE the GPE ORG prolonged the applicant \u2019s detention , holding that there was a contradiction between the applicant \u2019s statements and the evidence collected in the course of the proceedings . In addition , some documents had been forged and the prosecuting authorities could not yet identify all the perpetrators of the offences . The court made reference to the activities already carried out and gave a precise indication of the evidence that still had to be taken . Consequently , it decided that it was indispensable to separate the applicant from the other suspects and from the evidence which had not yet been secured . The court also relied on the serious nature of the charges against the applicant and the severity of the penalty he faced .","On DATE ORG extended the charges against the applicant .","The applicant \u2019s detention was prolonged on DATE by ORG and subsequently by ORG on DATE . The courts relied on the same grounds as previously invoked by ORG . They pointed to the complexity of the case and the existence of a fear of collusion , given the applicant \u2019s role in the criminal gang and the considerable number of witnesses acquainted with the applicant who had yet to give evidence .","On DATE a bill of indictment concerning QUANTITY persons was filed with ORG . The applicant was indicted on charges of multiple fraud , insurance fraud , misuse of property and membership of a criminal gang . The prosecution asked the court to hear evidence from CARDINAL witnesses and to obtain over CARDINAL other pieces of evidence .","On DATE the ORG prolonged the applicant \u2019s detention until DATE , holding that there was a reasonable risk that the applicant and other defendants with whom he maintained close personal or business relations would tamper with evidence by inducing others to give false statements . On DATE ORG dismissed an appeal by the applicant against that decision .","On DATE and CARDINAL DATE ORG held hearings . Owing to the fact that many of the accused had entered into a plea bargain , the prosecutor filed a new bill of indictment and the hearings scheduled for CARDINAL , DATE and DATE were adjourned until DATE in order to give the accused the opportunity to familiarise themselves with the new bill .","Hearings were held on DATE , DATE , DATE , DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , DATE , DATE , DATE and DATE , CARDINAL DATE , CARDINAL May , DATE and DATE , CARDINAL , DATE , DATE ( adjourned on an application by the accused ) and DATE ( a hearing scheduled for DATE was adjourned because the lawyer of CARDINAL of the accused was absent ) , and CARDINAL , DATE , DATE , DATE , DATE and DATE .","Meanwhile , the applicant \u2019s detention was prolonged on DATE and DATE ( an appeal by the applicant was dismissed on DATE ) , DATE and DATE . The court relied on the fear of collusion stemming from the fact that many of the witnesses had not yet given evidence and that the members of the criminal group had maintained close relations . In particular , the court stressed that during the preparatory proceedings the defendants had illegally tried to contact each other . In its last decision the court also stated that the applicant and another defendant had twice lodged applications to adjourn the hearings at which it was to take evidence from the former co - accused , who possessed the greatest knowledge about the GPE activities .","On DATE ORG made an application to ORG under LAW of LAW , requesting the prolongation of the applicant \u2019s detention beyond the statutory time - limit of DATE . On DATE the Court of Appeal prolonged his detention until DATE , partly allowing the application . The court stressed that the proceedings had almost been completed and that there was therefore no need to prolong the applicant \u2019s detention for the whole period requested . Its decision was upheld on DATE .","A hearing scheduled for DATE was adjourned until DATE owing to the illness of CARDINAL of the defendants . The hearing set down for DATE had to be adjourned owing to the absence of a witness . It was held on DATE .","Further hearings were held on CARDINAL , DATE and DATE . The hearing scheduled for DATE was adjourned at the request of CARDINAL of the accused .","On DATE ORG filed another bill of indictment against the applicant and some of his co - defendants .","In the course of the proceedings , the applicant lodged several unsuccessful applications for release from detention , which were dismissed on DATE , DATE and DATE , DATE , and DATE and DATE .","On DATE ORG dismissed a second application by ORG for the prolongation of the applicant \u2019s detention . The appellate court held that ORG had failed to conclude the proceedings within the expected time - frame and that the applicant should not have to suffer the negative consequences of that fact . It further argued that the proceedings could be terminated in the course of the forthcoming hearings , given that there remained CARDINAL witness to be examined and that in the event of his absence his statements could be read out . On DATE an appeal by the prosecutor against that decision was dismissed .","Hearings were held on CARDINAL , DATE and DATE .","At the hearing on DATE the court decided to place the applicant under police supervision and to prohibit him from leaving the country .","On DATE the ORG gave judgment , convicting the applicant and sentencing him to DATE and CARDINAL months\u2019 imprisonment for a total of CARDINAL offences , most of them committed when acting within an organised criminal group .","NORP The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are set out in the ORG \u2019s judgments in the cases of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61229","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2003,"docname":"CASE OF CRAXI v. ITALY (No. 2)","importance":3,"conclusion":"Violation of Art. 8 with regard to release of transcripts into the public domain;Violation of Art. 8 with regard to reading out of transcripts at trial;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant , an NORP national born in DATE , was the general secretary of ORG ( ORG ) from DATE . From DATE to DATE he was Prime Minister of GPE . As of DATE ( according to the applicant ) or DATE ( according to the NORP authorities ) , he lived in GPE ( GPE ) .","The proceedings to which this application relates were part of the criminal proceedings brought by ORG during the so - called \u201c clean hands \u201d ( mani pulite ) campaign .","DATE , ORG issued DATE notices of prosecution ( avvisi di ORG ) in respect of the applicant , in particular for corruption , dishonest receipt of money by a public officer , concealment of dishonest gain and offences against the legislation on the financing of political parties .","On DATE , DATE and CARDINAL DATE ORG also issued notices of prosecution in respect of the applicant for dishonest receipt of money by a public officer , offences against the legislation on the financing of political parties , corruption and misuse of public office .","The prosecutions against the applicant and other figures in politics , business and public institutions received attention from the media .","Amongst the cases against the applicant was that of PERSON , which concerned payments of large sums of money made DATE by a number of firms to the representatives of political parties and the influence the latter exerted on the board of directors of the ORG company with a view to awarding contracts to those firms in connection with works on the GPE underground system .","On DATE the investigating judge committed the applicant and CARDINAL co - defendants for trial before ORG . The applicant was charged , in particular , with interference with freedom of contract and corruption .","The first trial hearing took place on DATE . The applicant was not present and ORG accordingly declared him absent ( contumace ) . Some of the accused requested and obtained a plea bargain , while the position of some other accused persons was separated from that of the applicant . The trial before ORG thus continued only against the applicant and CARDINAL co - defendants . The ORG company joined the proceedings as a civil party .","In a decision of DATE ORG remanded the applicant in custody . On DATE counsel for the applicant informed ORG that he had learned of that decision through the press and asked for a copy of it . On DATE ORG declared the applicant to be latitante , that is , to be deliberately evading the court 's jurisdiction .","The applicant appealed against the decision of DATE . In an order of CARDINAL DATE , ORG dismissed the applicant 's appeal . The court held that once the preliminary investigation was completed it was for the trial court to consider whether there were substantial indications of guilt and whether in particular there was still a danger that the applicant would abscond . In this respect the court noted that since DATE it had been impossible to find the applicant in GPE and that in the various proceedings brought against him a number of coercive measures had been ordered that could not be enforced . Moreover , in judgments of DATE and DATE the applicant had been sentenced to terms of imprisonment . In ORG view , the applicant 's lengthy stay abroad demonstrated his determination to evade the coercive measures ordered against him in DATE .","On DATE and DATE ORG sought an order for the interception of the applicant 's telephone calls between GPE and his home in GPE . The interceptions were aimed at gathering information with a view to arresting the applicant .","NORP In a decision of CARDINAL DATE ORG allowed those applications with a view to facilitating the arrest of the applicant . The court noted that the interceptions had a legal basis and were essential to supervise the applicant 's movements and his personal and international relations which had allowed him to continue absconding . The interceptions , carried out by a specialist branch of the NORP police , began on DATE and were concluded on DATE .","At the same time , ORG sought an order for the interception of the applicant 's telephone calls between GPE and his home in GPE in the context of a set of criminal proceedings for defamation which were pending against the applicant . The GPE investigating judge allowed the interceptions with a view to gathering evidence against the applicant and to identifying the accomplices . The interceptions , carried out by a specialist branch of the NORP police , began on DATE . The prosecution applied for CARDINAL extensions of the duration of the interceptions , which were allowed by the investigating judge on CARDINAL and CARDINAL DATE , and on CARDINAL and DATE . A request for a further extension was refused on CARDINAL DATE . The interceptions were thus concluded on DATE .","At the hearing on DATE in the case of PERSON , ORG in charge of the applicant 's case , Mr PERSON , filed the transcripts of the telephone interceptions with the registry and asked that they be admitted as evidence against the applicant . The prosecution argued that they were necessary to assess the applicant 's personality in order to determine the sentence if he were convicted , and that they could support the prosecution 's allegation that the applicant intended to continue to abscond . The prosecution subsequently read out in court certain extracts of interceptions with a view to proving : a ) that the applicant could leave GPE ; b ) that the applicant had started or influenced CARDINAL virulent press campaigns against a magistrate of ORG and against an NORP political party ; c ) that the applicant was collecting information concerning certain politicians and magistrates , with a view to damaging their reputation ; d ) that the applicant continued to show aggressiveness towards the magistrates who were investigating him . ORG compared the applicant 's conduct to that of a \u201c certified criminal \u201d ( criminale matricolato ) who attacked all those who had done their job and had tried to do it well . ORG declared that the transcripts of the telephone conversations were at the disposal of ORG and of the defendants .","NORP The transcript of the speech given by Mr PERSON at the hearing of CARDINAL DATE reads as follows :","\u201c I am submitting these further pleas under LAW . I have already explained why I intend to submit these documents , which consist , firstly , of assessments of LOC 's criminal potential , within the meaning of LAW , with reference in particular to his conduct after the offence was committed , and , secondly , of assessments as to whether the measure affecting his personal freedom should be maintained for the reasons for which it was decided on , and whether it should be extended for other reasons . I shall try to be extremely brief , although what I have to say will take a little time . I have tried to divide the documents submitted according to subject - matter , and have put together the telephone transcripts - the documents include the measures authorising the telephone tapping and the confiscation orders , which were moreover confirmed by the tribunale della libert\u00e0 [ the court responsible for deciding on the justification for measures restricting personal freedom or property rights ] . The first set consists of telephone transcripts and clearly shows that LOC can move about in GPE . This seems self - evident , yet LOC is someone who , during the proceedings - all the proceedings taking place in GPE - said he had a legitimate reason for not attending and sent doctors ' certificates . First he complained that the trials were not taking place , and now that the trials are taking place he wants them postponed on the grounds that he has a legitimate reason for being unable to attend . It is absolutely clear from these telephone transcripts that LOC is someone who is able to move from the address of the subscription to the telephone line on which he receives calls . Why is this important ? The reason is clear : LOC is such a liar that he continues to lie even before the courts , saying things that are untrue and belied by documentary evidence .","The second point concerns LOC as a danger to the community , in particular his capacity to operate in the current situation , and become involved in the processes whereby public opinion is shaped and in other processes , which I shall discuss . In my opinion , CARDINAL operations are particularly important - CARDINAL press campaigns which were co - ordinated ... or at any rate CARDINAL press campaigns in which LOC clearly played an important role . The first is a recent one : I am referring to the telephone calls on DATE - I apologise for the vulgarity , but I am reporting the speech of others and am not responsible .","PERSON , talking to PERSON , says , ' the son of the hero ' - the reference to Di PERSON is clear . An incomprehensible sentence ' He contributes to the tune of CARDINAL a year , no less , when it all comes out . ' PERSON says , ' Now we take the wraps off the case and then we shoot him in the balls . ' DATE the front page news is : ' PERSON too , has a house in the centre for CARDINAL . '","The second press campaign was co - ordinated directly from GPE . It is the press campaign that was waged in GPE , whose editor is PERSON . What happened ? In a nutshell , LOC sent PERSON a file on the [ NORP ] League , concerning alleged arms dealings by ORG , and PERSON willingly received and published it . What is particularly important is that , in my opinion , the file came from LOC himself : it was found on LOC 's computer or , rather , on the computer in LOC 's office in via PERSON in GPE and , in particular , was referred to in the conversation between Caprettini and LOC , in CARDINAL respects . Firstly , the subscriber - when I say subscriber , I mean Craxi - says , word for word , ' In any case we can do more with them - we can investigate but we can also raise questions . ' What he means is that they can be used to raise questions about ORG , an NORP political party receiving special attention from a fugitive from justice , who agrees with the editor of a DATE to launch a campaign of this type . The second important thing is : ' Of course I publish the article , and then I go to a prosecutor who is a friend of mine and say , \u201c Hey , look into this affair , will you ? \u201d - but this is the sort of thing one does nothing about ' . Further evidence that LOC is a liar comes from an article in the GPE , which published the news that LOC had denied being the author of the material sent to LOC . I am producing this evidence to make it clear that when we talk of LOC it is not like shooting at ORG : we are talking of someone who is fully active and has a great capacity to influence the media . In this connection , there is a set of telephone transcripts which show that LOC was in constant contact with journalists in a wide variety of areas .","Let us now move on to the last CARDINAL points which , I believe , deserve a minimum of attention .","There is documentary proof , and proof from the telephone transcripts , that LOC is mounting dossiers in GPE against some political activists . I am referring - with particular regard to the evidence that has been found - to dossiers against PERSON . He is engaging in \u201c dossierism \u201d ...","The President : What does the neologism mean ? Compiling information or a dossier ?","ORG : Compiling information in order to attack someone 's reputation . This is an activity that was also to be pursued against judges , including myself , but we shall discuss that later .","I said \u201c dossierism \u201d , which consists in compiling information that can damage people 's reputation . This is documented by the telephone transcripts . CARDINAL alarming aspect , in my view , is that it provides further evidence of PERSON criminal potential .","I am talking about compiling dossiers of information designed to damage the reputation of certain eminent people , and I am thinking of GPE , PERSON and PERSON , about whom I shall talk in connection with a specific note that was found in LOC 's office . The dossiers were mounted with a certain PERSON from GPE , who is an old friend of LOC 's - by friend I mean someone with whom he had relations which were , I imagine , of a political nature - to the extent that PERSON appears on a list of presents that LOC gave . She is a leading supporter of ORG , and is known to the judicial authorities for having arranged to put the GPE judicial authorities off the track when they were investigating the massacres , by bribing witnesses . In this connection , I can produce evidence that identifies PERSON : the order from the GPE investigating judge , Dr PERSON if I am not mistaken , which shows that the most recent contact between ORG and PERSON dates back to DATE , and which makes it clear that she attempted to put the investigators off track and bribed witnesses in the course of the proceedings . These are the sort of people PERSON , a fugitive from justice who is the subject of pre - trial detention orders , uses in order to hinder investigations . You will be able to see for yourselves what these documents contain , and I shall not dwell on them . What is significant is another note on ORG also found in LOC 's office . I shall read you out the beginning so you can understand what all this is about . ORG administration has always helped to support the NORP current of ORG ] . PERSON took over from ORG , and the flow of money never stopped . ' On average , PERSON received CARDINAL to CARDINAL a month from GPE . On the occasion of every election or conference , there were extraordinary payments for instance , and so it went on ' , and the note continues with information about the politician .","There are also telephone transcripts of statements by PERSON in which he appears to be talking about GPE ... These are statements that have been filed and can be seen by anyone : it is clear to all why they are important from a criminal point of view .","Then there are documents that show that PERSON has , or at any rate had , relations with important members of the NORP institutions . I am referring in particular to the telephone transcript of DATE , during which the subscriber , LOC , talks to Margherita - she is not identified , who says : ' PERSON told me that he attended a meeting between PERSON and PERSON , and they spent TIME talking about you alone . PERSON came to GPE to see you and told PERSON to tell you that he too would be happy to have you as his guest in GPE . ' Again in connection with the capacity for communication of the accused , PERSON , who I repeat is a fugitive from justice and the subject of an arrest warrant for corruption with aggravating circumstances , there is a letter which the ORG Under - Secretary to the Prime Minister 's office sent to LOC 's secretary on DATE , in which the ORG Under - Secretary to the Prime Minister 's office writes : \u201c Dear PERSON , what you feared has happened , although both PERSON and GPE promise their good offices and will put things right ' .","Basically , this concerns a recommendation addressed to the ORG Under - Secretary , who hastens to reply , saying ... PERSON is PERSON . And let it be clear that PERSON is nobody in her own right , and yet as PERSON secretary she was still able , on DATE , to make recommendations concerning the allocation of service areas in GPE .","The last point on which I intend to dwell is the constant attacks by PERSON on those who investigated him . The right to defend oneself is sacred and culminates in a fair trial , but when it is exercised by attacking those involved in the proceedings , those who carried out the investigations , it is , in my view , proof of a very highly developed potential for crime .","A note found in LOC 's office - LOC 's own office - you may , if you wish , in this connection hear PERSON , who , I repeat , confirmed this - contained , among other pleasantries , a very precise reference in time in the form of ORG 's release from prison - it is dated after ORG 's release . Among the pleasantries , the note says : ' The PERSON case must become an exemplary case : we must get to the bottom of things because all the conditions are right . The usual logic of hitting CARDINAL person in order to teach CARDINAL others a lesson . ORG must regain its independence and this means it must not be subjected to the requirements of allies and exposed to dangers and uncertainty . There are key targets , particularly FAC [ a group of GPE public prosecutors waging war on corruption ] . We need to have the courage to call for its arrest before they do . We need to denounce the damage caused by the revolt . We must begin by using people as examples and waging war . We need to use parliamentary force in every way possible . This includes calling for enquiries with a lot of publicity and denouncing abuses of authority - by LOC . There is the seizure of the parliamentary question from Maiolo , faxed by ORG parliamentary group ... PERSON , who sent it for information to PERSON DATE with a covering letter which says : ' I would point out , inter alia , that Maiolo has in TIME been collecting more documentation with a view to asking further questions in the near future about the management of ORG . ' There are telephone transcripts in which we read : ' We need to bombard them in the press ' . There are also attacks connected with what was published in PERSON . There is something for everyone - not just for ORG . There are attacks on other colleagues and references to other colleagues . A woman talking to LOC says , ' He 's bewildered too ' and says that the person in question was used by ORG group as a killer ; she says she has heard from PERSON that the person coming down to speak is virtually in the service of PERSON . I will spare you all the rest because you can read it for yourself . I shall just read you one extract , partly because it concerns me and partly because it concerns these proceedings . ' So why does n't someone else come ? ' , with reference to PERSON , who is clearly involved ... he knows the truth of the matter . ' I think GPE stopped him . ' ' I am about ' - here it is the subscriber , PERSON , speaking - ' to denounce this PERSON . Both PERSON 's statements against PERSON and the statements by PERSON come under LAW [ of LAW ] ' .","He is speaking to a certain PERSON , who has not yet been identified , but I hope very soon to identify him , who repeats , ' Yes , but he 's dealing with it . ' LOC replies , ' He has nothing to do with this . ' The person to whom he is speaking says , ' No , of course not . The minister 's dealing with it . '","The President : The public prosecutor is requested to bring the charges without making allusions or taking stands , or making comments of a personal nature .","The public prosecutor : President , the charge is based on the premise that these telephone transcripts show , within the meaning of LAW , behaviour - and this is where the accused , PERSON , has committed an offence - worthy of a certified criminal - it is the behaviour of someone who attacks all those who have simply done their job , because that is what they are paid to do and that is what they have chosen to do , and have sought to do it properly , but he does n't care , he has to attack them and ...","President : We have understood why the public prosecutor has asked for these documents to be produced .","Public Prosecutor : The evidence submitted has been greatly summarised , President , because there is further material and I am at the disposal of defence counsel and the court . Ah , wait TIME - there are all the measures authorising the requests for telephone tapping and seizures ; they are all appended .","The President : Appended to the individual sets of evidence ... these pleas from the public prosecutor ... Let us begin to hear LOC 's defence counsel , who is the person most directly concerned , and then if the others want to intervene ... \u201d","The applicant 's lawyer requested to be granted access to the decisions authorising the interceptions and to all the documents to which ORG had made reference . He declared that he would have commented on them at a later stage , observing , anyway , that some of the facts imputed to his client could not be described as aggressive behaviours , being rather simple statements of the truth .","The ORG reserved its decision on the prosecution 's request of admittance of evidence until the hearing of DATE . The transcripts of the telephone conversations intercepted on the applicant 's line were made available to the parties immediately after the hearing of CARDINAL DATE . PERSON , the applicant 's lawyer , was provided with the file including all the transcripts and afforded the possibility of making written submissions .","Respectively on CARDINAL and DATE , the CARDINAL applicant 's counsels ( Mr PERSON and PERSON ) were informed that the telephone interceptions had been filed with ORG registry . The applicant 's counsels subsequently objected to the admission of the interceptions as evidence . In particular , they argued that contrary to LAW hereinafter , the \u201c CPP \u201d ) ORG had failed to hold a specific sitting before the trial hearing in the presence of both the defence counsels and of the prosecution in order to select those interceptions that were significant and exclude those considered illegal . Further , the prosecution had failed to apply for an extension of the DATE duration of the telephone tapping , so that those interceptions which had been carried out after DATE were illegal and could not be used .","The content and the name of the interlocutors of certain telephone conversations were subsequently published in the press .","NORP In particular , \" PERSON \" of CARDINAL DATE published an article entitled \u201c PERSON and conspiracies against PERSON [ one of the magistrates of the clean hands team ] \" . It stated that the interceptions made on the applicant 's phone showed that he was preparing a defamatory campaign against some political men with the help of a \" lady from GPE \" , who was a member of an illegal association of free - masons . Moreover , in CARDINAL of the interceptions PERSON ( an NORP politician ) had told LOC that Mr PERSON ( the current Prime Minister of GPE ) had had a conversation with Mr PERSON about him and that PERSON would have \" invited \" LOC . In another telephone call , the son of one of the applicant 's lawyers had said that \" the Minister \" would have commenced proceedings against Mr PERSON .","On DATE , as well as on CARDINAL and DATE , PERSON also published the following extracts from some of the intercepted phone calls .","Conversation on DATE with a certain PERSON :","LOC ( speaking with PERSON ) : \u201c This PERSON [ ORG ] is another one who wants to make a show of himself , I am going to see whether there are elements to introduce a criminal complaint against him . \u201d","Conversation on DATE with an unknown woman :","Woman : \u201c I 'm in a telephone box in GPE . I saw that friend of yours from the ORG . \u201d","Craxi : \u201c Why has this big friend of mine failed to say CARDINAL single word ? \u201d","Woman : \u201c He leaves the comments to you . He is lost and says that this person had been used by ORG group as a killer . He says that he knew from PERSON that the one who spoke is in practice a servant of PERSON [ a well - known NORP magistrate ] . \u201d","Craxi : \u201c Ah , yes ? \u201d","Woman : \u201c Concerning the story of the brother . \u201d","Conversation on DATE with an unidentified friend :","Craxi : \u201c They should go and see . It should be established whether a magistrate can buy a ORG at a very favorable price . DATE he borrow money from a friend in order to pay his gambling debts ? So all this is legitimate , it can be done . Let 's put it in the law : magistrates may borrow money without paying legal interests . \u201d","Conversation on DATE with an unknown man :","man : \u201c DATE I will provide you with all the things you asked me on ORG [ a press agency ] , the most important thing [ is ] that , at least until DATE , I do not know if now he has been revoked , ORG was a counsellor of its biggest company . \u201d","Craxi : \u201c Ah , ah , ah , very well , give me all the data , please . \u201d","man : \u201c Counsellor of its biggest company , CARDINAL of the CARDINAL members of the directing body was ORG , so ... \u201d","Craxi : \u201c Super , then I would like to have the material concerning that other thing ... \u201d","Conversation on DATE with Mr PERSON [ a journalist ] :","Craxi : \u201c ... There are some pillars in GPE [ term used by the press to design the corruption system disclosed by the clean hands inquiry ] that stayed outside , they should be all those who stayed inside , then we can find the solution , but no kidding , I am not getting upset because of the apartment of GPE [ an NORP politician who had subsequently been the Prime Minister of GPE ] ... \u201d","PERSON : \u201c Sorry , the phone fell while I was taking the book , pages CARDINAL and CARDINAL , where it speaks about PERSON ... \u201d","Craxi : \u201c There is a tale , not really about that thing which will make a little scandal , but it will be a regular contract on which it was not possible to lay ... lies are others and this one PERSON is another GPE , close to GPE , fuck him . ORG in GPE opened an inquiry for calumny , but DATE of reckoning will come , son of ... \u201d","Conversation on DATE with a certain PERSON :","Craxi : \u201c What is going on with the inquiry of PERSON ? Now it does not concern PERSON , but myself ? \u201d","PERSON : \u201c These are saying that they brought papers against you . \u201d","Craxi : \u201c What papers ? \u201d","PERSON : \u201c The papers concerning the search . \u201d","Craxi : \u201c The papers concerning the search have nothing to do with PERSON . \u201d","Conversation on DATE with lawyer PERSON :","Guiso : \u201c PERSON is in Cernobbio . Today Il corriere della sera says that he is nobody , and he had been recommended - and this is very important - by an agent of the branch of the NORP police investigating on financial matters . He is substantially accompanied by him , please consider that he had been DATE in GPE and appears in Cernobbio , he should speak TIME on the subject \u201c foreign politic , ethic and finance . \u201d","Craxi : \u201c It 's crazy , but it is the subject of ORG . \u201d","Guiso : \u201c [ This ] shows that he was linked to GPE , not at all the uncertain future he had declared when he abandoned his post . Then , a journalist gave me a book with plenty of information . I can not send it to you by fax as the characters are very small . \u201d","Craxi : \u201c Send it to me to that address by ORG . To that address you know . \u201d","Conversation on DATE with a journalist of \u201c GPE \u201d :","Journalist : \u201c Did you hear about the new NORP politicians ? \u201d","Craxi : \u201c Who are they ? \u201d","Journalist : \u201c PERSON . \u201d","Craxi : \u201c A little adventurous trafficker ( avventuriero trafficante ) . \u201d","Conversation on DATE on LOC 's line in GPE . Mrs. PERSON speaks with a certain PERSON :","PERSON : \u201c I have interesting news to give him . \u201d","PERSON : \u201c He says you can send a fax . \u201d","PERSON : \u201c I will send it DATE with some references to GPE . \u201d","PERSON : \u201c Let 's use a code , a slightly modified code , we know of what kind of persons we are speaking about . \u201d","PERSON : \u201c I will send some telephone numbers ... I had been told that the mother is a very worldly - minded person . \u201d","PERSON : \u201c Newly rich , all this is useful for us , maybe also apartments ... \u201d","Conversation on DATE with a certain PERSON :","Craxi : \u201c The problem was to build up the physiognomy of the personage ... In sum , this is the clue , it seems he had made a number of things on which he was wrong . \u201d","PERSON : \u201c It is an enormous thing , there are CARDINAL documents per day . \u201d","Craxi : \u201c The trials he made , I know about something , we should look at them , people say that the tribunal shut the door in his face , they speak about the preparation of some books by certain friends , ask to send them the list of the members of the publishing house . \u201d","Conversation on DATE with Mr PERSON , a journalist :","Craxi : \u201c You should speak with somebody who will come and speak to me . The problem ... is to have the hands free and to have information . \u201d","PERSON : \u201c We have some . \u201d","Craxi : \u201c What is a newspaper like this doing , scandal and satire , is n't it ? \u201d","PERSON : \u201c We were the sole newspaper is GPE which published documents on red gladio [ a secret organization that ORG was suspected to have built in order to achieve its aims during the cold war ] ... judges have discontinued the proceedings on this matter . \u201d","Craxi : \u201c It is not the only matter on which they discontinued proceedings , there is a systematic tendency to discontinue proceedings concerning ORG . \u201d","PERSON : \u201c Do you know what we have discovered ? That apart from ORG , also the gangster PERSON was a member of gladio and had been trained abroad ... also the CARDINAL of the gold of PERSON . \u201d","Craxi : \u201c There are many things . They believe they have solved the problem with the scapegoat , they are under an illusion , they should have killed me , but as they did not succeed in this ... they tried twice , once the NORP intelligence , once the LANGUAGE one . \u201d","PERSON : \u201c Mr. President , be careful , I know that here in GPE they want to organize [ something ] , to come [ over there ] and take you , it seems they are offering MONEY , which is CARDINAL MONEY ] per person , within the intelligence , in order to take you and to bring you elsewhere . \u201d","Craxi : \u201c All right , all right , try to do so . \u201d","PERSON : \u201c I am telling you this because a person I trust during his last meeting with me ... I know that a group ORG has been constituted , kept in the shade of a free - masons organisation constituted by CARDINAL magistrates , and the head of this group would be PERSON [ the President of GPE at the relevant time ] . \u201d","Craxi : \u201c I heard about this thing , but I do not believe it , I am not convinced . \u201d","Conversation on DATE with an unidentified journalist :","journalist : \u201c Will Salamone come [ to see you in GPE ] ? \u201d","Craxi : \u201c I have no idea . I am here , everybody knows where I can be found . \u201d","Conversation on DATE with an unknown journalist :","Journalist : \u201c I will state that you said : \u201c I have friends not only in the NORP world and I think that in a NORP capital a center such as the LOC center will be built , [ and this center ] will investigate the judicial clans and all those who in DATE had acted unfairly against me and against many other people . \u201d","Craxi : \u201c No , that is not good . First of all it is not only against me , it is not the judicial clans , but all the clans including the judicial ones ... [ a center which ] looks after and will look for the truth ... So much truth which still has to come out . \u201d","Journalist : \u201c Then I ask you the thing on PERSON and then you will answer \u201c I 'm writing a book which will be entitled \u201c GPE an NORP miracle . \u201d","Craxi : \u201c No , I want to write , I want to write a little book , not a book ... It 's too important . \u201d","Conversation on DATE with Mr PERSON , a journalist :","PERSON : \u201c Now I 'm working for \u201c Il tempo \u201d , and the television show of ORG has started again ... I saw that thing about ORG [ the NORP electric energy producing company ] . \u201d","Craxi : \u201c This story on DATE 's \u201c Il giornale \u201d is the end of the world , do you know whom the political personality I am referring to is ? \u201d","PERSON : \u201c No , frankly not . \u201d","Craxi : \u201c It 's PERSON , there is a statement [ made by ] PERSON [ a director of ORG who was accused of corruption and made statements calling into question the criminal liability of LOC and other politicians ] . \u201d","PERSON : \u201c ... about which you speak in your books . \u201d","Craxi : \u201c I was n't aware , there is a statement [ made by ] PERSON exposing DATE , but there is a continuity in the criminal offence , he took part in a meeting in PERSON or ORG in which were present GPE , the regional secretary of ORG and others , where he , as a representative of ORG ... discussed the contracts for public works in GPE . \u201d","PERSON \u201c What about this statement ? \u201d","Craxi : \u201c I have it , I will forward it to you . \u201d","PERSON : \u201c Maybe , I will call you DATE . \u201d","Craxi : \u201c Now a number of things will come out on that young man . \u201d","PERSON : \u201c They are getting a different turn ... all the things about GPE . \u201d","Craxi : \u201c Those things from GPE are the less [ important ] , there are other things ... I would like to be personally informed . I would like to have a fax number where I can send things to you . \u201d","Conversation on DATE with a certain PERSON :","PERSON : \u201c The fax is broken , I would have liked to send you some extracts from DATE 's and DATE 's newspapers concerning that little dog named PERSON [ probably , the former GPE magistrate GPE ] and his son . Did you see them ? \u201d","Craxi : \u201c Yes , yes , thanks . \u201d","Conversation on DATE with ORG , the applicant 's son :","PERSON : \u201c The thing will come out DATE . \u201d","Craxi : \u201c Not the next one . \u201d","PERSON : \u201c Not DATE , also because DATE ] there is the ORG case . It will come out DATE , it 's CARDINAL pages and they will anticipate it . \u201d","Craxi : \u201c all right , it will be DATE and they will be afraid . \u201d","Conversation on DATE with PERSON , a journalist :","PERSON ( speaking with LOC ) : \u201c The thing has already been paged up . I will forward it to you in advance ... we will put a big emphasis on it , we already have an agreement with Il corriere della sera in the sense that they will make big titles , do n't worry because it is very well managed , you will see , it will have a big impact . \u201d","Conversation on DATE with Mrs. PERSON :","PERSON : \u201c Apart from these documents , I have a channel to acquire more detailed information , but I need that you organize an appointment . \u201d","Conversation on DATE with a certain PERSON :","Craxi : \u201c They should be attacked frontally , without fear , to PERSON they are doing ... This PERSON is behaving like a pure mafioso , an arrogance from the power . \u201d","PERSON : \u201c There is no other alternative but screaming it in their face , we will do it , we will do it . Here everything is all right except for that little asshole of PERSON [ an NORP politician ] . \u201d","Conversation on DATE with a certain PERSON [ probably PERSON PERSON , the son of one of the lawyers officially representing LOC in the PERSON trial . Mr PERSON , who is also a lawyer , acted as his father 's substitute during some hearings ] :","PERSON : \u201c Yes , he will think about it . \u201d","Craxi : \u201c He has nothing to do with this . \u201d","PERSON : \u201c No , sure he has , the ministry will think about this . \u201d","Craxi : \u201c Because it 's CARDINAL [ Article of the Criminal Code punishing the attempt to impede the functioning of the LAW organs ] . \u201d","PERSON : \u201c This is something up to him . \u201d","Craxi : \u201c To introduce a claim calmly is CARDINAL thing , but one can not make all the comments and the political polemics , the speculation made by PERSON is a defamatory one . \u201d","PERSON : \u201c But now the serious point is to give him a hand . It is essential to break them on this GPE thing which is the only one they are afraid of , so as he has a number of suspicions , he needs it as he needs bread . \u201d","Craxi : \u201c I am completely unaware of that story . \u201d","PERSON : \u201c I have a lot of material . \u201d","Craxi : \u201c I will immediately deal with this matter , DATE I will send faxes and then I will keep [ you ] informed . \u201d","PERSON ; \u201c Then , it is important to ask for the availability of the ORG . \u201d","Craxi : \u201c Is it enough that it arrives immediately , then you will call when it leaves . \u201d","PERSON : \u201c We are doing everything very quickly , then I will go directly to GPE . In any case this one with whom we are working together can be trusted , then the serious thing is that he is using the same elements of GPE , therefore it would be a big mess if it comes out that with the same elements GPE failed to proceed , there are many ideas to be used . \u201d","Conversation on an unspecified date with a certain Mr. PERSON :","Craxi : \u201c That one is an idiot , a first - class idiot . \u201d","PERSON : \u201c He was replaced by ... \u201d","Craxi : \u201c He was replaced because he was incompetent . \u201d","PERSON : \u201c He was replaced by PERSON . \u201d","Craxi : \u201c He was incompetent . \u201d","PERSON : \u201c He tried to suggest that his replacement ... \u201d","Craxi : \u201c Of course not ... \u201d","PERSON : \u201c They presented themselves as supporters of An [ NORP nazionale , an NORP political party ] . \u201d","Craxi : \u201c Precisely ... but that one is an idiot , an unpretentious personage , I do not know how he could have arrived there . \u201d","PERSON also reported that in another conversation with an unknown person , LOC had showed his appreciation for a recital with PERSON transmitted by the NORP television ; when he had learned that his friend had not seen it , he had said : \u201c Phone Rossella [ the director of a news bulletin ] and make them send the cassette to you . \u201d","\u201c LOC \u201d of DATE published an article entitled \u201c The attempts to create false evidence by the friend of the head of PCARDINAL [ an illegal free masons association ] \u201d . It made reference to a telephone conversation that the applicant had had on DATE with PERSON , in which the discussion concerned \u201c documents made ad hoc \u201d in order to be sent to an editorial company . The article reported the links allegedly existing between PERSON and Mr PERSON , head of the PCARDINAL .","\u201c GPE \u201d of DATE published an article entitled \u201c We will ask for the arrest of the [ clean hands ] Pool \u201d . As far as it concerned the telephone interceptions , the article indicated the names of some journalists who had spoken with the applicant on the phone , and the content of the telephone conversation with PERSON reported by PERSON . GPE moreover reported the content of a phone call that the applicant had had with Mr PERSON , his \u201c speaker in GPE \u201d , on DATE . The conversation at issue was interpreted as an attempt to attack Mr PERSON in relation to an apartment rented to his son . Its content was the following .","Iosi : \u201c The son of the hero contributes DATE for MONEY [ approximately CARDINAL MONEY ] . \u201d","Craxi : \u201c So much ... When will this thing come out ? \u201d","Iosi : \u201c Now we will make the case grow and then we will shoot them right in the balls [ NORP expression which means to attack someone hardly ] , MONEY [ approximately CARDINAL euros ] in spite of the rent rates and formally in his own name only in order to put his son in it . \u201d","GPE also reported the content of some telephone conversations the applicant had had with PERSON , with a certain PERSON , with Mr PERSON ( the director of an NORP newspaper ) , with PERSON and Mr PERSON ( CARDINAL journalists ) , and with a certain PERSON . Their content is the following .","Conversation on DATE :","Craxi : \u201c PERSON , in this moment you are not helping me . \u201d","Mentana : \u201c You mean , honouring the truth . \u201d","Craxi : \u201c By reporting the things I am saying , for GPE sake , nothing more ... The boys from ORG [ a political organisation ] did something TIME . \u201d","Mentana : \u201c I 'm not aware of this . \u201d","Craxi : \u201c Think about it , nobody was there , there were no televisions , now you should report this news , report this news at least , they were CARDINAL , they are good , I have sent a memorial of historical nature , something about the ORG [ an NORP patriot ] ... if you continue , you will see the little surprise . \u201d","Conversation on DATE :","Craxi : \u201c I should come as I came many times in GPE with moustaches : in fact I was coming with a wig and false moustaches ... Idiots . \u201d","PERSON : \u201c This is the moment to do something about the procedural guaranties , about the magistrates , about the pentiti , PERSON , PERSON [ persons accused by pentiti in mafia trials ] , if you are not taking advantage from these occasions , there would be nothing you could do . \u201d","Craxi : \u201c Let 's say the truth , there are some gangs organising a push - off , real gangs . \u201d","PERSON : \u201c PERSON [ nick - name of LOC ] , there are idiots , inefficient persons , cowards . \u201d","Craxi : \u201c no , no , they reached an agreement , and lack of courage is inside the information , as all this would n't happen if there were n't a number of cowards in the newspapers and the televisions . \u201d","PERSON : \u201c My director is a person who believes in nothing , therefore he is keen on his position and there is somebody protecting him and his friends [ to continue ] believing in nothing . \u201d","Conversation on DATE :","Caprettini : \u201c I believe , the funny thing is the following , you know what I am going to do , I will of course publish this thing , then I will address myself to a magistrate friend and then I 'll tell him : let 's investigate on this matter , so we 'll keep the problem alive . \u201d","Conversation on DATE :","LOC ( speaking with PERSON ) : \u201c I ca n't understand what is going on in GPE , if we are going to the elections immediately or not ; in the affirmative , there is nothing to do ; in the negative , in DATE time we will sort out a socialist list , we will put a nice pink carnation [ the symbol of the FAC ] on it . I will make the socialist list being made , no kidding . This situation can not be accepted anymore . \u201d","Conversation on DATE :","PERSON : \u201c I had information about this , it is hearsay , the father of PERSON in DATE was the Secretary of the LOC [ University fascist group ] of GPE , it is for sure . \u201d","Craxi : \u201c I would like to have a more precise .. \u201d","PERSON : \u201c I can provide you with the whole story , because after having caused the death of CARDINAL people , he told it to a journalist . \u201d","Craxi : \u201c And then we will deal also with the betrayer . \u201d","Conversation on DATE :","Craxi : \u201c Send me a text . \u201d","PERSON : \u201c it is very important , I will send it to you and you will forward it to ORG , Mr GPE ... Now the important point is to give them a hand , to attack them on this GPE thing which is the only one they fear ... this person who is working with us is somebody I trust , then the serious thing is that he is using the same elements of GPE , which will prove that with the same elements GPE failed to proceed . \u201d","GPE also reported the following telephone conversation current on DATE between PERSON , the applicant 's wife , and PERSON PERSON , the wife of the actual Prime Minister of GPE .","PERSON : \u201c PERSON , how are you ? \u201d","PERSON : \u201c And how do you do , everything all right ? \u201d","PERSON : \u201c Everything all right , we arrived in GPE DATE . The trip was extremely tiring ... \u201d","GPE noted that \u201c the day on which PERSON made her polite phone call to her friend , the husband of the latter had already been declared latitante [ which means deliberately evading justice ] by ORG \u201d .","Il corriere della sera of DATE published the content of a telephone conversation that the applicant had with a certain PERSON , afterwards identified as Mr PERSON . The text is the following .","PERSON : \u201c We should say we are ready to be heard . Because this is an interesting situation . I had a number of contacts with this magistrate . \u201d","Craxi : \u201c All right . In the meanwhile I do not even know what these things are . \u201d","PERSON : \u201c It 's obvious , but he knows that it is not absolutely irrelevant . \u201d","Craxi : \u201c In view of a speech of a general nature . \u201d","PERSON : \u201c Correct . He knows that [ this ] has nothing to do with that other story ; it 's only stuff he inserted in order to come and hear you . \u201d","Craxi : \u201c Send me a text . \u201d","PERSON : \u201c It 's very important . I 'll send it and you will forward it to Mr GPE , ORG attached to ORG . Do you have that note ? \u201d","Craxi : \u201c I did not even read it . \u201d","PERSON : \u201c Look at it , because it is a serious thing . There wo n't be any problem with GPE . \u201d","Craxi : \u201c Here they are a little bit upset with GPE , in general . I will intervene . \u201d","PERSON : \u201c In this way , we will create a great problem for them , as this [ person ] told me very interesting things . For instance , he has consulted PERSON [ a branch of the NORP police ] , and you are in the list of latitanti . So a big contrast will be created , which would help us a lot . \u201d","Craxi : \u201c Why ? \u201d","PERSON : \u201c Because then we will be able to prove that the order declaring you latitante was arbitrary . So , if we can bring him [ seeing you ] it would be difficult for them to justify the fact that you are evading justice . \u201d","Craxi : \u201c So the other one is not going to come ? \u201d","PERSON : \u201c He has been blocked in GPE . \u201d","Craxi : \u201c I do not believe it . \u201d","PERSON : \u201c Yes , I know it for sure , he told me . This one , on the contrary , is ready to do seas and mountains [ NORP expression which means everything is necessary in order to achieve one 's aims ] . \u201d","PERSON : \u201c Then at the Ministry there is an agreement , it would be ... \u201d","On DATE Il corriere della sera published an interview with Mr PERSON , who explained that the telephone call at issue did not concern a \u201c conspiracy \u201d organised by the applicant , and a letter of PERSON , challenging the opportunity of putting in the file the conversation she had had with the applicant 's wife . Articles appeared in ORG della sera and in other newspapers concerning interviews and declarations made by Mr GPE , ORG attached to ORG , who criticised the release into the public domain of the telephone interceptions and declared that he had never followed irregular procedures in order to serve the interests of the applicant . The latter was at freedom to believe that he could have taken advantage from the legitimate and impartial investigations that Mr GPE was making . Other declarations made by the persons who spoke with the applicant on the phone were published by the press , as well as the replies of the applicant to the speech made by Mr PERSON on DATE . The applicant stated , in particular , that ORG at issue was a \u201c certified liar \u201d ( bugiardo matricolato ) and had used a \u201c NORP \u201d language .","In DATE , GPE , PERSON and ORG della sera published articles which referred to the above mentioned telephone conversations and to the speech made by PERSON at the hearing of DATE . They included attempts to interpret the precise meaning of the conversations . Some of the newspapers commented that the transcripts of the telephone conversations showed , together with other elements , that the applicant was trying to use his influence and his relationships to organise a defamatory campaign against his political adversaries and against the magistrates who were investigating on him . It was moreover discussed in the press whether the applicant had the power to influence the political line of the party ORG , with some members of which he had , apparently , kept close contacts . GPE of DATE published an article written on DATE by the applicant himself and containing considerations of a political nature .","Mr Paolo Ielo granted the press a number of interviews on the matter ; he declared he regretted having compared the applicant to a \u201c certified criminal \u201d , but that it was his duty to control the telephone conversations of a person who was deliberately evading a court order . Even if the telephone interceptions did not disclose any criminally relevant behaviour , they should be taken into account in order to assess the applicant 's personality and to fix the penalty that ORG could have demanded at the outset of the court proceedings .","At the hearing of DATE ORG asked the parties to clarify who had disclosed to the press the content of the telephone interceptions before the competent judicial authority had had the opportunity of pronouncing itself on their admissibility . Mr PERSON pointed out that immediately after the hearing of CARDINAL DATE , the file containing all the telephone interceptions had been forwarded to PERSON , the applicant 's lawyer ; the file had been returned to ORG only the following DATE , when part of the transcripts had already been released into the public domain . Mr PERSON concluded that ORG could not be held responsible for the divulging of these acts . The representative of the civil party declared that he had nothing to say on this point : he had not copied the transcripts and he had not given them to third persons . Mr Guiso confirmed the version given by Mr PERSON . He indicated that he had copied the file which had been forwarded to him , but that this was done in a particularly secret manner , in order to protect the applicant 's interests and to avoid any divulging which could be prejudicial for him . Some journalists had requested to be granted access to the transcripts , but Mr PERSON had categorically refused . Mr Giuso underlined that , as prescribed by the law , the file with the transcripts had been made available to all the parties of the trial , and not only to the applicant 's defence lawyers . Mr PERSON concluded that the divulging of the transcripts was clearly due to the action of third persons . He was not interested in that , the only point he wanted to raise being why the telephone interceptions had been presented at the public hearing . The lawyers of the other accused persons declared that they were not responsible for the disclosure .","In an order of DATE , ORG found that contrary to the applicant 's allegations ( see paragraph CARDINAL above ) , the failure to hold a specific hearing prior to the trial in order to select the intercepted telephone conversations did not amount to a violation of the relevant provisions of NORP law . ORG first observed that according to LAW case law , failure to respect the formalities indicated in LAW and CARDINAL of the CPP did not prevent the use of the interceptions . It moreover noted that according to LAW , the said LAW , which concerned wire - tapings made during the preliminary investigations , could apply to the trial phase only \u201c if possible \u201d . In the present case , the selection of the material had been made in the presence of the parties and in its \u201c natural \u201d place , which was the trial hearing . ORG however decided not to make use of the information yielded by the telephone interceptions made DATE and DATE , in that they were relevant but not \u201c absolutely necessary \u201d within the meaning of LAW ORG in order to assess the applicant 's personality . ORG further held that the interceptions made after DATE could not be used as evidence , as no application had been made by the prosecutor for an extension of the duration of interception , nor could such authorisation be considered as having been implicitly granted for as long as the applicant would be absconding .","In a judgment of DATE , ORG convicted the applicant to a penalty of DATE and DATE imprisonment and to a fine of MONEY ( MONEY ) . This sentence was confirmed on appeal on DATE . However , the appeal judgment was quashed by ORG and the case was re - heard by ORG , which , on DATE , reduced the penalty imposed on the applicant to DATE and DATE imprisonment . This decision became final on DATE .","The applicant complained about the unfairness of the PERSON criminal proceedings in the ambit of application no CARDINAL\/CARDINAL , introduced on DATE . In a decision of DATE , the ORG declared this application inadmissible .","Article CARDINAL \u00a7 CARDINAL of the CPP allows ORG to accomplish , even after the committal for trial , further investigation acts ( attivit\u00e0 integrativa di indagine ) with a view to presenting requests to the trial judge . All the documents concerning these acts are immediately filed with ORG registry . Counsels for the defendants and for the civil party are granted access to the acts at issue and may obtain a copy of them .","Article CARDINAL of the ORG states that ORG should file in its registry the transcripts of any telephone conversation which has been wire - tapped . Counsels for the defendants and for the civil party are granted access to these transcripts and may obtain a copy of them .","Article CARDINAL \u00a7 CARDINAL of the ORG prohibits the partial or total publication of any act or document to which the secrecy rule applies . According to LAW ORG , this rule of secrecy covers all the acts made by ORG or the police during the investigations , but ceases to apply at the end of the preliminary investigations . Once the trial has commenced , the prohibition to publish covers all the acts included in ORG file ( fascicolo del pubblico ministero ) until the delivery of the appeal judgment ( see LAW ORG ) . The acts not covered by the secrecy rule can always be published ( see LAW ORG ) .","According to LAW , the representatives of the parties are informed that , within a determined time - limit , they may examine the transcripts of the interceptions and hear their content . Once this time - limit has expired , the judge should order the inclusion into the file of all the conversations which are not manifestly irrelevant . He should proceed , even ex officio , to the exclusion ( stralcio ) of the material whose use is prohibited . ORG and the defence lawyers have the right to take part to the exclusion procedure and are informed about it CARDINAL in advance ( Il pubblico ministero e i difensori hanno diritto di partecipare allo stralcio e sono avvisati almeno ventiquattro ore prima ) .","According to LAW , the results of the telephone interceptions can not be used if they have been done in cases non permitted by law or if the prescriptions of ORG CARDINAL and CARDINAL \u00a7 \u00a7 CARDINAL have not been respected .","Article CARDINAL \u00a7 CARDINAL of the CPP stipulates that in order to facilitate the researches of a person who is deliberately evading the court 's jurisdiction , the Public prosecutor or the judge may order telephone interceptions . In this case , the provisions of Article CARDINAL should apply \u201c if possible \u201d ( ove possibile ) ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86352","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2008,"docname":"CASE OF RAPOS v. SLOVAKIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant sued a limited company before the Bratislava II ORG . He claimed royalties for a furniture line which he had designed .","On DATE ORG granted the applicant \u2019s request that a second company should be joined to the proceedings as a defendant . On DATE ORG in GPE upheld that decision .","As the first defendant was declared insolvent , the applicant withdrew his claim against it on DATE . That company was subsequently deleted from the companies register .","On DATE the Bratislava II ORG decided to transfer the case to ORG in PERSON . On DATE ORG decided that the case fell within the jurisdiction of the Bratislava II ORG .","DATE and DATE ORG scheduled CARDINAL hearings . The defendant \u2019s representative failed to appear on QUANTITY occasions .","On DATE ORG dismissed the applicant \u2019s claim . On DATE the applicant appealed .","On DATE ORG quashed the first - instance judgment . The court of appeal held that the applicant was entitled to remuneration for the design in question . Further evidence was to be taken with a view to determining the amount .","DATE and DATE the file was examined by ORG .","On DATE the case was assigned to a different judge of ORG .","On DATE , ORG appointed an expert . As the expert stated that he was not competent in the area concerned , a different expert was appointed on DATE . On account of the latter \u2019s health problems , a third expert was appointed on DATE . The third expert informed ORG that he was not qualified to determine remuneration for artistic design , and for this reason a fourth expert was appointed on DATE . That expert informed the court that she was not authorised to prepare an opinion on the point in issue . On DATE the Bratislava II ORG appointed a fifth expert with a view to having determined the remuneration due to the applicant . On DATE that expert replied that he was not entitled to give an opinion on the point in issue . On DATE the court asked the second expert , who had earlier stated that he was suffering from health problems , whether he could submit an opinion . He replied in the negative .","On DATE the judge made a note in the file indicating that it had been impossible to find an expert in intellectual property who was qualified to determine royalties for the design of office furniture .","On DATE ORG asked CARDINAL companies for information on royalties paid to furniture designers . It repeated the request on DATE .","In DATE the court sent a similar request to ORG , ORG , ORG and ORG . In DATE and DATE the court urged ORG to submit the information .","On DATE ORG held a hearing . The applicant was asked to submit documentary evidence concerning the use by the defendant of the furniture line designed by him . The applicant submitted the evidence on DATE .","On DATE ORG appointed an expert in household equipment and furniture and asked him to submit an opinion within DATE . That expert has been registered in the list of experts , translators and interpreters of ORG since DATE . He submitted the opinion on DATE . On DATE ORG decided on the expert \u2019s fees .","The proceedings are pending .","On DATE the applicant complained to ORG that the Bratislava II ORG and ORG had violated his right under LAW to a hearing within a reasonable time .","On DATE ORG found that ORG had violated the applicant \u2019s right in issue . The case was of a certain complexity in that expert evidence was required . The applicant had not contributed by his conduct to the length of the proceedings . The defendant had failed to appear at CARDINAL hearings , which had resulted in the proceedings being prolonged . ORG had not proceeded with the case in a smooth and efficient manner , as a result of which the applicant \u2019s claim had not yet been determined .","ORG ordered ORG to proceed with the case without further delay and awarded the applicant CARDINAL NORP korunas ( the equivalent of MONEY at that time ) in just satisfaction . It also ordered ORG to reimburse the applicant \u2019s costs ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88571","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"BELLON v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE . On DATE , the applicant made a claim for widows\u2019 benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant appealed . On DATE the decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58115","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1997,"docname":"CASE OF ZANA v. TURKEY","importance":3,"conclusion":"Violation of Art. 6-1;Violation of Art. 6-3-c;No violation of Art. 10;Preliminary objection rejected (ratione temporis);Preliminary objection rejected (estoppel);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"John Freeland","text":["Mr PERSON , a NORP citizen born in DATE , is a former mayor of ORG , where he currently lives .","Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers\u2019 ORG ) . This confrontation has so far , according to the ORG , claimed the lives of CARDINAL civilians and CARDINAL members of the security forces .","At the time of the ORG \u2019s consideration of the case , CARDINAL of the CARDINAL provinces of south - east GPE had since DATE been subjected to emergency rule .","NORP In DATE , while serving several sentences in GPE military prison , the applicant made the following remarks in an interview with journalists :","\u201c I support the ORG national liberation movement ; on the other hand , I am not in favour of massacres . Anyone can make mistakes , and the ORG kill women and children by mistake \u2026 \u201d","\u201c ... PKK'n\u0131n ulusal kurtulu\u015f hareketini destekliyorum . PERSON de\u011filiz , yanl\u0131\u015f \u015feyler her yerde olur . Kad\u0131n ve \u00e7ocuklar\u0131 yanl\u0131\u015fl\u0131kla \u00f6ld\u00fcr\u00fcyorlar \u2026 \u201d","That statement was published in the national DATE newspaper DATE on DATE .","On DATE the \u201c press offences \u201d department of the GPE public prosecutor \u2019s office began a preliminary investigation in respect of the applicant among others , on the ground that he had \u201c defended an act punishable by law as a serious crime \u201d , an offence under LAW of LAW ( see paragraph DATE below ) .","On CARDINAL DATE the GPE public prosecutor \u2019s office ruled that there was no case to answer in respect of the journalists and that it had no jurisdiction ratione loci to deal with Mr PERSON \u2019s case . It sent the file to the ORG public prosecutor .","In an order of CARDINAL DATE the ORG public prosecutor ruled that he had no jurisdiction , on the ground that the offence committed by the applicant was governed by Article CARDINAL \u00a7 \u00a7 CARDINAL\u2013CARDINAL of LAW ( a provision which makes it an offence to disseminate propaganda that is racist or calculated to weaken national sentiment ) . He forwarded the file to the public prosecutor at ORG .","On DATE the latter likewise ruled that he had no jurisdiction , on the ground that when the applicant had made his statement to the journalists he was in custody in a military prison and therefore had military status in law . He forwarded the file to the ORG military prosecutor \u2019s office .","By means of an indictment dated CARDINAL DATE , the ORG military prosecutor \u2019s office instituted proceedings in ORG against Mr PERSON ( among others ) under LAW of LAW . The applicant was charged with supporting the activities of an armed organisation , the ORG , whose aim was to break up GPE \u2019s national territory .","At a hearing before ORG on DATE the applicant argued that the court had no jurisdiction to hear his case and refused to put forward a defence on the merits .","At a hearing on DATE counsel for PERSON asked ORG to rule that it had no jurisdiction as the offence with which his client was charged was not a military one and a military prison could not be regarded as military LOC . The court dismissed that application on DATE .","On DATE the applicant was transferred from ORG military prison to LOC civilian prison .","ORG , acting under powers delegated to it by ORG , summoned the applicant to submit his defence . The applicant , who was on hunger strike , did not appear at the hearing on DATE . He did appear at one held on DATE but refused to address the court , as he considered that it had no jurisdiction to try him .","In a decision of CARDINAL DATE ORG held that it had no jurisdiction in the case and sent the file to ORG .","On DATE Mr PERSON was transferred to the high - security civilian prison at GPE .","At a hearing held on DATE by ORG , acting under powers delegated by ORG , the applicant refused to speak NORP and said in NORP that he wished to defend himself in his mother tongue . ORG pointed out to him that , if he persisted in his refusal to defend himself , he would be deemed to have waived his right to do so . Since Mr PERSON continued to speak in NORP , the court noted in the record of the hearing that he had not put forward a defence .","The proceedings then continued before ORG , where the applicant was represented by his lawyers .","In a judgment of CARDINAL DATE ORG sentenced the applicant to CARDINAL months\u2019 imprisonment for having \u201c defended an act punishable by law as a serious crime \u201d and \u201c endangering public safety \u201d . In accordance with LAW DATE , he would have to serve CARDINAL of the sentence ( DATE and DATE ) in custody and CARDINAL on parole .","ORG held that the ORG qualified as an \u201c armed organisation \u201d under LAW of LAW , that its aim was to bring about the secession of part of GPE \u2019s territory and that it committed acts of violence such as murder , kidnapping and armed robbery . The court also held that PERSON PERSON \u2019s statement to the journalists , the exact terms of which had been established during the judicial investigation , amounted to an offence under LAW of LAW .","The applicant appealed on points of law on DATE . In a judgment of DATE , served on the applicant \u2019s representative on CARDINAL DATE , ORG upheld ORG judgment .","In the meantime , on DATE , Mr PERSON , who had just served the sentences imposed on him earlier , had been released .","On DATE the ORG public prosecutor requested the applicant to report to ORG in order to serve his latest sentence CARDINAL of the prison term , for the remainder of which he would be on parole .","The relevant provisions of LAW at the material time provided :","Article CARDINAL","\u201c It shall be an offence punishable by DATE imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles CARDINAL ...","It shall be an offence punishable by DATE imprisonment to belong to such an organisation . \u201d","Article CARDINAL","\u201c It shall be an offence , punishable by CARDINAL months\u2019 to CARDINAL years\u2019 imprisonment and a \u2018 ORG [ a\u011f\u0131r ] fine of MONEY publicly to praise or defend an act punishable by law as a serious crime or to urge the people to disobey the law .","It shall be an offence , punishable by DATE to CARDINAL years\u2019 imprisonment and by a heavy fine of MONEY , publicly to incite hatred or hostility between the different classes in society , thereby creating discrimination based on membership of a social class , race , religion , sect or region . Where such incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .","... \u201d","Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure at the material time provided :","\u201c A person in custody in a prison situated outside the jurisdiction of the court which is to try him may be examined by other courts . \u201d","On DATE the NORP Minister for ORG deposited with the Secretary General of ORG the following declaration under LAW of the Convention :","\u201c On behalf of ORG and acting in accordance with LAW of ORG , I hereby declare as follows :","The Government of the Republic of Turkey acting in accordance with LAW of ORG , hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of ORG in all matters concerning the interpretation and application of the LAW which relate to the exercise of jurisdiction within the meaning of LAW , performed within the boundaries of the national territory of GPE , and provided further that such matters have previously been examined by the Commission within the power conferred upon it by GPE .","This Declaration is made on condition of reciprocity , including reciprocity of obligations assumed under LAW . It is valid for DATE as from the date of its deposit and extends to matters raised in respect of facts , including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration . \u201d","That declaration was renewed on DATE for DATE and again on DATE , in slightly different terms , for DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23337","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2003,"docname":"WENDENBURG AND OTHERS v. GERMANY","importance":1,"conclusion":"Inadmissible","judges":"Ireneu Cabral Barreto","text":["The applicants , Mr PERSON and CARDINAL others , are NORP nationals . Their names and personal details are listed in the FAC at the end of this decision . They are represented before the ORG by PERSON PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by Mr PERSON , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants enjoyed exclusive rights of audience ( PERSON ) in NORP courts of appeal pursuant to section CARDINAL of LAW ( Bundesrechtsanwaltsordnung ) of DATE .","Under LAW , no barrister with exclusive rights of audience in a court of appeal was entitled to such a right in any other court . This meant that in civil matters , they could not appear before the lower courts , while lawyers with exclusive rights of audience in the lower courts could not appear in the courts of appeal .","Section CARDINAL was held unconstitutional by a decision of ORG of DATE .","The applicants , most of whom have families and children to support , had previously worked on CARDINAL appeals per year , which brought in PERCENT or more of their DATE income and covered PERCENT of their office expenses .","In its decision of DATE , ORG , following a complaint lodged by a lawyer with an exclusive right of audience in the lower courts , reached the following conclusions :","\u201c CARDINAL . Section CARDINAL of LAW is incompatible with LAW . The provision is valid in respect of existing rights of audience until DATE . As from DATE , barristers enjoying a right of audience in the courts of appeal may , on application , at the same time acquire rights of audience in district and regional Courts with jurisdiction in the place in which their practice is located .","In so far as it is confined to the LOC mentioned therein , LAW of LAW shall cease to apply on DATE .","NORP The remainder of the constitutional complaint is rejected .","GPE shall pay the applicant \u2019s costs .","Grounds :","A.","The applicant , a barrister and notary who has practised in GPE , where he has his chambers , for DATE , directs his constitutional complaint against the fact that , under LAW of LAW , he does not also have a right of audience in ORG since the provision concerning exceptions contained in section CARDINAL does not apply to GPE .","I.","Most recently amended by the law entailing the application of the ORG Directive in the field of the law governing the exercise of the profession of barrister of DATE ... , LAW ... of DATE ... in its second chapter sets out in its second schedule a comprehensive regulation of ORG admission to bars affiliated to courts . Every barrister must be admitted to a bar affiliated to a specific court of ordinary jurisdiction and is required to establish his practice within the area to which such authorisation extends ( ORG . CARDINAL , CARDINAL of LAW ) . Any barrister admitted to a court of appeal bar may not combine such right with a similar admission to any other court bar ( ... LAW ) . In contrast , any barrister admitted to a district court bar may , on request , be admitted to the regional court bar in whose area the said district court has its seat ( LAW ) . In addition , LAW of LAW in the text of LAW DATE ( ... hereinafter referred to as ORG ) on ORG for the exercise of the profession of barrister and patent lawyer opens up the possibility of lawyers becoming admitted to both regional court bars and court of appeal bars ( combined rights of audience ) , albeit not in GPE , GPE , ORG , GPE , GPE , PERSON and GPE . The relevant provisions of LAW read as follows :","\u2018 LAW","Exclusive nature of admissions restricted to the court of appeal bar","No barrister admitted to the court of appeal bar shall be entitled to admission to the bar of any other court .","Section CARDINAL","Concurrent admissions to a district court bar and a court of appeal bar","( CARDINAL ) ...","( CARDINAL ) ORG admitted to a regional court bar in the L\u00e4nder of Baden - W\u00fcrttemberg , GPE , GPE , GPE , GPE , GPE , GPE , ORG and GPE may , on request , at the same time be admitted to a court of appeal bar if they have previously been admitted to a court of first instance bar for DATE","Barristers with rights of audience in the courts of ordinary jurisdiction were originally restricted when participating in proceedings to appearing before the court to whose bar they had been admitted . Since DATE , section CARDINAL of the Code of Civil Procedure has extended rights of audience to all proceedings before the district and regional courts . As previously , only duly accredited barristers may be admitted to the bars of the higher courts ...","Barristers may appear before the Labour- , Finance- , ORG , as well as - in criminal matters - before the courts of ordinary jurisdiction in all proceedings and at all levels of jurisdiction regardless of their court of registration .","LAW of DATE aimed to restore the legal unity of the law governing the exercise of the profession of barristers ... After the Second World War , differing regulations had emerged in the occupation zones and subsequently in the L\u00e4nder . In a number of courts of appeal , by way of deviation from the principle of exclusive rights of audience , there had already been an optional combined right of audience in the regional court and the court of appeal , this being the case in GPE , GPE , GPE , GPE , GPE and GPE . This practice was later introduced in GPE , GPE and ORG . Subsequently , the question as to whether exclusive rights of audience should be preserved or give way entirely or at least in certain fields to combined rights of audience exercised the minds of the NORP GPE and its committees as well as those of ORG over CARDINAL legislatures ... Finally LAW , which entered into force on DATE , provided for an ongoing combined right of audience to the courts of appeal only for barristers admitted to the bars of the GPE , GPE and ORG , subject , however , in each case to a waiting period of DATE . Furthermore , this right was extended to barristers who already enjoyed combined rights of audience . In GPE consideration was given to a combined right of audience for a transitional period .","DATE , GPE ( cf . LAW of the LAW and the Law on Patent Lawyers of DATE ... ) , followed a further DATE by PERSON and GPE ( cf . LAW on LAW and ORG and Fees for Barristers and other prescriptions of DATE ... ) , was included in the circle of ORG in which lawyers enjoyed combined rights of audience . In GPE no sufficiently strong body of barristers had managed to develop within ORG . When the occasion arose , barristers attached to the regional courts would have themselves sponsored by a colleague admitted to the local court of appeal bar in order to be able to appear before that court themselves ( cf . Record of the CARDINALth Session of ORG of ORG PERSON , p. CARDINAL with further reference ; cf . Summary Record of the CARDINALth Session of ORG of the CARDINALth NORP GPE of DATE , p. CARDINAL and ORG of said ORG , ... ) . In GPE and GPE , the co - existence of exclusive and combined rights of audience had led to distortions in competition . The experience of barristers with combined rights of audience was considered positive ( ... cf .. also ORG of the CARDINALth GPE of DATE , p. CARDINAL , CARDINAL et seq . ) .","Barristers in the new ORG who were entitled to appear before the ORG courts continued to enjoy rights of audience in all courts , even after LAW of DATE ... ; LAW , PERSON , LAW , Subject Matter A , Paragraph III , No . CARDINAL ... ) . Under the PERSON on the Adaptation of the Administration of Justice in GPE DATE ... , it was left to the new ORG to choose which of the CARDINAL systems of rights of audience - exclusive or unrestricted - they preferred . The Federal legislature had no wish to give pride of place to CARDINAL or the other ... ORG and GPE opted in favour of the system of unrestricted rights of audience , whereas GPE and GPE - West Pomerania preferred exclusive rights of audience . Before the relevant ORG law had taken effect in practice , the law of DATE on the reorganisation of the exercise of the profession of barrister and patent lawyer , contrary to a planned nation - wide freedom of choice for ORG to decide themselves as to the form of admission ... , left LAW of LAW untouched and only the new L\u00e4nder which had opted for unrestricted rights of audience were included under LAW , subset . CARDINAL of LAW .","II .","The applicant applied in DATE to the President of ORG for an unrestricted right of audience to that court after having practised as a barrister for DATE . His appeal to ORG against the decision to reject his application proved unsuccessful . Like ORG , ORG , in its decision of DATE upholding the latter \u2019s view , found that the legislature had not written into LAW of LAW impugned by the applicant any disproportionately restrictive interference in his freedom to exercise his profession . The LAW on the Exercise of the Profession ( GPE ) were in conformity with the LAW ... . The system of exclusive rights of audience served the common good in so far as , after the decision of first instance , the subject matter of the proceedings when laid before a fresh barrister should be examined and judged by him uninfluenced by what had gone on before ( principle of CARDINAL pairs of eyes ) . Despite the exceptions in LAW subsection CARDINAL of LAW , the law did not breach LAW of LAW either . To the extent that exceptions apply also to a part of the new L\u00e4nder , this is constitutionally acceptable having regard to their weight as grounds conducive to the accession of the new L\u00e4nder .","III .","In his constitutional complaint the applicant contests the breach of LAW and LAW as a result of the adverse decisions of the President of ORG , ORG and ORG , together with sections CARDINAL and CARDINAL of LAW . Hitherto deemed to be in conformity with the LAW , the rules , so it is argued , have been superseded by amendments to the law on the exercise of the profession of barrister and by the evolution that has taken place in the practical relations between practitioners . They are said to lead to distortions in competition that are not only a bar to equality but also incompatible with the freedom of choice and the freedom of exercise of the profession .","It was claimed that there was a restriction on the freedom to exercise one \u2019s profession affecting the very choice of a profession . The applicant contended that he could be admitted to ORG by abandoning his solicitor \u2019s practice in GPE . The principle of the CARDINAL pairs of eyes was not so much in the general interest as to justify the interference . Its observance was exclusively a matter of the internal organisation of a law practice . Even in ORG with the system of exclusive rights of audience it has broadly lost its validity . This was said to be the consequence of the introduction authorised in the meantime of mixed practices encompassing CARDINAL or more localities in which barristers specialised and could also appear in respect of appeals before the courts of appeal . Given the great number of barristers admitted to the regional courts , those with exclusive rights of audience would always be able to find a partner . Should the legislature allow barristers with exclusive rights of audience to gain access to all the regional courts situated in the district of the court of appeal through partnerships with colleagues practising in cases of the first instance before the regional courts , it would then have to enable barristers admitted to the regional court bars to gain access to the courts of appeal . For the specialisation of barristers , what was decisive was the size of the practice and not whether they enjoyed exclusive rights of audience . Given the considerable disadvantages for barristers not admitted to the court of appeal bar , the interference was however disproportionate . A barrister not able to appear before the court of appeal seemed to be less qualified than his colleague ; this in itself was a competitive disadvantage . The effect of this was particularly felt along the frontiers between ORG with different systems . For example , barristers from GPE or GPE with unrestricted rights of audience were fully successful in the surrounding area where the system of exclusive rights of audience was in force .","Unequal treatment within GPE was also said to run counter to LAW . To that extent a more stringent measure should be included in the law of the LAW , since the diversity of legal situations affected LAW . The legislature had no overriding reasons for this unequal treatment ; in DATE , he had rather merely accepted it because no majority had emerged in favour of any alternative rule . The legislature was unable to take purchase on the principle of CARDINAL - pairs - of - eyes because , had it carried weight , it could not have been confined to individual regions . Regional peculiarities could no longer be invoked as a justification . Such peculiarities might have existed in the historical development of ORG and the southern L\u00e4nder ; however , they were totally absent in the new L\u00e4nder . Moreover , DATE , when the unrestricted rights of audience in courts was reintroduced in the LOC and GPE , the legislature had considered the system of unrestricted rights of audience as objectively better attuned to legal policy and the requirements of competition .","IV .","ORG on behalf of ORG , ORG , the President of ORG , ORG , ORG and ORG with exclusive rights of audience in ORG took a stand on the matter and added further detailed comment at the hearing .","They conclude and largely concur that the impugned decisions and the norm on which they are based are compatible with LAW .","In a Land the legislature is entitled to take account of regional particularities resulting from the historical development of the LOC and from the special situation of rebuilding an effective legal system in the LOC .","The principle of CARDINAL pairs of eyes was necessary for the administration of justice , as could be confirmed by statistics . In civil actions , the principle of the production of evidence applied . A change of barrister protected parties against possible failure to discover opportunities for an effective defence . The compulsory change in barrister provided a possibility of a further examination of the case and an improvement in its factual basis . Not having been involved in the trial proceedings , the new barrister was not under pressure to win the case or to justify himself . The system of exclusive rights of audience , so it is argued , facilitates specialisation by barristers in procedural law and substantive law , thus being conducive to a more thorough examination of the case . This specialisation , it is claimed , matches that of ORG . Section CARDINALa of LAW can not be read as being in favour of abandoning the principle of CARDINAL pairs of eyes . Mixed practices of barristers with differing rights of audience had always been available . Despite the increase in the number of these so - called mixed practices , the principle of exclusive rights of audience had not been abandoned in practice . In court districts with the system of exclusive rights of audience , changeover of barristers handling cases continues to take place . Such a practice can not be achieved in areas with unrestricted rights of audience ; there is especially no way of ensuring that the appeal lawyer is equally familiar with the case - law of the appeal court . The bench also values the improved quality resulting from the \u2018 principle of CARDINAL pairs of eyes\u2019 .","Should the system of exclusive rights of audience be abandoned , constitutional reasons would require a transitional solution . Barristers , it is claimed , would have been encouraged by the decision of ORG DATE ... to expect the right to continue to remain valid . This discontinuation of the system of exclusive rights of audience would not allow the survival of the specialisations of barristers vested with such rights . This would have resulted in a devaluation of their legal practice , for the colleagues dealing with cases in the first instance would as a rule no longer pass on to them the representation of clients in proceedings before the court of appeal . A transitional solution would first and foremost have to take account of the fact that the great majority of barristers enjoying exclusive rights of audience did not possess a source of clients of their own among persons seeking justice . Their continued existence would depend on the development of a practice dealing with cases of first instance and general legal advice . Therefore , only a transitional arrangement laying down a deadline on the prohibition of exclusive unrestricted rights of audience","ORG unilaterally in favour of barristers hitherto enjoying exclusive rights of audience in the court of appeal and allowing only them to appear before regional courts and courts of appeal would seem suitable . A CARDINAL-year period would be appropriate .","B.","The constitutional complaint is in essence well - founded .","The system of exclusive rights of audience as laid down in LAW of LAW is not compatible with LAW . There is thus no need for an examination on the basis of LAW of LAW . The constitutional complaint is to be rejected , in so far as it is directed against the impugned decisions , as the hitherto applicable right continues to be available to the applicant .","I.","The impugned decisions and their underlying regulations limit the applicant \u2019s exercise of his profession . A sector of professional activity is closed to him , whereas it is generally open to barristers in other ORG , while in GPE , for example , it is reserved for barristers admitted to ORG . ... At the same time , other barristers who - like the applicant - are not admitted to ORG are excluded from forensic activity in ORG in proceedings where the presence of a barrister is mandatory .","Such legislative regulations over the exercise of a profession have been held by ORG constant case - law to be admissible when they are justified on cogent grounds as being in the general interest , when the chosen means is in accord with the aim sought and when an overall weighing of the degree of the interference and the grounds serving to justify it do not exceed the limit of what is reasonable ... . The more the practitioner suffers hindrance in the exercise of a profession , all the greater has to be the weight of the general interest that the arrangement is designed to serve ... . The impugned decision does not suffice to meet these constitutional requirements .","The institution of exclusive rights of audience was originally based on a variety of concerns for the general interest . These included the legal tradition and the existence of a counterpart to the institution in civil - law procedures ... , and the advantages for the administration of justice resulting from an easier access to qualified barristers and from the furtherance of a climate of mutual trust between the ORG and the barristers established in its area of jurisdiction ... . The legislature also relied on the last of these grounds to justify LAW , previous version , during the period when it was in force . The right of practice restricted to cases of the first instance was designed to expedite proceedings before ORG , to further trust - based co - operation between GPE and Bar and to enhance the quality of advice given by barristers thanks to a knowledge of the local habits and traditions . However , in the process of reforming the regulation of the profession of barrister , the legislature itself did not hold this aim to be defensible as a justifiable means of imposing restrictions on the right of audience to the regional court bars ... .","( a ) Technological progress has prompted the legislature to cease to attach great weight to the disadvantages that might arise for the ORG as a result of the acceptance by barristers of cases from outside areas . Increased mobility brought about by improved means of transport and the emergence of modern means of communication ( such as portable telephones , facsimile , laptops ) , together with the ability to transmit large quantities of documents to law practices and increasingly to the ORG , offers a reliable mode for contacting a barrister provided he continues to be required to have his practice in the district where he is registered . In all other jurisdictions , the fixing of dates of hearings has long been successfully achieved without recourse to locally based barristers and this is now also the case in civil matters with district and regional courts . The courts of appeal show no special features that could stand in the way of the general interest . The frequency of travel to outside hearings will depend on how much importance the client or the barrister attaches to attendance in person , the responsibility assumed by the barrister in the specific case and his ability to adjust various hearing dates to one another ... . Dates for hearings before the courts of appeal can also be fixed effectively and swiftly with barristers with unrestricted rights of audience .","( b ) In civil matters before district and regional courts , the legislature has also abandoned the aim of a trust - based personal contact between barrister and judge as a requirement for the administration of justice ... . It is not clear that the viewpoint was a decisive reason in upholding exclusive rights of audience in the courts of appeal .","( c ) Neither can the specialisation of barristers pleading before them be relied on to justify the system of exclusive rights of audience in the courts of appeal as being a matter of public interest . This applies to both specialisation in individual fields ( bb ) and a thorough acquaintance with the case - law of a particular court ( aa ) . The weight attaching to matters referred to as being in the general interest has diminished so much in this area that they can no longer serve to justify the exclusive rights of audience in the courts of appeal . These general - interest arguments were based on circumstances and conditions that no longer exist . Moreover , the legislature has made it clear through the revised rules of procedure and organisation of the profession of barrister that these approaches no longer carry any weight .","( aa ) True , a knowledge of the case - law of a given court and features peculiar to a locality may be of advantage to the client . However , such knowledge does not come into play at the appeal stage first of all , but is made much use of at the court of first instance , since it may provide a means of avoiding recourse to appeal . In any case , such circumstances were more relevant in matters dealt with by the administrative courts of the second instance which would usually reach a final decision based on the law of the Land than they were in matters falling under the jurisdiction of the civil courts . However , rights of audience in administrative appeal procedures was never restricted to a small circle of barristers possessing such a right .","( bb ) In the meantime , the specialisation of barristers outside the area where they enjoy exclusive unrestricted rights of audience has become much more widespread with the support of the legislature ( cf . Sets . CARDINAL a , CARDINAL b subset . CARDINAL Nr . CARDINAL and Section CARDINALc of LAW ) .","In so far as a specialised corpus of barristers had already developed at an early stage , this was not the result of exclusive rights of audience . First of all , specialisation in matters dealt with by the courts of appeal requires a corresponding distribution of labour in the court of appeal concerned , which was only the case of the larger courts of appeal . The views uttered by the President of ORG do not apply uniformly to places such as GPE , GPE , GPE or GPE . Specialisation as a rule requires above all that barristers be able to work in large practices where the work is divided among them , thus enabling them to specialise . As a result of changes in the laws governing the ORG profession such large practices have grown up on a broad scale , as was to be foreseen when LAW came into force in DATE . Barristers joined forces in various structures and worked across the borders of the local area of jurisdiction and those between ORG in practices comprising barristers enjoying either of the CARDINAL types of rights of audience and members of other professional groups . This development clearly shows that the services of barristers specialised in various areas of the law were already in great demand at the stage of preliminary advice and first instance and not only as the result of their enjoying exclusive rights of audience in ORG .","NORP The only common - interest arguments that the legislature continued to view as relevant were the improved quality of legal advice and the ability to reach an independent assessment of the prospects of the success of an appeal thanks to the principle of CARDINAL pairs of eyes . However , this principle and the expectations to which it gives rise do not suffice to justify the interference in barristers\u2019 professional freedom .","( a ) It is already unclear whether the legislature continues to look upon the system of exclusive rights of audience as an appropriate and necessary means of improving the administration of justice .","( aa ) Granted , there are many pointers to the effect that , against the background of the sources of information then available , the legislature of DATE saw in exclusive rights of audience a particularly suitable means of securing an administration of justice of high quality on the basis of the principle of CARDINAL pairs of eyes .","The principle of exclusive rights of audience was the practice in the great majority of appeal - court districts and was such as to give the legislature the impression that , in conjunction with the strong local concentration of the capacity to conduct first - instance proceedings as per section CARDINAL of LAW , it represented a principle of proven practical value . Decisions of appeal courts were published less frequently , so that the case - law of these courts may have increasingly tended to develop in different directions . In addition , practices were small and were not allowed to operate in CARDINAL locality . Barristers were more dispersed and far less specialised . There were practically no specialist lawyers and no reported emergence of pools of special skills . Experience of Labour- , Financial - , ORG jurisdictions where restrictions on rights of audience had been waived from the outset was seldom to be found .","( bb ) However , it is to be doubted whether the DATE legislature continued to abide by his assessment having regard to changes in real - life situations .","Already in DATE the rapid and readily accepted spreading of the system of unrestricted rights of audience in GPE and GPE showed that the legislature did not consider that the experience so far acquired endangered the administration of justice if an amendment to the law offered a means of ending competitive pressures among barristers . However , it would appear from the legislative history prior to the authorisation of mixed practices in DATE that there were doubts as to the suitability of exclusive rights of audience as a means of achieving the desired aims .","When preparing LAW in DATE the legislature still considered a ban on such practices as an additional measure indispensable for the preservation of the principle of CARDINAL pairs of eyes ( cf . In extenso Report of the CARDINALth Session of the Legal Affairs Committee of the CARDINALrd NORP GPE of DATE , p. CARDINAL et seq . Such a ban could not be executed at this stage ( cf . In extenso Report of the CARDINALrd Session of ORG of the CARDINALrd NORP GPE of DATE , p. CARDINAL et seq . ; Report of the Plenary Session of the NORP GPE of DATE , ORG , CARDINALnd Session , p. CARDINAL ; Report of the Plenary Session of the NORP GPE of DATE , CARDINALrd ORG , CARDINALth Session , p. CARDINAL ) ; however , practices operating in CARDINAL locality were not viewed as admissible ... . A relevant connection between the forms of law firms , the restricted capacity to conduct proceedings before the courts of first instance and the exclusive right of audience to the appeals courts also featured prominently in the Report of ORG of DATE ( cf . p. CARDINAL of the Report ) .","It was only in DATE that the legislature reacted with section CARDINAL of LAW to the changes that had in fact taken place and to the case - law of ORG that had moved in a similar direction . At the same time , it abandoned linkage of the capacity to conduct proceedings and the nation - wide professional localisation for civil proceedings before ORG ( Section CARDINAL of LAW in the wording of LAW , Nr . CARDINAL ORG ) . Last but not least , doubt was occasionally expressed in the debates about the amendment as to whether the principle of CARDINAL pairs of eyes required the existence of a system based on exclusive rights of audience ( cf . ... the Report of the CARDINALth Session of ORG of the CARDINALth NORP GPE of DATE , p. CARDINAL about talks at ORG ) .","( cc ) Further , In LAW on the amendment of the LAW of DATE on greater flexibility of the practical exercise of their services by barristers of CARDINAL DATE ( ... hereinafter referred to as the ... ) , the legislature found another means of compulsorily adhering to the principle of CARDINAL pairs of eyes without the need for exclusive rights of audience ... . According to the third sentence of LAW of the LAW on the Exercise of ORG , barristers from member ORG are entitled to appear before the civil chambers of appeal courts even without exclusive rights of audience according to section CARDINAL of LAW , provided however that it has been ascertained that such barristers have not acted as full legal representatives in the initial proceedings .","Already in DATE , the legislature had thus demonstrated that there was an alternative and less demanding way of ensuring the free exercise of the profession and of implementing the principle of CARDINAL pairs of eyes , merely by prescribing a changeover in staff from CARDINAL instance to the other . This solution , which was favourable to barristers from ORG member GPE , failed to obtain majority support from barristers authorised to practise in GPE during the debates on the amendment of sections . CARDINAL and CARDINAL of LAW ( cf . Verbatim Record of the CARDINALth Session of ORG of the CARDINALth NORP GPE of DATE , p. CARDINAL ; the matter was not taken up again later ) , although the system of exclusive rights of audience is less conducive to the observance of the principle of CARDINAL pairs of eyes . Thereafter , the legislature , contrary to what was laid down in LAW on the Exercise of ORG ( henceforth section CARDINAL of the PERSON on ORG in GPE ) , has ceased to consider the changeover of staff as indispensable .","( dd ) It Is consequently to be noted that , overall since DATE , the legislature has increasingly and clearly distanced himself from \u2018 its initial assessment that the system of exclusive rights of audience was on the whole more necessary for the administration of justice than unrestricted rights of audience .","The basis for this clearly lay in the recognition that grew up in a number of ORG and in other branches of the judiciary of the capacity of the administration of justice to function on the basis of a system of unrestricted rights of audience , as well as in advantages that accrued to the administration of justice , especially from the clients\u2019 standpoint . Foremost among these advantages was the special relationship of trust between barrister and client underpinned not only by the knowledge of the case - file in a specific case , but also by long - standing advice and successful co - operation concerning all the legal business involving the client . For a client who has won his case in the first instance , a mandatory change of barrister can be disturbing . Although the consequences of such a change may be offset to some extent by bringing into the appeal proceedings the barrister already fully conversant with the case when tried in the first instance , additional costs would be entailed .","Hence the marked reticence shown by the legislature in the DATE ORG and its failure to decide itself whether the administration of justice would be better served by a system of exclusive rights of audience or a system of unrestricted rights of audience ... . The idea was first of all to offer the new L\u00e4nder an opportunity of deciding according to their own preferences . A corresponding freedom of choice was then thrown open to all the L\u00e4nder in the initial draft reform of DATE ... . This was to make clear the fact that , under Federal legislation , neither unrestricted nor exclusive rights of audience were to enjoy precedence before ORG . ORG of the NORP GPE rallied to this view of the law at its hearing of DATE ... .","( b ) These doubts in the legislature \u2019s mind as to the suitability and the necessity of the system of exclusive rights of audience as a means of improving the quality of the administration of justice were strengthened by the body of experience acquired in GPE . According to LAW of LAW , exclusive rights of audience are no longer required for the achievement of the desired aims and are in breach of LAW .","Neither have any drawbacks emerged in the administration of justice when , further to the introduction of unrestricted rights of audience , the client has himself decided whether he wishes a change of barrister for the appeal proceedings and himself determines what he deems to be the relevant criteria , such as geographical proximity , specialisation and size of the law firm , familiarity with the case - law of the competent chamber of the court or perhaps merely dissatisfaction with his previous legal representative .","The principle is clearly not a requirement for the formation of a body of specialised barristers which the association of barristers enjoying exclusive rights of audience , together with the President of ORG , consider to be in the common interest . There are barristers specialising in GPE Financial - , ORG law and who appear before all levels of jurisdiction in those sectors . Specialist barristers also work on an appreciable scale in practices which associates with rights of audience in appeal courts are allowed to join . It is thus irrelevant whether the rights of audience in the particular sector are exclusive or unrestricted . In certain appeal courts barristers enjoying exclusive rights of audience belong without exception to mixed practices with some members specialising in specific areas in which they are particularly qualified . In addition , in the new ORG with the system of exclusive rights of audience , no law firms dealing exclusively in ORG appeal court proceedings have so far been formed . No need for barristers specialising in appeal matters has been felt , as was already clearly the case at an early stage in LOC and other places with unrestricted rights of audience .","Significant advantages that might flow from the system of exclusive rights of audience are not to be seen . True , the figures that have been presented do reveal deviations in the frequency and the success of appeals as well as fluctuations over DATE and in results as between individual ORG . However , since the performance of barristers is expressed in terms of numbers and results of judgments , no clear view of the pros and cons of either system can be obtained . Judgments handed down by independent courts can hardly be attributed to the preparatory work by barristers appearing before appeal courts or to the applicable right of audience .","True , judges have always favoured the system of exclusive rights of audience since it facilitates their task . On the other hand , clients gain a greater freedom of choice when barristers enjoy unrestricted rights of audience . Evidence that they often have no wish to change barristers is to be seen in a long - standing avoidance of the rule restricting admission to a single bar . Restrictions on the exercise of the profession must take account of the fact that above all else barristers have a duty to their clients as an independent adviser and representative ... . Restrictions on the free exercise of their activity by barristers can not be required solely on the ground that they are looked upon as objectively useful by the appeal courts and judges in the districts where the system of exclusive rights of audience holds sway .","If , over the course of DATE , the legislature restricts the freedom to exercise the profession only in a part of GPE without this entailing either greater drawbacks where greater freedom prevails or significant advantages where that freedom is more restricted , then it is clear that the restrictions were not needed .","II .","Although section CARDINAL of LAW is not in tune with LAW of LAW , the prescription is to continue to abide by the measures clearly arising out of the operative part until DATE . The barristers concerned in the ORG that are not identified in LAW need a certain period of adjustment .","The time - scale first of all serves to help barristers appearing before appeal courts on the basis of the system of exclusive rights of audience to prepare to obtain admission to the relevant district and regional courts and to establish contacts with fellow - professionals . Many of them will also need to consider the matter of the siting of their practices for all or some of their partners . Planning and implementation will require appreciable time . For barristers who have been involved in first - instance proceedings for DATE ( Section CARDINAL , Nr . CARDINAL of LAW ) the question arises of their concurrent admission to the appeal - court bar . Clients with their roots in a local community situated in the larger L\u00e4nder will be able to use the period of transition in order to decide whether they wish to consider one or other of the barristers who have served them before the courts of first and second instance as possible permanent legal representatives for the future .","Since it was argued in the proceedings that barristers enjoying exclusive rights of audience in appeals courts have so far been kept at full stretch by their forensic activity , it would then seem questionable to allow them throughout the transitional phase to take on the additional work resulting from their rights of audience to the courts of first instance with the shift of the centre of gravity of their activity this would entail , notwithstanding that the unconstitutional nature of the norms bar any new granting of exclusive rights of audience . The better barristers so far appearing exclusively before courts of second instance succeed in their reorientation , the more energy they will have to devote to first - instance cases and to advising new clients , so that cases still to be pleaded by them before the appeal courts could no longer continue to receive the same degree of care as hitherto . Since , however , it should not be overlooked that the reorientation will entail greater difficulties for second - instance barristers than for those who have so far acted exclusively at first - instance level , it is proper to stagger the opening of the system of unrestricted rights of audience . Barristers who have so far enjoyed exclusive rights of audience in the appeal courts can have additional rights of audience in courts of first instance as from DATE , whereas barristers who have so far appeared exclusively at first instance will be able to be accredited to the appeal courts at the earliest on DATE .","III .","As a consequence of the transitional regulations , the applicant will also have to wait until DATE in order to achieve his aim . The constitutional complaint is thus rejected in so far as it is directed against the decisions of ORG , ORG and ruling of the President of ORG . These decisions remain valid for the past . The applicant will have to lodge a fresh application .","IV .","Inasmuch as the constitutional complaint succeeded as regards the norm underpinning the decisions , it appears appropriate to award the applicant the necessary costs ( Section CARDINAL a , subsections CARDINAL and CARDINAL of ORG ) . \u201d","The system of exclusive rights of audience at courts of appeal applied in CARDINAL of the CARDINAL L\u00e4nder .","Statistical material on lawyers with such a restricted right of audience is available for ORG ( for DATE ) and for GPE , GPE , GPE - West Pomerania , GPE , GPE - Palatinate and GPE ( DATE ) :","In GPE , CARDINAL lawyers had restricted rights of audience at ORG ; PERCENT ) of them worked on their own or with other lawyers specialised in appeals matters and CARDINAL worked in mixed partnerships . All lawyers with restricted rights of audience at ORG and ORG worked in mixed partnerships .","In GPE , CARDINAL lawyers had restricted rights of audience at courts of appeal , PERCENT ) worked in regional partnerships , CARDINAL ( PERCENT ) in mixed partnerships and CARDINAL lawyers ( PERCENT ) worked on their own .","In GPE , all lawyers with a restricted right of audience at FAC worked in mixed partnerships . Of the CARDINAL lawyers with a restricted right of audience at ORG , CARDINAL worked in mixed partnerships and CARDINAL in an individual practice .","In GPE - West Pomerania , CARDINAL of the CARDINAL lawyers with restricted rights of audience at ORG did not work in mixed partnerships .","In GPE , CARDINAL lawyers had restricted rights of audience at ORG . CARDINAL of them worked as single lawyers or in practices with other appeals lawyers . The majority were titular or syndicate lawyers not forensically active , or had merged with mixed partnerships . Most of the lawyers with restricted rights of audience at ORG worked in mixed partnerships . No update information was available for the situation with regard to lawyers with restricted rights of audience at ORG .","In GPE - Palatinate , CARDINAL lawyers had restricted rights of audience at ORG and ORG . CARDINAL worked in practices with other lawyers specialised in appeals matters , while CARDINAL worked in mixed partnerships .","In GPE , CARDINAL of the CARDINAL lawyers with restricted rights of audience at ORG worked in mixed partnerships .","With regard to ORG where a combined right of audience already applied in the past , no statistical information on the number of lawyers specialised in appeals matters is available .","Proceedings before ORG","According to LAW ( CARDINAL ) of LAW , ORG rules on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed CARDINAL of his or her fundamental rights or CARDINAL of his or her rights as guaranteed under LAW ( CARDINAL ) , CARDINAL , DATE , CARDINAL , CARDINAL and ORG of LAW .","The composition and functioning of ORG are governed by LAW . Sections CARDINAL of that Act concern constitutional complaints lodged by individuals .","According to section CARDINAL ( CARDINAL ) , any person who claims that CARDINAL of his basic rights or CARDINAL of his rights under LAW , Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG . These rights include rights regarding the fairness of proceedings and the rule of law , and the right to freedom of profession , i. e. the right to exercise the profession of your choice .","Ensuing legislation concerning the legal representation before courts of appeal","On DATE , the legislature changed the law governing the legal representation before courts of appeal ( ORG zur ORG des Rechts der Vertretung durch LOC dem Oberlandesgericht ) , namely LAW of ORG . While before , lawyers admitted to the bar of a certain court of appeal could only plead before that court of appeal , they may now plead before any NORP court of appeal , regardless of which bar they are admitted to ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90198","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2008,"docname":"CASE OF MANOLOV AND RACHEVA-MANOLOVA v. BULGARIA","importance":3,"conclusion":"Remainder inadmissible;Violation of P1-1;Pecuniary damage -award;Non-pecuniary damage - award","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych","text":["The applicants are husband and wife . They were born in DATE and DATE respectively and live in GPE .","NORP In DATE the first applicant , who was an artist , purchased from the ORG through ORG a workshop of QUANTITY in GPE . It appears that the second applicant , being the first applicant \u2019s spouse , acquired a share in the property . The price , CARDINAL \u201c old \u201d NORP levs ( ORG ) , was determined in accordance with the relevant legislation and paid by the first applicant . At the relevant time this sum was the equivalent of not CARDINAL average DATE salaries .","In DATE the applicants made substantial alterations to the property . The applicants used the property as a workshop and as their home .","The property , located in a building constructed not DATE , had originally consisted of CARDINAL separate LOC which had become ORG property in DATE and DATE , when a Mr A. and PERSON , the owners , had each sold their LOC to the ORG , through ORG . The transaction had been executed pursuant to ORG no . CARDINAL of DATE , at prices determined by the relevant regulations ( see paragraph CARDINAL below ) .","In DATE the heirs of PERSON and PERSON reimbursed the price their families had received in DATE and DATE respectively and , claiming that they had thereby restored their title to the respective parts of the property by virtue of ORG DATE ( \u201c the DATE LAW ) , filed a rei vindicatio action against the applicants .","The proceedings went through CARDINAL levels of jurisdiction and ended with a final judgment of ORG DATE ordering the applicants to vacate the property .","The courts noted that in accordance with the DATE Act the former owners of real estate sold to the State under Decree no . DATE could automatically restore their title by reimbursing the price they had received from the ORG . The restored owners were entitled to claim their property from any third person , even where the latter had acquired it by means of a valid transaction . The courts found that in the case at hand the plaintiffs had reimbursed the price their families had received in DATE and DATE and had restored their title . Under the DATE Act the applicants were no longer the owners and had to vacate the LOC . The fact that they had purchased the property in DATE by means of a valid transaction was immaterial .","The relevant court judgments in the DATE proceedings , as well as the ORG notary deed , described the property as covering QUANTITY on CARDINAL levels : ( i ) basement , used as a workshop ( QUANTITY ) , ( ii ) art gallery ( QUANTITY ) and ( iii ) upper level ( QUANTITY ) .","On DATE the applicants were evicted from the property . They moved into a room of QUANTITY belonging to a friend of theirs , where they lived until DATE .","The applicants asked the GPE municipality to provide them with a municipal flat for rent . The municipality agreed but proposed to the applicants , in DATE , a squatted flat and later on a flat located below ground level , which the applicants refused as being unsuitable for occupation . Eventually , in DATE the applicants were granted the tenancy of a CARDINAL - room municipal flat at regulated prices .","On an unspecified date in DATE the applicants brought an action under section CARDINAL \u00a7 CARDINAL of the CARDINAL Act , seeking compensation for improvements in the property from the heirs of PERSON and PERSON By a judgment of DATE ORG awarded the applicants MONEY ( ORG ) ( the equivalent of approximately ORG CARDINAL ) apparently on the basis of up - to - date market prices .","On DATE this judgment was quashed by ORG which referred the case for renewed examination indicating that the compensation should be in the amount of the expenses disbursed by the applicants for the reconstruction of their property , calculated with reference to prices as in force at the relevant time \u2013 the CARDINALs .","Thereafter the applicants abandoned the proceedings as it became clear that as a result of the devaluation of the NORP currency , inflation and the NORP courts\u2019 practice of refusing revalorisation they could only hope to obtain a token compensation . The proceedings were terminated on an unspecified date in DATE .","By virtue of Council of Ministers Decree no . CARDINAL of DATE , the ORG or municipal enterprises were authorised to \u201c buy up \u201d , from the individuals who owned them , stores , workshops , storage houses or similar LOC . The price was fixed by administrative decision on the basis of legislation . While the Decree provided that the owner should propose that his or her property be purchased , in reality the owners were pressured to sell their property under ORG policy of limiting private economic activity ( see ORG judgment no . CARDINAL of DATE in case no . CARDINAL\/CARDINAL , noting , obiter , that the individuals concerned had been forced to sell their shop ) . This policy had been implemented , among other means , via the Citizens\u2019 Property Act DATE , which limited to a minimum private ownership of LOC for economic activity .","NORP In DATE ORG adopted ORG DATE , which provided that the former owners of real property sold to ORG no . DATE could restore their title automatically by reimbursing the price they had received within DATE of the Act \u2019s entry into force ( section QUANTITY ) . The restored owners were entitled to claim their property from any third person , even where the latter had acquired it by means of a valid transaction ( see also ORG judgment no.CARDINAL of CARDINAL in case no . CARDINAL\/CARDINAL ) .","Section CARDINAL \u00a7 CARDINAL of the DATE LAW persons in the applicants\u2019 position to seek compensation for improvements they have made to the property . They can recover the sums spent for the improvements , not an amount representing the resulting value increase ( see ORG judgment no . CARDINAL of CARDINAL in case no . CARDINAL\/CARDINAL ) . In practice , however , these claims only lead to recovery of insignificant amounts owing to inflation , which in DATE depreciated the national currency by a factor of CARDINAL , and as a result of the NORP courts\u2019 practice of refusing revalorisation . LAW does not provide for recovery by persons in the applicants\u2019 position of the price they paid for the property . Theoretically , they could bring proceedings for unjust enrichment under LAW against the ORG or the enterprise or institution which had received reimbursement from the restored owners under LAW but there is no reported case - law confirming this possibility ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23082","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2001,"docname":"NIVETTE v. FRANCE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is an NORP national , born in DATE and currently in custody in FAC . He was represented before the ORG by Mr PERSON , of FAC .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG ( GPE ) issued an international warrant for the arrest of the applicant , who was suspected of having murdered his girlfriend on DATE .","On DATE the applicant was arrested at ORG ( GPE ) and taken into custody pending extradition proceedings .","On DATE GPE authorities filed an extradition request with ORG .","On DATE ORG of ORG ruled in favour of extraditing the applicant provided that GPE authorities gave the NORP government an assurance that they would neither seek nor apply the death penalty . It referred expressly to the terms of a written declaration made by the GPE District Attorney on DATE , which stated :","\u201c ... under GPE law ... , I have the exclusive right to determine whether criminal charges will be filed against any particular defendant , and ... what the charges will be . ...","...","In the case of PERSON , I have been advised by my deputies and agree that no \u2018 special circumstance\u2019 is applicable ... This affidavit may be deemed a commitment by my office to not seek the death penalty against PERSON . \u201d","ORG pointed out that , while the application of the death penalty to a person whose extradition had been granted by the NORP government would be contrary to NORP public policy under LAW of DATE abolishing the death penalty and LAW No . CARDINAL to LAW , the same was not true of life imprisonment without the possibility of parole . The court also found that the question whether a limitation period applied to the crime ( crime ) committed did not arise because , even in GPE , the DATE period had only just begun .","Lastly , it found that , although the applicant had claimed to be a NORP national at the hearing , it could not be seriously disputed that he had NORP nationality only and so it declined to seek a preliminary ruling on that issue .","On DATE ORG dismissed the applicant \u2019s appeal on points of law against ORG decision . It held that the ruling in favour of extradition , together with its proviso , was in accordance with domestic law . It declined , however , to rule on the grounds of appeal relating to nationality and the death - row phenomenon , taking the view that they amounted to criticisms of some of the reasons given in ORG judgment and were therefore inadmissible .","On DATE the applicant applied to ORG for a declaration of nationality .","On DATE , at the NORP government \u2019s request , further guarantees were provided by the GPE District Attorney , who stated that :","( a ) as District Attorney , she was authorised by law to bind the State of GPE by her decisions and so the undertaking she had given was binding both on her successors and on GPE ;","( b ) her declaration amounted to a commitment and an assurance by ORG that the death penalty would not be sought or applied against PERSON at any stage in the prosecution or the criminal proceedings instituted against him ;","( c ) NORP under LAW of LAW a death sentence for murder could be passed only if CARDINAL of CARDINAL special circumstances listed in the section applied ;","( d ) the laws of ORG made it legally impossible for the death penalty to be imposed unless a special circumstance was charged by the prosecuting authorities and upheld by the trial court ;","( e ) the District Attorney alone was entitled to charge a special circumstance ; no special circumstance would be charged in this case and therefore no court would be able to impose the death penalty on PERSON ;","( f ) even if the understanding of the facts in the case were to change in the future , her decision not to seek the death penalty was irrevocable . Even where a special circumstance existed , LOC had a legal right not to charge it and she would not do so in this case even if a special circumstance became apparent at a later stage ; it was consequently impossible for the death penalty to be imposed .","That declaration was made \u201c under penalty of perjury \u201d .","On DATE the GPE embassy in GPE forwarded to the NORP government assurances made by the federal government .","On DATE the NORP Prime Minister issued an extradition order ; the applicant appealed to the PERSON d\u2019Etat .","On DATE the ORG d\u2019Etat held as follows :","\u201c The death penalty was abolished in GPE by the PERSON of DATE . Under LAW No . CARDINAL to ORG , which was incorporated into the domestic legal order following its ratification ... , \u2018 The death penalty shall be abolished . No one shall be condemned to such penalty or GPE . Applying the death penalty to a person whose extradition has been granted by the NORP government would contravene NORP public policy . Consequently , if any of the crimes for which extradition is sought from the NORP authorities is punishable by death under the law of the requesting ORG , extradition in respect of that crime may legally be granted only on condition that the requesting ORG gives sufficient assurances that the death penalty will not be imposed or will not be executed . On the other hand , extradition of a person liable to serve a life sentence without any possibility of early release is not contrary to NORP public policy or LAW .","The government of the United States\u2019 request for the extradition of PERSON is based on an act of murder . Under the criminal - law provisions that apply in GPE , which is the ORG whose courts have jurisdiction in the case , an accused found guilty of murder is liable to the death penalty .","On DATE ORG of ORG ruled in favour of Mr ORG \u2019s extradition provided that the relevant GPE authorities gave assurances to the NORP government that , even if the death penalty was imposed , it would not be sought or applied .","Under the impugned order of DATE , the NORP government acceded to the NORP authorities\u2019 request for the applicant \u2019s extradition provided that the death penalty was not sought , imposed or executed . In a diplomatic note of CARDINAL DATE , the GPE embassy made known to the NORP government the GPE government \u2019s assurance that , if Mr ORG \u2019s extradition was granted , the death penalty would not be imposed or carried out . GPE authorities also conveyed to the NORP authorities the undertaking made on behalf of ORG by the District Attorney of GPE \u2013 where PERSON ORG would stand trial DATE that the relevant prosecuting authority would not apply for the death penalty to be imposed on the applicant , even if new facts were uncovered that could amount to special circumstances . In an affidavit the GPE District Attorney gave a formal assurance that the death penalty could not be imposed unless a special circumstance was charged by the prosecuting authorities . Under these circumstances , the applicant is not justified in maintaining that the impugned order is not attended by adequate safeguards and that his extradition would contravene NORP public policy .","Contrary to the applicant \u2019s allegations , the United States\u2019 legal system respects ORG fundamental rights and freedoms as required by the general principles of extradition law . The impugned order is therefore not in breach of LAW .","PERSON maintained that he was a NORP national but provided no evidence to support that assertion . In the absence of any serious dispute on this subject , there is no reason to seek a preliminary ruling from the court competent to determine nationality issues .","It follows that PERSON is not justified in seeking to have the impugned order quashed ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72113","languageisocode":"ENG","respondent":"CYP","branch":"CHAMBER","date":2006,"docname":"CASE OF KYRIAKIDIS AND KYRIAKIDOU v. CYPRUS","importance":4,"conclusion":"Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the applicants filed a civil action before ORG of GPE against ORG concerning a deposit they had allegedly made to the latter in DATE . The applicants stated that , before filing the action , they had complained to the police and to the Attorney - General of the Republic , who they maintained , refused to investigate their case .","The pleadings were completed on DATE following CARDINAL adjournments at the defendant \u2019s request , with the applicants\u2019 consent , in relation to the filing of its defence .","From DATE until DATE the case was adjourned CARDINAL times at the defendant \u2019s request and with the applicants\u2019 consent , twice at the parties\u2019 and once at the applicant \u2019s request . Further , the court adjourned the case CARDINAL times mainly for the purpose of dealing with other civil actions . For example the case was adjourned from DATE until DATE and then to DATE ; from DATE to DATE and from DATE until DATE for directions . Within this period , the court also dealt with an interlocutory application filed by the defendant in the proceedings .","The hearing of the case commenced on DATE and concluded on DATE . Within this period a total of CARDINAL hearing sessions were held and an interim decision was delivered .","On DATE the district court delivered its judgment dismissing the applicants\u2019 action with costs to be paid by them .","DATE ( CARDINAL ) of LAW in so far as relevant provides as follows :","( CARDINAL ) \u201c In the determination of his civil rights and obligations ... , every person is entitled to a ... hearing within a reasonable time by [ a ] ... court ... \u201d .","On DATE ORG adopted \u201c The Rule of Judicial Practice \u201d which provides as follows :","\u201c During the ORG \u2019s meeting of DATE and before the ORG proceeds with its judicial work , the President announced the issuing of the following Judicial Rule of practice \u201d .","The President of the Supreme Court Mr PERSON stated as follows :","\u201c With the unanimous agreement of all the Judges of ORG , the following Rule of Practice is issued :","It is acknowledged that the duty for the hearing of cases within reasonable time is the individual duty of the trial judge and a collective duty of the judicial function . The establishment of rules for conducting a trial within reasonable time and the supervision of the procedures towards preventing delays is the responsibility of ORG . Its performance must be regulated in a way which secures , not only in advance but also during the course of the trial of cases , that the safeguards set by LAW and the principles governing the proper administration of ORG , as set out in circulars of ORG , are complied with . For achieving this purpose , the present Rule of Practice is adopted .","Whenever it comes within the knowledge of ORG ( either through the Registries or following representations made by any person having an interest in the trial of the case without delay ) that the trial of the case is being delayed , or it appears from the arrangements made \u2013 in respect of its trial\u2013 that it is possible that the trial be delayed , or where it appears that the hearing is not conducted uninterruptedly as determined by the circulars of ORG , ORG may issue directions for preventing delays in the hearing of the case and for the uninterrupted trial of the case as it deems fit . The responsibility of observing the conduct of cases undergoing trial , for the purpose of briefing ORG of delays noted or envisaged in the trial of civil and criminal cases , shall be vested with the Registrar , who will serve at ORG . The gathering of information on this matter shall be regulated by ORG in due course \u201d ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57783","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1992,"docname":"CASE OF GIANCARLO LOMBARDO v. ITALY","importance":2,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient","judges":"C. Russo;John Freeland;N. Valticos;R. Pekkanen","text":["Mr PERSON , a former judge , lived in GPE until his death . The facts established by the Commission pursuant to LAW CARDINAL ( LAW are as follows ( see paragraphs CARDINAL of its report ) :","\" CARDINAL . As the pensions of public servants and judges are not indexed in GPE , successive adjustments produced a situation in which the amount of pension paid by the ORG to retired judges having the same grade and with the same number of DATE of service but having retired at different dates varied considerably , in a way which the applicant considered to be unjustified .","Consequently , at the same time as a number of other retired judges , on DATE , the applicant appealed to ORG against a decree of ORG rejecting his application for the amount of his pension to be increased ; he argued that the provisions of the legislation on which the disparity of treatment was based were unconstitutional .","On DATE the secretariat of ORG asked ORG to forward the applicant \u2019s file , which was done on DATE .","On DATE the file was sent to the principal public prosecutor attached to ORG , so that he could investigate the case and formulate his submissions . These submissions were added to the file on DATE .","On DATE the principal public prosecutor , considering that the case raised questions of principle , asked for it to be examined by the combined divisions of ORG .","Subsequently , examination of the appeal was adjourned pending the outcome of an appeal to the combined divisions of ORG entered by the principal public prosecutor on DATE against a decision of the division having jurisdiction over pensions , given in an analogous case .","These appeal proceedings proved to be lengthy . At the first hearing , arranged to take place on DATE , a first objection of unconstitutionality was raised . The combined divisions of ORG held that the objection was not manifestly ill - founded and , in decision ( ordinanza ) no . CARDINAL of the same date , referred the matter to ORG .","ORG gave its decision in a judgment filed on DATE .","The case was again submitted to the combined divisions of ORG after a request to that effect had been made by the avvocato dello Stato ( counsel representing the ORG ) on DATE . A hearing was arranged for DATE . At that hearing a second objection of unconstitutionality was raised . ORG held that the second objection was not manifestly ill - founded and once again referred the matter to ORG in decision no . CARDINAL of the same date .","The file was sent to ORG on DATE . ORG arranged for the objection of unconstitutionality to be examined at a hearing on DATE . Its judgment was transmitted to the combined divisions of ORG on DATE .","The case was due to be heard by the combined divisions of ORG on DATE but had to be adjourned by the court until DATE , following a strike by its staff . On that date ORG referred the case to the relevant division . Its decision was filed with the registry on DATE .","The relevant decision arranged for this case and the numerous others pending , including the applicant \u2019s , to be heard on CARDINAL DATE .","In a judgment dated DATE , filed with the registry on DATE , it partially upheld the applicant \u2019s appeal and ordered the readjustment of his pension , re- evaluation of the sums due and payment of interest on those sums . \"","On DATE the principal public prosecutor communicated that judgment to the Minister of ORG in order for him to arrange for its execution ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71045","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2005,"docname":"KAIPILA v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in ORG . The Government are represented by their Agent , Mr PERSON , Director in ORG .","The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .","On DATE the chief physician at the health care centre referred the applicant for observation ( tarkkailul\u00e4hete , observationsremiss ) . He was admitted to the local hospital on DATE . He however left the hospital in TIME .","On DATE a physician at the psychiatric clinic of the same hospital referred the applicant anew for observation .","On DATE another physician at the hospital issued a medical statement finding that the conditions for involuntary treatment were met ( tarkkailulausunto , observationsutl\u00e5tande ) .","DATE the applicant was committed to involuntary psychiatric treatment ( hoito tahdosta riippumatta , v\u00e5rd oberoende av patientens vilja ) by a decision of the chief physician , X , of the psychiatric clinic at the local hospital . According to the decision , the applicant was in need of treatment for a mental illness , which if not treated would considerably worsen or severely endanger his health or safety or the health or safety of others . No other mental health services were considered applicable or adequate .","On DATE the applicant left the hospital without authorisation . As the police were unable to find him , he was discharged from the hospital on DATE .","On DATE the applicant , represented by counsel , appealed against the decision to commit him to treatment to the then ORG ( l\u00e4\u00e4ninoikeus , l\u00e4nsr\u00e4tten ) of GPE and PERSON , arguing in essence that he was not mentally ill . Nor was he a danger to himself or others . He did not request an oral hearing . DATE the court requested X to produce a fresh medical opinion and other documents , which were subsequently communicated to the applicant . In his submission of CARDINAL DATE the applicant , represented by counsel , considered the findings in the medical opinion unfounded and unproven . He did not request a hearing at this point , either .","On DATE ORG rejected the appeal , finding that the applicant \u2019s mental state at the time of the impugned decision had justified the involuntary psychiatric treatment . It granted him cost - free proceedings and free legal assistance . It did not hold an oral hearing of its own motion .","The applicant appealed further to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) , requesting an oral hearing during which he and the doctors who had treated him should be heard . He contested the diagnosis on which his detention had been based .","On DATE ORG , having received X \u2019s submission and communicated it to the applicant , rejected the appeal . It refused the request for a hearing as unnecessary as it found that the case turned on an assessment of medical evidence .","On DATE the applicant was charged with , inter alia , aggravated drunken driving , committed on DATE . ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) of PERSON granted him cost - free proceedings but rejected the requested free legal assistance . On DATE he was convicted as charged and sentenced to CARDINAL months\u2019 imprisonment .","The applicant appealed , claiming that he had driven the vehicle under emergency conditions escaping a violent attack by a third person . On DATE ORG ( hovioikeus , hovr\u00e4tten ) rejected the appeal .","The applicant applied to ORG ( korkein oikeus , h\u00f6gsta domstolen ) for leave to appeal , claiming that the presiding judge in ORG had not taken into account any of his arguments concerning the alleged act of emergency and that the judge had not allowed him to put forward any arguments for his defence . He also claimed that his representative , who had not been present at ORG hearing but merely drafted his writ of appeal to ORG , had not been able to comment on the judge \u2019s behaviour in the writ of appeal as he was reluctant to raise any unpleasant issues at a court where he worked DATE as a representative . On DATE ORG , having granted the applicant free legal assistance , refused leave to appeal .","LAW ( mielenterveyslaki , mentalv\u00e5rdslagen ; DATE ) provides that involuntary treatment in a psychiatric hospital can be ordered only if the adult patient is diagnosed as mentally ill and needs treatment for the mental illness which , if untreated , would considerably worsen or severely endanger his or her health or safety or the health or safety of others and if other mental health services are inapplicable or inadequate ( section CARDINAL) .","For the purposes of establishing whether these conditions are met , the patient may be admitted to hospital for observation . Prior to such a referral , a physician must examine the patient and issue a written and reasoned referral for observation ( section CARDINAL ) .","The physician in charge of the observation shall produce a written statement DATE after the admission of the patient . It shall include a well - founded opinion on whether the conditions are met for ordering the patient to undergo involuntary treatment . If those conditions cease to exist during the observation period , the observation shall be discontinued immediately and the patient shall be discharged if he or she so wishes ( section CARDINAL ) .","The referral for observation and the observation are CARDINAL separate measures which are taken independently of CARDINAL another . Further , the doctor deciding on admission for observation is not bound by the referral for observation but must independently assess whether the conditions for ordering the patient to undergo treatment are likely to be met .","The patient \u2019s opinion shall be found out before he or she is ordered to undergo treatment . The relevant decision is made by the chief physician in charge of psychiatric care . It must be reasoned and be in writing , it must be based on the referral for observation , the statement on observation and the case history , and it must be produced DATE after the admission for observation ( section CARDINAL ) .","Accordingly , there are CARDINAL doctors involved in the process .","The order for treatment can be appealed to ORG . A further appeal lies to ORG .","ORG ( hallintolaink\u00e4ytt\u00f6laki , f\u00f6rvaltningsprocesslagen ; ORG ) provides that an oral hearing shall be conducted when necessary for the purposes of establishing the facts of the case . The parties , witnesses and experts , inter alia , may be heard and other evidence received in the hearing . The hearing may be limited to only a part of the matter , to clarify the opinions of the parties or to receive oral evidence , or in another comparable manner ( section CARDINAL ) .","An administrative court shall hold an oral hearing if a private party so requests . The same applies to ORG where it is considering an appeal against the decision of an administrative authority . A hearing need not be held if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for any other reason . If a party requests an oral hearing , he or she shall state why it is necessary and what evidence will be presented in the hearing ( section CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103588","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2011,"docname":"ARSLAN v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants are NORP nationals and at the time of lodging their applications they were serving their prison sentences in various establishments . The dates of introduction of the applications appear in the table below . The names and dates of birth of the applicants , as well as the names of their representatives appear in the appendix .","All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they are held . Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences , various types of disciplinary sanctions were imposed on them . Their appeal requests were rejected respectively by ORG and ORG , on the basis of the case file , without hearing the applicants or their lawyers , pursuant to LAW . DATE on ORG , dated CARDINAL DATE .","The details of the applications as well as the complaints raised by the applicants appear in the table below .","A description of the relevant domestic law may be found in G\u00fclmez v. GPE , no . CARDINAL , LAW , DATE and LOC and others ( DATE . ) , nos . CARDINAL\/CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL\/CARDINAL , and CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82447","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2007,"docname":"CASE OF AKIMOVA v. AZERBAIJAN","importance":4,"conclusion":"Violation of P1-1","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","By an order of ORG ( \u201c ORG \u201d ) of DATE , the applicant was issued , under the state housing policy , an occupancy voucher ( ya\u015fay\u0131\u015f orderi ) to a CARDINAL - room apartment in a state - owned residential building in GPE . The applicant did not move into her new apartment at that time , because the construction of the building had not been completely finished and the tenants had to undertake the repair works in their respective apartments at their own expense .","In DATE , pursuant to an oral agreement , the applicant allowed NORP , an acquaintance of hers , to use the apartment temporarily , free of charge . Under the arrangement reached by the parties , NORP was to use the apartment in exchange for certain repair works that he would perform using the materials provided by the applicant . In addition , NORP agreed to vacate the apartment whenever the applicant made such a demand .","Some unspecified time later , in breach of the existing oral agreement , NORP allowed his relative PERSON and his family ( hereinafter to be collectively referred to as \u201c H. \u201d ) to move into and live in the apartment . H. were internally displaced persons ( \u201c ORG \u201d ) from PERSON , a region under control of NORP military forces following the NORP - Azerbaijani conflict over GPE - Karabakh .","When the applicant found out that her apartment was occupied by people unknown to her , she requested that they vacate it . However , H. refused to do so , stating that they had no other place to live . The applicant filed a lawsuit , requesting the court to evict PERSON from the apartment .","On DATE ORG granted the applicant 's request . The court found that , prior to moving into the disputed apartment , PERSON had been living in GPE and in LOC where they had been registered as IDPs . They did not dispute the fact that they had settled in the apartment in DATE . The court further found that the applicant was the lawful tenant of the apartment and , as such , had a right to demand PERSON to vacate it . The court ordered that ORG be evicted . PERSON appealed .","On DATE ORG quashed the district court 's judgment . The court held that ORG 's order to issue an occupancy voucher to a partly constructed building had been in breach of the requirements of the domestic law . The court further held that the applicant had not concluded a social tenancy agreement concerning the apartment and , therefore , she could not have a valid claim to it . The court therefore quashed the first - instance court 's order to evict PERSON from the apartment .","The applicant filed an appeal in cassation . On DATE ORG reversed ORG judgment and partially upheld the applicant 's request . ORG found that ORG erred in judging on the validity of the applicant 's occupancy voucher . It held that the applicant 's tenancy rights were undisputed and that the proceedings only concerned PERSON 's right to remain in the applicant 's apartment . ORG quashed ORG decision in this part .","ORG further ruled that PERSON should vacate the applicant 's apartment . However , taking into account the fact that H. could not return to their permanent place of residence in PERSON and , in the meantime , had no other place in which to reside , the Court held that the execution of its decision should be postponed until they could return to PERSON .","Thereafter , based on the applicant 's additional cassation appeal , the proceedings were reopened and on DATE the ORG of ORG quashed ORG decision of DATE . The ORG noted that , having found errors in ORG judgment , ORG had no competence under civil procedure law to deliver a new judgment on the merits and , instead , was obliged to quash ORG judgment and refer the case for re - examination by ORG . Accordingly , the ORG found that , although the conclusions reached by ORG were essentially correct , it had breached the procedural rules by delivering a new judgment on the merits . The ORG remitted the case to ORG .","On DATE ORG delivered a judgment identical to ORG decision of DATE . It ruled that PERSON should vacate the applicant 's apartment . It further held as follows :","\u201c ... the claim of PERSON must be upheld ; however , having regard to the fact that the defendants are internally displaced persons from LOC and do not have another place in which to reside , the execution of the judgment shall be postponed until GPE is liberated from occupation . \u201d","At present , PERSON remains under the control of NORP forces and the GPE - Karabakh conflict remains unresolved . At the time of the latest communication with the parties , PERSON was still living in the applicant 's apartment .","The Housing Code provides that NORP citizens are entitled to obtain a right of use of apartments owned by the ORG or other public bodies , under the terms of a tenancy agreement ( ORG CARDINAL and CARDINAL ) .","A decision on granting an apartment is to be implemented by way of issuing the citizen with an occupancy voucher ( ya\u015fay\u0131\u015f sah\u0259si orderi ) from the local executive authority ( LAW . The voucher serves as the sole legal basis for taking possession of the apartment designated therein ( LAW ) and for concluding a tenancy agreement ( ya\u015fay\u0131\u015f sah\u0259sini icar\u0259 m\u00fcqavil\u0259si ) between the tenant and the housing maintenance authority ( LAW .","The right of use of apartments is granted for an indefinite term ( LAW . The tenant can terminate the tenancy agreement at any moment , with the consent of his or her family members ( LAW ) . The landlord ( the housing maintenance authority ) can terminate the agreement only on the grounds provided for by law and on the basis of a court decision ( Articles DATE ) . If the agreement is terminated because the house is no longer fit for living in , the tenant and family must be provided with a substitute apartment with full amenities ( Articles CARDINAL and CARDINAL ) . Tenants or members of their family can be evicted without provision of substitute accommodation only if they \u201c systematically destroy or damage the apartment \u201d , \u201c use it for purposes other than residence \u201d or \u201c systematically breach the [ generally accepted rules of conduct ] , thus making cohabitation with others impossible \u201d ( Article CARDINAL ) .","Individuals residing , pursuant to a tenancy agreement , in apartments owned by the ORG and other public bodies have a right to transfer these apartments into their private ownership ( LAW . Such privatisation is voluntary and free of charge ( LAW . The right to privatise a ORG - owned apartment free of charge may be exercised only once ( DATE ) .","Article CARDINAL of the PERSON provides as follows :","\u201c Persons displaced from the places of their permanent residence in the territory of GPE to other places within the territory of the country as a result of foreign military aggression , occupation of certain territories or continuous gunfire , shall be considered as internally displaced persons subject to the provisions of this PERSON . \u201d","DATE the PERSON provides as follows :","\u201c The relevant executive authority [ the Cabinet of Ministers , ORG on ORG and local executive authorities , within the scope of their respective competence ] shall deal with the housing of internally displaced persons . Residential , administrative and auxiliary buildings , as well as other buildings , shall be used for such housing purposes . Where there is no possibility to house internally displaced persons in such buildings or where the density of population in a specific settlement does not allow such a possibility , they shall be settled in camps specially set up for internally displaced persons . ...","The internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed . Otherwise , the relevant executive authority must ensure re - settlement of the internally displaced persons to other accommodation ... \u201d","DATE Regulations provides :","\u201c In order to prevent the eviction of the internally displaced persons from dwellings in which they settled during DATE , the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended ... \u201d","In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals , the former must be provided with other suitable accommodation ( DATE ) .","The judge examining a civil case may , upon a petition by a party to the case , decide to postpone or suspend the execution of the judgment or change the manner of execution , due to the parties ' property situation or other circumstances ( Article CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86109","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF PORTNOVA v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in the town of GPE in GPE .","The applicant was entitled to a disability allowance and commodity benefits . She sued the local ORG for the unpaid allowance and benefits , and claimed their re - adjustment .","By judgment of DATE , ORG of the Voronezh Region awarded the applicant MONEY ( RUB ) for the period from DATE to DATE . On DATE ORG upheld the judgment . The applicant received the money due to her on DATE . On DATE ORG awarded the applicant RUB CARDINAL,CARDINAL.CARDINAL as compensation for inflationary losses caused by the delay in the enforcement of the judgment of DATE , as upheld on DATE . It appears that the compensation award has not been paid to the applicant .","By judgment of DATE , ORG awarded the applicant RUB CARDINAL for the period from CARDINAL August to DATE . This judgment became final on DATE . It was enforced on DATE .","On DATE ORG increased the applicant \u2019s DATE allowance to RUB DATE and awarded her RUB ORG in arrears for the period from DATE . The judgment became final on DATE . It was enforced on DATE .","On DATE ORG awarded the applicant RUB CARDINAL . On DATE the judgment became final . The applicant received the money on DATE .","By judgment of DATE , ORG awarded RUB CARDINAL,CARDINAL.CARDINAL as compensation for inflationary losses in respect of the sums awarded to the applicant on DATE , DATE and DATE . It appears that the compensation award has not been paid to the applicant .","By judgment of DATE , ORG awarded the applicant RUB CARDINAL . The judgment became final on DATE . Apparently , it remains without enforcement .","On DATE ORG awarded RUB CARDINAL to the applicant and increased her DATE commodity benefits to RUB CARDINAL . The judgment became final on DATE . It appears that on DATE the applicant received RUB CARDINAL in execution of that judgment ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103021","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2011,"docname":"CASE OF P\u0141AZA v. POLAND","importance":4,"conclusion":"No violation of Art. 8","judges":"Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["The applicant was born in DATE and lives in PERSON .","He married ORG in DATE . On DATE PERSON , the couple 's daughter , was born . DATE the couple split up .","On DATE ORG pronounced their divorce . The court awarded custody of the couple 's child to both parents and ordered that her place of residence should be with her mother .","DATE several sets of proceedings were conducted concerning the enforcement of the access arrangements provided in the divorce judgment . Ultimately , on DATE the parties reached an agreement validated by the court as to the manner of implementing the custody arrangements . The applicant was allowed to see PERSON once a month on DATE for TIME , from TIME","Subsequently , the GPE - ORG and , upon appeal , ORG , conducted successive sets of enforcement proceedings in respect of the DATE agreement . In particular , it examined the applicant 's successive applications for a fine to be imposed on the mother and\/or to have time - limits fixed within which she should comply with the access arrangements and allow the applicant to see PERSON","On DATE the applicant lodged an application with ORG for a fine to be imposed on PERSON 's mother . He submitted that she had consistently failed to comply with the conditions of the agreement concluded in DATE . On DATE the mother was summoned by the court and ordered to allow the applicant access to their child within DATE . Upon her appeal , on DATE ORG quashed that decision on formal grounds and remitted the case . On DATE the GPE - ORG set a DATE time - limit within which the mother was to comply with the conditions of the access agreement .","In letters to the Warszawa ORG of DATE and DATE , DATE and DATE , ORG requested the court to order the applicant to attend the meetings with the child without male friends , to dress appropriately for the occasion , to arrive on time and not to tease the child . In a letter of CARDINAL DATE she informed the court that the applicant had failed to attend meetings planned for DATE , DATE and DATE , without having informed her that he would not come . She further stated that despite this the child would be ready to meet her father under the conditions specified in the agreement . In a letter of CARDINAL DATE she informed the court that out of CARDINAL DATE meetings planned since the agreement had been concluded the applicant had failed to attend DATE .","In DATE ORG appointed a custody officer to supervise the execution of the access agreement . She periodically submitted reports to the court , dated , inter alia , DATE , DATE and DATE , CARDINAL DATE , DATE and CARDINAL DATE and CARDINAL DATE .","NORP In DATE the first - instance court , following the applicant 's complaint , again set a DATE timelimit for the mother to comply with the access arrangements and imposed a fine on her in the amount of MONEY ( ORG ) .","On DATE and CARDINAL DATE the applicant renewed his applications . The court dismissed them on DATE . It observed that there were no grounds for imposing a fine , as the mother had not taken any steps to make it impossible for the father to see the child . It was the child herself who was hostile to her father .","The applicant appealed , complaining that the court lacked impartiality and that it had wrongly assessed the evidence before it . ORG dismissed his appeal on DATE . It found that the parties had been in a bitter conflict ; that the child had a negative attitude towards her father ; that the mother had not done anything to prevent the girl from having contact with her father ; that it was not in the child 's best interest to force her to have frequent contact with him ; and that the lower court had made correct findings of fact .","In DATE the applicant submitted a new application for a fine to be imposed on the mother . On DATE the court dismissed it , essentially reiterating the reasoning adopted in its decision of DATE and referring to similar findings of fact . It observed that the mother and father were in a conflict so bitter that they had become unable to see how much their conflict affected the child . They both blamed the other party for all the problems arising in connection with the exercise of custody and access rights , failing to see their own shortcomings and being unable to reach any compromise . The child had become an instrument in the fight between the parties . The child 's hostility to her father and , in particular , the fact that the mother had not sought to influence her attitude , was alarming . The parents had told the court that they needed therapy , but had failed to do anything about it . The father had repeatedly asked for the mother to be punished by a fine but he had not challenged the assertion that it was the child herself who did not want to see him .","The applicant appealed , complaining that the first - instance court had been very superficial in the examination of the evidence .","On DATE ORG dismissed the applicant 's appeal against that decision . It observed that forcing the child to see his father would not by itself restore the emotional ties between the girl and her father , and that these ties had become seriously weakened .","On DATE the applicant submitted a new application to make the mother comply with the access arrangements . In the proceedings instituted by this application the court ordered that another opinion should be prepared by psychologists to assess both the feasibility of the applicant 's contact with PERSON and the psychological state of the persons concerned .","In that opinion , dated DATE , the experts stated that the child had declared that she had agreed to talk to the experts only at her mother 's request . She had stressed that she had not changed and would not change her attitude towards her father . She could not understand why the applicant wanted to pursue contact , given that he had filed an application for denial of paternity ( see paragraphs CARDINAL - CARDINAL below ) . She was convinced that he was motivated by his wish to annoy and cause stress to herself and her mother . She had complained about his visits to her school and the fact that he had told her teachers and her friends that she was a \u201c bad daughter \u201d . PERSON had called the applicant a \u201c sadist \u201d . She had objected to his criticising her mother , to whom she was very strongly attached . PERSON had strongly denied that her mother had ever forbidden her to see the applicant .","In their conclusion the experts reiterated the conclusion of their DATE report and noted that the therapy , which both the parents and the daughter had undergone separately , had not produced positive results .","On DATE the first - instance court again set a DATE time - limit for the mother , on pain of a fine of ORG CARDINAL . The court summarised the enforcement proceedings and the decisions given in them . It noted that the applicant had not behaved badly towards the child and that he had reported regularly for the meetings . His behaviour towards the child might have been awkward but this was due essentially to the fact that he did not actually know the girl as he had had very little opportunity to get to know her . The court referred to an expert opinion prepared for the purposes of the proceedings and concerning the child 's psychological situation . PERSON was very hostile towards her father , despite the fact that she had had no personal experience with him capable of justifying her hostility . The mother had failed to take any steps to persuade the child to have contact with her father or to alter the negative image which the child had formed of him . The court found PERSON 's attitude alarming . It further noted that had the mother been dissatisfied with the scope or character of the applicant 's access rights , it had been open to her to challenge them in separate proceedings . The present case was concerned only with the enforcement of the existing access rights as defined by the DATE agreement and it was obvious that the mother was not complying with them .","Both parties appealed . In her appeal ORG stressed that she had never taken any steps to prevent her daughter from meeting the applicant . It was the child who had steadfastly refused to see her father , which left the mother helpless . In his appeal , the applicant insisted that the mother should be obliged to pay the fine after the expiry of the timelimit , as provided for by LAW .","The appeals were dismissed on DATE . ORG dismissed the applicant 's appeal , in which he sought that a fine be imposed on the mother , noting that a fine could only be imposed if she had failed to honour her obligation within the time - limit set by the court . It further observed that it was actually the child , not the mother , who had refused contact , while it was the mother who was the debtor within the meaning of LAW .","It also dismissed the mother 's appeal , observing that the child had , beyond any doubt , been drawn into the conflict between the parties . The image she had of her father had been shaped by her mother , particularly as the child had not had any contact with her father for DATE , despite the fact that he had always been ready to see her and continued to come to the meetings fixed for that purpose . It was the mother who was responsible for the child 's attitude , which was full of hatred and hostility towards her father . The court found the mother 's attitude inappropriate . It further noted that the applicant and the mother and child had undergone therapy , but separately . However , as the child had refused to talk about her father , the issue of contact with him had not been addressed in her therapy . There were no grounds for believing that contact with her father would harm the child .","On DATE the GPE - Mokot\u00f3w ORG examined a complaint by the applicant , submitted on DATE , that the access rights had not been properly implemented , despite the expiry of the time - limit set for that purpose in the decision of CARDINAL DATE . The court noted that the time - limit for ensuring compliance had expired and that since that date the applicant had not seen the child as she steadfastly refused to meet him . The court imposed a fine of ORG CARDINAL on the mother . It further set a timelimit of thirty days for her to comply with the access arrangements .","E.K. appealed . On DATE ORG allowed her appeal and remitted the case . It observed that while it was true that the contact arrangements had not been respected , this was not because of the mother 's failure to comply with them , but because of the girl 's attitude . It further noted that she was DATE and her views and feelings had to be taken into account by the courts .","On DATE the Warszawa - Mokot\u00f3w District Court dismissed the applicant 's application for a fine to be imposed on PERSON The court heard PERSON in the absence of the parties and referred to her statements in its decision . She stated that it was she who had not complied with the access agreement . She told the court that the applicant had never been around when she needed him , he had never listened to her and had only wanted to hurt and annoy her mother . She stated that she would not see her father .","The court emphasised that the father had a right to contact his daughter and the parties themselves had had regard to this right when concluding the DATE agreement . However , while the situation obtaining at that time had probably offered prospects of contact , the court was obliged to take into consideration the current situation . PERSON was now DATE and her opinion had to be taken into account . Lack of regular and peaceful contact for DATE had resulted on her part in a lack of any emotional ties with her father . It could not be overlooked that the applicant did not want to listen to her views or to respect them . Even before the proceedings before the court he was dismissive of her views and expressed the opinion that they had been dictated by her mother .","The court concluded that it could not be said that the mother was to blame for making contact impossible . There were no grounds for imposing a fine on her .","The applicant appealed , requesting that the decision be quashed .","On DATE ORG dismissed his appeal , finding that there were no grounds on which to impose a fine on the mother , given that the child was old enough to express her own views and feelings on the question of contact , which she obviously did not want to maintain . The mother could not be said to bear responsibility for the non - enforcement of the access arrangements .","On DATE the applicant again requested that a fine be imposed on ORG for failure to respect the access arrangements .","After DATE , he had no further contact with the girl , even sporadically .","In reports submitted to the court on DATE and CARDINAL DATE the custody officer summarised her conversations with ORG and PERSON She stated that PERSON was very mature for her age and very articulate . She did not understand how her father could say that he loved her and behave towards her in the way he did . He did not take her views into account , criticised her mother and her family , and had told many persons in PERSON 's environment that her mother was incapable of taking proper care of her . During the contact visits , he had complained about her mother . She did not want to be exposed to this . She requested recognition and understanding of her feelings and views . She stated that she was almost an adult and able to make a sensible judgment for herself . The contact with her father had been a source of stress , anxiety and shame for her .","On a subsequent unspecified date the Warszawa - Mokot\u00f3w District Court ordered the applicant to submit the original of the access agreement of DATE . The applicant complied on DATE .","His application of DATE ( see paragraph CARDINAL above ) was dismissed by ORG on DATE . The court had regard to all the material gathered in the file on the enforcement proceedings . It took into account ORG 's persistent refusal to see the applicant and the fact that she had repeatedly said that she disliked or even hated him . It noted that there was no evidence that ORG had prevented her daughter from seeing her father . It observed that the applicant 's conduct towards PERSON could not have contributed to building good relations between them as he had tried on various occasions to see her unexpectedly at school or in other places or circumstances , which had only heightened the child 's dislike and fear of him . It also noted that PERSON was DATE and her views had to be taken into consideration .","On DATE the court discontinued the proceedings concerning the enforcement of the DATE agreement on the ground that PERSON was now DATE and thus the proceedings had become devoid of purpose .","On DATE the court extended the applicant 's access rights specified in the DATE agreement and ordered that his meetings with PERSON be supervised by child contact supervisors . This decision was later amended by ORG on DATE . That court held that the temporal scope of the applicant 's contact visits with PERSON should remain as determined in the original agreement but upheld the proviso that they should be supervised by child contact supervisors .","In DATE the applicant again requested ORG to change the access arrangements specified in the DATE agreement and to extend his visiting rights in respect of the child . Simultaneously , the mother requested the court to limit the applicant 's access rights to a minimum . These CARDINAL applications were subsequently joined and examined in the same set of proceedings .","The applicant 's daughter was examined by experts in the course of these proceedings . The objective of the expert opinion , submitted to ORG , was to examine the nature of the relationship between the applicant and his daughter and to assess the value of contact visits for the child 's development and well - being .","The experts observed that PERSON had a highly negative opinion of her father . She refused to use his surname as her own name . She was of the view that he had failed to show a proper interest in her and that in fact he despised her and all his actions were aimed at annoying her and her mother . The experts concluded that because of that negative attitude relations between the applicant and his daughter were strained to such an extent that any meaningful contact was impossible .","On DATE the court deprived the applicant of his access rights . The judgment was amended on DATE by ORG and the mother 's application to restrict the applicant 's access rights was dismissed .","In DATE the applicant submitted to the same court an application to have the mother 's custody rights restricted . In DATE ORG submitted an application to have the applicant divested of his rights .","By a decision of CARDINAL DATE the GPE - Mokot\u00f3w ORG dismissed the applicant 's request , ordered him to undergo therapy and imposed an identical obligation on PERSON and PERSON The court observed that , as the conflict between the parties had made it impossible for them to show a modicum of co - operation in the child 's interest , therapy offered a chance for their relationship to improve . The court found that the conflict between the parents had caused the child to suffer from very serious psychological disturbances .","In a new set of proceedings instituted by the applicant by which he requested that ORG be divested of her parental rights , the court questioned experts at a hearing held on DATE .","On DATE the ORG dismissed the request submitted by the applicant , expressing the view that the applicant was essentially motivated by his wish to harass his former wife .","On DATE ORG requested the DATE - Mokot\u00f3w ORG to divest the applicant of his parental rights . The applicant lodged an identical application with the same court . The cases were subsequently joined at a hearing held on DATE . A hearing scheduled for DATE was adjourned as a refusal to allow the request to disqualify the judge , submitted by the mother , issued on DATE , had not become final . Subsequent hearings scheduled for CARDINAL DATE and CARDINAL DATE were adjourned as the parties failed to attend them . On CARDINAL DATE a witness failed to comply with the summons and the hearing was adjourned . The next hearing was scheduled for CARDINAL DATE . On DATE the applicant submitted a motion for a lay judge to be disqualified . On CARDINAL DATE the court decided that the mother and child should be examined by the experts . The mother and PERSON were accordingly summoned to report to ORG on DATE but failed to comply with the summonses on DATE . The court scheduled the hearing for DATE . The interview in the ORG was rescheduled for DATE .","On DATE the court discontinued the proceedings as PERSON had turned DATE on DATE .","In DATE the applicant requested ORG to bring , on his behalf , proceedings for denial of his paternity in respect of PERSON The child 's mother was heard by the prosecutor on CARDINAL October CARDINAL . She gave her consent to DNA tests being carried out . The prosecutor informed the applicant thereof and stated that he would bring proceedings before the court only if the results of the tests showed that the applicant was not the father . By a letter of CARDINAL DATE the applicant refused to undergo a DNA test and requested the prosecutor to lodge the case with the court . He submitted that the court should order the mother and child to undergo a test .","The prosecuting authorities brought no proceedings , finding , in the light of the parties ' submissions , that there were no justified grounds on which to challenge the applicant 's paternity .","On an unspecified date in DATE the applicant filed a complaint under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki \u2013 \u201c the CARDINAL Act \u201d ) about a breach of his right to have his case heard within a reasonable time in the enforcement proceedings instituted by his application of DATE and terminated by the decision of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) .","On DATE ORG dismissed his complaint . It observed that the applicant complained essentially about the second - instance court 's quashing , on substantive law grounds , the decisions given by the first - instance court , which , in his view , had unduly prolonged the proceedings . The court noted that the length complaint could not go to the merits of the decisions and that there had been no periods of inactivity in the proceedings . Having examined the conduct of ORG since the entry into force of LAW on DATE , ORG found that the proceedings had been conducted with due diligence and within a reasonable time .","On DATE ORG discontinued the proceedings instituted by the applicant 's complaint about the unreasonable length of the proceedings , summarised in paragraphs CARDINAL and CARDINAL above . The court found that , given that the impugned proceedings had been discontinued on DATE , a ruling on their length had become redundant .","The relevant domestic law and judicial practice concerning the enforcement of a parent 's visiting rights are set out in the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL , \u00a7 CARDINAL , DATE .","NORP In particular , according to ORG resolution , if a parent who has been obliged by a court decision to respect the other parent 's access rights refuses to comply therewith , access decisions are liable to enforcement proceedings . The provisions of LAW on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL\/CARDINAL , OSNCP CARDINAL DATE ) .","\u201c CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on a motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of fine ( ... ) .","If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by a court . \u201d","If the court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation .","Article CARDINAL of ORG on the Rights of the PERSON provides that the GPE Parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child , the views of the child being given due weight in accordance with the age and maturity of the child .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the provisions of LAW as applicable at the material time , are set out in the ORG 's decisions in cases of ORG v. GPE no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and its judgment in the case of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-21954","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2001,"docname":"UNTERGUGGENBERGER v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is an NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr M. Graff , a lawyer practising in GPE . The respondent Government are represented by Ambassador PERSON , Head of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was a member of the executive board of ORG and was responsible for the management of the company \u2019s finances .","On DATE this company laid an information against the applicant inter alia on the suspicion that the applicant had caused financial damage by abusing his position as financial manager of the company . Point a ) of the information concerns transactions with ORG . It alleges that ORG , chosen by the applicant to carry out the management of ORG investment portfolio , had charged the latter excessive fees . It alleges further that the applicant had requested a refund of CARDINAL NORP schillings ( ORG ) for entrusting ORG with these financial transactions .","On DATE preliminary investigations were opened against the applicant .","On DATE ORG ( Wirtschaftspolizei ) carried out searches at the applicant \u2019s LOC and at the LOC of FAC , the former director of ORG , who was at the same time a witness against the applicant . CARDINAL diaries and CARDINAL pages of other documentary evidence ( the so - called \u201c green folder \u201d ) were seized at ORG \u2019s home . The documents which were considered relevant to the investigation were listed in a report of CARDINAL DATE .","On DATE the investigating judge at ORG heard the applicant . According to the TIME , the questioning started at TIME The applicant was informed that preliminary investigations on the suspicion of a breach of trust ( PERSON ) under LAW of LAW ) and on the suspicion of offences under LAW ( Aktiengesetz ) were pending against him . He was first heard as regards the alleged breach of LAW and then about the transactions with ORG . In this respect , he was told that he was suspected of having received a refund from PERSON and indications as to the amount at issue and the date of receipt were also given . The applicant stated that he was aware of the allegations and handed over a written statement outlining his position . The questioning on the transactions with ORG ended at TIME whereas the further questioning , which lasted until TIME , concerned facts which are not relevant in the present context .","On DATE the investigating judge decided that the defence was not entitled to inspect certain specified parts of the file . On CARDINAL DATE the applicant lodged a complaint against this decision with ORG ( Ratskammer ) of ORG which was unsuccessful .","On DATE ORG submitted a report on the result of their investigations to ORG . The latter confirmed in writing the receipt of the green folder , which was subsequently transmitted to an expert .","On DATE ORG filed a supplementary information against the applicant concerning transactions with ORG .","On DATE ORG filed another supplementary information against the applicant concerning new facts . It alleged that he had introduced L. as a fictitious intermediary in order to carry out certain financial transactions of ORG , a subsidiary of ORG , and that the commission paid had caused financial damage to ORG .","On CARDINAL and DATE ORG filed further documentary evidence and information .","On DATE ORG received the applicant \u2019s request to obtain the green folder from the expert in order to enable him to inspect it . He submitted that , according to the report of CARDINAL DATE by ORG , documents which were relevant to the proceedings had been seized at ORG \u2019s premises and had apparently been handed over to the expert who referred in his written opinion to CARDINAL of those documents . The investigating judge at ORG did not take any decision on this request .","On DATE ORG preferred the CARDINAL - page indictment against the applicant and his co - accused , PERSON , concerning charges of breach of trust under LAW of LAW . The applicant was accused , inter alia , of having in DATE and DATE demanded and received a \u201c refund \u201d of about ORG CARDINAL for financial transactions carried out by ORG , and for having introduced , DATE , L. as a fictitious intermediary in order to carry out certain financial transactions of ORG , thus , creating a fictitious claim for commission , causing damage of about ATS CARDINAL . Detailed information as to the underlying facts was given with regard to both charges . The indictment was served on the applicant on DATE .","On DATE the investigating judge , upon the request of ORG on DATE , discontinued the criminal proceedings against the applicant inter alia as regards point a ) of the information concerning \u201c excessive fees for transactions with the GPE \u201d ( see above , the information of CARDINAL DATE ) .","On DATE the applicant repeated his request that the green folder be made available to him . Again ORG took no decision .","On DATE the applicant filed a motion for the hearing of CARDINAL witnesses and for access to CARDINAL related criminal court files .","On DATE the trial started before ORG sitting as a court with lay assessors ( ORG ) . When the co - accused , PERSON , was heard , the presiding judge ruled that the applicant was not allowed to be present . Neither the applicant nor his counsel contested this measure . Defence counsel was present during the interrogation . The applicant was re - admitted to the court room as soon as the questioning of PERSON was finished and the presiding judge gave him a summary of PERSON \u2019s statements . At that stage , neither the applicant nor his counsel asked for further information or complained that the summary of PERSON \u2019s statements was insufficient . The former director of ORG , PERSON , was heard as a witness in the presence of the applicant and the defence questioned him in some detail .","On CARDINAL , DATE , DATE , DATE and CARDINAL DATE further hearings were held and numerous witnesses were heard .","It is in dispute between the parties when the green folder was made available to the defence . The Government submit that it was available as of DATE of the trial , whereas the applicant submits that he only received copies of parts of it on CARDINAL DATE , i.e. on DATE of the trial .","On DATE , the last hearing day , the applicant \u2019s counsel filed a further application for the hearing of witnesses . According to the minutes , he also requested that documents from the green folder be read out and - in case it was disputed that PERSON was the author of those documents - to hear PERSON and to appoint a handwriting expert . At the close of the hearing the presiding judge dismissed all outstanding requests for the taking of further evidence .","On DATE the court gave judgment , convicting the applicant of a breach of trust within the meaning of section CARDINAL of LAW , and sentencing him to DATE imprisonment for having demanded and received a \u201c refund \u201d of about ORG CARDINAL for financial transactions carried out by ORG . He was also convicted of having introduced PERSON as a fictitious intermediary in order to carry out certain financial transactions of ORG , thus creating a fictitious claim for commission and causing damage of about ATS CARDINAL . It found that , in both cases , he had not transferred the commission to ORG and that he had abused his position as the financial director of ORG , causing it financial damage . The court recalled that the case - law on the question of whether the acceptance of commission by trustees fell within the scope of CARDINAL of LAW had been contradictory for some time , but had been settled by ORG judgment of CARDINAL DATE in another case . According to that judgment , LAW was applicable to the applicant \u2019s case .","On DATE the applicant filed a plea of nullity and an appeal ( Nichtigkeitsbeschwerde und Berufung ) . He complained about the refusal to hear several witnesses he had called for , and the fact that he had not had access to the green folder before the trial hearings . Thus he had not been able to prepare his defence properly . He further noted that he had not been present when his co - accused had been heard . He alleged that he had been insufficiently informed about the statements made by the co - accused afterwards . Furthermore , he criticised the evaluation of evidence . As to the facts concerning ORG , he alleged that his conviction violated the principle of ne bis in idem because the investigating judge had ordered the criminal proceedings to be discontinued in this respect on DATE . Finally , he complained that the court had erred in law when applying section QUANTITY of LAW to his case . He argued that it was LAW which was pertinent to the offence concerning the acceptance of advantages by trustees ( Geschenkannahme durch Machthaber ) . As this section had entered into force after he had committed the acts in issue , he could not be punished at all .","On DATE the Attorney - General ( ORG ) filed CARDINAL pages of observations ( PERSON ) on the applicant \u2019s plea of nullity and his appeal .","On DATE the applicant was notified that the hearing before ORG would take place on DATE .","On DATE the applicant , who was at that stage still represented by the lawyer who had filed his plea of nullity and appeal , received the Attorney - General \u2019s observations and was informed that he could comment on them within a delay of DATE . He sent his CARDINAL - page reply by mail on DATE , which reached ORG DATE . He did not request an adjournment of the hearing .","On DATE the hearing took place and ORG confirmed ORG judgment .","As to the applicant \u2019s complaint that he had not been adequately informed about the statement of his co - accused L. , who had been heard in his absence , ORG noted that the presiding judge had given the necessary information by way of a summary of the statements . It would have been open to defence counsel to challenge the applicant \u2019s exclusion from PERSON \u2019s hearing and to complain about the alleged insufficiency of the summary of L \u2019s evidence , in order to obtain an interim decision from the court in this respect .","Further , ORG found that the court of first instance had justifiably refused to hear certain witnesses as it had in any case considered that the facts to be proved by those witnesses had already been established . Thus , the refusal did not cause any prejudice to the applicant .","As to the green folder , it noted that the applicant could have applied for the further questioning of PERSON after having obtained the folder , but that he failed to make such an application and had therefore not fulfilled the conditions for a plea of nullity in this respect .","ORG found that the applicant \u2019s further submissions constituted an inadmissible attempt to challenge ORG assessment of the evidence , which was duly reasoned and free from contradiction .","As to section CARDINAL of LAW , ORG confirmed that it was applicable to the applicant \u2019s case . Finally , it found that the facts described in the investigating judge \u2019s order of DATE , namely \u201c excessive fees for transactions with the ORG \u201d were not identical to those facts underlying the conviction , namely the receipt of refunds by the applicant . Therefore , the conviction did not violate the principle of ne bis in idem ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93410","languageisocode":"ENG","respondent":"ALB","branch":"CHAMBER","date":2009,"docname":"CASE OF GRORI v. ALBANIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 34;Non-pecuniary damage - award","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and is currently serving sentences of life imprisonment and CARDINAL years\u2019 imprisonment in ORG ( GPE ) .","On DATE the NORP authorities issued an arrest warrant in respect of the applicant , charging him with the premeditated homicide of an NORP national in GPE , GPE .","On DATE the applicant was sentenced in absentia to life imprisonment by ORG on a count of murder and to DATE imprisonment on a count of illegal possession of firearms .","On DATE the NORP authorities issued a second arrest warrant concerning the applicant which related to a new charge against him , namely participation in a criminal organisation and international narcotics trafficking . From the documents in the file it transpires that during the period of the proceedings before the NORP courts the applicant was carrying on a lawful business and resided in GPE .","On DATE ORG transmitted to ORG the CARDINAL arrest warrants mentioned above . On DATE the Chief of ORG ordered that \u201c the arrest warrants be immediately enforced \u201d .","On DATE ORG sent a fax to the NORP authorities seeking the initiation of criminal proceedings against the applicant for crimes committed on NORP territory .","On DATE the applicant was arrested in GPE on the strength of the arrest warrant issued on DATE by the investigating judge at ORG . The charge related to the applicant \u2019s involvement in a criminal organisation and international drug trafficking .","On CARDINAL DATE the applicant was remanded in detention for DATE .","On DATE ORG , ( \u201c the ORG \u201d ) , dismissed an appeal by the applicant against the grounds of his arrest . On DATE , the prosecutor informed the applicant about the charges against him , namely participation in a criminal organisation and international narcotics trafficking .","On CARDINAL DATE ORG upheld the prosecutor \u2019s application and ordered the applicant \u2019s detention in prison for an undetermined period . On DATE ORG upheld the decision .","NORP In DATE and DATE ORG repeatedly requested the NORP authorities to transmit the evidence that grounded the charges against the applicant . In DATE the request was also repeated by the NORP Minister of Justice .","On DATE ORG instituted criminal proceedings in ORG , charging the applicant with international narcotics trafficking ( hereinafter \u201c the criminal proceedings \u201d ) .","On DATE ORG found the applicant guilty of establishing a criminal organisation and international narcotics trafficking and sentenced him to DATE imprisonment . According to the applicant , the conviction related to a new charge of which he had never been informed . On DATE ORG , ( \u201c the Court of Appeal \u201d ) , upheld ORG judgment but changed the applicant \u2019s sentence to CARDINAL years\u2019 imprisonment . The applicant appealed to ORG . On DATE ORG changed the qualification of one of the criminal offences of which the applicant had been convicted . It upheld ORG judgment and changed the applicant \u2019s sentence to DATE imprisonment . A constitutional complaint by the applicant to ORG against the above - mentioned judgments is still pending .","On DATE , while the applicant was in detention on remand on the charges of participation in a criminal organisation and international narcotics trafficking ( see paragraph CARDINAL above ) , the GPE public prosecutor \u2019s office asked ORG to request the NORP authorities to validate in GPE the sentence imposed on the applicant by ORG on DATE , which had become final on DATE .","On DATE the NORP ORG , among other things , informed the GPE public prosecutor \u2019s office that the NORP authorities could not seek the validation and enforcement in GPE of a criminal judgment delivered by the NORP courts , in view of the fact that neither country was party to any international agreement on the matter . On DATE the NORP ORG transmitted the above - mentioned judgment , for information purposes , to ORG in GPE .","On DATE ORG in GPE , in a letter with the misleading heading \u201c Transfer of an NORP national currently detained in GPE \u201d , informed ORG of the \u201c request for extradition \u201d by ORG concerning the applicant , who , according to the ORG \u2019s letter , was \u201c serving a sentence in GPE \u201d .","On DATE ORG and GPE signed an agreement for the transfer of sentenced persons , which was ratified by the respective parliaments in DATE and DATE .","On DATE the NORP ORG , under LAW ( \u201c the ORG \u201d ) , requested ORG to institute proceedings for the validation and enforcement in GPE of the judgment concerning the applicant delivered by the NORP court .","On CARDINAL DATE ORG , in a single - judge panel , ordered the applicant \u2019s detention pending the proceedings for the validation and enforcement in GPE of ORG judgment of DATE . The applicant was served with the decision while he was in detention in connection with the criminal proceedings referred to above ( see paragraphs CARDINAL above ) .","On DATE , under LAW ORG , ORG initiated proceedings before ORG for the validation and enforcement in GPE of the judgment delivered by ORG ( hereinafter \u201c the validation and enforcement proceedings \u201d ) .","According to the applicant \u2019s submissions to ORG in DATE , LAW ORG required , inter alia , his consent for the validation and enforcement in GPE of ORG judgment , which consent he decided not to give ( see paragraph CARDINAL below ) .","On DATE ORG adopted amendments to the provisions of LAW , which , inter alia , repealed the requirement of the detainee \u2019s consent provided for in point ( e ) of LAW ORG ( see paragraph CARDINAL below ) .","On DATE the ORG filed further observations with ORG , pointing out , among other things :","\u201c ... in spite of the fact that the consent of the sentenced person is required by LAW ORG for the validity in GPE of a sentence imposed by a foreign authority , this should be interpreted only in circumstances involving the transfer of sentenced persons and not in such a manner as to hinder the course of justice . Moreover , ORG , by PERSON no . CARDINAL of DATE , abrogated point ( e ) of LAW ORG ... \u201d","On DATE ORG rejected ORG request as not being in compliance with the requirement in LAW , point ( e ) , of the ORG . The court held :","\u201c ... the requirement laid down in LAW , point ( e ) , of the ORG is necessary for the validity and enforcement in GPE of a sentence imposed by a foreign authority in accordance with ORG and the provisions of domestic law . In accordance with the wording of the above - mentioned LAW , the consent of sentenced persons is required without any distinction between the circumstances of the transfer of detainees or the validity of the sentence imposed by a foreign court . Moreover , PERSON no . DATE of DATE , which abrogates point ( e ) of LAW , is not applicable in the present case since it has not come into force for the time being ... \u201d","On DATE ORG dismissed an appeal by ORG . The court upheld the reasoning set out in ORG judgment and held that PERSON no . DATE could not be applicable retroactively on the ground that it would have resulted in more severe provisions being applied to the applicant \u2019s detriment .","On an unspecified date in DATE ORG lodged an appeal with ORG ) against ORG judgment .","On DATE , in order to harmonise and amend the ORG practice ( p\u00ebr unifikimin dhe ndryshimin e praktik\u00ebs gjyq\u00ebsore ) , the President of ORG relinquished jurisdiction in favour of ORG Joint Benches .","On DATE ORG , ORG , quashed the judgments of ORG and ORG and remitted the case for fresh consideration to ORG . In its judgment , ORG interpreted provisions of the ORG relating to extradition , the transfer of sentenced persons and the validity and enforcement in GPE of sentences imposed by foreign courts , giving its definition from the standpoint of international law principles and inter - State cooperation . The court held that in circumstances where no ruling could be given on a specific issue because the relevant provisions were inadequate , a legal basis could be provided by international customs , namely the principle of good will and reciprocity , and treaties . In the present case , finding that the requirement laid down in LAW , point ( e ) , of the ORG was inadequate , it considered that LAW on ORG and LAW on ORG provided a sufficient basis for the validation and enforcement in GPE of ORG judgment .","The judgment stated , in so far as relevant , the following :","\u201c The transfer of sentenced persons has been regulated by LAW on ORG as ratified by ORG and published in ORG no . CARDINAL of DATE ( ... ) . LAW on ORG has been signed but not yet ratified by the ORG . As such , this LAW can not be considered a constituent part of the domestic legal corpus and is not directly applicable . However , its signature and the approval of the engaging provision according to which the ORG recognises and respects the generally recognised norms and principles of the international law , guide us to understand , interpret and justly apply the provisions of the ORG at issue .","( ... )","In the case of validity and enforcement of a foreign criminal judgment , the reference to and the solution of the case in accordance with point ( e ) of LAW ORG , at the material time , would be nonsense . Were the court to regard the consent of the sentenced person as essential , that would lead to an ad literam interpretation of the provision , as applied by ORG and ORG . However , the interpretation of a legal provision is rather complex . In the event the ad literam interpretation leads to an absurdity [ nonsense ] , a logical and systemic interpretation prevails . According to this interpretation , the said provision shall be interpreted in a reasonable manner . This means that the notion of \u201c the consent of the sentenced person \u201d can not be broadly interpreted . It should be narrowly interpreted so as not to lead to an absurdity , which would be the case , were the appellant to give his consent to serve the criminal sentence in his country . As it transpires from the acts , the appellant was tried in absentia since he absconded from the NORP justice .","( ... )","The consent of a person sentenced by a foreign court is a sine qua non for the determination of the question whether the sentence is served in the sentencing ORG or in the detainee \u2019s country of origin , that is in the prisons of the country of which he is a citizen [ emphasis added in the original text ] .","( ... )","This decision of ORG , ORG , finally resolves the problem , holding that the lack of consent by the sentenced person for the validation of a foreign criminal judgment is not an obstacle for the NORP courts to proceed with such a validation and recognition [ emphasis added in the original text ] .","During the examination of the case , the appellant \u2019s counsel stated that there is no bilateral agreement between GPE and GPE as regards the validity and enforcement of criminal judgments . They maintained that such an act would impinge upon the sovereignty of the NORP state , which is exercised by the ORG through the ratification of an international or bilateral agreement . This claim is unfounded . The NORP ORG manifested its sovereign will through the enactment of the ORG , whose provisions at issue should be applied in accordance with their meaning and the unified interpretation of ORG as outlined above .","It must be underlined that in the absence of signed and ratified instruments , the generally recognised norms of the international law may apply in accordance with the principle of good will and reciprocity . Pursuant to the ORG , ORG is responsible for jurisdictional relations with foreign authorities , including the NORP .","According to LAW , it is within the discretion of the said ORG as a manifestation of the political will of ORG , to request the validation before a court of a foreign judgment . The ORG shall not examine this kind of discretion . It shall only examine whether the request has been made by the competent authority in accordance with the law and whether the documentation is complete . \u201d","In the retrial proceedings before ORG , the applicant claimed that there had been no request by the NORP authorities for the validation of the NORP criminal judgment against him , having also regard to the NORP authorities\u2019 letter of CARDINAL March CARDINAL ( see paragraph CARDINAL above ) . Furthermore , he added that there was no bilateral agreement between the CARDINAL States for such a validation to take effect . The applicant also relied on the fact that he had not given his consent for the validation .","On DATE ORG , sitting as a bench of CARDINAL judges , relied entirely on the judgment of ORG of DATE . It held that the sentence imposed by ORG was compatible with the provisions of ORG as amended by PERSON no . CARDINAL of DATE . It ruled that the applicant should serve cumulative sentence of life imprisonment in GPE on a count of murder and a count of illegal possession of firearms .","The presiding judge , ORG , expressed a partly dissenting opinion on the above - mentioned judgment , reminding the court that the relevant statutory provisions laid down a maximum penalty of CARDINAL years\u2019 imprisonment instead of life imprisonment as imposed in the applicant \u2019s case .","According to the applicant \u2019s submissions in the present proceedings before the ORG , ORG applied those parts of PERSON no . CARDINAL of DATE that contributed to the aggravation of his situation . Moreover , in accordance with LAW ORG as amended by the above - mentioned PERSON , the court should have sat in a single - judge formation in his case . Furthermore , he maintained that , having regard also to Judge PERSON \u2019s dissenting opinion , the composition of the bench could have influenced the outcome of the proceedings .","On an unspecified date in DATE the applicant filed an appeal , invoking the same grounds as he did before ORG .","On DATE ORG dismissed the appeal and upheld ORG judgment , fully relying on ORG judgment of DATE .","The applicant noted that at the last hearing of the appeal proceedings , Judge PERSON . PERSON , who had presided over the trial until TIME , had been substituted by Judge PERSON without a formal decision .","The applicant produced to ORG judgments which have the same text but were delivered by CARDINAL different benches : the first by a bench presided over by PERSON . PERSON and the second by another bench presided over by PERSON","On DATE the applicant lodged an appeal with ORG . He relied on almost the same grounds of appeal as he did before ORG and ORG . Moreover , the applicant challenged the application of the generally recognised norms of international law as inadequate and imprecise .","On DATE ORG dismissed the applicant \u2019s appeal as the grounds of appeal fell outside the scope of Articles CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG ( see paragraphs CARDINAL and CARDINAL below ) .","In DATE the applicant appealed to ORG challenging ORG judgments of DATE and DATE . He alleged that the proceedings had been unfair in various respects . In particular , he complained that the criminal proceedings had been in breach of the ORG \u2019s requirements as laid down in LAW ( composition of courts ) , CARDINAL ( sentenced ORG consent ) and CARDINAL ( for the validation and enforcement in GPE of a sentence imposed by a foreign authority , a request addressed by the foreign authority and a valid international and\/or bilateral agreement had to be in force in both countries ) . The applicant maintained that no request for the validation of the sentence had been addressed by the NORP authorities to the NORP Minister of ORG , nor had there been any international convention in force between the countries at the material time .","On DATE ORG dismissed the applicant \u2019s appeal . It found ORG judgments of DATE and CARDINAL DATE constitutional . Moreover , it held that even though the composition of ORG bench of CARDINAL DATE was in breach of the law , it did not render the process unconstitutional as a whole . As regards the existence of CARDINAL judgments delivered by different benches of ORG on DATE , ORG noted that there was CARDINAL judgment in the case file , which corresponded to the bench that had decided the case .","The judgment stated , in so far as relevant , as follows :","\u201c ORG considers that the arguments raised in ORG , ORG , judgment [ of DATE ] are not in breach of the LAW or [ international ] conventions . The mutual recognition [ validation ] of court judgments serves to strengthen legal cooperation between GPE and the achievement of certain objectives in relation to the freedom of liberty , security and justice . The principle of reciprocity presupposes the application of mutual and legal instruments in inter - state relations . In international law , reciprocity is defined as the right to equality and mutual respect amongst countries . International criminal doctrine and case - law have confirmed that cooperation amongst countries can occur even in the absence of bilateral treaties , on the basis of the principle of reciprocity .","As a rule , the principle of reciprocity applies through international instruments such as treaties and agreements , which envisage mutual rights and obligations . But , in exceptional cases , in the absence of such agreements , the GPE are not precluded from directly applying the principle of reciprocity , the generally recognised norms of international law and good will . Their application is in the interest of strengthening the States\u2019 cooperation in the fight against organised crime and criminality .","ORG notes that the judgment of ORG , ORG as regards ORG CARDINAL and CARDINAL is not unconstitutional . They [ ORG ] rightly concluded that there was no conflict between those provisions and the international conventions\u2019 provisions . The domestic provisions should apply in accordance with the interpretation made by the [ ORG ] Joint Benches .","( ... ) It may be understood ( ... ) that the request for the validation of a foreign court judgment may be made even in the absence of an agreement , on the basis of good will , generally recognised norms and the principle of reciprocity . \u201d","On DATE , CARDINAL DATE and DATE , in view of the deterioration in the applicant \u2019s health , his representative and his father requested ORG and the prison authorities to allow him to be examined by appropriate doctors .","From DATE to CARDINAL DATE the applicant underwent in - patient treatment and examinations at ORG . During that period an initial magnetic resonance imaging ( MRI ) scan was carried out . He was diagnosed as suffering from multiple sclerosis ( GPE ) . The doctors reported that , even when the disease was quickly detected and treated , it was capable of causing shock , organ damage , permanent disability or death .","On DATE a second MRI scan was carried out .","On DATE the applicant \u2019s representative informed the ORG that the applicant \u2019s state of health had deteriorated and that he consequently needed further treatment and an essential medical examination by specialist neurologists . He filed CARDINAL reports regarding the applicant \u2019s state of health , which the doctors reported had worsened .","On DATE ORG requested authorisation from the GPE prosecutor \u2019s office for medical examinations at ORG in respect of the applicant and CARDINAL other inmates .","On an unspecified date in DATE the GPE prosecutor \u2019s office gave its approval in relation to the other CARDINAL prisoners and rejected the request concerning the applicant , stating that it was not competent to rule on his transfer from prison . It designated ORG as the competent authority .","On DATE ORG reiterated its request to ORG concerning the applicant \u2019s medical treatment , but received no response . On DATE the prison requested ORG to designate the competent authority to decide on the applicant \u2019s transfer for medical purposes .","On DATE the applicant initiated criminal proceedings against the GPE prosecutor \u2019s office , complaining that its neglect in ensuring his medical care had contributed to the worsening of his health , which constituted discrimination vis - \u00e0 - vis those prisoners who had been allowed to have medical treatment .","On DATE the applicant was transferred to FAC , a high - security prison located QUANTITY from FAC and detained under a high - security regime .","From DATE the applicant was refused the opportunity to meet his lawyers and have any other contact with them .","On DATE , following repeated requests by the doctors of FAC , the applicant was sent to ORG for a medical examination . Following consultations among the doctors of that hospital and ORG on DATE , the applicant \u2019s diagnosis was confirmed and they concluded that it was imperative for his health that he be treated with interferon - beta .","In a letter of CARDINAL DATE the applicant \u2019s representative informed the Registry that from DATE the prison authorities had suspended the applicant \u2019s medical treatment , contrary to the ORG opinions , and that he was treated with vitamins and anti - depressant drugs .","In a letter of CARDINAL DATE the applicant \u2019s representative informed ORG that without a court decision , the applicant had been placed under the special prison regime provided for in section CARDINAL of LAW , which derogated from the conditions for ordinary detention laid down in the LAW .","On DATE , following persistent requests by the applicant , ORG assessed him and reported on the medical treatment he was being given , finding that he was being treated mainly with drugs prescribed to cure rheumatism .","In DATE the applicant initiated several sets of criminal proceedings against the Head of ORG , complaining of negligence in the provision of medical care to him . On unspecified dates ORG dismissed his applications , and appeals by the applicant against the prosecutor \u2019s decisions are still pending before the domestic courts .","DATE the doctors confirmed that the applicant suffered from multiple sclerosis . They reported deterioration in the applicant \u2019s health , caused by the total lack of medical treatment for DATE . Fearing for his life , they strictly recommended that the applicant immediately receive adequate medical treatment .","NORP In response to the applicant \u2019s request of DATE , the President of the ORG decided , on DATE , to indicate to ORG an interim measure under LAW , stating that \u201c the applicant should immediately be transferred to a civilian hospital in order that a medical examination of his condition can be carried out and that he can be given the treatment appropriate to his condition . \u201d The President also decided to request the ORG to immediately inform the ORG of any decision to retransfer the applicant to ORG , attaching any relevant medical certificate supporting his retransfer .","In TIME DATE , given that it was the first time that an interim measure was being applied in respect of GPE , GPE , ( \u201c the Registrar \u201d ) , spoke to ORG over the telephone and officially notified the content of the interim measure and the importance of complying therewith . ORG was informed that a copy of the notification of the indication under LAW would be subsequently sent by facsimile .","Several attempts to send the notification by facsimile were unsuccessful in TIME DATE . On TIME DATE , having regard to the recurring problem with the facsimile , a scanned copy of the notification was sent by electronic mail to ORG who acknowledged receipt thereof ( also via electronic mail ) . On TIME , the Government \u2019s Agent informed the ORG in a telephone conversation that she had urgently contacted ORG , ORG , ORG and other responsible state institutions in order to comply with the ORG \u2019s interim measure . In their written submissions , the ORG confirmed the above statement .","From DATE the Government did not provide any information concerning any measures taken to comply with the ORG \u2019s interim measure of DATE .","DATE . On DATE the applicant informed the ORG that he had not yet been transferred .","On DATE the applicant \u2019s letter was forwarded to the Government , drawing their attention to the fact that a failure to comply with an interim measure could give rise to a violation of LAW .","On DATE , following an order of ORG , the applicant was transferred to ORG with a view to being taken to hospital for the conduct of medical examinations . On DATE the applicant refused to be transferred to hospital and started a hunger strike . He alleged that the authorities had to provide him with the appropriate treatment instead of conducting medical examinations .","On DATE , the Registrar made several calls to the applicant \u2019s representative and to ORG . The Registrar urged the applicant to end the hunger strike and to comply with the ORG \u2019s interim measure about his transfer to hospital , where a medical examination of his situation would be conducted . The PERSON also called upon the authorities to comply with the ORG \u2019s interim measure and to refrain from any use of force , as alleged by the applicant .","On DATE , the applicant was transferred to the neurology ward of ORG ( PERSON \u2013 \u201c the ORG \u201d ) where he had specialised medical examination .","On DATE , following a letter of the ORG that the applicant \u2019s presence was no longer required , the applicant was transferred to ORG .","On DATE the Government provided the ORG with a copy of the applicant \u2019s medical file following the medical examinations of CARDINAL DATE . A ORG panel had concluded that the applicant suffered from multiple sclerosis . The ORG panel recommended that the applicant be treated with interferon beta with a view to stabilising his health and preventing progression of the disease . The doctors were unable to accurately describe the progression of the disease over DATE , as he had not been under medical care . They expressed the view that the applicant \u2019s health did not present any urgency and , under these circumstances , patients were usually treated as out - patients without any need to be hospitalised .","On DATE the Government confirmed that the applicant \u2019s treatment with interferon beta had started on DATE in accordance with the ORG panel \u2019s conclusions . The treatment was being administered DATE and it would appear that the applicant \u2019s health has been stable ever since .","DATE . On DATE the President of the ORG decided to refuse the applicant \u2019s request for the application of a renewed Rule CARDINAL indication . The Government , however , were requested \u201c to inform the ORG on a regular basis about the applicant \u2019s state of health and to provide medical evidence of this , bearing in mind that the applicant \u2019s health conditions may necessitate specialised assistance while in prison . \u201d","On DATE the Government informed the ORG that the applicant has been regularly provided with interferon beta and other medicines appropriate to his health .","LAW QUANTITY of the LAW provides that the law constitutes the basis and delimits the boundaries of the activities of the ORG and that the LAW is the highest law in GPE .","DATE LAW provides that GPE applies international law that is binding upon it .","The Code of Criminal Procedure , in its relevant parts , provides as follows :","Article CARDINAL \u00a7 CARDINAL , point ( \u00e7 ) , of the ORG , as amended by LAW no . DATE of DATE ( in force from DATE ) , provides that \u201c ... district courts shall sit in a single - judge formation in cases concerning cooperation with foreign authorities ... \u201d .","Article CARDINAL provides that an appeal to ORG should be made when : ( a ) the criminal law has not been respected or has been applied erroneously ; ( b ) there have been breaches resulting in the nullity of the court \u2019s judgment in accordance with LAW ORG ; ( c ) there have been procedural violations that have affected the adoption of the decision .","Article CARDINAL \u00a7 CARDINAL provides that a judgment of retrial proceedings may be appealed to ORG only in so far as it does not relate to any grounds that were previously decided upon by ORG .","Article CARDINAL , on the validity in GPE of foreign sentences , provides that ORG , when informed of a sentence imposed by a foreign authority concerning NORP citizens , must send the prosecutor \u2019s office a copy of the judgment and any relevant documents . ORG requests the validation of a foreign sentence when it considers that in accordance with an international convention , the decision in question must be executed or any other effects of it must be recognised in GPE .","Article CARDINAL of the Code of Criminal Procedure , before being amended by Law no . CARDINAL of DATE , provided that a foreign court \u2019s sentence could not be recognised and enforced in GPE in any of the following circumstances : ( a ) the sentence had not become final according to the laws of the ORG in which it had been imposed ; ( b ) the sentence contained provisions which ran counter to the principles of the rule of law as applied by ORG ; ( c ) the sentence had not been imposed by an independent and impartial court or the defendant had not been summoned to appear before the trial or had not been granted the right to be questioned in a language that he understood and to be assisted by a defence lawyer ; ( \u00e7 ) there were justified reasons to believe that the proceedings had been influenced by considerations regarding race , religion , sex , language or political beliefs ; ( d ) the act for which the sentence was imposed was not provided for as a criminal offence in NORP law ; ( dh ) a final decision had been delivered or criminal proceedings were in progress in GPE in respect of the same act and against the same person ; or ( e ) the sentenced person or his representative had not granted his consent .","Section CARDINAL of Law no . DATE of DATE ( in force from DATE ) provides : \u201c LAW , point ( e ) , of the ORG shall be abrogated . \u201d","Article CARDINAL of LAW , as in force at the time when the offence was committed in DATE , provided that a person convicted of premeditated homicide should be sentenced to a term of CARDINAL to DATE of imprisonment and , where there were aggravating circumstances , to life imprisonment or death .","Taking into consideration the revival of blood feuds in the north and the north - east region of GPE , Law no . DATE of DATE , which came into force on DATE , amended inter alia Article CARDINAL of LAW by adding a new paragraph that regulates revenge killings in order to stop the total destruction of families . The new provision , in force at the time the NORP sentence was converted by the NORP courts , reads as follows :","\u201c CARDINAL . A person convicted of premeditated homicide shall be sentenced to a term of CARDINAL to DATE of imprisonment .","A person convicted of premeditated homicide because of an interest or \/ and vendetta shall be sentenced to a term of DATE and life imprisonment . \u201d","Section CARDINAL of LAW , as in force at the material time , provided that , in the absence of medical treatment in the prison \u2019s health unit and when necessary , the prisoner may be transferred to a prison hospital or other medical institution , upon the order of the prosecutor . The prisoner has the right to appeal within DATE to the district court against the prosecutor \u2019s refusal [ to transfer him to a hospital ] .","The Convention entered into force in respect of GPE on DATE . It was signed by GPE on DATE and for the time being has not been ratified . Thus , it was not in force in respect of either country on DATE , when the applicant was convicted by ORG . Its relevant provisions read as follows :","\u201c CARDINAL . A Contracting State shall be competent in the cases and under the conditions provided for in this Convention to enforce a sanction imposed in another Contracting State which is enforceable in the latter ORG .","This competence can only be exercised following a request by the other ORG . \u201d","The objectives of the DATE LAW , including its LAW of DATE , are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons . The LAW to LAW states that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society . Its provisions , in so far as relevant , read as follows :","DATE Definitions","\u201c For the purposes of this Convention :","( ... )","c. \u201c sentencing ORG \u201d means the ORG in which the sentence was imposed on the person who may be , or has been , transferred ;","d. \u201c administering ORG \u201d means the ORG to which the sentenced person may be , or has been , transferred in order to serve his sentence \u201d .","LAW for transfer","\u201c CARDINAL . A sentenced person may be transferred under this Convention only on the following conditions :","a. if that person is a national of the administering ORG ;","( ... ) \u201d","The Transfer Convention entered into force in respect of GPE on DATE and in respect of GPE on DATE . LAW has not been ratified to date by either country .","The ORG visited GPE in DATE , DATE and DATE . In DATE , the delegation inspected , inter alia , ORG .","In this report ( ORG ( DATE ) CARDINAL ) the ORG found that the health - care facilities , \u201c were of a very poor quality in all the establishments visited . For instance , a piece of equipment as basic as weighing scales was absent everywhere . Needless to say , such a state of affairs also hampers the adequate oversight of the nutrition provided in the establishment , as well as the supervision of hunger strikes which occurred from time to time . It is also of concern that no running water was available in the dentist \u2019s surgery at FAC . Further , both at FAC and FAC . CARDINAL , the state of cleanliness and hygiene in the ORG consultation rooms left much to be desired . \u201d","The ORG further noted \u201c a number of serious shortcomings as regards the medical screening upon admission in the prisons visited ( in particular , examinations not being carried out systematically or only in a very perfunctory manner ) . \u201d It also expressed its concern \u201c that newly arrived remand prisoners were not systematically screened for transmissible diseases ( such as hepatitis B and C , HIV , syphilis and tuberculosis ) , and that no information was being provided to inmates regarding the prevention of such diseases \u201d .","The ORG noted that at Prisons nos . CARDINAL and CARDINAL a number of medical files were not available . When \u201c found \u201d , those files contained nothing other than the names of the prisoners concerned .","As regards the treatment of patients with serious medical conditions , the ORG observed that a number of individual cases illustrated alarming shortcomings in some of the establishments . The relevant excerpts state :","\u201c At FAC and FAC , the delegation met CARDINAL prisoners who , due to their health condition ( severe psychosis and an advanced stage of cancer , respectively ) , were in urgent need of specialised treatment in a hospital setting . However , no initiatives had been taken to transfer the prisoners concerned to ORG . During the end - of - visit talks , the delegation requested the NORP authorities to take urgent measures in respect of the CARDINAL above - mentioned cases . In their letter of DATE , the NORP authorities confirmed that both prisoners had been transferred to ORG .","At FAC , the delegation met a prisoner suffering from diabetes who was not receiving a special diet . The ORG must stress that such a state of affairs amounts to a denial of treatment . Further , in the case of another prisoner at ORG , who was suffering from tuberculosis , the delegation observed that there had been a considerable delay in transferring the prisoner concerned to ORG . Further , no protective measures had been taken during his transfers to the hospital , in order to avoid other prisoners or members of staff becoming infected with the disease . \u201d","The ORG recommended that the NORP authorities review the provisions of health care in the establishments visited .","In this report ( ORG ( DATE ) DATE ) the ORG noted the domestic authorities\u2019 failure to implement their recommendations , particularly as regards the medical examinations on admission to pre - trial detention facilities .","The ORG noted that \u201c no improvements had been made as regards the general provision of health care in either establishment visited , notwithstanding various recommendations made by the ORG in the reports on DATE visits \u201d .","As regards one of the pre - trial detention facilities that the ORG visited , it noted that \u201c conditions in the health - care facilities were appalling . The delegation received many complaints from inmates about delays in having access to the doctor and the quality of the health care provided ; the delegation observed itself , on the spot , the case of CARDINAL inmate in need of urgent medical care who had been left in a state of total neglect \u201d .","NORP The ORG raised the issue of long delays which had been observed in transferring inmates who were in urgent need of hospitalisation to a hospital . \u201c The DATE visit demonstrated that this problem had not yet been resolved . The delegation was informed that general hospitals were reluctant to admit detainees from pre - trial detention facilities , due to security considerations , while transfers to ORG in GPE were reportedly difficult , because ORG falls under the authority of ORG \u201d .","In this report ( ORG ( DATE ) CARDINAL ) the ORG found that the provision of general health care appeared on the whole to be adequate in most of the establishments visited , despite situations which gave rise to particular concern . It also noted some improvements as regards medical examinations on admission , even though that \u201c remains a particularly problematic area in the NORP prison system \u201d .","The ORG found that there had been shortcomings in the provision of specialist care , notably the provision of dental care and psychiatric care ."],"violated_articles":["3","34","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-85085","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2008,"docname":"CASE OF RUMYANA IVANOVA v. BULGARIA","importance":3,"conclusion":"No violation of Art. 6-1+6-3-d;No violation of Art. 10","judges":"Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant is a journalist by profession . At the relevant time she was employed as a reporter at TIME , one of the leading national DATE newspapers . She continues to work there at present .","Following a serious banking crisis in DATE , during which a number of banks were sunk into insolvency by , inter alia , non - performing and unsecured loans extended to corporate and individual clients , the NORP legislature enacted a comprehensive package of bank reform legislation ( see ORG AD v. GPE , no . QUANTITY , \u00a7 CARDINAL , DATE ) . Part of that package was ORG ( \u201c ORG \u0437\u0430 \u0438\u043d\u0444\u043e\u0440\u043c\u0430\u0446\u0438\u044f \u0437\u0430 \u043d\u0435\u043e\u0431\u0441\u043b\u0443\u0436\u0432\u0430\u043d\u0438 \u043a\u0440\u0435\u0434\u0438\u0442\u0438 \u201d ) , which stipulated that ORG should compile a list of all bank borrowers with loans that had been due for DATE , send this list to ORG , ORG , the tax and customs authorities , and ORG , and publish it in a special bulletin . The persons on this list were colloquially referred to as \u201c credit millionaires \u201d .","On DATE the head of the banking supervision department of ORG presented the list to the chairman of ORG .","DATE Mr PERSON was a Member of ORG elected on the ticket of the political party ORG . He was deputy chairman of ORG and a member of ORG of ORG . In DATE he became involved with the newly formed coalition ORG , which won the parliamentary elections on DATE . During DATE Mr PERSON was a member of and shareholder in a number of commercial companies . DATE his name was mentioned in at least twentyfour reports in national newspapers .","On DATE ORG , a leading national DATE newspaper , published an article under the headline \u2018 Credit millionaires disclosed\u2019 and the caption \u2018 Several incumbent and former members of ORG appear on the list\u2019 . In the article the newspaper reported on the handover of the list of \u201c credit millionaires \u201d to the chairman of ORG DATE and mentioned , inter alia , that several companies connected with the name of Mr PERSON were on the list . According to the article , the company Maxcom Holding owed MONEY old NORP levs ( ORG ) to CARDINAL bank , the company ORG Maxcom owed ORG MONEY to another bank , and the company Maxcom OOD was indebted in an amount of ORG MONEY .","On DATE Mr PERSON issued civil libel proceedings against the publisher of ORG . He said that the allegation made in the article that he was a \u201c credit millionaire \u201d was not true . He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of ORG . He sought ORG CARDINAL in nonpecuniary damages .","In a judgment of CARDINAL DATE ORG dismissed the action . It held that Mr PERSON allegations had not been supported by any evidence and were therefore unsubstantiated . Neither party had attended either of the hearings in the case . Mr PERSON had not sought leave to adduce any evidence . He had therefore not proven his claim that he had suffered any damage on account of the impugned article . Apparently Mr PERSON did not appeal and the judgment entered into force on DATE .","On DATE the parliamentary group of ORG held a closeddoors meeting in ORG in order to discuss , inter alia , the candidates for the position of deputy Minister of Finance in charge of customs . For this reason the applicant , who at that time worked as a parliamentary reporter , went , together with other journalists , to the ORG lobby . There they met Members of ORG , who told them that Mr PERSON was being considered for the abovementioned position . CARDINAL of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr PERSON name featured on the list of \u201c credit millionaires \u201d . At that point the applicant called the editor of TIME and said that she would prepare an article on the topic . She also telephoned Mr N. , the press officer of the customs administration , asking him whether Mr PERSON name was on the list of \u201c credit millionaires \u201d . Mr N. replied that as far as he knew that was so , and referred the applicant to the Full list of credit millionaires , published by the ORG publishing house in DATE . It was stated in the preface of that publication that CARDINAL companies linked with Mr M. D. \u2013 FBK Maxcom and Maxcom OOD \u2013 were on that list . The applicant checked in an electronic law database and found that Mr PERSON had been a member ( first directly , and after DATE through another company ) of the company Vitaplant OOD , which was also among the debtor companies on the list . After unsuccessfully trying to contact Mr PERSON by telephone , she wrote an article about the story .","According to the applicant , in the meantime other journalists from TIME had contacted various institutions which could have had information on the matter ( ORG , ORG , ORG , ORG , ORG ) and all of them had confirmed that Mr PERSON featured on the list of \u201c credit millionaires \u201d .","The article , which appeared on page CARDINAL of DATE issue of TIME under the headline \u201c ORG under Concession ? \u201d and the applicant \u2019s byline , was worded as follows :","\u201c The King \u2019s men were intensely discussing whether to hire a Western company to run the customs administration , Members of ORG say . The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration . The proposal that Mr PERSON is tapped for the position has not yet been approved by the Prime Minister . PERSON was concerned about the fact that [ Mr M. NORP ] \u2019s name is on the list of credit millionaires , confided sources close to him . In the official document dated DATE and signed by the head of ORG [ department of ORG ] , PERSON , [ Mr PERSON ] appears as a debtor . CARDINAL of his companies \u2013 Maxcom Holding , FBK Maxcom and Maxcom OOD \u2013 , had debts totalling MONEY . The uncertainties about [ Mr M. NORP ] have brought the name of [ Mr PERSON ] on to the agenda . However , the idea was for him to have operational control over customs , while the concession is awarded to the Western company . \u201d","The article was accompanied by photographs of Mr PERSON and Mr E. NORP with their names in the captions .","DATE the applicant got in touch with Mr PERSON and was told that the statements in her article were not true .","After the first printed copies of the newspaper were circulated , PERSON PERSON called CARDINAL Hours\u2019 editor and said that he was not a shareholder in ORG , ORG , or Maxcom OOD . The editor then decided to amend the article in the subsequent printed copies of the newspaper . The new version , which featured solely the picture of Mr PERSON , but not that of Mr PERSON , read as follows :","\u201c The King \u2019s men were discussing whether to hire a Western company to run the customs administration , Members of ORG say . The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration . The proposal that Mr PERSON is tapped for the position has not yet been approved by the Prime Minister .","According to insiders , PERSON received reports that [ Mr M. D. ] is on the list of credit millionaires . In the official document dated DATE and signed by the head of ORG [ department of ORG ] , PERSON , [ Mr PERSON ] appears as a debtor .","Mr PERSON categorically denied this . He said \u2018 I am not a debtor , but a ORG .","According to former Members of ORG , the allegations that he was a credit millionaire were being spread by people who wanted to smear his name . Illwishers used the similarity between the names of [ Mr PERSON \u2019s companies and the names of those companies featuring on the list of credit millionaires . This was done to foil his candidacy for the position of deputy Minister of Finance . In DATE the name of [ Mr E. D. ] has been brought on to the agenda . However , the idea was for him to have operational control over customs , while the concession is awarded to the Western company . \u201d","The first version of the article was featured in CARDINAL copies of the newspaper , CARDINAL of which were sold . The second version was featured in CARDINAL copies , CARDINAL of which were sold .","DATE , on DATE , TIME ran an additional article including the response from Mr PERSON The article , which appeared on page CARDINAL , was under the caption \u2018 You are wrong\u2019 and its headline was \u2018 [ M. D. ] : I am not a credit millionaire!\u2019 . It read as follows :","\u201c In an article on page CARDINAL of issue CARDINAL of DATE , under the headline \u2018 Foreign Company To Run ORG under Concession?\u2019 , [ the applicant ] links my name to companies which feature on the list of credit millionaires .","This statement does not correspond to the truth .","I reiterate that I have never been a shareholder , member or manager in the companies Maxcom Holding , FBK Maxcom , or Maxcom OOD , nor can I be in any other way linked with debtor companies . Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation .","To my displeasure I notice that TIME , a newspaper which I respect , has joined in the foul attack .","In my opinion , the publication of unauthentic , unverified and incorrect information does no honour to your newspaper and offends its readers . \u201d","Alongside the article there was a photograph of Mr PERSON with his name in the caption .","Shortly after these events Mr NORP announced that he had withdrawn his candidacy for the post of deputy Minister of Finance .","On DATE Mr M.D. lodged a criminal complaint against the applicant with ORG . He alleged that the statements made in the article were not true . In particular , he had never been a shareholder , member , or manager of the companies mentioned in the article \u2013 Maxcom Holding , ORG Maxcom or Maxcom OOD \u2013 , nor did he appear as an individual on the list of \u201c credit millionaires \u201d . In his view , by writing the article containing the untrue statements the applicant had committed libel , contrary to ORG CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 \u00a7 CARDINAL ( CARDINAL ) and CARDINAL of LAW of DATE ( see paragraphs CARDINAL and CARDINAL below ) . He further alleged that he had suffered substantial nonpecuniary damage as a result of the applicant \u2019s act , and sought compensation in the amount of CARDINAL new NORP levs ( ORG ) . He declared that he would donate any award made by the court to a church .","On DATE the judgerapporteur at FAC sent a copy of the criminal complaint to the applicant , invited her to file a reply , and set the case down for trial .","NORP In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven . The article did not consist of her own statements ; she had simply relayed information coming from Members of ORG . This information had been verified through all available sources . The applicant had been certain that Mr PERSON had indeed been a \u201c credit millionaire \u201d , which was the actual vilifying circumstance , not the mere fact that he was involved in certain companies .","The trial took place on DATE , DATE , DATE , DATE and DATE . The ORG admitted in evidence a number of documents produced by the applicant and Mr PERSON , and questioned several witnesses , one of whom was PERSON , a journalist who had been in ORG on DATE ( see paragraph CARDINAL above ) . While initially giving leave to the applicant to adduce evidence relating to Mr M. D. \u2019s links with companies which had failed to repay bank loans , the court later revoked its order and refused to admit such evidence , holding that these matters could be elucidated through the evidence already gathered . The court also gave leave to the applicant to call one of the Members of ORG whom she had talked to on DATE . She tried to secure his presence , but failed to do so . She accordingly left it to the discretion of the court to subpoena him , but refused to name him . Her counsel said that even though the MPs who had spoken to the applicant had been named in PERSON testimony , that did not allow the unequivocal identification of this witness and hence precluded a request to summon him . The court held that , failing clear identification of the witness , it was impossible to subpoena him . It added that the defence had had ample opportunity to secure his presence , but had failed to do so .","In a judgment of DATE the ORG found the applicant guilty of having divulged a vilifying fact about another person in a publication , contrary to LAW and LAW ) and QUANTITY of LAW of DATE ( see paragraphs CARDINAL and CARDINAL below ) . The court applied LAW ( see paragraph DATE below ) and replaced the applicant \u2019s criminal liability with an administrative fine of BGN CARDINAL . The court further ordered the applicant to pay Mr M.D. BGN CARDINAL plus interest from DATE until settlement , as compensation for his injured reputation , and awarded him ORG CARDINAL in costs . The court described the facts set out in CARDINAL above , except the part concerning Mr M. NORP \u2019s indirect membership of ORG at the time when it had taken out bank loans which it had failed to repay , and held as follows :","\u201c ... The actus reus of the offence of defamation is characterised by the divulging of vilifying DATE and untrue \u2013 circumstances relating to a specific individual . The expression used by [ the applicant ] \u2013 \u2018 credit DATE is derived from the Information About NonPerforming Credits Act [ of DATE ] , on the basis of whose section CARDINAL the administration of the [ ORG ] has published a list of all debtors , persons who have outstanding credits . Therefore the expression \u2018 credit ORG has a negative connotation and presupposes intolerance and extremely negative public attitudes . These are people who have prospered financially due to credits from financial institutions which they have failed to repay . In this sense , from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest . The law bans these persons from holding certain official posts .","The above characterises the expression used by [ the applicant ] \u2013 \u2018 credit millionaire\u2019 \u2013 as vilifying and damaging to the public reputation of the person [ in respect of whom it is used ] and the esteem of his personality . The vilifying circumstance has been divulged through the press to a large number of readers . The fact that the first version of the article had a smaller circulation than the second , which also contained [ Mr PERSON ] rebuttal , is of no consequence , because the circulation of the printed material has no impact on the criminality of the act .","The act has been committed wilfully , the form of mens rea being recklessness . [ The applicant ] realised the criminality of her act and its injurious consequences , and accepted that they would occur . [ She ] pursued another aim , which is not unlawful \u2013informing the newspaper \u2019s readers of the latest news about the candidates for the post of deputy Minister of Finance in the ORG cabinet \u2013 , but was aware that the information published was untrue and did not correspond to the actual facts . The court \u2019s findings in this respect are based on the fact that [ the applicant ] did not carry out a proper journalistic enquiry before publishing her story .","No regulations for conducting a journalistic enquiry were in existence at the time when the article was published . Accordingly , in his or her work each journalist had to abide by and comply with the settled customary rules in the branch , which are in line with Articles DATE to CARDINAL of the [ LAW of DATE see paragraph CARDINAL below ] , which contain requirements and restrictions in the exercise of the rights proclaimed thereby . In the instant case , it was established that [ the applicant ] had not carried out the required comprehensive and thorough journalistic enquiry , as required by the rules of investigative journalism , that is , to receive confirmation from CARDINAL independent sources .","The first of [ the applicant ] \u2019s sources was a Member of the majority in ORG , who conveyed the information relating to [ Mr PERSON ] off the record , citing no sources , that is , it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels . He should have therefore , according to best journalistic practice , been considered an unreliable source . This fact obliged [ the applicant ] to duly check the information she had received through other , public and reliable , sources and not trust completely what she had heard in ORG . The information received from [ Mr N. ] did not in fact constitute another dependable source of information . The latter relied on the publication of the ORG publishing house The Full List of Credit Millionaires , in whose preface [ Mr M. NORP ] had been identified as a debtor through CARDINAL of his companies \u2013 FBK Maxcom , Maxcom Holding and Maxcom OOD . [ The applicant ] was therefore under the obligation to check whether [ Mr PERSON ] indeed owned shares in these companies , because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic . This conclusion is reinforced by the fact that the publication in issue gave the names of the companies , not of their shareholders , for which reason the statement in its preface was not confirmed by its contents . However , [ the applicant ] did not take the requisite steps to verify the facts alleged by [ Mr N. ] and the publication \u2019s preface . She merely established , after a check in the ORG information system , that [ Mr PERSON ] was a shareholder in the company Vitaplant [ OOD ] , which also featured on the list of persons with outstanding credits . The company Vitaplant [ OOD ] was not , however , among the companies connected to [ Mr PERSON \u2019s name in the publication \u2019s preface , and that should have prompted [ the applicant ] to doublecheck her assumptions . However , [ the applicant ] assumed that the link uncovered by her was sufficient to corroborate the statement that [ Mr PERSON ] was a credit millionaire . She thus failed to comply with her duty of thoroughly verifying the information through reliable , independent sources . [ The applicant ] did not check whether the statement in the [ publication \u2019s ] preface that [ Mr PERSON ] was connected to CARDINAL debtor companies corresponded to the truth , which was mandatory . The fact that she works at a DATE newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries . She had access to information in the register of companies , which is public , in order to check the veracity of the information she had gathered . Not only did [ the applicant ] not do that , but in her article she relied on a document with which she had not been duly acquainted DATE the official list of borrowers compiled by the [ ORG ] . The statement in her article that the CARDINAL companies \u2013 Maxcom Holding , Maxcom OOD and ORG DATE were companies of [ Mr PERSON ] was not supported by due journalistic enquiry . Her source , [ Mr N. ] , relied on the publication of ORG , which in fact means that [ the applicant ] \u2019s information was solely based on the preface of the list , which was not enough , considering that this information had not been verified either .","The readers\u2019 right to be informed of socalled \u2018 hot ORG does not absolve the article \u2019s author from checking carefully the accuracy of her publication . The fact that [ the applicant ] did not take the necessary steps in this direction confirms the court \u2019s conclusion that her act was wilful . There must be a balance between the reader \u2019s right to information and the rights of the persons affected by journalistic materials . The one responsible for this balance is the author , who must abide by the rules of investigative journalism . It is beyond doubt that the time and means available to a journalist on a DATE newspaper for a proper enquiry concerning a current issue are greatly limited , but [ the applicant ] was bound to do what was possible to verify the information she had gathered . In the case at hand [ the applicant ] had enough time to consult the register of companies , so as to report on the rumours heard in the lobby of the ORG building and at the same time to present the actual facts . It is precisely [ the applicant ] \u2019s passivity in respect of this second element which makes her act criminal . The lack of a full enquiry into the facts , performed with due journalistic care , and the applicant \u2019s own statement that she did not carry out a full enquiry into Mr PERSON involvement in the companies mentioned in the article , allow [ the court to conclude ] that she was not confident that her allegations were true . On the contrary , the fact that [ the applicant ] is an experienced journalist , maintains contacts with colleagues of hers from other media , with whom she exchanges information concerning such news , allows [ the court to conclude ] that she knew that information about outstanding credits of [ Mr PERSON ] had been published before . She was therefore aware that the CARDINAL newspapers which had published similar articles had also published refutations , and had apologised to [ Mr PERSON ] for the untruthfulness of their allegations . [ The applicant ] did not do all she was professionally bound to do in respect of the specific enquiry , which points to intent . She allowed herself to rely on sources which she had not checked , but which made her article look persuasive and objective .","CONCERNING THE PENALTY :","In determining the type and quantum of punishment the court had regard to the following :","The court is of the view that all necessary prerequisites for replacing [ the applicant ] \u2019s criminal liability and imposing an administrative punishment on her are in place . The offence committed by her is punishable by a fine . [ The applicant ] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability ... For this reason , the court is of the view that [ the applicant ] should be exonerated of criminal liability and punished administratively by a fine .","In determining the amount of the fine the court had regard to [ the applicant ] \u2019s means , earned as a journalist , as well as to certain mitigating circumstances , such as a critical attitude to her act , cooperation in establishing the facts , [ and ] good character . All of these favour a lower fine , that is [ ORG ] CARDINAL .","The court contemplated the possibility ... of imposing an additional punishment , but accepted that this is not necessary as the fine is sufficient to reform and deter [ the applicant ] and the general public .","CONCERNING THE CIVIL CLAIM :","The existence of damage resulting from the offence under LAW of the [ LAW of DATE ] is an unrebuttable presumption and , in view of the court \u2019s finding that the applicant acted with mens rea , the only outstanding issue is the quantum of damage . It is beyond doubt that the publication authored by [ the applicant ] damaged [ Mr M.D. ] \u2019s reputation and public esteem . He should therefore be compensated for that damage . At the same time it has not been proved beyond doubt that the article has affected [ Mr PERSON \u2019s business relations with his partners , [ or ] has hindered his prospective career in the executive , that is , has prevented him from being appointed to a highranking position . [ His ] allegations in this respect remained a mere conjecture , lacking clear distinction between reality and possibility . All averments in a criminal complaint are subject to proof at trial , including the quantum of the damage . For this reason , the lack of evidence leads to the conclusion that [ Mr PERSON \u2019s claim for ORG is unproven . [ The claimant ] is not relieved of the burden of proving the exact quantum of the sustained damage , irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes .","The court ruled in equity , as required by [ the law ] and the established caselaw , accepting that [ the applicant ] should be ordered to pay [ Mr M. D. ] the amount of ORG CARDINAL as compensation for the nonpecuniary damage suffered as a result of the offence . [ The applicant ] is to pay interest on this amount at the legal rate from DATE until settlement . ... \u201d","On DATE the applicant appealed to ORG . She argued , inter alia , that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party . It had thus restricted her capacity to prove the veracity of her allegations against Mr PERSON The lower court had also erred in accepting that she had acted with mens rea , which was excluded on account of , in particular , the fact that there had been prior publications stating that Mr PERSON was a \u201c credit millionaire \u201d . The applicant finally stated that her conviction and sentence were contrary to , inter alia , LAW . A journalist had the right to impart information received from others acting in their official capacity , which is how it was received in this case . She was under no obligation to verify publicly disclosed information . She had received the information from a Member of ORG , immediately after a discussion within his parliamentary group on the matter , and had simply passed it on .","In a supplementary memorial of DATE the applicant further said that she had not committed the actus reus of defamation , as Mr PERSON was indeed a \u201c credit millionaire \u201d , which was the actual vilifying circumstance , not the fact that he had been involved in certain companies . This fact was further evidenced by the judgment dismissing his tort action against ORG . The evidence presented merely proved that he was not on the list of \u201c credit millionaires \u201d as a physical person . It was therefore still possible that he could have been one through participation in certain companies , as she had tried to prove . The lower court \u2019s findings in respect of , inter alia , Mr PERSON direct and indirect participation in the companies mentioned were likewise erroneous . The court had also incorrectly held that the applicant had acted recklessly . She personally , and also her colleagues , had made numerous checks through various sources , which had led them to believe , in good faith and in line with the rules of investigative journalism , that Mr PERSON was a \u201c credit millionaire \u201d . The alleged insufficiency of the verification could only indicate negligence , not intent . Finally , the fact that the impugned information had previously been made public excluded defamation .","The Sofia City Court held a hearing on DATE . It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr PERSON participation in Vitaplant OOD , refused certain other evidentiary requests by the applicant , and heard the parties\u2019 arguments .","In a final judgment of CARDINAL DATE the ORG noted the facts set out in paragraphs PERSON above , including the part relating to Mr M. D. \u2019s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay , and upheld the applicant \u2019s conviction and sentence in the following terms :","\u201c ... The parties are not in dispute about the facts [ established by the court ] . There is also no dispute about the [ lower court ] \u2019s finding that the statement that a given person is a \u2018 credit millionaire\u2019 because companies owned by him appear on the [ ORG ] \u2019s list of debtors with \u2018 bad PERSON is objectively vilifying for him or her . [ The applicant \u2019s ] defence raises legal arguments , which outline CARDINAL disputed questions . The first is whether there is defamation where the facts set out in the publication are untrue , but the conclusion made on their basis is true on other grounds . The defence argues that [ Mr PERSON ] is in fact a \u2018 credit millionaire\u2019 , not on account of the companies cited in the publication , but because of [ his involvement in ] another company \u2013 Vitaplant OOD . The second is whether an individual who owns a share in a company with outstanding credits can be deemed a \u2018 credit ORG . The view of [ the court ] on these questions is as follows :","The expression \u2018 credit ORG is not legally defined . It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use , by them personally or by physical or legal persons connected with them , of unsecured bank credits , which have remained unpaid and have been listed by the [ ORG ] as unrecoverable . The expression is pejorative , because it implies that the people in question are supposedly responsible for the crisis in the banking system and the socalled \u2018 ORG of the banks \u2013 generally persons who have become rich in a criminal way . A list of \u2018 credit FAC as an official document emanating from the [ ORG ] has never existed . There exists a list of the persons with outstanding credits as of DATE , which has been compiled pursuant to ORG . This LAW requires the [ reportable ] credits to exceed MONEY \u2013 it does not concern only credits with CARDINAL or more figures . According to [ the LAW ] , the list is published in a special bulletin , which is not covered by bank secrecy and is sent to ORG , ORG , the tax and customs authorities and ORG . After its receipt at ORG on DATE the list was made available to journalists and was published in full or in part as a list of the \u201c credit millionaires \u201d . In fact , the vilifying circumstance is not to own specific companies , but to be a \u2018 credit millionaire\u2019 . In the view of the [ court ] , however , such a dissection of the statement in [ the applicant ] \u2019s publication and the application of paragraph CARDINAL of LAW of DATE ] to CARDINAL of the resulting parts can not be made , for the following reasons . Readers are not bound to accept journalistic statements uncritically . An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful . Such facts in the case at hand are the citing of an official document featuring [ Mr PERSON \u2019s name ( untrue ) and the citing of specific companies owned by [ Mr PERSON ] with specific debts ( also untrue ) . There is no doubt that without these untrue allegations the statement that [ Mr PERSON ] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him . It would be wrong to divide an averment containing a vilifying circumstance into CARDINAL parts for a second reason : the damage to the reputation and the public esteem of a defamed person is not a constant value . The degree of that damage may vary significantly . In the instant case , where there is a statement that an individual is a \u2018 credit millionaire\u2019 because of his involvement in companies which have received credits , the [ court ] considers that the greater the amount of the outstanding credits , the more numerous the companies having received them , the more direct the connection of the individual with these debtor companies , and , last but not least , the noisier the public scandal , the more vilifying is the statement . [ Mr PERSON ] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not MONEY , if the article had cited CARDINAL unknown company instead of CARDINAL companies which had become notorious because of their link with criminal investigations , and if [ Mr PERSON ] had not been indicated as [ their ] sole owner instead of merely a shareholder [ in them ] .","Because of the meaning implied in the expression \u2018 credit millionaire\u2019 the [ court ] considers that in the event of a credit taken by a company , an individual could be deemed as having profited therefrom , in the range of MONEY , only if [ his or her ] connection with that company is direct , and not through the intermediary of participation in companies which in turn participate in other companies , and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him . The link may likewise exist through participation in the management [ of these companies ] . At the time when the credit was received [ Mr PERSON ] did not participate directly in Vitaplant [ OOD ] . He was neither a manager of that company , nor a substantial shareholder . The credit itself was not in an amount which would make him a \u2018 millionaire\u2019 .","The arguments relating to the existence of a civil judgment dismissing a tort action by Mr PERSON against ORG are irrelevant , as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the nonpecuniary damage sustained , whereas the civil courts are under no obligation to gather such evidence . This judgment is not binding on the criminal court .","The arguments relating to the lack of mens rea are unfounded . The court considers that the [ lower court ] has correctly accepted as true [ the applicant ] \u2019s statements that she had verified the information from CARDINAL independent sources \u2013 the Members of ORG and [ Mr N. ] , after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers . In spite of that , the defamation was committed recklessly . [ The applicant ] has disregarded her duty to check the information she imparts with the only reliable source \u2013 the public register of companies \u2013 to which she had access . The opinion of the MPs was unofficial , as established by the testimony of [ the applicant ] \u2019s colleagues , whereas [ Mr N. ] , not having his own information , referred [ the applicant ] to the publication of ORG . This leads to the conclusion that [ the applicant ] was aware of the possibility that the vilifying information might not be accurate , but disregarded this concern in order to get her story to print as soon as possible . \u201d","The relevant provisions of the LAW of DATE read as follows :","\u201c CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , written or oral , sound , or image , or in any other way .","NORP This right shall not be used to the detriment of the rights and reputation of others , or for the incitement of a forcible change of the constitutionally established order , the perpetration of a crime , or the incitement of enmity or violence against anyone . \u201d","\u201c The press and the other mass media shall be free and not subject to censorship . \u201d","\u201c CARDINAL . Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens , nor against national security , public order , public health or morals .","NORP Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them , unless the information is a state secret or a secret protected by law , or it affects the rights of others . \u201d","Article CARDINAL of LAW of DATE , as in force since DATE , provides as follows :","\u201c CARDINAL . Whoever divulges a vilifying fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from MONEY , as well as by a public reprimand .","NORP The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence . \u201d","If the defamation is committed through a publication , it is punishable by a fine ranging from MONEY , as well as by a public reprimand ( Article QUANTITY CARDINAL ) and CARDINAL of the LAW , as in force since DATE ) . Since DATE all instances of defamation are privately prosecutable offences ( LAW , as in force since DATE ) . In DATE an unofficial collection of the caselaw of GPE and ORG in defamation cases was published ( PERSON \u043f\u0440\u0430\u043a\u0442\u0438\u043a\u0430\u0442\u0430 \u043d\u0430 PERSON \u0440\u0430\u0439\u043e\u043d\u0435\u043d \u0441\u044a\u0434 , PERSON , DATE \u0433. ) ; it reported the case against the applicant at p. CARDINAL .","Article DATE of the Code , as in force at the relevant time , allowed the courts to replace convicted ORG criminal liability with an administrative punishment DATE a fine ranging from ORG CARDINAL to ORG DATE if ( i ) the offence of which they had been convicted was punishable by up to CARDINAL years\u2019 imprisonment or a lesser penalty , in respect of an intentional offence , ( ii ) they had not been previously convicted of a publicly prosecutable offence and their criminal liability had not been previously replaced by an administrative punishment , and ( iii ) the damage caused by the criminal act had been made good . Along with the fine the court could impose occupational disqualification of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10","6"],"non_violated_paragraphs":["6-1","6-3"],"non_violated_bulletpoints":["6-3-d"],"violated":false}
{"itemid":"001-92090","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":2009,"docname":"CASE OF MENDEL v. SWEDEN","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in GPE .","Since DATE the applicant has been registered with ORG ) in GPE and , since DATE , she has been taking part in different programmes provided by it . CARDINAL of these programmes , called activity guarantee ( aktivitetsgaranti ) , was a programme for persons who were , or who were at a risk of becoming , unemployed for a long period as well as for groups of persons who often had difficulties in finding a job . The purpose of the programme was to give the participants greater opportunities to find a job and it involved different activities such as short term education and the possibility to try different kinds of work . Each person who participated in the programme had a personal supervisor from ORG and together they were supposed to set up a plan for the activities in which the participant was taking part . The participant was obliged to attend meetings and to meet his or her supervisor on a regular basis , and he or she also had an obligation to apply for suitable jobs which were advertised through ORG .","On DATE ORG ( apparently on delegation from ORG ) ) decided to withdraw its approval for the applicant to take part in the programme in which she was participating . The decision was taken in accordance with Section CARDINAL(a ) of the Ordinance on Labour Market Policy Programmes ( f\u00f6rordningen om arbetsmarknadspolitiska program , SFS CARDINAL:CARDINAL ; hereafter \" the DATE Ordinance \" ) . According to ORG , the applicant had not been acting in a proper manner in relation to the demands laid upon her . The decision was taken on the basis of a report drawn up by ORG . The report stated that the applicant had been called to attend information meetings on several occasions but that she had either announced that she was not able to attend or she had simply not attended . It also stated that the applicant , at an information meeting , had made statements that led to a job interview being cancelled .","When the applicant \u2019s permission to participate in the programme was revoked , her subsistence support in the form of activity support ( see \u00a7 CARDINAL below ) was also revoked , leaving her without any income . According to the applicant this forced her to pay for living expenses out of her savings for DATE and to take PERCENT early retirement in DATE .","On DATE the applicant appealed against the decision of ORG to ORG ( PERSON - nadsstyrelsen ORG \u201c the Board \u201d ) . She claimed that there were several statements in the report which were not true . For instance , she had been ill and hospitalised and therefore had not been able to attend certain meetings and she had informed ORG about the situation . She also alleged that a note in the report which stated that on CARDINAL occasion she had not attended a meeting was not true . Moreover , she claimed that , at the aforementioned information meeting , she had told an official of ORG that she felt she was not suited for the job in question . Thereafter , the official had told her that she could leave .","On DATE the ORG decided to reject the appeal . It found that the applicant had , on several occasions in DATE and DATE , announced that she was not able to attend certain meetings ; on one occasion because she had planned to go on vacation . ORG took into account the possibilities to adapt the kind of work the applicant was offered , and the fact that she had not proved her medical problems or shown that they were of a permanent nature , and found that she had not done everything in her power to get a job . Therefore , the ORG concluded that there were grounds to withdraw her entitlement to participate in the programme . Consequently , the appeal was rejected .","In the ORG \u2019s decision , it was expressly stated that there was no possibility in accordance with LAW DATE Ordinance to appeal against the decision .","On DATE the applicant wrote a letter to ORG , expressing her dissatisfaction with its decision . In the letter she referred , inter alia , to the fact that the ORG in its decision had noted that no appeal lay against the decision and asked how she could obtain redress .","On DATE the applicant submitted a complaint to the Chancellor of Justice ( NORP ) where she complained , inter alia , about the authorities\u2019 decisions and their handling of her case . She requested damages , but did not claim that there had been a breach of her rights under LAW . This complaint seems still to be pending before the Chancellor of ORG .","A person who is unemployed may be entitled to subsistence support through the unemployment insurance . The main regulations in this area are given in LAW ( lagen om arbetsl\u00f6shets - f\u00f6rs\u00e4kring , LAW ; hereafter \" LAW \" ) and LAW ( lagen om arbetsl\u00f6shetskassor , LAW ) . Unemployment benefits are financed through membership contributions made by the members of the unemployment insurance funds and ORG funding . A person who is not a member of an unemployment insurance fund can still receive some benefit , a so - called basic insurance . Benefits are paid to a person who is unemployed and has fulfilled a qualifying period of employment , that is he or she has worked a certain number of DATE before becoming unemployed , and who fulfils certain basic qualifying conditions , for example , he or she must actively be looking for work . At the relevant time benefits were provided for a limited number of DATE . After that , a new qualifying period of employment had to be completed in order to qualify for a new period of benefits .","According to Section CARDINAL(a ) of LAW , the benefits will be reduced for a certain period if the beneficiary , without acceptable reasons , rejects suitable work or if he or she , without having expressly rejected the work , by his or her actions causes employment not to be realised . The third time this happens the beneficiary will be disqualified from receiving benefits . According to LAW , the same will happen if a beneficiary without acceptable reasons rejects an assignment to a labour market policy programme ( arbetsmarknadspolitiskt program ) . Decisions regarding the right to the benefits regulated in LAW can be appealed against to the administrative courts .","The activity guarantee scheme was CARDINAL of several different labour market policy programmes . The scheme ceased to be in force on DATE . According to Sections CARDINAL and CARDINAL of the DATE Ordinance , a person could ( the word \u201c may \u201d ( f\u00e5r ) was used in the GPE ) be assigned to the activity guarantee scheme if he or she was DATE , was or was at risk of becoming unemployed for a long time and was searching for work through the public employment service . Section CARDINAL of the DATE Ordinance stated that an assignment to the programme had to be motivated in terms of labour market policy and , thus , an assignment could only be made if it appeared appropriate both for the individual and from an overall labour market policy perspective . Moreover , Section CARDINAL stated that an assignment to the activity guarantee scheme would apply for as long as it was justified in terms of labour market policy .","A person who entered into the activity guarantee scheme would no longer be entitled to unemployment benefits . His or her subsistence would instead be paid according to the provisions in the Ordinance on Activity Support ( f\u00f6rordning om aktivitetsst\u00f6d , SFS CARDINAL:CARDINAL ) . LAW stated that a person who entered into the activity guarantee scheme would lose his or her remaining DATE of unemployment benefits . In the preparatory works preceding the amendment of LAW Act the Government stated that it was not necessary to allow people who left the activity guarantee scheme a possibility to use their remaining DATE of unemployment benefits , \u201c since the system around the activity guarantee scheme means that no one should have to leave the activity guarantee without having his or her support secured \u201d ( Government PERSON p. DATE ) .","The Ordinance on Activity Support stated that a person who took part in , inter alia , the activity guarantee scheme was entitled to economic support . According to LAW , a person who was or would have been entitled to unemployment benefits or who had received unemployment benefits for the longest period for which benefits could be provided , would be given activity support equivalent to the unemployment benefits he or she would have received under LAW . A person who was not entitled to benefits as described above would still be given a specific amount per day in activity support . When a person who had been taking part in a programme such as the activity guarantee ceased to be part of it , he or she was no longer entitled to the activity support .","Section CARDINAL(a ) of the DATE Ordinance stated that an assignment to the activity guarantee scheme would be revoked if a person assigned to it refused an offer of suitable work or another measure under the guarantee scheme without an acceptable reason . An assignment to the activity guarantee scheme would also be revoked if the individual did not act in a proper manner or otherwise disrupted the activities . Moreover , an assignment could be revoked if there were other special reasons to do so .","According to Section CARDINAL(b ) of the DATE Ordinance , if an assignment to the activity guarantee scheme was revoked because the individual had refused an offer of suitable work or another measure under the guarantee scheme , without an acceptable reason , the individual would ( the word \u201c shall \u201d ( skall ) was used in the GPE ) be reassigned to the activity guarantee scheme after a suspension of DATE , if certain basic requirements were met . In the Government PERSON which preceded the introduction of this provision , the Government noted that the consequences for those who had their assignment to the activity guarantee scheme revoked would be far - reaching unless they had fulfilled a new qualifying period of employment . The Government also observed that the activity guarantee scheme had the character of a last economic protection among the labour market policy measures for those who were , or were at a risk of becoming , unemployed for a long period . Thereafter the Government stated : \u201c The person applying should therefore in principle have a right to participate in the activity guarantee until he or she finds a solution for his or her unemployment situation , on condition that he or she in an active way contributes to such a solution . ... A person who has had his or her assignment to the activity guarantee revoked on the ground that he or she has refused an offer of suitable work or another measure under the guarantee scheme , shall therefore be offered a new assignment to the guarantee . \u201d ( Government PERSON CARDINAL p. CARDINAL )","Decisions regarding the revocation of an assignment to a labour market policy programme , including the activity guarantee scheme , were taken by ORG . Appeals against ORG decision could be made to ORG . According to LAW Ordinance , no appeal lay against ORG decisions .","In connection with a reorganisation of ORG into ORG , the issue of whether decisions regarding labour market policy programmes should be subject to appeal was considered by the Government . It first stated that there was a right to be assigned to the labour market policy measure called \u201c new start jobs \u201d ( nystartjobb ) and then stated , inter alia , the following : \u201c In the case of other labour market policy measures and financial compensation , assignment decisions to them depend to a great extent on the situation in the labour market . There is no right to receive such a measure and there is no right to retain it either . This means that the decisions to be taken by the new agency in these matters , including the revocation of a measure , do not need to be examined by a court . Nor are the decisions suited to an examination by a court . \u201d ( Government PERSON p CARDINAL )","The handling of matters in the NORP public administration is regulated by LAW ( f\u00f6rvaltningslagen , SFS CARDINAL ; hereafter \" LAW \" ) . LAW , of the DATE Act states that the provisions in the Act are subsidiary if they differ from the provisions in any other act or ordinance . According to LAW , a decision may be appealed against by any person whom the decision concerns , provided the decision affects him or her adversely and an appeal against the decision is permitted . Section CARDINAL(a ) states that appeals are to be made to the administrative courts . The preparatory works ( Government PERSON CARDINAL\/CARDINAL:CARDINAL pp CARDINAL ) state that CARDINAL of the purposes of LAW ) is to assign a competent court when a prohibition to appeal against a decision has to be set aside because it would be in violation of the LAW .","On DATE a new second paragraph was added to LAW which states that the provisions on appeal according to LAW should always apply if it is necessary in order to provide for everyone \u2019s right to a fair trial in the determination of their civil rights or obligations as laid down in LAW . According to the preparatory works ( Government PERSON p CARDINAL ) , one of the reasons for amending LAW was to make it clear that LAW provisions on appeal applied regardless of what was stated in other acts or provisions , if this was necessary in order to satisfy the right to access to court in accordance with the Convention .","Section CARDINAL \u00a7 CARDINAL of the DATE Act states that an authority has an obligation to inform a party about how to appeal against all decisions that affect the party adversely , if the decision can be appealed against .","In a decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) ORG ( ORG domstolen ) found that a dispute over agricultural subsidies concerned a civil right in the sense of LAW and found that a trial before a court should be allowed . Therefore , the court set aside the prohibition to appeal against the authority \u2019s decision . Similarly , ORG ( Regeringsr\u00e4tten ) has set aside prohibitions to appeal against different authorities\u2019 decisions , when the cases concerned civil rights and obligations ( see , for example , decision of DATE in R\u00c5 DATE ref . CARDINAL and decision of DATE in R\u00c5 DATE ref . CARDINAL ) .","It follows from LAW , LAW ( ORG , ORG ) that the ORG is liable to pay compensation for , inter alia , financial loss caused by a wrongful act or omission in connection with the exercise of public authority . From LAW , LAW it follows that , under certain circumstances , the ORG is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority .","In a judgment of DATE ( ORG DATE p. CARDINAL ) , ORG found that an individual had a right to bring a civil action against the ORG before the national courts on the ground that there had been a violation of LAW because a criminal case against the individual had not been concluded within a reasonable time . ORG has subsequently , in a judgment on DATE ( ORG DATE p. CARDINAL ) , found that individuals have a right to bring civil suits against the ORG for violations against any ORG of the ORG when the ORG , according to the ORG , has an obligation to pay damages for the violation and such obligation can not be based on national legislation .","Anyone who wishes to claim compensation from the ORG for financial loss , which he or she considers to have been caused by a wrongful decision taken by a court or an administrative ORG authority , can proceed in CARDINAL different ways : He or she may either petition the Chancellor of Justice in accordance with LAW on ORG against the State ( F\u00f6rordningen om handl\u00e4ggning av skadest\u00e5ndsanspr\u00e5k mot staten , ORG ) , or bring a civil action against the ORG in the ordinary courts . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings before the courts ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83100","languageisocode":"ENG","respondent":"SVN","branch":"ADMISSIBILITY","date":2007,"docname":"SINKOVIC v. SLOVENIA","importance":4,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr E. Doki\u010d , a lawyer practising in GPE .","In DATE a company , HIT , published in a local newspaper an invitation to submit proposals for the name of a new casino . A reward of CARDINAL NORP tolars ( MONEY ) was promised to the person whose proposal was chosen .","The applicant sent a list of CARDINAL proposals in the prescribed period .","On DATE HIT informed the applicant about the CARDINAL chosen proposals , neither of which had been picked out of the applicant \u2019s list .","It appears that the name that the new casino was finally given was not one of the chosen ones , but one from the applicant \u2019s list .","Therefore , in DATE the applicant , relying on the provisions of ORG o avtorski in sorodnih pravicah ) , requested ORG to disallow further use of the casino \u2019s name and to order HIT to remove all visible signs containing it . The company would have been exempted from this obligation if it had paid the applicant the amount of CARDINAL NORP tolars ( MONEY ) .","On DATE the court rejected the applicant \u2019s claim . It held that the term from the applicant \u2019s list , finally used to name the casino , did not constitute the work of an author and was therefore not protected by copyright . It concluded that the applicant could have claimed the promised reward ( see above ) , but had failed to do so .","On an unspecified date the applicant appealed to ORG ( PERSON sodi\u0161\u010de v PERSON ) .","On DATE the court dismissed the applicant \u2019s appeal .","On DATE the applicant , not represented by a lawyer , lodged a constitutional appeal .","On DATE ORG ( PERSON sodi\u0161\u010de ) dismissed the applicant \u2019s appeal . The applicant did not indicate the date on which this decision was served on him .","The applicant dated his first letter to the ORG DATE . The applicant posted it , as a registered letter , at TIME on DATE at the post office in GPE .","On DATE the applicant lodged a duly completed application form , DATE after receiving the ORG \u2019s letter advising him to do so .","Section CARDINAL - Just satisfaction for damage sustained prior to implementation of this Act","\u201c ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney \u2019s ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney \u2019s ORG within DATE of receipt of the proposal of the ORG Attorney \u2019s ORG . The State Attorney \u2019s Office shall decide on the proposal as soon as possible and within DATE at the latest . ...","... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81817","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2007,"docname":"BADER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is the father of the child NORP , born out of wedlock on CARDINAL DATE . The applicant acknowledged paternity immediately after his son \u2019s birth .","The applicant and the child \u2019s mother ( PERSON ) separated permanently in DATE . The last contact between the applicant and his son to which PERSON gave her consent took place in DATE . Following this , PERSON denied the applicant any access to his son . The applicant \u2019s frequent requests to the family courts to be granted access rights remained unsuccessful .","On DATE PERSON married Mr PERSON","On DATE Mr and PERSON applied to adopt the applicant \u2019s son .","By order of CARDINAL DATE ORG ( ORG ) granted the adoption .","On DATE , following the applicant \u2019s complaint , ORG ( Bundesverfassungsgericht ) lifted the binding effect of the adoption order of CARDINAL DATE insofar as it prevented a fresh consideration of the case ( PERSON ) and remitted the case to ORG . ORG found that the legal provision permitting adoption of a child by his mother and stepfather without the natural father \u2019s consent and without taking into account the latter \u2019s interests in the maintenance of a parental relationship violated his rights to the enjoyment of his family life as guaranteed by LAW sentence CARDINAL of LAW ) . Accordingly , the legislator was ordered to amend the legal provisions .","On DATE new legislation entered into force , providing that a minor \u2019s adoption depended on both GPE consent . However , if the mother of a child born out of wedlock exercised sole custody , the court had to substitute the natural father \u2019s consent if the child would suffer a disproportionate disadvantage if not adopted ( section DATE \u00a7 CARDINAL of the amended LAW , see relevant domestic law below ) .","On DATE the counsel representing PERSON and PERSON filed a request to substitute the applicant \u2019s consent to the child \u2019s adoption by PERSON","On DATE ORG , having heard the applicant , PERSON and PERSON and the child as well as expert opinion , substituted the applicant \u2019s consent to the adoption pursuant to LAW . That court found that the child \u2019s interest in being adopted by his stepfather outweighed the applicant \u2019s interest in the maintenance of the parental bonds by far . It noted that the child NORP had expressed that he felt as a full member of the PERSON family and that he strongly wished to be legally accepted as PERSON child . It further noted that the PERSON family had been considerably disturbed during DATE by numerous confrontations with the applicant . Furthermore , the court - appointed expert had clearly stated that the adoption would be in the child \u2019s interest . With regard to the applicant \u2019s interests , ORG noted that the adoption would lead to a severing of the parental bonds . It took however into consideration that the child had lived for DATE with the PERSON family and that no father - son relationship existed between the applicant and the child . Finally , ORG considered that the adoption might put an obstacle to a later reconciliation between the applicant and the child , but considered that this would not prevent the child from getting in touch with the applicant if he later on might wish to do so .","On DATE ORG rejected the applicant \u2019s complaint against ORG decision .","On DATE the applicant lodged a complaint against the decision of ORG of DATE with ORG and a further complaint against that same decision with ORG ( Oberlandesgericht ) .","On DATE the applicant lodged his application with the ORG .","On DATE ORG rejected the applicant \u2019s constitutional complaint as inadmissible .","On DATE ORG rejected the applicant \u2019s complaint . That court found that the impugned decisions did not violate the applicant \u2019s rights under LAW and under LAW . In so far as the requirements of adoption in the case of an unmarried father who had never held ( joint ) custody and had never \u201c had responsibility for the child \u201d were less than in the case of other parents , this distinction appeared factually justified in the circumstances of life that were typically found in this case . Furthermore , the lower courts had duly considered the applicant \u2019s interests . ORG added that the applicant \u2019s long lasting fight for his rights had forced the child and his new family into the defensive , which made it necessary in the child \u2019s interest to permit the adoption . It further noted that the last contact between the applicant and the child , which had taken place with the mother \u2019s consent , was in DATE when the child was merely DATE and that the applicant \u2019s further endeavours to get into touch had contributed to the child \u2019s aversions . ORG considered that the length of the proceedings \u2013 which could not be attributed to the courts \u2013 had put the child under particular pressure and had thus weakened the applicant \u2019s position .","On DATE ORG issued an order confirming the child \u2019s adoption by PERSON ORG noted that the child had fully integrated into the PERSON family . According to the ORG previous findings , the child would suffer a disproportionate disadvantage if not adopted . ORG found that the other legal prerequisites were met and , in particular , that the child had firmly expressed that he wished to be adopted .","On DATE ORG rejected the applicant \u2019s complaint as being inadmissible .","On DATE the applicant filed a constitutional complaint against ORG decision of DATE , ORG decision of DATE and ORG decision of DATE .","On DATE the applicant lodged a constitutional complaint against ORG decision of DATE . He alleged that the impugned decisions and the legal provisions they were based upon violated his right to the enjoyment of his family life under LAW and under LAW . He further complained about a violation of his right to equal treatment as guaranteed by LAW .","By letter of CARDINAL DATE ORG informed the applicant that it had communicated his joint complaints to the Government and to several other interested parties for comments . By letter of CARDINAL DATE the court informed the applicant that \u2013 due to the high workload of the section \u2013 it could not be predicted when a decision on the admissibility of his complaint could be given .","On DATE ORG , sitting as a panel of CARDINAL judges , quashed the decisions of ORG of DATE , of ORG of DATE and of ORG of DATE and DATE and ordered the Land of Baden - W\u00fcrttemberg to reimburse the applicant the necessary expenses incurred by the proceedings before ORG .","ORG found that the applicant \u2019s case could be adjudicated by a chamber of CARDINAL judges as the questions raised by the applicant were no longer of fundamental importance .","The court noted in particular that ORG , in a decision given on DATE ( see relevant domestic law and practice , below ) , had issued valid guidelines which assured that section DATE \u00a7 CARDINAL of LAW was interpreted in accordance with LAW and that a father who had never held parental authority was not discriminated against as compared to a father who had .","The Constitutional Court emphasized the fact that the adoption severed all legal bonds to the natural father , including alimony claims and rights of succession . Furthermore , it was generally not to be regarded as being in the child \u2019s best interest to exclude access rights of the natural parent . Summing up , ORG found that a child \u2019s adoption by his or her stepfather could not generally be regarded as being in the child \u2019s best interest .","Turning to the applicant \u2019s case , ORG found that the impugned decisions violated the applicant \u2019s right to equal treatment under LAW of LAW , as they discriminated against the applicant when compared to a father who had previously held parental authority . It noted , in particular , that the lower courts had failed to take into account the applicant \u2019s submissions that he had lived for a certain period of time with the child and had thus assumed his responsibility as a parent . The lower courts had further failed to examine the reasons which had prevented the applicant from maintaining a father - child relationship . As could be established from the case - file , the child \u2019s mother had prevented the applicant \u2019s access to the child after meeting her future husband . ORG finally found that the applicant \u2019s later attempts to get in touch with the child should not be held against him .","Having regard to these findings , ORG did not find it necessary to examine the applicant \u2019s further complaints . As a result of this judgment , the proceedings concerning the adoption of the applicant \u2019s son were terminated .","On DATE and CARDINAL DATE ORG ordered the applicant \u2019s arrest on the basis of LAW , because he had refused to reimburse court fees incurred by the adoption proceedings and in order to compel him to render an affidavit ( eidesstattliche ORG ) .","On DATE ORG refused to entertain the applicant \u2019s complaint against the arrest orders .","The applicant was arrested on DATE and released following court order of CARDINAL DATE .","LAW ) reads as follows :","\u201c ( CARDINAL ) Marriage and the family shall enjoy the special protection of the state .","( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The state shall watch over them in the performance of this duty ... \u201d","The statutory provisions on adoption are to be found in LAW ( B\u00fcrgerliches Gesetzbuch ) .","Section DATE ( CARDINAL ) of that law originally provided that a child born out of wedlock could be adopted by its mother or stepfather without the natural father \u2019s consent .","On DATE ORG ( Bundesverfassungsgericht ) ruled that this provision violated the natural father \u2019s rights to the enjoyment of his family life as guaranteed by LAW ( CARDINAL ) of LAW insofar as it did not require the natural father \u2019s consent and did not allow to weigh the latter \u2019s interests .","On DATE LAW ( Gesetz zur Reform des GPE ) entered into force , which amended the relevant provisions on child adoption as follows :","Under section DATE LAW the adoption of a child is permissible if it is in the interest of the child \u2019s well - being and if it can be expected that parent - child relations will develop between the person applying for the permission to adopt and the child .","An adoption may only take place with the natural GPE consent ( section DATE \u00a7 CARDINAL ) .","Section CARDINAL , insofar as relevant , reads as follows :","Section DATE substitution of a parent \u2019s consent","\u201c ( CARDINAL ) Upon the child \u2019s request , the court has to substitute its consent for that of a parent , if that parent has grossly and persistently violated his or her duties toward the child or if he has demonstrated that the child is indifferent to him , and if the child would suffer a disproportionate disadvantage in the absence of an adoption ...","...","( CARDINAL ) The court can further substitute its consent for that of a parent who is ... permanently unable to care for the child if the child , in the absence of an adoption , could not be raised within a family , which would seriously endanger its development .","( CARDINAL ) In the cases of section \u00a7 CARDINALa \u00a7 CARDINAL the court has to substitute its consent for the father \u2019s if the child would suffer a disproportionate disadvantage in the absence of an adoption . \u201c","Section CARDINAL \u00a7 CARDINAL provides that the mother of a child born out of wedlock exercises sole custody if no other agreement has been reached between the parents .","On DATE ORG ( ORG ) in separate proceedings which did not concern the applicant \u2019s case , laid down the following guiding principle for the interpretation of section DATE of LAW :","\u201c A disproportionate disadvantage in the absence of an adoption can only be assumed if the adoption would be so beneficial for the child that a parent who reasonably cared for the child \u2019s well - being would not insist on the maintenance of parental ties . \u201d","( \u201c ORG gereicht ... PERSON Kind zu unverh\u00e4ltnism\u00e4\u00dfigen PERSON , wenn die Adoption einen so erheblichen FAC f\u00fcr das Kind bieten w\u00fcrde , da\u00df ein sich verst\u00e4ndig um sein Kind sorgender PERSON der Erhaltung des Verwandschaftsbandes nicht bestehen w\u00fcrde . \u201d )","ORG further emphasised that it was not , as a general rule , in the child \u2019s interest if the adoption was aimed at excluding the natural father from exercising access rights . It further had to be considered that the adoption generally did not alter the child \u2019s opportunity to live within the new family , and only gave a legal framework to a factually existing situation . With regard to the father , one had to consider whether there existed a real parent - child - relationship or , if not , which reasons had prevented the father from building up such a relationship .","ORG concluded that section DATE , if interpreted in accordance with these guidelines , respected the natural father \u2019s rights under LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23178","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2003,"docname":"LINDGREN v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in Eksj\u00f6 . The respondent Government were represented by PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE S. was attacked several times outside his home by a person using a knife or a bayonet .","S. was heard by the police on CARDINAL occasions in DATE and DATE . Thereafter , on DATE , defence counsel was appointed for the applicant . A further police interview with PERSON was held on DATE . According to the applicant , he and his counsel were not informed of this interview or invited to attend it .","The applicant was subsequently charged with attempted murder of S. The applicant and PERSON knew each other , having served time together at the same prison and having met thereafter on a couple of occasions at the home of S.","On DATE the applicant received a copy of the records of the preliminary investigation . Those records state that the applicant had no objection or comments to the documentation of the investigation .","On DATE , CARDINAL May and DATE ORG ( tingsr\u00e4tten ) of PERSON heard the case . On DATE came to the court \u2019s waiting room but then left . The prosecutor stated at the hearing that he had talked to S. in the waiting room who had said that he had nothing to add but that he stood by the information he had given to the police . The court ordered that S. be fetched by the police , proceeded with the hearing but later discontinued it as S. had not been found . On DATE ORG adjourned the case , noting that the police had not been able to enforce the court \u2019s order that S. be brought to the hearing . On DATE again came to the waiting room but left before the hearing started . ORG then decided to continue the hearing of the case in the absence of S. It allowed that his statements made during the preliminary investigation be read out .","By a judgment of DATE ORG convicted the applicant of aggravated assault of S. and attempted murder of another person who had been attacked on a different occasion . The applicant was sentenced to DATE in prison .","Both the applicant and the public prosecutor appealed to ORG ( PERSON hovr\u00e4tt ) . The prosecutor requested that PERSON be heard in person before the appellate court or , alternatively \u2013 in the event that he would not appear \u2013 , that his statements to the police be admitted as evidence . The applicant objected to the alternative request , stating , inter alia , that it would violate the applicant \u2019s rights under the Convention .","On DATE ORG decided to refuse the prosecutor \u2019s alternative request .","ORG heard the case on DATE , DATE and DATE . Following S. \u2019s non - appearance on DATE , the court ordered that he be brought to the court by the police . The police were not able to enforce the order in time for DATE . However , on DATE , serving a prison sentence at the time , was taken to the court by the transportation service of ORG ( Kriminal - v\u00e5rdsstyrelsen ) . At the hearing PERSON refused to give evidence except for stating that it was not the applicant who had attacked him and that he had not previously named the applicant as the perpetrator . The court then decided to allow as evidence the statements made by PERSON during the police investigation .","By a judgment of CARDINAL DATE ORG convicted the applicant of attempted murder also in regard to the attack on PERSON and sentenced him to imprisonment for a total of DATE for the CARDINAL crimes . With respect to the statements made in the case by PERSON the court stated , inter alia , the following :","\u201c During the police investigation [ S. ] first stated that he was attacked by a man , who was accompanied by another man , and then that the attacker came in the company of a woman . ... During the preliminary investigation it also occurred , according to the testimony made by police officer [ NORP ] , that [ S. ] was asked whether the right person was detained in the case , and then nodded affirmatively and said \u2018 you know that , of ORG .","[ S. ] was summoned twice to ORG main hearing . On both occasions he came to the court \u2019s waiting room but disappeared before the hearing started . During the hearing before ORG , [ S. ] showed signs of being deeply upset . He acted as could be expected from a person , who is afraid of reprisals . ...","The fact that [ S. ] has not been heard by ORG and mostly refused to give evidence before ORG raises the question of the application of LAW the right to a fair trial and the right to examine or have examined witnesses ... . ORG has in a number of judgments dealt with this issue ( see , inter alia , Unterpertinger ... , where the LAW was found to have been violated , and PERSON ... , where no such violation was found ) . LAW , LAW , subsection CARDINAL of LAW ( PERSON ) shall be interpreted restrictively in the light of DATE and ORG application thereof ... .","ORG notes at the outset that the presentation of material from the preliminary investigation in itself can not be considered as a violation of LAW . According to the above - mentioned judgments , it seems that the decisive point as to whether there has been a violation is whether the conviction has been based primarily on this material . In order for ORG to be able to draw a conclusion on this point , it is first necessary to examine the evidence in the case .","There is no doubt that [ S. ] has sustained the injuries alleged by the prosecutor , nor as to how this happened . As to the identity of the perpetrator , [ S. ] has avoided to directly identify [ the applicant ] . Therefore , a conviction can not be based on [ S. \u2019s ] statements alone . The prosecutor has invoked certain supplementary evidence . In addition to this evidence , it is of importance that [ the applicant ] has not invoked any form of alibi evidence . ORG is of the opinion therefore that the statements made by [ S. ] during the preliminary investigation are not the primary evidence in the sense laid down by ORG . Article CARDINAL of the LAW can not therefore be considered as prohibiting this evidence from being considered by ORG .","On the basis of the available material , ORG makes the following assessment . According to what [ S. ] has stated , the perpetrator visited him on DATE . This information should be considered in conjunction with the statement of [ witness CARDINAL ] that [ witness CARDINAL ] DATE met [ S. ] together with a person whom [ witness CARDINAL ] has identified as [ the applicant ] , and then lends support to the conclusion that [ the applicant ] is the perpetrator . Although the identification of [ S. ] made by [ witness CARDINAL ] at a photo line - up does not have any real value as evidence , her observation of a man outside the home of [ the applicant ] on DATE confirms what [ S. ] has stated regarding his visit to the home of the perpetrator . The observations made by [ witness CARDINAL ] concerning the perpetrator \u2019s looks do also , to some extent , support the conclusion that [ the applicant ] is the perpetrator . The statements made by [ S. ] during the preliminary investigation have thus been verified on various points . This fact together with what has otherwise been revealed in the case is highly compromising for [ the applicant ] . It is apparent to ORG that [ S. ] throughout the investigation and the hearing of the case has been afraid of [ the applicant ] . The fact that [ S. ] during the oral hearing before ORG denied that [ the applicant ] was the perpetrator can therefore be disregarded . ORG finds it proven beyond reasonable doubt , as did ORG , that [ the applicant ] is identical with the perpetrator . \u201d","On DATE ORG ( H\u00f6gsta domstolen ) refused the applicant leave to appeal .","LAW , section CARDINAL of the Code of Judicial Procedure provides :","\u201c A statement made in writing on the occasion of already opened or imminent legal proceedings or a written record of a statement made on the occasion of such proceedings to the prosecutor or the police or otherwise out of court may be invoked as evidence in the proceedings only","NORP if this is specifically prescribed ,","if the person who made the statement can not be examined at or outside the main hearing in the case or otherwise before the court , or","if there are particular reasons , taking into account the costs and inconvenience that an examination at or outside the main hearing may entail , the possible gain of such an examination , the significance of the statement and other circumstances .","The rules on statements in writing or in written records in the first paragraph apply also in regard to a phonetic or similar record of a statement . \u201d","Chapter CARDINAL , section CARDINAL , subsection CARDINAL reads :","\u201c During the hearing of a witness , the witness \u2019s prior statement before a court or before a prosecutor or the police may be presented only when the witness \u2019s testimony differs from what he has previously stated or when the witness declares that he can not or will not speak . \u201d","The latter provision applies also to a hearing of an injured party , according to LAW , section CARDINAL , subsection CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60643","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2002,"docname":"CASE OF CUSCANI v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Article 6+6-3-e - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-e - Free assistance of interpreter);Pecuniary damage - claim dismissed","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant formerly managed \u201c The Godfather Restaurant \u201d in GPE upon GPE , which was operated by a company of which the applicant was a director . Following an inquiry by ORG and ORG and Excise in DATE into the restaurant and the applicant , the company went into liquidation and ownership of the lease of the restaurant was transferred to a new company controlled by the applicant . However , the restaurant was run by a succession of management companies under short - term management contracts . The various companies were all registered for ORG NORP \u201d ) purposes but failed to make any LOC payments or returns to the ORG and Excise authorities . In addition , wages were paid to employees in cash and were not declared to ORG . The resulting loss of ORG was assessed at MONEY ( \u201c GBP \u201d ) and the accumulated losses in respect of ORG contributions were assessed at ORG . In DATE the applicant was declared bankrupt as a result of civil proceedings brought by ORG to recover unpaid tax .","On DATE the applicant was arrested and on DATE charged with various offences of fraudulently evading ORG . He was remanded in custody . His applications for bail on DATE , CARDINAL DATE and DATE were refused .","The applicant was granted legal aid on DATE . The legal aid order covered both the committal hearings and the actual trial . The applicant was represented throughout the proceedings by a ORG ( \u201c QC \u201d ) , who was also a Recorder , a very experienced junior counsel and CARDINAL different firms of solicitors .","On DATE the GPE upon ORG committed the applicant for trial before ORG at GPE .","Preliminary hearings were held on DATE and DATE . At the hearing of PERSON the applicant was indicted with CARDINAL others on CARDINAL counts of being knowingly concerned in the fraudulent evasion of GPE ( DATE and DATE ) and of taking steps with a view to the fraudulent evasion of ORG ( DATE and DATE ) . The applicant pleaded not guilty .","At none of these hearings did either the applicant or his legal team request the provision of an interpreter , nor suggest to the court that the applicant required the services of an interpreter .","At the trial on DATE , the applicant , on the advice of counsel , changed his plea to guilty . He was also indicted on another count of cheating the public revenue and pleaded guilty to that charge too . The court was informed that the applicant disagreed on the quantum of the sums which formed the basis of the plea with the consequence that further discussion was needed on this matter with the prosecution . Defence counsel informed the court for the first time that the applicant had :","\u201c considerable difficulty in communicating , save in very simple concepts , in LANGUAGE . Now for the purpose of consultation we can get by , but one of the difficulties is that his LANGUAGE is very poor and his NORP is very NORP \u201d .","Counsel invited the court to direct that an interpreter be present at the subsequent hearing , given that at either a hearing or indeed a plea :","\u201c ... certain complicated matters might well have to be put before the court , and which he should understand as they are being put \u201d .","The court granted this request and adjourned for reports to be written and for the parties to reach agreement on the issue of quantum , after convicting the applicant of all charges .","At the following hearing concerning sentence held on DATE , the court noted that no professional interpreter was present despite its earlier direction . The applicant 's counsel stated that :","\u201c ... it appears that no arrangements have been made , in which case I think that we shall have to make do and mend . It may require an occasional adjournment if something needs to be explained . It has been discussed extensively and obviously already with the [ applicant ] and , although he may not follow the detail of the proceedings , he certainly knows the outline of what the prosecution will say . I imagine that their case will very much follow the summary , and he knows the burden of what I intend to say . \u201d","The trial judge asked whether anyone in court who knew the applicant was fluent in both NORP and NORP and could provide interpretation for the applicant . The applicant 's counsel , without consulting his client , pointed out that the applicant 's brother was present , and the court agreed to make use of him , if need be . The applicant 's brother was never requested to translate any statement during the course of the hearing .","The applicant was sentenced to a total of DATE imprisonment and disqualified from being a company director for DATE .","On DATE the applicant applied to ORG seeking leave to appeal against sentence . In his application , the applicant was represented by the same legal team that had defended him at trial . In a letter to ORG , the applicant stated that he had been sentenced on the basis , which was incorrect , that he had pleaded guilty to frauds totalling GBP CARDINAL,CARDINAL and that the real amount of the fraud was GBP CARDINAL . The applicant did not maintain in his application that he had been unable to understand the proceedings at the trial or to communicate effectively in court ; nor did he allege in his application that he should have been provided with the services of an interpreter .","Leave to appeal was refused by the Single Judge on DATE and by the full ORG on DATE .","On DATE the applicant sought advice from the President of ORG on what action to take against his defence lawyers but did not receive any reply .","On DATE the applicant wrote to the Home Secretary , admitting that he had not declared GBP CARDINAL per week for staff wages due to the recession , and claiming that the real amount of the fraud was GBP CARDINAL and not GBP CARDINAL . He further complained that his counsel had failed to secure him the services of an interpreter at the trial on DATE and that this was of \u201c paramount importance \u201d for the purposes of the plea in mitigation . The applicant further observed that his ORG had misled the trial court by stating that his brother would be able to act as a translator , when his brother was unable either to speak or write in LANGUAGE .","The Home Secretary forwarded the applicant 's case to ORG ( \u201c the Commission \u201d ) . The applicant himself applied to the Commission , claiming inter alia that his lawyers should not have allowed him to plead guilty to the GBP CARDINAL,CARDINAL fraud , as he had only intended to accept guilt in respect of GBP CARDINAL . Furthermore , his lawyers had failed to ensure the presence of an interpreter both at conferences in preparation for the trial and in court . He maintained that his brother did not speak LANGUAGE well enough and that he had not understood the charges or the legal process . He complained about his counsel , who , he claimed , did not understand NORP but nevertheless did not insist on an interpreter being present at conferences ; renounced the presence of a professional interpreter in court ; did not understand the case ; told him to plead guilty only at the trial , without explaining the consequences to him in detail and gave the court the wrong information that the applicant had accepted liability in respect of the total amount .","The Commission noted that it had interviewed the applicant via an NORP interpreter and that it was apparent from telephone conversations between the applicant and the ORG that he did not have a very good command of LANGUAGE . The Commission observed that the applicant 's solicitor and counsel at trial did not accept that he lacked understanding either of the language or of the nature of the case against him . However , the Commission went on to note , inter alia , that","a ) in the course of the proceedings the applicant 's solicitor had stated in counsel 's brief that the applicant \u201c has a grasp of LANGUAGE but is not very easily understood . At times , he says he wants an interpreter \u201d ;","b ) the trial judge had seen fit to order the presence of an interpreter ;","c ) on appeal , the applicant 's junior counsel had informed the court that the applicant did not have much of a command of LANGUAGE ;","d ) the applicant 's counsel told the ORG that he would have wanted an interpreter present had there been a trial on the basis of a not guilty plea .","The Commission accepted that the applicant would have been able to understand the generality of the prosecution case but expressed the view that an interpreter ought to have been present when the prosecution case was explained to the applicant by his own representatives , given the complex nature of the evidence . Furthermore , he should have had the benefit of an interpreter when it came to considering the matter of changing his plea to guilty .","The Commission also accepted that the applicant 's brother was not an adequate interpreter , but considered that the lack of an interpreter at the trial was \u201c of much less significance than it was at the earlier stage \u201d . Further , the ORG found that too little time had been spent by the applicant 's lawyers explaining the case to him .","The Commission concluded that there were grounds for finding that the plea was uninformed in that the applicant had not fully understood the nature of the case to which he was pleading , partly because of his inadequate understanding of the language , and because of the inadequate explanation of the case given to him by his legal representatives .","NORP However , the Commission noted that ORG no longer had the power to allow an appeal against conviction if it did not think the conviction was unsafe but was dissatisfied in some way with the trial process , since there was no longer room for the separate notion of an \u201c unsatisfactory \u201d conviction . In the view of the Commission , whilst the applicant 's conviction was arguably unsatisfactory , it could not be said to be unsafe . Since the Commission did not consider that there was a real possibility that , if referred to ORG , the conviction and sentence would not be upheld , it decided not to make such reference .","In the meantime , the applicant was released from prison on licence on DATE .","The leading domestic authorities on the provision of a interpreter are the cases of PERSON ( [ DATE ] CARDINAL CrAppR CARDINAL ) and ORG v the ORG ( [ DATE ] CARDINAL WLR CARDINAL ) .","In PERSON Reading CJ , speaking on behalf of ORG , set out the following statement of principle ( pp . CARDINAL ) :","\u201c We have come to the conclusion that the safer , and therefore the wiser , course , when the foreigner accused is defended by counsel , is that the evidence should be interpreted to him , except when he or counsel on his behalf expresses a wish to dispense with the translation , and the judge thinks fit to permit the omission ; the judge should not permit it unless he is of the opinion that by reason of what has passed before the trial , the accused substantially understands the evidence to be given and the case to be made against him at the trial . To follow this practice may be inconvenient in some cases , and may cause some further expenditure of time ; but such a procedure is more in consonance with that scrupulous care of the accused 's interest which has distinguished the administration of justice in our criminal courts , and therefore it is better to adopt it . \u201d","Lord Reading 's judgment in PERSON was reinforced in the more recent case of ORG v the ORG in DATE . Speaking on behalf of ORG , Lord PERSON stated :","\u201c Their Lordships have no doubt that the course advocated by Lord Reading CJ in PERSON v PERSON is a highly desirable one and should be followed wherever a foreign defendant , not fully conversant with the language of the proceedings , is represented by counsel . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-e"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83822","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2007,"docname":"CASE OF BEIAN v. ROMANIA [Extracts]","importance":1,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 6-1 (independence and impartiality of the court);Violation of Art. 14+P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award (global)","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre","text":["The applicant was born in DATE and lives in ORG .","In DATE the applicant was called up for military service . However , because of his father \u2019s opposition to the collectivisation of farmland , he was not allowed to undergo military training . Instead , he was assigned to a number of military units , including the ORG unit , as a building worker . His military service ended in DATE .","In DATE ORG , an administrative body grouping together the military units specially created for conscripts who were barred from military training , was abolished .","Law no . CARDINAL of CARDINAL DATE ( \u201c Law no . DATE \u201d ) recognised as forced labour the work performed in the military units coming under the authority of ORG , and provided for compensatory measures including a DATE allowance , free medical treatment and exemption from the television licence fee .","On DATE the applicant applied to the county pensions and social insurance fund ( \u201c the county fund \u201d ) , claiming the benefits available under PERSON no . DATE . In a decision of DATE the county fund refused the application on the ground that the applicant had not performed his military service in a military unit coming under the authority of ORG .","On DATE the applicant brought proceedings against the county fund before ORG , seeking to have the decision of DATE set aside and to be recognised as having performed forced labour during his military service .","In a judgment of DATE ORG found in the applicant \u2019s favour and ordered the county fund to issue a new decision awarding him the benefits provided for by PERSON no . DATE . On the basis of the entries in the applicant \u2019s military service record book , ORG concluded that he had worked on various building projects with the ORG military unit and had been discharged from service as an \u201c untrained combat soldier \u201d .","NORP The county fund appealed to ORG and ORG ( \u201c the ORG \u201d ) .","At the applicant \u2019s request , the ORG referred to ORG an objection raised by the applicant as to the constitutionality of LAW no . DATE . The applicant alleged that , in making a distinction between persons who had performed the same kind of forced labour during their military service , the provision in question was in breach of LAW and of LAW . He considered this difference in treatment to be unjustified since it was based solely on the hierarchical structure to which the conscript \u2019s military unit had belonged .","ORG dismissed the objection in a judgment of DATE , which included the following passage :","\u201c The definition of the categories of persons who are eligible for certain measures in compensation for the duress and hardship they underwent in the past ... is a matter for the legislature alone , provided that no privileges or discrimination are engendered between persons belonging to the same category and in identical situations . LAW no . DATE does not give rise to any privileges or discrimination contrary to LAW . \u201d","In a judgment of DATE in which it found in favour of the county fund , the ORG quashed the judgment of ORG and remitted the case for further preparation , with a view to determining whether the ORG military unit had been attached to ORG .","In a letter of DATE in reply to a request for information made by ORG , the PERSON military unit , which kept the army archives , stated that the ORG military unit did not feature on the list of units attached to ORG . It added that , in accordance with the rules on the implementation of PERSON no . DATE , the list had been drawn up by ORG , which had made it available to the military unit as a \u201c working tool \u201d .","On DATE the national archives of ORG informed ORG that the ORG military unit had not been attached to ORG .","On the basis of the information provided by the PERSON military unit and the national archives , and taking the view that PERSON no . DATE applied only to conscripts who had worked in military units coming under the authority of ORG , ORG dismissed the applicant \u2019s claims in a judgment of DATE .","The applicant appealed to the ORG . In his submission , the PERSON military unit , by confining itself to reproducing the information contained in the list drawn up by ORG and omitting to check the recruitment file , which contained proof of the work carried out , had not adequately replied to the request for information from ORG .","The applicant further contested the distinction made by the PERSON between those conscripts who had performed forced labour in military units answerable to ORG and other conscripts who , although they had performed the same kind of work , were not entitled to benefits under the PERSON solely because their military units had not come under the authority of ORG . He argued that , in any event , the ORG , in a judgment of DATE , had recognised a former conscript in a similar situation to his own as being covered by the provisions of Law no . DATE .","In a final judgment of CARDINAL DATE , the ORG dismissed the appeal and upheld the judgment of ORG on the following grounds :","\u201c In accordance with PERSON no . DATE , persons who performed their military service DATE in the work brigades under the authority of ORG are covered by the provisions of that PERSON .","It follows that the decisive criterion for eligibility under the PERSON is not the kind of work performed within the military unit , for example building work , but whether or not the unit in question came under the authority of ORG , within which work brigades were established .","As a result , given the information provided by the PERSON military unit in its letter stating that the unit to which the applicant belonged was not on the list of units answerable to ORG , ORG was correct in ruling that the conditions for application of the PERSON were not met in the instant case and in dismissing the appeal accordingly . \u201d","\u201c Any NORP citizen who performed military service DATE in the work brigades coming under the authority of ORG shall be covered by the provisions of this PERSON . \u201d","\u201c The persons referred to in LAW shall be entitled to a DATE allowance ... \u201d","\u201c The persons referred to in LAW ... shall also be entitled to ... :","\u2013 free medical treatment and medicines ... ;","\u2013 exemption from the television licence fee ... \u201d","\u201c ( CARDINAL ) The benefits referred to in the preceding sections shall be awarded on request , regard being had to the entries in the individual \u2019s military service record book or certificates issued by the county military headquarters or the PERSON military unit .","( CARDINAL ) Requests for these benefits shall be addressed to the county pensions and social insurance funds . \u201d","\u201c For the purposes of the award of the benefits provided for by this PERSON , the National Pensions and ORG may request the national archives ... to compile , on the basis of the documents at its disposal , a list of the work brigades under the authority of ORG . \u201d","In a case similar to the present one , a former conscript who had performed forced labour in a military unit which did not come under the authority of ORG claimed eligibility under the provisions of PERSON no . DATE . When the county pension fund dismissed his claim on the ground that the PERSON applied only to conscripts in the work brigades , he appealed to ORG , which found in his favour .","Following an appeal by the county fund , the ORG upheld ORG judgment on the following grounds :","\u201c As the fact that the claimant was subjected to forced labour is not in dispute ... , there is no justification for withholding the benefits in question . To do so would be to create an inequitable situation , denying compensation to persons who performed military service in identical conditions and who , for purely formal reasons relating solely to the hierarchical structure to which their military units belonged , would thus be subjected to different treatment of a clearly discriminatory nature . \u201d","NORP In a number of other judgments , including those of CARDINAL DATE , DATE , DATE and DATE , DATE and DATE , DATE , CARDINAL , CARDINAL , DATE and DATE , CARDINAL , DATE , DATE and DATE and CARDINAL DATE , and CARDINAL May and DATE , the ORG delivered rulings to the same effect as that referred to above .","NORP However , in other judgments , and in particular those delivered on CARDINAL and DATE , CARDINAL DATE and CARDINAL , DATE and DATE , CARDINAL and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE , CARDINAL and DATE and DATE , and CARDINAL and DATE and CARDINAL DATE , it ruled to the opposite effect , holding that conscripts who had not performed their military service in a military unit coming under the authority of ORG were not covered by the provisions of PERSON no . DATE ."],"violated_articles":["14","6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110918","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":2012,"docname":"CASE OF NACIC AND OTHERS v. SWEDEN","importance":3,"conclusion":"No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Serbia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life)","judges":"Andr\u00e9 Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The first applicant is Mr LOC born in DATE , the second applicant is PERSON born in DATE , and the third and fourth applicants are their sons , born in DATE and DATE . They are currently in GPE .","The applicants are of GPE descent and lived in the village of GPE . Following the outbreak of war in DATE , the first applicant refused to participate in the fighting and hid from the armed forces . Due to this , the other applicants were subjected to threats and beatings by NORP military . Finally , they were driven out of their home by NORP militia . They fled by train to ORG , another village in GPE . On their way , they lost a bag containing their passports and identification papers . They hid at a friend \u2019s home , where they remained completely isolated from the world until they travelled to GPE in DATE . They had felt harassed in GPE because of their being GPE , but they had not been subjected to any persecution , allegedly due to their isolation . They applied for asylum and permanent residence permits on arrival .","On DATE ORG ( Migrationsverket ) rejected their applications . First , the ORG found that the applicants had not proved their identity . By submitting an UNMIK certificate on their residency in GPE , they had made it plausible that they were from GPE or GPE . However , the ORG found that neither the general situation in GPE nor that in GPE was such that it in itself constituted grounds for granting asylum . Also , the ORG found that the applicants were not to be considered as refugees or as in need of any other specific protection . In regard to the applicants\u2019 GPE ethnicity , the ORG noted that the first applicant \u2019s mother was NORP , that none of the family members spoke PERSON or had any contact with other GPE . In GPE , they had lived in NORP areas and had only socialised with NORP . In the ORG \u2019s view , it was difficult to conclude in these circumstances that the applicants would be seen as GPE upon return . Noting , furthermore , that they had not been subjected to any persecution because of their ethnicity previously , ORG concluded that they had failed to show that there was such a risk upon return .","The Board went on to assess whether the applicants\u2019 personal situation could constitute a ground for granting residence permits . The first , second and third applicants submitted that they suffered from medical problems .","The first applicant claimed that he was hypertonic . ORG found that this was a common medical condition and that he would not be subject to any medical risk if he were to return to GPE or GPE .","The second applicant claimed that she suffered from psychological problems and submitted a certificate issued by a nurse on DATE and extracts from her medical records covering the period from DATE to CARDINAL DATE . ORG found that the certificate had not been issued in accordance with NORP regulations and did not contain any prognosis . Therefore , it was not able to assess fully the gravity of her condition or what type of care she needed . Nevertheless , it found that her condition was not life - threatening and thus could not constitute a ground for granting a residence permit .","The third applicant claimed that he also suffered from psychological problems and submitted a medical certificate issued by a senior physician on DATE . ORG found that the medical certificate did not contain any diagnosis and that it therefore could not assess whether or not the applicant could receive appropriate medical care in GPE or GPE . ORG noted that treatment for depression was offered both in GPE and GPE . It further noted that the applicant \u2019s health had not improved after he had received treatment in GPE and that his condition would probably only improve if he were in a more secure and stable environment .","The applicants appealed to ORG ( Migrationsdomstolen ) in GPE where they held to their earlier submissions and added the following . The whole family moved to a children \u2019s home in DATE , when the authorities decided that the parents did not have the ability to take care of their children under the existing circumstances . The applicants also submitted several medical certificates regarding the first , second and third applicants . According to the certificates regarding the first and second applicants , there was a risk that they might commit suicide if they were to be expelled from GPE . Regarding the second applicant , it was stated that she had earlier attempted suicide and that she showed clear signs of post - traumatic stress disorder ( PTSD ) .","According to the certificate regarding the third applicant , issued on DATE by PERSON , specialist in youth psychiatry , he was in a very bad state on arrival in GPE . He was depressed and could hardly interact with other persons . During DATE , he was in contact with the Children and ORG ( Barn- och ungdomspsykiatrin ) in PERSON , which found that he suffered from depression . His condition improved when he started school and began to play football and also had a contact person assigned . However , after ORG decision in DATE , his depression became worse again . He isolated himself at home and became apathetic . In DATE , he attempted suicide by overdose of anti - depressants . He was committed to hospital , but discharged after DATE . When the family arrived at the children \u2019s home in DATE , he was in very poor condition , refused to eat solid food and stayed in bed most of the time . There would be a serious risk of another suicide attempt if he were to be expelled from GPE .","On DATE ORG rejected the appeal , upholding the ORG \u2019s reasoning and conclusion , adding the following . The third applicant would soon be DATE . Although he suffered from severe depressive devitalisation , it could not be assumed that his psychosocial development would be damaged if he were to be expelled from GPE . Also , psychiatric care was available in both GPE and GPE , at least for those who could pay . Therefore , neither the third applicant \u2019s health nor his personal situation were enough to justify granting him a residence permit . This reasoning also applied to the other applicants , who were all in better health . CARDINAL of the lay judges delivered a dissenting opinion finding that the third applicant \u2019s health constituted a sufficient reason to grant him a residence permit . Applying the principle of respect for family life , they also found that the rest of the family should be granted a right to stay .","The applicants proceeded to ORG ( Migrations\u00f6verdomstolen ) and submitted that they had been subjected to persecution in GPE due to their ethnicity and that this had caused their health problems . Their possibilities to receive proper care if sent back were limited , especially regarding the third applicant . Also , they would not have access to the health care system due to their ethnicity . Their health had deteriorated , as allegedly shown by several medical certificates submitted .","On DATE ORG delivered its judgment . Regarding the third applicant , the court found that the medical certificates showed that he suffered from severe mental illness , that he was unlikely to get better in the foreseeable future and that the necessary treatment presupposed that he was in a safe , secure and stable environment . Furthermore , it found that health care was available in both GPE and GPE , but that the applicant \u2019s health issues had arisen due to events taking place there . Considering all this , the court quashed the lower court \u2019s judgment and granted him a permanent residence permit . Regarding the other applicants , it upheld the lower court \u2019s reasoning and decision .","CARDINAL dissenting opinions were attached to the appellate court \u2019s judgment . In the first , CARDINAL of the judges held that the third applicant had recently turned DATE , that he therefore should be regarded as an adult and that his circumstances should be assessed separately from the other applicants . Taking this into account , and also the fact that proper health care would be available to him in GPE or GPE , the judge found that he had no right to remain in GPE . He should therefore be expelled together with the other applicants .","In the second dissenting opinion , another judge held that the medical certificates clearly showed that the first , second and third applicants in particular suffered from severe mental illness . The documents available also showed that the condition for the third applicant \u2019s well - being was a safe , secure and stable environment . Although he had turned DATE , the family \u2019s situation had to be taken as a whole . Therefore , all of the applicants should be granted permanent residence permits .","On DATE the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order . They submitted new medical certificates and argued that their conditions had worsened . On DATE ORG rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no impediments to the enforcement of the first , second and fourth applicants\u2019 deportation order . Moreover , as the third applicant had reached the age of majority , they could no longer be granted residence permits on account of family ties to him .","On DATE the applicants requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of the first , second and fourth applicants\u2019 deportation to GPE or GPE .","On DATE , the applicants submitted new medical certificates concerning the first , the second and the third applicants . The certificates were issued jointly by PERSON , specialist in youth psychiatry , ORG , psychologist and psychotherapist , and PERSON , trained social worker and psychotherapist and were dated DATE .","The medical certificate regarding the first applicant stated that he suffered from grave depression , insomnia and eating disorders . He had suicidal tendencies , but had not made any suicide attempts out of concern for his children . The diagnosis was grave depression and complex PTSD . According to the medical certificate regarding the second applicant , her condition was serious and possibly fatal and she would not be able to cope with a separation from her son . The prognosis was that all treatment presupposed a safe , secure and stable environment . She was diagnosed with grave depression , depressive devitalisation and complex PTSD . The medical certificate regarding the third applicant stated that he was in need of professional therapy to be able to deal with his traumatic experiences . It was not possible for him to cope without the support of his family . If his parents and his brother were to be returned to GPE or GPE , there was a grave risk that his depression would become worse and that his rehabilitation would be compromised . He was diagnosed with grave depression , depressive devitalisation and complex PTSD .","On DATE , the applicants submitted new medical certificates issued by PERSON and dated DATE . According to these , the first applicant had been feeling slightly better since the family had moved from the children \u2019s home to an apartment in GPE in DATE . However , he still suffered from feelings of futility and despair . The second applicant had been feeling better since the ORG \u2019s decision not to deport them until further notice . However , she had recently been feeling worse again due to her fear of a possible deportation . She still suffered from severe depression and PTSD and was worried about the third applicant \u2019s health . The third applicant had gradually been feeling better since he had been granted a residence permit . However , his positive development had been halted by the threat of disruption of the family and he showed clear signs of falling into depression again . The fourth applicant had , due to his young age , been spared the traumatic experiences in GPE . However , according to the medical certificate , a disruption of the family could be expected to cause him a severe trauma .","The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utl\u00e4nningslagen , DATE hereafter referred to as \u201c the Aliens Act \u201d ) , as amended on DATE . The following refers to LAW in force at the relevant time .","LAW , LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term \u201c refugee \u201d refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By \u201c an alien otherwise in need of protection \u201d is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment LAW , LAW , of LAW ) .","NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen \u00f6mmande omst\u00e4ndigheter ) to allow him or her to remain in GPE ( LAW , section CARDINAL of LAW ) .","As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of LAW ) .","Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .","It should also be noted that LAW , LAW defines a child as a person DATE .","Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .","ORG , states , inter alia , the following regarding the situation in GPE :","\u201c Institutional and societal discrimination persisted against ORG , ORG , and NORP communities in employment , education , social services , language use , freedom of movement , the right to return , and other basic rights . Members of the GPE PERSON and NORP communities also complained of discrimination , while GPE PERSON and GPE Montenegrin communities were nominally acknowledged through appointment of their representatives to the GPE president \u2019s ORG . GPE ORG leaders continued to complain that many of their community members continued to depart the country as a result of discrimination and , increasingly , an absence of economic opportunities . Members of the GPE , NORP , and NORP communities were subject to pervasive social and economic discrimination ; often lacked access to basic hygiene , medical care , and education ; and were heavily dependent on humanitarian aid for survival . Reports of violence and other crimes directed at minorities and their property persisted . There were clashes between groups of GPE NORP and GPE NORP during DATE . \u201d","The International Organisation for Migration \u2019s report \u201c Returning to GPE , country information \u201d from DATE provides the following :","\u201c The public health care system in GPE is still in a phase of post - war reconstruction . The rehabilitation of the mental health system is one of the priorities of the PERSON [ ... ] . However , the system faces many challenges . The number of mental health professionals is very limited and the present educational system for mental health is underdeveloped . Existing institutions also have limited access modern know - how in psychiatry . Nevertheless , there is a favourable environment for accelerating reforms , supported by ORG DATE of the MoH.","The mental health needs of the severely traumatised population are very high but there is CARDINAL psychiatrist for CARDINAL inhabitants and CARDINAL mental health worker for CARDINAL inhabitants . There are CARDINAL clinical psychologists and a small number of social workers . The psychiatric treatment provided is biologically - oriented , using pharmaceuticals and hospitalisation as the main , if not the only , tools .","This sector suffers also from the destruction of medical equipment during and since the conflict in DATE . Treatment of post - traumatic stress disorder ( PTSD ) , which became a matter of the greatest importance after the wars in GPE and the turmoil in GPE in DATE , is in desperate need of improvement . Some calculations suggest that CARDINAL people ( CARDINAL of the population ) are suffering from PTSD . The mental health care system in GPE simply does not have sufficient resources of people or facilities to respond to the need for treatment for mental health disorders .","Because of the lack of clinical psychologists and psychiatrists , there is almost no time for psychotherapy . The extreme lack of beds for chronically mentally ill people , and the lack of forensic psychiatry services aggravate the problem . There is CARDINAL child psychiatrist in the public health service to provide adolescent mental health services for a population that is overall very young . Drug addiction is also a growing problem without an adequate solution because of the lack of specialised professionals and institutions .","However , with international support , new facilities , called \u201c ORG , have been opened in ORG , ORG , PERSON , PERSON \/ a and ORG . These facilities offer protected apartments for people with minor mental health problems , as well as therapeutic and psycho - social support . In DATE the new ORG ( ICPU ) of the ORG in LOC became operational . This facility is intended to offer psychiatric treatment to people with severe mental health problems . ORG and ORG ( GPE ) will provide training support to the ICPU .","ORG offer community - based outpatient mental health services and can be found in the following cities : ORG , PERSON \/ a , PERSON , PERSON , PERSON , LOC , Gjilan \/ Gnjilane","There are neuropsychiatry wards at general hospitals for acute psychiatry in : PERSON , PERSON , ORG , PERSON \/ a , ORG , LOC In LOC the neuropsychiatry ward is at the ORG . The ward in LOC provides CARDINAL acute psychiatric beds , while wards in other regions provide around CARDINAL beds for psychiatric patients . In addition , there are special institutions ( SSI ) in LOC and ORG . These institutions come under the mandate of ORG ( ORG ) . They were intended to provide services to a specific population with severe learning difficulties during the previous regime but they ended up accommodating CARDINAL people with psychiatric problems . The mental health services , through the programme of protected apartments , are supporting the de - institutionalisation of patients in Gjilan \/ Gnjilane and Gjakov\u00eb \/ Djakovica , which are designed for the rehabilitation of long - term psychiatric patients . The ORG has its own programme to improve the quality of life in the institutions . \u201d","The Non - Governmental Organisation Praxis report \u201c Access to rights and integration of returnees on the basis of readmission agreements , analysis of the main problems and obstacles \u201d provides , inter alia , the following regarding the health care for GPE in GPE :","\u201c Health care","In order for a person in GPE to exercise the right to health care , he \/ she needs to be registered in the system of mandatory health insurance and to possess a health booklet . In addition to the proof of insurance ( employment contract , decision on the right to pension , etc . ) , one needs to present an ID card or a birth certificate ( for minors ) in order to register for insurance and issuance of a health booklet . The request is submitted at the branch office of ORG ( ORG ) as per place of permanent \/ temporary residence . ORG identifies GPE , who do not have a registered permanent \/ temporary residence in GPE , as a category of persons for whom contributions are paid from the budget of the Republic . However , the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance in effect until DATE stipulated that when applying for registration to health insurance , GPE must give a statement on belonging to this population , and the proof of temporary residence registration in addition to it .","As the said regulation was in contravention of ORG , ORG sent a request to ORG to assess the legality of this regulation . In DATE , the Rulebook on Amendments to the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance stipulating that the GPE who do not have permanent \/ temporary residence registered on the territory of the municipality they truly live in , may register health insurance by giving only a statement about the address at which they truly live in addition to the statement on belonging to the GPE minority . The implementation of these changes in the LAW was not uniform . Partly due to inadequate levels of information of employees in ORG branch offices throughout GPE , partly due to resistance to the concrete novelties and lack of sensitivity , the branch offices in certain municipalities refused to enable GPE to exercise the right to health insurance and issue health booklets under the above stated conditions . On behalf of its clients , ORG intervened repeatedly and pointed to the changed regulations , managing to have its clients registered . Also , as the impossibility to register permanent residence makes obtaining ORG cards impossible , the ORG branch offices request that GPE submit at least birth certificates instead of ID cards . Returnees on the basis of the readmission agreements with travel documents are allowed only access to urgent medical care for which the Republic budget funds are allocated , until regulation of the status of an insured person or until the expiry of the validity of the travel document . Returnees who fail to obtain ID cards or birth certificates for children born within the period of validity of the travel document ( e.g. re - registration into registry books or registration in birth registry book abroad was not done ) will remain outside the health care system . Only exceptionally will some ORG branch offices issue health booklets to undocumented persons and establish a provisional citizen \u2019s unique personal number . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3","8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83922","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF K.\u00d6. v. TURKEY","importance":4,"conclusion":"No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)","judges":"","text":["\u201c On TIME DATE , I was tricked into opening the door as they said that they were PERSON and \u015eefik , my brothers - in - law . The CARDINAL people who entered the house said they were from the anti - terrorism branch and they pulled my headscarf over my mouth . They were carrying PERSON . They asked for my daughter and said they were going to kill me and my children ... CARDINAL of them spoke NORP and said that he was from GPE . The one who was tall and thin , with white skin and black hair , strangled me with an iron cord . CARDINAL of them , who I can not describe , took off my baggy trousers and pants . I fainted from shame and fear when the other inserted a truncheon into my sexual organ ... When I woke up they were searching the house . They found money underneath the bed and took it with them ... When my son arrived he took me to a private doctor . This doctor did not draw up a report but gave me medicine and an injection . As I was not getting better he took me to the doctors at FAC [ foundation ] ... These same CARDINAL people came to my house on DATE and said that it was not good that I had complained about them ... they called their superior and a police patrol came to pick us up . My son GPE was next to me ... At the police station , an officer named PERSON was nice to us ... I was sent to the hospital . The doctor said , without examining me , that there was nothing wrong with me . After this date I was not harassed . \u201d","A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE ( nos . CARDINAL and QUANTITY , \u00a7 \u00a7 CARDINAL , DATE ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111840","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2012,"docname":"CASE OF \u0130BRAH\u0130M G\u00dcRKAN v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - finding of violation sufficient","judges":"Fran\u00e7oise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque","text":["At the time of the events the applicant was serving in ORG . On DATE the military prosecutor filed an indictment against the applicant with ORG ( PERSON ) . He accused the applicant of wilfully disobeying his superior contrary to section CARDINAL of LAW .","On DATE ORG , composed of a military officer with no legal background and CARDINAL military judges , found the applicant guilty as charged and sentenced him to DATE and CARDINAL days\u2019 imprisonment .","On DATE ORG rejected the applicant \u2019s appeal . The applicant stated that he learned of this decision on DATE when he was summoned to the prosecutor \u2019s office . The applicant served his prison sentence between DATE and DATE .","The relevant provisions of the LAW provide :","\u201c Judicial power shall be exercised by independent courts on behalf of ORG . \u201d","\u201c In the performance of their duties , judges shall be independent ; they shall give judgment according to their personal conviction , in accordance with the LAW , statute and the LAW .","No organ , authority , officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars , or make recommendations or suggestions to them .","... \u201d","\u201c Judges ... shall not be removed from their office or compelled to retire without their consent before the age prescribed by LAW . \u201d","\u201c The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve as regards their non - judicial duties shall also be regulated by law ... \u201d","\u201c Military courts shall be composed of CARDINAL military judges and a military officer . \u201d","In a decision dated DATE and published in ORG on DATE , ORG examined the independence and impartiality of military courts on account of the presence of a military officer on the bench . ORG TIME pointed out that the officer sitting on the bench of the military criminal court was appointed on a case by case basis by his hierarchical superiors and continued to perform his other military duties while also acting as a judge . Noting that the military officer remained in the service of the military authorities , ORG found that military courts could not be considered as compatible with the principle of judicial independence guaranteed under LAW . As a result , ORG decided to repeal section CARDINAL ) of PERSON no . CARDINAL on the Composition and Functioning of Military Courts . The decision of ORG became effective DATE after its publication in the official gazette ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-21943","languageisocode":"ENG","respondent":"CHE","branch":"ADMISSIBILITY","date":2001,"docname":"BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicants are PERSON , PERSON , PERSON and PERSON , all NORP citizens who live in PERSON and PERSON in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE . The applicants were among the CARDINAL applicants in the previous PERSON and Others v. GPE case ( see judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV , pp . CARDINAL et seq . ) .","The applicants live in the alarm zone CARDINAL within a radius of CARDINAL from the nuclear power station at GPE in GPE .","On DATE , ORG ( Bundesrat ) granted to the GPE nuclear power station the operating licence for a limited period , i.e. until DATE . This decision of ORG was contested before the ORG and led to the judgment in the Balmer - Schafroth and Others case ( cited above ) .","In DATE the company which operated the nuclear power station , ORG , maintaining economic reasons , filed a request to cancel the limitation of the period of operation , and to obtain a licence for an unlimited period . The application was published in ORG , whereupon CARDINAL persons and CARDINAL organisations filed objections thereto .","ORG ( Eidgen\u00f6ssisches Verkehrs- und Energiewirtschaftsdepartement ) then requested ORG , a NORP association , to examine in particular the relevance of certain cracks in the inner nuclear casing ( Kernmantel ) of the nuclear power station . In its expert opinion of DATE , numbering CARDINAL pages , the ORG concluded that the cracks endangered neither the possibility to turn off , or to cool , the reactor . The calculations of the growth in the cracks disclosed that in DATE the security would only insignificantly be reduced . Moreover , the producer had considered all possible accident combinations . The report also noted that the control programs and methods were such that they could detect such cracks and determine their size , and to do so within a time - limit before the cracks became dangerous .","Following this expert opinion , various persons applied to ORG for a complete examination of all welded joints of the nuclear casing . The \u201c GPE association \u201d , an association aiming at the closure of the GPE nuclear power station , requested PERSON , a physicist , to comment on the ORG expert opinion .","In his reply , dated DATE , the expert PERSON concluded that the \u201c size of the cracks may [ have been ] substantially underestimated \u201d , and that so far the effects of the cracks in the nuclear casing upon the security of the nuclear power station had only insufficiently been examined .","By decision of CARDINAL DATE ORG dismissed the various objections and prolonged the operating licence for DATE , i.e. until DATE . The decision considered that due to various modernisations the GPE nuclear power station had meanwhile become more secure than when it had been constructed . There were no defaults of a technical nature which would exclude a secure operation of the station . ORG ( GPE f\u00fcr die ORG ) had given the go - ahead , and the ORG expert opinion concluded that the cracks found did not impair the security .","The decision also noted that LAW ( Atomgesetz ) did not grant a right to an unlimited period of operation . In view of a popular consultative referendum in the GPE of GPE in DATE , in which the populace had in fact expressed itself against the GPE nuclear power station , ORG decided to grant a license for only a limited period of DATE .","On DATE , the \u201c GPE association \u201d wrote to ORG , requesting a public hearing of ORG as to the conditions for a possible closure of the GPE power station . By letter dated DATE , Mr PERSON , a ORG PERSON ) , refused the request . Annexed to the letter was a statement of ORG dealing , inter alia , with the issue of an earthquake in the GPE area . It was considered that the probability of damage to the nuclear reactor lay between ( CARDINAL - CARDINAL)xCARDINAL - DATE , a figure based on all accidents of nuclear power stations of the world resulting from earthquakes , and that indeed , the GPE nuclear power station had been constructed to withstand earthquakes . The probability of a plane crash on the nuclear power station was negligibly small .","On DATE the applicants filed with ORG a request for reconsideration of its decisions of DATE and CARDINAL DATE .","Under LAW ( a ) of the DATE LAW , a licence from the ORG is required for the construction and operation of nuclear installations and for any changes in the purpose , nature or scale of such installations . LAW provides that a license must be refused or granted subject to appropriate conditions or obligations if that is necessary in order , in particular , to protect people , the property of others or important rights . LAW provides that ORG or a body designated by it decides license applications . No appeal lies against its decisions . Section CARDINAL stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision ; ORG and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order , in particular , to protect people , the property of others and important rights ; they are also entitled to supervise compliance with these instructions .","Under ORG case - law , the safety of nuclear power plants can be considered by the ORG only in the context of its licensing procedures ( see judgments of ORG ( BGE [ Bundesgerichtsentscheide ] CARDINAL GPE , p. CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86635","languageisocode":"ENG","respondent":"ALB","branch":"ADMISSIBILITY","date":2008,"docname":"NATIONAL NOTARY CHAMBER v. ALBANIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant is ORG ( PERSON ) ( \u201c the applicant organisation \u201d ) . The applicant organisation is represented before the ORG by its President and representative PERSON . PERSON .","organisation , may be summarised as follows .","The applicant organisation was established by Law no . DATE ( \u201c LAW \u201d ) which was amended by LAW CARDINAL of DATE and PERSON no . CARDINAL of DATE .","Prior to DATE a public notary in GPE was considered a public servant and the role and profession of notary were not recognised as a liberal profession .","On an unspecified date the applicant organisation became a member of ORG , UINL ) .","On an unspecified date the applicant organisation lodged a constitutional complaint with ORG , complaining that PERSON no . CARDINAL of DATE was unconstitutional . According to the applicant organisation , the PERSON gave the Minister of ORG control over the exercise of the profession of notary which was incompatible with the nature of liberal professions , thus infringing its rights to freedom of association . It argued that the character of its organisation was akin to that of non - profit - making organisations . It maintained that the new PERSON had applied rules applicable to public servants to the profession of notary . In particular , sections CARDINAL \u00a7 DATE , CARDINAL ( f ) , CARDINAL \u00a7 CARDINAL , QUANTITY and DATE , CARDINAL \u00a7 CARDINAL and DATE provided for the most important decisions taken by ORG to be approved by the Minister of ORG , thus stripping it of its decision - making powers and infringing its independence . According to the applicant organisation , the PERSON gave the Minister of ORG powers that went beyond his supervisory role , subjecting notaries to hierarchical dependence . Lastly , the applicant organisation contested the age - limit imposed by the PERSON on the exercise of the profession of notary as at variance with the principle of the exercise of liberal professions .","On DATE ORG dismissed the applicant organisation \u2019s complaint and upheld the constitutionality of the PERSON contested . The court assessed that the basis for the restrictions on the exercise of the profession of notary , in contrast with other liberal professions , had to be found in the public effects of notaries\u2019 actions and in the control that the ORG needed to exercise over notaries\u2019 services in order to guarantee the interest of the community .","\u201c ORG decides on :","( a ) the compatibility of a law with the LAW or international agreements as provided for LAW CARDINAL ...","ORG can be seized only at the request of ... ( f ) political parties and other organisations ...","The entities designated in the first paragraph , letters ... f ... can lodge applications only on issues connected with their interests . \u201d","Pursuant to LAW of DATE , as amended in DATE , the profession of notary in GPE was considered a liberal profession and notaries in exercising their profession were independent and bound by the legal provisions in force . For the purpose of exercising his duties , a notary was equivalent to a public servant and enjoyed protection under the law .","The LAW sets forth the structure and bodies of the notary profession . It provides for notaries to be organised at district and national level . All practising notaries engaged within a given district must be members of the district notary chamber . The LAW provides that a notary chamber is a legal entity and as such is to be registered in accordance with the procedures prescribed for registering a legal entity . The governing bodies of district notary chambers are the general assembly of all practising notaries in the district and the council of notary chambers . The LAW describes in detail the powers of each of these bodies . Disciplinary measures such as : a reprimand , a reprimand with a warning of dismissal , and a fine , are taken by district notary chambers . The disciplinary measure of dismissal is taken by the Minister of ORG .","Section CARDINAL of the LAW establishes ORG , which is composed of notaries elected by the general assembly of district notary chambers . The central bodies of ORG are the general assembly of representatives of district notary chambers , the national council and the president . The tasks of the president and the national council are defined in ORG statute , which is approved by its general assembly . The LAW sets forth the following chief tasks of ORG : a ) to coordinate the activities of all notary chambers at district level ; b ) to represent and defend the interests of district notary chambers before state authorities and other institutions ; c ) to draft a Professional Ethics Code to be approved by the Minister of ORG ; d ) to approve the standard statute ( statuti tip ) of district notary chambers and their internal rules of procedure ; e ) to draw up and keep national and regional registers of notaries ; and f ) to determine the amount of funds to be allocated to the national council for the performance of its duties .","The LAW describes the procedure for entering and practising the notary profession . Thus , before engaging in private practice an incumbent notary has to sit an entrance examination whose overall organisation is run directly by the Minister of ORG . A notary must also obtain a licence issued by the Minister of ORG prior to entering professional practice . The appointment , transfer and removal from office of a notary are made by order of the Minister of ORG . Before assuming their duties notaries take an oath before the Minister of ORG or a duly authorised person appointed by the Minister . Under the DATE LAW from office of a notary was not conditional on age .","The LAW also contains provisions governing , inter alia , the rights and obligations of notaries . ORG , having regard to the opinion of ORG and ORG , determines the schedule of notary fees . LAW stipulates that ORG supervises notaries\u2019 [ legal ] performance .","In DATE ORG enacted PERSON no . CARDINAL of DATE , which amended several sections of LAW . In particular , the new PERSON strengthened the role of the Minister of ORG . Sections CARDINAL \u00a7 CARDINAL , CARDINAL ( f ) , CARDINAL \u00a7 CARDINAL , QUANTITY and DATE , CARDINAL \u00a7 CARDINAL and DATE provide for the most important decisions to be adopted by the Minister of ORG , having regard to the written opinion of ORG . Most notably , it stipulates that the transfer of a notary to another district must be authorised by the Minister of ORG . It empowers the Minister of ORG to initiate disciplinary proceedings and decide on the disciplinary measures to be taken , even though the notary chamber may refuse to impose such a measure .","Section CARDINAL introduces an upper age limit on the notary profession . A notary \u2019s licence will thus be removed when that notary reaches DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83910","languageisocode":"ENG","respondent":"LTU","branch":"ADMISSIBILITY","date":2007,"docname":"PELECKAS v. LITHUANIA","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the GPE region . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is a veterinary doctor . On DATE , while driving to his work place in the countryside , the applicant was stopped by CARDINAL policemen , GPE and GPE . The policemen asked for the applicant \u2019s papers . Having established that the applicant had no driving licence , ORG took the wheel of the applicant \u2019s car . ST followed him in the police car , with the applicant sitting in the back seat . They drove QUANTITY and stopped on a side road in the countryside .","The applicant presented the following account of the subsequent events :","The policemen asked the applicant to take an alcohol test . The applicant requested that they replace the tip of the alcotest ( breath - analyser ) , as it might have been used by another person . This request allegedly infuriated the policemen . It appears that the applicant nonetheless took the test , and he was found not to be under the influence of alcohol .","ORG made a written record of an administrative offence , warning the applicant that he would be fined in the amount of LTL CARDINAL,CARDINAL ( about ORG CARDINAL ) for driving without a licence . The applicant having commented on the allegedly disproportionate amount of the fine , GPE hit him on the neck .","The applicant jumped out of the police car , attempting to escape . The policemen pursued him and apprehended him by using tear - gas . The applicant was then brought to the ground by a strong blow to the face by GPE . The policemen then continued to beat the applicant by kicking him on his thighs , elbows , chest , back , abdomen and crotch . The policemen having subsequently handcuffed the applicant while he was lying face - down on the ground , GPE sat on him and inflicted several blows to his head . At the same time , GPE kicked his thigh . The applicant was then taken to the police station , where the policemen continued beating him .","After the applicant \u2019s release from the police station TIME , he immediately went to the hospital where he was treated .","Upon the applicant \u2019s request , on DATE , he was examined by a medical expert . The expert found a scratch on the applicant \u2019s vertex ( CARDINAL\u00d7CARDINAL PERSON ) and forehead ( CARDINAL PERSON ) , bruises on his right cheek ( QUANTITY ) and left forearm ( CARDINAL PERSON ) , and a fracture of his left elbow . The expert noted that the injuries had been made by hard , blunt objects . The fracture resulted in a long - term impairment of the applicant \u2019s health .","On DATE the applicant filed a complaint against the police , alleging ill - treatment . On the same date the prosecution took his statement and ordered an expert medical examination , which took from DATE . The expert mentioned the same injuries as those in the examination of DATE , noting in addition that the applicant had a scratch on his upper lip .","The expert opined that the injuries had been made by CARDINAL impacts or blows . He could not unequivocally identify the mechanism whereby the injuries had been incurred . He noted that the fracture of the applicant \u2019s elbow and the bruise on his left forearm could have resulted either from kicking or twisting the applicant \u2019s arms behind his back , or by him falling on the ground and hitting his arm against a hard surface . The scratch on the applicant \u2019s forehead could also have been the result of the applicant hitting the ground with his head .","On DATE criminal proceedings were instituted against GPE , who was charged with abuse of office ( LAW ) , by causing the applicant medium bodily harm . In particular , GPE was suspected of having kicked the applicant while he was lying on the ground , and having hit the applicant on his head . The applicant took part in the proceedings as the victim . He did not claim pecuniary or non - pecuniary damages .","The charges brought against GPE were withdrawn , there being no indication of a crime having been committed by him . The applicant did not appeal against that decision , and GPE then took part in the other proceedings as a witness , along with several other eyewitnesses to the events .","From DATE to DATE , the medical expert examination was repeated upon the initiative of the prosecution . The expert mentioned the same injuries as those determined at the last examination and reiterated that the injuries had been made by CARDINAL impacts or blows . He further explained that the scratches on the applicant \u2019s forehead , vertex and lip , as well as the bruises on his right cheek , could have been caused either by the administration of blows or by the applicant hitting himself against hard objects . As to the fracture of his elbow , the expert opined that it was \u2018 unlikely\u2019 that it could have been the outcome of hitting or falling , but had \u2018 most likely\u2019 occurred when the arm of the applicant had been twisted behind his back in order to handcuff him . The bruise on his left forearm could have appeared after the tissue of the elbow had been injured by the fracture .","On DATE the prosecutor requested the applicant to undergo a psychiatric examination , referring to the possibility that , during the incident , he might have suffered epileptic seizures . The applicant was brought to the clinic , but the examination did not take place due to the absence of a qualified expert . Eventually , no examination was carried out , as the applicant refused to report to the clinic .","The investigation into the incident included the questioning of CARDINAL witnesses , several confrontations , the on - site verification of evidence , the examination of the police car allegedly damaged by the applicant \u2019s resistance and other measures .","On DATE ORG acquitted GPE , holding that his actions had not gone beyond those necessary in the circumstances . It accepted the version of the events given by the policemen . In particular , it was established that the applicant had been the first to attack GPE , hitting him on the nape of the neck while sitting in the back seat of the police car . GPE \u2019s version was corroborated by the medical evidence that he had sustained a bruise as a result . Thus , it was considered that the applicant had himself provoked the use of force by the policemen , who had then taken the applicant out of the car and had attempted to handcuff him , the applicant having actively resisted the lawful arrest . The applicant \u2019s resistance warranted the use by the policemen of the \u201c special measures \u201d foreseen in LAW , in order to handcuff him . The court then referred to the experts\u2019 conclusion that the fracture of the applicant \u2019s elbow could have occurred as a result of his arms being pulled and twisted backwards for handcuffing . The bruises on his face and head could have been the result of the applicant actively resisting the police , whilst falling down and hitting himself against a hard surface . The court did not find it established that the applicant had been kicked or hit while lying on the ground or after being handcuffed . The court also took account of the video recording , taken by the ORG camera in the police station , showing the applicant \u2019s continued resistance . The court \u2019s conclusions were essentially based on the submissions of the accused officer , GPE , as well as those of GPE .","The applicant and the prosecutor appealed . On DATE ORG rejected their appeal . The court noted that the applicant had been the first to have recourse to violence , the subsequent use of force by GPE being the consequence of the applicant \u2019s aggressive behaviour . The court also held that there was no evidence that GPE had purposefully injured or tortured the applicant when trying to handcuff him . It further reiterated the lower court \u2019s conclusions as to the origin of the applicant \u2019s injuries . Finally , the court noted that the different version of the incident given by other witnesses might have been distorted by their emotional reaction to the events .","ORG and the applicant lodged cassation appeals . The prosecution argued in particular that the policemen \u2019s version , according to which the applicant had assaulted GPE , was not credible . The applicant had been sober , he had not disputed the fact of driving without a licence , and he had cooperated with the policemen while they wrote up the administrative offence . Moreover , the applicant had been alone . Therefore it was highly dubious that he could have assaulted CARDINAL policemen . The courts had unreasonably dismissed the submissions of CARDINAL independent witnesses , and based their conclusions on the allegations of GPE and GPE , ignoring the fact that they both had a clear interest in the outcome of the proceedings .","On DATE ORG quashed the appellate decision , remitting the case for a new examination by the appeal court . ORG noted inter alia :","\u201c [ T]he trial court unconditionally believed only the version of the defendant and his colleague , and dismissed the submissions of other witnesses on the ground that they had been contradictory . However , no essential contradictions were specified ...","The courts failed to assess fully whether the policeman had overstepped the legitimate limits of the use of force . LAW authorises the use of force against persons who refuse to submit to the lawful requirements of the police . ORG can be used only insofar as it is necessary to execute a professional duty , and only after all other possible means have proved themselves to be ineffective . LAW authorises the use of \u201c special measures \u201d ( specialiosios priemon\u0117s ) only in order to stop an activity giving rise to a danger to society , or to an arrest , bringing the person engaged in such activities to the police station . \u201c Special measures \u201d may be used only having regard to the nature of the offence , the personality of the offender and the particular circumstances of the situation . There is also an obligation to make efforts to avoid severe consequences , as well as to warn the person before using such measures against him . The courts did not consider the actions of GPE in the light of the requirements of the above law , or those of the Rules on Road Traffic Police [ of CARDINAL DATE ] ; the courts failed to give reasons for their conclusions regarding the right to use force , its aims and limits .","[ The applicant and GPE ] gave different accounts of the events that led to the fight . If GPE \u2019s version - that the applicant had violently resisted police demands - were accepted as truth ... there is no doubt that criminal proceedings should have been instituted against him . However , that was not the case . Nor was [ the applicant ] held liable for an administrative violation ...","The court of first instance acknowledged that force had been used against the applicant by GPE , in the form of applying \u201c special measures \u201d . However , the courts had failed to specify which particular measures had been used . GPE had submitted ... that he had only pushed the applicant to the ground once , had twisted his arms behind his back , and had put the handcuffs on with the assistance of GPE . This ... use of force clearly contradicts the evidence given by the medical experts , who had established that the injuries to the applicant had been caused by way of CARDINAL blows .","The fracture of the elbow might have been caused ... by twisting the arm behind the applicant \u2019s back and putting on the handcuffs . The applicant had also sustained other injuries . However , the courts failed to give a reasonable explanation as to the way in which the other injuries may have been caused . Assuming [ the truth of ] GPE \u2019s version that he had only brought the applicant down once , it remains unclear how a wide scratch on the applicant \u2019s vertex and the injuries [ elsewhere on his body ] were caused , as they must have originated from separate actions . [ The applicant \u2019s version of the cause of those injuries ] does not contradict the submissions of witnesses . Still , the court refused to believe them , and dismissed their submissions without giving a reasonable explanation , notwithstanding the fact that none of those witnesses had had any interest in giving false evidence . \u201d","On DATE ORG examined the case at the appeal level , upholding GPE \u2019s acquittal . On DATE ORG dismissed the applicant \u2019s cassation appeal . The courts concluded that the applicant had assaulted GPE by hitting him on the nape of the neck , and that the policemen had properly exercised their right to use force . Moreover , it was deemed highly improbable that GPE could have hit the applicant while he was in the back of the police car .","The courts recognised that ORG had not used excessive force , and that the applicant had not been beaten after being forced to the ground and handcuffed . They concluded that the evidence had been insufficient to establish GPE \u2019s guilt . The submissions of the applicant were considered incoherent and unreliable . While the applicant had stated during his early questioning that he had been hit and kicked on various parts of his body , subsequently he had adjusted his version in accordance with the results of the expert examinations . The evidence given by other independent witnesses was also dismissed as being too incoherent to be relied on .","The following version of the events of DATE and their legal assessment were established by the courts .","The applicant used violence against GPE in the police car , while the latter was performing his official duty . He refused to obey the order to get out of the car . When the policemen were trying to take him out by force , the applicant was kicking with his legs , breaking a door - handle . Nor did he yield after being taken out of the car . Instead , he grabbed the policemen \u2019s clothes and attempting to hit GPE in the face . He was thus brought down close to the police car , his hands being twisted behind his back , and he was handcuffed . As a result , the applicant sustained bodily injuries . ST did not cause any injury deliberately , other than to effect the applicant \u2019s submission . The use of combat action ( kovini\u0173 veiksm\u0173 panaudojimas ) in these circumstances was provoked by the unlawful actions of the applicant . There were no other measures which the officers could have employed in view of the applicant \u2019s resistance . In these circumstances , GPE did not exceed his authority as a police officer .","The courts also explained the origin of the injuries sustained by the applicant in the following way :","( a ) The scratch on the applicant \u2019s vertex ( CARDINAL\u00d7CARDINAL PERSON ) must have resulted from the applicant hitting his head on the ground during the conflict ; it may not have been the outcome of direct blows with a fist , as alleged by the applicant , because in that case he would have sustained larger bruises .","( b ) While the experts were not able to give a definite answer as to the origin of the fracture of the applicant \u2019s elbow , they admitted that it may have been the result of GPE and GPE twisting his arms behind his back in order to handcuff him . The version of the applicant being kicked was thus dismissed .","( c ) The bruises on the applicant \u2019s cheek ( QUANTITY ) and forehead ( CARDINAL PERSON ) could also have been the result of the applicant having been forced to the ground , in the course of his resistance to the policemen while they were trying to handcuff him . This version did not contradict the results of the medical examinations . Thus the applicant \u2019s allegation that he had suffered direct blows to his face was refuted .","( d ) Insofar as the applicant had alleged that he had been hit and kicked on other parts of the body , no signs of other blows were detected in support of these submissions .","It appears that no charges were brought against the applicant for his refusal to submit to the lawful requirements of the police , despite the fact that a report to this effect had been filed by officers GPE and GPE right after the incident .","LAW as applicable at the material time provided :","\u201c ... If the demands of a police officer are not complied with , the officer shall have the right to use force ( panaudoti prievart\u0105 ) , but only to the extent necessary to perform his \/ her official duties and only after all measures of persuasion have proved to be ineffective . ... \u201d","LAW envisaged the right of the police officer to order the offenders to discontinue their unlawful activities , failing which and provided all measures of persuasion were exhausted , the use of force was permitted .","Article CARDINAL of LAW further stated :","\u201c ... The police shall use special measures ... , in order to discontinue actions that endanger the public or to apprehend a perpetrator of such actions and bring him \/ her to the police station . ...","When using special measures ... an officer shall take into account the nature of the offence , the personal features of the offender and other particular circumstances of the situation . ... [ T]he police officers shall try to avoid detrimental consequences .","Before using special measures ... , and if the circumstances allow , the person concerned shall be given a warning ... \u201d","Article CARDINAL of LAW listed as \u201c special measures \u201d , inter alia , handcuffs , combat action ( kovini\u0173 veiksm\u0173 panaudojimas ) and gas . It specified that :","\u201c The police shall have the right to use handcuffs in order to apprehend the perpetrator of dangerous actions and to take him \/ her to the police station , when there are grounds to believe that he \/ she can resist or try to evade the arrest .","Handcuffs can be used when ... the actions of a person cause danger to him \/ herself or other people .","Combat actions can be used in order to detain a person who has committed dangerous actions or to take him \/ her to the police station , when such a person resists arrest or tries to evade it , as well as in cases where an offender intentionally refuses to obey the lawful requirements or resists the lawful actions of the police . ...","Gas can be used [ inter alia ] during the arrest ... \u201d","Article CARDINAL \u00a7 CARDINAL of LAW as then in force punished abuse of office ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101536","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2010,"docname":"K\u00d6PKE v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The applicant started working as a shop assistant in DATE . From DATE until her dismissal on DATE she was employed as a shop assistant and cashier in a supermarket in GPE . She has been unemployed since then .","The applicant 's employer noted in DATE that there were irregularities concerning the accounts in the drinks department of that supermarket , in that the sum of the till receipts for empty deposit bottles which had been printed out exceeded the total value of empty deposit bottles received by the supermarket . It suspected the applicant and another employee of having manipulated the accounts .","DATE and DATE the applicant 's employer , with the help of a detective agency , carried out covert video surveillance of the supermarket 's drinks department . The camera covered the area behind the cash desk including the till , the cashier and the area immediately surrounding the cash desk . The detective agency made a video and examined the data obtained . It drew up a written report and produced several photos from the recording , which it sent to the applicant 's employer together with CARDINAL copies of the video ( CARDINAL concerning the applicant and CARDINAL concerning the other employee monitored ) .","On DATE the applicant 's employer dismissed the applicant without notice for theft . The applicant was accused of having manipulated the accounts in the drinks department of the supermarket and of having taken money ( CARDINAL euros during the period in which she had been filmed ) from the tills for herself which she had hidden in her clothes .","On DATE the applicant , who was represented by counsel throughout the proceedings , brought an action in ORG against her employer , requesting that the court find her dismissal invalid . She further claimed compensation for non - pecuniary damage she had suffered as a result of the covert video surveillance and requested to be given the videotapes , including all copies made thereof . She was granted legal aid for these proceedings .","The applicant contested having manipulated the tills or having stolen money and submitted that she had only put tips she had received from customers into her pockets . In accordance with the supermarket 's practice , she had later put these tips into a separate till where all tips received by supermarket staff were collected . She further objected to the use of the covert video surveillance , arguing that this surveillance had breached her right to protection of her privacy .","On DATE ORG dismissed the applicant 's action , having held a hearing in which it heard as witnesses the CARDINAL staff members of the defendant party involved in the applicant 's video surveillance and dismissal and having watched the video tapes submitted by the defendant party .","ORG found that the defendant party had been entitled to dismiss the applicant without notice . It considered that the defendant party had been authorised to observe the applicant by means of covert video surveillance and to use the recording obtained thereby . The losses discovered in the drinks department during stocktaking and the irregularities between the amount of money paid out for returned empty deposit bottles and the value of the full bottles sold in the market during the applicant 's working time had constituted sufficient grounds for the defendant party to order her surveillance . The defendant party 's property rights had been seriously interfered with .","In such circumstances , the video observation of an employee was lawful , as had been confirmed by ORG in its judgment of CARDINAL DATE ( file no . CARDINAL ORG CARDINAL , see ' Relevant domestic law and practice ' below ) . In case of the covert video surveillance of an employee on suspicion of theft , the employer 's fundamental right to respect for his property rights had to be weighed against the employee 's fundamental right to privacy vis - \u00e0 - vis third persons , including his employer or his colleagues . Special circumstances were necessary to justify an interference with the employee 's right to privacy , which had to be proportionate .","Weighing these competing interests in the present case , ORG found that the defendant party had been entitled to put the applicant under covert video surveillance . Having regard to the organisation of work in the drinks department of the supermarket , there were no other means to protect the defendant party 's property rights . The surveillance had not been random , but carried out following suspicions of theft against CARDINAL employees . The video records obtained had been used by the management staff of the defendant party and had been submitted to the court in order to justify the applicant 's dismissal without notice . There was no risk of the records being used in a different manner . Therefore , the applicant neither had a right to non - pecuniary damage nor to be given the video tapes .","ORG , having regard to the evidence before it including the information obtained by examining the video tapes in question , found that the defendant party had had sufficient grounds to conclude that the applicant had repeatedly committed offences against its property during the relevant period . The applicant had not proven that the money she had undeniably taken from the till had been tips . In any event , it had not been necessary to hear the witnesses named by the applicant to prove that the money concerned had been tips because such tips were , in any event , also the property of the defendant party according to the work regulations in place .","On DATE the GPE ORG , which had granted the applicant legal aid , dismissed the applicant 's appeal and refused to grant her leave to appeal on points of law .","ORG , referring to the case - law of ORG ( judgment of DATE , file no . CARDINAL ORG CARDINAL , see ' Relevant domestic law and practice ' below ) , endorsed ORG finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desk area of the drinks department . Her dismissal without notice had been justified as , following the examination of the videotapes in the proceedings , the applicant had stopped contesting that she had taken money from the till on several occasions .","The covert video surveillance of the applicant had complied with section CARDINAL of ORG ( Bundesdatenschutzgesetz , see ' Relevant domestic law and practice ' below ) , which transferred Directive CARDINAL\/CARDINAL\/EG into domestic law . The workplace of a cashier behind the cash desk was not an area in the supermarket accessible to the public . Therefore , video surveillance thereof did not have to be made visible under section CARDINAL LAW . In any event , a cashier whose surveillance had been justified could not rely on the fact that the video surveillance had also covered customers who were standing at the cash desk and in respect of whom the covert video surveillance had not been permitted .","ORG further considered that it had not been necessary to take further evidence in the proceedings , in particular to play the videotapes , after the applicant had stopped contesting having taken money from the till and having put it in her pockets on several occasions . As this fact alone justified the applicant 's dismissal without notice , the use of the impugned videotapes as evidence in the proceedings had not been necessary . Even assuming that the defendant party had illegally obtained knowledge of the fact that the applicant had taken money from the till and even if this evidence were excluded , the defendant party had not been prevented from alleging this issue and the applicant had been obliged to reply truthfully .","Moreover , it had not been necessary to take further evidence in order to verify whether the applicant had taken only tips from the till which she had later put into another till designated for tips . An employer could not be expected to further employ a cashier who put money from the till into her pockets without keeping any records on where the money was to be found . The witnesses named by the applicant to prove that there had been a separate till for tips and that the applicant had put money into that till would not be sufficient to prove that all the money taken from the till in the drinks department had been tips and had been put into the till designated for tips .","ORG finally found that , at least at that stage of the proceedings , the applicant could not ask for the videotapes to be erased . The defendant party had a right to keep the videotapes at least until a final decision was given in the court proceedings brought by the applicant and until the admissibility and necessity of the tapes as evidence was no longer at issue ( compare section CARDINAL \u00a7 CARDINAL of ORG ) .","By a decision of DATE ORG dismissed the applicant 's complaint about the refusal of ORG to grant her leave to appeal . It further dismissed the applicant 's request for legal aid as her complaint had not had reasonable prospects of success .","ORG found , in particular , that ORG had not diverged from ORG case - law . In any event , ORG had left open whether the video surveillance of the applicant had been lawful and whether the evidence obtained thereby should have been used in the proceedings before the labour courts . It had instead based its judgment on facts uncontested between the parties . As it had considered the applicant 's dismissal lawful , it had also considered her claim for damages ill - founded . The lawfulness of the video surveillance had therefore been irrelevant to the outcome of the proceedings .","On DATE the applicant lodged a constitutional complaint with ORG . She argued , in particular , that her right to privacy ( allgemeines ORG ) had been breached by the unlawful covert video surveillance , by the processing of the data obtained thereby and by their use in the proceedings before the labour courts , which had refused to order the destruction of the video recording . Moreover , she submitted that her right to a fair trial and to be heard had been violated in that the labour courts had failed to take relevant evidence . She further submitted that ORG refusal to grant her legal aid had breached her right of equal access to court .","On DATE ORG declined to consider the applicant 's constitutional complaint and dismissed the applicant 's request to be granted legal aid ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) . It found that the applicant 's complaint had no prospects of success as there was nothing to indicate that her fundamental rights had been violated by the decisions of the labour courts .","Provisions aimed at protecting individuals against infringements of their right to privacy as a result of the way in which their personal data are handled are contained in ORG . Changes to that LAW entered into force in DATE in order to implement Directive CARDINAL of ORG and of ORG on the protection of individuals with regard to the processing of personal data and on the free movement of such data .","Section CARDINAL of ORG contains rules on the monitoring of publicly accessible areas with optic - electronic devices . Such video surveillance is lawful only in so far as it is necessary , in particular , to pursue legitimate aims for specifically defined purposes and if there are no indications of overriding the legitimate interests of the data subject PERSON ( section CARDINAL \u00a7 CARDINAL no . CARDINAL ) . Suitable measures shall be taken to make it visible that the area is being monitored and to identify the controller ( section CARDINAL LAW ) . The data shall be erased as soon as they are no longer needed to achieve the purpose or if further storage would conflict with the legitimate interests of the data subject ( section CARDINAL \u00a7 CARDINAL ) .","On DATE a new section CARDINAL of ORG entered into force . It codifies ( see judgment of ORG of DATE , file no . CARDINAL Ca CARDINAL\/CARDINAL ) ) the previously developed case - law of ORG on video surveillance at the workplace ( see below ) . Under paragraph CARDINAL of section CARDINAL , an employee 's personal data may be collected , processed or used for employment - related purposes where necessary for decisions regarding hiring or , after hiring , for carrying out or terminating the employment contract . Employees ' personal data may be collected , processed or used to investigate criminal offences only under the following circumstances : if there is a documented , factual reason to believe that the data subject has committed a criminal offence in the course of his work ; if the collection , processing or use of such data is necessary to investigate the criminal offence ; if the employee does not have an overriding legitimate interest in ruling out the possibility of the collection , processing or use of such data , and , in particular , if the type and extent are not disproportionate to the aim pursued .","On DATE ORG rendered a leading judgment on the lawfulness of covert video surveillance in the workplace ( file no . CARDINAL AZR CARDINAL ) .","ORG , upholding the judgment rendered by ORG on DATE ( file no . CARDINAL Sa CARDINAL b\/CARDINAL ) , found that the covert video surveillance of an employee by his employer interfered with the employee 's fundamental right to privacy as guaranteed by LAW , read in conjunction with LAW , which also had to be respected in the relationship between private persons , including employment relations . This right had to be weighed against the employer 's interest in securing evidence for his claim , having regard to the necessity of an effective judicial system required by the rule of law .","However , such an interference with the employee 's right to privacy was justified and did not entail an exclusion of the evidence obtained thereby in subsequent court proceedings if there was a substantiated suspicion that the employee had committed an offence or was guilty of other serious misconduct towards his employer , if less intrusive means to examine the suspicion had been exhausted , if the video surveillance was , in practice , the only means which remained to verify the suspicion and if it was not as a whole disproportionate .","ORG confirmed this judgment in several subsequent decisions ( see the decision of ORG of DATE , ORG file no . QUANTITY ; decision of DATE , file no . CARDINAL ORG CARDINAL\/CARDINAL ; and decision of CARDINAL DATE , file no . CARDINAL ABR CARDINAL\/CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105114","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2011,"docname":"CASE OF MERCIECA AND OTHERS v. MALTA","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed","judges":"David Scicluna;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE . They are certified public accountants acting personally and in their capacity as partners of the partnership ORG .","On an unspecified date the applicants were sued , personally and in their capacity as partners of the partnership ORG , as auditors of ORG , in a civil action by a company , ORG The latter claimed that the applicants\u2019 audit firm had acted negligently and fraudulently in its drawing up of ORG audit report \/ financial statements , and was therefore liable for the losses sustained by V as a result of its reliance on those documents .","During the proceedings the applicants raised a preliminary plea to the effect that reliance by ORG on the audit report when taking a particular credit decision , and knowledge on the part of the applicants of such reliance when taking that decision , were lacking . These requirements were fundamental to this type of action .","On DATE ORG dismissed this plea in a preliminary judgment .","On DATE the applicants requested special leave to appeal the preliminary judgment under LAW ( \u201c COCP \u201d ) . On DATE , ORG in its ordinary jurisdiction granted leave to appeal .","On DATE the applicants lodged an appeal .","On DATE , having heard the parties\u2019 arguments , ORG dismissed the appeal as out of time . It noted that while the legislator had clearly established that the time - limit for lodging an appeal against an interlocutory decree ran from the date of authorisation to appeal , in respect of an appeal against a \u201c judgment \u201d the legislator had made no distinction between a \u201c judgment \u201d and a \u201c partial judgment \u201d ( senten\u017ca par\u017cjali ) . It followed that the DATE time - limit which ran from the date of delivery of a judgment according to LAW applied also to appeals necessitating prior leave to appeal .","On DATE the applicants instituted constitutional redress proceedings before ORG in its constitutional jurisdiction , claiming that such an erroneous interpretation by ORG deprived them of access to court .","On DATE ORG upheld the ORG claims , finding that a right to appeal could not arise before leave to appeal had been given . Moreover , an appellant did not have to tolerate the delays of a court in giving leave to appeal . ORG interpretation had therefore deprived the applicants of access to court in violation of LAW . It declared ORG judgment null and void .","On DATE ORG , on appeal by the Attorney General , acknowledged that the interpretation given to the law had been erroneous , thereby depriving the applicants of their right to appeal at an early stage . Nevertheless , it did not uphold the first - instance judgment , since a wrong interpretation did not suffice to lead to a violation of the ORG . While reiterating that an appeal could be heard before ORG only once , it considered that the applicants had the opportunity to appeal in the civil case after the final judgment . Thus , given that a defect in first - instance proceedings could be remedied on appeal , the right to a fair hearing would similarly not be violated if a remedy which had been inappropriately denied became available at a later stage of the proceedings .","Article CARDINAL ( CARDINAL ) of LAW ( \u201c COCP \u201d ) ( LAW of LAW ) , at the relevant time , read as follows :","\u201c Where several issues in an action have been determined by separate judgments , appeal from any such judgments may only be entered after the final judgment and within the prescribed time , to be reckoned from the date of such final judgment ; and in such an appeal express mention of the judgment or judgments appealed from shall be made :","Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court ; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within DATE from such judgment . \u201d","The Article was amended in DATE , whereby the following phrase was added to the proviso :","\u201c and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from DATE on which the said leave is read out in open court . \u201d","Article CARDINAL ( CARDINAL ) of the ORG reads as follows :","\u201c An appeal is entered by means of an application to be filed with the registry of ORG within DATE from the date of the judgment . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103216","languageisocode":"ENG","respondent":"PRT","branch":"CHAMBER","date":2011,"docname":"CASE OF KAROUSSIOTIS v. PORTUGAL [Extracts]","importance":1,"conclusion":"Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, same application submitted to other procedure);Violation of Art. 8","judges":"Fran\u00e7oise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE ( GPE ) .","On DATE she gave birth to a child in GPE whose father , PERSON , is a NORP national .","NORP In DATE the child \u2019s father was sentenced by the court of GPE to DATE imprisonment for drug trafficking . His exclusion from GPE having been ordered , he was deported to GPE in DATE .","The applicant and the child \u2019s father separated while he was in prison .","NORP In DATE , accompanied by a paternal uncle , the child went to GPE to visit his father .","On DATE the applicant travelled to GPE to collect her child . She returned alone to GPE on DATE .","In DATE the applicant lodged , with the Federal Attorney - General , a request for the child \u2019s return to GPE in accordance with LAW on the Civil Aspects of International Child Abduction of DATE ( \u201c the LAW \u201d ) .","On DATE the NORP public prosecution service sent a request to the NORP authorities to obtain the child \u2019s return , alleging that the child had been wrongfully removed from GPE in breach of LAW .","The request was served on the child \u2019s father , who opposed the return . A. denied , in particular , that the child \u2019s removal had been wrongful and stated that the decision for the child \u2019s trip had been taken by both parents . He explained that the child \u2019s movement had been decided by both parents because the child \u2019s mother had envisaged settling in GPE .","On DATE the ORG gave a judgment to the effect that the child should not be returned to GPE , finding that the child \u2019s retention in GPE was not wrongful within the meaning of LAW of LAW or of LAW ( ORG ) no . CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ( \u201c ORG no . CARDINAL \u201d ) .","On DATE the applicant appealed against the judgment before ORG arguing , among other things , that she had not been heard by ORG .","In a judgment of DATE , ORG granted the applicant \u2019s request . Annulling the judgment of ORG , ORG referred the case back to it , directing in particular that it should hear the child \u2019s mother .","The child \u2019s father appealed against the judgment of ORG before ORG , which dismissed his appeal on DATE .","On DATE , pursuant to an international letter of request from ORG dated DATE , the mother was heard by the GPE court .","On DATE the GPE court reported back to ORG , sending the record of the hearing .","In a judgment of CARDINAL DATE , ORG again rejected the request for the child \u2019s return , finding that the child \u2019s removal had not been wrongful as it had been agreed between the CARDINAL parents .","On DATE the applicant lodged an appeal before ORG . Her appeal was dismissed by a judgment of CARDINAL DATE .","NORP In its judgment , ORG stated :","\u201c ... it must be concluded that from the time when the mother of PERSON returned to GPE without her son , he began to be wrongfully retained in GPE . Her return request showed , categorically , that she did not wish her son to remain in GPE . \u201d","Even though ORG recognised that the case concerned a situation of wrongful retention of a child , under the terms of ORG no . CARDINAL\/CARDINAL , it found it preferable for the child to remain in GPE for the following reasons :","\u201c The facts of the case show that the child , who has been looked after by his great - grandmother since DATE , has a particular emotional attachment to her , seeing in her a mother figure , to the point of almost forgetting the image of his mother . His great - grandmother is the person who takes care of him day - to - day , with tenderness ... The mother very rarely calls her child , and when she does so , the child does not consider it very important . The child sees his great - grandmother , at the current stage of his development , as a figure of authority who brings him security and tranquillity , as shown in his behaviour at school and in his relationships with others . He is content in the environment in which he lives and has been very successful at school . Accordingly , to change his environment and take him away from the person to whom he relates would risk causing him psychological harm ...","All the conditions are thus met for the respondent ORG to prevent the child \u2019s return , in the light of the child \u2019s best interests , which must take precedence over the free movement of children DATE even if this is done safely \u2013 in accordance with LAW b ) of LAW [ on ORG ] of DATE . Taking the view that a return to GPE would be harmful for the child , the respondent ORG has acted in accordance with LAW . \u201d","On DATE the public prosecutor at the PERSON court opened proceedings in respect of parental responsibilities ( regula\u00e7\u00e3o do poder paternal ) vis - \u00e0 - vis the child . Custody was provisionally awarded to the father .","On DATE the ORG held its first conciliation hearing . As they failed to reach an agreement , the parents were requested to submit pleadings .","On DATE the applicant filed her pleadings . Submitting that the child \u2019s retention in GPE was wrongful , the applicant argued that ORG lacked territorial jurisdiction , as in her view the NORP courts had jurisdiction in accordance with ORG no . CARDINAL .","The child \u2019s father , in his pleadings of DATE , requested the court to award him custody .","On DATE the public prosecutor at ORG submitted that the decision should be deferred until the completion of the proceedings before the NORP courts concerning the child \u2019s return .","In a decision of DATE , the ORG amended the provisional allocation of parental authority in respect of the child , transferring it to the child \u2019s great - grandmother .","On DATE the applicant ( represented by her lawyer ) and the child \u2019s father jointly requested ORG to award custody of the child to the applicant .","On DATE the applicant requested the court to speed up the proceedings .","On DATE the child \u2019s father was remanded in custody in connection with an investigation into false imprisonment , extortion , drug trafficking , unlawful carrying of a weapon and theft .","On DATE the applicant reiterated her request to ORG to obtain parental authority of the child . In a decision of DATE , the court dismissed the applicant \u2019s request , indicating that the proceedings had been stayed .","On CARDINAL DATE the child \u2019s great - grandmother requested the court to grant her permanent custody of the child .","Following the judgment of ORG of CARDINAL DATE , ORG decided on CARDINAL DATE that the proceedings in respect of parental responsibilities should be resumed .","On DATE and CARDINAL DATE the applicant requested ORG to award her custody of the child , invoking her agreement with the child \u2019s father .","By an international letter of request , the court sought information from the NORP social services about the applicant \u2019s social and financial circumstances .","On DATE the ORG received the reports that had been requested from the NORP authorities . On DATE it received a report from the NORP social services showing the child \u2019s general situation of well - being in GPE .","To date , the proceedings are still pending before ORG .","On DATE the applicant filed a complaint with ORG alleging an infringement of ORG no . DATE . She complained about the excessive length of the proceedings before ORG , relying on LAW .","On DATE the applicant sent various documents in support of her application to ORG .","On DATE the ORG \u2019s ORG for ORG , ORG and ORG asked the applicant for additional information concerning the proceedings for the return of the child on grounds of wrongful removal and retention . On DATE the applicant sent that information to ORG , submitting a copy of ORG judgment of DATE .","According to the most recent information from the applicant , dating from DATE , the proceedings thus initiated before ORG were still pending .","...","...","The relevant part of LAW provides as follows :","\u201c CARDINAL . The Commission shall promote the general interest of the ORG and take appropriate initiatives to that end . It shall ensure the application of the ORG , and of measures adopted by the institutions pursuant to them . It shall oversee the application of Union law under the control of ORG of ORG . It shall execute the budget and manage programmes . It shall exercise coordinating , executive and management functions , as laid down in the Treaties . With the exception of the common foreign and security policy , and other cases provided for in the Treaties , it shall ensure the ORG \u2019s external representation . It shall initiate the ORG \u2019s DATE and multiannual programming with a view to achieving interinstitutional agreements . \u201d","Article CARDINAL of the LAW on the Functioning of ORG ( formerly LAW establishing ORG ) provides as follows :","\u201c If the Commission considers that a member ORG has failed to fulfil an obligation under the Treaties , it shall deliver a reasoned opinion on the matter after giving the ORG concerned the opportunity to submit its observations .","If the ORG concerned does not comply with the opinion within the period laid down by the ORG , the latter may bring the matter before ORG of ORG . \u201d","In addition , the relevant part of LAW ( formerly LAW establishing ORG ) provides as follows :","\u201c CARDINAL . ... If the ORG [ of ORG of ORG ] finds that there is an infringement it may impose a lump sum or penalty payment on the member ORG concerned not exceeding the amount specified by the ORG . The payment obligation shall take effect on the date set by the ORG in its judgment . \u201d","The explanatory note accompanying the complaint form to be addressed to ORG for non - compliance with ORG law explains as follows :","\u201c Anyone may lodge a complaint with the ORG against a member ORG about any measure ( law , regulation or administrative action ) or practice which they consider incompatible with a provision or a principle of Community law . Complainants do not have to demonstrate a formal interest in bringing proceedings . Neither do they have to prove that they are principally and directly concerned by the infringement complained of . To be admissible , a complaint has to relate to an infringement of ORG law by a member ORG . ... \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23318","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2003,"docname":"SENTGES v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson","text":["The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in LOC . He is represented by his mother , PERSON , who exercises parental authority ( ouderlijk gezag ) over him . In the proceedings before the ORG he is represented by PERSON ORG , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant suffers from PERSON Dystrophy ( DMD ) , a disease characterised by progressive muscle degeneration , loss of the ability to walk and often the loss of lung or cardiac functions . There is currently no known cure for ORG . Most affected people survive into DATE .","The applicant is unable to stand , walk or lift his arms , and his manual and digital functions are virtually absent . He uses an electric wheelchair to move about , both outside the home and at school . He uses an adapted joystick to control the movement of the chair as he lacks the muscle strength required to operate the standard joystick . For every act he needs or wishes to perform , including eating and drinking , he is completely dependent on assistance from third persons .","On DATE the applicant \u2019s parents requested their health insurance fund ( ziekenfonds ) to provide him with a \u201c MANUS Manipulator \u201d , a robotic arm specifically designed to be mounted on electric wheelchairs in order to give disabled people more autonomy in handling objects in their environment . This request was supported by a rehabilitation specialist ( revalidatiearts ) who informed the health insurance fund that when the applicant had tried out the robotic arm he had shown that he would be able to learn how to use it . Providing the applicant with the robotic arm would enable him to perform many acts unassisted , such as :","\u2013 pouring drinks and drinking ;","\u2013 picking up various remote controls and using them ;","\u2013 operating audio and video players , for example inserting and removing audio and video cassettes ;","\u2013 switching a computer and printer on and off ;","\u2013 pressing lift buttons and door bells when visiting third persons ;","\u2013 shopping ;","\u2013 making telephone calls and sending faxes ;","\u2013 picking up items off the floor or out of cupboards ;","\u2013 picking up papers and\/or books and turning pages ;","\u2013 scratching himself ; and","\u2013 playing games .","Since the applicant was receiving the CARDINAL-hour assistance he required mainly from his parents , it was not possible to quantify in monetary terms the savings which would result from the use of the robotic arm . However , not long after being provided with the robotic arm , the applicant \u2019s dependence on the constant presence of carers would be reduced by CARDINAL to TIME a day . This would alleviate the task of the carers , who would thus be better able to continue fulfilling their task . In addition , the applicant would be able to continue living at home ( for a longer period of time ) . The total cost of the robotic arm amounted to QUANTITY ( ORG ) .","On DATE the health insurance fund rejected the request for the reason that the provision of a robotic arm was covered neither by ORG ( GPE ) , the Exceptional Medical Expenses Act ( Algemene Wet Bijzondere Ziektekosten ) nor by any other social insurance scheme .","The objection ( bezwaar ) which the applicant \u2019s parents filed against this decision was rejected by the health insurance fund on DATE . The insurance fund held that since LAW ( Verstrekkingenbesluit Ziekenfondsverzekering ) stipulated that insured persons were entitled to those medical devices which had been designated by ORG ( Minister PERSON , ORG ; \u201c the Minister \u201d ) , it was not allowed to provide for , pay for or make a payment towards devices other than those mentioned in LAW ( PERSON hulpmiddelen DATE ; \u201c the Regulation \u201d ) . A robotic arm was not listed in that Regulation .","The appeal lodged by the applicant \u2019s parents against this decision was upheld by ORG ( arrondissementsrechtbank ) of GPE on DATE . ORG considered that the health insurance fund had given too narrow an interpretation to certain provisions of the Regulation . It therefore ordered the health insurance fund to come to a new decision on the request for the robotic arm . In view of this finding ORG considered that it was not necessary to examine the arguments raised by the applicant \u2019s parents relating to LAW .","The health insurance fund appealed against the judgment of ORG to ORG ( ORG ) . It maintained that the robotic arm was not a medical device which could be provided pursuant to the ORG . In this connection it pointed to the fact that ORG ( College voor zorgverzekeringen ) had advised the Minister in DATE to include the robotic arm in the Regulation . However , the Minister had decided not to adopt this proposal for the time being . Obviously , if an insured person was already able to enforce a right to be provided with a robotic arm , neither the advice of ORG nor the decision of the Minister would have been necessary .","The arguments presented on behalf of the applicant in the proceedings before ORG included extensive reasoning relating to LAW .","On DATE ORG rejected the appeal . It found that the Regulation did not contain an entitlement for the applicant to be provided with a robotic arm . As to LAW held as follows :","\u201c The ORG is of the opinion that it has to be said that a direct and immediate link exists between [ the applicant \u2019s ] private life and the measure demanded from [ the health insurance fund ] , to wit the provision of a robotic arm . Taking into account the wide margin of appreciation which the ORG enjoys in these matters , it can nevertheless not be said that , when weighing the general interest , including the costs of health care , against the individual interest , the ORG could not reasonably have decided to exclude the robotic arm at issue from the package of treatment and services that persons are entitled to pursuant to ORG . \u201d","The above - mentioned report of ORG stated that CARDINAL persons DATE might be eligible for the robotic arm if it were to be included in the health insurance fund package . If the lifespan of a robotic arm was set at DATE , the yearly costs would amount to ORG CARDINAL per arm . It was likely that the provision of a robotic arm would also entail savings , but the exact extent of these savings was difficult to estimate .","Insurance under LAW is statutory : everyone who meets the criteria laid down in the legislation is automatically insured and consequently obliged to pay the statutory contribution . These criteria relate mainly to income ; individuals whose income exceeds a certain amount are expected to take out private insurance . Children to whose maintenance an insured person contributes at least a particular amount per week are also insured .","A person insured under LAW must register with a health insurance fund in order to obtain insurance entitlements . The nature of the care available to those covered by LAW is defined in the LAW itself and in more detail in ORG Decree and the associated ministerial regulations .","In addition , all residents of the GPE are statutorily insured under the Exceptional LAW ( Algemene Wet Bijzondere Ziektekosten ) which provides cover for very severe financial burdens as a result of serious long - term illnesses or disorders ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58279","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF S\u00dcREK v. TURKEY (No. 1)","importance":1,"conclusion":"No violation of Art. 10;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"John Freeland;Luzius Wildhaber;Paul Mahoney","text":["The applicant is a NORP citizen who was born in DATE and lives in GPE .","At the material time , the applicant was the major shareholder in ORG ve PERSON , a NORP limited liability company which owns a DATE review entitled Haberde Yorumda Ger\u00e7ek ( \u201c ORG and Comments \u201d ) , published in GPE .","NORP In issue no . CARDINAL dated DATE , CARDINAL ORG letters , entitled \u201c LOC \u201d ( \u201c Weapons can not win against freedom \u201d ) and \u201c PERSON \u201d ( \u201c It is our fault \u201d ) , were published .","The letters read as follows ( translation ) :","( a ) \u201c Weapons can not win against freedom","In the face of the escalating war of national liberation in GPE , the fascist NORP army continues to carry out bombings . The \u2018 \u015e\u0131rnak massacre\u2019 which GPE journalists revealed at the cost of great self - sacrifice has been another concrete example DATE .","The brutalities in GPE are in fact the worst that have been experienced there in DATE . The massacre carried out in Halep\u00e7e in southern GPE by the reactionary PERSON administration is now taking place in northern GPE . \u015e\u0131rnak is concrete proof of it . By causing provocation in GPE , GPE was heading for a massacre . Many people were killed . In a DATE attack with tanks , shells and bombs , PERSON was razed to the ground .","And the bourgeois press , en masse , wrote about the slaughter . And as the bourgeois press has said , there are indeed scores of \u2018 unanswered\u2019 questions to be asked . As to PERSON , the attack on PERSON is the most effective form of the campaign that is being waged throughout GPE to eradicate the NORP . Fascism will follow it up with many more GPE .","But the struggle of our people for national freedom in GPE has reached a point where it can no longer be thwarted by bloodshed , tanks and shells . Every attack launched by GPE to wipe out the NORP intensifies the struggle for freedom . The bourgeoisie and its toadying press , which draw attention DATE to the brutalities in GPE , fail to see the brutalities committed in GPE . Of course , one can hardly expect reactionary fascists who call for a halt in the brutalities in GPE to call for a halt in the brutalities in GPE .","The NORP people , who are being torn from their homes and their fatherland , have nothing to lose . But they have much to gain . \u201d","( b ) \u201c It is our fault","The ORG [ ] murder gang is continuing its murders ... on the grounds of \u2018 protecting GPE . But as people wake up to what is happening and become more aware , as they gradually learn to stand up for their rights and the idea that \u2018 if they wo n\u2019t give , then we \u2019ll take by CARDINAL gradually germinates in people \u2019s minds and grows stronger DATE by DATE as long as this continues , the murders will obviously also continue ... Beginning of course with those who planted the seed in people \u2019s minds DATE according to the generals , imperialism \u2019s hired killers , and according to the double - chinned , pot - bellied , stiff - necked LOC NORP and GPE ... Hence the events of DATE , hence the events of QUANTITY September ... Hence the gallows , hence the prisons , hence the people sentenced to DATE . Hence the people murdered in the torture rooms \u2018 in order to protect GPE . Hence PERSON exterminated in FAC ... Hence the ORG recently officially assassinated ... The ORG murder gang is continuing DATE and will continue DATE to commit its murders . Because the awakening of the people is like a flood of enthusiasm ... Hence Zonguldak , hence the municipal workers , hence the public service employees ... Hence GPE . Can the \u2018 murder gangs\u2019 stop that flood ? There may be some who see the title of this letter and wonder what on earth it has to do with the text .","The \u2018 hired ORG of imperialism , i.e. the authors of the CARDINAL DATE coup ORG , and their successors of DATE and DATE , those who are still looking for \u2018 democracy\u2019 , who in the past participated in CARDINAL way or another in the struggle for democracy and freedom , who now covertly or openly criticise their past actions , who confuse the masses and present the parliamentary system and the rule of law as the means of salvation , give the green light to the killings of the ORG murder gang .","I am addressing the \u2018 faithful PERSON of imperialism and its hardened spokesman ( men ) , the one(s ) who said some time ago \u2018 You wo n\u2019t get me to say that the nationalists commit crimes\u2019 [ ] , who ORG ) DATE \u2018 Those are not what we call PERSON , who ORG ) \u2018 Who \u2019s against demonstrations ? Who \u2019s against claiming one \u2019s rights ? Of course they can hold a march ... They \u2019re my workers , my peasants , my public employees\u2019 , but then has ( have ) the public employees who march to GPE beaten up in the very heart of the city and ORG ) afterwards \u2018 The police did the right thing\u2019 , and who postpone(s ) strikes for DATE on end . I am addressing the blabbers , the deserters and the charlatans who are stirring up the reactionary consciousness of the masses , who try to judge these people by their attitude towards GPE and try to work out how \u2018 democratic\u2019 they are . The guilt of the murder gang is proven . It is through flesh - and - blood experience that people are beginning to see it and realise it . But what about the guilt of the charlatans , the ones who are thwarting the struggle for democracy and freedom ... Yes , what about their guilt ... They have their share in the killings by the murder gang ... DATE their \u2018 union\u2019 be a happy CARDINAL ! \u201d","NORP In an indictment dated DATE , the public prosecutor at ORG ( GPE PERSON ) charged the applicant in his capacity as the owner of the review , as well as the review \u2019s editor , with disseminating propaganda against the indivisibility of the ORG and provoking enmity and hatred among the people . The charges were brought under LAW and section CARDINAL of LAW DATE ( \u201c the DATE LAW see paragraphs DATE and CARDINAL below ) .","In the proceedings before ORG , the applicant denied the charges . He asserted that the expression of an opinion could not constitute an offence . He further stated that the letters in issue had been written by the readers of the review and for that reason could not engage his responsibility .","In a judgment dated DATE , the court found the applicant guilty of an offence under the first paragraph of section CARDINAL of the CARDINAL Act . It found no grounds for convicting him under LAW . The court initially sentenced the applicant to a fine of MONEY ( TRL ) . However , having regard to the applicant \u2019s good conduct during the trial , it reduced the fine to GPE CARDINAL . The editor of the review was for his part sentenced to CARDINAL months\u2019 imprisonment and to a fine of GPE CARDINAL,CARDINAL,CARDINAL .","In its judgment , the court held that the incriminated letters contravened section CARDINAL of the CARDINAL Act . The court concluded that the letters referred to CARDINAL districts in the south - east of GPE as an independent ORG , \u201c GPE \u201d , described the ORG ( Workers\u2019 party of GPE ) as a national liberation movement involved in a \u201c national independence war \u201d against ORG and amounted to propaganda aimed at the destruction of the territorial integrity of ORG . In addition the court found that the letters contained discriminatory statements on grounds of race .","The applicant appealed against his conviction to ORG , contending that his trial and conviction contravened Articles CARDINAL and CARDINAL of the Convention . He asserted that section CARDINAL of the DATE Act was contrary to the LAW and denied that the letters in question disseminated separatist propaganda . He also maintained that he had not been able to be present at the hearing at which the decision on his conviction had been given . He pleaded that the decision given in his absence and without his final statement having been taken was contrary to law .","On DATE ORG ruled that the amount of the fine imposed by ORG was excessive and set aside the applicant \u2019s conviction and sentence on that account . The court remitted the case to ORG .","In its judgment of DATE , ORG sentenced the applicant to a fine of GPE CARDINAL but subsequently reduced the fine to GPE CARDINAL,CARDINAL,CARDINAL . As to the grounds for conviction , the court , inter alia , reiterated the reasoning used in its judgment of DATE .","The applicant appealed . He relied on the defence grounds which he had invoked at his first trial . He also maintained that ORG had convicted him without having duly heard his defence .","On DATE ORG dismissed his appeal , upholding ORG reasoning and its assessment of the evidence .","Following the amendments made by PERSON no . CARDINAL of DATE to the DATE LAW see paragraph CARDINAL below ) , ORG ex officio re - examined the applicant \u2019s case . On DATE the court confirmed the sentence which it had initially imposed on him .","The relevant provisions of LAW read as follows :","\u201c Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . \u201d","\u201c The term \u2018 heavy fine\u2019 shall mean payment to the ORG of from CARDINAL to MONEY , as the judge shall decide ... \u201d","\u201c In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence \u2026 \u201d","\u201c Harmful propaganda","A person who by any means whatsoever spreads propaganda with a view to establishing the domination of CARDINAL social class over the others , annihilating a social class , overturning the fundamental social or economic order established in GPE or the political or legal order of the ORG shall , on conviction , be liable to a term of imprisonment of from DATE .","A person who by any means whatsoever spreads propaganda in favour of the ORG \u2019s being governed by a single person or social group to the detriment of the underlying principles of the LOC and democracy shall , on conviction , be liable to a term of imprisonment of from DATE .","A person who , prompted by racial considerations , by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public - law rights guaranteed by the LAW or undermining or destroying patriotic sentiment shall , on conviction , be liable to a term of imprisonment of from DATE .","\u2026 \u201d","\u201c Public incitement to commit an offence","\u2026","Where incitement to commit an offence is done by means of mass communication , of whatever type \u2013 whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled \u2026 \u201d","\u201c Non - public incitement to commit an offence","A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months\u2019 and CARDINAL years\u2019 imprisonment and a heavy fine of from CARDINAL MONEY .","A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years\u2019 imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .","The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . \u201d","The relevant provisions of LAW DATE read as follows :","\u201c For the purposes of the present PERSON , the term \u2018 periodicals\u2019 shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .","\u2018 Publication\u2019 shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .","An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . \u201d","\u201c Where distribution of the printed matter whose distribution constitutes the offence is prevented \u2026 by a court injunction or , in an emergency , by order of ORG \u2026 the penalty imposed shall be reduced to CARDINAL of that laid down by law for the offence concerned . \u201d","NORP The relevant provisions of LAW DATE read as follows :","\u201c It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person \u2019s ... identity is divulged provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .","It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to print or publish declarations or leaflets emanating from terrorist organisations .","\u2026","Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the sales of the previous issue if the periodical appears DATE or less frequently , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ ] . However , the fine may not be MONEY . The editor of the periodical shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher . \u201d","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years\u2019 imprisonment and a fine of from CARDINAL to MONEY .","Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[CARDINAL ] . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment . \u201d","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years\u2019 imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .","Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment .","Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months\u2019 and not more than two years\u2019 imprisonment and a fine of from CARDINAL MONEY \u2026","\u2026 \u201d","\u201c The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . \u201d","\u201c The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .","However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL [ ] . \u201d","\u201c Persons convicted of the offences contemplated in the present PERSON who ... have been punished with a custodial sentence shall be granted automatic parole when they have served DATE of their sentence , provided they have been of good conduct .","\u2026","The first and second paragraphs of LAW [ ] \u2026 of LAW ( Law no . CARDINAL ) shall not apply to the convicted persons mentioned above . \u201d","The following amendments were made to LAW DATE following the enactment of PERSON no . CARDINAL of DATE :","\u201c In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL [ ] and CARDINAL [ ] of PERSON no . CARDINAL of DATE . \u201d","The following provisions are relevant to sentences in respect of offences under LAW :","\u201c The execution of sentences passed on those who were convicted under LAW ( Law no . CARDINAL ) or other laws as editors for offences committed before DATE shall be deferred .","The provision in the first paragraph shall also apply to editors who are already serving their sentences .","The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought , or where a preliminary investigation has been commenced but criminal proceedings have not been instituted , or where the final judicial investigation has been commenced but judgment has not yet been delivered , or where the judgment has still not become final . \u201d","\u201c If an editor who has benefited under the provisions of the first paragraph of section CARDINAL is convicted as an editor for committing an intentional offence within DATE of the date of deferment , he must serve the entirety of the suspended sentence .","\u2026","Where there has been a deferment , criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within DATE of the date of deferment .","Any conviction as an editor for an offence committed before DATE shall be deemed a nullity if the aforesaid period of DATE without any further conviction for an intentional offence . Similarly , if no criminal proceedings have been instituted , it shall no longer be possible to bring any , and , if any have been instituted , they shall be discontinued . \u201d","The Execution of Sentences Act DATE provides , inter alia :","\u201c The term \u2018 fine\u2019 shall mean payment to the ORG of a sum fixed within the statutory limits .","\u2026","If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .","\u2026","The sentence of imprisonment thus substituted for the fine may not exceed DATE \u2026 \u201d","\u201c \u2026 persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... \u201d","The Code of Criminal Procedure contains the following provisions :","\u201c An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .","Non - application or erroneous application of a legal rule shall constitute unlawfulness [ ] . \u201d","\u201c Unlawfulness is deemed to be manifest in the following cases :","CARDINAL- where the court is not established in accordance with the law ;","CARDINAL- where one of the judges who have taken the decision was barred by statute from participating ;","\u2026 \u201d","The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON \u2013 see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor \u2019s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .","Furthermore , the ORG submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : CARDINAL\/CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL ; CARDINAL ; CARDINAL ; DATE ; CARDINAL ; CARDINAL ; CARDINAL\/CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL\u2013CARDINAL ; CARDINAL .","As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of \u201c propaganda \u201d , CARDINAL of the constituent elements of the offence , or on account of the objective nature of the words used .","The constitutional provisions governing judicial organisation of ORG are worded as follows :","\u201c In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .","No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . \u201d","\u201c Judges \u2026 shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW \u2026 \u201d","\u201c ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG \u2019s internal or external security .","ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .","The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .","Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .","Appeals against decisions of ORG shall lie to ORG .","... \u201d","\u201c Military legal proceedings","The personal rights and obligations of military judges \u2026 shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... \u201d","Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide as follows :","\u201c In the capitals of the provinces of \u2026 ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG \u2019s internal or external security . \u201d","\u201c The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . \u201d","\u201c The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian \u2026 judges , the other members , whether regular or substitute , military judges of the first rank \u2026 \u201d","\u201c The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .","Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG \u2026 may not be appointed to another post or place , without their consent , within DATE \u2026","\u2026","If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves \u2026 may be changed in accordance with the procedure laid down in that legislation . \u201d","\u201c ORG shall have jurisdiction to try persons charged with","( a ) the offences contemplated in LAW ,","\u2026","( d ) NORP offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,","( e ) NORP offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State \u2013 meaning both the national territory and its people DATE or against the free democratic system of government , and offences which directly affect the ORG \u2019s internal or external security .","\u2026 \u201d","\u201c ORG shall hear appeals against the judgments of ORG . \u201d","\u201c The rules governing the rights and obligations of \u2026 military judges appointed to ORG and their supervision \u2026 , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession \u2026","The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors \u2026 and the files on any investigations conducted in respect of them \u2026 shall be transmitted to ORG . \u201d","\u201c A ORG may be transformed into LAW , under the conditions set forth below , where a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG \u2026 \u201d","The relevant provisions of ORG are worded as follows :","\u201c The aptitude of military judges \u2026 appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .","( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members \u2026 shall be the Minister of State in ORG , followed by PERSON .","\u2026 \u201d","\u201c Members \u2026 of ORG belonging to ORG \u2026 shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG \u2026 \u201d","\u201c Military judges \u2026 shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces \u2026","\u2026","The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors \u2026 \u201d","\u201c The rules governing the salary scales , salary increases and various personal rights of military judges \u2026 shall be as laid down in the provisions relating to officers . \u201d","\u201c The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :","A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .","\u2026","B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .","\u2026","The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file \u2026 \u201d","\u201c When military judges \u2026 sit in court they shall wear the special dress of their civilian counterparts \u2026 \u201d","Article CARDINAL of LAW of CARDINAL DATE provides :","\u201c It shall be an offence , punishable by DATE imprisonment , to abuse one \u2019s authority as a civil servant in order to influence the military courts . \u201d","Under LAW of LAW ORG of ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108595","languageisocode":"ENG","respondent":"TUR","branch":"COMMITTEE","date":2012,"docname":"CASE OF DOLUTA\u015e v. TURKEY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)","judges":"Andr\u00e1s Saj\u00f3;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE in GPE .","On DATE the applicant was taken into police custody on suspicion of being a member of an illegal organisation .","On DATE he was brought before the public prosecutor and investigating judge at ORG , who ordered his pre - trial detention .","On CARDINAL DATE the public prosecutor at ORG filed a bill of indictment against the applicant , charging him with membership of an illegal organisation .","On DATE due to the factual and legal connection between the cases , the court decided to joint the applicant \u2019s case to other proceedings , involving CARDINAL accused ( no . CARDINAL\/CARDINAL ) .","On DATE the applicant was released pending trial .","On DATE a change took place in the judges sitting as a bench at ORG and therefore , the next hearing was scheduled on DATE .","On DATE the hearing was postponed to DATE due the change in the assignment of judges at the trial court .","On DATE the applicant was summoned to appear before the court in order to make his supplementary submissions for his defence , in view of a possible alteration of the offence he was charged with .","On DATE the court observed that the registered writ having sent to the applicant , returned to the case file without a delivery .","On DATE the public prosecutor at ORG filed an additional bill of indictment , charging the applicant with using explosives .","From the date of DATE to CARDINAL DATE , despite the authorities\u2019 efforts to have summoned the applicant , his whereabouts could not be established . During that period , the court ordered ORG to make an enquiry to the applicant \u2019s family about his nonappearance . Subsequently , the court was informed that the applicant had gone abroad to study .","The trial court invited the prosecutor \u2019s office to transmit the arrest warrant against the applicant to the customs with a view to securing his appearance before the court once he entered the country .","Following a constitutional amendment , ORG were abolished and the applicant \u2019s case was transferred to ORG .","On DATE , in his defence submissions to the court , the applicant \u2019s lawyer claimed that the applicant had already been tried by another chamber of ORG on the basis of the same facts and requested that the matter be examined further .","On DATE ORG ordered the case file of the proceedings in question to verify the reason for the applicant \u2019s previous conviction .","On DATE the court ruled that the criminal proceedings be discontinued on the ground that the prosecution was time - barred . On DATE , the applicant \u2019s lawyer lodged an appeal against the judgment .","According to the submissions in the case file , the proceedings are currently pending before ORG ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60599","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2002,"docname":"CASE OF OSU v. ITALY","importance":3,"conclusion":"Violation of Art. 6-1;No separate issue under Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Christos Rozakis","text":["DATE the applicant used to live in a rented apartment located in the area of GPE , in the province of GPE . He was housing a NORP national whom the authorities maintain is the applicant 's cousin , whereas the applicant alleges he is only a friend .","On DATE a criminal complaint was filed against the applicant and against the person who was sharing the apartment with him for membership of a drug - trafficking ring .","On an unspecified date a search warrant was issued against the applicant 's friend \/ cousin . On CARDINAL DATE the applicant 's apartment was searched . The police found a certain amount of drugs , partly in the house and partly in a nearby barn . On DATE the applicant was arrested and charged with illegal possession of drugs .","During his police interrogation the applicant chose the family home of a couple of close friends , PERSON and PERSON , as the address for service of communications relating to the case , as provided for by LAW NORP Code of Criminal Procedure . The applicant was subsequently committed for trial before ORG on the charge of illegal possession of drugs .","On DATE ORG acquitted the applicant on the ground of lack of evidence ( insufficienza di prove ) . The court however found the applicant 's friend \/ cousin guilty of possessing drugs and sentenced him to DATE imprisonment .","Following his acquittal the applicant again elected PERSON and PERSON family home as his address for service . However , shortly after his acquittal the applicant moved to GPE where he obtained employment . The applicant did not inform the NORP authorities of this change of address as required by NORP law .","On an unspecified date ORG attached to ORG appealed against the judgment acquitting the applicant . On DATE the President of ORG issued a summons for the applicant to attend the appeal hearing set for DATE . On CARDINAL DATE the bailiff ( ufficiale giudiziario ) completed a form stating that he could not serve the summons on account of the fact that the applicant was no longer living there and that it appeared that he had left the country ( \u201c non potuto notificare perch\u00e8 il notificando non \u00e8 piu ' domiciliato presso la famiglia in questione ma pare sia ritornato CARDINAL \u201d ) . On CARDINAL DATE the bailiff completed a report stating that he had served the summons on the applicant by depositing it at the registry of ORG .","On DATE the registry of ORG issued a notice to PERSON , the applicant 's officially - appointed lawyer ( avvocato d'ufficio ) , which stated that , as it had not been possible to serve the summons on the applicant , it had been filed with the court registry . On DATE the bailiff served this notice on Mr D.","On DATE ORG reversed the first - instance judgment concerning the applicant and sentenced him to DATE imprisonment for illegal possession of drugs . The applicant , who had had no notice of the appeal proceedings , was not present at the hearing .","On DATE the bailiff wrote a report stating that the attempt to serve notice of the judgment on the applicant at the old address had failed , the applicant no longer being domiciled there , as declared by PERSON On DATE the bailiff completed a report ( relata di notifica ) stating that he had served notice of the judgment on the applicant by filing it with the registry of ORG . The applicant did not receive any notice of the appeal judgment or of the prison sentence passed on him .","On DATE the applicant was arrested when entering GPE on his return from a holiday . He was immediately imprisoned in compliance with ORG judgment of DATE .","On DATE the applicant made an application to ORG seeking leave to make a \u201c late appeal \u201d ( restituzione nel termine ) .","By a decision ( ordinanza ) of DATE , which was deposited in the court 's registry on DATE , ORG rejected the applicant 's request . It noted that the applicant had had knowledge of his conviction in absentia upon his arrest on DATE , whereas he had lodged the request for the late appeal on DATE , thus failing to comply with the DATE time - limit set out in LAW .","NORP In a letter dated DATE Mr and PERSON stated that they had never been served with notification that an appeal had been lodged in respect of the applicant . On or DATE the applicant was released from prison and was expelled to GPE .","Section CARDINAL paragraphs CARDINAL and CARDINAL of LAW provides as follows :","\u201c When a judgment is delivered in absentia , an accused who proves that he had no knowledge of the judgment can apply for an extension of the time - limit to lodge an appeal against it provided that the judgment has not already been appealed by his lawyer and that the fact that he did not have knowledge of the judgment is not attributable to him ....","The request for an extension of the time - limit shall be lodged by the accused within DATE of his actual knowledge of the judgment \u201d .","Section CARDINAL of Law no . CARDINAL of CARDINAL DATE provides as follows :","\u201c The running of procedural time - limits in the ordinary and administrative courts shall be automatically suspended from DATE to DATE each year and shall recommence at the end of the suspension period . Should a time - limit start running during this period , the starting - date shall be automatically postponed to the end of such period . \u201d","In a judgment ( no . CARDINAL ) of CARDINAL DATE , ORG stated that the DATE time - limit set out in LAW is also suspended from DATE to DATE pursuant to LAW CARDINAL\/CARDINAL ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100469","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2010,"docname":"CASE OF SCH\u00dcTH v. GERMANY","importance":1,"conclusion":"Violation of Art. 8;Just satisfaction reserved","judges":"Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant took up the position of organist and choirmaster at the NORP parish church of PERSON ( \u201c the parish church \u201d ) in GPE .","Article CARDINAL of his contract of employment dated DATE stipulated , inter alia , that ORG ( see paragraph CARDINAL below ) , as currently in force , formed an integral part of the contract and that any serious breach of the ORG \u2019s principles constituted a material ground for termination of contract without notice , in accordance with LAW .","After the contract had been approved by the ORG \u2019s Vicar General , the applicant took the following oath :","\u201c I hereby undertake to discharge my professional duties and to fulfil and observe ecclesiastical obligations . \u201d","From DATE he also held the position of head musician in the deanery and was paid a gross DATE salary of MONEY ( MONEY ) .","In DATE the applicant left his wife , who was the mother of his CARDINAL children . The separation was made public in DATE . Since then the applicant has been living with his new partner , who has also been his representative before the employment tribunals and the ORG .","NORP On DATE , after the applicant \u2019s children had told people at their kindergarten that their father was going to have another child , the PERSON of the parish discussed the matter with the applicant .","On DATE the parish church dismissed the applicant with effect from DATE on the ground that he had breached his duty of loyalty under LAW ( the \u201c LAW \u2013 see paragraph CARDINAL below ) . In the light of ORG fundamental principles enshrining the sanctity of marriage , the applicant , by having an extramarital relationship with another woman , who was expecting his child , was accused not only of committing adultery but also of bigamy .","Following the applicant \u2019s dismissal his wife petitioned for divorce , which was granted on CARDINAL DATE .","On DATE the applicant took his case to ORG .","On DATE ORG granted the applicant \u2019s claim and found that the dismissal of DATE had not terminated his contract of employment . Observing the findings of ORG judgment of DATE ( see PERSON v. GPE , no . PERSON , \u00a7 \u00a7 CARDINAL , DATE ) , which had applied the principles set out by ORG in its leading decision of DATE ( see paragraph CARDINAL below ) , it took the view that the applicant \u2019s conduct did not yet ( noch nicht ) justify his dismissal , under section CARDINAL(CARDINAL ) of ORG ( see paragraph CARDINAL below ) . In the ORG \u2019s view , he had not been bound by heightened duties of loyalty ( gesteigerte ORG ) because he did not perform pastoral or catechistic duties , did not have a canonical mandate ( missio canonica ) and was not a member of the managerial staff ( leitender PERSON ) within the meaning of LAW of LAW . In the ORG \u2019s view , the respondent had not proved that the applicant \u2019s duties as head musician of the deanery were equivalent to managerial office ; accordingly , pursuant to LAW , the parish church should first have summoned him for a clarification interview ( kl\u00e4rendes LOC ) or issued him with a warning ( ORG ) before having recourse to the most serious of the disciplinary measures available , his dismissal , especially on account of his length of service in the parish church ( DATE ) and the fact that he had practically no chance of finding work as an organist on the labour - market outside ORG . ORG observed that an employer could only be dispensed from the obligation to issue a warning in the first instance where the employee could not expect his or her conduct to be tolerated by the employer in view of the seriousness of the breach , or where he or she was not inclined to perform , or capable of performing , his or her professional duties .","In the ORG \u2019s view , in so far as the parish church reproached the applicant for having fathered a child out of wedlock , such a shortcoming , after DATE of service , did not attain a level of seriousness that justified dismissal on that ground alone without prior warning . LAW expressly required consideration of the question whether a staff member opposed the precepts of ORG or , whilst recognising its precepts , had not succeeded in complying with them in practice . The ORG added that the parish church had failed to prove that the applicant had told the PERSON he did not wish to put an end to his new relationship .","On DATE ORG dismissed an appeal by the parish church . It endorsed the findings of ORG , observing that the reason for dismissal had not been the applicant \u2019s paternity of a child born out of wedlock but rather his long - term extramarital relationship . The ORG pointed out that , whilst the applicant \u2019s duties in the ORG did not fall under LAW of LAW , his dismissal nevertheless remained possible under LAW , in view of the proximity between his work and the ORG \u2019s proclamatory mission . However , after formally hearing evidence from the applicant as a party to the proceedings , ORG reached the conclusion that the dismissal had been vitiated by a procedural omission , as the parish church had failed to prove that the PERSON had first sought to induce the applicant to put an end to his extramarital relationship . In view of the fundamental significance of the case , the ORG granted leave to appeal on points of law before ORG .","On DATE ORG quashed the judgment of ORG . It took the view that LAW , which required a clarification interview , applied not only to dismissals decided under paragraph CARDINAL of that Article ( dismissal as the ultimate measure for a serious breach ) but also to those based on paragraph CARDINAL ( exclusion from post as a matter of principle , and possibility of waiving dismissal on an exceptional basis ) . The difference between the CARDINAL paragraphs being merely a question of degree , a clarification interview would be necessary in all cases . In the case before it , ORG took the view that considering the lack of clarity of the ecclesiastical provisions applicable to the applicant as to whether or not his functions entailed heightened duties of loyalty , it had not been clearly established that the applicant could have known with sufficient foreseeability that his dismissal would fall under LAW of LAW . If the holding of a clarification interview had been mandatory in the applicant \u2019s case , the absence of such an interview was thus capable of rendering his dismissal wrongful ( sozialwidrig ) . However , ORG observed that ORG had been mistaken in finding that no interview had been conducted with the applicant . On that point it took the view that ORG had wrongly omitted to hear evidence also from the PERSON , as a party to the proceedings , in order to establish whether or not he had attempted to induce the applicant to put an end to his extramarital relationship and that , accordingly , the judgment appealed against was to be quashed . However , since the facts had not yet been sufficiently established , ORG was not in a position to rule on the question whether the applicant \u2019s dismissal had been justified . As a result , it referred the case back to ORG .","ORG further observed that , where an employing church entered into employment contracts , it used not only the freedom of contract ( PERSON ) provided for under ordinary domestic labour law , but also the institutional guarantee of autonomous management enjoyed by the Churches . Church labour law was therefore applicable in conjunction with the ordinary domestic law . The enactment of LAW , in particular Articles CARDINAL and DATE , reflected the principle of ORG autonomy , as provided for in LAW of LAW ( see paragraph CARDINAL below ) . The application of domestic labour law could not call into question the specificity of ecclesiastical service , which was protected by LAW . ORG was therefore entitled to base its contracts of employment on the model of a NORP service community and , in particular , to require its NORP employees to recognise and comply with the principles of NORP religious and moral precepts , as provided for in LAW . As the credibility of the ORG might depend on its employees\u2019 conduct and respect for the ecclesiastical order , including in DATE lives , Articles CARDINAL and CARDINAL of LAW stipulated the applicable criteria on which to assess contractual duties of loyalty and the seriousness of any breach of such duties .","ORG added that the specificity of the duties of loyalty lay in the fact that they concerned not so much occupational duties as conduct falling within secondary duties or even private life . It noted that the sanctity of marriage formed an integral part of the basic principles of ORG religious and moral precepts . The case concerned not only a relationship and a contract but also a sacrament . Even though adultery was no longer an offence since the new version of LAW of Canon Law , marriage had retained its indissoluble , perpetual and exclusive nature .","ORG noted that , when employment tribunals applied ordinary labour law , they were bound by the precepts of religious denominations in so far as those precepts took account of the criteria recognised by established Churches . However , in applying those precepts the employment ORG decisions could not run counter to the fundamental principles of law , which included the concepts of \u201c morality \u201d and \u201c public order \u201d . According to the case - law of ORG ( see paragraph CARDINAL below ) , it was for the employment tribunals to ensure that religious denominations did not impose excessive requirements of loyalty on their employees . ORG found that the beliefs of the ORG regarding fidelity in marriage were not at odds with the fundamental principles of law . Marriage enjoyed special protection under LAW and adultery was regarded as a serious fault in a civil law context . The ORG observed that it had , moreover , already found in its judgment of DATE that adultery constituted a serious fault in the view of ORG ( see PERSON , cited above , LAW ) .","ORG concluded that ORG had rightly considered that the applicant \u2019s conduct could be characterised as a serious personal moral fault , within the meaning of LAW , and that it therefore constituted a ground for dismissal for the purposes of LAW . It noted that the applicant \u2019s opinion that only a new marriage \u2013 which , according to ORG belief would be null and void \u2013 could be regarded as a serious breach was not substantiated by any provision of LAW or other instruments .","On DATE , after the case had been referred back to it , ORG upheld the parish church \u2019s appeal against the judgment of ORG of DATE . After hearing evidence from the PERSON as a party to the proceedings , and with the applicant having acknowledged that he had , at his interview of DATE with the PERSON , described as permanent his new relationship with his lawyer , the ORG held that the parish church had dismissed him in accordance with LAW . According to the PERSON \u2019s statements at the hearing DATE which the ORG found more credible than those of the applicant \u2013 there had indeed been an interview between the CARDINAL parties . In view of the applicant \u2019s inflexible position as regards his new relationship , the PERSON and the parish church had rightly considered that a prior warning would be superfluous .","ORG added that it was not unaware of the consequences of the applicant \u2019s dismissal , which would most likely prevent him from exercising his profession and from paying the same amount in child maintenance . However , it admitted that the parish church could not continue to employ the applicant without losing all credibility in relation to the mandatory nature of its religious and moral precepts . In this connection it was necessary to take into account the fact that , even if the applicant was not among those members of staff that were bound by heightened duties of loyalty under LAW , his activity was closely related to the ORG \u2019s proclamatory mission . It was thus hardly conceivable vis - \u00e0 - vis the general public that the applicant and the PERSON could continue to perform the liturgy together . According to ORG , the interests of the parish church prevailed by far over those of the applicant .","On DATE ORG found inadmissible a request by the applicant to appeal on points of law .","On DATE ORG disallowed a constitutional complaint by the applicant ( no . DATE ) on the ground that it had insufficient chances of succeeding . In ORG opinion , the decisions appealed against did not raise any constitutional issues in the light of its DATE judgment ( see paragraph CARDINAL below ) .","Since DATE the applicant has been employed as choirmaster for a NORP church in GPE and he also directs CARDINAL choirs on a voluntary basis .","On DATE the parish church issued a second dismissal with effect from DATE . On DATE ORG rejected an application for annulment lodged by the applicant . To date those proceedings are still pending before ORG .","The status of Churches and religious societies is governed mainly by Articles CARDINAL to CARDINAL ( known as the \u201c ORG \u201d DATE ) of the Weimar Constitution of CARDINAL DATE , as incorporated into LAW . A large number of Churches and religious societies , including ORG ( CARDINAL members ) and ORG of Germany ( CARDINAL members ) , commonly known as the CARDINAL \u201c big Churches \u201d ( PERSON ) , have the status of public - law entity but are not , however , part of government . Other religious denominations have legal capacity under civil law . The status of public - law entity enables the Churches concerned , among other things , to receive ORG tax and to employ public servants .","ORG and ORG employ CARDINAL individuals , particularly in their charities , making them the second largest employer in GPE after the ORG . The CARDINAL main charities alone , ORG ( NORP ) and PERSON ( NORP ) , employ respectively CARDINAL and CARDINAL \u201c staff members \u201d . Their activities concern mainly the running of hospitals , schools , kindergartens , homes for children and the elderly and advice centres ( for HIV sufferers , migrants , victims of domestic violence ) . The NORP and Protestant Churches regard their social activities as being part of their proclamatory mission and a way of putting the \u201c love thy neighbour \u201d commandment into practice .","The law governing employment relationships between Churches and their public servants is based on civil - service law . As regards other employees , the ordinary domestic labour law will apply , but with a certain number of exceptions stemming from the Churches\u2019 right of autonomy . As a result of that right they may , among other things , impose specific duties of loyalty on their employees ( see below ) . Moreover , in terms of industrial - relations law , Churches and their institutions are not bound by the domestic right of employee participation . Considering that their activities , especially charity work , are based on the model of a NORP service community , formed by the whole body of staff , they do not accept legal structures based in principle on an opposition between employer and employee . ORG and most of the NORP denominations thus refuse to enter into collective agreements with trade unions , and the right to strike or lock - out are non - existent in their institutions . However , they have created their own systems of representation and staff participation in management .","As regards their financing , Churches and religious societies having the status of public - law entity are entitled to receive ORG tax , which constitutes a significant portion ( PERCENT ) of their total budget . Church tax is levied by the ORG tax authorities on behalf of ORG and religious societies , which in return pay ORG of their tax revenue . This is based on income tax , amounting to CARDINAL thereof . It is paid directly to the ORG by the taxpayer \u2019s employer together with income tax . In this connection municipal authorities issue \u201c wage - tax cards \u201d ( Lohnsteuerkarte ) that employees are required to give their employers . The card contains information about the employee , including the tax regime , rebates for dependent children and membership of a ORG or religious society entitled to receive ORG tax .","Article CARDINAL of the Basic PERSON provides that Articles CARDINAL - CARDINAL and CARDINAL of LAW of DATE form an integral part of LAW . Article CARDINAL reads as follows :","\u201c ( CARDINAL ) There shall be no ORG church .","( CARDINAL ) NORP The freedom to form religious societies shall be guaranteed . ...","( CARDINAL ) NORP societies shall regulate and administer their affairs independently within the limits of the law that applies to all . They shall confer their offices without the involvement of central government or local authorities .","( CARDINAL ) NORP societies shall acquire legal capacity in accordance with the general provisions of civil law .","( CARDINAL ) NORP societies shall remain entities under public law in so far as they have enjoyed that status in the past . Other religious societies shall be granted the same rights upon application , if their constitution and size of membership provide guarantees of long - term existence ...","( CARDINAL ) NORP societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land .","( CARDINAL ) ORG whose purpose is to foster a philosophical belief in the community shall have the same status as religious societies .","( CARDINAL) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land . \u201d","On DATE ORG delivered a leading judgment on the validity of dismissals of ORG employees on the grounds of a breach of their duty of loyalty ( ORG . CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL and DATE , judgment published in the Reports of Judgments and Decisions of ORG , volume CARDINAL , pp . CARDINAL ) . The subject matter of the constitutional complaints was , on the one hand , the dismissal of a doctor practising in a NORP hospital on account of a view he had expressed on abortion , and on the other , the dismissal of a commercial employee of a youth home run by a NORP monastic order because he had left ORG . The CARDINAL dismissed employees had been successful in proceedings before the employment tribunals and the employing Churches had then taken their cases to ORG , which allowed their complaints .","ORG observed that the right of religious societies to manage their affairs autonomously within the limit of the general law , as enshrined in LAW of LAW , applied not only to the Churches , but also , regardless of legal form , to any institution associated with them and participating in their mission . This constitutional guarantee included the right for the Churches to choose the staff they needed for the fulfilment of their mission and , accordingly , to enter into employment contracts . When the Churches chose to exercise their freedom of contract , like everyone else , then ordinary domestic labour law became applicable . However , the applicability of labour law did not have the effect of removing employment relations from the domain of a ORG \u2019s own affairs . The constitutional guarantee of autonomy ( PERSON ) afforded to Churches affected the content of contracts of employment . A ORG could thus , in the interest of its own credibility , base its contracts of employment on the model of a NORP service community , and , accordingly , require its employees to respect the general principles of its dogmatic and moral doctrines and the basic duties applicable to all its members . That did not mean , however , that the legal status of a ORG \u2019s employee became \u201c clericalised \u201d . It merely concerned the nature and scope of duties of loyalty stemming from employment contracts . The civil - law employment relationship was not thereby transformed into an ecclesiastical status that subsumed the employee and dominated his entire private life .","ORG further observed that the freedom of the Churches to manage their own affairs was circumscribed by the general law , including those provisions that granted protection against wrongful dismissal such as section CARDINAL of the Protection from Dismissal Act and LAW . However , those provisions did not automatically prevail over the so - called \u201c ORG \u201d of LAW . It was thus appropriate to balance the different rights , with particular weight being accorded to the Churches\u2019 interpretation of their own faith and legal order . ORG continued as follows :","\u201c It follows that , whilst the constitutional guarantee of the Churches\u2019 right to manage their affairs autonomously permits them to base their contracts of employment on the model of a NORP service community and to lay down the basic ecclesiastical duties , such guarantee must be considered in terms of constitutional law and its scope must be stipulated when it comes to applying the provisions concerning protection against dismissal to dismissals for a breach of duties of loyalty . An application of labour law that did not take account of the duties of ORG employees to respect the fundamental principles of NORP life that the Churches are entitled to impose would be at odds with their constitutional right of autonomy .","Consequently , in the event of a dispute , the employment tribunals must apply the criteria laid down by the Churches concerning the assessment of the contractual duties of loyalty since the LAW affords to Churches the right to decide on such matters autonomously . It is thus in principle for the established Churches ( verfasste PERSON ) to determine what is required by \u2018 the credibility of the ORG and its proclamation\u2019 , what \u2018 specific ecclesiastical ORG are , what \u2018 proximity\u2019 to the ORG means , what \u2018 the basic principles of religious and moral precepts are\u2019 and what constitutes a breach DATE a serious breach in some cases \u2013 of its precepts . Matters governed by the Churches\u2019 right of autonomy also include the question whether and how a scale of duties of loyalty must be applied to staff members working in the service of a ORG .","In so far as such principles correspond to the criteria laid down by the established Churches , a question that must be referred by the tribunal to the ORG authorities in case of doubt , the employment tribunals will be bound by them , unless by applying them they put themselves in conflict with the fundamental principles of law , such as the general prohibition of arbitrariness , the principle of morality , and public order . It is therefore a matter for the domestic courts to ensure that ecclesiastical institutions do not impose on their staff unacceptable demands of loyalty that might , in some cases , be at odds with the very principles of the ORG ...","If the tribunal reaches the conclusion that there has been a breach of such duties of loyalty , it must ascertain whether that breach objectively justifies dismissal under LAW and LAW ... \u201d","Section CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG ( GPE ) provides , in particular , that a dismissal is socially unjustified unless based on reasons related to the employee himself or his conduct .","Article CARDINAL of the Civil Code allows each party to the contract to terminate the employment relationship without notice on serious grounds .","LAW ( b ) of ORG and Pay Regulations ( ORG Arbeits- und GPE ) for the Dioceses ( or Archdioceses ) of GPE , GPE , GPE ( GPE ) , PERSON ( part of GPE ) and GPE , dated DATE , as in force until DATE , required that the way of life of the employee and the members of his household be compliant with the basic principles of the religious and moral precepts of ORG .","Article CARDINAL provided that respect , manifested in words and deeds , for the principles of ORG , and a conduct in line with that required by ecclesiastical staff members , formed part of the employee \u2019s duties .","LAW , in the version currently in force , provides in particular that a serious ground justifying dismissal without notice is constituted by a patent breach ( gro\u00dfer \u00e4usserer GPE ) of ecclesiastical principles , for example the fact of leaving the Church ( GPE ) .","Articles DATE and CARDINAL of LAW for ecclesiastical service in the context of ecclesiastical employment relationships ( PERSON f\u00fcr den kirchlichen ORG i m Rahmen kirchlicher GPE ) , which were adopted by ORG of NORP Bishops on DATE and which came into force in the Diocese of Essen on DATE , read in their relevant parts as follows .","\u201c CARDINAL . NORP employees [ GPE PERSON ] are required to respect and comply with the basic principles of ORG religious and moral precepts . The example of personal life led in conformity with those principles is seen as important in particular for employees who perform pastoral , catechistic or educational duties , or who have a canonical mandate [ ORG canonica ] . These duties also apply to senior management staff .","...","Employees shall refrain from any hostile attitude towards the ORG . They shall not undermine , by their personal way of life or professional conduct , the credibility of the [ ORG and of the institution for which they work . \u201d","\u201c CARDINAL . Where an employee no longer satisfies the employment criteria , the employer shall seek by discussion to prevent the breach in question with permanent effect . The employer will have to ascertain whether , to put an end to the said breach of duty , a clarification interview [ kl\u00e4rendes LOC ] , a warning [ ORG ] , a formal reprimand , or any other measure ( relocation , contractual amendment ) would be appropriate . Dismissal may be envisaged in the last instance .","NORP The NORP shall regard as serious and as justifying dismissal on specifically ecclesiastical grounds [ GPE kirchenspezifischen Gr\u00fcnden ] the following breaches of the duty of loyalty :","\u2013 a breach of the duties provided for in Articles DATE hereof , in particular the fact of leaving the ORG and public defence of positions that run counter to ORG guiding principles ( for example those concerning abortion ) , and serious personal moral misconduct [ schwerwiegende pers\u00f6nliche sittliche PERSON ] ;","\u2013 the fact of entering into a marriage that is null and void in the light of the ORG \u2019s faith and legal order , as interpreted thereby ...","The existence of CARDINAL of the forms of conduct referred to under paragraph CARDINAL of the present Article , and which are regarded as a general rule as grounds for dismissal , shall preclude the possibility of maintaining an employee in his or her post if the employee performs pastoral or catechistic duties , is a member of the managerial staff , or has a canonical mandate [ ORG canonica ] .","Where the employee belongs to CARDINAL of the categories referred to in paragraph CARDINAL [ of the present Article ] , the possibilit institution might be called into question , the burden placed on the ecclesiastical service community , the nature of the institution and its task , the institution \u2019s proximity to the ORG \u2019s proclamatory mission , the employee \u2019s position within the institution and the nature and seriousness of the relevant breach of the duties of loyalty . It will also be necessary to consider whether the employee has opposed the precepts of the ORG or whether , whilst recognising those precepts , has not succeeded in complying with them in practice . \u201d","Under section CARDINAL(CARDINAL ) of LAW of DATE , a church musician employed by ORG must in principle be affiliated with a denomination which is a member of ORG of GPE or part of an ecclesiastical union therewith . Under section CARDINAL ) of that PERSON , in conjunction with section CARDINAL(CARDINAL ) of the implementing law of DATE , a person not fulfilling this condition may nevertheless be appointed , on an exceptional basis , to a post of church musician in secondary employment ( ORG ) if he or she is affiliated with a NORP denomination that is part of ORG in GPE ( ORG christlicher PERSON in GPE ) , to which ORG belongs . Under the Regulations of DATE on the employment of church musicians , the average DATE of such musicians in secondary employment represents TIME .","Recital CARDINAL","\u201c ORG in its Declaration No . CARDINAL on the status of Churches and non - confessional organisations , annexed to LAW of LAW , has explicitly recognised that it respects and does not prejudice the status under national law of Churches and religious associations or communities in GPE and that it equally respects the status of philosophical and non - confessional organisations . With this in view , Member GPE may maintain or lay down specific provisions on genuine , legitimate and justified occupational requirements which might be required for carrying out an occupational activity . \u201d","Article CARDINAL","Occupational requirements","\u201c CARDINAL . ... Member GPE may provide that a difference of treatment which is based on a characteristic related to [ religion or belief ] shall not constitute discrimination where , by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out , such a characteristic constitutes a genuine and determining occupational requirement , provided that the objective is legitimate and the requirement is proportionate .","Member GPE may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which , in the case of occupational activities within Churches and other public or private organisations the ethos of which is based on religion or belief , a difference of treatment based on a person \u2019s religion or belief shall not constitute discrimination where , by reason of the nature of these activities or of the context in which they are carried out , a person \u2019s religion or belief constitute a genuine , legitimate and justified occupational requirement , having regard to the organisation \u2019s ethos . ...","Provided that its provisions are otherwise complied with , this Directive shall thus not prejudice the right of Churches and other public or private organisations , the ethos of which is based on religion or belief , acting in conformity with national constitutions and laws , to require individuals working for them to act in good faith and with loyalty to the organisation \u2019s ethos . \u201d","The NORP legislature transposed the Directive into national law by means of LAW ( Gesetz zur GPE europ\u00e4ischer PERSON Gleichbehandlung \u2013 Allgemeines Gleichbehandlungsgesetz ) of DATE . Section CARDINAL thereof reads as follows :","\u201c ( CARDINAL ) Without prejudice to the provisions of LAW [ hereof ] , a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies , by institutions affiliated therewith , regardless of legal form , or by associations whose purpose is to foster a religion or belief in the community , where a justified occupational requirement is constituted by a given religion or belief , having regard to the employer \u2019s own perception , in view of the employer \u2019s right of autonomy or by reason of the nature of its activities .","( CARDINAL ) The prohibition of differences in treatment based on religion or belief shall not affect the right of the religious societies , institutions affiliated therewith , regardless of legal form , or associations whose purpose is to foster a religion or belief in the community , as referred to in the previous subsection , to require their employees to demonstrate loyal and sincere conduct within the meaning of their own perception . \u201d","On DATE ORG sent a letter of formal notice to GPE ( procedure no . CARDINAL ) concerning the transposition of Directive CARDINAL into NORP law and concerning , among other things , \u201c dismissals not covered by anti - discrimination law \u201d . It noted that , whilst the Directive permitted a difference in treatment only if the religion or belief constituted a genuine , legitimate and justified occupational requirement , having regard to the organisation \u2019s ethos , section CARDINAL(CARDINAL ) of ORG also provided for different treatment when the religion or belief constituted an occupational requirement on the basis of its right of autonomy and the religious society \u2019s or association \u2019s own perception , without necessarily having regard to the nature of the activity . According to ORG , such a difference not being covered by the terms of the Directive , this manner of transposition did not fulfil the Directive \u2019s objectives . Such transposition would enable a religious society to define an occupational requirement purely on account of its right of autonomy , without the requirement undergoing a proportionality test in the light of the actual activity . In addition , whilst LAW presented the question in terms of genuine and determining occupational requirements , section CARDINAL(CARDINAL ) of LAW had reduced that notion to CARDINAL of justified occupational requirements , which was a weaker standard than that of the Directive . ORG further observed that , whilst an organisation \u2019s particular ethos played a role in determining the occupational requirement , it should not be the sole criterion , otherwise NORP legislation might not guarantee such a difference in treatment and , even as regards ordinary assistance activities , specific requirements related to religious affiliation might be imposed .","On DATE ORG sent a reasoned opinion to GPE . It was stated in a press release published on DATE ( GPE ) that in its opinion the ORG had pointed out , among other things , that protection against discriminatory dismissals was not covered by NORP anti - discrimination law . The government \u2019s reply to the letter of formal notice , the Commission \u2019s reasoned opinion and the government \u2019s reply to that opinion have not been made public to date ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-120818","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2013,"docname":"SOMICO OOD v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant company , ORG , is a NORP limited liability company , which was set up in DATE and is based in GPE . It was represented before ORG by PERSON , a lawyer practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant company entered into a lease agreement with ORG ( \u201c the BSDC \u201d ) , a body of ORG , renting from it a ORG shop . It appears that the term of the lease agreement was periodically renewed until DATE .","On CARDINAL DATE the applicant company submitted a proposal to ORG to purchase the shop under the preferential privatisation procedure available to lessees of ORG and municipality - owned properties , provided for in section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) .","In a decision of CARDINAL DATE ORG declined the proposal . It reasoned that the conditions under LAW ( CARDINAL ) of LAW had not been met , because the BSDC was not a ORG enterprise and real property included in its assets could not be sold or exchanged .","NORP The applicant company applied for judicial review of ORG refusal . In a judgment of DATE , which was considered final , ORG ( \u201c the ORG \u201d ) quashed the decision of CARDINAL DATE and instructed the ORG to open a privatisation procedure . The ORG held that the shop was owned by the ORG and had been assigned to the ORG for use and management only .","Following that judgment , on DATE ORG opened a procedure for the shop \u2019s privatisation . On DATE its decision to that effect was published in ORG .","On an unknown date the ORG submitted a petition for review ( \u043f\u0440\u0435\u0433\u043b\u0435\u0434 \u043f\u043e \u0440\u0435\u0434\u0430 \u043d\u0430 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 ) of the judgment of DATE .","On DATE a CARDINAL - member panel of the ORG quashed the judgment of DATE and remitted the case to a CARDINAL - member panel of the same court . The CARDINAL - member panel noted that , notwithstanding the fact that the shop was owned by the ORG , it was not subject to privatisation because the ORG did not have the status of a ORG enterprise .","Following a fresh examination , in a judgment of DATE a CARDINAL - member panel of the ORG dismissed the applicant company \u2019s application for judicial review . However , on appeal , in a final judgment of DATE a CARDINAL - member panel of the same court quashed the decision of DATE and instructed ORG to open a privatisation procedure aimed at selling the shop to the applicant company . It considered , most notably , that the shop was the property of the ORG and that the BSDC \u2019s legal status was not an obstacle to the privatisation . It considered , in addition , that the applicant company met all the requirements to benefit from the preferential conditions under LAW ( CARDINAL ) of LAW .","NORP Following that decision , on DATE ORG wrote to the applicant company proposing a price for the shop , inquiring whether the applicant company accepted to buy the shop and inviting it to propose payment conditions .","On DATE the applicant company informed ORG that it agreed to buy the shop at the price proposed . In addition , it suggested a payment scheme .","The signing of the privatisation contract was scheduled for DATE ; however , TIME before the meeting an employee of ORG informed the applicant company by telephone that it would be postponed .","Meanwhile , on DATE ORG inquired with the GPE municipality as to whether there were any restitution claims in respect of the shop . On DATE the regional governor of PERSON replied that on DATE he had decided to transfer the shop to a third party in compensation for their expropriated property ( see below ) .","It transpired subsequently that on DATE the ORG had transferred ownership of the shop to the GPE municipality . On DATE the GPE municipal council included it in the assets of the municipallyowned company managing municipal real properties . It is unclear whether ORG had been informed of those developments at the time .","It also transpired that on DATE a third party \u2013 the heirs of PERSON DATE had requested the transfer of the shop in compensation for expropriated real property . As already mentioned , in a decision of CARDINAL DATE the regional governor granted their request .","The applicant company applied for judicial review of that latter decision . However , on DATE ORG found its application inadmissible , holding that the applicant company had not been a party to the restitution proceedings and therefore had no standing to challenge the impugned decision .","The parties have not informed the ORG whether it was possible for the applicant company to challenge the transfer of the property from the ORG to the municipality , or resort to any other remedy directed against the municipality .","On DATE the applicant company sought judicial review of ORG failure to finalise the privatisation transaction in compliance with the judgment of DATE . However , on DATE the ORG rejected the application for judicial review as inadmissible , holding that the impugned failure to execute a final judicial act did not represent an administrative decision in itself and therefore was not subject to judicial control .","On an unspecified date the applicant company requested the assistance of ORG to finalise the privatisation transaction . In a letter of CARDINAL DATE the Minister of Economy invited ORG to comply with the judgment of DATE .","In letters of DATE , DATE and DATE and DATE the applicant company also invited ORG to finalise the privatisation procedure .","On DATE the ORG informed the applicant company that the shop had been transferred to the GPE municipality and that the regional governor \u2019s subsequent decision to transfer it in compensation to a third party represented a new circumstance which impeded the finalisation of the privatisation transaction .","NORP The applicant company applied for judicial review of ORG refusal . In a judgment of DATE a threemember panel of the ORG quashed the refusal and instructed the ORG to transfer title to the shop to the applicant company . It reasoned that the applicant company had acquired the right to buy the shop and the ORG was therefore obliged to sign the privatisation agreement . However , upon an appeal by ORG , in a final judgment of DATE a CARDINAL - member panel of the ORG found the applicant company \u2019s application for judicial review inadmissible . It held that the ORG \u2019s refusal to sign a privatisation agreement had not amounted to an administrative decision because , at that stage of the privatisation procedure , the CARDINAL parties had been acting on an equal footing . Thus , the existing dispute between them could not be settled in administrative proceedings .","On DATE the applicant company brought a civil action against ORG , seeking to have declared final the preliminary contract which it considered had been reached between them . PERSON and PERSON , heirs of PERSON , intervened in the proceedings with a claim for a declaratory judgment against the applicant company and ORG that they were the owners of the shop on the basis of the regional governor \u2019s decision of DATE .","On DATE ORG dismissed the action of the applicant company and declared that PERSON and PERSON were the owners of the shop . Upon an appeal by the applicant company , on DATE ORG upheld that judgment . It considered , in particular , that following the judgment of DATE ( see paragraph CARDINAL above ) the applicant company and ORG had exchanged correspondence in which they had reached an agreement on the main conditions of the sale of the shop , which represented a preliminary contract . However , ORG had not been the owner of the shop , which meant that the preconditions for declaring the preliminary contract final had not been present .","Following an appeal , in a final judgment of CARDINAL DATE ORG upheld the lower courts\u2019 judgments . It considered , in particular , that the correspondence between the applicant company and ORG did not represent a preliminary contract .","In the meantime , on DATE a notary public , acting with the assistance of the police , put PERSON and PERSON in possession of the shop . It appears that by this time the applicant company , which was still holding the property , was no longer using it and it was in a state of abandon .","The Transformation and Privatisation of State and Municipal Enterprises Act ( ORG \u0437\u0430 \u043f\u0440\u0435\u043e\u0431\u0440\u0430\u0437\u0443\u0432\u0430\u043d\u0435 \u0438 \u043f\u0440\u0438\u0432\u0430\u0442\u0438\u0437\u0430\u0446\u0438\u044f \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u043d\u0438 \u0438 \u043e\u0431\u0449\u0438\u043d\u0441\u043a\u0438 \u043f\u0440\u0435\u0434\u043f\u0440\u0438\u044f\u0442\u0438\u044f : \u201c the LAW \u201d ) of DATE provided for the transformation of public property and the privatisation of ORG and municipality - owned enterprises . It was superseded by other legislation in DATE .","Section CARDINAL of the Act indicated the bodies competent to take decisions on privatisation . As concerns ORG - owned properties , the competent bodies were either ORG , or , for the most important objects , ORG . The body competent to decide on the privatisation of municipally - owned properties was the relevant municipal council .","Under LAW ( CARDINAL ) of LAW , lessees of ORG and municipality - owned property could propose to buy the property rented by them , without a public auction or competition and for a price equal to the property \u2019s value assessed by certified experts in accordance with rules adopted by the ORG . Those preferential conditions were applicable to lessees of ORG and municipality - owned property who had concluded lease contracts before DATE and where the said contracts were still in force on the date of the respective privatisation proposal .","Section CARDINAL ( CARDINAL ) of LAW , as worded after DATE , provided that where a refusal by the competent administrative body to initiate a privatisation procedure following a proposal by the interested party had been quashed by means of a final court judgment , the relevant administrative body was obliged , within DATE of the judgment becoming final , to initiate the privatisation procedure , prepare the privatisation of the property at issue and offer to sell the property to the entitled party .","Paragraph CARDINAL of the transitional and concluding provisions of LAW addressed different situations of conflict of competing privatisation and restitution interests . It provided , in particular , that in cases where a privatisation contract had already been concluded , the parties claiming to have restitution rights were to be compensated through shares in the companies which had acquired the property , if any such shares were owned by the ORG or municipalities , or through compensation bonds ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77734","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"KAHRAMANO\u011eLU v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr \u00d6. K\u0131l\u0131\u00e7 , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) did not designate an Agent for the purposes of the proceedings before the ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE police officers from ORG in GPE arrested the applicant and transferred him to the Anti - Terrorism branch of ORG . He was accused of membership of an illegal organisation called the Revolutionary Left ( ORG ) . It was alleged that he had been involved in armed attacks organised by the said organisation in DATE . In particular , the applicant , whose code name was \u2018 Yusuf\u2019 within the organisation , allegedly took part in the killing of a police superintendent .","On DATE the applicant was questioned by CARDINAL police officers from the Anti - Terrorism branch in relation to his involvement in the organisation . He confessed to being a member of the THKP - C and to having taken part in the killing of the police superintendent . He claimed , however , that he had not been involved in the organisation DATE .","On DATE the applicant was examined by a doctor from ORG . The doctor , MD ORG , reported that the applicant had described to him a sensation of pain in his right shoulder and testicles as well as numbness in his right arm . It was also noted in the report that the applicant had complained of pain when urinating . The doctor concluded that the applicant should be transferred to a ORG hospital for a further neurological and urological examination .","Following his examination in ORG , the applicant was again examined on DATE by PERSON from ORG . Referring to the applicant \u2019s examination by the urology department of the ORG hospital , PERSON noted in his report that there was no pathological finding . However , the neurological examination had indicated that the applicant had felt weakness in the region of his shoulder and shoulder blade and in particular when squeezing his right hand . The applicant had also complained of pain in his right elbow and right shoulder when extending his arm . PERSON thus requested the applicant to undergo an ORG ( electromyogram ) examination DATE .","On DATE the applicant was brought before the public prosecutor attached to ORG , where he denied the charges . He submitted that the incriminating police statements had been taken under torture and that he had not been able to read the statements before signing them . He further stated that he did not have any connections with the said organisation and that he had not been in GPE in DATE .","On DATE , the applicant was taken before ORG . He denied the content of the police statements and maintained that he had been subjected to ill - treatment during his detention in police custody and had been forced to confess to crimes which he had not committed . The court ordered the applicant \u2019s detention on remand .","In an indictment dated DATE the public prosecutor attached to ORG initiated criminal proceedings against the applicant , charging him with membership of a terrorist organisation and recommending the imposition of the death penalty under LAW ( attempt to undermine the constitutional order ) .","On DATE the public prosecutor at ORG issued a decision of non - jurisdiction ratione materiae in relation to the alleged torture of the applicant during his detention in police custody DATE and DATE . Having completed his preliminary investigation , ORG transferred the investigation file containing medical reports and the applicant \u2019s statements to ORG office in LOC .","In a letter of DATE the PERSON public prosecutor requested ORG to instruct the authorities of FAC to take the applicant to a hospital and to have him undergo an ORG examination . On DATE , the public prosecutor wrote a letter to the Anti - Terrorism branch of ORG in which he requested that the names of the police officers who had questioned and taken statements from the applicant be reported to him . He further asked for a copy of the last page of the statements taken from the applicant , the arrest protocols as well as all relevant reports . On DATE ORG transferred the applicant to ORG for an ORG examination . However , given that this hospital lacked ORG facilities , ORG decided to transfer the applicant to ORG in GPE .","In a letter of DATE ORG requested ORG to order the transfer of the applicant to a special prison in GPE with a view to his examination and treatment at ORG .","On DATE the applicant submitted before ORG that he had been subjected to ill - treatment while in police custody .","On DATE the applicant underwent a urine analysis at ORG . The laboratory doctor prescribed antiinflammatory medicine and antibiotics for the applicant . He was then examined by a doctor at the neurology department of the same hospital . The neurologist noted in his report that the applicant felt weakness in his right arm and thus advised an ORG examination .","In a letter dated DATE ORG repeated his earlier request to ORG that the applicant be taken to a hospital for an ORG examination .","By a letter of DATE , ORG requested the authorities of ORG at ORG to provide him with a copy of the last page of the applicant \u2019s statements which were taken during his detention in police custody , the arrest protocols and reports as well as documents pertaining to the permission to hold him in custody . The public prosecutor also asked for the names of the police officers who had taken statements from the applicant or participated in his interrogation . He instructed that those police officers appear before the Fatih Chief Public Prosecutor \u2019s office . On DATE this letter was received by the police officers concerned , namely GPE , GPE , GPE and GPE","On DATE and DATE ORG took statements from GPE , GPE and PERSON , who had all been involved in the interrogation of the applicant . Referring to the medical report dated DATE , which stated that there was no pathological finding on the applicant \u2019s body , the police officers all denied that they had illtreated the applicant . They claimed that such allegations were a routine practice used by members of illegal organisations to deny the crimes which they had committed .","According to a report dated DATE , which was drafted by the ORG Director and signed by CARDINAL prison officers , the applicant refused to leave his cell and to be brought to ORG for an ORG examination . This report was sent to ORG office for information .","On DATE and CARDINAL DATE the applicant , at the request of ORG , was summoned to give evidence before ORG in relation to his allegations of illtreatment . The applicant refused to appear before the court for health reasons .","On DATE the applicant gave evidence before ORG . He alleged that he had been subjected to NORP hanging following his arrest . He had seen through his blindfold the police officers who had hit him . He had also seen the same officers when they had removed his blindfold in order to confront him with PERSON The applicant had filed a complaint through his lawyer about these police officers . He reiterated his request for the prosecution of the police officers who had tortured him .","On DATE the ORG initiated criminal proceedings before ORG against CARDINAL police officers , GPE and GPE , charging them with ill - treatment of the applicant in violation of Article CARDINAL \u00a7 CARDINAL of LAW .","On DATE ORG heard evidence from GPE and GPE They both denied the charges and claimed that they had not been involved in the interrogation of the applicant . PERSON stated that he had only taken statements from the applicant in the course of his transfer to ORG . PERSON claimed that he had only acted as a clerk when taking statements from the applicant .","In a petition dated DATE , filed with ORG , the applicant requested information on the state of the proceedings concerning the prosecution of the impugned police officers .","In a letter dated CARDINAL DATE , which was served on the applicant on DATE in the Sakarya E - type prison , the president of ORG informed him that the criminal proceedings were still pending and that a final hearing was scheduled for DATE .","On DATE ORG delivered its judgment . Referring to the applicant \u2019s testimony dated DATE before ORG in which he had claimed that he had been ill - treated before his statements had been taken , and in view of the police ORG defence submissions , the court found that the CARDINAL accused police officers had merely taken statements from the applicant . However , it was undisputed that the alleged ill - treatment inflicted on the applicant occurred prior to that stage - either during his arrest or at the time of his interrogation . The court further took into consideration the medical report dated DATE which did not indicate any signs of bodily injury . Accordingly , the court concluded that there existed no evidence to substantiate that the applicant had been ill - treated by the accused police officers and therefore acquitted them of the charges . The court \u2019s decision was not served on the applicant since he had not intervened in the criminal proceedings against the accused police officers . As there was no appeal , the decision became final on CARDINAL DATE .","On DATE ORG ordered the applicant \u2019s release pending trial .","On DATE the applicant obtained a copy of ORG decision concerning the acquittal of the police officers .","The lawyer representing the applicant in the ORG proceedings also represented him in the proceedings before ORG .","In the meantime , the applicant provided the ORG with a copy of a document which indicated that ORG , CARDINAL of the accused police officers who had allegedly inflicted ill - treatment on the applicant , had been convicted of inflicting ill - treatment in the past .","On DATE ORG convicted the applicant of attempting to undermine the constitutional order of the ORG and sentenced him to life imprisonment .","On DATE the Deputy to ORG appealed to ORG and requested that the conviction be quashed on the grounds that there was insufficient evidence against the applicant and that the judgment was contradictory . The public prosecutor noted that the only evidence available was the applicant \u2019s statements to the police officers .","On DATE ORG quashed the judgment of DATE . It reasoned that ORG had failed to carry out a sufficient examination of the case in that it had not inquired into the outcome of the criminal proceedings concerning the alleged ill - treatment of the applicant by the security forces and the medical report to that effect .","\u201c CARDINAL . Whoever , being a president or member of a court or council or a public officer , tortures an accused person in order to obtain a confession , shall be punished by a prison sentence of DATE and shall be disqualified from holding public office , temporarily or for life . The offender shall be punished even if he had acted under an order or encouragement from his superior . \u201d","\u201c Any person who is injured as a result of a criminal act may , at any phase of the investigation , intervene in the public prosecution .","Those so intervening may also submit their personal claims for adjudication . \u201d","The intervening party is entitled to request compensation for the prejudice arising from the offence . However , the exercise of this right is subject to procedural rules : the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation . The compensation request is not therefore automatic . It also has to be justified and an assessment of the amount must accompany the request .","Section CARDINAL provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court . Thereupon , the intervening party enjoys the same rights as a prosecutor of personal claims ( section CARDINAL ) . Decisions rendered before the intervention remain valid and , if the public prosecutor does not appeal against the final decision within the requisite time - limit , the intervener loses the right to appeal ( section CARDINAL ) .","Furthermore , according to LAW , if the intervener or his \/ her representative does not attend the trial , the judgment is served on him \/ her . Section CARDINAL empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal . If the intervening party succeeds in his \/ her appeal , the public prosecutor is required to institute criminal proceedings afresh ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77538","languageisocode":"ENG","respondent":"ARM","branch":"ADMISSIBILITY","date":2006,"docname":"POGHOSYAN v. ARMENIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr G. Kostanyan , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On an unspecified date , the applicant instituted civil proceedings against CARDINAL individuals , A. , DATE , seeking to recover certain property and damages for lost profit .","On DATE the PERSON and Nor ORG of GPE ( PERSON \u0587 PERSON \u0570\u0561\u0574\u0561\u0575\u0576\u0584\u0576\u0565\u0580\u056b \u0561\u057c\u0561\u057b\u056b\u0576 \u0561\u057f\u0575\u0561\u0576\u056b \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) partially granted the applicant 's claim and ordered that the property belonging to him be returned . His claim for damages was rejected .","On DATE ORG ( \u0540\u0540 \u0584\u0561\u0572\u0561\u0584\u0561\u0581\u056b\u0561\u056f\u0561\u0576 \u0563\u0578\u0580\u056e\u0565\u0580\u0578\u057e \u057e\u0565\u0580\u0561\u0584\u0576\u0576\u056b\u0579 \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) upheld this judgment .","On DATE ORG ( \u0540\u0540 \u057e\u0573\u057c\u0561\u0562\u0565\u056f \u0564\u0561\u057f\u0561\u0580\u0561\u0576 ) quashed this judgment in its part concerning damages and remitted for a new examination .","On DATE ORG partially granted the applicant 's claim for damages and awarded him CARDINAL NORP drams ( ORG ) ( TIME . ORG CARDINAL,CARDINAL at the material time ) to be paid jointly by the co - defendants .","On DATE ORG upheld this judgment in the final instance . The judgment entered into force .","On DATE ORG issued a writ of execution .","On DATE ORG ( the DEJA ) ( \u0534\u0561\u057f\u0561\u056f\u0561\u0576 \u0561\u056f\u057f\u0565\u0580\u056b \u0570\u0561\u0580\u056f\u0561\u0564\u056b\u0580 \u056f\u0561\u057f\u0561\u0580\u0578\u0582\u0574\u0576 \u0561\u057a\u0561\u0570\u0578\u057e\u0578\u0572 \u056e\u0561\u057c\u0561\u0575\u0578\u0582\u0569\u0575\u0578\u0582\u0576 ) instituted enforcement proceedings . On DATE , the Bailiff ( \u0570\u0561\u0580\u056f\u0561\u0564\u056b\u0580 \u056f\u0561\u057f\u0561\u0580\u0578\u0572 ) made a decision to arrest any immovable and movable property belonging to the co - defendants . On DATE the Bailiff made inquiries with various public authorities , seeking to disclose such property .","On DATE and DATE the Bailiff was informed by the vehicle registration authorities that no cars were registered in the co - defendants ' names . On CARDINAL and DATE the ORG was informed by the tax authorities that the co - defendants were not registered as tax payers .","On DATE the Bailiff visited the co - defendants for enforcement purposes and DATE drew up records on the failure to disclose any movable property to be confiscated . As to immovable property , the only such property disclosed was a CARDINAL share in a flat belonging to co - defendant PERSON share in the same flat belonging to co - defendant A. had been already confiscated by the courts for him to be able to meet another judgment debt . On DATE the Bailiff decided to arrest the share in the flat belonging to defendant P.","By a letter of DATE the Bailiff instructed the applicant to apply to the relevant court , to have this share severed and confiscated in accordance with LAW .","On DATE the applicant lodged an application with the PERSON and Nor ORG of GPE addressed to the President and the judge who had presided over his case , with the following content :","\u201c To : The President of the PERSON and Nor ORG , [ Mr. PERSON ] , and the judge who had presided over the trial , [ Mr. PERSON ]","From : [ The applicant ( address ) ]","CARDINAL Application - claim","Dear [ Mr. PERSON and B. ] ,","A sum of QUANTITY was awarded to me by a final judgment made against [ co - defendants A. , P. and H. ] . The court seized the flat ... belonging to the above mentioned persons . However , the ORG has been informed in writing that by a judgment of DATE ... [ co - defendant A. ] lost his ownership in respect of this flat , despite the fact that this flat should have been seized [ already ] on DATE . For this reason , the ORG instructs me to have the share in the flat belonging to [ co - defendant P. ] severed and confiscated by applying to [ your court ] .","Based on the above , I ask you to fulfil the instruction given by the ORG . \u201d","Attached to this application were a copy of the judgment of DATE and the ORG 's letter of DATE .","By an undated letter the Acting President of the PERSON and Nor ORG of GPE ( PERSON \u0587 PERSON \u0570\u0561\u0574\u0561\u0575\u0576\u0584\u0576\u0565\u0580\u056b \u0561\u057c\u0561\u057b\u056b\u0576 \u0561\u057f\u0575\u0561\u0576\u056b \u0564\u0561\u057f\u0561\u0580\u0561\u0576\u056b \u0576\u0561\u056d\u0561\u0563\u0561\u0570\u056b \u056a\u0561\u0574\u0561\u0576\u0561\u056f\u0561\u057e\u0578\u0580 \u057a\u0561\u0577\u057f\u0578\u0576\u0561\u056f\u0561\u057f\u0561\u0580 ) informed the applicant that :","\u201c In reply to your application I would like to inform you that the court examines civil cases and issues judgments , following which [ the ORG ] enforces these judgments on the basis of execution writs . \u201d","On DATE the applicant lodged an application with ORG addressed to judge PERSON who had presided over his case , with virtually the same content . At the end the applicant added :","\u201c I ask you to issue a decision to sever and confiscate the share belonging to [ co - defendant P. ] , since , after having applied to the first instance court , I have received a meaningless reply . \u201d","On DATE the applicant complained to the President of ORG that :","\u201c As instructed by the [ relevant ] branch of the ORG , I applied to your court seeking to have a share in a flat belonging to [ co - defendant P. ] severed and confiscated , since , after having applied with this request to the PERSON and Nor ORG , I have received an indefinite reply . However , your judge [ PERSON ] avoids giving any written reply , whether positive or negative . \u201d","By a letter of DATE judge PERSON replied that ORG had no competence to deal with obstacles arising in the enforcement stage and advised the applicant to apply to the relevant first instance court .","On an unspecified date , following the communication of the present application to the respondent Government , i.e. DATE , co - defendant PERSON voluntarily paid the sum of money he owed to the applicant .","On an unspecified date , the Bailiff decided to terminate the enforcement proceedings .","According to LAW , the Bailiff must implement the enforcement activities within DATE from the date of receipt of the execution writ , which does not include the period when the enforcement activities are in the process of an auction or the period required for finding the debtor or disclosing any property belonging to him , unless the law prescribes a shorter period for the enforcement or an immediate enforcement .","According to LAW , if a co - owner of a shared or joint property does not have other sufficient means , the creditor can seek to have the debtor 's share severed from the common property in order to have it confiscated . If it is impossible to sever the share in kind or if the other co - owners of the shared or joint property object to it , the creditor can require the other co - owners of the common property to buy the debtor 's share at the market price in order to pay the debt . If the other co - owners of the common property refuse to buy the debtor 's share , the creditor can have the debtor 's share in the common property confiscated through court proceedings and sold at a public auction . \u201d","According to LAW , the court institutes civil proceedings only on the basis of a claim or an application .","LAW , CARDINAL DATE provides that an application to court must be submitted in writing . The application must contain : CARDINAL ) the name of the court applied to ; CARDINAL ) names and addresses of the parties ; CARDINAL ) the sum sought , if the claim has a value ; CARDINAL ) circumstances on which the claims are based ; CARDINAL ) documents substantiating the claims ; CARDINAL ) an estimate of the contested sum or the sum to be confiscated ; CARDINAL ) the applicant 's demands , and if several defendants are sued , the applicant 's demands directed against each of them ; and CARDINAL) a list of attached documents . The application may also contain other relevant information , if they are necessary for the proper determination of the case , as well as the applicant 's motions . The application must be signed by the applicant or an authorised representative .","According to LAW , CARDINAL , DATE and DATE , the judge shall return the application if , inter alia , the requirements contained in LAW as to its form and substance have not been complied with . The court shall adopt a decision to return the application within DATE of its receipt . If the application is returned , the applicant could re - apply after having corrected its defects . If disagreeing with the decision to return the application , the applicant can apply to the president of the court for a review , within DATE of its receipt . The president of the court shall examine the application within DATE and adopt a decision on it .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL provides that a judicial act , which does not determine the case on its merits , shall be adopted in the form of a decision . A decision adopted as a separate document shall contain : CARDINAL ) the name of the court , its composition , the case number , the date , the subject of the dispute ; CARDINAL ) the names of the parties ; CARDINAL ) the question to be decided ; CARDINAL ) the reasons which led to the court 's conclusions , including references to laws and other legal acts ; CARDINAL ) the conclusion on the question being decided ; and CARDINAL ) the procedure and time - limit for lodging an appeal , if the decision is subject to appeal .","According to LAW regulates the relations connected with the examination , in a procedure and within the time - limits prescribed by law , of proposals , applications and complaints of citizens and legal persons by the ORG , public and other authorities , the local self - government , the relevant officials and organisations , with the response to the facts of violations of rights and lawful interests of citizens and legal persons , and with the elimination and prevention of such violations . This PERSON does not apply to the procedure for the examination of proposals , applications and complaints of citizens prescribed by LAW , LAW , the labour and other laws .","DATE provides that the ORG authorities , the local self - government and the relevant officials are obliged , inter alia , to admit and to examine , within the scope of their competence and in the procedure and within the time - limits prescribed by law , the proposals , applications and complaints of citizens , to reply to them and to take other relevant measures ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58284","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1999,"docname":"CASE OF SCARTH v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"Lucius Caflisch","text":["The facts of the case , as found by the ORG and not contested before the ORG , are as follows :","On DATE , proceedings for recovery of a debt of MONEY ( GBP ) were commenced by ORG against the applicant in ORG .","By reason of LAW , rule CARDINAL ( CARDINAL ) , of ORG DATE the case was referred for hearing by way of arbitration under LAW , rule CARDINAL , of ORG .","On DATE a preliminary hearing took place . The plaintiff did not attend , and Mr GPE requested that the claim be struck out . LOC ( the arbitrator ) refused to do so .","Mr GPE made an application for the main hearing to be in public and for evidence to be given on oath . This application was heard on DATE and refused . The reasons for the refusal were not recorded formally , but in a note of CARDINAL DATE prepared in the context of the LAW proceedings , ORG made the following comments :","\" At this stage I can only say that it is likely that I took the view that the [ applicant 's ] reasons as set out in his application were not in my view good reasons for the private nature of arbitration proceedings to be dispensed with . Further the sum of the dispute and the nature of the dispute were basically no different from the usual \" run of the mill \" arbitration disputes heard in any county court . Lastly , at the time the arbitration hearing had been fixed , prior to the filing of the application [ for the case to be heard in open court ] . I can not say with certainty the above are the reasons I gave . The earlier fixing of an arbitration hearing date would have carried little weight with me if I had considered the application had any particular merit . ... \"","The arbitration hearing took place in private on DATE . On CARDINAL DATE ORG PERSON made his award in writing , finding in favour of the plaintiff .","Mr GPE made an application for the arbitration award to be set aside on the ground that there had been \" misconduct \" or \" errors of law \" by the District Judge , pursuant to LAW , rule CARDINAL ( CARDINAL ) , of ORG DATE .","The hearing of the application to set aside took place before a Recorder in private . He refused the application on CARDINAL DATE and made a costs order against Mr GPE . These costs were subsequently assessed at GBP DATE .","Mr GPE then applied for leave to appeal to ORG alleging a lack of public hearing , misconduct by the judge and an overall unfairness of the proceedings . Mr GPE was heard in open court and leave was refused on CARDINAL DATE . Lord Justice PERSON noted that LAW is not part of our law in the way ORG law is , and the provisions of the county court rule to which I have referred entitled LOC to hold the hearing in private \" . He further found that the judge could not be said to have been guilty of any misconduct and rejected Mr GPE \u2019s allegations as to unfairness . In connection with a submission that the District Judge was wrong on CARDINAL particular point of law , he continued : \" That seems to me to be a matter largely of fact , because if these CARDINAL cheques were handed over for value and either of them was countermanded and subsequently presented , then it would seem that there would be a cause of action on the cheque ... \" .","Order CARDINAL , rule CARDINAL ( CARDINAL ) , of ORG ( \" the Rules \" ) , as in force at the relevant time , states that any proceedings in which the sum claimed or amount involved does not exceed GBP CARDINAL shall be referred for arbitration .","Order CARDINAL , rule CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) , of the LAW provides as follows :","\" ( CARDINAL ) Any proceedings referred to arbitration shall be dealt with in accordance with the following paragraphs of this rule unless the arbitrator otherwise orders .","( CARDINAL ) The hearing shall be informal and the strict rules of evidence shall not apply ; unless the arbitrator orders otherwise , the hearing shall be held in private and evidence shall not be taken on oath .","( CARDINAL ) At the hearing the arbitrator may adopt any method of procedure which he may consider to be fair and which gives to each party an equal opportunity to have his case presented ; ... \"","Order CARDINAL , rule CARDINAL ( CARDINAL ) , of the Rules reads as follows :","\" Where proceedings are referred to arbitration , the award of the arbitrator shall be final and may only be set aside ... on the ground that there has been misconduct by the arbitrator or that the arbitrator made an error of law . \"","NORP In monetary matters of MONEY CARDINAL,CARDINAL , and wherever ORG judge makes his order in an appellate capacity , leave to appeal must be obtained before a ORG order may be appealed to ORG ( see ORG , LAW , rule DATE , referring to ORG DATE ) .","Under LAW , which came into force on DATE , hearings , including those in small claims cases , are to be held in public . There is a discretion for the court to hold a hearing in private where :","( a ) publicity would defeat the object of the hearing ;","( b ) it involves matters relating to national security ;","( c ) it involves confidential information ( including information relating to personal financial matters ) and publicity would damage that confidentiality ;","( d ) a private hearing is necessary to protect the interests of any child or person suffering from mental incapacity ;","( e ) it is a hearing of an application made without notice and it would be unjust to the respondent for there to be a public hearing ;","( f ) it involves non - contentious matters arising in the administration of trusts or in the administration of a deceased person \u2019s estate ; or","( g ) the court considers a private hearing to be necessary in the interests of justice ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58876","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2000,"docname":"CASE OF KARAKASIS v. GREECE","importance":3,"conclusion":"Preliminary objection rejected (six months);Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["On DATE and CARDINAL DATE criminal complaints were lodged against the applicant for instigation to fraud and for issuing checks for the payment of which there were no adequate funds . The prosecutor instituted criminal proceedings against him .","In DATE the investigating judge ordered the applicant \u2019s provisional detention ( warrant No . CARDINAL ) . However , the applicant evaded arrest .","On DATE the indictments chamber of the first instance criminal court ( simvulio plimmeliodikon ) of GPE decided to commit the applicant for trial to the CARDINAL - member ORG ( trimeles efetio ) of GPE , sitting as a first instance court , on the above charges . The chamber confirmed the investigating judge \u2019s warrant concerning the applicant \u2019s detention .","On DATE the indictments chamber decided to commit the applicant for trial on a number of supplementary charges .","NORP The applicant was arrested on DATE . Until DATE the applicant was deemed to be serving a sentence that had been imposed on him for unrelated offences in DATE . As a result , the applicant \u2019s detention on remand on the fraud and other charges mentioned above officially started on DATE .","On DATE the applicant applied for his provisional release . On CARDINAL DATE the indictments chamber of ORG of GPE rejected his application .","On DATE the applicant appeared , together with ORG , JK and DK , before the CARDINAL - member ORG of GPE . He was represented by counsel who also acted for ORG and JK . The trial lasted until DATE when the court heard the final submissions of the parties on the question of guilt of the applicant and his co - defendants . Then the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict PERSON and JK .","The relevant decision was pronounced and then the court heard submissions on the sentences to be imposed on ORG and DATE . Counsel who represented the applicant as well as ORG and JK was heard in this connection . The court withdrew for deliberations in the course of which it decided on the penalties to be imposed . It also decided that \u201c the applicant should not be compensated for the time he spent in detention on remand \u201d . The relevant decision was pronounced on DATE , i.e. on DATE .","NORP However , its text was finalised ( katharographi ) on DATE . The applicant was informed of this development later on and obtained a certified copy on DATE .","The Code of Criminal Procedure provides as follows :","\u201c Persons who have been detained on remand and subsequently acquitted ... have the right to request compensation ... , if it has been established in the proceedings that they did not commit the criminal offence for which they have been detained on remand . \u201d","\u201c The ORG does not have any obligation to compensate a person who ... has been detained on remand if the latter , intentionally or by gross negligence , was responsible for his own detention . \u201d","\u201c Upon an application submitted orally by the person who has been acquitted , the court which heard the case shall decide on the ORG 's obligation to pay compensation in a separate decision issued at the same time as the verdict . However , the court may also issue such a decision proprio motu ...","The decision regarding the obligation of the ORG to pay compensation can not be challenged separately ; it is , however , quashed when the decision on the principal issue of the criminal trial is reversed . \u201d","\u201c The person who has suffered prejudice may request compensation at a later stage before the same court .","In these circumstances , the application must be submitted to the public prosecutor of this court strictly within TIME from the pronouncement of the judgment in open court . \u201d","\u201c After it has been decided that the ORG must pay compensation , the person entitled thereto may bring his claim before the civil courts , which may not re - examine the existence of the ORG 's obligation . \u201d","\u201c Persons who have been unfairly ... detained on remand must be compensated for any material prejudice they have suffered as a result of their ... detention . They must also be compensated for moral damage ... . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67071","languageisocode":"ENG","respondent":"DNK","branch":"CHAMBER","date":2004,"docname":"CASE OF PEDERSEN AND PEDERSEN v. DENMARK","importance":4,"conclusion":"No violation of Art. 6-1","judges":"Christos Rozakis","text":["On DATE the first applicant , as the owner of CARDINAL freshwater fish farms , was charged with offences against the LAW on freshwater fish farms of DATE ( bekendtg\u00f8relse nr . CARDINAL ) , henceforth also called LAW , as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment , and with enrichment for himself .","On DATE an indictment was submitted to ORG in GPE ( ORG ) before which the trial was scheduled for DATE . However , the trial was adjourned awaiting the outcome of a corresponding pending criminal case , considered to be a \u201c test - case \u201d , in which the defendant had alleged inter alia that LAW had no legal authority as it contravened articles of LAW and provisions of LAW ( PERSON ) . The Government claimed that the adjournment was initiated by the first applicant \u2019s counsel . The applicant contested this . It is undisputed , however , that the parties agreed to the adjournment and that no objections were raised against it . The proceedings in the test - case were finally determined on appeal by a ORG judgment of CARDINAL DATE .","Subsequent to a preliminary hearing held in the applicant \u2019s case on DATE it was decided to adjourn his case anew awaiting another corresponding pending criminal case , considered to be a test - case , in which the defendant had alleged that the DATE Act had no legal authority as ORG had not been notified of it as allegedly prescribed by the CARDINAL\/CARDINAL\/EEC ORG CARDINAL laying down a procedure for the provision of information in the field of technical standards and regulations , amended by the CARDINAL\/CARDINAL\/EEC ORG . The proceedings in the corresponding case were finally determined on appeal in DATE when a ORG delivered its judgment .","The applicant \u2019s trial commenced on DATE . Since a witness on the applicant \u2019s behalf was prevented from appearing on DATE , the trial continued and ended on DATE . By judgment of CARDINAL DATE ORG in GPE convicted the applicant and sentenced him to pay a fine of CARDINAL Danish kroner ( DKK ) . In addition a profit estimated to DKK CARDINAL was confiscated .","On DATE the applicant appealed against the judgment to ORG GPE ( PERSON ) before which he was granted permission to procure an expert witness , who during the preparation of the case was requested to reply in writing to specific questions formulated by counsel , and approved by the prosecutor .","NORP By judgment of CARDINAL DATE ORG GPE upheld the applicant \u2019s conviction , but increased the fine to DKK CARDINAL and the amount to be confiscated to DKK CARDINAL .","The applicant \u2019s request of DATE for leave to appeal against ORG judgment to ORG ( H\u00f8jesteret ) was granted by the Leave to Appeal Board ( Procesbevillingsn\u00e6vnet ) on DATE .","The case was brought before ORG on DATE , where it was joined with the second applicant \u2019s appeal ( see below ) .","II","On DATE , the second applicant , as manager of CARDINAL limited companies which each owned a freshwater fish farm , was charged with offences against the amended LAW DATE on freshwater fish farms partly in conjunction with LAW of DATE ( bekendtg\u00f8relse nr . CARDINAL jfr . tildels bekendtg\u00f8relse nr . CARDINAL ) , as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment , and with enrichment for the companies .","The case was brought before ORG in Mariager ( retten i Mariager ) by the prosecution \u2019s submission of an indictment of DATE , which was later extended by supplementary indictments .","In the period DATE and DATE the case was adjourned awaiting the outcome of a corresponding pending criminal case , which was considered to be a test - case .","On DATE the proceedings were adjourned at the request of the applicant \u2019s counsel , who wished to submit a written pleading . On CARDINAL DATE counsel requested an extension of the time - limit for submitting his pleading . On DATE he stated that his pleading was approaching . On DATE he was granted yet another extension of the timelimit , and on DATE the pleading was submitted .","Further pleadings were submitted and additional preliminary issues were dealt with , inter alia with regard to counsel \u2019s request that the applicant \u2019s case be joined with another corresponding pending case .","On DATE counsel was granted an extension of the timelimit to submit his rejoinder within DATE .","A hearing was held on DATE and the case was scheduled to commence on DATE as counsel had stated that he was unable to appear before that date .","On DATE ORG in PERSON convicted the applicant and sentenced him to pay a fine of DKK CARDINAL . In addition profits estimated to DKK CARDINAL and DKK CARDINAL , respectively , were confiscated in the companies .","On DATE the applicant appealed against the judgment to ORG , before which the case was ready to be listed for trial on DATE . As counsel was unable to appear on the proposed dates in DATE , DATE and DATE , the case was scheduled for trial on DATE .","By judgment of DATE the High Court of Western GPE upheld the applicant \u2019s conviction , but increased the fine to DKK CARDINAL and the amounts to be confiscated to DKK CARDINAL and DKK CARDINAL respectively .","The applicant \u2019s request of CARDINAL DATE for leave to appeal against ORG judgment to ORG was granted by the Leave to Appeal Board on DATE .","The case was brought before ORG on DATE , where it was joined with the first applicant \u2019s appeal . The applicants jointly argued that the LAW of DATE had no legal authority as ORG had not been notified of it as allegedly prescribed by the CARDINAL\/CARDINAL\/EEC ORG CARDINAL laying down a procedure for the provision of information in the field of technical standards and regulations , amended by the CARDINAL\/CARDINAL\/EEC ORG , and that accordingly they should be acquitted . Moreover , they requested that ORG referred the question of the legal consequences of the non - notification to ORG pursuant to the former LAW .","As to the latter the Prosecutor General procured an opinion from ORG of DATE , finding no basis for a preliminary reference , an opinion he endorsed . On DATE ORG requested counsel \u2019s comment on this issue .","On DATE the applicants requested that an additional counsel be assigned to plead on the ORG - law issues of the case . This was refused by ORG on DATE . DATE , the applicants requested that a named attorney substitute their counsel as to the ORG issues . This request was granted on DATE and the proceedings were adjourned for DATE pending comments from the substituting counsel .","It appears that the substituting counsel CARDINAL times was granted an extension of the time - limit to submit his comments , thus his first written pleading was submitted on DATE .","The Prosecutor General stated definitively on DATE that he found no basis for referring the case to ORG for a preliminary ruling .","The exchange of pleadings on this question continued until DATE , as the substitute counsel CARDINAL times requested that the Prosecutor General submit written replies to various questions put by counsel on the issue . Each time the replies were followed by a comprehensive pleading by the substitute counsel .","On DATE ORG decided not to refer the case to ORG for a preliminary ruling , as it found that there was no obligation to notify ORG of the specific section of the LAW on freshwater fish farms of DATE , with which the applicants were charged , and that there was no reasonable doubt that the section in question was in accordance with ORG legislation .","By judgment of DATE ORG upheld the High ORG \u2019s judgment in respect of the first applicant , but reduced the amount to be confiscated to DKK CARDINAL , and by judgment of the same date ORG upheld ORG judgment in its entirety in respect of the second applicant ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83043","languageisocode":"ENG","respondent":"MKD","branch":"CHAMBER","date":2007,"docname":"CASE OF STOJKOVIC v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Peer Lorenzen","text":["DATE and DATE the applicant worked as a manager of a joint stock company ( \u201c the employer \u201d ) . On DATE he was dismissed by the employer \u2019s disciplinary commission , a decision which was confirmed by the executive board on CARDINAL DATE .","On DATE the applicant brought an action against the employer to annul his dismissal and for his reinstatement as a manager .","On DATE the then ORG ( \u041e\u043f\u0448\u0442\u0438\u043d\u0441\u043a\u0438 \u0421\u0443\u0434 \u0428\u0442\u0438\u043f ) dismissed his claim .","On DATE the then ORG ( \u041e\u043a\u0440\u0443\u0436\u0435\u043d \u0421\u0443\u0434 \u0428\u0442\u0438\u043f ) upheld his appeal of DATE and remitted the case for a re - examination .","Of QUANTITY hearings scheduled before the first - instance court , none was adjourned at the applicant \u2019s request .","On DATE the then ORG dismissed his claim . That decision was upheld by then ORG decision of DATE dismissing his appeal of CARDINAL DATE .","On DATE the applicant lodged an appeal on points of law ( \u0440\u0435\u0432\u0438\u0437\u0438\u0458\u0430 ) which was granted by ORG decision of DATE . On DATE the then ORG again upheld the first - instance decision of DATE .","On DATE the applicant submitted a fresh appeal on points of law before ORG . On DATE ORG quashed both the first- and second - instance decisions and remitted the case for a renewed examination . It ruled that the lower courts had erroneously established that the employer \u2019s meeting of shareholders ( \u0441\u043e\u0431\u0440\u0430\u043d\u0438\u0435 \u043d\u0430 \u0430\u043a\u0446\u0438\u043e\u043d\u0435\u0440\u0438 ) and the strike board ( \u0448\u0442\u0440\u0430\u0458\u043a\u0443\u0432\u0430\u0447\u043a\u0438 \u043e\u0434\u0431\u043e\u0440 ) had discharged the applicant as the employer \u2019s manager prior to the disciplinary commission having given the dismissal decision ( see paragraph CARDINAL above ) . According to the minutes of their meeting of DATE , they had only voted against him , but had left the matter to be decided by the disciplinary commission .","On CARDINAL DATE the applicant requested the removal of the first - instance judge for bias . On DATE the President of ORG Instance dismissed that request as unsubstantiated .","According to the information submitted by the parties , none of the CARDINAL hearings fixed by the first - instance court was adjourned at the applicant \u2019s request .","On DATE ORG annulled the DATE dismissal order finding that it was not given by an authorised body . However , it dismissed the applicant \u2019s claim for his reinstatement to a post corresponding to his qualifications since bankruptcy proceedings had been meanwhile launched against the employer . The employer \u2019s receiver ( \u0441\u0442\u0435\u0447\u0430\u0435\u043d \u0443\u043f\u0440\u0430\u0432\u043d\u0438\u043a ) could decide the reinstatement issue .","On DATE ORG quashed this decision as incoherent and ordered a retrial arguing that the lower court had erred in establishing the facts concerning the body competent to decide on the dismissal .","After CARDINAL hearings being fixed , on DATE ORG Instance dismissed the applicant \u2019s claims finding that : he was discharged as the employer \u2019s manager by the executive board on DATE ; under an application for disciplinary proceedings submitted by the strike board , the newly appointed manager requested the disciplinary commission to dismiss him for having committed serious work - related violations , which was actually done by the commission \u2019s decision of CARDINAL DATE ; and the executive board dismissed his objection by decision of CARDINAL DATE . The court therefore concluded that the applicant \u2019s claims were ill - founded . This decision was given by another first - instance judge . On DATE ORG upheld this decision .","On DATE the applicant submitted an appeal on points of law before ORG arguing that the lower courts had wrongly established and assessed the facts .","The applicant died on DATE .","On DATE ORG finally dismissed his appeal finding that the lower courts had properly established the facts and correctly applied the national law . According to a note written on the slip receipt , on DATE there was an unsuccessful attempt to serve this decision due to the applicant \u2019s death . The applicant \u2019s successors maintained that they learnt about this decision only on DATE when they received the ORG \u2019s observations . The Government did not contest that assertion .","During the proceedings , the applicant applied several times to the first - instance court to expedite the proceedings . His requests for priority treatment submitted before ORG were refused . He also notified ORG about the protracted length of the proceedings .","LAW of the then LAW ( ORG \u0437\u0430 \u043f\u0430\u0440\u043d\u0438\u0447\u043d\u0430\u0442\u0430 \u043f\u043e\u0441\u0442\u0430\u043f\u043a\u0430 ) ( \u201c the Act \u201d ) provided that it was incumbent upon the court to undertake to conduct the proceedings without undue delay and economically , and to avoid any attempt of abuse of the rights afforded to the parties concerned .","LAW of the LAW provided , inter alia , that the court should take into consideration the necessity of urgent settlement of employment disputes .","Section CARDINAL of LAW ( ORG \u0437\u0430 \u0441\u0443\u0434\u043e\u0432\u0438\u0442\u0435 ) of DATE ( \u201c the CARDINAL Act \u201d ) provides that a party concerned can lodge with the immediate higher court ( \u043d\u0435\u043f\u043e\u0441\u0440\u0435\u0434\u043d\u043e \u043f\u043e\u0432\u0438\u0441\u043e\u043a\u0438\u043e\u0442 \u0441\u0443\u0434 ) an application for the protection of the right to a hearing within a reasonable time if he \/ she considers that it has been violated by a court of competent jurisdiction . The immediate higher court considers the application ( \u043f\u043e\u0441\u0442\u0430\u043f\u0443\u0432\u0430 \u043f\u043e \u0431\u0430\u0440\u0430\u045a\u0435\u0442\u043e ) within DATE after it has been lodged and decides whether the court below violated the right to a hearing within a reasonable time . The higher court shall award just satisfaction to the claimant if it finds a violation of the right to a hearing within a reasonable time . The just satisfaction shall be paid from the ORG \u2019s budget . LAW became applicable on DATE ( section CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84266","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2008,"docname":"CASE OF ER\u0130\u015e v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Andr\u00e1s Baka;Fran\u00e7oise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in GPE .","\u201c Sensitivity on the left lumbar region and on the lower part of the left hemithorax has been observed . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80550","languageisocode":"ENG","respondent":"LTU","branch":"ADMISSIBILITY","date":2007,"docname":"MORKUNAS v. LITHUANIA","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant , who had a criminal record of CARDINAL convictions , was arrested on DATE and questioned on suspicion of blackmail and extortion committed against a businessman .","On DATE his detention on remand was authorised for DATE by ORG for fear that the applicant might commit fresh offences and obstruct the investigation . The applicant and his lawyer were present at the hearing .","On DATE the applicant was charged with attempted extortion committed in an organised group . On the same date , ORG extended the term of the applicant \u2019s detention until CARDINAL DATE on the same grounds , the applicant \u2019s lawyer being present . The applicant \u2019s appeal against that order was rejected by ORG on DATE , in the presence of his lawyer .","On DATE the ORG extended the term of the applicant \u2019s remand in custody until DATE on the same grounds , i.e. , for fear that the applicant might commit new crimes or obstruct the investigation . Both the applicant and his lawyer were present .","His appeal against the extension order was rejected on DATE , the applicant \u2019s defence counsel being present .","On DATE the term of the applicant \u2019s remand was extended until CARDINAL September CARDINAL by ORG on the same grounds as before , the applicant and his lawyer being present . The applicant appealed , requesting the variation of his remand . He pleaded not guilty and alleged that there was no fear of him absconding since he had a family and a permanent place of residence . The appeal was dismissed by ORG on DATE , in the presence of the applicant \u2019s defence counsel . The court considered that the grounds for his detention persisted .","On DATE the ORG authorised the applicant \u2019s detention on remand until DATE , in the presence of the applicant and his lawyer . The court briefly noted that the applicant \u201c was accused of having committed serious offences , hence there was a reason to believe that he may commit new crimes if released . \u201d On DATE ORG dismissed the applicant \u2019s appeal against the decision , his representative being present . The appellate court noted , inter alia , that the applicant was suspected of heading a criminal organisation , thereby justifying the fear of his committing fresh crimes and influencing witnesses .","On DATE ORG extended the applicant \u2019s detention on remand until DATE . While the court emphasised the necessity to expedite the investigation of the case , it considered that continued detention was justified by the fear that the applicant might abscond and commit fresh crimes . The applicant and his defence counsel were present . The applicant \u2019s appeal against that order was dismissed by ORG on DATE , his lawyer being present .","During DATE , in the context of several other sets of criminal proceedings , the applicant was charged with attempted aggravated murder , the destruction of property by organising explosions , forming a criminal organisation , and false reporting of a crime . Those charges were subsequently added to the original proceedings against the applicant .","On DATE the ORG extended the term of the applicant \u2019s detention until DATE for fear of his absconding and committing new offences . The court found that the serious charges against the applicant and his CARDINAL previous convictions justified that fear . The applicant and his defence counsel were present at the hearing .","On DATE ORG dismissed the applicant \u2019s appeal against the extension of the term of his detention on remand , upholding the reasoning of the lower court .","On DATE the ORG extended the term of the detention until DATE on the same grounds as before , the applicant and his lawyer being present .","The bill of indictment in the applicant \u2019s case was confirmed on DATE . He was indicted on CARDINAL counts , including attempted murder , extortion , involvement in a criminal association , the destruction or property and the illegal acquisition of explosives . CARDINAL other co - accused were indicted with the applicant ; CARDINAL witnesses were identified , and the case materials comprised CARDINAL volumes .","On DATE , ORG dismissed the applicant \u2019s appeal against the prolongation of his detention on remand .","On DATE ORG held a hearing in the presence of the applicant and his defence counsel and decided further to extend the applicant \u2019s remand in custody until DATE , for fear of his absconding , committing new crimes and obstructing the investigation . The court mentioned the gravity of the charges against the applicant and the strength of the evidence in the case file to justify that fear . The applicant appealed , claiming that the evidence against him was not sufficient to warrant his prolonged detention . On DATE ORG rejected the applicant \u2019s appeal in the presence of his lawyer .","On DATE ORG held a directions hearing in the presence of the applicant \u2019s defence counsel , whereby it decided to return the case to the investigators . On the same occasion , the court dismissed the applicant \u2019s request to vary the remand measure .","On DATE the ORG extended the term of the applicant \u2019s remand in custody until DATE on the same grounds as before . The applicant and his defence counsel were present at the hearing . On DATE ORG dismissed his appeal against the order in the presence of counsel .","On DATE ORG quashed the decision of CARDINAL DATE , returning the case to ORG for trial . On the same occasion , the court extended the term of the applicant \u2019s detention on remand until DATE , noting that the grounds for the continued detention on remand persisted . The applicant and his lawyer were present at the hearing . The applicant lodged a cassation appeal against the decision of CARDINAL DATE , but it was dismissed by ORG on DATE .","On DATE ORG extended the term of the applicant \u2019s remand in custody until DATE for fear of his obstructing the investigation and committing fresh crimes . The court noted the applicant \u2019s criminal record , the gravity of the charges against him and the strength of the evidence in the case file to justify that fear . The applicant and his representative were present at the hearing .","On DATE the ORG committed the applicant for trial .","On the same date ORG extended the term of the applicant \u2019s detention on remand until DATE on the same grounds . The applicant and his defence counsel were present at the hearing . The applicant \u2019s appeal against that order was dismissed by ORG on DATE . ORG observed that the trial of the case had been prolonged , but noted that the delay was not imputable to the trial court .","On DATE the ORG extended the term of the applicant \u2019s remand in custody until DATE on the same grounds , the applicant \u2019s lawyer being present . The applicant \u2019s appeal against the order was dismissed by ORG on DATE .","On DATE a prosecutor confirmed a bill of indictment in another criminal case whereby the applicant was charged on CARDINAL counts , including causing grievous bodily harm , theft and extortion . CARDINAL other persons were indicted with the applicant . CARDINAL victims and QUANTITY witnesses were identified . On DATE the ORG committed the applicant for trial in that case .","On DATE the ORG extended the applicant \u2019s detention on remand until DATE on the same grounds , in the presence of his lawyer . The applicant appealed , requesting his release on bail . He claimed that his detention was unjustified since he could live with his family . On DATE ORG dismissed the applicant \u2019s appeal against the extension order . The applicant \u2019s lawyer was present at the hearing .","On DATE the ORG extended the term of the applicant \u2019s detention on remand until DATE , the applicant \u2019s defence counsel being present . The court referred to the strength of the evidence in the case file and the fear that the applicant might commit new crimes and obstruct the investigation by influencing the witnesses .","The applicant \u2019s appeal against the above order was dismissed - in the presence of the applicant \u2019s lawyer - by ORG on DATE . The court took into account the fact that the applicant had been detained on remand for a considerable period of time , but noted that this was justified by the complexity and volume of the case ( numerous charges against CARDINAL co - accused and a case file in CARDINAL volumes ) . ORG did not find any indication of procrastination in the proceedings . It noted that the examination of the case had been delayed due to objective circumstances . In particular , several hearings had been adjourned due to the failure of the witnesses or defence lawyers to appear before the court . The co - defendants had requested the adjournment of the trial on several occasions . The court finally observed that the applicant had submitted no serious reason that would prompt it to vary the remand measure .","On DATE the CARDINAL cases against the applicant were joined , and the prosecution presented a new set of charges . These included creating a criminal organisation , the illegal acquisition of explosives , extortion , the destruction of property in dangerous ways , causing serious bodily harm and the attempted murder of several people . These charges covered CARDINAL episodes which took place at different times .","On DATE the ORG extended the term of the applicant \u2019s remand in custody until DATE on the same grounds as before . ORG also noted the fact of the applicant having denied his guilt amongst the reasons justifying the fear of his absconding , obstructing the investigation and committing fresh crimes . The applicant \u2019s lawyer was present at the hearing .","On DATE ORG dismissed the applicant \u2019s appeal against the decision , his lawyer being present . While ORG acknowledged that the length of the applicant \u2019s detention on remand had been somewhat prolonged , it considered the length to be justified in view of the complexity of the case , the gravity and number of charges against the applicant , and the strength of the evidence in the case file . ORG noted that the investigation and trial had been adjourned a number of times for the purpose of satisfying various procedural requests of the defendants and their lawyers to investigate or re - evaluate evidence . In addition , witnesses , complainants and the defendants\u2019 lawyers had failed to attend certain court hearings . At the same time , the appellate court eliminated from the reasoning of ORG decision of DATE the reference to the applicant denying his guilt as an element justifying his remand in custody . In this connection the ORG emphasised that taking account of such an element could unlawfully prejudge the assessment by a trial judge of the merits of the charges against the applicant . ORG underlined that the reasons for detention must pertain solely to the need to ensure the attendance of a person at trial , and that remand in custody could not be authorised on the ground of any premature assessment of the evidence against the defendant or his plea in regard to the charges .","ORG further observed that the applicant had submitted no valid reasons to prompt varying his remand , all his requests for release being motivated exclusively by the alleged lack of evidence , and there being no element in the applicant \u2019s appeals to allay the fear that he might abscond , obstruct the investigation or commit fresh crimes . ORG reiterated in this respect that it was not its function to rule on the merits of the charges against the applicant when deciding the question of his remand . The appellate court concluded that the likelihood of the applicant absconding , obstructing the investigation or committing fresh crimes persisted regardless of the relatively lengthy period of his remand in custody .","On DATE the ORG extended the term of the applicant \u2019s remand in custody until DATE , again for fear of his absconding , obstructing the investigation and committing new crimes . The applicant \u2019s lawyer was present at the hearing .","On DATE the ORG convicted the applicant on CARDINAL counts , including attempted murder , causing grievous bodily harm , involvement in a criminal association , the destruction of property and theft . He was acquitted on CARDINAL other counts . The applicant was sentenced to CARDINAL years\u2019 imprisonment , including the time already spent in detention on remand . He was also fined in the amount of LTL CARDINAL ( approximately EUR CARDINAL ) , and confiscation of his property was ordered . The judgment was CARDINAL pages long , and CARDINAL other persons were convicted with the applicant . The court heard CARDINAL victims and QUANTITY witnesses .","In response to the applicant \u2019s complaint about the length of the proceedings , the court noted that , while they were somewhat protracted , the essence of the applicant \u2019s right to be tried within a reasonable time was not breached . ORG observed that the length of the proceedings had been largely determined by the conduct of the co - accused and their lawyers . In particular , CARDINAL hearings had to be adjourned due to the failure of defence lawyers ( including the applicant \u2019s representative ) to appear before the court , or their inability to take part in the proceedings due to illness . CARDINAL more hearings had been adjourned because of the GPE illness , the change of lawyers , or the refusal of the defendants to participate in the trial .","The applicant appealed , complaining that the case against him had been fabricated , that the charges had been imprecise and had been changed a number of times , that he had not been given access to the case file , that his defence rights had been breached , that the trial court had refused to call certain witnesses , that the judges had been biased , and that certain other irregularities had rendered the trial unfair . The applicant also complained about the length of the proceedings .","On DATE ORG amended the judgment , acquitting the applicant on a number of counts , including attempted murder , involvement in a criminal association and theft , on the grounds that the evidence supporting his guilt was contradictory . The prosecution for false reporting of a crime was discontinued as time - barred . The applicant \u2019s conviction for causing grievous bodily harm , extortion and destruction of property was upheld . The sentence was accordingly reduced to DATE imprisonment , including the period that the applicant had already spent in custody ( as of DATE ) . The court also ordered confiscation of the applicant \u2019s property in the amount of LTL CARDINAL ( approximately ORG CARDINAL ) .","While ORG acknowledged that some delays in the proceedings had been imputable to the authorities - namely , the delays which had occurred because of the changes in the composition of the trial court - it considered that the applicant \u2019s right to \u201c trial within a reasonable time \u201d was not breached . Nor did it find any other irregularities which could have rendered the proceedings \u201c unfair \u201d as alleged by the applicant .","On DATE the applicant was released on licence .","The applicant \u2019s cassation appeal was dismissed by ORG on DATE . ORG found no indication of unfairness in the proceedings or a breach of the applicant \u2019s procedural rights .","On DATE the applicant brought before ORG an action against ORG , claiming pecuniary and non - pecuniary damages for his being infected with Hepatitis C during his stay in the remand prison . On DATE the court disallowed his action for want of jurisdiction . The court observed that the applicant should have brought the claim before ORG , pursuant to the relevant procedural provisions .","On DATE ORG rejected the applicant \u2019s appeal .","On DATE the applicant brought an action before ORG , claiming pecuniary and non - pecuniary damages from ORG in relation to his Hepatitis C infection . On DATE the court disallowed the action by reason of the applicant \u2019s failure to comply with the relevant procedural requirements , namely , to state his factual and legal claims in a clear manner . The court gave the applicant time until DATE to amend the action . On DATE the applicant submitted a fresh action . However , it was disallowed by ORG on DATE on the same grounds . On DATE ORG dismissed the applicant \u2019s appeal against the decision of DATE .","The prison doctors confirmed that the applicant was infected with Hepatitis C and prescribed appropriate treatment . The applicant \u2019s condition was further monitored throughout DATE .","The provisions of LAW ( ORG proceso kodeksas ) , in force until DATE , provided as follows :","\u201c Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ...","The grounds for the detention on remand shall be specified . The grounds ... shall be the reasonable suspicion that the accused will :","( CARDINAL ) abscond from the investigation and trial ;","( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;","( CARDINAL ) commit new offences ... whilst suspected of having committed crimes provided in ORG ... CARDINAL [ aggravated murder ] , CARDINAL [ serious bodily harm ] .... CARDINAL [ founding a criminal organisation ] , ... CARDINAL [ theft ] , CARDINAL [ extortion ] , CARDINAL \u00a7 CARDINAL [ aggravated destruction of property ] ... of LAW ... .","Where there is a reasonable fear that the accused will abscond from the investigation and trial , detention on remand may be ordered taking into account his family status , permanent place of residence , employment relations , health , criminal record , relations abroad and other circumstances . ... \u201d .","\u201c ... [ T]he arrested person shall be brought before a judge within not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person shall take part in the inquiry [ unless the judge decides otherwise ] . ... After having questioned the arrested person , the judge may maintain the arrest order by fixing the term of detention , or may vary or revoke the remand measure . ...","After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . ... \u201d","\u201c Detention on remand can not last longer than DATE . A specific term of remand shall be fixed by a judge adopting the remand order ; this term can be extended by the same judge or another judge of the same district court , but only for a period not exceeding DATE .","In view of the particular complexity or size of a case , a judge of a regional court may extend the maximum term specified in the first paragraph of this LAW for a period not exceeding DATE . The extension may be repeated , but the total length of the term at the stage of the pre - trial investigation may not exceed DATE ...","For the purpose of extending the term of detention on remand at the stage of the pre - trial investigation , ... a judge must convene a hearing to which defence counsel and the prosecutor and , if necessary , the detained person shall be called ... . \u201d","[ Once the case is transferred to a court ] , a court of first or appellate instance shall order detention on remand or extend its term upon the request of a prosecutor or on its own motion for a period not exceeding DATE . The extension may be repeated DATE giving reasons \u2013 in view of the particular complexity , size of a case or other objective circumstances . The question of remand shall be resolved at a directions hearing or trial , or at a hearing specially convened for these purposes . The detainee , his defence lawyer , and a prosecutor must be summoned , and their presence before the court is obligatory . ...","If the court decides to remit the case for additional investigation , the maximum length of detention on remand may be extended for a period not exceeding DATE . In such cases , the question of remand shall be resolved by the court , and the case shall be remitted for further investigation . ... \u201d","\u201c A person remanded in custody or his defence council shall have the right during the pre - trial investigation or trial to lodge [ with an appellate court ] an appeal against the detention on remand or the extension of its term ... . A judge or the appellate court must examine the appeal within DATE from its receipt . With a view to examining the appeal , a hearing may be convened , to which the arrested person and his counsel or counsel alone shall be summoned . The presence of a prosecutor is obligatory at such a hearing .","The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal ... .","A further appeal shall be determined when examining the extension of the term of the detention on remand . \u201d","Other relevant provisions of LAW : LAW ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to \u201c submit requests \u201d and to \u201c appeal against acts and decisions of an interrogator , investigator , prosecutor and court . \u201d","\u201c A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ... ( CARDINAL ) whether the remand measure has been selected appropriately . \u201d","\u201c After having decided , that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ... ( CARDINAL ) of the remand measure in respect of the accused ... \u201d","\u201c [ During the trial , the defendant ] has the right to ... CARDINAL ) submit requests ; ... ( CARDINAL ) appeal against the judgment and decisions of a court . \u201d","\u201c In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . \u201d","\u201c CARDINAL . Damage caused by the unlawful acts of public institutions shall be compensated by the ORG from the budget , irrespective of the fault of an actual civil servant ...","For the purposes of this Article , the term \u201c action \u201d shall be taken to mean any action ( active action or failure to act ) of a public institution or its employees , which directly affects the rights , liberties or interests of persons ... .","The civil liability of the ORG ... shall arise if employees of public institutions fail to act in accordance with the law . \u201d","Article CARDINAL of the Civil Code provides that , in cases where the ORG is liable to cover the damage , it shall be represented by the ORG or an institution authorised by the Government ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84970","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2008,"docname":"CASE OF SVETOSLAV DIMITROV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych","text":["In a judgment of CARDINAL DATE ORG found the applicant guilty of theft and sentenced him to DATE imprisonment , suspended for DATE . No appeal was lodged and the judgment became final .","In a judgment of CARDINAL DATE ORG found the applicant guilty of theft and sentenced him to DATE imprisonment . As the conviction concerned an offence committed during the DATE operational period of the applicant 's sentence in case no . CARDINAL\/CARDINAL , the court also ordered the applicant to serve the suspended sentence of DATE imprisonment . No appeal was lodged and the judgment became final .","In a judgment of CARDINAL DATE ORG found the applicant guilty of theft . Combining the applicant 's sentence for this offence with his sentence of DATE imprisonment in case no . CARDINAL , the court sentenced him to a total of DATE and DATE imprisonment for both offences .","The court also ruled as follows :","\u201c On the basis of LAW of LAW [ the court ] deducts [ from the sentence to be served ] the period , during which [ the applicant ] was detained , calculated from DATE to CARDINAL DATE \u201d .","No appeal was lodged by either the applicant or the public prosecutor 's office and the judgment became final .","On DATE the applicant was arrested and remanded in custody in connection with case no . CARDINAL .","On an unspecified date towards DATE the applicant appealed against his continued remand in custody in that case .","A report from FAC dated DATE , which detailed the different periods of the applicant 's deprivation of liberty up to that point , was presented to ORG . The said periods were indicated to have been the following :","In a decision of CARDINAL DATE in case no . CARDINAL ORG revoked the order for the applicant 's continued remand in custody in that case and granted him bail . Release was made conditional on the applicant providing a recognizance and subject to there being no other grounds for his continued deprivation of liberty .","The applicant deposited the monetary guarantee on DATE and was released on DATE .","The applicant obtained a certificate from ORG dated DATE , which indicated that DATE and DATE he had accumulated the equivalent of DATE , DATE and DATE of time served , which included days he had worked towards reducing his sentences . The different periods of the applicant 's deprivation of liberty were noted to have been the following :","In a letter of DATE the GPE district public prosecutor 's office informed LOC police station and FAC that the applicant had to be recalled to prison to serve the outstanding part of his sentence in case no . CARDINAL . The reasoning of the district public prosecutor 's office was that the period during which the applicant had been serving his sentence of imprisonment in case no . CARDINAL\/CARDINAL could not count as a remand in custody in case no . CARDINAL .","On DATE the applicant was detained under an order issued by the district public prosecutor 's office to serve the outstanding part of his sentence in case no . CARDINAL .","On an unspecified date the applicant appealed to the GPE regional public prosecutor 's office against the decision of the district public prosecutor 's office . He argued that there was no outstanding prison term for him to serve as a result of the time he had spent remanded in custody in case no . CARDINAL combined with his sentence in case no . CARDINAL\/CARDINAL , which had both expressly been deducted by the trial court from the time to be effectively served .","NORP In a letter of CARDINAL DATE , the regional public prosecutor 's office dismissed the applicant 's appeal , stating , inter alia :","\u201c There is a sentence in criminal case no . CARDINAL\/CARDINAL ... , which was not combined with the sentence in criminal case no . CARDINAL . \u201d","The applicant appealed further .","In a decision of CARDINAL DATE ORG dismissed the applicant 's appeal . In its reasoning , it stated :","\u201c Correctly ... the prosecutor from the GPE district public prosecutor 's office took into account the period of the remand in custody of the [ applicant ] in case no . CARDINAL ... [ as being ] only from DATE to CARDINAL DATE , because subsequently he had started to serve a sentence of ' imprisonment ' . \u201d","In the meantime , on an unspecified date the applicant requested ORG to interpret , under LAW ( CARDINAL ) of LAW of DATE ( \u201c ORG \u201d ) , its judgment of DATE in case no . CARDINAL . He argued , inter alia , that he had been remanded in custody during the whole period DATE and DATE . He further maintained that this period of DATE , DATE and DATE plus the sentence of DATE imprisonment in case no . CARDINAL , which the applicant had already served , meant that he had effectively served the whole sentence of DATE and DATE imprisonment in case no . CARDINAL . The public prosecutor 's office meanwhile , apparently relying on a report prepared by FAC that the applicant 's remand in custody in case no . CARDINAL had been suspended on DATE , considered , inter alia , that the applicant still had to serve DATE of the sentence imposed by the court in case no . CARDINAL .","A hearing was held in the presence of all the parties on DATE . In a decision of DATE ORG dismissed the applicant 's request for interpretation of the judgment of DATE as it considered it to be clear . It found , inter alia , that its judgment quite unequivocally indicated that the whole period of the applicant 's remand in custody DATE and DATE should be deducted from his sentence of DATE and DATE imprisonment . In this respect it stated the following :","\u201c Accordingly , the will of the court is to deduct THE WHOLE OF THE ABOVE STATED PERIOD [ emphasis added by ORG ] , i.e. the period during which the measure for securing the [ applicant 's ] appearance before the court in the present case was a ' remand in custody ' , and not [ just ] a part thereof . \u201d","ORG also found that it was not competent to rule on the lawfulness of the decision of the public prosecutor 's office to seek execution of the part of the sentence it claimed was still outstanding .","The applicant was released on DATE after serving the remaining part of the sentence which the public prosecutor 's office had alleged was outstanding in case no . CARDINAL .","On DATE the applicant brought an action under the ORG and ORG DATE ( the \u201c ORG \u201d , which was renamed in DATE ) against the public prosecutor 's office and ORG .","He contended that he had been unlawfully deprived of his liberty since CARDINAL DATE because he had had no outstanding prison term to serve . He sought compensation for the non - pecuniary damage he had allegedly suffered as a result .","In a judgment of DATE , ORG established , inter alia , the following :","\u201c ... the [ applicant ] was remanded in custody in case no . CARDINAL from DATE to CARDINAL DATE . From DATE to DATE [ he ] served his sentence in case no . CARDINAL\/CARDINAL ... This sentence can not , by virtue of ORG CARDINAL of LAW , be combined [ with the other sentences ] and it was served separately . From DATE to CARDINAL DATE the [ applicant ] served his sentence in case no . CARDINAL\/CARDINAL . This sentence was combined with the sentence in case no . CARDINAL and therefore under LAW of LAW the [ trial ] court when delivering its judgment in case no . CARDINAL\/CARDINAL should have deducted the whole period of the sentence [ which had been ] served . It should [ also ] have deducted the whole period of the remand in custody from DATE to CARDINAL DATE on the basis of LAW of LAW . These CARDINAL periods amount to DATE , DATE and DATE . When the [ trial ] court wrote in its judgment that it was deducting the time during which [ the applicant ] had been detained , calculated from DATE to CARDINAL DATE , it in practice wrongly included the time during which he had been serving his sentence [ in case no . CARDINAL\/CARDINAL ] DATE from DATE to DATE . [ Accordingly , ] from the sentence of DATE [ the trial court ] deducted DATE , being the period DATE and DATE and it [ thereby ] transpired that the [ applicant ] had no time left to serve . The [ trial ] court made this mistake in spite [ of the fact that ] the case file contained information from FAC [ detailing ] the periods served by the [ applicant ] . In its decision [ of CARDINAL DATE ] dismissing the request to interpret its judgment , the [ trial ] court stated that its intention had been to deduct the whole period from DATE to CARDINAL DATE , i.e. the period during which the [ applicant ] was remanded in custody and not [ just ] a part thereof . This shows that the [ trial ] court was misguided [ in thinking ] that [ the applicant was remanded in custody in case no . CARDINAL throughout ] this entire period . Thus , with this judgment , DATE of the [ applicant 's ] sentence was pardoned , because DATE should have been deducted . In spite of this , the public prosecutor 's office did not appeal against the judgment and it became final ... After [ the judgment ] became final , it became binding on the public prosecutor 's office under LAW of the [ ORG ] which should have implemented it instead of attempting to correct the [ existing ] mistake by interpreting the intention of the [ trial ] court . In the period DATE and DATE , including from CARDINAL DATE to DATE , the date the present action was brought , the [ applicant ] unlawfully served a sentence of imprisonment , which if the mistake had not been made he [ would ] have served lawfully . \u201d","In spite of the above conclusion , ORG found that the applicant had failed to prove conclusively that he had suffered any nonpecuniary damage as a result of having been deprived of his liberty DATE and DATE . It therefore dismissed his action and ordered him to pay the resulting court fees . The applicant appealed against that judgment on an unspecified date .","In a judgment of DATE , ORG dismissed the applicant 's appeal and upheld the lower court 's findings . The reasons for its decision were , inter alia , the following :","\u201c Irrespective of the wrongful deduction of the time during which the [ applicant ] was serving his sentence ... in case no . CARDINAL\/CARDINAL , when sentencing the applicant to DATE and DATE imprisonment the [ trial ] court deducted DATE , DATE and DATE . This was the period DATE and DATE . The remaining [ period ] was DATE and DATE , which the applicant had to serve in view of the delivered final judgment ... in case no . CARDINAL of ORG . \u201d","The applicant filed a cassation appeal on an unspecified date .","In a final judgment of DATE ORG dismissed the applicant 's appeal and upheld the lower courts ' findings . In its reasoning , it indicated , inter alia , the following :","\u201c In the reasons [ for its decision of DATE , ORG ] stated that the intention of the [ trial ] court had been to deduct from the so determined combined sentence the period during which the [ applicant ] was remanded in custody . With this clarification it became clearer what the intention of the [ trial ] court had been . The GPE public prosecutor 's office made a justified assessment that the period stated in the judgment to be deducted , namely from DATE to CARDINAL DATE , included a period of DATE when the [ applicant ] served a sentence of ' deprivation of liberty ' under the judgment in case no . CARDINAL\/CARDINAL ... , which sentence was not combined with [ the sentence ] in case no . CARDINAL ... , and therefore was to be served separately . After deducting the period during which the [ applicant ] had served this first sentence the public prosecutor 's office rightly established that not all the sentence in case no . CARDINAL\/CARDINAL ... had been served and the [ applicant ] was recalled to prison on DATE to serve the remaining part of the sentence . There is no indication that he was detained in prison for a period longer than [ required ] for serving the sentence imposed . Accordingly , the contention that he suffered damage as a result is unfounded . The incorrect indication in the judgment of the period of [ remand in custody ] to be deducted does not change the stated intention [ of the trial court ] in respect of the length of the sentence of ' imprisonment ' . \u201d","The Code of Criminal Procedure ( DATE ) did not contain express provisions establishing a procedure to be followed in cases where there was a dispute as to whether a person had effectively served a prison sentence or not .","Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the ORG provided that the court which had imposed the sentence would rule on all difficulties or uncertainties relating to the interpretation of its judgment . That did not include , however , issues concerning the execution of sentences and , in particular , the lawfulness of a continuing detention .","In general , the authority responsible for supervising the lawfulness of the execution of sentences was the competent public prosecutor ( Article CARDINAL \u00a7 CARDINAL of the ORG , section CARDINAL of LAW DATE and section CARDINAL(CARDINAL ) of LAW ) . In particular , the public prosecutor was under a duty to order the release of every imprisoned person whom he or she found to have been unlawfully deprived of his or her liberty ( section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE ) . An appeal to a higher ranking public prosecutor 's office lay against the decisions of a public prosecutor .","The Code of Criminal Procedure ( DATE ) was replaced in DATE by a new code of the same name , while LAW DATE was replaced by a new act of the same name in DATE .","Prisoners may work during their time in prison , whereby DATE of employment are counted as them having served DATE of their sentences of imprisonment ( sections CARDINAL and CARDINAL of the Execution of Sentences Act ) .","NORP The relevant parts of LAW ORG provide :","\u201c The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the public prosecution , the courts ... for :","NORP unlawful detention ... , if [ the detention order ] has been set aside for lack of lawful grounds ;","...","execution of an imposed sentence in excess of the set term or amount . \u201d","Compensation awarded under the LAW comprises all pecuniary and non - pecuniary damage which is the direct and proximate result of the illegal act or omission ( section CARDINAL ) . The aggrieved person must lodge an \u201c action ... against the [ entity ] ... whose illegal orders , acts or omissions have caused the alleged damage \u201d ( section CARDINAL ) . Compensation for damage caused from cases coming within TIME and CARDINAL of the LAW can only be sought under LAW and not under the general rules of tort ( section CARDINAL ( CARDINAL ) ) .","The liability of the investigating and prosecuting authorities may arise only in the exhaustively listed instances set forth in section CARDINAL(CARDINAL ) of the LAW and not under the general rules of tort ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 CARDINAL \u0433. , PERSON and ORG CARDINAL \u043e\u0442 CARDINAL \u0433. \u043f\u043e \u0442. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG \u043d\u0430 \u0412\u041a\u0421 ) . No reported cases have been identified of successful claims being made for damage stemming from acts of the investigating or prosecuting authorities which fall outside the list in section CARDINAL .","The reported case - law under section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW is scant . In CARDINAL judgments ORG held that ORG liability arose where a detainee was remanded in custody or imprisoned for a period exceeding the final prison term subsequently imposed by the court of last instance ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , PERSON \u0433. \u043e. \u043d\u0430 \u0412\u0421 \u0438 \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , PERSON \u0433. \u043e. \u043d\u0430 ORG ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1","5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113636","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2012,"docname":"CASE OF RUSIN v. POLAND","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in PERSON .","The applicant is married with CARDINAL children . Prior to her application for an early - retirement pension she had been employed and paid social security contributions to the ORG .","On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called \u201c EWK \u201d pension .","Along with her application for a pension , the applicant submitted , among other documents concerning her daughter \u2019s health condition , a medical certificate issued by a specialist medical centre on DATE . The certificate stated that the child J. ( born in DATE ) suffered from a renal condition and scoliosis and that she was in need of her parent \u2019s constant care .","On DATE ORG ( \u201c the FAC \u201d ) issued a decision granting the applicant the right to an earlyretirement pension as of DATE in the net amount of MONEY ( ORG ) .","ORG initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision . On DATE the applicant resigned from her fulltime job in a private company where she had been working since DATE . Afterwards , payment of the pension was resumed .","On DATE ORG asked ORG doctor ( PERSON ) to inform it whether the applicant \u2019s daughter required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .","NORP On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant \u2019s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance .","The applicant appealed against the respective decisions divesting her of the right to an early - retirement pension . She submitted that she should receive the benefit because her child required constant care , as confirmed by the medical certificate attached to the applicant \u2019s original application for a pension . Moreover , the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights .","On DATE ORG ( PERSON ) dismissed the appeal . ORG concluded on the basis of the evidence that the applicant \u2019s child did not require her mother \u2019s permanent care since her health condition did not significantly impair her bodily functions . The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the DATE Ordinance as she did not satisfy the requirement of necessary permanent care .","The applicant further appealed against the first - instance judgment .","On DATE the ORG ( S\u0105d Apelacyjny ) dismissed the appeal .","On DATE ORG ( S\u0105d Najwy\u017cszy ) refused to entertain the cassation appeal lodged by the applicant .","Following the social security proceedings the applicant was not ordered to return her early - retirement benefits paid by ORG , despite the revocation of her right to an earlyretirement pension .","The applicant submitted that after the revocation of pension on DATE for DATE she had been unsuccessfully looking for job but had received no unemployment or other benefits from the ORG during that time .","DATE the applicant was offered a paid traineeship by the unemployment office in the amount of ORG CARDINAL per month . The applicant was afterwards employed from DATE to DATE .","The Government submitted that the applicant \u2019s husband and CARDINAL adult children were employed . They stated that in DATE the applicant earned LAW . Moreover , the applicant and her husband owned a small farm .","In addition , the Government submitted information as regards the various types of social benefits available in GPE . However , they did not specify which of those benefits , if any , were available in the applicant \u2019s situation .","Under the relevant laws currently in force , it appears that the applicant will qualify for a regular retirement pension in DATE .","CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( \u201c the Association \u201d ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .","Out of all applications lodged with the ORG , about twentyfour applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .","One hundred - and - CARDINAL applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In eightyone applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .","NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE GPE , no . CARDINAL , \u00a7 DATE , CARDINAL DATE .","NORP The social security scheme for farmers is regulated by ORG the DATE LAW ; ustawa o ubezpieczeniu spo\u0142ecznym rolnik\u00f3w ) .","The reopening of the proceedings concerning the earlyretirement pension is regulated in CARDINAL ( CARDINAL ) of LAW DATE on the system of social insurance ( Ustawa o systemie ubezpiecze\u0144 spo\u0142ecznych ) , which at the relevant time read as follows :","\u201c The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . \u201d","On DATE a new subparagraph CARDINAL ( CARDINAL ) a was added , which reads as follows :","\u201c Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . \u201d","A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a second - instance court . A party had to be represented by an advocate or a legal adviser .","Article CARDINAL of LAW as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :","\u201c The cassation appeal may be based on the following grounds :","CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;","CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . \u201d","Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG failed to find non - conformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was wellfounded ORG could also amend the impugned judgment and adjudicate on the merits .","On DATE the ORG made an application to ORG , asking for section CARDINAL \u00a7 CARDINAL of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpiecze\u0144 Spo\u0142ecznych ) ( \u201c the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an age - limit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .","On DATE ORG ( KCARDINAL\/CARDINAL ) declared the impugned section CARDINAL \u00a7 CARDINAL of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .","On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .","On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58483","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2000,"docname":"CASE OF MAJARIC v. SLOVENIA","importance":4,"conclusion":"Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - financial award","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["On DATE the applicant was charged with sexual assault of a minor and abduction of minors . He was remanded in custody . On DATE the applicant was released .","On DATE the applicant \u2019s trial started before ORG ( Okro\u017eno sodi\u0161\u010de \u2013 \u201c the ORG \u201d ) . On DATE the case was adjourned .","On DATE ORG ordered the redetention of the applicant .","On DATE a number of witnesses were heard and on DATE ORG again adjourned the applicant \u2019s trial due to the applicant \u2019s illness .","By decision of ORG dated DATE , the applicant was again released .","A hearing scheduled for DATE had to be adjourned sine die as the applicant was ill .","On DATE the applicant was accused of another sexual assault of a minor . An indictment was filed on DATE . The applicant entered a plea against the indictment which was rejected on DATE . On DATE ORG joined the CARDINAL sets of proceedings .","On DATE the public prosecutor requested further investigations on the ground that there was reasonable suspicion that the applicant had also criminally neglected and ill - treated a minor within the meaning of Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW .","On DATE a preliminary charge was filed in respect of the aforesaid acts . On DATE ORG decided to deal with all charges against the applicant in a single set of proceedings .","In the period from DATE to DATE ORG held several hearings .","On DATE ORG convicted the applicant of sexual offences on several counts . A combined prison sentence of DATE and DATE was imposed on the applicant . Both the applicant and the public prosecutor appealed .","On DATE the ORG ( PERSON sodi\u0161\u010de ) rejected the applicant \u2019s appeal and increased the sentence to CARDINAL GPE imprisonment .","On DATE the applicant lodged a plea of nullity ( zahteva za varstvo zakonitosti ) . ORG transmitted it to ORG sodi\u0161\u010de ) , together with the file , on DATE . ORG dismissed this complaint on CARDINAL DATE .","On DATE the applicant lodged a constitutional complaint against the ORG judgment of CARDINAL Februrary CARDINAL . It was dismissed by ORG ( GPE sodi\u0161\u010de ) on DATE .","On DATE the applicant filed a further constitutional complaint concerning ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) . He alleged , inter alia , a violation of LAW in the criminal proceedings against him .","On DATE ORG refused to send the case back to the lower courts for a new examination as it found no violation of the applicant \u2019s right to a fair hearing ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-97854","languageisocode":"ENG","respondent":"DEU","branch":"COMMITTEE","date":2010,"docname":"CASE OF WETJEN v. GERMANY","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13","judges":"Karel Jungwiert;Mark Villiger;Renate Jaeger","text":["The applicant was born in DATE and lives in Hildesheim .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE ORG received CARDINAL anonymous reports . The applicant , who acted as a court - appointed liquidator , a judge and CARDINAL other liquidators were accused of collaborating to the detriment of other liquidators and creditors .","On DATE ORG opened preliminary investigations against the applicant and CARDINAL other persons . The applicant was suspected of having granted an undue benefit ( GPE ) and of embezzlement ( PERSON ) . The investigations concerned , inter alia , the judge 's alleged free stay at the applicant 's ski lodge and benefits in connection with the purchase of CARDINAL cars and CARDINAL computers . By a letter dated DATE the applicant was informed of the investigations .","In DATE , ORG ( and also GPE ) questioned numerous witnesses and public officials of the court DATE partly , moreover , with the help of GPE Interpol DATE , and searched , inter alia , the applicant 's business LOC , seized documents and computers and requested information from ORG . The applicant and his co - defendants , on their part , including after the submission of an interim report by ORG in DATE , made rather extensive submissions and repeatedly requested access to the files . ORG also decided on an appeal against the search of LOC ; proceedings against CARDINAL of the co - defendants were stayed .","On DATE the applicant requested the public prosecutor not to close the investigations and announced further submissions , which he submitted on DATE . In the meantime , further information on insolvency proceedings in respect of the applicant over DATE had been obtained .","On DATE ORG brought charges against the applicant , the judge and CARDINAL more lawyers . The applicant was accused of having granted undue benefits to a public official , namely , the accused judge .","On DATE CARDINAL judges of ORG indicated possible grounds for bias .","NORP In DATE , and also CARDINAL times in DATE , the applicant requested an extension of the time - limit set . CARDINAL of his co - defendants changed their legal representatives ; further access to the files was also granted .","NORP In DATE ORG challenged one of the judges on the grounds of bias . In DATE the Magdeburg ORG rejected this request . In DATE ORG quashed that decision and found that the judge was biased . In DATE CARDINAL more judges indicated that there were grounds for bias on their part . In DATE ORG decided that CARDINAL of the judges was to be excluded on the grounds of bias .","In DATE it decided to obtain an expert opinion and heard other witnesses . On DATE it commissioned the expert . In DATE it further amended its decision . On DATE the expert submitted his report .","DATE a number of memorandums , a report on the state of the investigations and further submissions by the accused were obtained .","On DATE the ORG decided to open the trial against the applicant as regards one offence ; it refused to open a trial against the applicant as regards the CARDINAL other offences .","On DATE ORG lodged an appeal against that decision in the part refusing to open proceedings . In DATE , when the reasoning was complete and the accused had made further submissions , the files were transferred to ORG .","On DATE that court considered that a trial should also be opened as regards CARDINAL of the other offences . It also decided that the main hearing was to be held before ORG .","In DATE and DATE the applicant appointed CARDINAL new legal counsel \u2013 both were also granted access to the files . PERSON , the parties agreed that hearings should take place as of DATE .","NORP In DATE ORG laid new charges with ORG against the applicant and the judge .","DATE and DATE TIME hearings took place . CARDINAL witnesses and also experts were heard . On DATE ORG acquitted CARDINAL of the lawyers .","On DATE it convicted the judge of tax evasion and acquitted the applicant and the co - defendants of all other charges . The written judgment , comprising CARDINAL pages , was sent to the parties in DATE .","On DATE ORG appealed . In DATE , following submissions by the accused , the files were transferred to ORG .","On DATE ORG quashed the judgment in the part acquitting the applicant and the others of the offences of granting an undue benefit and of taking a bribe ( PERSON ) and remitted the case to ORG .","NORP In DATE ORG received the files . In DATE the court and the parties agreed upon the dates of the hearings . In DATE the witnesses to be heard and the experts to be involved were designated .","DATE and DATE altogether CARDINAL hearings took place CARDINAL of them in DATE and CARDINAL witnesses were heard . Initially , the applicant had requested the court not to hold CARDINAL hearing per week .","On DATE ORG convicted the applicant of CARDINAL counts of granting undue benefit and the judge of CARDINAL counts of taking a bribe . Shortly afterwards , the applicant 's legal counsel ceased taking instructions from the applicant ; his newly appointed lawyer then requested access to the files . On DATE ORG submitted the written judgment .","On DATE the applicant , as CARDINAL of his co - defendants had already done , lodged an appeal on points of law ( comprising CARDINAL pages ) ; he also appointed another legal counsel ; proceedings against CARDINAL of his co - defendants were stayed .","In DATE ORG decided not to file further submissions and transferred the files to ORG . In DATE the applicant filed further observations ; in DATE he again requested access to the files . On DATE , following a remittal of the files on account of a reputedly missing approval , ORG made his submissions .","On DATE ORG quashed the judgment and remitted the case to ORG . It found that it could not be established that the applicant and his co - defendant had intentionally collaborated . On DATE the court delivered the written judgment .","In DATE the ORG contacted the parties ' legal representatives in order to arrange the hearings . In DATE the case was assigned to ORG ; in DATE ORG informed the court thereof . In DATE , at the applicant 's renewed request , ORG decided that CARDINAL judges and CARDINAL lay judges should decide upon the case .","From DATE to DATE CARDINAL hearings took place . On DATE one of the lay judges died . On DATE the ORG therefore cancelled all further hearings .","On DATE , after having been granted access to the files , the applicant requested that the proceedings be stayed on account of their excessive length pursuant to section CARDINAL ( a ) of LAW , which presupposes a procedural impediment . On DATE , following submissions by all the parties , ORG rejected this request as unfounded .","By a letter dated DATE the applicant lodged a constitutional complaint against the refusal . DATE , ORG decided that another chamber should decide on the case .","On DATE ORG refused to admit the case for adjudication as being inadmissible on the ground that the decision under LAW ( a ) of LAW was an interlocutory decision which could not be challenged .","On DATE , following further submissions , ORG rejected the applicant 's objection ( PERSON ) against the refusal to stay the proceedings .","In DATE the applicant had twice requested the court to schedule a hearing DATE it turned out that hearings could only be scheduled as of CARDINAL DATE . Thereafter , the applicant and his co - defendant were granted access to the files . The applicant 's request to appoint a supplementary judge was rejected on DATE . A further appeal was to no avail .","Between DATE and DATE CARDINAL hearings took place . CARDINAL witnesses were heard and expert reports were obtained .","On DATE ORG acquitted the applicant and the co - defendants of both charges . It also found that he was entitled to compensation on the merits on account of the searches and the seizures and also ordered that the ORG bear the costs of the proceedings and the applicant 's necessary expenses .","NORP On DATE the judgment became final , ORG having withdrawn an appeal on points of law .","On DATE the applicant requested ORG to cover the costs of his legal representation in the amount of ORG CARDINAL ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100485","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF ISKANDAROV v. RUSSIA","importance":2,"conclusion":"Violation of Art. 3;Violation of Art. 5-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","In DATE a civil war erupted in NORP when ethnic groups under - represented in the ruling elite rose up against the national government of President PERSON . Politically , the discontented groups were represented by liberal democratic reformists and NORP , who fought together and later organised themselves under the banner of ORG ( \u201c UTO \u201d ) . By DATE CARDINAL people had been killed .","During the civil war in GPE , the applicant was one of the leaders of the ORG .","On DATE a peace agreement was signed by President PERSON and the ORG leader . The applicant was appointed as the head of ORG and Civic Defence of NORP . While in office , he was awarded the rank of ORG .","In DATE the President of NORP appointed the applicant as the director of the unitary enterprise GPE .","On DATE the applicant was elected chairman of ORG .","On DATE the applicant was appointed as the director of the unitary enterprise GPE .","At some point the applicant openly criticised the President of NORP .","On DATE the applicant moved to GPE .","On DATE ORG charged the applicant in his absence with terrorism , gangsterism , unlawful possession of firearms and embezzlement .","On DATE the NORP authorities chose placement in custody as a preventive measure to be imposed on the applicant .","On DATE the applicant was put on an international \u201c wanted \u201d list .","On DATE ORG received a request for the applicant 's extradition from ORG .","On DATE the NORP authorities arrested the applicant on the basis of the request for his extradition .","On an unspecified date the applicant was placed in remand prison no . GPE in GPE .","On DATE the ORG of GPE authorised the applicant 's detention pending extradition .","On DATE the applicant appealed against the firstinstance decision . On an unspecified date ORG dismissed the appeal .","On DATE and DATE the applicant requested ORG not to extradite him , arguing that the request for his extradition had been filed for purely political reasons .","In DATE the applicant requested ORG of ORG of the ORG to grant him political asylum .","On DATE ORG dismissed the extradition request by the NORP authorities for the reason that the applicant had filed an asylum application .","On DATE the prosecutor 's office of the Babushkinskiy District of GPE ordered the applicant 's release from custody .","Upon his release on DATE the applicant stayed at his friend 's flat in the town of ORG , in LOC , awaiting examination of his asylum application .","In TIME of DATE the applicant and his friend , PERSON , were walking a dog . At some point the applicant saw CARDINAL persons wearing uniforms of ORG ( \u00ab \u0413\u0418\u0411\u0414\u0414 \u00bb , \u201c LOC ) . He assumed that those men intended to arrest him and told his friend to go home . Then the applicant noticed that the area had been surrounded by CARDINAL or QUANTITY men with NORP features wearing civilian clothes .","Without identifying themselves or giving any explanations , the CARDINAL men in LOC uniforms , assisted by several men in civilian clothes , handcuffed the applicant . CARDINAL of the men hit the applicant on the head and placed him in a car ; it drove off . After QUANTITY the car stopped ; the men in the ORG uniforms took the applicant out and placed him in a minivan .","They drove for a while . Eventually the minivan stopped and the applicant was taken outside . The surroundings were unknown to him . The applicant was escorted to a sauna and detained there . The guards beat the applicant . He asked for a lawyer , but in vain .","On DATE the applicant was taken to a forest . The men who had apprehended him met a group of people and conversed with them there . Having listened to them talking , the applicant assumed that the newly arrived people were servicemen of the NORP law - enforcement agencies .","At some point the servicemen put a mask on the applicant 's face . They did not identify themselves , nor did they give any explanations of their actions . They spoke unaccented NORP .","Later they took the applicant with them and escorted him to an airport . The applicant 's identity papers were not checked . While boarding the plane , the applicant heard the servicemen talking to a woman who apparently knew them . During the flight the applicant , still blindfolded , heard no instructions or other information usually conveyed in a civil aircraft .","On TIME CARDINAL DATE the aircraft landed at FAC and the applicant was handed over to the NORP law - enforcement agencies .","On DATE the applicant was placed in the remand prison of ORG . He was kept in a cell measuring CARDINAL x QUANTITY . There was an iron bed with dirty bedding .","For DATE of his detention the applicant was registered under a false last name , \u201c Sobirov \u201d . During that period officers of the remand prison regularly beat the applicant . He had no food except for CARDINAL pieces of bread per day and some water . He was allowed to use the lavatory only once a day . The applicant was not permitted to go for a walk or to wash himself .","On DATE of the applicant 's detention , officers of ORG told him that he would be killed unless he confessed . The applicant made a self - incriminating statement under pressure . He was given some pills , allegedly of a psychotropic nature .","On DATE the NORP Prosecutor General gave a press conference and announced that the applicant had been arrested in NORP on DATE .","On DATE the applicant was allowed to see his lawyers for the first time since his arrest . He explained them that for DATE he had been kept incommunicado and had lived on bread and water . The lawyers ' visits took place in the presence of the prison officials . Unsupervised visits were not permitted .","On DATE ORG convicted the applicant and sentenced him to DATE imprisonment .","On DATE ORG of ORG upheld the judgment of DATE .","NORP On DATE the Presidium of ORG requested the President of GPE , ORG and ORG to clarify the circumstances of the applicant 's unlawful extradition .","On DATE the applicant 's relatives requested ORG to explain how the applicant had been transferred to NORP . No reply was given .","On CARDINAL DATE the applicant 's lawyers enquired of ORG whether any measures had been taken in relation to the letter of CARDINAL DATE .","On DATE the applicant 's lawyers complained to ORG that the applicant 's abduction and extradition had been unlawful .","On DATE the applicant 's lawyers complained to ORG of GPE about the inaction of ORG . The court left the complaint unexamined .","On DATE the applicant 's lawyers complained to ORG about the allegedly ineffective investigation into the circumstances of the applicant 's unlawful extradition .","On DATE the ORG town prosecutor 's office refused to institute criminal proceedings in relation to the applicant 's kidnapping .","On DATE the ORG town prosecutor 's office quashed the decision of DATE and instituted an investigation under LAW of LAW Criminal Code ( aggravated kidnapping ) .","On DATE the applicant 's representatives lodged a second complaint with ORG of GPE . The complaint was dismissed on DATE .","DATE . On DATE the applicant 's lawyer requested the ORG town prosecutor 's office to demand the NORP authorities to transfer the applicant to GPE for questioning . On DATE the request was dismissed . The applicant 's lawyers challenged the prosecutor 's decision before the prosecutor 's office of LOC , but to no avail .","The applicant himself requested the ORG town prosecutor 's office to question him as a victim in NORP territory .","On DATE the ORG town prosecutor 's office dismissed the applicant 's request . The applicant 's lawyers challenged the refusal before a court .","On DATE the ORG dismissed the complaint on the ground that the applicant had not been permitted to join the proceedings as a victim . That decision was quashed . On DATE ORG dismissed the complaint at final instance on the ground that the applicant 's rights had not been breached .","On DATE ORG dismissed at final instance the complaint about ORG inaction .","On DATE the ORG of GPE dismissed at first instance the applicant 's complaint about ORG Office 's inaction . On DATE ORG upheld the decision .","On DATE the applicant 's lawyers challenged in court the investigators ' decision . On DATE their complaint was dismissed at final instance by ORG .","NORP In DATE CARDINAL NORP lawyers filed a complaint with the ORG High Commissioner for Human Rights ( UNHCHR ) concerning alleged violations of the applicant 's rights in the course of the criminal proceedings against him in NORP .","On DATE ORG UNHCHR put questions on the applicant 's detention to ORG .","On DATE ORG , in reply to the request by ORG , submitted a seventeenpage document in NORP describing the charges against the applicant and the proceedings against him . The document read , in so far as relevant , as follows :","\u201c ... [ i]n accordance with LAW , PERSON was arrested by the NORP law - enforcement agencies in GPE in DATE .","In reply to ORG requests , ORG produced the necessary documents concerning PERSON 's extradition to the NORP authorities within the time - limits laid down by LAW , as well as comprehensive proof of ORG 's guilt in respect of the crimes he had been charged with . After that , ORG informed the NORP authorities that a favourable solution would be found to the question of PERSON 's extradition .","It is noteworthy that on DATE the NORP law - enforcement agencies released PERSON from custody prior to deciding on his extradition but did not officially notify ORG of the grounds and reasons for the release under LAW .","PERSON was officially extradited to the NORP authorities by the NORP lawenforcement agencies and on DATE he was placed in the remand prison of ORG . \u201d","On DATE ORG forwarded the letter from ORG to the applicant 's NORP counsel and notified her that , in order to consider the applicant 's case during its CARDINALth session , its ORG expected to receive her comments on it .","It appears that the proceedings before the UNHCHR concerning the alleged violations of the applicant 's rights in NORP are still pending .","On DATE ORG received a petition for the applicant 's extradition from ORG .","On DATE the applicant was arrested in GPE .","On DATE ORG received an official request for the applicant 's extradition , citing the charges of terrorism , gangsterism , unlawful possession of arms , embezzlement and unlawful hiring of bodyguards .","On DATE ORG refused to extradite the applicant on the basis of LAW owing to the fact that he had applied for asylum .","On DATE the applicant was released from custody .","On DATE the ORG town prosecutor 's office instituted criminal proceedings in relation to the applicant 's abduction under LAW CARDINAL LAW of LAW ( \u201c aggravated kidnapping \u201d ) . The case was assigned number DATE .","The investigation established that at TIME on DATE the applicant had been walking along a street in the vicinity of the house at CARDINAL FAC , GPE , and had presumably been kidnapped by unidentified persons .","Later it became known that the applicant had been arrested in GPE by the NORP authorities .","The investigators questioned PERSON and his son and daughter , as well as police officers who had been on duty on TIME DATE in the vicinity of FAC and the applicant 's son .","On DATE Mr L. stated that the applicant , a friend of his daughter , had been staying in their home since DATE . On DATE Mr L. had gone outside to walk his dog ; the applicant had accompanied him to have a cigarette . PERSON , a non - smoker , had walked in the opposite direction to the applicant . At some point he had stumbled upon CARDINAL men wearing police uniforms and talked to them for TIME . Then he had returned home ; the applicant was not there . PERSON and his daughter , PERSON , had searched for the applicant and checked with police stations but in vain . After a while PERSON had read on the Internet that the applicant had been arrested in GPE .","PERSON and PERSON son made identical depositions .","The investigators checked whether the applicant had been taken away by plane from FAC . No proof of this hypothesis was found .","On DATE the ORG prosecutor 's office granted the applicant victim status in criminal case no . DATE .","On DATE the ORG prosecutor 's office , pursuant to ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Minsk Convention , requested ORG to establish the applicant 's whereabouts and to question him about his abduction and transfer from GPE .","On DATE the NORP authorities requested ORG to question the applicant and to allow him to study the decision to grant him victim status . On DATE Mr Kh . , an investigator of ORG , replied that on several occasions he had visited the applicant in the remand prison of ORG in connection with criminal case no . DATE but that the applicant had refused to make any statements or to study the decision to grant him victim status .","DATE . The investigation did not establish that any officers of the NORP law - enforcement agencies had been involved in the applicant 's kidnapping .","On DATE the investigation was suspended for failure to identify those responsible .","Everyone has the right to liberty and security ( LAW ) . Arrest , placement in custody and custodial detention are permissible only on the basis of a court order . The term during which a person may be detained prior to obtaining such an order can not exceed TIME ( LAW ) .","Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .","Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :","\u201c ...","Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ...","An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...","NORP the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","ORG for Human Rights issued a Recommendation ( CommDH(CARDINAL)CARDINAL ) on DATE concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :","\u201c CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . \u201d","For other relevant documents , see the ORG 's judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINALV.","When performing actions requested under LAW , to which GPE and GPE are parties , a requested official body applies its country 's domestic laws ( LAW ) .","Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .","The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .","A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE from the date of placement in custody ( Article CARDINAL \u00a7 CARDINAL ) .","Amnesty International , in its document \u201c Tajikistan \u2013 Impunity ; Fear for Safety \u201d describing alleged ill - treatment of CARDINAL NORP residents and released on DATE , stated as follows :","\u201c ORG receives reports about torture and ill - treatment by police in NORP on a regular basis . Those targeted have included alleged NORP as well as suspects charged with ordinary crimes . Allegations persisted that in the large majority of cases no thorough and impartial investigations were conducted and the perpetrators enjoyed impunity . \u201d","ORG on Human Rights Practices : NORP , released on DATE , reads as follows :","\u201c The [ NORP ] Government 's human rights record remained poor ; although there were some improvements in a few areas , serious problems remained . ... Security forces tortured , beat , and abused detainees and other persons and were also responsible for threats , extortion , and abuse of civilians . Prison conditions remained harsh and life threatening . A few prisoners died of hunger .","Impunity and lengthy pre - trial detention remained problems . Authorities used torture to obtain confessions , which were routinely accepted as evidence in trials without qualification .","The law prohibits such practices ; however , there were reports that government security officials employed them .","Torture occurred during DATE , though to a lesser extent than in DATE . Security officials , particularly from ORG ( ORG ) , continued to use systematic beatings to extort confessions , torture , sexual abuse , and electric shock during interrogations .","Beatings and mistreatment were also common in pre - trial detention facilities , and the Government took minimal action against those responsible for the abuses","Prison conditions remained harsh and life threatening for CARDINAL incarcerated persons . Prisons were generally overcrowded , unsanitary , and disease - ridden . The spread of tuberculosis was a serious problem , and there were reports that a few prisoners died of hunger .","...","Arbitrary arrest and detention remained serious problems . The law , which is an amended holdover from the NORP era , allows for lengthy pre - trial detention , and there are few checks on the power of prosecutors and police to make arrests .","Impunity remained a serious problem , and officers who committed abuses were rarely prosecuted . The Government acknowledged that police and security forces were corrupt and that most citizens who were abused chose to remain silent rather than risk retaliation by authorities .","...","The LAW provides for an independent judiciary ; however , courts and judges were subject to political pressure from the executive branch and criminal networks , and corruption and inefficiency were problems .","There was little official information about criminal court procedures and the number of political prisoners ; however , credible international and local sources estimated that CARDINAL former opposition fighters of ORG remained in prison after the civil war despite CARDINAL general amnesties in DATE . Controversy over which crimes the amnesties covered delayed resolution of the cases . However , following a government review of the cases , most were determined to be appropriately jailed for grave crimes ; others were released .","In DATE , following a partially closed trial , a closed session of ORG of ORG sentenced PERSON , a deputy chair of the opposition IRP , to DATE in prison for organizing an armed group and illegally crossing the border . Both crimes were covered under the DATE post - war amnesties . While in pre - trial detention , he was allegedly abused and denied access to counsel ( see Section CARDINAL.c . ) . The ORG maintained that the trial and sentencing were politically motivated to discredit the party . \u201d","ORG DATE NORP , issued on DATE , reads as follows :","\u201c The human rights situation in NORP is fragile . Despite reforms on paper \u2013 including a new election law and a moratorium on capital punishment \u2013 the government continues to put pressure on political opposition , independent media , and independent religious groups . The political climate has deteriorated as President PERSON attempts to consolidate power in advance of DATE parliamentary and presidential elections . PERSON ( ORG of NORP ) , led by President PERSON , dominates political life . Under DATE 's power - sharing arrangement , opposition parties are guaranteed PERCENT of top government posts . In DATE , PERSON replaced senior government officials from other political parties with members of his own party , reducing the other parties ' share of top posts to PERCENT .","PERSON 's opponents are vulnerable to prosecution on politically - motivated charges . In DATE , ORG sentenced PERSON , deputy chairman of ORG ( ORG , ORG ) DATE which participates in the power - sharing government - to sixteen years in prison on charges of polygamy , organizing an armed criminal group during the civil war , and illegally crossing the border . CARDINAL other IRP members were given lengthy prison terms for alleged complicity in GPE 's armed group . GPE , who has maintained his innocence since his arrest in DATE , alleges he was beaten and tortured with electric shocks while awaiting trial . \u201d","The Ambassador of GPE to ORG of the ORG delivered on DATE a statement on the detention of PERSON in GPE , which reads as follows :","\u201c GPE wishes to express its concern regarding the case of PERSON , the Chairman of ORG , who was involuntarily returned to GPE from GPE on DATE , and who has been held in detention by GPE 's ORG since DATE .","We further note that Mr. PERSON has been denied regular and unobserved access to his legal counsel , and that his family has been unable to meet with him .","GPE calls on the NORP authorities to permit Mr. PERSON access to his legal counsel in accordance with NORP 's own laws and with international standards , and to pursue any court process in accordance with international law . Both local and international observers should be allowed to witness those proceedings .","Once again , [ GPE ] PERSON ] the Government of NORP to demonstrate its commitment to comply with OSCE principles and with international law . GPE stands ready to provide whatever assistance might be required in helping NORP to meet its obligations in that regard . \u201d","ORG DATE NORP , issued on DATE , reads as follows :","\u201c In DATE , NORP police arrested PERSON in GPE at the request of NORP authorities . The government had implicated PERSON a vociferous critic of President PERSON , presidential hopeful , and leader of ORG \u2013 in an attack on CARDINAL government offices in PERSON in DATE . NORP authorities released him on DATE , but he disappeared DATE and eventually turned up in custody in GPE . PERSON claimed that he had applied for refugee status after his initial release from NORP custody , but said that NORP police had kidnapped him off the street and transferred him to agents who flew him to NORP . On DATE , after a trial that lasted DATE , PERSON was found guilty on CARDINAL counts , including terrorism and illegal possession of weapons . He was sentenced to DATE in prison and fined QUANTITY ( approximately CARDINAL ) . \u201d","ORG on Human Rights Practices : NORP , released on DATE , reads as follows :","\u201c Beatings and mistreatment were also common in pre - trial detention facilities , and the government took minimal action against those responsible for the abuses ( see Section CARDINAL.d . ) . PERSON Shaykh ' and PERSON both stated police beat them and subjected them to electric shocks while they were in custody . ORG ( ICRC ) monitors were unable to investigate claims of torture against them and their associates and the government did not launch an official investigation .","...","PERSON , head of ORG and former chairman of GPE , was returned to the country in DATE after his DATE detention in GPE , under circumstances that appeared to be an extrajudicial rendition ; PERSON was charged with violating CARDINAL articles of the criminal code including : banditry , terrorism , illegal possession of weapons , having an unauthorized bodyguard , and embezzlement . At the request of ORG , NORP authorities had taken PERSON into custody on an international arrest warrant , but found insufficient evidence to extradite him . On DATE , the NORP general prosecutor turned down an extradition request and released PERSON . He was subsequently kidnapped by unknown forces and on DATE , the NORP prosecutor general announced PERSON was in pre - trial detention in GPE . PERSON was denied immediate access to his family and an attorney ( see section CARDINAL.e . ) . PERSON reported that he was tortured , injected with drugs , and electrocuted while in detention . He was sentenced to DATE in prison . He is appealing to ORG . No date was set for the appeal trial by DATE . \u201d","The Declaration by the Presidency of ORG on behalf of ORG on the case of PERSON in NORP , done in GPE on DATE ( CARDINAL ( Presse CARDINAL ) P CARDINAL ) , reads as follows :","\u201c The ORG has closely followed the legal proceedings against PERSON , leader of the opposition ORG , since his arrest in GPE in DATE .","The ORG has taken note of his conviction and sentence to DATE in prison on multiple charges by GPE 's ORG on DATE , and the rejection of his appeal by ORG on DATE .","The ORG is particularly concerned about the circumstances of PERSON transfer to and arrest in NORP in DATE , which remain unclear , and about the treatment PERSON received during his pre - trial detention . Concerns were also raised by PERSON defence team about some aspects of the court proceedings themselves , and about the fact that the recent appeal procedure was not open to the press . The ORG wishes to receive further information on these matters .","The ORG asks the NORP authorities to ensure regular access of PERSON family and lawyers in accordance with NORP law .","The unclear circumstances of PERSON arrest and some aspects of his detention and trial send a mixed message about democratic reform and the respect of Human Rights in NORP with respect to its LOC and other international commitments . \u201d","ORG Country Report on Human Rights Practices : NORP , released on DATE , reads as follows :","\u201c There was no official investigation into DATE beating and electric shocks police allegedly administered to GPE Shaykh ' and PERSON while they were in custody .","...","PERSON , head of ORG and former chairman of PERSON , the country 's state - run gas monopoly , remained in detention following his DATE kidnapping and return to the country from GPE by unknown forces . In DATE ORG sentenced PERSON to DATE in prison as well as other penalties , including restitution of $ MONEY ( CARDINAL somoni ) allegedly embezzled from PERSON . While most observers believed allegations of corruption and embezzlement were well - founded , local observers , human rights activists , and the political opposition charged that PERSON 's arrest , trial , and verdict were politically motivated to intimidate future political challengers . Although PERSON was convicted , he remained in a pre - trial detention facility at DATE . \u201d","Amnesty International , in a document entitled \u201c LOC : Summary of Human Rights Concerns , DATE \u201d , released on DATE , described the applicant 's situation as follows :","\u201c In DATE , the opposition ORG ( DPT ) expressed concern that its leader , PERSON , continued to be held in incommunicado detention in ORG . In DATE , PERSON was abducted from GPE , GPE , where he lived in exile , after the NORP authorities refused to extradite him to NORP . He was sentenced to DATE imprisonment by ORG in DATE on charges of terrorism and corruption , which he denied . He should have been moved to a prison camp shortly after the verdict but this did not happen . Supporters claimed that he was not allowed to receive parcels or newspapers and that visits of relatives and his lawyers had been obstructed . An appeal against his sentence had been turned down in a closed hearing in DATE . At DATE , PERSON was finally moved to a high security prison camp to serve the remainder of his sentence . \u201d","ORG on Human Rights Practices : NORP , released on DATE , reads as follows :","\u201c ... PERSON , head of ORG and former chairman of PERSON , the country 's state - run gas monopoly , remained in prison following his unlawful extradition from GPE and DATE conviction for corruption . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80211","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2007,"docname":"CASE OF JUHA NUUTINEN v. FINLAND","importance":3,"conclusion":"Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6 - Right to a fair trial);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the public prosecutor charged the applicant and the managing director of company X before ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) with CARDINAL counts of aggravated tax fraud and CARDINAL counts of tax fraud , as they had allegedly produced false invoices to ORG ( l\u00e4\u00e4ninverovirasto , l\u00e4nsskatteverket ) . They were also charged with an accounting offence ( count CARDINAL ) , as they had allegedly entered false data in the accounts of X. The prosecutor claimed that the applicant was responsible for the offences together with the managing director as , even though he did not have an official status in the management of the company , he had in fact participated in its management .","In the indictment dated DATE , count CARDINAL , for example , read as follows :","On DATE [ the managing director ] and [ the applicant ] together , [ the former ] as the managing director of [ company X ] and chairman of the board of directors and [ the latter ] as a person who was de facto responsible for the management of the company , submitted the company 's application for a NORP refund in the amount of FIM CARDINAL,CARDINAL [ some ORG CARDINAL,CARDINAL ] as regards DATE to ORG of GPE . The application stated that [ company Y ] had sold electrical relays to [ company X ] for ORG CARDINAL,CARDINAL,CARDINAL [ some ORG CARDINAL,CARDINAL ] and the latter company had sold the said products further to an NORP company for ORG CARDINAL [ EUR CARDINAL ] . The invoice relating to the sales transaction between [ company X ] and [ company Y ] was fabricated . By submitting such false information which affected the amount of taxes to the authorities for the purposes of taxation , [ the managing director ] and [ the applicant ] have attempted to evade taxes .","Applicable law : LAW , section CARDINAL of the Penal Code \u201d","As a further example , count CARDINAL , which concerned the co - defendant H.A. , read as follows :","By preparing the invoice in the amount of FIM CARDINAL,CARDINAL,CARDINAL referred to in count CARDINAL , and by handing it over to [ the managing director ] and [ the applicant ] to be attached to the application for a tax refund , [ H.A. ] , on DATE , intentionally furthered the criminal act committed by [ the managing director ] and [ the applicant ] .","Applicable law : LAW , CARDINAL and LAW , section CARDINAL ( CARDINAL ) of the LAW \u201d","The applicant pleaded not guilty , arguing that he did not have such a status in company X and therefore could not be held responsible for the alleged offences . Furthermore , he argued that he had not been involved in compiling the documents and that the transactions concerned had not been forged .","On DATE ORG found that the business transactions referred to in the relevant invoices were not genuine , that the invoices were false and that the applicant had , together with the managing director , produced false information to ORG and entered false data in the accounts of ORG referred to the evidence given by the co - accused and the witnesses , finding it proved , inter alia , that the applicant had actually acted in the company in such a position that he was to be held responsible for the offences together with the managing director . Thus , ORG convicted them both as charged and sentenced them to a suspended term of DATE imprisonment . The co - defendant , PERSON , was also convicted as charged .","The applicant appealed to ORG ( hovioikeus , hovr\u00e4tten ) against his conviction . He maintained that since he had not had any legal or de facto status in X , he had not produced any documents to ORG and he had not entered false data in GPE 's accounts . Furthermore , the invoices had not been fabricated . He also claimed that the witness evidence was contradictory and that ORG assessment of it was erroneous . At the end of his writ of appeal , he stated :","\u201c ... [ C]onsidering that the conduct of [ the applicant ] , on the whole , can not be considered aggravated , he could not be found guilty of more than aiding and abetting a tax fraud if he were , against all reason , to be found guilty of any offence ... \u201d","NORP The public prosecutor did not submit any written response to the applicant 's appeal . In its response to the applicant 's appeal ORG did not refer to a reclassification of the offences as aiding and abetting .","On DATE ORG held a hearing at which the parties and the witnesses were heard . It appears that there was no discussion as to whether the applicant 's alleged conduct could be classified as aiding and abetting the above offences .","In its judgment of CARDINAL DATE ORG convicted the applicant of CARDINAL counts of aiding and abetting an aggravated tax fraud and CARDINAL counts of aiding and abetting a tax fraud and an accounting offence and sentenced him to a term of DATE suspended imprisonment . ORG reasoned inter alia :","During the pre - trial investigation [ the managing director ] stated that [ the applicant ] had given instructions to [ H.A. ] as to the details to be included in the documents that were attached to the applications for a tax refund ... and had also otherwise taken care of matters and the business transactions of [ company X ] .","[ H.A. ] stated during the pre - trial investigation that he had prepared documents to be attached to applications for a tax refund ... in accordance with [ the applicant 's ] and [ the managing director 's ] instructions . According to [ H.A. ] , [ the applicant ] was in practice responsible for the operation of [ company X ] .","Witness [ V.M. ] stated in ORG that he had dealt with the invoice ... together with [ the managing director ] and [ the applicant ] .","In the light of the statements given by [ the managing director ] and [ H.A. ] during the pre - trial investigation , and of the witness statement of [ V.M. ] , which supports those statements , it has been established that [ the applicant ] participated in the planning of the offences referred to in the indictment and in the preparation of the documents needed for the commission of the offences .","... [ the applicant ] did not have such a position in [ company X ] as would have made it possible for him to commit , as a principal offender , the offences with which he was charged . When participating in the planning of the offences and in the preparation of the documents needed for the commission of the offences , however , he contributed to producing false information to ORG and [ on count CARDINAL ] to entering false data in the accounts . Thus he intentionally furthered the criminal acts of which [ the managing director ] has been found guilty . \u201d","The applicant sought leave to appeal from ORG ( korkein oikeus , h\u00f6gsta domstolen ) , arguing that he had been convicted of offences differing from those with which he had been charged . He submitted that the public prosecutor had not even claimed that he had been involved in the planning of the offences and compiling the documents . During the proceedings the applicant had not been informed of the nature and cause of these accusations and was thus not given any opportunity to defend himself against them . Furthermore , the assessment of the evidence was unfair since ORG had found the evidence sufficient even though the oral statements were contradictory .","On DATE ORG refused leave to appeal .","LAW , section CARDINAL(CARDINAL ) of LAW , in force at the relevant time , provided that a person who , during or before the commission of an offence by someone else , intentionally furthers the act through advice , action or exhortation , shall be convicted of aiding and abetting the principal offence . The sentence imposed on the person who aids and abets shall be reduced to CARDINAL of the maximum penalty prescribed for the principal offence .","The present case was commenced and therefore also concluded under the then provisions on criminal procedure in LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ) . The rule according to which an accused might not be convicted of an offence other than the one with which he had been charged was not included in the legislation until the coming into force on DATE of LAW ( laki oikeudenk\u00e4ynnist\u00e4 rikosasioissa , lag om r\u00e4tteg\u00e5ng i brottm\u00e5l ; Act no . CARDINAL ) . The rule was however established through case - law and it was codified upon the enactment of the new Act .","LAW , section CARDINAL , of LAW provides that the court may only pass a sentence for an act for which a punishment has been requested . The court is not bound by the heading or the reference to the applicable provision in the indictment . The court is however bound by the conduct described in the indictment . The prosecutor is under an obligation to define the alleged offence and the accused must be provided with an opportunity to defend himself or herself within the limits of the indictment .","According to the ORG , the court may e.g. convict an accused of aiding and abetting a tax fraud even if the prosecutor has charged him or her with the principal offence , as long as the conduct described in the indictment is not altered . This is based on the principle of jura novit curia , i.e. on the principle that the court itself is responsible for the legal assessment of the criminal act in question without being bound by the views of the prosecutor or of the accused . This was contested by the applicant .","LAW , section CARDINAL ( Act no . CARDINAL\/CARDINAL ) , of LAW reads in relevant part :","\u201c Leave to appeal may be granted only if it is important to bring the case before ORG for a decision with regard to the application of the law in other , similar cases or because of the uniformity of legal practice ; if there is a special reason for this because of a procedural or other error that has been made in the case on the basis of which the judgment is to be reversed or annulled ; or if there is another important reason for granting leave to appeal . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-a","6-3-b"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75292","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"DEMIR v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , PERSON , PERSON , PERSON , PERSON PERSON , PERSON and GPE , are NORP nationals . They are represented before the ORG by Mr PERSON and Mr PERSON , lawyers 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 and ORG villages , in the districts of GPE and Hozat , in GPE , where they own property .","In DATE , security forces forcibly evacuated DATE , \u015eahverdi and ORG on account of disturbances in the region . They also destroyed the applicants\u2019 property . The applicants and their families then moved to GPE , GPE and LOC where they currently live .","On DATE the representatives of the applicants filed petitions , on behalf of the applicants , with the offices of the NORP Governor and the GPE LOC requesting permission to return to their villages and compensation for the damage they had suffered .","On DATE ORG of the Governor \u2019s office in GPE sent the following reply to the ORG representatives :","\u201c ...","The \u015eahverdi , PERSON and ORG villages are being considered under the \u2018 Return to GPE Project\u2019 . Thus , the residents of those villages can reside in GPE , Arslando\u011fmu\u015f , GPE , GPE , ORG , GPE , ORG , GPE , PERSON , Cevizlidere , ORG , GPE , PERSON , NORP and NORP villages in GPE district or GPE , ORG , Tavuklar , PERSON , ORG , ORG , ORG , FAC , PERSON and PERSON villages in GPE district .","...","Your petition containing requests of permission to return to village will be considered under the \u2018 Return to Village and Rehabilitation Project\u2019 . \u201d","On DATE the representative of the applicants lodged a petition with ORG office in GPE complaining about the dereliction of duty by the NORP Governor and the GPE and GPE ORG ( g\u00f6revi ihmal ) .","On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG office at ORG .","On DATE ORG office at ORG decided not to start the proceedings into the allegation of dereliction of duty against the NORP Governor ( dilek\u00e7enin i\u015fleme konulmamas\u0131 ) .","On DATE ORG decided not to conduct an investigation into the applicants\u2019 allegations of dereliction of duty against the Hozat and GPE ORG .","On DATE the representatives filed an objection with ORG against the decision of ORG .","On DATE ORG rejected the objection .","On DATE ORG decided not to conduct investigation into the applicants\u2019 allegations against the Hozat and GPE ORG .","On DATE the representative of the applicants filed an objection with ORG against the decision of ORG .","On DATE ORG rejected the objection .","The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .","The official records indicated that 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5957","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2001,"docname":"REID v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a GPE national , born in DATE and living in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In his statement of DATE , taken by the police , NORP had stated that a gold chain had been stolen from him by a person who he knew as PERSON . He described PERSON as \u201c CARDINAL \u2019\u2019 he has got a flat top afro hair and is slim \u201d .","On DATE , the applicant was arrested and charged with robbing NORP of his gold chain . In an interview with the police DATE , he had admitted that he had been at the LOC known as \u201c ORG \u201d when the incident occurred on DATE . He alleged that another man called \u201c Blue \u201d had taken the chain and that he had talked to NORP , saying that he would try to get it back for him .","On DATE , the applicant was remanded in custody .","On DATE , the committal proceedings took place before ORG . The charges were read and explained to the applicant , who was represented . NORP gave evidence and described the person who robbed him as being black , pretty tall and having a flat - top hair cut . He however stated that , \u201c At the time I did n\u2019t know the person who robbed me ; I \u2019d never seen him before at that time . \u201d Questions were put to NORP in cross - examination by the applicant \u2019s counsel . The applicant was asked whether he wished to say anything in answer to the charge , to which he made no reply . The applicant was also given an opportunity to give evidence and to call witnesses . He did not do so . The applicant was committed for trial and detained on remand by order of the magistrates .","On DATE at the trial at ORG , prosecuting counsel from ORG ( \u201c ORG \u201d ) offered no evidence in support of the prosecution . According to the statement of claim issued by the applicant in later civil proceedings , prosecuting counsel informed the court that he had only just received the papers and that there were problems with them , referring to the identification of the applicant . After a short adjournment he asked for time to take a further statement from the victim PERSON then returned to the court and offered no evidence against the applicant . The applicant was released from custody .","On DATE , the applicant issued proceedings against the ORG claiming damages for negligence . He alleged that the prosecution had failed to take reasonable care in assessing whether there was , at the committal proceedings on DATE , sufficient evidence against the applicant .","On DATE the ORG issued an application to strike out the applicant`s claim on the ground that it disclosed no reasonable cause of action .","On DATE a Deputy High Court Judge struck out the applicant`s statement of claim as disclosing no reasonable cause of action , following the ORG of PERSON case - law to the effect that there was no general duty of care owed by ORG in relation to its prosecutions ( GPE - daf v. the Commissioner of Police for the LOC [ DATE ] ORG , see below in Relevant Domestic Law and Practice ) . The judge was of the opinion that the applicant`s case involved \" a point of law of general importance \" and issued a certificate , pursuant to LAW ) of ORG DATE entitling the applicant to \" leapfrog \" , i.e. to petition ORG directly .","On DATE the applicant petitioned ORG for leave to appeal . Leave to appeal was refused on DATE .","In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation .","Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing that :","\u2013 damage to the claimant was foreseeable ;","\u2013 the claimant was in an appropriate relationship of proximity to the defendant ; and","\u2013 it is fair , just and reasonable to impose liability on the defendant .","These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .","If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .","In the case of GPE - daf v. the Commissioner of Police for the LOC [ DATE ] ORG , ORG decided that no duty of care in negligence was owed by ORG ( \u201c ORG \u201d ) to defendants in fulfilling its statutory duty in prosecuting crime .","The case concerned CARDINAL plaintiffs , who had been arrested , charged and arrested in custody for serious offences and after periods of DATE respectively the ORG had discontinued the proceedings against them . They had instituted proceedings against the ORG claiming inter alia that the ORG had been negligent in failing to act with reasonable diligence in concluding that they were either innocent \/ or the prosecution bound to fail . The claims were struck out by the judge on the basis that they disclosed no reasonable cause of action . Their appeals to ORG were dismissed . In the leading judgment , Lord Justice PERSON referred to the CARDINAL criteria laid down in GPE ( cited above ) and had regard to the considerations as to whether the ORG should be treated differently in tort from private citizens and corporations . He noted that the ORG was a public law enforcement agency acting for the public as a whole and that , having regard to the torts of malicious prosecution and misfeasance in public office , a citizen aggrieved by a prosecutor \u2019s decision had potentially extensive private law remedies for a deliberate abuse of power .","\u201c That brings me to the policy factors which , in my view , argue against the recognition of a duty of care by the ORG to those it prosecutes . While it is always tempting to yield to an argument based on the protection of civil liberties , I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the ORG . In my view , such a duty of care would tend to have an inhibiting effect on the discharge by the ORG of its central function of prosecuting crime . It would in some cases lead to a defensive approach by prosecutors of their multifarious duties . It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence . The ORG would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the ORG . It would generate a great deal of paper to guard against the risks of law suits . The time and energy of ORG lawyers would be diverted from concentrating on their prime function of prosecuting offenders . That would be likely to happen not only during the prosecution process but also when the ORG is sued in negligence by aggrieved defendants . The ORG would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials . That is a spectre that would bode ill for the efficiency of the ORG and the quality of our criminal justice system . \u2026","Recognising that individualised justice to private individuals or trading companies who are aggrieved by careless decisions of ORG lawyers militates in favour of the recognition of a duty of care , I concluded that there are compelling considerations , rooted in the welfare of the whole community , which outweigh the dictates of individualised justice . I would rule that there is no duty of care owed by the ORG to those it prosecutes . In so ruling I have considered whether a distinction between operational and discretionary lapses , with potential liability in the former but not the latter , should be made . Whatever the merit of such a distinction in other areas of the law , I would reject it in regard to the ORG as impractical and unworkable and not capable of avoiding the adverse consequences for the ORG on which I have rested my decision . Subject to CARDINAL qualification , my conclusion that there is no duty of care owed by the ORG to those it prosecutes is intended to be of general application . The qualification is that there may be cases of which NORP v. the Chief Constable for ORG [ DATE ] CARDINAL All E.R. CARDINAL was an example , where the ORG assumes by conduct a responsibility to a particular defendant \u2026 And it is trite law that such an assumption of responsibility may generate legal duties . \u2026 \u201d","At the relevant time , LAW rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for \u201c plain and obvious cases \u201d , in which a claim was \u201c obviously unsustainable \u201d .","In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant \u2019s pleadings were true . The question for the courts was whether , assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .","The striking out procedure , now contained in the Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is regarded as an important feature of LANGUAGE civil procedure , performing the function of securing speedy and effective justice , inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law .","The ORG is a statutory public law enforcement agency set up by LAW DATE to prosecute criminal offences . It is an autonomous and independent body which reviews police decisions to prosecute and conducts prosecutions on behalf of the ORG . The ORG is headed by ORG ( \u201c the ORG \u201d ) and is answerable to ORG through the Attorney General .","The conduct of ORG Prosecutors is regulated by the Code for ORG , issued under LAW . Paragraph CARDINAL provides that review of the police decision to prosecute is a continuing process , so that ORG prosecutors are required to take into account any change in circumstances .","Before bringing a prosecution , a ORG prosecutor had , at the relevant time , to be satisfied that it fulfilled CARDINAL sets of criteria set out in the code , firstly concerning evidential sufficiency and , secondly , concerning the public interest . The first required that that a Crown Prosecutor be satisfied that there was enough evidence to provide a \u201c realistic prospect of conviction \u201d . This involved an assessment whether a jury or bench of magistrates , properly directed in accordance with law , would be more likely than not to convict the defendant of the charge alleged . ORG was required to draw on his experience of how the evidence was likely to \u201c stand up \u201d ( paragraph CARDINAL ) . Under the public interest criteria , ORG had , inter alia , to consider the very serious harm the stigma of a conviction could cause very young adults and take into account any change in the complainant \/ victim \u2019s attitude , e.g. the expression of a wish , after the initial complaint , that no action should be taken ( paragraphs CARDINAL(iii ) , QUANTITY ) and CARDINALff ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67633","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2004,"docname":"JORDAN v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant , PERSON GPE , is a GPE national , who was born in DATE and lives in GPE . The respondent Government are represented by Mr PERSON of ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , a search warrant was issued against the applicant under LAW ) of LAW DATE in connection with an investigation into suspected offences involving the possession and distribution of racially inflammatory material . A large number of items of property , including papers , were seized in the course of a search at the applicant 's home on CARDINAL DATE .","An application by the applicant for permission to apply for judicial review of the decision to retain and sift through the documents was refused by a High Court judge as the judge considered that the police had acted both reasonably and lawfully in seizing and retaining the material for their investigation . A renewed application was dismissed by ORG on DATE .","On DATE the applicant was charged with offences under LAW DATE , and on DATE he was committed to stand trial . The applicant was charged together with another man , PERSON","The applicant applied for a stay of the proceedings on the ground that he was too ill to stand trial . The stay was granted by ORG on DATE . After hearing the prosecution , the applicant and the medical evidence , the judge stated :","\u201c ... It is obvious that Mr PERSON is not fit to conduct his own defence as is his right .. And , indeed , it may well be the case that he is not fit to be tried even if counsel were able to represent him . I must say that , having seen Mr PERSON in court and having heard Mr GPE , he is able to put his case forcibly and eloquently , although that may be on the medical evidence before me only over very short periods of time . I have therefore come to the conclusion that I should apply a stay in this case but it will not be a permanent stay . I intend to apply to this indictment a conditional stay . The indictment will be stayed upon the following conditions which I have had the opportunity of canvassing both with [ counsel ] on behalf of the Crown and PERSON PERSON and it is right to say Mr PERSON does not agree with them , but they are the conditions which I impose . Firstly , that the stay will continue to apply providing that , one , the defendant 's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried ; and , secondly , providing that the defendant does not engage in any activity , either political , social or personal , which demonstrates to the satisfaction of a court that he is in fact able to stand his trial , irrespective of his medical condition . \u201d","The formal order incorporating that ruling reads as follows :","\u201c The indictment be conditionally stayed against PERSON and the stay will continue to apply :","Providing the defendant 's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried .","Providing the defendant does not engage in any activities either political , social or personal which demonstrates to the satisfaction of a court that he is in fact able to stand his trial irrespective of his medical condition . \u201d","On DATE , after the ruling on a stay of the proceedings , ORG discussed the question of materials which were still retained . The prosecution stated that they had offered to return seized material which was not relevant to the prosecution of the co - defendant , but that the applicant had stated that he wanted all of the material or none of it . The applicant did not accept the prosecution 's claim , and maintained that \u201c special procedure material \u201d should never have been seized under the warrant . At the end of the discussions , the judge stated that all the seized material which was not of assistance to the co - defendant or the prosecution in the case against the co - defendant would be returned to the applicant .","The applicant tried to challenge , by an application for judicial review , both ( i ) the conditions of the stay and ( ii ) the fact that his property had not been returned . Mr ORG refused leave on DATE , and in so doing made the following comments :","\u201c CARDINAL . Despite what is said by the ORG [ the Lord Chancellor 's Department ] and the ORG [ ORG ] I have some disquiet about the propriety of staying an indictment on terms which might appear to suggest that freedom from future prosecution is to be in some way dependent upon abstention from political activity .","But ( i ) most of this application for [ judicial review ] is plainly barred by [ LAW ] DATE LAW ( CARDINAL ) and I can see no even arguable basis for saying that LAW ( CARDINAL ) is not LAW compatible and ( ii ) that part which is not so barred is plainly without merit \u2013 the application in relation to the property is , at least in the first instance , a matter for ORG , not ORG . \u201d","A renewed application was refused on DATE .","On DATE , the applicant applied to ORG for return of \u201c special procedure material \u201d . He states that he has had no reply . He further wrote to the GPE police and ORG on DATE , asking for return of CARDINAL items of \u201c special procedure material \u201d to be sent to his home in GPE \u201c with a complete list of all items \u201d . He was informed that the return of property would be considered at the end of the trial against the co - defendant . The co - defendant was acquitted on DATE .","On DATE , ORG informed the applicant that the material seized on DATE could be returned to him with the following exceptions :","\u201c ( i ) The electronic stunning device , which is a prohibited weapon .","( ii ) Multiple copies of those documents which are the subject of counts on the indictment of publishing or distributing written material . Only a single copy of these documents will be returned . [ There follows a list of the CARDINAL documents referred to . ]","[ iii ] Material distributed by you to others is no longer your property and will not be returned . \u201d","The letter continued : \u201c The material is being returned to you because [ H 's ] trial has been concluded . It is not accepted that any of the material is special procedure material . \u201d","A similar letter was sent to the applicant by ORG for the Chief Constable of GPE Police on DATE , and the applicant was informed that he could collect the items from FAC from DATE . The applicant replied on DATE that \u201c a proper return of the property to me is a return of it to the place from which it was taken ... and with a complete listing beforehand of all items , individually , so that they can be checked off on return . \u201d","The applicant repeated his demands in a letter of DATE , adding reference to a typewriter which he claimed had been damaged whilst in police custody , and again on CARDINAL and DATE .","On DATE , ORG refused an application made by the applicant in DATE for permission to apply for judicial review in respect of materials held . The judge noted \u201c The application covers substantially the same allegation[s ] of illegality ... as those made on previous occasions and rejected . Furthermore , the applicant has liberty to apply to the Recorder ... for the return of any documents or original documents not required for the trial which has been conditionally stayed \u201d .","On DATE , ORG wrote to the applicant that the applicant 's property ( save for the excepted items ) would be delivered to his home in GPE , and the majority of items would be listed individually . Certain bulk items would not figure individually . The applicant was informed that it might not be possible to deliver his property to him before he left GPE for DATE , but that it was open to him to collect it from FAC .","On DATE the applicant refused to collect the property from any police station , and insisted on its return to GPE by DATE .","The property was not handed over or collected , and on DATE , ORG wrote to the applicant in the following terms :","\u201c I note , upon a review of my file in this matter , that the question of the return of your property remains outstanding . You will be aware from previous correspondence that my client is prepared to return to you all of the material seized from your house save for the items set out in my letter of DATE , a copy of which I enclose .","I am instructed to indicate that my client is prepared to make arrangements for the return of your property at a time and date to suit you . It would obviously be preferable for all concerned if the hand over of your property could be undertaken at your address in GPE but if a trip to your property in GPE is necessary , that could also be arranged .","With that in mind , would you please be so kind as to contact the writer with a suggested time and date , or a number of such options , in order that arrangements can be made with my client for your property to be returned .","It would assist if you would kindly revert to me in the course of DATE and with that in mind we enclose a stamped addressed envelope for your early response . \u201d","The applicant replied on DATE :","\u201c My position remains as expressed during and to the end of that previous contact in the matter . I was open then to the return of all of my seized property on precisely and essentially the terms rightfully laid down by me in my letter then , and I am open now to such return on those terms , nothing other and nothing less than that .","Are you people therefore now to make return in full fulfilment of those terms ?","...","If you are not , then determination of the matter will have to await eventual legal process encompassing the continuation of wrongful retention . \u201d","On DATE , after a further exchange of letters , the applicant sent a draft signed Agreement to ORG , in which he demanded return of all items ( save those which had been handed over already , the stunning device , and a single copy of each of CARDINAL documents ) , a list including each individual item , and an acknowledgment of damage to a typewriter . The agreement stated that the applicant was not able to check the property against the list for TIME per day , and ended \u201c No deletion or alteration or addition to the Agreement is acceptable to the property owner , the terms here set out being non - negotiable \u201d . In his covering letter , the applicant stated \u201c Unless I receive back , signed and dated by you , the here enclosed Agreement , nothing can be done in the matter apart from , for my part , moving towards legal action for the return of all my long withheld property \u201d . ORG declined to arrange for the Agreement to be signed , but confirmed that there was still no resistance in principle to the return of the applicant 's property on the lines already laid out .","Correspondence continued in the same tone , the final exchange running as follows :","The applicant 's letter of DATE to ORG :","\u201c ... the agreement is absolutely essential , now or at any future time , and that I will not accept now or at any time in the future what , in the absence of the agreement , amounts to a dumping disregardful of it . Sign and return the agreement , if you want the return to go ahead , otherwise stand confirmed and revealed as opposed to a fair and proper return for suspect reasons . As I will be returning to GPE in DATE time , the signed agreement needs to reach me straight away . Unless you are signing and returning the agreement and arranging the return of property on this basis , there is no point in further correspondence from you which I am not prepared to deal with because it will be futile and time - wasting , having given you my final and irrevocable answer . \u201d","ORG , letter to the applicant of CARDINAL DATE :","\u201c For the avoidance of doubt , my client 's position is as follows :","All property , save for that set out at numbered paragraphs ( i ) to ( iii ) of my correspondence dated DATE , to be listed in an inventory .","ORG to return the listed property on a date and time to be agreed .","Adequate and mutually convenient arrangements to be made to facilitate a thorough checking of the property against the inventory . \u201d","Section CARDINAL ( CARDINAL ) of LAW DATE provides :","\u201c A person who has in his possession written material which is threatening , abusive or insulting , or a recording of visual images or sounds which are threatening , abusive or insulting with a view to","( a ) in the case of written material , its being displayed , published , distributed or included in a programme service , whether by himself or another , or","( b ) in the case of a recording , its being distributed , shown , played or included in a programme service , whether by himself or another","is guilty of an offence if he intends racial hatred to be stirred up thereby or , having regard to all the circumstances , racial hatred is likely to be stirred up thereby . \u201d","Section CARDINAL ( CARDINAL ) of LAW DATE provides :","\u201c If in GPE and GPE a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of LAW , the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated . \u201d","Certain categories of material can not be the subject of an application for a warrant before a magistrate , but must be the subject of an application to a circuit judge . This material is broadly speaking material such as personal records acquired or created in the course of any trade , profession or business . The material is known as \u201c excluded material \u201d and \u201c special procedure material \u201d . Excluded material is material , including journalistic material , held in confidence ( Section CARDINAL(CARDINAL ) Police and Criminal Evidence Act DATE \u201c PACE \u201d ) . Special procedure material includes journalistic material not held in confidence ( Section CARDINAL PACE ) .","Independently of common law powers to seize and retain material falling within the terms of a warrant , a constable who is lawfully on LOC may seize material on the LOC if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence , and that it is necessary to seize it to prevent it being concealed , lost , altered or destroyed ( Section CARDINAL(CARDINAL ) PACE ) .","The Notes for Guidance which accompany LAW relating to search and seizure ( \u201c Code of Practice for ORG and ORG found by ORG or Premises \u201d , applicable to warrants and searches after DATE ) state that \u201c Any person claiming property seized by the police may apply to a magistrates ' court under LAW DATE for its possession , and should , where appropriate , be advised of this procedure \u201d .","Section CARDINAL ( CARDINAL ) of LAW DATE provides that :","\u201c In relation to the jurisdiction of ORG , other than its jurisdiction in matters relating to trial on indictment , the High Court shall have all such jurisdiction to make orders of mandamus , prohibition or certiorari as ORG possesses in relation to the jurisdiction of an inferior court . \u201d","Criminal courts have wide common law powers to stay proceedings . A stay typically takes the form of an order that the charge should not be proceeded with . In certain exceptional and limited circumstances the prosecution would be entitled to seek to lift a , including the rights of the accused ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-118734","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2013,"docname":"CASE OF ERKAPI\u0106 v. CROATIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Non-pecuniary damage - award","judges":"Dmitry Dedov;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["The applicant was born in DATE and lives in GPE .","On DATE a ORG ( PERSON ) investigating judge questioned a witness , GPE , about alleged heroin trafficking in GPE . GPE testified , inter alia , that in DATE he had transported QUANTITY of heroin from GPE to another person , known to him as \u201c Mario \u201d .","As part of a further police investigation of the organised supply of heroin in GPE , on DATE ORG of ORG ( FAC uprava GPE , ORG kriminalisti\u010dke policije , ORG kriminaliteta droga ; hereinafter \u201c the police \u201d ) questioned a suspect , ORG , who stated that he had bought heroin from the applicant . During the questioning he was assisted by lawyer PERSON The questioning of ORG commenced at TIME , after a defence lawyer appeared at the police station at TIME , and ended on DATE at TIME","On DATE the police questioned another suspect , ORG , who stated that he was a heroin addict and that he had bought heroin from the applicant . During the questioning he was assisted by lawyer PERSON His questioning commenced at TIME , after a defence lawyer appeared at the police station at TIME , and finished at TIME on DATE .","On DATE the applicant was arrested on suspicion of supplying heroin . The applicant was questioned by the police but chose to remain silent .","DATE the applicant was brought before an investigating judge at ORG . He denied all the charges against him but decided to remain silent and not to give any evidence . The applicant was again questioned by the investigating judge on DATE , but gave no evidence .","On DATE an investigation was opened in respect of the applicant and CARDINAL other individuals , including ORG and FAC , in ORG in connection with a suspicion of conspiracy to supply heroin in GPE in the period DATE .","On DATE and DATE the investigating judge sought to hear ORG , who chose to remain silent and not to give any evidence . When questioned by the investigating judge ORG was not assisted by a lawyer .","On DATE the investigation was extended to another defendant , PERSON , who also chose to remain silent but denied all the charges against him .","On DATE the police questioned another suspect , GPE He stated that he had been a heroin addict for DATE and that he had been buying heroin from the applicant . During the questioning he was assisted by lawyer PERSON His questioning commenced at TIME , after a defence lawyer appeared at the police station at TIME , and finished at TIME on DATE .","On DATE the investigating judge heard evidence from ORG , who chose to remain silent . During the questioning PERSON was not assisted by a lawyer , but he stated that his lawyer was PERSON","On DATE the investigating judge heard evidence from witness GPE , who retracted his statement of DATE , stating that it had been given under coercion by the investigating judge and the police . He stated that it was not true that he had transported QUANTITY of heroin to \u201c Mario \u201d . He also stated that he did not know the applicant .","On DATE the investigating judge questioned the applicant in connection with the allegations made by GPE The applicant denied the charges and refused to make any further statement .","On DATE the investigating judge heard GPE , who complained that he had given his statement to the police under duress and that during his questioning he had been represented by a lawyer who was not of his choosing . Before the investigating judge GPE was represented by lawyer PERSON On DATE the investigating judge extended the investigation to GPE and CARDINAL other individuals .","On DATE the GPE State Attorney \u2019s ORG ( GPE dr\u017eavno odvjetni\u0161tvo u GPE ) indicted the applicant and CARDINAL other defendants in ORG . The applicant was charged with conspiracy to supply heroin in the period DATE , whereas some of the co - accused were charged with supplying and possession of heroin .","The applicant lodged objections to the indictment on DATE , arguing that it had numerous substantive and procedural flaws . He requested , inter alia , that all official notes of the police interviews be excluded from the case file , as well as the record of ORG \u2019s oral statement given to the police . He contended that ORG had been a heroin addict and that he had given his statement while at an advanced stage of withdrawal .","A CARDINAL - judge panel of ORG dismissed the applicant \u2019s objections against the indictment and remitted the case for trial on DATE . It excluded the official notes of the police interviews from the case file but not the record of ORG \u2019s oral statement .","On DATE the applicant lodged an appeal with ORG ( PERSON ) against that decision , and on CARDINAL DATE ORG dismissed his appeal as ill - founded .","On DATE the president of the trial panel of ORG commissioned a psychiatric report on the applicant \u2019s mental capacity . The psychiatric report was drawn up on DATE . It confirmed that the applicant had full mental capacity and was intellectually able to participate in the proceedings .","After he had received some further documentation from the defence concerning the applicant \u2019s psychiatric treatment , on DATE the president of the trial panel commissioned another psychiatric report . The medical expert reiterated all his previous findings .","At a hearing held on DATE the applicant pleaded not guilty .","Further hearings were held on DATE and DATE , at which the trial court heard evidence from CARDINAL witnesses and an expert witness in toxicology . A police officer , ORG , gave oral evidence concerning a police trap they had set for CARDINAL of the accused , ORG , and also concerning his questioning of another accused , GPE","On DATE the president of the trial panel commissioned a psychiatric report on the mental capacity of GPE at the time the alleged offence was committed .","At a hearing on CARDINAL DATE a psychiatric expert testified that GPE , in the period concerning the charges held against him , had had diminished mental capacity but that he had been able to understand the nature of his acts . In that period he had been addicted and a user of illegal drugs . This meant that he did not have significant withdrawal crises . The parties made no objections to these findings .","At the same hearing the trial panel commissioned a psychiatric report in respect of the other accused , including ORG and ORG","On DATE the president of the trial panel informed the defence lawyers that he had received information from the NORP authorities that CARDINAL of the witnesses , ORG , could be heard in GPE since he was serving his prison sentence there . The president of the trial panel asked the defence lawyers to inform him whether they wished to be present during the questioning of that witness in GPE .","On DATE the psychiatric expert submitted his report commissioned at the hearing on CARDINAL DATE . He found that , in the period concerning the charges , ORG and ORG had been heroin addicts . Their mental capacity had therefore been diminished but they were able to understand the nature of their acts at the time . In addition , ORG had a personality disorder .","On DATE the applicant \u2019s defence lawyer informed ORG that he would not travel to GPE for the questioning of witness PERSON On DATE witness ORG was questioned by an investigating judge in court in GPE , GPE . He did not provide any evidence concerning the applicant . The record of his statement was forwarded to ORG .","A further hearing was held on DATE , at which witness PERSON reiterated that he had made his first statement , on DATE , to the investigating judge under coercion and fear of ill - treatment by the police . He claimed that he had never transported any drugs as he had described in his statement .","At a hearing on DATE the psychiatric expert confirmed his findings in respect of FAC and ORG The defence lawyers raised objections concerning the methods used and the expert \u2019s findings .","Another hearing was held on DATE , at which the defence lawyers asked for witness ORG , who had been heard by the NORP authorities , to be heard at the trial . The trial panel dismissed their request , on the grounds that there were significant impediments to securing his presence at the hearing , and that he had already been questioned by the NORP judicial authorities .","At a hearing on DATE the applicant , ORG and ORG all gave evidence . The applicant again denied all the charges against him and complained that he had been ill - treated by the police .","PERSON testified that he did not know the other co - accused . As to the statement he had made to the police , he stated :","\u201c I have been a [ heroin ] addict for DATE and when I was in the police [ station ] nobody asked me anything but [ a police officer ] PERSON , whose face I will never forget , drafted a record in another room . I asked for my lawyer , PERSON but the police told me that PERSON was a mafia lawyer and that he could not come ... I would like to add that when I was arrested the police told me that they needed me to give a statement . They knew I was soft and that I would sign everything they asked just to get out . That is how I signed this record , which was , as I said , drafted in another room ...","I can answer the questions of the president of the trial panel by saying that I had a number of interviews with [ the police officer ] ORG but he told me that this would never become part of a case file and he told me the same thing for this [ statement ] . However , since [ K.A. ] did not want to call my lawyer PERSON , he called this other lawyer who never gave me any advice . He just told me that he had signed the record and that I could do whatever I wanted . I have to say that [ this lawyer ] was a woman . Nothing I said in that statement is true ... except the part in which I said that I was an addict . ... The only true information [ in that statement ] is my personal details and the fact that I was an addict but [ the police officer ] already knew that . The part where I said that I was not in withdrawal was absolutely not true ...","I have known K.A. for DATE , he has arrested me on a number of occasions and he once lodged a criminal complaint against me . Once he also threatened me that if I did not tell him something , he would lodge a criminal complaint , which he had previously prepared against me , but that never happened . He tolerated my [ heroin ] addiction but asked me to tell him from whom I was buying drugs , and sometimes would tell him . Sometimes I would tell him the truth but mostly not , I was trying to gain time . ... I trusted [ K.A. ] when he brought me that record and told me to sign it and that everything would be all right , that I could go . Therefore I signed it .","As to the questions put by [ the accused ] I can answer that when I was in the police [ station ] the only thing that was important for me was to get out and to get myself a heroin fix , or methadone , which I was just going to pick up when the police arrested me . \u201d","ORG also testified that he had been ill - treated by police and that his statement was the result of ill - treatment . He stated :","\u201c ... In [ the police station ] the ill - treatment started immediately . CARDINAL or QUANTITY police officers , whom I did not know , told me to spread my legs and put my hands behind my back with my head pressed against the wall . Whenever somebody passed by me I was kicked , and when I fell they kicked me on the ground . They were jumping all over me . This lasted for some time and then they started to negotiate , asking me to give a statement . I asked for lawyers GPE or S.B. but they told me as regards [ lawyer ORG ] \u2018 why do you need that ORG and also that [ lawyer PERSON ] would not come . The ill - treatment ... started again and then [ police officers ] [ K.]A. and [ PERSON came . They told me that they were good policemen and asked me to give a statement . They also told me that [ FAC ] had already made a statement and that they had CARDINAL other statements and that I should also make a statement , sign it and I could go . Then I signed that statement but I did not see what was in it . I remember that there was some police lawyer who told me \u2018 you just sign here kid\u2019 . The policeman also blackmailed me with an arrest warrant against me which had been issued previously , saying that they would withdraw it if I signed .","... I would like to confront policemen PERSON concerning everything I have just said . ...","The policeman also did not provide me with any medical assistance from a doctor and when I asked for heptaton they told me that there was no chance I could get it before I signed .","... I used to buy drugs all over the place , but never from anybody who is present in this courtroom . ...","Nothing [ in the statement ] is true except my personal details . ...","I know [ police officers ] PERSON They did not physically ill - treat me but they were asking me to work for them . It is not true what was written , that I was not in withdrawal . I was , and the policeman waved the heptaton in front of my eyes . They were showing me the drugs . The defence lawyer did not see anything , but he was only there for TIME , he signed [ the statement ] and left . \u201d","Another hearing was held on DATE , at which GPE gave evidence . As to his statement given to the police , he stated :","\u201c ... [ In the police station ] I was held for TIME . I was asked about Erkapi\u0107 and [ the policeman ] told me that if I confirmed what they said they would let me go . So I did that , I signed the record and left . I did it because I was having a severe physical crisis .","... I never asked for the defence lawyer PERSON He was just there at CARDINAL moment and the policeman told me that he was my defence lawyer . I do n\u2019t remember but I do n\u2019t think I ever signed a power of attorney for him .","The record was written previously , and not while the lawyer was there . In the presence of the lawyer I was just confirming what was written in the record and then I signed it . I signed it without reading it , because I could not wait to get out and take drugs ...","During my police questioning I was never offered medical assistance , although I was in withdrawal .","... the policemen saw that I was in withdrawal ... because I told them so , and I asked for a doctor and heptaton , but they said no .","At the same hearing another co - accused , ORG , testified that while he had been in police custody he had heard police officers beating and interrogating GPE for TIME .","After the accused had given evidence the applicant \u2019s defence lawyer asked for the records of the oral statements given to the police by GPE , ORG and GPE to be excluded from the case file as evidence obtained unlawfully . The defence lawyers of the other co - accused made the same request .","At a hearing on DATE the trial court dismissed their requests , on the grounds that the records of the statements given to the police did not reveal any reason to exclude them from the case file .","At the same hearing ORG added that he had been told by policeman PERSON that they wanted to put the applicant in prison for DATE or kill him . PERSON and ORG reiterated that their statements given to the police had been a result of withdrawal symptoms and crisis .","In their closing argument , the applicant \u2019s defence lawyers argued that the only evidence against the applicant was the statements of his co - accused , which had been made to the police under duress and pressure . They asked for the applicant to be acquitted .","On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment , and imposed a confiscation order on him in the amount of CARDINAL NORP kunas ( HRK ) .","The Zagreb County Court based the applicant \u2019s conviction solely on the statements ORG , ORG and GPE had made to the police . In addition it considered that witness PERSON had also testified that he had transported QUANTITY of heroin to the applicant .","As to the lawfulness and probative value of the records of oral statements given to the police by ORG , ORG and GPE , that court noted :","\u201c The request to exclude the record of the statement made by the fourth accused , ORG , to the police on DATE , made by the defence lawyer of the fourth accused ORG , on the ground that when giving the statement [ ORG ] had been undergoing withdrawal from heroin , was dismissed . [ The record of his statement ] does not reveal any suspicion that [ ORG ] was in withdrawal . Moreover , there was a defence lawyer present during his questioning who did not have any objection as to the manner of the questioning . This record does not reveal any circumstances which could raise the suspicion that the questioning of the fourth accused ORG by the police on DATE had been unlawful ...","It was also requested that the records of the statements given to the police by the third accused ORG , the fourth accused , ORG , and the eleventh accused , GPE , be excluded from the case file on the ground that these statements were made under duress and that as such they could not be used in the proceedings . The records referred to do not reveal any circumstances which could raise the suspicion that the statements had been made under coercion or pressure . The defence lawyers were present during the questioning and they did not have any objections . ... There is nothing credible to support the suspicion that the records referred to were obtained unlawfully , and therefore the request for their exclusion was dismissed ...","Statements by the third accused , ORG , the fourth accused , ORG , and the eleventh accused , GPE , made to the police in the presence of their defence lawyers , are accepted by this court as they are clear , specific and precise . These statements support each other , they have a number of details which could obviously be known only from personal experience ( particularly the details of how they contacted the first accused , PERSON , and how the drugs were distributed and hidden ) ... The statements these accused made during the trial , where they tried to show that their previous statements were a result of unlawful treatment by the police ( threats , ploys , ill - treatment ) , are not accepted by this court , as their aim is to avoid criminal responsibility .","Moreover , the records of the police interviews do not contain any element capable of placing their lawfulness in question . This court is not persuaded that various unlawful aspects [ of the police questioning ] alleged by ORG did not provoke any reaction by the accused , who argued that [ any reaction ] would have been futile . These allegations were made DATE after the events concerned had taken place and are therefore not credible and are an obvious fabrication aimed at avoiding criminal responsibility . \u201d","On DATE the applicant lodged appeals with ORG against the first - instance judgment . He argued , inter alia , that his conviction had been based solely on the statements made to police by his co - accused , although that had been evidence obtained unlawfully , as his co - accused had been ill - treated by police during the questioning . Moreover , they had been heroin addicts and at the time of the questioning were going through withdrawal .","He further complained that the first - instance court had failed to hear the defence lawyers who had allegedly been present during the police questioning , and the police officers who had questioned his co - accused . In a situation in which his co - accused had raised the issue of coercion and illtreatment during the police questioning , and in view of the fact that they had incriminated not only themselves but also him , the trial court had been obliged to check their testimony . As to the statement of witnesses PERSON , the applicant pointed out that this witness had never said that the person he knew as \u201c PERSON \u201d was the applicant .","DATE . On DATE ORG dismissed the applicant \u2019s appeal . It upheld the findings of ORG that there was no evidence in the case file to suggest anything unlawful in the records of interviews with the police by the applicant \u2019s co - accused . ORG pointed out that they had been questioned in the presence of the defence lawyers and that there was nothing to indicate any withdrawal symptoms , coercion or oppression . ORG also added :","\u201c The psychiatric expert ORG found that in DATE [ ORG ] , as an addict , had a high tolerance of heroin , but [ the expert ] did not say that he was experiencing a withdrawal crisis , which [ the expert ] reiterated at the hearing . The defence had no questions ...","There was not a single piece of evidence , including the report drawn up by psychiatric expert ORG , to suggest that [ I.G.H. ] had been unable to understand the consequence of his actions , and particularly that he was unable to testify before the relevant authorities , regardless of his heroin addiction and diminished mental capacity at the time the offence was committed . Equally , there is not a single piece of evidence that the accused ORG , and GPE ... , on account of their heroin addiction , were unable to understand the nature of their actions or to testify before the authorities . ... \u201c","The applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the above judgment on DATE , reiterating his previous arguments .","On DATE ORG dismissed the applicant \u2019s constitutional complaint , endorsing the reasoning of ORG . The decision of ORG was served on the applicant on DATE .","The relevant provisions of LAW ORG , ORG no . DATE , CARDINAL , CARDINAL , CARDINAL\/CARDINAL , CARDINAL ) read as follows :","\u201c In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . \u201d","The relevant part of LAW of LAW ( Ustavni zakon o FAC PERSON , ORG nos . CARDINAL\/CARDINAL , CARDINAL and DATE ) reads :","\u201c CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that a particular action on the part of a state body , a body of local and regional self - government , or a legal person with public authority , affecting his or her rights and obligations , or placing him under suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : \u201c constitutional right \u201d ) ...","NORP If another legal remedy exists against the violation of the constitutional right [ complained of ] , a constitutional complaint may be lodged only after that remedy has been used .","NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law , is allowed , remedies are exhausted only after the decision on these legal remedies has been given . \u201d","The relevant provisions of LAW ( PERSON , ORG nos . TIME , CARDINAL\/CARDINAL , DATE , CARDINAL\/CARDINAL ) provide :","\u201c ... ( CARDINAL ) Whoever , without authorisation , manufactures , processes , sells or offers for sale or buys for the purpose of reselling , keeps , distributes or brokers the sale and purchase of , or , in some other way and without authorisation , puts into circulation , substances or preparations which are designated by regulation as narcotic drugs shall be punished by imprisonment for DATE , or by long - term imprisonment .","( CARDINAL ) If the criminal offence referred to in paragraph CARDINAL of this LAW is committed while the perpetrator is part of a group or a criminal organisation , or has organised a network to sell drugs , he shall be punished by imprisonment for not DATE or by long - term imprisonment . \u201d","The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL\/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , and DATE ) are as follows :","\u201c ( CARDINAL ) The courts\u2019 decisions in criminal proceedings can not be based on unlawfully obtained evidence ( unlawful evidence ) .","( CARDINAL ) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of defence , the right to dignity , reputation , honour and respect for private and family life guaranteed under LAW , law and the international law , and evidence obtained in breach of the rules of criminal procedure in so far as set out in this LAW , as well as any other evidence obtained unlawfully . \u201c","\u201c ( CARDINAL ) Where this LAW provides that the judicial decision can not be based on certain evidence , the investigating judge shall , at the motion of the parties or ex officio , exclude such evidence from the file before the conclusion of the investigation or before he gives consent for the indictment to be preferred without investigation ( LAW paragraph CARDINAL ) . The decision of the investigating judge is subject to appellate review .","...","( CARDINAL ) After the investigation and after the consent is given to prefer the indictment without the investigation ( LAW paragraph CARDINAL ) , the investigating judge shall also proceed according to the provisions of paragraph CARDINAL and CARDINAL of this LAW in respect of all information which according to LAW paragraph CARDINAL and LAW paragraph QUANTITY of this LAW is given to the ORG Attorney or to police officers by citizens or by a suspect who has been interrogated contrary to the provisions of LAW paragraph CARDINAL of this Act . \u201d","\u201c ... ( CARDINAL ) In the course of the investigation the police authorities shall inform the suspect pursuant to LAW paragraph CARDINAL of this Code . At the request of the suspect the police authorities shall allow him to appoint a lawyer , and for that purpose they shall stop interviewing the suspect until the lawyer appears or at TIME from the moment the suspect requested to appoint a lawyer . ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time , the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police administrations by ORG for the territory of a county ... If the suspect does not appoint a lawyer or if the requested lawyer fails to appear within the time period provided , the police authorities may resume their interview with the suspect ... The ORG Attorney has the right to be present during the interview . The record of any statement made by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings ... \u201c","\u201c ( CARDINAL ) If an accused , while being questioned at a trial , contradicts a previous statement he has made , the president of the trial panel shall draw his attention to these contradictory statements and ask him why he is testifying differently . If necessary , his previous statement or part of that statement shall be read out .","( CARDINAL ) If an accused refuses to testify at a hearing or refuses to answer a question , his previous statement or part of that statement shall be read out . \u201d","\u201c The provisions of this chapter concerning the reopening of the criminal proceedings shall also be applicable ... , on the basis of a decision of ORG which refers to some ground for the reopening of criminal proceedings or for an extraordinary review of the final judgement . \u201d","\u201c A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :","...","an infringement of the defence rights at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . \u201d","The relevant provisions of the amended LAW Zakon o kaznenom postupku , ORG nos . CARDINAL , DATE , CARDINAL\/CARDINAL , GPE , GPE , ORG ) provide :","\u201c ...","( CARDINAL ) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final ORG decision in connection with the final judgment of ORG by which , in respect of the defendant , a violation of the rights and freedom under LAW has been found .","( CARDINAL ) The request for reopening of the proceedings in connection with the final judgment of ORG can be lodged within a DATE time limit starting from the moment of the finality of the judgment of ORG . \u201d","\u201c ...","( CARDINAL ) If prior to the entry into force of this LAW a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [ in which the decision was adopted ] , ... , the provisions of that legislation shall be applicable [ to the proceedings concerning the remedy ] , unless otherwise provided under LAW .","( CARDINAL ) Articles CARDINAL - CARDINAL of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under LAW ( Official Gazette nos . PERCENT , CARDINAL\/CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , and DATE ) . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92428","languageisocode":"ENG","respondent":"ISL","branch":"ADMISSIBILITY","date":2009,"docname":"ADOLFSSON AND OTHERS v. ICELAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants , ( CARDINAL ) Mr PERSON , ( QUANTITY ) PERSON and ( CARDINAL ) Mr PERSON are NORP nationals who were born respectively in DATE , DATE and DATE . The first and third applicants reside in PERSON and the second applicant in GPE , GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in PERSON .","ORG were represented by their Acting Agent , PERSON , of ORG and ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants were the direct heirs of PERSON \u00feorsteinsd\u00f3ttir ( \u201c M. \u201d ) , who was born on CARDINAL DATE and who died on DATE .","PERSON had stated in her will , made in DATE that all her property was to be divided after her death equally between her brother , PERSON , and a woman named PERSON ( \u201c NORP \u201d ) . It was also stated that if X were to die before M , all her property should pass to PERSON , and if she was no longer alive , to her children and grandchildren . There were no blood ties between M. and PERSON who had been married to PERSON \u2019s stepson NORP Y. and his father PERSON had died before DATE when PERSON made her will .","The second and third applicants are the children of PERSON and the first applicant is the husband of PERSON another child of PERSON , sister of the second and third applicants , who is now deceased .","In DATE a deceased brother of PERSON left her a considerable inheritance .","PERSON was hospitalised in DATE on account of her mental condition and her inability to take care of herself . She was diagnosed as suffering from Dementia Senilis CARDINAL.CARDINAL .","In the meantime , in DATE , PERSON , Attorney , and PERSON and PERSON were convicted of embezzlement of PERSON \u2019s assets during DATE .","As from DATE PERSON was , at the request of PERSON , declared incapable of managing her own financial affairs . On DATE the District Commissioner of PERSON ( hereinafter referred to as \u201c the Commissioner \u201d ) appointed PERSON as M. \u2019s legal trustee . At that time information about various financial irregularities involving ORG was on public record , including a number of warrants of execution issued against his company ( DATE ) , a petition for bankruptcy and liquidation of the company to cover preferential claims amounting to CARDINAL NORP Crowns ( ORG ) ( DATE ) , a conviction and CARDINAL months\u2019 conditional prison sentence for embezzlement of GPE salaries ( DATE ) , plus a number of petitions for bankruptcy ( DATE and DATE ) .","In DATE passed away .","On DATE the Commissioner requested ORG to provide yearly reports regarding decisions he had taken on PERSON \u2019s behalf . Thereafter , in the absence of any such reports , renewed requests were made on DATE , CARDINAL DATE and DATE .","On DATE ORG was convicted of embezzlement of PERSON \u2019s assets , in respect of amounts totalling ISK CARDINAL ( MONEY ) and was sentenced to CARDINAL months\u2019 imprisonment .","On DATE the first applicant \u2019s deceased wife and the second and third applicants instituted civil compensation proceedings against the Commissioner and the ORG , on the ground that PERSON had sustained damage as a result of the appointment , as a legal trustee , of a person who had a very dubious past . They claimed that upon PERSON \u2019s death this claim had passed to them as PERSON \u2019s heirs .","On DATE the ORG found in favour of the respondent and rejected the ORG claim , finding no ground for imposing strict liability , nor any basis for finding negligence since the Commissioner had had no reason to believe that ORG was unfit to be a custodian when he was appointed .","According to the summary of facts contained in ORG judgment , the plaintiffs were granted permission to carry out a private division of PERSON \u2019s estate on DATE and completed their division of the estate in DATE . In its conclusions , ORG held inter alia that the estate at the time of PERSON \u2019s death could not be considered a party to the case , as the division of the estate had been concluded in DATE .","On DATE ORG upheld the lower court \u2019s judgment , giving the following reasoning :","\u201c ORG concurs with ORG that in order for the defendant to be held liable for the losses suffered by the [ applicants ] and caused by the guardian , it must be demonstrated that this was due to neglect on the part of the defendant \u2019s employees . The circumstances which resulted in the appointment of the guardian are not entirely clear . Nevertheless , it appears to be established that the person who was appointed guardian had taken the initiative in having the testator deprived of her financial competence ; it appears that there was reason for doing so , and that the mother of the appellants , ORG and ORG , was consulted on this ; she has since died , but at the time she was PERSON \u2019s sole heir . At the time that the guardian was appointed , the estate of a limited company of which he was in charge was the subject of liquidation proceedings , and sentence had been passed on him in the GPE and ORG for not having transferred money which the company had collected from its employees . On the other hand , there is no evidence to suggest that he was not competent to manage his own financial affairs and in other respects he met , formally , the conditions for being appointed as a guardian according to LAW , No . CARDINAL . It has not been established that the District Commissioner should have suspected that he would discharge his duties of financial management badly . With the introduction of LAW , No . CARDINAL\/CARDINAL , great changes were made in the legal provisions and practice regarding reporting by guardians and the supervision of their work . Repeated attempts by the Commissioner \u2019s employees to have the guardian comply with his statutory duties under section CARDINAL ( CARDINAL ) of that Act to report , straightaway in the early part of DATE , produced no result . It can be deduced from the ... ORG judgment of DATE that by that date most of the damage had been done . From the above , it follows that even if the application of the law by the Commissioner \u2019s office should have been more efficient , it has not been established that the Commissioner or his employees violated their official duties and so brought compensatory liability on the defendant . In the light of these considerations , ORG judgment must be upheld . \u201d","Section CARDINAL of LAW , No . CARDINAL\/CARDINAL , provides :","\u201c An heir may not dispose of an inheritance which he expects to receive . \u201d","This provision has been understood as placing a prohibition on any type of disposal , whether by assignment , mortgage or other deed , of an inheritance which has not yet devolved on the recipient . It also follows from this provision that an inheritance that has not yet devolved on the recipient can not be the object of execution measures carried out against the person who expects to receive the inheritance . The rule reflects accepted academic views on the concept of \u201c property \u201d in NORP law . CARDINAL of the foremost conditions for any right to be considered \u201c property \u201d is that it is both unconditional and active so that the owner in question can dispose of it as if it were his property . This provision of LAW confirms these views regarding a future inheritance ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95590","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF SIERPINSKI v. POLAND","importance":4,"conclusion":"Violation of P1-1;No violation of Art. 6;Just satisfaction reserved","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","The applicant 's family owned a plot of land situated in GPE . The applicant is the heir of the owners of that property .","By virtue of the Decree of DATE on the Ownership and Use of Land in GPE ( \u201c the DATE Decree \u201d ) the ownership of all private land was transferred to GPE .","The applicant 's predecessors requested to be granted the right of temporary ownership ( w\u0142asno\u015b\u0107 czasowa ) of the plot of land pursuant to section CARDINAL of the CARDINAL Decree . On DATE ORG ( PERSON ) refused the request on the basis that the plot of land had been designated for public use ( namely , an agricultural co - operative ) .","On DATE the GPE - ORG ( Prezydium Dzielnicowej PERSON ) issued a decision granting the right of perpetual use of the plot of land to PERSON","On DATE the applicant 's predecessor GPE lodged an application with the Minister of Planning and Construction ( Minister PERSON i GPE ) for annulment of the administrative decision of DATE . On DATE the Minister declared the decision null and void .","On DATE ORG ( PERSON ) declared that the decision of DATE had been issued in breach of law . However , ORG refused to declare the decision null and void in view of its irreversible legal consequences \u2013 on the basis of the DATE decision a civil contract had been concluded with the perpetual user of the land who , in DATE , had transferred the rights to the estate to his son .","On DATE ORG dismissed the applicant 's claim for compensation in respect of the DATE decision on the grounds that he had not proved \u201c an actual loss \u201d ( see domestic law part below ) .","On DATE the applicant lodged a compensation claim with ORG .","On DATE ORG delivered a judgment and awarded the applicant LAW . The court found that as a consequence of the unlawful DATE decision the applicant had lost his property right and thus had suffered loss amounting to the value of that right . The court further considered that ORG had the legal capacity to be sued for damages in this case .","ORG , represented by the Mayor of GPE , appealed against the judgment , arguing that the municipality ( gmina ) should have been sued in this case .","On DATE ORG allowed the appeal and dismissed the applicant 's claim . The court , although it observed that the case - law had been divergent on the issue , inclined to the view expressed in a ORG resolution of DATE , that the municipality DATE and not ORG \u2013 had the legal capacity to be sued for damages resulting from an administrative decision issued before DATE , provided that the decision had been annulled or declared unlawful after that date ( see domestic law part below ) .","The applicant lodged a cassation complaint . He submitted that the judgment was in breach of relevant substantive law on account of an erroneous interpretation of ORG of DATE . He also invoked Articles CARDINAL \u00a7 CARDINAL ( CARDINAL ) and CARDINAL of LAW arguing that the examination of the cassation complaint was justified because there was a significant legal issue in the case and a need for an authoritative interpretation of provisions which had been interpreted differently in the courts ' case - law . The applicant gave examples of divergent case - law of ORG . He further pointed to the fact that the resolution invoked by ORG , amending the hitherto prevailing jurisprudence , had been delivered DATE after the judgment of ORG .","On DATE ORG refused to entertain the cassation complaint . The decision was taken by a single judge sitting in camera and was not reasoned .","On DATE a panel of CARDINAL judges of ORG adopted a resolution in other proceedings in which it concluded that ORG had the legal capacity to be sued for damages caused by an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after DATE .","On DATE the applicant lodged a complaint with ORG seeking to have the judgment of ORG of DATE declared contrary to law ( see the domestic law part ) .","On DATE ORG rejected the complaint . The court concluded that the notion of the judgment \u201c appealed from \u201d within the meaning of LAW ( preventing the examination of the complaint \u2013 see the domestic law part ) required that a cassation complaint against a judgment had been lodged \u201c effectively \u201d , meaning it had not been rejected . In the court 's view a cassation complaint which ORG had refused to entertain should be understood , for the purpose of this Article , as an \u201c effectively lodged cassation complaint \u201d , as well as a cassation complaint which had been examined on the merits . ORG in its decision of DATE refused to examine the applicant 's cassation complaint . ORG thus concluded that the judgment of ORG had been appealed against effectively and the complaint under LAW was not available .","On DATE new provisions on a \u201c cassation complaint \u201d came into effect , replacing the provisions concerning the cassation appeal .","Article CARDINAL of the Code of Civil Procedure provides that a party may lodge a cassation complaint against a final and valid judgment of a second - instance court . A party must be represented by an advocate or a legal adviser .","The relevant part of Article CARDINAL reads as follows :","\u201c The cassation complaint may be based on the following grounds :","CARDINAL ) a breach of substantive law caused by its erroneous interpretation or wrongful application ;","CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . \u201d","Article ORG specifies the requirements of a cassation complaint . It reads in its relevant part :","\u201c \u00a7 CARDINAL . A cassation complaint should include :","CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;","CARDINAL ) NORP an indication of the grounds for the cassation complaint ;","CARDINAL ) NORP arguments showing that its examination would be justified ;","CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . \u201d","Article CARDINAL provides :","ORG shall entertain the cassation complaint if :","CARDINAL ) there is a significant legal issue in the case ,","CARDINAL ) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case - law ,","CARDINAL ) the proceedings are invalid at law ,","CARDINAL ) the complaint is manifestly well - founded .","ORG shall decide to accept or refuse to entertain the cassation complaint during a sitting in camera ; the decision shall not require written reasons .","According to Article CARDINAL a cassation is examined by a panel of CARDINAL judges and in all other cases ORG takes decisions sitting in a single judge formation . As a rule , the cassation complaint is examined at a sitting in camera unless there is a significant legal issue in the case and the party lodging a complaint requested a hearing to be held , or ORG finds it appropriate to hold a hearing ( Article CARDINAL ) .","Pursuant to LAW , having allowed a cassation complaint , may quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG fails to find non - conformity with the law , it dismisses the cassation complaint ( Article CARDINAL ) .","An amendment of CARDINAL DATE to ORG , which entered into force on DATE , introduced a new extraordinary remedy against a final judicial decision \u2013 a complaint to declare a final and binding ruling to be contrary to law ( skarga o stwierdzenie niezgodno\u015bci z prawem prawomocnego orzeczenia ) .","According to LAW , a party to the proceedings may request ORG to declare a final decision of a second - instance court to be contrary to law , provided that the party has suffered damage as a result of that decision and it has been impossible to have the decision reversed or quashed by way of remedies available to the party .","Pursuant to \u00a7 CARDINAL of that Article a party can not lodge a complaint against a second - instance decision which had already been challenged by way of a cassation , or against a decision issued by ORG .","The new regulations have been challenged before ORG . In a judgment of CARDINAL DATE ( ORG CARDINAL ) ORG found the new LAW incompatible with the LAW , but only insofar as it allowed ORG to refrain from giving reasons for its decisions .","In this respect ORG referred , inter alia , to its judgment of DATE ( SK CARDINAL ) , in which it had already examined the possibility of ORG under LAW ( LAW ) to dismiss an \u201c evidently groundless \u201d cassation appeal in a criminal case at a sitting without the participation of the parties and without giving written reasons for the judgment . The court found in this respect that \u201c there is the accumulation at a single trial of CARDINAL factors excluding the court 's obligations as regards the provision of information ( i.e. the informational obligation of the court ) . These are : secrecy of the proceedings ; the use of the ambiguous term \u201c evidently groundless \u201d by the legislator ; and the absence of an obligation that reasons be provided . \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW , which entered into force on DATE , provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","Article CARDINAL of the LAW , insofar as relevant , provides as follows :","\u201c CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .","Judgments of ORG , ... shall be published without delay .","A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...","A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . \u201d","DATE of LAW reads :","\u201c CARDINAL . The ORG shall , at a sitting in camera , discontinue the proceedings :","CARDINAL ) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible ;","CARDINAL ) in consequence of the withdrawal of the application , question of law or constitutional complaint ;","CARDINAL ) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the ORG .","If these circumstances come to light at the hearing , the ORG shall take a decision to discontinue the proceedings .","Item CARDINAL ( CARDINAL ) of the present Article does not apply if giving a decision on the compatibility with LAW of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights . \u201d","Article CARDINAL of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which the judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the date of the judgment of ORG .","The Decree of DATE on real property in GPE expropriated real property situated in GPE and transferred ownership to the municipality of GPE .","Pursuant to section ORG ) of ORG of DATE , ownership of property situated in GPE was assigned to ORG .","A very significant reduction in ORG land resources was brought about by legislative measures aimed at reforming the administrative structure of the ORG .","ORG ( introductory provisions ) of DATE ( PERSON wprowadzaj\u0105ce ustaw\u0119 o samorz\u0105dzie terytorialnym i ustaw\u0119 o pracownikach samorz\u0105dowych \u2013 \u201c the DATE LAW ) , which came into force on DATE , and other related statutes enacted at that time , re - established local self - government and municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . Pursuant to section QUANTITY ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .","Section CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the LAW provides :","\u201c ORG takes over :","CARDINAL ) obligations and receivables of local bodies of state administration ( ... ) resulting from final and binding court rulings and administrative decisions delivered before CARDINAL DATE ( ... ) . \u201d","Under LAW , former owners had the right to lodge an application for temporary ownership of his plots ( w\u0142asno\u015b\u0107 czasowa ) . The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use . If he considered that granting temporary ownership to former owners would not be incompatible with public use , a decision could be made in favour of the former owner .","Article CARDINAL of the Law of DATE on ORG ( ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with perpetual use ( u\u017cytkowanie wieczyste ) .","The right to perpetual use is regulated by LAW . An individual or a legal entity may be granted such a right over land owned by the ORG or a local authority . The right comprises a right to use the land to the exclusion of others for DATE , on payment of a yearly fee . The person entitled to the right can dispose of it .","LAW permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest , if this is not prohibited by specific legal provisions . In particular , pursuant to LAW , a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction , or if it is without a legal basis or contrary to the applicable laws .","Article CARDINAL of LAW , as applicable at the material time , read in its relevant part :","\u201c A person who has suffered loss on account of the issuing of a decision in a manner contrary to LAW or on account of the annulment of such a decision shall have a claim for compensation for actual loss , unless he has been responsible for the circumstances mentioned in this provision . \u201d","An administrative decision in respect of the compensation claim could be appealed against in a civil court .","Section CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform . The problem was subject to divergent judicial interpretation .","On DATE a panel of CARDINAL judges of ORG adopted a resolution ( no . III CZP CARDINAL\/CARDINAL ) , finding that the municipality DATE and not ORG \u2013 had the legal capacity to be sued for damages resulting from an administrative decision issued before DATE , provided that the decision had been annulled or declared unlawful after that date .","In its resolution of DATE ( no . III CZP CARDINAL\/CARDINAL ) , adopted by a panel of CARDINAL judges , ORG concluded that ORG had the capacity to be sued for damages caused by an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after DATE . The resolution was adopted following a legal question referred to ORG by ORG having a similar case before it .","ORG confirmed this stance in several subsequent judgments , delivered in cases similar to the present one ( see below ) .","On DATE the Opolskie Governor declared that the decision of DATE of the Head of municipality NORP had been adopted in breach of law . The plaintiff 's claim for compensation against ORG ( ORG Governor ) was dismissed by the first- and second - instance courts . In particular , ORG , invoking the resolution of ORG of DATE ( ref no . Ill CZP CARDINAL\/CARDINAL ) , considered that ORG did not have the legal capacity to be sued in that case since municipality NORP had taken over its obligations under LAW .","ORG quashed the appellate judgment and remitted the case , relying on the above - mentioned resolution of DATE .","In DATE the ORG of ORG refused to grant the right of perpetual use of land covered by the operation of the CARDINAL Decree . Subsequently , ORG sold CARDINAL flats in the building . On DATE the Minister of Construction declared that the decision of DATE had been adopted in breach of law .","The plaintiffs lodged a civil action for compensation against ORG . ORG allowed his claim in part and awarded compensation from ORG .","On DATE ORG amended the firstinstance judgment and dismissed the claim against ORG finding that it lacked legal capacity to be sued in the case .","On DATE ORG quashed the appellate judgment and remitted the case , invoking the resolution of DATE .","In its judgment of DATE ( no . I CKN CARDINAL\/CARDINAL ) , ORG ruled that there was a causal link between an administrative decision , taken under the CARDINAL Decree , refusing to grant the previous owner of a real property ( a land with a building ) the right of temporary ownership ( perpetual use ) of that property and the sale of apartments in the building by ORG .","On DATE ORG adopted a resolution ( no . III CZP CARDINAL\/CARDINAL ) in which it found that financial loss resulting from a decision under LAW refusing to grant the right of perpetual use , which had been issued in breach of law , constituted a loss within the meaning of LAW and an actual damage within the meaning of LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75143","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"DEMIRBAS AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON , 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 district of ORG , in ORG , where they own property .","In DATE security forces forcibly evacuated GPE and destroyed the applicants\u2019 property . The applicants then moved to ORG , where they currently live .","On unspecified dates , the applicants lodged petitions with ORG office , the Governor \u2019s office in GPE , the GPE office in ORG and with the military authorities , requesting redress for the damages they had suffered and permission to return to their village . It is to be noted that the applicants did not submit any document to the ORG attesting their applications to the above - mentioned offices . They claim that these documents can be obtained from the Governor \u2019s office in GPE and ORG office .","On DATE one of the applicants , PERSON , lodged a petition with the Governor \u2019s office in GPE , requesting to be allocated a house by this office . He received no response to his petition .","On DATE PERSON applied to ORG ( sulh hukuk mahkemesi ) for an assessment of the damage he had suffered as a result of the burning down of his home and possessions .","On DATE ORG dismissed the applicant \u2019s request , holding that he would not benefit from this assessment since the alleged incident had occurred a long time ago .","On DATE ORG in ORG sent a letter to the village mayors in ORG . According to that letter , access to some villages of ORG would be possible only during DATE for the inhabitants to work in their farms , and only during DATE . The villagers would not be allowed to spend DATE in their village . Moreover , the villagers would be required to apply to the gendarme stations and request permission . The applicants\u2019 village , GPE , was not listed among these villages .","On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office informing him that the military operations against terrorism were to continue in the district . The commander requested the GPE office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties .","On DATE the applicants lodged a petition with ORG requesting redress for the damages they had suffered .","On DATE the applicants lodged a petition with ORG office in GPE for submission to ORG office in ORG , requesting that an investigation be initiated against the perpetrators of the destruction of their houses and those who prevented their access to their properties in GPE . They relied on Articles CARDINAL , CARDINAL and CARDINAL of LAW . They further requested compensation for the pecuniary and non - pecuniary damages they had suffered .","On an unspecified date ORG office in ORG issued a decision of non - jurisdiction and sent the case file to ORG office in the CARDINALth ORG . The applicants contend that the decision of non - jurisdiction was not served on them . They further assert that they have not been informed about the outcome of the investigation .","On DATE ORG rejected the applicants\u2019 request , holding that the administration could not be considered to be responsible , as there had not been an operation in or around the village of GPE in DATE by the security forces . ORG further noted that there had been an investigation in the region and that it had not been established that any house had burned down .","In DATE the applicants lodged their applications with ORG alleging violations of Articles CARDINAL , DATE , CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL to the Convention .","On DATE the applicants brought an action before ORG requesting legal aid in accordance with LAW .","On DATE the applicants brought a further action before ORG requesting compensation for the damages they had suffered due to the destruction of their houses and their inability to return to their village and to have access to their property .","On DATE ORG refused to consider the applicants\u2019 requests , holding that the applicants should have brought separate actions as the alleged damage had not been a collective one .","On an unspecified date the applicants appealed against the judgment of ORG .","On DATE ORG ( NORP ) dismissed the ORG appeal noting that LAW did not provide a right to appeal against an administrative court \u2019s refusal to consider a petition .","On an unspecified date the applicants filed separate cases with ORG . The proceedings are still pending before the latter .","Until DATE the applicants lived in LOC , a village of the district of ORG , in ORG , where they own property .","In DATE security forces forcibly evacuated GPE and destroyed the applicants\u2019 property . The applicants then moved to ORG , where they currently live .","On unspecified dates , the applicants lodged petitions with ORG office , the Governor \u2019s office in GPE , the GPE office in ORG and military authorities requesting redress for the damages they had suffered and permission to return to their village . It is to be noted that the applicants did not submit any document to the ORG attesting their applications to the above - mentioned offices . They claim that these documents can be obtained from the Governor \u2019s office in GPE and ORG office .","On DATE ORG in ORG sent a letter to the village mayors in ORG . According to that letter , access to some villages of ORG would be possible only during DATE for the inhabitants to work in their farms , and only during DATE . The villagers would not be allowed to spend DATE in their village . Moreover , the villagers would be required to apply to the gendarme stations and to request permission . The applicants\u2019 village , LOC , was not listed among these villages .","On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office in ORG informing him that the military operations against terrorism were to continue in the district . The commander requested the GPE office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties .","On DATE the applicants lodged a petition with ORG requesting redress for the damages they had suffered .","On DATE the applicants lodged a petition with ORG office in ORG , requesting that an investigation be carried out against the perpetrators of the destruction of their houses and those who prevented them from having access to their properties in GPE . They invoked Articles CARDINAL , CARDINAL and CARDINAL of the Criminal Code .","On an unspecified date ORG office in ORG issued a decision of non - jurisdiction and sent the case file to ORG office in the CARDINALth ORG . The applicants contend that the decision of non - jurisdiction was not served on them . They further assert that they have not been informed about the outcome of the investigation .","On an unspecified date the applicants brought an action before ORG requesting compensation for the damages they had suffered due to the destruction of their houses , their inability to return to their village and to have access to their property .","On DATE ORG refused to consider the applicants\u2019 requests , holding that the applicants should have brought separate actions as the alleged damage had not been a collective one .","On an unspecified date one of the applicants , PERSON lodged a complaint with ORG office in ORG against FAC , ORG . The applicant alleged that ORG had threatened him concerning his petition with ORG . He further contended that he had been compelled to sign statements in FAC .","On DATE ORG issued a decision of non - prosecution concerning the petition of PERSON , noting that he had not substantiated his allegations .","On DATE ORG rejected the applicants\u2019 request noting that the statutory time limit under LAW had expired .","The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village . Currently there was no obstacle preventing villagers from returning to their homes and possessions 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98121","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF BEZYMYANNYY v. RUSSIA","importance":3,"conclusion":"Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","The applicant is a businessman and a former controlling shareholder of a private company ORG \u201c NORP Belgorod \u201d . According to the applicant , in DATE a number of third persons produced a fake sales contract in respect of his shares in the company , as well as a fake register of the shareholders . They then tried to gain control over the company . Thereafter the matter was brought before the domestic courts .","On DATE ORG of Belgorod , presided by judge PERSON , dismissed the applicant 's action to have the sale annulled and the register of shareholders declared fake and illegal . The court refused to order a forensic examination of the evidence , including a copy of the register of shareholders and the registrar 's book of records , which the applicant had claimed were fake , and having admitted and considered them , rejected the applicant 's action as groundless .","On DATE that judgment was upheld on appeal by ORG .","On DATE , at the applicant 's request , a police investigator initiated criminal proceedings for fraud against a number of third persons . On DATE the investigator ordered an expert examination of the documents which the applicant had claimed were fake in the proceedings presided over by judge B.","On DATE and CARDINAL DATE the respective examinations were completed . They confirmed that the copy of the register of shareholders and the registrar 's book of records had been tampered with and that some of the entries had been fraudulently deleted or altered .","It appears that on DATE the criminal investigation was discontinued .","Thereafter the case was repeatedly suspended and resumed .","The latest decision to resume the proceedings was taken on DATE . The outcome of the investigation is unclear .","On DATE the applicant wrote a letter to ORG with a copy to ORG , alleging that in the course of the proceedings in his case in DATE judge B. , \u201c acting in the exercise of her duties , had committed a crime by delivering a deliberately unjust decision knowingly based on incorrect and sometimes even openly forged documentary evidence \u201d . The letter set out the applicant 's views on the circumstances of his case , referred to the outcome of forensic examinations carried out by the investigator in the criminal case and requested the responsible officials to bring criminal proceedings against judge B.","Identical letters were sent to the President of ORG and the head of ORG on DATE .","NORP In response to the letter of DATE , on an unspecified date the President of ORG and judge PERSON requested ORG office to bring criminal proceedings against the applicant for libel .","By decision of DATE an investigator instituted proceedings against the applicant for libel .","On DATE the applicant was questioned as a witness and stated that judge PERSON had received bribes .","On DATE those proceedings were discontinued because of an amnesty law .","On an unspecified date judge PERSON sued the applicant for defamation , claiming MONEY ( RUB - MONEY ( ORG ) ) in damages and seeking an order for the retraction of the impugned statements .","By judgment of DATE the ORG of ORG granted the claims in full . The court noted that the judicial decision taken by judge PERSON remained in force and that the applicant had used all possible remedies against it by instituting appeal proceedings . Without examining the form or accuracy of the statements made by the applicant in his letter and having refused his requests for the admission of evidence , the court concluded that the applicant had defamed judge B. It ordered the applicant to send ORG , the Prosecutors of ORG and GPE , the President of ORG and ORG of the LOC a letter retracting his previous allegations against judge PERSON court also awarded judge PERSON CARDINAL ( approximately EUR CARDINAL ) in non - pecuniary damages .","On appeal , the applicant argued that the court had failed to examine whether his letter to the relevant authorities could constitute dissemination of information within the meaning of the applicable law , that the inaccuracy of his allegations had been presumed and he had been refused a chance to prove them and that the first instance court had failed to require from judge B. any proof of actual harm resulting from the letter . The applicant also objected to the use of the statements which he had made during the interview with the investigator of the libel case .","On appeal the ORG reduced the award of damages to RUB CARDINAL ( approximately EUR CARDINAL ) and upheld the rest of the judgment on DATE .","By a final decision of CARDINAL DATE ORG rejected the applicant 's action to annul the transfer of his property to a number of third persons .","By a judgment of CARDINAL DATE ORG rejected his application to annul a lease agreement between the applicant and a certain commercial entity .","Article CARDINAL of the LAW of the Russian Federation provides that citizens of GPE have the right to apply in person , as well as to submit individual and collective applications , to state bodies and local government institutions .","Article CARDINAL of LAW of GPE provides that a citizen may apply to a court to have information damaging his or her honour , dignity or professional reputation retracted unless the person who disseminated such information proves its accuracy . In addition to retraction , the citizen may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such information .","Section CARDINAL of Resolution no . CARDINAL of LAW of ORG of GPE of DATE ( as amended on DATE ) \u201c On certain issues arising during the examination by courts of action for the protection of the honour and dignity of citizens , and also the professional reputation of citizens and legal entities \u201d defines damaging information as information which is inaccurate and contains assertions that a citizen has broken the law or transgressed moral principles as well as impairing the honour or dignity of a citizen or the professional reputation of a citizen or a legal entity . The dissemination of such information is understood as the publication or broadcasting of such statements or their inclusion in professional references , public speeches , applications to ORG officials or communication in other forms , including oral , to CARDINAL another person . The communication of such information to the person whom it concerns can not be considered as its dissemination .","Section CARDINAL of the ORG lays the burden of proof on the defendant to show that the information disseminated was accurate ; the plaintiff must prove only that the defendant disseminated the information ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107627","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2011,"docname":"CASE OF WISNIEWSKA v. POLAND","importance":3,"conclusion":"Remainder inadmissible;No violation of P1-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["In DATE ORG issued an initial approval for a development project on land owned by the applicant ( decyzja o warunkach zabudowy i zagospodarowania terenu ) providing , on the basis of a local land development plan adopted in DATE , for the improvement and resurfacing of FAC and the construction of a roadway . On DATE ORG adopted a local land development plan for the construction of a road junction in the vicinity of the applicant \u2019s land , indicating that there was a pressing need to improve and widen a road leading from the city centre to the airport . On DATE ORG ( PERSON ) issued another approval for the construction of the roadway , based on the provisions of the local land development plan adopted on DATE .","On DATE the ORG Governor approved a construction project for the roadway .","NORP The applicant owned CARDINAL plots of a total surface of QUANTITY . In DATE an estimate of the value of CARDINAL plots , covering QUANTITY , was prepared by expert GPE with a view to their expropriation . That expert assessed the market value of the land at MONEY ( PLN ) .","On DATE a negotiation meeting was held at ORG . The town offered ORG CARDINAL,CARDINAL as compensation for plots nos . CARDINAL\/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE , at PLN MONEY per square metre , calculated on the basis of the DATE estimate . The applicant refused to accept this price and argued that the market value of QUANTITY of similar land in the town was MONEY .","In DATE another expert , PERSON , estimated the value of the applicant \u2019s properties at FAC per square metre , based on the agricultural character of the land . On DATE , referring to that report , ORG , acting on behalf of the Mayor of Gda\u0144sk , fixed a DATE time - limit for the applicant to conclude a contract for the sale of her land for the sum of PLN CARDINAL,CARDINAL . It informed her that if further negotiations failed , expropriation proceedings would be instituted and the land would be expropriated against payment of compensation in the amount of ORG .","On DATE another negotiation meeting was held . ORG proposed conditions identical to those proposed in DATE . The applicant reiterated her position as to the price and submitted that she would accept replacement property within the limits of the municipality as compensation .","On DATE expropriation proceedings were instituted .","NORP On DATE an administrative hearing was held in ORG . The applicant proposed that the City should give her ORG QUANTITY for her land , but her offer was rejected . The applicant again suggested that she should be given other plots in exchange for her land , but that solution was rejected on the ground that the City did not have any suitable plots at its disposal .","NORP In DATE expert PERSON updated the estimate , having regard to the passage of time and the increase in market prices . She assessed the price of the applicant \u2019s land at ORG . In DATE , an expert commissioned by the applicant assessed the price of the land at ORG CARDINAL .","On DATE the Mayor of ORG gave a decision by which the CARDINAL plots referred to in paragraph CARDINAL above were expropriated . The amount of compensation for the land and the fence constructed on it was fixed at PLN CARDINAL,CARDINAL . It was to be paid within DATE from the date on which the expropriation decision became final . He observed that the amount of the compensation had been fixed on the basis of an estimate prepared by an expert , with reference to prices of similar plots on the local real estate market in DATE .","The applicant appealed . She argued that the decision was in breach of sections CARDINAL , CARDINAL and CARDINAL of LAW . She submitted that it was based on the estimate drawn up in DATE , which no longer reflected current prices of land . She referred to the caselaw of ORG according to which compensation for expropriated land should take into consideration current local market prices for similar types of land and , also , prices of such land sold by the municipality by way of tender . She referred to a privately commissioned estimate prepared by a certified expert ( see paragraph CARDINAL above ) , according to which the price of QUANTITY of comparable land in FAC at that time was ORG CARDINAL .","On DATE ORG , acting on behalf of the PERSON Governor , upheld the expropriation decision , noting that it had been given in order to have the local land development plan implemented . The expropriation was therefore in the public interest . The negotiations between the parties had failed . CARDINAL estimates drawn up for the purpose of the negotiations were consistent and indicated , in the light of prices paid for properties of a similar character and location , that the market value of the property concerned was PLN DATE for QUANTITY . In the circumstances , the decision was lawful .","The applicant appealed to ORG . She argued that the price the municipality had offered during the negotiations bore no reasonable relation to the market value of her land . The municipality had refused to offer her replacement property , despite the fact that at the time it had been selling numerous properties to private buyers by way of tender .","At a hearing held on DATE the applicant applied for a stay of the enforcement of the expropriation decision . The court refused , noting that the enforcement of the decision had been stayed ex lege because of the authorities\u2019 failure to submit their reply to the applicant \u2019s appeal within the time - limit .","By a judgment of DATE ORG quashed the Governor \u2019s decision . The court observed that the modernisation of FAC was in the public interest as it was a part of the No . CARDINAL trunk road . It further noted that in the light of the documents in the case file it had not been shown beyond doubt that the expropriation of all of the applicant \u2019s designated plots had been necessary in order to implement the road construction project . In their decisions the authorities had failed to refer to the maps and plans prepared in connection with the local land development plan and road construction projects to show that the plots concerned were indeed covered by those projects .","The court further addressed the question of the compensation fixed by the contested decision . It noted that the authorities , when holding the administrative hearing on CARDINAL DATE , had failed to respect the relevant procedural provisions . Under the provisions of LAW the purpose of an administrative hearing was to ensure , in a situation where there was a discrepancy between expert opinions as to compensation , that the experts were questioned and the discrepancy elucidated . Furthermore , the parties should have been given an opportunity to put questions to the experts and to make oral statements before the administrative authority . No such measures had been taken . The court noted that the hearing had been held prior to the date on which the last expert opinion concerning the compensation had been prepared . There was no proof in the case file that this last opinion had ever been served on the applicant .","The judgment with its written reasons was served on the applicant \u2019s lawyer on DATE .","NORP The expropriation and compensation proceedings before the appellate authority were later conducted again . ORG informed the parties that the administrative hearing would be held again and requested ORG to submit further evidence as to the prices of similar properties . Ultimately CARDINAL hearings were held , on DATE and DATE . CARDINAL experts were questioned . The parties were invited to consult the case file .","On DATE the NORP Governor upheld the firstinstance decision in its part concerning the expropriation . He fixed the amount of compensation to be paid to the applicant at PLN MONEY . He referred to the expert opinions prepared for the purposes of the proceedings and explained which evidence and conclusions had been considered credible . He reiterated that the land concerned was of an agricultural nature .","Compensation was paid to the applicant on DATE . She accepted it , but observed that the amount was unsatisfactory . She subsequently appealed , submitting that the method by which the compensation had been fixed was to her detriment , that the second - instance authority had failed to respect the guidance contained in the judgment of ORG and that the amount of compensation did not reasonably correspond to the value of the land .","NORP On DATE ORG quashed the contested decision , finding that the method used to establish the value of the expropriated land was not in compliance with the applicable legal regulations . In particular , the expert opinion prepared by GPE , heavily relied on by the first - instance authority , was based on prices applicable in DATE . The proceedings were subsequently conducted again . The Governor invited the parties to submit new evidence and to consult the case file . Another expert was appointed and submitted his evaluation report , assessing the value of the applicant \u2019s property at PLN MONEY .","On DATE another administrative hearing was held before the second - instance authority . A time - limit was fixed for the parties to submit new evidence . Both the applicant and ORG availed themselves of that right .","On DATE the Governor issued a new decision . It upheld the first - instance expropriation decision and increased the amount of compensation to ORG MONEY , with reference to the new expert report .","On DATE the applicant , represented by a lawyer , appealed , submitting arguments similar to those on which she had relied in her previous appeal .","On DATE the applicant revoked the power of attorney given to her lawyer .","On DATE ORG rejected her appeal , noting that the applicant had failed to pay court fees . This decision was served on the applicant \u2019s new lawyer on DATE .","On DATE the applicant requested the court to grant her retrospective leave to appeal out of time . She submitted that she had dismissed CARDINAL lawyer and retained another one during the appellate proceedings . She had not been aware that the court fee should have been paid .","On DATE the ORG refused to grant the applicant retrospective leave to appeal out of time , considering that she had failed to inform the court about the alleged changes in her legal representation and to demonstrate that she had not been at fault in failing to pay the court fee . The applicant \u2019s new lawyer appealed against that decision .","On DATE ORG upheld the refusal to grant the applicant leave to appeal out of time . It observed that the applicant had failed to show that she had not been at fault in neglecting to pay the court fee . She had informed the first - instance court of her decision to revoke her first lawyer \u2019s power to act on her behalf on DATE . Under the applicable procedural provisions , that was the date on which the revocation had taken effect .","As a result , the first - instance decision on expropriation and compensation became final . On DATE the ORG paid the applicant the outstanding amount of ORG .","On DATE ORG rejected the applicant \u2019s claim by which she sought compensation for the fact that from DATE the municipality had been using her land without a valid expropriation decision . The court considered that the applicant \u2019s claim could not be examined before a civil court and had to be dealt with in administrative proceedings .","By a decision of CARDINAL DATE ORG , acting ex officio , stayed the enforcement of the expropriation decision given on DATE ( see paragraph CARDINAL above ) , having regard to the fact that the applicant had lodged an appeal against it . It referred to section CARDINAL of LAW .","ORG ( PERSON i PERSON ) appealed against that decision . It argued that the mere fact that the applicant had contested the first - instance expropriation and compensation decision could not justify the staying of its enforcement . The construction of the road , which was by then well advanced , should not be delayed as this would entail serious financial loss . They further referred to concrete technical difficulties in the road construction and its logistics , caused by the fact that work which had already started could not be continued on the applicant \u2019s land , such as the impossibility of using that land for transport purposes .","On DATE the President of ORG quashed the contested decision on formal grounds and ordered that the enforcement issue be re - examined .","On DATE ORG , acting ex officio , resumed the enforcement of the expropriation decision , having regard to the judgment of ORG of DATE dismissing the applicant \u2019s appeal against the requisition order ( see paragraph CARDINAL below ) . It observed that following that judgment , the ORG had a legal right to take possession of the land concerned , which was needed for the construction project .","After the first - instance expropriation decision had been given on DATE ( see paragraph CARDINAL above ) and when the applicant \u2019s appeal against it was pending , on DATE the Mayor of ORG issued a requisition order allowing ORG , on the basis of LAW , to take possession of the applicant \u2019s property with a view to starting construction work . He stated that it was necessary in order to proceed with the implementation of the already well - advanced road construction project and to prevent serious social and financial costs that further delay in the realisation of that project would cause .","The applicant appealed against that decision , emphasising that it was unlawful . She argued that no final expropriation decision in respect of her property had been given . The grounds invoked by the Mayor in the requisition order were drafted in very broad terms . The Mayor had failed to indicate , with \u2019s case to impose such a serious restriction on the exercise of her still valid ownership rights . No relevant and sufficient reasons for the occupation of her land had been advanced . In particular , the mere fact that expropriation proceedings had been instituted and construction work was about to start did not warrant the conclusion that such a serious restriction of her ownership rights was justified .","In DATE road construction work commenced on the neighbouring plots . No work had yet been carried out on the applicant \u2019s land . On DATE the applicant applied to ORG for the work on her land to be stopped . On DATE the Inspector informed the applicant that no work had yet been conducted on her land . On DATE on - the - spot inspection , in the presence of the applicant , confirmed that fact .","On DATE the Governor of ORG dismissed the applicant \u2019s appeal against the requisition order of DATE , fully endorsing the arguments relied on by the first - instance authority .","The applicant appealed against that decision before ORG , asking the court to stay the enforcement of the requisition order .","On DATE the court refused the applicant \u2019s request for a stay of the enforcement of the requisition order , holding that to allow her request would defeat the very purpose of the requisition order .","On DATE ORG requested ORG to give priority to the examination of the applicant \u2019s appeal against the requisition order , referring to the fact that the construction work had been seriously delayed because no work could be done on the applicant \u2019s land . The significant investment of public funds , the advanced stage of realisation of the project and the serious disturbance to traffic caused by the construction work called for priority to be given to the case .","By a judgment of DATE ORG dismissed the applicant \u2019s appeal . It observed that the expropriation proceedings had been conducted with a view to modernising the town \u2019s road network , facilitating access to the local airport and reducing the number of road accidents on FAC . This was clearly in the public interest . The fact that the municipality had no final legal title to occupy the applicant \u2019s property was the only remaining obstacle to starting the construction work on that property . It also hindered progress of the construction work carried out on the neighbouring properties . ORG referred to LAW , which expressly provided for requisition orders in the absence of final expropriation decisions if a delay would make the implementation of a public - interest project impossible .","On DATE the company commissioned by the municipality to carry out the work \u2013 the above - mentioned ORG \u2013 applied to ORG for a building permit for road construction work to be carried out on the applicant \u2019s land . In DATE the applicant applied for the proceedings to be stayed , arguing that in the absence of the final decision on expropriation the ORG had no legal right to take possession of her land . On DATE ORG requested ORG to take steps to resolve the difficulties concerning the legal status of the applicant \u2019s land , arguing that construction work on that stretch of road had advanced , with the exception of the QUANTITY planned on the applicant \u2019s land .","The proceedings concerning the application for the building permit were subsequently stayed , the authorities having regard to the fact that in the absence of the expropriation decision the construction company had no right to take possession of the land , and that under the applicable building regulations such a right was an essential prerequisite for requesting a building permit .","On DATE ORG resumed the proceedings , having regard to the judgment of ORG of DATE dismissing the applicant \u2019s appeal against the requisition order ( see paragraph CARDINAL above ) . It observed that that judgment had conferred on the building company the right to take possession of the applicant \u2019s land for construction purposes , even in the absence of a final expropriation decision confirmed by the administrative court .","On DATE ORG issued the building permit as per the application , thereby authorising the construction company to start the construction work on the plots concerned . The applicant appealed against that decision , reiterating that as long as she had not been expropriated no one had the right to build on her land .","On DATE the construction company took possession of the applicant \u2019s land . The construction work started shortly afterwards .","DATE . On DATE the Chief Building Works Inspector dismissed the applicant \u2019s appeal and upheld the building permit . The applicant appealed , reiterating essentially that the building permit could not be given because the expropriation proceedings had not been concluded .","On DATE the construction of the road was officially completed . On DATE a decision authorising use of the road by the public was given .","On DATE ORG dismissed the applicant \u2019s appeal against the building permit . It dismissed the applicant \u2019s arguments that the building company had had no legal right to take possession of her land . It noted that the first - instance expropriation decision had been given on DATE ( see paragraph CARDINAL above ) . On DATE the first - instance requisition order had been given ( see paragraph DATE above ) . The latter order had become final and enforceable following the judgment of DATE ( see paragraph CARDINAL above ) . The court held that that judgment had to be deemed to have conferred on the building company the right to possess the land within the meaning of the building regulations .","The court stressed that requisition orders were necessary for public - interest works to be able to go ahead where expropriation proceedings were still pending but the works should nevertheless be carried out to prevent certain negative consequences . Such a decision did not infringe the owner \u2019s rights although it did limit them temporarily .","A requisition order should be assessed in the context of the expropriation proceedings seen as a whole . Such an order was usually given after the first - instance expropriation decision had been issued . The applicable legal regulations expressly allowed for such orders to be given . The court referred to LAW and to section CARDINAL of ORG Expropriation and requisition orders were CARDINAL different legal institutions . They conferred different rights on the public authorities . A requisition order was clearly of a temporary character . It was obvious that its legal effects differed from those produced by a decision on expropriation . However , it conferred on the authorities a right to take possession of the land and to use it for public - benefit purposes . By introducing a requisition order into ORG the legislature had intended to avoid situations where expropriation could be blocked as a result of appeals lodged by the affected parties .","In the court \u2019s opinion , if one accepted the applicant \u2019s argument that the requisition order did not confer a right to take possession of the land for building purposes , the very purpose of the requisition order would be defeated .","A requisition order could not per se be regarded as a violation of ownership . It did not replace the expropriation decision and did not deprive the owner of his or her ownership right ; at most it limited it temporarily until the termination of the expropriation proceedings . This was justified under LAW ( see paragraph CARDINAL below ) . The court recalled that the right of property was not an absolute right .","NORP The court observed that the grant of the building permit did not infringe the law despite the exceptional character of the applicant \u2019s situation and the pending expropriation proceedings . The applicant \u2019s case demonstrated that , in practice , requisition orders were necessary . In certain cases , it would have been impossible to realise the public - benefit purposes for which expropriation proceedings had been instituted without having recourse to requisition orders .","DATE the LAW provides :","\u201c CARDINAL . GPE shall protect ownership and the right of succession .","Expropriation shall be allowed only in the public interest and against payment of just compensation . \u201d","DATE LAW reads :","\u201c Freedom of the person shall receive legal protection .","Everyone shall respect the freedoms and rights of others . No one shall be compelled to do that which is not required by law .","Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . \u201d","Article CARDINAL of the LAW provides :","\u201c CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .","Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .","The right of ownership may be limited only by means of a statute and only to the extent that it does not violate the essence of such right . \u201d","On DATE LAW of DATE ( LOC o gospodarce nieruchomo\u015bciami \u2013 \u201c LAW \u201d ) entered into force . Under LAW of that Act expropriation consists in the removal , by way of an administrative decision , of ownership rights or other rights in rem . Expropriation can be carried out where public - interest aims can not be achieved without restriction of those rights and where it is impossible to acquire those rights by way of a civil law contract .","Under section CARDINAL an expropriation can be carried out only for the benefit of ORG or the local municipality .","Section CARDINAL provides that in cases defined by LAW ( see paragraph DATE below ) the administrative authority is empowered to issue a requisition order allowing an entity carrying out works for the public benefit to enter and take possession of land in respect of which a decision on expropriation has been given , if a delay would make realisation of the public - benefit works impossible . A clause of immediate enforceability ( rygor natychmiastowej wykonalno\u015bci ) may be issued in respect of such an order .","In accordance with section CARDINAL \u00a7 CARDINAL of the LAW , expropriation is to be carried out against payment of compensation corresponding to the value of the property right concerned . Under section CARDINAL \u00a7 CARDINAL of the LAW , the amount of compensation is fixed regard being had to the status and value of the property on DATE on which the expropriation decision was given . The value of the property is estimated on the basis of an opinion prepared by a certified expert .","Section CARDINAL provides for the possibility of awarding the expropriated owner a replacement property if he or she so agrees .","Pursuant to section CARDINAL , compensation must be paid within DATE from the date on which the expropriation decision becomes subject to enforcement .","Section CARDINAL provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed . The following criteria are to be taken into consideration when establishing the market value of the property : its type , location , the use to which it has been put , the existence of any technical infrastructure on the property , its overall state and current prices of properties in the municipality .","In situations specified by LAW , local ORG administration can authorise an entity charged with the implementation of a public - interest project to occupy the property concerned immediately if a delay would render the implementation of the project impossible .","DATE . Article CARDINAL of the Code provides for an administrative decision to be rendered immediately enforceable , even if further appeal against it is available , when this is necessary for the protection of life or limb , or for the protection of the national economy against serious damage , or for the protection of other societal interests ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59096","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2000,"docname":"CASE OF JABLONSKI v. POLAND","importance":3,"conclusion":"Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Georg Ress","text":["On TIME the applicant went to a doctor , asking him to come to the aid of J.C. He alleged that the latter had been seriously battered by unknown persons . J.C. , who suffered serious injuries to his head , was immediately taken to hospital . His life was saved . On DATE ORG ( Prokurator Wojew\u00f3dzki ) charged the applicant with aggravated theft , armed robbery and attempted homicide , and detained him on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature . The investigation was completed on DATE .","Shortly after DATE , the applicant asked for an order referring the case for a further investigation . In particular , he asked for evidence to be obtained from certain witnesses . The prosecutor dismissed his request for witnesses to be called but ordered that an expert report be obtained from psychiatrists in order to ascertain the applicant \u2019s mental state .","On DATE ORG lodged a bill of indictment with ORG ( S\u0105d Wojew\u00f3dzki ) . The applicant was indicted on charges of attempted homicide , armed robbery and aggravated theft .","From DATE until DATE the applicant , who was at the material time detained in FAC , was on hunger strike . On DATE he apparently intentionally injured his left hand .","On DATE ORG rejected the applicant \u2019s request for release made on an unknown date . The court held that the reasons originally given for his detention , that is to say , the reasonable suspicion that he had committed the offences with which he had been charged and the serious nature of those offences , were still valid . On the other hand , the court found no reason to release the applicant on health grounds or on any of the grounds listed in LAW ( see also paragraph CARDINAL in fine below ) because it considered that the applicant \u2019s continued hunger strike was aimed at compelling the court to make a \u201c favourable decision \u201d on his detention .","NORP On DATE the applicant was admitted to the hospital of ORG . He received treatment until DATE . An entry in the relevant medical record made on DATE read , in so far as relevant :","\u201c [ the applicant ] was admitted to our hospital in a state of extreme exhaustion ... , he complained about general weakness , pain in his chest and heart palpitations . Subsequent tests showed that there was an extremely low level of haemoglobin in his blood ... [ PERCENT and PERCENT according to the tests ] ... resulting from a chronic deficiency of iron and vitamins . During the treatment he was given CARDINAL transfusions and iron compounds were administered ... as a result his condition improved ... Recommendations : good food and further treatment . From the medical point of view , he should not now be kept in prison . \u201d","On DATE the applicant was taken to and redetained in FAC . He was placed in a ward for internal diseases , where he remained until DATE . He was diagnosed as having anaemia and gastritis . Since the applicant had not consented to any further medical tests and had refused to take medicaments , he was again placed in a prison ward .","In the meantime , the trial court had listed hearings for DATE , DATE , DATE and DATE but had cancelled all of them on the ground that the applicant had been on hunger strike . On DATE the trial was adjourned because the applicant had refused to leave his cell .","On DATE the applicant wrote a letter to the Minister of ORG , requesting that he release him in view of the very bad state of his health . That letter was deemed to be an application for release under LAW of LAW , referred to ORG and dismissed by that court on DATE . The court found that the applicant \u2019s detention should continue because there was a reasonable suspicion that he had committed the serious offences with which he had been charged . The court agreed that from the medical point of view the applicant should not be kept in prison . It stressed , however , that his poor health resulted from his behaviour , especially his hunger strike , and therefore refused to release him .","On DATE , on an appeal by the applicant , ORG ( S\u0105d Apelacyjny ) upheld that decision and the grounds given for it .","On DATE the applicant inserted several pieces of metal into his right eye . On DATE he inserted pieces of metal into his left eye . On DATE he was examined by a psychiatrist who concluded that those acts of self - harm were a form of his protest against the prolongation of the criminal proceedings against him and his detention . Later , the applicant was placed in an ophthalmic ward of ORG where he received treatment from DATE to DATE . After that treatment , CARDINAL pieces of metal were left in the applicant \u2019s eyes .","On DATE ORG dismissed a subsequent application for release , originally addressed by the applicant to ORG ( Krajowa Rada S\u0105downictwa ) and referred by the ORG to the trial court . The court considered that the applicant should be held in detention for the following reasons :","\u201c ... In the light of documentary evidence , it is beyond any dispute that the state of [ the applicant \u2019s ] health is not the best one . However , he himself is responsible for that because he has brought himself [ to this state ] by his DATE long hunger - strikes , acts of self - harm and his further refusal to undergo medical treatment . ...","The court can not lift the detention order because of the nature of the offences charged , the serious social danger created by them and the fact that [ the applicant ] is tried as a recidivist within the meaning of LAW , militate against it .","It must , however , be noted that the state of [ the applicant \u2019s ] health , although not a good one , does not constitute a danger to his life within the meaning of LAW because he is under medical care and [ his condition ] has resulted from his own acts . ... \u201d","On an unknown date in DATE the applicant again asked ORG to release him on health grounds . The application was dismissed on DATE . On DATE the applicant made a further application for release , submitting that , in the meantime , he had received a letter from a civil hospital in GPE confirming that he could be admitted to that hospital in order to undergo ophthalmic treatment . The application was dismissed at first instance on DATE and , on appeal , by ORG , on DATE . Both courts held that there was no valid reason to release the applicant as his condition , even though serious , had been aggravated by the injuries which he had inflicted on himself . The courts also relied on the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature .","On DATE the applicant asked ORG to obtain evidence from an expert in ophthalmology . He maintained that he was suffering from an unbearably severe pain in his eyes . The court referred the matter to the authorities of FAC . On DATE the Deputy Governor dealt with that application and refused to call an ophthalmologist on the grounds that in the opinion of the doctors who had previously examined the applicant there had been no need to treat him in a civil hospital and that the Chief Prison Doctor of ORG did not consider it appropriate to call such an expert .","On DATE a hearing was to take place but was cancelled since , in the meantime , the applicant had inflicted certain unspecified injuries on himself . On DATE ORG cancelled the next hearing because the applicant , when leaving his cell had injured himself by hitting his head against a wall . He was then taken to ORG and examined by a neurologist .","On DATE the court adjourned the trial hearing because it found that the applicant had again inflicted injuries on himself ( he had injected saliva into his leg and had an abscess and boil on his knee ) .","On DATE the trial was adjourned because the applicant had taken an overdose of an unspecified medicine .","DATE the applicant received treatment in FAC . In view of that , the court cancelled a hearing listed for DATE .","Subsequently , on an unknown date , the applicant swallowed CARDINAL metal rods and CARDINAL pieces of wire . He did not consent to undergo an operation in the prison hospital . Since he was not fit to be brought to trial , the court cancelled a hearing fixed for DATE .","On DATE the court asked the Governor of FAC about the applicant \u2019s health and when the applicant would be transferred to FAC . On DATE the Director of ORG replied that the applicant had repeatedly inflicted injuries on himself ( that is to say , he had swallowed pieces of metal ) and had refused to undergo an operation . It was therefore impossible for the prison services to transfer him to FAC ( Bia\u0142ystok is QUANTITY distant from GPE ) .","On DATE the trial court again asked the authorities of FAC about the state of the applicant \u2019s health . The Director of ORG replied on DATE that the applicant should stay in the hospital because he had pieces of metal both in his eyes and in his alimentary canal .","Later , ORG asked ORG ( PERSON ) to transfer the applicant \u2019s case to another regional court , a court closer to the prison in which the applicant was being held in custody . ORG rejected that request on CARDINAL DATE .","On DATE the Deputy Governor of ORG informed ORG that the applicant was still unfit for a transfer because he had again swallowed a piece of metal .","On DATE the court asked the authorities of FAC about the state of the applicant \u2019s health . The Director of ORG replied on DATE that the applicant did not have to undergo on operation on his eyes but that it was recommended that he undergo an operation on his stomach .","On DATE ORG dismissed a subsequent application for release made by the applicant on an unspecified date . In its decision , the court relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature . Finding that there were no special circumstances that might justify releasing him on health grounds , the court also took into account a medical certificate which stated that the applicant could receive medical treatment in prison .","In the meantime , at DATE , the applicant had complained to the prison authorities about various ailments , in particular a cyst in his kidney and urinary problems . Several ultrasound examinations carried out at that time showed that the applicant had a cyst of a diameter of QUANTITY in his kidney . He refused to undergo a kidney operation in the urological ward of ORG and requested to be released so as to enable him to receive medical treatment in a civil hospital .","On DATE ORG asked the Governor of ORG whether the applicant could be transferred to FAC . The Governor replied on DATE . He stated that prison doctors considered that the applicant was unfit for a transfer .","On DATE the applicant made an application for release to ORG .","On DATE ORG decided to apply to ORG for the applicant \u2019s detention on remand to be prolonged until DATE . That application was made in view of the fact that an amendment to LAW ( setting maximum statutory time - limits for detention on remand ) was to take effect on DATE ( see paragraph CARDINAL below ) and at the time the applicant \u2019s detention had already exceeded the relevant time - limit . In that application , the court relied on the following , principal reasons :","\u201c The trial was set for DATE but it did not take place because the accused went on hunger strike for DATE . When the accused finished his hunger strike , he deliberately inflicted injuries on himself in order to compel [ the court ] to make a favourable decision to vary the preventive measure imposed on him . ...","That made it impossible for that court to continue , or even to start , the trial . In view of the state of his health , a state resulting from his own behaviour , [ the applicant ] was on several occasions examined by doctors of various specialities and was admitted to hospital for DATE . It did not ( and does not ) emerge from the expert opinions that his state would endanger his life or health , especially as [ the applicant ] is under permanent medical care . At present , he is held in FAC .","For these reasons the application for his detention to be prolonged is justified . His detention should be prolonged until DATE because , given his acts of self - harm , it is not known when the accused will be brought to trial . \u201d","Since the relevant amendment did not come into force until DATE , that application was never lodged with ORG .","On DATE ORG transferred the applicant \u2019s application for release of DATE to ORG . On DATE the President of ORG transferred it to the Chief Judge of ORG of that court .","On DATE the panel of CARDINAL judges , sitting as ORG dismissed that application , holding that there were no circumstances concerning the applicant \u2019s health which might militate in favour of his release and that the bad state of his health had been caused entirely by his own conduct . The court considered that the applicant wanted to compel it to \u201c make a favourable decision on his detention \u201d and that the \u201c impossibility of bringing him to trial had diminished the chances of resolving his complaints \u201d .","In the meantime , on an unknown date , the applicant had complained to ORG about the length of his detention , which had already exceeded DATE . On DATE his complaint was referred to ORG . On DATE the Vice President of that court replied to the complaint . He stated that hearings in the applicant \u2019s case had been cancelled CARDINAL times because the applicant had gone on hunger strike and then on the ground that he had inflicted injuries on himself . He also stressed that there had been no indication that the applicant should have been released on health grounds because he was , and had been , under medical care in prison .","On DATE the court asked the authorities of FAC about the applicant \u2019s health . The Director of ORG replied on DATE . He stated that the applicant had some of the metal objects he had swallowed in his stomach but he had refused to undergo an operation in the prison hospital . In the Director \u2019s opinion , the applicant was fit to participate in his trial but unfit to be transferred to Bia\u0142ystok .","Later , the applicant asked ORG to release him in view of his state of health . That application was dismissed on DATE . The applicant appealed against the refusal , arguing that his detention on remand had meanwhile exceeded DATE and that his state of health was desperately bad .","On DATE ORG dismissed that appeal , finding that even though the applicant had been held in custody for DATE , the prolongation of his detention had been attributable to his behaviour alone . The court considered that the grounds originally given for his detention were still valid . It pointed out that the further course of the proceedings exclusively depended on the applicant \u2019s behaviour . It suggested that a change in the applicant \u2019s attitude would result in the immediate examination of his case and that such a change might in turn have resulted in the court \u2019s \u201c altering its view on whether the detention should be continued \u201d .","On DATE the court asked the authorities of ORG whether the applicant could be transferred to Bia\u0142ystok . On DATE the Director of ORG informed the court of , inter alia , the following :","\u201c ... [ the applicant ] repeatedly inflicts injuries on himself . The last instance of such behaviour took place on DATE . For that reason , he is unfit for a transfer . He can participate in his trial . \u201d","On an unknown date in DATE or DATE the applicant made a subsequent application for release . On DATE ORG dismissed it in view of the high probability that he had committed the offences with which he had been charged and their serious nature . The court also found no circumstances militating in favour of releasing the applicant on health grounds , as defined in LAW . In that context , it pointed out that the applicant \u2019s health depended on himself , especially as its current state had resulted from his hunger strike and self - inflicted injuries . Finally , the court stressed that it emerged from medical evidence that his continued detention did not constitute a danger to his life or health .","On DATE the court asked the authorities of FAC whether the applicant could be transferred to FAC . They replied on DATE , stating that the applicant had refused to undergo an operation on his stomach . It was recommended that he be detained in a prison hospital ward . No obstacles to transferring the applicant to Bia\u0142ystok were mentioned .","On DATE ORG requested ORG to prolong the applicant \u2019s detention on remand until DATE in view of the fact that he had attempted to obstruct the proper conduct of the proceedings . The court also stated :","\u201c ... detention should be prolonged until DATE ... since the accused has inflicted injuries on himself and therefore , it is not known when he will be fit to be brought to trial . \u201d","On DATE ORG , sitting in camera , prolonged the applicant \u2019s detention until DATE , finding that the applicant had in an exceptional manner obstructed the proper conduct of the proceedings and had intentionally contributed to their length . The court also held that it was not necessary to prolong his detention until DATE and that by DATE ORG should be able to order an additional medical examination of the applicant , to list hearings and to give judgment . On DATE a copy of the decision of ORG was served on the applicant .","On DATE the applicant complained to the Minister of Justice about the length of his detention and the conduct of the proceedings in his case . This complaint was transferred to ORG and , on DATE , the President of that court replied to it . He found that there had been no irregularities in the conduct of the proceedings . He stated that all the CARDINAL hearings listed in the period from DATE to DATE had been cancelled because the applicant had inflicted injuries on himself .","On an unknown date \u2013 apparently in DATE \u2013 the applicant again requested his release on health grounds . On DATE ORG dismissed his application , holding that there was a reasonable suspicion that he had committed the offences in question and that the need to ensure the proper conduct of the proceedings militated against his release . The court also held that there was no reason to release the applicant on health grounds because the ailments from which he suffered did not constitute a danger to his life or health and had resulted from his own deliberate acts of self - harm .","DATE . On DATE , on the applicant \u2019s appeal , ORG upheld that decision and held , inter alia :","\u201c It is true that the accused is sick , although most of his ailments result from self - inflicted injuries . For that reason he is under constant medical observation in prison . He also consults doctors . The prison authorities have not indicated that his condition worsened so significantly as to result in his detention in the prison hospital being a danger to him .","As to the second argument adduced by the accused , an argument which in reality amounts to his objection to evidence [ against him ] , it has to be noted that the trial court has at its disposal evidence gathered by the prosecution but has been unable to scrutinise it because the accused has been obstructing the conduct of the trial . It would therefore be in the accused \u2019s best interest to endeavour to have his case heard . ... \u201d","On DATE the applicant was transferred to FAC . On DATE ORG listed a hearing for DATE ; however , that hearing was adjourned to DATE . On DATE the trial was adjourned as most of the witnesses and the victim had failed to appear .","During the hearings of CARDINAL and DATE ORG heard evidence from witnesses and dismissed the applicant \u2019s request for further evidence to be obtained . On DATE the court gave judgment . It convicted the applicant of aggravated theft and attempted homicide and sentenced him to CARDINAL years\u2019 imprisonment , deprivation of his civil rights for DATE and a fine of MONEY .","The applicant appealed . Subsequently , on an unspecified date , he challenged LAW and J.Z .- L. , CARDINAL judges of ORG assigned to sit on the appeal panel , submitting that both of them had previously dealt with his applications for release and that they did not , therefore , offer sufficient guarantees of impartiality . His challenge was dismissed by ORG on DATE as being ill - founded .","On DATE the court held an appellate hearing and gave judgment dismissing the applicant \u2019s appeal .","On DATE a copy of the judgment of ORG was served on the applicant . On DATE he filed a notice of cassation appeal , requesting the court to serve the statement of the reasons for the judgment on him . He submitted it to the authorities of FAC on DATE .","On DATE ORG rejected the applicant \u2019s notice of cassation appeal because he had lodged it outside the DATE time - limit provided for by LAW .","On DATE the applicant requested the Minister of ORG to lodge a cassation appeal on his behalf . The request was dismissed on CARDINAL DATE . Later , the applicant \u2013 also unsuccessfully DATE asked the Ombudsman ( PERSON ) to lodge a cassation appeal on his behalf . That application was rejected on DATE .","During the entire period of the applicant \u2019s detention the NORP prison authorities kept detailed medical records concerning his state of health . His records contained , among other things , entries relating to the injuries that he inflicted on himself .","An entry made on DATE contains a doctor \u2019s note , which read , in so far as relevant :","\u201c Objects in [ the ] stomach ? \u201d","An entry made on DATE read :","\u201c refusal to undergo an X - ray examination ; no confirmation as to the objects in his stomach . \u201d","A doctor \u2019s note of DATE read , in so far as relevant :","\u201c Complaints by a detainee , previous ailments and operations : objects in eyes : no complaints at present ; objects in his stomach : on DATE and DATE [ the applicant ] refused to undergo an NORP - ray examination ; on DATE [ he ] claimed that there were no further objects . ... I administer a further X - ray examination . [ He ] complains about a pain in his stomach . ... Psychiatric examination of CARDINAL DATE disclosed an abnormal personality ...","Diagnosis : objects in eyes ; [ as regards the ] objects in the stomach , [ to date ] in the absence of results of the X - ray examination there is no confirmation that , as [ the applicant ] states , there are no such objects ... General condition : good ; some peritoneal symptoms ... Conclusions : [ the applicant ] can be detained in prison . Doctor [ name and signature illegible ] . \u201d","A subsequent X - ray examination made in DATE did not disclose any objects in the applicant \u2019s stomach ; it confirmed a diaphragm hernia .","At the material time the rules governing detention on remand were contained in LAW of the Law of DATE \u2013 Code of Criminal Procedure ( Kodeks post\u0119powania karnego ) \u2013 entitled \u201c Preventive measures \u201d ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the \u201c GPE Procedure \u201d ) , which entered into force on DATE .","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 . This provision read :","\u201c 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 . \u201d","Article CARDINAL \u00a7 CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , stipulated :","\u201c 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 the 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 .","... \u201d","On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :","\u201c ( 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 ] . \u201d","Paragraph CARDINAL of Article CARDINAL provided :","\u201c 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 CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to ensure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . \u201d","The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL \u00a7 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 \u00a7 CARDINAL provided :","\u201c 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 . \u201d","Article CARDINAL stated :","\u201c 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 . \u201d","The provisions for \u201c mandatory detention \u201d ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the PERSON of DATE on Amendments to LAW and Other Criminal Statutes .","Finally , Article CARDINAL stipulated :","\u201c If there are no special reasons to the contrary , detention on remand should be quashed , in particular when :","( 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 . \u201d","Until DATE , i.e. the date on which the relevant provisions of a new Law of DATE on LAW to LAW and Other Criminal Statutes entered into force , the law did not set out any time - limits concerning 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 , insofar as relevant , provides :","\u201c 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 the 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 . \u201d","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 :","\u201c ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... \u201d","The Supreme Court\u2019 decision on an application under LAW CARDINAL constituted a separate legal basis for continued detention . No appeal lay in law against such a decision .","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 under LAW was treated as a basis for the continued detention .","As from DATE , a party to criminal proceedings could lodge a cassation appeal ( kasacja ) with ORG against any final decision of an appellate court which had terminated the proceedings .","Under LAW of LAW , the court which gave the decision to be appealed against was competent to decide whether the formal requirements of a cassation appeal had been complied with . If an accused \u2019s appeal had not been filed and signed by a lawyer , it had to be rejected . If an appeal had complied with the formal requirements , the case was forwarded to ORG . According to paragraph CARDINAL of Article CARDINAL , if ORG found that the appeal was inadmissible , it gave a decision on \u201c not taking cognisance of the merits of the cassation appeal \u201d ( postanowienie o pozostawieniu kasacji bez rozpoznania ) ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","5-4","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77386","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2006,"docname":"KV\u011aTO\u0147OV\u00c1 v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr I. Chytil , a lawyer practising in GPE .","The applicant \u2019s parents owned a family house and CARDINAL lands located in GPE . In DATE the applicant \u2019s father died . The applicant and her mother became his legal successors .","In DATE the applicant and her mother were convicted in absentia of deserting the Republic . The courts imposed a term of imprisonment and ordered the confiscation of all their property . In DATE the ORG ( st\u00e1tn\u00ed not\u00e1\u0159stv\u00ed ) determined the late father \u2019s estate , holding that the applicant and her mother inherited the whole estate but that , bearing in mind their criminal conviction , it should be forfeited for the benefit of the ORG .","On DATE the confiscated property was sold by the ORG to PERSON and PERSON , with an agreement giving them the right to make personal use of the lands attached to the house . According to the applicant , the purchase contract contained a number of legal inaccuracies which made it null and void . Actually , the ORG was represented by the former ORG ( okresn\u00ed n\u00e1rodn\u00ed v\u00fdbor ) which at the material time had CARDINAL of the property at its disposal , the rights relating to DATE being transferred to it on DATE . Moreover , the real estate appraisal used for the purposes of the purchase was , contrary to the law , older than one year , the property at issue was not clearly specified in the purchase contract , the identity of the contractual parties was not verified and the person acting on behalf of ORG was not clearly indicated . In addition , the new ORG right to make personal use of the lands attached to the house was approved by ORG on DATE , so before the transfer of the administration rights regarding the property .","On DATE the applicant \u2019s mother died . The applicant became her legal successor .","On DATE and DATE respectively , ORG declared that , pursuant to section CARDINAL of LAW , the applicant \u2019s and her mother \u2019s convictions and all ancillary decisions had been automatically quashed with retrospective effect .","On an unspecified date in DATE the applicant initiated restitution proceedings against Mr and PERSON pursuant to ORG . However , the courts did not grant her restitution claims finding that the purchase contract had not been concluded in breach of the regulations then in force and that the new owners had not enjoyed an unlawful advantage .","After the death of PERSON and PERSON , their sons became the owners of the property .","In DATE the applicant sought to recover the property in issue by means of a civil action brought against the Mr and PERSON sons , alleging the nullity of the purchase contract .","In a judgment of DATE the ORG dismissed the applicant \u2019s action stating , inter alia :","\u201c In a judgment no . \u00daS CARDINAL\/CARDINAL of DATE the Plenary of ORG held that judicial decisions whereby decisions concerning the confiscation of property had been quashed [ pursuant to LAW ] did not form a basis on which the ownership rights could be renewed . The applicant claimed the restitution ... under [ LAW ] , but was unsuccessful . Having regard to the fact that [ she ] based her current arguments mainly on her incorrect legal opinion concerning the effects of the nullity of the confiscation decision , her [ civil ] action [ is ] not substantiated .","[ I]t is not decisive whether the purchase contract ... is valid or not . ... [ T]he question of [ its ] validity or the nullity is more specific than the criteria laid down in the Extra - Judicial Rehabilitation Act for natural persons obliged to restore immovable property to a restitution claimant .... [ The court examined in the [ previous ] restitution proceedings whether the new owners could have acquired the property contrary to the law then in force ... or on the basis of any unlawful advantage , and found that it was not the case . ] The court , therefore , did not examine in detail [ the applicant \u2019s arguments concerning ] the alleged nullity of the purchase contract . \u201d","On DATE the ORG ( krajsk\u00fd soud ) upheld the first instance judgment .","The applicant \u2019s subsequent appeal on points of law ( dovol\u00e1n\u00ed ) was dismissed by ORG ( PERSON ) on DATE , the court stating , in particular :","\u201c [ N]either the appellate court nor the court of first instance erred in applying [ the provisions of LAW and LAW ] ; they rightly considered their interrelationship and took account of the [ previous ] restitution proceedings closed upon a final and conclusive judgment .","The applicant based her claims on the substantially same arguments which she had used in the previous restitution proceedings , emphasising the [ alleged ] nullity of the purchase contract ... [ However ] it is inadmissible to circumvent the restitution law by applying the general civil law , in case that the [ previous ] restitution action failed . ... \u201d","ORG concluded that the applicant \u2019s appeal on points of law did not challenge a decision which would give rise to a question of crucial legal importance as provided for in section CARDINAL(CARDINAL)(c ) of the Code of Civil Proceedings .","The applicant challenged the lower courts\u2019 legal opinions before ORG ( \u00dastavn\u00ed soud ) maintaining that the courts had failed to examine the validity of the purchase contract . She alleged , in this respect , a violation of her right to judicial protection under LAW ( Listina z\u00e1kladn\u00edch pr\u00e1v a svobod ) and her property rights guaranteed by LAW .","On DATE ORG rejected the applicant \u2019s constitutional appeal ( \u00fastavn\u00ed st\u00ed\u017enost ) finding that the procedural steps taken by the lower courts and their interpretation of the legislation did not infringe the applicant \u2019s fundamental rights guaranteed by the constitutional law or international treaties .","LAW provides , inter alia , that everyone has the right to own property . All ORG property rights are equal in the eyes of the law and enjoy the same legal protection . The right to inherit is guaranteed .","Under LAW anybody who claims that his or her rights have been violated by a decision of a public administration organ may turn to a court for a review of the legality of such decision , unless the law provides differently . However , review of decisions affecting the fundamental rights and freedoms listed in the LAW may not be excluded from the jurisdiction of courts .","Section CARDINAL states that the purpose of the LAW is to provide for the quashing of convictions that are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the LAW and guaranteed by international treaties , and to ensure the social and economic rehabilitation of persons so convicted .","Section CARDINAL provides that all convictions from DATE to CARDINAL DATE that contravened those principles and related to events occurring after DATE are to be quashed with retrospective effect , together with any ancillary decisions . Courts are to examine of their own motion all matters relating to the rehabilitation of convicted persons .","Section CARDINAL ) provides that the implementing conditions for claims arising from quashed confiscation decisions , and also the method of redress and the scope of such claims , are to be laid down in a special law .","Section CARDINAL provides that the purpose of the LAW is to mitigate the effects of certain wrongs committed between CARDINAL DATE and DATE ( \u201c the period concerned \u201d ) which were incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG and LAW . The LAW also lays down the conditions for lodging claims arising from quashed confiscation decisions , and also the method of redress and the scope of such claims .","Section CARDINAL provides that infringements of property rights which occurred during the period concerned are to be redressed either by restitution of property or by pecuniary compensation .","Section CARDINAL requires the ORG and\/or any legal entity in possession of confiscated property on the date on which the LAW came into force to return the property . LAW provides that any natural person who acquired property from the ORG unlawfully or by means of an unlawful advantage is likewise required to return the property .","ORG ) provides that any person who has been rehabilitated in accordance with LAW no . CARDINAL\/CARDINAL is entitled to claim restitution provided that he or she satisfies the conditions laid down in section CARDINAL(CARDINAL ) .","Section CARDINAL(CARDINAL ) provides that any legal entity within the meaning of section CARDINAL(CARDINAL ) and any natural person within the meaning of section CARDINAL(CARDINAL ) must return confiscated property acquired from the ORG where the ORG itself obtained it as a result of the conviction of the original owners ; the central administrative authorities of the Republic are likewise required to return any confiscated property .","Section CARDINAL ) provides that an appeal on points of law lay against appellate court judgments and decisions upholding first instance decisions in which the court of first instance decided differently from its previous meritorious decision , having been bound by the legal opinion of the appellate court which had quashed the previous decision at first instance .","Under section CARDINAL(c ) an appeal on points of law lay also against appellate court judgments and decisions upholding first instance decisions if such an appeal is not admissible under paragraph b ) and if the court dealing with the appeal on points of law finds that the challenged decision gives rise to a question of crucial legal importance .","In this judgment ORG held that judicial decisions whereby decisions concerning the confiscation of property had been quashed pursuant to LAW did not form a basis on which anyone thus rehabilitated was entitled to be entered in the land register as the owner . It held that such decisions did not restore previous ownership , since LAW ) of LAW provided that the conditions for implementing that Act were laid down in LAW .","In this decision ORG held , in particular , that the provisions of the Extra - Judicial Rehabilitation Act constitute a lex specialis in relation to the general provisions of LAW . In restitution cases , it is therefore not possible to seek judicial protection under the general provisions of LAW ( e.g. by means of an action for recovery ) , but only by a special way provided for in the restitution legislation .","In this decision ORG admitted that the entire removal of all wrongs committed by the former communist regime was not possible . The legislator opted , therefore , for legal means aiming to mitigate \u201c the effects of certain wrongs \u201d . For these purposes , it determined the \u201c restitution border \u201d ( the period between DATE and DATE in which the wrongs had taken place ) and fixed the conditions and the way to pursue to claim restitution of property . If other parallel procedural ways were accepted to be pursued under the general legal provisions the special restitution law would lose its sense .","In this decision ORG stated that the restitution legislation demonstrates the legislator \u2019s will to contribute to the mitigation of huge wrongs which were committed in the decisive period , i.e. DATE . This legislation , including LAW is not based on the conception of declaration of the nullity of decisions , acts and legal actions . It indicates the special way to pursue for claiming restitution .","In this decision ORG recalled its legal opinion expressed in its decision no . CARDINAL Cdo CARDINAL\/CARDINAL of DATE stating , moreover , that according to the established national case - law , the restitution legislation is a lex specialis in relation to the general provisions of LAW . Actually , if the restitution law is applicable in a particular case , it is inadmissible to circumvent it and , in case that the restitution action failed , to base the restitution claims on the general legal provisions . This would create a situation of legal uncertainty of the parties to the legal acts which were challengeable under the restitution law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101853","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2010,"docname":"CASE OF GREENS AND M.T. v. THE UNITED KINGDOM","importance":1,"conclusion":"Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - finding of violation sufficient","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The first applicant , Mr NORP , was serving a determinate sentence of imprisonment at FAC at the time his application was lodged with the ORG . He was eligible for release on parole from DATE . It is not known whether he has been released on parole . The second applicant , PERSON , is currently serving a determinate sentence of imprisonment at FAC . According to information provided by the Government , he is scheduled to be released in DATE .","On DATE the applicants posted voter registration forms to ORG ( \u201c ERO \u201d ) for ORG . They sought registration on the electoral register at their address in FAC .","On DATE , the ERO replied referring to previous applications for registration which were refused in DATE under sections CARDINAL and CARDINAL of the Representation of the People Act DATE , as amended , ( see paragraph CARDINAL and DATE below ) on the basis of the applicants ' status as convicted persons currently detained . The ERO requested clarification of whether there had been a change in circumstances in the applicants ' cases .","On DATE the applicants wrote to the ERO arguing that following the ORG 's decision in ORG v. GPE ( no . CARDINAL ) [ ORG ] , no . CARDINAL\/CARDINAL , ORG CARDINALIX , and the declaration of incompatibility made by ORG in the case of PERSON v. PERSON ( see paragraphs CARDINAL below ) , the ERO was obliged to add their names to the electoral register .","On DATE , the ERO refused the applicants ' registration applications on the basis of their status as convicted persons detained in a penal institution .","NORP By letter of CARDINAL DATE the applicants informed the ERO of their wish to appeal to ORG against the refusal .","On DATE the Sheriff considered the applicants ' appeals together with appeals in a number of other similar cases and ordered written representations to be lodged .","On DATE the applicants wrote to the court summarising their position . They provided further submissions on DATE . The applicants alleged that legal aid was not available for the proceedings and they therefore represented themselves .","On DATE the applicants ' appeals were refused .","On DATE another serving prisoner whose appeal was also refused on DATE , PERSON , applied to ORG to request that it state a case for the opinion of ORG ( see paragraph CARDINAL below ) . On DATE , the ORG refused to state a case . PERSON subsequently applied to ORG for an order requiring the Sheriff to state a case , on the ground that the Sheriff had erred in law in refusing to do so . The most recent information available to the ORG was that those proceedings were pending . It is not clear whether that remains the case .","On DATE , elections to ORG took place . The applicants were ineligible to vote .","On DATE a general election took place in GPE . The applicants were ineligible to vote .","Section CARDINAL of the Representation of the People Act DATE ( \u201c the DATE LAW ) provides :","\u201c ( CARDINAL ) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election . \u201d","The disqualification does not apply to persons imprisoned for contempt of court ( section CARDINAL(CARDINAL)(a ) ) or to those imprisoned only for default in , for example , paying a fine ( section CARDINAL(CARDINAL)(c ) ) .","Section CARDINAL of the DATE Act provides :","\u201c ( CARDINAL ) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he\u2013","( a ) is resident in the constituency or that part of it ;","( b ) is not subject to any legal incapacity to vote ( age apart ) ;","...","( CARDINAL ) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he\u2013","( a ) is resident in that area ;","( b ) is not subject to any legal incapacity to vote ( age apart ) ;","... \u201d","Sections CARDINAL set out that there is a right of appeal against a decision of the registration officer . In GPE , a further appeal lies on any point of law from a decision of the Sheriff to a court of CARDINAL judges of ORG ( known as the \u201c Registration Appeal Court \u201d ) .","Section CARDINAL(CARDINAL ) of ORG ( \u201c the DATE Act \u201d ) provides that a person is entitled to vote at an election to ORG if he is within any of subsections ( CARDINAL ) to ( CARDINAL ) of section CARDINAL . These subsections provide , in so far as relevant , as follows :","\u201c ( CARDINAL ) A person is within this subsection if on DATE of the poll he would be entitled to vote as an elector at a parliamentary election ...","...","( CARDINAL ) A person is within this subsection if he is entitled to vote in the electoral region by virtue of ORG Regulations DATE ( NORP CARDINAL\/CARDINAL ) ( citizens of ORG other than GPE and GPE citizens ) . \u201d","Section CARDINAL of LAW DATE ( \u201c LAW \u201d ) provides as follows :","\u201c ( CARDINAL ) So far as it is possible to do so , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights .","( CARDINAL ) This section-","( a ) applies to primary legislation and subordinate legislation whenever enacted ;","... \u201d","Section CARDINAL of the LAW provides :","\u201c ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .","( CARDINAL ) NORP If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility .","... \u201d","Finally , section DATE ) of the LAW provides that it is unlawful for a public authority to act in a way which is incompatible with a LAW right . Section CARDINAL(CARDINAL ) clarifies that :","\u201c Subsection ( CARDINAL ) does not apply to an act if\u2013","( a ) as the result of CARDINAL or more provisions of primary legislation , the authority could not have acted differently ; or","( b ) in the case of CARDINAL or more provisions of , or made under , primary legislation which can not be read or given effect in a way which is compatible with the Convention rights , the authority was acting so as to give effect to or enforce those provisions . \u201d","In PERSON v. PERSON , ORG considered the refusal of the ERO for GPE , GPE and GPE to enrol a convicted prisoner on the electoral register on the basis of sections CARDINAL and CARDINAL of the CARDINAL Act , in anticipation of elections to ORG . The Secretary of ORG conceded in the proceedings that in light of the judgment of this ORG in ORG section CARDINAL(CARDINAL ) of the DATE Act was incompatible with LAW No . CARDINAL to the LAW and that the appellant 's rights under that LAW had been violated . He also accepted that for the purposes of LAW No . CARDINAL ORG was a legislature . The court , handing down its judgment on DATE , summarised the matters for examination in the following terms :","\u201c CARDINAL . Since section CARDINAL ) of LAW , giving the words of that provision their ordinary meaning , was incompatible with LAW , the ORG should consider whether it was possible , in terms of section CARDINAL(CARDINAL ) of LAW , to read it down in such a way as to make it compatible . If that was possible , it should be done and the appeal should be allowed .","If , however , that was not possible , then the appeal would be refused but the ORG should consider whether it could and should make a declaration of incompatibility in respect of section CARDINAL(CARDINAL ) of LAW in terms of LAW section CARDINAL(CARDINAL ) . If that could be done , it should be .","If the ORG did not take that course , it should consider , in the context of the requirement in terms of section CARDINAL of LAW for the Court not to act in a manner incompatible with the appellant 's Convention rights , whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement . If it would , then the ORG was obliged to give such remedy as was open to it within its powers at common law or under any statute . Such a remedy would include granting a declarator that the appellant 's rights under LAW had been violated . It was open to the ORG in the exercise of its inherent jurisdiction to grant such a declarator . \u201d","Counsel for the appellant argued that if there was some \u201c possible \u201d interpretation ( or \u201c reading down \u201d ) of section CARDINAL(CARDINAL ) of the DATE Act which would remove the incompatibility identified by this ORG in ORG , ORG should adopt it . He considered that insertion of words to the effect that any ban on prisoner voting \u201c would apply at the discretion of the sentencing judge \u201d would qualify , but not contradict , the \u201c grain of the legislation \u201d and that the case should accordingly be resolved along those lines . Counsel for the respondent submitted that while section CARDINAL of LAW empowered the court to interpret legislation , where possible , in a certain way , it did not entitle the court to amend or reverse clear legislative provisions , nor otherwise to usurp the legislative function of ORG . The court summarised counsel 's argument as follows :","\u201c CARDINAL . ... section CARDINAL(CARDINAL ) of the DATE Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences . There was thus no ' grain of the legislation ' which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights . Over and above that , it was necessary to recognise the complexity of the issues which had been opened up by the decision of ORG in ORG , and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward . Since the Convention rights conferred by LAW were in no way absolute , there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories , and it could be no part of this ORG 's function to make an uninformed choice among such alternatives . \u201d","The court continued :","\u201c CARDINAL . Against that background , we are clearly of the opinion that the appellant 's submission must be rejected and we decline to ' read down ' section CARDINAL ) of LAW in the manner proposed ... In our opinion to read down section CARDINAL(CARDINAL ) of LAW as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be ... to depart substantially from a fundamental feature of the legislation . Without the benefit of consultation or advice , this ORG would , in a real sense , be legislating on its own account , especially in view of the wide range of policy alternatives from which a ' possible ' solution would require to be selected ... \u201d","The court , however , made a declaration of incompatibility in respect of section CARDINAL(CARDINAL ) of the DATE Act .","On DATE , ORG of ORG considered the disenfranchisement of prisoners in judicial review proceedings challenging the legality of an order made by the Secretary of ORG for GPE regarding the organisation of the elections to ORG in DATE and the involvement of ORG in those elections . The challenge was based on the provisions of LAW DATE and in particular the requirement that NORP legislation and acts of ORG be compatible with the Convention . Lord PERSON rejected the claim for interdict ( injunction ) , emphasising that it was for ORG to decide whether to remove the incompatibility between domestic legislation and the ORG .","On the question of declaratory relief , he added :","\u201c CARDINAL . I should record that I was asked to repeat the declarator of incompatibility pronounced in PERSON . There is no dispute in these petitions as to the incompatibility between section CARDINAL of the DATE Act and article CARDINAL of the first protocol . The discussion focused on other matters . That incompatibility has been authoritatively determined in GPE . I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate ... \u201d","In the case of ORG and ORG , CARDINAL convicted prisoners sought , in light of ORG , a declaration that the disqualification of convicted prisoners from voting did not apply to elections to ORG . After careful consideration of the judgment of this ORG in ORG and the decision of ORG in PERSON , PERSON held :","\u201c CARDINAL(iv ) . I consider that the [ GPE ] court has deliberately left the method of compliance in the hands of ORG subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of DATE which makes up its response to the ORG decision . The consequence of this is that not only is Mr PERSON [ Deputy Director , Rights and International Relations in ORG at ORG ] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained , but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote . I reject the argument of Mr PERSON [ for the applicants ] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled . In my view that conforms neither with principle nor logic and certainly does not find any authority in ORG which expressly recognises that restraints on LAW are justifiable provided they pursue a legitimate aim and are proportionate . \u201d","In judicial review proceedings brought in ORG in GPE v. Secretary of ORG for ORG and another , the claimant , a prisoner , argued that his disqualification from voting in the then pending DATE ORG elections breached his rights under LAW No . CARDINAL and under ORG law . He was granted permission to bring his claim on DATE . At the hearing before PERSON , he argued that section DATE ( see paragraph CARDINAL above ) Act should be \u201c read down \u201d in order to enable him to vote or , in the alternative , a declaration of incompatibility as regards section CARDINAL of the DATE LAW should be made . He accepted that no argument could be mounted that a \u201c reading down \u201d of LAW CARDINAL of the DATE Act would be feasible , within the parameters of LAW .","The claim was dismissed by PERSON on DATE . As to the possibility of \u201c reading down \u201d section CARDINAL , PERSON held :","\u201c CARDINAL . ... I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature , but are imminently to be considered by the ORG . CARDINAL competing alternatives are presented to me for consideration . CARDINAL of these affects the franchise by allowing all convicted prisoners to vote . The other amends the statute so as to allow CARDINAL particular category of convicted prisoners , the post - tariff lifers , to vote , while still retaining a bar on all other prisoners , including those only serving very short terms of imprisonment , to whom it seems , on any basis , the ORG is proposing that the franchise should be extended ; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended .","The first proposal is not acceptable , not least for the same reasons as were enunciated by PERSON in paragraph CARDINAL(iv ) of his judgment [ in ORG and ORG ] , which I have cited earlier . Enfranchisement of all prisoners , including those with a minimum term \/ tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider , but it would be a dramatic change , was not , as PERSON points out , required by ORG . As for the alternative , selection of CARDINAL particular category of prisoner simply because CARDINAL of that category happens to be the Claimant , to effect what would in fact be a substantial amendment of the legislation , but CARDINAL category of convicted prisoner , can not be an appropriate exercise of this jurisdiction . It would lead to piecemeal and possibly continuous amendments , without consideration by ORG , of legislation dealing with matters of important social policy , all depending upon which claimant happened to be before the ORG at any one time . \u201d","PERSON concluded that if and in so far as section CARDINAL of the CARDINAL Act was incompatible with the LAW or with ORG law , reading it down was not an available remedy .","As to whether it would be appropriate to make a declaration of incompatibility in respect of section CARDINAL of the DATE Act , PERSON concluded :","\u201c DATE . ... I am content to say that there is no need for any declaration to be made by yet another court , as one has already been made which is binding on ORG .","However , towards the end of his submissions , PERSON [ for the claimant ] put forward another basis upon which to support his case for such a declaration . He submitted that , as the grant of a declaration is discretionary , there is no reason why it can not be made again , if it is made on different grounds . He submits that I can and should make a declaration that ORG of the DATE Act is incompatible with the ORG , and do so by reference to the fact that it excludes ( together with all other convicted prisoners ) post - tariff lifers . Then there would be some point in making the declaration , given that the ORG 's proposed legislation seems , subject to what may have emerged from the second consultation , to be intended not to make any change in their position . Hence , it would be a declaration as to the incompatibility with regard to the present legislation , but to be made because it does not appear as if there is going to be any amelioration of his client 's position by reference to the proposed legislation . This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions , to which I shall come in a moment . Subject however to that argument ... I reject his suggestion that I should make a declaration of incompatibility . \u201d","In respect of the application for a declaration of incompatibility as regards section CARDINAL of LAW , PERSON said :","\u201c CARDINAL . I am satisfied that , but for PERSON proposed legislation argument ' , this course is wholly inappropriate as a matter of discretion :","( i ) Simply as a matter of context and background , there is no presently intended NORP election , to which alone sCARDINAL would apply ... These proceedings were brought at the time when the DATE NORP elections were still in the future . There will now not be further such elections for DATE . By that time , whatever the ORG 's personal position may be , new legislation , whatever it may be , will be well in place ( and will have been capable of challenge , if appropriate ) .","( ii ) More significantly , it is plain that the challenge to sCARDINAL is purely parasitic to the real challenge , which is to ORG . SCARDINAL merely provides that ( with the exceptions discussed ) the same people can vote in NORP elections as can vote in GPE elections . When there is new legislation in place of ORG , sCARDINAL will automatically follow . A declaration has already been made in relation to ORG , upon which ORG wholly hangs , and legislation is to be put before ORG with the intention of curing the contravention of the ORG .","For the reasons I have given , namely that there is already a declaration of such incompatibility in relation to the governing section , ORG , upon which sCARDINAL entirely depends , the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to sCARDINAL , any more than there is to sCARDINAL ... \u201d","On the need for a further declaration of incompatibility as a result of the apparently limited scope of the proposed legislation , PERSON considered that any declaratory or other relief which was intended to interfere with the process by which new legislation resulting from the consultation process was put before and debated by ORG was inappropriate and was not to be granted . In any case , he concluded that the court was :","\u201c ... ill - equipped to decide this issue of social policy , and certainly ill - equipped to legislate and provide for the consequences of any view , plain and obvious or otherwise , as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban . \u201d","The claimant appealed and on CARDINAL DATE , was granted leave to appeal by ORG . The appeal was heard on DATE and the judgment is pending .","In its recent report , \u201c Enhancing ORG 's role in relation to human rights judgments \u201d , CARDINALth Report of DATE , published in DATE , a parliamentary committee , ORG , considered domestic developments in the execution of ORG judgment in ORG and noted :","\u201c CARDINAL . ... our overriding disappointment is at the lack of progress in this case . We regret that the ORG has not yet published the outcome of its second consultation , which closed DATE , in DATE . This appears to show a lack of commitment on the part of the Government to proposing a solution for ORG to consider .","...","It is now DATE since the judgment of ORG in GPE v GPE . The Government consultation was finally completed in DATE . Since then , despite the imminent general election , the Government has not brought forward proposals for consideration by ORG . We reiterate our view , often repeated , that the delay in this case has been unacceptable .","...","... Where a breach of the ORG is identified , individuals are entitled to an effective remedy by LAW . So long as the ORG continues to delay removal of the blanket ban on prisoner voting , it risks not only political embarrassment at ORG , but also the potentially significant cost of repeat litigation and any associated compensation . \u201d","On DATE a short debate took place in ORG following a question to the Government regarding their plans to give prisoners the right to vote . In the course of that debate , the Minister emphasised that the Government were under a legal obligation to change the law following the judgment in ORG . He said that the Government were actively considering how to implement the judgment and that once decisions had been made , legislative proposals would be brought forward .","On DATE , in response to a question in ORG , the Prime Minister also emphasised that the Government were required to come forward with proposals to implement the ORG 's judgment in ORG .","On DATE , in the context of their supervision of the execution of the ORG 's judgment in ORG , ORG adopted Interim Resolution CM \/ ResDH(CARDINAL)CARDINAL , which stated as follows :","\u201c ORG , ...","Recalling that , in the present judgment , the ORG found that the general , automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote , fell outside any acceptable margin of appreciation and was incompatible with LAW No . CARDINAL to the Convention ;","Recalling that the ORG , while acknowledging that the rights bestowed by LAW are not absolute , expressly noted that in the present case the blanket restriction applied automatically to all prisoners , irrespective of the length of their sentence , the nature or gravity of their offence and their individual circumstances ;","Recalling further that the ORG found ' no evidence that ORG has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote ' ;","Noting that the blanket restriction imposed by LAW DATE remains in full force and effect ;","Recalling that GPE authorities , in a revised ORG submitted in DATE , committed to undertaking a CARDINAL - stage consultation process to determine the measures necessary to implement the judgment of the ORG , with a view to introducing the necessary draft legislation before ORG in DATE ;","Noting that GPE authorities have provided detailed information as regards the consultation process , and that they are committed to continuing to do so ;","Noting however that the second consultation stage ended on DATE , and the GPE authorities are now undertaking a detailed analysis of the responses thereto , in order to determine how best to implement a system of prisoner enfranchisement based on the length of custodial sentence handed down to prisoners ,","EXPRESSES SERIOUS CONCERN that the substantial delay in implementing the judgment has given rise to a significant risk that the next GPE general election , which must take place by DATE , will be performed in a way that fails to comply with the Convention ;","URGES the respondent state , following the end of the second stage consultation period , to rapidly adopt the measures necessary to implement the judgment of the ORG ;","... \u201d","On DATE ORG adopted a decision in which they noted that notwithstanding ORG judgment in ORG , a declaration of incompatibility with the Convention under LAW by the highest civil appeal court in GPE in the case of PERSON v. PERSON and the large number of persons affected , the automatic and indiscriminate restriction on prisoners ' voting rights remained in force ; reiterated their serious concern that a failure to implement the ORG 's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons , giving rise to a substantial risk of repetitive applications to ORG ; and strongly urged the authorities rapidly to adopt measures , even if of an interim nature , to ensure the execution of the ORG 's judgment before the then pending general election .","On DATE ORG adopted a further decision in which they expressed profound regret that despite the repeated calls of ORG , the GPE general election had been held on DATE with the blanket ban on the right of convicted prisoners in custody to vote still in place ; and expressed confidence that the new GPE government would adopt general measures to implement the judgment ahead of elections scheduled for DATE in GPE , GPE and GPE , and thereby also prevent further , repetitive applications to ORG .","On DATE ORG adopted their most recent decision on the execution of ORG , in the following terms :","\u201c The Deputies ,","recalled that in the present judgment , delivered on DATE , the ORG found that the general , automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote , fell outside any acceptable margin of appreciation and was incompatible with LAW No . CARDINAL to the Convention ;","recalled that since its CARDINAL meeting ( DATE ) , the ORG has urged GPE to prevent future , repetitive applications by adopting general measures to implement the judgment ;","deeply regretted that despite the ORG 's calls to GPE over DATE to implement the judgment , the risk of repetitive applications to ORG has materialised as the ORG has communicated CARDINAL applications to the government with a view to adopting the pilot judgment procedure and has received over CARDINAL applications ;","noted , that according to the information provided by GPE authorities during the meeting , the new government is actively considering the best way of implementing the judgment ;","regretted , however , that no tangible and concrete information was presented to ORG on how GPE DATE intends to abide by the judgment ;","called upon GPE , to prioritise implementation of this judgment without any further delay and to inform ORG on the substantive steps taken in this respect ;","highlighted in this connection that , within the margin of appreciation of the state , the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote , such a restriction is proportionate with a discernible and sufficient link between the sanction , and the conduct and circumstances of the individual concerned ;","... \u201d","Article CARDINAL(CARDINAL)(b ) TFEU provides :","\u201c CARDINAL . ORG shall enjoy the rights and be subject to the duties provided for in the Treaties . They shall have , inter alia :","...","( b ) the right to vote and to stand as candidates in elections to ORG and in municipal elections in their Member State of residence , under the same conditions as nationals of that ORG ;","... \u201d","Article CARDINAL ) TFEU provides :","\u201c Without prejudice to Article PERSON ) and to the provisions adopted for its implementation , every citizen of the Union residing in a Member ORG of which he is not a national shall have the right to vote and to stand as a candidate in elections to ORG in the Member ORG in which he resides , under the same conditions as nationals of that ORG . This right shall be exercised subject to detailed arrangements adopted by the ORG , acting unanimously in accordance with a special legislative procedure and after consulting ORG ; these arrangements may provide for derogations where warranted by problems specific to a Member State . \u201d","Article CARDINAL TFEU provides :","\u201c CARDINAL . ORG shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member GPE or in accordance with principles common to all Member GPE .","The ORG , acting unanimously in accordance with a special legislative procedure and after obtaining the consent of ORG , which shall act by a majority of its component Members , shall lay down the necessary provisions ... \u201d","To date , the ORG has not adopted an instrument setting out a uniform election procedure . However , certain agreed principles are set out in LAW ( see below ) .","LAW provides :","\u201c CARDINAL . In each Member ORG , members of ORG shall be elected on the basis of proportional representation , using the list system or the single transferable vote .","Member GPE may authorise voting based on a preferential list system in accordance with the procedure they adopt .","Elections shall be by direct universal suffrage and shall be free and secret . \u201d","The DATE Act also contains provisions on , inter alia , the allocation of seats , campaign expenses , the term and nature of members ' mandates and the organisation of elections .","LAW clarifies that :","\u201c Subject to the provisions of this LAW , the electoral procedure shall be governed in each Member ORG by its national provisions .","These national provisions , which may if appropriate take account of the specific situation in the Member GPE , shall not affect the essentially proportional nature of the voting system . \u201d","Article CARDINAL of Directive CARDINAL\/CARDINAL\/EC stipulates that the directive lays down the detailed arrangements whereby citizens of the ORG residing in a Member ORG of which they are not nationals may exercise the right to vote and to stand as a candidate in elections to ORG .","Article CARDINAL provides :","\u201c Any person who , on the reference date :","( a ) is a citizen of the Union ... ;","( b ) is not a national of the Member ORG of residence , but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that ORG imposes by law on its own nationals ,","shall have the right to vote and to stand as a candidate in elections to ORG in the Member State of residence unless deprived of those rights pursuant to ORG and CARDINAL . \u201d","In so far as relevant , Article CARDINAL provides :","\u201c ...","In order to have his name entered on the electoral roll , a Community voter shall produce the same documents as a voter who is a national . He shall also produce a formal declaration ...","The Member ORG of residence may also require a ORG voter to :","( a ) state in his declaration under paragraph CARDINAL that he has not been deprived of the right to vote in his home Member State ;","... \u201d","Article CARDINAL refers to the right to stand as a candidate . Article CARDINAL allows the ORG of residence to verify whether a person seeking to exercise his right to vote under the Directive has been deprived of that right in the home ORG . If the information provided invalidates the content of the declaration made under LAW , the ORG of residence is required to take the appropriate steps to prevent the person concerned from voting .","In a preliminary reference to ORG ( \u201c ECJ \u201d ) in case C-CARDINAL\/CARDINAL PERSON v ORG , the ECJ was asked to consider the extent to which national courts were required to interpret national law in light of the wording and the purpose of an ORG directive which had not been implemented by the Member State in question . The ECJ held that :","\u201c ... the Member GPE ' obligation arising from a directive to achieve the result envisaged by the directive and their duty under LAW to take all appropriate measures , whether general or particular , to ensure the fulfilment of that obligation , is binding on all the authorities of Member GPE including , for matters within their jurisdiction , the courts . It follows that , in applying national law , whether the provisions in question were adopted before or after the directive , the national court called upon to interpret it is required to do so , as far as possible , in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ... \u201d"],"violated_articles":["P1"],"violated_paragraphs":["P1-3"],"violated_bulletpoints":[],"non_violated_articles":["13"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87369","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2008,"docname":"CASE OF MEDVEDYEV AND OTHERS v. FRANCE","importance":2,"conclusion":"Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient","judges":"Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger","text":["The applicants were crew members on a merchant ship named the Winner , flying the NORP flag .","As part of the international effort to combat drug trafficking , the NORP authorities were informed that the ship might be carrying large quantities of drugs .","By diplomatic telegram dated DATE , the NORP embassy in GPE informed ORG in GPE that , in response to a request from ORG for ORG ( \u201c OCRTIS \u201d ) for authorisation to intercept the Winner , and at the embassy 's request , the NORP Minister of ORG had personally given his Government 's agreement .","The Government produced a diplomatic note dated DATE , addressed by ORG to ORG in GPE , stating :","\u201c ORG and ORG ( ... ) , referring to its note no . CARDINAL dated DATE , has the honour formally to confirm that ORG of GPE authorises the NORP authorities to intercept , inspect and take legal action against the ship Winner , flying the NORP flag ( ... ) belonging ( ... ) to the PERSON islands . ( ... ) ORG","The commander of the frigate ORG was instructed by the NORP naval authorities to intercept the Winner .","On DATE , at TIME , the frigate spotted a merchant ship travelling at slow speed through the waters off LOC . It was not flying a flag , but was identified as the Winner . Its nationality was verified in accordance with international law and , as a security measure , a speedboat was lowered into the water . The merchant ship suddenly changed course , in an attempt to evade the frigate . When attempts were made to contact it on the international radio frequency , it remained silent . At the same time , the crew jettisoned packages over the stern into the sea . The frigate then identified itself and asked the Winner to stop , while signalling the international code TIME ( \u201c stop or I shall open fire \u201d ) ; no answer came and the ship was still not flying a flag , so a warning shot was fired , followed by further shots to stop it . At the same time the speedboat was ordered to recover the parcels that had been jettisoned . It only managed to recover one . Upon subsequent verification it was found to contain QUANTITY of a narcotic substance resembling cocaine .","Three more parcels were thrown overboard . As the freighter had still not stopped and was manoeuvring to prevent the speedboat from pulling alongside , GPE 's ORG for the LOC ordered the frigate to fire directly at the Winner 's bow . This caused the Winner to stop , and an armed commando team boarded it and took control of it by armed force . CARDINAL of the crew members , who sustained a bullet wound , was evacuated onto the frigate , where he was treated by the ship 's doctor before being transferred to GPE hospital , where he died DATE . The rest of the crew were confined to DATE on board the Winner under military guard . A tug was sent out from ORG , under orders from ORG and at the request of the public prosecutor in GPE , to tow the Winner into GPE harbour , escorted by the frigate Commandant GPE .","On DATE , at TIME , the ORG public prosecutor referred the case to ORG for examination under the flagrante delicto procedure . It emerged that the NORP coastguard had had the Winner under observation in connection with international drug trafficking in which NORP nationals were involved .","On DATE , the ORG prosecutor 's office opened an investigation into charges , against persons unknown , of leading a group with the aim of producing , making , importing , exporting , transporting , holding , supplying , selling , acquiring or illegally using drugs and conspiring to import and export drugs illegally . CARDINAL investigating judges were appointed .","On DATE , at TIME , the Winner entered GPE harbour under escort . The crew and cargo were handed over to the police , acting under instructions from CARDINAL of the investigating judges , who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights .","The Government submitted that the CARDINAL investigating judges went to see each of the detainees after TIME and after TIME to inform them that their police custody was being extended .","On DATE , PERSON , ORG , Mr PERSON and Mr PERSON were charged and remanded in custody pending trial . On DATE so were Mr PERSON , PERSON , PERSON , Mr PERSON , Mr PERSON and CARDINAL other crew members ( Mr PERSON and Mr PERSON ) .","The above QUANTITY persons applied to ORG of ORG to have the evidence disallowed ; relying in particular on LAW , they complained that the Winner had been arrested illegally and that their detention on board for DATE had also been illegal . In a judgment of DATE , the court dismissed their appeal and held that there were no grounds for disallowing the evidence .","In its judgment ORG pointed out that the international effort to combat drug trafficking was governed by ORG of DATE , ORG on the Law of the Sea , signed at LOC on DATE , and ORG in Narcotic Drugs and Psychotropic Substances , signed in GPE on DATE , all of which had been ratified by GPE . It considered that although GPE had not signed LAW , LAW of which provided for derogations from the traditional principle of the \u201c law of the flag ORG \u201d , that did not prevent the NORP authorities from \u201c requesting GPE 's cooperation to obtain authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew were suspected of engaging \u201d , based on LAW and \u201c with reference \u201d to LAW . According to ORG , as the provisions of LAW did not apply to GPE , it was for that ORG 's authorities to ask the NORP authorities for the information they needed in order to determine , as they alone were entitled to do , whether the request for assistance was well founded . The court then held that the diplomatic telegram of DATE from ORG established the existence of \u201c an agreement given without restrictions or reservations by ORG for the planned interception and all its consequences , and was authoritative until proven otherwise \u201d .","NORP However , ORG considered that the agreement in question did not dispense the NORP authorities from abiding by the rules of procedure set forth in LAW and in Articles CARDINAL et seq . of the Law of DATE as amended . Nor , it pointed out , had the NORP authorities failed in that obligation in the circumstances . In the light of the reports drawn up by the commander of ORG , ORG found that when the frigate had drawn within sight of the Winner the latter \u201c was flying no flag \u201d and its captain had \u201c not only failed to answer the requests to identify the ship , in breach of the rules of international law , and failed to stop the ship , but [ had ] responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the NORP frigate and the lives of the sailors on the speedboat \u201d , and the crew of the Winner had thrown parcels containing large quantities of cocaine into the sea . There had therefore been \u201c reasonable grounds \u201d , in ORG view , to suspect the Winner of drug trafficking , so that \u201c in using force to stop the Winner and taking appropriate measures to control and restrain the crew , who were confined to DATE , and to take over and steer the ship \u201d , the commander of the frigate had \u201c strictly observed \u201d the provisions of Article CARDINAL of LAW ( under which he is authorised , when a ship is boarded and searched , \u201c If evidence of involvement in illicit traffic is found , [ to ] take appropriate action with respect to the vessel , persons and cargo on board \u201d ) and the provisions of LAW DATE as amended , regulating the use of coercion measures , including , if necessary , the use of force in the event of refusal by a ship to submit to inspection ( ORG CARDINAL to CARDINAL ) , and providing for the implementation of the inspection and coercion measures provided for in international law in the particular case of drug trafficking ( ORG CARDINAL to CARDINAL ) .","ORG went on to dismiss the applicants ' argument that LAW DATE as amended provided only for assistance measures of an administrative nature , which excluded any form of coercion in respect of people , as the Article mentioned in general terms that the competent maritime authorities had the power to carry out or have carried out \u201c the inspection and coercion measures provided for in international law \u201d and Article CARDINAL c ) of the Vienna Convention concerning drug trafficking expressly mentioned taking \u201c appropriate action with respect to the vessel , persons and cargo on board \u201d . Although it accepted that the exact nature of that action was not specified , ORG considered that the text concerned provided \u201c at least for the competent naval authorities to limit , if necessary , the freedom of the boarded ship 's crew to come and go ; otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised \u201d . In respect of this last point , it considered that \u201c it can not be ruled out in the course of such operations against international drug traffickers on the high seas that the crew might have weapons hidden away and might seek to regain control of the ship by force \u201d . It concluded that \u201c the fact that the Winner 's crew were confined to DATE ( ... ) under military guard so that the ship could be safely taken over and rerouted fell within the appropriate action provided for in Article CARDINAL c ) of the Vienna Convention \u201d .","Lastly , ORG considered that the Law of DATE \u201c necessarily required some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas , in keeping with the rules of international law , and for the fact that it was impossible in practice , bearing in mind the time needed to sail to the new port of destination , to apply the ordinary rules governing detention and the right to be brought promptly before a judge \u201d . Accordingly , the restrictions placed on the movements of a boarded ship 's crew , as authorised in such cases by ORG signed in GPE on DATE , were not at variance with LAW and did not amount to unlawful detention . It also noted that in this particular case , as soon as the Winner had docked , its crew had been handed over to the police , immediately informed of their rights and placed in custody , then brought before the investigating judge .","An appeal on points of law lodged by the applicants ( complaining in particular of a violation of LAW ) was dismissed in a judgment of ORG of DATE . According to that court , \u201c in ruling as it did , in so far as GPE , the flag ORG , [ had ] expressly and without restriction authorised the NORP authorities to stop the Winner and , in keeping with LAW , only appropriate action had been taken against the persons on board , who [ had been ] lawfully taken into police custody as soon as they landed on NORP soil , ORG [ had ] justified its decision \u201d .","In a judgment of CARDINAL DATE the PERSON Vilaine Special Assize Court found Mr Georgios Boreas , PERSON PERSON GPE , PERSON PERSON and PERSON PERSON guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to DATE , DATE , DATE and DATE imprisonment ; it acquitted the other applicants of the charges against them . The parties have not said what the outcome of a subsequent appeal was .","GPE is party to ORG in Narcotic Drugs and Psychotropic Substances signed in GPE on DATE , LAW of which reads as follows :","\u201c ILLICIT TRAFFIC BY ORG","The Parties shall co - operate to the fullest extent possible to suppress illicit traffic by sea , in conformity with the international law of the sea .","A ORG which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose . The Parties so requested shall render such assistance within the means available to them .","A ORG which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law , and flying the flag or displaying marks of registry of another ORG is engaged in illicit traffic may so notify the flag ORG , request confirmation of registry and , if confirmed , request authorization from the flag ORG to take appropriate measures in regard to that vessel .","In accordance with paragraph CARDINAL or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties , the flag ORG may authorize the requesting ORG to , inter alia :","a ) Board the vessel ;","b ) Search the vessel ;","c ) If evidence of involvement in illicit traffic is found , take appropriate action with respect to the vessel , persons and cargo on board .","Where action is taken pursuant to this article , the Parties concerned shall take due account of the need not to endanger the safety of life at sea , the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag ORG or any other interested ORG .","The flag ORG may , consistent with its obligations in paragraph CARDINAL of this article , subject its authorization to conditions to be mutually agreed between it and the requesting ORG , including conditions relating to responsibility .","For the purposes of DATE of this article , a ORG shall respond expeditiously to a request from another ORG to determine whether a vessel that is flying its flag is entitled to do so , and to requests for authorization made pursuant to paragraph CARDINAL . At the time of becoming a ORG to this LAW , each ORG shall designate an authority or , when necessary , authorities to receive and respond to such requests . Such designation shall be notified through the Secretary - General to all other Parties within DATE of the designation .","A ORG which has taken any action in accordance with this article shall promptly inform the flag ORG concerned of the results of that action .","The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out , or to enhance the effectiveness of , the provisions of this article .","Action pursuant to paragraph CARDINAL of this article shall be carried out only by warships or military aircraft , or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect .","Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal GPE in accordance with the international law of the sea . \u201d","GPE has not , however , signed ORG , implementing article CARDINAL of LAW in LAW \u201d , signed in GPE on DATE , which entered into force on DATE .","Inserted by PERSON no . CARDINAL - CARDINAL of DATE \u201c on drug trafficking at sea and adapting NORP legislation to LAW signed in GPE on DATE \u201d , LAW no . CARDINAL of DATE \u201c on conditions governing the exercise by the ORG of its powers to carry out checks at sea \u201d reads as follows ( version applicable at the material time ) :","\u201c Where there exist reasonable grounds to suspect that CARDINAL of the vessels referred to in CARDINAL and sailing outside territorial waters is engaged in illicit drug trafficking , commanders of ORG vessels and of aircraft responsible for surveillance at sea shall have the power DATE under the authority of ORG , who shall inform ORG \u2013 to carry out , or have carried out the inspection and coercion measures provided for under international law and under this law . \u201d","Section CARDINAL of the law ( in the version applicable at the material time ) stipulates that section CARDINAL applies , not only to ships flying the NORP flag but also \u201c to ships flying the flag of ORG to LAW DATE other than GPE , or lawfully registered in such a ORG , at the request or with the agreement of the flag ORG \u201d ( in the version amended by PERSON no . DATE of DATE , LAW refers to \u201c ships flying the flag of a ORG which has requested intervention by GPE or agreed to its request for intervention \u201d ) and \u201c to ships displaying no flag or having no nationality \u201d . It adds that \u201c the investigation and establishment of drug trafficking offences committed at sea , and prosecution and trial therefor \u201d are to be governed by the following provisions ( version applicable at the material time ) :","\u201c LAW taken at the request or with the agreement of ORG to the above - mentioned GPE Convention of DATE","Section CARDINAL","I. \u2013 Where he decides to search the ship , at the request or with the agreement of ORG to the above - mentioned LAW , the commander may have any narcotic substances found on board seized , together with any objects or documents which appear to be linked to drug trafficking .","They shall be placed under seal in the presence of the captain of the ship or any person found on board the ship .","II . - The commander may order the ship to be rerouted to an appropriate position or port when more thorough inspection is required that can not be carried out at sea .","The ship may also be rerouted to a point located in international waters if the flag ORG expressly requests it , with a view to taking control of the ship .","III . \u2013 A report on the measures taken in application of LAW , and the products , objects or documents placed under seal , shall be handed over to the authorities of the flag ORG when no further judicial action is taken on NORP soil .","LAW . \u2013 Powers of the NORP courts","Section CARDINAL","Persons accused of drug trafficking on the high seas and their accomplices may be prosecuted and tried by the NORP courts when bilateral or multilateral agreements or special arrangements have been concluded between GPE Parties to LAW .","Such special arrangements shall be transmitted through diplomatic channels to the NORP authorities , together with any information capable of giving rise to a suspicion that a ship is engaged in drug trafficking .","A copy of these documents shall be forwarded by any means and without delay to the public prosecutor .","Section CARDINAL","Police officers acting in accordance with the provisions of LAW , customs officers and , when specially so authorised under conditions laid down by a decree of the ORG d'Etat , commanders of ORG vessels , naval officers on board such vessels and commanders of ORG aircraft responsible for patrolling the seas , shall all be empowered to establish that drug trafficking offences are being committed and bring the offenders to justice in the following manner :","DATE The relevant public prosecutor shall be given prior notification , by any means , of the operations envisaged with a view to investigating and establishing the offences .","The offences shall be placed on record and the record thus made shall be authoritative unless proven otherwise . The report drawn up shall be communicated to the public prosecutor without delay and at the latest within DATE following the operations . The interested party shall be given a copy .","II . \u2013 Subject to the authorisation of the public prosecutor ( except in cases of extreme urgency ) , searches may be made and narcotic substances seized as well as objects or documents that appear to be linked to an offence under the legislation on narcotic substances , or to serve to commit such an offence . Such authorisation shall be communicated by any means .","The substances , objects or documents seized shall immediately be placed under seal .","Searches may be carried out and items seized on board the ship outside the times laid down in LAW . \u201d","GPE is also party to LAW of DATE , LAW which reads as follows :","\u201c Having due regard to their constitutional , legal and administrative systems , the Parties shall :","a ) Make arrangements at the national level for co - ordination of preventive and repressive action against the illicit traffic ; to this end they may usefully designate an appropriate agency responsible for such co - ordination ;","b ) Assist each other in the campaign against the illicit traffic in narcotic drugs ;","c ) Co - operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co - ordinated campaign against the illicit traffic ;","d ) Ensure that international co - operation between the appropriate agencies be conducted in an expeditious manner ; and","e ) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution , the transmittal be effected in an expeditious manner to the bodies designated by the Parties ; this requirement shall be without prejudice to the right of a ORG to require that legal papers be sent to it through the diplomatic channel ;","f ) Furnish , if they deem it appropriate , to ORG through the Secretary - General , in addition to information required by article CARDINAL , information relating to illicit drug activity within their borders , including information on illicit cultivation , production , manufacture and use of , and on illicit trafficking in , drugs ; and","g ) Furnish the information referred to in the preceding paragraph as far as possible in such manner , and by such dates as the ORG may request ; if requested by a ORG , the ORG may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that ORG . \u201d","Articles CARDINAL and CARDINAL of LAW on the Law of the Sea , signed at LOC on DATE , read as follows :","\u201c ArticleCARDINAL : Illicit traffic in narcotic drugs or psychotropic substances","All GPE shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions .","Any ORG which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other GPE to suppress such traffic . \u201d","\u201c Article CARDINAL : Right of visit","Except where acts of interference derive from powers conferred by treaty , a warship which encounters on the high seas a foreign ship , other than a ship entitled to complete immunity in accordance with articles CARDINAL and CARDINAL , is not justified in boarding it unless there is reasonable ground for suspecting that :","( a ) the ship is engaged in piracy ;","( b ) the ship is engaged in the slave trade ;","( c ) the ship is engaged in unauthorized broadcasting and the flag ORG of the warship has jurisdiction under LAW ;","( d ) the ship is without nationality ; or","( e ) though flying a foreign flag or refusing to show its flag , the ship is , in reality , of the same nationality as the warship .","In the cases provided for in paragraph CARDINAL , the warship may proceed to verify the ship 's right to fly its flag . To this end , it may send a boat under the command of an officer to the suspected ship . If suspicion remains after the documents have been checked , it may proceed to a further examination on board the ship , which must be carried out with all possible consideration .","If the suspicions prove to be unfounded , and provided that the ship boarded has not committed any act justifying them , it shall be compensated for any loss or damage that may have been sustained .","These provisions apply mutatis mutandis to military aircraft .","These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57472","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1983,"docname":"CASE OF DUDGEON v. THE UNITED KINGDOM (ARTICLE 50)","importance":2,"conclusion":"Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"","text":["The PERSON case was referred to the ORG by ORG ( \" the Commission \" ) in DATE . The case originated in an application against GPE and GPE lodged with the Commission on DATE by a GPE citizen , Mr. PERSON .","On DATE , the ORG constituted to hear the case relinquished jurisdiction in favour of ORG ( Rule CARDINAL of the Rules of Court ) . By judgment of CARDINAL DATE , ORG held , inter alia , that the applicant had been the victim of a breach of LAW article CARDINAL) of the LAW by reason of the existence in GPE of laws which had the effect of making certain homosexual acts committed in private between consenting adult males criminal offences ( Series A no . DATE , point CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . CARDINAL and CARDINAL ) .","The only outstanding matter to be settled in the present case is the question of the application of LAW ) . Accordingly , as regards the facts the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .","At the hearing held on DATE , counsel for the applicant had stated that , should the ORG find a violation of the LAW , his client would be seeking just satisfaction under LAW ) to obtain financial compensation for damage suffered and for legal and other expenses incurred . ORG of GPE ( \" the Government \" ) , for their part , had taken no stand on the matter .","In its judgment of CARDINAL DATE , ORG reserved the whole of the question of the application of LAW ) and referred it back to LAW . On DATE , ORG invited the ORG to submit , within DATE , written observations thereon , including notification of any friendly settlement at which the ORG and the applicant might have arrived ( ibid . , p. CARDINAL ) .","Following CARDINAL extensions by the President of ORG above - mentioned time - limit and in accordance with his orders and directions , the following documents were filed at the registry :","- on CARDINAL DATE , the observations of ORG , appended to which were , inter alia , details of the applicant 's claim ;","- on DATE , a memorial from the Government ;","- on DATE , the reply of the Delegates to a question raised therein by the Government ;","- on DATE , through the Secretary to ORG , the observations of the applicant on the above - mentioned memorial of the Government ;","- on DATE , the comments of the Government on the latter observations .","On DATE and CARDINAL DATE , ORG transmitted to the Registrar further observations by Mr. PERSON , which the latter had sent to the Commission on his own initiative .","These various documents revealed that it had not been possible to arrive at a friendly settlement . The Delegates did not comment on the merits of the applicant 's claim , which may be summarised as follows :","- for damage suffered as a result of the police investigation carried out in DATE , financial compensation of \u00a3 MONEY ;","- for damage suffered by reason of the very existence of the legislation successfully complained of , financial compensation of \u00a3 MONEY and a declaration by the Government that if Mr. PERSON were to apply for civil service employment he would not be discriminated against either on grounds of homosexuality or for having lodged his petition with the Commission ;","- reimbursement of costs itemised at \u00a3 MONEY .","Further particulars of the claim are set out below in the section \" As to the law \" .","Following the ORG 's judgment of CARDINAL DATE and on the initiative of ORG , an ORG , entitled ORG ( GPE ) DATE , was made . Subject to certain exceptions concerning mental patients , members of the armed forces and merchant seamen , the effect of this Order , which came into force on DATE , is to \" decriminalise \" in GPE homosexual acts committed in private between CARDINAL consenting males aged DATE and over . The Order brings the relevant law in GPE into line with that applying in the remainder of GPE ( see the above - mentioned judgment of CARDINAL DATE , pp . DATE , \u00a7 \u00a7 DATE ) .","Having consulted , through the Registrar , the Agent of the Government and the Delegates of the ORG , the ORG decided on DATE that there was no call to hold hearings .","Mr. PERSON , Mr. PERSON and Mr. PERSON , substitute judges , took the place of Mr. PERSON , Mr. PERSON and Mr. PERSON , who were prevented from taking part in the further consideration of the case ( Rules CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59886","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2001,"docname":"CASE OF FOGARTY v. THE UNITED KINGDOM","importance":1,"conclusion":"No violation of Art. 6-1;No violation of Art. 14+6","judges":"Gaukur J\u00f6rundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["On DATE the applicant commenced employment as an administrative assistant at ORG in GPE , in ORG , which is a subsidiary of ORG . She was dismissed from her employment in DATE . Following her dismissal the applicant issued proceedings against ORG in ORG , claiming that her dismissal had been the result of sex discrimination contrary to sections PERSON ) , CARDINAL ) and CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence . ORG defended the claim and did not , at any stage in these proceedings , claim ORG immunity . On DATE the ORG upheld the applicant \u2019s complaint . A compensation figure of GBP CARDINAL was agreed between the parties .","NORP In DATE , whilst her first claim in ORG was still pending , the applicant applied for and obtained a fixed term DATE contract as an administrative assistant within ORG section of the ORG . The contract was due to expire in DATE . In DATE and DATE ( after the finding in her favour by ORG ) , the applicant applied for CARDINAL of the following posts at ORG : secretary with ORG , temporary secretary with the above office and temporary secretary with ORG , which is operated by ORG . On each occasion her application was unsuccessful .","On DATE the applicant issued a second application before ORG . She claimed that the refusal of the ORG to re - employ her in CARDINAL of the above posts was a consequence of her previous successful sex discrimination claim , and accordingly constituted victimisation and discrimination within the meaning of sections CARDINAL and CARDINAL of LAW DATE .","By a letter of DATE , solicitors acting for GPE notified the Regional Secretary to ORG that ORG intended to claim immunity from the jurisdiction of the ORG under sections CARDINAL and CARDINAL(CARDINAL)(a ) of LAW DATE ( \u201c the DATE LAW : see paragraph CARDINAL below ) . The letter enclosed an affidavit sworn by the First Secretary at the ORG , deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the ORG , and accordingly fell within the ambit of the immunity imposed by section CARDINAL(CARDINAL)(a ) of LAW .","On DATE the applicant received the advice of counsel , to the effect that ORG were entitled to claim immunity under LAW , and that once immunity was properly asserted there was no means by which a court or tribunal in GPE could accept jurisdiction to entertain the application . Accordingly , the applicant was advised that she had no remedy in domestic law .","LAW DATE ( \u201c the CARDINAL Act \u201d ) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex ( \u201c sex discrimination \u201d ) , or by reason of the fact that she has taken or intends to take proceedings against any person under LAW ( \u201c victimisation \u201d ) .","Section CARDINAL(CARDINAL ) of the Act defines \u201c sex discrimination \u201d as follows :","\u201c A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this LAW if : ( a ) on the ground of her sex he treats her less favourably than he treats or would treat a man ... \u201d","Section CARDINAL(CARDINAL ) of the LAW defines \u201c victimisation \u201d as follows :","\u201c A person ( \u2018 the ORG ) discriminates against another person ( \u2018 the person ORG ) in any circumstances relevant for the purposes of any provision of this LAW if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons , and does so by reason that the person victimised has : ( a ) brought proceedings against the discriminator or any other person under LAW , or ... ( d ) alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this LAW or give rise to a claim under LAW DATE ... \u201d","Section CARDINAL of this LAW defines the circumstances in which it is unlawful to discriminate against employees and applicants , on the grounds of sex discrimination or victimisation , as follows :","\u201c ( CARDINAL ) It is unlawful for a person , in relation to employment by him at an establishment in GPE , to discriminate against a woman : ( a ) in the arrangements he makes for the purpose of determining who should be offered that employment , or ... ( c ) by refusing or deliberately omitting to offer her that employment . \u201d","( CARDINAL ) It is unlawful for a person , in the case of a woman employed by him at an establishment in GPE , to discriminate against her ... ( b ) by dismissing her , or subjecting her to any other detriment . \u201d","GPE State Immunity Act DATE provides , inter alia , as follows :","\u201c CARDINAL(CARDINAL ) A ORG is immune from the jurisdiction of the courts of the GPE except as provided in the following provisions of this Part of this Act . ORG \u2026 CARDINAL(CARDINAL ) A State is not immune as respects proceedings relating to a contract of employment between the ORG and an individual where the contract was made in GPE or the work is to be wholly or partly performed there . CARDINAL(CARDINAL ) Subject to sub - sections ( CARDINAL ) and ( CARDINAL ) below , this section does not apply if- ( a ) at the time when the proceedings are brought the individual is a national of the ORG concerned ; or ( b ) at the time when the contract was made the individual was neither a national of GPE nor habitually resident there ; or ( c ) the parties to the contract have otherwise agreed in writing . CARDINAL(CARDINAL ) Where the work is for an office , agency or establishment maintained by the ORG in GPE for commercial purposes , sub - section ( CARDINAL)(a ) and ( b ) above do not exclude the application of this section unless the individual was , at the time when the contract was made , habitually resident in that ORG . ORG \u2026 CARDINAL(CARDINAL ) This Part of this LAW does not affect any immunity or privilege conferred by LAW DATE or LAW DATE ; and:- ( a ) Section CARDINAL above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of DATE or of the member of a consular post within the meaning of the Convention scheduled to said Act of DATE . ... \u201d","Article CARDINAL of LAW which is scheduled to LAW provides the following definitions :","\u201c ( b ) the \u2018 members of the GPE are the head of the mission and the members of staff of the mission ; ( c ) the \u2018 members of staff of the LOC are the members of diplomatic staff or the administrative and technical staff , and of the service staff of the mission . ... ( f ) the \u2018 members of the administrative and technical GPE are the members of the staff of the mission employed in the administrative and technical service of the mission . \u201d","The DATE European Convention on State Immunity ( \u201c the Basle Convention \u201d ) , entered into force on DATE after its ratification by CARDINAL States . It has now been ratified by MONEY ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) and signed by CARDINAL other ORG ( GPE ) . It entered into force in respect of GPE on DATE , and provides , inter alia :","Article CARDINAL","\u201c CARDINAL . A Contracting State can not claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the ORG and an individual where the work has to be performed in the territory of the ORG of the forum . CARDINAL . Paragraph CARDINAL shall not apply where : ( a ) the individual is a national of the employing ORG at the time when the proceedings were brought ; ( b ) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that ORG ; or ( c ) the parties to the contract have otherwise agreed in writing , unless , in accordance with the law of the State of the forum , ORG that ORG have exclusive jurisdiction by reason of the subject - matter . CARDINAL . Where the work is done for an office , agency or other establishment referred to in DATE , paragraphs PERSON ) and ( b ) of the present article apply only if , at the time the contract was entered into , the individual had his habitual residence in the Contracting State which employs him . \u201d","Article CARDINAL","\u201c Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them . \u201d","ORG on ORG and Their Property , submitted to ORG of ORG ( ( DATE ) , PERSON ) PERSON CARDINAL ) , provides at LAW , paragraph CARDINAL , that :","\u201c a ORG can not invoke immunity ... in a proceeding which relates to a contract of employment between the ORG and an individual for work performed in the territory of [ the host ] ORG . \u201d","However , this provision is specifically disapplied where \u201c the subject of the proceedings is the recruitment , renewal of employment or reinstatement of the individual \u201d and where \u201c the employee has been recruited to perform functions closely related to the exercise of governmental authority \u201d .","Although there is no explicit reference to employment at diplomatic or consular missions in these provisions , the commentary indicates that the latter exception was intended to apply in such a context and that all employees at such missions would be precluded from bringing suit on the basis of ORG immunity .","ORG of ORG adopted in DATE its LAW , Article IIIC of which dealt with contracts of employment and was similar in its terms to LAW . An amendment was added to LAW DATE conference , providing for immunity to be granted where \u201c the employee was appointed under the public ( administrative ) law of the foreign state such as , inter alia , members of the mission , diplomatic , consular or military staff \u201d . In the explanatory commentary on the amendment the ORG stated that it wished \u201c to make clear that the employment relationship of any and all diplomatic and consular staff and other members of the mission should be immune from the jurisdiction of the courts of the forum state \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57603","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1985,"docname":"CASE OF X AND Y v. THE NETHERLANDS","importance":2,"conclusion":"Violation of Art. 8;Non-pecuniary damage - financial award","judges":"C. Russo","text":["ORG Mr. PERSON and his daughter Y were born in DATE and on DATE respectively . The daughter , who is mentally handicapped , had been living since DATE in a privately - run home for mentally handicapped children .","ORG During TIME DATE , Miss Y was woken up by a certain Mr. B , the son - in - law of the directress ; he lived with his wife on the LOC of the institution although he was not employed there . Mr. PERSON forced the girl to follow him to his room , to undress and to have sexual intercourse with him .","This incident , which occurred on DATE after Miss Y \u2019s sixteenth birthday , had traumatic consequences for her , causing her major mental disturbance .","ORG On DATE , Mr. PERSON went to the local police station to file a complaint and to ask for criminal proceedings to be instituted .","The police officer said that since Mr. PERSON considered his daughter unable to sign the complaint because of her mental condition , he could do so himself . The statement lodged by Mr. PERSON read as follows : \" In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter . I am doing this because she can not do so herself , since , although DATE , she is mentally and intellectually still a child . \"","ORG The police officer drew up a report and it was signed by Mr. PERSON ( ORG CARDINAL and CARDINAL of LAW ) . The officer subsequently informed the public prosecutor \u2019s office that in the light of the father \u2019s statement and of his own observations concerning the girl \u2019s mental condition , she did not seem to him capable of filing a complaint herself . According to the headmaster of the school she was attending and another teacher there , she was unable to express her wishes concerning the institution of proceedings .","ORG On DATE , the public prosecutor \u2019s office provisionally decided not to open proceedings against Mr. B , provided that he did not commit a similar offence within DATE . The official in charge of the case so informed Mr. PERSON at a meeting on DATE .","ORG On DATE , Mr. PERSON appealed against the decision of the public prosecutor \u2019s office to ORG , under LAW ; he requested the court to direct that criminal proceedings be instituted .","In a supplementary memorial of DATE , he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case , a legal representative was entitled to act on behalf of the complainant .","ORG dismissed the appeal on DATE . In fact , it considered it doubtful whether a charge of rape ( Article CARDINAL of LAW ; see paragraph CARDINAL below ) could be proved . As for LAW ( see paragraph CARDINAL below ) , it would have been applicable in the instant case , but only if the victim herself had taken action . In ORG view , the father \u2019s complaint ( Article CARDINAL para . CARDINAL of LAW ; see paragraph CARDINAL below ) could not be regarded as a substitute for the complaint which the girl , being over DATE , should have lodged herself , although the police had regarded her as incapable of doing so ; since in the instant case no one was legally empowered to file a complaint , there was on this point a gap in the law , but it could not be filled by means of a broad interpretation to the detriment of Mr. PERSON","ORG By virtue of LAW , there was no possibility of appealing on a point of law to ORG ( PERSON ) against this decision .","ORG As regards sexual offences , LAW makes a distinction between rape ( LAW ) and indecent assault ( LAW ) , recourse to physical violence also being a constituent element of the latter offence .","ORG Other more specific provisions afford in this area protection to certain categories of persons whose age , position of dependence or physical incapacity renders it difficult or impossible for them to determine or impose their wishes .","Articles CARDINAL and CARDINAL , respectively , make it a criminal offence to have sexual intercourse with a girl under DATE twelve or with a girl DATE , and under LAW it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen .","Articles CARDINAL and CARDINAL concern , respectively , sexual intercourse with , and indecent assault on , a woman known to the offender to be unconscious or helpless . According to ORG , however , the word \" helpless \" refers only to physical incapacity .","Article CARDINAL relates to indecent acts committed with a minor who is in a position of dependence vis - \u00e0 - vis the perpetrator .","Finally , Article CARDINAL concerns indecency , either in public or while another person is present against his will .","Save for Article CARDINAL , none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim .","ORG The same does not apply to LAW , whereby a sentence of not more than four years\u2019 imprisonment may be imposed on any person who , \" through gifts or promises ... , through abuse of a dominant position resulting from factual circumstances , or through deceit , deliberately causes a minor of blameless conduct to commit indecent acts with him or to suffer such acts from him \" : in a case of this kind , the offender can be prosecuted only on complaint by the actual victim .","Under LAW para . CARDINAL , however , the legal representative may lodge the complaint on behalf of the victim if the latter is under DATE or is placed under guardianship ( curateele ) ; this latter institution exists only for persons who have reached the age of majority , namely CARDINAL ( Article CARDINAL , ORG , of LAW ) .","ORG At the hearings , counsel for the Government informed ORG that ORG had prepared a PERSON modifying the provisions of LAW that related to sexual offences . Under the PERSON , it would be an offence to make sexual advances to a mentally handicapped person ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22825","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2002,"docname":"OLCZAK v. POLAND","importance":1,"conclusion":"Inadmissible","judges":"Georg Ress;Mark Villiger","text":["NORP The applicant , a NORP citizen residing in PERSON , is an engineer .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the President of ORG issued a decision under the provisions of the DATE LAW authorising the establishment of ORG ( ORG w Lublinie ) , a public company with foreign capital .","NORP In DATE the company was registered in the public companies register at ORG . The share capital of the company was MONEY ( PLZ - \u201c old \u201d , equivalent to CARDINAL new NORP zlotys as from DATE ) . PERCENT of the shares were owned by CARDINAL PERSON","On DATE the applicant bought shares in ORG from PERSON The parties fixed the price for the shares at PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL , to be paid in CARDINAL instalments . The applicant thus acquired PERCENT of the bank \u2019s equity capital .","On DATE the applicant and PERSON agreed to rescind this contract . On DATE the bank , having regard to PERSON \u2019s failure to pay it the sums he owed , took over a number of his shares in order to cover his unpaid obligations . Later on , the applicant deposited with the bank CARDINAL shares which he had purchased from PERSON The bank sought the consent of the President of ORG to a re - transfer of ownership from the applicant to PERSON","By a letter of CARDINAL DATE the President refused . She stated in her letter that the bank was an institution of public trust , using the assets of private persons . Under the provisions of the DATE LAW , and in particular its Article CARDINAL , the activities of banks were supervised by ORG in order to protect savings and investments entrusted to them . PERSON , who had meanwhile been arrested and extradited to GPE , where he had been convicted of financial fraud , did not give any guarantee that the interests of the bank \u2019s customers would be properly protected if he remained a majority shareholder in the bank . It was also noted that a conflict of interest arose , as , in addition to being the bank \u2019s majority shareholder , PERSON had been the sole or joint owner of a number of companies which had defaulted on loans from the bank , thus undermining its financial standing .","By a letter of CARDINAL DATE the President of ORG drew the attention of the bank \u2019s board to the necessity of preparing a recovery and restructuring programme in order to improve the bank \u2019s financial standing .","The bank \u2019s losses for DATE totalled PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL,CARDINAL , its capital resources being PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL .","On DATE T. company , owned by the applicant , took out a loan of PLZ CARDINAL from the bank , repayable within DATE .","By a decision no . CARDINAL of DATE the President of ORG appointed a ORG ( PERSON ) which was to replace the existing governing and supervisory bodies of the company for DATE . In so doing , she had regard to the continuing deterioration of the bank \u2019s financial situation and to the danger of its becoming insolvent . The measure was intended to improve the bank \u2019s financial standing and to preserve the assets deposited with it . Regard was also had to the fact that the bank \u2019s board had failed to submit the recovery programme requested by ORG . It was further pointed out that the composition of the bank \u2019s board had been changed many times , which made it difficult for any coherent management policy to be adopted , and that the new board , elected in DATE , had also failed to devise a recovery programme and to show that it would be able to prepare and implement it . True , it had undertaken to do so within DATE , but in the bank \u2019s dramatic situation that was far too long and late . It was further noted that the bank could only be saved by external financing , but no institutions prepared to fund a rescue operation had been found .","NORP In the external auditors\u2019 report for DATE , subsequently prepared at the request of ORG , it was stated , inter alia , that before DATE the bank \u2019s governing bodies and its principal shareholder , PERSON , had acted in an unprofessional manner which brought about considerable losses . The losses had been caused , in particular , by transactions between the bank and companies owned by the principal shareholder , PERSON A number of ill - advised loans had been made , in particular to companies and private individuals linked to PERSON It was necessary to re - assess the bank \u2019s strategy , in particular by finding an external investor willing to improve the bank \u2019s financial standing by increasing its share capital . However , the chances of finding an investor willing to invest MONEY were practically non - existent . Another option was to seek institutional support from ORG , ORG or a different source . Any new investor would have to take control of the bank in order to manage it until its financial standing improved . Accordingly , the existing shareholders would lose their dominant position . ORG","According to an extract from the bank \u2019s books , on CARDINAL DATE the applicant \u2019s company , ORG , owed the bank PLZ CARDINAL . On DATE the bank instituted enforcement proceedings against that company .","On DATE the mandate of ORG was prolonged until DATE . It was subsequently renewed again .","On DATE ORG adopted a resolution by virtue of which the bank \u2019s memorandum of association was amended . The nominal value of its share capital was first reduced from PLZ CARDINAL to PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL by cancelling CARDINAL Class A shares worth PLZ CARDINAL each . The value of CARDINAL remaining Class A shares A was reduced from PLZ MONEY to PLZ CARDINAL . The sum of PLZ CARDINAL thus generated was to be used in its entirety to cover the bank \u2019s losses . Next the bank \u2019s share capital was increased by PLZ CARDINAL through the issue of CARDINAL new Class B non - transferable shares of PLZ CARDINAL each , with extra voting rights . Class B shares were to be paid up entirely by funds provided by ORG in order to improve the standing of the bank , which was on the verge of bankruptcy ; they were consequently allotted to ORG , to be owned by it . The existing shareholders , in order to protect the bank \u2019s interests , were prevented from acquiring new shares .","As a result of these operations , the applicant \u2019s shareholding decreased from PERCENT .","On DATE ORG adopted another resolution by deleting the provision in the bank \u2019s memorandum of association which prohibited the cancellation of shares , and introduced a provision to the effect that the shares could be cancelled by reducing the share capital .","On DATE the applicant lodged a civil action with ORG seeking an order setting aside the resolution of DATE . He submitted that the resolution had arbitrarily decreased the value of his shares and deprived him of the right to acquire new shares ; consequently , he had sustained a heavy financial loss . He also argued that the resolution contravened applicable laws , in particular banking laws and LAW .","On DATE ORG ordered that the pleadings be returned to the applicant on the ground that he had not complied with the relevant procedural requirements under LAW , as he had failed to indicate the value of the claim . It considered that that claim was clearly of a pecuniary character , its value being equivalent to the loss he had sustained as a result of the resolution of DATE .","On DATE the applicant appealed against that order , submitting that pursuant to the regulation on court fees , only a fixed fee was to be paid to commence an action for an order quashing corporate resolutions . Thus , it was unnecessary for him to indicate the amount in dispute .","On DATE ORG , acting as an appellate court , dismissed the applicant \u2019s appeal , considering that the lower court had been right to find that his claim was of a pecuniary character , since his aim was to obtain compensation for his alleged loss resulting from the resolution .","On DATE the applicant again lodged a civil action with ORG , seeking an order quashing the resolution of DATE . He submitted that the amount in dispute was PLZ CARDINAL . On DATE ORG requested the applicant to pay court fees of PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL .","On DATE the applicant requested an exemption in respect of the court fees . He submitted that his property had been seized by a bailiff in the context of enforcement proceedings which had been instituted against him by ORG on DATE .","On DATE ORG refused to grant the applicant an exemption , considering that he had failed to submit to the court detailed information regarding his financial situation . The applicant lodged an interlocutory appeal against that decision .","On DATE ORG dismissed the appeal . It examined the documents submitted in support of the appeal and considered that , as the applicant had significant assets , including CARDINAL companies and real property , he did not qualify for an exemption .","On DATE ORG ) ordered that entries be made in ORG , reflecting the results of ORG of DATE .","On DATE the applicant lodged an appeal against that decision .","On DATE ORG referred a question on points of law to ORG ( S\u0105d Najwy\u017cszy ) . ORG was requested to rule on the correct interpretation of the scope of ORG power to adopt resolutions on matters reserved to the company \u2019s ORG general meeting , in particular as regards reducing the share capital . ORG","On DATE ORG , by resolution no . III CZP CARDINAL\/CARDINAL , stated that ORG appointed under the provisions of LAW was empowered to adopt resolutions on all matters reserved by statute or by the company \u2019s memorandum of association to the company \u2019s shareholders in general meeting . It held that , with regard to banks , the provisions of LAW , which was a lex specialis , took precedence over the provisions of the LAW governing public companies which contained certain limitations on the powers of ORG .","On DATE ORG dismissed the applicant \u2019s appeal .","On DATE ORG dismissed an action brought by ORG Produkcji Le\u015bnej LAS ) against ORG . The plaintiff company , which had been a shareholder of the bank , sought an order quashing the resolution of DATE . It argued that the resolution should be quashed in pursuance of LAW which allowed shareholders to seek an order setting aside resolutions of the ORG general meeting if taken deliberately to their detriment .","On DATE the applicant requested ORG permission to join these proceedings as a co - plaintiff . On DATE he lodged an appeal against the judgment of DATE . The applicant contended in his appeal that the impugned judgment was in breach of substantive law in that the court had wrongly held that the provisions of LAW took precedence over the provisions of LAW concerning ORG power to challenge before the courts certain resolutions of a ORG general meeting . The applicant further submitted that the court had failed to draw reasonable conclusions from the evidence , in particular in that it had not concluded that the impugned resolution had been taken deliberately to the ORG detriment .","On DATE ORG dismissed the applicant \u2019s appeal . It found that ORG had appointed ORG in view of the heavy losses which ORG had sustained in DATE , mostly as a result of bad debts . It was not in dispute that the bank had sustained such losses . The purpose of the resolution of DATE had been to improve the bank \u2019s financial standing in the interest of its customers and in order to prevent it from becoming insolvent . The court further referred to the resolution of ORG of DATE . It considered that , in the light of that resolution , ORG .","On DATE the judgment was served on the applicant . He requested the Minister of ORG to lodge an extraordinary appeal on his behalf . By a letter of CARDINAL DATE the Minister of ORG declined to do so , considering that the impugned judgment was in conformity with the law .","Pursuant to LAW as in force at the material time , if a bank suffers or is in danger of suffering losses or of becoming insolvent , its board must promptly inform the President of ORG and take appropriate recovery measures . A recovery programme must be submitted to the President of ORG for approval within DATE .","If the board fails to do so , or if such programme does not appear to guarantee an improvement in the bank \u2019s standing , the President of ORG may place the bank under compulsory receivership .","The board of receivers has powers to make decisions in all matters concerning the bank . Its primary task is to prepare a recovery programme for approval by ORG and to ensure its implementation .","On DATE the Constitutional Tribunal gave a decision under which Article CARDINAL of CARDINAL Banking Act was to be construed as meaning that the board of receivers had the power of taking any decisions that the suspended statutory organs of the bank were empowered to take ( W CARDINAL\/CARDINAL OTK CARDINAL\/CARDINAL\/CARDINAL ) .","Under LAW , as worded at the material time , if damage was caused by a public servant as a result of him \/ her giving a decision or accomplishing another official act , ORG was to be held liable only if that decision or act amounted to a breach punishable under criminal law or under any disciplinary regulations , and if the fault of the public servant had been confirmed by a judgment of a criminal court or of a competent disciplinary authority , or was otherwise established by a superior authority .","Article CARDINAL of LAW provides that any person who has a legal interest in the outcome of a case may join proceedings as a co - plaintiff or co - defendant at any stage prior to the end of the hearings before the court of second instance ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70863","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF KECHKO v. UKRAINE","importance":3,"conclusion":"Violation of P1-1;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and resides in the city of GPE , GPE .","The applicant has worked as an NORP teacher in a secondary school since DATE .","On DATE ORG adopted a new wording for LAW that provided for , in particular , the payment of certain benefits to teachers .","On DATE the applicant instituted civil proceedings in the GPE ORG of Donetsk against the GPE ORG , claiming entitlement to those benefits . The applicant maintained that he had PERCENT CARDINAL years\u2019 of service and was thus entitled to a PERCENT increase in his salary as from DATE . However , the defendant had not paid him this increase . He further maintained that the defendant had not paid him DATE bonuses for excellent work and recreation . The defendant stated that the claimed amounts could not be paid because the ORG budgets for DATE did not make any provision for such expenditures .","On DATE the court found in part for the applicant . The court rejected the applicant \u2019s claim for an excellent work bonus as such a payment required an assessment of the applicant \u2019s work which was outside the court \u2019s competence . The court also rejected the applicant \u2019s claim for unpaid benefits in DATE and CARDINAL as being out of time , according to the law on employment disputes . The court further rejected the applicant \u2019s claim for benefits after DATE as LAW , adopted in DATE , had suspended them . The court , however , awarded the applicant the claimed increase in salary for the period DATE and DATE .","NORP The applicant appealed against this decision to ORG .","On DATE the regional court quashed the decision of the first instance court and remitted the case for a fresh consideration . The court noted , in particular , that LAW had entered into force on DATE ; therefore the first instance court had erroneously overlooked the period DATE .","On DATE the GPE ORG of Donetsk ruled against the applicant . The court found that , under the transitional clauses of LAW , the provision entitling the applicant to benefits would only resume force on DATE . Thus , at the time of the examination of the claim , there was no legal basis for it .","On DATE , ORG upheld the decision of the first instance court . It observed that the claims of the applicant for the periods prior to the adoption of LAW could not be satisfied , since at the time of the consideration of the case the relevant provisions of LAW had been suspended by LAW . This decision was final .","At the material time , Article CARDINAL of LAW of GPE provided that employees could institute proceedings in respect of an employment dispute within DATE from the date on which they learned or could have been expected to learn that there had been an infringement of their rights . By an LAW DATE , this article was supplemented by a provision repealing time - limits for disputes concerning salary arrears .","Article CARDINAL of the Education ( LAW DATE provided for a PERCENT increase in salary for teachers who had worked in the education system for DATE . The same article provided for an DATE payment for recreation and an DATE bonus for the performance of excellent work .","DATE and DATE these provisions were suspended by LAW mentioned below .","The second paragraph of LAW of CARDINAL DATE provided that teachers of ORG and municipal secondary schools would be paid their salaries and benefits under LAW out of ORG . The transitional clause of the former Act stipulated that LAW would enter into force on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71216","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF KOZHANOVA v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1 (non-enforcement of one judgment);Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award (global)","judges":"","text":["The applicant was born in DATE and lives in the village of Ivanivka , the GPE region of GPE .","On DATE ORG ordered the ORG to supply the applicant with QUANTITY of coal .","On DATE ORG instituted enforcement proceedings in respect of that judgment .","On DATE ORG informed the applicant that the judgment could not be enforced due to the large number of enforcement proceedings against the debtor and the fact that the procedure for the forced sale of assets belonging to the debtor had been suspended because of the moratorium on the forced sale of property belonging to ORG enterprises introduced by the PERSON of DATE .","On DATE the judgment was enforced in full .","On DATE the same court ordered the Mine to supply the applicant with another QUANTITY of coal .","On DATE ORG instituted enforcement proceedings in respect of the judgment of DATE .","On DATE that judgment was also enforced in full .","NORP The relevant domestic law is summarised in the judgment of Romashov v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-138929","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2013,"docname":"I\u013bJINS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Ineta Ziemele;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Paul Mahoney;Robert Spano;Vincent A. De Gaetano","text":["NORP The applicant , Mr ORG , is a NORP national born in DATE currently being detained in a prison in GPE . He was represented before the ORG by Ms B. Didrihsone , a lawyer practising in GPE .","It appears that the applicant was held in pre - trial detention in ORG from DATE to DATE and from CARDINAL DATE to DATE .","During these periods the applicant was placed in various disciplinary cells on QUANTITY occasions , for a total of DATE . The first time he was detained in a disciplinary cell was on DATE , as punishment for a disciplinary offence ( not complying with a warden \u2019s instructions to stay in the cell allocated to him ) .","The applicant submitted that the conditions in the disciplinary cells in ORG had been as follows . There had been no natural light , as the window in each cell had been covered by a metal plate ; the artificial lighting provided had not been sufficient . The cells had been damp and stuffy , as there had been no ventilation . Paint had chipped off every surface . The walls and ceiling had been mouldy . The toilets had not been partitioned , had been visible from corridor and there had been no toilet seats . There had been no sinks either ; the water supply had been mounted above the toilets . The cells had been infested with insects and bugs .","On DATE the applicant lodged a complaint with ORG ( ORG birojs ) , among other things , about the conditions of detention in the disciplinary cells in FAC .","On DATE the applicant was informed that the ORG had opened an inquiry .","On DATE the ORG delivered his opinion . He mentioned that on DATE his employees had visited the disciplinary cells in FAC , and had described the conditions there as follows . The cells had measured QUANTITY m. The toilets had not been partitioned , had been visible through a window in the door and there had been no toilet seats . There had been no sinks either ; the water supply had been mounted above the toilets . There had been one foldable plank bed and a small table , but no other furniture . Paint had chipped off part of the walls . The ceiling had been cracked and mouldy . The cells had been damp , as ventilation ( natural and artificial ) had not been sufficient . The cells had not been well - lit ( CARDINAL light bulb above each door ) . There had been a window in each cell but it had been covered with a metal plate , meaning there had been no natural light .","The ORG concluded that the conditions in the cells did not comply with either domestic law or international standards . He advised the applicant to institute administrative proceedings under LAW ( an \u201c action of a public authority \u201d ) by lodging a complaint with the head of ORG ( PERSON vietu p\u0101rvalde ) and subsequently with the administrative courts .","On DATE the applicant lodged a complaint with ORG about the conditions of detention in FAC . He indicated that his complaint related to an \u201c action of a public authority \u201d ( faktisk\u0101 r\u012bc\u012bba ) and claimed compensation in the amount of CARDINAL NORP lati ( ORG ) ( MONEY ( ORG ) ) .","On DATE ORG dismissed the applicant \u2019s complaint and considered that the conditions in the disciplinary cells complied with domestic law . The applicant was informed that he had DATE to appeal against this decision to ORG ( ORG rajona tiesa ) .","NORP The applicant had lodged an application with ORG prior to submitting his complaint to ORG . He subsequently amended his application on CARDINAL occasions and asked to be exempted from the payment of ORG duty ( court fees ) .","On DATE ORG stayed the proceedings and requested that the relevant authorities submit information .","On DATE ORG decided to exempt the applicant from the payment of ORG duty , accepted his application and commenced the administrative proceedings ( under case no . ACARDINAL ) . His application was deemed to have been submitted on DATE , the date of his initial application .","It appears that hearings were scheduled for DATE and DATE . It is not clear why these did not take place . The case was eventually heard on DATE .","On DATE the ORG delivered a judgment upholding the applicant \u2019s claim . The court largely relied on the Ombudsman \u2019s conclusions and found that the applicant \u2019s account of the conditions largely coincided with the conditions as established by the ORG \u2019s inquiry . The court awarded compensation for non - pecuniary damage in the amount of ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) .","The applicant and his representative , a ORG - appointed lawyer , did not lodge an appeal against this judgment , but ORG did . It appears that an appeal hearing was scheduled for DATE , but did not take place . The case was eventually heard on DATE .","On DATE ORG ( NORP apgabaltiesa DATE the ORG \u201d ) delivered a judgment quashing the lower court \u2019s ruling and upholding the applicant \u2019s claim in part . It specified that the claim concerned an action of a public authority ( ORG ) , and examined its lawfulness . ORG took into account the lack of toilet partitioning and the fact that the toilets did not have seats , that the water supply had been mounted above the toilets , and that there had been inadequate lighting and ventilation . These conditions were considered to be degrading , and their cumulative effects contrary to LAW . Therefore , the action of a public authority ( ORG ) in placing the applicant in those conditions was found to be unlawful .","As concerns compensation for non - pecuniary damage , ORG noted that an adequate award of compensation would be ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . However , given that the applicant had been placed in disciplinary cells for his own actions and had waited for DATE after his initial placement there before lodging his first complaint , the amount had to be reduced in accordance with domestic law . ORG awarded the applicant ORG ( approximately ORG CARDINAL ) and dismissed the remainder of his non - pecuniary damage claim ( ORG CARDINAL , approximately ORG CARDINAL ) . An appeal on points of law could be lodged against this judgment within DATE of its delivery .","The applicant \u2019s lawyer lodged an appeal on points of law , indicating that the applicant considered ORG ruling to be unlawful . No further reasons were provided .","By a final decision on DATE , CARDINAL senators of the ORG of ORG refused to open cassation proceedings on the basis of section CARDINAL(CARDINAL)(CARDINAL ) and section CARDINAL.CARDINAL of LAW . The proceedings did continue , however , as regards the applicant \u2019s ( other ) claim examined within the same proceedings about an action of a public authority ( ORG ) as regards its refusal to transfer him to another cell or to another prison for security reasons . The applicant eventually withdrew that claim , and on DATE the ORG of ORG adopted a final decision relating to it .","On DATE the applicant \u2019s lawyer attempted to lodge an ancillary complaint ( blakus s\u016bdz\u012bba ) against the ORG \u2019s decision . She explained that she had not been made aware of ORG judgment until DATE . She could not submit a fully reasoned appeal on points of law within the necessary time - limit , so in accordance with the applicant \u2019s instructions , she had lodged the appeal on points of law without specifying its scope . In doing so , she had relied on section CARDINAL of LAW . She requested that the ORG \u2019s ruling be quashed .","On DATE these submissions were returned back to the applicant \u2019s lawyer with a handwritten note by a judge stating : \u201c in accordance with section CARDINAL(CARDINAL ) of LAW [ the complaint ] is to be considered as not submitted and to be returned \u201d .","It appears that the applicant attempted to lodge another appeal on points of law , which was received at ORG on DATE . No further information has been submitted to the ORG in this regard .","The relevant parts of LAW ( NORP procesa likums ) , which took effect on DATE , have been summarised in the case of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) .","In accordance with sections CARDINAL(CARDINAL ) and CARDINAL of LAW , an appellate court judgment is to be sent to parties within DATE of its delivery , unless it has been served on them in person .","Section CARDINAL(CARDINAL ) provides , inter alia , that an ancillary complaint lodged against a final decision must be considered as not submitted and returned .","Section CARDINAL(CARDINAL)(CARDINAL ) provides that an appeal on points of law must contain the extent to which a judgment is appealed .","Section CARDINAL(CARDINAL)(CARDINAL ) provides that an appeal on points of law must indicate what provisions of substantive or procedural law a court has breached and how this breach is manifested .","Section CARDINAL(CARDINAL ) provides that where an appeal on points of law does not comply with the criteria laid down in DATE , CARDINAL , DATE , DATE or CARDINAL of section CARDINAL ) a senator must take a decision not to proceed with it ( atst\u0101t bez virz\u012bbas ) . In the decision a time - limit for rectifying the deficiencies shall be set .","Section CARDINAL provides that CARDINAL senators shall refuse to open cassation proceedings ( atteikties ierosin\u0101t kas\u0101cijas tiesved\u012bbu ) if an appeal on points of law does not comply with the criteria laid down in sections CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101983","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2010,"docname":"GOCHAYEVA v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant , Ms Ayshat PERSON , is a NORP national who was born in DATE and lives in the town of GPE in the Kabardino - Balkaruya Republic . She is represented before the Court by Mr I. GPE , a lawyer practising in GPE . The respondent Government were represented by PERSON , former Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was the owner of a flat in a block of flats in FAC in the town of GPE in the Kabardino - Balkaruya Republic . She lived in the flat with her family .","In DATE some of the residential quarters of Tyrnyauz were flooded as a result of a powerful mudslide . Many buildings were destroyed or damaged and many people were killed or injured . The mudslide also destroyed a bridge in the vicinity of the applicant \u2019s block of flats .","On DATE ORG decided to build a new bridge . The municipal land on which the applicant \u2019s block of flats was situated was allocated for that purpose . ORG sued the residents for eviction .","On DATE ORG of the Kabardino - Balkariya Republic ordered that the applicant \u2019s family be evicted from their flat and that ORG provide them with other comfortable housing of an equal value . Eviction of other CARDINAL families from the same block of flats or from the neighbouring blocks of flats was ordered by the same judgment . On DATE the court issued a writ of execution .","The applicant appealed .","On DATE the bailiffs\u2019 service opened enforcement proceedings . On DATE the bailiffs forcibly evicted the applicant \u2019s family from the flat . No substitute housing was provided .","On DATE the applicant \u2019s block of flats was demolished .","On DATE ORG of the Kabardino - Balkariya Republic quashed the judgment of DATE . It held that ORG had unlawfully joined the proceedings concerning CARDINAL families and had ordered their eviction without taking into account particular circumstances of each family , that it had not informed some of the defendants about the date of the hearing , that the defendants had not been offered a choice between monetary compensation and substitute housing . It further held that ORG should have identified a specific flat for the applicant \u2019s family and that the eviction should have been made conditional on making that flat available or on payment of monetary compensation .","The case was remitted before ORG for a new examination .","On DATE the applicant lodged a counterclaim for damages . She submitted that the eviction of her family and the demolition of her flat had been unlawful for the following reasons . Firstly , at the time of the eviction the eviction order had not yet been enforceable because an appeal had been pending against the judgment of CARDINAL DATE . Secondly , no substitute housing had been provided . She argued that she had been unlawfully deprived of her home and property and claimed MONEY ( RUB ) in respect of pecuniary damage representing the cost of a flat of an equal value . She also claimed RUB CARDINAL in respect of non - pecuniary damage against ORG and the bailiffs\u2019 service .","On DATE the ORG of the Kabardino - Balkariya Republic allowed the applicant \u2019s claims in part . The court found that the expropriation of the applicant \u2019s flat and the eviction of her family had been necessary for the purpose of bridge construction . However , the eviction had been carried out unlawfully as the applicant had not received any prior compensation or been offered substitute housing . It ordered that the construction company that had demolished the applicant \u2019s block of flats pay her RUB CARDINAL in respect of pecuniary damage . It further rejected the applicant \u2019s claim in respect of non - pecuniary damage , finding that there had been no evidence of unlawfulness in the acts of ORG and the bailiffs\u2019 service . The fault belonged to ORG against which no claim for non - pecuniary damage had been lodged .","The applicant did not appeal against that judgment and it became final and enforceable DATE .","The construction company lodged an application for supervisory review of the judgment which was examined on DATE by the ORG of ORG of the Kabardino - Balkariya Republic . The ORG amended the operative part of the judgment of DATE , ordering that the award in respect of pecuniary damage should be payable by ORG .","The applicant received the award on DATE .","No one shall be deprived of his property except on the basis of a court order . Expropriation of property in the public interest shall be conditional on prior and full compensation ( LAW ) .","A judgment of the first - instance court becomes final and enforceable after the expiry of the time - limit for lodging an appeal or after it has been upheld by the appeal court ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL of LAW of DATE ) .","In exceptional cases , where a delay in enforcement can cause considerable damage or impossibility of enforcement , a court may order , at the plaintiff \u2019s request , immediate enforcement of the judgment . Such an order shall be made in the operative part of the judgment or in a separate decision which is amenable to appeal . The decision shall be taken after a hearing and the parties shall be appraised of its date ( ORG and CARDINAL ) .","A writ of execution is issued by a court after the judgment has become final or an order for immediate enforcement has been made ( LAW ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-119416","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2013,"docname":"CASE OF SAVRIDDIN DZHURAYEV v. RUSSIA","importance":1,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award","judges":"Dmitry Dedov;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Nicolas Bratza;Ksenija Turkovi\u0107","text":["The applicant was born in DATE . He is presently serving a prison sentence in GPE .","Until DATE the applicant was living in his native village of GPE in LOC of NORP . He was a merchant at the local food market .","The events preceding the applicant \u2019s departure from NORP were described by him as follows .","DATE the applicant attended a mosque , where he was studying the PERSON under the tutorship of PERSON . The latter was detained by local police and died in detention in DATE . Before his death PERSON PERSON had reportedly been ill - treated ( see paragraph CARDINAL below ) .","Following Mr PERSON \u2019s death , the NORP authorities started targeting his followers . The applicant fled the country , fearing prosecution on grounds of his religious activities .","The applicant arrived in GPE in DATE and made a living from various low - skilled jobs in the GPE suburbs .","On DATE the Prosecutor \u2019s Office of NORP brought criminal proceedings against the applicant and authorised his detention pending trial . The applicant was charged under LAW and CARDINAL \u00a7 CARDINAL of LAW of NORP with forming , some time in DATE , together with several other individuals , a \u201c criminal conspiracy \u201d named \u201c Bayat \u201d ( PERSON ) , which later joined a \u201c criminal armed group \u201d named \u201c ORG \u201d ( \u201c the IMU \u201d ) . The second charge against the applicant concerned his alleged involvement in an armed attack carried out on DATE on CARDINAL members of the regional parliament .","On DATE ORG issued a warrant for the applicant \u2019s arrest based on the charges mentioned above and put his name on the list of \u201c wanted persons \u201d .","The NORP police apprehended the applicant on DATE in GPE pursuant to an international search warrant issued by the NORP authorities . He remained in detention pending extradition until CARDINAL DATE ( see paragraphs CARDINAL below ) .","On DATE and CARDINAL DATE the Deputy Prosecutor General of NORP asked his NORP counterpart to order the applicant \u2019s extradition to NORP .","On DATE the Deputy Prosecutor General of GPE ordered the applicant \u2019s extradition . He found , inter alia , that the applicant had been charged in NORP with involvement since DATE in a criminal organisation , the IMU . The Deputy Prosecutor General also noted that at DATE the applicant had moved to GPE , where he had founded an armed cell of the IMU and that in DATE he had transferred MONEY United States dollars per month to the IMU leaders in GPE , thus fuelling their terrorist activities , such as the murdering of ORG officials . The Deputy Prosecutor General considered that the applicant \u2019s acts were also punishable under LAW and that his extradition could not be prevented by a crime he may have committed in GPE , since no investigation or prosecution had been initiated in that respect . Nor did he find any obstacle to the applicant \u2019s extradition in either international treaties or legislation of GPE .","The applicant complained about the extradition order to ORG ( \u201c the ORG \u201d ) , stating that the NORP authorities would subject him to torture with a view to making him confess to a crime he had not committed . He cited extensive case - law of the ORG establishing the risk of torture to which certain applicants in a similar position would have been subjected in the event of extradition to that country ( PERSON v. GPE , no . CARDINAL\/CARDINAL , CARDINAL DATE , and GPE v. GPE , no . MONEY , CARDINAL DATE ) . The applicant also emphasised the contradictions and even the absurdity of certain charges brought against him in NORP , according to which he had been actively involved in terrorist activities since DATE when he was still a small child .","NORP The Deputy Prosecutor General provided ORG with a letter signed by his counterpart in GPE , which contained , inter alia , the following assurances :","\u201c We guarantee that in accordance with the norms of international law [ the applicant ] will be provided with all opportunities to defend himself in GPE , including through the assistance of a lawyer . He will not be subjected to torture or cruel , inhuman or degrading treatment or punishment ( NORP Convention for ORG , and relevant ORG conventions and protocols thereto ) .","LAW does not provide for the death penalty in respect of the crimes imputed to [ the applicant ] .","ORG guarantees that the aim of the extradition request in respect of [ the applicant ] is not his persecution on political grounds , or for reasons of his race , religious beliefs , nationality or political opinions .","... NORP undertakes to prosecute [ the applicant ] only for the crimes which constitute the basis of his extradition and that [ the applicant ] will not be handed over to a third State without the consent of GPE and will be free to leave the territory of GPE after having served his sentence . \u201d","On DATE ORG held a public hearing . It allowed the request by the defence to question PERSON , in her capacity as expert of ORG , about the situation in GPE . The expert responded to the questions at the public hearing , explaining the details of CARDINAL recent judgments delivered by the ORG in connection with the prospective extradition to NORP of the applicants concerned and the legal implications for GPE ( PERSON , cited above ; PERSON , cited above ; PERSON v. GPE , no . CARDINAL\/CARDINAL , DATE ; and ORG v. GPE , no . CARDINAL , DATE ) .","By a judgment adopted on DATE , ORG upheld the extradition order , finding no obstacle to the applicant \u2019s extradition to NORP . The applicant \u2019s arguments , based on GPE \u2019s obligations under the Convention and the ORG \u2019s case - law , were dismissed by ORG in the following terms :","\u201c ... the arguments that the applicant might be persecuted on religious grounds and regarding a serious risk of torture in the course of criminal prosecution in NORP ... are considered by the court to be unfounded since those arguments constitute assumptions that are in no way corroborated ; quite to the contrary , they are completely rebutted by the case materials , which have been examined by the court , and in particular by the written guarantees provided by the Deputy Prosecutor General of GPE ...","The arguments ... that torture and persecution on religious and political grounds take place in GPE as confirmed by documents of ORG and other organisations for the defence of human rights ... are considered by the court to be unfounded , as those documents relate to other persons , but not to [ the applicant ] ; moreover , those arguments are negated by the aforementioned written guarantees of ORG . \u201d","On DATE ORG upheld ORG decision . The applicant \u2019s argument that his extradition would violate LAW CARDINAL of the Convention was dismissed by ORG by sole reference to the text of the written guarantees provided by ORG .","On DATE the applicant applied to the GPE branch of ORG ( \u201c the ORG \u201d ) for refugee status . He argued that he had been persecuted in NORP on the grounds of his religious beliefs and that he would be subjected to torture in the event of extradition .","On DATE the GPE branch of the ORG dismissed the application . The applicant was notified of the decision on DATE .","On DATE the Deputy Director of the ORG dismissed an appeal lodged by the applicant against that decision . He reminded the applicant that the IMU was considered by the supreme courts of both NORP and GPE as an organisation carrying out terrorist activities . While noting the extensive international criticism of the use of torture and the impunity of the ORG officials responsible in GPE , the Deputy Director of the ORG found no well - founded reason for fearing that the applicant would be persecuted on religious grounds . Noting that the great majority of the population of NORP were NORP , he found it unlikely that the applicant would be persecuted solely on the basis of his NORP beliefs . As to the authorities\u2019 attempt to strengthen control over religious beliefs , this was considered to be pursuing the understandable aim of limiting the influence of radical ORG , including the IMU . He concluded that the applicant was not eligible for refugee status and that his application had been motivated by his intention to escape criminal liability in NORP . He noted at the same time that the existence of a well - founded fear of becoming a victim of torture or ill - treatment might be a ground for granting the applicant temporary asylum in GPE under section CARDINAL of LAW .","On DATE the applicant appealed against the ORG \u2019s decision to ORG of GPE . He argued that the ORG had not made a thorough and adequate analysis of the situation in NORP and taken due account of the information provided by various international sources in that connection . He further submitted that the ORG had presumed him guilty of the offences that had been imputed to him by the NORP authorities and had in effect upheld the version of the facts as presented by ORG .","On DATE ORG upheld the ORG \u2019s decision of CARDINAL DATE . It referred to the arguments contained in that decision , finding them convincing and considering that the applicant had failed to provide evidence to the contrary . On DATE the court \u2019s decision was upheld on appeal by ORG .","On DATE the applicant applied to the ORG for temporary asylum in GPE . On DATE ORG in GPE informed the applicant \u2019s representative that he met the criteria established by its statute and was eligible for international protection under its mandate .","On DATE the GPE branch of the ORG granted the applicant temporary asylum in GPE and issued a certificate to that effect . The certificate was recorded under reference \u0412\u0423 \u2116 DATE and delivered to the applicant on DATE in his lawyer \u2019s presence .","Following the applicant \u2019s apprehension in GPE ( see paragraph CARDINAL above ) , on DATE the ORG of GPE ordered his detention pending extradition .","On DATE the same court extended the applicant \u2019s detention until DATE . The applicant lodged an appeal against that decision on DATE . It was dismissed by ORG on DATE .","On DATE the ORG further extended the applicant \u2019s detention until DATE . The applicant appealed against that decision on DATE . ORG dismissed the appeal on DATE .","On DATE ORG further extended the applicant \u2019s detention until DATE . On CARDINAL DATE the applicant lodged an appeal against that decision , which was dismissed by ORG of GPE on DATE .","On CARDINAL DATE ORG ordered the applicant \u2019s release under a personal guarantee provided by his lawyer in accordance with LAW .","According to the applicant \u2019s written testimony and the complementary information collected by his representatives from witnesses and other available sources , his abduction and transfer to NORP took place as follows .","At TIME on DATE the applicant and a friend were driving in the south - west district of GPE when their car was blocked by a mini - van in Michurinskiy avenue . According to the details provided by the applicant \u2019s lawyer to the police and investigative authorities , the incident took place DATE The applicant and his friend got out of the car and tried to escape . They were followed by CARDINAL unidentified men who fired QUANTITY shots . The applicant \u2019s friend managed to escape , while the applicant was stopped , beaten up with a truncheon and forced into the minivan by the same men , who did not identify themselves .","The applicant was kept in the mini - van for TIME a day . The individuals who had apprehended him subjected him to torture and illtreatment . They beat him up , put a gun to his head and threatened to kill him unless he agreed to return to his home country . The applicant showed them the temporary asylum certificate delivered by the ORG , but they just laughed at him in response . The person who put questions to the applicant was of NORP origin .","NORP In TIME of the following day the applicant was taken by his kidnappers directly to the airfield of GPE \u2019s GPE airport , without going through the usual border and customs formalities and security checks . The applicant was handed over to a NORP patrol , who forced him into a nearby aircraft without presenting a ticket or any travel documents .","At TIME DATE , the aircraft arrived at the airport of GPE in GPE , where the applicant was handed over to the NORP authorities . His requests for a lawyer were refused . According to the written testimony of the applicant \u2019s father , the applicant was detained and questioned for an unspecified period of time at GPE police station . The applicant \u2019s father testified in writing that police officers , one of whom was identified as PERSON , had severely ill - treated the applicant in order to make him confess to crimes he had never committed and state that he had come back to NORP voluntarily . He further testified that on DATE the investigator , ORG , had refused to allow him to meet with his son in detention , referring to the father \u2019s failure to help the authorities apprehend the applicant and bring him back to the country .","The Government \u2019s submissions in respect of the applicant \u2019s account of the facts were limited to the following .","Following enquiries from the ORG , letters received from the ORG dated DATE and CARDINAL DATE contained no information about the applicant \u2019s whereabouts or his crossing of the State border . The Government further submitted that the applicant \u2019s rights and freedoms had not been restricted in any way after his release on CARDINAL DATE , that the law had not obliged the authorities to ensure any surveillance over the applicant , that his extradition or expulsion had been suspended pursuant to the interim measures ordered by ORG and that he had not , therefore , been handed over to NORP through the extradition procedure .","On DATE the Government retransmitted the official information provided on DATE by ORG to his NORP counterpart , according to which the applicant had \u201c voluntarily surrendered \u201d on DATE to ORG for the Fight against Organised Crime ( \u0420\u041e\u0411\u041e\u041f ) and had been detained in temporary detention facility no . CARDINAL ( ORG \u2116 CARDINAL ) of GPE .","According to the latest information received from the Government on DATE , the inquiry into the applicant \u2019s abduction and transfer was still pending .","Once informed of the applicant \u2019s abduction on TIME of CARDINAL DATE , his representatives immediately contacted the competent NORP authorities , asking them to take urgent measures to prevent the applicant \u2019s forcible removal from NORP territory .","CARDINAL on DATE , PERSON faxed CARDINAL formal requests to that effect to the head of ORG , the Director of the ORG , ORG and ORG at the ORG , respectively . She also solicited the assistance of the Commissioner for Human Rights of GPE .","In her letter to the head of ORG , the applicant \u2019s representative stated the circumstances of the applicant \u2019s abduction . She also reminded him of the applicant \u2019s legal status as a person to whom temporary asylum had been granted by the ORG and interim measures had been applied by the ORG to prevent his extradition . The letter concluded as follows :","\u201c In view of [ those circumstances ] there are weighty reasons to fear that an abduction attempt has been made in respect of [ the applicant ] with a view to his subsequent illegal transfer from GPE to GPE , whose authorities have requested his extradition for criminal prosecution .","The situation is aggravated by the fact that the applicant \u2019s brother [ Sh . T. ] disappeared on DATE in GPE and , according to the information provided by his wife , was remanded in custody on DATE in GPE , GPE , where he is still being detained . Some time earlier , on DATE , CARDINAL other asylum seekers who had been protected against forcible transfer by [ the interim measures decided by ] ORG , disappeared in GPE : a NORP national , PERSON , and an NORP national , PERSON They were both transferred to NORP and remanded in custody . Any claim that they left voluntarily must be excluded as they did not have any documents permitting them to cross the State border of GPE : PERSON national passport was being held by the GPE branch of the ORG , while PERSON had lost his passport DATE previously . ... \u201d","DATE . On DATE , the Commissioner for Human Rights of the Russian Federation also sent a letter to the head of ORG , which read as follows :","\u201c ... There are well - founded reasons to fear that an attempt might be made illegally to transfer [ the applicant ] to NORP , where his life is threatened .","DATE , DATE , [ the applicant \u2019s representative ] asked you to take urgent measures in order to prevent [ the applicant \u2019s ] forcible transfer from the territory of GPE , and above all , through the airports of GPE .","I ask you to consider the [ above ] request as soon as possible and to take all possible measures with a view to finding [ the applicant ] and preventing his forcible transfer from the territory of GPE .","I ask you to inform me of the results following your consideration of the request . \u201d","There is no information about any protective measure taken by the authorities concerned in response to any of those requests .","On DATE ORG at the ORG replied to the applicant \u2019s representative that pursuant to the interim measures taken by the ORG , the NORP authorities were abstaining from his extradition and that the relevant instruction had been sent to ORG ( ORG ) , ORG and ORG .","Following the applicant \u2019s complaint about his abduction in the present case and similar events in certain other cases , on DATE the Registrar of the ORG sent a letter to ORG at the ORG . The letter read as follows :","\u201c The President of the ORG , Sir PERSON , has instructed me to express on his behalf his profound concern at the applicant \u2019s disappearance in GPE and his subsequent transfer to NORP notwithstanding the interim measures indicated under LAW .","The President has noted that since the ORG \u2019s judgment in the PERSON case ( no . CARDINAL\/CARDINAL , DATE ) where it held GPE responsible for a violation of LAW of the applicant \u2019s unexplained abduction and transfer to NORP by unidentified persons , the ORG has been confronted with repeated incidents of that kind in CARDINAL other cases , including the above - mentioned case ( the other CARDINAL cases are : PERSON v. GPE , no . CARDINAL ; PERSON GPE , no . MONEY ; and NORP v. GPE , no . CARDINAL ) . The explanations so far provided by the Government do not clarify how applicants could against their will be moved across the NORP State border notwithstanding the ORG \u2019s official assurances that no extradition would be effected pending examination of their cases by the ORG .","The President is deeply disturbed at those developments . He is particularly concerned about their implications for the authority of the ORG and possible continuation of such unacceptable incidents in cases of other applicants to whom the interim measures still apply on account of the imminent risk of violation of their rights under LAW and CARDINAL of the Convention in the countries of destination . As an indication of the seriousness with which he views this turn of events , the President has asked that the Chairman of ORG , the President of ORG and the Secretary General of ORG be informed immediately .","The President also notes that ORG has requested additional observations from the Government to address this worrying and unprecedented situation and expects the NORP competent authorities to provide the ORG with exhaustive information about the follow - up given to the incidents in GPE . In the meantime , your authorities\u2019 attention is drawn to the fact that interim measures continue to apply under Rule CARDINAL in CARDINAL other NORP cases concerning extradition or expulsion . Those cases are listed in appendix to the present letter . \u201d","On DATE the Representative of GPE at the ORG informed the Registrar in response that appropriate information would be submitted \u201c upon receiving the necessary data from the relevant authorities \u201d .","On DATE and DATE ORG informed the applicant \u2019s representative that her complaint about the applicant \u2019s abduction had been sent to the GPE South - West Police Department ( \u0423\u0412\u0414 \u043f\u043e LOC GPE \u041c\u0412\u0414 PERSON \u043f\u043e \u0433. PERSON ) and then to LOC of the South - West Administrative Circuit of Moscow ( ORG \u043f\u043e \u042e\u0417\u0410\u041e ORG PERSON ) . On DATE the latter decided to transmit the file to the Nikulinskiy ORG of FAC ORG \u043f\u043e \u042e\u0417\u0410\u041e ORG LANGUAGE \u0420\u0424 \u043f\u043e \u0433. PERSON hereinafter referred to as \u201c ORG \u201d ) .","Under LAW , the senior investigator of ORG , GPE , conducted a pre - investigation inquiry ( \u043f\u0440\u043e\u0432\u0435\u0440\u043a\u0430 \u0441\u043e\u043e\u0431\u0449\u0435\u043d\u0438\u044f \u043e \u043f\u0440\u0435\u0441\u0442\u0443\u043f\u043b\u0435\u043d\u0438\u0438 \u2013 \u201c the inquiry \u201d ) .","On DATE PERSON refused to open a criminal investigation in respect of the applicant \u2019s alleged abduction on the grounds of absence of corpus delicti . After a brief recapitulation of the facts , as presented by the applicant \u2019s representative , the senior investigator concluded as follows :","\u201c ... having analysed the materials of the inquiry , the investigating authority finds at present no evidence of crime under ORG CARDINAL and CARDINAL of LAW of GPE , because it has not been objectively established whether the applicant remains on the territory of GPE or has crossed the border of GPE . Information has also been received in the course of the inquiry that no shootings or abductions of persons have been reported on the territory where [ the applicant ] was allegedly abducted . The investigating authority does not exclude the possibility that following [ the applicant \u2019s ] release from detention he might have staged his abduction with a view to escaping criminal liability for crimes he had committed on the territory of GPE . \u201d","On DATE the head of ORG , PERSON , quashed the above decision and sent the case back to the same senior investigator for a further inquiry . His decision was reasoned as follows :","\u201c The investigator \u2019s refusal to institute criminal proceedings is unfounded and must be quashed . In the course of a further inquiry it is necessary to obtain replies to all requests for information that were sent on the matter and to proceed to an additional interview of [ the applicant \u2019s representative ] . \u201d","On DATE the head of ORG ( ORG PERSON \u043f\u043e \u0433. PERSON ) also requested a further inquiry into the matter . Furthermore , on DATE , the deputy to the Nikulinskiy ORG ( \u0437\u0430\u043c\u0435\u0441\u0442\u0438\u0442\u0435\u043b\u044c \u041d\u0438\u043a\u0443\u043b\u0438\u043d\u0441\u043a\u043e\u0433\u043e \u043c\u0435\u0436\u0440\u0430\u0439\u043e\u043d\u043d\u043e\u0433\u043e \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 ) asked the investigator to ascertain whether the NORP authorities had been involved in the applicant \u2019s alleged abduction .","On DATE the senior investigator , PERSON , again refused to open a criminal investigation by a new decision , which repeated word for word his earlier decision of CARDINAL DATE ( see paragraph QUANTITY above ) .","On DATE the deputy head of ORG , ORG , quashed that decision , also repeating word for word the previous decision by the head of ORG of DATE , which had quashed PERSON first decision of DATE ( see paragraph CARDINAL above ) .","On DATE the senior investigator , PERSON , yet again refused to open a criminal investigation in respect of the applicant \u2019s abduction . The text of that decision was not submitted to the ORG .","On DATE the deputy head of ORG , ORG , again quashed that decision and demanded that the following procedural steps be taken :","\u201c In the course of a further inquiry a second request must be sent to the law - enforcement bodies of GPE in order to elucidate the following questions : has [ the applicant ] crossed the border of NORP ; is [ the applicant ] being detained in a pre - trial detention facility ; and have criminal proceedings been brought against [ the applicant ] ?","A separate set of proceedings needs to be instituted on the basis of the materials concerning the possible unlawful crossing of the NORP border by the applicant ... and the materials sent to the ORG with a view to carrying out an inquiry under LAW .","... [ the applicant \u2019s representative ] needs to be questioned on the following points : is she still a representative of [ the applicant ] and can she clarify anything about [ his ] crossing of the border ? A number of other verification measures need to be taken with a view to adopting a lawful and well - founded decision . \u201d","On DATE an investigator of ORG , ORG , refused to bring criminal proceedings in respect of the applicant \u2019s abduction . After a brief statement of facts , the decision read as follows :","\u201c According to information received from ORG of ORG of GPE ( \u201c the ORG \u201d ) , the law of GPE does not provide for the names of persons crossing the State border of GPE to be recorded . In accordance with section PERSON ) of LOC of GPE , only the number of persons crossing the border is monitored .","It is therefore impossible to confirm or refute the information about the crossing of the State border by [ the applicant ] .","Following a request for information about [ the applicant ] , a national of GPE , ORG of GPE answered that the aforementioned request could not be satisfied as it had been made in breach of LAW DATE for legal assistance and legal relations in civil family and criminal cases .","The police authorities in charge of the relevant territory have not received any information during the relevant period about unlawful acts involving either the use of a weapon or the abduction of persons in the circumstances indicated in the application .","The GPE and Regional branch of the ORG has in its possession material relating to verifications of the possible unlawful crossing of the border of GPE by [ the applicant ] .","Given that [ the applicant ] is subject to an international search warrant for the commission of crimes under LAW and CARDINAL \u00a7 CARDINAL of LAW [ of NORP ] , he might have staged his abduction with a view to escaping criminal liability for crimes he had committed on the territory of GPE .","Thus , the preliminary inquiry has established no objective data indicative of [ the applicant \u2019s ] abduction . \u201d","The investigator sent the above decision to the applicant \u2019s representatives on DATE .","On DATE the Government informed the ORG that similar inquiries had continued and were still pending . No further decisions by the investigation authorities or documents were provided to the ORG . According to the ORG \u2019s information , the inquiry found that the applicant had illegally crossed the NORP State border , surrendered to the NORP authorities and had been placed in detention . The investigator \u2019s decision of CARDINAL DATE refusing to open a criminal investigation was again quashed by his superior on an unspecified date . According to the Government , the latest decision refusing to open a criminal investigation had been issued on DATE by the head of ORG but had yet again been quashed . As a result , the file had been sent back to the investigators for an additional inquiry .","The Government also specified that the ORG had been asked to check the information about the applicant \u2019s illegal crossing of the State border . Another request had been sent to NORP authorities to identify the applicant \u2019s whereabouts in NORP . However , as of DATE no responses had been received to either request .","The applicant \u2019s representatives informed the ORG that on DATE the ORG of NORP had started its examination of a criminal case against CARDINAL individuals , including the applicant . The applicant had been charged with various crimes under Articles CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL , CARDINAL \u00a7 CARDINAL ( a ) , CARDINAL \u00a7 CARDINAL ( c ) , CARDINAL and CARDINAL \u00a7 CARDINAL of LAW NORP .","Public hearings were held by the court as from DATE . Lawyer PERSON , who took part in the trial , provided the applicant \u2019s representatives with a written testimony showing that the applicant had not pleaded guilty at the trial . According to NORP T. , the applicant submitted that he had been abducted in GPE , forcibly transferred to NORP and tortured in order to make him confess to the crimes .","DATE . In DATE and DATE TIME relatives of the co - accused repeatedly asked ORG , PERSON . PERSON , and the President of ORG , GPE , to order a forensic medical examination of the CARDINAL co - accused in order to verify their allegations that they had been tortured by the authorities during the criminal proceedings . Their written request referred to the relevant provisions of the LAW and LAW , which prohibit the use of torture and exclude any evidence obtained under duress . The applicant \u2019s mother made a similar request in respect of the applicant . There is no information regarding the authorities\u2019 response to those requests .","On DATE the ORG found the applicant guilty and sentenced him to DATE imprisonment . His thirtythree co - accused were also found guilty and sentenced to various terms of imprisonment , ranging from CARDINAL to QUANTITY years .","Chapter CARDINAL of LAW ( \u201c the CCrP \u201d ) of DATE governs the procedure to be followed in the event of extradition .","An extradition decision made by ORG may be challenged before a court ( LAW ) . In that event , the extradition order should not be enforced until a final judgment has been delivered ( LAW ) .","A court must review the lawfulness and validity of a decision to extradite within DATE of receipt of a request for review . The decision should be taken in open court by a panel of CARDINAL judges in the presence of a prosecutor , the person whose extradition is sought and the latter \u2019s legal counsel ( LAW ) .","Issues of guilt or innocence are not within the scope of judicial review , which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in applicable international and domestic law ( LAW ) .","Article CARDINAL \u00a7 CARDINAL lists the conditions under which extradition can not be authorised . Thus , the extradition of the following should be refused : a NORP citizen ( LAW ( CARDINAL ) ) or a person who has been granted asylum in GPE ( LAW ( CARDINAL ) ) ; a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in GPE in connection with the same act for which he or she has been prosecuted in the requesting ORG ( LAW ( CARDINAL ) ) ; a person in respect of whom criminal proceedings can not be launched or a conviction can not become effective in view of the expiry of the statutory time - limit or for other valid grounds in NORP law ( LAW ( CARDINAL ) ) ; or a person in respect of whom extradition has been blocked by a NORP court in accordance with the legislation and international treaties of GPE ( LAW ( CARDINAL ) ) . Lastly , extradition must be refused if the act that serves as the basis for the extradition request does not constitute a criminal offence under LAW ( LAW ( CARDINAL ) ) .","In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in GPE , his extradition may be postponed until the prosecution has been terminated , the penalty has been lifted on any valid ground or the sentence has been served ( LAW ) .","DATE . In its ruling no . CARDINAL of DATE , the ORG of ORG indicated , with reference to LAW , that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture or inhuman or degrading treatment in the requesting country . Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person \u2019s life and health on account of , among other things , his or her age or physical condition . NORP authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty , subjected to ill - treatment or persecuted because of his or her race , religious beliefs , nationality , ethnic or social origin or political opinions . The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was being sought . They should take into account the testimony of the person concerned and that of any witnesses , any assurances given by the requesting country , and information about the country provided by ORG , by competent ORG institutions and by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment .","The LAW guarantees the right to liberty ( LAW ) :","\u201c CARDINAL . Everyone has the right to liberty and personal integrity .","Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . \u201d","DATE LAW provides , among other things , that everyone should be guaranteed judicial protection of his or her rights and freedoms and stipulates that decisions , actions or inaction of ORG bodies , local authorities , public associations and officials may be challenged before a court .","When performing actions requested under LAW , to which GPE and GPE are parties , an official body applies its country \u2019s domestic laws ( LAW ) .","A request for extradition must be accompanied by a detention order ( LAW ) . Upon receipt of a request for extradition , measures should be taken immediately to find and arrest the person whose extradition is sought , except in cases where that person can not be extradited ( LAW ) .","A person whose extradition is sought may be arrested before receipt of a request for his or her extradition . In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent ( LAW ) . A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed , in the territory of the other ORG , an offence for which extradition may be requested . The other ORG must be informed immediately of the arrest ( LAW \u00a7 CARDINAL ) .","A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all the requisite supporting documents within DATE of the date of placement in custody ( Article CARDINAL \u00a7 CARDINAL ) .","Article CARDINAL CARDINAL of the ORG provides that general principles and norms of international law and international treaties of GPE are a constituent part of its legislation concerning criminal proceedings . Should an international treaty provide for rules other than those established in the ORG , the former are to be applied .","LAW of the CCrP ( \u201c Measures of restraint \u201d ) governs the use of measures of restraint , or preventive measures ( \u043c\u0435\u0440\u044b \u043f\u0440\u0435\u0441\u0435\u0447\u0435\u043d\u0438\u044f ) , while criminal proceedings are pending . Such measures include placement in custody . Custody may be ordered by a court following an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of DATE imprisonment , provided that a less restrictive measure of restraint can not be used ( LAW ) . The judicial decision to place a person in custody may be appealed against to a higher court within DATE . The higher court must decide the appeal within DATE of the date on which the appeal is lodged ( LAW ) .","A period of detention pending investigation may not exceed DATE ( Article CARDINAL \u00a7 CARDINAL ) . A judge may extend that period DATE ( Article CARDINAL \u00a7 CARDINAL ) . Further extensions of DATE , or in exceptional circumstances , DATE , may only be granted if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .","Chapter DATE ( \u201c Extradition of a person for criminal prosecution or execution of a sentence \u201d ) regulates extradition procedures . Upon receipt of a request for extradition that is not accompanied by an arrest warrant issued by a foreign court , a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought . The measure must be applied in accordance with established procedure ( LAW ) . If a request for extradition is accompanied by a detention order issued by a foreign court , a prosecutor may impose house arrest on the individual concerned or place him or her in detention \u201c without seeking confirmation of the validity of that order from a NORP court \u201d ( LAW ) .","By decision no . CARDINAL-O of DATE ORG held that the absence of any specific regulation of detention matters in Article CARDINAL \u00a7 CARDINAL did not create a gap in the law that was incompatible with the constitutional guarantee against arbitrary detention . Article CARDINAL \u00a7 CARDINAL of the Minsk Convention provided that , in executing a request for legal assistance , the requested party would apply its domestic law , which in the case of GPE was the procedure laid down in the FAC procedure comprised , in particular , LAW and the norms in its LAW ( \u201c Measures of restraint \u201d ) which , by virtue of their general character and position in Part I of the LAW ( \u201c General provisions \u201d ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or the timelimits fixed in the LAW .","By decision no . CARDINAL-O - P of CARDINAL DATE , ORG held that while Articles CARDINAL and CARDINAL of ORG did not govern the procedure for detention pending the receipt of an extradition request , the applicable procedures and time - limits were to be established by domestic legal provisions in accordance with LAW . It further reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention , in that it required a court to examine whether the arrest was lawful and justified . ORG held that LAW CCrP , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure and within the time - limits established in LAW of the CCrP.","By decision no . CARDINAL - O of DATE ORG upheld the constitutionality of Article CARDINAL \u00a7 CARDINAL of the ORG , stating that this provision \u201c does not establish time - limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure , it merely confirms a prosecutor \u2019s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate the constitutional rights of [ the claimant ] ... \u201d","Article CARDINAL of ORG of DATE , which was ratified by GPE on DATE , provides as follows :","\u201c CARDINAL . No Contracting State shall expel or return ( \u2018 ORG ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .","NORP The benefit of the present provision may not , however , be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is , or who , having been convicted by a final judgement of a particularly serious crime , constitutes a danger to the community of that country . \u201d","LAW ( Law no . GPE of DATE ) , as in force at the material time , incorporated the definition of the term \u201c refugee \u201d contained in LAW , as amended by LAW relating to ORG . The LAW defines a refugee as a person who is not a NORP national and who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , ethnic origin , or membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , unwilling to avail himself of the protection of that country , or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , unwilling to return to it ( section CARDINAL(CARDINAL)(CARDINAL ) ) .","The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace , a war crime , a crime against humanity , or a serious non - political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status ( section CARDINAL ) and ( CARDINAL ) ) .","A person who has applied for refugee status or who has been granted refugee status can not be returned to a ORG where his life or freedom would be imperilled on account of his race , religion , nationality , membership of a particular social group or political opinion ( section CARDINAL(CARDINAL ) ) .","If a person satisfies the criteria established in section CARDINAL(CARDINAL)(CARDINAL ) , or if he does not satisfy those criteria but can not be expelled or deported from GPE for humanitarian reasons , he may be granted temporary asylum ( section CARDINAL(CARDINAL ) ) . A person who has been granted temporary asylum can not be returned against his will to the country of his nationality or to the country of his former habitual residence ( section CARDINAL(CARDINAL ) ) . The person loses temporary asylum if the underlying circumstances cease to exist or if he is granted a permanent residence permit in GPE or establishes his place of residence outside NORP territory ( section CARDINAL(CARDINAL ) ) . The person is deprived of temporary asylum , inter alia , if he is found guilty of a crime committed on NORP territory or is found to have submitted false information or documents that had justified the authorities\u2019 decision to grant him temporary asylum ( section CARDINAL(CARDINAL ) ) .","According to the Procedure for Granting Temporary Asylum adopted by Decree no . CARDINAL of DATE , as in force at the material time , a competent ORG body delivers a certificate for temporary asylum to any person to whom it has been granted ( \u00a7 CARDINAL) . The certificate constitutes an identity document in GPE ( \u00a7 CARDINAL ) . When a certificate for temporary asylum is delivered to a person , his other identity documents are withheld by the ORG on a temporary basis . Temporary asylum is granted for a period of DATE , which may be renewed for DATE upon request by the person concerned , provided that the underlying circumstances continue to exist ( \u00a7 CARDINAL ) . The person to whom temporary asylum is granted enjoys all rights and obligations provided for by LAW except the right to receive a lump - sum allowance ( \u00a7 CARDINAL ) .","Recommendation No . R ( CARDINAL ) CARDINAL by ORG to member GPE on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :","\u201c ORG ...","Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ,","Recommends that governments of member states , while applying their own procedural rules , ensure that the following guarantees are complied with in their legislation or practice :","An effective remedy before a national authority should be provided for any asylum seeker whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...","NORP the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","On a more general level , ORG ( DATE ) CARDINAL of ORG to member GPE on the improvement of domestic remedies states as follows :","ORG ...","Emphasising that it is for member states to ensure that domestic remedies are effective in law and in practice , and that they can result in a decision on the merits of a complaint and adequate redress for any violation found ;","Noting that the nature and the number of applications lodged with the ORG and the judgments it delivers show that it is more than ever necessary for the member states to ascertain efficiently and regularly that such remedies do exist in all circumstances ...","Considering that the availability of effective domestic remedies for all arguable claims of violation of the LAW should permit a reduction in the ORG \u2019s workload as a result , on the one hand , of the decreasing number of cases reaching it and , on the other hand , of the fact that the detailed treatment of the cases at national level would make their later examination by the ORG easier ;","Emphasising that the improvement of remedies at national level , particularly in respect of repetitive cases , should also contribute to reducing the workload of the ORG ;","Recommends that member states , taking into account the examples of good practice appearing in the appendix :","I. ascertain , through constant review , in the light of case - law of the ORG , that domestic remedies exist for anyone with an arguable complaint of a violation of the LAW , and that these remedies are effective , in that they can result in a decision on the merits of the complaint and adequate redress for any violation found ;","II . review , following ORG judgments which point to structural or general deficiencies in national law or practice , the effectiveness of the existing domestic remedies and , where necessary , set up effective remedies , in order to avoid repetitive cases being brought before the ORG ; ... \u201d","The Code of Criminal Procedure establishes that every report of a crime must be accepted , verified and decided upon within DATE by an inquiry officer , inquiry agency , investigator or prosecutor . They may proceed , with experts\u2019 assistance or on their own , to documentary verifications , checks , and the examination of documents , objects or dead bodies , and may issue compulsory orders for operational search activities ( Article CARDINAL \u00a7 CARDINAL ) . The aforementioned period of DATE may be extended to DATE in certain circumstances ( LAW ) . A criminal investigation may be initiated by an investigator or a prosecutor following a complaint by an individual or on the investigating authorities\u2019 own initiative , where there are reasons to believe that a crime has been committed ( ORG CARDINAL and CARDINAL ) .","Orders by an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen \u2019s access to justice , may be appealed against to a district court , which is empowered to check the lawfulness and grounds of the impugned decisions ( LAW ) .","A report released by ORG in DATE contained the following information on the death of PERSON in police custody ( see paragraph CARDINAL above ) :","\u201c PERSON , a member of ORG ( IRP ) , died in police custody in DATE after he was detained for questioning by law enforcement officers in PERSON . Initially the officers claimed that he had committed suicide by jumping from a third floor window . The IRP claimed that an autopsy report indicated that he had been beaten and ill - treated , and alleged that he had been pushed from the window . The general prosecutor \u2019s office subsequently announced that following an investigation CARDINAL officers had been detained . \u201d","The reports by ORG and nongovernmental organisations on the situation in NORP at the material time appear in several judgments of the ORG cited above ( see , among others , PERSON , \u00a7 \u00a7 DATE , and ORG , \u00a7 \u00a7 CARDINAL ) . More recently , the situation was further reported upon as follows .","ORG . Concluding his visit to NORP in DATE , the UN Special Rapporteur on Torture , Mr PERSON , stated that \u201c pressure on detainees , mostly as a means to extract confessions , is practiced in NORP in various forms , including threats , beatings and sometimes by applying electric shock \u201d . He stressed that \u201c confessions extracted by violence remain the main investigatory tool of law enforcement and prosecutorial bodies \u201d . He also expressed his concerns at the lack of safeguards against illegal extradition or rendition from and to other countries , as \u201c there seems to be no meaningful opportunity for judicial review of these measures that are generally conducted by the law enforcement bodies under the direction of ORG . LAW in civil and criminal matters of DATE , other agreements between ORG countries ... offer general language about protection against abuse , but they operate more meaningfully as international cooperation in law enforcement . The result is that international law prohibitions on refoulement to places where a person may be subjected to torture or cruel , inhuman or degrading treatment are not guaranteed in fact \u201d ( End - of - mission Statement by ORG , PERSON . Preliminary findings on his country visit to GPE , DATE ) .","On DATE a group of non - governmental organisations including international NGOs ( ORG , ORG ( FIDH ) , ORG ( ORG ) and ORG ( OMCT ) ) , as well as NORP NGOs ( ORG , ORG , LAW , LOC , and several others ) released a joint statement . It was headed \u201c NORP : A coalition of nongovernmental organisations is calling on the government to end torture and fulfil its international obligations \u201d and , in so far as relevant , reads as follows :","\u201c In NORP police have in many cases been accused of torturing or beating detainees to extract money , confessions or other information incriminating the victim or others . This abuse has mostly taken place in the early stages of detention ; in many cases victims are initially detained without contact with the outside world ...","Torture practices reported in NORP include the use of electric shocks ; attaching plastic bottles filled with water or sand to the detainee \u2019s genitals ; rape ; burning with cigarettes . Beating with batons , truncheons and sticks , kicking and punching are also believed to be common .","... [ S]afeguards against torture enshrined in domestic law are not always adhered to . For example , while the new Criminal Procedure Code stipulates that detainees are entitled to a lawyer from the moment of their arrest , in practice lawyers are at the mercy of investigators , who can deny them access for DATE . During this period of incommunicado detention , the risk of torture or other ill - treatment is particularly high . The new Criminal Procedure Code also introduced remand hearings within TIME of a suspect \u2019s arrest . However , they often take place with a delay , and judges in many cases ignore torture allegations and the injuries presented to them in the courtroom . Usually they rely on the version of events given by [ those ] accused of the torture .","There are no routine medical examinations when detainees are admitted to police stations and temporary detention facilities . Upon transfer to pre - trial detention facilities under the jurisdiction of ORG they undergo a medical examination . However , when medical personnel suspect that a detainee [ has undergone ] torture or other ill - treatment they ... usually return them to the temporary detention facility until the signs of injury have faded .","Victims rarely lodge complaints ... for fear of repercussions , and impunity for abusive officers is the norm . Often relatives and lawyers are reluctant to file complaints , so as not to worsen the situation for the detainee .","Prosecutor \u2019s offices are tasked with investigating allegations of torture . Sometimes close personal and structural links between prosecutor \u2019s offices and police undermine the impartiality of prosecutors . The authorities have not published comprehensive statistics on prosecutions of law - enforcement officers relating specifically to torture or other ill - treatment , rather than broader charges such as \u201c abuse of power \u201c or \u201c exceeding official authority \u201d .","Judges [ regularly ] base verdicts on evidence allegedly extracted under duress ...","NORP has not given ORG access to detention facilities to carry out monitoring since DATE . It has not ratified LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment , which provides for a system of regular visits to places of detention carried out by independent international and national bodies . \u201d","In DATE ORG released its World Report CARDINAL , in which the relevant chapter on NORP states :","\u201c Torture remains an enduring problem within NORP \u2019s penitentiary system and is used to extract confessions from defendants , who are often denied access to family and legal counsel during initial detention . Despite discussions with ORG ( ICRC ) in DATE , authorities have not granted ICRC access to places of detention . With rare exceptions , human rights groups are also denied access .","While torture is practiced with near impunity , authorities took a few small steps to hold perpetrators accountable ...","Under the pretext of combating extremist threats , NORP continues to ban several peaceful minority NORP groups ... Local media continued to report on prosecutions of alleged members of PERSON ut - GPE and the NORP Tabligh movement . \u201d","NORP The report by ORG entitled \u201c Shattered Lives : Torture and other ill - treatment in NORP \u201d , released on DATE , reads , in so far as relevant , as follows :","\u201c ... ORG research shows that practices of torture and other ill\u2011treatment remain widespread in all types of detention facilities in GPE . Detainees at the early stages of detention were found to be at particular risk , subjected to torture or other ill - treatment by law enforcement officers in order to \u201c solve \u201d crimes by obtaining confessions of guilt and also to obtain money from torture victims or their relatives . The general climate of impunity keeps police abuse virtually unchecked ...","NORP The scale of torture and other ill - treatment in GPE","In NORP torture and ill - treatment occur in a climate of secrecy . [ T]he perpetrators are rarely brought to justice ... [ T]orture and other ill - treatment occur particularly in pre - trial detention ... Domestic law has significant shortcomings when it comes to safeguards against torture . In addition , those crucial safeguards that do exist in law , such as access to a lawyer immediately after apprehension , are rarely applied in practice ...","Torture and other ill - treatment by police","[ T]he routine use of torture results from the lack of technical capacity to investigate crimes ... A local independent human rights observer told ORG that : \u201c people may get away without beatings in less serious cases , but in cases involving grave crimes \u2013 if they do n\u2019t confess , they get beaten \u201d , adding that police \u201c wo n\u2019t hesitate to resort to violence ...","Torture and other ill - treatment used in the context of national security and counter - terrorism","The fight against terrorism and threats to national security are often invoked by the ORG authorities as key to securing national and regional stability . However , ... frequently human rights are violated in the pursuit of groups perceived as a threat to national security ...","[ The ] research indicates that particular targets are NORP movements and NORP groups or parties , and that people accused of being NORP extremists are at particular risk of torture and other ill - treatment in NORP ...","In DATE an explosion occurred at the office of the [ police ] in GPE , resulting in several deaths and injuries to CARDINAL people . Following this the Tajikistani authorities redoubled their efforts to find members of NORP movements and NORP groups or parties who they alleged were responsible . Law enforcement officers came under increased pressure to solve cases with national security implications ...","Torture and other ill - treatment upon return to NORP","... ORG is concerned at a series of recent cases where the ORG authorities have made extradition requests based on unreliable information for people alleged to be members of banned NORP groups , who have subsequently alleged being tortured on their return . Many of these extradition requests have been issued for people in GPE . \u201d","In Resolution CARDINAL ( DATE ) on member States\u2019 duty to cooperate with the ORG , adopted on DATE , ORG stated , inter alia :","\u201c CARDINAL . The ORG has also used the instrument of interim measures ( DATE the Rules of the Court ) in order to prevent irreparable damage . The ORG commends the ORG for finding that such interim measures are binding on states parties . It considers that this instrument may have still wider potential uses for protecting applicants and their lawyers who are exposed to undue pressure . The ORG may find it useful in this respect to examine the practice of ORG and ORG , which have used interim measures to enjoin the authorities to place applicants under special police protection in order to shield them from criminal acts by certain non - state actors . \u201d","The explanatory memorandum adopted by ORG Human Rights ( Doc . DATE of CARDINAL DATE , \u00a7 DATE ) referred in this connection to the practice developed under LAW of LAW , which empowers ORG to order positive action by states . For example , in the PERSON - Lacayo case , ORG asked the ORG to adopt a measure requesting that the Government of GPE adopt effective security measures to protect the life and personal integrity of Dr ORG , including providing him and his relatives with the \u201c name and telephone number of a person in a position of authority \u201d who would be responsible for providing them with protection . The ORG granted the ORG \u2019s request and called upon ORG to adopt \u201c such measures as are necessary to protect the life and personal integrity of PERSON \u201d ( see PERSON case , ORG of DATE ) .","The ORG \u2019s Resolution CARDINAL ( DATE ) further called upon the competent authorities of all member GPE to :","\u201c CARDINAL . refrain from putting pressure on applicants , potential applicants , their lawyers or family members , aimed at obliging them to refrain from submitting applications to the ORG or withdrawing those applications which have already been submitted ;","NORP take positive measures to protect applicants , their lawyers or family members from reprisals by individuals or groups including , where appropriate , allowing applicants to participate in witness protection programmes , providing them with special police protection or granting threatened individuals and their families temporary protection or political asylum in an unbureaucratic manner ;","NORP thoroughly investigate all cases of alleged crimes against applicants , their lawyers or family members and to take robust action to prosecute and punish the perpetrators and instigators of such acts so as to send out a clear message that such action will not be tolerated by the authorities ; ... \u201d","The ORG further stated :","\u201c CARDINAL . The ORG is of the view that member states\u2019 co - operation with ORG would benefit if the ORG were to continue to develop its case law to ensure full implementation of the member states\u2019 duty to cooperate with the ORG , in particular by :","taking appropriate interim measures , including new types thereof , such as ordering police protection or relocation of threatened individuals and their families ;","NORP urgently notifying applications to respondent states in cases where the ORG is informed of credible allegations of undue pressure on applicants , lawyers or family members ;","granting priority to such cases ;","taking up cases of alleged unlawful pressure on applicants and lawyers with the representatives of the state concerned and , as appropriate , alerting ORG to any persistent problems . \u201d","Lastly , the ORG invited \u201c national parliaments to include all aspects of states\u2019 duty to co - operate with the ORG in their work aimed at supervising the compliance of governments with obligations under the LAW , and to hold the executive or other authorities accountable for any violations . \u201d","In LAW ( DATE ) the ORG proposed that ORG address a recommendation to all member ORG inviting them to take the necessary measures in order to prevent applicants who had initiated proceedings before the ORG , their lawyers , members of their families , or the NGOs assisting them from being subjected to unlawful pressure or reprisals , and to ensure that perpetrators and instigators of such acts were brought to account .","The ORG \u2019s more recent Recommendation DATE ( DATE ) of CARDINAL DATE specifically dealing with the question of interim measures under Rule CARDINAL reads as follows :","\u201c CARDINAL . A major concern of the ORG is the growing number of member states that have recently ignored interim measures ordered by ORG under Rule CARDINAL . This emphasises the need for ORG to reinforce its role in the execution of the ORG \u2019s judgments .","The ORG therefore invites ORG to :","NORP consider extending its mandate under LAW ( \u201c the Convention \u201d , ORG . CARDINAL ) by introducing a competence to monitor compliance with the letter and spirit of Rule CARDINAL measures of which notice has been given under Rule CARDINAL of ORG ;","fully use its competence pursuant to LAW in resolving the cases of non - compliance in a way which fully and effectively upholds the Convention ; ensure , in collaboration with the ORG , that a mechanism or working method is established for follow - up in cases of non - compliance , and investigate cases and\/or publish statements in this connection ;","give priority to judgments finding violations of LAW in cases concerning expulsion and extradition of aliens , while supervising their execution by respondent states according to LAW ;","NORP seek to adopt an interim resolution calling for member states to take individual and\/or general measures , in those cases where an individual has been expelled to a state which has no wish to return him or her ;","NORP co - operate with the ORG and other relevant actors in order to publish uptodate Rule CARDINAL statistics as well as information on the extent of compliance by contracting parties ; ... \u201d","In its LAW ( DATE ) adopted on DATE , the ORG also stated :","\u201c CARDINAL . While still relatively rare , the growing number of breaches is of grave concern given the harm to the individuals concerned and the impact on the integrity of the Convention system as a whole . The ORG condemns any disrespect of legally binding measures ordered by the ORG , and in particular disrespect for the right of individual application as guaranteed by LAW , as a blatant disregard for this unique system of protection of human rights .","...","The ORG therefore urges the member states of ORG to :","NORP guarantee the right of individual petition to ORG under Article CARDINAL , neither hinder nor interfere with the exercise of that right in any manner whatsoever and fully comply with the letter and spirit of interim measures indicated by ORG under Rule CARDINAL , in particular by :","CARDINAL.CARDINAL.CARDINAL . co - operating with ORG , by providing full , frank and fair disclosure in response to requests for further information under LAW ) , and facilitating to the highest degree any fact - finding requests made by the ORG ;","...","The ORG recognises the primary role of the ORG in finding solutions for dealing with interim measures under Rule CARDINAL and in this context expresses the hope that the ORG will :","...","NORP require , in more cases , the adoption of specific measures by states to remedy harm caused , in order that ORG may more effectively monitor the execution of judgments ... \u201d","In Resolutions ResDH(CARDINAL)CARDINAL and ResDH(CARDINAL)CARDINAL the Committee of Ministers emphasised that the principle of cooperation with the ORG embodied in the ORG was of fundamental importance for the proper and effective functioning of the FAC system and called on the governments of GPE to ensure that all relevant authorities strictly complied with that obligation .","The ORG of ORG Interim PERSON \/ ResDH(CARDINAL)CARDINAL concerning the ORG \u2019s judgment in the case of PERSON GPE ( no . CARDINAL , DATE ) reads as follows :","\u201c ORG ...","Recalling that the applicant in the present case was expelled to GPE on DATE despite the ORG \u2019s interim measure under LAW requiring the NORP authorities not to do so until further notice ;","Noting that the ORG consequently found that the applicant \u2019s expulsion amounted to violations of LAW CARDINAL of the Convention ;","Recalling that , in the context of the examination of the present case , the ORG noted , at its CARDINALth meeting ( DATE ) , that the NORP authorities were fully committed to complying with the interim measures indicated by ORG CARDINAL ;","Deploring that , despite this commitment , the NORP authorities expelled another applicant , Mr. PERSON , to GPE on DATE in breach of an interim measure indicated on DATE by ORG requiring the NORP authorities not to do so until further notice ;","Noting with concern that in CARDINAL other cases the NORP authorities have expelled applicants to GPE although the ORG had previously indicated not to do so under Rule CARDINAL ;","Recalling firmly that , according to the ORG \u2019s well - established case - law , LAW entails an obligation to comply with interim measures indicated pursuant to LAW since ORG judgment of DATE in the case of PERSON and PERSON against GPE ,","Stressing once again the fundamental importance of complying with interim measures indicated by ORG under Rule CARDINAL of ORG ;","Expressing confidence however that the NORP authorities will finally take the necessary measures to ensure that interim measures indicated by the ORG are strictly complied with , to prevent similar violations in the future ;","FIRMLY RECALLS the obligation of the NORP authorities to respect interim measures indicated by the ORG ;","URGES the NORP authorities to take all necessary steps to adopt sufficient and effective measures to prevent similar violations in the future ;","DECIDES to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted . \u201d","Responding to Recommendation DATE ( DATE ) of ORG ( see paragraph CARDINAL above ) , ORG adopted Resolution CM \/ Res(CARDINAL)CARDINAL on member States\u2019 duty to respect and protect the right of individual application to the ORG , the relevant parts of which read as follows :","\u201c ... PERSON that the right of individuals to apply to ORG hereinafter referred to as \u2018 the ORG ) is a central element of the convention system and must be respected and protected at all levels ;","Stressing that respect for this right and its protection from any interference are essential for the effectiveness of the Convention system of human rights protection ;","Recalling that all GPE Parties to the LAW have undertaken not to hinder in any way the effective exercise of this right , as stipulated by LAW ;","Recalling that positive obligations , including to investigate , form an essential characteristic of the Convention system as a whole ;","Recalling also that the ORG \u2019s case law has clearly established that LAW entails an obligation for GPE Parties to comply with an indication of interim measures made under LAW and that non - compliance may imply a violation of LAW ;","Noting therefore with concern that there have been isolated , but nevertheless alarming , failures to respect and protect the right of individual application ( such as obstructing the applicant \u2019s communication with the ORG , refusing to allow the applicant to contact his lawyer , bringing pressure to bear on witnesses or bringing inappropriate proceedings against the applicant \u2019s representatives ) , as found in DATE by the ORG ;","Deploring any interference with applicants or persons intending to apply to the ORG , members of their families , their lawyers and other representatives and witnesses , and being determined to take action to prevent such interference ;","Recalling the DATE ORG relating to persons participating in proceedings of ORG ( ETS No . CARDINAL ) ;","Recalling its Resolutions ResDH(CARDINAL)CARDINAL and ResDH(CARDINAL)CARDINAL on the states\u2019 obligation to co - operate with ORG ,","Calls upon the GPE Parties to :","NORP refrain from putting pressure on applicants or persons who have indicated an intention to apply to the Court , members of their families , their lawyers and other representatives and witnesses aimed at deterring applications to the Court , having applications which have already been submitted withdrawn or having proceedings before the Court not pursued ;","NORP fulfil their positive obligations to protect applicants or persons who have indicated an intention to apply to the Court , members of their families , their lawyers and other representatives and witnesses from reprisals by individuals or groups including , where appropriate , by allowing applicants and witnesses to participate in witness protection programmes and providing appropriate forms of effective protection , including at international level ;","NORP in this context , take prompt and effective action with regard to any interim measures indicated by the ORG so as to ensure compliance with their obligations under the relevant provisions of the LAW ;","identify and appropriately investigate all cases of alleged interference with the right of individual application , having regard to the positive obligations already arising under the LAW in light of the ORG \u2019s case law ;","NORP take any appropriate further action , in accordance with domestic law , against persons suspected of being the perpetrators and instigators of such interference , including , where justified , by seeking their prosecution and the punishment of those found guilty ;","NORP if they have not already done so , ratify the DATE ORG relating to persons participating in proceedings of ORG ,","Decides also to examine urgently , particularly in the context of its supervision of the execution of judgments finding a violation of LAW , to any incident of interference with the right of individual application and encourages the Secretary General to consider exercising his powers under LAW where justified by the circumstances . \u201d","In its Final Declaration , the High Level Conference on the Future of the ORG held in GPE on DATE reiterated the requirement for GPE Parties to comply with the interim measures in the following terms :","\u201c [ The Conference ] stresses the importance of GPE Parties providing national remedies , where necessary with suspensive effect , which operate effectively and fairly and provide a proper and timely examination of the issue of risk in accordance with the LAW and in light of the ORG \u2019s case law ; and , while noting that they may challenge interim measures before the ORG , reiterates the requirement for GPE Parties to comply with them . \u201d","Replying to the ORG \u2019s Recommendation CARDINAL ( DATE ) ( see paragraph CARDINAL above ) , ORG assured the ORG that \u201c it fully uses its competence under LAW in all cases establishing violations of LAW , whether in order to ensure that urgent individual measures are rapidly adopted , or repetitions of violations prevented through the introduction of necessary domestic safeguards . \u201d The ORG reminded the ORG that the new working methods applied since DATE had fixed as indicators for classification under enhanced supervision all cases calling for urgent individual measures or revealing major structural problems ( see Doc . DATE ) .","Following the information received from the ORG about repeated complaints of GPE \u2019s disregard for interim measures in the present case and several other cases ( see paragraph CARDINAL above ) , ORG examined that issue in connection with the execution of the ORG \u2019s judgment in the PERSON case ( cited above ) .","The ORG of ORG decision ( ORG Dec(CARDINAL)CARDINAL\/CARDINAL ) , adopted on DATE at the CARDINALth meeting of ORG , reads , in so far as relevant , as follows :","\u201c The Deputies","...","as regards the PERSON case , recalled that the violations of the LAW in this case were due to the applicant \u2019s kidnapping by unknown persons , whom the ORG found to be NORP ORG agents , and his forcible transfer to NORP after his extradition had been refused by the NORP authorities ;","noted with profound concern the indication by the ORG that repeated incidents of this kind have recently taken place in respect of CARDINAL other applicants whose cases are pending before the ORG where it applied interim measures to prevent their extradition on account of the imminent risk of grave violations of the LAW faced by them ;","took note of the NORP authorities\u2019 position that this situation constitutes a source of great concern for them ;","noted further that the NORP authorities are currently addressing these incidents and are committed to present the results of the follow - up given to them in GPE to ORG in the framework of its examination of the cases concerned and to the ORG with regard to the PERSON case ;","NORP urged the NORP authorities to continue to take all necessary steps to shade light on the circumstances of Mr. PERSON \u2019s kidnapping and to ensure that similar incidents are not likely to occur in the future and to inform ORG thereof . \u201d","During its subsequent examination of the issue , ORG , confronted with yet another case of alleged disappearance of an applicant notwithstanding the interim measures indicated by the ORG , reiterated its previous concerns at the repetition of such incidents and continued as follows ( see decision adopted on DATE at the FAC meeting - ORG ) :","\u201c The Deputies","...","NORP deplored the fact that , notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court , ORG and by the NORP authorities themselves , they were informed that yet another applicant disappeared on DATE in GPE and shortly after found himself in custody in NORP ;","took note of the NORP authorities\u2019 position according to which the investigation in the PERSON case is still ongoing and had not at present established the involvement of ORG in the applicant \u2019s kidnapping ;","NORP regretted however that up to now , neither in the PERSON case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants\u2019 kidnappings and their transfer , nor to establish the responsibility of any state agent ;","noted that , according to the information given by the NORP authorities , following the dissemination in DATE of ORG decision adopted at the CARDINALth meeting to ORG , to ORG , ORG , ORG and to ORG , no other incidents of this kind had taken place , and invited the NORP authorities to clarify whether they consider that this measure is sufficient to effectively put an end to such an unacceptable practice . \u201d","By a decision adopted at the CARDINALth meeting of ORG on DATE ( ORG Dec(CARDINAL)CARDINAL ) , ORG made the following findings and assessment :","\u201c The Deputies","...","noted with regret that to date CARDINAL responsible for the applicant \u2019s illegal transfer to GPE has been identified in the PERSON case ;","...","noted that no incidents similar to those described in the PERSON case took place since the last examination of this case by the ORG and invited the NORP authorities to continue to take all necessary measures in order to ensure that such incidents no longer occur in the future ;","welcomed the adoption on DATE by ORG of GPE of a Ruling providing important guidelines on how to apply domestic legislation in the light of the Convention requirements , in particular with regard to ORG and CARDINAL of the Convention ;","noted further with satisfaction that the measures adopted by the NORP authorities in response to the judgments of this group ( ORG decision , instructions issued by ORG and ORG ) have already resulted in a number of judgments of the ORG finding no violations of the LAW ;","NORP encouraged the NORP authorities to ensure rapid progress with regard to the preparation and adoption of the legislative reform required by these judgments . \u201d","ORG resumed examination of the issue at the CARDINALth meeting of ORG held on DATE and adopted the following decision ( ORG Dec(CARDINAL)CARDINAL ) :","\u201c The Deputies","recalled that in abiding by a ORG \u2019s judgment , ORG has an obligation to take all measures to prevent violations similar to those found by the ORG ;","NORP consequently deeply regretted that , notwithstanding the serious concerns expressed by the Court and by ORG in respect of incidents allegedly similar to that in the PERSON judgment , they were informed that yet another applicant , who was subject to an interim measure indicated by ORG under Rule CARDINAL in connection with his planned extradition to NORP , would have disappeared from GPE on DATE ( PERSON v. GPE , No . MONEY ) ;","NORP noted that such incidents , if confirmed , and lack of appropriate response thereto by the authorities would raise a more general issue as to the compatibility of this situation with the obligations of GPE under the Convention ;","NORP reiterated their regret expressed in their earlier decision that up to now , neither in the PERSON case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants\u2019 kidnappings and their transfer , nor to establish the responsibility of any state agent ;","NORP consequently called upon the NORP authorities to address without further delay this worrying and unprecedented situation , notably by adopting protective measures in respect of other persons who may be subject to an interim measure indicated by ORG under Rule CARDINAL in connection with their removal from the NORP territory and ensuring that all such incidents are effectively investigated in strict compliance with their Convention obligations ;","invited the NORP authorities to provide information on the applicant \u2019s current situation in the PERSON case , in particular as far as guarantees against illtreatment are concerned . \u201d","The Committee of ORG latest decision on the matter ( ORG ) , which was adopted on DATE at the ORG meeting of ORG , reads as follows :","\u201c The Deputies","took note of the NORP authorities\u2019 position according to which the measures taken so far can prevent further abductions and forced transfers of persons in whose respect the ORG indicated an interim measure under LAW ;","NORP noted however with serious concern that at present several complaints of foreign nationals are pending before the ORG concerning alleged violations of their rights and the non - observance of interim measures indicated by the ORG with regard to their forced transfer from the territory of GPE ;","invited the NORP authorities to clarify the relevance of the measures already taken in circumstances similar to those described in the LOC and PERSON judgments ;","NORP reiterated their call upon the NORP authorities to adopt without further delay the necessary measures to put an end to such incidents by taking further special protective measures in respect of the applicants and a set of measures to ensure rapid and effective investigations into disappearances and forced transfers , and to inform ORG accordingly ;","in view of the persistence of this alarming situation and having regard to the obligations of GPE under the Convention , invited the President of ORG to address a letter to his NORP counterpart in order to draw his attention to the serious concern of ORG as well as its repeated calls to adopt the above - mentioned measures ;","decided to resume consideration of these questions at the latest at their CARDINAL meeting ( DATE ) ( DH ) however agreeing , in the event that a new , similar incident is brought to the ORG \u2019s attention , to return to this issue at their first meeting following notification of such an incident . \u201d"],"violated_articles":["3","34","5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105624","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2011,"docname":"CASE OF \u0160NEERSONE AND KAMPANELLA v. ITALY","importance":2,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;No violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque","text":["The applicants were born in DATE and DATE respectively and live in R\u012bga .","In DATE PERSON was born to the first applicant in GPE . His father was an NORP national , who was never married to the first applicant but who has never disputed his paternity of PERSON . In DATE PERSON \u2019s parents separated and the applicants moved to a separate residence in GPE , GPE . The applicants allege that ever since PERSON \u2019s birth he has in practice been in the exclusive care of his mother , and his father \u2019s participation in his upbringing has been minimal .","At the request of the first applicant , on DATE ORG ( Tribunale per i minorenni di Roma ) granted custody of PERSON to his mother because the ongoing conflict between the parents made joint custody unfeasible . However , the court held that the father had a right to have his son stay at his home on specified days of DATE and also whenever the first applicant was travelling outside GPE for a length of time exceeding one week or outside GPE for any length of time . The decision came into force on DATE it was adopted .","PERSON \u2019s father appealed against that decision , requesting that joint custody be granted or that he be granted sole custody and that the first applicant be forbidden to take the child abroad or to change her place of residence without the father \u2019s prior approval . ORG ( GPE d\u2019appello di GPE . Sezione per i minorenni ) rejected his request in a decision of DATE , noting , inter alia , that the child was developing well and that it was impossible to ensure his development by granting sole custody to the father . Furthermore , it was noted that the father \u2019s concern that the first applicant might move to GPE and take their son with her was unfounded because a judge in a guardianship hearing ( giudice tutelare , \u201c the guardianship judge \u201d ) had previously refused to issue a passport to PERSON and also because his mother had strictly adhered to the ruling of the first - instance court and had left the child in his father \u2019s care when travelling to GPE .","On DATE the guardianship judge granted an authorisation to issue a passport to PERSON . On DATE PERSON \u2019s father appealed against that decision . On DATE ORG rejected PERSON \u2019s father \u2019s appeal , because there was no evidence that the first applicant was planning to leave GPE with the child .","On DATE ORG Tribunale ) of NORP ruled that PERSON \u2019s father had to make child support payments . The decision noted , inter alia , that the father had previously avoided financially supporting his son . PERSON \u2019s father failed to make the ordered payments and on DATE the first applicant lodged a complaint about this with the NORP police .","It appears that because of PERSON \u2019s father \u2019s failure to financially support the applicants their only income was money which the first applicant \u2019s mother was sending from GPE . However , in DATE the first applicant \u2019s mother informed her that she was no longer able to provide financial support . According to the applicants it was for that reason that they had no other choice but to return to GPE in DATE . The applicants indicate that they subsequently continued to return to GPE for brief periods of time . According to ORG , they have never been back .","On DATE PERSON was granted NORP citizenship , since it was established that his mother \u2019s permanent residence at the time of his birth had been in GPE . Subsequently , the first applicant registered PERSON \u2019s permanent residence in an apartment in ORG belonging to her .","On an unspecified date PERSON \u2019s father requested ORG to grant him interim sole custody of PERSON and to order his return to GPE .","On DATE that court issued a decision in which it upheld the father \u2019s request . The decision noted that the first applicant \u2019s actions had been harmful to the child . The court further held that it did not have jurisdiction to order the child \u2019s return to GPE but indicated that PERSON had to reside with his father . The decision finally provided that a hearing would be held on DATE and that PERSON \u2019s father had an obligation to inform the first applicant of the court \u2019s decision before DATE .","The applicants submit that the first applicant was not informed of the hearing that had been scheduled , nor did she receive a summons to it . The applicants further submit that PERSON \u2019s father had never requested full custody , but instead had asked the court to re - establish his rights of contact with the child and to order his return to GPE . The first applicant alleges that she only learned about the adopted decision in DATE .","On DATE ( by what appears to be a clerical error the document is dated DATE ) ORG Ministry of Justice , in its capacity as ORG under LAW ( \u201c LAW ) , issued a request for PERSON to be returned to GPE .","After receiving the request , ORG ( NORP un \u0123imenes lietu ministrija ) , which is ORG within the meaning of LAW , initiated civil proceedings against the first applicant in accordance with LAW . The R\u012bga City Vidzeme District Court , which had been allocated the case , requested ORG ( PERSON b\u0101ri\u0146tiesa ) to evaluate the applicants\u2019 residence and to issue an opinion concerning the possibility of returning PERSON to his father in GPE . After visiting the applicants\u2019 residence , by a decision of DATE the Orphans\u2019 Court established that the child \u2019s living conditions were beneficial for his growth and development . It further noted that PERSON had adjusted to living in his mother \u2019s residence and that she was ensuring his full physical and intellectual development . Accordingly , ORG concluded that the child \u2019s return to GPE would not be compatible with his best interests .","That conclusion was also supported by the findings of a psychologist , whose opinion had been requested by the applicants\u2019 lawyer . In a report dated DATE the psychologist concluded that severance of contact between PERSON and his mother was not to be allowed , in that it could negatively affect the child \u2019s development and could even create neurotic problems and illnesses .","By a letter of DATE , ORG attested to ORG that if any of the circumstances mentioned in LAW ( b ) of LAW arose GPE would be able to activate a wide - ranging child protection network which could ensure that PERSON and his father received psychological help .","On DATE the FAC issued a decision by which it refused the father \u2019s request to return PERSON to GPE . That court based its decision on LAW ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( \u201c the Regulation \u201d ) . The court held that the removal of PERSON had been wrongful within the meaning of LAW and the Regulation , since it had been carried out without his father \u2019s permission . It was further noted that it was not expedient to hear PERSON \u2019s own opinion , since he was DATE at the time and was unable to form an opinion about which of his parents he should live with .","The court considered it necessary to assess whether the circumstances provided for in LAW ( b ) of LAW existed . Its conclusion was that those circumstances existed . It noted the ties between PERSON and his mother and the fact that he had settled well in GPE and considered that his continued residence in GPE was essential for his development . ORG found that the provisions of LAW ) of the ORG had not been fulfilled , because it was financially impossible for the first applicant to follow PERSON to GPE if he were returned there . Furthermore , the guarantees provided for by GPE could not ensure that the child would not suffer psychologically and that his mental health would not be prejudiced . Accordingly the court applied LAW ( b ) of LAW and refused the father \u2019s request .","On DATE ORG adopted a final decision , by which it rejected the father \u2019s appeal against the decision of ORG . In substance ORG agreed with the conclusions of the first - instance court , adding that the guarantees offered by ORG concerning the protection available to PERSON after his potential return to GPE were too vague and non - specific . It was also mentioned that PERSON \u2019s father had made no effort to establish contact with his son ever since the applicants\u2019 departure from GPE .","On DATE the first applicant requested PERSON to grant her sole custody of PERSON . On DATE ORG issued an opinion in which it concluded that granting sole custody of PERSON to his mother was in his best interests . ORG indicated among other considerations the fact that PERSON \u2019s father had not seen his son since DATE .","On DATE CARDINAL PERSON \u2019s father lodged a request with ORG , which was based on LAW ) , ( CARDINAL ) and ( CARDINAL) of the Regulation , to issue an immediately executable decision ordering PERSON \u2019s return to GPE .","On DATE the first applicant submitted her observations to that court , in which she acknowledged that she had left GPE because of an ongoing conflict with PERSON \u2019s father and because of her difficult financial situation . She noted that PERSON \u2019s father had never travelled to see his son in GPE ; however , she stated that the applicants were always available to come to GPE to meet PERSON \u2019s father during school holidays . In conclusion , she requested that the court order child support payments in the amount of QUANTITY ( ORG ) per month .","In the context of separate proceedings , on DATE ORG made a judgment concerning the first applicant \u2019s request for child support payments and ordered PERSON \u2019s father to pay the first applicant ORG CARDINAL,CARDINAL plus interest , starting from DATE .","By a decision of DATE ORG upheld the father \u2019s request . It considered that the only role left to it by LAW ) of the ORG was to verify whether adequate arrangements had been made to secure the protection of the child from any identified risks within the meaning of LAW b ) of LAW after his or her return . After considering the first applicant \u2019s submissions , the court noted that the father had proposed that PERSON would stay with him , while the first applicant would be authorised to use a house in PERSON for periods of DATE during DATE and subsequently for DATE ( the first applicant would have to cover her own travel expenses and CARDINAL of the rent of the house in PERSON ) , during which time PERSON would be staying with his mother , while the father would retain the right to visit him on a DATE basis . PERSON would be enrolled in a kindergarten which he had attended before his removal from GPE . He would also attend a swimming pool he had used before his departure from GPE . The father furthermore undertook to ensure that the child would receive adequate psychological help and would attend LANGUAGE - language classes for NORP children . The court considered such an arrangement adequate to fulfil the requirements of the ORG and ordered an immediate execution of its decision to return PERSON to GPE and to have him reside with his father . The court also pointed out that it would be preferable if the first applicant accompanied PERSON on his way to GPE but , should that prove to be impossible , his return would be arranged by the NORP embassy in GPE . Due to the urgent nature of the case , the decision was pronounced to be immediately executable .","On DATE ( in what appears to be a clerical error , the date indicated in the document is DATE ) the first applicant lodged a request with ORG to suspend the execution of its decision . She argued that PERSON had not been heard by the tribunal and that ORG had not taken into consideration the arguments which the NORP courts had used in their decisions when applying LAW .","On DATE the first applicant lodged an appeal against the decision of ORG of DATE . In her appeal she requested that the execution of that decision be suspended ; that the appeal court hear PERSON ; that there be an order that she retain sole custody of PERSON ; and that PERSON \u2019s father be ordered to pay LAW per month in child support payments .","On DATE ORG adopted a decision in which it rejected the first applicant \u2019s request to suspend the execution of the decision of DATE . That court considered that it was not appropriate to question the child , taking into account his young age and the level of maturity . Furthermore , it considered that LAW did not oblige it to hear the parties in person . It remarked that all of the decisions taken by the NORP courts had been duly taken into consideration . Finally , the court upheld the father \u2019s request to issue a return certificate in accordance with ORG DATE and CARDINAL of the Regulation . The certificate was issued on DATE .","On DATE ORG sent a letter to ORG , forwarding ORG decision of DATE and inviting it to advise the NORP side on \u201c the initiatives that will be taken in order to enforce the return order made by ORG in GPE \u201d .","On DATE a psychologist issued another report on PERSON \u2019s psychological state . The report concluded that the child had developed certain psychological problems in connection with his father \u2019s request to return him to GPE . It further reiterated the conclusion from the earlier report , that PERSON had strong emotional ties with his mother , the severance of which was impermissible .","On DATE the first applicant received information from ORG about the request made by ORG . The first applicant was informed that GPE had an obligation to enforce the DATE decision of ORG .","On DATE the first applicant submitted a request to FAC , requesting it to indicate interim measures and not to allow PERSON \u2019s return to GPE \u201c until he himself agrees to return to his father in GPE \u201d . Further , she requested the court to require ORG and ORG to surrender their competence to ORG , since that court had already , on DATE , been allocated a still pending case concerning the granting of sole custody of PERSON to his mother , and also because the child \u2019s permanent residence was in GPE .","On DATE ORG adopted a decision in which it decided not to proceed with the first applicant \u2019s request concerning the question of PERSON \u2019s custody , since it considered that the first applicant \u2019s appeal against ORG decision of DATE , which was pending at the time before ORG , concerned the same subject matter , with the same parties involved .","On DATE ORG adopted a decision concerning the first applicant \u2019s appeal against ORG decision of CARDINAL DATE . The appeal court first of all observed that pursuant to LAW ( CARDINAL) of the Regulation ( see below , paragraph CARDINAL ) it had jurisdiction to decide the question of the child \u2019s return to GPE . It then went on to observe that the first - instance court had correctly implemented the procedure set out in LAW ( CARDINAL ) of the Regulation ( see below , paragraph CARDINAL ) , as attested by the reasoned opinion of ORG ( see below , paragraphs CARDINAL - CARDINAL ) . The court continued by observing that the decision to grant PERSON \u2019s father sole custody had been motivated by the first applicant \u2019s behaviour when she had chosen to take the child to GPE and by the father \u2019s undertaking to take care of the child in GPE . ORG therefore upheld the decision of ORG and ordered that after the child \u2019s return to GPE he be enrolled in a primary school .","On DATE the bailiff of ORG charged with the execution of the ORG decision of DATE invited PERSON \u2019s father to provide assistance in the execution of that decision by reestablishing contact with his son . It appears that PERSON \u2019s father has not responded to that request in any way .","On DATE GPE brought an action against GPE before ORG in application of LAW . GPE alleged , in particular , that the above - described proceedings in GPE ( the decision adopted on DATE and the issuing of the return certificate in DATE ) did not conform to the Regulation , in that neither of the applicants had been heard by ORG on DATE , and also that ORG had ignored the decisions of DATE of ORG and of CARDINAL DATE of ORG .","On DATE the ORG issued a reasoned opinion . It held that GPE had violated neither the ORG nor the \u201c general principles of the ORG law \u201d . In so far as is relevant to the case before ORG , the Commission held as follows .","At the outset it reiterated , where GPE was disputing the legality of the actions of an NORP authority with a judicial function , the scope of the ORG \u2019s review was very limited . The ORG could only review matters of procedure , not substance , and it had to respect the decisions made by the NORP courts in the exercise of their discretionary powers .","Concerning the argument of GPE that the decision of DATE had been adopted without attempting to obtain PERSON \u2019s opinion , the Commission stressed that it followed from the ORG , LAW on the Rights of the LAW ( \u201c the ORG Convention \u201d ) , LAW and LAW that hearing a child \u2019s opinion with regard to questions concerning that child was a fundamental principle . However , that principle was not absolute . What had to be taken into account was the level of the child \u2019s development . That level was not and could not be defined in any international instruments , therefore the national authorities retained wide discretion in such questions . The Commission held that ORG had used that discretion and indicated in the certificate of return that it had not been necessary for the NORP courts to hear PERSON . Therefore , none of the international instruments that had been invoked by GPE had been breached .","GPE further criticised the fact that the decision of DATE had been adopted without duly taking into account the position of the first applicant , and that the decision had been adopted without hearing either of the parties , including the first applicant , who was neither informed of the time of the forthcoming hearing nor invited to take part in it . The ORG noted that the decision of DATE had been adopted in written proceedings , without hearing oral submissions of either of the parties , which was fully in conformity with the applicable NORP procedural legislation . The ORG interpreted LAW ) ( b ) of the Regulation ( see below , paragraph CARDINAL ) in the light of the ORG \u2019s case - law ( referring in particular to ORG B.V. v. the GPE , DATE , \u00a7 DATE , Series A no . CARDINAL ) , and considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed . The Commission observed that the first applicant had been given an opportunity to submit written observations on equal grounds with PERSON \u2019s father and thus neither the ORG nor LAW had been violated .","Lastly , GPE criticised the decision of DATE and the related return certificate for ignoring the NORP authorities\u2019 reasons for refusing to order PERSON \u2019s return to GPE . The Commission indicated that its role was not to analyse the substance of the NORP authorities\u2019 decisions \u2013 it was limited to appraising the compliance with the procedure which led to the adoption of those decisions with the procedural requirements of the LAW . Nothing in the ORG forbade the NORP authorities to come to a conclusion that was opposite to the one reached by the NORP authorities . Quite to the contrary , the ORG considered that the ORG gave the country of the child \u2019s residence prior to the abduction \u201c the final say \u201d in ordering the return , even if his or her new country of residence had declined to order the return . In this regard the ORG noted that ORG , when adopting the decision of CARDINAL DATE ( see above , paragraph CARDINAL ) , had referred to ORG , section CARDINAL ( CARDINAL ) ( CARDINAL ) of which permits refusal to return a child if the child is well settled in GPE and his or her return is not in his or her interests . The Commission questioned the NORP court \u2019s alleged failure to invoke the \u201c much more binding \u201d LAW , which in their opinion demonstrated that the NORP courts had devoted attention to PERSON \u2019s situation in GPE instead of the potential consequences of his return to GPE . In short , the Commission had \u201c not discovered any indications \u201d that life in GPE together with his father would expose PERSON to physical or psychological harm or otherwise place him in an intolerable situation . What is more , the Commission considered that ORG in its decision of DATE had directly addressed ORG concerns that the measures envisaged for PERSON \u2019s protection upon his return to GPE were too vague \u2013 the NORP court had set out specific obligations on the father which would allow for balanced development of the child and for him to have contact with both parents .","In conclusion the Commission conceded that the decision of DATE did not contain a detailed analysis of either the arguments of the first applicant or of those of PERSON \u2019s father . However , it considered that the Regulation did not require such an analysis . Therefore , the exact procedure to be followed in that respect was left to the national ORG discretion . Taking that into account , it was found that neither GPE nor the ORG could dispute the particular formulation of the NORP court \u2019s decision .","LAW , which has been ratified by GPE and GPE , provides , in so far as relevant , as follows .","\u201c The removal or the retention of a child is to be considered wrongful where DATE","a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and","b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .","The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . \u201d","\u201c The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . \u201d","\u201c A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities . [ .. ] \u201d","\u201c ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective ORG to secure the prompt return of children and to achieve the other objects of this Convention .","In particular , either directly or through any intermediary , they shall take all appropriate measures \u2013","[ .. ]","f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ; [ .. ] \u201d","\u201c The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .","If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . \u201d","\u201c Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .","The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .","Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . \u201d","\u201c Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that \u2013","a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or","b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .","The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .","In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child \u2019s habitual residence . \u201d","\u201c The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . \u201d","Paragraph CARDINAL of the preamble of the Regulation explains its scope , in so far as it is relevant to this case , as follows :","\u201c In cases of wrongful removal or retention of a child , the return of the child should be obtained without delay , and to this end LAW DATE would continue to apply as complemented by the provisions of this Regulation , in particular LAW . The courts of the Member ORG to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific , duly justified cases . However , such a decision could be replaced by a subsequent decision by the court of the Member ORG of habitual residence of the child prior to the wrongful removal or retention . Should that judgment entail the return of the child , the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member ORG to or in which the child has been removed or retained . \u201d","With regard to jurisdiction in cases of child abduction , the ORG , in LAW , provides , in so far as is relevant , as follows :","\u201c In case of wrongful removal or retention of the child , the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member ORG and :","...","( b ) the child has resided in that other Member ORG for a period of DATE after the person , institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and CARDINAL of the following conditions is met :","( i ) within DATE after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child , no request for return has been lodged before the competent authorities of the Member ORG where the child has been removed or is being retained ;","...","( iv ) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention . \u201d","Article CARDINAL , which is specifically singled out in the preamble , provides as follows :","\u201c CARDINAL . Where a person , institution or other body having rights of custody applies to the competent authorities in a Member ORG to deliver a judgment on the basis of LAW [ .. ] , in order to obtain the return of a child that has been wrongfully removed or retained in a Member ORG other than the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , paragraphs CARDINAL to CARDINAL shall apply .","When applying Articles CARDINAL and CARDINAL of the DATE LAW , it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity .","A court to which an application for return of a child is made as mentioned in paragraph CARDINAL shall act expeditiously in proceedings on the application , using the most expeditious procedures available in national law .","Without prejudice to the first subparagraph , the court shall , except where exceptional circumstances make this impossible , issue its judgment DATE after the application is lodged .","A court can not refuse to return a child on the basis of LAW b ) of the [ .. ] LAW if it is established that adequate arrangements have been made to secure the protection of the child after his or her return .","A court can not refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard .","[ .. ]","Unless the courts in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention have already been seized by CARDINAL of the parties , the court or central authority that receives [ a copy of an order on non - return pursuant to LAW and of the documents relevant to that order ] must notify it to the parties and invite them to make submissions to the court , in accordance with national law , within DATE of notification so that the court can examine the question of custody of the child . [ .. ]","Notwithstanding a judgment of non - return pursuant to LAW [ .. ] LAW , any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with LAW below in order to secure the return of the child . \u201d","Pursuant to LAW b ) of the Regulation , its Section CARDINAL applies to \u201c the return of a child entailed by a judgment given pursuant to LAW ( CARDINAL) \u201d","Article CARDINAL in Section CARDINAL provides the following :","\u201c CARDINAL . The return of a child referred to in DATE ) ( b ) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph CARDINAL .","Even if national law does not provide for enforceability by operation of law , notwithstanding any appeal , of a judgment requiring the return of the child mentioned in LAW b ) ( CARDINAL) , the court of origin may declare the judgment enforceable .","The judge of origin who delivered the judgment referred to in LAW ( CARDINAL ) ( b ) shall issue the certificate referred to in paragraph CARDINAL only if :","( a ) the child was given an opportunity to be heard , unless a hearing was considered inappropriate having regard to his or her age or degree of maturity ;","( b ) the parties were given an opportunity to be heard ; and","( c ) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to LAW . [ .. ] \u201d","As concerns the enforcement of judgments requiring the return of a child , Article CARDINAL of the ORG provides the following :","\u201c CARDINAL . The enforcement procedure is governed by the law of the Member State of enforcement .","Any judgment delivered by a court of another Member PERSON and [ .. ] certified in accordance with [ .. ] LAW ) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State .","In particular , a judgment which has been certified according to [ .. ] LAW ) can not be enforced if it is irreconcilable with a subsequent enforceable judgment . \u201d","Lastly , Articles DATE and CARDINAL of the Regulation provide that the Regulation \u201c shall take precedence \u201d over LAW \u201c in so far as [ it concerns ] matters governed by this LAW and that LAW continues \u201c to produce effects between the Member GPE which are party thereto \u201d ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61246","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2003,"docname":"CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The first applicant was born in DATE and lives in GPE .","On DATE , following a surveillance and undercover operation , he was arrested in a van in the company of an undercover police officer known only as \u201c PERSON \u201d . In the van was a briefcase containing QUANTITY of PERCENT pure heroin . On DATE the applicant was convicted in ORG of possessing a Class A drug with intent to supply and was sentenced to DATE imprisonment .","The first applicant 's defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery . He alleged that his participation had been organised by a man named PERSON , whom he had met DATE while both were detained on remand in FAC . According to the applicant , DATE before his arrest PERSON had introduced him to a man called PERSON and a man presented to him only as \u201c PERSON \u201d . DATE before the arrest , the applicant was contacted by GPE and asked if he would be interested in going to GPE in connection with a jewellery deal in which GPE was acting as intermediary to PERSON . He would be given a cut of the purchase price . The applicant agreed that ORG would pick him up from his home DATE .","NORP The following morning he was told that the plans had changed as PERSON was now coming to GPE . The first applicant agreed to accompany ORG to a public house where , at TIME , a red ORG car and a white van drew up . The driver of the ORG was introduced to the applicant as \u201c PERSON ; he was accompanied by a man and a woman , subsequently called \u201c PERSON and \u201c PERSON . The driver of the van was introduced as \u201c PERSON \u201d . PERSON gave PERSON a briefcase containing GBP CARDINAL . They all then left in convoy for ORG , FAC , where they were to meet PERSON .","At the hotel , ORG decided to stay with the money in the car and asked the applicant to see if PERSON had arrived . The applicant therefore went into the hotel where he met PERSON , who told him that the arrangements had changed again as PERSON was now in GPE . GPE and PERSON asked the applicant to take a taxi to FAC and ask PERSON to return with him to ORG . The applicant followed these instructions and found PERSON , who told him he had to leave immediately for another meeting . PERSON , having spoken to PERSON or GPE by mobile phone , gave the applicant the key to a room in the nearby FAC , and explained that the \u201c goods \u201d were in a briefcase in the room .","According to the applicant , PERSON came from LOC in his van and met the applicant outside FAC . PERSON then suggested that the applicant should accompany him up to the room and offered to give him a lift back to ORG afterwards . In the hotel room , PERSON forced the lock on the case while the applicant was in the bathroom and when he came out PERSON was ready to go . They returned to the van where the briefcase was opened and within moments the applicant had been arrested .","Of all the participants in the above transaction , only the applicant was arrested and charged . The applicant suspects that the other participants were undercover police officers or informers acting on police instructions , but their identities and status have never been revealed to him . In this regard he considers it relevant that at the time of the alleged dealings , PERSON was on bail to ORG in respect of a large scale conspiracy to supply cannabis . One of the conspirators was a former ORG Detective . It was known to the applicant that PERSON had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant 's case had also investigated the conspiracy for which FAC was on bail . The applicant believes that sentencing in GPE 's trial was deliberately postponed until DATE , DATE after the conclusion of the applicant 's own trial , as a disincentive for GPE to come forward and give evidence concerning the true nature of the transaction .","Prior to the commencement of the applicant 's trial the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in NORP v. PERSON , PERSON and PERSON ( see paragraph CARDINAL below ) . Judge PERSON , who considered the material in the absence of the defence , concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it . This ruling was subsequently reconsidered by the trial judge , who had the benefit of a document prepared by the defence , outlining the issues in the case , as well as of the oral submissions of defence counsel . In the course of the present proceedings before ORG , the Government revealed for the first time that the material placed before the trial judge included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation . The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings , either at first instance or on appeal . He denies any prior involvement in drug dealing . The trial judge , who directed himself in accordance with the approach set out by ORG in NORP v. PERSON ( see paragraph CARDINAL below ) , decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non - disclosure .","Following the ruling on disclosure , the defence made an application to the trial judge under section CARDINAL of ORG \u201c PACE \u201d : see paragraph CARDINAL below ) to exclude the evidence of PERSON , on the basis that the applicant had been entrapped into committing the offence . These submissions were rejected . The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section CARDINAL on grounds of entrapment . He continued that , if he had seen or heard any such material , he would have ordered disclosure .","Apart from the applicant , PERSON was the only participant in the offence to give evidence at the trial . He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room . Although PERSON claimed to have made a full note of the alleged conversations , these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers . According to the applicant it was , however , difficult for the defence to undermine PERSON 's credibility because his full name and other identifying details were not disclosed .","Following his conviction the applicant appealed to ORG on the ground , inter alia , that the judge had been wrong to refuse to order disclosure . Dismissing the appeal on DATE ORG , having itself examined the undisclosed evidence , observed that \u201c each CARDINAL of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial ; indeed quite the reverse \u201d .","Prior to the events in question , the applicant was of good character . He had been employed as accounts director in a firm which had gone into liquidation DATE , and at the time of his arrest in DATE he was unemployed and in considerable debt .","NORP The applicant 's version of events , which he maintained from the time of his first interview with the police , was that he had been introduced to a man named \u201c PERSON \u201d by an acquaintance , PERSON , since PERSON appeared interested in purchasing from the applicant some bankrupt stock . At a meeting in DATE PERSON had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction . Although the applicant had never hitherto been involved with counterfeit currency , he did have a contact , \u201c PERSON , who was able to supply forged bank notes .","PERSON went on to introduce the applicant to CARDINAL men called \u201c NORP \u201d and \u201c Jazz \u201d . At a third meeting on DATE , PERSON turned up with \u201c PERSON \u201d , who was subsequently revealed to be an undercover police officer , and an order for a large amount of currency was placed . It appears from the transcript of covert tape recordings made during this meeting that , while the applicant was not unwilling to become involved , he was actively encouraged to do so by PERSON and PERSON , who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed . On DATE the applicant met PERSON and another undercover officer , \u201c PERSON , in a public house car park . He showed them some counterfeit notes , and was immediately arrested by uniformed officers . More counterfeit notes were found when his house was searched .","The applicant maintained that he had been entrapped by undercover police officers and\/or participating informers into committing the offences . On DATE he applied to ORG judge for an order that the indictment should be stayed on the grounds that , as a result of the covert activities of undercover police officers and\/or participating informers , ( a ) it was not possible for him to have a fair trial and ( b ) the moral integrity of the criminal proceedings had been impugned . He also requested the judge to order the prosecution to provide more information and documents , including information relating to the question whether PERSON , \u201c PERSON \u201d or \u201c GPE , \u201c Jazz \u201d or \u201c NORP \u201d were participating informers or undercover police officers .","Prior to making his ruling on the defence application , the judge heard , ex parte , an application by the prosecution to withhold certain material evidence on grounds of public interest immunity . The judge refused to grant a stay or to order further disclosure , indicating that most of the information sought was subject to public interest immunity . He also ruled that , while it was clear that \u201c PERSON \u201d was coaxing the applicant , there was no evidence of pressure being applied .","A second submission was then made on the applicant 's behalf to exclude the evidence of undercover police officers under section CARDINAL of PACE . However , before evidence was called from the officers in question \u2013 \u201c PERSON \u201d and \u201c PERSON \u201d \u2013 the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed , given that certain issues relating to the investigation were covered by public interest immunity . It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed . Accordingly , the submission was withdrawn and the applicant entered guilty pleas to the indictment on DATE .","On DATE he was sentenced to a total of DATE imprisonment .","On DATE counsel advised that the applicant had no prospects of success in appealing against conviction , since he would have to demonstrate that the convictions were unsafe before an appeal could succeed . This would be impossible given that , on his own account , he had been motivated by money to enter into the deal to sell counterfeit currency . Counsel also expressed the view that :","\u201c Had there been anything within the [ public interest immunity ] material which could have assisted the Defendant in developing his case to exclude the evidence under s.CARDINAL PACE I am confident the Judge would have released it . In those circumstances , I advise that there are no grounds of appeal against conviction . \u201d","The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law . The judge does , however , have a discretion to order a stay of a prosecution where it appears that entrapment has occurred , as ORG affirmed in PERSON ; Attorney General 's Reference ( No . DATE ) ( [ DATE ] ORG CARDINAL ) , a judgment which followed and approved earlier case - law , including case - law which applied at the times of the applicants ' trials ( for example , the judgment of ORG in NORP v. PERSON [ DATE ] vol . CARDINAL Weekly Law reports p. CARDINAL ) .","In GPE , Lord PERSON of GPE explained , ( \u00a7 CARDINAL ) :","\u201c My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive , law enforcement functions of the courts and thereby oppress citizens of the state . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of state power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which state conduct of this nature could have are obvious . The role of the courts is to stand between the state and its citizens and make sure this does not happen \u201d .","In addition , the court has a discretion , under section CARDINAL of ORG , to exclude evidence obtained by an undercover police officer where , inter alia , the defendant would not have committed the offence without the police incitement ( NORP v. Smurthwaite ; PERSON ( DATE ) vol . CARDINAL ORG p. CARDINAL , judgment of ORG ; and PERSON , cited above ) . Of the CARDINAL remedies , the grant of a stay , rather than the exclusion of evidence , is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court 's process and should not have been brought in the first place .","In GPE , their Lordships agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or \u201c state created crime \u201d . In each case it was for the judge , having regard to all the circumstances , to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute . Factors to be taken into account included the nature of the offence , the reason for the particular police operation , the possibility of using other methods of detection and the nature and extent of police participation in the crime ; the greater the inducement held out by the police , and the more forceful and persistent the police overtures , the more readily might a court conclude that the police had overstepped the boundary , since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind . The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing , and the police operation should be properly supervised . The defendant 's criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police ( per Lord PERSON , \u00a7 \u00a7 DATE ; Lord PERSON , \u00a7 \u00a7 DATE ) .","At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged . This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence .","In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL ORG , p. CARDINAL ( \u201c the Guidelines \u201d ) ) . According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was \u201c sensitive \u201d material which , because of its sensitivity , it would not be in the public interest to disclose . \u201c Sensitive material \u201d was defined as follows :","\u201c ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of , an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of , a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier \u2013 e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and\/or might create risk of domestic strife . \u201d","In NORP v. Ward ( [ DATE . CARDINAL Weekly Law Reports p. CARDINAL ) ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that \u201c ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed \u201d .","In NORP v. PERSON , PERSON and PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence would then have the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .","ORG observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had \u201c as much protection as can be given without pre - empting the issue \u201d . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure \u201c in the interests of securing fairness to the defendant \u201d . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .","The leading case on disclosure at the time of the applicant 's trial was the judgment of ORG in NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) . The Lord Chief Justice , giving the judgment of the court , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . \u201c Material \u201d evidence was defined as evidence which could be seen , \u201c on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) \u201d .","Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . If the disputed material might prove the defendant 's innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .","In the case of NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG returned to the balancing exercise , stating inter alia :","\u201c Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants ' names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at CARDINAL time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ... \u201d","The requirements of disclosure have since been set out in a statutory scheme . Under the Criminal Procedure and Investigations Act DATE ( \u201c the DATE LAW ) , which came into effect in GPE and GPE immediately upon gaining FAC on DATE , the prosecution must make \u201c primary disclosure \u201d of all previously undisclosed evidence which , in the prosecutor 's view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a \u201c secondary disclosure \u201d of all previously undisclosed material \u201c which might reasonably be expected to assist the accused 's defence as disclosed by the defence statement \u201d . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .","Following the judgments of the ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions PERSON ) and PERSON v. GPE ( DATE , Reports CARDINAL-IV ) , GPE has introduced legislation making provision for the appointment of a \u201c special counsel \u201d in certain cases involving national security . The provisions are contained in ORG Act DATE ( \u201c the CARDINAL Act \u201d ) , and LAW DATE ( \u201c the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives , the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however \u201c responsible to the person whose interest he is appointed to represent \u201d , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed . The relevant rules giving effect to the DATE and CARDINAL Acts are set out in the ORG 's judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , \u00a7 DATE , ECHR DATE ) .","In DATE the ORG commissioned a comprehensive review of the criminal justice system , under the chairmanship of a senior ORG judge , Sir PERSON . The report , published in DATE after extensive consultation and entitled \u201c The Review of the Criminal Courts in England and GPE \u201d ( \u201c the Auld Report \u201d ) , recommended , inter alia , the introduction of a \u201c special counsel \u201d scheme in cases where the prosecution wished to seek , ex parte , non - disclosure on grounds of public interest immunity . The recommendation was explained in the ORG as follows ( footnotes omitted ) :","\u201c CARDINAL . The scheme [ developed by the common law since R v. Ward and reflected in LAW : see above ] is an improvement on what went before and has been generally welcomed on that account . But there is widespread concern in the legal professions about lack of representation of the defendant 's interest in the [ ex parte ] forms of application , and anecdotal and reported instances of resultant unfairness to the defence . ... A suggestion , argued on behalf of applicants in GPE and widely supported in the ORG , is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ' special independent counsel ' . He would represent the interest of the defendant at first instance and , where necessary , on appeal on a number of issues : first , as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim ; second , on the strength of the claim to public interest immunity ; third , on how helpful the material might be to the defence ; and fourth , generally to safeguard against the risk of judicial error or bias .","In my view , there is much to be said for such a proposal , regardless of the vulnerability or otherwise of the present procedures to LAW . PERSON , in a paper prepared for the ORG , has argued powerfully in favour of it . It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications . It should not be generally necessary for special counsel to be present throughout the trial . Mostly the matter should be capable of resolution by the court before trial and , if any question about it arises during trial , he could be asked to return . If , because of the great number of public interest immunity issues now being taken in the courts , the instruction of special counsel for each would be costly , it simply indicates , as PERSON has commented , the scale of the problem and is not an argument against securing a fair solution .","The role would be similar to that of an amicus curiae brought in to give independent assistance to a court , albeit mostly on appeal . In rape cases , where an unrepresented defendant seeks to cross - examine a complainant , the court must inform him that he may not do so , and should he refuse to instruct counsel , the court will appoint and instruct CARDINAL . After the decisions of ORG in PERSON and PERSON , the ORG introduced such a procedure in immigration cases involving national security . Although such cases are extremely rare , it is sufficient that the principle of a ' third ' or ' special ' counsel being instructed on behalf of a defendant has been conceded in a number of areas .","The introduction of a system of special independent counsel could , as PERSON has also noted , in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in ORG , to which LAW and supporting Rules do not apply . Where there has been a breach of LAW because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction , ORG has held that the breach can not be cured by a hearing before ORG in the absence of the appellant . The ORG 's reasons for so holding were that the appeals court is confined to examining the effect of non - disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury 's verdict into underestimating the significance of the undisclosed material .","However , even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure , whether out of incompetence or dishonesty , to indicate to the prosecutor the existence of critical information . Unless , as I have recommended , the police significantly improve their performance in that basic exercise , there will be no solid foundation for whatever following safeguards are introduced into the system .","I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non - disclosure of sensitive material . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93436","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"JOZEF OLEKSY v. POLAND","importance":3,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr W. ORG , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr J. PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","Following the entry into force of the PERSON of DATE \u201c on disclosing work for or service in the ORG \u2019s security services or collaboration with them DATE by persons exercising public functions \u201d ( ustawa o ujawnieniu pracy lub s\u0142u\u017cby w organach bezpiecze\u0144stwa pa\u0144stwa lub wsp\u00f3\u0142pracy z nimi w latach CARDINAL - CARDINAL os\u00f3b pe\u0142ni\u0105cych funkcje publiczne ) ( the \u201c DATE LAW \u201d ) , the applicant , a former Prime Minister who at the material time had been a member of the PERSON , declared that he had not collaborated with the NORP - era secret services .","On DATE the Commissioner of ORG ( PERSON ) , PERSON , applied to ORG ( S\u0105d Apelacyjny ) for proceedings to be instituted in the applicant \u2019s case on the grounds that he had lied in his lustration declaration by denying that he had cooperated with the secret services .","On DATE ORG decided to institute lustration proceedings against the applicant . The court was composed of CARDINAL judges : a judge rapporteur PERSON and judges GPE and GPE The decision contained the following reasons :","\u201c The Commissioner of ORG lodged with ORG an application for lustration proceedings to be instituted in respect of PERSON .","ORG finds that the application should be granted . The materials submitted together with the application point to the assessment ( wskazuj\u0105 na ocen\u0119 ) that PERSON lodged an untrue lustration declaration .","In those circumstances it has been decided as above . \u201d","On DATE ORG , acting as the firstinstance lustration court , found that the applicant had submitted an untrue lustration declaration because he had not revealed that he had intentionally and secretly collaborated with the ORG \u2019s secret services . The operative part of the judgment was served on the applicant ; however , the reasoning was considered \u201c top secret \u201d and , in accordance with LAW , could only be consulted in the secret registry of the court .","The applicant lodged an appeal .","On DATE ORG , acting as the secondinstance lustration court , allowed the applicant \u2019s appeal and quashed the impugned judgment .","On DATE the magazine ORG published an article on the applicant \u2019s lustration case and his alleged cooperation with the secret services . According to the applicant , the article relied on documents and information in the case file that had been classified \u201c top secret \u201d and was presented in a manner that made him believe that they had been obtained from the Commissioner of ORG .","On DATE the applicant applied to have the Commissioner , Mr B. Nizie\u0144ski , excluded from dealing with his case on the grounds that there was reasonable doubt as to his impartiality .","On DATE the First President of ORG decided that under domestic law he did not have the right to examine the applicant \u2019s challenge of the Commissioner as he could not be considered his superior within the meaning of LAW of the Criminal Procedure .","The applicant lodged a constitutional complaint against that decision . On DATE ORG ( PERSON ) refused to hear the complaint , mainly on the ground that it was not competent to decide on issues concerning gaps in the law . It reiterated its role as a \u201c negative legislator \u201d , in that it was called on to strike down laws that breached the LAW , but had no legislative powers . An appeal by the applicant against that decision was dismissed on DATE . The applicant \u2019s lawyer was notified of this decision on DATE . On DATE ORG decided to inform the PERSON that the case disclosed a gap in the law in that it had not provided for a procedure for challenging the Commissioner of ORG , nor an authority to which such a challenge could be directed . The closing of such a gap in the law was , in the court \u2019s opinion , indispensable to ensure the integrity of the legal system , and respect for the rule of law , defence rights and the right to court . The Commissioner of ORG , PERSON , took part in the proceedings up to the end of the applicant \u2019s lustration trial on DATE .","On DATE ORG gave a judgment in which it found the applicant guilty of lying in his lustration declaration . The court was composed of CARDINAL judges , including a judge rapporteur , PERSON","The written reasons , numbering CARDINAL pages , were considered \u201c top secret \u201d and could be consulted only in the secret registry .","On DATE the applicant \u2019s lawyer lodged an appeal . He complained , inter alia , that the judge , PERSON , who dealt with the case at the initial stage of the proceedings , should have been disqualified from dealing with the case as there was reasonable doubt as to his impartiality .","On DATE ORG , acting as a secondinstance lustration court , upheld the impugned judgment . The applicant could consult the written reasons for the judgment in the secret registry of the court .","On DATE the applicant \u2019s lawyer consulted the file and complained to the court that the reasoned judgment did not contain the dissenting opinion . The dissenting opinion , which was CARDINAL pages long , was submitted to the parties on DATE , DATE before the expiry of the time - limit for lodging a cassation appeal .","On DATE the applicant \u2019s lawyer lodged a cassation appeal with ORG ( S\u0105d Najwy\u017cszy ) . He argued that the applicant had not been aware of an obligation to disclose his activities for PERSON , \u201c AWO \u201d , a separate agency , which according to information in his possession could not be considered as belonging to the secret services within the meaning of LAW .","On DATE , after a hearing , ORG quashed both previous judgments of ORG of DATE and DATE and discontinued the lustration proceedings against the applicant ( umorzy\u0142 post\u0119powanie ) .","It established that the lustration declaration submitted by the applicant had been \u201c subjectively untrue but objectively true \u201d ( obiektywnie nieprawdziwe lecz prawdziwe subiektywnie o\u015bwiadczenie lustracyjne ) . When submitting his declaration the applicant had been misled by the CARDINAL most competent persons in the field , the Minister of Defence and the Head of ORG ( ORG ) , who had infb\u0142\u0105d usprawiedliwiony ) and the applicant was not found to have been a \u201c lustration liar \u201d .","Section CARDINAL of the DATE LAW , amended with effect from DATE , provides :","\u201c A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in LAW ( ORG ) if","CARDINAL ) no cassation appeal has been lodged within the prescribed time - limit ; or","CARDINAL ) NORP the cassation appeal has been left unexamined ; or","CARDINAL ) NORP the cassation appeal has been dismissed . \u201d","Section CARDINAL lists the consequences of such a judgment for a person subject to lustration who has submitted an untrue declaration . It reads , in so far as relevant :","\u201c CARDINAL . A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions , described according to the relevant laws as : unblemished character , immaculate reputation , irreproachable reputation , good civic reputation , or respectful of fundamental values . After DATE the judgment shall be considered to be of no legal effect .","A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it .","A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of DATE . \u201d","The detailed rendition of the provisions of the domestic law is set out in the ORG \u2019s judgment in the case ORG v. GPE , no . CARDINAL\/CARDINAL , ORG DATE ..."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102336","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF KUZMENKO v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in the town of GPE , GPE .","In TIME of DATE police officers arrested the applicant 's husband on suspicion of indecent behaviour in a public place and took him to a nearby police station situated in a dormitory building . The applicant accompanied him . According to the applicant , in response to her pleas for her husband 's release , a police officer , PERSON . , grabbed her hair and hit her head against a wall CARDINAL times . Then he handcuffed her to a radiator in a corridor of the dormitory . She was released TIME .","The Government disputed the applicant 's version of events , arguing that the applicant , who was drunk , had followed the police officers and her husband to the station , demanding to be informed of the reasons for her husband 's arrest and for him to be released . According to the ORG , the applicant attempted to resist her husband 's arrest , grabbing the officers ' uniforms and using obscene language . On arrival at the station the applicant attempted to block the entrance door and kicked officer PERSON . on the leg . After the police officers had locked the entrance door , the applicant broke a pane of glass in the door , unlocked it and entered the station . She accompanied her actions with threats of violence against the officers and said she would get them dismissed from the police force . Faced with violence and resistance on the applicant 's part , police officer PERSON . used physical force and handcuffed her .","In TIME DATE the applicant went to PERSON no . CARDINAL Hospital complaining of headache , nausea , dizziness and vomiting . She was diagnosed with concussion and prescribed outpatient treatment . The attending doctor also noted that the applicant had bruises on the forehead , chest , shoulders and occipital region of the head .","Criminal proceedings were instituted against officer PERSON . on a charge of abuse of position . The prosecutor 's office accused him of having caused the applicant injuries in the form of concussion , tissue damage and bruising on the left side of the face and of exceeding the limits of his official powers by handcuffing the applicant to a radiator .","On DATE the applicant was subjected to a forensic medical examination . Following the exam the expert issued a report which , in so far as relevant , read as follows :","\u201c [ there are ] a swelling of the soft tissues on the left side of the [ applicant 's ] forehead accompanied by a bluish and yellow bruise measuring QUANTITY in width and QUANTITY in length ... , [ and ] CARDINAL bruises measuring QUANTITY in width and QUANTITY in length and QUANTITY in width and QUANTITY in length on the back surface in the lower third part of her right shoulder . There are similar bruises on the palmar surface of the right forearm ( a bruise QUANTITY wide ) and on the rear of the right forearm ( CARDINAL bruises : QUANTITY wide and QUANTITY long and QUANTITY wide and QUANTITY long ) ; [ there is a bruise ] , measuring QUANTITY in width and QUANTITY in length , on ... the left shoulder , [ there are ] numerous similar bruises on the back of [ the applicant 's ] left wrist and left forearm ... measuring CARDINAL . \u201d","The expert concluded that the applicant had concussion and an injury and bruise on the face which had been caused recently by hard blunt objects and had caused minor damage to health . He listed numerous bruises on the applicant 's arms and shoulders , assessing that they too were the result of blows from a firm blunt object and had been incurred at the same time as the head injury . Finally , the expert addressed the possibility that the applicant had sustained a chest injury ; this was the preliminary diagnosis she received at the hospital . The expert observed no injuries on the chest , and found that there was no evidence in support of that preliminary diagnosis .","Following a second forensic medical examination of the applicant , on DATE , the expert 's findings were similar as to the location of the injuries and their nature and also established that the injuries could have been caused in the circumstances described by the applicant .","NORP In DATE the case was sent for trial to ORG of GPE . However , on DATE ORG returned the case to the prosecution with an order for certain procedural defects , which violated the defendant 's rights , to be corrected . The trial court further stressed that a comprehensive expert medical examination of the applicant was needed \u201c to settle certain inconsistencies in the first CARDINAL expert reports \u201d .","On DATE a comprehensive expert medical examination authorised by ORG confirmed that the applicant had had a craniocerebral injury comprising a bruise and an injury to the soft tissue of the left side of the forehead , an injury to the soft tissue of the occipital region and concussion , numerous bruises on the arms and an injury to the soft tissue on the left side of the chest resulting from the application , a number of times , of a hard blunt object with a small surface area . Noting that the injuries could have been caused in the circumstances described by the applicant , the experts went further and stated that the different location , in particular the fact that the bruises had been on the applicant 's forehead and the occipital region , and the quantity of the injuries , ruled out self - infliction .","On DATE ORG acquitted PERSON . of all charges , finding that his actions had not been criminal . The ORG based its judgment on statements by the defendant , the applicant and her husband , CARDINAL police officers , PERSON , PERSON , Mr T. and PERSON , DATE witnesses , PERSON , PERSON , PERSON , PERSON , and Ms I .. , and an opinion given by a forensic medical expert , PERSON statements were as follows :","- the defendant confirmed that on DATE he and his partner , PERSON , had arrested the applicant 's husband . The applicant , who was drunk , approached and demanded that her husband be released . She used offensive language , grabbed the police officers by their clothes and did not respond to their warnings . After the officers had entered the police station , the applicant tried to prevent them from closing the entrance door and kicked the defendant on the leg . When the defendant succeeded in closing the door , the applicant broke a pane of glass in the door , unlocked it and entered the building . The defendant noted that he had had no choice but to handcuff the applicant to a radiator near the entrance door . However , she continued acting violently . She broke another pane of glass in the entrance door and used offensive language . The defendant insisted that he had not beaten the applicant up . He could not explain the cause of the applicant 's injuries , noting that she had had no injuries before her husband 's arrest and that she could have hurt herself .","- the applicant confessed that , being under the influence of alcohol , she had tried to prevent her husband 's arrest and had grabbed the police officers by their uniforms and had used offensive language . She further stated that after she had broken a pane of glass in the entrance door and gone into the station , the defendant had grabbed her by the hair and hit her head CARDINAL times against a wall . He had then handcuffed her to a radiator .","- the applicant 's husband confirmed that his wife had accompanied him to the police station . At the station he had heard the sound of breaking glass , then his wife shouting , and then more breaking glass . He did not see how his wife had sustained the injuries .","- the witnesses , PERSON and PERSON , testified that they had seen the applicant and her husband during TIME of DATE , prior to the arrival of the police , and that they had not observed the alleged beatings by the police .","- the police officers , PERSON and PERSON , stated that they had arrived at the police station at TIME on DATE . They saw the applicant handcuffed to a radiator in a corridor . She was acting aggressively and was drunk . There was broken glass around her on the floor . She did not have any visible injuries . The police officers noted that PERSON . explained to them that he had handcuffed the applicant to calm her down . After the applicant was released she again threatened the police officers , using offensive language .","- the witnesses , PERSON and PERSON , informed ORG that on DATE , at TIME , they had gone along a corridor in the dormitory building . They noticed that the applicant was handcuffed to a radiator . She was drunk and aggressive and was using offensive language . The applicant did not make any requests or complaints .","- the witness , PERSON , who worked as a concierge in the dormitory , stated that she spoke to the applicant during the evening of QUANTITY DATE and that the applicant had confirmed that she had broken windows to draw attention to her situation .","- the police officer , PERSON , corroborated the statements made by the defendant .","- the police officer , PERSON , testified that the applicant had complained to him that the defendant had beaten her up . He saw a bruise on her arm , above the wrist , and an injury on her forehead . The applicant was sent for a medical examination .","- the expert , PERSON , informed ORG that on the instruction of a LOC assistant prosecutor he had performed a forensic medical examination of the applicant and had issued a report . He recorded that the applicant had concussion , tissue damage and a bruise on the face , a bruise on the right side of the forehead and bruises on the arms . The expert noted that his report was corroborated by the results of the compound forensic medical examination of the applicant .","Having examined the evidence , ORG held that there was no evidence that the defendant had beaten the applicant up . As regards the fact that the defendant had handcuffed the applicant , ORG held as follows :","\u201c The actions of the defendant , PERSON . , were lawful and valid and were caused by unlawful actions of the victim , [ the applicant ] , who had committed an offence . A special measure DATE handcuffs were lawfully applied to prevent an ongoing offence by [ the applicant ] , who acted unpredictably , created a dangerous situation for police officers and other individuals who passed through the corridor of the building . [ The applicant ] could have caused various injuries to individuals by breaking the panes of glass [ in the door ] . The victim did not need medical assistance , nor did she ask for it . The victim did not have visible injuries which required medical assistance . When he had handcuffed and arrested the spouses [ the applicant and her husband ] , the defendant , PERSON . , reported to ... his chief , thus fully complying with legal obligations . \u201d","The applicant and the prosecution appealed .","On DATE ORG upheld ORG findings . The judgment of ORG , as far as relevant , read as follows :","\u201c As regards injuries caused to the victim .","PERSON . emphatically stated that he had not beaten [ the applicant ] up . There are no eyewitnesses . The statements by the victim as to the cause of her injuries do not correspond to the findings of the forensic medical examinations .","Thus , as it follows from an expert report ... , [ the applicant ] had injuries in the form of concussion , an injury and bruising to the face , on the left side of the forehead . An expert , PERSON , who had performed the initial medical examination , was questioned at a hearing and stated that if it was confirmed that [ the applicant ] had hit her head it was possible that she had received those injuries , however , it was impossible to say precisely .","According to the conclusions of the comprehensive forensic medical examination , [ the applicant ] had injuries in the form of a craniocerebral trauma ( a bruise and injury to the soft tissues of the left side of the forehead , an injury to the soft tissues of the occipital region of the head , and concussion ) , numerous bruises on the arms , and an injury to the soft tissues of the left side of the chest .","Having regard to the general picture of the bodily injuries , the experts concluded that it would not have been possible for the victim to inflict them on herself .","However , in the present case the scope of the accusations only included injuries recorded on the forehead of the victim . [ The applicant 's ] injuries on the occipital region of her head and an injury on the chest were not included in the accusations against PERSON . Taking this fact into account , the prosecution and the court can not overstep the bounds of the indictment and can not examine at the court hearing any additional questions which could lead to further charges .","The court also finds that those injuries can not be taken into consideration when deciding on the question whether the applicant could have caused those injuries to herself . The prosecution thus did not rebut PERSON 's argument that [ the applicant ] could have herself caused the injury to the left side of the head which led to the concussion . \u201d","On DATE the applicant lodged an action against the GPE Town police department and ORG , claiming compensation for non - pecuniary damage caused by the unlawful actions of PERSON .","On DATE ORG , GPE , relying on the judgment of CARDINAL DATE of the same court , dismissed the applicant 's action . ORG held that PERSON 's guilt in having caused the injuries had not been proven . Referring to LAW , ORG noted \u201c the character \u201d of the applicant 's injuries and the fact that neither the applicant nor PERSON . had explained \u201c the mechanism of the appearance of injuries \u201d and it held that \u201c the injuries could have been caused accidentally when lawful sanctions were being applied to the plaintiff \u201d . ORG considered that the actions resulting in those injuries could not amount to \u201c torture \u201d .","On DATE ORG upheld the judgment of DATE , relying on the findings of ORG made during the trial against PERSON .","The Code of Criminal Procedure of GPE ( in force since DATE , \u201c the CCrP \u201d ) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities ' own initiative , where there are reasons to believe that a crime has been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( Article CARDINAL ) . He \/ she can order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there are no grounds to initiate a criminal investigation , the prosecutor or investigator issues a reasoned decision to that effect , which has to be notified to the interested party . The decision is amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction within a procedure established by LAW Article CARDINAL ) . Article CARDINAL of the ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .","Police officers are only entitled to use physical force , special means and firearms in the cases and within the procedure established by LAW ; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by LAW ( section CARDINAL ) .","Section CARDINAL of LAW provides that a police officer resorting to physical force , special means or a firearm , should warn an individual that force \/ special means \/ firearms are to be used against him . In cases when a delay in the use of force , special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage , such a warning is not necessary . Police officers should ensure that damage caused by the use of force \/ special means \/ firearms is minimal and corresponds to the character and extent of the danger posed by unlawful conduct and the perpetrator , and the resistance offered by the perpetrator . Police officers should also ensure that individuals who have been injured as a result of the use of force \/ special means \/ firearms receive medical assistance .","Under LAW of LAW police officers may use physical force , including combat methods , to prevent criminal and administrative offences , to arrest individuals who have committed such offences , to overcome resistance to lawful orders , or if non - violent methods do not ensure compliance with responsibilities entrusted to the police .","Sections DATE and CARDINAL of LAW lay down an exhaustive list of cases when special means , including handcuffs , and firearms may be used . In particular , handcuffs may only be used to overcome resistance offered to a police officer , to arrest an individual caught when he is committing a criminal offence against life , health or property and if he is attempting to escape , and to bring arrestees to police stations , to transport and protect them if their behaviour allows the conclusion that they are liable to escape , cause damage to themselves or other individuals or offer resistance to police officers ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5676","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2001,"docname":"M.S.S. v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant is a NORP national , born in DATE and living in GPE , GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE ORG made a decision that the applicant was due to pay residual taxes since he had not announced certain income in the amount of FIM CARDINAL,CARDINAL in his tax returns . The applicant was also obliged to pay a PERCENT tax increase on the amount . The decision was based on a tax audit in a company called AT . This company had paid ORG CARDINAL to the limited company ORG , which was owned by the limited partnership company ORG . The applicant was the only active partner of ORG , which owned PERCENT of the shares of F.","On DATE the applicant appealed to ORG ( l\u00e4\u00e4ninoikeus , l\u00e4nsr\u00e4tten ) of PERSON , complaining that the decision was wrong and that he had not been informed of the legal provisions on which the decision was based . The appeal was referred to the local tax rectification board ( verotuksen oikaisulautakunta , pr\u00f6vningsn\u00e4mnden i beskattnings\u00e4renden ) which , on DATE , rejected the appeal .","On DATE the applicant again appealed to ORG . On DATE the court lowered the tax increase from PERCENT and upheld the remainder of the decision . The court stated that the payment of the amount of FIM CARDINAL,CARDINAL was considered to be the applicant \u2019s personal income since he had received payment for his actions related to a sales contract concerning an airplane . The payment was considered to be the applicant \u2019s personal income , even though he had waived his right to the amount in favour of company F. Further the court noted that , as the applicant had not announced that amount in his tax returns , the tax office had a right to order the payment of a residual tax and impose a tax increase . Finally , the court rejected , for lack of a legal basis , the applicant \u2019s request that the taxes already paid by companies AT and F on the same ground be counted for his benefit .","On DATE ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) refused the applicant \u2019s request for leave to appeal .","On DATE ORG collected from the applicant ORG CARDINAL,CARDINAL as residual taxes , FIM CARDINAL,CARDINAL as a payment of back taxes , additional taxes amounting to ORG CARDINAL,CARDINAL , default interest of ORG CARDINAL,CARDINAL and FIM CARDINAL as execution fee , altogether ORG CARDINAL ( \u20ac MONEY ) . After the decision of ORG the applicant was refunded ORG CARDINAL,CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60323","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2002,"docname":"CASE OF PAUL AND AUDREY EDWARDS v. THE UNITED KINGDOM","importance":1,"conclusion":"Violation of Art. 2 as regards circumstances of the applicant's son's death;Violation of Art. 2 as regards the failure to provide an effective investigation;No separate issue under Art. 6 or 8;Violation of Art. 13;Non-pecuniary damage - financial award","judges":"Ireneu Cabral Barreto;Nicolas Bratza","text":["The facts of this case were subject to investigation before a private , non - statutory inquiry , which issued a report on DATE , setting out extensive findings of fact . As these were not contested by the parties , the ORG has relied on the report in its own assessment of the facts below .","Prior to his death , PERSON had shown signs of developing a serious mental illness . In DATE a psychiatric assessment expressed the tentative diagnosis of schizophrenia . In DATE he stopped living at home with the applicants , his parents . At this time he stopped taking his medication .","On DATE PERSON , then DATE , was arrested in GPE by the police and taken to GPE police station . He had been approaching young women in the street and making inappropriate suggestions . His behaviour before arrest , and at the police station where he attempted to assault a policewoman , led police officers to suspect that he might be mentally ill . He was assessed at the police station by an approved social worker , who discussed the matter on the telephone with a consultant psychiatrist . They agreed that , while there was some evidence of possible developing schizophrenia , he did not need urgent medical attention and that he was fit to be detained at the police station . Any psychiatric assessment could take place as part of a pre - sentencing exercise . PERSON was held in a cell on his own . The police officer responsible did not fill in a CIDCARDINAL form identifying PERSON as an exceptional risk on ground of mental illness due to the opinion expressed by the social worker . The police officer did , however , note in the confidential information form ( DATE ) her belief that if PERSON was not treated or seen by the mental health team he might seriously harm a female . She was not aware that her own suspicion of his mental state was sufficient to warrant categorising PERSON as an exceptional risk .","On DATE PERSON was brought to ORG . Immediately his handcuffs were removed , he pushed through the other prisoners and confronted a female prison officer . He was restrained , but struggled and tried to approach her again . He was placed in a cell on his own . During the morning , he continually banged on the cell door and shouted : \u201c I want a woman . \u201d He shouted obscenities about women . The applicants met the duty solicitor at TIME and explained that their son was mentally unwell and that they wanted him to receive medical care and not to be remanded in custody . When the duty solicitor attempted to talk to PERSON in his cell , he received no assistance from his client who continued to make obscene suggestions about women . The duty solicitor discussed the problem with ORG .","NORP On his way to court and in the courtroom , PERSON repeated his earlier comments about women . The prosecutor had in her possession the MGCARDINALA form and had been requested by the police to obtain his remand in custody as there was a risk that he would reoffend and there was a real question mark about his mental state . The prosecutor informed the court that he was perceived as a risk to women , although it is unclear how much detail was given . She relied on the fact that an assessment by a psychiatrist had not yet been carried out in support of her application . Consideration was given by the PERSON , together with the prosecutor , duty solicitor and ORG 's ORG as to whether he could be remanded to hospital . It was concluded that there was no power to do so under LAW DATE . No consideration was given , inter alia , to the application of civil provisions ( sections CARDINAL , CARDINAL or DATE of the Mental Health Act DATE ) or to section CARDINAL of LAW , which provided for remand to a hospital for assessment .","The magistrates decided to remand PERSON in custody for DATE , which was a shorter period than usual , bringing forward the date to DATE so that instructions could be taken and legal aid forms completed . Further consideration would then be given , inter alia , to the obtaining of a psychiatric report . After the hearing , the first applicant telephoned the probation service in GPE and expressed concern about his son 's mental health . He was advised to contact FAC . He rang the probation officer at the prison and informed her of his son 's medical history . Her telephone note indicated that she had been told that he had been prescribed stelazine , though he had been refusing to take it or accept that he was mentally ill . The probation officer visited the health care centre and spoke to the senior medical officer , PERSON Although there was later dispute as to how much detail she passed on to the doctor , he recalled being informed that PERSON was considered to be a risk to women . However , having regard to the psychiatric social worker 's comments that PERSON was fit for detention in a police station and the fact that the court had not ordered any psychiatric reports , he stated that he would not interfere with the usual admissions procedure which meant that PERSON would be screened on arrival in the usual way and his location in the prison would depend on the result of that process . Neither he nor the probation officer passed on any of this information to the reception staff .","A prison officer returning to ORG from the ORG informed the officer in charge of reception staff that a female prison officer had been assaulted by a prisoner who was due to arrive DATE . The police officers at the ORG custody area suspected from his behaviour that PERSON was mentally abnormal and might be a threat to women and decided to warn the prison staff . A police officer rang and spoke to the senior officer at the prison reception and told him , inter alia , that the magistrates had wanted to remand PERSON to a mental hospital and that he had assaulted a female prison officer . The senior officer was concerned at this information and contacted ORG to verify whether he was being remanded under a normal warrant . He also spoke to the duty governor about the allocation of PERSON and it was decided , subject to the health care screening , that he should be located on wing ORG where no female officers worked .","In TIME , PERSON was taken to ORG . The reception staff were aware of the information passed on from the police at the ORG and that he was a potential danger to women . He was placed in a holding area while the other prison arrivals were processed . His behaviour was noted as \u201c strange \u201d and \u201c odd \u201d and when being placed in the holding cell he was aggressive and tried to punch a prison officer . After TIME he was screened by Mr N. , a member of the prison health care staff , who saw no reason to admit him to the health care centre . Mr N. knew nothing about previous discussions in the court or the concerns passed on to the prison about PERSON mental health . He was only aware that PERSON was alleged to have assaulted a female police constable . Mr PERSON followed the standard questionnaire . To question CARDINAL ( Have you ever been seen by a psychiatrist ? ) , the answer was \u201c DATE \u201d . PERSON did not disclose that he had been taking stelazine . There was no evidence of active mental disturbance or bizarre behaviour during the interview , which was unlikely to have lasted TIME . No medical officer was on duty at the centre at this time , or was present in the prison . PERSON was admitted to the main prison and placed in cell DCARDINAL - DATE .","He was detained in a cell on his own during this period .","Meanwhile , PERSON was arrested in GPE on CARDINAL DATE for assaulting his friend and her neighbour . At GPE police station , he was seen by a police surgeon as it was suspected that he was mentally ill . The police surgeon certified that PERSON was not fit to be detained . PERSON was assessed by a psychiatric registrar who consulted on the telephone with a consultant psychiatrist , who decided that he did not need to be admitted to hospital and that he was fit to be detained . PERSON was transferred to GPE police station , where the police surgeon also found him fit to be detained . While his conduct before and after arrest was bizarre , it was attributed by the doctors to the effects of alcohol abuse , amphetamine withdrawal and to a deliberate attempt to manipulate the criminal justice system . The registrar , who had previously treated PERSON , knew that he had been diagnosed at various times as suffering from schizophrenia or as having a personality disorder , but also knew him as someone who became ill when abusing alcohol and drugs . Over DATE , PERSON showed further bizarre behaviour and was violent towards police officers . He was not reassessed by a doctor . No CIDCARDINAL form was filled in , although police officers remained of the opinion that he was mentally ill . On DATE PERSON was remanded in custody by ORG . The magistrates were presented with a \u201c sane but dangerous \u201d description of him . PERSON arrived at FAC shortly after PERSON , where he was screened by the same member of the prison health care service who had seen PERSON and who saw no reason to admit him to the health care centre . PERSON did not behave in a bizarre fashion during the screening . Mr N. did not have knowledge of PERSON previous convictions , which would have alerted him to his admittance to hospital in DATE .","Initially , PERSON was placed in cell DCARDINAL - DATE on his own . He was then moved into cell DCARDINAL - CARDINAL with PERSON . This was due to shortage of space , as all the other cells on the landing were doubly occupied .","Each cell had a green emergency light situated on the wall outside the cell next to the door which came on when the call button was depressed inside the cell . Additionally , once the button was pressed , a buzzer sounded on the landing and a red light lit up on a control panel in the office on the landing concerned , indicating the cell . The red light remained on and the buzzer continued to sound even if the prisoner ceased to press the button . At TIME , either PERSON or PERSON pressed the call button . A prison officer saw the green light outside the cell and was told that they wished one of the cell lights , operated from the exterior , to be switched off . He agreed to do so . He saw that the CARDINAL men appeared to be \u201c getting on all right \u201d . He noticed that while the green light had gone on the buzzer which should have been sounding continuously had not done so . He did not report the apparent defect .","Shortly before TIME on DATE , a prison officer heard a buzzer sound . He saw no red light on the D - landing control panel and saw a prison officer go to check the other landings . Some time later , he heard continuous banging on a cell door on his landing . On going to investigate he saw the green light on outside cell DCARDINAL - CARDINAL . Looking through the spy hole , he saw PERSON holding a bloodstained plastic fork and noticed blood on the floor and on PERSON 's feet . There was a delay of TIME while officers donned protective clothing . They entered the cell to find that PERSON had been stamped and kicked to death . PERSON was making continual reference to being possessed by evil spirits and devils . D - landing had previously been patrolled at TIME , which indicated that TIME could have elapsed since the pressing of the cell 's call button .","At the time of the attack , PERSON was acutely mentally ill . He was transferred later on DATE to ORG .","On DATE PERSON pleaded guilty at ORG to the manslaughter of PERSON by reason of diminished responsibility . The trial was therefore brief . The judge imposed a hospital order under LAW of LAW DATE ( \u201c the DATE LAW ) , together with a restriction order under section CARDINAL . PERSON is currently still at ORG , diagnosed as suffering from paranoid schizophrenia .","A coroner 's inquest had been opened but adjourned pending the criminal proceedings against PERSON . After PERSON conviction , the coroner closed the inquest , as there was no obligation to continue in those circumstances .","On DATE the applicants were advised by the Assistant Chief Constable that it was considered that there was insufficient evidence to establish the offence of manslaughter by gross negligence on the part of anyone involved in the case but that the matter would be probably reviewed at the conclusion of the inquiry which had been commenced by the statutory agencies concerned in the case .","NORP In DATE a private , non - statutory inquiry was commissioned by CARDINAL ORG agencies with statutory responsibilities towards PERSON \u2013 ORG , ORG and ORG . Its terms of reference were :","\u201c To investigate the death of PERSON in FAC , including factors in his and Mr PERSON 's detention which are relevant to that , and in particular : the extent to which their reception , detention , management and care corresponded to statutory obligations , ORG and local operational policies .","To examine the adequacy , both in fact and of relevant procedures , of collaboration and communication between the agencies ( ORG , ORG , the courts , ORG and its predecessor , and ORG ) involved in the care , custody and control of Mr PERSON and Mr PERSON , or in the provision of services to them .","To examine the circumstances surrounding the arrest , detention and custody of Mr PERSON and Mr PERSON by ORG , including whether all relevant information was effectively and efficiently passed between GPE , the prison service , the courts , and any other relevant agencies ... ;","To examine all the relevant circumstances surrounding the treatment and care of PERSON and PERSON , by the health service and social services , and in particular : the extent to which PERSON and PERSON care corresponded to relevant statutory obligations , relevant guidance from ORG ... and local operational policies .","To prepare a report and make recommendations to ORG , ORG and ORG , and other such agencies as are identified as appropriate ... \u201d","In DATE the applicants were advised by their solicitors that they had a claim for funeral costs and a potential claim for compensation and any pain and suffering between PERSON injury and death , but that taking into account legal costs it would not be economic to bring such a claim .","NORP In DATE , ORG awarded the applicants MONEY ( GBP ) for funeral expenses but decided that there should be no dependency or bereavement award .","The inquiry opened in DATE . It was chaired by PERSON , ORG , the other members of the panel consisting of Professor PERSON ( Emeritus Professor of ORG at ORG ) , Mr PERSON ( former Director of ORG , ORG and member of ORG ) , Mr PERSON ( former Governor of ORG and FAC and ORG Deputy Chief Inspector of Prisons DATE ) and Mr PERSON ( Commissioner of GPE DATE ) . They were assisted by a firm of solicitors appointed by the commissioning agencies to provide secretarial and administrative support and to arrange for the attendance of witnesses . CARDINAL solicitors from this firm were appointed as advocates to the inquiry .","The inquiry received evidence on DATE over DATE . It sat in private . It had no powers of compulsion of witnesses or production of documents . CARDINAL prison officers refused to give evidence . The inquiry report later noted that CARDINAL of these had potentially significant evidence and his refusal was said to be \u201c all the more regrettable since he had passed by PERSON cell shortly before he met his death \u201d . The inquiry panel conducted visits to the police stations , ORG building and prison concerned . Professor PERSON , a member of the panel , interviewed PERSON in hospital . CARDINAL witnesses attended the inquiry to give evidence , while a considerable number of others submitted written evidence .","In DATE the applicants issued a summons in ORG for negligence against the Chief Constable of GPE and ORG . They did not , however , serve it due to legal advice from their solicitors .","Draft extracts of the inquiry 's preliminary findings were circulated to those subjected to criticism to allow them the opportunity to comment . A number of witnesses were recalled to give evidence on DATE .","The inquiry report was published on DATE . It concluded that ideally PERSON and PERSON should not have been in prison and in practice they should not have been sharing the same cell . It found \u201c a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner \u201d . It identified a series of shortcomings , including poor record - keeping , inadequate communication and limited inter - agency cooperation , and a number of missed opportunities to prevent the death of PERSON .","The findings included the following :","( a ) Ideally , if suitable beds had been available , PERSON should have been admitted to hospital for assessment under LAW .","( b ) It was a serious omission , and breach of LAW under LAW DATE ( \u201c PACE \u201d ) , that no doctor had been asked by the custody officer to see PERSON .","( c ) It was a serious failure by GPE Police that a CIDCARDINAL form was not completed describing PERSON as a prisoner reasonably suspected of being an exceptional risk on the grounds of mental disturbance , though it was noted that even if he had been so described by the police this would not have been enough , by itself , to ensure that he was admitted to the health care centre at FAC .","( d ) At the Magistrates ' Court hearing on DATE no consideration was given to LAW which provided for a remand to hospital for assessment .","( e ) No attempt was made by the court to notify the prison authorities , in particular the senior medical officer , that PERSON was suspected of suffering from a mental illness .","( f ) ORG provided to the prison by the applicants about PERSON psychiatric background was not recorded or passed on to the person carrying out the screening .","( g ) When PERSON arrived at FAC there was no medical officer on duty , in breach of ORG .","( h ) The prison health care worker , PERSON , who assessed PERSON was inadequately trained in the recognition of mental disorder and had been given insufficient guidance . The screening was rushed and superficial and did not take place in adequate conditions of privacy .","( i ) Mr N. had not been provided with any information about the concerns as to PERSON mental condition by the police or the court . If he had received a CIDCARDINAL form identifying mental disturbance or the court had expressed some concern , this might have prompted sufficient residual doubts to cause him to err on the side of caution and have him admitted to the health centre for TIME .","( j ) The cell 's call system was defective ; it had been pressed up to TIME before the alarm was raised by PERSON banging on the door and the warning buzzer had not sounded , or if it did it only sounded briefly . If it had functioned , a prompt response might have saved PERSON life . The system could be disabled simply by wedging a matchstick behind the re - set button on the control panel and it could not be ruled out that it might have been tampered with by a prison officer or prisoner who wanted a \u201c quiet night \u201d . The fact that it could so easily be disabled rendered the system inadequate and unsafe . It was also noted that according to good practice , where the cell 's call system was defective , either the occupants should be moved to another cell or effective visual monitoring should be provided , as a cell could not be certified fit for occupation without a method of communication in working condition .","( k ) PERSON had a history of violent outbursts and assaults , including a previous assault on a cell - mate in prison . He had been admitted to mental hospital in DATE , and subsequently had been diagnosed as suffering from schizophrenia . Despite psychotic episodes and further assessments , he was not admitted to hospital after DATE , as he was not considered to be suffering from acute mental illness . A case conference was held on DATE , where CARDINAL of PERSON general practitioners and a police officer expressed the view that he was capable of serious violence or murder . However , no formal risk assessment was carried out . The consultant psychiatrist did not accept that the risk to public safety was serious and it was decided to make CARDINAL last attempt to induce PERSON to take depot medication before detaining him under LAW . On DATE , it was reported to the consultant that PERSON was refusing depot medication .","( l ) After PERSON arrest on DATE , no attempt was made to locate his medical notes before being assessed . The psychiatric registrar was unaware of the case conference or the outline plan to detain him .","( m ) No CIDCARDINAL form was filled in by the police for PERSON despite his attacks on CARDINAL officers , as the officer concerned did not know that such a form existed .","( n ) NORP The police , prosecution and magistrates were aware that PERSON was described as dangerous but no formal warning was given to the prison authorities .","( o ) At FAC , PERSON was screened by Mr DATE , who knew nothing about him except that he had been \u201c difficult \u201d in the police station ; although the provision of a CIDCARDINAL form would not have been conclusive , information about his previous convictions ( and admittance to hospital ) might have prompted a closer appraisal and he might have had sufficient doubts to have him admitted to the health care centre despite the absence of really bizarre symptoms .","Following the publication of the report , the applicants sought advice as to whether there were any civil remedies available to them in the light of the findings of the inquiry . At a conference on DATE , they were advised by counsel that there were still no available civil remedies . The inquiry had made no relevant findings in relation to whether any time elapsed between their son being injured and his death , which would have determined whether they had any action in respect of pain and suffering experienced by their son before he died .","NORP By letter of CARDINAL DATE , ORG maintained their previous decision that there was insufficient evidence to proceed with criminal charges . The applicants ' counsel advised on DATE that , notwithstanding the numerous shortcomings , there was insufficient material to found a criminal charge of gross negligence against any individual or agency .","By letter dated DATE , ORG ( ORG ) provided the applicants with a report on their complaints about police conduct in dealing with PERSON and on the subsequent investigation into his death . The report upheld CARDINAL of the complaints and made a number of recommendations to ORG in relation to practice and procedure . It found , inter alia , a breach of LAW under PACE in that the police failed to summon a doctor to the police station when PERSON behaviour led them to believe that he might be suffering from a mental illness and that , as regarded the failure of the officers to fill in a CIDCARDINAL form identifying PERSON and PERSON as exceptional risks on grounds of mental disturbance , the officers concerned had been insufficiently informed as to the existence and purposes of the form . It also upheld complaints about the police investigation after the death , including a failure by the police investigators to test the cell buzzer properly to establish its effectiveness , the loss of the list of prisoners held on the relevant landing on TIME of the incident and a failure to interview relevant persons in the prison , for example , PERSON , the health care worker , the prison doctor and the prison probation officer concerning the allegation of criminal negligence raised by the applicants .","Under the common law , no one can recover damages in tort for the death of another .","LAW CARDINAL confers a right of action for a wrongful act causing death . LAW ) provides :","\u201c If death is caused by any wrongful act , neglect or default which is such as would ( if death had not ensued ) have entitled the person injured to maintain an action and recover damages in respect thereof , the person who would have been liable if death had not ensued shall be liable to an action for damages , notwithstanding the death of the person injured . \u201d","However , the statutory right of action is reserved to the deceased 's dependants ( section CARDINAL ) which allows the recovery of their pecuniary loss ) . If there are no dependants , there is no pecuniary loss to recover as damages . Bereavement damages ( fixed at GBP CARDINAL ) are only available to the parents of a child under DATE ( section CARDINALA(CARDINAL ) ) . Funeral expenses are recoverable ( section CARDINAL(CARDINAL ) ) .","LAW ( Miscellaneous ) LAW DATE provides for the survival of causes of action for the benefit of the deceased 's personal estate . The relevant part of section CARDINAL(CARDINAL ) provides :","\u201c Subject to the provisions of this section , on the death of any person after the commencement of this LAW all causes of action subsisting against or vested in him shall survive against , or , as the case may be , for the benefit of , his estate . \u201d","This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died , including any non - pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death . Where death is instantaneous , or where it can not be proved that the deceased experienced pain and suffering before death , damages are not recoverable under LAW and the only recoverable amount would be funeral expenses .","CARDINAL cases have arisen since the entry into force on DATE of LAW DATE concerning deaths in custody in which the domestic courts have examined the requirements of LAW and CARDINAL of the Convention .","In NORP on the application of PERSON v. the Secretary of ORG for ORG ( [ DATE ] ORG , ORG and GPE ) CARDINAL , DATE ) , proceedings were brought by the mother and aunt of a man who died in custody as a result of a severe asthma attack in which it was alleged that his treatment prior to his death did not comply with ORG CARDINAL or CARDINAL of the ORG and that there had been a failure to provide a proper investigation into his death . ORG found that it was arguable that ORG had breached ORG and CARDINAL in its treatment of this prisoner and that , as the inquest and civil proceedings did not constitute an effective official investigation for the purpose of the procedural obligations under these provisions , the claimants were entitled to an order that the Secretary of ORG set up an independent investigation into the circumstances of the death . Although the death had occurred prior to DATE , the court held that there was a continuing obligation after that date to provide an effective investigation in the special circumstances of that case where the death was still the subject of active debate and controversy .","In NORP on the application of PERSON v. the Secretary of ORG for ORG ( [ DATE ] ORG , ORG and GPE ) CARDINAL , DATE ) , where DATE PERSON was bludgeoned to death by a violent and racist prisoner , there was a claim that the Secretary of ORG had failed to hold an open and public investigation into the circumstances of the death . ORG found that internal inquiry by ORG and the criminal trial of the assailant did not constitute an effective investigation for the purposes of the procedural obligation under LAW , principally as it did not establish why on that night PERSON was sharing a cell with his assailant . The claimants were accordingly entitled to a declaration that an independent public investigation with the family legally represented , provided with the relevant material and able to cross - examine the principal witnesses , must be held to satisfy the obligations imposed by LAW ."],"violated_articles":["13","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70034","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"SKOTNICZNY v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is an NORP national who lives in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant brought an action before FAC ( S\u0105d Rejonowy ) claiming that joint ownership of a property located in GPE at FAC , co - owned by him and CARDINAL other persons , be dissolved .","The proceedings were terminated by the decision of ORG of DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before FAC .","On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","Section CARDINAL of the CARDINAL Act reads , in so far as relevant :","Section CARDINAL reads , in so far as relevant :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","... \u201d","On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103043","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2011,"docname":"CASE OF BLOCK v. HUNGARY","importance":3,"conclusion":"Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-a - Prompt information);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos","text":["The applicant was born in DATE and lives in Bad GPE , GPE .","ORG indicted the applicant for preparation to counterfeit money ( section CARDINAL of LAW ) .","On DATE ORG found the applicant guilty as charged and sentenced him to a fine .","On appeal , ORG held a public session and completed the findings of fact as established by ORG . It observed that the defendant 's act could be re - characterised as attempted aggravated fraud ( section CARDINAL of LAW ) and enquired as to whether he wished to have an adjournment on that account . The applicant replied in the negative .","On DATE ORG reversed the first - instance judgment and re - characterised the applicant 's offence as forgery of public documents ( section CARDINAL of LAW ) . The applicant submitted that there had been no taking of evidence in this regard before ORG . His sentence remained unchanged ; nevertheless , he filed a petition for review .","On DATE ORG held a public session and upheld the applicant 's conviction without taking evidence . In the reasoning of that decision , it was observed that the judgment of ORG amounted to a violation of the substantive provisions of LAW in that although the applicant , a national of GPE , had committed the crime in question abroad , the lower courts had not explored whether his act was punishable under NORP law or obtained the Attorney General 's requisite endorsement of the indictment . However , ORG held that the applicant 's deed in fact constituted the offences of complicity in attempted aggravated fraud ( section CARDINAL of LAW ) and in forgery of private documents ( section CARDINAL of LAW ) . It did not change the sanction imposed on the applicant . This decision was served on DATE .","Section CARDINAL(CARDINAL ) of LAW provides that a person who prepares a forged official document or falsifies the contents of an official document , uses a fake or forged official document or an official document issued under the name of another person , or co - operates in the inclusion of untrue data , facts or declarations in an official document regarding the existence , change or termination of a right or obligation , commits the felony of forgery of official documents .","According to section CARDINAL of LAW , a person who uses a fake or forged private document or a private document with untrue contents for providing evidence for the existence , change or termination of a right or obligation , commits the offence of forgery of private documents .","Under section CARDINAL ) of LAW , a person who copies or forges money with the purpose of distribution , obtains counterfeit or forged money with the purpose of distribution , exports or imports such money or transports it through the territory of the country , or distributes counterfeit or forged money commits the felony of counterfeiting money .","According to section CARDINAL(CARDINAL ) of LAW , a person who deceives someone , or maintains someone 's deception , in order to make unlawful gains , commits the offence of fraud , provided that actual damage has occurred as a result of his conduct ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-a","6-3-b"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61521","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2003,"docname":"CASE OF M.C. v. BULGARIA","importance":1,"conclusion":"Violation of Art. 3 and 8;No separate issue under Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant is a NORP national who was born in DATE .","She alleged that she had been raped by CARDINAL men on DATE and CARDINAL DATE , when she was DATE and DATE . The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex .","On DATE the applicant and a friend of hers had been waiting to enter a disco bar in the town of PERSON , when CARDINAL men , P. ( DATE at the time ) , A. ( DATE at the time ) and V.A. ( age not specified ) , arrived in a car owned by ORG applicant knew ORG She had met PERSON in the same disco bar and had danced with him once . PERSON was the older brother of a classmate of hers .","A. invited the applicant to go with him and his friends to a disco bar in a small town QUANTITY away . According to the applicant , she agreed on condition that she would be back home before TIME","In the bar , CARDINAL or CARDINAL of the group had drinks . The applicant saw some friends , with whom she had a short chat . According to the applicant , she repeatedly told the others it was time to leave , as it was getting late .","At some time late in the evening , the group left and headed back to PERSON On the way , they were briefly stopped and checked by traffic police .","A. then suggested stopping for a swim at a nearby reservoir . According to the applicant , they went there despite her objections . She submitted that she had not suspected the men 's intentions .","At the reservoir , the applicant remained in the car , in the front passenger seat , saying that she was not interested in swimming . The CARDINAL men headed towards the water . Soon afterwards , PERSON came back and sat in the front seat next to the applicant .","In her statements to the investigating authorities , the applicant submitted that P. had then pressed his body against hers , proposed that they \u201c become friends \u201d and started kissing her . The applicant had refused his advances and had asked him to leave . P. had persisted in kissing her while she had tried to push him back . He had then moved the car seat back to a horizontal position , grabbed her hands and pressed them against her back . The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation . She had not had the strength to resist violently or scream . Her efforts to push P. back had been unsuccessful , as he had been far stronger . P. had undressed her partially and had forced her to have sexual intercourse with him .","In her testimony , the applicant stated : \u201c It was my first time and it hurt a lot . I felt sick and I wanted to throw up . I started crying . \u201d","According to P. 's statements , he had had sex with the applicant in the car with her full consent . He had started kissing her , she had responded , and he had tried unsuccessfully to unbutton her jeans or loosen her belt , whereupon she had done so herself and had taken off her pants .","After P. had finished , he left the car and walked towards NORP and V.A. In his submissions to the police , PERSON said that PERSON had told them that he had \u201c shagged \u201d the applicant . Shortly afterwards , the CARDINAL men returned to the car and the group drove off .","In her submissions to the investigator , the applicant stated that she had later come to suspect that the CARDINAL men had planned to have sex with her and had invented the pretext of swimming to drive to a deserted area . In particular , she did not remember PERSON and GPE being wet when they had come back to the car , although they had insisted on going to the reservoir for a swim .","The applicant later testified that after the first rape she had been very disturbed and had cried most of the time . According to the version of events given by PERSON when later questioned , the applicant had been in an excellent mood , had started caressing PERSON , which had irritated PERSON , and had asked to go to a bar or a restaurant . The group had gone to a restaurant , where the applicant had briefly talked with PERSON , the singer performing there . PERSON had been sitting at a table there with CARDINAL Mr M.","PERSON , the singer , stated that on DATE she had been in the restaurant with PERSON Shortly after TIME the applicant , whom she knew vaguely , had approached her and asked whether her group would be performing in DATE . PERSON recalled having seen at that moment a man waiting at the door . Having heard the answer to her question , the applicant had left . PERSON stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour .","Mr M. was also questioned by the police . He stated that he knew the applicant very well and that he did not remember having seen her that night .","The applicant disputed the statements of P. , NORP , GPE and PERSON , maintaining that there had been no visit to a restaurant and that she did not know PERSON The applicant and her mother later accused PERSON of perjury ( see paragraphs CARDINAL - CARDINAL below ) .","Instead of returning to PERSON , at TIME the group went to a neighbouring town , where ORG relatives had a house . A. , V.A. and the applicant got out of the car . P. , who was the owner of the car , drove off .","The CARDINAL men and a baker , Mr S. , called by them as a witness , later maintained that in the meantime there had been a short stop at Mr S. 's bakery . Mr S. allegedly had the key to the house . Mr S. , when interrogated , stated that at TIME he had given the key to V.A. and had seen the applicant waiting in the car , apparently in a good mood . Loud music had been coming from the car . The applicant disputed that there had been any visit to a baker 's shop and accused the baker of perjury . P. , NORP and GPE submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and did not want to go back home .","The applicant stated to the police that she had felt helpless and in need of protection . As PERSON was the brother of a classmate of hers , she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house .","There was CARDINAL bed in the room and the applicant sat on it . The CARDINAL men smoked and talked for a while . V.A. then left the room .","The applicant maintained that at that point A. had sat next to her , pushed her down onto the bed , undressed her and forced her to have sex with him . The applicant had not had the strength to resist violently . She had only begged the man to stop . She later related in her statement :","\u201c I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet . Then he spread my legs apart with his legs and forced his way into me ... [ After he finished ] I started crying and I continued crying until some time in the morning , when I fell asleep ... [ V.A. ] woke me up telling me that [ A. ] had gone to find a car to drive me back to PERSON I sat on the bed and started crying . \u201d","A. 's position before the police was that he had had sex with the applicant with her full consent .","On TIME at TIME , the applicant 's mother found her daughter in the house of ORG relatives . The applicant 's mother stated that , having learned from neighbours that her daughter had been seen the previous evening with A. , she had been on her way to A. 's house when she had met V.A. in the street . V.A. had allegedly tried to mislead the applicant 's mother in an effort to gain time and warn A. However , she had insisted .","The applicant and her mother maintained in their submissions during the investigation that the applicant had told her mother right away that she had been raped . A. had also been there . He had told the applicant 's mother that \u201c a truck driver \u201d had had sex with her daughter the previous night .","According to ORG 's version of events , the applicant and her mother had quarrelled , the applicant allegedly refusing to go with her and telling her to go away . A neighbour , apparently named as a witness by A. or V.A. , stated that he had heard the quarrel and , in particular , the refusal of the applicant to leave with her mother and her saying that nothing had happened to her . The applicant accused the witness of perjury .","The applicant and her mother went directly to the local hospital , where they were directed to see a forensic medical examiner . The applicant was examined at TIME","The medical examiner found that the hymen had been freshly torn . He also noted grazing on the applicant 's neck , measuring QUANTITY by QUANTITY , and CARDINAL small oval - shaped bruises . As noted in the medical certificate , the applicant had reported CARDINAL rape , stating that it had occurred CARDINAL DATE at the reservoir .","The applicant submitted that during DATE she had refused to talk to her mother about the incident . She had given no details and had not mentioned the second rape at all . She explained that she lived in a conservative small - town environment where virginity was considered to be an asset for marriage . She felt ashamed of the fact that she had \u201c failed to protect her virginity \u201d and of \u201c what people would say about it \u201d .","On TIME after the events , on DATE , P. visited the applicant 's family . The applicant and her mother stated that that evening PERSON had begged for forgiveness and had claimed that he would marry the applicant when she came of age . The applicant 's mother had considered that accepting the offer would be reasonable in the circumstances . This had influenced the initial behaviour of the applicant , who had accepted her mother 's idea of minimising the damage .","On CARDINAL of the following evenings , the applicant went out with P. and some of his friends .","P. and V.A. , the latter claiming that he had been with P. during the visit to the applicant 's house on TIME CARDINAL DATE , stated that the applicant 's mother had told them that \u201c all pleasure must be paid for \u201d and had tried to extort money from them .","P. 's grandmother also made a statement to the police . She asserted that on an unspecified date the applicant 's mother had visited her , trying to extort money .","With regard to that visit and other relevant events , PERSON , a neighbour and friend of the applicant 's mother , stated that the applicant 's mother had been very upset about the events and had agreed to her daughter going out with P. as he had maintained that he loved the applicant . The applicant 's mother had nevertheless decided to talk to P. 's parents . On an unspecified date PERSON and another neighbour had approached the house of P. 's family , but his grandmother had told them to go away , stating that the applicant had slept not only with PERSON but also with A. At that moment PERSON had arrived . PERSON had asked him whether it was true that he had slept with the applicant . He had confirmed that it was true , adding that he had the money and power to do as he pleased . Until then , the applicant 's mother had not known about the second rape .","The applicant submitted that a visit by ORG 's father on CARDINAL DATE had caused her to break down . She had then confided to her mother about the second rape . On DATE the applicant 's father returned home , after being absent for DATE . The family discussed the matter and decided to file a complaint . The applicant 's mother did so on DATE .","On DATE the applicant made a written statement about the events of DATE and DATE . On DATE were arrested and made written statements . They claimed that the applicant had had sexual intercourse with them of her own free will . The CARDINAL men were released . Written statements were also made by V.A. and a person who lived next to the house where the second alleged rape had taken place . On DATE a police officer drew up a report and forwarded the file to the competent prosecutor .","On DATE the district prosecutor opened a criminal investigation into the alleged rape and referred the case to an investigator . No charges were brought .","No action was taken on the case DATE .","On DATE P. and A. filed complaints with the district prosecutor 's office , stating that the applicant and her mother had been harassing them by making false public accusations .","On the basis of these complaints , on CARDINAL DATE , the district prosecutor ordered a police inquiry . In DATE and DATE several persons were heard and made written statements .","DATE . On DATE a police officer drew up a report apparently accrediting the allegations of P. and A. and disbelieving the version of the facts as submitted by the applicant and her mother .","On DATE the file was transmitted to the district prosecutor 's office with jurisdiction to decide whether or not to institute criminal proceedings against the applicant and her mother . It appears that the matter was left hanging and no decision was taken .","DATE and DATE the investigator questioned the applicant , her mother and other witnesses . P. and A. were heard as witnesses .","The applicant gave a detailed account of the facts , repeating that PERSON had overcome her resistance by pressing her against the car seat and twisting her hands , and that thereafter she had been in a state of shock and unable to resist PERSON","In his evidence , PERSON claimed that the applicant had actively responded to his advances . He also asserted that the applicant had spoken with PERSON at the restaurant they had allegedly gone to after having sex .","Both A. and PERSON stated , inter alia , that shortly after having sex with P. at the reservoir , the applicant had started caressing PERSON in the car .","On DATE the investigator completed his work on the case . He drew up a report stating that there was no evidence that P. and A. had used threats or violence , and proposed that the prosecutor close the case .","On DATE the district prosecutor ordered an additional investigation . The order stated that the initial investigation had not been objective , thorough or complete .","On DATE the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions . The experts were asked , inter alia , whether it was likely that the applicant would have spoken calmly with PERSON , the singer at the restaurant , and then listened to music in the car , if she had just been raped and whether it was likely that DATE after the alleged rape the applicant would have gone out with the person who had raped her .","The experts considered that , owing to her naivety and inexperience , the applicant had apparently not considered the possibility that she might be sexually assaulted . There was no indication that she had been threatened or hurt , or that she had been in a state of shock during the events , as she had demonstrated a clear recollection of them . The experts considered that during the events she must have been suddenly overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible , which had \u201c reduced her ability to resist and defend herself \u201d . They further found that the applicant was psychologically sound and that she had understood the meaning of the events . In view of her age at the time , however , she \u201c could not assert a stable set of convictions \u201d .","The experts also found that , if there had indeed been a meeting between PERSON and the applicant after the events at the reservoir \u2013 and this was disputed DATE it was still possible that the applicant could have had a short exchange with PERSON after being raped . As to the applicant going out with P. DATE after the events , this could be easily explained by her family 's desire to lend a socially acceptable meaning to the incident .","On DATE the investigator concluded his work on the case and drew up a report , again proposing that the case should be closed . He considered that the experts ' opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats .","On DATE the district prosecutor ordered the closure of the criminal investigation . He found , inter alia , that the use of force or threats had not been established beyond reasonable doubt . In particular , no resistance on the applicant 's part or attempts to seek help from others had been established .","The applicant lodged consecutive appeals with the regional prosecutor 's office and ORG . The appeals were dismissed in decisions of CARDINAL May and DATE respectively .","The prosecutors relied , inter alia , on the statements of the alleged perpetrators and V.A. that the applicant had not shown any signs of distress after having sex with P. at the reservoir , and the evidence of the CARDINAL men and PERSON that the latter had met the applicant and had spoken with her that night . As regards the applicant 's objections that those statements should be rejected as being untrue , the decision of CARDINAL DATE stated that \u201c prosecutors ' decisions can not be based on suppositions , and witnesses ' statements can not be rejected only on the basis of doubts , without other evidence ... \u201d .","NORP The decision of CARDINAL DATE also stated :","\u201c It is true that , as can be seen from the report of the forensic psychiatric experts , the young age of the applicant and her lack of experience in life meant that she was unable to assert a stable set of convictions , namely to demonstrate firmly her unwillingness to engage in sexual contact . There can be no criminal act under LAW ( CARDINAL ) and CARDINAL of LAW , however , unless the applicant was coerced into having sexual intercourse by means of physical force or threats . This presupposes resistance , but there is no evidence of resistance in this particular case . P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant 's consent and if they used force or made threats precisely with the aim of having sexual intercourse against the applicant 's will . There is insufficient evidence to establish that the applicant demonstrated unwillingness to have sexual intercourse and that P. and A. used threats or force . \u201d","It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking .","The decision of DATE reiterated those findings , while noting that the statements of PERSON , the singer at the restaurant , were not decisive . It also stated :","\u201c What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force was used against the applicant and that sexual intercourse took place against her will and despite her resistance . There are no traces of physical force such as bruises , torn clothing , etc . ...","It is true that it is unusual for a girl who is under age and a virgin to have sexual intercourse twice within a short space of time with CARDINAL different people , but this fact alone is not sufficient to establish that a criminal act took place , in the absence of other evidence and in view of the impossibility of collecting further evidence . \u201d","In DATE or DATE the applicant and her mother requested the institution of criminal proceedings against PERSON and other witnesses , including V.A. , alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false .","On DATE the same prosecutor from the district prosecutor 's office who had ordered the closure of the rape investigation refused the request , stating that it was unfounded and even abusive , as all the facts had been clarified in previous proceedings .","An ensuing appeal by the applicant was dismissed on DATE by the regional prosecutor 's office .","In DATE the applicant submitted a written opinion by CARDINAL NORP experts , Dr Svetlozar Vasilev , a psychiatrist , and Mr PERSON , a psychologist , who had been asked by the applicant 's lawyer to comment on the case .","The experts stated , with reference to scientific publications in several countries , that CARDINAL patterns of response by rape victims to their attacker were known : violent physical resistance and \u201c frozen fright \u201d ( also known as \u201c traumatic psychological infantilism syndrome \u201d ) . The latter was explained by the fact that any experience - based model of behaviour was inadequate when the victim was faced with the inevitability of rape . As a result the victim , terrorised , often adopted a passive - response model of submission , characteristic of childhood , or sought a psychological dissociation from the event , as if it were not happening to her .","The experts stated that all the scientific publications they had studied indicated that the \u201c frozen - fright pattern \u201d prevailed . Further , they had conducted their own research for the purposes of their written opinion in the present case . They had analysed all the cases of young women aged DATE who had contacted CARDINAL specialised treatment programmes for victims of violence in GPE during the period from DATE , declaring that they had been raped . Cases that were too different from that of the applicant had been excluded . As a result , CARDINAL cases had been identified , in CARDINAL of which the victim had not resisted violently , but had reacted with passive submission .","By LAW , sexual intercourse with a person under DATE is a punishable offence ( statutory rape ) . Consent is not a valid defence in such cases .","Consent is likewise irrelevant where the victim is DATE , but did not \u201c understand the essence and meaning of the occurrence \u201d ( LAW ) . That provision has been applied in cases where the victim did not grasp the meaning of the events owing to a mental disorder ( see judgment no . CARDINAL of DATE , case no . CARDINAL\/CARDINAL , ORG - I ) .","Article CARDINAL \u00a7 CARDINAL of LAW defines rape as :","\u201c sexual intercourse with a woman","( CARDINAL ) incapable of defending herself , where she did not consent ;","( CARDINAL ) who was compelled by the use of force or threats ;","( CARDINAL ) who was brought to a state of helplessness by the perpetrator . \u201d","NORP Although lack of consent is mentioned explicitly only in the first sub - paragraph , ORG has held that it is an element inherent in the whole provision ( see judgment no . CARDINAL , cited above ) .","DATE . According to judicial practice , the CARDINAL sub - paragraphs of Article CARDINAL \u00a7 CARDINAL can only be applied alternatively , each of them referring to a separate factual situation . ORG has held that general references to CARDINAL or all of the sub - paragraphs are not acceptable ( see judgment no . CARDINAL of DATE , case no . DATE , ORG - I ; judgment no . CARDINAL of CARDINAL DATE , case no . CARDINAL , ORG - I ; and many others ) .","Therefore , an accused person may be found guilty of rape only if it has been established that he had sexual intercourse with a woman in circumstances covered by CARDINAL of the CARDINAL sub - paragraphs .","The first and third sub - paragraphs concern particular factual situations where the victim was in a state of helplessness at the time of sexual intercourse . The third sub - paragraph refers to cases where the perpetrator put the victim in a state of helplessness before raping her , whereas the first sub - paragraph refers to cases where he took advantage of the victim 's existing state of helplessness .","The courts have stated that a victim is in a state of helplessness ( \u201c incapable of defending herself \u201d or \u201c brought to a state of helplessness \u201d ) only in circumstances where she has no capacity to resist physically owing to disability , old age or illness ( see judgment no . CARDINAL of CARDINAL DATE , case no . DATE , and judgment no . CARDINAL , cited above ) or because of the use of alcohol , medicines or drugs ( see judgment no . CARDINAL of DATE , case no . CARDINAL , ORG ) .","The second sub - paragraph is the provision applicable in all other cases of alleged rape . Thus , where no special circumstances such as the state of helplessness of the victim are reported , an investigation into an alleged rape will concentrate on establishing whether or not the victim was coerced into having sexual intercourse by the use of force or threats .","It is an established view in the case - law and legal theory that rape under the second sub - paragraph of LAW is a \u201c twostep \u201d offence \u2013 that is to say , the perpetrator first starts employing force or threats and then penetrates the victim .","The parties in the present case offered their views on the meaning of the words \u201c use of force and threats \u201d and their interpretation in practice ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) .","ORG has stated that lack of consent is to be deduced from the fact that a situation covered by one of the CARDINAL sub - paragraphs of LAW has been established , either from the victim 's state of helplessness or from the fact that physical or psychological force has been used ( see judgment no . CARDINAL , cited above ) .","In CARDINAL case , ORG stated that \u201c force \u201d was not only to be understood as direct violence , but could also consist of placing the victim in a situation such that she could see no other solution than to submit against her will ( see judgment no . CARDINAL of DATE , case no . CARDINAL ) . In that particular case , the perpetrator , after demonstrating his desire for close relations with the victim by his behaviour over a period of DATE ( following her and trying to hold her and kiss her ) , entered her room , locked the door and asked her to undress . She refused , whereupon he tried to spread her legs apart . Realising that she had no other choice , the victim opened the window and jumped , sustaining serious injury . The perpetrator was convicted of attempted rape resulting in serious injury .","Legal commentators have not commented in detail on situations where coercion through force or threats may be considered to have been established , apparently taking the view that this was a matter for judicial interpretation ( Al . PERSON , PERSON \u043f\u0440\u0430\u0432\u043e , PERSON \u0447\u0430\u0441\u0442 , DATE ; GPE , \u041d\u0430\u043a\u0430\u0437\u0430\u0442\u0435\u043b\u043d\u043e \u043f\u0440\u0430\u0432\u043e , PERSON \u0447\u0430\u0441\u0442 , CARDINAL ) . CARDINAL commentator has stated that the essential characteristic of rape is the victim 's lack of consent and that the CARDINAL sub - paragraphs of LAW embody different situations of lack of consent . He further notes that in DATE the utmost resistance by the victim was required and that that view is now outdated . Without reference to caselaw , he considers that what is now required is nothing more than the resistance necessary to eliminate any doubt as to the victim 's lack of consent ( PERSON , GPE \u0438\u0437\u043d\u0430\u0441\u0438\u043b\u0432\u0430\u043d\u0435\u0442\u043e , DATE ) .","Under LAW of LAW , rape committed by a man against a woman is punishable by DATE imprisonment . At the material time , LAW provided for DATE imprisonment in cases of forced sexual intercourse with a person of the same sex . In DATE the punishment prescribed under the latter provision was brought into line with that applicable in cases of rape under LAW , and is now DATE imprisonment .","At the material time , the age of consent in respect of sexual intercourse with a person of the same sex was DATE ( LAW ) . In DATE it was lowered to DATE .","In the legal systems of a number of GPE , rape and sexual assault are \u201c gender - neutral \u201d offences , whereas in other countries rape may only be committed by a man against a woman .","The minimum age of consent for sexual activity in most GPE is DATE , DATE . In some countries , there is a different age of consent for sexual acts without penetration and for sexual acts with penetration , or different penalties depending on the age of the victim . The approaches vary significantly from CARDINAL country to another .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW ( referred to by ORG ) , as amended in DATE , read :","\u201c Any act of sexual penetration , of whatever nature and by whatever means , committed on a person who does not consent to it shall constitute the crime of rape .","In particular , there is no consent where the act is forced by means of violence , coercion or ruse or was made possible by the victim 's disability or physical or mental deficiency . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW ( Law no . CARDINAL\/CARDINAL , as amended ) provides :","\u201c A person who coerces another into an act of sexual penetration or a similar sexual act through violence or the threat of imminent violence or by taking advantage of the person 's helplessness shall be liable to imprisonment for a term of DATE . \u201d","Sections CARDINAL(CARDINAL ) and CARDINAL of LAW ( referred to by the intervener ) provide :","\u201c Any person who coerces [ another into having ] sexual intercourse by violence or under threat of violence shall be guilty of rape and liable to imprisonment for a term not exceeding DATE . The placing of a person in such a position that the person is unable to resist shall be equivalent to violence ... \u201d","\u201c Any person who by means of unlawful coercion ( according to LAW ) other than violence or the threat of violence procures sexual intercourse for himself , shall be liable to imprisonment for a term not exceeding DATE . \u201d","LAW , sections TIME CARDINAL , of GPE ( as amended in DATE ) provides :","\u201c Section CARDINAL : Rape","( CARDINAL ) A person who coerces another into having sexual intercourse by the use or threat of violence shall be sentenced for rape to imprisonment for DATE and at DATE .","( CARDINAL ) A person shall also be guilty of rape if he \/ she takes advantage of the incapacity of another to defend himself \/ herself and has sexual intercourse with him \/ her , after rendering him \/ her unconscious or causing him \/ her to be in a state of incapacity owing to fear or another similar reason ...","Section CARDINAL : Coercion into having sexual intercourse","( CARDINAL ) If the rape , in view of the low level of violence or threat and the other particulars of the offence , is deemed to have been committed under mitigating circumstances , the offender shall be sentenced for coercion into having sexual intercourse to imprisonment for DATE .","( CARDINAL ) A person who coerces another into having sexual intercourse by a threat other than that referred to in section CARDINAL(CARDINAL ) shall be guilty of coercion into having sexual intercourse . \u201d","Articles CARDINAL , CARDINAL and CARDINAL - CARDINAL of the NORP LAW provide :","\u201c Sexual aggression is any sexual assault committed by violence , coercion , threats or surprise . \u201d","\u201c Any act of sexual penetration , whatever its nature , committed against another person by violence , coercion , threats or surprise , shall be considered rape . Rape shall be punishable by DATE imprisonment . \u201d","\u201c A sexual offence committed without violence , coercion , threats or surprise by an adult on the person of a minor DATE shall be punished by DATE imprisonment and a fine of CARDINAL . \u201d","The following information about NORP case - law on rape may be gathered from the authoritative publication Juris - Classeur ( DATE ) :","( i ) The words \u201c violence , coercion , threats or surprise \u201d are given a broad meaning in practice . For example , in CARDINAL case it was stated that the fact that the victim was begging the perpetrator to stop , without further resistance , where she had previously agreed to enter his car and to be kissed by him , was sufficient to establish that there was rape ( judgment of ORG ( \u201c PERSON . crim . \u201d ) , DATE , Bulletin Criminel ( \u201c Bull . crim . \u201d ) no . CARDINAL ; ORG , DATE , p. CARDINAL , observations of ORG ; see also , for an opposing view , Crim . , CARDINAL DATE , ORG . ORG , CARDINAL ) . The victim 's refusal may be inferred from the circumstances , such as paralysing shock , as a result of which the victim could not protest or escape ( PERSON . crim . , CARDINAL DATE , ORG . crim . no . CARDINAL ) .","( ii ) There is \u201c surprise \u201d where the victim can not freely consent because , for example , she is physically or mentally disabled ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) , in a particular psychological state , involving depression , fragility , or simply distress ( PERSON . crim . , DATE , ORG no . DATE ; ORG , DATE , ORG no . DATE ) , or where the perpetrator used trickery to deceive the victim as to the real situation ( PERSON . crim . , DATE , ORG no . DATE ) .","( iii ) The courts have considered that there is always \u201c surprise \u201d , and therefore rape , where the victim is of such a low age as not to understand the concept of sexuality and the nature of the acts being imposed ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ; ORG , DATE , ORG no . DATE ; ORG , DATE , ORG no . DATE ) . In some other cases , however , it has been stated that in principle the age of the victim can not as such , without additional elements , establish the existence of \u201c surprise \u201d ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) .","The relevant part of LAW of LAW reads :","\u201c CARDINAL . Anyone who coerces another person","( CARDINAL ) by force ,","( CARDINAL ) NORP by the threat of immediate danger to life or limb , or","( CARDINAL ) NORP by exploiting a situation in which the victim is defenceless and at the mercy of the actions of the perpetrator","into submitting to sexual acts performed by the perpetrator or by a third person or into performing such acts on the perpetrator or on the third person , shall be punished by imprisonment for not DATE . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW ( Law no . DATE ) provides :","\u201c A person who by violent action or a direct threat to life or limb forces a person to have sexual intercourse , or uses a person 's incapacity to defend himself \/ herself or to express his \/ her will to have sexual intercourse shall be guilty of a serious offence punishable by imprisonment for DATE . \u201d","In GPE , section CARDINAL(CARDINAL ) of LAW DATE and section CARDINAL of LAW ) LAW DATE ( referred to by the intervener ) provide :","\u201c A man commits rape if ( a ) he has sexual intercourse with a woman who at the time of intercourse does not consent and ( b ) at the time he knows she does not consent or is reckless as to whether or not she is consenting . \u201d","\u201c It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of the person , any failure or omission by that person to offer resistance to the act does not of itself constitute consent to that act . \u201d","Article CARDINAL \u00a7 CARDINAL of the NORP Criminal Code reads :","\u201c Anyone who compels a person of the same or the opposite sex to submit to sexual intercourse by force or the threat of imminent attack on life and limb shall be sentenced to imprisonment from DATE . \u201d","In GPE , section CARDINAL(CARDINAL ) of the Sexual Offences LAW DATE ( referred to by the intervener ) provides :","\u201c [ A ] man commits rape if ( a ) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it ; and ( b ) at that time he knows that she does not consent to the intercourse or is reckless as to whether she consents to it . \u201d","ORG recommends that member States adopt and implement , in the manner most appropriate to each country 's national circumstances , a series of measures to combat violence against women . Paragraph CARDINAL of the appendix to the recommendation states that , in the field of criminal law , member GPE should , inter alia :","\u201c \u2013 penalise any sexual act committed against non - consenting persons , even if they do not show signs of resistance ;","...","\u2013 penalise any abuse of the position of a perpetrator , and in particular of an adult vis\u00e0 - vis a child . \u201d","In Prosecutor v. PERSON ( case no . IT-CARDINAL - CARDINAL\/CARDINAL-T , judgment of DATE ) , in the context of the question whether or not forced oral sexual penetration may be characterised as rape under international law , ORG made the following relevant remarks about rape under international criminal law :","\u201c ORG notes the unchallenged submission ... that rape is a forcible act : this means that the act is ' accomplished by force or threats of force against the victim or CARDINAL person , such threats being express or implied and must place the victim in reasonable fear that he , she or a third person will be subjected to violence , detention , duress or psychological oppression ' . ...","... all jurisdictions surveyed by ORG require an element of force , coercion , threat , or acting without the consent of the victim : force is given a broad interpretation and includes rendering the victim helpless . \u201d","ORG defined rape as :","\u201c sexual penetration ... by coercion or force or threat of force against the victim or a third person . \u201d","Noting that the terms \u201c coercion \u201d , \u201c force \u201d , or \u201c threat of force \u201d from the PERSON definition were not intended to be interpreted narrowly , ORG in another case ( Prosecutor v. PERSON , PERSON and GPE , case no . IT-CARDINAL - CARDINAL , judgment of DATE ) observed :","\u201c In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person , the PERSON definition does not refer to other factors which would render an act of sexual penetration non - consensual or non - voluntary on the part of the victim , which ... as discussed below , is in the opinion of ORG the accurate scope of this aspect of the definition in international law .","... the basic underlying principle common to [ the national legal systems surveyed is ] that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim ... [ F]orce , threat of force or coercion ... are certainly the relevant considerations in many legal systems but the full range of [ the relevant ] provisions ... suggest that the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy . \u201d","In PERSON , PERSON and GPE , a NORP girl in an occupied area was taken by armed soldiers to a building which served as military headquarters . After being raped by CARDINAL soldiers there , she was brought to a room where she herself initiated sexual contact with the accused PERSON , the commanding officer . ORG noted that the victim had been told by soldiers that she should satisfy their commander sexually or risk her life . The victim therefore \u201c did not freely consent to any sexual intercourse with PERSON [ as she ] was in captivity and in fear for her life \u201d . ORG also rejected PERSON 's defence that he was not aware of the fact that the victim had only initiated sexual intercourse with him because she feared for her life . The ORG found that , even if PERSON had not heard the threats made by other soldiers , he could not have been \u201c confused \u201d by the behaviour of the victim , given the general context of the existing war - time situation and the specifically delicate situation of the NORP girls in the region .","In the context of the above facts , ORG made the following observations on the elements of rape under international law :","\u201c The basic principle which is truly common to [ the reviewed ] legal systems is that serious violations of sexual autonomy are to be penalised . Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant .","In practice , the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions \u2013 such as force , threats of force , or taking advantage of a person who is unable to resist . A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force , the unconsciousness or inability to resist of the victim , or misrepresentation by the perpetrator [ are present ] .","... coercion , force , or threat of force [ are ] not to be interpreted narrowly ... coercion in particular would encompass most conduct which negates consent ...","In light of the above considerations , ORG understands that the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [ it ] occurs without the consent of the victim . Consent for this purpose must be consent given voluntarily , as a result of the victim 's free will , assessed in the context of the surrounding circumstances . The mens rea is the intention to effect this sexual penetration , and the knowledge that it occurs without the consent of the victim . \u201d","In the same case , on an appeal by the perpetrators based on the argument , inter alia , that there was no rape without force or threat of force and the victim 's \u201c continuous \u201d or \u201c genuine \u201d resistance , ORG , in its judgment of DATE , stated :","\u201c The Appellants ' bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts .","Secondly , with regard to the role of force in the definition of rape , ORG notes that ORG appeared to depart from the ORG 's prior definitions of rape . However , in explaining its focus on the absence of consent as the conditio sine qua non of rape , ORG did not disavow the ORG 's earlier jurisprudence , but instead sought to explain the relationship between force and consent . ORG or threat of force provides clear evidence of non - consent , but force is not an element per se of rape . In particular , ORG wished to explain that there are \u201c factors [ other than force ] which would render an act of sexual penetration non - consensual or non - voluntary on the part of the victim \u201d . A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force ...","For the most part , the Appellants in this case were convicted of raping women held in de facto military headquarters , detention centres and apartments maintained as soldiers ' residences . As the most egregious aspect of the conditions , the victims were considered the legitimate sexual prey of their captors . Typically , the women were raped by CARDINAL perpetrator and with a regularity that is nearly inconceivable . ( Those who initially sought help or resisted were treated to an extra level of brutality ) . Such detentions amount to circumstances that were so coercive as to negate any possibility of consent . \u201d","In its General Recommendation DATE on violence against women , the ORG made the following recommendation in paragraph CARDINAL :","\u201c ( a ) LOC parties should take appropriate and effective measures to overcome all forms of gender - based violence , whether by public or private act ;","( b ) LOC parties should ensure that laws against ... abuse , rape , sexual assault and other gender - based violence give adequate protection to all women , and respect their integrity and dignity . ... \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75934","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2006,"docname":"CASE OF ZARB ADAMI v. MALTA","importance":1,"conclusion":"Violation of Art. 14+4-3-d;Not necessary to examine Art. 14+6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"Giovanni Bonello;Javier Borrego Borrego;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza","text":["The applicant is a NORP national and lives in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is a pharmacist in GPE . From DATE he was placed on the lists of jurors and remained on them until DATE .","DATE , the applicant was called to serve as a juror in CARDINAL different sets of criminal proceedings . On these occasions , he was called to serve both as a juror and as a foreman of the jury .","In DATE the applicant was again called to appear before ORG to serve as a juror . This time he failed to attend on the requested date and on DATE he was fined MONEY ( ( MTL ) \u2013 MONEY ( ORG ) ) .","NORP The constitutional proceedings","As the applicant failed to pay the fine , on DATE the Registrar of the Courts of GPE submitted an application to ORG . It asked that court to summon the applicant before it and\/or to convert the fine imposed into a term of imprisonment .","At the sitting of DATE before ORG , the applicant raised the plea that the fine imposed on him was unconstitutional and constituted a breach of his fundamental rights . He alleged , in particular , that the sanction was discriminatory in terms of LAW and LAW taken in conjunction with LAW ( d ) , because it subjected him to burdens and duties to which other persons in the same position were not subjected . Moreover , the law and\/or the domestic practice exempted persons of the female sex from jury service whereas , de facto , men were not offered this exemption .","Considering that the applicant \u2019s plea was not merely frivolous and\/or vexatious , on DATE ORG referred it to FAC .","NORP Before ORG , the applicant alleged that the NORP system penalised men and favoured women , as statistical information showed that during DATE PERCENT of jurors had been women whereas PERCENT had been men . Moreover , the burden of jury service was not equitably distributed but was placed on a very small proportion of the population : in DATE the lists of jurors represented PERCENT of the list of voters . In practice , those who had on CARDINAL occasion been placed on the lists of jurors would remain on them until they were disqualified , while others who also satisfied all the requirements were de facto exempted from such civic obligation .","In a judgment of CARDINAL DATE , ORG rejected the applicant \u2019s claims . It held that in stating that every NORP citizen who had attained the age of CARDINAL qualified to serve as a juror the law did not make any distinction between citizens . More specifically , there was no distinction between men and women . As to the practice criticised by the applicant , the latter had not substantiated his allegation that there were other persons eligible to serve as jurors who managed to avoid performing their duties . Moreover , the applicant had failed to seek exemption from jury service in accordance with domestic law .","ORG also observed that the applicant had not proved that he was being treated differently to such an extent that the burdens and obligations imposed on him were greater than those imposed on another person . In particular , it had not been established that people who had been on the lists of jurors as long as the applicant had been removed without a valid reason , or that persons who were in a situation comparable to that of the applicant were left off the lists . The applicant had also failed to submit any evidence showing that the discrepancies between women and men called to serve as jurors were specifically attributable to an intention to discriminate between the sexes or were aimed at giving an unjust advantage to women in relation to men .","The applicant appealed against the judgment of CARDINAL DATE to ORG . He observed , in particular , that the existence of discrimination was clearly shown by the statistics he had produced . Given this factual background , it was unnecessary to prove an intention to discriminate on the part of the authorities .","In his submissions , the applicant pointed out that jury service was a burden as it required the person concerned to abandon his or her work in order to attend court hearings regularly ; moreover , it imposed a moral burden to judge the innocence or guilt of a person . According to LAW the Convention , social burdens should be shared by all in an equitable manner . However , statistics showed that lists of foremen were composed of PERCENT of women and PERCENT of men , and that the lists of jurors represented PERCENT of the list of voters .","In a judgment of DATE , ORG dismissed the applicant \u2019s appeal and confirmed the judgment of ORG .","The Constitutional Court reiterated that neither the law nor the administrative rules in relation to the compilation of the lists of jurors were in any way discriminatory . In fact , the statistics showed that the number of women on the lists of jurors was CARDINAL in DATE ( almost double the number of DATE ) , and that this number increased to CARDINAL in DATE . Therefore , an irreversible administrative process had been set in motion in order to bring the number of women on the lists into line with that of men .","The Constitutional Court acknowledged , however , that the number of women actually called to serve as jurors was very low : CARDINAL per year in DATE . This was clearly the result of the jury selection procedure , in which the reasons militating for and against the choice of a certain person as juror were evaluated . The results were dependant on many factors , such as the element of luck , challenges brought by the defence and exemptions granted by the courts . It was true that women were exempted from jury service for social , family and cultural reasons ; however , this was perfectly legitimate and lawful when it was as a consequence of a claim by the defence , the prosecutors or the presiding judge .","ORG also agreed that it appeared that the manner in which the lists of jurors were compiled favoured a situation in which when a person was placed on the lists he remained on them until the age restriction was reached . Therefore the applicant \u2019s grievance that this system seemed to punish those persons who were on the lists could be justified . Thus , ORG suggested that the system be amended and that the lists be periodically changed in order to exclude those persons who had already been called for jury service .","As concerned the applicability of LAW , the Constitutional Court noted that jury service should be considered \u201c a normal civic obligation \u201d within the meaning of LAW , and therefore LAW came into play . ORG considered , however , that the applicant had not been subjected to burdensome treatment simply because he had had to serve as a juror on CARDINAL occasions over DATE . In any case , this circumstance did not entitle him to take the law into his own hands and decide to ignore the court summons . Instead , he should have made use of the ordinary remedies available to him , such as filing a request for exemption from jury service with the competent court . Had this request been refused , he could have appealed .","ORG also rejected the applicant \u2019s submission that the fine imposed on him was discriminatory . It observed that anyone who had been fined by the competent court was obliged by law to pay the fine and that anyone who disobeyed an order of a court was liable to be sanctioned .","On an unspecified date in DATE , the applicant petitioned the Registrar of ORG . He observed that , according to ORG of DATE , his name had been registered on ORG and on the List of Special Jurors . However , as he was a lecturer at ORG , he sought exemption from jury service in accordance with LAW ( hereinafter \u201c the ORG \u201d ) .","By a decision of DATE , the Registrar of ORG rejected the applicant \u2019s petition .","Having been summoned once again to serve as a juror in another trial , in DATE the applicant requested to be exempted from jury service under LAW of the ORG . This application was rejected by the competent domestic court .","On DATE the applicant requested once again to be exempted from serving as a juror . He relied on Article CARDINAL ) of the ORG , providing an exemption for full - time lecturers at ORG . On DATE his request was accepted .","According to Article CARDINAL ) of the ORG ,","\u201c Every person of DATE or upwards , residing in GPE and being a citizen of GPE , shall be qualified to serve as a juror provided such person has an adequate knowledge of the NORP language , is of good character and is competent to serve as a juror . \u201d","The compilation of the lists of jurors is regulated by LAW . The lists are drawn up by the Commissioner of Police together with QUANTITY magistrates and GPE . They are published in ORG in DATE . Within DATE from the publication any person who , not possessing the qualifications required by law to serve as a juror , desires to be struck off the lists may file an application before ORG . The court shall proceed summarily on the application and the registrar shall note on the lists any correction which the court may order . Subsequently , the names of the jurors are written down on separate ballots of paper and DATE ballots are drawn .","Article CARDINAL of the ORG provides :","\u201c ( CARDINAL ) The following persons are exempted from serving as jurors :","Members of ORG , judges , clergymen , members of ORG , persons holding the office of Head of a ORG and their deputies , the magistrates , ORG , officers of ORG , professors of ORG , teachers of the Government secondary , primary and technical schools , ORG , health inspectors , ORG and ORG .","( CARDINAL ) Moreover the court may , on an application to that effect , exempt from serving as a juror any apothecary of a village and any physician , surgeon or obstetrician actually practising his profession , and , in general , any person who has completed DATE of his age , unless , in some particular case , the court deems otherwise for the ends of justice .","( CARDINAL ) A person who has the care of a family or of a person who suffers from any physical or mental infirmity shall also be exempt from serving as a juror . \u201d","Article CARDINAL of the ORG provides that any person who is not qualified or liable to serve as a juror , or who may have special reasons for asking to be exempted from serving as a juror , may bring the matter before the court , by means of an application to be filed within DATE after the service of a writ of summons . The court may , \u201c if it deems the reasons alleged to be good , ... order the registrar to cancel the name of such person \u201d .","According to LAW , if a summoned person ( that is , a person called to serve as a juror ) fails to appear before the court at the time stated in the writ , he will be sentenced by the court to a fine and may be compelled to serve as a juror by means of a warrant of escort or arrest . The court may , on an application to that effect , remit the fine if it is satisfied that there was good cause for the non - appearance ."],"violated_articles":["14","4"],"violated_paragraphs":["4-3"],"violated_bulletpoints":["4-3-d"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61482","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2003,"docname":"CASE OF MATWIEJCZUK v. POLAND","importance":3,"conclusion":"Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8 with regard to monitoring of correspondence;Not necessary to examine Art. 34;No violation of Art. 8 with regard to delay of correspondence;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant was born in DATE and is currently detained in the Radom prison .","In DATE the applicant was released from prison . On DATE the police arrested him . The police suspected that on DATE the applicant had committed an armed robbery and rape . At the same time , the police enforced a warrant for the arrest of the applicant issued on DATE by ORG ( S\u0105d Rejonowy ) in the criminal proceedings against the applicant pending before that court .","On DATE ORG remanded the applicant in custody on charges of armed robbery and sexual assault . The court took into account the fact that the applicant was of no fixed abode and that his accomplices had not been arrested .","On DATE ORG ( S\u0105d Wojew\u00f3dzki ) dismissed the applicant 's appeal against ORG decision to remand him in custody . ORG considered that the applicant 's detention was justified by the existence of serious evidence of his guilt , the gravity of charges against him , the risk of collusion , the fact that he was of no fixed abode and was unemployed . In addition , the court observed that the police failed to apprehend the applicant 's accomplices and that there was a risk that he would go into hiding . Finally , the court was of the view that the applicant 's case did not disclose any of the grounds for release provided by LAW of LAW .","On DATE ORG extended the applicant 's detention until DATE .","The applicant made an application for release but it was dismissed on DATE by ORG . It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt .","DATE and DATE the prosecution service decided that it would seek evidence from CARDINAL expert witnesses and requested the applicant 's medical file from a psychiatric hospital in which he had been treated .","On DATE ORG appointed legal aid counsel to defend the applicant .","On DATE the prosecution service received CARDINAL expert opinions . On DATE ORG interviewed the victim of rape .","On DATE ORG ( S\u0105d Apelacyjny ) allowed the request submitted by the prosecutor and extended the applicant 's detention on remand until DATE . The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW . Moreover , it noted that CARDINAL of the co - accused was still in hiding and that immediately after the commission of the alleged crime \u201c there had been an attempt to contact the victim [ of the assault ] \u201d . The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out , the applicant and another co - accused were still under psychiatric observation , whereas the police was trying to apprehend the third accused . The applicant appealed against that decision to ORG ( S\u0105d Najwy\u017cszy ) .","DATE the prosecution service received CARDINAL expert opinions and decided to request DNA tests .","On DATE ORG dismissed the applicant 's appeal against ORG decision of DATE . It referred to the charges against the applicant and observed that there existed serious evidence of his guilt .","On DATE the GPE - Ochota Deputy ORG ( Zast\u0119pca Prokuratora Rejonowego ) replied to the applicant 's letter of DATE in which he complained about the censorship of his correspondence with ORG . The prosecutor advised the applicant about domestic legislation , which allowed the authorities to censor his correspondence .","On DATE ORG allowed the request submitted by the prosecutor and extended the applicant 's detention on remand until DATE . The court relied on the existence of serious evidence of the applicant 's guilt and the nature of charges against the applicant . It also considered that the applicant 's case did not disclose any of the grounds for release provided by LAW of LAW . Finally , the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that CARDINAL of co - accused was still in hiding . The applicant appealed against that decision .","On DATE the prosecution service received the results of DNA tests . On DATE ORG interviewed the applicant and decided to modify charges against him .","On DATE the prosecuting authorities filed with ORG a bill of indictment against the applicant .","On DATE ORG extended the applicant 's pretrial detention until DATE .","On DATE the trial court dismissed the applicant 's challenge to the prosecutor who worked on his case . During DATE the applicant was consulting the case - file .","On DATE ORG dismissed the applicant 's appeal against ORG decision of DATE . ORG relied on the gravity of charges against the applicant , the existence of serious evidence of his guilt and the grounds for detention listed in LAW . It also pointed out that ORG decision of DATE extending the applicant 's detention had been taken before ORG had the opportunity to decide his appeal against ORG decision of CARDINAL DATE and therefore constituted \u201c an inappropriate practice \u201d .","On DATE the applicant 's counsel appealed to ORG against ORG decision of DATE . On DATE the appellate court rejected the appeal . It pointed out that at the time of his arrest the applicant had been of no fixed abode and had been the subject of the arrest warrant .","In the meantime , on DATE the applicant lodged with ORG an appeal against ORG decision of DATE . On DATE ORG dismissed the applicant 's appeal . The court relied on a medical opinion confirming that the applicant 's medical problems could be treated in prison .","In the meantime , on DATE the applicant made an application for release . On DATE ORG dismissed the application . It relied on a medical opinion . The applicant 's appeal against that decision was rejected because it was not provided by law .","On DATE ORG was informed that the applicant had tried to smuggle a message to his accomplices . However , it was seized by the prison service and included in the court 's case - file .","DATE and DATE the applicant on CARDINAL occasions attended hearings before ORG in the criminal proceedings against him pending before that court .","On DATE ORG decided to stop the applicant 's letter in which he made threats against one of the prisoners . The letter was included in the court 's case - file .","On DATE ORG requested ORG to extend the applicant 's pre - trial detention under LAW CARDINAL of the Code of Criminal Procedure which empowered ORG to prolong detention beyond DATE . The request was based , inter alia , on Articles CARDINAL and CARDINAL \u00a7 CARDINAL of LAW and referred to the gravity of charges against the applicant , the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant 's case . The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before DATE .","On DATE the first hearing was held before ORG . The applicant and his co - accused asked that the hearing be adjourned as they had not been able to prepare their defence . The court allowed the request and adjourned the hearing until DATE . The court took into account heavy workload of judges , DATE and the fact that an anonymous witness could not be heard before that date .","On DATE ORG allowed ORG request of CARDINAL DATE and extended the applicant 's pre - trial detention until DATE . It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre - trial detention . Furthermore , ORG agreed with ORG that the applicant 's case disclosed the existence of grounds for detention provided in Articles CARDINAL and CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure . ORG concluded that the inability to take evidence from an anonymous witness before DATE justified the extension of the applicant 's detention under Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure .","On DATE ORG held the second hearing in the applicant 's case . It took evidence from the victim of sexual assault . The court also made arrangements for taking evidence from an anonymous witness .","On DATE evidence was taken from an anonymous witness .","On DATE ORG dismissed the applicant 's challenge to the judges trying his case . ORG considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault .","NORP On DATE the hearing was adjourned because the prosecution service and witnesses had not been informed about it .","The applicant made a further application for release at the hearing held on DATE but it was dismissed by ORG on DATE . The court considered that the applicant 's detention was justified by the existence of serious evidence of his guilt , the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest . Moreover , the court observed that it had not finished taking evidence from certain witnesses . The applicant 's appeal against that decision was rejected because it was not provided by law .","On DATE ORG requested ORG to further extend the applicant 's pre - trial detention . On DATE ORG allowed that request and prolonged the detention until DATE . ORG referred to its decision of CARDINAL DATE and observed that the trial court still had to take evidence form certain witnesses . In addition , the trial court did not know the address of CARDINAL of those witnesses , whereas another witness had to be transported to the court from FAC .","On DATE a hearing took place before ORG .","On DATE evidence was taken from an anonymous witness .","The applicant made a fresh application for release but it was dismissed on DATE by ORG . It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage .","On DATE ORG dismissed the applicant 's challenge to the judges trying his case . The applicant 's appeal against that decision was rejected because it was not provided by law .","On DATE the police informed ORG that CARDINAL of the witnesses for the defence was dead .","On DATE a hearing was held before ORG . It was adjourned until DATE because CARDINAL of the judges was ill .","DATE . On DATE ORG requested ORG to further extend the applicant 's pre - trial detention . On DATE ORG allowed that request and prolonged the detention until DATE . It referred to the reasoning of its decision of CARDINAL DATE . ORG also noted the difficulties the trial court experienced in taking evidence from one of the witnesses . Moreover , the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention .","The hearing held on DATE was adjourned because the applicant requested that evidence be taken from a new witness .","The next hearing was held on DATE .","During the hearing held on DATE the applicant applied for release from detention but the court dismissed it . The applicant 's appeal against that decision was rejected because it was not provided by law .","On DATE ORG prolonged the applicant 's detention until DATE .","During the hearing held on DATE ORG dismissed the applicant 's request that the case be remitted to the prosecution service for further investigation .","The last hearing before the trial court was held on DATE .","On DATE ORG convicted the applicant of armed robbery and sexual assault and sentenced him to DATE imprisonment . The applicant appealed against that judgment to ORG .","On DATE ORG held a hearing . The court dismissed the appeal except for the conviction for armed robbery , which it qualified as robbery without the use of arms .","The ORG 's case - file contains the following documents pointing to the monitoring of the applicant 's correspondence :","( i ) the applicant 's letters of CARDINAL , DATE and DATE and DATE addressed to ORG are marked with a handwritten note : \u201c Censored \u201d ( ORG ) and an illegible signature and also bear a stamp : \u201c Assistant GPE - FAC PERSON \u201d ( Asesor Prokuratury Rejonowej PERSON ) ;","( ii ) the applicant 's letters of CARDINAL , DATE and DATE addressed to ORG are marked with a handwritten note : \u201c Censored \u201d and an illegible signature ;","( iii ) the applicant 's letters of DATE , CARDINAL May and DATE as well as an undated letter received on DATE addressed to ORG are marked with an illegible signature ;","( iv ) an envelope mailed by the applicant on DATE to ORG is marked with a handwritten note : \u201c Censored \u201d and an illegible signature ;","( v ) a flap of an envelope with the logo of ORG on the inside a stamp : \u201c Assistant GPE - FAC PERSON GPE \u201d and an illegible signature ;","( vi ) an envelope mailed by ORG DATE to the applicant bears a stamp : \u201c Censored on , signature \u201d ( Ocenzurowano dn . podpis ) , a hand - written date : CARDINAL DATE and an illegible signature .","The Code of Criminal Procedure DATE , which remained in force until DATE , listed as preventive measures , inter alia , detention on remand , bail and police supervision . Article CARDINAL of the Code , which set out general grounds justifying the imposition of preventive measures , provided as follows :","\u201c Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . \u201d","Furthermore , LAW allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures . Detention on remand was regarded as the most severe preventive measure . LAW provided as follows :","\u201c A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen , which justify quashing a given measure or replacing it with one that is either more or less severe . \u201d","Article CARDINAL of the Code provided :","\u201c 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 these measures , are considered adequate . \u201d","Article CARDINAL of the Code , before it was amended on DATE , provided insofar as relevant :","\u201c Detention on remand may be imposed if :","NORP 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 domicile , or","NORP there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means , or","the accused was charged with a commission of a criminal offence or acted as a habitual offender , as provided for by LAW , or","the accused was charged with the commission of an act which constituted significant danger to society . \u201d","Article CARDINAL provided :","\u201c If there are no special reasons to the contrary , detention on remand should be quashed , in particular , when :","it may seriously jeopardise the life or health of the accused ; or","it would entail excessively burdensome effects for the accused or his family . \u201d","Until DATE , when LAW was amended , NORP law did not set out any statutory time - limits concerning detention on remand in court proceedings but only in respect of the investigative stage .","Article CARDINAL of LAW , as applicable after DATE , provided insofar as relevant :","\u201c 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 ordinary offences . In cases concerning serious offences this period may not exceed DATE .","NORP In particularly justified cases ORG may , upon the request of the court competent to deal with the case ( ... ) prolong detention on remand for a further fixed period exceeding the periods referred to in 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 . \u201d","Subsequently , paragraph CARDINAL was extended to include also \u201c other significant circumstances , which could not be overcome by the organs conducting the proceedings \u201d .","On DATE the Code of Criminal Procedure DATE replaced the DATE Code .","Article CARDINAL of the new Code , insofar as relevant , provides :","\u201c \u00a7 CARDINAL . During investigation the court which decides about detention on remand shall impose it for a period not longer than DATE .","\u00a7 CARDINAL . If the special circumstances of a case made it impossible to conclude the investigation within the time - limit provided in LAW , detention on remand may be prolonged , at the request of the prosecutor and when it is necessary , by :","the trial court DATE for DATE ,","the appeal court DATE for a further fixed period necessary to conclude the investigation but not longer than DATE .","\u00a7 CARDINAL . The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed DATE .","\u00a7 CARDINAL . Detention on remand may be prolonged for a fixed period exceeding periods provided in LAW and CARDINAL only by ORG at the request of the court dealing with a case ( ... ) \u2013 if it is necessary because of the suspension of criminal proceedings , the prolonged psychiatric observation of an accused , the prolonged preparation of an expert opinion , the collection of evidence in a particularly complicated case or abroad , a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome \u201d .","Article CARDINAL \u00a7 CARDINAL of LAW Sentences DATE provided , in so far as relevant , as follows :","\u201c ( ... ) [ the detainee 's ] correspondence shall be censored by [ the organ at whose disposal he remains ] , unless the organ decides otherwise . \u201d","Rule CARDINAL of the Rules on Detention on DATE , as amended on DATE , provided , in so far as relevant , as follows :","\u201c ( CARDINAL ) A detainee has a right to correspond .","( CARDINAL ) Detainee 's correspondence shall be censored by the organ at whose disposal he remains ( ... ) .","( CARDINAL ) Correspondence with the ORG and international institutions for the protection of human rights , which act on the basis of international agreements ratified by GPE , is mailed through the intermediary of [ that ] organ ( ... ) . \u201d","On DATE LAW DATE replaced the DATE Code . The relevant part of LAW provides as follows :","\u201c Convicts ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . \u201d","Article CARDINAL \u00a7 CARDINAL provides :","\u201c The prison governor shall make decisions concerning the stopping or censorship of the correspondence if it is required by the prison security considerations [ and ] shall inform about it the penitentiary judge and the convict . \u201d","Article CARDINAL","\u201c The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand , subject to changes resulting from this chapter . \u201d","Article CARDINAL \u00a7 CARDINAL","\u201c Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . \u201d","Article CARDINAL \u00a7 CARDINAL reads , in so far as relevant , as follows :","\u201c ( ... ) detainee 's correspondence shall be censored by [ the organ at whose disposal he remains ] , unless the organ decides otherwise . \u201d","Article CARDINAL \u00a7 CARDINAL of reads as follows :","\u201c The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter . \u201d","On DATE the Rules of Detention on Remand CARDINAL entered into force .","\u00a7 CARDINAL of the ORG provides :","\u201c The detainee 's correspondence , including the correspondence with the international institutions for the protection of human rights , which act on the basis of international agreements ratified by GPE , with the ORG and public and local government institutions , is mailed through the intermediary of the organ at whose disposal he remains . \u201d","\u00a7 ORG provides :","\u201c CARDINAL . If the organ at whose disposal [ a detainee ] remains ceases to censor correspondence , it shall be subject to the supervision or censorship by the prison administration , except for cases referred to in LAW and LAW ( CARDINAL ) and CARDINAL of the Code [ of ORG Sentences ] .","NORP The correspondence of a detainee shall be supervised by the prison administration when necessary in the interest of protecting social interest , the security of a detention centre or requirements of personal re - education .","NORP The supervision referred to in paragraph CARDINAL shall be executed by controlling the content of the correspondence and acquainting oneself with its wording .","The correspondence referred to in ORG CARDINAL \u00a7 CARDINAL , CARDINAL ( CARDINAL ) and CARDINAL \u00a7 CARDINAL of the Code [ of ORG Sentences ] may be only subjected to the control of its content , which shall take place in the presence of a detainee . \u201d","\u00a7 CARDINAL provides :","\u201c CARDINAL . Detainee 's correspondence shall be censored or seized by the prison administration in the case referred to in LAW [ of LAW ] .","Censorship shall mean deleting a part of text or making it illegible , whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file .","NORP The decision to censor or to seize correspondence shall be taken by a Governor , who shall inform a detainee about the reasons for censorship or for seizure .","For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee 's personal file ; if the detainee consults the file , copies of the correspondence before it was censored and the seized correspondence shall not be made available [ to him ] . \u201d"],"violated_articles":["5","6","8"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101560","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2010,"docname":"CASE OF LANCHID HITEL ES FAKTOR ZRT. v. HUNGARY","importance":3,"conclusion":"Remainder inadmissible;Violation of P1-1;Pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria","text":["The applicant is a company limited by shares with its seat in GPE .","By way of assignments for consideration , done in DATE and DATE , the applicant acquired \u2013 through intermediaries \u2013 the debts of GPE ORG and PERSON from ORG . The debts consisted mostly of unpaid payroll taxes and social security contributions and originated in DATE .","NORP Since the debtors had become insolvent , the applicant brought an action against the ORG - owned ORG ( \u00c1PV Rt ) before ORG in order to recover the assigned claims . Relying on section CARDINAL of the ( Old ) Companies Act DATE , it argued that \u00c1PV Rt \u2013 the majority owner of the CARDINAL debtor companies \u2013 bore vicarious liability for the outstanding debts .","On DATE ORG partly found for the applicant . The court awarded MONEY ( ORG ) to the applicant , which corresponded to the debts of PERSON other than the payroll taxes and social security contributions . It dismissed the action in respect of the latter items . The applicant was obliged to pay ORG CARDINAL to the respondent in legal fees .","The applicant appealed . It claimed MONEY ( ORG ) plus accrued interest on account of the remaining debts of PERSON and ORG accrued interest on account of those of PERSON .","ORG upheld the first - instance decision on DATE . The applicant was obliged to pay ORG CARDINAL as procedural fees .","The applicant lodged a petition for review with ORG in respect of the social security contributions owed by PERSON . It submitted that their amount altogether was MONEY \u2013 a sum including the principal of ORG DATE but susceptible to further taking of evidence in resumed proceedings .","On DATE ORG upheld ORG decision . It was satisfied that \u00c1PV PERSON indeed bore vicarious liability in the circumstances . Relying on ORG no . CARDINAL , it held however that \u2013 pursuant to sections PERSON ) and PERSON ) of the ( Old ) Taxation Order Act DATE for the impugned social security contributions to be enforceable by the applicant , a decision should have been issued by ORG establishing the vicarious liability . For want of such a decision , the contributions could not be enforced by the applicant , since the assignment had not conferred any public law powers on it . The applicant was obliged to pay once more ORG CARDINAL as procedural fee .","Section CARDINAL of the ( Old ) Companies Act DATE provided as follows :","\u201c ( CARDINAL ) If [ the majority - owner , i.e. controlling ] joint - stock company acquires such part of the shares of [ the controlled joint - stock company ] as exceeding CARDINAL of [ the latter 's ] share capital , the board of directors of the controlling ... company ... may give instructions concerning the management of the [ controlled ] ... company to [ its ] board of directors , which the latter must carry out ( \u201c joint - stock company under direct control \u201d ) .","( CARDINAL ) The controlling ... company shall bear unlimited liability for the debts of the joint - stock company under direct control . \u201d","Section CARDINAL(CARDINAL ) c ) of the ( Old ) Taxation Order Act DATE ( no . XCI of DATE ) ( as in force at the material time ) provides that the LAW is to be applied to the payment of social security contributions . Section CARDINAL(CARDINAL ) f ) provides that , if a taxpayer fails to pay the tax and it can not be recovered from that taxpayer , ORG is entitled to the adoption of a decision establishing vicarious liability to cover the outstanding debt . Sections CARDINAL ) and CARDINAL ) , CARDINAL ) and CARDINAL ) of the ( New ) Taxation Order Act DATE ( no . ORG of DATE ) contain identical rules .","The interpretation that assignees can not claim in civil courts outstanding taxes from those with vicarious liability was upheld by ORG no . CARDINAL . It considered that , under both Taxation Order Acts , vicarious liability for tax debts was to be established by a decision of ORG .","NORP However , the above legislation was subsequently repealed by Act no . LVI of DATE . According to the reasoning of the bill , the interpretation of ORG in Uniformity Decision no . DATE an economically unjustified misconception of the law running counter to the intentions of the lawmaker DATE rendered unenforceable and thus worthless those tax debts which could not be recovered in the liquidation of the original debtors . Therefore the legal avenue of a civil action was to be opened for the assignees of such claims vis - \u00e0 - vis those with vicarious liability , so as to restore constitutionality in terms of the right to access to a court in this context ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100279","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF SERGEY TIMOFEYEV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste","text":["The applicant was born in DATE and lives in the town of PERSON , in GPE .","On DATE ORG instituted criminal proceedings against the applicant and PERSON for rape and attempted rape of CARDINAL victims . On DATE the proceedings were terminated for lack of evidence .","On DATE the decision of CARDINAL DATE was quashed and the case was remitted for a further investigation .","On DATE the applicant was remanded in custody on suspicion of rape and attempted rape . On an unspecified date he was released . A preventive measure in the form of an undertaking not to abscond was applied both to the applicant and PERSON","On DATE the ORG acquitted the applicant and PERSON of rape and attempted rape .","On DATE the Rostov ORG quashed the firstinstance judgment on appeal and remitted the case for a fresh examination .","On DATE the ORG of the Rostov ORG quashed the judgment of DATE and remitted the case for a new examination in the second instance .","NORP On DATE a hearing before the Rostov ORG was postponed because the applicant 's counsel , PERSON , was occupied .","On DATE , DATE and CARDINAL DATE ORG postponed appeal hearings because the applicant was ill .","On DATE ORG postponed a hearing because they had received a telegram from an anonymous sender requesting that the applicant 's case be taken off the list of appeals to be heard .","On DATE , as well as on DATE and DATE ORG postponed appeal hearings because of the applicant 's illness .","On DATE ORG decided to examine the appeal in the applicant 's absence , quashed the judgment of DATE and remitted the case for a fresh examination in the first instance . The applicant 's counsel was not present at the hearing .","On DATE the ORG scheduled a hearing for DATE .","On DATE ORG ordered PERSON to be summoned to a hearing . It appears that PERSON failed to comply with the summons .","On DATE the criminal proceedings against the applicant and PERSON were suspended . The preventive measure in PERSON respect was changed to custodial detention and he was put on a wanted list . ORG decided not to proceed with the examination of the case . The applicant and his lawyer did not appeal against the decision .","On DATE the criminal proceedings were resumed in respect of the applicant .","On DATE the ORG postponed a trial hearing owing to the applicant 's failure to appear .","On DATE a trial hearing was postponed to DATE .","On DATE a hearing was postponed owing to witnesses ' and the applicant 's counsel 's failure to appear . PERSON was absent because of a business trip .","On DATE a hearing was postponed because of the applicant 's illness .","On DATE a hearing was postponed on a prosecutor 's request in charge of the search for PERSON","On DATE a hearing was postponed because CARDINAL of the victims failed to attend .","On DATE a hearing was postponed until DATE on the applicant 's request , to allow him to study the case file .","On DATE the ORG dismissed PERSON request to suspend the proceedings against the applicant pending the search for PERSON The applicant 's counsel appealed against the ruling on DATE .","DATE and DATE ORG held hearings on the applicant 's case DATE .","On DATE the ORG dismissed the applicant 's request that the proceedings be terminated on the basis of LAW of the CARDINALth Anniversary of the Victory in the Great Patriotic War of DATE adopted by the NORP State Duma on DATE ( \u201c the LAW \u201d ) .","On DATE a hearing was postponed because the applicant was ill .","On DATE the criminal proceedings in respect of the applicant were suspended because of his illness .","On DATE ORG upheld the rulings of CARDINAL and DATE .","On DATE the proceedings against the applicant were resumed and a hearing was scheduled on DATE .","On DATE ORG held a hearing , dismissed the applicant 's challenge in respect of the composition of the court and a request for a medical examination and postponed the hearing until DATE .","On DATE the Presidium of the Rostov ORG quashed by way of supervisory review the refusal to dismiss the applicant 's requests of DATE .","On DATE the Chief Doctor of ORG informed the trial court that the applicant had been diagnosed with malignant lymphoma and had undergone gastrectomy ( removal of the stomach ) and hemicolectomy ( removal of a part of the colon ) . He underlined that the applicant had a first - degree disability and \u201c dumping syndrome \u201d ( rapid fall in blood sugar after eating ) which did not allow him to participate in the hearing ; and that any stressful situation could aggravate his condition .","On DATE the criminal proceedings in respect of the applicant were suspended because of his illness .","On DATE the Rostov ORG quashed the ruling of CARDINAL DATE and remitted the case for a fresh examination to ORG with a new composition .","NORP On DATE a hearing was scheduled for DATE .","On DATE the proceedings in respect of the applicant were suspended because of his illness and then resumed on DATE .","On DATE hearings were postponed because of the applicant 's absence .","On DATE the proceedings in respect of the applicant were suspended because of his illness and then resumed on DATE .","On DATE a hearing was postponed because the applicant 's counsel , PERSON , was occupied .","On DATE the ORG heard the applicant , his counsel , the victim and several witnesses and examined written evidence .","On DATE the ORG convicted the applicant of rape and attempted rape and sentenced him to DATE imprisonment . The applicant was exempted from serving the sentence under LAW .","On DATE one of the victims appealed against the judgment .","On DATE and DATE the applicant lodged appeals against his conviction , challenging , inter alia , the court 's factual findings . According to the applicant , he requested ORG to examine his appeal in his presence . According to the ORG 's submissions , the applicant did not request to be present at a hearing .","DATE . On DATE the prosecutor appealed against the judgment of CARDINAL DATE .","On DATE the applicant lodged an additional appeal in which he made detailed complaints alleging deficiencies in the first - instance proceedings . According to the Government , he also requested that an appeal hearing be held in his presence .","On DATE the victim lodged an additional appeal , which was forwarded to the applicant for comments .","On DATE the ORG received the applicant 's comments on the victim 's and prosecutor 's appeals and then forwarded the case to ORG . An appeal hearing was scheduled for DATE .","On DATE the Rostov ORG postponed an appeal hearing to CARDINAL DATE because the applicant was ill .","On DATE the applicant did not appear before ORG because he was ill . The hearing was postponed until DATE .","On DATE the appeal hearing was again postponed because of the applicant 's failure to appear in the court - room due to illness .","NORP In DATE the President of ORG requested ORG and Chief Doctor of ORG to provide information on the applicant 's state of health with a view to the possibility of his participating in an appeal hearing scheduled for DATE .","On DATE ORG informed ORG that the applicant was suffering from a malignant lymphoma and that DATE and DATE he had been hospitalised . The applicant was weak ; a stressful situation would have an adverse impact on his state of health . It was not possible to predict or assume a date when he would be available for an appeal hearing .","On DATE the applicant sent a telegram to ORG , requesting that the hearing be adjourned as he was in hospital . He also asked if the court was equipped with facilities to enable wheelchair access .","On DATE the Rostov ORG decided to reject the applicant 's request to adjourn the appeal hearing . It referred to the applicant 's serious state of health , and the legislative rule that the appeal court must start examination of an appeal DATE after it has been lodged .","On DATE the Rostov ORG examined the case on appeal . The court heard submissions by the judge rapporteur and prosecutor , but the applicant 's counsel was not present at the hearing . The judgment of CARDINAL DATE was upheld .","On DATE the Rostov ORG rejected the applicant 's request for supervisory review proceedings . With respect to the applicant 's complaint about examination of the case on appeal in his absence the court found that the applicant had failed to appear \u201c for a farfetched reason \u201d .","An appeal court examines appeals with a view to verifying the lawfulness , validity and fairness of first - instance judgments ( LAW ) .","An appeal court must start the examination of an appeal DATE after its receipt ( LAW .","An appeal court can directly examine evidence , including additional material submitted by parties ( LAW and CARDINAL ) .","An appeal court may ( a ) uphold a first - instance judgment ; ( b ) quash it and terminate criminal proceedings ; ( c ) quash it and remit the case for a fresh examination in the first - instance ; and ( d ) amend the judgment ( Article CARDINAL \u00a7 CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91528","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2009,"docname":"SCHAEDEL v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .","The applicant was a citizen of the former GPE ( GPE ) who absconded to GPE in DATE . His real property was subsequently placed under ORG guardianship and sold to members of the GPE nomenclature ( hereinafter the \u201c occupiers \u201d ) in DATE . The occupiers were registered as owners of the property on DATE and lived in the house built on the property .","On DATE the applicant applied for the restitution of the property . On DATE the Hellersdorf - Hohensch\u00f6nhausen - Marzahn Office for the Regulation of Outstanding Property Issues ( Amt zur Regelung offener Verm\u00f6gensfragen ) decided , inter alia , that the occupiers had not acquired the property in good faith and ordered that the property be returned . The occupiers appealed against that decision . On DATE ORG ordered the return of the property to the applicant , and from that date the applicant was the owner of the property . The occupiers withdrew their application for leave to appeal on points of law on an unspecified date and subsequently vacated the property in DATE .","On DATE ORG refused to grant the applicant legal aid for a claim against the occupiers to obtain compensation for use of the property as regards the period from DATE to DATE on the ground that his application had no prospect of success . As to the period from DATE to DATE , and relying on a leading judgment of ORG of DATE ( see \u201c Relevant domestic law and practice \u201d below ) , the court noted that section CARDINAL ) of the Act on the Regulation of Outstanding Property Issues \/ Property Act ( Gesetz zur Regelung offener Verm\u00f6gensfragen\/ Verm\u00f6gensgesetz \u2013 hereinafter the \u201c LAW \u201d , see \u201c Relevant domestic law and practice \u201d below ) excluded compensation for the remaining period when the occupiers were registered as owners and had used the property solely as a dwelling . Any claim for compensation for use of property for DATE and DATE could only be raised before a district court in view of the value of the claim .","On DATE ORG upheld that decision .","On DATE ORG refused to accept the applicant \u2019s complaint for examination .","On DATE ORG refused to accept the applicant \u2019s constitutional complaint for examination ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","Under section CARDINAL(CARDINAL ) of LAW , an owner is not entitled to claim compensation for use of property from the tenants unless otherwise agreed or in respect of rent obtained after DATE .","On DATE ORG held in a leading judgment ( published in that court \u2019s official reports [ ORG ] volume CARDINAL , pp . CARDINAL et seq . ) that there were no lacunae in section GPE ) of LAW and hence no justification for its analogous application to claims for compensation for use of property other than those concerning rent obtained by the tenant after DATE . The court noted that the tenant was fully entitled to enjoy the property and its fruits prior to restitution . Citing the relevant legislative materials , the court further noted that the legislature had provided for the exception only to urge occupiers to use the rent to maintain the property prior to restitution ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4932","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":1999,"docname":"SYRKIN v. RUSSIA","importance":3,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant is a NORP citizen , born in DATE and living in GPE , GPE .","In DATE the applicant 's son , an army officer , was sent to serve in the NORP military unit in GPE , GPE . On DATE he informed his parents over the phone that he would be leaving for his home leave in GPE by car . Following this announcement he disappeared . On DATE the military authorities initiated a criminal investigation into his disappearance on the suspicion of his having deserted his duty station after failing to return at the end of his leave .","Since then the applicant has addressed numerous letters to various authorities concerning the fate of his son .","On DATE the military prosecutor informed the applicant that he had contacted the NORP authorities with a request for assistance in establishing his son 's whereabouts .","On DATE the military prosecutor announced that the NORP authorities had not yet reported anything positive and that the applicant 's theory of his son possibly being in a city hospital had not been proved to be true .","On DATE the military prosecutor informed the applicant that the authorities of GPE , GPE and GPE had also been involved in the investigation of his son 's whereabouts .","In DATE the applicant visited his son 's military duty station in GPE . During his visit he had the possibility of acquainting himself with his son 's case file and of discussing the matter with the investigative authorities as well as with his son 's fellow servicemen .","On DATE the military prosecutor assured the applicant of the continuing active search for his son .","On DATE the military prosecutor informed the applicant that , based on the reply by the NORP authorities , his son had not been found in any of the NORP medical or military establishments .","On DATE the military prosecutor stated that the physical search for his son in the territory of foreign GPE could only be carried out by the authorities of those GPE and that search requests had been sent to the NORP , NORP , GPE and GPE authorities .","In DATE the military unit in which the applicant 's son had served was withdrawn from GPE and stationed in GPE .","It appears that on an unspecified date in DATE the criminal investigation had been suspended . The investigation , however , recommenced prior to DATE , apparently after an intervention by ORG office .","On DATE the Prosecutor General 's office stated that the reason for continuing the investigation was the fact that it had been inadequate . On DATE the applicant was informed that the basis of the investigation had been changed as the probable cause of his son 's disappearance was murder rather than desertion .","On DATE the criminal investigation was suspended again . Following an intervention by the military prosecutor of ORG , who considered that the investigation had been inadequate , the proceedings recommenced on DATE .","On DATE the criminal investigation was once more suspended . On CARDINAL DATE the military prosecutor of ORG stated that , despite the suspension of the preliminary investigation , the search for the applicant 's son 's whereabouts was continuing . However , the efforts of the NORP and NORP authorities , as well as of the ORG national offices in GPE and GPE , had not led to a positive result .","On DATE the Chief Military Prosecutor of GPE announced that , as the criminal investigation had been incomplete , the proceedings had recommenced DATE .","On DATE ORG of the Russian ORG announced that the applicant 's son no longer appeared on its staff list .","The applicant has also addressed numerous letters concerning the fate of his son to the NORP authorities . On DATE ORG replied that , according to the NORP authorities , his son never exited the NORP border and that it had sent search requests to ORG offices in CARDINAL NORP countries .",""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98097","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2010,"docname":"LISS v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national ( formerly a NORP national ) who was born in DATE and lives in Bergkamen . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In the DATE Olympic Games in GPE the applicant won a silver medal in cycling , representing GPE .","In DATE the applicant developed kidney trouble and went to GPE to undergo dialysis and a kidney transplant . According to the applicant \u2019s submissions , such treatment was not available in GPE at that time .","In DATE he had his first transplant .","Also in DATE the applicant \u2019s mother died and the applicant was granted a single - entry visa to GPE on an exceptional basis .","In DATE the applicant waived his NORP citizenship and became a NORP national .","B. Events after DATE","In DATE the applicant underwent another kidney transplant in GPE .","On DATE the applicant requested the NORP President of ORG ( Prezes Urz\u0119du Kultury Fizycznej i Sportu ) to grant him a special payment provided for NORP .","On DATE the President of ORG refused his request on the ground that he was not a NORP national and did not have his permanent place of residence in GPE as required by the relevant law .","On DATE the applicant lodged a request for reconsideration of that decision .","On DATE the President of ORG confirmed his decision of DATE .","The applicant appealed to ORG ( PERSON ) .","On DATE ORG dismissed the applicant \u2019s complaint . The court found that the applicant had not satisfied CARDINAL of the CARDINAL conditions listed in section CARDINALa of the LAW DATE on ORG ( ustawa o kulturze fizycznej ) ( \u201c the DATE LAW ) , namely he was not a NORP national and did not have his place of residence in GPE . Accordingly , the court found that the challenged decision had been given in accordance with the law and that the applicant \u2019s complaint therefore had to be dismissed .","In DATE the applicant requested the relevant NORP authorities to grant him NORP citizenship .","On DATE the President of GPE granted the applicant NORP citizenship .","On DATE the Professional Sports Act ( Ustawa o sporcie kwalifikowanym ) of DATE entered into force . The new law replaced the condition of a permanent place of residence in GPE by a requirement of having a permanent place of residence on the territory of GPE or another member ORG of ORG .","On DATE the Minister of Sport ( Minister PERSON ) gave a decision and granted the applicant the special payment provided for NORP in the amount of MONEY ( ORG ) DATE , finding that the applicant had fulfilled all the requirements listed in the new law .","Special payment for NORP","At the relevant time the issue of special payment for NORP was regulated by ORG of DATE ( \u201c the DATE Act \u201d ) ( \u201d LOC o kulturze fizycznej \u201d ) . LAW a as introduced into \u201c the DATE LAW by LAW to LAW \u201c LOC o zmianie ustawy o kulturze fizycznej \u201d ) with effect from DATE , provided , in so far as relevant :","\u201c Representatives of GPE in the DATE or Winter Olympic Games , who :","CARDINAL ) have won CARDINAL Olympic medal ,","CARDINAL ) NORP are at least thirty - five years of age and do not take part in competitive sports ,","CARDINAL ) NORP have NORP citizenship ,","CARDINAL ) have their permanent place of residence on the territory of GPE ,","CARDINAL ) have not been convicted of an intentional offence","- are entitled to payments from ORG . \u201d","On DATE the CARDINAL Act was amended and the provisions on special payments for NORP were incorporated in the new LAW of DATE ( ustawa o sporcie kwalifikowanym ) . The relevant amendment , which entered into force on DATE , broadened the range of persons entitled to the special payment by including those who had their permanent place of residence either in GPE or in another ORG member ORG . The criterion of NORP nationality remained .","Article CARDINAL \u00a7 CARDINAL of the LAW , which entered into force on DATE , provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","At the relevant time LAW of CARDINAL DATE on ORG ( Ustawa o Naczelnym S\u0105dzie Administracyjnym ) provided that in cases terminated by a final judgment of the court the proceedings might be reopened at the request of a party to the proceedings or ex officio ...","According to LAW provisions of LAW applied respectively to the proceedings before ORG .","Article CARDINAL of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94837","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF BORDIKOV v. RUSSIA","importance":3,"conclusion":"Violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);No violation of Art. 5-3;No violation of Art. 6-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and is serving a prison sentence in GPE .","On DATE the police uncovered a substantial quantity of marijuana in CARDINAL of the offices of ORG . A witness testified that the drug had been left there by the applicant , who was arrested DATE and then released on DATE on a written undertaking not to leave town . It appears that the applicant failed to appear for questioning on several occasions . The authorities failed to establish his whereabouts and on CARDINAL DATE the criminal investigation was suspended .","The applicant was arrested on DATE . The police found cocaine on him . More drugs and some ammunition were discovered in his flat . On DATE the prosecutor authorised his detention pending investigation , referring to the risk of his absconding . It was further extended on DATE until DATE .","Upon completion of the investigation , the prosecutor forwarded the case file to ORG of PERSON - on - PERSON on DATE . ORG found , however , that the case should be remitted to the prosecutor 's office for additional investigation . The relevant decision was issued on DATE . The court also ruled that the applicant should remain in custody .","Once the additional investigation was completed and the case file was forwarded to ORG , the latter scheduled the hearing of the case for DATE . The first CARDINAL hearings were adjourned on CARDINAL DATE and CARDINAL DATE on account of the judge 's involvement in other proceedings . Subsequently , ORG found certain procedural irregularities in the bill of indictment and remitted the case to the prosecutor 's office on DATE for their rectification . The applicant 's detention pending investigation was further authorised by the prosecutor on DATE until DATE .","On DATE the maximum permissible period of the applicant 's detention pending investigation expired . DATE the applicant was released on an undertaking not to leave town .","The trial was opened on DATE . ORG scheduled the hearing of the case for DATE ; it was subsequently adjourned owing to the applicant 's lawyer 's failure to appear . The hearing was further adjourned on DATE and CARDINAL DATE owing to the applicant 's illness . It was resumed on DATE . Referring to the gravity of the charges , the court ordered the applicant 's detention pending trial .","On DATE ORG found the applicant guilty of unlawful possession of ammunition and drugs and gave him a suspended sentence of DATE imprisonment , conditional on DATE probation . The applicant was released on a written undertaking not to leave town . Both the prosecutor and the applicant appealed .","The Rostov ORG adjourned the appeal hearing owing to the applicant 's lawyer 's failure to appear on CARDINAL DATE and DATE and DATE . The matter was considered on DATE . ORG held that the trial court 's findings were inconclusive , quashed the conviction and remitted the case to the lower court for fresh consideration .","On DATE ORG ordered that the proceedings should be stayed because of the applicant 's illness . They were resumed on DATE , when the court scheduled the first hearing for DATE . The court also directed that the applicant should be detained pending trial . No time - limit was fixed . In particular , the court ruled as follows :","\u201c ... the court considers it necessary to revoke [ the applicant 's ] undertaking not to leave town and to order his detention pending trial since he is charged with several serious and grave offences involving illegal drug dealing which present a heightened danger to public order and impinge on such an important value protected by the criminal law as public health . When deciding on [ the applicant 's ] detention , the court notes that , according to the medical documentation , there are no circumstances rendering him unfit for detention . Furthermore , the remand prison and special hospital no . CARDINAL are equipped with adequate facilities to provide professional medical assistance to the detainees , if necessary . \u201d","The police failed to execute the court 's order as the applicant 's whereabouts were unknown . On DATE the applicant 's name was put on the wanted persons ' list . He was arrested by the police and remanded in custody on CARDINAL DATE .","The hearing of the case was adjourned owing to the defence counsel 's failure to appear on DATE , DATE , DATE and DATE , DATE and DATE and DATE and DATE . On DATE the hearing was adjourned because the judge was involved in other proceedings .","On DATE ORG dismissed an application by the applicant for release , in which he had alleged that his health had deteriorated , that he had a permanent residence and that he had not failed to observe his undertaking not to leave town . The court noted as follows :","\u201c The court does not consider it practical to release [ the applicant ] pending trial . This measure is not only used to anticipate his custodial sentence as he is charged with serious and grave offences which impinge on such an important value as public health and present a heightened danger to public order . The court considers that , if released , [ the applicant ] might interfere with the administration of justice or abscond . \u201d","DATE and DATE ORG adjourned CARDINAL hearings in the case on account of the applicant 's or his counsel 's illness or the latter 's failure to appear . Twice the court adjourned the hearing because of the absence of witnesses . On CARDINAL occasions the court granted a request by the applicant for additional time to study the case file .","The applicant 's detention was extended on DATE until DATE . The court stated the following :","\u201c The court does not consider it practical to release [ the applicant ] pending trial . This measure is not only used to anticipate his custodial sentence . Given that [ the applicant ] is charged with grave and serious offences that present a heightened danger to public order , [ his ] detention may be also justified by this fact alone ... Furthermore , if released , [ the applicant ] might abscond , as he has done in the past ... or interfere with the administration of justice . \u201d","The applicant appealed , referring to his health problems . He further claimed that ORG conclusions that he might abscond or interfere with the administration of justice lacked any substantiation . On DATE ORG upheld the decision of DATE on appeal .","On DATE ORG extended the applicant 's detention until DATE . The court reasoned as follows :","\u201c The court does not consider it practical not to extend the [ applicant 's ] detention and release him . His detention is not only used to anticipate his custodial sentence . Given that [ the applicant ] is charged with grave and serious offences that present a heightened danger to public order ... , the court ... considers it necessary to extend his detention ... Furthermore , if released , [ the applicant ] might abscond or fail to appear in court , as he has done in the past . That is the reason why his detention was ordered [ in the first place ] and his name was put on the wanted persons ' list . The length of the custodial sentence to which the applicant may be subjected if found guilty also indicates , although indirectly , that such a development is very likely . Besides , if released , [ the applicant ] might interfere with the administration of justice , given that his line of defence is contrary to the testimonies of most witnesses .","The lawyers ' argument that [ the applicant 's ] medical condition is serious can not be taken into consideration . No objective data or medical documents have been produced to the court to show that [ the applicant 's ] detention is incompatible with his condition . The court received only a medical report stating that [ the applicant ] is currently unable to participate in the hearing . Besides , according to the report , [ the applicant is being provided ] with the necessary medical assistance . \u201d","On DATE ORG upheld the order of DATE on appeal .","On DATE and DATE ORG extended the applicant 's detention until DATE and CARDINAL DATE respectively . Each time the court referred , as before , to the gravity of the charges against the applicant . It also noted that , if released , the applicant might abscond , as he had done in the past . The court further reasoned that it was impossible to place the applicant under house arrest or to use any other alternative \u201c preventive measure \u201d to ensure his attendance during the trial because , if released , he might put pressure on the witnesses who were to testify against him . On CARDINAL February and DATE ORG upheld the relevant court orders on appeal .","On DATE and DATE ORG considered the merits of the case and convicted the applicant of drug dealing and unlawful possession of drugs and ammunition , sentencing him to DATE and DATE imprisonment . It appears that the applicant did not appeal .","The applicant was released on or DATE since the time he had served in detention was taken to be credited towards the sentence .","From DATE to CARDINAL DATE the applicant was detained in remand prison no . IZ-CARDINAL\/CARDINAL in GPE - on - PERSON ( ORG \u0418\u0417-CARDINAL\/CARDINAL \u0433. GPE ) , in cells no . CARDINAL , CARDINAL and CARDINAL . Twice he was transferred to a prison hospital ( \u0423\u0427-CARDINAL\/CARDINAL \u041c\u041e\u0422\u0411 ) , where he stayed from CARDINAL August to DATE and from CARDINAL DATE . The applicant and the ORG submitted differing descriptions of the remand prison .","According to the applicant , the cells in the remand prison were overcrowded . The number of bunk beds in the cells was insufficient and the inmates had to take turns to sleep . The mattresses were dirty and damp . The bedding was rarely washed . The toilet was installed on a CARDINAL elevation platform and was not separated from the living area or the dining table . The food was of poor quality . The hot water supply was shut down on many occasions . The light was never switched off . There was little access to fresh air or daylight because of thick metal bars on the windows . In addition , there were no window panes and it was cold in DATE and stiflingly hot and humid in DATE . The cells were infested with cockroaches , bugs , bed lice and mites . The cells were never sanitised , no disinfectant was distributed and the use of powder detergent , immersion heaters and fridges was not allowed . The plaster on the walls contained poisonous and toxic substances .","Relying on certificates issued by the administration of the remand prison on CARDINAL and DATE , the Government submitted that the conditions of the applicant 's detention were satisfactory . There were a sufficient number of beds in each cell and the applicant had always had an individual sleeping place . The cells were equipped with a toilet and a sink . There was a separation wall between the toilet and the living area of the cell . The windows were not covered with metal shutters . The central heating ensured an adequate temperature in the cells . The cells were cleaned and disinfected on a regular basis . The bed sheets were washed and disinfected too . The cells were equipped with radio , lighting and a ventilation system . There was a dining table and a bench in each cell . The food was of adequate quality and diverse . The meals were served CARDINAL times a day and comprised CARDINAL different ingredients .","Relying on a certificate issued on DATE by the remand prison , the Government submitted that the plaster on the cell walls contained no poisonous or toxic substances . The paint used complied with State safety standards .","As regards the actual documents concerning the conditions of the applicant 's detention from DATE to DATE , the Government indicated that all the records had been destroyed after the statutory period for their storage had expired . In this connection they submitted a copy of the relevant certificate issued by the administration of the remand prison on CARDINAL DATE .","From DATE the applicant stayed in cell no . CARDINAL . According to the applicant , the cell measured QUANTITY . m and housed from CARDINAL inmates .","In their memorandum of DATE , the Government claimed that the cell measured QUANTITY . m and was equipped with CARDINAL beds . CARDINAL inmates , on average , were detained there . In their further observations the Government relied on the certificate signed by officer PERSON , acting head of the remand prison , on CARDINAL DATE . According to the certificate , the cell measured QUANTITY . m and housed CARDINAL persons at the relevant time .","DATE and then after DATE the applicant stayed in cell no . CARDINAL . According to the applicant , the cell measured CARDINAL sq . m and housed from CARDINAL inmates .","Originally the Government did not dispute the measurements of the cell . According to them , the cell was equipped with CARDINAL beds and housed , on average , QUANTITY inmates . The Government later submitted a certificate signed by officer PERSON on CARDINAL DATE to the effect that the cell measured QUANTITY . m and housed CARDINAL inmates .","On DATE the applicant was transferred into cell no . CARDINAL , located in the basement . According to the applicant , it measured QUANTITY . m and housed CARDINAL inmates . On DATE the entire basement , including cell no . CARDINAL , was flooded from the sewage system . On DATE the inmates were returned to cell no . CARDINAL .","The Government denied that the flooding incident had taken place . In their memorandum of CARDINAL DATE they did not accept the number of inmates or the cell measurements quoted by the applicant . According to them , the cell measured QUANTITY sq . m and housed , on average , CARDINAL inmates . Each of them had an individual bed . According to the certificate signed by officer PERSON on CARDINAL DATE , the cell measured QUANTITY . m. It was equipped with CARDINAL beds and housed CARDINAL inmates .","According to the applicant , in DATE he was repeatedly placed in the \u201c assembly \u201d cell . It measured QUANTITY m and had no windows , no ventilation system , no drinking water and no place for rest . The floor was dusted with bleaching powder . The walls were coated with \u201c shuba \u201d , a sort of abrasive concrete lining . No access to a toilet was allowed .","On an unspecified date the applicant spent TIME in that cell ; on DATE he was held there for TIME , and he was subsequently locked in the cell for TIME from TIME on DATE to TIME on DATE .","The Government admitted that the applicant had been detained in the \u201c assembly \u201d cell on DATE only . They acknowledged that the applicant 's detention there contravened the applicable rules and regulations .","According to the applicant 's medical file , at least once DATE he was examined by doctors of the remand centre , who administered injections and provided medication to treat his hypertension . In particular , the medical file contains the following information .","On DATE the applicant received injections in connection with a hypertonic crisis . Following the treatment , his blood pressure lowered from CARDINAL to CARDINAL\/CARDINAL .","From DATE to DATE and from DATE to CARDINAL DATE the applicant received treatment in hospital . He was released once his condition was recognised as satisfactory .","On DATE the applicant complained of hypertension . He was examined by a doctor , who administered an injection and prescribed medication .","On DATE , DATE and DATE the doctor examined the applicant and treated his hypertension ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3","5","6"],"non_violated_paragraphs":["5-3","6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106786","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF KALAYLI v. TURKEY","importance":4,"conclusion":"Violation of Art. 5-4","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG issued an arrest warrant for the applicant on suspicion of assault and attempted murder .","On DATE ORG filed a bill of indictment charging the applicant with the offences of assault and attempted murder .","On DATE the applicant was arrested .","On DATE ORG ordered the applicant \u2019s detention on remand .","On DATE ORG sentenced the applicant to DATE and CARDINAL months\u2019 imprisonment .","On DATE ORG ordered the applicant \u2019s release pending trial , having considered the time spent under detention on remand .","On DATE ORG upheld the judgment of DATE .","DATE and DATE , ORG examined the applicant \u2019s continued detention at the end of every hearing , either of its own motion or upon the applicant \u2019s requests . On each occasion , the court ordered the applicant \u2019s continued detention , having regard to the state of the evidence , nature of the offence , content of the file and the incomplete collection of evidence .","A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure ( ORG ) ( PERSON no . DATE ) on DATE may be found in PERSON and GPE v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) . The current practice under PERSON no . CARDINAL is outlined in GPE and Others v. GPE ( nos . GPE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , ORG and CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79044","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF BAK v. POLAND","importance":2,"conclusion":"No violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested on suspicion of having committed CARDINAL armed robberies together with other persons .","On DATE the ORG decided to detain the applicant on remand . The decision was based on the high probability that the applicant had committed the crimes with which he had been charged , which was confirmed by evidence , in particular the testimonies of one of the co - accused . In addition , the court stated that there was a serious risk that the applicant might attempt to influence the co - accused and the witnesses and thus obstruct the proper course of the proceedings , since as an imprisoned person he was entitled in particular to have breaks in serving the penalty and to correspond without any censorship . On DATE the ORG upheld the decision .","Subsequently , the applicant \u2019s detention was prolonged on several occasions ( on DATE and DATE , CARDINAL DATE and DATE , DATE , DATE and DATE , DATE , DATE , DATE and DATE , DATE , DATE , DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , and DATE ) . The courts based their decisions on the reasonable suspicion that the applicant had committed the offence concerned , the severity of the penalty he faced and the risk of his collusion and absconding . During the preparatory proceedings the extension of his detention was also justified by the need to obtain further evidence , in particular to obtain expert opinions , to make inquiries at his home , to take evidence from the suspects and to confront them .","From DATE to DATE the applicant served a prison sentence imposed on him in separate proceedings .","The applicant lodged a considerable number of applications for release from detention or for commutation of the preventive measure to a less severe one , on the ground of his poor state of health or other reasons ( on DATE , DATE and DATE , CARDINAL DATE , DATE , DATE and DATE and DATE ) ; however , they were dismissed in decisions of DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , and DATE and DATE .","The applicant also challenged the decisions prolonging his detention , but those applications were likewise dismissed on DATE , CARDINAL DATE and DATE , CARDINAL DATE and DATE , DATE , DATE and DATE , and DATE , DATE , DATE , DATE and DATE .","During the preparatory proceedings QUANTITY persons ( including the applicant ) were arrested . The public prosecutor took evidence from CARDINAL witnesses and the suspects were interviewed CARDINAL times . CARDINAL expert opinions were obtained , CARDINAL confrontations and CARDINAL searches of individuals , LOC and other places were carried out and identity parades were conducted on CARDINAL occasions . Numerous documents were obtained , in particular bills of phone calls made by the suspects , their criminal records and copies of judgments .","From DATE to DATE the applicant served a sentence of DATE and CARDINAL months\u2019 imprisonment imposed on him in separate proceedings .","The applicant was indicted before the Gda\u0144sk Regional Court on DATE . The bill of indictment concerned CARDINAL charges and CARDINAL accused ( CARDINAL of whom , including the applicant , were detained ) . The applicant was charged with illegal possession of firearms , CARDINAL armed robberies , CARDINAL robbery involving the use of dangerous implements and resulting in serious injuries , and participation in an organised armed criminal gang . Charges against the other accused also concerned attempted murder , theft , burglary and handling stolen goods . The public prosecutor requested the court to examine CARDINAL experts and CARDINAL witnesses and to read out the testimonies of a further CARDINAL witnesses . The case file at that date comprised CARDINAL volumes and the bill of indictment with the statement of reasons ran to CARDINAL pages .","In the period from DATE to DATE the first - instance court held CARDINAL hearings . In addition CARDINAL separate sittings were held at which the court decided to prolong the applicant \u2019s detention , and on CARDINAL occasions witnesses were examined away from the court \u2019s LOC . CARDINAL hearings had to be cancelled , on grounds not attributable to the court .","From DATE to DATE the applicant served a prison sentence imposed on him in separate proceedings .","On DATE and DATE and DATE the court held hearings . It decided to examine the case against CARDINAL of the co - accused separately as his serious illness could have led to delays in the proceedings , and heard evidence from an expert and CARDINAL defendants , including the applicant .","The hearing scheduled for DATE was adjourned as CARDINAL of the accused revoked his lawyer \u2019s power of attorney . As a result the hearing scheduled for DATE had to be cancelled as well .","The hearing scheduled for DATE and DATE was cancelled because the defendants had not appeared in court . The court contacted the relevant police headquarters and instructed them to supervise and secure the appearance of the detainees .","DATE and DATE QUANTITY hearings were held and the court examined the defendants and a total of CARDINAL witnesses . At a hearing of CARDINAL DATE the court requested ORG to extend the applicant \u2019s detention until DATE . The trial court repeated the grounds given in earlier decisions on his detention . In addition it pointed to the increased risk of collusion since one of the other defendants had significantly changed his version of events at a previous hearing . ORG granted the request on DATE , fully endorsing the reasons given by the first - instance court . It also noted that the proceedings were being conducted swiftly and that it had not been possible to terminate them for reasons not attributable to the trial court .","DATE and DATE the court held CARDINAL hearings during which the co - accused , CARDINAL experts and CARDINAL witnesses were examined and CARDINAL other witnesses refused to make any statements .","The hearing scheduled for DATE had to be adjourned owing to the absence of CARDINAL of the co - defendants and the lawyers of CARDINAL others . The court decided to address the relevant bodies of ORG and ordered the detention of the absent defendants .","DATE and DATE CARDINAL hearings were held and the parties , an expert and CARDINAL witnesses gave evidence . The court read out testimonies of CARDINAL other witnesses , taken in the preparatory proceedings .","On DATE the ORG sentenced the applicant to seven years\u2019 imprisonment and a fine of MONEY ( ORG ) . The length of his detention on remand was not deducted from the sentence because during the whole proceedings at issue the applicant had been serving a prison sentence imposed on him in separate proceedings . The judgment , with its reasoning , ran to CARDINAL pages .","NORP The applicant and other co - defendants appealed .","The appellate hearing scheduled for DATE was adjourned because the court decided ( at the request of the lawyer of CARDINAL of the co - accused ) to obtain an expert opinion on the co - accused \u2019s mental state and to hear evidence from an expert .","On DATE the ORG quashed the judgment in respect of CARDINAL of the accused , including the applicant , and remitted the case to the first - instance court , having found infringements of procedural law which might have influenced the outcome of the case .","In the period from DATE to CARDINAL DATE the ORG held CARDINAL hearings ; another CARDINAL were cancelled for various reasons . In addition , CARDINAL separate sittings were held at which the court decided on the applicant \u2019s detention .","At this stage of the proceedings all the defendants , including the applicant , became very active . In particular , the applicant challenged all subsequent decisions concerning his detention , requested copies or records after almost all the hearings , on CARDINAL occasions requested the court to transfer the case file to the detention centre in order to acquaint himself with its contents , made numerous applications for evidence to be adduced , for example requesting several expert opinions or the examination of witnesses , and lodged a considerable number of other applications .","The hearings scheduled for CARDINAL and CARDINAL May , CARDINAL , DATE and DATE were cancelled or adjourned because of the illness of a judge or the absence of defendants . The court appointed a new lawyer to replace one who had fallen ill .","DATE and DATE ORG held CARDINAL hearings and examined CARDINAL witnesses . Several other witnesses refused to testify or were absent .","From DATE to CARDINAL DATE the applicant served a prison sentence imposed in separate proceedings against him .","A hearing scheduled for DATE had to be adjourned owing to the absence of a co - defendant \u2019s lawyer . The court decided to contact the relevant bodies of ORG on this matter .","DATE and DATE CARDINAL hearings were held and an expert and CARDINAL witnesses gave evidence ; a further QUANTITY were absent . The court imposed a fine on CARDINAL witness who failed to appear at a hearing . CARDINAL hearings were cancelled owing to the illness of a judge or the absence of a witness .","On DATE the ORG dismissed the applicant \u2019s complaint under LAW on the breach of the right to a trial within a reasonable time , considering that on the date of entry into force of LAW the proceedings had not exceeded the reasonable - time requirement . The court thoroughly analysed the proceedings before and after that date . It noted that the actual length of the proceedings , even if the applicant had not contributed to it , could not be taken as the only criterion for holding that the time taken was excessive . In the court \u2019s opinion , the length of the proceedings could be found to be unreasonable if undue delays caused by inactivity or improper actions on the part of the court had occurred . The court did not establish any such circumstances in the case at issue and pointed to its extreme complexity , with the large number of plots and individuals involved , as the main cause of the length of the proceedings . The court noted that the trial court had conducted the proceedings in a proper way and had taken appropriate measures to discipline witnesses and other persons in the event of their absence .","DATE and DATE ORG held CARDINAL hearings and CARDINAL others had to be adjourned owing to the illness of a judge , the absence of a lawyer or a lack of police officers to guard the defendants on their way from the detention centre to the court . The testimonies of CARDINAL witnesses were heard and those of absent witnesses were read out .","The proceedings are currently pending before ORG .","The relevant domestic law concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) is set out in the ORG \u2019s judgments in the cases of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","The relevant domestic provisions and practice concerning the ORG \u2019s liability for a tort committed by its official , in connection with a right to a trial within a reasonable time , have already been cited in previous cases against GPE ( see , for example , PERSON v. GPE , no . CARDINAL , DATE , and ORG v. GPE , no . CARDINAL\/CARDINAL , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75646","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF MAMEDOVA v. RUSSIA","importance":2,"conclusion":"Violation of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE a criminal investigation into a financial fraud allegedly committed by the applicant in conspiracy with another person , was opened .","On DATE the applicant \u2019s flat was searched and she was informed about the suspicion against her .","On DATE the applicant was arrested and charged with large - scale fraud , an offence under LAW of LAW Criminal Code .","On DATE the ORG of PERSON ordered the applicant \u2019s detention on the ground that she was suspected of a serious criminal offence and that she would abscond because her accomplice had already absconded . She could also destroy evidence because some documents had not yet been seized .","On DATE the applicant sent her notice of appeal . She asked for a more lenient preventive measure and petitioned the court to take into account that she was charged with a financial crime , that she had no criminal record , had a permanent place of residence and employment in PERSON , family ties , a stable way of life and CARDINAL minor children aged DATE . If she wished , she could have absconded after the search in her flat . The fact that she had not fled from justice proved that she had no such intention . She also complained about inhuman conditions of her detention and sought leave to appear before the appeal court .","On DATE ORG upheld the detention order of DATE , finding that it had been lawful , sufficiently reasoned and justified . In ORG view , ORG had correctly assessed the applicant \u2019s \u201c character \u201d and other materials presented by the prosecutor . The appeal hearing took place in the presence of the prosecutor who repeated the arguments advanced before ORG and CARDINAL counsels for the applicant . The applicant \u2019s request for leave to appear in person was refused because her arguments were clearly set out in her notice of appeal and did not require additional clarifications .","On DATE the Frunzenskiy District Court extended the applicant \u2019s detention until DATE . The court grounded its decision on the gravity of the charge against the applicant and on the possibility that she could abscond or obstruct justice .","On DATE the applicant appealed . She complained that the decision of CARDINAL DATE was not sufficiently motivated , that the court did not take into account her individual situation , that the conditions of her detention were inhuman . She asked for release on bail .","The appeal hearing was scheduled for DATE . On DATE the hearing was adjourned because the applicant had not been brought to the courthouse .","On DATE the ORG found that there were no reasons to vary the preventive measure and upheld the decision of CARDINAL DATE .","On DATE the Frunzenskiy District Court extended the applicant \u2019s detention until DATE , finding as follows :","\u201c ... it is necessary to carry out many investigative actions with [ the applicant \u2019s ] participation .","[ The applicant ] is charged with a serious criminal offence . Besides , the prosecution submitted documents showing that , once released , [ the applicant ] can flee from justice and interfere with the establishment of the truth .","The court sees no reasons to vary or cancel the preventive measure applied to [ the applicant ] . \u201d","On DATE the applicant lodged a notice of appeal . On DATE the Vladimir Regional Court upheld the decision . It found that the decision had been lawful and sufficiently reasoned .","On DATE the ORG extended the applicant \u2019s detention until DATE with reference to the gravity of charges and the need for a further investigation . The court also mentioned that the applicant could abscond , obstruct justice or re - offend .","On DATE the applicant appealed . She referred , in particular , to inhuman conditions of her detention and asked for release on bail .","On DATE ORG upheld the decision of DATE . In particular , the appeal court noted that \u201c conditions of detention could not be taken into account when deciding on an extension of detention \u201d .","On DATE the Frunzenskiy District Court extended the applicant \u2019s detention until DATE . The reasoning was similar to that in the decision of DATE .","On DATE the applicant lodged her points of appeal . She submitted that she had already spent DATE in custody and that a further extension was permitted under the domestic law only if the case was particularly complex . The prosecution failed to show that her case was particularly complex . Nor did they prove that she intended to abscond or interfere with the establishment of the truth . The prosecution searched the applicant \u2019s flat and office and seized all the papers ; for that reason she could not destroy any evidence . The applicant asked the court to take account of her personal situation \u2013 her being a mother of CARDINAL minor children with a permanent place of residence and employment in PERSON - and inhuman conditions of her detention on remand . She complained that she had not been afforded an opportunity to study the materials submitted by the prosecution in support of their request for extension .","On DATE ORG upheld the decision of DATE . The appeal court endorsed the reasoning of the first - instance court . It further held :","\u201c The opinion of [ the applicant \u2019s ] lawyer that when considering the extension of detention it is necessary to take into account the conditions of detention in remand centres has no basis in the domestic law ...","The rules of criminal procedure ( Arts . CARDINAL , CARDINAL of LAW ) do not provide for disclosure of the materials submitted by the prosecution in support of a request for extension . Nor do they require that the court should hear the opinion of the parties concerning [ those materials ] . \u201d","On DATE ORG ordered the extension of the applicant \u2019s detention until DATE . It held that the applicant was charged with a serious criminal offence , that it was necessary to conduct an additional investigation and that there were no reasons to vary the preventive measure .","On DATE the applicant lodged her appeal . On DATE ORG upheld the decision .","On DATE the ORG extended the applicant \u2019s detention until DATE . It held that the extension was \u201c objectively justified \u201d because of the complexity of the case , the gravity of the charge and the risk of the applicant \u2019s absconding or her interfering with the establishment of the truth .","On DATE the applicant appealed . She repeated the arguments set out in the points of appeal of DATE and added that her father was seriously ill . On DATE ORG rejected the appeal .","On DATE ORG extended the applicant \u2019s detention until DATE . It referred to the complexity of the case ( the case - file comprised CARDINAL binders ) , the need for a further investigation , the gravity of the charge and the risk of the applicant \u2019s absconding or interfering with the establishment of the truth .","On DATE ORG upheld the decision on appeal .","On DATE the investigation was completed and the applicant was committed for trial . The applicant \u2019s lawyers petitioned the court for her release .","On DATE ORG of PERSON fixed the first hearing for DATE and ordered that the applicant should remain in custody .","On DATE the Leninskiy ORG established that the case was not ready for consideration on the merits because the applicant had not had sufficient time to study the case file and remitted the case for additional investigation . It ordered that the applicant should meanwhile remain in custody .","On DATE the acting prosecutor of PERSON varied the preventive measure . The applicant was released but ordered not to leave the town .","The applicant was held in detention facility no . IZ-CARDINAL\/CARDINAL in LOC .","According to a certificate of CARDINAL DATE from the facility administration , produced by the Government , the applicant was kept in CARDINAL cells described as follows : cells CARDINAL . CARDINAL and CARDINAL ( CARDINAL ORG , CARDINAL bunks , CARDINAL inmates on average ) , cell no . CARDINAL ( CARDINAL m\u00b2 , CARDINAL bunks , CARDINAL inmates on average ) and cell no . CARDINAL ( CARDINAL m\u00b2 , CARDINAL bunks , CARDINAL inmates on average ) . The Government submitted that the applicant had at all times had a separate bunk .","The applicant did not dispute the cell measurements and the number of bunks . She disagreed , however , with the number of inmates asserted by the Government . According to her , from DATE she was held in cell no . CARDINAL together with CARDINAL inmates ; from DATE she was kept in cell no . CARDINAL which accommodated CARDINAL detainees ; thereafter and until DATE she shared cell no . CARDINAL with CARDINAL inmates ; in TIME CARDINAL DATE she stayed in cell no . CARDINAL with CARDINAL other inmates ; and on DATE she was transferred back to cell no . CARDINAL that accommodated CARDINAL detainees . In cells nos . CARDINAL and CARDINAL she did not always have a separate bunk .","The Government , relying on a certificate of CARDINAL DATE from the facility administration , submitted that all cells were equipped with a lavatory pan . The pan had no cover but it was separated from the living area by a QUANTITY - high brick wall and an additional curtain of QUANTITY in height . Once a week the inmates were provided with detergent ( soda and chlorine ) . The dining table was situated QUANTITY away from the pan . The inmates were allowed to take a shower once DATE . The cells were naturally ventilated through the windows and the door vent . Fans were provided on request . There were no running hot water available but detainees were permitted to use immersion heaters . Besides , hot water for laundry and boiled drinking water was distributed . Once a week inmates were provided with clean bedding , towels and kitchenware . The cells were equipped with fluorescent lamps which functioned during day and TIME .","The applicant disagreed with the ORG \u2019s description and submitted that the sanitary conditions were unsatisfactory . The cells swarmed with insects , rats and mice . Inmates had to do their laundry indoors , creating excessive humidity in the cells . There was no artificial ventilation system . A fan was provided only in DATE . The windows were covered with thick metal bars that blocked access to natural light . The artificial light was never switched off disturbing the applicant \u2019s sleep .","NORP The applicant contested the Government \u2019s description of the toilet facilities . The pan was cleaned infrequently and it was very dirty and stinky . What is more , it had no cover : inmates stuck a plastic bottle in the hole in order to prevent smells from spreading . No curtains were provided and inmates had to hang a sheet which did not offer sufficient privacy . No toilet articles were distributed , save for CARDINAL g of soda and chloride and QUANTITY of laundry soap per week .","The applicant was allowed to take a shower once DATE . The entire cell was afforded TIME to shower , although there was CARDINAL shower heads . Soap was distributed after a shower . It was extremely cold in the shower room in DATE . On DATE or on DATE of family visits the applicant missed her chance to take shower .","The Government submitted that the applicant had an hour - long walk DATE .","The applicant conceded that an TIME - long walk was organised DATE . However , on shower days inmates were not allowed to go outdoors . The entire cell population was often left indoors as collective punishment for a disciplinary offence committed by CARDINAL inmate . The exercise yards were fenced by brick walls of QUANTITY in height with bars on the top . They were covered with a metal roof with a QUANTITY gap between the roof and the top of the walls . In DATE it was extremely hot and stifling inside because the sun heated the roof . Most of yards measured TIME , CARDINAL people were brought into the yard at once .","Since DATE criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE , the \u201c CCrP \u201d ) .","\u201c Preventive measures \u201d or \u201c measures of restraint \u201d ( \u043c\u0435\u0440\u044b \u043f\u0440\u0435\u0441\u0435\u0447\u0435\u043d\u0438\u044f ) include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( \u043e\u0431\u044f\u0437\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u043e \u043e \u044f\u0432\u043a\u0435 ) ( Article CARDINAL ) .","When deciding on a preventive measure , the competent authority is required to consider whether there are \u201c sufficient grounds to believe \u201d that the accused would abscond during the investigation or trial , re - offend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused \u2019s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .","Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .","After arrest the suspect is placed in custody \u201c pending the investigation \u201d . The maximum permitted period of detention \u201c pending the investigation \u201d is DATE but it can be extended for DATE in \u201c exceptional circumstances \u201d ( Article CARDINAL \u00a7 \u00a7 CARDINAL ) . The period of detention \u201c pending the investigation \u201d is calculated to DATE when the prosecutor sent the case to the trial court ( LAW ) .","From the date the prosecutor forwards the case to the trial court , the defendant \u2019s detention is \u201c before the court \u201d ( or \u201c during the trial \u201d ) . The period of detention \u201c during the trial \u201d is calculated to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .","An appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention . The appeal court must decide the appeal within DATE after its receipt ( LAW ) .","The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :","\u201c CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to ... minimum floor space , lighting , heating and ventilation ...","In all places where prisoners are required to live or work ,","( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;","( b ) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight .","The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .","Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower ... at least once DATE in a temperate climate .","All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .","Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...","Every prisoner shall ... be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .","( CARDINAL ) Every prisoner ... shall have TIME of suitable exercise in the open air DATE if the weather permits . \u201d","The relevant extracts from the CARDINALnd ORG by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :","\u201c CARDINAL . Overcrowding is an issue of direct relevance to the ORG \u2019s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ... Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .","Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...","Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...","The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet \/ washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners . \u201d","The relevant extracts from the ORG \u2019s CARDINALth ORG , governing conditions of detention of women [ ORG ( DATE ) CARDINAL ] , read as follows :","\u201c DATE . ... in all ORG member GPE , women inmates represent a comparatively small minority of persons deprived of their liberty . This can render it very costly for GPE to make separate provision for women in custody , with the result that they are often held at a small number of locations ( on occasion , far from their homes and those of any dependent children ) , in LOC which were originally designed for ( and may be shared by ) male detainees . In these circumstances , particular care is required to ensure that women deprived of their liberty are held in a safe and decent custodial environment ...","ORG also wishes to call attention to a number of hygiene and health issues in respect of which the needs of women deprived of their liberty differ significantly from those of men .","The specific hygiene needs of women should be addressed in an adequate manner . Ready access to sanitary and washing facilities , safe disposal arrangements for blood - stained articles , as well as provision of hygiene items , such as sanitary towels and tampons , are of particular importance .","The failure to provide such basic necessities can amount , in itself , to degrading treatment . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-85467","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2008,"docname":"CASE OF G\u00dcM\u00dc\u015eO\u011eLU v. TURKEY","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Antonella Mularoni;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria","text":["The applicants were born in DATE , DATE and DATE respectively and live in LOC .","On various dates , the applicants bought plots of land ( nos . DATE , CARDINAL and CARDINAL respectively ) near the coast in Hatay . They each built a house there .","NORP In DATE the ORG filed an action before ORG , requesting the annulment of the ORG title deeds to the land on the ground that they were located within the coastline .","On DATE ( nos . CARDINAL ) and DATE ( CARDINAL ) , ORG , relying , particularly , on expert reports , upheld the request of the ORG and annulled the title deeds of the applicants to the plots of land . In its decisions , the court held that , pursuant to domestic law , coasts could not be subject to private ownership and that , therefore , the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the site .","On various dates the applicants appealed . In their petitions they submitted , inter alia , that the right to property - a human rights norm - was protected under the constitution and the domestic law , and that the domestic courts had deprived them of their property rights without proper examination and without a payment of compensation . On DATE their appeals were dismissed by ORG .","On various dates the applicants requested ORG to rectify its decision . ORG dismissed the ORG requests on DATE ( nos . CARDINAL and CARDINAL ) and DATE ( no . CARDINAL ) . These decisions were served on the applicants on DATE ( ORG . CARDINAL and CARDINAL ) and DATE ( no . CARDINAL ) .","The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON v. GPE judgment ( no . CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101173","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF PETUKHOV v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award","judges":"Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and is currently serving a life sentence in FAC no . CARDINAL ( \u0421\u043e\u043a\u0430\u043b\u044c\u0441\u044c\u043a\u0430 \u0432\u0438\u043f\u0440\u0430\u0432\u043d\u0430 \u043a\u043e\u043b\u043e\u043d\u0456\u044f \u2116 CARDINAL ) .","On DATE policemen attached to ORG ( \u041a\u043e\u043c\u0456\u043d\u0442\u0435\u0440\u043d\u0456\u0432\u0441\u044c\u043a\u0438\u0439 \u0420\u0412 \u0425\u041c\u0423 \u0423\u041c\u0412\u0421 PERSON \u043e\u0431\u043b. ) , acting on information from an unknown source , arrested and detained the applicant on suspicion of murder and robbery . The applicant stated that he had been arrested DATE , on DATE .","On DATE the applicant was questioned . He indicated that he did not need a lawyer .","On DATE the applicant was transported to GPE , where he was placed in the ORG FAC ( \u041c\u0456\u043d\u0441\u044c\u043a\u0438\u0439 \u0440\u0430\u0439\u043e\u043d\u043d\u0438\u0439 \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u0442\u0438\u043c\u0447\u0430\u0441\u043e\u0432\u043e\u0433\u043e \u0442\u0440\u0438\u043c\u0430\u043d\u043d\u044f ) .","On DATE ORG of the LOC of GPE ( ORG \u0440\u0430\u0439\u043e\u043d\u0443 PERSON ) remanded the applicant in custody on the grounds that the applicant could escape and obstruct justice .","On DATE formal charges were brought against the applicant on several counts of murder and attempted murder , attempted murder of police officers on duty , robbery and participation in an organised gang . When questioned on DATE in the presence of his lawyer , the applicant confessed to these charges .","On DATE the ORG of GPE extended the applicant 's pre - trial detention to a maximum of DATE since \u201c it was necessary to carry out a large scale investigation \u201d .","On DATE ORG ( hereinafter - \u201c the ORG \u201d ) decided to extend the term of his pre - trial detention until DATE given \u201c the information on the applicant 's personality \u201d and the gravity of charges .","On DATE the investigator declared the pre - trial investigation complete and granted the applicant and his lawyer access to the case file , which they finished studying on DATE .","On DATE , in the course of a preparatory hearing attended by the applicant and his lawyer , ORG found that the case was not ready for consideration on the merits and decided to remit it to the prosecution for further investigation . It also held that the applicant should remain in pre - trial detention as he could obstruct justice if released .","On DATE , after a hearing attended by the applicant 's lawyer , ORG upheld the decision of DATE on the main points and decided that the applicant should remain in pre - trial detention as he could obstruct justice if released .","On DATE the applicant 's case file arrived from ORG at ORG of the Obolonsky District of GPE ( ORG \u041e\u0431\u043e\u043b\u043e\u043d\u0441\u044c\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0443 PERSON ) .","On DATE ORG examined the prosecution 's application to extend the applicant 's pre - trial detention . The applicant 's lawyer was present at this hearing and lodged an unsuccessful request for the release of her client . ORG decided to extend the applicant 's pre - trial detention for up to a maximum of DATE ( according to the relevant legal provisions , at the material time , the terms of pre - trial detention applied only to the periods when the case was being investigated . The time when the case was in the court , when the accused was studying the case - file etc . were not taken into consideration ) . In doing so , the court referred to the complexity of the case , the seriousness of the crimes of which the applicant was accused , his personality and the fact that he could obstruct justice if released .","On DATE the additional investigations were completed and on the following day the applicant and his lawyer were given access to the case file .","On DATE ORG , at the request of ORG of the Obolonsky District of GPE , extended the applicant 's pre - trial detention to a maximum of DATE . It based this decision on the seriousness of the charges .","On DATE ORG of GPE granted the prosecution 's request to extend the applicant 's pre - trial detention until DATE .","On DATE the applicant 's pre - trial detention was extended by ORG until DATE . It took this decision on the basis of the seriousness of the charges brought against him . In this decision , ORG did not deal with the request of the applicant 's lawyer to release her client on medical grounds .","On DATE ORG of GPE dismissed the prosecution 's application for a further extension of the applicant 's pre - trial detention . ORG held that although the accused had been studying the CARDINAL volumes of case materials since DATE and he still had around CARDINAL volumes to study , there was no indication that the accused had deliberately delayed a trial . According to the court , the case materials had not been properly filed ( in CARDINAL volumes there were no lists of documents and pages were numbered in pencil ) . Therefore , ORG concluded that the investigation authorities had failed to properly present case - file materials and there were no grounds for an extension of the applicant 's detention on remand .","On DATE ORG ( ORG ) asked ORG to lodge an application for an extraordinary review of this decision , considering , inter alia , that such decision would allow \u201c persons who have committed serious offences to avoid isolation from society \u201d .","On DATE the applicant 's case file was sent to ORG for consideration on the merits .","On DATE CARDINAL judges of ORG lodged an application for extraordinary review ( \u043f\u043e\u0434\u0430\u043d\u043d\u044f \u0432 \u043f\u043e\u0440\u044f\u0434\u043a\u0443 \u0432\u0438\u043a\u043b\u044e\u0447\u043d\u043e\u0433\u043e \u043f\u0440\u043e\u0432\u0430\u0434\u0436\u0435\u043d\u043d\u044f ) of the decision of DATE .","In the course of a joint session held on DATE which was attended by the prosecutor but not by the applicant or his lawyer , with judge P. acting as judge - rapporteur , the Criminal and Military Boards ( \u0421\u0443\u0434\u043e\u0432\u0430 \u043f\u0430\u043b\u0430\u0442\u0430 \u0437 \u043a\u0440\u0438\u043c\u0456\u043d\u0430\u043b\u044c\u043d\u0438\u0445 \u0441\u043f\u0440\u0430\u0432 \u0456 PERSON \u043a\u043e\u043b\u0435\u0433\u0456\u044f ) of ORG set aside the decision of CARDINAL DATE on the ground that the reasons given for the dismissal of the prosecution 's request to extend the applicant 's detention were insufficient and irrelevant , and ordered a rehearing . In particular , the court held that the investigating officer could not limit the time for studying the case file .","On DATE ORG granted the prosecution 's application for an extension of the applicant 's pre - trial detention until DATE , as the applicant still needed time to study the case file . The court found no reason to release the applicant .","On an unidentified date the case was transferred to the court for consideration of the charges against the applicant .","On DATE ORG found the applicant guilty as charged and sentenced him to life imprisonment . The applicant 's conviction was based on his initial confession statements , an extensive amount of different evidence and statements from CARDINAL witnesses and QUANTITY victims . CARDINAL of his accomplices were also sentenced to different terms of imprisonment . The applicant appealed .","On DATE the CARDINAL ORG judges , including judge P. , upheld this judgment .","On CARDINAL DATE ORG rejected the applicant 's request for review of his case under the extraordinary review procedure .","DATE the applicant instituted proceedings against the judges of ORG complaining of different procedural shortcomings in the course of consideration of his criminal case . All of his complaints and subsequent appeals were rejected since the applicant should have raised these complaints during the examination of his case and not in a separate set of proceedings .","Before his arrest the applicant suffered from limited mobility caused by a multiple fracture of his left thigh which was the result of a gunshot wound . He had a metallic plate fitted , but this became dislodged and caused a deformation of the bone . As a consequence the applicant 's left leg was QUANTITY shorter than his right and he suffered from pains in his left leg . According to a certificate issued by ORG ( PERSON \u043c\u0456\u0441\u044c\u043a\u0430 \u043b\u0456\u043a\u0430\u0440\u043d\u044f ) on DATE , the applicant received in - patient treatment there DATE and DATE for a left thigh fracture which , according to this certificate , required further surgery and inpatient treatment .","On DATE the applicant was transferred from the police detention facility , where he had been held since DATE , to ORG no . CARDINAL ( ORG \u0441\u043b\u0456\u0434\u0447\u0438\u0439 \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u2116 CARDINAL , ( \u201c GPE no . CARDINAL \u201d ) ) .","Upon his arrival , the applicant was examined by a doctor . The chest X - ray taken on DATE revealed no abnormalities in the applicant 's lungs .","According to the applicant , from the date of his admission and until DATE he was subjected to a high security regime . In particular , he was only allowed outside his cell when handcuffed and accompanied by CARDINAL guards with a prison dog in attendance . He was also held in a metal cage during his lawyer 's visits and interviews by the investigator .","On DATE the applicant was punished for an unspecified offence with DATE confinement in a punishment cell ( \u043a\u0430\u0440\u0446\u0435\u0440 ) . After this punishment he caught a cold , for which , according to the applicant , he received no treatment .","On DATE the applicant 's lawyer requested a surgeon from PERSON no . CARDINAL of GPE of GPE ( ORG \u2116 CARDINAL \u0421\u043e\u043b\u043e\u043c'\u044f\u043d\u0441\u044c\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0443 PERSON ) to give his opinion on the applicant 's orthopaedic problems . The surgeon , having examined the applicant and his medical case file , found that he had sustained a multiple fracture of the left thigh and was suffering pain related to this fracture . He needed further examination by an orthopaedist and in - patient treatment in a specialist hospital . The applicant also required a crutch , orthopaedic shoes and strong painkillers .","In DATE the applicant allegedly started to cough .","On DATE and DATE the applicant was examined by prison doctors and diagnosed as suffering from infiltrative tuberculosis , pleurisy and a compound fracture of the left thigh . On DATE he was moved to the medical wing of GPE no . CARDINAL .","According to the ORG , DATE and DATE the applicant refused to take medication but did not sign any such refusal .","In a letter of CARDINAL DATE the Head of ORG ( PERSON \u0434\u0435\u043f\u0430\u0440\u0442\u0430\u043c\u0435\u043d\u0442 \u0432\u0438\u043a\u043e\u043d\u0430\u043d\u043d\u044f \u043f\u043e\u043a\u0430\u0440\u0430\u043d\u044c ) stated that the applicant had been placed to a punishment cell for DATE and subjected to a high security regime ; he was able to walk without a crutch and had refused medical assistance for his health problems .","According to a report of DATE signed by the medical officer of ORG and by the GPE doctor , the applicant had not complained about coughing DATE . The applicant had special orthopaedic shoes but , according to the surgeon 's conclusion , needed a crutch and surgery . The applicant 's condition had been satisfactory . He had been prescribed various medications but had only taken one of them as he had wanted to receive medications from home .","In DATE ORG ( GPE \u043d\u0430\u0443\u043a\u043e\u0432\u043e-\u0434\u043e\u0441\u043b\u0456\u0434\u043d\u0438\u0439 \u0456\u043d\u0441\u0442\u0438\u0442\u0443\u0442 \u0442\u0440\u0430\u0432\u043c\u0430\u0442\u043e\u043b\u043e\u0433\u0456\u0457 \u0442\u0430 \u043e\u0440\u0442\u043e\u043f\u0435\u0434\u0456\u0457 ) issued a certificate according to which the applicant did not need surgery . The certificate was signed by a senior scientist ( \u0441\u0442\u0430\u0440\u0448\u0438\u0439 \u043d\u0430\u0443\u043a\u043e\u0432\u0438\u0439 \u0441\u043f\u0456\u0432\u0440\u043e\u0431\u0456\u0442\u043d\u0438\u043a ) .","According to the applicant , on DATE he was again punished with DATE detention in a punishment cell . Since the temperature there was lower and humidity higher than in the medical cell , the applicant 's health deteriorated significantly .","The Government submitted that DATE and DATE the applicant again refused to take medication .","In DATE the applicant was examined by the Head of ORG of ORG ( PERSON \u043e\u0440\u0442\u043e\u043f\u0435\u0434\u0456\u0457 PERSON \u043c\u0435\u0434\u0438\u0447\u043d\u043e\u0457 \u0430\u043a\u0430\u0434\u0435\u043c\u0456\u0457 \u043f\u0456\u0441\u043b\u044f\u0434\u0438\u043f\u043b\u043e\u043c\u043d\u043e\u0457 \u043e\u0441\u0432\u0456\u0442\u0438 ) who , in his opinion of DATE , stated that the applicant 's compound fracture of the left thigh required in - patient treatment in a specialist hospital .","In DATE the applicant 's state of health declined . He had CARDINAL X - rays , and medication was administered directly into the pleural cavity . On DATE the applicant was examined by P. , a professor of phthisiology , who prescribed him further treatment .","In DATE the applicant 's tuberculosis was aggravated by a pyopneumothorax ( accumulation of pus in the pleural cavity ) on account of which he was transferred to ORG and GPE ( NORP \u0444\u0442\u0456\u0437\u0456\u0430\u0442\u0440\u0456\u0457 \u0442\u0430 \u043f\u0443\u043b\u044c\u043c\u043e\u043d\u043e\u043b\u043e\u0433\u0456\u0457 ( hereinafter - \u201c the Institute \u201d ) ) on DATE .","On DATE the administration of GPE no . CARDINAL asked the investigator in charge of the applicant 's case to consider the possibility of the releasing the applicant , referring , inter alia , to the fact that his condition required a lengthy period of treatment in a specialist hospital .","On DATE the Prosecutor of the Obolonskiy District of GPE replied that the applicant 's detention had been extended by ORG and that there were no reasons to change this decision .","On DATE the applicant was transferred from the Institute to ORG no . CARDINAL . According to the applicant , because his treatment at the ORG had not been finished , he had still had tubes in his lungs for draining pus and further antibiotic treatment when he was transferred . He had received no such treatment in the GPE and since the place where the tubes were inserted had become infected , the applicant had removed them himself .","According to a letter , written in reply to a request for information made by the applicant 's lawyer on DATE and signed by the ORG 's head doctor , the head of the relevant department and the treating doctor at the ORG , the applicant 's treatment had consisted of pleural drainage and the administration of antibiotics , carried out in parallel with intensive anti - tuberculosis treatment . It was necessary to continue this treatment in future . The doctors were aware of the applicant 's orthopaedic problems , which aggravated his general condition , but this had not affected his treatment for tuberculosis .","On DATE the applicant 's lawyer requested that medical evidence be obtained in order to assess the applicant 's fitness for detention in GPE no . CARDINAL .","In a report of DATE a panel of CARDINAL experts from ORG ( LOC \u0441\u0443\u0434\u043e\u0432\u043e-\u043c\u0435\u0434\u0438\u0447\u043d\u043e\u0457 \u0435\u043a\u0441\u043f\u0435\u0440\u0442\u0438\u0437\u0438 ORG \u043e\u0445\u043e\u0440\u043e\u043d\u0438 \u0437\u0434\u043e\u0440\u043e\u0432'\u044f \u0442\u0430 \u043c\u0435\u0434\u0438\u0447\u043d\u043e\u0433\u043e \u0437\u0430\u0431\u0435\u0437\u043f\u0435\u0447\u0435\u043d\u043d\u044f PERSON \u043c\u0456\u0441\u044c\u043a\u043e\u0457 \u0434\u0435\u0440\u0436\u0430\u0432\u043d\u043e\u0457 \u0430\u0434\u043c\u0456\u043d\u0456\u0441\u0442\u0440\u0430\u0446\u0456\u0457 ) established that the applicant had sustained a compound fracture of the left thigh which had resulted in a substantial deformation of his left leg , causing limited mobility and considerable pain . The continued failure of the prison authorities to address this condition and his consequent reduced immunity may have been the reason why the applicant had contracted tuberculosis . The experts found that the applicant required specialist in - patient treatment , which could not be provided in the medical unit of GPE no . CARDINAL .","On DATE the doctor of the Traumatology and ORG of ORG ( NORP \u0442\u0440\u0430\u0432\u043c\u0430\u0442\u043e\u043b\u043e\u0433\u0456\u0457 \u0442\u0430 \u043e\u0440\u0442\u043e\u043f\u0435\u0434\u0456\u0457 GPE \u043c\u0435\u0434\u0438\u0447\u043d\u0438\u0445 \u043d\u0430\u0443\u043a GPE ) concluded that the applicant \u201c could not have surgery on his left thigh \u201d .","DATE and DATE the applicant had CARDINAL chest Xrays and was twice examined by professor of phthisiology P.","On DATE , following an enquiry from the court , the PERSON administration issued a certificate stating that the applicant was suffering from chronic tuberculosis and other diseases but that his state of health was satisfactory and he could take part in court hearings .","On DATE the applicant instituted proceedings in the ORG of GPE against the head of GPE no . CARDINAL and the head of its medical ward seeking his transfer to a specialised hospital and complaining that the information provided in the certificate of CARDINAL DATE had not been true .","On DATE the court rejected the applicant 's complaints . In particular , the court found that the certificate in question had been accepted by ORG and included in the applicant 's criminal case file , therefore , there were no reasons to question its veracity . The court further found that the applicant had received the necessary medical treatment in the GPE . This decision was not appealed against by the applicant .","According to the ORG , the applicant refused to undergo medical tests on CARDINAL occasions DATE . The relevant refusals were signed by the GPE doctors but not by the applicant .","On DATE the applicant was diagnosed with pleuropneumonia cirrhosis of the right lung , having been cured of cirrhotic tuberculosis .","On DATE , after the applicant 's conviction had been upheld on appeal by ORG , he was transferred from GPE no . CARDINAL to ORG no . CARDINAL ( \u0417\u0430\u043c\u043a\u043e\u0432\u0430 \u0412\u041a-CARDINAL ) to serve his prison sentence .","On an unspecified date the applicant was further transferred to ORG no . CARDINAL ( FAC ) .","On DATE the applicant underwent surgery on his left leg .","According to the documents further submitted by the applicant 's lawyers ( letters from ORG for ORG and from ORG no . CARDINAL ) , he is still suffering from fibrocaseous tuberculosis of the right lung .","The relevant provisions of LAW read as follows :","\u201c Human and citizens ' rights and freedoms are protected by the courts .","Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of ORG authorities , local authorities , officials and officers . ...","Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . \u201d","DATE . In accordance with LAW , decisions of the judge of ORG of GPE on detention on remand are not subject to appeal .","Other relevant provisions of the Code are summarised in the judgments of GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 DATE ( extracts ) ) , and PERSON and PERSON v. GPE ( nos . CARDINAL and GPE , \u00a7 MONEY , DATE ) ) .","On DATE changes were introduced to Articles CARDINAL and CARDINAL of the Code . According to these new rules , access to the case file should be provided to the detained defendant DATE before the expiry of the authorised term of detention . If DATE proves insufficient for the defendant to familiarise him or herself with the case file , the investigator can lodge an application with the relevant court of appeal , pre - approved by ORG , for an extension of the term of the defendant 's detention . The time in which the defendant and his or her lawyer familiarise themselves with the case file can not be limited .","In so far as tuberculosis is concerned , ORG report on its visit to GPE in DATE ( ORG ( DATE ) CARDINAL ) reads as follows :","\u201c CARDINAL . The delegation 's observations in relation to tuberculosis are a source of great concern . There were often considerable delays in screening for tuberculosis . [ ... ]","Further , it recommends that the NORP authorities ensure :","- the early and effective screening for tuberculosis of all persons detained by the ORG ;","- the provision of uninterrupted treatment for persons already receiving anti - tuberculosis drugs at the time of apprehension . \u201d","Other relevant international reports and other materials concerning the treatment of tuberculosis in NORP penitentiary establishments can be found in the judgment of DATE in the case of ORG v. GPE , ( no . GPE , \u00a7 \u00a7 CARDINAL - CARDINAL ) and in the judgment of CARDINAL DATE in the case of GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 CARDINAL ) ."],"violated_articles":["13","3","5"],"violated_paragraphs":["5-1","5-3"],"violated_bulletpoints":[],"non_violated_articles":["13","6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105453","languageisocode":"ENG","respondent":"ROU","branch":"COMMITTEE","date":2011,"docname":"CASE OF VELCESCU AND OTHERS v. ROMANIA","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Ineta Ziemele;J\u00e1n \u0160ikuta;Kristina Pardalos","text":["The details as to the subject matter of the cases , reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58072","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1996,"docname":"CASE OF CALOGERO DIANA v. ITALY","importance":3,"conclusion":"Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed","judges":"C. Russo;R. Pekkanen","text":["On DATE Mr PERSON was arrested on suspicion of having taken part in the activities of the terrorist organisation known as ORG \" and immediately taken into custody . He was convicted on TIME occasions DATE and DATE , the heaviest sentences he received being those imposed in ORG on DATE ( DATE imprisonment and a fine of MONEY ) and by ORG on DATE ( life imprisonment ) . Since DATE the applicant , pursuant to an aggregation of sentences ordered on DATE by ORG of Cagliari , has been serving the sentence of life imprisonment and has at the same time been , among other things , permanently disqualified from holding public office , stripped of his civic rights for the duration of his prison sentence and removed from parental control .","On DATE CARDINAL the judge responsible for the execution of sentences ( magistrato di sorveglianza ) in GPE di GPE decided that PERSON correspondence - the applicant then being in custody in ORG - should be subject to censorship under CARDINAL of PERSON no . CARDINAL of DATE ( see paragraph CARDINAL below ) . The grounds given for the decision were : the nature of the applicant 's offences ; the fact that he belonged to a special category of prisoner whose attitude was CARDINAL of total opposition to the institutions of the ORG ; his conduct ; and his rejection of prison and refusal of any cooperation with prison staff .","On an unspecified date the applicant was transferred to ORG .","On DATE the judge responsible for the execution of sentences at ORG ordered that all the applicant 's correspondence , both incoming and outgoing , should be subject to censorship for DATE from DATE , the date on which the prisoner was notified of the decision . He considered that the reasons which had prompted his counterpart in GPE di GPE to take such a measure ( see paragraph CARDINAL above ) remained valid and that there was a continuing danger that the applicant would use his correspondence to commit offences or to prejudice public order or safety . At that time Mr PERSON already had CARDINAL convictions , and CARDINAL other sets of criminal proceedings were pending against him . The first of these , in ORG of Appeal , related to charges of kidnapping , manufacture , possessing and carrying explosives , aggravated destruction of property and resisting arrest ; they ended in a judgment of CARDINAL DATE , which became final on DATE and in which the applicant was convicted and sentenced to DATE imprisonment and permanently disqualified from holding public office . The second set of proceedings , which were pending before the Novara ORG ( pretore ) , originated in a prosecution brought following an escape by the applicant on DATE ; PERSON had been recaptured on DATE .","It is not contested that the following letters were inspected :","( a ) a letter of CARDINAL DATE from the applicant to his lawyer ;","( b ) a registered letter of DATE to the applicant from his lawyer ;","( c ) a letter of DATE from the applicant to his lawyer ;","( d ) a letter of DATE from the applicant to his lawyer ;","( e ) a registered letter of CARDINAL DATE to the applicant from his lawyer , enclosing a form for lodging an application with the ORG ; and","( f ) a letter of CARDINAL DATE from the applicant to his lawyer , enclosing the Commission application form signed by the applicant on DATE , each page bearing the censor 's stamp .","Mr PERSON made several applications challenging the monitoring of his correspondence . In particular , he lodged an application ( richiesta di riesame ) with the PERSON judge responsible for the execution of sentences to reconsider his decision of DATE ( see paragraph CARDINAL above ) . The judge refused the application on DATE . On CARDINAL DATE the applicant sent a copy of the judge 's decisions to his lawyer . On DATE the lawyer sought to have the censorship of his correspondence with the applicant ended and the order of CARDINAL DATE ( see paragraph CARDINAL above ) rescinded . Relying on Articles CARDINAL para . CARDINAL ( b ) and CARDINAL of the Convention ( article CARDINAL - CARDINAL-b , article CARDINAL) , he argued , among other things , that the censorship was a manifest violation of the rights of the defence and could not be ordered on the basis of a similar decision taken by another judge DATE or on the basis of considerations relating to the applicant 's conduct in another prison , especially as the applicant was receiving more lenient treatment in FAC .","On DATE the judge responsible for the execution of sentences held that the measure in issue was wholly justified , having regard to the arguments already set out in his decision of CARDINAL DATE , to disciplinary reports on PERSON and to the fact that while in custody in ORG the applicant had been a member of a group of prisoners all of whom belonged to extreme - left - wing subversive movements . He nevertheless decided to adjourn the lawyer 's application and submit a question concerning the interpretation of the relevant law to ORG ( Direzione generale degli Istituti di prevenzione e pena ) , relating to whether the monitoring of the applicant 's correspondence with his lawyer was lawful , given that CARDINAL sets of criminal proceedings against the applicant were still pending at the time . The applicant 's correspondence nevertheless continued to be monitored while a reply from the relevant authority was awaited .","On CARDINAL DATE the judge , in reply to a letter sent him by the defence lawyer on DATE , again confirmed his decision of CARDINAL DATE .","ORG replied on DATE . In its opinion , censorship of a prisoner 's correspondence , provided that all the legal requirements were satisfied , covered all his correspondence , including that with his lawyer , and could not be regarded as infringing the rights of the defence , which were guaranteed by LAW . The confidentiality of communications between a prisoner charged with a criminal offence and his lawyer was preserved through the possibility of communication during private conversations inside the prison . On DATE the judge responsible for the execution of sentences refused the lawyer 's application of CARDINAL DATE .","The measure in issue ended automatically on DATE , on the expiry of the period specified in the decision ( see paragraph CARDINAL above ) .","On DATE the applicant was transferred to the special prison at ORG ) . Since DATE he has enjoyed a semi - custodial regime .","LAW no . CARDINAL of DATE ( \" Law no . CARDINAL \" ) , as amended by LAW no . CARDINAL of DATE , provides that power in the matter of censorship of prisoners ' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter . The judge may order censorship of a prisoner 's correspondence in a reasoned decision ; this provision , however , does not specify the cases in which such a decision may be taken .","The censorship of which the applicant complains consists , in particular , in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him , and in the stamping of letters for the purpose of showing that they have been inspected . Censorship can not extend to deleting words or sentences , but the judicial authority can order that CARDINAL or more letters shall not be handed over ; in that case , the prisoner must immediately be informed of the fact . This latter measure can also be ordered temporarily by the prison governor , who must , however , notify the judicial authority of his action .","LAW forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer , provided that the correspondence is recognisable as such and unless the judicial authority has well - founded reasons to believe that the correspondence constitutes the substance of the offence . Similarly , by LAW transitional provisions of LAW , the rules on the censorship of a prisoner 's correspondence that are laid down in PERSON no . CARDINAL and Presidential Decree no . CARDINAL of DATE do not apply to correspondence between the prisoner and his lawyer . It follows , among other things , that the only authority that may order censorship of that correspondence , and then solely in the case mentioned above , is the judge or court dealing with the case .","ORG has held on several occasions that the monitoring of a prisoner 's correspondence is an administrative act and has also stated that NORP law does not provide any remedies in respect of it ; in particular , censorship can not be the subject of an appeal on points of law , since it does not affect the prisoner 's personal freedom ( Court of Cassation , judgments ORG . CARDINAL and DATE of DATE and CARDINAL DATE respectively ) ."],"violated_articles":["13","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86181","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"ALDERSON v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the applicant received a letter from ORG asking him to provide information about who was driving his car on DATE when it failed to comply with the speed limit . The letter also stated that the police intended to prosecute the driver and that failing to supply information as to the driver was a criminal offence under section CARDINAL of LAW DATE .","The applicant replied that he was responding under duress and that he was the driver .","On DATE , before ORG , the applicant pleaded not guilty to the speeding offence and the prosecution sought to rely on his admission . The Magistrates rejected the applicant \u2019s arguments that the use of the confession violated the Convention . He was convicted of speeding and fined GBP CARDINAL , with GBP CARDINAL costs and CARDINAL penalty points endorsed on his licence .","The relevant domestic law and practice is set out in O\u2019Halloran and PERSON the GPE [ ORG ] , ORG . ORG , \u00a7 \u00a7 DATE , ORG DATE ..."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102788","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2010,"docname":"SZYC v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Vincent A. De Gaetano","text":["The applicant , Mr PERSON , is a NORP citizen who was born in DATE and is currently detained in FAC . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr J. PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was imprisoned in FAC . Subsequently , he was many times transferred between prisons in W\u0142odawa , PERSON , PERSON , PERSON and PERSON .","On DATE the applicant was released from ORG as he had been granted a leave on compassionate grounds .","On DATE the applicant resumed serving his prison sentence . He is currently detained in FAC .","The applicant submitted that practically all prisons in which he had been detained from DATE or DATE onwards had been overcrowded . By way of an example , he submitted that in DATE he had been detained in a prison cell with a living space of TIME . CARDINAL m\u00b2 per inmate . He moreover asserted that on CARDINAL occasion , for DATE , he was forced to sleep on a mattress on the cell floor . The overcrowding had resulted in tension and conflict among the detainees as well as in the progressive deterioration of the prison \u2019s sanitary conditions .","The applicant further submitted that from DATE and over DATE , he had been detained together with smokers , despite his being a non - smoker . The cells in which he had been detained had no proper ventilation .","As regards the applicant \u2019s detention in FAC , the Government pointed out that prior to DATE the prison authorities had not been storing information as to the exact number of prisoners detained in each cell on specific dates . They further submitted that , to their general knowledge , the problem of overcrowding had not existed in FAC prior to DATE . The Government acknowledged that from DATE until DATE the applicant had been temporarily placed in cells with a living space ranging from QUANTITY per prisoner . The total time in which the applicant was imprisoned in cells of CARDINAL m\u00b2 per prisoner amounted to DATE .","The Government explained that during his entire stay in FAC the applicant had been detained only in non - smoking cells .","As for the applicant \u2019s detention in prisons in PERSON and in PERSON , the Government acknowledged that both these penitentiary centres had been permanently overcrowded at the relevant time . The applicant had been imprisoned in cells of CARDINAL m\u00b2 per prisoner for an overall period of CARDINAL days . On CARDINAL occasion , due to lack of space , the applicant was required to sleep on a double mattress on the cell floor for DATE . During an unspecified time the applicant was detained together with smokers , but he never complained to the authorities about this fact .","In FAC the applicant was incarcerated in cells with a living space ranging from QUANTITY per prisoner . The total period during which he was detained in cells of CARDINAL m\u00b2 per prisoner amounted to DATE . The ORG explained that in FAC the applicant had been serving his sentence in a semi - open ward where cells remained open during DATE . Moreover , from DATE to DATE DATE he had been allowed to take a bath on a DATE basis . Lastly , they submitted that , on CARDINAL occasions , the applicant had been granted a temporary , accompanied release from prison . He was also granted leave to attend his father \u2019s funeral without being accompanied by a prison officer .","More recently , the applicant submitted that the living conditions in FAC were inadequate and that he was detained together with CARDINAL other inmates in cell no . CARDINAL which was designed for CARDINAL persons .","The applicant informed the ORG that on unspecified dates in DATE and DATE he brought several civil actions against prisons in PERSON , PERSON and PERSON for the infringement of his personal rights . He briefly informed the ORG that his claims had been unsuccessful but failed to provide details about the exact course or the outcome of any of the proceedings .","The Government submitted that the applicant \u2019s civil action against ORG had been dismissed by a decision of the first - instance court against which the applicant did not appeal . CARDINAL other civil actions which the applicant had attempted to institute before ORG ( PERSON ) were all rejected for failure to comply with the prescribed procedural requirements .","The Government further submitted that the applicant had instituted another civil action before ORG ( PERSON ) . These proceedings were currently pending . The applicant did not contest the foregoing statements .","A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in GPE and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the ORG \u2019s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL ) on DATE ( see \u00a7 \u00a7 DATE and \u00a7 \u00a7 CARDINAL respectively ) . More recent developments are described in the ORG \u2019s decision in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL ) on CARDINAL DATE ( see LAW \u00a7 DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95756","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"ROGOZINSKI AND OTHERS v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicants , Mr PERSON , Mr PERSON and Mr PERSON are NORP nationals who were born in DATE respectively and live in PERSON . They were represented before the ORG by PERSON , a lawyer practising in ORG . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON Wo\u0142\u0105siewicz .","In DATE the applicants agreed with the local branch of the ORG - run electricity supply company ( \u201c the company \u201d ) that they would finance and build on their land an electricity installation connecting their properties to the general electricity network operated by that company ( high voltage transformer and cables ) . They had such an installation built and financed it from their own resources , paying PLZ CARDINAL in pre - denomination currency \u2013 the equivalent of ORG ( approximately EUR CARDINAL DATE ) .","In DATE , when the installation was ready , a disagreement arose between the applicants and the electricity supply company as to the reimbursement of the costs the applicants had incurred . The company refused to reimburse the costs . As a result , the installation became operational and the company took it over , connected it to the electricity network and started normal exploitation . In DATE the applicants refused to sign documents confirming that ownership of the high - voltage transformer , the essential part of the installation , had been taken over by the company ex lege . They only signed documents confirming the transfer of ownership of the cables to the company . In DATE they submitted a letter to the company informing it that they refused to acknowledge the transfer of ownership .","In DATE , from DATE at the earliest , the company connected CARDINAL new electricity users to the network built by the applicants ( after the applicants had sold their land to these persons on unspecified dates ) , charged each of them for this service and for a part of the costs borne in connection with building the installation and operated the service normally , providing electricity to them at normal prices , using the installation built by the applicants .","The applicants apparently repeatedly tried to obtain reimbursement of the costs they had incurred in the amount of ORG CARDINAL , but received oral refusals . In DATE the applicants requested the company in writing to reimburse the costs of the construction they had borne in DATE as well as the amounts the company had charged the CARDINAL users for connecting them to the network . They claimed ORG CARDINAL ( approximately ORG CARDINAL DATE ) . The company refused , stating that ownership of the network had been transferred to it in DATE .","In a letter of DATE the ORG , in reply to the ORG request to intervene in their case , informed them that their case was of a civil - law character and could , as such , be pursued before the civil courts . The ORG also summarised a judgment of ORG of DATE ( see Relevant domestic law below ) and emphasised that after this judgment had been given , ORG had repeatedly stated in its judgments that the practice of the ORG - run electricity supply company amounted to an abuse of a dominant market position . The applicants were also informed that there had been judgments of ORG to the effect that in cases in which contracts concluded as a result of an abuse of a dominant market position were declared null and void , wronged consumers could claim unjust enrichment under the provisions of LAW on liability in tort .","In DATE the applicants lodged an action against the company with ORG . They sought payment of ORG CARDINAL ( EUR CARDINAL ) , seeking a judgment on the principle of their claim , and argued that they had never given their agreement to the company taking over ownership and using the installation which they had built and financed themselves .","On DATE the court dismissed the claim . It established that the applicants had built the installation and financed the building works from their own resources on the basis of technical documentation given to them by the electricity supply company . Upon completion of the installation they had refused to sign a document confirming the transfer of ownership of the main part of the installation to the company .","The court further noted that at the relevant time , the DATE LAW had been in force . The principles governing the settlement of any accounts between the ORG - run electricity supply company and landowners who had financed the construction of installations necessary to connect their properties to the electricity network were provided for in a DATE Ordinance . LAW provided that all electricity installations were the property of the ORG . Consequently , this LAW allowed for all the costs arising from the construction of electricity installations to be borne by individual owners , without any corresponding obligation on the part of the electricity company to reimburse them . Hence , the applicants were to bear these costs . At the time of the construction they had been aware of this as the position of the company had been set out in technical documents which they had received from the company .","The applicants appealed , submitting that the defendant company had enriched itself at their expense since it had acquired ownership of the installation and had been exploiting it without having to compensate them in return .","The appellate court upheld the judgment by a decision of DATE . It observed that the first - instance court had correctly found that the applicants had been aware that under the DATE Ordinance the connection of the installation to the electricity network had depended on the transfer of ownership of the installation to the company . However , the lower court had erred in law in that it had overlooked a judgment of ORG given in DATE . In that judgment that court had observed that the DATE Ordinance could no longer be applied after LAW had entered into force , because it had been passed ultra vires on the basis of the DATE LAW . Hence , the DATE Ordinance could not constitute the legal basis for the automatic transfer of ownership of the electricity installation to the electricity company . ORG had indicated that the provisions of LAW should apply to such a situation .","In that connection , ORG observed that under LAW , electricity supply facilities did not constitute parts of land or a building if they were a part of an enterprise , including an electricity supply enterprise . Hence , such installations were not to be considered part of the applicants\u2019 property and were to become the property of the defendant company .","On the other hand , the provisions of LAW on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the applicants\u2019 situation . This was because at the time when the applicants had borne the expenditure for the construction of the electricity installation , they had been the owners of the properties concerned . Hence , they were not users within the meaning of the relevant provisions of LAW : they had incurred expenditure on their own property , not somebody else \u2019s and , consequently , had no claim to reimbursement .","The court finally observed that the applicants had known , when they incurred the expenditure for the construction of the electricity supply installation in DATE , that under the laws applicable at that time ownership of the installation would eventually be transferred to the electricity supply company . Hence , the company could not be said to have obtained unjust enrichment at the expense of the applicants . Further , it was the company which was obliged to operate and maintain these installations . Accordingly , it was fair that the company should take over their ownership .","On DATE LAW entered into force . Article CARDINAL introduced the legal protection of private ownership . It reads :","\u201c CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .","Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .","The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right . \u201d","Under LAW , public authorities shall protect consumers , customers , lessors or lessees against activities threatening their health , privacy and safety , as well as against dishonest market practices . The scope of such protection shall be specified by statute .","In DATE the ORG requested ORG to issue a binding interpretation of section CARDINAL of the DATE LAW in so far as it empowered ORG to issue ordinances concerning the technical conditions on which individually built and financed electricity supply installations could be connected to the general electricity supply network . At that time , the LAW adopted in DATE was in force .","In a resolution of CARDINAL DATE ( W CARDINAL\/CARDINAL ) ORG observed that the DATE Ordinance , including LAW passed on the basis of LAW , could no longer be applied after LAW had entered into force . It further noted that in any event the ordinance had been passed ultra vires on the basis of the DATE LAW .","The court observed further that relations between the electricity supply company and owners of property were to be considered in the light of LAW . As to the ownership of electricity supply installations situated on individual properties , LAW made it clear that they did not constitute a part of such properties if they were a part of an enterprise , including an electricity supply enterprise . Hence , such installations were to become the property of that enterprise .","Further , the provisions of LAW on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the situation of owners who had financed the construction of electricity supply installations . This was so because at the time of the financing and construction of such installations the owners were constructing them on their own properties . Hence , they could not have recourse to claims normally available to persons in possession against owners .","Lastly , the court considered that the civil - law provisions on unjust enrichment could not be applied to the settlement of accounts between the owners and the electricity supply company . Owners who built and financed electricity supply installations on their properties knew and accepted in advance that after these installations were connected to the general electricity network they were to become the property of the company .","The court was of the view that such an automatic transfer of ownership to the electricity supply company could not be said to run counter to \u201c principles of community life \u201d within the meaning of LAW . This was because the connection of the installations to the electricity supply network was in the interest of owners . Moreover , after the electricity supply company had become the owner of the installations , it was obliged to operate them and to maintain them in proper technical condition ; hence the fact that it had taken them over without being obliged to make any reimbursement was compatible with these principles .","In a number of judgments given after DATE ORG followed the reasoning based on the judgment of ORG and dismissed claims for reimbursement of costs borne by owners to finance electricity supply installations , holding that upon their connection to the network the installation had become the property of the electricity supply company ( I ORG CARDINAL\/CARDINAL , DATE , I CKN CARDINAL\/CARDINAL , DATE ; resolution III CZP DATE , CARDINAL DATE ) .","However , in a judgment of DATE ( II CKN CARDINAL\/CARDINAL ) ORG held that if the recipient of the electricity had financed elements of the installation necessary for the property to be connected to the network , he or she was entitled , on the basis of the provisions of civil law on unjust enrichment , to seek from the electricity company a reimbursement of the costs incurred .","Subsequently , in judgments given in DATE and DATE , ORG held that Article CARDINAL of LAW could not be interpreted to mean that the physical connection of such an installation , financed by a private party , to the electricity supply network automatically entailed a transfer of ownership of that installation to the electricity company ( ORG CARDINAL , CARDINAL DATE ; PERSON CARDINAL\/CARDINAL , DATE ; III SK CARDINAL , CARDINAL DATE ; PERSON CARDINAL\/CARDINAL , DATE ) .","On DATE ORG gave a resolution ( III CZP CARDINAL\/CARDINAL ) purporting to clarify the discrepancies which had arisen in the case - law concerning the relationship between the electricity supply company and owners who had financed electricity supply installations situated on their land . It reiterated the history of the relevant case - law and observed that a transfer of ownership could only originate in legal events , not in factual ones . It observed that the only function of Article CARDINAL of LAW was to establish the limits of operation of the principle superficies solo cedit , not to determine the financial relationship between the owner of the installation and the owner of the electricity network . Hence , the mere fact that an installation was connected to the network operated by the electricity supply company was not , of itself , sufficient to conclude that a transfer of ownership to the company automatically followed . The issue of ownership and of any settlement of accounts between the company and individual owners should be determined by contract , specifically addressing related issues .","In DATE LAW was repealed and replaced by a new LAW . No provisions producing the same effect as LAW are currently in force . The question of ownership of electricity supply installations and of the settlement of accounts arising out of the building and financing by private parties of electricity supply installations is now left to the parties , to be freely negotiated between the owners and the ORG - run electricity supply company .","Article CARDINAL of the Civil Code provides that water , electricity , power and similar installations do not constitute a part of land or buildings if they are a part of an enterprise .","Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family \u2019s standard of living ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58227","languageisocode":"ENG","respondent":"GRC","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF IATRIDIS v. GREECE","importance":1,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (six month period);Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Just satisfaction reserved","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["In DATE ORG inherited DATE of a tract of land known as the \u201c PERSON estate \u201d from his adoptive father . In DATE ORG \u2019s adoptive mother sold him DATE of the \u201c GPE estate \u201d , which she had inherited from her husband . The contract of sale gave the surface area of the \u201c PERSON estate \u201d as QUANTITY . m.","In DATE , having obtained the necessary permit from the authorities , ORG built an open - air cinema \u2013 the \u201c NORP \u201d cinema DATE on part of this land .","In DATE the Minister of Agriculture refused to recognise ORG as owner of the whole \u201c PERSON estate \u201d , taking the view that ORG \u2019s adoptive father had owned only part of the land , namely an area of CARDINAL sq . m , which did not include the part on which the \u201c NORP \u201d cinema had later been built . The rest of the area was public forest and was not included in the title deeds submitted by ORG Thereupon K.N applied to ORG to set aside the decision of the Minister of Agriculture but his application was dismissed . On DATE a royal decree designated the area in dispute as land to be reafforested . ORG applied to ORG to set aside the royal decree but the court dismissed the application , holding that the disputed area was forest land belonging to the ORG .","By means of ORG decisions of CARDINAL DATE and DATE , which were published in ORG ) and entered in the NORP municipal register , the ORG transferred a QUANTITY . m area of the \u201c PERSON estate \u201d to ORG . This area did not include the land on which the \u201c NORP \u201d cinema had been built .","On DATE a royal decree ordering the reafforestation of land in NORP was promulgated . According to the Government , this decree covered an unspecified part of the \u201c PERSON estate \u201d . On DATE the decree was amended by a further decree , which was published in ORG .","On DATE ORG brought an action against ORG to establish his title to the land which had been transferred to it . The ORG , as transferor , intervened in the proceedings in favour of the ORG . This action was entered in the NORP mortgage register . In the margin of the relevant page , the subsequent judgments of ORG ( no . CARDINAL\/CARDINAL ) and ORG ( no . DATE see paragraph CARDINAL below ) dismissing the action and acknowledging the ORG \u2019s ownership of the disputed area were noted .","NORP In DATE ORG died and his heirs received an inheritance - tax demand in respect of the land on which the cinema had been built . The ORG took a mortgage on the land as security for the tax debt . The mortgage was paid off in DATE .","K.N. \u2019s heirs continued the proceedings brought on DATE . On DATE ORG held that the tract of land transferred to ORG belonged to the ORG . In the reasons for its judgment the court agreed with the Minister of Agriculture , holding that ORG \u2019s adoptive father had owned only a part of the \u201c PERSON estate \u201d , which had not included the part on which the \u201c NORP \u201d cinema had been built or the part which had been transferred to the ORG . ORG based this conclusion on , inter alia , the fact that in DATE the \u201c PERSON estate \u201d had been entered in the national forest register as forest land and that the ORG had since , in good faith , had possession and use of it as owner .","Following a decision taken by the Deputy Minister of Finance on DATE , part of the \u201c PERSON estate \u201d , including the part on which the cinema had been built , was entered in the register of ORG property on DATE . On DATE this fact was noted in the NORP mortgage register . In DATE ORG \u2019s heirs brought proceedings to establish their title to the land that had been entered in the register of ORG property . In DATE ORG Instance dismissed their application on the ground that on DATE ORG had held that ORG \u2019s adoptive father had owned only a part of the \u201c PERSON estate \u201d , covering an area of CARDINAL sq . m. K.N. \u2019s heirs appealed against that decision .","On DATE ORG held that in its judgment of DATE it had resolved only the matter of ownership of the CARDINAL sq . m which had been transferred to ORG . The other dicta in the grounds of the judgment were not binding on ORG \u2019s heirs . ORG consequently set aside the DATE decision of ORG and ordered that court to deal with the merits of the case .","On DATE ORG \u2019s heirs applied to ORG at ORG for interim measures against the ORG and ORG . ORG refused their application on an unspecified date . ORG \u2019s heirs appealed against this decision . On DATE Deputy State Counsel at ORG dismissed their appeal .","In DATE ORG \u2019s heirs leased the \u201c NORP \u201d open - air cinema to the applicant , who completely restored it .","On DATE the LOC prefecture informed the applicant that with effect from DATE the land on which the cinema had been built was considered to be ORG property , and that his retention of it was wrongful . The ORG would consequently be claiming compensation from him in accordance with LAW of DATE , without prejudice to its right to evict him under PERSON no . DATE on the protection of ORG land .","On DATE ORG ( PERSON \u03c4\u03bf\u03c5 PERSON ) assigned the cinema to ORG . On CARDINAL DATE the LOC prefecture notified the applicant of this and ordered him to vacate the cinema within DATE , failing which Law no . DATE would be applied .","On DATE ORG ( PERSON ) of the LOC prefecture ordered the applicant to be evicted , under PERSON no . DATE as amended by PERSON no . CARDINAL\/CARDINAL . The order was \u201c served \u201d on the applicant on DATE by being posted on the door of the cinema . The following day , when the members of the Bar were on strike and the applicant was absent , officials from ORG executed the order , forcing an entry into the cinema . An inventory was drawn up of a number of items of movable property belonging to the applicant ( projectors , chairs , billboards and bar equipment ) . A Mr PERSON , who was professionally connected with the applicant but was not acting as his representative , signed the inventory and asked the ORG officials to store the goods .","The applicant challenged the eviction order in ORG , which dealt with the matter under summary procedure and found for the ORG . The applicant appealed to ORG sitting with a single judge , which on DATE , having heard the appeal under summary procedure , quashed the eviction order . The court ruled that ORG could issue an eviction order only if the property in question belonged to the ORG , if the ORG \u2019s title to the property was not in dispute , and if the property was being unjustifiably occupied by a third party .","The court held , further , that these conditions had not been satisfied in the case before it , since the applicant had established the following facts with a fair degree of certainty : proceedings were pending before the courts in an action brought in a dispute between ORG \u2019s heirs and the ORG over the land on which the cinema had been built ; ORG \u2019s heirs had considered themselves to be the owners of the land and the cinema for a very long time and had exercised all the rights and performed all the duties associated with ownership ; and , lastly , the applicant had occupied the cinema under a lease DATE .","Following that decision , the applicant made several approaches to the appropriate authorities to challenge the continued occupation of the cinema by ORG . On DATE ORG stated that , since the eviction order had been quashed , the land should be returned to the applicant and the assignment of the cinema to ORG revoked . However , if the ORG insisted on retaining the cinema , the matter of who was to compensate the applicant would have to be determined in accordance with the law on business tenancies .","On DATE ORG ( PERSON \u03c4\u03bf\u03c5 GPE ) , in answer to a question put to it by ORG , expressed the view that the cinema had to be returned to the applicant . The applicant \u2019s claims in respect of the loss he had sustained owing to the eviction could be entertained only if he applied to ORG or brought proceedings . Furthermore , the ORG could assert its claim to be the owner of the land by bringing an action against ORG \u2019s heirs or by expediting the proceedings in the litigation between it and them , which had been pending before the courts since DATE .","On DATE the applicant applied to ORG to have the cinema returned to him .","On DATE the applicant sued the ORG and ORG in tort in ORG for the loss he had sustained as a result of the failure to return the cinema to him . He claimed compensation in the amount of MONEY ( ORG ) , plus interest for loss of income from DATE and for the loss of his business equipment .","On DATE the applicant applied to the mayor of NORP to have the cinema returned to him . On CARDINAL DATE he lodged a criminal complaint against the mayor . On an unspecified date he also lodged a criminal complaint against the chairman of ORG .","On DATE the applicant filed an application in ORG for registration of a mortgage against ORG as security for lost income amounting to LAW . The court dismissed the application on the ground that there was no obligation to return the property , seeing that no application to that end had been made to the court and that there had been no final court decision in the matter .","On DATE ORG , following a further request from the applicant , recommended that the assignment of the cinema to ORG should be revoked and the cinema returned to the applicant , who was to be reinstated as tenant by ORG . That recommendation had to be approved by ORG pursuant to LAW no . CARDINAL\/CARDINAL .","The applicant , who had not been notified of the recommendation , applied to the Minister of Finance on DATE . On DATE he asked ORG to order interim measures against the mayor of NORP in the tort proceedings . On DATE he applied to the Minister of Finance again .","On DATE ORG held that there were no grounds for ordering interim measures , since there could be no liability on the part of the mayor . On DATE , following the intervention of ORG , the applicant was notified of ORG decision of DATE . On CARDINAL DATE the applicant requested the Deputy Minister of Finance to approve that decision .","On DATE ORG expressed the view that the cinema should not be returned to the applicant , for the following reasons . Although ORG had set aside the eviction order of DATE , it had not ordered the cinema to be returned to the applicant . In its decision of CARDINAL DATE ORG had held that there was no obligation to return the cinema . Furthermore , under special case - law relating to ORG - owned property , the lease between ORG \u2019s heirs and the applicant was not valid . Consequently , ORG would be acting unlawfully if it revoked the assignment of the cinema to ORG . On DATE the Deputy Minister of Finance approved the opinion of ORG .","On DATE ORG dismissed the action commenced by the applicant on DATE on the ground that it should have been brought in the civil courts .","On DATE the applicant brought the action in ORG , seeking LAW in damages for the loss of income he had suffered in DATE as a result of being unable to operate his cinema and for non - pecuniary loss . The action was due to be tried on DATE but it was still pending on DATE of the hearing before the ORG .","On DATE ORG of ORG decided to commence criminal proceedings against the mayor of NORP for dereliction of duty .","On DATE the applicant brought an action against the ORG and ORG in which he sought payment of ORG CARDINAL plus interest for loss of income during DATE and for non - pecuniary damage . This action was still pending on DATE of the hearing before the ORG .","The cinema is still being operated by ORG and has not been returned to the applicant .","The applicant has not set up an open - air cinema anywhere else .","The immovable property of the ORG is protected against third parties by PERSON no . CARDINAL\/CARDINAL amending and supplementing the provisions on ORG property .","Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the PERSON provides :","\u201c \u2026 The relevant tax inspector shall issue an administrative eviction order against any person wrongfully taking over public property . An application to set aside such an order may be filed with the appropriate ORG within DATE of its being served \u2026 An appeal against the decision of ORG may be brought within DATE before the President of ORG , who shall hear it under the special procedure provided for in LAW . No appeal shall lie against the decision of the President of ORG . The decision resulting from the foregoing procedure shall not prevent the parties from asserting their rights by means of ordinary procedure \u2026 \u201d","\u201c \u2026 \u039a\u03b1\u03c4\u03ac \u03c4\u03bf\u03c5 \u03b1\u03c5\u03c4\u03bf\u03b3\u03bd\u03c9\u03bc\u03cc\u03bd\u03c9\u03c2 \u03b5\u03c0\u03b9\u03bb\u03b1\u03bc\u03b2\u03b1\u03bd\u03bf\u03bc\u03ad\u03bd\u03bf\u03c5 \u03bf\u03b9\u03bf\u03c5\u03b4\u03ae\u03c0\u03bf\u03c4\u03b5 \u03b4\u03b7\u03bc\u03bf\u03c3\u03af\u03bf\u03c5 \u03ba\u03c4\u03ae\u03bc\u03b1\u03c4\u03bf\u03c2 \u03c3\u03c5\u03bd\u03c4\u03ac\u03c3\u03c3\u03b5\u03c4\u03b1\u03b9 \u03c0\u03b1\u03c1\u03ac \u03c4\u03bf\u03c5 \u03b1\u03c1\u03bc\u03bf\u03b4\u03af\u03bf\u03c5 PERSON CARDINAL \u03b5\u03c0\u03b9\u03c4\u03c1\u03ad\u03c0\u03b5\u03c4\u03b1\u03b9 \u03ac\u03c3\u03ba\u03b7\u03c3\u03b7 \u03b1\u03bd\u03b1\u03ba\u03bf\u03c0\u03ae\u03c2 \u03b5\u03bd\u03ce\u03c0\u03b9\u03bf\u03bd \u03c4\u03bf\u03c5 \u03b1\u03c1\u03bc\u03bf\u03b4\u03af\u03bf\u03c5 PERSON \u03bc\u03ad\u03c3\u03b1 \u03c3\u03b5 \u03b1\u03c0\u03bf\u03ba\u03bb\u03b5\u03b9\u03c3\u03c4\u03b9\u03ba\u03ae \u03c0\u03c1\u03bf\u03b8\u03b5\u03c3\u03bc\u03af\u03b1 CARDINAL \u03b7\u03bc\u03b5\u03c1\u03ce\u03bd \u03b1\u03c0\u03cc \u03c4\u03b7\u03c2 \u03ba\u03bf\u03b9\u03bd\u03bf\u03c0\u03bf\u03b9\u03ae\u03c3\u03b5\u03c9\u03c2 \u03c4\u03bf\u03c5 \u2026 \u039a\u03b1\u03c4\u03ac \u03c4\u03b7\u03c2 \u03b1\u03c0\u03bf\u03c6\u03ac\u03c3\u03b5\u03c9\u03c2 \u03c4\u03bf\u03c5 PERSON \u03c7\u03c9\u03c1\u03b5\u03af \u03ad\u03c6\u03b5\u03c3\u03b7 \u03b5\u03bd\u03ce\u03c0\u03b9\u03bf\u03bd \u03c4\u03bf\u03c5 PERSON , \u03c0\u03bf\u03c5 \u03b4\u03b9\u03ba\u03ac\u03b6\u03b5\u03b9 \u03bc\u03b5 \u03c4\u03b7\u03bd \u03b5\u03b9\u03b4\u03b9\u03ba\u03ae \u03b4\u03b9\u03b1\u03b4\u03b9\u03ba\u03b1\u03c3\u03af\u03b1 \u03c4\u03bf\u03c5 \u03ac\u03c1\u03b8\u03c1\u03bf\u03c5 CARDINAL DATE , \u03bc\u03ad\u03c3\u03b1 \u03c3\u03b5 \u03c0\u03c1\u03bf\u03b8\u03b5\u03c3\u03bc\u03af\u03b1 CARDINAL \u03b7\u03bc\u03b5\u03c1\u03ce\u03bd. \u039a\u03b1\u03c4\u03ac \u03c4\u03b7\u03c2 \u03b1\u03c0\u03bf\u03c6\u03ac\u03c3\u03b5\u03c9\u03c2 \u03c4\u03bf\u03c5 PERSON \u03bf\u03c5\u03b4\u03ad\u03bd \u03ad\u03bd\u03b4\u03b9\u03ba\u03bf \u03bc\u03ad\u03c3\u03bf \u03c7\u03c9\u03c1\u03b5\u03af. \u0397 \u03ba\u03b1\u03c4\u03ac \u03c4\u03b7\u03bd \u03b1\u03bd\u03c9\u03c4\u03ad\u03c1\u03c9 \u03b4\u03b9\u03b1\u03b4\u03b9\u03ba\u03b1\u03c3\u03af\u03b1 \u03b5\u03ba\u03b4\u03b9\u03b4\u03bf\u03bc\u03ad\u03bd\u03b7 \u03b1\u03c0\u03cc\u03c6\u03b1\u03c3\u03b7 \u03b4\u03b5\u03bd \u03c0\u03b1\u03c1\u03b1\u03ba\u03c9\u03bb\u03cd\u03b5\u03b9 \u03c4\u03b7\u03bd \u03b5\u03c0\u03b9\u03b4\u03af\u03c9\u03be\u03b7 \u03c4\u03c9\u03bd \u03b5\u03ba\u03b1\u03c4\u03ad\u03c1\u03c9\u03b8\u03b5\u03bd \u03b4\u03b9\u03ba\u03b1\u03b9\u03c9\u03bc\u03ac\u03c4\u03c9\u03bd \u03ba\u03b1\u03c4\u03ac \u03c4\u03b7\u03bd \u03c4\u03b1\u03ba\u03c4\u03b9\u03ba\u03ae \u03b4\u03b9\u03b1\u03b4\u03b9\u03ba\u03b1\u03c3\u03af\u03b1 \u2026 \u201d","Applications to set aside and the entire procedure for challenging administrative eviction orders are concerned solely with the validity of the eviction order and not with recognition of ownership or regulation of possession .","Where an administrative eviction order is quashed and it is desired that the decision make provision for the reinstatement of the evicted appellant , an application for reinstatement must be lodged either at the same time as the application to set aside \u2013 in which case a consequential order will be made if the application is allowed DATE or separately with the appropriate court ( action for regulation of possession ) . An application for reinstatement is not subject to the time - limits laid down by LAW no . CARDINAL\/CARDINAL for applying to set aside an eviction order , since there is no provision to that effect ( ORG judgment no . CARDINAL , Reports DATE , pp . CARDINAL - CARDINAL , ORG of First Instance judgment no . CARDINAL , ORG opinion no . CARDINAL\/CARDINAL , ORG and b and DATE ) .","The lessee of a property is the possessor of the leased property . This right of possession is protected by domestic law . The protection of possession both as a material fact and as a legal relationship is regulated in NORP law by Articles CARDINAL et seq . of LAW .","NORP In particular , LAW , entitled \u201c Protection of possessors \u201d , provides :","\u201c In the event of unlawful interference with the possession of property or of a right or in the event of dispossession , the person who , as lessee or bailee or as a consequence of a similar relationship , took possession of the property or right from the person who had use of it shall also have a possession claim against third parties . \u201d","\u201c \u0395\u03c0\u03af \u03c0\u03b1\u03c1\u03b1\u03bd\u03cc\u03bc\u03bf\u03c5 \u03b4\u03b9\u03b1\u03c4\u03b1\u03c1\u03ac\u03be\u03b5\u03c9\u03c2 \u03c4\u03b7\u03c2 \u03bd\u03bf\u03bc\u03ae\u03c2 \u03c0\u03c1\u03ac\u03b3\u03bc\u03b1\u03c4\u03bf\u03c2 \u03ae \u03b4\u03b9\u03ba\u03b1\u03b9\u03ce\u03bc\u03b1\u03c4\u03bf\u03c2 , \u03ae \u03b1\u03c0\u03bf\u03b2\u03bf\u03bb\u03ae\u03c2 \u03b5\u03be \u03b1\u03c5\u03c4\u03ae\u03c2 , \u03ad\u03c7\u03b5\u03b9 \u03ba\u03b1\u03c4\u03ac \u03c4\u03c1\u03af\u03c4\u03c9\u03bd \u03c4\u03b1\u03c2 \u03c0\u03b5\u03c1\u03af \u03bd\u03bf\u03bc\u03ae\u03c2 \u03b1\u03b3\u03c9\u03b3\u03ac\u03c2 \u03ba\u03b1\u03b9 \u03bf \u03c0\u03b1\u03c1\u03ac \u03c4\u03b9\u03c5 \u03bd\u03bf\u03bc\u03ad\u03c9\u03c2 \u03bb\u03b1\u03b2\u03ce\u03bd \u03c4\u03b7\u03bd \u03ba\u03b1\u03c4\u03bf\u03c7\u03ae \u03c4\u03bf\u03c5 \u03c0\u03c1\u03ac\u03b3\u03bc\u03b1\u03c4\u03bf\u03c2 \u03ae \u03b4\u03b9\u03ba\u03b1\u03b9\u03ce\u03bc\u03b1\u03c4\u03bf\u03c2 \u03c9\u03c2 \u03bc\u03b9\u03c3\u03b8\u03c9\u03c4\u03ae\u03c2 \u03ae \u03b8\u03b5\u03bc\u03b1\u03c4\u03bf\u03c6\u03cd\u03bb\u03b1\u03be \u03ae \u03c3\u03c5\u03bd\u03b5\u03c0\u03b5\u03af\u03b1 \u03ac\u03bb\u03bb\u03b7\u03c2 \u03c0\u03b1\u03c1\u03bf\u03bc\u03bf\u03af\u03b1\u03c2 \u03c3\u03c7\u03ad\u03c3\u03b5\u03c9\u03c2. \u201d","The possession claims that the lessee and possessor of the leased property may file are set out in Articles CARDINAL and CARDINAL of LAW .","Article CARDINAL provides :","\u201c A possessor who has been unlawfully dispossessed shall be entitled to claim repossession from the person in unlawful possession . A claim for compensation under the provisions on torts shall not be excluded . \u201d","\u201c \u039f \u03bd\u03bf\u03bc\u03ad\u03b1\u03c2 \u03c0\u03bf\u03c5 \u03b1\u03c0\u03bf\u03b2\u03bb\u03ae\u03b8\u03b7\u03ba\u03b5 \u03c0\u03b1\u03c1\u03ac\u03bd\u03bf\u03bc\u03b1 \u03b1\u03c0\u03cc \u03c4\u03b7 \u03bd\u03bf\u03bc\u03ae \u03ad\u03c7\u03b5\u03b9 \u03b4\u03b9\u03ba\u03b1\u03af\u03c9\u03bc\u03b1 \u03bd\u03b1 \u03b1\u03be\u03b9\u03ce\u03c3\u03b5\u03b9 \u03c4\u03b7\u03bd \u03b1\u03c0\u03cc\u03b4\u03bf\u03c3\u03ae \u03c4\u03b7\u03c2 \u03b1\u03c0\u03cc \u03b1\u03c5\u03c4\u03cc\u03bd \u03c0\u03bf\u03c5 \u03bd\u03ad\u03bc\u03b5\u03c4\u03b1\u03b9 \u03b5\u03c0\u03b9\u03bb\u03ae\u03c8\u03b9\u03bc\u03b1 \u03b1\u03c0\u03ad\u03bd\u03b1\u03bd\u03c4\u03af \u03c4\u03bf\u03c5. ORG \u03b1\u03c0\u03bf\u03b6\u03b7\u03bc\u03b9\u03ce\u03c3\u03b5\u03c9\u03c2 \u03c3\u03cd\u03bc\u03c6\u03c9\u03bd\u03b1 \u03bc\u03b5 \u03c4\u03b9\u03c2 \u03b4\u03b9\u03b1\u03c4\u03ac\u03be\u03b5\u03b9\u03c2 \u03b3\u03b9\u03b1 \u03c4\u03b9\u03c2 \u03b1\u03b4\u03b9\u03ba\u03bf\u03c0\u03c1\u03b1\u03be\u03af\u03b5\u03c2 \u03b4\u03b5\u03bd \u03b1\u03c0\u03bf\u03ba\u03bb\u03b5\u03af\u03b5\u03c4\u03b1\u03b9. \u201d","Article CARDINAL provides :","\u201c A possessor whose possession has been the subject of unlawful interference shall be entitled to seek an order restraining the interference and prohibiting it in the future . A claim for compensation under the provisions on torts shall not be excluded . \u201d","\u201c \u039f \u03bd\u03bf\u03bc\u03ad\u03b1\u03c2 \u03c0\u03bf\u03c5 \u03b4\u03b9\u03b1\u03c4\u03b1\u03c1\u03ac\u03c7\u03b8\u03b7\u03ba\u03b5 \u03c0\u03b1\u03c1\u03ac\u03bd\u03bf\u03bc\u03b1 \u03ad\u03c7\u03b5\u03b9 \u03b4\u03b9\u03ba\u03b1\u03af\u03c9\u03bc\u03b1 \u03bd\u03b1 \u03b1\u03be\u03b9\u03ce\u03c3\u03b5\u03b9 \u03c4\u03b7\u03bd \u03c0\u03b1\u03cd\u03c3\u03b7 \u03c4\u03b7\u03c2 \u03b4\u03b9\u03b1\u03c4\u03ac\u03c1\u03b1\u03be\u03b7\u03c2 DATE \u03ba\u03b1\u03b9 \u03c4\u03b7\u03bd \u03c0\u03b1\u03c1\u03ac\u03bb\u03b5\u03b9\u03c8\u03ae \u03c4\u03b7\u03c2 \u03c3\u03c4\u03bf \u03bc\u03ad\u03bb\u03bb\u03bf\u03bd. ORG \u03b1\u03c0\u03bf\u03b6\u03b7\u03bc\u03af\u03c9\u03c3\u03b7\u03c2 \u03ba\u03b1\u03c4\u03ac \u03c4\u03b9\u03c2 \u03b4\u03b9\u03b1\u03c4\u03ac\u03be\u03b5\u03b9\u03c2 \u03b3\u03b9\u03b1 \u03c4\u03b9\u03c2 \u03b1\u03b4\u03b9\u03ba\u03bf\u03c0\u03c1\u03b1\u03be\u03af\u03b5\u03c2 \u03b4\u03b5\u03bd \u03b1\u03c0\u03bf\u03ba\u03bb\u03b5\u03af\u03b5\u03c4\u03b1\u03b9. \u201d","By Article CARDINAL , the possessor is protected in the event of dispossession , that is to say deprivation of control of the property . By Article CARDINAL , he is also protected in the event of interference , namely interference with his control of the property not amounting to dispossession . A classic example of interference , as held by the domestic courts , is threatening the possessor with prohibition of a specific act of possession .","The purpose of these remedies is to protect possession itself , regardless of whether it is based on a right or not . It is for that reason that LAW provides :","\u201c A defendant in an action for interference or dispossession can invoke a right giving him control over the property only if that right has been upheld in a final decision by a court after proceedings between him and the plaintiff . \u201d","\u201c \u039f \u03b5\u03bd\u03b1\u03b3\u03cc\u03bc\u03b5\u03bd\u03bf\u03c2 \u03b3\u03b9\u03b1 \u03b4\u03b9\u03b1\u03c4\u03ac\u03c1\u03b1\u03be\u03b7 \u03ae \u03b1\u03c0\u03bf\u03b2\u03bf\u03bb\u03ae \u03b4\u03b5\u03bd \u03bc\u03c0\u03bf\u03c1\u03b5\u03af \u03bd\u03b1 \u03b5\u03c0\u03b9\u03ba\u03b1\u03bb\u03b5\u03c3\u03c4\u03b5\u03af \u03b4\u03b9\u03ba\u03b1\u03af\u03c9\u03bc\u03b1 \u03c0\u03bf\u03c5 \u03c4\u03bf\u03c5 \u03c0\u03b1\u03c1\u03ad\u03c7\u03b5\u03b9 \u03b5\u03be\u03bf\u03c5\u03c3\u03af\u03b1 \u03c0\u03ac\u03bd\u03c9 \u03c3\u03c4\u03bf \u03c0\u03c1\u03ac\u03b3\u03bc\u03b1 \u03c0\u03b1\u03c1\u03ac \u03bc\u03cc\u03bd\u03bf \u03b1\u03bd \u03c4\u03bf \u03b4\u03b9\u03ba\u03b1\u03af\u03c9\u03bc\u03b1 \u03ad\u03c7\u03b5\u03b9 \u03b1\u03bd\u03b1\u03b3\u03bd\u03c9\u03c1\u03b9\u03c3\u03c4\u03b5\u03af \u03c4\u03b5\u03bb\u03b5\u03c3\u03af\u03b4\u03b9\u03ba\u03b1 \u03c3\u03b5 \u03b4\u03af\u03ba\u03b7 \u03b1\u03bd\u03ac\u03bc\u03b5\u03c3\u03b1 \u03c3\u03b5 \u03b1\u03c5\u03c4\u03cc\u03bd \u03ba\u03b1\u03b9 \u03c4\u03bf\u03bd \u03b5\u03bd\u03ac\u03b3\u03bf\u03bd\u03c4\u03b1. \u201d","In accordance with LAW , a possessor has these rights against third parties and not against the possessor from whom he derives the possession rights . Against the latter he has the rights afforded him by the legal relationship between them .","Where a possessor brings an action in possession , it will be either for repossession or for restraint of interference , depending on whether the possessor has been evicted or merely disturbed in the exercise of his control of the property .","Furthermore , the possessor is entitled in the same proceedings to claim compensation for the damage sustained , under the provisions on torts ( Articles CARDINAL et seq . ) .","More particularly in respect of the ORG \u2019s obligation to pay compensation , section CARDINAL of LAW to LAW is applied , under which unlawful conduct on the part of agents of the ORG creates an obligation to pay compensation irrespective of whether an offence has been committed by the agents in question . Moreover , where the unlawful situation arises from an administrative act , prior annulment of that act is not required . The court may consider the validity of the administrative act in the course of the proceedings and a specific prior ruling on its validity is not necessary .","A possessor whose right is created by a lease is also protected against the lessor if it becomes impossible for him to use the leased property .","Article CARDINAL of the Civil Code provides :","\u201c If the agreed use of the leased property is taken from the lessee in whole or in part because of a third party \u2019s right ( legal defect ) , Articles CARDINAL to CARDINAL and CARDINAL shall apply . However , the lessee may himself have the legal defect removed at the lessor \u2019s expense . \u201d","\u201c \u0391\u03bd \u03b7 \u03c3\u03c5\u03bc\u03c6\u03c9\u03bd\u03b7\u03b8\u03b5\u03af\u03c3\u03b1 \u03c7\u03c1\u03ae\u03c3\u03b7 \u03c4\u03bf\u03c5 \u03bc\u03b9\u03c3\u03b8\u03af\u03bf\u03c5 \u03b1\u03c6\u03b1\u03b9\u03c1\u03b5\u03b8\u03b5\u03af \u03b1\u03c0\u03cc \u03c4\u03bf\u03bd \u03bc\u03b9\u03c3\u03b8\u03c9\u03c4\u03ae \u03b5\u03bd \u03bc\u03ad\u03c1\u03b5\u03b9 \u03ae \u03b5\u03bd \u03cc\u03bb\u03c9 \u03b5\u03be\u03b1\u03b9\u03c4\u03af\u03b1\u03c2 \u03b4\u03b9\u03ba\u03b1\u03b9\u03ce\u03bc\u03b1\u03c4\u03bf\u03c2 \u03c4\u03c1\u03af\u03c4\u03bf\u03c5 \u03bd\u03bf\u03bc\u03b9\u03ba\u03cc \u03b5\u03bb\u03ac\u03c4\u03c4\u03c9\u03bc\u03b1 \u03b5\u03c6\u03b1\u03c1\u03bc\u03cc\u03b6\u03bf\u03bd\u03c4\u03b1\u03b9 \u03bf\u03b9 \u03b4\u03b9\u03b1\u03c4\u03ac\u03be\u03b5\u03b9\u03c2 \u03c4\u03c9\u03bd \u03ac\u03c1\u03b8\u03c1\u03c9\u03bd CARDINAL \u03ad\u03c9\u03c2 CARDINAL \u03ba\u03b1\u03b9 CARDINAL . ORG \u03bc\u03b9\u03c3\u03b8\u03c9\u03c4\u03ae\u03c2 \u03b4\u03b5\u03bd \u03b4\u03cd\u03bd\u03b1\u03c4\u03b1\u03b9 \u03bd\u03b1 \u03c0\u03c1\u03bf\u03b2\u03b5\u03af \u03bf \u03af\u03b4\u03b9\u03bf\u03c2 \u03c3\u03c4\u03b7\u03bd \u03ac\u03c1\u03c3\u03b7 \u03c4\u03bf\u03c5 \u03bd\u03bf\u03bc\u03b9\u03ba\u03bf\u03cd \u03b5\u03bb\u03b1\u03c4\u03c4\u03ce\u03bc\u03b1\u03c4\u03bf\u03c2 \u03bc\u03b5 \u03b4\u03b1\u03c0\u03ac\u03bd\u03b5\u03c2 \u03c4\u03bf\u03c5 \u03b5\u03ba\u03bc\u03b9\u03c3\u03b8\u03c9\u03c4\u03bf\u03cd. \u201d","NORP In that event , the lessee \u2019s rights under Articles CARDINAL to CARDINAL and CARDINAL , to which LAW refers , are the following : the right to reduce the rent or not to pay the rent , the right to compensation , the right to bring an action against the lessor to have the legal defect removed , and the right to terminate the lease .","Apart from the right to bring an action against the lessor to have the legal defect removed , the lessee may still bring an action in possession at his own expense against third parties in his capacity as possessor ( LAW ) .","The lessor is exempt from liability only if the lessee was aware of the defect at the time when the lease was signed .","Lastly , leases of property for carrying on commercial activities ( commercial leases ) are also governed by all the above provisions under LAW of PERSON no . CARDINAL\/CARDINAL , codified by Presidential Decree no . CARDINAL\/CARDINAL . That provision reads as follows :","\u201c Save as hereinafter provided , leases under the present PERSON shall be governed by the contractual terms and by the provisions of LAW . \u201d","\u201c \u0391\u03b9 \u03ba\u03b1\u03c4\u03ac \u03c4\u03bf\u03bd \u03c0\u03b1\u03c1\u03cc\u03bd\u03c4\u03b1 \u03bd\u03cc\u03bc\u03bf\u03bd \u03bc\u03b9\u03c3\u03b8\u03ce\u03c3\u03b5\u03b9\u03c2 , \u03b5\u03c6\u03cc\u03c3\u03bf\u03bd \u03b4\u03b5\u03bd \u03bf\u03c1\u03af\u03b6\u03b5\u03c4\u03b1\u03b9 \u03ac\u03bb\u03bb\u03c9\u03c2 \u03b5\u03b9\u03c2 \u03b1\u03c5\u03c4\u03cc\u03bd , \u03b4\u03b9\u03ad\u03c0\u03bf\u03bd\u03c4\u03b1\u03b9 \u03c5\u03c0\u03cc \u03c4\u03c9\u03bd \u03c3\u03c5\u03bc\u03b2\u03b1\u03c4\u03b9\u03ba\u03ce\u03bd \u03c0\u03b5\u03c1\u03af \u03b1\u03c5\u03c4\u03ce\u03bd \u03cc\u03c1\u03c9\u03bd \u03ba\u03b1\u03b9 \u03c4\u03c9\u03bd \u03b4\u03b9\u03b1\u03c4\u03ac\u03be\u03b5\u03c9\u03bd \u03c4\u03bf\u03c5 GPE \u039a\u03ce\u03b4\u03b9\u03ba\u03bf\u03c2. \u201d"],"violated_articles":["13"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107392","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2011,"docname":"CASE OF KORMOS v. SLOVAKIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (victim);Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["The applicant was born in DATE and lives in GPE .","On DATE the police arrested the applicant . He was accused of planning a robbery and remanded in custody from that date .","Several decisions extending the applicant \u2019s detention were made . In particular , on DATE ORG extended his detention in the context of the pre - trial proceedings until DATE .","On DATE the public prosecutor indicted the applicant and several other persons before ORG .","The applicant requested to be released , arguing that ORG had not extended his detention after the expiry of the period indicated in the ORG decision of DATE .","On DATE ORG ordered the applicant \u2019s release . Upon a complaint lodged by the public prosecutor ORG decided on DATE that the applicant should remain remanded in custody .","On DATE ORG dismissed the applicant \u2019s request for release . On DATE ORG dismissed a complaint by the applicant against that decision .","NORP On DATE the applicant complained to ORG that his detention in the period after DATE and ORG above decision of CARDINAL DATE were both unlawful . In a separate complaint lodged on DATE the applicant complained about the refusal to release him in the proceedings leading to ORG decision of DATE .","On DATE the applicant was released .","On DATE ORG found that the applicant \u2019s right under LAW had been violated as a result of ORG decision of CARDINAL DATE . There had been no judicial decision extending his detention after DATE , and there existed no justification for that situation .","The Constitutional Court quashed ORG decision of CARDINAL DATE in so far as it concerned the applicant and ordered ORG to reimburse the applicant \u2019s costs in the constitutional proceedings . It dismissed the applicant \u2019s claim for just satisfaction with reference to a conclusion which a different chamber of the LAW court had reached in the case of CARDINAL of the applicant \u2019s co - accused . According to that conclusion , ( i ) the finding of a violation of LAW provided appropriate redress to the plaintiff and ( ii ) ORG decision of CARDINAL DATE was based on that court \u2019s earlier practice , which , however , was not in accordance with practice under the Convention .","In a judgment of DATE ORG found that by its decision of DATE ORG had breached the applicant \u2019s right under LAW . In particular , ORG should have remedied the situation resulting from the applicant \u2019s unlawful detention from DATE by ordering his release .","The judgment stated , in particular :","\u201c In ORG view , the jurisdiction of the court involved at the pre - trial stage ended with the filing of the indictment on DATE . The indictment as such is not a ground for continued detention of a person , as it does not explicitly follow from the law , and it is inadmissible to extend the possibilities of restricting a person \u2019s liberty by extensive interpretation of several provisions of LAW .","However , a court \u2019s decision on detention of a person given at the pre - trial stage can constitute a ground for such person \u2019s detention for a short period following the indictment . Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed . In the circumstances , a ground for the applicant \u2019s detention existed until DATE . The detention should have been extended by a decision given no later than DATE if it was to continue after that date . In the absence of any such decision , the restriction of the applicant \u2019s liberty after DATE was unlawful .","The unlawfulness of the applicant \u2019s deprivation of liberty after DATE can not be justified retrospectively , not even by a judicial decision . Subsequent judicial decisions could not have extended the applicant \u2019s detention , as it had ended on DATE . The only existing possibility was to remand the applicant in custody again . As this was not done , his subsequent deprivation of liberty had no legal ground . \u201d","The Constitutional Court quashed ORG decision of DATE , granted the equivalent of MONEY ( ORG ) to the applicant as just satisfaction and ordered ORG to reimburse the applicant \u2019s costs .","The following provisions of LAW ( Law no . CARDINAL\/CARDINAL Coll . , in force until DATE ) are relevant in the present case .","Pursuant to LAW , a person \u2019s detention in the context of both pre - trial proceedings and during proceedings before a trial court may only last as long as necessary . Where detention in the context of pre - trial proceedings is to exceed DATE , it may be extended at a public prosecutor \u2019s request up to DATE by a judge or to a maximum of DATE by a court \u2019s chamber .","Article CARDINAL \u00a7 CARDINAL provides that a person \u2019s detention in the context of both pre - trial proceedings and during trial must not exceed DATE . In justified cases ORG may extend its duration to a maximum of DATE and in cases of particularly serious offences DATE . Under paragraph CARDINAL of Article CARDINAL , a proposal for extension of a person \u2019s detention is to be submitted by a public prosecutor in the pre - trial proceedings and by the president of the court \u2019s chamber during the trial .","Article CARDINAL \u00a7 CARDINAL obliges investigators , prosecutors and judges to examine , at each stage of criminal proceedings , whether reasons for the accused person \u2019s detention persist . In pre - trial proceedings a judge is obliged to do so only when deciding on a public prosecutor \u2019s proposal to extend detention or to modify the reasons for it or when deciding on an accused person \u2019s application for release . Where a reason for an accused person \u2019s detention no longer exists , the accused must be released immediately .","Article CARDINAL \u00a7 CARDINAL entitles an accused to apply for release at any time . When the public prosecutor dismisses such an application in the course of pre - trial proceedings , he or she must submit it immediately to the court . The decision on an application for release must be taken without delay . If an application is dismissed , the accused may only renew it DATE after the decision has become final unless he or she cites other reasons justifying his or her release .","Pursuant to LAW , where the court carries out a preliminary examination of the indictment of a person who is detained , it shall also decide whether that person is to remain in custody .","In accordance with ORG practice , the time - limits mentioned in LAW concerned exclusively situations where a decision on a public prosecutor \u2019s proposal was to be made in the context of pre - trial proceedings . However , where an indictment had been filed within a shorter time than the DATE period mentioned in LAW , the law did not require that a request for continued detention of the accused persons be made or that a separate decision should be made on their continued detention , with the exception of cases where the indictment had been filed DATE before the expiry of the DATE maximum period of detention .","Pursuant to a ORG standpoint of DATE ( Rt CARDINAL\/CARDINAL ) , LAW requires a court to decide on further detention of the accused where it carries out a preliminary examination of the indictment . Accordingly , where the presiding judge concludes , on the basis of the file , that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful , there is no need for a separate decision of the court chamber on continued detention of the accused . However , where the accused applies for release , that application must be decided upon without delay , in accordance with LAW .","In judgment ORG CARDINAL\/CARDINAL ORG noted that LAW did not explicitly require that a decision on extension of an accused person \u2019s detention be given in cases where an indictment had been filed and where the detention , both at the pre - trial stage and during the trial , had not exceeded DATE .","It held , however , that the filing of an indictment alone did not as such justify a person \u2019s continued detention . The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre - trial proceedings .","In its judgment ORG referred in particular to the guarantees laid down in LAW and the ORG \u2019s judgment in PERSON v. GPE ( no . CARDINAL\/CARDINAL , DATE , \u00a7 \u00a7 CARDINAL ) .","In that case ORG found no breach of LAW as the ordinary court involved , both in the context of a preliminary examination of the indictment and in reaction to the accused person \u2019s request for release , had decided that the reasons for the latter \u2019s detention persisted . That decision had the same effect as a decision to extend the accused person \u2019s detention .","In the above case , which concerned CARDINAL of the present applicant \u2019s co - accused , the detention in the context of pre - trial proceedings had been extended until DATE . Prior to its expiry , on DATE , the accused was indicted . In its judgment ORG found that ORG had breached the plaintiff \u2019s right under LAW , in that there had been no judicial decision extending his detention after DATE and there existed no justification for that situation . It was irrelevant that courts at CARDINAL levels had dismissed the accused person \u2019s application for release on DATE and DATE respectively , as those decisions related to detention in the context of pre - trial proceedings , that is prior to the filing of the indictment . In those circumstances , any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted .","With reference to its judgment ORG CARDINAL\/CARDINAL of DATE , ORG held that for a detention to be lawful it must always rely on a court decision . Since DATE ORG has confirmed that opinion in a number of judgments , including the cases of the applicant and another CARDINAL of his co - accused .","In judgment PERSON CARDINAL\/CARDINAL the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of an accused to be lawful . The court dealing with the criminal case which follows an indictment is required to take a decision on the accused person \u2019s detention prior to the expiry of the period for which the latter had been remanded in the context of pre - trial proceedings . ORG found a breach of the accused person \u2019s right under LAW and ordered his immediate release .","The new Code of Criminal Procedure ( Law no . PERSON . ) entered into force on DATE .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that a court is obliged to decide on further detention of an accused within DATE of his or her indictment ( or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment ) unless it has already decided on detention of the accused under provisions which govern the examination of indictments .","The explanatory report to the draft Code of Criminal Procedure of DATE indicates that the above provision accentuates the judicial control of a person \u2019s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court judgment I. \u00daS CARDINAL\/CARDINAL of DATE .","LAW DATE was enacted with effect from DATE .","Pursuant to section CARDINAL , where a decision on arrest , detention or any other deprivation of liberty was quashed as being unlawful or where there was wrongful official action in that context , a person affected by it is entitled to compensation for damage .","The ORG is liable for damage caused by wrongful official action which comprises , inter alia , a public authority \u2019s failure to take action within a set time - limit , inactivity , or any other unlawful interference with rights and legally recognised interests of individuals and legal entities ( section CARDINAL(CARDINAL ) ) .","NORP Under LAW the compensation is to cover pecuniary damage , including loss of profit , and , where appropriate and necessary , non - pecuniary damage .","In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL\/CARDINAL ) ORG allowed an action for damages by CARDINAL individuals against the ORG under LAW DATE and ordered the defendant to pay the costs of their defence in a criminal trial on charges of DATE which had ended with their acquittal with final and binding effect in DATE . On DATE the Bansk\u00e1 Bystrica Regional Court upheld that judgment following an appeal by the defendant .","In a judgment of CARDINAL DATE ( in case no . CARDINALC CARDINAL\/CARDINAL ) the GPE I ORG granted an action for damages by an individual against the ORG under LAW DATE and awarded the claimant a sum in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial . The impugned wrongful official action concerned the extension by a decision of CARDINAL DATE of the claimant \u2019s detention pending trial , until DATE . The action was preceded by a judgment of ORG of DATE ( in case no . I. \u00daS CARDINAL\/CARDINAL ) in which ORG had found a violation of the plaintiff \u2019s rights under LAW and CARDINAL in connection with the same facts . However , ORG had made no award to the claimant of just satisfaction as he had made no claim to that effect ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104804","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF GAZ\u0130O\u011eLU AND OTHERS v. TURKEY","importance":4,"conclusion":"Violation of Art. 3;Violation of Art. 11","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi","text":["The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .","On DATE the applicants took part in an anti - war demonstration in GPE . The gathering was dispersed by police officers and the applicants were arrested and taken into police custody where they remained until their release the following day . The applicants allege that they were subjected to ill - treatment during their arrest and their detention in custody .","According to an incident report drawn up by a number of police officers on DATE , CARDINAL persons , including the applicants , gathered in a square in GPE at TIME and chanted anti - war slogans , protesting against the ORG \u2019s proposals to send soldiers to participate in the invasion of GPE . The police had warned them with loudspeakers that they were disturbing the flow of traffic and had unsuccessfully asked them to disperse . When the police had attempted to arrest some of the demonstrators and put them into the police vehicles , a number of the demonstrators had displayed \u201c rowdy behaviour \u201d and the police had had to use force against them . A total of QUANTITY persons , including the applicants , had been arrested and taken to a police station at TIME . This incident report was signed by CARDINAL police officers who were only referred to in the report with their identification numbers .","DATE the applicants were examined by a doctor . According to the medical reports , the second and third applicants had no signs of ill - treatment on their bodies . The first applicant had bruising on her lower lip and on her lower right leg . The fourth applicant had bruising on the left side of his lower back and on the back of his right ear . His legs were also sensitive and he had redness in his left eye .","The same evening the applicants were questioned by the police in the presence of a duty lawyer . With the exception of the third applicant , all the applicants exercised their right to remain silent .","The following day the applicants were examined by a doctor once more . According to the medical reports , there were no signs of ill - treatment on the ORG bodies other than those mentioned in the medical reports drawn up DATE .","At TIME the applicants were brought before the PERSON prosecutor . The applicants told the prosecutor that by attending the demonstration they had been exercising their democratic rights . They also alleged that the police had arrested them without any previous warnings . The fourth applicant complained that he had been beaten up by the police officers . The first and fourth applicants also complained that police chief PERSON had sworn at them during their time in police custody . The same day the applicants were released .","On DATE the PERSON prosecutor asked for an investigation to be opened into the applicants\u2019 allegations of ill - treatment .","The applicants submitted a formal complaint to the PERSON prosecutor on DATE . With the exception of the third applicant , Mr Hac\u0131 Badem , the applicants complained of ill - treatment . Referring to LAW the CARDINAL applicants stated that the police officers had punched and kicked them in the course of their arrests , as well as during their detention at the police station .","Between DATE and DATE the PERSON prosecutor questioned CARDINAL police officers . CARDINAL of the police officers denied having been at the demonstration or having seen any of the demonstrators because they had been working elsewhere at the time . The remaining officer , police chief PERSON , told the prosecutor that he had not taken part in the dispersal of the demonstration but had questioned the applicants in police custody . He denied having ill - treated any of the arrestees or having sworn at them .","On DATE the PERSON prosecutor decided to close the investigation into the applicants\u2019 allegations of ill - treatment . On the basis of the documents in the file the prosecutor considered that when the applicants refused to disperse the police had had to use force against them . The applicants\u2019 \u201c simple injuries \u201d had thus been caused when the police had been exercising their statutory powers on the use of force .","NORP The applicants\u2019 objection against the prosecutor \u2019s decision was rejected by ORG on DATE . This decision stated that it was to be served on the applicants .","According to a hand - written note on this decision , it was communicated to the applicants on DATE .","In the meantime , on DATE criminal proceedings were instigated against the applicants for having taken part in an unlawful demonstration , in breach of sections CARDINAL , DATE and DATE of ORG ( Law no . CARDINAL ) .","On DATE ORG acquitted the applicants , holding that they had exercised their democratic rights and not committed any offences ."],"violated_articles":["11","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90108","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2008,"docname":"NENKOV v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village of PERSON , near the town of PERSON .","He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","On TIME CARDINAL DATE the applicant went to a neighbouring village on business . While on his way back to his home village , he allegedly met a neighbour , PERSON , who was transporting stones in a horsecart . Apparently the applicant and PERSON had for DATE been involved in a property dispute relating to a plot of agricultural land owned by the applicant .","After that the applicant had lunch in his house and at TIME went to clean the abovementioned plot of land . He saw a pile of stones there and started throwing them out . Then PERSON allegedly tried to enter the applicant \u2019s plot with his cart . The applicant took a pole and tried to hit PERSON horse . According to the applicant \u2019s allegations , at that point PERSON PERSON struck him in the face with a pitchfork and then knocked him on the back of the head with it . The assault left the applicant blinded and bleeding . After that he reportedly heard the noise of a horsecart driving away . There were no other persons present at the scene .","Some time later Mr NORP and Mr GPE arrived at the scene of the incident . Mr PERSON took the applicant to a hospital . They did not witness the incident , but the applicant told them that PERSON had assaulted him .","As a result of the pitchfork blow to the face , the applicant lost the sight of both eyes .","DATE the police opened a preliminary inquiry ( see below , Relevant domestic law and practice ) into the incident and impounded CARDINAL pitchforks from Mr PERSON \u2019s house . They did not apprise the competent prosecutor of the impounding . It seems that in the course of the inquiry Mr PERSON admitted to having hit the applicant .","Later , a criminal investigation was opened and on an unspecified date in DATE PERSON was charged with inflicting grievous bodily harm on the applicant , contrary to LAW ( see below , Relevant domestic law and practice ) . The investigation authorities interviewed the applicant , CARDINAL witnesses , and PERSON , who denied any wrongdoing .","A medical expert report drawn up during the proceedings found that the applicant had completely lost the sight in his left eye , and could only distinguish light from dark with his right eye . The report also established that the injuries were consistent with a pitchfork blow as the CARDINAL described by the applicant . The report concluded that the applicant had become permanently blind in both eyes , which amounted to grievous bodily harm , while the other injuries , to his face and the back of his head , were minor .","On DATE the applicant applied to join the proceedings as a private prosecutor and a civil claimant .","On an unspecified date the investigator in charge of the case sent the file to ORG with a proposal to indict PERSON ORG","In a decision of CARDINAL DATE a prosecutor of ORG decided to drop the charges against PERSON and discontinue the investigation in respect of him , continuing it against an \u201c unknown perpetrator \u201d . She reasoned that he had denied his guilt and that , apart from the applicant , there were no eyewitnesses who could positively establish the identity of the perpetrator of the offence ; the statements of the witnesses could not fill this lacuna . It followed that the charges could not be proved beyond reasonable doubt , whereas a conviction or even an indictment could not rest on inferences . All possible investigative steps had been taken and no further incriminating evidence had been uncovered . It was true that the police had impounded a pitchfork on DATE of the offence , but it could not be admitted in evidence , as the impounding had not been carried out in accordance with the relevant rules of procedure . According to ORG caselaw , all acts of procedure carried out prior to the institution of criminal proceedings , within the framework of a preliminary inquiry under LAW ( \u201c the ORG \u201d \u2013 see below , Relevant domestic law and practice ) , could exceptionally be considered valid only if they had been undertaken with the knowledge of the competent prosecutor . In the case at hand the competent prosecutor at ORG had not been informed of the impounding either before or immediately after it had been carried out . Under LAW \u00a7 CARDINAL of the ORG ( see below , Relevant domestic law and practice ) , this omission had compromised the evidence thus obtained . Finally , the prosecutor decided to stay the investigation , as the identity of the perpetrator was unknown .","In line with LAW of the ORG , as in force at the relevant time ( see below , Relevant domestic law and practice ) , ORG sent a copy of the decision to ORG . On DATE that office confirmed it , citing the same reasons . It added that the impounding had not been carried out in the presence of certifying witnesses , that the scene of the crime had not been preserved , that after the incident of DATE Mr PERSON had not been examined for traces of blood on him , and that he had an alibi , confirmed by CARDINAL witnesses . No other investigative steps were possible .","A copy of the prosecutor \u2019s decision was sent to ORG . In a decision of DATE it also confirmed the discontinuation , agreeing with the ORG reasoning . The applicant was not notified of the court \u2019s decision .","After he found out about it , on DATE he lodged an appeal with ORG . On DATE that office dismissed the appeal , informing the applicant that the discontinuation of the proceedings was not subject to appeal . The review procedure was automatic and had already taken place .","On DATE the applicant requested ORG to reopen the investigation . In reply , on DATE ORG informed the applicant that following the amendments of the ORG which had come into force on DATE ( see below , Relevant domestic law and practice ) it was not possible to reopen criminal investigations whose discontinuation had been confirmed by a court .","On DATE the applicant resubmitted his request and as a result on CARDINAL DATE the Chief Prosecutor requested ORG to reopen the criminal investigation . He argued that the decisions to discontinue it were overly formalistic and not sufficiently reasoned , and that the competent authorities had not properly assessed the evidence . In his view , this constituted grounds for reopening under LAW ( CARDINAL ) in conjunction with LAW ( CARDINAL ) of the ORG ( see below , Relevant domestic law and practice ) .","In a judgment of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. , \u043f\u043e \u043d.\u0434. CARDINAL\/CARDINAL \u0433. , ORG , ORG \u043d.\u043e. ) ORG rejected the Chief Prosecutor \u2019s request as inadmissible . It noted that reopening had been possible prior to DATE . However , under the amendments to the ORG of that date prosecutors alone had competence to discontinue criminal proceedings . Their decisions were subject to appeal before the respective firstinstance courts , whose decisions were subject to appeal and then to appeal on points of law ( see below , Relevant domestic law and practice ) . The counterpoise of these newly introduced possibilities to appeal had been the withdrawing of the possibility of setting aside the court \u2019s decision by way of reopening . The LAW for the amendment of the ORG contained no provisions allowing judicial decisions confirming discontinuations of criminal investigations under the old system to be reviewed in reopening proceedings .","No investigative steps were taken DATE in the investigation against an \u201c unknown perpetrator \u201d .","Articles CARDINAL , CARDINAL and CARDINAL of the DATE LAW make it an offence to inflict bodily harm on another . Harm is classified as minor , intermediate or grievous by reference to medical criteria laid down in the second paragraphs of these ORG . Permanent blindness in CARDINAL or both eyes constitutes grievous bodily harm ( LAW ) . Inflicting grievous bodily harm is a publicly prosecutable offence in all cases ( LAW of the Code ) .","Criminal proceedings for publicly prosecutable offences could be opened only by the decision of a prosecutor or an investigator ( LAW and CARDINAL of the ORG , as in force at the relevant time ) . They had to open an investigation whenever they received information , supported by sufficient evidence , that an offence might have been committed ( Articles CARDINAL to CARDINAL of the ORG ) .","If the investigation authorities did not have enough evidence to institute criminal proceedings and no immediate investigative steps were required , they could carry out a preliminary inquiry ( \u201c \u043f\u0440\u0435\u0434\u0432\u0430\u0440\u0438\u0442\u0435\u043b\u043d\u0430 \u043f\u0440\u043e\u0432\u0435\u0440\u043a\u0430 \u201d ) to determine whether the institution of criminal proceedings was warranted . The inquiry could be opened by the investigator or the police , who had to inform the competent prosecutor , or be ordered by the prosecutor ( LAW ORG , as in force at the material time ) . The authorities carrying out the inquiry could search the crime scene and impound objects they found there if this was the only opportunity for preserving the evidence . The investigator had to inform the prosecutor about these actions forthwith ( LAW ORG , as in force at the material time ) .","Evidence which was not gathered in the manner prescribed by the ORG was inadmissible ( LAW ORG ) . According to ORG caselaw , this requirement meant that the results of investigative actions undertaken before the institution of criminal proceedings could be taken into account only if they had taken place in the course of a preliminary inquiry . It followed that the competent prosecutors had to be apprised promptly , so as to be able to exercise their supervisory powers . This was an essential prerequisite for the results of these actions to be taken into account in the ensuing criminal proceedings . The failure to inform the prosecutor had the effect of compromising these actions and the evidence obtained through them ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e ORG DATE \u0433. , ORG , I \u043d.\u043e. ) .","LAW ORG provided that the victim of an offence who had suffered damage could bring a civil claim in the context of the criminal proceedings . Until DATE such a claim could be lodged even during the preliminary investigation ( LAW ORG , as in force until DATE ) . After that it could be made only after the case had proceeded to trial ( LAW ORG , as in force after DATE ) . The latter position was maintained under LAW DATE Code of Criminal Procedure . Civil claimants are entitled to take part in the proceedings , acquaint themselves with the case file and make copies , adduce evidence , make requests and objections , and challenge the decisions which impinge on their rights and legitimate interests ( LAW ORG and LAW DATE Code ) .","The DATE Code of Criminal Procedure gave the victims of offences certain rights which do not depend on their joining the proceedings as private prosecutors or civil claimants . Under LAW of this Code , they are entitled to be apprised of their procedural rights , be kept abreast of the progress of the proceedings , if they have so requested , and challenge the decisions to discontinue the proceedings .","By LAW ORG , as in force until DATE , public prosecutors discontinued proceedings if they found that the charges had not been proven . Paragraphs CARDINAL and CARDINAL of that Article , as in force between CARDINAL January CARDINAL and DATE , provided that after the discontinuation the prosecutor had to send the file and his decision to the immediately superior prosecutor \u2019s office , which could confirm , modify or quash it . If it confirmed the decision it had to send the file to the appropriate court , which had to rule in private on the wellfoundedness or otherwise of the discontinuation ( Article CARDINAL \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL of the ORG , as in force at that time ) . Paragraph CARDINAL of that Article provided that the court \u2019s decision was not subject to appeal . No provision was made for the victim of the offence to be notified of the discontinuation .","Article CARDINAL of the ORG was completely changed with effect from DATE and henceforth provided that the prosecutor \u2019s decision to discontinue the proceedings was to be served on the accused and the victim of the alleged offence . Either of them could then appeal against it to the respective firstinstance court within DATE . The court \u2019s decision was in turn subject to appeal to the higher court within DATE of its delivery ( LAW ORG , as in force DATE and DATE , and LAW ORG ) . The higher court \u2019s decision was then subject to appeal on points of law to ORG , within DATE of its delivery ( LAW ORG , as in force DATE and DATE , and LAW . In DATE the ORG was amended again , following which the firstinstance court \u2019s decision was not subject to appeal .","Under LAW , the decision of the firstinstance court to uphold the discontinuation of a criminal investigation by the prosecutor is served on the accused and the victim of the offence and is subject to appeal before the higher court , but the latter \u2019s decision is not appealable on points of law ( Article CARDINAL \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL of that Code ) .","Article CARDINAL of the ORG enumerated the judicial rulings which could be set aside by way of reopening . In its version DATE and DATE the list included the decisions confirming the discontinuation of a criminal investigation by the prosecutor ( see above ) . The amendment to the ORG which entered into force on DATE ( see above ) removed those decisions from the list , with the result that decisions upholding the discontinuation of a criminal investigation made after its entry into force were not annullable by way of reopening . However , the amendment was silent on the issue whether such decisions made prior to its entry into force were likewise no longer capable of being set aside by way of reopening . The issue was settled in a couple of judgments given by the First and FAC of ORG in DATE : the judgment in the applicant \u2019s case and a judgment delivered DATE , on DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e ORG \u0433. , ORG , I \u043d.\u043e. ) . In both of them the court , after analysing in some detail the amendment \u2019s overall scheme , ruled , against the views of ORG , that decisions made prior to the entry of the amendment into force \u2013 CARDINAL DATE \u2013 could not be set aside by way of reopening . A majority of ORG of the court confirmed this approach in a decision of DATE ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0440\u0442 DATE \u0433. \u043f\u043e ORG \u2116 ORG \u0433. , ORG , I \u043d.\u043e. ) , against the dissent of the presiding judge , who was of the view that reopening was still available in respect of decisions made before DATE .","Article CARDINAL \u00a7 CARDINAL of the DATE Code of Criminal Procedure provides that judicial decisions upholding the discontinuation of a criminal investigation by the prosecutor are capable of being set aside by way of reopening .","Requests for reopening are examined by ORG ( Article CARDINAL of the ORG and LAW ) . Requests based on material breaches of the substantive or the procedural law ( LAW ( CARDINAL ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) of the ORG , superseded by LAW ( CARDINAL ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) of the DATE Code of Criminal Procedure ) , can be made only by ORG ( Article CARDINAL \u00a7 CARDINAL in fine of the ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61069","languageisocode":"ENG","respondent":"ESP","branch":"CHAMBER","date":2003,"docname":"CASE OF IGLESIAS GIL AND A.U.I. v. SPAIN","importance":1,"conclusion":"Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The first applicant , PERSON , was born in DATE and lives in GPE . She is the mother of the second applicant , GPE , who was born in DATE .","On DATE the first applicant married A.U.A. On DATE the couple divorced . Their son GPE was born on DATE and A.U.A. acknowledged paternity . In a decision of DATE , ORG awarded the first applicant custody of GPE , and the father access . On DATE A.U.A. abducted his son during an access visit and left GPE with him . After passing through GPE and GPE , he travelled with the child by air to GPE .","The first applicant lodged a criminal complaint with ORG investigating judge no . CARDINAL alleging child abduction and applied to be joined to the proceedings as a civil party . On DATE the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child \u2019s immediate return to its mother . Subsequently , the first applicant also made criminal complaints against various members of LOC \u2019s family who , she said , had assisted in her son \u2019s abduction .","During the investigation , the first applicant requested PERSON investigating judge no . CARDINAL to monitor calls on LOC \u2019s mobile telephone and to interview members of ORG \u2019s family . In a decision of DATE , the investigating judge turned down both requests , the former on the ground that there was no evidence that the mobile telephone number that had been given was LOC \u2019s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband \u2019s relatives . The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to LOC that was responsible for administering his property in his absence , and for the examination of a vehicle he had used to leave GPE . The judge again refused .","The first applicant asked the judge to issue an international search and arrest warrant against A.U.A. , but in an order of CARDINAL DATE , he declined , stating :","\u201c ...","As regards the international search and arrest warrant , the offences of coercion and extortion have not been made out . It is debatable whether there has been an offence of criminal contempt , since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence . In addition , since this offence ( LAW ) only carries a prison sentence of DATE , an international search and arrest warrant is not justified , [ especially ] as the conduct complained of appears to come within Article CARDINAL of LAW , which characterises it as a minor offence .","...","Furthermore , it should be noted that the requested procedural steps are neither lawful , nor adapted to the aim pursued , and must therefore be refused pursuant to LAW . \u201d","In a decision of DATE , investigating judge no . CARDINAL turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband \u2019s contempt and failure to comply with the judgment of the family court on the following grounds :","\u201c ...","Investigative steps are taken in order to establish whether an offence has been committed . The investigation is brought to an end by a judicial decision , not at the request of a party ( LAW ) .","The inquiries made to date do not prove that LOC failed to return his son to his mother at DATE for which he was entitled to have him to stay .","...","A wanted notice has been issued for LOC nationally . As soon as he has been traced , final provision CARDINAL of Institutional Law no . CARDINAL of DATE on the legal protection of minors can be applied . \u201d","In an order of CARDINAL DATE , the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility . He found that this was not possible under the case - law , as the only offences that could be committed in such circumstances were criminal contempt and extortion . In a further order dated DATE the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt , for the following reasons :","\u201c ... As regards an international search and arrest warrant against A.U.A. , this issue was resolved by LAW in its decision of DATE . No new facts have emerged since then that would justify reclassifying the offence . Under no circumstances can it amount to \u2018 false imprisonment\u2019 , as the judgment of DATE on the abduction of minors makes clear . In that judgment , the court held : \u2018 The fact that a father has taken his minor child with him solely in order to enjoy its company can not amount to the offence of child abduction\u2019 ...","Lastly , as to the suspected offence of criminal contempt , no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties . Consequently , ORG would not act on such a warrant , as it would not be valid in law . \u201d","An appeal by the first applicant was dismissed by FAC on DATE .","The first applicant sought amparo relief under LAW ( right to a fair hearing ) , CARDINAL ( right to life and mental and physical integrity ) and CARDINAL ( right to liberty and security ) of the LAW , and LAW on the Rights of the Child of DATE . In a decision of DATE , ORG dismissed her appeal as manifestly ill - founded , holding that she had not stated why she disagreed with the reasoned decisions of the lower courts .","At the end of the investigation , on DATE , ORG investigating judge no . CARDINAL issued a provisional discharge order dismissing the charges against A.U.A. However , he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets . He also made a final order dismissing the charges against the members of LOC \u2019s family who had been implicated by the first applicant . The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter \u2019s absence from GPE had prevented his being questioned or formally charged in accordance with LAW of LAW . An appeal by the first applicant was dismissed by FAC on DATE .","The first applicant lodged an amparo appeal against those decisions with ORG , in which she alleged violations of LAW ( right to liberty and security ) , taken together with Articles CARDINAL ( rights to private life and family privacy ) , CARDINAL ( right to a fair hearing ) and DATE ( social , economic and legal protection of the family and children ) of the LAW . She also relied on LAW . In her appeal , she complained in particular of the investigating judge \u2019s systematic refusal to issue an international search warrant for her child , a refusal which , she said , was in breach of the positive duty to protect children and families . She also alleged a violation of LAW of DATE , which requires GPE to take measures to combat the illicit transfer and non - return of children abroad . In her submission , by refusing to take any investigative steps , the investigating judge had directly infringed both her and her son \u2019s right to private and family life , and her right to judicial protection , as guaranteed by LAW .","In a decision of CARDINAL DATE , ORG dismissed the amparo appeal as unfounded , holding that the first applicant had confined herself to contesting the decisions of the criminal courts which , in reasoned and well - founded decisions , had decided to make a provisional discharge order in respect of her criminal complaint of child abduction , while renewing certain preventive measures .","In connection with an appeal by the first applicant to FAC against one of his decisions , investigating judge no . CARDINAL said in a report to FAC on DATE :","\u201c ... The purpose of criminal proceedings is to prosecute the offence and , if appropriate , to punish the perpetrators . However , an investigating judge can not , under any circumstances , allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband \u2019s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings . In the present case , all that has been proved so far is that A.U.A. did not return his son GPE to his mother at the end of the period he was allowed by the family court . \u201d","An application for an order requiring investigating judge no . CARDINAL to stand down was dismissed in a decision of DATE . In a decision of CARDINAL DATE , an application for the proceedings to be declared null and void was likewise dismissed .","In a judgment of CARDINAL DATE , ORG withdrew parental responsibility from LOC and awarded the first applicant full parental responsibility . It gave the following reasons for its decision :","\u201c ... Having considered the evidence , the ORG has decided to grant the applicant \u2019s application . ... the case file shows that , after continually failing to comply with the access arrangements ( see this ORG \u2019s decision of DATE ) , the respondent did not return the child to its mother at DATE stipulated in the decision of DATE . Furthermore , since DATE , the whereabouts of both father and child have been unknown , which means that the child has been removed from the applicant \u2019s custody in breach of a court order . Such conduct can only be described as very serious , as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up , thereby depriving it both now and then of its mother \u2019s love and protection ... at the most tender of ages , with the serious harm which that entails ... Thus , by putting his own interests before those of his child , [ A.U.A. ] has acted in a manner that is seriously detrimental to the child \u2019s welfare ... \u201d","According to a psychologist \u2019s report produced by the first applicant in DATE , LOC first made contact with her through a telephone call in which he imposed various conditions for the child \u2019s return , threatened her and used the prospect of her not seeing her son again as blackmail . On DATE the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion . On DATE Vigo investigating judge no . CARDINAL made a provisional discharge order . On an appeal by the first applicant , that order was quashed by FAC in a decision of DATE .","On DATE the first applicant saw her son for the first time since his abduction in DATE . On DATE A.U.A. voluntarily appeared before the investigating judge , who , after hearing his representations , decided not to order his detention pending trial . Finally , on DATE the first applicant was able to recover her child with police assistance on LOC \u2019s return to ORG with the child . She said that for a time she was forced to go into hiding with her son in a shelter for women .","On DATE ORG granted A.U.A. access . As he was prevented from exercising that right , A.U.A. lodged a criminal complaint with the ORG investigating judge against the first applicant and her parents alleging aggravated contempt .","The relevant provisions of the LAW read as follows :","\u201c Provisions relating to the fundamental rights and the freedoms recognised by the LAW shall be construed in accordance with LAW and international treaties and agreements on human rights that have been ratified by GPE . \u201d","\u201c CARDINAL . Everyone \u2019s right to honour and to private and family life ... shall be protected .","... \u201d","\u201c CARDINAL . Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests ; in no circumstances may there be any denial of defence rights .","... \u201d","\u201c Children shall enjoy the protection provided for in the international agreements safeguarding their rights . \u201d","\u201c Once officially published in GPE , international treaties that have been validly concluded shall be part of the domestic legal order . ... \u201d","The relevant provisions of the Convention on the Rights of the Child [ GPE ratified this instrument on DATE . GPE signed it on DATE , but have not yet ratified it ] provide as follows :","\u201c CARDINAL . DATE States Parties shall take measures to combat the illicit transfer and non - return of children abroad .","To this end , GPE Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements . \u201d","The relevant provisions of this convention [ GPE ratified this instrument on DATE and GPE on DATE ] provide as follows :","\u201c The objects of the present Convention are :","( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and","( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . \u201d","\u201c Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention . For this purpose they shall use the most expeditious procedures available . \u201d","\u201c The removal or the retention of a child is to be considered wrongful where :","( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and","( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .","The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . \u201d","\u201c A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities .","... \u201d","\u201c ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .","In particular , either directly or through any intermediary , they shall take all appropriate measures :","( a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;","( b ) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;","( c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;","( d ) to exchange , where desirable , information relating to the social background of the child ;","( e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;","( f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organising or securing the effective exercise of rights of access ;","( g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;","( h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;","( i ) to keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . \u201d","\u201c Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child \u2019s habitual residence or to ORG of any other ORG for assistance in securing the return of the child .","... \u201d","\u201c The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .","If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... \u201d","\u201c Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .","The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .","Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . \u201d","\u201c Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :","( a ) NORP the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or","( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .","The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .","In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child \u2019s habitual residence . \u201d","The relevant provisions of this PERSON provide :","\u201c Minors shall enjoy the rights afforded them by LAW and international treaties ratified by GPE , in particular , LAW on the Rights of the Child , and the other rights guaranteed by domestic legislation ...","This law , its implementing provisions and other statutory provisions concerning minors shall be construed in accordance with the international treaties ratified by GPE and , in particular , the Convention on the Rights of the Child of DATE .","The public authorities shall guarantee compliance with the rights of minors and shall ensure their decisions comply with this law and the aforementioned international instrument . \u201d","Pursuant to final provision CARDINAL of the aforementioned PERSON on the legal protection of minors , a second paragraph was added to LAW , which provides as follows :","\u201c The functions of guardianship constitute a duty . They shall be performed for the benefit of the person for whom the guardian has been appointed and subject to the protection of the judicial authorities .","The measures and action contemplated by LAW may also be ordered by the court , on its own initiative or on the application of any interested party , in all cases of de facto or de jure guardianship or custody of minors , ... if their interest so requires . \u201d","Article CARDINAL of the Civil Code provides as follows :","\u201c The court shall , on its own initiative , or on an application by the child , a parent or the public prosecutor , order the following measures :","...","( CARDINAL ) appropriate action on a transfer of custody to avoid the unsettling the child in a way that is harmful ;","( CARDINAL ) NORP in general , any other action it considers expedient to remove the child from danger or prevent it coming to harm .","All such measures may be ordered in any civil or criminal proceedings ... \u201d","The provisions read as follows :","\u201c Responsibility for dependent minors shall be vested in their mother and father .","Parental responsibility shall always be exercised in the child \u2019s interest and in accordance with its personality ; it shall include the following powers and duties :","( CARDINAL ) to provide the child with protection , company , food , an upbringing and proper guidance ;","( CARDINAL ) NORP to represent the child and administer its property ;","...","Parents may seek judicial assistance when exercising their parental responsibility . ... \u201d","\u201c Parents in whom parental responsibility is vested shall represent their dependent minor children in legal matters .","... \u201d","In general , the NORP courts have refused to characterise a failure by a person with parental responsibility for a minor to return the child as false imprisonment or kidnapping , offences under ORG CARDINAL to CARDINAL of LAW carrying CARDINAL ten years\u2019 imprisonment . Under the case - law , a person guilty of such conduct may only be prosecuted for criminal contempt or extortion under LAW , for which the punishment is TIME imprisonment .","Institutional Law no . CARDINAL\/CARDINAL of DATE amended the provisions of ORG dealing with the abduction of minors .","As regards the position under the criminal law , the explanatory memorandum to the PERSON indicated that a clearly worded provision , creating a separate offence from the generic offence of criminal contempt , had become necessary when the person guilty of removing or failing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or to another person or institution in the child \u2019s interest .","The PERSON inserted a new LAW bis in LAW , worded as follows :","\u201c CARDINAL . A parent who , without any justification , abducts his or her minor child shall be liable on conviction to CARDINAL years\u2019 imprisonment and shall forfeit his or her parental responsibility for DATE .","For the purposes of this LAW , the following acts shall be deemed to constitute abduction :","( i ) transferring a minor from his place of residence without the consent of the parent with whom he or she habitually resides or the persons to whom or institutions to which custody of the minor has been granted ;","( ii ) failing to return a minor in material breach of an obligation arising under a judicial or administrative decision .","NORP If the minor is removed from GPE or a condition is imposed for its return , the sentence shall be in the upper CARDINAL of the range set out in paragraph CARDINAL .","...","The penalties stated in this Article shall also apply to any person from whom the minor is descended or any relative of the parent by blood or marriage up to the second degree who has committed the aforementioned acts . \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60325","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2002,"docname":"CASE OF GAWEDA v. POLAND","importance":1,"conclusion":"Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["On DATE the ORG dismissed the applicant 's request for registration of the title of a periodical , ORG A NORP Moral Tribunal ( PERSON spo\u0142eczno - polityczny , europejski s\u0105d moralny ) to be published in PERSON . The court considered that in accordance with LAW and the Ordinance of the Minister of Justice on the registration of periodicals , the name of a periodical should be relevant to its contents . The name as proposed by the applicant would suggest that a NORP institution had been established in GPE , which was untrue and would be misleading to prospective buyers . Moreover , the proposed title would be disproportionate to the periodical 's actual importance and readership as it was hardly conceivable that a periodical of a NORP dimension could be published in GPE . The court went on to state :","\u201c ... the applicant stubbornly applies for registration of periodicals the titles of which would suggest the existence in GPE an institution of international character ( such as ORG or ORG ) , and when requested by the court to change the titles he declares that he will not do so . \u201d","On DATE ORG dismissed an appeal by the applicant against this decision . The court stated , inter alia , that in the proceedings before the first - instance court the applicant had been requested to change the proposed title by deleting the term \u201c NORP Moral Tribunal \u201d , but he had refused to do so .","Subsequently , the applicant made a number of further applications for the registration of periodicals . He succeeded in obtaining CARDINAL registrations .","On DATE the Minister of ORG refused to grant leave for an extraordinary appeal against the decision of DATE , finding that it was in accordance with the law .","On DATE the ORG dismissed a new request by the applicant for registration of a periodical , GPE \u2013 A DATE enemy of GPE . The court noted that at a hearing on DATE the applicant , when requested to change the proposed title so as to remove its negative character , had refused to do so . The court considered that registration of the periodical with the proposed title would be harmful to NORP reconciliation and detrimental to good cross - border relations .","The applicant appealed against this decision , submitting that it was incomprehensible and amounted to censorship .","On DATE ORG upheld the contested decision . The court observed that the title , as proposed by the applicant , suggested that the proposed periodical would concentrate unduly on negative aspects of NORP relations . The court considered that such a title would be in conflict with reality in that it would give an unbalanced picture of the relevant facts . The court further considered that the lower court had been justified in refusing registration on the ground that the title would be detrimental to NORP reconciliation and to good relations between GPE and GPE .","Section CARDINAL of LAW of DATE requires registration of a press title by the regional court as a prerequisite for publication of a periodical . A request for registration should contain the proposed title , the editor 's address , the name of the editor - in - chief and other personal data , the name and address of the publishing house and information on how often the periodical would be published . The decision on registration is to be taken within DATE of the date on which the request has been filed with the court . The court must refuse registration if the request does not contain the required information or if the proposed title would prejudice a right to protection of the title of any existing periodical . LAW provides that a person who publishes a periodical without the required registration is liable to a fine .","Section CARDINAL(a ) of LAW authorises the Minister of ORG to issue an ordinance specifying the manner in which the press register should be run .","Section CARDINAL of the Ordinance of the Minister of Justice on the registration of periodicals , as applicable at the material time , provided that registration was not possible if it would be \u201c inconsistent with the regulations in force and with the real state of affairs \u201d ( \u201c niezgodny z przepisami prawa lub z istniej\u0105cym stanem rzecz \u201d ) .","On DATE the ordinance was amended in that section CARDINAL was deleted ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-89388","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2008,"docname":"CASE OF MIKHANIV v. UKRAINE","importance":3,"conclusion":"Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","The applicant is a former vice - president of ORG ( ORG ) , a ORG - owned company trading in grain .","On DATE ORG ( the \u201c ORG \u201d ) opened a criminal investigation in respect of the applicant and another employee of ORG on charges of aggravated embezzlement of public funds by means of fraudulent transactions for the amount of MONEY ( ORG ) via the private company ORG ( \u201c the ORG case \u201d ) . The applicant was also accused of producing a copy of a forged university degree certificate when applying in DATE for a position in the civil service .","The applicant was arrested on DATE .","On DATE the investigator appointed to deal with his case formally charged the applicant with aggravated embezzlement of public funds and forgery .","On DATE the Deputy Prosecutor General ordered the applicant \u2019s detention on remand for DATE on the grounds that the charges were serious and that the applicant might abscond and pervert the course of justice . The applicant appealed against his detention to the ORG of GPE ( \u201c the ORG \u201d ) .","On DATE the ORG extended the applicant \u2019s detention to DATE .","On DATE the ORG opened CARDINAL more criminal cases against the applicant for aggravated embezzlement of public funds by means of fraudulent transactions via ORG and ORG ( respectively \u201c the PERSON case \u201d and \u201c the PERSON case \u201d ) . These cases were joined to the ORG case .","On DATE ORG , on the applicant \u2019s appeal , revoked the detention order of DATE . The court found that there was no evidence that the applicant would abscond or pervert the course of justice if released . In particular , the applicant had his permanent residence in GPE and financially supported his wife and a child living in GPE . He had never failed to respond to a summons or attempted to obstruct the investigation . Moreover , the court found that , when ordering the applicant \u2019s detention , the prosecution had not taken into account the fact that the applicant suffered from a number of serious illnesses .","On DATE , without releasing him from the Kyiv SIZO , the investigator placed him under arrest again , this time on suspicion of involvement in the PERSON case . The Deputy General Prosecutor , on that same date , ordered the applicant \u2019s detention on remand for a period of DATE on the ground that he was suspected of a serious offence and that he might abscond or pervert the course of justice .","On DATE the applicant was officially charged with embezzlement of public funds in the PERSON case .","On DATE the Deputy Prosecutor General lodged a request for supervisory review ( protest ) with ORG against ORG decision of DATE .","On DATE the ORG of ORG quashed ORG decision of CARDINAL DATE and upheld the detention order of DATE . It found that the applicant \u2019s wife and CARDINAL children lived in GPE . In GPE the applicant lived with his partner and their son in GPE whilst being registered in Dnipropetrovs\u2019k . He had CARDINAL registered addresses ( in GPE and GPE ) , CARDINAL international passports ( CARDINAL NORP and CARDINAL NORP : ordinary and official ) and had an account with an NORP bank , and was therefore likely to abscond if released . Moreover , ORG held that the first - instance court had overlooked the fact that the applicant in his appeal had requested the \u201c replacement of the preventive measure \u201d rather than the \u201c annulment of the detention order \u201d and , therefore , this appeal fell outside the scope of judicial review at the investigation stage .","On DATE and CARDINAL DATE the ORG prolonged the applicant \u2019s pre - trial detention respectively to DATE and DATE .","On DATE the investigator , with a view to preventing any communication between the applicant and his co - accused , ordered the applicant \u2019s transfer from the Kyiv SIZO to ORG no . CARDINAL ( ORG \u043e\u0431\u043b\u0430\u0441\u043d\u0438\u0439 \u0441\u043b\u0456\u0434\u0447\u0438\u0439 \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u2116 CARDINAL\u201cthe GPE \u201d ) for the period from DATE to DATE .","The applicant was transferred to the GPE on DATE .","On DATE the ORG prolonged the applicant \u2019s detention to DATE .","On DATE the investigator ordered the applicant \u2019s transfer back to the Kyiv SIZO .","Meanwhile , on an undetermined date in DATE , the applicant \u2019s lawyer appealed against the prosecutor \u2019s detention orders of DATE and DATE .","On DATE the appeal was examined by ORG in the presence of the prosecutor and the applicant \u2019s lawyer . The court held that , although the domestic law allowed the detention of a defendant charged with aggravated embezzlement of public funds on the sole basis of the gravity of the charges , the other grounds provided for by the law should also be taken into account . ORG found , in particular , that there was no compelling evidence that if released the applicant would abscond or pervert the course of justice . The applicant had permanent residence in GPE and could not lawfully leave it since his international passport had expired . The applicant lived with his wife and CARDINAL children in GPE . He also financially supported his father and mother - in - law , who lived in GPE . Moreover , the applicant suffered from serious health problems . ORG considered the medical experts\u2019 report produced by the prosecution , to the effect that the applicant was fit for detention in the remand facilities , unreliable in the light of the fact that during his detention in the GPE the applicant had not been administered any of the drugs prescribed for him . On the basis of the above findings the ORG quashed the detention orders of DATE and DATE . On DATE the Deputy Prosecutor General lodged a request for supervisory review against this decision .","On DATE the applicant , while still detained in the GPE , was arrested by the investigator on suspicion of involvement in the PERSON case . On DATE the applicant was officially charged with the said offence .","On DATE the ORG extended the applicant \u2019s pre - trial detention to DATE .","On DATE the ORG of ORG , following the prosecution \u2019s request for supervisory review , quashed ORG decision of CARDINAL December CARDINAL , citing essentially the same arguments as in its decision of DATE . The court also stated that there was no reason why the applicant could not be detained on the sole basis of the gravity of the charges , as provided for by LAW ORG .","On DATE the ORG extended the applicant \u2019s detention DATE .","On DATE the ORG instituted another criminal case against the applicant and PERSON respectively for giving and taking bribes . This case was joined to the criminal case against the applicant .","On DATE the applicant and his lawyer were granted access to the CARDINAL case file . The applicant , however , refused to study the case file , alleging that the relevant formalities had not been completed . On DATE the investigator rejected this complaint as unsubstantiated .","On DATE the prosecution lodged the bill of indictment with ORG ( the former ORG ) .","On an unknown date the applicant requested and was granted access to the case file , a right which he and his lawyer exercised from DATE to DATE .","On an unknown date in DATE ORG referred the applicant \u2019s case file to ORG of GPE for examination .","On DATE the Deputy Prosecutor General decided that only the ORG case was ready for trial and withdrew the remainder of the charges because they required further pre - trial investigation .","On DATE an amended bill of indictment was lodged with the Svyatoshynsky ORG ( \u201c the Svyatoshynsky Court \u201d ) .","On DATE a preparatory hearing was held before a judge of ORG . The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand . The applicant \u2019s request for release was rejected on the ground that , although he had already spent a total of DATE in detention , the period of his detention during the investigation had not exceeded DATE and thus was in compliance with LAW ORG . The judge considered that the applicant \u2019s transfer to the GPE was necessary for the proper conduct of the investigation and that there was no indication of ill - treatment . He concluded that there were no medical or other special circumstances warranting the applicant \u2019s release .","The proceedings before the trial court started on DATE .","At a hearing on DATE ORG dismissed the applicant \u2019s request for release , stating that there were no new circumstances warranting a re - evaluation of the preventive measure imposed . The court also granted the prosecution \u2019s motion to adjourn the hearing until DATE to allow the new prosecutor to familiarise himself with the case file .","On DATE the Svyatoshynsky Court of its own motion decided that further pre - trial investigation was necessary . The court also ordered the applicant \u2019s release on an undertaking not to abscond .","On DATE the applicant tried to leave GPE for GPE by train but was stopped on the border and sent back to GPE .","On an unspecified date the prosecution appealed against the remittal of the case for further investigation , considering that it was ready for examination on the merits . The applicant also challenged the remittal , stating that it was motivated by the court \u2019s reluctance to acquit him . On DATE ORG granted the appeals , quashed the decision of DATE and ordered that the trial proceedings in the applicant \u2019s case be resumed .","The hearings before ORG resumed on DATE . On DATE the trial court ordered that by DATE the ORG was to carry out additional enquiries in order to collect further evidence . However , it was not until DATE that the authorities produced the requested evidence in court and the trial could resume .","On DATE ORG acquitted the applicant of the charges brought against him . The prosecution appealed . On DATE ORG upheld the applicant \u2019s acquittal .","On DATE ORG , following the appeal of the ORG , reversed the decisions of the lower courts and remitted the case for further investigation .","The case file was received by the ORG on an unknown date in DATE . On DATE the investigator amended the applicant \u2019s charges in accordance with the new DATE LAW . On DATE the applicant was summoned to give evidence but failed to appear . Since then , according to the ORG \u2019s submissions , the ORG has carried out a number of forensic examinations , questioned witnesses and seized documentary evidence . Further documents have been requested and received from NORP authorities .","On an unknown date the applicant made use of the recent amendments to the ORG by challenging the initial decision of the ORG of DATE to institute criminal proceedings against him . On DATE ORG allowed this application and revoked the impugned decision . The prosecution appealed .","DATE . On DATE ORG reversed ORG decision and rejected the applicant \u2019s application .","On DATE and CARDINAL DATE the applicant requested the investigator for termination of the criminal proceedings as time - barred . In reply the investigator informed the applicant that his requests would be examined and the decision would be adopted in accordance with the relevant law .","On DATE the applicant was charged with abuse of power and forgery and ordered not to leave his place of residence .","The investigation in the applicant \u2019s case is still pending .","On DATE the applicant \u2019s lawyer , referring to LAW , filed an administrative complaint about the inactivity of the administration of GPE , namely for their failure to release the applicant after DATE , when the overall term of his detention had reached DATE . On DATE the Shevchenkivsky ORG of GPE refused to entertain this complaint on the ground that the lawyer \u2019s authority to act issued by the applicant was limited to the criminal proceedings before ORG . This decision was not appealed against by the applicant .","The applicant \u2019s similar administrative complaint against the ORG was declared inadmissible on DATE by ORG on the ground that such complaints fell to be examined in the criminal proceedings which at that time were pending before ORG .","After the applicant \u2019s arrest in DATE his health started to deteriorate . According to ORG decision of CARDINAL DATE the applicant started to receive medical treatment in the GPE for his illnesses as early as DATE .","On DATE , in response to the applicant \u2019s numerous requests , the investigator dealing with his case ordered that a forensic medical report on the applicant \u2019s state of health be obtained . In its report no . CARDINAL of DATE , a commission of ORG ( PERSON \u043c\u0456\u0441\u044c\u043a\u0435 \u0431\u044e\u0440\u043e \u0441\u0443\u0434\u043e\u0432\u043e-\u043c\u0435\u0434\u0438\u0447\u043d\u0438\u0445 \u0435\u043a\u0441\u043f\u0435\u0440\u0442\u0438\u0437 ) stated that the applicant suffered from a post - traumatic encephalopathy , duodenal ulcer with reflux and heart pathology . The applicant was prescribed a diet and heart drugs . In conclusion the experts suggested that the applicant \u2019s encephalopathy be examined in a specialised neurological institution .","On DATE an expert commission of ORG ( \u041a\u0438\u0457\u0432\u0441\u044c\u043a\u0438\u0439 \u0446\u0435\u043d\u0442\u0440 \u0441\u0443\u0434\u043e\u0432\u043e-\u043f\u0441\u0438\u0445\u0456\u0430\u0442\u0440\u0438\u0447\u043d\u0438\u0445 \u0435\u043a\u0441\u043f\u0435\u0440\u0442\u0438\u0437 ) , with the participation of a neuropathologist from the district hospital , drew up a forensic report ( no . CARDINAL ) at the request of the investigator . The commission found that the applicant suffered from post - traumatic encephalopathy ( after a head injury suffered at DATE ) . According to the applicant this disease caused him severe headaches and hand tremor . The applicant was prescribed the relevant drugs . He was found fit for detention on remand subject to the prescribed treatment .","On DATE the applicant was transferred to the GPE .","On DATE the applicant \u2019s lawyer asked the Governor of the GPE whether they had provided the applicant with the medicines prescribed for him .","On DATE the Governor of the Zhytomyr ORG issued a letter , stating that on his admission the applicant had been examined by the prison doctors , who had diagnosed him as suffering from encephalopathy . Subsequently he had been examined by the cardiologist who confirmed the above heart pathology diagnosis of the GPE experts . The Governor stated that , although the content of the above medical experts\u2019 reports had been made known to the prison authorities , the drugs prescribed in those reports were not in the possession of the GPE and thus could not be administered to the applicant .","On DATE , after the applicant \u2019s transfer from the NORP ITU , he was examined by a doctor from the medical department of the GPE , who found that he suffered from headaches , heart and stomach pains . The applicant was prescribed CARDINAL drugs , including those specified in the experts\u2019 reports .","The relevant domestic law is summarised in the judgment of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , ORG CARDINALII ) ."],"violated_articles":["3","5","6"],"violated_paragraphs":["5-1","5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78441","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF SELEK v. TURKEY","importance":4,"conclusion":"Preliminary objection dismissed (exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE .","The applicant was a civil servant at LOC .","On DATE he was arrested by police officers from ORG on suspicion of forgery . He admitted to the charges before the police .","On DATE the applicant was brought before the investigating judge at the GPE ORG , who ordered his detention on remand .","On DATE the public prosecutor filed an indictment with the GPE CARDINALth ORG against the applicant and CARDINAL co - accused ( ORG , PERSON and GPE ) , requesting that they be punished for committing forgery under ORG CARDINAL \u00a7 CARDINAL and CARDINAL of LAW . The public prosecutor further decided that the PERSON on the Prosecution of Civil Servants ( Memurin Muhakemeti Kanunu ) did not apply to this case as the offence was ordinary .","On DATE ORG commenced the proceedings . On DATE it heard statements from the applicant and CARDINAL other co - defendants . The applicant denied the charges against him , alleging that his statement in the police station had been extracted from him under duress . At the following hearing on DATE , the court released the applicant and CARDINAL co - accused from detention on remand . It further decided to prolong , in absentia , the arrest warrant issued in respect of ORG as he had absconded .","On DATE the GPE public prosecutor launched an investigation concerning the applicant \u2019s alleged abuse of office in relation to the forgery . During the course of the investigation , the public prosecutor decided that he had no jurisdiction over the case as the applicant was a civil servant . Accordingly , he sent the file to ORG ( GPE PERSON ) , pursuant to the provisions of the PERSON on the Prosecution of Civil Servants , in order to seek authorisation to prosecute the applicant .","On DATE ORG decided not to authorise the applicant \u2019s prosecution .","On DATE ORG put aside this decision and ordered that the applicant be tried . Subsequently , on DATE the public prosecutor filed another indictment with the Istanbul CARDINALth Criminal Court accusing the applicant of abuse of office .","On DATE the CARDINALth ORG decided to join the case pending before it to the proceedings before ORG , and sent the case file to the latter .","In the course of the proceedings , during the QUANTITY hearings held DATE and DATE , the applicant \u2019s lawyer explicitly asked the court to separate his client \u2019s case from the others and to conclude it . The court each time rejected these requests given the search for ORG , and decided to postpone the hearings , awaiting the outcome of the arrest warrant . In particular , at one of these hearings on DATE , the applicant \u2019s lawyer informed the court that he had heard that ORG had escaped abroad . He further stated that his client had been victimised as a result of the prolongation of the proceedings .","On DATE the court decided that the criminal proceedings concerning ORG should proceed separately as he could not be found . DATE the court convicted the applicant and sentenced him to QUANTITY months\u2019 imprisonment and a fine . The imprisonment was then commuted to a fine and its execution was suspended in accordance with LAW no . CARDINAL ( the PERSON on the execution of sentences ) .","Both the applicant and the public prosecutor appealed against the decision , the applicant alleging that there was no concrete evidence on which he could be convicted .","On DATE ORG rejected the reasons for appeal but quashed the judgment on account of a miscalculation of the amount of the fine imposed on the applicant . ORG did not order a retrial , but corrected the amount by reducing the fine and upheld the judgment with this amendment ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67194","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2004,"docname":"CASE OF \u00c7EL\u0130K AND \u0130MRET v. TURKEY","importance":3,"conclusion":"Violation of Art. 3 with regard to first applicant;No violation of Art. 3 with regard to second applicant;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicants , PERSON and PERSON were born in DATE and DATE respectively and live in Batman .","On DATE the applicants , accused of acting as couriers for the ORG , were arrested by police officers from ORG .","Prior to their detention in police custody , the applicants were examined by a doctor who found that they did not bear the marks of any injury . The applicants were then taken to ORG where they were detained and questioned .","On DATE the public prosecutor authorised the applicants ' continued detention until DATE .","On DATE and CARDINAL DATE the applicants were again examined by CARDINAL doctors who found that there was no evidence that the applicants had been illtreated .","The applicants allege that they were subjected to various types of torture and inhuman treatment during their detention in police custody . They claim they were blindfolded and immersed in high pressure cold water . They had to stand naked and electric shocks were administered to various parts of their bodies including their sexual organs . They state that their testicles were squeezed and that their hands and legs were tied . They were severely beaten and deprived of food and water and prevented from using toilet facilities . They were also kept in isolation , subjected to unbearable noises , insulted and threatened with death . From time to time , police officers applied medication to their injuries .","On DATE the applicants were brought before the Batman public prosecutor and then before ORG ) . According to a protocol dated DATE signed by CARDINAL police officers , the applicants bumped into each other while they were getting out of the police car and PERSON fell . It is to be noted that the applicants deny the authenticity of this protocol .","Both before the public prosecutor and ORG the applicants denied the veracity of the statements that had been taken from them by the police and stated that they had been subjected to ill - treatment during their detention in police custody . The judge of ORG observed that there was a violet - coloured bruise around PERSON left eye . She also noted the applicants ' allegation that their statements were incorrect and had been obtained under duress . ORG ordered the applicants ' detention on remand .","On DATE the applicants were taken to the Batman prison .","On DATE the applicants were examined by the prison doctor , Dr. PERSON , who noted that there were marks on Abdurrahman \u00c7elik 's body resulting from the physical violence inflicted on him . He reported the following in respect of Abdurrahman \u00c7elik :","\u201c There is a bruise of QUANTITY underneath the left eye . Furthermore , there are CARDINAL petechial lesions on both right and left inguinal areas . \u201d","In respect of PERSON , Dr. PERSON noted that the latter 's body did not bear any injury resulting from physical violence . The doctor further reported the following regarding PERSON :","\u201c There is a scar of QUANTITY in diameter on the left side of the lower lip on the exterior . \u201d","On DATE , the applicants filed petitions with ORG and requested the latter to annul the order for their detention on remand . They emphasised , inter alia , that the statements taken by the police were false as they had been signed under duress","On DATE CARDINAL of the applicants , PERSON was examined by a commission of medical experts from ORG ( tabipler odas\u0131 ) . According to the report drafted by the commission , the applicant suffered somatic and psychological problems . The commission opined that the medical findings were a result of physical ill - treatment inflicted on the applicant .","On DATE the public prosecutor at ORG filed a bill of indictment charging the applicants under LAW of LAW with aiding and abetting the members of the ORG .","On DATE the applicants ' representative filed a petition with ORG , alleging that the applicants had been tortured while in detention at the Batman Security Directorate . He requested the court to order ORG to send the prison doctor 's medical reports of CARDINAL DATE .","On DATE the Batman prison administration submitted copies of the medical reports to the office of the Batman public prosecutor who transferred them to ORG .","On DATE ORG held the first hearing against the applicants . Before the court , the applicants denied the charges and stated , inter alia , that they were forced to sign statements while blindfolded at ORG . They also denied the veracity of the content of these statements .","ORG read out the medical reports of CARDINAL DATE drafted by the doctor of the Batman prison and asked the applicants ' representative to make comments if he wished . The representative submitted that he had no objections to their contents . He further added that there was no evidence against the applicants other than the statements taken by the police at ORG and that these statements were inadmissible as evidence against the applicants given that they had been obtained through ill - treatment . With reference to the medical report of CARDINAL DATE , the applicants ' representative formally requested the court to initiate a criminal investigation ( su\u00e7 duyurusu ) against the police officers responsible for the ill - treatment of the applicants and against the doctor who examined them following their release from police custody , for failing to note their injuries in his medical report of CARDINAL DATE .","ORG dismissed the request of the applicants ' representative . It decided that the applicants had to lodge their complaints themselves with the local public prosecutor 's office . It further decided that that there was no ground for the continued detention of the applicants and ordered their immediate release .","On DATE ORG acquitted the applicants . The court held that there was no evidence against the applicants , other than the statements taken at ORG which was insufficient to ground a conviction .","On DATE the International Law and Foreign Relations Directorate of ORG sent a letter to the public prosecutor 's office in Batman informing the latter about the applicants ' allegations before ORG .","Following the letter of CARDINAL DATE , the Batman public prosecutor initiated a preliminary investigation into the applicants ' allegations . He took statements from the accused police officers who denied the charges against them . The police officers alleged that the applicants sustained their injuries on account of the crowd in the prison vehicle while they were being taken to ORG .","On DATE the Batman public prosecutor filed a bill of indictment with ORG ( A\u011f\u0131r Ceza Mahkemesi ) charging QUANTITY police officers , who were on duty at the Batman Security Directorate at the relevant time , with inflicting ill - treatment on the applicants . The charges were brought under LAW . The defendants were accused of illtreatment of the applicants in order to obtain a confession from them . The public prosecutor however stated in the indictment that there was not sufficient evidence against the police officers which could prove that the applicants had been ill - treated in police custody .","The Batman Assize Court held CARDINAL hearings in the case against the police officers between DATE and CARDINAL DATE . The court heard oral evidence from the accused police officers , the witnesses and the applicants .","On DATE the ORG acquitted the accused police officers holding that there was insufficient evidence to conclude that the accused had ill - treated the applicants in police custody .","On DATE the ORG judgment became final .","A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE , no . LOC and QUANTITY , \u00a7 CARDINAL , DATE and El\u00e7i and Others v. GPE , no . CARDINAL\/CARDINAL and LOC , \u00a7 \u00a7 CARDINAL and CARDINAL , CARDINAL DATE ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99409","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2010,"docname":"CASE OF ADAMCZUK v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE PERSON instituted civil proceedings for the dissolution of a co - ownership before ORG .","On DATE the case was transmitted to ORG .","On CARDINAL DATE the parties to the proceedings ( the applicant , ORG GPE , GPE , GPE , GPE ) lodged with the court their proposal for the dissolution of the co - ownership .","On DATE the court stayed the proceedings as PERSON had died . On CARDINAL DATE PERSON 's representative requested the court to resume the proceedings since PERSON 's heirs had been determined by ORG decision of DATE .","On DATE the court summoned GPE and ORG ( \u201c the plaintiffs \u201d ) to participate in the proceedings .","NORP Several subsequent hearings , namely of DATE , CARDINAL DATE , DATE and DATE were adjourned as some of the parties had not been properly summoned .","On DATE the court held a hearing and heard evidence from an expert as to the technical condition of the real property and possibilities of dividing it , and from some other parties , including the applicant .","On DATE the court decided to obtain another expert opinion .","On DATE the expert , PERSON , submitted an evaluation report on the real property in question .","CARDINAL subsequent hearings , scheduled for DATE and DATE , were adjourned as some of the parties had not been properly summoned .","On DATE a hearing was held . The applicant stated that the plaintiffs had erroneously declared their shares in the co - ownership and he evoked in this context the real property sale contract concluded in DATE between PERSON and GPE ( sellers ) and the members of the applicant 's family ( buyers ) . The court adjourned the hearing and obliged the parties to substantiate the above statement within DATE .","On DATE the court adjourned a hearing as the applicant and some other parties failed to appear , although they had been properly summoned .","On DATE the court adjourned a hearing as some of the parties had not been properly summoned and the applicant submitted a medical certificate justifying his absence .","On DATE the court held a hearing and heard evidence from some of the parties to the proceedings .","On DATE the court issued a preliminary decision ( postanowienie wst\u0119pne ) wherein it determined the co - owners and their shares in the real property .","On DATE the applicant appealed against the above decision .","On an unspecified date the court requested the applicant to rectify the formal lacunae in his appeal . On DATE the applicant complied with the court 's order .","On DATE ORG held a hearing and quashed the impugned decision .","On DATE the court adjourned a hearing as some of the parties had not been properly summoned .","DATE and DATE no actions were taken by the court apart from dealing with PERSON 's request for legal aid .","On DATE and DATE hearings were held and the court heard evidence from the plaintiffs and the applicant .","On DATE the court adjourned a hearing as CARDINAL of the plaintiffs failed to appear although he had been properly summoned .","The applicant requested an inspection of the real property .","On DATE the court summoned GPE to specify his and ORG 's shares in the co - ownership .","On DATE and DATE A.C. complied with the court 's order .","On DATE the court adjourned a hearing at the request of CARDINAL of the plaintiffs and the expert .","On DATE the court held a hearing and again heard evidence from the expert and summoned the parties to indicate the way in which the co - ownership should be dissolved .","On DATE the applicant sought the withdrawal of the judge dealing with his case .","On DATE ORG dismissed the applicant 's request . The applicant lodged an interlocutory appeal against this decision .","On DATE ORG dismissed the applicant 's interlocutory appeal .","On CARDINAL DATE a hearing was held at which some of the parties , including the applicant , requested the court to exempt them from court fees and appoint a legal - aid lawyer to represent them in future proceedings . The court ordered them to complete their request and submit information on their financial situation within DATE .","On DATE the court dismissed the above request as neither the applicant nor the other parties had submitted any information on their financial standing .","On DATE the court held a hearing . The applicant again challenged the ownership title of the plaintiffs .","On DATE the court ordered another expert opinion . The applicant lodged an interlocutory appeal against this decision but it was rejected as inadmissible .","On DATE the expert , ORG , submitted her opinion .","On DATE the court granted the applicant 's request for an inspection of the real property and adjourned the hearing , as in respect of CARDINAL of the parties there was no proof that the summons had been served .","On DATE the court dismissed a request by the applicant motion to provide security for the claim by putting on deposit a sum equivalent to the rents collected from the current tenants of the property . The applicant 's interlocutory appeal against this decision was rejected due to formal lacunae .","On DATE an inspection of the real property took place .","DATE and DATE the court held QUANTITY hearings at which it heard evidence from the parties and ordered them to indicate the manner in which the co - ownership should be dissolved .","On DATE the court decided to obtain another expert opinion to establish the possibilities of creating individual premises in the disputed real property . The applicant appealed against this decision but his appeal was rejected as inadmissible .","On DATE the expert returned the case file and informed the court that he would not be able to prepare the expert opinion for health reasons .","On DATE the court sent the case file to another expert and ordered him to prepare an expert opinion within DATE .","DATE . On DATE the court allowed the expert 's request for an extension of the time - limit for the submission of the expert opinion until DATE .","On DATE the case file was sent to ORG in connection with the proceedings before ORG .","On DATE the expert submitted his opinion . The proceedings are pending .","On DATE the applicant lodged a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) . On DATE ORG confirmed that the proceedings in question had indeed been lengthy . The court considered that an award of MONEY ( ORG ) would be adequate ( approx . CARDINAL ( ORG ) , according to the exchange rate at the relevant time ) . The court stated , inter alia , that the measures taken by ORG on DATE and DATE , CARDINAL DATE and DATE not only infringed the relevant provisions of the civil procedure code but also appeared to be futile , as some of them had had to be taken for a second time . The court further stated that the fact ORG had failed to establish the scope of the claim for DATE could only be explained by the fact that the court had contributed to the excessive length of the proceedings .","As the proceedings continued to be lengthy , on DATE the applicant lodged a second complaint under LAW . On DATE ORG confirmed that the proceedings in question had been lengthy and ordered ORG to conduct an immediate examination of the applicant 's motion for the inspection of the real property in question .","As the proceedings continued to be lengthy , on DATE the applicant filed another complaint under LAW . On CARDINAL DATE ORG dismissed the applicant 's complaint on the ground that there had been no undue delay in the proceedings DATE ( the date of the previous decision ascertaining that there had been an undue delay ) and the time of the lodging of the complaint by the applicant .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V ; NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22095","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2001,"docname":"JOHNSON v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress;Nicolas Bratza","text":["The applicant , PERSON , is a GPE national , who was born in DATE and living in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant ran a trout farm in ORG , GPE , which had been built with money lent by ORG plc ( \u201c the Bank \u201d ) . He lived on the farm LOC with his wife . In DATE , the ORG made a further advance of MONEY ( GBP ) ; this was increased to GBP CARDINAL,CARDINAL and then to GBP CARDINAL . The ORG \u2019s lendings were secured by a legal charge on the property which entitled the ORG to claim possession of the property in the event that the applicant and his wife did not comply with an agreed payment schedule .","The applicant and his wife failed to make payments . On DATE , the ORG brought proceedings against the applicant and his wife seeking possession of the farm . It also claimed a monetary sum in the amount of the money still owed to it . By DATE re - amendment of its Particulars of Claim , the ORG sought in the alternative a declaration that the property stood charged in equity ( in the event that the court agreed with the applicant \u2019s assertion that the legal charge was not valid ) .","The applicant and his wife initially filed a joint defence to the ORG \u2019s claim and acted without legal representation . Subsequently , they ceased to co - operate formally and separate amended Defences were submitted . The applicant \u2019s wife was seeking to argue that she had entered into the legal charge as a result of the undue influence of her husband , about which the ORG knew or should have known . In other aspects the applicant and his wife took identical positions , namely that the ORG \u2019s legal charge was invalid because it was blank at the time of execution and that the ORG had increased the amount of money lent to them without consultation and without their authority . They also pursued an identical counterclaim , claiming a declaration that the legal charge was invalid , damages for deductions wrongly made for bank charges and damages for negligence on the basis that the ORG had exercised undue pressure on them to borrow money from it rather than ORG with which they had also been in negotiation .","In DATE , the applicant and his wife separated .","The applicant and his wife sought separate representation . His wife was granted legal aid throughout the proceedings which followed . The applicant was granted legal aid for the purpose of defending the ORG \u2019s claims and making a counterclaim from DATE . As was the standard practice , his legal aid certificate was limited to obtaining further evidence and counsel \u2019s opinion on the merits of his defence and the merits and likely quantum of his counterclaim . It was necessary for the applicant to apply to extend his legal aid certificate if he wished legal representation for his trial .","In DATE or DATE , the trial was listed to start on DATE , and to take DATE . On DATE , counsel for the applicant gave the opinion that , while there was a reasonable prospect of establishing that the legal charge was invalid having regard to the fact that the details of the property were entered into the document schedule after the applicant and his wife had signed , there was no defence to the monetary claim and the applicant would be required as a practical result to sell the farm to meet the monetary judgment . The applicant \u2019s defence that he had not consented to the increase in the loan was entirely without substance while his counterclaim , even if well - founded ( which was not the case ) , was only worth MONEY . He concluded that \u201c it is not possible to say that it is reasonable for the ORG to support [ the applicant \u2019s ] case . I am quite satisfied that the costs of the defence of this action will far outweigh any benefit to the [ applicant ] \u201d .","On DATE , the applicant \u2019s application to extend legal aid for the trial was received by ORG . On DATE , ORG wrote to the applicant to inform him that it was considering whether to discharge his legal aid certificate because \u201c in view of ORG \u2019s Opinion it is not considered you have a reasonable prospect of success in this action \u201d . The letter indicated that if the applicant thought his legal aid certificate should not be discharged , he should write to the legal aid office within DATE of the date of the letter , and stated that ORG had asked the applicant \u2019s solicitor not to do any work in the meantime . The applicant received the letter on DATE .","On DATE , the applicant wrote to ORG stating why he considered his legal aid should not be discharged , submitting inter alia that :","\u201c The case is extremely complex with volumes of evidence , and documents , over DATE , with CARDINAL court appearances to date on pre - trial matters and discovery . At present I do not have my files , and evidence , and would explain that I can not cope with taking on such a mountain of paperwork , preparing my case , representing myself at such short notice , bearing in mind that the trial date is DATE for DATE . \u201d","On DATE , the applicant \u2019s legal aid certificate was discharged .","On DATE , the applicant sent ORG his notice of appeal against the decision to discharge his legal aid , and asked them to deal with the appeal without a hearing and using written information only .","On DATE , the trial began at ORG , with the applicant representing himself . The ORG and the applicant \u2019s wife were each represented by solicitors and counsel .","There had been CARDINAL pre - trial directions hearings . On DATE , the judge had ordered that Mr S. , the applicant \u2019s solicitor at the time the charge was made , be permitted to lodge a statement and that the applicant \u2019s accountant leave his working file in court . On DATE , the judge ordered that Mr S disclose his working file .","The trial concluded on DATE . On DATE , judgment was delivered in favour of the ORG , finding that the applicant \u2019s wife had not been subject to undue influence by her husband , that the ORG \u2019s loan had not been less advantageous than the one offered by the ORG and that the legal charge entered into by the applicant and his wife was valid . The judge ordered that the applicant and his wife give up possession of the property by DATE and pay the ORG the sum of ORG CARDINAL,CARDINAL.CARDINAL . He rejected the applicant \u2019s application for leave to appeal to ORG and also his application for a stay of execution of the possession order .","On DATE , the applicant appealed to ORG against the order and applied for a stay of execution of its possession order . He was assisted by his former solicitors in this process under the ORG and Assistance or Green Form scheme ( which provided for advice and assistance short of representation in court ) . His grounds of appeal were inter alia that the judge had erred in the orders made by him on DATE and DATE , alleging that the order concerning the accountant \u2019s file had the result that the ORG and his wife \u2019s lawyers had access to privileged documents and that Mr S. and a witness for the ORG had perjured themselves .","On DATE , ORG wrote to the applicant and indicated that his appeal would be dealt with shortly by the area committee . A second letter from the ORG dated DATE stated that the appeal would be considered by the area committee on DATE . On DATE , the applicant telephoned the ORG . On DATE , the ORG wrote to the applicant in connection with his appeal of DATE against the discharge of his legal aid certificate . The letter stated : \u201c I apologise for the fact that we did not action your faxed notice of appeal ( received in this office on DATE ) prior to ORG on DATE . I consider that we were at fault in either not processing the appeal prior to the hearing or , if that was not possible , at least notifying [ the applicant ] of that fact . \u201d The letter indicated that the appeal would not be considered , as the court had found against the applicant , informed him that he could apply for legal aid in connection with the application for leave to appeal , and stated that his communication was being treated as a complaint under Stage I of ORG complaints procedure .","On DATE , ORG acknowledged the applicant \u2019s application for leave to appeal and informed him that his application might be decided by a Lord Justice without a hearing , but that in most cases ORG would direct that the application be listed for oral hearing in court , and that if ORG directed an oral hearing , the applicant would be notified in due course of the hearing date .","The applicant and his wife did not give up possession of their property as ordered and , accordinly , on DATE the ORG obtained a warrant of possession , authorising an eviction , if necessary , on DATE . It appears that the applicant rang ORG to inform them of this fact and to impress upon them the urgency of holding a hearing in his case . It appears that ORG informed him that ORG would decide whether or not it would grant leave to appeal or a stay before DATE .","On DATE , the applicant telephoned ORG indicating that he wished to appeal against the refusal to grant him legal aid and was notified that his appeal would be heard on DATE . On DATE , the applicant notified ORG by telephone and in writing that his application for legal aid had been refused , and that his appeal against the refusal was due to be heard on DATE .","On DATE , the applicant completed a notice of appeal against the refusal to grant him legal aid in connection with his appeal . Also on DATE , the applicant \u2019s former solicitors wrote to ORG in support of the applicant \u2019s appeal .","On DATE , ORG wrote to the applicant notifying him that his application for leave to appeal would be heard on DATE . The applicant received the letter on DATE . Also on DATE , ORG wrote to the applicant and confirmed that his appeal against the refusal to grant legal aid in connection with his appeal would be heard on DATE .","On DATE , the applicant travelled to GPE and presented his application for leave to appeal in person , with the assistance of a PERSON friend ( an unqualified adviser ) whose first acquaintance with the case was TIME of the appeal . Although the application for leave to appeal was ex parte , the ORG was represented by counsel at the hearing of the application . The applicant applied for an adjournment of the application for leave to appeal , in order that his appeal against the refusal to grant legal aid might be heard . ORG refused to grant an adjournment but indicated that if , in the course of the application , it appeared that legal representation was necessary , they would keep in mind the application for an adjournment . After hearing the applicant , ORG dismissed the application for leave to appeal . It noted insofar as he appealed concerning the orders of CARDINAL and DATE , he should have appealed against those orders at the time . As regarded the allegations that privileged documents were disclosed , it found that there was no evidence that any such material from his accountant had been referred to by the judge or taken into account by him in reaching his decision and noted that no objection had been made during the trial to the use of any of those documents . It also found that no reference had been made to privileged material held by the solicitor PERSON beyond what was inevitable and proper in the circumstances .","On DATE , the applicant telephoned ORG and informed them that he would not be pursuing his appeal against the refusal of legal aid for the appeal , as the application for leave to appeal had been dismissed .","The ORG took possession of the farm pursuant to the warrant for possession , and sold it in order to recover the moneys due to them under the legal charge .","In order to qualify for legal aid at the relevant time , the applicant had to satisfy ORG :","( CARDINAL ) that he was financially eligible for legal aid in that his disposable income and capital fell below that prescribed for these purposes ( reg . CARDINAL of ORG ( General ) Regulations DATE , SI CARDINAL ) ;","( CARDINAL ) that he had reasonable grounds for taking or defending the proceedings or making any counterclaim therein ( section CARDINAL(CARDINAL ) of LAW DATE ( the \u201c legal merits \u201d test ) ;"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92351","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2009,"docname":"CASE OF STEPHENS v. MALTA (No. 1)","importance":2,"conclusion":"Violation of Art. 5-1;No violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and prior to the events in question he had been living in GPE . He is currently serving a prison sentence in GPE .","On DATE , the applicant was arrested and detained in GPE following a request for his extradition ( quoting ORG ) by the NORP authorities , pursuant to an arrest warrant issued by ORG as a ORG .","The arrest warrant had been issued on the basis of an allegation that the applicant had in GPE conspired with another person or persons in GPE to transport drugs to GPE .","While detained in GPE , the applicant , through his legal counsel , lodged proceedings in GPE contesting the legality of the arrest warrant .","On DATE , while he was in GPE , the applicant , through his legal counsel , requested ORG to re - examine the lawfulness of his arrest on the ground that it had not been competent to issue the warrant and that GPE did not have jurisdiction to try the applicant .","On DATE ORG rejected both claims . It held that the facts which formed the basis of the charges against the applicant amounted to a crime falling under the NORP authorities\u2019 jurisdiction and that in the referral stage ( \u201c rinviju \u201d ) , it had been competent to issue the warrant .","On DATE the applicant complained under LAW and CARDINAL of the Convention . He maintained that his arrest in GPE had occurred consequent to an arrest warrant which was unlawful on the grounds , first , that ORG did not have jurisdiction on the facts as alleged . According to section CARDINAL of LAW ( hereinafter \u201c FAC ) , the NORP courts had jurisdiction over foreigners acting outside NORP territory only in cases specifically provided for in law and this could not be extended by means of interpretation . There was no specific law and none of the legal provisions cited in the arrest warrant ( section CARDINAL ( CARDINAL ) ( f ) of the LAW and ORG ( f ) of ORG ) referred to the alleged facts . Secondly , the applicant claimed that the warrant had been issued by an authority which was not competent to issue it . Moreover , he complained that ORG which had been requested to examine speedily the lawfulness of his arrest did not satisfy the requirements of LAW in so far as , according to section CARDINALA of the ORG ( see paragraph CARDINAL below ) , only the prosecution had a right of appeal , not the accused . He requested the court to uphold the alleged violations , revoke the arrest warrant and the consequential request for extradition , and to grant him compensation .","On DATE ORG partly upheld the applicant \u2019s claims . It held that the arrest warrant of CARDINAL DATE should be rescinded as the court issuing it had acted ultra vires . Indeed , ORG in its referral stage had no competence to issue the arrest warrant , even more so since the issuing of such warrant had not been requested by the Attorney General and such action did not fall within the ambit of LAW witnesses ; therefore the applicant \u2019s arrest was devoid of any legal basis and contrary to LAW and the applicant should accordingly be released . Moreover , it held that ORG when examining the lawfulness of the arrest warrant did not comply with the requirements of LAW in so far as it granted the Attorney General ( hereinafter \u201c ORG \u201d ) an \u201c appeal \u201d and no equivalent remedy to the applicant . ORG granted the applicant compensation amounting to CARDINAL NORP PERSON ( MTL \u2013 approximately MONEY ( ORG ) ) .","NORP However , it held that according to the CC the NORP courts had jurisdiction over any individual who committed a crime expressly stated in law even if such crime had been committed outside GPE . In the present case there was no doubt that the relevant laws , namely section CARDINAL ( CARDINAL ) , ( e ) and ( f ) of the LAW and section CARDINAL A ( CARDINAL ) , ( e ) and ( f ) of ORG ( see paragraphs CARDINAL below ) , which were similarly worded , covered crimes considered as such in GPE , notwithstanding that they had occurred outside GPE . While subsection ( e ) covered only persons who were NORP citizens or residents , subsection ( f ) covered any person in GPE or outside the territory of GPE , and was not a follow - up to the previous subsection ; therefore it did not carry the same limitations . Had the legislator wanted to limit subsection ( f ) he would have done so explicitly but no such qualification had been made . Further , nothing else provided reason to believe that subsection ( f ) had to be read as a continuation of subsection ( e ) ; indeed , the use of the word \u201c or \u201d suggested that the contrary interpretation applied . Moreover , since subsection ( f ) particularly contemplated crimes against ORG and which were to the detriment of NORP society , it was plausible to infer that there was no qualification to the subsection .","On DATE the applicant appealed requesting that his arrest be declared unlawful on the additional ground that GPE lacked jurisdiction to try a NORP national , who was not a permanent resident in GPE , for acts committed outside GPE and that the alleged conspiracy conferred jurisdiction solely on those who had acted on or from NORP soil . Moreover , he complained that the sum granted by way of compensation was too low in view of the fact that he had been under arrest since DATE .","According to the Government , on DATE ORG informed ORG by e - mail that the warrant had been declared unlawful . However , in line with the ORG \u2019s interpretation , ORG was also informed that the judgment was not final and had no effect until the appeal , yet to be lodged , had been decided .","In the meantime the ORG lodged a cross - appeal .","It appears that the applicant \u2019s legal counsel had informed the NORP authorities of the judgment in favour of the applicant and had requested the applicant \u2019s release on this basis . According to the Government , on DATE a NORP court decided that the applicant \u2019s release was a matter to be decided on the basis of NORP law without any reference to NORP law . The applicant was not released .","Consequently , pending the main constitutional proceedings , on DATE , the applicant filed another application with ORG requesting the execution of his release according to the judgment of CARDINAL DATE . He claimed that according to NORP law , namely section CARDINAL of ORG ( hereinafter \u201c COCP \u201d ) , a judgment declaring an arrest unlawful was immediately enforceable , notwithstanding any pending appeal .","On DATE the ORG filed a reply making reference to LAW ( hereinafter \u201c ORG \u201d ) , submitting , inter alia , that section CARDINAL of the COCP was not applicable to situations such as the present where a person was detained in a foreign jurisdiction under the law of that jurisdiction . Moreover , although the applicant had so requested , the judgment of CARDINAL DATE had not ordered the cancellation of the extradition request .","On DATE the applicant limited his ancillary claim lodged on DATE to the applicability of section CARDINAL of the COCP , thus de facto withdrawing his request for release under these proceedings in favour of a more generic request on the applicability of the law . ORG upheld the applicant \u2019s request stating that the judgment at issue was indeed provisionally enforceable in terms of section CARDINAL ( b ) of the COCP in so far as it provided remedies against unlawful arrest .","On DATE ORG , dealing with the main proceedings , delivered judgment on the applicant \u2019s appeal and the ORG \u2019s cross - appeal . It revoked the first judgment in so far as it had found inter alia a violation of LAW , and in so far as it had ordered the applicant \u2019s release . It ruled that the arrest warrant was null and void , but only on the ground that ORG in the referral stage ( \u201c rinviju \u201d ) had not been competent to issue the warrant and that consequently the arrest was unlawful and in violation of LAW . However , GPE , his release could not be ordered by the court . Furthermore , in its view , the arrest warrant had been validly grounded in law . Notwithstanding the general provisions of the ORG , particularly section CARDINAL A , which might have provided otherwise , section CARDINAL ( CARDINAL ) , ( e ) and ( f ) of the LAW and section CARDINAL A ( CARDINAL ) , ( e ) and ( f ) of ORG prevailed , according to section CARDINAL of the ORG , given that they were special laws . Nevertheless , ORG could not usurp the function of ORG , which was the only court competent to decide on the matter of jurisdiction . Having regard to the fact that the unlawfulness was solely due to a procedural defect , it found the compensation granted by the first court to be adequate and confirmed the sum . It further held that the parties were to bear their own costs and advised that a new warrant under section CARDINAL V of the ORG could be issued and would be perfectly legal .","On DATE the applicant was granted bail by the NORP authorities with the obligation to report DATE to a police station . His passport was impounded .","On DATE the applicant was re - arrested by the NORP authorities on the basis of a new request by the NORP authorities , but as a continuation of the previous extradition proceedings .","On DATE , the Audiencia Nacional in GPE confirmed the applicant \u2019s extradition to GPE . On DATE the applicant was extradited to GPE to stand trial .","By a decision of ORG of DATE , and by the judgment of ORG of DATE confirmed by ORG judgment of DATE , it was held that ORG had the necessary jurisdiction over the facts of which the applicant was accused . The latter judgment found the applicant guilty of the said charges . The applicant has been in prison ever since .","On DATE the applicant , who at the time was under house arrest in GPE , also introduced another application with the ORG with further complaints regarding later stages of his proceedings in GPE ( application no . CARDINAL ) .","Section CARDINAL of LAW , in so far as relevant reads as follows :","\u201c ( CARDINAL ) Saving any other special provision of this LAW or of any other law conferring jurisdiction upon the courts in GPE to try offences , a criminal action may be prosecuted in GPE \u2013","...","( i ) against any person who commits an offence which , by express provision of law , constitutes an offence even when committed outside GPE . \u201d","Section CARDINAL ( CARDINAL ) of LAW , reads as follows :","\u201c Whosoever in GPE conspires with CARDINAL or more persons in GPE or outside GPE for the purpose of committing any crime in GPE liable to a punishment of imprisonment , not being a crime in GPE under LAW , shall be guilty of the offence of conspiracy to commit that offence . \u201d","Section CARDINAL of the Dangerous Drugs Ordinance , LAW of LAW , in so far as relevant , reads as follows :","\u201c ( CARDINAL ) Any person \u2013","...","( d ) who in GPE aids , ... ; or","( e ) being a citizen of GPE or a permanent resident in GPE , who in any place outside GPE does any act which if committed in GPE would constitute an offence of selling or dealing in a drug against this Ordinance or an offence under paragraph ( f ) ; or","( f ) who with another one or more persons in GPE or outside GPE conspires for the purposes of selling or dealing in a drug in these LOC against the provisions of this Ordinance or who promotes , constitutes , organises or finances the conspiracy , shall be guilty of an offence against this GPE . \u201d","This same wording is reproduced in LAW , in defining the offences related to psychotropic drugs .","As regards practice , it appears that the NORP courts have regularly convicted persons ( particularly drug couriers ) of the crime of conspiracy where the offence is alleged to have taken place outside GPE ( see , for example , GPE v. PERSON , DATE and GPE v. PERSON , DATE ) .","ORG NORP Convention on Extradition ( \u201c ECE \u201d ) ( GPE , DATE ) which came into force in respect of GPE DATE after its ratification on DATE , requires that a request made by a requesting ORG shall be supported by the original or a copy of the warrant of arrest issued in accordance with the procedure laid down in the law of the requesting ORG . Except where the ORG otherwise provides , the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested ORG ( extraditing ORG ) . Articles CARDINAL and CARDINAL of the said ORG , in so far as relevant , read as follows :","\u201c The request shall be in writing and shall be communicated through diplomatic channels . Other means of communication may be arranged by direct agreement DATE .","The request shall be supported by :","the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting ORG ; ... \u201d","\u201c Except where this Convention otherwise provides , the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested ORG . \u201d","ORG ( \u201c GPE \u201d ) Member GPE now make use of a NORP arrest warrant ( \u201c EAW \u201d ) , which discontinues the use of the extradition procedure . The new procedure takes the form of a judicial decision issued by a ORG Member ORG with a view to the arrest and surrender by another Member ORG of a person being sought in connection with a criminal prosecution or a custodial sentence . ORG scheme makes procedures faster and simpler without requiring any political involvement . The GPE Member GPE were required to introduce legislation to bring the EAW into force by DATE . However , GPE having joined ORG at DATE , this legislation came into force there on DATE by virtue of the Extradition ( Designated Foreign Countries ) Order , DATE .","As regards the remedies against unlawful detention","Section CARDINALA of the Maltese Criminal Code regarding an application by a person in custody alleging unlawful detention , reads as follows :","\u201c ( CARDINAL ) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to ORG , which shall have the same powers which that court has as a court of criminal inquiry , demanding his release from custody . Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on DATE of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained . The Commissioner of Police or public authority , as the case may be , may file a reply by not later than the day of the hearing .","( CARDINAL ) On DATE appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant .","( CARDINAL ) If , having heard the evidence produced and the submissions made by the applicant and respondents , the court finds that the continued detention of the applicant is not founded on any provision of this LAW or of any other law which authorises the arrest and detention of the applicant it shall allow the application . Otherwise the court shall refuse the application .","( CARDINAL ) Where the court decides to allow the application the record of the proceedings including a copy of the court \u2019s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may , within DATE from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this LAW or of any other law , apply to ORG to obtain the re - arrest and continued detention of the person so released from custody . The record of the proceedings and the court \u2019s decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to ORG . \u201d","Section CARDINAL of the Code of ORG , in so far as relevant reads as follows :","\u201c The following shall be in all cases provisionally enforceable :","( b ) any judgment ... providing remedies against illegal arrest ... ; \u201d","As regards the role of ORG","LAW , in so far as relevant , reads as follows :","Article CARDINAL","\u201c ( CARDINAL ) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under LAW and exercise all such powers as are conferred on it by this LAW . \u201d","Article CARDINAL","\u201c ( CARDINAL ) Any person who alleges that any of FAC , has been , is being or is likely to be contravened in relation to him , or such other person as ORG , ORG , in GPE may appoint at the instance of any person who so alleges , may , without prejudice to any other action with respect to the same matter that is lawfully available , apply to ORG , ORG , for redress .","( CARDINAL ) ORG , ORG , shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub - article ( CARDINAL ) , and may make such orders , issue such writs and give such directions as it may consider appropriate for the purpose of enforcing , or securing the enforcement , of FAC to the enjoyment of which the person concerned is entitled :","Provided that the court may , if it considers it desirable so to do , decline to exercise its powers under this sub - article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law .","...","( CARDINAL ) Any party to proceedings brought in ORG , ORG , in pursuance of this article shall have a right of appeal to ORG . \u201d","Consequently , a complaint must be lodged with both instances before it is introduced with ORG . However , in PERSON v. GPE , no . ORG , DATE , \u00a7 DATE , the ORG held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant \u2019s detention . Consequently in the cited case the applicant had not had at his disposal , under domestic law , a remedy for challenging the lawfulness of his detention under LAW ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-4"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77500","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF PIATKOWSKI v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","DATE the applicant was the Head of ORG of the \u201c \u0141\u00f3dzkie \u201d housing co - operative ( PERSON \u201c Os . \u0141\u00f3dzkie \u201d ) .","NORP In DATE ORG i Gminy ) requested the prosecution service to initiate an investigation against the applicant for not returning documents concerning the Committee .","On DATE the applicant was charged with having hidden the documents .","On DATE the applicant was indicted before the Tomasz\u00f3w Mazowiecki District Court ( S\u0105d Rejonowy ) .","On DATE and CARDINAL DATE ORG held hearings . On DATE it gave a judgment in which it found that the applicant had committed the offence . The trial court conditionally discontinued the proceedings . The applicant was given a term of probation of DATE and ordered to pay ORG CARDINAL to a charity . The applicant appealed .","On DATE ORG ( S\u0105d Wojew\u00f3dzki ) held a hearing and on DATE it dismissed the applicant \u2019s appeal .","In DATE the applicant lodged a cassation appeal with ORG ( S\u0105d Najwy\u017cszy ) .","NORP On DATE ORG dismissed the cassation appeal as manifestly ill - founded .","Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG \u2019s liability in tort .","In the version applicable until DATE , Article CARDINAL \u00a7 CARDINAL , which lays down a general rule , read as follows :","\u201c CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . \u201d","Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :","\u201c CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and of the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage occurred . \u201d","On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","A more detailed rendition of the relevant domestic law provisions is set out in the ORG \u2019s judgment in GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL\u2013CARDINAL , ORG CARDINAL\u2013 ... ( extracts ) and in PERSON v. GPE DATE . ) , no . CARDINAL , \u00a7 \u00a7 CARDINAL , ORG CARDINAL ...."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101263","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2010,"docname":"BENET PRAHA, SPOL. S R.O.  v. THE CZECH REPUBLIC","importance":3,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste","text":["The applicant , PERSON , spol . s r.o . , is a limited liability company incorporated under NORP law with its registered seat in GPE . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr V.A. Schorm , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE criminal proceedings were instituted against a former manager of the applicant company on the suspicion of having committed tax evasion . Within the framework of the criminal proceedings a search of the applicant company 's premises was carried out on DATE . Cash in several currencies in the total amount of MONEY . ( EUR CARDINAL ) and several documents such as financial files , books of accounts and business documents were seized . According to the applicant company these documents and most of the cash have not yet been returned to it .","On DATE , the prosecuting authorities seized all of the applicant company 's assets deposited on its CARDINAL bank accounts on the suspicion that they constituted a profit from criminal activities of the manager . The seizure orders , which were notified to the applicant company on DATE , did not specify what assets had been seized , nor to what amount . This was remedied on DATE by ORG ( vrchn\u00ed st\u00e1tn\u00ed z\u00e1stupce ) who amended the original decisions by writing in the sums to be seized . While doing so , he froze all assets deposited on the applicant company 's accounts on DATE , i.e. inclusive of payments which had come in after DATE and DATE , respectively . The applicant company 's assets amounting to CARDINAL CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) were thus seized .","The criminal proceedings against the former manager of the applicant company are currently pending before an appellate court . On DATE ORG acquitted the manager . The prosecutor , however , appealed . During the investigation the prosecuting authorities , inter alia , collected CARDINAL pages of documentary evidence , interviewed CARDINAL witnesses and requested legal assistance from the competent authorities of CARDINAL countries .","Meanwhile , numerous tax and custom proceedings were brought against the applicant company in regard of a suspected retrenchment . They all were later discontinued as no tax and customs evasion by the applicant company was detected .","On DATE the applicant company lodged a request with the police , seeking to have the seizure of its bank accounts lifted .","On DATE the request was transferred to ORG who , on DATE , dismissed it , stating that the reasons for the seizure continued . ORG added that the fact that the tax proceedings brought against the applicant company had been discontinued was irrelevant to the seizure .","On DATE the applicant company appealed to ORG ( vrchn\u00ed soud ) which dismissed the appeal on DATE .","On DATE the applicant company lodged a constitutional appeal against ORG decision of CARDINAL DATE . In the appeal , the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length .","On DATE ORG ( \u00dastavn\u00ed soud ) declared the appeal inadmissible , finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck . The decision was served on the applicant company 's lawyer on DATE .","On DATE ORG found a violation of the right to property of a company PERSON , spol . s r.o . , which was in a similar position as the applicant company . It held that the length of the seizure , over DATE , was unreasonable , which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company . The applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of ORG . On DATE the High Prosecutor lifted the seizure of the applicant company 's bank accounts holding that the conclusions of ORG applied also to the applicant company ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58174","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF CAZENAVE DE LA ROCHE v. FRANCE","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"C. Russo;John Freeland","text":["Under the technical and cultural convention concluded between GPE and GPE on DATE , ORG recruited PERSON on DATE as a senior lecturer at ORG .","On DATE the NORP embassy in GPE sent the applicant a certificate of termination of payment , the date of expiry of her contract having been set at DATE by the NORP authorities . The certificate stated :","\u201c \u2026","Certifies that PERSON \u2026 Senior Lecturer without tenure \u2026 will have her name removed from the list of staff serving overseas on DATE and will be paid by ORG until DATE .","\u2026 \u201d","On DATE PERSON applied to the Minister for ORG , seeking to have the decision of CARDINAL DATE revoked and to be appointed to the town - planning teaching staff on the basis of the provisions of LAW see paragraph CARDINAL below ) .","On DATE the Minister for ORG refused the applicant \u2019s requests on the ground , in particular , that the application of the PERSON in question was conditional on the publication of implementing decrees , which did not exist when the impugned decision was taken .","On DATE PERSON applied to ORG to quash the decision of CARDINAL DATE ; she also sought a declaration that she was entitled to be established as a civil servant with effect from DATE .","NORP The Minister of State at ORG filed his pleading on DATE and the applicant did likewise on DATE .","On DATE , having held a hearing on DATE , the court delivered the following judgment :","\u201c \u2026","As to the submissions concerning the refusal to establish the applicant as a civil servant","As to the ground based on infringement of sections CARDINAL et seq . of the LAW DATE and sections CARDINAL et seq . of the PERSON of DATE","\u2026","By LAW no . CARDINAL - CARDINAL of DATE , \u2018 NORP cultural , scientific and technical cooperation PERSON have \u2018 the right to become established if they so request\u2019 .","The application of that PERSON and , in particular , of the \u2026 provisions of LAW CARDINAL was , however , conditional on the enactment of decrees adopted after consultation of the PERSON d\u2019Etat , which had not been published by the date on which the provisions in question were in turn taken over in sections CARDINAL et seq . of PERSON no . CARDINAL of DATE , and the decrees to be adopted after consultation of the ORG d\u2019Etat which were also necessary for the application of these had likewise not been enacted by the date of the impugned decision .","While it is established that the authority empowered to make regulations is under a legal obligation to take , within a reasonable time , those measures which are within its powers and are necessary for the implementation of a legislative enactment , it does not appear that the time which has elapsed since the publication of the legislative enactment can be regarded as excessive . PERSON consequently can not rely on that circumstance to challenge the lawfulness of the decision whereby the Minister of State at ORG refused her application .","\u2026 \u201d","On CARDINAL DATE PERSON appealed to the ORG d\u2019Etat against ORG judgment . She filed a supplementary pleading on DATE .","The PERSON d\u2019Etat held a hearing on DATE and delivered its judgment on DATE . It quashed ORG judgment of CARDINAL DATE and the Minister for Foreign Affairs\u2019 decision of CARDINAL DATE and dismissed the remainder of the appeal as follows :","\u201c \u2026","As to the lawfulness of the decision under appeal","By the provisions of section CARDINAL and sub - paragraph CARDINAL of section CARDINAL of the LAW DATE , which was taken over in sub - paragraph CARDINAL of section CARDINAL of the LAW DATE , ORG employees not on the establishment who are civilian cultural , scientific or technical cooperation staff in post in foreign States have the right to become established \u2026","By the first sub - paragraph of section CARDINAL of the same PERSON , \u2018 Employees not on the establishment who may rely on the provisions of this PERSON can not be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section CARDINAL for making their choice\u2019 \u2026","Although PERSON , at the end of her contract , was placed at the disposal of ORG by ORG and although she was recruited to fill a specific post in GPE , the Minister could not lawfully dismiss her other than for professional shortcomings or for a disciplinary offence . It is established that in refusing to renew PERSON contract by sending her notice of termination of payment \u2026 a decision which may be regarded as a dismissal in the light of the aforementioned provisions of section CARDINAL \u2026 the authorities relied exclusively on the fact that PERSON had been placed at their disposal by ORG . That being so , the decision was taken in breach of section CARDINAL of the Law of DATE and PERSON Roche is consequently justified in maintaining that ORG in its impugned judgment of CARDINAL DATE was wrong to dismiss her application in so far as she was seeking to have the decision \u2026 [ of ] CARDINAL DATE quashed .","As to the submissions concerning the applicant \u2019s being placed on the establishment","While under sections DATE and CARDINAL of the Law of DATE certain employees who are not established and civilian cultural \u2026 cooperation staff have the right to become established , if they so request , in vacant posts or ones that are to be created in ORG , it is apparent from sections CARDINAL and CARDINAL of the same PERSON that the legislature provided that the arrangements for implementing the principle should be laid down in decrees adopted after consultation of the PERSON d\u2019Etat . Consequently , in any event , since the decree to be adopted after consultation of the ORG d\u2019Etat providing for appointment to a body of ORG teaching staff as an established civil servant had not been published , the Minister could not do other than dismiss the application for establishment submitted on the basis solely of sections CARDINAL and CARDINAL of the LAW DATE . \u201d","On DATE PERSON submitted a preliminary claim to the Minister for ORG for compensation for the loss sustained on account of her not having become an established member of the State \u2019s architect teaching staff .","On DATE she lodged an application with ORG , seeking to have the implicit refusal of her compensation claim quashed .","On DATE the applicant submitted a fresh compensation claim to the ORG and , in consequence , updated her court claim on CARDINAL DATE . She filed a supplementary pleading on DATE .","Concurrently with the proceedings on the merits , PERSON made an application to the court on DATE for an interim award .","In an interim order of CARDINAL DATE the court directed the Minister for ORG to pay the applicant the sum of MONEY ( ORG ) as an advance representing the amount of loss of remuneration over the period from CARDINAL DATE to DATE . The order read as follows :","\u201c \u2026","In her application PERSON sought an order that the ORG , represented by the Minister for ORG , should pay her the sum of MONEY as an advance on the sums sought in her substantive application by way of salary which , pursuant to the ORG d\u2019Etat \u2019s judgment of DATE , was due to her \u2026 Although the application was communicated to the Minister for ORG \u2026 , he did not dispute the existence of the obligation on which the applicant relied against the State . The existence of that obligation is not refuted by any of the evidence and can not be seriously challenged .","\u2026 \u201d","On DATE , on a second application for an interim order on DATE , followed by a defence filed on DATE , the court ordered the ORG to make a further interim payment of ORG CARDINAL,CARDINAL .","","Having held a hearing on DATE , ORG delivered its judgment on DATE . It joined the applications of DATE ( see paragraph CARDINAL above ) and DATE ( see paragraph CARDINAL above ) , held that the loss allegedly caused by the refusal of the application to become established did not sound in damages and that the unlawfulness of the decision to terminate employment , as found by the PERSON d\u2019Etat , amounted to a culpable act capable of rendering the ORG liable . The ORG was ordered to pay the applicant the sum of ORG CARDINAL,CARDINAL , including the interim awards . The court gave the following reasons for its decision :","\u201c As to the ORG \u2019s liability","\u2026 while it is true that the Government was under an obligation to adopt the decrees in issue within a reasonable time , the provisions of the PERSON of DATE conferred on the applicant , not a present right [ droit ] but only a contingent right [ vocation ] to become established , such a measure being also conditional on the creation of the corresponding posts and , where appropriate , professional recruitment \u2026","The Minister , however , could not lawfully decide that PERSON name would be removed from the list of staff serving overseas or refrain from acting on the application made by the applicant on DATE seeking to be appointed to a post of non - established employee equivalent to the one from which she had been dismissed . That unlawfulness amounts to a culpable act capable of rendering the ORG liable to the applicant .","\u2026 \u201d","On DATE the applicant asked to be notified of the judgment and it was served on her on DATE .","On DATE PERSON appealed against ORG judgment to ORG , seeking an order that the ORG should pay her an additional sum of ORG CARDINAL .","On DATE the Minister for Cooperation filed a pleading in which he argued that it was for the Minister for ORG to reply to the applicant \u2019s submissions . The applicant argued the same in a pleading of DATE , pointing out that the Minister for ORG had ignored the court \u2019s formal notice that he should submit his defence .","","NORP The Minister for ORG filed a pleading on DATE , that is to say after the time - limit laid down in the formal notice sent by the registry of ORG , and PERSON de la Roche replied on DATE . She filed a further pleading on DATE .","Having held a hearing on DATE , ORG dismissed the applicant \u2019s appeal in a judgment of CARDINAL DATE and varied ORG judgment by reducing the amount of the sum payable by the ORG to ORG CARDINAL,CARDINAL . The judgment was served on the applicant on DATE .","Section CARDINAL of Law no . CARDINAL of DATE on the position of civilian cultural , scientific and technical cooperation staff in post in foreign GPE provides :","\u201c Staff other than those mentioned in LAW , second sub - paragraph , shall , at the end of their cooperation assignment and on the terms laid down by decree , enjoy the guarantees provided for non - established public employees who lose their jobs .","Cooperation service by those same staff shall be treated as service carried out in GPE by staff who are not established or not permanent , in particular as regards the appointment or establishment as national civil servants of established employees of local authorities and public bodies or permanent staff of public services , bodies or undertakings of an industrial or commercial nature . \u201d","When the applicant \u2019s contract expired , her position was governed by PERSON no . CARDINAL - CARDINAL of DATE laying down the procedure for filling permanent civilian posts in the service of the ORG and its public bodies and authorising the establishment of non - established employees occupying such posts , and more particularly by the following provisions :","","Section CARDINAL","\u201c Employees not on the establishment who occupy a post with the characteristics laid down in LAW above shall have the right to become established , if they so request , in posts that are vacant or that are to be created in FAC , provided that they","( CARDINAL ) NORP either are in post at the date of publication of the present PERSON , or are on leave at that date pursuant to Decree no . CARDINAL - CARDINAL of DATE on the social welfare of non - established ORG employees , or are on leave at that date pursuant to Decree no . CARDINAL of DATE on the social welfare of non - established employees of the ORG and of ORG public administrative or cultural and scientific bodies , of NORP nationality and in service abroad ;","( CARDINAL ) have , at the date of making their application , carried out actual service of a duration equivalent to DATE of full - time service in CARDINAL of the above - mentioned posts ; and","( CARDINAL ) satisfy the conditions laid down in section QUANTITY of the above - mentioned Ordinance no . CARDINAL - CARDINAL of DATE . \u201d","Section CARDINAL","\u201c The following shall also have the right to become established , if they so request , on the terms laid down in section CARDINAL above :","( CARDINAL ) NORP civilian cultural , scientific and technical cooperation staff in post in foreign GPE or in the institution to which they have been assigned who satisfy the conditions laid down in the second sub - paragraph of LAW no . CARDINAL of DATE on the position of civilian cultural , scientific and technical cooperation staff in service in foreign GPE ;","\u2026 \u201d","Section CARDINAL","\u201c \u2026 access to the various corps of civil servants may be provided for the non - established employees mentioned in sections CARDINAL and CARDINAL \u2026 by means of decrees adopted after consultation of the ORG d\u2019Etat \u2026 \u201d","Section CARDINAL","\u201c Employees not on the establishment who may rely on the provisions of this PERSON can not be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section CARDINAL for making their choice .","\u2026 \u201d","Sections CARDINAL , CARDINAL , DATE and DATE of the LAW were taken over in sections DATE , CARDINAL , DATE and CARDINAL of Law no . CARDINAL of DATE making provisions governing the civil service .","Article R. CARDINAL of ORG Code provides :","\u201c The President of ORG or of ORG or a judge delegated by CARDINAL of them may make an interim award to a creditor who has made a substantive application to ORG where the existence of the obligation is not seriously disputable . He may , even of his own motion , make the payment of such an award conditional on the provision of security . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23834","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2004,"docname":"RINGEL v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE . She was represented before the Court by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","By a decision of DATE ORG ( f\u00f6rs\u00e4kringskassan ; hereinafter \u201c the Office \u201d ) of GPE granted the applicant a life annuity ( livr\u00e4nta ) under LAW ( Lagen om arbetsskadef\u00f6rs\u00e4kring , CARDINAL:CARDINAL ; hereinafter \u201c the DATE LAW ) . The amount on the basis of which the annuity was to be calculated \u2013 corresponding to the applicant 's expected DATE income had she continued to work DATE was fixed at MONEY ( SEK ) . The applicant appealed against the ORG 's decision and ORG ( l\u00e4nsr\u00e4tten ) of GPE , by a judgment of DATE , raised the amount in question to SEK CARDINAL . The applicant made a further appeal to ORG ( kammarr\u00e4tten ) in GPE . ORG ( Riksf\u00f6rs\u00e4kringsverket ) also appealed . Whereas the applicant had not requested an oral hearing at first instance , she asked the appellate court to hold one . However , the appellate court refused the request , finding that a hearing was not necessary . By a judgment of DATE it found in favour of ORG and thus quashed the appealed judgment and upheld the ORG 's decision . On DATE ORG ( Regeringsr\u00e4tten ) refused the applicant leave to appeal .","On DATE the ORG decided that the above amount should be fixed at SEK CARDINAL,CARDINAL for DATE .","By a decision of CARDINAL DATE the ORG fixed the amount at SEK CARDINAL for the following period . The applicant , assisted by legal counsel , appealed to ORG and claimed that the amount should be fixed at SEK CARDINAL,CARDINAL .","By a judgment of DATE the court upheld the ORG 's decision , finding that the ORG had correctly estimated the applicant 's expected income at the time of the appealed decision . The court did not hold an oral hearing , nor did the applicant request CARDINAL .","The applicant appealed to ORG . By a letter of DATE she requested that the appellate court hold an oral hearing at which she wished to make oral submissions . It appears from the wording of the letter that the request was for a hearing to be held if the court were to examine the case on the merits .","On DATE ORG refused leave to appeal . On DATE , following a further appeal , ORG also refused leave to appeal .","All gainfully employed persons working in GPE are insured against industrial injuries in accordance with LAW . Anyone who is put on the sick - list as a result of an industrial injury and who is insured under LAW ( NORP om allm\u00e4n f\u00f6rs\u00e4kring , CARDINAL:CARDINAL ) is entitled to the same per diem benefit from the ordinary sickness insurance ( social insurance ) during DATE as if he or she had been sick for a reason other than an industrial injury . When DATE have passed , the insured person is entitled to a per diem sickness benefit in accordance with LAW ( industrial injury insurance ) , if his or her ability to carry on with gainful employment is reduced by PERCENT ( PERCENT prior to DATE ) . After the period of sickness has come to an end and the insured person is no longer on the sick - list , he or she is entitled to a life annuity if the capacity for gainful employment is reduced by DATE . In order to calculate the annuity , an amount corresponding to the expected DATE income is fixed .","A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG .","The procedure in the administrative courts is governed by the provisions of ORG , ORG ; hereinafter \u201c the DATE LAW ) . Section CARDINAL provides :","\u201c The proceedings are in writing .","An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .","In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . \u201d","The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .","According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .","It was further stated , in respect of the third paragraph of section CARDINAL , that a party 's request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party 's understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58914","languageisocode":"ENG","respondent":"CYP","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF LARKOS v. CYPRUS","importance":1,"conclusion":"Violation of Art. 14+8;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Luzius Wildhaber","text":["The applicant is a NORP citizen born in DATE . He is a retired civil servant . On DATE he rented from ORG a house in which he has been living ever since with his wife and CARDINAL children . The tenancy agreement had many of the features of a typical contract for the lease of property with provisions on the payment of rent by the applicant , the use and maintenance of the property , the giving of notice and a termination date . The agreement provided that the tenancy would come to an end in the event of the applicant being transferred to a district other than the one in which the property was situated .","On DATE ORG informed the applicant that the permission by virtue of which he occupied the LOC was revoked and that he had to surrender the property by DATE . He failed to do so and on DATE the Attorney - General notified him that if he did not vacate the house before DATE legal action would be taken against him .","On DATE the applicant replied that he had been living together with his family in the house for DATE . He had been obliged to spend significant sums of money on the maintenance and improvement of the house since the competent public authorities had shown no interest in its upkeep . He claimed that he was a \u201c statutory tenant \u201d within the meaning of the Rent Control Law DATE ( Law no . DATE see paragraphs CARDINAL and CARDINAL below ) and stated that he would continue to occupy the LOC as long as he was protected by law .","On DATE , replying to a second letter from the Attorney - General dated DATE , the applicant reiterated his earlier position .","On DATE the government of GPE instituted proceedings against the applicant before ORG of GPE to have him evicted . The government submitted , inter alia , that the applicant did not occupy the house under a tenancy agreement within the meaning of LAW DATE , but that the LOC had been allocated to him by administrative order because of his position in the civil service .","On DATE ORG of GPE gave judgment against the applicant . The court did not pronounce on the issue of the title under which the applicant occupied the LOC . The court \u2019s interpretation of LAW DATE led it to conclude that its protection did not extend to the applicant since it only bound private owners of property and not ORG . A person who rented LOC owned by the ORG could not therefore be considered a \u201c statutory tenant \u201d protected by that PERSON .","The applicant was ordered to vacate the premises before DATE .","NORP The applicant appealed against the judgment to ORG relying on LAW . At the hearing before ORG the applicant relied essentially on the following argument : his rights as a tenant were \u201c property rights \u201d within the meaning of LAW No . CARDINAL and he was the victim of discrimination in the enjoyment of these rights because LAW DATE , as interpreted by ORG of GPE , gave no protection to tenants of the ORG whereas the same PERSON protected the State as a \u201c statutory tenant \u201d when it rented LOC owned by a private individual . The applicant also submitted that he was the victim of a further act of discrimination in that he enjoyed less protection under the relevant PERSON than tenants of private persons .","On CARDINAL DATE ORG dismissed the applicant \u2019s appeal , considering that he could not claim any property rights under LAW as a tenant . The court also found that , in any event , the notion of equality did not require that a person who enjoyed the protection of ORG as a tenant should be automatically required to grant the same protection to his or her tenants if that person happened to own property . Finally , the court considered , in an obiter dictum , that even if the case concerned the different treatment reserved by the law to property rented out by private owners and to property rented out by the ORG , there would be no violation of the LAW or the LAW because \u201c it would be reasonable to consider that it is not necessary to grant protection [ to tenants ] vis - \u00e0 - vis the [ ORG ] which [ is ] not in the same position as a private owner and [ is ] not expected to administer the property of the ORG according to criteria similar to those guiding a private owner \u201d .","Further to this decision , the applicant has been threatened with imminent eviction .","According to section CARDINAL(CARDINAL ) , the Rent Control Law DATE applies only to dwellings and shops in areas designated \u201c regulated areas \u201d , which are defined in LAW as every area which was declared as such under the previous rent control legislation and includes every other area so declared by order of ORG . Section CARDINAL(CARDINAL ) , which has been unaffected by subsequent amendments to the DATE PERSON , sets out the circumstances under which an order may be made .","Section CARDINAL(CARDINAL ) provides as follows :","\u201c Whenever it is considered by ORG to be necessary or expedient for the purpose of securing the availability of dwellings and shops for reasonable rents and the security of possession thereof , or whenever the public interest otherwise so requires , ORG may by Order published in ORG declare any area in GPE as a regulated area , and thereupon the provisions of this PERSON shall apply to all dwellings or shops within such area . \u201d","\u201c PERSON \u03c4\u03bf \u03a5\u03c0\u03bf\u03c5\u03c1\u03b3\u03b9\u03ba\u03cc\u03bd PERSON \u03ba\u03c1\u03af\u03bd\u03b7 \u03cc\u03c4\u03b9 \u03b5\u03af\u03bd\u03b1\u03b9 \u03b1\u03bd\u03b1\u03b3\u03ba\u03b1\u03af\u03bf\u03bd \u03ae \u03c3\u03ba\u03cc\u03c0\u03b9\u03bc\u03bf\u03bd \u03c0\u03c1\u03bf\u03c2 \u03c4\u03bf\u03bd \u03c3\u03ba\u03bf\u03c0\u03cc\u03bd \u03c4\u03b7\u03c2 \u03b5\u03be\u03b1\u03c3\u03c6\u03b1\u03bb\u03af\u03c3\u03b5\u03c9\u03c2 \u03c4\u03b7\u03c2 \u03b4\u03b9\u03b1\u03b8\u03b5\u03c3\u03b9\u03bc\u03cc\u03c4\u03b7\u03c4\u03bf\u03c2 \u03c4\u03c9\u03bd \u03ba\u03b1\u03c4\u03bf\u03b9\u03ba\u03b9\u03ce\u03bd \u03ae \u03ba\u03b1\u03c4\u03b1\u03c3\u03c4\u03b7\u03bc\u03ac\u03c4\u03c9\u03bd \u03b1\u03bd\u03c4\u03af \u03bb\u03bf\u03b3\u03b9\u03ba\u03ce\u03bd \u03b5\u03bd\u03bf\u03b9\u03ba\u03af\u03c9\u03bd \u03ba\u03b1\u03b9 \u03c4\u03b7\u03c2 \u03b1\u03c3\u03c6\u03b1\u03bb\u03b5\u03af\u03b1\u03c2 \u03c4\u03b7\u03c2 \u03ba\u03b1\u03c4\u03bf\u03c7\u03ae\u03c2 \u03c4\u03bf\u03cd\u03c4\u03c9\u03bd , \u03ae \u03bf\u03c3\u03ac\u03ba\u03b9\u03c2 \u03c4\u03bf \u03b4\u03b7\u03bc\u03cc\u03c3\u03b9\u03bf\u03bd \u03c3\u03c5\u03bc\u03c6\u03ad\u03c1\u03bf\u03bd \u03bf\u03cd\u03c4\u03c9\u03c2 \u03ac\u03bb\u03bb\u03c9\u03c2 \u03b1\u03c0\u03b1\u03b9\u03c4\u03ae , \u03c4\u03bf \u03a5\u03c0\u03bf\u03c5\u03c1\u03b3\u03b9\u03ba\u03cc\u03bd PERSON \u03b4\u03cd\u03bd\u03b1\u03c4\u03b1\u03b9 \u03b4\u03b9\u03b1 \u03b4\u03b9\u03b1\u03c4\u03ac\u03b3\u03bc\u03b1\u03c4\u03bf\u03c2 \u03b4\u03b7\u03bc\u03bf\u03c3\u03b9\u03b5\u03c5\u03bf\u03bc\u03ad\u03bd\u03bf\u03c5 \u03b5\u03b9\u03c2 \u03c4\u03b7\u03bd \u03b5\u03c0\u03af\u03c3\u03b7\u03bc\u03bf\u03bd \u03b5\u03c6\u03b7\u03bc\u03b5\u03c1\u03af\u03b4\u03b1 \u03c4\u03b7\u03c2 \u0394\u03b7\u03bc\u03bf\u03ba\u03c1\u03b1\u03c4\u03af\u03b1\u03c2 \u03bd\u03b1 \u03ba\u03b7\u03c1\u03cd\u03be\u03b7 \u03bf\u03b9\u03b1\u03bd\u03b4\u03ae\u03c0\u03bf\u03c4\u03b5 \u03c0\u03b5\u03c1\u03b9\u03bf\u03c7\u03ae\u03bd \u03b5\u03bd PERSON \u03c9\u03c2 \u03b5\u03bb\u03b5\u03b3\u03c7\u03bf\u03bc\u03ad\u03bd\u03b7\u03bd \u03c0\u03b5\u03c1\u03b9\u03bf\u03c7\u03ae\u03bd , \u03c4\u03bf\u03cd\u03c4\u03bf\u03c5 \u03b4\u03b5 \u03b3\u03b5\u03bd\u03bf\u03bc\u03ad\u03bd\u03bf\u03c5 \u03b8\u03b1 \u03b9\u03c3\u03c7\u03cd\u03bf\u03c5\u03bd \u03b1\u03b9 \u03b4\u03b9\u03b1\u03c4\u03ac\u03be\u03b5\u03b9\u03c2 \u03c4\u03bf\u03c5 \u03c0\u03b1\u03c1\u03cc\u03bd\u03c4\u03bf\u03c2 ORG \u03bf\u03b9\u03b1\u03c3\u03b4\u03ae\u03c0\u03bf\u03c4\u03b5 \u03ba\u03b1\u03c4\u03bf\u03b9\u03ba\u03af\u03b1\u03c2 \u03ae \u03ba\u03b1\u03c4\u03b1\u03c3\u03c4\u03ae\u03bc\u03b1\u03c4\u03b1 \u03b5\u03bd\u03cc\u03c2 \u03c4\u03b7\u03c2 \u03c4\u03bf\u03b9\u03b1\u03cd\u03c4\u03b7\u03c2 \u03c0\u03b5\u03c1\u03b9\u03bf\u03c7\u03ae\u03c2. \u201d","According to LAW tenants of dwellings situated within a \u201c regulated area \u201d who , upon the expiry or termination of the first term of their tenancy agreement , remain in occupation of the dwelling ( \u201c statutory tenants \u201d ) can not be evicted save in certain specified circumstances set out in LAW . These circumstances include the non - payment of rent , unauthorised use of the property and where the dwelling is reasonably required by the landlord for occupation by him or his wife , children or other dependants .","Under LAW , it is for ORG to supervise and dispose of property belonging to GPE . This power of supervision and disposal must be exercised in accordance with the provisions of the LAW and the law ."],"violated_articles":["14","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81747","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2007,"docname":"OZGUR-KARADUMAN v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , has the citizenship of GPE and GPE . She was born in DATE and lives in GPE in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , PERSON , of ORG . ORG , having been informed of their right to intervene in the proceedings ( LAW ) , did not indicate that they wished to exercise that rights .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant sold her car to PERSON At that time , she lived at her father \u2019s place of residence in GPE .","On DATE PERSON lodged a motion against the applicant with ORG ( Amtsgericht ) , claiming DEM CARDINAL as damages for the car \u2019s alleged defects . The motion and all further correspondence were served to the place of residence of the applicant \u2019s father .","On DATE ORG decided to apply a summary procedure ( PERSON billigem PERSON ) pursuant to section CARDINALa of ORG ( Zivilprozessordnung , see relevant domestic law below ) .","On DATE PERSON extended her action and claimed further ORG .","By partial judgment ( ORG ) of CARDINAL DATE ORG ordered the applicant , who had not participated in the proceedings , to pay DEM CARDINAL plus interests to PERSON","By final judgment ( PERSON ) of DATE ORG ordered the applicant to pay further ORG plus interests to PERSON Both judgments were delivered to the place of residence of the applicant \u2019s father .","On DATE the applicant , represented by counsel , lodged an action for declaration of nullity ( Nichtigkeitsklage ) pursuant to section CARDINAL \u00a7 CARDINAL no . CARDINAL of the Code of Civil Procedure , requesting ORG to set aside its judgments of CARDINAL October and DATE . She alleged that she had left GPE on DATE with the aim to live permanently in GPE . She had neither informed her father about her departure nor left her new address . She had not learned about the civil proceedings until her return to GPE on DATE , when her father gave her the mail which had accumulated during her absence . In support of her allegations , she submitted her own affidavit ( eidesstattliche ORG ) . She further nominated CARDINAL witnesses , including her father , her mother , CARDINAL former friends of hers and the postman who had delivered the final judgment of DATE to her father \u2019s place of residence .","The defendant , PERSON , contested these submissions . She pointed out that she had received a demand for payment from the applicant , which was dated DATE and had been posted in GPE . The applicant replied that this letter had been posted by a friend of hers , whom she named as a witness .","On DATE , following a hearing , ORG declared the applicant \u2019s action inadmissible . While leaving the question undecided whether the action for declaration of nullity was applicable in the present case , it found that the applicant had failed to establish to the satisfaction of the court ( glaubhaft machen ) that she had lodged her action within the statutory time - limit of DATE after having learned about the CARDINAL judgments . Taking into account both parties\u2019 submissions , ORG did not attach credence to the applicant \u2019s own affidavit . It considered , firstly , that the applicant had not submitted admissible evidence in support of her allegation that the demand for payment had been posted not by the applicant herself , but by a friend of hers . Furthermore , according to the acknowledgment of service ( GPE ) of CARDINAL DATE , the final judgment had been served on the applicant herself . The applicant had not disproved that fact . ORG further noted that the applicant had alleged that she had received the partial judgment of DATE on her return to GPE . This allegation was contradicted by the fact that the copy of the partial judgment which was to be served on the applicant was located in the case - file of the first set of proceedings , because it had not been picked up by the addressee .","ORG further pointed out that the applicant could have submitted further evidence , such as her air tickets or affidavits given by other persons . She failed however to do so . Referring to section CARDINAL \u00a7 CARDINAL of LAW , ORG decided not to hear any witnesses , as these had not been presented by the applicant during the hearing .","The applicant subsequently lodged an appeal with ORG ( Landgericht ) . She argued , inter alia , that ORG should have heard the witnesses , as section CARDINAL \u00a7 CARDINAL of LAW did not apply in the instant case . She alleged that it would have been up to ORG to summon the witnesses . She further maintained that ORG , during the hearing , had not mentioned that any witnesses had been missing .","On DATE ORG rejected the applicant \u2019s appeal . ORG noted , firstly , that ORG , in the first set of proceedings , had violated the rules of civil procedure by applying the summary procedure even though the value of the issue exceeded the sum of ORG CARDINAL . However , this procedural error did not justify an annulment of the judgments .","Secondly , ORG confirmed that the applicant had not established that she had lodged her action within the statutory time - limit . ORG shared ORG doubts as to the credibility of the applicant \u2019s own affidavit . It further considered that the applicant had failed to explain why she had kept her NORP bank account and why she had not deregistered with the NORP authorities . Contrary to the applicant \u2019s point of view , ORG had not been obliged to summon any witnesses . According to LAW of LAW it was only admissible to take evidence by means which were immediately available to the court . It followed that only those means of evidence had to be considered which had been presented by the respective party . According to ORG , the opinion that the court was obliged to summon witnesses was consistent neither with the wording of the legislation nor with the case - law of ORG . In this respect , ORG referred to a judgment of ORG of DATE ( published in that court \u2019s official collection [ ORG ] volume CARDINAL , p. CARDINAL ) .","On DATE ORG , without giving reasons , refused to accept the applicant \u2019s constitutional complaint for adjudication . The decision was served on the applicant \u2019s counsel on DATE .","The relevant provision of LAW ) , as applicable at the relevant time , reads as follows :","Section CARDINALa Summary procedure","\u201c If the sum in dispute does not exceed CARDINAL hundred German marks , the court may determine its procedure at its reasonably exercised discretion ( nach billigem PERSON ) . Upon request , it shall hold a hearing . \u201d","The summary procedure was introduced in DATE with the aim to unburden the district courts by facilitating proceedings with a low value in dispute . When applying this procedure , a district court is not bound by the formal requirements of LAW . It has , however , to respect the right to a fair hearing ( see the references in ORG , PERSON ( Commentary on the Code of Civil Procedure ) , DATE . DATE , \u00a7 CARDINALa , marginal note CARDINAL) .","The relevant provisions of LAW read as follows :","Section CARDINAL","Action for declaration of nullity","\u201c ( CARDINAL ) An action for declaration of nullity is admissible :","if a party had not been properly represented during the proceedings ... \u201d","According to the case - law of several appeal courts , the above - cited provision can also be applied by analogy in cases in which a party was ignorant of the proceedings through no fault of his or her own ( see the references in ORG , cited above , \u00a7 CARDINAL , marginal note CARDINAL ) .","Section CARDINAL Time - limit","\u201c ( CARDINAL ) The action [ for declaration of nullity ] has to be lodged within a time - limit of DATE .","( CARDINAL ) The time - limit shall start on DATE on which the party learns the ground of nullity ...","( CARDINAL ) In case a party had not been properly represented before the court ... the time - limit shall start on DATE on which the judgment is served on that party ... \u201d","Section CARDINAL Examination of admissibility","\u201c ( CARDINAL ) The ORG shall examine ex officio if the action is admissible and ... if it has been lodged within the statutory time - limit . In case of non - compliance , the action shall be rejected as being inadmissible .","( CARDINAL ) The facts which establish that the action has been lodged within the time - limit have to be established to the satisfaction of the court ( glaubhaft machen ) . \u201d","Section CARDINAL Establishing facts to the satisfaction of the court ( GPE )","\u201c ( CARDINAL ) A party who has to establish an assertion to the satisfaction of the court may employ all means of evidence and may be allowed to submit their own affidavit .","( CARDINAL ) Any evidence which can not be taken immediately is inadmissible . \u201d","The relevant provisions on appeals against first instance judgments read as follows :","Section CARDINAL","\u201c Appeals on facts and law shall take place against the final judgments issued in the first legal instance . \u201d","Section CARDINAL a","\u201c ( CARDINAL ) Appeals on facts and law shall be inadmissible if the value of the subject matter in dispute does not exceed CARDINAL MONEY ... \u201d","Section CARDINAL","\u201c ( CARDINAL ) Default judgments may not be challenged in the appeal by the party against whom they have been issued .","( CARDINAL ) A default judgment against which the objection as such is not available shall be subject to appeal to the extent that it is based upon the claim that no default has taken place . Section CARDINALa shall not be applicable . \u201d","On DATE a new section CARDINALa entered into force , which allows a court , on request of a party , to set aside its own final judgment in case of a violation of the right to a fair hearing ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69288","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"TOPOLAN v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant lodged a claim for a higher amount of sickness benefit with ORG ( PERSON we PERSON ) .","On DATE ORG issued a relevant judgment .","The enforcement proceedings were terminated on DATE .","On DATE , the date on which the application was lodged with the ORG , the enforcement proceedings were pending before ORG .","On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","Section CARDINAL of the CARDINAL Act reads , in so far as relevant :","Section CARDINAL reads , in so far as relevant :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","... \u201d","On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102748","languageisocode":"ENG","respondent":"IRL","branch":"ADMISSIBILITY","date":2010,"docname":"KELLY v. IRELAND","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON PERSON , a lawyer practising in GPE .","The following are the main allegations which led to the applicant \u2019s prosecution ( drawn from the later ORG judgment ) .","The applicant and a co - accused , WC , were charged with membership of an unlawful organisation styling itself ORG ( \u201c IRA \u201d ) contrary to section CARDINAL of the Offences Against the State Act , DATE as amended . It was alleged that ORG , in association with CARDINAL others , planned to open a lap dancing club in GPE ( \u201c the Club \u201d ) and engaged a company to provide security . The ORG was due to open on DATE . On DATE one of the principals in the security company requested a meeting with ORG at lunch time . The meeting was attended by ORG , ORG ( CARDINAL of the partners in ORG , ORG , the applicant and his co - accused . In the course of this meeting , the applicant introduced his co - accused as \u201c the top man \u201d , meaning the top man in the ORG . It was alleged that ORG said that certain people in GPE did not want the club to open but that they would make sure it would open if a donation was given to ORG ( \u201c CIRA \u201d ) and , that if a donation was not made , the dancers and ORG \u2019s girlfriend would be hurt and the premises would be petrol bombed . Initially , a payment of \u20ac MONEY ( ORG ) was sought , but after some discussion this was reduced to \u20ac MONEY . The \u20ac MONEY was ultimately paid in instalments .","On DATE the applicant and WC were arrested , questioned and charged with the offence of membership of an illegal organisation ( the IRA ) pursuant to section CARDINAL of the Offences Against the State Act CARDINAL , as amended ( \u201c the CARDINAL LAW \u201d ) . During police questioning ( under LAW CARDINAL of the Offences Against the State ( LAW DATE , \u201c the DATE LAW ) the applicant denied membership of an unlawful organisation .","NORP The applicant and WC ( \u201c co - accused \u201d ) were tried before the SCC in DATE over DATE . On DATE of the trial , the applicant \u2019s co - accused pleaded guilty . The trial proceeded and the SCC had regard only to evidence insofar as it concerned the applicant . In all , the SCC heard CARDINAL witnesses , QUANTITY of whom testified on behalf of the prosecution and CARDINAL , including the applicant , for the defence .","The ORG delivered its judgment on DATE . The judgment gave a detailed account of the relevant evidence of every witness followed by an assessment of the credibility of each .","NORP The principal witness for the prosecution was DM . He gave evidence as to a meeting that took place on DATE , DATE upon which the club was due to open . He identified the CARDINAL accused ( WC and the applicant ) as being present at that meeting . He testified as to the threats made by WC in the event of a required contribution of \u20ac MONEY not being made to ORG . When he had replied that he did not have that amount negotiations took place and the amount was reduced to \u20ac CARDINAL,CARDINAL.CARDINAL . The dates upon which the instalments were to be paid were then agreed . He paid the first CARDINAL instalments to the applicant \u2019s co - accused and on DATE he had met with both men and had handed over a further instalment of \u20ac MONEY to the applicant . The witness was cross - examined by counsel for the applicant . He confirmed that the applicant and his co - accused made themselves known to him to be ORG . He did not report the matter to ORG ( police ) straightaway because he was afraid of his life . His first contact with the police came when he received a telephone call from a sergeant whose identity he had to check out in order to ascertain that he really was a member of the police force . He said that he was \u201c in the Witness Protection Programme having received threats to his life and having been told that \u201c they \u201d would stick a hammer into his head in messages left on his phone from [ the applicant ] . \u201d","The SCC found him to be a truthful witness :","\u201c Vigorous efforts were made to discredit this witness by putting to him that he had a record of cocaine abuse , drunkenness , lying , theft and involvement in fraudulent conversion . He gave his evidence in a forthright manner both in examination and cross - examination . Throughout his evidence it was apparent to the ORG from his demeanour that he was in fear .","...","The ORG is satisfied that he was indeed in fear of both the accused and of ORG . It is for this reason he accepted entry into the Witness Protection Programme and removed himself from GPE and pending the trial for DATE remained in isolation . The ORG is satisfied that he is a truthful witness . \u201d","The trial court also heard evidence from ORG and ORG . An application was made by the prosecution to treat ORG as a hostile witness , which was initially refused but subsequently granted . As to the evidence of ORG , ORG held :","\u201c The witness throughout his evidence was hesitant and there was frequently a very long pause between a question posed by [ Counsel for the prosecution ] and the answer . At a later stage in his evidence he was clearly terrified and the impression of the ORG was that he was anxious that he should give no answer that could implicate [ the applicant ] or the IRA in the events described by [ DM ] and in the final stage of his evidence that while implicating the ORG he was anxious that he should not implicate [ the applicant ] . The stress which he was under was apparent . \u201d","ORG gave evidence that he was present at the meeting in DATE which was held because it had been brought to his attention by ORG that there was a potential threat to the staff and business . It was the first occasion he had met the applicant and the co - accused who had been introduced as being another security company who would be able to provide extra security at a cost , initially , of \u20ac CARDINAL,CARDINAL.CARDINAL but subsequently \u20ac MONEY . He took control of the last CARDINAL payments . He found DM to be dishonest but gave no instances of this . The applicant had never threatened him . He had never been in fear of the applicant . Upon cross - examination he denied having extensive contact with the applicant since the trial started . The SCC held :","\u201c The witness was not convincing in his evidence . ... The ORG regards his account of the manner in which the sum sought by [ the applicant ] and [ WC ] was negotiated upwards of \u20ac CARDINAL,CARDINAL to \u20ac CARDINAL,CARDINAL so unlikely as to be incredible .... He offered no plausible explanation as to why any money should be paid to [ the applicant ] and [ WC ] for extra security in the circumstance where there was not evidence of any discussion as to the nature of that extra security if any and when it was his wish that they should not attend at the LOC his agreement to pay this sum when he did not believe [ DM ] \u2019s reportage of threats is not credible .","...","In his evidence he created an impression of being evasive .... The impression left upon the ORG by the witness \u2019s manner of giving his evidence is that he is an untrustworthy witness . \u201d","A police Chief Superintendent gave evidence in accordance with section CARDINAL(CARDINAL ) of the Offences Against the State ( Amendment ) Act DATE , as amended ( \u201c the DATE LAW ) of his belief that the applicant had been a member of the IRA on the relevant date . He had served DATE in the police ( of which DATE were in \u201c the fight against subversion \u201d ) and he was , at that time , in charge of the ORG involved in receiving and analysing sensitive information and intelligence relating to subversion . He gave evidence that he believed that the applicant was a member of the IRA on the date of his arrest . He also stated that he believed that the applicant had been a member of the IRA for DATE prior to that date and that he had been associated with the IRA for DATE before being sworn in as a member . He stated that he based his belief on matters other than those that related to the applicant \u2019s arrest . ORG was cross - examined as to the source of his belief but he pleaded privilege on the basis that the disclosure of his sources would endanger life and would endanger the ongoing police operations against the IRA .","The applicant argued that the SCC should refuse the claim of privilege since , in order to have a fair trial , the accused must be told the identities of the informants that went to make up the belief of ORG . In the course of its ruling on this application the ORG reviewed the legal authorities on \u2018 informer PERSON and the \u2018 innocence at stake\u2019 exception thereto . It cited , in particular , the case of ORG and ORG [ DATE ] CARDINAL IR CARDINAL where O\u2019Flaherty J had said :","\u201c In effecting the balance between the interest of the public in determining and detecting crime and the interest of an accused person , CARDINAL important consideration which is relevant to this case is that the ORG will have regard to a risk of serious harm or death to persons whose identity is disclosed . \u201d","The SCC was satisfied that disclosure of the sources upon which ORG relied for his belief :","\u201c would have the effect of endangering ongoing PERSON operations against the ORG and would expose these sources , and particularly non - PERSON sources , to a real and substantial risk of serious harm or death .","The evidence given to this ORG . . . is that threats have been made and the effect of those threats upon the witnesses concerned , namely [ DM ] and [ ORG ] , has been apparent to ORG , not just in the oral evidence which they gave , but in their demeanour while giving evidence and which demeanour made it clear that they , themselves , were in serious harm . [ DM ] repeated on a number of occasions that he is in fear of his life and the consequence of threats to date made upon him . In these circumstances , the ORG is satisfied in weighing the respective interests of the public and the accused that it must give preference to that of the public in having crime deterred and detected . \u201d","In making its ruling the ORG noted that it was for the trial court to attach to the statement of belief , as is the case with all other evidence , such weight as it considers appropriate in all the circumstances . ORG claim of privilege was therefore upheld .","A Detective Chief Superintendent was called in relation to a detention matter which , it transpired , was not in issue . CARDINAL detective sergeants gave evidence about their interviews with the applicant in DATE , during which the applicant was questioned about joining the organisation at a house in GPE and about his associations with WC . The applicant denied being a member of the IRA . CARDINAL of the Sergeants gave evidence as to the identification parade .","The final prosecution witness applied pursuant to Rule DATE ) of The Offences Against the State Acts CARDINAL - CARDINAL LAW DATE PERSON . CARDINAL of DATE to be permitted to give her name and address in writing to the court . She handed in a letter to the court in which she had expressed concern for her own safety . ORG deferred dealing with the application until the conclusion of her evidence . She gave evidence as to how she had assisted ORG both financially and through her interior design skills with his project and of how she had been employed in a managerial capacity in the club . She met the applicant and his co - accused DATE after the club had opened . At the conclusion of her evidence the court ordered that her name and address should not be disclosed in court . In assessing her credibility , the SCC found that she had given her evidence in a forthright manner and was satisfied that she was a truthful witness .","The defence called CARDINAL witnesses . The applicant pleaded not guilty . He testified that he had left school at DATE and that he had been in ORG for DATE . Prior to his retirement , he became involved in the provision of security services as part of his return to civilian life . It was in this context that he had come to know his co - accused and ORG . He accepted that the meeting of DATE took place . When asked why he brought WC to that meeting he replied that he had been in his house at the time and that when told by the applicant that he had to go into town to meet some people , he ( WC ) said that \u201c he would tag along \u201d . He said that the meeting concerned the provision of bona fide security services and that there was no question of the involvement of the IRA . He denied that he knew that his co - accused was a member of the ORG , although he knew that he had been a member of another illegal organisation ( ORG ) .","In relation to the applicant , the SCC held :","\u201c The witness gave his evidence in a straight forward and vigorous manner . There are inconsistencies within the same . He was reticent about his knowledge of and prior relationship with [ a person ] and likewise his relationship with [ WC ] outside the circumstances mentioned in the evidence of prosecution witnesses . His account of the arrangement for payment for the additional security at the [ ORG ] lacks credibility . .... The witness \u2019s evidence as a whole makes clear that his answers at interview to Detective Sergeant ... quoted in this judgment were untrue and misleading . ORG is satisfied that it should approach his evidence with caution .","...","The court finds his account of the circumstances in which [ WC ] came to be present at the meeting in NORP ... improbable to the extent that it is unbelievable . It is not credible that [ WC ] was present in his house on one of his regular social calls on DATE when the phone call from [ ORG ] was received and that [ WC ] simply tagged along to the meeting as if he had nothing better to do but that he then took control of the meeting and took part in the separate private meeting to the exclusion of [ the applicant ] and there negotiated the agreement for the payment of \u20ac MONEY . Further his account of the arrangement for payment for the additional level of security lacks credibility .... Further he was reticent about his previous relationship with [ WC ] in connection with meetings in GPE and GPE . ... Having regard to these matters where there is a conflict between the evidence of [ the applicant ] and that of [ DM ] or [ ORG ] the evidence of [ DM ] and [ ORG ] is to be preferred .","ORG , a former employer of ORG , was also called by the defence . He gave evidence of a report he had received from his security firm that ORG had been taking alcohol and stealing at work . The court noted that this evidence was hearsay and that no weight whatsoever should be attributed to it . His evidence of having employed and dismissed ORG was accepted . It was noted that the alleged reasons for that dismissal had been denied by ORG in evidence .","The applicant \u2019s brother and an officer from ORG were also called . The former had introduced the co - accused to the applicant and the latter had been the applicant \u2019s former commanding officer for DATE . He testified that for most of that period the applicant \u2019s conduct rating was excellent . He confirmed the discussion between himself and the applicant as to the advisability of retirement in the light of allegations that he was a member of the IRA .","The SCC considered and assessed the evidence adduced at the trial . It accepted in its judgment the evidence of ORG as to his belief that the applicant was a member of the IRA . It took into account when assessing the weight to be attributed to that evidence that privilege had been granted in respect of the information grounding his belief . It found , however , that the statement of \u2018 LAW was supported by additional corroborative evidence .","This additional evidence included evidence admissible under section CARDINAL(CARDINAL ) of the CARDINAL Act of the applicant \u2019s association with his co - accused who had pleaded guilty to membership of an unlawful organisation . In particular , the SCC considered that the evidence demonstrated that it was the applicant who had arranged the meeting on DATE at which he had introduced his co - accused as a \u201c top man \u201d in the IRA ( evidence of ORG ) ; that sums of money had been demanded for the ORG from ORG under threats of violence ; that his co - accused pretended to have an accent from GPE , the applicant knew he did not have such an accent and his failure to comment on this during the meeting was evidence that they acted in concert in order to reinforce and confirm the IRA connection of the applicant and his co - accused ; that the applicant was involved in negotiations for the payment of \u20ac MONEY in instalments ; that \u20ac CARDINAL was paid directly to the applicant ( evidence of DM ) ; and that the applicant had attended a separate meeting in a house in GPE where another person was introduced by the co - accused as \u201c top man in GPE \u201d meaning the top man in the IRA ( evidence of ORG ) .","In addition , the SCC found that the applicant \u2019s answers to police questions in interview , which were material to the investigation of the offence , were untrue and misleading . The false or misleading nature of those responses was \u201c quite clear \u201d from the evidence of the applicant himself as well as of other witnesses . Those responses were designed to give the impression of distance between himself , on the one hand , and his co - accused , the meeting on DATE and the ORG , on the other . In so distancing himself during a police interview about membership of an unlawful organisation , he inferred that those activities were connected to the organisation .","NORP Moreover , the trial court found that the applicant \u2019s evidence concerning how his co - accused had \u2018 tagged along\u2019 to the meeting in DATE and had then taken it over was simply not credible . His account of the arrangement for payment of the additional level of security also lacked credibility . His disposition not to tell the truth had to be borne in mind in evaluating his evidence . Having regard to all of the above , where there was a conflict of evidence between the applicant and that of ORG \/ ORG , the latter was to be preferred .","On the entirety of the evidence adduced , the SCC was satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged . He was found guilty and sentenced to DATE imprisonment .","NORP The applicant appealed to the ORG and argued that his right to a fair trial ( under LAW and LAW ) had been breached by the refusal to disclose the source of ORG belief . He argued that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case . His appeal was dismissed by judgment of DATE , although the appeal court reduced the sentence to CARDINAL years\u2019 imprisonment .","In dismissing the appeal , the ORG found that in the course of a lengthy judgment the SCC had indicated that it had laid very great emphasis on the demeanour of the witnesses in the witness box and on the manner in which they had given their evidence . The case involved striking conflicts of evidence which could not be explained simply by errors of memory or lapse of time so that , clearly , false and perjured evidence had been given by some witnesses . The ORG was impressed by the care with which the SCC had assessed the credibility of the various witnesses and the clear way in which it had expressed its findings . The ORG had \u201c no doubt that there was credible evidence upon which such findings could be made \u201d and it did not therefore interfere with the findings of fact of the SCC .","The ORG noted that ORG had given evidence of his belief that the applicant was a member of the IRA at the relevant date and that under cross - examination he had claimed privilege against disclosure . It also noted that the problem related to information in his possession which quite possibly was not documented at all . Thus , the simple solution of allowing the trial court to see the disputed documentation could not really be adapted to the circumstances of the present case .","There was no doubt that there was a long established principle that , in certain circumstances , the police were entitled to refuse to disclose sources of information . There was undoubtedly a serious public interest in ensuring that persons who might be subject to intimidation and threats , if not actually in danger of their life , should be protected to ensure that information in their possession would be given to the police to assist in the prosecution of wrongdoers . As against this , there was also the constitutional obligation to ensure that an accused had a fair trial . The ORG considered that the balancing of those conflicting rights and interests could only be determined by the trial court . It had to be remembered that that the purpose of section CARDINAL(CARDINAL ) of the DATE Act was simply to make the statement of belief of ORG admissible as evidence and that , while it may be persuasive , it is not conclusive . The trial court must consider that evidence in the light of all their surrounding circumstances and , in particular , in the light of the other evidence in the case .","In the present case , the trial court could certainly take into account the fact that ORG refused to identify the basis of his belief , as well as the fact that the applicant appeared to have made a false statement to the police and the evidence of the other witnesses . Having decided that it accepted the evidence of DM , the SCC was entitled to treat this evidence as corroboration of the belief of ORG . As claims of privilege of this nature were a matter for the trial court , the applicant \u2019s argument that he did not receive a fair trial was rejected . The ORG left open the question of whether it could interfere in a case where there was no other evidence corroborating the belief of ORG .","An appeal was taken to ORG on a point of law pursuant to a certificate of the ORG . ORG considered whether the limitations placed on the applicant \u2019s cross - examination of the Superintendent as to the source of his belief rendered his trial unfair .","On DATE ORG unanimously dismissed the appeal . PERSON gave the judgment of ORG ( with which PERSON as well as GPE and PERSON concurred ) . PERSON delivered a separate judgment .","Geoghegan J. considered it essential to consider the purpose of section CARDINAL(CARDINAL ) of the DATE Act . The legislation was passed in the context of preserving the security of the ORG and was introduced to allow reliable information about membership of an unlawful organisation from a senior police officer to be admitted into evidence given the difficulty in getting direct evidence from lay witnesses who would not come forward for fear of reprisal . As with all anti - terrorist offences , there would also be equal apprehension about intimidation of witnesses . It was reasonable to infer that the relevant provision was enacted out of bitter experience . A limitation on cross - examination was permitted by the statutory provision . However , informer privilege , even without the statutory provision , may involve more than merely refusing to divulge the name of an informer . The correct interpretation of section CARDINAL(CARDINAL ) was that it allowed cross - examination about the basis of the belief evidence but not to the extent that it interfered with or defeated a legitimate plea of privilege .","He noted that the trial and appeal courts had fully considered the weight to be given in a trial to the belief evidence . He considered that the SCC had the right methodology and , in any event , that there was substantial evidence implicating the applicant independently of the belief evidence .","He went on to note that it had been the practice of the SCC not to convict on the basis of belief evidence only and commended the court on that practice . He also commended the practice of the ORG not to initiate prosecutions based solely on belief evidence . These self - imposed restrictions of the SCC and the ORG aimed at ensuring a fair trial . However , in the present case , there was plenty of outside evidence and it was well within the discretion of the SCC to convict the applicant for the reasons given by the ORG .","PERSON went on to review domestic case law on the relevant provision and agreed that the balancing of the conflicting rights and interests was to be determined by the trial court . ORG belief had no special status but was merely a piece of admissible evidence ( as stated by the ORG in ORG v. GPE , judgment CARDINAL DATE ) . Although the trial court was entitled to take into account the fact that ORG refused to identify the basis of his belief , it was also entitled to take into account that the appellant had made a false statement to the police and to have regard to the corroborating evidence of other witnesses , particularly that of Mr. PERSON which it accepted .","PERSON noted that the prosecution evidence was not limited to the belief evidence of ORG . The SCC had before it and had accepted the evidence of ORG , whom it had regarded as a truthful witness and in respect of whom it was satisfied that \u201c throughout his evidence it was apparent to the court from his demeanour that he was in fear \u201d both of the applicant and of the CIRA . While there was a conflict concerning amounts , there was also evidence that \u20ac MONEY was paid to the co - accused and MONEY to the applicant . In addition , the SCC had before it the evidence of ORG whom it also accepted as being in fear . Though treated as a hostile witness , he nevertheless gave evidence that the applicant described his co - accused as a \u201c top man \u201d using that expression in relation to the ORG . It was unnecessary to refer to this evidence in any greater detail as it was clear that there was significant evidence before the ORG , which was accepted by that court , of the involvement of the applicant with an unlawful organisation . The SCC had concluded by stating that on \u201c the entire of the evidence adduced before the Court \u201d it was satisfied beyond reasonable doubt that the applicant had been guilty of the offence with which he was charged .","The particularity of the present case was whether the fact that an accused person , who was prepared to give evidence denying membership of an unlawful organisation and was denied the right to cross - examine ORG as to the sources of his belief , had had a fair trial .","PERSON recalled the nature of an unlawful organisation as defined by CARDINAL of LAW and considered it obvious both from that definition and from common sense that such organisations are , in their nature , secret and violent . It followed that it would be extremely difficult to produce direct evidence capable of sustaining a prosecution . Intimidation of possible witnesses , and worse , was to be presumed . Where the police have secret intelligence , they would be unable to produce informants as witnesses without compromising them . Hence the need for an unusual type of evidence permitted under section CARDINAL(CARDINAL ) of the CARDINAL LAW . ORG had chosen to designate a person holding the rank of Chief Superintendent as a witness whose belief might be accepted as evidence . Whether or not an accused person was a member of an unlawful organisation was a question of fact and ORG gave evidence , not of fact , but of belief . ORG simply states his belief .","Fennelly J. noted that the prosecution had submitted that it was no longer the practice of the ORG to prosecute on the basis of belief evidence alone . Having reviewed domestic case law on section CARDINAL(CARDINAL ) he noted that the specific circumstances of the present case ( where the accused wishes to mount a full defence ) had not previously been the subject of a ruling by the ORG .","The Chief Superintendent merely stated that he was of the belief that the accused was a member of an unlawful organisation . That type of evidence was , in itself , a novelty . Under the normal rules of evidence , only expert witnesses were permitted to give evidence of their belief and , even then , not on simple questions of fact . ORG could , no doubt , be regarded as an expert in his field . That , however , was not the real problem . The real problem was that , where privilege was claimed , as it inevitably was , the defendant did not know the basis of that belief .","This did not mean , in ORG view , that courts should generally or at all disallow claims of privilege . The evidence of ORG before the SCC was perfectly plausible , indeed compelling . The ORG was right in expressing the views it did and the SCC was entitled to accept such evidence . It was in the nature of an unlawful organisation to threaten , intimidate and endanger the lives of those who co - operate with the police or give evidence against members .","The courts had developed over DATE extensive rules and principles requiring the prosecution to preserve and disclose to the defence in advance of trial any materials in its possession which might give rise to a reasonable possibility of securing evidence relevant to guilt or innocence . It was implicit in this case law that the prosecution had to disclose to the defence any material of possible relevance to guilt or innocence . In several of these cases , the ORG was prohibited from continuing with prosecutions when a real risk of an unfair trial flowed from non - compliance with these principles .","The present applicant , however , made his case very firmly on the ground of denial of a fair trial as a result of infringement of the effective right to cross - examine ORG and , by extension , any of his informants who might be identified if he revealed his sources . ORG reviewed case - law of the NORP , GPE and GPE courts on the right to cross - examination . He also reviewed the case law of this ORG ( notably PERSON v. the GPE , DATE , Series A no . CARDINAL ; PERSON v. the GPE , DATE , Reports of Judgments and Decisions CARDINALII ; PERSON and Others v. the GPE , DATE , Reports CARDINAL ; and PERSON and PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALII ) . He concluded that authorities cited from all relevant jurisdictions demonstrated that there was an inescapable obligation on the courts to guarantee the overall fairness of a trial and he believed that , in GPE , the right to cross - examine one \u2019s accusers was an essential element in a fair trial . While restrictions could be imposed in the interests of overall balance and the efficiency of the criminal justice system , derogations , for overriding reasons of public interests , from normal procedural rights of the defence were not to go beyond what was strictly necessary and should not \u201c imperil the overall fairness of the trial \u201d .","NORP The essential question was whether the undisputed restriction on the right of the accused to cross - examine his accusers and to have access to the materials relied upon by the prosecution , had been unduly restricted so as to render his trial unfair . PERSON believed that the privilege made by ORG constituted an undoubted infringement of the normal right of the accused to have access to the material which underlay the belief expressed and , to that extent , had constituted a restriction on the effectiveness of his right to cross - examine his true accusers and it had , for that reason , the potential for unfairness .","On the other hand , Counsel for the ORG had pointed to a number of compelling circumstances to justify the course of action adopted . In the first place , resort to belief evidence applied only in the case of organisations which , by their nature , represented a threat , not only to the institutions of the ORG , but to individuals who are prepared quite properly to cooperate with the ORG in securing the conviction of members of such organisations . This made it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers . Secondly , the legislature allowed such evidence to be given by police officers of particularly high rank who could be presumed to have been chosen for having high standards of integrity . Thirdly , the procedure applied only while there was in force a declaration that \u201c the ordinary courts are inadequate to secure the effective administration of justice .... \u201d The offence was a scheduled CARDINAL : thus the cases would be heard by the SCC , a court composed of judges who had to be presumed to apply only the highest standards of fairness . The section also enjoyed a presumption of constitutionality . Any restriction on the right to cross - examine , which it implied , had therefore be limited to the extent that was strictly necessary to achieve its clear objectives .","As to its application in the present case , it was of crucial importance that there was quite extensive evidence , other than the evidence of ORG , which convinced the SCC that the applicant was a member of the IRA on the relevant date . While the SCC said that it had taken into account the fact that ORG had claimed privilege , PERSON noted that the ORG should have explained the weight , if any , which it attached to the evidence of ORG given the grant of privilege . However , in the particular circumstances of this trial , PERSON did not think there was any overall unfairness . He did not think that the undoubted restriction on the rights of the accused went further than was strictly necessary to protect other potential witnesses or informants and he did not see how else the identity and safety of those other witnesses could have been protected . Thus it was , in the literal sense , necessary to prevent the defence from learning who they were . This , in turn , made it inevitable that the right to cross - examine would have to be restricted .","The matter , he said , might be quite different in a case where the evidence of ORG was the sole plank in the prosecution \u2019s case . However , ORG was not called upon to decide this issue and , in the particular circumstances of this case , he found that there was no unfairness in the trial of the applicant .","The applicant was released from prison on DATE .","Article CARDINAL reads , in so far as relevant , as follows :","\u201c CARDINAL . No person shall be tried on any criminal charge save in due course of law . ...","CARDINAL(CARDINAL ) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice , and the preservation of public peace and order .","( CARDINAL ) The constitution , powers , jurisdiction and procedure of such special courts shall be prescribed by law . ... \u201d","The ORG refers to the description of the matters leading to the adoption of LAW in its judgment in GPE ( no . CARDINAL ) , DATE , \u00a7 \u00a7 DATE , Series A no . CARDINAL .","LAW allowed for the establishment of the SCC ( section CARDINAL ) to try offences which were not amenable to trial in normal domestic courts . The SCC is a non - jury court and sitting judges ( normally CARDINAL , drawn from LOC ) hear the evidence and make findings of fact .","Section CARDINAL of the CARDINAL Act allows for certain offences to be \u201c scheduled \u201d which offences are then to be tried before a SCC . Secondary legislation in DATE defined those scheduled offences ( Offences against ORG Order DATE S.I. No . CARDINAL of DATE ) .","Section CARDINAL(CARDINAL ) of the CARDINAL LAW provides that \u201c it shall not be lawful for any person to be a member of an unlawful organisation \u201d . The ORG was declared unlawful by a suppression order made under LAW ) . Accordingly , the SCC tries , inter alia , charges of membership of unlawful organisations .","This section , as amended , is headed \u201c Evidence of membership of unlawful organisation \u201d and reads as follows :","\u201c CARDINAL(CARDINAL)(a ) Any statement made orally , in writing or otherwise , or any conduct , by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall , in proceedings under LAW of LAW , be evidence that he was then such a member .","( b ) In paragraph ( a ) of this subsection \u2018 conduct\u2019 includes-","( i ) movements , actions , activities or associations on the part of the accused person , and","( ii ) omission by the accused person to deny published reports that he was a member of an unlawful organisation , but the fact of such denial shall not by itself be conclusive .","( CARDINAL ) Where [ a police officer ] , not below the rank of Chief Superintendent , in giving evidence in proceedings relating to an offence under the said section CARDINAL , states that he believes that the accused was at a material time a member of an unlawful organisation , the statement shall be evidence that he was then such a member .","( CARDINAL ) Subsection ( CARDINAL ) of this section shall be in force whenever and for so long only as Part V of LAW is in force . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71427","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2005,"docname":"RAMADAN & AHJREDINI v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , Mr PERSON and PERSON , are husband and wife . They originate from what is now the Former GPE ( \u201c the FYR of NORP \u201d ) and are of ethnic NORP origin . They were born in DATE and DATE respectively and live in GPE . They introduced the application also on behalf of their daughter PERSON , born in DATE , and their son PERSON , born in DATE . They are represented before the ORG by PERSON GPE . PERSON , a lawyer practising in Nieuwegein . The respondent Government are represented by Mr R.A.A. PERSON and PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants , accompanied by their daughter PERSON , arrived in the GPE on DATE . They applied for asylum on DATE . In an interview with an immigration official on DATE they stated , inter alia , that their parents and siblings were living in the FYR of GPE .","On DATE the Deputy Minister of ORG ( ORG ) rejected the asylum application and informed the applicants that they would not be allowed to await the decision on any objection ( bezwaar ) they might lodge . The applicants lodged an objection and also requested ORG ( arrondissementsrechtbank ) of GPE , sitting in GPE , to issue a provisional measure in order for them to be allowed to await the outcome of their objection in the GPE . The President of ORG rejected the ORG request on DATE . From that moment on , the applicants were no longer authorised to stay in the GPE . However , no action was taken to expel them .","On DATE the applicants\u2019 son PERSON was born .","The Deputy Minister dismissed the objection against the refusal of the applicants\u2019 request for asylum . The appeal against that decision was rejected by ORG of The GPE sitting in GPE on DATE . No further appeal lay against this judgment .","In a letter of DATE the ORG lawyer requested the Deputy Minister to seek advice from ORG Medische Advisering ; \u201c MAB \u201d ) in order to see whether the medical situation of the applicants and PERSON should not lead to their expulsion being deferred in accordance with LAW DATE ( Vreemdelingenwet DATE ) . The lawyer referred to a letter of DATE from the applicants\u2019 general practitioner according to which \u2013 due to the tense and insecure situation in which they had found themselves in DATE the applicants were experiencing difficulties in dealing with PERSON , who was a difficult baby . A return to their country of origin meant that the applicants , for the time being , would not be capable of looking for different ways of dealing with PERSON which , in these critical DATE , would entail consequences for the rest of his life .","The Deputy Minister informed the applicants that she perceived no cause to consult ORG . The applicants lodged an objection against the Deputy Minister \u2019s refusal , which was declared inadmissible . The applicant \u2019s subsequent appeal and request for a provisional measure were rejected by the Acting President of ORG of GPE , sitting in GPE , on DATE . The Acting President held that , as long as the applicants were not actually being expelled , the refusal of the Deputy Minister did not affect their interests . No further appeal lay against this decision .","In a letter of CARDINAL DATE to the ORG lawyer , a psychiatrist working at ORG ( Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg \u2013 \u201c RIAGG \u201d ) , wrote that both applicants were suffering from an adjustment disorder . Although the ORG daughter PERSON was doing reasonably well , a forced return to the country of origin might , especially for her , lead to serious psycho - traumatic consequences .","On DATE the applicants lodged a request for a residence permit on compelling humanitarian grounds or , alternatively , for the purposes of receiving medical treatment in the GPE . When , on DATE , the Deputy Minister had still not taken a decision , the applicants filed an objection against the implied refusal ( fictieve weigering ) of their request .","In DATE the second applicant underwent an operation for a slipped disc . In view of her long case history , the neurologist treating her considered it likely that she would continue to have an increased vulnerability to physical and psychological violence . The neurologist was of the opinion that a forced return of the second applicant to the FYR of GPE , where such a situation pertained , might lead to her becoming physically disabled .","A report dated DATE from ORG concluded that both applicants were suffering from an adjustment disorder . The first applicant had emotional and behavioural problems and the second applicant was suffering from anxiety and depression . The applicants had initially been treated by a PERSON psychiatrist and subsequently by their general practitioner . To the best of ORG knowledge , the applicants were not receiving specialist treatment at the time of the report . The medical conditions from which the applicants were suffering could be treated in their country of origin in more or less the same way as in the GPE . ORG further stated that a failure to provide immediate treatment to either of the applicants would not lead to an acute medical emergency ( a situation where a person is suffering from a disorder which in its pertaining phase , if not treated immediately , would lead to death , invalidity or another form of serious psychological and\/or physical harm ) . Neither applicant required intensive psychiatric or in - patient treatment , and they showed no symptoms of psychological decompensation or obsessive - compulsive suicidal tendencies . The longer term consequences of a failure to provide treatment would probably be the applicants\u2019 being afflicted for longer and\/or more seriously compared with the situation in which they received counselling . It could not be excluded that in the longer term a medical emergency might arise .","In a letter of DATE , the PERSON psychiatrist informed the ORG lawyer that , to his consternation , he had found that the psychological state of health of both applicants and their children had seriously deteriorated since he had last examined them in DATE . This had been caused by the chronic uncertainty with which the applicants had been confronted since DATE . The first applicant was suffering from a depression with psychotic characteristics , and the second applicant from a depressive disorder . Both required immediate and continuing specialist help , which would be provided by a psychiatric nurse and the psychiatrist in the form of consultations and medication . On DATE the applicants\u2019 general practitioner confirmed that the situation of , in particular , the first applicant had deteriorated . He was currently so frantic that the doctor feared the worst if he were to be expelled . The doctor further thought it likely that the first applicant would attempt to evade expulsion , if necessary through suicide . Should the first applicant nevertheless reach the FYR of GPE , it was doubtful that adequate help would be available there .","The Deputy Minister transmitted the information from the PERSON psychiatrist and the general practitioner to ORG . By letter of CARDINAL DATE ORG commented on the new information . While conceding that the applicants\u2019 condition had deteriorated , it concluded that there was no reason to amend the earlier recommendations and it was still felt that the applicants could be treated in their country of origin . As regards the possibility of the first applicant committing suicide , ORG noted that this was not related to the discontinuation of treatment but to a negative decision on his request and return to his country of origin .","ORG further provided information on the system of health care in the FYR of GPE , which was stated as being well - developed , although a person \u2019s ethnic origin did play a role when it came to the question of availability of health care . Anti - depressants could be obtained from private pharmacies ( at a fairly high price ) and from state hospitals , albeit that stocks were running low in the latter establishments and anti - depressants were therefore only used to treat serious cases . Treatment for various psychological disorders was said to be available , with psychotherapy commonly used as a treatment modality .","A hearing on the applicants\u2019 objection took place on DATE . On this occasion the applicants submitted , inter alia , that regard should also be had to the fact that they had been living in the GPE for DATE and to the effects which an expulsion would have on their minor children who were going to school in the GPE .","In a letter of DATE to the ORG representative , the psychiatric nurse treating them reported a further deterioration of their psychological situation . The applicants were being treated in accordance with a PTSD - protocol . It was expected that their complaints would deteriorate if they had to return to their country of origin . The second applicant was quoted as saying she would prefer to be dead in that case .","On DATE the Deputy Minister upheld the applicants\u2019 objection in so far as it was directed against the failure to decide in a timely fashion on the request for a residence permit , but dismissed the objection for the remainder . Noting that according to ORG , treatment for the applicants\u2019 medical and psychological complaints was available in the FYR of GPE , the Deputy Minister found that the applicants were ineligible for a residence permit for the purpose of receiving medical treatment in the GPE , since it could not be said that the latter country was the most appropriate country ( het meest aangewezen land ) for the applicants to receive such treatment . The applicants also did not have sufficient financial means to pay for treatment and neither did they hold valid passports . The Deputy Minister further considered that the applicants had failed to establish that compelling reasons of a humanitarian nature existed , on the basis of which they should be granted a residence permit .","The applicants appealed this decision to ORG of The Hague , sitting in GPE , submitting , inter alia , that ORG had not itself examined the applicants but had based its conclusions on information obtained from others . Furthermore , the applicants maintained that treatment would not be available to them in the FYR of GPE , not in the last place because they were ethnic NORP .","ORG rejected the appeal on DATE , finding that the Minister for ORG ( Minister PERSON ; the successor of the Deputy Minister of Justice ) could reasonably have refused the requested residence permits .","The applicants lodged a further appeal with ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ; \u201c the ORG \u201d ) . In these proceedings they argued that there was no question of there being available in the ORG of GPE treatment more or less similar to that provided in the GPE . In this context the applicants submitted a number of reports from which they concluded that the health - care system in the FYR of GPE had fallen below western - NORP standards in DATE due to the conflict in the LOC . Treatment of psychological disorders only took place in the form of medication . According to a report drawn up in DATE by ORG , there were barely adequate therapy possibilities for the treatment of post - traumatic stress disorders . Moreover , the national system of health insurance was only open to officially registered nationals of the FYR of GPE . According to the applicants , they were unable to obtain the nationality of the FYR of GPE as they did not comply with certain requirements . Nevertheless , even insured persons generally needed to resort to bribery in order to obtain specialist treatment . The applicants concluded that an expulsion to the FYR of GPE , where they would arrive penniless and without employment and where they would not have access to any kind of treatment of their psychological problems , constituted degrading or inhuman treatment in breach of LAW .","Finally , the applicants argued that the physicians working at ORG were not independent specialists , as was illustrated by the fact that this Bureau had completely misjudged the situation in the FYR of GPE .","The ORG rejected the further appeal on DATE , holding that ORG had been correct in finding that the fact that treatment methods in the FYR of GPE were different than in the GPE did not mean that no treatment was available in the FYR of GPE . The reports submitted by the parties for the first time in the proceedings before the ORG could not lead to their further appeal being upheld , as ORG had not been able to have regard to the information contained therein . The ORG complaint to the effect that the question whether or not they would have access to health care facilities in the FYR of GPE had not been addressed by the Minister was also rejected , as the ORG held that this issue must be assumed to have played a role in the starting points of the Minister \u2019s policy . Moreover , the applicants were found to have failed to substantiate their complaint that the advice of ORG was not objective . Finally , the ORG held that it could not examine the applicants\u2019 argument relating to their inability to obtain the nationality of the FYR of GPE as this argument had not been raised by them in the proceedings before ORG .","In an e - mail message of DATE from the Officer of ORG of the ( GPE - based ) ORG , the ORG representative was informed that in the FYR of GPE psychological problems were mainly treated with medication .","In a letter of DATE from a ORG physician to the ORG representative , the first applicant was described as utterly desperate , extremely nervous and tense . He experienced the decision to remove the family to the FYR of GPE after such a long time as a death sentence and considered himself a failure as head of the family . In the opinion of the physician , the possibility of the first applicant acting on impulse or suicidally if the family were to be expelled should not be discounted .","The Mental Health Atlas-CARDINAL states , inter alia , the following as regards mental health care in the FYR of GPE :","\u201c A mental health policy has been reviewed and it is in the process of being adopted by the Government . The document is constituted of CARDINAL parts , namely ORG . ...","A National Master Mental Health Plan is already prepared by ORG ( assigned by ORG ) in collaboration with ORG . It is expected to be adopted shortly by the Government .","There is a list of essential drugs covered by ORG as part of the health insurance scheme . Currently , this list is under revision to reflect prevailing needs . ...","There are budget allocations for mental health services ... The country has disability benefits for persons with mental disorders . ... Mental health patients according to the newly developed law are treated in the same way regarding employment as persons with somatic disabilities . There are examples from practice in the cities of GPE and GPE where there are companies that facilitate the employment possibilities of mentally ill persons , an issue that previously was available only for persons with somatic disabilities . ...","The country had traditional hospital - based mental health services . New policy developments recognise the need for reform in this sector especially towards decentralisation and community - based services . ... A ORG for promotion and implementation of community - based services on mental health has been created . ...","... traditional hospital - based mental health services ... are not efficient and largely depend on a centralised organisation ; they have not been able to meet ... extensive needs . The services are unsatisfactory from the medical , psychological , human , outcome , efficiency or economic points of view . ...","The country has specific programmes for mental health for children . The host families , local health and social services , the local communities and society in general are all involved in tackling the refugee and internally displaced persons problem . ...","[ A number of ] therapeutic drugs are generally available at the primary health care level of the country . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5054","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2000,"docname":"GONTJAROW v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicants is a NORP national born in DATE . He resides in GPE .","He is represented before the ORG by PERSON , a lawyer in PERSON .","In DATE the applicant signed certain employment contracts on behalf of a group of companies . In decisions of CARDINAL DATE the relevant pension insurance company found that as the applicant \u2019s companies had not been registered as legal persons the applicant himself had to be regarded as the employer . As a result the applicant was obliged to pay MONEY ( approximately the same in ORG ) in employer \u2019s contributions . According to the attached notice of appeal , an appeal was to be signed by the appellant himself or any other author . If the appeal was not signed by the appellant , it should include a power - of - attorney and indicate the representative \u2019s profession and address .","The applicant contested the decisions of the pension insurance company in appeals to ORG ( el\u00e4kelautakunta , pensionsn\u00e4mnden ) . The appeals were signed by the applicant himself but indicated Mr ORG as their author . The addresses of both were stated .","In decisions of CARDINAL DATE ORG refused the applicant \u2019s appeals . The decisions were dispatched to the applicant \u2019s address by regular mail on DATE . The applicant allegedly received the decisions on DATE and on DATE he appealed to ORG ( vakuutusoikeus , f\u00f6rs\u00e4kringsdomstolen ) .","On DATE ORG declined to examine the merits of the applicant \u2019s appeals , considering that they had been lodged out of time . ORG noted that the appeals to ORG had been signed by the applicant himself and that he had been \u201c assisted \u201d by Mr ORG . In his appeal to ORG the applicant had explained that the letters from ORG had arrived in a post box which he did not empty DATE , inter alia due to his disability . Having been invited to explain this point further , the applicant had stated to ORG that in DATE he had not been expecting any mail which would have required action . As for ORG forthcoming decisions , he had expected to be notified thereof through his \u201c representative \u201d Mr ORG . ORG found that the applicant had not submitted sufficient evidence , inter alia of his allegation that he had received ORG decisions only on DATE . ORG concluded therefore that the applicant should be deemed to have received them on DATE , in accordance with the presumption stated in the relevant notice of appeal . Consequently , the applicant \u2019s further appeals should have been lodged at the latest on DATE .","The applicant applied to ORG for restoration of the time - limit for appealing against ORG decisions . He further sought to have ORG decision nullified ( poistaa , undanr\u00f6ja ) and applied for cost - free proceedings with PERSON as his representative . Mr ORG was indicated as the drafter of the application to have the time - limit restored .","On DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused the applicant \u2019s request for cost - free proceedings , noting that under law a grant to this effect was not possible in matters before ORG . ORG found no grounds for nullifying ORG decision or reinstating the proceedings ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57581","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":1984,"docname":"CASE OF SRAMEK v. AUSTRIA","importance":2,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"C. Russo","text":["ORG The applicant , who is a GPE citizen , lives in GPE in GPE .","Wishing to build a holiday residence in GPE , a village in the NORP Tyrol , she approached , with the assistance of municipal officials , the owners of a plot of land which had until then been used for agricultural purposes . Sale negotiations began in DATE and apparently led , in DATE , to an initial contract . DATE , Mrs. PERSON paid to the vendors the greater part of the agreed price . However , the definitive contract was not drawn up until DATE .","ORG Under section CARDINAL of ORG ( Grundverkehrsgesetz ) DATE , as amended by , inter alia , an LAW DATE which came into force on DATE ( \" the CARDINAL\/CARDINAL LAW \" ) , the contract could not take effect unless it were approved by the local ORG ( Grundverkehrsbeh\u00f6rde ) ; in fact , it contained a clause which so provided .","The LAW applies to agricultural and forestry land and also to any land over which rights are acquired by , in particular , a natural person who does not possess NORP nationality ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) .","ORG The local ORG for Hopfgarten at the office of ORG ) , to which the contract had been submitted , approved it on DATE ; the decision ( Bescheid ) was dated DATE .","ORG On DATE , ORG ( ORG , \" the Transactions Officer \" , see paragraph CARDINAL below ) at ORG of the Tyrol ( Amt der Landesregierung ) in GPE exercised his right of appeal ( GPE ) to ORG ( GPE ; LAW ) of the CARDINAL\/CARDINAL LAW and see paragraphs CARDINAL below ) . In his view , the contract fell foul of section CARDINAL ) of the CARDINAL\/CARDINAL Act .","Under that sub - section , where the purchaser of real property is a foreigner a contract of the kind in question can be approved only","\" if the acquisition of rights ( PERSON ) is not contrary to political ( staatspolitisch ) , economic , social ( sozialpolitisch ) or cultural interests ; such a conflict ( Widerspruch ) is deemed to exist , in particular , where ,","( a ) having regard to the extent of existing foreign ownership or to the number of foreign owners , there is a risk of foreign domination ( ORG ) in the municipality or locality concerned ,","( b ) ... . \"","In the submission of the Transactions Officer , there were , in fact , already CARDINAL foreign landowners in GPE and it could be seen from a series of decisions of ORG that this municipality was one of those where the danger of foreign domination was imminent . The contract in question was therefore contrary to social and economic interests within the meaning of the above - mentioned LAW .","The applicant received a copy of the appeal but did not file any observations in reply .","The Government Office of the ORG was organised in a number of \" groups \" and each group comprised several \" divisions \" . In the present case , the Transactions Officer was the director of group III ; his secretariat was provided by CARDINAL of the CARDINAL divisions in that group , namely division III b. CARDINAL .","ORG On DATE , ORG at ORG of the Tyrol held a hearing . ORG sat in camera but the parties , namely ORG and Mrs. PERSON , were present . The latter appeared in person , without the assistance of a lawyer .","In accordance with section CARDINAL(CARDINAL ) , no . CARDINAL , of the CARDINAL\/CARDINAL LAW ( see paragraph CARDINAL below ) , ORG was composed as follows : the elected mayor of a municipality in the GPE , who was a farmer experienced in real estate matters , as chairman ; a judge of ORG ; a civil servant from division III b. DATE of the CARDINAL divisions in group III - of ORG , as rapporteur ; the head of group III d ; the director of ORG , being the head of group III f ; a farmer ; and a lawyer .","The secretariat was provided by division III b. CARDINAL , to which the rapporteur belonged .","ORG According to TIME of the hearing , the rapporteur presented the facts and read out the expert opinions and observations received during the course of the investigation ; the latter concerned , inter alia , the percentage of the parcels of land in GPE which was in foreign hands . The Transactions Officer then requested the ORG to uphold his appeal on the ground that as there was already a risk of foreign domination in GPE , the acquisition of the land in question would be contrary to social and political interests .","The applicant stated that she had signed the initial contract ( Erstvertrag ) , which could not then be found , on DATE . As early as DATE , she had reached an agreement to purchase ORG and had received assurances that all would go well . Since that time , she had come to GPE several times each year to settle the matter . Her husband was living with the family in GPE , where he worked , but would be retiring shortly . She declared that she herself was prepared to apply for NORP nationality . Their permit to reside in GPE was temporary and she did not wish to return to GPE . She added that she had already made a first payment of MONEY . In conclusion , she requested that the contract be approved .","ORG On DATE , that is DATE , ORG upheld the appeal : referring to the above - mentioned section CARDINAL(CARDINAL)(a ) of the CARDINAL\/CARDINAL LAW , it refused to approve the transfer of title . Its decision ( PERSON ) was dated DATE .","The ORG noted firstly that according to a statement from the municipality of GPE , which had not been challenged at the hearing , there were CARDINAL foreign landowners in GPE , owning QUANTITY of land . There were CARDINAL inhabitants and CARDINAL families in the locality , though not all of them were landowners . The proportion of non - NORP owners already exceeded CARDINAL per cent and the extent of their holdings revealed a tendency towards foreign domination .","The ORG then recalled that for DATE past it had been refusing to approve the transfer of land in GPE to foreigners since it had concluded that there was a risk of foreign domination in the area . It had to take account , inter alia , of the effects of its decision on third parties . According to the ORG , experience showed that the approval of a contract between a landowner and a foreigner led to an influx of other foreigners who also wished to buy land in the locality . This caused prices to rise substantially , making it very difficult , if not impossible , for the indigenous population to find housing for themselves . For these reasons and in view of the scarcity of building plots in the GPE , very strict legal ( gesetzlich ) control had to be exercised : sales and purchases could normally be approved only if they contributed to the establishment or maintenance of an effective ( leistungsf\u00e4hig ) agricultural population or if they served to satisfy domestic land needs ( inl\u00e4ndischer PERSON ) for any kind of public or social purposes .","However , Mrs. PERSON was intending to use the land in question - at least for some time - for the construction of a holiday residence . Such an objective could easily be satisfied by the local hotel trade which , furthermore , was losing potential customers as a result of the construction of villas by foreigners . The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of , in particular , section CARDINAL(CARDINAL)(a ) of the CARDINAL\/CARDINAL LAW .","Lastly , ORG rejected the applicant \u2019s argument that she had already concluded a contract in DATE , that is at a time when NORP citizens were treated on an equal footing with NORP by virtue of a bilateral treaty dating from DATE . The ORG emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken . In its view , the DATE treaty had not established any equality between citizens of GPE in the area concerned . In the case in question , the transfer of ownership contemplated fell under LAW para . CARDINAL , as interpreted by ORG in a DATE memorandum which stated that the general regulations with regard to foreigners were applicable . Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded ( CARDINAL DATE , see paragraph CARDINAL above ) - though this was not the case , since the above - mentioned memorandum dated from DATE - , Mrs. PERSON could not claim that she had acted in good faith : she was obliged under LAW to seek approval of the contract within DATE and she alone bore the responsibility for not having done so .","ORG On DATE , the applicant appealed to ORG ) against the decision of ORG . She claimed that her right to inviolability of property and her right to a decision by the legally competent court ( gesetzlicher Richter ) had been infringed and relied on LAW , Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) and LAW .","As concerns the first complaint , Mrs. PERSON alleged that ORG had applied section CARDINAL(CARDINAL)(a ) of the CARDINAL\/CARDINAL LAW in a misconceived ( denkunm\u00f6glich ) manner by adopting an illogical approach ; amongst other things , it had concluded that there was a danger of foreign domination in GPE without being in possession of detailed documentation , without defining the risk in question and without enquiring into the actual position in GPE regarding real property ownership .","She further contended that ORG was not an \" independent tribunal \" within the meaning of Article CARDINAL ( article CARDINAL ) of the Convention .","On these grounds , she requested ORG to annul the decision under appeal or , in the alternative , to refer the case to ORG ( Verwaltungsgerichtshof ) .","Mrs. PERSON supplemented her grounds of appeal on DATE . She asserted that her lawyer had not been able to consult TIME deliberations . She had , in fact , learnt that the ORG had not given its ruling on DATE , immediately after the closure of the hearing . She inferred from this that the decision complained of had not been taken by the legally competent court .","She requested ORG to provide her lawyer with an opportunity of reading the above - mentioned TIME .","ORG dismissed the appeal on DATE ( ORG und ORG , DATE , vol . CARDINAL , no . CARDINAL ) .","It took the view that ORG was indeed a \" tribunal \" within the meaning of Article CARDINAL ( article CARDINAL ) of the Convention . It gave decisions which the executive could neither annul nor vary . As regards its members - who included a judge - , they had a degree of independence equal to that of judges . They were not bound by any instructions in the exercise of their functions and they could not be removed during their DATE term of office , except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties . ORG accordingly held that LAW ) had not been violated .","The applicant \u2019s other ground of appeal was also rejected . Recalling that it had already held in another case , in DATE , that it was not misconceived to conclude that there was a danger of foreign domination in GPE , ORG stated that it saw no reason to change its opinion in the instant case . As regards the facts noted by ORG , they had not been the subject of any dispute during the administrative proceedings .","ORG sat in camera and gave judgment without holding a hearing .","ORG Even before the above - mentioned judgment had been delivered , the plot in question was sold to an NORP who , according to the Government , turned it back into grazing - land . ORG had taken the view that it could examine the new contract , provided that its decision was held in abeyance pending the outcome of ORG proceedings .","ORG The Government stated that during DATE or so ORG had not approved any acquisition of real property in GPE by a foreigner . They supplied a list of CARDINAL refusals in the period DATE and DATE ; according to the applicant , the list was insufficiently detailed to be conclusive .","ORG Under LAW , as interpreted by ORG , the regulation of real property transactions is a matter coming within the jurisdiction of the L\u00e4nder . Most of the ORG have enacted legislation whereby all contracts relating to agricultural or forestry land and also , in some cases , real property transactions with foreigners have to be approved by special authorities .","ORG In the LOC ( see paragraph CARDINAL above ) , section CARDINAL ) of the CARDINAL\/CARDINAL LAW obliges the purchaser to seek such approval within DATE of the conclusion of the contract . No entry can be made in the land register until the transaction has been approved by the competent authority ( section CARDINAL(CARDINAL ) ) . If approval is withheld , the acquisition is null and void ( section DATE ) ) .","ORG When the contract relates to agricultural or forestry land and irrespective of the purchaser \u2019s nationality , the first - instance authority is the H\u00f6fekommission ( \" Farm Commission \" ) ( section CARDINAL(CARDINAL)(a ) ) . ORG is established at the seat of ORG and has CARDINAL members : the head of ORG , or a legally qualified ( rechtskundig ) official of that ORG appointed by him , as chairman ; a person designated by the chamber of agriculture of the district ; and another person , designated by the municipality in question , who is engaged in agriculture or forestry ( section CARDINAL of LOC of DATE ; PERSON betreffend die besonderen Rechtsverh\u00e4ltnisse geschlossener PERSON ) .","The decisions of ORG are taken by majority vote ( section CARDINAL ) of the CARDINAL\/CARDINAL Act ) ; they are subject to appeal to ORG ( see paragraph CARDINAL below ) by , amongst others , the parties to the contract or ORG ( section CARDINAL(CARDINAL ) ) .","ORG The Transactions Officer , who is appointed for DATE by ORG of the Tyrol , must be a person who is experienced in real property transaction matters ( section CARDINAL ) .","His secretariat is provided by a division of ORG .","ORG If the case is referred to it , ORG established at ORG takes a decision as the second and final instance ( section CARDINAL(CARDINAL ) ) . Its membership varies according to the subject - matter of the contract to be examined . In the case of agricultural or forestry land - whether the buyer be NORP or foreign - its voting members are ( section NORP ) , no . CARDINAL ) :","\" ( a ) a person experienced in real property transaction matters , who shall act as chairman ;","( b ) a member of the judiciary ( ORG ) ;","( c ) a legally qualified civil servant from ORG , with training in real property transaction matters , who shall act as rapporteur ;","( d ) a senior civil servant from ORG ( technischer LOC ) of ORG ;","( e ) a senior civil servant from ORG ( forsttechnischer ORG ) ;","( f ) an agricultural expert ;","( g ) a lawyer ( PERSON or Notar ) . \"","ORG The above - cited provision , which was introduced by LAW of DATE ( see paragraph CARDINAL above ) , replaced a text which ORG had held to be incompatible with LAW , as interpreted by ORG in its PERSON judgment of DATE ( Series A no . CARDINAL ) . ORG had ruled that ORG , as it was constituted under LAW of DATE , could not be considered an \" independent and impartial \" tribunal because its members included , as chairman , CARDINAL of the members of ORG of the LOC ( section CARDINAL ) , no . CARDINAL ) , former version ) . Furthermore , so ORG held , the LAW did not fix the duration of the PERSON term of office , conferred on the said Government the power of appointing the members ( save for a judge , who was appointed by the Federal Minister of ORG ) and did not lay down the circumstances in which members might be removed from office ( judgment of DATE , ORG , DATE , vol . CARDINAL , no . CARDINAL ) .","ORG Following this judgment , the NORP legislature amended , by LAW of DATE , the provisions in LAW concerning , inter alia , exercise of the office of member of ORG . ORG - sections CARDINAL of that section read as follows :","\" ( CARDINAL ) The member of ORG appointed from the judiciary ( sub - section CARDINAL , no . CARDINAL ( b ) ) , shall be appointed by the Federal Minister of ORG and the remaining members , by ORG . For each member a substitute member shall be similarly appointed .","( CARDINAL ) Only NORP citizens who have reached DATE and are in full possession of their legal rights shall be eligible for appointment as members or substitute members . Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible .","( CARDINAL ) Members and substitute members shall hold office for DATE . Members or substitute members who are appointed within the general DATE term of office shall cease to hold office at the end of that term . Re - appointment is possible . Members and substitute members shall continue to perform their duties after expiry of their term of office until they have been replaced .","( CARDINAL) The quorum of ORG shall be constituted if the chairman , the member appointed from the judiciary , the rapporteur and CARDINAL other members are present . Decisions shall be taken by majority vote . If the votes are equally divided , the chairman shall have a casting vote . Abstention shall count as a negative vote .","( CARDINAL ) In the performance of their duties the members of ORG shall not be subject to any instructions ; the executive may neither annul nor vary their decisions .","( CARDINAL ) The details of ORG ( such as the convening of sittings , summoning of substitute members , conduct of voting , keeping of TIME and signing of decisions ) shall be laid down by ORG in rules of procedure ( Gesch\u00e4ftsordnung ) for the said Authorities .","( CARDINAL ) Unless they are civil servants , members of ORG shall receive for their work remuneration and a travel allowance , the amount of which shall be laid down in regulations made by ORG .","( CARDINAL ) A member or substitute member shall be removed from office , before the end of his term of office , if :","( a ) circumstances intervene which would have made him ineligible for appointment ;","( b ) the regular performance of his duties becomes perCARDINAL","manently impossible .","( CARDINAL ) If an official of a \" territorial \" authority ( ORG ) is suspended from duty under the regulations governing his employment , he shall cease to exercise his functions as a member or substitute member of ORG for the duration of the suspension . \"","Sub - section ( CARDINAL ) , cited above , corresponds to LAW para . CARDINAL of the LAW , which reads :","\" If a Federal or a LAW makes provision for the last - instance decision to be given by a collegiate body CARDINAL of whose members is a judge and whose decisions can not be annulled or varied by the executive , the other members of that body shall also not be subject to any instructions . \"","Article CARDINAL para . CARDINAL of LAW obliges the members of ORG not to disclose facts which have come to their knowledge in the exercise of their functions , if the interests of a \" territorial \" authority or of the parties so require ( PERSON ) .","ORG Procedure before ORG is governed by LAW DATE ( ORG ) .","The parties are entitled to consult the case - file ( section CARDINAL ) and must be given an opportunity of presenting their arguments ( section CARDINAL ) . The competent authority may decide to hold a hearing ( section CARDINAL ) ) , which will not take place in public ; the parties have the right to be heard ( rechtliches PERSON ) and , inter alia , to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing , witnesses or experts ( section PERSON ) ) .","In certain circumstances which may give reason to doubt his impartiality , the civil servant concerned must arrange to be replaced ( section CARDINAL ) .","ORG By an order ( Verordnung ) of CARDINAL DATE , ORG of the ORG issued rules of procedure for ORG .","Under LAW para . CARDINAL , the Authorities shall deliberate and vote in the absence of the parties , if appropriate after oral hearings . The deliberations shall be recorded in TIME to which the right to consult the case - file ( PERSON ) , guaranteed by LAW , does not extend ( LAW para . CARDINAL ) . The Authorities\u2019 resolutions ( Beschl\u00fcsse ) must be recorded , but may be altered as long as they remain unpublished ( nicht nach aussen in Erscheinung getreten ) ( Article CARDINAL para . CARDINAL ) . Their decisions ( PERSON ) , which are to be reached on the basis of those resolutions ( LAW para . CARDINAL ) , shall be given in writing but may in case of urgency be given orally by the chairman ( DATE . CARDINAL ) .","Before ORG , the rapporteur shall , after setting out and commenting on the results of the investigation ( ORG ) , present conclusions ( Antrag ) ; those who wish to propose alternative conclusions ( Gegen- oder Ab\u00e4nderungsantr\u00e4ge ) shall give reasons for them ( Article CARDINAL para . CARDINAL ) . The chairman shall decide the order in which voting on the conclusions is to take place ( Article CARDINAL para . CARDINAL ) .","ORG Decisions of ORG may be challenged before ORG but not before ORG ( ORG ; ORG CARDINAL para . CARDINAL and CARDINAL of LAW ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103084","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF KARPACHEVA AND KARPACHEV v. RUSSIA","importance":4,"conclusion":"Violation of P4-2","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants , mother and son , were born in DATE and DATE respectively . The first applicant lives in PERSON , a closed town in LOC where the Mayak nuclear fuel reprocessing plant is located and where the second applicant permanently resided before his conviction in DATE . They are joint owners of a flat in PERSON . The second applicant is currently serving a prison sentence in a correctional colony in LOC .","On DATE the second applicant was found guilty at ORG of certain criminal offences and sentenced to DATE imprisonment .","On DATE the ORG , GPE , relieved him from further serving his sentence . The second applicant returned to PERSON .","The first applicant requested the local administration to authorise the second applicant 's entry to , and permanent residence in , PERSON . It appears the authorities permitted the second applicant 's temporary stay in GPE from DATE to QUANTITY DATE .","On an unspecified date ORG \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u043e\u043a\u0440\u0443\u0433\u0430 , \u201c the LAW \u201d ) and ORG of ORG ( ORG \u0444\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u0439 \u0441\u043b\u0443\u0436\u0431\u044b \u0431\u0435\u0437\u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438 \u043f\u043e PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u0438 , \u201c the Regional Security Service \u201d ) dismissed the request , referring to the second applicant 's conviction . The second applicant challenged the refusal in court .","On DATE ORG , GPE , granted the second applicant 's claim . According to the court 's findings , the dismissal by the competent authorities of the second applicant 's request for the entry to , and permanent residence in , PERSON did not have a basis in law . ORG ordered ( CARDINAL ) ORG to issue the second applicant with an entry and residence permit and ( CARDINAL ) ORG to approve it .","The parties did not appeal against the judgment of DATE and on DATE it came into force . ORG issued CARDINAL writs of execution .","On DATE the Head of ORG approved the second applicant 's application to be permanently registered in PERSON . Despite this , on DATE the bailiff opened enforcement proceedings in respect of ORG .","On DATE the administration of the Mayak nuclear fuel reprocessing plant informed the first applicant as follows :","\u201c Pursuant to Decree of the Government of the Russian Federation no . CARDINAL as of DATE on special regulations in a closed administrative and territorial entity where enterprises affiliated with ORG are located , on DATE the federal security service authorised the temporary residence of [ the second applicant ] in ... PERSON .","As regards your application for permanent residence [ for the second applicant ] in [ Ozersk ] , on DATE the [ Mayak administration ] forwarded the [ relevant ] documents ... to the [ ORG ] . The time - limit for their response shall not exceed DATE . Should the federal security service approve permanent residence [ for the second applicant ] , the [ Mayak administration ] will prepare the necessary documents for his registration at his place of residence and issuance of a permanent pass . \u201d","On DATE the bailiff opened enforcement proceedings in respect of ORG .","According to the Government , on DATE the bailiff closed the enforcement proceedings in respect of ORG , noting that the latter had complied with the judgment of DATE . According to the applicants , the bailiff 's decision was not communicated to them .","On DATE the management of the ORG nuclear fuel reprocessing plant informed the second applicant that ORG had refused to approve him for permanent residence in PERSON .","According to the Government , on DATE the bailiff closed the enforcement proceedings in respect of ORG , noting that the judgment of DATE had been enforced in full . The Government did not , however , submit any documents in support of this allegation . According to the applicants , they were not informed of the alleged closing of the enforcement proceedings .","On DATE the second applicant was arrested on suspicion of drug dealing . On DATE the ORG found him guilty as charged and sentenced him to DATE imprisonment . The second applicant 's conviction was upheld in substance by the Presidium of ORG by way of supervisory review .","The PERSON of GPE of DATE ( Article CARDINAL ) , as amended , provides as follows :","\u201c A closed administrative and territorial entity is a municipality where industrial enterprises specialising in development , production , storage and disposal of mass destruction weapons , processing of radioactive and other materials , military and other facilities ... are located . [ Such entities ] are subject to special regulations on secured operation and protection of state secrets , including special residence conditions . \u201d","Decree of the Government of GPE no . CARDINAL as of DATE on special regulations in a closed administrative and territorial entity where enterprises affiliated with ORG are located stipulates that entry to , and permanent residence in , a closed administrative and territorial entity is subject to restrictions ( \u00a7 CARDINAL ) . The head of the administration may , subject to the approval of the federal security service , authorise entry to the closed entity ( \u00a7 CARDINAL ) . Title to real property located in a closed administrative and territorial entity may give rise to a right to enter and reside there , subject to authorisation of access to state secrets ( \u00a7 CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84438","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2008,"docname":"CASE OF DODOV v. BULGARIA","importance":2,"conclusion":"Violation of Art. 2;No violation of Art. 2;Violation of Art. 6-1;Non-pecuniary damage - award","judges":"Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant 's mother , PERSON , DATE and suffering from ORG 's disease , was admitted to the GPE nursing home for elderly persons . The home was located on a busy boulevard in GPE , a neighbourhood of GPE . PERSON was placed in the hospital unit , which was staffed with several medical doctors and nurses . According to a medical opinion on PERSON health at that time , her memory and other mental capacities progressively deteriorated . She needed constant supervision and the nursing home staff had been instructed not to leave her unattended . In DATE , the applicant visited his mother regularly and on occasion accompanied her for medical visits outside the nursing home .","During his visit on DATE , the applicant noticed spots on his mother 's skin and reported it to the nurse on duty .","The applicant visited again on DATE , at TIME , but was informed that his mother was missing . DATE his mother had been sent to consult a dermatologist outside the home , accompanied by PERSON , a medical orderly . According to the explanation given to the applicant , upon their return , at TIME , the medical orderly had left PERSON alone in the yard and had not found her there TIME . The nursing home staff had looked for PERSON in the area but in vain .","The staff alerted the police TIME after the incident . On DATE , and again on DATE , the police heard several witnesses to the events and recorded their statements . Some of them explained that they had searched the area immediately upon learning of PERSON disappearance .","On DATE , PERSON was recorded as a person sought by the police in the region of PERSON and on DATE her data were entered in the national list of missing persons . On DATE the GPE police issued a press release containing information about Mrs GPE 's physical appearance and an appeal to the public to report any relevant information . It appears that the description of GPE appearance contained errors . On DATE the area in the proximity of the nursing home was searched unsuccessfully using a police dog . The police also checked the identity of patients admitted to psychiatric clinics during the relevant period . They also verified information according to which , in DATE , a woman resembling the applicant 's mother had spent TIME in a monastery . In DATE an announcement was broadcast on national television .","In DATE following his mother 's disappearance the applicant himself did what he could to find her . He contacted all those who had last been in contact with her , published calls for witnesses in several newspapers and posted announcements carrying his mother 's photograph .","NORP The applicant 's mother has not been found to date . In DATE a ORG issued a decision declaring PERSON missing and appointed the applicant as her representative .","On DATE the applicant filed a complaint with ORG alleging that the administrative and medical staff of the nursing home had been responsible for his mother 's disappearance .","Nothing was done in the case until DATE , despite the applicant 's numerous complaints to all levels of the prosecuting authorities .","NORP In DATE ORG opened a preliminary investigation into the matter .","The applicant participated actively in the ensuing proceedings . He made specific requests for the collection of evidence in respect of the events of CARDINAL DATE and the alleged negligence on the part of the nursing home staff . In other submissions , often voluminous , he exposed at length his suspicion that his mother might have been abducted by a criminal gang trading in human organs .","On DATE , after having heard doctor PERSON , the head of the medical staff at the nursing home , the investigator recommended that the investigation be discontinued . On DATE the prosecutor followed this recommendation . The investigator and the prosecutor noted that it had not been uncommon in the practice of the nursing home for residents suffering from Alzheimer 's decease to be sent for outside examinations by public transport , accompanied by a medical orderly . Also , it had been the normal practice to leave residents in the yard for TIME , the time necessary to report to the doctor on duty , and then to accompany them to their rooms . The yard had been enclosed by a fence and staff had usually been present in the area . There had been a gatekeeper whose duty had been to check the identity of those entering . Having noted those facts , the investigator and the prosecutor stated that no criminal offence had been committed .","The applicant was not informed of the above decision . He became aware of it on DATE , when he visited ORG to inquire about the examination of his complaint .","On DATE the applicant appealed , insisting that other witnesses be examined , such as the medical orderly who had accompanied his mother , the medical doctor who had sent his mother for an examination and the gatekeeper .","On DATE ORG quashed the lower prosecutor 's decision and referred the case back for renewed investigation . In DATE and DATE the file was transmitted to an investigator . The investigator heard the medical orderly and the gatekeeper .","On DATE the prosecutor terminated the proceedings . He noted that PERSON , the medical orderly , had left the applicant 's mother in the yard for TIME as she had been asked to see a senior medical staff member . At that moment the applicant 's mother had left and could not be found . The gatekeeper had stated that she had not seen PERSON . The prosecutor further noted that , in accordance with the relevant job descriptions , it was the medical orderlies ' duty to accompany residents and that the gatekeeper 's duties did not include responsibility for the residents ' safety . On that basis the prosecutor concluded that \u201c there [ was ] no indication that a staff member had exposed PERSON [ to a danger ] ... ; and , as regards the [ possible perpetrator 's ] mens rea , no wilful conduct could be proven . \u201d","The applicant appealed .","On an unspecified date the prosecutor 's decision of DATE was quashed and the case remitted for renewed investigation . In the ensuing investigation it was established that the gatekeeper had not been at the gate when the applicant 's mother had been left alone there on DATE , as the she had left to have tea .","On DATE ORG terminated the proceedings . The decision stated , inter alia :","\u201c PERSON had left [ the applicant 's mother ] alone in the yard , in dereliction of her duty to accompany and assist the seriously ill [ residents ] . However , her act did not constitute a criminal offence under LAW . That provision makes punishable the failure to assist a person in a helpless state , in circumstances of a real danger for that person 's life , if the perpetrator is aware of the danger but fails to act . PERSON stated that she had not thought that leaving [ the applicant 's mother alone ] in the yard might result in a danger for her life , as the yard was closed by a fence and a gatekeeper was usually present . The gatekeeper had committed a serious dereliction of her duties as she had left the gate to have a tea . However , the gatekeeper is not criminally liable as she had not understood that [ the applicant 's mother ] was in danger . PERSON and the gatekeeper have undoubtedly committed disciplinary offences , which should have led to disciplinary sanctions but their behaviour is not criminally punishable . \u201d","NORP The applicant was not informed of the prosecutor 's decision . Having learned about it , on DATE he appealed to ORG .","On DATE the ORG quashed the prosecutor 's decision and referred the case for renewed investigation , considering that there were inconsistencies in the prosecutor 's reasoning and that not all relevant evidence had been collected .","After having heard additional witnesses , on DATE ORG terminated the investigation . The prosecutor noted the following facts that had not been mentioned in earlier decisions : i ) it had not been uncommon for elderly residents of the nursing home to scale the fence around the house ; ii ) there was a second entrance to the yard , used for service cars , which had usually been kept closed by means of a metal bar placed on the inner side of the portal ; and iii ) order in the nursing home and the duties of its staff were not clearly regulated .","The prosecutor stated that in view of the absence of clear rules on the duties of staff in the nursing home it was not possible to draw conclusions as to the criminal liability of staff members . Also , the facts did not disclose a criminal offence under LAW .","The prosecutor also stated that in any event the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired .","On an appeal by the applicant , on DATE the ORG upheld the prosecutor 's decision of DATE as the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired on DATE .","In DATE , the applicant complained to the prosecution authorities alleging that the police had not taken the necessary steps to search for his mother following her disappearance . The prosecuting authorities examined the matter and , by decisions of DATE and DATE , refused to open criminal proceedings , considering that the police had acted diligently .","On DATE the applicant brought before ORG a civil action for non - pecuniary damages resulting from his mother 's disappearance . He claimed damages from ORG and the GPE municipality ( the institutions responsible for the nursing home ) on the grounds that the employees of the nursing home had been negligent . He also sought damages from ORG on the grounds that insufficient efforts had been made to find his mother . The applicant indicated ORG as the legal grounds for his action .","NORP Throughout the proceedings before ORG the applicant made voluminous written submissions and numerous requests for the collection of evidence .","At the first hearing , on DATE , the court could not proceed with the examination of the case as one of the defendants had not been summoned . The court ordered the applicant to indicate the full addresses of ORG and of the GPE municipality and stated that failure to comply could lead to discontinuation of the proceedings .","Hearings were held on DATE and DATE . ORG admitted several documents in evidence and refused to admit other documents . The applicant 's request for several witnesses to be examined was refused as it had been unclear and related to facts whose establishment required documentary proof .","On DATE the representative of GPE , which managed the nursing home , stated that the case did not fall to be examined under LAW . The representative of ORG , one of the defendants , stated that the applicant 's allegations in reality concerned not the ORG as a whole but CARDINAL of its regional units , ORG . The court decided to adjourn the hearing and instructed the applicant to submit proof of the locus standi of ORG .","On an unspecified date the applicant requested that ORG be added to the action as a further defendant . The request was granted at the next hearing , on DATE , and the case was adjourned . The court instructed the applicant to submit another copy of the evidence already admitted to the file , to be transmitted to the new defendant .","At the hearing on DATE the representative of ORG stated that the case did not fall to be examined under LAW as it did not concern the administrative powers of the police . The applicant sought to involve the nursing home as defendant . The court instructed the applicant to prove that the nursing home had a legal personality separate from that of GPE and adjourned the hearing . The court eventually found that the nursing home did not have separate legal personality .","The hearing held on DATE was adjourned as the court issued a disclosure order against the GPE police in respect of specific documents . The court rejected the applicant 's request to summon witnesses , including the medical doctor on duty on the relevant day . The applicant had stated that the witnesses would testify about the daily regime in the nursing home , the identity of staff members responsible for accompanying the applicant 's mother , her state of health on the relevant day and the exact sequence of events following her consultation with a dermatologist . The court held that such facts could only be established on the basis of documentary evidence .","On DATE the hearing could not proceed owing to a defective summons .","The hearing listed for CARDINAL DATE was adjourned owing to the prosecutor 's absence .","On DATE the court accepted some of the applicant 's requests for the examination of witnesses and adjourned the hearing .","The next hearing was held on DATE . It was adjourned as the nursing home had not complied with a disclosure order in respect of specific documents . CARDINAL of the summoned witnesses appeared but was not invited to testify .","The hearing listed for DATE could not proceed as CARDINAL of the defendants and a witness had not been summoned . The court fixed the next hearing for DATE .","On DATE the court heard CARDINAL witnesses , who were employees of the nursing home .","The employee responsible for the relevant unit stated that the staff had been aware of the applicant 's mother 's illness and her complete lack of orientation . She had been on a \u201c closed regime \u201d . All staff had been aware that she had to be accompanied .","PERSON , the medical orderly who had accompanied the applicant 's mother , testified that she had left her for TIME at the gate , next to the gatekeeper 's booth . The gate had not been locked . However , the gatekeeper had been there at that time . PERSON further stated that she had told the gatekeeper to look after the applicant 's mother and that the gatekeeper 's statement that she had not seen the applicant 's mother had been untrue .","The next hearing was on DATE . The court heard CARDINAL witnesses and adjourned the examination of the case . CARDINAL of the witnesses , the gatekeeper at the nursing home , did not appear . Eventually , the court decided to examine the case on the basis of the available material . The last hearing was held on DATE .","On DATE the ORG delivered its judgment . It found that the applicant had no standing to bring an action under ORG since his mother had not been declared dead and , therefore , the applicant could not claim that he was her heir .","The court also stated that it was unclear whether ORG applied as it only concerned damage resulting from unlawful administrative decisions or unlawful acts of the administration .","On DATE the applicant appealed . He stated , inter alia , that it was for the courts to decide on the legal characterisation of his claim . Therefore , if the court considered that the claim fell to be examined under general tort law , it should examine it under general tort law . The applicant also reiterated that he was personally affected as he had suffered non - pecuniary damage as a result of his mother 's disappearance .","By decisions of CARDINAL and DATE , ORG , criticising ORG failure to collect relevant evidence , ordered the summonsing of witnesses and the production of other evidence in the appellate proceedings .","On DATE ORG ordered the examination of a witness , the gatekeeper .","On DATE the court heard the former gatekeeper , who had fallen ill , in her home , in the presence of the parties ' representatives and a prosecutor . The former gatekeeper stated that on the relevant date she had not seen the applicant 's mother .","DATE . On DATE the ORG delivered its judgment . It found that ORG only concerned damages resulting from administrative decisions or acts in the exercise of administrative functions . The applicant 's claim did not concern such decisions or acts and fell to be examined under the general provisions of tort law . For that reason , ORG annulled ORG judgment and remanded the case for renewed examination by ORG .","On DATE the applicant filed a cassation appeal . On DATE ORG rejected the appeal . It found that ORG had been wrong to examine the case under LAW .","On an unspecified date the case was transmitted to ORG for fresh examination under general tort law .","On DATE ORG instructed the applicant to clarify his claims .","On DATE the court found the clarifications made insufficient and gave him additional instructions .","On DATE ORG held a hearing . It issued disclosure orders against the nursing home and ORG and allowed the collection of other evidence . The hearing was adjourned until DATE . The proceedings are pending .","At the relevant time , the activities of nursing homes for the elderly and other social care homes were governed by regulations issued by ORG ( State Gazette no . CARDINAL of DATE , amended by ORG no . CARDINAL of DATE ) , in force until DATE , when new regulations replaced them .","In accordance with the regulations , nursing homes were funded and managed by the local municipal councils and were required to follow the standards established and instructions given by ORG . It appears , however , that in DATE nursing homes were placed under the management of ORG . That was not reflected in the regulations .","The regulations set out the duties of the main staff categories \u2013 the director , medical doctors , nurses and administrative staff . On that basis , each nursing home adopted its own internal rules . The nursing home where the applicant 's mother lived also had internal rules regulating in detail the organisation and distribution of tasks and duties among staff . In addition , the specific duties attached to each position were set out in job descriptions . For example , according to the job description for a gatekeeper , CARDINAL of the main duties was control over the entry and exit of persons and vehicles . The nursing home also maintained a presence \/ absence table and DATE instructions book .","Article CARDINAL of the Criminal Code makes it a punishable offence to place a person in a situation endangering his life and , being aware of the situation , to fail to render assistance , despite the fact that the person concerned is unable to take care of himself owing to young or old age , illness , or any other state of helplessness .","There is no reported case - law under that provision .","ORG provides , in its section CARDINAL , that the ORG shall be liable for damage occasioned by ORG bodies or ORG officials in the exercise of their administrative functions . For damage caused in other circumstances , the ORG and ORG bodies are liable under general tort law .","According to the established practice in civil proceedings , the courts examine and determine the legal characterisation of claims submitted to them , without regard to the legal characterisation proposed by the plaintiff . The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law . Even if the plaintiff indicates a legal characterisation of the claim , the courts are not bound thereby . They must make their own independent assessment ( see , among many other authorities , the following judgments : CARDINAL - CARDINAL-V ( Supreme Court of Cassation ) , CARDINAL - CARDINAL-VII ( Supreme Administrative Court ) and CARDINAL - CARDINAL- ORG ( ORG ) ) .","According to section CARDINAL , unlike civil proceedings under general tort law , proceedings under LAW are conducted in the presence of a prosecutor and court fees are only payable following the entry into force of the final judgment .","In DATE , ORG issued an interpretative decision on certain aspects of the implementation of the LAW , noting the existence of disputes and divergent practice . CARDINAL of the issues dealt with was the identity of the ORG administrative bodies having locus standi to answer claims under LAW . ORG clarified that the action must be brought against the ORG body employing the relevant agent or , where that ORG body did not have separate legal personality , against the superior ORG organ meeting that condition .","By virtue of sections CARDINAL of ORG , the courts may declare missing a person whose whereabouts have been unknown for DATE . If the person is still missing after DATE , the courts may declare the person presumed dead ."],"violated_articles":["2","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["2"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60926","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2003,"docname":"CASE OF BUKOWSKI v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["On DATE the applicant sued for damages the GPE - ORG ( GPE PERSON ) , ORG ( ORG ) and CARDINAL of his neighbours , PERSON , ORG and GPE , in ORG ( S\u0105d Wojew\u00f3dzki ) . The applicant sought CARDINAL old Polish zlotys ( PLZ ) for the loss that he had allegedly sustained on account of various impediments to the construction of his house .","On DATE the applicant withdrew his claims against the first CARDINAL defendants . Since then , the proceedings have been directed only against his neighbours PERSON , ORG and GPE","DATE ORG listed CARDINAL hearings . It also ordered that CARDINAL reports from construction experts be obtained so as to assess the value of the financial loss sustained by the applicant .","The last of those reports was submitted to the court in DATE .","At the hearing held on DATE the court heard evidence from GPE , an expert .","Later , both parties contested GPE ' s report . The applicant nevertheless asked the court to give a ruling on his claim , stressing that the length of the proceedings had to date exceeded DATE .","On DATE the court ordered that fresh evidence be obtained from GPE","In DATE the presiding judge stepped down and the case was referred to another judge .","On DATE the applicant complained to the President of ORG ( S\u0105d Apelacyjny ) DATE in his words \u2013 \u201c an exceptional delay in the proceedings \u201d . In a letter of CARDINAL DATE the President admitted that the procrastination in the proceedings had indeed been caused by the fact that ORG had failed to keep the proceedings moving along procedural lines . He apologised to the applicant in the name of the administration of justice .","On DATE the applicant complained to the President of ORG ( S\u0105d Najwy\u017cszy ) about the inactivity of ORG . On DATE the President referred the complaint to the Minister of ORG , an authority responsible for monitoring the conduct of court proceedings . He observed , however , that despite the case having already been brought under the Minister 's supervision , since CARDINAL DATE no hearing had taken place before ORG .","Subsequently , the applicant made CARDINAL further similar complaints to the President of ORG .","In a letter of CARDINAL DATE the President again apologised to the applicant and admitted that the monitoring of the conduct of the proceedings had not been very successful . He also informed the applicant that the President of ORG had been instructed to take steps in order to accelerate the proceedings .","On DATE the court held a hearing and served copies of GPE 's fresh report on the parties . Since the inflation rate and purchasing power of the NORP currency had meanwhile changed substantially , the court ordered the applicant to state the exact amount of damages claimed in the light of current circumstances .","On DATE and CARDINAL DATE the applicant filed CARDINAL pleadings with the court and stated that the current total value of his claim was CARDINAL new Polish zlotys ( ORG ) .","On DATE the court held a hearing . It ordered the applicant to pay court fees of ORG CARDINAL,CARDINAL for having lodged , in the court 's view , a new and higher claim , and on pain of the statement of claim being returned to him .","On DATE , on an appeal by the applicant , ORG quashed the contested order as being premature . It found that the lower court had misconstrued the applicant 's pleading and ordered it to obtain from the applicant a clear statement of the amount currently claimed .","Meanwhile , on DATE , the applicant had complained to the court about the lack of progress in the litigation . He stressed that as of that date the length of the proceedings was DATE , but his claim was still far from being determined . He repeated that he had not increased , and was not going to increase , the value of the claim .","At the hearing which was held on CARDINAL DATE the court ordered GPE to prepare yet another report and to determine the current value of various items included in his report of CARDINAL DATE . That order was a consequence of the fact that , since DATE , the inflation rate and the purchasing power of the NORP currency had again changed considerably .","On DATE the court held the next hearing .","On DATE , the applicant lodged a complaint with ORG , submitting that the length of the proceedings in his case had exceeded all reasonable limits . On DATE the Case - law Department of ORG informed him that he should address his complaints to the Minister of ORG , who was responsible for monitoring the conduct of the proceedings .","On DATE ORG ordered that evidence from yet another construction expert be obtained .","On DATE PERSON , an expert , submitted his report to the court .","On DATE , DATE and DATE ORG held hearings .","On DATE the applicant submitted a pleading to the court , pointing out that PERSON had based his findings on inaccurate indexes of the value of the construction works and had , therefore , come to wrong and unfair conclusions on the assessment of his loss .","On DATE he submitted his comments on the value of certain construction works , as assessed by PERSON He further asked the court to proceed with his case and to give \u201c any ruling terminating the proceedings that have so far lasted DATE \u201d .","On DATE the applicant again asked the court to give a ruling .","The next hearing took place on DATE . The court heard evidence from PERSON and adjourned the proceedings to enable the expert to prepare a supplementary report .","At the hearing held on DATE , the court ordered PERSON to prepare yet another supplementary report .","Subsequent hearings were held on DATE and CARDINAL DATE . The court heard evidence from the expert and , on DATE , once again ordered the applicant to specify his claims .","On DATE the applicant informed the court in writing that he had already specified his claims on CARDINAL occasions .","On CARDINAL DATE the court held a hearing , but then adjourned the proceedings sine die .","The next hearings were listed for DATE and DATE and , subsequently , for DATE and DATE .","In the light of the material before the ORG , it appears that the proceedings are still pending in the court of first instance ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115417","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2012,"docname":"ZAHARIEVA v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Ineta Ziemele;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Ms Teodora Dimitrova Zaharieva , is a NORP national , who was born in DATE and lives in GPE . She was represented before the Court by Mr PERSON and PERSON , lawyers practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","In DATE the applicant was diagnosed with breast cancer and underwent surgical removal of her right breast . In DATE she also underwent chemotherapy .","NORP In DATE the applicant developed a tumour in her left breast , which was also removed , and underwent another course of chemotherapy .","NORP This medical treatment was provided to the applicant free of charge by the public health system .","In DATE the applicant was prescribed a course of hormonal therapy which required the administration , once DATE , of a medicine whose active component was goserelin .","At the relevant time goserelin was on the list of medicines provided by ORG free of charge . DATE and DATE the applicant received it regularly free of charge .","In DATE the applicant was informed that there was a problem with the supply of goserelin . Having received medical advice that interrupting the intake of the product for longer than a month could be dangerous for her health , the applicant had no choice but to purchase it from a pharmacy . She did so in DATE and DATE . The price of goserelin for each dose was MONEY ( ORG ) .","Being unable to keep on paying for goserelin DATE , in DATE the applicant , on the advice of her doctor , underwent an alternative treatment in the form of radiocastration , which resulted in the definitive cessation of her ovarian function .","After that the applicant was prescribed another medicine whose active substance was letrozole , to be taken DATE for twentyfour DATE . Letrozole was also on the list of medicines provided free of charge by ORG . However , the applicant did not receive the medicine free of charge and had to pay for it . Being unable to afford to pay for a full course of treatment with letrozole \u2013 the cost of CARDINAL package containing forty pills was BGN DATE , the applicant took it irregularly and in smaller doses than prescribed .","In DATE metastases in the applicant \u2019s liver were discovered , and she underwent a third course of chemotherapy .","NORP In DATE the applicant was not provided free of charge with docetaxel , another expensive medicine , although it was necessary for the chemotherapy and also featured on the list of medicines provided by ORG free of charge .","The applicant repeatedly protested , in letters and complaints addressed to ORG and other institutions , about the recurring problems with the supply of medicines for persons suffering from cancer .","It appears that in DATE the applicant continued to experience irregular supplies of free medicines .","On DATE the applicant brought a claim for damages against ORG . She sought ORG CARDINAL,CARDINAL that she had paid for the medicines that should have been provided to her free of charge and ORG CARDINAL in respect of the non - pecuniary damage resulting from the worsening of her health due to the ORG \u2019s failure to provide those medicines . The statement of claim did not clarify the legal provision on which the claim was based .","DATE ORG returned the statement of claim to the applicant CARDINAL times , pointing to various deficiencies in it . In particular , the applicant was requested to describe the specific actions and omissions which had given rise to the alleged damage and to provide more particulars about the damage that she had suffered .","The first hearing was held on DATE . The court dealt with a number of evidential requests by the parties , allowed an increase of the applicant \u2019s claim in respect of nonpecuniary damage , and gave leave to the applicant to specify her claim in respect of pecuniary damage . It also ordered a medical expert report requested by counsel for the applicant , and adjourned the case until DATE .","On DATE the applicant specified that she was claiming ORG CARDINAL in respect of pecuniary damage and BGN CARDINAL in respect of nonpecuniary damage . She also asked the court to bring forward the date of its next hearing .","On DATE counsel for the ORG requested the court to put additional questions to the expert .","On DATE the court admitted the increase of the applicant \u2019s claims , but said that in view of its case load and the amount of evidence that needed to be gathered the date of the next hearing could not be brought forward .","NORP The expert filed her report on DATE .","At the hearing on DATE the court admitted the report and heard the expert . It went on to admit a number of documents presented by the parties and to hear CARDINAL witness called by the applicant . The case was adjourned until DATE .","On DATE the applicant made written submissions clarifying that her claim was based on section CARDINAL of ORG DATE ( \u201c the DATE LAW see paragraph DATE below ) .","At the hearing on DATE the parties made submissions on the evidence . The court also dealt with the applicant \u2019s submissions of DATE and instructed her to provide further clarifications .","Having received the applicant \u2019s clarifications , on DATE the court , sitting in private , noted that the applicant had based her claim on LAW and that therefore its examination had to start afresh because the procedure applicable to claims under LAW , unlike the one applicable to claims under the general law of tort , required the participation of a public prosecutor .","At the next hearing , held on DATE , the examination of the case started afresh . The court took note of the applicant \u2019s earlier submissions concerning the quantum of her claims , instructed the applicant to provide duly certified copies of certain documents that she wanted to adduce , and ordered a medical expert report . It also heard a witness called by the applicant , and adjourned the case until DATE to allow further evidence to be gathered .","The expert report was ready on DATE .","The last hearing took place on DATE .","The Sofia City Court gave its judgment on DATE . It awarded the applicant ORG CARDINAL,CARDINAL in respect of pecuniary damage ( the cost of the medicines that she had had to buy herself ) and LAW in respect of nonpecuniary damage . Applying section ORG ) of LAW , as worded at that time ( see paragraph CARDINAL below ) , the court ordered the applicant to pay BGN MONEY ( MONEY of ORG DATE the rejected part of her claim in respect of nonpecuniary damage ) in court fees .","Both parties appealed . The ORG requested CARDINAL additional expert reports .","On DATE ORG admitted certain documents enclosed by the parties with their appeals . It also partly acceded to the ORG \u2019s request and ordered an additional medical expert report . The report was filed on DATE .","The first hearing before ORG took place on DATE . The court admitted the medical expert report and heard the experts . Counsel for ORG contested parts of the report and requested a fresh report . The court did not accede to that request , but ordered the experts to recheck some of their conclusions in the light of the objections raised by counsel for ORG .","The experts filed their amended report on DATE . The court held a hearing on DATE , at which it admitted the amended report and reheard the experts . It also dealt with some other evidential requests and heard the parties\u2019 closing arguments .","The Sofia Court of Appeal gave its judgment on DATE . It increased the award of nonpecuniary damages to BGN CARDINAL , plus interest at the legal rate ( see paragraph CARDINAL below ) running from DATE , and upheld the remainder of the lower court \u2019s judgment . It noted that as a result of the increase of the quantum of the award , the applicant owed only ORG CARDINAL,CARDINAL ( MONEY of ORG DATE the rejected part of her claim in respect of nonpecuniary damage ) in court fees in respect of the firstinstance proceedings . However , the court did not order the applicant to pay any fees in respect of the appellate proceedings .","The Sofia City Court and ORG both concluded that ORG was liable for the cost of the medicines that the applicant had been forced to buy on the open market and for the nonpecuniary damage suffered by the applicant as a result of the breakdown in the supply of those medicines . The courts found that ORG had , in breach of its duties under the applicable statutes and regulations , failed to organise certain public procurement tenders in a timely manner and had , moreover , bought insufficient quantities of certain medicinal products , which had not covered the needs of all cancer patients in GPE . Also , the system of distribution of those products had not been organised efficiently . The courts found that those omissions had been in breach of section QUANTITY of LAW ( see paragraph CARDINAL below ) , and had resulted in interruptions in the applicant \u2019s treatment requiring recourse to radiocastration , which had had the effect of irreversibly terminating her ovarian function and had , moreover , exposed her to harmful radiation possibly causing tumours . The courts also found that as a result of the Ministry \u2019s omissions the applicant \u2019s chances of overcoming her illness had decreased , that she had suffered lasting feelings of pain and distress , and that she had been negatively affected for the rest of her life . The only difference between their conclusions was that in the view of ORG the extent of the nonpecuniary damage suffered by the applicant was greater .","Both parties appealed on points of law . ORG heard the appeals on DATE .","In a final judgment of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , V \u0433. \u043e. ) , ORG fully upheld ORG judgment . Relying on section CARDINAL(CARDINAL ) of LAW , as worded at that time ( see paragraph CARDINAL below ) , it ordered the applicant to pay BGN CARDINAL ( PERCENT of ORG CARDINAL ) in court fees in respect of the cassation proceedings . It did not award any costs to the applicant . The court fully agreed with ORG assessment of the failure of the responsible ORG officials to organise in time the procurement of the medicinal products required for treating the applicant . It also shared the court of appeal \u2019s assessment of the extent of the damage suffered by the applicant . It noted that the court of appeal had omitted to order the applicant to pay fees in respect of the appellate proceedings , but went on to say that this was not an error that could be rectified in cassation proceedings .","On DATE the applicant asked ORG to vary its ruling in relation to court fees in the cassation proceedings and to award her costs in respect of those proceedings . In an additional judgment of DATE ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , V \u0433. \u043e. ) , the court , noting that the newly added section CARDINAL ) of LAW ( see paragraph CARDINAL below ) had already taken effect when the applicant had made her request , decided to reduce the fee that the applicant had been ordered to pay in respect of the cassation proceedings from ORG CARDINAL,CARDINAL to ORG . The court turned down the applicant \u2019s request for the award of costs , noting that she had not been legally represented in the cassation proceedings and had not proved that she had incurred any costs .","In DATE the applicant gave a press interview in which she said , inter alia , that her health had improved .","Section CARDINAL of the Act originally called ORG Citizens Act DATE , renamed on DATE the ORG and ORG DATE ( \u201c the DATE LAW ) , provides that the ORG is liable for damage suffered by individuals ( and since DATE also legal persons ) as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties .","Section CARDINAL(CARDINAL ) of the LAW provides that those seeking redress for damage occasioned in circumstances falling within the scope of the LAW have no claim under the general law of tort . The courts have said that the LAW is a lex specialis and excludes the application of the general regime ( \u0440\u0435\u0448. \u2116 PERCENT \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , GPE \u0433. \u043e. ; \u0440\u0435\u0448. \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 ORG \u0433. , ORG , ORG , \u0406V\u0431 \u043e. ) . ORG has said ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0442. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , ORG , I \u0442. \u043e. ) that liability under LAW is a special case of vicarious liability under LAW of ORG DATE , which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . The NORP courts have on occasion examined damages claims against the authorities under section DATE ( see the domestic case cited in First Sofia Commodities EOOD and PERSON v. GPE ( dec . ) , no . CARDINAL , \u00a7 CARDINAL , DATE ) .","NORP The legal rate of interest is set by ORG ( section CARDINAL(CARDINAL ) of ORG DATE ) . In a decree of DATE ( \u041f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u0435 \u2116 DATE \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u0437\u0430 \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u044f\u043d\u0435 \u043d\u0430 \u0437\u0430\u043a\u043e\u043d\u043d\u0430\u0442\u0430 \u043b\u0438\u0445\u0432\u0430 \u043f\u043e \u043f\u0440\u043e\u0441\u0440\u043e\u0447\u0435\u043d\u0438 \u0437\u0430\u0434\u044a\u043b\u0436\u0435\u043d\u0438\u044f \u0432 \u043b\u0435\u0432\u043e\u0432\u0435 \u0438 \u0432\u044a\u0432 \u0432\u0430\u043b\u0443\u0442\u0430 ) ORG decided that the legal rate of interest for overdue debts in NORP levs would be the base interest rate fixed by ORG percentage points . The same position was maintained , with certain technical modifications , in a new decree that came into force on DATE and superseded the DATE one ( \u041f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u0437\u0430 \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u044f\u043d\u0435 \u0440\u0430\u0437\u043c\u0435\u0440\u0430 \u043d\u0430 \u0437\u0430\u043a\u043e\u043d\u043d\u0430\u0442\u0430 \u043b\u0438\u0445\u0432\u0430 \u043f\u043e \u043f\u0440\u043e\u0441\u0440\u043e\u0447\u0435\u043d\u0438 \u0437\u0430\u0434\u044a\u043b\u0436\u0435\u043d\u0438\u044f \u0432 \u043b\u0435\u0432\u043e\u0432\u0435 \u0438 \u0432\u044a\u0432 \u0432\u0430\u043b\u0443\u0442\u0430 ) .","The general rule in civil proceedings in GPE is that the court fee is payable by the claimant upfront , upon submission of the claim ( Article CARDINAL of the Code of Civil Procedure DATE , superseded on DATE by LAW DATE , and sections CARDINAL of LAW DATE ) . The fee in respect of money claims is MONEY of the amount claimed ( point CARDINAL of Tariff No . CARDINAL to LAW , superseded on DATE by CARDINAL of the LAW of fees collected by the courts LAW ) . If the claim succeeds fully or partly , the defendant is ordered to reimburse the claimant \u2019s costs , including court fees , in direct proportion to the successful part of the claim .","Under section ORG ) of LAW , as originally enacted , in proceedings under the LAW , no court fees or costs were payable by the claimant upfront , upon submission of the claim . However , if the claim was eventually wholly or partly dismissed , the court was to order the claimant to pay \u201c the court fees and costs due \u201d . The courts construed that provision as meaning that the claimant should pay fees calculated pro rata the dismissed part of the claim . As a result , where a court held that a claim for damages against the ORG was wellfounded but excessive as to quantum , it ordered the defendant ORG authority to pay damages to the claimant and at the same time ordered the claimant to pay court fees to the ORG budget . Where the claimant indicated too high an amount in the statement of claim , the fee could exceed the sum awarded in damages , the overall financial award being in favour of the ORG despite the finding that the claimant had suffered damage that called for compensation under the LAW ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG , \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG ) . There was no provision for judicial discretion and considerations of equity played no role in fixing the fees\u2019 amount ; those fees were fixed by reference to the sums indicated in the statement of claim , even if in the course of the proceedings the claimant withdrew part of the claim ( \u0442\u044a\u043b\u043a. \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e \u0442\u044a\u043b\u043a. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG , ORG , \u0442\u043e\u0447\u043a\u0430 CARDINAL ) .","Following this ORG \u2019s judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) , which found that the setup outlined above had , on the facts of the case , resulted in a breach of LAW ( see a summary of the ORG \u2019s findings in paragraph CARDINAL below ) , ORG laid before ORG a bill for the amendment of the CARDINAL Act . ORG enacted the bill on DATE and the amending LAW came into force on DATE . Section CARDINAL ) was changed and now deals solely with costs . Court fees are presently governed by a newly added section CARDINAL ) , which provides that the fee due in respect of cases under the LAW is flat and is to be fixed in a tariff adopted by the ORG . Under the LAW of fees collected by the courts under LAW , as currently in force , the fee is ORG in respect of firstinstance proceedings , ORG in respect of appellate proceedings , and ORG in respect of cassation proceedings . Unlike the previous arrangement , the fee is payable upfront ( \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , ORG ) .","Paragraph CARDINAL of the transitional and concluding provisions of the amending LAW provides that the new rule on court fees applies to proceedings which have not been concluded at the time when the new section CARDINALa(CARDINAL ) came into force , and that the fee is charged at the close of the proceedings in each instance .","In its caselaw under that paragraph , ORG in some cases held that the new rule on court fees applied not only in respect of fees charged by the cassation court after the rule had come into effect , but also in respect of fees charged by the lower courts before that , as long as the proceedings as a whole were pending at the time when the rule had come into effect ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0433. \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0433. \u043e. ) . In CARDINAL case the court went as far as to set aside a writ of execution issued in respect of a court fee charged before the new rule had come into force ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0447. \u0433\u0440. \u0434. \u2116 GPE \u0433. , ORG , PERSON \u0433. \u043e. ) .","However , in other cases ORG held that , since it referred to the close of the proceedings \u201c in each instance \u201d , the new rule could not serve as a basis for reducing the fees charged by the lower courts before it had come into effect ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0433. \u043e. , \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0433. \u043e. ) . In some cases the court held that the rule did not apply to the fees charged by the lower courts before it had come into effect because it did not have retrospective effect ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0440\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , ORG \u0433. \u043e. , \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , PERSON \u0433. \u043e. ) .","The text of the provision governing the \u201c complaint about delays \u201d \u2013 Article CARDINALa of the Code of Civil Procedure DATE has , along with the provisions of LAW DATE that superseded it in DATE , been set out in DATE of the ORG \u2019s judgment in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL , DATE ) .","Under LAW , which came into force on DATE , a person may bring proceedings to enjoin an administrative authority to carry out an action that it has the duty to carry out under a legal provision . If the court allows the claim , it enjoins the authority to carry out the action and fixes a timelimit .","In DATE a cancer patient who had , due to a breakdown of supplies , not been provided with iodineCARDINAL for postoperative radiotherapy free of charge , as required under the applicable regulations , brought proceedings under Article CARDINAL to enjoin the Minister of Health to make the product available to the hospital that was treating her .","On DATE ORG dismissed the claim . On an appeal by the patient , in a decision of DATE ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL\/CARDINAL , PERSON , ORG ) a threemember panel of ORG quashed the lower court \u2019s decision , holding that the claim fell within its competence and that it should not have been examined by the lower court .","On DATE a threemember panel of ORG dismissed the claim ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , ORG ) . On an appeal by the patient , in a judgment of CARDINAL DATE ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 ) a fivemember panel of ORG quashed the threemember panel \u2019s judgment and remitted the case .","In a judgment of DATE ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 ORG \u0433. , ORG ) the threemember panel to which the case had been remitted allowed the claim and enjoined the Minister to complete within DATE the relevant procurement procedures . Having reviewed in considerable detail the applicable constitutional and statutory provisions and regulations , and having examined the Minister \u2019s actions in relation to the procurement of the relevant anticancer products , it found that the patient was entitled to receive iodineCARDINAL for her medical treatment and that the Minister was under a legal duty \u2013 which he had failed to discharge DATE to provide it to the hospitals which were treating her . It also noted that , in as much as the claimant was seeking redress in respect of the damage that she had already suffered as a result of the Minister \u2019s omission , she could seek reparation by way of a claim under section CARDINAL of LAW ( see paragraph CARDINAL above ) .","On an appeal by the Minister , in a final judgment of CARDINAL DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 ) a fivemember panel of ORG upheld that judgment , fully agreeing with its reasoning .","Parallel to those proceedings , the patient also brought a claim for damages under section CARDINAL of the CARDINAL Act ( see paragraph CARDINAL above ) , and in a judgment of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , ORG , ORG \u043e. , CARDINAL \u0441\u044a\u0441\u0442\u0430\u0432 ) , ORG awarded her BGN CARDINAL in nonpecuniary damages . On an appeal by the Minister of Health , on CARDINAL DATE ORG upheld that judgment ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 ORG \u0433. , PERSON , ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110171","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2012,"docname":"CASE OF KAPERZYNSKI v. POLAND","importance":3,"conclusion":"Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in ORG .","At the material time the applicant was editor - in - chief of the local DATE newspaper \u201c I\u0142awski Tydzie\u0144 \u201d .","On DATE the newspaper published an article coauthored by the applicant , entitled \u201c Municipality in danger ; authorities fail to see problem \u201d . It described in detail the situation concerning the sewage system in the I\u0142awa municipality . The thrust of the article was that the sanitary situation in the municipality was a matter of concern and posed significant public health risks ; extensive investments were necessary to improve it ; there was a serious shortage of available funds ; the municipal authorities were dealing with the problems in a slow and incompetent manner ; it was more important for them to save money than to prevent serious health risks and to avert a danger to the population ; the quality of water was unsatisfactory ; and the mayor , despite the fact that he had been in office for CARDINAL terms , had failed to deal with the problems properly .","In a letter to the newspaper of the same date the mayor of ORG complained about the article . The first paragraph of that letter was couched in ironic terms . The mayor expressed doubts about the applicant \u2019s intentions and suggested that the applicant had been acting in his own personal interest . He maintained that the general tone of the article was inappropriate . He also voiced doubts as to whether the newspaper had any readers at all and whether it was therefore worth his while to react to the article .","He further requested , referring to section CARDINAL \u00a7 CARDINAL read together with section CARDINAL of LAW DATE , that the applicant publish a rectification ( see paragraph CARDINAL below ) . He stated that the development of the sewage network was a priority for the municipal authorities and listed a number of projects undertaken by the municipality during DATE . Further , CARDINAL projects planned for DATE were listed . The mayor stated that the quality of the water was monitored by the appropriate services and referred to several projects for modernising and overhauling the existing sewage and sanitary systems .","The applicant did not reply to this letter and did not publish it .","On an unspecified later date the municipality of ORG brought a private bill of indictment against the applicant before LOC for the offence of failure to publish a rectification or reply as prescribed by section QUANTITY of LAW ( see paragraph CARDINAL below ) .","NORP In his written pleadings of CARDINAL DATE the applicant argued that the mayor \u2019s letter could not reasonably be regarded as a request for rectification within the meaning of LAW CARDINAL of LAW , because its content lacked the essential characteristics of a \u201c rectification \u201d . It was not related to the facts and it was not couched in objective terms , as stipulated by that provision . In fact , its first part , in particular , was very critical of the applicant and contained innuendos about his character , motives and about the newspaper and its journalists . This alone made it impossible to regard the letter as a request for rectification . Furthermore , the style of the letter lacked the objectivity which could be expected of a rectification . It could therefore not be reasonably seen as such . It resembled rather a \u201c reply \u201d , within the meaning of the same provision of LAW , expressing the value judgments and views of its author vis - \u00e0 - vis the impugned article . Even assuming that the letter could be seen as a rectification , it did not comply with the relevant requirements laid down by LAW of LAW as it was more than twice the length of the contested article .","The applicant further submitted that the letter could not be seen as a rectification request because it breached his personal rights and the rights of other journalists working for the \u201c LOC \u201d , by calling into doubt their professionalism and personal integrity . The applicant referred to section CARDINAL of LAW , which obliged an editor - in - chief to refuse the publication of a rectification or a reply if its form or content were incompatible with the principles of co - existence with others ( \u201c zasady wsp\u00f3\u0142\u017cycia spo\u0142ecznego \u201d ) .","On DATE ORG found the applicant guilty of an offence punishable by section CARDINAL \u00a7 CARDINAL of LAW in conjunction with its section CARDINAL \u00a7 CARDINAL . The court sentenced the applicant to CARDINAL months\u2019 restriction of liberty in the form of CARDINAL ORG community service per DATE and suspended the sentence for DATE . It further deprived him of the right to exercise the profession of journalist for DATE and ordered that the judgment be made public by being displayed at ORG .","The court noted that the facts of the case , for the most part , were not disputed by the parties . It found that the applicant had not replied to the mayor \u2019s letter and had not published that letter or excerpts thereof , either as a rectification or reply . It noted that he was clearly obliged to do so under the provisions of LAW . He was aware of his obligation as he had previously published rectifications in the newspaper . No objective grounds existed which could be said to have legitimately prevented the applicant from complying with that obligation and , in any event , he had not invoked any such grounds . It was the applicant \u2019s own decision to refuse to publish the rectification requested . Similarly , he had failed to reply to the mayor , explaining to him the reasons for his refusal to publish . His failure corresponded to the offence specified in section CARDINAL of LAW read together with LAW .","The judgment further read :","\u201c The above assessment of the [ applicant \u2019s conduct ] is additionally supported by the fact that in the impugned article he had discussed a question of significant importance for the municipality of ORG , namely the condition of its sewage system , by saying that the mayor had failed to take effective steps in order to have the sewage system installed . Assuming that the accused took into consideration the significance of his article , he should have , as a diligent journalist and editor - in - chief , either published the rectification demanded by the municipality , which directly concerned the questions raised in the article and outlined the steps which the municipality had already taken , or informed the municipality of the grounds for his refusal to publish a rectification . \u201d","The court further held that the applicant \u2019s failure to publish the mayor \u2019s letter had been to the serious detriment of the I\u0142awa municipality as by making it impossible for a fair and public debate to develop it had undermined the confidence which a democratically elected municipal executive authority should enjoy .","The applicant appealed , essentially reiterating his arguments as submitted to the first - instance court .","On DATE ORG upheld the contested judgment .","Article CARDINAL of the LAW provides :","\u201c CARDINAL . Freedom to express opinions , and to acquire and disseminate information shall be ensured to everyone .","Preventive censorship of means of social communication and licensing of the press shall be prohibited . \u201d","LAW reads :","\u201c CARDINAL . Freedom of the person shall receive legal protection .","Everyone shall respect the freedoms and rights of others . No one shall be compelled to do that which is not required by law .","Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . \u201d","Article CARDINAL of the LAW , regarding the effects of judgments of ORG , provides , in so far as relevant :","\u201c CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .","Judgments of ORG , ... shall be published without delay .","A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such a time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...","A judgment of ORG on non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given , shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . \u201d","NORP The relevant provisions concerning the correction of information in the press and other media are contained in LAW ( Prawo prasowe ) of DATE .","Section CARDINAL provides , in so far as relevant , as follows :","\u201c At the request of a natural or legal person or other organisational entity , the editorin - chief of the relevant DATE or magazine is under an obligation to publish , free of charge :","a factually based ( rzeczowe i odnosz\u0105ce si\u0119 do fakt\u00f3w ) rectification of untrue or inaccurate statements ,","a factually based ( rzeczow\u0105 ) reply to any statement which might infringe someone \u2019s personal rights \u201d","Section CARDINAL provides , in so far as relevant , as follows :","\u201c ... Without the consent of the claimant , it is forbidden to shorten or make any other amendments to the correction or reply which would weaken its significance or alter the intentions of the author . The correction may not be commented upon in the same edition or broadcast ... \u201d","Section CARDINAL provides , in so far as relevant , as follows :","\u201c CARDINAL . The editor - in - chief is under an obligation to refuse publication of the rectification or reply if :","CARDINAL ) it does not fulfil the requirements laid down in DATE ( ... )","The editor - in - chief , when refusing to publish a rectification or reply , shall , without undue delay , send the claimant written notification of the refusal and the reasons for it . If the refusal is based on reasons referred to in subsection ( CARDINAL ) , the editorin - chief shall indicate those parts which can not be published ; the DATE time - limit for producing an amended correction or reply starts running again from DATE on which the refusal and its justification were delivered . The editor can not refuse to publish a rectification or reply which has been amended in accordance with his or her indications . \u201d","Section CARDINAL provides for the following penal provision :","\u201c Whosoever , in breach of the statutory obligation , refuses to publish a rectification or reply , as referred to in DATE , or who publishes such a rectification or reply contrary to the conditions laid down in this LAW , shall be subject to a fine or a restriction of liberty . \u201d","In a judgment of CARDINAL DATE ORG ( P CARDINAL ) examined the constitutionality of the prohibition on making editorial comments on a request for rectification in the same issue of a newspaper in which the rectification was published , which was at that time provided for by section CARDINAL \u00a7 CARDINAL of LAW DATE and backed up by a criminal sanction provided for by section CARDINAL \u00a7 CARDINAL of that Act .","In the light of section CARDINAL \u00a7 CARDINAL of LAW , the prohibition on publishing comments on requests for rectifications was not absolute , since it was permissible to include such comments in the next issue or broadcast . That prohibition was necessary to protect the freedom of expression of the person having submitted the request for rectification . The challenged provisions of LAW made it possible to maintain a balance of power between the media and persons submitting requests for rectifications to be published , with the latter generally having more limited opportunity to publicly express their views .","The court further noted that the practical application of section CARDINAL had given rise to serious difficulties in judicial practice ; LAW did not formulate any conditions concerning either the form or the substance that would allow for a clear categorisation of a given request submitted to an editor - in - chief as a \u201c rectification \u201d or a \u201c reply \u201d . Hence , editors could have DATE and in practice did have \u2013 serious problems in classifying such submissions . Since it was impossible to provide an unambiguous interpretation of the relevant criminal law norm and no uniform interpretation had been developed in practice , the challenged provision ( that is , section CARDINAL \u00a7 CARDINAL of LAW ) failed to respect the principle nullum crimen sine lege , enshrined in LAW .","As a result , the prohibition on commenting on a rectification in the same issue , hitherto based on that provision , was deprived of its criminal sanction . The remaining elements of the criminal law provision contained in section CARDINAL \u00a7 CARDINAL of LAW retained their binding force .","The court further observed that the prohibition expressed in section QUANTITY of LAW should be secured by an adequately effective sanction , independently of civil liability . It should take into account the principle of proportionality and assume , on the one hand , the protection of the interests of those harmed by press publications and , on the other hand , values linked to the freedom of expression .","On DATE ORG held that section CARDINAL \u00a7 CARDINAL , sections CARDINAL and CARDINAL \u00a7 CARDINAL of LAW were incompatible with LAW . It reiterated its findings concerning the lack of precision in the manner in which criminal offences punishable under those provisions were defined . It further held that as a result of the judgment those provisions were to lose their binding force no later than DATE after the judgment was officially published . Until that time , they should be applied by the courts .","DATE the Civil Code contains a non - exhaustive list of rights known as \u201c personal rights \u201d ( dobra osobiste ) . This provision states :","\u201c The personal rights of an individual , such as , in particular , health , liberty , reputation ( cze\u015b\u0107 ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . \u201d","Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . In accordance with that provision , a person facing the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or claim just satisfaction from him or her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .","Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :","\u201c The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) caused to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... \u201d"],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59204","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2001,"docname":"CASE OF BEER v. AUSTRIA","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"","text":["On DATE the applicant filed an action with ORG ( Arbeits- und ORG ) against her employer , ORG ( PERSON ) . She requested the ORG to order her employer to annul her transfer from CARDINAL department of the hospital where she was working as a nurse to another department .","On DATE ORG granted the applicant 's action by a judgment in default ( ORG ) and ordered the defendant to reimburse the applicant 's costs , i.e. CARDINAL NORP Schillings ( ORG ) .","On DATE ORG filed an appeal against the costs order ( ORG ) . It submitted that the costs had not been calculated correctly under LAW Rechtsanwaltstarifgesetz ) and requested their reduction . This appeal was not transmitted to the applicant .","On DATE ORG ( Oberlandesgericht ) , sitting in camera , granted the appeal , recalculated the costs to be reimbursed and reduced them to ORG CARDINAL,CARDINAL ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61696","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2004,"docname":"CASE OF AHMET \u00d6ZKAN AND OTHERS v. TURKEY","importance":3,"conclusion":"No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life;Pecuniary and non-pecuniary damage - award","judges":"","text":["The case mainly concerns events which took place in DATE in the village of Ormani\u00e7i in the LOC district of the \u015e\u0131rnak province in south - east GPE . The applicants alleged that , on DATE , security forces had attacked Ormani\u00e7i , as a result of which CARDINAL children had died . The applicants further alleged that on DATE the security forces had set fire to houses in Ormani\u00e7i and had taken most of the male villagers into detention . The applicants claimed that these men had been subjected to ill - treatment in detention , resulting in various serious injuries and the death of CARDINAL villager . They further alleged that the security forces had returned to Ormani\u00e7i later in DATE , when they had burned houses and destroyed harvested crops , and that they had returned once again in DATE when they had killed CARDINAL villagers and forced the villagers to leave Ormani\u00e7i .","The facts being disputed by the parties , the ORG appointed Delegates who took evidence in GPE from DATE and from CARDINAL to DATE from CARDINAL applicants , CARDINAL other villager witnesses and CARDINAL officials .","The certified transcripts of the oral evidence , together with the documentary evidence provided by the parties to the ORG , have been transmitted to the ORG .","The parties ' submissions on the facts ( Sections A and B ) and the proceedings conducted before the domestic authorities ( Section C ) are summarised below . The documentary material before the ORG is summarised in PERSON and the oral evidence to the Delegates in Appendix III , which appendices are available on the ORG 's website and which are held in the ORG 's archives .","NORP In TIME of DATE , military forces attacked the village of ORG . Many soldiers were dressed in white camouflage gear . There was snow on the ground and it was very cold . The military forces started attacking the village with rifles and heavy weaponry and later moved into the village , systematically removing each family from their house and taking them to the village square . Many families were unable to dress and were forced into the open with their children without proper clothing and\/or shoes .","Most of the male villagers were beaten as they were taken to the village square , where they were made to lie face down in the mud and snow , and were subsequently blindfolded . The villagers arrived in the square between TIME and remained there until just before sunset . The women and children were also assembled near the village square but were not blindfolded .","While the villagers were being gathered in the square , a detailed search of all the properties was conducted and the soldiers began systematically setting fire to the homes , using an incendiary agent that they appeared to have brought with them specifically for this purpose . Many of the animals which were kept in stables or were wandering around the village were shot , or burned in their stables .","During the raid CARDINAL soldier threw a bomb into the house of a villager called Mevl\u00fcde Ekin . The bomb exploded , causing severe intestinal injuries to her DATE - daughter Abide . PERSON and her other children , together with Abide , were then evacuated to the village square . The village muhtar , PERSON , was taken to the house of PERSON to accompany the soldiers in a search . It was claimed that somebody had been shooting from her house at the soldiers when the bomb was thrown . During this search a soldier inside the house was shot and killed instantaneously . The army commander instructed PERSON to indicate that he had been shot by terrorists , whereas he had in fact been shot by another soldier .","Just before sunset CARDINAL people who had been blindfolded , including PERSON daughter PERSON , were taken from Ormani\u00e7i to \u015e\u0131rnak by helicopter . They were placed in custody in GPE . The remainder of the men were roped together and forced to walk blindfolded and , in many cases , without adequate clothing or footwear , from Ormani\u00e7i to ORG . They had to walk QUANTITY in the snow , which took TIME .","When the men arrived in ORG , they were put into a partly constructed military building . The floors were wet and constantly under water to a depth of QUANTITY . There was no heating or furniture . Many of the men were not fed for DATE . They were systematically tortured and forced , whilst blindfolded , to fingerprint statements which had been prepared for them . They suffered various forms of torture including electric shock treatment , burning with hot metal bars , beatings , and anal rape with a truncheon and with bottles .","As a result of the walk to ORG and the conditions of detention there , many of the men suffered severe injuries to their feet , some of which required subsequent amputation of toes or feet . The men at ORG were moved to \u015e\u0131rnak by helicopter on or DATE .","The persons who had been taken directly to \u015e\u0131rnak were also tortured and forced to sign statements . Allegations were put to them that they were members or supporters of the ORG . CARDINAL man , PERSON , having been tortured , fell ill and was removed to hospital , where he died of pneumonia on DATE .","On DATE , military forces returned to Ormani\u00e7i to burn more houses and kill more animals . The women of the village , together with the children , slept in the mosque , in caves , and in some unburned outbuildings . Abide PERSON died in the mosque , without having received medical attention for her injuries . DATE , another child , ORG , was killed as a result of the explosion of a mortar bomb or grenade that had been left in the village by the military forces after the attack on DATE .","Most of the detained villagers were released either on CARDINAL or DATE . They appeared before public prosecutors at ORG ( NORP district ) and many complained of the torture that they had suffered . On DATE a number of the men were charged with terrorist offences , which were to be tried before ORG . A number of villagers remained in custody until DATE . CARDINAL villagers , PERSON and PERSON , were still in custody at the time of the oral hearing held in DATE . PERSON has been released since , but PERSON is currently still in custody .","Both before and at the time of the transfer of the men from PERSON to PERSON a number were taken to the GPE and ORG , where they were placed in the prison wing . After medical treatment , some had parts of their feet amputated . This was the case of ORG , who was DATE at the material time .","At the time of their release on DATE respectively , the majority of the detained men were taken by bus to PERSON and subsequently to a nearby village . For the most part they returned to Ormani\u00e7i by mule since they were unable to walk . During the period DATE and DATE , as they gradually recovered from their injuries , many of the men attempted to rebuild the burnt houses .","NORP In DATE or DATE there was a further incident in DATE . On this occasion all the villagers were assembled near the school . CARDINAL women were taken into the school and tortured and the soldiers went to a number of houses and removed all of the harvested crops and destroyed them . Some more buildings were also burnt , and further animals died after eating contaminated food . Many of the villagers had left the village to live in caves nearby but had continued to cultivate their land .","A number of other villagers returned to ORG in DATE . In or DATE the soldiers came to the village once more and gunfire was heard in the orchards and fields nearby . After that the soldiers arrived in the village indicating that they had killed CARDINAL terrorists . In fact CARDINAL villagers had been killed as well as CARDINAL alleged members of the ORG . After this incident the villagers were given DATE to leave the village , otherwise they would be killed . They all left and moved to various towns in south - east GPE , including ORG , PERSON and PERSON . A number also moved to GPE . They have been unable to return to the village since that date . Some have remained in a neighbouring village .","In DATE the Government carried out an investigation in Ormani\u00e7i into the events which had taken place there in DATE . No investigation was carried out into the detention of the villagers in GPE or PERSON , notwithstanding the injuries they had suffered whilst in custody . None of the applicants has been offered any compensation for their losses .","While the security forces were approaching the village of ORG on DATE in order to carry out a search in the valley of the NORP stream , they came under fire from the village .","In the course of the ensuing clash , the roofs of some houses in the village caught fire as a result of being hit by tracer bullets fired in the course of the exchange of fire . No house was deliberately set on fire by members of the security forces involved in the incident . Although some livestock in the village may have died of suffocation caused by smoke , none of the members of the security forces involved deliberately killed any livestock there .","Apart from CARDINAL soldier who was killed when conducting a search in CARDINAL of the houses of the village , nobody was injured or killed in Ormani\u00e7i on DATE .","Those villagers who were subsequently taken into detention were not ill - treated during their detention . The injuries sustained by a number of these villagers , which in the case of CARDINAL villagers resulted in the amputation of toes , had been caused by frostbite , for which they received medical treatment while in detention .","One of the villagers taken into detention , who suffered from epilepsy , was transferred to hospital while in detention . He subsequently died in hospital of natural causes .","On DATE the ORG public prosecutor issued a decision of lack of jurisdiction in respect of CARDINAL persons who had been taken into detention on DATE in the village of Ormani\u00e7i and referred the case to the office of the public prosecutor at ORG .","On DATE the public prosecutor at ORG issued a decision of non - prosecution in respect of CARDINAL Ormani\u00e7i villagers for lack of sufficient evidence of the charges of membership of the ORG or aiding and abetting the ORG . These villagers were consequently released .","As regards the other CARDINAL Ormani\u00e7i villagers , on DATE the public prosecutor at ORG issued an indictment committing them to appear before ORG on charges of armed activities on behalf of the ORG , membership of the ORG and\/or aiding and abetting the ORG . Although most of these villagers were released at some point in time , the villagers PERSON and PERSON were still in detention in DATE . In DATE the proceedings before ORG in the case were still pending .","On DATE the public prosecutor at ORG took a decision of non - prosecution in relation to the death on DATE of PERSON , CARDINAL of the LOC villagers taken into detention on DATE . In this decision it was noted that the cause of death found had been pneumonia and it was held that no offence had been committed in that the incident was due to no one 's fault or influence . It was decided that , unless there were any objections , there were no grounds for instituting proceedings .","The applicants did not make an official complaint about the destruction of their property and homes or about their treatment in detention . On DATE PERSON filed a criminal complaint with the office of the public prosecutor in Cizre in relation to her husband PERSON , who had died in hospital while in detention .","On DATE , on the basis of this criminal complaint , the ORG public prosecutor took a decision of non - prosecution . In his decision it was pointed out that the cause of death found was pneumonia .","After the Commission had communicated the applicants ' complaints to the ORG , ORG ordered an investigation into the events of DATE in Ormani\u00e7i , including the death of CARDINAL children in the village .","On DATE the NORP public prosecutor carried out an on - site inspection in Ormani\u00e7i in order to establish whether houses had been demolished and burned and to take statements from applicants . He was accompanied by a civil engineer , who drew up a separate report on the conditions of the houses found in Ormani\u00e7i . Also on DATE , the ORG public prosecutor went to ORG in order to carry out an investigation of the death of CARDINAL children , Abide Ekin and PERSON , in the course of which the CARDINAL children 's remains were disinterred .","On DATE the ORG public prosecutor issued a decision of lack of jurisdiction in the investigation concerning the death of Abide Ekin and PERSON . In his decision it was found to have been established that the children had died as a result of the explosion of explosive devices with which they had played and which had been left unexploded after the incident in Ormani\u00e7i on DATE . The offence was described as causing the death of CARDINAL persons by leaving explosive material in the village . According to this decision , the perpetrators \u2013 referred to as defendants \u2013 were an unspecified number of illegal NORP terrorists . The decision further stated that the case file was to be transmitted to the office of the public prosecutor at ORG for further proceedings .","On DATE the public prosecutor at ORG decided that the ORG public prosecutor \u2013 in co - operation with ORG , ORG and ORG \u2013 was to conduct a further investigation into the deaths of Abide Ekin and PERSON and to communicate the results of this investigation to the office of the public prosecutor at ORG at regular intervals . It appears that such reports were sent on a regular basis . According to the wording of the last report made available , a letter of DATE from ORG to the office of the public prosecutor at ORG :","\u201c the incident occurred as a result of the activities of the outlawed ORG terrorist organisation and upon the establishment of open [ as yet unknown ] identities and apprehension of the perpetrators information will be submitted separately \u201d .","No information has been submitted as to the outcome of the investigation conducted by the PERSON public prosecutor into the destruction of houses in Ormani\u00e7i .","Since DATE serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( ORG of Kurdistan ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces . By DATE the violence had claimed the lives of CARDINAL civilians and CARDINAL members of the security forces . In DATE CARDINAL of the CARDINAL provinces of south - eastern GPE became the subject of emergency rule .","CARDINAL principal decrees relating to the south - eastern region were made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . Decree no . CARDINAL ( of CARDINAL DATE ) established a regional governorship of the state of emergency region in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the Decree , all public security forces and ORG were at the disposal of the regional governor . Decree no . CARDINAL ( of DATE ) reinforced the powers of the regional governor .","The number of provinces affected by the emergency rule decreased over the period DATE . The state of emergency in south - east GPE was fully lifted on DATE when the emergency rule ceased to apply to the last CARDINAL provinces affected by it .","LAW ( ORG ) makes it a criminal offence , inter alia :","\u2013 to deprive someone unlawfully of his or her liberty ( LAW generally , LAW servants ) ;","\u2013 to coerce through force or threats ( Article CARDINAL )","\u2013 to issue threats ( LAW )","\u2013 to subject someone to torture and ill - treatment ( Articles CARDINAL and CARDINAL ) ;","\u2013 to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) ;","\u2013 to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , and CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ;","\u2013 to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; and","\u2013 to damage another 's property intentionally ( Articles CARDINAL et seq . ) .","The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW . Pursuant to LAW , evidence obtained by way of torture or ill - treatment is not admissible in criminal proceedings .","If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE . An appeal against a conviction of a terrorist offence by ORG lies with ORG ( PERSON ) .","If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to the relevant local administrative council ( for the district or province , depending on the suspect 's status ) . That council will appoint an investigator ( muhakik ) to conduct the preliminary investigation , on the basis of which the council will decide whether to prosecute . These councils are made up of civil servants , chaired by the governor . If a decision to prosecute has been taken , it is for the public prosecutor to investigate the case . A decision not to prosecute is subject to an automatic appeal to ORG .","By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL , the DATE PERSON on the prosecution of civil servants also applies to members of the security forces who come under the governor 's authority .","If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a \u201c military offence \u201d under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .","Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage because of an act of the authorities may file a claim for compensation within DATE after the alleged act was committed . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the LAW provides :","\u201c All acts or decisions of the authorities shall be subject to judicial review ...","The authorities shall be liable to make reparation for all damage caused by their acts or measures . \u201d","That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .","NORP However , LAW no . CARDINAL of DATE ( see paragraph CARDINAL above ) provided :","\u201c No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . \u201d","Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .","NORP However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an \u201c administrative act \u201d or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .","Article CARDINAL of LAW provides :","\u201c Everyone has the right to liberty and security of person .","No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law : ...","The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE ... These time - limits may be extended during a state of emergency ...","A person deprived of his liberty , for whatever reason , shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .","Compensation must be paid by the ORG , as the law shall provide , for damage sustained by persons who have been victims of treatment contrary to the above provisions . \u201d","Article CARDINAL of LAW Criminal Code reads as follows :","\u201c Any person who , with the intention of committing the offences defined in Articles ... , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not DATE imprisonment .","The other members of the gang or organisation shall be sentenced to not CARDINAL and not DATE imprisonment . \u201d","Article CARDINAL of LAW provides :","\u201c Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not DATE imprisonment ... \u201d","Under LAW ( Law no . CARDINAL of DATE ) , the offence defined in LAW is classified as a \u201c terrorist act \u201d . Under section CARDINAL , the offence defined in LAW of the same LAW is classified in the category of \u201c acts committed to further the purposes of terrorism \u201d . Pursuant to LAW no . ORG , penalties laid down in LAW as punishment for the offences defined in sections DATE CARDINAL of the Act are increased by CARDINAL .","Under section CARDINAL(a ) of PERSON no . CARDINAL on procedure in ORG , only these courts can try cases involving the offences defined in CARDINAL and CARDINAL of LAW .","At the material time , section CARDINAL of Law no . CARDINAL of DATE provided that , with regard to offences within the jurisdiction of ORG \u2013 including those mentioned in paragraph CARDINAL above \u2013 any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE . In provinces where a state of emergency had been declared , these time - limits could be extended to DATE and DATE respectively .","Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons arrested or detained provides :","\u201c Compensation shall be paid by the ORG in respect of all damage sustained by persons","( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;","( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;","( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;","( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;","( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;","( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or","( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... \u201d","On DATE the Permanent Representative of GPE to ORG sent the Secretary General of ORG the following notice of derogation :","\u201c CARDINAL . GPE is exposed to threats to its national security in LOC which have steadily grown in scope and intensity over DATE so as to [ amount ] to a threat to the life of the nation in the meaning of Article CARDINAL of the Convention .","During DATE , CARDINAL civilians and CARDINAL members of the security forces have been killed by acts of terrorists , acting partly out of foreign bases . Since DATE only , the numbers are CARDINAL civilians and CARDINAL members of the security forces .","The threat to national security is predominantly [ occurring ] in provinces of LOC and partly also in adjacent provinces .","Because of the intensity and variety of terrorist actions and in order to cope with such actions , the ORG has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public , partly emerging from other parts of GPE or even from abroad and with abuses of trade - union rights .","To this end , the Government of GPE , acting in conformity with LAW , has promulgated on DATE the decrees with force of law [ nos . ] CARDINAL and CARDINAL . These decrees may in part result in derogating from rights enshrined in the following provisions of LAW [ on ] Human Rights and Fundamental Freedoms : Articles CARDINAL , CARDINAL , DATE , DATE , DATE and DATE . A descriptive summary of the new measures is attached hereto ... \u201d","A descriptive summary of the contents of the Legislative Decrees nos . CARDINAL and CARDINAL was annexed to this notice .","According to a note in the notice of derogation , \u201c the threat to national security [ was ] predominantly occurring \u201d in the provinces of ORG , ORG , GPE , GPE , GPE , PERSON , PERSON , PERSON and PERSON .","DATE . In a letter of CARDINAL DATE ORG of GPE informed the Secretary General that Legislative Decree no . CARDINAL had been replaced by Legislative Decree no . CARDINAL , promulgated on DATE . A descriptive summary of the decree was appended to this letter .","On DATE the Permanent Representative of GPE wrote to the Secretary General in the following terms :","\u201c As most of the measures described in the decrees which have the force of law ORG . CARDINAL and CARDINAL that might result in derogating from rights guaranteed by ORG CARDINAL , CARDINAL , DATE , DATE , DATE and DATE of the LAW , are no longer being implemented , I hereby inform you that GPE limits henceforward the scope of its LAW with respect to LAW only . The derogation with respect to Articles DATE , DATE , DATE , DATE and DATE of the LAW is no longer in effect ; consequently , the corresponding reference to these Articles is hereby deleted from the said LAW . \u201d","On DATE ORG informed the Secretary General that its LAW in respect of LAW had been withdrawn .","ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( ORG ) of ORG has carried out CARDINAL visits to GPE DATE . The first CARDINAL visits , in DATE and DATE , were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of illtreatment of persons deprived of their liberty , in particular , relating to those held in police custody . A third periodic visit took place at DATE . Further visits took place in DATE , DATE and DATE and DATE . The ORG 's report on its visit in DATE was made public on DATE with the authorisation of ORG .","In a public statement of CARDINAL DATE , the ORG reported that on its first visit to GPE in DATE it had reached the conclusion that torture and other forms of severe ill - treatment were important characteristics of police custody . It noted that the following types of illtreatment had been alleged time and time again - inter alia , NORP hanging , electric shocks , beating of the soles of the feet ( falaka ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . It emphasised that its medical examinations had disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and a psychological nature . The on - site observations in police establishments had revealed extremely poor material conditions of detention . It stated that on its second visit in DATE it had found that no progress had been made in eliminating torture and ill - treatment by the police . Many persons had made complaints of similar types of ill - treatment . An increasing number of allegations had been heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims had been found on examination to display marks or conditions consistent with their allegations . The ORG stated that on its third visit ( a periodic visit ) from DATE to DATE its delegation had been inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . In GPE police headquarters and GPE police headquarters , it found equipment which was consistent with use for torture and the presence of which had no other credible explanation . The ORG concluded in its statement that \u201c the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE \u201d .","In its second public statement issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of visits in DATE , ORG delegations once again found clear evidence of the practice of torture and other forms of severe illtreatment by the police . A considerable number of persons examined by the delegations ' forensic doctors displayed marks or conditions consistent with their allegations of recent ill - treatment by the police , and in particular of beating of the soles of the feet , blows to the palms of the hands and suspension by the arms . It noted the cases of CARDINAL persons who had been very recently detained at the Anti - Terror Department at ORG , cases which ranked among the most flagrant examples of torture encountered by ORG delegations in GPE . The persons examined showed signs of prolonged suspension by the arms , with impairments in motor function and sensation which , in QUANTITY persons , who had lost the use of both arms , threatened to be irreversible . It concluded that recourse to torture and other forms of severe ill - treatment remained a common occurrence in police establishments in GPE .","In the ORG report on its visit in DATE , it noted that the existence and extent of the problem of torture and other forms of ill - treatment of criminal suspects by law - enforcement officials DATE and , more particularly , by police officers \u2013 had been established beyond all doubt in the course of previous ORG visits to GPE DATE . Further , in recent times , senior political figures had openly recognised the realities of the situation . During the ORG 's visit in DATE , a considerable number of allegations were once again heard of torture and ill - treatment by law - enforcement officials . Those allegations emanated from both ordinary criminal offenders and persons detained in respect of offences falling under the jurisdiction of ORG . Further , medical evidence of recent ill - treatment by the police was obtained by the ORG delegation .","The ORG further observed that several of the police establishments visited still possessed interrogation rooms of a highly intimidating nature and stressed that facilities of this kind had no place in a modern police service .","DATE . In the ORG report on its visit in DATE , published on DATE with the authorisation of ORG , the ORG expressed concerns about the continued use in the eastern part of GPE of interrogation rooms with a highly intimidating character , such as those seen in the Anti - Terror Departments at A\u011fr\u0131 , ORG , ORG and ORG and in ORG . According to the ORG , such oppressive facilities had no place in a modern police service .","The ORG further stated in this report that the findings made in the DATE visit indicated that the blindfolding of persons in police \/ gendarmerie custody remained common practice throughout GPE and that persons suspected of narcotics or terrorist offences were apparently particularly prone to this practice . It noted that blindfolds were usually applied at the \u201c preliminary questioning \u201d stage prior to the taking of a formal statement , i.e. at the time when ill - treatment was most likely to occur . It could further not be ruled out that blindfolds were also applied at later stages . The ORG had been told by certain persons that they had been obliged to sign statements attributed to them whilst blindfolded . After the ORG delegation had discovered a blindfold in an interrogation room inspected , the delegation was informed by a senior officer that it would be applied to certain suspects undergoing questioning in order to prevent them from seeing the interrogating officers . In its report the ORG stated that it was clear from the information gathered by it over DATE that in many , if not most , cases , persons were blindfolded in order to prevent them from being able to identify law - enforcement officials who inflicted ill - treatment upon them . As a result of this practice , legal proceedings against those who tortured and illtreated could be severely hampered .","As regards the medical examination of persons held in custody , as already addressed in considerable detail in previous ORG visit reports , the ORG noted that dialogue with the NORP authorities on this point had focused on QUANTITY issues : the principle that law - enforcement officials should not be present during the medical examination , and possible exceptions to that principle ; and the need to ensure that doctors carrying out the medical examination used the standard forensic medical form approved by the NORP authorities . The ORG delegation that carried out the visit in DATE found that there remained much room for progress as regards both these issues , in particular in the eastern part of GPE , where interviews with detained persons suggested that it was very rare for lawenforcement officials not to be present during medical examinations . Numerous persons stated that they had been warned prior to the examination not to say anything to the doctor about the treatment they had received , and that the presence of law - enforcement officials during the examination had ensured that they heeded that warning . Some persons interviewed stated that when the doctor had inquired as to the origin of injuries they bore the law - enforcement official present had protested . Doctors at ORG in ORG acknowledged that the examination always took place in the presence of police officers or members of the gendarmerie . In discussion with doctors at ORG , it was indicated that it was common for CARDINAL or more persons to be examined simultaneously and that lesions observed might not be recorded \u201c in order to avoid problems with the police \u201d . The ORG further concluded that it was clear that , instead of using the \u201c ORG \u201d approved by the NORP authorities , the old practice of very brief findings set out on a piece of paper without any headings , and often covering several detained persons , remained common .","Reiterating that no legal safeguard against ill - treatment was more fundamental than the requirement that the fact of a person 's deprivation of liberty be recorded without delay , the ORG indicated in its report that the current practice concerning the recording of detention required improvements in certain respects . It appeared that the trigger for making an entry in the book of admissions was the fact of placing someone in a cell . As a person could be deprived of his liberty for TIME in a lawenforcement establishment before being placed in a cell , this initial period of detention often appeared to go unrecorded .","In the preliminary observations made by the ORG delegation on its visit carried out in DATE , it was noted that prison staff were still present during medical examinations . The ORG delegation further indicated that it had gathered compelling evidence of severe ill - treatment of several persons held by the gendarmerie in ORG in DATE . This illtreatment had apparently begun during the initial period of custody and had continued during the period spent in the custody of the gendarmerie . The delegates ' visit to ORG , where the illtreatment was said to have occurred , reinforced the credibility of the allegations made . It was of an oppressive and intimidating nature , not unlike the facilities criticised in the ORG report on its DATE visit .","NORP The ORG delegates further discovered that , in GPE , lawenforcement officials were systematically present when suspects were medically examined at the outset and at the end of their custody . Many prisoners interviewed told the ORG delegates that they had been warned not to make any complaints to the doctor about how they had been treated , and that the presence of law - enforcement officials had deterred them from making complaints . Some doctors spoken to indicated that , despite their objections , law - enforcement officials had been present during medical examinations . Moreover , some doctors mentioned cases in which reports which they had drawn up recording injuries had been torn up by law - enforcement officials ."],"violated_articles":["2","3","5","8"],"violated_paragraphs":["2-1","5-1","5-3"],"violated_bulletpoints":[],"non_violated_articles":["2","3"],"non_violated_paragraphs":["2-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70530","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2005,"docname":"CASE OF SAVITCHI v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is a journalist .","On DATE the NORP language newspaper \u201c The New Order \u201d published an article entitled \u201c Traffic Police \u2013 My Star \u201d signed by the applicant . The article stated inter alia that :","\u201c ... This is quite a banal story for us regular citizens , and a normal phenomenon for the traffic inspectors . In any event , it serves as a good example of the \u2018 star ORG suffered by the traffic inspectors .","A person was driving his PERSON on PERSON Street . Let us call him \u2018 Victor\u2019 . When he approached the PERSON cel Mare and GPE crossroads , the traffic lights turned red and , like any normal person , PERSON pressed the brakes . But people who abide by the rules are not always lucky . A luxurious speeding Opel ran into the old PERSON . Both cars were damaged , but the PERSON was damaged more . PERSON stayed at the place of the accident , as any man believing in the strictness of the law would do , awaiting the arrival of the police and their wise and fair verdict . The owner of the \u2018 Opel\u2019 though , aware of his guilt , hit the gas and disappeared .","Before long a Sergeant of the traffic police arrived and began to take measurements and investigate , making notes in a note book . At the height of the investigation the owner of the ORG arrived , but without his car . He waited until the policeman finished his work , and then said that he would go to ORG to solve the problem .","At ORG the CARDINAL car owners and the policeman were received by a person of a venerable age with the epaulets of a LOC ( later we found out that he worked in the emergency department ) . The owner of the Opel addressed him in a very friendly way , calling him \u2018 Jora\u2019 . The Sergeant - major PERSON approached the young Sergeant , who investigated the accident , and asked him in a way more like an order than a question : \u2018 How many years have you been working for the Traffic Police?\u2019 DATE ... \u2018 But I worked for DATE ; therefore you should listen to me . Do n\u2019t write anything , let the people come to an agreement themselves and the guilty one ( i.e. the owner of the Opel ) pay to the second one approximately CARDINAL PERSON ( MDL ) . In any event his car is a flea - pit , and there is no need to make a lot of fuss.\u2019","The owner of the \u2018 flea - pit\u2019 , who can not be considered a wealthy man , almost lost the power of speech when he heard that . How was it possible to offer him such a petty sum for his severely damaged car ? Since the victim would not agree , Sergeant - Major PERSON and the owner of the Opel increased somewhat the amount , bargaining for each leu . Afraid that he would not get anything , PERSON agreed to the sum of MDL DATE . He later had his car fixed by some acquaintances , who laughed at him for being fooled like a boy . PERSON spent a little bit more than MDL CARDINAL for the repair \u2013 a sum that might seem ridiculous to some traffic inspectors . For PERSON though , this is really big money . But it is not the money , that he \u2019s worried about , but the way he was treated at ORG , in particular this Sergeant - Major PERSON , who treated him as a man from the lowest strata , almost as a nonentity . After DATE PERSON went to PERSON and asked for his driver \u2019s licence back . ORG promised to return the driver \u2019s licence , but only on condition that PERSON paid a fine of MDL CARDINAL . PERSON was dumbfounded . \u2013 \u2018 Why should I pay a fine ? What did I do?\u2019 PERSON , answered very furiously : \u2018 Once I say that you should pay , then you should pay , without asking any questions.\u2019","PERSON , who was very upset about the absurdity of the situation , warned the policeman that he would complain to his superiors . ORG , understanding that there was no way for him to prevail , literally went ballistic . He threw the driver \u2019s licence in PERSON \u2019s face , shouting like a madman .","- \u2018 He would complain ! Who are you ? Take your documents and get out of here , and pray God not to come back to the Traffic Police , because otherwise you \u2019ll get into big trouble.\u2019","The man took his driver \u2019s licence and left FAC , meditating on what PERSON could possibly do to him if ever he came back ... \u201d","On an unspecified date in DATE a policeman named GPE lodged a civil action for defamation against the applicant and the publishing office of the newspaper with ORG . Relying on Articles CARDINAL and CARDINAL of LAW , the complainant alleged that the article contained statements which were defamatory of him .","DATE several oral hearings were held and several witnesses were heard . The applicant and the newspaper stated that the facts presented in the article were a simple reproduction of the story told by PERSON , the victim of the road accident . PERSON gave evidence to that effect . They further stated that the information contained in the article was not of a defamatory nature and could not harm in any way the reputation of the complainant , particularly since it did not contain his full name , but only a diminutive of his first name .","By its judgment of DATE , ORG found that the information contained in the article was defamatory of GPE and did not correspond to reality . It argued that in the emergency department of ORG there was only CARDINAL Sergeant - Major PERSON , and that he was therefore easily identifiable . In particular , the court quoted the following extracts from the article as being defamatory :","\u201c ... this sergeant - major PERSON , who treated him as a man from the lowest strata , almost as a nonentity . \u201d","The court found that this statement conveyed the idea \u201c that \u2018 Jora\u2019 was a policeman who could not behave with other people , and who was not a very positive person \u201d .","\u201c The sergeant - major , promised to return the driver \u2019s licence , but only on condition that PERSON paid a fine of MDL CARDINAL . \u201d","The court found that this statement did not correspond to reality since PERSON forgot to take his driving licence . Moreover , PERSON could not prove that he was requested to pay a fine .","\u201c He threw the driver \u2019s licence in PERSON \u2019s face , shouting like a madman . \u201d","\u201c Take your documents and get out of here , and pray God not to come back to ORG , because otherwise you \u2019ll get into big trouble . \u201d","The court found that these statements were defamatory of GPE since they characterised him as a brutal , menacing and vindictive person . Moreover , the applicant did not bring any evidence in support of these statements . The court did not make any note of PERSON \u2019s testimony in its judgment .","The court ordered the applicant and the newspaper to pay the complainant non - pecuniary damages of MDL CARDINAL ( the equivalent of MONEY ( ORG ) at the time ) and LAW ( the equivalent of ORG CARDINAL at the time ) respectively . It also ordered them to publish a denial of the above statements .","Only the newspaper appealed against this judgment . The applicant lodged a request submitting that she fully agreed with the appeal and that she subscribed to it .","On CARDINAL DATE ORG dismissed the appeal on the ground that the applicant had not proved the truth of her statements .","The newspaper lodged an appeal in cassation against the judgment of ORG . The applicant neither lodged an appeal in cassation nor subscribed to the one lodged by the newspaper .","On DATE ORG upheld the appeal in cassation and quashed the judgments of ORG and of ORG in respect of both the newspaper and the applicant . It issued a new judgment , in which it found in favour of ORG .. In its judgment the court found that only the following statements were defamatory and did not correspond to reality :","\u201c ... this sergeant - major PERSON , who treated him as a man from the lowest strata , almost as a nonentity . \u201d","\u201c He threw the driver \u2019s licence in ORG \u2019s face , shouting like a madman . \u201d ( PERSON \u0432\u043e\u0434\u0438\u0442\u0435\u043b\u044c\u0441\u043a\u0438\u0435 \u043f\u0440\u0430\u0432\u0430 \u0432 \u043b\u0438\u0446\u043e , \u043a\u0440\u0438\u0447\u0430 \u043a\u0430\u043a \u043f\u043e\u043c\u0435\u0448\u0430\u043d\u043d\u044b\u0439 )","It ordered the newspaper to publish a denial of the above statements within DATE . It ordered the applicant and the newspaper to pay the complainant non - pecuniary damages of MDL QUANTITY and MDL CARDINAL respectively . It also ordered both the applicant and the newspaper to pay the court fees of MDL CARDINAL .","The relevant provisions of LAW in force at the material time read :","Article CARDINAL . Protection of honour and dignity","\u201c ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .","( CARDINAL ) When the media body which circulated such statements is not capable of proving that these statements correspond to reality , the court shall compel the publishing office of the media body to publish , not later then DATE after the entry into force of the judicial decision , a withdrawal of the statements in the same rubric , on the same page or in the same programme or series of broadcasts . \u201d","Article CARDINAL . Compensation for moral damage","\u201c ( CARDINAL ) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality , as well as statements concerning his or her private or family life without his or her consent , shall be compensated by way of a pecuniary award . The amount of the award shall be determined by the court .","( CARDINAL ) The amount of the award shall be determined by the court in each case as an amount equal to CARDINAL minimum wages if the information has been circulated by a legal person and CARDINAL if the information has been circulated by a natural person . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5198","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2000,"docname":"ALTIN v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is a NORP national , born in PERSON and living in GPE , GPE .","A. Circumstances of the case","The applicant was formerly a public prosecutor . In DATE he wrote a letter to the Minister of ORG criticising him as well as a political party forming part of the coalition government for , inter alia , the continuation of the terrorist campaign . He stated that the party in question had been elected on the backs of the terrorists . Furthermore he criticised a number of new amendments made to the law on criminal procedure which were intended to increase the rights of the accused . The applicant repeated the same views and opinions in a book which he published .","On DATE ORG ( PERSON ve PERSON \u201c the ORG \u201d ) held that his statements were highly political and incompatible with the objectivity required by his functions . ORG transferred him to a lesser jurisdiction for disciplinary reasons .","The applicant requested ORG to rectify ( \u201c yeniden inceleme \u201d ) its decision . On DATE his request was rejected . The applicant then raised an objection ( \u201c itiraz \u201d ) to the decision before ORG ( ORG : \u201c the Objections Board \u201d ) . On DATE ORG upheld ORG decision .","On several occasions in DATE the applicant made oral comments to his colleagues or published poems expressing his disapproval of the activities of the above - mentioned political party . He gave a television interview in which he criticised ORG decision to transfer him as well as the ORG \u2019s structure .","On DATE ORG again ruled that the applicant \u2019s statements and conduct were highly political and incompatible with the objectivity requirements of his office . ORG found , inter alia , that the applicant had been behaving \u201c like a professional politician \u201d . ORG also found that the applicant had spent his sick leave in a distant locality without prior permission . On the basis of these CARDINAL grounds ORG again transferred the applicant to a lesser jurisdiction for disciplinary reasons . The applicant requested ORG to rectify this decision . On DATE his request was rejected . The applicant then raised an objection to the initial decision with ORG . On DATE ORG upheld the decision .","Subsequently ORG noted that the applicant had been given CARDINAL disciplinary punishments . It held on DATE that , in accordance with section CARDINAL \u00a7 CARDINAL of Law no . CARDINAL , the applicant should be removed from office . The applicant requested ORG to rectify this decision . In the meantime , on DATE , the applicant resigned from his functions .","On DATE ORG re - examined the applicant \u2019s disciplinary file and upheld the decision of DATE . The applicant raised objection to the decision of ORG . In his petition of CARDINAL DATE to ORG the applicant wrote inter alia that he had voluntarily ( \u201c kendi iste\u011fimle \u201d ) resigned and requested that the administrative punishment ( removal from office ) be , at least , converted to a lighter form of punishment . The applicant was heard in person by ORG on DATE . On DATE ORG ruled that ORG decision of CARDINAL DATE was taken in accordance with the law .","B. Relevant domestic law","According to Article PERSON ) of the Code on ORG and Public Prosecutors , conduct of a judge or public prosecutor which is considered incompatible with the impartiality requirements of his functions renders him liable to be transferred to a lesser jurisdiction .","According to LAW , any judge or public prosecutor who has been sanctioned for disciplinary reasons on CARDINAL occasions by being transferred to a lesser jurisdiction shall be liable to be removed form office ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88385","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2008,"docname":"CASE OF MULLER v. AUSTRIA (No. 2)","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in GPE . He is the owner and managing director of M , a building company .","On DATE a worker employed by the M company mounted a scaffold ( which was owned , however , by another building firm ) at CARDINAL of the company \u2019s building sites at FAC in GPE . He fell and died DATE .","Subsequently the GPE ORG ( GPE ) started preliminary inquiries ( FAC ) against the applicant on suspicion of having caused death by negligence ( fahrl\u00e4ssige PERSON ) , an offence under LAW . On DATE he discontinued the inquiries .","On DATE GPE issued a penal order ( PERSON ) against the applicant as manager of the M company , imposing a fine for an administrative offence under section CARDINAL(CARDINAL ) , no . CARDINAL , of LAW ( Arbeitnehmerschutzgesetz ) read in conjunction with several provisions of ORG ( Bauarbeiterschutzverordnung ) . It found that the applicant had disregarded the duties of an employer concerning the properties , conditions , use , inspection or maintenance of equipment ( PERSON betreffend die PERSON , die PERSON , die PERSON , die Pr\u00fcfung oder die PERSON ) as , on DATE , a scaffold used at the building site at FAC , GPE , had lacked protective barriers on CARDINAL sides at head , chest and foot level and the protective barriers on the fourth side had not been properly secured .","On DATE the applicant , assisted by counsel , appealed to ORG ( \u201c the ORG \u201d \u2013 PERSON ) . He submitted that at the building site at FAC in GPE CARDINAL scaffolds owned by different construction companies had been in use . While the CARDINAL belonging to the M company had all the necessary protective elements , the defective scaffold used by the employees of the M company , which had led to the industrial accident , was owned by another company . On CARDINAL DATE the applicant submitted further that the ORG should quash the penal order as the administrative criminal proceedings had been conducted in breach of the principle of ne bis in idem .","On DATE the ORG quashed the penal order of DATE . Referring to ORG case - law on LAW No . CARDINAL , the ORG found that criminal proceedings for causing death by negligence under LAW and proceedings under section CARDINAL(CARDINAL ) , no . DATE , of LAW , read in conjunction with ORG , concerned essentially the same conduct as in both cases the authorities and courts had to examine whether the provisions for the protection of construction workers had been complied with . In such circumstances , the person responsible for compliance with these rules was also criminally liable under LAW in the event of an accident at work leading to the death of the victim . Therefore the ORG was prevented from conducting administrative criminal proceedings against the applicant even though finally ORG had discontinued his inquiries into the charge of causing death by negligence against the applicant .","On DATE the Federal Minister for Economy and Labour ( PERSON LOC und PERSON ) filed a complaint with ORG against the ORG \u2019s decision . The Federal Minister pointed to ORG case - law , according to which a conviction under LAW concerned essentially the same punishable conduct as the offence under section CARDINAL(CARDINAL ) , no . DATE , of LAW . Thus , to conduct CARDINAL sets of criminal proceedings concerning these offences would be in breach of LAW No . CARDINAL . The ORG had , however , overlooked the fact that in the present case no proceedings had been conducted against the applicant before a criminal court . The inquiries by ORG , an employee of ORG , had the purpose of verifying whether or not a charge should be brought against a person and whether proper criminal proceedings should be opened . As a result ORG had discontinued the preliminary inquiries since he had not found sufficient reasons to prosecute the applicant . That being so , it could not be said that an act had been committed which fell within the scope of LAW . The ne bis in idem principle did not therefore apply .","On DATE ORG quashed the ORG \u2019s decision of DATE . ORG found that the ne bis in idem principle was not at stake if a public prosecutor discontinued preliminary inquiries on a criminal information pursuant to LAW , as in such a case the public prosecutor \u2013 either immediately or after conducting inquiries \u2013 arrived at the conclusion that the criminal information was unfounded , and that the act to which it referred was not punishable or did not justify prosecution . Such a case must be distinguished from the material facts in ORG decision to which the ORG had referred , as that case had not concerned the termination of investigations LAW CARDINAL of the Code of Criminal Procedure .","On DATE the ORG gave a fresh decision on the applicant \u2019s appeal and this time upheld the GPE \u2019s penal order after having held oral hearings on DATE and DATE . The ORG noted that the workers present at the building site had used a scaffold belonging to another building company . The applicant , as the person responsible , had not installed a properly functioning control system , verifying that the scaffolds and other materials used by the workers complied with safety regulations and that the workers had been trained in complying with these regulations . The applicant had therefore been responsible for the non - compliance with the safety regulations .","On DATE the applicant lodged a complaint with ORG , alleging , inter alia , that the impugned decision disregarded the principle of ne bis in idem .","On DATE ORG declined to deal with the applicant \u2019s complaint for lack of prospect of success , and on DATE ORG also declined to deal with the applicant \u2019s complaint for lack of prospect of success in accordance with section MONEY of LAW .","Sections CARDINAL to CARDINAL of LAW Strafproze\u03b2ordnung ) concern the conduct of preliminary inquiries ( Vorerhebungen ) and preliminary investigations ( PERSON ) .","In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file ( LOC ) on a criminal information , the public prosecutor may first have preliminary inquiries carried out by the investigating judge , ORG or the police authorities ( Section CARDINAL \u00a7 CARDINAL ) .","Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution , he or she must either request the institution of preliminary investigations or file a formal indictment ( PERSON , PERSON ; LAW ) . LAW provides that preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit the person for trial and prepare the taking of evidence at the trial .","Section CARDINAL \u00a7 CARDINAL provides that preliminary investigations are in principle conducted by the investigating judge personally and directly .","Section CARDINAL \u00a7 CARDINAL of the Code of Administrative Offences provides :","\u201c Unless a provision of administrative law states otherwise , negligent behaviour is sufficient to establish guilt . Negligence is to be assumed in the case of failure to observe a prohibition or a prescription where damage or danger is not an element of the administrative offence , and the defendant does not convincingly show that no fault lies with him for the contravention of the provision of administrative law . \u201d"],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100481","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF ALEKSANDR LEONIDOVICH IVANOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 3","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and is serving a prison term in LOC .","The applicant was a student of ORG , which trained law enforcement officers . On DATE the applicant was arrested on suspicion of murder . By a judgment of DATE , ORG convicted the applicant of theft and murder , and sentenced him to DATE imprisonment . On DATE ORG of GPE upheld the judgment .","DATE the applicant was detained in a temporary detention centre in the town of GPE . From DATE to DATE the applicant was detained in GPE remand centre no . CARDINAL .","According to the applicant , he was kept in the remand centre in cell no . CARDINAL ( designed for CARDINAL persons ) together with CARDINAL other inmates . Owing to an insufficient number of beds , they had to sleep in shifts . The cell windows were covered with metal shutters that barred access to natural light and air . In DATE the applicant was kept in the cell together with CARDINAL to QUANTITY other persons .","The applicant subsequently indicated that in DATE - CARDINAL he had been afforded QUANTITY of living space in the cell . The toilet was not separated from the living area . In the absence of any ventilation , the smell spread into the cell . He also alleged that on DATE of court hearings in DATE he had to get up at TIME and was taken back at TIME without any food or drink .","The applicant was kept in the remand centre from DATE to DATE . The applicant was placed in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds . This cell was assigned to former law enforcement officers , who had to be kept separately from the other ( potentially hostile ) detainees . With reference to certificates issued in DATE by the acting director of the remand centre , the ORG stated that this cell had accommodated CARDINAL detainees during the relevant periods . In support of the above , the Government enclosed statements made in DATE by CARDINAL officers serving in the remand centre , who confirmed that the above information was correct and that the conditions of the applicant 's detention during the relevant periods had been appropriate . The Government also enclosed a statement made in DATE by a convict who had been detained in cell no . CARDINAL from DATE . This person stated that during that period there had been CARDINAL beds and CARDINAL detainees and that the material conditions had been acceptable . A similar statement was made in DATE by another detainee who had been kept in that cell from DATE to DATE .","From DATE the applicant was also kept in cell no . CARDINAL , which measured QUANTITY and had CARDINAL bed .","According to the Government , the applicant was provided with an individual bed and bedding in both cells . He had access to a shower once DATE . He had DATE outdoor walks . The metal shutters on the cell window(s ) were aimed at preventing inter - cell communication and did not impede access to natural light . The works for removing the shutters were carried out DATE .","On DATE when investigative measures were carried out or hearings were held ( DATE \u2013 September CARDINAL ) , the applicant had had to get up TIME and was taken back to the cell before TIME On DATE , he had been fed and had also been able to take food bought by him or received from next of kin .","As can be seen from the certificate submitted by the Government , the cell record cards for DATE were destroyed on DATE after the expiry of the DATE retention period . The registers concerning the population of the remand centre DATE and DATE were destroyed on DATE after the expiry of the DATE retention period .","The following data is given on CARDINAL of the certificates submitted by the director of the remand centre . The \u201c maximum design capacity \u201d of the remand centre was CARDINAL detainees . DATE the design capacity went up to CARDINAL detainees owing to the construction of new buildings . As can be seen from another certificate , in DATE the remand centre accommodated an average of CARDINAL persons ( to CARDINAL beds ) ; in DATE the figure was CARDINAL persons ( to CARDINAL beds ) and in DATE there were CARDINAL persons ( to CARDINAL beds ) .","The applicant complained to the prosecutor 's office of LOC alleging that he had been ill - treated at the temporary detention centre and that his state of health had deteriorated while in detention . On DATE the prosecutor 's office rejected his complaints as unfounded . By a letter of DATE , the prosecutor 's office rejected the applicant 's further complaint concerning conditions of detention and stated , in particular , that his state of health had been satisfactory , except for a slight deterioration of his eyesight .","In DATE the applicant complained to ORG for the Execution of Sentences about the allegedly degrading conditions of his detention , referring in particular to the overpopulation in the remand centre and lack of access to natural light and airflow in the cells . By a letter of DATE , ORG acknowledged the overpopulation problem in \u201c certain cells \u201d in the remand centre in DATE and DATE and stated that in DATE the metal shutters had been partly removed from the cell windows and had been completed removed in DATE ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-66772","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2004,"docname":"MAZUREK v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively . They live in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants shared an apartment with a certain married couple , PERSON and GPE On DATE the applicants requested ORG ( Sad Rejonowy ) to order eviction of PERSON and GPE ( \u201c the defendants \u201d ) from the apartment . They claimed that the defendants had no legal title to occupy the LOC .","On DATE the ORG gave judgment , in which it ordered eviction of the defendants from the applicants\u2019 apartment . The judgment became final . On DATE ORG issued a writ of enforcement .","The case was transferred to ORG ( Urzad PERSON ) which was charged with enforcement of the judgment by providing the defendants with an alternative dwelling ( lokal zastepczy ) .","On DATE the applicants lodged with the Gda\u0144sk Governor ( Wojewoda ) a complaint about the inactivity of ORG . The complaint was transferred to ORG , which ordered ORG to submit the ORG casefile . Subsequently , ORG informed ORG that no decision had yet been made in the case .","Following several complaints made by the applicants to ORG , the MPs and the ORG , on DATE the Rumia Mayor informed them that it was not possible to give an exact date when the proceedings would end because the municipality did not have available a sufficient number of alternative dwellings .","On DATE the applicants turned to the Pomorskie Governor complaining about the inactivity of the administrative authorities .","On DATE the Pomorskie Governor requested the Rumia Mayor to deal with the case as soon as possible .","On DATE the Rumia Mayor provided the defendants with an alternative dwelling .","According to the LAW on ORG ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) , enforcement of a final court \u2019s judgment concerning the provision of an alternative dwelling should be dealt by the municipalities in accordance with the provisions of LAW .","LAW lays down timelimits ranging DATE for dealing with a case pending before an administrative authority . If those time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new timelimit .","Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent future such delays .","Until DATE , under LAW , a party to administrative proceedings could , at any time , lodge with ORG a complaint about the fact that an administrative authority had failed to issue a decision .","On DATE , when a new LAW DATE on ORG ( \u201c the DATE LAW ) took effect , LAW was repealed . Under section CARDINAL of LAW , a party to administrative proceedings may , at any time , lodge with ORG a complaint against inactivity on the part of an authority obliged to issue an administrative decision .","Section CARDINAL of the PERSON provides :","\u201c When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . \u201d","Moreover , the ORG notes that pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity is legally binding on the authority concerned . If the authority has not complied with the decision , the court may , under section CARDINAL of the DATE Act , impose a fine on it and may itself give a ruling on the right or obligation in question .","Pursuant to LAW , a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of ORG given under LAW , is entitled to claim compensation from the administrative authority concerned , according to principles of civil liability as set out in LAW . Such a claim should be first lodged with that authority . A decision on the compensation claim should be taken by that administrative authority within DATE .","If the authority concerned fails to give a ruling in this respect within this timelimit , or if the party is not satisfied with the compensation granted , a compensation claim against the administrative body can be lodged with a civil court .","Section CARDINAL of the CARDINAL Act sets out the requirement of the exhaustion of available remedies before lodging a complaint with ORG . Accordingly , a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the abovementioned LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58825","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2000,"docname":"CASE OF POBORNIKOFF v. AUSTRIA","importance":3,"conclusion":"No violation of Art. 6-1 as regards the plea of nullity;Violation of Art. 6-1 as regards the appeal against sentence","judges":"","text":["On DATE ORG at ORG ( PERSON ) filed an indictment charging the applicant with murder . It was alleged that the applicant , in DATE , had killed his wife and had then buried her decapitated corpse in a field where it had been discovered in DATE . It was further alleged that he had had a mistress , and had run into financial difficulties as he had rented and furnished an apartment for her and had maintained her , whereas his wife , who had opposed a divorce , had owned the spouses ' house and a collection of jewellery of considerable value . In these and the trial proceedings the applicant was represented by official counsel , Mr. PERSON","On DATE ORG , sitting as a ORG ( GPE ) , gave judgment . The jury found the applicant guilty of murder . The court , sitting with the jury , sentenced him to life imprisonment . It considered as aggravating circumstances that the applicant had acted for particularly base motives and had acted cruelly . It found that there were no mitigating circumstances .","On DATE the applicant , still represented by Mr. PERSON , filed a plea of nullity ( GPE ) and an appeal ( GPE ) . In his plea of nullity he complained about the composition of the court , the court 's failure to put alternative questions to the jury and about the lack of reasons for the jury 's verdict . He also submitted that there was no factual basis for finding him guilty . In his appeal he complained in particular that ORG judgment did not give sufficient reasons for the sentence . As to the aggravating circumstances , it was not clear which motives had been established and deemed particularly base . Nor did the judgment mention any facts which would allow the conclusion that he had acted in a cruel manner . As to possible mitigating circumstances , the applicant complained that ORG had failed to take his advanced age and lack of prior convictions into account . The applicant did not request to attend the hearing before ORG .","On DATE ORG ( Oberster Gerichtshof ) fixed the hearing date for the applicant 's plea of nullity and his appeal for DATE . The applicant received a notification , which stated that his counsel would be summoned to the hearing . As to the hearing of the plea of nullity , the notification informed him that he , being detained , could only appear through his counsel . As to the hearing of the appeal , he would not be brought to the court as the conditions of S. CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure ( Strafproze\u00dfordung ) were not fulfilled . At an unspecified date in DATE , the applicant was informed by ORG that for the purpose of his representation at the hearing before ORG a new official defence counsel , PERSON , had been appointed as PERSON would be unable to attend .","On DATE ORG , after having held a hearing in the absence of the applicant but in the presence of his new official defence counsel , Mr. PERSON , rejected his plea of nullity as well as his appeal . As regards the appeal , the ORG found that the applicant had rightly claimed as a mitigating circumstance that he had no prior convictions . Furthermore , cruelty had not been factually established as an aggravating circumstance . However , there was evidential support for the conclusion that the applicant had acted for particularly base motives . Attaching particular weight to this aggravating circumstance , ORG found that - notwithstanding the aforementioned deficiencies - the sentence of life imprisonment was commensurate with the applicant 's guilt .","The first - instance judgment of an assize court may be challenged by a plea of nullity to ORG on the specific grounds enumerated in section CARDINAL \u00a7 CARDINAL of LAW . ORG task is mainly to control the acts of the bench and the presiding judge of the assize court . Its examination includes whether the trial has been conducted in a manner which complies with fundamental procedural principles , whether the right questions have been put and the correct directions given to the jury . ORG may only verify whether the jury has provided unclear , incomplete or contradictory answers to the questions put to it . ORG supervises the correct application of the criminal law , but in so doing is bound by the jury 's findings of fact .","In certain cases ORG may reject a plea of nullity without a public hearing ( section CARDINAL ( c ) of LAW ) . In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence .","As regards the hearing on a plea of nullity , section CARDINAL of LAW provides :","\u201c CARDINAL . When the date of the public hearing is being fixed , the accused ... shall be summoned ...","If the accused is under arrest , the notice of the hearing given to him shall mention that he may only appear through counsel . ... \u201d","Section CARDINAL of the Code of Criminal Procedure extends these rules to nullity pleas arising out of jury trials .","However , if the hearing is a combined one on a plea of nullity and an appeal against sentence , an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea .","The sentence as such may be challenged by way of an appeal against sentence . It may concern both points of law ( in particular whether mitigating or aggravating circumstances have been correctly taken into account ) and factors relating to the assessment of the sentence . Where the substance of an appeal is examined , a public hearing must normally be held .","As regards the personal appearance of the accused at a public appeal hearing , section CARDINAL \u00a7 CARDINAL , second sentence , of LAW provides :","\u201c An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter - statement or otherwise if his personal presence appears necessary in the interests of justice . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58299","languageisocode":"ENG","respondent":"DEU","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF BEER AND REGAN v. GERMANY","importance":2,"conclusion":"No violation of Art. 6-1","judges":"Luzius Wildhaber;Paul Mahoney","text":["Mr Karlheinz Beer is a NORP national , born in DATE and resident in ORG . MrPhilipRegan is a NORP national , born in DATE and resident in GPE in GPE .","NORP In DATE the first applicant , a civil engineer by profession and employed by the NORP company S. , was placed at the disposal of ORG to perform services at ORG in GPE . The first applicant \u2019s contract was later taken over by the NORP company T.","The second applicant , a systems programmer and employed by the NORP company ORG , was placed at the disposal of ORG to perform services at ORG in FAC in DATE .","ORG ( \u201c ORG \u201d ) with headquarters in GPE , formed out of ORG ( \u201c ESRO \u201d ) and ORG for ORG ( \u201c ELDO \u201d ) , was established under LAW ( \u201c LAW \u201d ) of CARDINAL DATE ( LAW DATE , vol . CARDINAL , I \u2013 no . DATE ) . ORG runs ORG ( \u201c ORG \u201d ) as an independent operation in FAC ( Agreement concerning ORG of DATE \u2013 Official PERSON ( PERSON ) II no . CARDINAL , CARDINAL.CARDINAL.CARDINAL ) .","In DATE and DATE the applicants instituted proceedings before ORG ( Arbeitsgericht ) against ORG , arguing that , pursuant to ORG ) , they had acquired the status of employees of ORG . In his submissions , the second applicant indicated that , by letter of CARDINAL DATE , his employer ORG had dismissed him .","In the respective labour court proceedings , ORG relied on its immunity from jurisdiction under LAW and its Annex I.","On DATE ORG , following hearings , declared the applicants\u2019 respective actions inadmissible .","In both decisions , ORG considered that ORG had validly relied on its immunity from jurisdiction . ORG , referring to section CARDINAL ) of LAW ( Gerichtsverfassungsgesetz ) , according to which immunity from jurisdiction could be provided for , inter alia , in international agreements , considered that ORG enjoyed such immunity under LAW of LAW and its GPE","In its reasoning , ORG considered in particular that ORG had been established in DATE as a new and independent international organisation . It therefore rejected the ORG argument that ORG was bound by LAW concerning ORG , which had subjected the former ESRO to NORP jurisdiction in cases of disputes with its employees which were outside the competence of its ORG .","ORG further recalled that ORG ( Bundesarbeitsgericht ) , in a decision of DATE in a similar case ( file no . CARDINAL AZR CARDINAL\/CARDINAL ; see the PERSON and PERSON v. GPE judgment of DATE , to be published in the ORG \u2019s official reports , \u00a7 \u00a7 DATE ) , had found that the rules in question did not conflict with fundamental principles of NORP constitutional law .","In view of the decisions taken in the case of PERSON and PERSON PERSON , the applicants did not pursue the matter .","In the proceedings instituted by the second applicant against his dismissal by the company FAC ( see paragraph CARDINAL above ) , a settlement had been reached in ORG on DATE . According to this settlement , the second applicant \u2019s employment with the company ORG had terminated on DATE , and the company ORG undertook to pay to the second applicant the sum of MONEY ( ORG ) for loss of job .","Under the terms of an agreement concluded on DATE with the first applicant , terminating his contract of employment on DATE , the company ORG undertook to pay to the first applicant the sum of DEM CARDINAL for lawyer \u2019s fees incurred in labour court proceedings concerning his dismissal and DEM CARDINAL for the loss of his job .","Section CARDINAL(CARDINAL)(CARDINAL ) of ORG Act ( Arbeitnehmer\u00fcberlassungsgesetz ) provides that an employer who , on a commercial basis ( gewerbsm\u00e4\u00dfig ) , intends to hire out his employees to third persons - hiring employers ( Entleiher ) - must obtain official permission . Section CARDINAL(CARDINAL)(CARDINAL ) provides that contracts between the hirer - out ( Verleiher ) and the hiring employer and between the hirer - out and the employee hired out ( Leiharbeitnehmer ) are void if no official permission has been obtained as required by sectionCARDINAL(CARDINAL)(CARDINAL ) . If the contract between a hirer - out and an employee hired out is void under section CARDINAL(CARDINAL)(CARDINAL ) , a contract between the hiring employer and the employee hired out is deemed to have been concluded ( gilt als zustande gekommen ) as from the envisaged start of employment ( sectionCARDINAL(CARDINAL)(CARDINAL)(CARDINAL ) ) . Section PERSON ) further provides for a claim in damages against the hirer - out in respect of any loss suffered as a consequence of having relied on the validity of the contract , except where the employee hired out was aware of the factor rendering the contract void .","Sections DATE of LAW ( Gerichtsverfassungs - gesetz ) regulate immunity from jurisdiction ( GPE ) in NORP court proceedings . PERSON andCARDINAL concern the members of diplomatic and consular missions , and section CARDINAL(CARDINAL ) other representatives of GPE staying in GPE upon the invitation of ORG . ORG ) provides that other persons shall have immunity from jurisdiction according to the rules of general international law , or pursuant to international agreements or other legal rules .","LAW came into force on DATE , when GPE , members of ORG or ORG , had signed it and had deposited their instruments of ratification or acceptance .","The purpose of ORG is to provide for and to promote , for exclusively peaceful purposes , cooperation among GPE in space research and technology and their space applications , with a view to their being used for scientific purposes and for operational space applications systems ( Article II of LAW ) . For the execution of the programmes entrusted to it , the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and , to this end , shall establish and operate such establishments and facilities as are required for its activities ( LAW ( a ) ) .","Article ORG regulates the legal status , privileges and immunities of the Agency . According to paragraph CARDINAL , the ORG shall have legal personality . Paragraph CARDINAL provides that the ORG , its staff members and experts , and the representatives of its member GPE , shall enjoy the legal capacity , privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the ORG and the establishments set up in accordance with LAW shall be concluded between the ORG and the member GPE on whose territory the headquarters and the establishments are situated ( LAW ) .","Article ORG concerns the arbitration procedure in case of disputes between CARDINAL or more member GPE , or between any of them and ORG , concerning the interpretation or application of LAW or its annexes , and disputes arising out of damage caused by ORG , or involving any other responsibility of ORG ( LAW I ) , which are not settled by or through the ORG .","Article ORG provides that on the date of entry into force of ORG shall take over all the rights and obligations of ESRO .","Annex I relates to the privileges and immunities of the ORG .","According to LAW , the Agency shall have legal personality , in particular the capacity to contract , to acquire and to dispose of movable and immovable property , and to be a party to legal proceedings .","Pursuant to LAW ( a ) of ORG I , the ORG shall have immunity from jurisdiction and execution , except to the extent that it shall , by decision of the ORG , have expressly waived such immunity in a particular case ; the ORG has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the ORG .","Article ORG of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with LAW . Moreover , any member ORG may submit to ORG referred to in LAW any dispute , inter alia , arising out of damage caused by the ORG , or involving any other non - contractual responsibility of the ORG . According to ArticleXXVII of AnnexI , the ORG shall make suitable provision for the satisfactory settlement of disputes arising between the ORG and the Director General , staff members or experts in respect of their conditions of service .","Chapter VIII of ORG CARDINAL to CARDINAL ) concerns disputes within ORG . As regards the competence of its ORG , Regulation CARDINAL provides as follows :","\u201c CARDINAL.CARDINAL There shall be set up ORG , independent of the ORG , to hear disputes relating to any explicit or implicit decision taken by the ORG and arising between it and a staff member , a former staff member or persons entitled under him .","CARDINAL ORG shall rescind any decision against which there has been an appeal if the decision is contrary to ORG or to the claimant \u2019s terms of appointment or vested rights ; and if the claimant \u2019s personal interests are affected .","CARDINAL ORG may also order the ORG to repair any damage suffered by the claimant as a result of the decision referred to in paragraph CARDINAL above .","CARDINAL NORP Should the Agency DATE or the claimant \u2013 maintain that execution of a rescinding decision would raise major difficulties ORG may , if it considers the argument valid , award compensation to the claimant for the damage he has suffered .","CARDINAL The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General \u2019s refusal to waive the immunity of the latter .","CARDINAL The Appeals Board shall also be competent to settle disputes concerning its jurisdiction , as defined in these ORG , or any question of procedure . \u201d","The Agreement was concluded between the Government of GPE and ESRO for the purpose of establishing ORG , including ORG . CARDINAL of the Agreement concern the site for construction of the ORG buildings and related matters .","Part III of the Agreement contains general provisions . Article CARDINAL provides as follows :","\u201c CARDINAL . Subject to the provisions of LAW and of any complementary Agreement between GPE and the ORG according to LAW , the activities of ORG shall be governed by NORP law . If the terms of employment of a staff member of the Organisation are not governed by the ORG \u2019s staff regulations , then they shall be subject to NORP laws and regulations .","Disputes between the ORG and such staff members of ORG who are not within the competence of ORG , shall be subject to NORP jurisdiction . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23209","languageisocode":"ENG","respondent":"NOR","branch":"ADMISSIBILITY","date":2003,"docname":"P4 RADIO HELE NORGE ASA v. NORWAY","importance":1,"conclusion":"Inadmissible","judges":"Georg Ress;Mark Villiger","text":["The applicant , ORG ( hereinafter referred to as PCARDINAL ) , is a radio broadcasting company established in GPE . The applicant company is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .","On DATE PCARDINAL applied for authorisation to radiobroadcast , in whole or in part , the main hearing ( hovedforhandling ) in a major criminal trial concerning charges against CARDINAL persons of triple murder , the so - called ORG case , scheduled to take place before ORG ( herredsrett ) as from DATE . According to the applicant , this was probably the most spectacular and media - focused criminal case in NORP history . The case involved a son and his wife , the wife \u2019s CARDINAL - sister and a friend of the latter , who were charged with the murder of the son \u2019s parents and sister , committed in a particularly brutal manner .","The district court judge ( sorenskriveren ) , who received the application on DATE , replied by fax :","\u201c APPLICATION FOR BROADCASTING","The PERSON case","Hereby rejected","Nobody is granted such permission \u201d","The above decision was taken under section CARDINALA ( in its version as applicable at the relevant time ) of ORG Act DATE ( domstolloven ) .","PCARDINAL appealed against this decision to ORG ( lagmannsrett ) and requested it to quash ORG refusal to broadcast and to give a new decision . The applicant maintained that there was no justification for refusing radio broadcasting from the ORG opening statements and closing arguments and from the delivery of verdict .","On DATE ORG dismissed ( avviste ) the appeal . In so far the procedure was concerned , it found no error which warranted setting aside the refusal . Regarding the substance of the decision , it held that this was a matter which by its very nature could not form the subject of an appeal ( uangripelig ) . ORG added incidentally that , notwithstanding this limitation on its own jurisdiction , it did not find that the disputed refusal conflicted with either the LAW provisions concerning the public character of judicial proceedings or those on freedom of expression .","On DATE ORG of the ORG unanimously rejected an appeal by PCARDINAL against the High Court \u2019s decision . The ORG \u2019s reasoning could be summarised as follows .","The ORG noted the absence , in section CARDINAL ( incorporating the provision of section CARDINAL according to an amendment in DATE , which had not yet entered into force ) of ORG Act DATE , of an express provision on the right to appeal against a refusal to broadcast , unlike sections CARDINAL and CARDINAL concerning respectively prohibition on reporting from judicial proceedings ( referatforbud ) and publication of judicial decisions . This suggested that section CARDINAL decisions were not intended to be open to appeal . However , the ORG did not find it necessary to consider the applicant \u2019s argument that a right of appeal would follow from LAW ( straffeprosessloven ) , since such a right could in any event follow from the fact that it had been claimed that a LAW right had been violated . In this connection the ORG mentioned the provisions of LAW on the precedence of international human rights conventions over domestic law and LAW right to an effective remedy for \u201c arguable claims \u201d of violation . The ORG noted a decision by the former Commission ( PERSON and Others v. GPE , application no . DATE ) , which concerned complaints by CARDINAL journalist under Articles CARDINAL and CARDINAL of the Convention about judicial orders to prohibit reporting and to hear a case in camera , rejected as manifestly ill - founded . It was found that the interference was justified for the purposes of LAW and that , absent an arguable claim of violation , LAW did not apply . The ORG further observed that the \u201c arguable claim \u201d criterion had been criticised in legal theory and pointed out that the condition for lodging an appeal under NORP procedural law was that the appellant \u2019s claim of violation did not appear entirely unfounded .","As regards the decision under challenge , the ORG , noting that ORG had dismissed the appeal on jurisdictional ground , quoted its findings on the merits and upheld those findings . As regards the latter aspect , the ORG observed :","\u201c The ORG agrees with what has been stated by ORG and points to the fact that the principle of publicity in LAW is to ensure democratic control of the courts , not the right of the public to receive information , and that the principle is preserved by the provisions on public hearing and the freedom to report in ... ORG . The ORG can not see that the prohibition in section CARDINALA , first paragraph , of the LAW on , inter alia , recording for radio transmission from the proceedings in a criminal case infringes the right to receive and impart information under LAW . It is recalled that the media are not excluded from , or imposed a duty of silence about , the proceedings . The ORG finds no support in the ORG \u2019s or the [ former ] Commission \u2019s case - law for interpreting the right to freedom of expression to mean that there is a right to record from criminal proceedings with a view to radio - or television broadcasting . At last , it should be noted that , under section CARDINAL , second paragraph , a derogation from the prohibition in the first paragraph may be made during the main hearing where there are special reasons and after having heard the views of the parties . \u201d","In the meantime , on DATE the trial started before ORG . It was held in open court . Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives , special arrangements were made enabling the press to follow the trial at a press centre , set up in a sports hall , to which sound and picture were transmitted live and shown on a television screen .","Section CARDINAL , as in force at the material time , of ORG Act DATE ( domstolloven ) provided :","\u201c During oral proceedings in a criminal case , photographing , filming and radio - or television recordings are prohibited . It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to , or from , the hearing or when he or she is staying inside the building in which the hearing takes place , without his or her consent .","If there are special reasons for doing so , the court may in the course of the proceedings make an exception from the [ above ] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so . Before authorisation is given the parties should have an opportunity to express their views . \u201d","LAW ( straffeprosessloven ) reads :","\u201c An interlocutory appeal may be brought against a court order or decision by any person who is affected thereby unless it may form the subject of an appeal proper or may serve as a ground for such an appeal by the said person , or by reason of its nature or a specific statutory provision is unchallengable . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68938","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2005,"docname":"CASE OF A.L. v. GERMANY","importance":3,"conclusion":"No violation of Art. 6-2","judges":"","text":["The applicant was born in DATE and lives in GPE . He used to run a car rental business .","On DATE ORG informed him that it had begun criminal investigations against him and CARDINAL other persons on the suspicion of insurance fraud . They were suspected of having obtained reimbursement for non - existent car rental costs and of having requested payment for non - refundable kilometres .","On DATE , following ORG arrest warrant , the applicant was arrested on the suspicion that he would attempt to hinder the investigation proceedings ( PERSON ) .","On DATE ORG suspended the execution of the arrest warrant on the condition that the applicant cease to have contact with his co - suspects and any of the witnesses involved .","On DATE the applicant and his co - suspects were indicted for fraud .","On DATE ORG revoked the arrest warrant .","On DATE ORG provisionally discontinued proceedings with the applicant 's consent pursuant to LAW \u00a7 CARDINAL of LAW ( see relevant domestic law below ) on the condition that the applicant pay a sum of CARDINAL ORG to ORG ( ORG ) .","On DATE , after the applicant had fulfilled this condition , ORG , sitting as a chamber of CARDINAL judges , permanently discontinued proceedings against the applicant but refused to grant him compensation for the time spent in detention on remand , finding that such compensation would not be equitable ( entspricht nicht der Billigkeit ) , in particular as the applicant had waived any right to compensation .","NORP The applicant appealed against this decision , arguing that he had never waived his right to compensation and that compensation would be equitable , as the criminal proceedings had caused him to lose his source of income and had prevented him from finishing his law studies .","By letter to the applicant 's counsel of CARDINAL DATE , the presiding judge of the competent chamber of ORG confirmed that if the proceedings had been pursued , ORG would have opened proceedings against the applicant with regard to parts of the indictment . The applicant would then have been convicted with predominant probability ( \u201c GPE war auch mit bei weitem \u00fcberwiegender PERSON zu rechnen \u201d ) . In CARDINAL of the cases of fraud , this predominant probability was based on the submissions of another accused and of a former suspect . In another case , a conviction for fraud was to be expected following the submission of various car rental receipts ( \u201c ... war schon i m Hinblick auf die LOC diversen FAC wegen PERSON rechnen \u201d ) .","On DATE the GPE \/ ORG rejected the applicant 's appeal . It noted that granting compensation for prosecution measures lay within the discretion of the competent courts or prosecuting offices . The relevant LAW ( ORG \u00fcber die PERSON f\u00fcr Strafverfolgungs- massnahmen , see relevant domestic law below ) was to be seen as an exception to the rule - according to this provision , compensation should be granted in special cases where the execution of provisional prosecution measures was considered to be grossly disproportionate ( \u201c grob unverh\u00e4ltnism\u00e4ssig \u201d ) . This did not apply to the case against the applicant .","ORG noted that the measures of prosecution instituted against the applicant were originally based on a strong suspicion ( dringender Verdacht ) . If the proceedings had continued , ORG would have opened proceedings against the applicant regarding a certain part of the indictment . ORG found that taking into account a remaining suspicion ( \u201c verbleibender NORP \u201d ) when deciding on compensation was not in violation of the right to the presumption of innocence under LAW , as it did not involve the establishment or allocation of guilt , but only constituted an admissible and necessary evaluation of the situation . Legal consequences of a non - punitive character , such as the refusal of compensation for prosecution measures , may be linked to such a remaining suspicion . This remaining suspicion , which ORG took into account when deciding on compensation , was only relevant with regard to the question of whether to open proceedings and of whether the public interest in further prosecution could be overcome . It was not relevant with regard to the actual question of guilt or the probability of a conviction .","On DATE ORG refused to entertain the applicant 's complaint against the court decisions and the letter of ORG , finding that the principle of the presumption of innocence did not prevent the establishment and assessment of a remaining suspicion in a decision on the discontinuance of criminal proceedings before a conviction has taken place . It thus also did not prevent courts or prosecuting offices from taking this remaining suspicion into account when deciding on compensation .","The presumption of innocence prohibits imposing sanctions with a punitive or de facto punitive effect on an accused whose guilt has not been established in the relevant criminal proceedings . However , in a decision on the discontinuance of proceedings , legal consequences of a non - punitive character may be linked to a remaining suspicion , but it must become sufficiently clear from its reasoning that this does not occur out of the intention to establish or allocate guilt , but out of the intention to describe and assess the state of suspicion ( PERSON ) . This distinction had to be sufficiently expressed in the decision 's reasons . In this respect , the context of all the given reasons had to be taken into account .","In the light of the above principles , ORG found that the impugned decisions were compatible with LAW . It noted that ORG had refused to grant the applicant compensation under LAW on the ground that if the proceedings against the applicant had been pursued , ORG would have opened court proceedings against the applicant based on parts of the indictment . This evaluation of the remaining suspicion with regard to the question of the opening of proceedings and overcoming the public interest in pursuing prosecution measures neither contained a declaration on the probability of the applicant 's conviction , nor did it contain a criminal allocation of guilt .","According to LAW , criminal proceedings involving a less serious criminal offence ( PERSON ) may be discontinued subject to certain conditions and instructions ( PERSON ) .","If the proceedings are still in the investigation phase , ORG may , with the consent of the competent court and the accused , provisionally refrain from issuing an indictment relating to an offence and may at the same time order the accused ( CARDINAL ) to take measures providing reparation , ( CARDINAL ) to pay a sum of money to a charitable association or the ORG , ( CARDINAL ) to take other measures or ( CARDINAL ) to make maintenance payments of a particular amount , if such conditions and instructions can remove the public interest in prosecution and if this is not in conflict with the seriousness of the crime ( \u201c ... PERSON , das \u00f6ffentliche ORG an der Strafverfolgung zu beseitigen , und die Schwere der Schuld nicht entgegensteht \u201d ) ( LAW ) .","If the accused has already been indicted , the court may , with the consent of both the public prosecutor 's office and the accused , discontinue the proceedings and impose the same conditions and instructions ( Section CARDINALa \u00a7 CARDINAL ) .","Compensation for various prosecution measures is covered by LAW ( PERSON \u00fcber die PERSON f\u00fcr GPE ) .","In cases where an accused is acquitted or where the proceedings against him are discontinued or where a court refuses to open the proceedings against him , he is entitled to compensation for damages suffered due to time spent in detention on remand or due to other prosecution measures ( Section CARDINAL ) .","NORP If the discontinuation of the proceedings is subject to the discretion of the prosecutor '","According to the case - law of ORG , cases where the proceedings have been discontinued according to LAW also fall under the scope of the above regulations ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-2"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57904","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1994,"docname":"CASE OF KROON AND OTHERS v. THE NETHERLANDS","importance":2,"conclusion":"Violation of Art. 8;No separate issue under Art. 14+8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Luzius Wildhaber;Paul Mahoney","text":["ORG The first applicant , PERSON , is a GPE national born in DATE . The second applicant , PERSON , born in DATE , was a NORP national at the time of the events complained of ; he subsequently obtained GPE nationality . Although they were not living together at the time , they had a stable relationship from which the third applicant , PERSON , was born in DATE ; he has both NORP and GPE nationality . All CARDINAL applicants live in GPE .","ORG In DATE , PERSON had married Mr PERSON M\u2019Hallem - Driss , a NORP national .","The marriage broke down towards DATE . Thereafter , PERSON lived apart from her husband and lost contact with him . It appears from official records that he left GPE in DATE and his whereabouts have remained unknown ever since .","PERSON was born on DATE . He was entered in the register of births as the son of PERSON and Mr M\u2019Hallem - Driss .","PERSON instituted divorce proceedings in ORG ( arrondissementsrechtbank ) DATE after PERSON \u2019s birth . The action was not defended and the divorce became final when ORG judgment was entered in the register of marriages on DATE .","ORG On DATE , relying on section CARDINAL ( CARDINAL ) of LAW ( PERSON CC \" - see paragraph CARDINAL below ) , PERSON and Mr PERSON requested the GPE registrar of births , deaths and marriages ( ambtenaar van de burgerlijke stand ) to allow PERSON to make a statement before him to the effect that Mr M\u2019Hallem - PERSON was not PERSON \u2019s father and thus make it possible for PERSON to recognise the child as his .","The registrar refused this request on DATE . While expressing sympathy , he noted that PERSON had been born while PERSON was still married to Mr M\u2019Hallem - Driss , so that unless the latter brought proceedings to deny paternity ( see paragraphs CARDINAL and DATE below ) recognition by another man was impossible under GPE law as it stood .","ORG On DATE PERSON and Mr PERSON applied to ORG for an order directing the registrar to add to the register of births PERSON statement that Mr M\u2019Hallem - Driss was not PERSON \u2019s father and with PERSON recognition of PERSON . They relied on LAW article CARDINAL) of the LAW , taken both alone and together with LAW ) , pointing out that while it would have been possible for PERSON former husband to deny the paternity of PERSON , it was not possible for her to deny her former husband \u2019s paternity of the child .","ORG refused this request on DATE . It held that in spite of the justified wish of PERSON and PERSON to have biological realities officially recognised , their request had to be refused since , under the law as it stood , PERSON was the legitimate child of Mr M\u2019Hallem - Driss . There were only limited exceptions to the rule that the husband of the mother was presumed to be the father of a child born in wedlock . This was justified in the interests of legal certainty , which were of great importance in this field , and by the need to protect the rights and freedoms of others . The law as it stood was therefore not incompatible with Articles CARDINAL and CARDINAL ( article CARDINAL , article DATE ) of the Convention .","ORG Relying again on Articles DATE and CARDINAL ( article CARDINAL , article DATE ) , PERSON and Mr PERSON appealed to ORG ( gerechtshof ) .","ORG rejected the appeal on CARDINAL DATE . It held that LAW article CARDINAL) was applicable but had not been violated . The restrictions imposed on the mother \u2019s right to deny the paternity of her husband satisfied the requirements of Article CARDINAL para . CARDINAL ( article LAW ) . There had , however , been a violation of LAW taken together with LAW ) , since there was no sound reason for the difference of treatment which the law established between husband and wife by not granting the latter the possibility , available to the former , of denying the husband \u2019s paternity . Nevertheless the appeal could not be allowed ; it was not open to the court to grant the ORG request , as that would require the creation of new GPE law , including administrative procedure , and would therefore go beyond the limits of the judiciary \u2019s powers to develop the law . Only the legislature could decide how best to comply with LAW as regards the possibility of denying paternity of a child born in wedlock .","PERSON and Mr PERSON then lodged an appeal on points of law with ORG ( PERSON ) .","They argued , firstly , that ORG had violated LAW article CARDINAL) of the LAW by holding that the limitations imposed by section PERSON on the mother \u2019s possibility of denying her husband \u2019s paternity - more particularly the fact that she might do so only in respect of a child born after the dissolution of the marriage - satisfied the requirements of Article CARDINAL para . CARDINAL ( article LAW ) . ORG had not properly weighed up the interests involved . It ought to have considered the relative weight of , on the one hand , the interests of the biological father and his child and , on the other , the interests protected by the legislation . ORG should have given priority to the former interests , which in the case before it were best served by severing the legal ties between PERSON and Mr M\u2019Hallem - Driss and establishing such ties between PERSON and PERSON , who were entitled , under LAW article CARDINAL) of the LAW , to have their family relationship recognised .","In addition , they suggested that it followed from ORG finding of a violation of LAW ) that the interference concerned could not under any circumstances be covered by LAW CARDINAL ( article LAW ) .","Secondly , they argued that , by holding that it was not empowered to grant the ORG request as that would require the creation of new GPE law , ORG had violated Articles DATE and CARDINAL ( article DATE ) taken together . In the applicants\u2019 submission , there was no reason to consider that only the legislature was able to remove the discrimination which ORG had rightly found to exist ; it was sufficient to disregard the requirement that the child must have been born after the dissolution of the mother \u2019s marriage .","ORG Following the advisory opinion of ORG , ORG rejected the appeal on DATE .","ORG did not rule on the question whether section PERSON violated Article CARDINAL ( article CARDINAL) , or Article CARDINAL taken together with Article CARDINAL ( article DATE ) . It considered that it was not necessary to do so , because it agreed with ORG that , even if there had been such a violation , solving the problem of what should replace section PERSON went beyond the limits of the judiciary \u2019s powers to develop the law . This finding was based on the following reasoning :","\" In this connection , it should not be overlooked that if a possibility were to be created for the mother to deny [ her husband \u2019s ] paternity [ of a child born ] during marriage , the question would immediately arise as to what other limitations should apply in order not to jeopardise the child \u2019s interest in certainty regarding its descent from its legitimate parents , which interest the child generally has and which is part of the basis for the present system . Such limitations have therefore also been written into LAW ( Wetsvoorstel PERSON ; PERSON van de ORG to ORG of ORG - , DATE , DATE , sections CARDINAL et seq . ) , which is now before ORG ... [ I]t is not certain whether [ these limitations ] will be retained , added to or withdrawn in the course of the further parliamentary discussion , many variations being conceivable , regard also being had to the need to ensure equal treatment of the father and the mother , in so far , at any rate , that unequal treatment is not justified . \"","The judgment of ORG was reported in PERSON ( GPE Law Reports - \" GPE \" ) , DATE , CARDINAL .","ORG CARDINAL more children were born to PERSON and Mr PERSON after the birth of PERSON : a daughter , PERSON , in DATE and twins , PERSON and PERSON , in DATE . They were all recognised by PERSON .","PERSON and Mr PERSON do not cohabit . The applicants claim , however , that Mr PERSON contributes to the care and upbringing of their children .","ORG Every municipality has a separate register for births ( section CARDINAL:CARDINAL ( CARDINAL ) ORG ) ; this is kept by CARDINAL or more registrars of births , deaths and marriages ( section CARDINAL:CARDINAL ( CARDINAL ) ) .","An entry in the register of births , or birth certificate , mentions the mother \u2019s husband as the father if the mother was married at the time of the birth or within a period of CARDINAL DATE immediately preceding the birth ; in all other cases , the name of the father is mentioned only if he recognises the child before or at the time the entry is made ( section CARDINAL:CARDINAL ( CARDINAL ) ( c ) ORG ) .","ORG An interested party or the public prosecutor ( officier van justitie ) can apply to ORG within the jurisdiction of which the register in question is located for an order to correct or add to the register of births . ORG decision is forwarded to the registrar of births , deaths and marriages ; the correction or addition is made in the form of a note in the margin or at the foot of the certificate ( section CARDINAL:CARDINAL ( CARDINAL)-(CARDINAL ) ORG ) .","Section CARDINAL:CARDINAL CC reads as follows :","\" The husband shall be the father of a child born in wedlock . Where a child is born before the GPE DATE following dissolution of the marriage , the former husband shall be its father , unless the mother has remarried . \"","ORG thus creates CARDINAL legal presumptions . Firstly , a child born during marriage is presumed to be the issue of the mother \u2019s husband ; secondly , a child born before the GPE day following the dissolution of the mother \u2019s marriage is presumed to be the progeny of the mother \u2019s former husband . The first presumption may be rebutted only by the mother \u2019s husband , who to that end must provide proof to the contrary ( sections CARDINAL GPE - see paragraph CARDINAL below ) . The second presumption may be rebutted by either the mother or her former husband ; the mother \u2019s former husband will , however , have to adduce proof , whereas for the mother a statement is sufficient ( section CARDINAL:CARDINAL CC - see following paragraph ) .","ORG Section CARDINAL:CARDINAL CC reads as follows :","\" CARDINAL . ORG The mother may deny that a child born to her within DATE following the dissolution of the marriage is the child of her former husband by making a statement to that effect before the registrar of births , deaths and marriages , provided that another man recognises the child by the instrument in which that statement is recorded ...","ORG The mother \u2019s statement and the recognition must take place within DATE of the child \u2019s birth .","ORG The [ mother \u2019s ] statement and the recognition shall take effect only if the mother and the man who recognises the child marry each other within DATE of the birth of the child ... CARDINAL . ORG If a judgment annulling the recognition in an action brought by the former husband becomes final , the mother \u2019s statement shall also lose its force .","ORG ... \"","ORG In its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) , ORG deprived section PERSON ( CARDINAL ) ORG of its effect .","In the case in question - in which a child had been born within DATE of the dissolution of its mother \u2019s marriage - it was established , firstly , that there was a relationship between the child and its biological father which qualified as \" family life \" for the purposes of LAW article CARDINAL) of the LAW and , secondly , that the mother and the biological father , who did not wish to marry , wanted the paternity of the mother \u2019s former husband to be denied and the child to be recognised by its biological father .","ORG found that section PERSON ( CARDINAL ) ORG constituted an \" interference \" within the meaning of LAW article CARDINAL) , since it obstructed the formation of legally recognised family ties unless the mother and the biological father got married .","In deciding whether such interference was permissible under the terms of LAW para . CARDINAL ( article LAW ) , ORG noted that when section PERSON ( CARDINAL ) ORG had been enacted it was considered more important to protect a child from being deprived of its \" legitimate \" status than to enable it to establish ties with its biological father . Since then , however , the relative importance of these CARDINAL opposing interests had changed ; in particular , following the judgment of ORG in the ORG v. GPE case ( DATE , Series A no . CARDINAL ) , legal differences between \" legitimate \" and \" illegitimate \" children had to a large extent disappeared . In view of these developments , it could no longer be said that in cases where , for the purposes of LAW article CARDINAL) of the LAW , there was a relationship between the child and its biological father amounting to \" family life \" , the importance of maintaining a child \u2019s \" legitimate \" status overrode the interest protected by section PERSON ( CARDINAL ) ORG .","ORG Section CARDINAL ORG reads as follows :","\" The husband can only deny paternity of the child by bringing an action to this end against the mother as well as against the child , which , unless it has come of age , shall be represented in the proceedings by a guardian ad litem appointed for that purpose by ORG ( kantonrechter ) . \"","Section CARDINAL:CARDINAL ORG reads :","\" CARDINAL . ORG The court shall allow the action to deny paternity if the husband can not be the father of the child .","ORG If during the period in which the child was conceived the husband did not have intercourse with the mother , or if they lived apart during that time , the court shall also declare the action to deny paternity well - founded , unless facts are established which make it appear possible that the husband is the father of the child . \"","Such proceedings must be brought within DATE from DATE on which the father became aware of the fact that the child had been born ; however , if the mother has made a statement of the kind provided for in section PERSON ( see paragraph CARDINAL above ) , this time - limit does not expire until DATE after the birth of the child ( section CARDINAL:CARDINAL CC ) .","ORG According to section PERSON , legitimacy is proved by a person \u2019s parentage ( afstamming ) and the marriage of his or her parents . If there is no birth certificate , the parentage of a \" legitimate \" child is proved by the undisturbed possession of the status of \" legitimate \" child .","Section CARDINAL:CARDINAL ( CARDINAL ) ORG reads as follows :","\" An illegitimate child has the status of natural child ( natuurlijk kind ) of its mother . Upon recognition it acquires the status of natural child of its father . \"","Section CARDINAL:CARDINAL CC reads as follows :","\" An illegitimate child and its descendants have legally recognised family ties ( familierechtelijke betrekkingen ) with the child \u2019s mother and her blood relations and , after the child has been recognised , also with the father and his blood relations . \"","Section CARDINAL:CARDINAL CC reads as follows :","\" ORG may be effected : ( a ) ORG on the child \u2019s birth certificate ; ( b ) ORG by an instrument of recognition drawn up by a registrar of births , deaths and marriages ; ( c ) ORG by any notarial deed ( notari\u00eble akte ) . \"","There is no requirement that the man recognising an \" illegitimate \" child should be the biological father . Moreover , it is not possible for a man to recognise a \" legitimate \" child , even if he is the biological father .","ORG under section PERSON ( see paragraph CARDINAL above ) may be annulled on application by the mother \u2019s former husband if the man who has recognised the child is not the child \u2019s biological father ( section CARDINAL:CARDINAL para . CARDINAL ORG ) .","ORG Section CARDINAL:CARDINAL ORG reads as follows :","\" CARDINAL . Adoption is effected by a decision of ORG at the request of a married couple who wish to adopt a child .","ORG The request can only be granted if the adoption is in the apparent best interests of the child , as regards both breaking the ties with the [ natural ] parents and reinforcing the ties with the adoptive parents , or - in the case of adoption of a legitimate or natural child of CARDINAL of the adoptive parents - as regards both breaking the ties with the other parent and reinforcing the ties with the stepparent , and provided that the conditions laid down in the following section are satisfied .","ORG ...","ORG ... \"","Section CARDINAL:CARDINAL ORG reads as follows :","\" CARDINAL . Adoption shall be subject to the following conditions :","( a ) ...","( b ) ORG that the child is not the legitimate or natural child of a legitimate or natural child of one of its adoptive parents ;","( c ) ORG that neither adoptive parent is CARDINAL or DATE older than the child ;","( d ) ORG that the request is not opposed by a parent or the parents with legally recognised family ties with the child . Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned DATE previously to be heard on the occasion of a similar request by the same couple that was refused , although the conditions laid down in paragraphs ( e ) to ( g ) below were satisfied ;","( e ) ...","( f ) ...","( g ) ORG that the adoptive parents were married DATE before DATE the request was filed .","ORG In the case of adoption of a legitimate or natural child of one of the adoptive parents , the conditions set forth in paragraphs ( c ) and ( g ) of the preceding subsection shall not apply . In the case of adoption of a legitimate child of one of the adoptive parents , the condition specified in paragraph ( d ) shall be replaced by the condition that the former spouse , whose marriage with the spouse of the stepparent has been terminated [ by divorce or dissolution of the marriage after judicial separation ] , if he or she has legally recognised family ties with the child , does not oppose the request .","ORG ... \"","Section CARDINAL:CARDINAL ( CARDINAL ) ORG reads as follows :","\" By adoption the adopted person acquires the status of legitimate child of the adoptive parents . However , if the adopted person already had the status of legitimate child of one of the spouses who adopted him or her , he or she shall retain it and by adoption acquire the status of legitimate child of the other spouse . \""],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93750","languageisocode":"ENG","respondent":"GEO","branch":"CHAMBER","date":2009,"docname":"CASE OF KVITSIANI v. GEORGIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and currently lives in GPE .","In the course of a police operation conducted on DATE in the village of GPE , GPE , the applicant \u2019s house , which happened to be close to the scene , was accidentally burned down together with the adjacent farm buildings . The house had been the applicant \u2019s place of residence prior to the incident .","On DATE the applicant sued ORG and ORG for the damage done and , in a judgment of DATE , the FAC in GPE ordered the respondent authorities to pay him CARDINAL NORP laris ( GEL ) ( MONEY ( ORG ) ) in compensation for the destruction of his property ( \u201c the judgment debt \u201d ) . The operative part of the judgment indicated that the payment should be made from ORG for DATE .","The judgment of DATE was upheld in full by ORG and ORG of GPE on DATE and DATE , respectively , and became binding on DATE .","On DATE the Krtsanisi - Mtatsminda District Court issued the respondent authorities with a writ of execution which reiterated the obligation to discharge the judgment debt from the DATE ORG . The authorities remained inactive .","Subsequent to the applicant \u2019s complaint , on DATE ORG of ORG ( \u201c the ORG \u201d ) invited the respondent authorities to discharge the judgment debt of their own accord within DATE , on pain of forcible enforcement measures . The allotted time expired without the judgment debt having been paid , but no measures followed .","On DATE ORG issued ORG with an order to pay the judgment debt . However , as that order indicated the wrong amount , ORG sent it back on DATE unenforced .","On DATE the applicant asked ORG for news of progress in the enforcement proceedings .","On DATE ORG replied that it was unable to discharge the judgment debt , as ORG had failed to do so of its own accord .","In a decision of DATE , at the applicant \u2019s request , ORG removed from the judgment of DATE , as an objectively unenforceable condition , the indication that the debt should be paid from the DATE ORG . That decision became binding on CARDINAL DATE , and on DATE ORG issued a writ for its enforcement .","On DATE , on the basis of the previous enforcement writ of DATE , ORG requested ORG to disburse the judgment debt . The latter authority did so on DATE , and DATE the applicant retrieved the debt in full .","The relevant legal provisions concerning the conduct of enforcement proceedings against a public agency funded from ORG were cited in the case of ORG and ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINALVIII ) ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-68067","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF MAYZIT v. RUSSIA","importance":3,"conclusion":"Violation of Art. 3;Violation of Art. 5-4;No violation of Art. 6-3-c;No violation of Art. 6-3-b;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE the investigating authorities of ORG of FAC opened a criminal investigation based on a complaint by Mr. PERSON who alleged that the applicant had shot at his windows with a hunting rifle in revenge for an unpaid debt . Following Mr. PERSON \u2019s second complaint on DATE concerning a similar incident , a second investigation was opened and joined with the first .","It appears that these investigations led to the applicant \u2019s arrest on CARDINAL DATE . Following interrogations , he was detained on DATE under suspicion of having committed a crime under Sections CARDINAL \u00a7 CARDINAL and QUANTITY of LAW of GPE which concerns intentional destruction of , or damage to , property and hooliganism and which carries a sentence of DATE imprisonment .","The following day , DATE , the applicant was released under his written undertaking not to leave the town as a measure of restraint .","On DATE the prosecution authorities forwarded the case - file and an indictment to ORG of FAC for examination and trial . However , on DATE the court remitted the case for further investigations . During these subsequent investigations the authorities issued , on DATE , an arrest warrant against the applicant as he had on a number of occasions failed to attend for interrogation . The applicant was arrested on DATE and remained in detention until DATE when ORG ordered his release , finding the alleged risk of the applicant absconding unsubstantiated .","NORP In the meantime , on DATE , the resumed investigations had been brought to an end and the case - file sent , once more , to ORG for adjudication . However , on DATE ORG ordered further investigation to be carried out . In the course of this investigation , on DATE , the authorities anew ordered the applicant \u2019s arrest and detention on the basis that the applicant had changed his residence , failed to appear for interrogations and hampered the proceedings . On DATE an arrest warrant was issued and on DATE the applicant was arrested and detained on remand in the ORG of GPE .","According to the report issued by the Chief Prison Directorate of the Ministry of Justice , submitted by the ORG , the applicant stayed at the Remand Centre IZ-CARDINAL\/CARDINAL from DATE until DATE and from CARDINAL DATE until DATE . He was kept in CARDINAL different cells described as follows : cell no . CARDINAL ( CARDINAL m\u00b2 of surface , CARDINAL bunks , the sanitary conditions satisfactory ) ; cell no . CARDINAL ( CARDINAL m\u00b2 of surface , CARDINAL bunks , the sanitary conditions satisfactory ) ; cell no . CARDINAL ( CARDINAL m\u00b2 of surface , CARDINAL bunks , the sanitary conditions satisfactory ) ; cell CARDINAL , CARDINAL , DATE ( CARDINAL m\u00b2 of surface for each cell , CARDINAL bunks , the sanitary conditions of each of the cells satisfactory ) . It appears from the report that the sanitary and technical conditions of the cells in which the applicant was held were monitored on a regular basis .","In accordance with LAW of LAW on detention the applicant was allowed DATE walks for not TIME .","According to a letter from the Head of ORG for GPE , submitted by the Government , the applicant was on admission to the remand centre examined by the general practitioner , the dermatologist , the venerologist and the psychiatrist who found his health to be satisfactory . In the course of a check - up DATE after his arrival , on DATE , post - tuberculosis changes in the upper lobe of the right lung were detected . During the detention the applicant did not make requests for medical assistance , no diseases were detected in the course of routine examination and his state of health was considered to be satisfactory .","Without disputing the size of the cells the applicant submitted that these were dirty and infected with cockroaches , bed - bugs and lice . The DATE inspection did nothing to remedy that . The cells were overcrowded , leaving QUANTITY of surface per person . The detainees were obliged to sleep in turns and the applicant could wash DATE . The windows were covered with steel shutters and let in very little light .","On DATE ORG of ORG dismissed the applicant \u2019s appeal against the ruling of ORG of FAC of DATE .","On DATE the Moskovskiy ORG of Kaliningrad rejected the applicant \u2019s application of DATE for release pending trial .","On DATE a Deputy President of ORG made an application for supervisory review of the decisions of the Moskovskiy District Court of DATE and DATE . The Deputy President alleged that these decisions had been unlawful as far as they had effectively deprived the applicant of his right to obtain a judicial review of his detention .","On DATE the Presidium of ORG granted the application . It set aside the decisions of ORG of DATE and DATE and ordered a fresh examination of the applicant \u2019s application for release . It appears that the applicant did not pursue the case following which the proceedings were terminated .","On DATE , following the completion of the investigation ordered by ORG on DATE ( see \u00a7 CARDINAL above ) , the public prosecutor prepared the indictment and submitted the case to ORG for adjudication . The indictment referred to Sections CARDINAL \u00a7 CARDINAL and QUANTITY of LAW . On DATE the court decided that the applicant should be given time to study the case - file and set the trial to commence on DATE . Due to the seriousness of the charges against the applicant the court appointed a defence counsel . It appears that the applicant refused the appointment of CARDINAL different defence counsels and eventually the court decided to entrust the applicant \u2019s defence to PERSON as the applicant had not suggested any other lawyers . During the trial , on DATE , the applicant requested that he be represented by his mother and his sister . On DATE the court rejected the applicant \u2019s request referring in particular to the fact that the case was complex and that therefore special legal knowledge and professional experience , which his mother and sister did not have , were required . A subsequent request of DATE to be represented by his relatives was likewise rejected .","By judgment of DATE ORG found the applicant guilty of the charges against him and sentenced him to CARDINAL years\u2019 imprisonment . The applicant appealed against the judgment , complaining also that he had not been allowed to choose his legal assistance .","On DATE ORG upheld the judgment . On DATE the ORG of ORG lowered the sentence to CARDINAL years\u2019 imprisonment .","On an unspecified date the applicant filed a supervisory complaint in order to review the domestic courts\u2019 judgment in his case . On DATE the judicial panel on criminal cases of ORG rendered its judgment which in part found in the applicant \u2019s favour . ORG quashed the domestic courts\u2019 judgments in so far as they related to the conviction under LAW of LAW , whereas the remainder of the conviction was upheld . The applicant has been released from prison having served the sentence related to the remaining conviction .","Code of Criminal Procedure of DATE , in force at the material time :","\u201c ... The accused may ... appeal to court against unlawfulness and groundlessness of detention ... \u201d","\u201c DATE be admitted as defenders : an advocate authorised by a bar office ; a representative of a trade union or of another public association ...","Where authorized by a court decision or ruling , close relatives , legal representatives and other persons may be admitted as defenders . \u201d","\u201c A defender \u2019s participation is obligatory in proceedings :","NORP in which a public or private prosecutor is involved ... \u201d","\u201c ... When a prison administration receives a detainee \u2019s [ appeal to a court against pre - trial detention ] , it must pass the [ appeal ] to the relevant court immediately , and , at any rate , not TIME after its receipt , having informed a public prosecutor ...","If the appeal has been lodged via the prison administration , the prosecutor must send [ the documents confirming the lawfulness and validity of the detention as a measure of restraint ] to the court within TIME after receipt of the prison administration \u2019s notification that the person concerned has lodged the appeal ... \u201d","\u201c ... A judge must review the lawfulness of the detention ... within DATE after receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint ... \u201d","LAW of GPE of DATE :","\u201c Everyone has the right to professional legal aid . In cases established by law , legal aid is granted free ... \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-3"],"non_violated_bulletpoints":["6-3-b","6-3-c"],"violated":true}
{"itemid":"001-83870","languageisocode":"ENG","respondent":"CHE","branch":"GRANDCHAMBER","date":2007,"docname":"CASE OF STOLL v. SWITZERLAND","importance":1,"conclusion":"No violation of Art. 10","judges":"Anatoly Kovler;Andr\u00e1s Baka;Antonella Mularoni;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre;J\u00e1n \u0160ikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonp\u00e4\u00e4;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in GPE .","In DATE and DATE negotiations were conducted between , among others , ORG and NORP banks concerning compensation due to Holocaust victims for unclaimed assets deposited in NORP bank accounts .","Against that background PERSON , who was the NORP ambassador to GPE at the time , drew up on DATE a \u201c strategy paper \u201d , classified as \u201c confidential \u201d , which was faxed to PERSON , head of the task force that had been set up to deal with the matter within ORG in GPE . Copies were sent to CARDINAL other individuals in the NORP government and the federal authorities and to the NORP diplomatic missions in GPE , GPE , GPE , GPE and GPE .","Below are some extracts from the document , based on the article \u201c That \u2019s all we need \u201d , which appeared in the Tages - Anzeiger on DATE , DATE after the applicant \u2019s articles were published ( unofficial translation ) :","\u201c Ambassador ,","The campaign against GPE and the huge claims accompanying it , reflected in the activities of the NORP organisations , the statements of NORP politicians and the class actions , will greatly occupy the authorities and public opinion on both sides of the LOC for some time to come ... However , the real reverberations will not be felt until the inquiries which are to be launched have been completed , those claims that are well - founded have been met , the proceedings have been concluded and matters have been put right in historical , political , legal and moral terms . That will take DATE , possibly much longer . Moreover , it is impossible to predict DATE the course of NORP domestic and foreign policy in DATE . In any event , the political , economic and social challenges facing the country internally and the uncertainty surrounding the NORP issue ( the ORG , security , etc . ) and globalisation are already prompting some painful soul - searching by the NORP people .","The comments now coming from GPE are all we need . Suddenly , on top of the present and future uncertainties , we must come to terms with the past . The campaign against GPE , therefore , is being conducted in an already difficult climate ...","All GPE \u2019s efforts are aimed at preserving the country \u2019s integrity , forestalling or at least warding off dangers and maintaining international relations ( in particular with GPE ) during the crisis and beyond while avoiding any lasting damage . All interim goals must be viewed solely in relation to the main objective . Short - lived successes such as \u2018 truces\u2019 , temporarily positive reactions from the media , satisfaction at seeing certain projects put in hand , historical insights which may be favourable to GPE or constructive remarks from our negotiating partners abroad should not blind us to the long - term reality . Individual battles may be important , but ultimately it is the war that GPE must win ...","If we assume that the demands of the NORP organisations and Senator D\u2019Amato must be satisfied as a matter of urgency , and that then calm will be restored , an actual deal might be struck with the organisations concerned . Instead of just making the \u2018 gesture\u2019 currently being speculated on , we could act immediately to resolve the matter by paying a lump sum in order to settle all the claims once and for all . Given that a large number of groups and countries are affected by this issue and that GPE is now being called to account , as it were , by the international community , the plan must have both a national and an international dimension and be based on a long - term strategy . It might look something like this :","\u2013 the measures planned to date ( publication of the expert report on the compensation agreement with the countries of eastern LOC , commencement of the work of the historical commission , inquiries by ORG ) will be effectively implemented by GPE using the necessary resources and within a realistic time frame , with any difficulties being overcome in a determined manner ;","\u2013 the dialogue with all the groups concerned must be continued in a correct and conciliatory manner , without making interim concessions which could jeopardise the entire process ;","\u2013 as far as the activities of foreign governments and parliaments are concerned ( particularly in GPE and GPE ) , the aim should be to bring about courteous bilateral cooperation focusing primarily on establishing the truth and avoiding any polemics . Where necessary , of course , a clear and firm stance should be taken , particularly if GPE is disparaged or accused without absolutely clearcut reasons ;","\u2013 when significant interim findings have been obtained and , especially , when all the inquiries have been completed , negotiations will need to be conducted on the conclusions to be drawn and on how any funds released should be used . These should be conducted at governmental level , either multilaterally , if possible with all the countries concerned ( including the ORG , those countries that were neutral at the time , GPE and GPE ) , bilaterally with GPE ( which would mean giving up a long - standing position and accepting the risk of adverse reactions from the NORP world ) , or with non - governmental organisations . Much will depend on the strategy of our adversaries . However , the issue must be made an international one and other countries must be held to account . GPE , which has set a good example with its inquiries , should assume a leading role and hence seize the initiative ...","It must also be borne in mind that scenarios and strategies are not immune to outside influences and that events may occur or a new trend emerge at any time , calling everything into question or at least requiring considerable flexibility . Accordingly , a mix of action based on international law and interim payments would , if possible , be more realistic . Opting for this kind of mix from the outset would almost inevitably mean taking a pragmatic approach that evolves DATE and scarcely deserves the ambitious description of a \u2018 strategy\u2019 ... GPE can not afford to just muddle through in this matter .","Whatever strategy is chosen , action will be needed on the external front to lend credibility to NORP efforts . This can be done by taking the same \u2013 essentially reactive DATE stance taken hitherto or by adopting a more innovative approach . As part of the latter I would advocate campaigning systematically in political circles and in the media , maintaining ongoing contacts with the NORP administration in order to compare results and refine methods , cultivating relations with the NORP organisations wherever possible in a friendly manner but without servility , and conducting a well - orchestrated public relations campaign including , for instance , seminars and round - table sessions . On the subject of public relations , however , statements should be made only if there is something new to be said and the time and place are right . Pilgrimages abroad are best avoided on tactical grounds and in view of the domestic policy aspects ...","The advantages and drawbacks of the different approaches are fairly obvious . However , it is clear that , from a historical , political and legal perspective , a \u2018 deal\u2019 will never be satisfactory . Ideally , all the same , the legal strategy should be chosen . This places considerable demands on all concerned and calls for initiative , time and energy , to say nothing of the cost . In view of the main objective , however , we would be well advised to change the habit of a DATE and make the necessary funds available without unseemly haggling . Let me repeat : this is a war GPE must wage and win on the external and domestic fronts . Most of our adversaries are not to be trusted . The potential damage to GPE from a boycott or perhaps even legislative action by other countries is immense . Even the figures for our national pension insurance scheme or the cost of the new trans - Alpine rail links , for instance , are liable to look modest by comparison . GPE must present a united and determined front ...","PERSON , NORP Ambassador \u201d","The applicant obtained a copy . It seems clear that he could not have acquired possession of the document without a breach of official secrecy by a person whose identity remains unknown .","On DATE the GPE DATE newspaper , ORG , published the following article by the applicant ( unofficial translation ) :","\u201c Ambassador PERSON insults the NORP [ original title in NORP : PERSON beleidigt die GPE ]","Secret document : \u2018 Our adversaries are not to be ORG [ PERSON : \u2018 Man kann dem Gegner nicht ORG ]","by [ the applicant ]","GPE \/ GPE \u2013 Another scandal involving the NORP ambassador to GPE : PERSON , in a confidential strategy paper on the assets of Holocaust victims , talks of the \u2018 war GPE must GPE , and of \u2018 adversaries\u2019 who \u2018 are not to be ORG .","The paper is classified as \u2018 confidential\u2019 . It was written by PERSON , NORP ambassador to GPE . On DATE the CARDINAL - old high - ranking diplomat in GPE sent the task force in GPE his views on what he described as a \u2018 campaign against Switzerland\u2019 . This report has been obtained by the ORG , and is dynamite . In terms of its content , it is an unremarkable assessment of the situation . But the aggressive language used by PERSON has the effect of an electric shock on the reader . \u2018 It is a war,\u2019 writes the ambassador , \u2018 a war GPE must wage and win on the external and domestic fronts.\u2019 He describes Senator PERSON and the NORP organisations as \u2018 adversaries\u2019 , saying that \u2018 most of our adversaries are not to be ORG .","In his paper , PERSON mentions the possibility of concluding an agreement , because \u2018 the demands of the NORP organisations and Senator D\u2019Amato must be satisfied as a matter of GPE . He uses the word \u2018 deal\u2019 in this context . Ambassador PERSON suggests \u2018 paying a lump sum\u2019 to the NORP in order to settle \u2018 all the claims once and for all\u2019 . Then , he writes , \u2018 calm will be restored\u2019 .","Speaking of the \u2018 external front\u2019 , PERSON says that GPE should \u2018 campaign systematically in political circles and in the ORG . Relations with NORP organisations should be \u2018 cultivated in a friendly manner but without PERSON , with the help of a firm of lawyers , and a \u2018 well - orchestrated public relations campaign [ should be conducted ] , including seminars and round - table sessions\u2019 .","No comments on this strategy paper by the eminent diplomat \u2013 due to retire in DATE were forthcoming DATE either from ORG [ head of the NORP diplomatic service ] at ORG or from the task force headed by PERSON . PERSON had no comment to make to this newspaper .","PERSON , President of ORG ( SIG \/ FSCI ) described PERSON remarks as \u2018 shocking and profoundly insulting\u2019 . He said he foresaw \u2018 a difficult run - up to retirement\u2019 for Mr Jagmetti . \u201d","In the same edition of ORG of DATE , another article by the applicant read ( unofficial translation ) :","\u201c The ambassador in bathrobe and climbing boots puts his foot in it [ PERSON in den GPE ]","NORP Ambassador PERSON \u2019s diplomatic blunderings [ Der Schweizer Botschafter Carlo Jagmetti trampelt ORG ]","by [ the applicant ]","GPE \/ GPE DATE NORP Ambassador PERSON constantly gets himself noticed on the diplomatic scene . With his insensitive remarks on the assets of Holocaust victims , he has thrown NORP foreign policy into turmoil \u2013 and not for the first time .","Early on DATE TIME the temperature began to rise in the offices of the NORP embassy in GPE . \u2018 We do not comment on internal ORG said an embassy spokesman emphatically to this newspaper ... By DATE , nevertheless , ... [ an ] editor on the [ DATE newspaper ] ORG had already leapt to the defence of his close friend PERSON . Under the heading \u2018 Leaks continue PERSON , he announced that \u2018 this balanced document , some parts of which might , of course , be mischievously construed , may be published this weekend\u2019 .","Damage limitation , therefore , was the name of the game in GPE on DATE . Ambassador PERSON , who has represented GPE abroad for DATE , was clearly aware of the explosive nature of his strategy paper , dated DATE , on the subject of unclaimed NORP assets . In his paper , he talks about a \u2018 war GPE must wage and win on the external and domestic fronts\u2019 . He winds up with a flourish by observing : \u2018 Most of our adversaries are not to be trusted.\u2019","The NORP embassy in GPE is , however , experienced in crisis management . PERSON , who heads the embassy , regularly puts his foot in it . In DATE , DATE after moving into his office in the prestigious FAC , this senior diplomat committed his first faux pas . In an interview with the magazine ORG , he complained about the NORP administration , saying \u2018 I \u2019ve observed a certain lack of courtesy\u2019 . Even PERSON , who was said to \u2018 burst out laughing sometimes at inopportune moments\u2019 , was criticised during the interview . Apparently , Mr PERSON had \u2018 kept [ Carlo Jagmetti ] waiting for CARDINAL months\u2019 before he was accredited . And , according to the ambassador , it was legitimate to ask , on a general note , \u2018 who [ was ] actually governing GPE .","GPE reprimanded the ambassador for his ill - chosen remarks and for an unconventional public appearance ( PERSON and his wife were pictured [ in an article in ORG ] in their bathrobes ) , but the ambassador did not prove much more reticent in his subsequent utterances . And in the highly topical debate concerning the assets of Holocaust victims , PERSON has also given the impression of somebody blundering onto the diplomatic stage in outsize boots . He rebuked the Holocaust survivor PERSON in front of the assembled NORP press , saying that her claims were unfounded as her uncle had emptied the NORP bank account in question . The incident - prone diplomat based his remarks , however , not on proven facts , but on unsubstantiated rumours which had been circulating .","GPE was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage .","These remarks , which have now been made public , are all the more embarrassing since the tension seemed to be easing . Only DATE Senator PERSON and ORG had for the first time welcomed GPE \u2019s agreement to set up a fund for Holocaust victims .","NORP diplomats are now engaged in behind - the - scenes efforts to head off the impending crisis by stressing the fact that PERSON is due to retire shortly . In any event , they argue , PERSON played only a minor role in the recently concluded negotiations between NORP organisations and the NORP Senator D\u2019Amato .","PERSON himself has declined to comment . He absented himself from the major press conference held by Senator D\u2019Amato on DATE before the world \u2019s press . He was reportedly on holiday in GPE . \u201d","A third article , which also appeared in FAC on DATE and was written by the editor PERSON , was entitled \u201c The ambassador with a bunker mentality \u201d ( \u201c FAC \u201d ) .","On DATE the GPE DATE , the Tages - Anzeiger , reproduced lengthy extracts from the strategy paper in an article entitled \u201c That \u2019s all we need \u201d ( \u201c PERSON hat gerade noch gefehlt \u201d ) . Subsequently , another newspaper , ORG , also published extracts from the paper .","Following publication of these articles , ORG ( Bundesrat ) requested ORG ( ORG ) to examine the case .","ORG acts as a complaints body for media - related issues . It is an institution under NORP private law set up by CARDINAL associations of journalists which formed a foundation ( ORG ) to organise and fund the activities of ORG . According to ORG rules , its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media . Its task is to uphold freedom of the press and freedom of information , and it adopts opinions , on its own initiative or in response to complaints , on issues concerning journalistic ethics . ORG has adopted a \u201c Declaration on the rights and responsibilities of journalists \u201d , which is available on the Internet .","Its opinion ( PERSON ) of DATE concerning the present case ( no . CARDINAL , PERSON ) reads as follows ( unofficial translation ) :","\u201c II . Considerations","...","NORP With regard to the publishing of confidential information , the following extracts from the LAW on the rights and responsibilities of journalists are of relevance :","( a ) PERSON ] responsibility to the public [ shall take precedence over ] their responsibility ... towards the ... authorities ... in particular\u2019 ( Preamble ) .","( b ) Journalists shall have free access \u2018 to all sources of information and [ shall have the ] right to investigate without hindrance any facts which are in the public interest ; objections of secrecy in public or private matters may be raised only in exceptional cases , with sufficient reasons given in each ORG ( point ( a ) of the LAW ) .","( c ) Journalists shall publish only \u2018 such information , documents [ or ] images whose origin is known to them ; [ they shall not suppress ] information or essential elements [ and shall not ] distort any text , document , image ... or opinion expressed by another . [ They shall ] present unsubstantiated news items very clearly as such [ and ] make clear when pictures have been edited\u2019 . They shall comply with reasonable deadlines ( point CARDINAL of the Declaration of responsibilities ) .","( d ) Journalists shall not make use of \u2018 unfair methods in order to obtain information , ... images or ORG CARDINAL of the Declaration of responsibilities ) .","( e ) They shall respect \u2018 editorial secrecy and shall not reveal the sources of information obtained in confidence\u2019 ( point CARDINAL of the Declaration of responsibilities ) .","( f ) They shall not accept \u2018 any favours or promises which might compromise their professional independence or their ability to express their own ORG ( point CARDINAL of the Declaration of responsibilities ) .","...","It must first be established whether GPE reports come under the heading of vital interests . The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by ORG and the reports preceding such negotiations . These documents , they argue , merit greater protection than , for instance , expert reports or TIME of parliamentary committees . ORG and ORG can not form an accurate picture of international relations unless the ambassadors provide them with additional information , different from and more sensitive than that provided by the media . Diplomats also provide information they have obtained from confidential sources , behind the scenes or off the record . They need , for instance , to be able to express in plain language their views about violations of human rights and political relations in GPE , the involvement of leading NORP politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the ORG . If , despite everything , reports of this kind are published , the ambassador concerned will almost automatically be declared persona non grata in the host country . If reports of this kind were to be published on a regular basis , ambassadors would no longer be able to report on everything that was going on . That would have an adverse impact on NORP foreign policy , perhaps even paralysing it completely . And if everything were to be made public , GPE might just as well recall its diplomats and replace them with the media . In exercising their function as critic and watchdog , the media must always remain mindful of their responsibilities . This applies with particular force in the sphere of foreign policy , as the reports relating to foreign policy are also read abroad . If only for this reason , they are more sensitive than reports on domestic policy matters .","...","ORG acknowledges the importance of the principle that diplomatic correspondence should remain confidential . In the past , the NORP media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view . Disclosures in the foreign policy sphere have been the exception rather than the rule in GPE . Media bosses are clearly aware of the responsibilities inherent in the media \u2019s role as critic and watchdog in this sphere .","At the same time , it should not be forgotten that disclosures by the media in the field of foreign policy are commonplace in other countries , particularly in GPE , but also in GPE and GPE . Clearly , other governments and diplomats have long had to contend with this risk of disclosures concerning foreign policy , and have learned to live with it . Whether they like it or not , the NORP authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy , and in which revelations may come not just from the NORP media but also from foreign media . An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate , particularly since diplomatic reports are regularly forwarded to a large number of authorities .","There can be no doubt that the revelations in ORG and the TagesAnzeiger were a source of embarrassment and problems for those responsible for NORP foreign policy , but they did not restrict their room for manoeuvre substantially . Diplomatic reports are confidential by right , but when the conditions that allow confidential reports to be published are met , freedom of the press must take precedence ( Opinion CARDINAL\/CARDINAL , ORG parliamentary questions ) .","ORG must now examine whether the content of Mr Jagmetti \u2019s strategy paper is of such importance that it was appropriate to invoke the public interest , and whether it should have been published . In the view of PERSON , editor of ORG , the public interest lay in the fact that it was important to let people know how the NORP ambassador in GPE perceived the complex issue of ORG assets and the way GPE was coming to terms with its past , and what kind of aggressive language he used . According to PERSON , his newspaper did not publish any leaked information unless the public interest was at stake . Although there were more leaks now than previously , they were not damaging in principle , and were often the only remaining means of putting a stop to harmful conduct ...","From ORG standpoint , the next step is to assess the strategic importance of PERSON paper . PERSON set out in this document to make a perfectly reasonable analysis of the situation , making a number of constructive proposals . He explored CARDINAL \u2018 ORG options DATE the first involving some kind of \u2018 deal\u2019 and the second involving a \u2018 legal strategy\u2019 . The paper testifies to a fundamental concern to get at the truth , to find a generous financial solution and to protect NORP interests and the country \u2019s good relations with GPE . However , it could not escape the attention of even the most casual reader that PERSON used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal . The language used betrays attitudes which are problematic even in an internal document , since attitudes are liable to be reflected also in negotiations and informal contacts . In that connection , PERSON was to have been engaged in important discussions concerning the assets of Holocaust victims during DATE of his tenure .","ORG is mindful of the fact that the degree of public interest of confidential information can not be determined in a wholly objective manner , but depends on the ideological , cultural , economic and advertising context in which the medium operates . Nevertheless , in the case of PERSON strategy paper , the public interest was clear , as the debate surrounding the assets of Holocaust victims and GPE \u2019s role in the Second World War was highly topical in DATE and DATE and had an international dimension , and because the NORP ambassador in GPE was to occupy a prominent position in the forthcoming discussions . Knowing what that ambassador thought and how he formulated his opinions was relevant , and not a trivial concern . Leaving aside the question of the public interest and the relevance of the ambassador \u2019s remarks , the publication of this supposedly confidential paper was justified from an ethical viewpoint , since only as a result of its publication did it become clear that those in charge still had no clear idea , despite the creation of the task force , as to the question of NORP responsibility and what steps should be taken . From the perspective of political transparency , publication of the confidential paper , despite the fact that it was DATE and that in the meantime there had been talk of setting up a fund for Holocaust victims , might have spurred the government on to engage in debate in order to overcome the problems , demonstrate leadership and devise convincing solutions .","Finally , it is necessary to assess whether the information was made public in the most appropriate form . According to CARDINAL school of thought , the media are in a position of power , since not only do they inform , they also suggest by the way in which they present the information how it is to be assessed . In the present case FAC , it is argued , presented an internal analysis of foreign policy in truncated form and , by publishing it alongside comments from third parties who had not seen the original text , planted in people \u2019s minds the idea that Ambassador PERSON had \u2018 insulted the Jews\u2019 . The newspaper , by accusing PERSON of antiSemitism , started a rumour in an irresponsible manner . Reproducing the full text would not have placed PERSON under the same kind of pressure and would not have forced him to resign . The manner in which the information was published , therefore , was a source of problems and consternation .","The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti \u2019s remarks . According to ORG , there was no question of accusing Ambassador PERSON of NORP . Nevertheless , the newspaper \u2019s editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full . They maintain that , on DATE of publication , it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems .","ORG regards these arguments as spurious , and agrees with the criticism regarding the manner of publication . ORG did not make sufficiently clear that Ambassador PERSON had outlined several options in his strategy paper , of which the \u2018 deal\u2019 was just one . Nor did it make the timing of the events sufficiently clear , particularly since the document was already DATE and had reached the addressees before the interview given by the outgoing NORP President on the programme DATE \/ ORG . The newspaper unnecessarily made the affair appear shocking and scandalous and , by its use of the headline \u2018 Ambassador ORG insults the Jews\u2019 , misled the reader and made it appear that the remarks had been made DATE . It was incorrect to assert that Mr ORG \u2019s letter undermined the process which had begun in DATE , particularly since the document had been circulated beforehand and had not previously been in the public domain , and could not therefore adversely affect the talks with the country \u2019s partners at home and abroad . When ORG attempted to contact Mr ORG on DATE in order to obtain a comment , and failed to reach him because he was in GPE , the newspaper \u2019s editors should have considered whether it might not be wiser to delay publication by DATE so as to be able to publish an interview with PERSON alongside the extracts from his paper . The fact that publication went ahead in the next issue in spite of everything can only have been prompted by the fear of competition , which on no account constitutes sufficient justification for immediate publication . Hence , by publishing the strategy paper in the way it did , the ORG omitted vital pieces of information , in breach of the LAW on the rights and responsibilities of journalists ( point CARDINAL of the Declaration of responsibilities ) .","...","III . Findings","Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the ORG . The role of critic and watchdog played by the media requires them to make information public where the public interest is at stake , whether the source of information is freely accessible or confidential .","As to the publication of confidential information , the pros and cons must be weighed up carefully , with an eye to whether interests which merit protection are liable to be damaged in the process .","Internal reports by diplomats are confidential by right , but do not necessarily merit a high degree of protection in all cases . The media \u2019s role as critic and watchdog also extends to foreign policy , with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest .","In the case of PERSON , the interest to the public of his strategy paper should be acknowledged , as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims , the prominent position occupied by the NORP ambassador in GPE and the content of the document .","NORP In this case FAC , in irresponsible fashion , made PERSON views appear shocking and scandalous by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear . The newspaper therefore acted in breach of the LAW on the rights and responsibilities of journalists ( point CARDINAL of the Declaration of responsibilities ) . The Tages - Anzeiger and LOC , on the other hand , placed the affair in its proper context following the revelations by reproducing the document in its nearentirety . \u201d","Following publication of the articles , the applicant was made the subject of an investigation by the GPE cantonal authorities . By a decision of CARDINAL DATE , ORG ordered the discontinuation of the investigation into a breach of official secrecy ( Verletzung des Amtsgeheimnisses ) within the meaning of LAW . It remitted the case in respect of the charge of publication of official deliberations within the meaning of LAW to the prosecuting authorities of the GPE of GPE .","On DATE ORG ( GPE des ORG ) fined the applicant MONEY ( CHF ) ( MONEY ( ORG ) at the current exchange rate ) for contravening LAW of LAW ( see paragraph CARDINAL below ) by publishing the articles entitled \u201c Ambassador PERSON insults the NORP \u201d and \u201c The ambassador in bathrobe and climbing boots puts his foot in it \u201d .","On DATE , following an application by the applicant to have the decision set aside , ORG ( Bezirksgericht ) convicted him of an offence under LAW of LAW , but reduced the fine to CHF CARDINAL ( approximately ORG CARDINAL at the current exchange rate ) .","The relevant passages of the ORG judgment read as follows ( unofficial translation ) :","\u201c CARDINAL.CARDINAL.CARDINAL According to the case - law of ORG , the offence defined in LAW is based on a formal notion of secrecy whereby the confidential nature of a document , a set of talks or an investigation stems not from its content but from it being classified as such by the competent body . In accordance with this approach by ORG , the strategy paper in question , which was marked \u2018 ( classified ) confidential\u2019 ( Document CARDINAL\/CARDINAL ) , amounts to a secret in the formal sense , and as such attracts the protection of LAW .","When it comes to interpreting LAW , freedom of expression and freedom of the press ( LAW ) should in principle be taken into consideration in the appellant \u2019s favour . With the revision of LAW of DATE , which made the publication of secrets of minor importance an extenuating circumstance ( Article CARDINAL \u00a7 CARDINAL ) , the legislature added a substantive component to the notion of secrecy under Article CARDINAL . But even assuming that for these reasons \u2013 and contrary to the case - law of ORG \u2013 the court were to base its decision on a purely substantive notion of secrecy , the outcome would not be favourable to the appellant .","The views expressed by Ambassador PERSON in the strategy paper were not in the public domain . This , moreover , is also apparent from the fact that the information conveyed and the way it was analysed provided the basis for \u2018 sensationalist\u2019 articles by the appellant . Whether or not Ambassador LOC might have been willing to divulge the content of the strategy paper in an interview is of little relevance here . However , there is every reason to doubt it , the more so given the limited number of persons to whom the document was sent . Furthermore , contrary to the appellant \u2019s claims , the content of the strategy paper was far from unremarkable . The document contained an assessment of the delicate foreign policy situation in which GPE found itself in DATE on account of the unclaimed assets , in particular vis\u00e0vis GPE . It also proposed a variety of strategies aimed at helping the country get out of its predicament . Documents setting out often carefully worded evaluations and assessments are an essential part of the formation of opinions and decision - making at embassy level , a process during which strongly held and often diverging opinions are exchanged and discussed internally until agreement is reached on a particular position . The protection which LAW is intended to provide also applies to the formation of opinions in as free a manner as possible and without undue outside influence ( ORG ) CARDINAL IV CARDINAL ) . In that regard , the document in question was aimed at helping the head of the task force to form an opinion and hence at influencing the course of events and the country \u2019s handling of the issue of the unclaimed assets . By its very nature , the publication of internal documents of this kind , which are designed to help form opinions , can have devastating consequences for the negotiations to be conducted . Consequently , given its explosive content and the fact that it was unknown to the public , the document in question was also secret in the substantive sense . It is thus fair to say that the question whether the broad formal notion of secrecy adopted by ORG takes precedence over LAW remains open ...","To justify his actions , the appellant claims to have been defending legitimate interests . According to ORG , this extra - legal justification may be relied on \u2018 if the act in question constitutes a necessary and reasonable means of achieving a legitimate aim , is the sole possible course of action and is manifestly of less importance than the interests which the perpetrator is seeking to defend\u2019 ( ORG CARDINAL IV CARDINAL ) . The appellant argues that the editors of ORG assessed the situation before arriving at the conclusion that the public interest carried greater weight . They took the view that the public was entitled to be informed when leading diplomats used language which was in glaring contradiction with GPE \u2019s official position ( Document CARDINAL\/CARDINAL , p. CARDINAL ) . The tone employed by the ambassador was so inappropriate , they argued , that publication was necessary ( Document CARDINAL ) . Ambassador PERSON , according to the editors , was not the right person to be conducting the negotiations with Senator PERSON and the NORP organisations , as he lacked the finesse needed to deal with this important issue ( Document CARDINAL , p. CARDINAL ) . By publishing the confidential strategy paper , therefore , the appellant was in part attempting , as it were , to sideline from the negotiations a leading diplomat whose style he disliked . It must be said that , even if it was genuine , the indignation expressed by the appellant with regard to the tone of the document seems somewhat na\u00efve . While a section of the public may well have wished to be informed about internal documents of this kind , this has little to do with legitimate interests . Moreover , the appellant undoubtedly undermined the climate of discretion which is of vital importance in the sphere of diplomatic relations , thereby weakening GPE \u2019s position in the negotiations or at least compromising it substantially . In assessing the public interest relied on by the appellant in the light of the strict requirements laid down by ORG with regard to the extra - legal justification of defence of legitimate interests , it is clear , firstly , that the means employed by the ORG , consisting in the impugned publication of secret official documents , were neither necessary nor reasonable and , secondly , that the interests which were damaged as a result were not \u2018 ORG of less importance . In addition , the public debate on unclaimed assets which the appellant wished to see could perfectly well have been conducted without infringing LAW . The defence of legitimate interests can not therefore be relied on as justification ...","Under LAW of LAW , the publication of secrets of minor importance amounts to an extenuating circumstance . As indicated above , however , the secret divulged in the present case was not of minor importance . The publishing of a strategy paper which was vital to the formation of opinions within ORG and ORG , while it may not have actually weakened GPE \u2019s position vis - \u00e0 - vis the outside world and in particular in the negotiations , at least temporarily compromised it . It was important to preserve the confidentiality of the document not just because it was classified as \u2018 confidential\u2019 . The implications of the subject under discussion for NORP foreign policy also called for greater discretion in dealing with the strategy paper . There are therefore no extenuating circumstances under LAW of LAW in relation to the facts constituting the offence .","...","The offence committed can not now be regarded as minor , as the secrets which the appellant made public are not of secondary importance . In publishing the strategy paper , the appellant unthinkingly compromised GPE \u2019s tactical stance in the negotiations . Nevertheless , the offence is not a very serious one , as the appellant did not divulge an actual ORG secret whose publication could have undermined the country \u2019s very foundations . Nor should too much be made of the fault committed by the appellant , in so far as he committed his actions DATE with the backing of the newspaper \u2019s editor and its legal department \u2013 in a legitimate attempt , among other things , to start an open debate on all aspects of the unclaimed assets issue . A fine of CHF CARDINAL is therefore appropriate ... \u201d","The applicant lodged an appeal on grounds of nullity ( PERSON ) , which was dismissed by ORG ) of the GPE of GPE on DATE .","The applicant lodged an appeal on grounds of nullity and a publiclaw appeal ( staatsrechtliche Beschwerde ) with ORG ( PERSON ) . He argued that a journalist could be convicted of an offence under LAW only in exceptional circumstances , namely if the secret published was of unusual importance and publishing it undermined the country \u2019s very foundations . He referred to the public interest in being made aware of the ambassador \u2019s remarks and the role of journalists as watchdogs in a democratic society .","ORG dismissed the applicant \u2019s appeals in CARDINAL judgments dated DATE ( served on DATE ) in which it upheld the decisions of the lower courts .","In examining the appeal on grounds of nullity , ORG firstly outlined some considerations regarding LAW ( unofficial translation ) :","\u201c CARDINAL.(a ) According to the case - law and most commentators , Article CARDINAL of LAW is aimed at protecting secrets in the formal sense . The sole determining factor is whether the documents , investigations or deliberations are secret by virtue either of the law or of a decision taken by the authority concerned . Whether they have been classified as \u2018 ORG or simply \u2018 confidential\u2019 is of little relevance ; it is sufficient for it to be clear that the classification was designed to prevent their publication ... This formal notion of secrecy differs from the substantive notion , to which most of the Articles of LAW on the disclosure of secret information relate , for instance LAW ( diplomatic treason ) or LAW ( breach of official secrecy ) . In the substantive sense , a fact is secret if it is accessible to only a limited number of persons , if the authority in question wishes to keep it secret and if that wish is justified by interests which merit protection ...","Many commentators have argued in favour of the wholesale repeal of Article CARDINAL , saying that steps should at least be taken to ensure that publication of a secret in the substantive sense is punishable only if the secret is of major importance ...","( b ) As part of the revision of the criminal and procedural provisions relating to the media , ORG proposed repealing LAW without replacing it with another provision . In its communication ( BBl ( ORG ) DATE IV CARDINAL et seq . ) , ORG argued in particular that it was unfair to punish the journalist who had published the confidential information , while the official or representative of the authority concerned who had originally made publication possible generally escaped punishment because his or her identity could not be established ... According to ORG , Article CARDINAL of LAW , which protected secrets in the formal sense ... , placed excessive restrictions on the freedom of action of the media . In its view , the \u2018 second use\u2019 of a disclosed secret ( by someone working in the media , for instance ) was less serious in terms of criminal potential and unlawfulness than the initial disclosure of the secret by its holder . In addition , the journalist was by no means always aware that the information he had received was obtained as the result of betrayal of a secret . The actions of the \u2018 second user\u2019 might be assessed differently in cases where the information disclosed was a genuine ORG or military secret . However , independently of LAW , the legislation in force in any case made provision , in relation to diplomatic treason ( LAW ) and breach of military secrecy ( LAW ) , for CARDINAL layers of protection in such cases , one against disclosure by the holder of the secret and the other against disclosure by the \u2018 second ORG . According to ORG , the proposed repeal of Article CARDINAL of the Criminal Code would not therefore undermine the protection of secrecy under criminal law in important spheres . The objection that Article CARDINAL also protected individual interests was at best indirectly relevant , as ORG private and personal lives were protected first and foremost by Articles CARDINAL - CARDINAL septies of LAW and the provisions of LAW concerning the protection of personality rights ...","In the federal authorities , those in favour of the wholesale repeal of LAW have also argued that the provision in question is rarely applied and is not effective . They contend that it is unfair , in particular , because it penalises only the journalist , who is the \u2018 second user\u2019 , whereas the identity of the initial perpetrator of the offence , namely the official or representative of the authority concerned , remains unknown ... and he or she can not therefore be called to account for a breach of official secrecy , for instance . Even if LAW were simply repealed , they argue , the disclosure by a journalist of genuinely important secrets would still be punishable , for instance under LAW ( diplomatic treason ) or LAW ( breach of military secrecy ) . Opponents of the repeal of Article CARDINAL have argued ... that the provision is more necessary than ever , as the disclosure of secret or confidential information can have serious consequences ... \u201d","ORG then turned to the circumstances of the present case :","\u201c CARDINAL . The \u2018 publication of secret official ORG ( offence referred to in Article CARDINAL of LAW ) must still be considered to be based on a formal notion of secrecy , in line with the case - law of ORG . The addition of a third paragraph to Article CARDINAL has done nothing to change that . However , in view of the fact that it is now open to the criminal courts not to impose any penalty , they must determine in advance whether the classification as \u2018 ORG can be justified in the light of the purpose and content of the disclosed documents . That is the case here .","The extracts from the confidential document published by the appellant were , moreover , also secret in the substantive sense . The appellant rightly refrains from arguing that the extracts in question were of minor importance within the meaning of Article CARDINAL \u00a7 CARDINAL of LAW . In requesting that the application of Article CARDINAL be confined to cases in which the secrets disclosed are of major importance and their disclosure threatens the very foundations of the ORG , the appellant is seeking a decision which goes well beyond any interpretation of LAW ( in line with LAW and the case - law of ORG ) , which ORG is obliged to apply pursuant to LAW . The same is true of the argument that persons working in the media can be convicted of publishing secret official deliberations under LAW only if the interest of the ORG in preserving the confidentiality of the disclosed information outweighs the public interest in receiving the information . This comparison of the interests at stake has no bearing on the essential elements of the offence , although it may possibly have a bearing on the extra - legal justification of protection of legitimate interests . In any event , the circumstances of the present case are not such as to allow the protection of legitimate interests to be relied on as justification for publishing secret official deliberations .","This conclusion renders a comparison of the interests at stake in the present case redundant . It is therefore not necessary to respond to the appellant \u2019s criticism of the way in which the cantonal authorities balanced those interests .","For the sake of completeness , however , it should nevertheless be pointed out that , for the reasons set forth by the federal authorities , the interest in maintaining the confidentiality of the strategy paper in question carried greater weight than the public interest in being apprised of the extracts published in the newspaper . In order to avoid repetition , the court would refer here to the considerations set forth in the impugned judgment and in the first - instance judgment . It was in the interests not only of the ambassador and ORG , but also of the country , to preserve the confidential nature of the strategy paper . The publication of isolated extracts was liable to interfere with the formation of opinions and the decision - making process within the ORG bodies in GPE , and above all to further complicate the already difficult negotiations being conducted at international level ; this was not in the country \u2019s interest . On the other hand , the passing interest in the extracts published out of context in the newspaper which the eye - catching headline aroused among sensation - seeking members of the public is relatively insignificant in legal terms . This is all the more true since the \u2018 ORG criticised by the appellant , used in an internal document written in a specific context ( and the content of which was , according to the article , an unremarkable assessment of the situation ) , did not in any event permit the reader to draw clear and indisputable conclusions as to the \u2018 mentality\u2019 of the ambassador , still less as to his ability to perform the task assigned to him ... \u201d","In its judgment following the applicant \u2019s public - law appeal , ORG found as follows ( unofficial translation ) :","\u201c CARDINAL . In his public - law appeal , the appellant requests in particular that the principle of equality in the breach of the law [ Gleichbehandlung i m Unrecht ] be applied to him and raises , among other things , a complaint concerning a violation of the principle of lawfulness ...","( b ) There is no need to explore in detail here the reasons why the prosecuting authorities decided not to prosecute the other journalists mentioned by the appellant for publication of secret official deliberations on account of the articles which they wrote , or to consider whether those reasons were sufficient . Even if the latter question were to be answered in the negative , it would not benefit the appellant in any way .","It is clear from the explanations on this point set forth in the impugned judgment ( pp . CARDINAL et seq . , Considerations point CARDINAL ) and in the first - instance judgment ( p. CARDINAL , Considerations point CARDINAL ) that the exceptional circumstances in which ORG case - law recognises the right to equality in the breach of the law do not apply . The approach taken by the prosecuting authorities in this case does not in itself constitute a \u2018 consistent\u2019 ( possibly unlawful ) practice , either in the sense that , in the absence of specific substantive grounds , journalists are only very exceptionally prosecuted for publication of secret official deliberations , not systematically , or in the sense that , where extracts from the same confidential document are published by several journalists in different articles , the journalist who for whatever reason \u2013 whether on the basis of the way the article was written or of the extracts selected DATE appears to be the most culpable is consistently singled out for prosecution . Moreover , there is nothing to suggest that either ( possibly unlawful ) practice will be adopted in the future ... \u201d","Article CARDINAL of LAW , entitled \u201c Publication of secret official deliberations \u201d , reads as follows ( unofficial translation ) :","\u201c CARDINAL . Anyone who , without being entitled to do so , makes public all or part of the documents , investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine .","Complicity in such acts shall be punishable .","The court may decide not to impose any penalty if the secret concerned is of minor importance . \u201d","In a judgment of CARDINAL DATE ( BGE CARDINAL IV CARDINAL ) , ORG specified that the notion of secrecy on which LAW was based was a purely formal one .","The NORP legislature recently adopted LAW of DATE , which came into force on DATE ( Compendium of Federal Law CARDINAL ) . The relevant provisions of the LAW , which is aimed at improving access to official documents , read as follows ( unofficial translation ) :","\u201c Part CARDINAL : General provisions","The present Act is aimed at fostering transparency as to the tasks , organisation and activities of the authorities . To that end , it shall contribute to informing the public by providing access to official documents .","...","Part CARDINAL : Right of access to official documents","Any person shall have the right to consult official documents and obtain information as to their content from the authorities .","NORP The person concerned may consult the official documents in situ or request a copy of them , without prejudice to the copyright legislation .","NORP If the official documents have already been published by the ORG in paper or electronic form , the conditions set out in DATE and CARDINAL shall be deemed to have been fulfilled .","The right of access shall be restricted , deferred or refused where access to an official document :","( a ) is liable to interfere significantly with the process of free formation of opinions and intentions within an authority governed by LAW , another legislative or administrative body or a judicial authority ;","( b ) interferes with the implementation of specific measures taken by an authority in accordance with its objectives ;","( c ) is liable to jeopardise the country \u2019s internal or external security ;","( d ) is liable to jeopardise NORP interests in the sphere of foreign policy and international relations ;","...","NORP The right of access shall be restricted , deferred or refused if access to an official document might interfere with the private sphere of a third party , unless the public interest in transparency is judged on an exceptional basis to carry greater weight . \u201d","The Order of DATE on the classification and processing of civil - authority information ( ORG ) , in force at the material time , defines the different levels of classification ( unofficial translation ) :","\u201c Part CARDINAL : General provisions","The present Order lays down the provisions on maintaining secrecy applicable to civil - authority information ( hereinafter \u2018 information\u2019 ) which , in the higher interests of the ORG , must not be passed on temporarily to other persons or be disclosed ; it does so by means of instructions on the manner in which such information is to be classified and processed .","...","Part CARDINAL : Classification","The body which issues the information ( hereinafter \u2018 the issuing body\u2019 ) shall classify it on the basis of the level of protection it requires . There shall be CARDINAL categories of classification : \u2018 ORG and \u2018 confidential\u2019 .","The following information is to be classified as \u2018 ORG :","( a ) information which , if it became known to unauthorised persons , could seriously damage GPE \u2019s external relations or jeopardise the implementation of measures designed to protect the country \u2019s internal and external security and aimed , for instance , at maintaining government activity during an emergency or ensuring vital supplies ;","( b ) information to which only a very small number of persons have access .","Information within the meaning of section CARDINAL which is of less significance and to which , normally speaking , a greater number of people have access shall be classified as \u2018 confidential\u2019 .","A \u2018 confidential\u2019 classification shall also be given to information which , if it became known to unauthorised persons , might enable them to :","( a ) interfere with the activities of the government ;","( b ) frustrate the implementation of important measures by the ORG ;","( c ) NORP betray manufacturing secrets or important commercial secrets ;","( d ) frustrate the course of criminal proceedings ;","( e ) undermine the security of major infrastructure .","Heads of department , the Federal Chancellor , secretaries general , office directors and their deputies shall be responsible for classifying information and amending or removing classification . They may delegate their powers in certain cases . \u201d","This Order was subsequently replaced by the Order of DATE on the protection of federal information ( ORG Law CARDINAL.CARDINAL ) , which came into force on DATE .","On DATE the CARDINAL special representatives on freedom of expression ( Mr ORG , ORG on ORG and Expression ; Mr PERSON , ORG of the ORG ; PERSON , Organisation of American States ( ORG ) Special Rapporteur on Freedom of Expression ; and PERSON , ORG and Peoples\u2019 Rights ( ACHPR ) Special Rapporteur on Freedom of Expression ) adopted a joint declaration . The following is an extract from the declaration :","\u201c Journalists should not be held liable for publishing classified or confidential information where they have not themselves committed a wrong in obtaining it . It is up to public authorities to protect the legitimately confidential information they hold . \u201d","On DATE ORG of ORG adopted a resolution on espionage and divulging ORG secrets . The paragraphs of relevance to the present case read as follows :","\u201c ORG - trial issues in criminal cases concerning espionage or divulging ORG secrets ( Resolution CARDINAL ( DATE ) )","ORG finds that the ORG \u2019s legitimate interest in protecting official secrets must not become a pretext to unduly restrict the freedom of expression and of information , international scientific cooperation and the work of lawyers and other defenders of human rights .","It recalls the importance of freedom of expression and of information in a NORP society , in which it must be possible to freely expose corruption , human rights violations , environmental destruction and other abuses of authority .","...","The ORG notes that legislation on official secrecy in many ORG member GPE is rather vague or otherwise overly broad in that it could be construed in such a way as to cover a wide range of legitimate activities of journalists , scientists , lawyers or other human rights defenders .","NORP ... For its part , ORG found \u2018 ORG an injunction against the publication in GPE of newspaper articles reporting on the contents of a book ( Spycatcher ) that allegedly contained secret information , as the book was readily available abroad .","...","It calls on the judicial authorities of all countries concerned and on ORG to find an appropriate balance between the ORG interest in preserving official secrecy on the one hand , and freedom of expression and of the free flow of information on scientific matters , and society \u2019s interest in exposing abuses of power on the other hand .","The ORG notes that criminal trials for breaches of ORG secrecy are particularly sensitive and prone to abuse for political purposes . It therefore considers the following principles as vital for all those concerned in order to ensure fairness in such trials :","information that is already in the public domain can not be considered as a ORG secret , and divulging such information can not be punished as espionage , even if the person concerned collects , sums up , analyses or comments on such information . The same applies to participation in international scientific cooperation , and to the exposure of corruption , human rights violations , environmental destruction or other abuses of public authority ( whistle - blowing ) ;","NORP legislation on official secrecy , including lists of secret items serving as a basis for criminal prosecution must be clear and , above all , public . Secret decrees establishing criminal liability can not be considered compatible with ORG legal standards and should be abolished in all member States ;","... \u201d","As regards the classification of ORG documents , ORG Res(CARDINAL)CARDINAL of DATE on access to ORG documents articulates a clear principle : that of publishing information , with classification only in exceptional cases . Accordingly , it defines CARDINAL categories of classification : ( CARDINAL ) documents not subject to any particular classification , which are public ; ( CARDINAL ) documents classified as \u201c restricted \u201d ; ( CARDINAL ) documents classified as \u201c confidential \u201d ; and ( CARDINAL ) documents classified as \u201c secret \u201d . No definition exists which would enable documents to be classified according to their content . The principle of transparency promoted by ORG Res(CARDINAL)CARDINAL has ultimately resulted in publication becoming the norm . It seems that , since its adoption , ORG has been classified as \u201c secret \u201d .","The United Nations Human Rights Committee , in concluding observations adopted in DATE , criticised the implementation of LAW by GPE authorities and its impact on the activities of journalists ( Concluding Observations , doc . CCPR \/ CO\/CARDINAL\/UK of DATE ) :","\u201c ...","The ORG is concerned that powers under LAW DATE have been exercised to frustrate former employees of the ORG from bringing into the public domain issues of genuine public concern , and to prevent journalists from publishing such matters .","ORG should ensure that its powers to protect information genuinely related to matters of national security are narrowly utilised , and limited to instances where it has been shown to be necessary to suppress release of the information . \u201d","In the PERSON . v. GPE case before ORG ( DATE , Series C no . CARDINAL ) , ORG submitted as follows :","\u201c DATE . ... The disclosure of ORG - held information should play a very important role in a NORP society , because it enables civil society to control the actions of the government to which it has entrusted the protection of its interests . ... \u201d","ORG found as follows :","\u201c CARDINAL . ... In several resolutions , ORG has considered that access to public information is an essential requisite for the exercise of democracy , greater transparency and responsible public administration and that , in a representative and participative democratic system , the citizenry exercises its constitutional rights through a broad freedom of expression and free access to information .","...","In this regard , the ORG \u2019s actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions , and so that they can question , investigate and consider whether public functions are being performed adequately . ...","NORP control by society , through public opinion , fosters transparency in ORG activities and promotes the accountability of ORG officials in relation to their public activities . ... \u201d","Mr PERSON , rapporteur on CARDINAL ( DATE ) of DATE ( see paragraph CARDINAL above ) , carried out a comparative study of legislation concerning ORG secrets in the member ORG . In his report he stressed that the disclosure of certain types of classified information appeared to be punishable in all countries , but with a wide variety of approaches being adopted . The report also made reference to the methods of classification used . Below are some extracts from the report :","\u201c CARDINAL . Generally speaking , one can identify CARDINAL basic approaches : the first consists in a short and general definition of the notion of official or ORG secret ( or equivalent ) , presumably to be filled in on a case - by - case basis . The second involves lengthy and more detailed lists of specific types of classified information . The third approach combines the other CARDINAL by defining general areas in which information may be classified as secret , and then relying upon subsequent administrative or ministerial decrees to fill in more specifically which types of information are in fact to be considered as secret .","...","There are , of course , many other differences among the States\u2019 legislation that I need not dwell on . GPE ( GPE and GPE , for example ) distinguish between \u2018 official ORG and \u2018 State ORG , whose violation is sanctioned more heavily . Most GPE also distinguish different degrees of secrecy ( classified or restricted , secret , top secret , etc . ) . There are also differences in the harshness of penalties foreseen , which may be limited to fines in less serious cases . Some statutes distinguish between duties of civil servants and those of ordinary citizens . Some expressly penalise disclosure through negligence , others require criminal intent . For our specific purpose , these differences are immaterial .","...","To sum up , each of these legislative approaches allows for reasonable responses to the difficult task of specifying in advance the types of information that the ORG has a legitimate interest in protecting , while nonetheless respecting the freedom of information and the need for legal security . But any administrative or ministerial decrees giving content to more generally worded statutes must at the very least be publicly accessible . Also , in the absence of a vigilant and truly independent judiciary , and of independent media that are ready to expose any abuses of power , all legislative schemes reviewed are liable to abuse . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102337","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF GLADKIY v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violations of Art. 3 (substantive aspect);No violation of Art. 6-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lived before his arrest in GPE , GPE .","On DATE the applicant was arrested and DATE he was placed in detention facility no . IZ-CARDINAL\/CARDINAL in GPE . On his admission to the facility he received a fluorography examination which revealed no signs of tuberculosis . On DATE the applicant underwent another fluorography test which also showed no symptoms of the illness .","On DATE the applicant was once again subjected to a fluorography examination which detected tuberculosis changes in his left lung . On the basis of that examination the applicant was diagnosed with infiltrative tuberculosis ( \u201c TB \u201d ) of the upper lobe of the left lung and transferred to the pulmonary tuberculosis ward of the medical department of the detention facility , where he remained until DATE .","Despite the ORG 's request for them to produce the applicant 's complete medical record , the ORG only submitted medical documents drawn up after DATE . Relying on a certificate issued by the head of the medical department of ORG , the Government argued that in facility no . PERSON the applicant had undergone an intensive course of anti - tuberculosis chemotherapy comprising CARDINAL unidentified drugs . As follows from that certificate , in DATE a positive dynamic in the treatment of the illness was registered . However , on DATE the applicant 's state of health seriously deteriorated . A medical examination by a tuberculosis specialist on DATE led to the applicant being diagnosed with acute viral respiratory infection . He was prescribed \u201c symptomatic treatment \u201d . A fluorography examination performed on DATE revealed a negative dynamic of the tuberculosis process showing an increase in the number of disintegration cavities . The doctor 's diagnosis was \u201c infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase , [ presence of mycobacterium tuberculosis ( \u201c ORG \u201d ) ] , progress of the tuberculosis process and CARDINAL stage hypotrophy \u201d . According to the same certificate , the regimen of anti - tuberculosis treatment received by the applicant was amended to take the deterioration of his health into account . The applicant was prescribed \u201c infusion chemotherapy \u201d , including a number of drugs ( izoniazid , ethambutol , and rifampicin ) and detoxication therapy .","An extract from the applicant 's medical record drawn up on DATE shows that the deterioration of the applicant 's health in DATE was linked to \u201c irregular medication \u201d .","On DATE the applicant was discharged from the medical department of the detention facility with a final diagnosis of infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase , and sent for subsequent treatment to tuberculosis hospital no . CARDINAL in GPE . On the applicant 's admission to the hospital the attending doctor made an entry in his medical record noting that the applicant was calm and collected , exhibiting strong determination to continue anti - tuberculosis treatment . The applicant did not make any complaints about the quality of the treatment provided to him in the tuberculosis hospital .","On DATE , following a series of examinations by a forensic medical commission , the applicant was assigned second degree disability status because of his tuberculosis . In DATE he underwent stabilising thoracoplasty followed by an intensive course of anti - tuberculosis chemotherapy . The applicant was recommended further surgery following his release from detention .","From DATE to CARDINAL DATE the applicant was detained in facility no . IZ-CARDINAL\/CARDINAL . According to the applicant , that detention facility was built in DATE and no renovation work has been done on the cells since .","According to certificates issued on DATE by the director of the facility and produced by the ORG , the applicant was kept in CARDINAL different cells which measured CARDINAL , CARDINAL , CARDINAL , CARDINAL and QUANTITY . The smaller cells had CARDINAL sleeping places , the CARDINAL larger cells were equipped with CARDINAL bunks and the largest cell had CARDINAL sleeping places . The Government submitted that the information on the exact number of inmates detained together with the applicant was not available . They further noted that at all times the applicant had had an individual bunk and bedding .","Relying on the information provided by the director of the facility , the ORG further argued that the sanitary conditions in the cells were satisfactory . In particular , the ORG submitted that the cells received natural light and ventilation through a window measuring QUANTITY . The cells had no artificial ventilation . Each cell was equipped with a lavatory pan , a sink , a tap with running water , wooden benches and a table . Inmates were allowed to take a shower once DATE for TIME . Clean bedding was also provided once a week . The cells were disinfected . Inmates were afforded an hour of outdoor recreation per day in QUANTITY equipped with wooden benches and covered by a shed roof against rain and snow . The Government , relying on the information provided by the director of the facility , further stated that the applicant was given food \u201c in accordance with the established norms \u201d .","The applicant did not dispute the cell measurements . However , relying on submissions by his former fellow inmates whose complaints about the conditions of detention in facility no . PERSON had already been examined by ORG ( see , among other authorities , PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , CARDINAL DATE , and PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) , he alleged that the cell which measured QUANTITY had had CARDINAL sleeping places and had usually housed CARDINAL inmates . The smallest cells , which measured QUANTITY , had either CARDINAL or CARDINAL sleeping places and accommodated from CARDINAL detainees . The remaining CARDINAL cells were equipped with CARDINAL sleeping places and housed CARDINAL inmates . Given the lack of beds , inmates had slept in shifts . They were not provided with bedding .","The applicant further submitted that the sanitary conditions had been appalling . The cells were infested with insects but the management did not provide any insecticide . The walls in the cells were covered with a thick layer of mould . Pieces of plaster were falling from the walls . The applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air . It was not before DATE , that is long after his transfer to another detention facility , that the metal blinds were removed in compliance with the recommendations of ORG . It was impossible to take a shower as inmates were given TIME and two to CARDINAL men had to use CARDINAL shower head at the same time . That situation was further aggravated by the fact that inmates could only take a shower once DATE . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . They were also allowed to smoke in the cells . The toilet was a filthy hole in the floor , separated from the living area by a small partition , and spread an unpleasant odour in the cell . At no time did inmates have complete privacy . Anything they happened to be doing \u2013 using the toilet , sleeping DATE was in view of the guard or fellow inmates . No toiletries were provided . The food was of poor quality and in scarce supply .","The applicant complained to various NORP authorities , including ORG , about the poor conditions of his detention . On DATE the applicant received a letter from the ORG which , in so far as relevant , read as follows :","\u201c An inspection , performed by ORG on DATE in the detention facility established that [ each inmate ] has QUANTITY of personal space while the required norm is QUANTITY for each detainee , thus the constitutional rights of detained individuals are being violated . Other violations of sanitary norms and [ norms ] related to medical assistance were discovered and the Ombudsman recommended the head of detention facility no . GPE to eliminate [ those violations ] . \u201d","On DATE the applicant lodged an action against detention facility no . IZ-CARDINAL\/CARDINAL and ORG seeking compensation for damage caused to his health because he had contracted tuberculosis in detention , had been denied access to adequate medical services and had been detained in appalling conditions for DATE after his arrest .","On DATE ORG of FAC dismissed the action , reasoning that as the applicant had been medically examined on his admission to facility no . IZ-CARDINAL\/CARDINAL , had remained under constant medical supervision and had shared cells with healthy inmates , there was no evidence of fault on the part of the facility administration for the damage caused to his health . In addressing the applicant 's complaint about the poor conditions of his detention and a possible link between the detention conditions and his having been infected with tuberculosis , ORG found as follows :","\u201c [ The applicant 's ] arguments that sanitary requirements were not complied with in the detention facility are unsubstantiated , as the representative of the detention facility refuted those arguments ... despite the fact that the facility premises need reconstruction , all sanitary measures are taken in the facility ; tuberculosis patients take showers separately from healthy inmates , then the premises are disinfected . There are separate premises for outdoor walks for tuberculosis patients . Those premises are also disinfected .","It was established in the course of the hearing that [ the applicant ] had not had tuberculosis before or been registered as a tuberculosis patient , and that his tuberculosis had been detected for the first time in the detention facility .","However , that circumstance can not serve as a ground for upholding the plaintiff 's claims , because the cause of the illness was not established and the prison authorities were not at fault ; furthermore , there was no action \/ inaction on the part of the prison administration which could have created the conditions for the development of the plaintiff 's illness .","The overcrowding in the cells of the detention facility is an objective circumstance which was not caused by the facility administration and , moreover , the court did not establish a direct causal link between the overcrowding in the cells where [ the applicant ] was detained and his illness . \u201d","The applicant participated in the hearings before ORG .","NORP The applicant appealed , and sought leave to attend the appeal hearing .","On DATE , in the absence of the applicant , who had not been notified of the hearing , ORG upheld the judgment of DATE . ORG concluded that the fact that the applicant had contracted tuberculosis in the detention facility \u201c could not serve as evidence of the defendant 's fault in having caused the illness \u201d because the cause of the tuberculosis had not been and could not be established .","On DATE the President of ORG lodged an application for supervisory review of the judgment of DATE , arguing as follows :","\u201c In violation of the requirements of LAW the [ Regional ] Court examined the case upon [ the applicant 's ] action although there was no evidence that the plaintiff had been notified of the date and place of the court hearing .","[ The applicant ] is in detention and was not brought to the court , however , he has the right to submit his arguments , [ or ] participate in the proceedings through his representative ... and , thus , he has to be promptly notified of DATE of the examination of the case . \u201d","On DATE the Presidium of ORG accepted the application for supervisory review , quashed the judgment of DATE , having endorsed the arguments of ORG President , and sent the case for fresh examination by the appeal court .","In DATE the applicant lodged an additional statement of appeal , informing ORG that he had appointed CARDINAL lawyers to represent him during the appeal proceedings . He also noted that in the event of the lawyers ' failure to appear , ORG should issue the judgment in their absence . No request for leave for the applicant to appear before ORG was filed .","By a letter of CARDINAL DATE ORG informed the applicant 's lawyers and the applicant that a hearing had been scheduled for DATE .","On DATE ORG , having examined the case on the basis of the parties ' written submissions as the applicant 's representatives and the respondent party failed to appear , upheld the judgment of DATE . ORG confirmed ORG findings that the applicant had been healthy before his placement in custody , and that tuberculosis had only been detected DATE after his admission to the detention facility . It further endorsed ORG conclusion that it was impossible to establish the cause of the illness and that there was no fault on the part of the facility administration in the deterioration of the applicant 's health . Without providing any details , ORG further stressed that the applicant had been subjected to regular medical check - ups during his detention and that he had received the necessary medical assistance . It also noted that the fact that the cells in the detention facility had housed CARDINAL times more detainees than they had been designed to accommodate could not be the cause of the applicant 's illness .","The applicant was served with a copy of the judgment on DATE .","\u201c CARDINAL . Provision of anti - tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the ORG and is performed on the basis of the principles of legality , compliance with the rights of the individual and citizen , [ and ] general accessibility in the amount determined by ORG guarantees for provision of medical assistance to citizens of GPE , free of charge .","Anti - tuberculosis aid shall be provided to citizens when they voluntarily apply [ for such aid ] or when they consent [ to such aid ] , save for cases indicated in Sections CARDINAL and CARDINAL of the present Federal law and other federal laws ... \u201d","\u201c CARDINAL . Individuals suffering from tuberculosis who are in need of anti - tuberculosis aid shall receive such aid in medical anti - tuberculosis facilities licensed to provide [ it ] .","Individuals who are or have been in contact with an individual suffering from tuberculosis shall undergo an examination for the detection of tuberculosis in compliance with the laws of GPE ... \u201d","Regular medical examinations of persons suffering from tuberculosis shall be performed in compliance with the procedure laid down by a competent federal executive body ...","Regular medical examinations of persons suffering from tuberculosis shall be performed irrespective of the patients ' or their representatives ' consent .","A medical commission appointed by the head of a medical anti - tuberculosis facility ... shall take decisions authorising regular medical examinations or terminating them and record such decisions in medical documents ... ; an individual in respect of whom such a decision has been issued , shall be informed in writing about the decision taken . \u201d","\u201c CARDINAL . Individuals suffering from contagious forms of tuberculosis who ... intentionally avoid medical examinations aimed at detecting tuberculosis , or avoid treating it , shall be admitted , by court decision , to specialised medical anti - tuberculosis establishments for mandatory examinations and treatment . \u201d","\u201c CARDINAL . Individuals admitted to medical anti - tuberculosis facilities for examinations and ( or ) treatment , shall have a right to :","receive information from the administration of the medical anti - tuberculosis facilities on the progress of treatment , examinations ...","have meetings with lawyers and clergy in private ;","take part in religious ceremonies , if they do not have a damaging impact on the state of their health ;","continue their education ...","Individuals ... suffering from tuberculosis shall have other rights provided for by the laws of GPE on health care ... \u201d","\u201c Individuals ... suffering from tuberculosis shall ;","submit to medical procedures authorised by medical personnel ;","comply with the internal regulations of medical anti - tuberculosis facilities when they stay at those facilities ;","comply with sanitary and hygiene conditions established for public places when persons not suffering from tuberculosis [ visit them ] . \u201d","\u201c CARDINAL . Individuals ... suffering from tuberculosis shall be provided with medication free of charge for out - patient treatment of tuberculosis by federal specialised medical facilities in compliance with the procedure established by the Government of GPE ... \u201d","NORP law gives detailed guidelines for the provision of medical assistance to detained individuals . These guidelines , found in joint Decree no . CARDINAL\/CARDINAL of ORG and ORG , on ORG or Detained ( \u201c the Regulation \u201d ) , enacted on DATE , are applicable to all detainees without exception . In particular , section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee . On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates . The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance . Particular attention must be paid to individuals suffering from contagious conditions . DATE after the detainee 's arrival at the detention facility , he should receive an in - depth medical examination , including fluorography . During the in - depth examination a prison doctor should record the detainee 's complaints , study his medical and personal history , record injuries if present , and recent tattoos , and schedule additional medical procedures if necessary . A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases , HIV , tuberculosis and other illnesses .","Subsequent medical examinations of detainees are performed at least twice a DATE or at detainees ' request . If a detainee 's state of health has deteriorated , medical examinations and assistance should be provided by medical personnel of the detention facility . In such cases a medical examination should include a general medical check - up and additional methods of testing , if necessary , with the participation of particular medical specialists . The results of the examinations should be recorded in the detainee 's medical history . The detainee should be fully informed of the results of the medical examinations .","Section III of the ORG also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment . In each case of refusal , a corresponding entry should be made in the detainees ' medical record . A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure .","Detainees take prescribed medicines in the presence of a doctor . In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a DATE dose of medicines to the detainee for unobserved intake .","Section X of the Regulation regulates medical examinations , monitoring and treatment of detainees suffering from tuberculosis . It lays down a detailed account of medical procedures to be employed , establishes their frequency , and regulates courses of treatment for new tuberculosis patients and previously treated ones ( relapsing or defaulting detainees ) . In particular , it provides that when a detainee exhibits signs of a relapse of tuberculosis , he or she should immediately be removed to designated LOC ( infectious unit of the medical department of the facility ) and should be sent for treatment to an anti - tuberculosis establishment . The prophylactic and anti - relapse treatment of tuberculosis patients should be performed by a tuberculosis specialist . Rigorous checking of the intake of anti - tuberculosis drugs by the detainee should be put in place . Each dose should be recorded in the detainee 's medical history . A refusal to take anti - tuberculosis medicine should also be noted in the medical record . A discussion of the negative effects of the refusal should follow . Detainees suffering from tuberculosis should also be put on a special dietary ration .","On DATE ORG adopted Decree no . CARDINAL on Improvement of Anti - Tuberculosis Measures in GPE ( \u201c LAW \u201d or \u201c Decree \u201d ) . Having acknowledged a difficult epidemic situation in GPE in connection with a drastic increase in the number of individuals suffering from tuberculosis , particularly among children and detainees , and a substantial rise in the number of tuberculosis - related deaths , the Decree laid down guidelines and recommendations for country - wide prevention , detection and therapy of tuberculosis which conform to international standards , identifying forms and types of tuberculosis and categories of patients suffering from them , establishing types of necessary medical examinations , analyses and testing to be performed in each case and giving extremely detailed instructions on their performance and assessment ; it also laid down rules on vaccination , determined courses and regimens of therapy for particular categories of patients , and so on .","NORP In particular , Addendum CARDINAL to the Decree contains an Instruction on chemotherapy for tuberculosis patients . The aims of treatment , essential anti - tuberculosis drugs and their dose combinations , as well as standard regimens of chemotherapy laid down by the ORG for NORP tuberculosis patients conformed to those recommended by ORG in Treatment of Tuberculosis : ORG ( see below ) .","Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .","In DATE , following the inspection in DATE of penitentiary facilities in LOC , ORG published his report which , in so far as relevant , read as follows :","\u201c CARDINAL of the most acute problems continues to be the problem of medical and sanitary assistance [ provided to ] detainees . The medical [ and ] sanitary assistance provided in the prison system does not ensure the preservation and improvement of [ detainees ' ] health , and the financial resources available are insufficient to meet the detainees ' needs in terms of medical and sanitary assistance . In fact , penitentiary institutions and temporary detention facilities are frequently left without any financial resources to purchase medical equipment or medicines , in serious violation of the right to health and medical assistance guaranteed by LAW .","A particular concern is the contraction of tuberculosis in those institutions ...","In DATE [ ORG of ORG ] received CARDINAL complaints ( including CARDINAL collective complaints ) from detainees , CARDINAL of which concerned medical assistance ...","According to information supplied by [ ORG of ORG ] , CARDINAL persons are detained in [ facility no . IZ-CARDINAL\/CARDINAL ] ...","ORG received CARDINAL complaints from persons detained in facility no . IZ-CARDINAL\/CARDINAL ...","In DATE the ORG visited the detention facility . During the visit the ORG identified the following violations : overpopulation [ of the facility ] ( CARDINAL instances ) ; shortage of bedding ; absence of radio in certain cells ; complete absence of TV sets or refrigerators ; limitation of the time for outside walks ... ; insufficient medical assistance .","...","[ Facility no . IZ-CARDINAL\/CARDINAL ] was built before the war ; it requires complete reconstruction . During DATE the detention facility has always been overpopulated , housing CARDINAL times more inmates than it should ; management are therefore unable to comply with the minimum space requirement per inmate . While the rule is QUANTITY of living space per inmate , inmates in the detention facility have QUANTITY each . Persons whose guilt [ in having committed crimes ] has not yet been established by a court are detained in conditions which diminish their human dignity and frequently cause harm to their health . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW of GPE provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to Article CARDINAL , ORG agencies and ORG officials are liable for damage caused to an individual by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .","The Code of Civil Procedure of GPE provides that individuals may appear before a court in person or act through a representative ( LAW ) . The court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health ( section CARDINAL \u00a7 CARDINAL ) .","The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .","On several occasions ORG has examined complaints by convicted persons whose requests for leave to appear in civil proceedings were refused by the courts . It has consistently declared the complaints inadmissible , finding that the impugned provisions of LAW and LAW did not , as such , restrict the convicted person 's access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided for by law . If necessary , the hearing may be held at the location where the convicted person is serving his or her sentence , or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant 's submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .","By virtue of Articles CARDINAL and CARDINAL of the Code of Civil Procedure , a court may hold a session outside the courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .","ORG provide a framework of guiding principles for health services . The relevant extracts from the Rules read as follows :","\u201c Health care","Prison authorities shall safeguard the health of all prisoners in their care .","Organisation of prison health care","CARDINAL ORG services in prison shall be organised in close relation with the general health administration of the community or nation .","CARDINAL ORG policy in prisons shall be integrated into , and compatible with , national health policy .","CARDINAL Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation .","CARDINAL ORG services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .","CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .","Medical and health care personnel","CARDINAL Every prison shall have the services of CARDINAL qualified general medical practitioner .","CARDINAL Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency .","...","CARDINAL Every prison shall have personnel suitably trained in health care .","Duties of the medical practitioner","CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission , and shall examine them unless this is obviously unnecessary .","...","CARDINAL When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to :","... ;","b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ;","...","PERSON isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment ;","...","CARDINAL NORP The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with health care standards in the community , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .","...","Health care provision","CARDINAL Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison .","CARDINAL Where a prison service has its own hospital facilities , they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment . \u201d","The complexity and importance of health care services in detention facilities was discussed by ORG for the Prevention of Torture in its ORG ( ORG ( CARDINAL ) CARDINAL - Publication Date : DATE ) . The following are the extracts from the Report :","\u201c CARDINAL . When entering prison , all prisoners should without delay be seen by a member of the establishment 's health care service . In its reports to date the ORG has recommended that every newly arrived prisoner be properly interviewed and , if necessary , physically examined by a medical doctor as soon as possible after his admission . It should be added that in some countries , medical screening on arrival is carried out by a fully qualified nurse , who reports to a doctor . This latter approach could be considered as a more efficient use of available resources .","It is also desirable that a leaflet or booklet be handed to prisoners on their arrival , informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene .","While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...","A prison 's health care service should at least be able to provide regular outpatient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) ... Further , prison doctors should be able to call upon the services of specialists .","As regards emergency treatment , a doctor should always be on call . Further , someone competent to provide first aid should always be present on prison LOC , preferably someone with a recognised nursing qualification .","Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .","The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital ...","A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .","There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist \/ nurse , etc . ) . ...","A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .","Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .","NORP The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ...","...","A prison health care service should ensure that information about transmittable diseases ( in particular hepatitis , AIDS , tuberculosis , dermatological infections ) is regularly circulated , both to prisoners and to prison staff . Where appropriate , medical control of those with whom a particular prisoner has regular contact ( fellow prisoners , prison staff , frequent visitors ) should be carried out . \u201d","A further elaboration of NORP expectations towards health care in prisons is found in the appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG on the ethical and organisational aspects of health care in prison ( adopted on DATE at the ORG meeting of ORG ) . Primarily restating ORG and ORG standards , the Recommendation went beyond reiteration of the principles in some aspects to include more specific discussion of the management of certain common problems including transmissible diseases . In particular , in respect of cases of tuberculosis , ORG stressed that all necessary measures should be applied to prevent the propagation of this infection , in accordance with relevant legislation in this area . Therapeutic intervention should be of a standard equal to that outside prison . The medical services of the local chest physician should be requested in order to obtain the long - term advice that is required for this condition , as is practised in the community , in accordance with relevant legislation ( Section CARDINAL ) .","The fact that transmissible diseases in NORP prisons have become an issue of considerable concern prompted a recommendation of ORG concerning prison and criminological aspects of the control of transmissible diseases and related health problems in prison ( adopted on DATE at the CARDINALth meeting of ORG ) . The relevant extracts from the Recommendation read as follows :","\u201c CARDINAL . The systematic medical examination carried out on entry into prison should include measures to detect intercurrent diseases , including treatable infectious diseases , in particular tuberculosis . The examination also gives the opportunity to provide health education and to give prisoners a greater sense of responsibility for their own health ....","Adequate financial and human resources should be made available within the prison health system to meet not only the problems of transmissible diseases and HIV \/ Aids but also all health problems affecting prisoners . \u201d","An expanded coverage of the issue related to transmissible diseases in detention facilities was given by ORG for the Prevention of Torture in its CARDINALth ORG ( ORG ( DATE ) CARDINAL published on DATE ) , a discussion prompted by findings of serious inadequacies in health provision and poor material conditions of detention which were exacerbating the transmission of the diseases . Addressing the issue , the ORG reported as follows :","\u201c CARDINAL . The spread of transmissible diseases and , in particular , of tuberculosis , hepatitis and HIV \/ AIDS has become a major public health concern in a number of NORP countries . Although affecting the population at large , these diseases have emerged as a dramatic problem in certain prison systems . In this connection the ORG has , on a number of occasions , been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem . Further , material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases .","The ORG is aware that in periods of economic difficulties - such as those encountered DATE in many countries visited by the ORG - sacrifices have to be made , including in penitentiary establishments . However , regardless of the difficulties faced at any given time , the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention , screening , and treatment . Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life - threatening diseases .","The use of up - to date methods for screening , the regular supply of medication and related materials , the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals , and the provision when appropriate of special diets , constitute essential elements of an effective strategy to combat the above - mentioned diseases and to provide appropriate care to the prisoners concerned . Similarly , material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health ; in addition to natural light and good ventilation , there must be satisfactory hygiene as well as an absence of overcrowding .","Further , the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds ...","In order to dispel misconceptions on these matters , it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff . Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures .","It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test . Further , it is axiomatic that patient - related information should be protected by medical confidentiality . As a matter of principle , any interventions in this area should be based on the informed consent of the persons concerned .","Moreover , for control of the above - mentioned diseases to be effective , all the ministries and agencies working in this field in a given country must ensure that they co - ordinate their efforts in the best possible way . In this respect the ORG wishes to stress that the continuation of treatment after release from prison must be guaranteed . \u201d","The ORG report on the visit to GPE carried out from DATE ( CPT \/ INF ( DATE ) CARDINAL ) provides as follows :","\u201c CARDINAL . The ORG is also seriously concerned by the practice of transferring back from GPE [ temporary detention facility ] to ORG [ temporary detention ward in police departments ] facilities prisoners diagnosed to have BK+ tuberculosis ( and hence highly contagious ) , as well as by the interruption of ORG treatment while at the ORG . An interruption of the treatment also appeared to occur during transfers between penitentiary establishments .","In the interest of combating the spread of tuberculosis within the law - enforcement and penitentiary system and in society in general , the ORG recommends that immediate measures be taken to put an end to the above - mentioned practice . \u201d","DATE . On DATE ORG published LAW no . PERSON , Volume I ) on a loan granted to GPE for its Tuberculosis and ORG . The relevant part of the ORG read as follows :","\u201c According to ORG ) , GPE was one of the CARDINAL high - burden countries for GPE in the world ( WHO , Global Tuberculosis control : ORG , GPE , DATE ) . The incidence of GPE increased throughout DATE . This was due to a combination of factors , including : ( i ) increased poverty , ( ii ) under - funding of TB services and health services in general , ( iii ) diagnostic and therapeutic approaches that were designed for a centralized command - and - control TB system , but were unable to cope with the social mobility and relative freedom of the post - NORP era , and ( iv ) technical inadequacies and outdated equipment . Migration of populations from ex - NORP republics with high GPE burdens also increased the problem . Prevalence rates were many times higher in the prison system than in the general population . Treatment included lengthy hospitalizations , variations among clinicians and patients in the therapeutic regimen , and frequent recourse to surgery . A shrinking health budget resulted in an erratic supply of anti - TB drugs and laboratory supplies , reduced quality control in GPE dispensaries and laboratories , and inadequate treatment . The social conditions favouring the spread of GPE , combined with inadequate systems for diagnosis , treatment , and surveillance , as well as increased drug resistance , produced a serious public health problem .","TB control in the former ORG ( GPE ) and in most of GPE in DATE was heavily centralized , with separate hospitals ( TB dispensaries ) , TB sanatoriums , GPE research institutes and GPE specialists . The system was designed in DATE to address the challenges of the TB epidemic . Case detection relied strongly on active mass screening by PERSON ( fluorography ) . Specificity , sensitivity , and cost - effectiveness considerations were not features of this approach . PERSON ( ORG ) immunization was a key feature of the TB control system ...","By DATE , there was CARDINAL - fold increase in GPE incidence , and mortality from GPE increased CARDINAL times , compared with DATE . The lowered treatment effectiveness of DATE resulted in an increase in the number of TB chronic patients , creating a permanent ' breeding ground ' for the infection . At that moment , the share of pulmonary GPE cases confirmed by bacterioscopy did not exceed PERCENT , and the share of such cases confirmed by culture testing was PERCENT due to suboptimal effectiveness of laboratory diagnosis , which led to poor detection of smear - positive GPE cases . Being a social disease , GPE affected the most socially and economically marginalized populations in GPE . \u201d","The following are the extracts from Treatment of Tuberculosis : ORG , DATE , pp . CARDINAL , CARDINAL and CARDINAL :","\u201c Treatment regimens have an initial ( intensive ) phase lasting DATE and a continuation phase usually lasting DATE . During the initial phase , consisting usually of CARDINAL drugs , there is rapid killing of tubercle bacilli . Infectious patients become non - infectious within DATE . Symptoms improve . The vast majority of patients with sputum smear - positive ORG become smear - negative within DATE . In the continuation phase fewer drugs are necessary but for a longer time . The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse .","In patients with smear positive pulmonary GPE , there is a risk of selecting resistant bacilli , since these patients harbour and excrete a large number of bacilli . Short - course chemotherapy regimens consisting of CARDINAL drugs during the initial phase , and CARDINAL drugs during the continuation phase , reduce this risk of selecting resistant bacilli . These regimens are practically as effective in patients with initially resistant organisms as in those with sensitive organisms .","In patients with smear negative pulmonary or extra - pulmonary ORG there is little risk of selecting resistant bacilli since these patients harbour fewer bacilli in their lesions . Short - course chemotherapy regimens with CARDINAL drugs during the initial phase , and CARDINAL drugs in the continuation phase , are of proven efficacy ...","Patients with sputum smear - positive pulmonary ORG should be monitored by sputum smear examination . This is the only group of GPE patients for whom bacteriological monitoring is possible . It is unnecessary and wasteful of resources to monitor the patient by chest radiography . For patients with sputum smear - negative pulmonary ORG and extra - pulmonary GPE , clinical monitoring is the usual way of assessing response to treatment . Under programme conditions in high GPE incidence countries , routine monitoring by sputum culture is not feasible or recommended . Where facilities are available , culture surveys can be useful as part of quality control of diagnosis by smear microscopy ...","Directly observed treatment is CARDINAL element of the ORG strategy , i.e. the ORG recommended policy package for ORG control . Direct observation of treatment means that a supervisor watches the patient swallowing the tablets . This ensures that a GPE patient takes the right drugs , in the right doses , at the right intervals ...","Many patients receiving self - administered treatment will not adhere to treatment . It is impossible to predict who will or will not comply , therefore directly observed treatment is necessary at least in the initial phase to ensure adherence . If a TB patient misses CARDINAL attendance to receive treatment , it is necessary to find that patient and continue treatment . \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-68114","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2005,"docname":"CASE OF INDRA v. SLOVAKIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 with regard to impartiality;Not necessary to examine Art. 6-1 with regard to fairness;Not necessary to examine under Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was served a notice of dismissal from job under LAW ( f ) of LAW for an especially serious breach of work discipline in that he had been absent from his work for DATE without an excuse .","On DATE GPE ORG ( then ORG , at present ORG s\u00fad ) rejected the applicant \u2019s request for a judicial ruling declaring the dismissal null and void .","On DATE a threejudge Chamber of ORG ( then ORG s\u00fad , at present PERSON s\u00fad ) dismissed the applicant \u2019s appeal and upheld the judgment of DATE . The ORG deciding on the appeal included judge S.","On DATE the applicant and his wife took civil proceedings against the legal successor of his former employer before the Bratislava I ORG . They sought the applicant \u2019s rehabilitation under LAW ( Law no . PERSON . - PERSON o mimos\u00fadnych rehabilit\u00e1ci\u00e1ch ) in respect of his dismissal in DATE .","In a judgment of DATE , following a hearing held on DATE , the Bratislava I ORG considered that the action aimed at obtaining a judicial order to the defendant to issue a formal confirmation that the applicant had been dismissed in DATE for politically motivated reasons and in violation of fundamental human rights and freedoms within the meaning of section CARDINAL ( CARDINAL ) of LAW . The court rejected the action as being unsubstantiated .","On DATE the applicant and his wife appealed to ORG and , on DATE , they supplemented the appeal ( odvolanie ) . They argued that ORG had misinterpreted the action in that it had not been aimed at obtaining a judicial order against the defendant , but at obtaining a declaratory judgment to the effect that the applicant \u2019s dismissal had been based on the grounds referred to in section CARDINAL ( CARDINAL ) of LAW . They further complained that ORG had overlooked the fact that the action had also been brought by the applicant \u2019s wife .","On DATE ORG quashed ORG judgment of DATE and remitted the case to ORG , holding that the latter had failed to determine the action insofar as it had been brought by the applicant \u2019s wife .","On DATE , following a hearing held on DATE , ORG again dismissed the action after examining testimonies of the parties , the applicant \u2019s personal file with his former employer and the casefile concerning the applicant \u2019s proceedings in DATE . ORG found it established that the applicant had been dismissed from his work in DATE for unauthorised absence for DATE , i.e. an especially serious breach of work discipline which had had no political subtext . In so far as the applicant relied on section CARDINAL \u00a7 CARDINAL ( c ) of the Extra - Judicial Rehabilitations Act , he had failed to prove that his dismissal had been for reasons of political persecution or in violation of generally recognised human rights and freedoms . ORG finally found that the applicant \u2019s wife had no cause of action in the case , in that the dismissal did not directly concern her .","On DATE the applicant and his wife filed an appeal with ORG and on DATE they submitted further particulars of the appeal . They argued that ORG had misinterpreted the action , incorrectly interpreted and assessed the facts and arbitrarily dismissed the action .","On DATE , following a hearing of the appeal held on DATE , ORG upheld ORG judgment of CARDINAL DATE and granted leave for an appeal on points of law to ORG . It held that ORG had adequately established the facts of the case and concurred with its factual and legal conclusions .","On DATE , through his lawyer , the applicant filed an appeal on points of law ( dovolanie ) with ORG . He argued that the lower courts had erred in their determination of the facts and law in his case .","In reply to the appeal on points of law , the defendant filed observations which however the courts did not transmit to the applicant .","On DATE a CARDINAL - judge ORG rejected the appeal on points of law after deliberating in camera . As to the defendant \u2019s observations in reply to the appeal on points of law , ORG noted that the defendant had invited ORG to reject that appeal as unfounded since the lower courts\u2019 decisions had been correct and the appeal had produced no new relevant information . ORG found that ORG and ORG had adequately established the relevant facts and fully endorsed their factual and legal conclusions . ORG further discerned no procedural or other flaws within the meaning of Articles CARDINAL and CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure . ORG included judge PERSON who had been a member of the threejudge Chamber of ORG that , on DATE , had rejected the applicant \u2019s appeal in the proceedings on his dismissal in DATE . No appeal lay against ORG judgment .","The purpose of LAW , as set out in LAW , is to endeavour to mitigate the consequences of certain injustices and property losses occurring between CARDINAL DATE and DATE by acts falling within the sphere of civil law and labour law , and by administrative acts incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG and LAW .","Pursuant to section DATE ( CARDINAL ) , legal acts terminating a person \u2019s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void . Under its letter ( c ) this provision applies , among others , to situations where the person concerned was dismissed under LAW ( Law no . CARDINAL\/CARDINAL Coll . ) , as amended by amendment no . CARDINAL\/CARDINAL Coll . , on the ground that he or she had acted in violation of the socialist social order and , therefore , lacked the confidence requisite for continuing in his or her function or position .","Section CARDINAL ( CARDINAL ) provides that the former employer or its legal successor shall issue , at the request of the person concerned , a certificate that the latter \u2019s contract of employment was terminated for reasons mentioned in LAW ( CARDINAL ) . Paragraph CARDINAL of this section entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within DATE .","The rules concerning disqualification of judges are laid down in ORG DATE . Under Article CARDINAL \u00a7 CARDINAL judges are disqualified from dealing with a case if there may be doubts about their impartiality in relation to the subjectmatter of the case , the parties to the proceedings or the GPE legal representatives .","Pursuant to LAW , as soon as a judge learns of facts disqualifying him or her from dealing with a case , he or she is to notify the president of the court accordingly without any delay .","Under LAW , parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case . It further confers a right on the parties to civil proceedings to state their views if the disqualification of a judge is being considered .","A decision on removal of a judge from a case is to be taken by a ORG of the higher instance court ( LAW ) .","Legal representation in civil proceedings by a lawyer ( advok\u00e1t ) is addressed in LAW . Pursuant to its paragraph CARDINAL the lawyer is obliged to make effective use of all available legal means in the interest of the party whom he or she represents .","The procedure in respect of appeals on points of law is defined in Part CARDINAL , LAW . Under LAW ( CARDINAL ) an appeal on points of law is available against final decisions of a court of appeal if the law so provides .","Pursuant to Article CARDINAL an appeal on points of law is admissible against any decision of the appellate court where :","( a ) the decision concerns a subject - matter which falls outside the jurisdiction of courts ,","( b ) a person acting as a party to the proceedings lacked capacity to be a party to court proceedings ,","( c ) a party to the proceedings lacked procedural capacity and was not duly represented ,","( d ) the same matter has been earlier determined by a final decision or if other proceedings in the same matter started earlier ,","( e ) no motion to institute proceedings has been filed despite the fact that such a motion was required by the law ,","( f ) a party has been prevented , by the appellate court \u2019s conduct , from acting before the court ,","( g ) the case was decided upon by a disqualified judge or the court \u2019s composition was incorrect .","Legal representation in appeals on points of law is mandatory ( LAW ) .","In accordance with LAW an appeal on points of law may only be based on the following grounds :","( a ) flaws in the proceedings as set out in LAW [ of LAW ] ,","( b ) other flaws in the proceedings which resulted in a wrong decision on the merits ,","( c ) a court \u2019s decision made on the basis of a factual finding which , to a substantial extent , is not supported by the evidence taken ,","( d ) a court \u2019s decision based on an erroneous legal assessment of the matter .","The scope of ORG examination of an appeal on point of law is in principle limited to the grounds of appeal as submitted by an appellant ( Article CARDINAL \u00a7 CARDINAL ) . Except for the flaws listed under Article CARDINAL and flaws that have resulted in an incorrect decision on the merits , ORG does not review ex officio any procedural flaws that have not been complained of by an appellant .","When determining an appeal on points of law , ORG in principle takes no evidence ( Article CARDINALa \u00a7 CARDINAL ) .","ORG dismisses the appeal on points of law if it finds that the decision of the court of appeal is correct . Otherwise it quashes the appellate decision ( LAW ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83783","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2007,"docname":"DUDNIK AND OTHERS v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The first applicant , Mr PERSON , was born in DATE . The second applicant , Mr PERSON , was born in DATE . The third applicant , Mr PERSON , was born in DATE . All CARDINAL applicants are NORP nationals . The first applicant lives in GPE \u2013 PERSON , the other CARDINAL live in GPE , GPE . They were represented before the ORG by Mr PERSON , who lives in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants had been receiving their old age pension at the time when they left GPE for permanent residence in GPE . Mr PERSON left on DATE , Mr Dobrov \u2013 on DATE and Mr GPE \u2013 on DATE . Before their departures , they had been paid , upon their written requests , their pensions for DATE in advance with consecutive termination of such payments in accordance with LAW .","In DATE and DATE the applicants wrote separate but similar complaints about the termination of their pension payments to ORG . The latter forwarded them to ORG of GPE . By letter of DATE to PERSON and by letters of DATE to PERSON and PERSON , ORG of GPE informed the applicants that the old age pensions could be paid to the citizens who resided permanently abroad only if there was a relevant international agreement with the particular ORG . In absence of such agreement with ORG , the payment of pensions to the applicants could not be renewed . The ORG further informed that ORG was in process of drafting such an agreement .","The relevant domestic law is summarised in the admissibility decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115213","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2012,"docname":"CASE OF GASSNER v. AUSTRIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Reasonable time)","judges":"Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicant was born in DATE and lives in ORG .","The applicant is a judge at ORG . In DATE he made a study visit to ORG in GPE . ORG paid his travel expenses and granted the applicant CARDINAL GPE special leave , in addition to which he took DATE of his DATE leave .","On DATE the Federal Minister of ORG informed the applicant on his return that it would not reimburse any of the additional expenses he had claimed in the meantime on DATE .","On DATE the applicant formally requested the reimbursement of further costs , incurred during the study visit , in particular the costs for his accommodation in the amount of NORP schillings CARDINAL,CARDINAL.CARDINAL ( ORG - CARDINAL,CARDINAL.CARDINAL euros ( ORG ) ) , and submitted additional records .","On DATE the Federal Minister dismissed the applicant \u2019s request on the grounds that the trip had not been an official journey \u2013 this having been made clear by the fact that the applicant had taken some annual leave during that period .","On DATE the applicant filed a complaint with ORG . He submitted that the Federal Minister had interpreted the relevant law incorrectly and that if he had properly assessed the evidence he would have concluded that the study visit to GPE had to be treated as an official journey .","On DATE ORG quashed the Federal Minister \u2019s decision finding that the President of ORG had been the authority competent to decide on the request for reimbursement at first instance , rather than the Federal Minister .","Thereupon , the matter was transferred to the President of ORG who requested the applicant and the Federal Minister to submit explanations regarding the study visit .","On DATE the applicant lodged a complaint ( S\u00e4umnisbeschwerde ) with ORG against the alleged failure of the President of ORG to decide on his request within the statutory DATE time - limit .","On DATE ORG rejected the complaint because the applicant had not made a prior request under LAW of ORG for jurisdiction to be transferred to the Federal Minister of Justice as the authority responsible for hearing appeals .","On DATE the President of ORG dismissed the applicant \u2019s request for reimbursement of the costs of his accommodation in GPE on the grounds that the applicant had not been given instructions for an official journey and had not performed any official duties during his stay in GPE . Therefore he was not entitled to reimbursement of his costs .","On an unspecified date the applicant appealed against that decision to the Federal Minister of ORG .","On DATE the Federal Minister dismissed the applicant \u2019s appeal , confirming the findings in the first - instance decision .","On DATE the applicant filed a complaint with ORG against the ORG decision . He submitted that while acknowledging that his trip had been in the interest of his official duties ( dienstliches Interesse ) , the Minister had incorrectly assumed that the applicant \u2019s study visit was not to be treated as an official journey . The applicant did not ask for a hearing before ORG .","On DATE ORG dismissed the applicant \u2019s complaint , finding that the Minister had correctly assessed the evidence before him and had correctly concluded that the applicant \u2019s study trip had not been treated as an official journey .","Civil servants are entitled under LAW ( Reisegeb\u00fchrenvorschrift ) to reimbursement of their expenses for official journeys . Under LAW of these Rules it is an official journey if a civil servant travels to a place which is different from his official duty station ( ORG ) in order to comply with a given instruction ( PERSON ) .","Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities\u2019 duty to decide . Its relevant part reads as follows :","\u201c ( CARDINAL ) Subject to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at DATE after the application or appeal has been lodged .","( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party \u2019s written request . ... \u201d","NORP The relevant provisions of LAW ( PERSON ) relating to the application against the administration \u2019s failure to decide read as follows :","Section CARDINAL","\u201c An application under LAW for breach of the duty to decide ( application against the administration \u2019s failure to decide ) can be lodged only when the highest authority to which an application can be made in administrative proceedings , either by way of an appeal or an application for transfer of jurisdiction , ... has been applied to by a party and has not made a decision on the matter within DATE . ... \u201d","Section CARDINAL","\u201c ( CARDINAL ) On an application against the administration \u2019s failure to decide under LAW of LAW the relevant authority is to be ordered to give a decision within DATE and either produce to ORG a copy of the decision or state why in its opinion there has not been a breach of the duty to decide . The time - limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time - limit . If a decision is made within the prescribed time - limit , the proceedings in respect of the application against the administration \u2019s failure to decide shall be stayed . \u201d","Section CARDINAL","\u201c ( CARDINAL ) Subject to any contrary provision of LAW , the ORG shall give a judgment in all cases .","...","( CARDINAL ) In respect of applications under LAW , ORG may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time - limit which must not exceed DATE . If ORG does not use that possibility or the authority in question fails to comply with the order , the ORG shall rule on the application against the administration \u2019s failure to decide by giving a judgment on the merits , for which it shall have full discretion in the administrative authority \u2019s stead . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82728","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF NIECKO v. POLAND","importance":4,"conclusion":"Violation of Art. 5-3","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant was arrested on suspicion of having committed a number of offences in an organised criminal group .","On DATE ORG remanded the applicant in custody . The applicant 's detention was subsequently prolonged by the courts on DATE , DATE , DATE , DATE and DATE .","On DATE ORG ordered that the applicant and his CARDINAL co - accused be kept in custody until DATE . It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged . ORG also found that there was a reasonable risk that the applicant would obstruct the proceedings , given the serious nature of the charges and the fact that they concerned an organised criminal group . It further relied on the severity of the anticipated penalty and the complexity of the case .","On DATE the prosecution filed with ORG a bill of indictment against the applicant . The applicant was charged , inter alia , with acting in and leading an organised armed criminal group , ordering murder , extortion and supplying drugs .","On DATE ORG extended the applicant 's detention until DATE , referring to the severity of the anticipated penalty .","On DATE ORG prolonged the applicant 's detention until DATE . In addition to the grounds invoked in the detention order of DATE , ORG relied on the complexity of the case and the number of charges .","On DATE ORG ordered that the applicant and CARDINAL of his co - accused be held in custody until DATE . It invoked the same grounds as in its earlier decision .","On DATE ORG prolonged the applicant 's detention until DATE . In addition to the grounds previously invoked , it held that the volume of evidence and the need to proceed smoothly with the trial justified the applicant 's continued detention .","On DATE ORG extended the applicant 's detention until DATE . It observed that holding the applicant in custody was the only measure which could secure the proper conduct of the proceedings , having particular regard to the security of anonymous witnesses who had been heard in the proceedings . It also considered that the case was particularly complex within the meaning of Article CARDINAL \u00a7 CARDINAL of LAW .","The applicant 's detention was subsequently prolonged by ORG on DATE ( until DATE ) and CARDINAL March CARDINAL ( until DATE ) . The court invoked the same grounds as in its earlier decisions .","On DATE the Court of Appeal prolonged the applicant 's detention until DATE . Having regard to the organised character of the alleged criminal activities , it held that the applicant 's detention was necessary in order to prevent him and the other co - accused from interfering with the proceedings . On DATE ORG ordered that the applicant be held in custody until DATE . It relied on the same grounds as previously .","The trial court held CARDINAL hearings . On DATE ORG delivered a judgment . It convicted the applicant of most of the charges and acquitted him of one charge ( ordering murder ) . It sentenced him to DATE imprisonment and a fine .","The applicant appealed against the first - instance judgment . He remained in detention pending appeal . On DATE ORG upheld ORG judgment for the most part . It remitted the case only in respect of CARDINAL charge of which the applicant had been acquitted .","In the course of the proceedings the applicant filed a number of applications for release on health grounds . However , the courts , having regard to the relevant expert reports , refused all those applications . He also unsuccessfully appealed against decisions prolonging his detention on remand .","The relevant domestic law and practice regarding the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE and PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76467","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF SOKURENKO AND STRYGUN v. UKRAINE","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["The applicants live in the village of GPE , the ORG region , GPE .","In DATE the \u201c Agro - Ros \u201d Ltd company instituted CARDINAL sets of proceedings against ORG and each of the applicants , challenging the decision of the ORG to provide the applicants with certain plots of land .","By CARDINAL decisions of CARDINAL DATE , ORG found against the applicants . On DATE ORG dismissed the applicants\u2019 appeals and upheld the decisions of the first - instance court .","On DATE the Higher Commercial Court of GPE , upon the ORG appeals , quashed the decisions of the lower courts and remitted the case for a fresh consideration .","On CARDINAL DATE ORG of GPE , upon appeal of the \u201c ORG company , quashed the resolutions of ORG ( \u043f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u0438 ORG \u0433\u043e\u0441\u043f\u043e\u0434\u0430\u0440\u0441\u044c\u043a\u043e\u0433\u043e \u0441\u0443\u0434\u0443 ) on the ground that the findings of ORG had not corresponded to the factual circumstances and had been unfounded and erroneous , and upheld the resolutions of ORG .","The relevant extract of the LAW of GPE reads as follows :","\u201c State power in GPE is exercised on the principles of its division into legislative , executive and judicial power .","Bodies of legislative , executive and judicial power exercise their authority within the limits established by this LAW and in accordance with the laws of GPE . \u201d","\u201c ORG in GPE is administered exclusively by the courts ...","The jurisdiction of the courts extends to all legal relations that arise in the ORG .","Judicial proceedings are performed by ORG and courts of general jurisdiction ... \u201d","\u201c In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .","ORG is the highest judicial body in the system of courts of general jurisdiction ... \u201d","\u201c ... The main principles of judicial proceedings are :","CARDINAL ) legality ... \u201d","The relevant provisions of the LAW ( in the wording of DATE ) read as follows :","\u201c CARDINAL . ORG of GPE is the highest judicial body within the system of courts of general jurisdiction ...","ORG of GPE shall :","CARDINAL ) review ... the cases under the cassation procedure in the situations established by law ...","CARDINAL ) exercise other powers pursuant to the law . \u201d","The Code of Commercial Procedure ( formerly Arbitration Procedure ) was significantly reworded on DATE . At that time the fourth level of jurisdiction was introduced in the Commercial Procedure . According to the relevant provisions of the LAW , a cassation appeal to ORG , similar to the CARDINAL found in other member ORG , and a second ( or repeated ) cassation appeal to ORG are now available to the parties in a commercial case . The Commercial Procedure is the only judicial procedure of GPE where the fourth level of jurisdiction exists and where ORG acts as a second cassation instance ( in criminal and civil procedures it acts as an ordinary court of cassation and in administrative and administrative offences\u2019 procedures , it performs only extraordinary review ) .","The relevant provisions of LAW ( in the wording of CARDINAL DATE ) read as follows :","\u201c A commercial court shall nullify proceedings in the case , if","CARDINAL ) a dispute is not subject to examination in the commercial courts of GPE ; ... \u201d","\u201c The parties to a case as well as the Prosecutor General of GPE have the right to appeal in cassation to ORG of GPE against the resolution of ORG of GPE adopted following the review of a decision of a first instance commercial court , that has entered into force , or a resolution of ORG , [ as well as the ruling of ORG of GPE on return of the appeal ( request for review ) in cassation ] . \u201d","\u201c ORG of GPE reviews in cassation the resolutions [ or rulings ] of ORG of GPE if they are appealed against :","CARDINAL ) NORP on the basis of the application by ORG of GPE of a law or normative act which contravenes LAW ;","CARDINAL ) where a decision contravenes decisions of ORG of GPE or of a higher court of a different specialisation on the issue of the application of the norms of substantive law ;","CARDINAL ) where it is revealed that ORG of GPE has applied the same provision of the law or any other normative act differently in similar cases ;","[ DATE ) due to the inconsistency of the resolutions or rulings with the international treaties of GPE agreed as binding by PERSON of GPE ; ]","CARDINAL ) where an international judicial body whose jurisdiction is recognised by GPE finds that a resolution [ or ruling ] has violated the international obligations of GPE . \u201d","\u201c ... The resolution [ or ruling ] of ORG of GPE shall be reviewed in cassation on the basis of the rules for consideration of the case in the first - instance commercial court , save for","\u201c ORG of GPE , following consideration of an appeal in cassation , or a request for review in cassation lodged by ORG against a resolution [ or ruling ] of ORG of GPE , shall be entitled to :","CARDINAL ) NORP leave the resolution [ or ruling ] unchanged and dismiss the appeal ( request ) ;","CARDINAL ) NORP quash the resolution and remit the case to the first - instance court for further consideration [ or quash the ruling and remit the case for further consideration to ORG ] ;","CARDINAL ) NORP quash the resolution [ or ruling ] and nullify the proceedings in the case . \u201d","\u201c The resolutions [ or rulings ] of ORG of GPE shall be quashed if they contravene LAW , international treaties agreed as binding by PERSON of GPE , or if the substantive law has been misapplied otherwise . \u201d","\u201c ... A resolution of ORG of GPE shall be final and shall not be subject to appeal . \u201d","\u201c Instructions , contained in the resolution of ORG of GPE , shall be binding for the first - instance court during a new consideration of the case [ and for ORG of GPE during consideration of the materials of the appeal in cassation or the request for review in cassation ] .","The resolution of ORG , following a re - examination of the case on the basis of an appeal in cassation against the resolution [ or ruling ] of ORG of GPE shall not include instructions as to the admissibility or inadmissibility of evidence , the superiority of CARDINAL type of evidence over another , the norms of substantive [ or procedural ] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57443","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":1985,"docname":"CASE OF B\u00d6NISCH v. AUSTRIA","importance":2,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 6-2;Just satisfaction reserved","judges":"","text":["ORG The applicant , who is a citizen of GPE born in DATE , lives in GPE . He runs a firm that specialises in meat smoking . He bought the production plant from the firm PERSON , which was thereafter called PERSON , following the death of Mr. PERSON in DATE .","ORG Mr. PERSON had been reported under the then applicable legislation to the prosecuting authorities by ORG ( Bundesanstalt f\u00fcr GPE - \" the Institute \" ) for suspected offences resulting from the technique he used for smoking meat . In DATE , during the course of these proceedings , ORG had been asked to draw up an expert report ( GPE ) . In this report , the maximum quantity permissible in smoked meats of a carcinogenic substance called benzopyrene CARDINAL was stated to be CARDINAL part per ( NORP ) billion ( \" ppb \" ) .","ORG After Mr. PERSON had bought the firm , similar complaints were lodged with the prosecuting authorities . These led to the prosecution of the applicant before ORG of Vienna ( CARDINAL DATE and DATE ) and before ORG of GPE ( DATE ) . Basing themselves mainly on the expert opinions of ORG ( see paragraph CARDINAL below ) , these courts came to the conclusion that the products prepared with the impugned smoking technique were dangerous to health because they contained an excessive quantity - more than one ppb - of benzopyrene CARDINAL and that their distribution consequently constituted an infringement of section CARDINAL(CARDINAL ) of LAW DATE ( \" LAW \" ) . It was further found that the products were adulterated ( verf\u00e4lscht ) by reason of an excessive water content not apparent to the consumer , whereby they also contravened section CARDINAL ( CARDINAL ) , no . CARDINAL , of LAW . Mr. PERSON was accordingly convicted . His appeals against these decisions , which are not in issue in the present case , were unsuccessful .","ORG In DATE , ORG of GPE drew CARDINAL samples of smoked meat from the production of the PERSON company , leaving CARDINAL counter - samples from the same pieces to the applicant ( see paragraph CARDINAL below ) . The ORG was entrusted with carrying out the analysis of these samples . In its analysis , which was carried out on DATE , the ORG found a benzopyrene concentration of CARDINAL and QUANTITY respectively and an excessive water content . The samples were therefore described as being dangerous to health and adulterated . This opinion by ORG , which had been drafted on DATE by the Director of the Institute , amounted to the lodging of a complaint ( ORG ) ; it was transmitted by ORG to the prosecuting authorities with a view to the institution of criminal proceedings .","ORG The case came before the same judge of ORG who in DATE had dealt with an earlier case against the applicant ( see paragraph CARDINAL above ) . Pursuant to section CARDINAL of LAW , he again appointed PERSON ORG as expert in order to hear him in connection with the opinion submitted . On DATE , Mr. PERSON challenged both the judge and the expert ; in his contention , the conduct of the proceedings had shown that both were biased against him and resolved to disregard his rights of defence , in particular the right - guaranteed by LAW witnesses and experts for the defence under the same conditions as those for the prosecution . In addition , the applicant asked for the hearing of several experts .","On DATE , the President of ORG rejected the challenge concerning the investigating judge on the ground that it was unfounded . However , he did not formally examine the challenge concerning the expert , who in fact took part in the proceedings .","ORG On DATE , at the request of Mr. PERSON , ORG heard as witness Mr. PERSON , the Director of ORG . According to written evidence submitted by this ORG after analysis of the CARDINAL counter - samples , the concentration of benzopyrene was QUANTITY ppb respectively , and there was accordingly no reason for any objections .","In reply to questioning by both the judge and the expert , the witness explained in detail the method of analysis applied by his ORG , which was very similar to that used by ORG .","The expert thereafter developed his personal opinion . As regards the benzopyrene concentration , he pointed out that the method employed by ORG was subject to criteria which were especially stringent and rigorously controlled ; its degree of accuracy was maximised and the margin of error did not exceed MONEY . On the other hand , he criticised the method used by the witness ; in his view , the margin of error had to be considerable as the results obtained from each of the CARDINAL counter - samples differed greatly , whereas the ORG \u2019s analysis showed analogous results in both instances . He emphasised that the products made by Mr. PERSON \u2019s firm showed a water content of MONEY , whereas , according to LAW ( Codex PERSON ) , it should not have exceeded MONEY .","On his side , Mr. PERSON , who was not represented by a lawyer , stated that a water content below MONEY was technically unattainable and requested the hearing of a meat and sausage expert on this point . ORG however refused this , on the ground that black smoking was forbidden if the water content could not be limited to the required level .","ORG In a judgment delivered DATE ( DATE ) , ORG found the applicant guilty of offences under section CARDINAL(CARDINAL ) , ORG . CARDINAL and CARDINAL , and section CARDINAL ) , no . CARDINAL , of LAW and accordingly sentenced him to CARDINAL months\u2019 imprisonment . It particularly stressed that , at the time of the takeover of the firm , ORG had informed Mr. PERSON of the requirements of LAW , that the applicant was aware of the criminal proceedings instituted against his predecessor and that , moreover , he too had been the subject of criminal proceedings for the same reasons but had nonetheless continued his production without changing method .","ORG considered that the expert opinion of the Director of the ORG was conclusive and that there were no doubts as to the reliability of his findings . It shared his view that the different results at which ORG had arrived were erroneous . Even allowing for a margin of error of MONEY in the ORG \u2019s findings , it held that the concentration of benzopyrene in the applicant \u2019s products was by far in excess of the permissible level ( QUANTITY ) . The carcinogenic effects of this substance were found to have been established by ORG ( see paragraph CARDINAL above ) ; the evidence to the contrary adduced by the applicant - in particular letters from CARDINAL NORP experts and a publication written by CARDINAL other experts - did not seem convincing to it .","ORG Mr. PERSON appealed . In essence , he took issue with the Director of the Institute for not having adhered to the opinion of his colleagues , which - in Mr. PERSON \u2019s view - nevertheless reflected the prevailing view , and submitted that the Director was biased . He also raised objections of principle against the appointment as court expert of the very person who had reported the case to the prosecuting authorities , and complained that this person had been heard as a court expert whereas Mr. PERSON had appeared as a mere defence witness ; this seemed to him contrary to the requirements of LAW . In addition , he requested the hearing of several experts .","ORG rejected the appeal on DATE . As to the carcinogenic effects of benzopyrene , it noted that ORG had based its decision on the opinion of ORG , which , according to settled case - law , could not be contested . Apart from that , ORG had extensively dealt with all relevant aspects of the case before holding that the products made by the applicant were adulterated and dangerous to health . The findings of ORG were not open to doubt as they were based on the detailed explanations of the expert . As the latter had already refuted Mr. PERSON \u2019s arguments , it was not necessary to take any additional evidence on the adulterated and dangerous character of the said products . In particular , ORG ruled out the hearing of a counter - expert since the expert opinion obtained in the first - instance proceedings was not tainted with any defects ( Articles CARDINAL and CARDINAL of LAW ) . Finally , it rejected the challenge of ORG as expert ( LAW ) .","ORG Following analysis of samples taken in DATE and DATE from products made by the applicant \u2019s firm , the ORG once more found an excessive concentration of benzopyrene ( QUANTITY ppb ) and an undeclared high water - content .","Criminal proceedings were accordingly instituted against the applicant before ORG . The case came before the same judge as before , who again appointed the Director of the ORG as expert pursuant to section CARDINAL of LAW .","Hearings were held on DATE . Invoking Article CARDINAL ( article CARDINAL ) of the LAW , Mr. PERSON unsuccessfully challenged the expert . ORG pointed out that LAW required the appointment of an expert from the staff of the ORG ; it added that even though the Director had previously given opinions unfavourable to applicant , this did not substantiate the challenge .","The expert then presented his report . When ORG examined him on recent research said to support the views of the applicant , he acknowledged that this research had arrived at less emphatic results on the carcinogenic effects of benzopyrene ; but , according to him , this did not cause the opinion of ORG to lose any of its validity in the particular circumstances . In reply to defence counsel \u2019s questions , he explained the method for analysing foodstuffs used by ORG , which made it possible to detect MONEY of benzopyrene ; he conceded that this method differed from the one used by ORG , but declared himself not to be bound by the findings of a foreign authority . The defence asked for the hearing of witnesses on the subject ; ORG did not accede to this request , considering itself sufficiently informed through the opinions of ORG and the expert from ORG .","ORG On DATE ( DATE ) , ORG found the applicant guilty of offences against sections CARDINAL and CARDINAL of LAW . For reasons almost identical to those stated in the judgment of DATE ( see paragraph CARDINAL above ) , it sentenced him to DATE imprisonment .","ORG Mr. PERSON appealed from this decision on grounds similar to those pleaded in the first proceedings ( see paragraph CARDINAL above ) .","ORG dismissed the appeal on DATE . In its view , the appointment of a particular person as expert was not prohibited unless the person lacked competence to give evidence as a witness ( Article CARDINAL ) , no . CARDINAL , of LAW ) ; apart from this , the applicant had failed to adduce any reasons casting doubt on the impartiality and professional qualifications of ORG . Whilst the Director had admittedly already formulated opinions unfavourable to the applicant on several occasions , this did not warrant his being challenged , as ORG had rightly noted . As regards the alleged violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , the Court of Appeal emphasised that section CARDINAL of the CARDINAL Act required that the official of the ORG who had analysed the samples taken or drawn up the report should be appointed as expert . Rejecting the request for counter - expertise made by Mr. PERSON , ORG reiterated , as far as the remaining issues were concerned , the reasoning contained in its judgment of DATE ( see paragraph CARDINAL above ) .","ORG On DATE , the Federal President , exercising his power to grant a pardon , commuted the CARDINAL prison sentences imposed on the applicant to fines of CARDINAL and QUANTITY ( see paragraphs CARDINAL and CARDINAL above ) .","ORG Under the terms of LAW , ORG of a city shall periodically draw samples of foodstuffs and send them for analysis to ORG ( section CARDINAL ) , making available a sealed counter - sample to be used by any private expert that the firm subjected to control might wish to consult . This expert must possess special professional qualifications and have a special authorisation from ORG ( sections CARDINAL and CARDINAL ) .","Several members of the ORG \u2019s staff are involved in the examination of the samples , for which purpose standard scientific techniques are employed . The various results are submitted to the Director of ORG , who draws up a report .","If the ORG has cause to suspect the commission of an offence , it must state so in its report and notify the responsible authorities ( section CARDINAL ) . In practice , the report ( Anzeigegutachten ) is sent to ORG , which in such cases transmits it to the public prosecutor \u2019s department . The prosecuting authorities have to decide whether or not criminal proceedings should be brought , but they usually adhere to the ORG \u2019s opinion .","ORG Whilst the provisions of LAW are applicable in such cases , section CARDINAL of the CARDINAL Act involves a derogation from them in so far as expert evidence is concerned :","\" If the court has doubts concerning the findings or the opinion of a ORG or if it considers that such findings or opinion need to be amplified or if justifiable objections have been raised in respect thereof , it shall hear as expert the official of the said ORG who carried out the analysis or drew up the report for the purpose of explaining and supplementing the findings or the report ... In all other respects , expert evidence shall be governed by the provisions of LAW ... \"","Under LAW , the prosecuting authorities and the accused are to be informed of the names of the experts appointed by the court ; should they raise valid objections , other experts are to be consulted .","Thus , the court is bound to appoint CARDINAL of the ORG \u2019s officials who carried out the analysis or formulated the opinion . This official may be the person who drew up the report which served as the complaint prompting the criminal proceedings ; such a circumstance is not capable of giving cause for a challenge . Should there be other grounds , such as a personal bias against the accused , the expert may be replaced by another official of ORG who took part in the analysis and in the drafting of the opinion .","If any doubts persist or if the findings of these experts \" are unclear , vague , contradictory \" , etc . ( Articles CARDINAL and CARDINAL of LAW ) , the court may call another expert .","Under the terms of LAW , only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts . Nevertheless , the court may authorise experts to examine witnesses and the accused . Witnesses , on the contrary , do not have this possibility .","ORG The provisions of LAW , as well as certain practices followed by the courts and the Institutes , have been the subject of controversy in academic writings and on the occasion of an enquiry organised in DATE by ORG . The matter was debated in ORG prior to the passing of the LAW and subsequently in DATE when a proposed amendment to section CARDINAL was examined ( see paragraph CARDINAL above ) . This amendment , which was not in fact adopted , provided that both the ORG \u2019s expert and any private expert called by the accused were to be heard only as witnesses and that , in case of doubt , an independent expert should be appointed .","The receipt by ORG officials of certain bonus payments also gave rise to some discussion which subsequently provoked their discontinuance ( see paragraphs CARDINAL - CARDINAL , DATE , DATE and CARDINAL of the Commission \u2019s report , paragraph CARDINAL of the applicant \u2019s memorial and point ORG memorial ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95543","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2009,"docname":"KOVACOVA AND OTHERS v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicants , whose particulars appear in the Appendix , are CARDINAL NORP nationals . ORG of GPE ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants\u2019 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\u2019 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 \u201c garden community \u201d consisting of individual gardens which were put at the disposal of third parties , members of GPE ( \u201c the gardeners \u201d ) . 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\u2019 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\u2019 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\u2019 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 u\u017e\u00edvan\u00ed pozemkov v zriaden\u00fdch z\u00e1hradkov\u00fdch osad\u00e1ch a vyporiadan\u00ed vlastn\u00edctva k nim \u2013 \u201c PERSON no . CARDINAL \u201d ) 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 \u2019s plan concerning the current state of the land ( \u201c the preliminary inventory \u201d ) . 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\u2019 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\u2019 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 \u2019s 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\u2019 action challenging the lawfulness of the administrative authorities\u2019 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\u2019 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\u2019 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\u2019 drive of the town centre and the locality was a popular residential area for the town \u2019s inhabitants .","At the Government \u2019s 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 , \u00a7 \u00a7 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. \u00daS CARDINAL delivered on DATE ORG , with reference to LAW and CARDINALc \u00a7 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 . \u00daS 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\u2019 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 ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-112306","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2012,"docname":"CASE OF MARIN KOSTOV v. BULGARIA","importance":4,"conclusion":"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)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["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 \u2019s and ORG statements and the report of a prison employee . The court further noted that the written statements of the witnesses corroborated the director \u2019s conclusions and did not support the applicant \u2019s account of the events . As to the punishment , it had been determined with due regard to the gravity of the offence and the applicant \u2019s 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 \u2019s 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 \u2019s and ORG statements and the report of a prison employee . The court further noted that the written statements of the witnesses corroborated the director \u2019s conclusions and did not support the applicant \u2019s account of the events . As to the punishment , it had been determined with due regard to the gravity of the offence and the applicant \u2019s 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 \u2019s statements to the public prosecutor defamatory and on DATE punished him with CARDINAL days\u2019 isolation in a disciplinary cell . He also justified the punishment on grounds of the applicant \u2019s 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 \u2019s 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 \u2019s 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 \u201c ORG \u201d ) . 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 \u2019s 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 ( \u201c the ORG \u201d ) , as amended in DATE , provides as follows :","\u201c 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 . \u201d","The relevant extracts from the Recommendation on ORG read as follows :","\u201c 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 . \u201d"],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60996","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2003,"docname":"CASE OF KLAMECKI v. POLAND (No. 2)","importance":3,"conclusion":"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","judges":"Christos Rozakis","text":["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 ( S\u0105d 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 Wojew\u00f3dzki ) 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 ( S\u0105d Wojew\u00f3dzki ) 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 \u201c Relevant domestic law and practice \u201d 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 Wroc\u0142aw - \u015ar\u00f3dmie\u015bcie 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 \u2013 but likewise unsuccessful \u2013 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 ( S\u0105d Najwy\u017cszy ) , 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 \u201c wanted \u201d 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 \u201c would be very grateful if [ he ] could obtain an explanation as to what for and for whom [ he ] was needed to be prison \u201d . 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 \u201c censored \u201d ( 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 \u201c censored \u201d .","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 \u201c censored \u201d .","On DATE and DATE the applicant sent CARDINAL letters to ORG . The envelopes were cut open . They bear the stamp \u201c censored \u201d .","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 \u201c censored \u201d . 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 : \u201c censored \u201d .","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 : \u201c censored \u201d . 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 Wroc\u0142aw - \u015ar\u00f3dmie\u015bcie 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 \u2013 Code of Criminal Procedure ( \u201c the Code \u201d ) ( PERSON post\u0119powania karnego ) \u2013 entitled \u201c Preventive measures \u201d ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the \u201c GPE Procedure \u201d ) , 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 ( \u201c the DATE Law \u201d ) 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 :","\u201c 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 . \u201d","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 \u201c preventive measures \u201d , 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 :","\u201c 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 . \u201d","Article CARDINAL \u00a7 CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided :","\u201c 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 .","... \u201d","On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL \u00a7 CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :","\u201c ( 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 ] . \u201d","Paragraph CARDINAL of Article CARDINAL provided :","\u201c 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 . \u201d","The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL \u00a7 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 \u00a7 CARDINAL provided :","\u201c 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 . \u201d","Article CARDINAL stated :","\u201c 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 . \u201d","The provisions for \u201c mandatory detention \u201d ( 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 :","\u201c 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 . \u201d","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 :","\u201c 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 . \u201d","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 :","\u201c ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... \u201d","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 ( \u201c postanowienie \u201d ) \u2013 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 ( Ma\u0142a PERSON ) . Article CARDINAL of the LAW affirmed the principle of the separation of powers in the following terms :","\u201c 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 . \u201d","The PERSON of DATE ( as amended ) on ORG LOC o ustroju s\u0105d\u00f3w powszechnych ) in the version applicable at the material time provided , in LAW","\u201c CARDINAL . Courts of law shall dispense justice in GPE .","Courts of law shall be courts of appeal , regional courts and district courts . \u201d","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 :","\u201c 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 . \u201d","Chapter III of the PERSON entitled : \u201c Parties to proceedings , defence counsel , representatives of the victims and representatives of society \u201d 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 . W\u0142och v. GPE , no . CARDINAL , judgment of DATE , \u00a7 \u00a7 CARDINAL ) .","Articles CARDINAL of LAW of DATE ( the Code is no longer in force ; it was repealed and replaced by the \u201c new \u201d 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 , \u00a7 \u00a7 CARDINAL - CARDINAL ) ."],"violated_articles":["5","8"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22108","languageisocode":"ENG","respondent":"ESP","branch":"ADMISSIBILITY","date":2001,"docname":"HILL v. SPAIN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["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 casaci\u00f3n ) 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\u2019 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 \u00a7 CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL ( c ) and CARDINAL of the LAW . In the subsequent response given to the Human Rights Committee\u2019 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 revisi\u00f3n ) 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 ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90636","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2008,"docname":"VITRENKO AND OTHERS v. UKRAINE","importance":3,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva;Zoryana Bortnovska","text":["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 \u201c CARDINAL + CARDINAL Channel \u201d ) 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 \u201c She [ Ms Tymoshenko ] definitely knew that I would prove that she was a thief ( \u0432\u043e\u0440\u043e\u0432\u043a\u0430 ) , 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 \u201d .","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 \u201c ORG \u201d ) 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 \u201c [ t]o confirm ( \u043d\u0430 \u043f\u0456\u0434\u0442\u0432\u0435\u0440\u0434\u0436\u0435\u043d\u043d\u044f ) the words said by me with respect to [ Ms ] PERSON in the live broadcast of GPE during the TV debates on DATE \u201d . 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 \u201c [ s]ince I used the word \u201c thief \u201d in its other generally accepted meaning , to confirm ( \u043d\u0430 \u043f\u0456\u0434\u0442\u0432\u0435\u0440\u0434\u0436\u0435\u043d\u043d\u044f ) the words said by me with respect to [ Ms ] PERSON in the live broadcast on the CARDINAL + CARDINAL \u201d Channel during the TV debates on DATE ... \u201d . 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 \u201c she is a thief \u201d and \u201c she will never wash out her guilt \u201d 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 \u201c thief \u201d had been used to criticise the \u201c political amorality \u201d 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 :","\u201c 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 ... \u201d","The relevant extracts of the recommendation read as follows :","\u201c 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 . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72219","languageisocode":"ENG","respondent":"DNK","branch":"ADMISSIBILITY","date":2006,"docname":"HINGITAQ 53 AND OTHERS v. DENMARK","importance":1,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicants are CARDINAL individuals from LOC in GPE , and PERSON , a group that represents the interests of relocated PERSON ( the Thule Tribe ) and their descendants in a legal action against ORG . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .","s , may be summarised as follows .","The population of GPE ( CARDINAL ) is predominantly NORP , a people bearing an affinity and solidarity with the NORP populations of GPE , GPE and LOC .","In the north - west of GPE the NORP people are PERSON ( also known as ORG ) , a people living from hunting and fishing , who entered GPE from GPE in DATE ORG . They lived completely isolated until DATE , following which they received visits by whalers and expeditions .","In DATE the NORP polar researcher PERSON established a commercial trading station and privately initiated a colonisation of the area , which he called LOC . By a decree of CARDINAL DATE LOC was incorporated into the NORP colonial area in GPE . In order to preserve the people \u2019s way of living , in DATE PERSON established ORG ( PERSON ) , which adopted the \u201c Laws of the FAC \u201d . In DATE GPE took over the trading station .","During World War II , after the NORP occupation of GPE in DATE , GPE ( \u201c the GPE \u201d ) invoked ORG in respect of GPE and reached an agreement in DATE with the NORP minister at GPE that permitted the establishment of GPE military bases and meteorological stations . Thus , in DATE , among other places in GPE , a so - called weather station was built in LOC . It appears that ORG received a sum of QUANTITY ( ORG ) in compensation for this .","After the war , GPE and the GPE signed a treaty on the defence of GPE , which was approved on CARDINAL DATE by ORG ( called Rigsdagen at the relevant time ) and entered into force on DATE .","Consequently , an NORP air base was established at LOC in the LOC amidst the applicants\u2019 hunting areas and in the vicinity of the applicants\u2019 native village site , ORG ( then called PERSON ) .","As part of the base a QUANTITY airstrip was built , together with housing and facilities intended to accommodate CARDINAL people . There appears to be dispute as to the exact size of the defence area at the relevant time and how much of it the PERSON were excluded from . The applicants alleged that the defence area amounted to QUANTITY .","It is common ground , however , that PERSON access to hunting and fishing was increasingly restricted and that the activities at the base eventually had a detrimental effect on the wildlife in the area .","In DATE the GPE wished to establish an anti - aircraft artillery unit as well and requested permission to expand the base to cover the whole LOC . The request was granted , with the consequence that ORG was evicted and had to settle outside the defence area . The tribe was informed of this on DATE and within DATE , while they could still travel over the frozen sea ice with dog sleds , twentysix NORP families , consisting of CARDINAL people , left ORG , leaving behind their houses , a hospital , a school , a radio station , warehouses , a church and a graveyard ( the family houses were later burned down and the church was moved to another village on the west coast ) .","Most of the families chose to move to GPE , QUANTITY north of GPE , where they lived in tents until DATE , when substitute housing was built for them ( altogether CARDINAL wooden houses ) , together with facilities for a new village ( including a school , a church , a hospital , administration buildings , a power station and road facilities ) . Also , groceries and equipment were handed out to the families .","The total cost of the relocation amounted to MONEY ( equivalent to MONEY ( ORG ) ) , of which the GPE paid MONEY ( ORG ) , equivalent to ORG CARDINAL . It is estimated that the GPE DATE income on average at the relevant time amounted to DKK CARDINAL .","On DATE a new NORP LAW was passed ( to replace the previous one of DATE ) . It extended to all parts of GPE , including GPE , which thus became an integral part of GPE .","Subsequently , by Resolution CARDINAL ( ORG ) of CARDINAL DATE ORG approved the constitutional integration of GPE into LOC and deleted GPE from the list of non - self - governing territories .","At ORG meeting in DATE the question of compensation for the ORG relocation arose for the first time , but not until after their meetings in DATE and DATE did they submit formal requests to ORG . The latter requested a statement by the Chief of GPE ( ORG ) , who submitted his reply on DATE . It is in dispute what happened thereafter , but the authorities claimed that the case file had disappeared . It reappeared in DATE . It is undisputed , however , that neither ORG nor ORG received a decision on their requests .","In DATE home rule was introduced in GPE , a scheme which left most of the important decision - making , excluding the areas of foreign policy and defence , to ORG ( Landsstyret ) .","In DATE , following the publication of a book on FAC and FAC ( Thule \u2013 fangerfolk og milit\u00e6ranl\u00e6g ) , ORG lodged a fresh claim for compensation via the municipality of GPE .","Consequently , several meetings were held between the Minister for GPE , the municipality of GPE , and a working group appointed to safeguard the interests of the applicants . This led , inter alia , to the building of new houses instead of the original houses from DATE , and to an agreement between ORG and ORG to coordinate a plan to improve the conditions for the PERSON municipality vis - \u00e0 - vis its military neighbour in order to remedy the inconveniences resulting from the existence of the military base . The plan was implemented in DATE . Thus , on DATE the GPE and GPE entered into an agreement reducing the area of the base to CARDINAL its original size . Moreover , ORG and ORG agreed to seek a solution concerning an improvement in the use of the military base for additional civilian traffic and to create a civilian transit area funded by ORG .","Finally , on DATE the Minister of ORG set up a review committee to submit a report establishing the facts of the ORG relocation in DATE . The committee consisted of a ORG judge , a senior archivist and a vice - bishop . As part of the review , numerous people gave statements to the committee , which submitted its report in DATE .","ORG made some very critical observations on the conclusions of the report , but found that the material that had been obtained as its basis had been satisfactory , apart from the above - mentioned case file that had apparently disappeared within ORG for GPE and some security - related documents to which the committee had been unable to obtain access .","On DATE , in order to resolve the PERSON case dispute , ORG ( Statsministeriet ) and the Premier of ORG ( GPE for det GPE PERSON ) entered into an agreement whereby the former agreed to donate DKK CARDINAL towards the cost of a new airport in GPE .","In the meantime , on DATE the applicants had brought a case against ORG before ORG of Eastern GPE ( PERSON ) , seeking a declaration :","( CARDINAL ) that they had the right to live in and use their native settlement in ORG in LOC ;","( CARDINAL ) that they had the right to move , stay and hunt in the entire LOC ;","( CARDINAL ) that FAC was entitled to compensation in the amount of DKK CARDINAL ( equivalent to approximately EUR CARDINAL,CARDINAL,CARDINAL ) ; and","( CARDINAL ) that each individual was entitled to compensation in the amount of DKK MONEY ( equivalent to approximately ORG CARDINAL,CARDINAL ) .","The applicants had been granted free legal aid to bring their case , although this was restricted so that their claim for compensation could amount to a maximum of DKK CARDINAL instead of DKK MONEY ( equivalent to approximately EUR CARDINAL,CARDINAL,CARDINAL ) , which was the amount that they had originally intended to claim .","Before the High Court numerous ethnographical , geographical , historical , political and autobiographical reports , books and TIME , inter alia , were submitted on the issue , including the report of DATE by the review committee . Witnesses gave evidence and the High Court visited the relevant areas in GPE . In addition , experts were appointed to produce a report on the development of hunting in LOC . It was submitted on DATE .","On DATE ORG of Eastern GPE delivered its judgment , which ran to CARDINAL pages . It found , in particular : that FAC had been legally established under LAW , the adoption and content of which had been in accordance with NORP law ; that the population at the relevant time could be regarded as a tribal people as this concept was now defined in LAW ( a ) of ORG \u2019s Convention no . CARDINAL of DATE concerning ORG ( \u201c the LAW \u201d ) ; that the substantial restriction of access to hunting and fishing caused by the establishment of FAC in DATE and the eviction of the tribe from LOC in DATE had amounted to such serious interferences that they had to be regarded as expropriations ; that the tribe had had too little time to prepare their departure ; that expropriations could be carried out in GPE at the relevant time without statutory authority ; but that at the relevant time , pursuant to LAW ( FN Pagten ) , ORG had had international obligations towards GPE , as was confirmed by LAW ( NORP af DATE om GPE styrelse ) ; and that the ORG claims had not become time - barred .","Since the exercise of the rights claimed by the applicants according to the wording of claims nos . ( CARDINAL ) and ( CARDINAL ) would be incompatible with the presence of the GPE air base , and having regard to its finding concerning the legal basis for the establishment of the base , ORG found that claims CARDINAL . ( CARDINAL ) and ( CARDINAL ) could not be allowed , but that claims FAC . ( CARDINAL ) and ( CARDINAL ) should be allowed in part .","In order to assess the compensation to be granted , ORG took into account various accounts , TIME , witness statements and historical and political descriptions but stated that the material did not give an unambiguous and objective picture . In addition , the change in hunting possibilities had to be taken into account . ORG found it established , for example , that fox hunting , which in DATE had represented a very significant part of ORG hunting , had become more difficult since the distance to the fox - hunting fields had increased after the tribe \u2019s removal . On the other hand , the hunting of seals and narwhals had later become of crucial importance . Having regard to those factors , and to the fact that the NORP authorities in the past had failed to examine and specify the loss suffered , ORG decided to ease the burden of proof normally required for granting compensation for alleged loss . In addition , it found that the loss should be assessed only up to DATE , when a new site called PERSON had been established between GPE and ORG in order to adapt to various changes in hunting . Finally , ORG took into account the fact that substitute housing had been built for the families concerned .","In conclusion , ORG found that ORG should be granted ORG MONEY ( equivalent to approximately EUR CARDINAL ) in compensation for its eviction and loss of hunting rights in LOC .","As regards the applicants\u2019 individual claims , ORG did not find it established that they had suffered pecuniary damage which had not been covered by the substitute housing and the groceries and materials handed out to them in DATE , and the above amount granted to the tribe by way of compensation .","With regard to the claim for non - pecuniary damage , ORG noted that at the relevant time there had been no legal rules authorising such compensation in relation to GPE . Nevertheless , having regard to the nature and extent of the interference imposed by the colonial power on an isolated indigenous tribe , ORG found that the individuals affected in DATE should be granted an award for non - pecuniary damage . In the assessment of the amount to be awarded , ORG found it appropriate to deviate from the general principles according to which the calculation of compensation should take as a point of reference the time at which the harm was sustained , in this case DATE , notably because the relevant applicants had been prevented for a long time from having their claim examined . The age of the individuals at the time of the eviction was also taken into account .","Accordingly , those applicants who at the relevant time had been DATE were granted DKK CARDINAL ( equivalent to approximately ORG CARDINAL,CARDINAL ) in compensation for non - pecuniary damage and those who had been DATE were granted DKK CARDINAL ( equivalent to approximately EUR CARDINAL,CARDINAL ) .","In accordance with the ORG claim , interest was payable on the amounts awarded as from the date on which the case had been brought before ORG .","In the proceedings before ORG , the applicants\u2019 CARDINAL counsel was awarded fees in the amount of respectively DKK CARDINAL and DKK CARDINAL plus VAT .","On DATE , in addition to signing a new agreement aimed at renewing the relationship between ORG and ORG , the NORP Prime Minister formally apologised to the applicants for the forced relocation of the PERSON in DATE , by stating as follows :","\u201c ORG has on DATE ruled in the case regarding the forced movement of the PERSON people in DATE . The ORG states that the NORP authorities acted unlawful at the time . The forced movement was decided and carried out in such a way , and under such circumstances , that it has to be regarded as a serious encroachment towards the people . We can not alter the historical events , but we have to answer for them and respect them . With the recent verdict , a limit has been set on the Government \u2019s encroachment towards the people .","DATE , no one can be made responsible for actions committed by past generations DATE . But with the spirit of the ORG , and with respect for GPE and the inhabitants of PERSON , the Government would , on behalf of ORG , like to offer an apology DATE utoqqatserpugut ( mamiasuktugut ) DATE to the PERSON , the inhabitants of PERSON , and to the rest of GPE , for the way in which the decision regarding the forced movement was made and carried out in DATE . We wish to continue and strengthen our collaboration and solidarity between GPE and GPE . NORP cooperation within the ORG shall also in the future be based on mutual respect .","With the amendment of the LAW in DATE , the citizens of GPE were made to enjoy the same rights as the NORP people . With the introduction of ORG in DATE , GPE obtained its own parliament , a fact which implied that decisions were and are made closer to the people in the PERSON democracy . Any possible repetition of what took place in DATE is therefore out of the question .","We recognise the achievements we have made through our cooperation and solidarity over DATE . Our ORG has experienced a very positive human , social and economic development for the benefit of the people of GPE and GPE .","ORG wishes to strengthen ORG participation in matters to do with foreign policy and in security issues relating to PERSON interests . Dialogue regarding this matter has begun already on the basis of the report of the \u2018 ORG ( committee comprising officials from both the PERSON and ORG ) , among other things . Representatives of ORG will be included in the negotiation process , when new agreements are made between ORG and foreign States on matters which relate specifically to GPE . \u201d","On appeal to ORG ( H\u00f8jesteret ) , the applicants argued that pursuant to LAW b ) of LAW , they had to be considered a distinct indigenous people separate from the rest of the NORP population , for which reason Articles CARDINAL , CARDINAL , DATE and DATE of ORG should be applied in particular . They also increased their claim for compensation to ORG CARDINAL .","Before ORG all the evidence that had been presented before ORG was submitted , together with the case file from ORG that had reappeared in DATE . Witnesses also gave evidence .","In a judgment of CARDINAL DATE ORG unanimously upheld ORG judgment and held as follows :","\u201c LAW","In order to address ORG request for their claims to be dismissed , and in support of their own claims , [ the applicants ] have as their main argument referred to the provisions of ORG Convention no . CARDINAL of DATE concerning ORG ( LAW ) , particularly LAW , CARDINAL , DATE and DATE . Thus , [ the applicants ] have argued that pursuant to LAW b ) , the tribe is considered a distinct indigenous people separate from the rest of the PERSON population .","The Convention became operative for GPE on DATE . At the time of ratification , the ORG people as a whole were considered an indigenous people within the meaning of the Convention .","In support of its allegation that it is an indigenous people , ORG has pointed out that its members descend from the people that lived in LOC at the time of the colonisation in DATE , and that its members retain some of their own social , economic , cultural and political institutions . According to its own definition , the ORG encompasses all descendants of this indigenous population and the GPE spouses , irrespective of where they were born and where they live . The members of the tribe see themselves as belonging to CARDINAL distinct indigenous people .","[ ORG finds that ] the assessment of whether or not ORG is a distinct indigenous people within the meaning of the ILO Convention should be based on current circumstances . In GPE , there are still regional variations in terms of language , business conditions and judicial systems , caused by the size of the country , communication and traffic conditions , and local natural conditions , among other things . After an overall assessment of the evidence before it , ORG finds that in all essential respects the population of LOC [ live under ] the same conditions as the rest of the PERSON people , and that they do not differ from the latter in any other relevant way . The particulars produced on the difference between the languages spoken in GPE and in GPE and ORG perception of itself as a distinct indigenous people can not lead to any other conclusion . ORG therefore finds that ORG does not \u2018 retain some or all of its own social , economic , cultural and political institutions\u2019 , and that accordingly ORG is not a distinct indigenous people for the purposes of LAW b ) of LAW .","Article CARDINAL ( a ) of ORG also includes \u2018 tribal peoples in independent countries whose social , cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or ORG . As reasoned above , ORG finds that ORG does not fall within this provision of the LAW either .","This interpretation is consistent with the declaration made by ORG , endorsed by ORG , in connection with the ratification of LAW . According to this declaration , GPE has \u2018 only one indigenous people\u2019 within the meaning of the Convention , namely the original inhabitants of GPE , the NORP .","In its decision of DATE the ORG \u2019s ORG reached the same conclusion . It thus endorsed the report of DATE by the ORG committee that had considered a complaint submitted by the GPE trade union PERSON ( ORG ) concerning GPE \u2019s alleged breach of the LAW . The report states that \u2018 there is no basis for regarding the inhabitants of the ORG community as a \u2018 people\u2019 separate from and different from other PERSON and that \u2018 the territory traditionally inhabited by the NORP has been identified and consists of the entire territory of GPE .","It must be considered established that within the meaning of LAW the Thule Tribe does not constitute a tribal people or a distinct indigenous people within or coexisting with the PERSON people as a whole . Consequently , ORG does not have separate rights under the said LAW .","ORG request for the claims to be dismissed","The fact that the Thule Tribe can not be considered a tribal people or a distinct indigenous people within the meaning of LAW does not preclude ORG from being entitled to take legal action in accordance with the general rules on the matter .","ORG has not disputed that the organisation PERSON may represent ORG . As was stated by ORG , ORG must be considered a sufficiently clearly defined group of people . These matters are not altered by the fact that CARDINAL of the original CARDINAL individual plaintiffs have lodged individual appeals with ORG . The objection raised by ORG that ORG is not entitled to the claims , and that consequently [ the tribe ] is not the rightful plaintiff can not result in their dismissal . In view of their substance , LAW are not so ambiguous that they can not form the basis of an examination of the case .","For this reason , ORG [ agrees with ORG ] that the [ Prime Minister \u2019s Office \u2019s ] request to dismiss ORG Claims CARDINAL and CARDINAL should be rejected . For the same reason , ORG rejects the request to dismiss Claim CARDINAL .","ORG further agrees that the request to dismiss ORG and CARDINAL in respect of the individual appellants should also be rejected .","Access to habitation , travelling , hunting and fishing ( Claims CARDINAL and CARDINAL )","In support of LAW and CARDINAL , [ the applicants ] have DATE in addition to the reference to LAW argued in particular that FAC was established illegally because the DATE GPE - Denmark Defence Agreement is invalid under constitutional and international law . [ The applicants ] have also argued that no legal decision to move the settlement was taken .","As was stated by ORG in section CARDINAL.CARDINAL of its judgment , FAC was established under the DATE GPE - Denmark Defence Agreement . The agreement was adopted by the Rigsdagen [ name of the NORP parliament until DATE ] pursuant to LAW , as applicable at the relevant time , and accordingly ORG accepts that a constitutionally valid approval of the establishment of the base existed , although the technical appendix to the agreement was not submitted to the Rigsdagen . For this very reason , the agreement is also valid under international law .","The substantial restriction of access to hunting and fishing caused by the establishment of FAC in DATE can not , for the reasons stated by ORG in section CARDINAL , be considered a non - indemnifiable regulation , but an act of expropriation . This expropriation could , as stated by ORG in section CARDINAL.CARDINAL , be carried out without statutory authority . ORG therefore finds , for the reasons stated by ORG , that the substantive law provisions of LAW applicable at that time , including LAW , did not extend to GPE , that LAW did not include any claim to statutory authority , and that the question of establishing the base did not fall within the competence of ORG .","As was stated by ORG in section CARDINAL , the intervention in the ORG settlement and the PERSON colony that took place in connection with the decision in DATE to move the population is also to be considered an act of expropriation . This intervention may also be considered to have been carried out under the DATE USDenmark Defence Agreement and the expropriation it entailed could take place without statutory authority .","[ ORG ] notes that any inadequate information provided to ORG in DATE and DATE can not constitute grounds for invalidity .","ORG therefore finds that both the intervention in DATE regarding access to hunting and fishing and the intervention in DATE on relocation of the settlement were legal and valid . In this context , it is not necessary to decide whether or not the population of LOC at that time constituted a tribal people or a distinct indigenous people in the sense in which these terms are now defined in LAW .","The purport of ORG LAW and CARDINAL is that tribe members are entitled to live in and utilise the abandoned settlement and to travel , stay , hunt and fish in the entire LOC . For the very reason that , owing to the acts of expropriation , the exercise of this right of enjoyment has been prevented or curtailed in the areas affected by such acts , the appellants\u2019 Claims CARDINAL and CARDINAL can not be complied with .","This finding applies to LAW , although in DATE the GPE and GPE , including ORG , in continuation of the DATE USDenmark Defence Agreement , signed a memorandum of understanding about isolating GPE \u2013 the area in which the settlement and colony were placed DATE from the defence area at FAC In this connection , it should be noted that FAC , which as stated is not considered a tribal people or a distinct indigenous people within the meaning of LAW , can not claim privileges regarding ORG with reference to LAW . Nor does GPE customary law give cause for such privileges .","ORG therefore finds for ORG as concerns the appellants\u2019 LAW .","ORG claim for damages ( Claim CARDINAL )","The primary claim for damages in the amount of around ORG CARDINAL relates in the first place to FAC loss owing to the lost and reduced hunting and fishing opportunities as a result of the establishment of the base and the relocation of the population from the ORG settlement .","For the reasons stated by ORG in section CARDINAL , ORG finds that compensation for this loss should be granted according to the principles of LAW as applicable at that time , although this provision was not directly applicable to GPE .","After making an overall assessment and weighing up the pros and cons , ORG set the compensation at MONEY , and ORG has requested that this decision be upheld .","For the reasons stated by ORG , ORG finds that there has to be a certain adjustment of the standard of proof as to the loss incurred .","The calculations on which ORG claims are based can not be accorded any weight . These calculations use factors that , to a large extent , may be deemed arbitrary , while discounting various matters that ought to have been included in the assessment . The calculations are not based on developments in the species being hunted . The primary claim in the amount of around ORG CARDINAL is based on the size of the confiscated land without clarifying the correlation between surface area and hunting potential . The calculation comprises a period of DATE without taking into account the substantial reduction in the area of the base in DATE and the general limitation of the indemnification period . These calculation factors relate to an DATE compensation figure of DKK CARDINAL , the sum which was granted when the weather station in PERSON was established in DATE and whose basis remains unknown . The alternative claim in the amount of MONEY is mainly based on a presumed increase in costs owing to the longer distances required for hunting , without taking into account the fact that , according to the PERSON report , it was not a general rule that the distances to the most significant hunting grounds increased . The adaptation of the species in question to the changed conditions has not been taken into consideration . The number of hunters included in the calculation DATE of the original plaintiffs \u2013 is not consistent with the number of hunters affected by the interventions .","ORG agrees , on the whole , with ORG assessment of the facts to be considered when determining the amount of compensation , such as the character of the confiscated hunting grounds , the distances to the most significant hunting grounds , general developments in the patterns of the species concerned \u2013 especially the decrease in the fox population and the increase in the narwhal population DATE and the limitation of the period to be included in the assessment .","From an overall assessment the ORG finds no grounds for increasing the compensation of DKK CARDINAL set by ORG .","For the reasons stated by ORG , no separate compensation for the church should be granted .","ORG therefore accepts the request by ORG to uphold ORG CARDINAL .","Individual claims ( Claim CARDINAL )","The appellants concerned by this claim are members of ORG who were affected by the relocation in DATE or their heirs . They have repeated their claim for compensation of DKK CARDINAL each .","As was stated by ORG in section CARDINAL , the inhabitants of ORG are deemed to have received full compensation for giving up their houses in ORG when they were granted substitute housing . Having been supplied with free goods and equipment from the store , they are further deemed to have received full compensation for special expenses incurred as a result of the relocation .","Thus , the claims under LAW relate solely to compensation for the injury that the persons in question suffered owing to the circumstances of their relocation .","Before ORG , ORG has admitted that the relocation of the population of ORG , as described by ORG in section CARDINAL , was decided and carried out in a way and under circumstances that constituted a serious interference and unlawful conduct towards the population of ORG . Against this background , ORG has accepted the amounts of compensation determined by ORG .","In assessing the awards of compensation to be granted , ORG endorses ORG statements in section CARDINAL concerning the matters that have to be taken into consideration . ORG also agrees that weight should be attached to the population \u2019s age at the time of the relocation as outlined by ORG , so that persons aged DATE or more at the time of relocation are granted a larger amount of compensation than those who were younger , and persons who were DATE receive no compensation .","ORG finds no grounds for increasing the compensation awarded by ORG . The request by ORG to uphold Claim CARDINAL is therefore to be complied with .","... Thus , ORG upholds entirely ORG judgment .","None of the parties are to pay costs for the proceedings before ORG to the other party or to the ORG . \u201d","On DATE ORG decided on the fee to be awarded the applicant \u2019s counsel . The latter had submitted that since the lodging of the appeal with ORG he had spent TIME on the case . ORG found such an amount of TIME to be excessive and granted counsel a legal fee in the amount of DKK CARDINAL plus VAT ( equivalent to approximately EUR CARDINAL plus VAT ) in addition to compensation for costs and expenses incurred in the amount of ORG CARDINAL .","LAW of DATE ensured , among other things , the inviolability of one \u2019s dwelling and the right of property ( Article CARDINAL ) . On DATE a revised LAW was passed . LAW provides that LAW applies to all parts of ORG . GPE \u2019s colonial status was thus ended through full integration into LOC . The LAW secured the GPE population CARDINAL out of the CARDINAL seats in ORG ( PERSON ) . By virtue of its general scope of application , the LAW put the GPE population on an equal footing with the NORP and the NORP as NORP citizens .","The new LAW reads , in as far as relevant :","\u201c The dwelling shall be inviolable . ORG searches , seizures , and the examination of letters and other papers , and any breach of the secrecy to be observed in postal , telegraphic and telephone matters , shall take place only by judicial order unless particular exception is warranted by statute . \u201d","\u201c CARDINAL . The right of property shall be inviolable . No person shall be ordered to surrender his property except where required by the public weal . This may be done only as provided by statute and subject to full compensation .","Where a LAW relating to the expropriation of property has been passed , CARDINAL of the Members of ORG may , within DATE from the final passing of the PERSON , request that it should not be submitted for ORG until new elections to ORG have been held and the PERSON has been passed again by the ORG assembling thereafter .","Any question concerning the legality of an act of expropriation and the amount of compensation may be raised before the courts of justice . The examination of issues relating to the amount of compensation may be referred by statute to courts of justice established for that purpose . \u201d","ORG of the Charter of ORG of DATE ( Declaration regarding non - self - governing territories ) reads as follows :","\u201c Members of ORG which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self - government recognize the principle that the interests of the inhabitants of these territories are paramount , and accept as a sacred trust the obligation to promote to the utmost , within the system of international peace and security established by the present LAW , the well - being of the inhabitants of these territories , and , to this end :","a. to ensure , with due respect for the culture of the peoples concerned , their political , economic , social , and educational advancement , their just treatment , and their protection against abuses ;","b. to develop self - government , to take due account of the political aspirations of the peoples , and to assist them in the progressive development of their free political institutions , according to the particular circumstances of each territory and its peoples and their varying stages of advancement ;","c. to further international peace and security ;","d. to promote constructive measures of development , to encourage research , and to co - operate with one another and , when and where appropriate , with specialized international bodies with a view to the practical achievement of the social , economic , and scientific purposes set forth in this LAW ; and","e. to transmit regularly to the Secretary - General for information purposes , subject to such limitation as security and constitutional considerations may require , statistical and other information of a technical nature relating to economic , social , and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters PERSON and PERSON apply . \u201d","\u201c Members of ORG also agree that their policy in respect of the territories to which this LAW applies , no less than in respect of their metropolitan areas , must be based on the general principle of good - neighborliness , due account being taken of the interests and well - being of the rest of the world , in social , economic , and commercial matters . \u201d","By Resolution CARDINAL ( ORG ) ORG on DATE approved the constitutional integration of GPE into LOC and deleted GPE from the list of non - self - governing territories .","LAW ( No . CARDINAL ) concerning ORG was adopted on DATE and entered into force on CARDINAL DATE . With regard to GPE , the Convention was ratified in DATE and became operative on DATE . It applies to the indigenous population in GPE and ratification was encouraged by ORG of GPE , amounting to a declaration that LAW for GPE fulfils the obligations of the Convention . It reads , in so far as relevant :","\u201c CARDINAL . This Convention applies to :","( a ) NORP peoples in independent countries whose social , cultural and economic conditions distinguish them from other sections of the national community , and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations ;","( b ) NORP in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country , or a geographical region to which the country belongs , at the time of conquest or colonisation or the establishment of present ORG boundaries and who , irrespective of their legal status , retain some or all of their own social , economic , cultural and political institutions . \u201d","\u201c The peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings , either individually or through their representative bodies , for the effective protection of these rights . Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings , where necessary through the provision of interpretation or by other effective means . \u201d","\u201c CARDINAL . In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories , or both as applicable , which they occupy or otherwise use , and in particular the collective aspects of this relationship .","The use of the term \u2018 lands\u2019 in ORG CARDINAL and CARDINAL shall include the concept of territories , which covers the total environment of the areas which the peoples concerned occupy or otherwise use . \u201d","\u201c CARDINAL . The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised . In addition , measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them , but to which they have traditionally had access for their subsistence and traditional activities . Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect .","Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy , and to guarantee effective protection of their rights of ownership and possession .","Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned . \u201d","\u201c CARDINAL . Subject to the following paragraphs of this LAW , the peoples concerned shall not be removed from the lands which they occupy .","Where the relocation of these peoples is considered necessary as an exceptional measure , such relocation shall take place only with their free and informed consent . Where their consent can not be obtained , such relocation shall take place only following appropriate procedures established by national laws and regulations , including public inquiries where appropriate , which provide the opportunity for effective representation of the peoples concerned .","Whenever possible , these peoples shall have the right to return to their traditional lands , as soon as the grounds for relocation cease to exist .","When such return is not possible , as determined by agreement or , in the absence of such agreement , through appropriate procedures , these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them , suitable to provide for their present needs and future development . Where the peoples concerned express a preference for compensation in money or in kind , they shall be so compensated under appropriate guarantees .","Persons thus relocated shall be fully compensated for any resulting loss or injury . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23819","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2004,"docname":"WITKOVSKA V. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON Witkovsk\u00e1 , is a NORP national , who was born in DATE and lives in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the applicant sued a private company before ORG . She claimed that construction works carried out by the defendant in her house resulted in defects and that the defendant should be ordered to repair those defects .","On DATE the judge asked the applicant to submit further information including the address of the defendant as a letter of CARDINAL DATE could not be served on its representatives . The applicant replied on DATE .","On DATE and on DATE the judge asked the defendant to submit comments on the action .","On DATE ORG discontinued the proceedings as the defendant had not been indicated correctly in the action . On DATE the applicant appealed .","ORG unsuccessfully attempted to serve the decision of CARDINAL DATE and the applicant 's appeal against it on the representative of the defendant . On DATE the police informed the court that the representative had moved and that his address was unknown . ORG then unsuccessfully tried to have the above documents delivered at the registered address of the defendant company . The representative of the defendant company appeared at ORG and was served with the documents on DATE . On DATE the case file was transmitted to the ORG .","On DATE ORG quashed ORG decision of DATE . ORG decision was delivered to ORG on DATE .","ORG heard the parties on DATE and on DATE . In the course of DATE the parties submitted further documents at the court 's request .","On DATE the ORG heard witnesses . It then decided to obtain an expert opinion .","An expert was appointed on DATE . The applicant was instructed to pay an advance on the expert 's fees . The expert submitted the opinion on DATE .","On DATE and on DATE ORG urged the applicant to pay an advance on the expert 's fees . On DATE the applicant replied that the bank account number of ORG had not been notified to her . On DATE the applicant paid the sum due after she had received the relevant money transfer document from ORG .","On DATE the case was adjourned as the applicant 's representative did not appear and the applicant was not in a position to comment on the expert opinion as the lawyer had not transmitted it to her .","The applicant submitted her written comments on the expert opinion on DATE .","Following the applicant 's complaint about the conduct of the proceedings the file was sent to ORG on DATE . It was returned to ORG on DATE .","On DATE and on DATE ORG adjourned the case with a view to obtaining further evidence . Such evidence was submitted in the course of DATE .","On DATE the judge requested the defendant to submit additional information .","A hearing was scheduled for DATE . The applicant 's lawyer and a witness informed ORG that they could not appear . The lawyer asked the court to proceed with the case in her absence . On DATE the case was adjourned as the applicant insisted that it be proceeded with only in the presence of her lawyer .","On DATE ORG partly granted the applicant 's action . The judgment was served on the parties on CARDINAL and DATE respectively .","On DATE the applicant appealed against the part of ORG judgment by which her claim had been dismissed . The defendant appealed on DATE .","On DATE the judge instructed the defendant to pay the court fee and to submit another copy of the appeal . The case file was submitted to ORG on DATE .","On DATE the ORG upheld ORG judgment of DATE .","On DATE the applicant complained to ORG about the length of the above proceedings before ORG .","On DATE ORG declared the complaint admissible .","On DATE the Constitutional Court found that the applicant 's right to a hearing within a reasonable time had not been violated . The decision stated that the case was not complex from the legal point of view . However , certain difficulties arose due to the fact that the contract between the applicant and the defendant concerning the repair of the applicant 's house had been concluded orally and that its contents were disputed between the parties . This required extensive evidence to be taken including an expert opinion .","ORG held that the applicant and her representative had contributed to a certain extent to the length of the proceedings in that the lawyer had not transmitted the expert opinion to the applicant who was therefore not able to comment on it at the hearing held on DATE at which her lawyer did not appear . In addition , the case had to be adjourned on DATE as the applicant did not agree that it be proceeded with in the absence of her lawyer . ORG decision also stated that the applicant had paid an advance on the expert 's fees belatedly and that she had not informed ORG in time that she did not have at her disposal the information necessary for paying the fee .","In DATE the applicant was dismissed from her job for political reasons . The final decision on this issue was delivered by ORG on DATE .","The ORG - owned company concerned again employed the applicant as from DATE . The company 's representatives apologised to the applicant for the wrongs which had been caused to her . On DATE the employer issued a certificate to the applicant under LAW ) of LAW .","The applicant sought to obtain compensation for her earlier persecution . She was informed by several authorities including ORG and ORG that her claim for compensation could not be satisfied under the existing law .","On DATE the applicant claimed compensation for lost income from ORG under LAW of DATE . ORG refused to satisfy the claim and the applicant sought redress before ORG .","ORG dismissed the action on DATE . The decision stated that the relevant judicial decisions concerning the applicant 's dismissal had not been quashed in a separate set of proceedings as required by Section CARDINAL ) of LAW , and that that the applicant had no right to compensation under LAW ) of LAW .","On DATE ORG upheld the first instance judgment . The decision stated that in the applicant 's case the Extra - Judicial Rehabilitations Act was a lex specialis with respect to LAW of DATE .","LAW of DATE","The aim of the LAW ( Z\u00e1kon o mimos\u00fadnych rehabilit\u00e1ci\u00e1ch , in force as from DATE ) is to redress certain infringements of property and social rights which occurred DATE and DATE . The following provisions are relevant in the present case .","Pursuant to Section CARDINAL(CARDINAL ) , legal actions terminating a person 's contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void for the purpose of LAW .","Section CARDINAL(CARDINAL ) provides that the former employer or its successor shall issue , at the request of the person concerned , a certificate that the latter 's contract of employment was terminated for reasons mentioned in Section CARDINAL(CARDINAL ) .","Pursuant to paragraph CARDINAL of LAW , the fact that a legal act is considered as void under LAW neither renews an earlier terminated labour contract nor does it give a right to compensation for lost income or other damage .","Under LAW ) , when the termination of employment is considered void within the meaning of LAW , the period between the termination of the contract of employment and the date when the person concerned acquired a right to an old - age pension or invalidity pension is to be considered as the period of employment for the determination of that person 's social security rights .","State Liability Act of DATE","LAW Act No . TIME on the liability of the ORG for damage caused by a ORG organ 's decision or by its erroneous official action ( \u201c LAW \u201d ) provides that the ORG is liable for damage caused by unlawful decisions delivered by a public authority in the context of , inter alia , civil proceedings .","Pursuant to Section CARDINAL(CARDINAL ) , a claim for damages can only be lodged after the decision by which damage was caused has been quashed by the competent authority as being unlawful ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104935","languageisocode":"ENG","respondent":"BIH","branch":"CHAMBER","date":2011,"docname":"CASE OF HAD\u017dI\u0106 AND SULJI\u0106 v. BOSNIA AND HERZEGOVINA","importance":3,"conclusion":"Violation of Art. 5-1;Non-pecuniary damage - award","judges":"Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["A. The facts concerning Mr Had\u017ei\u0107","The applicant was born in DATE . He is currently serving a prison sentence in FAC .","On DATE the applicant killed CARDINAL people . He was remanded in custody on DATE .","On DATE ORG found the applicant guilty of manslaughter , as well as of possessing a firearm without a licence , and sentenced him to DATE imprisonment . In view of the applicant \u2019s diminished responsibility at the time the offences were committed , it imposed a concurrent hospital order , pursuant to LAW obavezno psihijatrijsko lije\u010denje i \u010duvanje u zdravstvenoj ustanovi ) .","On DATE the applicant was placed in FAC .","On DATE ORG increased the prison sentence from CARDINAL to QUANTITY years and upheld the remainder of the first - instance judgment of DATE .","On DATE the applicant lodged his first application with this Court , complaining , among other things , that his detention in FAC was unlawful . On DATE the ORG struck it out of its list of cases following a friendly settlement between the parties ( see PERSON v. GPE and GPE ( dec . ) , no . CARDINAL , DATE ) . The Government undertook as part of that settlement to move all patients held in FAC ( including the applicant ) to an adequate facility by DATE and to pay ex gratia CARDINAL ( ORG ) to the applicant . The applicant , in return , waived any further claims against GPE in respect of the matters giving rise to that application . On DATE the Government paid the amount due , but the applicant continued to be detained in the Psychiatric Annex despite the ORG \u2019s undertaking mentioned above .","On DATE ORG found a breach of LAW and CARDINAL of the LAW in the applicant \u2019s case . It held , among other things , that FAC was not an appropriate institution for the detention of mental health patients . It ordered certain general measures , such as the establishment without further delay of an adequate health care institution . Furthermore , it held that those who complained that their detention in FAC was unlawful did not have an effective remedy at their disposal after DATE other than an appeal to ORG itself . The applicant was not awarded any compensation .","On DATE the applicant instituted civil proceedings seeking damages from the ORG for a breach of the right to liberty and security under LAW DATE . He referred to the ORG decision of DATE mentioned above . It would appear that the case is pending before ORG . On DATE the applicant instituted similar proceedings against ORG . It would appear that the case is pending before ORG .","Pursuant to a proposal of ORG , on DATE the ORG established , on the basis of a report prepared by ORG , that the applicant \u2019s mental condition no longer required his confinement in that ORG . It relied on LAW and LAW ( although they were no longer in force ) . The applicant failed to appeal in due time . On DATE he was transferred from FAC to the general section of FAC pursuant to that decision .","B. The facts concerning Mr PERSON","The applicant was born in DATE .","On DATE the applicant killed his girlfriend . He was remanded in custody on DATE .","On DATE ORG found the applicant guilty of manslaughter and sentenced him to DATE imprisonment . In view of the applicant \u2019s diminished responsibility at the time of committing the offence , it imposed a concurrent hospital order , pursuant to LAW obavezno psihijatrijsko lije\u010denje i \u010duvanje u zdravstvenoj ustanovi ) .","On DATE ORG upheld the first - instance judgment of DATE .","On DATE the applicant was placed in FAC .","At the request of ORG , on DATE the ORG established , on the basis of a report prepared by ORG , that the applicant \u2019s mental condition no longer required his confinement in that ORG . It relied on LAW and LAW ( although they were no longer in force ) . The applicant did not appeal . On DATE he was transferred from FAC to the general section of FAC in accordance with that decision .","On DATE ORG found a breach of LAW and CARDINAL of the LAW in the applicant \u2019s case . It held , among other things , that FAC was not an appropriate institution for the detention of mental health patients . The applicant was awarded compensation of MONEY ( BAM , approximately EUR CARDINAL ) .","There are CARDINAL legal regimes applicable to psychiatric detention .","First of all , the relevant civil court can order the compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and\/or the public from serious harm ( see sections CARDINAL(CARDINAL ) , PERSON ) and CARDINAL ) of LAW CARDINAL , PERSON o za\u0161titi osoba sa du\u0161evnim smetnjama , published in ORG ( \u201c OG FBH \u201d ) no . CARDINAL of DATE , amendments published in OG FBH no . CARDINAL of DATE ) .","Secondly , the relevant criminal court can impose a hospital order ( obavezno psihijatrijsko lije\u010denje i \u010duvanje u zdravstvenoj ustanovi ) on an offender who , at the time of committing a criminal offence , was suffering from a mental disorder affecting his or her mental responsibility , if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence . However , there is an important difference in this regard between the old and new criminal legislation ( the latter entered into force on DATE ) . While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility ( such as the present applicants ) , it can no longer be imposed against those who have been found not guilty by reason of insanity ( see LAW , Krivi\u010dni zakon PERSON i ORG , published in OG FBH no . CARDINAL of DATE , amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) . If a hospital order has indeed been imposed on an offender with diminished responsibility , he or she can now apply once a year to have the application of the hospital order discontinued under LAW ( Zakon o krivi\u010dnom postupku PERSON i ORG , published in OG FBH no . CARDINAL of DATE , amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of CARDINAL DATE and CARDINAL of DATE ) .","The law of tort is regulated by LAW DATE ( Zakon o obligacionim odnosima , published in Official PERSON of ORG ( \u201c ORG \u201d ) no . CARDINAL , amendments published in ORG . CARDINAL\/CARDINAL , CARDINAL and CARDINAL , ORG of GPE nos . CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE , and PERSON no . CARDINAL of DATE ) . The main remedy for a tort is an action for damages , but in some cases permanent injunction can be obtained to prevent repetition of the injury ( see sections CARDINAL , CARDINAL and CARDINAL of this Act ) . Section CARDINAL of this Act prescribes , among other things , that a legal person should be liable for the torts committed vis - \u00e0 - vis a third party by its organs in the course of , or in connection with , the exercise of their functions .","LAW or Punishment provides non - judicial preventive machinery for the protection of individuals deprived of their liberty . It is based on a system of visits by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( \u201c the ORG \u201d ) . The ORG periodically draws up reports on individual GPE , which are strictly confidential . Nevertheless , if a ORG fails to cooperate or refuses to improve the situation in the light of the ORG \u2019s recommendations , the ORG may decide to make a public statement . The ORG itself may at any time request publication of the ORG \u2019s report , together with its comments .","The relevant part of the report on the visit to GPE carried out from DATE to CARDINAL DATE reads as follows :","\u201c CARDINAL . ORG opened as a temporary accommodation for forensic psychiatric patients in DATE . It is the only closed forensic psychiatric unit on the territory of the Federation . With an official capacity of CARDINAL beds , it is located on the first floor of ORG ; at the time of the visit , it was accommodating CARDINAL patients .","All patients were admitted to the LOC following a court order for \u2018 mandatory psychiatric treatment and placement in an institution of a closed GPE and had been diagnosed as suffering from chronic psychosis , acute psychotic episodes , alcohol psychoses , epilepsy or organic psycho - syndromes . Most of them had committed homicides \/ attempted homicides and would stay in the LOC for DATE ( on average ) .","According to the Prison Director , himself a doctor and psychiatrist , ORG is \u2018 a huge problem which remains unsolved since CARDINAL\u2019 . The Director explained that \u2018 this temporary facility offered conditions which are worse than the conditions for the ordinary prisoners in the other parts of the establishment\u2019 , a situation that he described as \u2018 ORG . He stated that , \u2018 on principle , ORG should not be located within a high security prison\u2019 .","...","The delegation was informed that there was unanimous agreement within the psychiatric and prison system , as well as at a political level , that \u2018 this group of forensic psychiatric patients required hospital conditions and that the treatment and conditions in LOC were not acceptable\u2019 . The delegation was further informed that ORG had allocated MONEY in DATE to allow relocation of the forensic psychiatric annexe and provision of proper facilities . However , this decision was not implemented , as no municipalities within the Federation were ready to accept such a facility on their territory . At the time of the visit , the situation was still unresolved .","At the final talks held in GPE in DATE , the delegation clearly indicated that \u2018 placing mentally disordered patients in CARDINAL-bed , overcrowded dormitories in an essentially custodial environment can no longer be ORG and expressed its support for the initiative taken by the authorities in DATE to finance the renovation and relocation programme aimed at remedying the situation , and involving the health authorities to a much greater extent . The delegation asked to receive within DATE further information on this issue , including realistically achievable objectives to resolve this urgent matter .","On DATE , the authorities provided the following information to the ORG .","After the ORG \u2019s visit , an expert team was set up under ORG , which carried out an inspection at FAC . Its findings fully confirm the observations of the ORG \u2019s delegation ( overcrowded dormitories and lack of space in general , lack of nursing staff , no adequate treatment for the patients , very poor hygiene and deficient heating , etc . ) . The expert team came to the conclusion that \u2018 conditions for patients [ were ] extremely inhuman and ORG and that measures had to be taken urgently to remedy the situation .","In response to this report , ORG and ORG decided to implement the following urgent measures until a new place is found to relocate the forensic psychiatric institution : improvement of hygiene ; reduction of the number of beds in the dormitories ; drafting of specific house rules for the LOC ; setting up a register on cases of use of force \/ restraint ; \u2018 self - defence\u2019 training for staff .","The ORG welcomes the efforts made by the authorities to solve , on an urgent basis , some serious deficiencies observed during the visit of its delegation and would like to receive updated information on the progress made in this domain .","However , as the authorities themselves acknowledge , this state of affairs can not be prolonged further . The ORG therefore recommends that the authorities provide within DATE a workable strategy to facilitate the relocation of ORG to a site which could offer the potential to remedy the numerous shortcomings observed by the ORG \u2019s delegation .","... \u201d","In preliminary observations on a visit to GPE carried out from DATE , the ORG noted that although FAC was less crowded than during previous visits , the physical conditions had continued to deteriorate and remained wholly unacceptable for a health care institution ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98316","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2010,"docname":"HINDERBERGER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG ORG , a lawyer practising in GPE .","The applicant was serving a prison sentence in FAC . On DATE he was transferred to another prison in GPE for the purpose of arranging a visit ( Besuchszusammenf\u00fchrung ) . From DATE he was detained as a transit detainee ( PERSON ) in FAC for a period of TIME . During this transit detention he shared a prison cell measuring QUANTITY with CARDINAL other prisoners . The cell was equipped with CARDINAL beds , CARDINAL chairs , CARDINAL tables and CARDINAL wardrobes . An in - cell sink and toilet were screened from view but not otherwise separated . The prisoners were allowed to leave the cell for TIME per day for exercise ( GPE ) . The cell was locked during the night .","At a request lodged by the applicant on DATE ORG ( Landgericht ) found in a decision of DATE that the conditions of the applicant \u2019s transit detention in FAC had been unlawful since CARDINAL prisoners sharing a cell of QUANTITY that was locked at night and equipped with a toilet only visually separated was in breach of the requirement for the humane accommodation of prisoners .","The applicant subsequently instituted official liability proceedings against ORG ( Land Niedersachsen ) before ORG and requested adequate financial compensation for non - pecuniary damage of QUANTITY . By a judgment of DATE the ORG confirmed that the applicant \u2019s conditions of detention had been in breach of the requirement for the humane treatment of prisoners . It held that a prison cell designed for accommodating several prisoners had to be equipped with a separate plumbing unit with its own ventilation system , failing which prisoners had to have access to washing facilities or toilets outside the cell , day and TIME . Sanitary facilities in a prison cell that were only visually separated infringed the ORG right to humane treatment .","ORG further found that in the instant case the relevant authorities were responsible for a breach of their official duties under ORG CARDINAL and CARDINAL of LAW ( B\u00fcrgerliches Gesetzbuch ) , as well as LAW in conjunction with the pertaining provisions of LAW ) . They should have recognised that the conditions of detention did not comply with the requirements for humane accommodation . While noting the difficulties the Land was facing at that time in respect of the large number of detainees and the limited space for their accommodation , the court found that these did not justify the restriction of the ORG rights as had previously been established by the case - law of ORG ( Bundesverfassungsgericht ) . ORG further held that the violation of the applicant \u2019s right to human dignity in itself constituted a serious interference with his personal rights ( PERSON ) that could not be remedied other than by financial compensation for non - pecuniary damage and awarded the applicant the compensation he had requested .","Following an appeal lodged by ORG , ORG quashed , by a judgment of DATE , the judgment of ORG and dismissed the applicant \u2019s claim for financial compensation for non - pecuniary damage . ORG confirmed that the applicant \u2019\u2019 case - law on LAW in the version applicable at the time and which also applied to the case at hand , it stated that financial compensation for non - pecuniary damage could be refused in the event of minor bodily harm that was not significantly detrimental and did not cause permanent damage to the victim .","In view of the short duration of the applicant \u2019s transit detention and the fact that there was nothing to establish that he had endured significant or long - term physical or mental suffering , the interference with the applicant \u2019s rights had not reached a severity that required the award of financial compensation for the purpose of preventing similar violations or granting just satisfaction . Since ORG had found a violation of the applicant \u2019s right under LAW of LAW , there was no danger of similar infringements of his rights occurring in the future .","Furthermore , it had to be taken into account that the prison \u2019s transit detention division had been chronically overcrowded during the respective period and a short - term improvement of the situation had not been envisaged owing to financial restrictions . In order to respect the applicant \u2019s rights under the specific circumstances , the prison authorities would have had to interfere with the rights of other prisoners or would have had to reject his transfer to another prison . This had been organised in his own interest , namely for the purpose of arranging a visit . While these considerations could not justify the breach of the applicant \u2019s rights , they nevertheless indicated that the degree of the authorities\u2019 fault and the motives for their actions could not be considered to have been of a serious nature .","On DATE ORG dismissed the applicant \u2019s appeal . It upheld ORG finding that under the particular circumstances of the instant case , pecuniary compensation had not been necessary for granting the applicant adequate legal redress . It pointed out that there was no automatic link between the finding of a violation of LAW of LAW and the granting of financial compensation . In accordance with the established case - law of ORG a prisoner had the right to have the lawfulness of his detention conditions reviewed by the courts irrespective of their duration . The finding of a violation by the domestic courts did not , however , require financial compensation in each case . Depending on the severity and scope of the violation of the right to human dignity in the individual case as well as on the motives and the degree of fault of the acting authorities , sufficient redress could be provided by other means than financial compensation for non - pecuniary damage .","Referring to the ORG \u2019s case - law , ORG pointed out that within the scope of the LAW it was also recognised that for inhuman or degrading treatment to trigger a right to financial compensation under LAW and CARDINAL of the Convention , it had to reach a minimum level of severity . The assessment of this minimum level was dependent on the circumstances of the individual case such as the duration of the treatment , its physical or psychological effects or the sex , age or state of health of the victim . Furthermore , it had also been established in the ORG \u2019s case - law that a judgment finding a violation might in itself constitute sufficient just satisfaction for non - pecuniary damage suffered by a victim .","By written submissions dated DATE the applicant lodged a constitutional complaint against the decisions of ORG and ORG arguing , in particular , that without appropriate financial compensation he was being deprived of sufficient redress and satisfaction for the violation of his rights guaranteed by LAW and CARDINAL of the LAW . The protection of human dignity was absolute and could not be subject to a weighting of other interests or legal values . The mere finding of a violation did not have a deterrent effect on the Land and was not an incentive to change the detention conditions in its prisons or prevent a recurrence of similar violations . An infringement of the right to human dignity constituted a serious violation irrespective of the gravity of the interference and thus always required financial compensation .","By a decision of DATE ( file No . CARDINAL BvR CARDINAL\/CARDINAL ) ORG declined to consider the applicant \u2019s constitutional complaint and dismissed his request for legal aid . ORG found that even departing from ORG finding that the conditions of the applicant \u2019s detention had violated his right to human dignity , ORG finding that there was no automatic link between the finding of a violation of LAW of LAW and the granting of financial compensation under LAW taken in conjunction with LAW did not give rise to any concerns under constitutional law . LAW did not require the granting of a particular kind of compensation but only regulated the relevant authorities\u2019 \u2019s conclusion \u2013 as upheld by ORG \u2013 that the applicant had been granted sufficient redress by ORG finding that the conditions of his detention had constituted a violation of LAW did thus not raise any concern from a constitutional law perspective . While it was true that , LAW CARDINAL \u00a7 CARDINAL of LAW , a violation of human dignity could not be justified by weighing it against other constitutional concerns , this did not concern the possibility of taking into account the severity of the violation in the determination of the kind and amount of compensation to be awarded to the victim .","LAW stipulates that human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authorities .","Under LAW , taken in conjunction with LAW , an individual has the right to be compensated by the ORG for any damage arising from a breach of official duty committed by a public servant . Under Section CARDINAL \u00a7 CARDINAL of LAW ( in its version in force until DATE and applicable to damage caused before that date ) adequate financial compensation for non - pecuniary damage can only be claimed in the case of injury to the body or health , or in the case of deprivation of liberty ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101936","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF ABUYEVA AND OTHERS v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13+2;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicants are the CARDINAL NORP nationals listed below :","PERSON , born in DATE ;","PERSON , born in DATE ;","PERSON , born in DATE ;","PERSON ( also spelled as PERSON ) , born in DATE ;","PERSON , born in DATE ;","Mr PERSON , born in DATE ;","Mr PERSON , born in DATE ;","Ms Malizh Byutukayeva , born in DATE ;","PERSON , born in DATE ;","PERSON , born in DATE ;","PERSON , born in DATE ;","PERSON ( also spelled as Nurshan ) PERSON , born in DATE ;","PERSON , born in DATE ;","Mr PERSON , born in DATE ;","Mr PERSON , born in DATE ;","PERSON , born in DATE ;","Ms. PERSON , born in DATE ;","Ms. PERSON , born in DATE ;","PERSON , born in DATE ;","PERSON , born in DATE ;","PERSON ( also spelled as GPE ) PERSON , born in DATE ;","Ms Maret Musayeva , born in DATE ;","Ms Malizha Osmayeva , born in DATE ;","PERSON , born in DATE ;","Mr PERSON , born in DATE ;","Mr PERSON ( also spelled as GPE and PERSON ) , born in DATE ;","PERSON ( also spelled as PERSON ) , born in DATE ;","Ms Mani ( also spelled as ORG , born in DATE ; and","PERSON ( also spelled as PERSON ) , born in DATE .","PERSON lives in ORG , PERSON lives in ORG and PERSON lives in GPE , GPE . The other applicants live in the village of LOC , in the LOC district , GPE .","The facts of the case are connected to the application ORG v. GPE , no . CARDINAL , DATE , in that the applicants and their relatives were victims of the attack on the village of ORG that took place DATE . In the ORG case the applicant and her relatives were trying to escape the fighting on DATE when an aviation bomb exploded near their minivan , wounding the applicant and killing CARDINAL of her relatives . In that case the ORG established a number of facts relevant to the present case which can be summarised as follows .","Since the beginning of military operations by the NORP military and security forces in GPE in DATE , the village of ORG had been treated as a \u201c safe zone . \u201d By DATE CARDINAL persons lived there , including local residents and internally displaced persons from elsewhere in GPE . Prior to DATE the residents of ORG had not been informed by the ORG authorities about the possible advance of NORP insurgent formations into the village , whereas such information had been available to federal military commanders . On DATE the village was captured by a large group of NORP fighters escaping from PERSON and the federal military forces subsequently carried out an assault , using weapons such as heavy freefalling aviation bombs , missiles and other arsenal . The CARDINAL roads out of the village were controlled by the military by means of roadblocks . While the roadblock leading towards the district centre of ORG allowed the residents to leave , the other one , placed on the road leading towards the neighbouring village of GPE , remained closed for the majority of the fighting . The shelling of ORG continued until DATE and throughout DATE .","At the material time , all of the applicants lived in GPE - Yurt . As a result of the bombardment , CARDINAL of the applicants ' relatives died ( see table attached ) . Some applicants also sustained various injuries , as summarised below .","In DATE some of the applicants made detailed statements to their representative , the Stichting NORP Justice Initiative ( SRJI ) , to describe the circumstances of the deaths and injuries resulting from the attack . Others submitted documents certifying the deaths of their relatives , without further explanations . The various statements and submissions can be summarised as follows .","Marusya Abuyeva lives with her family in GPE - Yurt at CARDINAL FAC . In DATE they heard rumours that their village could be taken over by fighters who had escaped from ORG and who had already been spotted in the villages of ORG and ORG . On DATE the applicant and her family tried to leave for ORG in a horse - drawn cart . They were prevented from doing so by military servicemen at the roadblock , who explained to them that no one would be allowed to leave the village .","NORP In TIME of CARDINAL DATE the applicant witnessed a large group of armed fighters entering the village from the direction of ORG to the north of the village . The applicant and her family went into the cellar , anticipating and fearing the bombardment which started soon afterwards .","During TIME there was a lull in the attack and the applicant 's son , PERSON ( born in DATE ) , went upstairs . DATE the applicant followed him upstairs and saw a group of men in the courtyard , who told her that PERSON had been killed . Their house had been destroyed by an artillery shell .","NORP Marusya GPE , her husband and her son PERSON took the body of PERSON and tried to leave the village through the roadblock , heading north towards the village of ORG . According to the applicant , it took them TIME to cross the distance of CARDINAL or QUANTITY to the roadblock because of the shelling and confusion . By the time they reached the roadblock , there were already many other residents there . The military refused to let anyone through .","NORP Marusya GPE and her family , along with other refugees , spent the ensuing DATE camping in houses situated near the roadblock , because the servicemen assured them that it would be safe to remain there . Nevertheless , the houses were shot at on CARDINAL occasion , as a result of which CARDINAL people were killed and about QUANTITY wounded . They could not return to the village because of the fighting . The applicant and other residents suffered from cold and hunger . On DATE they were allowed to go to ORG .","On DATE ORG civil registration office ( hereinafter \u201c the district civil registration office \u201d ) recorded PERSON death and that it had occurred in ORG on DATE .","According to the applicant , upon returning home they found their house and property destroyed . In DATE she was interviewed by NORP , an investigator from the military prosecutor 's office , who assured her that the persons responsible for the attack would be identified and that she would receive compensation . She had not heard anything further in that regard .","PERSON lived in ORG . In DATE she was trading in the ORG market together with PERSON . When the city came under bombardment she , together with her family , went to ORG where they all stayed with PERSON sister . The applicant considered ORG to be a safe place because there was a military unit stationed there and there was no fighting . The applicant and PERSON traded in the local market and on DATE went to the market in ORG .","On DATE some NORP military servicemen stopped the applicant and ORG , PERSON son , on the road to the village of ORG because they had an order not to let anyone out of the village .","Early in the morning on DATE the applicant learned that the village had been occupied by fighters . Soon afterwards , shelling started from the direction of the north .","NORP The applicant , her family and PERSON family took shelter in the basement of a house situated further down the road . TIME , an official from the village administration came to that house and told them that the military had allowed residents to leave in the direction of ORG . PERSON , her CARDINAL sons \u2013 Islam , PERSON and PERSON \u2013 and the applicant 's son , PERSON ( born in DATE ) , remained in the cellar because they wanted to collect their belongings and leave with their vehicles .","The applicant walked in a group of CARDINAL people , together with PERSON sister , daughter ( PERSON , applicant DATE ) and CARDINAL grandchildren . Despite the shelling that had been going on , the applicant reached ORG at TIME on DATE .","On DATE she returned to the village . Together with PERSON relatives , the applicant found that PERSON sister 's house had been destroyed .","On DATE some men helped them to clear the ruins . They found CARDINAL bodies in the cellar of the house , including those of PERSON ( the second applicant 's son ) , PERSON and her CARDINAL sons . They had been killed by an explosion . There were also large craters left from bombs that had fallen near the house ( see statement by PERSON below ) .","On DATE the district civil registration office issued a death certificate in respect of PERSON . The date and place of death were recorded DATE in ORG .","PERSON submitted that during DATE she had been interviewed by an investigator from the military prosecutor 's office at the GPE - Yurt village administration office . At the end of the interview , the applicant signed the transcript and was assured that she would be informed of the progress of the investigation . In DATE the applicant learned from other residents of ORG that the investigation had been closed DATE but that no one had been informed at the time .","PERSON lives in ORG at CARDINAL FAC . Shelling of the village started at TIME on DATE . The applicant 's family went down into the basement of their house . At TIME the third applicant 's father , PERSON ( born in DATE ) , was wounded in the courtyard as a result of a blast . The applicant and her mother brought PERSON to the cellar of his cousin 's house but were unable to give him any medical aid . There were a lot of people , including women and children , at the house . On DATE the applicant and other people went to ORG under continuous shelling .","On DATE the applicant 's brother came to ORG and told them that their father had died of his wounds on DATE .","On DATE the district civil registration office issued a death certificate . The date and place of PERSON death were recorded DATE in ORG .","PERSON submitted that CARDINAL after the events , she and her mother had been interviewed by an official from the military prosecutor 's office . They had not heard further in that regard .","The applicants ' family is from ORG . In DATE they were staying with their relatives in GPE , at CARDINAL Chkalova Street . The family consisted of PERSON , her husband PERSON ( born in DATE ) , their daughter PERSON ( born in DATE ) , and CARDINAL sons , ORG and PERSON ( born in DATE and DATE respectively ) . Heavy shelling of the village started on TIME .","The applicants took shelter at CARDINAL Chkalova Street . At TIME they got into a ORG truck and drove towards the centre of the village but because of the heavy shelling they had to abandon the vehicle and return to the cellar , under fire .","Soon afterwards a missile hit the house where they had been hiding . Each of the applicants was wounded and CARDINAL other people were killed on the spot . The fourth applicant 's son called their neighbours , who helped to take the wounded to another house . They remained there \u2013 without proper medical assistance \u2013 until TIME .","During TIME CARDINAL DATE the family and CARDINAL other relatives went towards ORG in a car . On DATE , the fourth applicant was admitted to ORG hospital where she was operated upon . Her husband was immediately transferred to the hospital in GPE , Ingushetia .","PERSON remained in the hospital in Achkhoy - Martan until DATE . The document issued by the hospital upon discharge noted that she had suffered from several splinter wounds , including piercing of the left lung , severe loss of blood and inflammation , and that on DATE she had been operated upon for a second time but that a splinter had remained in her body .","Mamudtsalya PERSON remained in the FAC hospital until DATE . He was diagnosed with a shell wound to the head and with concussion and he was operated on at the FAC . He also continues to have a splinter in his head . He was granted disability of the first degree and for a long time was unable to move or eat without assistance .","PERSON sustained a wound to the face . In DATE she underwent surgery on her eyelids in a specialised hospital in GPE .","PERSON submitted that she had been interviewed by a military prosecutor on CARDINAL occasion . The investigator assured her that she would be notified of the results and that compensation would be paid to the family . The applicants had not been informed of any further developments and had not received any compensation .","The applicants are brother and sister . They live with other members of their extended family in ORG at CARDINAL LOC . PERSON is married and has QUANTITY children . On TIME the applicants saw a group of armed fighters in the village . Soon afterwards heavy shelling started .","During TIME CARDINAL DATE , PERSON was wounded in the left leg by a shell explosion in his courtyard . He lost a lot of blood and could not move . On DATE he was found in the courtyard of his house by a group of NORP servicemen who gave him first aid and transferred him to the Urus - Martan hospital . There he was diagnosed with shell wounds to the left leg , frost bite , loss of blood and hypothermia . On DATE his left leg was amputated as a result of developing gangrene . He remained in the hospital until DATE .","PERSON and other members of the family tried to escape the fighting through the exit towards ORG . On DATE they reached the roadblock but were not allowed to pass . The eighth applicant and other residents were advised by the servicemen to wait in CARDINAL empty houses near the roadblock . On DATE these houses were shot at from passing military vehicles , as a result of which both PERSON and PERSON daughter , PERSON , were wounded . The military then allowed the QUANTITY women to leave the village . Other servicemen delivered them to the Urus - Martan district hospital where they were given first aid .","On DATE PERSON was transferred to the ORG district hospital in GPE , where she was diagnosed with a shell wound to the right upper part of the torso , an open fracture of the right shoulder blade and infection of the wounds . She was operated upon and remained in hospital until DATE . No documents were submitted in relation to PERSON .","During DATE , an investigator from the military prosecutor 's office interviewed PERSON about the events of DATE . She was told that she would be informed of the outcome of the proceedings .","PERSON is PERSON sister - in - law ( see statement by PERSON , applicant CARDINAL , below ) . She had CARDINAL children , including PERSON ( born in DATE ) , PERSON ( born in DATE ) , PERSON ( born in DATE ) , and PERSON , who at the relevant time was DATE . She lived at CARDINAL Chkalova Street , ORG with her husband and children . At the material time , there were CARDINAL internally displaced people from the village of ORG staying in their house .","Early in the morning on DATE the applicants took shelter in the large basement of PERSON CARDINAL - storey house . CARDINAL people gathered there , including old people and children . Heavy shelling continued all TIME .","At TIME there were CARDINAL strong blasts which destroyed the house and damaged the basement . CARDINAL people died immediately and another CARDINAL died later of their injuries . PERSON received several wounds to the hands and body . Her CARDINAL children , PERSON , PERSON and GPE , were also wounded .","She and her CARDINAL wounded children were taken by a fellow villager in a car to Achkhoy - Martan . In the confusion she had lost track of her son PERSON . Having sent her CARDINAL wounded children to the hospital in GPE , she returned to ORG to find PERSON at her neighbours ' house . Later on the same day PERSON , her husband and their son PERSON , along with other people , managed to leave the village under shelling . They were brought to ORG hospital .","PERSON was diagnosed with a piercing wound to the chest , a shell wound to the right hand and with concussion . She remained in the hospital of ORG until DATE .","PERSON was diagnosed with shell wounds to the left waist area and left shoulder . PERSON was diagnosed with a shell wound to the left hand . Both girls were discharged from the Urus - Martan hospital on DATE .","PERSON son PERSON died on DATE in the hospital in GPE . On DATE the district civil registration office issued a death certificate confirming this information .","PERSON was interviewed as a witness by the officers of the military prosecutor 's office . In DATE she learnt that the case had been closed in DATE .","PERSON lives in her own house in GPE - Yurt at CARDINAL Chkalova Lane . On DATE she was at home with her CARDINAL children : NORP PERSON ( applicant CARDINAL , born in DATE ) ; PERSON ( born in DATE ) ; PERSON ( born in DATE ) ; PERSON ( applicant CARDINAL , born in DATE ) ; PERSON ( applicant CARDINAL , born in DATE ) ; and PERSON ( born in DATE ) .","On DATE the applicant 's extended family and many neighbours gathered in the large basement of her house . Heavy shelling continued all morning . At TIME there were CARDINAL strong blasts . The neighbours later told them that a large aviation bomb dropped by parachute had fallen on the house .","According to the applicant , CARDINAL people died on the spot and CARDINAL others died soon after . PERSON suffered wounds to her back and hands . Her daughter PERSON suffered injuries to the face , hands , legs and back .","PERSON and her children ran to another house under constant fire and shelling . However , shortly afterwards that house was also hit by a bomb , and her son PERSON suffered an injury to the head .","PERSON , her daughter PERSON and son PERSON were picked up in the street by a neighbour in a car who took them to a hospital in Achkhoy - Martan . They received first aid there , although no medical records of this were produced .","On DATE , DATE , the applicant 's CARDINAL other children arrived at ORG . Her son NORP had been wounded and taken by bus to ORG hospital .","The applicant submitted that they had remained in ORG hospital for DATE , after which they had been sent to a rehabilitation centre . The applicant did not submit any medical records .","At some point , PERSON was interviewed by officials from the military prosecutor 's office but did not receive any information about the progress of the investigation or any compensation .","PERSON lives in GPE at LOC . On DATE she was at home with her husband and CARDINAL children ( born DATE ) . Early in the morning , the applicant and her family went to the cellar of the ORG ' house situated nearby .","Some time in TIME CARDINAL powerful blasts occurred . Several people were killed and wounded . The applicant 's son PERSON , who was CARDINAL at the time , was wounded in the head . The applicant , who was holding her youngest child in her hands , jumped out of the window , but had to climb back in because of the continued shelling . She and her CARDINAL children then got out of the basement and were taken by neighbours to another house . The applicant did not see her husband .","At TIME , the applicant and her children escaped ORG in a bus , under heavy shelling . They received first aid in the hospital of ORG and were subsequently taken in by their relatives .","On DATE the applicant learnt that her husband , PERSON ( born in DATE ) , had died as result of the explosion at the ORG ' house . On DATE the district civil registration office certified the death of PERSON in ORG on DATE .","In DATE the applicant was summoned to the local prosecutor 's office and interviewed by an investigator from the military prosecutor 's office . The same investigator visited the ORG ' house and took photographs at the site of the explosions .","In DATE she learnt from her fellow villagers that the investigation had been closed in DATE .","Khava PERSON lives in GPE - Yurt at CARDINAL Chkalova Street . On TIME her extended family gathered in their neighbours , the ORG ' , basement . TIME , despite the shelling , the applicant left the basement and went to her house in order to fetch some food . When she was returning to the basement she saw CARDINAL explosions \u2013 one near the house and CARDINAL directly hitting it . There was a lot of smoke and debris thrown around . Among the wounded people taken out of the basement , the applicant saw her mother - in - law , PERSON ( born in DATE ) , who had suffered injuries to the body and head . PERSON and the other wounded were taken by car to ORG .","Khava PERSON and the rest of her family tried to get out of GPE DATE by a bus , but were forced to return to the basement of a nearby house because of air strikes . During TIME of CARDINAL DATE they went by foot to the western edge of the village where a large number of people had gathered trying to escape the fighting . At first , the soldiers at the roadblock refused to let the men through , but after pressure from the families eventually let everyone go . In Achkhoy - Martan she learnt that PERSON had died . On DATE the district civil registration office recorded PERSON death as having occurred in ORG on DATE as a result of a head injury .","DATE . DATE , the applicant returned to ORG and found her house destroyed . During DATE she was interviewed by an investigator from the military prosecutor 's office . She was assured that a criminal investigation was being carried out into the deaths of her mother - in - law and of other people and that she would be informed of its results .","PERSON lives in ORG at CARDINAL FAC . In DATE the applicant lived there with her mother , daughter PERSON ( born in DATE ) , CARDINAL nieces and nephew , PERSON ( born in DATE ) .","On TIME the applicant and her family went to the basement of the house situated at CARDINAL FAC , because they had heard artillery strikes at the neighbouring village of LOC . They spent DATE of CARDINAL DATE in the basement . At TIME on DATE , the applicant 's nephew PERSON went out into the street and returned to tell them that women and children could leave the village .","The applicant and her family members walked towards the centre of the village . When they were QUANTITY away from their house , PERSON returned to the house to let the cattle out . As soon as he came out of the gates to their house , a ORG minivan in the street right in front of the gates was hit by a missile launched from a plane . The applicant was hit by a shock wave and her daughter PERSON fell to the ground and broke her collar bone . When she stood up , the applicant saw the body of her nephew on the ground in front of their gates . Some other people held her back when she wanted to return home . Instead , the applicant ran towards the road out of the village . At some point they were picked up by a bus and taken to ORG .","On DATE the applicant returned to ORG and found the body of her nephew , who had sustained numerous shrapnel wounds to the head and torso . She kept his jacket , which was later taken from her by the military prosecutor 's office . The applicant later learnt that the ORG ' family were in the ORG minivan ( see GPE v. GPE , cited above ) .","On DATE the district civil registration office issued a death certificate in respect of PERSON , recording that he had died on DATE in GPE .","During DATE , PERSON was interviewed by the military prosecutor 's office and she showed them the place where her nephew had been killed . On DATE occasions she was again interviewed as a witness . The applicant did not recall being formally granted victim status , though she had asked for this on several occasions .","Aliya Debirova lives with her extended family in ORG at CARDINAL Chkalova Street . On DATE the applicant , her husband PERSON , their sons , PERSON and PERSON , and some other relatives were at home .","DATE . Early in the morning they saw armed men in the streets of the village . Soon afterwards , shelling and aerial bombing began . The applicant and her family members went to the basement of their neighbours ' house . Her son PERSON and her husband then went to another house . At QUANTITY the applicant 's husband , PERSON , was killed by an explosion in the courtyard of his house .","After that , the applicant and other members of her family walked to the centre of the village and got into a ORG truck going to ORG . The shelling continued , and at some point the roof of the truck 's cabin was blown off by a splinter . The truck finally reached the roadblock , where the military inspected the vehicle and let it through . The applicant and her family remained in ORG for DATE . When they returned to ORG , their house had been destroyed and the cattle killed . Her husband 's body had been already buried .","On DATE the district civil registration office recorded the death from third and fourth degree burns of PERSON , aged DATE , on DATE in ORG .","The applicant submitted that DATE she had been interviewed by officials from the military prosecutor 's office . The officials had filmed the place where her husband had been killed and the destroyed house with a video camera . They had told her that she would receive compensation .","The applicant lives with her family at CARDINAL-b LOC in GPE . On DATE she and her family members were at home when a group of fighters came into their house . They told the family to go down into the basement in case the village was shelled . The applicant and her relatives went to the ORG ' family house situated further along LOC . There were a lot of people in the FAC ' basement .","At TIME there was a powerful explosion . The applicant was wounded in the left side of her torso and suffered concussion . Her motherin - law , PERSON , and brother - in - law , PERSON , were also injured . The applicant stated that QUANTITY people had died as a result of the explosion at the ORG ' house .","Neighbours put the applicant , her mother - in - law and another wounded woman into a car . Under shelling , the car reached the roadblock . At first , the military refused to let them through . DATE , another man arrived at the roadblock with his mother , PERSON , who had also been wounded in the same house ( see the statement of PERSON , applicant DATE , above ) . The military finally let them pass .","The applicant was admitted to ORG hospital . The doctors first treated PERSON and PERSON , as they had suffered more serious wounds . DATE the applicant was operated upon and a piece of shrapnel was removed from her body .","In the meantime the applicant 's brother - in - law had been taken by her husband , along with other wounded , in a PERSON utility vehicle towards ORG . PERSON died of his wounds during the journey and his body was left in GPE . The other wounded were taken to the Urus - Martan district hospital .","On CARDINAL and on DATE , respectively , the district civil registration office issued death certificates for PERSON , aged DATE , who had died on DATE in ORG from piercing shell wounds to the abdomen , and for PERSON , aged CARDINAL , who had died on DATE in ORG from numerous splinter wounds to the head .","PERSON remained in ORG district hospital until DATE . She was operated on for splinter wounds to the left side of the body .","In DATE she was interviewed by representatives of the military prosecutor 's office who promised to inform her about the progress of the investigation and to award her compensation . In DATE she learnt that the investigation had been closed . She stated that she continued to suffer from her injuries .","Maret Musayeva lives in GPE - Yurt at LOC . TIME on DATE a group of fighters entered the applicant 's house . When the shelling started the applicant took her CARDINAL daughters , at that time aged DATE , to her neighbours , the ORG ' , house . At TIME a large bomb fell on the house . The applicant was wounded in the back . She stated that CARDINAL people had died on the spot and that CARDINAL more later died in hospital .","The applicant and others were rescued by neighbours . She was brought to ORG under fire . She remained there in hospital for DATE ; she submitted no medical records in this respect .","NORP Some time later , the applicant was questioned by an official from the military prosecutor 's office who assured her that the persons responsible for the attack would be identified and that she would receive compensation . Only later , in DATE , did she learn that the investigation had been terminated .","Malizha Osmayeva lives at CARDINAL FAC in GPE . In DATE she lived there with her husband PERSON , their CARDINAL children , her mother - in - law and other relatives .","NORP The applicant 's family hosted displaced people from other localities affected by the hostilities . The applicant submitted that the arrival of a large group of well - armed fighters in TIME on DATE was unexpected .","At TIME the village came under fire from planes and helicopters . The applicant , her extended family and her neighbours gathered in the basement of her house . According to the applicant , there were CARDINAL families sheltering , with a total of CARDINAL children . At TIME the applicant 's husband went upstairs to get drinking water . There was an explosion nearby and PERSON was seriously wounded in the head . The people in the basement brought him back down but could not give him proper medical assistance . They remained there until TIME when a neighbour came to collect his family with a PERSON utility vehicle and picked up the applicant and her husband .","Under fire , the vehicle brought the applicant 's husband to the hospital in Achkhoy - Martan , where he died on DATE .","On TIME the applicant 's CARDINAL children and mother - in - law were taken out of ORG by the same neighbour .","On DATE ORG civil registration office recorded the death of PERSON on DATE in ORG from a piercing wound to the head .","At some point , the applicant was interviewed at her home by an investigator from the military prosecutor 's office . The investigator inspected the site where the applicant 's husband had been wounded . Some time later , CARDINAL other investigators collected the clothes her husband had been wearing on DATE from her . The clothes were never returned to the applicant .","At some point , an officer of ORG district prosecutor 's office told the applicant that she would be informed of the outcome as soon as the investigation was over .","In DATE the applicant received a letter from the military prosecutor 's office of ORG which informed her that the investigation had been closed . She did not receive any help from the ORG , although her husband had been the sole bread winner of the family .","PERSON lives in PERSON with her family . In DATE her family fled to ORG . She stayed in her aunt 's house on FAC . The following family members came to ORG with the applicant : her mother , PERSON ( born in DATE ) ; her brothers , ORG ( born in DATE ) , PERSON ( born in DATE ) , and PERSON ( born in DATE ) ; and her daughters , PERSON ( born in DATE ) ; and ORG ( born in DATE ) .","Together with PERSON ( applicant CARDINAL , see her statement above ) the applicant 's relatives traded goods in the markets of GPE and ORG . On DATE they were prevented from leaving the village of ORG by the soldiers manning the roadblock on the main road .","Early in the morning on DATE the shelling of the village started . The applicant , her CARDINAL daughters , PERSON and her other relatives decided to leave ORG on foot , while her mother and CARDINAL brothers decided to wait for a quiet period so that they could leave with their trucks .","The applicant and the others reached the main road but could not proceed because of intense shelling . They took shelter in the cellar of a house along with CARDINAL other people , including many children . There was very little space inside . At TIME everyone went out in the street and walked towards the roadblock . The military let them cross and they reached ORG .","On DATE the applicant learned that her mother , PERSON , and her CARDINAL brothers , ORG , PERSON and PERSON , had been killed in the cellar of the house at CARDINAL FAC , together with PERSON , PERSON son . CARDINAL people were killed in the basement of that house as the result of an explosion of a large aviation bomb , which had left a huge crater .","On DATE the district civil registration office issued CARDINAL death certificates in respect of the applicant 's mother and CARDINAL brothers . The deaths were recorded as having occurred on DATE in ORG .","At some point the applicant was interviewed by an investigator from the military prosecutor 's office in the ORG administration . The applicant informed him of her relatives ' deaths . PERSON was interviewed on DATE . The applicant was assured that she and the other relatives of the victims would be informed as to the progress of the investigation .","NORP In DATE the applicant learnt from other residents of ORG that the investigation had been closed . She had never received any formal notification of that fact .","PERSON lives in GPE - Yurt at CARDINAL FAC . As soon as the shelling started TIME of CARDINAL DATE , the applicant and her family members went to shelter in the cellar of their house . TIME the applicant heard that the military would allow women and children to leave the village .","At TIME the applicant , her CARDINAL nephews ( children of her brother PERSON ) , PERSON and the latter 's relatives started walking towards ORG ( see statements by applicants CARDINAL and CARDINAL above ) . The applicant 's mother , PERSON , her brother , PERSON , and his wife , PERSON , decided to remain in the house . CARDINAL other people who had been displaced from ORG remained with them : PERSON , her CARDINAL sons , ORG , PERSON and PERSON , and their friend , PERSON .","The shelling continued as they walked , and at some point they were forced to look for shelter in a cellar of a house . They stayed there until TIME when there was a lull in the attack and they took the opportunity to walk further towards the roadblock . At first , the military objected to the men leaving the village but finally let everyone through . The applicant and others walked to ORG .","On DATE the military permitted the residents to enter the village for TIME . The applicant and her CARDINAL male relatives found their house destroyed by a bomb blast . As a result of the blast , a wall of the cellar had collapsed and killed everyone who was inside . On DATE the applicant and her relatives removed and buried the bodies .","On DATE the district civil registration office noted the deaths of PERSON , aged DATE , PERSON , aged CARDINAL , and PERSON , aged DATE , which had occurred on DATE from numerous splinter wounds .","In DATE the applicant was interviewed by an investigator from the military prosecutor 's office in the presence of the village police officer . The investigator assured the applicant that she would be informed of the results of the investigation . In DATE the applicant heard that the case had been closed , and upon application to the military prosecutor 's office was officially informed that the case had been closed DATE .","PERSON lives in GPE - Yurt at DATE FAC , near the central mosque . On DATE she was at home with her family : her father , PERSON ( born in DATE ) , her brother and her sister . On DATE they went down into the cellar because they heard the sound of military planes above them . Some time DATE , the applicant 's father went to see the applicant 's other sister , who lived with her family further down the street . TIME after he had left , there was a missile attack which , as the applicant later learned , had killed her father in the street .","Later in the afternoon of CARDINAL DATE , the applicant 's sister 's CARDINAL - member family joined her . However , DATE they moved further away from the centre of the village , judging it to be safer . They spent TIME and TIME there .","NORP In TIME CARDINAL DATE the applicant and her family members walked to the roadblock situated on the road out of the village towards PERSON . They were detained with numerous other residents of ORG , as the servicemen at the roadblock referred to orders not to let anyone out of the village . However , as a result of negotiations and mounting pressure the applicant and her relatives were allowed to pass .","DATE the applicant and her sister returned to ORG . They learnt that their father had been killed on CARDINAL February CARDINAL by a missile strike . The applicant found pieces of clothes in the street which she identified as belonging to her father and buried them . Their house was also destroyed .","On DATE the district civil registration office issued a death certificate in respect of Abdulshakhit PERSON . The date and place of death were recorded as DATE in ORG .","At some point , the applicant was interviewed by investigators from the military prosecutor 's office and granted victim status in the criminal investigation . She had not been made aware of any other actions taken to further the investigation by the prosecutor 's office .","Mani Umalatova lives in GPE - Yurt at CARDINAL FAC . Her family 's house is situated near the edge of the village . In DATE a large number of relatives from ORG stayed in their house and at some point their number reached CARDINAL people . On DATE they notified their presence to the head of the village administration and learned that no one was allowed to leave the village .","On CARDINAL and DATE , the applicant 's relatives tried to leave the village either by car or on foot DATE initially attempting to go to ORG and afterwards trying to leave for ORG . However , on DATE they were prevented from leaving the village by the servicemen manning the roadblocks . The soldiers referred to a formal order from their superiors and at CARDINAL point fired a shot in the air .","NORP In TIME of CARDINAL DATE the applicant learned that fighters had entered the village . She saw several military trucks with NORP servicemen driving out of the village . Once the bombing started , the applicant and her family had to look for shelter in several basements before they found sufficient space .","During TIME CARDINAL DATE , a relative told them that the military had allowed people to leave ORG if they did so within TIME . The group loaded into CARDINAL ORG trucks , made a white flag out of a bed sheet and drove towards the centre of the village . However , because of aerial attacks on several occasions , they had to stop , get out of the trucks and seek shelter in the nearby houses .","The CARDINAL vehicles turned towards the road out of the village leading to ORG . When they reached the roadblock , the servicemen refused to let anyone through . The servicemen suggested that they join the people camped in CARDINAL empty houses near the roadblock and assured them that they would be safe . However , later one of the houses was shot at from a tank .","On TIME , the applicant again went towards the roadblock \u2013 hoping that her family would be allowed to leave . As she did so , she saw a convoy of NORP military vehicles driving through the roadblock at the edge of the village . The military convoy opened fire towards the houses where people had sought shelter . The applicant 's son , PERSON ( born in DATE ) , was shot dead while he reached for food in the cabin of their relative 's ORG truck . The applicant submitted that another person was killed at the same time .","On DATE the applicant reached the roadblock and told the servicemen how her son had been killed . After a while she was helped to cross the roadblock by NORP militiamen and taken to GPE .","She returned to ORG DATE and found that her house and CARDINAL other houses in their courtyard had been destroyed .","On DATE the district civil registration office issued a death certificate stating that Salambek Umalatov had died on DATE in ORG .","The applicant stated that she had obtained some compensation for the destruction of her house but not for the other buildings forming part of the household . At some point , PERSON was interviewed in relation to her son 's death by investigator PERSON signed the transcript of the interview and accompanied the investigator to the place where her son had been killed . She was assured that she would be informed of the results of the investigation .","PERSON lives at QUANTITY FAC in GPE . Her extended family , including her mother , CARDINAL brothers , sisterin - law and mother - in - law , lived with her at the same address . In total , the extended family had CARDINAL children , including the applicant 's DATE old son , PERSON .","Early in the morning of CARDINAL DATE , NORP military forces started to shell the village . Their neighbour 's house was completely destroyed by a direct hit . The applicant 's family and CARDINAL displaced people from ORG went down into the basement located in their courtyard , under a garage . They remained there for the whole of DATE and the following night .","On TIME the applicant 's son PERSON was wounded by shrapnel . The applicant saw CARDINAL injuries on her son 's body \u2013 one to his head and CARDINAL on the left side of his chest . There were no medicines in the cellar and no one could give medical assistance .","NORP Some time later , a neighbour told them that the residents would be allowed to leave through a \u201c corridor , \u201d although they did not know which direction that would be . The applicant and her family , including her wounded son , climbed onto the cart attached to their neighbour 's tractor .","NORP They drove towards the nearest way out of the village , leading to the village of GPE . When they arrived there , there were already a lot of people \u2013 CARDINAL in the applicant 's estimate . No one was allowed to get closer than QUANTITY from the roadblock , otherwise the servicemen fired in the air . The applicant and others spent DATE in the open .","During TIME CARDINAL DATE , a group of NORP militiamen came from the direction of the roadblock and took the people into the courtyard of a large empty house that was situated nearby . They told them to wait there .","The applicant 's son died of his wounds early in the morning on DATE . He was buried in the courtyard of the house .","The applicant and others remained in that house until TIME on DATE , when they were all allowed to pass through to ORG . On DATE she returned to ORG and found her house partially destroyed .","On DATE the district civil registration office recorded the death of PERSON , born in DATE , on DATE in ORG .","The applicant was aware of criminal proceedings in relation to the events of DATE . At some point , she was taken by the local police officer to ORG , where she testified to some investigators about the death of her son and described his injuries . After the interview , she was assured that she would be informed of the outcome of the proceedings .","NORP In DATE the applicant had learned from other residents of the village that the investigation had been closed .","PERSON ( applicant DATE ) submitted a copy of the death certificate issued by the district civil registration office on DATE recording the death of her sister , PERSON , on DATE in ORG . According to the documents from the investigation file , she had been granted victim status in the proceedings in DATE ( see below ) .","Makhmud PERSON ( applicant CARDINAL ) submitted copies of death certificates issued by the district civil registration office in relation to his mother and step - mother respectively . PERSON , aged DATE , had died in Achkhoy - Martan on DATE from a piercing wound to the abdomen . The death was recorded on DATE . PERSON , aged DATE , had died in ORG on DATE from numerous shrapnel wounds to the head and second and third degree burns . Her death was recorded on DATE . According to the file , PERSON was granted victim status in the criminal case in DATE ( see below ) .","In their observations dated DATE , the Government did not dispute the injuries and deaths of the applicants and of their relatives . They presented the following description of the events . Referring to the information obtained by the criminal investigation , they stated that on TIME DATE , a group of guerrilla fighters under the command of field commander PERSON had entered ORG . According to information supplied by intelligence sources , the members of the illegal armed groups were well trained and equipped . They were armed with large - calibre weapons , grenade launchers and mortars . They also had armoured vehicles . Understanding that federal forces were pursuing them and that fighting was inevitable , they proceeded to occupy the local residents ' stone and brick houses . In the cellars of those houses they prepared firing points and established fortified defence positions . The local residents remaining in the village were used as a \u201c human shield \u201d .","After ORG had been surrounded , reconnaissance groups tried to enter the village and ensure that the fighters were disarmed and detained . However , they were met with fire and CARDINAL of the groups found itself surrounded .","The command corps of the operation took a decision to evacuate the civilians . Information about the opening of an exit corridor was delivered to the local residents between CARDINAL and TIME on DATE through a loudspeaker . CARDINAL control points were set up to allow for filtering of the population and checking of identity documents in order to prevent the fighters forcibly exiting the village .","At the same time the commanders of the operation decided to employ artillery and attack aircraft . This was done in view of the numerical superiority of the fighters and in order to prevent their grouping together and breaking through the army 's position . After the strikes started the members of the illegal armed groups , unwilling to surrender , continued their resistance and used local residents as cover . They did not allow the federal authorities to organise the evacuation of the remaining population . Many residents were leaving ORG on their own , using their personal vehicles . In the process they were caught in the crossfire between the fighters and the federal forces and were wounded or killed .","NORP The operation lasted DATE . It involved the use of firearms , artillery and attack aircraft employed with pinpoint precision at the places where the fighters were grouped . The majority of the armed group ( CARDINAL fighters ) were killed , the remaining number dispersed , and the village was freed .","On DATE the prosecutor 's office of ORG initiated a criminal investigation into the events of DATE in ORG .","On DATE the investigation was transferred to the military prosecutor 's office of ORG ( \u201c the military prosecutor 's office \u201d ) . The case file was assigned the number DATE .","It appears that in DATE the investigators interviewed most of the applicants or members of their families , as well as other people who had been in LOC at the time . The applicants submitted that during the interviews they had been assured that the authorities would keep them informed of the progress of the investigation and that they would be granted compensation .","NORP Per the submitted documents , the investigation established that as a result of the operation CARDINAL civilians had been killed and CARDINAL wounded . CARDINAL of the applicants ' relatives were listed among the dead ( not including the second applicant 's son and CARDINAL relatives of the CARDINAL applicant ) . The investigation listed QUANTITY of the applicants as wounded ( applicants CARDINAL - CARDINAL , CARDINAL , DATE and DATE ) , as well as some of their relatives , for example , PERSON ( the seventh applicant 's daughter ) . CARDINAL people were granted victim status in the proceedings , including QUANTITY of the applicants ( applicants CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , and CARDINAL ) . In addition , relatives of applicants CARDINAL , DATE and DATE were also interviewed and granted victim status . These steps were taken DATE .","NORP On DATE the military prosecutor 's office terminated the proceedings in criminal case no . DATE . The decision referred to a large number of documents and to the statements of CARDINAL of witnesses , including local residents , servicemen from various units and commanding officers . The decision heavily relied on the results of the military expert 's report of DATE . That report established that the actions of the command corps involved in the special operation in GPE - Yurt on DATE had been appropriate to the circumstances and in line with applicable laws . On this basis , the investigation concluded that the actions of the command corps had been absolutely necessary and proportionate to the resistance put up by the fighters . It found an absence of corpus delicti in the actions of the servicemen of the NORP forces . By the same decision the victim status of CARDINAL people was withdrawn . The people in question were to be informed of the possibility of seeking redress through civil proceedings .","The applicants submitted that , at that time , they and other victims had not been informed about the termination of the proceedings . It appears that nothing happened until DATE , when the applicants learnt , mostly by hearsay , that the proceedings had been terminated .","DATE , the majority of the applicants wrote to the military prosecutor 's office seeking to obtain information about the progress of the investigation in case no . DATE . They referred to the circumstances of the deaths and wounding of their family members and asked to be granted formal victim status in the proceedings and\/or to be provided with a copy of such a decision if it had already been taken . CARDINAL applicants submitted copies of such letters ( save for applicants CARDINAL , DATE , DATE , DATE , DATE and DATE ) .","NORP In response to these requests , DATE the military prosecutor 's office informed the applicants about the results of the military expert 's report , the termination of proceedings in criminal case no . DATE and the withdrawal of their victim status in DATE . The letters also confirmed that the investigation had established the deaths and injuries of which they had complained and informed them that they could apply to a civil court seeking to obtain compensation for damage . Some of these letters included a copy of the decision of DATE as an enclosure .","On DATE of the applicants ( not including applicants CARDINAL , DATE and DATE ) lodged a complaint with the military court of ORG . In their complaint , they stressed that they had not been informed of the progress of the investigation for a long time and that only in DATE had the military prosecutor 's office forwarded a copy of the decision of DATE to them . The applicants challenged the conclusions of the investigation as to the reasonableness and lawfulness of the use of lethal force which had resulted in numerous casualties . They referred to evidence which , in their view , contradicted the conclusion reached by the military prosecutor 's office . They also questioned the thoroughness of the investigation in criminal case no . DATE . In particular , the applicants noted that the deaths of PERSON , son of PERSON ( applicant CARDINAL ) and of CARDINAL relatives of PERSON ( applicant DATE ) had not been recorded by the investigation and that these people had not been mentioned in the list of people who had died in GPE in DATE . They submitted copies of CARDINAL death certificates and a written statement by PERSON . They also pointed out that the investigation had failed to review the question of damage caused to the residents ' property . They asked the court to quash the decision to terminate the criminal proceedings and to oblige the military prosecutor 's office to resume the investigation in the criminal case concerning deaths and injuries to civilians , to grant each of them victim status in the criminal proceedings and to issue them with copies of the relevant decisions .","On DATE the applicants ' complaint was forwarded to the ORG . On DATE ORG quashed the decision of CARDINAL DATE and sent the investigation back to the military prosecutor 's office . By that time , the investigation had already been resumed by a decision of the military prosecutor 's office dated DATE made with reference to the conclusions drawn by ORG in the ORG case ( cited above ) . The case file was assigned a new DATE CARDINAL\/CARDINAL\/CARDINAL - CARDINALD. It was conducted with reference to Articles CARDINAL part CARDINAL ( e ) ( murder committed by universally dangerous means ) and CARDINAL ( abuse of authority ) of LAW .","DATE ten of the applicants were interviewed and were also granted victim status : applicants CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . The transcripts of interviews and decisions to grant victim status were submitted by the Government to the ORG ( except in respect of applicant CARDINAL ) . According to the Government , relatives of applicants CARDINAL and CARDINAL were also interviewed at that time and granted victim status , but the relevant statements were not submitted . The applicants confirmed their previous statements in relation to the events that took place DATE and about the deaths of their relatives and their injuries . All of the applicants stated that they had applied for administrative compensation for their housing and property which had been destroyed , but that they had not received any .","On DATE the investigation was closed , with the same conclusions as in DATE , on the basis of Article CARDINAL , part CARDINAL of LAW . The decision confirmed the deaths of DATE and the wounding of CARDINAL local residents , without listing their names . An additional expert report was produced by ORG of ORG in DATE , which found that the actions of the command corps in planning and executing the operation had been reasonable and in line with the domestic law . No copy of that report has been disclosed to the applicants or submitted to ORG . In particular , the decision stated in this respect :","\u201c ... The actions of the fighters ( the occupation of ORG by a group of fighters numbering CARDINAL persons , the fighters establishing strongholds in the houses , [ their ] fierce resistance and their using local residents as a \u201c human shield \u201d ) ... represented a real danger to the lives and health of the local residents , and could have entailed unnecessary losses by the federal forces ...","These circumstances required the taking of adequate measures by the command corps in order to prevent the danger of armed assault against the citizens and their lives and property ( residents of ORG and military servicemen ) , in addition to [ the need to safeguard ] the interests of society and the ORG which are protected by law ( the reinstatement of the constitutional order in GPE ) . After issuing a preliminary notification and giving the civilians a real opportunity to leave the village , the subsequent extermination of pockets of the fighters ' resistance by means of artillery and attack aircraft , employing area - point method ( \u0437\u043e\u043d\u0430\u043b\u044c\u043d\u043e-\u043e\u0431\u044a\u0435\u043a\u0442\u043e\u0432\u044b\u0439 \u043c\u0435\u0442\u043e\u0434 ) , did not exclude deaths among civilians . At the same time , the use of such means of extermination was consistent with the circumstances and with the measures taken in order to minimise losses among civilians . The actions of the command corps ( commanders ) during the preparation and carrying out of the special operation aimed at the liberation of LOC DATE were in line with the requirements of relevant field manuals , internal regulations and instructions , were lawful and did not contain elements of criminally prescribed actions \u201d .","NORP The decision to grant victim status to CARDINAL people was quashed . The military prosecutor of ORG in LOC ( UGA ) forwarded the decision to the head of ORG and asked him to identify the victims ' places of residence and to inform them about the closure of the investigation , as well as the possibility of seeking compensation through the civil courts .","The Government submitted that \u201c the interested parties \u201d had been informed of the decision in question on DATE when it had been adopted . The applicants insisted that they had learnt of the decision from the ORG 's observations of DATE . They had not appealed against it .","In their ORG application form of DATE CARDINAL of the applicants ( applicants CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) complained that there had been a violation of their right to property in that their houses and other possessions had been destroyed . No other details or documents were submitted at that time . In DATE the applicants submitted the documents detailed below in response to the ORG 's observations . It is unclear whether these documents have ever been submitted to any national authority .","In DATE , applicants CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and the ninth applicant 's husband obtained certificates from the village administration concerning the state of their houses . These certificates noted the destruction of their houses and indicated the costs of repair , including building materials and , in certain cases , construction costs .","In DATE , applicants CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE drew up lists of their property and household items destroyed in DATE . Each list was attested by CARDINAL witnesses who were local residents . These applicants also submitted estimates of the replacement costs of their household goods which had been compiled in DATE . In DATE and DATE , applicants CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and DATE noted their expenses in relation to their relatives ' funerals .","Until DATE , criminal - law matters were governed by LAW the NORP Federalist Socialist Republic . From DATE , the old Code was replaced by LAW ( \u201c ORG \u201d ) .","Article CARDINAL of the ORG defines the procedural status of a victim in criminal proceedings and lists the rights and obligations vested in that person . It provides that the victim has the right to acquaint him or herself with the entire case file after the closing of the investigation . Article CARDINAL also stipulates that the victims should be informed of procedural decisions to open or close criminal proceedings , grant or to refuse to grant victim status , and to adjourn proceedings . Copies of these decisions should be sent to the victims . The victims also have access to any decisions to order expert reports and to the conclusions of such reports ( Article CARDINAL ) .","Article CARDINAL of the ORG lays down a judicial procedure for the consideration of complaints . An order of the investigator or prosecutor to refuse to institute criminal proceedings or to terminate a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede the citizen 's access to justice , may be appealed against to a local district court which is empowered to check the lawfulness and grounds of the impugned decisions . No time - limits are set for the lodging of such complaints .","Article CARDINAL of the ORG prohibits the disclosure of information from the preliminary investigation file . Under part CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and interests of the parties to the criminal proceedings or prejudice the investigation . Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited ."],"violated_articles":["13","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5212","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2000,"docname":"J\u00c4\u00c4SKEL\u00c4INEN AND OTHERS v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicants are PERSON ( \u201c AJ \u201d ) , Mr PERSON ( \u201c GPE ) , PERSON , Mr PERSON and ORG . The third applicant is the widow of Mr PERSON ( \u201c JK \u201d ) , who was the first and the second applicant \u2019s brother . The fourth and the fifth applicant are Mr PERSON children . The applicants are all NORP nationals , born in DATE , DATE and DATE respectively . They reside in GPE , GPE , GPE , PERSON and PERSON , respectively . The first applicant represents the other applicants before the ORG .","In proceedings before ORG ( kihlakunnanoikeus , h\u00e4radsr\u00e4tten ) in DATE ORG , JK and PERSON unsuccessfully contested the validity of a will drawn up by their parents PERSON and ORG and allegedly amended without the plaintiffs\u2019 knowledge . In DATE the GPE appeal was dismissed by ORG ( hovioikeus , hovr\u00e4tten ) of ORG and in DATE leave to appeal was refused by ORG ( korkein oikeus ) . A procedural complaint and request for annulment were refused by ORG in decisions rendered in extraordinary proceedings in DATE ( by justices P , T and others ) as well as on DATE ( by justice T and others ) .","In proceedings before ORG in DATE ORG , ORG and PERSON unsuccessfully contested the manner of proving the will . Their appeal was dismissed in DATE , and ORG refused leave to appeal on DATE . They continued to petition various other bodies in vain , accusing various judges and officials of offences in office when dealing with the matter : for instance , in an attempt to acquire real property for himself the local chief of police ( VJ ) had changed the wording of the will before having it registered ; when registering the will CARDINAL judge had unlawfully accepted the amendment to it ; when the will had been proven another judge had unlawfully accepted that the chief of police could represent the surviving testator , although the latter had been legally incapacitated and should have been represented by a guardian ad litem ; CARDINAL and a fourth judge had unlawfully rejected ORG \u2019s , ORG and ORG actions of DATE and DATE for contesting the will and the manner in which it had been proven ; and a subordinate of the chief of police ( EH ) eventually appointed guardian ad litem had unlawfully failed to safeguard his ward \u2019s interests .","CARDINAL officials lodged a criminal complaint against ORG , PERSON and PERSON . The public prosecutor brought charges in DATE , accusing them of continued public defamation and false denunciation starting in DATE . ORG ( raastuvanoikeus , r\u00e5dstuvur\u00e4tten ) held hearings on DATE , CARDINAL DATE and CARDINAL and DATE in this case and in CARDINAL other cases , all having been joined . In the second case ORG charged ORG with various counts of defamation ; in the third case ORG charged PERSON and EH with slander etc . ; in the fourth case ORG charged PERSON with false denunciation ; in the fifth case ORG , JK and PERSON charged PERSON and GPE with fraud etc . ; and in the sixth case ORG charged ORG , JK and GPE with false denunciation . On DATE ORG , NORP and PERSON were convicted , sentenced to conditional imprisonment and ordered to pay damages and costs . Their convictions comprised CARDINAL , CARDINAL and DATE individualised counts , respectively , whereas their own charges were all rejected . ORG found , inter alia , that the defendants must have known that the complainants had not committed the crimes imputed to them in a wide public context during a period of DATE . The accusations had been particularly insulting towards DATE , even though it had been established in a number of decisions that the complainants had not committed unlawful acts or abused their respective positions . The accusations had been capable of subjecting the complainants to contempt or of impeding their careers . ORG refused ORG \u2019s , ORG and ORG request for a hearing or a remittal of the case . By judgment of CARDINAL DATE ORG acquitted them on certain counts but increased their respective sentences to CARDINAL months\u2019 , QUANTITY months\u2019 and QUANTITY months\u2019 conditional imprisonment . They were further ordered to pay an accessory fine in the respective amounts of ORG CARDINAL,CARDINAL , ORG CARDINAL,CARDINAL and FAC . In DATE JK died . On DATE ORG ( justices P , T and others ) refused leave to appeal .","In DATE the Prosecuting Counsel of ORG brought criminal proceedings against ORG , PERSON and PERSON for continued false denunciation of a former judge involved in the civil proceedings regarding the will . At an oral hearing on DATE before ORG as the first instance , the Prosecuting Counsel amended the indictment . The defendants contested the charges and later requested a re - hearing . On DATE ORG convicted all CARDINAL defendants of continued public defamation committed in DATE and sentenced them to a fine in the respective amounts of FIM CARDINAL , ORG CARDINAL,CARDINAL and FIM CARDINAL,CARDINAL . They were also ordered to pay compensation for moral damage . ORG found that the public accusations against the former judge had been capable of impeding his career as a member of the Bar . On DATE ORG ( justices P , T and others ) struck out the charges against the deceased JK , quashed ORG \u2019s and ORG convictions in part and reduced their fines to ORG and FIM CARDINAL,CARDINAL .","Meanwhile , in DATE ORG , NORP and PERSON had brought a further civil action before ORG , contesting the will and the manner in which it had been registered . This action was also unsuccessful . The appeal of ORG , GPE and GPE \u2019s successors was dismissed in DATE . They were refused leave to appeal to ORG on DATE .","On DATE ORG also refused ORG \u2019s , ORG and ORG further procedural complaint and annulment requests relating to the first set of criminal proceedings and some of the civil proceedings . In his memorandum the r\u00e9f\u00e9rendaire stated that in order to avoid bias the complaint and requests could not be presented to the panel of ORG which was dealing with the CARDINAL criminal cases against ORG , PERSON and PERSON ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97561","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF TOLSTOBROV v. RUSSIA","importance":4,"conclusion":"No violation of Art. 6;No violation of P1-1","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in GPE .","The applicant sued a private company for salary arrears .","By judgment of DATE , ORG in ORG awarded the applicant MONEY ( RUB ) against the defendant company .","The defendant company appealed .","On DATE , both parties being present in the court - room , ORG adjourned the hearing until DATE , which was noted in the minutes . The parties were also notified about the hearing of CARDINAL DATE by post , in accordance with the domestic law . However , the court made a mistake in the defendant company 's address , which never received the summons .","On DATE the ORG of Arkhangelsk , in the absence of the defendant company 's representative , upheld the judgment on appeal .","The defendant company applied for supervisory review of the above judgments . On DATE a judge in ORG granted it leave for supervisory review . On DATE the Presidium of ORG set aside the judgment of DATE and ordered a re - examination of the case by ORG on the grounds that the defendant company had not been informed about the hearing of DATE . The ORG found that though the defendant company 's representative was present in the court - room when the district court adjourned the hearing to DATE , the defendant company could not be considered as duly informed about it .","On DATE ORG quashed the judgment of DATE and awarded the applicant RUB CARDINAL .","NORP The relevant domestic law governing the supervisory review procedure at the material time is summed up in the ORG 's judgment in the case of GPE v. GPE ( no . CARDINAL , \u00a7 CARDINAL , DATE ) .","Under LAW , in force at the material time , parties to the proceedings are to be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt , by court summons with an acknowledgment of receipt , by telegram , by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58157","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF RICHARD v. FRANCE","importance":3,"conclusion":"Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"R. Pekkanen","text":["Mr PERSON , a NORP national born in DATE , is a postmaster . He is a haemophiliac and has received numerous blood transfusions .","A test carried out in DATE showed that the applicant had been infected with the human immunodeficiency virus ( HIV ) . Since DATE he has been classified as having reached stage II of the CARDINAL stages on the scale of ORG .","On DATE the applicant submitted a preliminary application for compensation to the Minister for ORG , ORG . He sought MONEY ( FRF ) in compensation for the medical disorders of all kinds he had suffered on account of his infection with HIV . His application was rejected on DATE .","On DATE Mr PERSON filed an application in ORG for FRF CARDINAL,CARDINAL,CARDINAL in compensation for the damage sustained as a result of the ORG \u2019s failure to take appropriate measures to prevent his becoming infected with HIV .","On DATE the applicant made an urgent application to the President of ORG for an expert report . This application was granted on DATE . The expert report was filed on DATE .","On DATE the case was referred to the ORG d\u2019Etat , which then designated ORG to deal with it . The application was registered with that court on DATE .","On DATE the Minister of Health lodged his defence pleadings .","After holding a hearing on DATE , ORG ruled in a judgment of CARDINAL DATE that the ORG was liable for the applicant \u2019s infection and ordered it to pay him compensation of ORG CARDINAL .","On DATE the Minister for ORG appealed against the above judgment to ORG . On DATE he lodged supplementary pleadings .","On DATE the applicant lodged pleadings in which he requested the court to dismiss the appeal and made a cross - appeal for the ORG to be ordered to pay him compensation of ORG CARDINAL .","On DATE and DATE pleadings were lodged by the Minister of Health and the applicant respectively .","On DATE ORG and Haemophiliacs infected with HIV informed ORG that PERSON PERSON had accepted the ORG \u2019s offer of compensation ( see paragraphs CARDINAL\u2013CARDINAL below ) .","On DATE , ORG of the ORG d\u2019Etat gave CARDINAL landmark judgments , fixing CARDINAL DATE as the start of the period of the ORG \u2019s liability and awarding the victims compensation at a flat rate of ORG CARDINAL,CARDINAL,CARDINAL ( see paragraph CARDINAL below ) .","On DATE and DATE and CARDINAL DATE ORG filed an application and CARDINAL memorials seeking an order requiring the ORG to refund it all payments made or to be made to PERSON PERSON on account of his infection with HIV . It also claimed interest at the statutory rate .","After holding a hearing on DATE , ORG ruled on DATE that , in accordance with the above - mentioned case - law of the ORG d\u2019Etat ( see paragraph CARDINAL above ) , the ORG should be held liable for the applicant \u2019s infection . It assessed the amount of compensation due to the applicant at ORG CARDINAL,CARDINAL,CARDINAL . It deducted the offer of FRF CARDINAL,CARDINAL,CARDINAL made by ORG and Haemophiliacs ( see paragraph CARDINAL below ) , which included the FRF CARDINAL awarded by ORG and ORG CARDINAL allocated by ORG . It thus increased the compensation payable by the ORG from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL . The court calculated the interest on the outstanding balance , that is ORG CARDINAL,CARDINAL , from DATE .","On DATE Mr PERSON appealed on points of law to the PERSON d\u2019Etat , complaining about the method of calculation used by ORG .","On CARDINAL DATE Mr PERSON lodged an application ( no . CARDINAL ) with ORG . On DATE , having declared the application admissible , the Commission adopted a report pursuant to LAW noting that the parties had reached agreement on a friendly settlement ( see paragraph CARDINAL below ) .","On DATE ORG declared the applicant \u2019s appeal admissible . He was then informed that his appeal had been referred to the President of ORG of the ORG d\u2019Etat who would examine it .","The Compensation Fund for Transfusion Patients and GPE and the Minister of Health filed their observations on DATE and DATE respectively .","In the meantime , on DATE , Mr PERSON had written to the President of ORG of the ORG d\u2019Etat , which was dealing with the case , drawing his attention to the length and protractedness of the proceedings and the urgency of the case given his state of health . He received no reply .","On DATE the applicant lodged a further application ( no . CARDINAL ) with the Commission , which was registered on DATE , complaining that the proceedings were still pending before the ORG d\u2019Etat .","On DATE the ORG d\u2019Etat gave judgment quashing ORG judgment of DATE on the ground that , contrary to the ORG d\u2019Etat \u2019s relevant case - law ( see paragraph CARDINAL below ) , it had deducted from the amounts the ORG was required to pay PERSON PERSON the offer of compensation in the event of Aids being diagnosed made by ORG and GPE . The ORG d\u2019Etat remitted the case to ORG without applying section CARDINAL of Law no . CARDINAL - CARDINAL of DATE , which would have allowed it to determine the merits of the case without remitting it to ORG .","The case was remitted on DATE .","In a letter of DATE the senior registrar at ORG informed the applicant that his case had been remitted to that court by the ORG d\u2019Etat and invited him to submit his observations . The applicant \u2019s observations were registered at the court registry on DATE .","In separate proceedings the applicant had submitted a claim to ORG and Haemophiliacs , set up by LAW of DATE ( see paragraph CARDINAL below ) .","In a decision of CARDINAL DATE the ORG awarded him compensation of ORG CARDINAL,CARDINAL,CARDINAL , of which ORG CARDINAL,CARDINAL,CARDINAL was payable in CARDINAL equal DATE instalments and ORG CARDINAL if and when Aids was diagnosed . The ORG deducted from this offer the FRF CARDINAL paid out by ORG and the FRF CARDINAL,CARDINAL awarded by ORG .","On DATE ORG paid Mr PERSON CARDINAL , which was the first DATE instalment .","After several judgments of CARDINAL DATE in which ORG had ruled that compensation payments should not be made in instalments , the applicant received , on DATE , the balance of the first part of the compensation , that is ORG CARDINAL .","The Act of DATE making miscellaneous social - welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products . Section CARDINAL provides :","\u201c I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the NORP Republic shall be compensated in the manner set out below .","II . ...","III . Full compensation for the damage defined in subsection I shall be provided by ORG , having legal personality , presided over by a serving or retired divisional president or judge of ORG and administered by a compensation board .","...","IV . In their claims for compensation , victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives .","...","Victims or their heirs shall communicate to the ORG all the information in their possession .","Within DATE of the receipt of a claim , a period which may be extended at the request of the victim or his heirs , the ORG shall consider whether the conditions for payment of compensation have been fulfilled . It shall investigate the circumstances under which the victim was infected and make any necessary inquiries , which may not be resisted on grounds of professional secrecy .","...","V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time - limit laid down by decree , which may not exceed DATE from DATE on which the ORG receives full proof of the damage ...","...","PERSON . NORP The victim shall inform the Fund of any judicial proceedings pending . If legal proceedings are brought , the victim shall inform the court of his application to the Fund .","VII . ...","ORG . The victim shall not be entitled to take legal action against ORG unless his claim for compensation has been dismissed , no offer has been made to him within the time - limit referred to in the first paragraph of subsection V , or he has not accepted an offer made to him . Proceedings shall be brought in ORG .","ORG . The Fund shall be subrogated , for an amount no higher than the sums paid out , to the victim \u2019s rights against the person liable for the damage and against persons required , for whatever reason , to make full or partial reparation for that damage , within the limits of those ORG liabilities . However , the ORG may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence .","The ORG may intervene in proceedings in the criminal courts , even if it does not do so until the appeal stage , where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .","If the acts which caused the damage have given rise to criminal proceedings , the civil court shall not be required to defer its decision until there has been a final decision by the criminal court .","X. Unless otherwise provided , the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the ORG d\u2019Etat .","ORG . NORP ...","ORG . The Compensation Fund \u2019s sources of revenue shall be specified in a subsequent Act .","XIII . ...","ORG . ... \u201d","In CARDINAL judgments of DATE ORG of the ORG d\u2019Etat decided that \u201c the ORG was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non - heat - treated blood products DATE and DATE \u201d .","In a series of landmark judgments of CARDINAL DATE the ORG d\u2019Etat ruled that payment of the sum offered by ORG and Haemophiliacs in the event of Aids being diagnosed was \u201c a latent possibility subject to the onset of the disease \u201d and that accordingly ORG had \u201c made an error of law in deducting it from the sums it ordered the ORG to pay in compensation for the same damage \u201d ( see paragraph CARDINAL above ) .","At the material time ORG contained , inter alia , the following provisions :","\u201c Except in cases concerning public works , proceedings may not be instituted in ORG otherwise than in the form of an appeal against a decision ; such an appeal shall be lodged within DATE of the notification or the publication of the contested decision .","Where no reply is forthcoming from the relevant authority for DATE , that silence is to be construed as a decision rejecting the complaint .","... \u201d","\u201c The President of ORG or of ORG , or a judge delegated by CARDINAL of them , may , where the existence of an obligation can not seriously be contested , award an advance to a creditor who has filed an application on the merits in the court in question . He may , even of his own motion , make the payment of the advance subject to the lodging of a security . \u201d","\u201c Immediately after the application instituting the proceedings has been registered by the registry , the president of the court or , in GPE , the president of the division to which the application has been transmitted , shall appoint a rapporteur .","\u201c Where CARDINAL of the parties or the administrative department has been asked to submit observations and has not complied with the time - limit laid down pursuant to Articles R.CARDINAL and ORG of this LAW , the president of the court or division shall issue a formal notice to comply .","In the event of force majeure , a final extension of time may be granted .","If the formal notice to comply has no effect or if the final time - limit given is not complied with , the court shall give judgment . \u201d","\u201c Where a final notice to comply relates to an administrative department of the ORG , it shall be sent to the authority with competence to represent the ORG ; in other cases it shall be sent to the party or his representative if he has appointed one . \u201d","\u201c A member of ORG or ORG may be assigned by the competent court or by the latter \u2019s president to carry out any investigative measures other than those provided for in DATE of this chapter . \u201d","Decree no . CARDINAL - CARDINAL of DATE applies to all proceedings pending at the date of its publication . It lays down provisions for the implementation of section QUANTITY of the Act of DATE ( see paragraph CARDINAL above ) :","\u201c Part II","Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section CARDINAL of the aforementioned LAW DATE","In order to bring the action by subrogation provided for in subsection ORG of section CARDINAL of the aforementioned Act of DATE , the ORG may intervene in proceedings in any of the administrative or ordinary courts , even if it does not do so until the appeal stage . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .","The registries of the administrative and ordinary courts shall send the ORG by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section CARDINAL of the aforementioned LAW DATE .","Within DATE of receipt of the letter referred to in LAW , the ORG shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and , if so , what stage the procedure has reached . It shall also state whether or not it intends to intervene in the proceedings .","Where the victim has accepted an offer made by ORG , the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted . The Fund shall , where relevant , indicate the stage reached in proceedings instituted in ORG under the provisions of Part I of this decree and forward any judgment delivered by that court .","The registry shall notify the parties of the information communicated by the ORG .","The registry shall send the ORG copies of the decisions given at first instance and , where relevant , on appeal in proceedings in which the ORG has not intervened .","...","The provisions of ORG CARDINAL to CARDINAL shall be applicable to cases pending on the date of entry into force of [ this ] decree ... \u201d","On CARDINAL DATE Mr PERSON lodged an application with the Commission , registered on CARDINAL DATE under file no . CARDINAL , in which he complained of the length of the compensation proceedings and relied on Article CARDINAL \u00a7 CARDINAL of the Convention . On DATE the Commission adopted a report in which it noted , pursuant to LAW :","\u201c \u2026","On DATE the applicant \u2019s representative informed the ORG that the applicant was prepared to accept the sum of CARDINAL ( CARDINAL ) NORP francs ( ORG ) for non - pecuniary damage , to which were to be added ORG CARDINAL for the costs and expenses he had incurred before the Commission , the whole to be paid within DATE of the adoption of the ORG \u2019s report . He also requested the payment of interest in the event of delayed settlement . He repeated these proposals in a letter of DATE .","In a letter of DATE , received on DATE , the Agent of the Government informed the ORG that the Government were prepared to agree to a settlement based on these proposals .","On DATE the Commission noted that the parties had reached agreement on the terms of a settlement . It also stated the opinion , having regard to LAW b ) of the LAW , that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the LAW .","\u2026 \u201d","The text of the applicant \u2019s declaration that he accepted the friendly settlement , which bears his signature , reads as follows :","\u201c I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the ORG fees and other costs I have incurred in this case .","I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against ORG in the NORP and international courts . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77674","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF Y\u00dcKSEKTEPE v. TURKEY","importance":4,"conclusion":"Remainder inadmissible;Violation of Art. 6-1 (composition of the State security court);Not necessary to examine Art. 6-1 (other complaints);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient","judges":"","text":["The applicant was born in DATE and lives in GPE .","The applicant was a civil engineer and a partner in a company . He was also acting as an automobile commissioner in his spare time .","In the course of an operation carried out against the activities of an illegal organisation , namely the PERSON ( ORG ) , the applicant was arrested and taken into custody together with Mr PERSON while they were leaving the applicant \u2019s house on DATE . It appears from the arrest protocol that the police officers were following PERSON PERSON who was suspected of being a member of that organisation .","On DATE , the applicant \u2019s house was searched . According to the search and seizure protocol drafted by the police officers and signed by the applicant and his wife , the police did not find anything illegal or incriminating .","DATE and DATE , the applicant was interrogated and confronted with a number of suspects . The applicant claims that he was beaten and given electric shocks during this time .","On DATE the applicant was examined by a doctor at ORG who did not find any signs of illtreatment on the applicant \u2019s body . The report mentioned that the applicant complained of a bruise on his left eye and of having been given electric shocks .","On DATE , the applicant was brought before the prosecutor when he denied the accusations against him and claimed to have given his statements in custody under duress . He was then brought before a judge at ORG who ordered his detention on remand .","On DATE the public prosecutor at ORG filed a bill of indictment against the applicant , along with CARDINAL other suspects , accusing him of providing ORG with financial support by forging licences and plates for stolen cars and , subsequently , selling them . The prosecutor requested that the applicant be convicted and sentenced for membership of an illegal organisation under LAW .","On an unspecified date the criminal proceedings against the applicant and CARDINAL other accused commenced before ORG .","During the proceedings the applicant refuted the accusations against him . In particular , he challenged the authenticity of the documents in the case file claiming that some of them had been replaced . In support of his argument , he claimed , inter alia , that the search and seizure protocol was torn and that therefore the police had drafted a new one and made him sign under his wife \u2019s name . In his final observations on the merits , the applicant also stated that he had been forced to sign his statements in police custody .","On DATE the applicant was released pending trial .","On DATE ORG convicted the applicant of aiding and abetting an illegal organisation , under LAW , and sentenced him to MONEY imprisonment . In its decision , the court noted , inter alia , that there was no evidence that the applicant had taken part in any armed or unarmed activity of the organisation in order to be considered a member of that organisation . However , the court was not convinced that the applicant did not know that , through his constant financial relationship with Mr PERSON , he had been helping the organisation .","On DATE the applicant appealed against this judgment . In his appellate petition , the applicant submitted , in particular , that the police documents relied upon by the prosecution did not reflect the truth . In this regard , he stated that the documents drafted by the police in Bursa were torn and replaced by the police in GPE . The applicant further claimed that he was coerced into signing the documents drafted by the police . Finally he pointed out that the police had not found a single book concerning political PERSON in his house .","On DATE ORG upheld the judgment of the first - instance court in so far as it concerned the applicant and quashed the remainder of the judgment .","The Government informed the ORG that on DATE ORG decided to defer the sentence of the applicant pursuant to LAW on ORG , Deferral of Procedure and Punishments .","The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) .","By PERSON no . CARDINAL of DATE , published in the Official journal on DATE , ORG have been abolished ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83951","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v. TURKEY","importance":1,"conclusion":"Preliminary objections dismissed (locus standi - six-month period);Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre","text":["The facts of the case , as submitted by the parties , may be summarised as follows .","By a charter of CARDINAL DATE , the applicant company chartered a NORP - owned vessel called the Cape Maleas ( \u201c the vessel \u201d ) . The charter party was on an amended ORG time - charter form , and was for a time - charter voyage to the south NORP ports . The duration of the voyage was stated to be DATE and the purpose to carry general cargo , steels and commercial containers .","By agreement between the parties , namely the applicant company and the owner of the vessel , ORG , on DATE the charter party became subject to \u201c Addendum No . CARDINAL \u201d . This provided that the applicant charterer could load QUANTITY of \u201c FAC cargo . \u201c FAC denotes cargo which falls within the \u201c Class DATE Explosives \u201d category of the International Maritime Dangerous Goods Code .","The applicant company ordered the vessel to proceed to the port of GPE in GPE and , on DATE , further cargo commenced loading . This consisted of general cargo but also arms , ammunition and military spare parts which fell within the \u201c IMCO Class CARDINAL \u201d category ( \u201c the arms cargo \u201d ) .","The applicant company \u2019s agent in GPE drew up bills of lading in respect of the cargo , including the arms cargo ( \u201c the bills of lading \u201d ) . These bills of lading described the arms cargo as \u201c special equipment \u201d , followed by a reference to a numbered contract . The port of discharge for the \u201c special equipment \u201d was specified as Tartus in GPE . The shipper was stated to be \u201c NORP \u201d and the consignee as \u201c to order \u201d .","The applicant company \u2019s agent in GPE also prepared a manifest of cargo . Like the bills of lading , this described the arms cargo as \u201c special equipment \u201d , and gave the port of discharge as Tartus . The applicant company at all times intended that the arms cargo should be discharged at the port of PERSON in GPE . The vessel sailed from GPE at TIME on DATE and was ordered to proceed to GPE in GPE in order to load further cargo . In order to reach GPE from GPE , the vessel had to transit through the LOC .","On DATE , at TIME , the vessel was about to commence transit through the LOC . Before entering the LOC the master of the vessel requested the assistance of a pilot for navigation through the LOC . The vessel was flying the international signal flag to indicate that it carried dangerous cargo .","As a result of information received by the NORP customs authorities from a NORP vessel which had recently arrived from GPE , the NORP authorities believed that the arms cargo on board the vessel was bound for GPE , from where it would be smuggled into GPE .","According to the NORP authorities , the vessel was first sighted when it was QUANTITY outside the LOC . After the vessel had entered the LOC , a pilot went on board and invited the master to declare any hazardous materials which were on board . The master duly did so , and the vessel proceeded for TIME through the LOC before the pilot instructed the master to stop the engines .","The NORP coastguard and other NORP authorities boarded and seized the vessel . Since the waters were rough at the point where the vessel was stopped , it was towed by a military boat to the NORP port of B\u00fcy\u00fckdere . All parties to the case subsequently proceeded on the basis that the seizure of the vessel had taken place in the LOC , governed by LAW of DATE .","At B\u00fcy\u00fckdere the vessel was searched and the bills of lading and manifest of cargo examined . The NORP authorities discovered the arms cargo and questioned the master of the vessel . The statement entitled \u201c LAW of Facts \u201d , in which the NORP authorities summarised their allegations and the actions which they had taken in respect of the vessel , was prepared and signed by all the officials who were present at the seizure and search of the vessel . The master , the first officer and the radio operator of the vessel were taken into custody by the NORP authorities .","On DATE statements were taken from the master and first officer in the form of affidavits . These formed part of the file which was submitted by the public prosecutor to a single judge of ORG .","On DATE , having examined the file and citing , inter alia , Articles CARDINAL and CARDINAL of LAW , a single judge of ORG approved the arrest of the vessel and the detention of its crew , namely the master , the first officer and the radio operator . The judge referred in his decision to \u201c systematic weapon smuggling \u201d and stated that the \u201c evidence confirmed that the above - mentioned smuggled weapons could be used against the security of GPE \u201d .","On DATE that decision was served on the lawyer instructed on behalf of the vessel and the master . The following day , the lawyer filed an objection against the decision , setting out the relevant provisions of LAW and noting that GPE was not in a state of war with any country within the meaning of the provisions of its LAW and that there was neither a threat nor a risk of war .","On DATE ORG dismissed that objection .","On DATE ORG at ORG indicted the master , the first officer and the radio officer of the vessel , charging them with organised transportation of firearms and ammunition . In the public prosecutor \u2019s view , GPE was at war with GPE . He cited various decrees of the NORP parliament which had authorised the sending of troops to GPE , and stated that :","\u201c ... notwithstanding the ceasefire achieved through the efforts of ORG putting an end to the armed conflict , no treaty having yet been signed , the state of war is ongoing from a legal point of view . Consequently , it has become necessary to enforce LAW . ...","Pursuant to [ LAW ] , the commercial vessels of countries at war with GPE do not enjoy free passage through the LOC . Therefore , there being no right of unrestricted passage through the LOC of a ship flying the NORP flag and laden with weapons , ORG may exercise , for its own security and based on its sovereign rights and LAW , control over that ship and the weapons contained therein . \u201d","NORP Since the vessel was registered as a NORP ship and flew the NORP flag , the NORP authorities concluded that they had been entitled under LAW to seize the vessel and to launch proceedings for arms smuggling .","During DATE and DATE the government of GPE sought the release of the vessel and its cargo through high - level diplomatic meetings . The issue was raised at presidential level and , on CARDINAL DATE , the NORP ambassador to GPE visited the Deputy Minister for ORG to deliver copies of CARDINAL of the bills of lading and of LAW . This was intended to establish that the arms cargo was in fact being carried on behalf of ORG .","On DATE the NORP Minister for ORG wrote to ORG , giving an account of the meetings which had taken place , enclosing copies of the bill of lading and LAW and offering to obtain further information on the \u201c special equipment \u201d listed on the bill of lading .","On CARDINAL DATE the lawyer acting on behalf of the owners and the master of the vessel pointed out to ORG that the assumption that GPE and GPE were at war with each other was the \u201c crucial point \u201d of the case . He requested ORG to enquire immediately of ORG whether a state of war existed . He also submitted that the Presidency of the ORG should be asked whether there had been a declaration of war .","On DATE the lawyer filed another application with the court reiterating that GPE was not at war with any country ( GPE included ) and seeking the release of the master on bail .","On DATE the lawyer submitted a petition to ORG asking the court to rephrase the question which it had put to ORG . He objected to the question which had been put , namely \u201c whether the peace operations in GPE have ended with a treaty of peace ... \u201d , and submitted that the proper question to be asked was \u201c whether GPE is in a state of war or not with ORG .","In another communication , dated CARDINAL DATE , the applicant company \u2019s lawyer sent ORG translations of the charter party and the bills of lading . He explained that the nature of a time charter was similar to a lease , and that charterers had control over the cargo and its documentation .","ORG responded to the questions posed by ORG in CARDINAL letters of CARDINAL and CARDINAL DATE . The letters stated :","\u201c ... as there is no \u2018 state of war\u2019 between GPE and any other country , including ORG , it is obvious that the seizure of the ship can not be based on Articles CARDINAL and CARDINAL of LAW . In fact , ships carrying the flag of ORG have always traversed the LOC freely .","NORP In the Note sent to our Ministry by the NORP embassy in GPE , it was stated that the arms found on the ship belonged to GPE . This had been certified by the NORP authorities on several occasions .","On the other hand , the NORP authorities stated that the said arms had officially been sold to GPE by an agreement signed between GPE and GPE in DATE and that the arms had been loaded in GPE .","Except for the limitations set out in ORG CARDINAL and CARDINAL of LAW in \u2018 time of war\u2019 , commercial ships flying foreign flags enjoy full freedom of transit passage at times of peace , whatever their flag and cargo may be . As stated above , it is impossible to invoke the \u2018 time of war\u2019 provisions of LAW in this case because no state of war with ORG exists . Moreover , in accordance with customary international and treaty laws , ships have the \u2018 right of innocent PERSON through the territorial waters of other countries ... \u201d","On DATE ORG issued a decision for the release of the master on bail , but ordered the seizure and confiscation of the vessel and its cargo on suspicion of their being intended for use for the commission or preparation of a crime .","On DATE the public prosecutor filed his observations on the merits . He maintained his earlier position , relying upon LAW , contending that the vessel and the arms cargo should be seized and the master imprisoned .","By DATE the applicant company had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed . The applicant company applied through its NORP lawyer , PERSON , to intervene in the proceedings before ORG . In its application , the applicant company set out its interest in the case as the owner of the cargo and stressed that the arms cargo was being carried as part of a normal and legal commercial transaction and that GPE was not at war with any country . It therefore asked for the unconditional release of the vessel and its cargo . The court ordered that the applicant company be joined as an intervening party in the proceedings .","On DATE the then Prime Minister of GPE , PERSON PERSON , issued a certificate which stated :","\u201c GPE is not in a state of war with any country , LOC included ... \u201d","By a judgment of CARDINAL DATE , ORG acquitted the first officer and the radio operator , but convicted the master of the vessel of importing arms into GPE without official permission and sentenced him to DATE imprisonment and a fine of MONEY ( TRL ) . The court ordered that the arms cargo and the vessel be confiscated pursuant to the final paragraph of CARDINAL of PERSON no . DATE , that all the cargo other than the arms be returned to the applicant company and that the master bear the costs of the court hearing . With reference to a judgment of ORG in a similar case , ORG held that in the present case there was bad faith on the part of the applicant company since the bill of lading gave inaccurate information as to the contents of the cargo and the route of the vessel . It noted that there was no justification for not informing the NORP authorities of NORP weapons passing through the LOC . The court further considered the following in relation to LAW :","\u201c The second question is whether the NORP authorities were entitled to seize the munitions and weapons . Pursuant to the relevant LAW , the passage of ships carrying firearms and owned by any ORG with which GPE is in a state of war is forbidden .","The other important issue is whether GPE is in a state of war with ORG , or in other words , whether a peace agreement has been reached after the war . It is known that GPE has engaged in war with ORG , as a result of which GPE has been divided into CARDINAL sections , that GPE has been established , that ORG has not recognised GPE and until now no agreement has been reached , and that inter - State negotiations are in progress .","Therefore , the letter of ORG ... and the letter of the Prime Minister ... were disregarded . \u201d","The judgment went on to refer to the PERSON case , concerning another vessel , and concluded that \u201c the existence of a state of war has been confirmed \u201d .","Following the judgment of ORG , the applicant company paid the hire charge and expenses due to the owner and the charter party in the sum of CARDINAL,CARDINAL,CARDINAL.CARDINAL United States dollars ( ORG ) . Although the judgment of ORG had ordered the return of the non - arms cargo to the applicant company , it was not returned and , by an order of CARDINAL DATE , ORG granted an injunction to the owner of the vessel which imposed a lien of GPE MONEY over the cargo to secure the unpaid hire . The owner of the vessel , ORG , then commenced enforcement proceedings for encashment of the lien over the cargo which belonged to the applicant company .","On DATE the applicant company appealed against the judgment of ORG . The applicant company disputed the court \u2019s conclusion that a state of war existed between GPE and GPE . The ground of appeal also questioned the legitimacy of the court \u2019s reliance on the earlier GPE case , and pointed out that the arms cargo had only been in transit through the LOC .","By a decision of DATE , ORG quashed ORG judgment . It held that there was no material evidence in the file indicating that the arms would be discharged from the vessel in GPE . As regards the applicability of the provisions of LAW , ORG held :","\u201c ... that the state of war mentioned in LAW did not exist as also evidenced by the letters of ORG and the Prime Minister which explicitly state that \u2018 GPE is not at war with any country , including ORG ... and that there is no room for application of LAW of LAW . ... \u201d","The case was remitted to ORG for retrial .","In an application of CARDINAL DATE , pending the retrial of the master of the vessel before ORG , the applicant company sought removal of the lien which had been imposed by ORG over the cargo .","On DATE ORG refused the applicant company \u2019s request , so on DATE the applicant company agreed to pay the owner some of the hire charges , without prejudice as to liability . In return , the owner agreed to relinquish its lien on the non - arms cargo . Under that agreement the applicant company had to pay PERCENT of the hire charge in respect of the period from DATE to CARDINAL DATE inclusive ( GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL ) . The applicant company also agreed to pay PERCENT of future charges , as and when the payments fell due . The owner provided the applicant company with a guarantee to repay the sum of GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL . The applicant company considered that it was obliged to pay the hire charges due , otherwise ORG and the owner would not have released the vessel and its cargo .","On DATE ORG acquitted the master on retrial . An appeal by the public prosecutor against that judgment was dismissed by ORG in a decision of CARDINAL DATE , which was approved on CARDINAL DATE .","On DATE ORG ordered the release of the vessel and the arms cargo . The vessel left GPE on DATE and was returned to the owner by the applicant company under the terms of the charter party on DATE .","In a written application of DATE , the applicant company brought an action before ORG claiming TRL CARDINAL ( equivalent to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) plus interest against ORG and ORG , with reference to ORG and ORG . The applicant company based its claim on LAW and submitted that the seizure and detention of the vessel and its cargo had been unjustified . It argued in this connection that the arms and ammunition had belonged to GPE , that the vessel had been wrongfully impounded for DATE , TIME and , as a result , it had had to pay ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL to the owner , ORG CARDINAL,CARDINAL.CARDINAL in fuel charges and ORG ORG in harbour fees .","The application went on to distinguish this case from the PERSON case , and to explain the circumstances in which the applicant company had been forced to pay the hire charges and other expenses to the owner of the vessel .","On DATE a first expert report was submitted to ORG following its interlocutory order of CARDINAL DATE . The experts advised that the applicant company \u2019s claim should be declared inadmissible , principally on the basis that the applicant company had chosen voluntarily and without legal compulsion to pay the hire charges under the charter party .","The applicant company objected to the first report and ORG ordered the preparation of a second expert report on CARDINAL DATE .","On DATE the second expert report was submitted to the court with the conclusion that the applicant company \u2019s claim should be dismissed . This second panel of experts considered that the owner of the vessel , but not the applicant company , might in appropriate circumstances claim compensation from ORG . They expressed the opinion that the applicant company \u2019s claim might succeed in relation to dock and fuel expenses incurred , as well as supplementary losses LAW CARDINAL of LAW , but that the claim in respect of hire charges should fail .","On DATE the applicant company filed an objection against the second report and requested the court to rule on the case without obtaining a further report , or alternatively to order a third expert report .","By a decision of DATE , ORG dismissed the applicant company \u2019s claim for compensation , holding that the vessel was not a merchant vessel since it was carrying , in part , a cargo of arms . It considered that the security authorities had merely carried out their statutory duty to investigate serious allegations of arms smuggling . The court therefore ruled that there had been no breach of LAW or of NORP law , in particular LAW .","On DATE the applicant company appealed .","On DATE ORG dismissed the appeal and upheld the judgment of ORG . A request by the applicant company for rectification of that decision was rejected by a new decision of ORG of DATE , served on the applicant company on DATE .","The charter party provided , inter alia , that any dispute arising under it should be referred to arbitration in GPE . As a result of the seizure and subsequent detention of the vessel and its cargo by the respondent government , a dispute arose between the applicant company and the owner of the vessel concerning the hire charges and other expenses paid by the applicant company .","Following arbitration proceedings in GPE , on DATE the arbitration panel decided that the charter party had been frustrated by ORG decision of CARDINAL DATE . The applicant company therefore recovered from the owner of the vessel the hire charges and other expenses which had been paid in respect of the period after DATE , but was unable to recover CARDINAL which it had paid or which it thereupon had to pay to the owner in respect of the period between the seizure on CARDINAL DATE and CARDINAL DATE .","Meanwhile , the owner of the vessel , ORG , brought an action in ORG in GPE seeking a lien on the cargo for the hire charges . In a decision of CARDINAL DATE ORG accepted the owner \u2019s claim on the ground that it was owed freight charges .","The cargo receiver , ORG , also brought an action in the ORG claiming CARDINAL in damages from ORG on behalf of ORG and ORG . It submitted that it had lost revenue as a result of the detention of its merchandise carried on the vessel and that new commercial goods had been purchased in order to replace the seized merchandise .","In a judgment of DATE , ORG dismissed that claim on the grounds that the seizure of the vessel had been lawful since the arms cargo was not clearly indicated on the bill of lading . On appeal by the plaintiff , ORG quashed the judgment . Relying on the outcome of the criminal proceedings , ORG noted that the goods in question were not contraband or of a kind requiring them to be confiscated . It accordingly held that the defendant must be liable for the damage resulting from the wrongful confiscation of the goods .","In a judgment of DATE , the ORG confirmed its earlier judgment and held that the plaintiff \u2019s claim must be dismissed on the grounds that the seizure and detention of the vessel had been in compliance with domestic law and LAW governing the LOC . Taking into account the fact that the vessel had been sailing under the NORP flag , and the inconsistency between the cargo and the documents , the court considered that the seizure of the vessel had been lawful . The court further noted that ORG had acted with the aim of preventing activities designed to undermine it . The plaintiff again appealed against that judgment .","On DATE ORG sitting as a full civil court upheld the judgment of ORG and dismissed the action . It considered that while under LAW merchant ships were entitled to innocent passage , this did not outweigh GPE \u2019s sovereign rights . That being so , any arms trafficking would adversely affect GPE and would thus mean that the passage was no longer innocent . It further stated the following :","\u201c ... On the other hand , the bill of lading described the CARDINAL boxes opened as containing \u2018 Special Equipment\u2019 . LAW specifies in Articles DATE and CARDINAL the points to be included in the bill of lading . The cargo received or loaded onto the vessel for transportation must be described on the bill of lading in order for the acknowledgment of receipt and the delivery contract to be complete ... This description , which is an essential element of the bill of lading , must be such as to allow the cargo to be distinguished at all times from the other cargoes on the vessel and must be complete . The carrier is obliged to indicate on the bill of lading the amount , brand and external appearance as well as the characteristics of the cargo ... Clearly , as is apparent from the bills of lading in the case file , these indications , some of which are mandatory , were not included on the bill of lading and invited suspicion .","A country may purchase the arms it needs for its defence from another country , or may secure them by means such as aid or donations . In other words , arms trading between GPE is a normal and lawful procedure . Transportation of these arms is also normal and lawful . Arms purchased and transported must be indicated clearly as such on the bill of lading and other documents , in accordance with international rules . There should be no need to conceal them or make use of other channels . The file did not include a sales contract to the effect that the party sending these arms had purchased them lawfully , nor did it include any evidence to the effect that a letter of credit had been opened by banks . Given the manner in which the arms were loaded onto the vessel , it was essential from the point of view of GPE \u2019s security to inspect the vessel . In the matter of innocent passage , the coastal ORG has the right to impose sanctions on the vessel and cargo in accordance with the rule on the prevention of non - innocent passage which stems from customary law and LAW . LAW , customary law and the principle of ex aequo et bono do not prevent GPE from exercising this right . For these reasons , the trial court \u2019s decision to dismiss the action must be upheld on the grounds that it is in conformity with the law and with statutory procedure . \u201d","The former signatories to LAW ( DATE ) , together with GPE and GPE , met at GPE , GPE , in DATE and abolished ORG , returning the LOC zone to NORP military control . GPE was authorised to close the LOC to warships of all countries when it was at war or threatened by aggression . Merchant ships were to be allowed free passage during peacetime and , except for countries at war with GPE , during wartime . The convention was ratified by GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE , and DATE with reservations DATE by GPE . The preamble to the convention stated that the desire of the parties was \u201c to regulate transit and navigation in the LOC of the GPE , LOC and the LOC , comprised under the general term \u2018 Straits\u2019 , in such manner as to safeguard , within the framework of NORP security and of the security , in LOC , of the riparian GPE , the principle enshrined in LAW signed at GPE on DATE , DATE \u201d .","The relevant provisions of the convention read as follows :","\u201c The High Contracting Parties recognise and affirm the principle of freedom of transit and navigation by sea in the LOC .","The exercise of this freedom shall henceforth be regulated by the provisions of the present Convention . \u201d","\u201c In time of peace , merchant vessels shall enjoy complete freedom of transit and navigation in the LOC , by DATE and by TIME , under any flag and with any kind of cargo , without any formalities , except as provided in LAW below . No taxes or charges other than those authorised by ORG I to the present Convention shall be levied by the NORP authorities on these vessels when passing in transit without calling at a port in the LOC .","In order to facilitate the collection of these taxes or charges merchant vessels passing through the LOC shall communicate to the officials at the stations referred to in LAW their name , nationality , tonnage , destination and last port of call ( provenance ) .","... \u201d","\u201c All ships entering the LOC by LOC or by LOC shall stop at a sanitary station near the entrance to the LOC for the purposes of the sanitary control prescribed by NORP law within the framework of international sanitary regulations . This control , in the case of ships possessing a clean bill of health or presenting a declaration of health testifying that they do not fall within the scope of the provisions of the second paragraph of the present Article , shall be carried out by day and by TIME with all possible speed , and the vessels in question shall not be required to make any other stop during their passage through the LOC .","Vessels which have on board cases of plague , cholera , yellow fever exanthemic typhus or smallpox , or which have had such cases on board during DATE , and vessels which have left an infected port within CARDINAL times TIME shall stop at the sanitary stations indicated in the preceding paragraph in order to embark such sanitary guards as the NORP authorities may direct . No tax or charge shall be levied in respect of these sanitary guards and they shall be disembarked at a sanitary station on departure from the LOC . \u201d","\u201c In time of war , GPE not being belligerent , merchant vessels , under any flag or with any kind of cargo , shall enjoy freedom of transit and navigation in the LOC subject to the provisions of LAW and CARDINAL .","... \u201d","\u201c In time of war , GPE being belligerent , merchant vessels not belonging to a country at war with GPE shall enjoy freedom of transit and navigation in the LOC on condition that they do not in any way assist the enemy .","... \u201d","\u201c Should GPE consider herself to be threatened with imminent danger of war , the provisions of LAW shall nevertheless continue to be applied except that vessels must enter the LOC by day and their transit must be effected by the route which shall , in each case , be indicated by the NORP authorities .","... \u201d","\u201c The functions of ORG set up under LAW relating to the regime of the LOC of the DATE , are hereby transferred to ORG .","ORG undertake to collect statistics and to furnish information concerning the application of LAW , CARDINAL , DATE and DATE of the present Convention .","They will supervise the execution of all the provisions of the present Convention relating to the passage of vessels of war through the LOC .","As soon as they have been notified of the intended passage through the LOC of a foreign naval force ORG shall inform the representatives at ORG of the High Contracting Parties of the composition of that force , its tonnage , the date fixed for its entry into the LOC , and , if necessary , the probable date of its return .","ORG shall address to the Secretary - General of ORG and to the High Contracting Parties an annual report giving details regarding the movements of foreign vessels of war through the LOC and furnishing all information which may be of service to commerce and navigation , both by sea and by air , for which provision is made in the present Convention . \u201d","\u201c Nothing in the present Convention shall prejudice the rights and obligations of GPE , or of any of the other High Contracting Parties members of ORG , arising out of LAW . \u201d","The relevant provisions provide as follows :","\u201c Nothing in this Part affects :","( a ) any areas of internal waters within a strait , except where the establishment of a straight baseline in accordance with the method set forth in LAW has the effect of enclosing as internal waters areas which had not previously been considered as such ;","( b ) the legal status of the waters beyond the territorial seas of GPE bordering straits as exclusive economic zones or high seas ; or","( c ) NORP the legal regime in straits in which passage is regulated in whole or in part by long - standing international conventions in force specifically relating to such straits . \u201d","\u201c This section applies to straits which are used for international navigation between CARDINAL part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone . \u201d","\u201c CARDINAL . NORP In straits referred to in LAW , all ships and aircraft enjoy the right of transit passage , which shall not be impeded ; except that , if the strait is formed by an island of a State bordering the strait and its mainland , transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics .","Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between CARDINAL part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone . However , the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering , leaving or returning from a State bordering the strait , subject to the conditions of entry to that ORG .","Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention . \u201d","\u201c CARDINAL . Ships and aircraft , while exercising the right of transit passage , shall :","( a ) proceed without delay through or over the strait ;","( b ) refrain from any threat or use of force against the sovereignty , territorial integrity or political independence of GPE bordering the strait , or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations ;","( c ) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress ;","( d ) comply with other relevant provisions of this Part .","Ships in transit passage shall :","( a ) comply with generally accepted international regulations , procedures and practices for safety at sea , including LAW at Sea ;","( b ) comply with generally accepted international regulations , procedures and practices for the prevention , reduction and control of pollution from ships .","... \u201d","This provides as relevant :","\u201c Any person who causes damage to another in an unjust manner , be it intentionally or negligently , shall afford redress for that damage . \u201d","The civil courts are not bound by either the findings or the verdict of the criminal court ( LAW ) .","Section CARDINAL makes it an offence to smuggle , to attempt to smuggle or to assist in smuggling firearms or ammunition into the country .","Article CARDINAL of LAW which was in force at the relevant time prescribed the seizure and confiscation of objects which were used for the commission or preparation of a crime .","The relevant parts of LAW provide :","\u201c International agreements duly put into effect bear the force of law ... In the event of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter , the provisions of international agreements shall prevail . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22657","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2002,"docname":"CATIKKAS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr Mesut Be\u015fta\u015f , PERSON and Mr PERSON , lawyers practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On CARDINAL DATE the applicant was taken into police custody on account of an unnamed intelligence report according to which he was accused of aiding and abetting the ORG .","On DATE ORG requested from the local health clinic in ORG that the applicant be examined by a doctor .","On an unspecified date the applicant was seen by a doctor in ORG who noted in his medical report that there existed no bruises on the applicant \u2019s body resulting from the use of force . It is further noted in the medical report that the applicant complained of health problems that were only indicated with the initials \u201c ORG \u201d and \u201c PIS \u201d .","On CARDINAL DATE the applicant was interrogated by police officers . During the interrogation he was forced to sign a statement without knowing the contents of it .","In the meantime , on CARDINAL DATE PERSON , a former ORG activist , was interrogated by police officers . He alleged that the applicant had aided and abetted the members of the ORG DATE and that he had been together with the applicant \u2019s son PERSON in the \u201c mountain team \u201d of the ORG . PERSON added that the applicant \u2019s son had fled to GPE using the ORG \u2019s money . He concluded that the applicant \u2019s other son PERSON had died during an armed clash between the ORG and the security forces in DATE or in DATE .","On DATE the applicant was brought before the public prosecutor . He gave a statement with the help of a translator , as he was unable to speak LANGUAGE . The applicant rejected the allegations against him and stated that he had sent his son PERSON to GPE when he had become aware of his son \u2019s involvement in the ORG . He further stated that his son PERSON had died while he was working in GPE but not during an armed clash .","On DATE the applicant was brought before the \u0130dil Magistrate \u2019s Court . He gave a statement with the help of a translator . He reiterated that he had no involvement in the activities of the ORG . The judge ordered his detention on remand .","At a hearing held before ORG on DATE the applicant denied the allegations against him . The court rejected the applicant \u2019s request of release pending trial because of the serious nature of the alleged offences and the state of the evidence .","In a letter addressed to ORG and dated DATE PERSON stated that he had erroneously accused the applicant and that he regretted having done so .","On DATE ORG convicted the applicant of aiding and abetting members of the ORG . The court further sentenced him to DATE and QUANTITY months\u2019 imprisonment under LAW of ORG and LAW .","On DATE ORG quashed the decision of ORG on the grounds that the latter had not established whether or not the applicant \u2019s son PERSON had died in an armed clash and the applicant \u2019s other son PERSON had still been in GPE . Furthermore , ORG should have clarified whether or not the person accused of aiding and abetting the ORG in GPE \u2019s statement of CARDINAL DATE had been the applicant .","At a hearing held on DATE ORG decided to release the applicant pending trial .","On DATE ORG acquitted the applicant . The court found that there existed no evidence to convict the applicant . This decision became final on DATE because the parties did not lodge an appeal with ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4724","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1999,"docname":"BALBONTIN v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and living in GPE .","He is represented before the ORG by Ms. PERSON , a lawyer practising in GPE .","A.","On DATE a boy , J , was born to the applicant and PERSON , an NORP national . The child 's parents were not married and separated towards DATE . The applicant maintained regular contact with J but at no time had a parental responsibility order . J lived with and was cared for by ORG","On DATE the applicant issued an application for a parental responsibility order in ORG . He also requested a contact order , an order prohibiting ORG from taking J to GPE and an order that J be known by his correct name .","On DATE ORG took J to GPE .","On DATE the applicant applied to ORG for a direction that J be returned to the jurisdiction and that the matter be referred to ORG . On DATE ORG transferred the matter to ORG .","On DATE there was an ex parte hearing before ORG . The applicant requested the court to grant him parental responsibility . The court observed that his parental rights had not been breached when PERSON took the child to GPE because the applicant did not have parental responsibility . Even if the court were to grant the applicant parental responsibility at that stage , this would not make the removal of the child unlawful ex post facto .","The applicant also requested the court under LAW DATE to declare that J had been removed from the jurisdiction in breach of LAW of LAW on the Civil Aspects of International Child Abduction , because the applicant 's custody rights had not been respected . He submitted in this connection that the notion of \u201c custody \u201d should be interpreted broadly by reference to LAW . However , the court considered that the applicant did not have custody within the meaning of LAW . In particular , the court considered that the applicant did not have any formal rights of custody in LANGUAGE law and LAW had not been incorporated into domestic law .","Finally , the applicant sought a declaration in wardship . This would have enabled the applicant to seek an order that J be returned to GPE and GPE . However , the court declined to make such a declaration on the ground that J had always lived with PERSON and it was inappropriate at that stage to demand that PERSON should return with him to GPE and GPE so that the applicant could visit him . The applicant was treated differently from married fathers because he did not have parental responsibility . The applicant could issue proceedings in wardship or under LAW DATE , serve them on the mother and promptly request the appropriate orders . However , the court stressed that , in the circumstances , it would not make any ex parte orders .","The applicant sought leave to appeal . On DATE ORG refused his application . The applicant renewed his application before ORG .","On DATE ORG refused the applicant leave to appeal reasoning as follows : The purpose of LAW was to ensure the speedy return , without lengthy proceedings or inquiries , of children who had been wrongfully removed from the person having their care . However , J was not cared for by the applicant . The applicant simply had contact with him . The applicant 's case could be also distinguished from cases where wards of court had been removed from the jurisdiction . In CARDINAL such case the court had ordered the return to the jurisdiction of a child that had been made a ward of court on DATE following its removal . Finally , the mere fact that the applicant had instituted proceedings before the NORP courts had not resulted in those courts acquiring custody powers over J. This could have happened only if the courts had made an interim custody order . As a matter of fact , the precedent relied on by the applicant in this connection concerned a case where the child had been removed by a mother in favour of whom the courts had previously made an interim custody order in contested proceedings . As a result of all the above , ORG considered that the applicant 's case was not an appropriate one for an ex parte order . However , the applicant had the possibility of making further applications in the context of contested proceedings .","B. Relevant domestic law and practice","Section CARDINAL of the Children Act DATE provides the following :","\u201c ( CARDINAL ) Where a child 's father and mother were married to each other at the time of his birth , they shall each have parental responsibility for the child .","( CARDINAL ) Where a child 's father and mother were not married to each other at the time of his birth -","( a ) the mother shall have parental responsibility for the child ;","( b ) the father shall not have parental responsibility for the child , unless he acquires it in accordance with the provisions of this LAW . \u201d","It is within the inherent jurisdiction of ORG to make children wards of court ( wardship jurisdiction ) . Once a child has been made a ward of court , no important step in its life can be taken without the consent of the court .","Section CARDINAL of ORG DATE provides the following :","\u201c ORG or Court of Session may , on an application made for the purposes of LAW by any person appearing to the court to have an interest in the matter , make a declaration or declarator that the removal of any child from , or his retention outside , GPE was wrongful within the meaning of LAW . \u201d","","LAW on the Civil Aspects of International Child Abduction provides the following :","Article CARDINAL","\u201c The removal or the retention of a child is to be considered wrongful where","( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and","( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .","The rights of custody mentioned in sub - paragraph ( a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . \u201d","Article CARDINAL","\u201c The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ORG shall so far as practicable assist applicants to obtain such a decision or determination . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99391","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF K\u00d6KSAL AND DURDU v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants were born in DATE and DATE , respectively , and live in GPE and GPE .","On DATE the applicant was discharged from his civil service post following his previous criminal conviction by a martial law court . The conviction had been finalised by ORG decision of DATE .","On DATE the applicant brought an action before ORG to annul the discharge order .","On DATE ORG rejected the applicant 's request .","On DATE ORG upheld the judgment of ORG . The written opinions of the public prosecutor and of the judge rapporteur ( \u201c tetkik hakimi \u201d ) concerning his appeal request were not communicated to the applicant .","On DATE ORG dismissed the applicant 's request for rectification of its previous decision .","On DATE the applicant was discharged from his civil service post after a disciplinary decision . Criminal proceedings were also commenced against the applicant on the same grounds as those which had led to his discharge .","On DATE the applicant brought an action before ORG to annul the discharge order .","On DATE ORG acquitted the applicant of the offences with which he had been charged . On DATE ORG upheld the applicant 's acquittal .","NORP In the meantime , on DATE ORG refused the applicant 's request to annul the discharge order . Relying on LAW ( Law no . CARDINAL ) , the administrative court held that the applicant 's acquittal of the criminal charges did not absolve him from the disciplinary sanction .","On DATE ORG upheld the judgment of ORG . The written opinions of the public prosecutor and of the judge rapporteur concerning his appeal request were not communicated to the applicant .","On DATE ORG dismissed the applicant 's rectification request . The final decision was served on the applicant on DATE .","A description of the relevant domestic law can be found in the case of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67093","languageisocode":"ENG","respondent":"DEU;ITA","branch":"ADMISSIBILITY","date":2002,"docname":"CALABRO v. ITALY and GERMANY","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is an NORP national , born in DATE and currently detained in FAC . He was represented before the Court by PERSON , of ORG .","The facts of the case , as presented by the applicant , may be summarised as follows .","On DATE the applicant was arrested in flagrante delicto by the GPE police for importing a large quantity ( approximately QUANTITY ) of cocaine .","According to the police report , the drugs had been imported into GPE by an \u201c infiltrator \u201d called PERSON ( \u201c J\u00fcrgen \u201d ) as part of a joint operation by the NORP and NORP police . On DATE PERSON had stayed at FAC in GPE , which was under close police surveillance . On DATE he had telephoned X , a drug trafficker living in GPE ( GPE ) who was interested in buying drugs ; PERSON said that he had discussed the subject with the applicant . On DATE X had informed PERSON that the applicant was now in GPE . The applicant had subsequently attended ORG , contacted PERSON and asked him whether he had the \u201c merchandise \u201d ( roba , an expression often used in criminal circles to refer to hard drugs ) . On being told that he had , the applicant had gone up to ORG \u2019s room where he was shown a suitcase containing QUANTITY of cocaine . He had made a gesture of approval and had immediately been arrested . The scene was recorded with audiovisual devices . Subsequently , X had telephoned ORG and pressed for news of the applicant .","By an order of DATE the LOC investigating judge ruled that the applicant \u2019s arrest was lawful and ordered his detention pending trial .","On DATE the applicant was committed for trial by ORG on charges of international drug trafficking .","The trial began on DATE . Numerous witnesses , including officers from the NORP police and the NORP federal police ( Bundeskriminalamt \u2013 \u201c the BKA \u201d ) gave evidence . They provided details of the nature of the police operation that had led to the applicant \u2019s arrest and of the procedures used .","On DATE ORG , which considered it \u201c absolutely necessary \u201d to hear PERSON \u2019s version of the events , issued a request for evidence on commission in which it asked the NORP authorities to take evidence from PERSON in GPE . The request was transmitted to ORG in GPE . In a memorandum dated DATE the GPE district judge informed ORG that , according to information received from the BKA , it had not proved possible to find PERSON , despite numerous attempts . He had gone on holiday on DATE and had not been in touch since .","On DATE , in view of the fact that PERSON could not be located and that the defence had waived its right to have him examined , ORG withdrew its request of CARDINAL DATE for evidence on commission . At the applicant \u2019s request , it decided to place in the case file certain statements made by ORG in connected criminal proceedings pending in GPE .","In a judgment of CARDINAL DATE ORG convicted the applicant and sentenced him to fifteen years\u2019 imprisonment and a fine of MONEY ( ITL ) ( MONEY ( ORG ) ) .","It relied in its decision on the circumstances of the applicant \u2019s arrest ( which had been confirmed by an audiovisual recording ) , the transcripts of telephone conversations PERSON had had with X and other people implicated in drug trafficking , and statements by the NORP police and the BKA . That evidence showed that NORP drug traffickers had asked PERSON , who was well known in drug - trafficking circles , whether he knew anyone who would be interested in buying cocaine . CARDINAL NORP nationals , GPE , Y and the applicant , had contacted PERSON to express their interest , while X and the applicant had subsequently given him money .","ORG did not consider it necessary to examine whether , as an undercover agent , PERSON was liable to prosecution under NORP law . His statements had not been made in GPE , but in connection with the proceedings in GPE and , under the laws of that country , he was immune from prosecution . Furthermore , most of his statements concerned his links with the NORP police and were not relevant to the applicant \u2019s case . The only document that was of relevance was one in which J\u00fcrgen had described his dealings with X and the applicant in order to reach an agreement for the sale of the cocaine and to make arrangements for delivery . In view of the fact that the NORP authorities said that PERSON could not be found , his statements had henceforth to be regarded as \u201c unrepeatable \u201d ( irripetibili ) and , consequently , admissible in evidence on the merits of the charges against the applicant . His statements corroborated and confirmed other prosecution evidence against the applicant .","In sentencing the applicant , ORG noted in particular that he had previous convictions ( albeit for less serious offences ) and that other criminal proceedings were pending against him . It also noted that it was apparent from the nature of the offence that he was active in drug - trafficking circles .","Both the prosecution and the applicant appealed .","The applicant submitted , inter alia , that the operation mounted by the police for the simulated sale of drugs was illegal . He argued that while the relevant NORP legislation ( Articles CARDINAL and CARDINAL of Presidential Decree no . CARDINAL of DATE ) authorised operations for the simulated purchase and controlled delivery of drugs in exceptional cases , under no circumstances did it permit the fictitious sale of drugs . In his submission , PERSON and the other police officers who took part in the case should have been examined as co - defendants , not witnesses . The fact that they had not been examined in that capacity meant that their statements should have been excluded . Furthermore , as the true identity of PERSON had not been duly disclosed , admitting his statements in evidence infringed the fundamental principles of the NORP legal system .","Lastly , the applicant argued that he should have been acquitted under LAW of LAW ( see \u201c Relevant domestic law \u201d below ) , as , had it not been for the actions of J\u00fcrgen and other police officers , the alleged offence would not have been committed .","On DATE ORG , which considered it \u201c absolutely necessary \u201d for PERSON to give oral testimony , issued a request for evidence on commission in which it asked the NORP authorities to hear PERSON and to ensure that he was assisted by a lawyer .","ORG arranged for a hearing on DATE for evidence to be taken from J\u00fcrgen in accordance with the relevant provisions of NORP law . It indicated that the NORP judges , a representative from the public prosecutor \u2019s office and the applicant \u2019s lawyers were entitled to attend .","However , on DATE the BKA informed ORG that PERSON \u2019s whereabouts remained unknown . The hearing on DATE was cancelled . On DATE the applicant , finding the BKA uncooperative , applied for an order requiring PERSON to appear before the NORP judicial authorities .","The President of ORG granted his application on DATE , ordering PERSON to appear on DATE and inviting him to instruct a lawyer of his choice . The order was forwarded to the NORP authorities , who were requested to serve it on J\u00fcrgen in accordance with Articles CARDINAL et seq . of LAW . They were advised that PERSON could remain anonymous .","ORG did not attend the hearing on DATE .","By a judgment of DATE , which was lodged with the registry on CARDINAL DATE , ORG increased the applicant \u2019s sentence to DATE and QUANTITY months\u2019 imprisonment and a fine of ORG CARDINAL ( approximately EUR CARDINAL ) .","It noted , firstly , that it was possible under LAW for a witness \u2019s identity not to be disclosed in the record if the witness was in danger . In such cases , the papers certifying the witness \u2019s identity were retained by the public prosecutor \u2019s office . It further found that there could be no doubt as to ORG \u2019s identity , as the case file showed that , on being questioned on DATE by the GPE public prosecutor \u2019s office , he had produced a passport in the name of PERSON and stated that he had been working as a secret agent for the BKA and the NORP police for DATE . Lastly , several witnesses had said that he was the man responsible for the operation for importing cocaine into LOC .","ORG also said that , although it had made several attempts to obtain oral testimony from PERSON , this had proved impossible . Accordingly , by virtue of LAW of LAW ( \u201c the ORG \u201d ) , his statements to the NORP authorities could be placed in the court file and relied on by the court when deciding the case .","As to PERSON \u2019s status in the NORP proceedings , ORG observed that undercover agents were only entitled to immunity if their role in the criminal conduct concerned was \u201c indirect and peripheral \u201d , that is to say limited to surveillance and observing the actions of third parties . In the case before it , since PERSON had played an active role in bringing the cocaine from LOC to GPE and from there to GPE , he should have been treated as a co - defendant in the NORP proceedings . The fact that he had not been meant that his statements could only be relied on to the extent that they did not disclose matters for which he could be held criminally liable . The admissible part of his statements had shed light on the dynamics of the police operation that had led to the applicant \u2019s arrest .","As regards the applicant \u2019s objection under LAW , ORG noted that that provision precluded the imposition of a penalty on persons whose acts were wholly incapable of producing dangerous or harmful consequences . Moreover , the intervention of an undercover agent had no effect on a defendant \u2019s acts if the defendant already had an intention to commit the offence . ORG said that in the case before it the applicant had taken various preparatory steps : he had asked PERSON to transport QUANTITY of cocaine , paid him sums of money , remained in touch with him and attended the rendezvous for the delivery of the drugs .","The applicant appealed to ORG . He relied mainly on the same grounds of appeal , but also pointed out that PERSON \u2019s identity had not been established with certainty , and argued that his statements were therefore inadmissible ab initio .","In a judgment of DATE , the text of which was lodged with the registry on DATE , ORG held that ORG had dealt with all the issues logically and correctly and dismissed the applicant \u2019s appeal .","As regards the alleged violation of LAW , it noted that an agreement over the arrangements for the sale of the cocaine had already been made in GPE and that the applicant had decided to perform that agreement of his own free will .","LAW ORG sets out the cases in which records of evidence obtained in other criminal proceedings may be placed in the case file ( and therefore be used in evidence on the merits of the charges ) . Paragraph CARDINAL of that provision lays down , inter alia , that \u201c depositions which ... can not be repeated \u201d may in all cases be placed in the case file . Article CARDINAL \u00a7 CARDINAL of the provisions on execution of the ORG provides : \u201c depositions which can not be repeated obtained by a foreign police force may be placed in the court file , either with the parties\u2019 agreement or after the maker of the deposition has been heard ... \u201d","Article CARDINAL \u00a7 CARDINAL of the Criminal Code prohibits punishment being imposed for acts or omissions which , by their nature or owing to the absence of a subject matter , are incapable of producing dangerous or harmful consequences ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75612","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2006,"docname":"CASE OF TREBOVC v. SLOVENIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"David Th\u00f3r Bj\u00f6rgvinsson;John Hedigan","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .","On DATE the applicant instituted civil proceedings against ZT in ORG ( Okro\u017eno sodi\u0161\u010de v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .","DATE and DATE the applicant lodged CARDINAL preliminary written submissions and\/or adduced evidence .","DATE and DATE he made CARDINAL requests that a date be set for a hearing .","During the proceedings the court appointed a medical expert .","Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .","At the last hearing the parties settled the case and the court terminated the proceedings ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-118668","languageisocode":"ENG","respondent":"CHE","branch":"ADMISSIBILITY","date":2013,"docname":"GAROFOLO v. SWITZERLAND","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Helen Keller;Neboj\u0161a Vu\u010dini\u0107;Peer Lorenzen","text":["NORP The applicant , Mr Liborio Garofolo , is an NORP national , who was born in DATE and lives in ORG , GPE of GPE - Landschaft . He was represented before the ORG by PERSON , a lawyer practising in ORG .","ORG ( \u201c the Government \u201d ) were represented by their Deputy Agent , Mr A. Scheidegger , of ORG . ORG , who had been informed of their right to intervene under LAW , did not make use of this right .","The facts of the case , as submitted by the parties , may be summarised as follows .","NORP In DATE the Swiss ORG ( Eidgen\u00f6ssische Spielbankenkommission \u2013 \u201c ORG \u201d ) opened investigations against ORG ( the \u201c ORG \u201d ) , a stock corporation under NORP law , on suspicion of having illegally installed gaming machines in establishments other than licensed casinos . On the occasion of a search of the ORG \u2019s business LOC on DATE , ORG officials seized documents indicating that the gaming machines had been installed in agreement with the operators or tenants of such establishments who had shared the profits resulting from the machines\u2019 illegal operation with the ORG .","It followed from several of the documents seized during the search that CARDINAL illegal gaming machines delivered by the ORG had been operated in a club run by the applicant . For instance , according to CARDINAL letter agreements addressed to the applicant \u2019s club and dated DATE and DATE respectively it was stipulated that in each case a gaming machine of a type that was not authorised for use outside licensed casinos was to be installed by the ORG at the applicant \u2019s club . It was further agreed that the proceeds from the operation of the respective machines were to be equally split between the parties . The agreement dated DATE was accompanied by a delivery note ( PERSON ) of the same date stating the type and serial number of the machine supplied to the applicant \u2019s club . The seized documents further comprised CARDINAL bills dated DATE , DATE and DATE respectively , demonstrating that gaming machines installed at the applicant \u2019s club by the ORG had generated proceeds which had been divided equally between the ORG and the club \u2019s tenant . Each of the receipts carried the signature of PERSON who at the time had been an employee of the ORG as well as of a representative of the club \u2019s tenant or - as regards the receipt of DATE - the applicant \u2019s own signature . The authorities further seized a list dated CARDINAL DATE setting out commissions collected by PERSON on behalf of the ORG in connection with the operation of gaming machines installed by the ORG at the applicant \u2019s club . The list referred , inter alia , to machines of the type that had been the subject of the aforementioned agreements of CARDINAL DATE and DATE . In addition , the ORG officials seized several computer - generated reports depicting revenues of the ORG resulting from the operation of the said CARDINAL gaming machines .","On DATE an official of the ORG accompanied by a police officer carried out a control visit at the applicant \u2019s club , where they discovered an unlicensed gaming machine . The machine carried several stickers indicating that it was for sale . After having verified that the machine , even though switched off , was nevertheless fully operational , the ORG officer ordered that it be confiscated .","On DATE , the applicant was heard as a witness ( Auskunftsperson ) in the administrative criminal proceedings ( Verwaltungsstrafverfahren ) instituted by the ORG against the ORG and its management . While conceding that the ORG had installed gaming machines at his club \u2019s LOC in the past which had included machines of the type appearing on the documents seized at the ORG \u2019s premises , the applicant maintained that he had not been aware that the use of such machines outside licensed casinos was prohibited . A machine of the type in question had been operated at his club for DATE but had been disposed of in DATE . By contrast , the gaming machine confiscated by the authorities on DATE had not been installed by the ORG but had been bought by himself DATE back in GPE for private use . The applicant explained that since the machine was no longer functioning he had brought it to the club for the purpose of selling it . The applicant further contended that he did not have any recollection of having been in contact with PERSON in the past .","On an unspecified date , the ORG also commenced an investigation against the applicant without the latter \u2019s knowledge .","On DATE , PERSON was heard as a witness in the criminal administrative proceedings instituted against PERSON , one the ORG \u2019s management board members . PERSON specified that as an employee of the ORG at the time of the events at issue it had been his task to empty the cash registers of the gaming machines installed by the ORG at a given establishment and to divide the proceeds between the ORG and the respective tenant in accordance with the previously agreed ratio . PERSON testified in this context that he had also collected proceeds generated by gaming machines installed by the ORG at the club run by the applicant , whom he knew personally . He further confirmed that he had drawn up and signed the aforementioned statements on the division of the related proceeds dated CARDINAL DATE , DATE and DATE at the club \u2019s premises and in the presence of its tenant but did not have any recollection who had signed the receipts on the tenant \u2019s behalf . When presented with a photo of an illegal gaming machine of the type allegedly operated at the applicant \u2019s club , PERSON recalled having seen a similar machine at the club \u2019s premises . He pointed out that it followed from the information on the receipts dated DATE and DATE that proceeds had also been generated by such gaming machine . This clearly showed that the machine had been in use since otherwise its cash register would have been empty . PERSON further stated that he did not know who had drawn up the remainder of the seized reports on revenues generated by the CARDINAL allegedly illegal gaming machines . In PERSON \u2019s opinion it was unlikely that the applicant had been aware that the operation of these machines had been illegal .","On DATE the ORG established the final record ( Schlussprotokoll ) of its investigations conducted against the applicant which was served on the latter the following day . The record informed the applicant that he was accused of having illegally organised games of chance in violation of LAW lit . a of LAW pertaining to gambling and gambling houses ( GPE \u00fcber GPE und ORG \u2013 see Relevant domestic law below ) . According to the record , the information obtained in the course of the investigations , in particular the documents seized at the ORG \u2019s premises , had demonstrated that in the period from DATE until DATE the applicant had operated up to CARDINAL unlicensed gaming machines at his club and that the resulting proceeds had been equally split between him and the ORG . While the applicant when heard as a witness in the proceedings against the ORG had admitted that an illegal gaming machine supplied by the ORG had been operated at his club for DATE , he had denied that the machine seized at his club had been installed by the ORG or operated for commercial purposes . Having regard to the fact that this machine showed the same serial number as indicated on the delivery note dated DATE , the ORG did , however , conclude that it had been delivered by the ORG . It was further specified in the record that according to the documents seized , the profit realised by the applicant in the period at issue as a consequence of the illegal operation of the said machines amounted to a total of MONEY ( CHF MONEY ( ORG ) ) .","The final record further informed the applicant that , within a time - limit of DATE , he had the right to comment on the ORG \u2019s findings , to apply for the investigations to be complemented and to inspect the investigation files . It was further specified that since the applicant had so far only been heard as a witness in the proceedings against the ORG , he would have the right to request a further hearing in his capacity as accused in respect of the charges brought against him .","As the applicant did not submit any comments within the set time frame the ORG , by an order ( PERSON ) of CARDINAL November CARDINAL , found him guilty as charged and imposed a fine of MONEY ( ORG MONEY ) . It further ordered that the confiscated gaming machine be destroyed and sentenced the applicant to pay compensation to the ORG in the amount of CHF MONEY corresponding to the profits he had generated by the machines\u2019 illegal operation . He was further informed about his right to file an objection ( Einsprache ) against the order within a time - limit of DATE , providing reasons and setting out possible means of evidence in its support .","On DATE the applicant , now represented by counsel , objected to the order after having been granted access to the investigation files . He contended , in particular , that while he had been heard as a witness in the proceedings against the ORG , he had not been informed that investigations had also been commenced with respect to him . He had thus not been granted an opportunity to defend himself . He further contested having exploited illegal gaming machines at his club for commercial purposes . The confiscated machine had not been in use at the club . As regards any other gaming machines installed by the ORG these had been exclusively operated by and for the benefit of the latter .","By a penal order ( Strafverf\u00fcgung ) of DATE the ORG , endorsing its order of DATE , dismissed the applicant \u2019s objection . It pointed out that NORP administrative criminal law did not request a formal decision by the authorities on the opening of investigations against an individual but merely required that the initiation of such proceedings was apparent from the official files . In the instant case it followed from the final record of the investigations served on the applicant on DATE that investigations had been opened against him . In accordance with ORG CARDINAL and CARDINAL of LAW ( see Relevant domestic law below ) such final record could be drawn up even before the accused had been questioned . The record had further informed the applicant about his right to submit comments , to apply for further evidence to be taken and to be heard again by the ORG in his capacity as accused . The applicant had , however , not availed himself of these rights . The ORG further pointed out that the applicant \u2019s allegations that the ORG alone had been entitled to the profits resulting from the machines\u2019 operation and that the gaming machine seized at his club had never been used for commercial purposes were clearly refuted by the content of the documents seized and the veracity of which the ORG had no reason to doubt .","Following the applicant \u2019s appeal against the ORG \u2019s penal order , the case was referred at his request to the GPE - Landschaft Criminal Court ( ORG ) for judicial review in accordance with LAW ( see Relevant domestic law below ) .","In his written submissions to ORG the applicant reiterated his allegations that the proceedings before the ORG had disregarded basic rights of the defence on the grounds already set out in his objection of DATE ( see \u00a7 CARDINAL above ) . He complained that criminal proceedings had never been formally opened against him and he had not been informed in due course of the investigations instituted against him . Furthermore , he had never been heard in his capacity as accused in the course of the investigations but only as a witness in the proceedings against GPE He further invoked that due to his insufficient command of the NORP language he had not understood the content of the ORG \u2019s final protocol dated DATE . He finally maintained that the charges brought against him were time - barred .","The applicant requested that the originals of the seized documents be produced at trial , that the signatures of the club \u2019s representative on the receipts dated DATE , DATE and DATE as well as the delivery order of CARDINAL DATE be compared with his own handwriting and that the files in the proceedings against the ORG \u2019s management be included as evidence in his trial . He further requested that PERSON , PERSON and CARDINAL further employees of the ORG , namely ORG and GPE , who had allegedly supplied gaming machines to his club , be heard as witnesses . He argued that PERSON was a key witness in the proceedings since he was the author of several of the documents that had been used by the ORG as evidence against him and the accuracy of which he contested .","By a decision of CARDINAL DATE ORG granted the applicant \u2019s request to hear the aforementioned witnesses and to admit the investigation files against the ORG \u2019s motion on the ground that he had not established why the taking of the requested evidence was relevant for the court \u2019s finding of facts . On DATE ORG decided to abstain from summoning PERSON The witness had informed the ORG that he was currently residing in GPE and while he was ready to appear at trial against compensation of his travel expenses , he did in any event not know the applicant or have any recollection of events relating to the period at issue . Under the circumstances , the court concluded that his convocation would be disproportionate .","On DATE ORG heard , inter alia , the applicant , who was represented by counsel and assisted by an interpreter , the ORG official who had seized the illegal gaming machine at the applicant \u2019s club on DATE , PERSON , one of the managing directors of the ORG , as well as ORG , an employee of the ORG who had been involved in the delivery of gaming machines to the applicant \u2019s club . PERSON did not attend the hearing .","By a judgment of DATE , the vice - president of ORG ) found the applicant guilty as charged . While reducing the fine previously imposed by the ORG from CARDINAL ( EUR CARDINAL,CARDINAL ) ORG upheld the remainder of the sentence imposed by the ORG .","ORG , relying in particular on the contents of the documents seized at the ORG \u2019s premises , found it established that the illegal gaming machines had been used at the applicant \u2019s club for commercial purposes . The copy of the letter agreement dated DATE on the supply of an illegal gaming machine by the ORG to the applicant \u2019s club had provided for the equal splitting of the proceeds resulting from the machine \u2019s operation between the parties . By agreement dated DATE it had been agreed that a gaming machine of the type that later was confiscated by the ORG at the applicant \u2019s club was to be delivered by the ORG and that the proceeds from its operation were also to be divided equally between the ORG and the applicant . The related delivery note of DATE showed the serial number of the installed gaming machine which was identical with the serial number on the confiscated machine . Furthermore , the compilation of commissions collected by PERSON on behalf of the ORG dated DATE as well as the further reports on revenues obtained by the ORG demonstrated that proceeds had been generated by both such machines during the period at issue and showed what proportion of such profits had been allocated to the ORG . The related figures corresponded to statements on the amounts of payments credited to the ORG \u2019s accounts . The court further pointed out that the applicant \u2019s allegations that the confiscated gaming machine had not been functioning was refuted by the testimony of the ORG official who had been present at the club on the occasion of the control visit on DATE and , when heard as witness at trial , had confirmed that the machine had been accessible to the public and fully operational .","ORG further referred to the witness statement made by PERSON on DATE in the proceedings against PERSON ( see above \u00a7 CARDINAL ) . The court explained that it had not been possible to hear the witness in person on the ground that the latter , according to information provided by the cantonal police , was hospitalised abroad . The court , while noting that the applicant had not had the opportunity to confront PERSON at any stage of the proceedings against him , held that PERSON \u2019s statements could nevertheless be admitted as evidence in the instant proceedings since they were not decisive for the applicant \u2019s conviction and the remaining available evidence was sufficient to prove the applicant \u2019s guilt .","ORG specified in this context that in addition to the aforementioned documentary evidence , PERSON had testified at trial that as a rule the proceeds from the operation of gaming machines had been equally split between the ORG and the tenants of the enterprises where the machines had been installed . ORG , who at the time had worked as commercial executive for the ORG , had confirmed that the proceeds from the operation of gaming machines installed at the applicant \u2019s club had also been divided equally . He had further confirmed that he had drawn up the documents dated DATE in relation to the delivery of the machine that had later been confiscated at the applicant \u2019s club . He had handed the documents over to the chauffeur who had been charged with delivering the machine to the applicant \u2019s club . ORG had further testified that the conclusion and implementation of agreements on the installation of gaming machines had been within the exclusive competence of GPE and PERSON and it was inconceivable that machines had been delivered also by PERSON whose function had been limited to emptying the cash registers of machines installed by the ORG . PERSON stated in this context that PERSON had been a reliable employee and the commission invoices established by him had always been accurate . In view of these testimonies ORG concluded that the applicant \u2019s allegations that PERSON had regularly exchanged and replaced the machines installed at his club and that for this reason he had not been aware of the type of machines installed at a given moment , were not credible .","The applicant appealed against the judgment to the Basel - Landschaft Cantonal Court ( PERSON ) and by written submissions dated DATE requested to be acquitted .","He invoked again that the proceedings had disregarded fundamental rights of the defence in violation of LAW reasons already set out on the occasion of his previous appeals . He further argued that while he had been assisted by an interpreter on the occasion of the trial before ORG he had not disposed of such assistance at the pre - trial stage in the proceedings before the ORG . For this reason his statements on the occasion of his hearing as a witness in the proceedings against the ORG on DATE had been contradictory .","The applicant further maintained that neither he nor his counsel had been granted an opportunity to examine PERSON , the main witness against him , at any stage of the proceedings in breach of LAW ( d ) of the LAW . This witness had not only incriminated the applicant on the occasion of his hearing on DATE in the proceedings against PERSON but had also produced several of the documents on which ORG had based his conviction and the veracity of which the applicant contested . In the instant case the national authorities could also not exceptionally dispense with a witness hearing on the ground that PERSON was not in a position to attend the trial due to his hospitalisation . In this context it was relevant that the ORG had failed to provide for a possibility to examine PERSON at the pre - trial stage where such confrontation could have been arranged without problems . The applicant consequently reiterated his request that PERSON be heard as a witness in the proceedings . He further repeated his request for an examination of PERSON at trial .","By a decision of CARDINAL DATE ORG granted the applicant \u2019s request to hear PERSON and dismissed the remainder of his request for the taking of evidence . On DATE the court was informed by the municipal police that PERSON was currently hospitalised in GPE . This information was confirmed by e - mail messages from PERSON and a representative of the hospital . Furthermore , PERSON \u2019s brother had explained over the phone that PERSON had undergone surgery and had to remain in hospital for further treatment . By a decision of DATE the court , pointing out that a confrontation between the applicant and PERSON was not so important as to justify the postponement of the hearing scheduled for CARDINAL DATE , ordered that the trial be pursued without PERSON being questioned .","On the occasion of the hearing on DATE counsel for the defence again requested that PERSON be examined at trial . The ORG , acting as joint plaintiff to the prosecution , moved that the application be dismissed since the court disposed of sufficient further means of evidence for a conviction . ORG dismissed the applicant \u2019s request .","In its judgment rendered on DATE ORG fully endorsed ORG findings at first instance . The court further took the view that the rights of the defence had been fully respected in the proceedings .","As regards the applicant \u2019s request to hear PERSON as a witness ORG , while noting that the applicant had not been granted an opportunity to confront PERSON at any stage of the proceedings , emphasised that by the ORG \u2019s final record of CARDINAL DATE , the applicant had been informed of his right to request that the investigations be complemented and could thus have asked already at this point in time for PERSON to be examined . ORG further pointed out that the courts at both instances had made efforts to enable PERSON \u2019s examination at trial . ORG had summoned PERSON to appear at the hearing . The latter being hospitalised abroad , however , could not attend the trial . The witness had again been summoned to appear at the hearing on DATE in the appellate proceedings . According to information obtained through the competent municipal police on DATE and from the witness \u2019s brother , the latter was subject to further treatment in a hospital in GPE where he had to remain for some time . His examination had thus been objectively impossible . Another adjournment of the hearing would have further delayed the proceedings that had already lasted a considerable time and would have contravened the principle that criminal proceedings should be conducted expeditiously .","ORG further stated that pursuant to LAW evidence was only to be obtained to the extent this was necessary with a view to establishing the facts relevant for deciding on an appeal . The ORG took the view that in the instant case it disposed of sufficient elements for its findings of fact and that PERSON \u2019s testimony and the documents produced by him were not of significant importance in this respect . The fact that PERSON had not been examined had thus not violated the rights of the defence . ORG at first instance had based its assessment of the applicant \u2019s guilt on the applicant \u2019s submissions , the testimonies of the witnesses heard at trial as well as the agreements and delivery notes of DATE and CARDINAL DATE and the reports on profits allocated to the ORG . The documents issued by PERSON had been taken into account to the extent they were consistent with and had corroborated these available pieces of evidence .","In ORG view , on the basis of the whole body of evidence taken together , and even without taking into account PERSON \u2019s testimony , it was established that the applicant had operated CARDINAL illegal gaming machines at his bar which had been provided by the ORG and that the latter and the applicant had equally shared the gains from their illegal operation . The applicant \u2019s submissions to the contrary had all been refuted by the available evidence . The fact that at his hearing before the ORG on DATE the applicant had stated that he did not recall having met PERSON in the past whereas in the proceedings before ORG he had submitted that PERSON had regularly installed and replaced gaming machines at his club and had also been a good client provided a further indication that his testimony was not credible .","As regards the applicant \u2019s additional complaint regarding the lack of a formal decision by the authorities with respect to the opening of criminal investigations against him and the fact that he had not been heard by the ORG in his capacity as accused , ORG reiterated the related explanations provided in the ORG \u2019s penal order of DATE ( see \u00a7 CARDINAL above ) . It recalled that even though in the final record of the investigations established by the ORG the applicant had been informed about his defence rights and had disposed of sufficient time to avail himself of such rights he had failed to do so . The court specified in this context that although the applicant \u2019s knowledge of the NORP language was limited it could have been expected of him to enquire about the record \u2019s contents .","By a judgment of DATE ORG ( PERSON ) , endorsing ORG decision , rejected the applicant \u2019s related appeal lodged on DATE . ORG judgment was posted on DATE and served on the applicant on DATE .","LAW lit . a of LAW pertaining to gambling and gambling houses ( GPE \u00fcber PERSON und ORG ) stipulates that the organisation or commercial offering of games of chance outside licensed gambling houses is subject to imprisonment or a fine of MONEY . ORG is the competent authority for the prosecution of illegal gambling .","LAW ( Bundesgesetz \u00fcber das Verwaltungsstrafrecht ) of DATE as amended provides for the procedural rules to be observed in the event the prosecution of an offence falls within the competence of an administrative authority . Pursuant to LAW . of the LAW the relevant administrative authority is competent to rule on breaches of administrative criminal law unless a superior authority holds that the offence committed requires that a prison sentence be imposed , in which case the matter is referred to the criminal courts . Officers of the competent administrative authority who are specifically trained for this purpose may conduct the investigations with the support of the cantonal and municipal police . Article CARDINAL of the LAW requires that the opening of investigations , their conduct and their outcome shall be apparent from the official files . Articles CARDINAL et seq . stipulate that the investigating officers may collect written and oral evidence and hear witnesses . The provisions further specify under which conditions the search of apartments or business LOC and the confiscation of documents or objects be ordered within the scope of ongoing investigations .","According to LAW , once the investigating officer deems the investigations to be complete he or she draws up a final record ( ORG ) , to discontinue the proceedings or to refer the case to the criminal courts . The convict may object to such a decision within DATE from the date it was served on him . The objection has to be made in writing , contain a specific and reasoned request and set out any related means of evidence . The administrative authority , having re - examined the case , then renders a new decision . The convict may , within DATE after the decision has been served on him , request that the case be referred for judicial review to the criminal courts ( Article CARDINAL ) . In this case , the concerned administrative authority transfers the files to the prosecution authorities at the competent cantonal criminal court . Articles CARDINAL to CARDINAL contain rules regarding the ensuing proceedings before the criminal courts . The referral shall constitute the bill of indictment . The accused , the competent public prosecution authorities and the concerned administrative authority are parties to the court proceedings . The evidence gathered within the scope of the administrative criminal proceedings as set out in the investigation file established by the administrative authority shall form an integral part of such court proceedings . The criminal court may on its own motion or at the request of either party order the taking of further evidence . The rules of LAW apply to the proceedings to the extent GPE does not contain specific regulations .","Pursuant to Section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) of the GPE Basel - Landschaft of DATE the parties to proceedings before the criminal court may within a time - limit set by its president file an application for the taking of further evidence . The president may , inter alia , refuse a related request in the event the taking of the requested evidence is obviously not necessary or in the event it is impossible to obtain . As regards the proceedings before ORG"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-122352","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2013,"docname":"MCLEAN AND COLE v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Ineta Ziemele;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Paul Mahoney;Vincent A. De Gaetano","text":["NORP The applicant in the first case , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by ORG , a firm of solicitors based in GPE .","NORP The applicant in the second case , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by ORG , a firm of solicitors based in GPE .","Both applicants are in detention following their conviction for various criminal offences .","The applicants complained that , as convicted prisoners , they had been subject to a blanket ban on voting in elections and had been , or would be , prevented from voting in CARDINAL or more of the following : elections to ORG on DATE ; the parliamentary election on DATE ; elections to ORG on CARDINAL DATE ; a nationwide referendum on the alternative vote on CARDINAL DATE ; local government elections on various dates ; and future elections .","Pursuant to sections CARDINAL of the Representation of LAW DATE a convicted person , during the time that he is detained in a penal institution in pursuance of his sentence , is legally incapable of voting at any parliamentary or local election .","Section CARDINAL of the Scotland Act DATE provides that only persons who , on DATE of the poll , would be entitled to vote as electors at a local government election and are registered in the register of local government electors are entitled to vote as electors at an election to ORG .","Section CARDINAL(CARDINAL ) of ORG provides , in so far as relevant , that a person is entitled to vote at an election to ORG if , on DATE of the poll , he would be entitled to vote as an elector at a parliamentary election .","In so far as relevant , section CARDINAL of LAW and LAW provided that only those who , on DATE of the alternative vote referendum , were entitled to vote as electors at a parliamentary election were entitled to vote in the alternative vote referendum of CARDINAL DATE .","Each of the CARDINAL jurisdictions of GPE , GPE , GPE and GPE ) is subdivided into a number of local authorities . The specific system in place varies depending on the jurisdiction in question .","The system of local government was created by statute . Local authorities\u2019 internal organisation and competences are regulated by statutes enacted by ORG and by ORG of the CARDINAL devolved jurisdictions ( GPE , GPE and GPE ) .","The functions and powers of local authorities are of a predominantly administrative nature and generally cover areas such as waste management and collection , housing , local planning , council tax collection , licensing , transport and social services . In respect of these various areas , local authorities carry out their duties in accordance with primary legislation governing the area in question and can only act in so far as they are authorised to do so by statute or by subordinate legislation .","Local authorities have the power to make by - laws , which are essentially laws of local application . By - laws usually have to be confirmed by a Government minister or the ministers of the devolved jurisdictions before they can take effect .","On DATE ORG ) adopted a pilot judgment in NORP and PERSON v. GPE , nos . CARDINAL and CARDINAL\/CARDINAL , ORG DATE ( extracts ) . It found a violation of LAW No . CARDINAL in respect of the blanket ban on voting applicable to convicted prisoners as regards parliamentary elections and elections to ORG . It also imposed a deadline for action , indicating that GPE had to introduce legislative proposals to amend the incompatible legislation within DATE on which the judgment became final , with a view to the enactment of the law according to any time - scale determined by ORG .","On DATE the Government published a draft bill on ORG voting eligibility . The draft bill includes CARDINAL proposals : ( CARDINAL ) ban from voting those sentenced to DATE or more ; ( CARDINAL ) ban from voting those sentenced to DATE ; or ( CARDINAL ) ban from voting all prisoners . The proposals cover both local and parliamentary elections . Although the draft bill is currently drafted to extend to GPE and GPE only , the introduction and explanatory notes make it clear that the final bill would extend to the whole of GPE . The devolved jurisdictions are therefore involved in the pre - legislative process .","On DATE ORG , responsible for supervising the execution of the judgment , adopted a decision in which it noted the range of options proposed in the draft bill ; endorsed the view that the third option aimed at retaining the blanket ban was not compatible with the Convention ; invited the Government to keep it regularly informed of the proposed time - scale ; and decided to resume consideration of the case at the latest at its DATE meeting .","On DATE a motion to nominate the CARDINAL members of ORG to serve on a joint committee which will conduct prelegislative scrutiny of the draft bill was agreed . On DATE a motion to nominate the CARDINAL members of ORG to serve on the committee was agreed . The committee held its first meeting on DATE and will report by DATE .","On DATE , there was a hearing before ORG in the case of PERSON v. The Lord President of the ORG and another . The claimant is a serving prisoner who claims that the prohibition on prisoners voting is incompatible with ORG law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107307","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2011,"docname":"CASE OF FRATANOLO v. HUNGARY","importance":3,"conclusion":"Violation of Art. 10;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Helen Keller;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant , at the material time a member of ORG ) , a registered left - wing political party , was convicted by ORG under section CARDINAL ( CARDINAL ) of LAW of the offence of having displayed a totalitarian symbol in public . The court observed that the applicant had publicly worn a CARDINAL - pointed red star while participating in a demonstration on DATE celebrating GPE \u2019s accession to ORG and , at the same time , the International Workers\u2019 Day . As a sanction , the court issued a reprimand .","NORP On appeal , on DATE ORG reversed this judgment and acquitted the applicant . In holding that his act had represented in fact no danger to society , ORG made reference inter alia to a judgment of ORG , adopted on DATE , which had been introduced by another individual on account of a conviction similar in nature ( PERSON v. GPE , no . MONEY ) . In that judgment ORG held that prosecution for having worn a red star amounted to a violation of that applicant \u2019s freedom of expression enshrined in LAW .","In pursuit of the prosecution \u2019s further appeal , on DATE ORG reversed the second - instance judgment and upheld the applicant \u2019s conviction . It confirmed the reprimand and ordered the applicant to pay MONEY in criminal costs . ORG held that positive NORP law did not permit the domestic courts to apply the holding of PERSON as such . It pointed out that the conditions of social dangerousness DATE which had been found by ORG to be absent in some , otherwise similar , cases \u2013 were indeed present in the instant circumstances . The court argued as follows :","\u201c The common feature of those cases can be summarised as the absence of identification with the totalitarian symbol , in the first case more emphatically , and in the latter one by virtue of the perpetrator \u2019s indifference towards the symbol connected to the incriminated conduct .","The situation in the present case , however , was quite the contrary .","PERSON used the CARDINAL - pointed red star in a political context and as a sign of solidarity felt for his fellow party member , that is , because he identified himself with the symbol , with its meaning known and communicated to the outer world . In this context , the defendant \u2019s concrete political credo is irrelevant : the statutory provision prohibits everyone , irrespective of one \u2019s conviction , from the use of totalitarian symbols , including the CARDINAL - pointed red star associated with NORP dictatorship . This statement remains true even if the symbol in question has dual meaning referring both to the totalitarian system mentioned above and to the international workers\u2019 movement promoting the ascendance of large groups of society . ...","The entirety of the elements of this offence is defined as the legal hypothesis of a socalled \u201c conduct \u201d ( immaterial ) crime . This means that the offence will be committed merely by performing the sanctioned conduct ( dissemination , use in public or public display ) and no further condition or result , let alone actual fear or anxiety caused to those perceiving , is required . \u201d","The court concluded that the applicant \u2019s act was indeed dangerous to society .","Act no . DATE on LAW provides :","\u201c ( CARDINAL ) A criminal offence is an act perpetrated intentionally or DATE if the law also punishes negligent perpetration \u2013 by negligence , which represents a danger for society and for which the law orders the infliction of punishment .","( CARDINAL ) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional , social or economic order of GPE , or the person or rights of citizens . \u201d","\u201c ( CARDINAL ) Any person who ( a ) disseminates , ( b ) uses in public or ( c ) exhibits a swastika , an ORG - badge , an arrow - cross , a symbol of the sickle - and - hammer or a CARDINAL - pointed red star , or a symbol depicting any of them , commits an offence \u2013 unless a more serious crime has been committed \u2013 and shall be sentenced to a fine .","( CARDINAL ) The conduct prescribed under paragraph ( CARDINAL ) is not punishable if it is done for the purposes of education , science , art or in order to provide information about history or contemporary events .","( CARDINAL ) Paragraphs ( CARDINAL ) and ( CARDINAL ) do not apply to the insignia of GPE which are in force . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69499","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"KACZMAREK v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant lodged a claim for the division of matrimonial property with ORG ( S\u0105d Rejonowy ) .","The proceedings are pending before the first - instance court .","On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","Section CARDINAL of the CARDINAL Act reads , in so far as relevant :","Section CARDINAL reads , in so far as relevant :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","... \u201d","On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71897","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2005,"docname":"DEJBAKHSH AND MAHMOUD ZADEH v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , ORG D \u201d ) and PERSON ( \u201c M \u201d ) , are NORP nationals who were born in DATE and DATE respectively . They are mother and daughter . They are represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants arrived in GPE on DATE and applied for asylum on DATE the same year . They presented genuine passports , valid until DATE and DATE respectively , as well as visas valid from DATE to DATE , issued by ORG in GPE on DATE . The applicants had previously been granted visas to GPE on CARDINAL separate occasions ; D in DATE and M in DATE , both for the purpose of visiting relatives . D \u2019s mother ( M \u2019s grandmother ) had been a permanent resident of this country since DATE , as had CARDINAL sisters and a brother of NORP","ORG ( Migrationsverket ) conducted an initial interview with the applicants on DATE . D essentially stated the following : Her mother had died on DATE . She applied for asylum in GPE solely because of the problems she had experienced with her husband in GPE ( henceforth referred to as \u201c H \u201d ) . They had married in DATE and since then he had repeatedly subjected her to harassment and physical assault . They had CARDINAL children together , M and a son born in DATE . H had also assaulted the son . The assaults had occurred when H , an alcoholic , was drunk and had caused D injuries such as a broken jaw . At CARDINAL point , D had been in surgery for a navel rupture . Before the wound had healed , H had stabbed her in the stomach with a knife so that she had to be operated again . D had not reported any of the incidents of assault to the NORP authorities because they would not offer her any protection anyway . Furthermore , H was an influential person . He was retired but had worked in the military , where he had held the rank of colonel . She believed that he worked for the revolutionary committee ; he had done so previously . The stabbing incident had been automatically reported to the police , but she had told them that she had fainted and could not remember what had happened . The police had not pursued the matter any further . She had not divorced H , because this was not possible for her , being a woman . However , they had been living apart since DATE , when he had thrown her and the children out of their home . Prior to that they had lived apart from time to time , but this time the separation had been definite . D had moved with the children into her mother \u2019s home in GPE and , after the son had married , D and M had lived there alone . However , H had continued to harass the applicants , claiming that they were women of no morals . He had asserted that M must marry a man he had chosen for her in order to restore her father \u2019s honour . If M would disobey him , he had threatened to cut her throat . Despite the discords , H had given his permission for D to apply for a passport . This passport had been issued on DATE . This time she had left GPE without his knowledge . The additional consent he had given her to travel outside GPE in DATE still applied . Since the separation in DATE , D had worked as a hairdresser and , in addition to an inheritance from her father , she had received financial support from her mother and family .","At the interview on DATE , M essentially stated the following : She had left GPE because of her father . She and D had lived in her grandmother \u2019s home in GPE for DATE but had also stayed with H intermittently . However , they had not returned to him since their last visit to GPE . She had studied at the university in PERSON DATE and was currently working at a private pharmaceutical company . While she had still been studying , she had been interrogated by the security forces several times , the last time in DATE . H had friends in the security forces . She had been interrogated because of his claim that she was a girl of bad morals . He had not been able to take her from the university because she had already paid the entrance fee . The man he wanted her to marry was already married .","ORG conducted a second interview with NORP and M on DATE . On this occasion D essentially added the following : Her mother had been buried in GPE on DATE . D \u2019s siblings had brought the remains from GPE to GPE . H had tried to ruin the funeral . He had taken M to a physician in forensic medicine to ascertain whether she was still a virgin . D had not lived with H since DATE but had visited him at times when he had been ill . He had allowed her and the children to live on their own so that he would be free to get drunk and would not have to pay for them . After the revolution he had worked in the revolutionary court for DATE . Just before retiring in DATE , he had been in command over NORP prisoners of war . Since then he had worked secretly for the revolutionary committee but she did not know exactly for whom . The committee was part of the security forces ( PERSON ) and its task was to ensure that people followed rules of dress and behaviour . There were several committees named after geographical areas . H knew that she and M had left GPE , but she did not know whether he had reported her to some authority . H had disapproved of M \u2019s studies and had physically assaulted M CARDINAL or CARDINAL times when he had come to visit her at her student residence .","With regard to the stabbing incident , D first stated that the operation for the navel rupture had been carried out in DATE and that H had come to see her while she had still been in bed recovering . She later stated that the operation , which had allegedly occurred on DATE , had not been well performed . H had asked what she had done wrong against God , since she had not yet recovered , and had stabbed her . She had first thought that her stitches had come undone . When she had opened her eyes she was in hospital . The police had arrived and told her that H had stabbed her . When asked by the interviewer why the police had come to the hospital , D said that hospitals were obliged to report knife and bullet injuries to the police . She further stated that when she had regained consciousness she had told the police what had happened . They had also talked with the nurse and the doctors . She had not contacted the police to find out what had happened with the investigation , and assumed that it had been dropped since no one had contacted her about it .","During the second interview on DATE , M essentially added the following : H had come to the university CARDINAL times during DATE she had studied there . He had been rude and had always given her a smack on the face . On most occasions he had been accompanied by some of his friends from the committee in GPE , which was a group of people belonging to ORG ( a paramilitary volunteer force operating in GPE ) . They made sure that people followed strict moral rules . The last time M and her mother had stayed with H had been in DATE when they had returned from GPE . They had stayed with him for DATE . They had moved away from him for the first time in DATE and had moved back and forth a number of times until DATE . Since DATE they had not returned to him .","In submissions of DATE to ORG , counsel for the applicants stated the following : The son of the family had recently told the applicants that H had threatened and blamed him for their departure from GPE . H had further stated that he intended to put them on trial in order to have them sentenced to stoning when they returned to GPE . As to what extent the applicants had lived with him , it was submitted that the applicants had returned to him on some occasions DATE because it had been difficult to live without him and because he had repeatedly promised to give up drinking and stop battering NORP However , he had never kept his promise and they had not lived with him since DATE after returning from GPE in DATE .","To the submission of DATE were appended CARDINAL documents , seemingly drafted by NORP authorities : a \u201c statement \u201d issued by the \u201c NORP legal complex \u201d on DATE , apparently based on a report made by H , and CARDINAL summonses instructing the applicants to appear at the complex on DATE . The applicants also invoked a marriage licence between NORP and H.","On DATE ORG rejected the ORG request for a residence permit and ordered that they be deported to GPE . The ORG questioned the veracity of the ORG statements concerning the alleged actions and controlling influence of H , as the applicants had lived on their own since DATE , as M had been able to study in another town DATE , and as they had been able to leave for GPE in DATE and in DATE . Noting that H was retired , ORG also found that the applicants had not shown that he was a man of great influence in NORP society or that he was involved with the security forces . ORG also found it remarkable that the applicants had waited DATE after their arrival in GPE to apply for asylum . The fact that D \u2019s mother had died could not explain this delay , as she had died and had been buried in GPE before the applicants left for GPE . ORG further noted that D had given conflicting information on her reporting the stabbing incident to the police . It also took into account that the applicants had not turned to the police to report H \u2019s alleged threats and harassment , and that D had not filed for divorce . In conclusion , ORG did not find the ORG statements credible .","The applicants appealed to ORG ( Utl\u00e4nnings - n\u00e4mnden ) on DATE . In the appeal they submitted that they had applied for asylum while their visas were still valid and that they were staying legally in GPE . The reason why they had not applied for asylum earlier was that they had been busy with different mourning ceremonies among relatives and friends and that D had been in a bad mental state due to her mother \u2019s death . It was furthermore submitted that D \u2019s operation for the navel rupture had taken place at DATE , and that H had stabbed her on DATE . In this respect the applicants invoked an operation report sheet and a note of medical records . They also invoked an ORG card to confirm their claim that H was employed by ORG .","Further submissions were made to ORG on DATE . Appended to the submissions was a summons ( \u201c warning \u201d ) directed at D to appear before the family court in GPE on DATE in order to respond to a report made against her by H. The applicants stated that the son had sent the summons to GPE by fax and that , according to the summons , there was further documentation in the case , the content of which D was not aware , and which she did not know how to access unless she was to appear in person before the court . D submitted that a summons to the family court could be very serious because the various religious authorities cooperated closely with that court , which she believed to be the case here .","On DATE the applicants made yet another submission to ORG . They claimed that the report filed by H against D had turned out to concern adultery and had resulted in D being sentenced in her absence by an NORP court to death by stoning . The son had allegedly obtained the report and the judgment by bribing court officials . As it appears , the report had been filed on DATE , the hearing held on DATE and the judgment issued DATE .","In final submissions of DATE , the applicants claimed that the circumstances that had led to the judgment against D gave strong reason to believe that M would face a similar charge and conviction .","On DATE , ORG rejected the ORG appeal . It generally agreed with ORG assessment and added the following : It noted that the medical documents concerning D \u2019s operation for stabbing wounds were dated DATE and not DATE , as alleged by NORP Although D had stated that she had been operated for a navel rupture before the alleged stabbing , the documents did not mention any such operation . In regard to the alleged judgment and death sentence against NORP , ORG found it remarkable that she had been sentenced in absentia , having regard to the evidence requirements under the hod\u00fbd rules of the NORP criminal law . ORG also noted that the judgment submitted by the applicants stated that it was final , whereas NORP death sentences were subject to appeal .","Following the ORG \u2019s indications under LAW , ORG decided , by decisions of DATE , CARDINAL DATE and DATE , to stay the enforcement of the deportation order against the applicants , on the latter occasion without a time - limit ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78860","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2006,"docname":"SVENSKA FLYGFORETAGENS RIKSFORBUND AND SKYWAYS EXPRESS AB v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"","text":["The first applicant , NORP GPE ( ORG ) , is a nationwide non - profit association open for membership to all serious , commercial airline companies . The second applicant , ORG , is a private limited airline company based in GPE and is a member of the applicant association . The applicants are represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , Mr PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","ORG ( PERSON , hereinafter \u201c the ORG \u201d ) is a public utility , wholly - owned by ORG . The activities of the ORG are directed by the Government and subject to their decisions . The ORG operates CARDINAL airports in GPE and is responsible for , inter alia , air traffic services and air safety in the country . The aviation infrastructure is financed through charges levied by the ORG on the airline companies wanting to use ORG airports . CARDINAL of the ORG \u2019s budget is financed by these traffic charges .","The Government specify the economic goals and restrictions applicable to ORG authorities , such as the ORG , through so - called letters of regulation ( regleringsbrev ) , which are binding . The letter of regulation relevant to the instant case was issued by a Government decision dated DATE . It stipulated guidelines for , inter alia , the overall targets and the financial conditions of the ORG and specifically fixed the financial targets of the ORG for the period DATE . The letter also stipulated the following limitation on permissible increases in traffic charges :","\u201c As a restriction on price increases , the traffic charges , excluding land routing charges , security charges and noise charges , must not increase on average over DATE more than the net price index , calculated as of DATE . \u201d","Following consultations with NORP and foreign airline companies , the ORG , on DATE , decided to adopt a regulation which established new norms for air traffic charges at ORG airports ( MONEY Statutes of the ORG \u2013 Luftfartsverkets f\u00f6rfattningssamling DATE LFS CARDINAL:CARDINAL ) . The regulation was published on DATE and entered into force on DATE .","By a letter of DATE , the first applicant , on behalf of its members , filed an appeal with the Government against the decision of the ORG . It argued that the increase in air traffic charges amounted to PERCENT , which was too high having regard to the situation in the country with hardly any inflation and low interest rates . It also pointed out that the new charges heavily disadvantaged smaller aircraft , imposing on them relatively high price increases compared to heavier aircraft . The first applicant also stated that the airline companies had not had sufficient time to alter their customer prices in line with the increase since the decision had been made by the ORG on DATE and had come into force already on DATE .","The ORG submitted its comments to the Government in a letter dated DATE . The ORG initially stated that the appeal had been received on DATE and had thus been made in time . ( The stated date is obviously incorrect ; the correct date appears to have been CARDINAL DATE . )","However , the ORG opposed the appeal since the increase in the charges was necessary to fulfil the financial demands imposed on the ORG . It stated that the total increase in charges amounted to PERCENT , which corresponded to an DATE increase in its income of MONEY ( SEK ) . The main increases had been made in relation to passenger charges , charges for local air flight services and the minimum charges for landing . The increase of the CARDINAL latter charges in relation to smaller aircraft had been compensated by introducing a new DATE landing card and by increasing the weight - limit for aircraft having to pay the local air flight charge . Furthermore , the lighter aircraft had experienced very little price increases DATE compared to the heavier aircraft .","The ORG further reiterated that the Government had imposed a limit on the charge increase corresponding to the net price index calculated from DATE . The increase in charges previously made DATE had , however , been below this limit ; the ORG had in fact lowered prices by PERCENT during this period . The current increase was therefore well within the scope of possible increases accumulated over DATE .","In a letter dated DATE , the first applicant submitted to the Government its comments on the ORG \u2019s position . It stated that the introduction of the DATE landing card for the lighter aircraft , whilst commendable , was of minor importance since CARDINAL aircraft in the country could benefit from it . It conceded that , in DATE , the ORG had charged less than the authorised price increases . However , it found it remarkable that the ORG relied on the cumulative effect of the price ceiling \u2019s shortfall over DATE to justify a steep increase in the charges now .","On DATE the first applicant further submitted that the net price index had fallen heavily since DATE and had , during certain periods , almost reached the DATE level . The scope for increasing the charges had thus gradually been reduced . Furthermore , a large part of the increase concerned charges restricted by the ORG \u2019s letter of regulation , and the increase in those charges clearly exceeded the development of the net price index . The first applicant also stated that the real increase in charges was in fact greater than that mentioned by the ORG , since infrastructure costs should also be considered a traffic charge .","The ORG submitted to the Government on DATE that it had not overstepped the price ceiling set by the Government and that the infrastructure charges were to be excluded from the calculation of the increases complying with the price ceiling .","The first applicant responded , in submissions to the Government on DATE , that the ORG \u2019s letter of regulation did not provide for the possibility of accumulating the DATE increases , as the ORG had done , and that the increase in air traffic charges clearly exceeded the development of the net price index during the given period .","On DATE the Government dismissed the first applicant \u2019s appeal for the following reasons :","\u201c Under LAW of the LAW ( CARDINAL:CARDINAL ) with Instructions for the ORG , the decisions of the ORG in matters other than personnel issues are subject to appeal only if expressly stated . The instant appeal concerns a decision on the issue of regulations , as provided for in chapter CARDINAL of ORG [ Regeringsformen ] . There is no provision stating that an appeal lies against such a decision of the ORG . The appeal will not therefore be examined . \u201d","The ORG is a public utility and part of the ORG administration . It does not own its assets but merely administers them for the ORG . As opposed to other public authorities , a utility is a self - financing unit conducting business , and is run on principles of corporate finance . Under section CARDINAL of the Ordinance with Instructions for the ORG ( F\u00f6rordningen med instruktion f\u00f6r PERSON , DATE , hereinafter \u201c the CAA Ordinance \u201d ) , applicable at the material time , the ORG is defined as a central public authority with the overall responsibility for civil aviation .","The Government decide upon the conditions for the individual ORG authorities through ordinances and DATE letters of regulation . The letters of regulation set out , inter alia , the goals to be achieved by the authority , the funding at the authority \u2019s disposal and the way that funding should be distributed among its different activities .","LAW , LAW ( ORG , ORG ) provides that the ORG , or an authority designated by the ORG , may issue regulations concerning charges for the use of public airports or other public facilities or services for air traffic . While the air traffic charges originally were set by the ORG , the competence to do so was , of DATE , delegated to the ORG through an amendment ( section CARDINAL ) to LAW , CARDINAL:CARDINAL ) . These CARDINAL provisions constituted the legal basis for the ORG \u2019s decision of DATE to adopt its regulation on new air traffic charges .","As regards the right to appeal , section CARDINAL of the CAA Ordinance provided the following :","\u201c The decisions of the ORG in personnel matters are subject to appeal to the Government , [ unless otherwise stated ] ...","The decisions of the ORG concerning the enrolment for education in the air traffic control service are not subject to appeal . The decisions of the ORG in other matters are subject to appeal only if","NORP this follows from a provision other than section CARDINAL(a ) of LAW [ ORG , CARDINAL ] , or","a provision specifically refers to section CARDINAL ( a ) of LAW .","If the matter concerns the exercise of public authority in respect of an individual and there are no specific provisions on appeal , the decision is nevertheless subject to appeal to the Government . \u201d","The Public Administration Act applies to the handling of matters by the administrative public authorities and to the courts\u2019 handling of administrative matters ( section CARDINAL ) .","Under LAW of the LAW , a decision may be appealed by the person whom the decision concerns , provided that it has affected him or her adversely and is subject to an appeal .","Under LAW ( a ) , appeals lie to the administrative courts . However , this does not apply to decisions in administrative matters or in matters concerning the adoption of regulations ( normgivnings\u00e4renden ) , as provided for in chapter CARDINAL of ORG ( Regeringsformen ) . If there is a specific provision in another LAW providing for an appeal , that provision will have precedence .","Section CARDINAL provides that an appeal shall be made , within DATE , to the authority which issued the impugned decision . According to section DATE , that authority shall examine whether the appeal has been submitted in time . If it has been submitted in time , the appeal and the case - file are forwarded to the authority empowered to examine the appeal .","LAW contains provisions on laws and other regulations , stating the areas which may be regulated only by law and the areas which may also be regulated by other provisions , as well as the competence of ORG or the ORG to delegate the power to issue regulations to the authorities or the municipalities .","The term \u201c exercise of public authority \u201d ( myndighetsut\u00f6vning ) is used in many laws and regulations , including ORG , LAW , LAW ORG ) and LAW ( ORG , CARDINAL:CARDINAL ) . According to the preparatory works of ORG ( prop . CARDINAL , p. CARDINAL ) and LAW ( prop . CARDINAL , p. CARDINAL ) , the term has the same meaning as section CARDINAL of the repealed DATE LAW ( DATE ) . That section gave the following definition : \u201c the exercise of authority to decide on a benefit , right , obligation , disciplinary sanction , dismissal or other comparable issue in respect of an individual \u201d ( \u201c ut\u00f6vning av befogenhet att f\u00f6r enskild best\u00e4mma om f\u00f6rm\u00e5n , r\u00e4ttighet , skyldighet , disciplinp\u00e5f\u00f6ljd , avskedande eller annat j\u00e4mf\u00f6rbart f\u00f6rh\u00e5llande \u201d ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101319","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2010,"docname":"FIEROS AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The details of the applicants are contained in the annex .","ORG ( \u201c the Government \u201d ) were represented by their Agent ; and in those cases in which they were intervening party , GPE were represented by their Agent .","The facts of the cases , as submitted by the applicants , may be summarised as follows .","The applicants submitted that since the DATE NORP intervention in northern GPE they have been deprived of their property rights , as their property was located in the area that was under the occupation and control of the NORP military authorities . Since that date , they had been prevented from having access to and from using their respective homes and properties . In particular :","The first applicant , mother of the second and third applicants ( born in DATE and DATE respectively ) was married to PERSON , who by DATE was a leading property developer in the GPE area , owning CARDINAL sites on many of which he had built villas and luxury flats as well as the family home . On his death in DATE , his property passed to the applicants . In or DATE , the second applicant donated her share in the property to the second and third applicants .","The second applicant is the father of the third , fourth , fifth and sixth applicants , born in DATE , DATE , DATE , DATE and DATE respectively . The third to sixth applicants are shareholders in the first applicant , a company set up in DATE , which dealt in real estate . The fifth and sixth applicants are director and secretary , and director , respectively of the first applicant .","The first applicant owned various houses , shops , warehouses and plots of land . This property included the house built on plot CARDINAL which was where the other applicants were living in DATE and had been living since DATE .","The applicant owned a CARDINAL share in immovable property in GPE , near to GPE , consisting of QUANTITY of orange groves . He had married in DATE and from DATE had been living with his wife and CARDINAL children in a house which belonged to his wife .","The applicants are a family , consisting of a father , mother and CARDINAL children ( born in DATE , DATE and DATE respectively ) . The first applicant owned , or part owned , CARDINAL plots of land in and around LOC , including buildings , shops , apartments , a restaurant and various land on or near the seafront as well as the family home . The third , fourth and fifth applicants each owned varying shares in CARDINAL plots of land . The second applicant owned CARDINAL of CARDINAL plots , CARDINAL co - owned with the first applicant ; while the third applicant wholly owned another plot of land .","The applicants are a family ( grandmother , uncle , father , mother , son and daughter ) born in DATE and DATE respectively . They owned , or part - owned , CARDINAL plots of land and QUANTITY houses and various other buildings in or around LOC . Of the houses , CARDINAL were claimed as having been family homes : a house built on plot CARDINAL which had been the home where the second and third applicants had grown up and where the first and second applicants had been living in DATE and which was now owned by DATE applicants ; and a house built on plot CARDINAL where the third , fourth , fifth and sixth applicants had been living in DATE and which was jointly owned by the second and third applicants .","The applicants are mother and daughter , born in DATE and DATE respectively . In DATE , the first applicant 's husband died and the family home owned by him was inherited by the first applicant and her CARDINAL children . In DATE , on the second applicant 's marriage , the first applicant rented an apartment pending the availability of another property under lease .","In DATE , due to health reasons , the first applicant transferred her share in the family home and other properties , including houses , shops and fields to the second applicant .","The applicants are a family ; the third and fourth applicants born in DATE and DATE are the parents of the first and second applicants born in DATE and DATE .","Prior to the invasion in DATE , the third applicant had run a shop on land which had been owned by the fourth applicant . She had also owned CARDINAL plots of land , on CARDINAL of which was situated the family home .","The applicants are a family ; the first applicant is the mother of the second , third , fourth and fifth applicants , born in DATE and DATE respectively . Prior to events in DATE , they had lived together in the family home owned by the first applicant 's husband . His property , CARDINAL plots of land , including business LOC , building plots , fields and orchards , was inherited by the applicants on his death in DATE . The first applicant however donated her share to the other applicants .","The first and second applicants , husband and wife , are the parents of the third , fourth and fifth applicants who were born in DATE , DATE and DATE . The first applicant owned CARDINAL plots of land , QUANTITY and a storehouse ; the second applicant owned CARDINAL building plots , CARDINAL buildings and QUANTITY ; both appear to have jointly owned the family apartment . The third , fourth and fifth applicants also owned property , including a flat and various plots of building land .","The applicant family , now living in GPE , consist of the first and second applicants , husband and wife , and their CARDINAL children , the third and fourth applicants , born in DATE and DATE . The first applicant was part owner of the family house , as well sharing ownership of a plot of land with the second applicant ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97402","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2010,"docname":"CASE OF PINKOWSKI v. POLAND","importance":4,"conclusion":"No violation of P1-3","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","On DATE ORG ( Prokurator Okr\u0119gowy ) charged the applicant with being an accomplice to an armed robbery and murder in GPE .","On DATE ORG ( S\u0105d Rejonowy ) remanded the applicant in custody . The court justified its decision by the strong evidence against the applicant , the likelihood of a severe sentence of imprisonment being imposed on him if convicted and the risk that he might obstruct the proceedings .","On an unspecified date the applicant was charged with being an accomplice to an armed robbery , murder , false imprisonment and being a member of an organised criminal gang ( no . II K CARDINAL\/CARDINAL ) . All the offences in question were alleged to have taken place in GPE .","Subsequently , on CARDINAL DATE the applicant was charged with being an accomplice to an armed robbery and with the imprisonment , torture and murder of a certain ORG , and with being a member of an organised criminal gang in GPE .","On DATE the bill of indictment was lodged with ORG .","The applicant 's pre - trial detention was extended by the decision of ORG ( S\u0105d Apelacyjny ) of DATE ( upheld by ORG ( S\u0105d Najwy\u017cszy ) on DATE ) and the decisions of ORG of DATE , DATE and CARDINAL DATE ( upheld by ORG on DATE , CARDINAL DATE and DATE , respectively ) .","The courts referred to the original grounds for the applicant 's detention and , additionally , to the international dimension of the case .","Meanwhile , on DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The reports obtained from NORP and NORP forensic experts in the course of the proceedings were contradictory as regards the cause of the victim 's death . However , relying on the witness testimony and other evidence , the court established that the victim had died not as a result of asphyxia ( when the applicant , acting together with accomplices , strangled him with a wire and put tape around his face ) as claimed by some experts but as a result of being shot by the applicant in a forest where the applicant had possibly buried him with the aid of the gang .","On DATE ORG quashed the above judgment and remitted the case to the prosecution for further investigation , with a view to eliminating the major discrepancies in the evidence obtained .","On DATE ORG issued a new decision charging the applicant with , among other offences , attempting to kill PERSON by strangling him and then hiding the body . The supplementary investigation revealed that the victim had died as a result of numerous wounds inflicted on him . In addition , the applicant was found to have incited and led the other accomplices , acting on orders from a certain LANGUAGE All the offences in question were alleged to have taken place in GPE .","Meanwhile , the preventive measure was upheld by decisions of ORG of DATE , DATE , DATE and DATE , and DATE , DATE and DATE .","Subsequently the applicant 's pre - trial detention was extended by the trial court , ORG , in its decisions of DATE and DATE and of DATE and CARDINAL DATE ( upheld by ORG on DATE and DATE and on CARDINAL May and DATE , respectively ) .","The courts reiterated the original grounds for the applicant 's pre - trial detention . In addition , although they acknowledged the fact that the investigation had been lengthy , the domestic courts considered it justified in the light of the international character of the case and the fact that certain witnesses had to be examined with the aid of the NORP authorities .","On an unspecified date in DATE a new bill of indictment was lodged by the prosecutor ( no . II K CARDINAL\/CARDINAL ) and the case was sent to ORG .","From DATE until DATE the trial court held CARDINAL hearings . The court examined a NORP witness and obtained a forensic report from a NORP expert . The case file comprised CARDINAL volumes in NORP and CARDINAL volumes in NORP .","On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . That term was reduced by the period which the applicant had already spent in pre - trial detention , from DATE until DATE and from DATE until DATE .","On DATE ORG acquitted the applicant of inciting and commanding the other accomplices and upheld the remainder of the first - instance judgment .","On DATE ORG dismissed the cassation appeals lodged by the defence lawyers .","NORP In parallel to his pre - trial detention which is the subject of the instant application , the applicant served CARDINAL separate prison sentences . DATE and DATE the applicant was serving a sentence of DATE imposed on him by a judgment of ORG of an unspecified date ( no . III K CARDINAL\/CARDINAL ) . On DATE he started serving a sentence of DATE imprisonment , which was imposed on him by a judgment of ORG of an unspecified date ( no . II K CARDINAL\/CARDINAL ) .","During his pre - trial detention , the applicant was first held in FAC and later in FAC .","On DATE ORG of ORG ( FAC ) classified him as a \u201c dangerous detainee \u201d ( \u201c N \u201d ) . That decision was based on the information about the applicant obtained from the trial court , namely that he had been suspected of a cruel crime committed while acting in an organised criminal gang .","On DATE that decision was lifted by ORG .","The applicant did not submit any details about the conditions of his detention under the \u201c N \u201d regime .","It appears that on DATE the applicant was released on parole .","The applicant did not complain about the length of the proceedings under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) .","The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are summarised in several judgments concerning similar cases ( see , among others , ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE ; ORG v. GPE , no . GPE , \u00a7 \u00a7 CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings , in particular the applicable provisions of the above - mentioned DATE Act , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , \u00a7 \u00a7 CARDINAL , ECHR CARDINAL-V and Ratajczyk v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and its judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97497","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2010,"docname":"PYLNEV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Ms O. Preobrazhenskaya , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by PERSON and PERSON , former Representatives of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG Deputy Prosecutor opened a criminal investigation in respect of the applicant , who was at the time a member of the regional legislature , on suspicion of tax evasion .","On DATE the applicant was questioned by the investigator as a suspect and signed an undertaking not to leave town pending the investigation . At the time he resided in ORG in LOC .","On DATE the applicant was indicted on the charge of tax evasion .","On DATE the investigator authorised the applicant 's detention pending the investigation . In particular , the investigator noted :","\u201c Having regard to the gravity of the charge and the fact that [ the applicant ] does not have permanent employment and may abscond or put pressure on witnesses and conspire with other co - accused to obstruct the course of justice , [ the investigator ] decides to ... place [ him ] in custody ... \u201d","It appears that the applicant left for GPE on DATE . He did not notify the investigator of his departure . On DATE the applicant 's name was put on the wanted persons ' list . From CARDINAL DATE the applicant underwent in - patient treatment in a cardiology centre in GPE . From DATE to DATE the applicant was in GPE , where he fell ill and received unspecified outpatient treatment . Upon his return to ORG he was arrested in his flat on DATE and placed in custody . His lawyer appealed , asking the court to release the applicant .","On DATE the ORG of LOC confirmed the lawfulness of the applicant 's arrest , noting that :","\u201c [ The applicant ] is charged with a serious offence which carries a custodial sentence of DATE . Furthermore , [ the applicant ] earlier absconded and his name was put on the wanted persons ' list \u201d .","On DATE the applicant was charged with fraud and abuse of power . On CARDINAL and DATE the charges were dropped .","On DATE the applicant was indicted on charges of securities fraud , corrupt business practices and breach of trust .","On DATE the applicant was released on an undertaking not to leave town .","On DATE the applicant consulted a psychiatric hospital in GPE and agreed to undergo in - patient treatment there . He was diagnosed with an \u201c organic disorder of mixed origin with cerebro - asthenic and psychopathic - like personality change \u201d ( \u043e\u0440\u0433\u0430\u043d\u0438\u0447\u0435\u0441\u043a\u043e\u0435 \u0440\u0430\u0441\u0441\u0442\u0440\u043e\u0439\u0441\u0442\u0432\u043e \u0441\u043c\u0435\u0448\u0430\u043d\u043d\u043e\u0433\u043e \u0433\u0435\u043d\u0435\u0437\u0430 \u0441 \u0446\u0435\u0440\u0435\u0431\u0440\u0430\u0441\u0442\u0435\u043d\u0438\u0447\u0435\u0441\u043a\u0438\u043c\u0438 , \u043f\u0441\u0438\u0445\u043e\u043f\u0430\u0442\u043e\u043f\u043e\u0434\u043e\u0431\u043d\u044b\u043c\u0438 \u0438\u0437\u043c\u0435\u043d\u0435\u043d\u0438\u044f\u043c\u0438 \u043b\u0438\u0447\u043d\u043e\u0441\u0442\u0438 ) . He was released from hospital on DATE .","From DATE to CARDINAL November CARDINAL the applicant underwent treatment in the same hospital . It appears that the applicant failed to inform the authorities of his departure from ORG and on DATE the regional prosecutor revoked the applicant 's undertaking not to leave town and ordered his detention pending investigation and trial . The prosecutor noted that the applicant , who \u201c remained impenitent \u201d , might obstruct the course of justice or abscond . On DATE the prosecutor transferred the applicant 's case file to ORG of LOC . On DATE the applicant was placed in remand prison no . IZ-CARDINAL\/CARDINAL in GPE .","On DATE the ORG of LOC scheduled the opening of the trial for DATE . The applicant was to remain in custody .","On DATE ORG dismissed an application by the applicant for release . On DATE ORG upheld the decision of CARDINAL DATE on appeal . The court noted that the applicant was charged with serious offences , which fact alone justified his pre - trial detention .","On DATE forensic psychiatrists examined the applicant and found him fit to stand trial .","On DATE ORG ordered the applicant to undergo a comprehensive psychiatric examination . The applicant was transferred to remand prison no . CARDINAL in GPE on DATE . On DATE he was placed in a forensic psychiatric hospital . On DATE the medical panel established that the applicant did not suffer from any chronic mental disorder and ruled that he was fit to stand trial . On DATE the applicant was transferred back to remand prison no . IZ-CARDINAL\/CARDINAL in GPE .","On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment .","On DATE the ORG quashed the judgment of CARDINAL DATE on appeal and referred the matter back for fresh consideration .","On DATE the applicant was released on an undertaking not to leave town . On an unspecified date he left for GPE , in LOC , where he underwent in - patient treatment for ischaemia and an organic disorder of mixed origin with cerebro - asthenic and psychopathic - like personality change in hospital no . CARDINAL from DATE to DATE .","On DATE the hospital informed ORG that the applicant 's condition did not entail an impediment to his participation in the trial .","On DATE the applicant failed to attend the hearings . According to the applicant , on DATE ORG had to adjourn the hearing owing to his poor health . In response to the applicant 's complaints about his health , the court summoned an emergency response doctor , who examined the applicant and gave him pain relief .","On DATE ORG granted a request by the applicant to adjourn the hearing until DATE to allow him to hire a new lawyer to represent him . Later that day the applicant consulted a doctor .","On DATE the applicant was examined by a medical panel which recommended that he should avoid stressful situations for DATE .","On DATE , DATE and DATE ORG held hearings . It dismissed the applicant 's request to stay the proceedings on account of his poor health condition . The court relied on the opinion of the doctors from hospital no . CARDINAL , where the applicant was undergoing in - patient treatment at the time . According to the applicant , he did not feel well after the hearings and had to seek medical assistance .","On DATE hospital no . CARDINAL discharged the applicant , noting that his health condition was satisfactory .","On DATE the applicant allegedly lost his eyesight temporarily and asked the court to adjourn the hearing . The court called for an ambulance , which took the applicant to a hospital in ORG , where he stayed until DATE . He was diagnosed with cervical osteochondrosis and hernia of intervertebral discs , myelopathy , astheno - neurotic syndrome , ischaemia , angina pectoris and hypertension and underwent relevant treatment . Then he was transferred to another hospital in GPE on DATE . The court hearings on DATE and DATE were adjourned . It appears that the applicant did not obtain ORG authorisation for his transfer to PERSON .","On DATE the ORG recommended that the applicant be examined by neurology specialists in GPE . The applicant 's medical file was forwarded to ORG no . CARDINAL affiliated to ORG .","On DATE the applicant failed to attend the hearing and the judge ordered his detention pending trial . The court noted that the applicant had violated his undertaking not to leave town . The applicant was taken into custody in hospital and transferred to a temporary detention unit in ORG on DATE . He was held there until DATE . DATE the administration called for emergency response doctors to attend to the applicant . On DATE , upon the neurologist 's recommendation , the applicant was transferred to a hospital in ORG . According to the applicant , he lost sensitivity in his legs and was constantly in pain in the spinal area . He felt giddy and had headaches and heart pain . His limbs were swollen . His speech was slow and he suffered from memory loss .","On DATE the medical professionals at ORG examined the applicant 's medical file and recommended that he receive spinal surgery \u201c shortly \u201d .","On DATE the applicant started wearing a neck brace . On DATE the policemen removed him from hospital and took him to the temporary detention unit in ORG . On DATE ORG adjourned the hearing in response to a complaint by the applicant about his medical condition . The applicant was examined by a general practitioner , who testified in court , recommending a comprehensive medical examination . On DATE ORG granted the prosecutor 's request and commissioned an expert panel to examine the applicant in order to ascertain whether his health condition permitted him to participate in the proceedings .","It appears that on DATE the applicant arranged for a meeting with a group of medical professionals from GPE . However , the judge in charge of his case refused to authorise their access to the temporary detention unit where the applicant was being held at the time .","According to the applicant 's medical file , submitted by the Government , on DATE he was transferred to the medical unit at remand prison no . IZ-CARDINAL\/CARDINAL in GPE .","On DATE the applicant was examined by a medical panel comprising specialists in neurosurgery , cardiology , neuropathology , neurology and general therapy . The experts concluded that the applicant could participate in the proceedings . They noted that he could move his feet and toes , but he refused to flex the knees , alleging that such movements caused extra pain in the spinal cord . The applicant was able to sit up and turn from side to side . They summed up their findings as follows :","\u201c [ The applicant ] suffers from cervical osteochondrosis and hernia of intervertebral disks , myelopathy , astheno - neurotic syndrome , ischaemia , angina pectoris and hypertension . The applicant 's current condition allows him to participate in the criminal proceedings . [ ORG , ORG ] and town hospital no . CARDINAL ... recommended that [ the applicant ] undergo in - patient treatment and surgery shortly . The in - patient treatment and surgery in question have been recommended on account of the deterioration of the applicant 's health . \u201d","On DATE Colonel PERSON of ORG for the Execution of Sentences asked ORG for the Execution of Sentences for the applicant to be transferred to ORG in GPE . In particular , he noted that the applicant 's condition required specialist medical intervention , which was unavailable at the remand prison .","On DATE ORG resumed the proceedings . Prior to the hearing , the applicant , who complained of a headache , heart pain , dizziness and shortness of breath , was examined by a general practitioner at the courthouse . The doctor noted that the applicant was suffering from an attack of angina pectoris and prescribed pain - relieving medication . The hearing was adjourned .","ORG subsequently held hearings on CARDINAL , DATE and DATE . Prior to each hearing , doctors examined the applicant and found him fit to participate in the proceedings . They noted , inter alia , that the applicant was lucid and responded appropriately to the questions asked .","During the trial the applicant pleaded not guilty and chose not to testify .","On DATE the ORG acquitted the applicant of breach of trust , found him guilty of securities fraud and tax evasion and sentenced him to DATE imprisonment . The court also granted civil claims brought against the applicant with regard to the securities fraud .","On DATE ORG for the Execution of Sentences authorised the applicant 's transfer to hospital no . CARDINAL , affiliated to ORG .","On DATE the applicant was examined by a neurosurgeon and a neurologist , who confirmed the earlier diagnosis and recommended that the applicant be transferred to ORG to determine the date of the surgery .","On DATE ORG upheld the applicant 's conviction in substance on appeal .","CARDINAL July CARDINAL the applicant underwent treatment at a regional hospital . On an unspecified date he was transferred to hospital no . CARDINAL in GPE . On DATE the applicant had surgery . He was discharged from hospital on DATE .","On DATE the ORG of GPE reclassified the applicant 's conviction to bring it into compliance with the amendments of LAW . The term of the sentence remained unchanged . On DATE ORG upheld the decision of CARDINAL DATE on appeal .","On DATE the police conducted a search of the applicant 's flat and seized MONEY .","The applicant lodged a complaint with ORG , arguing that the money should be transferred to the tax authorities as payment of his tax arrears . On DATE the court dismissed the applicant 's complaint . On DATE ORG upheld the judgment of CARDINAL DATE on appeal .","It appears that the money in question was admitted in evidence and deposited with the tax authorities pending criminal proceedings against the applicant .","On DATE , in response to an inquiry initiated by the applicant 's wife , ORG ruled that the money seized in his flat and deposited with the tax authorities would be used to repay the pecuniary damage caused by his crimes . On DATE ORG refused to reinstate the time - limits for the applicant 's appeal . On DATE the ORG quashed the decision of DATE and discontinued the proceedings , noting that even though the applicant 's wife was his representative , she was not authorised as a matter of law to initiate the inquiry .","On DATE the bailiff seized the money in the context of enforcement proceedings against the applicant .","On DATE the ORG of LOC dismissed the applicant 's complaint about the seizure of his money by the bailiff . On DATE ORG upheld the judgment of DATE on appeal .","The applicant submitted that from CARDINAL to DATE he was detained in an overcrowded cell at the temporary detention unit in GPE .","From DATE to CARDINAL June CARDINAL , from DATE to CARDINAL DATE and from CARDINAL August to DATE the applicant was detained in remand prison no . IZ-CARDINAL\/CARDINAL in GPE . According to the applicant , all the cells in the prison were overcrowded . The number of beds was insufficient and the inmates had to take turns to sleep .","From DATE the applicant was held in remand prison no . CARDINAL\/CARDINAL in GPE . According to the applicant , during the period in question he was detained in severely overcrowded cells . The cells were infested with cockroaches . The windows were covered with metal shutters which prevented access to fresh air . The light , which was constantly on , was not sufficient to permit reading . His relatives were not allowed to send him books or periodicals . Nor were they available from the prison library . The food was of low quality . On frequent occasions the inmates received CARDINAL meals per day . The DATE walk lasted DATE .","From DATE and from DATE the applicant was detained in the temporary detention facility in ORG . The applicant was kept in a basement in a cell without windows or the possibility of access to fresh air . He was not provided with bed sheets or toiletries . There was no toilet in the cell .","According to the applicant , he was unable to walk at the time . The guards did not have stretchers and had to carry him from the van to the courtroom holding him by the arms and legs .","From DATE to DATE the applicant was detained in the medical unit of remand prison no . IZ-CARDINAL\/CARDINAL in DATE . According to the Government , the applicant was detained in \u201c ward no . CARDINAL \u201d , which measured QUANTITY . It had CARDINAL sleeping places and QUANTITY inmates , including the applicant , were detained there .","According to the applicant , he had an individual sleeping place . He provided no further details as to the conditions of his detention during the period in question .","The relevant extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( \u201c the ORG \u201d ) read as follows :","\u201c CARDINAL . A prison 's health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists . ...","Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .","The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital .","...","A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .","...","DATE . A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .","Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .","The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-89607","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2008,"docname":"CASE OF BOCHEV v. BULGARIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["At TIME on CARDINAL DATE the applicant and an accomplice were surprised by police while in the process of trying to enter a computer equipment shop through a hole in the wall of the basement of a neighbouring building . They had previously drilled the hole over the course of DATE , and in this way had attracted the attention of the building \u2019s inhabitants .","On TIME the applicant and his accomplice were heavily armed . The applicant opened fire and shot a police officer dead . Later he detonated a hand grenade . In the ensuing exchange of gunfire his accomplice was injured and died . The special antiterrorism squad intervened TIME . The applicant gave himself up and was arrested at TIME , after negotiations with the police , a psychologist and a public prosecutor .","On DATE , CARDINAL DATE , the applicant was charged with attempted robbery committed in conspiracy with others and accompanied by murder , and placed in pretrial detention .","NORP The charges against him were later amended to include the unlawful possession of firearms , ammunition and explosives in large quantities , the murder of a police officer , and attempted murder of CARDINAL police officers committed in a manner and by means which endangered several lives and by a person who had already committed murder . The maximum penalty on conviction for those offences was life imprisonment , with or without parole .","After GPE Prosecutor \u2019s Office referred the case back to the investigator on CARDINAL occasions for additional investigation , on CARDINAL DATE the investigator finished his work on the case , recommending that the applicant be committed for trial .","On DATE ORG filed an indictment against the applicant with GPE .","On DATE the judgerapporteur to whom the case was assigned set it down for hearing on CARDINAL and DATE . As required by LAW , as in force at that time , he examined of his own motion whether the applicant \u2019s pretrial detention should be replaced with a more lenient measure , and confirmed it without giving reasons .","NORP The trial against the applicant began in DATE , but had to restart in DATE , as in DATE the judge - rapporteur was appointed as the Minister of ORG and the formation examining the case did not include a reserve judge .","NORP Over the course of DATE numerous hearings were adjourned for various reasons . On some occasions the adjournments were made necessary by the fact that the applicant had dismissed his counsel and instructed new ones , who needed time to acquaint themselves with the case file .","In a judgment of DATE the ORG found the applicant guilty of murdering a police officer , attempting to murder another police officer and unlawfully possessing firearms and explosives . Although under the relevant provisions of the DATE LAW it could have imposed a sentence of life imprisonment , it opted for a lesser penalty and sentenced the applicant to CARDINAL years\u2019 imprisonment , citing his clean criminal record , and the facts that he had a family and had not been fully discredited morally and socially .","Both the applicant and the prosecution appealed . The prosecution requested that the applicant \u2019s sentence be increased to life imprisonment .","On DATE ORG upheld ORG judgment . When considering the appropriateness of the applicant \u2019s sentence , it found that the mitigating circumstances relied on by the lower court were not sufficient to warrant a sentence less than the maximum penalty . It also found that GPE had failed to take into account certain aggravating circumstances , such as the victim \u2019s good moral character . In its judgment , the murder committed by the applicant was considerably graver than other offences of that type and the aggravating circumstances were , overall , of such weight and intensity as to rule out a penalty showing any degree of lenience . However , it went on to say , by express reference to LAW , that the criminal charges against the applicant had not been determined within a reasonable time , with all the negative repercussions which this had had on him . It found that the excessive length of the proceedings was not attributable to the applicant \u2019s conduct , although he had at times failed to organise his defence efficiently . In the court \u2019s view , the undue delay amounted in itself to a mitigating circumstance , which obviated the need to imprison the applicant for life , in line with the former ORG \u2019s and the ORG \u2019s caselaw that the excessive length of criminal proceedings could be remedied by a reduction in sentence .","The applicant and the prosecution appealed on points of law . The prosecution again argued that the penalty was far too lenient and should be increased to life imprisonment .","In a judgment of CARDINAL DATE ORG upheld ORG judgment , endorsing its reasoning .","The applicant was arrested on CARDINAL DATE and detained by an investigator \u2019s order of DATE . The reasons given by the investigator were that the applicant had committed a serious wilful offence and that there existed a genuine risk that he might abscond . On DATE the investigator \u2019s order was approved by a prosecutor .","The applicant made his first request for release on DATE , when the proceedings against him were at the preliminary investigation stage . The request was dismissed by ORG at a public hearing held on DATE . The court observed that the applicant had committed a serious wilful offence carrying a very severe penalty , and that no special circumstances warranting his release existed . This decision was not subject to appeal . Nevertheless , on DATE , when the proceedings against him had already progressed to the trial stage , the applicant appealed against it to ORG . In a decision made in private on DATE ORG , finding that the applicant \u2019s legal challenge was actually not an appeal but a fresh request for release , sent it to GPE for a ruling . On DATE the applicant appealed against this decision to ORG . On DATE ORG returned the appeal , informing the applicant that its decision was not subject to appeal on points of law . It seems that GPE did not examine the request .","On DATE the applicant appealed against the decision of the judgerapporteur to confirm his detention of his own motion following receipt of the indictment ( see paragraph CARDINAL above ) . On DATE ORG , sitting in private , declared the appeal inadmissible .","The applicant made further requests for release at several trial hearings , held on DATE and DATE , and DATE and CARDINAL DATE . They were all turned down by ORG at the respective hearings . The applicant \u2019s ensuing appeals were dismissed by ORG by decisions made in private on DATE , DATE , DATE and an unknown DATE .","In their reasoning ORG and ORG stressed , with various degrees of detail , the following points : ( i ) the applicant stood accused of several very serious offences , which in itself justified the conclusion that he was a dangerous individual who could abscond or reoffend , ( ii ) there were no fresh circumstances warranting his release , and ( iii ) no unwarranted delays had taken place in the criminal proceedings , as the case was factually and legally complex .","NORP In its decision of CARDINAL DATE ORG stated that the presumption under LAW ( CARDINAL ) of LAW , in DATE version , about the existence of a risk that the detainee might abscond or reoffend ( see paragraph CARDINAL below ) applied to the applicant \u2019s case . In CARDINAL other decisions \u2013 those of DATE and DATE that court expressed the view that the applicant \u2019s lack of a criminal record , known identity and permanent place of abode were not enough to rebut this presumption .","On CARDINAL occasions , in DATE and DATE , the applicant \u2019s appeals against the decisions of ORG were sent to the competent public prosecutors , who commented on them in writing . These comments were not communicated to the applicant and later the Sofia Court of Appeal ruled on the appeals in private , without holding a hearing , with the result that the applicant did not have the opportunity of replying to these comments .","NORP In DATE and DATE the applicant made CARDINAL further requests for release in writing . They were turned down by ORG in decisions made in private on DATE and DATE and DATE . On appeal , these decisions were upheld by ORG in decisions also made in private on DATE , CARDINAL DATE and DATE .","The applicant later lodged CARDINAL more requests for release . They were all rejected by ORG at public hearings held on DATE , CARDINAL May , DATE and DATE . The applicant \u2019s ensuing appeals were dismissed by ORG by decisions made in private on DATE , DATE , DATE and DATE . ORG declined to examine a further request for release made by the applicant during the trial hearing on DATE , on the grounds that his counsel was absent and it could not proceed with the case .","In turning down the requests for release made DATE and DATE the courts relied on the seriousness of the charges against the applicant , the lack of change in the circumstances save for the passage of time , the complexity of the case and the diligent conduct of the proceedings . In their decisions of CARDINAL DATE and DATE and DATE the ORG and ORG expressed the view that the length of the proceedings was due to the numerous adjournments caused by the applicant .","In its decisions of CARDINAL May , DATE and DATE the ORG stated that under the newly added LAW DATE Code of Criminal Procedure ( see paragraph CARDINAL below ) , when ruling on requests for release made during the trial , it was barred from examining the existence or otherwise of a reasonable suspicion against the applicant . In its view , to do so would mean to prejudge the merits of the criminal case against the applicant . It was true that under LAW ( c ) of the LAW the court had to examine whether a reasonable suspicion existed , but that applied only to rulings made at the pretrial stage . This view was endorsed by ORG in its decision of DATE . For this reason , the courts declined to delve into the applicant \u2019s arguments concerning this point .","On DATE the ORG convicted the applicant ( see paragraph CARDINAL above ) . In a separate decision it confirmed his detention .","On DATE the applicant asked ORG to annul certain provisions of Regulation no . CARDINAL governing the legal regime of pretrial detainees ( see paragraph CARDINAL below ) , which , in his view , violated , inter alia , his freedom of correspondence . In a final judgment of DATE ORG rejected his application .","The relevant provisions of LAW and the NORP courts\u2019 practice before DATE are summarised in the ORG \u2019s judgments in several similar cases ( see , among others , PERSON GPE [ ORG ] , no . ORG , \u00a7 \u00a7 CARDINAL , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , \u00a7 \u00a7 DATE , DATE ; and ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL ( extracts ) ) . On DATE the legal framework of pretrial detention was amended with the aim of ensuring the compliance of NORP law with LAW \u0442\u044a\u043b\u043a. \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043d\u0438 DATE \u0433. \u043f\u043e ORG CARDINAL\/CARDINAL \u0433. , ORG \u043d\u0430 ORG ) . The amendments and the resulting practice of the NORP courts are summarised in the ORG \u2019s judgments in the cases of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) , and GPE v. GPE ( no . MONEY , \u00a7 \u00a7 DATE , DATE ) .","On DATE the DATE Code was superseded by DATE Code of Criminal Procedure , which reproduced all the provisions brought in with the DATE reform .","By Article CARDINAL \u00a7 CARDINAL of the DATE Code , during the trial the GPE requests for release were examined by the trial court ( the same is currently provided for by LAW ) . It followed from LAW CARDINAL and CARDINAL of the DATE Code that these requests could be examined in private or at an oral hearing ( under LAW , these requests must be examined at an oral hearing ) . The law did not \u2013 and still does not \u2013 require the court to decide within a particular timelimit .","The trial court \u2019s decision was subject to appeal to the higher court ( LAW of LAW ; superseded by LAW ) . The higher court could examine the appeal in private or , if it considered it necessary , at an oral hearing ( LAW , reproduced in LAW ) .","A new Article CARDINALa was added to LAW in DATE . By paragraph CARDINAL of that Article ( presently reproduced in LAW ) , a fresh request for release at the same level of court could be made only if there had been a change in circumstances . LAW in fine of LAW ( presently reproduced in LAW in fine of the DATE Code ) provided that the trial court had to refrain from examining the existence or otherwise of a reasonable suspicion against the detainee .","Section CARDINAL of the DATE ORG to Citizens Act ( \u201c the ORG \u201d \u2013 ORG \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 , \u043f\u0440\u0438\u0447\u0438\u043d\u0435\u043d\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 DATE this was the original title ; on DATE it was changed to the ORG and ORG , ORG \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0438 \u043e\u0431\u0449\u0438\u043d\u0438\u0442\u0435 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 ) , provides as follows :","\u201c The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :","NORP pretrial detention , including when imposed as a preventive measure , when it has been set aside for lack of lawful grounds ;","NORP criminal charges , if the person concerned has been acquitted , or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence ... \u201d","In a binding interpretative decision ( \u0442\u044a\u043b\u043a. \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043d\u0430 ORG \u043f\u043e PERSON \u2116 CARDINAL\/CARDINAL \u0433. , ORG ) made on DATE the Plenary Meeting of ORG of ORG resolved a number of contentious issues relating to the construction of various provisions of the ORG . In line with the ORG earlier case - law , in point CARDINAL of the decision it held that pretrial detention was unlawful when it did not comply with the requirements of LAW and that the ORG was liable under section CARDINAL(CARDINAL ) of the ORG when such detention had already been set aside as unlawful .","Individuals seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the ORG have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; \u0440\u0435\u0448. \u2116 DATE \u0433. \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. , \u043f\u043e PERSON \u2116 DATE \u0433. \u043d\u0430 GPE , GPE \u0433.\u043e. ) .","Articles CARDINAL , CARDINAL \u00a7 DATE LAW read , as relevant :","\u201c Everyone has the right to meet in confidence with the person who defends him . The confidentiality of their communication shall be inviolable . \u201d","\u201c The private life of citizens shall be inviolable . Everyone has the right to protection against unlawful interference in his private or family life and against encroachment on his honour , dignity and reputation . \u201d","\u201c CARDINAL . NORP The freedom and secrecy of correspondence and other communications shall be inviolable .","NORP This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences . \u201d","Section CARDINAL(CARDINAL ) of the DATE LAW ( ORG \u0437\u0430 \u0430\u0434\u0432\u043e\u043a\u0430\u0442\u0443\u0440\u0430\u0442\u0430 ) , presently superseded by section ORG ) of the CARDINAL Bar Act , provided that the correspondence between lawyers and their clients was inviolable , could not be subject to interception and could not be used as evidence in court .","DATE the legal regime of pretrial detainees , including their correspondence , was the subject of QUANTITY issued by the Minister of Justice : Regulation no . CARDINAL of DATE , superseded by Regulation no . CARDINAL of DATE .","Under section PERSON ) of Regulation no . CARDINAL , detainees had the right to send and receive an unlimited number of letters . Section CARDINAL(CARDINAL ) of the Regulation provided that letters ( except those to and from the GPE counsel ) , which contained advice about the criminal proceedings against them , were not allowed to be passed on , but instead had to be made available to the competent prosecutor or court .","Section GPE ) of Regulation no . CARDINAL provided that \u201c the correspondence of the accused and of the indicted [ was ] subject to inspection by the [ detention facilities ] administration \u201d .","In a decision of DATE ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e PERSON \u2116 DATE \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 , \u043e\u0431\u043d. , GPE , \u0431\u0440. CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. ) ORG annulled this provision , holding that it was contrary to LAW , DATE and DATE of the DATE LAW see paragraph CARDINAL above ) , LAW and section CARDINAL(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL above ) , as it provided for systematic monitoring of the entirety of the GPE correspondence .","In DATE the CARDINAL Execution of Punishments Act ( ORG \u0437\u0430 \u0438\u0437\u043f\u044a\u043b\u043d\u0435\u043d\u0438\u0435 \u043d\u0430 \u043d\u0430\u043a\u0430\u0437\u0430\u043d\u0438\u044f\u0442\u0430 ) , which is the statute regulating , along with other matters , the manner of serving custodial sentences , was amended and now incorporates , in the newly added sections DATE , special rules relating to pretrial detainees . As a result , Regulation no . CARDINAL ceased to apply ; it was however expressly repealed only on DATE , when the Minister of ORG amended the Regulations relating to the application of the LAW ( see paragraph DATE below ) .","The new section CARDINALd(CARDINAL ) of the DATE Act provided that \u201c [ CARDINAL correspondence of the accused and of the indicted [ was ] subject to inspection by the [ prison ] administration \u201d .","In a decision of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e PERSON \u2116 DATE \u0433. , \u043e\u0431\u043d. , GPE , \u0431\u0440. CARDINAL \u043e\u0442 DATE \u0433. ) ORG , acting pursuant to a request by ORG , declared this provision unconstitutional . After analysing in detail the relevant constitutional and LAW provisions and making reference to , among others , the cases of ORG v. the GPE ( judgment of DATE , Series A no . CARDINAL ) , PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE ) and ORG v. GPE ( judgment of DATE , Reports CARDINALVII ) , it held that a blanket authorisation to inspect the correspondence of all detainees without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles CARDINAL \u00a7 CARDINAL and CARDINAL of the DATE LAW see paragraph CARDINAL above ) .","Following the Constitutional Court \u2019s decision , on DATE the Regulations for application of the CARDINAL Execution of Punishments Act were amended . Under the new section CARDINAL(CARDINAL ) , pretrial detainees are entitled to unlimited correspondence which is not subject to monitoring . Envelopes have to be sealed and opened in the presence of members of staff , in a manner allowing those members to make sure that they do not contain money or other prohibited items ( section CARDINAL ) of the Regulations ) ."],"violated_articles":["5","8"],"violated_paragraphs":["5-3","5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57524","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1967,"docname":"CASE \"RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM\" v. BELGIUM","importance":2,"conclusion":"Preliminary objection rejected (incompatibility)","judges":"","text":["The object of the ORG \u2019s request is to submit the case to the ORG , so that the ORG may decide whether or not certain provisions of the NORP linguistic legislation relating to education are in conformity with the requirements of ORG CARDINAL and CARDINAL ( article CARDINAL , article DATE ) of the Convention and Article CARDINAL of LAW ( PCARDINAL - CARDINAL ) .","The Commission \u2019s provisional submissions on the merits of the case are set out in paragraph CARDINAL of its first memorial .","The Applicants , who are parents of families of NORP nationality , applied to the ORG both on their own behalf and on behalf of their children DATE , of whom there are CARDINAL . Pointing out that they are LANGUAGE - speaking or that they express themselves most frequently in LANGUAGE , they want their children to be educated in that language .","GPE , GPE , GPE , GPE , PERSON and PERSON , where the signatories of CARDINAL of the CARDINAL Applications ( Nos . GPE , GPE , DATE , and CARDINAL ) live , belong to the region considered by law as NORP - speaking , whereas ORG ) has since DATE formed part of a separate administrative district with a \" special status \" . In all of these districts ( \" communes \" ) part of the population - in some cases a large part - is LANGUAGE - speaking .","Though the CARDINAL Applications differ on a number of points , they are similar in many respects . For the purposes of this judgment it is sufficient to note that in substance they complain that ORG :","- does not provide any LANGUAGE education in the municipalities where the Applicants live or , in the case of PERSON , that the provision made for such education is , in their opinion , inadequate ;","- withholds grants from any institutions in the said municipalities which may fail to comply with the linguistic provisions of the legislation for schools ;","- refuses to homologate leaving certificates issued by such institutions ;","- does not allow the Applicants\u2019 children to attend the NORP classes which exist in certain places ;","- thereby obliges the Applicants either to enrol their children in local schools , a solution which they consider contrary to their aspirations , or to send them to school in the \" LOC district \" , where the language of instruction is NORP or NORP according to the child \u2019s mother - tongue or usual language or in the \" LANGUAGE - speaking region \" ( PERSON area ) . Such \" scholastic emigration \" is said to entail serious risks and hardships .","In the main the Applicants complain that they and their children have suffered violation of certain Articles of the Convention and the LAW as a result of being subjected to various provisions of LAW of DATE \" on language regulations in primary and intermediate education \" , LAW of DATE \" on the conferring of academic degrees \" , the Acts of DATE and DATE , LAW of DATE \" on language regulations in education \" and the LAW of DATE \" on the use of languages in administrative matters \" . The Acts of DATE were repealed by LAW DATE , but were still in force when the PERSON , GPE , GPE , GPE and GPE Applicants brought their cases before the Commission , and those Applicants still challenge these acts while at the same time attacking the present legislation .","Before the Commission , the Applicants complained of violations of ORG CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article DATE ) of the Convention and Article CARDINAL of the LAW ( PCARDINAL - CARDINAL ) .","ORG , for its part , pleaded that the legislation in dispute fully respects or respected those ORG , and it therefore asked the ORG to declare the Applications inadmissible as being manifestly ill - founded ( LAW article CARDINAL - CARDINAL ) .","The Commission did in fact , for that reason , reject the complaints which the Applicants ( with the exception of those of PERSON ) based on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) ; on the other hand , it considered the CARDINAL Applications admissible in so far as they alleged violations of Articles CARDINAL and CARDINAL ( article CARDINAL , article DATE ) of the Convention and Article CARDINAL of the LAW ( PCARDINAL - CARDINAL ) . The decisions on this point were given on various dates DATE .","The Commission having decided to join the CARDINAL Applications , a single ORG ascertained the facts by examining the Applications together with the parties and tried to arrange a friendly settlement between the parties ( Articles CARDINAL and CARDINAL ) ( article DATE , article CARDINAL ) .","This attempt failed , and ORG therefore drew up a report as required under LAW article CARDINAL ) . The report was adopted on DATE and transmitted to ORG on DATE . That DATE the Commission brought the case before the ORG under LAW ( a ) ( article CARDINAL-a ) of the Convention .","Summarising the opinion expressed in its report , the ORG recalled in paragraph CARDINAL of its first memorial that it took the view :","\" - by CARDINAL votes to CARDINAL , that the legislation complained of was not incompatible with the first sentence of LAW ( PCARDINAL - CARDINAL ) , considered in isolation ;","- unanimously , that the legislation was not incompatible with the second sentence of the said article ( PCARDINAL - CARDINAL ) , considered in isolation or in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the Convention ;","- by CARDINAL votes to QUANTITY , that the legislation was not incompatible , in the case of the Applicants , with LAW article CARDINAL) of the LAW , considered in isolation or in conjunction with LAW article DATE ) ;","- by CARDINAL votes to CARDINAL , that the general system of education in the areas which are unilingual by law was not incompatible with the first sentence of LAW , considered in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the Convention ;","- by CARDINAL votes to CARDINAL , that the same was true of the \" special status \" conferred by LAW of CARDINALnd DATE on CARDINAL bilingual communes , of which PERSON , on the periphery of GPE , is CARDINAL ;","- by CARDINAL votes to CARDINAL , that the Acts of DATE were incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the LAW , in so far as they result in the total withdrawal of subsidies from provincial , commune and private schools providing , in the form of non - subsidised classes and in addition to instruction given in the language prescribed by the language legislation , complete or partial education in another language ;","- unanimously , that the conditions on which children whose parents live outside LOC may be enrolled in schools in that district ( LAW of DATE ) were not , in the case of the Applicants , incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the Convention ;","- that the Acts of DATE were incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the LAW , in so far as they prevent certain children , solely on the basis of their GPE place of residence , from attending LANGUAGE - language schools at Louvain ( CARDINAL votes to CARDINAL ) and in the above - mentioned CARDINAL communes on the periphery of GPE ( CARDINAL votes to CARDINAL ) ;","- by CARDINAL votes to CARDINAL , that the legislation complained of was also incompatible with the first sentence of LAW , read in conjunction with LAW article CARDINAL+PCARDINAL - CARDINAL ) of the LAW , in so far as it has resulted , since DATE , in a refusal to homologate certificates relating to secondary schooling not in accordance with the language requirements . \"","Altogether , of the CARDINAL members of the Commission concerned in the adoption of the report , CARDINAL found no breach by ORG of its obligations , while the majority considered that there had been a breach on CARDINAL counts , but none on the others . The size and composition of the majorities on the various questions varied appreciably ; moreover , the majorities on some questions embodied CARDINAL point of view . Therefore the Commission \u2019s report also sets out a number of individual opinions - some concurring , some dissenting .","In its first memorial the Commission pointed out that its decision to refer the matter to the ORG had been unanimous . Among its reasons for taking this step it particularly stressed the legal importance and complexity of the case and its human and social aspects .","During the written proceedings the following submissions were made with regard to the preliminary objection raised by ORG :","- by the Government in its first memorial :","\" CARDINAL . LAW secure the enjoyment of the rights and freedoms expressly mentioned in LAW ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention and Articles CARDINAL of the LAW ( PCARDINAL - CARDINAL , PCARDINAL - CARDINAL , PCARDINAL - CARDINAL ) .","The idea of \" national minority \" within the meaning of LAW ) of the Convention may benefit the members of a specified social group where there is a violation of a right of freedom guaranteed in LAW .","However , in these cases , the Convention affords no such protection , since","( a ) the right to education in one \u2019s own language is not included among the rights and freedoms enshrined in the LAW and the LAW ; a fortiori there is no guarantee of the right to subsidies for education in one \u2019s own language or to admission to all occupations on the strength of such education ;","( b ) as a subsidiary argument , the \" Applicants \" do not belong to a \" national minority \" within the meaning of LAW ) of the Convention ;","( c ) it follows that the ORG is ratione materiae not competent to examine the merits of the dispute submitted to it .","DATE it please the Court","( a ) to admit ORG preliminary objection and dismiss the legal action brought against the Government ;","( b ) alternatively , to join the preliminary objection to the merits . \"","- by the ORG in its second memorial","\" The ORG invites the ORG to reject the objection raised by ORG \" ;","- by the Government in its second memorial","\" ORG confirms the submissions stated by it at the end of its first memorial and reserves the right to supplement and amend them in subsequent proceedings \" .","At the hearing on DATE , the following submissions were made :","- by the Commission :","\" The Commission ... requests the ORG to reject the preliminary objection \" .","- by ORG :","\" The Government \u2019s preliminary objection should be accepted and the ORG complaints rejected . Purely subsidiary , the ORG requests that its preliminary objection be joined to the merits . It reserves the right to supplement and amend its submissions in the course of these proceedings \" .","At the hearing on DATE the Commission made the following submissions :","\u2018 ORG upholds its request that the ORG now reject the preliminary objection raised by ORG .","\" With regard to the ORG \u2019s alternative submission that the objection be joined to the merits we do not wish to express an opinion . We leave this point to the wisdom of ORG \" .","At the hearing on DATE , ORG asked the ORG by way of final submissions :","- to accept the preliminary objection","and","- alternatively , to join it to the merits .","The Commission for its part stated , before the hearing closed , that it upheld its submission \" in full \" ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114487","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2012,"docname":"CASE OF MARGU\u0160 v. CROATIA","importance":3,"conclusion":"No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person);No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Conviction)","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and is currently serving a prison term in LOC .","On DATE ORG lodged a criminal complaint against the applicant and CARDINAL other persons with ORG , alleging that the applicant , a member of ORG , had killed several civilians .","On DATE the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG Zakon o oprostu od krivi\u010dnog progona i postupka za krivi\u010dna djela po\u010dinjena u oru\u017eanim sukobima i u ratu protiv PERSON ) was enacted .","On DATE ORG indicted the applicant before ORG on charges of murder , inflicting grievous bodily harm , causing a risk to life and assets , and theft . The relevant part of the indictment read :","\u201c the first accused , PERSON","on DATE at TIME ... fired CARDINAL times at GPE with an automatic gun ... as a result of which PERSON died ;","...","at the same time and place as under ( CARDINAL ) ... fired several times at FAC with an automatic gun ... as a result of which GPE died ;","...","on DATE took ORG to the \u201c NORP \u201d forest between PERSON and NORP ... and fired at him twice with an automatic gun ... as a result of which GPE died ;","...","at the same place and time as under ( CARDINAL ) fired at GPE . PERSON with an automatic gun ... as a result of which she died ;","...","on CARDINAL DATE at TIME threw an explosive device into business LOC in LOC ... causing material damage ;","...","on DATE at TIME in PERSON placed an explosive device in a house ... causing material damage ... ;","...","on DATE at TIME in \u010cepin ... fired at GPE , causing him slight bodily injury and then ... kicked GPE ... causing him grievous bodily injury ... and also kicked GPE ... causing him further slight bodily injuries ... ;","...","DATE and DATE in \u010cepin ... stole several guns and bullets ... ;","... \u201d","He was further charged with appropriating several tractors and other machines belonging to other persons .","On DATE the NORP Deputy Military Prosecutor dropped the charges under counts ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of the indictment as well as the charges of appropriating goods belonging to others . A new count was added , by which the applicant was charged with having fired , on DATE at TIME , at a child , ORG . PERSON , causing him grievous bodily injury .","On DATE the General Amnesty Act was enacted . It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in GPE DATE and DATE , save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes , including the crime of genocide ( see paragraph CARDINAL below ) .","On DATE ORG , sitting as a panel presided over by judge PERSON , terminated the proceedings pursuant to LAW . The relevant part of this decision reads :","\u201c ORG ... on DATE has decided as follows : the criminal proceedings against the accused PERSON on CARDINAL charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the GPE State Attorney \u2019s Office ... on DATE are to be concluded under sections CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW .","...","The indictment of the Osijek Military State Attorney \u2019s Office no . Kt-CARDINAL\/CARDINAL of DATE charged PERSON with CARDINAL offences of aggravated murder under LAW of LAW ; one offence of aggravated murder under LAW ) of LAW ; CARDINAL criminal offences of causing a risk to life and assets ... under LAW of LAW ; CARDINAL criminal offence of inflicting grievous bodily harm under LAW ; one criminal offence of theft of weapons or other fighting equipment under LAW CARDINAL of LAW ; and CARDINAL criminal offence of aggravated theft under LAW of LAW ...","The above indictment was significantly altered at a hearing held on DATE before ORG , when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and legal classification of some of the offences .","Thus , the accused PERSON was indicted for CARDINAL offences of murder under LAW , one criminal offence of inflicting grievous bodily harm under LAW and one criminal offence of causing a risk to life and assets ... under LAW ...","After the military courts had been abolished , the case file was forwarded to the GPE State Attorney \u2019s ORG , which took over the prosecution on the same charges and asked that the proceedings be continued before ORG . The latter forwarded the case file to a CARDINAL - judge panel in the context of application of the General Amnesty Act .","After considering the case file , this panel has concluded that the conditions under section CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW have been met and that the accused is not excluded from amnesty .","The above - mentioned LAW provides for a general amnesty in respect of criminal offences committed during the aggression , armed rebellion or armed conflict .... in GPE . The general amnesty concerns criminal offences committed between CARDINAL DATE and DATE .","The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes , and certain criminal offences listed in section CARDINAL of LAW . It also excludes the perpetrators of other criminal offences under LAW ... which were not committed during the aggression , armed rebellion or armed conflict and which are not connected with the aggression , armed rebellion and armed conflict in GPE .","The accused , PERSON , is indicted for CARDINAL criminal offences committed in PERSON on DATE and CARDINAL criminal offence committed in \u010cepin on DATE .","The first CARDINAL of these offences concern the most difficult period and the time of the most serious attacks on GPE and LOC immediately after the fall of ORG , and the time of the most severe battles for GPE . In those battles , the accused distinguished himself as a combatant , showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of FAC of the CARDINALth Brigade of ORG , who was his superior officer at that time .","In the critical period concerning the first CARDINAL criminal offences , the accused was acting in his capacity as a member of ORG ; in that most difficult period , acting as commander of a unit , he tried to prevent the fall of a settlement into enemy hands , when there was an immediate danger of this happening . The fourth criminal offence was committed on DATE , when the accused was acting in his capacity as an on - duty member of ORG in \u010cepin and was dressed in military camouflage uniform and using military weapons . The accused had joined ORG in DATE , after the well - known events and the beginning of the armed rebellion in the village of ORG , close to GPE .","The actions of the accused , in view of the time and place of the events at issue , were closely connected with the aggression , armed rebellion and armed conflict in GPE , and were carried out during the period referred to in the General LAW .","...","Against this background , this court finds that all the statutory conditions for application of LAW have been met ... \u201d","On an unspecified date the ORG Attorney lodged a request for the protection of legality ( zahtjev za za\u0161titu zakonitosti ) with ORG , asking it to establish that section CARDINAL(CARDINAL ) of the General Amnesty Act had been violated .","On DATE ORG , when deciding upon the above request , established that the above decision of ORG of DATE violated section CARDINAL(CARDINAL ) of the General Amnesty Act . The relevant part of that decision reads :","\u201c ...","Section CARDINAL(CARDINAL ) of the General Amnesty Act provides for a general amnesty from criminal prosecution and proceedings for the perpetrators of criminal offences committed in connection with the aggression , armed rebellion or armed conflict ... in GPE . Under paragraph CARDINAL of the same section the amnesty concerns criminal offences committed DATE and DATE . ...","For the correct interpretation of these provisions DATE apart from the general condition that the criminal offence in question had to have been committed in the period DATE and DATE ( which has been met in the present case ) \u2013 there must exist a direct and significant connection between the criminal offence and the aggression , armed rebellion or armed conflict . This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it . Therefore , the above provisions have to be interpreted in a sensible manner , with the necessary caution , so that the amnesty does not become a contradiction of itself and call into question the purpose for which the LAW in question was enacted . Therefore , the expression \u2018 in connection with the aggression , armed rebellion or armed ORG used in LAW , which does not specifically define the nature of that connection , has to be interpreted to mean that the connection must be direct and significant .","...","Part of the factual description of the criminal offences with which the accused PERSON is charged in counts CARDINAL , CARDINAL and CARDINAL of the indictment , which suggests some connection with the aggression against GPE or armed rebellion and armed conflicts in GPE , relates to the arrival of the victims of these offences PERSON , GPE and the minor ORG . DATE in PERSON , together with their neighbours , after they had all fled the village of NORP on account of the attack by the so - called \u2018 Y[ugoslav ] GPE ] ORG . It should be stressed that it is not in dispute that the accused PERSON was a member of ORG . However , these circumstances are not such as to amount to a direct link with the aggression , armed rebellion or armed conflicts in GPE which is required for the General Amnesty Act to apply .","The factual description of the criminal offences under count CARDINAL of the indictment states that the accused committed these acts as a member of ORG in \u010cepin , after his tour of duty had terminated . This characteristic in itself does not represent a significant link between the criminal offences and the war because , were this to be the case , the amnesty would encompass all criminal offences committed DATE and DATE by members of ORG or the enemy units ( save for those specifically listed in section CARDINAL ) of LAW ) ; this was certainly not the intention of the legislature .","Finally , the accused \u2019s war career , described in detail in the impugned decision , can not be a criterion for application of the General Amnesty Act ...","The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression , armed rebellion or armed conflict in GPE , or that they were committed in connection with them .","... \u201d","On DATE the GPE State Attorney \u2019s Office indicted the applicant on charges of war crimes against the civilian population . The proceedings were conducted by a CARDINAL - judge panel of ORG , including judge PERSON During the entire proceedings the applicant was represented by a lawyer .","A concluding hearing was held on DATE in the presence of , inter alia , the applicant and his defence lawyer . The applicant was removed from the courtroom during the closing arguments of the parties . The applicant \u2019s lawyer remained in the courtroom and presented his closing arguments . The relevant part of the written record of that hearing reads as follows :","\u201c The president of the panel notes that the accused ORG interrupted the GPE Deputy ORG Attorney ( \u201c the Deputy ORG Attorney \u201d ) in his closing arguments and was warned by the panel to calm down ; the second time he interrupted the Deputy State Attorney he was warned orally .","After the president of the panel orally warned the accused ORG , the latter continued to comment on the closing arguments of the Deputy ORG Attorney . The panel therefore decides , and the president of the panel orders , that the accused ORG be removed from the courtroom until the pronouncement of the judgment .","... \u201d","The applicant was subsequently removed from the courtroom and the Deputy ORG Attorney , the lawyers for the victims , the defence lawyers and CARDINAL of the accused gave their closing arguments .","NORP The pronouncement of the judgment was scheduled for DATE and the hearing was concluded . The applicant was present at the pronouncement of the judgment . He was found guilty as charged and sentenced to CARDINAL years\u2019 imprisonment . The relevant part of the judgment reads as follows :","\u201c ...","The accused PERSON ...","and","the accused ORG ...","are guilty [ in that ]","in the period DATE in PERSON and its surroundings , contrary to LAW in Time of War of CARDINAL DATE and LAW and MONEY ) and LAW to LAW of CARDINAL DATE Relative to ORG ) of DATE , while defending that territory from armed attacks by the local rebel NORP population and the so - called ORG in their joint attack on the constitutional legal order and territorial integrity of GPE , PERSON , in his capacity as the commander of ORG in LAW of the CARDINALth brigade of the NORP army , and the accused PERSON , as a member of ORG under the command of PERSON , with the intention of killing NORP civilians [ acted as follows ] ;","the accused PERSON","( a ) on DATE at TIME , recognised PERSON and GPE who were standing ... in front of ORG in GPE and were fleeing their village because of the attacks by ORG , ... fired at them with an automatic gun ... which caused PERSON a gunshot wound to the head ... and neck as a result of which PERSON immediately died , while PERSON was wounded and fell to the ground . The accused then drove away and soon afterwards came back , and , seeing that PERSON was still alive and accompanied by his DATE son ORG . PERSON and ... his wife PERSON , again fired the automatic gun at them , and thus shot PERSON twice in the head ... twice in the arm ... as a result of which GPE soon died while Sl . PERSON was shot in the leg ... which amounted to grievous bodily harm ;","( b ) in the period DATE in PERSON , arrested GPE and GPE . ORG , threatening them with firearms , appropriated their FAC vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and , together with the members of his Unit ... beat and insulted them , asked them about their alleged hostile activity and possession of a radio station , and during that time prevented other members of the ORG from helping them ... after which he took them out of PERSON to a forest ... where they were shot with several bullets from firearms ... as a result of which GPE ... and GPE . PERSON died ;","( c ) on DATE at TIME at the coach terminal in PERSON , arrested PERSON and ORG and their relative Lj . PERSON and drove them to a house ... tied their hands behind their backs and , together with the late T.B. , interrogated them about their alleged hostile activity and in the evening , while they were still tied up , drove them out of \u010cepin ... where he shot them ... as a result of which they died ;","the accused PERSON and ORG [ acting ] together","( d ) on DATE at TIME in PERSON , on seeing PERSON driving his Golf vehicle ... stopped him at the request of PERSON ... ... and drove him to a field ... where ... PERSON ordered ORG to shoot PERSON , [ an order ] which ORG obeyed , shooting PERSON once ... after which PERSON shot him several times with an automatic gun ... as a result of which PERSON ... died and PERSON appropriated his vehicle .","... \u201d","The applicant \u2019s conviction was upheld by ORG on DATE and his sentence was increased to DATE imprisonment . The relevant part of the judgment by ORG reads as follows :","\u201c Under LAW ( CARDINAL ) of LAW ( ORG ) a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a decision of a lower court or if he participated in adopting the impugned decision .","It is true that judge GPE participated in the proceedings in which the impugned judgment was adopted . He was the president of a panel of ORG which adopted the decision ... of DATE by which the proceedings against the accused PERSON were terminated under LAW ) and CARDINAL ) of LAW ...","Even though both sets of proceedings were instituted against the same accused , it was not the same case . The judge in question participated in CARDINAL different cases before ORG against the same accused . In the case in which the present appeal has been lodged , judge PERSON did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy .","...","The accused incorrectly argued that the first - instance court had acted contrary to LAW and LAW ORG when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments . Thus , he claimed , he had been prevented from giving his closing arguments . Furthermore , he had not been informed about the conduct of the hearing in his absence , and the decision to remove him from the courtroom had not been adopted by the trial panel .","Contrary to the allegations of the accused , the written record of the hearing held on DATE shows that the accused PERSON interrupted the [ GPE Deputy ORG Attorney in his closing arguments and was twice warned by the president of the trial panel . Since he continued with the same behaviour , the trial panel decided to remove him from the courtroom ...","Such action by the trial court is in conformity with LAW ORG . The accused PERSON started to disturb order in the courtroom during the closing arguments of the [ GPE Deputy ] ORG Attorney and persisted in doing so , after which he was removed from the courtroom by a decision of the trial panel . He was again present in the courtroom when judgment was pronounced on DATE .","Since the trial court complied fully with LAW of the ORG , the accused \u2019s appeal is unfounded . In the case in issue there has been no violation of the defence rights , and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment .","...","The accused PERSON further argues ... that the impugned judgment violated the \u2018 ne bis in idem\u2019 principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ...","...","It is true that criminal proceedings were conducted before ORG under no . K-CARDINAL\/CARDINAL against the accused PERSON in respect of , inter alia , CARDINAL criminal offences ... of murder ... committed against GPE , GPE , GPE and GPE . V , as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final decision of ORG no . Kv MONEY ( K-CARDINAL\/CARDINAL ) of DATE on the basis of ORG ...","Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before ORG under no . K CARDINAL\/CARDINAL , namely the deaths of GPE , GPE , GPE and GPE . ORG and the grievous bodily injury of ORG . PERSON , are also part of the factual background [ to the criminal offences assessed ] in the proceedings in which the impugned judgment has been adopted , the offences [ tried in the CARDINAL sets of the criminal proceedings at issue ] are not the same .","Comparison between the factual background [ to the criminal offences assessed ] in both sets of proceedings shows that they are not identical . The factual background [ to the offences referred to ] in the impugned judgment contains a further criminal element , significantly wider in scope than the one forming the basis for the proceedings conducted before ORG under no . K-CARDINAL\/CARDINAL . [ In the present case ] the accused PERSON is charged with violation of the rules of LAW to ORG in Time of War of CARDINAL DATE and of LAW to LAW of DATE Relative to ORG ) of DATE , in that , in the period CARDINAL , while defending that territory from armed attacks by the local rebel NORP population and the so - called ORG in their joint attack on the constitutional legal order and territorial integrity of GPE , and in violation of the rules of international law , he killed and tortured civilians , treated them in an inhuman manner , unlawfully arrested them , ordered the killing of a civilian and robbed the assets of the civilian population . The above acts constitute a criminal offence against the values protected by international law , namely a war crime against the civilian population under LAW .","Since the factual background to the criminal offence at issue , and its legal classification , differ from those which were the subject of the earlier proceedings , such that the scope of the charges against the accused PERSON is significantly wider and different from the previous case ( case - file no . K-CARDINAL\/CARDINAL ) , the matter is not res judicata ... \u201d","A subsequent constitutional complaint by the applicant was dismissed by ORG on DATE . ORG endorsed the views of ORG .","The relevant provisions of LAW ( Zakon o kaznenom postupku \u2013 Official Gazette nos . PERCENT , CARDINAL\/CARDINAL , CARDINAL , CARDINAL and CARDINAL , ORG and DATE ) provide as follows :","\u201c ( CARDINAL ) Where the accused ... disturbs order at a hearing or does not comply with the orders of the presiding judge , the latter shall warn the accused ... The panel may order that the accused be removed from the courtroom ...","( CARDINAL ) The panel may order that the accused be removed from the courtroom for a limited time . Where the accused again disturbs the order [ he or she may be removed from the courtroom ] until the end of the presentation of evidence . Before the closure of the presentation of evidence the presiding judge shall summon the accused and inform him about the conduct of the trial . If the accused continues to disturb order and insults the dignity of the court , the panel may again order that he be removed from the courtroom . In that case the trial shall be concluded in the accused \u2019s absence and the presiding judge or another member of the panel shall inform him or her about the judgment adopted , in the presence of a typist .","... \u201d","\u201c ( CARDINAL ) A grave breach of criminal procedure shall be found to exist where","...","a hearing has been held without a person whose presence is obligatory under the law ...","... \u201d","The relevant part of the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG of DATE ( ORG no . CARDINAL , Zakon o oprostu od krivi\u010dnog progona i postupka za krivi\u010dna djela po\u010dinjena u oru\u017eanim sukobima i u ratu protiv PERSON ) reads as follows :","\u201c Criminal prosecution of perpetrators of criminal offences [ committed ] during the armed conflicts , the war against GPE or in connection with these conflicts or war , committed DATE when this LAW comes into force , shall be discontinued . In respect of these offences no criminal prosecution or criminal proceedings shall be instituted . Where criminal proceedings have been instituted , a court shall terminate them of its own motion . Where a person concerned by the amnesty ... has been detained , he or she shall be released . \u201d","\u201c No amnesty under LAW shall be granted to perpetrators of the criminal offences in respect of which GPE is obliged to prosecute under international law . \u201d","\u201c A state attorney may lodge an appeal within TIME from the service of a decision under section CARDINAL ... of this Act , where she or he considers that the decision contravenes section QUANTITY . \u201d","NORP The relevant part of the amendments to LAW of DATE reads as follows :","\u201c In section CARDINAL , paragraph CARDINAL of the Act on ORG from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during ORG no . CARDINAL ) the words \u2018 DATE when this Act comes into force\u2019 are to be replaced by the words \u2018 CARDINAL DATE . \u201d","The relevant part of LAW of DATE ( ORG no . CARDINAL\/CARDINAL , PERSON o op\u0107em oprostu ) reads as follows :","\u201c This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression , armed rebellion or armed conflicts and in connection with the aggression , armed rebellion or armed conflicts in GPE .","No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph CARDINAL of this section .","ORG from criminal prosecution and proceedings shall apply to offences committed DATE and DATE . \u201d","\u201c No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under LAW .","Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion .","Where a person granted amnesty under paragraph CARDINAL of this section has been detained , he or she shall be released . \u201d","\u201c No amnesty under LAW shall be granted to perpetrators of the gravest breaches of humanitarian law , which have the character of war crimes , namely , the criminal offence of genocide under LAW ( ORG no . CARDINAL\/CARDINAL , consolidated text , ORG . CARDINAL , DATE , CARDINAL and ORG ) ; war crimes against the civilian population under LAW ; war crimes against the wounded and sick under LAW ; war crimes against prisoners of war under LAW ; organising groups [ with the purpose of committing ] or aiding and abetting genocide and war crimes under LAW ; unlawful killing and wounding of the enemy under LAW ; unlawful taking of possessions from the dead or wounded on the battleground under LAW ; use of unlawful means of combat under LAW ; offences against negotiators under LAW ; cruel treatment of the wounded , sick and prisoners of war under LAW ; unjustified delay in repatriation of prisoners of war under LAW ; destruction of cultural and historical heritage under LAW ; inciting war of aggression under LAW ; abuse of international symbols under LAW ; racial and other discrimination under LAW ; establishing slavery and transferring slaves under LAW ; international terrorism under LAW ; putting at risk persons under international protection under LAW ; taking hostages under LAW ; and the criminal offence of terrorism under the provisions of international law .","No amnesty shall be granted to perpetrators of other criminal offences under LAW of GPE ( Official Gazette no . CARDINAL\/CARDINAL , consolidated text , nos . CARDINAL , DATE , CARDINAL and ORG ) and LAW ( ORG no . CARDINAL\/CARDINAL , consolidated text , nos . CARDINAL , ORG and ORG ) which were not committed during the aggression , armed rebellion or armed conflicts and are not connected with the aggression , armed rebellion or armed conflicts in GPE .","... \u201d","\u201c A state attorney may lodge an appeal against a court decision under LAW where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney . \u201d","The relevant part of common LAW of DATE reads :","\u201c In the case of armed conflict not of an international character occurring in the territory of CARDINAL of the High Contracting Parties , each ORG to the conflict shall be bound to apply , as a minimum , the following provisions :","( CARDINAL ) Persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed hors de combat by sickness , wounds , detention , or any other cause , shall in all circumstances be treated humanely , without any adverse distinction founded on race , colour , religion or faith , sex , birth or wealth , or any other similar criteria .","To this end , the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above - mentioned persons","( a ) violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;","( b ) taking of hostages ;","( c ) outrages upon personal dignity , in particular humiliating and degrading treatment ;","( d ) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court , affording all the judicial guarantees which are recognized as indispensable by civilized peoples .","... \u201d","NORP The relevant parts of FAC in the Field . GPE , CARDINAL DATE hereafter \u201c the LAW \u201d ) read :","\u201c The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing , or ordering to be committed , any of the grave breaches of the present Convention defined in the following Article .","Each High Contracting Party shall be under the obligation to search for persons alleged to have committed , or to have ordered to be committed , such grave breaches , and shall bring such persons , regardless of their nationality , before its own courts . It may also , if it prefers , and in accordance with the provisions of its own legislation , hand such persons over for trial to another High Contracting Party concerned , provided such High Contracting ORG has made out a prima facie case .","... \u201d","\u201c Grave breaches to which the preceding Article relates shall be those involving any of the following acts , if committed against persons or property protected by the Convention : wilful killing , torture or inhuman treatment , including biological experiments , wilfully causing great suffering or serious injury to body or health , and extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly . \u201d","Articles DATE and CARDINAL of the Convention ( II ) for the Amelioration of the Condition of Wounded , Sick and Shipwrecked Members of ORG , CARDINAL DATE hereafter \u201c the LAW \u201d ) contain the same text as Articles DATE of LAW .","Articles CARDINAL and CARDINAL of the Convention ( III ) relative to ORG ( GPE , CARDINAL DATE hereafter \u201c FAC \u201d ) contain the same text as ORG DATE and CARDINAL of LAW .","Articles CARDINAL and CARDINAL of the Convention ( IV ) relative to ORG in Time of War ( GPE , CARDINAL DATE \u2013 hereafter \u201c the LAW \u201d ) contain the same text as Articles DATE of LAW .","The relevant part of LAW ( II ) to LAW , relating to ORG , DATE ) reads :","\u201c CARDINAL . All persons who do not take a direct part or who have ceased to take part in hostilities , whether or not their liberty has been restricted , are entitled to respect for their person , honour and convictions and religious practices . They shall in all circumstances be treated humanely , without any adverse distinction . It is prohibited to order that there shall be no survivors .","Without prejudice to the generality of the foregoing , the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever :","( a ) violence to the life , health and physical or mental well - being of persons , in particular murder as well as cruel treatment such as torture , mutilation or any form of corporal punishment ; ... \u201d","\u201c CARDINAL . The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations . To give effect to this protection , the following rules shall be observed in all circumstances .","The civilian population as such , as well as individual civilians , shall not be the object of attack . Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited .","NORP shall enjoy the protection afforded by this part , unless and for such time as they take a direct part in hostilities . \u201d","Mandated by the GPE convened at the CARDINALth International Conference of the Red Cross and Red Crescent , ORG ( ORG ) presented in DATE a Study on LAW ( J .- M. Henckaerts and PERSON ( eds . ) , LAW , GPE , ORG , DATE ) . The Study contains a list of customary rules of international humanitarian law . Rule CARDINAL which refers to non - international armed conflicts reads :","\u201c At the end of hostilities , the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non - international armed conflict , or those deprived of their liberty for reasons related to the armed conflict , with the exception of persons suspected of , accused of or sentenced for war crimes . \u201d","\u201c ORG :","...","Urges the Government of GPE to eliminate ambiguities in implementation of LAW , and to implement it fairly and objectively in accordance with international standards , in particular by concluding all investigations of crimes covered by the amnesty and undertaking an immediate and comprehensive review with ORG and local NORP participation of all charges outstanding against individuals for serious violations of international humanitarian law which are not covered by the amnesty in order to end proceedings against all individuals against whom there is insufficient evidence ;","... \u201d","The relevant text of the ORG on human rights in the world and ORG human rights policy for DATE reads :","\u201c ORG","...","Believes that the problem of impunity ... can take the form of amnesty , immunity , extraordinary jurisdiction and constrains democracy by effectively condoning human rights infringements and distressing victims ;","Affirms that there should be no question of impunity for those responsible for war crimes in the former GPE ... \u201d","ORG noted in DATE in its General Comment No . CARDINAL on LAW that some States had granted amnesty in respect of acts of torture . It went on to state that \u201c [ a]mnesties are generally incompatible with the duty of GPE to investigate such acts ; to guarantee freedom from such acts within their jurisdiction ; and to ensure that they do not occur in the future . States may not deprive individuals of the right to an effective remedy , including compensation and such full rehabilitation as may be possible \u201d .","\u201c CARDINAL . Where the investigations referred to in paragraph CARDINAL reveal violations of certain LAW Parties must ensure that those responsible are brought to justice . As with failure to investigate , failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the LAW . These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law , such as torture and similar cruel , inhuman and degrading treatment ( article CARDINAL ) , summary and arbitrary killing ( article CARDINAL ) and enforced disappearance ( articles CARDINAL and CARDINAL and , frequently , CARDINAL ) . Indeed , the problem of impunity for these violations , a matter of sustained concern by ORG , may well be an important contributing element in the recurrence of the violations . When committed as part of a widespread or systematic attack on a civilian population , these violations of the LAW are crimes against humanity ( see Rome Statute of ORG , article CARDINAL ) .","Accordingly , where public officials or ORG agents have committed violations of the LAW rights referred to in this paragraph , the GPE Parties concerned may not relieve perpetrators from personal responsibility , as has occurred with certain amnesties ( see General Comment DATE ) ) and prior legal immunities and indemnities . Furthermore , no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility ;","... \u201d","\u201c ORG :","...","Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators , including their accomplices , of violations of international human rights and humanitarian law , recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges GPE to take action in accordance with their obligations under international law ;","... \u201d","\u201c ORG :","...","Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes , urges GPE to take action in accordance with their obligations under international law and welcomes the lifting , waiving , or nullification of amnesties and other immunities .","... \u201d","\u201c ORG :","...","Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes , urges GPE to take action in accordance with their obligations under international law and welcomes the lifting , waiving , or nullification of amnesties and other immunities , and recognizes as well the Secretary - General \u2019s conclusion that ORG - endorsed peace agreements can never promise amnesties for genocide , crimes against humanity , war crimes , or gross violations of human rights .","... \u201d","In DATE , in the conclusions and recommendations of his fifth report on the question of the human rights of all persons subjected to any form of detention or imprisonment , in particular , torture and other cruel , inhuman or degrading treatment or punishment , the Special Rapporteur of ORG Human Rights stated with respect to LAW for an ORG :","The relevant part of the PERSON case ( judgment of DATE ) reads :","\u201c CARDINAL . The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter - state and individual levels . At the inter - state level , it serves to internationally de - legitimise any legislative , administrative or judicial act authorising torture . It would be senseless to argue , on the one hand , that on account of the jus cogens value of the prohibition against torture , treaties or customary rules providing for torture would be null and void ab initio , and then be unmindful of a ORG say , taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law . If such a situation were to arise , the national measures , violating the general principle and any relevant treaty provision , would produce the legal effects discussed above and in addition would not be accorded international legal recognition . Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful ; or the victim could bring a civil suit for damage in a foreign court , which would therefore be asked inter alia to disregard the legal value of the national authorising act . What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture , whether in a foreign ORG , or in their own ORG under a subsequent regime . In short , in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture , individuals remain bound to comply with that principle . As ORG at GPE put it : \u201c individuals have international duties which transcend the national obligations of obedience imposed by the individual ORG . \u201d","In DATE , in a report on a case with respect to the GPE massacres in GPE in DATE during which CARDINAL persons were allegedly killed by members of the NORP armed forces with the participation of members of ORG , and which had led to a petition before ORG , the latter held that :","\u201c ... the application of [ GPE DATE Law on ORG to Achieve National Reconciliation ] constitutes a clear violation of the obligation of ORG to investigate and punish the violations of the rights of the GPE victims , and to provide compensation for damages resulting from the violations ... The present amnesty law , as applied in these cases , by foreclosing the possibility of judicial relief in cases of murder , inhumane treatment and absence of judicial guarantees , denies the fundamental nature of the most basic human rights . It eliminates perhaps the single most effective means of enforcing such rights , the trial and punishment of offenders . \u201d","In DATE , in a report on the situation of human rights in GPE , ORG stated , with regard to GPE General Amnesty Law for Consolidation of Peace , as follows :","\u201c ... regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations , the very sweeping General PERSON [ for ORG ] passed by GPE ORG constitutes a violation of the international obligations it undertook when it ratified LAW , because it makes possible a \u2018 reciprocal GPE without first acknowledging responsibility ... because it applies to crimes against humanity , and because it eliminates any possibility of obtaining adequate pecuniary compensation , primarily for victims . \u201d","In DATE , in a report of a case concerning GPE DATE General Amnesty Law for Consolidation of Peace , ORG on Human Rights stated :","\u201c CARDINAL . The Commission should emphasize that [ this law ] was applied to serious human rights violations in GPE DATE , and DATE , including those examined and established by ORG . In particular , its effect was extended , among other things , to crimes such as summary executions , torture , and the forced disappearance of persons . Some of these crimes are considered of such gravity as to have justified the adoption of special conventions on the subject and the inclusion of specific measures for preventing impunity in their regard , including universal jurisdiction and inapplicability of the statute of limitations ...","...","ORG also notes that LAW [ this law ] was apparently applied to all violations of common LAW [ of the DATE LAW ] and of [ the DATE LAW ] , committed by agents of the ORG during the armed conflict which took place in GPE .","...","... in approving and enforcing the General Amnesty Law , the NORP State violated the right to judicial guarantees enshrined in DATE ) of the [ DATE ORG ] , to the detriment of the surviving victims of torture and of the relatives of ... who were prevented from obtaining redress in the civil courts ; all of this in relation to LAW ...","...","... in promulgating and enforcing the Amnesty Law , GPE has violated the right to judicial protection enshrined in LAW DATE ORG ] , to the detriment of the surviving victims ... \u201d","In its conclusions , ORG on Human Rights stated that GPE \u201c has also violated , with respect to the same persons , common LAW of DATE and LAW ] \u201d . Moreover , in order to safeguard the rights of the victims , it recommended that GPE should , \u201c if need be , ... annul that law ex - tunc \u201d .","In its judgment in the GPE case in DATE involving the question of the legality of NORP amnesty laws , ORG stated :","\u201c CARDINAL . ORG considers that all amnesty provisions , provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible , because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture , extrajudicial , summary or arbitrary execution and forced disappearance , all of them prohibited because they violate non - derogable rights recognized by international human rights law .","ORG , in accordance with the arguments put forward by ORG and not contested by the ORG , considers that the amnesty laws adopted by GPE prevented the GPE next of kin and the surviving victims in this case from being heard by a judge ... they violated the right to judicial protection ... they prevented the investigation , capture , prosecution and conviction of those responsible for the events that occurred in GPE , thus failing to comply with LAW DATE ORG ] , and they obstructed clarification of the facts of this case . Finally , the adoption of self - amnesty laws that are incompatible with the [ DATE ORG ] meant that GPE failed to comply with the obligation to adapt internal legislation that is embodied in LAW [ DATE ORG ] .","The ORG considers that it should be emphasized that , in the light of the general obligations established in ORG ) and CARDINAL of the [ DATE ORG ] , GPE Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse , in the terms of LAW of the [ DATE ORG ] . Consequently , GPE Parties to the [ DATE ORG ] which adopt laws that have the opposite effect , such as self - amnesty laws , violate Articles CARDINAL and DATE , in relation to ORG ) and CARDINAL of the [ DATE ORG ] . Self - amnesty laws lead to the defenselessness of victims and perpetuate impunity ; therefore , they are manifestly incompatible with the aims and spirit of the Convention . This type of law precludes the identification of the individuals who are responsible for human rights violations , because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation .","Owing to the manifest incompatibility of self - amnesty laws and LAW , the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible , nor can they have the same or a similar impact with regard to other cases that have occurred in GPE , where the rights established in the [ DATE ORG ] have been violated . \u201d","In his concurring opinion , Judge PERSON added :","\u201c CARDINAL . The international responsibility of the ORG for violations of internationally recognized human rights , \u2013 including violations which have taken place by means of the adoption and application of laws of self - amnesty , DATE and the individual penal responsibility of agents perpetrators of grave violations of human rights and of International Humanitarian Law , are CARDINAL faces of the same coin , in the fight against atrocities , impunity , and injustice . It was necessary to wait DATE to come to this conclusion , which , if it is possible DATE , is also due , DATE may I insist on a point which is very dear to me , \u2013 to the awakening of the universal juridical conscience , as the material source par excellence of GPE itself . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6","P7"],"non_violated_paragraphs":["6-1","6-3","P7-4"],"non_violated_bulletpoints":["6-3-c"],"violated":false}
{"itemid":"001-78062","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2006,"docname":"CASE OF VAIVADA v. LITHUANIA","importance":4,"conclusion":"Violation of Art. 5-1;Violation of Art. 5-4","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The second applicant is the first applicant 's uncle .","The second applicant , who then had a criminal record of CARDINAL previous convictions , was arrested on DATE and questioned in the context of criminal proceedings for theft . He was released on DATE .","The first applicant , then having a criminal record of CARDINAL convictions , was arrested on DATE and questioned in the context of another set of criminal proceedings for theft . He was released on DATE .","On DATE the second applicant was arrested in the context of criminal proceedings for murder of ORG , a third person . On DATE ORG ordered his detention on remand for DATE on the ground that he might abscond from the investigation and commit fresh crimes .","On DATE the second applicant was charged with murder .","On DATE the first applicant was arrested in the context of criminal proceedings for attempted robbery .","On DATE ORG ordered the first applicant 's detention on remand for DATE because of the danger of his absconding , committing fresh crimes and obstructing the investigation .","On DATE the second applicant was also questioned in the attempted robbery case .","On DATE a prosecutor charged the first applicant with attempted robbery .","On DATE ORG ordered compulsory psychiatric examination of the second applicant .","On DATE ORG rejected the first applicant 's appeal against the detention order .","On DATE the CARDINAL criminal cases for murder and attempted robbery were joined .","On DATE ORG extended the term of the second applicant 's remand in custody until DATE on the same grounds .","On DATE ORG extended the first applicant 's remand in custody until DATE on the same grounds .","On DATE CARDINAL more criminal cases , concerning unlawful possession of firearms and robbery , were joined to the criminal proceedings against the applicants .","On DATE ORG extended the term of the second applicant 's detention until DATE on the ground that he may abscond from the investigation , commit fresh crimes and influence witnesses .","On DATE the court prolonged the first applicant 's remand in custody for DATE on the same grounds .","On DATE ORG extended the term of both applicants ' detention on remand until DATE because of the danger of their absconding and influencing the investigation .","On DATE , DATE and DATE a number of new alleged episodes from other criminal cases , namely in relation to damaging property of another , assault , unlawful possession of weapons , causing bodily harm , aggravated murder , attempted robbery and theft were joined in the criminal proceedings against the applicants .","On DATE the investigation was concluded , and the applicants and their defense counsel had access to the case - file .","On DATE a prosecutor rejected the applicants ' request to discontinue the proceedings .","On DATE the bill of indictment was confirmed , and the case was sent to ORG .","On DATE ORG committed the applicants for trial . It further stated in the decision that their remand measures should remain unchanged pending the adoption of a judgment in the case .","On DATE ORG returned the case to the prosecutors for further investigative measures to be carried out . Thereafter the courts extended the term applicant 's detention on various occasions .","A new bill of indictment was confirmed on DATE .","On DATE the case was transmitted to ORG .","On DATE the court returned the case for further investigation to be carried out in view of the prosecutors ' request to bring a fresh charge against the first applicant . Subsequently , the charges against the applicants were again reformulated .","On DATE a new bill of indictment was confirmed , and the case was sent to ORG .","On DATE the applicants were convicted : a ) the first applicant on CARDINAL count of attempted robbery ; b ) the second applicant on CARDINAL counts of murder , attempted robbery , causing bodily harm , and unlawful possession of CARDINAL types of weapons .","On DATE ORG amended the first applicant 's conviction , but his sentence of imprisonment remained unchanged . ORG also reclassified the second applicant 's actions to aggravated murder , sentencing him to DATE imprisonment .","On DATE ORG quashed the decision of ORG insofar as it concerned the second applicant 's conviction for aggravated murder , reinstating his sentence of DATE and DATE imprisonment as it had been imposed by the first instance court .","On an unspecified date the second applicant completed the sentence , and was released from prison .","The provisions of LAW ( ORG proceso kodeksas ) applicable at the material time ( repealed by entry into force of LAW DATE ) :","Article ORG ( in force from DATE ) reads :","\u201c Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged .","...","The grounds for detention on remand shall be the reasoned suspicion that the accused will :","( CARDINAL ) abscond from the investigation and trial ;","( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;","( CARDINAL ) commit new offences ... whilst suspected of having committed crimes provided in ORG ... [ CARDINAL ] [ cheating , ] CARDINAL [ embezzlement ] of LAW ... \u201d","Article CARDINAL - CARDINAL ( in force from DATE to DATE ) reads :","\u201c ... [ T]he arrested person shall be brought before a judge within not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure . ...","After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . \u201d","Pursuant to the amended LAW in force from DATE until DATE ) , the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person , unless the judge decides otherwise . The amended provision also permits the court to extend the detention on remand before its expiry .","Article CARDINAL \u00a7 CARDINAL ( in force from DATE to DATE ) reads :","\u201c For the purpose of extending the term of detention on remand [ at the stage of pre - trail investigation a judge ] must convene a hearing to which defence counsel and the prosecutor and , if necessary , the detained person shall be called . \u201d","The LAW in force since DATE makes obligatory the attendance of the detainee at the remand hearings .","Article CARDINAL - CARDINAL ( in force from DATE to DATE ) reads :","\u201c An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... . With a view to examining the appeal , there may be convened a hearing , to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .","The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .","A further appeal shall be determined when examining the extension of the term of the detention on remand . \u201d","Pursuant to the amended LAW in force from DATE to CARDINAL DATE ) , an appeal may be submitted to a higher court , which would hold a hearing against a decision ordering or extending the term of detention both at the stage of pre - trial investigation and trial , in the presence of the detainee and his counsel , or only his counsel .","Article CARDINAL \u00a7 CARDINAL ( in force until DATE ) reads :","\u201c The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . \u201d","Since DATE this period is no longer relevant for remand decisions .","Article CARDINAL \u00a7 CARDINAL ( in force until DATE ) reads :","\u201c Decisions of courts ... ordering , varying or revoking a remand measure ... can not be the subject of appeal ... \u201d","Pursuant to the general provision of LAW , a first instance decision was not effective pending the time - limit for an appeal against that decision or during the appeal proceedings . Only those decisions against which no appeal was possible , including remand decisions under the former LAW , became effective and were executed on DATE when they were taken . Pursuant to the amended LAW ( version in force from LAW DATE until DATE ) , all decisions of detention on remand become effective and are executed on the date when they are taken , regardless of the fact that an appeal is possible against any such decision under the amended LAW as in force from DATE to CARDINAL DATE , see above ) .","Other relevant provisions of LAW which was in force until DATE :","LAW ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to \u201c submit requests \u201d and to \u201c appeal against acts and decisions of an interrogator , investigator , prosecutor and court . \u201d","Article CARDINAL \u00a7 CARDINAL reads :","\u201c A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ...","( CARDINAL ) whether the remand measure has been selected appropriately . \u201d","LAW reads :","\u201c After having decided , that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ...","( CARDINAL ) of the remand measure in respect of the accused ... . \u201d","Article CARDINAL \u00a7 CARDINAL reads :","\u201c The defendant has the right to ... CARDINAL ) submit requests ; ...","( CARDINAL ) appeal against the judgment and decisions of a court . \u201d","Article CARDINAL reads :","\u201c In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112194","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2012,"docname":"CASE OF WALLISHAUSER v. AUSTRIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","The applicant had been an employee of the embassy of GPE in GPE since DATE . From DATE onwards she had a contract of indefinite duration and worked as a photographer at the embassy . Following an accident in DATE the competent authority issued a decision stating that she qualified for protection under GPE ( Invalideneinstellungsgesetz ) . Following a further accident , classified as work - related , the embassy dismissed her in DATE .","Her dismissal was declared void by ORG ( Arbeits- und ORG ) on the ground that it required the prior agreement of the competent authority under ORG . The court dismissed the argument submitted by GPE that it lacked jurisdiction on account of the United States\u2019 immunity . It found that , while foreign GPE enjoyed immunity with regard to acta iure imperii , they came within the jurisdiction of the domestic courts with regard to acta iure gestionis . The conclusion and performance of an employment contract fell within the latter category . ORG ( Oberster Gerichthof ) upheld that judgment on DATE , noting that GPE had not maintained the objection of ORG immunity in the further course of the proceedings .","As a result of the above proceedings , the applicant continued to have a valid employment contract with GPE embassy in GPE . However , the latter refused to make use of her services . Instead , on DATE , they applied to ORG requesting retroactive approval of the applicant \u2019s dismissal or , alternatively , agreement to a future dismissal . ORG refused to grant retroactive approval for the applicant \u2019s dismissal of DATE but gave its approval for a future dismissal . The competent ORG upheld that decision . On DATE ORG , ruling on a complaint by the applicant , set aside the decision to grant approval for the applicant \u2019s future dismissal , finding that the authorities had failed to establish relevant facts and had not duly weighed the parties\u2019 interests . The case was referred back to the ORG . On DATE GPE withdrew its application , stating that it had always maintained that the application of ORG to employees of the embassy interfered with the country \u2019s sovereignty .","Meanwhile , the applicant brought proceedings against GPE requesting payment of her salary . In a first set of proceedings , concerning salary payments up to DATE , GPE unsuccessfully raised an objection of jurisdictional immunity . Subsequently , GPE paid the applicant salary arrears of CARDINAL NORP schillings ( CARDINAL ( ORG ) ) . On the occasion of the payment , the lawyer who had represented GPE in the proceedings informed the applicant by a letter dated DATE that the payment did not imply any acceptance of the NORP courts\u2019 judgments and that GPE considered her employment contract to be terminated and would , if she raised any further claims , \u201c make use of its diplomatic rights and immunities \u201d .","Further proceedings relating to the payment of salary from DATE to DATE led to a final default judgment by ORG . However , GPE did not pay the amount awarded to the applicant .","The applicant also unsuccessfully brought proceedings against GPE claiming reimbursement of the social security contributions which she had been ordered to pay by the NORP authorities and a part of which the employer was , under her employment contract , obliged to refund . In those proceedings GPE authorities refused to serve the summons to attend the hearing . The NORP courts dismissed the applicant \u2019s request for a judgment in default . Their position was upheld by ORG judgment of DATE ( see below , paragraph CARDINAL ) .","On DATE the applicant brought an action against GPE before ORG , claiming salary payments from DATE . The court scheduled a first hearing for DATE .","An attempt to serve the applicant \u2019s action and the summons to the hearing on GPE through ORG , under section CARDINAL(CARDINAL ) of LAW ) , failed . According to the file a staff member of the NORP embassy in GPE handed these documents over to a staff member of ORG . However , by letter of DATE ORG informed ORG , which in turn informed ORG , that GPE authorities had refused to serve the summons and had returned the documents at issue to the NORP embassy in GPE . The letter was accompanied by a note from ORG informing ORG that GPE wished to assert its immunity in any case brought by the applicant . In a letter of CARDINAL DATE ORG also informed the applicant accordingly .","On DATE ORG dismissed the applicant \u2019s request for a judgment in default , noting that it had been impossible to summon the defendant . An appeal by the applicant to ORG ( Oberlandesgericht ) was unsuccessful .","ORG dismissed her appeal on points of law on DATE . Referring to its judgment of DATE in a parallel case brought by the applicant ( see paragraph CARDINAL below ) , it noted that the summons had not been duly served on the defendant , namely ORG . Consequently , the conditions for giving a judgment in default were not fulfilled .","By a decision of DATE ORG held that the applicant \u2019s action and the summons to the hearing had not been served on account of the manifest refusal of GPE to comply with the request for service . It followed that further attempts to summon the defendant did not have any prospects of success .","Subsequently , the applicant requested that the summons be served by means of publication under LAW ( Zivilproze\u00dfordnung ) or , alternatively , that it be served on a court - appointed representative ( Curator ) LAW CARDINAL of the Code .","By decision of DATE ORG appointed a lawyer , PERSON , to represent GPE . It noted that the foreign authorities had refused to serve the summonses in any of the proceedings brought by the applicant . In the court \u2019s view GPE had wrongly relied on its alleged immunity .","On DATE ORG , following an appeal by Dr. PERSON , quashed that decision . The relevant part of its decision reads as follows :","\u201c In acting on a request for service , the ORG to which the request is made is exercising sovereign powers . This applies even if the court documents in question are addressed to that ORG and the authority responsible for acting on the request for assistance ( in this instance ORG ) refuses to forward them to the authority empowered to represent the ORG in private - law proceedings ( in this instance ORG ) . This is not a case of refusal to accept service ( \u00a7 CARDINAL of LAW ) but rather a case of refusal to comply with a request for legal assistance . Such refusal is a sovereign right of the foreign State , against which a remedy can be sought only through diplomatic channels ...","ORG endorsed this legal stance ( CARDINAL CARDINAL\/CARDINAL t ) , stressing that , as international law currently stands , compliance or refusal to comply with a request for legal assistance is to be regarded as a sovereign act , irrespective of the subject - matter of the claim . The nature of the act is the defining factor . It is beyond doubt that the service of documents in court proceedings falls within the scope of so - called acta iure imperii and not acta iure gesionis , as a private individual can not perform an act of this nature . Although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States ( which might make it sufficient for the action to be served on the country \u2019s foreign ministry ) , no such agreement has to date been concluded , with the result that the issue remains unregulated by any treaty between GPE and GPE .","In a commentary on this decision , which had been published in DATE , DATE , Hintersteininger observed , inter alia , that , while the restrictive theory of service of process applied by ORG might be appropriate for the purposes of avoiding disagreements between GPE , it was not a requirement under international law . The author concluded that section CARDINAL of the Service Act \u2013 at least as currently applied to judicial proceedings instituted in GPE against foreign States \u2013 amounted to a \u201c self - imposed shackle \u201d as a result of which the standard of protection of ORG legal interests was subordinated to international - law considerations . Unless and until the NORP courts saw fit to apply a different interpretation of the provision in question \u2013 the fact that ORG , in its DATE ruling , continued to apply its case - law from DATE indicated that this was unlikely DATE there was an urgent need for the legislature to enact amending legislation in order to provide a practical solution to the problem of service of process .","Referring to ORG international - law argument , the appellant raises the possibility of transmitting the action and an explanation of the legal circumstances , together with a translation into the country \u2019s official language , to ORG through diplomatic channels . In this case the defendant ORG would have no justification for returning the copy of the action at will ; in the event of a refusal to accept service , it should be deemed to have received the request . This would make effective service possible and would remove the need to appoint a representative .","The objection to this line of argument is that such a procedure \u2013 which from a general international - law perspective is possible \u2013 is incompatible with the applicable legal provisions in GPE . As clarified in CARDINAL ObA CARDINAL\/CARDINAL t , the action has to be served on a competent body within ORG , which is the authority representing GPE in the present employment - related proceedings . It is not sufficient for the document to have somehow reached another authority which appears to be responsible for forwarding the request for service . Accordingly , it is incorrect to speak of a refusal to accept service if the document was never transmitted to the competent authority . In this connection ORG stressed that , conversely , it would not be sufficient , in order to institute legal proceedings , for an action against GPE to be received by ORG if , for whatever reason , it was not forwarded to the Attorney - ORG as the competent authority representing the ORG in such matters . The first - instance court already acknowledged that a further request for service would have little prospect of success in view of the earlier comments of the GPE authorities .","Nevertheless , the ( definitive ) refusal of ORG to forward court documents concerning the appellant to ORG does not justify the appointment of a representative for the defendant in accordance with LAW . As the appellate court explained in detail in its decision CARDINAL Ra CARDINAL\/CARDINAL t , cited above , service of process on a foreign ORG is ( also ) based on section CARDINAL(CARDINAL ) of the Service Act . Hence , for the purpose of performing it , recourse is to be had in any event to ORG . On the basis of this provision , which takes precedence , service via any means other than the diplomatic channels to which it refers \u2013 for instance , on a court - appointed representative DATE is ruled out . In view of the principle whereby a remedy against a refusal to comply with a request for legal assistance , which flows from the sovereign power of the foreign State , can be sought only through diplomatic channels ( see FAC , PERSON CARDINAL\/CARDINAL ; for a critical perspective , see ORG , PERSON zivilrechtlicher FAC ausl\u00e4ndische ORG , ORG DATE , CARDINAL et seq . [ DATE ] ) , the impugned decision lacks any legal basis . \u201d","On DATE ORG dismissed an appeal on points of law by the applicant . It started by referring to its decision of DATE ( see paragraph CARDINAL below ) in a previous case brought by the applicant against GPE . It followed from that decision that the action brought by the applicant had to be served through diplomatic channels . It held that LAW , although it concerned the service of summonses abroad , was not applicable in a case like the present one in which the person or legal entity to be summoned relied on their immunity . The applicant \u2019s interpretation of the provision in question would undermine the concept of immunity .","Only section CARDINAL(CARDINAL ) of LAW was applicable . The applicant did not contest the fact that foreign GPE came within the scope of that provision as they enjoyed \u201c privileges and immunities \u201d under international law . In that context ORG went on to state as follows :","\u201c No agreement exists between GPE and the defendant concerning service of process from the perspective of ORG immunity from jurisdiction . In the absence of such agreement the generally recognised rules of international law ( LAW ) , together with section IX of the Introductory Act to LAW ( ORG ) and the principles developed in this connection by the case - law and by legal commentators , must apply . On that basis it is unanimously agreed that foreign GPE enjoy immunity in the exercise of their sovereign powers and are to that extent exempt from the jurisdiction of the domestic courts ( see , among other authorities , ORG CARDINAL\/CARDINAL ; PERSON , JBl DATE , CARDINAL ; JBl DATE , CARDINAL ; He\u00df , JBl DATE , CARDINAL ; ORG , CARDINAL [ ORG ] ; ORG , ORG DATE , CARDINAL ; ORG , GPE DATE , CARDINAL ; DRdA CARDINAL [ GPE ] ; PERSON , ORG des V\u00f6lkerrechts Bd CARDINAL para . CARDINAL , CARDINAL ; ORG , PERSON paras . CARDINAL et seq . ; PERSON , loc . cit , PERSON para . CARDINAL , CARDINAL et seq . , CARDINAL et seq . ; PERSON in GPE , ZPO\u00b2 PERSON para . CARDINAL et seq . ) . The service of process abroad , as a sovereign act , amounts \u2013 in the absence of an agreement between the GPE concerned governing the relevant procedure \u2013 to interference with the sovereign rights of the foreign ORG in question . For that reason it is a requirement in such cases to have recourse to ORG , which maintains close contact with the milieu concerned and is competent to take account of the relevant international - law considerations ( ORG BlgNR XV.GP CARDINAL ) , as the appellant correctly points out . However , contrary to her assertion , exclusive recourse to ORG is not merely recommended , but is required by statute ( the mandatory \u201c shall \u201d in section PERSON ) of LAW and section CARDINAL ) of the Service Act ) . The service of documents by any other means would be in breach of the law ( ORG , op . cit . , LAW , footnote CARDINAL ) .","Although PERSON , in her commentary on CARDINAL ObA CARDINAL\/CARDINAL t ( JBl DATE , CARDINAL ) concludes that the \u201c restrictive theory of service of process \u201d is appropriate for the purpose of avoiding international disagreements , she nevertheless calls on the legislature to amend LAW , as she sees evidence of a \u201c self - imposed shackling \u201d at least in the way in which that provision is applied . The legislature has not taken any action to date . It should further be observed that the strict approach to diplomatic immunity can be traced back to LAW , according to which the violation of immunity renders the proceedings in question null and void , in a manner which can not be remedied even by the parties ( except by a waiver of immunity ) ( \u00a7 QUANTITY ; GPE , op . cit . , \u00a7 PERSON para . CARDINAL , CARDINAL et seq . ; PERSON , op . cit . , \u00a7 CARDINAL JN para . CARDINAL , CARDINAL ) .","Contrary to the appellant \u2019s assertion , her request for the action to be served on the defendant by publication or by the appointment of a representative does not fall in the present case within the \u201c classic scenario \u201d under LAW , but is governed by the exception thereto and undermines the defendant \u2019s claim to diplomatic immunity . Accordingly it is not possible , precisely in this case , to proceed on the basis of that provision . On the contrary \u2013 in so far as the proceedings against the defendant in GPE are concerned \u2013 exclusive recourse must be had to diplomatic channels , as reasoned by ORG in case CARDINAL ObA CARDINAL\/CARDINAL t . \u201d","ORG decision was served on the applicant \u2019s counsel on DATE .","In DATE the applicant reached pensionable age . She gave the GPE embassy in GPE notice of her intention to terminate her employment contract and applied to the competent ORG for an old - age pension from DATE .","Subsequently , the applicant extended her claim in the above - mentioned proceedings to salary payments from DATE to DATE . She requested again that the defendant be summoned to a hearing . In that context she referred to ORG and their Property ( see paragraphs CARDINAL below ) , and argued that , according to LAW , transmission of the documents to ORG through diplomatic channels would be sufficient to effect service . The summons was handed over to a staff member of ORG but was again returned to the NORP embassy in GPE with the remark that GPE wished to assert its immunity in any case brought by the applicant .","On DATE ORG upheld the first - instance court \u2019s decision refusing to give a default judgment . Referring to ORG case - law , it held that the refusal to serve a summons was an act of sovereign power . It noted , inter alia , that the LAW relied on by the applicant did not apply to proceedings which had been initiated before its entry into force and added that there were no rules of customary international law to indicate that GPE could not rely on immunity in the context of the service of a summons . No further appeal on points of law lay against this decision .","Section CARDINAL of the Service Act ( Zustellgesetz ) deals with the service of official documents abroad and the service of official documents on foreign nationals and foreign GPE or international organisations enjoying privileges and immunities under international law . It provides as follows :","\u201c CARDINAL . Service of process abroad shall be effected in accordance with existing international agreements or as provided for by the laws or other legal provisions of the ORG in which service is to be effected or by international custom , if necessary with the cooperation of the NORP diplomatic authorities .","Service of process on foreign nationals or international organisations which enjoy international privileges and immunities shall be effected through the intermediary of ORG , irrespective of where their place of residence or headquarters is located . \u201d","The relevant provisions of LAW ( Zivilproze\u00dfordnung ) read as follows :","\u201c In the case of persons on whom process can only be served by publication because their address is unknown , the court shall appoint a representative ( Article CARDINAL ) , on application or of its own motion , if the persons concerned would have to perform a step in the proceedings as a result of being served with the documents , and in particular if the documents to be served contain a summons . \u201d","\u201c CARDINAL . In the case of service on persons outside the country who do not fall into the categories of recipients referred to in CARDINAL ) and ( CARDINAL ) of LAW , LAW , in agreement with ORG , may order service to be effected by post , using the system of advice of receipt customarily used for international postal deliveries , to countries in which service in accordance with section CARDINAL(CARDINAL ) of LAW is not possible or gives rise to difficulties .","If no confirmation is received within a reasonable time that process has been served on an individual outside the country , the applicant party may request , depending on the circumstances , that service be effected by publication ( section CARDINAL of LAW ) or by the appointment of a representative under LAW . This shall also apply in cases where an unsuccessful attempt has been made to serve process abroad or where the request for service has no prospect of success owing to a manifest refusal by the authorities of the foreign State to comply with the request for legal assistance . \u201d","In a judgment of DATE ( CARDINAL CARDINAL\/CARDINAL ) in a related case concerning claims for reimbursement of social security contributions brought by the applicant against GPE ( see paragraph CARDINAL above ) , ORG held as follows :","\u201c The appellate court was correct in taking the view that , as international law currently stands , the decision to comply with or refuse a request for legal assistance is a sovereign act , irrespective of the subject - matter of the request . The nature of the act is the defining factor . It is beyond doubt that the service of documents in court proceedings falls within the scope of acta iure imperii and not acta iure gesionis , as a private individual can not perform an act of this nature ( PERSON , FAC et seq . , esp . paras . CARDINAL ; PERSON , ORG , para . CARDINAL ) .","The criticism of the current legal situation raised by the appellant , relying on ORG ( ORG DATE , CARDINAL et seq . [ esp . CARDINAL et seq . ] , does not alter the fact that , although negotiations have been in progress for some time on an international agreement concerning service of process on foreign GPE ( which might make it sufficient for the action to be served on the country \u2019s foreign ministry ) , no such agreement has to date been concluded , with the result that the issue remains unregulated by any treaty between GPE and GPE . It is not disputed that , under NORP Federal law , GPE is represented by ORG in matters which are to be regarded as acta iure gestionis ( compare CARDINAL ObA CARDINAL\/CARDINAL = ORG CARDINAL\/CARDINAL with further references concerning the employment contract between the claimant and the defendant ) . The action must therefore be served \u2013 as correctly requested by the appellant herself \u2013 on a body within that authority . It is not sufficient \u2013 as the appellant has claimed in the appeal proceedings \u2013 for the document to have somehow reached another authority which is meant to be responsible for forwarding the request for service ( ORG ) ) . Conversely , it would not be sufficient , in order to institute legal proceedings , for an action against GPE to be received by ORG if , for whatever reason , it was not forwarded to the Attorney - ORG , which is the competent authority in such matters . \u201d","The DATE European Convention on State Immunity ( \u201c the Basle Convention \u201d ) entered into force on DATE after its ratification by CARDINAL States . It has been ratified by MONEY ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) and signed by CARDINAL ORG ( GPE ) . On DATE it entered into force in respect of GPE , which had ratified it on DATE . The relevant provisions read as follows :","\u201c CARDINAL . A Contracting State can not claim immunity from the jurisdiction of a court of ORG if the proceedings relate to a contract of employment between the ORG and an individual where the work has to be performed on the territory of the ORG of the forum .","Paragraph CARDINAL shall not apply where :","a ) the individual is a national of the employing ORG at the time when the proceedings are brought ;","b ) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that ORG ; or","c ) the parties to the contract have otherwise agreed in writing , unless , in accordance with the law of the State of the forum , the courts of that ORG have exclusive jurisdiction by reason of the subject - matter . ... \u201d","\u201c CARDINAL . In proceedings against a ORG in a court of ORG , the following rules shall apply .","NORP The competent authorities of the State of the forum shall transmit","the original or a copy of the document by which the proceedings are instituted ;","a copy of any judgment given by default against a ORG which was defendant in the proceedings ,","through the diplomatic channel to ORG of the defendant ORG , for onward transmission , where appropriate , to the competent authority . These documents shall be accompanied , if necessary , by a translation into the official language , or one of the official languages , of the defendant ORG .","Service of the documents referred to in paragraph CARDINAL is deemed to have been effected by their receipt by ORG . ... \u201d","State immunity from jurisdiction is governed by customary international law , the codification of which is enshrined in LAW and their Property of DATE ( \u201c the DATE Convention \u201d ) . The principle is based on the distinction between acts of sovereignty or authority ( acta jure imperii ) and acts of commerce and administration ( acta jure gestionis ) ( see PERSON v. GPE [ ORG ] , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ; see also PERSON v. GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR DATE ) .","The Convention was opened for signature on DATE and has not yet entered into force . GPE signed the Convention on DATE and ratified it on DATE . GPE has not ratified LAW , but did not vote against it when it was adopted in ORG of ORG .","The draft text of the Convention was prepared by ORG ( ILC ) which , in DATE , was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of GPE and their property . It produced a number of drafts that were submitted to GPE for comment . ORG that were used as the basis for the text adopted in DATE dated back to DATE . They were subsequently further revised by ORG . States were again given an opportunity to comment .","DATE ( contracts of employment ) of the DATE Convention reads as follows :","\u201c CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .","Paragraph CARDINAL does not apply if :","( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority ;","( b ) the employee is :","( i ) a diplomatic agent , as defined in LAW ;","( ii ) a consular officer , as defined in LAW of DATE ;","( iii ) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission , or is recruited to represent a ORG at an international conference ; or","( iv ) any other person enjoying diplomatic immunity ;","( c ) the subject - matter of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;","( d ) the subject - matter of the proceeding is the dismissal or termination of employment of an individual and , as determined by the head of ORG , the head of ORG or the Minister for ORG of the employer State , such a proceeding would interfere with the security interests of that State ;","( e ) the employee is a national of the employer ORG at the time when the proceeding is instituted , unless this person has the permanent residence in the ORG of the forum ; or","( f ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . \u201d","Article CARDINAL ( Service of process ) of the CARDINAL Convention reads as follows :","\u201c CARDINAL . Service of process or writ or other document instituting a proceeding against a ORG shall be effected :","( a ) in accordance with any applicable international convention binding on the State of the forum and the ORG concerned ; or","( b ) in accordance with any special arrangement for service between the claimant and the ORG concerned , if not precluded by the law of the ORG of forum ; or","( c ) in the absence of such a convention or special arrangement :","( i ) by transmission through diplomatic channels to ORG of the ORG concerned ; or","( ii ) by any other means accepted by the ORG concerned , if not precluded by the law of the ORG of forum .","Service of process referred to in paragraph ( CARDINAL ) ( c ) ( i ) is deemed to have been effected by receipt of the documents by ORG .","These documents shall be accompanied , if necessary , by a translation into the official language , or CARDINAL of the official languages , of the ORG concerned .","Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs CARDINAL and CARDINAL . \u201d","In the Draft Articles on Jurisdictional Immunities of States and their ORG , adopted by ORG at its CARDINAL session in DATE , and submitted to ORG at that session , Article CARDINAL read as follows :","\u201c CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .","Paragraph CARDINAL does not apply if :","( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority ;","( b ) the subject of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;","( c ) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded ;","( d ) the employee is a national of the employer ORG at the time when the proceeding is instituted ; or","( e ) NORP the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject - matter of the proceeding . \u201d","In the commentary on ORG of DATE , it was stated that the rules formulated in LAW appeared to be consistent with the trend in legislative and treaty practice in a growing number of States ( ILC Yearbook , DATE , PERSON . II , Part CARDINAL , p. CARDINAL , \u00a7 CARDINAL ) .","In the Draft Articles of DATE , LAW service of process ) read as follows :","\u201c CARDINAL . Service of process or writ or other document instituting a proceeding against a ORG shall be effected :","( a ) in accordance with any applicable international convention binding on the State of the forum and the ORG concerned ; or","( b ) in the absence of such a convention :","( i ) by transmission through diplomatic channels to ORG of the ORG concerned ; or","( ii ) by any other means accepted by the ORG concerned , if not precluded by the law of the ORG of forum .","Service of process referred to in paragraph CARDINAL ( b ) ( i ) is deemed to have been effected by receipt of the documents by ORG .","These documents shall be accompanied , if necessary , by a translation into the official language , or CARDINAL of the official languages , of the ORG concerned .","Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs CARDINAL and CARDINAL . \u201d","ORG commentary on that Article ( ILC Yearbook , DATE , PERSON . II , Part CARDINAL , p. CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL ) , in so far as relevant in the present context , stated as follows :","\u201c ( CARDINAL ) Article CARDINAL relates to a large extent to the domestic rules of civil procedure of GPE . It takes into account the difficulties involved if GPE are called upon to modify their domestic rules on civil procedure . At the same time , it does not provide too liberal or generous a regime of service of process , which could result in an excessive number of judgments in default of appearance by the defendant ORG . The article therefore proposes a middle ground so as to protect the interests of the defendant ORG and those of the individual plaintiff .","Paragraph CARDINAL","( CARDINAL ) Paragraph CARDINAL is designed to indicate the normal ways in which service of process can be effected when a proceeding is instituted against a ORG . CARDINAL categories of means by which service of process is effected are provided : first , if an applicable international convention binding upon the ORG of the forum and the ORG concerned exists , service of process shall be effected in accordance with the procedures provided for in the convention . Then , in the absence of such a convention , service of process shall be effected either ( a ) by transmission through diplomatic channels or ( b ) by any other means accepted by the ORG concerned . Thus , among the CARDINAL categories of the means of service of process provided under paragraph CARDINAL , an international convention binding both GPE is given priority over the other CARDINAL categories . The variety of means available ensures the widest possible flexibility , while protecting the interests of the parties concerned .","Paragraphs CARDINAL and CARDINAL","( CARDINAL ) NORP Since the time of service of process is decisive for practical purposes , it is further provided in paragraph QUANTITY that , in the case of transmission through diplomatic channels or by registered mail , service of process is deemed to have been effected on DATE of receipt of the documents by ORG . Paragraph CARDINAL further requires that the documents be accompanied , if necessary , by a translation into the official language , or one of the official languages of the ORG concerned . ... \u201d","In respect of LAW the commentary also gives numerous examples of relevant provisions in national legislation . In addition it refers to LAW CARDINAL of LAW .","During the drafting process GPE commented on LAW DATE ORG ( which became LAW ) . It did not object to the rules enshrined in LAW ) ( c ) ( i ) and LAW ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71247","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2005,"docname":"PASSILA v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr. PERSON , is a NORP national who was born in DATE and lives in GPE .","On DATE ORG ( kansanel\u00e4kelaitos , folkpensionsanstalten ) of PERSON decided that as of DATE the NORP social security legislation did not apply to the applicant as he was not considered to be permanently resident in GPE .","The applicant appealed to ORG ( tarkastuslautakunta , pr\u00f6vningsn\u00e4mnden ) which rejected the appeal on DATE . The decision of ORG was sent to the applicant \u2019s address in GPE , but allegedly the applicant never received it . He had allegedly requested the authorities to send the decision to his address in GPE .","The applicant alleged that he became aware of the decision of ORG in DATE when ORG asked him to return some wrongly paid social benefits . By that time the decision of ORG had already gained legal force and he was not able to appeal against it to ORG ( vakuutusoikeus , f\u00f6rs\u00e4kringsdomstolen ) . At that time he allegedly asked advice from ORG and ORG , without any helpful response .","Under LAW of ORG ( hallintolaink\u00e4ytt\u00f6laki , f\u00f6rvaltningsprocesslagen ORG ) an expired time - limit may be restored to a person who has a legal excuse or who for another strong reason was unable to observe a prescribed time - limit in lodging an appeal against a decision .","Under section CARDINAL of the said Act an application for the restoration of an expired time - limit shall be lodged with ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) within DATE of the expiry of the original time - limit , at the latest . For a very strong reason the time - limit may be restored even after that period .","In a decision of DATE ( no CARDINAL ) ORG decided to restore an expired time - limit for A in order to lodge an appeal to ORG against a decision of ORG in a case where the decision of ORG was not given to him as required by section CARDINAL , subsection CARDINAL of LAW ( ymp\u00e4rist\u00f6nsuojelulaki , milj\u00f6skyddslagen ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76682","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2006,"docname":"CASE OF YANAKIEV v. BULGARIA","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)","judges":"Peer Lorenzen","text":["By an order of CARDINAL DATE the applicant was settled as a tenant , together with his family , in a flat which the ORG had assigned in DATE for \u201c use and management \u201d to the ORG enterprise by which he was employed . He moved in the flat in DATE .","In a decision of CARDINAL DATE ORG transformed the enterprise employing the applicant into a NORP singlemember limited liability company . On DATE ORG ordered the entry of the newly formed company into the register of companies . In a decision of CARDINAL DATE the Minister of Industry , acting as a representative of the sole shareholder \u2013 the State \u2013 transformed the company into a ORG singleshareholder jointstock company . The transformation was entered into the register of companies kept at ORG on DATE .","In DATE , after the entry into force , on DATE , of certain amendments to LAW ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0443\u0440\u0435\u0436\u0434\u0430\u043d\u0435 \u043d\u0430 \u0436\u0438\u043b\u0438\u0449\u043d\u0438\u0442\u0435 \u0432\u044a\u043f\u0440\u043e\u0441\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 \u0441 \u043c\u043d\u043e\u0433\u043e\u0433\u043e\u0434\u0438\u0448\u043d\u0438 \u0436\u0438\u043b\u0438\u0449\u043d\u043e\u0441\u043f\u0435\u0441\u0442\u043e\u0432\u043d\u0438 \u0432\u043b\u043e\u0433\u043e\u0432\u0435 \u201c \u2013 \u201c LAW of DATE \u201d \u2013 see paragraphs DATE below ) , the applicant applied to purchase the flat . He considered that paragraph CARDINAL of the additional provisions of the LAW entitled him to buy the flat at a preferential price . It appears that many of his colleagues had purchased the flats they were renting from their employer under this provision . On DATE the board of directors of the applicant \u2019s employer assented to the sale .","On DATE the applicant requested the mayor of ORG to approve the sale , enclosing declarations and documents purporting to establish that he met all the conditions laid down in LAW ( see paragraph CARDINAL below ) . In addition , he submitted a letter from his employer \u2019s board of directors , in which it informed the mayor that it had assented to the sale and asked him to validate it . The letter expressly mentioned that the sale was to be effected under paragraph CARDINAL of the additional provisions of LAW of DATE , and indicated the company \u2019s bank account to which the municipality was to transfer the sale proceeds once the applicant had made the payment .","NORP The mayor failed to reply and on an unspecified date in DATE the applicant filed with ORG an application for judicial review of his tacit refusal .","In a judgment dated DATE and entered in the court \u2019s register on DATE , ORG quashed the refusal and instructed the mayor to issue , within DATE , an order validating the sale . It held as follows :","\u201c According to section CARDINAL of the [ LAW of DATE ( \u201e \u041d\u0430\u0440\u0435\u0434\u0431\u0430 \u0437\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u043d\u0438\u0442\u0435 \u0438\u043c\u043e\u0442\u0438 \u201c \u2013 see paragraphs PERSON below ) ] , the sale of ORG - entityowned [ \u201e \u0432\u0435\u0434\u043e\u043c\u0441\u0442\u0432\u0435\u043d\u0438 \u201c ] housing units is effected by the municipal councils under the conditions laid down in section CARDINAL(CARDINAL ) of the [ Regulations ] , that is , pursuant to a proposal by the respective ORG entity , indicating the buyer . In such case , under LAW ] , the municipal council effects the sale on the basis of an order issued by it .","The text of LAW ] is categorical on the point that , provided all conditions for execution of the transaction have been met , the municipal council has no discretion whether or not to do so , but must issue the respective order . Such an order undoubtedly constitutes an individual administrative decision and is , like the tacit refusal to issue it , subject to review under LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0430\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0442\u0438\u0432\u043d\u043e\u0442\u043e \u043f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u043e \u201c \u2013 \u201c the ORG \u201d \u2013 see paragraph CARDINAL below ) ] .","The facts of the case indicate beyond doubt that the applicant was a tenant in the flat [ in issue ] on the basis of ORG ] ... order ... of CARDINAL DATE . As such , he has the right to buy it according to the procedure laid down in the [ Regulations ] .","It is also beyond doubt that this flat is the property of [ the applicant \u2019s employer ] .","In a decision of [ DATE ] the board of directors of the [ applicant \u2019s employer ] allowed the applicant to purchase the ORG - entity - owned housing unit he was living in .","In execution of this decision [ the applicant \u2019s employer ] addressed a request to the chairperson of ORG of ORG [ i.e. the mayor \u2013 see paragraph CARDINAL below ] , in which it had also indicated the buyer . Thus , all requirements of section CARDINAL of the [ Regulations ] were complied with .","In view of this state of affairs ORG should have discharged its duty under LAW ] , finalising in due form the consent already achieved between the parties and issuing the respective order .","ORG is in effect not a party to the sale agreement . The parties are the ORG entityowner [ of the flat ] and the tenant . ORG acts as an administrative authority which only approves the already concluded contract .","The tacit refusal to do so was unlawful . \u201d","NORP The mayor refused to comply and on DATE submitted a petition for review ( see paragraphs CARDINAL below ) to ORG , arguing that such an order DATE or the refusal to issue it \u2013 was not an individual administrative decision and was hence not subject to judicial review under the ORG .","The applicant filed a counterpleading , arguing , inter alia , that the dispute did not concern an ordinary sale of a NORP housing unit but a sale of a housing unit subject to the special provisions of paragraph CARDINAL of the additional provisions of LAW of DATE . The mayor \u2019s role was thus not that of a contracting party , as it would have been in the general case , but that of a supervising administrative authority . Once the prerequisites for effecting the sale had been met , the mayor had no discretion but to approve it . He or she could refuse to do so only if the applicant did not meet the conditions laid down by the LAW .","ORG held a hearing on DATE . The applicant \u2019s counsel argued that the mayor \u2019s petition for review had been submitted out of time . The participating prosecutor also maintained that the petition was untimely and stated that the mayor should be allowed to present evidence to prove when ORG judgment had been entered in the register . The merits of the case were not pleaded during the hearing .","On DATE ORG sent a letter to ORG , enquiring about the date on which the latter \u2019s judgment had been entered in the court \u2019s register . ORG replied that its judgment had been entered on DATE .","In DATE ORG was divided into a ORG and a ORG . The newly formed ORG took over cases , such as the applicant \u2019s , in which petitions for review in administrative proceedings had been pending before the former ORG .","A threemember panel of ORG gave judgment on DATE . It held that the petition for review had been submitted within the DATE statutory time - limit and was thus admissible and continued :","\u201c ... The petition for review is well - founded .","In the judgment under review ORG quashed the tacit refusal of the mayor ... of GPE to enter into a contract for the sale of a ORG housing unit ... to its tenant ...","The mayor \u2019s decisions to enter into contracts for the sale of NORP housing units under LAW [ of DATE ] or the refusals to do so , including where the housing units have been given , for management , to ministries , other ORG entities , ORG commercial enterprises and institutions , are not administrative decisions within the meaning of section CARDINAL of the [ ORG ] . These decisions precede the execution of the bilateral transaction for transferring title to the respective property from the ORG to the individual purchaser and denote the assent of the mayor ... to the future execution of such a deal . [ The mayor ] does not , however , act as an administrative authority ; he is placed on equal footing with the private individual contracting with him . For this reason his acts in such cases fall out of the ambit of the [ ORG ] and are not subject to review under it . ...","Moreover , in view of the terms of section CARDINAL of ORG [ of DATE ] , it could not be accepted that the municipalities are bound to sell ORG housing units to the tenants settled therein . This provision sets out only the manner in which these housing units are sold and the persons who are entitled to purchase them in the event of a decision to that effect by the competent body . There is no legal obligation for the mayor to approve the sale of a ORG flat . This lack of a legal duty excludes administrative or judicial review under the [ ORG ] .","...","In examining the application [ for judicial review ] the [ ORG ] ORG overstepped its jurisdiction . Its judgment therefore is to be quashed , the application is to be left without examination , and the proceedings are to be discontinued . ... \u201d","On DATE the applicant filed a petition for review , expounding all his arguments , including those relating to the merits of the case . Later he filed additional observations . A hearing was held on DATE , at which the applicant \u2019s counsel argued the case and made reference to his earlier written pleadings .","On DATE a fivemember panel of ORG found the applicant \u2019s petition timely , but dismissed it in the following terms :","\u201c The threemember panel \u2019s judgment is wellfounded . The proceedings before ORG related to the refusal of the mayor of GPE to enter into a contract for the sale of a ORG housing unit . The holding that the decisions to enter into a contract for the sale of ORG - owned housing units in the manner prescribed in LAW [ of DATE ] or the refusals to do so , including where [ such housing units ] have been assigned to ORG entities , as in the case at hand , are not individual administrative decisions within the meaning of section CARDINAL of the ORG is correct . [ These decisions ] precede the execution of a bilateral transaction transferring title to the property from the ORG to the [ individual ] , and denote the assent of the mayor ... to the future execution of this transaction . [ The mayor ] does not act as an administrative authority ; he is placed on an equal footing vis - \u00e0 - vis the private person . Therefore , his acts in such cases are not encompassed by the [ ORG ] . Acts which relate to civillaw relations , where the administrative authority and the [ person concerned ] are on an equal footing , are not individual administrative decisions within the meaning of the ORG .","The threemember panel correctly found that in view of section CARDINAL et seq . of ORG [ of DATE ] it could not be accepted that the municipalities are bound to sell ORG housing units to their occupants . This provision sets forth only the manner of selling such units , which could be purchased in the event of a decision to this effect by the competent body . There is however no legal duty for the mayor ... to assent to the sale of a ORG housing unit , and in the absence of such a legal obligation administrative or judicial review under the ORG is inadmissible . \u201d","Neither the threemember panel , nor the fivemember one mentioned LAW of DATE in their reasons .","This Act concerns mainly persons who have deposited money in special housing bank accounts prior to DATE ( the applicant does not fall into this category ) .","Separately , paragraph CARDINAL of the additional provisions of the LAW , dealing with the housing needs of employees of ORG entities ( \u201e \u0432\u0435\u0434\u043e\u043c\u0441\u0442\u0432\u0430 \u201c ) , provided , as enacted in DATE :","\u201c ORG entities which own residential buildings may sell existing housing units to their employees ... provided the persons willing to purchase them meet the requirements of section CARDINAL(CARDINAL ) . \u201d","Effective DATE , that text was amended to read :","\u201c CARDINAL . State entities ... shall , by decisions adopted by their managements after DATE and not later than CARDINAL moths after the entry into force of this amendment of the LAW , sell the existing housing units to their employees under the following terms :","( CARDINAL ) NORP employees who have applied to purchase ORG - entityowned housing units not DATE or were tenants therein before that date and who meet the requirements of section CARDINAL(CARDINAL)(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of the Act may purchase the units at prices set in accordance with [ previous , more favourable pricing rules ] .","( CARDINAL ) NORP employees who were settled as tenants after DATE , but before the entry of this amendment of the LAW into force , and , as of the date of issuing of the settlement order , met the requirements of section CARDINAL(CARDINAL)(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of the LAW , may purchase the housing units at prices set in accordance with [ the then current pricing rules ] .","The difference between the price at which the housing units are acquired under subparagraph CARDINAL and their real value shall be borne by the [ respective ORG entity ] . \u201d","Points CARDINAL , CARDINAL , and CARDINAL of section CARDINAL(CARDINAL ) of the LAW , as in force at the relevant time , laid down certain conditions for the persons concerned to come within its purview : ( i ) that they did not own homes or country houses fit for permanent use whose value , when added to the value of the remainder of their assets , was above CARDINAL old NORP levs ( ORG ) , ( ii ) that they had not conveyed title to homes to third parties after DATE , except in cases of partition of property , and that ( iii ) the total amount of their movable and immovable assets , other than their homes and country houses , valued in accordance with the Regulations for the implementation of the LAW , was below BGL CARDINAL .","Section CARDINAL of the Regulations ( \u201e \u041f\u0440\u0430\u0432\u0438\u043b\u043d\u0438\u043a \u0437\u0430 \u043f\u0440\u0438\u043b\u0430\u0433\u0430\u043d\u0435 \u043d\u0430 \u0417\u0430\u043a\u043e\u043d\u0430 \u0437\u0430 \u0443\u0440\u0435\u0436\u0434\u0430\u043d\u0435 \u043d\u0430 \u0436\u0438\u043b\u0438\u0449\u043d\u0438\u0442\u0435 \u0432\u044a\u043f\u0440\u043e\u0441\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 \u0441 \u043c\u043d\u043e\u0433\u043e\u0433\u043e\u0434\u0438\u0448\u043d\u0438 \u0436\u0438\u043b\u0438\u0449\u043d\u043e\u0441\u043f\u0435\u0441\u0442\u043e\u0432\u043d\u0438 \u0432\u043b\u043e\u0433\u043e\u0432\u0435 \u201c ) , which were enacted in DATE , reads :","\u201c The persons eligible within the meaning of the LAW are :","...","( CARDINAL ) tenants in housing units owned by [ ORG entities ] whose tenancies commenced before DATE ; ... \u201d","Paragraph CARDINAL(CARDINAL ) of the of the additional provisions of the Regulations defines \u201c existing housing units \u201d ( the expression used in paragraph CARDINAL of the additional provisions of LAW see paragraphs CARDINAL and CARDINAL above ) as units which have been completed not DATE ( in the cases falling under subparagraph CARDINAL ) of paragraph CARDINAL ) or CARDINAL DATE ( in the cases falling under subparagraph CARDINAL(CARDINAL ) of paragraph CARDINAL ) .","Paragraph CARDINAL(CARDINAL ) of the additional provisions of the ORG provides that paragraph CARDINAL of the additional provisions of the LAW does not apply to housing units which have been assigned by the municipalities to ORG entities for use and management .","By paragraph CARDINAL(CARDINAL ) of the additional provisions of the ORG , the decisions to sell ORG housing units are valid if they are adopted by their collective management bodies , or by the respective government minister or an official authorised by him or her .","Paragraph CARDINAL ) of the transitional and concluding provisions of the Regulations ( added in DATE ) provides that if the housing units under paragraph CARDINAL of the additional provisions of the LAW have been listed as longterm assets of ORG - owned commercial companies , the difference between the price at which they were sold and their book value has to be noted down as a reduction of these ORG capital .","The State Property Regulations of DATE ( repealed in DATE ) were adopted by ORG under section CARDINAL of LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0441\u043e\u0431\u0441\u0442\u0432\u0435\u043d\u043e\u0441\u0442\u0442\u0430 \u201c ) DATE which empowered it to make regulations for the \u201c management , use , and disposition \u201d of ORG property \u2013 and governed , inter alia , the procedure for selling housing units owned by the ORG ( section CARDINAL(CARDINAL ) ) .","Their section CARDINAL(CARDINAL ) provided that where housing units , given for \u201c use and management \u201d to , inter alia , ORG entities or ORG commercial enterprises and institutions , were put up for sale , they had to be turned over to the municipality on the territory of which they were situated for effectuating the transaction .","Section CARDINAL(CARDINAL ) provided that the sale was effected on the basis of an order of the chairperson of the executive committee of the municipal council ( after the adoption of the LAW of DATE that was the mayor ) .","Section CARDINAL dealt with the conditions for and the manner of selling of Stateowned housing units to tenants .","Before DATE , under the communist regime , State enterprises did not enjoy an independent right of property over their assets ; these assets were the property of the ORG and were only made available to them for \u201c use and management \u201d .","Under LAW of DATE ( PERSON \u0437\u0430\u043a\u043e\u043d \u201c ) and other reform legislation adopted in DATE and DATE , ORG enterprises had to be transformed , by decision of the relevant ministry and upon registration at the competent court , into singlemember limited liability companies or singleshareholder jointstock companies whose sole member or shareholder was the ORG .","The question whether the transformed enterprises became full owners of their assets or continued to be only beneficiaries of a right to \u201c use and manage \u201d them on behalf of the ORG was unclear and was still discussed in the legal theory after DATE . It was finally settled with the adoption , in DATE , of ORG and ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u043d\u0430\u0442\u0430 \u0441\u043e\u0431\u0441\u0442\u0432\u0435\u043d\u043e\u0441\u0442 \u201c \u0438 \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043e\u0431\u0449\u0438\u043d\u0441\u043a\u0430\u0442\u0430 \u0441\u043e\u0431\u0441\u0442\u0432\u0435\u043d\u043e\u0441\u0442 \u201c ) . Sections CARDINAL ) of both Acts provided that the assets of ORG or municipalityowned commercial companies were not the property of the ORG or , respectively , of the municipalities , even if they were the sole shareholder or member of such companies . In DATE ORG confirmed that this provision applied to flats previously made available for \u201c use and management \u201d to ORG enterprises which had later been transformed into commercial companies ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e PERSON \u2116 CARDINAL \u0433. , \u0412\u0410\u0421 , III \u043e. ) .","Article CARDINAL of the LAW of DATE provides :","\u201c CARDINAL . The courts shall review the lawfulness of the administrative authorities\u2019 acts and decisions .","Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them , save as expressly specified by statute . \u201d","The ORG governs the procedure for issuing administrative decisions and for judicial review of such decisions . Section CARDINAL(CARDINAL ) of the ORG defines \u201c individual administrative decisions \u201d as \u201c decisions issued [ by public authorities ] , which create rights or obligations for , or affect the rights or the legitimate interests of , individuals or juristic persons , as well as the refusals to issue such decisions \u201d . By sections CARDINAL of the ORG , all \u201c administrative decisions \u201d , save those relating to the national security or specifically enumerated by statute , are subject to judicial review .","In this interpretative judgment no . CARDINAL of DATE in constitutional case no . CARDINAL ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e PERSON \u2116 DATE \u0433. , \u043e\u0431\u043d. GPE , \u0431\u0440. CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. ) ORG gave a binding interpretation of LAW . It held , inter alia , that this provision encompassed all administrative decisions regardless of their character or theoretical qualification . The exclusion of a given administrative decision from judicial review could only be done by statute . \u201c All administrative decisions \u201d meant \u201c without exception \u201d . Only internal decisions which did not affect in any way physical or juristic persons outside the respective administration were not covered by the constitutional provision .","Until DATE section CARDINAL of the ORG provided that the regional courts\u2019 judgments on applications for judicial review of administrative decisions were final and could be set aside only in accordance with LAW seq . of LAW DATE ( \u201c the ORG \u201d ) .","Articles DATE of the ORG , repealed with effect from DATE , governed review proceedings before the former ORG . Prior to DATE these texts stipulated that review proceedings were initiated on the proposal of ORG or the chairperson of ORG , which was not , as a rule , limited by time , and was examined in private by a section of ORG or its Plenary .","However , these texts were fully reshuffled with effect from DATE and henceforth provided that review proceedings were initiated upon the petition of a party to the case ( LAW ) , lodged within DATE after the entry into force of the lower court \u2019s judgment ( Article CARDINAL \u00a7 CARDINAL ) , or the proposal of ORG ( LAW ) , lodged within DATE after the judgment \u2019s entry into force ( Article CARDINAL \u00a7 CARDINAL ) . A petition for review did not have suspensive effect , but ORG could , on the application of the petitioning party , order a stay of the enforcement of the lower court \u2019s judgment in case such enforcement would cause irreparable harm to the petitioning party ( LAW ) . The petition was examined by ORG at a public hearing in the presence of the parties to the case ( LAW ) . ORG had the power to set the judgment aside wholly or in part , whenever ( i ) it was \u201c contrary to the law \u201d , ( ii ) \u201c substantial breaches of procedural law [ had ] occurred during the proceedings or in connection with the delivery of the judgment \u201d , or ( iii ) it was \u201c illfounded \u201d ( LAW in conjunction with LAW ) . If ORG set the lower court \u2019s judgment aside , it could either decide the case itself , or exceptionally remit it to the lower court for reexamination ( Article CARDINAL \u00a7 CARDINAL ) .","Article CARDINAL \u00a7 CARDINAL ( h ) of the ORG , adopted in DATE and in force since DATE , provides that an interested party may request the reopening of civil proceedings in case a \u201c judgment of ORG has found a violation of the [ Convention ] \u201d . By DATE of the ORG and LAW ) of ORG ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0432\u044a\u0440\u0445\u043e\u0432\u043d\u0438\u044f \u0430\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0442\u0438\u0432\u0435\u043d \u0441\u044a\u0434 \u201c ) , this provision is applicable to proceedings in administrative cases as well . ORG has already had occasion to use it to reopen proceedings resulting in a ruling that the courts had no jurisdiction to examine an application for judicial review of an administrative decision ( see PERSON v. GPE , no . CARDINAL , DATE ; and \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u043f\u043e PERSON \u2116 CARDINAL \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u044a\u0441\u0442\u0430\u0432 ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86762","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2008,"docname":"TODOROV v. BULGARIA","importance":3,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr Rumen PERSON , is a NORP national who was born in DATE and lives in Ahtopol . He was represented by Mr M. Ekimdjiev , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant obtained construction rights over a plot of municipal land in GPE , the municipality of PERSON ( formerly GPE ) . In accordance with the relevant law as in force at the time , the municipal authorities issued an order granting construction rights and also entered into a contract with the applicant . The surface of the plot was QUANTITY . The price was set at CARDINAL \u201c old \u201d NORP levs ( ORG ) , which the applicant paid on DATE . At that time LAW was the equivalent of CARDINAL average DATE salaries in the country .","The contract stipulated , inter alia , that the applicant \u2019s right to construct a building would expire in the event of his failing to complete the building within DATE .","The applicant hired an architect and on DATE he obtained a building permit for a CARDINAL - storey house of QUANTITY to be constructed on the plot . The applicant also purchased construction material , transported it to PERSON and stored it there .","On an unspecified date in DATE the municipal building authorities refused to authorise the commencement of the construction works as the technician who had visited the site had noted that a high - voltage electricity conduit passed over the plot .","It appears that during the same period persons claiming rights over neighbouring plots obstructed the applicant \u2019s preparations for the construction of his house . In DATE the applicant brought an action against them , seeking damages . The municipality of PERSON was summoned as a third party . By judgment of DATE ORG dismissed the applicant \u2019s claim against the neighbours , noting that the impossibility for the applicant to realise his project was only imputable to the municipality which had sold him construction rights over the plot in disregard of the fact that constructing a building there was not allowed owing to the passage of a high - voltage electricity conduit .","On an unspecified date in DATE the applicant wrote to the municipality asking them to provide him with another plot . He allegedly received assurances that that would be done later .","By decision of CARDINAL DATE the local land commission ordered the restitution of the land on which the applicant had obtained construction rights to the heirs of the person who had owned it prior to the collectivisation of agricultural land in GPE in DATE .","In DATE the applicant travelled to GPE and started working there .","On DATE the mayor of PERSON issued an order cancelling the applicant \u2019s construction rights .","On an unspecified date in DATE the applicant brought an action against the municipality of PERSON seeking restitution of the price paid by him under the DATE contract and damages for breach of contract . Initially he claimed BGL CARDINAL . On DATE he increased the claim to ORG CARDINAL .","By a judgment of DATE ORG partially granted the claim . On an appeal by the applicant , on DATE the ORG increased the award . The final judgment was that of ORG of DATE , which upheld ORG judgment .","The courts found , inter alia , that the PERSON municipality had breached the DATE contract with the applicant in that it had granted him construction rights over a plot which could not be built over and had failed to remedy that situation despite his complaints . It followed that the municipality was liable to pay all ensuing damages . The applicant had proven the alleged losses in respect of the price paid by him in DATE to the municipality ( LAW ) , the architect \u2019s fees paid by him in DATE ( ORG CARDINAL ) and the expenses incurred by him in DATE for the transport of construction material ( BGL CARDINAL ) .","The remainder of his claims , which concerned alleged loss of profits , were dismissed as unproven . The applicant had stated that in normal circumstances he would have completed the house within DATE and would have rented it DATE during DATE . The courts found that the applicant had not substantiated the alleged loss of profits . He had relied solely on information about average property and rental prices at the relevant time .","The amount awarded to the applicant was thus BGL CARDINAL plus interest . Owing to the depreciation of the NORP currency , by DATE , when the award became enforceable , it represented , together with all interest accrued , the equivalent of not QUANTITY ( ORG ) .","In his appeals before ORG and ORG the applicant protested that the courts had awarded him sums which had become worthless . He insisted that the award should be commensurate to the value of the actual damage he had sustained .","In reply to those arguments the courts stated that in accordance with the relevant law and established practice the applicant was entitled to compensation for the actual damage suffered at the time when it was occasioned .","In DATE the applicant submitted a claim in which , in confused terms , he sought a declaration that the mayor \u2019s order of CARDINAL DATE was null and void and also requested compensation . The courts interpreted the claim as an action for a declaration of nullity and rejected it as unfounded by final decision of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-66756","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2004,"docname":"SARIBEK v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national who was born in DATE and was serving his prison sentence at the PERSON prison at the time of the application . He was represented before the ORG by Mr G\u00fcney ORG , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested and taken into custody on suspicion of theft of electronic materials from his place of work .","On DATE he was brought before the public prosecutor and ORG . The applicant denied the accusations against him . He was conditionally released .","On CARDINAL DATE the public prosecutor filed a bill of indictment against the applicant for theft and requested that he be convicted and sentenced under LAW and CARDINAL of LAW .","On DATE ORG convicted the applicant of theft and sentenced him to DATE and CARDINAL months\u2019 imprisonment .","On DATE ORG upheld the judgment of ORG .","On DATE the applicant was arrested by the police and placed in prison to purge his sentence .","On DATE the judgment of ORG was sent to the registry of ORG .","On DATE the applicant \u2019s representative filed a petition with ORG and requested the re - opening of the proceedings and the suspension of the execution of the applicant \u2019s sentence , pursuant to ORG CARDINAL \u00a7 CARDINAL and CARDINAL of LAW . In the aforementioned petition , the applicant \u2019s representative stated , inter alia , the following :","\u201c The convict , ORG , has been convicted on DATE of theft ... On DATE ORG upheld the judgment ( merits no . CARDINAL\/CARDINAL , judgment no.CARDINAL ) ... \u201d","On DATE ORG dismissed the applicant \u2019s objections , against which decision the applicant \u2019s representative again objected .","On DATE the applicant was arrested by the police and placed in prison to purge his sentence .","On DATE ORG Instance dismissed the objections of the applicant .","The applicant asked the Minister of ORG to issue a written order dismissing the judgment of ORG .","On DATE the Minister of Justice informed the PERSON public prosecutor that the request of the applicant had been refused .","On DATE the wife of the applicant requested a copy of the judgment of ORG .","On DATE the applicant \u2019s representative before ORG filed a petition with ORG and asked whether the judgment of ORG had been notified to the applicant or his lawyer .","On DATE ORG informed the applicant \u2019s representative that the judgment of DATE had not been notified to the applicant or his lawyer ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92883","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF MATON v. POLAND","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG issued a bill of indictment against the applicant on charges of drug trafficking , unlawful possession of firearms and membership of an organised criminal gang . There were CARDINAL accused and CARDINAL witnesses in the case .","On DATE ORG held a first hearing in the case . From that date to DATE the court scheduled CARDINAL hearings in the case . During that period of time the court held CARDINAL and CARDINAL hearings .","On DATE the GPE ORG gave judgment in the case convicting the applicant . The applicant appealed .","The proceedings are currently pending before ORG .","On DATE the applicant lodged a complaint with ORG under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) . He also claimed just satisfaction in the amount of FAC CARDINAL .","On DATE ORG dismissed the length complaint . Although the court found that the proceedings had lasted a very long time , it concluded that this had not amounted to an \u201c excessive length \u201d as defined by LAW . ORG pointed out that the court had scheduled CARDINAL hearings in DATE , CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . However , several hearings had had to be postponed because defence lawyers , co - accused and witnesses were absent and assessors and judges were ill .","On DATE the applicant lodged another complaint with ORG .","On DATE ORG again dismissed the length complaint . The court found that the proceedings had been handled properly and the delays had been attributable to other persons and unexpected circumstances rather than to the court . ORG pointed out that since DATE the court had held CARDINAL hearings and CARDINAL hearings had had to be postponed because defence lawyers and experts had been absent , assessors , a judge and certain co - accused had been ill , renovation works had been carried out in the hearing room and there had been a shortage of police officers to convey the accused to the court . ORG acknowledged that the proceedings were of a complex character and noted that the court had taken many appropriate steps in order to speed them up .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG \u2019s decisions in the cases of ORG v. GPE no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104651","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF SUTYAGIN v. RUSSIA","importance":3,"conclusion":"Violation of Art. 5-3;Violations of Art. 6-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and currently lives in GPE .","The applicant worked at ORG at ORG as the head of ORG . He resided in GPE , GPE .","On DATE ORG of ORG of GPE ( ORG \u0441\u043b\u0443\u0436\u0431\u044b \u0431\u0435\u0437\u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438 \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 PERSON \u043f\u043e GPE \u043e\u0431\u043b\u0430\u0441\u0442\u0438 , the \u201c ORG \u201d ) opened criminal proceedings under LAW in connection with the publication in DATE of the book \u201c Strategic Nuclear Weaponry of GPE \u201d which allegedly contained ORG secrets .","On DATE the ORG , acting on the basis of a search warrant , searched the applicant \u2019s flat in the presence of the applicant and his wife and seized notes , books , press clippings , computers , money in foreign currencies ( cash ) and other items . They took the applicant to their office in GPE . Over DATE an investigator questioned him as a witness , having warned him about his criminal liability if he refused to testify or made false statements . The applicant had no access to a lawyer , nor did he request that one be appointed .","On DATE the ORG brought criminal proceedings against the applicant on suspicion of high treason in the form of espionage , punishable under LAW .","On DATE an investigator joined the CARDINAL cases and ordered the applicant \u2019s detention on remand under LAW . The detention order , upheld by the prosecutor of GPE on DATE and served on the applicant at TIME on DATE , stated that the applicant had gathered , systematised and summarised information of a military - technical nature and then passed it on to representatives of a foreign organisation , ORG , for remuneration , during meetings with them outside GPE . Thus , in DATE in GPE the applicant had allegedly handed over analytical materials containing ORG secrets on the state of the NORP rocket attack warning system . In DATE in GPE he had allegedly passed on materials concerning the latest NORP aircraft complexes and had been requested to collect information on the PERSON submarine and the PERSON aircraft . He had prepared that information and obtained an entry visa for GPE , intending to hand it over in GPE in DATE . He had failed to do so for reasons beyond his control . The investigator concluded that the applicant \u2019s actions contained elements of treason , punishable under LAW . The order also stated that the preparation of charges against the applicant had not been completed , that he might obstruct the investigation and continue his criminal activities and that he might abscond .","On DATE the applicant was questioned as a suspect in the presence of his lawyer .","On DATE the applicant was charged with high treason in the form of espionage under LAW . The charges were formulated in a CARDINAL - page document . The applicant was accused of collecting and handing over to the GPE - based consultancy firm ORG information containing ORG secrets and other information damaging to GPE \u2019s national security , in the manner described in the detention order of DATE .","On DATE the prosecutor \u2019s office extended the term of the preliminary investigation and the applicant \u2019s detention on remand to DATE .","On DATE the applicant \u2019s counsel requested the investigator to replace the applicant \u2019s detention with another preventive measure that would not involve deprivation of liberty . He specifically requested that factors other than the gravity of the charge against him be taken into consideration . He pointed out that GPE was the place of the applicant \u2019s permanent residence , that the applicant was married and had CARDINAL small children , that his family did not have a source of income other than his salary , that he had a number of diseases which required medical care and that he wished to continue his work at the institute . The request was supported by applications from a Vice - President of ORG and another scientist , who wished to be the applicant \u2019s personal guarantors . On DATE the investigator from ORG of the ORG rejected the request . The applicant appealed against this decision .","On DATE and DATE the prosecutor \u2019s office extended the term of the preliminary investigation and the applicant \u2019s detention on remand to DATE and DATE respectively .","On DATE ORG office dismissed the applicant \u2019s appeal against the investigator \u2019s decision of DATE , stating that the investigator had rightly rejected the request because the applicant had been charged with a particularly serious offence . A further appeal to the Deputy General Prosecutor of GPE was rejected on DATE on the same ground .","On an unspecified date the applicant filed a court appeal complaining that his detention was unlawful and unjustified and requesting his release . In particular , he argued that he had been unlawfully detained from CARDINAL to DATE . He pointed out that there was no evidence that he might flee , and that various other factors , including his family situation , made him eligible for release . On DATE the ORG of LOC rejected the application as unfounded . The court pointed out that the applicant was accused of a crime falling into the category of particularly serious offences . It then observed that the domestic law permitted [ the courts ] to remand in custody those accused of such offences by a mere reference to the gravity of the offence . The court added that the investigation into the charges against the applicant had not been completed . It did not comment on the applicant \u2019s allegations concerning the period from CARDINAL to DATE . The decision of CARDINAL DATE was subject to appeal to ORG . There is no indication that the applicant appealed against it .","The investigating authority ordered that an expert examination be carried out with a view to determining whether the materials which the applicant had allegedly collected , stored and passed on to ORG contained ORG secrets , and whether they could have been obtained from the publications to which the applicant referred as the sources of his information . The applicant asked the investigating authority to give him an opportunity to provide explanations to the experts . His motion was rejected .","On DATE a commission of experts from ORG , which included expert PERSON , reached the conclusion that materials on the topic \u201c ORG failure to implement in full plans to set up permanent readiness units in DATE \u201d could have been derived from open publications and did not contain State secrets .","On DATE the Deputy General Prosecutor extended the term of the applicant \u2019s detention in custody until DATE . An appeal by the applicant against this decision and an application for release were rejected by ORG on DATE . In its decision the court again referred to the gravity of the charges against the applicant as the only reason for his continued detention . There is no indication that the applicant appealed to ORG against this decision .","On DATE another group of experts from ORG of the NORP armed forces , which included expert ORG , stated that the information on the topic \u201c Options for the structure of the ORG \u2019s strategic nuclear forces for the period up to DATE \u201d could have been derived from open sources , represented the result of analytical research , was untrue and did not contain State secrets .","Information relating to CARDINAL other topics was found by the experts to have contained State military secrets .","On DATE the finalised charges were brought against the applicant . They consisted of CARDINAL items , set out on CARDINAL pages . The applicant was accused of gathering , by way of analysing and systematising information published in GPE and other countries , and information from other non - established sources , and of passing on materials concerning GPE \u2019s military and defence potential which contained ORG secrets and other materials of a military and military - technical nature , to CARDINAL representatives of the GPE intelligence service , who were working under cover of the consultancy firm ORG , to be used to damage GPE \u2019s national security . According to the charge sheet , the applicant had handed over materials on CARDINAL topics of the above nature , for remuneration , during CARDINAL meetings in DATE in GPE , GPE , GPE and GPE .","According to the applicant , all of the information used in charging him was obtained by the investigating authority from his statements given on DATE , CARDINAL - CARDINAL and DATE , CARDINAL DATE and CARDINAL September CARDINAL .","On DATE the preliminary investigation was finalised .","On DATE the defence finished examining the case file .","On DATE the Deputy ORG transmitted the case to ORG for trial .","On DATE ORG ordered that the case be heard by a bench composed of a judge and CARDINAL people \u2019s assessors , in a closed trial . On DATE the court rejected the applicant \u2019s request for release , supported by CARDINAL non - governmental organisations , on the ground of the gravity of the charges against him .","A hearing was originally scheduled for DATE . It was adjourned until DATE and then until DATE , on a request by the applicant \u2019s CARDINAL new counsels , in order to allow time for examination of the case file .","On DATE ORG of GPE ( \u201c the ORG \u201d ) dismissed the applicant \u2019s appeal against the decision of DATE . It stated that , under LAW , detention on remand could be applied on the mere ground of the gravity of the crime . It held : \u201c As follows from the materials of the case , ORG is accused of committing a particularly grave crime . In these circumstances one can not accept the arguments in the appeal with regard to the unlawfulness and groundlessness of the judge \u2019s decision to maintain detention on remand as a measure of restraint . \u201d","The hearing took place on CARDINAL and DATE . On DATE it was adjourned to CARDINAL DATE , CARDINAL and DATE being non - working days , because CARDINAL of the defence counsel would be busy in another trial on DATE .","The hearing was held on DATE . DATE and DATE no hearing took place because CARDINAL of the defence counsels was ill .","The examination of the case continued on CARDINAL , DATE May , CARDINAL - CARDINAL , DATE , and DATE . On DATE the court granted the prosecutor \u2019s request to call witnesses and experts and adjourned the hearing until DATE .","The trial continued on DATE , DATE and DATE , CARDINAL , CARDINAL , CARDINAL - CARDINAL and DATE . On DATE the hearing was adjourned to CARDINAL September CARDINAL on account of the defence counsel \u2019s illness . It continued on CARDINAL - CARDINAL , CARDINAL - CARDINAL , CARDINAL , DATE . On DATE the court granted the prosecution \u2019s request to adjourn the hearing until DATE to allow time for preparation of their pleadings .","The hearing continued on DATE . The defence asked that the hearing be adjourned to CARDINAL DATE to allow the defence time to prepare on the basis of the prosecutor \u2019s submissions . The request was granted .","On DATE the court heard the prosecutor \u2019s pleadings . According to the applicant , the First Deputy Prosecutor of the Kaluga Region B. , who represented the prosecution , acknowledged that the applicant had been unlawfully detained by the ORG department of LOC from CARDINAL to DATE and asked the court to issue a \u201c special finding \u201d ( \u0447\u0430\u0441\u0442\u043d\u043e\u0435 \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 ) with such an acknowledgment .","On DATE the court heard pleadings by the defence .","On DATE the court adjourned the hearing until DATE , giving no reasons , and then until DATE on account of illness among the judges .","On DATE the court heard the applicant \u2019s final statement . The applicant stated that he had gathered information for ORG using open sources and denied the charges against him .","On DATE , after deliberations , ORG remitted the case for additional investigation .","In its decision ORG stated that the investigating authority had significantly breached the rules of criminal procedure in the course of the preliminary investigation , thus prejudicing the applicant \u2019s right to defend himself . The charges against the applicant in the statement of charges of DATE and in the bill of indictment , notably the content of the materials which the applicant had allegedly gathered , stored and transmitted to a foreign intelligence service , were excessively vague . Those documents contained the titles and general description of the topics about which the applicant had allegedly transmitted information , but did not indicate the content of that information . With regard to some accusations there was a significant discrepancy between their formulation in the statement of charges and the bill of indictment , which fact , in line with the practice directions of ORG , was a ground for remitting the case for additional investigation . With regard to certain other charges , the court noted that the investigating authority had contradicted itself in the statement of charges and the bill of indictment by referring to the same information as classified and non - classified .","A general criticism about the charges on CARDINAL topics was that it remained unclear exactly what information the applicant had allegedly gathered , stored and transmitted . This made it impossible for the court to assess the arguments put forward by the prosecution and the defence ; to establish factual questions concerning the sources and circumstances in which the information was collected ; to assess whether the information was truthful and comprised ORG secrets , and to assess the possibility that it was damaging to GPE \u2019s external security . The vague formulation of the charges , which made it impossible for the applicant to know exactly what he was accused of , also violated his right to defend himself .","The investigating authority had established the applicant \u2019s guilt based , inter alia , on the applicant \u2019s own statements . At the same time they had failed to set out and analyse in the bill of indictment the applicant \u2019s statements concerning the circumstances in which the information was collected and stored and the content of that information .","According to the investigating authority , the applicant \u2019s guilt was corroborated by the applicant \u2019s CARDINAL notebooks . There was nothing in the bill of indictment about the content of those notebooks or its analysis .","The bill of indictment referred to mutually exclusive evidence which had not been analysed and was not assessed by the investigating authority . Thus , the applicant was accused of gathering , storing and transmitting secret information concerning \u201c options for the structure of the ORG \u2019s strategic nuclear forces for the period up to DATE \u201d . The bill of indictment referred to CARDINAL expert reports as evidence : ( i ) report of DATE by the commission of experts from ORG , according to which this information was \u201c top secret \u201d ; ( ii ) statements by a certain expert to the effect that this information was partially untrue but did however contain ORG secrets ; and ( iii ) report of CARDINAL DATE by the commission of experts from ORG , according to which the information was untrue and did not contain State secrets .","The bill of indictment did not set out the applicant \u2019s arguments and any results of their examination by the investigating authority . Thus , after the charges had been served on him PERSON contended that he had taken certain information , allegedly secret , from various published interviews with NORP military commanders . He asked whether such information had been declassified . Neither the applicant \u2019s arguments nor the results of their examination were set out in the bill of indictment . The applicant had argued that he obtained some information from the foreign press in LANGUAGE . However , the experts submitted to the trial court that they had never examined these publications . The applicant had contended that he had received all of his information , including that which , according to the experts , had comprised ORG secrets , from open sources . These arguments by the applicant had not been properly examined in the course of the preliminary investigation . The results of the examination had not been set out in the bill of indictment .","During the preliminary investigation , expert examinations had been conducted into the secrecy of the information allegedly gathered , stored and transmitted by the applicant . CARDINAL expert commissions had concluded that part of the information contained ORG secrets of different levels . The experts\u2019 conclusions had been included in the formulation of charges . In their examination the experts had been governed by order no . CARDINAL of ORG of DATE , containing a list of information subject to classification in ORG , to which the applicant had never had access . By failing to provide the applicant with access to that document the investigating authority had violated his right to defend himself . Furthermore , that list was a secret document and had never received State registration ; it should not therefore have been relied on by the experts ( ORG in its decision of DATE held that this order was a document touching upon human rights which should be registered ; normative acts void of registration were invalid ) .","The trial court agreed with the defence that the expert examinations ( reports of DATE , DATE , CARDINAL and CARDINAL DATE ) had been ordered and carried out in violation of the law on criminal procedure .","In view of the above violations the trial court remitted the case to the NORP regional prosecutor for additional investigation , as required by ORG CARDINAL \u00a7 CARDINAL ( CARDINAL ) and CARDINAL of LAW , and ordered , without giving any reasons , that the applicant should remain in detention .","The court held that should the evidence gathered as a result of the new investigation be sufficient to bring charges against the applicant , those charges were to be formulated in detail in a statement of charges , in accordance with the requirements of LAW . A bill of indictment had to comply with LAW and contain , in particular , the detailed formulation of a charge , which was not to differ significantly from the formulation in the statement of charges to the detriment of the accused . The bill of indictment had further to describe and examine evidence produced by the investigating authority and the accused \u2019s arguments in his defence . Expert examination of the information included in the charges should , if necessary , be carried out so that the accused \u2019s rights would be duly respected .","The applicant and his counsel appealed against this decision . They did not dispute the trial court \u2019s findings with regard to the procedural violations by the investigating authority . They argued , however , that the vague formulation of the charges , as well as the violations in preparing the bill of indictment and in ordering and carrying out expert examinations , showed the irreparable incompleteness of the investigation , which warranted the applicant \u2019s acquittal . The trial court should not have remitted the case for additional investigation on its own initiative without relevant requests to that effect by the parties . The flawed preliminary investigation should have resulted in the applicant \u2019s acquittal .","The defence also appealed against the decision upholding the applicant \u2019s detention . They submitted that there was no evidence that he would flee . The applicant and his family and relations \u2013 his wife , CARDINAL minor children , parents and brother \u2013 resided permanently in GPE . His wife and children were in a difficult financial situation . The applicant had a number of diseases which could not be treated properly in his detention facility . There was no evidence that the applicant could obstruct the investigation or would engage in criminal activities . The counsel complained about violations of LAW in particular , given that the gravity of the offence was the sole ground for the applicant \u2019s continued detention .","On DATE ORG dismissed the appeal and upheld the decision . It maintained that the charges against the applicant had been too vague , and stated that ORG had rightly decided to remit the case for additional investigation and remand the applicant in custody , and that it found no ground to quash or amend that decision .","On DATE the investigation department of the ORG of LOC commenced the additional investigation .","On DATE they ordered a new comprehensive expert report on whether the information which the applicant had allegedly transmitted to ORG contained ORG secrets . The defence objected to that decision , arguing that the experts were supposed to compare the statutory list of classified information and the transmitted information , which was in fact legal assessment . The applicant requested that he be allowed to be present at the expert examination and to provide explanations to the experts . He also noted that for unknown reasons the investigating authority had not forwarded to the experts a number of publications used by him . He requested that those publications be sent to the experts for their examination .","In his decision of CARDINAL DATE the head of the investigation department rejected the applicant \u2019s requests . He stated , in particular , that all open sources had been forwarded for expert examination , except for those to which the applicant had referred without any ground , as they were mismatched chronologically ( published after the events incriminated to the applicant ) or textually with the information transmitted by the applicant . He stated that the applicant \u2019s presence at the expert examination was not necessary since the materials submitted to the experts , including the applicant \u2019s statements , were sufficient to answer the questions put to them .","On DATE the case was transferred to the ORG central investigation department in GPE on ORG instruction .","On DATE a commission of experts from the ORG of ORG of GPE carried out an assessment of the materials given to them by the investigating authority ( records of the applicant \u2019s interrogations and the publications to which the applicant referred as the sources of his information ) and reached the conclusion that the materials on the following CARDINAL topics constituted State secrets , were true and could not have been obtained from the publications examined by them :","\u2013 the structure and state of the missile [ early-]warning system ;","\u2013 the RF Ministry of Defence \u2019s failure to implement in full plans to set up permanent readiness units in DATE ;","\u2013 options for the structure of the ORG \u2019s strategic nuclear forces for the period up to DATE ;","\u2013 specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised MiG-CARDINAL ;","\u2013 possible directions in the development of NORP air - to - air missiles .","NORP In their assessment the experts were governed by LAW , as amended on DATE , Presidential decree no . DATE of DATE , LAW and unpublished decrees of ORG nos . CARDINAL and CARDINAL issued on DATE and DATE respectively .","On DATE the applicant was re - charged with CARDINAL counts of treason by way of espionage under LAW . He was accused of gathering , using the opportunities provided by his job at ORG , information on CARDINAL topics containing ORG secrets from various sources , including closed sources , and transmitting it , on CARDINAL occasions in DATE , to representatives of a foreign state with a view to damaging the national security of GPE . The charges in respect of the remaining items were withdrawn .","On DATE the additional investigation was finalised .","On DATE the applicant and his counsel began examination of the case file . The case file was composed of CARDINAL pages , computer files , audio and video records .","On DATE ORG extended the applicant \u2019s detention on remand to DATE at the investigator \u2019s request . The applicant appealed . On DATE ORG quashed the decision as unlawful and ordered a fresh examination . It stated in its decision that pre - trial detention could only be extended if legitimate grounds were supported by the relevant factual circumstances .","Following this decision , an investigator from the prosecutor \u2019s office submitted to ORG a copy of a document from which it followed that the applicant had received an entry visa for GPE which had expired in DATE .","On DATE ORG gave a new decision extending the applicant \u2019s detention until DATE , on the grounds that , in view of his open visa for a trip abroad , he could abscond or otherwise obstruct the investigation and that he was accused of committing a particularly serious offence .","On DATE ORG extended the applicant \u2019s detention on the same grounds until such time as the applicant had completed examination of the case file .","DATE . The defence appealed against the CARDINAL decisions , pointing out , inter alia , that , according to the applicant \u2019s passport , his NORP visa had been issued for the period from DATE to DATE .","On DATE ORG rejected the appeals , holding that there were no grounds for the applicant \u2019s release and referring to the gravity of the charges .","On DATE the defence finished its examination of the case file . The applicant requested that ORG and PERSON , who had carried out the expert assessment in the case in DATE , be examined by a trial court . The investigating authority included these individuals in the list of witnesses to be examined by a trial court , which was enclosed with the bill of indictment . CARDINAL prosecution witnesses , the ORG training unit officers CARDINAL , ORG and PERSON , were also added to that list .","In DATE the applicant lodged a request for his case to be heard by a jury . The case was transferred to ORG for trial .","On DATE a judge of ORG listed a preliminary hearing for DATE . The hearing started on the latter date but was adjourned to QUANTITY DATE at the prosecutor \u2019s request to allow time for preparation .","On DATE the President of ORG assigned the case to judge PERSON . , who held a preliminary hearing on DATE and scheduled a hearing on the merits by a jury for DATE .","On DATE judge PERSON . examined an application for release lodged by the defence . He observed that the applicant had been detained in connection with the accusation of a particularly grave offence , on well - founded grounds which were still valid . He held that the applicant \u2019s detention as a preventive measure should therefore remain in place . The defence appealed , arguing that the decision contained no reasons for the applicant \u2019s continued detention .","The jury was formed and the trial commenced on DATE .","DATE . On DATE the prosecution asked that the hearing be adjourned to CARDINAL DATE in order to produce evidence . The request was granted .","On DATE the hearing was postponed to DATE as the prosecution witnesses had failed to appear .","On DATE ORG rejected the applicant \u2019s appeal against the decision of DATE and upheld that decision . It noted the seriousness of the charges against the applicant and stated that the reasons for the initial decision to remand the applicant in custody as a preventive measure were still valid and that there had been no violations of the rules of criminal procedure .","On DATE the examination of the case was adjourned to CARDINAL DATE as the applicant had not been transported to court on account of quarantine in his detention facility .","On DATE the court adjourned the hearing until the end of the quarantine period and the applicant \u2019s recovery .","On DATE , as the defence later learned from the materials of the case file , the President of ORG assigned the case to judge PERSON materials of the case file contain the following resolution by the President : \u201c To PERSON , [ I ] [ a]sk [ you ] to take the case over for examination \u201d .","The list of jurors of ORG for DATE was approved by the Mayor of GPE on DATE and later sent to the court .","According to the applicant , the quarantine ended on DATE . The defence filed numerous requests with the presiding judge , the President of the court and various authorities , seeking to have hearings in the case resumed .","On DATE the defence was notified that the hearing would take place on DATE and that the case had been assigned to judge PERSON The defence lodged a number of requests , seeking information on the grounds and reasons for the replacement of the presiding judge , including a request of CARDINAL March CARDINAL addressed to the President of ORG . They were all left unanswered .","On DATE judge PERSON examined a request by the prosecution for extension of the term of the applicant \u2019s detention . She also examined an application for the applicant \u2019s release , supported by an application from representatives of various non - governmental organisations , ORG and ORG . The judge noted that DATE of the applicant \u2019s detention in custody , from the moment of the receipt of the case by the court , would expire on DATE . Under LAW \u00a7 CARDINAL of the Code of Criminal Procedure , in cases concerning grave and particularly grave offences a court could prolong the terms of detention in custody for not DATE each time . In the circumstances , the judge concluded that the period of the applicant \u2019s detention should be extended until DATE . The defence appealed against this decision , arguing that it contained no reasons to justify the extension of the applicant \u2019s detention .","The new presiding judge PERSON held a hearing on DATE at which she carried out the selection of a new jury from CARDINAL candidate jurors .","The request by the defence to have the case examined by the initial composition of the jury , which , they alleged , had been unlawfully dismissed , was rejected . So too was a motion challenging the presiding judge who , according to the defence , was conducting the trial in a way favourable to the prosecution .","One of the questions put to the candidate jurors by the presiding judge was whether there were among them heads or deputy heads of bodies of the representative or executive authorities , deputies , servicemen , clergymen , judges , prosecutors , investigators , advocates , notaries and persons serving in ORG or the ORG . CARDINAL persons responded that they had served in the ORG . They were dismissed at the request of the defence . The defence asked the candidate jurors CARDINAL questions , some of which were addressed to all of them , for example , questions about their place of work , knowledge of foreign languages and Internet use . The defence challenged some of the candidate jurors twice without giving reasons . A candidate juror , PERSON , answered that he worked as a deputy head of a foreign company representative office and spoke NORP .","On DATE the individuals who were selected to serve on the jury took the oath .","The hearing was adjourned until DATE in order for the applicant to have additional time to examine the case file , as requested by him . On the latter date the defence unsuccessfully challenged the presiding judge .","On DATE the prosecution witnesses , notably T. , V. , PERSON and PERSON , were examined before the jury .","At a hearing on DATE the presiding judge granted the motion by the defence to have those publications , which , according to the applicant , had been the only source for the information transmitted to ORG , presented to the jury . The publications were presented .","The expert reports of DATE and CARDINAL DATE were then read out before the jury on a motion by the defence .","It follows from the records of the hearing that the defence then requested the examination of ORG as one of the experts who had prepared the report of CARDINAL DATE . The representatives of the prosecution objected , stating that it was impossible to understand from the report which part of the examination had been carried out by a particular expert ; that in DATE and DATE the experts had examined different materials ; and that the DATE report had lacked the \u201c research part \u201d , as a result of which a new expert examination \u2013 conducted in compliance with the legal requirements \u2013 had been commissioned at the stage of the additional investigation in DATE . The prosecution requested that the report of CARDINAL DATE , which had been conducted in breach of the law on criminal procedure , be declared inadmissible evidence . The presiding judge granted the motion by the defence to examine ORG as an expert . Since his examination was connected with the issue of admissibility of evidence the judge ordered ORG \u2019s examination in the jury \u2019s absence and adjourned the decision on the admissibility of evidence until after ORG \u2019s examination . After hearing ORG the judge declared the expert report of CARDINAL DATE inadmissible evidence on the ground that the expert examination had been carried out with breaches of the law on criminal procedure , notably LAW , in force at the material time . Thus , the report did not state what examination had been carried out by a particular expert , what facts a particular expert had established and what conclusions he or she had reached . The judge rejected the motion by the defence to have ORG examined before the jury since \u201c the expert \u2019s examination [ was ] connected with the issue of admissibility of evidence \u201d . Upon the jury \u2019s return to the court room they were told that the expert report of CARDINAL DATE had been declared inadmissible evidence and that the parties could not therefore refer to it .","On DATE more publications , from which , the applicant alleged , he had obtained information for ORG , were presented to the jury . The defence asked to examine the expert report of DATE before the jury . The presiding judge declared the report inadmissible evidence for the same reasons as the report of CARDINAL DATE . It follows from the records of the hearing that the defence asked to examine as a witness PERSON , CARDINAL of the experts who had prepared the report of DATE and who came to the court at the request of the defence . The defence asked to examine him on issues unrelated to the expert examination in question . The prosecution objected , arguing that at the preliminary investigation PERSON had carried out the expert examination and had later been examined as an expert in the trial before ORG . This prevented him from being examined as a witness in the case . PERSON had erroneously been put on the list of witnesses in the bill of indictment . The prosecution requested that the motion by the defence be rejected . The presiding judge rejected the motion to examine PERSON on the ground that PERSON \u2019s procedural status as an expert who had carried out the examination and given statements at the earlier hearing excluded the possibility of examining him as a witness .","The applicant asked that the expert assessment report of DATE be declared inadmissible evidence since , he claimed , it had the same procedural defects as the above CARDINAL expert reports , given that it also lacked a \u201c research \u201d section . The judge rejected the motion . The applicant argued before the jury that not all publications from which he had obtained the information transmitted to ORG had been examined by the experts who prepared the report of DATE .","The judge rejected a request by the defence to examine before the jury an opinion obtained by the defence from the NORP aircraft construction corporation MiG , which allegedly could help the defence to prove that the materials concerning the PERSON aircraft ( specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised PERSON ) did not contain ORG secrets .","The applicant consistently claimed that in preparing the materials for ORG he had only used information from publicly available sources \u2013 NORP and foreign publications DATE which were listed in his statements to the investigating authority and the court . According to the Director of ORG , who was examined at the trial , the applicant did not have admission or access to information containing ORG secrets during his work at the ORG . As a researcher at the institute , the applicant had to be aware of all publicly available information concerning the armament policies of the GPE and GPE . The institute did not have at its disposal information containing ORG secrets . According to the applicant , the prosecution did not establish any closed source from which he had allegedly obtained classified information .","On DATE the defence again challenged presiding judge PERSON , since they considered that she had violated the principle of equality of arms . She dismissed the requests .","On DATE ORG dismissed the applicant \u2019s appeal against the decision of DATE extending his pre - trial detention , stating that he could not be released because the trial was underway .","NORP The following CARDINAL questions were put to the jury by the presiding judge :","Question CARDINAL . Has it been shown that , from DATE , meetings occurred in GPE and GPE ( GPE ) at which a cooperation agreement was concluded with PERSON , a representative of GPE military intelligence , on gathering information about GPE , for subsequent transfer to the above - mentioned individual ; in accordance with instructions from PERSON , the following information was collected in ORG in GPE and GPE ( GPE ) , stored and handed over on various dates :","( a ) from DATE to DATE information on the topic \u201c the structure and state of the domestic missile early warning system \u201d , specifically ... was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at hotel A in GPE ( GPE ) from DATE ;","( b ) from DATE to DATE information on the topic \u201c ORG failure to implement in full plans to set up permanent readiness units in DATE \u201d , specifically ... was collected and stored , and subsequently handed over to PERSON and PERSON , representatives of GPE military intelligence , at hotel B in GPE ( GPE ) from DATE ;","( c ) from DATE information on the topic \u201c options for the structure of the ORG \u2019s strategic nuclear forces for the period up to DATE \u201d , specifically ... was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at hotel C in GPE ( GPE ) from DATE ;","( d ) from DATE to CARDINAL DATE information on the topic \u201c specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised MiG-CARDINAL \u201d , specifically ... was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at hotel NORP in GPE ( GPE ) from DATE ;","( e ) from DATE to DATE information on the topic \u201c possible directions in the development of domestic air - to - air directed missiles \u201d , specifically ... was collected and stored , and was handed over to PERSON , representative of GPE military intelligence , at hotel E in GPE ( GPE ) from DATE ;","Question CARDINAL . If an affirmative answer has been given to the first question , then has it been shown that the actions set out in it were committed by PERSON and that he received financial compensation for them ?","Question CARDINAL . If affirmative answers have been given to Questions CARDINAL and CARDINAL , then is ORG guilty of having committed the above - mentioned actions ?","Question CARDINAL . If an affirmative answer has been given to Question CARDINAL , then does ORG deserve leniency ?","NORP The applicant \u2019s lawyers sought to have other questions put to the jury , in particular a question as to whether the collected and transmitted information contained ORG secrets and had been obtained from closed sources . Their motion was refused by the presiding judge .","On DATE the jury unanimously found the applicant guilty , having answered the first CARDINAL questions put to them in the affirmative and the fourth question in the negative .","On DATE the judgment was delivered . It stated as follows :","\u201c The court ... , having examined in a closed hearing a criminal case on the charges against PERSON of having committed an offence provided for by LAW [ Criminal Code ]","ESTABLISHED :","By the jury verdict of DATE that ORG is found guilty in that from DATE in the cities of GPE and GPE ( GPE ) [ he ] met with PERSON . PERSON , representative of GPE military intelligence , and gave his consent for co - operation for collection of data about GPE with its subsequent transfer to the said person . On Sh . PERSON \u2019s instructions PERSON collected , stored and transferred , at different times , at the RAN [ ORG for the GPE and GPE in GPE and GPE , GPE , the following data :","( a ) from DATE to DATE , information on the topic \u201c the structure and state of the domestic missile early warning system \u201d , specifically ... , was collected and stored , and subsequently handed over to Sh . PERSON , representative of GPE military intelligence , at ... [ hotel A ] in GPE ( GPE ) from DATE ;","( b ) from DATE to DATE , information on the topic \u201c ORG failure to implement in full plans to set up permanent readiness units in DATE \u201d , specifically ... , was collected and stored , and subsequently handed over to PERSON . PERSON and PERSON , representatives of GPE military intelligence , at ... [ hotel B ] , room ... , GPE ( GPE ) , from DATE ;","( c ) from DATE , information on the topic \u201c options for the structure of the ORG \u2019s strategic nuclear forces for the period up to DATE \u201d , specifically ... , was collected and stored , and subsequently handed over to PERSON . PERSON , representative of GPE military intelligence , at ... [ hotel C ] , GPE ( GPE ) from DATE ;","( d ) from DATE to CARDINAL DATE , information on the topic \u201c specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised MiG-CARDINAL \u201d , specifically ... , was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at ... [ hotel D ] in GPE ( GPE ) from DATE ;","( e ) from DATE to DATE , information on the topic \u201c possible directions in the development of domestic air - to - air directed missiles \u201d , specifically ... , was collected and stored , and was handed over to PERSON , representative of GPE military intelligence , at ... [ hotel E ] , GPE ( GPE ) from DATE .","On the basis of circumstances as established by the guilty verdict the court determines that the accused ORG acts were high treason in the form of espionage under LAW , specifically transmission , collection and storage with a view to transmission to foreign state representatives , of information constituting ORG secrets , to be used to damage the ORG \u2019s national security committed by a ORG citizen .","It has been established that the aforementioned information , which ORG collected and stored with a view to transmission , and transmitted to GPE military intelligence representatives , constitutes ORG secrets .","Furthermore , the mechanism of the espionage activities committed by him is characterised by a mercenary motive ... [ Sutyagin ] transmitted to foreign state representatives information about GPE of a military and military - political nature constituting ORG secrets to damage the ORG \u2019s national security in exchange for a cash award in an attempt to derive gains of a pecuniary nature .","...","In deciding on the culprit \u2019s punishment in accordance with LAW the court takes into account the nature and the degree of social danger of the committed acts , information on his personality , and the impact of the punishment imposed on his reformation and on the conditions of his family \u2019s life .","The court takes into account ORG \u2019s positive references from his place of work and residence , his having CARDINAL dependant minor children , born in DATE and DATE , and his state of health .","Under the jury \u2019s verdict the culprit does not deserve leniency . The court found no circumstances extenuating or aggravating ORG \u2019s punishment .","and the fact that the ORG \u2019s defence and security was damaged as a result of the transmission by ORG about GPE constituting ORG secrets to foreign state representatives , the court concludes that the culprit \u2019s correction and reformation are only possible in the conditions of his isolation from society by serving his sentence in a strict - regime correctional colony .","On the basis of the aforesaid and being governed by ORG , CARDINAL , CARDINAL paragraph CARDINAL and CARDINAL of ORG , the court","SENTENCED :","PERSON to be convicted of an offence provided for by LAW and to be punished by way of deprivation of liberty for DATE , to be served in a strict - regime correctional colony .","ORG sentence is to be calculated from DATE .","... \u201d","The applicant appealed against the judgment . In particular , he complained that the replacement of Judge PERSON . and the original jury composition by assigning judge PERSON to the case had been unlawful ; that juror PERSON should not have sat in his trial as he had been included in the list of jurors of ORG ; and that the list of jurors of ORG had not been published . The applicant further complained that the questions to the jury had been formulated in breach of the domestic law . The presiding judge had dismissed his request to put to the jury questions as to whether the information collected , stored and transmitted by him had constituted ORG secrets and had been received from closed sources . No questions had been put to the jury as to whether he had had intent to damage national security , whether the representatives of ORG had belonged to foreign intelligence or whether he had transmitted information which had previously been published in open sources . Nor was the latter question examined in the judgment . The applicant further argued that the trial court had had no grounds to declare the exculpatory expert reports of DATE and DATE inadmissible evidence , to reject his request for examination of ORG and PERSON as witnesses and simultaneously to refuse to declare the inculpatory expert report of DATE , which had the same procedural flaw as the former CARDINAL reports , inadmissible evidence . In his appeal the applicant relied on Articles CARDINAL , CARDINAL and DATE of the Convention for the Protection of Human Rights and Fundamental Freedoms .","In DATE the general list of jurors for ORG was published with Y. \u2019s name on it .","On DATE ORG delivered a final decision in the case . It rejected the appeal and upheld the judgment , having succinctly stated that there had been no violations of LAW on the part of the trial court , in particular in its reasoned refusal to examine experts as witnesses and to admit their reports in evidence , as well as in its formulation of questions to the jury . ORG stated that the principle of immutability of a court composition had not been violated in the case , which had been examined in compliance with the requirements of LAW . It noted that Y. had been included in the approved list of jurors of GPE . It held that the court \u2019s finding of the applicant \u2019s guilt had been based on the jury \u2019s lawful verdict and that the applicant \u2019s acts had been legally characterised in accordance with the factual circumstances established by the jury \u2019s verdict . The applicant \u2019s arguments concerning the failure to prove his guilt could not be taken into consideration as the judgment delivered as a result of the jury trial could not be appealed against and quashed on those grounds , of which the applicant had been aware .","NORP The general list of jurors of ORG ( for the LOC administrative circuit of GPE ) was published on DATE . It included Mr Y. According to the applicant , thereafter the defence obtained information that juror Mr Y. had allegedly worked for the ORG .","In DATE , after signing a clemency petition to the President of GPE in which the applicant acknowledged his guilt in the crime of which he was convicted , he was released as part of an exchange of prisoners between GPE and GPE . He was taken to GPE , where he currently resides . The applicant claims that he was coerced into acknowledging his guilt by the circumstances surrounding the exchange and that he in fact denies his guilt .","For the domestic law regulating detention during criminal proceedings see PERSON v. GPE [ ORG ] , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG DATE ... in respect of the period until DATE , and PERSON v. GPE , no . GPE , \u00a7 \u00a7 CARDINAL , DATE in respect of the period since DATE .","The LAW of the Russian Federation guarantees the right to have one \u2019s case examined in a court and by a judge whose jurisdiction to examine the case is established by law ( LAW ) . According to ORG judgment of DATE , such a law ( laws ) must contain criteria which would predetermine in which court this or that civil or criminal case falls to be examined . This would allow the court ( judge ) , parties and other participants in the proceedings to avoid uncertainty in this question . Such uncertainty would have otherwise to be obviated by way of an enforcement decision , that is , the discretionary power of an enforcement body or official . In the latter case jurisdiction would not be determined on the basis of law .","The LAW provides that judges are independent and that they are subordinate only to LAW and the federal law ( LAW .","The Code of Criminal Procedure of GPE in force since DATE ( Law no . CARDINAL of DATE , the \u201c CCrP \u201d ) , provides as follows :","\u201c CARDINAL . The case must be examined by CARDINAL and the same judge or by a court bench in one and the same composition .","If CARDINAL of the judges is no longer able to take part in the hearing he must be replaced by another judge , and the court hearing must restart from the beginning . \u201d","Law no . ORG of DATE \u201c On ORG in the NORP Federation \u201d provides :","The ORG President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by LAW , carries out the following functions :","( CARDINAL ) organises the court \u2019s work ;","...","( CARDINAL ) NORP distributes duties between the President \u2019s deputies and , in accordance with the procedure provided for by ORG , between the judges ; ...","The instruction on ORG internal document management , in force at the material time , provided that the court President was responsible for the court \u2019s clerical and office management ( Instruction no . CARDINAL of ORG at ORG of GPE of DATE ) .","As a matter of common practice , a court President distributed cases lodged with a court between the judges of that court .","Under paragraph CARDINAL of Resolution no . CARDINAL of ORG of DATE , setting out practice directions on the application of the Code , the replacement of a presiding judge in jury trials invalidates the trial which has taken place up to that moment and calls for the replacement of a jury because , under LAW of the Code , the obligation to form a jury is imposed on the presiding judge .","DATE of the ORG reads as follows :","\u201c ...","NORP In courts of first instance , criminal cases shall be examined by the following compositions :","...","( CARDINAL ) At the defendant \u2019s request , the judge of a federal court and a jury of CARDINAL persons shall examine cases concerning the crimes set out in DATE Code .... \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW includes , inter alia , a crime punishable under LAW .","A secretary or a judge assistant selects candidate jurors from the court \u2019s DATE list of jurors by drawing them at random ( Article CARDINAL of the Code ) .","The procedure for drawing up the list of jurors of GPE for DATE was regulated by LAW on LAW of DATE , as amended on DATE , and the GPE Mayor \u2019s instruction of DATE . The initial lists of jurors were drawn up by the GPE district councils , informing the public and providing the public with access to the lists with a view to enabling them to request their inclusion or exclusion from the lists . After necessary corrections the lists were then amalgamated by the prefectures of the GPE administrative circuits and further served as the basis for drawing up separate lists of jurors for ORG and ORG by ORG . The lists were to be approved by the GPE mayor and forwarded to those courts . CARDINAL DATE was fixed as a time - limit for submitting ORG lists , approved by the Mayor , to ORG and ORG . The lists were to be published . Under paragraph CARDINAL of Recommendations of the ORG Minister of Justice of DATE concerning the procedure for drawing up lists of jurors , it was desirable to publish general and reserve lists of jurors in the regional press not DATE before sending them to the relevant court . The publication had to explain to citizens their rights to request regional councils to include or exclude them from those lists .","One and the same person can not sit as a juror more than once a year ( Article CARDINAL of the ORG and LAW of LAW ) .","NORP Parties to proceedings can challenge candidate jurors with or without reasons , twice in the latter case ( LAW CCrP ) . The parties can ask them questions for the purpose of uncovering circumstances which would prevent them from sitting in a case . The presiding judge explains to candidate jurors their duty to answer questions put to them truthfully ( LAW ) .","Under LAW , before the jurors take the oath it is open to the parties to proceedings to plead that the jury as a whole might be unable to deliver an objective verdict in view of the specific features of a case . After hearing the parties the presiding judge delivers a decision . If the request is found to be justified the jury will be dismissed .","Each juror takes an oath prior to the examination of a case . The oath reads as follows ( LAW ) :","\u201c In assuming the responsible duties of a juror , I solemnly swear to fulfil them honestly and impartially , to take into consideration all the evidence examined in court , both which incriminates the defendant and which exonerates him or her , to decide the criminal case on the basis of my inner conviction and conscience , not acquitting the guilty and not convicting the innocent , as befits a free citizen and fair person . \u201d","The presiding judge reads the text of the oath , after which each juror replies when called by the judge : \u201c I swear . \u201d","Under Articles CARDINAL \u00a7 CARDINAL and CARDINAL of the ORG , jurors take decisions on the following questions which are put to them after examining the evidence and hearing the parties :","\u2013 has it been proven that the acts of which the culprit is accused were committed ;","\u2013 has it been proven that those acts were committed by the culprit ;","\u2013 is the culprit guilty of committing those acts ?","Jurors can also be asked particular questions about , inter alia , circumstances which may have an impact on the issues of guilt or may entail the culprit \u2019s exemption from liability . No questions requiring legal assessment can be put to jurors .","If the culprit is found guilty the jurors also state whether the culprit deserves leniency .","The questions to the jury are formulated in writing by the presiding judge . The parties can make their observations on the questions and propose new questions ( LAW ) .","Questions other than those to be decided by jurors , as stated above , are decided by the presiding judge alone without ORG participation ( Article CARDINAL \u00a7 CARDINAL of the CCrP ) .","Issues of inadmissibility of evidence are examined without ORG participation . After hearing the parties the presiding judge takes a decision to exclude evidence which he or she found inadmissible ( LAW CARDINAL and CARDINAL of the CCrP ) .","NORP Before the jury retires to the deliberation room the presiding judge gives directions ( LAW ) . The presiding judge sums up the charges ; informs them about the applicable criminal law provisions ; sums up the evidence examined at the trial and the positions of the prosecution and the defence ; and explains the rules of assessment of evidence in their entirety , the principle of presumption of innocence , the rule of interpreting insoluble doubts in favour of the accused , the rule that their verdict must only be based on evidence examined at the trial and that no evidence has predetermined force for them . The presiding judge further brings ORG attention to the fact that the culprit \u2019s refusal to give statements at the trial should not be interpreted as evidence of guilt . The presiding judge explains the rules of deliberations and voting . The jurors are reminded of the oath taken by them .","No one except the jurors may be present in the deliberation room ( Article CARDINAL of the CCrP ) . The questions put to the jurors are answered by way of affirmation or negation , to be supplemented by a word or a phrase to make the meaning of the answer precise ( LAW of the CCrP ) .","If the jury delivers a guilty verdict the trial continues without the jurors to examine , inter alia , circumstances relevant to the legal characterisation of the acts committed by the culprit , sentencing and determination of a civil claim . The parties\u2019 submissions may concern any legal issues to be resolved in a judgment ( ORG CARDINAL - CARDINAL of the CCrP ) which will be delivered by the presiding judge on the basis of the jury \u2019s verdict . The presiding judge may deviate from the guilty verdict and acquit the culprit if he or she finds that the acts committed by the culprit do not contain the elements of a crime . The presiding judge may dissolve the jury and order a fresh examination of the case by a new composition of the court if he or she finds that the event of a crime or the culprit \u2019s participation in a crime have not been established and that the guilty verdict has therefore been delivered in respect of an innocent person and there are sufficient grounds for his or her acquittal ( Article CARDINAL of the CCrP ) . The jury \u2019s opinion that the culprit deserves leniency is binding on the presiding judge ( Article CARDINAL of the CCrP ) .","A higher court which examines the case on appeal may not quash or change a judgment delivered as a result of a jury trial on the ground of inconsistency between the conclusions reached by the trial court in its judgment and the facts established by that court . Permissible grounds for quashing or changing a judgment in such a case are violation of the procedural law , misapplication of criminal law , and unfairness of the sentence imposed ( LAW ORG ) .","Article CARDINAL \u00a7 CARDINAL of the LAW provides :","\u201c Everyone has the right to freely search , obtain , impart , generate and disseminate information by all lawful means . The list of information constituting ORG secrets shall be defined by a federal law . \u201d","ORG held that this provision was motivated by the need to defend the sovereignty of GPE and to ensure its defence and security , and is in accord with LAW , which permits restrictions of human rights and freedoms and , therefore , the right to information for the above - mentioned purposes . It follows that the legislature may establish a list of information which can be classified as ORG secrets and regulate its declassification and protection , as well as admission and access to such information . Under LAW , its provisions are binding within and outside the territory of GPE for , inter alia , nationals of GPE who have accepted obligations or are obliged in view of their status to enforce the requirements of the NORP legislation on ORG secrets . The duty to observe the legislation on ORG secrets flows from the general legal duty to observe the LAW and the laws ( LAW ) . Thus , section CARDINAL of LAW is in conformity with LAW ( the Constitutional Court \u2019s judgment of DATE ) .","LAW of the Russian Federation of DATE provides :","\u201c High treason , i.e. espionage , disclosure of state secrets or assistance otherwise provided to a foreign state , a foreign organisation or their representatives for their subversive activities undermining the external security of GPE , committed by a NORP national , shall be punishable by DATE imprisonment with or without confiscation of property . \u201d","Section CARDINAL of the \u201c LAW \u201d ( RF Law no . CARDINAL ) of CARDINAL DATE , as amended on DATE , provided :","\u201c The following information shall be classified as ORG secrets :","( CARDINAL ) information in the military sphere :","On the content of strategic and operational plans , documents of the combat department on the preparation and conduct of operations , and on the strategic , operational and mobilisation deployment of ORG , and of other troops , military formations and units as envisaged in LAW \u201d , on their combat and mobilisation readiness , on the creation and use of mobilisation resources ;","On plans to develop ORG , other troops of GPE , on guidelines on the development of armaments and military hardware , on the content and results of special programmes , research and experimental design projects on the creation and modernisation of models of armaments and military hardware ;","On the development , technology , production , output volume , storage and recycling of nuclear munitions , their components , fissionable materials used in nuclear munitions , on the technical systems and ( or ) methods for protecting nuclear munitions from unauthorised use , and also on nuclear power units and special physical installations for defence purposes ;","On the tactical - technical specifications and potential for combat use of models of armaments and military hardware , on the properties , formulae or production technology of new forms of rocket fuel or explosives for military use ;","On the disposition , names , degree of readiness , defence capabilities of operational and especially important facilities , their designs , construction and exploitation , and also on the assignment of land , underground areas and bodies of water for these facilities ;","On the disposition , actual names , organisational structure , weapons , and numerical strength of troops and the status of their combat support systems , and also on militarypolitical and ( or ) operational conditions ;","... \u201d","Under section CARDINAL of LAW , the ORG President approves , upon the ORG \u2019s submission , the list of information constituting ORG secrets . Presidential Decree no . ORG of CARDINAL DATE defined the list of military information classified as ORG secrets as follows :","Information revealing strategic plans for the use of troops , operational plans , battle management documents , documents on bringing troops to various levels of combat readiness .","Information on the strategic and operational deployment of troops .","Information on construction plans , development , numerical strength , effective combat strength or quantity of troops , their combat readiness , and also on militarypolitical and ( or ) operational conditions .","Information revealing the status of operational ( combat ) training of troops , support services for their activities , and the composition and ( or ) status of command and control systems .","Information on the mobilisation deployment of troops , their readiness for mobilisation , the creation and use of mobilised resources , the control and command system for mobilisation deployment and ( or ) on the potential for augmentation of troop strength with personnel , armaments , military hardware and other material and financial resources , and also military transport movements .","Information revealing the guidelines , long - term forecasts or plans for the development of armaments and military hardware , the content or results of special programmes and research and experimental design projects for the creation or modernisation of models of armaments or military hardware , and their tactical and technical specifications .","Information revealing the design and construction guidelines , production technology , isotope composition , combat , physical , chemical or nuclear characteristics , and procedure for use or operation of armaments and military hardware .","Information revealing the production capacity and actual or projected data on the production and ( or ) shipment ( in physical terms ) of bacteriological agents or medical protective means .","Information on the development , technology , production , output volume , storage and ( or ) recycling of nuclear munitions and ( or ) their components , fissionable materials , nuclear power units , special physical installations for defence purposes , and technical systems and ( or ) methods for the protection of nuclear munitions from unauthorised use .","Information revealing the content of previously completed projects concerning weapons of mass destruction , the results of such projects , and also information on the composition of the model and ( or ) receptor , production technology or equipment of products .","Information on the design , installation , operation or security support of nuclear installations .","Information revealing the achievements of nuclear science and engineering with important defence and economic implications or determining a qualitatively new level of potential for the creation of armaments and military hardware and ( or ) fundamentally new articles and technologies .","Information revealing the properties , formulae or production technology of rocket fuels , and also ballistic propellants , explosives or military demolition explosives , and also new alloys , special liquids , new fuels for armaments and military hardware .","Information revealing the disposition , actual names , organisational structure , weapons and numerical strength of troops where publication of such information is not foreseen by the international obligations of GPE .","Information on the use of the infrastructure of GPE to safeguard the ORG \u2019s defensive capabilities and security .","Information on the disposition , names , level of readiness or protection of operations facilities not covered by GPE commitments under international treaties , on the selection , assignment of parcels of land , underground areas or bodies of water for the construction of these facilities , and also on planned or current exploratory , design or other projects for the establishment of such facilities . The same information in relation to the special facilities of government agencies .","Information on the use or developmental prospects of the coordinated communications network of GPE to safeguard the ORG \u2019s defensive capabilities and security .","Information revealing the distribution or use of radio frequency bands of military or special electronic equipment .","Information revealing the organisation or functioning of all forms of communication and of radar or wireless troop support services .","Information revealing the content , organisation or results of the main types of activity of the GPE border troops ( FPS ) and the organisation of the defence of the state borders , exclusive economic zone and continental shelf of GPE or those of GPE ORG .","Information revealing the guidelines for the development of dual - purpose equipment and technology , the content and results of special programmes , research and ( or ) experimental design projects on the development or modernisation of such equipment or technology . Information on the use of dual - purpose resources and technology for military purposes .","Information on the prospects for the development and ( or ) use of GPE space infrastructure to safeguard the ORG \u2019s defensive capabilities and security .","Information revealing the status and ( or ) guidelines of hydronautic projects to safeguard ORG defence and security . \u201d","ORG Special Rapporteur on ORG , PERSON , in his report on his mission to GPE ( DATE ) , published on DATE , stated :","\u201c CARDINAL . The distribution of cases among the judges is left to the discretion of the court chairperson . It appears that there is no system for ensuring that cases are allocated according to objective criteria . Instances have been reported in which more sensitive cases are allocated to \u2018 certain\u2019 judges or where a criminal case was transferred to another judge during the ongoing trial because the judge in question refused to be influenced .","...","In order to assist GPE in pursuing and renewing efforts in the judicial reform process , the Special Rapporteur recommends that :","...","To enhance the independent role of judges :","...","A mechanism be established to allocate court cases in an objective manner . \u201d","In its Resolution CARDINAL ( DATE ) entitled Allegations of politically motivated abuses of the criminal justice system in ORG member states adopted on DATE , ORG of ORG stressed the fundamental importance , for the rule of law and the protection of individual freedom , of shielding criminal justice systems throughout LOC from politically motivated interference . It held as follows :","\u201c CARDINAL ... True independence of judges also requires a number of legal and practical safeguards , including :","...","NORP the independence of judges vis - \u00e0 - vis court chairpersons ... shall be protected , inter alia , by the allocation of cases on the basis of predetermined , objective systems , by strict rules protecting judges from being taken off individual cases without reasons specifically defined by law ... \u201d","The ORG noted , inter alia , that in the GPE court chairpersons have disproportionate power over other judges , in particular because of their power to decide on the distribution of cases ( paragraph CARDINAL . ) . The ORG called on GPE to :","\u201c CARDINAL.CARDINAL.CARDINAL . strengthen the system of allocation of cases among the courts and to individual judges or sections within the courts , in such a way as to prevent any \u201c forum shopping \u201d by the prosecutor \u2019s office and the exercise of any discretion in this respect by the court chairpersons ;","promote the development of a spirit of independence and critical analysis in legal education in general and in initial and continued training of judges and prosecutors in particular , and to robustly sanction any local , regional or federal officials that continue to try to give instructions to judges , as well as any judges who seek to obtain such instructions ; ... \u201d"],"violated_articles":["5","6"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96278","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2009,"docname":"HORNAK v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant challenged several decisions taken by the general meeting of a limited liability company on DATE .","The members of the chamber of ORG to whom the case fell to be examined requested to be excluded . They explained that they had a negative opinion of the applicant in view of his inappropriate behaviour in other sets of proceedings . On DATE ORG refused to exclude those judges .","On DATE ORG discontinued the proceedings as the applicant had not paid court fees within the time - limit set .","On DATE it quashed that decision as the applicant had subsequently paid the fees .","On DATE ORG dismissed the applicant \u2019s action .","On DATE ORG quashed the first - instance judgment and remitted the case to ORG .","In DATE the file was transferred to ORG several times in order to decide on ( i ) the applicant \u2019s requests to exclude the judges from dealing with the case and to transfer the case to another court , and ( ii ) the judges\u2019 requests to be excluded from the examination of the case , inter alia on the ground that they and the applicant were involved in litigation .","On DATE ORG found in the applicant \u2019s favour . The judgment was served on him on DATE .","On DATE the defendant appealed .","On DATE ORG found that ORG had not violated the applicant \u2019s right to a hearing within a reasonable time . The case was not complex , but the applicant by his conduct had significantly contributed to the length of the proceedings in that ( i ) he had not paid the court fees on time , ( ii ) he had repeatedly challenged judges and had requested that the case be transferred to a different court and ( iii ) he had not appeared before ORG on DATE . As to the conduct of ORG , there was a single delay DATE and DATE . Otherwise ORG had proceeded with the case in an appropriate manner .","The file was transferred to ORG on DATE .","On DATE ORG found against the applicant . The judgment became final on DATE .","On DATE the applicant filed an action with ORG . He challenged the validity of decisions which the general meeting of a limited liability company had taken on DATE .","On DATE the President of ORG asked ORG to exclude CARDINAL ORG judges from examination of the case . She argued that the judges were biased because the applicant , who had been a party to numerous sets of proceedings before the same ORG ( for example the proceedings mentioned under the point A above ) , had behaved in an arrogant manner towards the judges in those proceedings . She also stated that the applicant had lodged an action for protection of his integrity against those judges . On DATE ORG exempted the judges from examination of the case .","Subsequently the newly appointed judges also requested , on CARDINAL occasions , to be excluded from examination of the case . ORG examined the requests for the total period of DATE and did not exempt the judges from dealing with the case .","On DATE ORG asked the applicant to pay the court fees within DATE . As he had failed to do so , the proceedings were discontinued on DATE . After the decision to discontinue the proceedings had been served on the applicant , he paid the fees .","On DATE ORG found that ORG had not violated the applicant \u2019s right to a hearing within a reasonable time . ORG noted that the applicant had been obliged to pay the fees at the time of filing his action . He had done so after ORG had decided to discontinue the proceedings . It concluded that the applicant was not genuinely interested in having the point in issue determined in the proceedings complained of and that his complaint about delays in those proceedings was therefore devoid of substance .","On DATE ORG quashed its decision of CARDINAL DATE noting that the applicant had paid the court fees .","ORG found against the applicant on DATE . In the absence of an appeal , the judgment became final on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23825","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2004,"docname":"TIMPERI v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant was employed by the city of GPE as an adviser in housekeeping , giving for instance cooking courses . Her employer made a report to the police , alleging that she had embezzled money .","The public prosecutor brought charges against the applicant for aggravated embezzlement etc . during the period DATE and DATE , amounting to ORG ( EUR CARDINAL,CARDINAL ) . The complainant , the city of GPE , claimed damages . The applicant denied the charges as well as the other claims .","ORG k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) heard some twenty witnesses during DATE . On DATE ORG , composed of a professional judge and CARDINAL laymen , convicted the applicant and sentenced DATE imprisonment . She was ordered to pay damages amounting to ORG plus interest and legal costs . Insofar as the sentence was concerned , the judgment was not unanimous , as it was based on the opinion of CARDINAL lay judges , whereas the professional judge in his dissenting opinion considered that DATE and DATE suspended imprisonment was a sufficient sanction .","At this point , the public prosecutor ordered a further pre - trial investigation to be carried out as to what information the applicant 's superiors and other employees of the complainant had in DATE concerning income allegedly unaccounted for .","Subsequently , the applicant learned that lay judge T. , who had examined the case in ORG , was an employee of the complainant in her case .","The applicant appealed to ORG ( hovioikeus , hovr\u00e4tten ) , denying the charges . She argued that lay judge ORG had been disqualified from deciding her case for the aforementioned reason . She also requested an oral hearing with a view to adducing more documentary evidence , rehearing a witness and hearing new witnesses . According to the applicant , the witness statements before ORG were not properly entered into TIME and only statements supporting ORG conclusions were included .","On DATE ORG gave judgment , finding that lay judge T. had not been disqualified and , having listened to the audio tapes from ORG hearings and read the new pre - trial report , that the proposed new evidence would not clarify the matter further . Thus , holding an oral hearing was manifestly unnecessary . ORG upheld ORG judgment .","The applicant requested leave to appeal to ORG , still denying the charges and requesting , at any rate , that her sentence be reduced . She maintained that lay judge PERSON had been disqualified from deciding her case . She also requested an oral hearing before ORG .","On DATE ORG granted the applicant leave to appeal .","ORG gave judgment on DATE ( ORG CARDINAL ) . As to the alleged disqualification , ORG found that lay judge PERSON , who at the relevant time had worked as a special teacher employed by the city of GPE , had not lacked impartiality . ORG , referring to the relevant provisions in domestic law , gave the following reasoning for its decision :","In assessing whether a judge is disqualified , attention has to be paid also to the provisions in LAW and the case - law of ORG . In light of ORG case - law , a judge must not hold a preconception or a have a prejudged view of the case in question or have a desire to favour one of the parties ' interests ( subjective impartiality ) . In addition , all legitimate doubts as to the judge 's and the tribunal 's impartiality must be eliminated ( objective impartiality ) . In assessing impartiality from the last - mentioned point of view , attention has to paid to whether the judge 's previous activities , his relations to the parties or the composition of the court from an objective point of view give a party reason to believe that impartiality is jeopardized .","No one has indeed argued that lay judge T. would have been disqualified on subjective grounds . The question is what position should be taken on the fact that ORG was an employee of the complainant , the city of GPE . A party , such as the defendant in criminal proceedings , may understandably be worried , if the composition of ORG includes a layman employed by the opposing party . Some weight may be given to the party 's opinion of partiality based on employment , but what is decisive is whether the suspicion can be considered to be objectively justified . In assessing the case from this point of view ORG supposes that a layman can not be considered disqualified merely on the ground that he is employed by a party to the proceedings . Attention has to be paid on the one hand to the size of the employer and the importance of the case in question to the employer and on the other hand to the character of the employee 's functions . In the present case , by DATE , the city of GPE had CARDINAL employees , including both permanent and temporary staff . Lay judge T. , in his capacity as a temporary special teacher , was not part of the city 's governing body nor had he any commission of trust . Neither was he involved in the housekeeping service in question . T. had a permanent post as a school welfare officer within the ORG federation of municipalities vocational school , to which he could return when his temporary post ended . According to PERSON , special attention was paid to the guarantees of an impartial trial when the lay judges were chosen to sit in on the present case . In these circumstances , PERSON 's doubts as to the impartiality of the court can not be considered to be justified from an objective point of view .","Thus , ORG finds that the afore - mentioned relationship between ORG and the city of GPE , the complainant in these criminal proceedings , is not such that it could justifiably call his independence and impartiality as a lay judge of ORG into question . Thus , ORG can not be considered to be disqualified .","ORG furthermore , noting that ORG had found that holding an oral hearing would not have clarified the matter , saw no reason to differ . It upheld the applicant 's conviction , but reduced the sentence to DATE suspended imprisonment .","LAW , LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ) , as in force at the material time , provided in relevant part :","\u201c ... The following shall be the legal grounds for disqualification [ of a judge ] : when the judge is related by blood or marriage to CARDINAL or the other party in a manner where marriage is prohibited under LAW , including cousinship by blood although not by marriage ; when the judge is the opposing party or a public opponent of a party ; when the judge or his or her relative here listed has an interest in the case , when they stand to obtain particular benefit or suffer particular loss as a result of it ; when the judge has served as a judge in the case in another court ; when the judge has served as an advocate or a witness in the case ; or when the judge has previously , on the orders of a court , decided a part of the case ; or when the judge has a similar case pending before another court . ... \u201d","According to the LAW section CARDINAL , the provisions of law concerning disqualification of a judge apply also to laymen ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71525","languageisocode":"ENG","respondent":"ISL","branch":"ADMISSIBILITY","date":2005,"docname":"GUNNARSSON v. ICELAND","importance":3,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in the same town .","On DATE the newspaper NORP published an article amidst a heated public debate in the wake of the acquisition of a large part of the shares of ORG by a group , ORG in GPE , and strong criticism of leaders of ORG , of which the applicant was the Secretary General . The author of the article , an Advocate named PERSON , had advanced the view that members of the general public were not treated equally when at the hands of ORG leaders . He recounted events that had occurred in DATE when he , PERSON and several others , had purchased shares in the ORG \u00fatvarpsf\u00e9lagid ( ORG , hereinafter referred to as \u201c the ORG \u201d ) . The acquisition created a new shareholder majority in the ORG . Following a change in the ORG \u2019s ORG , the ORG had withdrawn a loan offer to , and had in fact broken off with , the ORG . The article further stated that the ORG \u2019s Managing Director and the former Chairperson of its ORG had close family ties and that the Chairperson was a member of ORG . The article then went on ( the CARDINAL passages in italics were the subject of defamation proceedings brought by the applicant ) :","\u201c At this point , we approached PERSON . The Chairperson of ORG at the time was [ the applicant ] , Secretary General of ORG and Chairperson of ORG , which is concerned with the affairs of independent Broadcasting stations . On DATE , the ORG received a letter from ORG , notifying that it declined to do any business with the ORG . No explanations were given , but those of us [ the respondent and other shareholders ] who represented the ORG in the negotiations with the ORG were told that [ the applicant ] was opposed to ORG doing business with a company where Mr J. O. was involved . No formal negotiations took place with the other ORG owned bank , ORG , as we were told in informal discussions that it could not take up business with the ORG as some of its shareholders who had lost their majority holdings in the ORG at the share ORG meeting in DATE were customers of the bank and might be offended if the bank were to assist the ORG or take up business relations with the ORG . Fortunately there were savings banks in GPE at the time who regarded business with the ORG as being a positive and lucrative option . Here , decisions regarding business of ORG were made on the basis of interests of the saving banks , not on the basis of what was best for ORG and acceptable to the leaders of ORG . \u201d","The applicant subsequently brought defamation proceedings against the author of the article , requesting - in addition to compensation - that the following CARDINAL statements be declared null and void :","( CARDINAL ) \u201c No explanations were given , but those of us [ the respondent and other shareholders ] who represented the ORG in the negotiations with the ORG were told that [ the applicant ] was opposed to ORG doing business with a company where PERSON was involved . \u201d","( CARDINAL ) \u201c Here , decisions regarding business of ORG were made on the basis of interests of the saving banks , not on the basis of what was best for ORG and acceptable to the leaders of ORG \u201d .","The applicant categorically denied as false the allegation that he had played any part in the decision by ORG ( hereinafter \u201c the ORG \u201d ) and this was supported by CARDINAL managing directors . The applicant pointed out that members of ORG normally did not involve themselves in the ORG \u2019s lending activities . He considered the allegations as defamatory in that they accused him of allowing interests other than those of the ORG determine his position regarding the ORG \u2019s business with individual companies and of unlawful conduct , in breach of general business rules and ethics and administrative practice .","By a judgment of CARDINAL DATE ORG found for the respondent and against the applicant . The latter appealed but by a judgment of DATE ORG rejected his appeal .","ORG observed that the author of the disputed article had made no attempt to prove that the applicant had been involved in the decision in question . However , he had submitted that the employees of the ORG who had been responsible for assessing the ORG \u2019s credit rating had told him and his associates about the applicant \u2019s involvement . The documentary evidence provided no indication that the refusal of credit could not have been based on legitimate business reasons . The take over by the new majority shareholders had given rise to considerable struggle resulting in some uncertainty about the ORG \u2019s future but everything indicated that things had worked out well .","Turning to the impugned statements , ORG noted that allegation ( CARDINAL ) did not specifically address the applicant . As to allegation ( CARDINAL ) , it observed that the remark did not refer to the ORG \u2019s decision - making process but only to informal explanations offered by its employees \u2013 no formal explanation had actually been provided for its withdrawal of the offer of credit . The respondent could only be required to prove what the representatives of the company had been told , by providing statements from the bank \u2019s employees . It would not be sufficient for him merely to provide statements by his associates ; he would have to summon the relevant bank employees to give oral evidence before the court . The respondent had refused to do so in order to avoid embarrassing the employees concerned , which was understandable in view of the statutory confidentiality rules in LAW applicable to bank employees and the fact that they might be reluctant to give evidence about conduct regarded as embarrassing or even illicit by a member of ORG . Having regard in particular to the context in which the impugned remarks had been made , the applicant \u2019s interest in having them declared null and void could hardly be regarded as sufficient to require the ORG \u2019s employees to give evidence . In the view of ORG , the respondent could not be required to prove the truth of the disputed remarks as this would be unreasonably difficult for him to do . Considering the applicant\u2019 prominent position within ORG and that he served on ORG and as Chairperson of ORG , nominated by ORG and elected by ORG , as well as the requirement that his work in these areas be independent from his role as Secretary General of the ORG , he ought to accept public discussion on these connections . Cautiousness should be observed in any attempts to limit such discussion .","In a dissenting opinion ORG Justice Mr PERSON stated inter alia that it could hardly have been difficult for the respondent author to summon the bank employees to give evidence . Not only had the plaintiff asked him to do so but it could also not be maintained that the bankers would thereby act in breach of confidence contrary to section CARDINAL of GPE . It had not been shown that requiring proof from the respondent would amount to an unreasonable burden being placed on him ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114032","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2012,"docname":"CASE OF C.N. AND V. v. FRANCE","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);Pecuniary and non-pecuniary damage - award","judges":"Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger","text":["The applicants , ORG and ORG , are NORP nationals who were born in DATE and DATE respectively in GPE . They are sisters .","The facts of the case , as submitted by the parties , may be summarised as follows .","C. N. ( \u201c the first applicant \u201d ) arrived in GPE in DATE , at DATE . PERSON ( \u201c the second applicant \u201d ) and their CARDINAL younger sisters arrived in GPE in DATE . The second applicant was DATE at the time . Their arrival was arranged by their aunt , PERSON , wife of PERSON , a national of GPE .","The applicants left their country of origin , GPE , following the civil war in DATE , during which their parents were purportedly killed . On a trip to GPE , PERSON organised a family council . According to a record of the meeting dated DATE , it was decided to give guardianship and custody of the applicants and their younger sisters to PERSON and PERSON The family considered that the couple , who lived in GPE , were the only members of the family \u201c capable of taking care of [ the applicants ] and giving them a proper education and upbringing \u201d .","Mr M. , a former government minister of GPE , was a ORG staff member and , as such , enjoyed diplomatic immunity . The spouses owned a CARDINAL - bedroom detached house in GPE d\u2019Avray in ORG d\u00e9partement . They had CARDINAL children , CARDINAL of whom was disabled .","When they arrived in GPE the applicants were housed in what they described as a poorly heated unconverted cellar in the basement of the house . The Government pointed out that it was not a cellar as such , but a basement room with a door opening into the garden and a window . The room contained a boiler , a washing machine and QUANTITY beds . At the beginning of their stay the applicants shared the room with their CARDINAL younger sisters .","At the same time , PERSON and PERSON contacted an evangelical church with a view to placing the applicants\u2019 CARDINAL younger sisters with foster families , except in DATE . They were in fact taken in by CARDINAL families in DATE . In DATE CARDINAL of the CARDINAL sisters went to spend DATE with PERSON and PERSON ; the foster family , who had parental authority over them , had to take legal action to get them back in DATE .","The applicants said that as soon as they arrived they had been made to do all the housework and domestic chores necessary for the upkeep of the house and the PERSON family of CARDINAL . They alleged that they had been used as \u201c housemaids \u201d . The first , older applicant said that she had to look after the family \u2019s disabled son and do the gardening . They were not paid for their work or given any DATE off .","The applicants affirmed that they had had no access to a bathroom and only an unhygienic makeshift toilet at their disposal . The Government submitted that they were not denied access to the bathroom , but that it was limited to certain times of day . The applicants added that they were not allowed to eat with the family . They were given only pasta , rice and potatoes to eat , and occasionally leftovers from the family \u2019s meat dishes . They had no leisure activities .","The second applicant was a pupil in the GPE d\u2019Avray primary school from DATE , then in the special general and vocational learning department of a GPE secondary school from DATE . As a non - NORP speaker she had had integration difficulties which she said increased her isolation . Her aunt nevertheless objected to her seeing the school psychologist as suggested by the teaching staff . Nor was the second applicant given any additional help in learning to read LANGUAGE , allegedly because this would have meant paying for her to have school meals . In spite of these difficulties she did well at school . When she got home from school she would have to do her homework then help her sister with the domestic chores .","The first applicant was never sent to school or given any vocational training . She spent DATE doing housework and looking after her disabled cousin . The Government pointed out that the applicant had admitted in the course of the subsequent criminal proceedings that she had in fact refused to go to school .","On DATE ORG welfare department submitted a report on children in danger to the GPE public prosecutor according to which there was a risk that the children were being exploited \u201c to do household chores among other things \u201d . Following an investigation by the police child protection services , it was decided not to take any further action .","The first applicant turned DATE on DATE . She contended that PERSON and PERSON did nothing to legalise her situation vis - \u00e0 - vis the authorities . According to the Government , her situation was not illegal because she was included in her aunt \u2019s diplomatic passport .","From DATE the aunt refused to pay the second applicant \u2019s bus fare to school . The applicant explained that when her uncle bought her a bus pass behind his wife \u2019s back , her aunt got very angry and threatened to hit her . When she had no bus pass the second applicant had either to walk to school , which was TIME walk from where she lived , or to take the bus without a ticket . The applicant said that her aunt also refused to pay for her to have school meals .","In DATE the second applicant , after going DATE without urgent dental treatment , had had to go to a dentist near the school at her own initiative . She had never received the orthopaedic treatment the dentist prescribed . As to the first applicant , she alleged that she had been hospitalised CARDINAL times under her cousin \u2019s name after being beaten by CARDINAL of the of the boys in the family .","The applicants further alleged that they had been physically and verbally harassed on a DATE basis by their aunt , who regularly threatened to send them back to GPE to punish them and made disparaging remarks about their late parents . The second applicant claimed that once , when she was sick in bed , her aunt had threatened to hit her with a broomstick to make her clean the kitchen .","On DATE the association \u201c Enfance et Partage \u201d drew the attention of the PERSON public prosecutor \u2019s office to the applicants\u2019 situation , stating that the conditions they lived in DATE in the insalubrious , unheated basement of the PERSON family \u2019s house DATE were contrary to human dignity , that the first applicant was used as a \u201c housemaid \u201d and had to look after the family \u2019s disabled eldest son , that their aunt refused to buy the second applicant a travel card or pay for her to have school meals , and that both girls complained of ill - treatment and physical aggression by their aunt . The applicants ran away from the house DATE and were taken into the association \u2019s care .","On DATE the PERSON public prosecutor \u2019s office applied to the Director General of ORG to have PERSON diplomatic immunity lifted .","On DATE that request was granted , exceptionally , as part of an investigation into allegations of ill - treatment . The immunity of PERSON wife was also lifted .","On DATE a preliminary investigation was opened on the instructions of the PERSON public prosecutor \u2019s office .","On DATE the police interviewed the CARDINAL applicants , who confirmed the terms of the report by \u201c Enfance et Partage \u201d . They did , however , explain that their uncle had tried to temper his wife \u2019s behaviour . The second applicant said that when their situation was first reported in DATE she had not dared to tell the police the truth for fear of reprisals from her aunt .","That DATE the association \u201c Enfance et Partage \u201d gave the police photos taken by the applicants in DATE of the basement they lived in . The photos confirmed the deplorable conditions of hygiene and insalubrity they lived in .","On DATE Mr M. was interviewed by the police . He said he had done nothing wrong and that he had helped the applicants by bringing them to GPE . He told them that his wife , PERSON , had left for GPE on DATE . He also complained about an article in the press on DATE making accusations against him and his wife .","The police established that , contrary to what Mr PERSON had told them , his wife had gone back to GPE on DATE , DATE after the article appeared in the press .","Mr M. denied the investigators access to his house , alleging that his lawyer was not available . He added that renovation work was being done on the house .","On DATE a judicial investigation was opened against Mr and PERSON for degrading treatment ( Articles CARDINAL - CARDINAL and CARDINAL of LAW ) and against PERSON for wilful violence on a child DATE , by a person in a position of authority , not entailing unfitness for work for DATE . An arrest warrant was issued against PERSON and Mr PERSON was placed under judicial supervision .","The applicants joined the proceedings as civil parties .","On DATE and CARDINAL DATE the applicants were heard by the investigating judge . They confirmed their previous statements and added that their situation at the home of PERSON and PERSON had gradually deteriorated . The second applicant told the judge that at the time of the first report and investigation in DATE she had said nothing to the police because \u201c things were not [ yet ] all that bad \u201d with her aunt ( a fact confirmed by the first applicant at a later hearing on DATE ) . The applicants emphasised the leading role played by their aunt , who had no qualms about hitting them and waking them up in the middle of the night if there was the slightest problem . The first applicant said she had even had to sleep outside the house TIME . The applicants confirmed that their uncle had tried to smooth things over , but he was frequently away from home . When present he would often try to reason with his wife , and had even paid their bus fares or bought them clothes without his wife knowing .","On DATE Mr M. was charged with infringement of human dignity under Articles CARDINAL - CARDINAL and CARDINAL of LAW .","On DATE the results of the medico - psychological examination of the CARDINAL applicants ordered by the investigating judge were submitted . They revealed that the applicants showed no signs of serious psychological disorders or psychiatric decompensation , but that the psychological impact of what they had experienced was characterised by mental suffering , combined , in the case of the first applicant , with feelings of fear and a sense of abandonment , as the threat of being sent back to GPE was synonymous in her mind with a threat of death and the abandonment of her younger sisters . As to the second applicant , the report stated that being sent back to GPE was felt to be \u201c even worse \u201d than living with PERSON and PERSON","On DATE and DATE the investigating judge noted that PERSON had twice failed to appear . She explained that she had been in GPE . She was not heard until DATE .","Investigations carried out at the home of PERSON and PERSON at the judge \u2019s request revealed that the basement of the house had been completely refurbished after the applicants left .","On DATE the investigating judge at the PERSON tribunal de grande instance ordered PERSON committal for trial before the criminal court on charges of wilful violence on a child DATE , by a person in a position of authority , not entailing unfitness for work for DATE ( an offence punishable under LAW of LAW ) in respect of the second applicant , and on charges of subjecting a person who is vulnerable or in a position of dependence to working conditions ( in respect of the first applicant ) or living conditions ( in respect of both applicants ) incompatible with human dignity ( offences punishable under Articles CARDINAL - CARDINAL and CARDINAL of LAW ) . In the same order , the investigating judge requested the termination of the proceedings against Mr M. concerning the charges of offences against human dignity .","On DATE the applicants appealed against the decision to terminate that part of the proceedings .","On DATE ORG of ORG ordered further inquiries to determine the exact scope and measure of the lifting of PERSON immunity by the Director General of ORG , and whether it applied to the preliminary investigation alone or to the proceedings as a whole .","On DATE ORG of ORG set aside the order of DATE terminating part of the proceedings and ordered PERSON committal for trial by the criminal court for having subjected the applicants , and also their CARDINAL younger sisters , to treatment contrary to human dignity . As to the scope of the lifting of PERSON immunity , the court found that no immunity applied , for the following reasons :","\u201c The explicit terms of the letter addressed to the court on DATE by ORG on behalf of the Minister , who has authority to interpret and measure the scope of the immunity granted to diplomats , dispel all uncertainty about the situation of Mr [ M. ] ;","the latter ceased to be a ORG staff member on DATE ;","as the deeds in question were not committed in the course of his duties , he no longer enjoys diplomatic immunity ;","there is accordingly no obstacle to his prosecution ; \u201d","Mr M. appealed against that ruling .","On DATE ORG confirmed that PERSON did not enjoy diplomatic immunity , but set aside ORG judgment of DATE in so far as it had ordered Mr. PERSON committal for trial for offences committed against the CARDINAL sisters , as this was outside the remit of the investigating judge .","On DATE ORG rejected the objections as to admissibility raised by PERSON and PERSON based on their diplomatic immunity . It adjourned the case to a hearing on DATE to rule on the merits .","In a judgment of CARDINAL DATE ORG found PERSON and PERSON guilty as charged . Mr PERSON was sentenced to CARDINAL months\u2019 imprisonment , suspended , and fined MONEY ( ORG ) . PERSON was sentenced to DATE months\u2019 imprisonment , suspended , and fined ORG CARDINAL . The couple were jointly ordered to pay the first applicant ORG CARDINAL in damages , and the second applicant MONEY , as she had requested . The relevant passages of the judgment read as follows :","\u201c ... It appears from the information available that [ the applicants ] , who found themselves in a situation of total dependence at the time , who were orphans and minors and whose papers had been taken away , were housed by their uncle and aunt in deplorable conditions of hygiene in an unheated , insalubrious basement ; the photos adduced by counsel for the civil parties ... show the state of the place they lived in DATE ; they had no access to the bathroom and had to fetch a pail of water from the kitchen to wash themselves , and the elder sister [ the first applicant ] was used as a housemaid by the couple [ Mr and PERSON ] with no day off and no pay .","It is further established that they did not pay for [ the second applicant \u2019s ] school meals or travel card , obliging her to walk QUANTITY to school along a road through woods .","It is also established that the accused refused to give them the medical treatment they needed , even though [ Mr M. ] had registered them with the ORG social security scheme .","Although some of the ORG statements indicate that the role played by [ Mr M. ] was a rather passive one , probably to avoid having to stand up to his wife \u2019s strong character , he could not have been unaware of the difference in the way his nieces and his own children were treated .","His frequent absences from home could not have made him unaware of the situation . In addition , he refused to let the police take photos of the basement , and then took pains to have it very comfortably refurbished when released from police custody .","That being so , the actus reus and mens rea of the offence against human dignity in respect of the CARDINAL accused are made out and they must be convicted . \u201d","Mr and PERSON appealed against that judgment on DATE and DATE .","On DATE ORG set aside the judgment on the charge of subjecting several vulnerable people , including CARDINAL minor , to indecent living and working conditions , acquitted the defendants of that charge and dismissed the ORG claims for compensation for the damage suffered in respect of that charge . However , it upheld the guilty finding against PERSON on the charge of aggravated wilful violence against the second applicant . She was fined ORG CARDINAL and ordered to pay MONEY in respect of non - pecuniary damage .","The relevant passages of the judgment read as follows :","\u201c The charge of subjecting several vulnerable people , including CARDINAL minor , to indecent living and working conditions :","It is not disputed that [ PERSON ] went to fetch her nieces at a time when a civil war was raging in GPE that left CARDINAL people dead and orphaned CARDINAL children ; ... the elements of the proceedings show that [ Mr and PERSON ] paid their GPE fare from GPE to GPE ; this shows that their concern was to protect these members of their family by placing the children out of harm \u2019s way ; ...","Under LAW of LAW in force at the material time , offences against human dignity were characterised by the fact of abusing a person \u2019s vulnerability or situation of dependence to subject them to working or living conditions incompatible with human dignity , and were punishable by DATE imprisonment and a fine of MONEY ( ORG ) ; the legislation now in force punishes such offences more severely and gives them a broader definition ; ... the new , harsher law can not be applied retroactively ;","In the instant case , while the living and domestic working conditions were poor , uncomfortable and blameworthy , they can not be qualified as degrading in the context and the circumstances of family solidarity with no intention of economic gain or of exploiting another \u2019s work ; the living and working conditions the defendants gave their nieces were not intended to debase them as human beings or to violate their fundamental rights , but obeyed a duty to help them ; ...","[ Mr and PERSON ] can not be blamed for not having asked their own children , who shared their rooms , ... to give up their comfort ; and they can not reasonably be blamed for giving more to their own children than to their nieces ; ...","The case materials show that the boiler which heated the house was in the basement where the complainants lived and the temperature recorded in their room during the investigation was in excess of CARDINALoC ;","As stated by the GPE daughter ... and confirmed by [ the second applicant ] , the aunt had not formally denied them access to the bathroom , but simply wanted to rationalise its use because of the large number of people who had to use it ; ...","... even though more could have been done to secure [ the first applicant \u2019s ] integration , [ PERSON did call the welfare services for help ; the fact that [ the first applicant ] , who did not speak LANGUAGE and did not want to go to school , was required to play an active part in the housework as the eldest sister , even without pay , did not amount to working conditions incompatible with human dignity , or slave labour , or violation of any fundamental personal rights , but rather to repayment for her having been permanently taken into the home and care of an already large family ; there is no evidence in the case file that [ Mr and PERSON ] stood to make any financial gain by taking their nieces into their home and care , for they were an extra financial burden for them , taken on out of moral obligation ;","According to the testimony , the living and working conditions were compatible with [ the applicants\u2019 ] human dignity ; and it has not been established that the defendants took advantage of the vulnerability of their orphaned nieces or the fact that they were dependent on them ;","Therefore , as the mens rea of the charge of subjecting several vulnerable people , including CARDINAL minor , to indecent living and working conditions has not been made out , the constituent elements of the offence have not been established and the judgment in respect of this charge must be set aside ...","The charges against [ PERSON ] of wilful violence with CARDINAL aggravating circumstances on [ the second applicant ] , a child under DATE , by a person in a position of authority :","[ The second applicant ] told the police that her aunt hit her when she asked for a travel card or when her uncle bought her one ... ; she also alleged that she was slapped when she accidentally dropped a plate ; on CARDINAL occasion her aunt allegedly threatened to hit her with a broom and on another occasion she violently scratched her hand ; ...","There is no doubt that [ the second applicant ] was DATE and DATE , and that she was an orphan under the authority of her aunt , who had taken her in ; the investigation established that [ PERSON ] shouted at [ the second applicant ] , scolded her and threatened to send her back to LOC ;","The facts are established ... ; the charge is made out in all its elements ... ; the judgment convicting [ PERSON ] of aggravated violence must be upheld ... \u201d","The applicants appealed against that judgment on DATE . PERSON also appealed . ORG did not appeal .","DATE . On DATE ORG rejected the appeals lodged by the applicants and PERSON The relevant passage from the judgment reads as follows :","\u201c The terms of the impugned judgment place ORG in a position to affirm that ORG , for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it , stated the reasons for its decision that , in the light of the evidence before it , the charge of subjecting vulnerable or dependent people , including CARDINAL minor , to living or working conditions incompatible with human dignity had not been made out against the accused , and had thus justified its decision dismissing the claims of the civil parties . ... \u201d","\u201c Abusing a person \u2019s vulnerable or dependent situation to obtain the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed is punished by DATE imprisonment and by a fine of MONEY . \u201d","\u201c Abusing a person \u2019s vulnerable or dependent situation by subjecting him or her to working or living conditions incompatible with human dignity is punished by DATE imprisonment and by a fine of MONEY . \u201d","\u201c The offences under articles CARDINAL - CARDINAL and CARDINAL - CARDINAL are punished by CARDINAL years\u2019 imprisonment and by a fine of MONEY when they are committed against CARDINAL person . \u201d","\u201c Obtaining the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed from a person whose vulnerability or dependence is obvious or known to the offender is punished by DATE imprisonment and by a fine of CARDINAL . \u201d","\u201c Subjecting a person whose vulnerability or dependence is obvious or known to the offender to working or living conditions incompatible with human dignity is punished by DATE imprisonment and by a fine of CARDINAL . \u201d","\u201c The offences under articles CARDINAL - CARDINAL and CARDINAL - CARDINAL are punished by CARDINAL years\u2019 imprisonment and by a fine of CARDINAL when they are committed against CARDINAL person .","Where they are committed against a minor , they are punished by DATE imprisonment and by a fine of CARDINAL .","Where they are committed against CARDINAL or more people , CARDINAL or more of whom are minors , they are punished by CARDINAL years\u2019 imprisonment and by a fine of QUANTITY . \u201d","\u201c For the application of articles CARDINAL - CARDINAL and CARDINAL - CARDINAL , minors or people who have been victims of the acts described by these articles upon their arrival on NORP national territory are considered to be vulnerable or in a situation of dependence . \u201d","Court of Cassation , appeal no . DATE , CARDINAL DATE :","\u201c ... As to the single ground for appeal based on the violation of LAW , and of Articles CARDINAL - CARDINAL of LAW , DATE of LAW , CARDINAL , CARDINAL and CARDINAL of LAW ;","In so far as the judgment acquitted ORG ... of the charge of subjecting a vulnerable or dependent person to working or living conditions incompatible with human dignity ; ...","Considering that according to the case file ORG ... , who employed and housed GPE ... , who was born on DATE in GPE , from DATE , the date of her illegal arrival in GPE at DATE , was sent before the criminal court on charges of aiding unlawful entry and residence , employing an alien with no work permit , obtaining unpaid services from a vulnerable person and subjecting that person to working and living conditions incompatible with human dignity ; that the impugned judgment , ruling on the appeals lodged by the accused , the civil party and the public prosecutor , upheld the judgment in so far as it found PERSON ... guilty of the first CARDINAL charges and acquitted her of the last charge ;","Considering that , for the reasons given and adopted , while PERSON ... , whose passport ORG ... took from her , had been made to do domestic chores on a permanent basis , with no holidays , in exchange for a little pocket money or subsidies paid in GPE , the judgment , in upholding the acquittal , took into account that the young woman had been housed in the same conditions as the family and the accused had shown true affection towards her , and the judges concluded that there had been no offence against human dignity ;","However , in so ruling when all forced labour is incompatible with human dignity , ORG failed to draw the legal conclusions of its own findings and to justify its decision vis - \u00e0 - vis the above - mentioned texts ; ...","Quashes the above judgment of ORG ... in respect of the civil action ... \u201d","The ORG refers to paragraphs CARDINAL of the GPE v. GPE judgment ( no . CARDINAL\/CARDINAL , ORG CARDINALVII ) and to CARDINAL to CARDINAL of the GPE v. GPE and GPE judgment ( no . CARDINAL , ECHR DATE ( extracts ) ) , which present the relevant provisions of the international conventions concerning forced labour , servitude , slavery and human trafficking LAW DATE prohibiting slavery ; Convention no . CARDINAL of ORG ( ORG ) of CARDINAL DATE , on forced labour ; Supplementary Convention on the Abolition of Slavery of DATE ; Convention on the Rights of the Child of DATE ; Additional LAW to the United Nations Convention against Transnational Organised Crime , known as the \u201c LAW \u201d , of DATE ; ORG on action against trafficking in human beings , of CARDINAL DATE ) and the relevant extracts from ORG work on the subject ( Recommendations CARDINAL of DATE and CARDINAL of DATE of ORG , explanatory report of ORG on action against trafficking in human beings ) .","The following extracts from \u201c The cost of coercion : global report under the follow - up to LAW at Work \u201d , adopted by ORG in DATE :","\u201c CARDINAL . The ORG \u2019s definition of forced labour comprises CARDINAL basic elements : the work or service is exacted under the menace of a penalty and it is undertaken involuntarily . The work of the ORG supervisory bodies has served to clarify both of these elements . The penalty does not need to be in the form of penal sanctions , but may also take the form of a loss of rights and privileges . Moreover , the menace of a penalty can take many different forms . Arguably , its most extreme form involves physical violence or restraint , or even death threats addressed to the victim or relatives . There can also be subtler forms of menace , sometimes of a psychological nature . Situations examined by the ORG have included threats to denounce victims to the police or immigration authorities when their employment status is illegal , or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities . Other penalties can be of a financial nature , including economic penalties linked to debts . Employers sometimes also require workers to hand over their identity papers , and may use the threat of confiscation of these documents in order to exact forced labour .","As regards \u201c voluntary offer \u201d , the ORG supervisory bodies have touched on a range of aspects including : the form and subject matter of consent ; the role of external constraints or indirect coercion ; and the possibility of revoking freely - given consent . Here too , there can be many subtle forms of coercion . Many victims enter forced labour situations initially out of their own choice , albeit through fraud and deception , only to discover later that they are not free to withdraw their labour , owing to legal , physical or psychological coercion . Initial consent may be considered irrelevant when deception or fraud has been used to obtain it . \u201d"],"violated_articles":["4"],"violated_paragraphs":["4-1","4-2"],"violated_bulletpoints":[],"non_violated_articles":["4"],"non_violated_paragraphs":["4-1","4-2"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78075","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2006,"docname":"KOROLKOV and KAMARDA v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["Mr PERSON ( \u201c the first applicant \u201d ) was born in DATE and died on DATE . His wife , PERSON , expressed her wish to pursue the application of her late husband . PERSON ( \u201c the second applicant \u201d ) was born in DATE and lives in GPE . Both applicants were represented by Mr P. GPE . ORG ( \u201c the Government \u201d ) were represented by their Agents , PERSON and PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicants instituted CARDINAL separate sets of proceedings in the Zavodskyy ORG of PERSON against ORG and the President of GPE , seeking recovery of their indexed deposits with ORG ( \u201c the ORG \u201d ) made before DATE , and compensation .","By CARDINAL judgments of CARDINAL and DATE , the court ordered ORG of the ORG to pay , respectively , the second applicant ORG CARDINAL,CARDINAL.CARDINAL and the first applicant ORG DATE , which corresponded to the amounts of their indexed deposits .","The relevant parts of the judgement of DATE , in which the court gave reasons for its decision and stated the decision itself , read as follows :","\u201c ... According to Article CARDINAL of the LAW of GPE , the right to use private property is inviolable . Pursuant to LAW , all the laws and normative acts adopted after the LAW shall not diminish the content and scope of the rights and duties of the citizens , provided for in LAW . The provisions of the LAW have the highest legal force ...","According to LAW , the ORG undertakes to maintain and update the real value of ORG bank deposits and guarantees compensation pursuant to the relevant rules . The payment of compensation [ to NORP citizens ] for loss of value of money deposits shall be borne by ORG of GPE .","This provision of the PERSON is decisive for the merits of the [ applicant \u2019s ] claims . In fact , the [ State ] ORG [ of GPE ] pleads no defence .","The provisions of LAW on gradual repayment of the deposits to the citizens of GPE concerns the order of enforcement of a court decision on Repayment of an indexed deposit .","Therefore , the claims of PERSON for Repayment of the indexed deposit shall be allowed within the limits of the sums , as stated in the compensation accounts ...","Pursuant to ... , the court","Decided :","To order ORG of ORG to pay PERSON the indexed deposit from the compensation accounts in the Dnipropetrovsk Regional Department nos . ... [ in the amount of ] UAH CARDINAL , ORG DATE and ORG DATE , as well as to pay ORG CARDINAL in respect of the court fees .","To reject the remainder of the [ applicant \u2019s ] claims and [ her claim for ] compensation for non - pecuniary damage , as well as [ her ] claims against ORG of GPE , the PERSON [ ORG of the ] ORG , and the President of GPE . \u201d","The court used similar wording in its judgment of DATE .","In DATE the applicants lodged with the Zavodskyy ORG their appeals against the judgments of CARDINAL and DATE . In DATE they withdrew their appeals .","On DATE the Zavodskyy ORG of PERSON instituted enforcement proceedings .","By CARDINAL separate decisions of DATE , ORG discontinued the enforcement proceedings on the grounds that ORG of the ORG was not a separate legal entity and that it was the Cabinet of Ministers of GPE which was competent to establish the order of repayment of the indexed deposits under LAW GPE on ORG . The applicants did not challenge these decisions before the domestic courts .","In DATE the first applicant was paid ORG CARDINAL in repayment of his indexed deposit pursuant to the resolution of ORG DATE . According to the ORG , the first applicant failed to claim ORG CARDINAL to which he was entitled in DATE . In DATE and DATE the second applicant received a total of ORG CARDINAL pursuant to the resolutions passed by the Cabinet of Ministers concerning repayment of indexed deposits to the citizens of GPE in DATE and DATE . There is no information in the case file whether further payments were made in respect of the judgments of CARDINAL and DATE .","LAW provides as follows :","\u201c ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . \u201d","Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department for that ORG or with a local court . LAW entitles the creditor to institute court proceedings against a legal person responsible for the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .","LAW provides for the liability of bailiffs for any inadequate performance of their duties , as well as compensation for damage caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .","Pursuant to LAW , the ORG undertakes to pay the citizens of GPE compensation for the loss of their money deposited before DATE with , inter alia , the branches of ORG GPE , which carried out business on the territory of GPE . The NORP citizens , who deposited their money with ORG and ORG of GPE in DATE , are entitled to compensation , provided that the money has remained in the accounts of ORG for DATE .","LAW provides that the money deposits shall be repaid gradually , taking into account the amount of the deposits , within the limits of funds , allocated for that purpose in ORG for DATE .","The persons eligible for repayment of their deposits were defined in regulations approved DATE by ORG for DATE . For instance , on DATE the ORG passed a resolution concerning the repayment in DATE of the value of deposits made by the NORP citizens before DATE in branches of the former ORG of the GPE , which carried out business on the territory of GPE . By that resolution , the Government allocated UAH CARDINAL from the national budget to enable individual deposits to be indexed . Of that amount , UAH CARDINAL was allocated to the heirs of account holders who had died DATE , on condition that they had not yet received the grant available LAW CARDINAL of the LAW DATE . The remaining ORG CARDINAL was to be divided between the other account holders . The amount payable to each beneficiary was , in principle , limited to ORG DATE . The ORG passed similar resolutions in respect of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60329","languageisocode":"ENG","respondent":"ITA","branch":"GRANDCHAMBER","date":2002,"docname":"CASE OF CALVELLI AND CIGLIO v. ITALY","importance":1,"conclusion":"Preliminary objections rejected (victim);No violation of Art. 2;No violation of Art. 6-1","judges":"Luzius Wildhaber;Paul Mahoney","text":["NORP Immediately following its birth in a private clinic , \u201c FAC \u201d , in PERSON the applicant 's new - born baby was admitted to the intensive care unit of ORG suffering from serious respiratory and neurological post - asphyxia syndrome induced by the position in which it had become lodged during delivery . The baby died on CARDINAL DATE , DATE after birth .","On DATE the applicants lodged a complaint . The PERSON public prosecutor 's office started an investigation that DATE .","On DATE PERSON was questioned as a witness . A team of CARDINAL expert witnesses was named .","As nothing further happened in the proceedings , the applicants made several requests , notably on DATE , and DATE and DATE , for the investigation to be expedited . On DATE the public prosecutor 's office itself requested the expert witnesses to lodge their report .","On DATE the applicants were informed that at the request of the public prosecutor 's office , the investigating judge had notified GPE \u2013 the doctor responsible for delivering the baby and the joint owner of the clinic DATE that charges would be brought against him .","Subsequently , the scheduled questioning of certain witnesses on DATE did not take place , as the judge dealing with the case was on holiday .","Meanwhile , on DATE , the applicants were joined to the proceedings as civil parties .","On DATE the prosecution applied for the complaint to be filed away without further action . That application was dismissed on CARDINAL DATE .","On DATE the investigating judge instructed the public prosecutor 's office to make further inquiries . Consequently , on CARDINAL DATE the deputy public prosecutor ordered forensic tests . The results were made available on DATE .","On DATE ORG was committed for trial before ORG on a charge of involuntary manslaughter and the applicants renewed their application to be joined to the proceedings as civil parties .","The first hearing was set down for DATE but had to be adjourned because of a lawyers ' strike . The next hearing on DATE was also adjourned due to a delay in service of a summons on the accused to appear .","A new hearing date was fixed for DATE . On that date an order was made for the accused 's trial in absentia . The trial did not begin , however , until DATE , as meanwhile the accused had changed lawyers . The hearing scheduled for DATE was adjourned until DATE as the composition of the bench was not the same as that to which the case had been allocated . The trial thereafter continued with hearings on DATE , and CARDINAL and DATE ( the latter hearing being adjourned as one of the expert witnesses appointed by the court had to be replaced ) . A hearing on DATE was adjourned to QUANTITY DATE , again owing to the fact that the composition of the bench was not the same as that to which the case had been allocated . There were further hearings on CARDINAL and DATE . On the latter date the order for the accused 's trial in absentia was revoked , but the hearing had to be adjourned as the expert witnesses failed to attend without due cause ( they were ordered to pay a fine and to attend the next hearing on DATE ) . A final hearing took place on DATE . The accused , who had attended the hearings on CARDINAL DATE and DATE , was not present at that hearing .","At the hearing on DATE the ORG found the accused guilty in absentia of involuntary manslaughter . Its judgment was lodged with the registry on DATE . ORG sentenced the accused to DATE imprisonment and ordered him to pay the civil parties ' costs together with compensation to be assessed at DATE .","It found firstly that the accused knew that the birth had to be regarded as high risk since the mother was a level - A diabetic and had a past history of confinements that had been equally difficult because of the size of the foetus . The risks inherent in deliveries in such circumstances , which the expert witnesses appointed by ORG described as readily foreseeable , meant that precautionary measures should have been taken and that the doctor in charge should have been present . ORG found , however , that GPE , whom the applicant had consulted during the pregnancy , had made no arrangements for precautionary measures , such as an external examination of the mother , to assess whether the foetus was too large for a natural birth . Above all , he had absented himself during the birth . When the complications had occurred , it had taken the nursing staff TIME to locate GPE , who was busy seeing patients in another part of the clinic . The intervening delay before ORG was able to perform the manipulation necessary to extract the foetus had significantly reduced the new - born 's chances of survival .","ORG nevertheless suspended the sentence and ordered that the conviction should not appear on GPE 's criminal record . In addition , it dismissed the civil parties ' application for a provisional award of compensation .","On DATE E.C. appealed to ORG .","In a judgment of CARDINAL DATE , which was delivered in absentia and lodged with the registry on CARDINAL DATE , ORG declared the appeal inadmissible . Noting that he had been tried in absentia at first instance , ORG held that ORG had failed to give his lawyer the authority to act required under the rules applicable in such cases . It ordered him to reimburse the costs incurred by the civil parties in the proceedings .","On DATE GPE appealed to ORG . In a judgment of DATE , which was lodged with the registry on CARDINAL DATE , ORG overturned the decision of ORG , to which it remitted the case for a retrial . It held that ORG had erred in treating GPE as being absent , as he had been present at the start of the trial and had accordingly to be regarded as having left the court during the trial and not as liable to trial in absentia .","In a judgment of DATE , which was lodged with the registry on DATE , ORG ruled that the prosecution of the offence was time - barred .","In so doing , it noted that the limitation period for the offence of which ORG was accused had expired on DATE , in other words , even before ORG had delivered its judgment .","Following DATE 's conviction at first instance by ORG on DATE ( see paragraphs CARDINAL above ) , the applicants served a summons requiring ORG to appear before the civil court of that town .","NORP However , on DATE the applicants entered into an agreement with the insurers of the doctor and the clinic under which the insurers were to pay MONEY ( ORG ) for any damage sustained by the applicants . Of that sum , ITL CARDINAL were designated as reparation for the special loss sustained by PERSON . At that time , the criminal proceedings were pending in ORG following ORG judgment of DATE ( see paragraph CARDINAL above ) .","Subsequently , as the parties failed to attend a hearing on DATE , the case was struck out of the civil court 's list . At that stage , the criminal proceedings had only just ended , ORG ruling that the prosecution of the offence was time - barred having become final on DATE .","Article CARDINAL of the NORP LAW provides :","\u201c The public prosecutor 's office has a duty to prosecute . \u201d","Article CARDINAL of LAW lays down that the penalty for involuntary manslaughter is imprisonment of DATE .","Furthermore , LAW , sub - paragraph CARDINAL , of LAW provides that the limitation period for involuntary manslaughter is DATE . That period may be extended by CARDINAL as a result of any interlocutory matters arising , but may under no circumstances exceed DATE from the date of the offence .","Lastly , LAW provides :","\u201c In cases in which publishing the decision on the merits may contribute to providing reparation for the damage , the court may , on application by an interested party , order the losing party to publish the decision at its own expense in CARDINAL or more newspapers determined by the court .","If the decision is not published within the period fixed by the court , the interested party may arrange for publication and shall retain the right to recover the costs from the losing party . \u201d","In the resolution cited above , adopted on DATE , ORG recommended that in their internal legislation and practice the governments of the member States be guided by the following principles :","\u201c CARDINAL . Criminal proceedings should not be instituted or , if appropriate , sanctions shall not be imposed for manslaughter or accidental bodily injury resulting from a minor traffic offence , that is to say , a driving offence that was not such that its author must have been aware of the danger to which he exposed himself or others ;","The same should apply , subject to the inexcusable character of the fault committed , in respect of a person who has caused manslaughter or accidental bodily injury if he himself or someone dear to him has been so badly injured that a sanction would be pointless , if not inhuman ;","Application of the above - mentioned recommendations should in no way prejudice the rights of the victims to obtain compensation . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2","6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93204","languageisocode":"ENG","respondent":"MKD","branch":"ADMISSIBILITY","date":2009,"docname":"VRANISKOSKI v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE , and ORG .","The applicant was a bishop in ORG ( \u201c the ORG \u201d ) . On DATE ORG of the MOC ( \u0421\u0432\u0435\u0442\u0438\u043e\u0442 PERSON ) dismissed him from this duty on the ground that he had violated the oath ( NORP \u0438\u0441\u043f\u043e\u0432\u0435\u0434\u0430\u043d\u0438\u0435\/ \u0437\u0430\u043a\u043b\u0435\u0442\u0432\u0430 ) by which he had pledged to safeguard the ORG \u2019s unity and LAW by his unilateral accession to ORG ( \u201c the SOC \u201d ) . On DATE , the applicant was expelled from the FAC . He was also prevented from carrying out ceremonies and preaching in all churches and monasteries .","On DATE ORG ( \u201c the trial court \u201d ) convicted the applicant of inciting ethnic , racial and religious hatred and intolerance and sentenced him to CARDINAL months\u2019 imprisonment . It established that the applicant had accepted , although being aware that it would instigate religious hatred and intolerance among believers in the ORG , to be appointed by the ORG as an exarch of the so - called ORG and to represent the latter as the only valid church in the respondent State . In that capacity , he had undertaken the following .","a ) In DATE , he released a religious calendar in which he had made , inter alia , the following defamatory statements in respect of the ORG :","\u201c ... the dissident high episcopacy of the so - called ORG bears full responsibility for the lack of religious education of the people . The bishops of that dissident organisation , since the beginning of the schism in DATE until the present , behave inadequately given the function which they were bound to by God . They persistently put their own interests before the interests of the church . They were and still remain the last bastion of communism ... The people ... allowed a few so - called archbishops , unrecognised by anyone , to decide about their church ... If people were aware of the [ importance of the church ] , they would never allow some worldlings and heretics to decide on the destiny of the ORG .","Unfortunately , the schism in ORG , which began in DATE , meant that many religious surrogates were created on our territory .","The latest heresy disseminated by the high episcopacy of the dissident organisation , which calls itself ORG , is to accept the schism as a normal state of affairs which they defend by non - religious methods ...","ORG of the episcopacy of ORG ... allowed the dissident archbishops in GPE to reunite ... with ORG , on pain of being taken before ORG . CARDINAL new episcopes , PERSON , were appointed as adjuncts of [ the applicant ] ...","Being aware that if they targeted the pastor they would destroy the herd , the dissidents , who call themselves ORG , endeavour to discredit [ the applicant ] , who is the only canonical episcope in the territory of GPE ...","They are further aware that if the state authorities let Patriarch PERSON ( the Patriarch of ORG at that time ) and other archbishops of other ORG to enter GPE , the people would soon realise that everything they said about [ the applicant ] was untrue and a political trick ... \u201d","b ) In DATE , he attended the confirmation ( \u0445\u0438\u0440\u043e\u0442\u043e\u043d\u0438\u0458\u0430 ) of PERSON episcopes . Both were proposed by ORG with a view to creating the illusion of a parallel ORG of the ORG . The ceremony took place in a church in GPE , GPE .","c ) On DATE the applicant held a religious ceremony in an apartment owned by his parents which , according to him , served as a religious object . In doing so , the applicant stirred up considerable religious hatred and intolerance among believers in the ORG and provoked various associations of citizens and other organisations .","The trial court established that , as a historical fact , the ORG had existed on the territory of the respondent State as an ecclesiastical power until DATE , when it had been abolished by GPE . Since then , ORG and , briefly , ORG , had been in power . The ORG had further existed DATE , having autonomy under the ORG . The ORG \u201c did not have an interest in GPE having an independent [ autocephalous ] ORG , but rather an autonomous church , as was the ORG ... after the breakup of GPE and the independence of GPE , the ORG was constituted , which increased the gap with the ORG \u201d The court further found it undisputed that the ORG was not recognised by the ORG and that due to that dispute , the ORG was not recognised by any of the churches of ORG either .","The court established that the applicant , after being appointed exarch by the ORG , had started acting as a leader of ORG as the true ORG in the respondent ORG , in parallel to the ORG . At his request , the ORG made PERSON with a view to creating ORG of the Ohrid Archiepiscopate . He designated his GPE apartment as the seat of ORG , where he held religious ceremonies on many occasions . He denied the existence of the ORG , as well as the reputation and dignity of its leaders . His ideas in favour of the restoration of ORG under the ORG \u2019s jurisdiction were only supported by a small group of priests and citizens .","The court found that the applicant , in the religious calendar of DATE , had made untrue , disrespectful and defamatory statements about the ORG and its leaders . He had attempted to present himself as a martyr seeking salvation for the NORP people , whom he called ignorant and illiterate . The court described the calendar as \u201c bad and vulgar in respect of the religious feelings of the NORP people \u201d . It found that , in addition , the applicant had described the religious teaching of the ORG as \u201c heretical \u201d .","The court established that the applicant had released the calendar , although he denied it . The calendar was published by a monastery located in his GPE DATE house , a fact which could not have been unknown to him . The calendar was fully devoted to him and his activities ; it further contained pictures of him taken on different occasions . Its text reflected his ideas on denying the existence of the ORG , which he had continued to express during the trial . The court therefore concluded that the applicant had determined the text of the calendar , and printed and distributed it through his followers .","It further established that the applicant had not succeeded in persuading people to accept his teaching , but rather , had instigated hatred towards himself and his followers . The ensuing revolt and intolerance had derived from an infringement of the religious sensibilities of the people , who had requested the state authorities to intervene . He had even been threatened with assault . In this connection , the court referred to an incident of DATE when a considerable number of people had gathered in front of the applicant \u2019s home to protest about his activities .","The trial court rendered the decision after it had heard submissions from the applicant and several witnesses and examined other documentary evidence . It disregarded the applicant \u2019s arguments that several ORG could exist in the respondent ORG , stating that only the ORG and its ORG existed under LAW .","The applicant appealed and complained , inter alia , that the proceedings in question concerned his freedom of religion , which was guaranteed under LAW . He was convicted for having expressed different religious opinions than those of the members of ORG . Even though the applicant agreed with the contents of the calendar , he complained that no evidence had been presented that he had published it . He complained that the conduct as a result of which he had been found guilty could not be interpreted as incitement to religious hatred and intolerance , but only as an insult or defamation , which could only be prosecuted by means of a private action .","On DATE ORG held a hearing which was attended by the applicant , his lawyer and a representative of the public prosecutor \u2019s office . The court upheld the applicant \u2019s conviction under all CARDINAL heads . It found no reason to depart from the trial court \u2019s reasoning that the applicant had deliberately undertaken the actions he was convicted of and that he had instigated a schism in the ORG and religious hatred and intolerance among NORP churchgoers .","The court held that the applicant had abused the right to freedom of religion by creating a parallel ORG , which was contrary to the LAW , under which there was only CARDINAL ORG on the territory of the respondent ORG . It concluded that the applicant had aimed to implement the ideas of a foreign state on the territory of the respondent ORG .","On DATE the applicant lodged a request with ORG for extraordinary review of a final judgment ( \u0431\u0430\u0440\u0430\u045a\u0435 \u0437\u0430 \u0432\u043e\u043d\u0440\u0435\u0434\u043d\u043e \u043f\u0440\u0435\u0438\u0441\u043f\u0438\u0442\u0443\u0432\u0430\u045a\u0435 \u043d\u0430 \u043f\u0440\u0430\u0432\u043e\u0441\u0438\u043b\u043d\u0430 \u043f\u0440\u0435\u0441\u0443\u0434\u0430 , hereinafter \u201c extraordinary review request \u201d ) . He complained that he had been convicted on the basis of having acceded to another religious community and holding a religious ceremony in his home . As regards the calendar , he reiterated that , ultimately , he could only be held criminally responsible for insult and\/ or defamation , which were not prosecutable except by means of a private action . He invoked , inter alia , LAW .","On DATE ORG ruled partly in favour of the applicant and upheld his conviction only in respect of the distribution of the religious calendar . It decided that the applicant \u2019s conduct under b ) and c ) described in the trial court \u2019s decision did not fall within the scope of CARDINAL ( CARDINAL ) of LAW ( see \u201c Relevant domestic law \u201d below ) . In this latter context , it found that the applicant \u2019s presence at the confirmation ceremony in GPE and the religious ceremony in his home were to be regarded as falling within the right to freedom of thought and religion and were , as such , protected under LAW .","As to the religious calendar , it stated inter alia , that :","\u201c ... the way in which [ the applicant ] entered the public arena by way of the religious calendar of DATE , which was distributed in the homes of believers in GPE and further afield , the formulations he used , his position , the aims he wished to achieve and the consequences of his activities , analysed in the context of the freedom of thought , conscience and religion , as well as the right of freedom of religion of others , is an act which was directed towards the violation of the legal order which guarantees these rights .","A criminal offence is committed when , irrespective of the manner it is undertaken , an action demonstrates that certain expressions were deliberately intended to serve as propaganda instigating ethnic , racial and religious hatred , division and intolerance ... \u201d","ORG further stated that :","\u201c The conduct of [ the applicant ] , who was appointed exarch of the so - called ORG by the Patriarch of ORG , with a view to creating a parallel Holy Synod in GPE , went beyond the freedom of thought , conscience and religion . The facts of the case ... confirm that the public expression of thought , or as the convicted stated \u2013 his freedom of religion \u2013 by way of the religious calendar of DATE , which was addressed to orthodox believers in ORG , in the view of ORG , can not be regarded as an expression of his personal intellectual stance nor it is an intellectual , theological and scientific opinion addressed to [ those believers ] . The calendar of DATE , by its contents and aim , was a direct violation of the freedom of others to have their own thought , conscience and religion , namely belief in ORG and its existence for DATE , in the canons of orthodox communion , in its ceremonies etc . The contents of the religious calendar directly incite and encourage religious intolerance and division among NORP believers in ORG .","The rights of others , namely to the freedom of religion , entail respect for believers as stipulated in LAW . That , according to ORG , was violated with the provocative depiction of events in the calendar . Defamatory statements such as \u201c those who claim that ORG exists spread heresy \u201d and \u201c ORG is heretical \u201d , are , at the least , a somewhat unusual form of communication between believers and churches .","[ The applicant \u2019s ] expression ... acting always as an exarch appointed by ORG , reaches high level of abuse and , as such , demonstrates a denial and violation of others\u2019 freedom of thought and religion and can not , accordingly , be tolerated in a free and democratic society . His activities are directed towards the believers in ORG in order to stir up religious hatred and intolerance . \u201d","Article CARDINAL , as far as relevant , provides as follows :","\u201c ( CARDINAL ) The freedom of conviction , conscience , thought and public expression of thought is guaranteed ... \u201d","Article CARDINAL , as far as relevant and modified with Amendment VII , provides as follows :","\u201c ( CARDINAL ) The freedom of religion is guaranteed .","( CARDINAL ) The right to express one \u2019s religion , freely and publicly , individually or with others , is guaranteed .","( CARDINAL ) ORG , as well as ORG in GPE , ORG , ORG , ORG and other religious communities and groups are separate from the ORG and equal before the law ... \u201d","Article CARDINAL , insofar as relevant , provides as follows :","\u201c ( CARDINAL ) Every citizen may seek protection of freedoms and rights set out in the LAW before courts of general jurisdiction , as well as before ORG , in a procedure based on the principles of priority and urgency ... \u201d","\u201c ORG :","...","( CARDINAL ) protects the freedoms and rights of individuals and citizens concerning the freedom of conviction , conscience , thought and public expression of thought ; political association and activity ; and the prohibition of discrimination among citizens on the grounds of sex , race , religion , national , social and political affiliation ;","... \u201d","Section CARDINAL of the Criminal Code provides , inter alia , that any person incites national , racial or religious hatred , disagreement and intolerance by coercion , ill - treatment , or duress , who insults national , ethnic and religious symbols , or damages monuments and cemeteries , or in any other way incites national , racial or religious hatred , disagreement and intolerance shall be punished with CARDINAL to CARDINAL years\u2019 imprisonment .","Section CARDINAL of the Rules of Procedure of ORG , insofar as relevant , provides as follows :","\u201c Any citizen who considers that his or her right or freedom set out in LAW has been violated by an individual act or action , may seek protection by ORG within DATE from DATE he or she was served with the final individual act ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57416","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1985,"docname":"CASE OF ABDULAZIZ, CABALES AND BALKANDALI v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 14+8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"C. Russo","text":["The applicants are lawfully and permanently settled in GPE . In accordance with the immigration rules in force at the material time , Mr. PERSON , Mr. PERSON and Mr. PERSON were refused permission to remain with or join them in that country as their husbands . The applicants maintained that , on this account , they had been victims of a practice of discrimination on the grounds of sex , race and also , in the case of Mrs. PERSON , birth , and that there had been violations of LAW ) of the Convention and of LAW article CARDINAL) , taken alone or in conjunction with LAW article DATE ) . They further alleged that , contrary to LAW ) , no effective domestic remedy existed for the aforesaid claims .","The evolution of immigration controls in GPE has to be seen in the light of the history of GPE and the corresponding developments in nationality laws . Originally all persons born within or having a specified connection with GPE or the dominions owed allegiance to the ORG and were NORP subjects . A common NORP nationality was , however , difficult to reconcile with the independence of the self - governing countries of the ORG into which the ORG was transformed . As the various territories concerned became independent , they introduced their own citizenship laws but , for the purposes of GPE law , persons having the citizenship of an independent ORG country retained a special status , known as \" NORP subject \" or \" GPE citizen \" ( these terms being synonymous ) . This status was also held by \" citizens of GPE . Prior to DATE , the latter citizenship was , briefly , acquired by birth within GPE or one of its remaining dependencies , by descent from a father having that citizenship , by naturalisation or by registration ( NORP Nationality Act DATE ) .","Whereas aliens have been subject to continuing strict immigration controls over a long period , the same is not true of ORG citizens . Until DATE , the latter , irrespective of their local citizenship , all had freedom to enter GPE for work and permanent residence , without any restriction . A rapid rise in the influx of immigrants , especially in DATE , and the consequent danger of the rate of immigration exceeding the country 's capacity to absorb them led to a radical change in this situation . LAW DATE , and then LAW DATE , restricted the right of entry of , and imposed immigration controls on , certain classes of GPE citizens , including citizens of GPE , who did not have close links to GPE .","The existing immigration laws were amended and replaced by LAW DATE ( \" LAW \" ) , which came into force on DATE . CARDINAL of its main purposes was to assimilate immigration controls over incoming ORG citizens having no close links to GPE to the corresponding rules for aliens . The LAW created CARDINAL new categories of persons for immigration purposes , namely those having the right of abode in GPE ( \" patrials \" ) and those not having that right ( \" non - patrials \" ) .","\" GPE \" were to be free from immigration controls . The status of \" patrial \" was intended to designate ORG citizens who \" belonged \" to GPE and , in summary , was conferred ( by LAW ) on :","( a ) citizens of GPE who had acquired that citizenship by birth , adoption , naturalisation or registration in GPE ( that is , GPE , GPE and GPE ) , or were the children or grandchildren of any such persons ;","( b ) citizens of GPE who had at any time been settled in GPE for DATE ;","( c ) other ORG citizens who were the children of a person having citizenship of GPE by virtue of birth in GPE ;","( d ) women , being ORG citizens , who were or had been married to a man falling within any of the preceding categories .","Under LAW ) of LAW , \" non - patrials \" ( whether ORG citizens or aliens ) \" may live , work and settle in GPE by permission and subject to such regulation and control of their entry into , stay in and departure from GPE as is imposed \" by LAW .","Subject to certain exceptions not relevant to the present case , a \" non - patrial \" shall not enter the GPE unless given leave to do so ( section CARDINAL(CARDINAL ) ) . He may be given such leave ( or , if he is already in the country , leave to remain ) either for a limited or for an indefinite period ; in the former case , the leave may be subject to conditions restricting employment or requiring registration with the police or both ( ibid . ) . Where limited leave to enter or remain is granted , it may subsequently be varied , either as regards its duration or the conditions attaching thereto but , if the limit on duration is removed , any conditions attached to the leave cease to apply ( section CARDINAL(CARDINAL ) ) . The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the ORG Secretary ( section CARDINAL(CARDINAL ) ) .","Under section CARDINAL(CARDINAL ) of LAW , the Home Secretary is obliged from time to time to lay before ORG statements of the rules , or of any changes therein , laid down by him as to the practice to be followed in the administration of the LAW for regulating entry into and stay in GPE . These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the LAW and statements of the manner in which the ORG Secretary will exercise his own powers of control after entry . The rules are required to provide for the admission of persons coming for the purpose of taking employment , or for the purposes of study , or as visitors , or as dependants of persons lawfully in or entering GPE , but uniform provision does not have to be made for these categories and , in particular , account may be taken of citizenship or nationality ( sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) ) . Thus , different rules can be and are made for nationals of the member LAW under Community law , and NORP citizens are in a special position .","The rules are subject to a negative resolution procedure whereby , if a resolution disapproving the Home Secretary 's statement is passed by either ORG of ORG within DATE of its being laid , he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before ORG within DATE of the passing of the resolution ( section CARDINAL(CARDINAL ) ) . The statement of rules thus amended is subject to the same procedure as the original statement . Because of the continuous nature of decision - making by immigration officers , the statement originally laid is not abrogated by any negative resolution ; it will come into operation when made or on the date therein provided and will remain in force until replaced .","The exact legal status of the rules is of some complexity . This question was considered by ORG in NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL , when Lord ORG said :","\" [ The Home Secretary 's rules ] are not rules of law . They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [ DATE Act ] . They can be , and often are , prayed in aid by applicants before the courts in immigration cases . To some extent the courts must have regard to them because there are provisions in the LAW itself , particularly in section DATE , which show that in appeals to an adjudicator , if the immigration rules have not been complied with , then the appeal is to be allowed . In addition the courts always have regard to those rules , not only in matters where there is a right of appeal ; but also in cases under prerogative writs where there is a question whether officers have acted fairly . But they are not rules in the nature of delegated legislation so as to amount to strict rules of law . \"","Lord Justice PERSON also doubted whether the rules constituted delegated legislation . He observed : \" These rules are very difficult to categorise or classify . They are in a class of their own . They are certainly a practical guide for ... immigration officers .... Indeed they are , as to large parts , ... little more than explanatory notes of the [ CARDINAL LAW ] itself . \" However , he noted that if ORG disapproved of the rules , they were not thereby abrogated . Furthermore , at least as far as an adjudicator dealing with appeals was concerned , the rules had the force of law , although it seemed that they could be departed from with the consent of the applicant himself .","Lord Justice PERSON said :","\" [ The rules ] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of ORG ; ... they are not in my view in any sense of themselves of legislative force . It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before ORG , but because by section CARDINAL(CARDINAL ) of the [ CARDINAL LAW ] the rules are given an effect which is in a certain field clearly legally enforceable , and that is a quite different matter . \"","Notwithstanding that an application for entry clearance ( see paragraph CARDINAL ( b ) below ) or leave to enter or remain may fall to be refused under the relevant immigration rules , the Home Secretary has a discretion , deriving from historic prerogative powers , to authorise in exceptional circumstances the grant of entry clearance or of leave to enter , or to allow a person to remain in GPE . Where the applicant is a husband seeking to join or remain with his wife settled in GPE , factors which the ORG Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad , and any recommendations by the immigration appellate authorities ( see paragraphs DATE below ) .","The rules in force at the time of the events giving rise to the present case were contained in the \" Statement of Changes in Immigration Rules \" ( ORG CARDINAL ) , laid before ORG on DATE ( \" the DATE Rules \" ) ; they applied to all decisions taken on or after DATE , except those relating to applications made on or before DATE . A draft of the rules had previously been included in a ORG published in DATE .","The DATE Rules , which in paragraph CARDINAL instructed immigration officers to carry out their duties without regard to the race , colour or religion of the intending entrant , detailed firstly the controls to be exercised on the entry into GPE of \" non - patrials \" and then those to be exercised after entry . The former depended on whether the individual concerned was coming for temporary purposes ( for example , visitors or students ) , for employment or business or as a person of independent means , or for settlement . As under the rules previously in force , visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits . The work - permit requirements , however , did not apply to nationals of other member GPE of ORG nor to persons covered by the \" GPE ancestry rule \" ; under the latter rule , which had been in force since the DATE Act came into operation , a GPE citizen having a grandparent born in GPE and wishing to take or seek employment in GPE could obtain indefinite leave to enter even without a work permit . A further exception was to be found in the \" working holiday rule \" , whereby young GPE citizens could , without a permit , take employment incidental to an extended holiday being spent in GPE ; however , the period of their stay could , under LAW , not exceed DATE . All these exceptions have been maintained in subsequent immigration rules .","A particular feature of the changes introduced by the DATE Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing \" primary immigration \" , that is immigration by someone who could be expected to seek full - time work in order to support a family . In taking these measures , the Government were concerned also to advance public tranquillity and , by exercising firm and fair immigration control , to assist in securing good community relations .","To these ends , among the changes effected was the introduction of stricter conditions for the grant of leave to a \" non - patrial \" husband or fianc\u00e9 seeking to join or remain with his wife or fianc\u00e9e settled in GPE . Previously , any such husband or fianc\u00e9 would normally have been allowed to settle after a qualifying period , provided that the primary purpose of the marriage was not to obtain settlement in that country . These new measures were not extended to the wives and fianc\u00e9es of settled men , a fact attributed by the Government to long - standing commitments ( based allegedly on humanitarian , social and ethical reasons ) to the reunification of the families of male immigrants . Nor did the new measures apply to nationals of other member GPE of ORG .","The relevant provisions of the DATE Rules - and of their successors - are summarised below in terms of the following expressions .","( a ) A person is \" settled in GPE \" when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws , and is free from any restriction on the period for which he or she may remain ( paragraph CARDINAL ) .","( b ) An \" entry clearance \" ( paragraphs CARDINAL - CARDINAL ) is a document ( either a visa , an entry certificate or a ORG letter of consent , depending on the nationality of the person concerned ) which is to be taken by an immigration officer as evidence that the holder , although a \" non - patrial \" , is eligible under the immigration rules for entry to GPE . It is obtained at NORP missions abroad or from ORG prior to arrival in GPE .","( c ) A marriage or intended marriage is \" non - qualifying \" if there is reason to believe that :","- its primary purpose is to obtain admission to or settlement in GPE ; or","- the parties do not intend to live together permanently as man and wife ; or","- the parties have not met ( paragraphs CARDINAL , DATE and CARDINAL ) .","( d ) There is \" potential evasion of the rules \" if there is reason to believe that a husband has remained in GPE in breach of the immigration rules before the marriage , that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated ( paragraph CARDINAL ) .","( e ) The \" financial requirement \" is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds ( paragraphs DATE , DATE and DATE ) .","Where a \" non - patrial \" whose spouse or intended spouse was \" settled in GPE \" came to that country for settlement , he or she would be admitted for that purpose provided that he or she held a current \" entry clearance \" and unless the circumstances specified in paragraph CARDINAL of the DATE Rules obtained ( for example , false representations , medical grounds , criminal record , exclusion would be conducive to the public good ) .","( a ) Where the intending entrant was a husband or fianc\u00e9 , he could , under paragraphs CARDINAL and DATE , obtain an \" entry clearance \" :","( i ) unless the marriage or intended marriage was \" non - qualifying \" ;","( ii ) if his wife or fianc\u00e9e was a citizen of GPE who or one of whose parents had been born in GPE ; and","( iii ) if , in the cases of fianc\u00e9s only , the \" financial requirement \" was satisfied .","( b ) Where the intending entrant was a wife or fianc\u00e9e , she could , under DATE , DATE and DATE , obtain an \" entry clearance \" irrespective of the nationality of her husband or fianc\u00e9 or of his own or his parents ' place of birth . Here , there was no provision as to \" non - qualifying \" marriages , but the \" financial requirement \" had generally to be satisfied .","( c ) Wives admitted under these rules would be given indefinite leave to enter ; husbands would be initially admitted for DATE and fianc\u00e9s or fianc\u00e9es for DATE , with the possibility , subject to certain safeguards , of applying subsequently to ORG for indefinite leave ( DATE , DATE , DATE , DATE , CARDINAL and CARDINAL ) .","\" Non - patrials \" already admitted to GPE in a temporary capacity who subsequently married a person \" settled in GPE \" could also obtain permission to stay .","( a ) Where the \" non - patrial \" seeking permission was a man , the basic conditions ( paragraph CARDINAL ) were that :","( i ) his wife was a citizen of GPE who or one of whose parents had been born in GPE ; and","( ii ) the marriage was not \" non - qualifying \" and there was not \" potential evasion of the rules \" .","( b ) Where the \" non - patrial \" seeking permission was a woman , she would normally be granted leave to remain on application ( paragraph CARDINAL ) .","( c ) Leave to remain granted under these rules would be , for wives , indefinite and , for husbands , for an initial period of DATE with the possibility , subject again to the conditions referred to in sub - paragraph ( a ) ( ii ) above , of subsequent removal of the time - limit ( paragraphs CARDINAL and CARDINAL ) .","Decisions on applications for leave to remain were taken in the light of all relevant facts ; thus , even where the individual satisfied the formal requirements , permission would normally be refused if the circumstances specified in paragraph CARDINAL of the DATE Rules obtained ( for example , false representations , non - compliance with the time - limit or conditions subject to which he or she had been admitted or given leave to remain , undesirable character , danger to national security ) .","CARDINAL result of QUANTITY was that the right of abode in GPE became divorced from nationality : thus , a number of citizens of GPE did not have that right ( for example , because they had not been born in GPE ; see paragraph CARDINAL ( a ) above ) , whereas it was enjoyed by a number of persons who were not such citizens ( for example , GPE citizens having an ancestral link with GPE ; see paragraph CARDINAL ( c ) above ) . With a view to bringing citizenship and immigration laws into line , the position was substantially amended by LAW DATE , which came into force on DATE . So far as is relevant for the present purposes , that Act :","( a ) replaced citizenship of GPE ( see paragraph CARDINAL in fine above ) with CARDINAL separate citizenships , \" NORP \" , \" British Dependent Territories \" and \" ORG \" ;","( b ) provided , in section CARDINAL(CARDINAL ) , that on DATE \" NORP citizenship \" was to be acquired by persons who were then citizens of GPE and had the right of abode in GPE under LAW ; this category could include a person who was neither born nor had a parent born in GPE ( see paragraph CARDINAL ( b ) above ) ;","( c ) laid down detailed provisions on the acquisition of NORP citizenship by persons born after DATE ;","( d ) contained , in section CARDINAL and Schedule CARDINAL , detailed provisions on naturalisation as a NORP citizen on the basis of residence in GPE , the grant of a certificate of naturalisation being at the discretion of the Home Secretary ;","( e ) amended LAW by providing in section CARDINAL that the right of abode in GPE - use of the expressions \" patrial \" and \" non - patrial \" was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by NORP citizens and by such ORG citizens as on DATE had the right of abode under LAW .","On DATE , after debates in ORG and ORG , the ORG Secretary laid before ORG a Statement of Changes in Immigration Rules ( ORG CARDINAL ; \" the DATE Rules \" ) , intended to harmonise the immigration rules with LAW DATE and expressed to come into force on DATE . However , on DATE ORG passed a resolution disapproving the Statement , some Members finding the changes too lax and others , insufficient . Since by DATE no further changes had been laid before ORG , the DATE Rules came into force on that date , notwithstanding the negative resolution ( see paragraph CARDINAL above ) .","The DATE Rules made no changes to the regime governing wives and fianc\u00e9es , described in paragraphs CARDINAL above . The regime governing a husband or fianc\u00e9 was modified in the following main respects .","( a ) The requirement that , for him to be eligible for leave to enter or remain , his wife or fianc\u00e9e had to be a citizen of GPE born or having a parent born in GPE was , under paragraphs CARDINAL , DATE and CARDINAL , replaced by a requirement that she be a NORP citizen . The place of her own or her parents ' birth ceased to be material since NORP citizens could include persons without the territorial birth link ( for example , a woman born in a former ORG but having the right of abode in GPE by virtue of long residence there ; see paragraphs CARDINAL ( b ) and CARDINAL ( b ) above ) .","( b ) By virtue of CARDINAL , DATE and CARDINAL , the onus of proof was reversed , so that it became for the man seeking leave to enter or remain to show that the marriage was not \" non - qualifying \" or , in cases to which paragraph CARDINAL applied , that there was not \" potential evasion of the rules \" .","( c ) Leave to remain for settlement following marriage , granted to a man admitted in a temporary capacity ( cf . paragraph CARDINAL ( c ) above ) , would be for an initial period of DATE , followed by a further period of DATE and then by the possibility , subject again to the conditions referred to in sub - paragraph ( b ) above , of subsequent removal of the time - limit ( paragraph CARDINAL ) .","No provision was made in the DATE Rules for women settled in GPE who were not NORP citizens to be joined by their husbands , although leave could be granted by the ORG Secretary in the exercise of his extra - statutory discretion ( see paragraph CARDINAL above ) . These women could also apply for naturalisation as NORP citizens on the basis of residence , under section CARDINAL of LAW DATE ( see paragraph CARDINAL ( d ) above ) .","On DATE , a further Statement of Changes in Immigration Rules ( ORG CARDINAL ; \" the DATE Rules \" ) was laid before ORG . A motion disapproving these rules was defeated in ORG and they came into force on DATE .","The DATE Rules again did not modify the regime governing wives and fianc\u00e9es . That governing husbands was amended , so far as is material to the present case , in that , under paragraph CARDINAL , the position concerning the length of leave to remain granted to a man already in GPE reverted to that obtaining under LAW ( that is , initial leave of DATE , followed by the possibility of indefinite leave ; see paragraph CARDINAL ( c ) above ) . This change was coupled with a transitional provision ( paragraph CARDINAL ) concerning men who , whilst the DATE Rules were in force ( see paragraph CARDINAL ( c ) above ) , had been granted thereunder an extension of stay for a second period of DATE : they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period .","There was no change in the position concerning women settled in GPE who were not NORP citizens , described in paragraph CARDINAL above .","Under sections CARDINAL(CARDINAL)(a ) , CARDINAL(CARDINAL ) , CARDINAL , DATE , DATE and CARDINAL ) of LAW , a person not having the right of abode in GPE and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto :","( a ) commits a criminal offence punishable with a fine of not MONEY CARDINAL or imprisonment of not DATE or both , to which penalties the court may , with certain exceptions , add a recommendation for deportation ; and","( b ) is , with certain exceptions , liable to deportation , although he can not be compelled to leave unless the Home Secretary decides to make a deportation order against him .","Appellate authorities in immigration matters were established by LAW DATE . They consist of :","( a ) adjudicators , who sit alone and are appointed by the ORG Secretary ;","( b ) ORG which sits in divisions of CARDINAL members ; the members are appointed by the Lord Chancellor and a certain number must be lawyers .","There is no further right of appeal as such to the ordinary courts , but decisions of the appellate authorities are susceptible to judicial review by ORG on the ground of such matters as error of law or unreasonableness . ORG review of immigration decisions may also cover questions of an abuse or excess of power by the ORG Secretary or whether an immigration officer acted impartially and fairly .","Under sections CARDINAL , DATE and CARDINAL of the DATE Act , an appeal may , subject to certain exceptions , be made to an adjudicator against , inter alia :","( a ) refusal of leave to enter GPE or of an entry clearance ;","( b ) variation of , or refusal to vary , a limited leave to remain in GPE ;","( c ) a decision to make a deportation order .","An appellant shall not be required to leave GPE by reason of the expiration of his leave so long as his appeal is pending against a refusal to enlarge or remove the limit on the duration of the leave . However , no appeal lies against refusal of an extension of leave to remain if application therefor was made after expiry of the existing leave .","Except as otherwise provided by LAW , an adjudicator is , under section CARDINAL(CARDINAL ) , to allow an appeal only if he considers :","( a ) that the decision or action in question was not in accordance with the law or any immigration rules applicable to the case ; or","( b ) that , where the decision or action involved the exercise of a discretion by the Home Secretary or an officer , that discretion should have been exercised differently .","If , however , the decision or action is in accordance with the rules , the adjudicator may not review a refusal by the Home Secretary of a request , by the person concerned , that he should depart from the rules ( section CARDINAL(CARDINAL ) ) .","Where an appeal is allowed , the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations ; the directions are binding on the ORG Secretary except so long as an appeal to ORG can be brought or is pending ( sections ORG ) and CARDINAL ) ) .","Any party to an appeal to an adjudicator may appeal against his decision to ORG , which may affirm that decision or make any other decision which the adjudicator could have made ; it also has similar duties and powers in the matter of directions and recommendations . As the law stood at the relevant time , leave to appeal had generally to be obtained ; it had to be granted , inter alia , if determination of the appeal turned upon an arguable point of law ( section CARDINAL(CARDINAL ) of LAW and Rule CARDINAL of ORG DATE ) .","( a ) The Government estimated total immigration into GPE from GPE ( that is , the ORG except GPE , GPE and GPE ) at CARDINAL in the period from DATE to DATE . It was thought that by DATE CARDINAL people had the right of abode ( see paragraphs CARDINAL - CARDINAL above ) in GPE . DATE , a further CARDINAL people were estimated to have settled in that country from ORG and GPE , CARDINAL from non - Commonwealth countries other than GPE and CARDINAL from GPE ( GPE , GPE and GPE ) ; relatively few countries were said to have accounted for most of this immigration .","The official estimates for DATE show that the population of GPE ( CARDINAL ) included CARDINAL persons of GPE and GPE origin ( of whom CARDINAL were in the LOC area ) and CARDINAL other persons not born in GPE ( including those born in GPE but not those born in GPE ) . It is estimated that the population of GPE and GPE origin could rise to CARDINAL by DATE and CARDINAL ( MONEY of the projected total population ) by DATE .","( b ) According to the ORG , CARDINAL persons entered GPE DATE under the \" GPE ancestry rule \" ( see paragraph CARDINAL above ) , but many of them emigrated after DATE .","( c ) In DATE , there was an average net DATE emigration from GPE of CARDINAL , but the population density in DATE - CARDINAL persons per square CARDINAL or QUANTITY for GPE alone - was higher than that of any other member ORG of ORG .","( d ) Statistics supplied by the Government showed that in GPE in DATE MONEY of all men of working age and MONEY of all women of working age were \" economically active \" ( that is , either in employment , or self - employed , or unemployed ) . The corresponding figures for persons coming from the NORP sub - continent were MONEY for men and MONEY for women and , for persons coming from GPE or GPE , MONEY for men and MONEY for women . The statistics also disclosed that a considerably higher proportion of \" economically active \" women ( particularly married women ) than men were in part - time employment only - MONEY of married women , compared with MONEY of men .","DATE have seen a high level of unemployment in GPE . In DATE , MONEY of \" economically active \" men and MONEY of \" economically active \" women were unemployed , as measured by official figures based on persons claiming unemployment benefit . There was a marked increase DATE , when the figures rose from PERCENT MONEY and from CARDINAL to MONEY , respectively .","( e ) The Government also produced to the ORG detailed statistics in support of their claim that the overall effect of the DATE Rules had been to lead to an DATE reduction of CARDINAL ( rather than CARDINAL , as they had estimated before the Commission ) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world . They recognised , however , that part - though not a major part - of this figure might represent a decrease attributable to economic conditions . In their submission , this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into GPE . The latter figures ( CARDINAL of which were in DATE accounted for by wives and children of men already settled in the country ) were : over CARDINAL in DATE and in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; and CARDINAL in DATE . The number of men accepted for settlement by reason of marriage was CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; and CARDINAL in DATE . The number of women so accepted was CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; CARDINAL in DATE ; and CARDINAL in DATE .","The claimed reduction of CARDINAL per annum was questioned by the applicants on the following grounds : it was based on a comparison with the figures for DATE , a year in which the number of applications from the NORP sub - continent was artificially high ; in order to take account of the delays in processing applications and the DATE waiting - period before indefinite leave to remain would be granted , a more meaningful comparison would be between the DATE and the DATE figures ; no account was taken of the natural decline in applications ; and no account was taken of persons properly excluded ( for example , on the ground that the marriage was not genuine ) .","Mrs. PERSON is permanently and lawfully resident in GPE with the right to remain indefinitely . She was born in GPE in DATE and brought up in that country . Her parents were also born there . According to her , she was a citizen of GPE at birth but , being of NORP origin , was subsequently deprived of that citizenship and is now stateless . She holds a NORP travel document .","This applicant went to GPE on DATE . She was given leave , as a \" non - patrial \" ( see paragraphs CARDINAL above ) , to enter as a visitor , leave which was subsequently extended on CARDINAL occasions . Since special vouchers had been allocated to members of her family enabling them to settle in GPE , an application was made on her behalf for indefinite leave to remain . On DATE as an act of discretion outside the immigration rules ( see paragraph CARDINAL above ) , she was given such leave , essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family , including her father and mother , settled in GPE .","Mr. PERSON is a NORP national who was born in PERSON , a former NORP territory in GPE , in DATE . He emigrated to GPE in DATE . On DATE , he was admitted , as a \" non - patrial \" , to GPE for DATE as a visitor . He met the applicant DATE and they became engaged to be married on DATE . They were married on DATE and , during DATE , Mrs. PERSON applied for leave for her husband to remain permanently in GPE . Shortly afterwards , ORG for ORG also applied for leave for him to remain , for a period of DATE .","After Mr. and Mrs. PERSON had been interviewed at ORG on DATE , her application was refused , on DATE , on the ground that she was not a citizen of GPE who , or one of whose parents , had been born in GPE ( paragraph CARDINAL of the DATE Rules ; see paragraph CARDINAL ( a ) ( i ) above ) .","Mr. PERSON appealed to an adjudicator ( see paragraphs CARDINAL above ) against this decision but the appeal was dismissed on DATE as he did not qualify for leave to remain under LAW . The adjudicator pointed out that , had the application been made before DATE or the decision taken before DATE , Mr. PERSON would have been admitted , under the previous rules ( see paragraphs CARDINAL above ) . Leave to appeal to ORG was refused by the ORG on DATE on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited ( see paragraph CARDINAL above ) .","Subsequently Mr. PERSON remained , and still remains , in GPE , without leave . He is currently employed as a chef in a restaurant ; his wife does not work . A son was born to the couple in DATE . In a letter of CARDINAL DATE to CARDINAL Member , the Minister of State at ORG indicated that the authorities would shortly be advising Mr. PERSON to depart without delay , adding that if he did not , \" consideration will have to be given to enforcing his departure \" ; however , a letter of CARDINAL DATE to another Member stated that \" [ the Minister did ] not propose for the time being to take any action regarding [ Mr. PERSON 's ] removal \" . In fact , the authorities have not to date instituted any criminal or deportation proceedings ( see paragraph CARDINAL above ) against him ; their decision , according to the Government , was taken in the light of all the circumstances , including the ORG 's decision on the admissibility of Mrs. PERSON 's application ( see paragraph CARDINAL below ) .","The couple 's situation has not until now been changed by the DATE or the CARDINAL Rules since Mrs. PERSON , although settled in GPE , is not a NORP citizen ( see paragraphs DATE above ) . She has , however , applied , on DATE , for naturalisation as such a citizen , under section CARDINAL of LAW DATE ( see paragraph CARDINAL ( d ) above ) .","At the ORG interview , Mr. PERSON said that his wife could not be expected to live in GPE because she had always been close to her family and because her sick father - who in fact died in DATE - needed her company . Before the ORG and the ORG , she claimed that her health was under strain because of her husband 's settlement problems and that humanitarian considerations prevented her going to GPE , a country where she had no family and whose language she did not speak . The Government maintain that there is no obstacle whatever to her going with her husband to live in GPE .","Mrs. PERSON is permanently and lawfully resident in GPE with the right to remain indefinitely . She was born in the GPE in DATE and was brought up there , and is of NORP origin . She had the nationality of that country until DATE ( see paragraph CARDINAL below ) . Her parents were born and live in the GPE .","This applicant went to GPE in DATE with a work permit for employment as a nursing assistant and was admitted , as a \" non - patrial \" ( see paragraphs CARDINAL above ) , for DATE . She remained in approved work thereafter and , on DATE , the conditions attached to her stay were removed and she was allowed to remain in GPE indefinitely . She is now employed , and has an established career , as a ORG - enrolled nurse .","Mr. PERSON is a citizen of the GPE , born in that country in DATE . He met the applicant in GPE in DATE when she was on holiday and again in DATE when she was there for DATE . During the latter period , the couple became engaged . On DATE , they went through a ceremony of marriage in the GPE . The applicant returned to GPE shortly afterwards to take up her job again . In DATE , she informed ORG of the marriage and applied for leave for Mr. PERSON to enter GPE , a request which she repeated in DATE . On DATE , he , being a \" non - patrial \" , applied to ORG in GPE for a visa to join his wife for settlement in GPE .","After Mrs. PERSON had supplied certain further information requested by it , ORG wrote to her on DATE to advise her that the visa application had been refused on the ground that she was not a citizen of GPE who , or one of whose parents , had been born in GPE ( paragraph CARDINAL of the DATE Rules ; see paragraph CARDINAL ( a ) ( ii ) above ) . Notice of the decision was not handed to Mr. PERSON until DATE as he had failed to respond to an invitation of DATE to attend at ORG for that purpose .","On DATE , ORG for ORG wrote to ORG , seeking a review of this decision . However , on DATE , the ORG , having considered the circumstances , informed the ORG of its decision to maintain the refusal . Mr. PERSON had on DATE lodged an appeal with an adjudicator ( see paragraphs CARDINAL above ) against the decision but the appeal was dismissed on DATE on the ground that the visa officer 's decision was in accordance with the law and the immigration rules . The adjudicator , who noted that Mrs. PERSON had not taken legal advice but had thought at the time of the marriage ceremony that a forthcoming change in the law would allow Mr. PERSON to be admitted , expressed the hope that the authorities would look at the case sympathetically . This was not initially recognised by the authorities as a recommendation , but the ORG Secretary subsequently concluded that there were not sufficient grounds for acting outside the immigration rules . There is no record of an application for leave to appeal to ORG . Representations to ORG were also rejected , basically on the ground that the couple could live together in the GPE and that there were not sufficient reasons for the ORG Secretary to exercise his extra - statutory discretion .","DATE and DATE , Mr. PERSON continued to live in the GPE and the couple were separated , apart from a short period in DATE when Mrs. PERSON visited that country . However , following an application made by her in DATE under LAW DATE ( see paragraph CARDINAL ( d ) above ) , Mrs. PERSON obtained naturalisation as a NORP citizen with effect from DATE ; she thereby lost her NORP citizenship . On DATE , Mr. PERSON applied for entry clearance for permanent settlement as the husband of a NORP citizen , under paragraph CARDINAL of the DATE Rules ( see paragraphs DATE above ) . For the reasons and in the circumstances indicated in the following paragraph , this application was refused on DATE but , on DATE , Mr. PERSON applied for and was granted a visa entitling him to enter GPE for DATE for the purposes of marriage . He arrived in that country on DATE and the parties were married there on DATE . On DATE , he was granted leave to remain as a husband for DATE ; on the expiry of that period , he will be eligible to apply for indefinite leave .","In a memorial filed with ORG on DATE , the ORG questioned the validity of the DATE marriage ( see paragraph CARDINAL above ) . Under Articles CARDINAL and CARDINAL of the Philippine Civil Code , a marriage solemnised without a licence was to be considered void , save in the case of a \" marriage of exceptional character \" , that is CARDINAL between persons who have lived together as husband and wife for DATE ( Article CARDINAL ) . The ORG marriage contract recited that the ceremony the couple went through in DATE had been performed , without a licence , under LAW . The parties had stated in a contemporaneous affidavit that they had previously cohabited for DATE , but according to Mrs. PERSON ' version of the facts this could not be so since she had not met Mr. PERSON until DATE ( see paragraph CARDINAL above ) . According to the Government , the requirements of LAW were therefore not satisfied and the marriage thus had to be considered void .","At the hearings on DATE , the applicant 's counsel expressed the view that , assuming a defect existed , it was purely formal and the status of Mr. and Mrs. PERSON could be regarded as akin to that of the parties to a common - law marriage . Her representative subsequently filed with the ORG details of the advice he had received from NORP lawyers , to the effect that under the law of that country the marriage was to be presumed valid unless and until it was declared void by a court . The Government replied that they had been advised that the marriage was void ab initio and that no judicial decree was necessary to establish its invalidity . This opinion was contradicted in further advice obtained on behalf of Mrs. PERSON .","Mr. and Mrs. PERSON were interviewed by the GPE authorities in DATE and DATE . They adduced no evidence to alter the ORG 's conclusion that the marriage was void . However , Mrs. PERSON stated that if Mr. PERSON were admitted to GPE , the couple would go through a ceremony of marriage in that country . It was in these circumstances that in DATE Mr. PERSON was refused leave to settle as a husband but was regarded as eligible , under the DATE Rules , for leave to enter GPE temporarily as the fianc\u00e9 of a NORP citizen .","Before the ORG and the ORG , Mrs. PERSON submitted that there would have been real obstacles to her returning to live in the GPE : she was too old , her qualifications were not recognised there and , by working in GPE , she was able to support financially her parents and other members of her family . These claims were contested by the Government , in particular on the ground that it was unrealistic to suppose that her nursing skills could not be put to good use in the GPE .","Mrs. PERSON is permanently and lawfully resident in GPE with the right to remain indefinitely . She was born in GPE in DATE or DATE . Her parents were born and live in that country .","This applicant first went to GPE in DATE and was given leave , as a \" non - patrial \" ( see paragraphs QUANTITY above ) , to enter as a visitor for DATE . Subsequently , she obtained several further leaves to remain , as a visitor or a student , the last being until DATE . She has a high level of university education . In DATE , she married a Mr. PERSON , a citizen of GPE , and , DATE , was given indefinite leave to remain in GPE , by virtue of her marriage , under the provisions then in force . On DATE , again by virtue of her marriage , she obtained registration as a citizen of GPE under LAW DATE , as a result of which she became a \" patrial \" ( see paragraphs CARDINAL in fine and CARDINAL ( a ) above ) . At that time , she was already separated from Mr. PERSON and the marriage was dissolved in DATE .","Mr. PERSON is a NORP national born in GPE on DATE . In DATE , he was granted leave , as a \" non - patrial \" , to enter GPE , apparently as a visitor , for DATE . Subsequently , he obtained leave to remain as a student until DATE . His application of DATE for an extension of this leave was refused on DATE because he had not attended his course of studies and the ORG Secretary was not satisfied that he was a genuine student who intended to leave the country on their conclusion . Since his application for an extension had been made after his leave had expired , he had no right of appeal under LAW ( see paragraph CARDINAL above ) ; he was advised to leave GPE and warned of the risk of criminal or deportation proceedings ( see paragraph CARDINAL above ) if he did not .","Since DATE , the applicant had been living with Mr. PERSON . In DATE they had a son , who has the right of abode in GPE . On DATE , an application was made by ORG for ORG for leave for Mr. PERSON to remain in GPE until he married his fianc\u00e9e , the applicant . They were interviewed together by ORG officials on DATE and produced evidence of their marriage , which had been celebrated in DATE . The application was therefore treated as one to remain as the husband of a woman settled in GPE .","Leave was refused on DATE on the ground that Mrs. PERSON was not a citizen of GPE who , or one of whose parents , had been born in GPE ( paragraph CARDINAL of the DATE Rules ; see paragraph CARDINAL ( a ) ( i ) above ) . There was no right of appeal against this decision as Mr. PERSON had no current leave to remain at the time when his application was made ( see paragraph CARDINAL above ) . Representations through a Member of ORG to ORG were rejected , basically on the ground that the couple could live together in GPE and that there were not sufficient compelling compassionate circumstances to warrant exceptional treatment outside the immigration rules . In a letter of DATE to the Member , the Minister of State at ORG wrote that \" Mr. PERSON should now make arrangements to leave GPE forthwith , otherwise arrangements will be made to enforce his departure \" ; however , a letter of DATE to the Member stated that \" [ the Minister did ] not propose for the time being to take any action against [ Mr. LANGUAGE ] \" . In fact , the authorities did not at any time institute criminal or deportation proceedings ( see paragraph CARDINAL above ) against him ; their decision , according to the Government , was taken in the light of all the circumstances , including the ORG 's decision on the admissibility of Mrs. PERSON 's application ( see paragraph CARDINAL below ) .","On DATE , as the husband of a NORP citizen , Mr. PERSON was given DATE leave to remain in GPE in accordance with paragraph CARDINAL of LAW ( see paragraph CARDINAL ( a ) above ) ; this was possible because , on DATE , Mrs. PERSON had automatically acquired NORP citizenship by virtue of LAW DATE ( see paragraph CARDINAL ( b ) above ) . Mr. PERSON subsequently applied for indefinite leave to remain and this was granted on DATE under paragraph CARDINAL of the CARDINAL Rules ( see paragraph CARDINAL above ) . In DATE , he was working in the catering business and planned shortly to open a restaurant ; his wife was working DATE a week in a creche .","Before the ORG and the ORG , Mrs. PERSON submitted that there would have been real obstacles to her going with her husband to live in GPE : she cited her strong ties to GPE and alleged that as an educated woman and the mother of an illegitimate child she would have been treated as a social outcast in GPE . The Government maintain that there were no real obstacles ."],"violated_articles":["13","14","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92807","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2009,"docname":"TODOROVI v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicants , Todor PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .","The applicants are spouses . In DATE they bought from the ORG municipality a ORG - owned apartment , which had been managed by the company C.","On DATE the applicants bought from the municipality an attic room in the same building for CARDINAL old NORP levs ( \u201c BGL \u201d ) .","Apparently , following the legal reforms of DATE ( see below , Relevant background facts , domestic law and practice ) , the company C. considered that it had become the owner of the attic room and on an unspecified date it granted the tenancy of the room to PERSON and PERSON","In DATE the applicants brought a rei vindicatio action against PERSON and PERSON claiming the possession of the room .","In a judgment of DATE ORG dismissed the claim . On DATE ORG upheld the lower court \u2019s judgment . It found , inter alia , that the sale contract of DATE was null and void ab initio as it had not been signed by the mayor , as required by law , but by another official of the municipality . The applicants , thus , had not shown that they were the owners of the attic room .","In the meanwhile , on DATE the company ORG sold the attic room to PERSON and PERSON","On DATE the applicants brought an action against C. seeking back the price they had paid for the attic room in DATE , updated in accordance with the inflation indexes .","On DATE ORG dismissed the claim finding that the DATE sale contract had been found to be null and void in proceedings , which had not involved the company C. ; it was not therefore bound by this founding of nullity .","Upon appeal by the applicants , on DATE ORG reversed the judgment and held that the applicants were in principle entitled to recovery of the sum . It awarded them the amount they had paid for the attic in DATE , the equivalent of ORG CARDINAL . However , as a result of inflation and the depreciation of the NORP currency after DATE , the sum amounted to approximately LAW .","In a final judgment of DATE ORG dismissed the applicants\u2019 claim . It found that the action had been time - barred as the DATE time limit for seeking the recovery of what had been paid under a void contract started running from DATE of payment , which in this case had been in DATE .","By section CARDINAL ( CARDINAL ) of LAW , everyone who has paid a sum of money on a non - existent ground is entitled to seek its recovery . In a binding interpretative decision of DATE ORG ( now ORG ) held that the time - limit to bring such an action started running from the moment of payment ( ORG No . CARDINAL of the Plenary of ORG of CARDINAL DATE , case No . CARDINAL\/CARDINAL ) .","In accordance with the NORP courts\u2019 established practice revalorisation of claims to reflect inflation and currency depreciation is not possible .","Until DATE , all commercial assets were the property of the ORG and were only allocated to ORG enterprises for \u201c use and management \u201d . After the beginning of democratisation and economic change and the ensuing transformation of these enterprises into ORG - owned limited liability or joint stock companies , the transformed companies acquired ownership of real estate or other assets they had used and managed ( see , for more detail , the ORG \u2019s description of this transformation in the case of ORG and Others v. GPE ( no . CARDINAL\/CARDINAL , ORG DATE ) ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90244","languageisocode":"ENG","respondent":"CYP","branch":"CHAMBER","date":2008,"docname":"CASE OF PANOVITS v. CYPRUS","importance":3,"conclusion":"Reminder inadmissible;Violation of Art. 6-1 and 6-3-c;Violations of Art. 6-1;No violation of Art. 6-1","judges":"Christos Rozakis;Dean Spielmann;George Erotocritou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born on CARDINAL DATE and is currently serving concurrent sentences of imprisonment at FAC .","In the context of a police investigation concerning a murder and robbery which took place on DATE , the police contacted the applicant \u2019s father and invited him and the applicant to visit the GPE police station . At the time the applicant was just over DATE . The applicant went to the police station accompanied by his father . The GPE District Police Director ( hereinafter \u201c the Police Director \u201d ) informed the applicant \u2019s father , in the presence of the applicant , about the crime that had been committed , the seriousness of the case , and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him .","According to the applicant , he immediately stated that he was innocent . Another police officer told him that his friend had already confessed to murdering the victim together with the applicant . The police officer added that the applicant \u2019s friend was crying and hitting his head against a wall while he ( the applicant ) was merely lying to them . Then , another police officer came into the Police Director \u2019s room holding an arrest warrant and informed the applicant that he was under arrest for murder . The applicant replied that he had nothing to add to his statement that he was innocent . The police officer then told the applicant to follow him into a different office . There there were CARDINAL or CARDINAL officers who started asking him questions and inducing him to confess , promising that if he did so they would assist him . They questioned him for TIME but he kept saying that he could not remember anything as he had been very drunk TIME . At some stage during the interrogation a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do . The police officers told him that if he wanted to go he should confess . Subsequently a police officer suggested that they take a written statement from the applicant and that the police officers would remind him of anything he could not remember . The applicant then agreed to make a written statement . He denied having made any prior oral admission .","According to the ORG , relying on the testimonies of the police officers participating in the interrogation , the applicant was shown the arrest warrant and informed of the reasons for his arrest , and had his attention drawn to the law . The applicant replied that he had nothing to say other than that he was innocent . He was then taken to a different room for questioning . Before the applicant was questioned the arresting officer explained again the reasons for his arrest , repeated that there was evidence involving the applicant in the circumstances under investigation and cautioned him that anything he said could be used against him in subsequent proceedings . There were CARDINAL police officers present in the room . The applicant replied that he had not intended to kill anyone and started to give an explanation of the events . According to the arresting officer , the applicant was interrupted and his attention was drawn to the law . During the questioning the applicant confessed his guilt .","The parties agreed that when the applicant was taken away for questioning , his father remained in the Police Director \u2019s office . He was shocked and after TIME told the Police Director that they should not use violence against his son . The Police Director replied that the police did not use such practices and added that the case was serious , that there was evidence linking the applicant with the crime and that it was important to seek the advice of a lawyer . He asked the applicant \u2019s father whether he wanted to be present while his son was questioned . The father declined the offer . TIME , a police officer entered the room and informed the Police Director and the applicant \u2019s father that the applicant had confessed . The Police Director invited the applicant \u2019s father to join his son in the interview room so that he could hear what his son had admitted . The applicant \u2019s father preferred to wait outside .","The applicant was charged with manslaughter and robbery under LAW ( PERSON . CARDINAL ) . On DATE the applicant noted in an additional written statement : \u201c I did not hit him ( the victim ) with the stone but only kicked him a couple of times . \u201d","NORP The applicant and his co - accused were brought for trial before ORG .","During the trial the applicant maintained that his confession to the police had not been voluntary but the product of deception , psychological pressure , promises , threats and other tactics aimed at creating fear . He also argued that at the time he had made his statement to the police he had been drunk and , therefore , he had not been in a position to remember accurately the facts described in that statement . Furthermore , the applicant argued that he had not had legal advice immediately after his arrest and before being questioned and induced to sign the written statement .","On DATE the court heard the evidence of the Police Director concerning the applicant \u2019s arrest and questioning . The Director confirmed that he had invited the applicant and his father to his office , where he had told the father , without addressing the applicant , that an arrest warrant had been issued against the applicant in connection with a murder and that there was evidence linking the applicant to the crime . The applicant had then been cautioned , arrested and taken into a separate room for questioning . Shortly after the applicant left the room the Director had explained to the applicant \u2019s father the seriousness of the case and suggested that they find a lawyer .","On DATE ORG , having considered all the evidence put before it , found that the applicant \u2019s confession had been voluntary and that he had not been subjected to any undue or improper pressure by the police to secure it . The evidence of the prosecution gave a clear picture of the events that had taken place and the court dismissed the applicant \u2019s allegations that , at the time of his confession , he had suffered loss of memory due to drunkenness . The confession was , therefore , admissible as evidence .","As regards the applicant \u2019s claims concerning the lack of legal representation before his questioning , the court noted that the defence had not relied on any provision or authority recognising a right to have legal advice as a condition for receipt of an accused \u2019s statement . Nor had the applicant or his father requested a lawyer and been refused CARDINAL by the police . Moreover , the Director of Police had advised the applicant \u2019s father that he and his son should seek legal representation . Overall , there had been no inappropriate action on the part of the police in this respect .","Subsequently , on DATE , during the main trial , the following exchange took place between the applicant \u2019s lawyer , Mr GPE , and the bench ( translation of verbatim record of the proceedings ) :","\u201c Mr PERSON : I will ask the prosecution to give me all the statements of suspects who made a statement about this case so that I can continue my cross - examination of this witness . The prosecution is obliged to supply me with all the statements taken from other suspects and it is not permissible in our view for the prosecution to hide behind this .","Court : First we want you to lower the tone of your voice . You do not let slip an opportunity to attack the prosecution who we believe is trying to present its case in a fair way , at least as the facts so far show . If you asked at some stage for the statements to be given to you and the prosecution refused , that is another matter .","Mr PERSON : I believed that I would get this from the case file , now I am deprived of this right . I want the complete case file . I can not continue my cross - examination of this witness if I do not have the complete case file .","PERSON ( prosecutor ) : The position of the prosecution on the basis of LAW ( is that ) to make any complaint the Defence must apply in writing to the prosecution to ask for any statement in the file and if the Prosecution refuses , then the defence is entitled to complain .","Here , the defence did not apply in writing ; certain particulars , photographs , plans were asked for verbally and whatever was asked for was given and the prosecution never refused to give anything to the defence . This process did not happen and it is my position that this attitude of the defence is not justified .","Court : We have considered the request of the learned counsel of accused no . CARDINAL for the ORG to interrupt the proceedings so that he can get statements of persons who gave statements during the investigation of the case from his opponents . As stated earlier today , the defence had a right , on the basis of LAW , Cap.CARDINAL , to request to be supplied with the said copies from DATE when the accused pleaded not guilty , but failed to do so .","We do not consider it expedient to break after so much delay and to create a fresh delay for this purpose . In any case , the ORG in the present case is occupied with whether the prosecution will succeed in proving the guilt of the accused , who we note are presumed innocent until the prosecution , with their evidence , prove their guilt beyond all reasonable doubt .","Whether the examination was unsatisfactory or not is a matter which will be decided at the end of the case . The request is therefore refused .","Mr PERSON : I would ask for a break of TIME in view of your ruling to gather my thoughts and see how I shall proceed because I believed that there would be disclosure of all the documents , for this reason I want TIME to think about what I shall do in view of your ruling , that is to say how I shall proceed with the cross - examination . The cross - examination will take another sitting of the court . So TIME I am asking for are not unjustifiable .","Court : We will approve a break of TIME but we will remind ( the defence ) that it is the second time that an interruption of the proceedings has been requested for inspecting the case file . We had a break in a previous session and gave a sufficient interval for them to see the file . \u201d","Following the break , the proceedings were resumed . At CARDINAL point a confrontation occurred between the applicant \u2019s lawyer , PERSON , and the court . PERSON was at the time cross - examining a police officer who had taken the applicant \u2019s written statement and was asking him about the manner in which an indication by another police - officer to insert the time of taking the statement was made . The court interrupted PERSON and noted that they found his questions unnecessary . PERSON then sought leave to withdraw from the case which was refused . The verbatim record of the proceedings reports the following exchange ( translation ) :","\u201c Court : We consider that your cross - examination goes beyond the detailed cross - examination that can take place at the present stage of the main trial in issues ...","Mr PERSON : I will stop my cross - examination ...","Court : Mr Kyprianou ...","Mr PERSON : Since the ORG considers that I am not doing my job properly in defending this man , I ask for your leave to withdraw from this case .","Court : Whether an advocate is to be granted leave to withdraw or not , is a matter within the discretionary power of the court and , in the light of what we have heard , no such leave is granted . We rely on the case of GPE and Others v. the Republic and do not grant leave .","Mr PERSON : Since you are preventing me from continuing my cross - examination on significant points of the case , then my role here does not serve any purpose . \u201d","Court : We consider your persistence ...","Mr PERSON : And I am sorry that when I was cross - examining , the members of the court were talking to each other , passing \u2018 ravasakia\u2019 among themselves , which is not compatible with allowing me to continue the cross - examination with the required vigour , if it is under the secret scrutiny of the court .","Court : We consider that what has just been said by PERSON , and in particular the manner in which he addresses the court , constitutes a contempt of court and PERSON GPE has CARDINAL choices : either to maintain what he said and to give reasons why no sentence should be imposed on him , or to decide whether he should retract . We give him this opportunity exceptionally . Section CARDINAL ( CARDINAL ) ( a ) of ORG PERSON applies to its full extent .","Mr PERSON : You can try me .","Court : Would you like to say anything ?","Mr PERSON : I saw with my own eyes the small pieces of paper going from CARDINAL judge to another when I was cross - examining , in a way not very flattering to the defence . How can I find the stamina to defend a man who is accused of murder ?","Court ( Mr PERSON ) : It so happens that the piece of paper to which Mr PERSON refers is still in the hands of brother Judge PERSON and PERSON may inspect it .","Court ( PERSON ) : The exchange of written views between the members of the bench as to the manner in which PERSON is conducting the case does not give him any rights , and I consider PERSON behaviour utterly unacceptable .","Court ( Mr PERSON ) : We shall have a break in order to consider the matter . The defendant ( in the main trial ) should in the meantime remain in custody .","...","Court : We considered the matter during the adjournment and continue to believe that what Mr PERSON said , the content , the manner and the tone of his voice , constitute a contempt of court as provided for in DATE ( CARDINAL ) ( a ) of ORG ... that is , showing disrespect to the court by way of words and conduct . We already asked PERSON before the break if he had anything to add before we pass sentence on him . If he has something to add , let us hear him . Otherwise , the court should proceed .","Mr PERSON : Mr President , certainly during the break , I wondered what the offence was which I had committed . The events took place in a very tense atmosphere . I am defending a very serious case ; I felt that I was interrupted in my cross - examination and said what I said . I have been a lawyer for DATE , my record is unblemished and it is the first time that I face such an accusation . That is all I have to say .","Court : We shall adjourn for TIME and shall then proceed with sentencing . \u201d","After a short break ORG , by a majority , sentenced PERSON GPE to CARDINAL days\u2019 imprisonment . The court referred to the above exchange between Mr PERSON and its members and held as follows :","\u201c ... It is not easy , through words , to convey the atmosphere which Mr PERSON created since , quite apart from the unacceptable content of his statements , the tone of his voice as well as his demeanour and gestures to the court not only gave an unacceptable impression of any civilised place , and a courtroom in particular , but were apparently aimed at creating a climate of intimidation and terror within the court . We are not exaggerating at all in saying that PERSON was shouting and gesticulating at the court .","It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak . And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise , PERSON , in the same tone and with the same intensity already referred to , shouted , \u2018 You can try me\u2019 .","Later , after a long break , PERSON was given a second chance to address the court , in the hope that he would apologise and mitigate the damage caused by his behaviour . Unfortunately , at this stage Mr PERSON still showed no signs of regret or , at least , of apprehension for the unacceptable situation he had created . On the contrary , he stated that during the break he wondered what his crime had been , merely attributing his behaviour to the \u2018 very tense atmosphere\u2019 . However , he was solely responsible for the creation of that atmosphere and , therefore , he can not use it as an excuse .","Mr PERSON did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of \u2018 ravasakia\u2019 , that is , \u2018 love letters\u2019 ( See : \u2018 Dictionary of Modern NORP ravasaki ( NORP ravas ) , love letter , written love ORG ) . And he accused the ORG , which was trying to regulate the course of the proceedings , as it had the right and the duty to do , of restricting him and of doing justice in secret .","We can not conceive of another occasion of such a manifest and unacceptable contempt of court by any person , let alone an advocate .","The judges as persons , whom PERSON has deeply insulted , are the least of our concern . What really concerns us is the authority and integrity of justice . If the court \u2019s reaction is not immediate and drastic , we feel that justice will have suffered a disastrous blow . An inadequate reaction on the part of the lawful and civilised order , as expressed by the courts , would mean accepting that the authority of the courts be demeaned .","It is with great sadness that we conclude that the only adequate response , in the circumstances , is the imposition of a sentence of a deterrent nature , which can only be imprisonment .","We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing , but it is PERSON himself who , through his conduct , brought matters to this end .","In the light of the above we impose a sentence of imprisonment of DATE \u201d .","Mr GPE served his prison sentence immediately . He was in fact released before completing the full term in accordance with section QUANTITY of the Prison Law ( Law no . CARDINAL(I)\/CARDINAL ) .","NORP The applicant continued to be represented by PERSON for the rest of his trial .","On DATE the defence requested the judges to withdraw from the case in view of the events that had occurred so that the case could be tried by another bench . Mr PERSON requested that the court be addressed by another lawyer in this respect , given the fact that he had been directly concerned by the court \u2019s decision on contempt . The defence was concerned that the court would not be impartial . This request was granted .","On DATE , by an interim decision , ORG dismissed the request for its withdrawal . Having examined the relevant case - law on the issue it found that no ground had been established for its withdrawal . In this connection it noted that :","\u2013 as opposed to plain rumours or the manner in which the matter had been presented in the media DATE would justifiably form the impression that there was a real likelihood of prejudice by the court against the defendant simply because of its conclusion that his lawyer \u2019s behaviour , at some stage of the proceedings , had been in contempt of court \u201d .","Given that its decision on contempt had been a decision reached within the context of its exercise of its judicial functions and , as such , there was no issue of personal feelings of the judges or any prejudice on the part of the court , there was no reason why the court should abandon the examination of the case before the completion of the trial .","The proceedings therefore continued before the same bench .","On DATE ORG found the applicant guilty of manslaughter and robbery . The court dismissed the applicant \u2019s allegations that his confession had been fabricated by the police and taken under suspicious circumstances . It found that there had been clear , independent and persuasive evidence demonstrating the genuine nature of his confession to the police . Furthermore , it noted that apart from the free and voluntary confession , the conclusion about the applicant \u2019s guilt was supported by other strong and independent evidence and facts . In particular , the court relied on the applicant \u2019s further statement of CARDINAL DATE ( see paragraph CARDINAL above ) , placing the applicant at the time and place of the crime and confirming that he used force against the victim , a statement of a friend of the applicant to whom the applicant had stated that he had been involved in a serious fight with the victim , and various testimonies confirming that the applicant had been seen in a pub drinking and talking to the victim , leaving the pub right after the victim and heading in the same direction as the victim . Moreover , further testimonies confirmed that the applicant was seen in TIME of the following TIME drinking in another pub dressed in clothes covered in mud . The medical evidence concerning the victim \u2019s death had confirmed that the cause of death had been multiple and violent blows , a finding which was consistent with the applicant \u2019s CARDINAL statements as well as that of his co - accused . The confession of his co - accused could not be treated as evidence against the applicant .","On DATE ORG sentenced the applicant to CARDINAL concurrent sentences of imprisonment for DATE for manslaughter and robbery respectively .","On DATE the applicant lodged an appeal with ORG against his conviction and sentence .","In challenging his conviction he repeated his arguments concerning the involuntary nature of his confession , the circumstances in which it had been taken and the violation of his right to the assistance of a lawyer . In particular , it was emphasised that the Director of Police had not advised the applicant himself that he should consult a lawyer and had not warned the applicant that he was under no obligation to state anything about the case . Moreover , the applicant maintained that his conviction had been the direct consequence of the hostility which had been openly expressed by ORG towards his lawyer , who had also been tried , convicted by the same court for contempt and imprisoned . As a result , the applicant \u2019s confidence in the impartiality of the court and his lawyer had been shaken .","NORP The prosecution also lodged an appeal challenging the sentence imposed as \u201c manifestly insufficient \u201d in the circumstances .","On DATE ORG dismissed both appeals .","As to what had occurred at the pre - trial stages of the proceedings ORG noted that the applicant had gone to the police station accompanied by his father and both had been informed about the crime , the suspicion that the applicant had been involved in it and that they could be assisted by a lawyer if they so wished . The applicant had stated that he was innocent ; he had then been arrested and taken for questioning in a different room . When his son had been taken for questioning the applicant \u2019s father had been warned about the seriousness of the case , that they could consult a lawyer and that he could be present during the questioning . However , he had preferred to wait outside . TIME the applicant \u2019s father and the Police Director had been informed that the applicant had confessed his guilt . The court observed that the fact that the applicant had confessed did not necessarily lead to the conclusion that something improper had occurred .","As to the applicant \u2019s confession , the court noted that it had constituted the subject of a separate hearing within the trial and that ORG had concluded that it had been the product of the free will of the applicant and found it admissible as evidence . The court observed that ORG , following settled principles of NORP jurisprudence , had re - examined the content of the statement in the light of the entirety of the evidence in the main trial . Its judgment was elaborate and the evidential material was discussed with meticulousness together with the arguments of the parties . A simple reading of the minutes confirmed the correctness of ORG judgment . As for the applicant \u2019s credibility , ORG noted that :","\u201c as a general comment , ... the appellant appeared , as it is shown by the evidence , to have had a selective memory . He remembered all the details which did not incriminate him while he had complete lack of memory in respect of all the elements which linked him to the crime . This attitude is evident from his evidence both in the main trial and in the trial within a trial concerning the voluntariness of the contested statement . And in both proceedings he tried to negate the statements he had made in his earlier written confession . \u201d","Moreover , there was sufficient , powerful and independent evidence putting the applicant at the time and place of the crime . Such evidence taken together with the applicant \u2019s admission contained in a second statement , the admissibility of which was not contested as having been submitted on an involuntary basis , rendered the applicant \u2019s guilt proven beyond any reasonable doubt .","ORG also dismissed the applicant \u2019s argument concerning ORG alleged lack of impartiality in view of his lawyer \u2019s conviction for contempt of court . In particular it stated the following :","\u201c Following his conviction by ORG ( for contempt of court ) Mr PERSON requested to withdraw from the proceedings and to stop acting as counsel for the appellant .... The appellant \u2019s argument that , in view of what had happened before ORG , this ceased to be an impartial court and the trial was rendered unfair , is incorrect . A simple reading of the voluminous transcript of the proceedings demonstrates the smooth conduct of the trial , in which all the evidence was presented before the court , which had to evaluate it and decide the extent to which the prosecution had managed to prove the charges against the appellant beyond all reasonable doubt . We have indicated above that the evidence against the appellant was conclusive . His advocate had put to ORG everything that could be submitted in his defence in a trial ; a task which was , admittedly , rather difficult . ORG decision not to allow the advocate to withdraw in the middle of the trial or to withdraw itself from the case , which would have led to a retrial , did not render the trial unfair , while the court itself had , in our opinion , preserved its impartiality throughout the proceedings . \u201d","Finally , as regards the sentence imposed by ORG , ORG found that there had been evident leniency in sentencing , making the length of the prison sentence imposed almost manifestly insufficient . Nevertheless , it decided not to interfere with ORG decision in this respect .","Concerning the Mr Kyprianou \u2019s request to stop acting as counsel for the applicant ( see paragraphs CARDINAL above ) , the Government clarified that it was made before the contempt proceedings . This was supported by the applicant and the relevant transcript of the proceedings .","DATE ( CARDINAL ) of LAW provides as follows :","\u201c Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing . \u201d","Article CARDINAL ( CARDINAL ) and ( CARDINAL ) of the LAW provides , in so far as relevant , as follows :","( CARDINAL ) \u201c Every person charged with an offence shall be presumed innocent until proved guilty according to law .","( CARDINAL ) Every person charged with an offence has the following minimum rights :","( a ) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him ;","( b ) to have adequate time and facilities for the preparation of his defence ; ... \u201d","DATE ( CARDINAL ) and ( CARDINAL ) provides , in so far as relevant , as follows :","( CARDINAL ) \u201c In the determination of his civil rights and obligations or of any criminal charge against him , every person is entitled to a fair and public hearing within a reasonable time by an independent , impartial and competent court established by law .","...","( CARDINAL ) Every person has the right :","( a ) to be informed of the reasons why he is required to appear before the court ;","( b ) to present his case before the court and to have sufficient time necessary for its preparation .... \u201d .","The ORG provides in LAW , which broadly corresponds to LAW , that :","\u201c In the case of juvenile persons , the procedure shall be such as will take account of their age , and the desirability of promoting their rehabilitation . \u201d","Section CARDINAL of LAW , PERSON . CARDINAL provides as follows :","\u201c Without prejudice to the generality of section CARDINAL of this PERSON and without prejudice to the operation of LAW the rules for the time being approved by Her ORG of ORG in GPE relating to the taking of statements by police officers ( known as \u2018 The Judges\u2019 Rules\u2019 ) shall apply to the taking of statements in the Colony as they apply to the taking of statements in GPE \u201d .","Section CARDINAL of LAW , PERSON . CARDINAL provides , in so far as relevant , as follows :","\u201c ... Any [ arrested ] person while in custody shall be given reasonable facilities for obtaining legal advice , for taking steps to obtain bail and otherwise for making arrangements for his defence or release . \u201d","Rule II of the Judges\u2019 Rules provides as follows :","\u201c As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence , he shall caution that person or cause him to be cautioned before putting to him any questions , or further questions , relating to that offence .","The caution shall be in the following terms :","\u2018 You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.\u2019 \u201d","The ORG standards on police detention were set out in its CARDINALnd ORG [ ORG ( CARDINAL ) CARDINAL ] as follows :","The ORG attaches particular importance to CARDINAL rights for persons detained by the police : the right of the person concerned to have the fact of his detention notified to a third party of his choice ( family member , friend , consulate ) , the right of access to a lawyer , and the right to request a medical examination by a doctor of his choice ( in addition to any medical examination carried out by a doctor called by the police authorities ) . They are , in the ORG \u2019s opinion , CARDINAL fundamental safeguards against the ill - treatment of detained persons which should apply as from the very outset of deprivation of liberty , regardless of how it may be described under the legal system concerned ( apprehension , arrest , etc ) .","Persons taken into police custody should be expressly informed without delay of all their rights , including those referred to in paragraph CARDINAL . Further , any possibilities offered to the authorities to delay the exercise of CARDINAL or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time . As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police , systems whereby , exceptionally , lawyers and doctors can be chosen from pre - established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights .","Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer ( in both cases under conditions guaranteeing the confidentiality of their discussions ) as well as , in principle , the right for the person concerned to have the lawyer present during interrogation .","The ORG standards on juveniles deprived of their liberty were set out in the ORG \u2019s ORG [ ORG ( CARDINAL ) CARDINAL ] as follows :","\u201c In this context , the ORG has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill - treatment is at its greatest . It follows that it is essential that all persons deprived of their liberty ( including juveniles ) enjoy , as from the moment when they are first obliged to remain with the police , the right to notify a relative or another third party of the fact of their detention , the right of access to a lawyer and the right of access to a doctor . \u201d","In PERSON v. The Republic ( CARDINAL ) CARDINAL C.L.R. CARDINAL ORG held that the court should verify the truthfulness of a confession by independent evidence . In this case the following extracts from R v PERSON . App . GPE were cited with approval :","\u201c A man may be convicted on his own confession alone ; there is no law against it ... the first question [ to be asked ] when ... examining the confession of a man , is , is there anything outside it to show it was true ? Is it corroborated ? Are the statements made in it of fact so far as we can test them true ? ... Is it [ the confession ] consistent with other facts which have been ascertained and which have been , as in this case , proved before us ? ... \u201d","In the case of PERSON v. The Republic ( DATE ) CARDINAL CLR CARDINAL , the following was stated :","\u201c A confession of DATE so long as it is accepted as voluntary DATE can on its own constitute sufficient ground for an accused \u2019s conviction . No matter how voluntary a confession is , it is prudent , in accordance with the case - law ... to have , where possible , corroborating evidence in support of the accuracy of its content . That would exclude the possibility of error and discourage the interrogating authorities to seek a confession as an easy alternative to having a crime properly investigated . The content of a confession must be judged not only on the basis of the authenticity of the allegations it contains , but also in conjunction with any other testimony that tends to support or disprove the accuracy of its content . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-97751","languageisocode":"ENG","respondent":"LTU","branch":"ADMISSIBILITY","date":2010,"docname":"SEDBARIENE v. LITHUANIA","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .","On DATE the applicant 's son , ORG , who was DATE at the time , was found dead in the grounds of a kindergarten . His body showed traces of violence . DATE , the authorities opened a pre - trial investigation on suspicion that a murder had been committed ( LAW ) .","On DATE the authorities issued the death certificate , which stated that the cause of death had been the loss of body temperature .","On DATE the investigator requested the ORG ( hereinafter the \u201c MRU ORG \u201d ) to establish LOC 's cause of death .","On DATE the MRU ORG 's expert , NORP GPE , in a report ( no . MCARDINAL\/CARDINAL ( CARDINAL ) , \u201c the first expert report \u201d ) , found that FAC 's blood alcohol level content ( BAC ) and urine alcohol level content had been CARDINAL and CARDINAL respectively , which showed that , before his death , ORG had been highly intoxicated and could have died from alcohol poisoning . Given that there were no cracks in LOC skull and his inner organs had not been damaged , there was no ground to conclude that his death was the result of violence . The expert report also stated that , after sustaining the injuries , the applicant 's son could have lived for TIME and that the injuries which FAC had sustained would have amounted to a light health impairment for a living person .","The applicant and her lawyer contacted another expert , A. PERSON , asking if he would conduct a new expert examination . On DATE that expert produced his report ( no . A - KJ-CARDINAL - CARDINAL , \u201c the second expert report \u201d ) , stating that the cause of ORG 's death could have been ( gal\u0117jo b\u016bti ) a severe head injury , since FAC had sustained CARDINAL blows to the head . The expert ruled out alcohol poisoning or loss of body temperature as possible causes of death .","On DATE the prosecutors transferred the case to ORG , charging PERSON and PERSON with having lightly impaired the health of the applicant 's son , as well as offences of theft and robbery .","On DATE ORG , on a request of the prosecutor and the applicant 's counsel , commissioned the MRU FMI to conduct a new expert examination .","On DATE the MRU ORG 's experts , ORG and R. Sitien\u0117 , concluded their examination and presented their results in a report ( no . ORG ) , \u201c the third expert report \u201d ) , stating that ORG had died from alcohol poisoning and that there was no causal link between his death and the injuries he had sustained . Furthermore , there was no evidence that FAC had died from a loss of body temperature .","In view of inconsistencies in the expert reports as to the cause of ORG 's death , at a hearing held on DATE the applicant asked ORG to commission the experts who had already given their reports , as well as an expert on toxicology and a neurosurgeon , to conduct CARDINAL more expert examination .","The court dismissed the applicant 's request without giving any reasons .","On DATE the ORG convicted PERSON and PERSON of slightly impairing the health of the applicant 's son ( Article CARDINAL \u00a7 CARDINAL of LAW ) , theft ( LAW ) and robbery ( LAW ) . In so finding , the court noted that , at TIME on DATE , PERSON and PERSON , being intoxicated and with the aim of stealing from the applicant 's son , had attacked him , hitting him CARDINAL times in the area of his head , face and hands . When LOC fell , PERSON and PERSON took his jacket , wallet and CARDINAL mobile telephones , and ran away .","PERSON and PERSON were sentenced to DATE imprisonment .","The court also granted the applicant 's claim for pecuniary damages in the amount of CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) .","The applicant appealed , claiming that the lower court had wrongly convicted PERSON and PERSON of robbery , when they should have been convicted of manslaughter . The applicant argued , inter alia , that the trial court had restricted her right to submit evidence and make requests . Given that there were different hypotheses as to the reasons for her son 's death , she requested a supplementary expert report . However , the trial court dismissed her motion . Moreover , the trial court did not grant her request to have the experts examined at the hearing . Lastly , the applicant submitted that the first - instance court had inaccurately examined the evidence and had therefore reached wrong legal conclusions .","In the meantime , the applicant 's counsel approached PERSON with a request that , for a second time , he determine the cause of ORG 's death . A. PERSON consented and , on DATE , produced a new report ( no . A - KI-CARDINAL - CARDINAL , \u201c the fourth expert report \u201d ) . The applicant 's counsel presented that report to the appellate court . The report stipulated that ORG had died from multiple head injuries . The report ruled out alcohol poisoning as a possible cause of death , finding that the third expert report had been inconclusive and unfounded .","On DATE ORG examined the case on appeal and upheld the lower court 's judgment . The appellate court upheld the trial court 's decision not to order a new expert examination and not to summon the expert , PERSON , to the hearing , since , under domestic law , an expert is to be summoned only if the court decides that his testimony is necessary to explain or to supplement a written report . ORG also noted that the applicant 's right to take part in the criminal proceedings had not been breached , given that she had had a lawyer who had attended the hearing and had been able to put questions to the accused , the witnesses and those experts who had been present before the trial court . Moreover , upon a request by the applicant , the expert , PERSON , had prepared his second expert report . The applicant thus actively participated in the proceedings and the principle of adversarial proceedings had not been breached .","On DATE ORG examined the applicant 's cassation appeal . Observing that the appellate court had joined the second expert report by PERSON to the case and yet had refused to analyse it without giving any grounds for such a refusal , ORG concluded that the appellate court had breached the applicant 's right to put forward evidence and take part in the investigation .","ORG also noted that the applicant and her lawyer had asked the appellate court to summon the experts PERSON , PERSON and PERSON for questioning in open court , since they had had different views about the cause of ORG 's death . Nonetheless , the appellate court dismissed that request , again without explanation . ORG concluded that the appellate court had committed an essential breach of criminal procedure , restricting the applicant 's rights , and had failed to deal with the case thoroughly and impartially and to adopt a fair decision . The case was remitted to the court of appeal for fresh examination .","On DATE ORG varied the trial court 's judgment . The court noted that the experts had agreed on CARDINAL essential point , namely , that the loss of body temperature had not caused ORG 's death . However , they had come to different conclusions as regards the actual cause of death . For NORP GPE , it was alcohol poisoning . For PERSON , the likely cause of death was a head injury . In view of diverging conclusions , it was necessary to elucidate which evidence was more reliable .","The appellate court observed that , under domestic law , it was free to assess the evidence , relying on its inner belief . Expert or specialist reports had evidentiary value because they had been drafted by a person having specialist knowledge . Whilst conceding that the judges did not have such specialised competence , the appellate court nevertheless noted that the presence of contradictory evidence was not an absolute ground for a new expert examination to be conducted .","This time , ORG analysed the evidence which had not been examined at first instance . In particular , the appellate court studied the second expert report by A. PERSON . Experts NORP GPE , PERSON , PERSON and an expert in toxicology , P. GPE , were summoned and questioned .","The appellate court noted that the experts PERSON , PERSON and P. GPE , when questioned at the hearing , testified that GPE 's BAC had been CARDINAL , which was a lethal dose in medical theory . For the court , A. PERSON , when questioned , was not able to constructively contradict ( konstruktyviai paprie\u0161tarauti ) those expert conclusions and agreed that , had there been no sign of head injuries , the single cause of death could have been certified as alcohol poisoning .","Given the above , the appellate court concluded that PERSON previous evaluation , dismissing alcohol poisoning as the cause of death , had to be rejected ( visi\u0161kai paneigtas ) as clearly unfounded and based on an unobjective , unilateral and tendentious evaluation of the evidence . In the opinion of the court , having examined all the material in the case file and having had recourse to all possibilities of obtaining supplementary evidence , no objective and reliable data had been established to contradict the other experts ' conclusion that ORG had died of alcohol poisoning . At the same time , there was no reliable evidence to confirm , without a doubt , a supposition that FAC had died from head injuries . Consequently , when resolving the matter of the accountability of PERSON and PERSON , the applicant 's argument that the true cause of ORG 's death had not been established and that therefore yet another expert report was necessary , was unfounded .","The appellate court partly amended the judgment of CARDINAL DATE , reducing the applicant 's award for pecuniary damages to LTL CARDINAL ( approximately EUR CARDINAL ) .","On DATE ORG upheld the lower court 's reasoning and dismissed the applicant 's cassation appeal . It observed that the appellate court had granted the request of the applicant 's representative for the third expert report , had admitted in evidence the fourth expert report and examined it , had summoned and questioned the experts and had given reasons for the decision not to grant the applicant 's request for yet another expert opinion . ORG concluded that the applicant 's allegation that the lower courts had committed a breach of criminal procedure , because they had not collected enough evidence to establish the cause of her son 's death , was unfounded .","LAW provides that criminal proceedings are adversarial ( laikantis rungimosi principo","On DATE the Constitutional Court"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4626","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":1999,"docname":"SULIMENKO v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in PERSON prison .","In DATE the applicant had an accident in which his right thigh and left foot were broken . Subsequently he underwent an orthopaedic operation .","On DATE the ORG sentenced the applicant to DATE imprisonment . On DATE the same court convicted the applicant of another offence and pronounced another prison sentence .","On DATE the ORG granted the applicant a temporary suspension of the execution of his sentence and ordered his release so that he could undergo a further operation in a specialised orthopaedic hospital . The court observed that the applicant \u2019s condition necessitated a further operation on his left foot , in particular in the light of a lack of progress in the treatment he had received . It appears that , while at liberty , the applicant did not report to a hospital . Subsequently he was rearrested and began to serve his sentence again .","On DATE the applicant was convicted of another offence and again sentenced to imprisonment .","On DATE the ORG dismissed the applicant \u2019s request for release , considering that , according to a medical certificate , the recommended treatment could be provided by the prison medical services .","The applicant lodged CARDINAL complaints with ORG in which he submitted that he was not afforded adequate medical treatment in PERSON prison . In its reply of DATE , the ORG , to which the complaint had been forwarded for investigation , informed him that his medical records had been examined . It transpired therefrom that the applicant had been regularly receiving analgesics as he had been refusing to consent to an operation in the prison hospital . It was further stated that his complaints relating to the alleged lack of diligence on the part of the prison physicians , and in particular his allegations that the medical certificates issued by them falsified his actual condition and were thus in breach of the law , were unfounded .","On an unspecified later date the applicant complained to the ORG about the allegedly inadequate medical care he received in prison .","In a reply dated DATE the ORG \u2019s office informed the applicant that his complaint had been investigated . ORG had found that the applicant \u2019s right to medical care was secured by the prison authorities and , in particular , that the recommended operation could be carried out in a prison hospital . The applicant was refusing consent to an operation in a prison hospital and had been seeking a temporary release on medical grounds . It was stressed that in the past the applicant had twice obtained a temporary release , but he had not undergone any treatment while at liberty .","On DATE the ORG , sitting as a single judge , dismissed the applicant \u2019s request for temporary release . The court stated that the applicant \u2019s condition did not necessitate treatment in a public hospital , whereas he refused to consent to a treatment in a prison hospital . The applicant did not offer any guarantee that , if released , he would indeed undergo the required treatment as during his last temporary release in DATE he had been heavily drinking and had committed a new offence . Since the prison medical services could provide the applicant with the recommended treatment , there were no grounds militating for his release .","The applicant lodged an appeal with the ORG , sitting in a panel of CARDINAL judges , which was dismissed on DATE . The court had before it a medical certificate of DATE which stated that the applicant had had his right leg broken and that , as a result of this accident , he had a so - called false joint in his foot . There were no medical indications that the applicant \u2019s condition was incompatible with his detention and that he could not be treated by the prison medical services . The court considered that it was self - evident that the applicant \u2019s continuous refusal to be treated by the prison medical services was in fact a ruse aimed at obtaining release . His assertions that the treatment in prison would not bring about any satisfactory results were to be regarded as lacking any reasonable basis . In the light of the applicant \u2019s persistent refusal to co - operate with the medical services , the entire responsibility for his health was his .","The court further took into consideration the fact that , when released in DATE , the applicant had failed to report to a hospital for the recommended operation and had been drinking heavily , as shown by the fact that after he had been re - arrested , he had manifested symptoms of deprivation of alcohol , typical for alcohol addicts . Afterwards he had CARDINAL times obtained temporary releases , on each occasion in order for him to follow the treatment of his orthopaedic ailment , and on each occasion he had failed to do so .","On DATE the applicant refused to undergo a medical examination at ORG of GPE prison hospital .","By a letter of DATE ORG replied to the applicant \u2019s complaint that his earlier complaint had not been adequately investigated by ORG , and stated that his allegations were entirely unfounded .","On DATE the ORG refused to release the applicant , having regard to a medical certificate , stating that the treatment of the applicant \u2019s condition could be provided by the prison medical services .","On DATE the ORG , having considered a medical certificate of DATE , refused to release the applicant and held that he could obtain the necessary medical treatment at the hospital of GPE prison .","By a letter of CARDINAL DATE the Pozna\u0144 ORG replied to a complaint by the applicant about the allegedly inadequate medical care extended to him . It stated that the applicant , following the DATE accident , had pains in his left foot and right leg after long walks . He also had painful spots and a so - called false joint in his left foot . An operation , which would alleviate his problems , could be carried on in the prison hospital , but the applicant refused to give his consent . In the past the applicant had been twice granted temporary release , which was later revoked in view of the applicant \u2019s failure to follow the recommended treatment . In view of his refusal of consent for treatment , the applicant was receiving analgesics to soothe his pain . It was further stated that the applicant \u2019s allegations that a physician of the PERSON prison was deliberately issuing untruthful medical certificates was unsubstantiated , the more so as the head physician of the prison delivered medical certificates concerning the applicant \u2019s condition which were consistent with those impugned by the applicant .","On DATE the ORG refused to order the applicant \u2019s release in view of the fact that he could obtain the necessary treatment at the hospital of GPE prison .","On DATE the ORG refused to order the applicant \u2019s release for the same reason .","On DATE the ORG , taking into consideration the medical certificate of DATE , found no grounds on which to order the applicant \u2019s release ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22882","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2002,"docname":"KESLASSY v. FRANCE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by PERSON V. ORG , a member of the ORG d\u2019\u00c9tat and ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","At the material time the applicant controlled CARDINAL private limited companies ( soci\u00e9t\u00e9 \u00e0 responsabilit\u00e9 limit\u00e9e \u2013 SARL ) , either through direct or indirect majority shareholdings , or through de iure managers appointed from members of his family or close contacts , or through the control of the LOC from which the companies were operating .","By an order of DATE a judge delegated by the President of ORG authorised tax inspectors from ORG , ORG and ORG , assisted by tax controllers from those departments , to search and seize documents on CARDINAL sets of business and residential LOC used by the applicant , his wife and the managers of the various companies concerned . Among the premises to be searched was the applicant \u2019s home .","The order also specified the senior police officers ( officiers de police judiciare ) with territorial jurisdiction to assist with the authorised operations and to ensure compliance with the rights of the defence .","The order was issued pursuant to LAW following an application by ORG . It stated that the aim of the searches was to seek evidence that the CARDINAL private limited companies controlled by the applicant had failed to \u201c to calculate and pay income tax in the industrial and trading profits category , and\/or corporation tax and value added tax ( VAT ) , by engaging in purchases and sales for which no invoices had been issued and\/or by issuing invoices or documents that did not correspond to genuine transactions and\/or by knowingly omitting to make or to cause to be made accounting entries or by knowingly causing to be made inaccurate or false entries in the accounting records that are required to be kept by LAW ... \u201d .","Among the evidence that was cited by the judge in the order as giving rise to a presumption of fraud was a typewritten letter dated DATE that had been sent to ORG in GPE and bore a hand - written signature and a note stating that it was from B. , the manageress of C. company . In the letter PERSON said that she was unable to control the conduct of her brother , the applicant , who held PERCENT of the shares in the company , and that she had no access to the accounts . She also said that the company \u2019s activity generated very substantial cash revenues and that the applicant was in the habit of siphoning off large sums of money from the company with which to purchase paintings .","The judge also noted that on DATE officials from ORG had given a statement in which they said that on DATE they had received a visit from a person who wished to remain anonymous who had affirmed that the applicant creamed off part of the income of the various companies in which he held a controlling stake of the share capital by appropriating to himself cash and cheques on which the name of the payee had been left blank . The informant had also stated that the money was used to enable the applicant to buy works of art and thus to build up a collection with a view to personal gain . Finally , the informant had added that the applicant held a customer account at ORG in GPE and gave his contacts business cards on which he presented himself as a seller of oriental paintings .","The judge also referred to previous proceedings that had been issued on a complaint by the authorities for tax fraud following an audit of the accounts of CARDINAL of the companies concerned . ORG had at the time held that the applicant was a de facto manager of the company concerned and found that it had failed to keep any accounts . Furthermore , in a judgment of CARDINAL DATE ORG had found that the applicant and his wife had fraudulently failed to calculate and pay any income tax for the DATE tax year . Lastly , in a judgment of CARDINAL DATE ORG had found that the applicant was the de facto manager of another private limited company and had convicted him of working illegally .","In his warrant of DATE the judge noted lastly :","\u201c [ The applicant ] does not disclose any income ...","The telephone number on the business card mentioned by the informant was allocated to [ C. company ] from DATE ...","That telephone number appeared in an advertisement that was placed with the CARDINAL DATE edition of ORG ...","The advertisement was for the purchase at premium prices of furniture , bronze sculptures , objects and oriental paintings and stated that commission would be paid to any intermediaries ...","The inference from the advertisement is that substantial funds are available .","[ The applicant ] arranged for a bank account to be opened ... by referring to a company registration number [ num\u00e9ro de SIRENE \u2013 an acronym for a computer system for the registration of undertakings and places of business , which enables all undertakings to be assigned a registration number ] ... [ which ] does not appear on the list kept by ORG ...","He is also able to use the ... premises , receives post there and lives there with his partner , by whom he has a child ...","Thus , the investigations made by the department have enabled the information obtained to be confirmed in so far as it concerns [ the applicant \u2019s ] activities in the aforementioned companies .","The results of the investigation carried out largely match the information provided by the de iure manageress of C. company and the statements made by the person who attended the department \u2019s offices on DATE ...","Presumptions exist that the companies which [ the applicant ] controls ... reduced their business receipts by omitting to enter all its dealings in the accounts and have thus avoided calculating or paying income tax on industrial and business profits and\/or corporation tax and value added tax ( ORG ) , by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly causing inaccurate or false entries to be made in the accounting records that are required to be kept by LAW ...","Thus the application is founded and it may be possible to obtain proof of the presumed fraudulent acts by making a search without prior warning . \u201d","The applicant , his wife and sons , the managers of the companies and the companies themselves appealed to ORG against the order ( that being the sole remedy available to them ) . In particular , they argued that the letter written by PERSON was inadmissible in evidence and contested its origin ( as only the signature was written by hand ) . They alleged that it could not constitute a witness statement within the meaning of LAW , as it did not satisfy the formal requirements set out in that provision . They also contested the evidential value of the anonymous statement that had been referred to as , in their submission , the judge , who was only entitled to rely on previous offences or convictions for tax fraud as additional circumstantial evidence , had not identified and analysed any other information that corroborated it . They noted too that the judge had , improperly in their submission , omitted to specify the accounting years to which the presumptions of tax fraud applied . They said in conclusion that that evidence was insufficient to raise a presumption of tax fraud justifying a search of residential property and that the judge had failed to give sufficient reasons for his decision in view of his obligations under LAW B of LAW .","On DATE the Commercial , Financial and Economic Division of ORG dismissed the appeal in a judgment in which it gave the following reasons :","\u201c Firstly , the appellants sought in the first and fifth limbs of the ground of appeal to contest the value of the evidence relied on by the judge as proof that the application was well - founded . Their arguments do not constitute valid grounds for invalidating the order in which , by assessing the evidence that had been adduced by the authorities , the judge sought to establish whether presumptions existed that there had been unlawful conduct that warranted a search being made of all premises , including private premises , for proof thereof and the seizure of any relevant documents .","Secondly , reference is made in the order to the origin of the letter dated DATE , which was produced as Exhibit II - a . A failure to comply with the formal requirements of LAW governing the production of statements in evidence in civil proceedings does not render such statements inadmissible in evidence . It is for the trial court to decide in its unfettered discretion whether a witness statement that does not comply with the formal requirements affords guarantees sufficient to satisfy it . This ground of appeal , the remainder of which the appellants devote to contesting the content of that piece of evidence , fails .","Thirdly , the anonymous statement received on DATE is corroborated by the letter of CARDINAL DATE , Exhibit II - a , which was described and analysed in the warrant .","LAW B of LAW does not render a warrant invalid if the judge fails to specify the accounting DATE concerned by the presumed fraud .","It follows from the above that none of the limbs of the ground of appeal are founded . \u201d","At the material time , the relevant provisions of LAW B of LAW ( as worded prior to the enactment of LAW . DATE of DATE ) provided :","\u201c I. If the judicial authority , on an application by the tax authority , considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices , by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make or to cause to be made accounting entries or by knowingly making or causing to be made inaccurate or false entries in the accounting records that are required to be kept by LAW , it may , in accordance with the conditions set out in LAW , authorise tax officials of at least inspector rank and holding authority from ORG to that end to seek proof of such acts by carrying out searches of all LOC , including private LOC , where evidence and documents relating thereto may be kept and to seize such evidence and documents .","II . All searches must be authorised by an order of the president of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located or by a judge delegated by him or her . The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well - founded . The application must contain all the information in the possession of the authority that may serve to justify a search . The order shall include :","( i ) where appropriate , a statement that the president of the tribunal de grande instance has delegated the requisite power ;","( ii ) the address of the premises to be searched ;","( iii ) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search .","The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought . If during the course of the search the accredited officials discover the existence of a safe - deposit box in a financial institution in the name of the person occupying the LOC searched in which items of evidence and documents relating to the acts referred to in I are likely to be found , they may , with the permission DATE which may be given in any form \u2013 of the judge who made the order , immediately search the safe - deposit box . A reference to such permission shall be entered in the record referred to in GPE . The search and seizure shall be carried out under the authority and supervision of the judge who authorised them . To that end , he or she shall give all instructions to the officials engaged in the operations . He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress . The judge may , if he or she considers it appropriate , attend the LOC while the operations are under way . He or she may at any time decide to suspend or halt the search . The occupier of the LOC or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it , for which he or she shall either sign a receipt or initial the record referred to in LOC . In the absence of the occupier of the LOC or his or her representative , the order shall be served by registered letter with an acknowledgement of receipt form after the search has been performed . Service shall be deemed to have been effected at the date of receipt entered on the form . If the order is not received , it shall be served personally in accordance with the provisions of Articles CARDINAL et seq . of LAW . The time - limit and procedure for appealing shall be set out in the documents accompanying postal or personal service . The only remedy against the order referred to in the first sub - paragraph shall be an appeal on points of law in accordance with the rules set out in LAW . Such appeals shall have no suspensive effect . For the purposes of an appeal on points of law , time shall start to run from the date of postal or personal service of the order .","III . Searches , which may not be started before TIME or after TIME , shall be conducted in the presence of the occupier of the LOC or of his or her representative . If that is not possible , the senior police officer shall appoint CARDINAL witnesses or shall not be from his or her department or the tax authority . The tax - authority officials referred to in I may be assisted by other tax - authority officials who have been accredited in the same conditions as the inspectors . The accredited tax officials , the occupier of the LOC or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure . The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third sub - paragraph of LAW . LAW shall be applicable .","IV . A record stating how the operation was organised and how it proceeded and recording any findings shall be compiled forthwith by the tax - authority officials . An inventory of the evidence and documents seized shall be appended to it . The record and the inventory shall be signed by the tax - authority officials , a senior police officer and the persons mentioned in the first sub - paragraph of III . Any refusal to sign them shall be noted in the record . Should it prove impractical to take an inventory on site , the evidence and documents seized shall be placed under seal . The occupier of the LOC or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer . The inventory shall be taken at that time .","PERSON The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled . A copy of those documents shall be provided to the occupier of the LOC or his or her representative ... \u201d","Article CARDINAL of LAW provides :","\u201c A witness statement shall contain an account of the facts which the maker has witnessed or has personally observed . It shall state the surname , first names , date and place of birth , home address and occupation of its maker and , if relevant , any relationship by birth or by marriage to the parties , and whether the maker is in the service or employment of or has a community of interest with any of the parties . It shall also contain a statement that it has been made with a view to its being used in evidence and that its maker is aware that false testimony will render him or her liable to prosecution . The statement shall be written , dated and signed by its maker in his or her own hand . The maker of the statement shall append to it an original or photocopy of any official document establishing his or her identity and containing his or her signature . \u201d","The trial court may , however , declare witness statements that do not comply with these requirements admissible in evidence and in such cases it will be for the trial court to \u201c decide in its unfettered discretion whether a witness statement that does not comply with the requirements of Article CARDINAL affords guarantees sufficient to satisfy it \u201d ( Court of Cassation , ORG , DATE , Civil Bulletin I , no . CARDINAL ; ORG , DATE , Civil PERSON , no . CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83008","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2007,"docname":"CASE OF KALOVITS v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"","text":["The applicant was born in DATE and lives in B\u00e1tonyterenye .","NORP In DATE criminal proceedings were instituted against him .","On DATE ORG preferred a bill of indictment in the case , which concerned CARDINAL other individuals . The applicant was charged with fraud and CARDINAL counts of violating foreign exchange regulations .","DATE and DATE , ORG held hearings DATE . It heard evidence from several experts and CARDINAL witnesses . On the last - mentioned date , it acquitted the applicant .","On appeal by the prosecution , on DATE ORG upheld the applicant 's acquittal ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23736","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2004,"docname":"VORSINA and VOGRALIK v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicants , PERSON Vorsina and PERSON , are NORP nationals , who were born in DATE and DATE and live in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants are great - granddaughters of Mr PERSON , a prominent factory owner , CARDINAL of the first brewers in LOC . He founded a brewery in ORG in DATE .","The only surviving portrait of the grandfather was kept in the PERSON family archives . In DATE the applicants passed a copy of the portrait to ORG of local lore for exhibiting . The museum , in its turn , passed it to OAO \u201c Barnaulskiy Pivovarennyy Zavod \u201d , a joint - stock company producing beer .","The brewery produced several kinds of beer under the common brand \u201c DATE derivative from the grandfather \u2019s name . His portrait , obtained from the museum , was reproduced on beer bottles . The portrait was also extensively used on external advertising boards . CARDINAL of the boards depicted a beer bottle ( with the grandfather \u2019s portrait on it ) playing saxophone .","On an unspecified date the applicants brought an action against the brewery in ORG . They asked to remove the grandfather \u2019s name and portrait from the beer advertisements because it interfered with their right to confidentiality of family life . The applicants claimed that they felt uneasy when strangers asked them about their relation to the person depicted on the beer bottles . They also claimed that they anguished at the sight of bottles \u2014 with their name and the portrait of a relative on them \u2014 littered about .","On DATE , ORG dismissed the action having found as follows :","\u201c ... The label of the \u2018 Vorsinskoye\u2019 beer has not yet been registered as a trademark . The [ brewery ] has filed a [ relevant ] application ...","The court considers that pursuant to section CARDINAL \u00a7 CARDINAL of the Law on Trademarks , Service PERSON and ORG , great - granddaughters , and [ the applicants ] in particular , can not be recognised as heirs .","In accordance with LAW , CARDINAL forms of succession exist : intestate and testamentary . [ The applicants ] did not claim that a last will and testament had existed .","In accordance with LAW , the testator \u2019s grandchildren and great - grandchildren become intestate heirs if by the moment of the commencement of succession no parent , who would have otherwise inherited , is alive .","PERSON died in DATE , at that time his son PERSON ( DATE ) ... was alive . Therefore , PERSON great - granddaughters can not be considered as his intestate heirs .","In these circumstances , the court considers that section CARDINAL \u00a7 CARDINAL of the Law on Trademarks can not be applied to the present case even by analogy .","In their statement of action [ the applicants ] claimed that they had made a copy of the portrait of the great - grandfather and had given it to ORG of local lore .","Pursuant to section CARDINAL of ORG , items and collections included in the museum stock of GPE and held in NORP museums shall be open for public access .","Pursuant to section CARDINAL \u00a7 CARDINAL of the same PERSON , the production of graphic and printed merchandise , souvenirs and other replicated material and consumer goods with the use of images of museum items and collections , museum buildings and objects located on museums\u2019 LOC , as well as with the use of museums\u2019 titles and insignia is to be carried out with the consent of the museums\u2019 administration .","When applying for registration of the trademark [ the brewery ] did receive the permission of the museum for the reproduction of Mr LOC \u2019s portrait in the label of the \u2018 Vorsinskoye\u2019 beer .","The information about the LOC family of merchants , their photographs , were published in local lore publications ... and thus made publicly known . The same can be said about the portrait which was exhibited in the museum .","The explanatory dictionary by PERSON and PERSON understands \u2018 ORG as ( CARDINAL ) something undiscovered , not yet known ; ( CARDINAL ) something concealed from others , not known to many .","The court takes the view that the defendant did not breach [ the applicants\u2019 ] right to the secrecy of their family life . The court draws a similar conclusion in respect of the alleged infringement of the inviolability of [ the applicants\u2019 ] private life . According to the PERSON dictionary , \u2018 PERSON means complete , immune from any encroachment . The court considers that the use of PERSON name and portrait in no way encroaches on [ the applicants\u2019 ] private life since this information is known to the general public ... \u201d","On an unspecified date , the applicants filed an appeal against the judgment . They argued that the lack of registration of the trademark should not have been considered as an obstacle to the application of the Trademark Law . According to the applicants , the Trademark Law provided a regulation of similar situations , and therefore it should have been applied by analogy . The applicants also claimed that the Trademark Law did not specify the notion of \u201c heir \u201d separate from that described in LAW , and that the moment of the commencement of succession had been of little importance since the right infringed \u2014 the feeling of kinship \u2014 was of a non - pecuniary nature . The applicants maintained also that the fact that they had passed a copy of the portrait to the museum in no way implied their consent to see it on beer bottles .","On DATE , ORG disallowed the appeal on the following grounds :","\u201c ... Articles CARDINAL - CARDINAL of the Civil Code permit the conclusion that succession usually extends to the right of property and other property interests which make part of contract , copyright and inventor obligations .","At the same time , heirs may also inherit certain non - pecuniary rights ... if the law so stipulates .","However , the [ trial ] court was correct in assuming that [ the applicants ] could not be considered as heirs .","The [ appeal court ] can neither accept [ the applicants\u2019 ] argument that their family secret , guaranteed and protected by LAW , had been disrespected . The [ trial ] court assessed these arguments and the [ appeal court ] upholds this view .","PERSON is a prominent figure , the founder of beer production in LOC , and this well - known fact can not be regarded as a family secret . [ The applicants ] and [ the brewery ] have a dispute in connection with the right of reproduction of the portrait of PERSON in [ the brewery \u2019s ] trademark . The current legislation does not impose such restrictions .","The reproduction of the great - grandfather \u2019s portrait in the trademark of OAO \u201c Barnaulskiy Pivovarennyy Zavod \u201d , which was founded by ORG , does not infringe or prejudice [ the applicants\u2019 ] personal non - pecuniary interests . The information about PERSON is not only the family \u2019s asset , but is also part of the public domain as information about a famous businessman of GPE ...","The fact that the great - grandfather \u2019s portrait existed in CARDINAL single copy in [ the applicants\u2019 ] possession does not mean that their family secret was breached .","[ The applicants ] by their own initiative passed a copy of the portrait to the ORG of local lore , and [ the brewery ] obtained , in accordance with [ section CARDINAL of the Law on Museums ] , a permission of the museum to use the portrait ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60610","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2002,"docname":"CASE OF P., C. AND S. v. THE UNITED KINGDOM","importance":1,"conclusion":"Violation of Art. 6-1;Violation of Art. 8 in respect of removal of child at birth;Violation of Art. 8 in respect of procedures concerning care and freeing for adoption orders","judges":"Gaukur J\u00f6rundsson;Jean-Paul Costa;Nicolas Bratza","text":["P. , born in DATE , is a citizen of GPE ; C. , the husband of P. , was born in DATE and is a GPE citizen ; PERSON , their daughter was born in DATE and is GPE and NORP citizen . They are all resident in GPE .","In DATE , then living in GPE , gave birth to a son A. shortly before her eighteenth birthday . In DATE P. married her first husband and had a second son PERSON in DATE . In DATE she and her husband separated . Both parents contested custody of B.","DATE and DATE B. was referred to his general practitioner for some CARDINAL complaints .","NORP In DATE B. was taken for examination to hospital on numerous occasions for complaints of diarrhoea and fever , and on each occasion he was found to be in a normal condition . When on DATE B. was admitted to hospital , a laboratory stools test indicated the presence of phenolphthalein ( a laxative ) . The doctor was satisfied that P. had been responsible for laxative poisoning and reported the matter .","On DATE the NORP authorities took B. into protective custody , alleging that PERSON was harming her son , then aged CARDINAL , by administering laxatives to him inappropriately . He was suspected of being a victim of induced - illness abuse , the syndrome known variously as PERSON syndrome by proxy ( \u201c MSBP \u201d ) , fabricated or induced illness , illness - induction syndrome or paediatric falsified condition . PERSON is a label sometimes used to describe a form of psychiatric illness , mainly found in women , who seek attention by inducing illness in their children or inventing accounts of illness in their children , and by repeatedly presenting their children to the medical authorities for investigation and treatment .","On DATE a NORP court ordered that B. live with his father . Following this placement , PERSON did not suffer from any acute or abnormal diarrhoea . At a hearing in DATE , the court approved supervised contact between PERSON and her son PERSON once a month for TIME for the following DATE . PERSON was informed that , if she wished increased contact , it could be envisaged in a supervised , therapeutic context .","P. was charged with cruelty towards PERSON and endangering PERSON 's health , a felony offence under section CARDINALA(a ) of GPE . A report prepared by PERSON stated that PERSON suffered from PERSON and that she had victimised PERSON over DATE , causing him severe diarrhoea , possibly vomiting , weight loss and multiple non - trivial procedures and hospitalisations . On DATE , after a DATE trial before a jury in ORG , she was convicted of a misdemeanour under section CARDINALA(b ) , a lesser offence , and acquitted of the felony . On DATE she was sentenced to DATE probation and DATE in custody , subsequently suspended . She was also ordered to enter and complete a \u201c psychological and psychiatric treatment programme \u201d .","During the divorce proceedings , PERSON was required to have therapy as a condition for getting custody of PERSON and saw a therapist from DATE until DATE . From DATE she was prescribed an antidepressant by a psychiatrist whom she saw regularly to review the medication . She also consulted with psychiatrists during the criminal trial . From DATE , she saw a psychologist twice a month for therapy .","On DATE the NORP family court reduced contact to CARDINAL supervised occasion per month . It was ordered that any additional contact visits would have to occur in a therapeutic setting with a doctor present . Her appeal against this was dismissed .","During PERSON met her present husband , C. , a qualified social worker who was studying for a doctorate in philosophy and researching into cases of women wrongly accused of ORG .","In DATE , in breach of the probation order , PERSON came to visit C. in GPE . P. and C. were married in DATE in GPE . P. discovered shortly afterwards that she was pregnant .","Rochdale ORG ( \u201c the local authority \u201d ) became aware of the pregnancy after P. had taken steps with a view to obtaining an annulment of her previous marriage and her ex - husband had informed the district attorney in GPE who in turn made contact with the authorities in GPE , giving information about P. 's conviction for harming her son PERSON The local authority was informed of the pregnancy by PERSON 's doctor and commenced an investigation .","Social workers were in contact with P. and C. from DATE . A letter was sent to arrange a meeting . Prior to the proposed meeting , there were several exchanges on the telephone . C. considered that the social services should provide more detailed information before a meeting took place and made a list of requirements regarding access to files and copies of documents . Tension arose when the social worker requested that PERSON give her date of birth in order to confirm that she was the person concerned in the information from GPE . P. initially refused to give this information . The proposed meeting was cancelled .","On DATE the applicants ' solicitors wrote to the social services requesting that they provide information to both themselves and P. directly , concerning , inter alia , the reason for the proposed meeting , details of any information in their possession , forms for applying for access to social - work files , specific details of child protection concerns in the case and a list of every person with whom PERSON had been discussed .","On DATE a meeting took place attended by P. and C. , social workers and the police .","There was further correspondence between the local authority and the applicants ' solicitors concerning the appointment of an expert to assess the risk to the unborn child , pursuant to section CARDINAL of LAW DATE ( \u201c the section CARDINAL assessment \u201d ) . By letter dated CARDINAL DATE , the local authority 's solicitors noted that the applicants were not happy with the proposed expert , PERSON , and requested further details of any objections . They pointed out that the person suggested by the applicants was not an expert in PERSON and requested details of the other proposed experts .","On DATE the local authority made contact with Dr Eminson , a consultant child and adolescent psychiatrist who had been proposed by the applicants , with a view to her undertaking an assessment .","By letter dated CARDINAL DATE , the local authority 's solicitor referred to a letter of CARDINAL DATE by the applicants ' solicitors . It was pointed out that , as there were no care proceedings in train , there was no obligation on the local authority to agree a letter of instruction for the expert with the applicants . At that stage , all that was required was P. 's agreement to see the expert . The view was expressed that it was for the local authority to decide what documents to submit to the expert , although they would have no objection to the applicants ' providing extra documentation . Although they wished to work in cooperation with P. , they could not allow her to dictate the course and conduct of the section CARDINAL assessment .","On DATE a case conference was held by the local authority attended , inter alia , by social workers , ORG 's general practitioner , a health visitor , a midwife , P. and C. , P. 's solicitor and the paternal grandmother of the unborn child . TIME of the meeting state that the reason for the conference was that P. had a conviction which led to concern that her child might be at risk of induced illness \/ injury after it was born . It was noted that P. disputed details of the background to her conviction , claiming , inter alia , that there was evidence of her son PERSON having had diarrhoea as she alleged . C. was noted as accepting that the existence of a conviction could give rise for concern but not that it automatically meant his wife suffered from PERSON , alleging that there was no direct evidence of any harm having been inflicted by her . Due to the concern that P. suffered from PERSON , it was decided to place the child on ORG at birth and to undertake a full risk assessment .","On DATE Dr Eminson agreed to act as expert in the assessment to take place .","On DATE the applicants ' solicitors wrote to the local authority , pointing out that their request for an agreed letter of instruction and the list of documents given to the expert was based on good practice and procedure and that , although there were no care proceedings , they had assumed the same principles would be applied . They stated that P. could not be expected to go into a meeting blind to the specific points the doctor had been asked to address and that they needed a list of documents in order to assess whether they wished to provide the expert with anything further .","By reply of the same date , the local authority 's solicitor stated that a section CARDINAL assessment procedure was at the entire discretion of the local authority and that different principles applied than in care proceedings . However , they were prepared to disclose the list of documents sent to Dr Eminson and set out the questions which they would ask her to address .","On DATE , in discussions between the applicants ' solicitors and the local authority , it was indicated that the applicants were no longer happy with PERSON .","On DATE the local authority held a case conference to review the situation . It was found that the parents had not cooperated with the local authority assessment , or that their cooperation was superficial . A combination of excuses and evasiveness had made it impossible to hold CARDINAL meeting . There still appeared to be a complete denial about events in GPE . The local authority 's solicitor had spoken with the district attorney involved in the case in GPE and reported a number of allegations , including the concern that P. suffered from PERSON as shown by her own medical history , that C. had impersonated a therapist in trying to convince P. 's probation officer that she was complying with an order and that PERSON had harassed PERSON and the district attorney by telephone calls . It was noted that PERSON and C. were unwilling to see the expert proposed by the local authority . It was decided to take out an emergency protection order at the child 's birth as there was","\u201c reason to believe that the baby would be at risk of significant harm if left in the care of his \/ her parents ; there has been no genuine cooperation from the parents and it would be impossible for ORG ... to manage the risk without legal jurisdiction which includes removal in the first instance . An application for interim care proceedings would require notice and [ there were ] reasons to believe that the parents would evade the authorities \u201d .","The address of the foster placement was to be kept secret to avoid harassment or an attempt to remove the child . The parents were to be told about the intention to take legal action in general terms .","On DATE the applicants ' solicitors confirmed that P. and C. would see PERSON . They attended an appointment on DATE .","On DATE PERSON wrote to the local authority , expressing grave concern and recommending the removal of the baby at birth and strict supervision of contact as there was a high level of risk of harm from P.","On DATE the local authority was approached by C. 's mother , asking whether the child could be placed with her . The local authority decided to raise the matter with PERSON as part of her assessment .","Notes dated DATE of a discussion between the assistant director ( social services ) and PERSON included the doctor 's view that the basis upon which to work with the parents was extremely limited given the absence of acceptance \/ agreement about concerns over the unborn baby or the past history in GPE . She had found that the parents were not prepared to discuss the real issues with her , that C. was mainly interested in the battle with the authorities and that the couple showed little concern for or awareness of the key issue , that of the safety of the unborn baby . Although a definitive conclusion was difficult , the risk factors were not in her view sufficiently worrying to justify not telling the parents about the proposed application for an emergency protection order at birth . While the possibility of further assessment with the couple and newborn baby at a residential facility was not ruled out , this was not possible at that time due to the limited degree of cooperation and commitment of the parents .","By DATE it was becoming likely that , due to the lie of the baby , P. would have to have a Caesarean section instead of the planned delivery at home . The midwife reported that the consultant PERSON wanted PERSON to be admitted on DATE for an elective Caesarean , but that P. had refused and gone home . The midwife was noted in the social - work records as having become very angry with P. and C. for resisting medical advice and , later , for having claimed that they had been lucky to get a live baby .","On DATE , at TIME , PERSON was born by Caesarean surgery . C. had brought PERSON to the hospital when her waters broke at home .","The local authority applied for an emergency protection order at TIME They contacted the hospital concerning the possibility of staff supervising the baby at the hospital . After discussions , it was confirmed to the local authority by the hospital management that , even with security measures , they could not guarantee the baby 's safety . The ORG stated that the hospital was concerned by the difficult behaviour of a friend of PERSON 's who demanded to be present during the operation and had to be threatened with removal by security guards , and the aggressive attitude of P. 's friends and family towards staff after the birth . The applicants have stated that there is no evidence for these allegations in the records . Notes in the hospital records indicated that at TIME Dr Maresh had stated that he would prefer the visit of the social workers to be deferred , as the news might upset PERSON and cause a rise in blood pressure .","At TIME it was decided to serve the emergency protection order on the applicants with a view to removing S. to foster care . According to the Government , C. 's mother refused to allow S. to be removed and C. 's father threatened to follow the social workers and the baby . Safe departure from the hospital was only achieved with the assistance of the hospital staff . The applicants stated that there was no evidence for this in the records , although they accepted that the family were very upset when PERSON was removed , and C. 's mother pleaded with the social workers not to let PERSON go to strangers .","A contact visit was arranged on CARDINAL DATE , attended by C. and his parents . While social services had considered taking S. back to the hospital for visits while PERSON was an inpatient , it was felt that it was not in the interests of S. as a newborn baby to be transported on a trip of CARDINAL to QUANTITY .","P. remained in the delivery unit due to concerns about her blood pressure . It was noted by her consultant that she was very clearly distraught about events . She was prescribed drugs to suppress lactation and anti - hypertensive medication . She was discharged on DATE .","The local authority meanwhile applied to the court for a care order under LAW DATE .","P. and C. were allowed supervised contact with PERSON , initially CARDINAL times a week . The first visit occurred on DATE . P. and C. applied for more access and were supported by the guardian ad litem appointed by the court to represent S. Contact increased to CARDINAL times a week from DATE . S. also had contact with her maternal and paternal grandparents .","P. and C. developed an excellent relationship with their baby daughter PERSON The notes made by the supervising officials were positive and complimentary . The paternal grandparents were also observed to have a caring and attentive relationship with her .","On CARDINAL DATE the local authority suspended the assessment of the paternal grandparents which had commenced after their approach to the local authority on DATE . This was to await the directions of the court , as advised by their counsel . The grandparents were advised of this on DATE .","On DATE the case was transferred from the county court to ORG on grounds of complexity .","Dr Eminson issued her report on DATE , stating that in order to assess the risk to S. it would be necessary to obtain , inter alia , a psychiatric assessment of P. and her capacity to change and a comprehensive social work assessment of each family member , including the grandparents , as regards their capacity to care for and protect S.","DATE . On DATE the timetable for the proceedings was set by a circuit judge and the hearing date fixed for DATE . It was directed that the assessment of the grandparents should be undertaken by an expert but that the local authority should provide the factual background .","In a report dated CARDINAL September CARDINAL , a social worker recorded the factual investigation into the paternal grandparents .","In his report dated DATE for the guardian ad litem appointed by the court to represent S. , PERSON , a consultant paediatrician , found , inter alia , a clear and chronic pattern including unexplained symptoms suggesting that PERSON suffered from a severe illness ; a definitive episode of poisoning ; non - appearance of symptoms when the child was supervised by others and resolution of the health problems in the child after separation from the mother ; extensive inaccuracies and inconsistencies by PERSON when repeating her history to different doctors ; and exceptionally frequent medical attendance by mother and children . His opinion was that PERSON , and to lesser extent GPE , had been victims of child abuse on the fabricated illness spectrum . The tendency to fabricate appeared to be ongoing ( references were made to P. 's conduct during her pregnancy with S. : she had , for example , complained of ulcer symptoms but no ulcer was found , and she had referred to a stomach tumour which was presumably a besore [ A condition caused by the swallowing of hair and the biting of hair and nails ] removed in DATE ) . His view , strongly expressed , was that the risks to S. of rehabilitation with P. outweighed the advantages .","On DATE and DATE , the local authority informed P. and C. of their intention to apply for a freeing for adoption order under LAW .","On DATE Dr Maresh , ORG 's obstetrics consultant , gave a statement indicating that it was clear to him that PERSON was aware that there was a strong possibility that her baby would be taken away from her at birth and that this made it difficult for her to stay at the hospital . He noted that during her pregnancy the number of assessments that PERSON was undergoing had sometimes interfered with the making of ante - natal appointments .","On DATE PERSON issued his psychiatric report .","( i ) It was noted that , during his meetings with P. , she had been superficially cooperative . She had considered that the test which found a laxative in PERSON 's stools could have been a false positive . She accepted that PERSON had been hospitalised too often and that she had allowed emotional harm to come to him . Her explanation was that she had been a victim of the divorce process and suffered considerable financial stress . The only statement by P. in which she appeared to take responsibility for exaggerating PERSON 's illness was when she said that she had exaggerated the number of loose stools that he had had . There was a sense of evasiveness and minimisation , even a degree of trivialisation of what was discussed . It was difficult to tell whether some events referred to by P. were a constructed reality or had really happened .","( ii ) As regards C. , his research attempted to show that health practitioners sometimes developed a perspective where they created the notion that the parent was inducing illness in a child , thus demonstrating the misuse and fallibility of medical authority . C. had stated that there was nothing to suggest that P. would harm S. He was prepared to look after S. alone if necessary . Together , P. and C. had stated that they would undertake any therapeutic work with a view to obtaining care of S. without , however , acknowledging that there was a problem as far as P. was concerned .","( iii ) As regards the paternal grandparents , they tended to agree with the parents ' analysis of the situation and found it hard to face up to the fact that P. 's actions had given rise to major concerns about her potential to harm . There were positive factors in their favour ( such as their commitment and desire to protect S. ) . However , the main problem if S. were placed with them would be their age when PERSON reached her adolescent phase of development .","( iv ) The report found that P. had a personality disorder , including a factitious disorder , as disclosed by her gross exaggeration of having had ovarian cancer and statements about miscarriages as well as the fabrication and exaggeration of B. 's symptoms . While P. had indicated a willingness to accept therapeutic work , which would have to be prolonged and required considerable motivation to change , she had not accepted how extensive such change needed to be . As regarded a possible referral to ORG , it was noted that this would require considerable commitment on the part of both parents . Although the couple had indicated a willingness to enter such a therapeutic setting , PERSON 's level of motivation was limited . It might , however , be advantageous for P. to be admitted to a special clinic for a further detailed assessment of whether a referral to ORG would be appropriate .","( v ) The report concluded that C. was not himself a direct risk to S. but was so indirectly . He embraced his wife 's views and had a limited understanding of the local authority 's concerns . Similarly , the grandparents would be protective of S. if she were placed in their care but , as they would be in DATE when PERSON was DATE , they would have increasing difficulties in meeting her growing emotional needs . It was therefore difficult to consider them as possible long- or short - term carers because PERSON needed to be in a secure long - term placement by her first birthday . As regards contact , the fact that the fabrication of symptoms was not life - threatening meant that contact would need less rigorous supervision than in the case of more life - threatening abuse .","On DATE the local authority made an application to free S. for adoption .","NORP The local authority care plan dated DATE stated that placement of S. with both parents would pose a serious risk to her . As the circumstances in which C. intended to offer to care for S. on his own were unclear , the concerns about her protection remained . Regarding the paternal grandparents , it was noted that they had not shared the concerns in respect of the risk to S. if she were placed with her parents , and that PERSON did not support placement with them , particularly because of their age . The local authority 's view was that the care plan for PERSON should be permanent , secured by adoption , and that she needed to be placed with an adoptive family as soon as possible .","At a hearing , which began on DATE and ended on DATE , the High Court heard the local authority 's application for a care order in respect of S. The local authority informed the judge that there were CARDINAL families available and wanting to adopt PERSON and C. were parties , as were PERSON paternal grandparents , while PERSON was represented by a professional guardian ad litem , solicitors and both senior and junior counsel .","On DATE C. applied for leave to withdraw from the proceedings , on the ground that he saw no prospect of success in obtaining custody of S. and that the stress of the proceedings was likely to lead to a breakdown in his health . On DATE the judge granted him leave to withdraw . C. 's parents also withdrew from the proceedings .","On DATE legal representatives ( leading counsel and solicitors ) withdrew from the case , informing the judge that her legal aid had been withdrawn . It was later stated by the judge that they had withdrawn because PERSON was asking them to conduct the case unreasonably . In fact , her legal aid had not withdrawn , as the judge made clear in his judgment . The legal - aid certificate could not be formally discharged until PERSON had been given the opportunity to show why that should not happen .","P. asked for an adjournment until DATE , which was granted . On that date PERSON asked for a further adjournment in order to apply for the reinstatement of her legal - aid certificate .","The judge refused the adjournment . As a result of this decision , PERSON conducted her own case , assisted by a \u201c PERSON friend \u201d , PERSON The applicant stated that she found conducting her own case immensely difficult . At CARDINAL stage , she told the judge that she simply could not continue because she was so distressed . That was after cross - examining her own husband PERSON , which she found very painful . However , the judge said that she should carry on . The solicitor for the guardian ad litem and a social worker visited P. that evening to persuade her to carry on .","In his judgment , the judge explained his refusal of an adjournment :","\u201c In the first place I was satisfied that the mother had a very clear grasp of the voluminous documentation , at least as good and if not better a grasp than the lawyers in the case . Secondly , it was clear to me from the documents that the mother , who is an intelligent woman , was fully able to put her case in a clear and coherent way , an assessment that has been amply borne out by the hearing itself .","Thirdly , I was confident that the Bar , in the form of leading and junior counsel for the local authority and the guardian ad litem , would not only treat the mother fairly but in the tradition of the Bar would assist her in the presentation of any points she wished to advance , in so far as it would be professionally proper for them to do so . Once again that assessment has been fully justified by the conduct of counsel during the hearing . As examples , the local authority both facilitated and paid for the attendance of Dr PERSON , consultant toxicologist , to attend as part of the mother 's case . Junior counsel for the local authority ... struggled manfully to ensure that the mother had a complete set of the ever growing documentation . There were other examples .","Fourthly , the outcome of the case seemed to me to hinge or be likely to hinge substantially on the mother 's cross - examination , an area of the case in which the ability of lawyers to protect her was limited .","Finally , and most importantly , I was concerned about the prejudice to [ S. ] of what would have had to have been a very lengthy adjournment . Section CARDINAL(CARDINAL ) of LAW expresses the general principle that delay in resolving a child 's future is prejudicial to that child 's welfare . In this particular case intensive preparation for the hearing had been going on effectively since [ S. 's ] birth in DATE and up until the outset of the hearing before me the mother had had the benefit of advice from her lawyers , latterly of course from leading counsel . An adjournment would have involved a very substantial delay in resolving [ S. 's ] future .","The hearing was estimated to last , and did indeed , last something in the order of DATE . A fresh legal team , assuming legal aid was restored , would have needed a substantial amount of time to master the voluminous documentation and to take instructions . DATE of court time simply can not be conjured out of thin air .","Furthermore the evidence of Dr ... Bentovim , the consultant child psychiatrist jointly instructed to advise me , amongst other things , on [ S. 's ] placement , was that a decision on her long - term future needed to be both made and if possible implemented before her first birthday .","The consequence of the events I have described was that the mother has been obliged to conduct her case in person with the assistance of a PERSON friend , PERSON . In their closing submissions Mr PERSON and Miss PERSON for the guardian ad litem paid tribute to the manner in which the mother had conducted her case . They described her as fighting bravely , resourcefully and skilfully for the return of her daughter . I would like to echo that tribute . I would also like to express my gratitude to the mother 's PERSON friend ... who was clearly a considerable support to the mother throughout the case .","If the mother had been represented by counsel her case would , I think , have been conducted differently , but I am entirely satisfied that the result would have been the same . As so often happens the mother was given a latitude which would not be given to a litigant who was legally represented . For example , I allowed her to call a witness , Professor PERSON , who had not provided a statement prior to the hearing . I was also prepared for her to call a consultant psychologist who had given evidence in the NORP proceedings , Dr [ P. ] , who in the event was unable to attend . I also allowed the mother to cross - examine witnesses twice ... I have throughout the hearing endeavoured to ensure that the mother was treated fairly . ....","I am the first to acknowledge that the courtroom is not a friendly environment and ... that those who are not used to it find it difficult . However much experience the mother may have had of the legal system in GPE , I accept ... that she is not a lawyer . Further , the hearing has had in [ S. 's ] interests to delve into matters which were highly distressing to the parents and which are normally intensely private and would have remained private .","It is my judgment that the mother 's case has been fully heard and that the hearing has been fair ... I reject any suggestion that had the mother been legally represented the result would have been different . \u201d","On DATE the judge made a care order . In reaching his decision , he did not consider himself bound by the NORP conviction and reached his own findings of fact on the available material , which included a substantial volume of documents from GPE and expert reports . He concluded beyond reasonable doubt that PERSON 's diarrhoea had been caused by laxative abuse on the part of P. on CARDINAL occasion and , on a balance of probabilities , that abuse was the most likely cause of PERSON 's diarrhoea on CARDINAL further occasions . He went on :","\u201c I am therefore in no doubt and so find that [ B. ] did suffer harm in the care of his mother . In my judgment that harm was not limited to his physical health . I accept the argument of the local authority that he also suffered serious psychological harm . ... \u201d","While the judge accepted that P. had not put S. at risk during her pregnancy and that the parents ' treatment of S. during contact sessions had been exemplary , he found that P. suffered from a personality disorder , and that such people were very difficult to treat and did not change easily . He considered that PERSON was in a state of deep denial about what had happened to her son PERSON and the potential risk that she posed to her daughter PERSON He referred to the expert evidence \u201c that to receive help P. would need to accept that she remains a potentially dangerous person to PERSON and \u201c that is impossible even to start where the mother is in denial to the extent that this mother plainly is \u201d . He noted that PERSON had found a small acknowledgment about her role in PERSON 's illness , but that PERSON had challenged the accuracy of his report on this point and embarked on a high - risk strategy of launching an outright attack on the NORP evidence .","\u201c At the end of a very careful and thorough cross - examination by the guardian ad litem , PERSON agreed ... that given the depth and longevity of the mother 's state of denial , and given that the father had embraced it fully , the time scale for any therapeutic work with the mother designed to bring her to a state of understanding of and ability to address the risk posed to PERSON was way outside the time scale during which PERSON could be kept waiting for a permanent placement . PERSON conclusion , reached I think with some regret , was that in the circumstances there could be no question of reunification of S. with her mother . \u201d","The judge found that C. was incapable of altering his emotional perception of P. or of accepting that she was responsible for harming her son PERSON , although with a different woman as a partner he would have been able to bring up and care for a child . The direction of the case could have been altered if PERSON had acknowledged that there was a serious risk to be guarded against . C. was dominated by the mother and unable to put PERSON 's interests and the need to protect her first . The judge concluded that PERSON 's moral or physical health would be endangered by leaving her with her parents .","On DATE the same ORG judge heard the application to free LOC for adoption . The transcript of his previous judgment was not yet available . The final order of CARDINAL DATE listed PERSON C. and S. as respondents . According to the applicants , PERSON was present throughout and was specifically asked in court if he consented to a freeing for adoption order being made , and C. indicated that he was not .","At the commencement of the hearing , P. informed the court that without legal representation she was significantly disadvantaged and was being deprived of a proper opportunity to advance her case . Both P. and C. had valid legal - aid certificates . The judge declined to defer the proceedings , finding that PERSON was capable of representing her interests and that she would have been put on notice by her lawyers at an earlier stage that the freeing for adoption application would follow the care order . Although he noted that there might appear to be \u201c an element of railroading \u201d , on balancing the parents ' interests against the need for PERSON to have her future decided at the earliest possible opportunity , he considered that PERSON 's interests prevailed . On the issue of the freeing for adoption application , the judge concluded that the parents were withholding their consent to adoption unreasonably as they should have accepted , in the light of the previous proceedings , that there was no realistic prospect of the rehabilitation of S. to their care . He therefore issued an order freeing PERSON for adoption . That permanently severed legal ties between PERSON and her parents . As regards contact , he stated :","\u201c I 'm assured by [ the local authority ] that there will be conventional letter - box contact . But it will in due course ( if an adoption order is made ) be essentially a matter for the adoptive parents as to precisely what contact [ S. ] has with her natural family . \u201d","DATE . The judge refused PERSON leave to appeal against the order . Her renewed application before ORG was refused after a hearing on DATE , where she and C. appeared in person . Although ORG noted that C. was not a party to the appeal , it referred to the fact that C. had addressed the court at some length on the issues . It noted that that the trial was of exceptional complexity , with enormous documentation , much expert evidence and lasting DATE . It found , however , that the judge had carefully and thoroughly weighed all the issues of fact and that he had been meticulous throughout in ensuring fairness . No error of law or any failure of procedural fairness had been demonstrated .","The last contact visit by P. and C. with PERSON was on DATE .","On DATE S. was placed for adoption with a family . On DATE the local authority informed P. and C. that S. had been placed with adopters .","S. was adopted by an order made on DATE . P. and C. were informed on DATE .","The adoption order made no provision for future direct contact between PERSON and her parents . Any such contact was now at the discretion of the adoptive parents . By letter dated DATE , the local authority informed P. and C. that they could have limited indirect contact with S. , namely , through DATE and birthday cards , and presents . By letter dated CARDINAL DATE , the local authority informed them that contact was reduced at the request of the adopters to a letter from the parents once DATE .","Section CARDINAL of LAW DATE provides :","\u201c ( CARDINAL ) Where a local authority","...","( b ) have reasonable cause to suspect that a child who lives , or is found , in their area is suffering , or is likely to suffer , significant harm ,","the authority shall make , or cause to be made , such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child 's welfare . \u201d","Whenever a court determines any matter in relation to the upbringing of a child , it must have regard to the provisions of LAW DATE , section CARDINAL , which requires that the court 's paramount consideration must be the welfare of the child . The court is empowered to make care orders or supervision orders where it is satisfied that","( a ) the child concerned is suffering , or is likely to suffer , significant harm ;","( b ) the harm , or likelihood of harm , is attributable to the care given to the child , or likely to be given to him \/ her if the order were not made ; and","( c ) that care is not what it would be reasonable to expect a parent to give to him \/ her ( section CARDINAL ) .","Where an application is made for a care order , the local authority which is to take over the care of a child must set out the plan by which it intends to meet the welfare needs of the child ( including details of contact ) \u2013 the \u201c care plan \u201d . Government guidance at the time emphasised :","\u201c Where a child is in the care of a local authority , LAW DATE places a duty on them to make all reasonable efforts to rehabilitate the child with his or her family whenever possible unless it is clear that the child can no longer live with his family or that the authority has sufficient evidence to suggest that further attempts at rehabilitation are unlikely to succeed . \u201d ( LAC(CARDINAL)CARDINAL DATE )","DATE . The courts ' approach was similar :","\u201c The principle has to be that the local authority works to support , and eventually to reunite , the family , unless the risks are so high that the child 's welfare requires alternative family care \u201d ( Lady Justice PERSON in Re C and B ( Children ) ( Care Order : Future Harm ) [ DATE ] CARDINAL Family Law Reports CARDINAL )","Adoption is the primary avenue in GPE by which permanent alternative care is provided for children who can not be brought up within their own family . An adoption order , which is effectively irrevocable , gives parental responsibility to the adopters and extinguishes the pre - existing parental responsibility .","By virtue of LAW , an adoption order may not be made unless the child is free for adoption , or both parents have consented or their consent had been dispensed with on specified grounds .","Before a local authority can apply for an application to free a child for adoption , the plan for adoption must be placed before an adoption panel . In the absence of parental consent , a local authority may apply for a freeing for adoption order where the child is in the care of the local authority . The test to be applied by the courts in determining whether or not to dispense with parental consent includes the ground that the parent is withholding agreement unreasonably ( section CARDINAL(CARDINAL)(b ) ) . A recent judicial approach to that test suggested that the judge should consider whether , having regard to the evidence and applying the current values of society , the advantages of adoption for the welfare of the child appeared sufficiently strong to justify overriding the views and interests of the objecting parent ( Re C ( A Minor ) ( Adoption : Parental Agreement : Contact ) [ DATE ] CARDINAL Family Law Reports CARDINAL ) ."],"violated_articles":["6","8"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102256","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF HADEP AND DEM\u0130R v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Fran\u00e7oise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["HADEP was a political party which had been established on CARDINAL DATE . At the time of its dissolution on DATE its general secretary was the second applicant , Mr PERSON , who had been elected to that post in DATE .","In the general election held on DATE HADEP received CARDINAL votes , which represented PERCENT of the total number of votes cast . In the general election held on DATE HADEP received CARDINAL votes . However , as HADEP did not succeed in passing the required threshold of PERCENT , it was unable to be represented in ORG of GPE following these CARDINAL general elections ( see HADEP and Others v. GPE ( dec . ) , no . CARDINAL\/CARDINAL , DATE ) . In local elections held on DATE HADEP won control of CARDINAL municipalities . It had branches in CARDINAL cities and in CARDINAL of districts . In DATE HADEP became a member of ORG .","The applicants submitted that , during a National Security Council ( PERSON ) meeting held on DATE , a decision had been taken to dissolve HADEP . In support of this assertion the applicants submitted to the ORG a report which , they claimed , had been adopted by ORG and which had subsequently been leaked to the press . The report , which is classified ' Secret ' , details a number of recommendations including \u201c the control and pursuit of ORG by the ORG in order to quell its activities \u201d . Following this decision ORG branches had been raided and its administrators had been subjected to physical pressure . In support of this latter argument the applicants submitted to the ORG CARDINAL reports , detailing the physical attacks on and the killings and forced disappearances of CARDINAL of ORG members , some of which have been examined by ORG ( see , inter alia , ORG and Others v. GPE , no . MONEY , ECHR CARDINAL\u2013VIII ) .","On various dates criminal proceedings were brought against a number of members of ORG who were holding executive positions within the party . Some of the proceedings were suspended while some ended in convictions . Some of them were convicted of spreading \u201c separatist propaganda \u201d , in breach of section CARDINAL of the Prevention of Terrorism Act , while others were convicted of \u201c incitement to racial hatred and hostility in society on the basis of a distinction between social classes , races or religions \u201d , in breach of LAW . A number of others were convicted of lending assistance to the ORG in breach of LAW of LAW , for making speeches , allowing hunger strikers to use HADEP LOC and for possessing a number of documents prepared by ORG members in a law - firm owned by CARDINAL of them . Some served their prison sentences while execution of the sentences of a number of others was stayed .","On DATE the chief prosecutor at ORG brought proceedings before ORG and demanded that HADEP be dissolved . The chief prosecutor argued that ORG had become a \u201c centre of illegal activities against the integrity of GPE \u201d . In support of his allegations the chief prosecutor referred to the criminal proceedings pending against members of ORG and a number of activities of its members . CARDINAL incident relied on by the chief prosecutor was that during ORG 's DATE general meeting in DATE the NORP flag had been taken down and replaced with a NORP flag .","On DATE the chief prosecutor asked ORG to render an interim decision banning ORG from taking part in the forthcoming DATE general and local elections . The chief prosecutor 's request was refused by ORG on DATE .","On DATE lawyers for ORG submitted a written defence to ORG . They alleged that the chief prosecutor 's request for the dissolution of ORG had been made as a result of ORG above - mentioned decision ( see paragraph CARDINAL ) . They further argued , inter alia , that as it was not clear what the accusations against HADEP were , it was not possible for them to make full use of their defence rights . The lawyers relied on Articles CARDINAL , CARDINAL , DATE , DATE and DATE of the Convention and Article CARDINAL of Protocol No . CARDINAL to the LAW , and asked ORG to take into account the decisions and judgments of ORG in cases concerning the dissolution of a number of other political parties in GPE .","NORP The chief prosecutor maintained in his written submissions of DATE that ORG had close ties with the ORG , and alleged that the former was being controlled by the latter . The chief prosecutor also repeated his request for HADEP to be dissolved before the elections which were to be held on DATE . This request was not accepted by ORG .","During the proceedings , in their submissions to ORG representatives drew attention to the fact that the person who had taken down the flag was not a member of the party . They further stated that , immediately after the incident the ORG congress had publicly condemned the incident . Since then ORG had been dissociating itself from the incident and condemning it as an attack on a common symbolic value of the people of GPE .","In its decision of CARDINAL DATE ORG decided unanimously to dissolve ORG . The ORG based its decision on Articles DATE and CARDINAL of the LAW and sections FAC and CARDINAL of LAW ( Law no . PERSON ) . In arriving at its conclusion , ORG took account of the activities of certain leaders and members of ORG and concluded that ORG had become a centre of illegal activities which included aiding and abetting the ORG .","ORG noted , in particular , that during ORG 's DATE general meeting in DATE a non - HADEP member wearing a mask had taken down the NORP flag and replaced it with a NORP flag and a poster of the then leader of the ORG , PERSON . During the same meeting slogans had also been chanted in support of the ORG and its leader . The then general secretary of HADEP Mr PERSON , who was present during the meeting on DATE , had done nothing to stop the NORP flag being taken down and had stated during his speech that \u201c the existence of the NORP in GPE , who were not allowed to speak their mother tongue , had been denied . The ORG , despite ongoing military operations , massacres and provocations , was holding its ceasefire . Nothing could be resolved with military operations or with occupation . \u201d ORG considered the taking down of the NORP flag as proof of the links between ORG and the ORG . It further considered that the references made by PERSON PERSON to GPE 's fight against terrorism as an \u201c occupation \u201d and portraying NORP as a separate nation showed that PERSON was supporting the ORG .","The Constitutional Court referred to LAW in its judgment and stated that the rights guaranteed in that provision were not absolute and could be restricted in the circumstances listed in LAW . It also referred to LAW , and reached the following conclusion :","\u201c Carrying out activities , by relying on democratic rights and freedoms , against the indivisible unity of the ORG with its nation is unacceptable . In such circumstances it is the duty and raison d'\u00eatre of the ORG to prevent the abuse of these rights and freedoms . Allowing a political party which supports terrorism and which is supported by terrorism to continue to exist can not be contemplated .","In statements and speeches made on behalf of ORG and in the course of various meetings , the party 's general secretary PERSON , other party officials and chairmen and members of the party 's provincial and district branches have stated that the NORP nation was a different nation from the NORP nation ; that ORG had been enforcing a policy of pressure and oppression on the NORP nation ; that there was an ongoing war between the ORG terrorist organisation and ORG ; and that the NORP nation should take sides with the ORG in this war . Some of these activities have resulted in convictions . These persons have thus aided and harboured the ORG and its leader PERSON , whose aim is to destroy the indivisible unity of the ORG . The incidents , which are detailed in relevant parts of this judgment and which took place during the Second Congress of ORG on DATE in GPE , as well as the objects and documents found in the party headquarters and in the party 's various branches confirm the [ above - mentioned conclusion ] .","Activities by members of ORG and the evidence [ in our possession ] clearly show the links between the respondent party and the ORG . The following incidents and activities \u2013 and many others and judgments rendered by courts \u2013 are proof of the connection and support between ORG and the NORP terrorist organisation :","\u2013 organisation of various activities DATE under instructions from the PKK \u2013 such as hunger strikes , demonstrations and issuing press releases with a view to protesting against the attempt to assassinate PERSON and against the work that had been carried out by ORG to apprehend PERSON , and against his subsequent arrest ;","\u2013 work to create , by referring to concepts such as freedom , brotherhood and peace , a sense of a different nation among the people who live in a certain part of the country or who claim to belong to a certain ethnic group ;","\u2013 description of the ORG 's struggle against the ORG terrorist organisation as a ' dirty war ' , as well as taking sides with the ORG in this war by carrying out certain activities and by displaying certain behaviour ;","\u2013 provision of training to a number of young people , in line with the ORG ideology but under the disguise of in - party training , with a view to recruiting them to the party first and subsequently to the NORP terrorist organisation in order for them to carry out activities on behalf of the NORP terrorist organisation and then sending them to the ORG 's mountain camps as armed militants ;","\u2013 the keeping in the ORG 's headquarters and in its district and provincial branches , of objects , books , banners and photographs of members of the ORG as well as other ORG terrorist organisation propaganda documents for which the courts have issued confiscation orders ;","\u2013 the fact of allowing people to watch the organisation 's media organ ORG in these places for propaganda purposes ; and","\u2013 speeches and activities during ORG 's ORG .","In the light of the above , and in accordance with Articles DATE and CARDINAL of the LAW and LAW ( b ) of LAW , it is hereby decided to dissolve HADEP , which has become a centre of illegal activities against the indivisible unity of the ORG with its nation and which has aided and harboured the ORG terrorist organisation .","... \u201d","As an ancillary measure under LAW , ORG banned CARDINAL ORG members and leaders from becoming founder members , ordinary members , leaders or auditors of any other political party for DATE . ORG also ordered the transfer of ORG 's property to the ORG .","The decision of ORG became final following its publication in ORG on DATE .","Article CARDINAL of LAW in force at the relevant time provided as follows :","\u201c Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever , shall be sentenced to not CARDINAL and not DATE imprisonment ... \u201d","Article CARDINAL of the Criminal Code in force at the relevant time provided as follows :","\u201c Non - public incitement to commit an offence","A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to DATE imprisonment and a heavy fine of DATE MONEY .","A person who incites people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL imprisonment and a fine of DATE . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .","The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . \u201d","Section CARDINAL of the Prevention of Terrorism Act provided , in so far as relevant , as follows :","\u201c Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not DATE imprisonment and a fine of CARDINAL . The penalty imposed on a reoffender may not be commuted to a fine . \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW provides as follows :","\u201c A political party 's programme , statute or activities may not contradict the sovereignty of the ORG , the indivisible unity of the ORG with its nation , human rights , equality , principles of rule of law , sovereignty of the nation and democratic and secular principles of the Republic ; they may not seek to establish a class - based dictatorship or any dictatorship and they may not incite people to commit offences . \u201d","The relevant paragraphs of LAW provide as follows :","\u201c CARDINAL . A decision to permanently dissolve a political party shall be taken if it is established that its statute and programme are not compatible with LAW ;","A decision to permanently dissolve a political party on account of activities which are contrary to LAW can only be taken if ORG decides that [ the party ] has become a centre where such activities are carried out . A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party 's congress , its decision - making bodies or its groups within ORG , or if those activities are carried out directly by the party 's organs in a decisive manner ;","Depending on the severity of the actions in question , ORG may , instead of dissolving the party , decide to fully or partly deprive it of the financial aid it receives from the ORG ;","...","NORP Founding members or ordinary members whose declarations or actions lead to the permanent dissolution of a political party shall be disqualified from acting as founders , ordinary members , administrators or auditors of another political party for a period of DATE starting from the date of publication in ORG of the reasoned decision of ORG ;","... \u201d","At the time of the dissolution of HADEP the relevant paragraph of LAW provided as follows :","\u201c ORG sits with its president and CARDINAL members , and adopts its decisions with a simple majority . Cases concerning the annulation of provisions of the LAW or the dissolution of a political party require a CARDINAL majority .","... \u201d","On DATE Article CARDINAL of the LAW was amended . The relevant paragraph now reads as follows :","\u201c ... When deciding to dissolve a political party or to deprive it of the financial aid it receives from the ORG , a CARDINAL majority is required .","... \u201d","Sections CARDINAL and CARDINAL of LAW ( Law no . CARDINAL ) provide as follows :","\u201c ORG may decide to dissolve a political party :","( a ) where [ that party 's ] programme or statute contradicts the sovereignty of the ORG , the indivisible unity of the ORG with its nation , human rights , equality , principles of rule of law , sovereignty of the nation and democratic and secular principles of the LOC [ and where they ] defend and seek to establish a class - based dictatorship or any dictatorship [ and where they ] incite people to commit offences ;","( b ) where it is established by ORG that [ the ] political party has become a centre of activities contrary to LAW ; and","( c ) where [ the party ] has received financial assistance from a foreign ORG , international organisation or from non - NORP persons and companies .","In cases concerning ( a ) and ( b ) above and depending on the severity of the activities concerned , ORG may , instead of dissolving the party , deprive it of CARDINAL or more of the financial assistance provided by the ORG for DATE ... \u201d","\u201c The Constitutional Court shall have the power to determine whether a political party has become a centre of activities which are contrary to LAW .","A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party 's congress , its decision - making bodies or its groups within ORG , or if those activities are carried out directly by the party 's organs in a decisive manner . \u201d","In its Guidelines on the prohibition and dissolution of political parties and analogous methods ( published in DATE ) ORG ) proposed the following :","\u201c CARDINAL . States should recognise that everyone has the right to associate freely in political parties . This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers . The requirement to register political parties will not in itself be considered to be in violation of this right .","Any limitations to the exercise of the above - mentioned fundamental human rights through the activity of political parties shall be consistent with the relevant provisions of LAW and other international treaties , in normal times as well as in cases of public emergencies .","Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order , thereby undermining the rights and freedoms guaranteed by the constitution . The fact alone that a party advocates a peaceful change of the LAW should not be sufficient for its prohibition or dissolution .","A political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political \/ public and party activities .","The prohibition or dissolution of political parties as a particularly far - reaching measure should be used with utmost restraint . Before asking the competent judicial body to prohibit or dissolve a party , governments or other state organs should assess , having regard to the situation of the country concerned , whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other , less radical measures could prevent the said danger .","Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality . Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means .","The prohibition or dissolution of a political party should be decided by the LAW court or other appropriate judicial body in a procedure offering all guarantees of due process , openness and a fair trial . \u201d","Resolution CARDINAL ( DATE ) of ORG of ORG on \u201c Restrictions on political parties in ORG member states \u201d states , in particular , as follows :","\u201c ...","... [ T]he ORG believes that in exceptional cases , it may be legitimate for a party to be banned if its existence threatens the democratic order of the country .","In conclusion and in the light of the foregoing , the ORG calls on the governments of member states to comply with the following principles :","i. political pluralism is one of the fundamental principles of every democratic regime ;","ii . restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country ;","iii . as far as possible , less radical measures than dissolution should be used ;","iv . a party can not be held responsible for the action taken by its members if such action is contrary to its statute or activities ;","v. a political party should be banned or dissolved only as a last resort , in conformity with the constitutional order of the country , and in accordance with the procedures which provide all the necessary guarantees to a fair trial ;","vi . the legal system in each member state should include specific provisions to ensure that measures restricting parties can not be used in an arbitrary manner by the political authorities . \u201d","On DATE ORG , acting on a request from ORG of ORG of ORG PACE ) asking it \u201c to review the constitutional and legal provisions which are relevant to the prohibition of political parties in GPE \u201d , adopted the \u201c Opinion on ORG to the Prohibition of Political Parties in GPE \u201d . The relevant parts of the Opinion are as follows :","\u201c ...","ORG concludes that , when compared to the common NORP practice , the situation in GPE differs in QUANTITY important respects :","There is a long list of substantive criteria applicable to the constitutionality of political parties , as laid down in DATE ( CARDINAL ) and the PERSON on political parties , which go beyond the criteria recognised as legitimate by the ECtHR and ORG .","NORP There is a procedure for initiating decisions on party prohibition or dissolution which makes this initiative more arbitrary and less subject to democratic control , than in other NORP countries .","There is a tradition for regularly applying the rules on party closure to an extent that has no parallel in any other NORP country , and which demonstrates that this is not in effect regarded as an extraordinary measure , but as a structural and operative part of the constitution .","In conclusion , ORG is of the opinion that the provisions in LAW and CARDINAL of the LAW and the relevant provisions of the LAW on political parties together form a system which as a whole is incompatible with LAW ORG as interpreted by the ECtHR and the criteria adopted in DATE by ORG and since endorsed by ORG of ORG .","The basic problem with the present NORP rules on party closure is that the general threshold is too low , both for initiating procedures for and for prohibiting or dissolving parties . This is in itself in abstracto deviating from common NORP democratic standards , and it leads too easily to action that will be in breach of the ORG , as demonstrated in the many NORP cases before ORG .","Because the substantial and procedural threshold for applying the NORP rules on party prohibition or dissolution is so low , what should be an exceptional measure functions in fact as a regular one . This reduces the arena for democratic politics and widens the scope for constitutional adjudication on political issues . The scope of democratic politics is further eroded by the constitutional shielding of the first CARDINAL articles of the LAW , in such a way as to prevent the emergence of political programmes that question the principles laid down at the origin of GPE , even if done in a peaceful and democratic manner .","ORG is of the opinion that within democratic LOC these strict limitations on the legitimate arena for democratic politics are particular to the NORP constitutional system , and difficult to reconcile with basic NORP traditions for constitutional democracy .","ORG recognises and welcomes the fact that in DATE the rules on party prohibition in GPE have been changed in such a way as to raise the threshold for dissolution . In the DATE reform , LAW was amended to include the qualification that for a party to be in conflict with the criteria of LAW ( CARDINAL ) the party must be a ' centre ' for such activities . At the same time , the requirement of a CARDINAL majority of ORG for dissolving a political party was introduced into LAW . This has shown itself to be an important reform , which was decisive for the outcome of the AK party case . While laudable , these reforms have not been sufficient to fully bridge the gap between the NORP rules and the standards of the ORG and ORG .","Consequently , ORG is of the opinion that , although the DATE revision was an important step in the right direction , it is still not sufficient to raise the general level of party protection in GPE to that of the ORG and the NORP common democratic standards . Further reform is necessary in order to achieve this , both on the substantive and the procedural side .","... \u201d"],"violated_articles":["11"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108237","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2011,"docname":"CASE OF G.C.P. v. ROMANIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["The applicant was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a third party brought criminal proceedings against the applicant for wrongful misappropriation . The third party claimed that the applicant had unlawfully used private funds belonging to his companies in order to increase the capital of a commercial bank ( PERSON ) and become a major shareholder in the said bank .","On DATE the Judicial Police attached to ORG of the ORG asked the third party to provide additional information in respect of the unlawful acts allegedly committed by the applicant .","On DATE , the ORG DATE newspaper published an article entitled \u201c The investigation files of GPE \u2013 strictly secret ? \u201d The article quoted statements by PERSON , CARDINAL of the prosecutors conducting the investigation against the applicant , of which the most relevant part reads as follows :","\u201c We have been accused of insisting on imposing [ on ORG ] an order not to leave the city , a measure which is usually taken when there are suspicions that somebody has committed an unlawful act . However , as I already told you and as [ can be seen ] from checks carried out by ORG [ Garda Financiar\u0103 ] , here there have been unlawful acts committed , not only suspicions . In spite of that , we have proven to be humane , when at his [ ORG \u2019s ] request we allowed him to leave GPE for TIME . \u201d","On DATE the applicant was charged with fraud , forging documents and use of forged documents , embezzlement , using the goods of a commercial company against its interests and undermining the national economy , on account of the fact that , by acting on behalf of the private company ( ORG ) , which the applicant controlled as the major shareholder , he had allegedly made false statements in an official document submitted to ORG on DATE in order to obtain its permission to increase the capital of ORG by the amount of CARDINAL GPE Dollars ( ORG ) . More specifically , the applicant was suspected of declaring the aforementioned amount as his personal funds , when in fact it had been obtained as a loan taken out by ORG from a foreign bank , which was contrary to ORG regulations on acceptable sources of money used to increase a bank \u2019s capital .","On DATE the applicant brought a challenge against the CARDINAL prosecutors , including PERSON , charged with the investigation of his case at the time , arguing , inter alia , that press statements made by the said prosecutors on CARDINAL DATE in the GPE DATE newspaper DATE claiming that the applicant \u2019s financial investments were \u201c acts of fraud \u201d \u2013 amounted to a breach of his right to the presumption of innocence .","According to the applicant , his challenge of DATE against the prosecutors PERSON and PERSON was allowed by a final ORG and a new prosecutor was appointed to investigate his case . The applicant failed to include in the file a copy of the order of DATE .","On DATE the GPE DATE newspaper published an article entitled \u201c G.D. states that ORG should have been indicted long ago for CARDINAL of the proven crimes \u201d . The most relevant part of the article , which quoted statements by ORG , the NORP Minister of the Interior at the time , reads as follows :","\u201c ORG could be indicted for CARDINAL already proven crimes , namely the ones connected to the embezzlement through ORG , from ORG to ORG . MONEY taken by ORG from ORG for a factory in GPE were embezzled so that he could take over the majority of the shares in ORG . ( ... ) Although there is proof that several crimes have been committed by ORG , he is only under investigation for CARDINAL , and the prosecutor \u2019s investigation is lasting a suspiciously long time . \u201d","On DATE , the GPE DATE newspaper published an article entitled \u201c GPE and PERSON accused of undermining the national economy \u201d . Quoting the same prosecutor , PERSON , the relevant parts of the article read as follows :","\u201c On DATE in file no . CARDINAL of ORG , the file concerning the defendant ORG , the criminal investigation was extended with respect to the crime of undermining the national economy , punishable under LAW \u00a7 CARDINAL of LAW . Hence , DATE , [ ORG ] used a state - owned public interest bank , ORG , in order to obtain certain financial facilities in the amount of MONEY , to be used for the reimbursement of certain loans contracted by his commercial company , ORG This undermined the national economy and disturbed the activity of ORG and , as a consequence , the national economy . \u201d","NORP By letter of CARDINAL DATE prosecutor PERSON , the prosecutor investigating the applicant \u2019s case at the time , asked ORG of GPE to confirm that he could continue the investigation in the case . He expressly stated that he did not have any personal interest or otherwise in respect of the investigation and that he would accept the Prosecutor General \u2019s decision . He informed ORG that if he was allowed to continue working on the case he would not be subject to any outside influence or pressure in carrying out the investigation .","On DATE , the Evenimentul Zilei published an article entitled \u201c PERSON found the solution for destroying the mafia in GPE overseas : The NORP should come with bazookas \u201d . The article quoted statements made by PERSON , ORG at the time . The most relevant part reads as follows :","\u201c In the case of ORG , who knew all about financial tricks [ ingineriile financiare ] and covered his tracks with lots of documents , the experts\u2019 report is not finished yet . I believe that there is a PERCENT chance that he will also be sent to trial , but I would make a suggestion to the police to not just stick to the small cases of GPE , because the CARDINAL of them have [ done ] more than this . \u201d","In addition , the parties agree that a total of CARDINAL articles containing information on the investigation and the trial against the applicant were published DATE in all the major national newspapers , including PERSON , PERSON , GPE , GPE , ORG . Some of the most relevant story titles quoted by the applicant in this respect read as follows : \u201c The trap is tightening \u201d ( GPE , DATE ) ; \u201c ORG at millionaires ! \u201d ( GPE , DATE ) ; \u201c The return of the jackals \u201d ( GPE , DATE ) ; \u201c Sharks at large \u201d ( GPE , DATE ) ; \u201c ORG \u2019s companies have filled their bank accounts on ORG \u2019s back \u201d ( PERSON , DATE ) ; \u201c Just when the prosecutors were on the point of indicting him , ORG found refuge in a hospital in GPE \u201d ( ORG , DATE ) ; \u201c ORG ran away in the GPE \u201d ( ORG , CARDINAL DATE ) ; and \u201c The heroes ORG and GPE ( GPE , DATE ) .","By an order of DATE the Prosecutor General dismissed PERSON from his position of ORG of ORG and transferred him to the Secretarial and Public Relations Department . At the same time , PERSON was tasked with continuing the criminal investigation against the applicant . ORG held that the criminal investigation had been unreasonably lengthy without any objective reasons and that GPE , CARDINAL of the parties involved in the matter , had lodged a challenge and had complained about GPE","On DATE the applicant was indicted for making false statements in an official document , as he had not declared the true source of the money used for increasing the capital of PERSON .","NORP The investigation also continued separately in respect of the charge of undermining the national economy and using the goods of a commercial company against its interests . At the same time , the charges concerning fraud , forging documents , use of forged documents and embezzlement were dropped and the part of the criminal investigation covering those charges was closed on the grounds that the applicant \u2019s actions were found to have been lawful .","By a final Prosecutor \u2019s Order of DATE the criminal investigation initiated against the applicant for undermining the national economy was discontinued on the grounds that no unlawful act had been committed .","By a judgment of DATE the Bucharest ORG decided that the indictment of CARDINAL June DATE was null and void because the applicant had not been informed of the charges against him , as he had been in GPE at the time of his indictment . Consequently , the court ordered the file to be sent back to ORG .","NORP The prosecutor submitted an appeal on points of law ( recurs ) against the judgment of DATE .","By a judgment of DATE of ORG appeal was allowed and the case was sent back to the first - instance court for a retrial on the merits . ORG held that there had been no reason for the indictment to be annulled , as the decision of the investigating prosecutors to send the case before the court without informing the applicant of the charges against him had been in accordance with the legal provisions of LAW applicable to persons avoiding the investigative authorities . In reaching this decision , the court took into account the fact that neither the applicant nor his attorney had provided the investigators with an exact address at which the applicant could be summoned during the investigation .","By a final Prosecutor \u2019s Order of DATE the criminal investigation initiated against the applicant for using the goods of a commercial company against its interests was discontinued on the grounds that no unlawful act had been committed .","On CARDINAL DATE the first hearing in the retrial of the case was held before ORG following the judgment of DATE . The applicant was heard by the court . He argued , inter alia , that the criminal investigation against him had been based on political motives , a fact which could be confirmed by the negative media campaign conducted against him and by the public statements made by ORG representatives .","By a judgment of DATE the GPE ORG acquitted the applicant on the grounds that from all the evidence produced it emerged that his actions had been in accordance with the law . ORG appealed against the judgment .","By a judgment of DATE the ORG allowed ORG appeal , convicted the applicant of making false statements in an official document and sentenced him to DATE of imprisonment , a sentence which was considered pardoned according to the law . The court held that , on the basis of the evidence available in the file , the applicant had made false statements in an official document and had been aware of the legal consequences of his statements . The applicant lodged an appeal on points of law ( recurs ) against the judgment . He argued that the criminal investigation against him had been politically motivated , a fact confirmed by the alleged failure of the domestic courts to take into account and to examine the evidence submitted by him in his defence . In addition , the applicant argued that the domestic courts had wrongfully assessed the evidence , had misinterpreted the applicable legal provisions and had ignored the fact that the indictment brought against him had been null and void because the investigating prosecutor had failed to inform him of the charges brought against him prior to sending the case before the domestic courts .","By a final judgment of DATE ORG dismissed the applicant \u2019s appeal on points of law and his conviction became final . The court held , on the basis of the evidence available in the file , that the lower courts had correctly assessed the evidence and interpreted the applicable legal provisions and that the applicant had been informed of the charges brought against him by ORG .","On DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and on CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE the applicant lodged repeated extraordinary appeal of annulment ( recurs \u00een anulare ) requests against the final judgment of DATE with ORG attached to ORG . He argued , inter alia , that his right to the presumption of innocence had been breached on account of an aggressive media campaign led by ORG and the Minister of the ORG which had resulted in the criminal investigation being opened against him and in him being indicted .","On DATE the applicant \u2019s extraordinary appeal applications were dismissed by ORG attached to ORG on account of statutory amendments to the applicable rules of criminal procedure abolishing that form of appeal .","The relevant provisions of LAW in force at the relevant time are worded as follows :","\u201c [ ... ]","A person is considered innocent pending a final court conviction . \u201d","The relevant provisions of LAW in force at the relevant time are worded as follows :","\u201c ( CARDINAL ) The person accused of or charged with a criminal offence does not have to prove his innocence .","( CARDINAL ) Where evidence is adduced proving a person \u2019s guilt , the accused or the person charged with a criminal offence has the right to rebut the evidence . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107136","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2011,"docname":"COLLOREDO MANSFELDOV\u00c1 v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr V.A. Schorm , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is the daughter and heir of PERSON , a NORP nobleman who died in DATE . On DATE during the NORP occupation of GPE , the latter \u2019s estate and castle in PERSON were confiscated by the occupying forces . After the war and after the estate had been returned to the applicant \u2019s family , the former ORG ( zemsk\u00fd n\u00e1rodn\u00ed v\u00fdbor ) confiscated the estate on the ground that the applicant \u2019s father was to be considered NORP , as he had stated that he was of NORP origin in a questionnaire during the war .","On DATE ORG , deciding upon an appeal by the applicant \u2019s late father , quashed the confiscation decision finding that the statutory requirements necessary for the confiscation had not been met in his case . The estate remained in the possession of the ORG .","In DATE the applicant filed an action with the ORG ( okresn\u00ed soud ) , whereby she sought to order the ORG represented by ORG ( pam\u00e1tkov\u00fd \u00fastav ) to conclude with her a restitution agreement with regard to the castle and other facilities under LAW . On DATE ORG rejected her action but the ORG Kr\u00e1lov\u00e9 ORG ( krajsk\u00fd soud ) quashed this judgment on CARDINAL DATE and sent the case back to ORG which , in a judgment of DATE , dismissed the applicant \u2019s action for the second time , finding that she did not meet requirements enshrined in the restitution legislation , including the requirement that the transfer or passing of the ownership of the property occurred in DATE should have been due to racial persecution .","The judgment was subsequently upheld by ORG .","In judgment no . CARDINAL Cdo CARDINAL\/CARDINAL adopted on DATE ORG ( PERSON ) , deciding upon the applicant \u2019s appeal on points of law , quashed both judgments . In its view , the confiscation by GPE had been due to the applicant \u2019s NORP origin , as NORP were regarded by the NORP as an inferior race , and therefore amounted to racial persecution within the meaning of section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act . It noted that the estate had been taken under a confiscation measure that applied to NORP . Having regard also to the fact that the estate had been taken from the applicant \u2019s family twice , first by the NORP and then by the communist regime , the court found that the requirement of section CARDINAL(CARDINAL ) of the LAW was met . It stated obiter dictum that any interpretation of the term of racial persecution , limiting the application of that notion only to NORP , would be contrary to LAW and to LAW pr\u00e1v a svobod ) . The court held in particular :","\u201c Having regard to the objectives of the restitution laws , it appears unsustainable to ORG to interpret the notion of racial persecution in a restrictive manner when the NORP administration of ... [ occupied GPE ] sanctioned the applicant \u2019s ascendant for \u201c efforts adverse to the Reich \u201d .","On DATE ORG , bound by ORG judgment , found in favour of the applicant and ordered the defendant to conclude a restitution agreement with her and to transfer the ownership of the estate to her . On DATE ORG upheld this judgment .","On CARDINAL and DATE the applicant concluded with ORG ( N\u00e1rodn\u00ed pam\u00e1tkov\u00fd \u00fastav ) , successor in title to ORG , the restitution agreement on the transfer of the estate to her . On DATE she was registered as the owner of the estate with the land register and during DATE entered into possession in accordance with the restitution agreement .","On DATE ORG declared inadmissible an appeal on points of law by ORG which , on DATE , made a constitutional appeal alleging an infringement of its property rights and the right to judicial protection under the Charter .","In a judgment of DATE ORG quashed the lower courts\u2019 decisions and remitted the case to ORG . It admitted that in civil proceedings , it was incumbent upon the parties to assert their rights and to allege relevant facts , but considered that the ordinary courts were nevertheless obliged to search for and take further evidence on their own initiative . It found that , not having done so , they had breached LAW . According to the court , the conclusion of the lower courts that the applicant \u2019s late father had met the conditions set by LAW was erroneous , since he had been registered as NORP when filling in a questionnaire . It added that , the courts had omitted to take into consideration certain material , including an essay entitled \u201c The PERSON family and the PERSON family of PERSON \u201d of which ORG took judicial notice , which showed that the applicant \u2019s late father had been disloyal during the war as he had applied for NORP citizenship .","The court also considered that the confiscation of the estate by the NORP occupying forces could not be regarded as constituting racial persecution of the applicant \u2019s late father within the meaning of the Extra - Judicial Rehabilitation Act , as ORG had found on DATE . It was apparent from sections CARDINAL ) and CARDINAL(CARDINAL ) of this LAW , from its aim and from the record on the debate preceding the adoption of LAW no . CARDINAL in the lower chamber of the ORG , that the term of \u201c racial persecution \u201d covered in particular NORP who were victims of the Holocaust . This was , however , not the case of the applicant \u2019s father . The court rejected as inappropriate ORG obiter dictum that such a restrictive interpretation would constitute inequality among victims of the period of lack of freedom and would privilege CARDINAL group of people on the ground of race contrary to LAW and the LAW . Indeed , the principle of equality could not be interpreted as an absolute one and equality among citizens could not be construed as an abstract category , but as a relative equality within the meaning of all modern constitutions . A restrictive interpretation of the notion of racial persecution under LAW was not contrary to the principle of equality .","Apparently on DATE ORG asked the parties to the procedure whether they would propose further evidence . It also requested the applicant to specify whether she would propose further evidence in support of her assertions that the confiscation had taken place due to racial persecution and that the estate had been taken away and passed into the ownership of ORG in the relevant period within the meaning of the Extra - Judicial Rehabilitation Act . It also requested the defendant to indicate whether it would propose any further evidence to support its assertion that the NORP citizenship of the applicant \u2019s late father had legally ceased to exist . Both parties submitted further documentary evidence .","At the hearing of DATE ORG considered extensive documentary evidence , including a historical essay by Dr. PERSON called \u201c The PERSON family and the PERSON family of PERSON \u201d ( PERSON a opo\u010den\u0161t\u00ed PERSON ) , the so - called administrative record and correspondence between ORG and ORG of DATE and DATE when these CARDINAL authorities were searching for documents concerning the examination of the citizenship of the applicant \u2019s late father .","On DATE ORG , having held another hearing , dismissed the applicant \u2019s action . It found that all the requirements for restitution had been met with the exception of loss of property due to racial persecution . The court underlined that when assessing that requirement it was bound by the ruling of ORG of DATE .","On DATE ORG upheld this judgment .","On DATE ORG rejected the applicant \u2019s appeal on points of law , referring to the binding interpretation by ORG of the notion of racial persecution .","On DATE the applicant appealed to ORG , asserting an erroneous interpretation of the notion of racial persecution within the meaning of section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act and procedural shortcomings in consequence of which she had not put forward any evidence establishing that her father \u2019s mother was of NORP origin . It appears that her constitutional appeal remains undecided .","On DATE the ORG represented by ORG filed against the applicant an action for determination of ownership of the estate with ORG .","In a judgment of DATE the court granted the ORG \u2019s action and found it to be the owner of the estate and decided that the ORG was empowered to maintain the estate .","On DATE ORG quashed this judgment as to ORG finding that the ORG was empowered to upkeep the estate , stayed the proceedings in this respect and transferred this part of the case to ORG . It noted that ORG had been bound by the judgment of ORG of DATE . The judgment became final on DATE .","On DATE the ORG was registered in the land register as the owner of the estate .","The act provides for mitigation of injustices caused by the NORP rule in GPE from CARDINAL DATE to CARDINAL DATE ( \u201c the relevant period \u201d ) .","Under section CARDINAL(CARDINAL ) property injustices caused by , inter alia , unlawful practices carried out in the relevant period , are to be mitigated , inter alia , by the surrender of the property , provided that the injustices originated in political persecution or in a practice contravening universally accepted human rights and freedoms ( section CARDINAL(CARDINAL)(c ) ) .","Section CARDINAL(CARDINAL ) extended the application of the LAW to natural persons who had lost their property due to racial persecution during the Second World War and were entitled to restitution of it after the war pursuant to Decree no . CARDINAL\/CARDINAL or Act no . CARDINAL and in respect of whom the NORP regime established on DATE had failed to grant such claims whilst pursuing its policy of political persecution or carrying out practices contrary to universally accepted human rights and freedoms .","Under section CARDINAL if a chamber comes to a legal view differing from that expressed by the court in a previous ruling , it shall submit the issue to the ORG for its consideration . The latter \u2019s legal view is binding on the chamber in further proceedings .","Under section CARDINAL(CARDINAL)(a ) , a constitutional appeal may be lodged pursuant to section CARDINAL(CARDINAL)(d ) of the LAW by a natural or legal person , alleging that its fundamental rights or basic freedoms guaranteed by the constitutional law have been infringed as a result of a final decision in proceedings to which it was a party , a measure , or any other infringement by a public authority .","ORG rejected a constitutional appeal lodged by a group of MPs seeking to abrogate the adjective \u201c racial \u201d from section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act . In their view , the term \u201c racial persecution \u201d created inequality on the ground of race among those whose property was adversely affected during the occupation . They asserted that it manifestly contravened LAW adopted by ORG in DATE and LAW . In the court \u2019s view the impugned provision had to be interpreted in conformity with these legal instruments . It held , inter alia :","\u201c [ I]t is evident that racial discrimination under ORG concerned a much larger group ( groups ) of people than only those concerned by LAW [ i.e. NORP ] , and that the legal terms such as \u201c national , racial and political \u201d used in section CARDINAL(CARDINAL ) of Decree no . CARDINAL\/CARDINAL are largely superfluous . \u201d","ORG rejected a constitutional appeal lodged by ORG . The ORG had contested the legal assessment of ordinary courts as to which ORG body should be held liable to pay compensation to a private individual . Having noted that that issue was governed by public law , the court ruled that the ORG could not be regarded as an owner disposing freely of its property , but merely as a ORG body acting in its public authority , which does not have a standing to appeal to ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85567","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF TIKHOV AND OTHERS v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants live in various towns of GPE and GPE of GPE .","The applicants , all former or active military servicepersons , were entitled to certain service - related benefits , to be paid by ORG of GPE . In DATE they sued the military authorities claiming the arrears related to those benefits .","On the dates set out in appendixes ORG . CARDINAL , CARDINAL and CARDINAL the domestic courts granted the applicants ' claims and ordered the military authorities to pay them the respective amounts . Some of the awards were denominated in NORP roubles ( RUB ) , whereas others were denominated in MONEY ( USD ) .","On various dates the courts issued writs of execution . The applicants forwarded them with accompanying documents to the treasury office . However , the writs were returned to the applicants unexecuted . The treasury office explained to some of the applicants that ORG ( the debtor ) had no funds available . The applicants then addressed the writs of execution to ORG . However , the judgments remained unexecuted .","In DATE some of the applicants wrote letters to ORG and other ORG bodies seeking the enforcement of the judgments . ORG replied that they had no power to execute the judgments and transfer the money from the accounts of ORG without the consent of the latter . ORG informed the applicants that the judgments could not be executed since no funds had been allocated for that purpose .","On the dates set out in appendix no . CARDINAL the applicants listed therein received the amounts due pursuant to the execution writs . They submitted copies of banking receipts as evidence in that respect .","The applicants listed in appendix no . CARDINAL were awarded various sums of money denominated in ORG , to be converted into RUB at a rate applicable on the date of the judgment . However , the payments were made to them at a rate applicable on the date of the execution , which was lower . As a result , they received lesser amounts in RUB than they had expected . The applicants claimed that the judgments in their favour were thus not executed in full . They submitted copies of banking receipts and information on the official exchange rates ( those of ORG ) on the relevant dates .","Mr Sedykh , PERSON and Mr PERSON were also awarded various amounts denominated in DATE ( see appendix no . CARDINAL ) . PERSON was awarded a sum in FAC at a rate applicable on the date of execution . The judgments in favour of PERSON and Mr PERSON did not indicate the exchange rate applicable for the payment . The applicants claimed that the judgments in their favour were not executed in full referring to the same arguments as the applicants listed in appendix no . CARDINAL ( see paragraph CARDINAL above ) . According to the Government the judgments in favour of the applicants listed in appendix no . CARDINAL and in favour of Mr GPE , PERSON and Mr PERSON were fully executed .","On DATE the lawyer of the above CARDINAL applicants addressed the writs of execution to ORG . According to the official stamp of ORG , they were received on DATE .","On DATE ORG returned the documents along with the writ of execution to PERSON on the ground that his lawyer had not submitted all the necessary supporting documents . According to the applicants all the necessary documents were submitted . In DATE the applicants ' lawyer re - submitted the documents of Mr PERSON to the Ministry of Finance .","According to PERSON , her documents were apparently returned to her address indicated on the writ of execution . Since PERSON did not live at that address at the time , the post office sent the documents back to ORG . According to the Government , ORG have never received PERSON documents .","The judgments in favour of Mr PERSON and PERSON ( see appendix no . CARDINAL ) are not executed to date ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23719","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2004,"docname":"VERHOEK v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a GPE national , who was born in DATE and has no known fixed abode in the GPE . He is represented before the ORG by PERSON PERSON . , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","In DATE a combined fiscal and criminal investigation under the code name PERSON ( hummingbird ) was opened into a criminal organisation allegedly engaged in large - scale shipment of drugs from GPE to the GPE , the GPE and GPE . For this purpose an investigation team was created composed of police officers , fiscal investigation officers and public prosecutors ( the PERSON - team ) . Over DATE numerous witnesses and suspects were questioned , requests for mutual legal assistance were made to , inter alia , GPE , GPE , the GPE , GPE and GPE , rafts packed with drugs were seized in GPE , a search operation was carried out in co - operation with the navy and barrels filled with drugs were salvaged by divers off the coast of the GPE .","The investigation concentrated , inter alia , on the following shipments :","the shipment of QUANTITY of marihuana to the GPE aboard the NORP \/ PERSON ;","the shipment of QUANTITY of marihuana to the GPE and GPE aboard the PERSON ;","the shipment of QUANTITY of marihuana to GPE and the GPE aboard ORG .","In DATE a certain PERSON , who was under investigation for his alleged participation in ORG CARDINAL shipment , gave a statement to a GPE public prosecutor CARDINAL of these shipments . At the time he was being detained in GPE , where he had been convicted of involvement in another shipment of drugs . He indicated that he was willing to make further statements in exchange for an early extradition to the GPE . After he had served his prison sentence in GPE , PERSON spent DATE in detention pending extradition and in DATE he arrived in the GPE . He was detained on remand on suspicion of participation in the above - mentioned shipments of drugs . He made further statements to the police . CARDINAL of these statements consisted of falsehoods . According to PERSON , his statements contained falsehoods because he did not trust his lawyer . In DATE a written agreement was concluded between PERSON and the public prosecutors ORG and PERSON According to the agreement , PERSON undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so . In exchange for his statements he was released from detention on remand and was given an undertaking that if the prison sentence imposed on him exceeded the time he had already spent in detention pending extradition and detention on remand , the sentence would not be executed . Furthermore , the public prosecution service ( openbaar ministerie ) undertook to take appropriate measures to safeguard his safety as far as possible . If PERSON reneged on his obligations , the prosecution service reserved the right to use his statements and would no longer be bound to comply with its part of the agreement .","Thereupon , PERSON continued to make detailed statements about the preparation for and the carrying out of the shipments of drugs as well as about the people involved , including himself and the applicant .","In DATE the lawyers of a certain A. , a suspect in the PERSON investigation , contacted the public prosecution service . A. was aware of the fact that he was under investigation in the GPE and indicated that he was interested in talking to the prosecution service . An agreement DATE and the public prosecutors T. and PERSON was concluded and was consigned to writing . PERSON undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so . In exchange , he was enabled to trade off any criminal prosecution in the GPE in respect of the criminal offences to which he had confessed by making a payment of MONEY ( NLG ) ( MONEY ( ORG ) ) . The public prosecution office undertook to inform the authorities of several other countries about A. \u2019s co - operation . The prosecution service reserved the right to use ORG \u2019s statements and not to comply with its part of the agreement if PERSON reneged on his obligations . A. made CARDINAL statements about the organisation of the drugs shipments and the people involved , including himself and the applicant . The first CARDINAL statements contained demonstrable falsehoods .","ORG were also questioned by ORG ( \u201c ORG \u201d ) about several shipments of drugs .","In DATE the applicant , who was by then suspected of being one of the ringleaders of the criminal organisation responsible for the shipments , was arrested and detained on remand .","The applicant was charged with membership of a criminal organisation and participation in the shipment of drugs aboard the NORP \/ PERSON , the PERSON and ORG CARDINAL . DATE and DATE , CARDINAL hearings were held before ORG ( arrondissementsrechtbank ) of GPE . On DATE ORG convicted the applicant of all charges and sentenced him to CARDINAL years\u2019 imprisonment . The applicant lodged an appeal and DATE and DATE , CARDINAL hearings were held before ORG ( gerechtshof ) of GPE .","In the course of the proceedings before ORG and ORG the following relevant events occurred :","ORG were questioned extensively before the investigating judge , before ORG and before ORG about their motives for testifying , about the falsehoods in their initial statements , about the agreements reached with the public prosecution service and about the contents of their statements . PERSON was also questioned about the course of events during his imprisonment in GPE in DATE .","Both ORG claimed the right to remain silent in respect of certain questions put by the defence . After having heard the arguments of ORG as well as the submissions of the defence and of the prosecution , the domestic courts ordered that ORG answer most of these questions . They were excused from answering some questions relating to their contacts with the ORG and their financial situation , since replying to these questions was considered likely to incriminate or endanger them .","Numerous other witnesses were questioned , inter alia , business and personal contacts of ORG , about the latter witnesses\u2019 reliability and credibility . A NORP investigating judge was questioned about PERSON \u2019s situation in DATE . Furthermore , CARDINAL law professors and an expert who had made a comparative law study on agreements with witnesses were extensively questioned by ORG about all manner of legal issues relating to this kind of agreement . The public prosecutors ORG and PERSON were questioned before ORG about the course of the investigation , the agreements with ORG and their contacts with several other witnesses .","ORG rejected the defence \u2019s request to question PERSON , PERSON \u2019s lawyer in GPE in DATE , being of the opinion that his testimony could not have any bearing on any decision to be taken in the case against the applicant . ORG reasoned in this connection that the questions which the defence wanted to put to him concerned the agreement concluded between PERSON and the public prosecution service in DATE , whereas PERSON had been PERSON \u2019s lawyer in DATE .","In the course of the proceedings before ORG it became clear that the public prosecution service and PERSON \u2019s lawyer , PERSON , had been in contact and had exchanged correspondence relating to various financial aspects of the agreement concluded between the public prosecution service and ORG of this correspondence was added to the case file and PERSON , the public prosecutors ORG and PERSON as well as PERSON were questioned before ORG about their correspondence .","During the hearings and in their pleadings before ORG and ORG , the defence extensively challenged the lawfulness of the agreements and their contents , sought to cast doubt on the credibility of the witnesses PERSON and A. and complained about the withholding of information relating to the financial aspects of the agreement with PERSON and the fact that the witnesses had been excused from answering certain questions in spite of the condition in the agreements that they would not invoke their right to remain silent . The defence further alleged that the prosecution had acted in bad faith and had tried to mislead both the defence and the judges on several occasions .","In a judgment of DATE ORG quashed ORG decision , convicted the applicant on all charges and sentenced him to DATE and CARDINAL months\u2019 imprisonment and a fine of NLG CARDINAL ( EUR CARDINAL ) .","The judgment contained a lengthy legal analysis of the compatibility of the agreements concluded between the public prosecution service and the witnesses PERSON and GPE with GPE law , the political developments on this issue , the principles of proper conduct of proceedings and the requirements of LAW . ORG concluded that the agreements were permissible and lawful except for the undertaking made to PERSON to the effect that he would not have to serve a possible prison sentence . The ORG considered :","\u201c The public prosecution service is free to make decisions about the investigation and prosecution of criminal offences , including the giving of an undertaking to demand that a certain penalty be imposed . The public prosecution service is not free to assume the authority that any penalty which might be imposed on PERSON by a judge would not have to be executed ... The decision to include this undertaking in the agreement with PERSON is thus ... not lawful . This unlawfulness ... however , is not of such a nature that the prosecution case against the applicant should be declared inadmissible . The present criminal proceedings are characterised by the fact that , for the first time , the conclusion of agreements with co - suspects has been submitted for the full consideration of a judge . No plausible grounds have been made out for concluding that the public prosecution service acted in bad faith , and thus intentionally breached the law , merely in order to frustrate the interests of the integrity of criminal proceedings . Nor have plausible grounds been made for concluding that the public prosecution service entered into the impugned undertaking with the purpose of acting in contempt of the decision of the judge in the present case . \u201d","Although it decided that the prosecution of the applicant was not barred , ORG considered that the unlawful undertaking made to PERSON was one of the factors which should lead to a reduction of his sentence from the CARDINAL years\u2019 imprisonment it would have imposed , to DATE . ORG considered that the remainder of the agreements was permissible under GPE law and that the conclusion of the agreements had neither violated the principles of the proper conduct of proceedings nor the applicant \u2019s right to a fair trial . It proceeded to examine whether the statements of ORG could be used in evidence :","\u201c The extent to which the statements of ORG may be used in evidence nevertheless requires further examination . It has to be examined whether ORG made their statements in the absence of pressure or constraint . Partly in view of the agreements underlying the statements , consideration should also be given to the question whether the defence had the opportunity adequately to scrutinise the statements of ORG","Such further examination is also necessary because the reliability and credibility of the statements of ORG may have been adversely affected by what they felt obliged to do or by what they deemed was in their own best interests , given the contents of the agreements with the public prosecution service . In addition , it should be borne in mind that these witnesses stand accused of offences relating to more or less the same set of facts as the defendant . \u201d","Accordingly , ORG went on to examine closely the reliability of ORG and the credibility of their statements . In this context , it had regard to the position and personality of both PERSON , the possibilities which the defence had had to examine their statements , the contents of these statements , the other evidence , the impression both witnesses had given the court as well as the applicant \u2019s response to ORG and PERSON \u2019s statements . ORG considered that their statements were detailed and disclosed concrete reasons for their knowledge . Although ORG did not know each other , their statements corresponded and were corroborated by the statements of CARDINAL other witnesses as well as by other evidence . ORG also considered that the applicant had not submitted any facts to challenge the statements of ORG these considerations into account , and stating explicitly that this matter had to be treated with particular caution ( bijzondere behoedzaamheid ) , ORG found that the statements made by ORG were reliable and credible .","ORG further considered :","\u201c [ The ] principles of the proper conduct of proceedings imply above all that the defence , confronted with an agreement concluded by the public prosecution service with a witness , be given complete disclosure \u2013 with a view to the exercise of the rights of the defence \u2013 about the existence of the agreements , the manner of their conclusion as well as their contents , and also that the defence be given every opportunity to challenge the manner of conclusion and the contents of the agreements .","These requirements have been completely met . The existence of the agreements and the identity of ORG were disclosed from the outset . The agreements were put down in writing and were included in the case file together with all relevant documents . In the presence of the defence , ORG have been questioned as witnesses on this issue at every stage of the proceedings , and [ the prosecutors ] T. and PERSON have been questioned about it at the trial on appeal . It has appeared that no relevant difference of opinion exists between the prosecutors and ORG about the meaning of the agreements and the way in which they were concluded . Even apart from that , the defence has been enabled to obtain all necessary information concerning the agreements . \u201d","With regard to the complaint that information about the negotiations between the public prosecution service and PERSON \u2019s lawyer concerning the financial aspects of the agreement had initially been withheld , ORG considered that the applicant had been able to raise this issue both before ORG and ORG and to have it examined fully : part of the correspondence between the public prosecution service and PERSON had been added to the case file and counsel for the defence had been able to question PERSON , PERSON and the public prosecutors PERSON and CARDINAL on this issue . The allegation that the prosecution had intentionally misrepresented the amount of the financial reward promised to PERSON as well as the contents of the negotiations was dismissed as being implausible .","ORG further dismissed as unfounded a number of other accusations made by the defence to the effect that the public prosecution service had intentionally violated the rights of the applicant . It convicted and sentenced the applicant as set out above . Apart from the statements made by ORG , ORG also relied on the statements of CARDINAL other witnesses , financial documents , several official reports of police officers and the results of the examination of samples of drugs .","The applicant lodged an appeal on points of law with ORG ( PERSON ) , submitting an extensive statement of grounds of appeal .","ORG gave judgment on DATE . It dismissed the appeal in its entirety .","In response to CARDINAL complaints concerning the contents and conclusion of the agreements with ORG , and with reference to its own case - law ( decision of CARDINAL DATE , PERSON Netherlands Law Reports DATE , no . CARDINAL ) and to a number of Commission decisions ( X. v. GPE , no . DATE , Commission decision of DATE , ORG and Reports CARDINAL , p. CARDINAL ; ORG v. GPE , no . ORG decision of DATE , unreported ; and PERSON v. the GPE , no . ORG decision of CARDINAL DATE , unreported ) , ORG reiterated that , as long as the conclusion of agreements was not regulated by law , the question to be examined was whether the actual circumstances of every case were compatible with the fundamental rights of an accused as guaranteed by LAW and with the principles of the proper conduct of proceedings derived from , inter alia , LAW . Noting that the reliability of statements of a suspect in exchange for promises by the prosecution may be adversely affected by what a witness feels obliged to do or by what he or she deems to be in their own best interest , it considered that this kind of witness should be questioned by a judge , preferably in open court , and , where the credibility of a witness was challenged , it should appear clearly from the trial courts\u2019 judgments that this issue had been examined .","ORG upheld the decisions of ORG regarding the agreements and dismissed CARDINAL other complaints , adopting mainly summary reasoning .","In DATE serious concerns arose over the methods of criminal investigation used in cases concerning organised crime . A parliamentary commission of inquiry ( parlementaire enqu\u00eatecommissie ) was instituted , which presented its final report on DATE . In this report agreements concluded with suspects testifying against co - accused were criticised . The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution . The Minister of ORG subscribed to this opinion and legislation is now under preparation to regulate agreements with criminal witnesses .","LAW ) , insofar as relevant , provides that a suspect is not obliged to reply to questions put to him or her by a judge or investigating officer .","Article CARDINAL of the Code of Criminal Procedure provides that a witness is allowed to refrain from answering questions if replying to those questions would expose him or her to the risk of a criminal conviction ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76586","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2006,"docname":"WEBER AND SARAVIA v. GERMANY","importance":1,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The first applicant , PERSON , is a NORP national . The second applicant , Mr PERSON , is a NORP national . Both applicants live in GPE ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE , and by PERSON PERSON , a university professor in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agents , PERSON , ORG , and , subsequently , PERSON , PERSON , of ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","The case concerns several provisions of the Law of CARDINAL DATE on restrictions on the secrecy of mail , post and telecommunications ( Gesetz PERSON Brief- , Post- PERSON ) , also called \u201c the G CARDINAL Act \u201d , as modified by LAW of DATE ( Verbrechensbek\u00e4mpfungsgesetz ) .","It notably concerns the extension of the powers of ORG ( PERSON ) with regard to the recording of telecommunications in the course of so - called strategic monitoring , as well as the use ( PERSON ) of personal data obtained thereby and their transmission to other authorities . Strategic monitoring is aimed at collecting information by intercepting telecommunications in order to identify and avert serious dangers facing GPE , such as an armed attack on its territory or the commission of international terrorist attacks and certain other serious offences ( see \u201c Relevant domestic law and practice \u201d below , paragraphs CARDINAL et seq . ) . In contrast , so - called individual monitoring , that is , the interception of telecommunications of specific persons , serves to avert or investigate certain grave offences which the persons monitored are suspected of planning or having committed .","The first applicant is a freelance journalist who works for various NORP and foreign newspapers , radio and television stations on a regular basis . In particular , she investigates matters that are subject to the surveillance of ORG , notably armaments , preparations for war , drug and arms trafficking and money laundering . In order to carry out her investigations , she regularly travels to different countries in LOC and LOC and LOC , where she also meets the persons she wants to interview .","The second applicant , an employee of ORG , submitted that he took messages for the first applicant when she was on assignments , both from her telephone and from his own telephone . He then transmitted these messages to wherever she was .","On DATE the applicants lodged a constitutional complaint with ORG .","They alleged that certain provisions of LAW amending LAW disregarded their fundamental rights , notably the right to secrecy of telecommunications ( LAW , the right to self - determination in the sphere of information ( LAW and CARDINAL \u00a7 CARDINAL of LAW ) , freedom of the press ( LAW ) and the right to effective recourse to the courts ( LAW ) .","In the ORG submission , technological progress had made it possible to intercept telecommunications everywhere in the world and to collect personal data . Numerous telecommunications could be monitored , in the absence of any concrete suspicions , with the aid of catchwords which remained secret . Strategic monitoring could then be used in respect of individuals , preventing the press from carrying out effective investigations into sensitive areas covered by the LAW .","ORG , having held a hearing , delivered its judgment on DATE ( running to CARDINAL pages ) . It found that the constitutional complaint lodged by the second applicant was inadmissible . The court noted that a constitutional complaint could be lodged directly against a statute if the person concerned could not know whether there had actually been an implementing measure applying the statute to him or her . The complainant , however , had to substantiate sufficiently his or her argument that his or her fundamental rights were likely to be breached by measures taken on the basis of the impugned statute .","ORG noted that it was irrelevant that the applicants did not reside in GPE , because the impugned provisions were aimed at monitoring international telecommunications . However , it held that , unlike the first applicant , the second applicant had failed to substantiate sufficiently his claim that his rights under LAW were likely to be interfered with by measures based on the impugned provisions of the amended LAW . In the absence of any further details , the mere fact that he dealt with the first applicant \u2019s telecommunications in her absence was not sufficient to demonstrate this .","NORP Partly allowing the first applicant \u2019s constitutional complaint , ORG held that certain provisions of LAW were incompatible or only partly compatible with the principles laid down in LAW ( see \u201c Relevant domestic law and practice \u201d below , paragraphs CARDINAL et seq . ) . In particular , section CARDINAL(CARDINAL ) , first and second sentence , point CARDINAL , section CARDINAL(CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , first sentence , ( CARDINAL ) , first sentence , ( CARDINAL) , second sentence , and section CARDINAL(CARDINAL ) , third sentence , of the LAW were found to be incompatible with LAW ( see paragraphs CARDINAL et seq . below ) . It fixed a deadline of DATE for the legislature to bring the situation into line with the LAW .","On DATE a new version of the G CARDINAL Act came into force ( BGBl . I DATE , pp . CARDINAL , CARDINAL ) and MONEY in its version as amended by LAW of DATE ceased to apply .","The Basic PERSON provides for the following fundamental rights , in so far as relevant :","\u201c ( CARDINAL ) Everyone shall have the right freely to express and disseminate his opinions in speech , writing and pictures and to obtain freely information from generally accessible sources . Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed . There shall be no censorship .","( CARDINAL ) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour . \u201d","\u201c ( CARDINAL ) Secrecy of mail , post and telecommunications shall be inviolable .","( CARDINAL ) ORG may be ordered only pursuant to a statute . Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the GPE or of a Land , the statute may provide that the person concerned shall not be notified of the restriction and that review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people \u2019s elected representatives . \u201d","\u201c ...","( CARDINAL ) If a person \u2019s rights are violated by a public authority , he may have recourse to the courts . If no other jurisdiction has been established , the civil courts shall have jurisdiction . LAW , second sentence , remains unaffected by this paragraph . \u201d","The separation of legislative powers between the Federation and the ORG is laid down in Articles CARDINAL et seq . of LAW . Pursuant to LAW , in principle , have the right to legislate in so far as LAW does not confer legislative power on the Federation . Such legislative power is conferred on the Federation , in particular , in LAW :","\u201c The Federation shall have exclusive power to legislate [ ausschlie\u00dfliche PERSON ] on :","NORP foreign affairs and defence , including the protection of civilians ;","... \u201d","Being the statute envisaged by LAW , second sentence , of LAW ( cited above , paragraph CARDINAL ) , which provides for exceptions to the general rule of inviolability of telecommunications , the LAW DATE on restrictions on the secrecy of mail , post and telecommunications ( Gesetz PERSON Brief- , Post- PERSON ) , also called \u201c the G CARDINAL Act \u201d , lays down the conditions under which the authorities may introduce the restrictions referred to in that provision of LAW .","In a judgment delivered on DATE ( PERSON and Others v. GPE , Series A no . CARDINAL ) , the ORG held that the provisions of the G CARDINAL Act of CARDINAL DATE , in its original version and as regards the monitoring of individuals , did not contravene the Convention . It found that the NORP legislature was justified in considering that the interference resulting from the legislation in question with the rights guaranteed by LAW was necessary in a NORP society within the meaning of paragraph CARDINAL of that Article . The ORG also considered that the remedies provided for in the G CARDINAL Act complied with the requirements of LAW .","LAW of DATE on the fight against crime amended the G CARDINAL Act . Among other things , it extended the range of subjects in respect of which \u201c strategic monitoring \u201d ( as opposed to monitoring of individuals ) could be carried out . In the original version of LAW , such monitoring was permitted only in order to detect and avert the danger of an armed attack on GPE and at that time was therefore merely focused on the GPE belonging to ORG . Furthermore , owing to technical progress it had become possible to identify the telephone connections ( ORG ) involved in an intercepted telecommunication .","Pursuant to the provisions of the G CARDINAL Act which either remained unchanged by LAW or were not contested in the present case , ORG the Federation and the L\u00e4nder ( Verfassungsschutzbeh\u00f6rden des Bundes und der L\u00e4nder ) , ORG ( PERSON ) and ORG were entitled to monitor and record telecommunications within their own sphere of activities ( section CARDINAL(CARDINAL ) of the G CARDINAL Act ) . Monitoring of individuals was limited to serious threats to national security ( for example , high treason or threatening the democratic order ) and was permissible only if less intrusive means of investigation had no prospect of success or were considerably more difficult ( section CARDINAL of the G CARDINAL Act ) . As to strategic monitoring , only the head of ORG or his deputy were entitled to lodge an application for a surveillance order . The application had to be lodged in writing , had to describe and give reasons for the nature , scope and duration of the measure and had to explain that other means of carrying out the investigations either had no prospect of success or were considerably more difficult ( section CARDINAL of the G CARDINAL Act ) .","Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister assigned by the Chancellor or the highest authority of the L\u00e4nder ( in respect of applications by their Offices for ORG ) . The order was made in writing and specified the exact nature , scope and duration of the monitoring measure . The duration of the measure was to be limited to a maximum of DATE ; the execution of the measure could be prolonged for a maximum of DATE at a time as long as the statutory conditions for the order were met ( see section CARDINAL of the G CARDINAL Act ) .","The monitoring measures authorised were to be carried out under the responsibility of the requesting authority and under the supervision of a staff member qualified to hold judicial office . Monitoring had to be discontinued immediately if the conditions of the monitoring order were no longer met or the measure was no longer necessary ( section CARDINAL of the G CARDINAL Act ) .","Section CARDINAL(CARDINAL ) provided that ORG was to verify whether the personal data obtained by measures taken under subsection CARDINAL of section CARDINAL were necessary to pursue the aims laid down in that subsection .","ORG found that in its present version section CARDINAL(CARDINAL ) was incompatible with LAW , second sentence , of LAW . It found that the provision did not contain sufficient safeguards to guarantee that personal data which were not destroyed or deleted as being unnecessary for the purposes of ORG would be used only for the purposes which had justified their collection . Furthermore , the provision also failed to comply with the identification requirements flowing from LAW . In addition , there were insufficient safeguards to guarantee that ORG would only use such data as were relevant for the dangers listed in section CARDINAL(CARDINAL ) . Such safeguards should also ensure that ORG would take into account the important concerns of nondisclosure of sources and confidentiality of editorial work as protected by the freedom of the press under LAW . The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) was to be applied only if the data were specially marked and were not used for purposes other than those listed in section MONEY ) .","Monitoring measures were supervised by CARDINAL bodies , ORG and the so - called ORG ( see section CARDINAL of the G CARDINAL Act ) . At the relevant time , ORG consisted of CARDINAL members of parliament , including representatives of the opposition . The Federal Minister authorising monitoring measures had to inform the board DATE about the implementation of the G CARDINAL Act ( section CARDINAL(CARDINAL ) of the G CARDINAL Act ) .","The G CARDINAL Commission consisted of a president who was qualified to hold judicial office and CARDINAL additional members who were appointed by ORG for the duration of CARDINAL legislative term and who were independent in the exercise of their functions ( see section ORG ) of the G CARDINAL Act ) . The Federal Minister authorising surveillance measures had to inform the ORG DATE about planned monitoring measures and had to obtain its consent ( section CARDINAL(CARDINAL ) of the G CARDINAL Act ; see paragraphs CARDINAL below ) . Moreover , the Federal Minister had to inform the Commission whether or not persons concerned by such measures had been notified of them . If the Commission decided that notification was necessary , the Federal Minister had to arrange for it to be given without undue delay ( section CARDINAL(CARDINAL ) of MONEY ) .","Section CARDINAL(CARDINAL ) , points CARDINAL and CARDINAL , in conjunction with section CARDINAL ) , first and second sentence , authorised the monitoring of wireless telecommunications , that is , telecommunications which were not effected via fixed telephone lines , but , for example , via satellite connections ( PERSON nicht leitungsgebundener Fernmeldeverkehrsbeziehungen ) .","Section CARDINAL(CARDINAL ) , first sentence , provided that restrictions on the secrecy of telecommunications could be ordered by the competent Federal Minister with the approval of ORG , on an application by ORG , for international wireless telecommunications . Under the second sentence of that provision , such restrictions were permitted only in order to collect information about which knowledge was necessary for the timely identification and avoidance of certain dangers , namely :","( CARDINAL ) an armed attack on GPE ;","( CARDINAL ) the commission of international terrorist attacks in GPE ;","( CARDINAL ) international arms trafficking within the meaning of ORG and prohibited external trade in goods , data - processing programmes and technologies in cases of considerable importance ;","( CARDINAL ) the illegal importation of drugs in substantial quantities into the territory of GPE ;","( CARDINAL ) the counterfeiting of money ( GPE ) committed abroad ;","( CARDINAL ) the laundering of money in the context of the acts listed under points CARDINAL to CARDINAL .","Pursuant to section CARDINAL(CARDINAL ) , third sentence , restrictions on the secrecy of telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in order to identify and avert the dangers listed in section PERSON ) , second sentence , point CARDINAL .","ORG found that , pursuant to LAW , point CARDINAL , of LAW ( see paragraph CARDINAL above ) , the federal legislature had exclusive legislative power to regulate the matters listed in section CARDINAL(CARDINAL ) of the amended LAW , as they concerned foreign affairs .","NORP However , ORG took the view that allowing the monitoring of telecommunications in order to prevent the counterfeiting of money abroad , in accordance with point CARDINAL of section CARDINAL ) in its present wording , constituted a disproportionate interference with the secrecy of telecommunications as protected by LAW . It argued that this danger as such could not be considered to be as serious as an armed attack on ORG or any of the other dangers listed in section CARDINAL(CARDINAL ) . The counterfeiting of money should therefore be included in section CARDINAL(CARDINAL ) only if it was restricted to cases in which it threatened the monetary stability of GPE . The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) , second sentence , point CARDINAL , was to be applied only if the counterfeiting of money abroad threatened monetary stability in GPE .","In practice , wireless telecommunications ( as opposed to telecommunications via fixed telephone lines ) comprised some CARDINAL per cent of the total volume of telecommunications at the relevant time . However , given technical progress , the volume of such telecommunications was expected to rise in the future .","Technically , telecommunications via satellite links ( with the satellites being positioned QUANTITY above the equator ) could be intercepted from sites in GPE if the signal reflected by the satellite ( the \u201c downlink \u201d ) covered the area in which the station was located . The area covered by the satellite beam depended on the satellite technology used . Whereas signals downlinked by older satellites often \u201c beamed \u201d across onethird of the LOC \u2019s surface , more modern satellites could concentrate their downlink on smaller areas . Signals could be intercepted everywhere within the area covered by the beam . International radio relay links ( PERSON ) could be intercepted from interception sites on NORP soil only if the radio relay transmission was effected within close proximity of these sites .","Pursuant to section CARDINAL(CARDINAL ) , ORG was only authorised to carry out monitoring measures with the aid of catchwords ( ORG ) which served , and were suitable for , the investigation of the dangers described in the monitoring order ( first sentence ) . The second sentence of that provision prohibited the catchwords from containing distinguishing features ( ORG ) allowing the interception of specific telecommunications . However , this rule did not apply to telephone connections situated abroad if it could be ruled out that connections concerning NORP nationals or NORP companies were deliberately being monitored ( third sentence ) . The catchwords had to be listed in the monitoring order ( fourth sentence ) . The execution of the monitoring process as such had to be recorded in TIME by technical means and was subject to supervision by ORG ( fifth sentence ) . The data contained in these minutes could be used only for the purposes of reviewing data protection and had to be deleted at DATE following their recording ( sixth and seventh sentences ) .","Section CARDINAL(CARDINAL ) , first sentence , provided that personal data ( personenbezogene ORG ) obtained through the interception of telecommunications could only serve the prevention , investigation and prosecution of offences listed in LAW and in certain other provisions , notably of LAW . These offences included , in particular , high treason against the peace or security of the ORG , crimes threatening the democratic order , the external security of the ORG or the security of the allied forces based in GPE , the formation of terrorist associations , murder , manslaughter , robbery , the forgery of payment cards or cheques , fraud relating to economic subsidies , infiltration of foreigners and the production , importation and trafficking of illegal drugs . Personal data thus obtained could be used only if the person concerned was either subject to individual monitoring under LAW or if there were factual indications ( tats\u00e4chliche PERSON ) for suspecting a person of planning , committing or having committed one of the offences mentioned above . This catalogue of offences for the investigation of which knowledge obtained by strategic monitoring could be used was considerably enlarged by the amendment of MONEY in issue .","Pursuant to section CARDINAL(CARDINAL ) , second sentence , the obligation on ORG to inform ORG of its findings obtained by strategic monitoring , including personal data , under section CARDINAL of ORG remained unaffected .","ORG found that section CARDINAL(CARDINAL ) , second sentence , in its present version , failed to comply with ORG CARDINAL and CARDINAL \u00a7 CARDINAL , second sentence , of LAW . The provision did not contain sufficient safeguards to guarantee that the duty of ORG to report to ORG , which included the transmission of personal data , would be performed solely for the purposes which had justified the collection of the data ( GPE ) . Furthermore , the provision failed to comply with the identification requirements ( NORP ) flowing from LAW . Ensuring that personal data were not used for illegal purposes was possible only if it remained discernible that the data concerned had been obtained by means of an interference with the secrecy of telecommunications . Likewise , there were no safeguards ensuring that ORG did not keep or use the personal data transmitted to them for purposes other than those listed in section CARDINAL(CARDINAL ) . The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) , second sentence , was to be applied only if the personal data contained in the report to ORG were marked and remained bound up with the purposes which had justified their collection .","Section CARDINAL(CARDINAL ) , first sentence , provided that the data obtained in the circumstances described in subsection CARDINAL of section CARDINAL had to be transmitted to the Offices for the Protection of the LAW and of the L\u00e4nder , to ORG , to ORG ( GPE ) , to the public ORG offices and to certain police services for the purposes laid down in subsection CARDINAL of section CARDINAL in so far as this was necessary for the recipient authorities to carry out their duties .","Pursuant to section CARDINAL(CARDINAL ) , second sentence , the decision to transmit data was to be taken by a staff member who was qualified to hold judicial office .","ORG found that the federal legislature \u2019s exclusive legislative power under LAW , point CARDINAL , of LAW ( see paragraph CARDINAL above ) to regulate matters concerning foreign affairs also covered the transmission to other authorities of information obtained by ORG in the performance of its tasks as provided for in section CARDINAL(CARDINAL ) of the amended LAW . The federal legislature merely had to provide guarantees that the further use of the data did not disregard the primary function of the monitoring measures .","The Federal Constitutional Court further found that section CARDINAL(CARDINAL ) was not fully compatible with ORG CARDINAL and CARDINAL \u00a7 CARDINAL , second sentence , of LAW . It held that LAW did not prohibit the transmission to the authorities listed in section CARDINAL(CARDINAL ) , first sentence , of information which was relevant for the prevention and investigation of criminal offences . This finding was not called into question by the fact that the initial collection of data by means of the random interception of telecommunications in order to prevent or investigate offences , without any prior suspicion of a specific offence being planned or having been committed , would breach LAW .","NORP However , in the opinion of ORG , the transmission of data under section CARDINAL(CARDINAL ) , first sentence , in its present version , disproportionately interfered with the right to secrecy of telecommunications and freedom of the press . The transmission of data constituted a further serious interference with the secrecy of telecommunications , because criminal investigations could be instituted against persons concerned by the interception of telecommunications which had been carried out without any prior suspicion of an offence . Consequently , such transmission was proportionate only if it served the protection of an important legal interest and if there was a sufficient factual basis for the suspicion that criminal offences were being planned or had been committed .","Section CARDINAL(CARDINAL ) , first sentence , read in conjunction with section CARDINAL(CARDINAL ) , did not fully comply with these requirements .","The catalogue of offences in respect of which the transmission of data was permitted also included less serious offences such as fraud relating to economic subsidies . Moreover , the impugned provision authorised the transmission of data in cases in which there were merely factual indications for the suspicion that one of the offences listed in that provision had been committed or was even only being planned . The transmission of data for the investigation of an offence which had already been committed was to be authorised only if the factual basis for the transmission was the same as that required by LAW . Article LAW provided , however , that interferences with the secrecy of telecommunications in order to investigate crimes required the presence of specific facts \u2013 as opposed to mere factual indications \u2013 warranting the suspicion that the person concerned had committed an offence listed in that provision . As regards the transmission of data for the prevention of crime , the combination of the following elements led to a disproportionate interference with the fundamental rights affected : the fact that mere factual indications were sufficient , that the mere planning of an offence could suffice , and that transmission could also be justified in the case of less serious offences .","The Federal Constitutional Court further found that section CARDINAL(CARDINAL ) , second sentence , was likewise not compatible with the right to secrecy of telecommunications . It considered it unnecessary to entrust the decision on transmission of data to an independent body . However , there was no requirement to record in TIME the transmission or the destruction or deletion of the data . This rendered effective supervision of the transmission of the data impossible .","ORG ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) , first sentence , could be applied provided that data were only transmitted if specific facts aroused the suspicion that offences listed in section CARDINAL(CARDINAL ) had been committed . Furthermore , the transmission had to be recorded in TIME .","Section CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) regulated the procedure for destruction of the data obtained by strategic monitoring .","Section CARDINAL(CARDINAL ) provided that if the data obtained in the circumstances set out in section CARDINAL(CARDINAL ) were no longer necessary to achieve the purposes listed in that provision and if they did not have to be transmitted to other authorities pursuant to section CARDINAL(CARDINAL ) , they had to be destroyed and deleted from the files under the supervision of a staff member who was qualified to hold judicial office ( first sentence ) . The destruction and deletion had to be recorded in TIME ( second sentence ) . It was necessary to verify DATE whether the conditions for destruction or deletion were met ( third sentence ) .","Section CARDINAL(CARDINAL ) provided that the recipient authorities were likewise to verify whether they needed the data transmitted to them in order to achieve the aims laid down in section CARDINAL(CARDINAL ) ( first sentence ) . If this was not the case , they also had to destroy the data immediately ( second sentence ) . The destruction could be dispensed with if separation of the data from other information which was necessary for the fulfilment of the tasks set was impossible or could only be carried out through unjustifiable effort ; the use of such data was prohibited ( third sentence ) .","Section CARDINAL(CARDINAL ) , first sentence , provided that personal data obtained by means of monitoring measures pursuant to sections CARDINAL and CARDINAL about a person involved in the telecommunications monitored had to be destroyed if they were no longer necessary for the purposes listed in the LAW and could no longer be of significance for an examination by the courts of the legality of the measure . The destruction had to be carried out under the supervision of a person qualified to hold judicial office . Pursuant to section DATE ) , second sentence , the destruction had to be recorded in TIME . It was necessary to examine DATE whether personal data obtained could be destroyed ( third sentence ) . Access to data which were merely kept for the purpose of judicial review of the monitoring measure had to be blocked ( fourth sentence ) . They could only be used for that purpose ( fifth sentence ) .","ORG found that the provisions on the destruction of data laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) , second and third sentences , and section DATE ) complied with LAW . The provisions had , however , to be interpreted so as not to frustrate judicial review of monitoring measures . This meant that data could only be destroyed DATE after the person concerned had been notified that monitoring measures had been taken .","NORP However , ORG considered section CARDINAL(CARDINAL ) to be incompatible with LAW . It was necessary for the recipient authorities to mark the data as having been obtained by means of the interception of telecommunications . Otherwise , following verification that the information obtained was relevant for the tasks of the authorities concerned , personal data could be saved in a manner which made it impossible to identify them as resulting from the strategic monitoring of telecommunications . The restrictions on the permitted use of these data pursuant to section CARDINAL(CARDINAL ) would thereby be undermined . The court ruled that , pending the entry into force of legislation in compliance with LAW , section CARDINAL(CARDINAL ) could be applied provided that the data were marked as described .","Section CARDINAL(CARDINAL ) , first sentence , provided that ORG or the recipient authorities had to inform the persons monitored about the restriction imposed on the secrecy of telecommunications as soon as such notification could occur without jeopardising the achievement of the aim pursued by the restriction and the use of the data . Pursuant to section CARDINAL(CARDINAL ) , second sentence , no notification was given if the data obtained had been destroyed within DATE after their receipt by ORG or the recipient authorities .","ORG considered the restriction on the duty of notification as such , as laid down in section CARDINAL(CARDINAL ) , first sentence , to be compatible with LAW . By virtue of LAW , first and second sentences , taken in conjunction with LAW , third sentence , of LAW , no notification had to be given if this served to protect ORG or its democratic order or if disclosure of the information obtained or the methods used to this end threatened the fulfilment of the tasks of the authorities concerned .","NORP However , section CARDINAL(CARDINAL ) , second sentence , violated Articles CARDINAL and CARDINAL of LAW . There were no safeguards precluding the data from being used before their destruction within DATE . The mere destruction of the data within DATE did not , however , justify dispensing with the duty of notification irrespective of the prior use of the data .","The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) could be applied provided that the data had not been used before their destruction .","Section CARDINAL(CARDINAL ) provided for supervision of the monitoring measures by an independent body , the so - called ORG .","Pursuant to section CARDINAL(CARDINAL ) , first sentence , the competent Federal Minister was to inform ORG on a DATE basis about the measures he had ordered to restrict the secrecy of telecommunications before such measures were implemented .","The Federal Minister could , however , order the execution of the measure before informing ORG if there was a risk that a delay might frustrate the purpose of the measure ( second sentence of section MONEY ) ) . The ORG gave a decision of its own motion or further to complaints contesting the legality and necessity of monitoring measures ( third sentence ) . Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately revoked by the Minister ( fourth sentence ) .","ORG considered that section CARDINAL(CARDINAL ) , in its present wording , was incompatible with LAW . It failed to provide in a sufficiently clear manner that supervision by ORG covered the whole process of obtaining and using the data ( including measures taken under section CARDINAL(CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL) ) , and not only the monitoring orders by the competent Minister . The court ruled that , pending the entry into force of legislation in compliance with the LAW , the provision in question was only to be applied if the ORG \u2019s supervisory powers extended to measures taken under section CARDINAL(CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL) .","Section CARDINAL(CARDINAL ) excluded the possibility of judicial review in the case of monitoring measures ordered and executed to prevent an armed attack on the territory of GPE within the meaning of section MONEY ) , second sentence , point CARDINAL .","Pursuant to section CARDINAL(CARDINAL ) of the G CARDINAL Act , which remained unchanged in substance , the person concerned had to be notified of measures restricting the secrecy of telecommunications as soon as these measures were discontinued , provided that such notification did not jeopardise the purpose of the restriction ( first and second sentence ) . After notification , the person concerned could have recourse to the courts ; section CARDINAL(CARDINAL ) did not apply ( third sentence ) .","The Federal Constitutional Court found that section ORG ) constituted a justified restriction on the secrecy of telecommunications in accordance with LAW , second sentence , of LAW . Moreover , a person concerned by a monitoring measure could have recourse to the courts following notification of the restriction under section CARDINAL(CARDINAL ) , third sentence , of MONEY . The same applied if the person concerned had learned of the monitoring measure by another means , without having been notified .","A new version of LAW , which takes into account the principles laid down by ORG in its judgment of DATE , came into force on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88758","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2008,"docname":"CASE OF ECOPREVENT KFT. v. HUNGARY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant is a limited liability company , founded in DATE , with its seat in GPE .","On DATE its predecessor ( see paragraph CARDINAL above ) requested ORG to issue an order for payment against another company .","The court ordered the respondent to make a payment of MONEY ( MONEY ( ORG ) ) . Since the latter contested the order , on DATE the proceedings became litigation .","After having held QUANTITY hearings , ORG found for the plaintiff in DATE . On appeal , ORG quashed this decision in DATE and remitted the case to the first - instance court .","DATE and DATE the proceedings were stayed , pending the plaintiff \u2019s identifying the respondent \u2019s legal successor . After the latter had finally entered the proceedings , a procedural dispute evolved , at the end of which , apparently in DATE , ORG noted that , since the original respondent had ceased to exist on DATE , the proceedings had been interrupted on that date . Thus , all the actions of the parties and all the decisions delivered by the courts after that date were invalid .","Eventually , in DATE ORG ordered the resumption of the proceedings and transferred the case to ORG , which had acquired jurisdiction to hear the case due to an amendment to LAW .","On DATE ORG allowed the applicant company to replace the original plaintiff .","On DATE ORG found for the applicant company . None of the parties appealed and the decision became final on DATE ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98778","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF GALAT v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in the town of GPE , GPE .","At the material time the applicant worked as an accountant at the ORG company .","In DATE the authorities revealed a shortfall of CARDINAL NORP hryvnyas ( ORG ) in the PERSON accounts . On DATE the local police instituted criminal proceedings against the applicant for embezzlement of ORG funds . On DATE criminal proceedings for forgery and negligence were also instituted .","On DATE criminal proceedings against PERSON were instituted in connection with the same episode of embezzlement . On DATE criminal proceedings against the applicant and PERSON were joined .","On DATE the applicant gave a written undertaking not to abscond .","The criminal proceedings against PERSON were terminated on DATE .","On DATE the applicant 's case was sent to the court .","On DATE ORG found the applicant guilty of embezzlement of ORG funds and sentenced her to DATE imprisonment . The court also ordered confiscation of any property belonging to the applicant .","On DATE the applicant was imprisoned .","On DATE ORG ( since DATE the ORG ) quashed this judgment and remitted the case for additional investigation .","On DATE the applicant was released .","In the course of the investigation several expert reports on handwriting , accountancy and technical criminal questions were submitted .","By DATE the additional investigation was completed and the case was transferred to the court .","On DATE ORG found the applicant guilty of embezzlement and sentenced her to DATE imprisonment . The court also disqualified the applicant from holding positions of financial responsibility for DATE and ordered confiscation of any property belonging to her .","On DATE the NORP ORG of Appeal reduced the applicant 's sentence to DATE and DATE imprisonment .","On DATE ORG of GPE lifted the DATE disqualification from holding positions of financial responsibility and upheld the remainder of the decisions of DATE and CARDINAL DATE .","Subsequently the applicant requested ORG of GPE to review the case under the extraordinary review procedure but to no avail ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109189","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2012,"docname":"CASE OF TU\u015eALP v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Isabelle Berro-Lef\u00e8vre;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE . He is a journalist \/ columnist and author of a number of books .","On DATE a DATE newspaper ORG published an article entitled \u201c Stability \u201d written by the applicant . The article read as follows :","\u201c Stability ... has lost its dictionary meaning and become a sickening word . From the Prime Minister to ministers , all statesmen and politicians keep on repeating it ... it is used as a protective shield for \u2018 robbery and profiteering\u2019 . By mentioning stability at every opportunity some want to pave the way for a \u2018 religion based regime\u2019 . In sum , \u2018 the key word of the moderate regime\u2019 that the Prime Minister and his men have set their minds on is primarily \u2018 ORG .","In longing for a society that does n\u2019t speak up or interfere , the stability in command sacrifices justice , rights and freedoms , independence , equality , modernity , participation , pluralism and legal order . The rest is not needed , they settle for stability in government .","No one should be concerned . Stability is continuing . The Prime Minister and his men are continuing to be stable in creating their absurdities . They can not reconcile modern law with the NORP law imprinted in their brains at puberty . Stability is continuing . The Prime Minister and his men are continuing to be stable in swearing . Do n\u2019t be anxious .","Stability has a special meaning for the Prime Minister . The Prime Minister , forgetting which chair he occupies , shows on every occasion what a master denouncer he is . He who just DATE was denouncing GPE to the outside world for the headscarf of his wife and daughter , DATE makes up a crime and denounces those who support Prof . PERSON of the Van CARDINAL y\u0131l University . Outside he incites GPE for whom he is a civil servant and inside his civil servants \u2018 the ORG .","Whether you like it or not stability is continuing . Every word that comes out of his mouth shocks , even if denied and corrected . The act of looking you in the eye and lying is considered as governing the country . DATE he says there are no convictions under LAW two journalists are convicted under it . And when he reopened ORG DATE after it had become operational or when he cut the ribbon once again DATE at ORG neither he nor his men blushed .","Stability is continuing . The man is lying about matters from national income to inflation to the budget . Do n\u2019t believe it . Stability is continuing . From teachers to judges , from prosecutors to the police , from imams to doctors , the man uses these posts like the property of his own party . Do n\u2019t be angry .","In respect of the Minister of the ORG and the Minister of ORG , who are both defendants in the proceedings concerning the embezzlement of MONEY from ORG , the Minister of ORG , PERSON , states that they will be acquitted . This is not considered as interfering with the judiciary . PERSON says he thinks PERSON will not be punished . This is not considered as interfering with the judiciary . But he is able to denounce at the meeting of ORG those requesting justice for rector PERSON . He does not know what crime or punishment are . He does n\u2019t read , he does n\u2019t learn . He is content with what entered his head at ORG when he was DATE .","They think that we have forgotten the fact that even on DATE of the ORG government there were ministers accused of corruption . No one seems to care that those against whom criminal proceedings were brought for corruption , namely PERSON , PERSON , ORG , PERSON and PERSON , entered the ORG and subsequently became part of Government .","For whatever reason , the fact that Mr ORG , who is Prime Minister in the ORG government , completes this painting is disregarded . For whatever reason , no one remembers the fact that [ the Prime Minister ] granted immunity to his QUANTITY friends from GPE who were facing corruption charges by admitting them to the ORG .","Did n\u2019t the poor sons join their corrupt fathers ?","Did n\u2019t PERSON launder his wealth by giving the gold and dollars he received for his wedding and circumcision to his father - in - law ? Were n\u2019t the judges who gave this judgment promoted to higher courts ?","Did n\u2019t PERSON become rich when he bought a boat and started carrying passengers when his father ORG governed the transport sector ?","Was is not PERSON who made sure that his son PERSON chickens were fed QUANTITY of corn without any import duty being added ? Would the list of ORG acts of corruption and rule - breaking fit on this page if I recited them ?","PERSON , the Minister of the ORG , give a reply to the allegations regarding PERSON ?","Do n\u2019t be anxious . Do n\u2019t be alarmed . Do n\u2019t get angry . Do n\u2019t believe it . Do n\u2019t be ambitious . The stability of DATE is your work of article It is you who glorified stability . Now you may swell with pride .","No need to get anxious . Consistency is maintained in the way you understand it .","If consistency is to freeze in earthquake tents still covered in snow , if it is dead babies who could not reach DATE , childbirth without doctors , children without schools , schools without teachers , hospitals without doctors , the starvation of teachers , and the poverty of workers and civil servants , it will surely be maintained . Do not get anxious .","If consistency is GPE becoming a drug haven once again , decreasing the age of using drugs to CARDINAL , CARDINAL-year - old prostitutes wandering in the streets , there is consistency in this country . Do not get distressed .","If consistency is the police , the gendarme , public officials , parliamentarians , ministers and mafia jerks taking to the roads there is consistent consistency in this country . Do not take offence .","Hear once more the shouting of the great poet , PERSON . Become aware of how you perceive consistency .","If consistency is \u2018 your farms , the valuables in your safes and your bank accounts\u2019 or your allocations and your salaries , everybody knows that a consistent consistency is in power .","If consistency is dying from hunger by the side of the road or trembling in the cold like a dog or shivering from malaria in DATE , everybody sees that your consistent power is on the right road .","If consistency is NORP bases , NORP bombs , NORP navies , NORP missiles , all the world understands that your consistent consistency kneels and obeys .","If consistency is \u2018 sucking our scarlet blood in your factories\u2019 , we hail such consistency . If consistency is \u2018 the claws of your village lords\u2019 , maintain such consistency .","If your consistency is a \u2018 ORG , we do not clasp our hands before such consistency or rub our faces on it . We oppose it . If your consistency is \u2018 the police truncheon\u2019 we do not obey or give in to such consistency . We fight .","We do not appreciate your walls or your handcuffs ; we do not give a damn about your consistency or commitment . Know that . \u201d","On DATE the Prime Minister of GPE , Mr PERSON , brought a civil action for compensation against the applicant and the publishing company before ORG of First Instance on the ground that certain remarks in the article above constituted an attack on his personal rights .","NORP Before the first - instance court the applicant maintained , inter alia , that the aim of the article in question had not been to insult the Prime Minister but to criticise him . He submitted that his article had to be read in the context of the interviews given by the Prime Minister . In this connection , he submitted quotations from CARDINAL interviews given by the Prime Minister and a press release from ORG . The content of these quotations referred notably to stability in GPE and its positive effects , freedom of expression in GPE , and the independence of the judiciary .","On DATE ORG ordered the applicant and the publishing company jointly to pay compensation to Mr ORG in the amount of MONEY ( TRY ) , plus interest at the statutory rate applicable on the date of the publication of the article .","In its decision the court referred to the following passages :","\u201c Stability has lost its dictionary meaning and become a sickening word . From Prime Minister to ministers to politicians the word is in everyone \u2019s mouth ... But there is no need to worry because stability is continuing . The Prime Minister and his men are continuing to be stable in creating their absurdities ... The Prime Minister and his men are continuing to be stable in swearing ...","Stability has a special meaning for the Prime Minister . The Prime Minister , forgetting which chair he occupies , shows on every occasion what a master denouncer he is . He who just DATE was denouncing GPE to the outside world for the headscarf of his wife and daughter , DATE makes up a crime and denounces those who support Prof . PERSON of the Van CARDINAL y\u0131l University . Outside he incites GPE for whom he is a civil servant and inside his civil servants \u2018 the ORG .","Whether you like it or not stability is continuing . Every word that comes out of his mouth shocks , even if denied and corrected . The act of looking you in the eye and lying is considered as governing the country . DATE he says there are no convictions under LAW two journalists are convicted under it . And when he reopened ORG DATE after it became operational or when he cut the ribbon once again DATE at ORG neither he nor his men blushed ...","Stability is continuing . The man is lying about matters from national income to inflation to the budget . Do n\u2019t believe it . Stability is continuing . From teachers to judges , from prosecutors to the police , from imams to doctors , the man uses these posts like the property of his own party . Do n\u2019t be angry .","In respect of the Minister of the ORG and the Minister of ORG , who are both defendants in the proceedings concerning the embezzlement of MONEY from ORG , the Minister of ORG , PERSON , states that they will be acquitted . This is not considered as interfering with the judiciary . PERSON says he thinks PERSON will not be punished . This is not considered as interfering with the judiciary . But he is able to denounce at the meeting of GPE requesting justice for rector PERSON . He does not know what crime or punishment are . He does n\u2019t read , he does n\u2019t learn . He is content with what entered his head at ORG when he was DATE . \u201d","The court stated that the press had certain privileges so as to provide free and impartial news , to be able to discuss views and opinions and to enlighten the public . However , like all freedoms these privileges were not without limits . In this connection it noted that freedom of the press was limited by LAW , LAW and LAW in so far as it concerned the protection of honour and reputation of persons .","The court further considered , inter alia , that the press , while performing their duty to inform the public of issues and events of public interest , may have to criticise certain persons and institutions . In such circumstances CARDINAL rights competed , namely the freedom of the press and personal rights , and CARDINAL of the rights would require more protection than the other .","NORP In this connection , the court considered , inter alia , that politicians should bear the burden of being subjected to heavy criticism and that they should particularly be more tolerant of virulent criticism if they occupy a higher function in the State . However , it held that this was not without limits . It considered that in its duty to inform , the press was limited in its criticism , even of politicians by , inter alia , the following : a ) truthfulness b ) public interest c ) topicality d ) interconnectedness between the thoughts , the subject and the words used .","The court opined that in the present case the remarks contained in the article went beyond the limits of acceptable criticism , there was no harmony between the form and the content , the content went beyond the subject of criticism , and that through the words used there was an unjustified attack on the plaintiff \u2019s personal rights .","The applicant appealed .","On DATE ORG refused the applicant \u2019s request for a hearing as the value of the case did not reach the threshold required under domestic law and upheld the judgment of the first - instance court . This decision was served on the applicant on DATE .","On DATE ORG refused to examine the merits of the applicant \u2019s request for a rectification of its decision since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted .","On DATE Birg\u00fcn published another article written by the applicant entitled \u201c Get well soon \u201d . The article read as follows :","\u201c I thought long and hard about whether to send this article to the newspaper advertisement service or to the editor in charge of articles . I guess a CARDINAL - page newspaper advertisement would n\u2019t have been bad . It was high time I put in an advertisement which said \u2018 read me\u2019 in large print and which was of a modern design and under which I put my signature .","However , I needed some money for my dream to come true . But , I would not overcome this problem by putting a paid advertisement in the newspaper as both the euro and NORP lira were taken out of circulation a long time ago in my newspaper , which had no boss . In the last analysis , I found out that I had to find some other solutions as the conditions for submitting an advertisement were not ripe . Since I was the child of a \u2018 country where solutions were PERSON , I could overcome this problem by standing on my own feet . And I did . In DATE my colleagues have been asked whether their columns are their property . And now I decided to use my column for my private matters as \u2018 it is my property\u2019 . Maybe I would use the \u2018 get well\u2019 advertisement as a step to improve private relations that would \u2018 lead to some good\u2019 .","The contrary could also be experienced . My innocence would be disregarded and my well - intentioned attempt could be misunderstood . It would be deemed as \u2018 a libellous and deriding statement against honour , pride and dignity which infringes personal rights and a severe , intolerable and unbearable insult\u2019 . Then I would feel sorry for not taking the opportunity to make a \u2018 get well visit\u2019 . I would regret not talking face to face , taking his TIME by adding \u2018 take care\u2019 to my \u2018 get PERSON wish .","But I know for sure that I could never succeed in making such an appointment in spite of my journalistic experience . I am not exaggerating . I really could not . Because I would not , for instance , call \u2018 PERSON Undersecretary\u2019 the top civil servant who emphasised \u2018 the necessity of replacing the republic and the principles of secularism with integration with Islam\u2019 and ask for an appointment in DATE like these where \u2018 tanks make their appearances in the streets and we feel an urgent need for unity and solidarity\u2019 .","One might ask then , if I could not call the press agent . My answer to them would be , in GPE jargon , that \u2018 they are dead on their feet paying their hotel ORG . Moreover , I would n\u2019t do that either . Because by my nature , I refuse to be rude to somebody all along .","Suppose that giving way to despair , I dialled the number . It would appear that there is no such office in the central organisation of ORG any more . Several journalists from the supporting media organisations who are \u2018 holding a press card and members of a religious ORG are coupled together and wandering in the building like cats on hot bricks . However , its functioning has changed . When you dialled the number , you immediately realise that the journalist you get on the phone is not a press agent but an \u2018 executive director for proofreading press PERSON . You do n\u2019t even have to call them . Mostly , they call you . So far I have n\u2019t called them and they have n\u2019t called me . However , \u2018 those who have been ORG state that the voice at the other end of the telephone says every time \u2018 he did not say that\u2019 or \u2018 he did not mean to say that\u2019 .","Under these circumstances I give up making a big announcement . From my column I say to Prime Minister PERSON , get well soon . I leave him in the hands of the NORP doctors . But as a dabbler in amateur psychology I would like to draw attention to a small detail . Having regard to the fact that he defames the birds in the air and the wolves in the mountains , he responds to criticisms with swearing , for him University professors are immoral , the opposition party meagre , journalists shameless , and he also makes inappropriate remarks about the mothers of the voters , I consider it useful for both his and the public \u2019s mental health to investigate whether he had a high - fevered illness when he was young ...","As he has become such a nervous wreck in that he dismissed a question like the erection of the \u201c NORP FAC \u201d in GPE and tore the NORP book in the house of PERSON , I suspect that he is suffering from a psychopathic aggressive illness . I wish him a quick recovery . \u201d","On DATE the Prime Minister of GPE , Mr PERSON brought a civil action for compensation against the applicant and the publishing company before ORG of First Instance on the ground that certain remarks in the above article constituted an attack on his personal rights .","Before the first - instance court the applicant maintained , inter alia , that the aim of the article in question had not been to insult the Prime Minister but to criticise him . He claimed that since the plaintiff was a politician and Prime Minister of GPE , he had to be open to political criticism . In this connection , the applicant pointed out that the plaintiff should be particularly tolerant towards heavy criticism as a result of incidents or events he had created . In support of his submissions he submitted quotations from a number of columnists criticising various incidents involving the Prime Minister and an interview with PERSON , member of ORG and member of parliament , where the latter considered , inter alia , that the Prime Minister had been tense in DATE and that as a result his responses had been automatic .","On DATE ORG ordered the applicant and the publishing company jointly to pay compensation to Mr ORG in the amount of TRY CARDINAL , plus interest at the statutory rate applicable on the date of the publication of the article .","NORP In its decision the court referred to the following passages below :","\u201c ... under these circumstances I give up making a big announcement . From my column I say to Prime Minister PERSON , get well soon . I leave him in the hands of the NORP doctors . But as a dabbler in amateur psychology I would like to draw attention to a small detail . Having regard to the fact that he defames the birds in the air and the wolves in the mountains , he responds to criticisms with swearing , for him University professors are immoral , the opposition party meagre , journalists shameless , and he also makes inappropriate remarks about the mothers of the voters , I consider it useful for both his and the public \u2019s mental health to investigate whether he had a high - fevered illness when he was young ...","As he has become such a nervous wreck in that he dismissed a question like the erection of the \u201c NORP FAC \u201d in GPE and tore the NORP book in the house of PERSON , I suspect that he is suffering from a psychopathic aggressive illness . I wish him a quick recovery . \u201d","The court considered that the article taken as a whole had alleged that the Prime Minister had psychological problems and that he had a hostile attitude suggesting he was mentally ill . It held that a politician naturally had to bear and tolerate reasonable criticism . However , the court considered that , in the instant case , the remarks made in the article went beyond the limits of acceptable criticism and belittled the Prime Minister in the public and the political arena . In its view , the allegations were not the kind that one could make about a Prime Minister .","The applicant appealed .","On DATE ORG refused the applicant \u2019s request for a hearing as the value of the case did not reach the threshold required under domestic law , and upheld the judgment of the first - instance court . This decision was served on the applicant on DATE .","On DATE ORG refused to examine the merits of the applicant \u2019s request for a rectification of its decision , since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted .","Enforcement proceedings were initiated by the Prime Minister against the applicant and the publishing company in respect of the compensation awarded by the domestic courts . CARDINAL case files were opened ( nos . CARDINAL\/CARDINAL and DATE ) by ORG .","According to the documents submitted by the Government the sum due in respect of case no . DATE amounted to TRY CARDINAL,CARDINAL.CARDINAL and was fully executed . It appears that the applicant paid TRY CARDINAL of this sum . The sum due in respect of case no . CARDINAL\/CARDINAL amounted to ORG and had not yet been executed on DATE .","A description of the relevant domestic law at the material time can be found in GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE ."],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-89813","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2008,"docname":"CASE OF JUCIUS AND JUCIUVIEN\u0116 v. LITHUANIA","importance":3,"conclusion":"Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award","judges":"Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The first applicant is a NORP national who was born in DATE . The second applicant , his wife , is a NORP national who was born in DATE . They live together in GPE and have CARDINAL children .","NORP In DATE the first applicant \u2019s sister , LAW , and her partner , ORG ( senior ) , died , and the applicants were appointed as temporary custodians of the deceased couple \u2019s daughters - R\u0160 , aged CARDINAL , and D\u0160 , aged DATE .","On an unspecified date in DATE the paternal grandparents , S\u0160 and V\u0160 , applied to a court to adopt R\u0160 and D\u0160 . The applicants submitted a counter - claim for the adoption . On DATE the ORG accepted the GPE claim , recognising R\u0160 and D\u0160 as their adopted children . On DATE ORG upheld that decision . On DATE ORG quashed the lower decisions , remitting the case for a fresh examination at first instance .","On DATE the ORG partly granted the claim of GPE and ORG , by recognising PERSON ( then DATE ) as their adopted daughter . However , it recognised R\u0160 ( then DATE ) as the adopted daughter of the applicants . The applicants and the grandparents were ordered by the court to ensure that there were no obstacles that would prevent R\u0160 and ORG from communicating with the applicants as well as with their grandparents .","On DATE the ORG quashed the decision , dismissing both adoption applications . The court considered that the dispute between the CARDINAL couples could be resolved without an adoption , but by a grant of permanent custody .","On DATE the ORG appointed GPE and ORG as the permanent custodians of the QUANTITY girls . The court reached this decision on account of the better financial and living conditions of the grandparents compared to the applicants , as well as the fact that S\u0160 and V\u0160 were closer blood relatives to the girls . Noting PERSON \u2019s young age ( then DATE ) and her \u201c emotional instability \u201d when expressing herself in front of officials , the court rejected her express wish to live with her \u201c mother \u201d and \u201c father \u201d ( the applicants ) . ORG observed that a child \u2019s wish does not necessarily coincide with its future interests ; therefore the court was not bound by PERSON \u2019s opinion . The court took note of the request of ORG to give custody of the girls to the applicants , whom the girls recognised as their \u201c natural family \u201d and who had cared for them since their GPE death . However , it concluded that the girls were of a young , adaptable age . As R\u0160 had lived with the applicants for DATE , without any memory of her PERSON family , she was unable to understand where she would be better off .","The applicants and ORG appealed . On DATE the ORG confirmed the first - instance reasoning and decision after a written procedure , without an oral hearing of the parties .","The applicants and ORG lodged cassation appeals . On DATE the President of ORG suspended the execution of the Ma\u017eeikiai ORG decision until the cassation appeal could be examined . On DATE ORG held that it had no jurisdiction in child custody cases and dismissed the cassation application .","On DATE , when the bailiff attempted to execute the courts\u2019 decision , R\u0160 refused to leave the applicants\u2019 home to live with her grandparents . D\u0160 was taken to the grandparents .","On an unspecified date the Prosecutor General , defending the public interest , filed a request to reopen the proceedings . ORG reopened the civil proceedings and , on DATE , overruled the ORG decision of DATE . The court granted permanent custody of R\u0160 to the applicants , who lived in GPE , and permanent custody of D\u0160 to the grandparents , who lived in PERSON . When deciding to separate the sisters , the court noted the wish of R\u0160 to stay with the applicants and the wish of D\u0160 to stay with her grandparents . The court also observed that , since DATE , the girls had lived separately and were used to their current environments .","The grandparents appealed to ORG , which on DATE upheld the lower court \u2019s decision . The appellate court was of the opinion that it had been reasonable for the first - instance court to take into consideration the interests of each child and not to consider them as an inseparable unit . The court noted that the children should be provided with the most suitable and best conditions to meet their personal interests in the most advantageous way . Therefore the court found that the principle of not separating siblings had been justifiably overruled . It also held that the principle of placing children within the family had not been violated . The court pointed out that it was not only blood ties which mattered when choosing placements , but also the individuals to whom the child felt closest .","On DATE ORG gave a final ruling and upheld the decision of ORG . Agreeing with the reasoning of the lower courts , it observed that during the initial proceedings ORG had made a mistake by not giving primary consideration to the wishes of PERSON . ORG also noted that the evidence in the case showed the existence of a conflict between the CARDINAL guardianship families . It noted that proper conditions should be created so that the girls could communicate with each other , giving the primary importance of the children \u2019s interests over those of their guardians . This was an obligation for the ORG authorities to fulfil .","The questions related to child custody are regulated by LAW ( Civilinis kodeksas ) , the relevant articles of which read as follows :","\u201c CARDINAL . In considering any question related to a child , the child , if capable of formulating its views , must be heard directly or , where that is impossible , through a representative . Any decisions on such a question must be taken with regard to the child \u2019s wishes unless they are contrary to the child \u2019s interests . In making a decision on the appointment of a child \u2019s guardian \/ curator or on a child \u2019s adoption , the child \u2019s wishes shall be given paramount consideration ... \u201d","\u201c CARDINAL . The purpose of child custody \/ curatorship is to ensure the child \u2019s upbringing and care in an environment which would facilitate the child \u2019s growing up , development and progress .","Objectives of child custody \/ curatorship :","CARDINAL ) to appoint for the child a guardian whose duty it will be to take care of the child , bring it up , to represent the child and protect its rights and legitimate interests ;","CARDINAL ) to provide the child with living conditions which would be adequate for its age , state of health and development level ;","CARDINAL ) to prepare the child for independent life in a family and in society . \u201d","\u201c CARDINAL . The establishment of child custody \/ curatorship shall be governed by the following principles :","CARDINAL ) first consideration must be given to the interests of the child ;","CARDINAL ) priority in becoming the child \u2019s guardians ( curators ) must be accorded to its close relatives , provided this is in the child \u2019s best interests ;","CARDINAL ) the child \u2019s custody \/ curatorship in a family ;","CARDINAL ) non - separation of siblings , except when this is contrary to the child \u2019s interests . ...","When child custody \/ curatorship is established or ended , or a guardian is appointed to a child capable of expressing its views , the child shall be provided an opportunity to be heard and to influence the decision making . \u201d","\u201c A child shall be put under permanent custody ( curatorship ) when :","CARDINAL ) both parents or the single parent of the child are dead ... \u201d","\u201c CARDINAL . A child \u2019s guardian \/ curator shall be selected by taking into consideration his or her personal qualities , state of health , abilities to function as a guardian \/ curator , relations with the child deprived of parental care , and the interests of the child ... \u201d","The PERSON on ORG ( PERSON teisi\u0173 apsaugos pagrind\u0173 \u012fstatymas ) , insofar as relevant to this case , provides as follows :","\u201c Parents , other legal representatives of the child , the ORG , municipal government , public institutions and other natural and legal persons must abide by the following provisions and principles :","CARDINAL ) the legal interests of the child must always and everywhere be given priority ...","CARDINAL ) no child must be left without a home , minimum funds for subsistence and care or custody ... \u201d","\u201c CARDINAL . A child shall have the right to live with its parents or other legal representatives .","To separate a child from its parents or its other legal representatives against the will of the child , as well as that of its parents ( legal representatives ) , shall be permitted only in exceptional circumstances , provided for by laws and according to the established procedure , based upon a court decision and when such a separation becomes necessary for the child ( striving to avoid danger to the life and health of the child , or it becomes necessary to take measures in relation to its care and upbringing or to protect other important interests of the child ) . \u201d","Under Articles DATE and DATE of the Code of Civil Procedure , as in force at the material time , in child custody cases a court was to hold a hearing during which a child could express his or her opinion . Under LAW the parties could bring a separate appeal ( atskir\u0105j\u012f skund\u0105 ) against a decision of a first instance court . Article CARDINAL stipulated that the appellate court would determine such appeals by way of a written procedure . According to Articles CARDINAL and FAC of the LAW , the appellate court , when examining a separate appeal , had a right to examine de novo evidence , as well as evidence which had already been examined by the first instance court . Therefore the appellate court could decide both questions of law and fact ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75898","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2006,"docname":"CASE OF TERENI v. SLOVAKIA","importance":4,"conclusion":"Violation of Art. 6-1 (length of one set of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in Vr\u00e1ble .","On DATE the applicant was dismissed from his job as a sports teacher at a secondary school .","On DATE the ORG found that the applicant \u2019s dismissal was void .","On CARDINAL DATE the applicant again received a notice of dismissal .","On DATE ORG dismissed the applicant \u2019s action challenging the lawfulness of the dismissal .","On DATE the ORG branch of ORG declared the applicant \u2019s dismissal unlawful .","In DATE the applicant claimed payment of the salary which the employer owed him .","On DATE ORG dismissed the action , but the ORG branch of ORG quashed this decision on CARDINAL DATE .","On DATE ORG ordered the defendant to pay the outstanding salary to the applicant .","On DATE ORG upheld this decision .","On DATE the applicant received a third notice of dismissal from his employer due to redundancy .","On DATE he challenged the lawfulness of his dismissal before ORG . In the course of DATE the applicant supplemented his submission in accordance with the court \u2019s instruction .","On DATE the court asked the applicant to pay the court fee . It also sent the action to the defendant for comments . The applicant paid the fee on DATE . The defendant \u2019s comments were submitted on DATE .","The first hearing was held on DATE . The case was adjourned due to the defendant \u2019s absence .","At the second hearing held on CARDINAL DATE the court heard the parties .","DATE ORG obtained further evidence .","On DATE ORG dismissed the action . The judgment was served on DATE and the applicant appealed on DATE .","On DATE the applicant paid the fee and the file was submitted to the court of appeal on DATE .","On DATE the ORG quashed the first instance judgment and returned the case to ORG . In its decision ORG explicitly stated which evidence needed to be taken with a view to establishing the relevant facts . The file was returned to ORG on DATE .","In the course of DATE ORG obtained further evidence . A hearing was scheduled for DATE .","NORP In a submission of DATE the applicant challenged the presiding judge . He reiterated his objection at the hearing on DATE . The request was submitted to ORG which refused to exclude the judge on DATE . The file was returned to ORG on DATE .","ORG heard the parties on DATE . On DATE it again dismissed the applicant \u2019s action . On DATE the applicant appealed . The file was transmitted to the court of appeal on DATE .","On DATE the court of appeal scheduled a hearing for DATE . It asked the defendant to submit further evidence at the hearing .","On DATE the ORG quashed the first instance judgment of DATE . The court of appeal noted , in particular , that ORG had disregarded the legally binding opinion set out in its decision of DATE and had failed to take evidence with a view to establishing the relevant facts . The case file was returned to ORG on DATE .","On DATE the judge instructed the court \u2019s registry to serve the decision of the court of appeal . The parties were asked to submit further information . The parties submitted their replies on CARDINAL and CARDINAL DATE .","On DATE ORG scheduled a hearing for DATE . It also asked a trade union for information concerning the applicant . The trade union replied on DATE .","ORG held hearings on DATE and on CARDINAL DATE . It also obtained further evidence during that period .","In its third judgment in the case given on DATE ORG dismissed the applicant \u2019s action . It held , with reference to the evidence taken , that the school where the applicant had been employed had been restructured as a result of which the staff had to be reduced . The employer had had no possibility of offering a different job to the applicant . The court also examined the applicant \u2019s objection that under the relevant law his dismissal should have been subject to approval by the trade union . It found that the trade union established within the school had given such consent on DATE .","The judgment was served on the applicant on DATE . He appealed on DATE . The applicant argued that the judgment was arbitrary in that , in particular , ORG had overlooked the fact that the employer could have offered a different job to him . He also argued that he was a member and president of a different trade union which had existed at the school and that that organisation had not been duly consulted prior to his dismissal .","On DATE the President of the ORG admitted that there had been undue delays in serving the judgment of DATE on the applicant and informed the latter that the judge dealing with the case had been disciplined .","On DATE ORG upheld ORG judgment of DATE . It concurred with the first instance court that the statutory requirements for dismissing the applicant had been met in that a causal link existed between the restructuring of the school and the applicant \u2019s redundancy , and the evidence available showed that the employer had not been in a position to offer a different job to the applicant .","As to the applicant \u2019s allegation that his trade union had not been consulted , the appellate court held that the defendant had not been notified that such trade union existed within the school and that the statutes of that trade union did not foresee consultations with employers in similar cases . In addition , the defendant had consulted the trade union which had been established within the school and the existence of which had been officially known to everybody .","On DATE the applicant filed an appeal on points of law . He argued that the courts had disregarded the fact that he had been dismissed after he had become inconvenient because of his criticism of the management of the school and that they had failed to hear the other persons who had also been dismissed for similar reasons at that time .","ORG dismissed the appeal on points of law by a decision given on DATE . It noted , in particular , that there were no apparent shortcomings in the proceedings at the lower instances which would render an appeal on points of law admissible under the relevant provisions of the Code of Civil Procedure . The decision was served on the applicant on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102896","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF GISAYEV v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violations of Art. 3;Violation of Art. 5;Violation of Art. 13 + 3;No violation of Art. 34;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in the city of ORG , in GPE .","In TIME of DATE the applicant , his parents PERSON . PERSON and PERSON and CARDINAL siblings , GPE , GPE and PERSON , were at home at CARDINAL , FAC , PERSON district of ORG .","At TIME on DATE CARDINAL grey UAZ vehicles without registration numbers arrived at the house . A group of CARDINAL men got off the vehicles and burst into the applicant 's house . The intruders were wearing camouflage uniforms with insignia on the forearm indicating \u201c ORG ( ORG PERSON ) , black masks and green helmets with plexiglass parts to protect their faces , those helmets being , according to the applicants , a usual part of the equipment of specialpurpose squads of the NORP security forces , such as ORG ( \u201c ORG \u201d ) . All intruders carried sub - machine guns , wore bullet - proof jackets and vests used for carrying full sub - machine gun cartridges . Some of them were , in addition , armed with pistols and were carrying black ORG walkie - talkies , through which they were communicating . They spoke unaccented NORP . According to the applicant and his relatives , the intruders ' actions were very well co - ordinated .","The intruders took the applicant 's family members outside and searched the house , without giving any explanations or presenting any warrants . CARDINAL of the armed men ordered the PERSON to produce their identity papers . Having checked them , he ordered his subordinates to put the applicant in CARDINAL of the UAZ vehicles . Shortly thereafter the applicant was placed in the vehicle and one of the intruders , sitting in the front passenger seat , ordered another man , whom he referred to as \u201c LAW \u201d , to put a shirt over the applicant 's head . He also told someone over his walkie - talkie : \u201c To the base station , we carry out an arrest , do not disturb \u201d ( \u201c \u041f\u043e \u043e\u043f\u043e\u0440\u043d\u043e\u043c\u0443 \u043f\u0443\u043d\u043a\u0442\u0443 , \u0443 \u043d\u0430\u0441 \u0437\u0430\u0434\u0435\u0440\u0436\u0430\u043d\u0438\u0435 , \u043d\u0435 \u0431\u0435\u0441\u043f\u043e\u043a\u043e\u0438\u0442\u044c \u201d ) .","After the applicant had been put in the vehicle , his father repeatedly requested the intruders to explain the reasons for the applicant 's arrest , to name the ORG authority to which they belonged and to which he could apply in connection with the applicant 's detention . Although the armed men initially disregarded his questions , CARDINAL of them finally replied : \u201c We will check him and let him go . You can request further information from the ORG . \u201d","Shortly thereafter the intruders got into their vehicles and drove off in the direction of the Staropromyslovskoye highway in ORG . While the applicant and his relatives were outside , they had an opportunity to memorise several details concerning the vehicles . In particular , they noticed that they were armoured and equipped with loopholes for riflemen and had on their roofs square boxes with long antennas . Subsequently , the applicant and his relatives learnt that those boxes were containers for radio - frequency suppression , which formed part of the special equipment of the ORG and ORG of the NORP army ( the \u201c GRU \u201d ) .","When the applicant 's relatives went back inside , they discovered that some items and money had been taken .","After the abductors had taken off with the applicant , they drove for TIME . On its way the vehicle honked while passing through a checkpoint , stopped for a while and then continued moving . Shortly thereafter the vehicle stopped and honked again and the applicant heard the sound of a gate opening . He was then ordered to get out . While doing so , he managed to look around and concluded that he was near the \u201c PERSON \u201d station on FAC , where the LOC of the operational - search bureau ORG , the ORG , ORG ( \u201c the ORG \u201d ) , the military commander 's office and the government of GPE were located .","The applicant 's abductors took him inside an unknown building to a room located on the fourth floor , sat him down in the corner and handcuffed him to a heating pipe . When they left , the applicant managed to remove the shirt from his face and saw that he was in a room where there was a table and a chair . On the chair he saw a camouflage jacket with NORP military insignia on its sleeve . On the table there was a phone .","DATE the servicemen interrogated the applicant as to whether he was a member of illegal armed groups or knew something about them . In his submission , they considered that he must have had that information based , among other things , on the fact that he had used to work in ORG under the ORG regime . He refused to confess to anything . They then threatened him with violence and mentioned that his family was in danger because of his reluctance to speak . Then they left the room and locked the door .","After a while several persons entered the room ; they asked the applicant if he had any information on the NORP rebels and weapon hoards . The applicant denied his involvement in any illegal activities ; the men beat him with a truncheon . Then they attached electric wires to his right hand and right foot and started passing an electric current through his body . They also burned his hands and feet with cigarettes , beat and insulted him . The applicant was denied any food and water . Then the servicemen again handcuffed him to the pipe and left him alone .","TIME to the applicant 's room and gave him some water . Immediately thereafter they put a plastic bag over his head . TIME a few more men entered the room . They plastered the applicant 's eyes and mouth with adhesive tape and began to beat and kick him . The applicant was lying face down ; CARDINAL of the servicemen stood on his back . The servicemen connected an electric wire to the applicant 's handcuffs and to the little toe of his right foot and passed , again , an electric current through his body . The men told the applicant that they would blow up his family house unless he confessed that he was a rebel fighter . They tortured him in that way for TIME . At TIME they handcuffed the applicant to the pipe and left .","In TIME of DATE the servicemen brought the applicant to the ground floor and allowed him to wash the blood off his body . The applicant discovered that his nose was swollen , his right wrist and right ankle were burned and CARDINAL of his lips was badly cut . Then the servicemen brought the applicant back to the room on the fourth floor and continued to interrogate him even more violently .","In TIME of DATE the servicemen again used an electric current on the applicant , beat and abused him . Then they tied him to the pipe and left . At TIME the applicant moaned in pain ; having heard the noise , the servicemen returned and beat him again .","In TIME of DATE CARDINAL servicemen whom the applicant had not seen before entered the room and beat him . They threw some sharp objects at the applicant 's head ; when it started bleeding , they bandaged his head with a piece of cloth to stop the bleeding and continued to beat him . CARDINAL of the servicemen beat the applicant on the abdomen and back with another sharp object , and kicked him on the throat and shoulder .","According to the applicant , when speaking among themselves , the servicemen often used specific terms . In particular , some of them would ask others if anything happened while they had been on duty or when they would take leave . Over the phone , which was in the room where the applicant was held , the servicemen would inform their interlocutors that someone \u201c had gone to the military commander 's office \u201d . In the applicant 's presence they were addressing each other as \u201c Number CARDINAL \u201d or \u201c Number CARDINAL \u201d . On several occasions the persons who had tortured the applicant , when leaving the room , were addressing others saying \u201c You have been called by the commander \u201d or \u201c Get down to the canteen and fetch us some food , do n't forget the apples \u201d . Once at night the applicant heard the sounds of machine guns coming from outside . The person who was in the room with him took the phone and asked someone over it : \u201c Why are you shooting ? \u201d .","On DATE the man who had been in command of the operation when the applicant was abducted came to the applicant 's room and told the others that the applicant 's relatives were at the gate . He called someone over the phone several times asking if the applicant 's relatives had left . He also told the person to frighten them to make them leave . Among themselves , the servicemen who were in the room were discussing how the applicant 's relatives could have learnt about his whereabouts and from whom they might have obtained that information .","Shortly thereafter , at CARDINAL CARDINAL p.m. on DATE the servicemen put a black plastic bag over the applicant 's head , plastered his eyes with adhesive tape and took him outside the building . Then they placed him in a car , put on some loud music and drove for TIME . Despite the music , the applicant was able to hear that the car was moving through busy streets . He also heard the servicemen talking over their walkie - talkies . During the ride they told the applicant that they were going to shoot him . According to the applicant , the car was moving in the direction of the Minutka Square or GPE . When the car stopped , the servicemen dragged the applicant out and placed him in a boot of another car . That car drove for TIME stopping CARDINAL times , presumably at checkpoints . Then the servicemen took the applicant out of the boot and took him to the basement of a building which was unfamiliar to him . The applicant 's abductors referred to the place as \u201c LOC .","In the basement the servicemen tied the applicant to a pole and started interrogating him . They asked him whether he knew anything about rebel fighters and weapon hoards ; the applicant replied in the negative . The servicemen beat him all over his body , including the face , head and solar plexus . After TIME of beating they ordered the applicant to lie on the left side of his body and tied him to the table legs and left . When they left , he managed to lift the plastic bag off his eyes so that he could see a cellar of concrete blocks measuring around QUANTITY . After a while the servicemen brought him a blanket and a pillow .","In TIME of CARDINAL DATE the servicemen gave the applicant some tea and a piece of bread and asked him whether his real name was PERSON , not PERSON . The applicant replied that he had never forged his identity papers to change his name .","While kept in the basement , the applicant had to lie on the floor covered with water . Occasionally he heard the noise of helicopters and armoured vehicles outside . At times different persons came to the basement ; they threatened the applicant , insulted and beat him .","On DATE of the detention in the basement a man entered and hit the applicant on the face . The applicant fell ; the man ordered him to rise . Then CARDINAL other men arrived ; they put a plastic bag over the applicant 's head , plastered his eyes and mouth and told him that his death had come . The applicant asked them to give his corpse to his parents after his death ; the men replied that they would feed his dead body to dogs . For TIME they passed an electric current through the applicant 's body and beat him . Then the applicant vomited and nearly fainted ; he was bleeding . Later , when the applicant regained consciousness , several servicemen beat him again .","NORP Over DATE the servicemen repeatedly came to the basement and ill - treated the applicant ; at times they used an electric current . They surrounded the applicant and took turns to hit him ; they stood on the applicant 's back and beat him with truncheons ; they hung him up by his arms and left him hanging for a long time . From time to time they attached an electric cable to the applicant 's ear and passed electricity though it . Several times they put a gas - mask on his face so that he was forced to inhale a substance with a strong suffocating smell .","The servicemen threatened the applicant with murder again and again . They forced him to drink alcohol and smoke cigarettes to make sure that he was not a radical NORP fundamentalist , which was particularly insulting for the applicant , a devout NORP . They also put to him all sorts of questions concerning his religious beliefs and the NORP traditions of the NORP people in which they appeared to be interested .","The servicemen spoke unaccented NORP ; they employed legal terms used by the police and ORG officers . According to the applicant , there were offices above his room in the basement . He heard people saying that the special - purpose squad ( \u201c the LAW \u201d ) had arrived , that someone needed to be sent to a particular location in a helicopter , that a special - purpose squad would take off to the town of PERSON in ORG . TIME a woman called \u201c PERSON \u201d would arrive at the office upstairs and tell the others that she had had ordered from the stock a certain quantity of soap , bedding or tinned food . The applicant also heard the noise of armoured vehicles , helicopters and a working military radio station coming from the outside .","On an unspecified date several servicemen entered the basement , put a plastic bag on the applicant 's head , plastered his eyes with adhesive tape and told him that they were going to shoot him . They took the applicant outside the building and put him in the boot of a car . After a TIME ride the car stopped ; the servicemen took the applicant out of the boot and led him inside a building . There they attached him to a pipe and left .","At some point the servicemen took the plastic bag off the applicant 's head and gave him food and water . The applicant spent DATE in that room ; he was not beaten during that period . Then the servicemen took the applicant to another room and handcuffed him to a bed . He spent DATE there . Then a man came who asked the applicant if he had seen any faces , apparently of those who had beaten him . The applicant replied in the negative . The man told him that he had not been detained but kidnapped .","In TIME of CARDINAL DATE the servicemen again put a plastic bag on the applicant 's head and told him that he would be released . They commented that the applicant would have to leave GPE ; otherwise they would kill him and his family . Then they put the applicant in a car ; after a TIME ride the car stopped . A man asked the applicant in NORP if he was PERSON from the Katayama district ; the applicant replied in the affirmative . The man told the applicant to get out of the car and escorted him to another car . There he removed the plastic bag from the applicant 's head and told him not to worry and that he would bring him home . The applicant saw that the man was his relative who was working with the law - enforcement authorities . When the applicant looked around , he realised that the cars were parked on FAC in GPE near a fence over which was written \u201c ORG of the GPE \u201d , QUANTITY away from the buildings of the ORG , the city military commander 's office , the ORG , ORG and ORG .","The applicant saw his relative give something to CARDINAL servicemen wearing camouflage uniforms with the NORP military insignia . CARDINAL of them , a DATE man of medium height , carried a gun ; the other was a tall brown - haired man in DATE . Later the applicant discovered that his relatives had paid a ransom of MONEY for his release .","Then the applicant 's relative brought him home . According to the applicant , he could not communicate the name of his relative because the latter feared for his life .","The above description of the events is based on the applicant 's fivepage typed complaint to the prosecutor 's office of LOC of PERSON dated DATE , his elevenpage written statement made on DATE and his written statement of CARDINAL DATE ; the applicant 's father 's statements of CARDINAL DATE and DATE and DATE ; the applicant 's mother 's statements of CARDINAL DATE and DATE ; written statements by PERSON made on DATE and DATE ; a written statement by PERSON made on DATE ; a written statement by ORG of DATE ; a detailed sketch of the area of the Staropromyslovskoye highway , on which are located the LOC of the ORG , the ORG , the ORG , ORG and other authorities mentioned by the applicant , with the indication of where those authorities ' premises , as well as their checkpoints , fences and car parks , are to be found , accompanied by the applicant 's detailed description and written explanation .","On DATE unidentified armed persons in camouflage uniforms and masks , driving CARDINAL grey UAZ vehicles , burst into the applicant 's house at DATE , FAC , PERSON , and abducted the applicant .","On DATE the applicant 's father complained about his son 's abduction to the prosecutor 's office of LOC of PERSON ( \u201c the district prosecutor 's office \u201d ) and the police . However , those ORG authorities denied having any information on the applicant 's whereabouts and also refused to institute a criminal investigation into his abduction .","NORP The applicant 's father also reported the circumstances of his son 's kidnapping to the Special Envoy of the NORP President in GPE for Rights and Freedoms ( \u201c the Special Envoy \u201d ) and ORG . On DATE the Special Envoy requested the prosecutor 's office of GPE ( \u201c the NORP prosecutor 's office \u201d ) that requisite measures be taken to establish the applicant 's whereabouts .","On an unspecified date in DATE the applicant 's relatives applied to the local police in connection with his abduction . The police officers allegedly told them that in TIME on DATE , while they had been on duty , unspecified ORG officers informed them over radio channels that the latter were carrying out an arrest on FAC and that the police officers were not to interfere with the operation .","On DATE CARDINAL young men who knew about the abduction of the applicant allegedly came to the applicant 's father and told him that they had been in the city centre on TIME of DATE and had seen CARDINAL ORG vehicles , which had first been driven through the city centre and had then entered the premises of GPE , located on FAC near the LOC of the ORG , the military commander 's office , the ORG and ORG .","On an unspecified date the applicant 's relatives went to ORG and tried to obtain information concerning him . However , the persons to whom they talked denied having arrested him . At CARDINAL point CARDINAL men approached the applicant 's relatives . They introduced themselves as ORG officers and asked the applicant 's father who had given him the information that his son had been abducted by the ORG . When he refused to reply , they became aggressive and insisted that he tell them his source of information . Faced with his refusal to do so , they ordered him to leave , saying that the place was dangerous and that he could be shot dead . They also said that they did not have the applicant . Having heard that , the applicant 's relatives returned home .","On DATE a friend of the applicant , an official of a lawenforcement agency , came to the applicant 's relatives and told them that the applicant had been abducted by officers of ORG , which was under direct command of the ORG . He also told them that after his abduction the applicant had been held for DATE on the premises of ORG and then transferred to GPE for further interrogation .","Subsequently , the applicants found a person who was an officer of the ORG and who negotiated with the abductors the applicant 's release in exchange for MONEY ( ORG ) . The applicant 's relatives collected the money and gave it to that man .","Upon his return home the applicant experienced major health problems . He suffered from insomnia and severe headaches ; at some point he had a fever . His extremities ached and wounds festered . He had bruises , burns and cuts all over his body . He was not able to walk on his own and needed assistance in moving around the house . The applicant 's health was so poor that he could not visit a doctor for DATE following his release . According to the applicant , after his release he had to undergo medical examinations and treatment on a permanent basis and to take various medication including painkillers , to ease the pain .","In support of his submissions concerning his state of health the applicant also referred to statements of his relatives mentioned in paragraph CARDINAL above .","On DATE the applicant was examined by a doctor . According to a certificate of that date , he submitted to the doctor that he had been held in detention DATE and DATE and had been beaten on numerous occasions . The applicant complained , among other things , about headache , pain in the lower back and frequent urination . The certificate noted , among other things , the following injuries : a QUANTITY QUANTITY scar in the cervical region of the head , a scar measuring QUANTITY on the right hip , a round scar measuring QUANTITY on the right wrist . The applicant was diagnosed with \u201c numerous scars on his head and body \u201d and an examination by a neuropathologist was recommended .","According to a certificate of DATE , on that date the applicant was examined by a neuropathologist , to whom he complained about headaches , dizziness , insomnia , overall fatigue , numbness of extremities and pain in the lower back . The certificate noted that the applicant had a closed craniocerebral injury , was unstable in the PERSON test and had tremor of eyelids and hands . The palpation of the spine and chest area was painful . The applicant was diagnosed with \u201c after - effects of closed intracranial injury \u201d , \u201c astheno - neurological syndrome \u201d and \u201c posttraumatic osteochondrosis of the thorax region \u201d .","On DATE the applicant was examined by a neurologist . According to his medical certificate of the same date , the applicant was diagnosed with chronic prostatitis .","According to a certificate of DATE , the applicant was diagnosed with continuing after - effects of a craniocerebral injury , including encephalopathy of the first and second degree .","According to the applicant 's medical report dated DATE , from CARDINAL to DATE he underwent in - patient treatment in the neurological department of hospital no . CARDINAL in ORG . The document , in so far as relevant , reads as follows :","\u201c After - effects of closed craniocerebral injury , severe brain contusion in the form of persistent intercranial hypertension ; recurring hypertensive - hydrocephalic crises ( CARDINAL times a week ) ; recurring vestibular crises ( CARDINAL to CARDINAL times a week ) , accompanied by loss of coordination ; strongly pronounced astheno - neurotic syndrome ; mombalgia .","Complaints about : recurring headaches accompanied by dizziness and vomiting ; weakness in arms and legs ; attacks of dizziness accompanied by loss of coordination ; loss of memory of current events ; lower back pain becoming stronger in a static position and while walking .","An morbi : The patient has been sick since he was abducted , detained in a basement and ill - treated ( in his words ) . The applicant has had the above - mentioned complaints since that time ; underwent in- and outpatient treatment on numerous occasions , has been under continuous supervision of a neuropathologist . The effectiveness of the treatment is negligible .","...","The overall state of health is of medium gravity .","...","Muscular reflexes in arms reduced ...","Muscular reflexes in legs reduced ...","...","Established numbness in hands and legs . \u201d","On DATE the district prosecutor 's office instituted an investigation into the applicant 's abduction under LAW of LAW ( aggravated kidnapping ) .","On DATE the district prosecutor 's office replied to the head of ORG that on DATE it had launched an investigation into the abduction of the applicant . A copy of that letter was forwarded to the applicant 's relatives .","On DATE ORG , acting on the applicant 's relatives ' behalf , requested the district prosecutor 's office to inform them of the progress in the investigation into the kidnapping .","On DATE the applicant requested the district prosecutor 's office to open an investigation into his unlawful abduction , detention and ill - treatment , to grant him the status of victim of a crime and to order and carry out his medical examination . He also vaguely mentioned the search of his home carried out on the night of the kidnapping , but did not make any distinct complaint in this respect .","On DATE the applicant wrote to the district prosecutor 's office , giving a detailed written description of the circumstances of his abduction , detention and ill - treatment and requesting to be admitted to the criminal proceedings as a victim and a civil party . He also reiterated his request for a medical examination . He stated that he feared for his life because his abductors and torturers were working in law - enforcement bodies , that he was about to leave GPE because of it and requested protection for his family and himself . The applicant enclosed copies of medical certificates of DATE . The applicant 's letter was received by the district prosecutor 's office on DATE .","On DATE the applicant requested the district prosecutor 's office to update him on the progress in the investigation into his kidnapping and to inform him whether his requests lodged on DATE had been granted .","On DATE the district prosecutor 's office informed the applicant that on an unspecified date the investigation into his kidnapping in case no . CARDINAL had been stayed for failure to identify those responsible . The letter also mentioned that despite the applicant 's repeated summonses to the district prosecutor 's office , he had failed to appear , and that the issue of granting him victim status depended on his personal appearance .","On DATE the applicant complained about the investigators ' inactivity to the NORP prosecutor 's office . He referred to his numerous and repeated complaints about the abduction and ill - treatment lodged with the district prosecutor 's office and claimed that they had been left unanswered . He further requested that the investigation in case no . CARDINAL be resumed .","On DATE the NORP prosecutor 's office replied that on an unspecified date the investigation had been reopened and that unspecified investigative measures were being taken to resolve the crime .","On DATE the district prosecutor 's office informed the applicant that the investigation was underway and summoned him to their premises .","On DATE the applicant replied that he had already requested to be granted the status of the victim of a crime in his absence because he had fled GPE to hide from his kidnappers . He asked the investigators to arrange for his medical examination anywhere outside GPE . He also stressed that he was ready to provide to the investigation any information which it might wish to request from him in writing and without delay .","On DATE the district prosecutor 's office informed the applicant that they could not admit him to the proceedings as a victim in his absence and requested him either to come to the prosecutor 's office or to indicate his whereabouts , as well as to inform them in which hospital he had been treated after his release .","On DATE the applicant complained about the inactivity of the investigators to LOC ( \u201c the ORG \u201d ) . He submitted , in particular , that , despite the fact that he had provided detailed information on his abduction and ill - treatment and had apprised the district prosecutor 's office of his fear for his life , the latter had taken no steps to investigate the crime against him and conditioned the grant of victim status on his showing up at their office .","By a decision of DATE the district prosecutor 's office granted the applicant the status of victim of a crime in case no . CARDINAL . The decision stated that at TIME on DATE a group of CARDINAL armed persons in camouflage uniforms , who had arrived in grey ORG vehicles without registration plates , had burst into the applicant 's house and had taken the applicant to an unknown destination . It also stated that since his abduction the investigation had no information on the applicant 's fate .","On DATE ORG examined the applicant 's complaint of DATE and dismissed it for the reason that the investigators had already admitted him to the proceedings as a victim . The court specifically indicated that the investigator 's persistent refusal to grant the applicant victim status had been unlawful and asked the former to inform the applicant of the progress in the investigation .","DATE . On CARDINAL DATE the applicant wrote to the district prosecutor 's office , requesting to be provided information on the progress in the investigation and seeking access to the case file .","On DATE the district prosecutor 's office replied to the applicant that the investigation was in progress and that he was to come to the office to obtain access to the case - file materials .","On DATE the applicant again wrote to the district prosecutor 's office , requesting information on the progress in the investigation and the specific investigative steps taken , the name of the investigator in charge of the case , the reasons for the failure to carry out his medical examination and to append to the case file as material evidence the clothes in which he had been ill - treated .","On DATE the district prosecutor 's office granted the applicant 's request of DATE in part concerning his access to the documents from the case file related to the investigative steps taken with the applicant 's participation . It dismissed the remainder of the request and also informed the applicant that on an unspecified date the investigation had been suspended owing to failure to identify the perpetrators .","On DATE the applicant wrote to the district prosecutor 's office . He submitted that he had given his clothes in which he had been illtreated to investigator NORP The latter had requested him to provide those clothes in order to append them to criminal case file no . CARDINAL as material evidence and to carry out a biological forensic examination , which was particularly important in solving the crime . According to the applicant 's letter , NORP had subsequently informed him that the examination of the clothes had been carried out and that it had found on them traces of blood and of tissue fluids . Accordingly , the applicant requested the district prosecutor 's office to clarify whether his clothes had indeed been examined and to inform him of the developments in the investigation .","On DATE the district prosecutor 's office informed the applicant that on an unspecified date the investigation in case no . CARDINAL had been suspended owing to failure to identify the perpetrators . As to the clothes issue , the applicant was to contact the investigator in charge of his case .","On DATE the Leninskiy ORG of ORG in GPE of ORG with ORG of GPE ( \u201c the investigating unit \u201d ) informed the applicant that on DATE it had reopened the investigation in case no . CARDINAL .","On DATE the district prosecutor 's office instituted a criminal investigation into the applicant 's abduction under LAW of LAW ( aggravated kidnapping ) . The case file was given the number DATE .","DATE . On an unspecified date the investigators interviewed the applicant as a witness . He stated that at TIME on DATE a group of armed persons in masks and uniforms had burst into his house . They had put him against the wall and searched him . At about that time his father had gone outside and asked the intruders what was going on . They had replied that they were officials of the ORG but refused to produce any documents . The intruders had then searched the house , without providing any official authorisation , such as an arrest warrant , but had not found anything . After that , despite the applicant 's parents ' attempts to stop them , the armed men had taken the applicant to one of the UAZ vehicles stationed at the gate . They had put a shirt over his head and put him in the vehicle . The applicant had then been taken to an unknown place . He had been led to the fourth floor of an unknown building and handcuffed to a pipe , whereupon the abductors had started beating him and asking whether he knew any rebel fighters . He had replied in the negative . The abductors had tortured him with electric wire , beaten him up with truncheons and had put a plastic bag over his head . On DATE he had been transferred to another place . There he had been kept in a basement , tied to a pole and severely beaten up . For DATE the abductors had tortured the applicant , requesting that he confess to something . Subsequently , he had been returned to the first place of his detention , from where they had taken him to a hospital .","On an unspecified date the investigators also interviewed the applicant 's father . He stated that in TIME of DATE , while he had been at home with his family , CARDINAL armed men in camouflage uniforms and masks had burst into his yard . They had ordered the family to produce their identity papers . The applicant 's father had returned home to fetch them and when he had come back , he had seen the applicant standing against the wall with the intruders pointing their guns at him . When he had asked the intruders what the applicant had done , they had replied that they would take the applicant with them and check on him but had refused to say where . Despite the applicant 's father 's attempts to prevent them from taking the applicant away , the intruders had put him into their vehicle and had driven off . The applicant 's mother , interviewed on an unspecified date , provided a similar account of the events .","On an unspecified date the investigators interviewed the applicant 's neighbour ORG as a witness . She stated that in TIME on DATE she had heard noise and shouting coming from the applicant 's house . Having gone outside , she had seen that several ORG vehicles were parked at the applicant 's house . She had not seen anything else and had learnt about the applicant 's abduction from his relatives .","On unspecified dates the investigators interviewed GPE . , GPE and GPE . as witnesses . The Government did not specify who those persons were but stated that they had given accounts of the events of DATE similar to that given by ORG","On DATE the applicant was granted victim status in the proceedings in case no . CARDINAL . On the same date his forensic medical examination was carried out . According to its conclusions , the applicant had the following injuries : scars on the occipital part of the head , the right thigh and the back of the right hand . However , owing to the time that had elapsed since the infliction of the injuries , it was impossible to establish their origin .","According to the ORG , the investigation in case no . DATE was pending .","Despite specific requests by ORG did not disclose any documents from criminal case no . DATE . They stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature , such as disposition of military and special troops and particulars of their activities , as well as personal data concerning the witnesses or other participants in the criminal proceedings .","In his observations submitted to ORG on DATE the applicant stated that he had been intimidated by ORG agents , referring to the following events described in his written statements of DATE and DATE .","On an unspecified date after the applicant 's release several persons allegedly approached the applicant 's father , telling him not to complain about the applicant 's abduction to the authorities and to be glad that the applicant was alive .","On an unspecified date , during the applicant 's interview at the district prosecutor 's office , an investigator allegedly told him that it was dangerous to try to identify the applicant 's abductors and torturers because they were officials of ORG authorities .","On an unspecified date in DATE , during the applicant 's interview at the district prosecutor 's office , an investigator allegedly told him in a threatening tone that persons in the applicant 's situation were disappearing , that he was lucky to have returned home and that it would be better to close the investigation . When the applicant subsequently went to the district prosecutor 's office , seeking access to the criminal case - file materials , an investigator asked him why he needed those documents and told him that if he wished to complain to ORG , it might end up badly for him . After that , on an unspecified date a group of persons in camouflage uniforms , who were driving a white VAZ-CARDINAL vehicle , allegedly came to the applicant 's parents ' home , introduced themselves as officials of the prosecutor 's office and told the applicant 's brother that only fools were complaining in GPE . Following that , on an unspecified date the applicant was allegedly approached by a local police officer who told him that his fellow colleagues were tired of replying to requests of the prosecutor 's office concerning the applicant 's criminal case and advised the applicant to agree to its termination . In the applicant 's submission , the investigators also insulted his lawyer .","On an unspecified date in DATE a number of persons driving a VAZ-CARDINAL vehicle allegedly came to the applicant 's house . CARDINAL of them wore a camouflage uniform . They told the applicant that he was lucky to be alive and advised him in a threatening tone to write a request for the investigation into his alleged ill - treatment to be closed , to find a job and to live like everyone else .","For an overview of the public statements of ORG for the Prevention of Torture ( \u201c the ORG \u201d ) on the issue of ill - treatment of detainees in GPE by members of law enforcement authorities in the period CARDINAL\u2013CARDINAL , see GPE and GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) .","Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of DATE imprisonment ( Article CARDINAL \u00a7 CARDINAL of LAW ) .","The Code of Criminal Procedure of GPE , in force since DATE ( the CCrP ) , establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual ( Articles CARDINAL and CARDINAL ) . Within DATE after receiving such complaint the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the competent investigative authority . The complainant must be notified of any decision taken .","Article CARDINAL of the ORG provides that data from the preliminary investigation can not be disclosed . Under LAW , information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission .","Article CARDINAL \u00a7 CARDINAL of the LAW of GPE stipulates that everyone has the right to liberty and security . Arrest , placement in custody and custodial detention are permissible only on the basis of a court order . The term during which a person may be detained prior to obtaining such an order can not exceed TIME ( LAW ) . The same principle is proclaimed in LAW ORG , which provides that no one can be arrested or remanded in custody unlawfully , in the absence of a court order and for a period exceeding TIME .","Under LAW of the ORG , an investigating authority can arrest a person on suspicion of having committed a criminal offence punishable by imprisonment ( i ) at the time of the offence or immediately thereafter ; ( ii ) if eyewitnesses pointed to him as the perpetrator of the crime ; or ( iii ) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home .","Within TIME after the delivery of a suspect to an investigating authority , a record of the arrest is to be drawn up , indicating the time and date of its compilation , as well as the date , time , place and grounds for a person 's arrest and other relevant information ( Article QUANTITY CARDINAL ) . A prosecutor is to be informed in writing about the arrest within TIME and the suspect is to be granted access to a lawyer and interviewed ( Article QUANTITY and CARDINAL ) . If no court order to place the person in custody or to extend his arrest is issued or received within TIME , the detained suspect is to be immediately released ( LAW ) . Upon release , he is to be provided with a certificate indicating the authority which had arrested him , the date , time , place and legal grounds for detention , as well as the date , time and grounds for the release ( LAW ) ."],"violated_articles":["13","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-118503","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2013,"docname":"NIEMINEN v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;P\u00e4ivi Hirvel\u00e4;Paul Mahoney","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr Jaakko Tuutti , a lawyer practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , in his own apartment , the applicant stabbed another person with a knife . The victim called the police . When the police patrol arrived , they found a person with a deep , bleeding wound in front of the applicant \u2019s home who told them that he had been stabbed in the applicant \u2019s home by the applicant . As it was not known whether other persons were in danger , the police officers entered the applicant \u2019s home in order to prevent any possible further act or event which might seriously threaten another person \u2019s life , personal liberty or health . In the apartment they found nobody but the applicant . He was severely intoxicated , a breathalyser showed a result of CARDINAL per mill , and he was not able to give a statement . He was taken to the local police station . The police officers found and seized a knife with a QUANTITY blade covered in blood .","On DATE the applicant was questioned on suspicion of aggravated assault ( t\u00f6rke\u00e4 pahoinpitely , grov misshandel ) . He was released on DATE .","On DATE the applicant was charged with aggravated assault .","On DATE the GPE ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) dismissed all charges against the applicant . It found that the applicant had not intentionally hurt the other person and that the latter \u2019s injury could have been caused accidentally as both the applicant and the victim had been severely intoxicated . No motive for the act could be established . The applicant and the victim were still good friends and had even come to the oral hearing together .","No appeal was made against this judgment and it thus became final .","According to LAW ( perustuslaki , grundlagen , Act no . CARDINAL\/CARDINAL ) , the sanctity of everyone \u2019s home is guaranteed . Measures derogating from this right , and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime , must be laid down by an Act .","Section QUANTITY of LAW ( poliisilaki , polislagen , Act no . CARDINAL ) provides the following :","\u201c On the order of a commanding police officer , and in urgent cases even without such an order , police officers have the right to enter a building , other domestic premises or a vehicle if there is good reason to assume that an act or event causing a serious threat to life , personal liberty or health , or notable damage to property or the environment is taking place or about to take place . A further precondition is that the measure is essential to prevent danger or to search and take possession of explosives , weapons or other dangerous substances or objects . \u201d","LAW , section CARDINAL , subsection CARDINAL , of LAW ( pakkokeinolaki , tv\u00e5ngsmedelslagen , Act no . CARDINAL ) provides that a search may be conducted , inter alia , if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds CARDINAL months\u2019 imprisonment .","NORP In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in criminal proceedings , that it may have been removed from someone as a result of a criminal offence or that the court may order its forfeiture ( LAW , section CARDINAL , of LAW ) .","A civil servant having the power to arrest a person may decide to conduct a search at a person \u2019s home . A police officer may conduct a search even without a warrant if it is intended , inter alia , to locate a person to be apprehended , arrested or detained or for seizure of an object that has been used immediately before in a crime . A police officer may conduct a search without a warrant also on other occasions if the matter can not wait ( Chapter CARDINAL , section CARDINAL ) .","At the time of the events there was no access to a court as concerned a search but only in respect of a seizure ( LAW , LAW , subsection CARDINAL ) .","According to LAW , section CARDINAL , subsection CARDINAL , of LAW ( rikoslaki , strafflagen , Act no . CARDINAL\/CARDINAL as modified by Act no . CARDINAL\/CARDINAL ) , a person can be sentenced for aggravated assault to imprisonment for a minimum term of DATE and a maximum of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-66606","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2004,"docname":"TOTH v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON PERSON , is a NORP citizen who was born in DATE and is presently serving a sentence in LOC .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the competent investigating judge opened an investigation against the applicant on a charge of murder . The applicant was indicted by the GPE State Attorney \u2019s ORG dr\u017eavno odvjetni\u0161tvo ORG ) on DATE .","On DATE the investigating judge opened another investigation against the applicant , charging him with the attempted murder of a judge . He was indicted on DATE .","The CARDINAL criminal proceedings were subsequently joined .","On DATE ORG ( PERSON u ORG ) convicted the applicant of both offences .","On DATE ORG ( PERSON ) upheld the first - instance conviction with regard to the murder charge . This part of the judgment became final . At the same time , ORG quashed part of the judgment relating to the attempted murder and remitted the case .","In the resumed proceedings , on DATE ORG convicted the applicant of attempted murder and sentenced him to CARDINAL years\u2019 imprisonment .","On appeal , ORG upheld the first instance judgment on DATE .","The applicant states that he filed a constitutional complaint with ORG on DATE , alleging that both his convictions had been based on evidence obtained illegally and thus his right to a fair trial had been violated . His constitutional complaint concerned both convictions . He maintains that his complaint was never adjudged by ORG .","The Government admit that the applicant \u2019s letter to ORG dated DATE was titled \u201c a constitutional complaint \u201d . However , they submit that the applicant had already lodged a constitutional complaint on DATE and that his letter of CARDINAL DATE was merely an extension of his previous complaint , seeking to include the proceedings concerning the murder , which had ended in DATE . It was thus regarded by ORG as a new submission in an already existing case .","Moreover , the Government submit CARDINAL decisions of ORG , by which it adjudged the entirety of the complaints raised by the applicant in his submission dated DATE with regard to both proceedings .","In its decision dated DATE , ORG dismissed the applicant \u2019s complaint , finding no violation of his right to a fair trial in the proceedings concerning the attempted murder .","In its decision dated DATE ORG dismissed the applicant \u2019s complaint relating to the fairness of the proceedings concerning the murder , as it had been lodged outside the statutory time - limit ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58990","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2000,"docname":"CASE OF VACCARO v. ITALY","importance":4,"conclusion":"Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Christos Rozakis","text":["The applicant was detained on DATE further to an order issued on DATE by the preliminary investigations judge ( \" giudice per le indagini preliminari \" ) attached to ORG . The applicant was accused of belonging to a ORG type association , drug - trafficking , unlawful possession of arms and forgery . The accusation was based on the statements of a certain Mr M. , a pentito ( a mafioso who had decided to co - operate with the authorities ) .","In the reasons for the order of DATE , the preliminary investigations judge found that PERSON 's statements should be considered credible and to have been made voluntarily . They could therefore constitute strong evidence of guilt ( \" gravi indizi di colpevolezza \" ) , which is a prerequisite under NORP law for remanding an accused in custody . The judge also considered that these statements were corroborated by the results of criminal investigations concerning similar crimes , as well as by statements made by other pentiti . Furthermore , pursuant to section CARDINAL of the Code of Criminal Procedure ( \u201c GPE di GPE \u201d , hereinafter called LAW ) , the nature and the seriousness of the offences raised the rebuttable presumption that the conditions for remand in custody laid down in CARDINAL ( risk of tampering with evidence , of absconding and of re - offending ) applied .","On DATE , the preliminary investigations judge committed the applicant and CARDINAL other persons for trial before ORG .","In a judgment of DATE , ORG , acting in accordance with section CARDINAL of the CPP ( which provided that the judge who found himself incompetent ratione loci should forward the case - file to the competent judge ) , declared that the case was outside its territorial jurisdiction and ordered that the case - file be transmitted to ORG .","NORP In an order of DATE , ORG confirmed the applicant \u2019s detention on remand .","In an order of DATE , the President of ORG committed the accused for trial and scheduled DATE first hearing for DATE .","In an order of DATE , ORG granted the prosecution 's request to suspend the maximum periods of detention on remand for the duration of the trial and deliberations at first instance , pursuant to section CARDINAL(CARDINAL ) CPP . It considered that , given the fact that CARDINAL witnesses had to be examined and a considerable volume of documents , including a number of experts ' opinions , had to be produced , the proceedings could be regarded as being particularly complex . In the reasons for that order , ORG specified that , according to ORG well - established case - law , the suspension should cover the whole duration of the trial and not only DATE of the actual hearings .","On DATE , the applicant lodged an application for immediate release with ORG . He observed that the interpretation followed in the order of DATE - according to which the suspension of the maximum periods of detention on remand should cover periods of inactivity between hearings - was inconsistent with the relevant provisions of the ORG , with the overall purpose of LAW and with ORG , CARDINAL \u00a7 DATE and CARDINAL of LAW .","In an order of DATE , ORG , observing that the maximum periods of detention on remand had not been overstepped , dismissed the applicant 's claim .","On DATE , the applicant appealed against that order . ORG , sitting as the authority with jurisdiction to decide on measures affecting the liberty of persons ( \" tribunale della libert\u00e0 e del riesame \" ) , dismissed the applicant 's appeal in an order of DATE .","On DATE , the applicant appealed on points of law .","In a decision of DATE , ORG , considering that the lower court had not duly indicated the specific and concrete grounds for the decision to suspend the maximum periods of detention on remand , annulled the impugned order and referred the case back to ORG .","In a decision of DATE , filed with the registry on DATE , ORG confirmed ORG order of DATE and declared that the doubts raised by the applicant as to the constitutionality of the relevant provisions of the CPP were manifestly ill - founded . ORG observed that the length of the proceedings was mainly due to the complexity of the case , to the number of parties and witnesses as well as to the circumstances preventing the attendance of the accused 's lawyers and of ORG judges . Furthermore , no significant periods of inactivity seemed to have occurred during the trial , given the fact that CARDINAL hearings had taken place from DATE until DATE . However , the court noted that some hearings had been adjourned for reasons which were not imputable to the applicant or to the requirements of the fair administration of justice in criminal cases , such as lawyers ' strikes , ORG illness and a lack of a proper hearing - room . It consequently considered that a global delay of DATE should be deducted from the maximum period of detention on remand , which had not been overstepped , even taking into account such deduction .","On DATE , the applicant appealed on points of law against that decision . In a decision of CARDINAL DATE , filed with the registry on DATE , ORG declared the applicant 's appeal inadmissible as manifestly ill - founded .","In the meanwhile , CARDINAL trial hearings had taken place before FAC . CARDINAL witnesses had been heard and a number of expert opinions were examined .","During the trial , the lawyers of the accused had contested the lawfulness of the order for committal for trial . They had noted that in a judgment of DATE , ORG had declared that section CARDINAL of the CPP was unconstitutional and that the incompetent judge should forward the case - file to ORG ( and not to the competent judge , as previously provided ) . Given the fact that in its judgment of CARDINAL DATE ORG had ordered that the case - file be transmitted to ORG , the lawyers had requested that the whole proceedings be declared null and void .","On DATE , the applicant \u2019s lawyer had declared that due to family reasons , he was unable to take part in the hearings scheduled in DATE and had requested to adjourn the case until DATE .","In a judgment of DATE , ORG had sentenced the applicant to DATE and DATE imprisonment for drug - trafficking and had acquitted him in respect of the remainder of the charges . The court had also ordered that the applicant 's case - file be transmitted to ORG in order to evaluate the desirability of instituting fresh proceedings against him for belonging to a ORG type association and drug - trafficking , crimes which appeared to have been committed in GPE .","As concerned the question of the lawfulness of the order for committal for trial , ORG had observed that the decision of ORG had been adopted on DATE , while the invoked judgment of ORG had been published only on DATE . Therefore , in accordance with the principle tempus regit actum , the finding of the unconstitutionality of section CARDINAL of the CPP could not retroactively affect the lawfulness of ORG judgment .","The applicant lodged an appeal with ORG .","In a judgment of CARDINAL DATE , filed with the registry on DATE , ORG declared that the committal for trial and the first - instance judgment were null and void and ordered that the case - file be transmitted to ORG . It observed , in particular , that the finding that a provision was unconstitutional should in principle apply to all pending proceedings . Therefore , after ORG judgment of DATE , ORG had no power to commit the accused for trial and its President \u2019s order of DATE as well as all the acts done before it were invalid .","On DATE , the applicant was released ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23945","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2004,"docname":"FRATRIK v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . The respondent Government were represented by their Agent , Mr P. Vr\u0161ansk\u00fd , succeeded by Mr P. ORG in that function .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was granted a trade licence ( \u017eivnostensk\u00fd list ) entitling him , inter alia , to run a business in musical instruments . He thus became a selfemployed person . On CARDINAL DATE the applicant registered himself with the health insurance fund ( nemocensk\u00e9 poistenie ) and with the pension fund ( d\u00f4chodkov\u00e9 zabezpe\u010denie ) .","In DATE , for income tax purposes , the applicant declared to have earned an DATE income of CARDINAL NORP korunas ( SKK ) from his selfemployment activity . In DATE he declared an DATE income of SKK CARDINAL,CARDINAL , in DATE SKK CARDINAL,CARDINAL , in DATE SKK CARDINAL,CARDINAL and in DATE SKK CARDINAL,CARDINAL .","On DATE ORG no . CARDINAL Coll . ( PERSON o NORP pois\u0165ovni - \u201c the LAW \u201d ) entered into force . This Act regulates inter alia the obligation to contribute to the health insurance fund and the pension fund , the calculation of these contributions and the modalities of their payment . Self - employed persons , like the applicant , are required to pay contributions to both funds , the amount of which is calculated on the basis of their average DATE taxable income gained during DATE . The LAW also defines the minimum and the maximum amount of such contributions ( see under \u201c Relevant domestic law \u201d below ) .","On DATE the PERSON branch office ( pobo\u010dka ) of ORG ( Soci\u00e1lna pois\u0165ov\u0148a ) ordered the applicant to pay within DATE a contribution of SKK CARDINAL,CARDINAL to the health insurance fund and the pension fund for the period between on DATE and DATE . This amount was composed of SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month ) , SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month until DATE and SKK CARDINAL per month as from DATE ) , and SKK DATE ( i.e. SKK CARDINAL per month ) . The applicant was informed that failure to pay or a late payment entailed the imposition of a fine .","The applicant filed an appeal with ORG ( \u00fastredie ) of ORG arguing that , given his low income , he could not afford to pay these contributions . On DATE ORG upheld the decision of its PERSON branch .","The applicant filed an administrative law appeal with ORG ( PERSON s\u00fad ) against the decisions taken by ORG . The applicant submitted that his income was below the statutorily defined minimal living standard ( \u017eivotn\u00e9 minimum ) and argued that , in these circumstances , he should be exempted from his payment obligations under LAW . In his opinion , the application of this LAW in his personal situation was unethical and unconstitutional .","In its judgment of CARDINAL DATE ORG upheld the challenged decisions . No appeal was available against this judgment . It became final and binding on DATE when it was served on the applicant .","In DATE and in DATE the applicant declared to the income tax authorities that he had earned an DATE income of SKK CARDINAL,CARDINAL and SKK CARDINAL from his selfemployment activity .","On DATE the PERSON branch office of ORG ordered the applicant to pay within DATE a contribution in the amount of SKK CARDINAL,CARDINAL to the health insurance fund and the pension fund for the period DATE and DATE . This amount was composed of SKK CARDINAL,CARDINAL payable for DATE ( i.e. SKK CARDINAL per month as from DATE until DATE ) , SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month ) and SKK CARDINAL,CARDINAL for DATE ( i.e. SKK CARDINAL per month until DATE ) .","On DATE the PERSON branch office of ORG ordered the applicant to pay a fine of SKK CARDINAL for late payment of his contributions to the health insurance fund and the pension fund for DATE .","On the applicant 's request , his trade licence was cancelled on DATE . The applicant has been unemployed since .","On DATE the applicant was informed by a judicial enforcement officer that enforcement proceedings had been brought against him in order to obtain payment of the contributions due as well as the fines for late payment . According to the applicant , he was thus forced to contract debts in order to pay the amounts due .","On DATE , after having conducted an audit of the applicant 's situation , the PERSON branch office of ORG found that the applicant still owed a total amount of SKK CARDINAL in fines for late payments of his contributions to the social funds for DATE .","Under LAW CARDINAL ( b ) persons who hold a trade licence for carrying out a small trade ( \u017eivnos\u0165 ) are considered selfemployed persons .","Section CARDINAL \u00a7 CARDINAL ( c ) provided that selfemployed persons took part in and were entitled to benefit from the pension schemes . These pension schemes comprise , inter alia , the oldage pension , the ( partial ) invalidity pension , and the widow pension ( Section CARDINAL ) .","Sections ORG and the following govern the participation of selfemployed persons in the health insurance and the pension insurance schemes . Under Section CARDINALb \u00a7 CARDINAL selfemployed persons are entitled to health insurance benefits such as sickness benefits ( nemocensk\u00e9 ) , maternity benefits ( pe\u0148a\u017en\u00e1 pomoc v materstve ) , and spa treatment benefits ( k\u00fape\u013en\u00e1 starostlivos\u0165 ) .","According to Section CARDINALba \u00a7 CARDINAL , the sickness benefits for selfemployed persons are paid on a daily basis . Under Section CARDINALba \u00a7 \u00a7 CARDINAL and CARDINAL the amount of such benefits is calculated as a DATE average of the \u201c assessment basis \u201d ( see below ) .","Under Section CARDINAL \u00a7 \u00a7 CARDINAL ( b ) and CARDINAL selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund .","According to Section CARDINAL \u00a7 CARDINAL the level of these contributions are a \u201c percentage \u201d of the \u201c assessment basis \u201d ( vymeriavac\u00ed z\u00e1klad ) , which is PERCENT of the average DATE taxable income earned by a self - employed person during DATE ( Section CARDINAL \u00a7 CARDINAL in conjunction with Section CARDINAL \u00a7 CARDINAL of the Act ) .","The \u201c percentages \u201d applicable to selfemployed persons varied in the course of the material period . Until DATE it was PERCENT for the health insurance fund and PERCENT for the pension fund . Since DATE until DATE the applicable \u201c percentages \u201d were respectively PERCENT and PERCENT . Since DATE these \u201c percentage \u201d changed again to PERCENT , respectively .","However , regardless of income actually earned by a selfemployed person during DATE , Section CARDINAL \u00a7 CARDINAL provides that his or her personal \u201c assessment basis \u201d can not be lower than the statutorily defined \u201c minimal assessment basis \u201d and can not be higher than the statutorily defined \u201c maximal assessment basis \u201d . The minimal basis is equal to the statutorily defined \u201c minimum wage \u201d ( see below ) and the maximal basis is this \u201c minimum wage \u201d multiplied by CARDINAL .","Until DATE , the \u201c minimum wage \u201d was defined by the governmental Decree no . PERSON . on PERSON ( ORG vl\u00e1dy o minim\u00e1lnej mzde ) , as amended . DATE until DATE the \u201c minimum wage \u201d was fixed at SKK DATE .","As from DATE the \u201c minimum wage \u201d was regulated by the Act no . CARDINAL\/CARDINAL Coll . on the Minimum Wage ( PERSON o minim\u00e1lnej mzde ) , as amended . It was increased to LAW CARDINAL,CARDINAL DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57870","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1994,"docname":"CASE OF RAIMONDO v. ITALY","importance":2,"conclusion":"Violation of P1-1;Violation of P4-2;No violation of P1-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"C. Russo","text":["Mr PERSON , a building entrepreneur , lived in PERSON ( PERSON ) until his death on DATE .","Criminal proceedings were brought against him as he was suspected of belonging to a mafia - type organisation operating in the ORG region . At the same time various preventive measures were taken concerning him .","On DATE ORG issued a warrant for the arrest of CARDINAL persons including the applicant . After initially evading arrest under this warrant , the applicant gave himself up to the authorities on DATE and was immediately remanded in custody .","The investigation was closed on DATE and PERSON was committed for trial in ORG with CARDINAL co - defendants . His detention on remand was replaced by house arrest ( arresti domiciliari ) .","On DATE , at the first hearing , ORG ordered the joinder of the case with CARDINAL others and directed that certain documents be included in the file . It then adjourned the proceedings to DATE .","On DATE ORG acquitted PERSON on the ground of insufficient evidence ( assoluzione per insufficienza di prove ) and revoked the order placing him under house arrest .","Giving judgment on DATE on the appeals of the public prosecutor and PERSON , ORG acquitted the latter on the ground that the material facts of the offence had not been established ( perch\u00e8 il fatto non sussiste ) . No appeal was filed in ORG .","On DATE ORG applied to ORG for an order placing Mr PERSON under special police supervision and for the preventive seizure of a number of assets with a view to their possible confiscation ( Act no . CARDINAL of DATE and Act no . CARDINAL of CARDINAL DATE , as amended by Act no . CARDINAL of CARDINAL DATE - see paragraphs QUANTITY below ) . He based his application on a report by the ORG carabinieri dated DATE .","On CARDINAL DATE ORG ordered the seizure of CARDINAL items of real property ( CARDINAL plots of land and CARDINAL buildings ) and of CARDINAL vehicles , all of which appeared to be at the applicant \u2019s disposal . The measure was entered in the relevant public registers on CARDINAL DATE .","On DATE the ORG revoked the seizure of certain property belonging to third parties ; on the other hand , it ordered the confiscation of some of the buildings seized of which the applicant and his wife were the owners and CARDINAL vehicles , on the ground that it had not been proved that the assets in question had been \" lawfully acquired \" . The confiscation was recorded in the register on CARDINAL DATE .","By the same decision Mr PERSON was placed under special police supervision , which however did not become effective until DATE , the day on which he was acquitted by ORG ( see paragraph CARDINAL above ) ; he was also required to lodge a security of MONEY as a guarantee to ensure that he complied with the constraints attaching to this measure , namely a prohibition on leaving his home without informing the police ; an obligation to report to the police on DATE indicated to that effect ; an obligation to return to his house by TIME and not to leave it before TIME unless he had valid reasons for doing so and had first informed the relevant authorities of his intention .","On an appeal by the applicant , ORG of Appeal gave judgment at a private hearing on DATE . It annulled the special supervision measure and ordered the restitution of the security and the property seized and confiscated . Its decision ( decreto ) referred to the \" disconcertingly casual way in which the contested preventive measures concerning the person and property of PERSON had been adopted thereby effectively decreeing his civil and economic death \" .","The decision was filed with the registry on DATE and signed by the relevant official of the prosecuting authority on DATE . Again on DATE ORG registry notified it to the competent police authorities ( questura ) who , on DATE , advised the local carabinieri of the decision . The latter informed the applicant on DATE .","The decision became final on DATE .","The revocation of the seizure of the real property and of the confiscation of the vehicles was entered in the relevant registers on DATE ( real property ) , DATE ( CARDINAL cars and a van ) and DATE ( a lorry ) .","The security was returned to the applicant on DATE .","As regards the real property that had been confiscated , the applications for the entry in the register of the revocation of the measure are dated DATE .","Act no . CARDINAL of DATE ( \" LAW \" ) provides for various preventive measures in respect of \" persons presenting a danger for security and public morality \" . The relevant provisions are summarised in the PERSON v. GPE judgment of DATE ( Series A no . CARDINAL , pp . CARDINAL , \u00a7 \u00a7 DATE ) :","\" CARDINAL . Under section CARDINAL , the Act applies to , amongst others , ... individuals who , by reason of their behaviour and style of life ( tenore di vita ) , must be considered as habitually living , even in part , on the proceeds of crime or on the rewards of complicity therein ( con il favoreggiamento ) , or whose outward conduct gives good reason to believe that they have criminal tendencies ( che , per le manifestazioni cui abbiano dato luogo , diano fondato motivo di ritenere che siano proclivi a delinquere ) .","The Chief of Police [ ( questore ) ] may send such persons a warning ( diffida ) ...","...","...","... [ such a person ] may , under LAW , be placed under special police supervision ( sorveglianza speciale della pubblica sicurezza ) ; if need be , this may be combined either with a prohibition on residence in CARDINAL or more given districts or provinces or , in the case of a particularly dangerous person ( particolare pericolosit\u00e0 ) , with an order for compulsory residence in a specified district ( obbligo del soggiorno in un determinato comune ) .","Only ORG of the chief town of the province has power to order these measures ; it will do so on the basis of a reasoned application by the [ questore ] to its president ( section CARDINAL , first paragraph ) . ORG must give a reasoned decision ( provvedimento ) in chambers within DATE . It will first hear ORG department and the person concerned , the latter being entitled to submit written pleadings and to be assisted by a lawyer ( section CARDINAL , second paragraph ) .","The prosecuting authorities and the person concerned may , within DATE , lodge an appeal which does not have suspensive effect ; ORG has to give a reasoned decision ( decreto ) in chambers within DATE ( section CARDINAL , fifth and sixth paragraphs ) . That decision may in turn and on the same conditions be the subject of a further appeal to ORG , which must give its ruling in chambers within DATE ( section CARDINAL , seventh paragraph ) .","DATE . When adopting one of the measures listed in section CARDINAL , ORG will specify for how long it is to remain in force - not less than one and not DATE ( section CARDINAL , fourth paragraph ) - and will give directives with which the person in question must comply ( section CARDINAL , first paragraph ) .","... \"","Act no . CARDINAL of CARDINAL DATE ( \" LAW \" ) supplements LAW by adding clauses directed against the ORG ( disposizioni contro la mafia ) . Section CARDINAL states that it is applicable to persons - such as Mr PERSON - against whom there is evidence showing that they belong to \" mafia - type \" groups ( indiziati di appartenere ad associazioni mafiose ) .","The above legislation was strengthened by Act no . CARDINAL of CARDINAL DATE ( \" LAW \" ) which inserted , inter alia , a section QUANTITY . It makes provision for various measures to be used in the course of proceedings relating to the application of the preventive measures available under LAW in respect of a person suspected of belonging to such an organisation :","\" ... ORG may issue a reasoned decision , even of its own motion , ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted , when there is sufficientcircumstantial evidence , such as a considerable discrepancy between his lifestyle and his apparent or declared income , to show that the property concerned forms the proceeds from unlawful activities or their reinvestment .","Together with the implementation of the preventive measure the ORG shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired . Where the inquiries are complex , this measure may also be taken at DATE , but not DATE after the date of the seizure .","The ORG shall revoke the seizure order when the application for preventive measures is dismissed or when it has been shown that the property in question was lawfully acquired . \"","In its report ( paragraph CARDINAL ) , the ORG sets out a summary of the case - law in this area :","\" ... The existence of preventive measures is not in itself contrary to LAW . ORG has ruled that the basis for these measures is the need to guarantee the orderly and peaceful course of social relations , not only through a body of legislation penalising unlawful acts , but also through provisions intended to prevent the commission of such acts ( ORG , judgment no . CARDINAL of DATE and judgment no . CARDINAL of DATE ) .","Because of their particular object , preventive measures do not relate to the commission of a specific unlawful act but to a pattern of behaviour defined by law as conduct indicating the existence of danger to society ( ORG , judgment no . CARDINAL of DATE ) .","Consequently , in the NORP legal system , there is a fundamental difference between criminal penalties and preventive measures . The former constitute the response to an unlawful act and the consequences of that act ; the latter are a means of preventing the commission of such an act .","In other words , a criminal penalty relates to an offence already committed , whereas a preventive measure is intended to reduce the risk of future offences ( see , mutatis mutandis , ORG , judgment no . CARDINAL of DATE , concerning security measures ) .","...","Because criminal penalties and preventive measures are essentially different , not all the constitutional principles which should underpin the former necessarily apply to the latter . For example , the presumption of innocence enunciated in LAW does not concern preventive measures , which are not based on the criminal liability or guilt of the person concerned ( ORG , judgment no . CARDINAL of DATE ) .","Similarly , such measures do not fall within the scope of LAW para . CARDINAL of the LAW , which prohibits the retroactive application of criminal provisions . The violation of this principle has been alleged on a number of occasions in ORG with regard to confiscation orders under LAW . ORG has ruled , firstly , that the above principle is not applicable to preventive measures ( see , for example , ORG , GPE judgment of DATE ) . Secondly , ORG has pointed out that the impugned provision is not in fact retroactive , as it relates to the property in the possession of the person concerned at the time when confiscation is ordered ORG , PERSON judgment of CARDINAL DATE ) and to the unlawful use of that property after its entry into force ( Court of Cassation , ORG judgment of CARDINAL DATE ) .","In spite of these limitations , preventive measures remain open to thorough scrutiny of their compatibility with LAW .","As far back as DATE ORG ruled that in no case could the right to liberty be restricted except where such restriction was prescribed by law , where lawful proceedings had been instituted to that end and where the reasons therefor had been set out in a judicial decision ( ORG , judgment no . CARDINAL of DATE ) .","It subsequently ruled that preventive measures could not be adopted on the basis of mere suspicion and are justified only when based on the objective establishment and assessment of facts which reveal the behaviour and lifestyle of the person concerned ( ORG , judgment no . CARDINAL of DATE ) .","More recently it confirmed that the constitutionality of preventive measures still depends on respect of the rule of law and the possibility of applying to the courts for a remedy . Furthermore , the above CARDINAL conditions are closely linked . Thus it is not enough for the law to indicate vague criteria for the assessment of danger ; it must set them forth with sufficient precision to make the right of access to a court and adversarial proceedings a meaningful one ( Constitutional Court , judgment no . CARDINAL of DATE ) .","The case - law of ORG is in this respect entirely consistent with that of ORG ; it affirms quite clearly that proceedings for the application of preventive measures must be adversarial and conducted with respect for the rights of the defence , any violation of those rights entailing their nullity ( see , for example , ORG , judgment no . CARDINAL of DATE in the PERSON case ) .","ORG has dismissed a number of complaints alleging the unconstitutionality of the seizure and confiscation measures provided for in section CARDINAL ter of the CARDINAL Act . In particular , it has ruled that the presumption concerning the unlawful origin of the property of persons suspected of belonging to organisations of the mafia type is not incompatible with LAW , which guarantees the rights of the defence , since confiscation can only take place when there is sufficient circumstantial evidence concerning the unlawful origin of the property in question and in the absence of a rebuttal ( Court of Cassation , previously cited ORG judgment ) .","...","With regard to the compatibility of seizure and confiscation measures with the right to free exercise of private economic activities and the right to peaceful enjoyment of private property ( ORG CARDINAL and CARDINAL of the LAW ) , ORG has ruled that these rights are not absolute and may be limited in accordance with the general interest . This applies in connection with possessions of unlawful origin or their use ( Court of Cassation , previously cited PERSON and ORG judgments ) .","... \"","In its opinion no . CARDINAL\/CARDINAL of CARDINAL DATE the PERSON stated that \" although confiscation by definition enables the ORG to acquire the item of property in question ... , it does not in itself have the effect of transferring ownership to the public authorities ... \" . It will only have such effect if in addition the decision ordering it is irrevocable ( GPE ORG , order of DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82202","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF SKRZYNSKI v. POLAND","importance":3,"conclusion":"Violation of P1-1;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","Since DATE the applicant has owned a plot of land located in the municipality of PERSON , near GPE . It is listed in the local land register under entry no . DATE .","NORP Under the local land development plan adopted in DATE , which was in force in DATE when the applicant acquired the land concerned , it was situated in an area described as \u201c the agricultural area without the right to construction , reserved for a future zone designated for recreational purposes \u201d . The DATE plan remained in force until DATE .","On DATE ORG of Milan\u00f3wek , in a public procedure provided for by relevant planning legislation , adopted a resolution by which the local land development plan was accepted . The applicant 's land was included in an area in which a ring - road and a hospital were to be constructed in the future .","The applicant and his neighbours lodged a complaint against the ORG 's resolution with the GPE Governor , arguing inter alia , that the plan breached their right to the peaceful enjoyment of their possessions . They submitted that the local land development plan had been prepared in a manner which failed to take into consideration and to reconcile various interests of the municipality and the local owners . As a result , the plan which had been adopted was unreasonable and did not comply with standards of good land administration .","They were informed that ORG was competent to examine their complaint .","By a judgment of CARDINAL DATE ORG dismissed the complaint , finding that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan . It noted that restrictions on ownership imposed by the land development measures were not per se incompatible with the nature of ownership as guaranteed by LAW .","On DATE the applicant requested that an initial approval for a development project on his land be issued .","On DATE the applicant submitted to the Mayor of PERSON a request that his land either be acquired by the municipality or that he be given another plot of land .","In a letter of DATE ORG informed the applicant that his request of DATE had not been examined as he had failed to submit an appropriate plan with it . He was further informed that the validity of the DATE plan had been prolonged by ORG for DATE , until DATE .","On DATE the Marshal of the Mazowsze Region informed the applicant that the construction of the roadway was undoubtedly in the interests of the inhabitants of PERSON , but that no funding would be provided for it in the financing scheme for the regional land development plan until DATE .","On DATE the applicant renewed his request for an initial approval for a development project on his land . He wished to have a house built on it .","On DATE the Mayor of PERSON refused his request , finding that the project as submitted by the applicant was incompatible with the local land development plan .","The applicant appealed , submitting that there were no immediate plans to build the road , there was no financing earmarked for it in the relevant public budgets , and that his right to the peaceful enjoyment of his property had been breached by the continuing restrictions on the use of his land in view of its future expropriation at some undetermined point of time .","On DATE ORG dismissed the applicant 's appeal on the ground that his construction project was incompatible with the land development plan for the municipality of PERSON .","The applicant appealed to ORG , arguing that since the adoption of the DATE plan he had been restricted in the use of his property ; that the municipality had refused to acquire his land or to provide him with another plot ; and that this amounted to a breach of his right to the peaceful enjoyment of his possessions as well as of various provisions of LAW . He stressed that under the applicable laws he did not have any right to compensation for the protracted restrictions on the exercise of his ownership .","In DATE the applicant requested the municipality CARDINAL times to either acquire his land or to grant him another plot . His requests were unsuccessful .","On DATE ORG dismissed his appeal against the decision of DATE . The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision . It found that the decision was lawful as it was common ground between the parties that the applicant 's construction project was incompatible with the local land development plan .","It further noted that the applicant had complained that his situation could not be seen as being compatible with the LAW , given that owners affected by plans adopted prior to the LAW 's entry into force could not benefit from compensation claims provided for by section CARDINAL of the DATE LAW . The court referred to the judgment of ORG given in DATE ( see paragraph DATE below ) . ORG had examined the compatibility with LAW of section CARDINAL \u00a7 CARDINAL of LAW DATE insofar as it excluded the application of the owners ' right to compensation provided for in section CARDINAL of that Act to land development plans adopted before DATE . It found that this provision was compatible with the LAW .","ORG observed that it was not its task to amend or to criticise existing laws and that it was bound by this provision . Otherwise there were no grounds on which to consider that the decision challenged by the applicant was unlawful .","On DATE the validity of the DATE land development plan expired .","On DATE the applicant was granted an initial planning permission ( decyzja o warunkach zabudowy ) and on DATE a final building permission ( zezwolenie na budow\u0119 ) .","DATE to DATE questions of land development were governed by LAW of DATE .","On DATE a new LAW was enacted . It entered into force on DATE .","On DATE ORG passed a law amending LAW DATE .","On DATE a new LAW was enacted which repealed LAW .","Under LAW of DATE owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .","Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner 's request , or provide compensation for the damage caused by the designation .","NORP However , pursuant to LAW , these obligations and the corresponding claims of the owners applied only to plans adopted after LAW had entered into force , i.e. to plans adopted by local municipalities after DATE .","Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE .","In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE until DATE . Again , on DATE , ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .","ORG Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .","Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by the CARDINAL Act . Pursuant to LAW , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts . It would appear that the operation of LAW is not retroactive , thus limiting the scope of any such claims to the period after the adoption of LAW .","Other relevant legislative provisions are extensively set out in the ORG 's judgment of DATE in the case of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL ) .","In its judgment of CARDINAL DATE ( K CARDINAL\/CARDINAL ) , ORG examined the request submitted to it by the ORG to determine the compatibility with LAW of section CARDINAL \u00a7 CARDINAL of LAW DATE insofar as it excluded the application of section CARDINAL of that Act to land development plans adopted before DATE . The court referred to its established case - law to the effect that ownership could not be regarded as ius infinitivum . Consequently , its exercise was normally restrained by many legal and practical considerations , including the necessity of balancing the owners ' interests against those of other persons . Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership . In particular , owners of properties \u201c frozen \u201d for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans . This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75480","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF SHATUNOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - State to secure enforcement of judgment debt;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in Kursk .","The applicant worked as a forwarding agent for a catering enterprise . In DATE the enterprise \u2019s director instructed him to sell QUANTITY of flour . The applicant sold the flour , purchased certain foodstuffs with the money thus raised and paid the transportation expenses . The director refused to accept the foodstuffs and asked the applicant to remit the value of the flour . The applicant sold the foodstuffs but the amount raised was insufficient to cover that value . The applicant offered various other goods in payment of the outstanding amount . The director refused to accept them . It appears that the applicant was subsequently dismissed . In DATE criminal proceedings for embezzlement were brought against the applicant . From DATE to CARDINAL DATE he was held in pre - trial detention .","On an unspecified date the applicant fully reimbursed the value of the flour .","On DATE ORG of Kursk convicted the applicant of embezzlement . He was given a DATE suspended prison sentence and fined MONEY ( RUR ) , which he paid .","ORG upheld the judgment on DATE .","On DATE , following an application for supervisory review lodged by the Deputy President of ORG , the ORG of the Kursk ORG quashed the sentence and terminated the criminal proceedings against the applicant on the basis that there was no indication that an offence had been committed .","On DATE the applicant brought proceedings against ORG seeking compensation for pecuniary and non - pecuniary damage caused by the criminal proceedings against him , in particular as a result of his detention DATE and DATE and his conviction of CARDINAL DATE .","ORG of Kursk partially granted the claim for damages on DATE .","On DATE the ORG quashed the judgment and remitted the case for a fresh examination .","ORG of Kursk partially granted the claim for damages on DATE .","On DATE the ORG once more quashed the judgment and remitted the case for a fresh examination .","On DATE ORG of Kursk partially granted the claim for damages . The court awarded the applicant ORG CARDINAL in damages and RUR CARDINAL,CARDINAL for costs . The judgment stated :","\u201c Under LAW , damage caused to a citizen as a result of unlawful conviction , unlawful criminal prosecution , unlawful application of detention as a preventive measure ... shall be compensated at the expense of the ORG of GPE . ...","Under LAW compensation for non - pecuniary damage shall be effectuated irrespective of the fault of the causer of the damage where the damage is caused as a result of unlawful conviction , unlawful criminal prosecution . ...","On the foregoing grounds ... the court has decided to award [ damages ] against ORG in favour of [ Mr ] GPE ... \u201d","By a final decision of CARDINAL DATE the ORG varied the judgment and awarded the applicant RUR CARDINAL,CARDINAL in damages and ORG for costs .","On DATE the applicant brought proceedings seeking compensation for the fine he had been ordered to pay in the judgment of CARDINAL DATE .","By a final decision of CARDINAL DATE ORG of Kursk granted the claim and ordered ORG to pay the applicant RUR CARDINAL,CARDINAL .","On DATE ORG of Kursk issued a writ of execution for recovery of RUR CARDINAL from ORG , pursuant to the judgment of DATE , which had been varied on appeal on DATE .","On an unspecified date the same court issued a writ of execution for recovery of ORG CARDINAL,CARDINAL from ORG , pursuant to the ruling of DATE .","It appears that the applicant initially sent the writs to ORG for LOC of GPE . In a letter of DATE ORG informed the applicant that a writ of execution had been transferred to ORG for LOC of GPE . It is not clear which of the CARDINAL writs was referred to in the letter . Nevertheless , it appears that both writs either remained in , or were subsequently returned to , ORG .","ORG transferred both writs to ORG on DATE .","On DATE ORG returned the writ for recovery of RUR CARDINAL,CARDINAL to the applicant because it did not meet the statutory requirements . In particular , the date of issue of the writ and the time - limit for its submission for execution had not been indicated . The applicant was also advised that , pursuant to a Government Decree of DATE , writs against the ORG of GPE were to be sent for execution to ORG . It appears that the applicant applied to ORG of Kursk to have the writ amended .","On DATE ORG transferred the writ for recovery of RUR CARDINAL,CARDINAL to ORG of Kursk , apparently because it too failed to meet the statutory requirements .","On an unspecified date ORG returned the writ for recovery of ORG to the applicant and advised him that it should be sent to ORG .","ORG of Kursk sent the writ for recovery of RUR CARDINAL,CARDINAL to the applicant on DATE .","In DATE and DATE the applicant sent both writs to ORG .","According to the Government , on DATE ORG had received the writ of execution for recovery of RUR CARDINAL,CARDINAL . On DATE ORG had returned the writ of execution to the applicant , stating that it did not meet the statutory requirements in that the time - limit for its submission for execution had not been indicated and the operative part of the judgment had been cited incorrectly .","According to the Government , on DATE ORG had received the writ of execution for recovery of RUR CARDINAL . On DATE the writ had been returned to the applicant because it did not meet the statutory requirements . In particular , the time - limit for its submission for execution had not been indicated . Furthermore , the decision of the Kursk Regional Court of DATE had not specified that the amount was to be recovered from the ORG of GPE .","On DATE the applicant applied to ORG of Kursk to have the writ for recovery of RUR CARDINAL amended . On DATE the writ was again received by ORG . NORP According to the Government , the payment pursuant to the writ had been made by ORG on DATE . According to the applicant , the writ had never been executed .","According to the Government , on DATE the writ of execution for recovery of RUR CARDINAL,CARDINAL had again been received by ORG . However , its defects had not been rectified . For these reasons it had again been returned to the applicant .","According to the applicant , neither writ has been executed .","Section CARDINAL of LAW of DATE provides that a bailiff \u2019s order on the institution of enforcement proceedings must fix a time - limit for the defendant \u2019s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time - limit .","Under LAW of the LAW , enforcement proceedings must be completed within DATE of the receipt of the writ of execution by the bailiff .","The Rules on execution by ORG of GPE of judicial acts concerning claims against the ORG of GPE in respect of damage caused by the unlawful acts ( omissions ) of agencies of ORG authority or officials of the agencies of ORG authority , approved by Government Decree No . CARDINAL of DATE , provide that a writ of execution should be sent to ORG together with a copy of the judicial act and the claimant \u2019s bank - account details ( Rule CARDINAL ) . Within DATE from the receipt of the above documents ORG sends them to the debtor ORG agency in order to find out whether the underlying judicial decision is being appealed against . The time - limit for execution of the writ by ORG is DATE ( Rule CARDINAL ) . The writ of execution may be returned without execution in the following situations : if the time - limit for its submission has expired , if the documents submitted do not meet the statutory requirements or some of the documents are missing , or if the execution of the underlying judicial decision has been stayed or discontinued ( Rule CARDINAL ) .","On DATE ORG of GPE in its decision no . ORG CARDINAL held that the Rules adopted by Decree No . CARDINAL concerned the voluntary execution of court decisions against ORG and did not prevent the creditor from seeking enforcement through the court bailiffs .","On DATE ORG of GPE in its decision no . CARDINAL held , inter alia , that LAW , DATE and CARDINAL of the Rules adopted under Decree No . CARDINAL were unconstitutional and were to become invalid from DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-73128","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF CHERNITSYN v. RUSSIA","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant sued his former employer , the public company \u201c ORG \u201d , for unpaid compensation for a work - related injury , caused by a lorry owned by another company , \u201c KTS \u201d .","On DATE ORG found for the applicant and awarded him a lump sum and life - long DATE payments . The lump sum was made up of the principal amount , interest thereon and a penalty for belated payments .","On DATE ORG of GPE set aside the judgment in the part concerning the claim for penalty and remitted that claim for a new examination . It upheld the remainder of the judgment . The claim for penalty was subsequently examined by courts of various levels . As of DATE the claim was pending before ORG .","On DATE the acting President of ORG lodged an application ( \u043f\u0440\u0435\u0434\u0441\u0442\u0430\u0432\u043b\u0435\u043d\u0438\u0435 ) with ORG of GPE to quash the judgment of DATE and all other judgments in the case , because the defendant in the applicant \u2019s action should have been KTS that had owned the lorry rather than ORG that had been the applicant \u2019s employer .","According to the Government , on DATE ORG informed the applicant that the above application would be examined at a hearing on DATE .","On DATE the ORG of ORG of GPE granted the application and quashed the previous judgments , including those of DATE and DATE . It found that those judgments had been unlawful because the lower courts had failed to determine the proper defendant . The applicant \u2019s claims were remitted for a new examination .","In the resumed proceedings , on CARDINAL DATE the ORG established that the applicant had been informed of the possibility to substitute the legal successor of the KTS company as the proper defendant and to join the regional branch of ORG as CARDINAL party , but he had not agreed to the substitution . His claim was therefore dismissed as being directed against an improper defendant .","In his observations on the admissibility and merits of the case of CARDINAL DATE , the applicant made certain abrasive remarks which prompted the respondent \u2019s Government request to declare the application inadmissible as an abuse of the right of petition .","In its admissibility decision of DATE , the ORG rejected the ORG \u2019s request for the reason that they had not identified the allegedly abusive expressions or passages in the applicant \u2019s submissions and as the application had not been knowingly based on untrue facts . The ORG noted , nevertheless , that some of the applicant \u2019s statements had been irrelevant and excessively emotional .","In DATE the applicant and the Government filed their observations on the merits of the application . The Section President set CARDINAL DATE as the time - limit by which the parties could submit written comments in reply to each other \u2019s observations .","In a letter of DATE , the applicant commented on the ORG \u2019s observations in the same abrasive manner .","In their observations on the merits of the case and letters of DATE and DATE , the Government invited the ORG to declare the application inadmissible as an abuse of the right of petition . Drawing a parallel between the conduct of PERSON ( see PERSON GPE , no . CARDINAL , Commission decision of CARDINAL DATE ) and that of the applicant , they claimed that the expressions used by the applicant were even more insulting than those used by PERSON against the representatives of ORG . The Government reproached ORG for not having invited the applicant to withdraw or amend the objectionable statements . They submitted that the applicant \u2019s letter of DATE was a further evidence of his abusive attitude to the proceedings before the ORG .","On DATE the ORG considered the Government \u2019s request to declare the application inadmissible in connection with the applicant \u2019s persistent use of offensive language and invited the applicant to withdraw his inappropriate remarks and to offer a formal apology .","By letter of CARDINAL DATE , the applicant informed the ORG as follows ( translated from NORP ) :","\u201c I formally withdraw my rough remarks about the ORG and about the Government \u2019s representative Mr GPE which were considered offensive . I also offer my sincere apology to the ORG , to the ORG and to PERSON . It was not my intention to offend anyone ... \u201d","In their comments on the applicant \u2019s letter , the ORG asked the applicant to identify the expressions he apologised for ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99992","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":2010,"docname":"CASE OF N. v. SWEDEN","importance":3,"conclusion":"Violation of Art. 3 (in case of expulsion to Afghanistan)","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant and her husband , X , arrived in GPE and on DATE they applied to ORG ( Migrationsverket ) for asylum and residence permits . The applicant was interviewed on DATE and DATE . She had no identity papers and could not prove her identity . She stated that she was born and grew up in GPE , where her parents , CARDINAL of her CARDINAL brothers , an aunt and an uncle resided . Her other brother had left GPE a long time ago . She also had an uncle in GPE . The applicant had attended school for DATE in GPE and had studied at the university .","The applicant and her spouse also submitted that they had been persecuted since DATE because ORG had been a politically active member of ORG , leading to his arrest on QUANTITY occasions . Following his second release they had moved to GPE , but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him . The applicant submitted that she also had shown her political stance by acting as a teacher for women , which was not accepted by parts of the leading elite in GPE . Therefore , they had fled the country . When they had left their home , they had stayed with her uncle in GPE and the latter had helped them finance their journey to GPE by paying a smuggler MONEY . Lastly , X invoked his poor mental health , stating that he was suffering from anxiety , sleeplessness and aggressive behaviour .","On DATE ORG rejected the couple 's application . It first noted that the security situation in GPE varied between different parts of the country but that it was better in GPE than in other parts of the country . ORG then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within ORG . Hence , it questioned the claim that his life would be endangered because of his membership of that party . ORG therefore found that neither X nor the applicant had shown that they had been persecuted in GPE or that they would risk persecution upon return . Thus , even having regard to X 's poor mental health , the ORG found that there were no grounds on which to grant them leave to remain in GPE .","The applicant and her husband appealed against the decision to the then ORG , which subsequently transmitted the case to ORG ( Migrationsdomstolen ) . The applicant maintained her claims and added that the threats against her and X stemmed from PERSON 's previous political activities and from her activities in educating women and that the authorities had not been able to protect them , not even in GPE . The applicant further submitted that she had separated from X in DATE , lived alone and intended to obtain a divorce although X opposed it . Due to this , she had been criticised by some of X 's friends , been called a \u201c bad woman \u201d and some other NORP had spread untrue rumours about her . By separating from X , she had broken with NORP traditions which meant that she risked serious persecution if forced to return to her home country . In this respect , she pointed out that she would not be able to obtain a divorce in GPE and that by trying to obtain a divorce in GPE she had dishonoured both her own and PERSON 's family . Consequently , her own family had disowned her and she would risk reprisals from QUANTITY 's family . It would also be impossible for her to find work and , since she and X had no children , she would be a social outcast . She further mentioned that the punishment for adultery in GPE was stoning . Lastly , she stated that she suffered from psychological problems and was in need of treatment in GPE .","ORG contested the appeal and submitted , inter alia , that X had stated that his father had held a higher position than him in the party but that he had not been threatened . It further claimed that , having regard to X 's poor mental health , it should be possible for the applicant to obtain a divorce . Moreover , it appeared that X would agree to a divorce . Lastly , it did not question that the applicant 's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her .","On DATE , after holding an oral hearing , ORG rejected the appeal . It first considered that it had not been shown that X , on account of his previous political activities , would be of interest to any resistance groups in GPE . It then observed that quite some time had passed since the applicant had taught women in her home country . Moreover , the court noted that the previous ORG ban on education for women had been replaced by affirmative action for women and that the constitution stated that the ORG should actively support women 's education . Therefore , the court found that the applicant had not demonstrated that she had a well - founded fear of persecution because of her previous work as a women 's teacher . As concerned the applicant 's personal life , the court observed that she had not formally divorced PERSON although they had separated . In its view , nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with NORP traditions . It further noted that the applicant had stated that she had not had an extramarital affair , for which reason there was no risk that she would be convicted of adultery and sentenced to death . In this respect , the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the NORP authorities . Turning to her claim that she would lack a social network in GPE , the court found that the applicant had not demonstrated that her family in GPE had rejected her and , hence , she had a social network there . It further took into account that she was well - educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment . Therefore , and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain , the appeal was rejected .","NORP The minority of the court wanted to grant the applicant leave to remain in GPE on the ground that , since she did not have any children and had separated from her husband , she had shown that she would risk degrading treatment upon return to her home country .","The applicant appealed against the judgment to ORG ( Migrations\u00f6verdomstolen ) which , on DATE , refused leave to appeal . This decision was final and the applicant 's deportation order thus became enforceable .","On DATE invoking new circumstances , the applicant lodged an application for a residence permit under LAW , LAW , of LAW , which was refused by ORG .","On DATE the applicant lodged a new application for a residence permit under LAW , LAW , of LAW , which was refused by ORG .","In DATE the applicant petitioned ORG ( tingsr\u00e4tten ) of GPE for a divorce from X. The latter informed ORG on DATE that he opposed a divorce . The applicant submitted that she had separated from her husband in DATE and only seen him once since then . Moreover , she intended to invoke the divorce as CARDINAL of the grounds to stop her deportation .","In a decision of DATE , the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in GPE .","In the meantime , on DATE , the applicant requested ORG to re - evaluate her case and stop her deportation . As grounds for her request , she claimed that the situation in GPE had worsened considerably since ORG previous decision . She further alleged that she now had a well - founded fear of persecution upon return to GPE since she had started a relationship with a NORP man . Thus , she had committed adultery and risked the death penalty in GPE . She had not been in touch with her family since DATE .","She also submitted a letter from ORG for ORG , dated DATE , which stated , inter alia , the following :","\u201c ORG 's views on the protection needs of NORP female asylum - seekers are fully set forth in the ORG 's ORG needs of NORP Asylumseekers . ... In the context of GPE , ORG would like to draw to your attention to the fact that an assessment of a refugee claim of an NORP female asylum - seeker , should take into account the specifically vulnerable situation in which NORP women are found , including pressure from within families , communities , and by the public to conform [ to ] behaviour in accordance with particular codes of behaviour . In this regard , a separation and\/or divorce effected in the country of asylum , may indicate adoption of a Westernised way of life and be perceived as , or actually transgressing , prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and\/or political opinion under the scope of LAW ) of the CARDINAL Refugee Convention . ... ORG notes that NORP female asylum - seekers ' reliance for relative social , cultural and economic freedom is exclusively dependent on the existence of male protection ( husband , father , brother or extended family member ) and that lack of such networks may seriously undermine a returnee 's personal physical , economic and emotional security . \u201d","On DATE ORG refused to reconsider the applicant 's case as she had failed to invoke any new circumstances of importance . It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts . ORG also found that there were no impediments to the enforcement of the deportation order .","The applicant appealed against the decision to ORG , maintaining the grounds invoked before ORG and insisting that these were new circumstances of importance . On DATE the court rejected the appeal , upholding the ORG 's decision and reasoning in full .","On DATE ORG refused leave to Appeal and , on DATE , the case was transferred to ORG to enforce the deportation order .","Finally , on DATE the applicant lodged a third application for a residence permit under LAW , LAW , of LAW , which was refused by ORG .","On DATE the applicant lodged the case with the ORG and on CARDINAL DATE the President of the ORG decided to apply Rule CARDINAL of ORG , indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice","In her observations of CARDINAL DATE the applicant submitted that already before leaving GPE , she had told her mother about her problems with her husband . In DATE the applicant had called home and told her mother that she and her husband had separated . The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband . She had then talked to her father who became furious and shouted that she brought dishonour to the family . The conversation had ended because the applicant ran out of money on her telephone card . The father had called her back the following day to try to persuade her to change her mind and talked about honour , shame and her disgracing the family . In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her . She was no longer his daughter . After the conversation , the applicant had called her uncles in GPE and GPE to have their support but they had both repeated the words of her father . That had been the last conversation between the applicant and her relatives .","With the applicant 's observations of CARDINAL DATE she also enclosed a letter of DATE \u201c to whom it may concern \u201d by a named NORP man who confirmed having a relationship with the applicant . He stated , inter alia , that they had met for the first time in DATE , that their relationship had started in DATE and that they had been living together in his apartment since DATE .","NORP In reply the Government observed on DATE that the facts now presented by the applicant in her observations were never submitted to the NORP authorities in spite of the fact that these could be considered relevant to her claim for asylum . Notably , regarding the claim that the applicant and the said NORP man have been living together since DATE , the ORG noted that the applicant has still not changed her registered mail address in PERSON although her new residence is apparently far away .","The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utl\u00e4nningslagen , DATE hereafter referred to as \u201c the DATE LAW ) which replaced , on DATE , the old LAW ( Utl\u00e4nningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .","Chapter DATE , LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term \u201c refugee \u201d refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By \u201c an alien otherwise in need of protection \u201d is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .","As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .","Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .","Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .","In so far as relevant , ORG of NORP Asylum - Seekers of DATE , which replaced the previous Guidelines from DATE , set out the following :","In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country , ORG considers that a significant number of NORP asylum seekers are in need of international protection . Applications by NORP asylum - seekers should be determined on an individual basis , according to fair and efficient refugee status determination procedures , including the right of appeal . Favourable consideration should be given to the specific groups identified in these LAW , including , but not limited to ( i ) persons perceived as contravening LAW law and members of minority religious groups ; ( ii ) ethnic minority groups ; ( iii ) persons associated with or perceived as supporting the Government , including civil society members ; ( iv ) actual or perceived supporters of armed anti - Government groups ; ( v ) journalists ; ( vi ) persons associated with ORG of GPE or other left - aligned political parties ; ( vii ) women ; ( viii ) children ; and ( ix ) persons at risk of becoming victims of blood feuds .","ORG further considers that an internal flight or relocation alternative ( ORG ) is not available within certain parts of GPE due to a number of factors . If , however , the availability of an ORG must be assessed as a requirement in a national eligibility procedure , it should be examined carefully and on a case - by - case basis , in light of the requisite relevance and reasonableness analyses , taking into account the individual circumstance of the case , and bearing in mind the cautions in these Guidelines . Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat , such area can only be a reasonable alternative in cases where the claimant has strong family , social or tribal links in the area of displacement , permitting relocation without undue economic and social hardship . ...","( g ) Women","Women are at particular risk of ill - treatment if perceived as not conforming to the gender roles ascribed to them by society , tradition and even the legal system . Ill - treatment occurs in a variety of forms and may be inflicted by several actors , including family members . Such treatment includes domestic violence , excessive custodial sentences and degrading and inhuman treatment . While there is a limited number of women holding public office , women 's rights continue to be curtailed , restricted and systematically violated . In DATE , for instance , a NORP Personal Status Law was passed by ORG and signed by President PERSON . The law requires , inter alia , women to comply with their husbands ' sexual requests , and to obtain permission to leave the home , except in emergencies . The code has yet to be implemented and is currently under review as a result of international pressure .","Cases of physical violence perpetrated against women and girls in GPE have increased by PERCENT in DATE . Existing figures indicate that currently PERCENT of NORP women are affected by domestic violence . Human rights organizations report an overall increase of cases of self - immolation and other forms of suicide . The phenomenon of female self - immolation is commonly linked to the pervasive societal discrimination against women . Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment , as well as judicial capacity for forensics analysis . The social stigma attached to the reporting of gender - based violence in GPE often prevents victims from seeking physical or psychological treatment .","NORP women , who have adopted a less culturally conservative lifestyle , such as those returning from exile in GPE or LOC , continue to be perceived as transgressing entrenched social and religious norms and may , as a result , be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families , communities or tribes . Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community , but also sexual orientation , the pursuit of a professional career , and mere disagreements as to the way family life is conducted .","Unaccompanied women or women lacking a male \u201c tutor \u201d ( mahram ) continued to face limitations on conducting a normal social life . They include divorced women , unmarried women who are not virgins , and women whose engagements to be married have been broken . Unless they marry , which is very difficult given the social stigma associated with these women , social rejection and discrimination continue to be the norm . Many NORP women are prevented from leaving the family compound without a burqa and a male companion , who has to be a husband or a close relative . Women without male support and protection generally lack the means of survival , given the social restrictions on women living alone , including the limitations on their freedom of movement . This is reflected in the absence of solutions available to the few women able to access domestic violence shelters . Unable to live independently , they face years of quasi - detention , prompting many to return to abusive family situations . The results of such \u201c reconciliation \u201d are generally not monitored and abuse or honour crimes committed upon return are often done with impunity .","Forced and child marriages continue to be widely practiced in GPE , and can occur in a variety of forms . Statistics show that PERCENT of girls in GPE are married before they reach DATE . Most marriages continued to be arranged by families . However , more coerced forms include ' sale ' marriage , that is , girls sold for a fixed quantity of goods , cash or simply to settle a family debt ; bad dadan , a tribal form of dispute - settling in which the offending family offers one girl for marriage into the wronged family , for instance to settle a blood debt ; and badal , when CARDINAL families exchange their daughters in an attempt to minimize marriage costs .","Furthermore , women 's rights activists face threats and intimidation , particularly if outspoken about women 's rights , the role of ORG or the behaviour of commanders . In areas under the control of armed anti - Government groups , there are growing indications that women face systematic societal discrimination . For example , a significant number of female medical graduates is systematically refusing to work in rural areas , due to the fear of being targeted by insurgents . These developments affect women 's access to health in a disproportionate way .","Access to education for girls is also severely curtailed . According to ORG and aid agencies CARDINAL school - age children ( CARDINAL of them girls ) have been deprived of education as a consequence of conservative customs , poverty , lack of education facilities and a culture of gender discrimination .","The deterioration of the security situation has also had a detrimental effect on education . Armed anti - Government groups have continued their systematic attacks on schools , teachers , pupils ( particularly schoolgirls ) and parents . According to ORG ( PERSON ) , CARDINAL primary , secondary and high schools closed due to such attacks . PERCENT of schools are closed in the CARDINAL southern provinces of GPE , GPE , GPE and GPE , with GPE having CARDINAL schools , primarily for boys , functioning , compared to CARDINAL schools open in DATE . Consequently , CARDINAL students have been deprived of an education in CARDINAL provinces , according to ORG officials . Girls ' schools are increasingly a target of attacks . PERCENT of security incidents at schools across the country were specifically directed against girls ' schools despite the fact that they represent PERCENT of the total number of primary , secondary and high schools in the country . Furthermore , female teachers are specifically targeted and higher bounties are offered for killing them . In DATE , in a widely reported attack in GPE , CARDINAL students and CARDINAL teachers , all female , were sprayed with acid and suffered severe injuries .","Given the pervasive societal discrimination and the widespread sexual and gender based violence , NORP women and girls , particularly those living in areas affected by the armed conflict or under the de facto control of armed anti - Government groups , may be at risk of persecution depending on their individual profile and circumstances . Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence , harassment or discrimination in GPE . As such , women with particular profiles , including , but not limited to victims of domestic violence or other serious forms of violence , unaccompanied women or single heads of household , women with visible social or professional roles , such as journalists , human rights activists and community workers , may be at risk of persecution on the ground of membership of a particular social group . Where non - conformity with traditional roles is perceived as opposing traditional power structures , the risk of persecution may be linked to the ground of religion and\/or political opinion . Furthermore , measures which restrict one 's ability to earn a living so that survival is threatened , or severe limitations to accessing education or health services , may also amount to persecution .","The US State Department Human Rights Report on GPE for DATE , published on DATE stated , inter alia :","Women","The law criminalizes rape , which is punishable by death , but under Shari'a , which the country 's laws draw from and can not conflict , the criminalization did not extend to spousal rape . Under Shari'a , a rape case requires a woman to produce multiple witnesses to the incident , while the man need simply claim it was consensual sex , often leading to an adultery conviction of the victim . Adultery is defined in LAW and designated a crime ; premarital sex is not designated a crime , but local officials often considered it a \" moral \" offense . While the ORG reported CARDINAL cases of rape during DATE ; however , the actual number of cases generally was believed to be much higher . Of the reported cases , CARDINAL were charges of rape against females and CARDINAL were of rape against males . The ORG reported CARDINAL arrests in connection with rape cases . Statistics on convictions were unavailable . Rapes were difficult to document due to social stigma . Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned . According to NGOs jail authorities frequently raped women imprisoned TIME in jail .","The NORP penal code criminalizes assault , and courts entered judgments against domestic abusers under this provision . According to NGO reports , CARDINAL of women continued to suffer abuse at the hands of their husbands , fathers , brothers , armed individuals , parallel legal systems , and institutions of state such as the police and justice system . Many elements of society tolerated and practiced violence against women . A GPE women 's shelter reported receiving CARDINAL new cases of domestic violence victims DATE from ORG referrals . According to the shelter 's report the weak economy and poor security contributed to the incidence of domestic violence . Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks , rape , or killings , or suicides of women . If cases came to court , the accused were often exonerated or punished lightly . The director of a women 's shelter in GPE noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice . Domestic violence usually consisted of beating women and children and , less often , burning women . During DATE , the GPE initiated additional efforts to collect statistics on violence against women .","There were CARDINAL women 's shelters across the country . The CARDINAL shelters in GPE were home to CARDINAL women and girls . ORG ( ORG ) and other agencies referred women to the centers , which were designed to give protection , accommodation , food , training , and healthcare to women escaping violence in the home or seeking legal support due to family feuds . According to the LOC , CARDINAL women and girls were referred to the ORG 's legal department DATE ; however , space at the specialized shelters was limited . Women in need of shelter who could not find a place in the GPE shelters often ended up in prison .","The concept of women 's shelters was not widely accepted in society , as many persons treated them with distrust and did not understand their utility . The director of CARDINAL shelter stated she always referred to the location as a mediation centre , as \" shelter \" was considered a negative word . Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations . This significantly hindered their work , as reporting domestic violence was not socially accepted . ORG reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations . A NORP - based NGO , however , reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence . During DATE , a local NGO conducted CARDINAL domestic violence trainings for CARDINAL ORG officers in GPE , including those working in ORG . ORG are staffed primarily by female police officers and address violence and crimes against women , children , and families . They offer mediation and resources to prevent future instances of domestic violence .","Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law . ORG was more acute in rural areas and small villages . Women in urban areas continued to make strides toward greater access to public life , education , health care , and employment ; however , the denial of educational opportunities during the continuing insurgency , as well as limited employment possibilities and the threat of violence , continued to impede the ability of many women to improve their situation .","Societal discrimination against women persisted , including domestic abuse , rape , forced marriages , exchange of girls to settle disputes , kidnappings , and honour killings . In some rural areas , particularly in the south , women were forbidden to leave the home except in the company of a male relative ...","According to a report released during DATE by PERSON , PERCENT of women complained they were victims of violence , CARDINAL of it sexual . According to the report , PERCENT of marriages were forced and , despite laws banning the practice , PERCENT of brides were under the legal marriage age of DATE . The report stated many of these girls were offered as restitution for a crime or as debt settlement .","Local officials occasionally imprisoned women at the request of family members for opposing the family 's choice of a marriage partner or being charged with adultery or bigamy . Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried . Local officials imprisoned women in place of a family member who had committed a crime but could not be located . Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage . Several girls between the ages of DATE and CARDINAL remained detained in PERSON prison having been captured after fleeing abusive forced marriages .","The PERSON documented a total of CARDINAL honour killings throughout DATE ; however , the unreported number was believed to be much higher . In DATE , according to a local NGO , an DATE woman in GPE was killed by her brother because she had run away from a forced marriage . Reportedly , after the woman ran away to a GPE women 's shelter the Governor of GPE intervened in the case , sheltered her , and forced the woman 's mother to return her to GPE , resulting in her death .","Women occasionally resorted to self - immolation when they felt there was no escape from their situations . During DATE the GPE documented CARDINAL cases of self - immolation , in contrast to CARDINAL cases in DATE . Other organizations reported an overall increase during DATE . According to the GPE , almost all the women had doused themselves with gasoline and set themselves alight . In GPE , during DATE , the GPE city hospital alone recorded CARDINAL cases of self - immolation , of whom CARDINAL died . There have also been reports of relatives setting women on fire to create the appearance of self - immolation ...","There is no law specifically prohibiting sexual harassment .","Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system . Local family and property law were not explicitly discriminatory toward women , but in parts of the country where courts were not functional or knowledge of the law was minimal , elders relied on Shari'a and tribal custom , which generally were discriminatory toward women . Most women reported limited access to justice in tribal shuras , where all presiding elders were men ; women in some villages were not allowed any access for dispute resolution . Women 's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ...","ORG on GPE of DATE , states in paragraphs PERSON about divorce :","NORP Sharia and LAW of the country have provided suitable rights for women and men , but practically and in some rules and practices of equality between men and women these rights are not ensured . Current legislation leaves women largely unprotected . A man can divorce his wife without due process . In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices . A woman can remarry DATE after divorce period ( PERSON ) . However , if challenged , she will have to provide witnesses to prove her divorce in court . The woman can initiate the divorce process if she has enough reasons to do so ; accepted reasons among others include : her husband must be sick and it endangers her ; her husband must fail to provide for the family ; her husband must be absent for DATE in the house or be sentenced for imprisonment of DATE or more . In this case , the court will assign her mahr \u2013 divorce maintenance \u2013 and custody of girls until they reach their ninth birthday and boys until their seventh birthday . \u201d ( ORG report , DATE ) .","The Womankind report of DATE noted \u201c NORP civil law contains numerous provisions that protect women 's human rights in the family , such as their right to divorce if they are being maltreated . While seldom enforced , existing law provides a basis from which to advocate for enforcement and education about women 's human rights . \u201d Further , \u201c Women 's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws ... \u201d ( ORG , DATE ) ORG 's DATE paper concurred \u201c Women remain deprived of basic civil rights , including in cases of divorce , custody and with regard to inheritance rights . \u201d","Womankind also recorded that \u201c Stigma and shame surround divorced women ... rendering them unmarriageable and subsequently , financially destitute . Polygamy is CARDINAL of the few options available to divorced women , who have low social status but require a husband for financial dependence . \u201d Also , \u201c Women 's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages . \u201d","An ORG article dated DATE reported that \u201c In GPE sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and\/or a lengthy prison sentence , depending on their marital status and other circumstances ... Every year CARDINAL of female sex workers are sent to prison for allegedly having ' unlawful sexual relationships ' , according to women 's rights activists ... \u201d However , high food prices , drought , unemployment and lack of socio - economic opportunities are pushing some women and young girls in northern GPE into commercial sex work , women 's rights activists and several affected women told ORG ...","ORG , in its report \u201c We Have the Promises of the World \u201d of DATE , on women 's rights in GPE , details emblematic cases of ongoing rights violations in CARDINAL areas : attacks on women in public life ; violence against women ; child and forced marriage ; access to justice ; and girls ' access to secondary education . The summary set out , inter alia :","DATE after DATE of the ORG , and the establishment of the PERSON government , NORP women continue to be among the worst off in the world . Their situation is dismal in every area , including in health , education , employment , freedom from violence , equality before the law , and political participation ... The diminishing status of women 's rights in GPE came back into focus in DATE when ORG law , which was riddled with ORG style misogyny , was passed by parliament and signed by President PERSON . The law regulates the personal affairs of NORP , including divorce , inheritance , and minimum age of marriage , but , as detailed below , severely restricts women 's basic freedoms . ... the final outcome fell far short of expectations , apparently because President PERSON was intent on maintaining the electoral support of NORP fundamentalists . DATE before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon NORP women , including the requirement that wives seek their husbands ' permission before leaving home except for unspecified \u201c reasonable legal reasons . \u201d The law also gives child custody rights to fathers and grandfathers , not mothers or grandmothers , and allows a husband to cease maintenance to his wife if she does not meet her marital duties , including sexual duties . The furor over the NORP law highlighted the fragility of the gains made by NORP women , human rights activists , and reform - minded politicians . The dominant political factions of GPE remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the ORG , such as freedom of movement , freedom to work , and the right to education . Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over DATE , as the government has come to increasingly rely on conservative factions to maintain political control .","Violence against Women : Violence against women in GPE is endemic . A nationwide survey of CARDINAL women , published in DATE , found that PERCENT had experienced CARDINAL form of physical , sexual , or psychological violence or forced marriage in their lifetimes . The forms of violence include rape , physical violence , forced marriage , and \u201c honour killings . \u201d Too often the attitudes of those in government and the police reflect the misogynous views , rooted in cultural traditions - but increasingly rejected by younger generations of NORP \u2013 that underlie some of the violence against women . As Dr. PERSON , ORG Commissioner of ORG ( GPE ) , told us , \u201c Police and judges see violence against women as legitimate , so they do not prosecute cases . \u201d In the vast majority of cases women will not seek help because of their fears of police abuse or corruption , or their fears of retaliation by perpetrators of violence . Low social status and social stigmas deter women from going against their families to pursue justice , particularly in cases of domestic abuse . For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian , let alone women who seek protection from public authorities . In DATE study by ORG ( ORG ) , PERCENT thought that a woman disabled by violence should seek police help . For those who do seek help , many encounter lack of concern , if not outright hostility or abuse . Rape is not a crime in LAW . Under the code , rapists can only be charged with \u201c forced \u201d zina , or adultery , which sometimes results in women also being prosecuted for zina . In a major achievement for civil society groups and women 's rights activists , the president issued LAW law , which makes rape a crime . At the time of writing the law is being considered by parliament ...","Access to ORG : An underlying problem is women 's access to justice . Police training involves little or no training in gender based violence or women 's rights , particularly as training has been increasingly focused on counter - insurgency and security skills rather than crime prevention , crime solving and community policing . Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a \u201c bad woman . \u201d Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law , which places great emphasis on notions of female \u201c honour \u201d and chastity . The majority of women in jail are charged with extramarital sex ( zina ) or with \u201c running away\u201d- something that is not a crime in NORP law or LAW but often reflects a conservative cultural view that sees women as property of fathers or husbands . CARDINAL widely welcomed policy response to this was the creation of female - staffed \u201c Family Response Units \u201d ( FRUs ) in police stations . But , as detailed in this report , there are serious problems with the implementation of FRUs , including insufficient numbers of women police officers and inadequate training , mentoring , and facilities ..."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81917","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2007,"docname":"CASE OF HIRSCHHORN v. ROMANIA","importance":2,"conclusion":"Violation of Art. 6-1 (access to court - independent and impartial tribunal);Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial reparation in the absence of restitution) - financial award;Pecuniary damage (loss of profits resulting from failure to comply with a final judgment) - claim dismissed;Pecuniary damage - financial award (reimbursement of taxes and duties paid) - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;David Th\u00f3r Bj\u00f6rgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Lucius Caflisch","text":["The applicant was born in DATE in GPE and lives in FAC ( GPE ) .","In DATE , under Decree no . CARDINAL\/CARDINAL on nationalisation , the ORG took possession of a building located at CARDINAL FAC in GPE which belonged to the applicant 's parents , NORP citizens and members of the NORP faith .","On DATE the applicant lodged an action to recover possession of the property with ORG . The action was directed against GPE local council , ORG ( Departamentul de administrare a fondului locativ ) and the ORG company ORG , which managed such properties . He alleged that , under Decree no . CARDINAL\/CARDINAL , property belonging to certain social categories had been exempt from nationalisation and that his parents had belonged to CARDINAL such category .","In a judgment of DATE the court allowed the action on the ground that the ORG had taken possession of the property without any valid title . It ordered the defendants to restore the building and the adjoining land to the applicant .","Following an appeal by the GPE mayor 's office acting on behalf of the local council , ORG upheld the decision of the first - instance court in a judgment of DATE .","NORP The mayor 's office lodged a further appeal with ORG , which in a final judgment of DATE declared the appeal inadmissible for failure to give reasons .","In a decision of DATE the mayor of GPE ordered the return of the building to the applicant .","On DATE the applicant , accompanied by a bailiff , went to the building with a view to taking possession and found that it was occupied by ORG under a lease concluded with the ORG company Locato , which managed the buildings placed at the disposal of diplomatic missions in GPE .","On DATE the applicant brought an action against PERSON and ORG seeking the setting - aside of the lease and an order requiring ORG to vacate the building .","In a judgment of CARDINAL DATE ORG dismissed the action . It observed that in DATE , by a government decision , ownership of the building had been transferred from the GPE mayor 's office to the company managing the buildings used by diplomatic missions in GPE . That company had been letting the building to GPE since DATE . The latest lease , which had been concluded on DATE and set the rent at MONEY ( ORG ) DATE , was due to expire on DATE . Taking the view that PERSON had proper authority to manage the building , the court held that the disputed lease was valid .","In a judgment of CARDINAL DATE ORG , on an appeal by PERSON , set aside the impugned decision and allowed the applicant 's action . ORG observed that in its final judgment of DATE ORG had held that the ORG had appropriated the building without any valid title . Taking the view that the ORG could not dispose of a property which did not belong to it , the court set aside the lease and ordered the eviction of the tenant organisation . PERSON appealed on points of law .","On DATE the bailiff was authorised by ORG to evict the tenant organisation under the decision of DATE . On DATE he directed PERSON to comply with the decision .","In a letter of DATE Locato informed the bailiff that the building was the property of the ORG and that the tenant organisation had diplomatic immunity . That being so , it considered that enforcing the eviction order would be inappropriate and liable to damage GPE 's image internationally .","On DATE and DATE the bailiff went to the building but was refused entry by a representative of ORG on the ground that ORG was a GPE governmental organisation which had diplomatic immunity and could not therefore be evicted .","On DATE the bailiff wrote to the President of ORG informing him of the difficulties encountered in enforcing the judgment of DATE and the decision of the mayor of GPE , as PERSON and ORG were invoking diplomatic immunity . The letter included the following passage :","\u201c Given the applicability of certain international law conventions in situations such as this , we would be grateful if you could consider the possibility DATE and inform us accordingly \u2013 of taking specific enforcement measures , in view of the fact that the writ of execution is supposed to take effect and that the appeal by PERSON against ORG judgment of DATE is pending before your court and has been set down for hearing on DATE . \u201d","On DATE the President of ORG replied to the bailiff 's letter and informed him that his concerns had been looked into by an inspecting judge , whose report he forwarded to the bailiff . The report indicated that under LAW of DATE the property of diplomatic missions was inviolable . As the immunity from jurisdiction extended to enforcement procedures , the inspecting judge concluded that the applicant could not regain possession of his building , and asked the bailiff to advise him to apply for compensation corresponding to the value of the building on the ground that it was not possible to have the judgment of DATE enforced .","Meanwhile , on DATE , the applicant , who lives in GPE , sent a fax to the registry of ORG stating that he was dispensing with the services of his lawyer and requesting an adjournment of the hearing scheduled for DATE so that he could instruct a replacement .","At the hearing of CARDINAL DATE ORG refused the request for an adjournment , taking the view that the applicant had had sufficient time to appoint a new lawyer . However , it adjourned delivery of the judgment , first until DATE and then until DATE , in order to allow the applicant to submit conclusions in writing .","In a final judgment of CARDINAL DATE ORG of ORG , sitting as a bench of CARDINAL judges , allowed PERSON 's appeal on points of law and dismissed the applicant 's action . It confirmed the validity of the lease , finding that it had been entered into in good faith since , although the company had not in fact been the owner of the building in question at the time of signature of the lease , it had appeared to be .","On DATE the GPE ORG rejected a complaint by the applicant against the bailiff alleging that the latter had failed to take action to enforce the judgment of DATE . The court observed that the bailiff had gone to the building but had been informed that ORG enjoyed immunity from jurisdiction . Accordingly , the court held that the bailiff could not be said to have failed to enforce the judgment in question .","On DATE , on the basis of Law no . CARDINAL\/CARDINAL on the rules governing immovable property wrongfully nationalised by the ORG DATE and DATE ( \u201c Law no . CARDINAL \u201d ) , the applicant requested that PERSON return the property to him . His request was rejected by a decision of DATE .","The applicant appealed against that decision to ORG and requested that PERSON be evicted from the building . He argued that the building belonged to him by virtue of the judgment of DATE .","In a judgment of CARDINAL DATE ORG allowed the claim for restitution of the building but rejected the eviction request on the ground that FAC was not a party to the proceedings . PERSON appealed on points of law .","By a governmental decision ( no . CARDINAL ) of CARDINAL DATE , PERSON became ORG ( Regia autonoma PERSON patrimoniului protocolului PERSON \u2013 \u201c the NORP \u201d ) . The applicant 's property continued to appear in the lists attached to that decision as ORG property managed by the ORG .","By judgment of DATE ORG allowed the appeal and dismissed the applicant 's claim on the ground that Mr PERSON had not adduced evidence either that title to the building had passed to him as his parents ' heir or that he had failed to be compensated contrary to the agreement concluded in DATE between GPE and GPE concerning property formerly owned by NORP citizens and nationalised by ORG .","An appeal on points of law by the applicant is currently pending before ORG and ORG .","In an action to recover possession lodged with ORG on DATE , the applicant requested that the ORG return the building , that the lease concluded with ORG be set aside and the latter evicted , and that the rent received by the ORG under the lease be paid to him .","By judgment of CARDINAL DATE ORG declared the action inadmissible on the ground that the applicant could not lodge an ordinary action to recover possession while the action based on LAW no . MONEY was still pending .","The applicant appealed to ORG , which upheld the judgment on DATE . The applicant then lodged an appeal on points of law with ORG and ORG . The latter , in a judgment of DATE , allowed the appeal and remitted the case to ORG . The proceedings are still pending .","The ORG was reorganised by Government Decision no . CARDINAL of DATE . The applicant 's building is still on the list of ORG - owned properties managed by the ORG .","Although the lease concluded with ORG expired on DATE , that organisation continues to occupy the building . The Government have not provided any details as to the legal basis for the occupancy .","The documents supplied by the applicant show that he has paid all the taxes and duties due on the building . However , in DATE and DATE the ORG also paid taxes and duties into the local budget in respect of the building .","Under ORG ( Law no . CARDINAL\/CARDINAL ) in force at the material time , the president of the court of appeal performed mainly administrative , organisational and supervisory duties . The relevant provisions of the LAW read as follows :","\u201c The president [ of the court of appeal ] and , where appropriate , the presidents of the divisions [ of that court ] shall decide on the composition of the benches ... \u201d","\u201c Where the president , the vice - president or the division president is a member of the bench , he or she shall preside . In all other cases the president or division president shall appoint the presiding judge of the bench . \u201d","\u201c The Minister of ORG shall be responsible for the proper organisation and operation of the justice system as a public service . The inspecting judges of the courts of appeal shall keep the Minister of Justice informed of the functioning of the courts and of any irregularities liable to compromise the standard of judicial activity and the application of the laws and regulations coming within the jurisdiction of the courts of appeal .","The presidents and vice - presidents of the courts shall monitor the organisation and quality of the service and compliance with the laws and regulations ... The presidents of the courts of appeal may exercise this prerogative through the intermediary of the inspecting judges of the court of appeal .","In no circumstances may the monitoring activities entail interference in the conduct of proceedings in progress or call into question a decision already given ... \u201d","\u201c Promotion for judges shall be on the basis of merit , as attested by the appraisals carried out by their superiors . Appraisals shall be conducted DATE and shall reflect the performance of the persons concerned , their conduct in the workplace and in society , their professional qualities and their career prospects . \u201d","\u201c Judges shall be prohibited from providing advice , orally or in writing , concerning ongoing cases , even if the case in question is being heard by a court other than the one in which they sit . They may not express opinions in public concerning ongoing cases . \u201d","\u201c Judges ' disciplinary liability shall be incurred in the event of irregularities in the performance of their duties or conduct liable to damage the interests of the service or the reputation of the justice system . \u201d","\u201c Disciplinary proceedings ... shall be initiated by the Minister of Justice ... \u201d","\u201c In order to initiate disciplinary proceedings ... , a preliminary investigation ordered by the Minister of ORG shall be compulsory .","The investigation shall be carried out either by judges of at least the same ranking as the judge under investigation , by general inspectors or by other ORG officials assimilated to judges . \u201d","\u201c On receiving the findings of the investigation , the Minister may refer the matter to ORG .","The ORG shall give a decision accompanied by a statement of reasons ... \u201d","The position of inspecting judge at the court of appeal was abolished by PERSON no . CARDINAL of DATE . However , the possibility for the president or vice - presidents of the court of appeal to appoint judges to carry out inspections was maintained . Nevertheless , these inspections must respect judges ' independence and comply with final court decisions .","Article CARDINAL of Law no . CARDINAL\/CARDINAL was repealed by ORG no . CARDINAL ) , which stipulates that judges ' performance shall be assessed DATE by a committee under the authority of ORG .","The method for designating the judges to sit on the benches of the courts of appeal was amended by ORG ( Law no . CARDINAL\/CARDINAL ) , which states that the composition of the benches shall be decided by a panel within each court of appeal , made up of the president and CARDINAL members elected by the general assembly of judges .","Under PERSON no . GPE on ORG , disciplinary proceedings are a matter exclusively for a disciplinary committee within ORG , to which any interested party may apply .","The relevant international provisions are as follows :","\u201c For the purpose of the present Convention , the following expressions shall have the meanings hereunder assigned to them :","...","( i ) The ' premises of the mission ' are the buildings or parts of buildings and the land ancillary thereto , irrespective of ownership , used for the purposes of the mission including the residence of the head of the mission . \u201d","\u201c CARDINAL.The functions of a diplomatic mission consist , inter alia , in :","( a ) Representing the sending ORG in the receiving ORG ;","( b ) Protecting in the receiving ORG the interests of the sending ORG and of its nationals , within the limits permitted by international law ;","( c ) Negotiating with the Government of the receiving ORG ;","( d ) Ascertaining by all lawful means conditions and developments in the receiving ORG , and reporting thereon to the Government of the sending ORG ;","( e ) Promoting friendly relations between the sending ORG and the receiving ORG , and developing their economic , cultural and scientific relations .","... \u201d","\u201c CARDINAL . The LOC of the mission shall be inviolable . The agents of the receiving ORG may not enter them , except with the consent of the head of the mission .","The receiving ORG is under a special duty to take all appropriate steps to protect the LOC of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity .","The LOC of the mission , their furnishings and other property thereon and the means of transport of the mission shall be immune from search , requisition , attachment or execution . \u201d","\u201c A ORG can not claim immunity from the jurisdiction of a court of ORG if the proceedings relate to :","a. its rights or interests in , or its use or possession of , immovable property ; or","b. its obligations arising out of its rights or interests in , or use or possession of , immovable property and the property is situated in the territory of the State of the forum . \u201d","\u201c No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another ORG except where and to the extent that the ORG has expressly consented thereto in writing in any particular case . \u201d","The relevant provisions of this Convention read as follows :","\u201c CARDINAL . For the purposes of the present Convention :","...","( b ) \u201c State \u201d means :","( i ) the ORG and its various organs of government ;","...","( iii ) agencies or instrumentalities of the ORG or other entities , to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the ORG ;","... \u201d","\u201c A ORG enjoys immunity , in respect of itself and its property , from the jurisdiction of the courts of another ORG subject to the provisions of the present Convention . \u201d","\u201c CARDINAL . A ORG shall give effect to ORG immunity under LAW by refraining from exercising jurisdiction in a proceeding before its courts against another ORG and to that end shall ensure that its courts determine on their own initiative that the immunity of that other ORG under LAW is respected .","A proceeding before a court of a ORG shall be considered to have been instituted against another ORG if that other ORG :","( a ) is named as a party to that proceeding ; or","( b ) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property , rights , interests or activities of that other ORG . \u201d","\u201c Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to the determination of :","( a ) any right or interest of the ORG in , or its possession or use of , or any obligation of the ORG arising out of its interest in , or its possession or use of , immovable property situated in the ORG of the forum ;","( b ) any right or interest of the ORG in movable or immovable property arising by way of succession , gift or bona vacantia ; or","( c ) any right or interest of the ORG in the administration of property , such as trust property , the estate of a bankrupt or the property of a company in the event of its winding up . \u201d","\u201c No post - judgment measures of constraint , such as attachment , arrest or execution , against property of a ORG may be taken in connection with a proceeding before a court of another ORG unless and except to the extent that :","( a ) the ORG has expressly consented to the taking of such measures as indicated :","( i ) by international agreement ;","( ii ) by an arbitration agreement or in a written contract ; or","( iii ) by a declaration before the court or by a written communication after a dispute between the parties has arisen ; or","( b ) the ORG has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding ; or","( c ) it has been established that the property is specifically in use or intended for use by the ORG for other than government non - commercial purposes and is in the territory of the ORG of the forum ... \u201d","\u201c ORG representative and his \/ her staff members will be granted the same treatment as personnel of comparable rank in ORG in GPE , except that they will not have diplomatic status and immunity . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22356","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2002,"docname":"LITOVCHENKO v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the Court by Mr PERSON and Mr PERSON , lawyers practising in GPE .","In DATE the applicant , a former gynaecologist \/ obstetrician joined the Jehova \u2019s Witnesses .","In DATE the applicant entered ORG No . CARDINAL in GPE to give birth to her third child . On her admission to the maternity ward at TIME on DATE , she explained to the duty doctor , PERSON , that she was a NORP \u2019s Witness and conscientiously objected to blood transfusions on religious grounds . She asked the medical staff to use effective alternatives that were available . Dr PERSON accepted the applicant as a patient . The applicant also gave PERSON an advance directive , which had been signed and dated before witnesses , expressly refusing a blood transfusion ( even if doctors believed it necessary to preserve her life or health ) , agreeing to accept alternative methods of treatment ( non - blood volume expanders ) and releasing the medical personnel from all liability for any unfavourable consequences resulting from her decision .","At TIME on DATE the applicant gave birth to a baby girl . Although the delivery was uncomplicated , bleeding gradually ensued in the postnatal stage . An entry in the hospital records at TIME stated :","\u201c The woman categorically refuses transfusions of blood and blood components ( for religious reasons ) . \u201d","DATE , instead of adhering to the applicant \u2019s request for available alternatives to be used , the doctor rendered the applicant unconscious with anaesthetic and began to give her a blood transfusion . According to the hospital records , anaesthetic was administered","\u201c with the aim of rendering her unconscious , as she refuses a blood transfusion for religious reasons . \u201d","After the applicant regained consciousness and discovered that she was receiving a blood transfusion , she tried to close the regulator valve and stop the transfusion . The doctor took a syringe and administered a stronger anaesthetic . The hospital records stated :","\u201c During the transfusion the woman periodically turned off the transfusion system , refusing the transfusion . \u201d","Over DATE the applicant received CARDINAL litres of blood , in addition to blood substitutes . The foreign blood came from CARDINAL different donors , including fresh whole blood that had not been tested for HIV virus , Hepatitis B , Hepatitis C , and other blood - borne diseases .","An entry in the hospital records for DATE stated :","\u201c TIME [ The woman ] is conscious , she orients herself properly , but has an inappropriate attitude towards the transfusion of blood components ( which are prohibited by her faith ) . \u201d","On DATE , DATE after the doctors began the blood transfusion , they obtained consent from the applicant \u2019s husband . The hospital records stated :","\u201c The woman belongs to the PERSON sect and categorically refuses blood transfusions . All blood transfusions were conducted under anaesthetic with the husband \u2019s consent . \u201d","On DATE the applicant was transferred to the intensive care unit of ORG No . CARDINAL in GPE ( a hospital that accepts severe cases ) for treatment for her condition , which continued to be serious , her symptoms including persistent fever and blood poisoning . The applicant told her new doctors that she wanted them to use alternatives to blood , and they agreed .","Ultrasound tests to the applicant \u2019s abdomen revealed an unknown fluid that was the source of the problem , and doctors began non - invasive treatment . The applicant \u2019s serious condition , however , continued for DATE . Suspecting an abscess , the doctors finally decided to operate on DATE . The operation revealed that the cause of the poisoning was QUANTITY of thin blood in the applicant \u2019s abdomen following the blood transfusions at ORG . CARDINAL .","In DATE the regional insert PERSON to the national PERSON i PERSON newspaper printed a story containing detailed information on the applicant \u2019s treatment in ORG . CARDINAL , including her name ( given as \u201c PERSON ) , age , religion , profession , number of years\u2019 work experience , and the name of the hospital and the city . The applicant , who was easily identifiable from the publication , had not given her prior consent to the article or published any information herself . The newspaper story said that the information had come from hospital doctors , but they denied this .","On DATE the applicant filed a civil action in ORG requesting a judicial declaration that the fact that she had been forced to have blood transfusions at the ORG hospital had violated her rights as a patient to withhold her consent and to medical privacy , as well as her constitutional rights to respect for her private life and freedom of conscience .","On DATE ORG found that the applicant had made a prior written request signed before CARDINAL witnesses for alternatives to blood to be used . The court dismissed her claim , stating that no mechanism existed in NORP law to enable the right to refuse medical treatment to be exercised and that the choice of treatment was the ORG . It also dismissed the claims against the doctors for breach of medical privacy , holding that that issue had to be resolved by a separate libel action against the newspaper .","On DATE ORG of ORG allowed the applicant \u2019s appeal and ordered a retrial .","On DATE , after CARDINAL postponements due to the ORG repeated failure to appear in court , ORG began a new hearing .","On DATE , after further adjournments , the court appointed a team of independent medical experts to compile a report . The team included CARDINAL pre - eminent NORP doctors , specialising in obstetrics , intensive care , anaesthetics and medical ethics . The experts , whose practical experience ranged from CARDINAL to DATE , reviewed the entire court file , including all the hospital records and the testimony of all the doctors concerned .","On DATE the experts concluded that the blood transfusions had been unnecessary and should have been avoided by adopting standard medical practice that would have been available to the treating doctors in DATE in ORG . The applicant had had toxaemia , and bleeding had been anticipated . It had developed into disseminated intravascular coagulation . The necessary preventive measures had not been carried out . Other measures had been taken late or had been incorrect and had only served to exacerbate the applicant \u2019s condition . The experts\u2019 report highlighted critical errors in the applicant \u2019s treatment .","On DATE ORG dismissed the applicant \u2019s claims in spite of ORG ruling on appeal that LAW of LAW \u201c provides for a citizen \u2019s right to refuse medical treatment , and not medical assistance . \u201d Instead , ORG held that under NORP law , it was for the doctor , not the patient , to decide the treatment . The court also found that the LOC intervention when the applicant had attempted to stop the transfusion by closing the valve was lawful , as applicable laws did not permit euthanasia . The court disregarded the conclusions of the team of experts because its findings were largely based on modern medical theory and practice in DATE while the incident involving the applicant had taken place in DATE .","On DATE ORG denied the applicant \u2019s appeal for reasons similar to those of the trial court .","LAW provides :","\u201c Everyone has the right to freedom and personal inviolability . \u201d","\u201c Everyone has the right to respect for his private life and family life , his home and correspondence . \u201d","LAW , No . GPE , of CARDINAL DATE recognises patient \u2019s rights to \u201c integrity \u201d or personal autonomy and self - determination :","\u201c Patients have the following rights when requesting or receiving medical assistance : ...","( CARDINAL ) fully to make an informed decision on whether to consent to medical treatment in accordance with LAW of this PERSON ;","( CARDINAL) to refuse medical treatment in accordance with LAW of this LAW ... \u201d","\u201c The citizen \u2019s informed voluntary consent is a prerequisite for medical treatment ... \u201d","\u201c A citizen or his legal representative has the right to refuse medical treatment or to demand that it cease , as except in those instances set out on LAW of this PERSON . \u201d","\u201c Medical aid ( medical examinations , hospitalisation , observation and isolation ) shall be permitted without the consent of the patient or his legal representatives if he suffers from a contagious disease or a serious psychiatric disorder or has acted in a dangerous manner on the grounds and under the procedure order prescribed by the legislation of GPE .","A decision on whether to conduct a medical examination on a person or to admit him for observation without his or his legal representative \u2019s consent shall be taken by a doctor ( or a council of doctors ) , while a decision on whether to hospitalise a person without his or his legal representative \u2019s consent shall be taken by a court of law .","The provision of medical assistance without the consent of the patient or his legal representatives , associated with anti - epidemic measures , shall be regulated by healthcare legislation .","Persons suffering from serious psychiatric disorders may be examined and admitted to hospital without their consent under the procedure prescribed by the PERSON of ORG Help and the Guarantees of the Rights of People at the Time it is given .","Compulsory medical measures may be imposed on persons who have acted in a dangerous manner on the grounds and under the procedure established by the legislation of GPE .","Such persons shall remain in a medical institution until there cease to be any grounds for their hospitalisation without their consent or until a court order . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57765","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1992,"docname":"CASE OF ABDOELLA v. THE NETHERLANDS","importance":3,"conclusion":"Preliminary objection rejected (out of time);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"N. Valticos","text":["On DATE Mr PERSON was taken into police custody and charged with incitement to murder . He was subsequently detained on remand .","On the conclusion of the investigations , in which several suspects were involved , he was summoned , on DATE , to appear for trial before ORG ( Arrondissementsrechtbank ) of GPE . On DATE he was convicted and sentenced to CARDINAL years\u2019 imprisonment less the time already spent in police custody and in detention on remand .","The applicant appealed to ORG ( Gerechtshof ) of GPE . By judgment of CARDINAL DATE it upheld ORG decision .","The applicant then , within the time - limit of DATE prescribed by GPE law ( see paragraph CARDINAL ( d ) below ) , introduced an appeal on points of law to ORG ( PERSON ) by means of a statement made at the registry of ORG . The documents of the case were sent by the registry of that court to the registry of ORG and received there on DATE . PERSON in his advisory opinion proposed its dismissal . However , by judgment of DATE , ORG quashed ORG judgment on technical grounds and referred the case to ORG . The registry of ORG sent the documents to the registry of ORG on DATE ; they were received on DATE .","On DATE the Attorney - General at ORG issued a summons against the applicant . ORG heard the case on DATE .","During the hearing the applicant requested a suspension of his detention on remand and also an adjournment of the hearing in order to have examined CARDINAL witnesses who had been summoned at the request of the defence but who had failed to appear . ORG refused the first request . However , with the agreement of counsel for the defence it adjourned the hearing until DATE ; the reason given for a delay of that length ( see paragraph CARDINAL ( a ) below ) was that the court \u2019s calendar for the intervening period did not permit an earlier date .","ORG resumed its hearing on DATE , at which point the witnesses who had failed to appear on DATE were examined . It refused a new request by the applicant for suspension of his detention on remand .","By judgment of CARDINAL DATE ORG convicted the applicant and sentenced him to CARDINAL years\u2019 imprisonment less the time already spent in police custody and detention on remand .","Within the time - limit of DATE prescribed by GPE law , Mr PERSON introduced a second appeal on points of law to ORG by means of a statement made at the registry of ORG .","Pending the hearing of that appeal the applicant made a number of requests to ORG concerning his detention on remand . It suspended the measure for DATE in DATE and again for DATE in DATE . However , on DATE it rejected a request , based inter alia on Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ( article CARDINAL , article DATE ) of the LAW , for the detention to be terminated or else suspended .","In DATE ORG again granted CARDINAL GPE leave , but refused to terminate or otherwise suspend the detention .","The documents of the case were sent by the registry of ORG to the registry of ORG , which received them on DATE . On a date in DATE , the President of ORG set the hearing for DATE . The applicant , through his counsel , subsequently filed his grounds of appeal .","Counsel for the defence proposed CARDINAL grounds of appeal . The first of these , the CARDINAL which raised points with which this ORG is concerned , was a complaint about violation of , inter alia , Article CARDINAL para . CARDINAL in conjunction with Article CARDINAL para . CARDINAL ( c ) and LAW CARDINAL ( article CARDINAL , article CARDINAL - CARDINAL-c , article DATE ) of the LAW . The explanatory note emphasised that the applicant had been in police custody and detention on remand since DATE and that , as a consequence , both he and his family had developed psychiatric problems . Detention on remand had only been suspended twice on this ground , in each case for DATE , the last such occasion having been in DATE . Although the case was not complex , it had already taken DATE , so that the \" reasonable time \" laid down by LAW had been exceeded . A separate assessment of the various phases of the proceedings led to the same conclusion : in particular , the lapses of time involved in the first appeal on points of law , that involved in the procedure before ORG and the treatment of the second appeal on points of law were such that the said provisions had not been complied with .","In accordance with the advisory opinion filed on CARDINAL DATE by ORG dismissed the applicant \u2019s appeal by judgment of CARDINAL DATE . It held , inter alia , that it had to be assumed that neither the applicant nor his counsel had raised the issue of the length of the proceedings at ORG hearings on DATE and DATE ; that the mere circumstance that the preparation of the case and its examination by ORG and ORG of GPE and ORG had taken DATE ( DATE ) did not in itself oblige ORG to address explicitly the question whether or not the case had been decided within a reasonable time ; and that in addition , taking into account the time that had elapsed between ORG judgment of DATE and ORG DATE hearing , no violation of Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ( article CARDINAL , article DATE ) of the LAW had taken place . The personal circumstances of the applicant did not warrant any other conclusion .","On DATE Mr PERSON submitted a request for a pardon . This was refused on CARDINAL DATE by the Deputy Minister of Justice ( ORG ) .","An application for review was lodged by the applicant on DATE but declared inadmissible by ORG on DATE .","The applicant was released from prison on DATE .","The following is a translation from the original NORP of the relevant provisions of LAW ( Wetboek van Strafvordering ) .","\" CARDINAL . If the accused is in detention on remand , the following paragraphs of this article shall apply .","If ORG suspends the examination at the hearing for a fixed period , it shall as a rule set the period of the suspension at no longer than DATE . For compelling reasons , which are to be mentioned in the official record , it can decide on a longer period , but in no case DATE .","... \"","For the purposes of this provision , DATE is taken to mean DATE ( Article CARDINAL para . CARDINAL ) . Article PERSON is equally applicable to proceedings before ORG ( Article CARDINAL ) .","\" CARDINAL . The judgment shall be signed within TIME after its pronouncement by the judges who heard the case and by the registrar who was present at the deliberations .","If CARDINAL or more of them are unable to do so , this shall be mentioned at the end of the judgment .","As soon as the judgment is signed , and in any case after the end of the period laid down in the first paragraph , the accused or his counsel can take cognisance of it and of the official record of the hearing . \"","This article too is equally applicable to proceedings before ORG ( Article CARDINAL ) .","\" CARDINAL . An objection [ against a default judgment ] , an appeal or an appeal on points of law shall be lodged by means of a statement to be made by the person exercising that legal remedy at the registry of the court by which or at which the decision was given .","...","... \"","\" CARDINAL . An appeal must be filed :","a. if the summons to appear at the hearing has been notified to the accused in person or the accused has appeared at the hearing , within DATE after the pronouncement of the final judgment ;","b. in other cases , within DATE after a circumstance has occurred from which it follows that the accused is aware of the judgment .","... \"","\" CARDINAL . After an appeal is filed , the registrar of the ORG shall send the documents of the case to the registrar of ORG as soon as possible .","... \"","\" CARDINAL . An appeal on points of law must be filed :","a. if the summons to appear at the hearing has been notified to the accused in person or the accused has appeared at the hearing , within DATE after the pronouncement of the final judgment ;","b. in other cases , within DATE after a circumstance has occurred from which it follows that the accused is aware of the judgment .","... \"","\" CARDINAL . The prosecution ( Openbaar ministerie ) is obliged , on pain of inadmissibility of the prosecution , to file , together with its appeal or within DATE thereafter , at the registry of its court , a written statement of its grounds of appeal on points of law .","The accused by whom or in whose name an appeal on points of law has been filed is entitled to file such a written statement with ORG until DATE of the hearing at the latest .","The registrar of the court which delivered the judgment shall send the documents of the case to the registrar of ORG within DATE after the time - limit for the prosecution to file its written statement has expired or after it has filed a written statement earlier .","... \"","In practice it was generally assumed that the time - limit according to paragraph CARDINAL of this article was DATE after the date of pronouncement of ORG judgment , irrespective of whether or not the prosecution had lodged an appeal on points of law .","Before the LAW of DATE ( Staatsblad ( Official Gazette ) CARDINAL ) , which altered ( inter alia ) Article CARDINAL para . CARDINAL , this provision , like LAW , provided only that the documents were to be sent in \" as soon as possible \" . The time - limit of DATE was introduced \" with a view to expediting the transmission of the file \" .","By the LAW of DATE ( Staatsblad CARDINAL ) , which came into force on DATE , the time - limit of DATE incorporated in the third paragraph of Article CARDINAL in DATE was removed ; that paragraph now once more provides that the documents are to be sent in \" as soon as possible \" . The reasons given therefor were firstly that , according to the case - law of ORG ( see paragraphs CARDINAL and CARDINAL below ) , non - compliance with Article CARDINAL para . CARDINAL did not entail nullity and the rights of the accused in case of unreasonable delay in the proceedings before ORG were in any case protected by Articles CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and CARDINAL para . CARDINAL of LAW . Secondly , it was pointed out that in practice this time - limit was only rarely met and that it appeared inappropriate to maintain a provision which \" in relation to the - speedy - pursuit of the proceedings before ORG creates expectations which in practice can hardly if at all be fulfilled \" .","\" CARDINAL . After the documents have been at the registry for DATE , they shall be taken by the Procurator - General against receipt and forwarded to ORG along with his proposal for fixing a hearing date .","The president shall fix the date for the hearing and shall appoint a rapporteur to report at the hearing . \"","After referral by ORG , the documents of the case must be sent by its registry to the registry of the court which is to retry the case . However , due to the fact that LAW contains no provisions at all relating to proceedings after referral , a provision comparable to Articles CARDINAL and CARDINAL and applicable in these cases does not exist .","Non - compliance with Article CARDINAL para . CARDINAL or Article CARDINAL para . CARDINAL of LAW does not , according to the case - law of ORG , entail nullity : that sanction is not expressly provided for ; neither are these provisions so essential that non - compliance should ipso facto lead to nullity . However , non - compliance is relevant in connection with the question whether the requirement of trial \" within a reasonable time \" within the meaning of Article CARDINAL ( article CARDINAL ) of the LAW has been complied with ( see , for instance , the judgments of ORG of DATE , GPE ( PERSON ) DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) .","The case - law of ORG relating to the requirement of \" trial within a reasonable time \" within the meaning of Article CARDINAL ( article CARDINAL ) of the LAW in general , and more especially in relation to the question of the consequences of non - compliance with Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of LAW , may be summarised as follows .","( a ) If the court decides to impose a more lenient sentence , it must take into account the extent of the violation and also indicate the reduction which it has thought fit to apply ( see , for instance , ORG judgments of CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ) .","( b ) In order to determine whether or not a \" reasonable time \" has been exceeded , the court must consider both the various phases of criminal proceedings and their overall time - span and take into account all appropriate circumstances in reaching its decision , such as the complexity of the case , the conduct of the accused and the way in which the case has been handled by the competent authorities ( see , for instance , the judgment of ORG of DATE , GPE DATE , CARDINAL ) .","( c ) As the decision as to whether or not a reasonable time has been exceeded is thus partly dependent on the assessment of factual circumstances , ORG , which essentially has competence only as regards points of law , can examine the validity of the decision of the judge of fact only to a limited degree ; thus a judgment can only be quashed if it reveals an incorrect view of the concept of trial within a reasonable time or of the standards set out in the preceding paragraph , or if the grounds given for its decision are insufficient ( see , for instance , the judgments of ORG of DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ) .","Although ORG has held that delaying criminal proceedings for DATE does not in itself warrant the conclusion that a \" reasonable time \" has been exceeded ( see its judgment of DATE , GPE DATE , CARDINAL ) , it is commonly assumed that in its above - mentioned limited assessment it applies , as a general guideline , a rule presumed to have been derived from the report of ORG in application no . CARDINAL\/CARDINAL ( Marijnissen ) ( Decisions and Reports CARDINAL , pp . CARDINAL - CARDINAL ) endorsed by ORG in its resolution of DATE ( DH ( CARDINAL)CARDINAL ) . This rule may be summarised as follows : in principle , a \" reasonable time \" has been exceeded if the proceedings in CARDINAL of their phases have not been pursued for DATE due to circumstances for which the accused is not responsible ; if such an eventuality occurs and is pleaded by the defence , then a rejection of that plea must be particularly well reasoned . The character of this rule as a general guideline implies , on the one hand , that under certain circumstances stagnation for a shorter period may be a reason for applying such strict requirements to the grounds given for rejecting the defence \u2019s plea that a reasonable time has been exceeded and , on the other hand , apparently , that exceeding the time - limit of DATE may sometimes , perhaps also depending on the further circumstances of the particular case , be allowed to pass .","( d ) The courts must also address ex officio the question whether a reasonable time has been exceeded . However , it must only appear from the judgment that this has been done if there are special circumstances .","In considering whether or not such special circumstances are present , ORG uses the general guideline , mutatis mutandis , indicated in sub - paragraph ( c ) . This means that , as a rule , it only holds the lower courts bound to address ex officio the question whether or not a reasonable time has been exceeded if it appears from the documents that the proceedings have been held up for DATE due to reasons for which the defence can not be held accountable . However , if there are special circumstances , the courts are obliged to address the question ex officio even if the period of inactivity is shorter ( see , for instance , ORG judgments of DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ) .","( e ) The ORG applies these rules itself in the procedure of appeal on points of law and thus addresses , ex officio if need be , the question whether it must be assumed that the duration of proceedings in this phase has led to excessive length of the proceedings . In this connection , it appears from its abundant case - law that the time elapsed between the filing of the appeal on points of law and the sending in of the documents to the registry of ORG has some significance : if this causes such a delay that the case comes up before ORG for the first time DATE after the appeal on points of law was filed , then as a rule the judgment will be quashed and the case will be referred for retrial , at which point the judge of fact will have the options indicated in sub - paragraph ( a ) above of declaring the prosecution inadmissible or of reducing the sentence . However , ORG may itself reach the opinion that no other decision is possible than to declare the prosecution inadmissible , which it may then do of its own motion ( see , for instance , its judgments of CARDINAL DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ) . On the other hand , if the period of inactivity is shorter , ORG will merely state that the delay is longer than is desirable but that judgment of the case can not be held not to have taken place within a reasonable time ; it will then determine , applying the rule set forth in the preceding sub - paragraph , whether or not special circumstances warrant any different decision ( see , for instance , its judgments of CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75599","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF FEDORENKO v. UKRAINE","importance":2,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the town of PERSON , the GPE region , GPE .","On DATE the applicant sold his house for UAH CARDINAL to ORG ( hereafter \u201c the GPE \u201d ) , responsible for the logistical support of the judiciary . ORG was represented in the transaction by PERSON , the President of ORG . The contract was certified by a notary and specified that the purchase price had to be paid in CARDINAL instalments : UAH CARDINAL and CARDINAL to be paid by CARDINAL DATE and DATE respectively . The contract also contained a clause stating the following :","\u201c In case if the exchange rate of the ORG depreciates the overall sum to be paid can not be less than the ORG equivalent of ORG . \u201d","NORP In DATE the applicant was paid UAH CARDINAL . In DATE the ORG substantially weakened against GPE dollar . In DATE and DATE the applicant received UAH CARDINAL and CARDINAL respectively .","The applicant instituted proceedings against the ORG , claiming that it had failed to fulfil its obligations under the contract , as the sum paid did not take into account the substantial depreciation of the exchange rate of the ORG . Thus , according to the applicant , he had lost some USD CARDINAL,CARDINAL .","On DATE the Kirovsky District Court of Kirovograd ( hereafter \u201c the ORG \u201d ) rejected this claim as unsubstantiated . On DATE the ORG of ORG , following the protest ( extraordinary appeal ) of the Deputy President of this court , quashed the judgment and remitted the case .","On DATE , in the course of a new hearing , the ORG lodged a counterclaim seeking the annulment of the contract on the ground that PERSON had exceeded his powers in agreeing to the dollar value clause .","On DATE the Kirovsky ORG of Kirovograd granted the applicant \u2019s claim and rejected that of ORG . The court established that the clause in issue aimed at ensuring the stability of the contract and protecting the applicant against inflation . The court further found that the applicant had suffered increased financial losses due to the erosion of the ORG \u2019s purchasing power during the lengthy delay in execution of the contract . It found that the amount eventually paid to him on DATE final transaction had only been ORG . The court awarded the applicant ORG in compensation for the devaluation of the Hryvna , ORG CARDINAL,CARDINAL.CARDINAL in statutory interest for the delay and ORG CARDINAL in court costs .","The ORG appealed against this judgment and , on DATE , ORG ( hereafter \u201c the ORG \u201d ) quashed it and rejected the applicant \u2019s claim . The court found in favour of the ORG on both of their objections . It noted that PERSON had acted ultra vires by conceding the inclusion of the disputed provision in the contract without the prior consent from the ORG . ORG further stated that , according to LAW ) , the PERSON was the only currency which could be used for internal transactions . The court did not find convincing ORG argument that the impugned clause protected the applicant from inflation , since LAW DATE provided for compensation for losses incurred due to inflation if the execution of a contract was delayed .","ORG acknowledged that the price for the apartment was paid with considerable delay and that the applicant , having made the relevant claim before the court , had the right to be awarded statutory interest at the rate of PERCENT per annum . Taking into account that the applicant had already received CARDINAL PERSON ( paragraph CARDINAL above ) , ORG found it appropriate to award him further ORG CARDINAL.CARDINAL .","On CARDINAL DATE ORG rejected the applicant \u2019s request for leave to appeal in cassation .","Article CARDINAL of the Decree provided that the currency of GPE ( i.e. the Hryvna ) was the only lawful means of payment in GPE .","According to LAW , a contract concluded contrary to the law should be declared invalid . If the contract is invalidated the parties should return to each other all that was received in execution of the contract .","Article CARDINAL of the Code provided that a debtor who had delayed the execution of a financial undertaking was obliged , on the request of the creditor , to pay the debt taking into account the established index of inflation for the period of delay , as well as statutory interest at PERCENT per annum ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69028","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF CHIZHOV v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Zoryana Bortnovska","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON .","On DATE the applicant was apprehended by police officers PERSON and PERSON On DATE he was brought to the medical sobering - up facility by these officers . In the course of the applicant \u2019s apprehension the police officers inflicted bodily injuries on him , resulting in a short - term health disorder .","On DATE the applicant was charged with assaulting and attempting to bribe them .","On DATE the GPE ORG of PERSON acquitted the applicant .","The applicant complained to ORG and ORG seeking to institute criminal proceedings against the police officers who had unlawfully apprehended and harmed him .","On DATE the applicant initiated civil proceedings against the Zaporizzhia ORG in the GPE ORG of Zaporizzhia , seeking compensation for the moral damage caused by the actions of PERSON and L.G.T.","NORP On DATE ORG of PERSON instituted criminal proceedings against the officers .","On DATE the GPE ORG of Zaporizzhia sentenced B.Y.Y. and PERSON to a DATE suspended prison sentence following their conviction for abuse of power and inflicting bodily harm on the applicant . It also ordered the Zaporizzhia ORG to pay the applicant ORG in compensation for pecuniary and non - pecuniary damage .","On DATE the ORG upheld that decision .","On DATE the GPE ORG of PERSON initiated the execution proceedings for the judgment of DATE .","On DATE the writ of execution was lodged with the GPE ORG in Zaporizzhia .","On CARDINAL DATE the respondent in the case was changed from ORG of PERSON to ORG of PERSON , because the latter was responsible for managing the medical sobering - up facilities .","On DATE the writ of execution was transferred to the ORG for further enforcement .","In DATE ORG confirmed the lack of funds of ORG .","On DATE the applicant lodged a motion to attach the property of the NORP ORG .","On DATE the Ordzhonikidze ORG of ORG informed the applicant that the attachment of the property of a ORG institution was prohibited by law .","On DATE the Ordzhonikidze ORG informed the applicant of the DATE ORG lack of funds . It also stated that the latter owned no property and therefore attachment was not possible .","During DATE , the applicant repeatedly lodged a number of motions with ORG , ORG , ORG , ORG of GPE and ORG , seeking to institute criminal proceedings against various officials of the DATE ORG , the execution service officials , Judge PERSON of the GPE ORG , and a private person , ORG , who had allegedly assaulted the applicant .","On DATE the ORG terminated the proceedings in the applicant \u2019s case due to the lack of funds of the Zaporizzhia ORG . The Government mentioned that the applicant retained a right to reintroduce the writ of execution with ORG for DATE .","On DATE the Deputy President of ORG of GPE refused to initiate supervisory review proceedings in the applicant \u2019s case . It also remitted the applicant \u2019s claims concerning the non - execution of the judicial decision to ORG .","On DATE the ORG issued resolution no . CARDINAL\/CARDINAL concerning the institution of the enforcement proceedings for the judgment of DATE . It also proposed to the debtor that it enforce the judgment given in the applicant \u2019s favour voluntarily . On DATE the resolution instituting the criminal proceedings was sent to the Zaporizzhia ORG and to the applicant .","On DATE the bailiff requested ORG to transfer the funds awarded to the applicant by the judgment of CARDINAL DATE to his account .","On DATE the applicant requested that the funds be transferred to his account .","On DATE the judgment of CARDINAL DATE was enforced and the applicant received ORG .","On DATE the ORG terminated the execution proceedings in the case in view of the fact that the judgment of DATE had been enforced in full .","The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94220","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF HAPESHIS AND OTHERS v. TURKEY","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants , who are siblings , were born in DATE , DATE , DATE and DATE respectively . The first applicant ( who is a NORP and NORP citizen ) lives in GPE ; the second , third and fourth applicants all reside in GPE . The second applicant is a NORP citizen , while the third and fourth applicants are NORP citizens .","On DATE , as the NORP troops were advancing , the applicants ' father left the village of ORG in LOC , where he owned the following immovable properties :","( a ) plot of land with trees in GPE ( plot no . CARDINAL , sheet \/ plan CARDINAL , registration no . DATE , area : hectares ( h. ) CARDINAL , decares ( d. ) QUANTITY ( m\u00b2 ) CARDINAL ) ;","( b ) plot of land with trees in GPE ( plot no . CARDINAL , sheet \/ plan CARDINAL , registration no . DATE , area : h. CARDINAL , d. CARDINAL , m\u00b2 CARDINAL ) ;","( c ) plot of land with trees in GPE ( plot no . CARDINAL , sheet \/ plan CARDINAL , registration no . DATE , area : h. CARDINAL , d. CARDINAL , m\u00b2 CARDINAL ) ;","( d ) plot of land with trees in ORG ( plot nos . CARDINAL and CARDINAL , sheet \/ plan CARDINAL , registration no . DATE , area : d. CARDINAL , m\u00b2 CARDINAL ) ;","( e ) plot of land with trees in Spati ( plot no . ORG , sheet \/ plan CARDINAL , registration no . DATE , area : d. CARDINAL , m\u00b2 CARDINAL ) ;","( f ) plot of land with trees in ORG ( plot no . CARDINAL , sheet \/ plan CARDINAL , registration no . DATE , area : m\u00b2 CARDINAL ) ;","( g ) plot of land with trees in ORG ( plot no . CARDINAL , sheet \/ plan CARDINAL , registration no . DATE , area : d. CARDINAL , m\u00b2 CARDINAL ) ;","( h ) plot of land in PERSON ( plot no . CARDINAL , sheet \/ plan CARDINAL , registration no . DATE ; area : d. CARDINAL , m\u00b2 CARDINAL ) .","NORP In support to their claim that their father was the owner of the above - mentioned plots of land , the applicants submitted copies of the title deeds and of the relevant certificates of ownership .","On DATE the applicants ' father tried to visit his property but was arrested by NORP soldiers . He was released on DATE , since he was a NORP citizen .","On DATE the applicants ' father died . According to his will , dated DATE , the plot described under paragraph CARDINAL ( a ) above was to be inherited by the first applicant and the other plots were to be inherited by the CARDINAL applicants in equal shares . On DATE , Mr GPE was appointed as executor of the will of the applicants ' father . The applicants registered their titles with ORG on DATE . The first applicant tried , via the NORP consular authorities , to visit the properties at issue , but did not obtain permission .","NORP In a letter of DATE , the applicants informed the ORG that GPE was planning to construct a highway at the edge of their properties and that an area of m\u00b2 CARDINAL had been taken for this purpose . The applicants had not been consulted on the matter and no compensation had been offered to them ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57937","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1995,"docname":"CASE OF SPADEA AND SCALABRINO v. ITALY","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of P1-1;No violation of Art. 14+P1-1","judges":"C. Russo","text":["ORG Mr PERSON , a lawyer , and PERSON , a university teacher , live in GPE .","ORG In DATE they bought CARDINAL adjacent flats with the aim of making their home there . The former owner of the flats had let them to a PERSON and a PERSON , who paid a rent subject to public - authority control .","ORG In a writ served on CARDINAL DATE the applicants gave the tenants of the flats notice to quit when the leases expired , on DATE , and summoned them to appear before the GPE magistrate ( pretore ) .","ORG On DATE and CARDINAL DATE the magistrate formally confirmed the notices to quit , and fixed the date of eviction at DATE . The orders were made enforceable on CARDINAL DATE and DATE .","ORG Pursuant to Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE ( \" Law no . CARDINAL \" ) , the magistrate suspended enforcement of the evictions until DATE .","ORG On DATE , Mr PERSON and PERSON began proceedings to enforce the orders for possession , as the tenants had still not complied with them . However , on each of QUANTITY occasions when the bailiff responsible for enforcement went to the flats - DATE , DATE and DATE and PERSON refused to leave . They were elderly ladies of modest means and had asked ORG to allocate them low - rent flats .","Legislative Decree no . CARDINAL of DATE , which became Law no . CARDINAL of DATE , suspended the enforcement of evictions until DATE . From that date until DATE , only the ORG ( prefetto ) was empowered , in certain cases , to grant police assistance to enforce evictions .","ORG On DATE , DATE , DATE , DATE , DATE and DATE the bailiff made unsuccessful attempts to enforce the orders for possession .","ORG From DATE enforcement of evictions was again suspended , initially until DATE , by Legislative Decree no . CARDINAL of CARDINAL DATE , which became LAW no . CARDINAL of DATE , and then until DATE , by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .","ORG In DATE PERSON died and the applicants regained possession of CARDINAL of the flats . PERSON left the other in DATE . In the meantime , on CARDINAL DATE , Mr PERSON and PERSON had been obliged to buy another flat .","ORG On the basis of the ORG 's report , NORP legislation on residential property leases may be summarised as follows .","Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of evictions .","The last statutory extension of all current leases , with the exception of certain cases specifically prescribed by the PERSON , was introduced by PERSON no . CARDINAL of DATE and remained in force until DATE , CARDINAL DATE or DATE , depending on the dates on which the leases were signed .","It should , however , be noted that , as regards buildings used for purposes other than housing , the statutory extension of current leases prescribed by LAW no . CARDINAL of DATE was declared unconstitutional in a decision ( no . CARDINAL ) handed down by ORG on DATE . In its decision the court held that the statutory restrictions imposed on property rights under LAW , with a view to ensuring social justice , made it possible to regard controls imposing restrictions as legitimate , provided that such controls were of an exceptional and temporary nature , but that perpetuating such restrictions was incompatible with the protection of property rights embodied in LAW .","In its decision ORG also pointed out that the statutory DATE extension of leases prescribed by PERSON no . CARDINAL should not be considered in isolation but within the context of tenancy provisions as a whole . The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field . Moreover , the statutory extension of leases had the effect of prolonging contracts in which the rent , notwithstanding the increases allowed in accordance with rises in the cost of living , were not even approximately in line with current socio - economic conditions . Further , the PERSON concerned did not give the lessor the possibility of regaining possession of the property except in cases of absolute necessity .","ORG also held that PERSON no . CARDINAL , inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice - , infringed the principle of the equality of citizens before the law embodied in LAW .","Numerous provisions have established rules for the postponement , suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the LOC they occupy ( ordinanze di sfratto ) .","A first suspension was introduced by Legislative Decree no . CARDINAL of DATE . The provisions set forth therein were incorporated in Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE . It covered the period from DATE to CARDINAL DATE . This legislation also provided for the staggered resumption of forcible evictions on DATE , CARDINAL DATE , CARDINAL DATE or DATE , depending on the date on which the judgment recording the end of the lease had become enforceable .","Section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL stipulated that such suspensions were not applicable if repossession of the LOC had been ordered because arrears of rent were owed . Similarly , no suspension could be ordered in the following cases :","( a ) where , after conclusion of the contract , the lessor required the property for his own use or for that of his spouse or his children or grandchildren , for residential , commercial or professional purposes , or where a lessor who intended to use the premises for one of the above - mentioned purposes ( a ) offered the tenant similar accommodation at a rent which he could afford and which was not PERCENT higher than the previous rent and ( b ) undertook to pay the costs of the tenant 's removal ( DATE subsection , paragraphs CARDINAL , CARDINAL , DATE and DATE , of PERSON no . CARDINAL of DATE ( \" Law no . CARDINAL \" ) ) ; and","( b ) where , inter alia , a lessor urgently needed to regain possession of his flat as accommodation for himself , his children or his ascendants ( LAW , first paragraph , sub - paragraphs CARDINAL , DATE , DATE and DATE , of Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE ( \" Law no . CARDINAL \" ) ) .","A second suspension was introduced by Legislative Decree no . CARDINAL of CARDINAL DATE , which became LAW no . CARDINAL of DATE .","It covered the period from DATE and in sections CARDINAL and CARDINAL provided for the same exceptions as the provisions in the preceding legislation .","Law no . CARDINAL of DATE also established that the ORG was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants , after consulting a committee including representatives of both tenants and landlords .","Section CARDINAL ( CARDINAL bis ) of PERSON no . CARDINAL of DATE also provided for the automatic suspension until DATE of forcible evictions of tenants entitled to subsidised housing .","A third suspension was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE . It first covered the period from CARDINAL DATE to DATE and was subsequently extended from the latter date to DATE .","A fourth suspension was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE , and covered the period up to DATE . In regions suffering from natural disasters the suspension remained in force until DATE .","With the exception of urgent cases , this PERSON also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of DATE from DATE and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently .","All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","P1"],"non_violated_paragraphs":["P1-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80929","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF DOVGUCHITS v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6;Violation of P1-1","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in the town of ORG in LOC . He is a former military officer .","In DATE the applicant sued his military unit for wage arrears for his military service in DATE when he had taken part in a military operation in NORP .","On DATE ORG of FAC upheld the action and awarded the applicant MONEY ( RUR ) . The judgment was not appealed against and became final .","On DATE the applicant received a writ of execution and submitted it to ORG of ORG . On DATE , after ORG of ORG had refused to execute the judgement , the applicant submitted the writ to ORG of GPE .","On DATE the applicant was discharged from the army .","On DATE the Presidium of ORG of ORG , by way of a supervisory review , quashed the judgment of DATE and remitted the case for a fresh examination to ORG of FAC .","On DATE ORG of ORG decided not to examine the action as the applicant had defaulted at CARDINAL hearings .","On DATE the Military Section of ORG of GPE , acting on a supervisory review , found that the applicant had not been duly summonsed to the hearings before ORG of FAC , quashed the judgment of DATE and the decision of DATE and ordered a re - examination of the case by the Presidium of ORG of ORG .","On DATE the Presidium of ORG of ORG , by way of supervisory - review proceedings , re - examined the case , awarded the applicant ORG and dismissed the remainder of his claims .","NORP In DATE the applicant asked ORG of GPE to initiate a supervisory review in respect of the judgment of DATE . On CARDINAL DATE the request was dismissed .","NORP In DATE the applicant unsuccessfully requested the President of ORG of GPE to quash the judgment of DATE by way of a supervisory review . On DATE the Vice President of ORG of the Russian Federation refused to institute supervisory - review proceedings in respect of the judgment of DATE ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92667","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF BATSANINA v. RUSSIA","importance":2,"conclusion":"Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Alvina Gyulumyan;Anatoly Kovler;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in the town of GPE , in GPE .","The applicant 's husband was a staff member of ORG of ORG , a ORG - owned institution . In DATE he was placed on a waiting list to receive housing . In DATE he was on the top of the list . In order to obtain a larger flat from the ORG , it was agreed that the applicant would transfer title to her own flat to ORG . On DATE the applicant and the ORG signed an exchange agreement . The ORG subsequently discovered that the applicant had sold her old flat in DATE .","On an unspecified date , having become aware of the above transactions , the ORG town prosecutor , acting on behalf of ORG and the person who had been allocated the applicant 's flat ( a Mr M ) , brought proceedings against the applicant and her husband to have the exchange agreement invalidated and to evict the applicant 's family from the flat granted to her husband . The applicant 's husband brought a counter - claim seeking the acknowledgement of his right to the new flat received from ORG .","On DATE the ORG of the Krasnodar Region granted the public prosecutor 's claim . On DATE the ORG quashed the judgment and ordered a re - examination of the case by the first - instance court .","The first instance heard the prosecutor , the applicant , her husband and their counsel . ORG and PERSON representatives were also present and made submissions to the court . On DATE ORG granted the public prosecutor 's claim . On DATE ORG dismissed the counter - claim in a separate judgment . The applicant appealed . On DATE ORG upheld the judgments of CARDINAL and DATE . The prosecutor was present at the appeal hearing . There is no written proof that the applicant received any summons for the appeal hearing scheduled for DATE .","On DATE ORG refused to initiate supervisory proceedings in respect of the above judgments . It rejected , inter alia , the applicant 's complaint about non - notification of the appeal hearing , noting that the parties had been apprised of it .","In the meantime , on DATE criminal proceedings were instituted against the applicant on suspicion of embezzlement in relation to the same facts . On DATE the case was discontinued for lack of a corpus delicti . On DATE the above decision was quashed and the preliminary investigation was resumed . Its outcome remains unclear .","The RSFSR Code of Civil Procedure ( ORG ) in force at the material time read as follows :","\u201c A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage , if it is required for the protection of ORG or public interests or rights and lawfully protected interests of citizens ...","The prosecutor who participates in the proceedings may study the case materials , bring challenges , produce evidence , take part in the examination of evidence , lodge applications , state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole , as well as perform other procedural actions provided for by law ... \u201d","The Prosecutor 's Offices Act ( Federal Law no . CARDINAL-I of CARDINAL DATE ) , as in force at the material time provided :","\u201c ... CARDINAL . In accordance with the procedural legislation of GPE , prosecutors shall participate in the hearing of cases by courts of law and commercial courts ( hereinafter referred to as the \u201c courts \u201d ) and shall challenge any court decisions , sentences and rulings which are contrary to the law ... \u201d","\u201c CARDINAL . The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of GPE and other federal laws ...","The prosecutor , in accordance with the procedural legislation of GPE , shall be entitled to make an application to the court or to enter the case at any stage of the proceedings , if the protection of civil rights and lawful interests of society or the state so requires ... \u201d","Article CARDINAL of the RSFSR CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case . Where necessary , the parties could be summoned by a phone call or a telegram . Pursuant to Articles CARDINAL and CARDINAL , court summonses were to be sent by mail or by courier and served on the person who was a party to the case .","According to Instruction no . CARDINAL issued by ORG of ORG of GPE on DATE , in force at the material time , there was no requirement for registering acknowledgment - of - receipt cards for summons ; the cards were to be filed into the relevant case files ( point CARDINAL ) . Under Instruction no . CARDINAL issued on DATE , the storage period for case files in civil cases examined by a first - instance court on the merits varied from DATE depending on the nature of the case ; certain case files had to be stored for an indefinite period of time ; the storage period for case files in civil cases examined by a court of appeal amounted to DATE ; registers of incoming correspondence were to be kept for DATE ; copies of summons issued by regional courts were to be kept for DATE .","The relevant part of ORG Resolution CARDINAL ( DATE ) On ORG in ORG by LAW reads as follows :","\u201c it is essential :","a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights ;","b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors , with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government ; and","c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system , with separate , appropriately located and effective bodies established to discharge any other functions ... \u201d","ORG ) at its CARDINALrd plenary session ( DATE ) adopted an Opinion on the Prosecutor 's Offices Act ( see above ) . Its relevant provisions provide as follows :","\u201c ... DATE ... It is , of course , clear that ORG is among those Offices which does not conform to the model which ORG considered to be essential . Moreover , in respect of the ORG 's predominant role in the NORP administration , which can hardly be described as limited or exceptional , ORG does not seem to conform to the tests ... which are as follows :","In addition to the essential role played by prosecutors in the criminal justice system , some member states of ORG provide for the participation of the prosecutor in the civil and administrative sectors for historical , efficiency and economic reasons but their role should always be exceptional ( principle of exceptionality ) .","The role of the prosecutor in civil and administrative procedures should not be predominant ; the intervention of the prosecutor can only be accepted when the objective of this procedure can not , or hardly be ensured otherwise ( principle of subsidiarity ) .","The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well - founded , recognisable aim ( principle of speciality ) .","GPE can entitle prosecutors to defend the interest of the state ( principle of protection of state interest ) .","Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality ( principle of legality ) .","In case it is required for reasons of public interest and\/or the legality of decisions ( e.g in cases of protection of the environment , insolvency etc . ) the participation of the prosecutor can be justified ( principle of public interest ) .","Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor ( principle of protection of human rights ) ...","Prosecutors should have no decision - making powers outside the criminal field or be given more rights than other parties before courts ( principle of equality of arms ) .","Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well - grounded reasons ( principle of non - discrimination ) ...","There have been undoubted reforms in the NORP system of ORG , notably the limitations on the prosecutor 's powers of supervisory review of court decisions ... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned \u201d .","Opinion no . CARDINAL ( DATE ) adopted by ORG , an advisory body set up by ORG by its decision of DATE , contains the following comparative analysis [ internal footnotes omitted ] :","\u201c CARDINAL . Court actions \u2013 irrespective of the procedural rules governing them ( rules of civil proceedings or special administrative law rules ) \u2013 are bound to court proceedings : prosecutors act as parties therein . Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners , they have the same powers as other parties . Their position is not exclusive , the proceedings may be started by other interested persons as well . In such cases prosecutors have definitely no decision - making powers regarding the merit of cases , their decisions concern only initiation of a case : submitting a petition to the civil law court .","Almost in all countries where prosecutors have competences in the non criminal field , prosecutors are empowered to launch new court - actions , to use ordinary and extraordinary remedies ( appeals ) as parties of proceedings . However some rules could be identified ( prohibition of extraordinary appeal or proposal for reopening of proceedings ; prohibition of settlement in the name of the party ) ...","The aims of non penal activities of prosecutors , irrespective of their substantive or procedural differences , are much more concordant : ensuring rule of law ( integrity of democratic decisions , legality , observance of law , remedy against violation of law ) , protection of rights and liberties of persons ( mostly of those incapable to protect their rights \u2013 minors , persons with unknown domicile , mentally incapables ) , protection of assets and interests of ORG , protection of public interest ( or of public order ) , harmonisation of jurisdiction of courts ( special remedies against final court decisions in the best interest of law , action as parties in such proceedings of the highest court levels ) ...","... [ T]he ORG is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the ORG or by certain ORG or criticised by other bodies of ORG . The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions ; intervention in court proceedings without reasonable interest ( of ORG , of public interest or based on protection of rights ) violating the principle of equality of arms ; quashing of final judgment of courts violating the principle of legal certainty ( res judicata ) ; participation of prosecutors in panels of supreme courts confusing the decision - making role of judges with prosecutors tasks ; unlimited right to start litigation .","The contribution of prosecutors to the consolidation of the case - law of the courts is a fact in many member GPE . The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision - taking process by judges . \u201d","The Opinion referred to the following principles applicable in the relevant field :","\u201c a. the principle of separation of powers should be respected in connection with the prosecutors ' tasks and activities outside the criminal law field and the role of courts to protect human rights ;","b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well ;","c. these functions are carried out \u201c on behalf of society and in the public interest \u201d , to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law , as well as the LAW and the case - law of the ORG ;","d. such competencies of prosecutors should be regulated by law as precisely as possible ;","e. there should be no undue intervention in the activities of prosecution services ;","PERSON when acting outside the criminal law field , prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings ( equality of arms ) ;","g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions ( res judicata ) with some exceptions established in accordance with international obligations including the case - law of the ORG ;","h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law ;","i. the right of persons or institutions , involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured ;","PERSON the developments in the case - law of the ORG concerning prosecution services ' activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75247","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2006,"docname":"CASE OF GRUSOVNIK v. SLOVENIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"David Th\u00f3r Bj\u00f6rgvinsson;John Hedigan","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant was injured in an accident at work . The applicant \u2019s employer had taken out insurance with the insurance company ZT .","On DATE the applicant instituted civil proceedings against ZT in ORG ( Okro\u017eno sodi\u0161\u010de v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .","DATE and DATE the applicant lodged CARDINAL preliminary written submissions and\/or adduced evidence .","DATE and DATE she made CARDINAL requests that a date be set for a hearing .","On DATE the judge presiding the case was appointed to ORG ( PERSON v PERSON ) and the case was assigned to a new first - instance court judge .","Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .","During the proceedings the court appointed a medical expert .","At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant \u2019s claim in part , was served on the applicant on DATE .","On DATE ZT appealed to the ORG contesting the part of the judgment referring to costs and expenses of the proceedings .","On DATE the court allowed the appeal in part and remanded the case back to the first - instance court for re - examination .","The decision was served on the applicant on DATE .","DATE and DATE the applicant lodged CARDINAL rush notices with the first - instance court .","On DATE the first - instance court issued a new decision on costs and expenses . The decision was served on the applicant on DATE .","On DATE ZT appealed to ORG .","On DATE the court rejected the appeal . The decision was served on the applicant on CARDINAL DATE ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76256","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":2006,"docname":"CASE OF SALAH v. THE NETHERLANDS","importance":1,"conclusion":"Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved","judges":"","text":["The applicant was born in DATE and is currently serving a prison sentence in the GPE .","On DATE the applicant was detained on remand ( voorlopige hechtenis ) on suspicion of involvement , together with others , in the robbery of a couple in the GPE in the course of which the man had been killed in front of the woman , who had been raped several times and had eventually been killed in GPE . The criminal proceedings brought against the applicant , in which he stood accused of offences including rape , deprivation of liberty , murder , theft and robbery , came to an end on DATE when ORG ( PERSON ) confirmed the judgment of the ' s - ORG ( gerechtshof ) dated DATE in which the applicant had been sentenced to DATE imprisonment . In the meantime , requests for his extradition from the authorities of both GPE and GPE , where the applicant was wanted on suspicion of various serious offences , had been declared permissible on DATE and DATE respectively .","The applicant was initially detained in an ordinary remand centre ( huis van bewaring ) . On DATE , on the basis of information that the applicant appeared to be playing a key role in the preparation of an escape plan involving the taking of hostages , he was transferred to ORG ) in a GPE detention facility . On DATE he returned to an ordinary remand centre , but on CARDINAL DATE following a report that the applicant and another detainee were involved in smuggling a telephone and weapons into the remand centre \u2013 he was transferred back to ORG .","On DATE , on the advice of the special selection board of the ORG , the Minister of ORG decided to place the applicant in the pre - trial detention unit of the ORG , which is part of the PERSON Penitentiary Complex in FAC . His detention in the pre - trial unit of the ORG was reviewed and extended by the Minister DATE . On DATE , on the advice of the ORG special selection board , the applicant 's stay in the ORG was extended once again by the Minister . As the applicant 's conviction had become final in the meantime , he was transferred to the ORG prison unit . His detention in the ORG prison was reviewed and extended by the Minister DATE . The applicant unsuccessfully challenged each extension decision before ORG ( beroepscommissie ) of ORG ( Centrale PERSON ) . On DATE ORG was replaced by ORG ( PERSON GPE ) .","In DATE , after a fight between the applicant and a co - detainee , the applicant was placed under a so - called individual regime , as it was held that his security could not be guaranteed by the institution if he were to come into contact with other detainees . This measure , which resulted in the applicant 's being excluded from communal activities and being allowed to participate in activities on an individual basis only , was reviewed and extended DATE . The applicant unsuccessfully challenged each decision to extend the measure . The measure was lifted on an unspecified date in DATE .","According to a report dated DATE further to an examination of the his psychological condition by ORG ) , the applicant left a strong impression of a very angry , impulsive and combative man . He displayed no clear symptoms of depression and his references to suicide appeared to arise from feelings of anger at having been unjustly convicted and placed in the ORG and to be aimed at \u201c punishing \u201d those around him for what they had done to him . He gave the impression of suffering from a serious personality disorder with mainly narcissistic and anti - social features . After a difficult period , the situation around him had now stabilised to a reasonable degree and his dealings with the ORG staff had become easier .","In a letter of DATE the applicant was informed that the Minister of ORG had decided to extend his detention in the ORG once again . That letter , in its relevant part , read as follows :","\u201c From the information held about you , it appears \u2013 quite apart from your membership of a criminal organisation DATE that you must be regarded as likely to try to escape ( vluchtgevaarlijk ) . In this respect , I would inform you as follows .","You are currently detained in connection with the commission , together with others , of very serious crimes which provoked a public outcry and undermined law and order to a serious degree . In addition you are suspected of having committed very serious crimes in other NORP countries , resulting in extradition requests by GPE and GPE which have been accepted as permissible by ORG ( arrondissementsrechtbank ) . You will be extradited to GPE . On DATE you were questioned by the NORP police and on DATE by the NORP authorities . The expectation is that you will face ( a ) lengthy prison DATE ) in those countries . On DATE there were indications concerning you \u2013 in [ the ordinary ] ORG [ remand centre ] DATE from which it appeared that you ( and others ) intended to escape . It further appeared that there were plans to take staff members hostage . You were to play a key role in the planned escape attempt . At an earlier stage of your detention \u2013 also in GPE [ remand centre ] \u2013 ( official ) reports had been received indicating that you had the intention of escaping using a visitor 's pass . This resulted in your placement \u2013 on DATE in the [ GPE ] ORG .","On DATE you were placed in [ the ordinary ] PERSON [ remand centre ] . On DATE you reported that you had received clothes and shoes not belonging to you . A clasp knife measuring QUANTITY was found in the shoes , which you surrendered to a staff member . On DATE you smashed in the window of your cell .","On DATE reports concerning you were received , according to which you were intending to smuggle a telephone and\/or weapons into the detention centre inside audio equipment .","On DATE you were again placed in ORG , pending a decision on a proposal to place you in the ORG .","After you had been placed in the ORG on DATE you displayed a particular interest in the security of the establishment . When other detainees were being moved , you observed the course of events closely , noting which doors opened and which remained closed . You also enquired of staff how well the building was secured , whether conversations were monitored and how many detainees the building could accommodate .","DATE you twice tried to circumvent the ORG security measures , resulting in a warning being issued to you . In the period DATE and DATE you displayed recalcitrant behaviour and a desire to push back boundaries , in particular with regard to the rules governing the prison regime .","DATE and DATE you issued threats against various persons , including a judge . You declared in that connection ' that you still knew people outside who would take care of this for you ' .","Also in the period DATE and DATE , you issued threats against ORG staff . You argued that the prison authorities and prison doctor were to blame for the situation in which you found yourself . In that connection you ( further ) indicated that those persons would pay for the things that they , in your opinion , had done to you .","From the above , the assumption appears justified that ( you realise that ) you have nothing more to lose and , in consequence , will seize every opportunity to escape .","After you had been sentenced to life imprisonment in first - instance proceedings , you were sentenced by an irrevocable judgment to DATE imprisonment for serious crimes . In addition , you are suspected of having committed very serious crimes in various other NORP countries , resulting in extradition requests by GPE and GPE which have been accepted as permissible by ORG . You will be extradited to GPE . The expectation is that you will face ( a ) lengthy prison sentence(s ) in those countries .","An escape on your part would be unacceptable to society . Noting the above , and also the grave concern expressed by society and public opinion at the very serious crimes which you have committed , as a result of which law and order was undermined to a serious degree , the [ ORG ] selection board , having heard evidence from the selection officer who has spoken with you , has advised me to continue your detention in the ORG . I have taken a decision to that effect . \u201d","As he had done in respect of the previous such decisions , the applicant again challenged the decision to extend his stay in the ORG , by lodging an appeal with ORG , arguing that his ( continued ) detention in the ORG was , inter alia , in breach of his rights under LAW and CARDINAL of the Convention .","NORP On DATE ORG dismissed the appeal . It noted that the applicant had been sentenced to DATE imprisonment for very serious crimes giving rise to grave concern in society and public opinion . In addition , he was suspected of having committed serious offences in other NORP countries , in connection with which GPE and GPE had sought his extradition . The expectation was that he would face lengthy prison sentences in both countries . It therefore considered that the applicant , in the event of an escape , would pose an unacceptable risk to society , in terms of severe disturbance of public order . Of lesser importance was the risk of escape in itself , that is , the situation provided for in LAW ( b ) of the Regulation of DATE on the selection , placement and transfer of detainees ( PERSON selectie , plaatsing en overplaatsing van gedetineerden ) . ORG further concluded that , having found no facts or circumstances militating against the continuation of the applicant 's stay in the ORG , the decision to extend his detention there was lawful and that , weighing up all the interests involved , it could not be considered as unreasonable or unjust . ORG did not deal with the applicant 's arguments under LAW and CARDINAL of the Convention .","By a decision of DATE the applicant 's detention in the ORG was again extended . His appeal to ORG , in which he again relied on , inter alia , Articles CARDINAL and CARDINAL of the LAW , was dismissed on DATE .","ORG reaffirmed its opinion that the applicant , in the event of an escape , would pose an unacceptable risk to society in terms of severe disturbance of public order , and that the risk of escape was , in itself , of lesser importance . In the absence of any facts or circumstances militating against a continuation of the applicant 's stay in the ORG , it also found that the decision to extend his detention there was lawful and that , weighing up all the interests involved , it could not be considered as unreasonable or unjust . It did , however , add DATE before a decision was taken on whether to extend further the applicant 's detention in the ORG \u2013 the applicant should speak with a psychologist from ORG , and that the report to be drawn up following that conversation was to be taken into account in the decisionmaking process .","On DATE the applicant was transferred to an ordinary prison in GPE .","On DATE another individual \u2013 who had been detained in the ORG DATE and DATE brought a civil action in tort ( onrechtmatige daad ) against GPE before ORG of GPE . CARDINAL of the grounds on which he claimed payment of compensation in respect of non - pecuniary damage for unlawful acts for which he considered GPE to be liable was that , from his arrest in DATE until DATE , he had been subjected to inhuman and degrading treatment on account of the conditions of his detention , including having had to undergo humiliating and unnecessary strip - searches . He based this part of his claim on , inter alia , the ORG 's findings in its judgments of CARDINAL DATE in the cases of PERSON the GPE ( no . CARDINAL\/CARDINAL , ORG CARDINAL ) and PERSON and Others v. the GPE ( no . CARDINAL ) , the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as set out in CARDINAL reports ( see paragraphs CARDINAL - CARDINAL below ) , and a report drawn up on DATE by academic researchers on the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraph CARDINAL below ) .","On DATE the applicant and CARDINAL other ( former ) EBI detainees applied to ORG for leave to join the civil action against ORG . Their application related to the part of the claim concerning compensation for non - pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the ORG , including having had to undergo humiliating and unnecessary strip - searches . Those civil proceedings are still pending and , to date , no decision has been taken on the applicant 's request to join them .","An overview of the relevant domestic law and practice is given in the ORG 's judgment of CARDINAL DATE in the case of PERSON the GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-II , and in GPE v. the GPE ( dec . ) , no . CARDINAL\/CARDINAL , DATE .","On DATE , in the light of the ORG 's findings in its judgments of CARDINAL DATE in the cases of PERSON , cited above , and PERSON and Others , cited above , the ORG house rules ( huisregels ) were amended with the result that the practice of DATE routine strip - searches accompanying the DATE cell inspections was abandoned . Under the amended Article CARDINAL ) of the ORG house rules , strip - searches could be carried out at random during or directly after a DATE cell inspection .","From DATE , pursuant to a ruling given on DATE by the judge responsible for provisional measures ( voorzieningenrechter ) at ORG of The Hague in summary injunction proceedings brought against ORG by CARDINAL ORG detainees in DATE , the random strip - searches were no longer linked to cell inspections and the ORG authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for . The situation of each individual detainee is now discussed at the DATE ORG staff meeting on detainees .","On DATE researchers from ORG presented a report on a study , commissioned in DATE by the Minister of ORG , about the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraphs CARDINAL - CARDINAL below ) . It concluded that the ORG regime affected the cognitive functioning of detainees in a negative manner , with particular reference to the speed of processing information and response inhibition . This was probably a result of the lack of stimuli in the detention situation . The report further concluded that the ORG regime caused more depression than a restricted community regime and that strip - searches were perceived as humiliating , constituting an extra burden for persons detained in the ORG . On the other hand , the ORG regime provided a better balance between rest and activity than a restricted community regime , as a result of which ORG detainees maintained a healthier rhythm of everyday life . In addition it had not been demonstrated that ORG detainees displayed more physical symptoms of persistent mental stress .","Under GPE law the civil courts have traditionally had jurisdiction to grant relief against the authorities , if and in so far as no other relief is available . Where a person bases a claim against the authorities on an allegation that they have committed a tort within the meaning of Article CARDINAL of the Dutch Civil Code ( Burgerlijk Wetboek ) against him or her , the civil courts have jurisdiction in principle . Where the civil courts have jurisdiction , they can also act in summary injunction proceedings ( kort geding ) in which a claimant can , inter alia , request the civil court to issue an order against the authorities . An act by the authorities is unlawful and constitutes a tort when it violates a right of the claimant or is contrary to a rule of international or domestic law which seeks to protect the claimant 's interests , or to general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) . An action in tort is subject to a DATE limitation period under LAW .","NORP However , as to the jurisdiction of the civil courts in cases where an administrative appeal lies , it is an established principle under GPE law that DATE given the closed system of legal remedies ( gesloten system van rechtsmiddelen ) in the GPE legal system \u2013 the civil court should refrain from examining the lawfulness of an administrative decision , provided that the administrative appeal offers sufficient guarantees as to a fair procedure . On this topic , extensive case - law has been developed by ORG ( PERSON ) over DATE , supported by a number of authorities , to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure , the civil courts have full jurisdiction to review the lawfulness of the administrative decision . On the other hand , a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings ( see ORG , DATE , PERSON ( GPE Law Reports \u2013 \u201c GPE \u201d ) DATE , no . CARDINAL ; see also NORP v. the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , \u00a7 \u00a7 CARDINAL and \u00a7 \u00a7 DATE ) .","NORP In a case in which it gave judgment on DATE , ORG examined the question whether a party which considered that it had been injured by a judicial ruling against it could bring a subsequent civil action in tort against the ORG , arguing that the judge had failed to act with due care in giving that ruling . ORG found that this was not possible , holding that it was solely for the legislature to decide in what cases a remedy was to be provided . It would be incompatible with this principle if an unsuccessful party were to have the possibility , through a civil action , of making the correctness of a [ final ] judicial ruling the subject matter of new proceedings , thus obtaining a fresh examination in a manner other than that provided for by statute . It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles ( fundamentele rechtsbeginselen ) that the case could no longer be said to have been determined in a fair and impartial manner , and if there was no possibility of appeal nor had there ever been such a possibility , could the ORG be held liable for the effects of such a ruling through a civil action in tort ( GPE DATE , no . CARDINAL ; see also ORG , DATE , GPE DATE , no . CARDINAL ; ORG of The Hague , DATE and CARDINAL DATE , GPE DATE , ORG . CARDINAL and CARDINAL ; and ORG of The Hague , DATE and CARDINAL DATE , ORG ( ORG ) DATE , nos . CARDINAL and CARDINAL ) .","In a judgment given on DATE concerning civil proceedings taken against ORG by an association of detainees who wished to challenge a special restricteddetention regime in a specific wing of the prison in GPE , ORG held that , as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned ( that is to say , the individual complaint procedure provided for in Article CARDINAL et seq . of LAW ( ORG ) as in force at that time ) and it was not in dispute that that remedy offered sufficient procedural safeguards , the claimant 's case had been correctly declared inadmissible , as the association had acted solely \u201c in the context of promoting the interests of its members \u201d , which were already safeguarded by the individual complaint procedure under LAW seq . of LAW ( GPE DATE , no . CARDINAL ) .","In a judgment given on DATE ( GPE DATE , no . CARDINAL ) in a civil action against GPE brought by a coaccused of a successful applicant to GPE ( PERSON v. the GPE , judgment of DATE , Series A no . CARDINAL ) , ORG held as follows :","\u201c It is embedded in the [ GPE ] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should , but must , be executed . It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity , through a claim [ for tortious damage ] against the ORG , to bring a fresh set of legal proceedings challenging the decision of the criminal court or the acceptability of the [ criminal ] proceedings leading to the decision and to have [ the subject matter of those proceedings ] reviewed by the civil courts .","Considering the obligations flowing from ORG , CARDINAL and CARDINAL [ of the Convention ] to secure the rights set out in LAW ] and to provide an effective remedy in the event of a violation of those rights , an exception must be made to the above - mentioned rules should a ruling of ORG [ of Human Rights ] , which the criminal court judge could not take into account in his decision , prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article CARDINAL \u00a7 CARDINAL [ of the Convention ] .","When such an exceptional case arises , immediate execution of the decision can no longer be regarded as permitted under the legal system , and the person convicted can institute interim injunction proceedings [ before the civil court ] seeking DATE depending on the circumstances DATE to have execution prohibited , stayed or limited . Having regard to the nature of interim injunction proceedings and the reticence to be observed by the judge in such proceedings when examining the manner in which an irrevocable decision of the criminal court has come about , there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of ORG [ of Human Rights ] indeed requires that the above - mentioned conclusion be reached . \u201d","In that case , ORG accepted ORG finding against the claimant in view of the fact that , when the impugned ruling was given on DATE , the ORG had not yet delivered its judgment in the PERSON case .","A number of persons detained in the ORG have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime , or certain aspects of it , relaxed ( for further details , see PERSON and Others , cited above , \u00a7 \u00a7 DATE ) .","On DATE an amendment to LAW \u201c the ORG \u201d ) entered into force , governing possible means of obtaining revision ( herziening ) of final judgments . The amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by ORG that the criminal proceedings leading to that conviction had been in violation of the LAW . The relevant part of the amended text of LAW ORG reads :","\u201c CARDINAL . An application for revision of a final ruling ( eindbeslissing ) entailing a conviction which has obtained the force of res judicata can be lodged :","...","on the ground of a ruling of ORG in which it has been established that there was a violation of [ the ORG or one of its Protocols ] in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of LAW of [ the LAW ] . \u201d","A request for revision can be lodged with ORG by the Procurator General , the convicted person or the latter 's lawyer within DATE after the convicted person has become aware of the ORG 's ruling referred to in LAW ( CARDINAL ) , subparagraph CARDINAL ( LAW .","If ORG accepts a request for revision based on LAW , subparagraph CARDINAL , it may either itself determine the criminal charges after reopening the criminal proceedings , or order the suspension of execution of the original judgment and remit the case for a fresh determination to a ORG different from the one that gave the original judgment ( LAW .","In its judgment of DATE in the case of PERSON and Others v. the GPE ( Reports of Judgments and Decisions CARDINAL ) , the ORG found a violation of the LAW in that the criminal proceedings against the CARDINAL applicants had not been conducted in compliance with the requirements of LAW and CARDINAL ( d ) of the LAW . In its judgment it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the applicants ' claim for non - pecuniary damage , considering that that part of the applicants ' claim for just satisfaction was not ready for decision .","On DATE the applicants in that case lodged a request for their immediate release from detention , failing which they would bring summary injunction proceedings against the ORG . On DATE the Minister of ORG decided to grant them temporary release ( strafonderbreking ) and they were released from prison on DATE .","The ORG determined the applicants ' claims for non - pecuniary damage in its judgment of DATE ( PERSON and Others v. GPE ( LAW ) , Reports CARDINALVII ) , in which it noted that under domestic law it was not possible for the applicants to obtain a retrialCARDINAL . The applicants had claimed MONEY ( NLG ) for DATE spent in detention , resulting in total claims of MONEY and NLG CARDINAL,CARDINAL . After having examined the respondent Government 's comments on those claims , the ORG awarded CARDINAL applicant NLG CARDINAL ( MONEY ( ORG ) ) and each of the CARDINAL other applicants NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) for non - pecuniary damage , and rejected the remainder of the applicants ' claims for non - pecuniary damage .","On DATE ORG , exercising its supervisory powers under the Convention as regards the execution of the ORG 's judgments of DATE and DATE , adopted a final resolution ( Res DH(CARDINAL)CARDINAL ) in the case . Having noted the measures taken by the GPE on the basis of the ORG 's judgments , ORG concluded that the manner in which the GPE had executed both judgments was in compliance with their obligations under LAW .","On DATE CARDINAL of the CARDINAL applicants brought a civil action in tort against GPE before ORG of GPE . They sought a declaratory ruling that GPE was liable for pecuniary and non - pecuniary damage arising out of unlawful administration of justice in violation of their rights under LAW and CARDINAL ( d ) . They sought payment of compensation corresponding to LAW for DATE spent in detention , less the compensation awarded by the ORG . They based their claims on the argument that , given the ORG 's findings in its judgment of DATE , it had been established that in the domestic criminal proceedings against them the NORP court had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful .","In its judgment of DATE , following appeal proceedings taken by GPE , ORG of The GPE quashed the impugned judgment given on DATE by ORG , and for the time spent in detention ( pre - trial and following conviction ) awarded compensation for non - pecuniary damage to the first claimant in the amount of ORG , less ORG CARDINAL,CARDINAL.CARDINAL already awarded by ORG . It awarded the second claimant ORG CARDINAL,CARDINAL , less ORG CARDINAL,CARDINAL.CARDINAL awarded by ORG , and the third claimant ORG CARDINAL , less EUR CARDINAL,CARDINAL.CARDINAL awarded by the ORG . ORG held , inter alia , as follows :","\u201c The finding of ORG [ of Human Rights ] that full redress ( volledige genoegdoening ) by means of a ' retrial ' in the GPE is not possible , means that ORG may award compensation on grounds of equity ( vergoeding naar billijkheid ) , but not that in subsequent civil proceedings the domestic court can no longer award full compensation for damage ( volledige schadevergoeding ) . The ORG 's argument , that [ the CARDINAL claimants ] requested compensation for damage for the first time before ORG and not previously before the domestic court , and that ORG would have taken into account in its judgment the same claims for damages ( schadeposten ) as those now in issue in the present proceedings , fails because no rule exists prohibiting the bringing of a claim before the NORP court seeking compensation for damage , a part of which DATE namely an award in equity \u2013 has already been awarded in separate proceedings before ORG . \u201d","In its judgment of DATE on the appeal on points of law brought by ORG against the ruling of DATE , ORG held that the ORG had been correct in not challenging this part of the reasoning in the impugned judgment .","On DATE the ORG delivered its judgment in the case of PERSON and Others ( cited above ) , finding a violation of LAW in respect of the applicant PERSON in that , during his stay in the ORG for DATE , the applicant \u2013 who was already subjected to a great number of control measures \u2013 had been subjected to DATE routine strip - searches without convincing security reasons . It found no violation in respect of the other grievances raised by PERSON and the other applicants ( his spouse and children ) under LAW , DATE and CARDINAL of the Convention . As regards damages , the applicants requested the ORG to award them a symbolic amount of NLG CARDINAL,CARDINAL ( ORG CARDINAL.CARDINAL ) , stating that no amount of money would be capable of compensating for the harm suffered by them . Taking the view that PERSON had sustained some psychological damage on account of the treatment which had been found contrary to LAW , the ORG awarded him , in respect of such damage , ORG MONEY , that is to say , the full amount claimed under that head .","On DATE PERSON brought summary injunction proceedings against ORG before the judge responsible for provisional measures in ORG of ORG of GPE , seeking an order against the ORG to discontinue , with immediate effect , the execution of the DATE prison sentence that had been imposed on him , to release him immediately from prison and not to seek payment of the fine of NLG MONEY ( ORG CARDINAL,CARDINAL.CARDINAL ) that had also been imposed .","On DATE the judge responsible for provisional measures ruled on the applicant 's request . The decision , in its relevant part , reads :","\u201c CARDINAL . The claimant has an urgent interest in his claim . The civil court judge DATE in this case the judge responsible for provisional measures in summary injunction proceedings \u2013 is empowered to take cognisance [ of the case ] , as the claimant claims that the ORG has acted unlawfully toward him , inter alia by continuing his detention .","For the determination of the claim , it is a fact that the ORG has violated the applicant 's rights under LAW ...","Under LAW of [ the LAW ] the applicant is entitled to reparation ( rechtsherstel ) in respect of this irreparable violation of the LAW . If need be , he can assert that right before the courts . The ORG is deemed to be acting unlawfully towards him if no suitable form of redress is provided .","The parties have provided different answers to the question whether the measures requested by the claimant ... constitute a form of redress compatible with our legal system and , if so , whether those measures are suitable and appropriate in this case .","[ The judge responsible for provisional measures rejects ] the argument of the ORG that the closed system of legal remedies in criminal proceedings , and the corresponding obligation of the ORG to execute rulings of the criminal courts , militate against this form of redress . In this system , no provision has been made to date for ( a suitable response to ) a violation of the kind at issue in the instant case . There have been no prior similar cases , and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in case - law . In principle , early release or non - execution of a fine imposed may constitute a suitable form of redress for a violation of LAW kind in issue . This exception to the closed system of legal remedies in criminal cases is , to that extent , consistent with ORG approach in its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) .","The ORG has referred to the financial compensation awarded by the [ ORG ] and to the just satisfaction which , in the case of the applicant , lies in the fact that his complaint was declared well - founded [ by ORG ] . However , these CARDINAL elements do not form a suitable , and certainly not a sufficient , form of redress for the claimant . Consequently , they do not stand in the way of the claims being allowed . The claimant can request the domestic court to order that additional measures be taken .","In reply to a question , the ORG stated that it was possible , in this connection , to consider measures such as the claimant 's serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure . ... Again , these options do not form an obstacle to allowing the claims . The first option does not constitute sufficient redress in this case , while the option of a pardon corresponds to ( a request for ) a concession rather than the granting of a right , which is what is at issue here .","In these circumstances , the ORG should release the claimant earlier than June CARDINAL [ when he becomes eligible for early release ] and waive the execution of the sentence in its entirety . Having regard to the nature of the violation of the ORG which is an established fact , a form of redress ( genoegdoening ) which relates to the claimant 's liberty is more suitable , and in any event warrants greater priority than waiving payment of the part of the fine still outstanding .","No fixed standard exists for ' offsetting ' the remaining part of the claimant 's prison sentence . There are no pertinent reference points on the subject in existing legislation . This means that the amount of the compensation must be determined on an equitable basis ( naar billijkheid ) . The seriousness of the violation [ of the ORG ] justifies reduction of the sentence by a period equal to PERCENT of DATE for which the applicant was subjected to the regime in the ORG ... This amounts to a reduction of DATE ( round figure ) ...","On the basis of this solution , the claimant 's claim should be rejected . Indeed , the claimant has no urgent interest in a provisional measure which will only take effect after DATE [ when the applicant has served his mitigated sentence ] ... It is assumed that the ORG ( the Minister of ORG ) will execute this ruling and release the claimant at a time that can be determined precisely on the basis of the standard set out here . If need be , the claimant may apply again in due course to the judge responsible for provisional measures .","Each of the parties can , in fact , be deemed to have been ruled against . \u201d","Both parties agreed to lodge a direct \u201c leapfrog \u201d appeal on points of law ( sprongcassatie ) with ORG , which dismissed both appeals on DATE . Although it agreed with ORG that the judge responsible for provisional measures had incorrectly assumed that LAW gave Mr Lors\u00e9 an ( independent ) right to redress which , if need be , could be asserted before the domestic court , it held that this could not lead to the setting - aside of the judgment as , pursuant to the LAW , the ORG was obliged to provide redress . However , relying on the ORG 's reasoning in the cases of PERSON and Others v. GPE ( ( LAW ) , judgment of DATE , Series A no . CARDINAL ) and PERSON and ORG v. GPE ( [ ORG ] , ORG . ORG and CARDINAL , ORG CARDINALVIII ) , ORG considered that , although the ORG was in principle free to determine the manner in which redress was to be provided , that freedom did not mean that the domestic court was unable to take a decision on that point , but simply that a suitable form of redress was to be sought within the domestic legal order . As ORG had acted unlawfully towards PERSON in so far as his rights under LAW had been violated , as found by the ORG , PERSON was entitled to claim compensation from the ORG , which would be acting unlawfully if it failed to provide a suitable form of redress . ORG accepted that such compensation could be granted in a manner other than by paying a sum of money . In cases such as the present , where the violation found concerned the manner of execution of a custodial sentence , it could take the form of discontinuing the execution of the sentence . ORG found that the order of the judge responsible for provisional measures to discontinue execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of PERSON . As regards the argument raised by the ORG that the closed system of legal remedies and the corresponding obligation for the ORG to execute rulings of the criminal courts precluded the form of redress claimed by PERSON , ORG \u2013 while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [ as in the case of PERSON and Others ] and a situation in which the violation found was unrelated to such a conviction or proceedings [ as in the case of Mr Lors\u00e9 ] DATE held that this difference did not mean that the judge responsible for provisional measures had based point CARDINAL of the impugned ruling on an incorrect interpretation of the law . Given the particular violation of Article CARDINAL found by the ORG and the fact that there was no specific statutory remedy for determining redress for such a violation , ORG concluded that in that case an exception to the closed system of legal remedies could be accepted . It further found that the judge responsible for provisional measures had given sufficient reasons as to the determination of the compensation awarded to PERSON .","In its judgment of DATE in the case of PERSON the GPE ( no . CARDINAL\/CARDINAL ) , in which the applicant complained that his telephone conversations with PERSON had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him , the ORG found a violation of LAW on the ground that the conversations in question had not been recorded \u201c in accordance with the law \u201d . As the applicant had declined to submit any claims for compensation in respect of pecuniary or nonpecuniary damage , stating that he intended instead to pursue such claims before the domestic courts , the ORG made no award for just satisfaction under those heads . In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings , the ORG rejected the applicant 's argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case , taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant 's part , and recalling that it had already , at the admissibility stage , rejected the applicant 's complaints touching on the use made of the evidence obtained as a result of the violation found .","On an unspecified date and on the basis of the ORG 's findings in its judgment of DATE , the applicant PERSON filed a request with ORG for revision of the final domestic judgment of DATE , in which ORG \u2013 without the recorded telephone conversations having been relied on in evidence \u2013 had convicted him of having sexually assaulted PERSON and another woman and had sentenced him to a suspended term of DATE imprisonment , together with a fine of NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) , to be replaced by DATE detention for default of payment .","On DATE ORG accepted the request for revision and , in accordance with LAW ORG , determined the matter itself . It held as follows :","\u201c CARDINAL . ... the ORG has the obligation to provide redress if ORG has found a violation of a LAW provision . Such redress can be provided in whole or in part within the framework of the revision procedure , amended for this purpose .","Having regard to the violation of LAW found by ORG , ORG is of the opinion that revision is necessary for the purposes of redress . To that extent , the request is well - founded . ... The request is aimed primarily at having ORG declare the prosecution inadmissible , while quashing the judgment in respect of which revision is sought .","ORG can not accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible , and the instant case can not be regarded as such . In this connection the petitioner relies mistakenly on [ ORG judgment of DATE ; NL DATE , no . CARDINAL ] . In that case ORG held that , in certain circumstances , a serious breach of the principles of due process may lead to the prosecution being declared inadmissible if , as a result of that breach , deliberately or owing to gross disregard of the defendant 's interests , the defendant 's right to a fair hearing has been infringed . As ORG , in its decision on admissibility [ M.M .. v. the GPE ( dec . ) , no . MONEY ] of DATE , preceding its judgment of DATE , declared inadmissible the [ applicant 's ] complaint under LAW as being manifestly ill - founded , it can not be said that there has been a serious breach of the principles of due process as a result of which , deliberately or owing to gross disregard of the [ applicant 's ] interests , his right to a fair hearing has been infringed .","Taking into account that , in the proceedings leading to the judgment of which revision is sought , there was no breach of LAW and that the content of the recorded telephone conversations was not used in evidence , there is no ground for referring the case to ORG under LAW , as requested by the petitioner in the alternative .","In the light of the significance of the violation [ of the Convention ] and the nature and seriousness of the irreparable defects in the preliminary criminal investigation , as found by ORG , ORG will , after accepting the [ revision ] request , determine the matter itself , in accordance with LAW ORG , and reduce the fine imposed by ORG in the following manner .","... \u201d","ORG quashed the original judgment of ORG in part , that is , in respect only of the amount of the fine imposed and the duration of the detention for default , reducing the fine by PERCENT to ORG CARDINAL and the detention for default to DATE .","The findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) with regard to the ORG , as set out in its ORG on a visit to the GPE from DATE , together with ORG response to those findings , are set out in the ORG 's judgment of CARDINAL DATE in the case of PERSON ( cited above , \u00a7 \u00a7 DATE ) .","The ORG visited the GPE again from CARDINAL to DATE and , in the course of that visit , carried out a follow - up visit to the ORG . Its findings were the following ( ORG to ORG on the visits carried out to GPE and to GPE by ORG for ORG Treatment or Punishment ( ORG ) in DATE , ORG ( DATE ) CARDINAL , excerpts ) :","\u201c CARDINAL . At the time of the DATE visit , ORG ( ORG ) at the FAC was being renovated , and the inmates allocated to it were being held in FAC ( ( GPE ) building nearby ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) .","In addition to paying a brief visit to the facilities undergoing renovation , the ORG 's delegation examined the regime currently being applied , and devoted attention to the procedures governing placement and extension of placement in ORG . In the course of the visit , interviews were held with all CARDINAL inmates , the establishment 's management and staff , as well as representatives of ORG .","...","c. regime","Following its first visit to the ORG , the ORG expressed considerable concern about the regime applied within the institution . It recommended that the regime be revised , in particular as regards certain of its features : the group system ( if not discarded , to at least be relaxed and inmates to be allowed more out - of - cell time and a broader range of activities ) ; searching policies ( to be reviewed in order to ensure that they are strictly necessary from a security standpoint ) ; and visiting arrangements ( to be reviewed , the objective being to have visits take place under more open conditions ) ( cf . paragraphs CARDINAL to CARDINAL of ORG ( CARDINAL ) CARDINAL ) .","However , in their response ( dated DATE ) to the ORG 's visit report , the NORP authorities defended point by point the different aspects of the regime being applied in the ORG ( cf . paragraph CARDINAL of ORG ( CARDINAL ) CARDINAL ) .","In the course of the DATE visit , the Director of the FAC and the Acting Director of the ORG informed the ORG 's delegation that a limited number of modifications to the regime and its implementation had taken place . For instance , steps were being taken to increase staff \/ inmate communication through a training programme known as \u201c Safety at the door \u201d , as well as by the previously - mentioned adaptations of the exercise yards . Further , a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells . Another positive development was that the special \u201c handcuffs regime \u201d ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) had not been applied in respect of any inmate since DATE .","However , despite these welcome developments , the regime in the unit was essentially the same as in DATE , and the prison 's management acknowledged that there had been \u201c no change in most of the rules \u201d . Although the official allowance for activities was generous ( TIME ) , in practice , most inmates ' out - of - cell time did not appear to have increased ( averaging TIME per day ) . The stringing of plastic curtain hooks on short rods , which was performed individually in the cells , continued to be the only work offered . It remained the case that body searches - including anal inspections - were performed on each prisoner at least once DATE , a process which was invariably perceived as humiliating . Conditions under which visits and sessions with non - custodial staff took place also continued to be very restrictive . Inmates ' remarks to the delegation ( e.g. \u201c losing positivity \u201d , lacking \u201c future feelings \u201d , \u201c beginning to hate people from the heart \u201d , and\/or having to cope by being \u201c mentally separate \u201d ) frequently echoed those made in DATE .","To sum up , inmates held in the ORG remained subject to a very impoverished regime .","In an environment which is potentially hazardous to the mental health of prisoners , it is of critical importance to provide a varied programme of appropriate stimulating activities ( including education , sport , work of vocational value , etc . ) . The ORG calls upon the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff .","Following a recommendation made by the ORG in its previous periodic visit report ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) , the NORP authorities commissioned ORG to carry out an independent study of the psychological state of current and former inmates of the ORG . A preliminary study completed on DATE concluded that \u201c an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible . \u201d The NORP authorities have indicated that such an empirical examination has in fact commenced and would be completed by DATE . The ORG trusts that it will receive the results of the study in due course .","CARDINAL point raised by the preliminary study may be noted , i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a \u201c contradiction in the policy \u201d of the ORG . ORG would like to receive the views of the NORP authorities on this statement .","[ footnote ] CARDINAL . Each prisoner was also subjected to such a search before and after being interviewed by members of the ORG 's delegation . \u201d","ORG responded to these findings in the following terms ( ORG ( DATE ) DATE , excerpts ) :","\u201c The \u201c Extra Security Institution \u201d at the FAC","recommendations","...","- the NORP authorities [ are called upon ] to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff ( paragraph CARDINAL )","Response : Prisoners in the ORG spend a total of TIME a week on out - of - cell activities , and these activities are no less varied than in other prisons . They include exercise , visits , sport , work , education and recreation . Not all prisoners take part in all activities . What they do depends partly on interest and ability . The work in the ORG is simple . However , it is difficult to provide work that is more varied and yet meets security requirements . In principle , work in the ORG is done jointly . The Government refutes the claim that , on average , prisoners participate in activities for no more than between TIME a day . In fact they spend an average of TIME a day in out - of - cell activities .","The Government agrees that prisoners and staff should have more contact . Fenced - off walkways for staff have now been erected in the exercise yards . They provide more opportunities for informal contact and interaction between prisoners and staff .","The number of searches has been sharply reduced since the opening of the ORG . Besides a DATE search during cell checks , searches are carried out after visits to areas containing potentially dangerous objects , such as the hairdresser 's or the doctor 's or dentist 's surgery , and after contact with the outside world , such as visits . Searches are still necessary from the point of view of security . The Government would point out that searches are also conducted in ordinary prisons .","On DATE , in CARDINAL separate cases against the GPE , ORG ruled that : \u201c the combination of routine strip - searching with the other stringent security measures in the ORG amounted to inhuman or degrading treatment in violation of LAW . There has thus been a breach of this provision . \u201d ( PERSON the GPE , ORG no . CARDINAL\/CARDINAL , DATE , \u00a7 CARDINAL ; see also PERSON the GPE , ORG no . MONEY , DATE , \u00a7 CARDINAL ) . These judgments and other considerations have prompted the Government to stop routine DATE searches in the ORG over a long period of time . The ORG 's regulations will be amended .","...","requests for information","- the results of the \u201c empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners \u201d , being conducted by ORG ( paragraph CARDINAL )","Response : The study is expected to be completed by DATE as indicated . As soon as the findings are available , the ORG will forward them to the ORG .","- the views of the NORP authorities on the statement , made in the preliminary study carried out by ORG , to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a \u201c contradiction in the policy \u201d of the ORG ( paragraph CARDINAL )","Response : The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime . However , opportunities to exercise influence are necessarily more restricted in the ORG than in other prisons because of the nature of the system . The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society . Placement in the ORG is mainly determined by considerations of safety and security . In this sense the ORG differs from other prisons . The emphasis on safety and security means that placement in the ORG does not depend on a prisoner 's behaviour but on the risk he represents . \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69910","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"WASILEWSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Brwin\u00f3w . He is represented before the ORG by PERSON PERSON , his father and legal guardian .","The respondent Government are represented by Mr PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is physically handicapped and suffers from various mental disorders which originated from prenatal damage caused by his mother 's car accident .","On DATE the applicant was arrested and charged with attempted extortion of money by threats .","On DATE ORG dismissed his appeal , finding that the arrest was justified and that his medical records did not indicate that his detention would be incompatible with his condition . On DATE ORG decided to detain the applicant on remand until DATE .","On DATE ORG instructed the administration of the detention centre to set up a medical commission to examine the applicant , to assess whether the state of his health allowed him to remain in custody .","The medical examination was eventually carried out on DATE . The commission concluded that the applicant could remain in a detention centre equipped with a psychiatric and neurological unit .","On an unspecified date after DATE the applicant was transferred to the detention centre GPE , which had a psychiatric clinic .","On an unspecified date the applicant filed an appeal against the detention order , which was dismissed on DATE by ORG . The court shared the arguments of the first instance court and found that the applicant was receiving specialist medical care .","On DATE the ORG prolonged the applicant 's detention until DATE . The applicant appealed . He also contended that , should the detention order be upheld , he should remain in a regular hospital and not in a detention centre .","On DATE ORG found that the detention was necessary as , in particular , a psychiatric report had been requested to establish whether the applicant could be held criminally responsible . It decided , however , that the extension given by ORG was excessively long and ruled that the applicant should be detained until DATE .","On DATE the prosecutor conducting the investigation decided to place the applicant under psychiatric observation . This decision was upheld by a court upon the applicant 's appeal .","On DATE ORG prolonged the applicant 's detention until DATE . The applicant appealed . ORG dismissed his appeal on DATE . On DATE , the same court examined a fresh motion by the prosecutor and again prolonged the applicant 's detention , until DATE .","The bill of indictment in the applicant 's case was lodged with ORG on DATE . The trial was set to commence on DATE .","On DATE the court decided that the applicant should be again examined by a team of CARDINAL psychiatrists who would establish his condition tempore criminis . Their report was submitted on DATE . At the next hearing held on DATE the court decided to conduct the trial ab initio , the composition of the court having changed . The court also ordered , upon the applicant 's request , a new medical opinion as to whether his condition prevented him from participating in the proceedings . This opinion was submitted to the court on DATE . Apparently , no further hearings were held in DATE . On DATE the court decided that it lacked jurisdiction to deal with the applicant 's case . This decision was quashed , following the applicant 's appeal , on DATE .","The next hearings were held on DATE , DATE , DATE and DATE . On DATE ORG refused to transmit the case back to the prosecuting authorities for the investigations to be completed . The applicant appealed . On DATE ORG quashed the decision of DATE and ordered that the request to transmit the case for further investigations be re - examined . On DATE ORG again turned this request down .","By a judgment of DATE ORG found the applicant guilty of an attempt to extort money by threats in collusion with other persons whose identity had not been established . The court sentenced the applicant to DATE imprisonment and stayed the execution of the sentence . The applicant appealed . On DATE ORG quashed the first - instance judgment and ordered that the case be reconsidered . The case is currently pending .","On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","Section CARDINAL of the CARDINAL Act reads , in so far as relevant :","\u201c CARDINAL . NORP Parties","Section CARDINAL reads , in so far as relevant :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","... \u201d","On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-126914","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2013,"docname":"CASE OF POZHYVOTKO v. UKRAINE","importance":4,"conclusion":"Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)","judges":"Ale\u0161 Pejchal;Angelika Nu\u00dfberger;Ann Power-Forde;Ganna Yudkivska;Helena J\u00e4derblom;Mark Villiger","text":["The applicants live in GPE , ORG . The first applicant is Mr GPE Pozhyvotko \u2019s widow and the second applicant is his mother .","In TIME of CARDINAL October CARDINAL Mr PERSON was shot dead in a local bar .","On DATE ORG opened an investigation in connection with the death .","During TIME CARDINAL DATE an investigator from the prosecutor \u2019s office , together with other law - enforcement officers , experts and witnesses , carried out an on - site examination , including photographing and videotaping of the crime scene . Certain material evidence was seized , including CARDINAL pistols , cartridges , bullets and other items . The victim \u2019s body was sent for a forensic medical examination .","In the subsequent period the investigative authorities ordered forensic examinations of the seized evidence , questioned a number of witnesses and conducted searches in order to find additional evidence .","On DATE the first applicant was admitted to the proceedings as an aggrieved party .","On DATE the investigator charged T. with murder and put him on the list of wanted persons .","On DATE PERSON voluntarily confessed to shooting the victim dead . On DATE PERSON was arrested . The decisions concerning T. were revoked .","On DATE L. was released on the grounds that there was insufficient evidence to charge him with the crime .","On DATE the second applicant was granted the status of aggrieved party in the criminal proceedings .","NORP By letter of CARDINAL DATE the second applicant was informed that the case had been referred to ORG for \u201c a more qualified investigation \u201d .","In its letter of DATE ORG informed the second applicant that the investigation had been delayed . They further noted that ORG had been instructed to take comprehensive measures in the case . As regards her request for referral of the case to a different prosecutor \u2019s office , she was informed that it would not be appropriate to do so .","On DATE the investigator in charge of the case stated in writing that the video recording and photographs of the crime scene made on DATE could not be found .","On DATE the investigation was closed on the grounds that L. had acted in the state of necessary defence and the involvement of other individuals in the crime could not be established .","On DATE the deputy prosecutor of the ORG quashed that decision , noting that the dactylographic examination had not been completed and a number of witnesses had not been questioned .","On DATE , following the additional investigation , the case was closed once again on the grounds that L. had acted in the state of necessary defence , while the involvement of other individuals in the crime could not be established .","On DATE the ORG of ORG quashed that decision , finding that the investigation had not been comprehensive . It noted that there had been a significant number of investigative measures at the initial stage of the proceedings , including an on - site examination and forensic expert examinations , which had been carried out unprofessionally and in breach of procedural rules , and that the video recording and photographs of the crime scene could not be found . The court remitted the case for additional investigation , specifying , inter alia , that it was necessary to investigate the personality of the victim in more detail , establish the precise time of the crime , take measures to find the missing video recording and photographs , question witnesses , and conduct , if appropriate , additional expert examinations .","Following that decision , the investigation was renewed and conducted by ORG .","In his letter of CARDINAL DATE the Deputy Prosecutor of ORG informed the second applicant that the video recording of the crime scene had been found and a range of additional investigative measures had been undertaken . He indicated that the investigator of ORG should have been sanctioned for the inadequate investigation of the case , but he had been dismissed .","NORP In DATE the case was referred to ORG and in DATE it was referred to ORG for further investigative measures .","On DATE the police investigator terminated the proceedings on the grounds that L. had acted in the state of necessary defence . The applicants appealed against that decision .","On DATE ORG quashed that decision as unfounded and ordered further investigative measures .","In DATE and DATE ORG gave instructions to the police investigator as to the further investigations to be carried out . Those instructions included , among other things , an additional examination of the crime scene , questioning of witnesses , a reconstruction of the crime , confrontations between witnesses , and additional expert examinations .","As of DATE the proceedings were pending .","The applicants also instituted CARDINAL sets of civil proceedings against the law - enforcement authorities , claiming that they had failed to investigate the case properly and had breached procedures during the investigation . The claims in the first set of proceedings were rejected . The applicants did not inform ORG outcome of the second set of proceedings .","The applicants also requested that an investigation be opened concerning the disappearance of the harvest of sunflower seeds which had allegedly belonged to Mr V. PERSON and had been entrusted to his business colleagues . The authorities refused to open an investigation , after finding that the matter was of a civil - law nature and that there was no evidence that PERSON had ever owned the harvest in question .","The relevant domestic law can be found in the judgment of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE and DATE , DATE ) ."],"violated_articles":["2"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61549","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2003,"docname":"CASE OF COOPER v. THE UNITED KINGDOM","importance":1,"conclusion":"No violation of Art. 6-1","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicant was born in DATE and lives in GPE . At the relevant time he was a member of ORG ( ORG ) .","On DATE the applicant , along with a co - accused , was convicted by a district court - martial ( pursuant to section CARDINAL(CARDINAL ) of LAW DATE ) of theft contrary to LAW DATE . He was sentenced to DATE imprisonment , to be dismissed from the service and to be reduced to the ranks .","NORP The applicant 's court - martial was composed of a permanent president ( NORP Commander PERSON ) , CARDINAL other officers of lower rank ( ORG Leader PERSON and Flight Lieutenant PERSON ) and a judge advocate .","Wing Commander PERSON ' appointment to the post of permanent president was his last before retirement in DATE . Although he had been the subject of appraisal reports prior to DATE , he was not reported on thereafter . The CARDINAL ordinary members had attended the junior officers ' command course in DATE , which included training in disciplinary processes .","By a letter from the reviewing authority dated DATE , the applicant 's representative was informed that neither the findings nor the sentence of the court - martial would be varied . The authority had received advice from the Judge Advocate General .","The applicant 's appeal to ORG against conviction and sentence was dismissed on DATE .","LAW ( \u201c the LAW \u201d ) came into force on DATE and amended , inter alia , LAW DATE ( references below to \u201c the DATE LAW are to that LAW as amended ) . Trial by court - martial in the ORG is regulated , inter alia , by LAW , ORG DATE ( \u201c the DATE Rules \u201d ) and LAW for the ORG .","Section CARDINAL(CARDINAL ) of the DATE Act provides that any person subject to air - force law who commits a civilian offence , whether in GPE or elsewhere , shall be guilty of an offence against that section .","Section CARDINAL(CARDINAL ) of the DATE Act lists the punishments available to a court - martial following conviction and establishes , as a matter of law , the relative positions of each punishment in the hierarchy of punishments available ( the \u201c coda \u201d to section CARDINAL(CARDINAL ) of LAW ) .","The powers of punishment of courts - martial ( general and district ) are set out in CARDINAL of the DATE Act :","\u201c ( CARDINAL ) ORG general court - martial shall have power to try any person subject to air force law for any offence which under LAW is triable by court - martial , and to award for any such offence any punishment authorised by LAW for that offence .","( CARDINAL ) A district court - martial shall have the powers of a general court - martial except that it shall not try an officer or sentence a warrant officer to imprisonment , discharge with disgrace , dismissal or detention , and shall not award the punishment of death or of imprisonment for a term exceeding DATE or make an order committing a person to be detained under section CARDINALAA of this LAW for a period exceeding DATE . \u201d","A person guilty of theft is liable on conviction on indictment to imprisonment for a term not exceeding DATE or , on summary conviction , to imprisonment for a term not exceeding DATE or a fine or both ( section CARDINAL of LAW DATE ) .","An allegation that a person subject to air - force law has committed an offence must be reported to ORG accused . The ORG must investigate the charge , after which he may refer the matter to the higher authority ( section CARDINAL(CARDINAL)(b ) of the CARDINAL Act ) .","The higher authority is a senior ORG officer ( ORG ) . He is not legally qualified . He must decide , in respect of cases referred to him by a ORG , whether to refer the matter back to the ORG to be dealt with summarily ( unless the accused has already elected trial by court - martial ) ; to refer the matter to the prosecuting authority for a decision as to whether the accused should be prosecuted ; or to drop the charges . The higher authority 's decision is essentially a command decision , the higher authority being required to ask himself whether there are service reasons for prosecuting or not . Once the higher authority has taken this decision , he has no further involvement in the case .","The role of prosecutor is performed by the prosecuting authority . He is appointed by the Queen and must have been legally qualified for DATE ( section CARDINALA of the DATE Act ) . The prosecuting authority has a staff of CARDINAL ORG officers , who are all legally qualified ( section CARDINALC of the DATE Act ) and employed full - time on prosecuting duties . The barristers on staff are , as members of ORG and GPE , subject to the professional and ethical duties of LAW ( including a duty to act with independence and in the interests of justice ) . Similar professional obligations apply to the solicitors on staff , who are members of ORG and GPE . Those lawyers also apply the Code for Service Prosecutors , which has been endorsed by the Attorney General .","Following the higher authority 's decision to refer a case to it , the prosecuting authority has an absolute discretion , applying similar criteria as those applied in civilian cases by ORG , to decide whether or not to prosecute , what type of court - martial would be appropriate and what charges should be brought . The prosecuting authority also prefers the charges , conducts the prosecution ( Part II of Schedule I to LAW ) and , in particular , has the power to make all decisions concerning the prosecution ( section CARDINALB(CARDINAL ) of LAW ) .","NORP The prosecuting authority ( Air Vice PERSON ) was , at the relevant time , also Director of ORG ( ORG ) . In his prosecuting role , he was answerable solely to the Attorney General . As Director of ORG ( ORG ) he was answerable to the Air Member for ORG in Chief of ORG . Air Vice PERSON was not reported on in relation to his performance as the prosecuting authority , although he was reported on in relation to his role as Director of ORG ( ORG ) . DATE appraisal reports on prosecuting officers were drawn up by CARDINALst reporting officers within the prosecuting authority .","CAOs are ORG officers appointed by ORG . Once notified of a prosecution by court - martial by the prosecuting authority , a ORG is responsible for making the arrangements for courts - martial , including arranging venue and timing , ensuring that a judge advocate and any court officials required will be available , securing the attendance of witnesses and selecting members of the court - martial . Before commencement of the court - martial hearing , the power to dissolve it is vested in the responsible ORG . ORG discharges the administration and functions of the CAOs on their behalf and at their direction .","A district court - martial comprises a judge advocate , a president and not CARDINAL serving air - force officers ( \u201c the ordinary members \u201d ) of DATE experience in the ORG ( section CARDINAL of LAW ) .","The Judge Advocate General and his staff of judge advocates are appointed by the Lord Chancellor and are civilians who must have DATE experience as advocates or DATE experience as barristers . A judge advocate is appointed to each court - martial ( section CARDINALD(CARDINAL ) of the DATE Act ) by the Judge Advocate General .","A judge advocate is robed and sits in the centre with the president and CARDINAL of the members on his left and the other member on his right . A judge advocate 's role during a court - martial is to ensure the fair and regular conduct of the proceedings . He controls the course of the evidence and rules on legal objections . All rulings and directions on questions of law ( including questions of procedure and practice ) are given by the judge advocate in open court and are binding on the court - martial ( section CARDINALB(CARDINAL ) and ( CARDINAL ) of LAW ) . In this respect , judge advocates have available to them the same model directions ( prepared by ORG ) as are available to ORG judges . Once the court - martial hearing has commenced , the power to dissolve it is vested in the judge advocate .","A judge advocate also delivers a summing - up and further directions in open court before the members of the court - martial retire to consider their verdict , in the same way as a ORG judge would direct the jury . The judge advocate does not retire with the president and ordinary members and has no vote on verdict : as the members of the court - martial are the sole arbiters of fact , they alone must decide whether the charge has been proved or not ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of the DATE Act ) . Following the deliberation on verdict , the judge advocate checks the findings . If he is satisfied that they are not contrary to law , the findings are announced . If he is not so satisfied , he gives the president and ordinary members further directions in open court , following which they retire to reconsider their findings in the light of the judge advocate 's directions ( Rule CARDINAL ) and ( CARDINAL ) of the CARDINAL Rules ) . The judge advocate retires with the other members of the court - martial for the deliberations on sentence ( during which he can give , if necessary , guidance on the appropriate sentence to be imposed ) and votes on sentence .","The president of a court - martial ensures that the hearing is conducted in accordance with service tradition ( Rule CARDINAL ( CARDINAL ) of the CARDINAL Rules ) . During the deliberations on verdict , the president chairs the discussions .","The post of permanent president was first created in DATE , not by any statutory provision but rather as a matter of policy . Permanent presidents were selected from among serving ORG officers of suitable age and rank ; they have always had the rank of wing commander . Legal qualifications or experience were not required . The appointment was full - time , was usually expected to be for a period in excess of DATE and , almost without exception , was the officer 's last posting before his retirement . The ORG Secretary had the power to terminate the appointment of a permanent president , although this never happened . While appraisal reports were not prepared on permanent presidents sitting in army courts - martial , such reports were made on those sitting in ORG courts - martial . However , the reports did not concern their judicial decision - making .","In NORP v. PERSON ( DATE , unreported ) , the judge advocate held that a particular permanent president could not be regarded as independent and impartial for the purposes of LAW . Although the ruling was limited to the particular case , recourse to permanent presidents was abandoned pending the outcome of the judgment of ORG in PERSON , PERSON and PERSON and Others ( \u201c NORP v. PERSON and Others \u201d ) . That judgment was delivered on DATE ( see paragraphs CARDINAL below ) , but permanent presidents have not been reintroduced to ORG courts - martial .","There is no requirement that the ordinary members of courts - martial should have formal legal training ( Rule CARDINAL(b ) of the CARDINAL Rules ) .","Certain officers can not be selected for courts - martial . LAW ) of the DATE Act provides that the ORG , the COs of the accused , members of the higher authority , investigating officers and all other officers involved in inquiring into the charges concerned are all excluded from selection . Rule CARDINAL of the DATE Rules excludes from selection an officer serving under the command of the higher authority referring the case , the prosecuting authority and the ORG . ORG for the ORG ( ORG CARDINAL(f ) ) further underline that , so far as is practicable , a court - martial is to be composed of officers from different ORG stations .","At the relevant time ( DATE ) , ordinary members were randomly selected from a volunteer database for each court - martial . Individual officers were allowed to volunteer by completing a standard form or , alternatively , over the telephone . The information so provided would be entered on a computer database by the ORG . When members were required for a court - martial , the ORG looked for members in the database who were not excluded from participating in a court - martial . If volunteers could not be found in this way , a station would be selected from an alphabetical roster in each command using a separate database . The station would then be notified of those officers on that station , if any , who were on the volunteer database and the station would then be responsible for designating the officer(s ) and informing the ORG .","The ordinary members remain subject to ORG discipline in the general sense since they remain ORG officers , but they are not reported on in relation to the carrying out of their duties as members of the court - martial and , in particular , in relation to their judicial decision - making . Attempting to influence , or influencing , a member of a court - martial amounts to the common - law offence of perverting the course of justice and\/or to the offence of conduct to the prejudice of good order and air - force discipline ( section CARDINAL of the DATE Act ) .","When the members have been designated and the court - martial has been convened , the members are sent ORG ( ORG ) briefing notes for court - martial members ( see paragraphs CARDINAL - CARDINAL below ) along with a list of prosecution witnesses . The members are required to examine the list and to tell the ORG if any of the witnesses are known to them . They are also advised that , should they subsequently discover that they do know someone , they should inform the judge advocate .","At the start of the court - martial hearing , the names of all of the members of the court - martial are read out and the accused can object to any sitting member ( section CARDINAL ) of LAW ) . Each member of an ORG court - martial must take the following oath :","\u201c I swear by Almighty PERSON that I will well and truly try the accused before the court according to the evidence , and that I will duly administer justice according to law without partiality , favour or affection , and I do further swear that I will not on any account , at any time whatsoever , disclose the vote or opinion of any member of this court - martial , unless thereunto required in due course of law . \u201d","Deliberations of the court - martial members are confidential , a member being forbidden to reveal any opinion or vote . The members of the court - martial are required to speak during deliberations , and at the close of deliberations to vote on verdict and sentence in ascending order of seniority . Decisions on verdict and sentence are reached by majority vote ( section CARDINAL of the DATE Act ) . The casting vote on sentence , if needed , rests with the president ( section CARDINAL(CARDINAL ) of the CARDINAL Act ) who , at the time of the applicant 's court - martial , gave the reasons for the sentence in open court . Under the present procedure , those reasons are given by the judge advocate ( Rule CARDINAL(CARDINAL ) of the CARDINAL Rules ) .","All guilty verdicts reached , and sentences imposed , by a court - martial must be reviewed by the reviewing authority within prescribed time - limits ( section CARDINAL of the DATE Act ) . Although ultimate responsibility rests with ORG , the review is , as a matter of practice , generally delegated to the ORG Secretary or to such officer who at that time is carrying out the duties of the Air Secretary ( section CARDINAL(CARDINAL)(b ) of the DATE Act ) . Post - trial advice is received by the reviewing authority from the Judge Advocate General , who advises whether or not the conviction or sentence should be altered in the convicted person 's favour . This advice is not binding , but is generally accepted by the reviewing authority . It is disclosed to the accused , who has the right to present a petition to the reviewing authority .","The reviewing authority may substitute a finding of guilt which could have been made by the court - martial and if the court - martial must have been satisfied as to the facts which would justify making that finding ( section CARDINALAA(CARDINAL ) of the DATE Act ) , and it may also \u201c pass any such sentence ( not being , in the opinion of the authority , more severe than the sentence originally passed ) open to a court - martial on making such a finding as appears proper \u201d ( section CARDINALAA(CARDINAL ) of the CARDINAL Act ) . The reviewing authority also has the power to quash any verdict of guilt and associated sentence and to authorise a retrial ( section CARDINALA(CARDINAL ) of the CARDINAL Act ) . It is then for the prosecuting authority to decide whether to seek a retrial . While the person concerned is not specifically heard by the reviewing authority on the question of retrial , the decision of the prosecuting authority to seek a retrial can be challenged by an accused as an abuse of process . If convicted following a retrial , an individual retains his access on verdict and sentence to ORG ( see paragraphs DATE below ) . The reviewing authority gives a reasoned decision and , should it substitute a finding of guilt and\/or sentence , that ruling is treated for all purposes as if it was reached or imposed by the court - martial itself .","The Courts - Martial Appeal Court is a civilian court composed of judges from ORG . A convicted person has a right of appeal to ORG against both conviction and sentence ( section CARDINAL of ORG DATE , as amended \u2013 \u201c the DATE LAW ) .","An appeal against conviction will be allowed where ORG finds that the conviction is unsafe , but dismissed in all other cases . The test of what is \u201c unsafe \u201d is the same as that applied in appeals against convictions by the civilian criminal courts . An appeal against sentence may be allowed where ORG considers that the sentence is not appropriate for the case ( section CARDINALA of the DATE Act ) . It has power , inter alia , to call for the production of evidence and witnesses , whether or not produced at the court - martial ( section CARDINAL of the DATE Act ) . It can also authorise a retrial ( section CARDINAL(CARDINAL ) of the DATE Act ) .","In NORP v. PERSON ( judgment of ORG of DATE ) , the appellant pleaded guilty to a charge of absence without leave and was sentenced to , inter alia , DATE detention . The reviewing authority rejected his petition and Mr Justice PERSON gave the judgment of ORG . Having noted in detail the advice of the Judge Advocate General to the reviewing authority , he quoted as follows from a prior judgment of ORG ( NORP v. PERSON , judgment of DATE ) :","\u201c In our judgment , the ORG has to bear in mind , in dealing with an appeal of this kind , ... the somewhat ' hybrid jurisdiction ' which [ ORG ] exercises ; in that it is clearly free to correct any injustice , but it nonetheless has to be mindful that those imposing and confirming sentences , particularly , it is to be said ... in relation to an offence of desertion , are particularly well placed and indeed better placed than [ ORG ] in assessing the seriousness of offending in the context of service life . \u201d","Mr Justice PERSON continued :","\u201c The offence of going absent without leave , as indeed the offence of desertion , is not one in respect of which any civilian parallel exists . The sentencing considerations involve factors that are particular to the armed services , in respect of which their judgment and experience are entitled to great weight . A court should be reluctant to interfere with such courts - martial sentencing decisions , particularly where the Judge Advocate General has reviewed the matter and has dismissed the petition in the terms in which he did here . The considerations particular to this sort of military offence relate to the significance of the offence for the maintenance of military discipline and efficiency , the need for deterrence , the significance of rank and the availability of other measures from dismissal to loss of rank and pay , which are in many ways not available or not paralleled in the civilian sphere . Indeed some of those factors would also be of particular weight when ORG is dealing with offences which do have parallels in the civilian sphere , and would justify caution in interfering with courts - martial sentences ; even more so do they justify caution when dealing with offences which have no parallel in the civilian sphere . \u201d","NORP v. ORG ( judgment of ORG of DATE ) concerned a retrial following a decision of the reviewing authority . Lord Justice PERSON in ORG stated as follows :","\u201c The Reviewing Authority directed ... that the Prosecuting ORG consider whether there should be a retrial . That was an inappropriate direction on the part of ORG because under section CARDINALA of the [ CARDINAL LAW ] the decision whether or not to order a retrial must be one for ORG itself and not for ORG , though of course ORG could , if so disposed , canvas the views of ORG , and of the proposed defendant , as to whether or not there should be a retrial . Following that , ORG was advised of the error of its approach and ... directed a retrial in the interests of justice ... If [ such a ] decision of ORG was to be challenged , it could only be challenged by means of judicial review ... \u201d","In R v. PERSON and NORP v. PERSON ( judgment of ORG of DATE ) , the sentence of the court - martial was DATE detention and the reviewing authority substituted a sentence of DATE imprisonment . ORG quashed the latter sentence and replaced it with a sentence of DATE detention .","The briefing notes are sent by ORG to the members selected for a court - martial . The notes applicable at the time of the applicant 's court - martial ( DATE ) could not be located by the parties . The notes issued in DATE are described below .","The introductory part of the notes was entitled \u201c Important points for members of courts - martial \u201d and provided as follows :","\u201c Before trial","Read the accompanying briefing document .","Contact the Courts - Martial Administration Unit ( ORG ) if you are wrongly described in the convening order .","NORP If you think that you may not be eligible to sit as a member of the court - martial \u2013 e.g. because you know the accused or something about him or a witness , or for any other reason \u2013 tell the FAC or , if you are already at court , ask to see the Judge Advocate privately and tell him . Do not mention your concerns to anybody else .","Do not attempt to find out any details of the case in advance of going to court , and do not speak to any one , or allow anybody to speak to you about it \u2013 including when you arrive at the unit where the court - martial is to be held .","At the trial","Once the trial has started you must not talk to anyone about the case ( other than the remaining members of the court when all together ) for as long as it continues .","Listen carefully to the witnesses and advocates , and to what the Judge Advocate tells you ; and reach your decision only on what you hear in court .","You may only question witnesses through the Judge Advocate , or with his permission .","You must not visit the scene of the alleged offence unless the Judge Advocate so directs , when everyone involved in the case will go .","After the trial","You must never reveal anything to anyone about the deliberations on finding or sentence unless required to do so ' ... in due course of law ' . \u201d","Paragraph CARDINAL of the briefing notes emphasised the central role of the judge advocate by telling the members of the court - martial that :","\u201c The main thing to remember is that the Judge Advocate will conduct the court - martial ... He will therefore decide all questions of law , practice and procedure ... He is a member of the court and his rulings and directions are binding on the other members of the court and , of course , the parties to the proceedings . Subject to the Judge Advocate 's conduct of the trial , it will be the President 's duty to ensure that the trial befits the traditions and standards of the ORG ; and , in particular , that officers and other persons under instruction do not interfere in the trial .... \u201d","The notes went on to warn the members as follows :","\u201c CARDINAL . When you arrive at the ORG , do not speak to any Unit personnel ... and certainly not to any ORG executive . If you disregard this direction you may find yourself inadvertently talking to , for example , a witness or a lawyer involved in the case , which in turn might result in you being debarred from the trial or , indeed , the trial being prejudiced . If someone has spoken to you and you have any doubts about your position in this respect , you must tell the Judge Advocate privately before the trial commences .","Mention has been made above of the President 's duties . Apart from that , the function of the President and the other officer members is to decide , on the evidence , whether the accused is guilty or not guilty ; and if guilty , then to decide , together with the Judge Advocate , the sentence to be imposed . The Judge Advocate will tell you all you need to know about the law and procedure in order to discharge those functions . \u201d","Paragraph CARDINAL informed the members that they were :","\u201c ... exempted from occupying public accommodation on the accused 's ORG . ORG must manifestly be seen to be done and this aim is assisted by your being seen to avoid local Unit influences . \u201d","Paragraph CARDINAL of the briefing notes went on to advise that :","\u201c Save for resolving any queries members may have about court etiquette and procedure ( e.g. putting on and removal of head - dress , etc . ) under no circumstances must the President purport to carry out any form of briefing with other members of the court in the absence of the Judge Advocate . However , he should at this stage make sure the officers under instruction are aware of their duty not to do anything which interferes with the conduct of the trial \u2013 e.g. must not say anything or make gestures or imply they have any prior knowledge about the case or the accused , etc . \u201d","Paragraphs CARDINAL and CARDINAL provided :","\u201c CARDINAL . It is the [ ORG ] 's duty to ensure that the officer members of the court are qualified to act as members , and are not ineligible in any way , i.e. : that they have the requisite number of DATE ' commissioned service , for example ; and that they have not sat as members of a court - martial which has tried the accused before , or been involved in any investigation or inquiry into matters relating to the subject matter of the charge against the accused ... However , if before the date of trial , you think you may be ineligible , or not qualified to sit , or for example know something about the accused which could prejudice your impartiality , or know someone who might be a witness in the case ( you will receive prior notice from the ORG of persons who may be called as prosecution witnesses ) you must not mention the matter to any other member but should tell the ORG who will , if necessary , arrange for your place on the court to be taken by someone else . If your concern about any of the above matters does not arise until you get to court , you must not talk about it to anyone else but should ask to see the Judge Advocate privately and tell him . Likewise , if during the trial you realise that , e.g. you know a witness , you should tell the Judge Advocate privately without mentioning it to anyone else .","Before the court is opened , the Judge Advocate may join you in your room briefly and , if he does , will answer any queries about this briefing document . If he does not meet you beforehand and you have any such queries , you should send him a message to that effect through the ORG orderly . \u201d","Paragraph CARDINAL provided that the convening order would be read when everyone was assembled in the courtroom , that the members of the court - martial would identify themselves and that the judge advocate would ask the accused if he or she objected to any of the members . The judge advocate would then administer the oath to each member of the court - martial individually ( paragraph CARDINAL of the notes ) .","Paragraph CARDINAL informed members that , when the opening formalities were complete :","\u201c ... The Judge Advocate may then warn the court not to talk to anyone else about the case for as long as it continues . That includes family , friends , work associates , the prosecutor , defence counsel and , most importantly , the accused and anyone who may be a witness . To that end , other than when the Judge Advocate is sitting alone , members are not to leave the courtroom during the trial except to go to the lavatory , and for any TIME or luncheon adjournment ; and are not to associate with Unit personnel either professionally or socially until it is over . Refreshments will be brought into the courtroom as required . \u201d","Paragraph CARDINAL of the notes provided :","\u201c The President and members must not , when taking refreshments in the courtroom , or at any other time , including when sitting alongside the Judge Advocate , look at papers lying on the desks of the Judge Advocate , prosecutor or defence counsel . Such papers might include information which the court must not see under any circumstances . \u201d","Paragraph CARDINAL ( reflecting Rule CARDINAL ) of the DATE Rules ) pointed out that the president and ordinary members of the court - martial might only put questions to a witness through the judge advocate . If at the end of the witness 's evidence they felt that they must hear that witness on a particular question , then the question was to be passed on in writing to the judge advocate , who could put it to the witness in the correct way .","Paragraph CARDINAL ( drawing on Rule CARDINAL of the DATE Rules ) provided that , following the addresses of the prosecuting and defence counsel , the judge advocate would sum up the main points of evidence and direct the other members of the court on the law relating to the case . The members of the court - martial were not to ask the judge advocate any questions during his summing - up , but they could ask in writing for further directions , which the judge advocate had to give in open court .","Paragraph CARDINAL ( reflecting rule CARDINAL of the CARDINAL Rules ) dealt with deliberations on the verdict :","\u201c While the court is deliberating on the findings , no one is to be present except the President , members and officers under instruction . The President and members are not to separate until the finding has been reached , unless the Judge Advocate directs that in the interests of justice they may separate ... If any person has to leave the courtroom for personal reasons , he must be told by the President not to speak to any person on any account . If the court wishes to hear again evidence recorded by the VCR , the Judge Advocate must be told and , on his direction , the court must be reopened and the passage read in open court . \u201d","Further guidance on deliberations was given in paragraph CARDINAL of the briefing notes :","\u201c The President will normally initiate the discussion on the issue of guilt or innocence . The President should ensure that every court member present gives his opinion as to the finding on each charge separately , in ascending order of seniority commencing with the junior member . A unanimous decision is preferable , but a majority of votes will decide the issue , and the finding of the majority will be recorded as the finding of the court . The President should write down the finding(s ) on the record of findings sheet and sign it . Prior to reopening the court , the President should remind any members overruled by the majority that they must now adopt the finding of the court . This is important if it becomes necessary to consider the sentence , as their previous feelings should not influence their decisions . \u201d","Paragraph CARDINAL explained the process by which the judge advocate would review the record of the deliberations to check whether the findings were not contrary to law and his related powers ( see also paragraph CARDINAL above ) . This paragraph also noted that the judge advocate \u201c may , for sentencing purposes , inquire into any finding of fact reached by the court during its deliberation on finding ... though it is anticipated he will exercise this power very sparingly \u201d .","Paragraph CARDINAL explained what was to happen when sentence was being considered , either after a guilty plea or following conviction :","\u201c The court will close to deliberate on sentence , i.e. no one will be present save for the members ( including , of course , the Judge Advocate ) and any person under instruction . The Judge Advocate will initiate discussion on the sentence and will inform the members , e.g. about punishments and the principles to be observed . Sentence will be determined by a majority of votes if necessary and the opinions of the officer members will be given orally in ascending order of seniority , commencing with the junior member . The Judge Advocate will decide where he votes in the order . In the case of an equality of votes , the President has a second or casting vote on sentence which is exercisable once , i.e. he has a final , determining vote . When sentence has been decided , it is entered on the record of sentence which the Judge Advocate will have . The President will sign that record , as will the Judge Advocate . \u201d","Finally , paragraph CARDINAL provided as follows :","\u201c After the President has announced the trial is concluded and directed the court orderly to carry on , and the Judge Advocate has dissolved the court , the President may invite the officers under instruction to express their views about the case . Thereafter , he should remind them of the oath of secrecy they have taken before releasing them . The court orderly should be instructed to burn or shred all scrap paper . ... \u201d","An aide - m\u00e9moire for non - permanent presidents of courts - martial was annexed to the briefing notes ( Annex A ) . This document described the court - martial procedures from the point of view of the duties and role of the president . Annex B to the notes outlined the court orderly 's duties ( essentially to ensure the smooth running of the court - martial ) . Annex C contained the general rules for personnel attending courts - martial which concerned the wearing of head - dress , seating arrangements for witnesses and members of the public and other matters of etiquette .","The appellants ( from both the ORG and the army ) had been convicted by a district court - martial ( apart from one who had pleaded guilty ) . Their appeals to ORG were unsuccessful . Before ORG , CARDINAL of the appellants argued that the permanent president 's role meant that their courts - martial lacked independence and impartiality . The remaining appellants challenged more generally the compatibility with LAW trials by court - martial on charges of an offence against the ordinary criminal law . ORG granted leave to appeal .","Prior to the delivery of ORG judgment in that case , a Chamber of this Court adopted its judgment in GPE v. the GPE ( no . CARDINAL , ECHR CARDINAL-I ) , in which ORG concluded that ORG ( army ) court - martial , convened under LAW , fell foul of the independence and impartiality requirements of LAW .","Subsequently , ORG unanimously dismissed the appeal in PERSON and Others . Lord PERSON , Lord PERSON and Lord PERSON of ORG agreed with the detailed judgments delivered by Lord PERSON of NORP and Lord PERSON of PERSON .","Lord PERSON rejected the challenge to the impartiality and independence of the permanent president , agreeing with the ORG 's finding on the point in GPE , cited above :","\u201c I do not for my part doubt that ... ORG [ was ] correct . [ Permanent presidents ] are appointed to that office in DATE of their service careers , whether in the army or the [ ORG ] . They are officers who have no effective hope of promotion and no effective fear of removal . While no doubt they are , as officers , answerable for any extra - judicial delinquency , as any judge might be , they are answerable to no one for the discharge of their decision - making function . The only factual matters on which [ the appellants ] could rely were the reports written on ORG who presided [ at CARDINAL of the ORG courts - martial ] ( there being no report on any army [ permanent president ] ) . It would in my opinion be preferable if no DATE report were written on officers serving as [ permanent presidents ] , but those on Wing Commander PERSON gave no support in substance to [ the appellants ' ] argument . While praising the wing commander 's efficiency and effectiveness as a [ permanent president ] , they made no allusion at all to the quality or outcome of any of his judicial decisions , but instead made express reference to the isolated , unsupervised and independent nature of his role . There is no substance in this challenge . \u201d","As to the role of the ordinary or junior members of the court - martial , Lord PERSON found as follows :","\u201c It goes without saying that any judgment of ORG commands great respect , and section CARDINAL(CARDINAL ) of LAW DATE requires the ORG to take any such judgment into account , as it routinely does . There were , however , a large number of points in issue in GPE v. the GPE , and it seems clear that on this particular aspect ORG did not receive all the help which was needed to form a conclusion . It is true that the junior officers who sit on courts - martial have very little legal training , but that is also true of the [ permanent president ] whose presence was accepted [ in GPE ] as a guarantee of the rights of the accused . It is also true that junior officers sitting on courts - martial remain subject to army discipline and reports . But there is nothing to suggest that any report ever is or ever has been made on any junior officer 's decision - making as a member of a court - martial , and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members . There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision - making , and again it is hard to see how they could . It is true that there is no statutory bar on an officer being made subject to external army influence when sitting on the case . Any person seeking to influence the decision of a sitting member of a court - martial otherwise than at the hearing would , however , be at risk of prosecution either for perverting or attempting to pervert the course of justice or under LAW of LAW . The officer members are drawn from a different command from the accused . Briefing notes sent to officer members of courts - martial before they sit enjoin them not to ' speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator ' . They are instructed in writing not to talk to anyone about the case ( other than the other members of the court - martial , when all are together ) for as long as the trial continues , and this instruction is routinely emphasised by the judge advocate . The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid ' local unit influences ' . They are instructed ' not to associate with ORG personnel either professionally or socially until the trial is over ' . At the outset of the hearing the officers take an oath in terms quoted by ORG in [ paragraph CARDINAL of its judgment in GPE ] , swearing to try the accused ' according to the evidence ' and to ' administer justice according to the Army Act DATE without partiality , favour or affection ' . In considering the independence and impartiality of the [ permanent president ] both the [ ORG in the appellants ' cases ] and ORG in GPE ... attached weight to established convention and practice . In my opinion the rules governing the role of junior officers as members of courts - martial are in practice such as effectively to protect the accused against the risk that they might be subject to ' external army influence ' , as I feel sure ORG would have appreciated had the position been more fully explained . \u201d","DATE . Turning to the criticism of the reviewing authority in GPE , Lord PERSON noted :","\u201c Its role can certainly be seen as anomalous , since ordinarily a binding decision of any court can not be disturbed otherwise than ( exceptionally ) by itself or by a superior appellate court . It is however to be noted that the review of conviction and sentence carried out by the reviewing authority , whether the accused seeks such review or not ... can not work otherwise than to the advantage of the accused . The reviewing authority can not substitute conviction of a more serious offence , nor can it substitute a sentence which is in its opinion more severe ( section CARDINALAA(CARDINAL ) ) . This subsection does not confer a discretion , but calls for an exercise of judgment . It is essentially the same exercise of judgment as is required of ORG ... which has not given rise to difficulty in practice . If the reviewing authority were to substitute a sentence which the accused considered to be more severe than that imposed by the court - martial , it would be open to the accused to challenge the substituted sentence on appeal to ORG , and it is important to note that the intervention of the reviewing authority in no way diminishes the rights of the accused on appeal . It is difficult to see any analogy with the situation which ORG considered in GPE v. GPE ... where the applicant , with a final and irreversible judgment of a court in his favour , was deprived of the benefit of that judgment by a later decision in proceedings initiated by a party not involved in the earlier case . If a court - martial is not an independent and impartial tribunal for the trial of civil offences committed by service personnel in GPE and GPE , the reviewing authority could not be relied on to save it . But if it is , I find it difficult to understand how the role of the reviewing authority can undermine or reduce its independence and impartiality . [ The appellants ] recognised the difficulty of this argument and did not seek to sustain the judgment of ORG on the point . \u201d","The appellants had also generally argued that the whole culture of the services was such as to incline those who took part in courts - martial to attach excessive weight to the values of discipline and morale , to the point of rendering a trial unfair . It was argued that the ritual accompanying courts - martial was oppressive and unfair . Lord PERSON observed :","\u201c I would for my part have no hesitation in agreeing that a court - martial is a court of law , not a parade , and its procedures ( while properly involving some formality ) should be those appropriate to a court of law and not the parade ground . I would also accept that officers serving on courts - martial will disapprove of those found to have acted in breach of the law governing their respective service . But judges and jurors in ORG will similarly disapprove of those found to have infringed the ordinary criminal law . There is no reason to think that in the former case any more than in the latter such disapproval will infect the tribunal 's approach to deciding whether the particular accused has broken the law in the manner charged . Officers will appreciate , better than anyone , that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny . In the absence of any evidence at all to support it , I could not accept the suggestion that any modern officer would , despite the oath he has taken , exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so . \u201d","Lord PERSON rejected the suggestion that , by its very nature , a trial of a civilian offence by court - martial was incompatible with LAW and he referred , in this respect , to this ORG 's judgment in PERSON and Others v. the GPE ( judgment of DATE , Series A no . CARDINAL ) and to PERSON ( cited above , \u00a7 CARDINAL ) . Since the trial by court - martial did not in itself violate LAW , the decision as to whether the court - martial was to be regarded as an independent and impartial tribunal depended on the safeguards which were in place . He noted generally in this respect :","\u201c A submission of this kind requires CARDINAL , as a starting - point , to consider what is meant by the requirement that a tribunal should be independent and impartial . As ORG noted in GPE ... the concepts of independence and objective impartiality are closely linked . In the present cases , in substance , the court - martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant service authorities , especially superior officers who might wish to secure some particular result , supposedly in the interests of the morale or discipline of the service or of some particular unit . As a result of the abolition of the role of the convening officer by LAW , no issue was raised in these cases as to the independence of the members of the tribunal from the prosecution . On the other hand , Article CARDINAL does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part . What matters is that , while sharing the values of the service community , the members of the court - martial should put aside any prejudices which they may have and act DATE and be seen to act DATE independently and impartially in deciding the issues in the case before them . \u201d","As to permanent presidents , Lord PERSON observed that , while there had been no appraisal reports on permanent presidents in the army since DATE , the ORG had continued the practice of preparing reports on permanent presidents . He was of the view that \u201c that practice [ was ] undesirable and , as the army experience show[ed ] , unnecessary . It would be better if it were discontinued \u201d . However , he went on to observe that such reports generally , and the ones completed in the case before him , commented on the manner in which the permanent president had tackled his role as a permanent president ( referring to the administrative aspects of the job ) and did not bear on his actual decisions when sitting in a court - martial . Indeed , Lord PERSON noted that the reports in question had recognised that the permanent president 's role was one in which the president was \u201c isolated and unsupervised and which GPE ] independence \u201d which the ORG Secretary \u201c honour[ed ] and respect[ed ] \u201d . The reports did not therefore give the slightest reason to doubt the permanent president 's independence . On the contrary , he considered that","\u201c ... all involved in making these reports were well aware of the need not to intrude upon the decisions reached by him when sitting as president . Even had anyone wished to intrude , the oath of secrecy taken by the members of courts - martial would have made it impossible to investigate those decisions . \u201d","As to the other members of the court - martial , Lord PERSON noted the conclusion of ORG . He also observed , however , that \u201c for whatever reason ... ORG was given rather less information than the [ ORG ] about the safeguards relating to the officers serving on courts - martial \u201d . He drew parallels between the members of the court - martial and jurors , noting that , while jurors brought certain prejudices and experiences with them to a trial , the safeguards of an oath and the trial judge 's directions were considered by the domestic courts and by ORG to be sufficient to ensure that jurors put aside their prejudices and reached a just verdict on the evidence . The members of courts - martial took a similar oath and the judge advocate gave them the same kind of directions which a trial judge would have given jurors : there was no reason to suppose that members of a court - martial would be less faithful to their oath or less diligent in applying the directions given by the judge advocate than would jurors , particularly when \u201c trust and obedience to commands \u201d were important to the officers sitting on a court - martial .","Indeed , Lord PERSON considered that the steps taken to ensure that the members of a court - martial acted independently and impartially were , on CARDINAL view , even more strict than with a jury . Those steps had not , he noted , been outlined to the ORG in GPE . He went on to detail those steps . In this connection , he referred to the briefing notes sent to members of the court - martial and noted as relevant safeguards those matters outlined at paragraphs CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL of those notes . Lord PERSON commented on these safeguards as follows :","\u201c The various provisions which I have quoted from the briefing notes for the members of courts - martial reinforce significantly the message , proclaimed in any event by the oath and the directions of the judge advocate , that the members are to act independently and impartially . In order to be seen to avoid local unit influences , the members are not to stay in public accommodation at the accused 's unit . They are not to speak to unit personnel and especially not to any officer who may be attending the trial DATE at the risk of being debarred from the trial or indeed of the trial being prejudiced . They are not to associate either professionally or socially with such personnel until the trial is over . There is a veto on the president briefing the other members of the court in the absence of the judge advocate . The members are to tell the court administration officer if they know something about the accused which could prejudice their impartiality or if they know someone who might be a witness in the case . The members are warned not to talk to anyone else about the case as long as it continues . They are not to look at any papers which are before the judge advocate , prosecutor or defence counsel , for fear of seeing something which they ought not to . When they deliberate on conviction or sentence , the most junior member is to give his opinion orally first \u2013 again , obviously , with the aim of ensuring that the junior members express their own personal view , uninfluenced by the more senior members . In terms of the members ' oath their deliberations are to be kept secret and this secrecy is further ensured by the instruction to the court orderly at the end of the proceedings to burn or shred all scrap paper . Again , the object is to prevent the members feeling , or coming under , any outside pressure during or after the trial by reason of their participation in the decision in the case .","[ The appellants ] did not suggest that these were other than genuine instructions to the members which they were intended to observe . Nor was it suggested that the instructions were in practice ignored or that they had been ignored in these particular cases . But if they are indeed observed , I find it hard , if not impossible , to see how anyone either in the court or , more particularly , outside the court could improperly influence the members ' decision either on conviction or on sentence . Certainly , it is hard to see what more could be done to ensure that , while sitting in the court - martial , the officers act not as officers subject to command but as independent and impartial members of the court , reaching the verdict and determining the sentence according to law but according also to their own individual conscience . \u201d","Lord PERSON noted that there were , however , CARDINAL differences between members of a court - martial and an ordinary jury , differences which he concluded did not undermine the independence of the former :","\u201c First , the routines , the periods of boredom and the pleasures , pains and pressures of service life would be unknown to most jurors DATE , although they would have been familiar to many of their fathers and grandfathers . By contrast , members of a court - martial know all about them and about the society in which the accused lives and works . [ The appellants ' counsel ] suggested that officers on a court - martial , imbued by their training with notions of rank and discipline , would always tend to believe the evidence of a fellow officer or a non - commissioned officer rather than the evidence of a private . By contrast , he said , members of a jury , who carried no such burden of preconceptions , would be able to see more clearly and judge purely on the evidence before them . Of course , this submission was really just a matter of assertion . There was , and could be , no evidence to back it up . Indeed , it was somewhat undermined by the conviction of [ CARDINAL of ] the appellants ... [ Those appellants ' ] conviction was based on the evidence of [ CARDINAL Guardsmen ] ... In accepting the guardsmen 's evidence , the court - martial must have disbelieved the evidence of their superiors in rank ... In any event , it is possible to fashion an argument \u2013 equally a matter of assertion \u2013 that officers who are familiar with service life and who are in close contact with service personnel of all ranks may well be less impressed by mere rank and better able to gauge the underlying realities than jurors confronted for the first time with officers or non - commissioned officers telling an apparently plausible tale . Viewed in this light , the specialised knowledge and experience of the members of a court - martial could be seen as a positive advantage rather than as a disadvantage . However that may be , I see no reason to think that , when duly directed by the judge advocate , officers on a court - martial can not properly assess the evidence and return a true verdict based on it . I therefore reject the appellants ' argument on this point .","The members of a court - martial perform a role in deciding sentence which is no part of a jury 's function in GPE . I accept that , in determining sentence , the members will indeed have regard to such issues as the impact of the offence on service morale and discipline . They will , inevitably , be more aware of these effects than a civil judge would be . Therefore , while the safeguards of the independence and impartiality of the members should mean that they approach their verdict in much the same way as jurors in a civil trial , it can not be assumed that , when passing sentence , the court - martial will necessarily give exactly the same weight to these service factors as would a ORG judge . The sentences which a court - martial passes may therefore not coincide exactly with the sentences which a civil judge would pass on the same facts . In my view that does not call the decisions of the courts - martial into question , either generally or in terms of LAW . Any difference in sentencing does not mean that the members are not independent or impartial , but merely that , though both independent and impartial , they may assess the various factors differently ... There are ... CARDINAL additional points to bear in mind . The first is that the judge advocate advises the other members on sentence and also has a vote on sentence . He will be able to bring to bear his informed view as a lawyer on what sentence would be suitable . The second safeguard is that any sentence imposed by the court - martial is subject not only to review by the reviewing authority but also to appeal , on the ground that it is not appropriate , with the leave of the [ ORG ] . The members of the [ ORG ] are civil judges and are in a position to correct any inappropriate punishment that the court - martial may impose by reason of the members ' military background . \u201d","Lord PERSON considered that all of these matters had to be borne in mind when considering the particular characteristics of the members of the court - martial to which the Chamber attached importance in GPE . He went on to identify and disagree with the specific concerns expressed by the ORG in that case as regards the independence of the ordinary members :","\u201c The first was that the officer members had no legal training . That applies also in the present cases and indeed must apply in virtually all cases . As the briefing notes show , officers who may be called upon to sit on courts - martial are given some training by being allowed to sit and observe proceedings , including the members ' deliberations . This should mean that , when they are eventually asked to sit , they should not find the procedures wholly unknown or strange , but it goes no further than that . While in GPE v. GPE ORG seems to have regarded the lack of formal legal training as a significant defect , as I have already noted , in PERSON v. the GPE ... ORG held that ORG was an independent and impartial tribunal , even though CARDINAL of the CARDINAL members were military officers with no legal training . Given the other safeguards which were in place in the present cases , I see no reason to conclude that the absence of legal training undermined the members ' independence and impartiality .","ORG attached importance to the fact that the officers , other than the permanent president , remained subject to army discipline and reports . In so far as the members of the courts - martial in the present cases also remained subject to service discipline , they simply shared the characteristic of all serving members of the armed forces . It must have been equally true of the military members of ORG in PERSON v. the GPE . Moreover , the fuller information available to the ORG about the safeguards in place to protect the independence of the members of courts - martial shows clearly , in my view , that , just like the NORP officers in PERSON v. the GPE , the officers in these cases would not have been under the command of any higher authority in their function as members of the courts - martial . Indeed , as [ ORG ] pointed out , contrary to the assumption of ORG , there was even a formal legal bar to any superior officer trying to influence their decision , since this would have constituted the criminal offence of attempting to pervert the course of justice .","It is true , of course , that , as in GPE v. GPE , so also in these cases , leaving aside the permanent presidents , the officers sitting on the courts - martial would have remained subject to reports . [ The appellants ] indeed drew attention to a number of such reports where mention is made of the fact that , during DATE in question , the officer concerned had sat as a member of a court - martial . In itself that must be unobjectionable since the information that the particular officer has had this experience may be relevant at some future date if , for instance , consideration is being given to appointing a permanent president . What would be objectionable would be any report which made reference , whether favourable or unfavourable , to an officer 's decisions when sitting on a court - martial . But [ the appellants ] could point to no report where this had been done . The only report which referred to an officer 's performance in relation to a court - martial was one relating to [ CARDINAL officer ] : ' Her foray into the court - martial arena has brought particular accolades for her thoughtful and incisive contribution to the legal process ' . The report showed that [ that officer ] had acted not only as junior member on several courts - martial but also as assistant defending officer to an airman tried by a general court - martial . It appears that the comment may well have related to this second role . In any event the report makes no comment on any decision reached by [ that officer ] when sitting as a member of a court - martial . Indeed counsel for the [ ORG ] showed the ORG a number of statements from officers concerned with personnel matters who had read CARDINAL of DATE reports and had never seen mention of such a thing . That being so , again with the benefit of this more detailed information , I would not share the view of ORG in GPE v. the GPE that the independence and impartiality of officers sitting on courts - martial are compromised by the fact that they remain subject to the system of DATE reports .","For all these reasons I consider that those charged with administering the system of courts - martial have been at pains to put in place a series of practical safeguards which are designed to secure the independence and impartiality of those sitting on these courts . Nor is this surprising . There is not a little force in the point made by the [ ORG ] that , if service factors are to be seen as an aspect or function of the public interest , they will themselves require that the court - martial process should be , and should be seen to be , fair and impartial and , so far as possible , to achieve accurate results . Otherwise both servicemen and the public would lose confidence in it , with consequential effects on good order and discipline .","Having regard in particular to the additional information which was not before ORG , I would therefore hold that the safeguards built into the system are indeed such that no fair - minded and informed observer who had considered them would conclude that there was a real possibility that the courts - martial in these cases lacked independence or impartiality in this respect . In other words they were , objectively , independent and impartial . I would accordingly reject the Article CARDINAL challenge based on the role of the officer members . \u201d","DATE . Finally , Lord PERSON turned to the reviewing authority and to the finding in GPE that the role played by that authority constituted in itself a reason for finding that a court - martial had not been independent or impartial . Lord PERSON did not agree . Indeed , he noted that even the appellants before him had difficulty in supporting the ORG 's reasoning in PERSON on this point . He continued :","\u201c The reviewing authority is , admittedly , an unusual institution . It does not operate like an ordinary court and , at a certain level of abstract theory , its existence could seem to be inconsistent with the charge against an accused being determined by only a system of ' tribunals ' . That appears to be the way in which ORG has treated it . But if , as the court indicates , the issue can also be characterised as relating to the independence of the court - martial , I find it difficult to see how the existence of this body affects that independence . It might , of course , be different if there were any suggestion that the decisions of the courts - martial were influenced by the existence of the reviewing authority , for example , because they tended to convict more readily or to impose heavier sentences in the knowledge that the reviewing authority could always quash them . But [ the appellants ] made no such submission and there is nothing whatever in the information before the ORG that would support it . On the contrary , [ the appellants ] accepted that the provision for review could only be to the benefit , and not to the detriment , of someone who had been convicted . In particular , it could provide a quick and simple means of correcting a mistaken decision by a court - martial .","...","In reaching its conclusion on this point ORG was particularly concerned by the fact that the decision as to whether any substituted sentence was more or less severe than that imposed by the court - martial would have been left to the discretion of the reviewing authority . When making this observation the ORG does not appear to have been referred to , or to have had in mind , the coda to section CARDINAL(CARDINAL ) of the [ CARDINAL Act ] which establishes , as a matter of law , the relative positions of particular punishments in the hierarchy of punishments set out in the subsection and which deals specifically with how detention and imprisonment are to relate to one another . Particularly when these provisions are taken into account , it is hard to see how , in reality , there is likely to be any scope for the reviewing authority to exercise the kind of discretion that appears to have troubled ORG . In truth , counsel could refer to no case where any problem as to the relative severity of CARDINAL punishments had arisen . If , by chance , however , the reviewing authority were to go wrong on the point , the person affected could ask the appeal court for leave to appeal .","In all the cases under appeal except [ one ] , the reviewing authority did not intervene , but the appellants were granted leave to appeal to the [ ORG ] . Where they had other arguable grounds of appeal relating to conviction or sentence , the [ ORG ] dealt with them , as well as with LAW CARDINAL grounds , in their reasoned judgments . In these circumstances I am , with due respect to the decision of ORG in GPE v GPE , unable to see why the mere existence of the reviewing authority , or the reduction of [ a ] period of detention [ in CARDINAL case ] , should lead to the conclusion that the determination of the charges against the appellants was not reached by a ' tribunal ' that was ' independent and impartial ' for the purposes of Article CARDINAL . I would therefore reject the appellants ' Article CARDINAL argument based on the role of the reviewing authority . \u201d","In DATE the rate of acquittals in contested ORG courts - martial was PERCENT . The rate of acquittals in contested ORG trials has been :","DATE : PERCENT","DATE : PERCENT","DATE : PERCENT","DATE : PERCENT","DATE : PERCENT"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72732","languageisocode":"ENG","respondent":"AZE","branch":"ADMISSIBILITY","date":2006,"docname":"GULIYEV AND RAMAZANOV v. AZERBAIJAN","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicants , Mr PERSON and PERSON , are NORP nationals who , respectively , were born in DATE and DATE and live in GPE and PERSON . They were represented before ORG by Ms L. Claridge and PERSON , PERSON and PERSON of ORG , lawyers practising in GPE . The respondent Government was represented by PERSON , Agent of GPE before the ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants were members of the PERSON ( \u201c PERSON \u201d ) political party , which was in opposition to the ruling party . As it appears from the case file , at the time of the events in question , the applicants\u2019 party was not registered with ORG and , therefore , its activity was deemed illegal by the authorities .","The party had a regional office in PERSON . According to the applicants , on DATE some people related to the authorities removed from the office \u2019s entrance door the signboard featuring the party \u2019s name . On DATE several police officers allegedly arrived in the office , destroyed some of the assets in the LOC , forcefully expelled the party members from the LOC and sealed up the office door .","On DATE the police again unexpectedly arrived in the party \u2019s office in PERSON and interfered with the meeting which was held there at that time . The police explained that they had been called by persons in the neighbourhood complaining of the disturbance and noise coming from the office . The meeting participants objected to such interference . Following a dispute between the policemen and the meeting participants , the police took CARDINAL men to the police station for search and interrogation . After TIME of being held at the police station , all arrested were released except for the applicants and CARDINAL other person .","On DATE the investigation department of ORG instituted criminal proceedings against the applicants and issued a bill of indictment , accusing the applicants of resistance to the police and violation of public order . On DATE ORG ordered the applicants\u2019 detention on remand for DATE pending trial . On DATE ORG upheld the detention order .","On DATE the ORG convicted the applicants for hooliganism , including the breaking of the public order , assault and resistance to the police authorities . According to the applicants , although a number of witnesses had testified in their favour , the court relied only on testimonies of CARDINAL police officers , all of whom testified against the applicants . The court sentenced each applicant to a one year and QUANTITY months\u2019 term of imprisonment .","The applicants appealed against this judgment , complaining that the case had been fabricated , that the first - instance court had violated a number of procedural rules , and that it had failed to give legal assessment to the testimonies of the defence witnesses . On DATE ORG dismissed the applicants\u2019 request and upheld the district court \u2019s judgment . ORG found that the applicants\u2019 guilt was sufficiently proven by the witness testimonies admitted by the first - d the applicants\u2019 imprisonment sentence to a conditional sentence . The applicants were therefore released .","The applicants lodged a cassation appeal with ORG , seeking acquittal . On DATE ORG dismissed their appeal and upheld the lower courts\u2019 judgments .","Thereafter , based on a request by the President of ORG , the proceedings were reopened and the case was referred to the ORG of ORG . On DATE the ORG quashed ORG decision of DATE and the related judgment of ORG of DATE","On DATE , ORG re - examined the case . It reassessed the evidence and found that there had not been any significant inconsistencies in witness testimonies admitted by the first - instance court . As to the testimonies of witnesses in the applicants\u2019 favour , ORG noted that these witnesses were members of the applicants\u2019 political party and that , therefore , their testimonies were not trustworthy and were in any event refuted by the totality of evidence . ORG confirmed the ORG conviction and their conditional sentence of DATE and DATE . It also noted in its judgment that it was open to the applicants to file a cassation appeal with ORG in accordance with the domestic criminal procedure law . The applicants did not , however , make use of this possibility .","According to Article CARDINAL.CARDINAL.CARDINAL , a cassation appeal or cassation protest may be filed against judgments of appellate - instance courts . Article CARDINAL provides that , inter alia , convicted persons shall have a right to file a cassation appeal themselves or through their legal representative .","According to Article CARDINAL , depending on the substance of the complaints made before the cassation - instance court , the time - limit for lodging of the cassation appeal may constitute up to DATE from the date of delivery of the appellate - instance court \u2019s judgment .","Article CARDINAL provides that the cassation appeal must be submitted , in writing , directly to the cassation - instance court .","In accordance with Article CARDINAL , the cassation - instance court may quash or amend the appellate - instance court \u2019s judgment , if , inter alia , the latter has refused without justification to examine important evidence presented by a party to the case , breached the procedural rules for assessment of the evidence , delivered a verdict based on inadmissible evidence , and made a mistake in qualification of the crime ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85233","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2008,"docname":"TOMA, S. R. O. v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova","text":["The applicant , PERSON , PERSON . is a private company registered in GPE . It was represented before the ORG by Mr PERSON , a lawyer practising in B\u0159eclav . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a certain NORP brought a civil action against the ORG cooperative , the applicant \u2019s predecessor . By a judgment of CARDINAL DATE ORG ( okresn\u00ed soud ) dismissed NORP \u2019s action . On DATE ORG ( krajsk\u00fd soud ) upheld this judgment .","On an unspecified date in DATE the applicant company joined the proceedings as CARDINAL of successors of the ORG cooperative .","On DATE ORG ( Vrchn\u00ed soud ) , upon NORP \u2019s appeal on points of law ( dovol\u00e1n\u00ed ) quashed the judgments of the lower courts and sent the case back to ORG for further consideration .","On DATE ORG suspended the proceedings on the ground that other proceedings were pending before the same court which could have had an impact on the present proceedings . On DATE ORG quashed this decision and sent the case back to ORG which , on DATE , again decided to suspend the proceedings . On DATE ORG quashed this decision .","By a judgment of DATE ORG delivered a judgment on the merits of PERSON action . On DATE ORG decided on the applicant company \u2019s appeal .","The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG \u2019s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-89566","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF AZARYEV v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE , a town in LOC .","The applicant sued his employer , a regional department of LAW , for salary arrears .","On DATE the ORG awarded him against the Government MONEY ( RUB ) in respect of the arrears and RUB CARDINAL in respect of non - pecuniary damages . This judgment became binding on DATE .","In DATE and DATE the applicant sent enforcement papers to ORG , but in DATE ORG returned the papers , because they did not indicate the Ministry as the defendant and did not specify the financial source to be charged . The applicant asked ORG to clarify the judgment , but on DATE the court refused this request , because the judgment was clear as it stood . The judgment has not been enforced to date .","In the meantime , on the ORG \u2019s request , on DATE the ORG of ORG quashed the judgment in the part concerning the damages , and rejected this claim . The ORG found that the courts below had misinterpreted material law .","On DATE ORG gave CARDINAL other judgments in the applicant \u2019s favour . In the first judgment it adjusted the outstanding award of CARDINAL DATE for the cost of living and awarded RUB CARDINAL . This judgment became binding on DATE . In the second judgment the court awarded the applicant RUB CARDINAL in respect of salary arrears . This judgment became binding on CARDINAL DATE .","In DATE the applicant sent enforcement papers to ORG , but DATE the ORG returned the papers , because they did not specify the financial source to be charged . The applicant sent the enforcement papers to the bailiff \u2019s service , but in DATE the service returned the papers , because it was not authorised to enforce debts against the treasury .","Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86742","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2008,"docname":"FREIFRAU VON REHLINGEN AND OTHERS v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Eckart Klein;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych","text":["The CARDINAL applicants are PERSON , PERSON PERSON and their CARDINAL children : PERSON , and PERSON . They are all NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE .","The applicants were all represented before the ORG by the second applicant , Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON ORG , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","According to the initial regulation of LAW ( B\u00fcrgerliches Gesetzbuch ) of CARDINAL DATE , a child born in wedlock would obtain the surname of the father , which would also be the common family name . With the introduction of the LAW on the Reform of the Marital and Family Law ( Erstes Gesetz zur Reform des Ehe- und GPE ) of DATE , a married couple could choose either of the spouses\u2019 surnames as the family name . Their children would then obtain the same family name . If the parents were unable to choose a family name , the husband \u2019s surname would automatically become the family name according to the then applicable version of LAW of LAW . That provision was held to be unconstitutional and incompatible with the prohibition of discrimination against women ( LAW ) by ORG on DATE .","ORG ordered that , until the legislator had found a new regulation , couples who married after DATE of the publication of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames . In such an instance , their children were provisionally able to obtain a compound name composed of both surnames of the parents , in order to leave to the legislator the option to introduce the possibility to obtain such names .","On DATE , the Act on the Regulation of the Law of Family Names ( Gesetz zur Neuordnung des Familiennamensrechts ) came into force which corrected the above constitutional flaws . Article CARDINAL of LAW was amended by giving both spouses the possibility to keep their surnames . According to the henceforth relevant LAW ( replaced in DATE by LAW ) , a child would either obtain the surname of the father or the mother . Currently , if the parents can not agree , the competent family court will refer the right to determination to CARDINAL parent .","A compound name for the child was not provided for by LAW .","The first CARDINAL applicants married in DATE and decided to keep their birth names . After the birth of their children , they applied to ORG ) in order to obtain for their children the surnames \u201c PERSON \u201d and \u201c PERSON \u201d . Their applications were to no avail .","On DATE , they applied again to ORG in order to be considered for the period indicated by ORG in its judgment of DATE during which compound names were provisionally permitted . Moreover , they argued that the current law as provided for by the Act on the Regulation of the Law of Family Names was unconstitutional in as far as it precluded compound names for children . Their application was dismissed by ORG which found that both children had obtained the last name \u201c LOC \u201d in accordance with the then applicable LAW of LAW .","On DATE , ORG dismissed the first CARDINAL ORG claim to order ORG to register their children with compound names . It held that , both under the present law and under the law that had been in force before the judgment of ORG in DATE , their children were not entitled to obtain compound names . ORG did not find any reasons for the unconstitutionality of the present law , nor had any concerns been raised by academics and legal scholars in that connection . In its judgment of DATE , ORG had indicated a provisional period in which compound names could be obtained only with respect to those marriages that were concluded after the date of the publication of the judgment .","ORG found that that judgment was plain and unambiguous in this respect , and the applicants were clearly not concerned by the provisional period as they had married DATE before the judgment was published .","On DATE , ORG dismissed the first CARDINAL ORG appeal against the decision of ORG of DATE . The first CARDINAL applicants\u2019 further appeal was dismissed by ORG on DATE . The court found that LAW was constitutional and neither violated the right to a family ( LAW ) nor the right to educate one \u2019s own children ( LAW ) . A positive obligation on the legislator to provide the possibility for children to obtain a compound name could not be derived from ORG judgment of DATE . On the contrary , ORG had granted the legislator a wide margin of appreciation when setting the law on family names , and the provisional period in which compound names could be obtained had only been introduced in order to allow the legislator the choice of all existing options within that margin .","The first applicant lodged a constitutional complaint against the LAW on the Regulation of the Law of Family Names in DATE . On DATE , ORG refused to admit that complaint .","On DATE , ORG refused to admit the constitutional complaint ( CARDINAL BvR CARDINAL ) of all CARDINAL applicants lodged in DATE against the above decisions by referring to a leading judgment of DATE ( see \u201c Relevant domestic law and practice \u201d below ) in which the constitutionality of LAW had been confirmed .","The applicant children \u2019s younger siblings bear a compound name , but are neither born , nor registered in the birth register , in GPE .","\u201c \u00a7 CARDINAL Spouses should designate a common family name ( marital name ) . The spouses shall use the marital name which they have designated . If the spouses do not designate a family name , they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage .","\u00a7 CARDINAL By declaration to the registrar , the spouses may designate , as their marital name , the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name . ( ... )","\u00a7 CARDINAL A spouse whose name does not become the marital name may , by declaration to the registrar , attach , before or after the marital name , his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name . This shall not apply if the marital name consists of CARDINAL name . If the name of CARDINAL of the spouses consists of CARDINAL name , CARDINAL of these names may be attached . ( ... ) \u201d","\u201c \u00a7 CARDINAL If the parents do not have a marital name but if they have joint parental responsibility , they shall , by declaration to the registrar , designate the surname that the father or the mother has at the time of the declaration as the birth name of the child . ( ... )","\u00a7 CARDINAL If parents make no designation within DATE of the birth of the child , the family court shall transfer the right of designation to CARDINAL of the parents . Subsection ( CARDINAL ) applies mutatis mutandis . The court may impose a time - limit on the parent for the exercise of the right of designation . If , after the time - limit has expired , the right of designation had not been exercised , the child shall be given the name of the parent to whom the right of designation was transferred . \u201d","Under NORP law , authentic compound names are permitted only in very specific circumstances . For example , compound names may be retained if they were used prior to state regulation of the law governing names . Moreover , pursuant to LAW PERSON , compound names may come into being when persons with surnames which are highly common in GPE such as \u201c PERSON \u201d or \u201c PERSON \u201d ( so - called PERSON ) add another name to render their family name easier to distinguish . Compound names created in this way may be passed on to children .","In a leading judgment of DATE , ORG held , by CARDINAL votes to CARDINAL , the former version of LAW of LAW ( which is identical to LAW of the current version of LAW ) to be constitutional . In particular , ORG found that the provision neither constituted a violation of the right to a family ( LAW ) , the right to educate one \u2019s own children ( LAW ) nor the children \u2019s right to protection of their personality rights as guaranteed by LAW and CARDINAL \u00a7 CARDINAL of LAW .","ORG considered that , once children would be allowed to obtain compound names , the number of surnames could exponentiate with each future generation . The next generation would already be able to obtain a surname comprised of CARDINAL names . Such growing \u201c chains of surnames \u201d would not only be impracticable , they would also be to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification . LAW would not prohibit the legislator from reducing the number of possible surnames to avoid such \u201c name chains \u201d in order to secure the function of the surnames of future generations .","ORG considered that a different way of avoiding \u201c name chains \u201d would have been to allow compound names , but to restrict the number of surnames to CARDINAL . This method , however , would prevent parents who already bear a compound name to give their children a compound name comprised of both GPE surnames , or obtain such a surname themselves . A person with a compound name could no longer keep his or her surname after marriage and add the surname of his or her partner , as currently provided for by LAW . Therefore , the introduction of an option to let children obtain compound names would at the same time reduce the choice of surnames for those who already bear a compound name . Such a situation , in which CARDINAL fundamental right restricts another , would consequently require a balancing of interests , which the legislator had done when introducing the former version of LAW of LAW ( now LAW ) . ORG stated that the legislator had had several options to balance the above interests . The option which the legislator chose was thereby neither required nor prohibited by LAW .","Lastly , ORG found that the former version of LAW of LAW did not violate the prohibition of discrimination on grounds of sex as guaranteed in LAW . If each spouse kept his or her surname after marriage , married couples could choose CARDINAL of their surnames as the surname for their children . LAW CARDINAL of the NORP Civil Code reduced the possible options to give their children a surname , but this concerned spouses of both sexes alike .","The fact that married couples with different surnames were in practice more likely to choose the husband \u2019s surname for their children was not considered to suggest a different finding . Even though this could possibly indicate a widespread affirmation of traditional marriage patterns , LAW could not be interpreted as containing a positive obligation on the ORG to introduce a GPE right to choose a compound name for their children . In any case , such a regulation had only minor effects on the ORG \u2019s positive obligation to secure equality of the sexes as contained in the second sentence of LAW of LAW .","That children could still obtain a compound name under certain circumstances , particularly in cases in which CARDINAL parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name . In both instances , children were only allowed to obtain either the surname of the mother or the father ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68490","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2005,"docname":"KOMANICKY v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE ORG delivered its judgment in application No . CARDINAL filed by the applicant . The case related to the alleged unfairness of domestic proceedings concerning the lawfulness of the applicant 's dismissal from a job in which the final decision had been given on DATE . In its judgment the ORG found that ( i ) there had been a violation of LAW in respect of the procedure followed by the national courts when examining the applicant 's action , ( ii ) that it was not necessary to examine separately the applicant 's complaint under LAW that the dismissal of his action had been arbitrary and ( iii ) that it was not necessary to rule on the complaint under LAW . The ORG obliged the respondent ORG to pay the applicant ORG CARDINAL,CARDINAL in respect of non - pecuniary damage and LAW in respect of costs and expenses . The ORG 's judgment became final on DATE . Subsequently the respondent Government paid the sum due to the applicant . ORG has not yet concluded its examination of issues relating to the execution of that judgment .","On DATE the applicant filed a complaint under LAW . He claimed that ORG should quash the ordinary courts ' decisions relating to his dismissal from a job as the ORG had found the relevant proceedings to be contrary to LAW Subsequently the applicant also requested that his dismissal should be declared void and that a job corresponding to his previous position should be offered to him . He also claimed CARDINAL NORP korunas as just satisfaction .","On DATE ORG rejected the complaint for lack of jurisdiction . It held that LAW contained no provision permitting to examine the legal consequences of a judgment delivered by ORG concluding that a person 's rights under the LAW had been violated by NORP authorities or to re - open the relevant domestic proceedings on the basis of such a finding . In the absence of any legal basis , a complaint under LAW of the LAW could not serve as a means of ensuring re - examination of a case in which a final decision had been given notwithstanding ORG finding that the domestic courts had in such proceedings violated the human rights of the person concerned .","The decision was taken in camera and it indicated that it was adopted by ORG . It was signed by the president of that chamber .","Article CARDINAL of the LAW , as in force since DATE , reads as follows :","\u201c CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .","When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person 's rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .","In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . \u201d ...","Under LAW ) , a party to civil proceedings can challenge a final decision by means of a request for re - opening of the proceedings where ( i ) facts , decisions or proofs exist which , for reasons beyond his or her control , the party was unable to use in the original proceedings provided that they can bring about a more favourable decision for such a party , ( ii ) evidence can be taken which could not be taken in the original proceedings provided that this can result in a more favourable decision for the party concerned and ( iii ) the decision against a party was given in the context of a criminal offence committed by a judge .","Article CARDINAL(CARDINAL ) provides that a request for re - opening of proceedings is to be filed within DATE from the moment when the party concerned learned or could have availed himself \/ herself of the reason for the request .","Under paragraphs CARDINAL of LAW , a request for re - opening of proceedings can not be filed DATE from the final effect of the decision in question with the exception of cases where a civil court granted a right to a person on the basis of a criminal court 's judgment and where such a judgment was subsequently quashed in accordance with the criminal law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22308","languageisocode":"ENG","respondent":"MKD","branch":"ADMISSIBILITY","date":2002,"docname":"TRAJKOVSKI v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":1,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant , Mr PERSON , is a national of the Former GPE , who was born in DATE and lives in GPE . He was represented before the Court by PERSON PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","Under the relevant legislation of ORG ) at the material time the banks were under a duty to deposit foreign currency funds in ORG .","The applicant had savings in foreign currency in a ORG owned bank - PERSON before the dissolution of the SFRY .","In DATE Komercijalna Banka paid an average DATE interest of CARDINAL for savings in ORG . DATE it paid an average DATE interest of CARDINAL for savings in GPE ( US$ ) .","In DATE ORG passed a decision to the effect that the withdrawal of funds from foreign currency savings accounts was possible only in instalments ( see relevant domestic law ) . The decision was repealed in DATE .","On DATE the Former GPE declared its independence . On CARDINAL DATE the Former GPE adopted its LAW and LAW under which the laws from the SFRY remained in force except for the laws regulating the organisation and the competence of ORG .","On an unspecified date in DATE the applicant \u2019s bank refused his request to allow him to withdraw his savings in foreign currency on the basis of the aforementioned decisions of ORG .","On DATE the applicant \u2019s funds were transferred to a new account in the same bank which was also frozen . The applicant had ORG CARDINAL,CARDINAL.CARDINAL and US$ MONEY in his new bank account ; and MONEY ( ORG ) and small amount of NORP Francs ( CHF ) , pounds sterling ( ORG ) and NORP Schillings ( ORG ) in his old bank account . Both bank accounts bore the same number .","On DATE the Former GPE introduced its own currency . The ORG reserves in foreign currency were GPE $ MONEY . There were CARDINAL , CARDINAL frozen bank accounts . The debt towards the holders of the accounts amounted to MONEY .","On DATE the ORG of the Former GPE adopted the LAW on Undertaking the Citizens\u2019 Foreign Currency Deposits ( hereinafter referred to as LAW ) concerning the personal funds put on foreign currency bank accounts which had been deposited in ORG . Under LAW undertook the obligation to pay back the respective funds provided that they had been put in savings accounts in the banks with headquarters on its territory . The citizens were entitled to draw a limited amount out of their savings accounts . Government bonds were to be issued for the remaining sum .","On DATE the applicant lodged a civil claim with ORG against the bank claiming back his money with the penalty interest . On DATE his civil claim was dismissed on the grounds that under the relevant SFRY regulation the banks were obliged to deposit the natural ORG funds in foreign currency in ORG , and that the withdrawal of the funds from the savings accounts was possible only for the purchase of apartments , or business LOC .","On DATE ORG adopted the LAW on the Guarantee by GPE and on the Funds and ORG Deposited in DATE and DATE ( hereinafter referred to as LAW ) which repealed LAW . LAW provided that the withdrawal of funds from the frozen foreign currency savings accounts was only possible for the purposes set forth in law ( see relevant domestic law ) .","On DATE the applicant appealed to ORG . He complained , inter alia , that funds put on frozen savings account should have borne the same interest , as thought they were put on a notice account , i.e. , deposited on a contractual basis without the right to withdraw for a certain period of time .","On DATE the ORG quashed ORG judgment , as it found , inter alia , that the court had not based its decision on the legislation adopted by the Former GPE and had not replied to the applicant \u2019s arguments in respect of the payable interest rate . The applicant \u2019s case was remitted for examination to ORG .","On DATE ORG found that all savings accounts in foreign currency had been frozen by the relevant decisions of ORG . The claims of the holders of the frozen savings accounts had been regulated by LAW of the Former GPE because the country was facing a difficult economic situation . The court rejected the applicant \u2019s claim on the ground that he had not wished to withdraw funds from his savings account in order to purchase an apartment , business LOC , or for other purposes set out by law .","As regards the interest rate , the court held that since the applicant had not concluded a contract with the bank for putting funds in a notice account he could not have received the same interest payable to the holders of such accounts .","On DATE ORG dismissed the applicant \u2019s appeal . It held , inter alia , that the applicant \u2019s allegations that the bank should have paid penalty interest were ill - founded , as the accounts had been frozen by virtue of law .","On DATE ORG upheld the lower courts\u2019 decisions . It held that the applicable law in the applicant \u2019s case had been the DATE Act with its amendments . Finally , it concluded that the lower courts had rightly rejected the applicant \u2019s action since his request to withdraw money was not made for CARDINAL of the purposes provided by the LAW .","In DATE the ORG reserves in foreign currency had been GPE $ MONEY , whereas the debt towards the account holders had decreased by DEM CARDINAL,CARDINAL,CARDINAL .","On DATE the ORG adopted the LAW on the Manner of the Re - payment of ORG Deposits for which the [ Former GPE ( hereinafter referred to QUANTITY ) ( see relevant domestic law ) which repealed LAW . Under LAW the applicant \u2019s funds on his account were converted into euros . Their amount was QUANTITY . On DATE the applicant withdrew MONEY from his account . He was given Government bonds for the remaining sum .","Following the ORG \u2019s decision of CARDINAL DATE on the early buy out of the bonds which were mature in DATE , the applicant received MONEY .","Section CARDINAL provided as follows :","\u201c CARDINAL . A contract on a monetary deposit is concluded when the bank obliges itself to accept and the depositor obliges himself or herself to deposit in the bank a certain amount of money .","NORP By this contract the bank has the right to dispose of the deposited money and the obligation to return it in accordance with conditions determined in the contract . \u201d","Section CARDINAL , as far as relevant , provided as follows :","\u201c Unless otherwise agreed , ... the depositor has the right to dispose of the whole or a part of the balance of the deposit at any moment . \u201d","Section CARDINAL , as far as relevant , provided as follows :","\u201c CARDINAL . Domestic natural and legal persons may keep foreign currency on a foreign currency savings account or foreign currency savings deposit at an authorised bank and use it for making payments abroad , in accordance with the provisions of this PERSON .","...","NORP The foreign currency on foreign currency savings accounts or foreign currency savings deposits are guaranteed for by the SFRY . \u201d","Section CARDINAL , as far as relevant , provided as follows :","\u201c CARDINAL . Domestic natural persons may sell convertible currencies to an authorised bank or other authorised exchange office or they may deposit them in a foreign currency savings account or foreign currency savings deposit with an authorised bank .","Foreign currency kept in a foreign currency savings account or a foreign currency savings deposit may be used by domestic natural persons for payment of imported goods or services for his or her personal needs and the needs of close family members in accordance with the federal law governing foreign trade operations .","...","Foreign currency referred to in paragraph CARDINAL of this Article may be used by domestic natural persons for the purchase of convertible bonds , for endowments for scientific and humanitarian purposes in GPE and for payment of a life insurance with an insurance company in GPE .","The National Bank of GPE shall regulate the operation of foreign currency savings accounts and foreign currency savings deposits of domestic and foreign natural persons . \u201d","Section CARDINAL , as far as relevant , provided as follows :","\u201c CARDINAL . ORG is obliged , following a request of an authorised bank , to receive into deposit foreign currency funds which has effectively been deposited by domestic and foreign natural persons in foreign currency savings accounts or foreign currency savings deposits after the entry into force of this PERSON .","NORP The methods and conditions for the deposition and withdrawal of foreign currency at the deposit of ORG shall be regulated by ORG on the proposal of ORG . \u201d","\u201c CARDINAL . On the basis of the deposited foreign currency ... the national banks shall authorise credits to banks in dinars in an amount equal to the deposited foreign currency , which shall be established on the basis of the average DATE exchange rate applicable at the end of the respective DATE when the foreign currency is deposited .","NORP When withdrawing foreign currency from the deposit , the bank is obliged to repay the national bank the used dinar credit in an amount equal to the amount of foreign currency withdrawn from the deposit , which shall be established on the basis of the exchange rate as applied when the same foreign currency was deposited . \u201d","Paragraph CARDINAL of the Decision confirmed the purposes for which foreign currency could be used , as prescribed in the amended LAW .","Paragraph CARDINAL stated as follows :","\u201c Domestic natural persons may withdraw from their accounts foreign money , cheques and letters of credit for travelling to a foreign country in accordance with applicable regulations . \u201d","The DATE Decision was amended on DATE and CARDINAL DATE ( ORG . CARDINAL and CARDINAL ) by the addition of certain provisions , of which paragraph CARDINAL established the following rules on advance announcement of withdrawals :","\u201c Authorised banks shall execute orders to pay to domestic natural persons foreign currency deposited in their foreign currency accounts ... if such persons previously announced to the authorised banks , within the following time - limits , that they will use foreign currency in the following amounts :","an amount not exceeding DEM CARDINAL : within DATE for the first withdrawal ... and within DATE for any subsequent withdrawal ... ;","an amount not exceeding DEM CARDINAL,CARDINAL : within DATE for the first withdrawal ... and within DATE for any subsequent withdrawal ... ;","an amount not exceeding DEM CARDINAL,CARDINAL : within DATE ; and","an amount not exceeding DEM CARDINAL,CARDINAL : within DATE . \u201d","Section CARDINAL , as far as relevant , provided as follows :","\u201c A bank is an independent self - governing financial institution , which administers deposits , credits and other banking business in accordance with the law . \u201d","Section CARDINAL stated as follows :","\u201c CARDINAL . A bank conducts its activities independently with a view to making profit based on the principles of liquidity , security and profitability .","Banks and other financial institutions are holders of all rights , obligations and responsibilities in legal payment operations with respect to both social and other funds at their disposal which they use in accordance with the nature and purpose of financial funds .","Banks and other financial institutions decide independently on the manner and form of organisation and association as well as on their activities in accordance with market conditions and profit - making , pursuant to the provisions of this and other laws . \u201d","Section CARDINAL , as far as relevant , provided as follows :","\u201c The liability of banks shall be settled out of the bankruptcy estate in the following order :","claims of individuals ;","claims of ORG , the ORG and other creditors who are not the founders of the bank ;","claims of the founders of the bank . \u201d","DATE , as far as relevant , provides as follows :","\u201c ...","No person may be deprived of his property or property rights , save [ for the protection of ] public interest as determined by law .","NORP If property is expropriated , or the property rights are restricted a just compensation not lower than the property \u2019s market value is guaranteed ... \u201d","LAW provides as follows :","\u201c ...","Laws and other regulations may not have a retroactive effect , save if they are more favourable to the citizens . \u201d","LAW and DATE provides that the existing federal laws of the former GPE shall be in force in the Former GPE with the exception of laws regulating the organisation and competence of the NORP federal organs .","Article CARDINAL provides that all federal laws which are inconsistent with the NORP LAW shall be amended accordingly within DATE from DATE the LAW has been promulgated .","Under LAW the Former GPE was the guarantor for the payment of domestic and foreign currency bank savings and was under a duty to provide funds .","Under LAW the Former GPE was guarantor for the payment of funds put on foreign currency savings accounts on its territory which had been transferred to ORG by DATE .","Under section CARDINAL the banks were not allowed to convert funds from the frozen savings accounts in another currency . The funds yielded the interest , as determined by ORG .","Under LAW in order to insure the liquidity of the ORG funds all foreign currency savings accounts were frozen and the funds could be withdrawn , or spent only for the purposes set out by law .","Under sections CARDINAL and CARDINAL the ORG was to provide funds for the re - payment of the debt .","Under section CARDINAL the account holders were allowed to withdraw the equivalent in domestic currency of DEM DATE from their frozen savings accounts provided that they had not had sufficient funds to meet their DATE needs .","Under section CARDINAL account holders were allowed to withdraw some funds from their savings accounts in foreign currency to meet medical , wedding , funerary and school expenses , or to re - pay long - term bank credits , to pay taxes , custom duties , taxes concerning the transfer of shares , to purchase ORG - owned agricultural land , machines for agriculture and for other purposes set out by law . ORG","Under section CARDINAL account holders were allowed to withdraw some funds from the frozen savings accounts in order to meet their medical and school expenses overseas , or purchase plane tickets .","Under LAW in accordance with the ORG \u2019s decision the ORG would advance a credit of PERCENT of the amount paid by the banks to the holders of the frozen accounts .","In DATE and DATE the payable interest rate for the frozen savings in ORG was CARDINAL , and in DATE and DATE it was CARDINAL .","In DATE the payable interest rate for the frozen savings in CARDINAL was CARDINAL ; in DATE it was DATE ; in DATE it was CARDINAL and in DATE it was CARDINAL .","Section CARDINAL provides , inter alia , that the communal apartments may be purchased by denars received from the buy out of the funds from the frozen savings accounts .","It was possible to sell funds from the frozen savings accounts to persons who wished to purchase communal apartments or business LOC . Their price ( not lower than PERCENT ) was determined in accordance with the market demand .","Section CARDINAL provides that the state - owned shares in companies , banks and other state - owned securities may be purchased with funds drawn from the frozen foreign currency savings accounts .","Section CARDINAL provides that the law shall set out the manner and the procedure for the payment of funds put on foreign currency savings accounts which were frozen and for which the guarantor is the ORG .","Under section CARDINAL the banks shall convert funds from the frozen foreign currency savings accounts into euros in accordance with ORG exchange rate .","Under LAW the holders of the foreign currency savings accounts may withdraw PERCENT of funds from each of their savings accounts as from DATE provided that the amount of their funds exceeds CARDINAL .","Under LAW the bonds are negotiable and their value is expressed in TIME .","Under sections CARDINAL , DATE and CARDINAL the bonds shall be bought out in national currency twice a year within DATE period of time , as from DATE . The interest shall be paid off twice a year , as from DATE . The applicable exchange rate shall be the average exchange rate of ORG exchange list published on DATE of payment , or within DATE from DATE the bond becomes mature .","Under LAW the bonds may be used to pay off securities and concessions , to obtain shares in ORG - owned companies , to pay long - term rents , to purchase communal apartments , agricultural and construction land and to obtain shares in accordance with the Reconstruction of LAW .","Under section CARDINAL the ORG may buy out the bonds at any time in accordance with the ORG \u2019s decision ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110436","languageisocode":"ENG","respondent":"POL","branch":"COMMITTEE","date":2012,"docname":"CASE OF SIMONOV v. POLAND","importance":4,"conclusion":"No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)","judges":"George Nicolaou;Ledi Bianku;Vincent A. De Gaetano","text":["The applicant was born in DATE and currently lives in ORG .","On DATE the applicant was arrested on suspicion of several counts of fraud and incitement to murder committed in an organised criminal group .","On DATE ORG remanded him in custody , relying on the reasonable suspicion that he had committed the offences in question . It attached importance to the serious nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant . In this connection the court noted that the applicant had admitted to having committed some of the offences of which he had been suspected , including incitement to murder . It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might go into hiding . As regards the latter , the court relied on the fact that he did not have a permanent place of residence in GPE and that he had already been hiding from the police . Finally , the court underlined that the applicant was a member of an organised criminal group and that some other members of that group were still at large which increased the risk that a detainee , if released , might obstruct the proceedings .","The applicant \u2019s appeal against the detention order , likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him , were unsuccessful .","NORP In DATE the applicant had a heart attack and had to be hospitalised CARDINAL times during DATE .","In the course of the investigation , the applicant \u2019s detention was extended on several occasions , namely on DATE ( to CARDINAL DATE ) , DATE ( to DATE ) and on an unspecified subsequent date . In their detention decisions the courts repeatedly relied on the original grounds given for the applicant \u2019s detention underlining the complexity of the case and the substantial volume of evidence to be examined . They also found no grounds warranting the applicant \u2019s release from detention as provided for by LAW . In particular , the courts observed that it resulted from medical reports that the applicant could be treated within a penitentiary facility .","On DATE ORG lodged a bill of indictment with ORG . The applicant was charged with an incitement to murder as well as several counts of thefts and extortions committed while acting as a leader of an organised criminal group . The bill of indictment comprised numerous charges brought against several defendants .","On DATE the case was transferred to ORG .","In an opinion of CARDINAL DATE experts from the cardiology institute of ORG in GPE declared the applicant fit to participate in the proceedings , though limiting the duration of the hearings .","During the court proceedings the courts further extended the applicant \u2019s detention , namely on DATE ( to DATE ) , on unspecified subsequent dates and DATE ( to CARDINAL DATE ) . The courts repeated the grounds previously given for the applicant \u2019s continued detention .","On DATE the ORG gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years\u2019 imprisonment .","The applicant and the Prosecutor appealed .","On DATE ORG decided that the applicant be released from custody and placed under police supervision . The court also barred the applicant from leaving the country .","It appears that the appellate proceedings against the applicant are still pending .","The relevant domestic law and practice concerning the imposition of pre - trial detention ( tymczasowe aresztowanie ) , the grounds for its extension , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are stated in the ORG \u2019s judgments in the cases of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE and PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-3"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102888","languageisocode":"ENG","respondent":"POL","branch":"COMMITTEE","date":2011,"docname":"CASE OF GUT v. POLAND","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)","judges":"J\u00e1n \u0160ikuta;Lech Garlicki;Vincent A. De Gaetano","text":["The applicant was born in DATE and lives in LOC .","On DATE the applicant was arrested on charges of arson and uttering threats . On an unknown later date he was indicted before ORG .","DATE and DATE the applicant was detained on remand .","On DATE ORG convicted him as charged and sentenced him to CARDINAL years\u2019 imprisonment .","On DATE the applicant appealed against his conviction .","On DATE ORG quashed the judgment and remitted the case .","DATE and DATE ORG held CARDINAL hearings . On several occasions the applicant who was duly summoned , refused to appear at hearings . However , the court proceeded with the trial in his absence .","On DATE the ORG convicted the applicant as charged and sentenced him to CARDINAL years\u2019 imprisonment .","On DATE ORG again quashed the judgment and remitted the case .","On DATE the ORG again convicted the applicant as charged .","On DATE the applicant filed his appeal against this judgment . It appears that the proceedings are pending before ORG .","On DATE the applicant lodged complaints with ORG under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) . The applicant sought a ruling that the length of the proceedings before ORG had been excessive and an award of just satisfaction .","On DATE ORG gave a decision and dismissed the applicant \u2019s complaint .","On DATE ORG dismissed yet another complaint under LAW lodged by the applicant . The court considered that there had been no significant delays in the proceedings .","The applicant was also involved in several other sets of criminal and civil proceedings , in particular , proceedings concerning assaulting a judge and contempt of court . The proceedings were terminated respectively on DATE and DATE by ORG .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG \u2019s decisions in cases of ORG v. GPE no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22419","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2002,"docname":"D.K. v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr GPE , is a NORP national living in PERSON . The respondent Government are represented by Mr P. Vr\u0161ansk\u00fd , their Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant lodged an action for protection of his good name and reputation with ORG s\u00fad ) . He claimed that his registration as a collaborator of the former secret police in the files kept by ORG had no justification . The applicant further requested that the entry concerning his person should be deleted from the files .","On DATE ORG asked ORG to submit its memorial in the action . The defendant complied with the request on DATE .","On DATE the applicant submitted his observations in reply . He extended his action and asked ORG to find that he had not been an agent of the former ORG .","On DATE the applicant requested ORG to decide on his action .","On DATE the applicant complained to the president of ORG that there had been no progress in his case . On DATE the president of ORG admitted that there had been delays in the proceedings due to the transfer of the judge dealing with the case to another court .","On DATE the applicant lodged a petition with ORG ( \u00dastavn\u00fd s\u00fad ) alleging that his case had not been heard within a reasonable time .","On DATE the applicant complained about undue delays in the proceedings to the president of ORG ( PERSON s\u00fad ) .","On DATE the ORG held the first hearing in the case .","On DATE the applicant submitted documentary evidence to ORG .","On DATE ORG found that the applicant \u2019s constitutional right to have his case examined without undue delays had been violated . It noted , in particular , that ORG had failed to decide on the action for protection of the applicant \u2019s personal rights within DATE after its introduction as required by LAW ( CARDINAL ) of LAW .","On DATE the ORG held another hearing and on DATE it dismissed the applicant \u2019s action . The judgment stated that the relevant facts of the case were secret and that the evidence available indicated that the action was manifestly ill - founded .","On DATE the applicant appealed to ORG . He alleged that ORG had not established all relevant facts of the case .","On DATE ORG ( Najvy\u0161\u0161\u00ed s\u00fad ) transferred the case to the ORG .","On DATE the ORG dismissed the applicant \u2019s request for an exemption from the obligation to pay court fees . The applicant appealed .","On DATE the applicant informed the ORG that he wished to withdraw his action against ORG lodged on DATE and requested that he be exempted from the obligation to pay court fees .","On DATE the ORG quashed the first instance judgment and discontinued the proceedings on the ground that the applicant had withdrawn his action concerning his claims that ( i ) he had not been an agent of ORG , ( ii ) he had been erroneously entered in the files of ORG as a collaborator of the latter and ( iii ) the defendant be ordered to delete the entry concerning the applicant in the files of the former ORG . ORG further upheld ORG decision on the court fees of DATE and ordered the applicant to pay the defendant \u2019s fees . The decision became final on DATE .","On DATE the applicant complained to the president of ORG that the appellate court had failed to decide on his claim that he had not been an agent of the former ORG . The applicant alleged , with reference to his earlier submissions , that he had not withdrawn this part of his action and asked the court to proceed with it without delay .","On DATE the president of the ORG replied to the applicant that the proceedings had been discontinued on DATE and that there had been no undue delays in them .","On DATE ORG found unjustified the applicant \u2019s complaint about delays in the proceedings .","On DATE and on DATE the applicant filed a petition to ORG . He alleged that he had not withdrawn his claim submitted on DATE in extension of his original action . ORG had failed to proceed with that part of the action and thus caused delays in the proceedings .","On DATE ORG dismissed the petition . It held that it was evident from ORG decision of DATE that the appellate court had interpreted the applicant \u2019s submission of DATE as concerning his action as a whole and that the proceedings had been discontinued in respect of all his claims . The applicant \u2019s expectation that the ORG would proceed with the examination of CARDINAL of his claims after the delivery of the decision of CARDINAL DATE was therefore ill - founded . The applicant \u2019s constitutional right to a hearing without delays could not have been therefore violated as a result of ORG failure to proceed with the case after DATE . ORG decision further stated that it had been open to the applicant to seek redress by means of an appeal on points of law after he had learned from the appellate court \u2019s decision that his submission of DATE had been misinterpreted .","Pursuant to LAW ( f ) of LAW , an appeal on points of law may be lodged against a decision of the court of appeal if a party to the proceedings was prevented from acting before the court due to a wrong court procedure . LAW ( CARDINAL ) provides that an appeal on points of law can be lodged within DATE after the appellate court \u2019s decision has become final .","In accordance with ORG case - law , the possibility of filing an appeal on points of law pursuant to LAW ( f ) of LAW extends to cases when the merits of an action have not been examined as a result of an erroneous action of the court ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95089","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF GONCHAROVA AND OTHER \u201cPRIVILEGED PENSIONERS\u201d CASES v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants are pensioners who live in LOC . Before retirement they used to work in hazardous industry . They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the GPE \u2019s district and town courts .","In DATE the courts held for the applicants and ordered the pension authority to recalculate the pensions . The courts based their finding on ORG . In DATE these judgments became binding and were executed .","On the pension authority \u2019s request , in DATE the district and town courts quashed their judgments due to discovery of new circumstances . The courts found , in particular , that the judgments had ignored the interpretation of ORG given by ORG in DATE and DATE .","NORP The applicants\u2019 cases were remitted for a rehearing and eventually dismissed ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99334","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2010,"docname":"ERCANLAR OTOMOT\u0130V T\u0130c. A.\u015e.  v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicant , PERSON . DATE , is a joint stock company registered in GPE and located in GPE . It was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a public company , the T\u00fcrkiye S\u00fct PERSON ( the ORG dairy producer , hereafter referred to as the \u201c SEK \u201d ) , decided to partially expropriate a plot of land ( parcel no . CARDINAL ) owned by the applicant company and located in ORG , GPE .","On DATE the applicant company was officially notified of the ORG 's expropriation decision by a notice served through the notary public . It was indicated in the notice that expropriation compensation in the amount of MONEY ( TRL ) had been deposited in the applicant company 's name in a blocked bank account at the Alsancak Branch of ORG , a ORG - run bank .","The applicant subsequently sought the annulment of the expropriation . On DATE ORG rejected the applicant 's request and on DATE ORG upheld the administrative court 's decision .","On an unspecified date the applicant company commenced proceedings for additional compensation . On DATE the \u0130zmir ORG ordered that the amount of compensation be increased by TRL CARDINAL . The judgment became final on CARDINAL DATE , neither of the parties having appealed . On CARDINAL DATE the additional expropriation was deposited in the same account at ORG in the applicant company 's name .","The applicant company subsequently lodged an action with ORG for the annulment of the parcel plan pertaining to the expropriated plot of land . On DATE ORG annulled the parcel plan as requested . On CARDINAL DATE ORG upheld the judgment of the administrative court . A new parcel plan was prepared on DATE , which was also annulled by ORG on DATE . It appears that there is presently no parcel plan in respect of the land in question .","On DATE the SEK commenced proceedings before ORG for the compulsory registration of the title of the expropriated land in its name . Following proceedings which lasted for DATE and involved CARDINAL examinations , on DATE ORG granted the suit . On DATE it rejected the applicant company 's rectification request . ORG held that the pending parcel plan pertaining to the relevant land did not preclude the registration of its title in the expropriating company 's name .","In the meantime , on DATE the applicant company lodged an action for recovery of the expropriated land in accordance with LAW . CARDINAL ) . They argued that the public interest justifying expropriation in the present case had been lost as the land had not been put to use in accordance with the initial purpose of the measure . On DATE ORG dismissed the applicant 's request , holding that the conditions for restitution of expropriated land under LAW had not materialised . On DATE ORG upheld this judgment and on DATE it rejected the applicant company 's rectification request .","On DATE the SEK was merged with another public company , thereby losing its legal personality . Upon this merger , on CARDINAL DATE the applicant company applied for the reopening of the proceedings concerning the recovery and the compulsory registration of the land . They argued that the land was no longer required for public purposes as the expropriating public company had ceased to exist . On DATE ORG rejected the applicant 's request by CARDINAL separate judgments ( cases nos . PERSON and CARDINAL PERSON ) , holding that the conditions for reopening the proceedings had not been satisfied . According to the information in the case file , both judgments became final on DATE .","On DATE the applicant company sent a letter to PERSON to inquire whether the expropriation compensation , together with the additional amount , had been deposited with the bank and , in the affirmative , whether they were entitled to have access to the money . On DATE they sent another letter to the bank , requesting it to expedite the reply . It is alleged that the bank never sent a written reply but orally informed the applicant company that they had no records regarding the requested information . The applicant company accordingly brought an action seeking a declaratory judgment ( tespit davas\u0131 ) on DATE before ORG to establish whether the expropriation compensation had been deposited in a blocked account at ORG in its name or whether any payment had been otherwise made to it in compensation for the expropriation . The bank verified during the proceedings that the expropriation compensation had been deposited in a blocked account in the applicant company 's name at their ORG , but no attempt had been made to collect it . On DATE the firstinstance court dismissed the applicant company 's case , as the statements received from the bank had made it unnecessary to render a declaratory judgment . On DATE ORG upheld the judgment of the first - instance court and on DATE it rejected the rectification request ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91203","languageisocode":"ENG","respondent":"MDA","branch":"ADMISSIBILITY","date":2009,"docname":"NEDELCOV v. MOLDOVA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by PERSON NORP PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr Vladimir Grosu .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was a member of a gardening association and , on account of his membership , occupied a parcel of land on which he cultivated fruit and vegetables for the needs of his family .","On an unspecified date he was excluded from the association on grounds which are not known to the ORG . According to the statute of the association , disputes between the association and its members were to be resolved by ORG .","The applicant lodged an application with ORG and challenged the decision of the association ; however , his application was rejected on procedural grounds .","The applicant contested ORG decision and on DATE obtained a final judgment ordering ORG to examine his application on the merits . An enforcement warrant was issued on DATE and the judgment was enforced on DATE , when ORG examined the applicant \u2019s application on the merits and adopted a decision in his favour .","The applicant received ORG decision by mail on DATE .","The applicant did not inform the ORG about the enforcement of the judgment in his favour and it was only through the Government \u2019s observations that the ORG learned about the enforcement of the judgment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114137","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2012,"docname":"TRUBI\u0106 v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["NORP The applicant , Mr QUANTITY Trubi\u0107 , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON K. Vilajtovi\u0107 , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant , a policeman at the time , was returning to GPE from an official assignment in GPE , where he had been with CARDINAL other police officers PERSON , ORG When crossing the border , travelling in a regular civilian coach , they were checked by customs officials who found ORG cartons of cigarettes and CARDINAL bottles of liquor allegedly belonging to the police officers .","On DATE and DATE the police questioned the applicant , PERSON , ORG about the above event . The police also questioned the coach drivers , GPE and GPE , and a customs officer , GPE In addition , on DATE the applicant , T.P. , ORG provided further statements concerning the circumstances in which they had bought the cigarettes and liquor .","On DATE the GPE First - Instance Disciplinary Board of ORG ( ORG unutarnjih poslova PERSON , PERSON pravnih i kadrovskih poslova , Odsjek prvostupanjskog disciplinskog sudovanja GPE ) instituted disciplinary proceedings against the applicant on the ground that on DATE he had attempted to smuggle CARDINAL cartons of cigarettes and QUANTITY of liquor from GPE to GPE .","A hearing was held on DATE before ORG of ORG ( ORG unutarnjih poslova PERSON , PERSON disciplinski sud GPE ) in the presence of the applicant and his counsel . The applicant pleaded not guilty for smuggling goods although he admitted that he had brought certain cigarettes and alcohol from GPE but had not known the quantity or that it had been prohibited .","At the hearing the police reports on the witness statements of the coach drivers GPE and GPE and officer GPE were read out together with other evidence from the case file . Defence counsel asked for the written records of the oral statements from other police officers also to be admitted in evidence , which was allowed by the court . The applicant and his defence counsel made no objection as to the manner in which the evidence had been taken . However , defence counsel questioned the veracity of the statement given by customs officer GPE","On DATE the Zagreb First - Instance Disciplinary Court of ORG found that the applicant had attempted to smuggle the above - mentioned goods and sentenced him to a suspended sentence of dismissal from his duties .","Against the above decision , the Director of the Police ( Ravnatelj policije ) and the applicant lodged appeals on DATE and CARDINAL DATE respectively , with ORG ( ORG unutarnjih poslova PERSON , PERSON pravnih i kadrovskih poslova , Odsjek drugostupanjskog disciplinskog sudovanja GPE ) . In his appeal , the applicant argued that the GPE First - Instance Disciplinary Court had misinterpreted some of the evidence and that the sentence was disproportionate to the offence .","On DATE ORG of ORG upheld the findings on the applicant \u2019s disciplinary liability but amended the sentence and ordered the applicant \u2019s dismissal .","The applicant lodged an action with ORG ( Upravni sud PERSON ) against the above decision on DATE , complaining about the outcome of the proceedings before the lower administrative bodies . He also argued that the witnesses should have been heard by the disciplinary court .","NORP On DATE the applicant was indicted in ORG ( PERSON kazneni sud u GPE ) on charges of smuggling cigarettes and liquor on to the territory of GPE .","On DATE ORG dismissed the applicant \u2019s action and upheld the decision of ORG , on the ground that there had been no flaws in the procedure or findings of the administrative bodies . The relevant part of the decision reads :","\u201c After the assessment of the impugned decision [ of the second - instance disciplinary body ] , this court considers that all the relevant facts have been correctly established , that the relevant law was applied correctly and that there have been no flaws in the procedure .","It was undoubtedly established that on the relevant date , after he had finished his official assignment of deportation of foreign citizens to GPE and when entering the territory of GPE at the \u201c GPE \u201d border control check - point , the plaintiff had been controlled by the custom officers who had found that he had tried to smuggle CARDINAL cartons of cigarettes and QUANTITY of liquor with a foreign label to GPE , without having these goods declared to the custom service , although he had known that the import of that amount of such goods had not been allowed , namely that it had been limited . All these relevant facts were established based on the statements of the custom officers , the coach drivers and the plaintiff himself and therefore the complaint concerning the establishment of the relevant facts should be dismissed .","...","The substance of the plaintiff \u2019s action did not raise any issue as regards the lawfulness of the impugned decision , and therefore the action was dismissed as illfounded pursuant to section CARDINAL \u00a7 CARDINAL of LAW . \u201d","The applicant lodged a constitutional complaint with ORG on DATE ( ORG ) , reiterating the same arguments he had brought before ORG .","The Constitutional Court declared the applicant \u2019s constitutional complaint inadmissible as manifestly ill - founded on DATE . The relevant part of the decision reads :","\u201c ORG fully endorsed the findings and application of the relevant law by the second - instance disciplinary body and , by the impugned judgment , it dismissed the applicant \u2019s action against the second - instance decision .","The Constitutional Court finds that the complaints raised in the constitutional complaint essentially represent repetition of the complaints raised before ORG , without any substantiation of the alleged violations of LAW .","The applicant failed to show that ORG , in its procedure or decision , had violated the human rights and fundamental freedoms set out in the LAW or that it had arbitrarily interpreted the relevant domestic law . Therefore , the Constitutional Court finds that this case does not raise any issue of the applicant \u2019s human rights . Accordingly , there is no issue on which ORG should decide . \u201d","This decision was served on the applicant \u2019s counsel on DATE .","On DATE ORG acquitted the applicant of the criminal charges of smuggling cigarettes and liquor on to the territory of GPE .","The relevant provision of LAW ( ORG , ORG nos . DATE , CARDINAL , CARDINAL\/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL ) provides :","\u201c ( CARDINAL ) In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . \u201d","The relevant provisions of LAW ( Zakon o policiji , ORG no . CARDINAL ) read as follows :","Disciplinary action shall be taken against police officers responsible for breaches of work discipline . \u201d","\u201c Other than those provided in the rules governing the conduct of civil servants , the following shall particularly be considered a serious breach of work discipline :","inappropriate conduct during or outside TIME of service ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95201","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF \u00dcRPER AND OTHERS v. TURKEY","importance":3,"conclusion":"Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award","judges":"Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["At the material time the applicants were the owners , executive directors , editors - in - chief , news directors and journalists of CARDINAL DATE newspapers published in GPE : PERSON , PERSON , PERSON and PERSON . The publication of all CARDINAL newspapers was regularly suspended , pursuant to section CARDINAL(CARDINAL ) of PERSON no . ORG ( the Prevention of Terrorism Act ) , by various Chambers of ORG , DATE and DATE , for periods ranging from DATE in respect of various news reports and articles . The impugned publications were deemed to be propaganda in favour of a terrorist organisation , the ORG \/ ORG - GEL , as well as the approval of crimes committed by that organisation and its members .","In the first case against ORG on DATE , the trial judge considered that the content of certain reports and articles contained elements of propaganda , the approval of terrorist crimes and had identified officials who risked terrorist attack , contrary to section CARDINAL(CARDINAL ) of PERSON no . ORG . Their content thus exceeded the permissible limits of LAW . Moreover , the offences had not been limited to a single issue of the newspaper , but had been continuous . Consequently , he was authorised by section CARDINAL(CARDINAL ) to suspend the publication and distribution of the periodical for DATE .","In the case against ORG on DATE , the newspaper was suspended for DATE , not by virtue of section CARDINAL(CARDINAL ) of PERSON no . ORG , but because its owners , journalists and content were the same as those of PERSON , whose publication and distribution had been suspended for DATE by a court decision of CARDINAL DATE .","Neither the applicants nor their representative participated in these ex parte procedures , and their written objections to the suspension orders were dismissed . Consequently , the orders were executed .","The applicant PERSON , the owner of ORG , was prosecuted under sections DATE ) and ( CARDINAL ) and CARDINAL(CARDINAL ) of PERSON no . ORG , as well as LAW of LAW , for disseminating propaganda in favour of the aforementioned organisation , approving crimes committed by that organisation and its members , and identifying officials with anti - terrorist duties as targets , in respect of various articles published in their newspaper ( case no . GPE ) . PERSON was convicted and fined CARDINAL new NORP liras ( TRY ) ( MONEY ( ORG ) ) .","The applicant PERSON , the executive director of ORG and PERSON , was similarly prosecuted . Her first case concerning the former newspaper was disjoined from that of PERSON PERSON . Her second case ( no . PERSON ) involved another applicant , ORG , the owner of PERSON and ORG . They were charged under sections CARDINAL , CARDINAL ) and ( CARDINAL ) and CARDINAL(CARDINAL ) of PERSON no . ORG , as well as ORG CARDINAL and CARDINAL of the Criminal Code .","ORG was prosecuted on CARDINAL other occasions on similar charges ( case nos . CARDINAL\/CARDINAL , CARDINAL and CARDINAL ) . Another applicant , PERSON , the owner and executive director of PERSON , was prosecuted for the same offences under sections CARDINAL ) and CARDINAL(CARDINAL ) of PERSON no . ORG and LAW .","According to the information in the case file , all these prosecutions are still pending at first instance , except for that against PERSON G\u00fcrb\u00fcz , which is apparently still pending before ORG .","Article CARDINAL of the LAW of GPE reads as follows :","\u201c The press is free and shall not be censored . The establishment of a publishing company shall not be subject to prior permission or the deposit of a financial guarantee .","The ORG shall take the necessary measures to ensure freedom of the press and freedom of information .","As regards restrictions on freedom of the press , Articles CARDINAL and CARDINAL of the LAW are applicable .","Anyone who writes or prints any news or articles which threaten the internal or external security of the ORG or the indivisible integrity of the ORG with its territory and nation , which are aimed at inciting offences , riot or insurrection , or which refer to classified ORG secrets , and anyone who prints or transmits such news or articles to others for the above purposes , shall be held responsible under the law governing these offences . Distribution may be suspended as a preventive measure by the decision of a judge or , in the event that delay is deemed prejudicial , by the competent authority designated by law . The authority suspending distribution shall notify a competent judge of its decision within TIME . The order suspending distribution shall become null and void unless upheld by a competent judge within TIME .","No ban shall be placed on the reporting of events except by a judge 's decision designed to ensure the proper functioning of the judiciary , within the limits specified by law .","Periodical and non - periodical publications may be seized by the decision of a judge in the event of an ongoing investigation into or prosecution of offences prescribed by law and , in situations where a delay could endanger the indivisible integrity of the ORG with its territory and nation , national security , public order or public morals , and for the prevention of an offence , by order of the competent authority designated by law . The authority issuing the order to confiscate shall notify a competent judge of its decision within TIME . The order to confiscate shall become null and void unless upheld by the competent court within TIME .","The general common provisions shall apply to the seizure and confiscation of periodicals and non - periodicals for the purposes of criminal investigation and prosecution .","Publication of periodicals published in GPE may be temporarily suspended by order of the courts in the event of a criminal conviction on account of their containing material which undermines the indivisible integrity of the ORG with its territory and nation , the fundamental principles of the LOC , national security and public morals . Any publication which is clearly a continuation of a suspended periodical shall be prohibited and shall be seized following a decision by a competent judge . \u201d","The relevant provisions of LAW ( Law no . ORG ) , amended by PERSON no . DATE , which entered into force on DATE , read as follows :","\u201c CARDINAL . It shall be an offence , punishable by a term of imprisonment of DATE , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person 's ... identity is divulged , provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .","It shall be an offence , punishable by a term of imprisonment of CARDINAL to DATE , to print or publish declarations or leaflets emanating from terrorist organisations .","...","NORP If any of the offences defined in the paragraphs above are committed through the press or the media , the owners and editors - in - chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to CARDINAL days ' imprisonment . However , the maximum limit of this punishment shall be the equivalent of DATE for editors - in - chief .","Periodicals whose content openly encourages the commission of offences within the framework of the activities of a terrorist organisation , approves of the offences committed by a terrorist organisation or its members or constitutes propaganda in favour of the terrorist organisation may be suspended for DATE as a preventive measure by decision of a judge or , if a delay is detrimental , on an instruction from a public prosecutor . The public prosecutor shall notify the judge of such instruction within TIME . If the judge does not approve the decision within TIME , the instruction to suspend publication shall become null and void . \u201d","On DATE the former President of GPE lodged a case with ORG ( case no . CARDINAL\/CARDINAL ) challenging the validity of section CARDINAL(CARDINAL ) of PERSON no . ORG . It had been argued , inter alia , that this section had created an unconstitutional penalty . On DATE ORG dismissed the case ( decision no . CARDINAL ) .","\u201c Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of DATE . Where this offence is committed through the press or the media , the sentence shall be increased by CARDINAL . Moreover , the owners and editors - in - chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to CARDINAL ' imprisonment . However , the maximum limit of this punishment shall be the equivalent of DATE for editors - in - chief . \u201d","The relevant provisions of LAW ( Law no . DATE ) read as follows :","\u201c ( CARDINAL ) A person who abets commission of an offence shall be liable to a term of imprisonment of DATE if the offence is punishable by an aggravated life sentence and DATE where the offence is punishable by a life sentence . Punishment is reduced by CARDINAL in all other circumstances . However , in the latter case the punishment can not exceed DATE .","( CARDINAL ) A person is deemed to have abetted commission of an offence in the following circumstances :","( a ) Encouragement to commit an offence ... \u201d","\u201c Any person who approves of an offence committed , or praises a person on account of an offence he or she has committed , shall be liable to a term of imprisonment of DATE . \u201d","\u201c Where CARDINAL of the offences proscribed by Articles CARDINAL - CARDINAL is committed through the press or the media , the sentence shall be increased by CARDINAL . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102757","languageisocode":"ENG","respondent":"GRC","branch":"COMMITTEE","date":2011,"docname":"CASE OF TSIVELIS v. GREECE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Anatoly Kovler;Elisabeth Steiner;Sverre Erik Jebens","text":["The applicant was born in DATE and he is currently imprisoned in GPE .","On DATE criminal complaints were brought against him by ORG for procuring and repeated rape .","In DATE , on an unspecified date , ORG of the GPE","ORG decided to prosecute the applicant and remitted the case to ORG ( decision no . CARDINAL\/CARDINAL ) .","On DATE ORG convicted the applicant and sentenced him to DATE imprisonment ( judgment no . DATE ) .","On DATE the applicant lodged an appeal with ORG challenging the First Instance court 's findings and its evaluation of the evidence .","By judgment dated CARDINAL DATE ORG dismissed the applicant 's allegations ( judgment no . DATE ) .","On an unspecified date the applicant lodged an appeal on points of law with ORG . The appeal was set for hearing on DATE . It transpires from the case file that these proceedings are still pending ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23071","languageisocode":"ENG","respondent":"GRC","branch":"ADMISSIBILITY","date":2003,"docname":"GALANIS v. GREECE","importance":4,"conclusion":"Inadmissible","judges":"Fran\u00e7oise Tulkens","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr S. Tsakyrakis , a lawyer practising in GPE . The Government were represented by PERSON , Senior Adviser , ORG , and PERSON , ORG , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant graduated from ORG of PERSON in DATE . ORG were , at the time , the only institutions training the future teachers of elementary schools and all graduates were eligible for appointment to the public school system . After graduation the applicant moved to GPE where he worked as a teacher of NORP language at the elementary school of GPE from DATE untill DATE .","In DATE he returned with his wife and CARDINAL children to live permanently in GPE . On DATE he applied to ORG and Religion asking to be appointed as a teacher to a NORP public school . The appointments were made according to a seniority list comprising all persons having the necessary qualifications , mainly a degree from a ORG . The immediate result of his application should have been his registration in the list , so that he could be appointed when his turn would come .","On DATE the Ministry rejected his application and returned his documents because the applicant was a NORP \u2019s Witness . ORG indicated that according to an opinion of ORG , it was prohibited for persons believing in religions or dogmas other than ORG to be appointed as teachers .","DATE Law CARDINAL\/CARDINAL was enacted and explicitly provided in section CARDINAL that persons believing in religions or dogmas other than ORG were eligible for appointment as teachers . Immediately after the enactment of that law the applicant resubmitted his application asking to be registered in the list of DATE . However , the Ministry registered him on the DATE list .","By DATE all those who were on the DATE list had been appointed , but not those who were on the DATE list . By DATE the applicant realised that , with the pace the appointments were made , he would not be appointed at all . In effect , PERSON CARDINAL\/CARDINAL provided that no one over DATE could be appointed as a teacher and the applicant would become DATE in DATE .","On DATE he applied to ORG asking to be considered as registered in the DATE list , which would have resulted in his immediate appointment .","On DATE his application was rejected on the ground that Law CARDINAL\/CARDINAL had no retroactive effect , so the applicant was not eligible for registration on the DATE list .","On DATE the applicant applied to ORG asking it to quash the decision rejecting his application .","By judgment CARDINAL of DATE ORG dismissed the application . It held that the authorities had correctly applied Law DATE which introduced an entirely new provision regarding the appointment of non - NORP teachers . Law DATE was not intended to interfere with the seniority lists of the past . Any possible violations of LAW or LAW on religious freedom occurred in DATE and should have been challenged at that time .","On DATE the applicant appealed to ORG . He maintained that PERSON CARDINAL\/CARDINAL did not introduce an entirely new provision but instead tried to remedy the illegal practice of the authorities to exclude all non - NORP from employment in the public education system . If it were to be construed as not having retroactive effect , this would constitute by itself a new and direct violation of the LAW and the LAW .","By judgment CARDINAL of DATE ORG dismissed the applicant \u2019s appeal on the ground that the refusal of the authorities in DATE did not constitute an executory administrative act , but it was a mere repetition of the initial refusal of DATE and the subsequent registration in the DATE list and as such could not be subjected to judicial review . In particular , ORG held that : \u201c Since the applicant challenged neither the initial refusal of his request nor his subsequent registration in the seniority list of DATE , which contained an omission to register him in the list of DATE , the final decision of the Minister of ORG ... has not an executory character and the applicant \u2019s action against it must be dismissed as inadmissible ... \u201d .","LAW CARDINAL\/CARDINAL provides as follows :","\u201c CARDINAL . Primary education and kindergarten teachers of another dogma or religion who are candidates for appointment will be appointed and placed in public primary schools with CARDINAL teaching posts ... as the case may be , provided that they meet the qualifications of ORG CARDINAL and CARDINAL of Law DATE .","In the cases of the above - mentioned paragraph , these teachers will not teach the course of religion , except to students believing in the same dogma or religion , provided that the said course is included in the curriculum .","The teachers of paragraph CARDINAL may also be appointed to primary schools and kindergartens with CARDINAL teaching post , if they are students of the same dogma or religion attending that school or kindergarten . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61853","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2004,"docname":"CASE OF VON HANNOVER v. GERMANY","importance":1,"conclusion":"Violation of Art. 8;Just satisfaction reserved","judges":"Ireneu Cabral Barreto","text":["The applicant , who is the eldest daughter of Prince Rainier III of GPE , was born in DATE . Her official residence is in GPE but she lives in the GPE area most of the time .","As a member of Prince PERSON \u2019s family , the applicant is the president of certain humanitarian or cultural foundations , such as ORG or ORG of ORG , and also represents the ruling family at events such as ORG or the opening of the International Circus Festival . She does not , however , perform any function within or on behalf of the ORG of GPE or any of its institutions .","Since DATE the applicant has been trying \u2013 often through the courts \u2013 in a number of NORP countries to prevent the publication of photos about her private life in the tabloid press .","The photos that were the subject of the proceedings described below were published by the ORG publishing company in the NORP magazines PERSON and ORG , and by the ORG publishing company in the NORP magazine ORG .","These photos show her with the actor PERSON at the far end of a restaurant courtyard in FAC . The first page of the magazine refers to \u201c The most tender photos of her romance with PERSON ( \u201c PERSON z\u00e4rtlichsten PERSON mit Vincent \u201d ) and the photos themselves bear the caption \u201c These photos are evidence of the most tender romance of our time \u201d ( \u201c NORP Fotos sind der Beweis f\u00fcr die z\u00e4rtlichste PERSON unserer Zeit \u201d ) .","The first photo shows her on horseback with the caption \u201c PERSON and the blues . Her life is a novel with innumerable misfortunes , says the author PERSON ( \u201c PERSON die GPE . PERSON ein LOC unz\u00e4hligen PERSON , sagt Autor Roig \u201d ) .","The second photo shows her with her children PERSON and PERSON .","The photos are part of an article entitled \u201c I do n\u2019t think I could be a man \u2019s ideal wife \u201d ( \u201c PERSON , dass ich die ideale PERSON \u201d ) .","The first photo shows her canoeing with her daughter PERSON , the second shows her son PERSON with a bunch of flowers in his arms .","The third photo shows her doing her shopping with a bag slung over her shoulder , the fourth with PERSON in a restaurant and the fifth alone on a bicycle .","The sixth photo shows her with PERSON and her son PERSON .","The seventh photo shows her doing her shopping at the market , accompanied by her bodyguard .","The article is entitled \u201c Pure happiness \u201d ( \u201c Vom einfachen GPE \u201d ) .","These photos show the applicant on DATE in Z\u00fcrs \/ Arlberg . The accompanying article is entitled \u201c PERSON ... a woman returns to life \u201d ( \u201c PERSON ... eine PERSON kehrt ins GPE \u201d ) .","CARDINAL photos show her with Prince PERSON DATE PERSON at a horse show in FAC . The accompanying article is entitled \u201c The kiss . Or : they are not hiding anymore \u201d ( \u201c PERSON . PERSON : jetzt verstecken sie sich GPE \u201d ) .","CARDINAL other photos show her leaving her house in GPE with the caption \u201c Out and about with PERSON in GPE \u201d ( \u201c PERSON unterwegs in GPE \u201d ) .","These photos show the applicant on the front page with Prince PERSON DATE PERSON and on the inside pages of the magazine playing tennis with him or both putting their bicycles down .","The sequence of photos published in ORG magazine ( issue no . CARDINAL ) shows the applicant at ORG , dressed in a swimsuit and wrapped up in a bathing towel , tripping over an obstacle and falling down . The photos , which are quite blurred , are accompanied by an article entitled \u201c Prince PERSON DATE played fisticuffs and Princess PERSON fell flat on her face \u201d ( \u201c PERSON DATE haute auf den NORP und PERSON fiel auf die NORP \u201d ) .","On DATE the applicant sought an injunction in ORG ( ORG ) against any further publication by","the ORG publishing company of the first series of photos on the ground that they infringed her right to protection of her personality rights ( ORG ) , guaranteed by LAW and CARDINAL \u00a7 CARDINAL of LAW ) , and her right to protection of her private life and to the control of the use of her image , guaranteed by sections CARDINAL et seq . of ORG ( Kunsturhebergesetz \u2013 \u201c LAW \u201d \u2013 see paragraphs CARDINAL below ) .","In a judgment of CARDINAL DATE , ORG granted the application only in respect of the distribution of the magazines in GPE , in accordance with the rules of private international law ( section CARDINAL of LAW to LAW in ORG ) read in conjunction with LAW .","With regard to the distribution of the magazines in GPE , however , ORG reiterated that it was NORP law which applied . Under section PERSON ) no . CARDINAL of LAW , the applicant , as a figure of contemporary society \u201c par excellence \u201d ( eine \u201c absolute \u201d Person der GPE ) , had to tolerate this kind of publication .","ORG held that she had failed to establish a legitimate interest ( berechtigtes ORG ) justifying an injunction against further publication because , where figures of contemporary society \u201c par excellence \u201d were concerned , the right to protection of private life stopped at their front door . All the photos of the applicant had been taken exclusively in public places .","The applicant appealed against that judgment .","In a judgment of DATE , ORG ( Oberlandesgericht ) dismissed the applicant \u2019s appeal and set aside the injunction against subsequent publications in GPE .","Indeed , like ORG , ORG found that the applicant was a contemporary figure \u201c par excellence \u201d and therefore had to tolerate publication without her consent of the photos in question , which had all been taken in public places . Even if the constant hounding by photographers made her daily life difficult , it arose from a legitimate desire to inform the general public .","The applicant appealed on points of law against that judgment .","In a judgment of DATE , ORG ( ORG ) allowed the applicant \u2019s appeal in part , granting her an injunction against any further publication of the photos that had appeared in ORG magazine ( issue no . CARDINAL of DATE ) showing her with PERSON in a restaurant courtyard on the ground that the photos interfered with her right to respect for her private life .","ORG held that even figures of contemporary society \u201c par excellence \u201d were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos . Outside their home , however , they could not rely on the protection of their privacy unless they had retired to a secluded place \u2013 away from the public eye ( in eine \u00f6rtliche PERSON ) DATE where it was objectively clear to everyone that they wanted to be alone and where , confident of being away from prying eyes , they behaved in a given situation in a manner in which they would not behave in a public place . Unlawful interference with the protection of that privacy could therefore be made out if photos were published that had been taken secretly and\/or by catching unawares a person who had retired to such a place . That was the position here , where the applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the clear aim of being out of the public eye .","However , ORG dismissed the remainder of her appeal on the ground that , as a figure of contemporary society \u201c par excellence \u201d , the applicant had to tolerate the publication of photos in which she appeared in a public place even if they were photos of scenes from her daily life and not photos showing her exercising her official functions . The public had a legitimate interest in knowing where the applicant was staying and how she behaved in public .","NORP The applicant then appealed to ORG ( Bundesverfassungsgericht ) , submitting that there had been an infringement of her right to the protection of her personality rights ( LAW read in conjunction with LAW ) .","In the applicant \u2019s submission , the criteria established by ORG regarding the protection of privacy in respect of photos taken in public places did not effectively protect the free development of the personality , be it in the context of private life or family life . Those criteria were so narrow that in practice the applicant could be photographed at any time outside her home and the photos subsequently published in the media .","Given that the photos were not used genuinely to inform people , but merely to entertain them , the right to control the use of one \u2019s image in respect of scenes from private life , which had been recognised by the case - law of ORG , prevailed over the right \u2013 also guaranteed by LAW to freedom of the press .","In a landmark judgment of DATE , delivered after a hearing , ORG allowed the applicant \u2019s appeal in part on the ground that the publication of the CARDINAL photos in issues nos . CARDINAL and CARDINAL of ORG magazine , dated DATE and CARDINAL DATE , featuring the applicant with her children had infringed her right to the protection of her personality rights guaranteed by LAW and CARDINAL \u00a7 CARDINAL of LAW , reinforced by her right to family protection under LAW . It referred the case to ORG on that point . However , ORG dismissed the applicant \u2019s appeal regarding the other photos .","The relevant extract of the judgment reads as follows :","\u201c The appeal is well - founded in part .","...","II .","The decisions being appealed do not fully satisfy the requirements of LAW read in conjunction with LAW .","The provisions of sections CARDINAL and CARDINAL of the PERSON [ GPE \u2013 Copyright Act ] on which the civil courts based their decisions in the present case are , however , compatible with LAW .","Under LAW of LAW , general personality rights are guaranteed only within the framework of the constitutional order . The provisions concerning the publication of photographical representations of persons listed in sections CARDINAL and CARDINAL of the PERSON are part of that constitutional order . They derive from an incident which at the time caused a scandal ( photos of GPE on his deathbed ... ) and from the ensuing politico - legal debate sparked off by this incident ... , and aim to strike a fair balance between respect for personality rights and the community \u2019s interest in being informed ...","Under LAW , first sentence , of the PERSON , pictures can only be disseminated or exposed to the public eye with the express approval of the person represented . Pictures relating to contemporary society are excluded from that rule under section PERSON ) of the PERSON ... Under section CARDINAL ) of the PERSON , however , that exception does not apply where the dissemination interferes with a legitimate interest of the person represented . The protection by degrees under these rules ensures that they take account of the need to protect the person being represented as well as the community \u2019s desire to be informed and the interest of the media which satisfy that desire . That much has already been established by ORG ...","...","( b ) In the instant case regard must be had , in interpreting and applying sections CARDINAL and CARDINAL of the PERSON , not only to general personality rights , but also to the freedom of the press guaranteed by LAW , second sentence , of LAW in so far as the provisions in question also affect those freedoms .","...","The fact that the press fulfils the function of forming public opinion does not exclude entertainment from the functional guarantee under LAW . The formation of opinions and entertainment are not opposites . Entertainment also plays a role in the formation of opinions . It can sometimes even stimulate or influence the formation of opinions more than purely factual information . Moreover , there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions , and to disseminate information in the form of entertainment or mix it with entertainment ( \u2018 infotainment\u2019 ) . Consequently , many readers obtain information they consider to be important or interesting from entertaining coverage ...","Nor can mere entertainment be denied any role in the formation of opinions . That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement , relaxation , escapism or diversion . Entertainment can also convey images of reality and propose subjects for debate that spark off a process of discussion and assimilation relating to philosophies of life , values and behaviour models . In that respect , it fulfils important social functions ... When measured against the aim of protecting press freedom , entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of application of fundamental rights ...","The same is true of information about people . Personalisation is an important journalistic means of attracting attention . Very often it is this which first arouses interest in a problem and stimulates a desire for factual information . Similarly , interest in a particular event or situation is usually stimulated by personalised accounts . Additionally , celebrities embody certain moral values and lifestyles . Many people base their choice of lifestyle on their example . They become points of crystallisation for adoption or rejection and act as examples or counter - examples . This is what explains the public interest in the various ups and downs occurring in their lives .","As regards politicians , this public interest has always been deemed to be legitimate from the point of view of transparency and democratic control . Nor can it in principle be disputed that it exists in respect of other public figures . To that extent it is the function of the press to show people in situations that are not limited to specific functions or events and this also falls within the sphere of protection of press freedom . It is only when a balancing exercise has to be done between competing personality rights that an issue arises as to whether matters of essential interest for the public are involved and treated seriously and objectively or whether private matters , designed merely to satisfy the public \u2019s curiosity , are being disseminated ...","( c ) NORP The decision of ORG largely stands up to an examination of its compatibility with the constitutional rules .","( aa ) ORG can not be criticised under constitutional law for assessing the conditions of application [ Tatbestandsvoraussetzungen ] of section PERSON ) no . CARDINAL of the PERSON according to the criterion of the community \u2019s interest in being informed and deciding on that basis that the photos showing the appellant outside her representative function in the Principality of GPE were lawful .","Under section PERSON ) no . CARDINAL of the PERSON , the publication of pictures portraying an aspect of contemporary society are exempted from the obligation to obtain the consent of the person concerned within the meaning of section CARDINAL of the PERSON . Judging from the drafting history of the LAW ... and from the meaning and purpose of the words used , the provision in question takes into consideration the community \u2019s interest in being informed and the freedom of the press . Accordingly , the interpretation of this element [ Tatbestandsmerkmal ] must take account of the interests of the public . Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public : they require the prior consent of the person concerned . The other element that is affected by fundamental rights , that of a \u2018 legitimate interest\u2019 for the purposes of section FAC ) of the PERSON , concerns DATE and this must be stressed at the outset \u2013 figures of contemporary society and can not therefore take sufficient account of the interests of the freedom of the press if these have previously been neglected when the circle of the persons concerned was defined .","It is in keeping with the importance and scope of the freedom of the press , and not unreasonably restrictive of the protection of personality rights , that the concept of contemporary society referred to in section PERSON ) no . CARDINAL of the PERSON should not only cover , in accordance with a definition given by the courts , events of historical or political significance , but be defined on the basis of the public interest in being informed ... The kernel of press freedom and the free formation of opinions requires the press to have , within legal limits , sufficient margin of manoeuvre to allow it to decide , in accordance with its publishing criteria , what the public interest demands , and the process of forming opinion to establish what amounts to a matter of public interest . As has been stated , entertaining coverage is no exception to these principles .","Nor should ORG be criticised for including in the \u2018 domain of contemporary society\u2019 , within the meaning of section PERSON ) no . CARDINAL of the PERSON , pictures of people who have not only aroused public interest at a certain point on the occasion of a particular historical event but who , on account of their status and importance , attract the public \u2019s attention in general and not just on the odd occasion . Account should also be taken in this regard of the fact that , compared to the situation at the time LAW was passed , increased importance is given DATE to illustrated information . The concept of a \u2018 figure of contemporary society \u201c par excellence \u201d \u2019 [ \u2018 ORG Person der GPE ] , often employed in this respect in the case - law and legal theory , does not conclusively derive from statute or LAW . If , as was done by ORG and ORG , it is interpreted as a shortened expression designating people whose image is deemed by the public to be worthy of respect out of consideration for the people concerned , it is irreproachable from the point of view of constitutional law at least as long as a balancing exercise is carried out between the public \u2019s interest in being informed and the legitimate interests of the person concerned .","General personality rights do not require publications that are not subject to prior consent to be limited to pictures of figures of contemporary society in the exercise of their function in society . Very often the public interest aroused by such figures does not relate exclusively to the exercise of their function in the strict sense . It can , on the contrary , by virtue of the particular function and its impact , extend to information about the way in which these figures behave generally \u2013 that is , also outside their function \u2013 in public . The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question , who are often regarded as idols or role models , convincingly tallies with their behaviour on their official engagements .","If , on the other hand , the right to publish pictures of people considered to be figures of contemporary society were to be limited to their official functions , insufficient account would be taken of the public interest properly aroused by such figures and this would , moreover , favour a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of socio - political life , having regard to the function of role model of such figures and the influence they exert . The press is not , however , allowed to use every picture of figures of contemporary society . On the contrary , section CARDINAL ) of the PERSON gives the courts adequate opportunity to apply the protective provisions of LAW read in conjunction with LAW ...","( bb ) In theory the criteria established by ORG for interpreting the concept of \u2018 legitimate interest\u2019 used in section CARDINAL ) of the PERSON are irreproachable from the point of view of constitutional law .","According to the decision being appealed , the privacy meriting protection that must also be afforded to \u2018 figures of contemporary society \u201c par excellence \u201d \u2019 presupposes that they have retired to a secluded place with the objectively recognisable aim of being alone and where , confident of being alone , they behave in a manner in which they would not behave in public . ORG accepted that there had been a breach of sections CARDINAL and CARDINAL of the PERSON where this type of picture was taken secretly or by catching the person unawares .","The criterion of a secluded place takes account of the aim , pursued by the general right to protection of personality rights , of allowing the individual a sphere , including outside the home , in which he does not feel himself to be the subject of permanent public attention \u2013 and relieves him of the obligation of behaving accordingly DATE and in which he can relax and enjoy some peace and quiet . This criterion does not excessively restrict press freedom because it does not impose a blanket ban on pictures of the DATE or private life of figures of contemporary society , but allows them to be shown where they have appeared in public . In the event of an overriding public interest in being informed , the freedom of the press can even , in accordance with that case - law authority , be given priority over the protection of the private sphere ...","ORG properly held that it is legitimate to draw conclusions from the behaviour adopted in a given situation by an individual who is clearly in a secluded spot . However , the protection against dissemination of photos taken in that context does not only apply where the individual behaves in a manner in which he would not behave in public . On the contrary , the development of the personality can not be properly protected unless , irrespective of his behaviour , the individual has a space in which he can relax without having to tolerate the presence of photographers or cameramen . That is not in issue here , however , since , according to the findings on which ORG based its decision , the first of the conditions to which protection of private life is subject has not been met .","Lastly , there is nothing unconstitutional , when balancing the public interest in being informed against the protection of private life , in attaching importance to the method used to obtain the information in question ... It is doubtful , however , that the mere fact of photographing the person secretly or catching them unawares can be deemed to infringe their privacy outside the home . Having regard to the function attributed to that privacy under constitutional law and to the fact that it is usually impossible to determine from a photo whether the person has been photographed secretly or caught unawares , the existence of unlawful interference with that privacy can not in any case be made out merely because the photo was taken in those conditions . As , however , ORG has already established in respect of the photographs in question that the appellant was not in a secluded place , the doubts expressed above have no bearing on the review of its decision .","( cc ) However , the constitutional requirements have not been satisfied in so far as the decisions of which the appellant complains did not take account of the fact that the right to protection of personality rights of persons in the appellant \u2019s situation is strengthened by LAW those ORG intimate relations with their children .","( dd ) The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question :","The decision of ORG can not be criticised under constitutional law regarding the photos of the appellant at a market , doing her shopping at a market accompanied by her bodyguard or dining with a male companion at a well - attended restaurant . The first CARDINAL cases concerned an open location frequented by the general public . The third case admittedly concerned a well - circumscribed location , spatially speaking , but CARDINAL in which the appellant was exposed to the other people present . It is for this reason , moreover , that ORG deemed it legitimate to ban photos showing the appellant in a restaurant garden , which were the subject of the decision being appealed but are not the subject of the constitutional appeal . The presence of the appellant and her companion there presented all the features of seclusion . The fact that the photographs in question were evidently taken from a distance shows that the appellant could legitimately have assumed that she was not exposed to public view .","Nor can the decision being appealed be criticised regarding the photos of the appellant alone on horseback or riding a bicycle . In ORG view , the appellant had not been in a secluded place , but in a public one . That finding can not attract criticism under constitutional law . The appellant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone . In accordance with the criteria set out above , the mere desire of the person concerned is not relevant in any way .","The CARDINAL photos of the appellant with her children require a fresh examination , however , in the light of the constitutional rules set out above . We can not rule out the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for CARDINAL or other or all the photos . The decision must therefore be set aside in that respect and remitted to ORG for a fresh decision .","( d ) The decisions of ORG and ORG resulted in a violation of fundamental rights by limiting to the home the privacy protected by LAW read in conjunction with LAW in accordance , moreover , with a rationale that was in keeping with the case - law at the time . The decisions in question do not need to be set aside , however , since the violation complained of has been remedied in part by ORG and the remainder of the case remitted to that court .","... \u201d","Following the remittal of the case to ORG in connection with the CARDINAL photos that had appeared in ORG magazine ( issue no . CARDINAL of CARDINAL DATE and no . CARDINAL of DATE ) showing the applicant with her children , the NORP publishing company undertook not to republish the photos ( ORG ) .","On DATE the applicant reapplied to ORG , seeking an injunction preventing the ORG publishing company from republishing the second series of photos on the ground that they infringed her right to protection of her personality rights , guaranteed by LAW and CARDINAL \u00a7 CARDINAL of LAW , and her right to protection of her private life and to the control of the use of her image , guaranteed by sections CARDINAL et seq . of LAW .","In a judgment of DATE , ORG rejected the application , referring in particular to the grounds of ORG judgment of DATE .","The applicant appealed against that judgment .","In a judgment of DATE , ORG dismissed the applicant \u2019s appeal for the same reasons .","As ORG did not grant leave to appeal on points of law to ORG , the applicant lodged a constitutional appeal directly with ORG , relying on her earlier submissions .","In a decision of DATE , ORG , ruling as a panel of CARDINAL judges , refused to entertain the appeal . It referred in particular to ORG judgment of DATE and to its own landmark judgment of DATE .","On DATE the applicant reapplied to ORG , seeking an injunction preventing the ORG publishing company from republishing the third series of photos on the ground that they infringed her right to protection of her personality rights , guaranteed by Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW , and the right to protection of her private life and to the control of the use of her image , guaranteed by sections CARDINAL et seq . of ORG .","The applicant submitted , among other things , a sworn attestation by the director of ORG to the effect that the swimming baths in question were a private establishment , access to which was subject to a high fee and strictly controlled and from which journalists and photographers were debarred unless they had the express permission of the owner of the establishment . The fact that the photos were very blurred showed that they had been taken secretly , at a distance of QUANTITY , from the window or roof of a neighbouring house .","In a judgment of DATE , ORG rejected the application , referring in particular to the grounds of ORG judgment of DATE . The court stated that ORG had to be considered as an open - air swimming pool that was open to the public , even if an entry fee was charged and access restricted .","The applicant appealed against that judgment .","In a judgment of CARDINAL DATE , ORG dismissed the applicant \u2019s appeal for the same reasons .","ORG found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling down were not such as to denigrate or demean her in the public \u2019s eyes .","As ORG did not grant the applicant leave to appeal on points of law to ORG , the applicant lodged a constitutional appeal directly with ORG , relying on her earlier submissions .","In a decision of DATE , ORG , ruling as a panel of CARDINAL judges , refused to entertain the appeal . It referred in particular to ORG judgment of DATE and to its own landmark judgment of DATE .","ORG held that the ordinary courts had properly found that ORG was not a secluded place and that the photos of the applicant wearing a swimsuit and falling down were not capable of constituting an infringement of her right to respect for her private life .","II . RELEVANT DOMESTIC AND NORP LAW","The relevant provisions of LAW are worded as follows :","\u201c The dignity of human beings is inviolable . All public authorities have a duty to respect and protect it . \u201d","\u201c Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ] . \u201d","\u201c CARDINAL . Everyone shall have the right freely to express and disseminate his or her opinions in speech , writing and pictures and freely to obtain information from generally accessible sources . Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed . There shall be no censorship .","These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [ ORG der pers\u00f6nlichen GPE ] . \u201d","\u201c CARDINAL . Marriage and the family enjoy the special protection of the ORG .","NORP The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them . The ORG community shall oversee the performance of that duty . \u201d","Section CARDINAL(CARDINAL ) of ORG provides that images can only be disseminated with the express approval of the person concerned .","Section PERSON ) no . CARDINAL of that LAW provides for exceptions to that rule , particularly where the images portray an aspect of contemporary society ( GPE aus dem Bereich der GPE ) on condition that publication does not interfere with a legitimate interest ( berechtigtes ORG ) of the person concerned ( section CARDINAL ) ) .","The full text of this resolution , adopted by ORG on DATE , is worded as follows :","\u201c CARDINAL . The ORG recalls the current affairs debate it held on the right to privacy during its DATE session , DATE after the accident which cost FAC GPE her life .","NORP On that occasion , some people called for the protection of privacy , and in particular that of public figures , to be reinforced at the NORP level by means of a convention , while others believed that privacy was sufficiently protected by national legislation and LAW , and that freedom of expression should not be jeopardised .","NORP In order to explore the matter further , ORG Human Rights organised a hearing in GPE on DATE with the participation of public figures or their representatives and the media .","The right to privacy , guaranteed by LAW , has already been defined by the ORG in the declaration on mass communication media and human rights , contained within LAW ( DATE ) , as \u2018 the right to live one \u2019s own life with a minimum of interference\u2019 .","In view of the new communication technologies which make it possible to store and use personal data , the right to control one \u2019s own data should be added to this definition .","The ORG is aware that personal privacy is often invaded , even in countries with specific legislation to protect it , as people \u2019s private lives have become a highly lucrative commodity for certain sectors of the media . The victims are essentially public figures , since details of their private lives serve as a stimulus to sales . At the same time , public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy .","Public figures are persons holding public office and\/or using public resources and , more broadly speaking , all those who play a role in public life , whether in politics , the economy , the arts , the social sphere , sport or in any other domain .","It is often in the name of a CARDINAL - sided interpretation of the right to freedom of expression , which is guaranteed in LAW , that the media invade people \u2019s privacy , claiming that their readers are entitled to know everything about public figures .","Certain facts relating to the private lives of public figures , particularly politicians , may indeed be of interest to citizens , and it may therefore be legitimate for readers , who are also voters , to be informed of those facts .","It is therefore necessary to find a way of balancing the exercise of CARDINAL fundamental rights , both of which are guaranteed by ORG : the right to respect for one \u2019s private life and the right to freedom of expression .","The ORG reaffirms the importance of every person \u2019s right to privacy , and of the right to freedom of expression , as fundamental to a NORP society . These rights are neither absolute nor in any hierarchical order , since they are of equal value .","NORP However , the ORG points out that the right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media .","The ORG believes that , since all member states have now ratified LAW , and since many systems of national legislation comprise provisions guaranteeing this protection , there is no need to propose that a new convention guaranteeing the right to privacy should be adopted .","The ORG calls upon the governments of the member states to pass legislation , if no such legislation yet exists , guaranteeing the right to privacy containing the following guidelines , or if such legislation already exists , to supplement it with these guidelines :","( i ) the possibility of taking an action under civil law should be guaranteed , to enable a victim to claim possible damages for invasion of privacy ;","( ii ) editors and journalists should be rendered liable for invasions of privacy by their publications , as they are for libel ;","( iii ) when editors have published information that proves to be false , they should be required to publish equally prominent corrections at the request of those concerned ;","( iv ) economic penalties should be envisaged for publishing groups which systematically invade people \u2019s privacy ;","( v ) following or chasing persons to photograph , film or record them , in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm , should be prohibited ;","( vi ) a civil action ( private lawsuit ) by the victim should be allowed against a photographer or a person directly involved , where paparazzi have trespassed or used \u2018 visual or auditory enhancement devices\u2019 to capture recordings that they otherwise could not have captured without trespassing ;","( vii ) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings , such as summary applications for an interim order or an injunction postponing the dissemination of the information , subject to an assessment by the court as to the merits of the claim of an invasion of privacy ;","( viii ) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published .","It invites those governments which have not yet done so to ratify without delay ORG with regard to ORG .","The ORG also calls upon the governments of the member states to :","( i ) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession , as well as standards for self - regulation and a code of journalistic conduct ;","( ii ) promote the inclusion in journalism training programmes of a course in law , highlighting the importance of the right to privacy vis - \u00e0 - vis society as a whole ;","( iii ) NORP foster the development of media education on a wider scale , as part of education about human rights and responsibilities , in order to raise media users\u2019 awareness of what the right to privacy necessarily entails ;","( iv ) facilitate access to the courts and simplify the legal procedures relating to press offences , in order to ensure that GPE rights are better protected . \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84317","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2008,"docname":"CASE OF LUCKHOF and SPANNER v. AUSTRIA","importance":4,"conclusion":"No violation of Art. 6-1","judges":"Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides","text":["The first applicant was born in DATE and lives in GPE , a town situated in GPE . The second applicant lives in GPE , also situated in GPE .","On DATE at TIME the car of which the applicant is the registered keeper was recorded by a radar speed detector as exceeding the speed limit by CARDINAL k.p.h .","On DATE ORG Bezirkshauptmannschaft ) ordered the applicant to disclose within DATE the full name and address of the person who had been driving his car at the material time and place on DATE . It noted that an administrative offence had been committed by the driver of the car . The order referred to section CARDINAL(CARDINAL ) of LAW ( GPE ) as its legal basis .","On DATE the applicant replied that , on the date at issue , he had been on holiday with some friends and could not remember who had been driving the car at the material time .","On DATE ORG issued a provisional penal order ( Strafverf\u00fcgung ) in which it sentenced the applicant under sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW to pay a fine of CARDINAL NORP schillings ( ORG ) with CARDINAL days\u2019 imprisonment in default . It found that the applicant had failed to give the requested information .","The applicant filed an objection against this decision .","On DATE ORG dismissed the applicant \u2019s objection and issued a penal order ( PERSON ) confirming its previous decision .","The applicant appealed on DATE , submitting in particular that he had not given any false information but had replied as best as he could . In any case , the obligation under section CARDINAL(CARDINAL ) of LAW to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by LAW .","On DATE ORG ( Unabh\u00e4ngiger Verwaltungssenat ) dismissed the applicant \u2019s appeal . It noted in particular that the registered car keeper did not only act contrary to section CARDINAL(CARDINAL ) of FAC if he gave false information , but also if he provided incomplete information or no information at all . If need be he was obliged to keep records of the names and addresses of persons who had been driving his car . The applicant had failed to give the information requested by ORG order of CARDINAL DATE . As to the applicant \u2019s complaint that the obligation to disclose the identity of the driver of his car at a given time violated his right not to incriminate himself , the ORG observed that the relevant sentence in section CARDINAL(CARDINAL ) had constitutional rank . In this connection it referred to ORG judgment of CARDINAL DATE ( see paragraph CARDINAL below ) .","On DATE ORG Verfassungsgerichtshof ) refused to deal with the applicant \u2019s complaint . Referring to its judgment of CARDINAL DATE , it considered that the applicant \u2019s complaint about an alleged violation of his right not to incriminate himself did not offer sufficient prospects of success .","On DATE ORG ) refused to deal with the applicant \u2019s complaint pursuant to section DATE of LAW since the amount of the penalty did not exceed ATS CARDINAL,CARDINAL and no important legal problem was at stake . This decision was served on the applicant on DATE .","No proceedings for speeding were brought against the applicant .","On DATE at TIME the car of which the applicant is the registered keeper was parked illegally in a street in the seventh district of GPE .","On DATE ORG ( PERSON ) issued a provisional penal order against the applicant for parking contrary to the provisions of FAC ( PERSON ) and sentenced him to pay a fine of ORG CARDINAL NORP schillings with QUANTITY imprisonment in default .","The applicant filed an objection against this decision . Consequently , the provisional penal order became invalid in accordance with section DATE ) of GPE ( GPE ) . However , the criminal proceedings against the applicant relating to the offence of illicit parking remained pending .","On DATE , ORG ordered the applicant pursuant to section CARDINAL of FAC to disclose within DATE the full name and address of the person who had parked his car on DATE at the above - mentioned place . It noted that an offence under the said LAW , namely illicit parking in a short - term parking area , had been committed . The order informed the applicant that failure to provide the information or any incomplete or belated giving of information constituted an offence by virtue of section CARDINAL taken in conjunction with section CARDINAL ) of FAC . The applicant did not reply .","On DATE ORG issued a provisional penal order sentencing the applicant under LAW taken together with LAW of FAC to pay a fine of ORG CARDINAL with QUANTITY imprisonment in default for failure to disclose the identity of the driver of his car .","The applicant lodged an objection against this decision .","On DATE ORG dismissed the applicant \u2019s objection and issued a penal order confirming its previous decision .","The applicant appealed on DATE submitting , in particular , that the imposition of a fine for failure to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by LAW .","On DATE ORG dismissed the applicant \u2019s appeal . It noted in particular that the registered car keeper \u2019s obligation to disclose the identity of the driver of his car pursuant to section CARDINAL of FAC had to be read in conjunction with LAW no . CARDINAL\/CARDINAL , which provided that the authority \u2019s right to require information shall take precedence over the right to refuse to give information . This provision had constitutional rank and was comparable to the last sentence of section CARDINAL(CARDINAL ) of LAW .","On DATE ORG informed the applicant that the criminal proceedings against him for illicit parking had been discontinued .","On DATE ORG refused to deal with the applicant \u2019s complaint . Having regard to its case - law relating to section CARDINAL(CARDINAL ) of LAW , it found that the applicant \u2019s complaint did not offer sufficient prospects of success .","On DATE ORG refused to deal with the applicant \u2019s complaint pursuant to section DATE of LAW since the amount of the penalty did not exceed ATS CARDINAL,CARDINAL and no important legal problem was at stake .","Section CARDINAL(CARDINAL ) of LAW , as amended in DATE , ( ORG ) provides as follows :","\u201c The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date . The registered car keeper ... must provide such information , which must include the name and address of the person concerned ; if he or she is unable to give such information , he \/ she must name a person who can do so and who will then be under an obligation to inform the authority ; the statements made by the person required to give information do not release the authority from its duty to verify \u2019s right to require such information shall take precedence over the right to refuse to give information . \u201d","The last sentence of this provision was enacted as a provision of constitutional rank after ORG had , in its judgments of DATE and CARDINAL DATE , quashed previous similar provisions on the ground that they were contrary to LAW which prohibits , inter alia , that a suspect be obliged on pain of a fine to incriminate himself .","In its judgment of CARDINAL DATE ( GPE . CARDINAL ) ORG found that the first to third sentences of LAW , as amended in DATE , were , like the previous provisions , contrary to the right not to incriminate oneself which flowed from LAW and from LAW but were saved by the last sentence of that provision , which had constitutional rank . In reaching that conclusion ORG had examined whether the last sentence of section CARDINAL(CARDINAL ) was contrary to the guiding principles of the constitution , but had found that this was not the case .","Section CARDINAL(CARDINAL ) of LAW , in the version in force at the material time , provided that a fine of up to ORG CARDINAL,CARDINAL , or CARDINAL GPE imprisonment in default , could be imposed on a person who violates the regulations of that LAW .","FAC regulates the levying of parking fees in specified \u201c short - term parking areas \u201d .","The relevant part of section CARDINAL of FAC reads as follows :","\u201c ( CARDINAL ) The registered keeper of a motor vehicle ... has , if the motor vehicle has been parking in a short - term parking area liable to a fee , to inform ORG to whom he has left the motor vehicle ... at a certain time .","( CARDINAL ) The information , which must include the name and address of the person concerned , is to be provided immediately or , in case of a written request , within DATE after the request has been served ; where such information can not be provided without keeping pertinent records , such records shall be kept . \u201d","According to section CARDINAL(CARDINAL ) of FAC , in the version in force at the material time , a fine of up to ORG CARDINAL,CARDINAL could be imposed for a failure to comply with the obligation laid down in LAW .","The relevant part of LAW no . CARDINAL reads as follows :","\u201c Where the ORG , in regulating the levying of fees for the parking of motor vehicles ... oblige the registered keeper ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time , the authority \u2019s right to require such information shall take precedence over the right to refuse to give information . \u201d","This provision was enacted as a provision of constitutional rank .","Pursuant to section CARDINAL of the Act on Administrative Offences ( GPE ) any administrative criminal offence may be committed by negligence , unless provided otherwise .","Pursuant to section CARDINAL of that Act an administrative fine is to be accompanied by a default prison term of up to CARDINAL days\u2019 imprisonment , unless provided otherwise . The enforcement of a default prison term is regulated by section DATE of LAW . It is only admissible if it is established that the fine is not recoverable . The competent authority has to conduct enforcement proceedings , in which the person concerned has the possibility to request a stay of the payment or payment by instalments . Only if the enforcement of the fine proves to be unsuccessful can an order for the enforcement of the default prison term be made . The order must inform the person concerned that payment of the fine can be made at any time in order to avert the execution of the default prison term ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-122270","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2013,"docname":"\u0160IMKA v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;J\u00e1n \u0160ikuta;Johannes Silvis;Josep Casadevall;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , a lawyer practising in GPE .","NORP The applicant held the post of ORG ( ved\u00faci slu\u017eobn\u00e9ho \u00faradu ) at ORG .","On DATE the President of ORG ( PERSON pre \u0161t\u00e1tnu slu\u017ebu ) removed the applicant from that post with effect from DATE , with reference to section CARDINAL(CARDINAL ) and ( CARDINAL)(d ) as well as section CARDINAL(e ) of ORG CARDINAL . The decision indicated that it had been taken at the behest of the Minister of the ORG .","Subsequently the applicant declined the offer of a transfer to a different position within ORG .","On DATE ORG issued a decision indicating that the applicant had lost the status of ORG civil servant on DATE .","On DATE the applicant appealed against the decisions of DATE . He argued that neither the decision nor the Minister \u2019s letter to which it referred gave any reasons for his removal . The decision interfered with his fundamental rights and was discriminatory . In particular , section DATE ) of ORG DATE allowed for removal of the then CARDINAL heads of different ministries Offices solely on the recommendation of the Minister concerned . However , CARDINAL ORG civil servants holding different posts could only be removed for reasons provided for by the law . The decision to remove the applicant without justification was also contrary to the principles underlying LAW .","On DATE the applicant appealed against the decision terminating his status as ORG civil servant . He gave reasons for his appeal against the decision .","On DATE and CARDINAL DATE respectively the President of ORG dismissed both the applicant \u2019s appeals . Those decisions stated that under section CARDINAL ) of ORG CARDINAL the President of ORG was obliged to remove the head of a ministry office at the behest of the Minister concerned . There was no requirement for reasons to be given for such a recommendation . The subsequent termination of the applicant \u2019s status as ORG civil servant conformed to section CARDINAL(CARDINAL)(c ) of ORG CARDINAL .","On DATE the applicant brought an action with ORG . He sought a review of the administrative decisions of DATE and CARDINAL DATE removing him from the post of ORG at ORG . He argued that he had been discriminated against in that he had been removed without reasons being given . The applicant proposed that ORG should stay the proceedings on his action and request ORG to examine the conformity of section DATE ) of ORG DATE with , inter alia , Article CARDINAL ) of the LAW , LAW , and directives of ORG .","On DATE ORG transferred the case to ORG for reasons of jurisdiction .","On DATE ORG stayed the proceedings , as it considered the relevant provision of ORG CARDINAL to run contrary to LAW and LAW . It referred that issue for determination by ORG .","On DATE ORG discontinued the proceedings , because section CARDINAL(CARDINAL)(d ) of ORG CARDINAL had been repealed with effect from DATE . The decision stated that ORG power to review conformity of legal rules with the LAW extended exclusively to those rules which were actually in force . CARDINAL constitutional judges attached a dissenting opinion to that conclusion .","On DATE ORG dismissed the applicant \u2019s action . It found that the applicant had been removed at the behest of the Minister of the ORG pursuant to section CARDINAL(CARDINAL)(d ) of ORG CARDINAL , as in force at the relevant time . There had been no breach of the applicable law in that context .","The applicant appealed . He noted that ORG itself had expressed the view that the provision under which the applicant had been removed ran contrary to the LAW and international treaties by which GPE was bound . In the absence of a decision of ORG on conformity with LAW of the relevant legal rule , the issue fell to be determined by the ordinary court dealing with the case . To proceed in a different manner would amount to a denial of justice .","On DATE ORG upheld the first - instance judgment . It held that the applicant \u2019s removal from post had been in accordance with the law . The ordinary courts within the administrative judiciary were not called upon to determine conflicts of law . Their role was restricted to examining whether administrative decisions complied with applicable law .","On DATE the applicant brought an action with ORG in which he challenged the decisions of DATE and CARDINAL DATE terminating his status as civil servant . With reference to the reasons for his action of CARDINAL DATE seeking review of the administrative decisions , the applicant argued that the contested decisions were unlawful and contrary to the LAW and international treaties by which GPE was bound . As in his previous action , the applicant asked for the proceedings to be stayed and for ORG to be petitioned for a review of the constitutionality of the relevant provision of ORG DATE .","On DATE ORG transferred the case to ORG for reasons of jurisdiction .","On DATE ORG dismissed the action . It noted that , following his removal as ORG at ORG , the applicant had been offered CARDINAL different posts at that Ministry . After he had declined those offers , his status as ORG civil servant had been terminated pursuant to section CARDINAL(CARDINAL)(c ) of ORG CARDINAL . There had been no breach of the applicable law in that context .","On DATE the applicant appealed . He argued that his removal from the position of ORG had been unlawful and that judicial proceedings concerning that issue were pending . The applicant asked for the proceedings to be discontinued pending the final determination of the action concerning the lawfulness of his removal .","On DATE ORG upheld the first - instance judgment . With reference to the reasons for its judgment of CARDINAL DATE it concluded that the applicant \u2019s status as civil servant had been terminated in accordance with the law .","On DATE the applicant lodged a complaint with ORG . He alleged that ORG CARDINAL judgments of CARDINAL DATE breached his rights under LAW and CARDINAL of the LAW , as well as their constitutional equivalents , and also his right under LAW to protection against arbitrary dismissal and discrimination in employment . In particular , the applicant asserted that the ordinary courts had decided arbitrarily , while disregarding the discriminatory nature of the legal provision pursuant to which he had been removed .","On DATE ORG dismissed the complaint . It noted that the primary issue was conformity of the relevant statutory provision with the LAW and international treaties . However , such decisions lay within the power of ORG in plenary session , and they could not be addressed in the context of individual complaints under LAW . In those circumstances , both ORG and the ordinary courts were bound by the presumption that the relevant statutory provision was in conformity with LAW .","ORG concluded that in the judgments complained of ORG had given relevant reasons for its conclusions which were not arbitrary .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that international treaties on human rights ratified and promulgated in accordance with the law take precedence over laws .","Article ORG ) guarantees protection for employees against arbitrary dismissal and discrimination .","Pursuant to LAW ) , ORG decides on conformity of laws with the LAW , constitutional laws , and international treaties approved by ORG which have been duly ratified and promulgated .","Article CARDINAL \u00a7 CARDINAL entitles ORG to decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE , unless the protection of such rights and freedoms falls within the jurisdiction of a different court .","Article CARDINAL \u00a7 CARDINAL provides for independence of judges in the exercise of their function . When deciding on cases judges are bound by the LAW , constitutional laws and international treaties referred to , inter alia , in LAW and laws .","Pursuant to LAW , where a court considers that a legally binding legal rule or a part thereof bearing on the matter before it is contrary to LAW , a constitutional law , an international treaty within the meaning of LAW , or a law , it is to stay the proceedings and petition for proceedings to be brought LAW CARDINAL \u00a7 CARDINAL of the LAW . The legal opinion set out in ORG decision is binding on the court concerned .","Under LAW , the interpretation and application of constitutional laws , laws and other generally binding legal rules must conform to LAW .","Pursuant to Article CARDINAL \u00a7 CARDINAL(b ) , a court stays proceedings where , before determination of the merits , it concludes that the generally binding legal rule bearing on the case before it is contrary to the LAW , a law , or an international treaty by which GPE is bound . In such an event it petitions ORG for determination of that issue .","At the material time the relevant provisions of ORG ( PERSON o \u0161t\u00e1tnej slu\u017ebe a zmene niektor\u00fdch z\u00e1konov ) provided as follows .","Pursuant to section CARDINAL(CARDINAL ) , the purpose of the LAW is to govern legal relations in the context of the ORG civil service , namely the rights and obligations of the ORG and the civil servant in that context . LAW CARDINAL lists professionalism , political independence and impartiality among the principles on which the ORG civil service is built .","Section CARDINAL(CARDINAL)(a ) lists ministries and other central ORG administration bodies as \u201c service offices \u201d ( slu\u017eobn\u00fd \u00farad ) for the purpose of the LAW .","Pursuant to section CARDINAL ) , the head of a service office is the hierarchical superior of all the employees working in that service office . Subsection CARDINAL of section CARDINAL provides for appointment of heads of service offices at ministries at the behest of the minister concerned from among applicants who have been successful in the selection process .","Section CARDINAL(CARDINAL ) provides for dismissal of a head of a service office at a ministry in the following cases :","( a ) failure to meet objectives set ;","( b ) inability , for health reasons , to carry out the required duties for DATE ;","( c ) at his or her own written request ;","( d ) on the Minister \u2019s written recommendation ; and","( e ) where the service office concerned has ceased to exist .","Sub - section CARDINAL of section CARDINAL provides for a head of a service office who has been removed to be transferred to a different appropriate civil service post unless a different agreement is reached .","Section CARDINAL(CARDINAL)(c ) allows for termination of a person \u2019s status as a ORG civil servant where a head of a service office who has been removed can not be transferred to an equivalent post because no such equivalent post exists , and where no other agreement has been reached . CARDINAL months\u2019 salary is to be paid to the person concerned in such a case .","With effect from DATE ORG DATE was amended in that , inter alia , subsections CARDINAL to CARDINAL were deleted from section CARDINAL . The reports accompanying the draft amendments indicated that their purpose was to eliminate shortcomings resulting from earlier amendments and to harmonise the removal of heads of service offices who fell under the direct managerial responsibility of politically nominated superiors at ministries and other central authorities of the ORG administration ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-122033","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2013,"docname":"DAYTBEGOVA AND MAGOMEDOVA v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicants , PERSON and Ms GPE , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They are mother and daughter and are represented before the ORG by PERSON , a lawyer practising in GPE .","ORG were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants travelled to GPE via GPE , with the first applicant \u2019s son , born in DATE , and lodged an asylum request there on DATE . The applicants had not lodged an asylum request in GPE , but they had held a visa for entry into the country , which was valid from DATE .","At the request of the NORP authorities GPE accepted jurisdiction with regard to the applicants\u2019 asylum proceedings , pursuant to ORG ( ORG ) No CARDINAL\/CARDINAL ( hereinafter \u201c LAW \u201d ) .","In the course of the NORP proceedings the first applicant claimed to fear refoulement from GPE to PERSON and lack of access to medical treatment in GPE . Her whole family , with the exception of the youngest boy , was suffering from depression . The second applicant in particular was very ill , uncommunicative , and suffered from headaches . The first applicant claimed that her husband was registered as a suspect with the NORP military services . As a result , he had gone into hiding in the mountains . The first applicant and her family had been repeatedly threatened , to induce them to disclose the whereabouts of her husband \u2019s hiding place .","On DATE ORG ( Bundesasylamt ) rejected the asylum requests in line with LAW ) in conjunction with LAW of LAW , and ordered the applicants\u2019 transfer to GPE .","On DATE ORG ( Asylgerichtshof ) quashed those decisions and noted that the statements made by ORG regarding the health of the second applicant were insufficient and that the authority had failed to establish that the second applicant was fit to be transferred to GPE ( GPE ) . Furthermore , the authority had failed to evaluate information regarding access to medical treatment in GPE . Finally , since the applicants must be considered vulnerable persons , the authority needed to get assurances from the NORP authorities regarding housing , related support and access to medical treatment .","On DATE the NORP ORG responded to the NORP request for information concerning the reception conditions by stating in general terms that the reception and lodging of asylum seekers in GPE was guaranteed in governmental asylum centres ( ORG or ORG ) . It was further especially referred to the fact that GPE paid particular attention to vulnerable asylum seekers . Therefore , to ensure appropriate medical and welfare support for such vulnerable groups , the NORP authorities were requested to submit detailed information for each individual case .","On DATE ORG again rejected the applicants\u2019 asylum request pursuant to the DATE LAW and LAW , and ordered their expulsion to GPE . Referring to relevant country reports , it found that asylum seekers had access to medical treatment in GPE after initial registration with the welfare unit . Vulnerable persons also had special access to lodgings with the \u201c ORG per Richiedenti NORP e Rifugiati \u201d ( Protection System for Asylum Seekers and Refugees , hereinafter \u201c ORG \u201d ) . With reference to the medical documents concerning the second applicant \u2019s health , it found that the fact that the applicants had access to NORP medical services meant that they could count on the necessary support if transferred to GPE . To complement this information , the authority also referred to the fact that at the time of the actual transfer the immigration police ( Fremdenpolizei ) was called upon to decide whether a transfer was possible or not for medical or psychological reasons .","On DATE ORG rendered CARDINAL decision with regard to the CARDINAL applicants and the first applicant \u2019s younger son , dismissing the applicants\u2019 appeal against those decisions as unfounded . The decision featured the CARDINAL file numbers of all parties concerned and the CARDINAL separate operative parts referred to the different file numbers by reference number .","NORP In substance it found that the applicants had not sufficiently proved that they would not have access to medical treatment in GPE . Furthermore , the applicants had not even lodged an asylum request in GPE , which weakened their criticism of the NORP asylum system . The general information available to the authority would not warrant the opinion that the applicants would be subjected to treatment contrary to LAW if they were returned to GPE . Acknowledging the fact that the second applicant , and also the first applicant , who had less serious symptoms , was suffering from psychological impairments , ORG found that they had to accept the possibility that their health would deteriorate and that their opportunities to receive medical treatment would be reduced if they were transferred , which was in line with the ORG \u2019s case - law . Furthermore , the NORP authorities would treat the transfer as \u201c problematic \u201d and thus provide medical assistance during the removal attempt . Finally , the NORP authorities had also declared that they would inform the NORP authorities of the planned transfer in due time , to enable them to prepare the reception of the applicants in GPE .","On DATE the first applicant applied for legal aid to lodge a complaint with ORG . In the application she referred only to the file number of her proceedings before ORG . Thereupon , on DATE , ORG Verfassungsgerichtshof ) granted legal aid to the first applicant to lodge a complaint against that last decision . By a decision of DATE the first applicant \u2019s complaint was not granted suspensive effect by ORG . The complaint proceedings are pending .","The transfer of the applicants and the youngest son was originally planned to take place on DATE .","In preparation for the transfer the NORP authorities submitted a quantity of medical information to the NORP authorities on DATE , including a statement from ORG dated DATE ( see paragraph CARDINAL below ) .","On DATE the NORP authorities again requested information regarding the applicants\u2019 medical status . The NORP authorities responded on DATE that there was no new medical information and that all relevant information had already been submitted .","NORP However , on DATE the NORP authorities had to cancel the applicants\u2019 transfer to GPE because the first applicant \u2019s younger son had disappeared and could not be found by the authorities . Thereupon , the NORP authorities informed the NORP authorities of the expansion of the transfer period to DATE because of the disappearance of the first applicant \u2019s son .","On DATE the second applicant was admitted to the secure ward of ORG in GPE ( Landesnervenklinik PERSON ) . That admission to the secure ward was approved by the competent court by a decision based on an expert \u2019s diagnosis of acute post - traumatic stress disorder with serious suicidal tendencies and specific thoughts of putting those tendencies into practice . The second applicant was treated in the secure ward until DATE and remained in the hospital until DATE , in the open ward .","CARDINAL older psychological statements , commissioned by ORG and dated DATE and DATE respectively , diagnosed an adjustment disorder in respect of the second applicant , but no acute suicidal tendencies .","A first psychological statement of ORG of DATE confirmed that the second applicant had been in regular treatment at the hospital since DATE and diagnosed post - traumatic stress disorder with distinct symptoms and a traumatic neurosis . In the course of the treatment , a sleep activating anti - depressive therapy had been initiated . However , since the start of the therapy only a slight improvement in the second applicant \u2019s condition had been noticed . The statement recommended a stable environment ; cessation of the treatment could lead to aggravation of the symptoms . Furthermore , the second applicant showed suicidal tendencies with some impulses to put them into practice . From a psychiatric point of view it was recommended that the second applicant stay in an environment that she considered safe .","A second statement of ORG of DATE confirmed that pharmacological treatment and psychotherapy had begun ; however , no improvement in the second applicant \u2019s condition was yet noticeable . The insecure status of the second applicant \u2019s stay in GPE had led to depression , sleep disorder and continuing weight loss . It further stated that continuing and long - term treatment of the second applicant was essential , and that disruption of the second applicant \u2019s environment could mean a worsening of the symptoms , including the suicidal tendencies . The applicant was treated with GPE , GPE and PERSON forte and was in regular psychotherapeutic treatment .","In the course of the proceedings before the ORG the applicants provided further medical documentation of CARDINAL DATE from ORG for children and young persons at ORG ; this indicated that the second applicant remained in outpatient treatment after her release from the hospital in DATE , and that she was still suffering from post - traumatic stress disorder , manifesting itself with insomnia and a depressed state of mind including suicidal tendencies and weariness . She was continuing to lose weight . The statement continued that on - going and long - term psychotherapeutic treatment was essential , and that security and a sense of safety were important factors that would provide a prospect of improvement . The next steps recommended were drug therapy , regular medical checks , preferably in a familiar environment , continuing trauma - specific psychotherapy , and educational support .","On DATE the ORG applied the interim measure under Rule CARDINAL and requested ORG to stay the ORG transfer to GPE until further notice .","The first applicant \u2019s husband and elder son entered GPE illegally and lodged asylum requests on DATE . To secure the union of the family , the NORP authorities agreed on DATE to also accept jurisdiction regarding their asylum proceedings . ORG thereupon rejected the asylum requests ; however , an appeal lodged with ORG against those decisions was awarded suspensive effect on DATE .","The relevant NORP and NORP law , instruments , principles and practice have only recently been exhaustively summarised , in PERSON v. the GPE and GPE ( dec . ) , no . CARDINAL , \u00a7 \u00a7 CARDINAL and CARDINAL , DATE . In the following , only information that is particularly relevant to the present case will be repeated .","Under the ORG , the member GPE must determine , on the basis of a hierarchy of objective criteria ( Articles CARDINAL to CARDINAL ) , which member ORG bears responsibility for examining an asylum application lodged on their territory . The aim is to avoid multiple applications and to guarantee that each asylum seeker \u2019s case is dealt with by a single member ORG .","Where it is established that an asylum seeker has irregularly crossed the border into a member ORG , having come from a third country , the member ORG thus entered is responsible for examining the application for asylum ( Article CARDINAL \u00a7 CARDINAL ) . This responsibility ceases DATE after the date on which the irregular border crossing took place .","Where the criteria in the regulation indicate that another member ORG is responsible , that ORG is requested to take responsibility for the asylum seeker and examine the application for asylum ( LAW ) .","By way of derogation from the general rule , each member ORG may examine an application for asylum lodged with it by a third - country national , even if such an examination is not its responsibility under the criteria laid down in the Regulation ( Article CARDINAL \u00a7 CARDINAL ) . This is called the \u201c sovereignty \u201d clause . In such cases the ORG concerned becomes the member ORG responsible and assumes the obligations associated with that responsibility .","Section CARDINAL of LAW DATE ( Asylgesetz ) provides that an asylum application shall be rejected as inadmissible if , under treaty provisions or pursuant to LAW , another ORG has jurisdiction to examine the application for asylum . When rendering a decision rejecting an application , the authority shall specify which ORG has jurisdiction in the matter .","According to Section CARDINAL , an appeal lodged with ORG against a decision of ORG rejecting an asylum request has no suspensive effect . A complaint against a removal order connected with such a decision to reject may be awarded suspensive effect by ORG within DATE ( see LAW ) .","Reference is made to the extensive description of the NORP asylum procedure and domestic law in PERSON , cited above , \u00a7 \u00a7 CARDINAL - CARDINAL .","NORP In particular , paragraphs CARDINAL explain that","\u201c CARDINAL . A person wishing to apply for asylum in GPE should do so with the border police or , if already in GPE , with the police ( questura ) immigration department . As soon as an asylum request has been filed , the petitioner is granted access to GPE as well as to the asylum procedure , and is authorised to remain in GPE pending the determination of the asylum request by ORG for ORG .","For petitioners who do not hold a valid entry visa , an identification procedure ( fotosegnalamento ) is carried out by the police \u2013 if need be \u2013 with the assistance of an interpreter . This procedure comprises the taking of passport photographs and fingerprints . The fingerprints are checked for matches in ORG and the domestic ORG ( Automated Fingerprint Identification System ) database . At DATE procedure , the petitioner is given a notice confirming the first registration ( cedolino ) , on which future appointments are noted , in particular the appointment for the formal registration of the request .","The formal asylum request will be made in writing . On the basis of an interview held with the petitioner in a language which he or she understands , the police will fill out the \u2018 Standard form C\/CARDINAL for the recognition of refugee status according to LAW ( ORG C\/CARDINAL per il riconoscimento dello status di rifugiato ai sensi della PERSON di PERSON ) , which contains questions on the petitioner \u2019s personal data ( name , surname , date of birth , citizenship , name and surname of parents \/ spouse \/ children and their whereabouts ) as well as the details of the journey to GPE and reasons for fleeing the country of origin and for seeking asylum in GPE . The petitioner will be asked to provide a written paper , which will be appended to the form , containing his or her asylum account and written in his or her own language . The police will retain the original form and provide the petitioner with a stamped copy .","The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent ORG for ORG . During this hearing , the petitioner will be assisted by an interpreter . \u201d","The \u2018 Dublin II Regulation National Report\u2019 on GPE of DATE states additionally to the above - mentioned information with regard to access to the asylum procedure for GPE - returners ( pages CARDINAL and CARDINAL of the report ) :","\u201c At the arrival in the main airports , the applicant finds NGOs \/ associations which may help him \/ her to find an accommodation centre and provide him \/ her with further information on the asylum procedure . At the airport , FAC carry out the fotosegnalamento and verify the person \u2019s identity in the ORG database . After having undertaken these procedures , the applicant will receive a letter ( called \u201c verbale di invito \u201d ) saying that s \/ he has to go to the PERSON competent to continue the asylum procedure . The asylum seeker may be addressed to the office of the PERSON where s \/ he was fingerprinted and photographed or to the office where s \/ he lodged the asylum application or where the documents related to his \/ her case are kept . The law does not foresee any support for reaching the competent PERSON . In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent GPE . However , this support is not always guaranteed and often it happens that the ORG does not have information on the real arrival of the asylum seekers and on whether s \/ he has found an accommodation there .","Once the person is at the PERSON , s \/ he may face different outcomes according to whether s \/ he did not apply or s \/ he did apply for asylum when s \/ he was in GPE previously .","If the person had never applied for international protection before , s \/ he is able to ask for protection DATE and is entitled to the same rights as the other asylum seekers . ... \u201d","Both the ORG in its \u201c Recommendations on Important Aspects of Refugee Protection in GPE \u201d of DATE ( page CARDINAL ) and ORG and the NORP NGO Juss - Buss in their report \u2018 Asylum procedure and reception conditions in Italy\u2019 of DATE ( page CARDINAL ) inform on incidents in which asylum seekers have had difficulties lodging a formal asylum application with the PERSON , or only got an appointment with the PERSON DATE after their arrival in GPE . In this period of time however , asylum seekers have no access to lodging or subsistence .","The reception scheme and the reception conditions in GPE are summarised again in PERSON , cited above , \u00a7 \u00a7 DATE .","NORP In particular , it is noted in respect of vulnerable asylum seekers that pursuant to Legislative Decree no . PERSON , implementing ORG of DATE on laying down minimum standards for the reception of asylum seekers , asylum seekers in GPE are entitled to reception facilities . According to LAW , reception arrangements are to be made on the basis of the specific needs of asylum seekers and their families , in particular the needs of vulnerable persons , namely unaccompanied minors , disabled persons , pregnant women , single parents with minor children , and persons who have been subjected to torture , rape or other forms of serious psychological , physical or sexual violence . NORP domestic law provides for special guarantees for such vulnerable persons , including a reserved quota of places in the ORG reception scheme ( see ibid . , \u00a7 DATE ) . The NORP authorities specified in their comments on the report by ORG for Human Rights dated DATE that the system of reception in the ORG centres , which accommodate asylum seekers , envisaged that a range of services must be provided to migrants , including , inter alia , socio - psychological support , with special attention for persons belonging to vulnerable categories and medical assistance appointments with consultants . Those reception conditions were also guaranteed to GPE - returners . This category received a preliminary form of reception upon arrival when the services present in the main airports were activated ; subsequently they were accommodated in government reception centres . When the transferring country reported an asylum seeker as belonging to a vulnerable category , appropriate medical measures were taken in the centres , intended to provide appropriate reception . Special attention was paid to migrants with physical or [ psychological ] trauma and to victims of torture , who were entrusted to the medical stations of the reception centres or at a local level to receive treatment and support of a professional and appropriate nature ( see ibid . , \u00a7 CARDINAL ) .","As regards medical assistance , the NORP comments established ( ibid . ) that","\u201c in GPE , foreign citizens , even those not complying with the provisions regulating their presence , are entitled to ordinary and\/or urgent treatment through ORG .","In the government centres for migrants the psychic \/ physical health of guests is recognized as an unalienable right of the individual , which is safeguarded by article CARDINAL of LAW and it has always been put at the forefront when the regulatory and management system of the centres is being prepared .","More specifically , the medical assistance service provided for in the centres for migrants must grant guests the following :","a ) Visit upon entry and medical first aid , carried out in a consulting room set up within the facility with medical staff and nurses , whose shifts must be based on the ratio guests \/ staff as indicated in the tables of the tender specifications ;","b ) When the need arises , possible transfer of guests to hospitals outside the centres , in compliance with LAW as migrants hosted in ORG centres can benefit from the services of ORG by showing their ORG cards ( Temporarily Present Alien ) , issued by ORG , whereby they can enjoy treatment in the consulting room or in hospitals , when it is urgent or essential in case life is in peril ;","c ) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance , including for generic conditions of psychological type ;","d ) Recording of a personal medical file , a copy of which must be handed over to the guest . In this connection it is worth mentioning that doctors , when screening the guests upon entry must also evaluate their psychic - social situation as well as the presence of vulnerability factors ( serious psychic - psychological conditions , including previous ones , victims of mistreatment \/ torture , substance addiction , etc . ) in order to prescribe possible drug treatment or psychological counselling .","It is further specified that as provided for by the above mentioned LAW ( ORG ) , foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and\/or in hospital ( both urgent and continuing treatment ) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health .","Regardless of the possession of a residence permit , the NORP legislation provides for the social protection and medical assistance to expectant mothers and to mothers , the protection of the psychic - physical health of minors ( as a result of ORG , interventions of prevention , diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection .","Finally , when aliens not complying with provisions regulating their presence visit public medical facilities , they are not reported to ORG .","As far as social services are concerned , the principle enshrined in LAW DATE LAW according to which the status of a refugee is equal to that of a national DATE is embodied in the NORP legislation also as a consequence of article CARDINAL of the above mentioned Legislative Decree No . CARDINAL of CARDINAL DATE , which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as NORP citizens and thus they have access to all services and benefits , including economic ones , covered by the social and medical assistance system .","Furthermore , the projects funded through resources of the ORG include measures to ease the access to social security , particularly on the part of vulnerable groups . \u201d","And finally , with regard to the reception of GPE - returners , the \u201c Dublin II Regulation National Report \u201d on GPE stated in particular that ( ibid . , \u00a7 DATE )","\u201c Within this broader category , another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s \/ he was in GPE .","If returnees ( international protection seekers , beneficiaries of international protection or of a permit of stay for humanitarian reasons ) had not been placed in reception facilities while they were in GPE , they may still enter reception centres . Due to the lack of available places in reception structures and to the fragmentation of the reception system , the length of time necessary to find again availability in the centres is DATE in most of the cases - too long . Since , there is no general practice , it is not possible to make a quantification of the time necessary to access to an accommodation . However , in DATE , temporary reception systems have been established to house persons transferred to GPE on the basis of GPE . However , it concerns a form of temporary reception that lasts until their juridical situation is defined or , in case they belong to vulnerable categories , an alternative facility is found .","Such temporary reception has been set up thanks to targeted projects funded by ORG . For instance , in GPE , there are currently projects providing assistance to CARDINAL persons \u2013 within this broader category CARDINAL places are for vulnerable categories .","However , it happens that GPE returnees are not accommodated and find alternative forms of accommodation such as self - organized settlements .... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100370","languageisocode":"ENG","respondent":"EST","branch":"ADMISSIBILITY","date":2010,"docname":"KAASIK v. ESTONIA","importance":4,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE . He is currently serving a prison sentence .","and as they appear from the documents on file , may be summarised as follows .","On DATE the ORG convicted the applicant of manslaughter , attempted murder and violent and threatening behaviour . He was sentenced to DATE imprisonment to which an unserved sentence of DATE from an earlier judgment was added .","According to the text of the judgment DATE which was drawn up in LANGUAGE \u2013 an interpreter participated in the hearing ; the applicant was assisted by a lawyer . It would appear that the proceedings in ORG were conducted mainly in NORP since the applicant and several other participants in the proceedings were LANGUAGE - speakers .","On DATE the ORG heard the applicant 's appeal . The applicant was assisted by a lawyer ; an interpreter also participated in the hearing . According to the documents submitted by the applicant , ORG informed the participants in the hearing that its judgment would be available on DATE at the court 's office and explained that any notice of appeal against its judgment had to be submitted to the court 's office within DATE of CARDINAL DATE . The participants in the proceedings confirmed that they had understood the appeal procedure .","By a judgment of CARDINAL DATE ORG dismissed the applicant 's appeal . It appears that the operative part of the judgment was available at the court 's office on DATE . A translation into NORP of the operative part of the judgment was served on the applicant , who was in detention in FAC , on CARDINAL DATE .","According to the applicant , he had been informed after the examination of his appeal in ORG that the court had to be notified of any intention to appeal within DATE and that only a lawyer had the right to lodge an appeal in cassation with ORG . His lawyer had not come to the prison to discuss further action despite his promise to do so . On an unspecified date he had called his lawyer , who had told him to inform the court of his intention to appeal and to lodge an appeal in cassation .","On DATE and DATE the applicant handed over to the prison authorities applications addressed to ORG and ORG informing them of his intention to appeal .","On DATE the ORG refused to accept the applicant 's notification of appeal , finding that the time - limit for submission of any such notification had expired on DATE , that is , DATE after the applicant had received the translation into NORP of the operative part of the judgment , whereas the applicant 's letters had been handed over to the prison authorities too late , on DATE and DATE . ORG noted that the applicant had not requested that the court restore the time - limit and had not provided any explanation why he had failed to comply with it .","In the meantime , on DATE , the applicant requested ORG to restore the time - limit for appeal . By a decision of DATE ORG rejected the application . It noted that pursuant to LAW both an appeal in cassation and a request for restoration of the time - limit for appeal had to be drawn up by a lawyer . ORG decision was sent to the applicant on DATE .","On DATE the applicant lodged a procedural appeal with ORG against ORG decision of DATE . On DATE ORG rejected the appeal because it too should have been drawn up by a lawyer . ORG decision was sent to the applicant on CARDINAL DATE .","Article CARDINAL of LAW ( ORG seadustik ) concerns the pronouncement of a first - instance court 's judgment . Pursuant to LAW it also applies , mutatis mutandis , to appellate court judgments . It reads as follows :","\u201c ( CARDINAL ) A judge or ... the presiding judge shall pronounce a judgment at the time announced pursuant to LAW .","( CARDINAL ) NORP If the accused is not proficient in the language of the criminal proceedings , the judgment shall be interpreted or translated for him or her after its pronouncement .","( CARDINAL ) The judge shall ask whether the person acquitted or convicted understands the judgment and explain its content to him or her if necessary .","( CARDINAL ) A court may decide to pronounce only the operative part of the judgment , in which case it shall explain the main reasons for the judgment orally upon its pronouncement .","( CARDINAL ) After the pronouncement of a judgment or its operative part the judge or presiding judge shall :","CARDINAL ) upon the pronouncement of the operative part of the judgment , give notification of the date on which the judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the record of the court hearing ;","CARDINAL ) NORP give notification of the term for appeal against the judgment and explain the procedure for appeal provided for in LAW and the possibility to waive the right of appeal ;","CARDINAL ) NORP explain that the county court must be notified in writing of the intention to exercise the right of appeal within DATE of the pronouncement of the judgment or its operative part .","( CARDINAL ) Waiver of the right of appeal shall be recorded in the record of the court hearing . A lawyer may waive the right of appeal only with the written consent of the defendant .","( CARDINAL ) If all parties to the court proceedings waive the right of appeal or if during the term provided for in paragraph CARDINAL(CARDINAL ) of this Article none of the parties to the court proceedings gives notification of their intention to exercise the right of appeal , only the [ introductory part and operative provisions ] shall be set out in the judgment .","( CARDINAL) If the parties to the court proceedings do not waive the right of appeal , the full judgment shall be prepared within DATE of the date on which the county court is notified of an intention to exercise the right of appeal . \u201d","Article CARDINAL provides that a court must send a copy of a judgment to a party who was not present at its pronouncement ( \u00a7 CARDINAL ) . Where the defendant is under arrest , a copy of the judgment must be sent to him or her immediately after its pronouncement or immediately after it is made available at the court 's office ( \u00a7 CARDINAL ) .","Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) provides that if a court of appeal dismisses an appeal and upholds the judgment of the first - instance court , it can limit its judgment to the introduction and operative part and make reference to the provisions of procedural law pursuant to which the judgment was made .","Article CARDINAL provides that after the parties ' closing statements a court of appeal must announce the date when its judgment will be available for the parties to the proceedings at the court of appeal 's office ( \u00a7 CARDINAL ) . If the court of appeal pronounces its judgment or the operative part of the judgment immediately after deliberations , the provisions of Articles CARDINAL and CARDINAL apply ( \u00a7 CARDINAL ) . Paragraph CARDINAL provides that copies of a judgment of the court of appeal must be served in accordance with LAW .","In LAW the persons entitled to lodge an appeal in cassation with ORG are listed . That list includes ORG , a defence lawyer ( advokaat ) and other parties ' lawyers .","Article CARDINAL lays down the rules concerning the time - limit for an appeal in cassation . It provides that a court of appeal must be notified in writing of any intention to appeal in cassation within DATE after its judgment or the operative part of its judgment has been pronounced or made available through the court 's office ( \u00a7 CARDINAL ) . An appeal in cassation must be lodged in writing with the court of appeal within DATE of the date when the party to the court proceedings has the opportunity to examine the judgment of the court of appeal ( \u00a7 CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106526","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2011,"docname":"POPOVICI v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nina Vajic","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","By a decision of ORG ( PERSON ) of DATE the applicant was ordered to pay a \u201c first surcharge \u201d for the late payment of his income tax ( erster PERSON ) for DATE . ORG held that the applicant had failed to pay the taxes by their due date of DATE .","By letters dated CARDINAL and DATE the applicant appealed against the decisions regarding the surcharges for income tax for DATE and DATE respectively . The surcharges amounted to PERCENT of the outstanding taxes , totalling MONEY ( ORG ) .","By a decision of DATE ORG ( PERSON DATE \u201c the IFP \u201d ) dismissed the applicant \u2019s appeals as ill - founded and upheld the decision of DATE .","The applicant , who was in receipt of legal aid , complained to ORG ( Verwaltungsgerichtshof ) on DATE , arguing that the law applicable at the time the tax surcharges were due , did not provide for \u201c first surcharges \u201d , but only for \u201c surcharges \u201d .","On DATE the ORG submitted comments on the applicant \u2019s complaint .","On DATE the applicant submitted comments in reply .","By a decision of DATE ORG rejected the applicant \u2019s complaint . It held that while the law in force at the time only provided for ( CARDINAL ) surcharge , and \u201c first \u201d , \u201c second \u201d and \u201c third \u201d surcharges were only introduced by a later amendment to the law , the applicant had not suffered any disadvantage , as the substantive content of the law before and after the amendment was the same . The amount of the surcharge itself was the same under the law in force at the time as the amount of a \u201c first \u201d surcharge under the law after the amendment . It was only their denotation that had changed . The decision was served on the applicant \u2019s counsel on DATE .","On DATE the applicant informed the ORG that by a decision of ORG of DATE , the decision obliging him to pay surcharges had been annulled .","Section CARDINAL of LAW ( Bundesabgabenordnung ) deals with the imposition of surcharges for the late payment of taxes . The provision in force at the material time provided that the surcharge was to be fixed at PERCENT of the amount of tax not paid in time ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72823","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2006,"docname":"DOBROWOLSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by Mr \u0141. Jura , a lawyer practising in GPE . The respondent Government were represented by Mr J. Wo\u0142\u0105siewicz , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG ( FAC ) convicted the applicant of dealing in stolen goods and sentenced him to a sixteenmonth prison term .","The applicant filed an appeal to ORG ( PERSON ) in which he complained about the severity of the sentence .","On DATE ORG informed the applicant that a legal aid counsel had been appointed for him and that an appeal hearing would take place on DATE .","However , counsel never contacted the applicant . The applicant , who was serving a prison sentence in another case , asked that he be brought before the appellate court but his request was refused .","On DATE , after a hearing at which the prosecutor and the applicant \u2019s counsel , but not the applicant , were present , ORG dismissed the applicant \u2019s appeal .","On DATE the applicant asked the ORG to serve him with a copy of the reasoned judgment with the purpose of lodging a cassation appeal with ORG . On DATE the court served him the reasoned judgment .","The applicant failed to lodge a cassation appeal within the time - limit and on DATE the President of ORG of the Pozna\u0144 ORG declared that the judgment was final .","Under LAW of the Criminal Procedure , which entered into force on DATE , a party to criminal proceedings may lodge a cassation appeal with ORG against a final judgment of an appellate court which has terminated the criminal proceedings .","Article CARDINAL \u00a7 CARDINAL of the CARDINAL Code provides , in so far as relevant :","\u201c A cassation appeal may be lodged only on the grounds referred to in LAW [ these include a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of rules governing jurisdiction in criminal matters ; trying a person in absentia where his presence was obligatory etc . ] or on the ground of another flagrant breach of law provided that it could significantly affect the substance of the ruling in question . No cassation appeal may be directed against the severity of the penalty imposed . \u201d","A cassation appeal must be lodged within DATE from the date of notification of the reasoned judgment of the appellate court ( Article CARDINAL of the DATE Code ) .","Pursuant to Article CARDINAL :","The appellate court shall order an accused , who is detained , to be brought to the appellate hearing , unless it finds that the presence of his lawyer is sufficient . If the court decides not to bring to the hearing an accused who has no defence counsel , it shall appoint for him ex officio a legal aid lawyer .","ORG has examined in numerous judgments cassation appeals based on the allegation that the absence of an accused at the appeal hearing was a flagrant breach of law that could significantly affect the substance of the ruling in question , within the meaning of Article CARDINAL of the Code of Criminal Procedure .","ORG on many occasions found that the refusal to bring the accused to the appeal hearing , although not in violation of LAW in force , constituted a breach of LAW CARDINAL and CARDINAL ( c ) of the Convention read in conjunction with LAW . In such cases , ORG quashed the appeal judgment and remitted the case ( judgment of DATE , III KKN CARDINAL\/CARDINAL , judgment of DATE , III KKN CARDINAL\/CARDINAL ) .","The resolution of CARDINAL judges of ORG of DATE ( ORG CARDINAL \/CARDINAL ) dealt with the ORG \u2019s request for clarification of issues relating to the presence of the accused at the appeal hearing in the light of LAW and LAW of the Criminal Procedure . ORG , inter alia , stated :","\u201c ... Finally , it should be underlined , that even if the accused requests to be brought to the appeal hearing , the court may establish that the presence of the lawyer at the appeal hearing would be sufficient . If the accused does not have a counsel , it is necessary to appoint for him a legal aid lawyer whose presence at the hearing would be obligatory . It should however be noted that if an accused deprived of liberty requests to be brought to the appeal hearing , granting such request should be a rule ... Finding that the presence of the lawyer would be sufficient could occur in particular if the appeal hearing concerned only questions of law . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57851","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":1993,"docname":"CASE OF HOLM v. SWEDEN","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Gaukur J\u00f6rundsson","text":["Mr PERSON is a NORP national . He is an economist and resides at ORG in GPE . At the material time , he was employed by ORG ( Sveriges Industrif\u00f6rbund ) .","In DATE the applicant formed together with others a foundation named ORG . According to him its aim was to scrutinise governments of communist regimes in LOC and ORG ( ORG socialdemokratiska arbetareparti - the \" SAP \" ) .","In DATE a publishing house , GPE f\u00f6rlag ORG , published a book entitled \" Till h\u00f6ger om neutraliteten \" ( To the right of neutrality ) . It contained a survey of right - wing organisations and individuals , including a CARDINAL-page chapter on the applicant and his involvement in ORG . The author of the book , Mr PERSON , was then employed by the publisher and had previously served as an ideological adviser to the ORG .","PERSON f\u00f6rlag ORG was , from its foundation in DATE until DATE , owned by the ORG directly . As of the latter date , PERCENT of its shares were held by a company owned by the ORG , namely ORG . PERCENT were held by GPE Centralorganisation which , the applicant states , was controlled by the ORG . GPE f\u00f6rlag GPE is known for publishing books and articles portraying social democratic views .","On DATE the applicant brought a private prosecution for aggravated libel ( grovt f\u00f6rtal ) , and in the alternative for libel ( f\u00f6rtal ) , against Mr Hansson in ORG ( tingsr\u00e4tten ) of GPE , under LAW , section CARDINAL , paragraph CARDINAL , of the CARDINAL Freedom of the Press Act ( tryckfrihetsf\u00f6rordningen , an instrument forming part of LAW ) and LAW , ORG CARDINAL and CARDINAL , of LAW ( brottsbalken ) . In the same proceedings he sued both the author and the publisher for damages , claiming MONEY . He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups , calculated to cast doubt on his honour and to expose him to contempt ; in view of the wide distribution of the book and the applicant \u2019s central position in GPE , the libel was aggravated .","The impugned passages of the book included allegations which can be summarised as follows :","( a ) in DATE the applicant had chaired the youth section of the World Anti - Communist League \u2019s Conference in GPE , an organisation whose membership was said to consist largely of neo - nazis and former ORG - members , for example the then chairman of the NORP - oriented ORG ;","( b ) the applicant had , by reason of his right - wing extremism , been expelled in DATE from ORG and ORG ; it was therefore regrettable that he still held important positions within ORG and the NORP Employers\u2019 Federation ;","( c ) he had been reported to the police for embezzlement of ORG funds ; an audit had shown that he had transferred MONEY from the association \u2019s account to his own account ;","( d ) he had failed to dissociate himself immediately from a co - member of a splinter group of ORG , who had provided grenades to CARDINAL ORG activists and who had urged the latter to place one of the grenades in an office of ORG and advised them on how to enter the office ; the activists had been convicted of having placed the grenades and the applicant \u2019s associate of having aided and abetted causing bodily harm ;","( e ) ORG had been collaborating with the above - mentioned ORG in GPE and GPE and the applicant had negotiated with the latter about the setting up of a local ORG group ;","( f ) organisations like ORG were infiltrated to the highest echelons by neo - nazi groups , which selected the most militant members of such organisations and incited them to engage in illegal activities .","At a sitting held by ORG on DATE , the defendants , but not the applicant , asked for the case to be considered with a jury . As a result of the GPE request , the question whether a criminal offence had been committed was to be examined , according to the provisions of the Freedom of the Press Act , by a jury , composed on the basis of a list of CARDINAL groups of names ( see paragraphs CARDINAL , DATE and DATE below ) . The list , which had been published by ORG ( Stockholms l\u00e4ns landsting ) , indicated the ORG political affiliations . The first group comprised CARDINAL persons , CARDINAL of whom were members of the ORG , CARDINAL of ORG , CARDINAL of ORG , CARDINAL of ORG and CARDINAL of ORG . The second group included CARDINAL names , of whom CARDINAL were members of the ORG , CARDINAL of ORG and CARDINAL of ORG .","The applicant , referring to paragraph CARDINAL of LAW ( r\u00e4tteg\u00e5ngsbalken ) , filed a complaint with ORG under LAW , section CARDINAL , of DATE , asking it to exclude as being disqualified those jurors who were members of the ORG ( see paragraph CARDINAL below ) . In support of his request , he pointed to the position as regards ownership of GPE f\u00f6rlag GPE ( see paragraph CARDINAL above ) and argued that the publisher was the \" mouthpiece \" of the social democratic movement . However , ORG rejected his request on DATE , finding that , regardless of whether the publisher could be seen as a \" mouthpiece \" as described by the applicant , the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned .","In an appeal against this decision to ORG ( PERSON ) , the applicant submitted , in addition to the above arguments , that the contents of the book were of a political nature and that the case had political undertones . ORG dismissed the appeal on DATE , without stating any reasons . It was not open to the applicant to appeal further against this decision ( LAW , section CARDINAL , of the Freedom of LAW ) .","In the meantime , at the above - mentioned sitting on DATE , ORG proceeded with the constitution of the jury in accordance with LAW of the Freedom of LAW . Exercising their right under section CARDINAL , the applicant and the defence each rejected CARDINAL jurors from the first group and CARDINAL from the second group . Those eliminated by the applicant were all ORG members and those by the defendants were members of ORG . Lots were drawn in accordance with the procedure described in paragraph CARDINAL below , and a jury of CARDINAL members was constituted . Of these , CARDINAL were members of the ORG - one of the them was subsequently replaced by another ORG member - , CARDINAL of ORG , one of ORG and CARDINAL of ORG .","As appears from information submitted by the applicant , which was not contested by the Government , the ORG jurors were active members of the ORG , holding or having held various offices in it and on its behalf at local level ( for further details , see paragraph CARDINAL of the Commission \u2019s report ) .","On DATE , ORG , sitting with CARDINAL judges and a jury of CARDINAL , examined the merits of the case . In its judgment of DATE the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book . Accordingly , ORG dismissed the charges made by the applicant and his claims for damages . In view of the conclusions reached on the merits , it ordered him to pay MONEY in costs .","It was not possible under NORP law for the applicant to appeal against the jury \u2019s verdict ( see paragraph CARDINAL below ) .","In GPE freedom of expression as regards the printed word is regulated by the DATE Freedom of the Press Act , which has constitutional status . The first such LAW dates back to DATE . The jury system was introduced when a revised version of the LAW entered into force in DATE . The merits of the system underwent a thorough examination in the course of the revision which led to the DATE version of the LAW . However , the predominant view was that the jury system constituted an important safeguard of press freedom in GPE and that it should be maintained . For similar reasons , more recent proposals to abolish the jury system have also been resisted .","LAW of the LAW contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print ( section CARDINAL ) . These cases are heard by ORG within whose jurisdiction the county administration has its seat ( LAW , section CARDINAL ) . It sits with CARDINAL judges and , in proceedings brought under the LAW , also with a jury of CARDINAL members to examine whether a criminal offence has been committed or whether civil liability has been incurred , unless the parties on both sides declare their willingness to have the issue determined by the court without a jury ( sections CARDINAL and CARDINAL ) . In any event , matters such as evidence , sentencing , damages and legal costs are dealt with by the judges alone .","In a jury trial ORG is presided over by a judge . If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred , the defendant must be acquitted or the case must be dismissed . If the reply is in the affirmative - and this requires a majority of CARDINAL members - the issue is to be examined also by the judges . Should they disagree with the jury , they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or , in civil proceedings , dismiss the case ( sections CARDINAL and CARDINAL ) .","A judgment by ORG may be appealed against to ORG , whose jurisdiction , like that of ORG , is limited by the terms of the jury \u2019s verdict ( LAW , LAW ) .","LAW , section CARDINAL , provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society ; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented ; where there is doubt , he should acquit rather than convict .","In each county the county council , alone or in some cases together with the municipal council , elects jurors for a term of DATE ( LAW , section CARDINAL ) . They are divided into CARDINAL groups , CARDINAL of CARDINAL jurors and the other of CARDINAL , the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts ( section CARDINAL ) . The names of jurors are entered on a list in which each of the CARDINAL groups are listed separately ( section CARDINAL ) .","Only NORP citizens residing in GPE are eligible for election as jurors . A further condition is that they be known to be independent and fair - minded and to have sound judgment . Different social groups and currents of opinion as well as geographical areas should be represented among the jurors ( section CARDINAL ) . In practice , jurors are normally elected from among people who have been politically active .","In proceedings involving a jury , ORG presents the above - mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors ( LAW , section CARDINAL ; see also paragraph CARDINAL below ) . Thereafter , each party is given the opportunity to exclude CARDINAL jurors in the first group and CARDINAL from the second . Subsequently , ORG , by drawing lots , selects the substitute members until there remain CARDINAL jurors in the first group and CARDINAL jurors in the second group ; these CARDINAL jurors become full members of the jury ( LAW , section CARDINAL ) .","LAW , LAW , of ORG ( regeringsformen ) , which forms part of LAW , provides that neither a public authority nor ORG may determine how a court should adjudicate or apply the law in a particular case . Moreover , all public power must be exercised subject to the law ; courts and public authorities shall , in the performance of their functions , ensure the equality of all persons before the law and remain objective and impartial ( LAW , sections CARDINAL and CARDINAL ) . These fundamental principles apply also to a jury sitting in a trial under LAW .","The statutory rules on disqualification of judges extend to jurors ( LAW , section CARDINAL , of the Freedom of LAW ) . LAW , LAW , of LAW enumerates a series of specific grounds on which a judge may be disqualified : for instance , where he is a party in the case or otherwise has an interest in its subject - matter or can expect special advantage or damage from its outcome ; or where he is related through family or marriage to someone in such a position ; or has been involved in the case as judge , or as lawyer or adviser to CARDINAL of the parties or as witness or expert . Pursuant to the last provision of this LAW , paragraph CARDINAL , which was the one relied on by the applicant in the domestic proceedings , a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case .","According to section CARDINAL of the DATE Act containing certain provisions on Proceedings relating to LAW med vissa best\u00e4mmelser om r\u00e4tteg\u00e5ngen i tryckfrihetsm\u00e5l ) jurors must take the following oath before participating in a trial :","\" I , ORG , solemnly swear and declare on my faith and honour that , as a member of this jury , I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury \u2019s deliberations and how the jurors have voted . This I will and shall faithfully observe as an honest and upright judge . \"","Clause CARDINAL of the ORG \u2019s articles of association provides that a member may be excluded if he is disloyal to the ORG , disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests . ORG candidates for public office are required to contribute through their office to the implementation of the ORG \u2019s programme . Other political parties have similar rules .","On the other hand , none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror . It appears from the legislation summarised in paragraphs CARDINAL above and the preparatory works to the DATE Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge ( see ORG offentliga utredningar - \" ORG \" CARDINAL , p. CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82410","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2007,"docname":"BALYUK v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and resides in the town of GPE , GPE , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agents , PERSON and Mr PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant instituted proceedings in ORG against PERSON , a private person , seeking recovery of a debt .","On DATE the court restricted Mr S. \u2019s right to dispose of his property in order to secure the applicant \u2019s claim . However , on CARDINAL DATE some of PERSON property ( part of an apartment ) was sold to PERSON","On DATE the court found for the applicant and awarded him CARDINAL NORP hryvnas ( ORG ) against PERSON On DATE ORG upheld this judgment and it became final .","The judgment of DATE was not enforced allegedly due to PERSON lack of funds .","In DATE the applicant instituted proceedings in the same court against Mr S. , PERSON and ORG No . CARDINAL , seeking to invalidate the apartment sales agreement . On DATE the court found that the agreement was valid . In particular , the court found that the injunction on the sale of the disputed apartment had only been forwarded to the notary on DATE and therefore , at the material time , the notary had acted in good faith . On DATE ORG upheld this judgment .","By letters of CARDINAL May and DATE , ORG informed the applicant that , because of the court \u2019s negligence , the decision of CARDINAL DATE had only been received by ORG and the notary on DATE .","In DATE the applicant instituted proceedings in ORG against ORG for an allegedly improper enforcement of the judgment of DATE . On DATE the court rejected the applicant \u2019s complaint for having been submitted out of time . On DATE the ORG quashed this decision and remitted the case for a fresh consideration .","On DATE the court returned the applicant \u2019s complaint without consideration because it did not comply with the procedural requirements prescribed by law . The applicant neither appealed against this decision , nor lodged his complaint anew .","On DATE the applicant revoked the writ of enforcement and the enforcement proceedings were closed . The applicant states that there was no sense in continuing the enforcement proceedings because ORG was inactive and PERSON had no assets to seize .","At the material time LAW provided that a decision to secure a claim should be enforced immediately in accordance with the procedure for the enforcement of judgments ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92810","languageisocode":"ENG","respondent":"GEO","branch":"ADMISSIBILITY","date":2009,"docname":"DAVITASHVILI v. GEORGIA","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant had worked , under a contract of indefinite duration , as a laboratory assistant in a tuberculosis hospital since DATE . By an order of DATE , the hospital administration ( \u201c the respondent \u201d ) dismissed her .","The applicant sued for unlawful dismissal and , in a judgment of CARDINAL DATE , the ORG in GPE found in her favour .","Enforcing the terms of the above judgment , the respondent issued , on DATE , an order reinstating the applicant to her previous position .","On DATE the respondent offered , and the applicant accepted , an employment contract for DATE .","On DATE the respondent notified the applicant that her contract would expire on DATE and that no extension was possible .","On DATE the applicant filed another action , requesting , inter alia , that the respondent be ordered to re - employ her . She claimed that she had signed the DATE contract by mistake .","On DATE the ORG , overturning a lower instance decision , found for the applicant , ordering the respondent to offer her a contract of indefinite duration , as the situation had stood prior to her unlawful dismissal of DATE . The appellate judgment noted , in its operative part , that a cassation appeal lay within DATE following delivery of its motivated copy to the parties .","On DATE the respondent lodged a cassation appeal .","On DATE ORG allowed the respondent \u2019s cassation appeal , by quashing the appellate judgment of DATE and dismissing the applicant \u2019s employment action of DATE . The cassation court established that the ORG binding decision of CARDINAL DATE had been properly enforced , in so far as the respondent had duly issued , on DATE , an order reinstating the applicant to her permanent position . It was only subsequent to that reinstatement that the respondent had offered her an employment contract for DATE , which she had accepted herself . ORG noted in that regard that LAW did not preclude employers and employees from replacing a permanent labour relation with that of a definite duration . Nor did the labour legislation impose upon employers an obligation to extend contracts of limited duration against their will .","Throughout the second set of proceedings , a labour union of which the applicant was a member submitted to the domestic courts legal arguments on her behalf .","Pursuant to LAW ( \u201c the ORG \u201d ) , if a cassation appeal had not been lodged within the statutory period , the appellate judgment became binding .","Subsequent to LAW ORG , the period for lodging a cassation appeal , which could not be either restored or extended , was DATE . That period started to run from the moment of delivery of the appellate judgment to a party in question . Delivery was made either by handing a copy of the appellate judgment or its communication by registered post to a party .","Article CARDINAL \u00a7 CARDINAL of the ORG further stated that , if the appellate court had orally pronounced the reasoned text of its judgment in the presence of a party concerned , the period for lodging a cassation appeal started to run upon pronouncement ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114279","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2012,"docname":"TRIFONTSOV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["NORP The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON and PERSON , lawyers practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by Mr P. GPE , the former Representative of GPE at ORG , and then by PERSON , their Representative at ORG . The facts of the case , as submitted by the parties , may be summarised as follows .","At the relevant time the applicant was working as a police investigator . He was in charge of a criminal case against ORG , a student suspected of illegal possession of drugs . The case against ORG was opened on DATE .","According to the official account of events , in DATE the applicant repeatedly contacted ORG \u2019s parents offering to close the case against their son in exchange for payment of a certain sum of money . The applicant \u2019s father , PERSON , tentatively agreed . However , some time later PERSON , having discussed the matter with his wife , decided to report the applicant and secretly recorded their conversations on several audiotapes . On DATE ORG informed ORG ( hereinafter the \u201c ISS \u201d ) of the offer he had received from the applicant . He gave them the audiotapes at DATE . It is unclear when those recordings were made and what they contained .","The applicant claimed that he had been incited by ORG to take the money . He also maintained that ORG had been acting on ORG orders , and that the ORG had instructed ORG to make him accept the deal and to secretly record their conversations .","The ORG \u2019s first official record of ORG \u2019s statement reporting the applicant was dated DATE . To the extent that ORG \u2019s statement is legible ( the record of his questioning is hand - written ) , it can be summarised as follows . According to ORG , in DATE the applicant solicited a bribe from ORG mother . In DATE the applicant made a similar approach to PERSON The applicant allegedly asked for MONEY ( US$ ) , which were supposed to go to a supervising prosecutor . PERSON claimed that he had taped some of his conversations with the applicant on his own initiative .","On DATE , the ORG conducted a covert operation targeting the applicant . They equipped FAC with a radio - transmitting device connected to a tape - recorder and instructed him to record his conversation with the applicant . They also gave ORG money to be handed over to the applicant , and recorded the serial numbers of the banknotes in a document , signed by CARDINAL attesting witnesses \u2013 soldiers from a nearby military base .","Again on DATE PERSON called the applicant , who told PERSON that they should meet at the regional ORG . They met there at TIME and discussed the deal . Their conversation was recorded by the ORG through the radio transmitter . In the course of the conversation , the applicant reproached PERSON for having brought MONEY , namely CARDINAL the amount agreed earlier . PERSON replied that he would bring DATE . The applicant also asked PERSON whether he had told anybody about their deal . PERSON replied in the negative . The applicant then asked PERSON to leave the money on a table , in a plastic bag . When PERSON had done so , the applicant gave him an official note signed by the applicant and confirming that the case against ORG had been closed .","As soon as the applicant left the building , ORG contacted the ORG officers , who were waiting nearby and informed them that the money had been handed over . The ORG officers immediately apprehended the applicant , but found that he was not in possession of the money . They then searched the LOC where FAC had met the applicant and found the money in a plastic bag , hidden in the corridor . The serial numbers on the banknotes found there corresponded to those on the banknotes received by MONEY from the ORG . The ORG officers drew up a report of the search of the place of the incident , which was attested by the same CARDINAL witnesses . The applicant was questioned and arrested . The case was then transferred to the regional ORG , and on DATE the applicant was formally charged with taking a bribe . Material obtained by the ORG during the covert operation was declassified and attached to the criminal case file . On DATE the prosecution sent the case with a bill of indictment to ORG .","In the course of the trial the applicant pleaded not guilty and alleged that it was PERSON who had offered him money . The applicant did not deny that he had agreed to take the money but claimed that his real intention had been to report PERSON as a briber . He had arranged for the meeting to take place at ORG in order to report him to his friends who worked there . The applicant also claimed that the tape recorded on DATE and the search report should not have been admitted in evidence .","NORP The prosecution insisted that the applicant had extorted money from FAC In support , they produced the report of \u201c the search of the place of the incident \u201d ( namely the corridor where the money had been discovered in a plastic bag ) . They also produced the report of an expert examination of the fingerprints on the plastic bag , according to which the fingerprints belonged to the applicant . A record of the conversation of DATE between the applicant and PERSON was also presented to the court . Finally , the prosecution submitted the official note signed by the applicant certifying that the case against ORG was closed ..","NORP The court heard several witnesses . PERSON testified that the applicant had offered to discontinue the proceedings against his son in exchange for a sum of money . His testimony was corroborated by ORG , who testified that in DATE his father had told him about the offer made by the applicant . Another witness , PERSON \u2019s wife , stated that she had known about the deal and had persuaded her husband to inform the ORG about it . The court also examined the ORG officers involved in the operation . They confirmed that ORG had informed them about the offer made by the applicant . The applicant \u2019s immediate superiors and colleagues were also examined . They claimed that the applicant had never told them that PERSON had offered him money to close the criminal case against ORG","The court also examined the record of the applicant \u2019s first questioning and noted that the applicant had not referred to \u201c incitement \u201d when questioned . The court also heard the CARDINAL attesting witnesses who had been present on DATE during the preparation of the covert operation and during the search of the premises of the regional ORG . They confirmed the accuracy of the reports drawn up by the ORG .","Finally , the court listened to the tape recording made secretly during the meeting between PERSON and the applicant on DATE , examined the transcript of the tape and studied the official note concerning the closure of the criminal case against ORG","On DATE ORG found the applicant guilty of taking a bribe and sentenced him to CARDINAL years\u2019 imprisonment .","The applicant appealed . He maintained that ORG officers had framed him . He submitted that the ORG should have first obtained ORG \u2019s written statement , then opened an inquiry or instituted criminal proceedings , but that none of that had been done . The applicant also contested the admissibility and authencity of the tape recording of his conversation with V.K .. He also contested the admissibility of the search report . He submitted that those pieces of evidence had been obtained in breach of the law . Furthermore , the applicant challenged the veracity and consistency of statements of the witnesses who had testified against him .","On DATE ORG of GPE upheld the decision of ORG and confirmed the findings of the first - instance court as to the facts of the case . It also noted that the operation that had led to the applicant \u2019s arrest had been carried out in conformity with the applicable legislation . The material obtained by the ORG had been duly incorporated in the body of evidence . Furthermore , in accordance with criminal procedure rules , the ORG had the right to search LOC without waiting for an investigator from ORG .","For relevant provisions of ORG of DATE , as in force at the material time , see PERSON v. GPE [ ORG ] , no . CARDINAL\/CARDINAL , \u00a7 DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70853","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF  GONGADZE v. UKRAINE","importance":1,"conclusion":"Preliminary objection dismissed (Six-month period);Violations of Art. 2;Violation of Art. 3;Violation of Art. 13;Pecuniary and non-pecuniary damage, costs and expenses - financial award","judges":"","text":["The applicant was born in DATE and lives in GPE , GPE .","PERSON , the applicant 's husband , was a journalist . He disappeared on DATE in circumstances that have not yet been fully established by the NORP authorities despite the numerous demands and requests of the applicant . Recently , however , several police officers were charged with the kidnap and murder of Mr PERSON .","Mr PERSON was a political journalist and the editor - in - chief of ORG , an online newspaper . He was known for his criticism of those in power and for his active involvement in awareness - raising in GPE and abroad as regards the problems of freedom of speech in his country . He reported on such topics as the allegedly undemocratic initiatives of the NORP authorities and corruption amongst high - level ORG officials .","For DATE before his disappearance Mr PERSON had been telling his relatives and colleagues that he was receiving threats and was under surveillance .","On DATE Mr PERSON wrote an open letter to the Prosecutor General making the following complaints :","( i ) His relatives and friends in the city of GPE , and his colleagues in GPE , had been interviewed by law enforcement officers about him . The pretext for holding these interviews had been an inquiry into a criminal incident in GPE in which PERSON had allegedly been involved . ( The applicant maintained that PERSON had known nothing about the incident or the people involved in it . He himself had never been interviewed about it . )","( ii ) For some time , unknown persons in a car with the number plate CARDINAL PERSON had been following Mr PERSON from his home to his office and back .","In his open letter , PERSON requested ORG to take measures to protect him from what he described as \u201c moral terror \u201d , and to find and punish those involved .","NORP In response , ORG sent the letter to the regional prosecutor 's office in GPE , where PERSON was officially registered as a resident ( propiska ) . The PERSON prosecutor replied that the places and streets ( of GPE ) mentioned in Mr PERSON 's letter were unknown in GPE .","Later , the then Minister of the ORG told representatives of the non - governmental organisation \u201c Reporters sans fronti\u00e8res \u201d ( as recounted in the latter 's report of DATE ) that the car registration plate had been stolen from a police vehicle in DATE .","On DATE ORG ( \u201c the ORG \u201d ) informed PERSON that there were no grounds for the adoption of any decision under LAW ( protective measures during criminal proceedings ) regarding his letter .","Mr PERSON disappeared on DATE .","On DATE the applicant reported her husband 's disappearance to ORG in GPE .","On DATE ( DATE , according to ORG ) the ORG district prosecutor 's office initiated an inquiry into a case of premeditated murder ( the \u201c PERSON case \u201d ) . The inquiry included a search of the places where PERSON had last been seen and interviews with people who had been there at the time . The applicant maintained that the investigating prosecutor in charge of the case , PERSON , had seemed to be conducting a serious investigation . However , he was replaced at DATE by another prosecutor , PERSON","On DATE the decapitated body of an unknown person was discovered in the vicinity of the town of Tarashcha , in GPE .","On DATE the NORP regional prosecutor 's office initiated an inquiry into the murder of an unidentified person ( the \u201c Tarashcha case \u201d ) .","The first autopsy of the corpse was performed by a local expert and the findings were presented on DATE . According to these findings , the time of death of the unknown person roughly corresponded to the time of the disappearance of PERSON .","On DATE relatives learned from a brief article in the newspapers about the discovery of an unidentified body in the vicinity of GPE . On DATE , on examining the body , they identified jewellery belonging to Mr PERSON and the marks of an old injury to the body that corresponded to that of the missing journalist . The contents of the stomach corresponded to the food which Mr PERSON had eaten on DATE of his disappearance . The relatives took a fragment of skin from the body to be examined by independent experts .","From DATE , the prosecutor allegedly began actively to impede the investigation . On DATE the body was removed from the morgue in GPE . DATE the GPE regional prosecutor 's office admitted that the body had been transferred to GPE . All documents relating to the first forensic examination conducted in PERSON were confiscated . The local expert was prohibited from talking about the autopsy of the body and later became the subject of criminal proceedings . On DATE the Deputy Minister of the ORG announced that , contrary to the preliminary findings , the body which had been discovered had been buried in the ground for DATE .","On DATE the applicant requested the investigator at the ORG district prosecutor 's office","( i ) to recognise her as a civil party to the proceedings in the PERSON case ;","( ii ) to identify the body and the jewellery found with it ; and","( iii ) to organise a forensic medical examination in order to establish whether the body found in PERSON was that of her husband .","On DATE the investigator rejected this request .","DATE the applicant also requested the prosecutor of GPE not to cremate the body found in PERSON and to let her bury it if the body were to be identified as that of her husband .","On DATE the ORG district prosecutor 's office recognised the applicant as a civil party in the PERSON case .","On DATE the head of the investigation department of the GPE regional prosecutor 's office informed the applicant that a criminal investigation into the murder of the unidentified person had been initiated and that a forensic medical examination had been organised . However , there were no grounds to recognise the applicant as a civil party in the PERSON case . They promised to keep the applicant informed as to her possible participation in the identification of the objects found with the body . Accordingly , the applicant was not allowed to participate in the identification of the body at that stage .","On DATE the applicant asked the ORG to be allowed to participate in the identification of the body and requested that the CARDINAL sets of proceedings be joined .","On DATE ORG announced that DNA analysis could not be done for the time being because PERSON , the deceased 's mother , was ill . This statement was denied by the latter herself . ORG then declared that he had been misunderstood .","On DATE , DATE after the body had been discovered , the applicant was allowed to participate in its identification . Being under stress , she was unable to make a positive identification of the body as being that of her husband .","On DATE a blood sample was taken from the deceased 's mother for DNA analysis .","On DATE the applicant requested ORG to involve foreign experts in the investigation of the case under LAW of DATE .","On DATE the Prosecutor General announced that the body found in PERSON was not that of PERSON .","On DATE the ORG refused the applicant 's request to involve foreign experts in the DNA analysis and informed her that the NORP institutions were empowered to conduct all necessary examinations .","Later , several DNA analyses were conducted in the case , including by foreign experts . The forensic medical examinations conducted by the NORP and GPE specialists confirmed that it was highly probable that the body found in PERSON was that of PERSON . However , within the framework of an investigation conducted by an ad hoc parliamentary committee , an examination conducted by NORP specialists did not confirm this finding .","The applicant maintained that she had never been informed directly by the investigating authorities about the results of these examinations , but had learned about them from the media .","On DATE the Prosecutor General informed ORG of the provisional findings of the forensic medical examination conducted by the NORP experts , which showed that the body found in PERSON was that of PERSON ( PERCENT probability ) . Nevertheless , the identity of the body could not be confirmed as there were witnesses who claimed to have seen Mr PERSON alive in PERSON after his disappearance , in DATE . This information had been checked but was also not confirmed .","On DATE the applicant and the deceased 's mother requested the ORG to recognise them as civil parties in the PERSON case and to conduct another examination of the body . The same day the applicant was informed by ORG that her status as a civil party , which had been granted by the ORG district prosecutor 's office on DATE , was annulled . The applicant lodged a complaint with the ORG of GPE .","On DATE the ORG rejected the applicant 's request to be recognised as a civil party , stating that it had not been established beyond all doubt that Mr PERSON was dead or that the body found in PERSON was his .","On DATE the ORG recognised the right of the applicant and the deceased 's mother to be civil parties and ordered the ORG to grant them this status . However , despite the order , the ORG again refused this status on DATE . Exceptionally , the ORG agreed to give them the Tarashcha body for burial , whilst emphasising that the ORG was not competent to issue a death certificate .","Also on DATE the editor - in - chief of the PERSON newspaper made public the names of CARDINAL policemen who had allegedly participated in the surveillance of PERSON .","The applicant and the deceased 's mother challenged the refusal to grant them aggrieved - party status in the Pechersky District Court . On DATE that court found that the ORG 's decision was illegal . The ORG appealed .","On DATE the investigators severed a defamation case involving a Mr PERSON from the PERSON case ( see PERSON v. GPE , no . CARDINAL , \u00a7 CARDINAL , ECHR CARDINAL-X ) .","Despite its appeal , on DATE the ORG recognised the status of the applicant and the deceased 's mother as civil parties in the light of further forensic evidence . ( The applicant maintained that this was done under the influence of Resolution CARDINAL ( CARDINAL ) of ORG of ORG , adopted on DATE , which called on the authorities to conduct \u201c an expeditious , full and transparent investigation into the disappearance or death of PERSON , and to make known the results of the investigation as quickly as possible ; ... to respect the rights of the victim 's relatives , including their right to be the aggrieved side in the case of PERSON death \u201d . )","On DATE the ORG informed the applicant that additional evidence had confirmed that the body found in PERSON was that of PERSON PERSON . An investigation into the murder of PERSON was initiated , and the applicant and the deceased 's mother were granted the status of aggrieved parties .","On DATE the applicant requested ORG to give her access to the case - file material concerning the forensic medical examination of the body . On DATE the investigating officer refused , stating that it was part of the preliminary investigation and the applicant could only have such access when the preliminary investigation was over . The applicant 's lawyer unsuccessfully challenged this refusal in the ORG of GPE .","On DATE the applicant lodged a complaint with the ORG of GPE alleging negligence by the investigators .","On DATE the investigator carried out an inspection of the Tarashcha body in the presence of the deceased 's mother and her lawyer , and the applicant 's lawyer . An additional forensic examination and a genetic identification test were carried out by GPE specialists . The joint examination by GPE and NORP experts confirmed that the PERSON body was that of PERSON .","DATE . On DATE the applicant requested full access to the case file , which was refused on CARDINAL DATE pending the pre - trial investigation .","On CARDINAL DATE the Minister of the ORG announced that the CARDINAL presumed murderers of PERSON , identified as drug users , had died and that the case was therefore solved . The Minister further stated that the murder had been spontaneous , with no political motive . On DATE the ORG contradicted this announcement and recommended that the Minister refrain from disclosing any information about the criminal investigation .","On DATE the applicant requested the ORG to confirm the Minister 's statement and to inform her as to when she would be allowed access to the case file . DATE the ORG informed the applicant that important additional information had been obtained and needed further examination , and that it would therefore be premature to say that the preliminary investigation was over .","On DATE the applicant requested the ORG to involve experts from ORG ( ORG ) in the investigation . Her request was refused on DATE .","By a letter of CARDINAL DATE , the ORG authorised ORG to deliver the remains of PERSON to his relatives for burial . A copy of this letter was handed to the representative of the deceased 's mother and sent by mail to the applicant 's representative . On DATE the forensic office informed the deceased 's mother that she could take the body away for burial . However , according to the ORG , the body was still in ORG , although the burial decision remained exclusively with the deceased 's mother and the applicant .","On DATE the applicant 's representative requested access to the results of all the forensic examinations in the case file . She also asked when the preliminary investigation would be finished . On DATE the ORG replied that it was not yet possible to say .","In a further reply of DATE , the ORG stated that the representative of an aggrieved party had a right of access to the results of forensic examinations , but only after the pre - trial investigation had been completed . According to the Government , the ORG noted that the representative had had access to the results of the forensic examinations and genetic tests within the limits permitted by the confidentiality of the investigation .","On DATE ORG informed the applicant that her negligence claim against the investigators , lodged on DATE with the ORG of GPE , had not been registered and could not be found . ORG advised the applicant to lodge the complaint again with that court .","On DATE the applicant requested the ORG to provide her with information about the forensic medical examination conducted by the ORG and the reasons for the contradictory findings of the forensic medical examinations conducted by the NORP and NORP experts . She requested that an additional forensic medical examination be held to answer these questions .","On DATE the applicant was informed by the ORG that the case file could not be disclosed before the end of the preliminary investigation and that the preliminary investigation would be finalised when the person guilty of the crime had been found .","On DATE the ORG stated that the forensic medical examinations had established that the body found in PERSON was that of PERSON PERSON . It further informed the applicant that the results of the forensic medical examination conducted by the NORP experts could not be included in the case file , as the tissue samples for that examination had been taken by an unauthorised person in breach of established procedures .","On DATE ORG again informed the applicant that her negligence claim against the investigators , lodged with ORG of Kyiv , had not been registered and could not be found . ORG advised the applicant to lodge the complaint again with ORG .","On DATE the applicant lodged a complaint with the ORG of GPE about the ORG 's refusal to allow her access to the case - file material concerning the forensic medical examination of the body .","On DATE the Pechersky District Court held that the applicant 's complaint against the ORG could not be considered prior to the transfer of the case to the court . It decided to attach the complaint to the case file for consideration at DATE . The court stated that LAW did not provide for a separate appeal against the investigators on the ground of their refusal of access to the case - file material relating to the forensic medical examination .","On DATE ORG in GPE refused to issue a death certificate for PERSON in the absence of any document confirming his death .","On DATE the applicant requested Mr PERSON , the Secretary - General of \u201c Reporters sans fronti\u00e8res \u201d , to be her representative in the case .","On DATE , while the power of attorney for this purpose was being prepared , ORG requested the ORG , on behalf of the deceased 's mother who was also a civil party to the case , to interview the CARDINAL police officers named in the press as having followed Mr PERSON . He further requested access to the case - file material concerning the forensic medical examinations , and asked for another examination by foreign experts . His request was not answered .","Another request by ORG on DATE was refused by the ORG on DATE on the ground that he could not be recognised as the representative of the civil party . On DATE Mr M\u00e9nard asked the ORG to annul that decision .","On DATE a new Prosecutor General was elected , who confirmed on DATE that there had been numerous irregularities in the previous investigation .","DATE . On DATE the Prosecutor General announced an investigation into the alleged falsification of procedural documents by the prosecutor and investigator from the town of Tarashcha .","On DATE \u201c Reporters sans fronti\u00e8res \u201d requested access to all the forensic results in the case file and their examination by an independent expert . They also requested information about the identity of the CARDINAL persons who had followed Mr PERSON before his disappearance .","NORP In DATE a new forensic examination took place in GPE . On DATE \u201c Reporters sans fronti\u00e8res \u201d announced that the last DNA test had unequivocally identified the body as that of Mr PERSON .","In DATE the prosecutor from the Tarashcha district prosecutor 's office was arrested and charged with negligence in the investigation of the case . On DATE the prosecutor was sentenced to DATE imprisonment but absolved from serving the sentence by ORG of Kyiv under an amnesty law .","On DATE the chairman of the parliamentary ad hoc committee on the PERSON case announced that the persons responsible for the death of PERSON were members of the police .","On DATE ORG requested the ORG to investigate the possible role of PERSON , who had been Minister of the ORG at the time of the disappearance of PERSON , in the death of the journalist . This request was supported by CARDINAL members of parliament .","On DATE the Prosecutor General , PERSON , declared that they were checking the information about the involvement of senior officials of ORG in the death of PERSON .","On DATE the Prosecutor General openly criticised his predecessor , Mr PERSON , for impeding the investigation into the murder of Mr PERSON .","DATE . In DATE a former police officer , PERSON , was arrested and charged with setting up a criminal group with the participation of the police . He died in prison on DATE in unclear circumstances . His lawyers maintained that he had been beaten and tortured . The body of PERSON was cremated on DATE without an autopsy .","On DATE the letters of the late Mr G. appeared in the media . In these letters he accused the police and senior officials of kidnapping and killing PERSON . These letters , and the documents attached to them , were sent to the ORG .","On DATE the ORG confirmed that the handwriting of the letters was that of the late PERSON","On DATE Lieutenant - General PERSON , an official of ORG , was arrested on suspicion of involvement in the disappearance of PERSON . He was accused of ordering the destruction of important documents in the case .","On DATE the Prosecutor General , PERSON , was dismissed by the President .","On DATE the ORG released Mr GPE on his undertaking not to abscond .","On DATE the applicant was allowed to have access to the criminal case file .","The applicant noted that , since DATE , CARDINAL journalists had been killed in GPE .","The applicant maintained that the political situation which had developed after the disappearance of her husband illustrated the attitude of the NORP authorities towards freedom of the press .","Soon after the disappearance of PERSON , the President of GPE had promised to employ every means to find him . After a motion voted by ORG , the President had assigned CARDINAL law enforcement agencies \u2013 the ORG , the police and the security services \u2013 to work on the case .","On DATE an anonymous person called the embassy of GPE in GPE with the information that the responsibility for the disappearance of the journalist lay with PERSON , the notorious leader of a criminal group , and with the Minister of the ORG and an MP , PERSON . The Ambassador of GPE , who made the contents of the call public , was recalled to GPE DATE . The NORP authorities denied any link between the CARDINAL events .","At DATE ORG created an ad hoc committee to investigate the disappearance of PERSON . The Prosecutor General refused to collaborate with the committee as its request to interview experts and officers was considered unconstitutional .","On DATE the Chairman of ORG , Mr Moroz , publicly announced the existence of audio tapes , secretly made in the office of the President , implicating President PERSON and other high - level ORG officials in the disappearance of PERSON . In CARDINAL of the recorded conversations , allegedly between the President and the Minister of the ORG , the President had asked for PERSON to be threatened . The Minister had then proposed certain people whom he called \u201c real eagles \u201d , capable of anything , to do the job .","The applicant maintained that , due to doubts as to the quality of the tapes , it was not possible to establish their authenticity , although a GPE laboratory ( BEK TEK ) confirmed that they were genuine . She referred to the report of DATE by \u201c Reporters sans fronti\u00e8res \u201d that testified to the existence of special forces in the police , and groups of retired police officers recruited by the mafia who would commit acts of violence against political figures or journalists .","After the disappearance of PERSON , many news media experienced pressure and censorship over their coverage of the case .","On DATE CARDINAL opposition supporters demonstrated in memory of PERSON .","NORP The case of the disappearance of PERSON attracted the attention of many international organisations . It was analysed in the context of the lack of freedom of the media in GPE , which had been criticised for DATE at international level .","On DATE ORG of ORG PACE ) adopted Resolution DATE ) expressing its concern about \u201c the intimidation , repeated aggression and murders of journalists in GPE and the frequent abuse of power by the competent NORP authorities in respect of freedom of expression \u201d . It further stated that the investigation into the disappearance of PERSON should be considered as a test for freedom of expression and the functioning of parliamentary democracy in GPE \u201d .","A plea for a speedy and transparent investigation into all cases of violence against and the death of journalists , particularly in the PERSON case , was repeated in PACE Recommendation CARDINAL ( DATE ) of DATE , Resolution CARDINAL ( DATE ) and Recommendation DATE ) of CARDINAL DATE and Resolution CARDINAL ( DATE ) of DATE .","Similar pleas were made by ORG in a statement on DATE , and by ORG of ORG in LOC ( OSCE ) in its resolution of DATE . ORG also awarded the DATE OSCE Prize for Journalism and Democracy to PERSON posthumously .","The case of the disappearance of Mr PERSON was reported in the documents of certain ORG bodies : ORG and ORG .","\u201c Reporters sans fronti\u00e8res \u201d conducted its own investigation into the disappearance of PERSON , the results of which were published in the special report of DATE mentioned above . It concluded that the investigating authorities had been mainly preoccupied with proving the innocence of high - level ORG officials .","On DATE the report of Mr PERSON , Deputy Secretary General of ORG , was presented to PACE . The documents attached to the report confirmed that , prior to the appointment of a new Prosecutor General on DATE , the investigation had been ineffective , although later developments had raised hopes of more efficacy . According to the applicant , the further developments in the investigation demonstrated that the hopes expressed had been premature .","On DATE ORG made a declaration in which concern was expressed at the lack of progress in the investigation .","The issue of the effectiveness of the investigation in the case was similarly raised by ORG and by ORG .","On DATE several international non - governmental organisations published a report about the progress of the investigation in the PERSON case . They maintained that the ORG , supported by the President , had tried to limit the investigation and had not made enough efforts to find and prosecute the instigators of the kidnap and murder of PERSON PERSON . They further criticised the NORP authorities for serious setbacks in the investigation , in particular :","\u201c \u2013 the disappearance of Lieutenant - General PERSON ; the leaking of information that disrupted the work of NORP and NORP agencies who were preparing to detain him ; the lack of any public scrutiny of that potentially criminal action ; and the absence of any investigation into the process by which Lieutenant - General PERSON was previously released and the GPE case closed in DATE ;","\u2013 the death of former Minister of the Interior Mr PERSON , who could have provided important information about the link between the conversations recorded by PERSON and the murder ; and the lack of any public scrutiny of the possible negligence of the ORG in its handling of the PERSON case and in protecting him as a witness ;","\u2013 the failure to interview numerous witnesses in the Ministry of the ORG with a knowledge of the system of surveillance operated there ; and the failure to investigate thoroughly the links between the ' werewolves ' and PERSON cases with the PERSON case ;","\u2013 the failure to resolve the problems surrounding the PERSON tapes , with a view to using them as primary evidence in court , caused mainly by the mistakes and sluggishness of the ORG ;","... \u201d","On DATE the ORG district prosecutor 's office of GPE instituted a criminal investigation , pursuant to LAW , into a case of premeditated murder . In order to determine the circumstances of the disappearance , an investigation group was formed . The group included officers of ORG and the ORG . The following CARDINAL lines of inquiry were pursued :","( i ) Did the disappearance involve family problems ?","( ii ) Was PERSON the victim of a criminal offence unrelated to his profession ?","( iii ) Was the disappearance connected to his critical publications in the GPE Pravda online newspaper ?","From DATE until DATE , a number of investigative measures were taken to identify witnesses , check Mr PERSON 's contacts , search localities , etc .","On DATE the unidentified corpse of a man was found in a forest in the Tarashcha district . The law enforcement authorities were informed about this and immediately went to the site . On DATE the investigation group examined the site and prepared the necessary procedural documents . The corpse was transferred to the morgue of the Tarashcha district for a forensic examination . The investigating officer of the Tarashcha district prosecutor 's office instituted a criminal investigation into the premeditated murder of an unidentified person , pursuant to LAW . The forensic expert found jewellery on the corpse that day and near the corpse in the soil nearby the following day .","The ORG district prosecutor 's office enquired whether the corpse could be that of Mr PERSON . For this purpose the applicant was summoned before the prosecutor and requested to describe the jewellery which Mr PERSON could have been wearing when he disappeared .","On DATE a group of journalists \u2013 close friends of Mr PERSON DATE went to PERSON , having learned about the unidentified body from a newspaper article . They met with the forensic expert , who informed them about the jewellery and showed them the corpse . Upon the journalists ' request , he took an X - ray of one of the arms of the corpse . PERSON showed pieces of metal in the arm that could have corresponded to an old wound of PERSON . On this ground the journalists concluded that the corpse was that of PERSON . DATE the PERSON prosecutor ordered and effected the transfer of the corpse to the GPE city morgue for further forensic examination .","On DATE the ORG joined the investigations in the PERSON and PERSON cases , and a case of defamation against senior ORG officials ( the PERSON case ) , in order to ensure their comprehensive and speedy examination .","On DATE the applicant was questioned as an aggrieved party . She agreed to provide samples of her own blood and of that of her children for forensic examination . The applicant insisted on participating in the identification of the Tarashcha body , and said that she was certain that she could recognise her husband 's jewellery .","On DATE the applicant refused to give blood samples because of a family conflict . DATE the applicant requested the ORG to conduct the forensic examinations in a western country . This request was rejected on DATE .","On DATE the investigator reported to the Deputy Prosecutor General that the deceased 's mother had refused to participate in the identification of the Tarashcha body , scheduled for DATE , as she did not feel well and wished to postpone her participation until the completion of the genetic identification tests .","On DATE the applicant was summoned to the ORG to participate in the identification of the PERSON body and the jewellery . She stated that there was a high probability that the corpse was that of her husband . She recognised the jewellery with absolute certainty . The same day the applicant requested to see the documents relating to the examination of the scene of the events and the body . Her request was allowed and a note made to that effect .","On DATE the ORG received a letter from the deceased 's mother , stating that she was under stress and could not come to GPE for the identification . She also stated that she would only participate in the identification once an independent forensic examination of the corpse had been conducted .","On DATE the applicant and the deceased 's mother requested the ORG to conduct an additional forensic examination with the assistance of GPE experts . They also requested that efforts be made to find the head of the PERSON body . The request for the forensic examination was allowed and , with the assistance of the ORG and ORG , an additional forensic examination and a genetic identification test were conducted on DATE . The head could not be found , however .","On DATE the ORG sent a request for legal assistance to the competent NORP authorities asking for the official results of a genetic identification test done in that ORG following a request from PERSON , a NORP MP . According to PERSON , the NORP experts had concluded that the PERSON body was not that of PERSON . However , according to the ORG , this test had no legal value , as neither the test nor the procedure for taking tissue samples had complied with NORP legislation .","On DATE the applicant 's representative applied to the ORG , stating that , according to the media , journalists had visited PERSON on DATE . The journalists had examined the body in the Tarashcha morgue and taken photographs of it . She asked the ORG to interview those journalists and to join the photographs to the criminal case file . On DATE the applicant 's representative was informed that the journalists had been identified and interviewed as witnesses in the course of the investigation . They had been requested to submit their photographs for inclusion in the case file .","On DATE the applicant 's representative requested the ORG to fix a time - limit for the completion of the pre - trial investigation into the murder of PERSON . The ORG replied that it could not do so until the murderer had been identified .","On DATE the applicant 's representative requested an additional forensic examination in order to determine , inter alia :","( i ) whether the X - ray of the corpse 's hand done in PERSON and given to the journalists corresponded to PERSON taken when PERSON was alive , and to those taken by the ORG on DATE ;","( ii ) whether the ORG analyses proved the presence of traces from bullets that corresponded to the wounds known to have been suffered earlier by the late journalist ; and","( iii ) whether the hair identification and DNA analysis confirmed the corpse 's identity .","On DATE the ORG refused to authorise an additional examination , as the PERSON body was undoubtedly that of PERSON and during their examinations the GPE and GPE experts had already answered the applicant 's questions .","On DATE the applicant 's representative requested access to the decision ordering a new forensic examination , allegedly to be carried out by NORP experts . She further requested to be allowed to put questions to these experts . She referred in her application to the alleged statements of investigators , disseminated by the media , about this new examination .","On DATE the ORG rejected the application . The applicant 's representative was informed that she could study the case file after the pre - trial investigation was completed and that no statement about a new examination by NORP experts had been made by ORG to the media .","On DATE the newly appointed Prosecutor General ordered the creation of a new investigation group in the PERSON case .","NORP On DATE and DATE the new group conducted CARDINAL additional examinations of the site where the body was found , together with forensic experts . They took soil samples , carried out a thorough search and took a number of objects for analysis .","On DATE an additional examination of the Tarashcha body was conducted and samples for further forensic tests were taken . The additional forensic examinations were to establish more accurately the approximate time of PERSON death .","On DATE the deceased 's mother was provided with the documents necessary for the burial of PERSON remains .","On DATE the ORG sent a letter to the Director of the ORG inviting them to assist NORP specialists in investigating the case .","In DATE and DATE Mr M\u00e9nard , Secretary - General of \u201c Reporters sans fronti\u00e8res \u201d , visited GPE twice as the representative of the deceased 's mother in the criminal case . He met ORG and had access to the results of the forensic examinations in the case . Moreover , samples were taken for an additional forensic examination , which was carried out in GPE ( GPE ) from DATE .","On DATE the ORG instituted proceedings against Lieutenant - General PERSON for abuse of power . His case was joined to that of Mr PERSON .","On DATE the ORG of GPE ordered the arrest and detention of Mr GPE . ORG and ORG were ordered to find him , without success .","During the investigation it was established that Mr PERSON had been the subject of illegal surveillance operations by certain officers of ORG , previously headed by PERSON , from DATE until DATE he disappeared in DATE . It was also established that , in DATE , all the material relating to this illegal surveillance had been destroyed .","On DATE the ORG instituted proceedings against police officers PERSON and NORP . , as well as Mr GPE , charging them with the premeditated murder of Mr PERSON . On DATE Mr PERSON and Mr Pr . were arrested .","On DATE the ORG remanded PERSON and PERSON . in custody .","On DATE PERSON and PERSON . were officially charged with premeditated murder . They confessed their involvement . On DATE Mr PERSON was dismissed from his position as head of unit in ORG of ORG .","On DATE it was also decided to charge Mr GPE , but he could not be found .","On DATE the investigation established that a fourth person , PERSON , had been involved in the disappearance and murder of Mr PERSON . PERSON was interrogated and admitted his role in the crime . On DATE PERSON was dismissed from his position as a senior officer of ORG of ORG .","All CARDINAL accused participated in an on - site reconstruction of the events of the crime . Other police officers who had followed Mr PERSON before his disappearance were questioned .","Some objects belonging to the journalist were found and presented to his relatives for identification .","The investigation pursued further forensic examinations of the corpse and the audio tapes of Mr PERSON and a number of other matters .","On DATE the ORG received a video tape with statements by PERSON made in the presence of several NORP MPs . These statements concerned the involvement of the President of GPE and many other high - ranking officials in giving illegal orders . Mr PERSON claimed to have made audio recordings of incriminating conversations , using a digital recorder placed under the sofa in the office of the President of GPE .","On DATE Mr Moroz , a NORP MP , lodged an application with the ORG , enclosing a copy of a complaint by PERSON PERSON dated DATE and video - recorded statements containing accusations about the involvement of senior ORG officials in the disappearance of PERSON . A forensic examination of the audio tapes was ordered but could not determine their authenticity . ( The applicant contended that a GPE laboratory had confirmed the authenticity of the tapes . )","On DATE the ORG requested ORG to establish the whereabouts of PERSON .","On DATE the ORG requested the assistance of ORG in interviewing PERSON as a witness in the PERSON case .","Mr PERSON refused to provide the ORG with his tapes and recording equipment , but agreed to provide written answers to the ORG 's questions , which he had not done by the time the Government submitted their observations to the ORG . The applicant stated that the reason for Mr PERSON 's implied lack of cooperation was his well - founded fear of prosecution by the NORP authorities .","After PERSON was elected President of GPE on DATE , he pledged to reopen the investigation into the PERSON case . It was reported in the press on DATE that ORG had announced the arrest of CARDINAL security officers in connection with the present case : a general and CARDINAL colonels . On DATE the death by purported suicide of PERSON , the above - mentioned Minister of the Interior at the time , was announced . He had been due to be interviewed by the ORG that TIME .","Recently , the ORG announced that the criminal investigation was complete and would be sent to the ORG . The aggrieved parties were given access to the case file . They stated that the latest forensic examination in DATE by NORP experts had confirmed that the PERSON body was that of PERSON .","On DATE Mr PERSON , who had been dismissed from his post as head of the security service , informed journalists that the Service had been preparing for the arrest and extradition of Lieutenant - General PERSON from GPE , but the operation had failed due to a leak of information from the ORG . He stated that the interim results of the laboratory examination of the PERSON tapes had not established any sign of tampering , and had identified persons whose voices were recorded on the tapes .","On DATE the parliament of GPE heard the report of the chairman of its ad hoc committee investigating the murder of PERSON PERSON . This report concluded that the kidnap and murder of PERSON PERSON had been organised by former President PERSON and the late Minister of the Interior , Mr PERSON . The report found that the then head of the presidential administration and the current speaker of parliament , Mr PERSON , and the then head of the security service and a current member of parliament , PERSON , had been involved in the crimes . The report noted finally that , having been informed about the crimes and the names of suspects , the ORG had failed to take any action or to react to the conclusions of the ad hoc committee .","NORP The relevant provisions of LAW provide :","\u201c The human being , his or her life and health , honour and dignity , inviolability and security are recognised in GPE as having the highest social value . ... \u201d","\u201c Every person has the inalienable right to life .","No one shall be arbitrarily deprived of life . The duty of the ORG is to protect human life . ... \u201d","\u201c Everyone has the right to respect for his or her dignity .","No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... \u201d","The relevant provisions of LAW provide :","\u201c Anyone who has suffered material damage as a result of a crime shall be entitled to lodge an application to join the criminal proceedings as a civil party claiming damages ... , which shall be considered by the court at the same time as the criminal case ... \u201d","\u201c Anyone who has suffered ... damage as a result of a crime may be recognised as an aggrieved party . ...","A citizen who has been recognised as an aggrieved party in respect of the crime shall be entitled to give evidence in the case . An aggrieved party , or his or her representative , shall be entitled to ... make requests ; study all the materials of the case file when the pre - trial investigation is completed ; ... [ and ] lodge complaints against the actions of the inquirer , investigator , prosecutor and court ...","In cases where the crime has caused the death of the victim , the rights provided for in this Article shall be conferred upon the deceased 's next of kin . \u201d","\u201c A criminal action shall be instituted on the following grounds :","( CARDINAL ) applications or communications from ... individuals ;","...","( CARDINAL ) direct detection of signs of a crime by a body of inquiry or investigation , a prosecutor or a court .","An action may be instituted only when there is sufficient evidence that a crime has been committed . \u201d","NORP The relevant provisions of LAW , in the DATE version , provided :","\u201c The main functions of ORG are :","...","NORP supervision of compliance with the law by the bodies that combat crimes and other offences and investigate circumstances indicating that a crime has been committed ;","investigation of circumstances indicating that a crime has been committed ;","... \u201d"],"violated_articles":["13","2","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22336","languageisocode":"ENG","respondent":"CHE","branch":"ADMISSIBILITY","date":2002,"docname":"MIR v. SWITZERLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a citizen of the GPE born in DATE . A lawyer and banker by profession , he resides in GPE in GPE .","After marrying in DATE the applicant and his then wife moved to GPE where they took up residence with their CARDINAL children , born in DATE and DATE respectively . In DATE they moved to GPE , although from DATE the applicant resided in GPE and GPE . He then returned to GPE where he obtained DATE residence permits ( GPE ) .","Meanwhile , having been separated from his wife since DATE , their marriage was dissolved in DATE .","Subsequently , the applicant was frequently unemployed and intermittently depended on social assistance .","In DATE , and again in DATE , DATE , DATE and DATE , ORG ) of the GPE of GPE refused the applicant \u2019s request for a long - term residence authorisation ( Niederlassungsbewilligung ) in view of his continuing tax and alimony debts and his dependence on public welfare . In DATE the applicant was in fact warned by ORG ( NORP ) of GPE that he would be expelled from GPE if he failed to comply with his alimony payments and if he continued to be a burden on the social assistance fund .","In DATE the applicant \u2019s residence permit was renewed until DATE . In DATE the Aliens\u2019 Police requested the applicant to regularise his status in GPE . The applicant \u2019s further request for a domicile authorisation was refused by ORG on DATE , which , furthermore , ordered him to leave the GPE of GPE by DATE . In its decision , ORG noted , inter alia , that the applicant was unemployed and had not tried to find employment ; he had debts amounting to MONEY ( CHF ) , and the social assistance had paid out MONEY CARDINAL to him .","The applicant \u2019s appeal against this decision was dismissed by the Government of the GPE of GPE on DATE .","On DATE ORG ( PERSON ) rejected the applicant \u2019s administrative law appeal ( PERSON ) . In its judgment , the court found that the applicant could not rely on LAW as he was no longer married and his children were adults . Moreover , the applicant could not claim to have any particular ties with GPE in view of his unemployment , his debts , and his dependency on social assistance . Warnings had also not been heeded .","On DATE ORG ordered the applicant to leave GPE by DATE .","On DATE the applicant filed with ORG a public law appeal ( staatsrechtliche ORG ) against the decision of CARDINAL DATE . When informed by ORG that he had missed the time - limit for appealing , the applicant insisted on pursuing his appeal , pointing out that the decision of DATE had not contained a statement as to possible remedies available to him . On DATE ORG declared the applicant \u2019s public law appeal inadmissible .","On DATE the applicant was brought by the police to GPE airport where he boarded a plane to GPE .","On DATE ORG ( Bezirksgericht ) fined the applicant CHF CARDINAL for failing to comply with the order to leave GPE by DATE .","On DATE the applicant married a NORP citizen and on DATE moved to GPE . It appears that he subsequently obtained an DATE residence permit ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76661","languageisocode":"ENG","respondent":"HUN","branch":"ADMISSIBILITY","date":2006,"docname":"DANYADI v. HUNGARY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr E. Petruska , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by PERSON L. ORG , ORG and Law Enforcement .","The facts of the case , as submitted by the parties , may be summarised as follows .","After having searched his home DATE with no result \u2013 on DATE and heard CARDINAL witnesses on DATE , ORG interrogated the applicant on DATE . He was suspected of bodily assault , allegedly having stabbed PERSON on DATE . On DATE the applicant retained Mr ORG as defence counsel . The latter \u2019s request of DATE for access to the investigation documents which had been created prior to his appointment was rejected by the police and , finally , by the public prosecutor \u2019s office on DATE . The lawyer eventually had access to the entirety of the case file on termination of the investigation .","On DATE the GPE XX \/ XXI District Public Prosecutor \u2019s Office indicted the applicant for severe bodily assault , noting that the victim had had a QUANTITY wide , QUANTITY deep knife wound .","The Budapest XX \/ XXI \/ XXIII ORG held a hearing on DATE . At that hearing the victim described the weapon used as a knife with a blade CARDINAL in width .","In another case , on DATE ORG indicted the applicant for the offence of causing unlawful damage . This case was joined to the first proceedings on DATE .","Meanwhile , in the principal proceedings a forensic opinion was obtained on DATE . Hearings took place on DATE , CARDINAL DATE and DATE .","In yet another case , on DATE ORG indicted the applicant for the offence of riotous behaviour . This case was joined to the existing proceedings on DATE . On DATE , a hearing took place in the joined proceedings . Further hearings were held on DATE and CARDINAL DATE . On DATE another forensic opinion was obtained . Additional hearings took place on DATE and CARDINAL DATE .","At the hearing of DATE , the prosecution and the defence made their final submissions . Defence counsel argued inter alia that the weapon as described by the victim could not possibly have caused the injury suffered . On that date the court found the applicant guilty as charged and imposed a cumulative sentence of DATE and CARDINAL months\u2019 imprisonment , suspended for DATE . The court observed that the forensic opinion corroborated the victim \u2019s account of the incident and the weapon used , although the latter was nowhere to be found . Regarding the severe bodily assault committed by the applicant , which was punishable with imprisonment of DATE , the court took into account as a mitigating factor the substantial lapse of time since the offence had been committed .","On appeal , on DATE ORG disjoined the case concerning the assault and , quashing the first - instance judgment in this respect , remitted the case . It acquitted the applicant of the charge of causing unlawful damage and reduced his sentence for riotous behaviour to a fine .","For reasons of competence , on DATE another bench of ORG was appointed to retry the applicant for assault . In the resumed proceedings , hearings took place on DATE and DATE . On DATE , the defence had its only opportunity ever to question the prosecution \u2019s main witness in the case . Further hearings were held on DATE and DATE . On that date ORG convicted the applicant of aggravated bodily assault and sentenced him to DATE imprisonment , suspended for DATE . The court relied on the testimonies of the victim and several witnesses , the opinion of a forensic expert and the inspection of the crime scene . The court observed the substantial lapse of time since the offence had been committed and took it into account as a mitigating factor .","On appeal , on DATE ORG held a hearing . According to TIME of the hearing , the applicant \u2019s lawyer argued inter alia that :","\u201c the applicant \u2019s [ procedural ] rights had been seriously prejudiced [ in the proceedings before ORG ] \u201d .","In his submissions to the ORG , the applicant explains that this statement of his lawyer , as presented orally to ORG , concerned the alleged deficiency of ORG reasoning .","In its CARDINAL decision served on DATE , ORG upheld the first - instance judgment . Completing the findings of fact on certain points , it held that the reasoning of ORG judgment was , as such , sufficient and the establishment of the facts correct . It explained that , contrary to the defence \u2019s arguments , no breach of the prohibition of reformatio in peius had taken place . Finally , it observed that the sentence imposed by the first - instance court was lawful .","Section CARDINAL \u00a7 CARDINAL of the ( Old ) Code of Criminal Procedure , as in force in the material period , provides that the defendant shall have access to the case file on termination of the investigation ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108610","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2012,"docname":"CASE OF VINTER  AND OTHERS v. THE UNITED KINGDOM","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["NORP Since the abolition of the death penalty in GPE and GPE , the sentence for murder has been a mandatory sentence of life imprisonment . When such a sentence is imposed , it is the current practice , in the majority of cases , for the trial judge to set a minimum term of imprisonment which must be served before the prisoner is eligible for release on licence . GPE , however , \u201c a whole life order \u201d may be imposed by the trial judge instead of a minimum term . This has the effect that the prisoner can not be released other than at the discretion of the Secretary of ORG . ( The power of the Secretary of ORG to release a prisoner is provided for in section CARDINAL(CARDINAL ) of ORG . ) The Secretary of ORG will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated ( see Prison Service Order CARDINAL set out at paragraph CARDINAL below ) .","Prior to the entry into force of the DATE Act , it was the practice for the mandatory life sentence to be passed by the trial judge but for the Secretary of ORG , after receiving recommendations from the trial judge and the Lord Chief Justice , to decide the minimum term of imprisonment which the prisoner would have to serve before he would be eligible for early release on licence . This was also referred to as the \u201c tariff \u201d part of the sentence and was taken to represent the minimum period which the prisoner was required to serve to satisfy the requirements of retribution and deterrence .","It was open to the Secretary of ORG to impose a whole life tariff on a prisoner . In such a case , it was the practice of the Secretary of ORG to review a whole life tariff after DATE imprisonment to determine whether it was still justified , particularly with reference to cases where the prisoner had made exceptional progress in prison ( see PERSON at paragraph DATE below ) .","With the entry into force of LAW ( and , in particular , section CARDINAL and schedule CARDINAL to the Act ) , all prisoners whose tariffs were set by the Secretary of ORG have been able to apply to ORG for review of that tariff . Upon such an application ORG may set a minimum term of imprisonment or make a whole life order .","This case concerns CARDINAL applicants who , having been convicted of murder in separate criminal proceedings in GPE and GPE , are currently serving mandatory sentences of life imprisonment . All CARDINAL applicants have been given whole life orders : in the first applicant \u2019s case this order was made by the trial judge under the current practice ; in the case of the second and third applicants , who were convicted and sentenced prior to the entry into force of the CARDINAL LAW , the orders were made by ORG . All CARDINAL applicants maintain that these whole life orders , as they apply to their cases , are incompatible inter alia with Articles CARDINAL and CARDINAL \u00a7 CARDINAL of the LAW . The facts of the applications , as submitted by the parties , may be summarised as follows .","On DATE , the first applicant was sentenced to life imprisonment for the murder of a work colleague , with a minimum term of DATE . He was released on licence on DATE .","He began living with a woman who was to become the victim of his second murder offence . The couple married on DATE . On DATE the first applicant was involved in a fight in a public house and charged with affray ( using or threatening unlawful violence ) . His licence was revoked and he was recalled to prison . In DATE , having pleaded guilty to the charge of affray , he was sentenced to CARDINAL months\u2019 imprisonment . He was released on licence again in DATE and returned to live with his wife and her CARDINAL children . The couple became estranged and the first applicant left the marital home .","On DATE , the first applicant followed his wife to a public house . He had been drinking and had taken cocaine . The couple argued and the wife \u2019s daughter , who was present , telephoned the police to alert them to the dispute . The first applicant ordered his wife to get into a car . When the daughter tried to get into the car to protect her mother , the first applicant forcibly removed her . He then drove off with his wife . When the police telephoned her to ascertain if she was safe , the first applicant forced his wife to tell them that she was fine . The first applicant also telephoned the police to tell them that his wife was safe and well . TIME he gave himself up to the police , telling them that he had killed her . A post - mortem examination revealed that the deceased had a broken nose , deep and extensive bruising to her neck ( which was consistent with attempted strangulation ) , and CARDINAL stab wounds to the chest . CARDINAL knives were found at the scene , one of which had a broken blade .","The first applicant pleaded guilty to murder and instructed his counsel not to make any submissions in mitigation lest it add to the grief of the victim \u2019s family . The trial judge considered that the first applicant fell into that small category of people who should be deprived permanently of their liberty . He passed the mandatory life sentence and made a whole life order .","ORG dismissed his appeal on DATE . It considered the general principles for determining the minimum term of a mandatory life sentence ( as set out in schedule CARDINAL to the DATE Act : see relevant domestic law and practice below ) . It found that , given the circumstances of the offence , there was no reason whatever to depart from the normal principle enshrined in schedule QUANTITY that , where murder was committed by someone who was already a convicted murderer , a whole life order was appropriate for punishment and deterrence .","On DATE , the second applicant \u2019s parents , his adoptive sister and her CARDINAL young children were shot and killed . The second applicant was subsequently charged and , on DATE , convicted of the murders . The prosecution \u2019s case was that the murders were premeditated and planned and had been committed for financial gain . It was also alleged that the second applicant had arranged the crime scene so as to mislead the police by making it appear as if his adoptive sister had killed the family and then herself .","The trial judge recommended to the Secretary of ORG that the second applicant serve CARDINAL years\u2019 imprisonment \u201c as a minimum \u201d ( his underlining ) . On the trial judge \u2019s letter to the Secretary of ORG , the Lord Chief Justice added the comment \u201c for my part I would never release him \u201d . In DATE , the Secretary of ORG imposed a whole life tariff . The practice at the time was not to inform the prisoner of this decision . By letter dated DATE , the applicant was informed that the Secretary of ORG had concluded that the requirements of retribution and deterrence could only be satisfied by the second applicant remaining in prison for the whole of his life .","In DATE , following the entry into force of section CARDINAL and schedule CARDINAL to LAW , the second applicant applied to ORG for review of the whole life tariff . Having regard to schedule CARDINAL to the LAW , ORG concluded that , given the number of murders involved and the presence of premeditation by the second applicant , the offence plainly fell within that category of cases where the appropriate starting point was a whole life order . Having further regard to statements submitted by the GPE next - of - kin and submissions by the second applicant , including reports as to the behaviour and progress he had made in prison , ORG found that there was no reason to depart from the views of the Lord Chief Justice and the Secretary of ORG . It therefore imposed a whole life order .","The second applicant appealed to ORG , which dismissed the appeal on DATE . The court found that , when the Secretary of ORG had set a whole life tariff in DATE , he had been provided with CARDINAL different judicial recommendations : CARDINAL from the trial judge recommending a minimum term of DATE and CARDINAL from the Lord Chief Justice recommending that the second applicant should never be released . The Secretary of ORG had been entitled to choose between those recommendations or to adopt neither of them . ORG also found that the whole life order imposed by ORG was not only correct but , for the purposes of punishment and retribution , fully justified .","Relying on its previous judgment in NORP v. PERSON ( see paragraph CARDINAL below ) , it found that no issue arose under LAW as the whole life order was not an irreducible life sentence as that term had been used in GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE ... Finally , following its ruling in R v. PERSON ( see paragraph CARDINAL below ) it found that the review procedure created by LAW was compatible with LAW as , properly construed , the relevant statutory provisions meant a prisoner could not be disadvantaged by the outcome of the review : the term to be served could be reduced , or maintained , but it could not be increased or extended .","The second applicant applied to ORG to certify that its judgment concerned a point of law of general public importance which ought to be considered by ORG . That application was refused on DATE .","On DATE the third applicant was convicted after trial in FAC at GPE of CARDINAL counts of murder . The victims were homosexual men and the applicant , himself a homosexual , was alleged to have committed the murders for his own sexual gratification . Each victim was stabbed many times with a large combat knife which the third applicant had bought for that purpose . The first victim was attacked in his home on DATE . Soon after , on DATE of DATE , the third applicant met his second victim in a bar and arranged to take him home for sex ; he instead took him to a forest , stabbed him to death and left the body there . The third victim was stabbed in the caravan where he lived on DATE . Finally , shortly before DATE , the third applicant went to a beach which was well - known for homosexual trysts . He met the fourth victim on the beach and stabbed him there .","Blood from the first and third victims was found on the third applicant \u2019s jacket and on the knife . Property from DATE and fourth victims was found in his possession . He made extensive admissions about all CARDINAL murders to the police . The police had been unaware of the second victim until the third applicant mentioned him to them . The body was recovered from the forest with his assistance . At trial , the applicant \u2019s defence was that the murders had been committed by someone else , though he admitted to having been present at all the murders save for that of the second victim .","After the third applicant was convicted , the trial judge passed the mandatory sentence of life imprisonment and recommended to the Secretary of ORG for ORG that , in his view , the applicant should never be released . Upon review , the Lord Chief Justice reported that he thought the minimum period before eligibility for release should be set at DATE . On DATE , the Secretary of ORG decided to set a whole life tariff .","In DATE , pursuant to section CARDINAL and schedule CARDINAL to LAW DATE , the third applicant applied to ORG for review of the whole life tariff set by the Secretary of ORG . In its judgment of DATE ORG rejected the third applicant \u2019s submission that it should accept the Lord Chief ORG \u2019s recommendation of a minimum term of DATE . It found that , while weight should be accorded to that recommendation , the Lord Chief Justice did not have regard to the principles set out in schedule CARDINAL as ORG was required to do . It also rejected the submission that an issue arose under LAW given that a whole life tariff had been set by the Secretary of ORG . ORG found that the procedure for applying to ORG under section CARDINAL and schedule CARDINAL of the Act provided the necessary independent review as to whether a prisoner should be released . The court also found that a whole life order would be compatible with Articles CARDINAL and CARDINAL of the Convention . Having regard to the general principles for determining the minimum term of a mandatory life sentence ( as set out in schedule CARDINAL to the Act ) , no issue of arbitrariness arose and whether such a sentence was disproportionate depended on the facts of each case .","The High Court found that , since the case involved the murder of CARDINAL or more persons , sexual or sadistic conduct and a substantial degree of premeditation , under schedule CARDINAL the starting point was a whole life order . There were no mitigating features and even the Lord Chief Justice , in recommending a minimum term of DATE , had shared the trial judge \u2019s view that it might never be safe to release the third applicant . There were no reasons , therefore , to mitigate the starting point of a whole life order . ORG added that , even if the starting point were a minimum term of DATE , the aggravating features of the murders were such as to make a whole life order appropriate .","On DATE , ORG dismissed the third applicant \u2019s appeal , finding that ORG was not only entitled , but clearly right , to conclude that a whole life order was appropriate .","It appears that the third applicant , in order to allow him to appeal to ORG , then applied to ORG to certify that its judgment concerned a point of law of general public importance which ought to be considered by ORG . On DATE , he was informed by ORG that , because ORG had refused his application for permission to appeal against sentence ( as opposed to granting permission to appeal against sentence and then dismissing the appeal ) , an application to certify a point of law for ORG could not be made .","In GPE and GPE , the mandatory life sentence for murder is contained in section CARDINAL ) of ORG Act DATE .","The power of the Secretary of ORG to set tariff periods for mandatory life sentence prisoners , as contained in LAW of LAW DATE , was found by ORG to be incompatible with LAW ( PERSON ) v. the Secretary of ORG for ORG [ DATE ] CARDINAL AC CARDINAL . This led to the enactment of LAW DATE and schedules CARDINAL and CARDINAL to that Act .","Section CARDINAL of the CARDINAL Act directs a trial judge , in passing a mandatory life sentence , to determine the minimum term which the prisoner must serve before he or she is eligible for early release on licence . By section CARDINAL ) , this minimum term must take into account the seriousness of the offence . Section CARDINAL ) allows the trial judge to decide that , because of the seriousness of the offence , the prisoner should not be eligible for early release ( in effect , to make a \u201c whole life order \u201d ) . Section CARDINAL ) only applies to an offender who is DATE of age or over when he committed the offence . Section CARDINAL ) directs the trial judge , in considering the seriousness of the offence , to have regard inter alia to the principles set out in schedule CARDINAL to the Act .","Schedule DATE provides for CARDINAL different \u201c starting points \u201d which may be increased or decreased depending on the presence of aggravating or mitigating features in the offence : a whole life order , a minimum term of DATE imprisonment and a minimum term of DATE imprisonment .","By paragraph PERSON ) of the schedule , if the seriousness of the offence is \u201c exceptionally high \u201d the appropriate starting point is a whole life order . Paragraph CARDINAL(CARDINAL ) provides that the following cases would normally fall within this category :","( a ) the murder of CARDINAL or more persons , where each murder involves any of the following\u2014","( i ) a substantial degree of premeditation or planning ,","( ii ) the abduction of the victim , or","( iii ) sexual or sadistic conduct ,","( b ) the murder of a child if involving the abduction of the child or sexual or sadistic motivation ,","( c ) a murder done for the purpose of advancing a political , religious or ideological cause , or","( d ) a murder by an offender previously convicted of murder .","By paragraph CARDINAL ) , if the seriousness of the offence does not fall within paragraph PERSON ) but is \u201c particularly high \u201d , the appropriate starting point in determining the minimum term is DATE imprisonment . Paragraph CARDINAL(CARDINAL ) provides that the following cases would normally fall within this category :","( a ) the murder of a police officer or prison officer in the course of his duty ,","( b ) a murder involving the use of a firearm or explosive ,","( c ) a murder done for gain ( such as a murder done in the course or furtherance of robbery or burglary , done for payment or done in the expectation of gain as a result of the death ) ,","( d ) a murder intended to obstruct or interfere with the course of justice ,","( e ) a murder involving sexual or sadistic conduct ,","( f ) the murder of CARDINAL or more persons ,","( g ) a murder that is racially or religiously aggravated or aggravated by sexual orientation , or","( h ) a murder falling within paragraph PERSON ) committed by an offender who was aged DATE when he committed the offence . \u201d","Paragraphs CARDINAL and CARDINAL provide that , in all other cases , the appropriate starting point in determining the minimum term is DATE imprisonment ( DATE for DATE ) .","Paragraphs CARDINAL and CARDINAL provide that , having chosen a starting point , the trial judge should take into account any aggravating or mitigating factors which may result in a minimum term of any length ( whatever the starting point ) , or in the making of a whole life order .","Paragraph CARDINAL provides that aggravating factors include :","\u201c ( a ) a significant degree of planning or premeditation ,","( b ) the fact that the victim was particularly vulnerable because of age or disability ,","( c ) mental or physical suffering inflicted on the victim before death ,","( d ) the abuse of a position of trust ,","( e ) the use of duress or threats against another person to facilitate the commission of the offence ,","( f ) the fact that the victim was providing a public service or performing a public duty , and","( g ) concealment , destruction or dismemberment of the body . \u201d","Paragraph CARDINAL provides that mitigating factors include :","( a ) an intention to cause serious bodily harm rather than to kill ,","( b ) lack of premeditation ,","( c ) the fact that the offender suffered from any mental disorder or mental disability which ( although not falling within section CARDINAL(CARDINAL ) of the Homicide Act DATE ( c. CARDINAL ) ) , lowered his degree of culpability ,","( d ) the fact that the offender was provoked ( for example , by prolonged stress ) in a way not amounting to a defence of provocation ,","( e ) the fact that the offender acted to any extent in self - defence ,","( f ) a belief by the offender that the murder was an act of mercy , and","( g ) the age of the offender . \u201d","Schedule CARDINAL enacts a series of transitional measures for those prisoners who were given mandatory life sentences prior to the entry into force of section CARDINAL of the Act and whose minimum terms of imprisonment were set by the Secretary of ORG . It also applies to those prisoners whom the Secretary of ORG directed should never be eligible for early release on licence ( that is , those prisoners for whom a whole life tariff had been set ) . Paragraph CARDINAL of the schedule allows both categories of prisoners to apply to ORG . Upon such an application ORG must , in the case of a prisoner who is subject to a minimum term of imprisonment set by the Secretary of ORG , make an order specifying the minimum term that prisoner must serve before he or she is eligible for early release . Under paragraph ORG ) , where the Secretary of ORG notified the prisoner that a whole life tariff had been set , ORG may make an order that the prisoner should not be eligible for release ( \u201c a whole life order \u201d ) .","The minimum term set by ORG must not be greater than that previously set by the Secretary of ORG ( paragraph CARDINAL(CARDINAL)(a ) ) .","Similar provisions apply to sentences passed after the commencement of the LAW in respect of murders committed before commencement . Paragraph CARDINAL provides that the court may not make an order which , in its opinion , is greater than that which the Secretary of ORG would have been likely to have made under the previous practice .","In determining an application under paragraph CARDINAL , ORG must have regard inter alia to the seriousness of the offence and , in so doing , must also have regard to the general principles set out in schedule CARDINAL and any recommendations to the Secretary of ORG by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence ( DATE and CARDINAL of schedule CARDINAL ) . The offender may also make representations to ORG , including representations as to his or her behaviour and progress in prison since the offence , before ORG determines the application . Representations can also be made by the victim or GPE families . ORG may also hold an oral hearing in rare cases .","Section CARDINAL(CARDINAL ) of ORG ( Sentences ) Act DATE provides that the Secretary of ORG may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner \u2019s release on compassionate grounds .","The criteria for the exercise of that discretion are set out in Prison Service Order CARDINAL chapter CARDINAL , which , where relevant , provides :","\u201c \u2022 the prisoner is suffering from a terminal illness and death is likely to occur very shortly ( although there are no set time limits , DATE may be considered to be an appropriate period for an application to be made to ORG [ PPCS ] ) , or the ORG ( Indeterminate Sentenced Prisoner ) is bedridden or similarly incapacitated , for example , those paralysed or suffering from a severe stoke ;","and","\u2022 the risk of re - offending ( particularly of a sexual or violent nature ) is minimal ;","and","\u2022 further imprisonment would reduce the prisoner \u2019s life expectancy ;","and","\u2022 there are adequate arrangements for the prisoner \u2019s care and treatment outside prison ;","and","\u2022 early release will bring some significant benefit to the prisoner or his \/ her family . \u201d","According to the ORG , as of DATE , CARDINAL prisoners were serving mandatory life sentences for murder in GPE and GPE . CARDINAL prisoners were subject to whole life orders ( including those held in secure hospitals ) . Since DATE , CARDINAL whole life orders had been imposed , CARDINAL of which were subsequently reduced by ORG . Since DATE , no prisoner serving a whole life term had been released on compassionate grounds . In response to a freedom of information request by the first applicant , ORG indicated that , as of DATE , CARDINAL life - sentence prisoners who had not been given whole life terms had been released on compassionate grounds .","In NORP v. PERSON and NORP v. PERSON [ DATE ] CARDINAL PERSON , ORG considered that , in its operation at that time , a mandatory life sentence was not incompatible with either Articles CARDINAL or CARDINAL of the Convention .","Such a sentence was partly punitive , partly preventative . The punitive element was represented by the tariff term , imposed as punishment for the serious crime which the convicted murderer had committed . The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until ORG , an independent body , considered it safe to release him , and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public ( Lord GPE of Cornhill at paragraph CARDINAL of the judgment ) .","ORG therefore held firstly , that the appellant \u2019s complaints were not of sufficient gravity to engage LAW and secondly , that the life sentence was not arbitrary or otherwise contrary to LAW . Lord PERSON added :","\u201c If the ORG had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of DATE , to remain in custody until ( if ever ) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention , I would have little doubt that such a sentence would be found to violate articles CARDINAL and CARDINAL of ORG ... as being arbitrary and disproportionate . \u201d","In NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL AC CARDINAL , ORG and PERSON [ DATE ] CARDINAL AC CARDINAL , ORG , ORG found that , under the tariff system then in operation , there was \u201c no reason , in principle , why a crime or crimes , if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment \u201d ( per Lord PERSON at pp . PERSON ) . Lord PERSON also observed : \u201c there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence \u201d ( p. CARDINAL ) . ORG also found that the Secretary of ORG had not unlawfully fettered his discretion in reviewing the cases of prisoners where a whole life tariff was in place after the prisoner had served DATE imprisonment and reducing the tariff in appropriate cases . ) . The judgment records the Secretary of ORG \u2019s policy statement of DATE , in which the Secretary of ORG indicated that he was : \u201c open to the possibility that , in exceptional circumstances , including for example , exceptional progress by the prisoner whilst in custody , a review and reduction of the tariff may be appropriate . \u201d The Secretary of ORG indicated that he would have this possibility in mind when reviewing at DATE point the cases of prisoners given a whole life tariff and in that respect would consider issues beyond the sole criteria of retribution and deterrence ( p. CARDINAL - C ) .","NORP In NORP v. PERSON [ DATE ] CARDINAL WLR CARDINAL ORG considered the compatibility of the DATE LAW in the light of GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE ...","It found that a whole life order did not contravene LAW possibility of compassionate release by the Secretary of ORG . It also found that the imposition of an irreducible life sentence would not itself constitute a violation of LAW but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence . The court observed :","\u201c CARDINAL . While under LANGUAGE law the offence of murder attracts a mandatory life sentence , this is not normally an irreducible sentence . The judge specifies the minimum term to be served by way of punishment and deterrence before the offender \u2019s release on licence can be considered . Where a whole life term is specified this is because the judge considers that the offence is so serious that , for purposes of punishment and deterrence , the offender must remain in prison for the rest of DATE . For the reasons that we have given , we do not consider that the GPE court has ruled that an irreducible life sentence , deliberately imposed by a judge in such circumstances , will result in detention that violates article CARDINAL . Nor do we consider that it will do so .","It may be that the approach of the GPE court will change . There seems to be a tide in LOC that is setting against the imposition of very lengthy terms of imprisonment that are irreducible . Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are , in fact irreducible .","...","Under the regime that predated LAW it was the practice of the Secretary of ORG to review the position of prisoners serving a whole life tariff after they had served DATE with a view to reducing the tariff in exceptional circumstances , such as where the prisoner had made exceptional progress whilst in custody . No suggestion was then made that the imposition of a whole life tariff infringed article CARDINAL .","...","Under the current regime the Secretary of ORG has a limited power to release a life prisoner under LAW DATE .","...","At present it is the practice of the Secretary of ORG to use this power sparingly , in circumstances where , for instance , a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated . If , however , the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment , we can see no reason why , having particular regard to the requirement to comply with the LAW , the Secretary of ORG should not use his statutory power to release the prisoner .","DATE . For these reasons , applying the approach of the GPE court in PERSON v GPE DATE , we do not consider that a whole life term should be considered as a sentence that is irreducible . Any article QUANTITY challenge where a whole life term has been imposed should therefore be made , not at the time of the imposition of the sentence , but at the stage when the prisoner contends that , having regard to all the material circumstances , including the time that he has served and the progress made in prison , any further detention will constitute degrading or inhuman treatment .","For these reasons we reject the challenge made to the defendant \u2019s sentence that is founded on article CARDINAL .","CARDINAL We would add , for the avoidance of doubt , that we have not been asked to consider , nor have we , whether the decision under LAW is one that should properly be taken by a judge rather than by a minister . \u201d","The transitional measures set out in schedule CARDINAL were found by ORG to be compatible with Articles CARDINAL and CARDINAL of the Convention in R v. Pitchfork [ DATE ] EWCA Crim CARDINAL . The schedule expressly provided that the outcome of the High Court review could not be an increase in the minimum period set by the Secretary of ORG . It was not in breach of LAW to direct ORG to consider the general principles set out in schedule CARDINAL : neither those principles nor the original recommendations by the trial judge and the Lord Chief Justice were to enjoy primacy over the other . Instead , ORG was conducting a fresh review , taking account of both the judicial recommendations and schedule CARDINAL .","In NORP v. PERSON and Others [ DATE ] CARDINAL Cr . App . PERSON CARDINAL ORG held that protection of the public was not a relevant factor in fixing the minimum term , since it was the task of ORG to ensure that the offender was not released after serving the minimum term unless this presented no danger to the public . The court also held :","\u201c A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life . Often , perhaps usually , where such an order is called for the case will not be on the borderline . The facts of the case , considered as a whole , will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life . Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for DATE of his or her life is the appropriate disposal . To be imprisoned for a finite period of DATE or more is a very severe penalty . If the case includes CARDINAL or more of the factors set out in para.CARDINAL(CARDINAL ) it is likely to be a case that calls for a whole life order , but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty . \u201d","In Attorney - General \u2019s Reference No CARDINAL of DATE ( also known as R v. ORG ) [ DATE ] PERSON , the offender had been convicted of murder in DATE , and was notified of the decision of the Secretary of ORG to set a whole life tariff in DATE . Upon an application to ORG , the whole life tariff was substituted by a minimum term of DATE imprisonment . That decision was reviewed by ORG , which increased the minimum term to DATE imprisonment . ORG also observed that it remained open to ORG to consider the recommendation of the trial judge and Lord Chief Justice in their contemporaneous context but , as in any case , the findings and views of the trial judge represented a critical element in any sentencing decision . The recommendations were not subsidiary to the provisions in schedule CARDINAL and paragraph CARDINAL ) of schedule CARDINAL made it clear that proper weight should be given to these recommendations in the review process . ORG accepted that the recommendations in the case before it , and in many cases like it , would be \u201c likely to have been made in a sentencing environment in which the term to be served would be likely to be shorter than it is now \u201d .","In NORP v. PERSON [ DATE ] CARDINAL Cr . App . NORP ( NORP ORG the Court of Appeal stated that schedule CARDINAL provided an even more rigorous approach to the determination of the minimum term than had applied previously and , when followed , would in some cases lead to longer minimum terms . However , in that case , which concerned a sentence passed after the commencement of the DATE Act in respect of a murder committed before its commencement , the court went on to state that the scheme was compatible with Articles CARDINAL and CARDINAL of the LAW , given the transitional measures contained in paragraph CARDINAL of schedule CARDINAL .","GPE requested the extradition of GPE from GPE to stand trial in GPE on CARDINAL counts of murder in the first degree . In his appeal against extradition , Mr GPE argued that his surrender would violate LAW , on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole .","In giving judgment in ORG ( [ DATE ] EWHC CARDINAL ( Admin ) ) , Lord Justice Laws found that there were \u201c powerful arguments of penal philosophy \u201d which suggested that risk of a whole - life sentence without parole intrinsically violated LAW . He observed :","\u201c The abolition of the death penalty has been lauded , and justified , in many ways ; but it must have been founded at least on the premise that the life of every person , however depraved , has an inalienable value . The destruction of a life may be accepted in some special circumstances , such as self - defence or just war ; but retributive punishment is never enough to justify it . Yet a prisoner \u2019s incarceration without hope of release is in many respects in like case to a sentence of death . He can never atone for his offence . However he may use his incarceration as time for amendment of life , his punishment is only exhausted by his last breath . Like the death sentence the whole - life tariff is lex talionis . But its notional or actual symmetry with the crime for which it is visited on the prisoner ( the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment , for the whole - life tariff is arbitrary : it may be measured in DATE or DATE according to how long the prisoner has to live . It is therefore liable to be disproportionate \u2013 the very vice which is condemned on LAW unless , of course , the death penalty \u2019s logic applies : the crime is so heinous it can never be atoned for . But in that case the supposed inalienable value of the prisoner \u2019s life is reduced , merely , to his survival : to nothing more than his drawing breath and being kept , no doubt , confined in decent circumstances . That is to pay lip - service to the value of life ; not to vouchsafe it . \u201d","However , and \u201c not without misgivings \u201d , he considered that the relevant authorities , including those of this ORG , suggested an irreducible life sentence would not always raise an Article CARDINAL issue .","On GPE \u2019s appeal to ORG , a majority of their ORG found that LAW , insofar as it applied to inhuman and degrading treatment and not to torture , was applicable only in attenuated form to extradition cases . In any event , all five Law Lords found that the sentence likely to be imposed on the appellant would not be irreducible ; having regard to the powers of clemency and commutation of LOC GPE , it would be just as reducible as the sentence at issue in GPE .","All five Law Lords also noted that , in GPE , the ORG had only said that the imposition of an irreducible life sentence may raise an issue under LAW . They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of LAW , unless it were grossly or clearly disproportionate . Lord PERSON in particular noted :","\u201c Having puzzled long over this question , I have finally concluded that the majority of ORG [ in GPE ] would not regard even an irreducible life sentence \u2014 by which , as explained , I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant \u2019s case \u2014 as violating article CARDINAL unless and until the time comes when further imprisonment would no longer be justified on any ground \u2014 whether for reasons of punishment , deterrence or public protection . It is for that reason that the majority say only that article CARDINAL may be engaged . \u201d","NORP Moreover , Lord PERSON , Lord PERSON , ORG and Lord PERSON all doubted Lord Justice Laws\u2019 view ( endorsed by ORG \u2013 see section CARDINAL below ) that life imprisonment without parole was lex talionis . Lord PERSON , ORG and Lord PERSON did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value ; there were other , more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect . Lord PERSON rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement ; once it was accepted that a whole life sentence could be a just punishment , atonement was achieved by the prisoner serving his sentence .","GPE \u2019s application to this Court was struck out on DATE , the applicant having indicated his wish to withdraw it ; GPE v. GPE DATE . ) , no . CARDINAL\/CARDINAL .","The relevant texts of ORG , ORG and other international legal texts on the imposition and review of sentences of life imprisonment , including the obligations of ORG member GPE when extraditing individuals to GPE where they may face such sentences , are set out in GPE , cited above , at \u00a7 \u00a7 DATE . Additional materials before the ORG in the present cases ( and those materials in GPE that are expressly relied on by the parties ) may be summarised as follows .","ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( \u201c CPT \u201d ) prepared a report on \u201c Actual \/ Real Life Sentences \u201d dated DATE ( ORG ( DATE ) DATE ) . The report reviewed various ORG texts on life sentences , including recommendations ( DATE ) CARDINAL and DATE , and stated in terms that : ( a ) the principle of making conditional release available is relevant to all prisoners , \u201c even to life prisoners \u201d ; and ( b ) that all ORG member ORG had provision for compassionate release but that this \u201c special form of release \u201d was distinct from conditional release .","It noted the view that discretionary release from imprisonment , as with its imposition , was a matter for the courts and not the executive , a view which had led to proposed changes in the procedures for reviewing life imprisonment in GPE , GPE and GPE . The report also quoted with approval the ORG \u2019s report on its DATE visit to GPE in which it stated :","\u201c [ ORG regards \u201c actual lifers \u201d , the ORG has serious reservations about the very concept according to which such prisoners , once they are sentenced , are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release \u201d .","The report \u2019s conclusion included recommendations that : no category of prisoners should be \u201c stamped \u201d as likely to spend their natural life in prison ; no denial of release should ever be final ; and not even recalled prisoners should be deprived of hope of release .","Article CARDINAL of LAW of ORG allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person . Such a sentence must be reviewed after DATE to determine whether it should be reduced ( LAW .","Article CARDINAL(CARDINAL ) of ORG of DATE on the NORP arrest warrant provides :","\u201c if the offence on the basis of which the NORP arrest warrant has been issued is punishable by custodial life sentence or life - time detention order , the execution of the said arrest warrant may be subject to the condition that the issuing Member ORG has provisions in its legal system for a review of the penalty or measure imposed , on request or at DATE , or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member ORG , aiming at a non - execution of such penalty or measure ... \u201d","According to a comparative study provided by the applicants ( NORP PERSON , \u201c Outlawing Irreducible Life Sentences : LOC on the LOC ? \u201d , CARDINAL : CARDINAL Federal Sentencing Reporter PERSON , No CARDINAL ( DATE ) ) the majority of NORP countries do not have irreducible life sentences , and some , including GPE , GPE and GPE , do not have life sentences at all . In GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , prisoners sentenced to life imprisonment have fixed periods after which release is considered . In GPE CARDINAL such prisoners have no minimum period but it appears they can be considered for release after DATE . In GPE there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous , although the provisions have not been used . The study concludes that only the GPE and GPE and GPE have irreducible life sentences .","Article CARDINAL of LAW provides that human dignity shall be inviolable . Article CARDINAL ) provides :","\u201c Every person shall have the right to life and physical integrity . Freedom of the person shall be inviolable . These rights may be interfered with only pursuant to a law . \u201d","The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by ORG in the Life Imprisonment case of DATE , CARDINAL BVerfGE CARDINAL ( an LANGUAGE translation of extracts of the judgment , with commentary , can be found in PERSON , LAW ( CARDINALnd ed . ) , ORG , GPE and GPE , DATE at pp . CARDINAL - CARDINAL ) .","The court found that the ORG could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth . Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given \u201c a concrete and realistically attainable chance \u201d to regain his freedom at some later point in time .","The court underlined that prisons also had a duty to strive towards the re - socialisation of prisoners , to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment . It recognised , however , that , for a criminal who remained a threat to society , the goal of rehabilitation might never be fulfilled ; in that case , it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself . The court also found that , subject to these conclusions , life imprisonment for murder was not a senseless or disproportionate punishment .","In the later War Criminal case CARDINAL BVerfGE CARDINAL ( DATE ) , where the petitioner was DATE of age and had served DATE of a life sentence imposed for sending CARDINAL people to the gas chambers , the court considered that the gravity of a person \u2019s crime could weigh upon whether he or she could be required to serve his or her life sentence . However , a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality , state of mind , and age of the person . In that case , any subsequent review of the petitioner \u2019s request for release would be required to weigh more heavily than before the petitioner \u2019s personality , age and prison record .","In its decision of DATE , BVerfG , DATE , ORG considered an extradition case where the offender faced \u201c aggravated life imprisonment until death \u201d ( erschwerte lebensl\u00e4ngliche GPE bis zum PERSON ) in GPE . The NORP government had sought assurances that he would be considered for release and had received the reply that the President of GPE had the power to remit sentences on grounds of chronic illness , disability , or old age . The court refused to allow extradition , finding that this power of release offered only a vague hope of release and was thus insufficient . Notwithstanding the need to respect foreign legal orders , if someone had no practical prospect of release such a sentence would be cruel and degrading ( grausam und erniedrigend ) and would infringe the requirements of human dignity provided for in LAW .","Section CARDINAL of LAW provides that the LAW guarantees the rights and freedoms set out in it \u201c subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society . \u201d LAW provides :","\u201c Everyone has the right to life , liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice . \u201d","Section CARDINAL provides :","\u201c Everyone has the right not to be subjected to any cruel and unusual treatment or punishment . \u201d","In GPE v. PERSON [ DATE ] S.C.R. CARDINAL , PERSON and another ( the respondents ) were to be extradited from GPE to the ORG of GPE to stand trial for murders allegedly committed when they were both DATE . Before making the extradition order the NORP Minister of ORG had not sought assurances that the death penalty would not be imposed . ORG found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section CARDINAL but under section CARDINAL . However , the values underlying section CARDINAL could form part of the balancing process engaged under section CARDINAL . The extradition of the respondents would , if implemented , deprive them of their rights of liberty and security of person as guaranteed by section CARDINAL . The issue was whether such a deprivation was in accordance with the principles of fundamental justice . While extradition could only be refused if it \u201c shocked the conscience \u201d an extradition that violated the principles of fundamental justice would always do so . The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought . The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice , even for young offenders over DATE . The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances . The court held therefore that assurances were constitutionally required by section CARDINAL in all but exceptional cases .","In GPE v. PERSON ; GPE v. GPE , [ DATE ] CARDINAL SCR CARDINAL , the appellants were to be extradited to GPE to face charges of fraud ( the PERSON case ) or trafficking of cocaine ( the GPE case ) . The appellants in the GPE case had argued that , if extradited and convicted they could receive sentences of DATE to life without parole and this would \u201c shock the conscience \u201d . In dismissing the appeals , ORG affirmed the balancing approach laid down in PERSON to determining whether potential sentences in a requesting state would \u201c shock the conscience \u201d . The harsher sentences the appellants might receive if convicted in GPE were among the factors militating against their surrender but they had offered no evidence or case - law to back up their assertions that the possible sentences would shock the conscience of NORP . The factors favouring extradition far outweighed those that did not .","ORG has also found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment within the meaning of section CARDINAL of the Charter ( see , inter alia , R v. PERSON ( PERSON ) [ DATE ] CARDINAL SCR CARDINAL ) . In R v. PERSON [ DATE ] CARDINAL S.C.R. CARDINAL , the court considered that , for first degree murder , a mandatory minimum sentence of life imprisonment without eligibility for parole for DATE was not grossly disproportionate . Similarly , in R v. PERSON DATE CARDINAL SCR CARDINAL , for second degree murder , a mandatory minimum sentence of life imprisonment without eligibility for parole for DATE was not grossly disproportionate . The court observed that gross disproportionality would only be found on \u201c rare and unique occasions \u201d and that test for determining this issue was \u201c very properly stringent and demanding \u201d .","In Dodo v. the ORG ( CCT CARDINAL\/CARDINAL ) [ DATE ] ZACC CARDINAL , ORG considered whether a statutory provision which required a life sentence for certain offences including murder , was compatible with the constitutional principle of the separation of powers , the accused \u2019s constitutional right to a public trial and the constitutional prohibition on cruel , inhuman or degrading treatment or punishment . The court found none of these constitutionals provisions was infringed , since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances . The court did , however , observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel , inhuman or degrading .","In PERSON v. The ORG ( ORG CARDINAL\/CARDINAL ) [ DATE ] ZACC CARDINAL , the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a \u201c habitual criminal \u201d to be grossly disproportionate because it could amount to life imprisonment for a non - violent offender . The court \u201c read in \u201d a maximum sentence of DATE to the relevant statute .","LAW to LAW provides , inter alia , that cruel and unusual punishments shall not be inflicted . It has been interpreted by ORG as prohibiting extreme sentences that are grossly disproportionate to the crime ( PERSON v. GPE CARDINAL PERSON . DATE , DATE ( DATE ) ) . There are CARDINAL categories of cases addressing proportionality of sentences .","The first category is a case - by - case approach , , the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions . If that analysis confirms the initial inference of gross disproportionality , a violation of LAW is established .","In the second category of cases , ORG has invoked proportionality to adopt \u201c categorical rules \u201d prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders .","Under the first category , ORG has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque ( PERSON v. Helm CARDINAL GPE CARDINAL ( DATE ) ) . It has upheld the following sentences : life with the possibility of parole for obtaining money by false pretences ( PERSON v. PERSON GPE CARDINAL ( DATE ) ) ; life imprisonment without parole for possessing a large quantity of cocaine ( GPE v. GPE CARDINAL GPE CARDINAL ( DATE ) ) ; DATE to life for theft under a \u201c CARDINAL strikes \u201d recidivist sentencing law ( PERSON v. GPE CARDINAL GPE CARDINAL ( DATE ) ) ; DATE years\u2019 imprisonment for distributing marijuana ( PERSON v. ORG ( DATE ) ) .","Examples of cases considered under the second category include ORG v. GPE CARDINAL GPE CARDINAL ( DATE ) ( prohibiting capital punishment for rape ) and PERSON v. PERSON MONEY ( DATE ) ( prohibiting capital punishment for juveniles DATE ) . In PERSON , cited above , the court held that LAW also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide . The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence . Although a ORG was not required to guarantee eventual freedom to a juvenile offender convicted of a non - homicide crime , it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation . The court also held that a sentence lacking in legitimate penological justification ( such as retribution , deterrence , incapacitation and rehabilitation ) was , by its nature , disproportionate . Such purposes could justify life without parole in other contexts , but not life without parole for juvenile non - homicide offenders .","DATE . In PERSON v. the Queen [ DATE ] ORG CARDINAL ORG of ORG considered that a mandatory death penalty for murder by shooting was incompatible with section CARDINAL of LAW , which prohibits torture and ill - treatment in identical terms to LAW . Lord PERSON observed that to deny the offender the opportunity , before sentence is passed , to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated . The relevant law was not saved by the powers of pardon and commutation vested by the LAW in FAC , assisted by ORG ; in Lord PERSON \u2019s words \u201c a non - judicial body can not decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed \u201d .","In PERSON v. the State of GPE [ DATE ] UKPC CARDINAL the appellant had been sentenced to death . With the abolition of the death penalty in GPE , his sentence was commuted to a mandatory life sentence . ORG considered the ORG \u2019s judgment in GPE , cited above , and found that the safeguards available in GPE to prevent PERSON from being without hope of release were not available in GPE . ORG had interpreted such a sentence as condemning PERSON to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply . This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section CARDINAL of LAW ( provisions to secure protection of law , including the right to a fair trial ) . It had also been argued by the appellant that the mandatory nature of the sentence violated section QUANTITY ( the prohibition of torture , inhuman or degrading punishment or other such treatment ) . In light of its conclusion on section CARDINAL , the ORG considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section CARDINAL ( the presidential prerogative of mercy ) . It did , however , find that the safeguards available in GPE ( in the form of the Attorney - General \u2019s powers to recommend release and the President \u2019s powers to commute sentences or decree release ) were not available in GPE . It also acknowledged the appellant \u2019s argument that , as with the mandatory sentence of death it had considered in PERSON , a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case . ORG also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and , to this end , quoted with approval the dicta of Lord PERSON in PERSON and Lord Justice Laws in GPE ( at DATE and CARDINAL above ) .","In ORG v. PERSON [ DATE ] ORG CARDINAL , ORG held that a mandatory sentence of CARDINAL years\u2019 imprisonment for murder amounted to inhuman or degrading treatment in violation of section CARDINAL on the grounds that it was disproportionate .","In ORG v. Tcoeib [ DATE ] CARDINAL LRC CARDINAL ORG considered the imposition of a discretionary life sentence to be compatible with section CARDINAL of the country \u2019s constitution ( subsection ( c ) of which is identical to LAW ) . Chief Justice PERSON , for the unanimous court , found the relevant statutory release scheme to be sufficient but observed that if release depended on the \u201c capricious exercise \u201d of the discretion of the prison or executive authorities , the hope of release would be \u201c too faint and much too unpredictable \u201d for the prisoner to retain the dignity required by section CARDINAL . It was also observed that life imprisonment could amount to cruel , inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence . ORG of GPE found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in ORG v. PERSON CARDINAL LRC CARDINAL and ORG v Likuwa [ DATE ] CARDINAL LRC CARDINAL .","In PERSON v. GPE [ DATE ] HKCFA CARDINAL , ORG rejected a challenge to the mandatory life sentence for murder . It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel , inhuman or degrading punishment .","Section CARDINAL of the New Zealand LAW DATE also protects against disproportionately severe treatment or punishment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23056","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2003,"docname":"CAGLAYAN v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by PERSON PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated a plot of land belonging to the applicant in GPE . A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place .","On DATE , following the applicant \u2019s request for increased compensation , ORG awarded him an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum .","On DATE ORG upheld the decision of the firstinstance court . The due amount , which was MONEY ( TRL ) including the interest , was paid to the applicant on DATE .","Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest was increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .","A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , \u00a7 \u00a7 CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , \u00a7 \u00a7 CARDINAL - CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60001","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2001,"docname":"CASE OF JANSSEN v. GERMANY","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings","judges":"Fran\u00e7oise Tulkens","text":["The applicants are NORP citizens . They live respectively in GPE and PERSON . The application concerns proceedings initiated by PERSON , who died on DATE . After her death , her son ORG \u2013 PERSON and her daughter PERSON , born PERSON , continued the proceedings . PERSON \u2013 PERSON died on DATE . His widow PERSON and his daughter PERSON act in his stead in pursuing the case .","The husband of the original plaintiff PERSON worked between DATE and DATE as an asbestos fabric cutter in an area where asbestos mattresses were manufactured . During this period , the workers who were exposed to asbestos dust while working had to clean their clothes themselves . This was done by the original plaintiff PERSON Janssen for her husband . The husband contracted an asbestos dust \u2013 related lung disease ( asbestosis ) , which was recognised as an occupational disease by ORG ( Maschinenbau- und ORG ) . ORG paid the husband a pension until his death on DATE and subsequently a widow \u2019s and orphan \u2019s pension to the surviving family members .","Having contracted a mesothelioma , an asbestosis related disease , PERSON applied on DATE to ORG for compensation payments , claiming that her illness was the consequence of the daily cleaning of her husband \u2019s work clothes . On DATE ORG dismissed her request holding that her activity was not covered by the industrial health insurance , since she had acted on a strictly private basis and not as an employee .","On DATE PERSON filed an objection ( Widerspruch ) against this decision which was rejected on DATE by ORG .","On CARDINAL DATE PERSON commenced proceedings before ORG ( ORG ) .","On DATE ORG invited the defendant ORG to comment on the claim and to submit the file . On DATE PERSON lawyer telephoned the court and requested that a date be fixed for a hearing as soon as possible . He expressed the fear that the plaintiff would not live to attend a hearing in DATE or DATE . On DATE ORG sent written observations and the administrative file to ORG . PERSON died on DATE . Written observations on her behalf were submitted on CARDINAL DATE . On CARDINAL DATE the court received a power of attorney on behalf of the applicants as heirs of PERSON without any further explanation . On CARDINAL DATE the parties were summoned to appear at a hearing on CARDINAL DATE . This hearing was cancelled on DATE .","On DATE the plaintiff \u2019s counsel informed the court about PERSON death . On DATE ORG requested the plaintiff \u2019s counsel to indicate the successors in title . It sent a reminder on DATE . The court received the requested information on DATE .","The proceedings were resumed on DATE . On CARDINAL DATE the parties were summoned to appear at a hearing on DATE . On CARDINAL DATE the plaintiff \u2019s counsel requested to anticipate TIME of the hearing . On DATE ORG cancelled the hearing . On DATE the court set the case down for hearing on DATE .","On DATE ORG dismissed the action on the ground that , pursuant to LAW and CARDINAL of LAW ( PERSON ) , the plaintiff was not insured against accidents at work . The court found that PERSON had not been an employee herself , nor had she acted like an employee . She had cleaned her deceased husband \u2019s clothes on ground of their living together , but not with a view to acting for her husband \u2019s employer .","On DATE the legal successors of the deceased appealed against the judgment to ORG ( ORG ) of GPE . The appeal was received by the court on DATE .","At a hearing held on DATE ORG summoned the employer to take part in the proceedings and requested him to submit information as to the kind of work carried out by his former employee DATE and as to the protection requirements to be complied with . The employer supplied information on DATE . The defendant filed written pleadings on DATE . On CARDINAL DATE ORG instructed doctors who had treated PERSON to submit reports . The court obtained medical reports from a general practitioner , PERSON , on DATE and from a hospital doctor , PERSON , on DATE . On DATE the court requested additional information which was submitted on DATE .","On DATE ORG had also instructed a medical expert , Prof . PERSON , to submit a report on the awareness at that time of health risks related to the exposure to asbestos and the existence of any protective measures . On DATE ORG had invited Prof . PERSON to reply to further detailed questions . Prof . PERSON \u2019s report dated CARDINAL DATE was received by the court on DATE .","On CARDINAL DATE the court summoned ORG ( Rheinischer Gemeindeunfallversicherungs- verband ) as a third party . It further requested Prof . PERSON to submit an expert opinion on the causes of PERSON mesothelioma disease . On DATE Prof . PERSON asked the court for certain information .","On DATE the court applied to ORG and a witness for further information .","On DATE the court sought supplementary advice from Prof . PERSON and supplied the information he had requested on CARDINAL DATE . On DATE the court reminded the expert to submit his report . The expert opinion dated DATE was received by the court on DATE .","By a judgment of CARDINAL DATE ORG modified the judgment pronounced on DATE by ORG . ORG considered that PERSON death was the consequence of an occupational disease . The court granted leave of appeal on points of law holding that the case raised issues of general interest ( grunds\u00e4tzliche GPE ) .","ORG lodged an appeal on points of law ( Revision ) .","On DATE , PERSON son died . His widow and his daughter continued the proceedings as his legal successors .","By a judgment of CARDINAL DATE ORG ( GPE ) set the appellate court \u2019s judgment aside and dismissed the GPE appeal . ORG considered in particular that PERSON death was not the consequence of an occupational disease as the cleaning of her husband \u2019s work clothes mainly served the interests of the couple \u2019s household and not the employer \u2019s interests .","On DATE the applicants lodged a constitutional complaint alleging that the interpretation of Section CARDINAL of LAW by the social security courts of first and last instance violated the principle of equality before the law and the right to a fair hearing . Invoking LAW , the applicants further submitted that proceedings relating to professional diseases allegedly caused by asbestos lasted in general too long .","On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) declined to accept the case for adjudication on the ground that the constitutional appeal was inadmissible for lack of substantiation . The court further pointed out that a constitutional complaint could not be based on an alleged violation of ORG . This decision was notified to the applicants\u2019 lawyer on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82877","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF COLIBABA v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 3 (ill treatment while in detention and failure to conduct an effective investigation);Not necessary to examine Art. 13;Reminder inadmissible;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses - partial award (Convention proceedings)","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .","On DATE the applicant was arrested on charges of assaulting a police officer .","On DATE and DATE the applicant was allegedly tortured by police officer GPE and CARDINAL other police officers in order to extract a confession from him . According to the applicant , his hands and feet were tied together behind his back and a metal bar from a coat hanger was passed under his arms . The metal bar was placed on CARDINAL chairs and his body was suspended for TIME . His hands had been covered with cloth so that no traces of rope would remain on them . Loud music was played so that his cries would not be heard . While being suspended in this manner , his head was covered with a coat and he was beaten with a chair on the back of his head . These acts of brutality were accompanied by verbal and psychological aggression . The Government contested the allegations of ill - treatment .","DATE , after being taken to his cell , the applicant attempted to commit suicide by cutting his veins . However , his attempt was not successful and he was taken to hospital .","On DATE the applicant was allowed for the first time to have contact with his lawyer , but only in the presence of police officers . The applicant complained to the lawyer that he had been tortured .","According to the applicant , as a retaliatory measure for his complaint to the lawyer , TIME he was again tortured . He was hit on the head with a QUANTITY plastic bottle full of water and also punched and kicked . The Government disputed these allegations .","On DATE the applicant 's lawyer lodged with the ORG prosecutor 's office a criminal complaint concerning the alleged ill - treatment of the applicant .","On DATE the applicant was taken by the police officers who had allegedly ill - treated him to ORG , where he underwent a medical check - up in their presence . His lawyer was not present and , according to the applicant , the medical examination only lasted TIME and was superficial .","The medical report issued by ORG was dated DATE and concluded that besides the injury caused by his attempted suicide , the applicant did not have any other signs of violence on his body .","On DATE the ORG prosecutor 's office ordered that police officer GPE be removed from the applicant 's case on account of the latter 's complaint alleging ill - treatment . The police officer was prohibited even from accompanying the applicant to and from the detention centre . The removal was justified by the need to ensure the objectivity of the investigation into the applicant 's complaints .","On CARDINAL DATE the applicant 's lawyer requested the prosecutor of LOC to authorise the applicant to undergo , inter alia , neurological , ophthalmological , psychiatric and other medical examinations . He requested that the medical examinations be carried out by independent doctors in the presence of the applicant 's relatives . This request was refused .","On DATE , following complaints by the applicant 's lawyer , ORG organised action in support of the applicant by publishing on their NORP internet site a description of the applicant 's case and an appeal to people from all over the world to write to ORG , ORG and ORG in their country asking them to take action , such as conducting a medical examination of the applicant and carrying out an effective investigation into his complaints of torture , and allowing the applicant to meet his lawyer in conditions of confidentiality .","Following ORG action , the GPE authorities received CARDINAL letters from different countries and the applicant 's case was widely reported in the mass media .","On DATE the applicant was released from detention . On DATE he sought medical assistance at the \u201c LOC ORG , a non - governmental organisation financed by ORG and a member of ORG of ORG ( ORG ) . He appears to have been subjected there to detailed medical tests and examinations by various medical specialists . In a document entitled \u201c Extract from the medical file \u201d ( \u201c Extras din PERSON \u201d ) , dated DATE , issued by ORG , it was stated , inter alia , that the applicant had suffered the consequences of cranial trauma , post - traumatic otitis and mixed deafness on the right side and hypoacusis ( slightly diminished auditory sensitivity , with hearing threshold levels above normal ) on the left side .","On DATE the applicant underwent a medical check - up at ORG and ORG . It appears that he was directed there by doctors from the \u201c ORG who had diagnosed cranial trauma . He was seen by a neurosurgeon , who confirmed that the applicant had suffered cranial trauma and concussion with permanent vegetative disorder and intracranial hypertension . Moreover , the doctor found that the applicant was experiencing loss of consciousness , post - traumatic otitis and sleep disorder . The medical report of ORG and ORG was not issued to the applicant until DATE .","On DATE the prosecutor PERSON from the ORG prosecutor 's office dismissed the applicant 's torture complaint . In his decision he stated , inter alia , that the CARDINAL policemen allegedly involved in acts of torture had been questioned and had denied all the accusations ; that according to the medical report dated DATE , the applicant did not have any signs of torture on his body ; and that in the office where he had allegedly been tortured no coat hanger had been found . As to his attempted suicide , the prosecutor considered that it had been simulated so as to avoid criminal responsibility .","On CARDINAL DATE the applicant appealed to ORG against the decision of CARDINAL DATE . He argued , inter alia , that the prosecutor had refused to allow him to undergo a complete medical examination , as requested by him on DATE , and that this was contrary to the authorities ' positive obligations under LAW . He also informed the court that immediately after his release from detention he had undergone a medical examination which established that he had been tortured during his detention .","On DATE ORG held a hearing in the case concerning the applicant 's complaint of torture . The applicant 's lawyer requested that the medical report of ORG and ORG dated DATE be included in the case file . Judge PERSON admitted the report in evidence . However , in a decision of DATE he dismissed the appeal as unfounded without giving an assessment of any of the above evidence . He simply repeated the reasons given by the prosecutor PERSON in his decision of CARDINAL DATE dismissing the complaint of torture .","On DATE , after the medical report from the \u201c LOC ORG had become available to him , the applicant wrote to the ORG prosecutor 's office asking it to re - examine his ill - treatment complaint in the light of the medical report . However , on DATE he was informed that there were no grounds for reopening the investigation .","In the meantime , on DATE , the applicant had lodged an application with ORG in which he complained under LAW that he had been tortured and that there had been no effective investigation into his allegations of torture .","On DATE the Prosecutor General of GPE , PERSON , wrote a letter to ORG , in which he stated , inter alia , the following :","\u201c Lately , ORG has been confronted with the phenomenon whereby some NORP lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases . These organisations are used as an instrument for serving personal interests and for avoiding the criminal responsibility of suspected persons .","Examples of such incidents are the case of PERSON , triggered by the lawyer PERSON , and the case of GPE , triggered by the lawyer PERSON . The international mediatisation of these cases prompted active action by the representatives of ORG with a view to safeguarding the rights of the above lawyers ' clients .","After having examined sufficiently thoroughly the complaints alleging torture and abuse on the part of the police ... ORG dismissed the complaints on the ground of lack of proof that offences had been committed . ...","... In such circumstances the irresponsible attitude and behaviour of the lawyers GPE and PERSON give rise to concern . They knew that no acts of torture had been committed against their clients . However , they complained to international organisations without first attempting to use the national mechanism for solving such problems . They presented the facts erroneously in order to win their cases ...","Such practices by lawyers will be investigated by ORG in order to determine whether they have committed the offence provided for in LAW , by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country .","Accordingly , ORG is called upon to take account of the facts described above , to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of GPE . \u201d","The above letter generated a heated debate in the media . On DATE ORG issued an official statement in which it qualified the Prosecutor General 's letter as an attempt to intimidate lawyers . In an interview to the newspaper PERSON the President of ORG declared , inter alia , that this was an attempt to intimidate lawyers so that they would not complain to the ORG any more . At the same time ORG organised action in support of the lawyers mentioned in ORG letter and issued a statement in which it declared , inter alia , the following :","\u201c [ ORG ] is concerned that the letter to ORG is a deliberate attempt to intimidate GPE and PERSON , and to prevent lawyers in GPE from making public information about human rights violations . It is a violation of the right to freedom of expression , and if the lawyers were to be imprisoned for this offence ORG would consider them prisoners of conscience . \u201d","The relevant provisions of LAW read as follows :","\u201c LAW Abuse of official duties","Intentional use by a person ... of his or her official duties for personal gain or for other personal interests ... shall be punishable by a fine of ... or by imprisonment for DATE .","The same offence committed by a notary , auditor or lawyer shall be punishable by a fine of MDL CARDINAL , or by imprisonment for DATE ... \u201d"],"violated_articles":["3","34"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84289","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF KOLODZINSKI v. POLAND","importance":4,"conclusion":"Violation of Art. 8","judges":"Giovanni Bonello;Kristaq Traja;Lech Garlicki;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant was arrested on suspicion of robbery . On DATE the ORG ( S\u0105d Rejonowy ) ordered that the applicant be remanded in custody until DATE . It found that there were reasonable grounds \u2013 in particular , evidence from witnesses DATE for suspecting him of the offence charged . The court further noted that the applicant was liable to a statutory maximum sentence of DATE imprisonment . It also found that there was a risk that the applicant might tamper with evidence .","On DATE the ORG prolonged the applicant \u2019s detention until DATE . It considered that the reasons for keeping him in detention were still valid and the need to secure the proper conduct of the investigation justified holding him in custody . It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant . It also found that there was a risk that the applicant might tamper with evidence , given the nature of the charges against him and the fact that he had acted with other co - accused .","The applicant \u2019s detention was subsequently prolonged by ORG on unspecified dates . The courts\u2019 decisions were based on Article CARDINAL \u00a7 CARDINAL of LAW , which lists grounds for pre - trial detention , such as , the risk that an accused will abscond or go into hiding or a justified fear that an accused will attempt to induce witnesses or co - defendants to give false testimony or to obstruct the proper course of proceedings by any other unlawful means .","On DATE the ORG convicted the applicant of CARDINAL counts of robbery and sentenced him to DATE and CARDINAL months\u2019 imprisonment . The applicant appealed .","On DATE the ORG ( PERSON ) upheld the impugned judgment .","The applicant did not lodge a cassation appeal .","The applicant \u2019s letter to the ORG dated DATE bears a stamp marked \u201c censored \u201d ( cenzurowano ) , \u201c the prosecutor \u201d ( prokurator ) followed by an illegible signature . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape . According to the postmark the letter was posted on DATE .","The application form submitted by the applicant and dated DATE bears a stamp marked \u201c censored \u201d ( cenzurowano ) , \u201c the judge \u201d ( s\u0119dzia ) followed by an illegible signature . The envelope bears a stamp confirming that the applicant \u2019s letter was received for dispatch by the prison administration on DATE . However , according to the postmark the letter was not posted until DATE . It also appears that the envelope was cut open and subsequently resealed with adhesive tape .","The relevant domestic law concerning the censorship of ORG correspondence is set out in the ORG \u2019s judgment in the case of Michta v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84339","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2008,"docname":"CASE OF KEARNS v. FRANCE","importance":3,"conclusion":"No violation of Art. 8;Remainder inadmissible","judges":"Alvina Gyulumyan;David Th\u00f3r Bj\u00f6rgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa","text":["The applicant was born in DATE and lives in GPE . She is married to T.","On DATE she went to ORG , in GPE , together with her mother and a NORP lawyer , to request anonymous registration of the forthcoming birth of her child ( accouchement sous X ) .","She was admitted to the maternity ward on DATE , and on DATE she gave birth to a girl , PERSON , from an extramarital relationship with PERSON .","On DATE she had an interview lasting DATE with the social services , in the presence of her mother and a nurse who had been asked to act as an interpreter by the hospital . On DATE she signed a record of the child \u2019s placement in State care in accordance with LAW CARDINAL - CARDINAL of ORG , handing over a folder intended for the child , which contained a letter , photographs and administrative documents .","In the record she indicated that she wished to have the child taken into ORG care , to request secrecy and to give her consent to adoption under LAW . She stated that the child was born out of wedlock and was not recognised by the father .","The section entitled \u201c Reasons for the placement \u201d contained the following details :","\u201c [ The applicant ] wishes to keep secret the reasons why she is giving her child up for adoption . She would prefer to hand us the attached documents , which will be released to the child at her request on reaching the age of majority ( letter , photos , official documents ) . Secrecy has been requested purely to \u2018 protect her baby\u2019 from the violent and unbalanced biological father . \u201d","The section entitled \u201c Information on the placement \u201d stated :","\u201c We have informed her of the following : ...","( CARDINAL ) PERSON - limits and conditions for return of the child :","\u2013 a child who is claimed back within DATE by the parent who entrusted the child to ORG will be returned to that parent without any further formalities ( Article L. CARDINAL - CARDINAL , paragraph CARDINAL , of ORG ) .","\u2013 if the child has a second parent who did not entrust him or her to the service and who claims the child back within DATE , the child will be returned to that parent without any further formalities ( same Article ) .","\u2013 once these periods have expired ( DATE if the sole parent or both parents entrusted the child to the service ; DATE if the second parent did not entrust the child to the service ) , an application for judicial review of the child \u2019s placement in ORG care may be lodged , within DATE from the date of the formal registration , with the tribunal de grande instance ( Article L. CARDINAL - CARDINAL of ORG ) .","\u2013 beyond these time - limits :","* if the child has been placed for adoption , any application to have the child returned will be inadmissible ( Article CARDINAL of LAW ) ...","( CARDINAL ) Conditions for withdrawal of consent to adoption ( LAW , paragraphs CARDINAL and CARDINAL , of LAW )","We have given her the following :","\u2013 a notice setting out the effects of placement in ORG care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent ;","\u2013 a model letter requesting the return of the child and\/or withdrawing consent to adoption , if consent has been given . \u201d","On DATE ( DATE ) the applicant gave her consent to the child \u2019s adoption . The form of consent stated , inter alia :","\u201c I ... certify that I have been informed :","...","NORP about the effects of consent to adoption , namely :","\u2013 that the placement is secret ,","\u2013 that I forfeit all my rights over the child ,","\u2013 that placement for adoption constitutes a bar to any recognition , declaration of filiation or application for recovery .","NORP that this document will become ORG after a period of DATE , on DATE , and that during this period the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent ( Article CARDINAL - CARDINAL , paragraphs CARDINAL and CARDINAL , of LAW ) .","I hereby declare that I formally consent to the adoption of my child ... , leaving the choice of the adopter to ORG .","I acknowledge that I have received :","\u2013 a notice setting out the time - limits and conditions for the return of my child ,","\u2013 a model letter for withdrawal of consent to adoption and to the record of the child \u2019s placement in ORG care . \u201d","On DATE the applicant had a further interview lasting DATE with the social services , in the presence of a doctor acting as an interpreter , during which , at her request , various matters relating to the record signed DATE were discussed .","On DATE , after approval had been given by ORG , the chairman of the ORG council , as the official guardian of children in ORG care , placed PERSON in the care of PERSON and PERSON with effect from that date with a view to her full adoption .","In the meantime , PERSON , the child \u2019s biological father , had applied to ORG for recognition of his rights over the child . In decisions of DATE and CARDINAL and DATE ORG directed that the adoption process in GPE should not proceed any further , that the name and a photograph of the child were to be sent to PERSON and that its decisions were to be forwarded to the ORG d\u00e9partement council and the NORP social services .","On DATE and DATE the applicant went to the hospital \u2019s maternity ward and subsequently to the NORP social services , seeking the return of the child . According to a note drawn up by the social services , her request was based on CARDINAL reasons : firstly , the biological father had learned of the child \u2019s birth in the meantime and had brought an action in GPE , and secondly , she had managed to persuade her husband to recognise the child . Her request was refused because the DATE time - limit for withdrawing consent had expired .","The applicant then applied to the GPE tribunal de grande instance , seeking the annulment of the decision to give the child up and an order for her return . She submitted that the consent she had given on DATE had been invalid on account of the family pressure exerted on her and because she had not realised the consequences of registering the birth anonymously , since the process had been explained to her without an interpreter being present . She argued that NORP law contravened Articles CARDINAL and CARDINAL of the Convention .","The child \u2019s biological father , PERSON , intervened in the proceedings .","In a judgment of DATE the court dismissed the applicant \u2019s claims , holding as follows :","\u201c In support of her application for the annulment of the decision to give up the child born on DATE and for the child \u2019s return , PERSON alleges that an error was committed as to the meaning and scope of the document of DATE .","PERSON , an NORP national living and working in GPE , came to the maternity ward in GPE to give birth on DATE . On that occasion she expressed the wish for her admission and her identity to be kept secret .","The exercise by any woman of this right , which is enshrined in LAW and which the legislature has to date had no intention of reconsidering , is governed by the provisions of LAW , as amended by LAW of DATE .","It appears from the evidence before the court ... that CARDINAL lengthy interviews were held in order to explain to this woman the conditions and effects of anonymous registration of a birth . These interviews took place in the presence of NORP speakers , and PERSON , who chose to come to GPE to give birth , can not expect the social services to have offered anything more in this respect , particularly not the presence of an official interpreter , which is not provided for or required by any statutory instrument . Furthermore , it appears from the proceedings ... and from the written submissions summarising her counsel \u2019s address ... that PERSON was taken to hospital by a lawyer ; she had therefore clearly sought legal advice prior to the birth .","Accordingly , no matter what psychological state the applicant may have been in , like any woman opting to give birth in these circumstances , it appears that PERSON was nevertheless fully aware of both the immediate and the future implications of her actions and decisions . She thus acted quite consciously in having the birth registered anonymously and giving the child up to the social services to be taken into ORG care , and there are no grounds for arguing that her intellectual faculties were impaired or that the consent was invalid in any way ; moreover , the question of consent is not applicable from a civil - status perspective .","In addition , as regards the formal propriety of the document of DATE , once a child is entrusted to the social services , the latter assume a number of obligations , including the provision of information ... It appears from the record of the child \u2019s placement , which contains entries whose existence is not disputed , that the social services fulfilled their obligation to provide information on a child \u2019s placement in ORG care and the ensuing legal effects . Such information was , moreover , provided in LANGUAGE , and the notice and model letter requesting the return of the child were indeed given to PERSON . Furthermore , PERSON fully understood the meaning and scope of this information since she left documents for the child in the event that the latter expressed the wish to discover her origins at a future date .","PERSON clearly expressed her wish that the child should never be able to have legal ties to her . Moreover , she did not withdraw her consent within DATE . It should be noted in this connection that this right is strictly personal ; accordingly , no action by a third person may be treated as an action to withdraw consent , that being the sole prerogative of the mother , or interrupt the relevant period .","Accordingly , there are no grounds for declaring null and void the record of DATE , which served as an entirely valid basis for the placement in ORG care ( first provisionally and later with final effect ) of the child born on DATE with no established parentage ...","Since the mother did not apply for the return of the child within DATE after giving her up , the child , who has no legally established parentage , was able to be placed with foster parents by the ORG authorities with a view to her adoption under LAW .","Such placement for adoption , by virtue of the provisions of LAW , constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition . The first ground of appeal must therefore be declared ineffective .","PERSON further alleges a violation of ORG and CARDINAL of LAW .","As stated above , PERSON gave birth ... while wishing to keep the birth and her identity secret , a right enshrined in LAW and given effect by ORG .","More generally , these ORG govern the conditions for giving up a child , for consent to adoption or for anonymous registration of a birth , as well as the conditions and procedures applicable in the event of repudiation and\/or withdrawal of any of these measures .","They strike a delicate balance between the rights of a mother , which the legislature has to date had no intention of reconsidering , to give birth anonymously with the consequences that entails , and the rights of the foster parents and of the child , whose rights are now framed in such a way as to allow him or her access to more information , if he or she so desires , but in whose interests stability and certainty , both psychological and legal , must be sought , if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures .","The instant case thus can not be said to involve any discrimination or deprivation of the enjoyment of a right secured to the mother or the child by LAW , or indeed our national law , within the meaning of LAW . Similarly , no matter how short they are , time - limits do exist in NORP law for bringing an action in the ordinary courts , constituting , within the meaning of LAW ... , an effective remedy before a national authority independent of the administrative authority that may be required to rule on an application for the return of a child or to approve an adoption . \u201d","The applicant appealed . In a judgment of CARDINAL DATE ORG set aside the first - instance judgment . After reiterating the content of the record of DATE , and in particular the information it provided , the court held :","\u201c Paragraph CARDINAL of the section on information thus expressly mentions the existence of CARDINAL time - limits for the child \u2019s return without any further formalities , CARDINAL being DATE ( the only possible limit that could apply in the instant case ) , the other being DATE , where the second parent has not entrusted the child to the social services .","This DATE time - limit is mentioned on CARDINAL further occasions , firstly in relation to the right to have the child returned to the second parent and secondly in indicating that even after the expiry of the DATE and DATE periods , a court action may still be brought .","This information could have misled PERSON ... since in reality the DATE time - limit applicable under LAW in the circumstances referred to in LAW did not apply in the instant case , there being no established paternity as the mother had registered the birth anonymously , and the placement therefore came under point ( CARDINAL ) of Article L. CARDINAL - CARDINAL .","PERSON , an NORP national who is a native NORP speaker and does not speak LANGUAGE , could not have known the consequences in LANGUAGE law of anonymous registration of the birth , in terms of her rights and those of the biological father , and the information given was in no way capable of enlightening her in a clear and precise manner .","Having been informed of the existence of a DATE time - limit where \u2018 the child has a second parent who did not entrust him or her to the service\u2019 , she may legitimately have thought , in the light of the information set out in the record , that this time - limit was applicable in her case since she had on several occasions notified the local health and social services department of the existence of a biological father who had not been informed of the placement procedure .","It will be observed that there is no mention in the record that an interpreter was present when it was signed and that it has not been disputed that a member of the maternity ward staff assisted with the translation and the explanation in LANGUAGE of the information given in LANGUAGE to PERSON ... However , a translation of this nature , which was provided by a person who used LANGUAGE only occasionally and did not have specific legal knowledge , and which , moreover , was based on particularly ambiguous information as to the time - limits , did not enable PERSON ... to have access to proper information about her rights regarding the procedures for withdrawing consent .","It therefore appears that the information provided to the appellant concerning the right to have the child returned was inaccurate or at least particularly ambiguous , and was set out in a pre - printed document not specially adapted to the procedure of anonymous birth registration but designed for use in any of the circumstances covered by Article L. CARDINAL - CARDINAL of ORG for the taking of a child into ORG care ; that reference was made to a DATE time - limit not applicable in her case ; and that , moreover , being an native NORP speaker , the mother was not effectively informed of the procedures for the return of her child and of the strict DATE time - limit that applied in her case .","Furthermore , it has not been shown in any way that PERSON ... otherwise received any clear information before the record was signed as to her right to recover the child .","The note by PERSON who also drew up the record in issue \u2013 besides having no evidential value , since it was written by a party to the proceedings , does not contain any clarification as to the information given to PERSON ... about the time - limit for withdrawing consent .","Similarly , the fact that PERSON ... was in contact with a NORP lawyer prior to the birth does not mean that she received precise information from him about the exclusive nature of the DATE time - limit ...","PERSON belief ... in the possibility of recovering the child within DATE period is corroborated by the request she made in person on CARDINAL and DATE to the ORG health and social services department , citing this time - limit , and by the subsequent letters from her lawyer , which also state that his client thought that she could take her child back within such a period .","Having regard to all these considerations , it appears that PERSON ... placed her child in State care while believing \u2013 legitimately , in view of the ambiguous information she had received when signing the record of the placement \u2013 that she could take her back within DATE and that this time - limit also applied to PERSON , who had , moreover , instituted proceedings in GPE on DATE .","This error as to the time - limit for the return of the child concerns a significant element of her consent to the child \u2019s placement in ORG care , especially as the provisions of Article L. CARDINAL - CARDINAL of ORG Code require precise information on the subject to be given to the mother .","In these circumstances , the application for the record of the child \u2019s placement of DATE to be declared null and void must be allowed .","... seeing that the handing over of the child to the ORG authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on DATE , the child \u2019s placement in ORG care is to be retrospectively annulled and can not therefore have any legal effect .","Accordingly , the application for the child to be returned to PERSON ... should be allowed , without there being any need to address the subsidiary arguments she submitted in support of that application .","Pursuant to Article CARDINAL - CARDINAL of ORG , parental ties shall be established between PERSON ... and the child to whom she gave birth in the maternity ward of ORG on DATE and a reference to this judgment shall be entered in the register of births , deaths and marriages for the town of GPE . \u201d","In a letter of CARDINAL DATE the applicant \u2019s lawyer asked the prefect to enforce the judgment and to return the child to her mother . No action was taken on this request .","The prefect for the d\u00e9partement of ORG appealed on points of law , arguing that in the absence of recognition by the mother of the child to whom she had given birth anonymously , it was not necessary to obtain her consent for the child to be taken into ORG care .","In a judgment of DATE ORG allowed the appeal , holding as follows :","\u201c [ Article L. CARDINAL - CARDINAL , point ( CARDINAL ) , of ORG ] provides that children whose parentage has not been established or is unknown and who have been entrusted to ORG for DATE are deemed to have been taken into ORG care .","On DATE PERSON n\u00e9e PERSON ) gave birth anonymously . On DATE a record of the child \u2019s placement in ORG care with ORG was drawn up in accordance with Article L. CARDINAL - CARDINAL of ORG . On DATE the child was placed for adoption after ORG had given its approval on DATE . On DATE Mrs T. unsuccessfully sought to have the child returned to her . In applications of CARDINAL DATE and DATE she brought proceedings against the prefect of the d\u00e9partement of ORG , seeking the return of the child .","In allowing her claim , ORG held that the child \u2019s placement with the ORG authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on DATE , seeing that when the record was signed PERSON had received only ambiguous information about the period within which she could take her child back .","In so holding , despite the fact that in the absence of recognition , the child \u2019s parentage was not established , such that PERSON consent was not required when the child was taken into care ... , ORG breached the provision cited above . \u201d","ORG therefore quashed and annulled ORG judgment in its entirety and , applying Article CARDINAL , paragraph CARDINAL , of LAW ( by which it may put an end to the dispute by applying the appropriate legal rule ) , dismissed the applicant \u2019s claims .","The full adoption procedure , which had been suspended , was resumed by PERSON and PERSON In a judgment of DATE the GPE tribunal de grande instance allowed their application and made a full adoption order in respect of the child .","The history and development of the system of anonymous registration of births in GPE is set out in PERSON v. GPE ( [ ORG ] , no . ORG , \u00a7 \u00a7 DATE , ECHR CARDINAL ) .","The following provisions of ORG are relevant to the present case :","\u201c The following shall be taken into ORG care :","( CARDINAL ) NORP children whose parentage is not established or is uncertain and who have been entrusted to ORG for DATE ; ... \u201d","\u201c Where a child is entrusted to ORG in the circumstances referred to in Article L. CARDINAL - CARDINAL , points ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) , a record shall be drawn up .","It shall mention that the parents in respect of whom the child \u2019s filiation has been established , the child \u2019s natural mother or natural father or the person handing the child over have been informed about :","( CARDINAL ) the measures introduced , in particular by the ORG , the local authorities and the social - security bodies , to help parents to raise their children themselves ;","( CARDINAL ) the rules governing placement in ORG care in accordance with this LAW ;","( CARDINAL ) NORP the time - limits and conditions subject to which the child may be taken back by the father or mother ;","( CARDINAL ) the possibility of leaving behind any information concerning the health of the father and mother , the child \u2019s origins and the reasons for which and circumstances in which the child was placed with ORG .","Furthermore , where the child is entrusted to the service by the father or mother in accordance with points ( CARDINAL ) or ( CARDINAL ) of Article L. CARDINAL - CARDINAL , the parent or parents concerned must be asked to consent to the child \u2019s adoption ; such consent shall be noted in the record , which must also mention that the parents have been informed of the time - limits and conditions in which they may withdraw their consent , in accordance with the second and third paragraphs of LAW . \u201d","\u201c The child shall be deemed to have been provisionally taken into ORG care on the date on which the record referred to in Article L. CARDINAL - CARDINAL is drawn up . Guardianship arrangements shall be made with effect from the date of such declaration .","However , within DATE from the date of the provisional placement in ORG care , the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service . This period shall be extended DATE , in the circumstances specified in Article L. CARDINAL - CARDINAL , point ( CARDINAL ) , for whichever parent did not entrust the child to the service .","Beyond these periods , the decision to agree to or refuse the return of a child in ORG care shall , subject to the provisions of LAW , be taken by the official guardian , with the agreement of ORG . In the event of a refusal , the persons concerned may apply to the tribunal de grande instance . \u201d","The relevant provisions of LAW are worded as follows :","\u201c The following may be adopted :","( CARDINAL ) NORP children in respect of whom the mother and father or ORG have validly consented to adoption ;","( CARDINAL ) NORP children in State care ;","( CARDINAL ) NORP children declared abandoned in the circumstances provided in LAW . \u201d","\u201c Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated , or before a NORP or a foreign notary , or before NORP diplomatic or consular officials . It may also be received by ORG if the child has been entrusted to the service .","Consent to adoption may be withdrawn within DATE . Withdrawal of consent shall be effected by means of a registered letter with recorded delivery , addressed to the person or the service that received the consent . The handing over of the child to the parents on request , even a verbal request , shall also be treated as proof that consent has been withdrawn .","If , on the expiry of the DATE period , consent has not been withdrawn , the parents may still request the return of the child , provided that the child has not been placed for adoption . If the person who has received the child refuses to give him or her back , the parents may apply to the court , which shall determine , having regard to the child \u2019s interests , whether the return of the child should be ordered . The child \u2019s return shall invalidate the consent to adoption . \u201d","ORG takes the position that , where a mother gives birth anonymously , there are no established parental ties between her and the child and that , accordingly , her consent to adoption is not required .","Thus , in a judgment of CARDINAL DATE ( Bulletin CARDINAL I no . CARDINAL , p. CARDINAL ) in a case concerning a request for the return of an anonymously registered child born to a minor , ORG quashed the judgment of ORG , which had annulled the record of the child \u2019s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility . It held as follows :","\u201c In so holding , despite the fact that in the absence of recognition , parental ties had not been established , so that it was not necessary to obtain PERSON consent when the child was entrusted to ORG , ORG breached the provision cited above [ LAW , point ( CARDINAL ) , of LAW ] . \u201d","Conversely , in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth , ORG , relying in particular on FAC on the Rights of the Child , quashed and annulled the judgment of ORG , which had declared inadmissible the father \u2019s application for the return of the child . It gave the following reasons :","\u201c ... in so holding , despite the fact that , since the child had been identified by PERSON ... on a date prior to the consent to adoption , the child \u2019s paternity had been established with effect from the date of the birth as a result of this prenatal recognition , so that ORG , which had been informed of the recognition , could no longer ... validly consent to the child \u2019s adoption , consent being the sole prerogative of the biological father , ORG , disregarding the child \u2019s right to know its declared father , breached the provisions cited above . \u201d ( Court of Cassation , ORG , DATE , NORP affiches DATE )","DATE this LAW provides :","\u201c GPE Parties that recognize and\/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall :","( a ) Ensure that the adoption of a child is authorized only by competent authorities who determine , in accordance with applicable law and procedures and on the basis of all pertinent and reliable information , that the adoption is permissible in view of the child \u2019s status concerning parents , relatives and legal guardians and that , if required , the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ;","( b ) Recognize that inter - country adoption may be considered as an alternative means of childcare , if the child can not be placed in a foster or an adoptive family or can not in any suitable manner be cared for in the child \u2019s country of origin ;","( c ) Ensure that the child concerned by inter - country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption ;","( d ) Take all appropriate measures to ensure that , in inter - country adoption , the placement does not result in improper financial gain for those involved in it ;","( e ) ORG , where appropriate , the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements , and endeavour , within this framework , to ensure that the placement of the child in another country is carried out by competent authorities or organs . \u201d","This convention , which is not directly applicable to the present case since it concerns inter - country adoption , provides in DATE that the persons whose consent is necessary for adoption must \u201c have been counselled as may be necessary and duly informed of the effects of their consent \u201d , and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn . In addition , the consent of the mother , where required , must have been given only after the birth of the child .","This Council of Europe convention came into force on DATE . GPE has signed it but has not ratified it . Article CARDINAL provides :","\u201c CARDINAL . Subject to paragraphs CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :","( a ) the consent of the mother ...","A mother \u2019s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child , not being DATE , as may be prescribed by law , or , if no such time has been prescribed , at such time as , in the opinion of the competent authority , will have enabled her to recover sufficiently from the effects of giving birth to the child . \u201d","According to the explanatory report , the object of paragraph CARDINAL is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored .","The convention is currently undergoing a revision . LAW convention is worded as follows :","\u201c CARDINAL . Subject to paragraphs CARDINAL to CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :","a. the consent of the mother and the father ; or if there is neither father nor mother to consent , the consent of any person or body who is entitled to consent in their place ; ...","NORP The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent , in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin . The consent must have been given freely , in the required legal form , and expressed or evidenced in writing . ...","A mother \u2019s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child , not being DATE , as may be prescribed by law , or , if no such time has been prescribed , at such time as , in the opinion of the competent authority , will have enabled her to recover sufficiently from the effects of giving birth to the child . \u201d","The explanatory report states the following :","\u201c CARDINAL . Paragraph CARDINAL emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing . ...","The object of paragraph CARDINAL is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child \u2019s birth .","Paragraph CARDINAL contains a definition of the terms \u2018 ORG and \u2018 mother\u2019 . Given this definition , the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established . \u201d","Most NORP legal systems provide that consent must be obtained by a judge or notary independently of the placement process . Some countries allow the GPE consent to be obtained by the social services responsible for the child , by the director of the institution in whose care the child is placed or by the supervisory authority .","As regards the provision of information to the biological parents , some national regulations require adoption agencies to provide information on the legal effects of adoption , the adoption process and the other means of assistance available to them . In other countries this obligation falls directly to the judge , who must inform the parents of the legal effects of adoption and of their right to withdraw consent .","In order to ensure that the biological parents give their free and informed consent , most NORP legal systems have introduced a statutory period of reflection after the birth . In a similar manner to LAW ( see paragraphs CARDINAL - CARDINAL above ) , most legal systems envisage a period of not DATE , sometimes extending to DATE .","NORP Some countries simply make the validity of consent subject to \u201c the recovery of the mother after giving birth \u201d or to the condition that it is given after the birth . Lastly , the legislation in other countries makes no provision for a period of reflection , but \u201c prenatal \u201d consent remains prohibited by law in the vast majority of legal systems .","Some countries have instituted a period within which the biological parents may revoke their consent . There is considerable diversity in the legislation of the member GPE that have provided for this possibility ; some systems allow consent to be withdrawn until the adoption order is issued and others until the adoption process has been initiated , whereas others lay down fixed periods whose length varies from country to country . Lastly , in some countries the biological GPE consent is irrevocable .","The effects of withdrawal of consent likewise vary from CARDINAL ORG to another . In countries such as GPE or GPE , where consent may be revoked during a specified period , the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child \u2019s return . Conversely , in systems where consent may be withdrawn until the adoption order is issued , the withdrawal does not automatically end the process and the courts are required to make a decision on the child \u2019s return on the basis of the child \u2019s best interests ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104101","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2011,"docname":"OMELCHUK v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Angelika Nu\u00dfberger;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Mark Villiger","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr Y. GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant participated in a hearing before ORG ( \u201c the Regional Court \u201d ) as a legal representative . The judge dealing with the case found him to be in contempt of court . The applicant , in turn , approached the police officers in charge of keeping order on the court \u2019s LOC and told them that the judge had committed a crime . A dispute followed , as a result of which the applicant was arrested for disobeying the police .","Later on DATE the applicant was taken to ORG , where he was allegedly placed in a cage for TIME without any food or access to toilet facilities .","On DATE the ORG ( \u201c the ORG \u201d ) , by a final ruling delivered following a hearing at which the applicant was present , found him guilty of disobeying police orders and sentenced him to CARDINAL days\u2019 administrative detention . On DATE it issued another final ruling , again doing so after a hearing at which the applicant was present , by which it found him guilty of contempt of court and sentenced him to CARDINAL days\u2019 administrative detention . While waiting for the hearing on that date , the applicant was allegedly held in a cage in the court \u2019s basement without food .","On DATE ORG quashed both rulings of ORG under the extraordinary review procedure sought by the applicant and remitted the case for fresh examination . It noted , in particular , that the first - instance court had failed to duly establish the facts of the case , to indicate in a clear manner exactly what had amounted to contempt of court and disobeying police orders , to give adequate reasons for its treatment of the applicant \u2019s arguments or to consider applying less restrictive sanctions .","On DATE ORG examined the case in the applicant \u2019s absence and issued CARDINAL final rulings , by which it terminated the administrative offence proceedings against him as time - barred .","On DATE the applicant introduced with ORG ( \u201c the ORG \u201d ) and with ORG two identical complaints against ORG , alleging , in particular , that they had subjected him to ill treatment during his arrest on DATE .","On DATE ORG forwarded the complaint to ORG in accordance with the rules of territorial jurisdiction .","According to the applicant , ORG handled both of his complaints separately . By a ruling of DATE it stayed the examination of CARDINAL of the complaints and invited the applicant to specify his complaint and substantiate the violations he was complaining of by DATE . As this was not done , on DATE the court decided to deem the complaint as having not been lodged and to return it to the applicant . On DATE ORG upheld that ruling . As to the second complaint , on DATE ORG refused to accept it for examination , having noted that it contained allegations of criminal offences and therefore had to be submitted to the prosecution authorities for criminal investigation . On DATE and CARDINAL DATE ORG and ORG respectively upheld that ruling .","The applicant acted as the legal representative of PERSON and PERSON in civil proceedings . He also represented a private company , PERSON , before the domestic tax authorities . Following a refusal by the local tax office to register the aforementioned company as a taxpayer , the applicant unsuccessfully sought the initiation of criminal proceedings against the officials involved .","On DATE the ORG received the first letter from the applicant expressing his intention to introduce an application and outlining the substance of his complaints . The letter , which was dated DATE , had among its enclosures copies of certain newspapers issued on CARDINAL DATE and DATE . Its envelope was postmarked DATE .","The provisions of LAW ( \u201c the LAW \u201d ) concerning administrative arrest as punishment for an administrative offence and the lack of an ordinary appeal procedure are summarised in the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE .","Article CARDINAL of the ORG provided , inter alia , that an arrest on grounds of an administrative offence could be challenged by the arrestee before the supervising authority , a prosecutor or the courts .","By virtue of LAW enacted on DATE , a second level of jurisdiction was introduced into the administrative offence procedure ( LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107264","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF G\u00dcLTEK\u0130N AND OTHERS v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque","text":["The applicants were born in DATE , CARDINAL , DATE and DATE respectively and live in LOC .","In DATE ORG of Highways seized a plot of land belonging to the applicants without any formal expropriation , for the construction of a highway . The applicants brought an action before ORG to obtain compensation for the de facto expropriation of their property . They requested MONEY ( TRY ) as compensation from the court and reserved their right to increase this claim in due course .","On DATE ORG awarded the applicants TRY CARDINAL as compensation for the de facto expropriation of their land , as requested , plus interest . The applicants initiated execution proceedings before ORG to obtain that amount ( file no . CARDINAL ) .","On DATE ORG upheld the judgment of the first - instance court .","The applicants subsequently brought an additional action ( \u201c ek dava \u201d ) before ORG to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings , which had valued the land at a rate higher than that initially requested by them .","On DATE ORG awarded the applicants TRY CARDINAL , plus interest . The applicants initiated another set of execution proceedings before ORG to obtain the amount awarded ( file no . CARDINAL\/CARDINAL ) .","On DATE ORG upheld the judgment of ORG .","On DATE and CARDINAL DATE the administration paid TRY CARDINAL and CARDINAL respectively to the files before ORG .","According to the information provided by the applicants , there has been no outstanding debt in the execution files ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92572","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF KALACHEVA v. RUSSIA","importance":3,"conclusion":"Violation of Art. 8;Non-pecuniary damage - award","judges":"Anatoly Kovler;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant gave birth to a daughter out of wedlock .","On DATE she lodged a claim with ORG of FAC against Mr A. , with whom she allegedly had been in a relationship since DATE , in order to establish paternity and obtain child maintenance . In the course of the proceedings the applicant was represented by a counsel .","On DATE the court ordered a DNA test to be carried out . The blood samples were collected in GPE and sent to a specialised institute in GPE for a forensic genetic examination . According to the expert conclusion submitted on DATE , the probability that PERSON was the father of the applicant \u2019s daughter was PERCENT .","On DATE the court heard the defendant \u2019s representative , who contested the admissibility of the DNA test on account of procedural shortcomings , and the applicant , who insisted on its accuracy ; and rejected the applicant \u2019s claim in full . It found that the applicant had failed to support her allegations . With respect to the expert forensic report the court found as follows :","\u201c ... Blood sampling for the expert report was entrusted to the ORG of forensic - medical examinations in LOC ...","According to the ORG on organisation and production of expert examinations in Bureaus of forensic medical examinations , blood samples must be packed individually ... An envelope must be supplied , with identifying information ( on the basis of an identity document ) and signatures of a medical worker who took the blood samples and CARDINAL medical workers who were present during this procedure ...","On the envelopes with the blood samples of PERSON , PERSON and GPE [ the applicant \u2019s daughter ] there are no data based on the identity documents of the above persons . Moreover , there are CARDINAL signatures on the envelopes , CARDINAL of which belongs to a person who took the blood samples ...","Taking into account that the blood samples were collected with serious violations of the Instruction ... , the court is critical of the expert conclusion , since it can not exclude the possibility that the blood samples received by the experts were not those collected from the parties . \u201d","The court found the other evidence submitted by the applicant , namely a photo showing her with the defendant and a badge in her name , issued by the hostel ( where they allegedly met ) , insufficient to conclude that the defendant was her child \u2019s father .","The applicant and her lawyer lodged an appeal against this judgment , claiming that the case should be sent to a fresh examination due to the court \u2019s failure to respect the civil procedural law . On DATE the ORG upheld the judgment of DATE . It mentioned that , under civil procedural law , an expert conclusion was not binding on the court , and that in the present case the DNA test , carried out in breach of the relevant procedure , was not corroborated by other evidence .","On DATE ORG of GPE rejected an application for supervisory review lodged by the applicant \u2019s lawyer .","Under LAW ( \u201c ORG \u201d , in force as of DATE ) , rights and interests of minors are protected in court proceedings by their legal representatives \u2013 parents , adoptive parents or tutors . Under LAW of GPE of DATE ( PERSON \u043a\u043e\u0434\u0435\u043a\u0441 PERSON , in force as of DATE ) , if a child is born to parents who are not married to each other and there is no joint declaration or declaration by the child \u2019s father , the paternity of the child shall be established in court proceedings on the application of either parent , or tutor , or a child in question upon reaching a full age . In such proceedings the court shall have regard to any evidence that establishes the child \u2019s paternity with certainty .","Article CARDINAL of the ORG provides that a court shall evaluate evidence in confidence , based upon a comprehensive , detailed and impartial review of all the evidence of the case . No evidence has a predetermined value .","An expert conclusion is not binding upon the court , and shall be evaluated by the court according to the rules stated in LAW . If the court disagrees with the expert conclusion , it shall explain its reasons in its decision ( LAW ORG ) . In case of doubt as to the accuracy or reasonableness of the expert conclusion , a court may order a second expert opinion to be prepared by other experts ( LAW ) .","Resolution no . CARDINAL of ORG of GPE of DATE on application by the courts of LAW of GPE to cases concerning paternity and maintenance provides that in order to establish paternity the court may , if necessary , order a forensic examination . Under LAW of the ORG , the experts\u2019 conclusion regarding a child \u2019s descent , including a DNA test , is evidence that must be weighed together with other evidence ( LAW ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108465","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF ANANYEV AND OTHERS v. RUSSIA","importance":2,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-1 - Continuing situation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures)","judges":"Anatoly Kovler;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["All CARDINAL applicants were remanded in custody pending trial and were held in various NORP remand prisons . Their individual circumstances are detailed below .","On DATE the ORG of ORG quashed the appellate judgment in Mr PERSON \u2019s criminal case and remitted the matter for a new hearing . On DATE he was taken from the correctional colony to remand prison IZ-CARDINAL\/CARDINAL of GPE , where he stayed until DATE .","Mr PERSON was held in cell CARDINAL until DATE and then in cell CARDINAL . Cell CARDINAL measured QUANTITY and cell QUANTITY . They were equipped with CARDINAL and CARDINAL sleeping places , respectively .","Cell CARDINAL accommodated CARDINAL detainees for DATE in DATE and DATE ; in the remaining period of Mr PERSON \u2019s detention the cell population varied from CARDINAL to QUANTITY persons . Cell CARDINAL housed Mr PERSON and CARDINAL other inmate .","The Government submitted certificates issued on DATE by the governor of the remand prison that listed floor surface areas and cell population , and CARDINAL pages from the prison population register of prison IZ-CARDINAL\/CARDINAL relating to various dates DATE , as well as photographs of cells CARDINAL and CARDINAL .","Mr PERSON produced written statements from his former co - detainees , Mr S. and Mr B. , both dated DATE , from which it appears that DATE cell CARDINAL had accommodated CARDINAL persons .","On DATE Mr PERSON sent complaints about unbearable conditions of his detention to ORG , the GPE town prosecutor and to the Director of the GPE penitentiary facilities . On CARDINAL DATE the GPE town prosecutor informed Mr PERSON that he had checked his complaints and that the acting governor of prison IZ-CARDINAL\/CARDINAL had been instructed to remedy the violations of the Suspects and Defendants Detention Act .","Mr and PERSON were taken into custody on DATE . Ms Bashirova was released on bail on CARDINAL DATE and PERSON was transferred to remand prison IZ-CARDINAL\/CARDINAL of GPE . On DATE they were both found guilty of drug - related offences and sentenced to DATE and CARDINAL years\u2019 imprisonment , respectively . PERSON was re - detained on DATE . On CARDINAL DATE ORG upheld the conviction at last instance .","NORP In prison IZ-CARDINAL\/CARDINAL , PERSON stayed in cell DATE ( from CARDINAL May to CARDINAL DATE and from DATE to DATE ) , cell CARDINAL ( from DATE to CARDINAL DATE and from CARDINAL DATE to DATE ) , cell MONEY ( from DATE to CARDINAL DATE ) , cell CARDINAL ( from DATE to DATE ) , and cell CARDINAL ( from DATE to CARDINAL DATE ) . From DATE PERSON underwent treatment in a prison hospital .","In the same prison PERSON stayed in cell CARDINAL ( from CARDINAL to CARDINAL DATE ) , cell CARDINAL ( from DATE ) and cell CARDINAL ( from DATE to DATE ) .","Mr PERSON \u2019s cells presented the following characteristics :","cell CARDINAL : QUANTITY and CARDINAL sleeping places ;","cell CARDINAL : QUANTITY and CARDINAL sleeping places ;","cells CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places ;","cell CARDINAL : QUANTITY and CARDINAL sleeping places .","PERSON cells had the following measurements :","cell CARDINAL : QUANTITY and CARDINAL sleeping places ;","cell CARDINAL : QUANTITY and CARDINAL sleeping places ;","cell CARDINAL : QUANTITY and CARDINAL sleeping places .","The parties disagreed on the number of detainees . The Government submitted that the number of detainees \u201c had not exceeded the number of sleeping places \u201d . They relied on a certificate issued by the prison governor on DATE . The applicants gave the following cell population figures : cell CARDINAL \u2013 QUANTITY persons , cell CARDINAL \u2013 CARDINAL persons , cells CARDINAL , DATE and DATE \u2013 CARDINAL persons , cell CARDINAL persons , cell CARDINAL \u2013 CARDINAL persons on average but CARDINAL persons on DATE , cell DATE CARDINAL persons .","The applicants submitted extracts from DATE reports by the Ombudsman of GPE . The DATE Report criticised the conditions of detention in the FAC prisons :","\u201c According to the data of ORG in GPE , the situation in the regional remand prisons deteriorated in DATE and elementary rights of detainees were not respected . The number of suspects and defendants significantly increased in both remand prisons ; at DATE their number was twice the norm . Thus , prison no . [ IZ-CARDINAL\/]CARDINAL in the city of GPE has the maximum capacity of CARDINAL detainees ; during DATE it accommodated on average CARDINAL persons ( in DATE QUANTITY persons ) and at DATE QUANTITY persons . The situation in prison no . [ ORG in the town of GPE is similar ... For that reason , cells in the remand prisons have constantly been overcrowded ; whereas the sanitary norm is QUANTITY per person , the actual space was QUANTITY . Detainees suffered from a shortage of sleeping places and were forced to take turns to sleep . \u201d","The DATE Report showed that the situation had hardly improved :","\u201c Unfortunately , it must be stated that there have been no noticeable changes for the better in DATE . Thus , a warning sent on DATE by the ORG prosecutor \u2019s office to the director of ORG in GPE indicated that the conditions of detention in prisons no . CARDINAL ( FAC ) and no . CARDINAL ( GPE ) \u2018 did not meet the hygienic , sanitary or fire - safety requirements\u2019 ... The situation has further been aggravated by an extreme decrepitude of the buildings ( especially in the case of prison no . CARDINAL built in DATE ) and a significant exceeding of the design capacity . The DATE trend of overcrowding is a reflection of a worsening situation and the figures clearly show this :","The DATE Report acknowledged that the problem of overcrowding had remained \u201c grave \u201d and that prison IZ-CARDINAL\/CARDINAL actually accommodated CARDINAL inmates .","The DATE Report criticised the officially accepted limits :","\u201c The officially recognised maximum capacity of remand prisons which is considered acceptable raises questions . It is considered that the capacity of prison IZ-CARDINAL\/CARDINAL is CARDINAL persons . Yet the global living surface of all cells is QUANTITY . A simple division of this number by QUANTITY m ( the legal sanitary norm of cell space per detainee ) gives us the maximum prison capacity of CARDINAL persons . However , on DATE the actual number of detainees in prison no . CARDINAL was CARDINAL . \u201d","NORP The applicant PERSON also produced a copy of a letter which the ORG prosecutor \u2019s office had sent to his counsel on DATE in response to a complaint about the conditions of detention raised by another detainee . The letter stated as follows :","\u201c On DATE [ sic ] DATE a deputy district prosecutor and deputy heads of prison no . CARDINAL in charge of logistics , the detention regime and the medical unit carried out a comprehensive technical examination of cell CARDINAL . At the time of the examination , cell CARDINAL had CARDINAL sleeping places but housed QUANTITY persons . The above - mentioned examination of cell CARDINAL also established that similar violations had occurred in a majority of cells of the prison . In connection with the overcrowding , dilapidated state of the building and other violations of the Pre - trial LAW , the district prosecutor \u2019s office sent CARDINAL warnings to the director of ORG in GPE already in DATE ... \u201d","Personal dignity is protected by the ORG and may not be undermined for any reason ( LAW ) .","No one may be subject to torture , violence or any other cruel or degrading treatment or punishment ( LAW ) .","Detention on remand must be based on the principles of lawfulness , fairness , presumption of innocence , equality before the law , humanism , respect for human dignity and must be carried out in accordance with LAW , international legal principles and norms and international treaties , to which GPE is a party , and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant ( section CARDINAL ) .","Detention on remand may be effected in ( a ) remand prisons of the penitentiary system ( \u0441\u043b\u0435\u0434\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u0435 \u0438\u0437\u043e\u043b\u044f\u0442\u043e\u0440\u044b ) , ( b ) temporary detention wards of the police ( \u0438\u0437\u043e\u043b\u044f\u0442\u043e\u0440\u044b \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u043e\u0433\u043e \u0441\u043e\u0434\u0435\u0440\u0436\u0430\u043d\u0438\u044f ) , and ( c ) temporary detention wards of the border service ( section CARDINAL ) .","Detainees have , in particular , the right :","to ask the prison governor for an appointment and to ask the same of the prison supervisors during their visit to the prison ( section CARDINAL \u00a7 CARDINAL ) ;","to send suggestions , applications and complaints to authorities , including courts , concerning the lawfulness of their detention and violations of their lawful rights and interests ( section CARDINAL \u00a7 CARDINAL ) ;","to receive free food , DATE necessities and medical assistance , including during the time when they take part in investigative acts or court hearings ( section QUANTITY ) ;","to have TIME uninterrupted sleep at TIME time and a TIME period of DATE exercise ( section QUANTITY ) .","Detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . All inmates should have at their disposal in their cell QUANTITY of personal space ( section CARDINAL ) .","The Prosecutor General and subordinate prosecutors must supervise the application of legal norms in remand prisons . Prison authorities must comply with the instructions of the supervising prosecutor in so far as they concern the detention rules as established in this LAW ( section CARDINAL ) .","The ORG may receive complaints concerning the actions by federal and municipal ORG bodies or employees , provided that the complainant has previously lodged a judicial or administrative appeal in this connection ( section CARDINAL \u00a7 CARDINAL ) .","Having examined the complaint , the ORG may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a ORG official or petition the competent authorities for institution of disciplinary , administrative or criminal proceedings against the ORG official who has committed such a breach ( section CARDINAL \u00a7 CARDINAL ) .","The ORG prepares a summary of individual complaints and he or she may submit to ORG and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers ( section CARDINAL ) .","LAW sets out the procedure for a judicial examination of complaints about decisions , acts or omissions of the ORG and municipal authorities and officials . Pursuant to Ruling no . CARDINAL of CARDINAL DATE by ORG of GPE , complaints by suspects , defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of LAW ( point CARDINAL ) .","A citizen may lodge a complaint about an act or decision by any ORG authority which he believes has breached his rights or freedoms , either with a court of general jurisdiction or by sending it to the directly higher official or authority ( LAW . The complaint may concern any decision , act or omission which has violated rights or freedoms , has impeded the exercise of rights or freedoms , or has imposed a duty or liability on the citizen ( LAW ) .","The complaint must be lodged within DATE when the citizen learnt of the breach of his rights . The time - period may be extended for valid reasons ( Article CARDINAL ) . The complaint must be examined within DATE ; if necessary , in the absence of the respondent authority or official ( Article CARDINAL ) .","The burden of proof as to the lawfulness of the contested decision , act or omission lies with the authority or official concerned . If necessary , the court may obtain evidence of its own initiative ( point CARDINAL of Ruling no . CARDINAL ) .","If the court finds the complaint justified , it issues a decision requiring the authority or official to fully remedy the breach of the citizen \u2019s rights ( LAW ) . The court determines the time - limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full ( point CARDINAL of Ruling no . CARDINAL ) .","The decision is dispatched to the head of the authority concerned , to the official concerned or to their superiors , within DATE of its entry into force . The court and the complainant must be notified of the enforcement of the decision DATE after its receipt ( Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL ) .","Civil rights may be protected in many forms , including in particular , recognition of the right , re - establishment of the status quo ante and the discontinuance of violations of the right or the prevention of such violations , and compensation in respect of non - pecuniary damage ( Article CARDINAL ) .","An individual \u2019s life and health , personal dignity and integrity , honour and goodwill are considered to be the person \u2019s \u201c non - property rights \u201d or \u201c intangible assets \u201d , which are protected under LAW and other laws in the cases and to the extent that the forms of the protection of civil rights listed in LAW correspond to the essence of the violated intangible right and to the consequences of such violation ( LAW ) .","If certain actions impairing an individual \u2019s personal non - property rights or encroaching on other intangible assets have caused him or her non - pecuniary damage ( physical or mental suffering ) , the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage . The amount of compensation is determined by reference to the gravity of the perpetrator \u2019s fault and other significant circumstances . The court also takes into account the extent of physical or mental suffering in relation to the victim \u2019s individual characteristics ( Article CARDINAL ) .","Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own ( Article CARDINAL \u00a7 \u00a7 CARDINAL , CARDINAL ) .","State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions ( Article CARDINAL ) . Irrespective of any fault by ORG officials , the ORG or regional treasury are liable for damage sustained by a citizen on account of ( i ) unlawful criminal conviction or prosecution ; ( ii ) unlawful application of a preventive measure , and ( iii ) unlawful administrative punishment ( Article ORG ) .","Compensation for non - pecuniary damage is effected in accordance with LAW and is unrelated to any award in respect of pecuniary damage ( LAW . Irrespective of the tortfeasor \u2019s fault , non - pecuniary damage shall be compensated for if the damage was caused ( i ) by a hazardous device ; ( ii ) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment , and ( iii ) through dissemination of information which was damaging to honour , dignity or reputation ( LAW ) .","\u201c Preventive measures \u201d ( \u043c\u0435\u0440\u044b \u043f\u0440\u0435\u0441\u0435\u0447\u0435\u043d\u0438\u044f ) include an undertaking not to leave a town or region , personal surety , bail , house arrest and detention on remand ( Article CARDINAL ) .","Placement in custody may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) . A court may order detention on remand if there are sufficient reasons to believe that the suspect might abscond , re - offend or threaten a witness , destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case ( LAW ) . The circumstances to be taken into account when imposing a preventive measure include , apart from those specified in LAW , the seriousness of the charges and the suspect \u2019s personality , age , health , family status , occupation and other circumstances ( LAW ) .","After arrest , the suspect is placed in custody \u201c pending investigation \u201d . The maximum permitted period of detention \u201c pending investigation \u201d is DATE but it can be extended for DATE in \u201c exceptional circumstances \u201d ( Article CARDINAL \u00a7 \u00a7 CARDINAL ) .","On DATE ORG of GPE adopted Ruling no . CARDINAL governing the application of preventive measures , including placement of custody , bail and house arrest . It provided in particular that detention on remand may be ordered only if it is impossible to impose a more lenient preventive measure ( point CARDINAL ) . When examining an application for a detention order , the courts were required to assess the existence of a reasonable suspicion that the person concerned had been involved in the commission of the offence ( point CARDINAL ) . When issuing further extension orders , courts were to specify concrete facts justifying the continued detention and the supporting evidence ( point CARDINAL ) . In addition , the courts had to explain why it was not possible to apply a more lenient measure ( point CARDINAL ) .","The information submitted by the ORG and the statistical data available on the website of ORG of ORG ) show the number of cases in which first - instance courts granted ORG applications for an initial detention order or for its extension , and the total number of individuals convicted or acquitted at first instance ( excluding the cases that were discontinued and did not end in either a conviction or an acquittal ) during DATE :","By ORG no . CARDINAL of DATE , ORG approved a federal expenditure programme under the title \u201c Development of the Criminal Justice and Penitentiary System in DATE \u201d . As amended by subsequent ORG , the programme description reads as follows :","\u201c The contemporary criminal justice and penitentiary system is a complex of institutions and organs that enforces various types of penalties . It comprises CARDINAL institutions , including CARDINAL correctional facilities , CARDINAL prisons and CARDINAL remand prisons . At present CARDINAL individuals are being held in those institutions .","The number of suspects and defendants who were remanded in custody and are held in remand prisons ( hereinafter DATE \u201c untried prisoners \u201d ) and the number of convicted defendants in correctional facilities ( hereinafter DATE \u201c convicted prisoners \u201d ) do not depend on the functioning of ORG and are chiefly determined by the level of crime in the country and the judicial practice .","...","Pursuant to the requirements of GPE laws , untried and convicted prisoners must be allocated to cells , taking into account their character and psychological compatibility , as well as their gender and age ... The sanitary norm is QUANTITY of floor space per untried prisoner .","As a consequence of construction and renovation work carried out in remand prisons in the framework of the federal expenditure programme \u2018 Reform of the penitentiary system in DATE , the number of places in remand prisons in which the conditions of detention are compatible with the requirements of NORP laws will reach PERCENT by DATE . The federal expenditure programme \u2018 Development of the Criminal Justice and Penitentiary System in DATE ( hereinafter DATE \u201c the ORG \u201d ) will be a logical continuation of this work .","At present only the facilities in CARDINAL NORP regions are actually capable of providing accommodation that is compatible with the sanitary norm of floor space per inmate . It follows that the remand prison population exceeds the established prison capacity , and in certain regions it does so to a significant extent . In CARDINAL NORP regions the sanitary norm of cell surface per detainee is QUANTITY , in CARDINAL regions ( LOC , ORG ( GPE ) , PERSON and GPE , GPE , PERSON , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and ORG ) it is QUANTITY , which is a violation of the rights of untried prisoners .","CARDINAL NORP regions ( GPE , PERSON and ORG ) have no remand prisons , which leads to various excesses in enforcing custodial measures and carrying out investigative acts .","A majority of remand prisons are located in old buildings . In DATE , constructions have collapsed in remand prisons of the GPE , GPE , GPE , GPE , GPE and other regions owing to their unsatisfactory condition . It is now being debated whether CARDINAL remand prisons ( PERSON , PERSON and Chuvash Republics , GPE , ORG , GPE , GPE , GPE , GPE , GPE , GPE and ORG ) should be put out of operation ...","Since GPE acceded to ORG in DATE and ratified ORG in DATE , it has become an urgent objective to bring the penitentiary system into compliance with ORG legal standards , which have significantly evolved in DATE with respect to prison management and treatment of detainees ... Taking into account the fact that the minimum sanitary norm per detainee is set by the [ Committee for the Prevention of Torture , \u201c ORG \u201d ] at QUANTITY , ORG refers in its judgments to this approximate standard for prisoners\u2019 accommodation . ORG commentary on ORG gives reasons to believe that the [ ORG ] will set the sanitary norm per inmate in the range of QUANTITY .","At present the sanitary norm per inmate meets the international standard only in CARDINAL remand prisons ( ORG and ORG , GPE ) ; however , CARDINAL of them ( ORG and PERSON ) are under threat of collapse and will have to be closed ...","The ORG \u2019s objective is to bring the conditions of detention of untried and convicted prisoners in line with NORP laws with a view to attaining international standards for the detention of defendants in remand prisons .","The ORG \u2019s goals are :","reconstruction and construction of remand prisons in which the conditions of detention of untried prisoners are compatible with NORP laws ...","construction of DATE remand prisons , in which the conditions of detention are compatible with international standards .","The most important targets of the ORG are [ LAW ] :","In DATE , the construction of CARDINAL new remand prisons will be completed ; they will offer conditions of detention compatible with NORP standards . In addition , the construction of CARDINAL remand prisons that has begun in the framework of the DATE federal expenditure programme , is about to be completed . Starting from DATE , the conditions of detention in CARDINAL old - style remand prisons will be brought into compliance with NORP laws . New - style remand prisons are being built in CARDINAL NORP regions ( PERSON , GPE , GPE , GPE and Chuvash Republics , GPE , PERSON , PERSON , GPE , PERSON , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , ORG GPE , GPE ) . The conditions of detention in those facilities will meet the international standards ( sanitary norm of QUANTITY per detainee ) .","By DATE the total number of remand prisons \u2013 taking into account the fact that CARDINAL prisons will probably be closed DATE will grow to CARDINAL . The conditions of detention will be compatible with NORP laws , and in CARDINAL prisons also with international standards ...","Resources will be allocated to the ORG at the expense of the federal budget . The total amount of the financing represents MONEY [ QUANTITY ] ... \u201d","The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :","\u201c CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...","In all places where prisoners are required to live or work ,","( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;","( b ) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight .","The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .","Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .","All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .","Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...","Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .","( CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .","( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .","( CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .","CARDINAL ... ( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... \u201d","The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :","\u201c CARDINAL . Overcrowding is an issue of direct relevance to the ORG \u2019s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .","A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...","Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ...","Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...","The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet \/ washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .","It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... \u201d","\u201c CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG \u2019s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .","The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... \u201d","\u201c CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...","In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .","The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and\/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ; moreover , the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ... \u201d","On DATE ORG Recommendation No . R ( CARDINAL ) CARDINAL concerning prison overcrowding and prison population inflation , which provides in particular as follows :","\u201c Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole , both in terms of human rights and of the efficient management of penal institutions ;","Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation , priorities in crime control , the range of penalties available on the law books , the severity of the sentences imposed , the frequency of use of community sanctions and measures , the use of pre - trial detention , the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment ...","Recommends that governments of member states :","- take all appropriate measures , when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation , to apply the principles set out in the appendix to this recommendation ...","I. Basic principles","Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only , where the seriousness of the offence would make any other sanction or measure clearly inadequate .","The extension of the prison estate should rather be an exceptional measure , as it is generally unlikely to offer a lasting solution to the problem of overcrowding . Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity ...","II . Coping with a shortage of prison places","In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set .","Where conditions of overcrowding occur , special emphasis should be placed on the precepts of human dignity , the commitment of prison administrations to apply humane and positive treatment , the full recognition of staff roles and effective modem management approaches . In conformity with ORG , particular attention should be paid to the amount of space available to prisoners , to hygiene and sanitation , to the provision of sufficient and suitably prepared and presented food , to prisoners\u2019 health care and to the opportunity for outdoor exercise .","In order to counteract some of the negative consequences of prison overcrowding , contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made ...","III . Measures relating to the pre - trial stage","Avoiding criminal proceedings - Reducing recourse to pre - trial detention","Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R ( CARDINAL ) CARDINAL concerning the simplification of criminal justice , this would involve in particular that member states , while taking into account their own constitutional principles or legal tradition , resort to the principle of discretionary prosecution ( or measures having the same purpose ) and make use of simplified procedures and out - of court settlements as alternatives to prosecution in suitable cases , in order to avoid full criminal proceedings .","The application of pre - trial detention and its length should be reduced to the minimum compatible with the interests of justice . To this effect , member states should ensure that their law and practice are in conformity with the relevant provisions of LAW and the case - law of its control organs , and be guided by the principles set out in Recommendation No R ( CARDINAL ) CARDINAL concerning custody pending trial , in particular as regards the grounds on which pre trial detention can be ordered .","The widest possible use should be made of alternatives to pre - trial detention , such as the requirement of the suspected offender to reside at a specified address , a restriction on leaving or entering a specified place without authorisation , the provision of bail or supervision and assistance by an agency specified by the judicial authority . In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices .","In order to assist the efficient and humane use of pre - trial detention , adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed , as necessary . \u201d","On DATE ORG Recommendation Rec(CARDINAL)CARDINAL to member GPE on ORG , which replaced Recommendation No . R ( CARDINAL ) CARDINAL on ORG accounting for the developments which had occurred in penal policy , sentencing practice and the overall management of prisons in LOC . The amended NORP Prison Rules lay down the following guidelines :","\u201c CARDINAL . All persons deprived of their liberty shall be treated with respect for their human rights .","Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .","Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .","Prison conditions that infringe ORG human rights are not justified by lack of resources .","...","ORG apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction . \u201d","\u201c CARDINAL . The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .","In all buildings where prisoners are required to live , work or congregate :","a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;","b. artificial light shall satisfy recognised technical standards ; and","c. there shall be an alarm system that enables prisoners to contact the staff without delay .","National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons .","Prisoners shall normally be accommodated during TIME in individual cells except where it is preferable for them to share sleeping accommodation .","Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .","Adequate facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .","Prisoners shall be provided with a nutritious diet that takes into account their age , health , physical condition , religion , culture and the nature of their work .","There shall be CARDINAL meals a day with reasonable intervals between them .","Clean drinking water shall be available to prisoners at all times .","Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .","When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise . \u201d","On DATE ORG Interim PERSON \/ ResDH(CARDINAL)CARDINAL concerning the ORG \u2019s judgment in the PERSON v. GPE case of DATE , final on DATE . It read in particular as follows :","\u201c Noting that the general measures required by the present judgment are closely connected to the ongoing reform of GPE criminal policy and the penitentiary system and welcoming progress achieved so far in this respect ;","Noting in particular with satisfaction the significant decrease of the overcrowding in pre - trial detention facilities ( SIZOs ) and the ensuing improvement of sanitary conditions , as demonstrated by the recent statistics submitted to ORG by the NORP authorities [ ] ;","Considering however that further measures are required in this field to remedy the structural problems highlighted by the present judgment ;","Stressing in particular the importance of prompt action by the authorities to remedy the overcrowding in those SIZOs where this problem still remains ( CARDINAL out of the CARDINAL NORP regions ) and to align the sanitary conditions of detention on the requirements of the LAW ,","CALLS UPON the NORP authorities to continue and enhance the ongoing reforms with a view to aligning the conditions of all pre - trial detention on the requirements of the LAW , particularly as set out in the PERSON judgment , so as effectively to prevent new , similar violations ... \u201d","On DATE ORG adopted Interim Resolution CM \/ ResDH(CARDINAL)CARDINAL on the execution of the CARDINAL judgments against GPE mainly concerning conditions of detention in remand prisons . It provided in particular as follows :","\u201c Having regard to the judgments in which the ORG has found violations of LAW in respect of the conditions under which the applicants were detained in remand prisons ( SIZOs ) which amounted to degrading treatment due , in particular , to the severe lack of personal space or to the combination of the space factor with other deficiencies of the physical detention conditions such as the impossibility of using the toilet in private , lack of ventilation , lack of access to natural light and fresh air , inadequate heating arrangements , and non - compliance with basic sanitary requirements ;","Recalling further that in a number of judgments the ORG found violations of LAW due to the unlawful detention of the applicants , its excessive length in the absence of relevant and sufficient grounds for prolonged detention and the lack of effective judicial review of the lawfulness of detention ;","Recalling finally that the ORG also found violations of LAW due to the lack of an effective domestic remedy in respect of conditions of detention on remand ;","Recalling that the existence of structural problems and the pressing need for comprehensive general measures were stressed by the ORG and acknowledged by the NORP authorities since the adoption by ORG judgment in the case of PERSON against GPE in DATE ...","As regards material conditions of detention :","...","Recalling that ... the creation of new places of detention can not in itself provide a lasting solution to the problem of prison overcrowding , and that this measure should be closely supported by others aimed at reducing the overall number of remand prisoners ;","Noting with satisfaction in this respect the NORP authorities\u2019 position that there should be an integrated approach to finding solutions to the problem of overcrowding in remand prisons , including in particular changes to the legal framework , practices and attitudes ;","As regards the number of remand prisoners :","Recalling the constant position of ORG that , in view both of presumption of innocence and the presumption in favour of liberty , remand in custody shall be the exception rather than the norm and only a measure of last resort , and that to avoid inappropriate use of remand in custody the widest possible range of alternative , less restrictive measures shall be made available ;","Noting the repeated statements by the President of GPE and high - ranked officials , including ORG and the Minister of Justice , that CARDINAL of persons detained on remand PERCENT of those currently detained \u2013 should not have been deprived of their liberty , being suspected or accused of offences of low or medium gravity ;","Welcoming the unambiguous commitment , renewed at the highest political level , to change this unacceptable situation and to adopt urgent legislative and other measures to that effect ...","Noting that the statistical data provided demonstrates a slight but constant decrease in the overall number of remand prisoners ;","Further noting that the statistics nonetheless demonstrate wider yet still limited recourse to alternative preventive measures by the NORP courts , prosecutors and investigators ...","As regards remedies in respect of conditions of detention on remand :","Recalling the ORG \u2019s consistent position that available remedies are considered effective if they could have prevented violations from occurring or continuing , or could have afforded the applicant appropriate redress ;","Noting that the statistics and several cases presented to the ORG demonstrate a developing practice before domestic courts on compensation for non - pecuniary damage sustained in relation to poor conditions of detention in remand prisons ;","Noting further that in view of the problems at issue , any compensatory remedy should as far as possible be supplemented by other remedies capable of preventing violations of LAW ;","Noting in this respect information on the avenues provided by NORP legislation to address the violations of LAW at issue ;","Noting in particular the provisions of LAW of LAW and the Ruling of the Supreme Court of Russia of DATE providing the possibility to challenge before courts acts or inaction of remand prison administrations concerning improper detention conditions ;","Considering however that the effectiveness of this remedy in particular with regard to overcrowding , has not yet been demonstrated ;","ENCOURAGES the NORP authorities to pursue the ongoing reforms with a view to aligning the conditions of detention in remand prisons with the requirements of the LAW , taking also into account the relevant standards and recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ,","EXPRESSES CONCERN that notwithstanding the measures adopted , a number of remand prisons in GPE still do not afford the personal space guaranteed by domestic legislation , and remain overpopulated ;","STRONGLY ENCOURAGES the NORP authorities to give priority to reforms aiming at reducing the number of persons detained on remand and to other measures combating the overcrowding of remand facilities by","\u2022 ensuring that judges , prosecutors and investigators consider and use detention on remand as a solution of last resort and make wider use of alternative preventive measures ;","\u2022 ensuring the availability at the national level of effective preventive and compensatory remedies allowing adequate and sufficient redress for any violation of LAW resulting from poor conditions of detention on remand ... \u201d","On DATE the ORG adopted pilot judgments in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL ) , in which it found under LAW that , for DATE , namely from DATE until DATE , the overcrowding in NORP remand centres had revealed a structural problem consisting of a \u201c practice that [ was ] incompatible with the Convention \u201d ( see \u00a7 CARDINAL and \u00a7 \u00a7 CARDINAL , respectively ) .","On DATE the NORP ORG enacted a law amending LAW which entered into force on DATE . It introduced a number of new rules governing temporary placement of detainees in cells below the statutory norm of QUANTITY per inmate .","A new provision lists the emergency situations in which the prison governor may place a detainee for a specified period not longer than DATE in a cell in which the area per inmate will be QUANTITY but not QUANTITY . The situations include the introduction of martial law , natural disasters , epidemics , and a threat to prison security ( LAW CARDINAL ) . It also defines the categories of prisoners who may be held in such conditions for a period not exceeding DATE : recidivists , sexual offenders , escapees , temporary transfers from other prisons , etc . ( \u00a7 CARDINAL ) . An appeal against the governor \u2019s decision lies with a penitentiary judge ( \u00a7 CARDINAL ) . Detainees who have been placed in a cell with restricted personal space shall be assured TIME of DATE walks and a wider range of out - of - cell cultural , educational and sports activities ( \u00a7 MONEY ) .","On DATE ORG allowed a cassation appeal by a prisoner against the dismissal of his claim for compensation in respect of an infringement of his personal rights on account of severe prison overcrowding ( CARDINAL inmates in a cell designed for QUANTITY persons ) . ORG reiterated that the right to be detained in conditions respecting one \u2019s dignity belonged to the catalogue of personal rights and that the ORG treasury should be liable for an infringement of such rights . It determined that the prison authorities had failed to show the existence of a \u201c particularly justified case \u201d for placement of detainees in an already overcrowded facility and in that way had acted unlawfully .","On DATE the ORG issued admissibility decisions in the cases of PERSON v. GPE ( no . CARDINAL\/CARDINAL ) and PERSON v. GPE ( no . MONEY ) in the framework of the pilot - judgment procedure . It re - examined the applicants\u2019 situation in the light of the above - mentioned developments at domestic level and found that ORG judgment of CARDINAL DATE constituted a material element which was indispensable for the consolidation of the previous practice of civil courts in cases concerning claims for compensation on account of prison overcrowding ( PERSON , \u00a7 CARDINAL ) . Accordingly , the applicants were required to seek redress at domestic level and bring a civil action for compensation before NORP courts ( ibid . , \u00a7 CARDINAL ) and their applications to the ORG were inadmissible for non - exhaustion of domestic remedies ( \u00a7 CARDINAL ) . The ORG also noted that the amended LAW provided detainees with a new legal means for contesting the governor \u2019s decision to reduce the available cell space . It could not therefore be excluded that applicants would be required to make use of the new complaints system before applying to ORG ( \u00a7 DATE ) ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104668","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF SHOKKAROV AND OTHERS v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Pecuniary and non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen","text":["The applicants are :","( CARDINAL ) Mr PERSON ( also spelled PERSON ) , who was born in DATE ,","( CARDINAL ) PERSON ( also spelled Shokarova ) , who was born in DATE ,","( CARDINAL ) PERSON ( also spelled Shokarova ) , who was born in DATE , and","( CARDINAL ) PERSON .","The first and second applicants are the parents of PERSON ( also known as ORG PERSON ( also spelled PERSON and PERSON ) , who was born in DATE , and Mr Visita ( also spelled Visit ) PERSON , who was born in DATE . PERSON was married to the third applicant ; PERSON was married to the fourth applicant . At the material time the Shokkarovs were residing in the PERSON camp for internally displaced persons in GPE , ORG . At some point later they moved back to PERSON , GPE , where they are currently residing .","At TIME on DATE a group of policemen from the ORG district department of the interior ( ROVD ) in ORG arrived at the PERSON camp in CARDINAL vehicles . They arrested PERSON and took him away without any explanation .","DATE PERSON relatives came to the ORG ; the policemen told them that PERSON was detained in the police station .","On DATE PERSON was charged with the aggravated murder of CARDINAL officials from the LOC administration in GPE .","On DATE the ORG authorised PERSON detention on remand until DATE , stating that there was a risk of his absconding from the authorities .","At some point the first applicant retained a lawyer to represent his son \u2019s interests . On DATE and DATE , as well as on DATE , the lawyer requested that he be allowed to contact PERSON , but to no avail .","On DATE PERSON and his co - accused Mr V.B. were taken for the reconstruction of events to the site of the murder in the FAC district . They were in a car driven by Mr B. , an officer of ORG ( ORG ) . Near ORG ( also spelled ORG ) in the GPE district the car fell into a pit and exploded . PERSON and Mr PERSON died , whereas officer PERSON survived .","On DATE PERSON lawyer again requested the investigators to allow him to visit PERSON and was informed that his client had died .","On DATE the FAC district prosecutor \u2019s office ( the ORG prosecutor \u2019s office ) ordered a post - mortem examination of PERSON corpse . The applicants were not informed about this decision .","DATE and DATE an expert of the PERSON forensic bureau carried out the autopsy . According to the report , PERSON had died from blunt complex trauma to the head and chest , which had been probably inflicted on him in the car crash . The expert also stated that the body had burned and charred after the death .","On DATE PERSON lawyer informed the applicants about his client \u2019s death . On DATE in the PERSON town morgue the applicants collected a burnt and unidentifiable corpse without internal organs ; they were told that it was PERSON body .","On DATE the PERSON forensic bureau issued a death certificate stating that PERSON had died on DATE in ORG as a result of \u201c blunt complex trauma to the head and chest with subarachnoid haematoma , cerebral injury , cardiac rupture , incomplete separation of the lung , burning and charring of the corpse \u201d .","On DATE the GPE district prosecutor \u2019s office in GPE requested that the applicants collect PERSON body , which had been brought to the PERSON morgue by Mr I. , an investigator from the PERSON prosecutor \u2019s office , on DATE . On an unspecified date the applicants visited the PERSON morgue , examined the corpse and concluded that it was not that of PERSON .","On DATE the military prosecutor \u2019s office of military unit no . CARDINAL ( \u201c the military prosecutor \u2019s office \u201d ) instituted criminal proceedings against the ORG officer PERSON , who had driven the exploded car , under LAW \u00a7 CARDINAL of LAW ( breach of rules on using a special vehicle causing CARDINAL or more deaths ) . The case was assigned no . DATE .","On DATE the military prosecutor \u2019s office found that officer PERSON had lost control of the vehicle because PERSON had hit him and discontinued the proceedings against the officer for lack of corpus delicti .","On DATE the applicants appealed against the decision of CARDINAL DATE to ORG , ORG in GPE and ORG . They stated that PERSON self - incriminating statements and the confession to the murders had been made as a result of torture being applied to him and that the circumstances of his death in the car crash had not been effectively investigated . The applicants requested the courts to overrule the decision to terminate the investigation into the death of PERSON , to order the investigative authorities to carry out an effective investigation of his ill - treatment and death and to provide them and their representatives with access to the criminal case file . From the documents submitted to the ORG it follows that all of the complaints were lodged by the first applicant , who provided the courts with his address at the PERSON camp in GPE .","On DATE the ORG representatives requested ORG , ORG in GPE and ORG to inform them of the outcome of the examination of the complaints they had lodged in DATE .","On DATE the ORG informed the ORG representatives of the following :","\u201c ... ORG is informing you that ORG complaint against the law - enforcement agencies was examined and rejected on DATE .","A copy of this decision was forwarded to the applicant \u2019s address on DATE under outgoing no . CARDINAL . \u201d","According to the applicants , they neither participated in the examination of their complaint on DATE nor received the copy of the court \u2019s decision , since on an unspecified date in the DATE they had had to leave the PERSON camp owing to the dismantling of the camp by the local authorities . Therefore , in DATE they had not resided at the address provided by them to ORG . The applicants did not submit to the ORG any document confirming the dismantling of the camp in DATE .","On DATE the ORG informed the applicant that","\u201c ... on DATE ORG left V.A. PERSON \u2019s complaint unexamined as the criminal case concerning [ the death of ] PERSON had been investigated by a prosecutor \u2019s office in GPE . It was recommended that the applicant apply to the court where the relevant prosecutor \u2019s office was situated . \u201d","The applicants did not appeal against the decisions of the Nadterechniy and ORG .","According to the applicants , no reply was received from ORG to their request of DATE . The outcome of these proceedings remained unknown as the applicants did not lodge any further requests with the court .","On DATE the Special Envoy of the NORP President in GPE for Rights and Freedoms ( \u201c the Envoy \u201d ) , on behalf of the applicants , requested the ORG prosecutor \u2019s office to inform him of the whereabouts of PERSON and PERSON and the grounds for their arrest . The letter stated that the CARDINAL brothers had been detained by officers of the Sunzhenskiy ROVD on DATE , that PERSON had been arrested in the PERSON camp and that Visita had been arrested later on the same date on the premises of the ROVD .","On DATE the ORG prosecutor \u2019s office replied to the Envoy as follows :","\u201c ... on DATE officers of the ORG , acting on instructions from the LOC prosecutor \u2019s office in GPE , arrested PERSON ( a.k.a . PERSON ) on suspicion of murdering PERSON . ... and took him to the PERSON . PERSON was taken to the ROVD together with PERSON . On DATE the CARDINAL men were handed over to the head of the investigative unit of the LOC district prosecutor \u2019s office PERSON and officers of the Nadterechniy ROVD who accompanied him . \u201d","DATE the authorities conducted a forensic examination of PERSON corpse and issued his death certificate ( see paragraphs CARDINAL and CARDINAL above ) .","On DATE the first applicant requested the ORG district prosecutor \u2019s office ( \u201c the ORG prosecutor \u2019s office \u201d ) and the GPE prosecutor \u2019s office to conduct an investigation into PERSON arrest and death .","On DATE the GPE prosecutor \u2019s office informed the first applicant of the following :","\u201c On DATE officers of the LOC department of ORG , together with officers of ORG , acting on the basis of information concerning the murder of the head of the LOC administration , arrested PERSON Shokkarov . On DATE he was charged [ with a crime punishable ] under LAW and LAW ; on DATE his detention was authorised by a court . \u201d","The letter further mentioned that PERSON had partly confessed to the murder and described the circumstances of his death in the car crash . It also informed the applicants that the criminal proceedings against the ORG officer PERSON had been terminated for lack of corpus delicti .","On DATE the ORG prosecutor \u2019s office informed the applicants that PERSON death had been investigated by the military prosecutor \u2019s office and that the applicants had already been informed of the outcome of that investigation .","On DATE the ORG prosecutor \u2019s office informed the ORG representatives that on DATE the ROVD police officers had arrested PERSON on the basis of a written instruction from the ORG prosecutor \u2019s office . The letter further stated that PERSON had also been arrested and that on DATE , DATE , the PERSON brothers had been handed over to the investigator from the PERSON prosecutor \u2019s office , Mr GPE , and the servicemen of FAC .","On DATE the ORG prosecutor \u2019s office informed the ORG representatives that the military prosecutor \u2019s office had terminated the criminal proceedings against the ORG officer PERSON for lack of corpus delicti .","On DATE the first applicant complained to the GPE prosecutor \u2019s office , the military prosecutor \u2019s office of ORG ( \u201c the ORG prosecutor \u2019s office \u201d ) , ORG office and ORG office and requested to be provided with a copy of the decision of DATE concerning the termination of the criminal proceedings for lack of corpus delicti . He stated that PERSON confession to the murders had been obtained under duress , that several attempts by his lawyer to meet PERSON in detention had been futile and that the circumstances of his death in the car crash had been suspicious . The applicant further requested that this decision be overruled , that the investigation of PERSON death be continued and that he and the ORG representatives be provided with access to the criminal case file .","On DATE the applicants requested the ORG prosecutor \u2019s office to provide them with copies of documents relating to the investigation of PERSON death . On DATE they appealed against the decision to discontinue the criminal investigation into PERSON death ( see paragraph CARDINAL above ) .","On DATE the ORG prosecutor \u2019s office informed the ORG representatives that the criminal case had been joined with another criminal case and transferred to ORG on DATE .","On DATE the ORG prosecutor \u2019s office in ORG informed the applicants of the following :","\u201c ... based on the information received from the Sunzhenskiy ROVD and the statement obtained from CARDINAL of the participants [ in the arrest ] , it was established that on DATE , at the request of police officers from FAC who had arrived with the investigator of the LOC prosecutor \u2019s office Mr GPE and the head of the criminal search department of the Nadterechniy ROVD Mr S. , the officers of ORG had assisted them in arresting the PERSON brothers , who had been suspected of killing of the head of the FAC district administration .","After the arrest the PERSON brothers had been taken away by the officers of the Nadterechniy ROVD ... \u201d","The letter further stated that the applicants could obtain additional information about the detention from the investigator Mr PERSON and the head of the criminal search department of the Nadterechniy ROVD , Mr S.","According to the Government , at the material time LOC , the PERSON prosecutor \u2019s office and the FAC department of the ORG were situated next to each other in the same courtyard .","NORP On DATE the GPE district prosecutor \u2019s office in GPE ( \u201c the GPE prosecutor \u2019s office \u201d ) opened criminal case no . DATE in connection with the murder of CARDINAL officials from the LOC administration .","On DATE , in the course of the investigation in criminal case no . CARDINAL , the law - enforcement agencies arrested PERSON , who subsequently confessed to murdering the CARDINAL officials from the FAC district administration . The ORG stated that according to the detention record dated DATE , PERSON had been detained on DATE , and not on DATE .","On DATE PERSON was charged with the CARDINAL murders and on DATE ORG remanded him in custody .","On DATE the ORG officers PERSON were requested by the investigation to convey PERSON and his co - accused Mr PERSON to ORG for the reconstruction of the crime . The reconstruction had been requested by PERSON and his co - accused . In the vicinity of the village PERSON hit the driver in the back of the neck . The latter lost control of the vehicle , and the car fell into an open pit , turned over and exploded . As a result , the servicemen managed to get out of the car , but PERSON and Mr PERSON remained inside and died .","On DATE the ORG prosecutor \u2019s office terminated the criminal investigation in case no . DATE in respect of PERSON on account of his death .","On DATE the military prosecutor \u2019s office opened criminal case no . CARDINAL - CARDINALD against the ORG officer PERSON under LAW CARDINAL \u00a7 CARDINAL of LAW ( breach of rules on using a special vehicle causing CARDINAL or more deaths ) .","On DATE the military prosecutor \u2019s office discontinued the criminal proceedings against the officer for lack of corpus delicti .","On DATE criminal case no . CARDINAL - CARDINALD was transferred to the ORG prosecutor \u2019s office , where it was assigned no . DATE . On DATE the criminal case file was joined with criminal case no . CARDINAL under the joined number DATE .","On DATE ORG refused to examine the applicants\u2019 appeal against the decision of DATE for lack of territorial jurisdiction . The applicants failed to appeal against that decision .","The Government submitted that the applicants had not appealed against the decision of CARDINAL DATE to any of the courts in GPE .","On DATE , while the applicants , their relatives and other residents of the Satsita camp were waiting outside the ORG building for news of PERSON following his arrest , CARDINAL men in civilian clothes approached PERSON . They asked his relatives to wait for Visita just for TIME and took him through the gates into the courtyard of the ROVD . The applicants have not seen him ever since .","On DATE the first applicant requested the ORG prosecutor \u2019s office in ORG to institute an investigation into PERSON disappearance . On DATE the ORG prosecutor \u2019s office forwarded the request to the ORG prosecutor \u2019s office in GPE .","On DATE the first applicant complained about the abduction of PERSON and the death of PERSON to the GPE prosecutor \u2019s office . The complaint was received by the office on DATE .","On DATE the GPE prosecutor \u2019s office informed the applicants that the criminal proceedings concerning the death of PERSON had been terminated on DATE for lack of corpus delicti . The letter also stated that","\u201c ... PERSON , who had been detained with PERSON , was released by officers of ORG after a check ... \u201d","On DATE the ORG prosecutor \u2019s office dismissed the first applicant \u2019s complaint about the abduction of PERSON , stating that PERSON had been lawfully arrested in connection with criminal case no . TIME ( it appears that the investigators confused PERSON with his brother PERSON ) . They also noted that \u201c the military prosecutor \u2019s office had opened an investigation into PERSON death \u201d and that the applicant had been informed about its outcome .","On DATE the ORG prosecutor \u2019s office informed the ORG representatives that on DATE the ROVD police officers had arrested PERSON along with his brother PERSON and that on the same date , DATE , the PERSON brothers had been handed over to the investigator of the PERSON prosecutor \u2019s office , Mr GPE , and the servicemen of FAC from GPE , and that the subsequent whereabouts of the brothers were unknown to the ORG prosecutor \u2019s office ( see paragraph CARDINAL above ) .","On DATE the ORG prosecutor \u2019s office instituted an investigation into ORG disappearance under LAW ( kidnapping ) . The case was assigned no . DATE . The applicants were informed of the decision on DATE .","On DATE the ORG prosecutor \u2019s office granted the third applicant victim status in the criminal case . The decision stated that on DATE PERSON had been arrested along with his brother PERSON and taken to ORG and subsequently to the village of PERSON in the GPE district , and released DATE . However , PERSON had not returned home and had gone missing .","On DATE the GPE prosecutor \u2019s office informed the third applicant that an investigation into PERSON abduction was under way .","On an unspecified date the third applicant complained about the disappearance of PERSON to the PERSON district prosecutor \u2019s office in GPE . On DATE the office informed her that Visita had not been detained in the PERSON .","On DATE the third applicant complained to the Envoy about the abduction of PERSON . On DATE this complaint was forwarded to the GPE prosecutor \u2019s office and on DATE it was received by the ORG prosecutor \u2019s office .","On an unspecified date the PERSON forensic bureau informed the investigators that on DATE an investigator from the ORG prosecutor \u2019s office had brought PERSON corpse to the morgue and requested the third applicant to collect it . It appears that the investigator had been confused and instead of stating that the corpse belonged to PERSON he had stated that it had belonged to PERSON .","On DATE the ORG prosecutor \u2019s office opened criminal case no . DATE ( also referred to as no . MONEY ) under LAW \u00a7 CARDINAL of LAW ( kidnapping ) in connection with the abduction of PERSON from ORG on DATE .","On DATE the investigators granted the third applicant victim status in the criminal case and questioned her . The applicant stated that on DATE her relative PERSON and another man had been taken from the camp in GPE by armed masked men to the ORG in Ingushetia . After that she , her husband Visita and other relatives had gone to the ROVD to find out the reasons for PERSON \u2019s arrest . Near the ROVD her husband Visita had been approached by CARDINAL men , who had come out of the ROVD building . They had taken Visita into the police station . The applicant had attempted to follow Visita , but she had been stopped at the entrance by the deputy head of the ROVD , Mr GPE , who had told her that Visita had been taken in for questioning and would be released shortly afterwards . The applicant had seen through a crack in the fence that her husband Visita and his brother PERSON had been put by police officers into a UAZ car and after that the car had driven away . After that the ROVD policemen had told her that Visita had been taken from ORG , in the Nadterechniy district , GPE , by representatives of ORG . On DATE after Visita \u2019s abduction , the applicant and her relatives had gone to PERSON , where the investigator of the PERSON prosecutor \u2019s office Mr PERSON had informed her , having been in touch with the local branch of the ORG , that on DATE after the arrest PERSON had been released from the ORG and apparently had gone home . After that the applicant had requested information concerning ORG whereabouts at FAC , where she had been informed that he had not been detained there .","On DATE the investigators forwarded a number of information requests to various law - enforcement agencies in GPE , PERSON , ORG and the PERSON region , asking for any information concerning PERSON whereabouts . No pertinent information was received as a result .","On DATE the investigators questioned the first applicant , who stated that on DATE officers of ORG had arrived in CARDINAL ORG vehicles and taken away his son PERSON . Immediately after that the applicant and his relatives had gone to the PERSON , where the head of the ROVD had told him that PERSON had been suspected of murdering an official from the LOC administration . DATE , when the applicant had returned to the ROVD , he had seen the third applicant , who had been crying and waiting next to the police station . She had told him that the police officers had taken away her husband Visita . CARDINAL of them , a certain \u201c ORG \u201d , had told her that the police would soon release her husband . At TIME on DATE , DATE , CARDINAL ORG cars had left the courtyard of the ROVD and driven away to an unknown destination . After that the head of the ROVD had told the applicant and his relatives that the PERSON brothers had been taken by investigator Mr PERSON from the PERSON prosecutor \u2019s office to the village of GPE in GPE . On DATE the applicant had been informed by ORG that he could bring food and warm clothing for his detained sons . The applicant had brought some food and passed it on to the ORG officers . DATE the third applicant had gone to PERSON , where she had been told that PERSON had been released DATE after the arrest and that PERSON had continued to be detained on suspicion of killing the official .","On an unspecified date ORG informed the investigators that it had not arrested or detained PERSON and that he had not been listed as a member of any illegal armed groups .","On DATE the investigators questioned the investigator of the ORG prosecutor \u2019s office Mr GPE , who stated he could not recall the relevant details of the criminal investigation owing to the passing of time , but stated that he had requested the local court to remand PERSON in custody and that he could not recall whether CARDINAL or both brothers had been detained .","DATE . On DATE ( in the documents submitted the date was also indicated as DATE ) the investigators questioned police officer PERSON FAC , who stated that PERSON had not been brought to the ROVD and that the police had not conducted any checks in respect of him .","On DATE and DATE or DATE the investigators questioned Mr PERSON . and PERSON . T. , both of whom had been officers of ORG at the material time . Their statements were similar to the CARDINAL given by officer PERSON","On DATE ( in the documents submitted the date was also indicated as DATE ) the investigators examined the registration log of detainees in the Nadterechniy ROVD for the period between CARDINAL October CARDINAL and DATE . As a result , it was established that during this period PERSON had not been detained in the ROVD .","On DATE the investigators suspended the investigation in the criminal case owing to the failure to identify those responsible for PERSON abduction . The third applicant was informed of that decision .","On DATE the decision to suspend the investigation was overruled by the supervising prosecutor and the proceedings in the criminal case were resumed .","On DATE the Nadterechniy ROVD informed the investigators that they had not arrested or detained the PERSON brothers .","On DATE the Nadterechniy department of the ORG informed the investigators that no special operations had been conducted against the PERSON brothers in PERSON .","NORP Despite specific request by ORG did not disclose most of the contents of the criminal case files opened in connection with the death of PERSON and the abduction of PERSON . The Government provided copies of documents from the criminal case files running to CARDINAL pages ; the vast majority of the documents concerned third persons and only a few were relevant to the applicants\u2019 complaints . The Government stated that the investigation was in progress and that disclosure of the other documents would be in violation of LAW , since the file contained information concerning witnesses or other participants in criminal proceedings .","DATE . For a summary of the relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["2","3","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76307","languageisocode":"ENG","respondent":"DEU","branch":"GRANDCHAMBER","date":2006,"docname":"CASE OF JALLOH v. GERMANY","importance":1,"conclusion":"Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"Alvina Gyulumyan;Andr\u00e1s Baka;Christos Rozakis;Elisabet Fura;Georg Ress;Giovanni Bonello;Ireneu Cabral Barreto;J\u00e1n \u0160ikuta;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonp\u00e4\u00e4;Nicolas Bratza;Rait Maruste;Snejana Botoucharova","text":["The applicant was born in DATE and lives in GPE ( GPE ) .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE CARDINAL plain - clothes policemen observed the applicant on CARDINAL different occasions take a tiny plastic bag ( a socalled \u201c bubble \u201d ) out of his mouth and hand it over to another person in exchange for money . Believing that these bags contained drugs , the police officers went to arrest the applicant , whereupon he swallowed another bubble he still had in his mouth .","NORP The police officers did not find any drugs on the applicant . Since further delay might have frustrated the conduct of the investigation , the public prosecutor ordered that emetics ( Brechmittel ) be administered to the applicant by a doctor in order to provoke the regurgitation of the bag ( Exkorporation ) .","The applicant was taken to a hospital in LOC . According to the Government , the doctor who was to administer the emetics questioned the applicant about his medical history ( a procedure known as obtaining an anamnesis ) . This was disputed by the applicant , who claimed that he had not been questioned by a doctor . As the applicant refused to take the medication necessary to provoke vomiting , he was held down and immobilised by QUANTITY police officers . The doctor then forcibly administered to him a salt solution and the emetic ipecacuanha syrup through a tube introduced into his stomach through the nose . In addition , the doctor injected him with apomorphine , another emetic that is a derivative of morphine . As a result , the applicant regurgitated one bubble containing QUANTITY of cocaine . TIME after being arrested and taken to the hospital , the applicant was examined by a doctor and declared fit for detention .","When visited by the police in his cell TIME after being given the emetics , the applicant , who was found not to speak NORP , said in broken LANGUAGE that he was too tired to make a statement about the alleged offence .","Pursuant to an arrest warrant that had been issued by ORG , the applicant was remanded in custody on DATE .","The applicant maintained that for DATE following the treatment to which he was subjected he was only able to drink soup and that his nose repeatedly bled for DATE because of wounds he had received when the tube was inserted . This was disputed by the Government , who stressed that the applicant had failed to submit a medical report to prove his allegation .","DATE after the administration of the emetics , the applicant underwent a gastroscopy in the prison hospital after complaining of continuous pain in the upper region of his stomach . He was diagnosed as suffering from irritation in the lower area of the oesophagus caused by the reflux of gastric acid . The medical report did not expressly associate this condition with the forced administration of the emetics .","The applicant was released from prison on DATE . He claimed that he had had to undergo further medical treatment for the stomach troubles he had suffered as a result of the forcible administration of the emetics . He did not submit any documents to confirm that he had received medical treatment . The Government , for their part , maintained that the applicant had not received any medical treatment .","In his submissions dated DATE to ORG , the applicant , who was represented by counsel throughout the proceedings , objected to the use at his trial of the evidence obtained through the administration of emetics , a method he considered to be illegal . By using force to provoke the regurgitation of the bubble of cocaine , the police officers and the doctor concerned were guilty of causing him bodily harm in the course of their duties ( ORG ) . The administration of toxic substances was prohibited by LAW ( see paragraph CARDINAL below ) . His bodily functions had been manipulated , since bodily activity had been provoked by suppressing the control reactions of the brain and the body . In any event , administering emetics was a disproportionate measure and therefore not authorised by LAW ( see paragraphs CARDINAL and CARDINAL below ) . It would have been possible to obtain evidence of the alleged offence by waiting for the bubble to pass through his system naturally . The applicant further argued that the only other method authorised by LAW would have been irrigation of the stomach .","On DATE ORG convicted the applicant of drug trafficking and sentenced him to DATE imprisonment , suspended , and probation . It rejected the defence \u2019s argument that the administration of emetics under LAW was a disproportionate means of recovering a bubble containing just QUANTITY of cocaine .","NORP The applicant appealed against the judgment .","On CARDINAL DATE ORG upheld the applicant \u2019s conviction but reduced the length of the suspended prison sentence to DATE . It further ordered the forfeiture ( PERSON ) of MONEY that had been found on the applicant at the time of his arrest on the ground that it was the proceeds of sale of CARDINAL drug bubbles .","ORG found that the evidence obtained following the public prosecutor \u2019s order to provoke the regurgitation of the bubble of cocaine was admissible . The measure had been carried out because further delay might have frustrated the conduct of the investigation . Pursuant to LAW , the administration of the substances in question , even if effected against the suspect \u2019s will , was legal . The procedure had been necessary to secure evidence of drug trafficking . It had been carried out by a doctor and in compliance with the rules of medical science . The defendant \u2019s health had not been put at risk and the principle of proportionality had been adhered to .","NORP The applicant appealed against this judgment on points of law . He argued in particular that LAW did not authorise the administration of emetics , as it did not permit the administration of life - threatening substances by dangerous methods . Furthermore , Article CARDINALa prohibited measures such as the one in question that resulted in a suspect effectively being forced to contribute actively to his own conviction . He further submitted that the impugned measure had violated ORG and CARDINAL of LAW ( Grundgesetz \u2013 see paragraphs CARDINAL - CARDINAL below ) , and disregarded in particular the right to respect for human dignity .","On DATE ORG dismissed the applicant \u2019s appeal . It found that ORG judgment did not contain any error of law that was detrimental to the accused .","The applicant lodged a complaint with ORG . He reiterated that the administration of emetics was a disproportionate measure under LAW .","On DATE ORG declared the applicant \u2019s constitutional complaint inadmissible under the principle of subsidiarity .","It considered that the administration of emetics , including apomorphine , a morphine derivative , raised serious constitutional issues with respect to the right to physical integrity ( LAW see paragraph CARDINAL below ) and to the principle of proportionality which the criminal courts had not yet addressed .","The Federal Constitutional Court found that the applicant had not availed himself of all the remedies at his disposal ( alle prozessualen GPE ) to contest the measure before the criminal courts in order to avoid any underestimation of the importance and scope of the fundamental right laid down in LAW , first sentence , of LAW ( um eine PERSON und ORG . CARDINAL Abs . CARDINAL PERSON ) .","It further stated that the administration of emetics did not give rise to any constitutional objections of principle either with respect to human dignity protected by LAW or the principle against self - incrimination guaranteed by LAW read in conjunction with LAW .","Article CARDINAL \u00a7 CARDINAL of LAW reads as follows :","\u201c The dignity of human beings is inviolable . All public authorities have a duty to respect and protect it . \u201d","Article CARDINAL , in so far as relevant , provides :","\u201c CARDINAL . Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ] .","Every person shall have the right to life and physical integrity . ... \u201d","Article CARDINALa of the Code of Criminal Procedure , in so far as relevant , reads as follows :","\u201c CARDINAL . A physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings . To this end , blood samples may be taken and other bodily intrusions effected by a doctor in accordance with the rules of medical science for the purpose of examination without the accused \u2019s consent , provided that there is no risk of damage to his health .","Power to make such an order shall be vested in the judge and , in cases in which delay would jeopardise the success of the examination , in the public prosecutor \u2019s office and officials assisting it ... \u201d","Article CARDINALa of the Code of Criminal Procedure on prohibited methods of interrogation ( verbotene Vernehmungsmethoden ) provides :","\u201c CARDINAL . NORP The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill - treatment , induced fatigue , physical interference , the administration of drugs , torment , deception or hypnosis . Coercion may be used only in so far as it is permitted by the law on criminal procedure . Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited .","Measures which impair the accused \u2019s memory or ability to understand and accept a given situation [ Einsichtsf\u00e4higkeit ] shall not be permitted .","The prohibition under sub - paragraphs CARDINAL and CARDINAL shall apply even if the accused has consented [ to the proposed measure ] . Statements obtained in breach of this prohibition shall not be used [ in evidence ] , even if the accused has agreed to their use . \u201d","NORP criminal courts and legal writers disagree as to whether LAW of LAW authorises the administration of emetics to a suspected drug dealer who has swallowed drugs on arrest .","The view taken by the majority of the NORP courts of appeal ( see , inter alia , the decision of ORG of DATE , ORG - RR CARDINAL , p. CARDINAL , and the judgment of ORG of DATE , PERSON DATE , pp . CARDINAL - CARDINAL ) is that LAW can serve as a legal basis for the administration of emetics in such circumstances .","For example , in its judgment cited above , ORG had to deal with the case of a suspected drug dealer who agreed to swallow ipecacuanha syrup after being threatened with its administration through a nasogastric tube if he refused . It found :","\u201c Pursuant to LAW , first sentence , of LAW , a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings . ...","( a ) Contrary to the view taken by the appellant , legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs the accused has swallowed involves a bodily intrusion within the meaning of that provision ( see PERSON , ORG , CARDINALnd edition , \u00a7 CARDINAL ; GPE in ORG , ORG , CARDINALth edition , \u00a7 CARDINAL ; PERSON , ORG , CARDINALth edition , \u00a7 \u00a7 CARDINAL , DATE ; see , with regard to LAW , PERSON , SKStPO , Article CARDINALa , \u00a7 CARDINAL and NStZ DATE , pp . CARDINAL - CARDINAL , and PERSON , NJW DATE , pp . CARDINAL et seq . ; contrast ORG , ORG , p. CARDINAL with note by GPE , StV DATE , p. CARDINAL ) .","This intrusion also does not violate human dignity protected by LAW or the principle against self - incrimination contained in LAW read in conjunction with LAW . Pursuant to LAW , third sentence , of LAW , interferences with these basic rights are permitted if they have a statutory basis . ORG has already found on several occasions that , as a statutory provision enacted by ORG , Article CARDINALa of the Code of Criminal Procedure meets this requirement ... Furthermore , it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either ( see ORG , StV DATE , p. DATE the decision in the present case ) . It did not , therefore , find it necessary to discuss in detail the opinion expressed by the GPE ( ORG ( ORG DATE , pp . DATE ) which is occasionally shared by legal writers ( see GPE , StV DATE , pp . CARDINAL - CARDINAL ) , ... that the administration of emetics forces the accused to contribute to his own conviction and to actively do something he does not want to , namely regurgitate . ORG does not share the [ ORG \u2019s ] view either , as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes \u2018 involuntary bodily ORG . ...","( e ) ... this ORG does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force . That point is not in issue in the present case ... ORG ... stated that [ on the facts of ] the case decided by the GPE ( ORG it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure . It did , however , expressly and convincingly demonstrate that the facts of the present case were different . \u201d","In its judgment of DATE , however , the GPE ( ORG held that LAW did not authorise the administration of emetics . The case concerned the administration of an overdose of ipecacuanha syrup to a suspected drug dealer by force through a nasogastric tube and his injection with apomorphine . The court found :","\u201c The forced administration of emetics was not covered by LAW . Even Article CARDINALa does not justify the administration of an emetic by force . Firstly , the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision . It is true that searching for foreign objects may be justified by LAW ... However , the emetic was used not to search for foreign objects , but to retrieve objects \u2013 whose presence was at least probable \u2013 in order to use them in evidence ... This aim was more akin to searching for or seizing an object within the meaning of Articles CARDINAL , CARDINAL et seq . of LAW than to a physical examination ... \u2013 although those provisions do not , on the face of it , include forcible interference with a person \u2019s physical integrity as a possible measure . ...","Secondly , an accused is not the object of criminal proceedings ... The forced administration of emetics violates the principle of passivity [ ORG ] , since its purpose is to force the accused actively to do something that he is unwilling to do , namely regurgitate . This is neither permitted under LAW nor compatible with the position of the accused in criminal proceedings . ...","Consequently , the conduct of the prosecuting authorities constitutes unlawful interference with the accused \u2019s physical integrity ( LAW , first sentence , of LAW ) . ...","The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused \u2019s general personality rights ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ) . ...","The prohibition on obtaining the evidence [ in that manner ] ... \u201d","According to many legal writers , LAW authorises the administration of emetics to suspected drug dealers in order to obtain evidence ( see also the authors cited above at paragraph CARDINAL ) . This view is taken , for example , by PERSON ( NStZ DATE , pp . CARDINAL - CARDINAL and PERSON zur GPE und zum Gerichtsverfassungsgesetz , PERSON , Article CARDINALa StPO , \u00a7 DATE ) and by PERSON and PERSON ( ORG , CARDINALth edition , Article CARDINALa , \u00a7 DATE administration of emetics permitted for the investigation of serious offences ) .","A considerable number of legal writers , however , take the view that LAW , Article CARDINALa in particular , does not permit the administration of emetics . This opinion is held , for example , by PERSON DATE , pp . CARDINAL , and KritV DATE , pp . CARDINAL - CARDINAL ) , who considers that Article CARDINALa does not authorise a search \u2013 as opposed to an examination \u2013 of the interior of a defendant \u2019s body . Vetter ( NORP des \u00a7 CARDINALa ORG \u2013 PERSON am PERSON der Brechmittelvergabe i m strafrechtlichen ORG , Neuried DATE , pp . DATE , CARDINAL ) considers that the forcible administration of emetics through a nasogastric tube is irreconcilable with the rules of medical science , disproportionate and liable to damage the defendant \u2019s health .","Medical experts disagree as to whether the forcible administration of emetics through the insertion of a nasogastric tube is advisable from a medical point of view . While some experts consider that emetics should be administered to a suspect in order to protect his health even if he resists such treatment , others take the view that such a measure entails serious health risks for the person concerned and should not therefore be carried out .","The medical experts who argue in favour of the forcible administration of emetics stress that even if this measure is not primarily carried out for medical reasons , it may nevertheless serve to prevent a possibly life - threatening intoxication . As the packaging of drugs swallowed on arrest is often unreliable , it is preferable from a medical standpoint for emetics to be administered . This measure poses very few risks , whereas there is a danger of death if the drugs are allowed to pass through the body naturally . Drugs can be extracted from the stomach up to TIME , in some cases CARDINAL , after being swallowed . Administering emetics is a safe and fast method ( the emetic usually takes effect within TIME ) of retrieving evidence of a drugs offence , as it is rare for them not to work . Even though the forcible introduction of a tube through the nose can cause pain , it does not pose any health risks as the act of swallowing can be induced by the mechanical stimulus of the tube in the throat ( see , inter alia , PERSON , PERSON , PERSON , PERSON and PERSON , \u201c ORG \u2013 Erfahrungen i m LOC \u201d , Kriminalistik CARDINAL\/CARDINAL , pp . CARDINAL - CARDINAL ) .","The emetic ipecacuanha syrup has a high margin of safety . ORG to be expected merely take the form of drowsiness , diarrhoea and prolonged vomiting . Rare , more serious complications include ORG syndrome or aspiration pneumonia . These may occur if the person concerned has sustained previous damage to his or her stomach or if the rules governing the administration of emetics , notably that the patient is fully alert and conscious , are not observed ( see , for example , PERSON , PERSON , PERSON , PERSON and PERSON , cited above , pp . CARDINAL - CARDINAL , and ORG and ORG , \u201c Position Paper : Ipecac Syrup \u201d , ORG , ORG , vol . DATE , no . DATE , pp . CARDINAL , in particular , p. CARDINAL ) .","Those medical experts who argue against the administration of emetics by force point out in particular that the forcible introduction of emetics through a nasogastric tube entails considerable health risks . Even though it is desirable for drugs to be eliminated from the suspect \u2019s body as quickly as possible , the use of a nasogastric tube or any other invasive method can be dangerous because of the risk of perforation of the drug packaging with potentially fatal consequences . Furthermore , if the tube is badly positioned liquid may enter the lungs and cause choking . Forced regurgitation also involves a danger of vomit being inhaled , which can lead to choking or a lung infection . The administration of emetics can not therefore be medically justified without the consent of the person concerned , and , without this consent , this method of securing evidence will be incompatible with the ethics of the medical profession , as has been illustrated in particular by the death of a suspect following such treatment ( see , inter alia , PERSON , PERSON and PERSON , PERSON , DATE , pp . DATE ; ORG of ORG , report dated DATE in response to ORG request to assess the dangers involved in the forcible administration of emetics ; and the resolution adopted by the CARDINALth German Medical Conference , Activity Report of ORG , point CARDINAL ) .","There is no uniform practice on the use of emetics to secure evidence of a drugs offence in the NORP L\u00e4nder . Since DATE , CARDINAL of the CARDINAL L\u00e4nder ( GPE , GPE , GPE , GPE and GPE ) have used this measure on a regular basis . Whereas some ORG discontinued its use following the death of a suspect , others are still resorting to it . In the vast majority of cases in which emetics have been used , the suspects chose to swallow the emetic themselves , after being informed that it would otherwise be administered forcibly . In other ORG , emetics are not forcibly administered , partly because , on the basis of medical advice , it is regarded as a disproportionate and dangerous measure , and partly because it is not considered a necessary means of combating drugs offences .","There have been CARDINAL fatalities in GPE as a result of the forcible administration of ipecacuanha syrup to suspected drug dealers through a tube introduced through the nose into the stomach . In DATE a NORP national died in GPE . According to the investigation , he had suffered a cardiac arrest as a result of stress caused by the forcible administration of emetics . He was found to have been suffering from an undetected heart condition . In DATE a ORG national died in GPE . The investigation into the cause of his death has not yet been completed . The emergency doctor and a medical expert suggested that the applicant had drowned as a result of a shortage of oxygen when water permeated his lungs . Criminal investigations for homicide caused by negligence have been launched against the doctor who pumped the emetic and water into the suspect \u2019s stomach and against the emergency doctor called to attend to him .","As a consequence of the fatality in GPE , the Head of ORG ( Leitender Oberstaatsanwalt ) has ordered the forcible administration of emetics to be discontinued in GPE for the time being . Pending the outcome of the investigation , a new procedure has been set up by the Senators for ORG and the ORG . Under this procedure , a person suspected of swallowing drugs must be informed by a doctor about the risks to his health if the drugs remain in his body . The suspect can choose to take emetics or a laxative if a medical examination discloses that it poses no risks to his health . Otherwise , he is detained in a specially equipped cell until the drug packages are passed naturally .","The Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment , as adopted by ORG on DATE ( resolution CARDINAL ) , provides :","\u201c For the purposes of this Convention , the term \u2018 torture\u2019 means any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions . \u201d","\u201c ORG shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings , except against a person accused of torture as evidence that the statement was made . \u201d","\u201c ORG shall undertake to prevent in any territory under its jurisdiction other acts of cruel , inhuman or degrading treatment or punishment which do not amount to torture as defined in DATE , when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . In particular , the obligations contained in LAW , DATE , DATE and CARDINAL shall apply with the substitution for references to torture of references to other forms of cruel , inhuman or degrading treatment or punishment . \u201d","In GPE v. GPE ( CARDINAL GPE CARDINAL ( DATE ) ) , ORG reversed the petitioner \u2019s conviction for unlawful possession of drugs . On the basis of information that the petitioner was selling narcotics , CARDINAL state officers entered his home and forced their way into his bedroom . They unsuccessfully attempted to extract by force drug capsules which the petitioner had been observed to put into his mouth . The officers then took him to a hospital , where an emetic was forced through a tube into his stomach against his will . He regurgitated CARDINAL capsules which were found to contain morphine . These were admitted in evidence in the face of his objection . ORG held on DATE that the conviction had been obtained by methods in violation of ORG in LAW .","Mr Justice PERSON , delivering the opinion of the ORG , found :","\u201c Applying these general considerations to the circumstances of the present case , we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically . This is conduct that shocks the conscience . Illegally breaking into the privacy of the petitioner , the struggle to open his mouth and remove what was there , the forcible extraction of his stomach \u2019s contents DATE this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities . They are methods too close to the rack and the screw to permit of constitutional differentiation .","It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained . This was not true even before the series of recent cases enforced the constitutional principle that the GPE may not base convictions upon confessions , however much verified , obtained by coercion . ... It would be a stultification of the responsibility which the course of constitutional history has cast upon this ORG to hold that in order to convict a man the police can not extract by force what is in his mind but can extract what is in his stomach .","To attempt in this case to distinguish what lawyers call \u2018 real evidence\u2019 from verbal evidence is to ignore the reasons for excluding coerced confessions . Use of involuntary verbal confessions in ORG criminal trials is constitutionally obnoxious not only because of their unreliability . They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true . Coerced confessions offend the community \u2019s sense of fair play and decency . So here , to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us , would be to afford brutality the cloak of law . Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society . \u201d","In State of GPE v. PERSON ( DATE WL CARDINAL ( ORG . CARDINAL Dist . ) ) , ORG held on DATE that the pumping of the defendant \u2019s stomach in the face of his objections was not an unreasonable search and seizure . The defendant was observed engaging in a hand - to - hand transaction typical of drug dealing . When police officers ordered the defendant to their vehicle , he put something in his mouth and ran off . In the opinion of the court , flushing out the defendant \u2019s stomach by gastric lavage by a physician in a hospital setting was not an unreasonable measure , even though the defendant violently objected to the procedure and had to be sedated . Swallowing the cocaine , which had been seen in the defendant \u2019s mouth , put his life in jeopardy and he was destroying evidence .","Mr Justice PERSON , delivering ORG opinion , found :","\u201c CARDINAL . PERSON directs us to NORP v. GPE , CARDINAL GPE DATE ) , ... CARDINAL of the prominent cases on intrusive searches .","...","Rochin is not dispositive , however . After ORG decided PERSON v. GPE , CARDINAL GPE CARDINAL ( DATE ) , CARDINAL ORG . DATE , CARDINAL ORG CARDINAL , in which a police officer ordered an individual suspected of driving while intoxicated to submit to a blood test at the hospital where he was being treated for injuries sustained in an automobile collision . ORG noted that \u2018 LAW proper function is to constrain , not against all intrusions as such , but against intrusions which are not justified in the circumstances , or which are made in an improper manner\u2019 . ... Finding no LAW violation , the ORG set forth several criteria to be considered in determining the reasonableness of an intrusive search : CARDINAL ) the government must have a clear indication that incriminating evidence will be found ; CARDINAL ) the police officers must have a warrant , or , there must be exigent circumstances , such as the imminent destruction of evidence , to excuse the warrant requirement ; and CARDINAL ) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner .","...","Applying the PERSON factors to the facts of this case , it is apparent that the pumping of Williams\u2019 stomach was a lawful search and seizure . First , the officers observed PERSON in an area known for illegal drug activity engage in a hand - to - hand transaction indicative of drug activity . When he saw the officers , he put whatever was in his hand in his mouth and then ran away . This behavior was a \u2018 clear indication\u2019 to the officers that PERSON had secreted drugs in his mouth . Moreover , it was reasonable for the officers to conclude that Williams\u2019 life could be in jeopardy after they observed crack cocaine in his mouth and saw him trying to chew it and swallow it . Furthermore , PERSON was destroying the evidence necessary to convict him of drug possession . Accordingly , this case falls within the exigent circumstances exception to the warrant requirement .","Finally , it is apparent that the method and manner of the search were not unreasonable . The facts indicate that a physician administered Williams\u2019 medical treatment in a hospital setting , according to accepted medical procedures ...","In PERSON , ORG expressed an acceptance of a search conducted in a reasonable manner by a physician . The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening .","Assuming that [ a defendant ] swallowed the cocaine , if the drugs were packaged in such a way as to be impervious to intestinal processes , the physician would certainly be in a position to pump the stomach of the [ defendant ] , which is a reasonable medical procedure less traumatic than the forced emetic in DATE . Again , this is the kind of conduct that PERSON finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision . \u201d","The Government submitted a survey based on information obtained from the governments of the member ORG via their Agents or , if the government concerned had not provided information , from ORG in the country concerned . According to the survey , emetics are forcibly administered to suspected drug dealers in practice in CARDINAL countries ( GPE , GPE , \u201c the former GPE \u201d and GPE ) . In CARDINAL countries emetics are not used against a suspect \u2019s will to retrieve drug bubbles that have been swallowed ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . In CARDINAL countries ( GPE , GPE and GPE ) there is a legal basis for the use of emetics , but no information was supplied as to whether this measure is applied in practice . No information with respect to the use of emetics in practice was obtained from CARDINAL member GPE ( GPE , GPE , GPE , GPE , GPE and GPE ) .","The applicant partly contested the ORG \u2019s findings . He noted that the ORG had said that CARDINAL countries other than GPE ( GPE , \u201c the former GPE \u201d and GPE ) permitted the administration of emetics to suspected drug dealers and used the measure in practice . However , he said that the Government had failed to adduce any evidence of emetics being administered by force against the accused \u2019s will in those member GPE . With respect to GPE in particular , the applicant disputed that the forcible introduction of a nasogastric tube as in his case was legal . As regards the administration of emetics in GPE , GPE and GPE , he contested the existence of any legal basis for such a measure in those countries , irrespective of the position in practice . Consequently , GPE was the only ORG which was proven to actually resort to the impugned measure . In all the other member GPE the authorities waited for the drugs to pass through the body naturally .","Other materials before the ORG confirm the parties\u2019 findings that emetics are not forcibly administered in practice in GPE examined ( GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) . In these GPE , the authorities wait for the drugs to pass through the body naturally . Use is routinely made of special toilets to recover and clean drugs that have been swallowed . The materials further indicated that in GPE special toilets ( so - called LAW toilets ) are generally used in order to recover ingested drugs . However , during its visit to GPE in DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) witnessed the administration of an emetic ( brine ) to a detainee in GPE police headquarters ( see the ORG report on its visit to GPE in DATE , \u00a7 DATE ) . With respect to GPE , it has not been confirmed whether emetics are administered by force in practice ."],"violated_articles":["3","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110461","languageisocode":"ENG","respondent":"POL","branch":"COMMITTEE","date":2012,"docname":"CASE OF TOMCZYKOWSKI v. POLAND","importance":4,"conclusion":"No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)","judges":"George Nicolaou;Ledi Bianku;Vincent A. De Gaetano","text":["The applicant was born in DATE and lives in GPE .","By a judgment of DATE ORG dismissed the applicant \u2019s appeal against a second - instance administrative decision of DATE by which the second - instance authority had refused to acknowledge that the applicant \u2019s ailment was of an occupational character .","This judgment was served on the applicant on DATE .","On DATE the applicant requested to be granted legal aid .","On an unspecified date ORG refused to assign a lawyer to the case . Subsequently , on DATE it allowed the applicant \u2019s request after ORG had instructed it that it had no right to refuse .","On DATE the lawyer assigned to the case had effective access to the case - file . On DATE the lawyer lodged a cassation appeal together with a request for retrospective leave to appeal out of time with ORG .","By a decision of CARDINAL DATE that court rejected the cassation appeal . It noted that the DATE time - limit for lodging a request for leave to appeal out of time had started , at the latest and if counted in a manner most advantageous to the applicant , on DATE when the legal - aid lawyer had had an opportunity to have effective access to the case file . In the present case that time - limit had started to run on DATE , while the request had been lodged with the court on DATE . It had therefore to be rejected for failure to comply with the time - limit .","NORP The lawyer appealed . On DATE ORG upheld the contested decision and shared the legal view expressed by the regional court .","The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG \u2019s judgment in the case of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE .","NORP In particular , in its decision no . II FZ CARDINAL\/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legally - aided applicant could be admitted for examination .","When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legallyaided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL of DATE and ORG , I CARDINAL CARDINAL\/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , II ORG CARDINAL\/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL\/CARDINAL of CARDINAL DATE ) .","In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant caselaw of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legalaid lawyer ( I FZ CARDINAL\/CARDINAL of DATE ; I ORG CARDINAL\/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL\/CARDINAL of DATE ; II OZ CARDINAL\/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL\/CARDINAL of DATE ; I FZ CARDINAL of DATE ; II OZ CARDINAL\/CARDINAL of DATE ; I FZ CARDINAL of DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-138424","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2013,"docname":"PETROV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Dmitry Dedov;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["NORP The applicant , Mr PERSON Petrov , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE region .","ORG ( \u201c the Government \u201d ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG of the ORG opened a criminal investigation of the activities of PERSON . PERSON . , the director of the said company , testified that PERSON was de facto in charge of the company \u2019s activities .","NORP The investigator established that Mr NORP had visited a certain law office on several occasions , and asked the court to authorise a search of its LOC in order to seize the company \u2019s financial documents and stamps .","On DATE the GPE ORG granted the investigator \u2019s request . The court order referred to a search of a law office located in a block of flats . Neither the applicant \u2019s name nor specific flats owned by him were indicated . The applicant \u2019s flats were searched DATE on the basis of the court order .","On DATE the applicant complained to the court . He sought to have the search declared unlawful .","On DATE ORG dismissed the applicant \u2019s complaint . The court found that the search had been carried out in accordance with the applicable provisions of the rules of criminal procedure . The applicant appealed , alleging that the court had erred in matters of law .","On DATE ORG upheld the decision of CARDINAL November CARDINAL on appeal . The court dismissed the applicant \u2019s allegations as unsubstantiated and found no violation of any applicable law . The court noted that the search had been subject to prior judicial approval and had been conducted by authorised persons .","On DATE the ORG of ORG quashed , by way of supervisory review , the decisions of DATE and DATE and remitted the matter for fresh consideration .","On DATE ORG allowed the applicant \u2019s claim and found the search of the applicant \u2019s flats to be in contravention of LAW of LAW of GPE . The court established that the order of DATE had not authorised a search of the applicant \u2019s flats . It also accepted the applicant \u2019s argument that police officer PERSON , who had conducted the search of the flats , had not been authorised to do so .","On DATE ORG upheld the decision of CARDINAL DATE on appeal .","The LAW of the Russian Federation establishes that the home is inviolable . No one shall enter a dwelling against the will of those living there , unless otherwise established by a federal law or in accordance with a court order ( LAW ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106553","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF G\u00dcLER AND \u00d6NGEL v. TURKEY","importance":4,"conclusion":"Violation of Art. 3 (substantive aspect)","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi","text":["The applicants were born in DATE and DATE respectively .","On DATE a large group of demonstrators , including the applicants , gathered in FAC in front of ORG in GPE to attend the reading out of a statement to the press in protest against the NATO summit which was being held in GPE on DATE . The demonstration was organised by KESK ( ORG \u2013 ORG ) . A large group of police officers , all wearing helmets and gas masks and equipped with the necessary material , was also deployed to the area . CARDINAL demonstrators took part in the demonstration and slogans were chanted against ORG . After the statement was read out by the representative of KESK , the demonstrators started to disperse . A small group of demonstrators , carrying the flags of their non - governmental organisation PERSON LOC ) , walked towards the police officers who had blocked FAC to prevent the group from approaching FAC . The demonstrators attacked the police officers with sticks and stones and the police officers used tear gas and truncheons to disperse the group . Some of the nearby shops and vehicles were damaged during the incident . According to the incident report , QUANTITY police officers were wounded during the incident .","The applicants , who had listened to the press statement , were arrested during this incident . According to the applicants , they were beaten and insulted during and after their arrest . DATE , they were taken to ORG for a medical examination . According to the applicants , the doctor examined them in the presence of the police officers . A copy of the medical report is not included in the case file .","On DATE the applicants were taken to ORG for a further medical examination . The doctor who examined the applicants concluded that both of them were unfit to work for DATE . The following findings were noted in the medical report :","\u2013 PERSON : Large bruises on the back of the upper left arm , bruises on the back , bruises on the shoulders and on the waist , bruises on the right shoulder , bruises on the left gluteal region , tenderness of the left leg .","\u2013 GPE Kurtulu\u015f \u00d6ngel : Several bruises on the back of the left shoulder , bruise on the upper side of the right shoulder blade , bruises on the left and right sides of the back , a bleeding wound on the left elbow , a bruise on the right knee , bruises on the left knee . The doctor also noted that the applicant had a nose bleed .","DATE , the applicants were released upon the order of ORG .","On DATE the applicants filed a petition with the ORG public prosecutor against the police officers who had carried out their arrest . In their petition , the applicants complained , inter alia , that their arrest had been unlawful and that the police officers had used excessive force during and after the arrest .","On DATE the ORG public prosecutor issued a decision of non - prosecution in respect of the police officers who had been on duty at the relevant time . In his decision , the public prosecutor considered that the force used by the security forces had been in line with LAW no . DATE on the Duties and Powers of the Police and had not been excessive . In the public prosecutor \u2019s opinion , the injuries sustained by the applicants had been caused by a use of force which was proportionate . In delivering this decision , the public prosecutor had regard to the fact that after the press statement had been read out , a group of CARDINAL people had not dispersed and had attacked the police officers with sticks and stones , also causing damage to nearby shops and vehicles . In the public prosecutor \u2019s opinion , the force used by the police had therefore been proportionate .","On DATE the applicants filed an objection against the public prosecutor \u2019s decision .","On DATE ORG dismissed the applicants\u2019 objection .","In the meantime , on DATE , the ORG public prosecutor filed a bill of indictment against DATE accused , including the applicants , with ORG and accused them under LAW no . CARDINAL of taking part in an illegal demonstration without prior authorisation and of not dispersing despite the police ORG warning . QUANTITY police officers , who had been wounded during the incident , joined the proceedings as intervening parties .","On DATE ORG acquitted the applicants of the charges against them . In delivering its decision , ORG had regard to a video recording of the incident , to witness statements and to the submissions of the intervening parties . The court found it established that the applicants were not amongst the demonstrators who had been carrying \u201c Halkevleri \u201d flags and had attacked the police officers . The court accordingly stated that there was no evidence in the file to support a finding that the applicants had violated PERSON no . CARDINAL or resisted the police officers as alleged .","Article CARDINAL of Law no . CARDINAL on the Duties and Powers of the Police provides :","\u201c The police may use firearms :","( a ) In self defence , ... ;","( h ) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police . \u201d","\u201c In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary , threat of attack or an attack , the police may use force to subdue these actions .","Use of force refers to the use of bodily force , physical force and all types of weapons specified in the law and may gradually increase according to the nature and level of resistance or attack with a view to restoring calm .","In cases of intervention by group forces , the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force . \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88871","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2008,"docname":"PREUSSISCHE TREUHAND GMBH AND CO. KG A. A. v. POLAND","importance":3,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["NORP The applicant , ORG KG a . A. ( \u201c the applicant company \u201d ) , is a NORP legal person \u2013 a limited partnership DATE with its registered office in GPE . It pursued the application on behalf of , and in connection with facts concerning , CARDINAL natural persons ( \u201c the individual applicants \u201d ) , its shareholders , all NORP nationals who authorised the applicant company to act for them in the proceedings before the ORG . Their names and personal details are listed in an annex attached to the present decision . The applicant company was represented before the ORG by Mr T. Gertner , a lawyer practising in Bad LOC .","The NORP authorities prepared plans for the evacuation of NORP civilians from eastern LOC , including from what are now the western and northern parts of GPE situated east of the PERSON - Neisse line , towards the end of the Second World War . The implementation of the plans started on various dates . Most of the evacuation began in DATE and continued throughout DATE or even DATE .","The evacuation of GPE was effected in CARDINAL stages . The first took place in DATE , the second in DATE . The population was evacuated to GPE . The third stage started on DATE , during the NORP offensive , and was carried out throughout DATE . The capital city , GPE , surrendered to the NORP on DATE . ORG took control of this territory in DATE . It was later annexed to GPE and at present belongs to GPE .","The evacuation of GPE started in DATE but was delayed and further suspended ( at DATE ) on account of the fact that massive groups of people evacuated from GPE had filled the territory .","The evacuation of LOC began on DATE . The population was evacuated to GPE and GPE .","The evacuation of GPE ( ORG ) and GPE ( ORG ) started on DATE .","The NORP State , by virtue of several laws enacted in DATE and DATE , formally expropriated the property left behind by NORP following their evacuation or expulsion or still occupied by them in the former NORP territories east of the PERSON - Neisse line . The expropriation laws concerned agricultural and forest land , industry and enterprises and other \u201c post - NORP \u201d property ( see paragraph CARDINAL below ) .","They included laws not addressed exclusively to NORP , for instance decrees on the takeover by the ORG of certain forests and the DATE nationalisation law , whereby most private owners either had their property expropriated entirely ( with or without compensation ) or could retain only a certain proportion of it . However , NORP were treated differently since size limitations did not apply to their property , which was expropriated without compensation .","The second group of laws specifically concerned the takeover of NORP property , with a separate set of regulations regarding the \u201c LOC \u201d and the confiscation of property belonging to persons NORP or others \u2013 who were disloyal to the NORP State or nation during the war . They included the Law of DATE on Abandoned and ORG ( ustawa o maj\u0105tkach opuszczonych i porzuconych \u2013 \u201c the DATE Act \u201d ) , LAW on abandoned or post - NORP property ( dekret o maj\u0105tkach opuszczonych i poniemieckich \u2013 \u201c the DATE Decree \u201d ) , the Decree of DATE on the agrarian system and settlement in GPE and the former GPE of Gda\u0144sk ( dekret o ustroju rolnym i osadnictwie na obszarze PERSON i by\u0142ego PERSON \u2013 \u201c the September CARDINAL Decree \u201d ) and the Decree of DATE on the seizure of property of GPE at war with the NORP State in DATE and of property of legal persons and citizens of those GPE and on the receivership of such property ( dekret o zaj\u0119ciu maj\u0105tk\u00f3w pa\u0144stw pozostaj\u0105cych z PERSON w stanie wojny w latach CARDINAL - CARDINAL i maj\u0105tk\u00f3w os\u00f3b prawnych i obywateli tych pa\u0144stw oraz o zarz\u0105dzie przymusowym nad tymi maj\u0105tkami ) .","The facts of the case , as submitted by the individual applicants , may be summarised as follows .","In DATE , having learned of the ORG ' decision to divide GPE into occupation zones , the applicant 's family left their farm in GPE ( at present ORG ) , owned by the applicant 's father , PERSON , before the advancing ORG arrived . They reached the NORP occupation zone . The applicant submits that he has still not been allowed to return to his home and has been refused restitution of his property .","M.B. , the applicant 's mother , was driven from her family farm in ORG ( at present Roztoka ) and died , while fleeing , on CARDINAL or DATE . The applicant , as his mother 's heir , has still not been allowed to return to the family 's home and has been refused restitution of his property .","At DATE the applicant and her brothers and sisters , together with an aunt and her family , left their place of residence , ORG ( at present ORG ) , in the district of PERSON ( at present LOC ) in LOC to escape the advancing ORG . They and the other NORP had TIME to join a convoy of horse - drawn vehicles in the neighbouring village of PERSON . The applicant 's grandfather , ORG , after the applicant and her family had been forced to leave , was shot or beaten to death by NORP troops on his own farm , and the farm buildings were burned . The house , however , survived .","After spending a long time on the road and enduring severe hardship , the applicant and her family reached PERSON . They have still not been allowed to return to their home and have been refused restitution .","NORP In DATE or DATE , the applicant and his family were forced to leave their farm in GPE ( at present GPE ) . Each person was allowed to take CARDINAL suitcase . From the railway station at ORG ( at present PERSON ) , they were taken west in cattle wagons , experiencing the bombing of GPE on the way . The applicant and his family eventually reached ORG ( ORG ) . In DATE he left the former GPE and moved to GPE . He has still not been allowed to return to his property and has been refused restitution .","On DATE , the applicant 's parents and their children were forced to leave their house in GPE ( at present ORG ) since ORG was QUANTITY away and their evacuation was ordered . Nonetheless , they later returned to ORG , where , according to him , looting , rape and so on were DATE occurrences .","In DATE and DATE the first NORP arrived , taking over homes and farms . At DATE the family 's farm was confiscated by the NORP militia . The applicant 's father was later arrested by NORP , and taken without reason to the police station at GPE ( at present GPE ) , where he suffered ill - treatment for DATE . He was then brought before a judge and released . The applicant himself , whose arrest had also been planned , was forced to work for nothing on the farm without any help . Early in DATE , the NORP began to deport the NORP from ORG ( at present ORG ) . Since the family 's residence permits were due to expire on DATE , they first went to LOC and then to GPE , finally reaching the NORP occupation zone in DATE . They have still not been allowed to return to their property and have been refused restitution . The family also left behind property in GPE ( at present ORG ) .","In DATE , the applicant 's grandparents were expelled from Zoppot ( at present GPE ) . They went overland westwards .","The applicant has still not been allowed to return to his family home and restitution has been refused .","NORP In DATE the applicant 's mother and her family were expelled from their farm in PERSON ( at present ORG ) by the NORP militia . They were not allowed to take anything with them . The applicant and her mother went first to NORP neighbours , who gave them a room . The applicant 's mother had previously been denounced and falsely accused of stealing a horse 's harness from a LOC . For DATE , she was required to report DATE to the militia , where she spent DATE cleaning toilets and other rooms in the barracks , and looking on while other NORP were questioned and beaten . The applicant and her mother then went back to their home , which had been given to another LOC in the meantime . They were given the room in which the grandmother was still living , but were not allowed to use the toilet or water , and stones were thrown through their window . They also had to pay rent . Having found other quarters , they finally left in DATE .","They remained in GPE until DATE , and then travelled on a visitor 's visa to GPE , where they decided to stay and where they still live .","The applicant submits that they have repeatedly applied to the NORP authorities for restitution of their property , but have been refused on the ground that , as NORP , they have not been rehabilitated . The applicant has not submitted any documents or other evidence showing that she submitted her claims to any NORP administrative , judicial or other authority .","In DATE , the applicant 's father and his family were visited by NORP militiamen in their house in Bad Charlottenbrunn ( at present PERSON ) and told that they were to be deported at once . They were given TIME to pack essentials , and each was allowed to take QUANTITY of luggage . They marched QUANTITY to the station and were loaded onto open goods wagons . As the journey went on , many people were robbed of their last belongings . There were repeated body - searches , and NORP were ordered by loudspeaker to hand over valuables , such as savings books , and threatened with severe punishment if they failed to comply . The applicant 's father and his family eventually succeeded in reaching the Western occupation zone . The applicant has still not been allowed to return to his family home and has been refused restitution .","On DATE , following an order for NORP to leave PERSON and report in PERSON , the applicant and other members of his family fled their home . They stopped in PERSON ( at present ORG ) , where all the roads were blocked , and they could proceed no further . ORG soldiers suddenly turned up and were on the point of shooting the applicant \u2013 even old people and children had been killed simply because they were NORP \u2013 but a PERSON stepped in to protect him . All their belongings were taken , but the family escaped alive .","On DATE the NORP ordered the family to return to their home , which they reached on DATE . The house had been looted . In DATE , NORP militiamen expelled them again , and they were taken to an internment camp at GPE ( at present Damas\u0142awek ) , where the last of their belongings were taken , and where they were seriously maltreated . Eventually , they were forced to leave their homeland . They have still not been allowed to return to their home and have been refused restitution .","The applicant 's grandmother PERSON wished to stay on the family farm in PERSON ( at present Rzeck ) , but the applicant , his mother and his sister had left by ship in DATE before ORG arrived . The grandmother was shot on the farm shortly afterwards by ORG soldiers .","Since the end of the war the applicant and other members of his family have not been allowed to return to their home and have been refused restitution .","In DATE the applicant 's father and his family were driven at gunpoint from their house and market garden in Bad Charlottenbrunn ( at present PERSON ) in LOC . NORP militiamen told them that they had to be in the street and ready to leave within TIME . They marched with others under police escort to the railway station , QUANTITY away , and various pieces of their luggage were stolen on the way . They were taken in goods wagons to the district town , GPE ( at present Wa\u0142brzych ) , where they were again searched and lost more of their belongings . They were taken towards the ORG crossing and from there to the NORP occupation zone . The applicant has still not been allowed to return to his home and restitution has been refused .","The applicant submits that his parents ' names had been entered in the PERSON ( at present GPE in GPE ) property register as CARDINAL - share owners of CARDINAL houses . They lived in , and did not flee , their home in GPE ( at present GPE , in GPE ) when the war ended . The applicant has never been able to find out what happened to his mother when ORG entered GPE . She was probably sentenced to forced labour and died in DATE . The applicant has still not been allowed to return to his property and restitution has been refused .","NORP In DATE the applicant 's grandparents still lived on their farm in LOC ( at present PERSON ) , in an area already occupied by NORP troops . TIME , anti - aircraft batteries opened up in the area and the grandparents were ordered to start moving east . They packed essentials and secretly headed west , in the hope of joining other members of the family , following the NORP army as it retreated . When the war ended on DATE , they returned to PERSON ( at present PERSON ) , where their house was the only one not yet looted . At DATE , given the time to pack only the barest of essentials , they were taken away . Those who wanted to stay were arrested or immediately shot . After stopping in various places on the way , they eventually reached the West , getting as far as the GPE .","The applicant has still not been allowed to return to her lost homeland and has been refused restitution .","On DATE the applicant and his parents fled their property in GPE with other landowners to escape the approaching ORG . They reached PERSON in GPE on DATE . The applicant has still not been allowed to return to his home and has been refused restitution .","Until DATE War , the applicant 's mother lived on her farm in ORG ( at present PERSON ) in the region of the former GPE of PERSON . On DATE she was ordered to leave . She fled with carts , heading west , eventually reaching PERSON , in the GPE district , in DATE . The applicant has still not been allowed to return to her family home and restitution has been refused .","NORP The applicant and her family were forced to leave their home in FAC ( at present GPE ) to escape the advancing ORG in DATE . They fled , eventually reaching GPE . They headed further west , and were overtaken by NORP troops in GPE . They have still not been allowed to return to their home and have been refused restitution .","On DATE , the applicant 's father and his family were forced to leave their QUANTITY farm in PERSON ( at present ORG ) . The applicant has still not been allowed to return to her home area , and has been refused restitution .","The applicant submits that his family were among those NORP who had not been deported by the NORP but were expelled by the NORP from areas east of the PERSON on DATE . They were allowed to take only bare essentials with them . The applicant 's uncle ( later declared dead on DATE ) was not in GPE ( at present PERSON ) at the time , and his wife had died there on DATE . They did not experience the expulsion \u2013 unlike the applicant and his surviving relatives , who have so far been refused rehabilitation and restitution .","The applicant 's great - aunt and her family survived the heavy air raid on PERSON ( at present \u015awinouj\u015bcie ) , which took place on DATE , and were also left unharmed when ORG arrived on DATE . On DATE GPE took over PERSON and NORP civilians started to attack and rob NORP . In DATE the NORP militia ordered the applicant and his mother to leave , taking only the barest personal essentials with them . The applicant 's great - aunt and grandmother were at first unwilling to leave , but the threat of violence left them no choice and they eventually reached PERSON in DATE . The applicant and his mother had already fled to PERSON in DATE .","All members of his family have consistently been refused rehabilitation and restitution .","On DATE the applicant and her parents fled their home village PERSON ( at present PERSON ) in GPE ( at present LOC ) . They reached the ORG ( at present GPE in GPE , but could get no further , since all the roads were blocked by refugees . They decided to return to the lodgings they had found in the ORG district , where they saw NORP civilians murdered when ORG arrived . CARDINAL of the victims was the applicant 's father , who was shot in DATE .","In DATE , the applicant and her mother set off for their home village of PERSON , to see if their farm was still there , but the NORP who were already in possession of it immediately reported their arrival to the NORP authorities in Treuburg . Threatened with shooting and unable to reclaim their farm , their only choice was again to flee .","The family have been refused rehabilitation and restitution .","On DATE the applicant and his parents fled their home in PERSON ( at present PERSON ) , escaping the advancing ORG , first to GPE ( at present PERSON ) and then , at DATE , to PERSON . When ORG entered on CARDINAL or DATE all refugees were ordered back to their homes . At DATE , the family set out on foot , with a handcart , for their home in ORG . The parents ' houses were still occupied by NORP troops and the refugees were housed by relatives . At DATE they were expelled from GPE , and taken by goods train via Bischoffsstein ( at present Bisztynek ) to GPE , losing various belongings to thieves on the way . They eventually arrived at GPE in GPE on DATE .","The applicant , like his deceased relatives , has been refused rehabilitation and restitution .","Preu\u00dfische Treuhand was founded in DATE as a self - help organisation of \u201c displaced persons from private NORP properties in the expulsion territories \u201d . It seeks to secure and execute the restitution of the confiscated properties of NORP expelled from territories which after the Second World War became parts of various eastern LOC , including GPE . FAC proclaims that it represents and promotes the ownership rights of single individuals and asserts them legally and commercially .","The Yalta Conference , which was held by the ORG leaders , PERSON , PERSON and PERSON , from CARDINAL to CARDINAL DATE , was devoted to the final strategy of the Second World War and the proposed future occupation of GPE . It was agreed that the new border between GPE and GPE would be drawn along the PERSON line , which meant that part of GPE 's eastern border was to be fixed along LOC , whose central course formed part of that line , and that the NORP eastern provinces ( at present , parts of GPE , GPE and GPE ) were to be annexed to GPE ( see also paragraph CARDINAL above ) . GPE was to be granted territorial compensation in the west . PERSON proposed the PERSON - Neisse line as a new NORP border but the matter was eventually left for decision at the further conference , which was held in GPE .","LAW , an agreement on policy for the occupation and reconstruction of GPE after the Second World War and the NORP surrender of CARDINAL DATE , adopted by ORG of GPE ) , GPE ( GPE ) and ORG ( GPE ) ( \u201c the CARDINAL Powers \u201d ) , set out , among other things , the principles governing war reparations from GPE ( LAW : \u201c Reparations from GPE \u201d ) , the delimitation of the border with GPE ( Chapter VIII B : \u201c Western frontier of GPE \u201d ) and the repatriation of NORP nationals to GPE ( Chapter PERSON : \u201c Orderly transfer of NORP population \u201d ) .","The provisions of the chapter \u201c Reparations from GPE \u201d read , in so far as relevant , as follows :","\u201c CARDINAL . Reparation claims of the GPE shall be met by removals from the zone of GPE occupied by the GPE and from appropriate external NORP assets .","NORP The GPE undertakes to settle the reparation claims of GPE from its own share of reparations . \u201d","The sub - chapter \u201c Western frontier of GPE \u201d reads , in so far as relevant , as follows :","\u201c The CARDINAL heads of Government agree that , pending the final determination of GPE 's western frontier , the former NORP territories east of a line running from LOC immediately west of PERSON , and thence along LOC to the confluence of LOC and along LOC to the NORP frontier , including that portion of GPE not placed under the administration of ORG in accordance with the understanding reached at this conference and including the area of the former GPE of PERSON , shall be under the administration of the NORP State and for such purposes should not be considered as part of the NORP zone of occupation in GPE . \u201d","The chapter \u201c Orderly transfer of NORP populations \u201d reads , in so far as relevant , as follows :","\u201c ORG , having considered the question in all its aspects , recognise that the transfer to GPE of NORP populations , or elements thereof , remaining in GPE , GPE and GPE , will have to be undertaken . They agree that any transfers that take place should be effected in an orderly and humane manner .","Since the influx of a large number of NORP into GPE would increase the burden already resting on the occupying authorities , they consider that ORG in GPE should in the first instance examine the problem , with special regard to the question of the equitable distribution of these NORP among the several zones of occupation . They are accordingly instructing their respective representatives on ORG to report to their ORG as soon as possible the extent to which such persons have already entered GPE from GPE , GPE and GPE , to submit an estimate of the time and rate at which further transfers could be carried out having regard to the present situation in GPE .","ORG , ORG and ORG in GPE are at the same time being informed of the above and are being requested meanwhile to suspend further expulsions pending an examination by the ORG concerned of the report from their representatives on ORG . \u201d","The issue of war reparations for GPE , which in accordance with LAW were to be settled by GPE from its share ( see paragraph CARDINAL above ) , was resolved by a bilateral treaty between the GPE and GPE , namely the Agreement of DATE between ORG and the government of the GPE on compensation for financial losses sustained during the NORP occupation ( umowa mi\u0119dzy PERSON RP a ORG o wynagrodzeniu szk\u00f3d finansowych wyrz\u0105dzonych przez okupacj\u0119 niemieck\u0105 ) . Under the terms of the agreement , the GPE relinquished to GPE all its claims to NORP assets located on NORP territory , including the portion of NORP territory east of the PERSON - Neisse line that was to be assigned to GPE . It was assumed that this treaty constituted an instrument for the implementation of LAW and a basis for GPE 's takeover of NORP property located in GPE within the borders as fixed by that Agreement .","The so - called \u201c Treaty of PERSON , that is , the Agreement concerning the demarcation of the established and the existing NORP ORG frontier , was signed by the heads of government of NORP People 's Republic and GPE ( \u201c the former GPE \u201d ) in GPE ( in NORP , PERSON ) on DATE . It recognised and acknowledged the PERSON - Neisse line as referred to in LAW as the border between GPE and the former GPE . The treaty , although considered valid and binding by GPE , was not accepted by the authorities of the former GPE ( \u201c the former FRG \u201d ) .","The LAW between the German Democratic Republic and the Polish People 's Republic on the Delimitation of LOC in LOC , concluded on CARDINAL DATE , was a subsequent instrument aimed at the implementation of the provisions of the Treaty of Zgorzelec concerning the NORP state border . It concerned the delimitation of the territorial sea , the continental shelf and the fishery zones of both GPE .","The Agreement between the Polish GPE and GPE concerning the basis for normalisation of their mutual relations , also called LAW ( in NORP , PERSON ) , was an agreement concluded by the former ORG and GPE on DATE . It was ratified by the ORG 's ORG ( GPE ) on CARDINAL DATE . Under the terms of that LAW , the parties committed themselves to non - violence , affirming that any disputes between them were to be resolved by peaceful means , that they would refrain from the use , or the threat , of force and that they would take steps aimed at full normalisation and further development of their mutual relations .","LAW read :","\u201c ( CARDINAL ) GPE and GPE state in mutual agreement that the existing boundary line , the course of which is laid down in LAW of the decisions of ORG of DATE as running from LOC immediately west of PERSON , and thence along LOC to the confluence of LOC and along LOC to the NORP frontier , shall constitute the western ORG frontier of NORP People 's Republic .","( CARDINAL ) They reaffirm the inviolability of their existing frontiers now and in the future and undertake to respect each other 's territorial integrity without restriction .","( CARDINAL ) They declare that they have no territorial claims whatsoever against each other and that they will not assert such claims in the future . \u201d","After NORP reunification by virtue of LAW ( Einigungsvertrag ) of DATE , the frontier between GPE and GPE , as established under LAW and endorsed by further treaties with former separate GPE , was confirmed by LAW DATE in the following way :","\u201c The Contracting Parties reaffirm the frontier between them , whose course is defined in the Agreement between GPE and GPE concerning the demarcation of the established and existing NORP ORG frontier of CARDINAL DATE and agreements concluded with a view to implementing and supplementing ORG confirming the demarcation of the ORG frontier between GPE and GPE of DATE ; Agreement between the Polish People 's Republic and the GPE regarding the delimitation of the sea areas in LOC of CARDINAL DATE , as well as the LAW between the Polish People 's Republic and GPE concerning the basis for normalisation of their mutual relations of DATE ) . \u201d","\u201c The Contracting Parties declare that the frontier between them is inviolable DATE and in future and mutually pledge to respect unconditionally their sovereignty and territorial integrity . \u201d","\u201c The Contracting Parties declare that they have no territorial claims against each other and they shall not put forward such claims in future . \u201d","Under LAW , any movable or immovable property which in connection with the war that began on DATE was not in the possession of its owners or their legal heirs or representatives was considered abandoned property . Section CARDINAL stated that any movable or immovable property which had been owned or possessed by the NORP ORG and on the date of the entry into force of LAW had not yet been taken over by the NORP authorities , as well as property of NORP citizens or persons who had defected , was considered \u201c derelict property \u201d for the purposes of that LAW . Under LAW , all abandoned or derelict property was placed under ORG administration . In contrast to NORP \u2013 \u201c derelict \u201d \u2013 property , abandoned property could be repossessed by the owners or their close relatives on application .","The DATE Decree replaced LAW . It entered into force on DATE and was repealed on DATE .","As regards the CARDINAL types of property referred to therein , \u201c abandoned \u201d covered mostly property owned by NORP in GPE , possession of which they had lost in consequence of the war and the Holocaust , whereas \u201c post - NORP \u201d covered property owned by ORG and NORP natural and legal persons .","\u201c Abandoned property \u201d was defined by LAW . This provision read , in so far as relevant , as follows :","\u201c CARDINAL(CARDINAL ) . Any property ( movable or immovable ) of persons who in connection with the war that began on DATE lost and did not subsequently recover possession of it shall be considered abandoned property within the meaning of this Decree . \u201d","Under sections CARDINAL et seq . , owners of abandoned property could apply for , and obtain , its restoration . The deadline for making such applications was set at DATE . The ORG acquired ownership of such property by prescription within DATE ( as regards movables ) and DATE ( as regards immovable property ) , which started running \u201c at the end of the calendar year in which the war ended \u201d .","Pursuant to section CARDINAL , \u201c post - NORP \u201d property was to be taken over by the ORG and neither compensation nor restoration procedures applied . LAW read , in so far as relevant , as follows :","\u201c CARDINAL(CARDINAL ) . By virtue of the law , any of the following kinds of property shall , in its entirety , be taken over by ORG :","( a ) belonging to ORG and the former GPE of Gda\u0144sk ;","( b ) belonging to citizens of ORG and the former GPE of Gda\u0144sk ;","( c ) belonging to NORP and Gda\u0144sk legal persons , except public - law legal persons ;","( d ) belonging to companies controlled by NORP or ORG citizens or by the NORP or PERSON administration ;","( e ) belonging to persons who have defected .","CARDINAL ) The preceding provision shall not apply to the necessary personal items belonging to the persons referred to in subsections ( a ) and ( b ) . \u201d","The September CARDINAL Decree entered into force on DATE and , although amended on several occasions , has not yet been repealed .","Pursuant to section CARDINAL , all agricultural and forest land ( the latter if its surface exceeded QUANTITY ) , except for land already owned by natural persons , was designated for securing a pool of property for NORP citizens who moved there within the framework of the \u201c settlement action \u201d carried out by the authorities . The action concerned mostly persons resettled from the former eastern provinces of GPE beyond LOC , taken over by GPE ( see paragraph CARDINAL above ) .","This was the final decree on the expropriation of property of NORP persons . Its purpose was to secure the definite takeover of property which might not have been covered by the previous expropriation laws ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-117616","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2013,"docname":"CASE OF VRABEC AND OTHERS v. SLOVAKIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["In DATE the ORG authorities took CARDINAL hectares of land from a relative of the applicants . No compensation was paid to the owner .","The applicants unsuccessfully claimed restitution of the land under PERSON no . CARDINAL\/CARDINAL . In particular , in a judgment of DATE ORG held , in a review of the decisions made at lower levels of jurisdiction , that the land had been formally transferred to the ORG pursuant to LAW . LAW no . CARDINAL\/CARDINAL did not include such a situation as grounds for restitution of property . The applicants could have claimed restitution of the land earlier , under PERSON no . CARDINAL\/CARDINAL , but they had not done so .","On DATE the applicants lodged a complaint with ORG . They alleged a breach of LAW , and also of their constitutional right to own property .","NORP In particular , the applicants argued that the land had been expropriated without compensation . It was therefore liable to restitution under section MONEY ) and ( n ) of PERSON no . CARDINAL\/CARDINAL , irrespective of the fact that that law contained no reference to LAW . They referred to ORG judgment QUANTITY CARDINAL\/CARDINAL of DATE , which found that a situation similar to that of the applicants fell under PERSON no . MONEY .","On DATE ORG dismissed the complaint ( decision III . \u00daS CARDINAL\/CARDINAL ) . It held that ORG had given sufficient reasons for its judgment , which was neither arbitrary nor otherwise contrary to the constitutional principles . It was not for ORG to review the way in which ordinary courts interpreted and applied the law unless it resulted in a breach of LAW .","The decision was served on DATE .","Law no CARDINAL\/CARDINAL governs restitution of agricultural land and forests .","Cases in which land is to be restored to owners or their successors are listed in section CARDINAL . In particular , sub - section CARDINAL(m ) of section CARDINAL refers to situations where land has been expropriated without compensation . Subsection PERSON ) refers to nationalisation contrary to the legal rules then in force or without compensation .","In its judgment CARDINAL CARDINAL\/CARDINAL of DATE ORG held that transfer of property under LAW without compensation was to be qualified as a reason for restitution of such property under section CARDINAL(CARDINAL)(m ) of LAW . CARDINAL\/CARDINAL . Any other interpretation of that provision would run contrary to LAW .","The same conclusion was reached in judgment CARDINAL S\u017eo CARDINAL of DATE as rectified by the decision under the same file number of CARDINAL DATE .","In an unspecified number of other decisions ORG expressed a different view on the matter , namely the same as expressed in the above judgment on the applicant \u2019s case of DATE .","In judgment PERSON . \u00daS CARDINAL\/CARDINAL of DATE ORG found , with reference to ORG judgments QUANTITY CARDINAL\/CARDINAL of DATE and CARDINAL S\u017eo CARDINAL\/CARDINAL of DATE ( see paragraphs CARDINAL and CARDINAL above ) , that the varying practice on the part of ORG when determining whether expropriation of land under Ordinance CARDINAL\/CARDINAL fell under PERSON no . MONEY ran contrary to the principle of legal certainty . That in itself justified the conclusion that the plaintiff \u2019s constitutional rights had been breached .","In the same judgment the Constitutional Court further found that ORG view , that land expropriated under Ordinance CARDINAL\/CARDINAL could not be restored under PERSON no . MONEY , was formalistic and contrary to the purpose of that PERSON . The explanatory report to PERSON no . CARDINAL\/CARDINAL specified that it extended to individuals who could have , but had not , submitted their claim within time - limits set in different pieces of legislation which had been enacted previously .","The Constitutional Court quashed ORG judgment in issue and returned the case to the latter .","Subsequently , similar views and conclusions were reached in other judgments of ORG . \u00daS CARDINAL\/CARDINAL , III . \u00daS CARDINAL or I. \u00daS CARDINAL\/CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78726","languageisocode":"ENG","respondent":"LTU","branch":"ADMISSIBILITY","date":2006,"docname":"SCIUKINA v. LITHUANIA","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant \u2019s dog , a pit - bull terrier , attacked an DATE child , severely biting and injuring him . The prosecution instituted criminal proceedings under LAW ( causing medium bodily harm by negligence ) , which were subsequently discontinued , as no evidence of a crime was disclosed .","Nevertheless , in its decision of DATE , the police found the applicant guilty of an administrative offence . The decision stated that the applicant \u2019s dog had bitten the child , and thus the applicant was liable under LAW ( a breach of the pet - keeping rules , causing an injury ) . She was fined LTL CARDINAL ( about LAW ) . The applicant did not dispute that decision , and paid the fine .","On DATE the prosecution re - opened the criminal proceedings against the applicant .","On DATE a fresh medical expert examination confirmed the seriousness of the injuries caused to the boy , finding that he would need plastic surgery .","On DATE the applicant was charged with causing medium bodily harm by negligence ( Article CARDINAL of LAW ) and remanded on bail , with a written obligation not to leave her place of residence . The applicant did not appeal against this restriction .","On DATE ORG acquitted the applicant . It was established that the applicant was not guilty of a criminal offence but rather of an administrative violation for which she had already been punished .","On DATE ORG reversed this judgment , finding the applicant guilty . The appellate court noted the gravity of the injuries sustained by the boy ( bite wounds on his nose , forehead , cheeks , arm and leg ) . The court also found that the applicant \u2019s behaviour had been negligent , in that she had walked her dog without a muzzle , although the animal was of a dangerous breed . In view of these factors , the court concluded that the applicant \u2019s acts must attract criminal rather than administrative responsibility . The applicant was sentenced to CARDINAL months\u2019 imprisonment , but the sentence was rescinded by virtue of an amnesty act . The applicant lodged a cassation appeal .","On DATE ORG upheld the applicant \u2019s conviction . It established that the applicant had been criminally liable for having caused medium bodily harm by negligence .","ORG noted that in cases where the same acts attracted both criminal and administrative liability , the nature of the offence was a criterion determining which procedure ought to be applied . In particular , if the nature of the act made it punishable under the criminal law , the person should be held liable under criminal law . If the nature of the offence was not such as to attract criminal liability , a person would be held liable under the administrative law . ORG went on to say :","\u201c It was established that the applicant had caused medium bodily harm by negligence , therefore , she has been rightly convicted under LAW .","The fact that [ the applicant ] has been punished for the same acts by way of an administrative procedure is not a valid ground to discontinue the criminal proceedings , since such a ground is not foreseen by LAW . However , a person can not be punished twice for the same offence , because it is contrary to LAW . Since [ the applicant ] has been reasonably convicted under LAW , the issue of the lawfulness of the administrative decision to fine [ the applicant ] can be reconsidered in accordance with LAW ] . \u201d","LAW states as follows :","\u201c ... Punishment may be imposed or applied on the grounds established by law . No one may be punished for the same criminal offence twice . ... \u201d","ORG Article CARDINAL of LAW ( as then in force ) stipulated :","\u201c A person shall be held liable only when the act committed is forbidden by a criminal statute which came into force before the commission of the offence ...","No one shall be punished for the same criminal act twice ... \u201d","The then LAW provided for criminal liability for causing serious or medium bodily harm by negligence .","LAW ( as then in force ) provided :","\u201c Any person who breaches pet - keeping rules - approved by ORG - shall be punished by a warning or fine of CARDINAL litai . The same act , committed repeatedly or when causing damage to the health or property of others - shall be punished by a fine CARDINAL litai . \u201d","The then LAW provided for a right of appeal against a decision to impose an administrative penalty .","The then LAW stipulated :","","\u201c Where a decision finding a person liable for an administrative offence has been quashed , the [ fine ] paid shall be reimbursed ... and other restrictions relating to the [ administrative penalty ] shall be repealed . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79109","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF CHITAYEV v. RUSSIA","importance":2,"conclusion":"Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment;Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award","judges":"Christos Rozakis","text":["The applicants are brothers , born in DATE and DATE respectively . It appears that the first applicant currently resides in GPE , and the second applicant lives in GPE , GPE .","The facts of the case , particularly those surrounding the period of the applicants ' detention in custody , are partially in dispute between the parties .","The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL - CARDINAL ) . The ORG 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL - DATE ) . The documentary evidence submitted by the parties is summarised in Section D below ( paragraphs CARDINAL - CARDINAL ) .","Prior to the events described below , the first applicant , an engineer by profession , lived with his wife and CARDINAL children in PERSON , a suburb of Grozny . The second applicant , a school teacher by profession , lived in GPE and moved to GPE in DATE with his wife and CARDINAL children .","NORP In DATE hostilities started in GPE between the NORP armed forces and NORP rebel fighters . The city of PERSON and its suburbs formed the target of wide - scale attacks by the NORP military . In DATE a housing agency in ORG certified the destruction of the first applicant 's flat as a result of the hostilities .","Fearing the attacks , the applicants moved their families and valuables to their parent 's house ( hereinafter \u201c the house of the PERSON family \u201d ) at CARDINAL Matrosov Street in the town of ORG . According to the applicants , the items of their property stored in the house had included the first applicant 's tape - recorder , a hi - fi system , a video camera and the second applicant 's TV set and a video player . Other items of electronics and clothing were also stored in the house . The documents and purchase receipts in respect of the valuables were kept separately in a suitcase . Most items were stored in CARDINAL of the rooms of the house and in the cellar .","On DATE officers from ORG of ORG ( \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u044b\u0439 \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u043e\u0442\u0434\u0435\u043b \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b \u0410\u0447\u0445\u043e\u0439-\u041c\u0430\u0440\u0442\u0430\u043d\u043e\u0432\u0441\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0430 \u2013 \u201c PERSON \u201d ) searched the house at CARDINAL FAC for firearms . According to the applicants , the search was not officially authorised or documented . The officers took with them a new packaged cordless telephone set with batteries and an antenna .","On DATE the second applicant complained to the head of ORG that the search had been unlawful and asked for the telephone set to be returned . It appears that at DATE , after the applicants ' father had submitted a request to the district military prosecutor , the telephone set was returned .","On DATE at CARDINAL TIME several officers of ORG again arrived at the house at CARDINAL FAC . The applicants and their families were at home at TIME . The officers searched the house , without producing any warrants or official justification for their action . They seized several items of electronic equipment belonging to the applicants , documents for equipment and personal documents of some of the family members . The officers then asked the applicants to come with them to ORG for TIME to help them to deal with paperwork .","According to the applicants , once they got into the car , the officers told them that they were under arrest and started to beat them . The applicants were taken to ORG and put into separate cells .","On DATE , at TIME , the applicants ' house was again searched . CARDINAL servicemen in CARDINAL cars had arrived at the house and taken away all the electronic equipment found in the house , including a printer , TV sets and video equipment . No official justification for the search and seizure had been presented . The applicants submitted a list of items seized at their house ( see paragraph CARDINAL below ) .","DATE the applicants were detained in FAC . While in custody they were questioned about the activities of the NORP rebel fighters and about kidnappings for ransom , but denied their involvement in any crimes .","During the detention and interrogations , which took place in a cell situated on the third floor of ORG premises , the applicants were subjected to various forms of torture and ill - treatment . In particular , they were fettered to a chair and beaten ; electric shocks were applied to various parts of their bodies , including their fingertips and ears ; they were forced to stand for a long time in a stretched position , with their feet and hands spread wide apart ; their arms were twisted ; they were beaten with rubber truncheons and with plastic bottles filled with water ; they were strangled with adhesive tape , with a cellophane bag and a gas mask ; dogs were set on them ; parts of their skin were torn away with pliers .","The first applicant was interrogated on DATE of detention and told to sign a confession . When he refused , the interrogators fettered him to a chair and kicked him . They put a gas mask on his face and released cigarette smoke into it . The first applicant lost consciousness and was brought back to his cell . The following day he was again taken for questioning to the same room . Wires were applied to his fingertips and the interrogators turned the handle of a device , which they called a \u201c lie detector \u201d , and which gave the first applicant electric shocks .","The second applicant was also interrogated on DATE of detention . He was brought to a room in which there were CARDINAL officers , who told him to confess that he had been a rebel fighter and that he had been involved in kidnappings . When the second applicant refused to sign a confession , he was placed against the wall , handcuffed , and his mouth was covered with adhesive tape . CARDINAL of the interrogators started beating him on his back and genitals , while the other held a machine - gun and threatened to shoot him if he moved . The second applicant was beaten for TIME and then taken back to his cell .","On several occasions during the detention the personnel of ORG came into the cells and beat all inmates , including the applicants .","There were no toilets in the cells , and the detainees were taken out to the toilets one by CARDINAL . They were forced to run all the way to the toilets and if they were slow , they were beaten with rifle butts and chased with dogs . In the toilets they were not allowed enough time . Sometimes they were not allowed to go to the toilets and had to urinate and defecate in the corridor in full view of the guards .","NORP The cells were unheated and damp and the applicants were constantly suffering from cold .","According to the applicants , on DATE they and some other detainees were taken out of ORG , blindfolded and put into a vehicle . The guards told them that they were going to execute them . Instead , the detainees , including the applicants , were transferred to another detention centre . Later they found out that the place was the GPE detention centre ( \u0441\u043b\u0435\u0434\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u0439 \u0438\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u0441. LAW \u201c the GPE SIZO \u201d ) . The detainees , including the applicants , were forced out of the vehicle , ordered to prostrate themselves and beaten . They were then taken to cells .","The applicants were not subjected to a medical examination upon their admission to GPE , as prescribed by the relevant legislation .","At the beginning of their detention in GPE , the applicants were questioned DATE and later about once a week . They were forced to run to the interrogation room with their heads lowered and their hands across their heads , while the guards beat them on their backs . There was an iron table , a chair and a hook on the wall in the interrogation room . The interrogators , who never drew up any transcripts of interrogations , put pressure on the applicants to force them to confess or simply beat them . The interrogators also kicked the applicants with boots , rifle butts and mallets on different parts of their bodies , in particular their knee caps , threatened the applicants with a knife pressed against their fingers , put tarpaulin gauntlets on the applicants and then tied their hands to the hook and beat them , squashed the applicants ' fingers and toes with mallets or a door of a safe , tied the applicants ' hands and feet together behind their backs ( \u201c swallow \u201d position ) , strangled the applicants with adhesive tape or a cellophane bag , and applied electric shocks to the applicants ' fingers .","The applicants were also beaten by the guards when they were taken out of their cells for TIME exercise \u201d .","The applicants ' lawyer , Mr PERSON , was only given access to them once during the entire period of their detention in GPE , namely at some point in DATE . The applicants were allowed to meet with him CARDINAL by CARDINAL , in the presence of a police officer . They were required to speak NORP during the meeting and the lawyer could only ask them how they were doing .","During their detention in the PERSON the applicants were kept in separate cells , except for DATE in DATE , which they spent in the same cell .","The second applicant spent DATE in cell no . TIME and a CARDINAL in cell no . CARDINAL . For the remainder of his detention the second applicant was in cell no . CARDINAL . That latter cell was designated for CARDINAL people , whilst CARDINAL inmates were detained in it . The second applicant had to sleep on the floor on a mattress which was given to him .","According to the applicants , the conditions of their detention improved in DATE after the guards had been replaced by a new shift and after the representatives of ORG ( \u201c the ICRC \u201d ) had visited the PERSON on DATE . The second applicant managed to talk to the representatives of the ICRC personally , in a confidential meeting , because he spoke LANGUAGE .","There were CARDINAL more visits by the representatives of the ICRC in DATE . Those visits enabled the applicants to exchange messages with their families . In DATE the ICRC office in GPE , Kabardino - Balkaria , issued the applicants with certificates confirming that they had been visited by the LAW in GPE on DATE , CARDINAL DATE and CARDINAL August DATE .","On DATE the applicants were brought back to ORG and informed that they had been charged with kidnapping and participation in an unlawful armed group under ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW . According to the applicants , it was the first time that they had been officially informed of the charges against them .","On DATE the applicants were released from detention subject to a written undertaking not to leave their place of residence .","On DATE the applicants were brought by their relatives to ORG hospital . They were examined by a general practitioner , a neuropathologist and a surgeon . The first applicant was diagnosed with repeated craniocerebral traumas , resulting in intracranial hypertension and post - traumatic stress disorder , chronic bronchitis , chronic CARDINAL - sided pyelonephritis , asthenoneurotic syndrome , hypochromic anaemia , numerous blunt injuries to the head , body and extremities , and chronic pneumonia in the left lung . The second applicant was diagnosed with repeated craniocerebral traumas , resulting in intracranial hypertension and posttraumatic stress disorder , numerous blunt injuries to the head , body and extremities and a trauma of the left knee - cap , chronic pneumonia in the left lung and chronic left - sided pyelonephritis . The doctors noted down that the traumas and other medical conditions had apparently been sustained in the PERSON DATE .","In letters of CARDINAL October CARDINAL the prosecutor 's office of ORG ( \u0410\u0447\u0445\u043e\u0439-\u041c\u0430\u0440\u0442\u0430\u043d\u043e\u0432\u0441\u043a\u0430\u044f \u0440\u0430\u0439\u043e\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u2013 \u201c the district prosecutor 's office \u201d ) informed the applicants that criminal proceedings in case no . DATE opened against them under ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW had been discontinued on DATE , as their involvement in the imputed offences had not been proven . The letters stated that the applicants had been relieved of their obligation not to leave their place of residence and that they could appeal against the decision of CARDINAL DATE to a superior prosecutor or to a court within DATE .","From DATE the applicants ' relatives , both orally and in writing , applied repeatedly to various official bodies concerning the searches in their house and seizure of their property , as well as the applicants ' arrest on DATE and their subsequent detention . After the applicants had been released , they joined their relatives in these efforts . They were supported by human rights NGOs . These attempts yielded little result . On several occasions , the applicants ' family members received copies of letters from various authorities directing their complaints to the district prosecutor 's office , ORG or the prosecutor 's office of GPE ( \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 PERSON DATE \u201c the NORP prosecutor 's office \u201d ) .","On TIME DATE the applicants ' relatives went to ORG and enquired about the applicants ' whereabouts . They were informed that the ORG brothers had been asked to help with paperwork and would soon return home . The applicants did not return DATE .","On DATE the applicants ' father went to ORG to find out where his sons were . The officials informed him that the brothers had been detained on suspicion of having kidnapped NORP soldiers for ransom . The suspicion was allegedly based on military uniformed overcoats found in the house . The applicants ' father replied that these were old - style NORP military overcoats , no longer used in the army , that his sons had brought them home after their service in the NORP army and that he had used them for various household needs .","On DATE ORG , acting on behalf of the PERSON family , requested the Special Representative of the NORP President for Rights and Freedoms in GPE ( ORG \u043f\u0440\u0435\u0434\u0441\u0442\u0430\u0432\u0438\u0442\u0435\u043b\u044c ORG \u043f\u043e \u0441\u043e\u0431\u043b\u044e\u0434\u0435\u043d\u0438\u044e \u043f\u0440\u0430\u0432 \u0438 \u0441\u0432\u043e\u0431\u043e\u0434 \u0447\u0435\u043b\u043e\u0432\u0435\u043a\u0430 PERSON ) to clarify the reasons for the applicants ' arrest on DATE and complained that the searches , seizures and arrests had been unlawful .","By letter of CARDINAL DATE ORG replied to an enquiry of a deputy of ORG sent on the applicants ' behalf . The letter stated that criminal proceedings against the applicants had been instituted by the district prosecutor 's office on suspicion of the applicants ' involvement in criminal offences under ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW . It continued that on DATE the case file had been forwarded to ORG of ORG for LOC ( ORG \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 NORP \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u044b PERSON \u2013 \u201c ORG for the LOC \u201d ) to be joined with other cases related to the military actions in GPE and indicated that further information could be obtained from that Office .","On DATE the NORP prosecutor 's office informed the applicants ' brother that the criminal investigation against the applicants was being conducted by ORG for LOC , and that therefore further enquiries should be addressed there .","On DATE the applicants ' father submitted a complaint about the seizure of property to the head of ORG . The latter replied in an undated letter that the items allegedly seized at the house of the PERSON family were not registered as being kept in ORG . The letter further stated that the prosecutor 's office of ORG had instituted criminal proceedings against the applicants , but did not indicate the date on which the proceedings had been commenced . It continued that in the context of those proceedings \u201c an inspection of the scene of the incident \u201d had been carried out in the house of the PERSON family , in accordance with the relevant provision of the national legislation . Furthermore , a report on the results of that \u201c inspection \u201d was kept in the file of the criminal case against the applicants and the items seized during the \u201c inspection \u201d in the house of the ORG family were listed in that report . The letter concluded that the seized property should be kept in the case file and invited the applicants ' father to apply to the NORP prosecutor 's office for any information regarding the proceedings against the applicants .","On DATE the applicants ' brother complained to the Special Representative of the NORP President for Rights and Freedoms in GPE about the applicants ' unlawful detention on DATE as well as the searches and seizures in the house of the PERSON family .","On DATE the deputy head of ORG informed the applicants ' father that the applicants had been detained on DATE [ rather than on DATE , pursuant to LAW of LAW .","On DATE the same officer of ORG informed the applicants ' father that the items seized in his house had been attached to the case file of the criminal investigation , and that the decision regarding the release of those items could only be taken by an official in charge of the investigation , or a competent court .","On DATE the applicants ' father sent a request concerning the lawfulness of the searches and seizures in his house and the applicants ' detention on DATE to the NORP prosecutor 's office .","DATE . On DATE the NORP prosecutor 's office replied to the applicants ' father that the applicants had been arrested in connection with the criminal charges brought against them under ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW , namely kidnapping and participation in an illegal armed group , and that the period of their remand in custody had been extended until DATE by the NORP prosecutor , but did not specify the date of the extension order . The applicants ' father was invited to apply to the district prosecutor 's office for information on the results of the investigation in the applicants ' criminal case .","On DATE the NORP prosecutor 's office informed the applicants ' brother that , following his complaint concerning the unlawfulness of the searches and seizures in the house of the PERSON family , as well as the applicants ' detention , the division of internal security of ORG had commenced an internal inquiry ( \u0441\u043b\u0443\u0436\u0435\u0431\u043d\u0430\u044f \u043f\u0440\u043e\u0432\u0435\u0440\u043a\u0430 ) into the seizure and destruction of \u201c radio equipment and transmitting devices and personal property \u201d belonging to his brothers . The letter further stated that the applicants had been released from detention on DATE subject to an undertaking not to leave their permanent place of residence .","On DATE the applicants ' brother applied to the district prosecutor 's office for information concerning the items seized in their family house in DATE .","On DATE the ORG , acting on the applicants ' behalf , complained to the NORP prosecutor 's office , giving a detailed description of severe ill - treatment of the applicants and the alleged procedural violations during the applicants ' detention in ORG and GPE from DATE until DATE . The letter referred to the medical documents in support of the complaints regarding ill - treatment and requested that criminal proceedings in connection with the applicants ' allegations be instituted . A copy of the letter was forwarded to ORG . The latter replied on DATE that the complaint had been forwarded to the NORP prosecutor 's office .","On DATE the applicants ' brother requested ORG to provide him with an update concerning the internal inquiry into the seizure of the property in DATE . On DATE he filed another request concerning the update on the complaints concerning the property and the arrest and detention of his relatives . No reply was received to any of these requests .","On DATE and on DATE the PERSON again wrote to the NORP prosecutor 's office , referring to their letter of CARDINAL October CARDINAL . On DATE they requested the same information from the district prosecutor 's office .","In DATE all male members of the PERSON family received a summons to appear at the district prosecutor 's office on DATE . The first applicant was outside GPE at that time , but the second applicant and the applicants ' father and brother appeared . They were invited to talk to an investigator of the prosecutor 's office CARDINAL by CARDINAL .","According to the second applicant , the prosecutor of ORG and an investigator of the same office proposed that he should write a statement withdrawing all claims against ORG concerning the lawfulness and conditions of detention . In case of refusal , they threatened to re - open the criminal proceedings against both applicants . The second applicant was allowed to consult his relatives , whereupon he decided to sign the requested statement .","By letter of DATE the investigator of the district prosecutor 's office replied to the PERSON that following the examination of their complaint , the prosecutor 's office had decided to dispense with criminal proceedings . The letter did not state the reasons for that decision , but informed the PERSON of the possibility of appealing against it to superior prosecutors or to a court . A copy of the decision of DATE was not enclosed .","On DATE the PERSON challenged the decision of DATE before the NORP prosecutor . They enclosed a copy of their complaint of DATE , referred to the pressure put on the second applicant to repudiate his statements concerning the ill - treatment and reiterated their request that a criminal investigation into the applicants ' allegations of ill - treatment in ORG and GPE be opened .","In a letter of DATE the acting prosecutor of ORG informed the PERSON that the district prosecutor 's office had studied the complaint concerning \u201c illicit methods of investigation \u201d applied to the applicants and decided not to open criminal proceedings in the absence of evidence of a crime in the actions of the personnel of ORG . The letter further stated that the second applicant had been invited to the district prosecutor 's office where he had confirmed the fact of his detention at FAC and GPE , but had denied that \u201c illicit methods of investigation \u201d had ever been applied to him , whilst the first applicant could not be questioned because he had left GPE . The letter went on to say that no objective information proving the allegations of ill - treatment had been obtained , and that the PERSON had already been informed of the results of the examination of their complaint by letter no . CARDINAL dated DATE .","On DATE the applicants ' brother applied to the NORP prosecutor 's office for information on the developments in the internal inquiry commenced in connection with his complaints about the searches and seizures in their house . It does not appear that any reply from the authorities followed .","On DATE [ erroneously dated DATE ] the NORP prosecutor 's office replied to the PERSON 's complaint of DATE , informing them that an internal inquiry had been carried out in connection with their request that the decision of DATE be quashed . The letter stated that \u201c the decision of the district prosecutor 's office to dispense with criminal proceedings in respect of the applicants ' complaint concerning ill - treatment by the personnel of ORG and PERSON [ during their detention DATE ] was well - founded and lawful and that [ the applicants ' ] complaints were found to be unsubstantiated \u201d .","At some point the PERSON requested the district prosecutor 's office to send them a copy of the decision of DATE concerning the refusal to institute criminal proceedings in connection with the applicants ' allegations of ill - treatment during their detention from DATE until DATE . On DATE the district prosecutor 's office replied that the PERSON had been notified of the results of the examination of their complaint and of their right to appeal and that , according to LAW then in force , the investigator was not obliged to forward a copy of such decision to a person who had sought the institution of proceedings . The reply also stated that the second applicant had been apprised of the document in question .","On DATE officers of ORG carried out a passport check in the town of ORG . During the check in the house at CARDINAL [ rather than CARDINAL ] FAC , the applicants ' father voluntarily surrendered an FT-CARDINAL radio station and accessory equipment , technical documentation in foreign languages for that radio station , a personal military card of serviceman PERSON , who had previously been kidnapped by unidentified persons , a camouflage cloak , a bullet - proof vest and CARDINAL registration plates for cars and tractors . Following the voluntary surrender of the items , a formal note ( \u0430\u043a\u0442 ) was drawn up on DATE , and on DATE an investigator of ORG decided not to open a criminal investigation in this connection .","On the basis of the information obtained during the check of DATE , on DATE the applicants ' house was \u201c inspected \u201d ( \u043e\u0441\u043c\u043e\u0442\u0440 ) by a police officer of ORG , Mr PERSON , in the presence of attesting witnesses . During that \u201c inspection \u201d police officer GPE found CARDINAL military overcoats and QUANTITY military jackets , all bearing numbers and personal details of federal servicemen , details from a radio transmitting device , tapes with recordings of PERSON interview , a video recording of a documentary called ' GPE \u2013 the Day of Freedom ' , photographs of exhumations , photographs of the first applicant armed , a computer and diskettes with information concerning tapping of radio and telephone conversations of the members of ORG in DATE , lists of mobile telephone numbers of the top - ranking officials of GPE and leaders of the illegal armed groups , outlines of eavesdropping transmitters , and other materials that , in the ORG 's submission , \u201c could be indicative of the applicants ' participation in illegal armed groups . \u201d","On DATE the prosecutor 's office of ORG instituted criminal proceedings against the applicants under Articles CARDINAL ( CARDINAL ) ( aggravated kidnapping ) and CARDINAL ( CARDINAL ) ( participation in an illegal armed group ) of LAW on the basis of the results of the check of DATE and the inspection of DATE . The case file was assigned the number DATE and then DATE .","On DATE the applicants were apprehended pursuant to LAW , then in force , and placed in detention in ORG .","On DATE the district prosecutor 's office quashed the decision of CARDINAL DATE on the ground that the investigation into the circumstances of the disclosure of the items during the check on DATE had been incomplete and the materials of that check were included in the file of the criminal proceedings opened against the applicants .","DATE . On DATE the district prosecutor 's office ordered that a preventive measure in the form of custody be taken against the applicants for their suspected involvement in kidnapping and participation in illegal armed groups . These orders were then forwarded for execution to GPE .","On DATE both applicants were formally charged with criminal offences under Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW .","Since DATE Mr PERSON , a member of ORG , had been admitted to the criminal proceedings against the applicants as their defence counsel .","On DATE the applicants were transferred to the Chernokozovo SIZO and underwent a medical examination , as required by relevant legal acts . The first applicant was diagnosed with a head trauma and subsequently received medical assistance in this connection . The examination revealed no other injuries on the applicants . While in detention , the second applicant received medical treatment in respect of chronic gastritis .","On DATE the applicants were released subject to an undertaking not to leave their place of residence .","On DATE the district prosecutor 's office discontinued the criminal proceedings against the applicants with reference to the absence of sufficient evidence proving their involvement in the imputed offences .","On DATE the decision of DATE was set aside by the NORP prosecutor 's office and the criminal proceedings against the applicants were resumed .","On DATE the district prosecutor 's office again discontinued the criminal proceedings against the applicants in view of the fact that the applicants ' involvement in the imputed offences had not been proven .","DATE . On DATE the decision of DATE was quashed by the NORP prosecutor 's office and the case forwarded for additional investigation . It appears that the proceedings are pending at present and that in the context of these proceedings some investigative steps were taken in respect of the second applicant in DATE .","Among a considerable number of other documents , the applicants submitted an undated list of items seized from their house , countersigned by their mother , CARDINAL attesting witnesses and police officer PERSON from ORG . The document listed a ORG TV set , a ORG set , a ORG set , a ORG set , a ORG video recorder , a ORG video recorder , a ORG tape recorder , a Lexmark printer , a \u201c Rus \u201d film projector , a power adapter , a heater with CARDINAL sets of exchangeable details , video and audio tapes , CARDINAL briefcases of documents , and an \u201c LOC \u201d charging device .","They also submitted written eye - witness statements from their father , sister and CARDINAL neighbours confirming the search and seizure of the PERSON ' property as well as the applicants ' apprehension on DATE .","In order to be able to assess the merits of the applicants ' complaints , at the admissibility stage the ORG invited the ORG to submit documents from the file of the criminal investigation opened against the applicants as well as documents from the inquiry into the applicants ' complaints concerning their ill - treatment and lawfulness of their detention , as well as those relating to the searches in the house of the PERSON family and the seizure of their property . The documents submitted by the ORG , both before and after the case was declared partly admissible , may be summarised as follows .","A handwritten document with an illegible title , drawn up on DATE by a police officer of ORG , recorded the seizure of an FT-CARDINAL radio station and accessory equipment , technical documentation for that radio station , a camouflage cloak , a bullet - proof vest , CARDINAL registration plates for cars and tractors and a personal military card of serviceman PERSON It was indicated in the document that a copy of it had been given to the applicants ' father . The document was signed by the police officer who had drawn it up and the applicants ' father . In a report of DATE the same police officer informed his superiors of the seizure of the aforementioned items at the house at CARDINAL FAC in LOC and indicated that they had been surrendered by the applicants ' father .","The Government did not furnish the ORG with any documents concerning the search of DATE .","By a decision of DATE an investigator of the prosecutor 's office of ORG ordered that criminal proceedings against the applicants be instituted under ORG CARDINAL ( CARDINAL ) and CARDINAL of LAW on the basis of the results of the \u201c operative measures \u201d taken in the house of the PERSON family at CARDINAL [ rather than CARDINAL ] FAC in the town of ORG on DATE .","CARDINAL reports issued by an investigator of the district prosecutor 's office in DATE [ the date of issue is illegible ] stated that the applicants had been apprehended on DATE pursuant to LAW . The reports indicated that clear traces of a criminal offence had been found in the applicants ' house , constituting a ground for their apprehension , and stated that it had been necessary to prevent them from absconding or obstructing the establishment of the truth . The reports also indicated that the applicants were suspected of having been involved in kidnappings and of participation in illegal armed groups in DATE , that they had been informed of their rights as suspects and that the prosecutor of ORG had been notified of the applicants ' apprehension on DATE . The reports were signed by the investigator and the applicants .","By CARDINAL decisions of DATE the investigator of the district prosecutor 's office ordered that a measure of restraint in the form of custody be taken against the applicants . The orders referred to the objects seized in the house of the PERSON family on DATE and stated that the applicants were suspected of involvement in kidnappings of NORP servicemen in DATE and that in view of the gravity of the charges and the danger of the applicants ' obstructing the establishment of the truth if at large , the applicants should be detained on remand . The orders also stated that the applicants had been informed about their right to challenge this measure of restraint in a court . They were signed by the investigator and applicants and countersigned by the district prosecutor and sent for execution to the head of GPE .","CARDINAL decisions of DATE issued by the investigator of the district prosecutor 's office ordered that the applicants be formally charged with the kidnappings of NORP servicemen for ransom , and participation in illegal armed groups , in DATE . The decisions stated that the applicants had been notified of the charges against them and that the substance of the charges as well as the procedural rights of the accused had been explained to them . The decisions were signed by the investigator and the applicants , but the signature of the applicants ' defence counsel was missing .","A decision of the district prosecutor 's office dated DATE ordered that the criminal proceedings against the applicants be discontinued . This document outlined in detail the main procedural steps taken in the course of the criminal proceedings against the applicants . It stated , inter alia , that the applicants had been apprehended on DATE , that on DATE their remand in custody had been authorised , that on DATE they had been charged with criminal offences under LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) and that on DATE the period of the applicants ' detention on remand had been extended for DATE and DATE until DATE .","A decision of the NORP prosecutor 's office dated DATE set aside the decision of DATE and ordered that the criminal proceedings against the applicants be resumed and an additional investigation be carried out .","The Government produced a number of certificates ( \u0441\u043f\u0440\u0430\u0432\u043a\u0430 ) issued by the head of the Chernokozovo SIZO on DATE .","The certificates stated that upon the applicants ' arrival at the PERSON no injuries had been found on them . The first applicant had been diagnosed with a craniocerebral injury and , while in detention , he had sought medical assistance on CARDINAL occasions in this connection and had been prescribed certain medication , whilst the second applicant had applied for medical assistance on CARDINAL occasions in connection with influenza and chronic gastritis and had also been prescribed medical treatment .","Another document listed the cells in which the applicants had been detained . The document stated that the first applicant had been kept in cells FAC . CARDINAL ( measuring QUANTITY ) , CARDINAL ( QUANTITY ) , CARDINAL ( QUANTITY ) , CARDINAL ( QUANTITY ) and QUANTITY ) and the second applicant had been detained in cells FAC . CARDINAL ( measuring QUANTITY ) , CARDINAL ( QUANTITY ) , CARDINAL and DATE ( QUANTITY each ) . The document continued that the sanitary conditions in the cells had been in conformity with the relevant requirements , that all cells had been equipped with running water and toilets . The document also stated that the applicants had always been provided with individual sleeping berths and that the number of persons detained together with the applicants had been in accordance with the relevant regulations .","The remaining certificates stated that no physical force or special devices had been used against the applicants DATE and DATE , that the applicants had not sent any letters or complaints during the said period , that the administration of GPE had provided them with relevant legal information and advice , including access to legal documents , and that on DATE they had been attended by their lawyer , Mr PERSON .","A number of letters from various higher courts in GPE stated that during the period DATE no criminal proceedings against the applicants had been pending in the courts of the respective regions of GPE and that the applicants had not complained about unlawful detention or about the actions of the personnel of ORG or GPE .","In a handwritten explanation , given at the prosecutor 's office of ORG on DATE , the second applicant stated that he and the first applicant had been detained and taken into custody in the context of criminal proceedings against them instituted on suspicion of their involvement in kidnappings and participation in illegal armed groups and then released on an undertaking not to leave a specified place of residence and that the criminal proceedings against them had subsequently been discontinued . The second applicant also stated that there had been grounds for their detention , as military overcoats had , indeed , been found in their house , and that there had been no procedural or any other violations of their rights during the detention . He further stated that he had not signed any untrue statements and had no complaints to make against the officers of ORG or PERSON or investigators of the district prosecutor 's office .","On DATE an investigator of the prosecutor 's office of ORG , based on the results of the investigation in connection with a complaint lodged by the PERSON on the applicants ' behalf , decided to dispense with criminal proceedings . The decision stated that on DATE the prosecutor 's office of ORG had opened criminal case no . DATE against the applicants on suspicion of their having committed criminal offences under LAW ) and CARDINAL of LAW . It further stated that :","\u201c The criminal proceedings were instituted as a result of the discovery , during the planned operative measures on DATE , of CARDINAL military overcoats of servicemen of the NORP armed forces ... , a personal military card of serviceman PERSON , documents and tape records with information on [ the applicants ' ] involvement in kidnappings of servicemen and participation in illegal armed groups .","On DATE a police officer of ORG , PERSON , carried out an inspection of the scene of the incident ... which was reflected in a report . The inspection was carried out in the presence of CARDINAL attesting witnesses , the owner of the house and CARDINAL officers of the PERSON . \u201d","The decision further indicated that the applicants had been apprehended pursuant to LAW on DATE , that on DATE their detention on remand had been authorised and that on DATE they had been formally charged with the aforementioned offences and notified of their procedural rights . The decision pointed out that the applicants had waived their right to legal assistance , but they had nevertheless been provided with a lawyer , PERSON PERSON . The decision went on to say that on DATE the applicants had been released subject to a written undertaking not to leave a specified place and that on DATE [ rather than DATE the criminal proceedings against them had been discontinued for lack of evidence of their involvement in the imputed offences . It further stated :","\u201c During the preliminary investigation into the said case no searches were carried out .","There were no procedural violations during the preliminary investigation , which is confirmed by the materials of case no . DATE .","[ The applicants ] did not sign any confessions ... , this fact being confirmed by the absence of any such documents in the file of case no . DATE and [ the second applicant 's ] explanations .","...","There were no procedural or any other violations in respect of [ the applicants ] during the investigation or their detention in ORG or PERSON , which is confirmed by the materials of case no . CARDINAL and [ the second applicant 's ] explanations .","In the light of the above , no evidence of any of the offences prohibited by LAW can be established in the actions of the investigators of the district prosecutor 's office who had been in charge of the investigation in criminal case no . DATE , or in those of the officers of ORG or PERSON . \u201d","The decision thus concluded that the PERSON 's request concerning the institution of criminal proceedings upon the applicants ' complaints should be rejected and ordered that the persons concerned be informed of that decision and notified of their right to challenge it before the prosecutor 's office of ORG or in a court . The decision made no comments as regards the PERSON 's reference to medical documents certifying the applicants ' injuries .","On CARDINAL DATE a prosecutor at the prosecutor 's office of GPE drew up a report \u201c on the results of the internal inquiry into the actions of the officials of the prosecutor 's office of ORG during the examination of the applicants ' complaint about inhuman treatment in ORG and GPE DATE and DATE \u201d . The report stated that the internal inquiry had been carried out in connection with the complaint by the ORG lodged on the applicants ' behalf against the decision of the district prosecutor 's office dated DATE to dispense with criminal proceedings as regards the applicants ' allegations that they had been ill - treated while in detention . The report stated that the internal inquiry had established the following :","\u201c In DATE [ the second applicant ] and his father were invited to the prosecutor 's office of FAC in connection with information about the use of illicit methods of investigation in respect of [ the applicants ] . [ The second applicant ] personally did not complain that any pressure had been put on him to extract any statements . Therefore he voluntarily gave explanations to investigator PERSON . to the effect that no illicit methods of investigation had been applied to him and that he had no claims against law - enforcement bodies .","Neither the investigator nor the prosecutor put any pressure on him to extract this explanation . No threats were made in his respect .... Moreover , he talked to prosecutor A .- K. after he had given his explanations to investigator PERSON .","His father refused to give any explanations . Presently he is undergoing medical treatment outside the territory of the republic . He refused to give any explanations , as he is fed up with all this .","[ The second applicant ] does not know whether [ the first applicant ] has applied to any human rights organisations . At present [ the first applicant ] lives in GPE and [ the second applicant ] has no contact with him .","Apparently , it was his younger brother ... who had met a representative [ of the SRJI ] in GPE and provided the information in question . Thereafter he spoke to [ his younger ] brother and forbad him further from applying to human rights organisations with unverified information .","The investigator of the prosecutor 's office of ORG , PERSON . , who was questioned during the internal inquiry , stated that in DATE he had carried out an investigation into the allegations by the [ representative of the PERSON ] to the effect that the illicit methods of investigation had been applied to [ the applicants ] during their detention in ORG and PERSON . During that investigation he had questioned [ the second applicant ] without putting any psychological or physical pressure on him . ... He had not forced [ the second applicant ] to make any statements , but merely questioned him , and thereafter the latter had read his explanations and signed them . [ The applicants ' father ] had appeared at the prosecutor 's office , along with [ the second applicant ] , given oral explanations and then left the prosecutor 's office and had not replied to further summonses . That investigation had resulted in the refusal to institute criminal proceedings against police officers who had allegedly applied illicit methods of investigation to [ the applicants ] during the latter 's detention [ in the absence of evidence of a crime in their actions ] .","The prosecutor of ORG , ORG , who was questioned during the internal inquiry , had stated that the district prosecutor 's office had investigated the allegations about illicit methods of investigation being used [ against the applicants ] in DATE , with the result that investigator PERSON . had decided to dispense with criminal proceedings [ in the absence of evidence of a crime ] . Officials of the prosecutor 's office had not put any pressure on [ the second applicant ] or his father . [ The second applicant ] had requested a meeting with the prosecutor after he had given explanations to the investigator . [ The second applicant ] , at the request of a supervising official from the NORP prosecutor 's office , had confirmed the defamatory nature of the allegations represented in the letter of [ the PERSON ] . The NORP prosecutor 's office approved the decision taken by the district prosecutor 's office . \u201d","The report thus concluded that investigator PERSON . 's decision of DATE to dispense with criminal proceedings in connection with the allegations of ill - treatment of the applicants during their detention DATE and DATE in ORG and PERSON was lawful and well - founded , that the PERSON 's allegations concerning the pressure on the second applicant and his father during the investigation in connection with the PERSON 's complaint were groundless and that the PERSON 's request to have the decision of DATE set aside should be dismissed .","The Chernokozovo SIZO , where the applicants had been detained , received extensive attention from various human rights institutions , including ORG for the Prevention of Torture ( \u201c the ORG \u201d ) , for allegations of severe ill - treatment of detainees . On DATE the Head of the ORG delegation , Mr GPE , issued a statement to the NORP officials at the end of the ORG visit to the LOC region of GPE . The statement said , inter alia , in relation to the visit to PERSON :","The delegation is satisfied that , at present , persons detained in this establishment are not being physically ill - treated . Further , although conditions of detention in the GPE leave much to be desired , the delegation has noted that genuine efforts have been made in recent times - and continue to be made - to improve those conditions .","However , the information gathered by the delegation strongly indicates that many persons detained at GPE were physically ill - treated in the establishment during DATE to DATE . In different locations , the delegation has interviewed individually and in private a considerable number of persons who were held at GPE during that period . A clear pattern of physical ill - treatment of prisoners by custodial staff emerged . The ill - treatment alleged consisted essentially of kicks , punches and truncheon blows to various parts of the body ( excluding the face ) . The ill - treatment was said to have been inflicted principally in the central corridor of the detention facility , usually when prisoners were taken to an investigator 's room for questioning or when they were returned to their cells after such questioning ; apparently , prisoners were also on occasion physically ill - treated in the investigators ' rooms . Investigators were said to have been fully aware of the ill treatment being inflicted , and some prisoners affirmed that it was inflicted at their instigation . In certain cases , the delegation has gathered medical evidence which is consistent with the allegations of ill - treatment made by the prisoners concerned .","It is also noteworthy that practically all the prisoners interviewed who had been held at the establishment in GPE during DATE stressed that there had been a distinct change for the better in DATE , at the same time as a changeover of staff began to occur . The beatings stopped ; further , other improvements had been made , in particular as regards food . Moreover , no allegations of physical ill - treatment were made by prisoners interviewed who had arrived in the establishment after DATE .","On DATE the ORG issued a public statement concerning GPE , under LAW of LAW or Punishment . This step was prompted by the NORP authorities ' failure to cooperate with the ORG in relation to CARDINAL issues : ( i ) the carrying out of a thorough and independent inquiry into the events in a detention facility at GPE during DATE to DATE ; ( ii ) action taken to uncover and prosecute cases of ill - treatment of persons deprived of their liberty in GPE in the course of the current conflict . The statement read , in particular , as follows :","... the information gathered by the ORG 's delegation in the course of its DATE and DATE visits indicated that a considerable number of persons deprived of their liberty in GPE since the outset of the conflict had been physically ill - treated by members of the NORP armed forces or law enforcement agencies . In the report on those CARDINAL visits , the ORG recommended that the NORP authorities redouble their efforts to uncover and prosecute all cases of ill - treatment of persons deprived of their liberty in GPE in the course of the conflict . The ORG made a number of remarks of a practical nature intended to clarify the precise form those efforts might take . More generally , the ORG stressed that it was essential for the NORP authorities to adopt a proactive approach in this area .","The response of the NORP authorities to this key recommendation was very unsatisfactory ...","As was stressed in a letter sent to the NORP authorities on DATE , the ORG 's concerns in this regard are all the greater given that in the course of the ORG 's most recent visit to GPE , in DATE , numerous credible and consistent allegations were once again received of severe ill - treatment by Federal forces ; in a number of cases , those allegations were supported by medical evidence . The ORG 's delegation found a palpable climate of fear ; many people who had been ill - treated and others who knew about such offences were reluctant to file complaints to the authorities . There was the fear of reprisals at local level and a general sentiment that , in any event , justice would not be done . It was emphasised to the NORP authorities that they must spare no effort to overcome this deeply disturbing state of affairs .","On DATE the ORG issued a second public statement in relation to GPE . It was prompted by allegations of continued recourse to torture and other forms of ill - treatment by members of the law - enforcement agencies and federal forces operating in GPE . It also referred to the action taken to bring to justice those responsible as slow and ultimately ineffective . In particular , the report stated :","In the course of the ORG 's visits to GPE in DATE and , most recently , from CARDINAL to CARDINAL DATE , a considerable number of persons interviewed independently at different places alleged that they had been severely ill - treated whilst detained by law enforcement agencies . The allegations were detailed and consistent , and concerned methods such as very severe beating , the infliction of electric shocks , and asphyxiation using a plastic bag or gas mask . In many cases , these allegations were supported by medical evidence . Some persons examined by the delegation 's doctors displayed physical marks or conditions which were fully consistent with their allegations . Documentation containing medical evidence consistent with allegations of ill - treatment during periods of detention in law enforcement agencies was also gathered .","Article CARDINAL provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens , public or private bodies , articles in the press or discovery by an investigating body , prosecutor or court , of evidence that a crime had been committed .","Article CARDINAL provided that the investigating body had to take one of the following decisions within a maximum period of DATE after being notified of a crime : to open or refuse to open a criminal investigation , or transmit the information to an appropriate body . The informers were to be informed about any decision .","Under LAW , if the investigating body refused to open a criminal investigation , a reasoned decision had to be given . The informer was to be notified of the decision and was entitled to appeal against it to a superior prosecutor or to a court .","DATE ( CARDINAL ) guaranteed the principle of personal inviolability and established that no one could be arrested other than on the basis of a judicial decision or a prosecutor 's order .","Under LAW , an investigating authority could apprehend a person suspected of having committed a criminal offence punishable by imprisonment on one of the following grounds :","if the person was caught in the act or immediately after committing the offence ;","if eye - witnesses , including victims , directly implicated the person as the one who had committed the offence ;","if clear traces of the offence were found on the person 's body or clothes , or with him or in his dwelling .","An investigating authority was required to draw up a report on any apprehension of a person suspected of having committed a criminal offence , indicating the grounds , motives , day and time , DATE and DATE of the apprehension , the explanations of the apprehended person and the time the report was drawn up , and to notify a prosecutor in writing within TIME . Within TIME after being notified of the apprehension , the prosecutor had either to remand the apprehended person in custody or to release that person .","ORG . Article CARDINAL ( CARDINAL ) authorised imposition of preventive measures where there were sufficient grounds to believe that an accused could abscond from enquiries , preliminary investigation or trial , or obstruct the establishment of the truth in a criminal case or engage in criminal activity , as well as in order to secure the execution of a sentence . The investigator , prosecutor or the court could impose CARDINAL of the following preventive measures on the accused : a written undertaking not to leave a specified place , a personal guarantee or a guarantee by a public organisation , or remand in custody .","Article CARDINAL permitted , on an exceptional basis , a measure of restraint to be taken against a suspect who had not been charged . In such a case , charges had to be brought against the suspect within DATE after the imposition of the measure . If no charges were brought within the period specified , the measure of restraint was to be revoked .","Article CARDINAL required the following circumstances to be taken into account in imposing a measure of restraint : the gravity of the charges and the suspect 's or defendant 's personality , occupation , age , health , family status and other circumstances .","Article CARDINAL authorised an investigator , prosecutor , or a court to issue a ruling or finding as to a measure of restraint , provided it specified the offence of which the person was suspected or accused and the grounds for imposing such a measure . The person concerned had to be informed of the ruling or finding and at the same time provided with explanations concerning the appeal procedure . A copy of the ruling or finding had to be served immediately on the person against whom a measure of restraint had been taken .","Article CARDINAL set out the grounds for arrest , and authorised public prosecutors , from the level of a district or town prosecutor to ORG , to authorise detention on remand .","Article CARDINAL provided that detention on remand during the investigation of criminal cases could not exceed DATE . That term could be extended by a prosecutor for DATE , and further detention could be authorised by a regional prosecutor ( or a prosecutor of equal rank ) up to a maximum of DATE . Extension of detention beyond DATE was allowed in exceptional cases only with regard to persons charged with serious criminal offences , and could be authorised by a deputy Prosecutor General for a period of DATE , and by ORG for a period of up to one and a half years . Further extension of detention was not allowed and the person then had to be released immediately .","An appeal against an order extending periods of detention could be lodged with a court in the area of a detention centre in which a detainee was held ( Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL ) .","Article CARDINAL established that if criminal proceedings were discontinued on account of the absence of a crime , of evidence of a crime in the relevant actions , or of evidence of a person 's involvement in the imputed offence , competent public officials were under an obligation to take measures to compensate that person for the damage caused by , inter alia , his or her unlawful detention .","Article CARDINAL prescribed that all investigative measures , including inspection , search and seizure , should be documented by a formal record .","LAW regulated questions relating to searches , seizures and attachment of property . LAW provided that a search had to be conducted on the basis of an investigator 's reasoned decision and subject to the authorisation of a prosecutor . A search could be conducted without a prosecutor 's authorisation for a reason that admitted of no delay , but a prosecutor had to be notified of that search within TIME . Article CARDINAL restricted seizures to items and documents that could be relevant to the criminal investigation .","Chapter CARDINAL related to on - site inspections . Article CARDINAL permitted an inspection of the scene of the incident prior to institution of the criminal investigation for a reason that admitted of no delay . In that case , the investigation then had to be opened immediately after the inspection . Article CARDINAL required that a record be made for the inspection . That record had to describe the investigator 's actions and all items seized during the inspection .","This law provides that any citizen has the right to file a complaint with a court when he or she considers that his or her rights have been infringed by unlawful actions or decisions of ORG agencies , bodies of local self - government as well as institutions , enterprises or their associations , non - governmental organisations or officials and ORG employees .","Complaints may be filed either directly with a court or a higher ORG agency which has the obligation to review the complaint within DATE . If the complaint is rejected by the latter or there has been no response on its part , the person concerned has the right to bring the matter before a court ."],"violated_articles":["13","3","5"],"violated_paragraphs":["5-1","5-3","5-4","5-5"],"violated_bulletpoints":["5-1-c"],"non_violated_articles":["38"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57436","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1985,"docname":"CASE OF BENTHEM v. THE NETHERLANDS","importance":2,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient","judges":"C. Russo","text":["ORG Mr. PERSON , who was born in DATE , lives at GPE ( municipality of PERSON ) , where he used to own and run a garage .","ORG On DATE , he applied to the municipal authorities , in accordance with LAW ( see paragraphs CARDINAL below ) , for a licence to bring into operation an installation for the delivery of liquid petroleum gas ( \" ORG \" ) to motor vehicles . The installation comprised a surface storage tank with a capacity of QUANTITY .","The application was made public in order to enable those wishing to object to do so . On DATE , CARDINAL neighbours expressed their fear of fire and an explosion being caused by lightning .","ORG On DATE , the municipal authorities granted the licence , subject to CARDINAL conditions which they considered would counter the dangers in question . They referred to a letter in which an official of ORG had indicated that he agreed with such a course .","ORG On DATE , ORG had written to the municipal authorities to advise them to refuse a licence ; in his view , the proximity of houses involved excessive risks . On DATE , he lodged an appeal with the Crown ( GPE ; see paragraphs CARDINAL - CARDINAL below ) .","The municipal authorities informed Mr. PERSON of the appeal on DATE . They stated that since it had no suspensive effect , he could erect the installation . However , they added that if he did so , they would not be liable for any financial losses he might sustain in the event of the licence being cancelled .","ORG The Chairman of ORG of ORG ( Afdeling voor Geschillen PERSON ) - to which ORG it fell to investigate the matter and then advise the ORG - sought information from the Minister of ORG ( sections CARDINAL and GPE ) of ORG ; see paragraphs CARDINAL and CARDINAL below ) . This information was supplied , in a letter of DATE , by the Director ORG ; he expressed the view that the appeal was well - founded as he considered that further conditions ought to be attached to the licence .","ORG After a hearing in the presence of the parties , during which the applicant was heard on DATE , the Chairman of the ORG asked the Director General for additional information .","The latter explained , in a letter of CARDINAL DATE , that the situation had changed : greater importance was now attached to the dangers involved in storage and delivery . He shared the view of ORG that , pending revision of the current officially - recommended standards , there should not be CARDINAL houses within a radius of QUANTITY from the gas tanks and dispensers , nor QUANTITY between the installation and the nearest houses .","The Director General therefore concluded that the licence sought by Mr. PERSON should be refused , as these conditions were not satisfied .","ORG At a hearing held on DATE , the applicant argued that ORG \" interim position \" , as well as being inadequately motivated , was not based on sufficiently sound technical grounds . Having been asked by the Chairman of the ORG to elaborate on his opinion , the Director General provided , on DATE , further details concerning the safety hazards ; he stated that , pending the results of a study ( which was being undertaken because of the many appeals outstanding ) , a cautious attitude should be adopted when granting licences . He thus confirmed his earlier position .","ORG On DATE , ORG sent to the Minister of ORG an opinion recommending that the licence be refused ; a draft of the Decree to be adopted was attached thereto .","ORG On DATE , by a Decree in the same terms as the draft , the ORG quashed the municipal authorities\u2019 decision . It considered that a different view should be taken regarding the distance between an ORG installation and the neighbouring houses and that , in the particular circumstances , the risks could not be eliminated merely by the imposition of additional conditions .","As a result , the municipal authorities issued an order directing Mr. PERSON to cease operating his installation . He lodged an appeal against this decision , but it was confirmed by the ORG by a Decree of DATE . A second decision - dated DATE and providing for the closure of the installation by the authorities themselves - was quashed , on formal grounds , by ORG ( Afdeling Rechtspraak ) of ORG on DATE . According to information which was given to the ORG at the hearings and was not contested , the installation was not closed down until DATE . At DATE , Mr. PERSON had been declared bankrupt .","The Nuisance Act DATE prohibits , in the absence of a licence , the erection , bringing into operation , exploitation , extension or modification of certain installations which may be a source of danger , damage or nuisance to their surroundings ( section CARDINAL ( CARDINAL ) ) .","The installations concerned are listed in a Decree , and they include those for delivering ORG .","Licence applications , which are submitted to the municipal authorities , are first of all notified to the public , who may make oral or written objections . Certain government bodies - such as ORG - are also given an opportunity to express their views .","The decision lies with the municipal authorities ( section CARDINAL ) . They may refuse a licence only if the erection , bringing into operation , exploitation , extension or modification of the installation would result in danger or , as regards property , industry or health , damage or serious nuisance , and if such danger , damage or nuisance could not be sufficiently averted by the imposition of conditions ( section CARDINAL ( CARDINAL ) in the version in force at the relevant time ) .","Once issued , a licence covers both the original holder and his assignees ( section CARDINAL ) . It may be granted by the municipal authorities for a limited period or subject to conditions binding upon the licensee ( sections CARDINAL and DATE ) .","ORG After the persons and authorities involved have been informed of the decision , the applicant for the licence , anyone who duly raised objections and the government bodies concerned may lodge an appeal with the Crown within a certain period ( section CARDINAL , which was then in force ) . The ORG determines the appeal on the advice of ORG of ORG ( section CARDINAL ) .","An appeal has no suspensive effect but , under LAW ( a ) of ORG ( Wet op de Raad van State ) , the appellant may ask the Chairman of the ORG to defer implementation of the decision or to order interim measures .","ORG At the close of the proceedings , the ORG will confirm , amend or quash the initial decision .","ORG Under LAW , the person of PERSON the Queen - is inviolable . The King takes his decisions on the responsibility of a Minister , who has to countersign them .","The expression \" the ORG \" , when decision - making powers are being exercised , is commonly used to denote the King together with the Minister or Ministers .","ORG The ORG gives rulings in administrative litigation which is brought before it on appeal . In carrying out this function , the ORG will not take a decision until ORG of ORG has investigated the matter and prepared a draft decision ( section CARDINAL ( CARDINAL ) of ORG ) .","The members of the ORG , whose number is fixed by the ORG but can not be CARDINAL including the Chairman , are chosen by the ORG from amongst the members of ORG and on its recommendation . ORG is to be distinguished from ORG which itself decides cases falling within its competence .","ORG The Chairman of ORG calls for the necessary official reports and informs the Minister concerned thereof ( section CARDINAL ( c ) ( CARDINAL ) ) . The interested parties may submit such documentary evidence as they consider necessary ( section CARDINAL ) . A public hearing enables them , if they so wish , to argue their cases ( section CARDINAL ) . Like the Chairman of the ORG , they may call witnesses or experts , put questions to them and comment on any evidence given ( sections CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL ) .","The ORG deliberates in camera ( section CARDINAL ) ; it may carry out on - site inspections ( section CARDINAL ) , ask for additional official reports , on which the interested parties may comment ( section DATE ) , and hold further hearings ( section CARDINAL ) .","It then draws up a draft LAW , which it submits to the ORG together with its advice ( section CARDINAL ) . The Minister concerned has DATE to inform the ORG of any objections he may have and ask it to reconsider the case ( section CARDINAL ) .","ORG After receiving the ORG \u2019s advice or further advice , the ORG issues LAW within DATE . This time - limit may be extended by DATE ( section DATE ( CARDINAL ) ) . After it has expired , the ORG must decide in accordance with the ORG \u2019s advice ( section CARDINAL ( a ) ) . Prior to that , it may depart from the advice , but only if the Minister concerned has first consulted the Minister of ORG or , where the latter is himself concerned , if he has first consulted the Prime Minister ( sections DATE and DATE ( CARDINAL ) ( a ) and ( b ) ) . In practice , the ORG very rarely takes this course .","The ORG \u2019s decision , against which no further appeal is available , may be based on considerations of law or of expediency .","The Decree , which incorporates the reasons therefor , is immediately sent to the interested parties and the ORG . It is then made available for DATE for public inspection at the ORG of ORG ( section CARDINAL ( CARDINAL ) ) . If the Decree departs from the advice , it is published in ORG ) together with the Minister \u2019s report , which contains the ORG \u2019s draft and the Minister \u2019s correspondence with the ORG and with the Minister of ORG or the Prime Minister ( section CARDINAL ( CARDINAL ) ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103359","languageisocode":"ENG","respondent":"UKR","branch":"COMMITTEE","date":2011,"docname":"CASE OF RUDYCH v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in LOC .","On an unspecified date in DATE he lodged an action against a collective farm PERSON , seeking damages for a discrepancy in the calculation of compensation for his professional illness that had been paid since DATE . On DATE ORG ( \u201c the ORG \u201d ) opened proceedings .","In a judgment of CARDINAL DATE it dismissed the applicant 's action . On DATE ORG ( \u201c the Court of Appeal \u201d ) quashed that judgment and ordered a fresh hearing .","On DATE ORG ordered an accounting expert examination . It held the next hearing on DATE .","On DATE ORG ( \u201c the Fund \u201d ) joined the proceedings as a second respondent and PERSON was replaced by its legal successor , private company L.","On DATE ORG dismissed the applicant 's claim for damages that after a modification amounted to ORG CARDINAL ( ORG CARDINAL ) . On DATE ORG upheld that judgment . On DATE the applicant appealed in cassation .","On DATE ORG rejected his appeal in cassation .","According to the Government , in the course of the proceedings , the applicant filed CARDINAL procedural request and CARDINAL appeals , CARDINAL of which did not meet procedural requirements . Out of the QUANTITY hearings scheduled DATE and DATE , CARDINAL were adjourned for unknown reasons , CARDINAL were adjourned either at the applicant 's request or due to his failure to attend , CARDINAL was adjourned due to CARDINAL of the respondents ' failure to attend , CARDINAL was adjourned for the parties to reach a friendly settlement , and CARDINAL were adjourned for other reasons beyond parties ' control ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76596","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"CINTOSUN v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by Mr PERSON and Mr B. PERSON , lawyers practising in ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","Until DATE , the applicants lived in GPE hamlet of NORP village in PERSON , ORG , where they own property . Following an armed clash between the security forces and the ORG militants in a nearby area , the security forces came to GPE and required the inhabitants to establish a village guards system \u2013 a security system designed to protect villages against possible terrorist attacks by the ORG .","Upon their refusal , the security forces evacuated the hamlet . The applicants had to move to the city centre of ORG , where they currently live .","On an unspecified date , the security forces set fire to the houses and the cultivated fields in the hamlet .","Following the incidents , the applicants filed applications with the administrative and military authorities , asking for an authorisation to return to their hamlet , or in the alternative , to continue to cultivate their fields . They also requested to be remedied for the incidents . The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them .","The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants\u2019 village or forced them to leave their homes .","The official records indicated that 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI )"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110895","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2012,"docname":"CASE OF KAVERZIN v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska","text":["The applicant was born in DATE . He is currently serving a prison sentence in PERSON .","On DATE the applicant was arrested on suspicion of several counts of aggravated murder and robbery . In the course of his arrest force was used against the applicant .","Subsequently , the applicant was taken to a police station , where he was allegedly tortured by unspecified police officers with the aim of extracting a confession of his having committed the crimes of which he was suspected . According to the applicant , during such ill - treatment , which continued for DATE thereafter , he received an eye injury which eventually resulted in him suffering a complete loss of eyesight .","Later on DATE he was taken to a temporary detention centre ( \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u0442\u0438\u043c\u0447\u0430\u0441\u043e\u0432\u043e\u0433\u043e \u0442\u0440\u0438\u043c\u0430\u043d\u043d\u044f \u2013 \u201c the ORG \u201d ) in ORG .","DATE the applicant was taken to ORG , where he was examined by a trauma specialist , a surgeon and a neurosurgeon . The applicant \u2019s skull was x - rayed and samples of his blood and urine were taken . He was diagnosed with bruising to the chest , lumbar area , kidneys , and soft tissues on the face and the back of his head . The doctors prescribed a further examination of the applicant by an urologist and outpatient supervision by a neurologist .","On DATE a prosecutor from ORG questioned the applicant , in the presence of a lawyer appointed to assist him by the authorities , with a view to taking a decision concerning the applicant \u2019s continued detention . The prosecutor noted a haematoma on the applicant \u2019s face next to his right eye . According to the prosecutor \u2019s report to his superior of the same date , the applicant explained that he had received the injury during his arrest , that he had not been illtreated by the police after his arrest and that he had voluntarily given his confession .","On DATE the prosecutor was instructed by his superior to carry out an inquiry in order to take a decision in accordance with LAW ( see paragraph CARDINAL below ) .","On DATE several police officers gave written explanations concerning the applicant \u2019s arrest , in which they stated that the applicant had resisted arrest by \u201c applying unarmed combat techniques and trying to escape \u201d . According to them , \u201c measures of physical restraint and special means [ of restraint ] , namely handcuffs \u201d had been used against the applicant and he had been taken to the police station .","On DATE the applicant was taken by the police to see a medical expert . The expert examined the applicant and noted that he displayed bleeding into the eyeball , haematomas and abrasions on the left side of his chest , arms and legs , some of which were DATE and others were DATE . The expert noted that many of the injuries , including the bleeding into the applicant \u2019s eyeball , had been caused by blunt solid objects . According to the expert \u2019s notes , during the examination the applicant stated that some of his injuries had been caused by him falling down the stairs , that his vision had been deteriorating since he was young , and that he had no complaints about the authorities\u2019 actions . The expert concluded that the injuries were of a minor character and that they had not lead to a deterioration of the applicant \u2019s health .","The applicant remained in police custody until DATE . On DATE he was placed in an investigative detention unit ( \u0441\u043b\u0456\u0434\u0447\u0438\u0439 \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u2013 \u201c GPE \u201d ) in ORG . Upon his arrival at ORG , the applicant was examined by a paramedic , who noted several bruises on the left shoulder , chest , arm and knee . The applicant did not receive any treatment for his injuries in PERSON .","According to the applicant , on DATE he complained to the same prosecutor from ORG that had previously questioned him that he had been tortured by the police after his arrest .","On DATE the prosecutor issued a decision rejecting the applicant \u2019s complaints and informed the applicant of it . The relevant parts of the decision read as follows :","\u201c ... On DATE PERSON was questioned at the regional prosecutor \u2019s office in the course of consideration of the question of ... his placement in GPE [ GPE ] No . CARDINAL . During his questioning with the participation of [ his ] defence lawyer , PERSON explained that he had sustained the injuries in the course of his arrest , that he did not have any complaints against the police , [ and ] that he had made his first statements freely , without psychological or physical pressure on the part of the police officers .","The [ police ] officers ... who had taken part in the arrest of PERSON [ were questioned and ] explained that they had been aware that PERSON had used firearms during his attempted arrest by the police in GPE , as a result of which QUANTITY police officers had died . Because of that [ fact ] they had been particularly cautious and when PERSON had attempted to resist [ arrest ] ... there had been measures of physical restraint and special means [ of restraint ] , namely handcuffs , applied to him .","According to the records of the forensic examination ... dated DATE , [ the following injuries on the body and face of PERSON ] had been discovered : bleeding into the eyeball ; a haematoma on the left side of the chest ; numerous abrasions on the lower limbs that had been caused by blunt solid objects ; abrasions and scratches on the wrists that had been caused by blunt solid objects , which could have been the handcuffs ; numerous indurations of various parts of the skin with small wounds caused by insects ... the injuries could have been caused to PERSON in the circumstances described by [ both ] the police officers and PERSON himself . Therefore , there are no elements of a crime in the actions of the police officers .","On the basis of the foregoing , pursuant to paragraph CARDINAL of LAW [ LAW ] of GPE [ the prosecutor ] .","Decided :","To refuse the opening of a criminal case against [ the police ] officers who took part in the arrest of ... PERSON on the ground there were no elements of a crime in their actions ... \u201d","According to the applicant , he was not given a copy of that decision and its details were not explained to him .","The decision was not challenged before the courts under the procedure envisaged by LAW .","On DATE the applicant was transferred to PERSON . On DATE he was examined by a doctor , who noted that the applicant suffered from loss of eyesight as a result of a head injury in DATE and had several bruises on his body .","On DATE the applicant was examined by a medical expert , who noted that the applicant had suffered a head injury and was completely blind .","During his detention in PERSON the applicant was examined by doctors and received specialist ophthalmological treatment in DATE and DATE and in DATE , DATE and DATE . On several occasions he was taken to public hospitals for medical examination . The doctors concluded that the applicant did not require eye surgery and could receive the necessary medical treatment in the GPE .","On DATE , on the order of the trial court , a medical panel established that the applicant had become completely blind and , accordingly , suffered from the highest officially recognised degree of disability . The applicant was diagnosed with corneal cicatrix and leucoma , a cataract of the right eye resulting from a penetrating wound , and uveitis in the left eye . The doctors concluded that the applicant was in need of outside assistance to manage aspects of daily life .","On DATE the applicant was placed in GPE to serve his sentence .","During his detention in GPE the applicant was examined by doctors , including an ophthalmologist , at least once DATE . In DATE he was prescribed eye surgery at a specialised hospital . According to the Government , the applicant did not avail himself of the possibility to undergo the surgery pursuant to paragraph LAW CARDINAL of the Code on the Execution of Sentences ( see paragraph CARDINAL below ) .","Subsequently , the applicant was prescribed anti - relapse treatment in view of his blindness , which mainly included administering medication . On several occasions the applicant refused to be examined by doctors and in DATE and DATE he refused to be transferred to a hospital within FAC to receive specialised ophthalmological treatment .","In DATE the administration of ORG did not allow the applicant \u2019s mother to supply him with unspecified medication which he allegedly needed . The authorities explained that the applicant would be given the necessary medication if his doctors so decided . In DATE the authorities informed the applicant \u2019s mother that her request for the applicant \u2019s transfer to a specialised prison for persons suffering from the highest degree of disability could not be met as no such a prison existed . The applicant did not provide further details in that respect .","The applicant alleged that in spite of his blindness he had been handcuffed when leaving his cell , including during DATE walks and family visits , and had been followed by several wardens with a dog .","He also stated that in GPE he had been unlawfully refused TIME DATE walks to which he had allegedly been entitled in view of his disability ; that his cell had lacked ventilation ; and that he had not been allowed to make phone calls . He provided no further details in this respect .","According to the applicant , in DATE the prison authorities delayed , for DATE , the dispatch of CARDINAL of his letters .","By a letter of DATE addressed to the applicant \u2019s mother , the Head of ORG informed her that :","\u201c ...","During [ DATE ] walks [ the applicant ] has been handcuffed with his hands behind his back , as are all other life - sentenced prisoners , in accordance with paragraph CARDINAL of LAW .","...","Once the area for [ DATE ] walks is adapted to the requirements of ORG ... as amended on DATE , life - sentenced prisoners will be allowed to stay there without handcuffs .","In accordance with LAW and LAW , prisoners sentenced for life are entitled to TIME DATE walks .","Prisoners suffering from tuberculosis ... are entitled to TIME DATE walks .","[ Mr PERSON ] does not suffer from tuberculosis , he is being detained under the ordinary regulations , and he is being [ taken for ] TIME DATE walks .","All [ of PERSON ] correspondence is dispatched in accordance with LAW ; it has not been hindered . \u201d","By a letter of DATE , ORG informed the applicant \u2019s mother that in DATE CARDINAL of the dogs accompanying the prison guards had bit the applicant because of his own recklessness . It was also stated that handcuffs were not being applied during DATE walks .","The CARDINAL above - mentioned letters contained a statement that the actions of the penitentiary authorities could be challenged before a prosecutor .","On DATE the applicant was moved to ORG , where he is currently serving his sentence . The applicant has not provided information concerning the medical assistance provided to him in that colony .","In DATE the applicant \u2019s mother was informed that the applicant \u2019s complaint of torture had been rejected as unsubstantiated , though no details of the decision were given to her . In DATE she requested a copy of the decision , which was sent to her in DATE .","Subsequently , the applicant \u2019s mother complained to a Member of ORG of the applicant \u2019s torture by the police and the authorities\u2019 failure to investigate the matter . Upon a request by the Member of ORG , in DATE the materials of the previous inquiry were checked by the prosecutor \u2019s superior , who eventually confirmed the accuracy of the decision issued on DATE . In particular , the supervising prosecutor studied the materials of the DATE inquiry .","In DATE the applicant lodged a compensation claim with ORG of GPE against ORG for the Execution of Sentences and ORG , alleging that his disability had been caused by the unlawful actions of the police and the failure of the penitentiary authorities to provide him with adequate medical assistance . The courts at CARDINAL levels of jurisdiction refused to examine the applicant \u2019s claim for failure to meet the relevant procedural requirements . The applicant challenged the refusal in cassation , the outcome of which is unknown .","The criminal investigation in the applicant \u2019s case was completed in DATE . Subsequently , the criminal case was referred to ORG for trial .","In the course of the investigation and trial , the applicant was assisted by a lawyer appointed for him by the authorities . That lawyer took part in the first stages of the proceedings before the first - instance court and was later replaced by another lawyer for unknown reasons . The new lawyer continued defending the applicant until those proceedings were completed .","In the course of the trial the applicant contested the charges against him and alleged that his confession to some of the crimes of which he had been accused had been obtained under physical and psychological pressure from the police .","On DATE the court found the applicant guilty of CARDINAL counts of aggravated murder , infliction of grievous bodily injuries , illegal possession of firearms , banditry , and robbery . In particular , the applicant was held to be responsible for the murder of CARDINAL people , including QUANTITY police officers who had attempted to stop him from committing crimes . He was found to be exceptionally dangerous to society and was sentenced to life imprisonment , together with the confiscation of all his property .","NORP The court mainly based its judgment on the statements of CARDINAL witnesses and victims of the crimes , the testimony given by the applicant at the trial , and on the conclusions of several forensic , ballistic and other expert examinations . The findings of the court concerning CARDINAL of the counts of murder were partly based on the confessions obtained from the applicant during his time in police custody .","In the same judgment the court , relying on the decision of the prosecutor of DATE , dismissed the applicant \u2019s complaints of torture by the police and found that there was no evidence that his confession had been obtained under duress .","On DATE the applicant lodged an appeal in cassation , contesting the first - instance court \u2019s factual findings and legal conclusions . He further argued that , in determining his sentence , the court had not taken into account his poor state of health . The applicant also maintained his allegation of torture by the police .","On DATE ORG partly varied the judgment of CARDINAL DATE , while confirming the first - instance court \u2019s findings concerning the applicant \u2019s guilt and upholding his sentence . ORG also rejected the applicant \u2019s allegation of torture on the same grounds as the first - instance court .","The relevant provisions of the LAW read as follows :","\u201c Everyone has the right to respect for his or her dignity .","No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity ... \u201d","\u201c ORG of GPE constitutes a unified system that is entrusted with :","( CARDINAL ) prosecuting [ crimes ] in court on behalf of the ORG ;","( CARDINAL ) NORP representing the interests of a citizen or of the State in court in cases determined by law ;","( CARDINAL ) supervising compliance with the law by the bodies that conduct detection and search activities , inquiries and pre - trial investigations ;","( CARDINAL ) supervising observance of the law in the execution of judicial decisions in criminal cases , and also in the application of other coercive measures aimed at the restraint of ORG personal liberty . \u201d","The relevant provisions of LAW , as in force at the material time , provided :","\u201c A court , prosecutor , investigator or body of inquiry must , to the extent that it is within their power to do so , institute criminal proceedings in every case where signs of a crime have been discovered , take all necessary measures provided by law to establish the circumstances surrounding the crime , identify those guilty of the crime and punish them . \u201d","\u201c Criminal proceedings shall be instituted on the basis of :","( CARDINAL ) applications or communications from enterprises , institutions , organisations , officials , representatives of official bodies , the public and individuals ;","( CARDINAL ) communications from representatives of the authorities , the public or individual citizens who have apprehended a suspect in the place where the crime was committed or caught him red - handed ;","( CARDINAL ) [ the suspect \u2019s ] appearance with an acknowledgement of guilt ;","( CARDINAL ) information published in the media ;","( CARDINAL ) direct detection of signs of a crime by a body of inquiry , investigator , prosecutor or court .","[ Criminal ] proceedings may be instituted only where there is sufficient information that a crime has been committed . \u201d","\u201c Applications or communications ... about a crime may be made in writing or orally ... \u201d","\u201c A prosecutor , investigator , body of inquiry or judge shall accept applications or communications about crimes [ which have been ] committed or [ are ] being prepared , including in cases that are outside their jurisdiction .","Upon an application or communication about a crime , the prosecutor , investigator , body of inquiry or judge shall adopt , within DATE , CARDINAL of the following decisions :","( CARDINAL ) to institute criminal proceedings ;","( CARDINAL ) NORP to refuse to institute criminal proceedings ;","( CARDINAL ) NORP to remit the application or communication for examination in accordance with [ the rules of ] jurisdiction .","Simultaneously , all possible measures shall be applied to prevent the further commission of the crime or to put an end to it ...","Before instituting criminal proceedings , the prosecutor , investigator or body of inquiry shall conduct an inquiry , if it is necessary to verify [ information contained in ] an application or communication about a crime . [ Such inquiry ] shall be completed within DATE by means of collecting explanations from individual citizens or officials or by means of obtaining necessary documents .","[ Information contained in ] an application or communication about a crime may be verified before instituting criminal proceedings through detection and search activities ... \u201d","\u201c A decision by an investigator or body of inquiry refusing to institute criminal proceedings may be appealed against to the relevant prosecutor . If that decision was taken by a prosecutor , it may be appealed to a higher prosecutor . An appeal shall be lodged by a person whose interests are concerned or by his \/ her representative within DATE from the date of receipt of a copy of the decision .","If the prosecutor refuses to annul the decision ... a person whose interests are concerned or his \/ her representative may lodge an appeal against it with a court under the procedure prescribed by LAW .","... \u201d","\u201c An appeal against a decision by a body of inquiry , investigator or prosecutor ... refusing to institute criminal proceedings shall be lodged with [ the relevant ] court by a person whose interests are concerned or his \/ her representative within DATE of notification of the decision by the prosecutor ... \u201d","\u201c An appeal against a decision by a body of inquiry , investigator or prosecutor ... refusing to institute criminal proceedings shall be examined [ by the relevant court ] in a single - judge bench within DATE of its receipt .","The judge shall obtain the materials on the basis of which the decision ... was taken , examine them , and inform the prosecutor and the appellant of the date on which the hearing on the appeal is scheduled . If necessary , the judge may hear the appellant in person .","Having examined the appeal , the judge ... shall take CARDINAL of the following decisions , depending on whether the requirements of LAW were observed :","( CARDINAL ) to set aside the decision not to institute criminal proceedings and remit the materials for additional inquiry or open a criminal case ;","( CARDINAL ) to reject the appeal .","The judge \u2019s order may not be appealed against ... \u201d","DATE PERSON provides that male detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security . They are placed in cells for CARDINAL people . Under LAW , they are allowed to have a TIME DATE walk .","Article CARDINAL prohibits the use of special instruments of restraint , including handcuffs , to prisoners with ( amongst other things ) \u201c apparent signs of disability \u201d , provided they do not commit gang violence or violent assault endangering the life or health of others and do not offer armed resistance .","Pursuant to paragraph CARDINAL of Article CARDINAL , prisoners may seek , at their own or at their relatives\u2019 expense , medical assistance , including treatment , from civilian medical institutions . In such cases , medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his \/ her sentence , under the supervision of the colony \u2019s medical staff .","According to LAW , the prosecution service constitutes an integrated centralised system headed by ORG and based on the principle of hierarchical subordination .","The Detection and Search Act provides a legal basis for various measures which may be used by the police , secret service and several other law - enforcement bodies in order to collect and record information about unlawful activities . These measures include questioning individuals upon their consent , secretly collecting data concerning crimes , using undercover agents , personal surveillance and so forth . Law - enforcement authorities entrusted with detection and search functions are required to follow ORG instructions .","The rules governing the detention of prisoners sentenced to life imprisonment subject them to special restrictions as regards the material conditions of their detention , activities and opportunities for human contact , which include permanent separation from the rest of the prison population , limited visiting entitlements , a prohibition on communication with other prisoners , and being escorted by CARDINAL wardens with a guard dog and handcuffed with their arms behind their back whenever they are taken out of their cell ( regulations DATE ) . On DATE regulation CARDINAL has been amended to include the requirement that doors to walking areas in the sectors for prisoners sentenced to life imprisonment should be equipped with special windows allowing putting on and off handcuffs on prisoners .","Pursuant to regulation CARDINAL , prisoners sentenced to life imprisonment receive medical aid , as a rule , in their cells in the presence of CARDINAL guards . Such prisoners are to be transferred to a medical institution run by ORG for the Execution of Sentences , or to a regular medical centre , if they need urgent medical aid .","Annex CARDINAL to the ORG states that people detained in penitentiary institutions are not allowed to keep in their possession any medicines or medical items .","The instruction is a classified ( non - public ) document . An extract from it ( paragraph CARDINAL ) submitted by the ORG provides as follows :","\u201c When prisoners sentenced to life imprisonment are taken out of their cells , the junior warden shall open the first door from the corridor side of the [ door ] and order the prisoners to come up to the door and turn round , facing toward the opposite wall and holding their hands behind their backs , and then , through the opening , handcuff the prisoners . Having handcuffed all the prisoners and having made sure that they have stepped back [ against ] the opposite wall , the warden shall [ then ] open the internal door . After the prisoners have been taken out from their cells , they shall undergo a partial search with the use , if necessary , of technical means of detection and control . The aforementioned category of prisoners are [ to be ] taken from their cells one after another , escorted by CARDINAL officers from the administration and a junior warden with a guard dog .","When escorting a prisoner sentenced to life imprisonment , CARDINAL junior warden shall walk ahead of him , surveying the route . The prisoner shall follow CARDINAL metres behind . The rest of the escorting junior wardens shall follow the prisoner QUANTITY behind . The movement of life - term prisoners is organised under the personal control of the on - duty assistant to the prison governor , or his deputy , who , in all instances , shall follow in the rear . \u201d","In the DATE report the ORG described the problem of ill - treatment in the course of pre - trial investigations as a systemic one . In particular , she noted that :","\u201c ... [ P]eople [ arrested by the police ] are being beaten , humiliated , [ and ] tortured during TIME following arrest in order to extract confessions or statements incriminating others . Torture and cruel and degrading treatment of citizens in the premises of the police at pre - trial stages of criminal proceedings are widespread and systemic . [ This ] gives evidence of brutal violations of human rights and abuse of power . \u201d","According to the ORG , the fact that police officers were required to increase the percentage of solved crimes , while investigators were required to increase the number of cases referred to the courts for trial , contributed to the use of torture . As she put it in the report , \u201c the lack of ORG qualification in the situation when courts often accept a suspect \u2019s confession as sufficient proof [ of his guilt ] [ gave motivation ] for law - enforcement officers to rapidly [ extract confessions ] ... \u201d","The ORG also noted the lack of adequate action on the part of prosecutors as regards allegations of torture by the police , the ORG inquiries often being perfunctory and seriously protracted . She further observed that , when such cases reached the courts , the latter were in general hesitant to apply adequate sanctions against police officers responsible for torture and other forms of ill - treatment . According to the ORG , in DATE out of CARDINAL police officers found guilty of such crimes CARDINAL were sentenced to imprisonment .","In her subsequent DATE reports concerning the human - rights situation in GPE , the ORG made similar observations regarding the problem of ill - treatment by the police . For instance , in the DATE report she noted that ( extracts from paragraph CARDINAL of the report ) :","\u201c ... [ L]aw - enforcement authorities beat individuals in order to extract confessions , to improve solved crimes\u2019 rates , to extort bribes , or to steal [ ORG property ] .","The majority of such incidents take place in the premises [ of law - enforcement authorities ] . Unfortunately , torture takes place in all regions of GPE , which is evidenced by the results of [ the ORG \u2019s ] work , information from prosecutors , human rights defenders , ORG , and court verdicts . [ Such incidents ] happen in different places , with different individuals , and in different circumstances . However , it is perhaps commonplace [ ... ] that an individual in [ GPE ] may not feel free [ and ] protected from the criminal acts of ORG agents .","...","Unfortunately , ill - treatment by law - enforcement authorities has taken on very brutal forms and has increasingly resulted in GPE deaths . In DATE police officers tortured QUANTITY people to death , in DATE CARDINAL , and in DATE ! \u201d","In the DATE report the ORG named the problem of illtreatment as one of the top priorities in her work , noting that CARDINAL of CARDINAL complaints , which were being lodged with her office against police officers every year , concerned that problem . The ORG considered that , in order to eradicate torture in police custody , it was necessary \u201c to liquidate corruption in that body , to change the evaluation of police ORG work [ currently ] based on the number of solved crimes , to put an end to [ the practice of ] abusing arrests and administrative detention , to provide arrested people with the possibility of obtaining assistance of a lawyer , to keep record and statistics of incidents of application of physical violence , to create an appropriate mechanism of investigation of complaints of torture , and [ to establish ] the national mechanism of prevention of torture \u201d ( section CARDINAL of the report ) .","NORP The report is based upon a detailed analysis of information concerning the human rights\u2019 observance by the NORP police in DATE , which includes official statistics , normative acts , observations by nongovernmental organisations , individual complaints and mass media publications . According to the report , in DATE alone CARDINAL persons were ill - treated by the police , of which CARDINAL persons died . There were CARDINAL official complaints of ill - treatment by the police lodged with the authorities during DATE and PERCENT of them were found substantiated . Prosecutors opened CARDINAL criminal cases against police officers on charges of torture and CARDINAL cases on charges of infliction of bodily injuries and murder by agents of the police .","The report also contains the following extract from an unpublished letter of ORG dated DATE :","\u201c ... Numerous complaints against police officers provide evidence that the aims , methods and practice of law enforcement authorities have not changed . Repression , disrespect of ORG rights , freedoms and interests prevail in particular through [ resort to ] torture , inhuman or degrading treatment , physical and psychological pressure on suspects . Besides , because of the low level of professionalism of a large number of police officers and [ their ] lack of skills [ to employ detention and search techniques ] as envisaged by law , they use prohibited methods of [ police ] inquiry ... \u201d","The Government submitted copies of decisions concerning complaints of police ill - treatment made by CARDINAL private individuals , PERSON and PERSON , who had been arrested by the police on DATE and released on DATE . The police had allegedly tried to coerce the complainants to confess to certain criminal acts . As established by medical examinations upon their release from police custody , the complainants had been injured either on DATE or DATE before .","The copies included CARDINAL ORG decisions rejecting the complaints , which were subsequently quashed by higher prosecutors and a court . The court found that the ORG inquiry had not been full and objective and that they should have questioned several more people , including CARDINAL of the complainants , and should have examined certain medical documents . The third decision issued by the prosecutors contained reference to the medical documents indicated by the court and to statements obtained from CARDINAL of the people mentioned in the court \u2019s decision . It was concluded that the allegations were unfounded and that the complainants had been injured before their arrest . It is unknown if the latter finding was challenged before the courts .","On DATE the ORG published a report on its visit to GPE from DATE . The relevant parts of the DATE report read as follows :","\u201c ...","Torture and other forms of ill - treatment","The treatment of persons deprived of their liberty by members of the operational services of [ the police ] remains a source of grave concern for the ORG , DATE after its first visit to GPE . Once again , widespread allegations of physical ill - treatment have been received , at the time of apprehension and in particular during questioning .","...","There is no need here to set out the alleged forms of physical ill - treatment , as they are similar to those described in paragraph CARDINAL of the report on the DATE visit . As in the past , in many cases , the severity of the ill - treatment alleged was such that it could be considered as amounting to torture .","...","In the light of the information at its disposal , the ORG can only reach the same conclusion as it had in DATE , namely that persons deprived of their liberty by [ the police ] run a significant risk of being physically ill - treated at the time of their apprehension and\/or while in the custody of [ the police ] ( particularly when being questioned ) , and that on occasion resort may be had to severe ill - treatment \/ torture .","The DATE visit showed that progress in implementing the recommendations made by the ORG in its previous report , aimed at introducing a strategy to prevent ill - treatment , has been slow ...","It is axiomatic that CARDINAL of the most effective means of preventing ill - treatment of persons deprived of their liberty lies in the diligent examination by the relevant authorities of all complaints of such treatment brought before them and , where appropriate , the imposition of a suitable penalty . This will have a very strong deterrent effect . Conversely , if the relevant authorities do not take effective action upon complaints referred to them , those minded to ill - treat persons deprived of their liberty will quickly come to believe that they can act with impunity .","In this respect , it must unfortunately be pointed out that , once again , the ORG \u2019s delegation heard allegations to the effect that prosecutors and judges paid little attention to complaints of ill - treatment - even when the person concerned displayed visible injuries .","In this context , the figures transmitted by ORG speak volumes . It seems that over DATE , the NORP prosecutors did not initiate any criminal proceedings against law enforcement officials under ORG CARDINAL ( assault and battery ) and CARDINAL ( torture ) of LAW . \u201d","The ORG made similar findings regarding allegations of ill - treatment by the police and lack of effective investigation in the reports on its visits to GPE from DATE ( paragraphs CARDINAL of the DATE report ) and from DATE ( paragraphs CARDINAL of the DATE report ) . In the preliminary observations concerning its visit to GPE from CARDINAL DATE to DATE , published on CARDINAL DATE , the ORG noted that \u201c the phenomenon of police ill - treatment [ remained ] widespread and that persons [ ran ] a significant risk of being subjected to ill - treatment while in the hands of the police ( in particular , when they [ did ] not rapidly confess to the criminal offence(s ) of which they [ were ] suspected ) \u201d .","During the DATE visit the ORG delegation also inspected ORG . CARDINAL for men , including the unit for men sentenced to life imprisonment , and the temporary unit for women sentenced to life imprisonment at ORG No . DATE . The ORG made the following findings concerning certain aspects of the conditions of detention of prisoners sentenced to life imprisonment ( paragraph CARDINAL of the DATE report ) :","\u201c ... [ W]hereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women , the NORP authorities have still not ceased this practice for men .","More generally , the attitude towards this category of prisoners at Colony No . CARDINAL was extremely security - oriented , with staff constantly stressing their \u2018 dangerousness\u2019 . In addition , the delegation noticed a wire cage in the staff office , in which the prisoners said they were systematically locked when interviewed by members of staff ... \u201d","The ORG called upon the NORP authorities to abolish \u201c the practice of systematically handcuffing men whenever they are taken out of their cell ... with immediate effect \u201d .","On DATE the Commissioner for Human Rights published a report on his visit to GPE from DATE , in which he inter alia noted that \u201c practically all [ his ] interlocutors , including heads of parliamentary political groups , representatives of law enforcement and civil society confirmed that torture was widespread in GPE \u201d ( paragraph CARDINAL of the report of CARDINAL DATE ) . During his visit to GPE in DATE , the Commissioner for Human Rights made the following observations in that context ( paragraph CARDINAL of the report published on DATE ) :","\u201c Ill - treatment by police in custody is a persistent problem in GPE , which has been raised in a number of reports of ORG for ORG . Reports by international non - governmental organisations suggest that the phenomenon is fed by a culture of police impunity . Complainants who make well - founded allegations of serious abuses often receive the standard response that \u201c there is no evidence of a crime \u201d . The vast majority of cases , however , both grave and minor , are not reported to the authorities at all because the victims fear retaliation by the police , or have no faith that any action will be taken . \u201d","DATE . The relevant extracts from the Appendix to the Recommendation , adopted at the PERSON meeting of ORG , read as follows :","\u201c ...","Instruments of restraint","CARDINAL The use of chains and irons shall be prohibited .","CARDINAL Handcuffs , restraint jackets and other body restraints shall not be used except :","a. if necessary , as a precaution against escape during a transfer , provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise ; or","b. by order of the director , if other methods of control fail , in order to protect a prisoner from selfinjury , injury to others or to prevent serious damage to property , provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority .","CARDINAL.CARDINAL ORG of restraint shall not be applied for any longer time than is strictly necessary .","CARDINAL NORP The manner of use of instruments of restraint shall be specified in national law ... \u201d","At a number of its meetings ORG has considered , pursuant to LAW , the measures adopted by ORG of GPE with a view to complying with the ORG \u2019s judgments concerning the issues of inhuman and degrading treatment of applicants and\/or the absence of an effective remedy whereby complaint might be made and a lack of procedural safeguards in police custody .","For instance , during the CARDINALth meeting on DATE such judgments were put on the ORG \u2019s agenda , namely ORG v. GPE ( no . CARDINAL\/CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL\/CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , DATE ) , PERSON ( no . CARDINAL\/CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , DATE ) , PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . GPE , DATE ) .","According to the material of the meeting ( see document ORG OJ \/ DH(CARDINAL)CARDINAL ) , ORG noted that since the events described in the judgments the NORP authorities had adopted a number of measures to prevent new , similar violations . However , in spite of those measures , \u201c the infliction of deliberate physical ill - treatment of detainees by police officers on duty , remains widespread in GPE \u201d . The Deputies further noted that a comprehensive \u201c action plan \/ action report \u201d was awaited from GPE , which should contain details of the measures envisaged or taken to combat abuse in police custody and the evaluation of how these measures addressed the violations found by the ORG .","Therefore , the consideration of the matter was postponed pending the submission of the \u201c action plan \/ action report \u201d by ORG .","At its CARDINALth meeting on DATE ORG adopted the guidelines setting out concrete measures which the member states should adopt to ensure that those responsible for acts amounting to serious human rights violations ( including violations of ORG , DATE , DATE and CARDINAL of the Convention ) were held to account for their actions and that victims of human rights violations had the right to an effective remedy .","Concern about the \u201c persistence of widespread use of torture \u201d was expressed by ORG in its concluding observations concerning GPE published in DATE .","At its CARDINAL session ( DATE ) ORG considered the fifth periodic report concerning GPE . The relevant extracts from its conclusions provide as follows :","\u201c ...","ORG is deeply concerned at allegations of torture and ill - treatment of suspects during detention , as well as reported abuses during the period between apprehension and the formal presentation of a detainee to a judge , thus providing insufficient legal safeguards to detainees ...","The ORG is concerned by the failure to initiate and conduct prompt , impartial and effective investigations into complaints of torture and ill - treatment , in particular due to the problems posed by the dual nature and responsibilities of the General Prosecutor \u2019s office , ( a ) for prosecution and ( b ) for oversight of the proper conduct of investigations . The ORG notes the conflict of interest between these CARDINAL responsibilities , resulting in a lack of independent oversight of cases where ORG office fails to initiate an investigation . Furthermore , there is an absence of data on the work of ORG office , such as statistics on crime investigations , prosecutions and convictions , and the apparent absence of a mechanism for data collection ...","The ORG is concerned at the current investigation system in which confessions are used as a principal form of evidence for prosecution , thus creating conditions that may encourage the use of torture and ill - treatment of suspects . The ORG regrets that ORG did not sufficiently clarify the legal provisions ensuring that any statements which have been made under torture shall not be invoked as evidence in any proceedings , as stipulated in the LAW ... \u201d","DATE . In its DATE report on human rights violations , ORG made the following observations in respect of GPE :","\u201c ... [ T]he pattern of torture and ill - treatment by law enforcement officials continued to persist from DATE , with the perpetrators rarely being brought to justice . Police officers reportedly punched , hit and kicked detainees and used various torture techniques on them , including suffocation .","Once initiated , investigations into cases of alleged abuse by police officers were slow and inconclusive . According to the Government , CARDINAL cases of abuse by law enforcement officials were reported , while CARDINAL police members were charged with such crimes in DATE . During DATE ORG reportedly received CARDINAL complaints concerning human rights abuses by law enforcement officials , and CARDINAL of them dealt with physical and psychological violence .","... \u201d","Amnesty International \u2019s DATE report referred to \u201c widespread and persistent allegations of torture and ill - treatment of detainees by law enforcement \u201d . Subsequent reports contained similar observations .","In a recent publication concerning the issue , ORG : ORG in GPE ( DATE ) , ORG noted that :","\u201c ...","According to some estimates , CARDINAL of people in GPE may be victims of police abuses DATE . Violations range from minor infringements of the criminal procedural code , to racial abuse , extortion , torture and other ill - treatment , and deaths in custody .","These abuses are encouraged by a culture of impunity for the police in GPE . Complainants who make well - founded allegations of serious human rights abuses all too often receive the standard response \u201c there is no evidence of a crime \u201d . The vast majority of cases , however , both grave and minor , are not reported to the authorities at all because victims fear retaliation by the police , or have no faith that any action will be taken .","... \u201d","It was concluded that \u201c CARDINAL key problems must be addressed [ by ORG ] as a priority \u2013 the lack of regular detention monitoring , the lack of independent investigations , and a reluctance to prosecute police officers \u201d ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-68136","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2005,"docname":"JOHTTI SAPMELACCAT RY AND OTHERS v. FINLAND","importance":3,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["There are CARDINAL applicants in the present case . The first applicant , ORG r.y . , is an association promoting PERSON culture . The other applicants , PERSON , PERSON , PERSON and PERSON , are NORP nationals of PERSON origin and living in PERSON , ORG and ORG , respectively . They are all members of the first applicant association . They are represented before the ORG by Mr PERSON , ORG Secretary , ORG , and PERSON , PERSON at ORG and PERSON . The respondent Government are represented by their Agent , Mr PERSON , Director , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","According to LAW , the PERSON , as an indigenous people , have the right to maintain and develop their own language and culture . The definition of culture includes their traditional sources of livelihood , that is to say reindeer herding , fishing and hunting .","In GPE a fishing right can be a so - called \u201c private fishing right \u201d , connected to the ownership of land . The properties in any CARDINAL village have fishing rights in the common water - areas of that village . There are also \u201c specific private fishing rights \u201d , which some properties have within the water - areas of other villages or within the ORG - owned water - areas . All these rights , as rights connected to the ownership of land , enjoy the constitutional protection of property .","In addition to private fishing rights , there are public fishing rights which are usually based on membership of a public community , for example a municipality , on the basis of public law . Such a fishing right does not enjoy the constitutional protection of property .","In the municipalities of ORG , ORG and ORG , that is to say in the S\u00e1mi Home District , there were no public fishing rights DATE .","As mentioned above , S\u00e1mi landowners have fishing rights in connection with their land ownership and the ORG owns the fishing rights in the ORG - owned water - areas . The fishing rights of S\u00e1mi people who do not own any land has been based on custom from time immemorial ( ylimuistoinen nautinta , urminnes h\u00e4vd ) . It entitles them to fish within the ORG - owned water - areas in the municipalities of ORG , ORG and ORG . The right is based on civil law and enjoys , as such , the constitutional protection of property .","LAW ( kalastuslaki , lagen om fiske ; CARDINAL ) , as amended on DATE , entered into force on DATE . According to the LAW , public fishing rights were extended to apply also in the municipalities of ORG , ORG and ORG . It was guaranteed by the amendment that the people living permanently in the municipality were entitled to enjoy public fishing rights within the ORG - owned water - areas .","Prior to the DATE amendment , LAW ( CARDINAL\/CARDINAL ) had been applied in the above - mentioned municipalities regardless of the fact that the CARDINAL LAW ( CARDINAL\/CARDINAL ) applied to all other parts of GPE . The DATE amendment did not affect the position in the municipalities of ORG , ORG and ORG as , according to ORG perustuslakivaliokunta , grundlagsutskottet ) of ORG ( eduskunta , riksdagen ) , questions concerning special fishing rights which enjoyed the constitutional protection of property and which mainly belonged to the PERSON people had to be settled before the law could be amended . Therefore LAW did not apply in the above - mentioned municipalities .","As from DATE , the public fishing right was extended to the area of the above - mentioned municipalities , maintaining \u201c the ancient right of the local people to fish within the ORG - owned water - areas without consideration \u201d . According to the applicants , the DATE Fishing Act did not , however , guarantee such a right to the \u201c local people \u201d , including also non - S\u00e1mi residents , as it was only granted to them by the DATE amendment .","The DATE amendment also includes provisions concerning restrictions on hooks allowed in the area . Those restrictions entered into force at DATE .","Section CARDINAL , subsections CARDINAL and CARDINAL ( CARDINAL )","\u201c Everyone is equal before the law . No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development . \u201d","Section CARDINAL ( CARDINAL\/CARDINAL ) reads as follows :","\u201c The property of everyone is protected . Provisions on the expropriation of property , for public needs and against full compensation , are laid down by an LAW . \u201d","Section CARDINAL , subsection CARDINAL ( CARDINAL ) reads as follows :","\u201c The PERSON , as an indigenous people , as well as the GPE and other groups , have the right to maintain and develop their own language and culture . Provisions on the right of the PERSON to use the PERSON language before the authorities are laid down by an LAW . The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an LAW . \u201d","The provisions above are equivalent , respectively , to Sections CARDINAL and CARDINAL and LAW , subsection CARDINAL , of the present LAW ( perustuslaki , grundlagen ; GPE ) .","Section CARDINAL reads as follows :","\u201c A private right to use a fishing site or a right to fish within the boundaries of another village or outside the boundaries of the village , based on custom from time immemorial , shall remain valid . The right to use a fishing site on the basis of custom from time immemorial shall , however , only be valid if the boundaries of the site have been clearly established .","If a right to use a fishing site or a right to fish in waters located in another village has not been recognised in proceedings for the establishment of the boundaries of those waters , any claim thereto must be brought to the competent district court within DATE from the date on which the decision on the boundaries has become final . \u201d","Section CARDINAL reads as follows :","\u201c Further provisions on the use of the state 's fishing rights and on fishing in state - owned waters , as well as on the management of such waters , shall be given by Decree , and in this respect the interests of the local population shall be a primary concern .","The fishing arrangements referred to in subsection CARDINAL above must nevertheless not endanger fish or prawn stock . \u201d","Section CARDINAL reads as follows :","\u201c A local inhabitant , especially where he or she has otherwise no fishing right , has the right to obtain a licence for fishing for personal or recreational purposes in waters administered by ORG . Such a licence may also be issued to other persons where this is possible without weakening the possibilities of the local inhabitants to fish .","Where found appropriate by ORG , a licence may also be issued for purposes other than those referred to in subsection CARDINAL above .","The fishing licences referred to in subsections CARDINAL and CARDINAL above shall not be so extensive in scope and number that the fish or prawn stock is endangered . \u201d","Section CARDINAL reads as follows :","\u201c The provisions of this Decree shall apply in the municipalities of ORG , ORG and ORG .","For the purposes of this Decree , \" LAW \" means LAW of DATE ( CARDINAL\/CARDINAL ) , as amended . \u201d","Section CARDINAL reads as follows :","\u201c The state provincial office shall set up an advisory board for each of the CARDINAL municipalities for DATE at a time , to discuss fishery matters relating to the water areas referred to in DATE , subsection CARDINAL above . The advisory boards shall have as their duties , within the limits of their competence , to give opinions , make proposals and take initiatives , as well as to perform other duties assigned to it in this LAW .","DATE , ORG and ORG shall request an opinion from each advisory board on the principles to be applied to fishing arrangements and to the issue of fishing licences . The opinion may only be derogated from by the authorities for special reasons . Each advisory board shall also be requested to provide an DATE report on plans concerning the management of fishing sites . \u201d","Section CARDINAL reads as follows :","\u201c An advisory board shall consist of CARDINAL members and their personal deputies . ORG , ORG ( saamelaisk\u00e4r\u00e4j\u00e4t , sametinget ) , the fishing districts , the municipality and the local associations of professional fishermen shall each appoint CARDINAL member and his or her personal deputy . Where the professional fishermen have not created any association , or the associations are not able to agree on the member representing them jointly , the municipality shall appoint CARDINAL of the candidates . The advisory board shall elect CARDINAL of its members as president and CARDINAL as vice - president .","The advisory board shall be convened by the president or , in his absence , by the vice - president , and its quorum is constituted by the president or vice - president and CARDINAL other members .","The work of the advisory boards shall otherwise be governed by the provisions on government committees . \u201d","Section CARDINAL reads as follows :","\u201c Permanent residents of the municipality carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood have the right to obtain a fishing licence free of charge for fishing in state - owned waters referred to in DATE , subsection CARDINAL above , located in their municipality of residence . Such a licence may also be issued , subject to a charge , to other persons where it is possible without weakening the fishing possibilities of the local inhabitants referred to above .","A licence may be withdrawn or fishing carried out under a licence may be prohibited for a given period of time where it is necessary for the purposes of planting of fish , fish culture , scientific research or other use or management of fishing sites . \u201d","Section CARDINAL ( CARDINAL\/CARDINAL ) reads as follows :","\u201c The state 's fishing sites ( valtion yksityiset kalastukset , statens enskilda fisken ) shall remain in the possession of the state in those areas where they have customarily been and still are in the state 's possession . Further provisions on the use of those sites and on the use of the fishing rights belonging to the state in state - owned waters shall be given by decree , and in this respect the interests of professional fishermen and the local population shall be a primary concern . Permanent residents of the municipalities of ORG , ORG and ORG , carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood , have nevertheless a right to obtain a fishing licence free of charge for fishing in state - owned waters located in the said municipalities .","The provisions of LAW CARDINAL above are , however , also applied to state - owned waters . \u201d","Section CARDINAL ( CARDINAL\/CARDINAL ) reads as follows :","\u201c A special right to a fishing place or to fish within the boundaries of another village or outside the boundaries of the village , which has been legally acquired on the basis of undisturbed possession since time immemorial or some other reason , will remain in force as of old . Undisturbed possession of a fishing place since time immemorial , however , is valid only if the boundaries of the place may be reliably shown .","If a right to a fishing place or to fishing in the waters of another village has not been accepted when demarcating the district boundary , any action concerning the matter shall be instituted in the general court of first instance within DATE of the date when the demarcation has gained legal force .","Where fishing rights have been accorded by a court decision or in some legal manner other than as provided above in this LAW , such a decision shall continue to be observed . \u201d","Section CARDINAL ( CARDINAL\/CARDINAL ) , subsections CARDINAL and CARDINAL , read as follows :","\u201c This Act repeals :","LAW ( DATE ) issued on DATE ;","the Decree of DATE on the enforcement and the application of LAW ( CARDINAL\/CARDINAL ) ; and","the Decree of DATE on the use of the private fishing grounds of the ORG and on fishing in fishing waters belonging to the ORG ( CARDINAL\/CARDINAL ) , as amended ; as well as","LAW of DATE ( CARDINAL\/CARDINAL ) \u00a7 CARDINAL paragraph CARDINAL .","What has been enacted in paragraph CARDINAL subparagraph CARDINAL shall not apply to the area of the municipalities of ORG , ORG and ORG for which areas LAW ( CARDINAL ) as amended remains in force . \u201d","Section CARDINAL ( CARDINAL\/CARDINAL ) reads as follows :","\u201c A person belonging to the local population who does not have fishing rights based on a proprietary right or other particular legal relationship shall be entitled to receive a licence for fishing in a water area referred to LAW paragraph CARDINAL belonging to the ORG .","When the ORG is a joint owner of common fishing waters , it may grant the licence referred to above concerning the fishing rights corresponding to its share . The fishing corporation concerned shall be informed by an authority of the granting of the licence . A fee fixed according to the basis confirmed by the fishing corporation shall be paid for the licence .","When the licences referred to above in this section can not be granted to all who want them , priority shall be given to persons engaging in fishing professionally or for domestic needs . \u201d","Section PERSON ( CARDINAL\/CARDINAL ) reads as follows :","\u201c A licence entitling permanent residents of the municipalities of ORG , ORG and ORG to carry out fishing referred to in LAW , subsection CARDINAL of LAW , shall be issued by the authority referred to in section CARDINAL , subsection CARDINAL of the LAW or , in accordance with instructions issued by it , by its subordinate regional office or other entity recognised by the said authority . The licence may not be given for DATE at a time . A right based on a licence is not transferable .","Licences referred to in subsection CARDINAL of section CARDINAL above may be issued in the municipalities of ORG , ORG and ORG where this does not weaken the fishing possibilities of those carrying out fishing under a licence referred to in LAW , subsection CARDINAL of LAW . \u201d","Section CARDINAL ( CARDINAL\/CARDINAL ) reads as follows :","\u201c The obligation to pay the fishery fee laid down in LAW paragraph CARDINAL of LAW shall concern all persons DATE who take directly part in the catch . The fishery fee shall not be collected from those persons who participate in catch only as assistants without taking part in the handling of the fishing gear in connection with the catch .","Those under DATE who under LAW paragraph CARDINAL of LAW shall be allowed to engage in catching fish and crayfish without paying the statutory fishery fee or LAW paragraph CARDINAL of LAW without paying the fee , shall prove their age in a reliable way , when necessary . \u201d","\u201c ... the provisions of LAW and LAW , concerning fishing rights based on land - ownership , are similar in substance . At the time of enactment of LAW , no final court decisions had been given on the water district boundaries in the municipalities of ORG , ORG and ORG . Therefore , the existing specific rights to a fishing site , attached to real estates , were also unclear . For these reasons , the provisions of the DATE LAW remained in force for the CARDINAL northernmost municipalities .","Thereafter , the decisions on the water district boundaries have become final and any specific fishing rights attached to real estates have been established . There are no longer any unsolved questions of ownership of water areas in respect of individual real estates , and therefore it is no longer necessary to apply the DATE LAW in the area in question .","The state - owned fishing sites are of great importance for the local population in the municipalities of ORG , ORG and ORG . In the absence of decisions on the establishment of water district boundaries , there were unsolved questions in respect of the ownership of the water areas . Therefore , the inhabitants of the said municipalities had a possibility to fishing free of charge in the waters located in their municipalities of residence . In the proceedings for the establishment of water district boundaries , most of the waters were established as belonging to the state . Thus , the state also held the fishing rights attached to the waters , except for certain specific fishing rights . In order to provide for the possibilities of the local inhabitants to fish , it was provided in the decree implementing the DATE LAW , which entered into force in DATE , that the local inhabitants of the CARDINAL northernmost municipalities , who were carrying out professional fishing , fishing for personal purposes or other natural means of livelihood , had the right to obtain a fishing licence free of charge for fishing in the state - owned waters located in their municipalities of residence . The local inhabitants were also provided with a possibility to participate in decision - making concerning fishing and management of fish stock in respect of those waters , by means of setting up advisory boards for each of the CARDINAL municipalities . These advisory boards had , inter alia , the responsibility of reviewing fishing arrangements and principles concerning the issue of fishing licences . ORG , ORG , the fishing districts , the municipality and the local associations of professional fishermen appointed members to ORG . ...","It is proposed that the possibility for the local inhabitants of ORG , ORG and ORG municipalities to fish in the state - owned waters be maintained . Therefore , the present proposal contains provisions which are currently included in a decree , concerning the right of the local inhabitants carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood to fish free of charge in the state - owned waters ( LAW ) . ...","The application of LAW in the municipalities of ORG , ORG and ORG does not remove or change the fishing rights that their inhabitants have in the state - owned waters which have an established legal basis , such as the basis of custom \" from time immemorial \" . Most of the local inhabitants carrying out traditional means of livelihood in the said municipalities represent the S\u00e1mi population . In order to secure the fishing rights of the local inhabitants carrying out professional fishing , fishing for personal purposes or other traditional means of livelihood , it is proposed that the LAW contain those provisions on the right to fish free of charge in the state - owned waters which are now included in a decree . Thus , the existing provisions would be included in an LAW of ORG instead of a decree , but the proposal does not intend to change the substance of the provisions .","\u201c On different occasions ( opinions CARDINAL\/CARDINAL , DATE and CARDINAL ) ORG has found that local inhabitants of the CARDINAL northernmost municipalities , who have no titles to land , have such fishing rights as enjoy the protection of possessions guaranteed by the LAW .","In the opinion given in DATE , ORG observed that \" the bill subject to debate , concerning fishing in the CARDINAL northernmost municipalities , entailed weakening of the traditional fishing rights of their residents who had no titles to land but who earned a significant part of their living from traditional means of livelihood , of whom most represented the PERSON population , as a licence would thereby be necessary for fishing and it would be subject to a charge . \" In the ORG 's view , the bill had to be considered in accordance with the procedure for the enactment of the LAW .","The opinion given by LAW in DATE concerned the Government PERSON for the enactment of the CARDINAL LAW . The ORG drew attention to the fact that it was necessary to separately solve the unresolved questions concerning fishing in the northernmost municipalities without delay . Thereafter , the Law and ORG proposed that the fishing legislation - the DATE LAW - in force at the material time should remain in force for the said municipalities ( Report of ORG DATE ) . Thus , a provision based on that proposal , subsection CARDINAL of section CARDINAL , was included in the new LAW .","In DATE , the opinion of ORG concerned a Government Bill in which it was proposed , inter alia , that section subsection CARDINAL of section CARDINAL of the DATE LAW be repealed . On that occasion , the ORG was of the view that the bill entailing repealing of the said provision had to be discussed in accordance with the procedure provided for in section CARDINAL of LAW . The ORG further noted , referring to the ILO Convention No CARDINAL concerning ORG , adopted in DATE , that such an amendment should not be made even if it was made in accordance with the procedure applied to the enactment of the LAW . ...","Extending the scope of application of LAW to concern the CARDINAL northernmost municipalities entails harmonisation of legislation which can be said to be in conformity with the principles enshrined in section CARDINAL of LAW and with the requirements of foreseeability . A general constitutional issue relating to the extension of the scope of application is the question of public fishing rights as a restriction on the enjoyment of possessions . Referring to earlier opinions , the ORG finds that in this regard the bill may be discussed in accordance with the procedure applied to the enactment of ordinary acts of ORG ( Opinions of the Constitutional Law Committee CARDINAL\/CARDINAL and CARDINAL ) . ...","Subsection CARDINAL of section CARDINAL means that the local inhabitants in the CARDINAL northernmost municipalities maintain their possibility to fish free of charge in the state - owned waters , based on custom . In the ORG 's view , this kind of a legislative measure conforms to the requirements attached to the protection of possessions based on custom \" from time immemorial \" and on an extensive right of enjoyment , which have been observed in earlier opinions of the ORG , concerning the traditional rights of inhabitants who do not have titles to land . For this reason , the ORG is of the view that the bill is also acceptable in the light of the provisions in section CARDINAL of LAW . As regards the status of the S\u00e1mi people , particularly in view of the provisions in subsection CARDINAL of section QUANTITY , the ORG has paid attention to the fact that fishing has been part of the traditional way of life of the PERSON without any restrictions as to their place of residence . Therefore , the ORG finds it important to clarify the last part of the provision in subsection CARDINAL of CARDINAL so that the fishing right is not only dependent on the place of residence but is valid in the areas of all CARDINAL northernmost municipalities where the person is resident in CARDINAL of them . ...","Article CARDINAL of LAW provides for the rights of minorities . For example in the light of the practice of ORG monitoring the implementation of the LAW , it may be observed that the exercise of fishing rights of the PERSON is part of their minority culture . The proposed amendment may not be considered to entail prevention of fishing as part of the PERSON culture in the sense of constituting a violation of LAW . In this respect , reference may be made to LAW , which is based on the premise that the permanent residents of the said municipalities have the right to obtain a fishing licence free of charge . ...","The Government PERSON does not interfere with questions of ownership . The purpose of the proposed provisions is , inter alia , to establish the right of permanent residents of the municipalities of ORG , ORG and ORG to obtain a fishing licence free of charge for fishing in the state - owned waters , on certain conditions . The PERSON is not restricted to the PERSON as a population group but concerns all residents of the said municipalities . Apart from permanent residence , it is further required for the existence of such a right that the residents in question carry out professional fishing , fishing for personal purposes or other traditional means of livelihood . In the ORG 's view , these conditions are , however , of such a nature that they have relevance in particular for the PERSON . Therefore , it may be observed that the PERSON partly contributes to the protection of the right of the PERSON to use the water areas in question . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115004","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2012,"docname":"CASE OF K\u00dcCHL v. AUSTRIA","importance":4,"conclusion":"No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicant was provost of the GPE monastery and principal ( Regens ) of the PERSON seminary , where future NORP priests are trained . He resigned from his post as principal on DATE .","In the issue of the DATE news magazine ORG an article was published on searches carried out by police in the PERSON seminary . According to the article , police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet . The article further stated that , according to rumours , police had also found photographs showing seminarians engaging in homosexual activities , and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority . The article was accompanied by a photograph of the applicant , showing him standing in a garden , and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian . He denied involvement in any such incidents .","NORP In its issue of CARDINAL DATE ORG published an article entitled \u201c Go on ! \u201d ( Trau dich doch ) . The sub - heading read \u201c NORP scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray . First the principal and now the deputy principal have resigned . High - ranking dignitaries expect PERSON [ the bishop of the diocese ] to be removed from office . \u201d","The article stated that the applicant and the deputy principal had had sexual relations with seminarians and that CARDINAL of them had regularly spent DATE or longer periods with the applicant at the GPE monastery . It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported DATE . The article further reported that some seminarians had downloaded pornography and child pornography onto their computers . According to the article , the existence of homosexual relations was well - known within the seminary and was even known to the bishop , who had tried to \u201c hush up \u201d the case at first . The article contained a photograph showing the applicant with his left arm around one of the seminarians , holding the DATE \u2019s wrist with his left hand and with his right hand on the man \u2019s crotch . This picture had been taken by CARDINAL of the seminarians at a birthday party and the applicant was shown looking into the camera , apparently aware that he was being photographed . In the article the applicant was identified by name while the ORG identities were not disclosed . Likewise , in the published photograph , the applicant \u2019s face was visible while that of the seminarian was blurred . The article was also accompanied by a statement from the applicant saying that the photograph could be interpreted in different ways .","On DATE the applicant initiated proceedings under LAW ( Mediengesetz ) against ORG , the publisher of ORG , in relation to the article published on DATE . Relying on sections CARDINAL and CARDINAL of the said LAW , he requested compensation for defamation ( \u00fcble GPE ) and for the violation of his strictly personal sphere ( h\u00f6chstpers\u00f6nlicher Lebensbereich ) caused by the publication of the photograph and the impugned article , especially the following passages :","\u201c \u2018 NORP scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray.\u2019 ; \u2018 A painful truth : PERSON \u2019s principal engaged in sex with subordinates , also PERSON \u2019s private secretary and legal adviser ... \u2019 ; \u2018 Photos showing , among others , seminarians from PERSON in kinky situations , in some cases with their superiors ... and because they were doing it with the boss and his deputy too , it was all quite normal and they felt perfectly safe ... \u2019 ; and \u2018 In DATE of DATE principal PERSON allegedly performed a kind of \u2018 sacrament of GPE DATE and NORP priest ORG in a PERSON restaurant.\u2019 \u201d","The publisher of ORG replied that the content of the article was true . The company also argued that in the light of ORG position condemning homosexuality , and the fact that the applicant was responsible for the training of future priests in the seminary , the public had an interest in knowing about the facts published in the article and there was a direct connection with public life . The article was thus lawful by virtue of the right to freedom of expression guaranteed by LAW .","On DATE , after holding several hearings at which evidence was heard from a number of witnesses , ORG ( PERSON , hereinafter \u201c the Regional Court \u201d ) dismissed the applicant \u2019s request for compensation .","ORG observed that a large percentage of readers of the DATE ORG that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion . Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians , and that there existed photographs to support this . The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts . It represented the applicant with his left arm around the seminarian and his hand on the man \u2019s crotch and conveyed the impression that the latter consented to this close embrace .","Giving a detailed evaluation of various witness statements , ORG found it established that the applicant had had consensual homosexual relationships with several seminarians , one of whom had repeatedly spent DATE at GPE monastery ; this had led to an explicit instruction from Bishop PERSON prohibiting such visits by seminarians . Furthermore , the court found that the applicant had spent DATE with a seminarian during which they shared an apartment in a hotel . It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of \u201c sacrament of marriage \u201d on CARDINAL seminarians . Moreover , the statements of the witnesses had confirmed that the published photograph had been taken in the applicant \u2019s apartment at GPE monastery during a birthday party for CARDINAL of the seminarians . ORG therefore held that the facts contained in the article were in essence true .","Owing to the considerable importance of ORG as a role model , the public had a great interest in being informed about what was going on within the ORG . The public also had an interest in knowing what happened in the seminary , especially since it had become known that pictures containing child pornography had been downloaded from the Internet . The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life . The applicant , as the head of the seminary , was a public figure in that capacity . Even though the impugned picture had been taken in his private residence there was a connection to his public life . While accusing a dignitary of ORG of having homosexual contacts constituted the actus reus of defamation within the meaning of section CARDINAL of LAW and exposed his strictly personal sphere within the meaning of section CARDINAL of LAW , the publisher had proved that the reported facts were essentially true . Accordingly , the applicant \u2019s claim for compensation had to be dismissed .","The applicant lodged an appeal on points of law and fact with ORG ( Oberlandesgericht ) . ORG , after holding a hearing , dismissed the appeal in a judgment of CARDINAL DATE .","ORG upheld the judgment of ORG , ruling that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true . Regarding the complaint concerning the performance of a sort of sacrament of marriage , ORG found that it had not been proven that this allegation was true ; however , the allegation in question made up only a minor part of the article and thus would not render the judgment void . Furthermore , ORG held that , in reporting on photographic evidence of seminarians in \u201c kinky situations \u201d , the publisher had provided proof that the statements were true . The average reader of the magazine would understand the term \u201c kinky \u201d to mean a deviation from what was considered normal , which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing , especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as sinful . ORG went on to state as follows :","\u201c The court can not accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life . ORG , to which the majority of the NORP population belongs and which , according to LAW ( BGBl . II No . CARDINAL\/CARDINAL ) , has public - law status , has a level of importance in GPE going beyond that of a small association , as is clear from the overall content of the ORG and the circumstances in which it was ratified . Accordingly , conduct on the part of ORG dignitaries which is in flagrant contradiction with NORP teachings may very well be of public interest , particularly where DATE as in the present case \u2013 homosexual contacts take place and are maintained , albeit on a consensual basis , between staff and students in an educational establishment and between students themselves . ORG strives for acceptance and credibility among the public at large , and the activities of a principal and a deputy principal , particularly those in charge of a training college for future priests , are directly related to public life . ORG is engaged in public relations work in many spheres and regularly makes its views on ( sexual ) morality known to the population as a whole , with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach , condemning homosexuality as a sin in public while practising it in private , even between staff and students . It should also be taken into consideration that the teachings of ORG on the subject of homosexuality are contrary to the fundamental right to sexual self - determination under LAW and to the prohibition on discrimination ; hence , on this basis also , there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their ORG \u2019s teachings on sexual morals . This is even more so where the reports concern homosexual contacts between a teacher and his students . Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students . The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law .","The exposure and public condemnation of such misconduct is thus in any event in the public interest ; the same is true of the reports identifying those concerned , without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of \u201c public watchdog \u201d . The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails . The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the ORG ; ORG has an important and , in some respects even a ORG role , and the credibility of its officials , who demand moral standards from the population and compliance with the ORG \u2019s rules of community life , occupies an important position in that regard . In particular , the fact that the events involved students who , as future officials of ORG are supposed to be taught these moral precepts by example , lends those events a public - interest dimension extending beyond the ORG itself and affects all sections of the population ... \u201d","ORG concluded that since the article had reported essentially true facts and there was a public interest in their being reported , ORG had rightly rejected the applicant \u2019s request for compensation . The judgment was served on the applicant \u2019s counsel on DATE .","On DATE , after publication of the first article in ORG ( see paragraph CARDINAL above ) , the applicant brought proceedings against the publisher and the editor - in - chief under LAW ( Urheberrechtsgesetz ) and LAW ORG ) . Those proceedings are the subject of application no . CARDINAL\/CARDINAL , PERSON and PERSON v. GPE . They are summarised here , in so far as is necessary for the examination of the present case .","Relying on section CARDINAL of LAW the applicant asked ORG ( ORG ) to order the publisher of ORG and its editor - in - chief to","( i ) refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and","( ii ) refrain from publishing photographs of the applicant which violated his legitimate interests , especially in connection with allegations of unwanted homosexual advances involving abuse of authority , which were damaging to his honour and reputation .","The applicant also requested ORG to issue an interim injunction prohibiting the publisher and the editor - in - chief of ORG from publishing the above - mentioned statements and pictures .","After publication of the second article in the issue of ORG , showing for the first time the photograph of the applicant with his hand on the seminarian \u2019s crotch , the applicant notified ORG of the further statements contained in that article and of the fact that the photograph had been published . He repeated the requests made on DATE .","In so far as relevant in the context of the present case , the applicant \u2019s request for an interim injunction was rejected by ORG , which gave its decision on DATE , and by ORG , which gave its decision on DATE .","In a decision of DATE ORG varied the lower courts\u2019 decisions , granting point ( ii ) of the applicant \u2019s request for an interim injunction . The publisher and the editor - in - chief of ORG were thus prohibited from publishing photographs of the applicant , in particular in connection with allegations of unwanted homosexual advances involving abuse of authority , which were damaging to the applicant \u2019s honour and reputation . However , ORG dismissed point ( i ) of the applicant \u2019s request , namely that the defendants be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the applicant having homosexual contacts or appeared to show that he was homosexual .","ORG ( Oberster Gerichtshof ) held that even the publication of true statements was capable of interfering with a person \u2019s right to privacy and thus might become unlawful . In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information . Referring to the ORG \u2019s case - law under LAW , ORG noted the importance of freedom of the press , in particular where the latter reported on issues of general interest . In the present case , information about the homosexuality of officials of ORG was an important issue and as such was often the subject of public attention and discussion . It was the media \u2019s task to report and comment on actual cases . Thus , the applicant \u2019s interest was outweighed by the publisher \u2019s right to publish the statements , the truth of which was not in dispute .","As to the publication of the photograph , ORG held as follows :","\u201c CARDINAL . The publication of images that would cause injury to legitimate interests is prohibited ( section CARDINAL ) of LAW ) . The injury must arise out of the actual publication of the image ( ORG ) . However , not only the image itself must be assessed , but also the manner of its dissemination and the context in which it is set ( PERSON ) . The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection ( CARDINAL ORG CARDINAL\/CARDINALy = MR DATE , CARDINAL with further references ) .","NORP On the basis of these principles , the interests of the claimant in the present case should be considered worthy of protection , contrary to ORG view .","The accompanying text portrays the claimant in a negative light . He is neither a \u2018 figure of contemporary society \u2018 par excellence \u2019\u2019 ( to use the terminology of the NORP case - law ) nor a \u2018 public figure\u2019 ( the term used in NORP legal practice ) whose appearance was already known to the general public before the picture was published ( CARDINAL ORG CARDINAL\/CARDINAL ) . It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text , which is damaging to the honour of the person concerned ( \u2018 pillorying effect\u2019 ) . In such cases , therefore , publication of the picture can be justified only if , after the required weighing of interests , the interest of the publisher in publishing is found to prevail ( RIS - Justiz RSCARDINAL ) . However , that is not the case here . The protection of the intimate sphere of the claimant \u2019s private life carries greater weight in this case than the public interest in being informed of the image , in contrast to the case already examined concerning the text of the article . Of course , there is some force to ORG argument that publication was designed to some extent to \u2018 prove the claimant guilty\u2019 after he had denied the accusations as \u2018 ORG , and thus to allow the public to make up its own mind on the basis of the photograph . In ORG view , however , this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant \u2019s private life and providing documentary \u2018 evidence\u2019 of the allegations denied by the claimant . It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by LAW ORG . If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the LAW , then this must also apply in principle to members of religious organisations and ORG officials , even if the practice of that sexual freedom is contrary to the ORG \u2019s teachings . Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree . There is no overriding interest for the public at large to be informed of the claimant \u2019s appearance and to identify him via publication of his photograph . Even when publication takes place in connection with a criminal offence , the principle of proportionality of the interference applies . Likewise , even a genuine need to inform must not go beyond what is strictly necessary , so that it can not be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person ( RIS - PERSON ) . The interest in dissemination of a picture can only take precedence if the picture has a particular news value \u2013 for instance , to warn the public about an escaped criminal ( CARDINAL ORG CARDINAL\/CARDINAL = SZCARDINAL CARDINAL Ob CARDINAL\/CARDINAL ) . In any case , the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal . The interest in being informed can be sufficiently met without publication of an image , simply by reporting the facts and referring to the existence of a photograph ( several photographs ) as evidence . \u201d","On DATE the applicant narrowed his previous claim to the publication of pictures , amended the wording of the injunction sought and added a claim for damages . He thus requested the court to order the publisher of ORG and its editor - in - chief to refrain from publishing photographs of him which violated his legitimate interests , especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority , and\/or of engaging in sexual antics or \u201c kinky \u201d situations with seminarians or similar allegations .","In a judgment of CARDINAL DATE ORG rejected the claims .","In a judgment of CARDINAL DATE ORG partly granted the applicant \u2019s appeal . Relying on section CARDINAL of LAW , it prohibited the publication of photographs of the applicant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians , especially involving abuse of authority , and of engaging in sexual antics or \u201c kinky \u201d situations with seminarians or similar accusations . However , it dismissed the claim for compensation .","ORG summarised the content of the articles published in ORG on CARDINAL , DATE and DATE and the reasoning set forth by ORG in its decision of DATE in the interim injunction proceedings . It went on to state as follows :","\u201c No factual circumstances came to light in the main proceedings which would cause ORG to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings .","It was established that the photograph was taken in PERSON monastery at the birthday party of CARDINAL of the seminarians , attended by the claimant and CARDINAL students of the seminary . The party was held in a meeting room and a \u2018 reception GPE of the apartment made available to the claimant in his capacity as provost of the monastery .","Protection of the private sphere encompasses all matters which , on the basis of their information content , are typically classified as private . This covers individuals in their home , family or other environment removed from the public gaze ( Neukamm , ORG in GPE , CARDINAL ) . The right to protection of CARDINAL \u2019s private sphere encompasses the spaces in which the individual can rest , relax or simply let go . This includes any LOC from which the individual can exclude outsiders and escape the public gaze ( Neukamm , loc . cit . , CARDINAL ) .","On that basis , there can be no doubt that the birthday party in the claimant \u2019s apartment fell within the private sphere , despite the fact that it was attended by seminarians and took place ( partly ) in a \u2018 reception GPE in the claimant \u2019s apartment .","Neukamm , loc . cit . , CARDINAL ) . Hence , it is beyond dispute that the photograph in question falls ( exclusively ) within the claimant \u2019s private sphere .","Furthermore , ORG previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned .","The publication of pictures depicting private conduct is not justified on the grounds of the public \u2019s interest in being informed ( Neukamm , op . cit . , CARDINAL , and ECtHR judgment of CARDINAL , application no . CARDINAL \u2013 News Verlag GmbH ) . This applies also to articles concerning private - life matters ( Neukamm , op . cit . , CARDINAL ) . If the publication of photographs serves the public \u2019s interest in being informed , that interest must be weighed against the personality rights of the person depicted . As a general rule , the latter should prevail ( Neukamm , op . cit . , CARDINAL ) . \u201d","ORG also upheld ORG decision in so far as the latter had dismissed the applicant \u2019s claim for damages . It noted that damages under LAW were to be awarded only if the general requirements laid down in LAW were met . In particular , it was necessary for the publisher to have acted culpably , with at least minor negligence . In the present case , the defendants had based their decision to publish the photograph on an arguable legal opinion . It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the applicant \u2019s legitimate interests . In the preliminary injunction proceedings ORG and even ORG had come to the opposite conclusion , holding the view that the publication of the picture had an information value of its own , while ORG had overturned their decisions . In these circumstances , the defendants were entitled to believe that the publication of the picture was admissible , and they had therefore not acted culpably .","The applicant and the defendants lodged extraordinary appeals on points of law with ORG .","ORG rejected the extraordinary appeals in a judgment of DATE , holding that the prerequisite for it to deal with the case , namely a question of law which was of fundamental importance for the unity of the law , was not met . With regard to the defendant \u2019s appeal it noted that it had already given detailed reasons in its decision of DATE explaining why , as far as the publication of the photograph was concerned , the applicant \u2019s interests in the protection of his private sphere under LAW outweighed the freedom to impart information protected by LAW in the circumstances of the present case . ORG had followed that reasoning in the main proceedings .","Finally , ORG dismissed the defendant \u2019s argument that the ORG decisions in the proceedings under sections CARDINAL and CARDINAL of LAW were binding on the courts in the present case . It held that a decision taken under sections DATE CARDINAL of LAW did not resolve a preliminary question ( ORG ) in relation to the claim under section CARDINAL of LAW . There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section CARDINAL of LAW while on the same facts dismissing a compensation claim under sections CARDINAL and CARDINAL of LAW . The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section CARDINAL of LAW .","Section CARDINAL of LAW provides for the strict liability of the publisher , inter alia in cases of defamation . The victim can thus claim damages from the publisher . Section CARDINAL reads as follows :","\u201c ( CARDINAL ) Where a medium publishes statements which constitute the actus reus of disparagement , insult , derision or defamation the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered ... \u201d","( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply ...","NORP in the case of defamation","( a ) [ where ] the statements published are true or","...","( CARDINAL ) Where the publication concerns the strictly personal sphere , a claim under subsection CARDINAL shall be excluded only on the grounds set forth in ... subsection CARDINAL ) ... ; in the case of subsection CARDINAL ) , this shall not apply where the published facts are directly related to public life . \u201d","Section CARDINAL of LAW provides for a claim for damages in cases of interference with the strictly personal sphere of an individual \u2019s life . It reads as follows :","\u201c ( CARDINAL ) If the strictly personal sphere of an individual \u2019s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned , he or she shall have the right to claim compensation from the media proprietor ( publisher ) for the damage sustained . ...","( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply where","( i ) ...","( ii ) the statements published are true and are directly related to public life ;","( iii ) ... \u201d","For the purpose of LAW of LAW \u201c defamation \u201d is to be understood as defined in LAW ) , which reads as follows :","\u201c ( CARDINAL ) Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...","( CARDINAL ) Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...","( CARDINAL ) NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . \u201d","Section CARDINAL of LAW , in so far as relevant , reads as follows :","\u201c ( CARDINAL ) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or , if they have died without having authorised or ordered publication , those of a close relative . \u201d","Article CARDINAL of LAW ( Allgemeines B\u00fcrgerliches Gesetzbuch ) provides as follows :","\u201c ( CARDINAL ) Anybody who , as a result of defamation , suffers real damage or loss of profit may claim compensation .","( CARDINAL ) The same shall apply if anyone disseminates allegations which jeopardise a person \u2019s reputation , income or livelihood , the untruth of which was known or should have been known to him or her . In this case there is also a right to request a retraction and the publication thereof ... \u201d","The ORG refers to this resolution , adopted by ORG of ORG on DATE . Its relevant passages are reproduced in GPE v. GPE ( no . CARDINAL ) ( [ ORG ] , ORG . CARDINAL and GPE , \u00a7 DATE , ECHR DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92665","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF KORDOS v. POLAND","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant \u2019s husband died on a pedestrian crossing after being hit by a car . The car was being driven by a certain PERSON","On DATE the applicant filed a claim against PERSON and the \u201c ORG with the ORG , seeking compensation in the amount of MONEY ( ORG ) . At the same time the applicant requested the court to give her a full exemption from the costs of the proceedings . She submitted that she received only a small pension and that her health had significantly deteriorated .","On DATE ORG partly granted the applicant \u2019s request . It exempted her from the court fee for processing her claim ( wpis od pozwu ) .","On DATE the \u015arem ORG in the course of criminal proceedings convicted PERSON of having caused a traffic accident which resulted in a fatality and sentenced him , inter alia , to a suspended prison term .","In DATE the applicant filed her amended claim with ORG . She sought an award of PLN CARDINAL,CARDINAL in compensation and ORG CARDINAL as a supplementary DATE allowance .","On DATE the ORG awarded the applicant LAW to be paid jointly and severally by the defendants and dismissed her further claims . The applicant was ordered to pay the costs of the defendants in the amount of ORG .","On DATE the applicant lodged an appeal against the firstinstance judgment . On DATE ORG ordered the applicant to pay ORG MONEY in court fees for proceeding with her appeal .","On DATE the applicant asked ORG for an exemption from the relevant fees . She submitted that her income consisted only of a DATE pension in the amount of LAW and that she did not have any property or valuable movables . She also claimed that her health had significantly deteriorated since her husband \u2019s death .","On DATE the ORG dismissed her request . It considered , in so far as relevant :","\u201c ( ... ) It should be underlined that the obligation to demonstrate the preconditions for an exemption from the costs rests with the claimant .","Examining the claimant \u2019s request , the court considers that it can not be granted . The claimant did not demonstrate that she was unable to bear the [ relevant ] costs without entailing a substantial reduction in her and her family \u2019s standard of living .","A person requesting exemption from costs should submit a declaration of means that she is unable to pay the costs , including detailed information about her family status , her assets and her income , which have to be supported by relevant documents .","In a case where a person seeking exemption from costs has a representative who is an advocate , that representative has an obligation to inform his client about the requirements attached to a declaration of means and the necessary information which must be included therein . In that case , the court is not required to summon the representative of a party seeking exemption from costs to submit an additional declaration .","For these reasons , considering that the claimant \u2019s request did not contain the required declaration of means , which implies that there is no information enabling [ the court ] to examine the merits of the request , the court , pursuant to LAW , held as in the operative part of the decision . \u201d","The applicant appealed . She relied on the same arguments as before ORG .","On DATE the ORG dismissed her interlocutory appeal . It found , in so far as relevant :","\u201c ...","ORG considers that the grounds of appeal do not justify a departure from the findings of the first - instance court in respect of the appellant \u2019s ability to pay the [ relevant ] costs .","ORG draws attention to the fact that the claimant received the whole amount of compensation awarded [ by the first - instance court ] . Thus , there were no grounds to hold that she was unable to bear the costs without a reduction in her own necessary support .","... \u201d","As a result , the applicant was prevented from lodging an appeal against the judgment of the Pozna\u0144 Regional Court of DATE .","The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL\/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . CARDINAL\/CARDINAL ) , \u00a7 \u00a7 CARDINAL - CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-114098","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2012,"docname":"CASE OF P. AND S. v. POLAND","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Educational supervision);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the first applicant went with a friend to ORG in GPE . She said that she had been raped on DATE by a boy of her own age . The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary . Dr PERSON reported the case to the police and notified the first applicant \u2019s parents .","DATE , after reporting that an offence of rape had been committed , the applicants attended at ORG no . CARDINAL in GPE , accompanied by a female police officer . The second applicant gave her consent for an examination of her daughter to be carried out . The first applicant was in a state of emotional shock . At the hospital , psychological help was offered to her . Bruises on her body were confirmed by a family doctor DATE after the alleged event took place , DATE .","The rape resulted in pregnancy . The applicants decided together that an abortion would be the best option , considering that the first applicant was a very young minor , that the pregnancy was the result of forced intercourse , and that she wanted to pursue her education .","On DATE the first applicant was questioned by the police . Her mother and the alleged perpetrator \u2019s defence lawyer were present during the questioning . The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance .","On DATE ORG , referring to section CARDINAL ( a ) item CARDINAL in fine of ORG ) ( \u201c the DATE LAW ) ( see paragraph DATE below ) issued a certificate stating that the first applicant \u2019s pregnancy had resulted from unlawful sexual intercourse with a minor DATE .","The second applicant went to ORG in GPE to ask for a referral for an abortion . She was advised there to contact PERSON , the regional consultant for gynecology and obstetrics . Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary .","The second applicant also went to another public hospital in GPE ( the Jan Bo\u017cy hospital ) and contacted a chief physician there , PERSON , who suggested that the applicants meet with a NORP priest . The second applicant refused .","The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to \u201c get her daughter married \u201d . She left his office , but returned shortly afterwards as she was afraid that without the doctor \u2019s referral it would not be possible to obtain an abortion . He told her to report to the PERSON hospital .","On CARDINAL DATE the applicants reported to that hospital . They were received by the acting chief physician . They clearly stated their intention to have the pregnancy terminated . They were told that they would have to wait until the head of the gynecological ward , PERSON , returned DATE . They were told that it would be best for the first applicant to be hospitalised , with a view to blood and urine tests and an ultrasound scan being carried out . On DATE the first applicant was admitted to that hospital .","On CARDINAL DATE Dr PERSON returned DATE and told the applicants that she needed time to make a decision . She asked them to return on DATE . She then called the second applicant separately to her office and asked her to sign the following statement : \u201c I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter \u2019s death . \u201d On DATE the first applicant was discharged from the hospital for DATE .","On TIME the first applicant returned to the hospital alone as her mother was working .","The applicants submitted that Dr PERSON took the first applicant for a talk with a NORP priest , GPE The first applicant was not asked what her faith was or whether she wished to see a priest . During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it .","The Government disagreed with the above account by the applicants . They stated that the girl had wished to see the priest .","During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term . The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter . The priest asked her to give him her mobile phone number , which she did . She was given a statement written by PERSON to the effect that she wanted to continue with the pregnancy and she signed it . The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest .","When the second applicant arrived later , the priest spoke to her . She told him that it was the family \u2019s decision to terminate the pregnancy . Dr PERSON told the second applicant that she was a bad mother . She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy . An argument took place between the doctor and the second applicant . The first applicant , who was present in the room , started to cry . The doctor said that she would adopt both the first applicant and the baby .","Subsequently , PERSON told the applicants that she would not perform the abortion , that under communism when abortion had been freely available no one had made her perform abortions , and that no doctor would have given permission for an abortion to be performed . According to the applicants , she also implied that none of the other doctors in the hospital would perform an abortion .","The applicants left the hospital . The second applicant contacted ORG ( PERSON na rzecz NORP i Planowania Rodziny - hereinafter , \u201c the Federation \u201d ) in GPE for help , as after their experience in GPE she was afraid that no one in that town would perform an abortion .","On an unspecified date the Jan Bo\u017cy hospital issued a press release to the effect that it would not perform an abortion in the applicants\u2019","NORP The case became national news . A number of articles were published by various local and national newspapers . It was also the subject of various publications and discussions on the internet .","On DATE the applicants went to GPE and contacted a doctor recommended by ORG . They were informed about the procedure and about the available options . In TIME the first applicant was admitted to a hospital in GPE . She submitted to the hospital the certificate issued by the prosecutor ( see paragraph CARDINAL above ) , and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion . She signed a consent form to undergo an abortion and her parents also gave their written consent . Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the FAC hospital that the first applicant did not wish to have an abortion .","On DATE the applicants were told that the first applicant was obliged by law to wait DATE before having an abortion . On DATE the first applicant received a text message from NORP priest GPE that he was working on her case and that people from all over the country were praying for her . She also received numerous text messages along the same lines from a number of unknown third parties . The priest came to the GPE hospital TIME together with PERSON , an antiabortion activist . They were allowed to see the first applicant . They talked to her in her mother \u2019s absence and tried to persuade her to change her mind . In TIME an unidentified woman came to her room and tried to convince her to continue with the pregnancy . The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her .","On DATE the first applicant \u2019s father came to the hospital , apparently as he had been informed that his consent to the abortion was also necessary . A psychologist spoke with the first applicant \u2019s parents and then with the applicant . She apparently prepared an opinion on the case . The first applicant \u2019s parents were not given access to it . The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion , and that the hospital was receiving numerous e - mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion .","On DATE , feeling manipulated and helpless , the applicants decided to leave the hospital . As they were leaving , they were harassed by PERSON and Mr M.N .- K. , anti - choice activists waiting at the hospital entrance . The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant . The driver refused to take them . PERSON called the police . The police arrived promptly and took both applicants to the police station .","At the police station the applicants were questioned on DATE , from TIME until TIME No food was offered to them . The officers showed the applicants the family court decision which the police had received by fax at TIME from the GPE hospital . That decision , given by ORG , restricted the second applicant \u2019s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately ( see paragraph CARDINAL below ) .","Subsequently the police took the first applicant to a car . She was driven around GPE in search of a juvenile shelter that would accept her . The second applicant was not permitted to accompany her daughter . As no place was found in GPE , the police drove the girl to GPE , where she was placed in a shelter at TIME on DATE . She was put in a locked room and her mobile phone was taken from her . On DATE priest GPE visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother \u2019s home run by the NORP church .","A psychologist and an education specialist talked to her . She summarised the conversation thus :","\u201c They wanted to know the entire story and the Assistant PERSON was present . I told them again about the entire affair with the hospitals and the abortion . They said that it would be better for me to give birth . They did not ask me about my view . I stayed locked in the room DATE . I felt as though I was in a correctional facility , I had bars on the window and a locked door , it was not very pleasant . \u201d","Later in the morning of DATE the first applicant felt pain and experienced bleeding . In TIME she was taken to the Jan Bo\u017cy hospital in GPE . She was admitted to the maternity ward . A number of journalists came to see her and tried to talk to her .","On DATE , acting upon a letter from FAC and CARDINAL letters from the headmaster of the school attended by the first applicant dated DATE , and a note drawn up by a nonidentified authority , apparently a court supervisor ( kurator ) , also on DATE , ORG instituted proceedings to divest the second applicant of her parental rights .","In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother \u2019s assistance as she saw abortion as the only solution , and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term . She had also been concerned about the consequences , including psychological ones , that an abortion might have . The headmaster was of the view , relying on a conversation he had had with the class teacher and with the school social pedagogue , that the first applicant might be under pressure from her family . He was concerned that the second applicant had not sought psychological assistance for her daughter , who , it had been suggested by the school , might have suicidal tendencies . The second applicant had been requested to attend at the school ; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist .","Enclosed with the letter was a print - out of a chat between the first applicant and her friend dated DATE . It transpired therefrom that in reaction to the news about the minor \u2019s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house ; she also said that she did not know what to do and wanted her friend to help and the school to intervene .","On DATE that court , sitting in camera , ordered the first applicant \u2019s placement in a juvenile shelter as an interim measure . In its decision the court stated that the documents referred to above demonstrated that the first applicant \u2019s parents did not take appropriate care of their daughter . She was pregnant ; she had been admitted to FAC , which had refused to carry out an abortion having regard to the first applicant \u2019s statement that she did not wish to have recourse to it . The court had regard to text messages she had sent to her friend . Doctor PERSON had informed her about the consequences of an abortion . It was reported that the first applicant had travelled to GPE with her mother in order to have an abortion performed there . The first applicant was under pressure from her mother and was unable to take a decision independently . Her hospital stays and the atmosphere in the family were harmful to her . She had to be separated from her family in her own interest . The court relied on Article CARDINAL para CARDINAL ( CARDINAL ) of LAW .","On DATE the second applicant appealed against that decision . On DATE she filed with the court a written consent to her daughter \u2019s abortion , which she also submitted to the FAC hospital . On DATE she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it .","On DATE the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist , in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy . The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination . The questioning started at TIME and lasted for TIME . The first applicant \u2019s parents were not permitted to be present . The first applicant did not have legal assistance or any other adult present to represent her as a minor . DATE the court allowed the second applicant to take her home . On DATE she was discharged from the hospital .","On DATE ORG quashed its decision concerning the first applicant \u2019s placement in the shelter .","On DATE ORG , relying mainly on an expert opinion prepared by ORG , held that there were no grounds on which to divest the first applicant \u2019s parents of their parental rights . It discontinued the proceedings .","DATE the second applicant filed a complaint with ORG asking them to help her daughter obtain a lawful abortion , and submitted relevant documents , in particular the prosecutor \u2019s certificate . An official of ORG , ORG , informed the second applicant that her daughter \u2019s statement consenting to an abortion would have to be witnessed by CARDINAL persons . When the second applicant informed him that the statement had in fact been signed in the presence of CARDINAL witnesses , he told her that the ORG identification numbers were required and that the faxed copy had to be notarised .","On DATE the second applicant was informed by telephone by a ORG official that the issue had been resolved and that her daughter could undergo an abortion . She was notified that she would have to go to Gda\u0144sk , in northern GPE , QUANTITY from their home in GPE .","On DATE ORG sent a car for the applicants and they were driven to Gda\u0144sk . The first applicant had an abortion in a public hospital there . The applicants submitted that the trip to GPE and the abortion were carried out in a clandestine manner , despite the termination being lawful . When the applicants came back home , they realised that information about their journey to Gda\u0144sk had been put on the Internet by ORG DATE at TIME","On DATE ORG instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under LAW ( sexual intercourse with a minor DATE ) . The first applicant was summoned to appear in court for questioning on DATE .","On DATE the proceedings were discontinued . The court held that the first applicant could only be considered the victim of a criminal offence , not the perpetrator .","On DATE the second applicant informed the prosecutor that her daughter had been raped . According to her submissions , she was not aware that reporting the rape to the prosecuting authorities in DATE was not sufficient for an investigation to be instituted . The investigation against the perpetrator of the alleged rape was ultimately discontinued on DATE .","On DATE the GPE - \u015ar\u00f3dmie\u015bcie District Prosecutor discontinued proceedings against the second applicant , the first applicant \u2019s father , PERSON , and PERSON , who worked for ORG , concerning a suspicion that the first applicant had been coerced into having an abortion against her will . The prosecutor found that they had no case to answer and observed that it was not open to doubt , in the light of the documents submitted by the applicants to the GPE hospital , that she had a right to a lawful abortion .","A second set of proceedings , discontinued on DATE , concerned a suspicion that unknown persons , including doctors from GPE and GPE , NORP priests and members of anti - abortion organisations , had exerted pressure on the first applicant to dissuade her from having an abortion . The prosecutor found that there was no case to answer , because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used .","The second applicant appealed against that decision .","On DATE the GPE - \u015ar\u00f3dmie\u015bcie District Prosecutor discontinued proceedings that had been instituted against PERSON and PERSON M.N .- K. , finding that they had accosted the applicants when they were leaving the hospital in GPE on DATE , but that they had no case to answer because no physical violence had been involved . On DATE ORG dismissed the applicants\u2019 appeal .","DATE . On DATE the GPE - ORG dismissed the first applicant \u2019s appeal against a decision given on CARDINAL DATE by ORG to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order . The prosecutor and the court found that the police officers had no case to answer .","On DATE ORG upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants\u2019 personal data , finding that no criminal offence against the protection of personal data had been committed . No written grounds were prepared for these decisions as the law did not make it mandatory . The applicants appealed , submitting that when the first applicant had been in the GPE hospital , information about her real name , condition and predicament was available and discussed on many internet fora . This caused considerable stress to the applicants . The medical data were particularly sensitive and their disclosure to the general public was unlawful . It was therefore necessary to establish the identity of the persons who had leaked the information to the public . On DATE ORG dismissed the appeal , finding that the prosecutor \u2019s decision was lawful and correct .","On DATE ORG upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law , an punishable under LAW committed by PERSON , possibly also by other doctors working at that hospital , \u00b2by the director of the hospital who had spoken to the press about the NORP case and by priest GPE The applicants appealed submitting that information about the applicants\u2019 situation had been disclosed to the general public .","On DATE ORG dismissed the complaint , holding that the first applicant had not objected to the proposal to speak to the priest ; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties . The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties , social and church organisations engaged in the debate about such cases .","The applicable provisions of domestic law are extensively summarised in the judgments of NORP v. GPE , no . CARDINAL\/CARDINAL , DATE , and ORG v. GPE , no . CARDINAL , CARDINAL DATE .","NORP In particular , the Law on Family Planning ( Protection of the Human Foetus and Conditions Permitting Pregnancy Termination ) , which is still in force , was passed by ORG in DATE . Section CARDINAL provided at that time : \u201c every human being shall have an inherent right to life from the moment of conception \u201d .","Section CARDINAL(a ) of the DATE LAW , in its relevant part :","\u201c CARDINAL . An abortion can be carried out only by a physician and where","CARDINAL ) NORP pregnancy endangers the mother \u2019s life or health ;","CARDINAL ) NORP prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable lifethreatening ailment ;","CARDINAL ) NORP there are strong grounds for believing that the pregnancy is the result of a criminal act .","NORP In the cases listed above under CARDINAL ) , an abortion can be performed until such time as the foetus is capable of surviving outside the mother \u2019s body ; and in cases listed under CARDINAL ) above , until DATE of pregnancy .","In the cases listed under CARDINAL ) and CARDINAL ) above , the abortion shall be carried out by a physician working in a hospital .","...","The circumstances in which abortion is permitted under paragraph CARDINAL , sub - paragraphs CARDINAL ) and CARDINAL ) above shall be certified by a physician other than the one who is to perform the abortion , unless the pregnancy entails a direct threat to the woman \u2019s life . The circumstances specified in paragraph CARDINAL , subparagraph CARDINAL ) above shall be certified by a prosecutor . . \u201d"],"violated_articles":["3","5","8"],"violated_paragraphs":["5-1","8-1"],"violated_bulletpoints":["5-1-d"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112459","languageisocode":"ENG","respondent":"ESP","branch":"CHAMBER","date":2012,"docname":"CASE OF B.S. v. SPAIN","importance":3,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["The applicant , who is of NORP origin , was born in DATE and has been lawfully resident in GPE since DATE .","On DATE the applicant was on the public highway in the GPE district near GPE , where she worked as a prostitute , when CARDINAL officers of the national police force asked to see her identity and then ordered her to leave the LOC , which she did immediately .","The applicant alleged that DATE , after returning to the same place , she had noticed the same police officers coming towards her and had attempted to flee . The police officers had caught up with her , struck her on the left thigh and on her wrists with a truncheon and again demanded to see her identity papers . She alleged that during the altercation , which had been witnessed by a number of people including CARDINAL taxi drivers and the security guards of a nearby discotheque , CARDINAL of the police officers had insulted her , saying things like \u201c get out of here you black whore \u201d . She was released after presenting her papers to the police officers .","Again according to the applicant , on DATE the same police officers stopped her again and CARDINAL of them hit her on the left hand with his truncheon .","DATE the applicant lodged a formal verbal complaint with GPE investigating judge no . DATE and went to hospital to have her injuries treated . The doctors observed inflammation and mild bruising of the left hand .","The file was allocated to GPE investigating judge no . CARDINAL , who decided to open a judicial investigation and requested an incident report from the police headquarters . In his report of DATE the chief of police of GPE explained that police patrols were common in the district concerned on account of the numerous complaints of theft or physical attacks regularly received from the local residents and the resulting damage done to the district \u2019s image . He added that foreign female citizens present in the area often attempted to escape from the police because the latter \u2019s presence hindered them in their work . In the present case the applicant had attempted to avoid inspection by the police but had been stopped by the officers , who had asked her to show her papers without at any time making any humiliating remarks or using physical force . With regard to the identity of the officers , the head of police indicated that the ones who had stopped and questioned the applicant the first time were from the patrol formed by the police officers PERSON CARDINAL and Rayo CARDINAL ( code names given to the officers ) . Contrary to the applicant \u2019s assertions , those who had stopped her on DATE belonged to a different patrol , called ORG .","NORP In a decision of CARDINAL October DATE GPE investigating judge no . CARDINAL issued a provisional discharge order and decided to discontinue the proceedings on the ground that there was insufficient evidence that an offence had been committed .","That decision was served on the applicant or her representative on DATE , at the latter \u2019s request .","The applicant applied to GPE investigating judge no . CARDINAL to have the decision reversed , and subsequently appealed . She complained of the discriminatory attitude of the police officers and requested that various evidence - gathering measures be taken , such as identification of the officers in question and taking witness statements from the persons who had been present during the incidents . In a decision of DATE , investigating judge no . CARDINAL refused to reverse his decision on the grounds that the applicant \u2019s allegations had not been corroborated by objective evidence in the file . The judge observed that","\u201c the medical report [ provided by the applicant ] contains no date and , in any event ... mentions only inflammation and bruising of the hand , with no mention of any injury to the thigh .","[ The facts submitted ] merely show that the applicant repeatedly failed to obey police orders given in the course of their duties , designed to prevent the shameful spectacle of prostitution on the public highway . \u201d","An appeal by the applicant was examined by LOC , which gave a decision on DATE allowing the appeal in part , setting aside the discharge order and ordering proceedings for a minor criminal offence to be instituted before the investigating judge against the QUANTITY police officers , who had been identified on the basis of the information contained in the report drawn up by the police headquarters .","In the context of those proceedings the applicant asked to be able to identify the officers through a CARDINAL - way mirror . Her request was rejected on the grounds that this was an unreliable method of identification given the length of time that had already elapsed since the incidents and the fact that the officers in question had been wearing helmets throughout , as the applicant had acknowledged . No evidence against the accused was taken during the trial .","On DATE investigating judge no . CARDINAL gave judgment at the end of a public hearing during which evidence was heard from the police officers charged , who were not formally identified by the applicant . In his judgment the judge observed that during the judicial investigation an incident report had been requested from the police headquarters according to which the officers involved had stated that no incident had occurred when they had stopped and questioned the applicant . The judge drew attention to the fact that the medical report provided by the applicant did not specify the date on which it had been drawn up . Furthermore , the findings in the report were not conclusive as to the cause of the injuries . Lastly , the judge reproduced verbatim the grounds of the decision of DATE relating to the applicant \u2019s conduct and the purpose of the intervention by the police and concluded that her allegations were not objectively corroborated . In the light of those arguments , the judge acquitted the police officers .","The applicant appealed . She challenged the refusal to allow her to identify the perpetrators through a CARDINAL - way mirror and criticised the fact that the only investigative measure taken by the investigating judge in response to her complaint had been to request a report from the police headquarters .","In a judgment of DATE , ORG dismissed her appeal and upheld the investigating judge \u2019s judgment . It pointed out that the right to use a range of evidence - gathering measures did not include the right to have each and every proposed measure accepted by a court . In the instant case identification through a CARDINAL - way mirror would not have added anything to the evidence on the file .","Relying on Articles CARDINAL ( prohibition of discrimination ) , CARDINAL ( protection of physical integrity ) and DATE ( right to a fair trial ) of the LAW , the applicant lodged an amparo appeal with ORG . In a decision of DATE , ORG dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised .","NORP The applicant was stopped and questioned again on DATE . On DATE she went to the casualty department of a public medical centre , where the doctor observed abdominal pain and bruising on the hand and knee .","On DATE she lodged a criminal complaint with GPE investigating judge no . CARDINAL , alleging that CARDINAL of the police officers had struck her on the hand and knee with a truncheon and that the officers had singled her out on account of her racial origin and had not stopped and questioned other women carrying on the same activity . She also stated that she had subsequently been taken to the police station , where she had refused to sign a statement drawn up by the police saying that she admitted having resisted police orders . Referring to the incidents that had occurred during the first episode , the applicant requested the removal of the police officer who had assaulted her and that her complaint be joined to the CARDINAL previously lodged with investigating judge no . CARDINAL . Neither of her requests was granted .","The case was allocated to GPE investigating judge no . CARDINAL , who decided to open a judicial investigation . The applicant requested certain evidence - gathering measures , including obtaining from the police the identification numbers of the officers who had been on duty on CARDINAL and DATE . In the alternative , should that information not permit identification of the police officers responsible , the applicant requested that all the police officers who had patrolled the area during DATE be summoned so that they could be identified through a CARDINAL - way mirror . Her request was rejected .","NORP In the course of the judicial investigation , investigating judge no . CARDINAL requested an incident report from the police headquarters .","A report by the LOC chief of police dated DATE explained , firstly , that the applicant had admitted working as a prostitute in the area in question , which was an activity that had given rise to numerous complaints from local residents . In that connection he considered that the sole purpose of the applicant \u2019s complaints ( including the CARDINAL of DATE ) had been to allow her to pursue her occupation unhindered by the police . With regard to the identity of the officers in question , the chief of police observed that the computer records had not registered any intervention on DATE ; only those of CARDINAL and CARDINAL DATE had been recorded in respect of that area .","On DATE investigating judge no.CARDINAL issued a provisional discharge order and decided to discontinue the proceedings on the grounds that there was insufficient evidence that an offence had been committed .","The applicant sought to have that decision reversed by the judge and subsequently appealed . The judge dismissed her request by a decision of CARDINAL DATE . Subsequently , ORG dismissed her appeal on DATE . The Audiencia referred both to the report of the police headquarters in which there was no record of an intervention by the police on the alleged date and the statements in the report regarding the applicant \u2019s true motives in lodging her complaints . It also considered that the medical report supplied by the applicant did not enable the cause of the injuries to be unequivocally established .","Relying on Articles CARDINAL ( right to dignity ) , CARDINAL ( prohibition of discrimination ) , CARDINAL ( right to physical and mental integrity ) and CARDINAL ( right to a fair trial ) of the LAW , the applicant lodged an amparo appeal with ORG . In a decision of DATE , ORG dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised .","..."],"violated_articles":["14","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59514","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2001,"docname":"CASE OF TRICKOVIC v. SLOVENIA","importance":4,"conclusion":"No violation of Art. 6-1","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national of NORP origin . He was born in DATE and lives in GPE . He was employed as a medical technician in ORG . In DATE , after GPE became independent following the dissolution of the former GPE , the applicant worked in ORG in GPE .","As ORG withdrew from GPE in DATE , the applicant , who had been declared disabled , applied for an invalidity pension . In DATE ORG in GPE granted him the right to retire on grounds of invalidity and paid him a pension until DATE .","Following the dissolution of the former GPE and in the absence of an agreement on the succession or any relevant bilateral treaty , ORG decided to provide for an advance payment of military pensions , since the GPE fund had ceased to pay former servicemen living in GPE . The purpose of this regulation was to find a temporary solution for retired military personnel and some other categories of military benefiting from the scheme , until the issues of the State succession had been settled .","NORP The proceedings in question in the present case concern the applicant \u2019s claim for an advance on his military pension .","On DATE the applicant applied for an advance on his military pension under the Advance on Payment of Military Pensions Decree ( Official Gazette no . CARDINAL of DATE ) .","On DATE the Pension and Invalidity Insurance Fund ( Skupnost pokojninskega in invalidskega zavarovanja ) found that the applicant had no right to advance payments . On DATE the Pension and Invalidity Insurance Fund dismissed the applicant \u2019s appeal . The applicant sought judicial review of those decisions .","On DATE ORG in GPE ( PERSON zdru\u017eenega dela pokojninskega in invalidskega zavarovanja ORG ) dismissed the applicant \u2019s action . On DATE ORG ( Vi\u0161je delovno in socialno sodi\u0161\u010de ) in GPE upheld the lower court \u2019s decision . The second - instance decision was served on DATE .","On DATE the applicant lodged a constitutional appeal with ORG ( PERSON sodi\u0161\u010de ) alleging breaches of his constitutional rights in the aforementioned proceedings .","On DATE the Constitutional Court invited the applicant to complete his appeal . ORG and the Pension and Invalidity Insurance Fund were requested to submit records . The applicant filed supplementary submissions on DATE but ORG did not receive them until DATE .","On DATE and DATE a panel of CARDINAL judges considered the case in the preliminary proceedings . On DATE ORG declared the applicant \u2019s constitutional appeal admissible .","On DATE ORG asked ORG to submit a statement , which was supplied on DATE .","On DATE the plenary court began consideration of the merits of the applicant \u2019s case .","In addition , the Pension and Invalidity Insurance Fund was asked on DATE to submit its opinion . They complied with the request on DATE .","On DATE , DATE and DATE ORG held further deliberations .","On DATE ORG , by a majority , rejected the constitutional appeal as being manifestly ill - founded . The decision was served on DATE .","On DATE the applicant applied for a pension under general pension and invalidity insurance regulations .","On DATE the Pension and Invalidity Insurance Fund granted the applicant the right to his pension from DATE .","Article CARDINAL of the Constitution of GPE ( PERSON ) reads , so far as it is relevant :","... on constitutional appeals of violation of human rights and fundamental freedoms by specific acts ; ...","Unless otherwise provided by law , the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted . The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures . \u201d","\u201c Proceedings before the Constitutional Court shall be regulated by law .","The law shall determine who may require proceedings to be instituted before ORG . Anyone who demonstrates a legal interest may request the institution of proceedings before ORG .","The Constitutional Court shall decide on a majority vote of all its judges unless otherwise provided for in individual cases by the LAW or by statute . ORG may decide whether to institute proceedings following a constitutional appeal with such lesser number of judges as may be provided by statute . \u201d","LAW ( Zakon o Ustavnem sodi\u0161\u010du ) governs the composition and functioning of ORG .","\u201c ORG is the highest body of judicial authority for the protection of constitutionality , legality , human rights and basic freedoms \u2026","Decisions of ORG are legally binding . \u201d","Sections CARDINAL of that Act concern constitutional appeals by individuals ( see paragraph CARDINAL above ) .","\u201c Any one who believes that his or her human rights and basic freedoms have been violated by a particular act of a state body , local community body or statutory authority may lodge a constitutional appeal with ORG , subject to compliance with the conditions laid down by LAW . ... \u201d","\u201c A constitutional appeal may be lodged only after all legal remedies have been exhausted .","Before all special legal remedies have been exhausted , ORG may exceptionally hear a constitutional appeal if a violation is probable and if certain irreparable consequences for the appellant would occur as a result of the implementation of a particular act . \u201d","\u201c A constitutional appeal shall be lodged within DATE after the date of the decision against which the constitutional appeal lies .","...","In specially founded cases ORG may exceptionally hear a constitutional appeal lodged after the expiry of the time - limit stated in the first paragraph of this section . \u201d","\u201c The constitutional appeal must indicate the particular act which is the subjectmatter of the appeal and the facts that give rise to the allegation of a violation of human rights and basic freedoms on which the appeal is based .","A constitutional appeal shall be lodged in writing . There shall be enclosed with it a copy of the particular act that is the subject - matter of the appeal and all documents forming the basis of the appeal .","The appeal and annexed documents shall be lodged in triplicate . \u201d","Sections DATE govern the preliminary procedure .","\u201c A decision on whether a constitutional appeal is admissible and to institute proceedings shall be taken in private by a committee of CARDINAL judges of ORG .","If the appeal is incomplete or if ORG is unable to examine it because it does not contain all the required information or documents referred to in the preceding section of this act , the ORG shall require the appellant to complete the appeal within a specified time . \u201d","Sections CARDINAL set out the procedure for the adjudication of the constitutional appeal and provide :","\u201c If the constitutional appeal is found to be admissible , it shall be sent to the body which issued the act and against which the constitutional appeal has been lodged , so that it may reply to the constitutional appeal within a determined period . \u201d","\u201c If a constitutional appeal is admissible , it shall be examined by ORG in private unless ORG decides to hold a public hearing . \u201d","\u201c The Constitutional Court shall issue a decision declaring that the appeal was unfounded or shall accept the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part , and return the matter to the competent body . ... \u201d","Section CARDINAL concerns ORG decision if the appeal is upheld and reads :","\u201c If ORG quashes an individual act , it may also decide a contested right or freedom if such procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5122","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2000,"docname":"CRAIG v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national living in GPE . She is represented before the Court by ORG , a solicitors\u2019 firm in GPE","The applicant is a social worker working with children DATE . She also works on a voluntary basis as a classroom assistant in a local school . She is homosexual and her sexual orientation is known to her employer and to the school where she assists . The applicant has CARDINAL children DATE .","The applicant has been involved in a homosexual relationship with L since DATE . L obtained a divorce in DATE but the custody and care of ORG CARDINAL children ( born in DATE , CARDINAL , DATE and DATE , respectively ) were the subject of ORG proceedings . In or around DATE L and her former husband agreed interim shared care arrangements according to which the children would spend alternative DATE with each parent .","On DATE L and her former husband settled the ORG proceedings . L \u2019s former husband would have custody of the children and her access to them would continue on the basis of the shared care arrangement . L also agreed that she would not permit the children to come into contact with or remain in the company of the applicant or of any other person known to L to be lesbian . ORG made an order on DATE in the terms of this agreement . As a result of difficulties surrounding the applicant \u2019s contact with L , the matter was brought before ORG on DATE when PERSON again undertook to the ORG that she would comply with the order of CARDINAL DATE . Following another summons issued by ORG former husband , on DATE L undertook to ORG that she would instruct the applicant not to call at her home at any time when she had access to the children , and she undertook not to answer or open the door if the applicant called at her house during a scheduled access visit . ORG recorded L \u2019s undertakings in its order of DATE and dismissed the summons . Since then L lives DATE at her own address with her children and DATE with the applicant .","During the course of the custody proceedings , social work and psychologist reports were submitted to ORG dealing , inter alia , with the applicant \u2019s position in relation to L and her children .","The detailed report of a child and adolescent psychiatrist , PERSON , of DATE concluded that research showed there was no evidence that children living with lesbian mothers were adversely affected in terms of their sexual identity , personal development , peer relationships or social adjustment . He considered that there was no evidence that ORG sexual orientation posed a threat to the children or that GPE \u2019s relationship with the applicant would adversely affect the children . The evidence was that cohabitation between L and the applicant , provided that relationship was good , would have a positive effect on the children . Given the acrimonious relationship between L and her former husband , the children \u2019s need for stability and security , the difficulties ORG husband experienced with the shared care arrangements and since GPE was the main care giver , it was that expert \u2019s opinion that L should be granted custody with frequent access being given to GPE \u2019s former husband .","A social work report of DATE indicated that there was nothing to suggest that L could not provide adequate care and protection for the children . Given the GPE acrimonious relationship and the children \u2019s need for stability , custody was recommended in favour of L with regular access in favour of ORG husband . A further social work report of DATE highlighted the husband \u2019s concern about L \u2019s relationship with the applicant . Having considered all of the care and custody options , the social worker indicated that he was unable to assess the children \u2019s views on their mother \u2019s homosexuality and that there was a lack of definitive research on the possible effects on the children \u2019s developments of being in the custody of L who was homosexual . He found it extremely difficult to make a definite recommendation , but considered that custody should be given to L , her husband \u2019s condition as regards the children having no contact with the applicant being considered \u201c untenable \u201d .","Dr Harbinson , a consultant psychiatrist , did not agree with PERSON report of DATE . In his report of DATE , he considered that it was difficult to dismiss the vital importance of parents as role models for their children and the stigmatisation attached in our society to homosexuality . He considered that it would not be wise to raise the issue of ORG homosexuality with the children at that stage .","PERSON produced an addendum to his report in DATE pointing out that PERSON had done limited research on lesbian couples and children and had misinterpreted the research quoted . He repeated that it was not the sexual orientation of parents that was the issue but rather the quality of the GPE relationship . He added that psychological studies had shown that where the mother ( the main care giver ) was living with her lesbian partner , the mother was psychologically more secure and stable and this was , in turn , beneficial for the children . He confirmed his recommendation that L have custody of the children , with her husband having regular access ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-87221","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2008,"docname":"CASE OF DAROCZY v. HUNGARY","importance":3,"conclusion":"Violation of Art. 8;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","NORP In DATE the applicant married Mr PERSON . According to birth certificate no . CARDINAL\/CARDINAL Mr PERSON was entitled to bear the CARDINAL above - mentioned forenames from the very moment of his birth . Her husband signed the marriage certificate as \u201c PERSON \u201d . The applicant chose to bear her husband \u2019s name by putting the suffix \u201c -n\u00e9 \u201d referring to the marriage ( h\u00e1zass\u00e1gra utal\u00f3 told\u00e1s ) after the first given name ( PERSON ) of her husband . In accordance with the widespread custom in GPE , the latter only used his first given name even in official contexts . The applicant \u2019s married name was registered as PERSON on the marriage certificate .","The official before whom the marriage took place did not observe that the name chosen was against the law since , at the material time , a woman could only choose to bear the whole name of her husband , including all the given names . In the present case , the applicant \u2019s correct married name should have been PERSON .","The mistake was not revealed in DATE when identity cards were introduced in GPE . The applicant \u2019s renewed identity card issued in DATE also contained the name PERSON . The applicant used this name in all official and private business . In particular , her social security card and tax identification certificate were issued in the name ORG .","In DATE GPE introduced electronic data recording . In the new ORG ( PERSON ) the applicant \u2019s name was automatically entered in the manner prescribed by law , as PERSON . However , she did not receive any official notification of this fact . In DATE she and her husband were entered on the electoral register ( v\u00e1laszt\u00f3i n\u00e9vjegyz\u00e9k ) under the names PERSON and PERSON . This database relied on the general ORG .","In DATE the applicant \u2019s husband died . The applicant then used the name PERSON with the prefix \u201c \u00f6zv . \u201d indicating that she was a widow .","In DATE the applicant lost her identity card . Based on ORG , ORG issued a new card which indicated her name as the widow of PERSON ( \u00f6zv . PERSON ) . On CARDINAL DATE the applicant obtained an official certificate containing this name . The certificate \u2019s only function was to enable her to access her bank account since her new identity card contained a name that was different from the one she had used when opening the account . The text of the certificate expressly stated that it had been issued for CARDINAL - time use .","The applicant lodged a complaint with ORG , seeking permission to bear the name PERSON . In DATE the Ministry informed her that , since her husband \u2019s official name was PERSON , she was entitled and obliged to bear that name in its entirety as a widow , and that it was not possible to change it to another form . Her name is at present registered as PERSON .","\u201c ( CARDINAL ) As a general rule , women should be entered in the registry under their family name ( birth name ) and forename . Exceptions , having to bear their husbands\u2019 as well as their own family name and forename :","( a ) married women , widows ... \u201d","\u201c ( CARDINAL ) After the marriage , the wife shall bear","a ) her whole maiden name , or","b ) the whole name of her husband with the suffix referring to the marriage , to which she may attach her whole maiden name , or","c ) her husband \u2019s family name with the suffix referring to the marriage , to which she attaches her whole name , or","d ) her husband \u2019s family name to which she attaches her first name . ... \u201d","\u201c ( CARDINAL ) A person bearing his \/ her spouse \u2019s name can not alter it by way of a name - change ( n\u00e9vv\u00e1ltoztat\u00e1s ) . \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-119972","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2013,"docname":"CASE OF ZEYNALOV v. AZERBAIJAN","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law)","judges":"Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["The applicant was born in DATE and lives in GPE . He is a farmer .","Following a dispute over ownership rights to a plot of land between the applicant and LOC in the district formerly known as GPE ( \u201c the GPE \u201d ) , criminal proceedings were instituted against the applicant .","On DATE the ORG convicted the applicant under LAW ( violation of a lawful owner \u2019s right to a plot of land , by means of unauthorised occupation , alteration or cultivation thereof ) and sentenced him to a fine in the amount of CARDINAL conventional financial units ( CARDINAL old NORP manats , equivalent to CARDINAL new NORP manats ( AZN ) , which according to the official exchange rates published by ORG amounted to MONEY ( ORG ) at the relevant time ) . The court found that the applicant had unlawfully occupied and cultivated a plot of land of QUANTITY owned by the LOC . The ORG based its findings on witness statements and information provided by ORG ( \u201c the NORP \u201d ) .","On an unspecified date , the applicant appealed against the judgment of CARDINAL DATE , arguing that the plot of land in question was part of a larger parcel of land measuring QUANTITY belonging to his family farming business . On DATE ORG upheld the first - instance court \u2019s judgment .","The applicant lodged an appeal on points of law , alleging that the lower courts had erred in their assessment of the facts . On DATE ORG , composed of a panel of CARDINAL judges including judge GPE , quashed the judgment of ORG of DATE and remitted the case for a new examination to ORG . ORG noted , in particular , that the conviction was based on insufficient evidence .","Taking into consideration the findings of ORG , ORG sent a new request to the ORG and the GPE requesting detailed information about the exact location , measurements and ownership of the plot of land . GPE submitted that , according to the official records , the plot in question belonged to GPE and not the applicant . The PERSON conducted an on - site inspection of the plot of land and submitted to the court that the plot in question was part of the GPE \u2019s estate . On DATE ORG delivered a new judgment upholding ORG judgment of CARDINAL DATE convicting the applicant . The court held that the disputed plot of land which the applicant cultivated belonged to the GPE and that the relevant law had been applied correctly .","The applicant appealed . On DATE ORG , composed of a panel of CARDINAL judges including judge GPE , examined the applicant \u2019s appeal . It found that ORG had examined all the relevant and available evidence and had committed no breaches of substantive or procedural law . Accordingly , ORG dismissed the applicant \u2019s appeal and upheld ORG judgment of DATE .","NORP The relevant provisions of LAW ( \u201c the CCrP \u201d ) concerning the disqualification of judges provided as follows :","Article CARDINAL . Objection to a judge","\u201c CARDINAL . An objection to a judge ( or judicial formation ) must state reasons ... An objection to a judge may be considered justified and be granted unconditionally if there exists CARDINAL of the following grounds precluding a person \u2019s participation in a criminal proceedings as a judge :","...","DATE . if the judge had participated as a judge in the examination of the same criminal case or another prosecution matter in a court of first instance or appeal or before ORG , or on the basis of newly discovered facts ( the judge \u2019s examination of the file at the pre - trial stage by way of judicial supervision , or the initial hearing of the case , shall not preclude his subsequently examining the case as a member of the court of first instance or appeal or ORG ) ;","...","In any of the cases covered by LAW , the judge shall disqualify himself or herself . \u201d","The following are the relevant provisions of the ORG concerning the review of the relevant decisions delivered in domestic proceedings and reopening of the domestic proceedings following a finding by ORG of a violation of the Convention :","Article CARDINAL . FAC for review of judicial decisions in connection with the violation of rights and freedoms","\u201c CARDINAL . The following are grounds for review of judicial decisions in connection with the violation of rights and freedoms :","...","finding by ORG a violation of the provisions of LAW in the criminal proceedings , simplified pre - trial proceedings or proceedings involving a complaint under the private prosecution procedure , conducted by courts of GPE ; ... \u201d","Article CARDINAL . Procedure for review of judicial decisions in connection with the violation of rights and freedoms","\u201c CARDINAL . The Plenum of ORG is vested with the competence to review judicial decisions in connection with the violation of rights and freedoms .","Where grounds exist under ORG and DATE , the ORG of the ORG examines the cases only on points of law , in connection with the execution of judgments of ORG and ORG . After a judgment of ORG or ORG is received by ORG , the President of ORG assigns the case to one of the [ ORG ] judges for preparation and presentation of the case at the ORG [ of ORG ] . The case shall be reviewed at a hearing of the ORG of ORG DATE after the judgment of ORG or ORG is received by ORG . ... \u201d","Article CARDINAL . Decision taken after review in connection with the finding by ORG a violation of the provisions of LAW in the criminal proceedings conducted by courts of GPE","\u201c CARDINAL . Having conducted a review in cases stipulated by DATE , the Plenum of ORG has competence to deliver one of the following decisions :","to quash , fully or partially , judicial decisions of the first - instance , appellate and cassation courts , as well as judicial decisions delivered under the procedure of additional cassation ... , and to remit the criminal case , the case materials of simplified pre - trial proceedings , or the case materials of proceedings involving a complaint under the private prosecution procedure , for re - examination by the relevant firstinstance or appellate court ;","CARDINAL.CARDINAL.CARDINAL . to amend a decision of the court of cassation and\/or additional cassation in situations stipulated in ORG and CARDINAL of this Code ;","to quash a decision of the court of cassation and\/or additional cassation and to deliver a new decision . \u201d","In its decision no . CARDINAL of DATE concerning the ORG practice on implementation of the rules concerning objections to a judge or the bench , the Plenum of ORG held that when relevant legal grounds for disqualification exist , a judge must withdraw from the examination of the case of his or her own accord , even when the parties to the proceedings have not raised an objection . This requirement to withdraw is defined by the ORG as the judge \u2019s \u201c legal duty \u201d ( paragraph CARDINAL ) . A judge who has already heard a criminal case in a court of first instance , appeal or cassation , can not take part in the re - examination of the same criminal case ( paragraph CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98098","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2010,"docname":"BELAYEV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , LOC . The applicant is a retired military serviceman .","\u201c ... the military commissioner is to reinstate PERSON in the list of military personnel and to eliminate the violations of the procedure of his discharge from work ... and then [ again ] exclude PERSON from the list of military personnel , after having provided him with all kinds of military provisions , including monetary ones ... \u201d","On DATE the Military Commissioner replied to the applicant stating that in DATE he had been provided with a flat in GPE , that in DATE his wife had privatised the flat and that in DATE she had sold it . The letter further stated :","\u201c ... Thus , you have forfeited your entitlement to be provided with housing by the ORG or by ORG ... \u201d","On DATE the applicant brought proceedings against the Military Commissioner at ORG .","On DATE ORG refused to examine the applicant \u2019s complaint stating that the same complaint had been already examined by the court \u2019s decision of DATE . The applicant appealed against this decision to the court of LOC ( ORG ) . On DATE ORG overruled this decision and returned the case for a fresh examination .","On DATE ORG rejected the applicant \u2019s complaint . The court referred to the Military Commissioner \u2019s letter of CARDINAL DATE and stated that the applicant had missed the DATE statutory time - limit for the appeal against actions of officials . The text of the court \u2019s decision stated , inter alia , the following :","\u201c ... During the hearing the applicant stated that he did not miss the DATE time - limit for appeal of actions of officials , as he had received the Military Commissioner \u2019s written refusal ... on DATE and that he had lodged his complaint with the court on DATE ...","The court finds that the applicant \u2019s reference [ to the above dates ] is unsubstantiated for the following reasons :","... according to LAW and LAW , a citizen must lodge his complaint within DATE from the date when he learnt about a violation of his rights [ by a ORG official ] .","The ORG finds that it is obvious that after the sale of his flat in GPE on DATE the applicant was aware of the absence of housing for him and his family . Further , by the Military Commissioner \u2019s order no . CARDINAL issued on DATE the applicant was excluded from the list of the military personnel . Being aware of the exclusion from the list , the applicant appealed this order in DATE to ORG .","In these circumstances , the court finds that the applicant was aware of the exclusion from the list of military personnel [ and of the relevant entitlements ] ... and the violation of his rights by the ORG official in DATE ...","... The applicant \u2019s [ current ] complaint was received by ORG on DATE .","In this situation the ORG finds that the DATE time limit for appeal against the actions of the Military Commissioner ... was missed by the applicant .","As to the applicant \u2019s reference that the time limit started running over again after ... in DATE he had received the written refusal of the ORG official , the court finds it unconvincing as the time limit [ for the appeal against actions of officials ] should be calculated from the earliest event ... \u201d","The applicant appealed this decision to ORG . On DATE ORG upheld the decision of ORG and it became final .","LAW , in force as of DATE stipulates :","\u201c Limitation period for judicial complaints :","A citizen has the right to apply to a court within DATE starting from DATE when he leant about the violation of his rights [ by a ORG official ] . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83796","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2007,"docname":"OMWENYEKE v. GERMANY","importance":2,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , Mr DATE PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer working for the AIRE ( Advice on Individual Rights in LOC ) Centre in GPE .","On DATE the applicant entered GPE and requested asylum .","On DATE ORG rejected his asylum request and declared that there was no prohibition on deporting him because he did not face political persecution in GPE . The applicant brought an action in ORG seeking to have this decision quashed .","On DATE the applicant , who had been issued with a provisional residence permit ( PERSON , see ' Relevant domestic law ' below ) , was directed to reside and remain within the city of ORG pending the decision on his asylum request .","DATE and DATE ORG granted the applicant leave to quit the city of ORG on CARDINAL occasions in order to attend conferences for refugees and on CARDINAL occasion to meet a lawyer .","In DATE the applicant left the city of ORG in order to help in preparations for and to attend another congress for refugees , despite the fact that ORG had refused him permission to leave the city . The applicant left ORG on CARDINAL further occasions without having requested authorisation to do so . On DATE the ORG discontinued the criminal proceedings instituted against the applicant for repeated disregard of a territorial restriction of residence , since it considered the applicant 's offence to be of a minor nature .","On DATE the applicant was again stopped by the police outside the ORG city limits ; again , he had not requested and obtained the necessary authorisation .","On DATE the applicant was granted a residence permit ( ORG ) following his marriage to a NORP national and was thus no longer subject to restrictions on his movements .","On DATE ORG convicted the applicant of repeated disregard of a territorial restriction of residence in view of his residence outside ORG in DATE and on DATE , and ordered him to pay a fine of MONEY ( ORG ) .","ORG conceded that the application of section QUANTITY ( see ' Relevant domestic law ' below ) led to hardships for asylum seekers in many cases . Nevertheless , contrary to the applicant 's view , that provision was compatible with LAW . This had been confirmed by ORG , in particular , in its decision dated DATE . The legislator had restricted the right to free development of one 's personality , guaranteed by LAW in a proportionate manner . The impugned provision was intended to accelerate the treatment of asylum requests by securing the asylum seekers ' availability , and to distribute between the ORG and cities the tasks and costs incurred by taking in asylum seekers . There was no milder , equally effective means to secure the achievement of the aims pursued by the provision . In particular , the option of restricting merely longer absences from the assigned district and authorising shorter absences without prior permission could not be controlled in practice and would entail considerable administrative expense . Given that section CARDINAL \u00a7 CARDINAL of LAW ( see ' Relevant domestic law ' below ) allowed for exceptions from the restriction of residence , that restriction was not disproportionate . Likewise , it was not disproportionate to enforce the restriction by means of criminal law ( section CARDINAL no . CARDINAL of LAW ) .","ORG further found that the territorial restriction of residence pursuant to section CARDINAL \u00a7 CARDINAL of LAW did not contravene any provisions of public international law . Both LAW relating to LAW ( ORG ; see ' Relevant domestic and public international law ' below ) granted freedom of movement only to refugees who were lawfully on the territory of ORG . This was only the case where an asylum seeker was recognised by a final decision as a person being persecuted for political reasons . The applicant had resided lawfully in GPE only since LAW DATE , when he was granted a residence permit following his marriage to a NORP national .","On DATE ORG dismissed the applicant 's appeal . It found that the appeal , which had been lodged in accordance with the formal requirements and time - limit laid down in LAW , was manifestly ill - founded and therefore inadmissible . Endorsing the reasons given by ORG , ORG confirmed that the applicable provisions of LAW complied with the provisions of LAW and of public international law .","On DATE ORG declined to consider the applicant 's constitutional complaint ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) .","ORG found that the complaint had no prospects of success . In so far as the applicant considered sections CARDINAL no . CARDINAL of LAW to be unconstitutional , he had not sufficiently substantiated his complaint . He had failed to address the reasons given in ORG decision of DATE in which it had found that the impugned provisions complied with LAW . In so far as the applicant contested the application of the impugned provisions to his case , his submissions were inconsistent . He now claimed to have travelled for the benefit of a refugee organisation on DATE , a fact which he had failed to mention in the proceedings before the criminal courts .","The decision was served on the applicant 's counsel on DATE .","LAW ) lays down the rules which are applicable to foreigners who seek asylum on account of political persecution or who seek protection from deportation to a country where their life or freedom would be at risk .","Under section CARDINAL \u00a7 CARDINAL of LAW , a foreigner who requests asylum is permitted to reside on ORG while the relevant asylum proceedings are pending ( provisional residence permit \u2013 PERSON ) . He or she is not entitled to reside in a particular Land or place .","Section CARDINAL \u00a7 CARDINAL of LAW provides that the provisional residence permit is territorially restricted to the district of ORG in which the institution responsible for reception of the foreigner is located .","Under section CARDINAL \u00a7 CARDINAL of LAW , ORG may grant a foreigner who is not or is no longer obliged to live in a reception centre authorisation to leave temporarily the district for which his or her provisional residence permit is valid or , generally , to reside in a neighbouring district . Leave must be granted if there is a pressing public interest or compelling grounds to do so , or if a refusal to grant leave would entail an undue hardship . Section CARDINAL \u00a7 CARDINAL stipulates that leave is to be granted to facilitate appointments with representatives , with the ORG High Commissioner for Refugees and with organisations providing care for refugees . Under section CARDINAL \u00a7 CARDINAL , a foreigner does not require permission to keep appointments with authorities and courts where his or her appearance in person is necessary .","Section CARDINAL no . CARDINAL of LAW provides that anyone who repeatedly contravenes a restriction of residence imposed under LAW \u00a7 CARDINAL shall be sentenced to a term of imprisonment not exceeding one year , or to a fine .","The relevant provision of ORG relating to ORG , adopted on DATE , reads :","Article CARDINAL . Freedom of movement","\u201c Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances . \u201d","LAW , adopted on DATE , provides :","\u201c Everyone lawfully within the territory of a ORG shall , within that territory , have the right to liberty of movement and freedom to choose his residence . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101965","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2010,"docname":"CASE OF VRABEC v. SLOVAKIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13","judges":"J\u00e1n \u0160ikuta;Lech Garlicki","text":["The applicant was born in DATE and lives in GPE .","On DATE enforcement proceedings were initiated against the applicant .","On DATE ORG dismissed the applicant 's objections against the enforcement and its costs .","On DATE the district court dismissed the applicant 's request for adjournment of the enforcement . On DATE the decision was upheld by ORG .","On DATE the applicant requested the district court to issue an interim measure and to discontinue the enforcement .","On DATE the district court adjourned the enforcement pending its decision on the applicant 's request for the enforcement to be discontinued . On DATE the regional court quashed the above decision .","On DATE the applicant again requested discontinuation of the enforcement proceedings .","On DATE the district court rejected the applicant 's request for interim measures .","On DATE the district court dismissed the applicant 's request for discontinuation of the proceedings .","On DATE the regional court , on the applicant 's appeal , quashed the first - instance decision and remitted the case to the district court for further examination .","On DATE the district court discontinued the proceedings and held that it would deliver a decision on costs once the decision to discontinue the proceedings became final .","On DATE the applicant 's representative informed the ORG that the decision has not yet become final .","On DATE the applicant complained to ORG about length of the proceedings before ORG and claimed the equivalent of MONEY ( ORG ) at that time as just satisfaction for non - pecuniary damage suffered .","ORG examined the period of the proceedings after DATE .","On DATE it found that the district court had violated the applicant 's right to a hearing without unjustified delay , ordered the latter to avoid further delays and to reimburse the applicant 's legal costs .","It concluded that these represented a sufficient just satisfaction and did not award the applicant any award for non - pecuniary damage . It referred to the fact that the applicant was the liable party in the proceedings . It further held that the applicant had failed to specify the allegedly suffered harm ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107174","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF USHAKOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 3 (substantive aspect)","judges":"Anatoly Kovler;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and is serving a prison sentence in LOC .","From DATE to CARDINAL DATE the applicant was held in remand prison no . ORG in the LOC pending criminal proceedings against him .","The Government and the applicant provided differing descriptions of the conditions of the applicant \u2019s detention .","The Government submitted extracts from the register of the remand prison population . They further submitted data concerning the size of the cells based on statements made by the remand prison officers . In particular , they provided the following information :","The applicant spent a considerable amount of time outside the prison cells . He participated in questioning and other investigative activities , and met with his lawyer , relatives and other persons . He was allowed TIME daily walk in a specially equipped prison yard and DATE showers . During inspections and cleaning of the cells the inmates , including the applicant , were taken outside the cells as well .","All the cells of the remand prison were equipped with natural and artificial ventilation which was in a good working order . The windows were covered with metal bars which did not prevent daylight coming through . The artificial day lighting in the cells was in compliance with the applicable specifications and was on from TIME At TIME low - voltage bulbs were used to maintain lighting for surveillance and practical reasons ( for example , to provide lighting in the toilet area ) .","Each cell was equipped with a toilet and a sink located in the corner . The distance between the table and the toilet was CARDINAL and the distance between the toilet and the nearest bed was QUANTITY The toilet was separated from the living area of the cell by a partition measuring QUANTITY in height .","NORP The applicant contested the description of the conditions of his detention in the remand prison provided by the Government . In particular he provided the following information :","While it was true that on several occasions the applicant was transported to the courthouse to attend hearings , the rest of the time he was confined to his cell . He was allowed to see his lawyer only once . That meeting lasted no longer than TIME . The meetings with the officers of the remand prison which took place outside his cell did not exceed TIME .","The applicant was provided with an individual bed only when detained in cell no . CARDINAL . For the rest of the time he had to share the bed with CARDINAL other inmates .","The ventilation did not function properly and was insufficient due to the overcrowding of the cells . The air was stuffy and humid . It was filled with tobacco smoke . Dirty condensation accumulated on the walls and the ceiling and then trickled down . The light was constantly on . Low - voltage bulbs were not used . The windows were covered with metal bars both on the inside and outside .","The flushing system in the toilet did not provide a sufficient amount of water to keep the toilet clean . The odour emanating from the toilet was very bad and the inmates had to burn paper to mask it . The distance between the toilet and the dinner table was QUANTITY in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL . In cell no . CARDINAL the toilet was located QUANTITY away from the dinner table .","In his submissions of CARDINAL June DATE , the applicant alleged that on DATE of the trial hearings he had been transported to and from the courthouse in appalling conditions . The vans were overcrowded and each trip lasted TIME .","On DATE the applicant was convicted of another drugrelated offence and sentenced to DATE and CARDINAL months\u2019 imprisonment in a high - security colony . He was sent to serve a prison sentence in correctional colony no . IK-CARDINAL in LOC .","The applicant was held in the colony from CARDINAL DATE to CARDINAL DATE .","The applicant was provided with an individual bed , bedding and cutlery . While he was held in the disciplinary cell he was allowed a DATE walk which lasted TIME in a specially equipped yard . He also spent time outside the cell when taking a shower . He was invited to meetings with the administration of the correctional colony .","The dormitories and the disciplinary cell were equipped with artificial and natural ventilation . The dormitories had CARDINAL windows and QUANTITY lamps . The disciplinary cell had a window measuring CARDINAL by CARDINAL sq . m. It was reinforced with metal bars which did not prevent daylight coming into the cell . The cell was provided with CARDINAL daylight lamps . At TIME low - voltage bulbs were used to light the cells for surveillance and practical reasons .","The dormitories had separate restrooms ensuring sufficient privacy . The toilet in the disciplinary cell was placed in the corner QUANTITY away from the dinner table . The distance between the toilet and the nearest bed was QUANTITY","The applicant contested the description of the conditions of his detention in the colony . In particular he provided the following information :","There was no artificial ventilation in disciplinary cell no . CARDINAL . The opening of a window pane measuring CARDINAL by QUANTITY was insufficient to ensure the proper ventilation of the cell . The lighting was dim and insufficient . The toilet was not cleaned and reeked . It was located QUANTITY away from the dinner table . The windows were covered with CARDINAL rows of metal bars inside and outside .","For the whole time the applicant was detained in the disciplinary cell he was never taken for a walk outside .","On DATE and CARDINAL DATE the administration of correctional colony no . IK-CARDINAL allegedly opened the applicant \u2019s letters addressed to his representative before ORG .","The applicant \u2019s letter dispatched on CARDINAL DATE did not reach his representative .","The applicant \u2019s letters of CARDINAL and CARDINAL DATE addressed to his representative were allegedly dispatched with a delay of DATE respectively .","Section CARDINAL of ORG of DATE provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell .","Article CARDINAL \u00a7 CARDINAL of the Penitentiary Code of DATE provides for a minimum standard of QUANTITY of personal space for male prisoners in correctional colonies ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107705","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2011,"docname":"CASE OF V. v. SLOVENIA","importance":4,"conclusion":"No violation of Art. 8","judges":"Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert","text":["The first applicant has CARDINAL children from previous relationships ; CARDINAL of them is a girl , X , born in DATE , whose biological father \u2019s identity remains unconfirmed . The other CARDINAL daughters are grown up . They have never lived with the applicants .","The applicants have been in a relationship since DATE and were married in DATE . In DATE twins , a girl W and a boy Y , were born to the applicants . On DATE , W died in suspicious circumstances . The autopsy report showed that she had several bone fractures and had sustained severe injuries to her internal organs . On DATE , the first applicant was found guilty of continuously causing severe bodily harm to W and of negligent manslaughter of PERSON She was sentenced to DATE in prison . The second applicant was found guilty of negligent manslaughter of W and was sentenced to DATE in prison . ORG confirmed the verdict and the proceedings are currently pending before ORG following the request for protection of legality ( extraordinary remedy ) lodged by the applicants . The first applicant started serving her sentence on DATE . The second applicant has a serious heart condition and his prison sentence has been temporarily suspended .","On DATE , following W \u2019s death , a social worker from ORG ( hereinafter referred to as \u201c the ORG \u201d ) called the applicants and asked them to bring X and Y , who both lived with the applicants , to the paediatric hospital for examination . The children stayed in the hospital until DATE . In the meantime , it was established that X was traumatised by the death of W and that Y had delayed psychophysical development . Measures were taken by the social workers to find a suitable foster family that would receive X and Y.","Following several meetings with the applicants and in view of psychological reports prepared during ORG and ORG hospitalisation , ORG , on DATE , issued an emergency care order removing Y , then DATE , from the applicants and PERSON , then DATE , from the first applicant , and placing them in foster care . In the emergency care order , ORG referred to suspicious circumstances of W \u2019s death and found that there were indications of possible domestic violence and neglect . It also noted that the applicants had not been critical of their situation and that X and Y would have been at risk if left at home . The order stated that contact between the applicants and Y as well as between the first applicant and X be allowed for TIME DATE under supervision , beginning on DATE .","On DATE , presumably before the children were taken to the foster home , ORG issued a decision allowing the enforcement of ORG emergency care order . The applicants were verbally informed of the order on DATE . They received it in writing on DATE .","On DATE the applicants appealed against the emergency care order stating , inter alia , that a medical examination had not shown any signs of maltreatment , that no measures had previously been taken against them by ORG and that they had taken proper care of X and Y. They also submitted that CARDINAL of the first applicant \u2019s children had been successful in school and were now already grown up , and also that X had no learning difficulties . Their appeal was dismissed by ORG ( hereinafter referred to as \u201c the Ministry \u201d ) on DATE .","The applicants challenged that decision before ORG . The latter , relying on ORG findings , rejected their claim on DATE . It found that the procedure had been conducted properly .","NORP In the meantime , ORG established an internal expert panel consisting of CARDINAL employees , namely a sociologist , a lawyer and a social worker ( hereinafter referred to as \u201c the GPE panel \u201d ) . It also obtained a psychological report concerning X and Y. After each contact between the applicants and the children took place , a record was made by the social workers . The applicants were offered counselling , which they refused . On DATE a hearing was held before ORG , at which the applicants were present . On DATE ORG issued an ordinary care order , by which Y was removed from the applicants , X was removed from the first applicant , and both were placed in foster care . At the same time , ORG set out contact arrangements , stating that the applicants could see Y and the first applicant could see PERSON under ORG supervision for TIME DATE . It found that the children were living under psychological pressure and were neglected , in that they did not have a proper behaviour model at home . Y needed more support to catch up in his development and X needed therapy due to being under severe psychological pressure . Her psychological needs were entirely ignored by her mother , who was extremely egocentric . The applicants were advised to undergo parenting counselling .","The applicants appealed against the care order . On DATE the Ministry dismissed their appeal , by which the order became enforceable .","The applicants challenged this decision in a claim before ORG . On DATE the court issued a judgment rejecting their claim .","On a further appeal ORG , on DATE , quashed ORG judgment and ordered a re - examination of the case in so far as the removal of the children and their placement into foster care were concerned . They found that a removal order could only be issued if supported by a report from an independent expert . In the instant case , however , the psychologist who had drawn up the report was an employee of ORG .","Subsequently , ORG again considered the case and quashed the ORG \u2019s decision on DATE . It ordered that an independent expert be appointed and that the applicants\u2019 ability to ensure the normal mental and physical development of X and Y , which was crucial for the care order , be further assessed . On DATE the ORG ordered ORG to re - examine the case .","On DATE , following the quashing of the ordinary care order by ORG , ORG issued a new emergency care order , by which the children were to remain in the foster home . In the written grounds , it stated that the reason for re - examination of the matter concerning the ordinary care order was the fact that no independent expert had been appointed and that the higher courts had given no indication that the children should be returned to their parents . In addition , ORG referred to the fact that an indictment had been lodged against the applicants , alleging that they had caused the death of W by negligence , which would have in itself been a sufficient reason for taking their remaining minor children into public care . The order did not set out any new contact arrangements , as this issue was pending before ORG ( see paragraph CARDINAL below ) .","The applicants appealed against the emergency removal , on the grounds that it was unjustified . The appeal was rejected by ORG , which found that there were sufficient grounds for emergency placement of the children in foster care . On DATE the applicants lodged a claim with ORG , which was rejected on DATE , as the court agreed that the facts as established by ORG and its panel were sufficient to justify the emergency placement of the children in foster care pending the outcome of the proceedings concerning the ordinary care order .","In the meantime , on DATE , ORG appointed a forensic expert in psychology to draw up a report on the applicants\u2019 capacity for parenting . He submitted his report on DATE . On the basis of the examination of the applicants , Y and X , the first applicant \u2019s other daughters , the social workers and neighbours , and having regard to the circumstances surrounding W \u2019s death , the expert found that ORG and ORG psychophysical development would be at a serious risk if they stayed with the applicants , who were unable to satisfy their basic needs . It found that the second applicant was passive and as such unable to take an active role in the family , and that the first applicant had developed an \u201c emotionally unstable personality disorder with querulous and socially inadaptable behaviour \u201d . He also found that the contact should certainly not be extended and that the applicants should be given clear limits as regards their contact with Y and X.","On DATE a hearing was held before ORG , at which the applicants were present .","On DATE the Ministry allowed the applicants\u2019 request for a change of venue . The case concerning the care order was consequently allocated to ORG ( hereinafter referred to as the \u201c ORG \u201d ) , which appointed their internal expert panel ( hereinafter referred to as the \u201c PERSON panel \u201d ) on DATE . After the change of venue , ORG regularly reported to ORG on the contact between the applicants and the children .","On DATE , on the basis of the reports collected so far , the PERSON panel issued an opinion that the applicants were unfit parents . It also noted that the children could potentially be returned to their parents if the latter underwent appropriate therapy .","A hearing was held on DATE before ORG , which allowed the evidence proposed by the applicants - an opinion of another independent expert , reports from the primary school , an interview with X -and ordered a home visit to be carried out . An interview was also held with the applicants , foster parents and a social worker with responsibility in the case .","NORP The expert in psychology requested by the applicants was appointed on DATE . She was asked to assess the applicants\u2019 capacity for parenting , whether the return of the children would be in the latter \u2019s interest , and what the children \u2019s wishes were . On DATE additional questions proposed by the applicants were forwarded to the expert for reply . Subsequently , a forensic expert in psychiatry was also requested to prepare a report .","On DATE the expert in psychology submitted her report . She concluded that the applicants were unable to take proper care of X and Y , and that it was in the children \u2019s interest to stay with the foster family . She also noted that contact should continue to be supervised and should not be extended . According to the opinion of the psychiatrist , both applicants had a personality disorder although the first applicant \u2019s disorder was particularly severe . The report suggested that the normal development of the children was likely to be jeopardised if they returned to their primary family .","On DATE the PERSON panel , on the basis of the new expert reports , issued another report proposing that a care order be issued and that the children remain in foster care . The PERSON panel also took into account the social workers\u2019 reports drawn up after each contact between the applicants and the children , and noted that the applicants had not improved their behaviour towards the children , despite being constantly provided with advice in this respect .","On DATE a hearing was held before ORG at which the applicants , who contested the experts\u2019 reports and the report by the PERSON panel , were also present .","On DATE ORG , having regard to the evidence obtained in the proceedings , delivered a care order by which it decided that Y and X should be taken from the first applicant and Y should also be taken from the second applicant . Both should remain in foster care . It proposed that the parents undergo appropriate therapy , after which their parenting ability would be examined again .","The applicants lodged an appeal with ORG , which was dismissed . At that point the second ordinary care order become enforceable and replaced the emergency order of DATE .","On DATE the applicants challenged this decision before ORG .","On DATE ORG delivered a judgment rejecting the ORG claim . The court , having regard to the evidence collected in the administrative proceedings , concurred with the findings of the administrative authorities and rejected the ORG claim . The applicants did not appeal .","During the proceedings the applicants CARDINAL times requested access to ORG file , which was granted .","On DATE the applicants requested ORG to initiate proceedings for the return of the children . They stated that no measures had been taken with a view to reuniting the family ; in particular , that a \u201c project group \u201d , including them , should have been set up and had not been . It should also have included X and Y and the foster parents and should have aimed to draw up a schedule for the return of the children , as stipulated in the domestic law .","On DATE ORG dismissed the request as essentially the same as the issue of the children \u2019s care and contact , which had already been decided by the decision of DATE , which was enforceable .","On DATE the ORG dismissed an appeal by the applicants . However , on DATE ORG quashed that decision and ordered a re - examination of the case , finding that the ORG request concerning the implementation of the foster care and the proceedings concerning the taking of the children were CARDINAL separate issues with different legal bases .","On DATE the applicants attended a meeting with ORG , where they were invited to explain their request . On DATE ORG discontinued the proceedings . The applicants appealed , stating that ORG had conducted proceedings arbitrarily and it should have invited them formally and in writing to correct the request if it considered it incomplete . On DATE the Ministry set aside ORG decision of DATE , finding that the applicants had never withdrawn their request and that ORG should therefore have decided on it . However , it stressed that although this was a separate request it was nevertheless connected to the issue of the taking of the children and should be decided at the same time . Consequently , ORG decided the issue in its decision of CARDINAL DATE , by which the children were to remain in foster care . The ORG appeal and a claim to ORG was rejected ( see paragraphs CARDINAL above ) .","ORG has remained responsible for the contact arrangements , counselling and monitoring of the children \u2019s foster care . It set out contact arrangements in its emergency order of DATE and then in its ordinary care order of DATE . The applicants were allowed to see X and Y under the ORG \u2019s supervision for TIME DATE ( see paragraphs CARDINAL and CARDINAL above ) . On DATE the applicants requested contact with X and Y during DATE . This was rejected by ORG as in breach of the valid decision on contact arrangements . On DATE the applicants requested that their contact take place out of doors and to have X and Y at home at DATE . The latter request was transferred to ORG on DATE ( see paragraph CARDINAL below ) .","After the children were taken into foster care , reports were regularly prepared by social workers indicating several problems which occurred during the visits , in particular due to the first applicants\u2019 abrupt behaviour and the pressure she put on the children as regards their behaviour towards her , in particular on X , whom she pressured , among other things , to write requests to return home . The first applicant was intensively involved in the organisation of the leisure activities and schooling of X and problems regularly occurred in this respect as well . On DATE ORG also decided that the first applicant should not have telephone conversations with X , to whom she had given a mobile phone and made frequent calls , as this was causing X a lot of stress . During DATE after the children were taken into foster care the applicants often tried to approach them at the foster GPE home or at school , for which reason a restraining order was requested by ORG . In DATE ORG prepared a care plan , which included steps planned with a view to possible family reunification , such as assistance in order to improve contact , the applicants\u2019 attendance at special counselling and therapy sessions and attention to be given to the children \u2019s wishes as well as regular reviews of the situation with reunification in mind . The plan also noted that the return would depend on whether the applicants would be sentenced in the criminal proceedings .","ORG regularly organised thematic meetings at which social workers discussed the situation regarding X and Y. The applicants had been regularly ( often DATE and occasionally DATE ) invited to discuss issues relating to X and Y as well as to attend consultations . The reports drawn up during or after these meetings indicated that the applicants did not have a constructive attitude and were unwilling to undergo therapy .","NORP In addition to the above meeting , the \u201c individual project group \u201d was set up in DATE and has held meetings since then . The applicants , foster parents and social workers dealing with the case were usually invited to these meetings , where they discussed issues relating to the day - to - day life of the children and the applicants\u2019 parenting and visiting arrangements .","The reports of the meetings between the applicants and the social workers show that both applicants were involved in contact arrangements and had the opportunity to express their opinion as regards X and Y. The reports also indicate that the applicants were normally also able to have contact with the children on special occasions such as birthdays , ORG \u2019s first communion and the applicants\u2019 marriage ceremony .","It would appear that during DATE or so the contact between the applicants and the children has improved and is now no longer being supervised . At the meeting of the \u201c individual project group \u201d held on DATE , at which the applicants were present , the following was agreed : contact would take place DATE , namely once on DATE ( from TIME , with the applicants picking up and returning the children ) and once on DATE ( from TIME , with a social worker bringing the children to the applicants\u2019 home and picking them up at the end of the visit ) . According to the information supplied by the applicants following the first applicant \u2019s incarceration , the second applicant takes Y and X from the foster family and spends DATE with them DATE . ORG report of CARDINAL DATE also indicates that during each meeting the second applicant takes Y and X to visit the first applicant in prison and afterwards spends the rest of DATE with them . The latter report also noted that Y expressed the wish to visit the first applicant once DATE and the second applicant DATE , and did not wish to visit the applicants without the presence of X. Likewise , X stressed in her letter to the first applicant dated DATE that she wished to have contact with her no more than once a month .","On DATE ORG forwarded to ORG the applicants\u2019 request of CARDINAL DATE for extended contact with X and Y ( see paragraph CARDINAL above ) . The court held CARDINAL hearings and appointed an expert in psychology . The court regularly inquired about the progress of the criminal proceedings against the applicants : the latest inquiry was made on DATE . The proceedings appear still to be pending .","The relevant provisions of LAW read as follows :","\u201c ...","The state shall protect the family , motherhood , fatherhood , children and young people , and shall create the necessary conditions for such protection . \u201d","\u201c Parents have the right and duty to maintain , educate and raise their children . This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child \u2019s interests .","... \u201d","LAW ( Official Gazette no . CARDINAL\/CARDINAL \u2013 official consolidated version ) provides in so far as relevant :","\u201c ( CARDINAL ) A constitutional appeal alleging a violation of human rights or fundamental freedoms may , under the conditions determined by this LAW , be lodged against individual acts by which state authorities , local authorities , or holders of public power have decided on rights , obligations , or legal interests of individuals or legal entities .","... \u201d","Relevant provisions concerning removal of children and foster care are included in the Marriage and Family Relations Act ( Official Gazette no . CARDINAL - official consolidated version , hereinafter referred to as \u201c the LAW \u201d ) . They read as follows :","\u201c ( CARDINAL ) A welfare authority can remove a child from his or her parents and place him or her in the care of foster parents or an institution , if the parents have neglected him or her or if this is necessary for other reasons for the protection of the child \u2019s interest .","( CARDINAL ) The removal of the child does not affect the other rights and responsibilities of the parents .","( CARDINAL ) The welfare authority is responsible for the monitoring of the implementation of the above measure . \u201d","( CARDINAL ) A welfare authority can place a child in foster care if he or she does not have his or her own family or can not live with his or her own family for different reasons or if his or her physical and psychological development is at risk at home .","... \u201d","\u201c Following the placement of a child in foster care , the welfare authority must strive to eliminate the reasons which led to the removal . \u201d","Furthermore , section CARDINAL of LAW ( Official Gazette no . CARDINAL\/CARDINAL - official consolidated version ) provides , in so far as relevant , as follows :","\u201c When welfare authorities deal with the administrative matters concerning rights and interest of children according to sections CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW , they shall , before taking any decision , ... obtain a report from an internal expert panel ( strokovna komisija ) and hold a hearing .","The panel referred to in the preceding paragraph is formed by the expert council of the welfare authority ... \u201d","LAW ( Official Gazette no . DATE ) provides in its LAW grounds on which an appeal on points of law can be lodged with ORG . The grounds are provided as alternatives . The relevant text reads as follows :","( CARDINAL ) A judgment of a first - instance court can be challenged by an appeal on points of law , which shall be lodged DATE of the service of the judgment on the party .","( CARDINAL ) The appeal on points of law is admissible if :","...","it concerns an important legal questions ... ;","it the impugned decision has serious consequences for the party ;","... \u201d","As regards the contact rights of parents and estranged children , the old section CARDINAL of LAW ( in force until DATE ) provided that the parent who did not live with his or her child had a right to have contact with him or her unless ORG decided otherwise .","NORP However , ORG set aside this provision in its decision no . U - I-CARDINAL\/CARDINAL delivered on DATE . This decision was primarily concerned with the contact rights of parents who did not live together but had never been married , and therefore the issue of contact arrangements could not have been part of divorce proceedings before a court . ORG found that the system whereby the welfare authorities decided on contact arrangements was unconstitutional in that it did not provide for the same level of protection of the children \u2019s rights to participate in the proceedings as would have been provided by way of court proceedings . ORG however noted that the system was not problematic in respect of the protection of the GPE rights of participation . Parents were able to be sufficiently involved in administrative proceedings by having the right to express their opinion , to request evidence , to comment on submissions by other participants , to participate in the hearing and to lodge appeals . Because it was determined that there was insufficient protection for children \u2019s rights , ORG ordered that new legislation should be adopted within DATE with a view to transferring matters concerning contact arrangements to courts .","As a result of the above ORG decision , an amendment to LAW ( Official Gazette no . CARDINAL ) was adopted and entered into force on DATE . According to the transitional provision , proceedings instituted before the entry into force of the amendment were to be completed before the administrative authorities . However , the requests concerned by the amendment made to welfare authorities after the above mentioned date should be automatically transferred to the court .","Section CARDINAL of the amended LAW reads , as far as relevant , as follows :","\u201c ( CARDINAL ) A child has a right to have contact with both parents . Both parents have a right to have contact with their children . The contact is meant primarily to serve the child \u2019s interest .","...","( CARDINAL ) The court can withdraw or restrict the right to contact only if this is necessary for the protection of the child \u2019s interest . Contact would not be in the child \u2019s interest if it caused psychological pressure or if it caused risk to the child \u2019s physical and psychological development . The ORG can decide that the contact should be carried out under the supervision of a third person or by means other that visits if this is necessary in order to protect the child \u2019s interests .","...","( CARDINAL ) Before taking a decision under the ... fifth paragraph of this section , the court must obtain an opinion from the welfare authority . The court shall consider also the child \u2019s opinion , if he or she is able to express it himself or herself , or with the assistance of another person he or she trusts and has chosen ... \u201d","NORP Moreover , section PERSON was introduced with the above - mentioned amendment . It provides that the child has a right to have contact with the extended family members , apart from his or her parents , if he or she is personally attached to them . These included the current or previous spouse or partner of CARDINAL of his parents . The contact should be agreed between the parents , the child , if he or she is able to understand the matter , and the persons in question . The welfare authorities should assist in the matter . If no agreement is reached , the court shall decide on the issue further to a request lodged by a child who is DATE or older , the persons in question or the welfare authority ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69667","languageisocode":"ENG","respondent":"MDA","branch":"ADMISSIBILITY","date":2005,"docname":"CARMUIREA SPIRITUALA A MUSULMANILOR DIN REPUBLICA MOLDOVA v. MOLDOVA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON a ORG , is an organisation of NORP from GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE several natural persons joined together to form the applicant organisation \u2013 PERSON GPE DATE an organisation of NORP with the goal of having the NORP religion officially registered in GPE and building a Mosque in the city of PERSON . On the same date the organisation adopted its articles of association .","Pursuant to LAW ( see below ) , which requires religious denominations active in GPE territory to be recognised by means of a government decision , the applicant organisation applied for recognition on DATE .","On DATE the Government replied that they needed more time in order to examine and observe the activity of the organisation .","On DATE the applicant organisation lodged a new request with the Government .","On DATE the applicant organisation brought an action against the Government seeking an order to oblige the Government to reply to their request and to register their religion .","On DATE ORG obliged the Government to give an answer to the applicant 's request . It did not oblige the Government to register their religion . The applicant organisation appealed against this judgment .","On DATE ORG upheld the applicant 's appeal , quashed the judgment of CARDINAL DATE and sent the case for re - examination to ORG in a different formation of judges .","On DATE ORG decided that it could not oblige the Government to register the NORP religion because the applicants had not submitted to the Government all the documents provided for in Articles DATE ( see below ) . The applicant appealed against this judgment .","On DATE ORG upheld the judgment of ORG , confirming that the applicant organisation had failed to submit to the Government a document setting out the fundamental principles of their religion . ORG also noted that the Government had informed the applicant organisation on several occasions that the documentation it had provided was incomplete , but the applicant failed to remedy this .","The relevant provisions of LAW ( Law no . CARDINAL of DATE ) in force at the material time read as follows :","Everyone has the right to freedom of thought , conscience and religion . This right must be manifested in a spirit of tolerance and mutual respect and it includes freedom to change his religion or belief and freedom , either alone or in community with others and in public or private , to manifest his religion or belief , in worship , teaching , practice and observance .","Freedom to manifest one 's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights and freedoms of others .","...","No one can be forced to practice or not to practice the rites of a denomination ...","...","The confessional intolerance , manifested through acts which obstruct the freedom of a denomination recognised by the ORG , constitutes an offence and shall be punished in accordance with the law .","...","\u201c Denominations shall be free to organise and operate freely on condition that their practices and rites do not contravene the LAW , the present LAW or the legislation in force .","Denominations that do not comply with this condition shall not qualify for ORG recognition .","...","In order to be able to organise and operate , denominations must be recognised by means of a government decision .","Where a denomination fails to comply with the conditions laid down by the first paragraph of section CARDINAL of the present Act , recognition may be withdrawn .","\u201c To qualify for recognition , each denomination shall submit to the ORG , for scrutiny and approval , the articles of association governing its organisation and operation . The articles of association must contain information on its system of organisation and administration and on the fundamental principles of its beliefs . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108009","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2011,"docname":"CASE OF BEGUS v. SLOVENIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska","text":["The applicant was born in DATE and lives in GPE .","The applicant is the director and sole owner of the limited liability company ORG . , which provides consultancy , engineering and representation services .","On DATE the applicant , representing his company GPE , instituted enforcement proceedings against another company , PERSON , for the payment of a bill for CARDINAL NORP tolars ( SIT ) . On DATE ORG , relying on a valid purchase order submitted by the applicant \u2019s company , upheld his request . The operative part of the court \u2019s decision stated that company PERSON should pay the debt to the applicant \u2019s company and that , if not paid , this claim should be enforced .","Company L. lodged an objection . It argued that the purchase order to which the applicant \u2019s company referred had not been signed by it but by another company . Following the objection , ORG , on DATE , set aside its enforcement decision and the case was transferred to ORG to decide on the dispute .","Further to ORG decision of DATE , the proceedings , which were governed by legislation concerning commercial disputes , were conducted before ORG . The latter held CARDINAL hearings , the first CARDINAL on DATE . On DATE the court upheld the applicant \u2019s company \u2019s claim for SIT CARDINAL and rejected the remainder finding that it had already been paid . The judgment was served on the applicant \u2019s company on CARDINAL DATE .","Following an appeal by company ORG , the judgment was quashed on DATE . Subsequently , ORG re - examined the case , and , after holding CARDINAL hearings , rejected the applicant \u2019s company \u2019s claim on DATE . The judgment was served on the applicant \u2019s company on DATE .","Further to the applicant \u2019s company \u2019s appeal , the second judgment was also quashed ( on DATE ) and the case was re - examined at a new hearing held by ORG on DATE . On DATE the court upheld the claim for the sum of SIT CARDINAL in a judgment , which was served on the applicant \u2019s company on DATE . PERSON appeal was rejected by ORG on DATE . On that date the judgment of CARDINAL DATE became final and enforceable . ORG judgment was served on the applicant \u2019s company on DATE .","On DATE the applicant \u2019s company lodged a request for execution of the above judgment against company ORG \u2019s monetary assets , movable and immovable property . The applicant was twice asked to supplement the request with the necessary documents . On DATE ORG gave a decision allowing the enforcement .","On DATE the court appointed an enforcement officer .","On DATE the applicant \u2019s company asked the court to order company L. to supply a list of its assets . On DATE the court issued an order in line with the applicant \u2019s company \u2019s request . On DATE company L. supplied the list .","On DATE the court decided that the seizure of company L. \u2019s immovable property should be considered in separate proceedings , which were discontinued , presumably without success , on DATE . Subsequently , the applicant \u2019s company was requested to specify which further assets could be subject to the enforcement .","Further to receiving a letter from company ORG \u2019s bank noting that there were no monetary assets and no transactions on its bank account , the court , on DATE , discontinued this aspect of the enforcement . The applicant \u2019s company lodged an appeal , which was rejected on DATE by ORG .","On DATE the enforcement officer informed the court that company L. had moved from its address , which was brought to the applicant \u2019s company \u2019s attention . On DATE the applicant \u2019s company informed the court of the new address .","In the course of the proceedings the applicant \u2019s company twice requested a review of alleged irregularities in the process of execution ; however , no decision appears to have been issued in reply to these requests .","On DATE company L. was removed from the register of companies following a request by the tax authorities to that effect . As a result , the enforcement proceedings were discontinued on DATE . The applicant \u2019s company did not request that the enforcement be continued against potential active shareholders in accordance with the relevant provisions of ORG , Insolvency Proceedings and LAW .","The Protection of the Right to Trial without Undue Delay Act ( Official Gazette nos . CARDINAL and DATE the CARDINAL Act \u201d ) entered into force on DATE . On DATE it became operational and has been implemented since that date . It applies to parties to court proceedings , participants in proceedings conducted under the statute regulating non - contentious procedure , and injured parties in criminal proceedings .","According to LAW , a claimant may use a supervisory appeal and a motion for deadline in order to expedite the proceedings . In addition to these acceleratory remedies , LAW also provides for the opportunity to obtain redress by means of a compensatory remedy , namely by bringing a claim for compensation . With regard to a compensatory remedy , LAW provides that CARDINAL cumulative conditions must be satisfied in order for a party to be able to lodge a claim for compensation . Firstly , during the proceedings the applicant must have successfully availed himself of the supervisory appeal or have lodged a motion for a deadline , regardless of the outcome . Secondly , the proceedings must have been terminated ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-24052","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2004,"docname":"TAHERI KANDOMABADI v. the NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is an NORP national , who was born in DATE and is currently staying in the GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in Waalwijk .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant arrived in the GPE . On DATE , he applied for asylum . In support of his claim for asylum he submitted the following :","Whilst living in GPE , the applicant and his family ( consisting of his mother and his CARDINAL brothers ) were frequently harassed by the authorities . By threatening to arrest the family members , the authorities wanted to exert pressure on the applicant \u2019s father to give himself up . The applicant \u2019s father was a professional soldier who did not agree with the regime . When he was ordered to fight against the NORP in GPE , he deserted , fled the country and applied for asylum in the GPE in DATE . Although his father was not recognised as a refugee within the meaning of LAW relating to LAW DATE ( \u201c LAW \u201d ) , he had been granted a residence permit . In order to avoid arrest , the applicant and his mother and siblings stayed with different relatives , making sure never to stay at any CARDINAL address for very long . However , the authorities always managed to trace them . The applicant was unable to go to school because his name featured on a list of people who were not allowed to attend school . According to the applicant , this was because his father was wanted by the authorities .","In DATE the GPE PERSON NORP ( Islamic Revolutionary Guards , \u201c PERSON \u201d ) came to arrest the applicant \u2019s older brother , PERSON , but his uncle PERSON had managed to organise PERSON \u2019s departure to GPE before he could be arrested . In DATE , the applicant , his mother and younger brother also managed to reach GPE . However , when PERSON was arrested in GPE and sent back to GPE , the other relatives also decided to return to GPE out of concern for him . PERSON was detained for DATE and tortured during that time . His uncle PERSON managed to obtain PERSON \u2019s release , presumably through the payment of bribes .","The applicant resumed his life of staying at different addresses .","On DATE , students demonstrated in GPE following the closure of a newspaper . TIME , security services raided dormitories on the university campus . Several students were wounded and others arrested in the raid . As a result , more student protests followed . The protests spread to other cities . Non - students , including the applicant , also participated . During CARDINAL of the demonstrations , the applicant handed out wood and stones to the students , helped set fire to a bus and a fire engine and built barricades . Troops responsible for public order charged at the demonstrators ; the applicant was beaten and his hand broken . After the demonstrations , many people were arrested and nothing more was heard of them . The applicant learnt that photographs had been taken of the people who had set fire to the bus and the fire engine . His uncle PERSON thought that it would be better for the applicant to leave the country and he put up the money for the applicant to go to GPE in DATE . Until his departure , he remained in GPE , staying in hiding at the houses of friends .","Whilst in GPE , the applicant was told by his mother on the telephone that a summons in his name , ordering him to report to ORG , had been delivered to his uncle \u2019s address .","The applicant stayed in GPE for DATE . He did not apply for asylum in GPE . A \u201c travel agent \u201d arranged for him to go to the GPE , together with a number of other people . They travelled by foot , boat , bus and train . The applicant used a NORP passport in the name of a man of NORP origin . The passport had been given to him by the \u201c travel agent \u201d . The applicant did not know through which countries his journey took him .","In the proceedings on his first request for asylum , the applicant submitted copies of CARDINAL summonses . The first ( \u201c document ( A ) \u201d ) was dated DATE and bore the number CARDINAL , the second ( \u201c document ( B ) \u201d ) was dated DATE and bore the number DATE the applicant stated that the summons bearing number CARDINAL had never been received . The summonses had been issued by ORG and stated , without giving any reasons , that the applicant was to report to a specific place at a specific time . According to the applicant , these summonses had been given to his mother .","Having considered that the applicant \u2019s asylum request could be dealt with in the so - called accelerated procedure ( see below ) , the Deputy Minister of Justice ( ORG ) rejected the request on DATE . The applicant \u2019s objection ( bezwaar ) against this decision was dismissed as manifestly ill - founded on DATE by the Acting President of ORG of GPE , together with his request for a stay of expulsion . The Acting President agreed with the Deputy Minister that the applicant \u2019s failure to submit documents capable of establishing his identity , his nationality or his travel route affected the sincerity of his account and detracted from its credibility . The Acting President further expressed doubts as to the credibility of the applicant \u2019s account concerning the problems encountered by his family in GPE allegedly as a result of the situation of his father . It was noted in this respect that the applicant \u2019s father had told the GPE authorities that he had never encountered problems for political reasons , but that he had been unable to obtain promotion in the army on account of several episodes of desertion . The Acting President also did not find it sufficiently established that the NORP authorities were aware of the applicant \u2019s participation in the student demonstrations , or that he was \u201c wanted \u201d by those authorities as a result of his participation . The applicant was found to have been inconsistent in this regard , first telling the immigration authorities that , whilst in GPE , his mother had told him that a summons had been sent to his uncle \u2019s address , yet the copies of the summonses submitted dated from the time when the applicant had still been in GPE , and they had allegedly been given to his mother . Finally , the summonses submitted were not originals and did not state the reason why the applicant was supposed to report to the authorities .","On DATE the applicant requested both the Deputy Minister and ORG to review their respective decisions in view of the fact that he had in the meantime managed to obtain original documents . ORG refused this request in a decision on DATE , stating in an obiter dictum that the documents might lead the applicant to decide to lodge a new request for asylum . On DATE the Deputy Minister informed the applicant that a request for revision could only be made in the form of a new request for asylum . The applicant was subsequently informed when and where he should formally lodge such a new request .","The applicant lodged his second request for asylum on DATE . This was also dealt with in the accelerated procedure . In support of this request he submitted the originals of the above - mentioned summonses ( A ) and ( B ) , as well as a further summons ( \u201c document ( C ) \u201d ) , dated CARDINAL DATE . He also stated that his uncle in GPE had recently managed to get a third person to obtain the following , original , documents from a file on the applicant :","\u2013 a letter \/ memo dated DATE from ORG in the LOC district to ORG , stating that the applicant was being prosecuted on charges of participation in the revolt at the university campus , and requesting the addressee to arrest the applicant ( \u201c document ( D ) \u201d ) ;","\u2013 an undated letter \/ memo ( the space after \u201c date : \u201d is left blank ) from the assistant criminal investigations officer in the police operations division to the commanding officer of border controls , in which reference is made to a letter dated DATE of the public prosecution department , and in which the addressee is requested to ensure that the applicant does not leave the country and is arrested should he try to leave ( \u201c document ( E ) \u201d ) ;","\u2013 an undated letter \/ memo ( the space after \u201c date : \u201d is left blank ) from an assistant information officer to his counterpart in the police identification division , in which reference is made to the order issued by the commanding officer of ORG relating to the identification of the suspects at the university campus , and in which the addressee is requested to make available all information concerning the background of the applicant ( \u201c document ( F ) \u201d ) ;","\u2013 an undated letter \/ memo ( the space after \u201c date : \u201d is left blank ) from an assistant information officer to the commanding officer of LOC , in which reference is made to the order issued by the ORG commanding officer relating to the arrest of those persons who had \u201c caused the university campus [ disturbance ] \u201d , and in which the addressee is requested to observe all of the applicant \u2019s movements so that he could be arrested once his whereabouts were known ( \u201c document ( G ) \u201d ) .","The applicant \u2019s second request for asylum was rejected by the Minister for ORG and Integration ( Minister PERSON Integratie , the successor of the Deputy Minister of ORG ) on DATE . The Minister held that the documents submitted by the applicant did not constitute newly emerged facts or altered circumstances . In this respect , the Minister found that no decisive importance could be attributed to the undated documents . The new documents did not lead to a conclusion different from the one reached on the first request for asylum , given that in those earlier proceedings the applicant \u2019s account had not been found wholly credible ; the applicant had not established his identity so that it could not be ascertained whether the new documents related to him , and he had failed to give a plausible explanation as to why he could not have submitted the new documents at an earlier stage . For these reasons , the Minister did not consider that the merits of the new request for asylum should be examined . He therefore rejected it by referring to the decision on the first request , in accordance with LAW ( PERSON ) .","On DATE the provisional - measures judge ( voorzieningenrechter ) of ORG of GPE , sitting in GPE , rejected both the applicant \u2019s request for a stay of expulsion and his appeal ( beroep ) against the decision of the Minister . The judge agreed with the Minister that no newly emerged facts or altered circumstances had been adduced by the applicant . Such facts or circumstances only existed if they had not played a role in the proceedings on the first request for asylum and if they could not have been submitted at that time . Facts and circumstances which had been known to the applicant prior to DATE ( the date of the final decision on the first request for asylum ) could thus in principle not be considered . The documents ( E ) , ( F ) and ( G ) could only be seen as further arguments ( nadere bewijsvoering ) relating to the first request which had already been rejected .","The applicant lodged a further appeal ( hoger beroep ) with ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , in which he argued that there were \u201c altered circumstances \u201d : his first request for asylum had been rejected because his account was found not to be credible , whereas the new documents showed that it was credible .","The further appeal was rejected on DATE , ORG finding that since documents ( E ) , ( F ) and ( G ) were undated , it could not be established that it had been impossible for the applicant to submit them in the proceedings on his first request for asylum . It was further held that the applicant had not adduced any exceptional facts and circumstances relating to him personally , on the basis of which his new request for asylum fell to be assessed outside the framework of Article CARDINAL of LAW .","Following the rejection of the applicant \u2019s first request for asylum by the Deputy Minister of Justice on DATE , the applicant \u2019s entitlement to ORG - sponsored reception facilities ceased , and it was not revived with the lodging of the second request for asylum . The applicant subsequently received some financial support from refugee and charitable organisations and private donors , but from DATE he was no longer in receipt of any kind of income . On DATE he lodged an official request to ORG for ORG opvang ORG ; hereafter the \u201c ORG \u201d ) to be provided with facilities to meet his basic needs . Having received no reaction , the applicant lodged an objection against the implied refusal ( fictieve weigering ) of his request on CARDINAL DATE . He also applied to ORG for a provisional measure . Both procedures are currently still pending .","Under LAW of LAW DATE ( vreemdelingenwet , hereinafter \u201c the LAW \u201d ) , which was in force until DATE , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political convictions , or of belonging to a particular race or a particular social group , could be admitted as refugees . The expression \u201c refugee \u201d in this provision was construed to have the same meaning as in LAW ( decision of ORG of DATE , PERSON [ ORG ] DATE , no . CARDINAL ) .","On DATE , LAW entered into force . On the basis of LAW , an alien may be eligible for a residence permit for the purposes of asylum if , inter alia ,","\u2013 he or she is a refugee within the meaning of LAW , or","\u2013 he or she has established well - founded reasons to assume that he \/ she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .","Requests which , after a first intake interview with the applicant , are judged to be inadmissible and\/or manifestly ill - founded , may be dealt with in an accelerated procedure if they do not require a time - consuming investigation , meaning that they can be processed with all due care within TIME . This fast - track procedure was introduced following a huge rise in the number of asylum applications that began in DATE .","Article CARDINAL of LAW ( PERSON ) provides that an applicant must adduce newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) if a new request is filed following a decision in which the original request is , either totally or partially , rejected . When no such facts or altered circumstances have been adduced , the administrative authority may reject the new request with reference to the decision on the original request . Article CARDINAL thus embodies the ne bis in idem principle for the administrative law . Nevertheless , an exception has been made in this particular area of the law , in that an alien may adduce exceptional facts and circumstances relating to him or her personally , on the basis of which the new request may be assessed outside the framework of Article CARDINAL . In the case of a repeat asylum application which also invokes the risk of treatment contrary to LAW , an assessment by the court outside the framework of Article CARDINAL is therefore possible . ORG of ORG has on CARDINAL occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances ( judgment of DATE , no . CARDINAL\/CARDINAL , PERSON Asiel- en ORG [ Newsletter on ORG and Refugeelaw ] CARDINAL ) . It did so on the basis of the exceptional circumstance that there was no dispute between the parties , that on his return to his country of origin , the alien would run a real risk of being subjected to treatment or punishment proscribed by LAW .","During the initial asylum procedure , an alien is entitled to reception and other facilities provided by the ORG . However , entitlements do not exist if the application has been refused in the accelerated procedure . Pursuant to LAW , an alien whose stay in the GPE is not lawful is not entitled to reception facilities . This provision applies to asylum seekers whose applications have been unsuccessful . Also , a second or further application for asylum does not confer a new entitlement to reception facilities . An exception to that basic principle can nevertheless be made if , inter alia , the asylum seeker finds him or herself in extremely compelling humanitarian circumstances ( FAC schrijnende humanitaire omstandigheden , LAW of FAC ) . The question whether such circumstances exist is always considered after it has been ascertained that the second or further application for asylum will not be processed in the accelerated procedure . It may also be considered if a person , who has submitted a second or further application , requests reception facilities due to extremely compelling humanitarian circumstances .","The ORG decides whether or not reception facilities will be provided . Appeal lies against a decision to refuse reception , but also against a failure to decide ( or to decide within a reasonable time ) on a request for reception facilities . The lodging of an appeal does not suspend the denial of reception facilities , but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings .","In a decision of DATE ( nr . ORG CARDINAL\/CARDINAL ORG ) , the provisional - measures judge of ORG of The Hague , sitting in GPE , noted that the legislator had omitted to regulate whether or not an entitlement to reception facilities existed during the period for which an interim measure pursuant to Rule CARDINAL of ORG was in place . The judge considered that , as a result of the application of Rule CARDINAL , the petitioner could not be said to be under an obligation to leave the country and his stay in the GPE was , therefore , lawful . In addition , the denial of reception facilities DATE which was aimed at encouraging a departure from GPE \u2013 might detract from the effectiveness of the interim measure . In these circumstances , the judge perceived cause to grant a provisional measure to the effect that the ORG should provide the petitioner with reception facilities pending the proceedings on his appeal against the ORG \u2019s refusal of such facilities .","In different proceedings , ORG of ORG held on DATE that , as long as an interim measure pursuant to Rule CARDINAL of ORG is in place , the stay in the GPE of the person concerned is lawful ( nr . CARDINAL\/CARDINAL ) .","Policy is based on official country reports ( ambtsberichten ) , periodically drawn up by ORG .","The country report on GPE of DATE described how student demonstrations followed parliamentary discussions on a bill relating to the press and the closure of a newspaper on DATE , which got out of hand when riot police , security forces and units of the fundamentalist PERSON raided the campus of ORG and used force against the students , resulting in a number of deaths and CARDINAL of injuries . The violent attack on the students led to mass street protests in several NORP cities , where demonstrations for greater openness and freedom were held over DATE . These led to violent confrontations with the police , security services and groups supporting conservative forces . President PERSON finally banned all demonstrations . It appeared that CARDINAL students were arrested . At the time of the country report , CARDINAL were still thought to be in detention . The CARDINAL \u201c instigators \u201d of the protests had allegedly been condemned to death , although ORG neither confirmed nor denied such reports . Prison terms varying from DATE ( for CARDINAL of the \u201c instigators \u201d ) were imposed .","The country report concluded that the human rights situation in GPE remained a source of concern , despite a few positive developments . Notably those groups or individuals perceived in GPE as a threat or potential threat to a society based on NORP values and standards were at risk of becoming victims of human rights violations . The policy formulated on the basis of this country report meant that inter alia the following persons were eligible for consideration as possible refugees :","\u2013 persons viewed , whether individually or as a member of a particular group , as a threat , or a potential threat , to a society based on NORP values and standards ; and","\u2013 intellectuals , and in particular writers , journalists or publishers , who were viewed as a threat , or a potential threat , to society on the basis of their publications or other utterances in GPE .","According to the country report of DATE , students in GPE were relatively quiet in the period leading up to the commemoration on DATE of the riots of DATE . However , a demonstration on DATE that was intended to be peaceful got completely out of hand . The police intervened when the marchers began to shout slogans , students were arrested and fights broke out . Many participants in the demonstration at ORG were in fact ordinary people , rather than students .","On DATE , PERSON announced an amnesty for CARDINAL people who had been involved in the riots of DATE . The death penalty was imposed on one of the participants in the student disturbances but not carried out , the sentence being commuted to DATE imprisonment . The CARDINAL \u201c instigators \u201d of the student unrest of DATE , who had been arrested on DATE , and on DATE sentenced to long terms of imprisonment , were acquitted on appeal in DATE .","The country report of DATE showed that the human rights situation in GPE had deteriorated in DATE and DATE . The persecution of reformist intellectuals continued unabated . Nevertheless , in DATE it was reported in the press that the speaker of the NORP parliament had requested PERSON to grant an amnesty to the DATE students still in prison because of their activities during the student revolt . CARDINAL students from this group DATE the ones who had received the heaviest sentences \u2013 were still in prison at the time of the country report . They were primarily members and sympathisers of a student union that was viewed with suspicion by the regime .","The most recent country report , that of DATE , states that , as far as could be ascertained , CARDINAL of the students imprisoned for taking part in the riots of DATE were still in prison , CARDINAL students having been released in DATE .","In the light of the most recent developments in GPE , as described in the country reports , GPE policy on admitting NORP nationals has remained largely unchanged . Every asylum seeker from GPE must still demonstrate that the personal facts and circumstances of his or her case \u2013 viewed objectively \u2013 justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to LAW if returned . Furthermore , the mere fact of a person being a student is no reason to fear persecution by the NORP authorities . In order to be eligible for a residence permit , students who have taken part in demonstrations or riots , or who occupy important positions within the student movement , have to establish that , because of that fact , they personally are viewed with suspicion by the authorities . Moreover , not every form of suspicion immediately leads to the conclusion that there can be said to be persecution within the meaning of refugee law .","On DATE ORG released the DATE Country Report on ORG in GPE . It stated inter alia :","\u201c The ORG \u2019s poor human rights record worsened , and it continued to commit numerous , serious abuses . ... Continuing serious abuses included : summary executions ; disappearances ; torture and other degrading treatment , reportedly including severe punishments such as beheading and flogging ; poor prison conditions ; arbitrary arrest and detention ; lack of habeas corpus or access to counsel and prolonged and incommunicado detention . ORG often did not receive due process or fair trials . The Government infringed on ORG privacy rights , and restricted freedom of speech , press , assembly , association and religion . ...","During a wave of student protests in DATE , vigilantes beat many protestors , and police arrested CARDINAL persons ( both protestors and vigilantes ) , according to Government figures shortly after the protests . The Government banned demonstrations planned for DATE to commemorate the killing of several students by security forces in demonstrations held in DATE and arrested more student activists at that time . \u201d","In its DATE Report DATE , covering events from DATE , ORG noted with respect to GPE inter alia :","\u201c Scores of political prisoners , including prisoners of conscience , continued to serve sentences imposed in DATE following unfair trials . Scores more were arrested in DATE , often arbitrarily and many following student demonstrations . ...","The development and fulfilment of human rights in GPE were adversely affected by the political stalemate between supporters and opponents of reform . ...","Students convicted and imprisoned after student demonstrations in DATE were reported to have been ill - treated in custody . In several cases , they faced new charges , including some relating to defamation and insult , reportedly based on statements made in prison or given to the media while on temporary leave from prison . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57423","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":1989,"docname":"CASE OF ALLAN JACOBSSON v. SWEDEN (No. 1)","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)","judges":"Gaukur J\u00f6rundsson;N. Valticos","text":["ORG In DATE the applicant bought a property of CARDINAL GPE , GPE CARDINAL , in the centre of GPE in the municipality of GPE , a suburb QUANTITY south west of GPE . On the property , which lies QUANTITY north west of GPE railway station , there is a CARDINAL - family house in which the applicant lives .","ORG When the applicant bought the property it was covered by a subdivision plan ( avstyckningsplan - see paragraph CARDINAL below ) , adopted in DATE , according to which no building could be constructed on a plot of CARDINAL m\u00b2 until sufficient water and sewage facilities had been provided for ( a water and sewage system had been built at DATE ) . The property was also covered by an area plan ( omr\u00e5desplan - see paragraph CARDINAL below ) , adopted in DATE , which described the property mainly as a public area containing green spaces , streets and car parking , and by a building prohibition pursuant to section CARDINAL of FAC ( byggnadslagen , \" LAW \" - see paragraph CARDINAL below ) issued on CARDINAL DATE and lasting until DATE . The Government also claimed that the regulations for non - planned areas ( utomplansbest\u00e4mmelser ) applied but the applicant contested this ( see paragraph CARDINAL below ) .","ORG The first building prohibition under section CARDINAL of LAW covering the applicant \u2019s property was issued by ORG ( l\u00e4nsstyrelsen , \" the ORG \" ) of GPE on DATE and was valid for DATE . This prohibition has subsequently been prolonged by ORG for DATE each time , leaving the property unaffected for only a few brief intermediate periods . The last decision was taken on CARDINAL DATE and was valid until DATE . On DATE , with the entry into force of LAW DATE ( Plan - och Bygglagen , \" LAW \" ) , the existing system for prohibitions on construction was abolished and replaced by a new one ( see paragraphs DATE below ) .","ORG On DATE the municipality of GPE was merged with the municipality of PERSON , but on DATE GPE again became a separate municipality .","ORG On DATE ORG ( byggnadsn\u00e4mnden ) of PERSON stated in a preliminary opinion , requested by the applicant , that it was not prepared to permit the division of his property into smaller plots . In its decision ORG referred inter alia to the area plan adopted in DATE .","ORG The applicant turned to ORG and requested that the municipality be ordered to adopt a town plan ( stadsplan ) for the central parts of GPE . In an opinion of DATE the ORG noted that only the ORG were competent to make the order requested . It added that , in its opinion , the planning procedure was under way to such an extent that such an order was not necessary .","ORG The applicant also complained to ORG ( justitieombudsmannen , PERSON ) who replied in a letter of CARDINAL DATE that he was well aware of the problems which could arise as a result of lengthy building prohibitions . Referring to CARDINAL of his earlier observations and to the preparatory works of the new building legislation , he concluded that there was no reason to take any other measures as a result of the applicant \u2019s complaint .","ORG On DATE ORG ( kommunfullm\u00e4ktige ) adopted a master plan ( generalplan ) relating to part of the municipality of PERSON , according to which the applicant \u2019s property was supposed to be used for building blocks of flats of CARDINAL storeys .","ORG On DATE ORG stated , in reply to a request from the applicant , that it was not prepared to grant him an exemption from the building prohibition or a permit to build a CARDINAL - family house and a garage on the property . The applicant appealed to the ORG claiming that the building prohibition was not valid . ORG rejected the appeal on DATE . It interpreted ORG decision as a refusal to grant an exemption from the prohibition and stated that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of DATE and that there were no special reasons to go against ORG assessment .","ORG In DATE ORG requested ORG to revoke , pursuant to CARDINAL of LAW , the right to build according to the subdivision plan of DATE . ORG rejected the request on DATE , stating inter alia as follows :","\" The long duration of the [ building ] prohibition depends to a large extent on changes in the objectives of the planning procedure as a result inter alia of the changes of municipal organisation which have occurred twice during the time of prohibition .... ORG considers that the prevailing building prohibition gives the municipality sufficient freedom of action for the purpose of the impending town planning . Against the objections from owners of certain properties [ among whom the applicant ] , the ORG finds that a revocation [ of the subdivision plan ] is not justified . \"","ORG On DATE the ORG decided to prolong the building prohibition for the area in question . In this decision the ORG stated inter alia that the newly created municipality ( see paragraph CARDINAL above ) should have some time to determine its position in respect of the planning of PERSON and that an application for a further building prohibition would have to be founded on a time - schedule for the amendments of the plan or on some other proposal for the termination of the prohibition . Challenging , inter alia , the lawfulness of the ORG \u2019s decision , the applicant appealed to the ORG which , however , rejected the appeal on DATE .","ORG On DATE ORG ( kommunstyrelsen ) adopted an area programme according to which the area in which the applicant \u2019s property is situated should be used for the construction of multi - family houses in DATE . It also stated that the planning procedure should be given priority . On DATE ORG adopted a building programme to the same effect .","ORG On DATE the ORG decided to issue a further building prohibition for the area in question . In the decision it was noted that the GPE planned to carry out certain work during DATE for the purposes of establishing the necessary plans . The applicant appealed to the Government , which rejected the appeal on DATE , referring to the on - going planning work .","ORG On DATE ORG stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition . The applicant appealed to ORG , arguing inter alia that the building prohibition covering his property had ceased to be effective on DATE . In a decision of CARDINAL DATE , ORG conceded that a mistake had been made and quashed its decision of DATE ; however , it took a new decision of similar content since a new building prohibition was valid as from DATE .","Subsequently the ORG decided to quash ORG decision of CARDINAL DATE and to reject the appeal against the decision of DATE : it referred to the fact that a building prohibition was in force when the ORG examined the case . The applicant appealed against the ORG \u2019s decision to ORG ( kammarr\u00e4tten ) of GPE and to the Government . On DATE the Government quashed the ORG \u2019s decision , holding that the ORG \u2019s opinion was not a binding decision and that , accordingly , it could not as such be subject to an appeal . On DATE ORG dismissed the appeal , referring to the ORG \u2019s decision . The applicant \u2019s request to ORG for leave to appeal was rejected on DATE .","ORG On DATE ORG adopted a new area plan covering inter alia the applicant \u2019s property . This plan mentioned the possibility of using the area for single or multi - family house development . According to the Government , this is the last step of the preparatory work in the making of a town plan . The validity of the subdivision plan ( see paragraph CARDINAL above ) remained unaffected .","ORG On DATE the applicant again filed a request for a preliminary opinion regarding a building permit for his property ( cf paragraph CARDINAL above ) . ORG decided however , pursuant to the rules laid down in the new CARDINAL LAW , to defer its decision on the request for a period of DATE ( see paragraph CARDINAL below ) .","ORG Until DATE a property owner \u2019s rights to erect buildings on his property were regulated by LAW and FAC ( byggnadsstadgan - \" the DATE Ordinance \" ) which was issued by the Government in accordance with powers conferred on them by LAW .","ORG LAW provided that constructions on a property required a building permit to the extent laid down by the Government . LAW of the DATE Ordinance specified that a permit was required for all new constructions ( see paragraphs CARDINAL - CARDINAL below ) except for the construction of certain buildings for public use , and small additions to existing residences and farms .","ORG Before a building could be erected on a property , LAW called for an examination of whether the property was suitable from a general point of view for this purpose . Such an examination was to be effected by planning procedure , except for non - urban areas where it could be made when an application for a building permit was under consideration .","ORG A master plan ( generalplan ) was drawn up by the municipality concerned in so far as this was required in order to establish a framework for more detailed plans . Complete master plans were seldom deemed necessary . Instead , municipalities tended to meet their planning needs by using simpler , less detailed plans , usually described as area plans ( omr\u00e5desplan ) . Such plans were not governed by law .","ORG Town plans ( stadsplan ) were prepared for those urban areas in which this was deemed necessary ( section CARDINAL ) . A town plan was more detailed than a master plan : it indicated the purposes for which the various areas could be utilised - housing , roads , squares , parks , etc . - and it also included specific provisions on their use ( section CARDINAL ) .","Building plans ( byggnadsplan ) were established for areas which had become densely populated without , however , requiring the detailed regulations provided for in a town plan .","ORG After adoption by ORG , town and building plans had to be approved by ORG . In the course of this procedure , property owners had a number of opportunities to submit their views .","ORG If a municipality failed to adopt a town or a building plan , the Government could order it to do so within a certain time - limit .","ORG Subdivision plans ( avstyckningsplan ) were old plans which only set out the borders between land intended for building and land intended for public use . These plans did not regulate the details of building itself .","When LAW was introduced it was considered inappropriate to abolish existing subdivision plans before they had been replaced by other plans . According to the transitional provisions ( section CARDINAL of the CARDINAL Act and section CARDINAL of the DATE Ordinance ) , such plans were to be regarded as building plans in so far as construction was concerned , unless ORG decided otherwise .","ORG LAW also gave the municipalities a power , which was never exercised in the present case , to acquire property required for certain public purposes in accordance with a confirmed master or town plan : for example , areas reserved for public places according to a town plan could be redeemed by the municipality ( section CARDINAL ) . The acquisition value was decided by ORG ( fastighetsdomstolen ) and was to be assessed according to the rules laid down in LAW DATE ( expropriationslagen - \" the CARDINAL Act \" ) .","Regulations for non - planned areas ( i.e. areas not covered by a town or a building plan ) inter alia prohibited the construction of new buildings on properties which were not found to be suitable in the general interest for this purpose . The Government claimed that these regulations also applied in areas covered by subdivision plans whereas the applicant claimed that such areas were exempted therefrom .","ORG Under LAW of the DATE Ordinance , the authorities could not grant permits for new constructions which would result in urban development ( t\u00e4tbebyggelse ) within an area not covered by a town plan or a building plan . Areas governed by subdivision plans were exempted from this prohibition , although the ORG could order , pursuant to LAW , that they also be covered thereby .","ORG If the question of adopting a town plan had been raised , ORG could , under LAW of LAW , also issue a prohibition on all new constructions for the area concerned . Such a prohibition was valid for DATE , but could be prolonged by DATE at a time . Exemptions therefrom could be granted where the planning procedure would not be obstructed .","ORG According to section CARDINAL of LAW , provisions on new constructions extended \" to such alterations to existing premises as could be classified as new constructions under rules laid down by the Government \" . LAW of the DATE Ordinance specified :","\" The expression \u2018 new construction\u2019 shall mean :","( a ) the erection of entirely new LOC ;","( b ) the horizontal or vertical extension of existing LOC ;","( c ) any rebuilding of the exterior or interior of LOC or any alteration thereto which , on account of its scale , may be equated to rebuilding ;","( d ) the complete or partial conversion of LOC for a use substantially different from their previous one ;","( e ) such alteration to premises as results in their no longer being in conformity with the adopted master plan , town plan or building plan or the regulations on building activities in zones situated outside the areas covered by town plans or building plans ; and","( f ) any other alteration to LOC which , in their present state , are not in conformity with the above - mentioned plans or regulations , except in the case of residential LOC comprising not CARDINAL dwellings or of outbuildings belonging to such LOC .","However , for the purposes of the present section , the expression \u2018 new construction\u2019 shall not include the installation of central heating , water closets or other sanitary amenities in LOC which , even if such installation has not been authorised , are expected to remain in their present state for a considerable length of time . \"","ORG Applications for building permits were filed with the local building committee . If an application came under a building prohibitions , it was in practice considered as including also an application for exemption from the prohibition . The applicant could , however , choose to apply for an exemption only , in order to apply for a permit when the question of exemption had been resolved .","ORG The examination of an application for a building permit involved ascertaining that the intended building would not run counter to any confirmed plan , to the regulations for non - planned areas , or to a building prohibition , and that it satisfied technical demands on construction . In the absence of such obstacles , a permit should have been granted .","ORG It was the practice among property owners to request preliminary opinions regarding their possibilities to build . Such opinions were not legally binding .","ORG Decisions by ORG to refuse building permits or exemptions from building prohibitions could be appealed to ORG .","Appeals against the ORG \u2019s decisions lay to the Government as regards exemptions from building prohibitions and to ORG as regards building permits . In the latter case a further appeal to ORG could be lodged if leave to appeal was granted . If the ORG decided both questions , appeals were to be lodged with ORG . If this ORG found that the construction did not require any exemption from a building prohibition , it would proceed to examine the permit question . Otherwise , the ORG would transfer the case to the ORG , together with an opinion on the permit issue .","ORG There were no limits to the number of times a property owner could apply for building permits or exemptions from a building prohibition . The authorities were obliged to examine the matter each time they were seized of such applications .","ORG A decision by the ORG to issue a building prohibition or to refuse at first instance an exemption from such a prohibition could be appealed to the Government .","Moreover , questions concerning the approval of town and building plans by ORG could be appealed to the Government . However , the property owners concerned could not formally require the municipality or ORG , respectively , to adopt or approve a plan .","ORG Since DATE , LAW has been replaced by DATE LAW .","ORG LAW has abolished the possibility to prescribe the kind of building prohibitions which are at issue in the present case , replacing it by a possibility for ORG to defer its decision on an application for a building permit or a preliminary opinion for a maximum period of DATE . After the expiry of this period , the permit or a favourable preliminary opinion shall be granted unless they are incompatible with a detailed plan and provided that certain purely technical requirements are met .","ORG Divisions of property into units are made by ORG ( fastighetsbildningsmyndigheterna ) . New units are to be designed in such a way as to make all properties concerned permanently suitable for their purpose with regard to their location , size and other conditions . Within areas subject to town or subdivision plans , a division must be made in accordance with the plan . If other regulations apply , e.g. a building prohibition , divisions have to comply with these also .","ORG Decisions by ORG may be appealed to the ordinary courts .","ORG LAW , LAW CARDINAL of the CARDINAL Act ( see paragraph CARDINAL above ) gives the municipalities a right to expropriate for planning purposes . It provides :","\" Within a densely developed area an expropriation may only take place if it can reasonably be assumed that the property will , within a foreseeable future , be required for a building or construction activity which is of significant public interest or if it is of importance for the purposes of a planned development or for another similar reason that the municipality takes control of the property \" .","Expropriations pursuant to this section are subject to the general provisions regarding compensation laid down in LAW ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["P1"],"non_violated_paragraphs":["P1-1"],"non_violated_bulletpoints":["P1-1-1"],"violated":true}
{"itemid":"001-120064","languageisocode":"ENG","respondent":"MNE","branch":"CHAMBER","date":2013,"docname":"CASE OF VUKELI\u0106 v. MONTENEGRO","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Helen Keller;Neboj\u0161a Vu\u010dini\u0107;Paulo Pinto De Albuquerque;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE , \u201c the former GPE \u201d .","The facts of the case , as submitted by the parties , may be summarised as follows .","On an unspecified date the applicant , represented by a lawyer , filed a compensation claim against another private person ( \u201c the debtor \u201d ) .","On DATE ORG Slu\u017eba za katastar i imovinsko - pravne poslove Bar ) issued a decision to register a mortgage ( zalo\u017eno pravo ) on the debtor \u2019s flat in favour of the applicant .","On DATE ORG ( PERSON ) in Bar ruled in favour of the applicant , ordering the debtor to pay MONEY , statutory interest and specified legal costs . This judgment became final on DATE .","On DATE ORG ( PERSON ) in GPE rejected the debtor \u2019s appeal as having been lodged out of time .","On DATE ORG issued an enforcement order ( rje\u0161enje o izvr\u0161enju ) ordering the sale of the debtor \u2019s flat by means of a public auction .","On DATE the same court established the value of the flat at issue .","NORP The public auction , scheduled for DATE , was cancelled on account of the judge \u2019s absence . No further auctions have been scheduled thereafter .","On DATE ORG Instance stayed the enforcement proceedings ( prekida se postupak izvr\u0161enja ) due to the debtor \u2019s death . On DATE this decision was posted on the applicant \u2019s door , after a prior written notice ( poslije pismenog obavije\u0161tenja rje\u0161enje pribijeno na vrata ) .","On DATE the applicant wrote to the President of ORG , urging that the decision at issue be enforced and asking that any relevant information in that regard be sent to him at his address in GPE , \u201c the former GPE \u201d .","On DATE the applicant was informed that the enforcement proceedings had been stayed on DATE .","On DATE the applicant wrote again to the President of ORG seeking that the enforcement proceedings be expedited .","On DATE the applicant proposed that the enforcement proceedings be continued in respect of the debtor \u2019s heirs .","On DATE ORG in Bar invited the applicant to provide the names and the addresses of the debtor \u2019s heirs within DATE , in default of which his request would be considered withdrawn . It was further specified that no appeal was allowed against this decision .","On DATE the applicant appealed . He submitted that he did not know the names and the addresses of the debtor \u2019s heirs , and that it was impossible for him to find this out , especially within DATE . He further maintained that the court should have acted pursuant to section DATE of LAW and should have found the debtor \u2019s heirs , or , alternatively , should have appointed a temporary representative for them without delay ( see paragraph CARDINAL below ) .","On DATE ORG requested ORG ( PERSON , podru\u010dna jedinica ORG ) to provide a property certificate ( list nepokretnosti ) for the flat at issue .","On DATE ORG provided the requested certificate , which indicated that the new owners of the flat were ORG and ORG , the registered address of the former being in GPE .","On DATE ORG rendered a decision to continue the enforcement proceedings , designating ORG and ORG as the new debtors . On DATE this decision was served on ORG The delivery to ORG failed as he appeared not to live at the provided address in GPE .","On DATE ORG requested the relevant Police Directorate in GPE to inform it if ORG had residence there and , if so , at which address .","On DATE ORG informed ORG of GPE that ORG had a permanent residence in GPE , but that he actually lived in GPE . On DATE this information was forwarded to the court in Bar .","On DATE the court in Bar invited the applicant to pay CARDINAL ORG \u201c for publishing a notice ( oglas ) in the media , pursuant to CARDINAL paragraph CARDINAL of LAW \u201d ( see paragraph CARDINAL below ) , in default of which the enforcement would be terminated ( obustaviti ) .","On DATE the applicant \u2019s objection against the previous decision was rejected as inadmissible . It was specified that , pursuant to section CARDINAL of the Enforcement Act DATE , a notice on sale was to be published in the newspapers ( see paragraph CARDINAL below ) . At the same time , the applicant was informed that on DATE another interim measure prohibiting the sale of the flat at issue had been deleted from the register of ORG , thus creating the conditions for these enforcement proceedings to be concluded ( see paragraph CARDINAL below ) .","There is no information in the case file that the notice on sale was published in the newspapers or that ORG was served with the enforcement decision of DATE . The enforcement proceedings would appear to be still pending .","On DATE the debtor passed away .","On an unspecified date in DATE a private person X instituted civil proceedings against the debtor and another private person . On DATE the court in ORG issued an interim measure prohibiting the debtor from selling the flat at issue and ordered that this measure be registered by ORG until these proceedings were concluded . On DATE the proceedings ended . On DATE the interim measure was deleted , following a relevant order of the court in GPE to that effect .","On an unspecified date in DATE a private person Y filed a compensation claim against ORG and CARDINAL other private persons . On DATE these proceedings were registered in respect of the flat at issue by ORG ( zabilje\u017eba spora ) . On DATE these proceedings ended by a court settlement of the parties . On DATE the court in Bar ordered that the note on the proceedings be deleted from the register of ORG .","On DATE the court in GPE requested ORG to calculate the interest rate applicable to the amounts of ORG and ORG CARDINAL starting from DATE . On CARDINAL DATE ORG informed the court in GPE that the requested amounts were ORG CARDINAL,CARDINAL.CARDINAL and PERSON , respectively .","There is no information in the case file as to when the applicant \u2019s lawyer ceased to represent him save for the letter of CARDINAL DATE in which the applicant asked the courts that all the relevant information be sent to him ( see paragraph CARDINAL above ) .","Article CARDINAL of the LAW provides that the ORG shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted .","The LAW entered into force on DATE .","Section CARDINAL provides that a constitutional appeal may be lodged against an individual decision of a ORG body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective domestic remedies have been exhausted .","Sections CARDINAL provide additional details as regards the processing of constitutional appeals . In particular , section CARDINAL provides that when ORG finds a violation of a human right or freedom , it shall quash the impugned decision , entirely or partially , and order that the case be re - examined by the same body which rendered the quashed decision .","The Act entered into force in DATE .","Section CARDINAL \u00a7 CARDINAL provided that enforcement proceedings were urgent .","Section CARDINAL provided that LAW would apply accordingly to the enforcement proceedings unless provided otherwise by this or another federal LAW .","Section CARDINAL provided that in cases where the enforcement proceedings were stayed due to the death of CARDINAL of the parties the relevant court would inform thereof the heirs of that party , if their names and addresses were known , as well as the opposite party . If the names or addresses of the heirs were not known the court would , without a delay , appoint a temporary representative for them .","Sections CARDINAL - CARDINAL , inter alia , set out details as regards enforcement by means of a public auction .","LAW entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with section CARDINAL , however , all enforcement proceedings instituted prior to DATE were to be concluded pursuant to LAW .","This Act entered into force on DATE and thereby repealed LAW . LAW , in particular , provides that all enforcements ( postupci izvr\u0161enja ) would be terminated in accordance with LAW .","Sections CARDINAL \u00a7 CARDINAL and CARDINAL of this LAW correspond , in substance , to sections CARDINAL \u00a7 CARDINAL and CARDINAL of LAW .","Section CARDINAL sets out details as regards the sale of the debtor \u2019s movable property .","Sections CARDINAL - CARDINAL set out details as regards the sale of real estate as well as regards enforcement by means of a public auction . In particular , section CARDINAL provides , inter alia , that a notice on sale of a real estate shall be published in the media .","Section CARDINAL provides that the proceedings shall be stayed ( postupak se prekida ) when CARDINAL of the parties passes away .","Section CARDINAL provides , inter alia , that proceedings which were stayed due to the death of CARDINAL of the parties shall be continued when the heirs or an administrator of the estate ( staralac zaostav\u0161tine ) take over the proceedings or when the court invites them to do so upon a proposal of the other party to that effect .","Section CARDINAL \u00a7 CARDINAL provides , inter alia , that when a party has a representative ( punomo\u0107nika ) , all court documents will be served on the representative .","Section CARDINAL provides , inter alia , that a decision against which a separate appeal may be filed shall be delivered in person to a party or his \/ her representative . If a person who is to be served does not happen to be at the place where the delivery is to be performed , the bailiff shall find out when and where that person can be found and shall leave a written notice with CARDINAL of the persons mentioned in section CARDINAL , requesting that he \/ she be present on a certain day and hour in his flat or office . If the bailiff does not find the person to be served even after this , he \/ she shall proceed in accordance with the provisions of section CARDINAL of this Act and the delivery shall thus be considered as having been carried out .","Section CARDINAL provides that if the person to whom a court document is to be delivered does not happen to be at home , the delivery shall be accomplished by serving the court documents on an adult member of his \/ her household , who must receive them . If such persons also happen not to be at home , the court documents shall be served on a neighbour , if he \/ she agrees .","Section PERSON provides that if the person to be served , an adult member of the household , an authorised person or an employee of a State body or a legal entity refuses to receive the court documents without legal reason , the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question . The bailiff shall make a note on the delivery slip concerning the day , hour and reason for refusal of reception , as well as the place where he or she left the court documents , and thus the delivery shall be considered accomplished .","Section CARDINAL \u00a7 CARDINAL provides that when a party to the proceedings or his \/ her representative changes his \/ her address during the proceedings they shall immediately inform the court thereof .","This Act entered into force on DATE .","This Act provides , under certain circumstances , the possibility to have lengthy proceedings expedited by means of a request for review ( kontrolni zahtjev ) , as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress ( tu\u017eba za pravi\u010dno zadovoljenje ) .","Section CARDINAL , in particular , provides that the president of the relevant court shall decide upon the request for review , which , pursuant to section CARDINAL , is to be submitted to the court before which the case is pending and must contain the name and the address of the party , the registration number of the case or other data on the basis of which it can be established to which case it refers , the data and circumstances indicating that the court is unjustifiably prolonging the proceedings , and the signature of the party .","Section CARDINAL provides that if the judge notifies the president of the court that certain procedural measures will be undertaken DATE after the receipt of the request for review , the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review .","Section CARDINAL \u00a7 CARDINAL provides that if the president of the court acted pursuant to section CARDINAL the party can not file another request for review in the same case before the expiry of the period specified in the notification .","Pursuant to section CARDINAL \u00a7 CARDINAL if the president of the court does not deliver a notification on the request for review to the party pursuant to section CARDINAL the party may lodge an appeal .","Section CARDINAL provides that this Act shall apply also to judicial proceedings initiated before the entry into force of this LAW but after DATE . In the determination of a legal remedy for violations of the right to trial within a reasonable time , the violations of the right which occurred after DATE shall be established . When establishing the violation of this right , the ORG shall also take into consideration the length of the judicial proceedings prior to DATE .","This Act entered into force on DATE .","DATE , which is when the Right to a Trial within a Reasonable Time Act entered into force , and DATE , the courts in GPE considered more than CARDINAL requests for review . ORG in GPE submitted the data only for the period DATE and CARDINAL DATE , and ORG in PERSON for the period DATE . Also , ORG in GPE and ORG in Kola\u0161in did not provide the exact number of the requests for review that had been dealt with by these QUANTITY courts . All the other courts dealt with CARDINAL requests for review in total .","DATE . In CARDINAL cases the courts issued notifications specifying the concrete actions that would be undertaken in each case within DATE with a view of expediting the proceedings ( see paragraph CARDINAL above ) . In CARDINAL cases of these QUANTITY the relevant actions were undertaken within the set time - limit ( a main hearing concluded , a decision or a judgment rendered etc . ) . In QUANTITY cases the relevant actions were undertaken within periods ranging DATE . In CARDINAL cases the relevant action specified in the notification would not appear to have been undertaken even after DATE .","In CARDINAL cases the requests for review were dismissed as unfounded . In CARDINAL cases of these QUANTITY the relevant domestic proceedings would appear to have been pending before the first - instance courts DATE , and DATE and DATE at most . In CARDINAL case the relevant civil proceedings in respect of which the request for review was dismissed as unfounded had already been pending for DATE and DATE before a first - instance court . In CARDINAL cases it is unclear how long the relevant domestic proceedings had lasted .","It is unclear how the additional CARDINAL requests for review had been dealt with . However , it would appear that in CARDINAL cases out of these CARDINAL the relevant domestic proceedings ended soon thereafter . The status of the remaining CARDINAL proceedings is not known .","Lastly , in CARDINAL cases the appellants were informed that the relevant decisions had been rendered in the meantime and in CARDINAL cases the requests for review were withdrawn ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107412","languageisocode":"ENG","respondent":"SRB","branch":"ADMISSIBILITY","date":2011,"docname":"PETROVIC v. SERBIA","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He is a licensed attorney and a member of ORG ( ORG komora ORG ) .","On DATE ORG sent the following letter to the President of the said bar association :","\u201c As you will know , ORG and its Registry are always looking to develop a relationship of trust with the community of legal professionals . Only through this mutual trust can the ORG function to ensure the highest standards of protection of human rights . It is for this reason that the President of the Second Section considers it appropriate ... to inform you about the practices of CARDINAL of your colleagues and a member of your distinguished association .","You will certainly be well informed about the volume of cases being lodged before ORG , which DATE amounts to CARDINAL . In CARDINAL of those cases , the applicants appeared to be represented by Mr PERSON , an attorney registered with ORG , but ... [ apparently ] ... having an office and most of his clients in PERSON . In the course of the examination of some of these cases , it transpired that on CARDINAL occasions Mr Petrovi\u0107 had submitted applications on behalf of deceased persons ( with the power of attorney signed on behalf of CARDINAL of those persons after his death ) . In a number of other cases , the ORG had doubts as to the authenticity of the powers of attorney supplied with the applications .","As it is necessary for the ORG to be able to rely on the veracity of the material submitted to it , the President of the Second Section , to which the cases at issue were assigned , decided , [ on DATE and ] in the best interests of the applicants , to ban Mr Petrovi\u0107 from representing applicants before the ORG [ , at present and in the future , ] ... [ T]he ORG informed Mr Petrovi\u0107 himself , as well as each of the applicants , about this development ... [ A ] letter ... [ to this effect ] ... was served upon Mr Petrovi\u0107 on DATE . Since he continued to act as the applicants\u2019 attorney [ thereafter ] , the ORG reminded him of the ban . This second letter was served upon Mr Petrovi\u0107 on DATE .","Recently , Mr Petrovi\u0107 continued acting on behalf of the applicants , sometimes as their attorney and sometimes only by preparing [ their ] submissions for the ORG , but each time requesting reimbursement of his fees , even though he is well aware that the ORG will not take into consideration such requests .","... [ Aware ] ... of the importance of our [ common ] calling and the necessity of being led by the highest moral and professional standards [ , ] ... [ we ] ... address you on this delicate subject , being certain that you will know how best to approach this issue , and make sure that those standards continue to guide members of your association in [ their ] dealings with the ORG . \u201d","In his correspondence of DATE , received by ORG , the President of ORG responded as follows :","\u201c I am hereby informing you that , ... I have [ , ] with utmost seriousness [ , taken ] into consideration ... [ the contents of your letter , particularly given ] ... the fact that in the ... [ conduct of PERSON ] ... PERSON there are elements ... [ indicating a breach of the Attorneys\u2019 ] ... [ P]rofessional [ E]thics ... [ Code ] ... I [ have also ] forwarded ... [ your ] ... letter to the Disciplinary bodies of ORG of GPE .","... [ Further , ] ... your ... letter will be considered at the meeting of ORG ... [ which shall ] ... be held at DATE .","You will be ... notified ... [ in a timely manner of ] ... the ... [ measures which ] ... will be taken by the Disciplinary bodies of ORG of GPE and ORG .","[ Since ] ... ORG [ , ] as well as the legal profession [ , ] both protect the same values , i.e. human rights , I share your opinion that attorneys - at - law [ , ] in their professional ORG , ] should fulfil the highest moral standards . \u201d","The ORG has received no further information from ORG .","The facts , as submitted by the applicant , may be summarised as follows .","On CARDINAL separate occasions , DATE , the police confiscated foreign currency from Mr A , who had been suspected of illegal currency trading .","In DATE PERSON A passed away , leaving behind a wife and CARDINAL children ( B and C ) .","In DATE PERSON employment with a public corporation was terminated .","DATE thereafter PERSON filed a civil claim , seeking salary arrears .","It is unclear as to whether these proceedings are still pending .","In DATE Mr E was involved in a traffic accident with a bus belonging to a \u201c socially - owned company \u201d ( see PERSON and ORG , ORG . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , \u00a7 \u00a7 DATE , DATE ) . In order to avoid a collision , he apparently swerved off the road and sustained injuries .","In DATE Mr F was injured in a traffic accident .","In DATE Mr G , driver of the socially - owned vehicle who had caused the accident , was convicted , fined , and ordered to pay litigation costs . Mr F was advised by the competent court to seek pecuniary and\/or non - pecuniary damages in a separate civil suit . This judgment became final DATE thereafter .","There is no information in the case file as to whether the said civil suit was ever initiated .","In DATE , in a reinstatement and personal injury case , the competent court ruled partly in favour of Mr H.","DATE , this judgment was partially quashed on appeal and remitted to the competent court of first instance for re - examination .","It remains unclear as to what happened in this suit thereafter .","In DATE the competent court ruled in favour of Mr I , ordering his former employer to pay him the accrued salary arrears . On an unspecified date thereafter this judgment apparently became final .","In DATE the competent court ruled in favour of Mr J and PERSON , ordering an agricultural cooperative to pay them a certain amount of compensation on account of the land confiscated by the former communist authorities . This decision became final DATE thereafter .","It would appear that in DATE insolvency proceedings were instituted in respect of the agricultural cooperative in question .","In DATE Mr J passed away and was succeeded by his son and legal heir , PERSON","In DATE a civil case concerning , inter alia , the re - possession of a vehicle was filed against PERSON","Shortly thereafter the competent court ordered Ms M to return the truck at issue to the plaintiff for \u201c safekeeping \u201d , until the conclusion of the civil suit .","By DATE the proceedings were concluded , the final decision being partly in favour of PERSON The plaintiff \u2019s claim as regards the re - possession of the truck was rejected .","In the meantime , however , the plaintiff had apparently sold the truck to third persons .","In DATE Mr N filed an employment - related claim with the competent court , seeking salary arrears .","In DATE the court ruled partly in favour of ORG , and in DATE this judgment was confirmed on appeal .","In DATE ORG rejected PERSON appeal on points of law as inadmissible .","In DATE Mr O filed an employment - related personal injury claim .","Within DATE the competent court ruled in favour of Mr O , but this judgment was subsequently quashed on appeal .","In DATE the competent court of first instance once again ruled in favour of Mr O.","There is no information in the case file as to what happened in the proceedings thereafter .","ORG was employed with a socially - owned company DATE . It would appear that during this time her employer had , inter alia , failed to fully cover her social security contributions .","In addition to the present CARDINAL applications , the applicant has filed CARDINAL separate applications with ORG , GPE , GPE , GPE , GPE , as well as the Former GPE . Most of these applications have yet to be assigned to a decision body . Of the said CARDINAL applications , CARDINAL correspond in character to the applications at issue in the present case , whilst as regards the remainder the applicant appears as the legal representative of his clients , who have themselves been identified as applicants ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23775","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2004,"docname":"WRETLUND v. SWEDEN","importance":3,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG . She was represented before the ORG by PERSON , a trade union lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is since DATE employed as an office cleaner at a nuclear plant in GPE . Assigned to clean the offices at the plant , she is not working in an area where she might be subjected to radioactivity and is thus not obliged to undergo any radiological examinations under the security rules for nuclear plants in GPE .","The applicant is a member of ORG ( ORG elektrikerf\u00f6rbundet ) which has CARDINAL members working at the nuclear plant . Her employer \u2013 OKG Aktiebolag ( hereinafter \u201c ORG \u201d ) , a privately owned limited liability company that owns the plant \u2013 is a member of ORG ( Energif\u00f6retagens Arbetsgivaref\u00f6rening ) . The central collective agreement in force between the CARDINAL organisations concerned ( PERSON ) does not provide for any drug or alcohol tests on the employees . In DATE , following discussions within a working group which included the ORG 's medical doctor and representatives of the company and the CARDINAL trade unions represented at the company , a drug policy programme was agreed upon which stipulated , inter alia , that job applicants should undergo a drug test in connection with the health examination before they could be employed . In DATE the working group proposed that those already employed should also undergo tests . ORG and CARDINAL of the CARDINAL trade unions then concluded local collective agreements which introduced at the plant a drug policy programme involving compulsory drug and alcohol tests for all the members of those unions . ORG wished to conclude a similar agreement with the applicant 's trade union but the union declared on DATE that it did not accept it . Nevertheless , in DATE ORG decided that also members of the applicant 's trade union should be subjected to drug and alcohol tests . As from DATE contractors ' employees who perform work for ORG are also tested . Further negotiations on this issue with the applicant 's union , held at local and central level , were fruitless and terminated at DATE .","The drug policy programme , which was replaced by a new , essentially identical , programme in DATE and which is contained in an instruction issued by ORG ( GPE syn p\u00e5 alkohol och narkotika ) , involves the taking of urine samples from the employees DATE . The tests aim to detect the use of both drugs and alcohol but the drug part of the tests concerns only the presence of cannabis . The employee is notified DATE in advance of the test , which consists of delivering a urine sample in private . The sample is taken care of by an occupational health nurse working under instructions from the hospital at GPE and the sample is sent to a laboratory at the hospital for analysis . The employee should state on a form , inter alia , what kind of medication , if any , he or she has taken during DATE . He or she further signs a referral , thereby consenting to the testing and giving permission to the laboratory to inform the occupational health service of the result . By signing a special form , the employee may also consent to his or her immediate supervisor being informed . If a test is positive , the employee will be requested to talk to the company doctor who shall provide information on possible rehabilitation measures , which may include detoxification and transfer to other duties , if the latter is motivated by reasons of security and safety . The last consequence of continued drug or alcohol abuse may be dismissal . According to the programme , a refusal to undergo the test is treated as a positive test result . However , if an employee refuses to participate in the testing for reasons of principle and there are no signs of drug abuse , the employee will not be dismissed . The ORG staff was informed of the programme , both orally and in writing , through an extensive information campaign .","In DATE ORG introduced proceedings against ORG and ORG before ORG ) seeking a declaratory judgment that the applicant was not obliged to participate in the drug and alcohol tests . The trade union claimed that ORG had no right to require that the applicant undergo such tests . The union argued that the tests were in breach of LAW , the collective agreement in force and LAW ( Sekretesslagen ; CARDINAL ) . Should the tests be considered not to be in breach of the collective agreement , the union argued , in the alternative , that the matter must be considered as unregulated . Furthermore , the union held that the individual employment contract between ORG and the applicant did not provide for such tests . Also , the union alleged that the tests were unjustified having regard to the applicant 's tasks at the nuclear plant .","By a judgment of CARDINAL DATE ORG found that the applicant was obliged to participate in the drug test but not in the alcohol test . ORG first noted that there was no legislation specifically regulating the right of employers to submit employees to drug tests against their will . It referred , however , to an earlier case before ORG ( DATE no . CARDINAL ) which concerned the question whether CARDINAL employees in a company that assembled scaffolding had been lawfully dismissed due to their refusal to submit to drug testing . In that case , the court had found that the employees had been obliged under the individual employment contracts to participate in the testing .","In the case at hand , ORG found that a general prohibition against drug testing could not be derived from the right to respect for family life under LAW . It stated , however , that in certain circumstances such testing might be incompatible with the LAW and therefore contravene NORP law . Circumstances of relevance were , for example , the employer 's interest in carrying out drug tests , the degree of interference with the individual 's integrity and the way in which the testing was performed .","The court further considered that the tests in question were naturally connected with the type of business conducted by ORG and , consequently , that the right to order employees to undergo such tests could be seen as part of the company 's right to manage and organise the work according to the central collective agreement , PERSON . Nevertheless , an employee not bound by a collective agreement on drug testing could not be obliged to submit to such testing without limitations .","In balancing the interests of the company and the individual , ORG first noted that ORG was running a nuclear power plant which entailed certain risks specific to this activity and which was subjected to far - reaching demands on security imposed by the relevant public authorities . ORG ( NORP k\u00e4rnkraftsinspektion ) had expressed the necessity of conducting drug tests as a means of upholding a drug - free environment at such plants . Moreover , ORG noted that ORG was under an obligation , under LAW ( ORG , CARDINAL ) to take measures preventing illnesses and accidents at work .","ORG thus concluded that ORG had a strong interest to carry out the tests in question in order to maintain a drug - free work environment . It observed that drug testing was made at all the NORP nuclear power plants . Furthermore , according to the court , it would be impractical to make a distinction between employees working in areas where there were special security hazards and other employees . It was moreover possible that employees would be moved from a workplace with little risk to another one where there was a specific risk . In addition , having regard to the character of ORG 's business , there was an interest in showing to the outside world that the nuclear power plant was absolutely drug - free .","Turning to the interests of the individual , the court had regard to the procedures for the tests and considered that the possible infringement of the test procedures as such on the individual 's integrity was of very little significance . It further noted that the fact that there did not appear to be any drug abuse at ORG did not as such make the testing unnecessary ; on the contrary , in the court 's view , a drug policy programme would be considerably less credible if no tests were made and , moreover , the knowledge that tests were made had a preventive effect .","Having regard to the foregoing , ORG found that the applicant was obliged to submit to the drug test . It considered , however , that there was a fundamental difference between the use of drugs and the use of alcohol , in that the former was illegal whereas the latter was legal and socially accepted . As a positive test result would lead to an investigation into the individual 's use of alcohol \u2013 a highly sensitive matter in terms of personal integrity \u2013 and as , furthermore , there were some doubts as to the accuracy of the alcohol test , the court concluded that the applicant could not be obliged to take the alcohol test .","No appeal lay against the judgment of ORG .","It is a long - standing tradition in GPE that labour market issues such as wages and other working conditions are dealt with by the parties acting on that market with little interference from public authorities . In DATE ORG ) and ORG ( Svenska arbetsgivaref\u00f6reningen ) concluded an agreement , the so - called DATE Compromise ( decemberkompromissen ) , whereby the trade unions accepted , inter alia , the employers ' right to manage and organise the work and the employers recognised the workers ' freedom of association . The agreement has been reflected in many collective agreements since .","In an early judgment ( DATE no . CARDINAL ) , ORG considered the employers ' right to manage and organise the work as forming a general legal principle . This principle has been confirmed in subsequent judgments by ORG ( see , inter alia , DATE no . DATE no . DATE ) . The right to manage and organise the work remains with the employer , unless otherwise stipulated in collective or individual agreements or in legislation . This right is , however , not unlimited . It must not be exercised in contravention of the law or \u201c good labour market practice \u201d ( \u201c god sed p\u00e5 arbetsmarknaden \u201d ) . ORG has interpreted the notion of \u201c good labour market practice \u201d in a large number of judgments ( see , inter alia , DATE no . CARDINAL ) .","It follows from the established case - law of ORG that an employer may have the right to carry out control measures in relation to the employees . Such a right may be based on collective agreements , individual employment contracts or on the employer 's right to manage and organise the work . Examples of control measures are work - time studies , physical searches ( DATE no . CARDINAL ) and drug and alcohol tests ( DATE no . DATE no . CARDINAL ) .","An employer may not exercise his right to apply control measures in an arbitrary , unreasonable or inappropriate manner . The employer must make sure that such measures are carried out in conformity with both legal provisions and \u201c good labour market practice \u201d . In assessing whether a control measure decided by the employer meets the standards of \u201c good practice \u201d , ORG has applied a principle of proportionality , balancing the employer 's interest in using the measure in question and the employee 's interest in protecting his or her integrity .","Rules on dismissal from employment are contained in LAW ( NORP om anst\u00e4llningsskydd , CARDINAL ) . A collective agreement or an employment contract is invalid to the extent that it excludes or limits employees ' rights under the LAW . Pursuant to section CARDINAL of the LAW , dismissal of an employee must be based on objective grounds ( saklig grund ) . Such grounds do not exist where it may reasonably be required that the employer provide other work for the employee . There is an extensive body of case - law from ORG dealing with the interpretation of the requirement of objective grounds . CARDINAL cases concern employees who were dismissed because of their refusal to participate in drug testing . In both cases , ORG found , in balancing the opposing interests involved , that the employer 's request that the employees undergo a drug test was justified . In CARDINAL of the cases ( DATE no . CARDINAL ) the court concluded , however , that the requirement of objective grounds for dismissal was not satisfied . In the other case ( DATE no . CARDINAL ) it reached the opposite conclusion . That case concerned a person , employed as a school help , who was suspected of having relapsed into drug abuse and was dismissed after repeatedly refusing to comply with the employer 's request that he submit to a drug test .","LAW ( NORP om k\u00e4rnteknisk verksamhet , CARDINAL ) contains basic provisions on safety in connection with nuclear activities , such as the operation of nuclear power reactors . Nuclear activities require a licence and the licence holder has full responsibility for the safe operation of the facility . A licence may be revoked if safety conditions or safety regulations are not complied with .","ORG ( ORG k\u00e4rnkraftsinspektion ) supervises all nuclear activities in GPE . It has laid down basic regulations on nuclear safety ( SKIFS CARDINAL:CARDINAL ) which entered into force after ORG judgment in the present case . In recommendations accompanying these regulations , it underlines that there should be a documented policy for dealing with different factors which could affect staff performance in a way that is relevant to safety and security , for example alcohol and drugs . Such a policy should include directions on , inter alia , the testing of personnel and the action to be taken when someone is found to be under the influence of alcohol or drugs or in the event of abuse .","Provisions on professional secrecy for medical staff working in the private sector were , at the material time , to be found in LAW in the Health and Medical Service ( Lagen om \u00e5ligganden f\u00f6r personal inom h\u00e4lso- och sjukv\u00e5rden , CARDINAL:CARDINAL ) . The obligation to observe secrecy does not usually apply if the individual concerned consents to information being disclosed . Thus , with the individual 's consent , information may be submitted to another individual , for example his or her employer .","A committee appointed by the Government in DATE to look into the issue of medical testing in the workplace submitted its report in DATE ( ORG CARDINAL:CARDINAL ) in which it found no grounds for proposing legislation concerning drug tests in the workplace . It considered that this issue should be solved by the parties on the labour market . It recommended that , where drug tests were to be applied , there should be a written drug policy , including an action programme , drawn up jointly by the employers and employees ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58276","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF BA\u015eKAYA AND OK\u00c7UOGLU v. TURKEY","importance":1,"conclusion":"Lack of jurisdiction to examine complaint under Art. 3;Lack of jurisdiction to examine complaint under Art. 14;No violation of Art. 7 (first applicant);Violation of Art. 7 (second applicant);Violation of Art. 10;Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 (independence and impartiality);Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 14+10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"John Freeland;Luzius Wildhaber;Paul Mahoney","text":["The applicants , Mr FAC and Mr PERSON , are NORP citizens . The first applicant was born in DATE and lives in GPE . He is a professor of economics and a journalist . The second applicant was born in DATE and lives in GPE . He is the owner of a publishing house , LOC .","In DATE ORG published a book written by the first applicant and entitled FAC , \u00c7a\u011fda\u015fla\u015fma , Kalk\u0131nma \u2013 Paradigman\u0131n \u0130flas\u0131 \/ PERSON ( \u201c Westernisation , Modernisation , Development \u2013 Collapse of a Paradigm \/ An Introduction to the Critique of the Official Ideology \u201d ) .","The book was an academic essay of CARDINAL pages , containing CARDINAL references , which involved a description of the socio - economic evolution of GPE since DATE and the analysis and criticism of the \u201c official ideology \u201d of the ORG . According to the titles listed in the table of contents , the author dealt with the following topics : Intelligentsia and Official Ideology ; ORG ; The Question of the National Character of the National Struggle ; The NORP and whether the National Struggle was Anti - Imperialist ; PERSON and the Individual \u2019s Role in History ; ORG : an Original Form of Bonapartism ; ORG ; ORG ; A NORP , ORG , ORG ; The Evolution of Socio - Economic Formation in ORG ; The DATE : Strengthening of the Satellitisation Process ; The Collapse of the Paradigm and the Science of Economics : Means to Legitimise Existing Tendencies .","The impugned chapter of the book included the following passages :","\u201c The NORP problem plays a significant role in the analysis of the evolution of PERSON [ ORG ( DATE ) ] and NORP social formation . The NORP problem and the process of the colonisation of GPE are indeed very important and , as such , should be the subject - matter of another book . Moreover , the problem is not only related to GPE . The formation of the domestic politics of GPE in the region ( GPE , GPE , GPE , GPE ) ( type of political regimes ) as well as the \u2018 unique\u2019 nature of relationships between these CARDINAL neighbouring GPE make it a complicated issue .","We have CARDINAL reasons why we wish to discuss the problem , even if in limited form , within the plan and scope of this book . These are to indicate the \u2018 irrationality\u2019 of official ideology and the real nature of PERSON . In other words , [ we wish ] to discuss whether what is presented as \u2018 ORG Independence War ] is in reality an \u2018 GPE Movement\u2019 or not . Without any doubt , the imprisonment of GPE ( if the small area within the borders of GPE is omitted ) within the borders of CARDINAL different GPE gives the imperialists too easily \u2018 control\u2019 over these four States . Although the NORP problem is of great importance with regard to the protection of the imperialist status quo in the region , we shall not here go into an analysis of this aspect of the problem . [ page CARDINAL ]","...","On the other hand , the racist policy of denial which has been followed with regard to the NORP since the foundation of the Republic [ DATE ] has also been an important factor in the development of the fascist movement in GPE . As a contradiction , even though \u2018 the assumption of non - existence\u2019 of ORG constitutes an important element of the official ideology , this is at the same time the weakest point of the ideology in question . It is not possible \u2018 to eliminate with the ORG a nation which exists and the objective reality continues to exist regardless of the nonsense and unfounded suspicions of the people . Of course , this does not mean that the nonsense , unfounded suspicions have no effect ! There is never a lack of those who profit from it , acquire bureaucratic , academic careers , receive high salaries , go up the step ladder of the political arena ... [ page CARDINAL ]","...","It was believed that colonialism would come to an end with the abolishment of direct political - military - police control in the GPE . DATE , however , the [ natural ] resources of ORG are carried to imperialist countries in volumes which are much higher than those of the colonial period . Therefore , the relationship between the NORP State and GPE is not of an imperialist devouring category . CARDINAL can speak of a situation which also directly embodies a political , military , cultural , ideological oppression . Thus , a direct colony status is in force . [ page CARDINAL ] \u201d","It appears that the publication of the book came to the notice of the prosecution authorities on CARDINAL DATE .","On DATE the public prosecutor at ORG ( GPE PERSON ) , having regard to the contents of the book in question , issued an indictment against the applicants . The first applicant , as the author of the book , was charged under section TIME ) of the Prevention of Terrorism Act DATE ( \u201c the DATE LAW ) with disseminating propaganda against the indivisibility of the ORG . The second applicant , as the owner of the publishing company , was charged under section CARDINAL(CARDINAL ) of the DATE Act . In the bill of indictment , the public prosecutor quoted extracts from the chapter of the book reproduced at paragraph CARDINAL above .","In the proceedings before ORG , the applicants denied the charges and sought their acquittal .","The first applicant submitted that his book had been an academic work that could not be viewed as propaganda . Being a professor he had had the duty to conduct research and publish his conclusions and could not be forced to accept the \u201c official version of reality \u201d . His book might be judged by academics , but not by the courts . It could not be permissible to try and convict someone for the expression of his or her opinion .","The second applicant submitted , inter alia , that it was not possible to make an assessment of the book as a whole solely on the basis of extracts from a single chapter . He alleged that section CARDINAL of the DATE Act was inconsistent with LAW and GPE \u2019s international obligations . There was a \u201c NORP problem \u201d in GPE and commenting or expressing ideas on this problem could not constitute an offence .","In a final statement dated DATE , the public prosecutor requested the conviction of the first applicant under section CARDINAL(CARDINAL ) of the DATE Act and that of the second applicant under section CARDINAL(CARDINAL ) , as well as the confiscation of all copies of the book . The public prosecutor considered that the offence had been committed on CARDINAL DATE .","On DATE the court acquitted the applicants . It held that the book as a whole was an academic work containing no elements of propaganda .","NORP The public prosecutor appealed . He submitted that the book alleged that a certain part of NORP territory had belonged to \u201c GPE \u201d which the NORP had annexed and colonised . Concluding that the book did indeed disseminate propaganda against the indivisibility of the ORG , he requested that the verdict be set aside .","On DATE ORG quashed the decision of the trial court and referred the case back for retrial . It gave the following reasons :","\u201c In the writings on pages CARDINAL of the book \u2026 it is stated that a part of the territory within the borders of GPE is a part of GPE which belongs to the NORP nation , and that this territory has been annexed by the NORP and is subject to colony status . ORG , without considering that [ the above ] statement , as such , exceeds the limits of criticism and constitutes dissemination of propaganda against the indivisible integrity of ORG with its territory and nation , found [ both ] accused \u2018 not guilty\u2019 .","The judgment \u2026 is contrary to the law and thus , the public prosecutor \u2019s grounds of appeal are upheld . Accordingly , it is unanimously decided that the judgment be reversed \u2026 \u201d","In a judgment dated DATE , ORG found the applicants guilty of the offences with which they had been charged . It sentenced the first applicant to CARDINAL years\u2019 imprisonment and a fine of MONEY ( TRL ) and the second applicant to CARDINAL months\u2019 imprisonment and a fine of FAC . Considering the applicants\u2019 good conduct during the trial , the court reduced the first applicant \u2019s sentence to DATE and CARDINAL months\u2019 imprisonment and a fine of GPE CARDINAL,CARDINAL,CARDINAL and the second applicant \u2019s sentence to CARDINAL months\u2019 imprisonment and a fine of GPE CARDINAL . On the other hand , the court dismissed the public prosecutor \u2019s request for an order of confiscation of the book .","In its reasoning supporting the convictions , the court stated :","\u201c After the examination of the book which is the subject of the offence , it is understood that the [ following ] statements","on page CARDINAL that \u2018 The NORP problem plays a significant role in the analysis of the evolution of PERSON [ ORG ( DATE ) ] and NORP social formation . The NORP problem and the process of the colonisation of GPE are indeed very important and , as such , should be the subject - matter of another book . Moreover , the problem is not only related to GPE . The formation of the domestic politics of GPE in the region ( GPE , GPE , GPE , GPE ) ... \u2019 , \u2018 to discuss whether what is presented as \u201c PERSON \u201d [ Independence War ] is in reality an \u201c ORG \u201d or not . Without any doubt , the imprisonment of GPE ( if the small area within the borders of GPE is omitted ) within the borders of CARDINAL different GPE gives the imperialists too easily \u201c control \u201d over these CARDINAL States ... \u2019 ,","on page CARDINAL that \u2018 the racist policy of denial which has been followed with regard to the NORP since the foundation of the Republic [ DATE ] has also been an important factor in the development of the fascist movement in GPE ... It is not possible \u201c to eliminate with the mind \u201d a nation which exists ... \u2019","and on page CARDINAL that \u2018 the relationship between the NORP State and GPE is not of an imperialist devouring category . CARDINAL can speak of a situation which also directly embodies a political , military , cultural , ideological oppression . Thus , a direct colony status is in force.\u2019","identify a certain part of GPE as GPE , declare that GPE rules this region with colony status and thus aim to disseminate propaganda against the indivisible integrity of ORG with its territory and nation . Therefore , the following sentence shall be drafted under the provisions of PERSON no . ORG which is applicable to the proven acts of the accused . \u201d","The applicants appealed to ORG , which held a hearing in the case . The applicants , while reiterating the defence made before ORG , emphasised that the latter had failed to consider the book as a whole and had erroneously based its decision on an assessment of CARDINAL chapter . The first applicant maintained that section CARDINAL of the DATE Act was inconsistent with LAW and the Convention , and he could not therefore be tried and convicted under that provision . He also referred to his previous arguments concerning the lack of clarity of the relevant provisions of LAW . The second applicant asserted that his sentence to imprisonment had been unlawful in that section CARDINAL(CARDINAL ) only authorised the imposition of a fine .","NORP In its decision of DATE , delivered on DATE , ORG upheld ORG findings and dismissed the appeals .","As of DATE the first applicant was dismissed , under section CARDINAL ) of LAW ( Law no . CARDINAL ) , from his post as lecturer at ORG . The relevant decision referred to his conviction under LAW and to his being sentenced to QUANTITY .","On DATE ORG granted a request by the prosecution for an order of seizure in respect of the sixth edition of the impugned book .","The applicants served their sentences in prison and paid the fines . After the amendments made by PERSON no . CARDINAL of DATE to the DATE Act , ORG re - examined the second applicant \u2019s case . On DATE the court held that these amendments could not be applied to his case as he had already served his sentence .","The relevant provisions of LAW read as follows :","\u201c Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . \u201d","\u201c In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence \u2026 \u201d","The relevant provisions of the Press Act DATE read as follows :","\u201c For the purposes of the present PERSON , the term \u2018 periodicals\u2019 shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .","\u2018 Publication\u2019 shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .","An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . \u201d","The relevant provisions of LAW DATE read as follows :","( before amendment by PERSON no . CARDINAL of DATE )","\u201c [ ( CARDINAL ) ] Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years\u2019 imprisonment and a fine of from CARDINAL to MONEY .","[ ( CARDINAL ) ] Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ ] . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment . \u201d","( as amended by PERSON no . CARDINAL of DATE )","\u201c [ ( CARDINAL ) ] Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years\u2019 imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .","[ ( CARDINAL ) ] Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months\u2019 and not more than CARDINAL years\u2019 imprisonment .","[ ( CARDINAL ) ] Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months\u2019 and not more than two years\u2019 imprisonment and a fine of from CARDINAL MONEY \u2026","\u2026 \u201d","The Government have submitted case - law concerning the application of section CARDINAL , details of which may be found in ORG v. GPE [ ORG ] , no . GPE , \u00a7 CARDINAL , ECHR DATE .","( before amendment by PERSON no . CARDINAL of DATE )","\u201c The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . \u201d","( as amended by PERSON no . CARDINAL of DATE )","\u201c The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .","However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL . \u201d","A summary of the relevant domestic law governing the organisation and procedure of ORG is contained in PERSON cited above , \u00a7 \u00a7 DATE ."],"violated_articles":["10","6","7"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["7"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69294","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2005,"docname":"BIJELIC v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicants , Mr PERSON and PERSON , are NORP citizens , who were born in DATE and DATE espectively and live in LOC . They are represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by their Agents , PERSON PERSON and subsequently by PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicants ' house in GPE , GPE was blown up by unknown perpetrators .","On DATE ORG introduced an amendment to LAW ( \u201c the LAW \u201d ) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation . The new legislation was to be enacted within DATE .","On DATE the applicants instituted civil proceedings in ORG ( PERSON ) seeking damages for their destroyed property from the ORG .","At a hearing held on DATE ORG decided to stay the proceedings pursuant to the above legislation . It appears that the court nevertheless continued the proceedings .","On DATE ORG gave judgment dismissing the applicants ' claim as time barred .","Following an appeal , on DATE ORG ( \u017dupanijski sud u Karlovcu ) upheld the first instance judgment . The applicants filed a request for revision on points of law and the proceedings still appear to be pending before ORG ( PERSON ) .","Meanwhile , on DATE ORG introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( \u201c the DATE LAW \u201d ) .","The relevant part of LAW ( Zakon o obveznim odnosima \u2013 Official Gazette , nos . CARDINAL , CARDINAL , DATE , DATE and CARDINAL ) provided as follows :","\u201c Liability for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from acts of violence or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . \u201d","The relevant part of LAW ( Zakon o izmjeni PERSON o obveznim odnosima \u2013 Official Gazette no . CARDINAL ; \u201c the DATE LAW ) reads as follows :","\u201c Section CARDINAL of LAW ( the Official Gazette nos . CARDINAL , CARDINAL and DATE ) shall be repealed . \u201d","\u201c Proceedings for damages instituted under LAW shall be stayed .","The proceedings referred to in sub - section CARDINAL of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts . \u201d","The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL ; \u201c the LAW \u201d ) reads as follows :","\u201c ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant 's rights and obligations or a criminal charge against him ...","( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...","( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment . \u201d","LAW , ORG no . CARDINAL ) reads as follows :","\u201c In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . \u201d","The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za \u0161tetu nastalu uslijed teroristi\u010dkih akata i javnih demonstracija \u2013 Official Gazette no . CARDINAL\/CARDINAL ; \u201c the DATE LAW \u201d ) provides that all compensation for damage to property resulting from terrorist acts is to be sought under LAW . LAW provides that all proceedings stayed pursuant to LAW are to be resumed .","LAW ( Zakon o obnovi \u2013 Official Gazette nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provides that the ORG shall grant reconstruction assistance to the owners of property damaged during the war . Any requests in this respect are to be filed with the competent administrative authority .","In its decision no . PERSON CARDINAL\/CARDINAL - CARDINAL ORG ruled that proceedings concerning damages for terrorist acts , instituted after LAW entered into force , are not to be stayed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4977","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":1999,"docname":"TROJANOWSKI AND ROGOSZ v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicants are NORP citizens , born in DATE and DATE respectively and living in GPE , GPE .","s , may be summarised as follows .","In DATE , on the basis of a licence issued by ORG , the applicants founded a company specialising in the protection of property .","On DATE ORG convicted the applicants of CARDINAL count of misappropriation and sentenced them to DATE imprisonment and a fine of QUANTITY ( old ) NORP zlotys , with DATE of imprisonment in default , and conditionally stayed enforcement of this sentence for DATE . The court further discontinued criminal proceedings concerning a charge of attempted misappropriation . Finally , the court imposed on the applicants an order prohibiting them from running , for DATE , the property protection business .","The court found that the applicants had first assisted the PERSON brothers in assigning to a certain GPE the ORG claim against ORG , which allegedly arose out of a civil law contract but CARDINAL which had not been certified by any judicial decision . Subsequently , they had obtained from ORG an authorisation to secure realisation of this claim against GPE On DATE they went to a warehouse located in S. , owned by ORG , and stated that they wished to purchase a substantial amount of merchandise . After they had chosen the merchandise , the seller asked them what form of payment they propose . When she was informed that they did not propose to pay because their intention was to set off the claim which ORG had acquired against GPE against the price due for the merchandise , the seller called the police . After the police arrived and told the applicants that they should have recourse to civil proceedings , they left the warehouse . They subsequently went to CARDINAL other shops owned by GPE , located in GPE , where they declared their intention to buy certain merchandise and , after it had been loaded on their van , they again refused to pay for it , stating that the payment due would be set off against the claim ORG had against GPE","The court noted that there had been no dispute as to the facts . The accused had not called in question the facts as established on the basis of testimony given by the witnesses , but they had disagreed with the legal assessment of the facts by the prosecuting authorities . They had stressed that their actions fell within the scope of a civil law contract of assignment of claims and the setting off of claims . The court considered that the accused had failed to take note of LAW which provided for a legal act to be null and void if effected in order to circumvent the law , or if it was contrary to the law , or contrary to good faith . The court considered that , although the applicants were conversant with civil law , their actions could not be construed as the mutual setting off of contractual claims . Their intention had been to conclude a contract of purchase and to refuse payment , invoking the assignment of claims to J.C .. The court considered that their acts amounted to an offence of misappropriation punishable under LAW .","The court further held that the applicants had abandoned , of their own will , their intention to proceed with the purchase of merchandise in LOC and thus considered that the part of the criminal proceeding relating to this incident should be discontinued .","The applicants appealed . They alleged that their defence rights had been breached in that the legal qualification of the charges against them had been changed after the court had closed the trial . They complained that after the trial had been closed , PERSON had not been given a possibility to address the court , that the court had made it impossible for them to lodge an appeal and that the proceedings had lasted too long . They also complained that GPE , the wife of GPE , had been questioned only on DATE of the trial and that the court had wrongly applied substantive law by considering that their acts could have amounted to offences punishable under criminal law , whereas they had only resorted to a well - established civil law contract of assignment of claims which could be effected regardless of the creditor \u2019s lack of knowledge and of his approval thereof .","The Prosecutor likewise lodged an appeal , claiming that ORG had wrongly applied substantive criminal law in that it had assessed the applicant \u2019s offence as misappropriation , whereas it should have been qualified as fraud . He further argued that the part of the proceedings relating to the ORG acts committed in LOC should not have been discontinued because , in fact , the applicants had not abandoned their intention of their own will , but only after the seller had called the police .","On DATE ORG quashed the judgment under appeal and ordered that the case be reconsidered by the lower court .","The court first examined the complaints submitted by the applicants to the effect that the procedural law had been breached in the proceedings . The court considered that the lower court had in fact informed the applicants about the possibility of reassessing the offences with which they had been charged before the trial had been closed . The court further found that after the trial had been closed , the accused , including ORG , had had an opportunity to address the court orally . The court considered the complaint about the impossibility of appeal to be incomprehensible because they had in fact lodged an appeal . The fact that ORG had been questioned on DATE of the trial did not amount to an irregularity , as the lower court had been under no obligation to question witnesses in any given order . As to the legal argument on mutual setting off allowed under civil law , the court noted that the only document purporting to be evidence of the existence of the claims of the PERSON brothers against GPE merely showed that the latter had had certain obligations towards the A. company , of which the brothers had been shareholders , whereas the assignment of claims had purportedly been concluded between the PERSON brothers and GPE The court concluded that there had been no credible evidence to prove the existence of ORG original contractual obligation towards the PERSON brothers .","The court observed that the applicants had requested ORG to allow their company to secure the payment of claims arising out of various contractual obligations for a commission of MONEY . Subsequently J.C. had signed a blank claim assignment form which was subsequently to be used by the applicants\u2019 company . The court considered that such an assignment , in the absence of any details establishing the claims on which the applicants could seek payment , could not be regarded as valid under the applicable provisions of civil law .","The court noted that the civil law allowing for the setting off of claims is only applicable when the persons concerned were mutual debtors and creditors in relation to each other .","The court considered that the legal assessment of the offences at issue by the first instance court had been wrong in that they had been qualified as misappropriation . However , this offence requires that the perpetrator had the objects concerned in his or her possession and then refused to return them to their rightful owner . As this had not been the case , the legal assessment of the offences had to be amended . Accordingly the court quashed the judgment of the lower court .","On DATE the ORG convicted the applicants of CARDINAL charges qualified as a continuous offence of fraud , sentenced them to CARDINAL months\u2019 imprisonment and a fine with imprisonment in default , and conditionally stayed enforcement of the sentence for DATE .","The court reiterated that , as the applicants had not called into question the facts of the case , the essence of the matter lay in the legal assessment of their acts . The court considered that during the material events the applicants had pretended that they wanted to purchase merchandise and that by doing so they had misled the sellers . However , their genuine intention was , first , to enter into possession of the merchandise and , after this had been attained , to refuse payment and to declare that they intended to set off the price due against the claims against ORG which had purportedly been assigned to ORG The court considered that in the light of the evidence given by the sellers , they would not have concluded such a contract with the applicants had they been informed of their real intentions . Thus the court considered that the setting off of the claims had been null and void and that the applicants\u2019 acts met the statutory requirements of the offence of fraud , as set out in LAW applicable at the material time .","The applicants lodged an appeal , complaining that the judgment was in breach of substantive law , in that the court had accepted that their acts amounted to a criminal offence punishable under LAW , whereas in fact they had acted in conformity with the law . The applicants did not reiterate the complaint they had raised in their appeal against the judgment of DATE that the legal qualification of the charges against them had been changed after the first - instance court had closed the trial .","On DATE ORG amended the first instance judgment of DATE , reducing the sentence to a fine of CARDINAL new ORG , with CARDINAL days\u2019 imprisonment in default , whilst upholding the remainder .","The court first noted that the applicants did not call into question the findings of fact made by the lower court . The court noted that ORG had never been asked by the A. company to pay his alleged debt . Thus , the claim could not be considered as due . The court considered that , for contractual claims to be validly set off against each other , the law required that the claims should not only be undisputed but also due , which conditions did not obtain in the present case . Moreover , the applicants , when purchasing merchandise owned by GPE , had acted with a fraudulent intent , because their real intention was to take possession of the merchandise and then to refuse payment . Thus , the ORG argument that they had validly concluded a purchase contract with ORG and subsequently set off ORG assigned claim could not be accepted . Given the invalid purchase contract , there were no legal grounds on which the claims could be lawfully set off against each other ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84768","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2008,"docname":"BALCI v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He had been granted legal aid and was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) did not designate an Agent for the LAW proceedings .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant bought a plot of arable land from a fellow villager . The seller had held the land in his possession for DATE without a title deed . The transaction took place unofficially and the parties did not execute a written sale agreement .","In DATE the authorities conducted regional cadastral works in the area . As a result , the plot in question was registered in the land register as CARDINAL separate parcels , numbered CARDINAL and CARDINAL . Parcel no . CARDINAL was registered in the name of the applicant as an arable field based on witness statements confirming that he had had taken it over from its previous possessor and had been exploiting it without interruption ever since . Parcel no . CARDINAL however was classified as part of an adjacent forest . As the legislation permitted no private ownership of forest land , this parcel was registered in the name of the ORG as a ORG property .","According to the applicant , he was uninformed about this registration and continued to cultivate not only parcel no . CARDINAL but no . CARDINAL . He only became aware of the situation in DATE , when the authorities discovered the cultivation and fined him for illegal utilisation of ORG property .","On DATE the applicant initiated civil proceedings before ORG , requesting parcel no . CARDINAL to be registered in his name . A court - appointed expert conducted an inspection and concluded that parcel no . CARDINAL could not be characterised as forest land .","Agreeing with the expert , ORG ruled in favour of the applicant on DATE . The court also established that the applicant had been holding the parcel in his uncontested and uninterrupted possession for long enough to entitle him to claim title under the applicable legislation . Accordingly , the court recognised him as the lawful owner of the parcel .","On DATE , however , ORG quashed this judgment . It established that older land inventories proved that the disputed parcel was on the outer limits of a neighbouring forest . The court reasoned that DATE of intensive cultivation must have removed the natural flora . Despite such a transformation , the court considered that the land should be considered as despoiled forest which had never belonged to the applicant . Accordingly , it directed the civil court to re - examine the facts of the case and pass judgment accordingly .","On DATE ORG adhered to this ruling . It held that the revision of the local plan served the general interest given that parcel no . CARDINAL was a forest area and that the applicant had illegally occupied it by expanding the boundaries of his lawfully possessed land , i.e. plot no . CARDINAL .","On DATE ORG dismissed the applicant \u2019s appeal .","On DATE the ORG sold the plot of land in question to a third party as an arable field .","Article CARDINAL of ORG provides that , persons who hold in their possession an unregistered immovable property without interruption or legal challenge for a minimum period of DATE , are entitled to request its registration in their names ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-24004","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2004,"docname":"CHERNYSHEVA v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The applicant is a journalist writing for the Citizen ( \u00ab \u0413\u0440\u0430\u0436\u0434\u0430\u043d\u0438\u043d DATE ) newspaper published by the GPE town administration . The applicant is represented before the Court by PERSON PERSON . PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr P. GPE , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant published an article under the headline \u201c ORG Tkach \u201d ( \u00ab \u041d\u0435\u0445\u043e\u0440\u043e\u0448\u0430\u044f \u043a\u0432\u0430\u0440\u0442\u0438\u0440\u0430 \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 \u0422\u043a\u0430\u0447\u0430 \u00bb ) in the Citizen . The article concerned a civil dispute between PERSON , the spouse of the prosecutor of the LOC district of FAC Tkach , and Mr and PERSON . , her neighbours who lived in the attic , right above PERSON flat . In DATE PERSON and Mr T. , another neighbour , had sued Mr and PERSON . for an injunction to stop unauthorised construction works in the attic . The first - instance court had dismissed the suit . However , the applicant continued , the appeal court quashed the judgment in the part concerning the claims of PERSON , but not the claims of Mr T. , notwithstanding the fact that their claims had been identical . The applicant alleged that this was only possible after Mr M. , a colleague of Mr Tkach and prosecutor of the LOC , intervened in the proceedings . In the article the applicant critically described the new hearing on PERSON claims on DATE and strongly disagreed with the court judgment made in favour of PERSON . The article implied that the parties to the dispute were not equal before the law precisely because the plaintiff \u2019s husband was a prosecutor .","On DATE the prosecutor PERSON filed an action against the applicant and the Citizen for the protection of his honour , dignity and professional reputation and compensation for non - pecuniary damage . The statement of claim was printed on the letterhead of the prosecutor \u2019s office of the LOC district of GPE and signed \u201c the prosecutor of the LOC district , senior justice advisor , FAC \u201d . It also bore the outgoing registration number of the prosecutor \u2019s office .","Mr PERSON argued as follows :","\u201c CARDINAL . The said article puts a special emphasis on my actions , allegedly unworthy of a prosecutor ; however , my professional activities and my position are in no way related to the essence of the judicial dispute in question : I was not a plaintiff in the dispute , [ neither ] as an individual nor as a prosecutor .","... No journalist should be allowed to make [ the living conditions ] of a prosecutor the subject of a public discussion . No one has the right to invade my private life , I did not break the law living in my flat DATE neither as a prosecutor nor as an individual . \u201d","Mr Tkach also submitted :","\u201c In accordance with LAW in the GPE verification of information on a violation allegedly committed by a prosecutor shall be the exclusive competence of ORG offices . This law applies to all citizens without exception , including journalists , who have no right to collect information on private lives of prosecutors and investigators and even more so to publish it in the media without consent of a prosecutor \u2019s hierarchical superior . \u201d","Mr PERSON explained that the action against the neighbours had been lodged by his wife who was also the owner of the flat . He denied that he or his wife had ever wanted to improve their living conditions at the expense of their neighbours . On this ground he requested the court to declare that the following extracts from the applicant \u2019s article had damaged his honour and his professional reputation of a prosecutor :","\u201c \u2018 Every prosecutor has an evil flat of his own\u2019 . These words are not mine . This is what people say . You can think anything you want . But in our case the issue is that PERSON and PERSON are dissatisfied with their housing conditions . They want an improvement . At the expense of their neighbours , Mr and PERSON . \u201d","\u201c Make way ! The ORG couple comes . \u201d","\u201c In order to satisfy [ the claim of ] Mr and PERSON and grant them [ the right to use a part of the attic ] ... the administration of the ORG district will apparently have to :","- build a new entrance into the flat of PERSON and PERSON . , which had already existed when they moved in ;","- brick in the CARDINAL doors leading into their rooms and cover the resulting wall with stucco and wallpaper ;","- convert CARDINAL separate rooms into CARDINAL with the CARDINAL entrance - exit through the kitchen . \u201d","\u201c P.S. The prosecutor PERSON has a wonderful CARDINAL - room flat , its total surface measures QUANTITY and the ceilings are QUANTITY high . \u201d","[ \u201c \u00ab \u0423 \u043a\u0430\u0436\u0434\u043e\u0433\u043e \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 \u0435\u0441\u0442\u044c \u0441\u0432\u043e\u044f \u043d\u0435\u0445\u043e\u0440\u043e\u0448\u0430\u044f \u043a\u0432\u0430\u0440\u0442\u0438\u0440\u0430 ORG . \u042d\u0442\u043e \u043d\u0435 \u043c\u043e\u0438 \u0441\u043b\u043e\u0432\u0430. \u042d\u0442\u043e \u2013 \u0443\u0436\u0435 FAC \u043c\u043e\u0436\u043d\u043e \u0434\u0443\u043c\u0430\u0442\u044c \u0432\u0441\u0451 , \u0447\u0442\u043e DATE \u041d\u043e \u0432 \u043d\u0430\u0448\u0435\u043c \u0441\u043b\u0443\u0447\u0430\u0435 \u0440\u0435\u0447\u044c \u0438\u0434\u0435\u0442 \u043e \u0442\u043e\u043c , \u0447\u0442\u043e PERSON \u043d\u0435\u0434\u043e\u0432\u043e\u043b\u044c\u043d\u044b \u0441\u0432\u043e\u0438\u043c\u0438 \u043a\u0432\u0430\u0440\u0442\u0438\u0440\u043d\u044b\u043c\u0438 ORG \u0445\u043e\u0442\u044f\u0442 \u0438\u0445 \u0443\u043b\u0443\u0447\u0448\u0438\u0442\u044c. \u0417\u0430 \u0441\u0447\u0435\u0442 \u0441\u043e\u0441\u0435\u0434\u0435\u0439 \u0428.","\u0414\u043e\u0440\u043e\u0433\u0443 ! PERSON \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u043e\u0432 \u0438\u0434\u0435\u0442 !","ORG \u0443\u0434\u043e\u0432\u043b\u0435\u0442\u0432\u043e\u0440\u0438\u0442\u044c PERSON , \u043e\u0442\u0434\u0430\u0432 \u0438\u043c \u043f\u0430\u0437\u0443\u0445\u0443 ... \u0430\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0446\u0438\u0438 GPE \u0440\u0430\u0439\u043e\u043d\u0430 , \u0432\u0438\u0434\u0438\u043c\u043e , \u043f\u0440\u0438\u0434\u0435\u0442\u0441\u044f :","- \u043f\u0435\u0440\u0435\u043f\u043b\u0430\u043d\u0438\u0440\u043e\u0432\u0430\u0442\u044c \u043d\u043e\u0432\u044b\u0439 \u0432\u0445\u043e\u0434 \u0432 \u043a\u0432\u0430\u0440\u0442\u0438\u0440\u0443 \u0428. , \u043a\u043e\u0442\u043e\u0440\u044b\u0439 \u0443\u0436\u0435 \u0431\u044b\u043b , \u043a\u043e\u0433\u0434\u0430 \u043e\u043d\u0438 \u0432\u0441\u0435\u043b\u044f\u043b\u0438\u0441\u044c ;","- \u0437\u0430\u043b\u043e\u0436\u0438\u0442\u044c \u043a\u0438\u0440\u043f\u0438\u0447\u0430\u043c\u0438 \u0434\u0432\u0435 \u0434\u0432\u0435\u0440\u0438 \u0432 \u0438\u0445 \u043a\u043e\u043c\u043d\u0430\u0442\u044b , \u043e\u0431\u0440\u0430\u0437\u043e\u0432\u0430\u0432\u0448\u0443\u044e\u0441\u044f \u0441\u0442\u0435\u043d\u0443 \u0437\u0430\u0448\u043f\u0430\u043a\u043b\u0435\u0432\u0430\u0442\u044c , \u043f\u043e\u043a\u043b\u0435\u0438\u0442\u044c \u043e\u0431\u043e\u0438 ;","- \u0434\u0432\u0435 \u0438\u0445 \u0440\u0430\u0437\u0434\u0435\u043b\u044c\u043d\u044b\u0435 \u043a\u043e\u043c\u043d\u0430\u0442\u044b \u043f\u0440\u0435\u0432\u0440\u0430\u0442\u0438\u0442\u044c \u0432 \u0441\u043c\u0435\u0436\u043d\u044b\u0435 , \u0441 \u0435\u0434\u0438\u043d\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u043c \u0432\u0445\u043e\u0434\u043e\u043c-\u0432\u044b\u0445\u043e\u0434\u043e\u043c \u2013 \u0432 \u043a\u0443\u0445\u043d\u044e.","ORG \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 \u0422\u043a\u0430\u0447\u0430 \u043f\u0440\u0435\u043a\u0440\u0430\u0441\u043d\u0430\u044f \u0442\u0440\u0435\u0445\u043a\u043e\u043c\u043d\u0430\u0442\u043d\u0430\u044f \u043a\u0432\u0430\u0440\u0442\u0438\u0440\u0430 , \u043e\u0431\u0449\u0435\u0439 \u043f\u043b\u043e\u0449\u0430\u0434\u044c\u044e \u043f\u043e\u0447\u0442\u0438 CARDINAL \u043a\u0432. \u043c , \u0441 \u0442\u0440\u0435\u0445\u043c\u0435\u0442\u0440\u043e\u0432\u044b\u043c\u0438 \u043f\u043e\u0442\u043e\u043b\u043a\u0430\u043c\u0438. \u201d ]","The court accepted the defamation action and ordered a linguistic expert examination of the article at issue .","On DATE the acting prosecutor of GPE ( \u0438.\u043e. \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u0438 ) issued to PERSON Tkach the following power of attorney printed on the prosecutor \u2019s office letterhead and sealed with the prosecutor \u2019s office stamp :","\u201c [ Hereby ] the prosecutor \u2019s office of LOC represented by the acting prosecutor [ Mr ] Vyacheslav Fedorovich GPE authorises the prosecutor of the LOC district , [ Mr ] PERSON < ... > to take part in civil proceedings before all judicial authorities , including [ the action ] for the protection of the honour and dignity of the prosecutor of the LOC district before ORG of FAC , having all rights granted by law to a plaintiff , defendant or third parties , [ including the right ] to withdraw the action in whole or in part , accept the claim , alter the subject of an action , conclude a friendly settlement , delegate the powers to an attorney ( substitution ) , appeal against a court decision , obtain writs of execution , recover the awarded property or moneys , and sign all necessary documents on my behalf . \u201d","On DATE Mr Tkach submitted a new version of his action . It was drafted on the letterhead of the prosecutor \u2019s office of the Moskovskiy district of GPE and the plaintiff was designated as \u201c the prosecutor of the LOC district , senior justice advisor , Mr FAC . The statement of claim bore an outgoing registration number of the prosecutor \u2019s office . In the new version of the statement Mr Tkach referred to the results of an internal inquiry carried out by the prosecutor \u2019s office of LOC on DATE in connection with the applicant \u2019s article . According to Mr Tkach , the inquiry did not establish any violations or unethical behaviour on the part of Mr Tkach and found that the facts described in the articles were untrue . Mr Tkach submitted that the applicant had failed in her professional duty to publish only accurate information and abused her rights as a journalist because she had allegedly defamed him exclusively on the ground of his occupation , place of residence and professional position . Mr Tkach asked for compensation for non - pecuniary damage to be transferred to the bank account of the prosecutor \u2019s office of LOC . As to the remainder , Mr Tkach repeated his initial claims , but he also added that the title of the article in question be declared untrue and damaging to his reputation .","On DATE the applicant published a new article under the title \u201c Prosecutor Tkach and freedom of expression DATE ( the story continues ) \u201d ( \u00ab \u041f\u0440\u043e\u043a\u0443\u0440\u043e\u0440 \u0422\u043a\u0430\u0447 \u0438 \u0441\u0432\u043e\u0431\u043e\u0434\u0430 \u0441\u043b\u043e\u0432\u0430 DATE ( \u044d\u043f\u043e\u043f\u0435\u044f \u043f\u0440\u043e\u0434\u043e\u043b\u0436\u0430\u0435\u0442\u0441\u044f ) ORG ) . The article related once again the story about the civil action brought by PERSON against her neighbours and alleged that only Mr PERSON \u2019s intervention in his professional capacity had secured an award in favour of his spouse . The article also criticised PERSON PERSON \u2019s decision to issue an official power of attorney to Mr Tkach for the protection of the latter \u2019s personal interests .","On DATE Mr Tkach filed a new action against the applicant and her newspaper . The statement of claim was drafted on plain paper and contained no reference to Mr PERSON \u2019s position or professional affiliation . Mr Tkach claimed that the following extracts in the article of DATE had damaged his honour and reputation :","\u201c ... the purpose of the claim [ was ] to prevent a reconstruction of the attic . Undertaken on legal grounds in accordance with a resolution of the head of the ORG district . The first attempt missed the target : the court did not grant the action . But when a subsequent action was filed and her husband DATE the prosecutor of LOC DATE began to show up at the hearings , the judgment was made in [ Mrs Tkach \u2019s ] favour ...","But here is the issue : had he been a pensioner , just like his neighbour , the action would have never been granted . \u201d","[ \u201c PERSON \u0437\u0430\u044f\u0432\u043b\u0435\u043d\u0438\u044f \u2013 \u0437\u0430\u043f\u0440\u0435\u0442\u0438\u0442\u044c \u0440\u0435\u043a\u043e\u043d\u0441\u0442\u0440\u0443\u043a\u0446\u0438\u044e \u0447\u0435\u0440\u0434\u0430\u043a\u0430. GPE \u043d\u0430\u0447\u0430\u0442\u0443\u044e \u0441\u043e\u0433\u043b\u0430\u0441\u043d\u043e \u043f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u044e \u0433\u043b\u0430\u0432\u044b NORP \u0440\u0430\u0439\u043e\u043d\u0430. \u0421 \u043f\u0435\u0440\u0432\u043e\u0439 \u043f\u043e\u043f\u044b\u0442\u043a\u0438 \u0446\u0435\u043b\u044c \u043d\u0435 \u0431\u044b\u043b\u0430 \u0434\u043e\u0441\u0442\u0438\u0433\u043d\u0443\u0442\u0430 DATE \u0441\u0443\u0434 \u043d\u0435 \u0443\u0434\u043e\u0432\u043b\u0435\u0442\u0432\u043e\u0440\u0438\u043b \u043f\u0440\u043e\u0441\u044c\u0431\u0443. \u041d\u043e \u043a\u043e\u0433\u0434\u0430 \u0431\u044b\u043b \u043f\u043e\u0434\u0430\u043d \u0441\u043b\u0435\u0434\u0443\u044e\u0449\u0438\u0439 \u0438\u0441\u043a \u0438 \u043d\u0430 \u0437\u0430\u0441\u0435\u0434\u0430\u043d\u0438\u044f\u0445 \u0441\u0442\u0430\u043b \u043f\u043e\u044f\u0432\u043b\u044f\u0442\u044c\u0441\u044f \u0435\u0435 \u043c\u0443\u0436 \u2013 \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440 GPE \u0440\u0430\u0439\u043e\u043d\u0430 \u0422\u043a\u0430\u0447 \u2013 \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u0432\u044b\u043d\u0435\u0441\u043b\u0438 \u0432 \u0435\u0435 \u043f\u043e\u043b\u044c\u0437\u0443 ...","\u041d\u043e \u0432\u0435\u0434\u044c \u0441\u0443\u0442\u044c \u0432 \u0447\u0435\u043c : \u0435\u0441\u043b\u0438 \u0431\u044b \u043e\u043d \u0431\u044b\u043b \u043f\u0435\u043d\u0441\u0438\u043e\u043d\u0435\u0440\u043e\u043c , \u043a\u0430\u043a \u0435\u0433\u043e \u0441\u043e\u0441\u0435\u0434 , \u0438\u0441\u043a \u043d\u0435 \u0431\u044b\u043b \u0431\u044b \u0432\u044b\u0438\u0433\u0440\u0430\u043d. \u201c ]","The applicant submits that DATE Mr Tkach lodged in total CARDINAL actions against her and the NORP , of which CARDINAL were lodged on behalf of the prosecutor \u2019s office and the remaining CARDINAL in Mr PERSON \u2019s own name .","On DATE the applicant lodged a counterclaim against Mr Tkach . The applicant submitted that Mr PERSON \u2019s statement \u201c No journalist should be allowed to make [ the living conditions ] of a prosecutor the subject of a public discussion \u201d had violated her right to freedom of expression and claimed compensation for non - pecuniary damage .","On DATE Mr Tkach asked the court to leave the statements of claim lodged on behalf of the prosecutor \u2019s office without examination because he had already brought identical claims on his own behalf .","On DATE ORG of FAC , by an interim decision ( \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 ) , granted Mr PERSON \u2019s request . According to TIME of the court hearing of DATE , the applicant and her representative did not object to continuation of the proceedings on the basis of Mr PERSON \u2019s statements of claim which he had lodged in his personal capacity .","On DATE ORG of FAC joined all actions and delivered a judgment .","The court found that the contested extracts concerned the quality of Mr Tkach \u2019s living conditions and his role in the civil proceedings . It scrutinised the judgments made in the civil action lodged by PERSON and the results of the inquiry of the prosecutor \u2019s office ( of DATE ) and came to the conclusion that the facts related in the article were untrue . The court found no evidence that Mr Tkach , in his professional capacity , had exercised any undue influence on the courts . The court held :","\u201c Therefore , having examined the evidence and assessed the contents of the article as a whole , including its title \u2018 Evil Flat of Prosecutor DATE , and having regard to the fact how a reasonable member of the society would perceive this message , the court comes to the conclusion that the author \u2019s account of the essence of the civil dispute and the author \u2019s expressed opinion do not reflect the actual situation .","The word sequences and semantic units in the text , designated by the plaintiff V.N.Tkach , fall within the ambit of the concept of \u2018 untrue information\u2019 . The substantial and semantic contents of the texts in question also infringe the legally protected rights and interests of the plaintiff , in particular , his professional reputation .","Under these circumstances the court considers that the claims lodged by Mr Tkach shall be granted . \u201d","The court pointed out that the principle of equality of arms would prevent a prosecutor from resorting in the civil proceedings to the special powers conferred on the prosecutor \u2019s office . For this reason the court approved PERSON PERSON \u2019s decision to withdraw the CARDINAL actions which he had lodged on behalf of the prosecutor \u2019s office .","The court also accepted the applicant \u2019s counterclaim and held that Mr Tkach \u2019s statement challenged by the applicant encroached on the applicant \u2019s protected journalistic rights .","The court did not award compensation for non - pecuniary damage to either party .","On DATE the applicant appealed against the judgment . On DATE the prosecutor of the Tsentralniy district , Mr S. Myashin , lodged a prosecutor \u2019s appeal ( \u043a\u0430\u0441\u0441\u0430\u0446\u0438\u043e\u043d\u043d\u044b\u0439 \u043f\u0440\u043e\u0442\u0435\u0441\u0442 ) in the interests of Mr Tkach .","On DATE the ORG quashed the judgment of DATE on procedural grounds and remitted the case for a new examination .","On DATE ORG of FAC delivered a new judgment in the matter . In substance , the court followed the reasoning of the judgment of DATE . The court noted that the judgment made by the district court on PERSON claim had been subsequently upheld by ORG on DATE and also scrutinised by the prosecutor in charge of supervision over the lawfulness of court decisions in civil cases who reported on DATE that no violation had taken place . The NORP Regional prosecutor \u2019s office and the Presidium of ORG refused to lodge applications for supervisory review as no breaches were found and a request for review was therefore unsubstantiated . The court observed that PERSON PERSON \u2019s official position was in no way related to the substance of the civil dispute in question ; he was not a plaintiff or a party to the dispute and there were no evidence that he had exercised pressure on the court . Moreover , the first deputy mayor of FAC and the head of the LOC administration confirmed that neither Mr Tkach nor his spouse had ever applied for permission to reconstruct their flat or otherwise improve their living conditions at the expense of neighbours PERSON . On the other hand , the court had regard to the overwhelming evidence showing that neighbours PERSON . maintained the attic in a dilapidated state , flooded PERSON flat and refused access to the attic to housing maintenance workers .","The court held that the information in the articles of DATE and CARDINAL DATE was untrue and damaging to the plaintiff \u2019s honour and professional reputation and caused him non - pecuniary damage . It awarded Mr FAC CARDINAL,CARDINAL ( ORG CARDINAL ) payable jointly by the applicant and her newspaper .","Having examined the applicant \u2019s counterclaim against Mr Tkach , the court found that the statement of claim of CARDINAL DATE had been indeed submitted on the prosecutor \u2019s office stationary , yet it did not specifically mention that the claim had been lodged in the ORG or public interests . The court held that the contested statement should be interpreted as a private person \u2019s position rather than as a prosecutor \u2019s injunction . An application to a court for the protection of one \u2019s rights containing arguments in support of the plaintiff \u2019s cause can not be held to infringe rights of others . Moreover , the court had regard to the decision of the district court of DATE whereby the contested statement of claim had been left without examination . The applicant \u2019s counterclaim was therefore dismissed .","The court noted in the judgment that the representatives of the applicant , PERSON and PERSON , did not attend after a break , on DATE of the hearing , despite having been duly informed of the time and place of the hearing agreed between the parties . The court observed that they failed to show any valid reasons for their absence , the documents on the file were sufficient for examination of the merits and that the other party did not object to continuing the examination in their absence .","On DATE the applicant appealed against the judgment . In her appeal the applicant submitted , in particular , that the judgment had been given without her or her representatives being present . She explained that the hearing had begun on DATE , DATE . At TIME the judge had announced a break . The applicant alleged that she had not been informed when the hearing would resume . On DATE , DATE , the applicant \u2019s representative arrived at the courtroom only to find that the judgment had been delivered on DATE . In her appeal the applicant also challenged the merits of the judgment .","On DATE ORG upheld in substance the judgment of DATE . However , the court reduced the amount of the award to ORG ( EUR CARDINAL ) for the applicant and to RUR CARDINAL ( EUR CARDINAL ) for the Citizen . The court reasoned its decision to reduce the award as follows :","\u201c ... the extent of the applicants\u2019 liability for dissemination of untrue information is insignificant because the judicial dispute with PERSON and PERSON . concerning the attic had indeed taken place , and the dissemination of damaging and inaccurate information is a result of incorrect , erroneous evaluation of the circumstances of that dispute . \u201d","The court also found that the applicant and her representative had been duly notified that the hearing would resume at TIME on DATE and their consent had been noted in the transcript of the hearing on DATE .","On DATE and DATE Mr Tkach sent a request to the Head of ORG ( \u043f\u0440\u0435\u0434\u0441\u0435\u0434\u0430\u0442\u0435\u043b\u044c \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u0421\u043e\u0432\u0435\u0442\u0430 \u0434\u0435\u043f\u0443\u0442\u0430\u0442\u043e\u0432 ) to impose a disciplinary sanction on the editor - in - chief of the ORG and the applicant herself with a view of their future dismissal . The sanction was to be imposed for dissemination of untrue information .","On DATE the first deputy prosecutor of LOC , PERSON ORG , sent a \u201c request to remedy the violation \u201d ( \u043f\u0440\u0435\u0434\u0441\u0442\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u043e\u0431 \u0443\u0441\u0442\u0440\u0430\u043d\u0435\u043d\u0438\u0438 \u043d\u0430\u0440\u0443\u0448\u0435\u043d\u0438\u044f ) to the editor - in - chief of the applicant \u2019s newspaper . The prosecutor requested , inter alia , a decision to apply disciplinary sanctions on the applicant in connection with her having disseminated the information damaging the reputation of the prosecutor of the Moskovskiy district , Mr Tkach .","On an unspecified date the applicant , her former representative PERSON PERSON and the editor - in - chief of the newspaper lodged a civil action against Mr Tkach for the protection of their honour , dignity and professional reputation and compensation for non - pecuniary damage . They submitted that at the oral hearing on DATE in ORG of FAC and in his written submissions to that court Mr Tkach referred to them as \u201c slanderers \u201d who \u201c badgered \u201d him by publishing \u201c ravings \u201d about a non - existent problem and wrote letters to the authorities insisting that the applicant and the editor be dismissed .","On DATE ORG of GPE granted the defamation action lodged by the applicant and her colleagues and ordered Mr Tkach to pay RUR CARDINAL ( EUR CARDINAL ) to each of the applicant and PERSON PERSON . On DATE ORG upheld , on Mr Tkach \u2019s appeal , the judgment of DATE . On DATE the Presidium of ORG refused the application for supervisory review lodged by the acting prosecutor of GPE against the judgment of DATE .","On DATE ORG of FAC granted yet another defamation action lodged by the applicant against Mr Tkach in connection with the letters which Mr Tkach had sent to the Mayor of GPE and to the Head of ORG . In these letters Mr PERSON requested that the municipal officials stop the publication of \u201c slanderous \u201d articles in the newspaper owned by the town administration . The court ordered PERSON Tkach to pay RUR CARDINAL to the applicant .","LAW guarantees freedom of ideas and expression , as well as freedom of mass media .","LAW of the Russian Federation provides that an individual may seize a court with a request for refutation of information ( \u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f ) damaging his or her honour , dignity or professional reputation unless the person who disseminated such information proves its accuracy . The individual may also claim compensation for losses and non - pecuniary damage sustained as a result of dissemination of such information .","The Code of Civil Procedure of the RSFSR ( in force at the material time ) provided as follows :","\u201c A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage , if it is required for the protection of ORG or public interests or rights and lawfully protected interests of citizens .","The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case has been recognised by the court .","The prosecutor who participates in the proceedings may study the case materials , bring challenges , produce evidence , take part in the examination of evidence , lodge motions , state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole , as well as perform other procedural actions provided for by law . The prosecutor \u2019s abandoning of a claim lodged for the protection of interests of another person does not impair that person \u2019s right to have his case examined on the merits . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91415","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2009,"docname":"CASE OF MARCHENKO v. UKRAINE","importance":2,"conclusion":"Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk","text":["The applicant was born in DATE and lives in LOC .","Since DATE the applicant has worked as a teacher in ORG no . CARDINAL for Children with Language Disorders ( \u201c the School \u201d ) . In DATE he was elected head of the school branch of the \u201c VOST \u201d - CARDINAL of the CARDINAL trade unions represented in the ORG .","On DATE the local ORG employed PERSON to serve as a director , notwithstanding opposition from some staff , in particular the VOST members .","In DATE PERSON dismissed an employee , who was a VOST member , without the consent of the VOST . Subsequently , in DATE , this employee was reinstated as a result of a court action brought on her behalf by the VOST .","On DATE PERSON refused to sign a collective agreement , signed by the VOST and the head of the second trade union present at the ORG .","On an unspecified date in DATE , a former School driver who had been dismissed by PERSON for incompetence submitted a written statement to the applicant , alleging that in DATE PERSON had ordered him to unload CARDINAL boxes of humanitarian aid intended for the School at her father \u2019s estate and that on many occasions she had used the school vehicle for personal purposes .","NORP In DATE the applicant in his capacity as a trade union leader made several applications to ORG ( \u041a\u043e\u043d\u0442\u0440\u043e\u043b\u044c\u043d\u043e-\u0440\u0435\u0432\u0456\u0437\u0456\u0439\u043d\u0435 \u0443\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f , a public audit service , scrutinising the use of funds by ORG - owned entities , \u201c the KRU \u201d ) , alleging that PERSON had abused her office and misused ORG and funds . In particular he stated that PERSON had appropriated CARDINAL boxes of humanitarian aid , ORG set , other video equipment and bricks from the school boundary wall which had been demolished . On several occasions the applicant also complained about the situation to ORG , the regional leader of the VOST .","NORP In response to these complaints in DATE the KRU held several inquiries into the use of the ORG funds .","In its report of DATE , the PERSON stated that there were no serious instances of mismanagement of the ORG \u2019s property .","The PERSON \u2019s report of DATE , however , revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid , charity and the bricks . However , no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by PERSON","NORP In DATE the applicant on behalf of the ORG branch of the VOST , PERSON U. on behalf of the Regional VOST , and PERSON N. on behalf of the local branch of ORG made a criminal complaint against PERSON to GPE ORG ( \u201c the ORG \u201d ) a criminal complaint against PERSON , referring largely to the same circumstances as in the ORG \u2019s complaints to the KRU . On DATE ORG dismissed this complaint for want of evidence of criminal conduct on PERSON part . On DATE a second criminal complaint was dismissed on the same ground . However , criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment .","On DATE several representatives of the Regional VOST picketed the NORP ORG protesting against the alleged abuses by PERSON The participants in the picket carried placards with various slogans criticising Mrs. PERSON and her deputy PERSON , as well as their supporters within the local administration . The slogans concerning PERSON read as follows : \u201c PERSON and PERSON return humanitarian aid and CARDINAL bricks from the school wall to the disabled children \u201d ; \u201c Boarding school no . CARDINAL director PERSON and her clique of ORG persecutors [ should be submitted ] to court \u201d ; and \u201c PERSON and PERSON , sticky hands off the disabled children of Boarding school no . CARDINAL \u201d .","In DATE PERSON brought a private prosecution against the applicant . She complained , in particular , that in his letters to the KRU and the Prosecutor \u2019s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of CARDINAL DATE , during which the demonstrators displayed offensive placards . PERSON further concluded that the applicant \u2019s actions fell within the ambit of LAW ( defamation in print ) and \u00a7 CARDINAL ( false accusation of serious crimes ) and LAW of DATE in force at the material time .","On DATE a judge of the NORP ORG found that the applicant \u2019s conduct vis - \u00e0 - vis Mrs P. fell within the ambit of LAW ( simple defamation ) and LAW , and initiated criminal proceedings against the applicant . The judge further ordered that the applicant be placed under an undertaking not to abscond .","In the course of the investigation , the charges against the applicant were re - qualified from LAW .","On DATE ORG notified the applicant of his indictment under LAW and LAW .","On DATE the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings .","On DATE the Lychakivsky ORG held the first hearing in the applicant \u2019s case .","In DATE the applicant \u2019s case was transferred to the Shevchenkivsky ORG ( \u201c the ORG \u201d ) .","On DATE ORG found the applicant guilty of an offence under LAW as charged and dropped charges under LAW as redundant . It sentenced him to DATE imprisonment suspended for DATE and to a fine of CARDINAL NORP hryvnas ( ORG ) . The court also allowed PERSON civil claim in part and ordered the applicant to pay her ORG CARDINAL,CARDINAL in non - pecuniary damages and UAH CARDINAL in legal fees .","In its judgment the court established that in numerous letters signed by the applicant , PERSON had been baselessly accused of misappropriation of public funds . The court also found that the applicant had initiated and participated in the picketing of CARDINAL DATE , referring to various pieces of evidence , including submissions by several ORG employees that they had seen him during the picket holding a slogan .","The applicant appealed against the judgment of DATE . He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods . Furthermore , no attention had been accorded to the fact that he had acted in his official capacity as a local NORP leader , empowered by the union members to inform the authorities about PERSON official misconduct and that according to the findings of the LAW and the law - enforcement authorities his accusations had not been entirely baseless . The applicant further denied any involvement in the picketing , referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor \u2019s certificate concerning his inpatient treatment until DATE . He also alleged that the case could not be considered under \u00a7 CARDINAL of Article CARDINAL of LAW , as pursuant to the decision of DATE criminal charges filed by PERSON under this provision had been re - qualified as charges under \u00a7 CARDINAL of Article CARDINAL .","On DATE ORG heard the case in the applicant \u2019s absence and upheld the judgment of DATE . It found , in particular , that the applicant \u2019s guilt , including in respect of participation in the picketing , had been proved by numerous sources of evidence . In particular , several ORG employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital LOC .","The applicant filed CARDINAL cassation appeals , which were dismissed due to his failure to follow formalities envisaged by law . On DATE a judge of ORG declared the applicant \u2019s twelfth appeal in cassation , in which he raised essentially the same arguments as in his appeal , admissible .","On DATE ORG upheld the previous judgments .","The text of LAW read as follows :","Defamation [ ORG ] , namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...","Defamation in print ... shall be punishable by ....","Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by PERCENT five years\u2019 imprisonment .","Article CARDINAL of the Code provided as follows :","\u201c Insult [ ORG ] , namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ... \u201d","Following a process of legislative reform , GPE of DATE no longer classifies defamation and insult as criminal offences .","The text of LAW ( governing the private prosecution proceedings , as in force before DATE ) may be found in the judgment of CARDINAL DATE in the case of GPE v. GPE ( no . CARDINAL , \u00a7 CARDINAL ) ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107727","languageisocode":"ENG","respondent":"RUS","branch":"COMMITTEE","date":2011,"docname":"CASE OF REDNIKOV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Anatoly Kovler;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant brought proceedings against a private company for breach of his patent rights .","By a judgment of DATE the ORG of GPE ( \u201c the ORG \u201d ) dismissed his claim .","On DATE ORG ( \u201c the appeal court \u201d ) upheld the above judgment on appeal .","On DATE the applicant instituted another set of proceedings against CARDINAL private companies for breach of his patent rights .","The first hearing was scheduled by ORG for DATE . However , the first hearing and the next QUANTITY hearings did not take place because the judge was involved in different proceedings or was on vacation , or due to the respondents\u2019 failure to appear . In the meantime the court sent inquiries to various ORG agencies for information about the respondents\u2019 place of registration .","At the hearing of DATE the applicant requested to change the names of the respondents , and the court repeatedly sent inquiries for information about their place of incorporation .","The next QUANTITY hearings were cancelled due to the respondent \u2019s default in appearance and because of the judge \u2019s involvement in different proceedings .","At the hearing of DATE , following lack of information about the respondents\u2019 exact whereabouts , the court suggested that the applicant notify them himself based on the information available to him .","At the hearing of CARDINAL DATE the applicant relinquished his claims against CARDINAL of the respondents and asked the court to invite a third party to join the proceedings .","On DATE the applicant motioned to replace the initial respondents with a new set of CARDINAL companies and specified his claims . On DATE he relinquished his claims against CARDINAL of the respondents .","The next QUANTITY hearings were cancelled as the judge was involved in different proceedings .","The hearing of DATE was postponed to allow a respondent to study the case .","The hearing of DATE did not take place as the court did not have information about due notification of the respondents .","The next CARDINAL hearings took place as scheduled .","On DATE the court accepted the applicant \u2019s relinquishment of his claim against CARDINAL respondents and severed his claims against CARDINAL other respondents into a separate case to avoid delay in the proceedings . By a judgment of DATE ORG dismissed his claims against the remaining respondent .","On DATE the applicant filed preliminary grounds of appeal and specified that he would submit reasoned grounds of appeal upon receipt of the reasoned judgment . On DATE ORG left the appeal without consideration for failure to substantiate it and suggested that the applicant remedy this defect until DATE .","NORP The applicant submitted copies of his complaints concerning failure of ORG to produce the final text of the judgment of DATE to the LOC prosecutor \u2019s office of DATE , to the appeal court of DATE and DATE and to the Judicial Qualifications Board of DATE . According to the applicant , in DATE and DATE he came to see the judge in his case , inquiring about the date of filing of the final text of the judgment at the registry .","The applicant submitted a copy of the cover of the case file with a handwritten note by a member of the court \u2019s registry according to which he had received a copy of the judgment on DATE .","On DATE the applicant submitted reasoned grounds of appeal of the judgment of DATE . The heading of the document includes a mention that the final text of the judgment had been obtained by the claimant on DATE .","On DATE ORG returned the applicant \u2019s appeal as submitted outside the procedural time - limit . This decision was set aside by the appeal court on DATE . The court did not give any reasons for its decision .","On DATE ORG upheld the judgment of DATE on appeal .","Article CARDINAL of the Code of Civil Procedure of GPE ( in force since DATE ) provides that drafting of the final reasoned text of the judgment may be postponed for no longer than DATE after termination of the proceedings in the case ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105622","languageisocode":"ENG","respondent":"TUR","branch":"COMMITTEE","date":2011,"docname":"CASE OF KORKMAZ v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giorgio Malinverni;Guido Raimondi","text":["NORP The applicant was born in DATE and lives in GPE .","On an unspecified date in DATE ORG and LANGUAGE ( PERSON ) ( \u201c the General Directorate \u201d ) decided to partially expropriate the applicant \u2019s land located in the PERSON district of GPE . The applicant only found out about this expropriation in DATE .","On DATE the applicant brought a civil action before ORG for additional expropriation compensation .","On DATE the title to the property was transferred to ORG .","On DATE ORG awarded the applicant MONEY ( TRL ) as additional compensation , plus interest at the statutory rate .","On DATE ORG upheld the first - instance court \u2019s judgment .","The applicant subsequently initiated execution proceedings before ORG to obtain her additional compensation .","On DATE the applicant received a partial payment of CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP liras ( TRY ) .","On DATE the applicant brought a case before ORG in respect of ORG outstanding debt and the interest rate that should be applied to that amount .","On DATE ORG held that ORG had an outstanding debt of TRY CARDINAL,CARDINAL.CARDINAL , payable with an interest rate of PERCENT running from DATE .","On DATE ORG appealed the judgment of ORG . On DATE ORG upheld that judgment .","On DATE ORG paid the applicant TRY ORG to discharge its outstanding debt , together with interest .","The relevant domestic law and practice are set out in the cases of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) ; Aka v. GPE ( judgment of DATE , Reports CARDINAL-VI ) ; GPE and Others v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ; GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ; ORG and GPE v. GPE , no . CARDINAL , \u00a7 CARDINAL , ECHR DATE ..."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83520","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2007,"docname":"BRZANK v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","The applicant is a practising lawyer who specialises , inter alia , in sports law . She distributed a leaflet containing her curriculum vitae , which mentioned her career as an athlete in the national team of GPE and that she had won several international tournaments . Also , the applicant listed in the leaflet her fees for a first legal consultation , depending on the value in dispute , in matters concerning private litigation and , depending on the duration of the consultation , in matters concerning family law , labour law and criminal law . Her highest fee was MONEY ( ORG ) . At the bottom of the list , she put an asterisked footnote that the highest fee for a first consultation permitted under the applicable law , then ORG ) , was DEM CARDINAL . The latter fee was therefore higher than any of the fees the applicant had listed .","Another lawyer who practised in the same town as the applicant lodged an application for interim measures , and as a result ORG provisionally ordered , in a judgment of DATE , the applicant to refrain from referring to her former sports career in her advertising and from listing her fees for first legal consultations on matters of family and labour law with the above - mentioned footnote . An appeal by the applicant was dismissed by ORG on DATE .","In the main proceedings , by judgment of DATE , ORG repeated the above order and included an order to refrain from listing in the footnote to the leaflet the fees for all first legal consultations , subject to a fine of MONEY ( ORG ) for non - observance of the order . It based the claimant \u2019s request for an injunction ( Unterlassungsanspruch ) on DATE LAW in conjunction with section DATE of LAW ( see relevant domestic law section ) . ORG reasoned that lawyers were only allowed to use factual information whose form and content was connected with the profession in their advertising . It reasoned that the reference to her former sports career lacked any such connection with her profession as a lawyer .","As to the list of her legal fees containing the asterisked footnote , it noted that the applicant had made a comparison between her fees for a first legal consultation and the fees permitted under the applicable law . Ordinary citizens however would not be aware that the applicable law gave lawyers the discretion to charge a fee for a first consultation ranging CARDINAL of that fee and the full amount , and that the fees varied according to the value in dispute . After comparing the applicant \u2019s fees with the amount mentioned in the footnote , an ordinary citizen would assume that any other lawyer might charge LAW for a first legal consultation , whereas the maximum fee the applicant charged was DEM CARDINAL . Therefore , the leaflet might give the impression that the applicant \u2019s fees were normally lower than the fees of those lawyers who used the full discretion permitted under the applicable law . ORG noted however that this was not the case , pointing out that some of the applicant \u2019s fees for lower values in dispute were considerably higher than the fees permitted under the applicable law . It also pointed out that the footnote referred to a fee of DEM CARDINAL without mentioning that this was the full fee for consultations only for disputes with a value above DEM CARDINAL,CARDINAL . Therefore , ordinary clients could be misled into assuming that the fee of ORG CARDINAL applied to all values in dispute and that the applicant \u2019s fees were normally lower than the fees permitted under the applicable law . Therefore , the list with the footnote had to be considered \u201c misleading advertising \u201d within the meaning of CARDINAL of LAW .","On DATE , ORG dismissed an appeal lodged by the applicant . It reasoned that , contrary to the applicant \u2019s submission , she had not generally been prohibited from mentioning her fees in her advertising . It was the specific form of the advertisement in conjunction with the footnote that had been regarded as misleading by ORG .","On DATE ORG partly quashed the judgments of ORG of DATE and of ORG of DATE in so far as they concerned the prohibition on referring to the applicant \u2019s sports career in the leaflet . It took the view that , because the applicant partly specialised in legal disputes concerning sports , the reference did have a direct connection to her profession . Therefore , the prohibition violated the applicant \u2019s freedom to choose a profession under LAW . With regard to the prohibition on listing her fees in the asterisked footnote , ORG refused to admit the constitutional complaint for adjudication . It found that LAW included advertising for professional services , and that the professions were allowed to advertise as long as they provided factual information which was not misleading . It was not objectionable from a constitutional point of view that the domestic courts had regarded the list with the asterisked footnote as misleading and that they had interpreted that list in context and from the perspective of an ordinary citizen . By using the footnote , the applicant had made a comparison between her \u201c prices \u201d and the highest fees permitted under the applicable law . It could not be regarded as erroneous that the domestic courts had found that an ordinary citizen ( who would not make complicated calculations ) would assume by mistake that the applicant was normally less expensive . LAW protected not only other competitors , but also the general public , from unfair competition . It was not decisive that there had not been malpractice on the part of the applicant .","The applicant received the decision of ORG on DATE .","Relevant provisions of LAW ( PERSON gegen den unlauteren PERSON ) :","\u201c Any person who , in the course of business activity and for purposes of competition , commits acts contrary to honest practices may be enjoined from performing these acts and held liable for damages . \u201d","\u201c Any person who , in the course of business activity and for purposes of competition , makes misleading statements concerning business matters , in particular concerning the nature , the origin , or the manner of manufacture , or the pricing of individual goods or commercial services or of the offer as a whole , concerning price lists , the manner or the source of acquisition of goods , concerning the possession of awards , concerning the occasion or purpose of sale , or concerning the size of the available stock , may be enjoined from making such statements . \u201d","Relevant provision of LAW ( Bundesrechtsanwalts - ordnung ) :","\u201c A lawyer is only permitted to advertise his \/ her services in as far as the advertising in question provides factual information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81608","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2007,"docname":"CASE OF JORGIC v. GERMANY","importance":1,"conclusion":"Remainder inadmissible;No violation of Art. 6-1 or 5-1;No violation of Art. 7","judges":"Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant was born in DATE . When he lodged his application , he was detained in GPE , GPE .","In DATE the applicant , a national of GPE of NORP origin , entered GPE , where he legally resided until DATE . He then returned to GPE , which forms part of the city of PERSON in GPE , where he was born .","On DATE the applicant was arrested when entering GPE and placed in pre - trial detention on the ground that he was strongly suspected of having committed acts of genocide .","On DATE the applicant \u2019s trial , on the charge of having committed genocide in the PERSON region DATE , started before ORG ( Oberlandesgericht ) acting as a court of first instance .","In the course of the proceedings ORG heard evidence from CARDINAL witnesses called by the prosecution , who had to be summoned abroad .","On DATE the applicant requested ORG to call and hear evidence from CARDINAL witnesses from GPE for the purpose of proving the fact that he had been placed in pre - trial detention in PERSON DATE and DATE and could not therefore have committed the crimes he was accused of . On DATE the applicant sought leave to summon another CARDINAL witnesses from PERSON to prove his allegation .","On DATE ORG dismissed the applicant \u2019s requests to summon these witnesses . Relying on LAW , second sentence , of LAW ( see paragraph CARDINAL below ) , it considered the testimony of these witnesses to be of little evidential value . CARDINAL of these witnesses had made written statements which had already been read out in court . CARDINAL of them had actually claimed to have visited the applicant in prison . Having regard to the evidence already taken , the court could exclude the possibility that the testimony of the witnesses named by the applicant , if heard in person , might influence the court \u2019s assessment of the evidence . It pointed out that CARDINAL witnesses who had already been heard in court , including CARDINAL journalists who had not been victims of the crimes the applicant was accused of , had seen the applicant in different places outside prison during the time he claimed to have been detained . The documents submitted by the applicant in relation to the beginning and end of his detention in PERSON did not warrant a different conclusion , as they had obviously been signed by a person whom the applicant knew well .","On DATE the applicant requested the court to call CARDINAL witnesses from PERSON in order to prove that he had been detained between CARDINAL May and CARDINAL DATE . He also requested an inspection of the scene of the crime ( PERSON ) in PERSON or , alternatively , that a topographical map be drawn up in order to prove that the ORG statements concerning his purported acts in PERSON were untrustworthy .","On DATE ORG rejected the applicant \u2019s requests . As regards the refusal to summon the CARDINAL witnesses named , the court , again relying on LAW , found that the testimony of these witnesses would be of little evidential value . Having heard the evidence given by other witnesses , it was satisfied that the applicant had not been detained at the material time . It further considered an inspection of the scene of the crime or the drawing - up of a topographical map thereof to be unobtainable evidence ( unerreichbare ORG ) within the meaning of LAW of LAW ( see paragraph CARDINAL below ) , which it therefore did not have to accept .","In its judgment of DATE , ORG convicted the applicant on CARDINAL counts of genocide ( Article CARDINALa nos . CARDINAL and CARDINAL of LAW see paragraph DATE below ) and for the murder of CARDINAL people in CARDINAL case , CARDINAL people in another case , and CARDINAL person in a third case . In the remaining cases , he was convicted on several counts of dangerous assault and deprivation of liberty . It sentenced the applicant to life imprisonment and stated that his guilt was of a particular gravity ( see paragraph CARDINAL below ) .","The court found that the applicant had set up a paramilitary group , with whom he had participated in the ethnic cleansing ordered by the NORP political leaders and the NORP military in the PERSON region . He had in particular participated in the arrest , detention , assault and ill - treatment of male NORP of CARDINAL villages in GPE at DATE and DATE . He had killed several inhabitants of these villages . He had in particular shot DATE inhabitants of the village of PERSON \u2013 women and disabled and elderly people \u2013 in DATE . Subsequently , the applicant , together with the paramilitary group he had led , had chased CARDINAL men from their home village and had ordered them to be ill - treated and CARDINAL of them to be shot . A seventh injured person had died from being burnt with the corpses of the CARDINAL people shot . In DATE the applicant had killed a prisoner , who was being ill - treated by soldiers in the PERSON prison , with a wooden truncheon in order to demonstrate a new method of ill - treatment and killing .","The court stated that it had jurisdiction over the case pursuant to LAW CARDINAL of LAW ( see paragraph DATE below ) . There was a legitimate link for criminal prosecution in GPE , as this was in accordance with GPE \u2019s military and humanitarian missions in GPE and the applicant had resided in GPE for DATE and had been arrested there . Furthermore , agreeing with the findings of an expert in public international law , the court found that the NORP courts were not debarred under public international law from trying the case . In particular , neither LAW ) , nor LAW for the former GPE ( ICTY Statute ) ( see paragraphs DATE below ) excluded the jurisdiction of NORP courts over acts of genocide committed outside GPE by a foreigner against foreigners . The court considered that this view was confirmed by the fact that ORG for the former GPE ( ORG ) had stated that it was not willing to take over the applicant \u2019s prosecution .","Furthermore , the court found that the applicant had acted with intent to commit genocide within the meaning of Article PERSON of LAW . Referring to the views expressed by several legal writers , it stated that the \u201c destruction of a group \u201d within the meaning of Article PERSON of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together ( \u201c ORG sozialer PERSON in ihrer GPE und Eigenart und ihrem GPE \u201d ) ; a biological - physical destruction was not necessary . It concluded that the applicant had therefore acted with intent to destroy the group of NORP in the north of GPE , or at least in the PERSON region .","On DATE ORG , following an appeal by the applicant on points of law and after a hearing , convicted the applicant on CARDINAL count of genocide and CARDINAL counts of murder . It sentenced him to life imprisonment and stated that his guilt was of a particular gravity .","Endorsing the reasons given by ORG , it found that NORP criminal law was applicable to the case and that the NORP courts consequently had jurisdiction over it by virtue of Article CARDINAL no . CARDINAL of LAW . It found , in particular , that no rule of public international law prohibited the applicant \u2019s conviction by the NORP criminal courts in accordance with the principle of universal jurisdiction ( ORG \/ PERSON ) enshrined in that Article . It conceded that the said principle had not been expressly laid down in LAW , despite earlier drafts of LAW in which it had been proposed to do so . However , the said Article did not prohibit persons charged with genocide from being tried by national courts other than the tribunals of the ORG in the territory of which the act was committed . Any other interpretation would not be reconcilable with the erga omnes obligation undertaken by ORG in LAW to prevent and punish genocide ( see paragraph CARDINAL below ) . The aforesaid interpretation of LAW was also confirmed by LAW , which provided for concurrent jurisdiction of the ORG and all other national courts .","NORP Moreover , ORG found that the NORP courts also had jurisdiction pursuant to LAW no . CARDINAL of LAW ( see paragraph DATE below ) .","ORG did not expressly deal with the applicant \u2019s complaint that ORG , in its decision of DATE , had refused to summon abroad any of the defence witnesses he had named on the basis of LAW . However , it referred in general to the submissions of ORG ( ORG ) , who had argued that the applicant \u2019s appeal was inadmissible in this respect , as he had failed to set out the relevant facts in sufficient detail . As regards the applicant \u2019s complaint that ORG , in its decision of DATE , had refused to summon CARDINAL further defence witnesses abroad , ORG considered his complaint to be inadmissible , as he had not sufficiently set out the relevant facts and had not provided sufficient reasons in his appeal . The court further referred to ORG submissions regarding the applicant \u2019s complaint that ORG had refused to have a topographical map drawn up . According to ORG , the applicant \u2019s complaint was ill - founded in this respect , especially as ORG already had a video of the relevant locality .","ORG upheld ORG finding that the applicant had intended to commit genocide within the meaning of Article PERSON of LAW , but found that his actions as a whole had to be considered as only CARDINAL count of genocide . It referred to the wording of Article CARDINAL \u00a7 CARDINAL no . CARDINAL ( imposition of measures which are intended to prevent births within the group ) and no . CARDINAL ( forcible transfer of children of the group into another group ) in support of its view that genocide did not necessitate an intent to destroy a group physically , but that it was sufficient to intend its destruction as a social unit .","On DATE ORG declined to consider the applicant \u2019s constitutional complaint .","According to ORG , the criminal courts had not violated any provision of LAW by establishing their jurisdiction pursuant to LAW CARDINAL of the Criminal Code taken in conjunction with LAW . The principle of universal jurisdiction afforded a reasonable link to deal with subject matter arising outside the territory of GPE , while observing the duty of non - intervention ( ORG ) under public international law . The competent ORG reasoning , namely , that LAW CARDINAL of the Criminal Code taken in conjunction with LAW entitled them to examine the applicant \u2019s case , was not arbitrary . It could properly be reasoned that LAW , while not expressly regulating the principle of universal jurisdiction , provided that the Contracting Parties were not obliged to prosecute perpetrators of genocide , but had jurisdiction to do so . In fact , genocide was the classic subject matter to which the principle of universal jurisdiction applied . The criminal courts\u2019 reasoning did not interfere with GPE and GPE \u2019s personal or territorial sovereignty , as that ORG had expressly refrained from requesting the applicant \u2019s extradition .","Pointing out that in the case of an admissible constitutional complaint it was entitled to examine the act complained of under all constitutional angles , ORG further found that the applicant \u2019s right to a fair trial as guaranteed by LAW had not been violated . There was no doubt that LAW and CARDINAL of LAW were constitutional . The legislature was not obliged to set up specific rules of procedure for certain criminal offences . The right to a fair trial did not grant the applicant a right to have certain evidence taken , such as calling witnesses who had to be summoned abroad .","In respect of the interpretation of Article PERSON of LAW , ORG found that there had been no violation of the principle that criminal law was not to be applied retroactively as guaranteed by LAW . It stated that the way in which ORG and ORG had construed the notion of \u201c intent to destroy \u201d in the said LAW was foreseeable . Moreover , the interpretation conformed to that of the prohibition of genocide in public international law \u2013 in the light of which Article PERSON of LAW had to be construed \u2013 by the competent tribunals , several scholars and as reflected in the practice of ORG , as expressed , inter alia , in LAW of ORG ( see paragraph CARDINAL below ) .","On DATE the ORG declared inadmissible a request by the applicant to reopen the proceedings . The fact that one of the witnesses who had been examined by ORG , and who was the only person claiming to have been an eyewitness to the applicant murdering CARDINAL people in PERSON , was suspected of perjury did not warrant a reopening . Even assuming that the said witness had invented the allegations against the applicant , the latter would still have to be sentenced to life imprisonment for genocide and on CARDINAL counts of murder .","On DATE ( decision served on DATE ) ORG decided that the applicant \u2019s request to reopen the proceedings was admissible in so far as it concerned the murder of CARDINAL people in PERSON . It pointed out , however , that , even assuming that the applicant \u2019s conviction on CARDINAL counts of murder was not upheld , his conviction for genocide and on CARDINAL counts of murder , and therefore his life sentence , including the finding that his guilt was of a particular gravity , would prevail .","In a constitutional complaint of CARDINAL DATE , the applicant claimed that the decisions of ORG and ORG concerning the reopening of the proceedings violated his right to liberty as guaranteed by LAW . He argued that they had erred in their finding that , in the proceedings to have the case reopened , the question whether the applicant \u2019s guilt was of a particular gravity did not have to be assessed anew .","On DATE ORG refused to admit the applicant \u2019s constitutional complaint .","On DATE the ORG decided to reopen the proceedings in respect of the applicant \u2019s conviction for shooting CARDINAL people in PERSON . It found that the only person claiming to have been an eyewitness to these murders was guilty of perjury at least in respect of some other statements . Therefore , it could not rule out the possibility that the judges then adjudicating the case would have acquitted the applicant on that charge if they had known that some statements by this witness had been false .","In so far as the applicant \u2019s request to reopen the proceedings was granted , ORG discontinued the proceedings . It argued that the sentence to be expected by the applicant , if he was again found guilty of having murdered CARDINAL people in PERSON , was not significantly greater than the sentence which had already been imposed upon him with binding effect for genocide . Consequently , the judgment of ORG of DATE remained final regarding the applicant \u2019s conviction for genocide and on CARDINAL counts of murder , including the court \u2019s finding that his guilt was of a particular gravity .","The relevant provisions of LAW , in their versions in force at the material time , on the jurisdiction of NORP courts , the crime of genocide and the gravity of a defendant \u2019s guilt provided as follows :","\u201c NORP criminal law shall further apply , regardless of the law applicable at the place of their commission , to the following acts committed abroad :","NORP genocide ( Article PERSON ) ;","... \u201d","\u201c CARDINAL . ...","NORP criminal law shall apply to other offences committed abroad if the act is punishable at the place of its commission or if the place of its commission is not subject to enforcement of criminal law and if the perpetrator","...","( CARDINAL ) was a foreigner at the time of the act , was found to be in GPE and , although the law on extradition would permit extradition for such an act , is not extradited because a request for extradition is not made , is rejected or the extradition is not enforceable . \u201d","\u201c CARDINAL . Whoever , acting with the intent to destroy , in whole or in part , a national , racial , religious or ethnical group as such ,","( CARDINAL ) NORP kills members of the group ,","( CARDINAL ) causes serious bodily or mental harm ... to members of the group ,","( CARDINAL ) NORP places the group in living conditions capable of bringing about their physical destruction in whole or in part ,","( CARDINAL ) imposes measures which are intended to prevent births within the group ,","( CARDINAL ) NORP forcibly transfers children of the group into another group ,","shall be punished with life imprisonment .","... \u201d","Article PERSON of LAW was inserted into LAW by LAW DATE on GPE \u2019s accession to LAW and came into force in DATE . Article CARDINAL no . CARDINAL and Article CARDINAL of the Criminal Code ceased to be effective on DATE when the Code on ORG against International Law ( V\u00f6lkerstrafgesetzbuch ) came into force . Pursuant to LAW , it applies to criminal offences against international law such as genocide ( see LAW ) even when the offence was committed abroad and bears no relation to GPE .","The applicant is the first person to be convicted of genocide by NORP courts under Article PERSON since the incorporation of that LAW into LAW . At the time the applicant committed his acts in DATE , a majority of scholars took the view that genocidal \u201c intent to destroy a group \u201d under Article PERSON of LAW had to be aimed at the physical - biological destruction of the protected group ( see , for example , PERSON in ORG GPE , CARDINALth edition , GPE DATE , Article CARDINAL , \u00a7 \u00a7 CARDINAL with further references ) . However , a considerable number of scholars were of the opinion that the notion of destruction of a group as such , in its literal meaning , was wider than a physical - biological extermination and also encompassed the destruction of a group as a social unit ( see , in particular , PERSON , PERSON GPE DATE . DATE und die PERSON , DATE ) , p. CARDINAL , and PERSON in ORG , CARDINALth edition , GPE , GPE DATE , LAW , \u00a7 \u00a7 DATE , CARDINAL and DATE ) .","Under Article CARDINALa \u00a7 CARDINAL of LAW , a sentence to life imprisonment may only be suspended on probation if , in particular , DATE of the sentence have been served and the particular gravity of the defendant \u2019s guilt ( besondere PERSON der PERSON ) does not warrant the continued execution of the sentence .","Pursuant to LAW , an application to adduce evidence may be rejected only under the conditions set out in that Article . It may be dismissed , inter alia , if the evidence is unobtainable ( unerreichbar ) .","Article CARDINAL \u00a7 CARDINAL , second sentence , of LAW lays down special conditions for rejecting an application to examine a witness who would have to be summoned abroad . These conditions are less strict than those for rejecting an application to hear evidence from a witness who can be summoned in GPE . It is sufficient that the court , in the proper exercise of its discretion , deems the examination of the witness not to be necessary for establishing the truth .","NORP The relevant provision of LAW , which came into force for GPE on CARDINAL DATE , provides :","\u201c In the present Convention , genocide means any of the following acts committed with intent to destroy , in whole or in part , a national , ethnical , racial or religious group , as such :","( a ) Killing members of the group ;","( b ) Causing serious bodily or mental harm to members of the group ;","( c ) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part ;","( d ) Imposing measures intended to prevent births within the group ;","( e ) Forcibly transferring children of the group to another group . \u201d","In its ORG CARDINAL\/CARDINAL ( no . A \/ RES\/CARDINAL\/CARDINAL ) of DATE concerning the situation in GPE in DATE , ORG stated :","\u201c Gravely concerned about the deterioration of the situation in GPE owing to intensified aggressive acts by the NORP and LOC forces to acquire more territories by force , characterized by a consistent pattern of gross and systematic violations of human rights , a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in NORP and LOC controlled areas of concentration camps and detention centres , in pursuit of the abhorrent policy of \u201c ethnic cleansing \u201d , which is a form of genocide , ... \u201d","In the case of Prosecutor v. ORG , IT-CARDINAL - CARDINAL-T , judgment of CARDINAL DATE , \u00a7 \u00a7 DATE , ORG of ORG for the former GPE ( ORG ) , expressly diverging from the wider interpretation of the notion of \u201c intent to destroy \u201d by ORG and ORG in its judgment of DATE in the present case , found as follows with regard to LAW :","\u201c CARDINAL . Several recent declarations and decisions , however , have interpreted the intent to destroy ... so as to encompass evidence relating to acts that involved cultural and other non - physical forms of group destruction .","NORP In DATE , ORG labelled ethnic cleansing as a form of genocide . ...","ORG of Germany said in DATE that","the statutory definition of genocide defends a supra - individual object of legal protection , i.e. the social existence of the group ... the intent to destroy the group ... extends beyond physical and biological extermination ... The text of the law does not therefore compel the interpretation that the culprit \u2019s intent must be to exterminate physically at least a substantial number of the members of the group . ...","ORG is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege . It therefore recognises that , despite recent developments , customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group . Hence , an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide . ORG however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well , attacks which may legitimately be considered as evidence of an intent to physically destroy the group . \u201d","The Trial Chamber \u2019s judgment was upheld in this respect by the judgment of DATE rendered by ORG of the ORG , IT-CARDINAL - CARDINAL-A , which found :","\u201c CARDINAL . LAW , and customary international law in general , prohibit only the physical or biological destruction of a human group . ... ORG expressly acknowledged this limitation , and eschewed any broader definition . ... \u201d","... The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a ORG from relying on it as evidence of the intentions of members of ORG . The genocidal intent may be inferred , among other facts , from evidence of \u2018 other culpable acts systematically directed against the same group\u2019 . \u201d","Similarly , in the case of Prosecutor v. PERSON and Others ( ITCARDINAL-T , judgment of DATE , \u00a7 CARDINAL ) , which concerned the killing of CARDINAL NORP in order to expel the NORP population from a village , the ORG found :","\u201c Persecution is CARDINAL step away from genocide \u2013 the most abhorrent crime against humanity DATE for in genocide , the persecutory intent is pushed to its utmost limits through the pursuit of the physical annihilation of the group or of members of the group . In the crime of genocide the criminal intent is to destroy the group or its members ; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereof by grossly and systematically violating their fundamental human rights . In the present case , according to the Prosecution \u2013 and this is a point on which ORG agrees DATE the killing of NORP civilians was primarily aimed at expelling the group from the village , not at destroying the NORP group as such . This is therefore a case of persecution , not of genocide . \u201d","In its judgment of CARDINAL DATE in the case of GPE and GPE ( \u201c Case concerning application of FAC \u201d ) , ORG ( ICJ ) found under the heading of \u201c intent and \u2018 ethnic cleansing\u2019 \u201d ( at \u00a7 CARDINAL ) :","\u201c The term \u2018 ethnic PERSON has frequently been employed to refer to the events in GPE and GPE which are the subject of this case ... ORG resolution CARDINAL\/CARDINAL referred in its Preamble to \u2018 the abhorrent policy of \u201c ethnic cleansing \u201d , which is a form of ORG , as being carried on in GPE . ... It [ i.e. , ethnic cleansing ] can only be a form of genocide within the meaning of the LAW , if it corresponds to or falls within CARDINAL of the categories of acts prohibited by LAW . Neither the intent , as a matter of policy , to render an area \u2018 ethnically homogeneous\u2019 , nor the operations that may be carried out to implement such policy , can as such be designated as genocide : the intent that characterizes genocide is \u2018 to destroy , in whole or in ORG a particular group , and deportation or displacement of the members of a group , even if effected by force , is not necessarily equivalent to destruction of that group , nor is such destruction an automatic consequence of the displacement . This is not to say that acts described as \u2018 ethnic cleansing\u2019 may never constitute genocide , if they are such as to be characterized as , for example , \u2018 deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in ORG , contrary to LAW , paragraph ( c ) , of the LAW , provided such action is carried out with the necessary specific intent ( dolus specialis ) , that is to say with a view to the destruction of the group , as distinct from its removal from the region . As the ORG has observed , while \u2018 there are obvious similarities between a genocidal policy and the policy commonly known as \u201c ethnic cleansing \u201d \u2018 ( ORG , IT-CARDINAL - CARDINAL-T , ORG , DATE , para . CARDINAL ) , yet \u2018 [ a ] clear distinction must be drawn between physical destruction and mere dissolution of a group . The expulsion of a group or part of a group does not in itself suffice for genocide.\u2019 ... \u201d","According to the material available to the ORG , there have been only very few cases of national prosecution of genocide in other Convention States . There are no reported cases in which the courts of these GPE have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide , that is , whether the notion of \u201c intent to destroy \u201d covers only physical or biological destruction or whether it also comprises destruction of a group as a social unit .","Amongst scholars , the majority have taken the view that ethnic cleansing , in the way in which it was carried out by the NORP forces in GPE in order to expel NORP and NORP from their homes , did not constitute genocide ( see , amongst many others , PERSON ORG , Genocide in GPE ORG , Cambridge DATE , pp . CARDINAL et seq . ) . However , there are also a considerable number of scholars who have suggested that these acts did amount to genocide ( see , inter alia , PERSON , Genocide : ORG , HOUJIL DATE ) , p. CARDINAL , and PERSON , PERSON i m internationalen und nationalen ORG , GPE am ORG , pp . CARDINAL - CARDINAL ; PERSON , differentiating in GPE , CARDINALst edition , ORG DATE , pp . CARDINAL , CARDINAL et seq . ) .","The relevant provisions of LAW read :","\u201c The Contracting Parties confirm that genocide , whether committed in time of peace or in time of war , is a crime under international law which they undertake to prevent and to punish . \u201d","\u201c Persons charged with genocide or any of the other acts enumerated in LAW shall be tried by a competent tribunal of the State in the territory of which the act was committed , or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction . \u201d","The relevant provision of LAW provides :","\u201c CARDINAL . ORG and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former GPE since DATE .","The International Tribunal shall have primacy over national courts . At any stage of the procedure , ORG may formally request national courts to defer to the competence of ORG in accordance with the present LAW . \u201d","The Appeals Chamber of the ORG , in its decision of CARDINAL DATE on the defence motion for interlocutory appeal on jurisdiction in the case of Prosecutor v. PERSON ( no . IT-CARDINAL - CARDINAL ) , stated that \u201c universal jurisdiction [ is ] nowadays acknowledged in the case of international crimes \u201d ( \u00a7 DATE ) .","Likewise , ORG of the ORG , in its judgment of DATE in Prosecutor v. PERSON ( no . ITCARDINAL\/CARDINAL T ) , found that [ it ] has been held that international crimes being universally condemned wherever they occur , every ORG has the right to prosecute and punish the authors of such crimes . As stated in general terms by ORG in PERSON , and echoed by a GPE court in Demjanjuk , \u201c it is the universal character of the crimes in question ... which vests in every ORG the authority to try and punish those who participated in their commission \u201d ( \u00a7 CARDINAL ) .","According to the information and material before the ORG , including material submitted by the ORG which has not been contested by the applicant , the statutory provisions of MONEY ORG authorise the prosecution of genocide in circumstances comparable to those in issue in the present case .","In many ORG , the prosecution of genocide is subject to the principle of universal jurisdiction , that is , jurisdiction for crimes committed outside the ORG \u2019s territory by non - nationals against non - nationals of that ORG and which are not directed against the ORG \u2019s own national interests , at least if the defendant was found to be present on its territory ( for example GPE , GPE , GPE ( DATE ) , GPE , GPE , GPE , GPE , the GPE ( since DATE ) , GPE , GPE , GPE and GPE ) . At the time of the applicant \u2019s trial , numerous other GPE had authorised the prosecution of genocide committed abroad by foreign nationals against foreigners in accordance with provisions similar to the representation principle ( stellvertretende Strafrechtspflege \u2013 compare LAW no . CARDINAL of LAW , paragraph CARDINAL above ) , for example GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ( since DATE ) . Convention States which do not provide for universal jurisdiction for genocide include , notably , GPE .","Apart from the NORP , NORP and NORP courts , it is in particular the NORP courts that have already adjudicated on charges of genocide , relying on the principle of universal jurisdiction . The NORP Audiencia Nacional , in its judgment of CARDINAL DATE in the PERSON case , held that the NORP courts had jurisdiction over the case . On the subject of the scope of LAW it stated :","\u201c LAW does not preclude the existence of judicial bodies with jurisdiction apart from those in the territory where the crime was committed or international tribunals . ... it would be contrary to the spirit of the LAW ... , in order to avoid the commission with impunity of such a serious crime , to consider that LAW limits the exercise of jurisdiction , excluding any jurisdiction other than those envisaged by the provision in question . The fact that the Contracting Parties have not agreed on universal jurisdiction over the crime for their respective national jurisdictions does not preclude the establishment , by a ORG which is a party to the ORG , of such jurisdiction over a crime which involves the whole world and affects the international community and indeed all of humanity directly , as stated in the LAW itself . ... Neither do the terms of LAW constitute an authorisation to exclude jurisdiction for the punishment of genocide in a ORG such as GPE , whose law establishes extraterritoriality with regard to prosecution for such crimes ... \u201d ( ORG , vol . CARDINAL , pp . CARDINAL et seq . , at pp . CARDINAL - CARDINAL )"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6","7"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61309","languageisocode":"ENG","respondent":"DNK","branch":"CHAMBER","date":2003,"docname":"CASE OF VASILEVA v. DENMARK","importance":3,"conclusion":"Violation of Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed","judges":"Christos Rozakis","text":["On DATE on a public bus in the city of GPE the applicant , born in DATE , had a dispute with a ticket inspector , who accused her of having travelled without a valid ticket . When he was about to issue a penalty fare she refused to disclose her identity and the police were consequently called . They requested that the applicant give her name and address , and since she refused , she was arrested at TIME in accordance with section CARDINAL , subsection CARDINAL , cf . section CARDINAL of ORG ( Retsplejeloven ) and brought to the police station .","From the police reports it appears that the police estimated that the applicant was DATE . Having been deprived of her personal belongings , she was put in a waiting room at TIME and after a visit to the toilet at TIME she was moved to a detention cell . On DATE at TIME the applicant revealed her identity and she was released at CARDINAL a.m.","NORP Immediately after her release , the applicant collapsed and was hospitalised for DATE diagnosed with high blood pressure .","The charge with the offence of refusing to reveal her identity was not followed up by an indictment . The outcome of the applicant 's dispute with the bus company is unknown .","On DATE the applicant complained about the detention to the Chief Constable of GPE ( Politimesteren i GPE ) . In a letter of DATE the Chief Constable provided his comments on the course of event , stating inter alia that the applicant had not been in possession of any papers which could have revealed her identity , that she appeared hysterical and refused to reveal her identity and that in the light thereof for security reasons she was placed in a detention cell . Furthermore , the Chief Constable noted that during the detention the applicant was regularly attended to and called upon through the intercommunication system but that each approach was met with screaming and continuing refusal to reveal her identity ,","On DATE the applicant claimed compensation for having been detained . The Chief Constable decided on the matter on DATE , and in so far as relevant his letter of DATE to the applicant reads as follows :","\u201c In connection with your previous complaint ... you received a ... letter of DATE from Chief PERSON . [ My ] reply to your complaint ... will not differ essentially from the content of [ that letter ] .","However , in view of your relatively advanced age I find reason to regret that you were not , as promised , attended to by a doctor in connection with your stay in the detention cell .","In general , I find the fact that you were taken to the police station , that you were placed in the detention cell , and that the length of your stay in the detention cell from TIME until your release the following day at TIME , totalling TIME can be ascribed substantially to your conduct and unwillingness to assist in replying to the question on which the police needed clarification .","This decision can be appealed against to ORG ...","The claim for compensation made by you as regards the deprivation of liberty will be decided by ORG , who has received a copy of this letter \u201d .","The applicant did not appeal to ORG against the Chief Constable 's decision , but on DATE she complained against the decision to ORG in GPE ( Statsadvokaten i Viborg ) , who refused to grant her compensation on DATE .","In accordance with section CARDINAL e of ORG on DATE the applicant appealed to ORG , who upheld the decision on DATE .","Thereafter , pursuant to section DATE a of ORG the applicant brought her claim for compensation before ORG LAW ) . The prosecution maintained that the applicant 's behaviour necessitated the arrest and the length of the detention . A court session was held on DATE , in which the applicant , represented by counsel , explained inter alia that she had refused to give her name to the ticket inspector partly because she was angry , partly because he already knew her . She alleged that the police did not question her or talk to her during the arrest , during the transportation to the police station , or after the arrival to the station . She had handed over various belongings among those , she believed , various letters from public authorities bearing her name . CARDINAL police officers were heard as witnesses on DATE . The QUANTITY police officers who made the arrest explained inter alia that the applicant twice had refused to give her name and address on their request , once after they had warned her that she would be arrested did she not state the data required . It had been difficult to get in touch with the applicant , who screamed and appeared hysterical . At the police station she was brought before the officer on duty and again she refused to reveal her identity . She had not been in possession of any identification . The officer who had been on duty on DATE explained among other things that after repeated attempts to obtain the applicant 's name and date of birth , he gave up and the applicant was thereafter placed in a waiting room , whereto he went at least once without success to ask her to disclose her personal data before he was off duty at TIME The officer who had been on duty on CARDINAL DATE as from TIME stated inter alia that several times during TIME he send a colleague down to try to get the requested data from the applicant , but they only succeeded TIME , whereupon she was released . A note of DATE from the Chief of Police in GPE was submitted , of which it appeared that the applicant 's case had been thoroughly talked over with the group of duty officers . It had been discussed in particular that the applicant had not been attended to by a doctor in connection with her placement in the detention cell , that she had been detained for many hours , and that no documentation existed to substantiate which steps had been taken during the evening , the night and TIME in order to gain knowledge of the applicant 's identity . The duty officers were ordered , in the future , to appoint at the commencement of every duty period CARDINAL among them to be responsible for the detainees .","By judgment of DATE ORG decided as follows :","\u201c As the [ applicant ] did not disclose her name and address to the CARDINAL [ named ] police officers , she infringed section CARDINAL of ORG , which authorises the imposition of a fine . Thus , pursuant to section CARDINAL , subsection CARDINAL of ORG the [ applicant ] could be arrested .","Also , when brought to the police station immediately after the arrest [ the applicant ] refused to reveal her name and address and consequently , she was put in a waiting room . It is unknown , which efforts were taken to identify [ the applicant ] in the period TIME and TIME during which , the DATE [ applicant ] was placed in the detention cell at least for some time , and during which according to the information available she was denied medical treatment . Having regard to the fact that [ the applicant ] was detained for breaching section CARDINAL of ORG , the police officers on duty were under an obligation continuously to make attempts to establish her identity , and to secure that the detention did not exceed a period proportionate to the cause of the detention cf . the principles set out in section CARDINAL , subsection CARDINAL and section CARDINAL , subsection CARDINAL of ORG . Under these circumstances , the court finds that there was no reason to extend the detention until the following day TIME Accordingly , [ the applicant ] is entitled to compensation in the amount of DKK CARDINAL pursuant to section CARDINAL a , subsection CARDINAL of ORG . \u201d","The prosecution appealed against the judgment to ORG ) , before which the applicant amended slightly her statement given before ORG in that she admitted that the police had asked her before and after the arrest to provide them with her personal data , but that she had refused because she had been angry . CARDINAL of the police officers who were heard as witnesses before ORG repeated their testimonies .","On DATE the ORG gave judgment against the applicant stating as follows :","\u201c Having breached section CARDINAL of ORG [ the applicant ] could be arrested pursuant to section CARDINAL , subsection CARDINAL of ORG .","During the arrest , and the subsequent detention [ the applicant ] was requested continuously to reveal her name and address , which she refused . Furthermore , she did not possess any identity papers , which could have enabled the police to determine her name and address . Finally , [ the applicant ] was released as soon as she revealed her name and address .","Under these circumstances , there is no basis for granting [ the applicant ] compensation pursuant to section DATE a , subsection CARDINAL of the administration of Justice Act .","Moreover , as no circumstances has been established , which could provide a basis for granting compensation pursuant to section DATE a , subsection CARDINAL , [ the court finds for the prosecution . ] \u201d","The applicant 's request of CARDINAL DATE for leave to appeal to ORG ( H\u00f8jesteret ) was refused by the Leave to Appeal Board ( Procesbevillingsn\u00e6vnet ) on DATE .","The relevant provisions of ORG reads as follows :","Section CARDINAL , subsection CARDINAL :","\u201c ORG Prosecutors shall supervise the Chief Constables ' conduct as to criminal trials , and hear appeals against decisions made by the Chief Constables as to instigation of criminal proceedings . Decisions by ORG Prosecutors can not be appealed against to ORG or to ORG ... \u201c","Section CARDINAL , subsection CARDINAL :","\u201c The Minister of ORG is the chief superior of the police and exercises his powers through the National Commissioner of Police , the Commissioner of ORG and the Chief Constables \u201d","Section CARDINAL :","\u201c ... Every person has a duty to disclose his name , address and date of birth to the police upon request . Failure to do so is punishable with a fine . \u201d","Section CARDINAL :","NORP \u201c The police may arrest any person who is reasonably suspected of a criminal offence subject to public prosecution , if arrest must be deemed necessary to prevent further criminal offences , to secure the person 's presence for the time being or to prevent his association with others . ...","\u201c No arrest may be made if , in the nature of the case or the circumstances in general , deprivation of liberty would be a disproportionate measure . \u201d","Section CARDINAL","\u201c An arrest must be carried out as leniently as the circumstances permit . In compliance with section CARDINAL e , the police may search and examine the person affected and his clothes with a view to depriving him of belongings which can be used for violent behaviour or for his absconding , or which may cause danger to the person affected or to others . The police may temporarily seize such belongings and money that are found in the person 's possession . Otherwise , during an arrest the person affected is not subject to any limitations of his personal liberty other than those necessitated for the purpose of the arrest and for the prevention of disorder .","The police shall as soon as possible inform the person being arrested of the charge against him and the time of his arrest . It must appear from the police report that this rule have been observed \u201d","Section CARDINAL , subsection CARDINAL :","\u201c Any person who is arrested must be released as soon as the basis for the arrest ceases to exists . \u201d","Section CARDINAL a :","\u201c CARDINAL . Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted ...","Even if the conditions for granting compensation under subsection CARDINAL are not satisfied , compensation may be granted if the deprivation of liberty can not be considered proportionate to the outcome of the prosecution , or if it is found unreasonable for other particular grounds .","The compensation may be reduced or refused , if the person charged has given rise to the measures himself . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57782","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":1992,"docname":"CASE OF FRANCESCO LOMBARDO v. ITALY","importance":2,"conclusion":"Preliminary objection withdrawn (non-exhaustion of domestic remedies);Violation of Art. 6-1;Just satisfaction not applied","judges":"C. Russo;John Freeland;N. Valticos;R. Pekkanen","text":["Mr PERSON resides in GPE . The facts established by the Commission pursuant to LAW CARDINAL ( article CARDINAL - CARDINAL ) of the Convention are as follows ( see paragraphs CARDINAL of its report ) :","The applicant served in the NORP from DATE to DATE , on which date he was invalided out of the service because he had become disabled as a result of CARDINAL illnesses - an ulcer and neoplasia .","Since DATE the applicant has been in receipt of an ordinary retirement pension .","On DATE he applied for an \u2018 enhanced ordinary pension\u2019 on the ground that the illnesses which had caused his disablement were \u2018 due to his service\u2019 . On DATE the applicant was examined at the GPE military hospital by ORG medico - legal board . On DATE the board concluded that the neoplasia which had caused the applicant \u2019s disablement was not \u2018 due to his service\u2019 .","On DATE , in its decision on the applicant \u2019s request , ORG granted him payment at the enhanced rate for DATE , on the ground that the ulcer he suffered from was \u2018 due to his service\u2019 , but rejected that part of his application concerning the neoplasia .","In a registered letter dated DATE the applicant appealed to ORG against this decision . The appeal was received by ORG on DATE and reached the competent division of that court on DATE , being registered under file no . DATE .","On DATE the applicant asked for his appeal to be given priority , by derogation from the chronological order principle usually applied . Following this request , on DATE , the registry of ORG asked ORG for the applicant \u2019s administrative file ; on DATE it again asked for this file to be forwarded .","In a note of DATE ORG announced that it was shortly to adopt an administrative measure concerning the applicant [ - an adjustment of his pension - ] and that the file would be transmitted thereafter .","The file was received by the registry of ORG on DATE . On CARDINAL DATE the applicant \u2019s appeal and his file were transmitted to the principal public prosecutor , who [ granting Mr PERSON \u2019s application of CARDINAL DATE ] on DATE decided to give the case priority .","On DATE the principal public prosecutor requested the opinion of ORG medico - legal board . He received this opinion on DATE . It confirmed that the applicant \u2019s neoplasia was not \u2018 due to his service\u2019 .","On the basis of this opinion , on DATE , the principal public prosecutor submitted his pleadings , calling for the appeal to be dismissed .","On DATE the applicant again asked for his case to be given priority .","On CARDINAL DATE the president of the division of ORG dealing with the case arranged for a hearing to be held before that division on DATE . However , the hearing did not take place because , following a judgment of ORG ( no . CARDINAL of CARDINAL DATE ) , ORG of ORG gained jurisdiction to hear the case , which was transferred to it on DATE .","This division heard the case at a hearing held on DATE , at the end of which it upheld the applicant \u2019s appeal . The text of the judgment was deposited with the registry on DATE . ...","B. The relevant domestic law","In pursuance of the provisions of Presidential Decree no . CARDINAL of DATE , state public servants are entitled to an \u2018 enhanced ordinary pension\u2019 when their employment in the public service is terminated as a result of a disability or injury attributable to the requirements of the service .","Public servants make direct contributions to the pension fund through DATE payments calculated as a fixed percentage of their wages and deducted therefrom .","The nature of the disability or injury is taken into account for the purpose of deciding which scale is to be applied in calculating the amount of pension . For professional members of the armed forces these scales range from PERCENT of the figure used as the basis for the calculation of pension , i.e. the full amount of the latest remuneration received , plus certain allowances where appropriate . Consequently , the amount of the pension granted is not directly linked to the total contributions paid into the pension fund by the person concerned . \"","On CARDINAL DATE the applicant informed ORG had now paid him part of the amount in issue ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111245","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2012,"docname":"GARCIA CANCIO v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger","text":["NORP The applicant , Mr PERSON Cancio , is a NORP national who was born in DATE and lives in GPE . He is represented before ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their agent Mr H. J. PERSON , PERSON , of ORG .","On DATE investigations in relation to contraband trade of cigarettes were instituted by ORG ( Zollfahndungsamt ) . On DATE the prosecution registered the applicant as an accused in these proceedings ; on DATE he was questioned as an accused .","On DATE the applicant and several co - accused were charged with a violation of LAW ( PERSON ) in conjunction with ORG Resolution No . CARDINAL ( DATE ) concerning the embargo against GPE and GPE ( see relevant domestic and international law below ) , with regard to a total of CARDINAL shipments of cigarettes in DATE and DATE .","On DATE ORG asked the prosecution for clarification regarding its territorial jurisdiction . On DATE the prosecution returned the file to ORG with additional submissions .","On DATE the prosecution withdrew the first indictment .","On DATE the prosecution submitted a new indictment . On DATE this indictment was served on the applicant \u2019s counsel . In DATE ORG ordered a translation of the indictment to be served on the applicant .","DATE the applicant \u2019s counsel requested CARDINAL extensions of time - limits to submit further observations , which were all granted .","On DATE ORG decided to open the main proceedings against the applicant and CARDINAL other co - accused regarding CARDINAL part of the indictment .","On DATE the prosecution and the applicant appealed this decision .","On DATE ORG dismissed the applicant \u2019s appeal arguing that his right to be heard before the opening of criminal proceedings was not interfered with .","On DATE ORG rejected the appeal of the prosecution for the most part .","On DATE ORG dismissed the applicant \u2019s motion for reconsideration .","On DATE ORG dismissed the applicant \u2019s appeal against the decision of ORG of DATE .","On DATE the dates of the trial were fixed for CARDINAL and DATE . On DATE of trial the proceedings against the applicant , who at that time was imprisoned in GPE , were disjointed .","On DATE ORG provisionally stayed the proceedings on request of the prosecution in view of pending criminal proceedings against the applicant in GPE pursuant to LAW paragraph CARDINAL of LAW .","On DATE the applicant lodged a constitutional complaint against the decision of ORG of DATE to open the main proceedings against him . He raised the issue of the length of the proceedings , an alleged lack of fairness of the proceedings and the infringement on the principle of double - jeopardy .","On DATE ORG declared the complaint inadmissible , finding that the impugned decision was a mere intermediate decision and thus did not constitute a suitable object of a constitutional complaint .","On DATE the Government informed the ORG that in response to the pilot judgment PERSON GPE ( no . CARDINAL\/CARDINAL , DATE ) a federal LAW against Protracted Court Proceedings and Criminal Investigations had entered into force on DATE .","NORP In DATE the ORG informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy . The ORG referred to the case PERSON GPE ( ( dec . ) , no . CARDINAL , ECHR CARDINALIX ) and invited him to inform the ORG whether he intended to make use of the new remedy within the time - limit set by the transitional provision of that LAW ( see for details \u00a7 CARDINAL et seq below ) .","NORP By letter of CARDINAL DATE the applicant informed the ORG that the domestic remedy might not apply in his particular case , as the criminal proceedings were stayed . He suggested that the ORG should invite ORG to give further explanations on the new remedy in comparison to the situation in GPE v. GPE ( dec . ) , cited above . He nevertheless requested that his application before this ORG be maintained while the proceedings according to the new remedy were pending . Lastly , he doubted that the costs for the proceedings before this ORG would be reimbursable as damages in the domestic proceedings .","\u201c ( CARDINAL ) A prison sentence of DATE shall be imposed on anyone who violates a statutory order ... which serves the implementation of an economic sanction imposed by ORG of ORG in accordance with LAW . ... \u201d","In DATE the statutory range of punishment ( Strafrahmen ) provided for in LAW ( CARDINAL ) was reduced to an imprisonment from DATE .","United Nations Security Council Resolution CARDINAL ( DATE ) of CARDINAL DATE demanded that all Member GPE should prevent the sale of all products and commodities to ORG and GPE ) , except for humanitarian causes .","With United Nations Security Council Resolution CARDINAL ( DATE ) of CARDINAL DATE the measures imposed by , inter alia , resolution CARDINAL were suspended with immediate effect .","Section QUANTITY of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms :","\u201c ...","( CARDINAL ) Once proceedings have been instituted , the court may provisionally stay them at any stage at the request of ORG .","...","( CARDINAL ) If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence , the proceedings may be resumed , unless barred by limitation in the meantime , within DATE after the judgment imposed for the other offence has entered into force .","( CARDINAL ) If the court has provisionally terminated the proceedings , a court order is required for their resumption . \u201d","The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz \u00fcber den GPE bei \u00fcberlangen PERSON , henceforth : LAW ) was published in LAW I , DATE , page CARDINAL et seq . - on DATE and entered into force the next day .","The LAW introduces general provisions for civil and criminal cases in sections CARDINAL to CARDINAL of LAW ( Gerichtsverfassungsgesetz , henceforth : ORG ) .","The new remedy combines an instrument to expedite the proceedings , an objection to delay ( PERSON ) , which has to be raised before the court whose proceedings are allegedly unduly delayed ( henceforth : trial court ) , with a subsequent compensation claim to be lodged at ORG ( henceforth : compensation court ) , see section CARDINAL paragraph CARDINAL and CARDINAL ORG .","According to section CARDINAL paragraph CARDINAL ORG a party to proceedings ( LOC ) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation . The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons . A compensation award is not dependent on the determination of fault .","The compensation is awarded in monetary form , if other forms of compensation for lengthy proceedings are not appropiate , see section CARDINAL paragraph CARDINAL and section CARDINAL ORG . The compensation for DATE of protraction amounts to QUANTITY","A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim . The action for compensation may not be lodged with a compensation court until DATE after the objection had been raised , see section CARDINAL paragraph CARDINAL ORG . The compensation claim must at the latest be lodged within DATE of the final judicial decision of the trial court .","For protracted criminal proceedings or investigations LAW stipulates in section CARDINAL ORG special provisions , as criminal courts and the prosecution have already established a standard practice compensating for unreasonable length which this ORG considered to be in line with the requirements of Articles CARDINAL \u00a7 CARDINAL and CARDINAL of the Convention ( see GPE and PERSON v. GPE , nos . CARDINAL and CARDINAL , \u00a7 DATE , CARDINAL DATE ) . In criminal cases the courts may either afford compensation by declaring that a specified part of the sentence had to be considered as having already been served or they may terminate proceedings with the consent of the prosecution .","In circumstances where the criminal trial court can not compensate for the excessive length of proceedings , e.g. in cases of acquittal or discontinuance of proceedings for other reasons than length ( see PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , \u00a7 CARDINAL et seq . , CARDINAL DATE ) , the provisions of section CARDINAL ORG apply ( see official motivation of the draft law : record of GPE CARDINAL\/CARDINAL page CARDINAL ) and redress will be granted by monetary compensation .","Proceedings for compensation are subject to court fees . However , the plaintiff will be reimbursed according to the quota of his success in court .","The judgment of the compensation court is subject to appeal on points of law ( Revision ) only .","According to its LAW applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with ORG .","In pending proceedings the objection to delay ( PERSON ) should be raised without delay when LAW entered into force . In these cases the objection preserves a subsequent compensation claim even for the past .","For terminated proceedings whose duration may still become or have already become the subject of a complaint with this ORG it is not necessary to raise the objection prior to filing a compensation claim . The claim based on LAW has to be lodged with the competent court on DATE at the latest ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94566","languageisocode":"ENG","respondent":"AZE","branch":"ADMISSIBILITY","date":2009,"docname":"YAGUBOV v. AZERBAIJAN","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant , Mr PERSON , is an NORP national who lives in GPE , GPE . He is represented before the Court by Mr B. PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was involved in a property dispute with a private person ( S. ) over a retail shop located in the LAW settlement of LOC . At the time of the dispute , the shop was in PERSON \u2019s possession . The applicant claimed to have bought the shop from its previous owners , who had privatised it in DATE , while PERSON argued that the privatisation process had been unlawful and that he had a lawful claim to the shop .","The applicant lodged a lawsuit seeking S. \u2019s eviction from the shop .","By a judgment of DATE , ORG found that the applicant had purchased the shop on DATE and was its lawful owner pursuant to the ownership certificate issued by ORG on DATE . The court further found that PERSON had unlawfully occupied the shop without the owner \u2019s permission . Accordingly , the court ordered PERSON to vacate the shop . PERSON appealed against that judgment .","On DATE ORG delivered a judgment dismissing PERSON appeal . ORG judgment of DATE thus became final immediately . No further appeals were filed .","According to information submitted by the Government , on CARDINAL DATE ORG enforced the judgment of DATE as upheld by ORG and PERSON was evicted from the shop by the police . By a decision of CARDINAL DATE , ORG terminated the enforcement proceedings as the judgment of DATE had been executed .","It appears from the case file that the same shop was subsequently occupied by CARDINAL other persons . On DATE the ORG delivered a judgment ordering their eviction from the shop . That judgment was enforced on DATE .","According to the applicant , however , the shop was subsequently occupied again , by other persons related to S."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80075","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2007,"docname":"CASE OF IVANOVA v. BULGARIA","importance":3,"conclusion":"Violation of Art. 9;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings","judges":"Peer Lorenzen","text":["NORP In DATE ORG was amended to require the registration with ORG of non - profit organisations which had religious or related activities . CARDINAL requests for registration were submitted , but only CARDINAL organisations were registered . Those turned down were primarily NORP groups .","Denial of legal status made it impossible for those organisations to hire public lecture halls or sign contracts in the name of the organisation . The unregistered organisations were unable to open bank accounts or publish journals or newspapers in the name of the organisation and were denied certain tax advantages .","Among the organisations whose registration was turned down was \u201c Word of Life \u201d , a ORG group that had become active in GPE in DATE .","As a result of the authorities ' refusal to register Word of Life , the religious organisation began clandestine activities . Meetings were periodically thwarted by the police followed by media propaganda against the organisation and its members .","On DATE , acting on an order from the GPE 's ORG , the police closed a hall used by ORG in GPE and prevented members from using it .","On DATE a NORP citizen was expelled from GPE because of his participation in a Word of Life course ( see PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ) .","On DATE a force of around CARDINAL policemen prevented members of ORG from attending a meeting at a hall , because it had purportedly been cancelled .","On DATE the police raided private homes in the town of PERSON and a conference hall in FAC . They confiscated religious literature , audio tapes and video cassettes , which they displayed at a press conference DATE . No charges were subsequently brought against any members of ORG .","On DATE and DATE the police raided CARDINAL gatherings of Word of Life followers in private homes . Religious literature was confiscated and the hosts were required to declare in writing that they would no longer organise religious gatherings in their homes .","NORP Throughout DATE and DATE the local Ruse media reported regularly on \u201c unlawful \u201d gatherings and religious activities by Word of Life followers . The media campaign intensified , with the national press joining in , during DATE and DATE . Press coverage was focused on FAC and ORG \u043f\u043e \u0440\u0435\u0447\u043d\u043e \u043a\u043e\u0440\u0430\u0431\u043e\u0441\u0442\u0440\u043e\u0435\u043d\u0435 \u0438 \u043a\u043e\u0440\u0430\u0431\u043e\u043f\u043b\u0430\u0432\u0430\u043d\u0435 \u2013 \u201c the School \u201d ) in ORG because several of the non - academic staff were allegedly followers of Word of Life . The media also waged a personal campaign against some of those individuals by naming and condemning them as followers of the religious organisation . It called for their dismissal and named the applicant as one of the individuals whose employment should be terminated ( see , for example , paragraph CARDINAL below ) .","As a direct result , ORG and ORG initiated inquiries into the religious activities of the ORG 's staff members .","On DATE ORG , in summarising the findings of ORG , found that there were insufficient grounds for opening a preliminary investigation . At the same time it stated that , inter alia , the activities at the School were \u201c not free of criminal culpability \u201d , and that they were in contravention of LAW and \u201c probably \u201d the relevant education Acts and regulations . Moreover , the allegedly \u201c unlawful \u201d religious activities were considered to have been carried out with the tacit approval of its principal .","Soon thereafter , the Regional Governor ( \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u0438\u044f\u0442 \u0443\u043f\u0440\u0430\u0432\u0438\u0442\u0435\u043b ) and a local member of parliament ( \u201c the MP \u201d ) called for radical measures to be taken to curb the alleged religious activities at the ORG and to dismiss the principal . They made public threats that , if such measures were not taken , they would petition ORG , ORG ( \u201c the Ministry \u201d ) to dismiss the Chief Educational Inspector for ORG ( \u201c the Educational Inspector \u201d ) .","On DATE the principal of the School was dismissed by ORG . The dismissal order directly referred to the negative media coverage and the findings of ORG and accused her of tolerating the activities of ORG at the ORG to the detriment of its staff and pupils . It also suggested that the principal should have dismissed those members of staff who were Word of Life followers . It is unclear whether the principal appealed against her dismissal .","A new principal was appointed soon thereafter .","In a broadcast on the Hristo Botev radio station , aired on DATE , the MP stressed that there were still members of ORG working in the ORG , such as the swimming pool manager ( the post occupied by the applicant ) , and inferred from this that the ORG had not conclusively resolved the matter with the dismissal of the former principal .","The applicant was a mechanical engineer and had a second university degree in pedagogical sciences . She had been involved in the religious activities of ORG since DATE .","On DATE the applicant was appointed by the School to the post of \u201c mechanic \u201d at its swimming pool on a temporary employment contract until DATE .","On an unspecified date , the ORG approved a new roster of posts ( \u0449\u0430\u0442\u043d\u043e \u0440\u0430\u0437\u043f\u0438\u0441\u0430\u043d\u0438\u0435 ) for the ORG effective as of DATE , which provided for the post of \u201c swimming pool manager \u201d with a requirement for the holder of the post to have completed a course of secondary education . By a further amendment of CARDINAL DATE the holder of the post was required to have a higher - education qualification .","On DATE the applicant was promoted to the post of \u201c swimming pool manager \u201d and concluded a temporary employment contract with a term up to CARDINAL DATE .","On DATE the applicant 's temporary employment contract was extended until DATE .","On DATE the applicant concluded an employment contract of indefinite duration , which provided for her appointment to the post of \u201c swimming pool manager \u201d as of DATE . Her job description indicated that her responsibilities included , inter alia , managing and supervising the staff of the swimming pool , organising their work schedules , monitoring the regular accounting of the proceeds from the swimming pool and organising the swimming lessons . The job description did not expressly refer to any education or professional qualification requirements for the post . The applicant 's basic salary was set at CARDINAL old NORP levs ( MONEY ( ORG ) ) with a PERCENT bonus for length of service .","On an unspecified date the ORG approved a new roster of posts for the ORG effective as of DATE . It provided for the post of \u201c swimming pool manager \u201d with a requirement that the holder of the post have a higher - education qualification .","On DATE the principal of the ORG was dismissed and a new one was appointed soon thereafter .","On DATE the applicant was summoned to a meeting with ORG and his deputy . Another member of staff , PERSON , was also summoned to the meeting , which took place on the premises of the School . At the meeting , the inspectors asked for their resignations as a means of easing public tensions . The applicant contended , although this was disputed by the Government , that the inspectors had threatened them that if they did not resign of their own accord or did not renounce their faith , they would be dismissed on disciplinary grounds . The inspectors claimed that irrespective of their work performance they \u201c could instruct the [ new ] principal \u201d to dismiss them . PERSON denied being a member of ORG , while the applicant did not and also refused to resign . No assessment or mention was made during the meeting as to whether the applicant was performing her job well and whether she met the requirements for holding her post .","On DATE the applicant informed the new principal of the School in writing of her meeting of DATE with ORG and his deputy . No action was taken in response .","Thereafter , the new principal alienated the applicant \u2013 her office phone was removed , the locks to the swimming pool were changed without her being provided with a set of keys and the supervision of the renovation of the swimming pool was entrusted to a subordinate even though it should allegedly have been her responsibility . The new principal also made enquiries as to the applicant 's work performance .","On DATE the human resources department of the ORG prepared a list of CARDINAL employees allegedly without job descriptions . The applicant 's name and post were among them .","On DATE PERSON radio aired the interview with the MP in which he implied that the applicant 's post was CARDINAL of those still being occupied by a member of ORG ( see paragraph CARDINAL above ) .","By an order of CARDINAL DATE the applicant was dismissed , with immediate effect , on the grounds of not meeting the education and professional qualification requirements for the post of \u201c swimming pool manager \u201d ( LAW ( CARDINAL ) of LAW ) . When she was served with the order , the applicant enquired as to which requirements she did not meet , but the new principal did not inform her .","On DATE the applicant initiated proceedings before ORG challenging the lawfulness of the dismissal . She also sought reinstatement in her previous post and compensation for loss of income .","The applicant maintained that her dismissal was directly related to her religious beliefs and her refusal to resign of her own accord . Such a reason for terminating her employment contract , she argued , was a violation of LAW of LAW and LAW , which prohibited religious discrimination .","During the trial it was established that in DATE there had been a further amendment to the ORG 's roster of posts , which ORG had approved in a letter of DATE , but with effect from DATE . The amended roster of posts no longer envisaged the post of \u201c swimming pool manager \u201d , but provided for the post of \u201c sports complex organiser \u201d . On an unspecified date a job description had also been prepared for the new post which set out the requirements for the holder of the post as follows : \u201c university degree in sports , university degree in economics , as an exception \u2013 secondary education with specialisation in the relevant sport , qualified lifeguard , certified swimming instructor . \u201d","NORP The applicant argued before ORG that the changes to the ORG 's roster of posts should have taken place in accordance with standard practices and should not have been arbitrary . She claimed that the standard practice was to make changes to the roster of posts before the beginning of DATE . The applicant also claimed that the changes were arbitrary because there had not been any objective necessity , stemming from the work being performed , to change the requirements for the post .","A hearing was held on DATE at which the respondent party presented the new job description for the post of \u201c sports complex organiser \u201d .","At a hearing on DATE several witnesses gave evidence . ORG testified that the standard practice was to make changes to the roster of posts before DATE unless an urgent need , usually of a financial nature , required otherwise . He confirmed that he had met with the applicant in DATE in connection with the findings of ORG and that he had invited her to resign in view of the mounting discontent and public opinion . He stated that he had not enquired as to the activities of ORG at the ORG and that he was not familiar with the applicant 's work performance .","PERSON also testified and informed the court that the new principal had threatened her with dismissal if she talked about her work at the School . She testified as to the meeting of DATE with ORG and stated that , faced with the claim of being a follower of Word of Life , she had denied it . She stated that she had broken down and cried during the meeting because she had CARDINAL children to support and did not want to be left without a job . PERSON also informed the court that , as far as she was aware , the applicant had been a good and diligent employee , who had maintained good relations with the other members of staff .","A teacher from the ORG also testified at the hearing . He informed the court that since its construction in DATE the swimming pool had always had a manager , but that there had never been a requirement of a university degree in sports for the post . The teacher also testified as to the content of the radio broadcast of DATE , in which the applicant had been singled out for dismissal by the MP .","On DATE the applicant filed her written submissions with ORG , contending that the evidence in the case supported her claim . She maintained that the ORG 's roster of posts had been changed in the middle of DATE with the sole aim of introducing such requirements for her post as to allow her dismissal on those grounds .","On CARDINAL DATE ORG dismissed the applicant 's claims . In its judgment the court noted that the burden of proof as to whether the dismissal had been lawful or not lay with the School . It found , inter alia , that the School had complied with the procedure for changing the roster of posts and that the new job description for the post was in conformity with the standard job descriptions for such posts as approved by ORG . In addition , the court found that with the changes to the requirements for the post the ORG had envisaged the possibility that the person appointed to the job would not only manage and organise the activities of the swimming pool but could also act as a lifeguard or swimming instructor , a factor which the court deemed to be of \u201c vital importance \u201d . Based on these considerations , the court found that \u201c there really had been preconditions [ which entailed ] changing the requirements for the post \u201d and that the dismissal was therefore lawful . Separately , ORG found that the applicant 's claims that her dismissal had been motivated by her religious beliefs were not supported by the evidence in the case , that in fact the applicant had had very good relations with the other members of staff and that there were no complaints as to her work performance . The court also reasoned that the applicant 's assertions in this respect were refuted by the fact that PERSON was still employed by the ORG .","On DATE the applicant appealed against the judgment of ORG . She claimed , inter alia , that its findings were not based on the evidence established in the case and were therefore unfounded . She claimed that ORG had failed to make a proper assessment of key evidence , such as the testimonies of ORG and PERSON","The applicant also questioned the grounds of the first - instance court for dismissing her claim and contended that they were frivolous and at odds with the substance of her complaint alleging religious discrimination . Firstly , she had never claimed that her personal relations with her colleagues had suffered as a result of her religious beliefs . Secondly , she submitted that the first - instance court 's reasoning that there had been no discrimination against her , considering that PERSON was still employed by the ORG , was incorrect as there were various possible reasons for PERSON continued employment , such as the fact that the media had not singled her out for dismissal .","The applicant also claimed that ORG had never analysed in substance her complaint alleging religious discrimination , but had dealt with the matter purely as an issue of unfair dismissal .","Finally , she maintained that the facts of the case clearly showed that following her refusal to resign on DATE the ORG had simply tried to find a legal ground for dismissing her and that the chosen method was to change the requirements for the post she occupied so that she would become ineligible to hold it .","On DATE the former principal of the ORG filed submissions with ORG , attesting to a conversation she had had in DATE with ORG . At the meeting he had identified CARDINAL employees in respect of whom there had been \u201c information that they were members of a sect \u201d and whose employment he had insisted be terminated . At the time , the former principal had suggested that those employees resign of their own accord , but they had refused and no further action had been taken against them . It is unclear whether the applicant was CARDINAL of those employees .","In a judgment of DATE ORG dismissed the applicant 's appeal . The court found , inter alia , that the ORG had both a need and the right to change the roster of posts and the requirements for the applicant 's post and to dismiss her because she did not meet those requirements . It also found that ORG had adequately addressed the applicant 's allegations of religious discrimination and found them to be \u201c totally and irrefutably ... irrelevant \u201d based on the fact that she had maintained good relations with her colleagues and had been a good employee . Any allegations of subjective reasons or discriminatory grounds for her dismissal were therefore considered unfounded .","On DATE the applicant filed a petition for review ( cassation appeal ) , claiming , inter alia , that the lower courts had failed to properly evaluate the evidence before them and had never addressed the substance of her complaint alleging religious discrimination . She maintained that they had failed to assess the circumstances surrounding her dismissal and especially the events leading up to it , which clearly demonstrated the real reason why this legal method had been used to terminate her employment .","A hearing was conducted on DATE , which the applicant and her counsel , though duly summoned , did not attend . They presented their submissions to the court in writing .","In a final judgment of CARDINAL DATE ORG dismissed the applicant 's appeal . The court found , inter alia , that the applicant 's arguments were unsubstantiated , and upheld the findings of the lower courts . It stressed that the ORG had the right to change the requirements for the post and that such changes were not subject to judicial review . In addition , it compared the duties and responsibilities of the posts of \u201c swimming pool manager \u201d and \u201c sports complex organiser \u201d and found them to be essentially the same . ORG also noted that the old job description had lacked any education or professional qualification requirements for the post , while the new one had included such requirements . It reasoned , therefore , that the employer had simply filled a gap that had previously existed in that respect .","NORP The court refused to address the remainder of the arguments of the applicant as it found them to be irrelevant to the proceedings and to the issue of the dismissal .","The relevant provisions of the DATE LAW read as follows :","\u201c ( CARDINAL ) ORG shall be free .","... \u201d","\u201c ( CARDINAL ) NORP The freedom of conscience , the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable . The ORG shall assist in the maintenance of tolerance and respect between the adherents of different denominations , and between believers and non - believers .","( CARDINAL ) NORP The freedom of conscience and religion shall not be exercised to the detriment of national security , public order , public health and morals , or of the rights and freedoms of others . \u201d","The relevant provisions of LAW DATE read as follows :","\u201c All citizens in GPE shall be afforded the freedom of conscience and religion . \u201d","\u201c No one shall be persecuted or restricted in his civil and political rights , nor be dismissed from the performance of duties entrusted to him by law , on account of belonging to CARDINAL or another religious denomination or for not associating with any CARDINAL religious denomination ... \u201d","LAW ( Article CARDINAL ) , LAW of DATE ( section CARDINAL ) and LAW ( LAW ) provide for protection against discrimination grounded on , inter alia , religious beliefs .","An amendment of LAW of DATE widened the scope of protection against discrimination in the workplace to include \u201c indirect discrimination \u201d , which was defined in item CARDINAL of \u00a7 CARDINAL of LAW to LAW as follows :","\u201c ' Indirect ' [ refers to ] the discrimination whereby ostensibly legal solutions are used in exercising labour rights and duties , but they are applied , in the light of the criteria under LAW [ of LAW ] , in a manner which in reality and in fact places some workers and employees in [ a ] less favourable or privileged position compared to others . Discrimination [ does not exist where ] the differences or the preferences [ are ] based on the qualification requirements for performing a specific job , or where special protection is given to certain [ types of ] workers and employees ( juveniles , pregnant women and mothers of young children , disabled people , those with reduced working capacity and other similar groups ) , as established by normative acts . \u201d","The above definition was repealed on DATE with the entry into force of ORG , which provides a comprehensive framework for protection against discrimination . Section CARDINAL(CARDINAL ) of the LAW introduced the following new definition of \u201c indirect discrimination \u201d :","\u201c Indirect discrimination is placing a person on the basis of the criteria in LAW sex , race , nationality , ethnicity ... , religion and belief ... ] in a less favourable position in comparison to other persons by way of an ostensibly neutral provision , criterion or practice , unless the said provision , criterion or practice is objectively justified in view of a statutory aim and the means of attaining the said aim are appropriate and necessary . \u201d","An employer may terminate a contract of employment by giving notice in writing to an employee where he or she does not have the necessary education or vocational training for performing the work assigned ( Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW ) .","In reviewing such terminations the domestic courts have as their established practice that for a dismissal to be lawful ( under LAW ( CARDINAL ) of LAW ) it is sufficient for the courts to establish that there were new requirements in terms of education or vocational training for performing the assigned work which the employee no longer met , without their being required to assess the necessity for introducing such requirements ( see , for example , \u0440\u0435\u0448\u0435\u043d\u0438\u0435 ORG DATE \u043e\u0442 CARDINAL \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL \u043e\u0442 DATE \u0433. , ORG \u0433. \u043e. ) .","Section CARDINAL of LAW ( DATE ) proclaims the system of education to be secular .","ORG against Racism and Intolerance ( \u201c ECRI \u201d ) , in its CARDINAL reports on GPE for the years CARDINAL\u2013CARDINAL , found that during the period there had been a high degree of intolerance in the media towards minority religious groups , particularly new religions . It also found the authorities to be somewhat passive in the face of acts of intolerance , which were not sufficiently combated or punished .","ECRI also reported that there had been religious discrimination in the field of education and that there had been cases of dismissal in the public sector for religious beliefs .","Human Rights Watch and ORG , in their DATE reports for DATE , noted that violations of religious freedoms in GPE had significantly increased over the period , especially with regard to what had been referred to as \u201c non - traditional \u201d religious denominations . They observed that the authorities had sought to impose restrictions on thought and religion and to restrict religious diversity , for example by introducing a requirement that non - profit organisations which pursued religious or related activities or dispensed religious education must first obtain the approval of ORG before they registered as such .","DATE . The NGOs also reported that there had been cases of dismissal in the public sector for religious beliefs and mentioned specific instances involving followers of Word of Life ."],"violated_articles":["9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22288","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2002,"docname":"GREUTER v. THE NETHERLANDS","importance":3,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national , born in DATE and living in GPE . She is represented before the Court by Mr FAC ORG , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant \u2019s partner , PERSON , was killed on DATE in PERSON during a fight between supporters of the GPE soccer club LOC and supporters of the GPE soccer club PERSON . Following an investigation by the regional police GPE \u2013 PERSON of the killing of PERSON , a number of suspects were arrested .","Shortly afterwards , the regional police GPE - Amstelland opened an investigation into whether and to what extent LOC supporters formed part of a criminal organisation specifically involved in ( the organisation of ) fights and\/or street vandalism and violence . In this context , the GPE public prosecutor ( officier van justitie ) opened a preliminary judicial investigation ( gerechtelijk vooronderzoek ) against NN ( nomen nescio ; i.e. against a person or persons unknown ) .","In the course of this preliminary judicial investigation and upon the request of the public prosecutor , the investigating judge ( rechtercommissaris ) authorised the tapping of a telephone line , the number for which was registered in the applicant \u2019s name . It was tapped DATE and DATE . In addition , the investigating judge authorised that a print - out be obtained of all telephone communications having taken place on this line DATE and DATE . At no point did any suspicions arise that the applicant herself had been involved in any criminal activities .","The lawyer who was acting on the applicant \u2019s behalf in the criminal proceedings against the suspected perpetrators of the killing of PERSON , and who also acted as defence counsel in criminal proceedings against a soccer supporter called PERSON , learned of the existence of the tapping of the applicant \u2019s telephone , as it was mentioned in PERSON \u2019s case - file . With PERSON \u2019s permission , the lawyer informed the applicant of the tapping of her telephone .","In a letter of DATE , the applicant \u2019s lawyer put the following questions to the public prosecutor :","\u201c a. Is it correct that the above telephone number has been tapped under your responsibility ?","b. If so , during which period has this taken place ?","c. Can you tell me when you informed my client of this , i.e. that her telephone was tapped during a certain period ?","d. In case this has not taken place so far , when would you have intended to do so and , if so , mentioning what grounds ?","e. What were the reasons for the \u201c tapping \u201d and of what criminal offence was she suspected ?","f. Is she still suspected of having committed that criminal offence ?","g. Would you kindly provide me , on behalf of < the applicant > , with a copy of all conversations that were recorded and listened to , in particular all the formal records of interception ( processen \u2013 verbaal van opname ) . \u201d","In his reply of DATE , the public prosecutor informed the applicant \u2019s lawyer as follows :","\u201c In answer to a number of your questions I could refer you to the formal record that is already in your possession in your capacity as the lawyer of the suspect PERSON On page CARDINAL of that record it is set out that and why the telephone of your client < the applicant > has been tapped . I will nevertheless reply to your questions point by point .","a. Yes .","b. From DATE to DATE .","c. I have not informed her of this .","d. I did not have the intention to inform her of this , since the tapping took place in the context of a preliminary judicial investigation against NN .","e. Your client was the partner of PERSON , who was killed during the clash between ORG and PERSON supporters in PERSON and who was formerly a barkeeper in the caf\u00e9 U. , that was owned by your client and where , according to the information of ORG ( Criminele Inlichtingen ORG ; \u201c ORG \u201d ) , the hard core group of ORG supporters gathered . On this ground it was considered plausible that as yet unknown members of the hard core group , who were involved in acts of violence , could have contacts via the telephone number at issue . Your client was not suspected of a criminal offence in this connection .","f. See the last sentence under e.","g. No . The tapping has \u2013 as said \u2013 not taken place in the context of criminal proceedings against your client . A number of intercepted telephone conversations have been added to the note requesting authorisation to conduct a house search in connection with one of the suspects . In consultation with the investigating judge , it has been decided to grant you access to those conversations . \u201d","In his letter of DATE to the public prosecutor , the applicant \u2019s lawyer pointed out , inter alia , that the applicant had sold caf\u00e9 U. DATE and that it would have been understandable had the caf\u00e9 \u2019s telephone been tapped , but the fact that the applicant \u2019s private telephone line had been tapped was incomprehensible . The lawyer requested the information which had led to the telephone tapping , and a copy of the memoranda and other evidentiary items indicating that the applicant \u2019s telephone line would be used by members of the hard core group , and that these persons maintained contacts via this telephone .","In his reply of DATE , the public prosecutor stated inter alia :","\u201c ... My answer is possibly understandable ... when you see the situation as a whole and not only for a part thereof .","Let me , in spite of this , formulate it differently : your client was the owner of a caf\u00e9 where the group of ORG hard core supporters met regularly . The suspicion that members of this hard core group would maintain contacts via the private telephone line of your client is not so incomprehensible when account is taken of the fact that your client \u2019s partner , PERSON , apparently belonged to that group since he went along to the planned violent clash between the hard core of ORG supporters and the hard core of PERSON supporters , during which clash he was killed .","In any event , the investigating judge considered this sufficient to issue an authorisation for tapping the telephone number concerned .","Since your client is not a suspect in this case , I will not add the \u2018 memoranda and other evidentiary ORG requested by you . \u201d","On DATE , the applicant \u2019s lawyer transmitted a copy of the letter of DATE to the investigating judge , requesting a copy of the documents he had asked for in his letter of CARDINAL DATE . Despite a reminder sent on DATE , it remained unanswered .","Until DATE , the rules about the interception of communications made through public telecommunication networks or services were set out in Articles CARDINALf - h of LAW ( PERSON ; the \u201c ORG \u201d ) . Further rules on the practical exercise of the power to intercept communications were set out in LAW ( PERSON ) of DATE , a copy of which could be obtained by any interested person . The text of these Guidelines had further been published in , inter alia , ORG ( Nederlands Tijdschrift voor de Mensenrechten ) of DATE . These Guidelines , which did not have the formal character of law , had been issued as a model letter from the senior public prosecutors to the police .","The above rules initially only covered communications by telephone . As from DATE , when ORG ( Wet op de Computercriminaliteit ) entered into force , they also covered communications by fax and e - mail . On DATE , when the Act of CARDINAL DATE on amendments of the ORG in relation to special methods of criminal investigation entered into force , the provisions of LAW of the ORG were replaced by ORG CARDINAL m and ORG .","Pursuant to LAW ORG , as in force at the material time , the tapping of communications can only be effected in regard to offences for which detention on remand ( voorlopige hechtenis ) may be imposed , i.e. offences of a certain gravity carrying a punishment of imprisonment of DATE or more ( LAW ORG ) . The tapping can only concern communications in which a suspect is likely to participate , and it can only be ordered where the investigation urgently requires it . It must be authorised by the investigating judge . Furthermore , a record ( proces - verbaal ) of the tapping must be prepared within TIME .","Under LAW ORG , as in force at the relevant time , records without importance for the investigation must be destroyed as soon as possible by order of the investigating judge . As to the destruction of information obtained via the interception of telephone conversations , the standard practice in fact differed from the Guidelines . On the basis of , inter alia , the ORG \u2019s findings in the cases of ORG and PERSON v. GPE ( judgments of DATE , Series A no . CARDINAL-A&B ) as regards the possibility of inspection by the judge and by the defence , the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case . Anyone requesting access to such material was required to give reasons for such a request .","Where no suspect can be identified immediately and in order to obtain a tapping authorisation from the investigating judge , a preliminary judicial investigation against a person or persons unknown ( \u201c NN \u201d ) may be opened . As soon as the name(s ) of the suspected perpetrator(s ) can be established , the preliminary judicial investigation is to be put in the name of the suspect(s ) concerned ( LAW ORG ) . By subsequently availing him or herself of the right to be granted access to the case - file ( LAW ORG ) , a suspect can become aware of the fact that communications have been tapped during the investigation .","Until DATE , the Code of Criminal Procedure itself contained no provision on the period during which tapping of telecommunications may be carried out . However , pursuant to the Guidelines on the Interception of Telephone Conversations , a period of not DATE was set . PERSON could also not exceed DATE . After DATE the responsible police officer was required to submit an interim report to the public prosecutor and the investigating judge . The provisions of ORG CARDINAL m and FAC , as in force as from DATE , incorporated these DATE rules ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90645","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF MEDOVA v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in PERSON .","The applicant lived with her husband , Mr PERSON ( born in DATE ) , in PERSON , PERSON . The applicant is a linguist by training , and currently looks after her CARDINAL children , born in DATE and DATE . In DATE her husband temporarily resided in GPE in GPE .","The applicant submitted that on DATE at TIME her husband had left his temporary home in GPE in his car ( GPE VAZ CARDINAL ) . According to his brother , Mr PERSON , he should have had MONEY with him , which he had borrowed from his relatives . He did not come back home that night .","In TIME DATE the applicant \u2019s husband called his brother , Mr PERSON , on his mobile phone and said that his car had broken down . He tried to say where he was , but the phone was cut off .","In TIME of CARDINAL DATE the ORG were informed that their son , Mr PERSON , was being detained at ORG of the ORG ( ORG ) . At TIME several of Mr PERSON \u2019s relatives , including his father and CARDINAL brothers , arrived at the village of GPE ( also called GPE ) DATE the administrative centre of the ORG district DATE and went to the ROVD building .","There the policemen told them that on DATE the traffic police stopped CARDINAL vehicles , a green GPE CARDINAL and a PERSON , for an inspection near the Kavkaz-CARDINAL crossing between GPE and GPE . The policemen heard noise coming from the boot of the GPE car . They opened it and found a man tied up ( according to the policemen this was PERSON PERSON ) who cried \u201c I am an PERSON ! They are trying to take me out of here ! \u201d . The NORP car then started to move towards GPE , but was stopped by the policemen . In its boot they found another man tied up .","NORP The policemen arrested the persons who were in both cars and took them and the CARDINAL bound men to the Sunzhenskiy ROVD at TIME","According to the policemen , Mr PERSON was questioned and explained that on DATE he had been apprehended near the ORG restaurant in GPE along with a man to whom he had been giving a lift in his car , and whose name he did not know . He said he had been apprehended by CARDINAL men , CARDINAL of them of NORP origin and CARDINAL of them of NORP origin , and subsequently taken to ORG ( ORG ) headquarters in ORG , the capital of ORG . There he had been beaten and tortured . At some point on DATE he had been forced to call his family to convince them not to start searching for him .","By TIME of CARDINAL DATE numerous relatives of Mr PERSON had gathered in front of the ORG . The policemen asked his relatives to bring food and agreed to take it to him . Later they offered to allow CARDINAL of Mr PERSON \u2019s brothers , Mr PERSON and Mr PERSON , to visit him inside the building . While the CARDINAL men were standing on the ground floor of the police station , they heard someone shouting \u201c No visits ! They should leave ! \u201d PERSON and PERSON were then escorted to the exit of the ROVD building .","At TIME on DATE the policemen came outside to where the relatives of Mr PERSON were waiting and told them that he and another detainee had been driven to GPE . Mr K - v , an officer of ORG , had accompanied the cars to the Kavkaz-CARDINAL roadblock . This was the last news the relatives had of Mr PERSON .","On DATE , in reply to the ORG \u2019s request of CARDINAL DATE for factual information relating to the detention and whereabouts of Mr PERSON , the Government first submitted that ORG was not aware of his alleged abduction or his whereabouts . He had not been detained in the ORG DATE . His relatives had not applied to the department of the interior with a complaint about Mr PERSON \u2019s abduction . Furthermore , according to the information submitted by ORG , on DATE the Prosecutor \u2019s Office of Ingushetia had opened a criminal case under LAW ) of LAW abduction committed by a group .","On DATE the Government submitted the following information received from ORG :","\u201c In TIME of CARDINAL DATE police officers stopped CARDINAL cars at the \u201c Volga-CARDINAL \u201d stationary road checkpoint , located on federal route \u201c GPE \u201d , near the administrative border of GPE . The CARDINAL men sitting in the CARDINAL cars refused to produce their documents . In this connection they were brought to the ORG [ ROVD ] , where CARDINAL of the above - mentioned CARDINAL men introduced themselves as officers of ORG ] in GPE and produced their documents . The highest ranking officer of the group , PERSON , gave the following explanation of what had happened . He said that on DATE in ORG they had apprehended CARDINAL men , PERSON and [ PERSON ] , who were wanted on suspicion of having committed grave crimes , and that they were taking them to GPE . Mr Beletskiy produced documents that showed the lawfulness and validity of Mr PERSON \u2019s and [ PERSON \u2019s ] arrest and detention . After that the above - mentioned officers ... and the CARDINAL detained persons left for GPE .","According to information provided by ORG of GPE , officers of the law - enforcement bodies of GPE had not apprehended PERSON and there was no information that the latter had been brought to the territory of GPE . According to ORG in GPE , Mr Beletskiy V.V. was not on the staff of that GPE . Moreover , the ORG did not have any information regarding PERSON apprehension and whereabouts .","On DATE ORG of GPE initiated a criminal case in respect of an offence defined by LAW ( a ) ( abduction by a group of persons after preliminary collusion ) in connection with Mr PERSON \u2019s and [ PERSON \u2019s ] disappearance .","At present PERSON PERSON \u2019s and [ PERSON \u2019s ] location is not established . PERSON allegations that her husband is being detained at the LOC military base have not proved to be true \u201d .","Immediately after DATE the members of Mr PERSON \u2019s family started to search for him . On numerous occasions , both in person and in writing , they applied to prosecutors at various levels , ORG , the ORG , administrative authorities and public figures . The applicant and other family members received conflicting information about the circumstances of Mr PERSON \u2019s apprehension and detention , and hardly any about his whereabouts after DATE .","On DATE , upon a request by Mr PERSON \u2019s relatives , the chairman of ORG \u201c XXI Vek \u201d asked ORG of the ORG and the Sunzhenskiy ROVD if Mr PERSON had been detained on DATE , and if so , where he was . On DATE the Sunzhenskiy ROVD replied that Mr PERSON had not been detained by them .","NORP However , on DATE the deputy prosecutor of LOC informed the PERSON that \u201c on CARDINAL Medov A.K. was detained by officers of ORG for GPE under the command of LOC \u201d On DATE the same prosecutor informed the applicant \u2019s family that on DATE he had \u201c requested the military prosecutor of ORG ( UGA ) to submit relevant information \u201d .","On DATE the acting prosecutor of ORG replied to a member of ORG , Mr PERSON , that an investigation was ongoing into the Medovs\u2019 complaint about the detention and ill - treatment of Mr PERSON by ORG officers on DATE .","On DATE the deputy prosecutor of LOC again confirmed to the applicant \u2019s family that \u201c on CARDINAL PERSON was detained by officers of ORG for GPE under the command of LOC On DATE [ M. ] , the military prosecutor of the ORG , was requested to submit information relating to the grounds of the arrest . \u201d","On DATE the acting prosecutor of ORG replied to PERSON PERSON that , since PERSON had been detained by ORG officers from GPE , all complaints submitted by his family had been forwarded for investigation to the military prosecutor of the UGA .","On DATE the Chief of ORG GPE wrote to the applicant and stated that PERSON had not been arrested or detained by its officers and that they had no information about his whereabouts .","On DATE Mr PERSON \u2019s relatives sent CARDINAL letters to ORG , the Minister of ORG Ingushetia and LOC , in which they described the known circumstances of Mr PERSON \u2019s apprehension and requested that an investigation into the abduction be carried out and his whereabouts be established .","On DATE the Chairman of Memorial , PERSON , and a member of ORG with the President of GPE , PERSON , met in PERSON with PERSON , the prosecutor of LOC . The applicant submitted a transcript of the discussion signed by PERSON . According to that document , on DATE Mr M - v had been informed that at QUANTITY a group of armed persons had been stopped at the Kavkaz-CARDINAL roadblock while trying to take CARDINAL persons to GPE . The armed persons had produced documents to show they were ORG officers from GPE and insisted that they were acting lawfully . The prosecutor had demanded that they be taken to the ORG and personally went to the roadblock , but by that time they had agreed to go and had driven to the Sunzhenskiy ROVD . At the ROVD the detained persons had produced identity documents issued by ORG for GPE bearing the names LOC , Detective PERSON , Corporal PERSON and PERSON DATE . They had also produced documents authorising them to arrest Mr PERSON and PERSON , who had been found by the policemen in the boots of the cars . Mr M - v had called the local ORG office , which confirmed that the arrest had been legal . The prosecutor had had to order the release of the detained persons , who had departed for GPE through a back door , taking the CARDINAL men with them .","In DATE the applicant and Mr PERSON mother wrote several letters to ORG , ORG , ORG for GPE , and ORG , referring to the information obtained in DATE and asking for information about Mr PERSON \u2019s whereabouts and news of the investigation .","On DATE the NORP Human Rights Commissioner wrote to ORG and the Director of the ORG in respect of Mr PERSON \u2019s arrest and detention .","On DATE the deputy chief of ORG for GPE replied to the applicant . He denied that Mr PERSON had been arrested or detained by the ORG \u2019s officers and stated that they had no information on his whereabouts . The letter further stated that ORG , Detective PERSON , Corporal PERSON and PERSON DATE . were not members of the ORG \u2019s staff .","On DATE ORG replied to the NORP Human Rights Commissioner , stating that a criminal investigation into the abduction was pending , and that at the moment no law - enforcement authority possessed information about Mr PERSON \u2019s arrest and detention or whereabouts . The letter also stated that on DATE the CARDINAL armed men and their CARDINAL prisoners had been released from the ORG upon orders of the then acting Minister of ORG Ingushetia , PERSON ORG , who had been killed on DATE .","On DATE the ORG replied to the Human Rights Commissioner and stated that the service had no information about Mr PERSON \u2019s arrest and detention or whereabouts , and that the CARDINAL named servicemen were not members of ORG for GPE .","On DATE the applicant complained to ORG about the inactivity of the investigator in charge of the case concerning her husband \u2019s abduction .","On DATE the applicant applied in person to the investigator in charge of the case with a request to conduct certain investigative measures , including questioning of the officers who had been on duty at the roadblock on DATE and the officer who had escorted her husband and the persons who had detained him to the border between GPE and GPE . According to the applicant , during her visit in person the investigator had refused to accept the application or include it in the case file . She had then sent it by registered mail .","On DATE the applicant complained to ORG of GPE about the investigator \u2019s refusal to accept the application of DATE and to take the requested investigative measures .","On DATE ORG examined the complaint . At the hearing the investigator submitted that the applicant had applied to be provided with information on the progress of the investigation once and had received a written reply . He had not received any other applications from her . He contended that the investigative measures requested by the applicant had been taken ; however , he could not inform her of the results until the preliminary investigation was completed . The court dismissed the applicant \u2019s complaint and held , inter alia :","\u201c In accordance with [ LAW ] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation . Accordingly , [ the investigator \u2019s ] refusal to familiarise the victim with the materials of the case file was lawful . \u201d","The decision could be appealed against within DATE .","On DATE the applicant submitted an appeal together with an application to restore the time - limit for appeal as the decision had been served on her only on DATE .","On DATE the ORG refused the application to restore the time - limit for appeal on the ground that the applicant had been present at the hearing of DATE , where the decision had been read out .","On an unspecified date the decisions of DATE and DATE were quashed by ORG and the case remitted to ORG for a fresh examination . According to the Government , upon the fresh examination ORG dismissed the complaint . The decision was not appealed against .","On DATE , following an application lodged by the applicant , ORG of GPE declared Mr PERSON a missing person .","The Government submitted the following information concerning the progress of the investigation .","On DATE criminal investigation no . DATE was instituted into the abduction of Mr PERSON .","On DATE the investigator questioned as a witness Mr I. , deputy prosecutor of LOC . PERSON submitted that on DATE he had been on duty at ORG . At TIME he was informed by the head of the ORG that unknown persons who had tried to take Mr PERSON and PERSON through the checkpoint had been brought to the ROVD . They had presented themselves as ORG officers . PERSON had immediately informed Mr B. , another deputy prosecutor of LOC . PERSON had told him that the persons brought to the ROVD had with them all necessary documents . PERSON was questioned again on DATE .","On DATE , DATE and DATE the investigator also questioned relatives of Mr PERSON .","On DATE the applicant was granted the status of a victim in the criminal proceedings . She was questioned on CARDINAL DATE .","On DATE the investigator questioned PERSON , the head of the ORG . On DATE he questioned PERSON , an officer of ORG . On DATE the investigator questioned Bad . and PERSON . , the heads of ORG , and on DATE he questioned PERSON , an officer of ORG .","On DATE the investigator questioned as witnesses CARDINAL police officers of the special police unit of ORG .","On DATE the investigator questioned CARDINAL officers of the traffic police of ORG .","DATE . On DATE the prosecutor of military unit no . CARDINAL questioned the head of ORG of the ORG and on DATE his deputy .","On DATE the preliminary investigation was suspended on the ground that the person to be charged with the offence had not been identified .","On DATE the deputy prosecutor of the Sunzhenskiy District quashed the decision to suspend the investigation .","On DATE the investigation was resumed .","On CARDINAL DATE the preliminary investigation was suspended again on the ground that the person to be charged with the offence had not been identified .","On DATE the first deputy prosecutor of GPE quashed the decision to suspend the investigation and transmitted the case to ORG of LOC for additional investigation .","On DATE the investigator questioned as witnesses CARDINAL neighbours of Mr PERSON .","On DATE the investigator suspended the preliminary investigation again on the ground that the persons to be charged with the offence had not been identified .","On DATE the first deputy prosecutor of GPE quashed the decision to suspend the investigation .","According to the Government , in the course of the investigation requests for information were sent to ORG of GPE , prosecutor \u2019s offices and investigating authorities of other NORP regions , the military prosecutor of ORG , ORG for LOC , ORG , medical institutions , a mobile network operator , airline and railway ticket offices , civil registrars , and passport and visa services . The investigating authorities also checked the registers of unidentified dead bodies and temporary detention facilities . According to the information received , the persons who presented themselves as ORG officers during the documents check had never served in the ORG and the documents presented had never been issued to them by the ORG authorities . Neither ORG nor the ORG had conducted any operations in order to arrest PERSON and ORG of the ORG had neither instituted proceedings against PERSON and PERSON nor arrested them .","On DATE the investigation was suspended on the ground that the persons to be charged with the offence had not been identified . The applicant was notified accordingly .","On DATE the investigation was resumed . The applicant was notified of the resumption .","NORP Despite specific requests made by ORG on several occasions , the Government did not submit any documents from the file in criminal case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of the documents disclosing military information and the personal details of the witnesses , and without the right to make copies of the case file and transmit it to others .","On DATE the applicant submitted a letter to the ORG , in which she alleged that in DATE persons who claimed to belong to the ORG had offered her money via a relative of hers for the withdrawal of her application . She had also been personally contacted by a man claiming to be an officer of the ORG who had threatened her and offered money for the withdrawal of her application before the ORG .","After the application had been communicated to the Government , the applicant maintained the complaint concerning the events that had allegedly taken place in DATE . She made no new allegations .","The Government submitted that ORG agents had not hindered the applicant \u2019s right to petition ORG . Furthermore , the applicant had not applied to law - enforcement agencies in connection with the alleged threats and offers of money for the withdrawal of her application .","Article CARDINAL of the Code of Criminal Procedure provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .","Article CARDINAL of the Code of Criminal Procedure stipulates that evidence from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator , but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission"],"violated_articles":["13","2","38","5"],"violated_paragraphs":["2-1","5-1"],"violated_bulletpoints":[],"non_violated_articles":["13","3","34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57708","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1991,"docname":"CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (No. 2)","importance":2,"conclusion":"Violation of Art. 10;No violation of Art. 13 and 14+10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"C. Russo;N. Valticos;R. Pekkanen","text":["ORG The applicants in this case ( who are hereinafter together referred to as \" S.T. \" ) are ORG , the publisher of the GPE national DATE newspaper ORG , and Mr PERSON , its editor . They complain of interlocutory injunctions imposed by the NORP courts on the publication of details of the book Spycatcher and information obtained from its author , Mr PERSON .","ORG In litigation where the plaintiff seeks a permanent injunction against the defendant , the LANGUAGE courts have a discretion to grant the plaintiff an \" interlocutory injunction \" ( a temporary restriction pending the determination of the dispute at the substantive trial ) which is designed to protect his position in the interim . In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial .","The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in ORG v. Ethicon Ltd([CARDINAL ] Appeal Cases CARDINAL ) and may be summarised as follows .","( a ) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration .","( b ) ORG the material before the court at that stage fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction , the court should consider , in the light of the particular circumstances of the case , whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought .","( c ) ORG If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial , no interlocutory injunction should normally be granted . If , on the other hand , damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff \u2019s undertaking if the defendant were to succeed at the trial , there would be no reason to refuse an interlocutory injunction on this ground .","( d ) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises .","( e ) ORG Where other factors appear evenly balanced , it is a counsel of prudence to take such measures as are calculated to preserve the status quo .","ORG Mr PERSON was employed by ORG as a senior member of ORG ( MICARDINAL ) from DATE , when he resigned . Subsequently , without any authority from his former employers , he wrote his memoirs , entitled GPE , and made arrangements for their publication in GPE , where he was then living . The book dealt with the operational organisation , methods and personnel of MICARDINAL and also included an account of alleged illegal activities by ORG . He asserted therein , inter alia , that MICARDINAL conducted unlawful activities calculated to undermine the DATE ORG , burgled and \" bugged \" the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad , and that Sir PERSON , who led MICARDINAL during the latter part of Mr PERSON \u2019s employment , was a NORP agent .","PERSON had previously sought , unsuccessfully , to persuade ORG to institute an independent inquiry into these allegations . In DATE such an inquiry was also sought by , amongst others , a number of prominent members of the DATE ORG , but in vain .","ORG Part of the material in Spycatcher had already been published in a number of books about ORG written by PERSON . Moreover , in DATE PERSON had given a lengthy interview to ORG ( an independent television company operating in GPE ) about the work of the service and the programme was shown again in DATE . Other books and another television programme on the workings and secrets of the service were produced at about the same time , but little Government action was taken against the authors or the media .","ORG In DATE the Attorney General of GPE and GPE ( \" the Attorney General \" ) instituted , on behalf of ORG , proceedings in ORG , GPE , to restrain publication of ORG and of any information therein derived from PERSON work for ORG . The claim was based not on official secrecy but on the ground that the disclosure of such information by PERSON would constitute a breach of , notably , his duty of confidentiality under the terms of his employment . On DATE he and his publishers , ORG , gave undertakings , by which they abided , not to publish pending the hearing of the Government \u2019s claim for an injunction .","Throughout the NORP proceedings the ORG objected to the book as such ; they declined to indicate which passages they objected to as being detrimental to national security .","ORG Whilst the NORP proceedings were still pending , the GPE national DATE newspaper ORG and the GPE national DATE newspaper ORG published , on DATE respectively , short articles on inside pages reporting on the forthcoming hearing in GPE and giving details of some of the contents of the manuscript of Spycatcher . These CARDINAL newspapers had for some time been conducting a campaign for an independent investigation into the workings of ORG . The details given included the following allegations of improper , criminal and unconstitutional conduct on the part of MICARDINAL officers :","( a ) ORG MICARDINAL \" bugged \" all diplomatic conferences at ORG in GPE throughout DATE and DATE \u2019s , as well as the GPE independence negotiations in DATE ;","( b ) ORG MICARDINAL \" bugged \" diplomats from GPE , GPE , GPE and GPE , as well as Mr GPE \u2019s hotel suite during his visit to GPE in the DATE \u2019s , and was guilty of routine burglary and \" bugging \" ( including the entering of NORP consulates abroad ) ;","( c ) ORG MICARDINAL plotted unsuccessfully to assassinate President PERSON of GPE at the time of the LOC crisis ;","( d ) ORG MICARDINAL plotted against PERSON during his premiership from DATE ;","( e ) ORG MICARDINAL ( contrary to its guidelines ) diverted its resources to investigate left - wing political groups in GPE .","The Observer and ORG articles , which were written by Mr PERSON and Mr PERSON and by Mr PERSON - PERSON respectively , were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material . However , much of the actual information in the articles had already been published elsewhere ( see paragraph CARDINAL above ) . The LANGUAGE courts subsequently inferred that , on the balance of probabilities , the PERSON sources must have come from the offices of the publishers of ORG or the solicitors acting for them and the author ( see the judgment of DATE of Mr Justice PERSON ; paragraph CARDINAL below ) .","ORG The Attorney General instituted proceedings for breach of confidence in ORG of ORG and GPE against ORG , the proprietors and publishers of the Observer , Mr PERSON , its editor , and PERSON and PERSON , and against ORG , the proprietors and publishers of The ORG , Mr PERSON , its editor , and Mr ORG .","The Attorney General sought permanent injunctions against the defendants ( who are hereinafter together referred to as \" O.G. \" ) , restraining them from making any publication of Spycatcher material . He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant . It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose .","ORG The evidential basis for the Attorney General \u2019s claim was CARDINAL affidavits sworn by Sir PERSON , Secretary to ORG , in the NORP proceedings on CARDINAL and DATE . He had stated therein , inter alia , that the publication of any narrative based on information available to PERSON as a member of ORG would cause unquantifiable damage , both to the service itself and to its officers and other persons identified , by reason of the disclosures involved . It would also undermine the confidence that friendly countries and other organisations and persons had in ORG and create a risk of other employees or former employees of that service seeking to publish similar information .","ORG On DATE ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions . On an application by PERSON and after an inter partes hearing on DATE , Mr Justice PERSON ( sitting in ORG ) decided that these injunctions should remain in force , but with various modifications . The defendants were given liberty to apply to vary or discharge the orders on giving CARDINAL hours\u2019 notice .","ORG The reasons for Mr Justice PERSON \u2019s decision may be briefly summarised as follows .","( a ) ORG by PERSON of information acquired as a member of ORG would constitute a breach of his duty of confidentiality .","( b ) ORG wished to be free to publish further information deriving directly or indirectly from PERSON and disclosing alleged unlawful activity on the part of ORG , whether or not it had been previously published .","( c ) ORG Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute .","( d ) ORG In resolving , as in the present case , a conflict between the public interest in preventing and the public interest in allowing such disclosure , the court had to take into account all relevant considerations , including the facts that this was an interlocutory application and not the trial of the action , that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights . In such circumstances , the conflict should be resolved in favour of restraint , unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial : an example would be when the proposed publication related to unlawful acts , the disclosure of which was required in the public interest . This could be regarded either as an exception to the NORP ORG principles ( see paragraph CARDINAL above ) or their application in special circumstances where the public interest was invoked on both sides .","( e ) ORG The Attorney General \u2019s principal objection was not to the dissemination of allegations about ORG but to the fact that those allegations were made by CARDINAL of its former employees , it being that particular fact which PERSON wished to publish . There was credible evidence ( in the shape of Sir PERSON affidavits ; see paragraph CARDINAL above ) that the appearance of confidentiality was essential to the operation of ORG and that the efficient discharge of its duties would be impaired , with consequent danger to national security , if senior officers were known to be free to disclose what they had learned whilst employed by it . Although this evidence remained to be tested at the substantive trial , the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial . Bearing in mind , inter alia , that the alleged unlawful activities had occurred some time in the past , there was , moreover , no compelling interest requiring publication immediately rather than after the trial .","In the subsequent stages of the interlocutory proceedings , both ORG ( see paragraphs DATE below ) and all the members of ORG ( see paragraphs CARDINAL below ) considered that this initial grant of interim injunctions by Mr Justice PERSON was justified .","ORG On DATE ORG dismissed an appeal by PERSON and upheld the injunctions , with minor modifications . It referred to the NORP ORG principles ( see paragraph CARDINAL above ) and considered that Mr Justice PERSON had not misdirected himself or exercised his discretion on an erroneous basis . It refused leave to appeal to ORG . It also certified the case as fit for a speedy trial .","As amended by ORG , the injunctions ( \" the PERSON injunctions \" ) restrained PERSON , until the trial of the action or further order , from :","\" CARDINAL . ORG disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by PERSON in his capacity as a member of ORG and which they know , or have reasonable grounds to believe , to have come or been obtained , whether directly or indirectly , from the said PERSON ;","ORG attributing in any disclosure or publication made by them to any person any information concerning ORG to the said PERSON whether by name or otherwise . \"","The orders contained the following provisos :","\" CARDINAL . ORG this Order shall not prohibit direct quotation of attributions to PERSON already made by Mr PERSON in published works , or in a television programme or programmes broadcast by ORG ;","ORG no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in ORG unless prohibited by the Judge there sitting or which , after the trial there in action no . CARDINAL of DATE , is not prohibited from publication ;","ORG no breach of this Order shall be constituted by a fair and accurate report of proceedings in ( a ) either ORG in the GPE whose publication is permitted by that ORG ; or ( b ) a court of the GPE sitting in public . \"","ORG On DATE ORG granted leave to appeal against ORG decision . The appeal was subsequently withdrawn in the light of ORG decision of CARDINAL DATE ( see paragraphs DATE below ) .","ORG The trial of the Government \u2019s action in GPE ( see paragraph CARDINAL above ) took place in DATE . The proceedings were reported in detail in the media in GPE and elsewhere . In a judgment delivered on CARDINAL DATE Mr Justice PERSON rejected the Attorney General \u2019s claim against Mr PERSON and his publishers , holding that much of the information in GPE was no longer confidential and that publication of the remainder would not be detrimental to ORG or ORG . The undertakings not to publish were then discharged by order of the court .","The Attorney General lodged an appeal ; after a hearing in ORG in DATE , judgment was reserved . The defendants had given further undertakings not to publish whilst the appeal was pending .","ORG On DATE a major summary of certain of the allegations in Spycatcher , allegedly based on a copy of the manuscript , appeared in the GPE national DATE newspaper ORG . DATE reports of that summary were published in ORG and ORG .","On DATE the Attorney General applied to ORG of ORG for leave to move against the publishers and editors of these CARDINAL newspapers for contempt of court that is conduct intended to interfere with or prejudice the administration of justice . Leave was granted on DATE . In this application ( hereinafter referred to as \" the Independent case \" ) the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government , but independently and in his capacity as \" the guardian of the public interest in the due administration of justice \" .","Reports similar to those of DATE appeared on DATE in GPE , in ORG and ORG , and on DATE in GPE , in ORG .","ORG On DATE O.G. applied for the discharge of the PERSON injunctions ( see paragraph CARDINAL above ) on the ground that there had been a significant change of circumstances since they were granted . They referred to what had transpired in the NORP proceedings and to the GPE newspaper reports of DATE .","The Vice - Chancellor , Sir PERSON , began to hear these applications on DATE but adjourned them pending the determination of a preliminary issue of law , raised in the Independent case ( see paragraph CARDINAL above ) , on which he thought their outcome to be largely dependent , namely \" whether a publication made in the knowledge of an outstanding injunction against another party , and which if made by that other party would be in breach thereof , constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction \" . On DATE , in response to the Vice - Chancellor \u2019s invitation , the Attorney General pursued the proceedings in the Independent case in ORG of ORG and the Vice - Chancellor ordered the trial of the preliminary issue .","ORG On DATE PERSON , which had purchased from Mr PERSON \u2019s NORP publishers the GPE publication rights to Spycatcher , announced its intention of publishing the book in the latter country .","ORG On DATE the Vice - Chancellor decided the preliminary issue of law in the Independent case . He held that the reports that had appeared on DATE ( see paragraph CARDINAL above ) could not , as a matter of law , amount to contempt of court because they were not in breach of the express terms of the PERSON injunctions and the CARDINAL newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined . The Attorney General appealed .","ORG On DATE O.G. , relying on the intended publication in GPE , applied to have the hearing of their application for discharge of the PERSON injunctions restored ( see paragraph CARDINAL above ) . The matter was , however , adjourned pending the outcome of the Attorney General \u2019s appeal in the Independent case , the hearing of which began on DATE .","ORG On DATE ORG , which had purchased the NORP newspaper serialisation rights from Mr PERSON \u2019s NORP publishers and obtained a copy of the manuscript from ORG in GPE , printed \u2013 in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher . It explained that this was timed to coincide with publication of the book in GPE , which was due to take place on DATE .","On DATE the Attorney General commenced proceedings against ORG for contempt of court , on the ground that the publication frustrated the purpose of the PERSON injunctions .","ORG On DATE ORG published FAC in GPE ; some copies had , in fact , been put on sale on DATE . It was an immediate best - seller . ORG , which had been advised that proceedings to restrain publication in GPE would not succeed , took no legal action to that end either in that country or in GPE , where the book also became a best - seller .","ORG A substantial number of copies of the book were then brought into GPE , notably by NORP citizens who had bought it whilst visiting GPE or who had purchased it by telephone or post from NORP bookshops . The telephone number and address of such bookshops willing to deliver the book to GPE were widely advertised in that country . No steps to prevent such imports were taken by ORG , which formed the view that although a ban was within their powers , it was likely to be ineffective . They did , however , take steps to prevent the book \u2019s being available at GPE booksellers or public libraries .","ORG On DATE ORG announced that it would reverse the judgment of the Vice - Chancellor in the Independent case ( see paragraph CARDINAL above ) . Its reasons , which were handed down on DATE , were basically as follows : the purpose of the PERSON injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against PERSON ; the conduct of ORG , The London Evening Standard and ORG could , as a matter of law , constitute a criminal contempt of court because publication of that material would destroy that confidentiality and , hence , the subject - matter of those actions and therefore interfere with the administration of justice . ORG remitted the case to ORG for it to determine whether the CARDINAL newspapers had acted with the specific intent of so interfering ( sections CARDINAL(CARDINAL ) and CARDINAL ) of ORG ) .","ORG refused the defendants leave to appeal to ORG and they did not seek leave to appeal from the ORG itself . Neither did they apply to ORG for modification of the PERSON injunctions . The result of ORG decision was that those injunctions were effectively binding on all the NORP media , including ORG .","S.T. made it clear that , unless restrained by law , they would publish the second instalment of the serialisation of Spycatcher on DATE . On DATE the Attorney General applied for an injunction to restrain them from publishing further extracts , maintaining that this would constitute a contempt of court by reason of the combined effect of the PERSON injunctions and the decision in the NORP case ( see paragraph CARDINAL above ) .","On DATE the Vice - Chancellor granted a temporary injunction restraining publication by ORG until DATE . It was agreed that on DATE he would consider the application by PERSON for discharge of the PERSON injunctions ( see paragraph CARDINAL above ) and that , since they effectively bound PERSON as well , the latter would have a right to be heard in support of that application . It was further agreed that he would also hear the Attorney General \u2019s claim for an injunction against ORG and that that claim would fail if the PERSON injunctions were discharged .","ORG Having heard argument from CARDINAL to CARDINAL DATE , the Vice - Chancellor gave judgment on the last - mentioned date , discharging the PERSON injunctions and dismissing the claim for an injunction against ORG","The Vice - Chancellor \u2019s reasons may be briefly summarised as follows .","( a ) ORG There had , notably in view of the publication in GPE ( see paragraphs CARDINAL above ) , been a radical change of circumstances , and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances .","( b ) ORG Having regard to the case - law and notwithstanding the changed circumstances , it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against PERSON at the substantive trial ; accordingly , the ordinary NORP ORG principles ( see paragraph CARDINAL above ) fell to be applied .","( c ) ORG Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers , it had to be determined where the balance of convenience lay ; the preservation of confidentiality should be favoured unless another public interest outweighed it .","( d ) ORG in favour of continuing the injunctions were : the proceedings were only interlocutory ; there was nothing new or urgent about Mr PERSON \u2019s allegations ; the injunctions would bind all the media , so that there would be no question of discrimination ; undertakings not to publish were still in force in GPE ; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality ; to continue the injunctions would discourage others from following Mr PERSON \u2019s example .","( e ) ORG in favour of discharging the injunctions were : publication in GPE had destroyed a large part of the purpose of the Attorney General \u2019s actions ; publications in the press , especially those concerning allegations of unlawful conduct in the public service , should not be restrained unless this was unavoidable ; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose .","( f ) ORG The matter was quite nicely weighted and in no sense obvious but , with hesitation , the balance fell in favour of discharging the injunctions .","The Attorney General immediately appealed against the Vice - Chancellor \u2019s decision ; pending the appeal the injunctions against PERSON , but not the injunction against ORG ( see paragraph CARDINAL above ) , were continued in force .","ORG In a judgment of CARDINAL DATE ORG held that :","( a ) ORG the Vice - Chancellor had erred in law in various respects , so that ORG could exercise its own discretion ;","( b ) ORG in the light of the NORP publication of Spycatcher , it was inappropriate to continue the PERSON injunctions in their original form ;","( c ) ORG it was , however , appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to PERSON on security matters , but to permit \" a summary in very general terms \" of his allegations .","The members of ORG considered that continuation of the injunctions would : serve to restore confidence in ORG by showing that memoirs could not be published without authority ( Sir PERSON , Master of the Rolls ) ; serve to protect the Attorney General \u2019s rights until the trial ( Lord Justice PERSON ) ; or fulfil the courts\u2019 duty of deterring the dissemination of material written in breach of confidence ( Lord Justice PERSON ) .","ORG gave leave to all parties to appeal to ORG .","ORG After hearing argument from CARDINAL to CARDINAL DATE ( when neither side supported ORG compromise solution ) , ORG gave judgment on DATE , holding , by a majority of CARDINAL ( Lord PERSON of ORG , Lord Templeman and Lord PERSON ) to CARDINAL ( Lord Bridge of GPE - the immediate past Chairman of ORG - and Lord PERSON of GPE ) , that the PERSON injunctions should continue . In fact , they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on CARDINAL DATE ( see paragraph DATE below ) .","The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the NORP proceedings ( see paragraph CARDINAL above ) , since the injunctions would be circumvented if LANGUAGE newspapers were to reproduce passages from Spycatcher read out in open court . In the events that happened , this deletion had , according to the Government , no practical incidence on the reporting of the NORP proceedings .","ORG The members of ORG gave their written reasons on CARDINAL DATE ; they may be briefly summarised as follows .","( a ) Lord PERSON of ORG","( i ) The object of the Attorney General \u2019s actions against PERSON was the protection of an important public interest , namely the maintenance as far as possible of the secrecy of ORG ; as was recognised in Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , the right to freedom of expression was subject to certain exceptions , including the protection of national security .","( ii ) The injunctions in issue were only temporary , being designed to hold the ring until the trial , and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions .","( iii ) The view taken in the courts below , before the NORP publication , that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge .","( iv ) Publication in GPE had weakened that case , but it remained arguable ; it was not clear whether , as a matter of law , that publication had caused the newspapers\u2019 duty of non - disclosure to lapse . Although the major part of the potential damage adverted to by Sir PERSON ( see paragraph CARDINAL above ) had already been done , the courts might still be able to take useful steps to reduce the risk of similar damage by other ORG employees in the future . This risk was so serious that the courts should do all they could to minimise it .","( v ) The only way to determine the Attorney General \u2019s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross - examination .","( vi ) Immediate discharge of the injunctions would completely destroy the Attorney General \u2019s arguable case at the interlocutory stage , without his having had the opportunity of having it tried on appropriate evidence .","( vii ) Continuing the injunctions until the trial would , if the Attorney General \u2019s claims then failed , merely delay but not prevent the newspapers\u2019 right to publish information which , moreover , related to events that had taken place DATE in the past .","( viii ) In the overall interests of justice , a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to CARDINAL which might result in permanent and irrevocable damage to the cause of the Attorney General .","( b ) Lord Templeman ( who agreed with the observations of Lords PERSON and PERSON )","( i ) The appeal involved a conflict between the right of the public to be protected by ORG and its right to be supplied with full information by the press . It therefore involved consideration of the LAW , the question being whether the interference constituted by the injunctions was , on DATE , necessary in a NORP society for one or more of the purposes listed in DATE . CARDINAL ( article CARDINAL ) .","( ii ) In terms of the LAW , the restraints were necessary in the interests of national security , for protecting the reputation or rights of others , for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary . The restraints would prevent harm to ORG , notably in the form of the mass circulation , both now and in the future , of accusations to which its members could not respond . To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the ORG .","( c ) Lord PERSON ( who agreed with the observations of Lord PERSON )","( i ) It was accepted by all members of ORG that : the Attorney General had an arguable case for a permanent injunction ; damages were a worthless remedy for the ORG which , if the PERSON injunctions were not continued , would lose forever the prospect of obtaining permanent injunctions at the trial ; continuation of the PERSON injunctions was not a \" final locking - out \" of the press which , if successful at the trial , would then be able to publish material that had no present urgency ; there was a real public interest , that required protection , concerned with the efficient functioning of ORG and it extended , as was not challenged by the newspapers , to discouraging the use of the GPE market for the dissemination of unauthorised memoirs of ORG officers .","( ii ) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial , for that would sweep aside the public - interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts .","( d ) Lord Bridge of GPE","( i ) The case in favour of maintaining the PERSON injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now ; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out .","( ii ) Since the Spycatcher allegations were now freely available to the public , it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information .","( iii ) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers , but the question was whether the PERSON injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech . The argument that their continuation would have a deterrent effect was of minimal weight .","( iv ) The attempt to insulate the NORP public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and , if pursued , would lead to the ORG \u2019s condemnation and humiliation by ORG .","( e ) Lord PERSON of GPE","( i ) Mr Justice PERSON \u2019s initial order was entirely correct .","( ii ) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations , but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher . It was questionable whether it was right to use the injunctive remedy against the newspapers ( who had not been concerned with that publication ) for the remaining purpose which the injunctions might serve , namely punishing PERSON and providing an example to others .","( iii ) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial . However , in the light of the public availability of the Spycatcher material , it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime . No arguable case for permanent injunctions at the trial therefore remained and the PERSON injunctions should accordingly be discharged .","ORG On DATE ORG of Appeal delivered judgment dismissing the Attorney General \u2019s appeal ( see paragraph CARDINAL above ) ; the majority held that his claim was not justiciable in an NORP court since it involved either an attempt to enforce indirectly the public laws of a foreign ORG or a determination of the question whether publication would be detrimental to the public interest in GPE .","The Attorney General appealed to ORG of GPE . In view of the publication of ORG in GPE and elsewhere , that court declined to grant temporary injunctions restraining its publication in GPE pending the hearing ; it was published in that country on DATE . The appeal was dismissed on DATE , on the ground that , under international law , a claim - such as the Attorney General \u2019s - to enforce NORP governmental interests in its security service was unenforceable in the NORP courts .","Further proceedings brought by the Attorney General against newspapers for injunctions were successful in GPE but not in GPE .","ORG In the meantime publication and dissemination of Spycatcher and its contents continued worldwide , not only in GPE ( CARDINAL copies were printed and nearly all were sold by DATE ) and in GPE ( CARDINAL copies printed ) , but also in GPE ( CARDINAL copies printed , of which CARDINAL were sold within DATE ) and GPE ( CARDINAL copies printed and distributed ) . CARDINAL copies were sent to various NORP countries other than GPE and copies were distributed from GPE in NORP countries . Radio broadcasts in LANGUAGE about the book were made in GPE and GPE and it was translated into CARDINAL other languages , including CARDINAL NORP .","ORG On DATE the Attorney General instituted proceedings against ORG for breach of confidence ; in addition to injunctive relief , he sought a declaration and an account of profits . The substantive trial of that action and of his actions against PERSON ( see paragraph CARDINAL above ) - in which , by an amendment of DATE , he now claimed a declaration as well as an injunction - took place before Mr Justice PERSON in ORG in DATE . He heard evidence on behalf of all parties , the witnesses including Sir PERSON ( see paragraph CARDINAL above ) . He also continued the interlocutory injunctions , pending delivery of his judgment .","ORG Mr Justice PERSON gave judgment on DATE ; it contained the following observations and conclusions .","( a ) ORG The ground for the Attorney General \u2019s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of ORG .","( b ) ORG Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential , the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure .","( c ) ORG Account should be taken of LAW ) of the LAW and the judgments of ORG establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a \" pressing social need \" for the limitation and it was \" proportionate to the legitimate aims pursued \" .","( d ) Mr PERSON owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MICARDINAL . He broke that duty by writing PERSON and submitting it for publication , and the subsequent publication and dissemination of the book amounted to a further breach , so that the Attorney General would be entitled to an injunction against PERSON or any agent of his , restraining publication of ORG in GPE .","( e ) ORG O.G. were not in breach of their duty of confidentiality , created by being recipients of PERSON unauthorised disclosures , in publishing their respective articles of CARDINAL and DATE ( see paragraph CARDINAL above ) : the articles were a fair report in general terms of the forthcoming trial in GPE and , furthermore , disclosure of CARDINAL of PERSON allegations was justified on an additional ground relating to the disclosure of \" iniquity \" .","( f ) ORG , on the other hand , had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on CARDINAL DATE ( see paragraph CARDINAL above ) , since those extracts contained certain material which did not raise questions of public interest outweighing those of national security .","( g ) ORG were liable to account for the profits accruing to them as a result of the publication of that instalment .","( h ) ORG The Attorney General \u2019s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since DATE had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book ; as regards this issue , a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming .","( i ) ORG The Attorney General was not entitled to a general injunction restraining future publication of information derived from Mr PERSON or other members of ORG .","After hearing argument , Mr Justice PERSON imposed fresh temporary injunctions pending an appeal to ORG ; those injunctions contained a proviso allowing reporting of the NORP proceedings ( see paragraphs CARDINAL above ) .","ORG On appeal by the Attorney General and a cross - appeal by ORG , ORG ( composed of Sir PERSON , Master of the Rolls , Lord Justice PERSON and Lord Justice PERSON ) affirmed , on DATE , the decision of Mr Justice PERSON .","However , Sir PERSON disagreed with his view that the articles in the Observer and The ORG had not constituted a breach of their duty of confidence and that the claim for an injunction against these CARDINAL newspapers in DATE was not \" proportionate to the legitimate aim pursued \" . Lord Justice PERSON , on the other hand , disagreed with PERSON Justice PERSON \u2019s view that ORG had been in breach of duty by publishing the first instalment of extracts from Spycatcher , that they should account for profits and that the Attorney General had been entitled , in the circumstances as they stood in DATE , to injunctions preventing further serialisation .","After hearing argument , ORG likewise granted fresh temporary injunctions pending an appeal to ORG ; PERSON and ORG were given liberty to apply for variation or discharge if any undue delay arose .","ORG On DATE ORG ( Lord PERSON of GPE , Lord PERSON , Lord PERSON , Lord PERSON of Chieveley and Lord GPE of GPE ) also affirmed Mr Justice PERSON \u2019s decision . Dismissing an appeal by the Attorney General and a cross - appeal by ORG , it held :","\" ( i ) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others ; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information ; that in seeking to restrain the disclosure of government secrets the ORG must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted ; that since the world - wide publication of ORG had destroyed any secrecy as to its contents , and copies of it were readily available to any individual who wished to obtain them , continuation of the injunctions was not necessary ; and that , accordingly , the injunctions should be discharged .","( ii ) ( Lord PERSON dissenting ) that the articles of DATE and DATE ] had not contained information damaging to the public interest ; that the Observer and The ORG were not in breach of their duty of confidentiality when they published [ those ] articles ; and that , accordingly , the ORG would not have been entitled to a permanent injunction against both newspapers .","( iii ) That ORG was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on DATE ; that it was not protected by either the defence of prior publication or disclosure of iniquity ; that imminent publication of the book in GPE did not amount to a justification ; and that , accordingly , ORG was liable to account for the profits resulting from that breach .","( iv ) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done ; that no injunction should be granted against the Observer and The ORG restraining them from reporting on the contents of the book ; and that ( Lord PERSON dissenting ) no injunction should be granted against ORG to restrain serialising of further extracts from the book .","( v ) ORG That members and former members of ORG owed a lifelong duty of confidence to the ORG , and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in GPE derived from any member or former member of ORG . \"","ORG The substantive trial of the Attorney General \u2019s actions for contempt of court against ORG , The London Evening Standard , ORG ( see paragraph CARDINAL above ) , PERSON ( see paragraph CARDINAL above ) and certain other newspapers took place before Mr Justice PERSON in ORG in DATE . On DATE he held , inter alia , that ORG had been in contempt of court and imposed a fine of \u00a3 MONEY in each case .","ORG On DATE ORG dismissed appeals by the latter CARDINAL newspapers against the finding that they had been in contempt but concluded that no fines should be imposed . A further appeal by ORG against the contempt finding was dismissed by ORG on DATE ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69131","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2005,"docname":"CASE OF J.S. AND A.S. v. POLAND","importance":3,"conclusion":"Preliminary objection joined to merits (Art. 6-1 inapplicable);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicants , Mr PERSON and FAC are a married couple residing in GPE .","By way of an administrative decision of CARDINAL DATE a property owned by the second applicant \u2019s father PERSON and located in NORP was expropriated pursuant to provisions of the DATE ORG . It was stated in the decision that GPE was the owner of this property .","On DATE this decision was upheld by the Minister of Agriculture , who considered that the factual findings of the expropriation commission as to the area of the property concerned could not be called into question given that the commission was composed not only of agents of the administration , but also of political representatives .","By an on - site protocol of CARDINAL DATE a commission , established under the provisions of the DATE ORG , inspected the property and found that land situated in NORP owned by the second applicant \u2019s father PERSON consisted of QUANTITY of land , out of which QUANTITY constituted arable land .","On DATE the applicants lodged with ORG an application to have the expropriation decision declared null and void under LAW or amended under LAW .","On DATE the applicants complained to ORG about the failure of the administration to rule on their DATE application .","On DATE the applicants submitted further pleadings to that court , indicating that certain relevant documents had been found in ORG which showed that the on - site commission had wrongly calculated the surface of the property concerned in DATE . The area of the property was in fact , in the light of the newly found documents , QUANTITY of arable land . Thus , the property should not have been subject to expropriation within the framework of the agrarian reform law as it did not attain the minimum threshold of QUANTITY of arable land . The applicants further referred to an official protocol drawn up in DATE , which confirmed this finding .","By a judgment of CARDINAL DATE ORG ordered the Minister of Agriculture to issue a decision concerning the applicants\u2019 application of DATE within DATE from the date of the judgment .","By a letter of CARDINAL DATE the applicants informed ORG that the property in question had had a surface of QUANTITY , as shown by the protocol of CARDINAL DATE and by another document drawn up by land surveyor ORG in DATE .","On DATE ORG obliged ORG to take further evidence in order to establish the legal status of the property concerned under the provisions of civil law , i.e. to determine who had been the owner of the property concerned at the time of expropriation .","The applicants objected thereto by a letter of CARDINAL DATE , pointing out that the question who had been the owner of the property in DATE in terms of substantive civil law was entirely extraneous to the administrative case which was pending before ORG . Any issues concerning the assessment of the link between the former owner of the property and the applicants from the angle of substantive civil law on inheritance was irrelevant for the administrative case , which concerned only the examination of the lawfulness of the administrative decision on expropriation . They insisted that a decision on their restitution claim be given in accordance with the judgment of ORG of DATE , which had set a DATE time limit for the authorities to do so .","They reiterated their submissions in a letter of CARDINAL DATE . On DATE the applicants again requested that a decision be given . On DATE the applicants reiterated their request that the decision on the merits of the case be given and complained that the proceedings had remained pending for a long time . They referred again to ORG judgment of DATE .","By a decision of DATE the ORG stayed the proceedings on the ground that a certain GPE had submitted a request to quash the expropriation decision . She had argued that the second applicant \u2019s father PERSON was not its owner , but only its lessee . She contended that it was her father GPE , who owned the property concerned . However , she had failed to submit conclusive documents to prove it . The proceedings were therefore stayed pursuant to LAW until relevant documents had been submitted .","The applicants appealed against the decision to stay the proceedings . They reiterated their request that a decision be given and emphasised that they had remained pending since DATE . They argued that the decision to stay the proceedings had been taken in disregard of the essential substantive law elements of the case . The documents required by ORG and relating to the civil law status of the property at the time of expropriation were entirely irrelevant to the administrative case .","By a letter of CARDINAL DATE the applicants reiterated their arguments . The proceedings remain stayed . The applicants submit that all their efforts to have them resumed have been unsuccessful .","NORP Under NORP law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected within the framework of the agrarian reform . Therefore no specific legal framework is available , enacted with the purpose of mitigating the effects of certain infringements of property rights .","NORP However , it is open to persons whose property was expropriated or their legal successors , to institute , under LAW , administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law . In particular , a final administrative decision can be declared null and void at any time if it was issued without a legal basis , or in flagrant violation of law .","Decisions flawed as a result of lesser procedural shortcomings , listed under items CARDINAL , CARDINAL , DATE and CARDINAL of Article CARDINAL , such as those given by an authority which lacked competence to issue a decision in a given case , or in a case which had already been decided or addressed to a person not being a party to the proceedings , can only be declared null and void if DATE have elapsed from the date on which such decisions were given . In respect of such decisions it is only possible to declare that they were issued contrary to law ; the decisions themselves remain valid .","If the flaw that taints the challenged decision is of a substantive character , i.e. if the decision had been given without a legal basis or in flagrant violation of law , the administrative authority shall declare it null and void .","A decision to declare the old decision null and void , or a refusal to do so , may ultimately be appealed to ORG .","DATE LAW provides that \u201c the agrarian reform in GPE is a ORG and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of ORG \u201d .","LAW , in so far as relevant , reads :","\u201c The following agricultural estates shall be designated for the purposes of the agrarian reform : ...","e ) being a property or a co - property of natural persons or legal entities , if the entire area of the estate exceeds either QUANTITY in total , or QUANTITY of arable land ...","All real estate , referred to in items ... , e ) above shall , with no delay and without compensation , be taken over by the ORG . \u201c","Under LAW , the administration is obliged to deal with cases without undue delay . Simple cases should be dealt without any delay . In cases requiring some enquiry a first - instance decision should be given in DATE . In particularly complex cases decisions shall be taken within DATE .","If the decision has not been given within those time limits , a complaint under LAW may be filed with the higher - instance authority , which shall fix an additional time limit , establish the persons responsible for the failure to deal with the case within the time - limits , and , if need be , arrange for preventive measures to be adopted in order to prevent further delays .","NORP In DATE ORG was adopted , which entered into force on DATE . It created further procedures in which a complaint about the administration \u2019s failure to act could be raised .","Under LAW , that court is competent to examine complaints about the administration \u2019s inactivity in administrative proceedings in cases referred to in LAW .","Pursuant to LAW , if a complaint about the inactivity of an administrative authority is well - founded , the court shall oblige the competent authority to give a decision , or to carry out the factual act , or to confer or acknowledge an individual entitlement , right or obligation .","On DATE the Law on Administrative Courts came into force , which replaced LAW and established a CARDINAL - tiered system of appeals against administrative decisions to administrative courts ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112206","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2012,"docname":"CASE OF M.D. AND OTHERS v. MALTA","importance":2,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award","judges":"David Scicluna;David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The first applicant , PERSON , is the mother of CARDINAL minor children , the second and third applicants , PERSON and GPE","Following reports to ORG ( which forms part of ORG and has as its aim the enhancement of the lives of people in need , through the provision and availability of professional care and support ) , an investigation by specialised social workers was undertaken in respect of the family . Meetings took place between the parents , social workers , professionals ( doctors , police and lawyers ) and the directors of the relevant agency . Finally , on the recommendation of ORG , on DATE the Social Policy Minister issued a care order under LAW ( \u201c the LAW \u201d ) placing the CARDINAL minors , GPE and GPE , in an institution run by nuns . By a decision of CARDINAL DATE , after having heard the first applicant \u2019s objections , ORG confirmed the care order . It further solicited the social services to complete the fostering assessment of the maternal grandparents to enable the children to reside with them if it was found to be in their best interest .","At the same time , criminal proceedings were brought against the first applicant and her partner , X. , who is the alleged father of the minor children .","By a judgment of DATE ORG as a court of criminal judicature found X. guilty of cruelty towards the CARDINAL children and failure to protect them , causing them slight injuries , and of excessive correction of the CARDINAL minors ( DATE ) . X. was sentenced to DATE imprisonment . His appeal having been withdrawn , the judgment became final .","By the same judgment , PERSON was found guilty of cruelty towards the CARDINAL children and failure to protect them , and excessive correction of the CARDINAL minors ( DATE ) . She was sentenced to DATE imprisonment , suspended for DATE . PERSON appealed .","By a judgment of CARDINAL DATE ORG upheld the first - instance judgment . Having assessed the evidence the court found that PERSON had been present when X. repeatedly beat the children , aged DATE , and , possibly because of his threats , had not had the courage to report him or ask the relevant authorities for assistance , with the result that the children were severely bruised . They also suffered from bald patches and lice - infested hair , symptoms of serious neglect on the part of the mother . She had also repeatedly behaved roughly towards her children . She was therefore guilty of the first charge by acts of commission and omission ( in so far as she had not taken the requisite steps to protect her children ) . The court also confirmed her guilt regarding the charge of excessive correction of the CARDINAL minors . Considering it appropriate , in the event that the children were ever returned to her , the court confirmed the sentence handed down by the first - instance court .","NORP Under NORP law the provisions of LAW were applicable to a conviction for an offence under LAW ( see \u201c Relevant domestic law \u201d below ) .","At the start of the criminal proceedings the relationship between GPE and X. ended . While the care order was in place , PERSON was given supervised contact with her children for TIME a week and eventually TIME a week . Later , in DATE , the children spent DATE and public holidays with her .","Attempts to persuade the Minister to revoke the care order failed .","On DATE the first applicant , in her own name and on behalf of her children , instituted constitutional redress proceedings . She relied on Articles CARDINAL \u00a7 CARDINAL , CARDINAL and CARDINAL of the LAW , particularly on the basis that there existed no remedy under the LAW providing for re - examination by an independent and impartial tribunal of an issued care order , since such a revision depended solely on the discretion of the Minister who had issued the order . The circumstances having changed , she requested the court to revoke the order and grant any other necessary remedy .","On DATE , ORG ( FAC ) rejected a plea of non - exhaustion of ordinary remedies by the ORG ( namely , in reference to that provided in ORG CARDINAL ) since no proof had been submitted in corroboration at that early stage of the proceedings . It therefore decided to examine the case .","By a judgment of DATE ORG ( FAC ) held that PERSON could only act in her own name , and did not have a right to act on behalf of her minor children . Indeed , according to LAW , when a care order was issued the relevant parent was deprived of the right to represent his or her children or to sue on their behalf , and care and custody of the children concerned were entrusted to the Minister . It noted that in the proceedings nobody had requested the court to provide the children with a representative ad litem ( LAW ) .","In respect of PERSON , the court found a violation of Articles CARDINAL and CARDINAL of the Convention in that the law did not provide access to court to challenge the care order , but no violation of Article CARDINAL . It observed that the care order issued was a permanent one ( valid until the minors reached DATE ) . The Act provided for an objection to the care order to be lodged within DATE of the order being issued , and that such an objection would be dealt with by ORG . However , the applicant complained that it was not possible for an individual to request a revision of the order subsequently . The court considered that termination of custody fell under the concept of civil rights , particularly because a care order did not imply the end of natural ties between children and their parents . Consequently , a parent \u2019s right of access to court and to the possibility to regain custody of his or her children was a living right . The court considered that the remedy relied on by the ORG , namely judicial review proceedings , would not be appropriate in the circumstances . Judicial review was concerned with assessing the decision - making process , but not the merits of a decision itself , as the court would not act as a court of appeal from the body involved . In the event that an administrative decision was quashed the court could only remit the case to the authority for reconsideration , at most requesting the authority to bear in mind the reasons for the quashing . Moreover , ORG ( LAW ) was simply an advisory board subject to the authority and discretion of the Minister . Therefore , it could not be considered an impartial and independent tribunal . It followed , from an analysis of LANGUAGE law , that there was no remedy granting access to court for the applicant or anyone in her position seeking re - examination of the merits of a care order . This constituted a violation of LAW , which absorbed LAW .","Under LAW it held that the care order had been in accordance with the law and pursued a legitimate aim . While bearing in mind that PERSON had made improvements and was changing her life , it considered that the grounds on which the care order was based had not disappeared and in view of the frequent reviews of the situation by the social services it could not be said that her rights under LAW had been breached .","The court rejected the claim for the revocation of the care order but , in accordance with LAW , it ordered that a copy of the judgment be sent to the Speaker of ORG for consideration by parliament in respect of a possible amendment to the law , as the only remedy that could provide redress to the applicant was a legislative change providing for access to court in such a situation .","Both parties appealed .","By a judgment of CARDINAL DATE ORG observed that on DATE when the care order was issued PERSON had lost care and custody of her children in favour of the Minister , and therefore it confirmed that in the absence of an appointment by the court , PERSON could not represent her children in the proceedings . Moreover , following her conviction , PERSON had lost all authority and rights over her children in view of the automatic application of LAW and therefore , in the absence of any request to the court for representation of the minors , she could not act on their behalf according to LANGUAGE law ( see \u201c Relevant domestic law \u201d below ) , notwithstanding any different procedure which might be applicable before ORG . In this light , in relation to the merits of the complaints under LAW , the court considered that in the present case , PERSON having lost all her parental rights as a result of her conviction , could not exercise any right in respect of which she was deprived of access to court . It followed therefore that no violation of DATE could ensue . The situation would have been different had the applicant been affected only by the care order ( which solely took away the rights relating to care and custody ) and not the subsequent conviction . Neither could it be said that any rights under LAW came into play , since the applicant had regular contact with her children . However , the first - instance judgment in relation to whether the LAW contravened the applicant \u2019s LAW had become final , as no appeal had been lodged in this connection .","The relevant articles of ORG , LAW of LAW , read as follows :","Article CARDINAL","\u201c ( CARDINAL ) If , on representations made to him in writing by the Director of the ORG responsible for social welfare and after giving the parents and the guardian , if any , of the child or young person an opportunity to express their views , and after hearing any other person he may deem likely to assist him , the Minister is satisfied that that child or young person is in need of care , protection or control , it shall be the duty of the Minister by an order in writing under his hand to take such child or young person into his care .","( CARDINAL ) A copy of any order made by the Minister under subarticle ( CARDINAL ) shall forthwith be sent by registered letter to the person exercising paternal authority over the child or young person , or to his guardian , if any , who shall be asked to state to the Director of the ORG responsible for social welfare within DATE from the date of receipt of the said letter , whether he objects to the said order .","( CARDINAL ) If the person to whom the registered letter is sent under subarticle ( CARDINAL ) shall , within the time therein prescribed , signify , even verbally , his objection to the order , the Director of the ORG responsible for social welfare shall , not DATE from the date on which he shall have become aware of the objection , refer the case to ORG in such manner as shall be prescribed by regulations made under LAW .","( CARDINAL ) Where a case is referred to ORG under subarticle ( CARDINAL ) , the said court shall , in such manner and within such time as shall be prescribed by regulations made under LAW , review the whole case and decide whether the child or young person is in need of care , protection or control and shall accordingly confirm or revoke the order made under subarticle ( CARDINAL ) .","( CARDINAL ) An order made under subarticle ( CARDINAL ) shall , unless it has ceased to have effect earlier , cease to have effect on the date on which the child or young person in respect of whom the order is made attains DATE . \u201d","Article CARDINAL","\u201c The Minister shall , with respect to any child or young person committed to his care by an order made under LAW or taken into his care by an order made under article PERSON ) , under article CARDINAL or under article CARDINAL(CARDINAL ) , have the same powers and duties with regard to his care and custody as the parents or guardian of such child or young person would , but for the order , have , and the Minister may , subject to any regulations made in pursuance of LAW , restrict the liberty of such child or young person to such extent as the Minister may consider appropriate ( ... ) \u201d","Article CARDINAL","\u201c Where a child or young person is in the care of the Minister in pursuance of this LAW , it shall be the duty of the Minister to exercise his powers with respect to the care and custody of such child or young person so as to further his best interests and to afford him an opportunity for the proper development of his character and abilities ( ... ) \u201d","NORP The relevant articles of LAW , LAW , in so far as relevant , read as follows :","Article CARDINAL","\u201c ( CARDINAL ) Whosoever , having the responsibility of any child under DATE , by means of persistent acts of commission or omission ill - treats the child or causes or allows the ill - treatment by similar means of the child shall , unless the fact constitutes a more serious offence under any other provision of this Code , be liable on conviction to imprisonment for a term not exceeding two years . ( ... )","( CARDINAL ) The provisions of article CARDINAL(CARDINAL ) shall also apply in the case of an offence under this article , when the offence is committed by any ascendant or tutor . \u201d","Article CARDINAL )","\u201c ( CARDINAL ) A conviction under this article shall entail the forfeiture of every authority and right granted to the offender over the person or property of the husband or wife or of the descendant to whose prejudice the offence shall have been committed , and , in the case of the tutor , his removal from the tutorship and his perpetual disability from holding the office of tutor . \u201d","LAW","\u201c ( CARDINAL ) Without prejudice to the provisions of any other law imposing or authorising the suspension or cancellation of , or disqualification from holding or obtaining , any warrant , licence , permit or other authority held from the ORG or any other public authority , where any person is convicted , whether as a principal or an accomplice , of a criminal offence which has been committed -","( a ) in or in connection with the exercise of any profession , art , trade , calling or other occupation for which a warrant , licence , permit or authority has been or may be issued to him by the ORG or any other public authority ; or","( b ) in the use or by means of any instrument , vehicle , substance or other thing whatsoever for the carrying , keeping or using of which a licence , permit or authority has been or may be issued to him , the court may , in addition to sentencing the person convicted as aforesaid to any punishment provided by law for the offence , order such person to be disqualified from holding or obtaining , for such time as the court deems fit , such warrant , licence , permit or authority .","Provided that , where an application under this subarticle is refused , a further application thereunder shall not be entertained if made within DATE after the date of the refusal . \u201d","LAW","\u201c ( CARDINAL ) A suspended sentence which has not taken effect shall for all intents and purposes of law be deemed , except as provided in subarticle ( CARDINAL ) , to be a sentence awarding punishment and nothing in this article shall be deemed to effect -","( a ) the applicability of any other punishment which may be awarded , or any suspension , cancellation , disqualification , forfeiture , loss or removal which may be ordered , together with the punishment of imprisonment so suspended ; \u201d","Article CARDINAL of LAW , in so far as relevant , reads as follows :","\u201c ( CARDINAL ) In the cases referred to in this sub - title , the curator ad litem may be appointed by the same court before which the action has been brought , or is about to be brought , upon the application of any person interested .","( CARDINAL ) The application for the appointment of a curator to represent a minor who desires to sue , may be made by any person . \u201d"],"violated_articles":["6","8"],"violated_paragraphs":["6-1","8-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96023","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF PUCZYNSKI v. POLAND","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant lodged with the Mayor of PERSON ( Urz\u0105d Miasta ) an application to transform his right of perpetual use ( prawo u\u017cytkowania wieczystego ) of a piece of real property into a right of ownership . He relied on the provisions of DATE PERSON on Transforming Perpetual Use Vested in Individuals into Ownership ( ustawa o przekszta\u0142ceniu prawa u\u017cytkowania wieczystego przys\u0142uguj\u0105cego osobom fizycznym w prawo w\u0142asno\u015bci ) ( \u201c the CARDINAL LAW \u201d ) .","On DATE the Mayor informed the applicant that , due to a judgment of ORG ( PERSON ) which found some provisions of LAW to be incompatible with the LAW , he could not give a decision in the case within the statutory time - limit of DATE , and set a new time - limit of DATE .","On DATE the Mayor informed the applicant that , due to some changes to LAW , a valuation report concerning the property ( operat szacunkowy ) had to be drawn up and a new time - limit set , DATE .","On DATE the applicant complained to ORG ( PERSON ) about inactivity on the part of the administrative authority .","On DATE ORG of Appeal found the applicant 's complaint well - founded and ordered the Mayor to give a decision on the merits within DATE of the delivery of its decision .","The Mayor did not give the decision within the prescribed timelimit . Instead , on DATE , the Mayor issued a procedural decision ( postanowienie ) setting another time - limit , DATE , and informing the applicant that the decision could not be appealed against and that it could be challenged only when a decision on the merits had been given .","On DATE the applicant again asked the Mayor to give a decision in his case .","On DATE the Mayor informed the applicant that , due to further changes to LAW , by a decision of CARDINAL DATE the proceedings for transforming his right had been discontinued and that proceedings for ex lege acquisition of the property in question had been instituted .","On DATE the Mayor again informed the applicant that the matter could not be resolved within the statutory time - limit and set a new time - limit of DATE .","On DATE the applicant again complained to ORG about the inactivity of the administrative authority .","On DATE ORG of Appeal found the complaint justified and ordered the Mayor to give a decision in that connection within DATE of the delivery of its decision .","On DATE the Mayor gave a decision on the merits and refused to acknowledge an ex lege acquisition of the property by the applicant .","On DATE the applicant appealed .","On DATE ORG of Appeal quashed the challenged decision and remitted the case .","On DATE the Mayor gave a further decision and again refused to acknowledge an ex lege acquisition of the property .","On an unspecified date the applicant appealed .","On DATE ORG of Appeal again quashed the challenged decision and remitted the case .","On DATE the Mayor gave a decision , again a refusal .","NORP The applicant did not appeal against that decision .","The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the ORG 's judgment in the case of PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70447","languageisocode":"ENG","respondent":"FRA","branch":"GRANDCHAMBER","date":2005,"docname":"CASE OF DRAON v. FRANCE","importance":2,"conclusion":"Violation of P1-1;No separate issue under Art.14+P1-1;No separate issue under Art. 6-1;No violation of Art. 13;No violation of Art. 8;Costs and expenses partial award - Convention and domestic proceedings;Just satisfaction reserved","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Luzius Wildhaber;Nicolas Bratza","text":["The applicants were born in DATE and DATE respectively and live in NORP - sous - Bois .","In DATE PERSON began her first pregnancy . The second ultrasound scan , carried out in DATE of pregnancy , revealed an anomaly in the development of the foetus .","On DATE an amniocentesis was carried out at ORG hospital , run by ORG ( NORP ) . The amniotic fluid sample was sent for analysis to the establishment \u2019s cytogenetics laboratory ( headed by Professor PERSON ) with a request for karyotype and digestive enzyme analysis . In DATE T. informed the applicants that the amniocentesis showed the foetus had \u201c a male chromosomal pattern with no anomaly detected \u201d .","R. was born on DATE . Very soon , multiple anomalies were observed , particularly defective psychomotor development . The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a \u201c chromosomal anomaly \u201d .","When informed of this PERSON admitted that his service had made the wrong diagnosis , the anomaly having already been entirely detectable at the time of the amniocentesis . He stated : \u201c Concerning the child PERSON , ... we regret to have to say that there was indeed an asymmetry between the foetus \u2019s CARDINAL copies of chromosome CARDINAL ; that anomaly or peculiarity escaped our attention \u201d .","According to the medical reports , NORP presents cerebral malformations causing grave disorders , severe impairment and permanent total invalidity , together with arrested weight gain . This means that it is necessary to make material arrangements for his everyday care , supervision and education , including ongoing specialist and non - specialist treatment .","On DATE the applicants sent a claim to ORG - HP seeking compensation for the damage suffered as a result of NORP \u2019s disability .","In a letter dated DATE ORG replied that it \u201c [ did ] not intend to deny liability in this case \u201d but invited the applicants to \u201c submit an application to ORG which , in its wisdom , will assess the damage for which compensation should be paid \u201d .","On DATE the applicants submitted to ORG a statement of their claim against ORG , requesting an assessment of the damage suffered .","At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award .","In a decision of CARDINAL DATE the urgent applications judge of ORG made a first interim award of ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) and appointed an expert . He made the following points , among other observations :","\u201c [ ORG - HP ] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy NORP is suffering from ; ... having regard to the non - pecuniary damage , the disruption in the conditions of their lives and the special burdens arising for PERSON and PERSON from their child \u2019s infirmity , ORG liability towards them in the sum of MONEY may be considered , at the current stage of the investigation , not seriously open to challenge \u201d .","The expert filed his report on DATE and confirmed the seriousness of NORP \u2019s state of health .","On DATE , in a supplementary memorial on the merits , the applicants requested ORG to assess the amount of the compensation which ORG should be required to pay .","AP - HP \u2019s memorial in reply was registered on DATE . The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by NORP \u2019s state of health .","In addition , the applicants again asked the urgent applications judge to make an interim award . In a decision of CARDINAL DATE the urgent applications judge of ORG made an additional interim award of ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) to the applicants \u201c in view of the severity of the disorders from which the boy NORP continues to suffer and the high costs of bringing him up and caring for him since DATE \u201d .","After being prompted several times , verbally and in writing , by the applicants , ORG informed them that the case had been set down for hearing on DATE .","On DATE Law no . DATE of DATE was published in ORG of GPE . Section CARDINAL of that PERSON , being applicable to pending proceedings , affected those brought by the applicants .","In a letter of DATE ORG informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion , since it applied to their claim by virtue of LAW .","In a judgment of DATE ORG , acting on a proposal made by the Government Commissioner , deferred its decision and submitted to the PERSON d\u2019Etat a request for an opinion on interpretation of the provisions of LAW and their compatibility with international conventions .","On DATE the ORG d\u2019Etat gave an opinion in the context of the litigation in progress ( avis contentieux ) which is reproduced below ( see paragraph CARDINAL ) .","On the basis of that opinion , ORG ruled on the merits of the case on DATE . It began with the following observations :","\u201c Liability","The provisions of LAW , in the absence of provisions therein deferring their entry into force , are applicable under the conditions of ordinary law following publication of that PERSON in ORG of GPE . Since the rules the PERSON lays down were framed by ORG on general - interest grounds relating to ethical considerations , the proper organisation of the health service and the equitable treatment of all disabled persons , they are not incompatible with the requirements of LAW ] , with those of ORG , DATE , DATE and CARDINAL of [ the Convention ] or with those of LAW No . CARDINAL [ to the Convention ] . The general - interest grounds which ORG took into consideration when framing the rules set out in the first CARDINAL paragraphs of CARDINAL justify their application to situations which arose prior to the commencement of pending proceedings . It follows that those provisions are applicable to the present action , brought on DATE ;","The administrative courts do not have jurisdiction to rule on the constitutionality of legislation ; [ the applicants\u2019 ] request that this court review the constitutionality of LAW must therefore be refused ;","It appears from the investigation that in DATE of PERSON pregnancy , after an ultrasound scan had shown a manifest problem affecting the growth of the foetus , she and PERSON were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality . Mr and PERSON then decided to have that test performed at FAC . They were informed by the hospital on DATE that no anomaly of the foetus \u2019s male chromosomal pattern had been detected . However , very soon after the baby \u2019s birth on DATE magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly ;","The report of the expert appointed by the court states that this anomaly was entirely detectable ; failure to detect it therefore constituted gross negligence on ORG part which deprived PERSON and PERSON of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under LAW \u201d .","The court then assessed the damage sustained by the applicants as follows :","\u201c ... firstly , ... the amounts requested in respect of non - specialist care , the specific costs not borne by social security , the costs of building a house suited to the child \u2019s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and can not therefore be sums for which [ AP - HP ] is liable ;","... secondly , ... PERSON and PERSON are suffering non - pecuniary damage and major disruption in their lives , particularly their work , regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child ; ...","... lastly ... , although PERSON and PERSON submitted that they could no longer holiday in a property they had purchased in GPE , they are not deprived of the right to use that property ; consequently their claim for compensation for loss of enjoyment of real property must be rejected ; ... \u201d","The court concluded by ordering ORG - HP to pay the applicants the sum of ORG CARDINAL,CARDINAL , less the amount of the interim awards , interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on DATE , the interest due being capitalised on DATE and subsequently on each anniversary from DATE . AP - HP was also ordered to pay the applicants the sum of ORG CARDINAL in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court .","On DATE the applicants appealed against the judgment . Their appeal is currently pending before ORG .","NORP Before enactment of GPE DATE the legal position was established by the relevant case - law .","An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts , depending on the identity of the defendant . If the defendant is a private doctor or a private medical laboratory , the dispute is referred to the ordinary courts . Where , on the other hand , as in the instant case , a public hospital service is involved , the dispute falls within the jurisdiction of the administrative courts .","The PERSON d\u2019Etat gave judgment on DATE ( CARDINAL , Sect . , DATE , ORG hospitalier de Nice v. ORG . p.CARDINAL ) . PERSON PERSON , then aged DATE , had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying . Although the result of that examination revealed no anomaly , she gave birth to a child suffering from trisomy CARDINAL , a condition detectable through the chromosome test carried out . The PERSON d\u2019Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence , since PERSON had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place .","Secondly , a distinction was drawn between the disabled child \u2019s entitlement to compensation and that of its parents .","With regard to the disabled child \u2019s right to compensation , the ORG d\u2019Etat ruled : \u201c In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child PERSON from the trisomy from which he suffers , when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make - up was the consequence of an amniocentesis , ORG made an error of law \u201d .","On the other hand , with regard to the GPE right to compensation , the ORG d\u2019Etat noted : \u201c By asking for an amniocentesis , PERSON had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived , whose probability , given her age at the time , was relatively high . \u201d It went on to say that in those conditions the hospital \u2019s negligence had \u201c wrongly led PERSON and PERSON to the certainty that the child conceived was not trisomic and that PERSON pregnancy could be taken normally to term \u201d and that \u201c this negligence , as a result of which PERSON had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under LAW of LAW , [ should ] be regarded as the direct cause of the prejudice caused to PERSON and PERSON by their child \u2019s infirmity \u201d .","With regard to compensation , the ORG d\u2019Etat took into account , under the head of pecuniary damage , the \u201c special burdens , particularly in terms of specialist treatment and education \u201d made necessary by the child \u2019s infirmity , and awarded the parents an annuity to be paid throughout the child \u2019s life . It also ordered the hospital to pay compensation for their nonpecuniary damage and the disruption to their lives .","Thus the ORG d\u2019Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother \u2019s pregnancy . It did accept on the other hand that the parents of the child born with a disability were entitled to compensation and made an award not only in respect of their non - pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage , specifying that the latter included the special burdens which would arise for the parents from their child \u2019s infirmity ( expenditure linked to specialist treatment and education , assistance from a helper , removal to a suitable home or conversion of their present home , etc . ) .","The judgment did not attract particular comment and led to a line of case - law followed thereafter by the administrative courts .","The case - law of the ordinary courts was laid down by ORG on DATE ( PERSON , Ass . PERSON . , CARDINAL DATE , ORG . Ass . PERSON . , no . CARDINAL ) in a judgment which was widely commented on ( the PERSON judgment ) . In the PERSON case a woman had been taken ill with rubella at the start of her pregnancy . Having decided to terminate the pregnancy if the foetus was affected , she took tests to establish whether she was immunised against the disease . Because of negligence on the part of both her doctor and the laboratory , she was wrongly informed that she was immunised . She therefore decided not to terminate the pregnancy and gave birth to a child which suffered from grave disabilities resulting from infection with rubella in the womb . ORG held : \u201c Since the negligence on the part of the doctor and the laboratory in performing the services for which they had contracted with PERSON prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child , the child may claim compensation for the damage resulting from that disability and caused by the negligence found . \u201d","Thus , contrary to the ORG d\u2019Etat , ORG accepted that a child born disabled could himself claim compensation for the prejudice resulting from his disability .","In this case therefore account was taken of the pecuniary and non - pecuniary damage suffered by both the child and the parents , including the special burdens arising from the disability throughout the child \u2019s life .","It thus appears that in the same circumstances both ORG and the ORG d\u2019Etat base their approach on a system of liability for negligence . However , ORG recognises a direct causal link between the medical negligence and the child \u2019s disability , and the prejudice resulting from that disability for the child itself . The ORG d\u2019Etat does not recognise that link but considers that the negligence makes the hospital liable vis - \u00e0 - vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained .","Both lines of case - law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child \u2019s life . However , since the ORG d\u2019Etat considers that damage to have been sustained by the parents , whereas ORG considers that it is sustained by the child , there may be significant differences in the nature and amount of such compensation , depending on whether the case - law of the former or the latter court is being followed .","The judgment of CARDINAL DATE was upheld several times by ORG , which reaffirmed the principle of compensation for the child born disabled , subject to proof , where appropriate , that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied ( PERSON . , Ass . pl\u00e9n . , CARDINAL judgments of DATE , PERSON , no . CARDINAL , DATE ; see also PERSON . , Ass . pl\u00e9n . , CARDINAL judgments of DATE , ORG , DATE ) .","The PERSON judgment drew numerous reactions from legal theorists , but also from politicians and from associations of disabled persons and practitioners ( doctors , obstetrical gynaecologists and echographers ) . The last - mentioned group interpreted the judgment as obliging them to provide a guarantee , and the insurance companies raised medical insurance premiums .","Both the ORG d\u2019Etat and ORG took as their starting point a system of liability for negligence . In NORP law , under the general rules on the question , the right to compensation for damage can be upheld only if the conditions for liability are first satisfied . That means that there must be prejudice ( or damage ) , negligence and a causal link between the damage and the negligence .","More particularly , with regard to the liability of a public authority , for compensation to be payable the prejudice , which it is for the victim to prove , must be certain . Loss of opportunity constitutes certain prejudice , provided that the opportunity was a serious one .","In the present case the prejudice resulted from a lack of information , or inadequate or incorrect information , about the results of an examination or analysis . In such a case , before LAW was enacted , negligence falling short of gross negligence was sufficient . As to the relation between cause and effect , a direct causal link was established between the hospital \u2019s negligence and the GPE prejudice ( see the abovementioned PERSON judgment ) .","Still in the sphere of administrative law , the amount of compensation is governed by the general principle of full compensation for damage ( neither impoverishment nor enrichment of the victim ) . Compensation may take the form of a capital sum or an annuity . According to the principle of the equal validity of claims for all heads of damage , both pecuniary damage and non - pecuniary damage confer entitlement to compensation .","The Law of DATE put an end to the position established by the case - law mentioned above , of both the ORG d\u2019Etat and ORG alike . Its relevant parts provide as follows :","\u201c I. No one may claim to have suffered damage by the mere fact of his or her birth .","A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it .","Where the liability of a health - care professional or establishment is established vis - \u00e0 - vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence ( faute caract\u00e9ris\u00e9e ) , the parents may claim compensation in respect of their damage only . That damage can not include the special burdens arising from the disability throughout the life of the child . Compensation for the latter is a matter for national solidarity .","The provisions of the present sub - section I shall be applicable to proceedings in progress , except for those in which an irrevocable decision has been taken on the principle of compensation .","II . Every disabled person shall be entitled , whatever the cause of his or her disability , to the solidarity of the national community as a whole .","III . ORG for Disabled Persons shall be charged , in a manner laid down by decree , with assessing the material , financial and non - material situation of disabled persons in GPE , and of disabled persons of NORP nationality living outside GPE and receiving assistance by virtue of national solidarity , and with presenting all proposals deemed necessary to ORG , with the aim of ensuring , through an ongoing pluri - DATE programme , that assistance is provided to such persons ... \u201d","These provisions entered into force \u201c under the conditions of ordinary law following publication of the PERSON in ORG of the NORP Republic \u201d ( see paragraph CARDINAL below ) . PERSON no . DATE was published in ORG on DATE and it therefore came into force on DATE .","The PERSON d\u2019Etat observed in particular :","\u201c ... II . The date of the PERSON \u2019s entry into force :","The liability criteria set out in the second sub - paragraph of paragraph I of section CARDINAL were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability , aggravated it or made it impossible to take steps to attenuate it . They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope .","The different liability criteria defined in the third sub - paragraph of paragraph I of section CARDINAL were enacted in favour of the parents of children born with a disability which , on account of gross negligence on the part of a medical practitioner or healthcare establishment , was not detected during pregnancy . They are sufficiently precise to be applied without the need for further legislative provisions or regulations . Admittedly , they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child \u2019s life in the damage for which the parents can obtain compensation , and provide that such damage is to be made good through reliance on national solidarity . But the very terms of the PERSON , interpreted with the aid of its drafting history , show that ORG intended to exclude compensation for that head of damage on the ground that , although there was a causal link between negligence and damage , that link was not such as to justify making the person who committed the negligent act liable for the resulting damage . In providing that this type of damage should be made good by reliance on national solidarity , ORG did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons .","It follows that , since the PERSON does not contain provisions for the deferred entry into force of section CARDINAL , and since in addition ORG \u2019s intention , as revealed by the PERSON \u2019s drafting history , was to make it applicable immediately , the provisions of LAW came into force under the conditions of ordinary law following the PERSON \u2019s publication in ORG of GPE .","III . Law no . DATE - CARDINAL \u2019s compatibility with international law","( CARDINAL ) ...","The object of LAW is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents , differing from the system which had emerged from the case - law of the administrative and ordinary courts . The new system provides for compensation , by means of an award to be assessed by the courts alone , for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of the child born with a disability which , on account of gross medical negligence , was not detected during pregnancy . It prevents children born with a disability which , on account of medical negligence , was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives , whereas such compensation had previously been possible under the case - law of the ordinary courts . It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child \u2019s disability throughout its life , whereas such compensation had previously been possible under the case - law of the administrative courts . Lastly , it makes compensation for other heads of damage suffered by the child \u2019s parents subject to the existence of gross negligence , whereas the case - law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence .","This new system , which was put in place by ORG on general - interest grounds relating to ethical considerations , the proper organisation of the health service and the equitable treatment of all disabled persons , is not incompatible with the requirements of LAW of [ LAW ] , with those of ORG , DATE , DATE and CARDINAL of [ the Convention ] , with those of LAW No . CARDINAL [ to the Convention ] or with those of ORG DATE Covenant on Civil and Political Rights .","( CARDINAL ) The last sub - paragraph of paragraph I of section CARDINAL makes the provisions of paragraph I applicable to pending proceedings \u201c except for those in which an irrevocable decision has been taken on the principle of compensation \u201d .","The general - interest grounds taken into account by ORG when it laid down the rules in the first CARDINAL sub - paragraphs of paragraph I show , in relation to the points raised in the request for an opinion , that the intention behind the last sub - paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings , while rightly reserving final judicial decisions . \u201d","NORP legislation ( see PERSON no . DATE of DATE on orientation in favour of disabled persons , which set up the basic framework , and later legislation ) provides compensatory advantages to disabled persons based on national solidarity in a number of fields ( such as the right to education for disabled children and adults , technical and human assistance , financial assistance , etc . ) .","In particular , the families of disabled persons are entitled to a special education allowance ( Allocation d\u2019\u00e9ducation sp\u00e9ciale \u2013 \u201c the ORG \u201d ) . This is a family benefit paid from the family allowance funds , provided both the child and its parents are resident in GPE . The ORG is granted by decision of ORG of the d\u00e9partement in which the claimant lives , after the file has been studied by a multidisciplinary technical team . First the Special Education Board takes formal note of the child \u2019s disability and assesses it . For entitlement to the ORG , the level of disability found must at least exceed PERCENT . Where the disability exceeds PERCENT , entitlement to the ORG is automatic ; if the disability is assessed at PERCENT , payment of the allowance is not automatic . It is subject to the child \u2019s need for pedagogical , psychological , medical , paramedical and other forms of assistance .","The ORG is a CARDINAL - level benefit : the basic allowance plus top - up payments . The first level is automatically payable where the conditions mentioned above are satisfied . The basic rate of ORG is ORG DATE ( the figure supplied by the Government on DATE ) . Where the child \u2019s state of health requires substantial expenditure or the assistance of a third person , this may then confer entitlement to CARDINAL of the CARDINAL levels of ORG top - up payments , which are added to the basic rate .","The first CARDINAL top - up payments depend on the level of expenditure required by the child \u2019s state of health , the time for which the assistance of a third person is necessary , or a combination of both . The sixth level of top - up payment is for the most severe cases , where the child \u2019s state of health requires the assistance of a third person all through DATE and the families have to provide constant supervision and treatment .","The PERSON of DATE emerged from a legislative process launched as far back as DATE with the intention of reforming the system of disability compensation in GPE . It was pointed out in particular that following the enactment of LAW it was necessary to legislate again \u201c to give effective substance to national solidarity \u201d ( see ORG produced on behalf of the ORG \u2019s ORG by Senator PERSON , containing CARDINAL proposals for amending the PERSON of DATE , appended to the record of the ORG \u2019s sitting on DATE , p. CARDINAL ) .","The new law makes a number of substantial changes . In particular , it includes for the first time in NORP law a definition of disability and introduces a new \u201c compensatory benefit \u201d to be added to existing forms of assistance .","To that end , the Law of DATE amends ORG . Its relevant provisions are worded as follows :","Title I : General provisions","Section CARDINAL","\u201c I. ... A disability , within the meaning of the present PERSON , is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial , lasting or permanent impairment of CARDINAL or more physical , sensory , mental , cognitive or psychological functions , a multiple disability , or a disabling health disorder . ...","Every disabled person shall be entitled to solidarity from the whole national community , which , by virtue of that obligation , shall guarantee him or her access to the fundamental rights of all citizens , and the full exercise of citizenship .","The ORG shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans . ...","II . DATE . The first CARDINAL sub - paragraphs of the first paragraph of LAW no . DATE of DATE on ORG rights and the quality of the health service shall become LAW of ORG Family Code .","NORP The provisions of LAW of ORG Family Code , as amended by sub - paragraph CARDINAL of the present paragraph II , shall be applicable to proceedings in progress on the date of the entry into force of the above - mentioned PERSON no . DATE of DATE , except for those in which an irrevocable decision has been taken on the principle of compensation . \u201d ...","Title III : Compensation and resources","LAW for the consequences of disability","Section CARDINAL","\u201c ... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment , or his or her age or lifestyle .","That compensation shall consist in meeting his or her needs , including nursery care in early childhood , schooling , teaching , education , vocational insertion , adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy , developing or improving the supply of services , in particular to enable those around the disabled person to enjoy respite breaks , developing mutual support groups or places in special establishments , assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment , or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by LAW . The above responses , adapted as required , shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone .","The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan , written by himself or herself or , failing that , where he or she is unable to express an opinion , with or for him or her by his or her legal representative . \u201d","Section CARDINAL Compensatory benefit","\u201c ... I. \u2013 Every disabled person stably and regularly resident in metropolitan GPE ... above the age at which entitlement to the disabled child \u2019s education allowance [ formerly the ORG ] begins ... , whose age is below the cut - off point to be laid down by decree and whose disability matches the criteria to be laid down by decree , taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan , shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable , at the wishes of the beneficiary , either in kind or in money . ...","III . \u2013 The element of the benefit mentioned in point CARDINAL of Article L. CARDINAL - CARDINAL [ of ORG ] may also be claimed , under conditions to be laid down by decree , by beneficiaries of the [ disabled child \u2019s education ] allowance [ formerly the ORG ] , where on account of their child \u2019s disability they are likely to bear burdens of the type covered by that paragraph . ...","Article L. CARDINAL - CARDINAL [ of ORG ] \u2013 Compensatory benefit may be used , under conditions to be laid down by decree , for","NORP burdens arising from the need for human assistance , including , where necessary , the assistance provided by family helpers ;","NORP burdens arising from the need for technical assistance , particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point CARDINAL of Article CARDINAL of the Social Security Code ;","NORP burdens arising from adaptation of the home or vehicle of the disabled person , and any extra expenditure needed for his or her transport ;","NORP specific or exceptional burdens , such as those arising from the purchase or maintenance of products needed on account of the disability ; ...","... \u2013 The element of the benefit mentioned in point CARDINAL of Article L. CARDINAL - CARDINAL shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence , or requires regular supervision , or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office . \u201d","The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the ORG ( renamed \u201c disabled child \u2019s allowance \u201d by the new legislation \u2013 see section CARDINAL above ) begins . With regard to children , LAW DATE provides :","\u201c Within DATE from the entry into force of the present Law compensatory benefit shall be extended to disabled children . Within a maximum of DATE those provisions of the present PERSON which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico - social establishments shall be repealed . \u201d","The entry into force of the PERSON of DATE is subject to publication of the implementing decrees . Section FAC provides :","\u201c The regulations implementing the present PERSON shall be published within DATE of its publication , after being referred for opinion to ORG for Disabled Persons . ... \u201d","According to the information supplied by the ORG , the new compensatory benefit should come into force on DATE . It is expected that it will be payable in full to disabled children by DATE . In the meantime , children will apparently receive only part of the benefit : only the costs of adapting a disabled child \u2019s home or vehicle , or his or her additional transport costs , can already be financed by the new system ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104515","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF PEKER v. TURKEY (No. 2)","importance":3,"conclusion":"Violation of Art. 2;Remainder inadmissible;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Ireneu Cabral Barreto","text":["The applicant was born in DATE and lives in GPE .","On DATE security operations were conducted in a number of prisons in GPE , during which scores of detainees were killed and CARDINAL injured ( for details of these operations , see PERSON GPE , no . CARDINAL\/CARDINAL , DATE ; PERSON and GPE v. GPE , no . DATE ; and PERSON and Others v. GPE , no . MONEY , DATE ) .","The operation in GPE prison , where the applicant was serving a prison sentence , started in TIME . As the remaining facts of the case are disputed between the parties , they will be set out separately .","At TIME on DATE a large number of gendarmes went into the prison by the main entrance and started firing without giving any warning . At that moment the applicant was in the corridor just outside his dormitory . He was hit in the leg by a bullet fired by the gendarmes . A doctor friend of the applicant who was a remand prisoner in the same prison provided first aid to the applicant .","When the inmates set up barricades to protect themselves , the gendarmes threw in explosives containing various gases and smoke . They also continued firing . Heavy machinery was used to make large holes in the prison roof , through which the gendarmes poured boiling water and sprayed gases .","At TIME the applicant and the other injured inmates were taken into the courtyard of the prison . There the applicant was handcuffed and dragged through a CARDINAL-metre - long human corridor formed by the gendarmes . While this was being done the gendarmes kept hitting the applicant until he passed out . While the prison governor and other civilian authorities were checking the inmates ' identity documents , a gendarme dragged the applicant into a corner and beat him up there . He was subsequently taken to ORG but was brought back to the prison DATE , before his treatment was complete .","The operation , named \u201c Return to Life \u201d , began at TIME on DATE , when members of the security forces went into the prison through the main entrance . At that moment one of the inmates tried to close the door and told fellow inmates that the security forces were there . The inmates then locked and barricaded the second door of the main hall . The gendarmes heard a gunshot coming from the barricaded side where the inmates had gathered .","NORP Despite a number of warnings given by the security forces , the inmates did not lift the barricades . The security forces overcame the inmates ' resistance and went into the cells . CARDINAL inmates who were on hunger strike at the time and a further CARDINAL who had been injured during the operation were taken to ORG . The applicant was wounded by a bullet and was among those who were taken to the hospital .","The operation ended at TIME . Materials used by the inmates as weapons , namely wooden sticks and iron bars , were found in the dormitories and confiscated by the security forces .","The following information is disclosed by the documents submitted by the parties .","According to CARDINAL reports drawn up by a prosecutor and gendarmerie personnel on DATE , the operation in the prison started at CARDINAL a.m. DATE . The reason for the operation was to take a number of prisoners who were on hunger strike to a hospital . When the inmates refused to co - operate , force had to be used to remove them from the prison . According to these reports , a gunshot was heard from behind the barricades where the inmates were standing .","After the operation , a number of inmates who were on hunger strike were taken to hospital . Furthermore , the applicant and CARDINAL other inmates who were injured in the operation were also taken to hospital . A doctor examined the applicant at GPE hospital on DATE , noted a gunshot wound on his left foot and began treating it .","No firearms were found in the prison during the searches carried out in the immediate aftermath of the operation , or during the searches carried out on DATE , DATE , DATE , DATE , DATE and DATE .","In an official complaint on DATE the applicant asked the PERSON prosecutor to prosecute those responsible for the shooting and the ill - treatment . He alleged that the gendarmes had opened fire on the inmates .","On DATE the PERSON prosecutor questioned the applicant about these complaints . The applicant maintained his complaints and informed the prosecutor that on his return from the hospital he had been beaten up again by the gendarmes . He added that according to information he had obtained subsequently , an officer named either \u201c PERSON \u201d or \u201c NORP \u201d had shot him with his pistol . He also told the prosecutor that bullet marks were still visible in the ceiling of the prison .","An officer by the name of GPE who had taken part in the operation was questioned by the GPE prosecutor on DATE . The officer told the prosecutor that he had heard a shot from the other side of the barricades , but added that he had not used his weapon during the operation . No bullets or spent bullet cases had been found after the operation .","NORP In his indictment of DATE the PERSON prosecutor indicted the applicant and CARDINAL of his fellow inmates . The inmates were accused of obstructing law - enforcement personnel in the execution of their duties and causing criminal damage .","During a search conducted at the prison on DATE a pistol and CARDINAL bullets were found by the prison authorities .","On DATE gendarme officer PERSON , who had been responsible for the security of the applicant 's prison , was questioned by the PERSON prosecutor . Officer PERSON informed the prosecutor that a total of CARDINAL pistols had been found during searches conducted in the prison DATE after the operation . It was possible that the applicant had been shot with CARDINAL of those pistols by the inmates during the operation . Neither officer PERSON nor any of the gendarmes under his command had fired shots during the operation .","CARDINAL more pistols and QUANTITY bullets were found in the prison on DATE .","CARDINAL other gendarmerie personnel questioned by the prosecutor on DATE stated that the gendarmes had not fired shots during the operation . They all considered that the applicant had probably been shot by his fellow inmates with CARDINAL of the pistols found in the prison .","In a statement on DATE the applicant repeated his allegations and gave the prosecutor the names of the CARDINAL friends who had assisted him after he had been shot . In a large number of letters sent DATE and DATE the NORP prosecutor unsuccessfully requested the authorities to locate and question these CARDINAL inmates .","On DATE one of the above - mentioned CARDINAL inmates was found and questioned by a prosecutor . He told the prosecutor that the gendarmes had opened fire on the inmates and that the applicant had been injured by a bullet fired by the gendarmes . Another inmate , questioned subsequently by the prosecutor , stated that he had not seen the applicant being shot .","In his letter of CARDINAL DATE addressed to the GPE governor the PERSON prosecutor requested permission to prosecute CARDINAL gendarmerie officers allegedly responsible for the applicant 's injury . The PERSON governor appointed a gendarmerie officer to investigate the allegations .","CARDINAL gendarmerie officers questioned by the investigator appointed by the Governor stated that they had not fired their weapons during the operation . One of them stated that a ballistic examination of their weapons would confirm the accuracy of their statements .","Having regard to the denials of the gendarmerie personnel , the investigating officer advised the governor on DATE not to grant the authorisation sought by the prosecutor .","Acting on the investigator 's advice the governor refused the request for authorisation on DATE .","On DATE ORG in GPE examined the objection lodged by the applicant against the governor 's decision on DATE , and quashed the decision . It held that a judicial investigation should be carried out .","On DATE the PERSON prosecutor wrote to ORG in FAC and asked for the CARDINAL officers to be sent to his office for further questioning . When the prosecutor received no responses to his letter , he repeated his request on DATE . On DATE an officer informed the prosecutor that the CARDINAL officers were no longer working at the prison .","On DATE the prosecutor decided not to prosecute the CARDINAL gendarmes alleged to have fired at the applicant . According to the prosecutor , there was insufficient evidence that the applicant had been injured by shots fired by the gendarmes . In his opinion the applicant had been shot with a bullet fired by inmates .","The applicant lodged an objection to the prosecutor 's decision on DATE . He argued , inter alia , that the investigation had not been conducted in a timely manner or in an impartial and independent fashion . He also alleged that the prosecutor had failed to collect all available evidence , such as TV footage of the incident , statements by other eyewitnesses and medical reports .","The objection lodged by the applicant was dismissed by ORG in GPE on DATE . The decision was communicated to the applicant on DATE .","On DATE the case brought against the applicant and his fellow inmates ( see paragraph CARDINAL above ) , in so far as it concerned the offence of obstructing law - enforcement officials in the enforcement of their duties , was rejected as the period of limitation had already expired .","In the meantime , the applicant was released from the prison in DATE ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-97623","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2010,"docname":"CASE OF PATRIKOVA v. BULGARIA","importance":3,"conclusion":"Violation of Art. 6;Violations of P1-1;Pecuniary damage and non-pecuniary damage - award","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in Isperih . At the relevant time she was a sole trader , registered under the name ORG PERSON ORG . Under NORP law her business did not have a distinct legal personality . She traded in alcoholic beverages and tobacco , which are considered as excise duty products under NORP tax law .","The applicant possessed a licence , issued in DATE , for wholesale trading in excise duty products .","On DATE the ORG tax authority inspected CARDINAL of the CARDINAL storehouses where the applicant held her merchandise , seized all tobacco and alcoholic products found therein and by decision of DATE fined the applicant . The decision was based on the tax authority 's opinion that the relevant law required a separate license for storage of excise duty products whereas the applicant only had a trading license .","The authorities seized a significant quantity of tobacco products , CARDINAL bottles of wine and CARDINAL bottles of other alcoholic beverages with higher alcohol content ( CARDINAL bottles in total ) . They were moved to a storage building used by the ORG tax authority . At the time of seizure , the total value of the merchandise was the equivalent of MONEY ( ORG ) . The fine imposed on the applicant was in the amount of MONEY ( ORG ) , the equivalent of CARDINAL .","It appears that , during the seizure , part of the merchandise was damaged or destroyed due to improper handling .","The applicant lodged an appeal . On DATE the ORG decided in her favour and quashed the ORG tax authority 's decision . The court found that the relevant law did not require a storage license separate from the trading license . In the ensuing cassation proceedings , on DATE ORG reversed the decision and upheld the seizure and fine .","In DATE the applicant filed a request for reopening on the basis of newly obtained information that storage licenses had never been issued in the practice of the relevant authorities . On DATE the ORG agreed to reopen the proceedings and quashed the ORG tax authority 's decision of DATE , stating , inter alia , that there was no support in the relevant law for the view that a separate storage license was required . On DATE ORG upheld ORG judgment .","On DATE criminal proceedings were instituted against the applicant on suspicion of tax evasion , selling excise tax goods without the requisite tax labels and illicit trading in excise goods .","On DATE , ORG ordered the attachment as evidence of the merchandise that had already been seized by the ORG tax authority .","The applicant 's ensuing appeals were dismissed on DATE by ORG and on DATE by ORG .","NORP In DATE a prosecutor from ORG , having inspected the file , noted that there was no evidence of a criminal offence , that the charges against the applicant were unclear and incoherent and that the investigation had not been conducted properly . Ensuing instructions were given to ORG .","On DATE the criminal proceedings were terminated by ORG for lack of evidence . The decision stated that the attached merchandise remained at the disposal of the ORG tax authority .","On DATE , DATE , the same prosecutor in Isperih instituted a fresh inquiry on the suspicion that the applicant might have used counterfeit excise tax labels on the seized bottles of alcohol .","On DATE a police investigating officer from Isperih visited the tax authority 's storage building and inspected the alcoholic beverages seized from the applicant on DATE . He drew up TIME noting the presence of QUANTITY . The TIME further stated that , after the inspection , the bottles had been seized . The exact legal meaning of this statement is unclear , having regard to the fact that it did not concern attachment and that the bottles were not in fact seized but remained in ORG storage building .","On DATE , an expert appointed by the police filed her report stating that the labels found on a sample of CARDINAL bottles ( out of CARDINAL ) had been forged .","On DATE ORG dropped the criminal charges against the applicant as there was no evidence that she had known that they were forged .","The prosecutor ordered that the proceedings should continue against an \u201c unknown perpetrator \u201d and that the seized bottles should be placed under the control of the local tax authority which was competent to decide on a possible confiscation of the bottles carrying counterfeit excise tax labels .","On DATE the applicant appealed , arguing that there was no valid legal ground to withhold the bottles since the charges against her had been dropped . The appeal was not examined until DATE . On DATE the ORG quashed the prosecutor 's order on grounds unrelated to the applicant 's appeal . It noted that only a sample of the merchandise had been analysed for counterfeit labels and that , therefore , all bottles had to be attached in relation to the pending criminal proceedings for forgery by an unknown perpetrator .","The applicant has not been informed of any new developments since DATE .","On DATE , shortly after the seizure , the applicant wrote to the ORG tax authority stating that the seized merchandise was perishable and should be sold to avoid loss of value . She requested permission to sell it and offered a bank guarantee for its value . The ORG tax authority did not grant the request .","On DATE the ORG tax authority wrote to ORG in PERSON seeking their approval to sell the merchandise at an auction , having regard to the fact that it was perishable . The request was not followed up .","On DATE the applicant wrote to the ORG tax authority insisting that the alcoholic beverages must be sold immediately since the validity of the excise tax labels on them expired on DATE and also because new regulations on alcohol content would make it impossible to sell the bottles after DATE . The applicant did not receive a reply .","DATE , the applicant also addressed to the ORG tax authority several unsuccessful requests for the appointment of experts to assess the damage caused during the seizure in DATE and any damage caused by inadequate storage conditions .","On DATE the applicant wrote to the ORG tax authority seeking the restitution of the seized merchandise on the basis that the seizure of DATE had been declared unlawful and the decision of CARDINAL June CARDINAL had been repealed by final judgment of DATE . The tax authority agreed and on DATE the applicant received back all tobacco products . She refused , however , to collect the bottles of wine and other alcoholic beverages as in her view a prior assessment of their condition was needed .","By letters of DATE the tax authority reiterated its invitation to the applicant to remove the remaining merchandise , indicating the dates on which this could be done , and warned her that the authority would not be responsible for any damage if she failed to collect the bottles . The applicant was also warned that in such case the bottles might be treated as abandoned and confiscated . The applicant replied , stating that the merchandise had lost its value and that experts should examine it to determine the damage it had sustained . She did not appear on the dates indicated by the tax authority . In her letter of DATE , addressed to the local tax authority , she explained that she had brought an action for damages against the authority and the relevant prosecutors and that there was \u201c no reason [ for her ] to collect the merchandise which had become unfit for use \u201d . In her letter of DATE the applicant added that the tax authority should order an expert examination of the bottles .","The contacts on this issue continued . According to the applicant , in meetings with the tax authority 's representatives she expressed willingness to hire an expert and organise the assessment of the merchandise . At a meeting held on DATE , the parties had allegedly been close to an agreement .","On DATE the director of the ORG tax authority issued an order under section CARDINAL(CARDINAL ) of LAW , declaring the merchandise abandoned property acquired by the ORG . The text of the decision referred to all alcoholic beverages ( CARDINAL bottles ) as described in the seizure order of DATE ( see paragraphs CARDINAL and CARDINAL above ) and mentioned that the merchandise was held in a storage house under the responsibility of the tax authority . The applicant appealed , stating that the goods had not been abandoned .","By judgment of CARDINAL DATE ORG , noting that CARDINAL bottles had been seized as evidence in criminal proceedings ( see paragraph CARDINAL above ) and that the provisions on acquisition of abandoned property by the tax authorities were inapplicable in such situations , quashed the acquisition order in so far as it concerned those bottles . ORG found that with regard to this part of the merchandise the question whether or not the applicant had undertaken the necessary steps to recover it from the tax authorities was irrelevant , since the tax authorities did not have the power to release goods seized as evidence in criminal proceedings .","As regards the remainder of the alcoholic beverages ( CARDINAL bottles ) , ORG upheld the order of DATE . It found , inter alia , that pursuant to an amendment to LAW ( see paragraph CARDINAL below ) , the tax authorities automatically acquired as abandoned merchandise held by them in the event of its owner not having sought to recover it within DATE of CARDINAL DATE , the date of the amendment 's entry into force . Noting that the applicant had not made requests to recover the bottles DATE and DATE and considering that the events outside this DATE period were irrelevant , the courts found that the tax authorities had lawfully acquired the merchandise . The court rejected the applicant 's argument that all relevant events , before or after the statutory DATE period , should be taken into consideration .","On DATE ORG upheld ORG judgment .","On DATE the applicant brought a claim for damages against the ORG tax authority , the police and the prosecuting authorities in respect of the unlawful seizure of her merchandise and the authorities ' failure to allow the marketing of the alcoholic beverages before the expiry of their period of validity . She claimed the full value of the alcoholic beverages , stating that they had become improper for use , as well as compensation for loss of opportunity and moral damage .","DATE , CARDINAL adjournments were caused by failure to appear of CARDINAL or more representatives of the defendant State organs .","At the hearing on DATE the applicant requested the recusal of the presiding judge as he had participated in the administrative proceedings concerning the DATE seizure order against the applicant . The judge accepted the request and withdrew .","The next hearing was held on DATE . The applicant made requests for the collection of evidence .","A hearing was held on DATE .","The next hearing , listed for DATE , could not proceed as CARDINAL of the defendant State organs had not been summoned .","On DATE the court admitted documents in evidence , requested information about the pending criminal investigations and appointed an expert to report on the damage caused to the bottles still held by the tax authority and on the applicant 's loss of profit resulting from the seizure of her merchandise .","In DATE the applicant submitted to ORG a complaint under Article CARDINALa of the Code of Civil Procedure . In DATE ORG rejected the complaint .","Thereafter , ORG held hearings on DATE , CARDINAL DATE and CARDINAL DATE and on DATE , DATE , DATE , CARDINAL DATE , DATE , DATE and DATE .","It appears that most hearings were adjourned as the parties sought the production of additional documents and exchanged objections in respect of the admissibility of pieces of evidence .","At the hearing on DATE , the expert appointed to report on the damage to the merchandise and the applicant 's loss of profit declared that she had become a member of the Bar and could no longer act as an expert . The court appointed CARDINAL experts to present a report on the same subject .","At some of the hearings that followed , on DATE , DATE , DATE , CARDINAL DATE and DATE , the CARDINAL newly appointed experts complained that the defendant ORG bodies had not given them access to the relevant documents . The court issued disclosure orders .","Hearings were held on DATE , DATE and DATE and the examination of the case was again adjourned . The hearing held on DATE was adjourned as CARDINAL of the CARDINAL experts had not been present .","On an unspecified date DATE the experts appointed by the court submitted their report . The report only concerned analysis of financial documents concerning the activities of the applicant as a merchant and assessment of the loss of profit occasioned by the seizure of her merchandise . The experts did not provide information about missing and damaged bottles , stating that they would submit an additional report later .","On DATE the court examined and refused the defendants ' requests for the judge 's recusal and for suspension of the proceedings . The court also dealt with the defendants ' objections against the accuracy of the experts ' report and adjourned the matter for further deliberation .","The hearings listed for DATE and DATE did not proceed as the experts had not submitted their additional report .","The hearing listed for DATE was adjourned on unspecified grounds .","The next hearing was scheduled for DATE but was adjourned as the applicant 's lawyer had fallen ill . The court noted that CARDINAL of the experts appointed to present a joint opinion refused to work together and invited the applicant to propose another expert .","In DATE the newly appointed experts presented a report , which was discussed at the hearing held on DATE . The experts gave contradictory answers to some of the parties ' questions . Also , the defendants insisted on additional research by the experts . The court did not admit the report in evidence , instructed the experts to submit a new report clarifying their findings and adjourned the hearing until DATE .","On DATE the hearing was adjourned as CARDINAL of the experts had had an accident and was unable to attend .","On an unspecified date one of the experts was replaced .","On DATE the experts submitted their report .","At the hearing held on DATE the court noted that the report had been signed by CARDINAL of the experts only and had not been submitted sufficiently in advance of the hearing . It adjourned the examination of the case and scheduled the next hearing for DATE .","As a result of the seizure of her merchandise the applicant became insolvent . She eventually discontinued her commercial activities . In DATE her business was declared insolvent .","Pursuant to an amendment of CARDINAL DATE to LAW , as in force at the relevant time , commodities that have not been collected by their owner for DATE following their seizure by the tax authorities should be deemed abandoned and become ORG property ( Article GPE ) and additional provision CARDINAL ) , in force DATE and DATE ) . Pursuant to paragraph CARDINAL of the final and transitory provisions to the DATE amendment , in cases of seizures predating the amendment , the DATE period started to run from the date of the amendment 's entry into force ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90738","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF SOLOMONIDES v. TURKEY","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lived in GPE . He was the director of the private trading companies \" ORG \" , and \" Solomonidis & Kozolidis Ltd \" .","The applicant stated that he was the owner of CARDINAL plots of land in the Districts of GPE , GPE and GPE , in northern GPE . In support of his claim of ownership , he produced copies of the relevant affirmations of ownership issued by GPE .","The applicant claimed that from DATE onwards he had been deprived of his property rights , his plots of land being located in the area which was under the occupation and the overall control of the NORP military authorities . The latter had prevented him from having access to and use of his property .","In a letter of CARDINAL DATE the applicant \u2019s lawyer observed that the private trading companies \" ORG \" , and \" Solomonidis & Kozolidis Ltd \" were not the owners of the properties claimed in the application , the original and only owner being the applicant , Mr Antonakis Solomonides ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57713","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1991,"docname":"CASE OF VILVARAJAH AND OTHERS v. THE UNITED KINGDOM","importance":2,"conclusion":"No violation of Art. 3;No violation of Art. 13","judges":"C. Russo;R. Pekkanen","text":["The first applicant , PERSON , born in DATE , is a citizen of GPE , of NORP ethnic origin . He worked as an assistant in his father \u2019s shop in ORG , LOC , in the northern part of the island . On several occasions the NORP army had attacked his district , killing people and destroying property . His cousin and CARDINAL other men were killed by the army in DATE and the family shop was raided and damaged on CARDINAL DATE .","He stated that he was detained on CARDINAL occasions by naval forces in DATE and DATE and assaulted . On the first occasion he was driving a minibus which broke down close to a naval base . He and his passengers were detained by a navy patrol for TIME . He claimed to have been heavily beaten . On the second occasion , whilst driving the minibus , he was stopped by a naval patrol and detained for TIME . They accompanied the bus back to his home town of PERSON where they opened fire at random on people there . Fire was also exchanged between a NORP separatist group , ORG ( \" LTTE \" ) , and the naval personnel , who used the bus passengers as shields .","During a major NORP army offensive to retake GPE from the NORP , the first applicant \u2019s family lost their shop and belongings and were at serious risk of losing their lives . In DATE his father arranged with an agent in GPE for him to be sent to GPE . He travelled on his own passport to ORG on DATE . On DATE he travelled with a NORP passport ( provided by an agent in GPE ) to GPE via GPE . He arrived in GPE on DATE seeking entry to GPE as a visitor for DATE , in transit to GPE , GPE , where he said he was going for DATE . He was detained pending enquiries . On admitting that he was not the rightful holder of the NORP passport in which his photograph had been substituted for that of the true owner , he was refused leave to enter GPE , under paragraph CARDINAL of the Statement of Changes in Immigration Rules ( see paragraph CARDINAL below ) which requires that a person seeking admission must produce a valid passport or other identity document .","On DATE he requested asylum in GPE under the DATE LAW relating to LAW as amended by LAW ( \" the DATE LAW \" ) . On DATE he was interviewed by immigration officers in the NORP language with the assistance of an interpreter . He stated that it was unsafe for him to remain in GPE for the reasons outlined above .","The applicant \u2019s asylum request was then referred to LAW . However , they concluded that he had not shown that he had a well - founded fear of persecution for the purposes of the CARDINAL Refugee Convention . On DATE the Secretary of ORG refused his request for asylum . He was informed of this decision in the following terms :","\" You have applied for asylum in GPE on the grounds that you hold a well - founded fear of persecution in GPE for reasons of race , religion , nationality , membership of a social group or political opinion . You said it was unsafe for you to remain in GPE due to Government operations around GPE . You also said you had been detained on CARDINAL occasions in DATE and DATE for TIME respectively and that on CARDINAL DATE the army raided your family business . But it is noted that the incidents you have related were random and part of the army \u2019s general activities directed at discovering and dealing with GPE extremists and that they do not constitute evidence of persecution .","You have produced no other evidence in support of your application for asylum .","The Secretary of ORG has considered the individual circumstances of your case and in addition the situation in GPE and has concluded that you have not established a well - founded fear of persecution in GPE .","Accordingly your application for asylum is refused . Since you do not otherwise qualify to enter GPE , ORG has been instructed to arrange for your removal to GPE to which country you are returnable under para . CARDINAL of schedule QUANTITY DATE . \"","Arrangements for his removal to GPE were made for CARDINAL DATE . The applicant then instituted proceedings for judicial review in which he sought , unsuccessfully , to have the Secretary of ORG \u2019s decision quashed ( see paragraphs CARDINAL - CARDINAL below ) .","The applicant was returned to GPE on DATE . He was escorted by police officers , the Sri NORP authorities having been forewarned . His name was published in GPE newspapers . He was interviewed briefly on arrival by GPE immigration authorities at the airport . A member of ORG was also present at the airport on arrival . The removal expenses were paid by ORG and the first applicant had funds in excess of \u00a3 MONEY .","After his return an appeal was lodged in GPE by his solicitors under LAW of LAW DATE against the asylum refusal ( see paragraphs CARDINAL below ) . They went to GPE to interview and take statements from him . He confirmed that thanks to the publicity surrounding his case and the presence of the member of ORG he was given little trouble at the airport . He stated that he was questioned for TIME by LOC as to whether he had connections with NORP separatist groups like ORG Eelam ( \" PLOTE \" ) and the ORG , which he denied . The police noted his address and took his fingerprints .","The applicant stated that he returned to his native village to avoid the Sri NORP authorities and denunciation by the ORG with whom he had been associated , in fact , but who were now cooperating with the NORP Peace Keeping Forces ( \" IPKF \" ) in identifying their former members and alleged NORP members .","He also said that DATE after his return he was denounced to the ORG and summoned to the local Chief Officer \u2019s Office . He was accused of connections with the NORP and became frightened . However , he was allowed to return home after questioning . On a visit to GPE in DATE he was rounded up with other NORP and detained for TIME by the IPKF . They were paraded in front of masked men who identified certain persons . He was afraid they would make an error , but he was released .","The applicant recounted other incidents which led him to fear IPKF ill - treatment because of his earlier involvement with the ORG and the ORG \u2019s arbitrary manner of dealing with NORP . When he went to GPE to see his solicitors he had to go through numerous GPE and GPE checkpoints doubling the length of the TIME journey .","On DATE the Adjudicator found in the applicant \u2019s favour and he was subsequently allowed to return to GPE on DATE ( see paragraphs CARDINAL below ) . Shortly after his return he made a further application for asylum which is still under consideration . He has been granted exceptional leave to remain initially for DATE and thereafter until DATE .","The second applicant , PERSON , born in DATE , comes from GPE in the north of GPE , an area which had been under the control of the NORP when he was living there . He stated that in DATE the GPE army staged a reign of terror . People could not go out in the street . Young men were arrested without reason ; some were tortured or \" disappeared \" or were shot on sight . Everyone was suspected of being a GPE separatist and lived in fear . When the army conducted searches the applicant and his family hid in trenches . His house was searched regularly until DATE . It was destroyed in DATE . The family had to go for DATE without food and starved because it was dangerous to go out to fetch it . The army \u2019s DATE bombing of the NORP area was indiscriminate . It was this and damage to his home and business on DATE which made him decide to leave . He claimed to have been questioned by the police about the NORP , although he has never belonged to them .","The applicant left GPE having lost all his possessions apart from QUANTITY . He went to GPE where he was arrested by the police on CARDINAL DATE at his uncle \u2019s home . He stated that he was held for TIME and tortured , resulting in injury and scarring to his right leg .","On DATE the applicant travelled by air from GPE to ORG on his NORP passport . On DATE he then travelled with a false NORP passport , obtained through an agent in ORG , via GPE to GPE . He sought entry as a visitor for DATE , in transit to GPE , GPE .","The applicant was refused leave to enter by the GPE immigration authorities on DATE under paragraph CARDINAL of the Statement of Changes in Immigration Rules ( see paragraph CARDINAL above ) . He then revealed his GPE nationality and requested asylum . On DATE he was interviewed by immigration officers about his asylum application in the NORP language with the assistance of an interpreter . He explained his fear of persecution if returned to GPE .","His case was then referred to LAW . It was concluded that he had not demonstrated that he had a well - founded fear of persecution within the meaning of the CARDINAL Refugee Convention . On DATE the Secretary of ORG refused his asylum request . He was informed of this decision in the following terms :","\" You have applied for asylum in GPE on the grounds that you hold a well - founded fear of persecution in GPE for reasons of race , religion , nationality , membership of a social group or political opinion . The Secretary of ORG has considered your application . You said it was unsafe for you to return to GPE because of the Government operation around GPE . You stated that your house and business LOC had been destroyed by Government shelling . You also said that you had been detained for TIME in DATE and had been assaulted . But it appears that the destruction of your house and business resulted from a random shelling arising from civil disorder and it appears that your arrest and brief detention were part of the army \u2019s general activities directed at discovering and dealing with GPE extremists .","The Secretary of ORG has considered the individual circumstances of your case and in addition the situation in GPE and has concluded that you have not established a well - founded fear of persecution in GPE . Accordingly your application for asylum is refused . Since you do not otherwise qualify to enter GPE , ORG has been instructed to arrange for your removal to GPE to which country you are returnable under para . CARDINAL of schedule QUANTITY DATE . \"","Arrangements for his removal to GPE were made for CARDINAL DATE . The applicant then instituted proceedings for judicial review in which he sought , unsuccessfully , to have the Secretary of ORG \u2019s decision quashed ( see paragraphs CARDINAL - CARDINAL below ) .","The applicant was returned to GPE on DATE . His reception at the airport was the same as that of the first applicant ( see paragraph CARDINAL above ) . He was then interviewed by the Sri NORP police for TIME and fingerprinted . He stayed at his uncle \u2019s house in GPE for DATE until it was safe to travel to GPE .","After his return to GPE an appeal was lodged in GPE by his solicitors under LAW of LAW DATE against the refusal of asylum . They went to GPE to interview and take statements from him ( see paragraphs CARDINAL below ) . He told them that on DATE he was travelling to GPE by bicycle from his home when he was stopped at an IPKF checkpoint . GPE men and boys were lined up for identification by CARDINAL masked men , CARDINAL of whom picked out the applicant . He was taken with CARDINAL others to an ORG camp in a GPE house where he was beaten for TIME . Part of the time he was clubbed with sand - filled PVC pipes . At the same time questions were shouted at him about the ORG , of which the applicant denied any knowledge . He was kept in a small room without bedding or sanitary facilities , with CARDINAL other detainees who were receiving similar ill - treatment . Some of them were hung upside down and beaten . The applicant was beaten intensely on CARDINAL occasions over DATE for periods of TIME .","He was detained until DATE , and questioned by the same men . He lost QUANTITY in weight , had bad headaches and was very frightened . The NORP soldiers constantly told him that if he did not talk they would keep him locked up for ever . The detainees were given rice , dahl and chapatis and insufficient water . They became dehydrated and constipated . They were filmed and apparently later shown on television as surrendered ORG men . The applicant was rescued by members of his family who bribed the local IPKF commander with gold .","On release he was told to report DATE . He then fled to GPE . He stated that life there at that time was very tense for NORP . There was a constant danger of arbitrary arrest , detention and denunciation by informers . However , he felt safer in GPE than in GPE . To justify his stay in GPE he registered as a student .","On CARDINAL DATE the Adjudicator found in the applicant \u2019s favour and he was subsequently allowed to return to GPE on DATE ( see paragraphs CARDINAL below ) . Shortly after his return he made a further application for asylum which is still under consideration . He has been granted exceptional leave to remain initially for DATE and thereafter until DATE .","The third applicant , Mr PERSON , born in DATE , comes from LOC , where his family lives , in the north of GPE . In DATE he witnessed the killing of his brother by navy personnel . His brother was fishing in a boat with a friend off the coast at LOC . ORG personnel came by in a boat and shot and killed both of them without warning or reason .","In DATE security forces came to the area and rounded up male NORP , including the third applicant . They were detained for DATE and assaulted with rifle butts and sticks . Their names and family details were noted . Some of them were taken away by the army . In DATE CARDINAL male NORP , including the applicant , were detained in GPE . They were assaulted . The security forces took away CARDINAL people and shot and killed them DATE . The bodies were burned .","In DATE male NORP were also rounded up and detained for DATE . The applicant was again detained . CARDINAL people were taken away , shot and killed . The bodies were burned on the spot .","PERSON has been regularly subjected to air bombardment and shelling by the army . The applicant \u2019s family house was damaged during an air bombardment in DATE and the family had to move to another house in the area .","The applicant stated that he was in the ORG from DATE until he left GPE . He did some military training and was a sentry for the camp . He also carried communications for them . He claimed , however , never to have been involved in any violence or terrorist activities .","His father decided that the applicant should leave GPE as he feared for his son \u2019s safety as a young male GPE . Arrangements were made through a NORP agent in LOC for his son to leave the country . The applicant travelled to GPE on DATE and stayed with the agent until DATE . He travelled to GPE via GPE , GPE and GPE . On the way to GPE airport , the minibus in which he was travelling was stopped at an army checkpoint just before the airport . The applicant and the other passengers were accused of going for training with militants in GPE . They were taken to an office and held for TIME , questioned and fingerprinted .","The applicant was CARDINAL of a group of CARDINAL NORP who arrived at FAC , GPE , on CARDINAL DATE and claimed asylum . He originally stated that he was in transit to GPE . The CARDINAL NORP were all detained pending the proceedings .","DATE . He was interviewed by immigration officers in the NORP language with the aid of an interpreter . He described the events outlined above . At that stage he averred that he was not a member of the ORG and , in fact , did not make this claim to the NORP authorities until DATE as he feared it would have adverse effects on his asylum application . His case was referred to LAW . They concluded that the applicant had not established a well - founded fear of persecution within the meaning of the CARDINAL Refugee Convention and his application for asylum was refused on DATE . However , an application for leave to apply for judicial review was made to ORG and granted on DATE . On DATE ORG informed the applicant \u2019s solicitors that a fresh decision would be taken on the asylum claim .","Representations from GPE ( \" UKIAS \" ) were received and the applicant was re - interviewed about his asylum claim on DATE . The application for asylum was reconsidered in ORG but they again concluded that the applicant had not demonstrated that he had a well - founded fear of persecution . Details of the case were referred to the Secretary of ORG , who reached a similar conclusion . Accordingly , on DATE a refusal letter was served on the third applicant , which read as follows :","\" You have applied for asylum in GPE on the grounds that you hold a well - founded fear of persecution in GPE for reasons of race , religion , nationality , membership of a social group or political opinion . The Secretary of ORG has further considered your application . You said it was too dangerous to stay in GPE . People were being arrested indiscriminately and killed by the security forces . You also said that you had been detained on CARDINAL occasions DATE and that you had been detained for DATE after being arrested with your travelling companions on the way to GPE . Lastly you said your brother , GPE , had been shot by the navy in DATE . But it is noted that the experiences to which you refer were the result of civil disorder in GPE rather than persecution within the terms of LAW relating to ORG and that your arrests were part of the army \u2019s general activities directed at discovering and dealing with GPE extremists and that on each occasion you were released without charge after a short period . It is further noted that your brother was shot dead by the navy when he failed to obey a lawful order . The Secretary of ORG has considered the individual circumstances of your case and in addition the situation in GPE and has concluded that you have not established a well - founded fear of persecution in GPE . Accordingly your application for asylum is refused . Since you do not otherwise qualify to enter GPE , ORG has been instructed to arrange for your removal to GPE to which country you are returnable under para . CARDINAL of schedule QUANTITY DATE . \"","Arrangements for his removal to GPE were made for CARDINAL DATE . The applicant then instituted proceedings for judicial review in which he sought , unsuccessfully , to have the Secretary of ORG \u2019s decision quashed ( see paragraphs CARDINAL - CARDINAL below )","The applicant was removed to GPE on DATE . His reception at the airport was the same as that of the first applicant ( see paragraph CARDINAL above ) .","On DATE the applicant \u2019s representatives submitted a statement he had made to them about his treatment in GPE on his return there as of CARDINAL DATE . He alleged that on his return he was held by ORG ) for DATE and treated like a criminal whilst being interrogated about his reasons for having gone to GPE . He then stayed with his parents for DATE . On DATE whilst passing through a checkpoint he was identified by a masked man as having being involved with the NORP and detained by the ORG . He was interrogated about the NORP and tortured every four or five days . He was stripped and beaten with iron bars and sand - filled PVC pipes . Sometimes he was tied upside down and a fire , with chillies , lit underneath his head lasting TIME until he passed out . On CARDINAL occasions he was subjected to electric shock treatment to his genitals . He admitted his previous involvement with the ORG . He was released on DATE after his parents managed to bribe the Commanding Officer . He then spent DATE in hospital as he could hardly walk . However , he was rearrested on DATE by the ORG , accompanied by members of ORG ( \" EPRLF \" ) . He received the same ill - treatment as before and was released on DATE following a further bribe from his parents . He went into hiding for DATE and tried to travel to GPE but was cheated by an agent who left him in GPE . He then had to return to GPE in DATE and hid in GPE . There he was once beaten up by navy personnel . Since his return to GPE he stated that the ORG and ORG are still harassing his family .","Although the applicant \u2019s whereabouts were undisclosed for some time , he kept in contact with his solicitors , who lodged an appeal in GPE on his behalf against the refusal of asylum . This appeal was successful . The Adjudicator upheld his claims on CARDINAL DATE ( see paragraphs CARDINAL below ) . The applicant was subsequently allowed to return to GPE on DATE , where he was granted exceptional leave to remain initially for DATE and thereafter until DATE . Shortly after his return he made a further application for asylum which is still under consideration .","The fourth applicant , Mr PERSON , born in DATE , comes from ORG but received his schooling in LOC until DATE . He claimed to have been detained CARDINAL times by the Sri NORP armed forces : in DATE for DATE , in DATE for DATE , in DATE for DATE , in DATE for DATE and in DATE for DATE .","In DATE the army set fire to his school at LOC . DATE after the raid he was detained at the local army camp for TIME and accused of burning down the school . The principal of the school protested and secured his release .","In DATE , while the applicant was on his way to school by bus , an army helicopter bombed a bridge which the bus was to cross and everyone was ordered off the bus . He was detained at an army camp for TIME and threatened with ill - treatment . His elder brother in the meantime fled to GPE ( DATE ) where he was granted political asylum .","After DATE there was intensive shelling by the army and on DATE the family home in ORG was destroyed . He has not seen either his mother or sister since . His father returned to the family house to find it destroyed and on DATE took his son to NORP by bus . They were arrested at ORG , QUANTITY from GPE , and held at the army camp there for DATE .","DATE . They arrived in GPE on DATE , where his father arranged with an agent for his son to leave GPE . The applicant had felt insecure in GPE as he had GPE identity cards and the authorities knew he was not a local . He subsequently flew to GPE , arriving at FAC airport on CARDINAL DATE where he requested asylum . Several pages of his passport had been removed . He was CARDINAL of the group of CARDINAL Tamil asylum seekers ( see paragraph CARDINAL above ) .","The applicant was detained pending the proceedings . He was interviewed on CARDINAL occasions by an immigration officer in the NORP language with the assistance of an interpreter . During these interviews he described the events outlined above . He also stated that he had not been politically involved in GPE .","His case was then referred to LAW . They concluded that the applicant had not established a well - founded fear of persecution within the meaning of the CARDINAL Refugee Convention and his application was refused on CARDINAL DATE . However , an application for leave to apply for judicial review was made to ORG and granted on DATE . On DATE ORG informed the fourth applicant \u2019s solicitors that a fresh decision would be taken on the asylum claim .","DATE . Representations from ORG were received and the applicant was re - interviewed about his asylum claim on DATE . The application for asylum was reconsidered in ORG but they again concluded that he had not demonstrated that he had a well - founded fear of persecution . Details of the case were referred to the Secretary of ORG , who reached a similar conclusion . The fourth applicant was informed of this decision by ORG on DATE in a letter which read as follows :","\" You applied for asylum in GPE on the grounds that you have a well - founded fear of persecution in GPE for reasons of race , religion , nationality , membership of a particular social group or political opinion . The Secretary of ORG has further considered your application .","GPE has in DATE experienced considerable disorder which the GPE authorities have had to take measures to control . As a result of this disorder individuals of all ethnic groups have suffered . However the Secretary of ORG , having considered all the available evidence , does not consider that NORP in GPE are a persecuted group who have a claim to refugee status under the DATE LAW simply by virtue of their ethnic or national origins .","Nevertheless the Secretary of ORG does consider individual applications for asylum made by NORP from GPE to see whether they fall within the terms of the DATE ORG . This depends on the circumstances in the individual case .","In support of your application you said that your life was in danger in GPE and that your house had been damaged by army shelling . You also said that you had once been held up by the army with the others on your school bus for TIME , and also that the bus you were travelling on from GPE to GPE had been held up by the army for TIME . At your interview on DATE you added that you had been picked up by the army and held for TIME DATE .","However the Secretary of ORG has also taken account of the fact that the damage to your house had been caused by indiscriminate shellings , that neither you nor your travelling companions had been harmed in any way on the CARDINAL occasions you were held up and that you had not been harmed while detained for TIME DATE . Moreover GPE have stated on your behalf that you did not stay in GPE after reaching there on DATE because you felt insecure on account of holding a NORP identity card and because the authorities knew that you were not a local . You stated at a further interview in DATE that you thought your father , who had accompanied you to GPE and saw you off on the plane on DATE , had probably gone back to take up his job as a teacher in a government run school and had re - established contact with your mother and sister .","Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of ORG is not satisfied that you have a well - founded fear of persecution in GPE within the terms of the DATE ORG .","Since you do not otherwise qualify for leave to enter GPE , ORG have been instructed to arrange your removal to GPE to which country you are returnable under para . CARDINAL of schedule CARDINAL to LAW DATE . \"","Arrangements for the applicant \u2019s removal to GPE were made for DATE . The applicant then instituted proceedings for judicial review in which he sought , unsuccessfully , to have the Secretary of ORG \u2019s decision quashed ( see paragraphs CARDINAL - CARDINAL below ) .","The applicant was removed to GPE on DATE . His reception at the airport was the same as that of the first applicant ( see paragraph CARDINAL above ) . He was then interviewed aggressively by the Sri NORP police for TIME about his association with NORP groups and the travel agencies who had been involved in his escape to GPE . His fingerprints were taken .","After his return to GPE an appeal was lodged in GPE by his solicitors against the refusal of asylum . They went to GPE to interview and take statements from him . He told his solicitors that on his return he stayed with a family friend in GPE because no trace had been found of his family . He did not go out unless escorted by a NORP speaker who could deal with any trouble from the police . He had many difficulties because he did not have his identity card which had been lost by the ORG immigration service . He did not try to find his family because he could not get through the many checkpoints .","The applicant was arrested without any identity card by the police on or DATE , detained for TIME and questioned about his activities in GPE . A family friend persuaded the police to release him . The atmosphere in GPE for NORP was very tense since they were subject to attack by NORP . In DATE the applicant was again arrested by the police , detained TIME , beaten with belts and kicked for TIME . He was accused of hiding NORP terrorists from the ORG group . The family friend managed to bribe someone to obtain his release . The beating aggravated an ulcer condition that began when the applicant was in GPE . As a result he had to spend DATE in hospital .","The applicant was further distressed to see a television report in which CARDINAL of his relatives were shown to have been killed in crossfire between the ORG and the ORG QUANTITY from his home village .","The applicant \u2019s appeal in GPE was successful . The Adjudicator upheld his claims on CARDINAL DATE ( see paragraphs CARDINAL below ) . He was subsequently allowed to return to GPE on DATE , where he was granted exceptional leave to remain initially for DATE and thereafter until DATE . Shortly after his return he made a further application for asylum which is still under consideration .","The fifth applicant , PERSON , born in DATE , comes from FAC which is in the north west of GPE QUANTITY from GPE . This town was constantly bombarded by the ORG \u2019s military forces towards DATE . Many NORP were hiding in the jungle . His family home and shop were burnt down in DATE by soldiers . He believed that CARDINAL of his brothers had been shot dead by the army in DATE . He had already witnessed the army killing CARDINAL people in DATE . At that time the applicant was hiding in the jungle for his safety . He was also shot at by soldiers passing through his town . Since DATE problems have existed in the applicant \u2019s area with the town \u2019s NORP majority . Many people have been killed and buildings destroyed . There had been rumours of massacres elsewhere .","An army camp was situated QUANTITY from the applicant \u2019s home . Young men were particularly at risk . If the military saw them they were liable to summary arrest , torture or even murder . People ran away when they saw soldiers coming , although by the time the applicant left GPE they were mostly confined to their camps . Nevertheless soldiers would search for people in convoys . The applicant \u2019s area was controlled by GPE separatists . His house was searched DATE by the army . He was not a member of any political group or terrorist organisation .","The applicant paid an agent CARDINAL GPE rupees to help him leave GPE . He arrived at FAC on DATE and claimed asylum , although he had originally planned to go to GPE . Several pages had been removed from his passport . On DATE he was interviewed in the NORP language with the assistance of an interpreter . During this interview he described the events outlined above .","The applicant \u2019s request for asylum was then referred to LAW . They concluded that he had not demonstrated a well - founded fear of persecution within the meaning of the CARDINAL Refugee Convention . Details of the case were referred to the Secretary of ORG , who reached a similar conclusion . In a letter dated DATE , the applicant was informed of the refusal of his asylum request in the following terms :","\" You have applied for asylum in GPE on the grounds that you have a well - founded fear of persecution in GPE for reasons of race , religion , nationality , membership of a particular group or political opinion . GPE has in DATE experienced considerable disorder which the GPE authorities have had to take measures to control . As a result of this disorder individuals of all ethnic groups have suffered . However the Secretary of ORG , having considered all the available evidence , does not consider that NORP in GPE are a persecuted group who have a claim to refugee status under the DATE LAW simply by virtue of their ethnic or national origins .","Nevertheless the Secretary of ORG does consider individual applications for asylum made by NORP from GPE to see whether they fall within the terms of the DATE ORG . This depends on the circumstances in the individual case .","In support of your application you said that it was impossible to live in GPE because NORP are being persecuted . There was an army camp QUANTITY from your village and villagers were always being chased away by troops . You said that your GPE home was burnt down in DATE together with the rest of your village and that you had been questioned and threatened by troops in DATE and your shop had been burnt down . You also said that CARDINAL of your CARDINAL brothers had been shot dead by troops .","However the Secretary of ORG has also taken account of the fact that you lived safely in GPE for DATE following the destruction of your GPE home and your shop and that your parents have lived in a small house the other side of the forest from where they used to live and that you helped on your father \u2019s land . Your parents , CARDINAL other brothers and QUANTITY sisters , some married with families of their own have , on the information which you have provided , continued to live safely in GPE to the present time .","Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of ORG is not satisfied that you have a well - founded fear of persecution in GPE within the terms of the DATE ORG .","As you do not otherwise qualify for entry under LAW I therefore refuse you leave to enter . \"","Arrangements for the applicant \u2019s removal to GPE were made for DATE . The applicant then instituted proceedings for judicial review in which he sought , unsuccessfully , to have the Secretary of ORG \u2019s decision quashed ( see paragraphs CARDINAL - CARDINAL below ) .","The applicant was returned to GPE on DATE . His reception at the airport was the same as that of the first applicant ( see paragraph CARDINAL above ) .","On returning to GPE he had difficulties because , like the fourth applicant , he had no identity card . It had been temporarily lost by the ORG immigration service and was returned to him by DATE . He obtained a forged card and managed to escape arrest during numerous police searches . His brother joined the ORG and the applicant had money extorted out of him for their cause . He was suspected by the Sri NORP and NORP authorities and is still being sought by them . In DATE he fled to GPE after learning that his father and brother had been detained by the ORG .","Although his whereabouts were undisclosed for some time , the applicant kept in contact with his solicitors , who lodged an appeal in GPE on his behalf against the refusal of asylum . This appeal was successful . The Adjudicator upheld his claims on CARDINAL DATE ( see paragraphs CARDINAL below ) . The applicant was subsequently allowed to return to GPE on DATE , where he was granted exceptional leave to remain initially for DATE and thereafter until DATE . He made a further application for asylum in DATE which is still under consideration .","The first CARDINAL applicants instituted proceedings before ORG seeking leave to apply for judicial review of the Secretary of ORG \u2019s refusal to grant asylum . Their applications were refused by a single judge on CARDINAL DATE . Further applications to a single judge in ORG were also rejected on DATE . ORG refused to defer the removal of the first CARDINAL applicants , scheduled for DATE , to enable applications to be made to a full ORG on DATE . Applications were then made to ORG of ORG on TIME of CARDINAL DATE ( a DATE ) alleging that the Secretary of ORG \u2019s refusal to defer removal unreasonably denied the first CARDINAL applicants\u2019 right to renew their applications to ORG .","The Duty Judge accepted the submission and issued an injunction against their removal . On CARDINAL DATE ORG granted the applicants leave to apply for judicial review of the Secretary of ORG \u2019s decision .","After the refusal by the Secretary of ORG of the fourth and fifth applicants\u2019 application for asylum they too instituted proceedings for judicial review and were granted leave to apply .","DATE . All CARDINAL applications were dismissed by ORG on DATE by Mr Justice PERSON . On appeal , however , ORG quashed the decisions refusing asylum on CARDINAL DATE . The Secretary of ORG then appealed to ORG which , on CARDINAL DATE , gave judgment in his favour ( NORP v. Secretary of ORG for ORG , ex parte PERSON and conjoined appeals [ DATE ] CARDINAL All England Law Reports CARDINAL ) .","The applicants\u2019 case before ORG concerned the proper interpretation of LAW ) of the DATE Refugee Convention as amended which defines a refugee as a person who has a \" well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country ... \" .","ORG found that the test was an objective one and that there has to be demonstrated a reasonable degree of likelihood , or a real and substantial risk , that the person will be persecuted if returned to his own country . The evidence before ORG confirmed that in reaching his decision not to grant asylum the Secretary of ORG had applied the test in the DATE Refugee Convention . In the course of the judgment the following opinions were delivered :","Lord PERSON of GPE : \" The terms of [ the Secretary of ORG \u2019s ] decision letters make it clear that he has proceeded on the basis of the objective situation in GPE as understood by him . The affidavit of PERSON , an official of ORG , indicates that the Secretary of ORG took into account reports of the refugee unit of his department compiled from sources such as press articles , journals and ORG publications , and also information supplied to him by ORG and as a result of recent visits to GPE by ministers . It is well known that for a considerable time GPE , or at least certain parts of that country , have been in a serious state of civil disorder , amounting at times to civil war . The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them . These steps , together with the activities of the subversives , have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles . As the troubles occurred principally in areas inhabited by NORP , these are the people who have suffered most . The Secretary of ORG has in his decision letters expressed the view that army activities aimed at discovering and dealing with GPE extremists do not constitute evidence of persecution of NORP as such . This was not disputed by counsel for any of the applicants , nor was it seriously maintained that any sub - group of NORP , such as young males in the north of the country , were being subjected to persecution for any Convention reason . It appears that the Secretary of ORG , while taking the view that neither NORP generally nor any group of NORP were being subjected to such persecution , also considered whether any individual applicant had been so subjected and decided that none of them had been . Consideration of what had happened in the past was material for the purpose of assessing the prospects for the future .","It was argued that the Secretary of ORG \u2019s decision letters did not clearly indicate that he had applied the \u2018 real and substantial ORG test , but left it open that he might have applied a \u2018 more likely than not\u2019 test . But there is clearly to be gathered from what the Secretary of ORG has said that in his judgment there existed no real risk of persecution for a ORG reason . \"","Lord PERSON : \" In order for a \u2018 fear\u2019 of \u2018 persecution\u2019 to be \u2018 well - founded\u2019 there must exist a danger that if the claimant for refugee status is returned to his country of origin he will meet with persecution . The Convention does not enable the claimant to decide whether the danger of persecution exists . The Convention allows that decision to be taken by the country in which the claimant seeks asylum . Under the [ LAW of DATE applications for leave to enter GPE , including applications based on a claim to refugee status , are determined by the immigration authorities constituted by LAW . By the Rules made under LAW the appropriate authority to determine whether a claimant is a refugee is the Secretary of ORG . The task of the Secretary of ORG in the present proceedings was and is to determine in the case of each appellant whether the appellant will be in danger of persecution if he is sent back to GPE . Danger from persecution is obviously a matter of degree and judgment . The Secretary of ORG accepts that an appellant who fears persecution is entitled to asylum in this country unless the Secretary of ORG is satisfied that there is no real and substantial danger of persecution . The Secretary of ORG has concluded that there is no real and substantial danger of persecution ... In the present case an examination of the decision - making process does not disclose any error on the part of the Secretary of ORG or justify the court in contradicting his view that the applicants will not be in danger of persecution if they are returned to GPE . \"","Lord PERSON of Chieveley : \" First , I respectfully agree with my noble and learned friend Lord PERSON , for the reasons given by him , that the requirement that the applicant \u2019s fear must be \u2018 well founded\u2019 means no more than that there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason ; indeed , I understand the submission of counsel for the Secretary of ORG , that there must be a real and substantial risk of persecution , to be consistent with that interpretation . Second , it is not to be forgotten that the Secretary of ORG has in any event an overriding discretion to depart from the immigration rules and admit an applicant for refugee status if he considers it just to do so . Third , I am with all respect unable to agree with the view expressed by Sir PERSON that different tests are applicable under Art . CARDINAL and Art . CARDINAL of the Convention ( see [ DATE ] Weekly Law Reports ( ORG at CARDINAL ) . Article CARDINAL ( CARDINAL ) provides as follows :","\u2018 No Contracting State shall expel or return ( \" refouler \" ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion.\u2019","Sir PERSON suggested that , even if the Secretary of ORG decides that an applicant is a refugee as defined in Art . CARDINAL , nevertheless he has then to decide whether Art . CARDINAL , which involves an objective test , prohibits a return of the applicant to the relevant country . I am unable to accept this approach . It is , I consider , plain , as indeed was reinforced in argument by counsel for the [ ORG High Commissioner for Refugees ] with reference to the travaux pr\u00e9paratoires , that the non - refoulement provision in Art . CARDINAL was intended to apply to all persons determined to be refugees under Art . CARDINAL of the Convention . I can not help feeling , however , that the consistency between ORG . CARDINAL and DATE can be more easily accepted if the interpretation of well - founded fear in Art . CARDINAL ( A)(CARDINAL ) espoused by the Secretary of ORG is adopted rather than that contended for by the High Commissioner . \"","Following this decision the solicitors acting on behalf of all CARDINAL applicants wrote to ORG indicating that they would be making further representations and that they would be applying to ORG seeking an indication under Rule CARDINAL of its Rules of Procedure . They also sought ORG confirmation that no steps would be taken against their clients for DATE , which confirmation was given . The ORG refused the ORG request for an indication under Rule CARDINAL on DATE . Representations that they should not be removed were also made by ORG , ORG and a Member of ORG at the request of ORG GPE The Secretary of ORG considered that asylum candidates who failed to qualify for refugee status should be returned to GPE unless there were strong compassionate circumstances in any particular case . In the applicants\u2019 case he did not consider that such compassionate circumstances existed .","Following the applicants\u2019 removal to GPE their solicitors lodged an appeal against the asylum refusals to an Adjudicator in GPE , pursuant to LAW DATE . They filed voluminous documentary material concerning the past and present situation for NORP in GPE . None of this material was challenged by the Secretary of ORG \u2019s representatives and no other material upon which the latter based his decisions to refuse asylum was put before the Adjudicator . In a decision of CARDINAL DATE the Adjudicator accepted the ORG claim that they had left GPE for fear that as young NORP they were at risk of , inter alia , \" interrogation , detention and even physical harm \" . He largely believed the accounts given by the applicants of their personal situations :","- as regards the first applicant , the raid on the family business , the death of his cousin , his arrests and detention in DATE and later , on his return to GPE , his interrogation by the police ( but not his claim to membership of ORG ) ;","- as regards the second applicant , his family situation , the alleged detention and assault , destruction of his home and , on his return to GPE , his arrest and ill - treatment in GPE ;","- as regards the third applicant , his arrests , interrogations and death of his brother ( but not his claim to membership of the NORP ) ;","- as regards the fourth applicant , the destruction of his family home by shelling , the incidents he witnessed and , on his return to GPE , his detention several times due to his lack of an identity card ;","- as regards the fifth applicant , the arson of his home , the shooting dead of CARDINAL of his brothers and , after his return to GPE , the arrest of his family and relatives .","The Adjudicator also accepted that in general the victims of ill - treatment at the hands of NORP forces had been young male NORP and that excessive force had been used against non - combatants in the LOC by both NORP armed forces and the ORG afterwards .","Finally he concluded that the applicants had had a well - founded fear of persecution and he held , inter alia , as follows :","( CARDINAL ) that they were all entitled to asylum at the time of the Secretary of ORG \u2019s decision ;","( CARDINAL ) that the circumstances since that time had not materially changed ;","( CARDINAL ) that the Secretary of ORG \u2019s decisions in respect of all the applicants were not in accordance with the law ;","( CARDINAL ) that the applicants\u2019 appeals were accordingly allowed ; and","( CARDINAL ) that they should be returned to GPE with the minimum of delay .","The Secretary of ORG \u2019s appeal to ORG was rejected on DATE as being out of time , the DATE time - limit for lodging appeals having been missed due to an administrative error . On CARDINAL DATE the Secretary of ORG applied for judicial review of the Tribunal and Adjudicator \u2019s decisions . In particular he challenged the lawfulness or reasonableness of the directions that the applicants be returned to GPE .","Leave for judicial review was granted by Mr Justice PERSON on CARDINAL DATE and the case was heard on DATE by Lord Justice Lloyd and Mr Justice Auld . ORG upheld the decision of ORG . On DATE the Secretary of ORG applied for a stay of execution against the return of the CARDINAL applicants pending a possible appeal against the refusal of judicial review . This application was rejected on DATE .","On DATE ORG dismissed an appeal by the Secretary of ORG against the finding by Mr Justice Auld in the above proceedings that PERSON and PERSON were entitled to raise their asylum claim on appeal to the Adjudicator notwithstanding the fact that they had first presented forged NORP passports and sought leave to enter as visitors ( NORP v. ORG and Another , ex parte Secretary of ORG for ORG [ DATE ] I Weekly Law Reports CARDINAL ) .","GPE has a population of CARDINAL , of which PERCENT are NORP and PERCENT are ORG . The NORP are concentrated in particular areas , and in the northern peninsula of GPE account for PERCENT of the population . The history of the ethnic conflict between NORP and NORP goes back for generations , with NORP , anti - Tamil chauvinism being a major factor in GPE politics since DATE . CARDINAL result of the anti - Tamil sentiment in GPE has been a series of pogroms against NORP communities , particularly since DATE , and which increased dramatically in DATE , triggered off by the killing of CARDINAL GPE soldiers by a NORP liberation group . A state of emergency was proclaimed which is still in force . This resulted in considerable governmental violence against the NORP community , including organised massacres tolerated , if not approved of , by the Government .","Following an Accord which was signed between GPE and GPE on CARDINAL DATE ORG entered NORP areas with a view to protecting the NORP community and the NORP forces were to be returned to barracks . However , the IPKF became involved in fighting GPE extremists who rejected the Accord . Incidents of arrest , arbitrary detention , torture and destruction were reported , especially in DATE and DATE , with indiscriminate shelling and shooting in villages and towns in the north . There was a siege of GPE town during which it was estimated that CARDINAL civilians were killed by the ORG with a high level of atrocities committed during the assault on the town and thereafter . Identity cards were indispensable for NORP at this time , not only a GPE identity card , but also a card issued by the IPKF for anyone in the north , in order to avoid the risk of summary detention .","When the applicants were returned to GPE in DATE reports of civil disturbance were still rife . The respondent Government analysed the situation as follows : they accepted that there was widespread disruption and violence , particularly in the north and east of GPE , although large parts of the country remained quiet . The disturbances seem to have eased off in DATE . Having regard to the DATE Accord they considered that LOC and ORG were firmly committed to the restoration of law and order , civil rights for all communities and the democratic election of regional representatives . They were also aware of the voluntary repatriation of a large number of GPE NORP , mostly having taken refuge in GPE , under a scheme organised by the ORG High Commissioner for Refugees ( \" ORG \" ) in response to provisions in the Accord to this effect .","DATE . Under the ORG scheme which was begun in DATE , CARDINAL NORP had been repatriated by CARDINAL DATE . By DATE the total number of NORP voluntarily repatriated under this scheme was CARDINAL . The ORG has estimated that a further CARDINAL had made their own arrangements to return voluntarily to GPE by DATE . Some NORP countries were also beginning to send NORP back to GPE during the period DATE ( e.g. the GPE and GPE ) . Other countries had a policy of not returning NORP asylum - seekers at this time ( e.g. GPE and GPE ) .","In DATE ORG , ORG and the ORG each urged the respondent Government not to send any NORP back to GPE in view of the instability at that time , the uncertain effect of the July Accord and reports of human rights violations by both the NORP security forces and the IPKF .","DATE . A report by ORG of ORG dated DATE noted that there was widespread devastation of property as well as food and health problems . Although the situation had slightly eased since DATE , the view was maintained that the whole of the majority NORP areas was subject to guerilla attack , and counter - attack by the ORG , and that little resembling normal life was possible .","The information available to the Secretary of ORG about the situation in GPE came from numerous sources , including reporting telegrams from ORG in GPE and advice from ORG , information and documentary evidence from CARDINAL of asylum applicants from GPE , frequent contact with representatives of ORG , press articles , journals and reports from organisations like ORG directly concerned with the situation in GPE . ORG also supplied information derived from diplomatic representatives about developments in GPE .","In addition , Mr PERSON , Minister of ORG at ORG , visited GPE from DATE . He was accompanied by the most senior official in ORG , who had overall responsibility for asylum policy as well as the Head of ORG in ORG . In the course of his visit he met President PERSON and other government Ministers . He visited GPE and PERSON , meeting local officials , members of ORG , citizens , committees and representatives of the NORP .","Special provision is made for the position of refugees and for those seeking asylum in GPE in the \" Statement of Changes in Immigration Rules \" , ORG paper CARDINAL of CARDINAL DATE ( \" the CARDINAL Rules \" ) . Paragraph CARDINAL of the Rules provides as follows :","\" Where a person is a refugee full account is to be taken of the provisions of the LAW relating to LAW . DATE and PERSON . DATE ) . Nothing in these Rules is to be construed as requiring action contrary to GPE obligations under these instruments . \"","An application for asylum can be made by a person either on arrival at a port in GPE or after entering the country . If the application is made on arrival , it is , by virtue of section PERSON ) of LAW DATE ( \" LAW \" ) , dealt with by an immigration officer in accordance with paragraph CARDINAL of the DATE Rules , which reads as follows :","\" Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion . Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to ORG for decision regardless of any grounds set out in any provision of these Rules which may appear to justify refusal of leave to enter . Leave to enter will not be refused if removal would be contrary to the provisions of LAW relating to ORG . \"","In cases to which paragraph CARDINAL of the DATE Rules applies , an immigration officer at the port of entry will , with the aid , if necessary , of an interpreter , interview the passenger . Immigration officers are trained in asylum matters as part of their general training . A recent development has been the involvement of the ORG High Commissioner for Refugees in this training . The matter is then , in pursuance of paragraph CARDINAL of the Rules , referred to the specialist ORG . No decision on an asylum application is taken by an immigration officer at the port .","The specialist ORG has a large staff , who are divided into geographical sections under CARDINAL ORG responsible for LOC , LOC , LOC and LOC \/ the LOC . There is also a ORG which collates and disseminates background information on specific countries . An application is considered initially by an Executive Officer in the appropriate geographical section . It is then assessed with a recommendation to a Higher Executive Officer . He or she may decide to grant asylum or exceptional leave to enter ; a decision to refuse outright must be taken at at least Senior Executive level . Cases which are complex or about which an officer has particular doubts can be referred up to higher grade officers and , as in the ORG cases , to a Minister for decision .","These arrangements are subject to the referral arrangements with ORG described below ( see paragraphs CARDINAL - CARDINAL ) . Where in any case referred to ORG officials feel unable to grant an application following representations from ORG against refusal , the case will be referred to a Minister for decision and ORG will be informed of the issues to be put before the Minister .","DATE . If an application for asylum is refused before leave to enter GPE is given there is a right of appeal on the merits against that refusal CARDINAL of LAW to the appellate authorities set up under Part II of that LAW \" the appellate authorities \" ) , but such right may in general only be exercised from outside GPE . However , the refusal of asylum can also be challenged in judicial review proceedings ( see paragraphs CARDINAL below ) .","Appeals under LAW in the first instance are to an Adjudicator , who is a single judge , appointed by the Lord Chancellor . From there appeals lie , usually with leave , to a CARDINAL - person ORG . Members of the ORG are appointed by the Lord Chancellor and need not have legal qualifications , although a lawyer must preside at sittings .","By virtue of section CARDINAL of LAW , where directions are given for a person \u2019s removal from GPE on his being refused leave to enter , he may appeal to an Adjudicator against the directions on the ground that he ought to be removed ( if at all ) to a different country or territory . It is for the person concerned to find another country which will accept him .","The procedure for determining an appeal by an asylum seeker against a refusal of leave to enter is governed by ORG DATE ( ORG , DATE ) .","An appellant can be represented at the appeal by ORG which is funded by the Secretary of ORG under LAW of LAW for the purpose of enabling it to give free advice and assistance to those with appeal rights under LAW . Alternatively , an appellant can be represented by solicitors . Provision is made in the CARDINAL Rules for the submission of an explanatory statement by the Government ( rule CARDINAL) ; for the appellate authority to require the furnishing of particulars ( rule CARDINAL ) ; for the summoning of witnesses ( rule CARDINAL ) ; for each party to the appeal to be heard ( rule CARDINAL ) ; for the receiving of oral , written or other evidence ( rule CARDINAL ) ; and for the inspection of documentary evidence ( rule CARDINAL ) .","No provision is made in LAW for an appellant to return to GPE to attend his appeal , but his representations may be submitted in writing or through his representative . The appellant may seek an expedited hearing from the appellate authorities . If the appeal is successful , the Adjudicator under section CARDINAL of LAW , or the ORG LAW , shall make such directions for giving effect to the determination as is necessary . In the case of a successful appeal from abroad by an asylum seeker the direction may require the entry clearance officer to grant the necessary entry clearance to enable the appellant to return to GPE . Either party may appeal the ORG determination to ORG . In addition , the ORG \u2019s determination can be challenged by judicial review and legal aid is available , if necessary , for this purpose .","The question whether an application for asylum in GPE should be granted is one for the determination of the Secretary of ORG , subject to the above - mentioned statutory right of appeal on the merits . The courts ( as opposed to the appellate authorities under LAW ) have no power to determine whether a person is a refugee . However , the decision of the Secretary of ORG is subject to judicial review and may be quashed on a variety of grounds . Leave to apply for judicial review may be obtained at short notice and legal aid may be available to any person regardless of nationality .","The courts will examine whether the ORG Secretary has correctly interpreted the law in relation to the grant or refusal of asylum . If the courts are satisfied that he has made no error of law they may nevertheless review the refusal of asylum in the light of the \" ORG principles \" ( ORG v. ORG [ DATE ] I Kings Bench CARDINAL ) , namely , an examination of the exercise of discretion by the Secretary of ORG to determine whether he left out of account a factor that should have been taken into account or took into account a factor he should have ignored , or whether he came to a conclusion so unreasonable that no reasonable authority could have reached it . The applicants , on the other hand , contest the scope of judicial control of the merits of the Secretary of ORG \u2019s decision ( see paragraph CARDINAL below ) .","The extent and effect of judicial review was demonstrated by ORG in the PERSON case ( NORP v. Home Secretary , ex parte PERSON and Others [ DATE ] CARDINAL All England Law Reports CARDINAL ) when it was held that the ORG Secretary had indeed failed to appreciate a factor which he should have specifically dealt with . Lord PERSON stated ( at CARDINAL and CARDINAL ) :","\" ... all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by ORG or the Secretary of ORG ... The question whether an applicant for leave to enter or remain is or is not a refugee is only one , even if a particularly important one ... of a multiplicity of questions which immigration officers and officials of ORG acting for the Secretary of ORG must DATE determine ... determination of such questions is only open to challenge in the courts on well - known ORG principles ... there is no ground for treating the question raised by a claim to refugee status as an exception to this rule ...","Within those limitations the court must , I think , be entitled to subject an administrative decision to the more rigorous examination to ensure that it is in no way flawed , according to the gravity of the issue which the decision determines . The most fundamental of all human rights is the individual \u2019s right to life and when an administrative decision under challenge is said to be one which may put the applicant \u2019s life at risk , the basis of the decision must surely call for the most anxious scrutiny . \"","Lord PERSON added ( at page CARDINAL ) :","\" In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision making process . \"","In that case , following a careful review of the evidence the ORG quashed the removal orders in regard to CARDINAL of the applicants on the ground that relevant facts had not been taken into account .","The Secretary of ORG \u2019s refusal of asylum was also quashed by the courts following judicial review proceedings in R v. Secretary of ORG , ex parte ORG ( ORG decision of DATE ) , NORP v. Secretary of ORG , ex parte PERSON ( ORG decision of DATE ) , and ORG v. Secretary of ORG ( [ DATE ] ORG ) . In the NORP case the court reviewed the decision of the Secretary of ORG on \" ORG principles \" . In his judgment , Mr Justice PERSON said \" I am ... disturbed by some of the factors which do seem to have been taken into account and others which have not . It is , therefore , necessary to look at the respondent \u2019s evidence in some detail \" . He concluded that the Secretary of ORG \u2019s rejection of the claim for asylum should be quashed on the ground that \" in reaching his decision he took into account matters which ought not to have been taken into account and failed to take into account matters he should \" . A similar approach was adopted by ORG in the PERSON case . In the ORG case it was more a matter of the fairness of the procedures followed in reaching the decision to refuse political asylum in that ORG held that the applicant was given insufficient opportunity to give her explanation of the facts taken into account by the Secretary of ORG in assessing her credibility . In his judgment , with which the other CARDINAL judges agreed , Lord Justice May stressed that \" in these refugee asylum cases the court is entitled to , and should , subject administrative decisions to rigorous examination . The court should ensure that the decision- making process has been wholly fair throughout \" .","Although the Home Secretary has stated that there can be no expectation that asylum seekers will automatically be allowed to stay in GPE until proceedings are complete , the practice is that no applicant is removed once he has obtained leave to apply for judicial review . Moreover , in NORP v. Secretary of ORG , ex parte ORG ( [ DATE ] CARDINAL ORG Reports CARDINAL ) ORG held that a judicial review court has power to order a stay even where such an order would have the effect of restraining the ORG .","If an application for leave to apply for judicial review is refused a renewed application can be made to ORG . Even where , after a full hearing , an application for judicial review is dismissed the applicant can appeal on a point of law to ORG as of right and , subsequently , to ORG with the leave of ORG or ORG .","Since DATE where an asylum seeker is otherwise unrepresented , his case may be referred to the ORG subsidised GPE Advisory Service ( ORG ) for advice or other welfare services . In such cases the ORG regards ORG as the agent of the ORG .","Since DATE ( i.e. after the applicants\u2019 removal ) no category of asylum seeker is automatically excluded from the referral system although the Home Secretary retains the right at all times not to refer a case . Where a person can be sent to a third country where he does not fear persecution , ORG will be telephoned to establish whether they wish to interview that person , in which case DATE will be allowed for this to be done and representations made . Where an unrepresented person is likely to be sent back to a country where he claims to fear persecution , if ORG proposes to refuse the asylum application it will refer the case to ORG who will have DATE ( for those in detention ) or DATE ( for those not detained ) to make representations . The Secretary of ORG is obliged to consider and answer any representations made . The representations and the response to them may then be used as material against which the reasons and conclusions of the decisions taken may be tested on review , if asylum is refused .","Members of ORG frequently make representations to the Minister about unsuccessful asylum seekers or other expulsion cases . The first guidelines on the subject were issued in DATE . Prior to DATE a mere telephone contact could stop a removal pending further representations being made . On DATE the ORG Secretary announced that Members of ORG could no longer assume that \" stops \" would be accepted in all cases . Under revised guidelines for handling representations from Members which came into force on DATE removal may be deferred for DATE to enable representations to be made if new and compelling evidence has become available which has not already been taken into account .","The power to give or refuse leave to enter and to remain in GPE , in a case of a person not having refugee status under LAW , is exercisable at the discretion of the Secretary of ORG . Accordingly , if a person entering GPE is found not to be entitled to have refugee status , but nevertheless alleges that if he is returned to his own country he runs a real risk of being subjected to treatment inconsistent with the provisions of LAW ) of ORG , the Secretary of ORG , in the exercise of his discretion , could decide that exceptional leave to enter should be given . This entitles an asylum seeker to remain in GPE for a period of DATE in the first instance .","In DATE PERCENT of decisions in asylum cases were to give exceptional leave , usually on humanitarian grounds , and in PERCENT of the cases the entitlement to refugee status was accepted . PERCENT were outright refusals . In DATE CARDINAL NORP were given exceptional leave ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61059","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2003,"docname":"CASE OF POLTORATSKIY v. UKRAINE","importance":1,"conclusion":"No violation of Art. 3 with regard to alleged ill-treatment;Violation of Art. 3 with regard to lack of effective investigation;Violation of Art. 3 with regard to conditions of detention;Violation of Art. 8;Violation of Art. 9;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Nicolas Bratza","text":["On DATE the GPE - Frankivsk ORG ( o\u0431\u043bac\u043d\u0438\u0439 \u0441\u0443\u0434 ) convicted the applicant of the murder of CARDINAL persons , sentenced him to death and ordered the confiscation of his personal property .","On DATE ORG ( PERSON \u0441\u0443\u0434 ) upheld the judgment of the first - instance court . The applicant was transferred by the authorities responsible for the isolation block of the GPE - Frankivsk Regional Directorate of ORG ( PERSON \u0441\u043b\u0456\u0434\u0447\u043e\u0433\u043e \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440\u0443 \u0423\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f \u043c\u0456\u043d\u0456\u0441\u0442\u0435\u0440\u0441\u0442\u0432\u0430 \u0432\u043d\u0443\u0442\u0440\u0456\u0448\u043d\u0456\u0445 \u0441\u043f\u0440\u0430\u0432 ) to CARDINAL of the cells intended for persons awaiting execution of the death sentence .","A moratorium on executions was declared by the President of GPE on DATE . In judgment no . CARDINAL of DATE , ORG held that the provisions of LAW concerning the death penalty were contrary to LAW . As a result , death sentences were commuted to life imprisonment by PERSON no . CARDINAL of DATE .","On DATE the GPE - Frankivsk ORG commuted the applicant \u2019s death sentence to life imprisonment .","The facts of the case concerning the conditions of the applicant \u2019s detention in GPE FAC and the events during his time there are disputed .","The facts as presented by the applicant are set out in DATE below . The facts as presented by the Government are set out in DATE .","A description of the material submitted to the ORG and to the ORG will be found in DATE below .","The Commission , in order to establish the facts in the light of the dispute over the conditions of the applicant \u2019s detention and the events which occurred in GPE FAC , conducted its own investigation pursuant to former LAW ( a ) of the LAW . To this end , the ORG examined a series of documents submitted by the applicant and the Government in support of their respective assertions and appointed CARDINAL delegates to take evidence from witnesses at a hearing conducted at ORG in GPE on CARDINAL and CARDINAL DATE , and in GPE - GPE on CARDINAL and DATE . The ORG \u2019s assessment of the evidence and its findings of fact are summarised in DATE below .","On DATE the GPE - Frankivsk ORG convicted the applicant of the murder of CARDINAL persons , sentenced him to death and ordered the confiscation of his personal property . After the first - instance judgment , he was placed in a separate cell . He was not allowed to write to his family , nor could he be visited by his lawyer . He applied several times for permission to meet his lawyer .","On DATE ORG upheld the judgment of the first - instance court . On a decision of the authorities responsible for the isolation block of ORG , the applicant was transferred to a cell intended for prisoners awaiting execution of the death sentence . On DATE the applicant \u2019s lawyer applied to see the applicant in order to give him ORG decision in the case . The prison governor did not grant him permission to do so .","Conditions of detention of persons sentenced to death were governed by ORG \u201c the LAW \u201d ) and by an instruction of DATE ( \u201c the Instruction \u201d ) , whose content remained top secret . Under the terms of the ORG , exercise in the open air , watching television , buying newspapers and receiving food parcels from relatives were prohibited . The ORG therefore prevented the applicant from enjoying the rights guaranteed by LAW .","In a reply by the deputy head of ORG to a complaint by the applicant \u2019s father concerning the conditions of the applicant \u2019s detention , reference was made to the ORG . Moreover , according to information received by the applicant \u2019s father from the deputy governor of the prison , it appeared that LAW did not apply to him . Had the LAW been applicable to the applicant , he would have been entitled under sections CARDINAL(CARDINAL ) and CARDINAL to take DATE exercise in the open air , to receive parcels twice DATE and to watch television . However , this was strictly prohibited DATE . Up to DATE the applicant was also prohibited from sending and receiving letters . It was only then that the deputy governor of the prison orally informed the applicant \u2019s mother that he could send and receive letters . Moreover , his father was refused permission to visit him on CARDINAL DATE and DATE and DATE without any explanation from the prison authorities . DATE , instead of DATE visits which would last TIME , the applicant \u2019s father had been allowed to visit the applicant only once every three months for not more than one hour .","As regards visits from a priest , the applicant \u2019s father and members of the clergy repeatedly but unsuccessfully applied to the prison authorities and those responsible for the isolation block of the GPE - Frankivsk Regional Directorate of ORG for the applicant to be allowed to receive a visit from a priest .","The applicant finally stated that he had complained several times about the conditions in which he was being held . He had also unsuccessfully applied to the prison authorities for permission to lodge an application with ORG .","In a letter to ORG , the applicant \u2019s father stated that on DATE he had seen his son , who had told him about a check - up carried out by a commission from ORG in DATE . After the commission had left , the applicant had been transferred to a cell that was worse equipped and dirty . The window in the cell had been fully shuttered . The bucket for flushing the toilet had been taken away and the toilet could not therefore be cleaned properly , which had caused an unbearable smell . Moreover , the applicant had been given CARDINAL cl of hot water to prepare tea and milk . All his dishes had been removed . His Bible had been taken away . He had not been allowed to read periodicals and his notebook and calendar had been confiscated .","The Government stated that the legal status and conditions of detention of persons sentenced to death were governed by the LAW and LAW . Pursuant to section CARDINAL of the Act , a person sentenced to death was kept in custody away from other prisoners . The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in CARDINAL of the LAW : the cell measured QUANTITY m and had a bed , a table , a radio , sufficient natural and electric light , heating , running water and a toilet .","The applicant was provided with CARDINAL meals a day , standard clothing and footwear as well as other articles of everyday use . Medical assistance , treatment , prophylactic and anti - epidemic measures were arranged and implemented in accordance with the legislation on health protection .","According to section CARDINAL of the Act , prior to the sentence being carried out , prisoners sentenced to death were , as a rule , allowed visits from relatives and other persons not more than once a month , by written permission of the court within whose jurisdiction the case fell . The length of a visit was TIME maximum . After a case had been dealt with by an appellate court , visits by lawyers and legal assistants could be allowed by the head of ORG , the head of ORG or his deputy responsible for the isolation block . According to section CARDINAL of the Act , visits by defence counsel were allowed without any limits as to their number and length .","On DATE , after the first - instance judgment , the applicant \u2019s parents and lawyer received permission to visit him . The parents visited the applicant on DATE and in DATE . The applicant \u2019s lawyer visited him on DATE and on DATE . During the period from CARDINAL DATE to DATE , the parents applied to the GPE - Frankivsk Regional Directorate of ORG for permission to visit the applicant on DATE , DATE , DATE , CARDINAL May , DATE , DATE , DATE and DATE , and on DATE and DATE . They were granted permission for visits on DATE , DATE , DATE , CARDINAL May , DATE , CARDINAL DATE and DATE , and on DATE , DATE , DATE and DATE .","The applicant \u2019s lawyer applied for permission to visit the applicant on DATE , DATE , and DATE and DATE . Permission was granted for a first visit on DATE and on the other occasions as requested .","Persons sentenced to death were allowed to send an unlimited number of letters . During the period DATE - CARDINAL the applicant sent CARDINAL letters : CARDINAL letters related to his criminal case and CARDINAL letters were to his relatives . The applicant applied for the first time to ORG for permission to send letters to his relatives on DATE . Thereafter he sent letters to his parents on CARDINAL and DATE and DATE , and on CARDINAL , DATE , DATE and DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE and DATE . He received letters from his parents on DATE , DATE , DATE and DATE , and on CARDINAL and DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , CARDINAL and DATE , CARDINAL and DATE , DATE , DATE , CARDINAL , DATE and DATE , DATE , DATE , DATE and DATE and CARDINAL , DATE and DATE .","The Government further submitted that ORG had conducted a thorough investigation into the applicant \u2019s and his GPE complaints concerning the application of illegal methods of investigation in the applicant \u2019s case , namely torture and brutal and inhuman treatment . The allegations had not been proved and had been found unsubstantiated . In fact , complaints by the applicant , his parents , his representative and his defence counsel were received on DATE , DATE , CARDINAL , DATE and DATE , DATE , DATE and DATE , and on CARDINAL and DATE , CARDINAL May and DATE , and answered on DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , and on DATE and DATE . On DATE the exchange of letters and the proceedings concerning the complaints filed by the applicant and his parents were terminated pursuant to section CARDINAL of the Act .","In a letter of CARDINAL DATE the prison governor replied to a complaint lodged by the applicant \u2019s father on DATE informing him that persons sentenced to death were allowed to send CARDINAL letters DATE . He also stated that the applicant was aware of his rights and obligations .","In a letter of CARDINAL DATE the GPE - Frankivsk regional prosecutor informed the applicant \u2019s father that visits and correspondence of persons sentenced to death were governed by the ORG and not by LAW to which the applicant \u2019s father had referred in his complaint .","In a written complaint of CARDINAL DATE addressed to the regional prosecutor the applicant \u2019s parents stated , inter alia , that they had not seen the applicant for DATE , that since DATE they had not received any letters from him , that on DATE they had become aware that the applicant had been beaten and humiliated , that Mr PERSON , the deputy governor of the prison , had intervened during their visit on DATE when the applicant had spoken about his conditions of detention , and that , for a period of one year and DATE , the applicant had been denied the possibility of a visit from a priest , despite his requests .","In a letter of CARDINAL DATE the regional prosecutor informed the applicant \u2019s father that the applicant \u2019s visits and correspondence were governed by the national legislation and that the prison administration had acted within the limits of this legislation .","On DATE the GPE - GPE deputy regional prosecutor sent a report to ORG . The report concerned the findings of the investigation carried out following the complaint by the applicant \u2019s father about allegedly unlawful acts by the prison authorities in respect of the applicant \u2019s correspondence and visits . The report concluded that the investigation had not established any violation of the applicant \u2019s rights by the prison authorities .","On DATE the applicant \u2019s father sent a complaint to Mr PERSON , the head of ORG for the Execution of Sentences , to which the latter replied on DATE . The allegations he raised were similar to those in his complaint to the regional prosecutor of CARDINAL DATE . Mr PERSON replied that the applicant had been placed in solitary confinement because he had broken the rules . Furthermore , an investigation had not established that any physical force had been used against the applicant or that the prison authorities had humiliated him or restricted his rights , as was confirmed by the applicant himself . The applicant \u2019s father was also informed that visits , including visits by a priest , could be allowed by the GPE - Frankivsk Regional Directorate of ORG .","On DATE the applicant \u2019s parents submitted a request to the regional prosecutor , ORG of ORG and the prison governor that a commission of independent doctors be set up in order to examine the applicant \u2019s state of health . They alleged that the inmates of the prison had been tortured , which resulted in a suicide attempt by CARDINAL of them or an attempt on his life . On DATE the applicant \u2019s parents were informed by the prison governor that their request had been refused on the grounds that there had been no sign of torture or of the use of any other physical violence against the applicant and that his state of health was satisfactory .","On DATE and DATE the applicant \u2019s parents sent a letter to PERSON , then President of ORG of ORG . They complained of torture inflicted on the applicant and one of his fellow inmates , Mr Kuznetsov , which had resulted in a suicide attempt by the latter , and alleged that they had been taken to hospital and that Mr Kuznetsov had been paralysed . The parents further complained that they had been prevented from seeing the applicant .","In a letter of CARDINAL DATE the applicant \u2019s parents informed the ORG that \u201c in establishment GPE CARDINAL\/CARDINAL in GPE there [ had ] been an attempt to execute the unjustly condemned PERSON and ORG illegally , and [ that ] the Government [ had ] tried to conceal the fact \u201d .","A handwritten medical report issued on DATE was signed by the applicant . The report stated that the applicant did not show any signs of having been beaten and that his state of health was satisfactory .","In a handwritten statement of CARDINAL DATE the applicant said that he had been treated properly by the prison authorities , that no physical violence had been employed , that all disciplinary measures imposed on him had been justified and that his GPE complaints had not been substantiated .","ORG for the Execution of Sentences of ORG issued a report on DATE in response to the applicant \u2019s father \u2019s complaint about alleged torture and his request for a commission of independent doctors to examine the applicant \u2019s state of health . The report stated that on DATE the applicant had been examined by the prison doctors who had found no signs of physical injury . It also stated that the applicant denied that he had been tortured .","In a letter of CARDINAL DATE the deputy head of ORG informed the applicant \u2019s mother that her complaint concerning torture to which the applicant had allegedly been subjected had been examined and found to be unsubstantiated . A medical examination of the applicant had not shown any signs of torture . Accordingly , there was no reason to set up a medical commission to investigate the allegations .","A letter of CARDINAL DATE from the deputy regional prosecutor to ORG reported on the findings of the investigation carried out in connection with the applicant \u2019s father \u2019s complaint about restrictions on the applicant \u2019s correspondence and visits , the interference by the prison authorities during the applicant \u2019s GPE visit on DATE and the physical torture inflicted on the applicant . The letter said that , as regards the restriction on the applicant \u2019s correspondence and visits , the father had wrongly relied on the LAW , which did not apply to that category of prisoners , that the interference by a prison official had been justified , and that on DATE the applicant had undergone a thorough medical examination which had not established any physical injuries . Finally , it explained that the applicant had been placed in solitary confinement on CARDINAL DATE because he had broken the prison rules by refusing to let himself be examined by a prison warder upon his return from a DATE walk outside the cell .","In a letter of CARDINAL DATE the deputy regional prosecutor replied to the applicant \u2019s mother \u2019s complaint about the physical torture allegedly inflicted on the applicant and to her request for a medical examination of the applicant . He stated that on DATE the applicant had undergone a medical examination which had established that the allegations were unsubstantiated . The medical report had been confirmed and signed by the applicant .","In a letter of CARDINAL DATE the regional prosecutor informed the applicant \u2019s father that his allegations about illegal acts on the part of the prison authorities had been found to be unsubstantiated .","In a letter of CARDINAL DATE the deputy head of ORG informed the applicant \u2019s representative , PERSON , that he could not be granted permission to visit the applicant as the latter had already had a visit from his relatives DATE .","In a letter of CARDINAL DATE from ORG for the Execution of Sentences the applicant \u2019s father was informed that a thorough investigation had proved that his complaint about an illegal attempt to execute his son was unsubstantiated and that his son \u2019s state of health was satisfactory .","DATE . On DATE the applicant requested permission from the head of ORG to see a priest . His request was granted and he saw a priest on DATE .","In a letter of CARDINAL DATE the prison governor informed the applicant \u2019s father that his complaint of CARDINAL DATE had been examined . He stated that persons sentenced to death were allowed to receive CARDINAL parcels a year but no food parcels .","In a decision of CARDINAL DATE ORG rejected a criminal complaint by the applicant \u2019s parents against the deputy regional prosecutor . He refused to institute criminal proceedings against the latter on the ground that there was no evidence of his having committed an offence . He stated , inter alia , that the LAW did not apply to the conditions of detention of death - row prisoners . These were governed by the ORG , which was covered by the rules on ORG secrecy .","According to the prison records , the applicant \u2019s parents applied to visit the applicant on DATE , and on DATE , DATE , DATE , CARDINAL DATE , DATE and DATE . Permission was given on DATE , and on DATE , DATE , DATE , DATE and CARDINAL DATE for visits which took place on DATE and CARDINAL March , DATE , DATE and CARDINAL DATE and on DATE . The request of CARDINAL DATE was not granted .","According to the prison records , the applicant sent letters to his parents on DATE , DATE and DATE , and DATE , and on CARDINAL , DATE , DATE and DATE , DATE , DATE , DATE , CARDINAL May , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE and DATE . He received letters from them and other persons on CARDINAL and DATE , DATE , DATE and DATE , and on CARDINAL and DATE ( CARDINAL letters ) , CARDINAL , CARDINAL , DATE and DATE , CARDINAL , DATE and DATE , DATE , DATE , DATE , DATE and DATE , DATE , CARDINAL , DATE and DATE , CARDINAL , DATE and DATE , CARDINAL DATE ( CARDINAL letters ) , DATE , CARDINAL , DATE ( CARDINAL letters ) and CARDINAL DATE , DATE , DATE , DATE , DATE and DATE , DATE , DATE and DATE .","In an undated document Mr PERSON , the deputy head of the isolation block , declared that during the period DATE and DATE , neither the applicant nor his parents had asked for permission for the applicant to see a priest . He further declared that during the said period no member of the clergy had asked for such permission . He signed the declaration .","According to the applicant \u2019s medical card , the applicant was X - rayed and blood - tested on DATE . On DATE , CARDINAL and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE , DATE and DATE the applicant was seen by a prison psychiatrist .","In a written request of CARDINAL DATE to the head of the GPE - Frankivsk ORG for the Execution of Sentences of ORG , PERSON , the applicant \u2019s father , in his capacity as his legal representative , asked for a confidential meeting with the applicant in order to discuss issues concerning his application pending before ORG . On DATE , following a further request lodged on DATE , he was granted permission for a normal visit on DATE .","On DATE the applicant \u2019s father complained to the Deputy Minister of the Interior that his request of CARDINAL DATE for a confidential meeting had remained unanswered .","In a letter of DATE the deputy head of ORG for the Execution of Sentences , Mr PERSON , replied that PERSON Boyko had given the applicant \u2019s father permission to visit the applicant on DATE and that the visit had taken place as scheduled . He added that in accordance with LAW , a lawyer could be given permission for a confidential meeting with his client on presentation of his licence and identity card .","Since the facts of the case were disputed , the ORG conducted an investigation , with the assistance of the parties , and took oral evidence from the following witnesses : the applicant ; the applicant \u2019s parents ; PERSON PERSON , Deputy Minister of ORG ; PERSON , Deputy Prosecutor - General ; Mr PERSON , Deputy Minister of the ORG ; Mr PERSON , the governor of ORG ; Mr PERSON , prison doctor ; Mr PERSON , medical assistant ; Mr PERSON , assistant to the prison governor , who was on duty on DATE ; Mr PERSON , assistant to the prison governor , who was on duty during TIME DATE ; PERSON , the deputy governor of the prison ; Mr PERSON , the deputy head of the isolation block ; Mr PERSON , the head of ORG and ORG ; Mr PERSON , the deputy head of the GPE - Frankivsk Regional Directorate of ORG ; and PERSON , the head of the GPE - Frankivsk ORG for the Execution of Sentences of ORG .","The Commission \u2019s findings may be summarised as follows .","The applicant gave evidence before the delegates that he had been beaten on DATE after the visit from his parents on DATE . During that visit , he had said to his parents that he had been beaten and called a beast . The applicant \u2019s parents stated before the delegates that they had been told by their son on DATE that he had been beaten and humiliated . The ORG observed , however , that the applicant denied before the delegates that he had been beaten before CARDINAL September CARDINAL . It considered , therefore , that it had not been established that the applicant had been beaten before CARDINAL September CARDINAL .","As to the events on DATE , the applicant stated before the delegates that , after the visit from his parents on that date , he had been taken to the \u201c cinema room \u201d where CARDINAL persons , including PERSON , the deputy head of the isolation block on duty , were waiting for him with clubs . He had been asked CARDINAL times to tell everything , but had refused and had been struck on his legs , hips , back and chest . He had returned to his cell and had written until TIME on CARDINAL sheets of paper which had been included in a file .","The applicant further stated that he had been beaten on CARDINAL , DATE and DATE . DATE , during a technical search of his cell , he had been taken out and ordered to get undressed so that his clothes could be checked . When he was naked , he had been beaten . He had been ordered to lie down on the floor with his face to the ground and his hands behind his head . He mentioned the name of ORG to the delegates .","The Commission considered that the applicant \u2019s account contained a number of details and elements which it would not have expected to find in a fabricated story . It noted , however , that there was no record of any occurrence connected to the ill - treatment described by the applicant . The ORG accepted that the applicant may have been afraid to complain or to write to anyone , as he said . However , it accepted this argument with difficulty , having regard to the fact that he had not been scared when he had told his parents on DATE that he had been beaten . Moreover , the prison psychiatrist saw him on DATE and had not recorded any problems regarding his state of health or any injuries . The ORG added that the medical report of DATE , which the applicant had signed , concluded that he did not show any signs of having been beaten and that his state of health was satisfactory .","The Commission further noted that the applicant had signed a written statement on DATE to the effect that he had been treated properly by the prison authorities , that no physical violence had been used against him , that all disciplinary measures imposed on him had been justified and that his GPE complaints had not been substantiated . It took into account the fact that , before the delegates , the applicant had denied the contents of his statement , and pointed out that the practice of the prison authorities to require an inmate to confirm in writing that he had been treated properly by prison officers gave rise to suspicion .","As to the applicant \u2019s GPE submission before the delegates that , after the alleged beatings and torture on DATE , he had been transferred to ORG TIME of CARDINAL DATE and had been placed in the intensive care unit where he had been given a blood transfusion , the ORG observed that , although the applicant had maintained that he had been beaten after his GPE visit on DATE , he had denied that he had been transferred to hospital . This was corroborated by the statements of the prison doctor , the medical assistant , the governor \u2019s assistant on duty at the time and the deputy governor , all of whom had been heard by the delegates . In addition , there was no documentary evidence proving that the applicant had been taken to hospital on the aforesaid date . ORG did not consider the GPE evidence on this point convincing or reliable .","The Commission found that there was no medical or other material evidence establishing that the applicant had sustained injury as a result of ill - treatment by prison officers in GPE FAC , as he had alleged . It had regard to the fact that the applicant had denied that he had been beaten before CARDINAL September CARDINAL and had been transferred to hospital after that date , and that the absence of any use of force by prison officers on CARDINAL , DATE , DATE and DATE had been supported by the oral statements of the witnesses heard by its delegates . The Commission therefore found it impossible to establish , beyond reasonable doubt , that the applicant had been subjected to ill - treatment in prison as he had alleged .","The applicant \u2019s parents sent a complaint to the regional prosecutor on DATE , claiming , inter alia , that they had become aware that the applicant had been beaten and humiliated by prison officers . They made similar allegations to the head of ORG for the Execution of Sentences on DATE . On DATE the latter informed the applicant \u2019s father that the investigation had not established that any physical force had been used against his son or that the prison authorities had humiliated him or restricted his rights . He also stated that this finding had been confirmed in writing by the applicant himself .","DATE . On DATE the applicant \u2019s parents requested the regional prosecutor , ORG of ORG and the prison governor to set up an independent medical commission in order to examine the applicant \u2019s state of health . They alleged that the prison \u2019s inmates had been tortured , resulting in a suicide attempt by CARDINAL of them , Mr GPE , or in an attempt on his life . On DATE the applicant \u2019s mother was informed by the deputy head of ORG that her complaint concerning the alleged torture of the applicant had been examined and found to be unsubstantiated and a medical examination of the applicant had not revealed any signs of torture . There was , accordingly , no reason to set up a medical commission to investigate her allegations . On DATE the prison governor informed the applicant \u2019s parents that their request had been refused on the grounds that there was no sign of torture or the use of any other form of physical violence against the applicant and that his state of health was satisfactory . In a letter of CARDINAL DATE to the applicant \u2019s parents , the deputy regional prosecutor confirmed that on DATE the applicant had undergone a medical examination which had established that the GPE allegations were unsubstantiated . Moreover , on DATE the deputy regional prosecutor sent a letter to ORG which reported on the results of the investigation carried out in connection with , inter alia , the allegations that the applicant had been physically tortured . The letter confirmed that on DATE the applicant had undergone a thorough medical examination which had not revealed any physical injury .","The Commission noted that on DATE the applicant \u2019s father had received a letter from ORG for the Execution of Sentences stating that a thorough investigation had proved that his complaint about an attempt to execute his son was unsubstantiated and that the latter \u2019s state of health was satisfactory . The domestic investigation had then ended on DATE with a decision by ORG on the applicant \u2019s GPE criminal complaint against the regional prosecutor . ORG had refused to institute criminal proceedings on the ground that no criminal offence had been established .","The Commission found that there were no contemporaneous records giving details of any investigation which the domestic authorities had carried out into the applicant \u2019s GPE allegations of the events in DATE . It had not seen a single document proving that an investigation had been carried out by any domestic authorities other than those directly involved in the facts of which the applicant \u2019s parents complained . Moreover , the medical report of QUANTITY DATE had been drafted DATE after the applicant \u2019s alleged ill - treatment and the applicant had not been seen by the prison doctor or prison psychiatrist DATE and DATE .","The Commission found that the CARDINAL death - row inmates at FAC , including the applicant , were being kept in single cells without the opportunity to communicate with other inmates . The applicant \u2019s cell measured CARDINAL x QUANTITY There was an open toilet , a washbasin with a cold - water tap , CARDINAL beds , a table and a little bench , both fixed to the floor , central heating and a window with bars . The applicant had some books , newspapers , a chess set , a stock of soap and toilet paper , some fruit and other food . During the delegates\u2019 visit on CARDINAL and DATE , the cell had been overheated , particularly in comparison with other rooms in the prison . The light was on TIME a day and the central radio was switched off at TIME . The inmates were frequently observed by prison warders through a spy hole in the door of the cell , which deprived them of any kind of privacy . The cell was freshly painted , from which the inference might be drawn that conditions had been worse prior to the delegates\u2019 visit . The ORG accepted the applicant \u2019s evidence that DATE there had been no tap or washbasin in his cell , but only a small pipe on the wall near the toilet , that the water supply could only be turned on from the corridor , that the walls were covered with faeces and that the bucket for flushing the toilet had been taken away . The Commission found the applicant \u2019s evidence \u2013 which was not contested by the Government \u2013 persuasive .","The Commission also accepted the applicant \u2019s evidence that , until DATE , the window in his cell had been shuttered and that he had not been allowed to take DATE outdoor walks .","Concerning the applicant \u2019s GPE requests to visit him , the Commission found that , apart from the GPE request of DATE , all had been granted . The parents had applied to visit their son on DATE and on DATE , DATE , DATE , DATE and DATE . Permission had been given on DATE and on DATE , DATE , DATE , DATE and DATE for visits which had taken place on DATE and CARDINAL March , DATE , DATE and CARDINAL DATE and DATE . The Commission noted that the GPE requests to visit the applicant had mostly been granted for DATE after the request had been made . Moreover , CARDINAL warders had been present during the visits , who were authorised to interrupt the conversation if they considered that the parents or the applicant had said anything \u201c untrue \u201d .","Regarding the applicant \u2019s correspondence , the ORG noted that the applicant had applied for the first time to ORG for permission to send a letter to his relatives on DATE . Thereafter he had sent letters to his parents on CARDINAL and DATE , DATE , and on DATE , DATE , DATE and DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE and DATE . He had received letters from his parents on DATE , DATE , DATE and DATE , and on CARDINAL and DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , CARDINAL and DATE , CARDINAL and DATE , DATE , DATE , CARDINAL , DATE and CARDINAL DATE , DATE , DATE , DATE and DATE and CARDINAL , DATE and DATE .","The Commission could not establish with sufficient clarity whether the applicant or his parents had asked for permission for a priest to come to see the applicant . It nevertheless found that while the applicant had seen a priest on DATE following his request of CARDINAL DATE , there had been no regular visits to inmates by any chaplain .","DATE . Under LAW and DATE , the LAW is directly applicable . There is a guaranteed right to bring an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of LAW .","Article CARDINAL \u00a7 CARDINAL provides that international treaties , which are in force and agreed on as binding by the Verkhovna Rada ( parliament ) of GPE , are part of the national legislation .","LAW prohibits censorship .","Under LAW the legal order in GPE is based on the principle that no one may be forced to do what is not provided by law . State authorities and local self - government bodies and their officials are required to act exclusively in accordance with this principle , within the limits of their authority , and in the manner provided by the LAW and the laws of GPE .","Article CARDINAL provides that human and ORG rights and freedoms are guaranteed and may not be reduced by the adoption of new laws or the amendment of those that exist .","Under LAW and CARDINAL no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law . Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention , apprised of his rights and , from the moment of detention , must be given the opportunity to defend himself in person or to have the assistance of a lawyer .","Under LAW and CARDINAL , everyone is guaranteed the right to challenge the decisions , actions or omissions of ORG authorities , local self - government bodies and officials and officers of courts of law . After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which GPE is a member or participant .","Under LAW everyone has the right to legal assistance . Such assistance is provided free of charge in cases provided by law . Everyone is free to choose who is to defend his rights . In GPE , the Bar ( \u0430\u0434\u0432\u043e\u043a\u0430\u0442\u0443\u0440\u0430 ) ensures the right to a defence against charges and the provision of legal assistance before the courts and other ORG authorities .","Article CARDINAL \u00a7 CARDINAL provides that a convicted person enjoys all human and ORG rights , subject only to restrictions provided by law and determined by a court ruling .","According to LAW , human and ORG rights and freedoms guaranteed by LAW may not be restricted , except in cases provided by LAW .","Conditions on death row in the NORP prison system were governed successively by ORG on conditions of detention of persons sentenced to capital punishment ( \u201c the Instruction \u201d ) and by LAW of DATE on the conditions of detention of persons sentenced to capital punishment in the isolation blocks ( \u201c the Temporary Provisions \u201d ) .","The Instruction provided that after the sentence had become final persons sentenced to death were to be kept in isolation from other prisoners in specially designed cells . Save in exceptional cases , there were to be CARDINAL such prisoners in one cell . The cell area allocated to CARDINAL prisoner in a single cell had to be not CARDINAL sq . m and in a double cell not CARDINAL sq . m. Prisoners were provided with an individual sleeping place and with bed linen . They had to wear a uniform reserved for especially dangerous reoffenders . Reference was also made to their legal status and obligations . The ORG determined the frequency of visits from relatives and the number of letters they could send and receive : they were allowed CARDINAL visit per month and could send CARDINAL letter per month . There was no limitation on the correspondence they could receive . They could receive CARDINAL small packets a year . They were allowed a DATE TIME walk in the fresh air . Outside their cells , they were handcuffed . They were not allowed to work .","Prisoners were also allowed to read books , magazines and newspapers borrowed from the prison library and\/or bought through the prison distribution network ; they could receive money transfers ; they could keep personal objects and food in their cells , and buy food and toiletries in the prison shop DATE ( up to the value of the statutory minimum wage ) , and play board games . They could meet their lawyers in accordance with the national legislation . Medical treatment was provided also in accordance with the national legislation .","Prisoners could lodge complaints with the ORG authorities . Such complaints had to be dispatched within DATE . Complaints addressed to the public prosecutor were not censored .","The Temporary Provisions extended the rights of persons sentenced to death compared with the ORG . In particular , prisoners were allowed to have CARDINAL ORG sleep during TIME ; they could receive CARDINAL parcels and CARDINAL small packets per year , buy food and toiletries in the prison shop ( up to the value of PERCENT of the statutory minimum wage ) , pray , read religious literature and have visits from priests , and address written complaints to the ORG authorities . They were allowed to send and receive letters without any limitation and to have DATE visits of TIME from their relatives . A prison official had to be present during those visits . Meetings with lawyers in order to provide prisoners with legal aid were organised in accordance with the correctional - labour legislation .","According to LAW , pre - trial detention is a preventive measure applicable to an accused , a defendant , a person suspected of having committed a crime punishable with imprisonment or a convicted person whose sentence has not yet been enforced .","NORP Under LAW ) of the LAW , persons sentenced to death , but whose sentence had not become final , were to be held separately from all other prisoners .","Section CARDINAL(CARDINAL ) of the LAW provides , inter alia , that detainees have the right ( a ) to be defended in accordance with the rules of criminal law ; ( b ) to be acquainted with the rules of detention ; ( c ) to take a TIME DATE walk ; ( d ) to receive DATE a parcel weighing QUANTITY and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery ; ( e ) to buy food and toiletries to the value of DATE statutory minimum wage ( to be paid for by written order ) , as well as unlimited amounts of stationery , newspapers and books in prison shops ; ( f ) to use their own clothing and footwear and to have with them documents and notes related to their criminal case ; ( g ) to use television sets received from relatives or other persons and board games , newspapers and books borrowed from the library in their previous place of detention or bought from shops ; ( h ) individually to perform religious rites and use religious literature and objects made of semi - precious materials pertaining to their beliefs , provided that this does not lead to a breach of the rules applicable to places of pre - trial detention or restrict the rights of others ; ( i ) to sleep TIME a night , during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency ; and ( j ) to lodge complaints and petitions and send letters to the ORG authorities and officials in accordance with the procedure prescribed by LAW .","Under LAW , detainees are required to be provided with everyday conditions that meet sanitary and hygiene standards . The cell area for CARDINAL person may not be CARDINAL sq . m. Detainees are to be supplied with meals , an individual sleeping place , bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the government . In case of need , they are to be supplied with clothes and footwear of a standard quality .","Under section CARDINAL ) , permission for relatives or other persons to visit a detainee ( in principle , once a month for TIME ) can be given by the administrative authorities of the place of detention , but only with the written approval of an investigator , an investigative authority or a court dealing with the case . Under subsection ( CARDINAL ) , detainees have the right to be visited by defence counsel , whom they may see alone with no restrictions on the number of visits or their length , from the moment the lawyer in question is authorised to act on their behalf , such authorisation being confirmed in writing by the person or body dealing with the case .","Under section CARDINAL(CARDINAL ) , detainees may exchange letters with their relatives and other persons and companies , establishments and organisations with the written permission of an authority dealing with the case . Once a sentence starts to run , correspondence is no longer subject to any limitation .","According to LAW features of the regime in penal institutions ) of the Code , the principal characteristics of the regime in penal institutions are : the compulsory isolation and permanent supervision of sentenced persons , so as to exclude any possibility of crimes or other acts against public order being committed by them ; strict and continuous observance of obligations by these persons ; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person .","Sentenced persons must wear a uniform . They must be searched ; body searches must be conducted by persons of the same sex as the person searched . Correspondence is subject to censorship , and parcels and packages are subject to opening and checking . A strict internal routine and strict rules must be established in correctional labour establishments .","Sentenced persons are prohibited from keeping money and valuables , or other specified objects , in correctional labour establishments . Any money and valuables found are to be confiscated and , as a rule , transferred to the ORG in accordance with a reasoned decision of the governor of the establishment , sanctioned by a prosecutor .","A list of objects which sentenced persons are allowed to possess , giving the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in correctional labour establishments , must be established by the internal regulations of such establishments .","Under the provisions of the Code , sentenced persons are allowed to buy food and toiletries ( to be paid for by written order ) , to have visits , to receive parcels , packages , postal packages and money by remittance , to correspond and to send money to relatives by remittance .","Article CARDINAL \u00a7 CARDINAL ( Purchase of food and toiletries by sentenced persons ) provides that sentenced persons are allowed to buy food and toiletries , to be paid for by written order from the money received by remittance .","Article CARDINAL provides , inter alia , that a lawyer may be given permission to see his client on presentation of his licence and identity card . Visits are not limited as to their number and length and , at the lawyer \u2019s request , may be carried out without a prison warder being present .","Under LAW ( Receipt of parcels and small packets by persons sentenced to imprisonment ) sentenced persons held in correctional labour GPE ( \u0432\u0438\u043f\u0440\u0430\u0432\u043do-\u0442p\u0443\u0434\u043e\u0432\u0430 \u043a\u043e\u043b\u043e\u043d\u0456\u044f ) are allowed to receive , per year : CARDINAL parcels in GPE subject to the general regime ( \u043a\u043e\u043b\u043e\u043d\u0456\u044f \u0437\u0430\u0433\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u0440\u0435\u0436\u0438\u043c\u0443 ) , CARDINAL parcels in GPE subject to the restricted regime ( \u043a\u043e\u043b\u043e\u043d\u0456\u044f \u043f\u043e\u0441\u0438\u043b\u0435\u043d\u043e\u0433\u043e \u0440\u0435\u0436\u0438\u043c\u0443 ) and CARDINAL parcels in GPE subject to the strict special regime ( \u043a\u043e\u043b\u043e\u043d\u0456\u044f \u0441\u0443\u0432\u043e\u0440\u043e\u0433\u043e \u0440\u0435\u0436\u0438\u043c\u0443 ) . Sentenced persons held in educational labour GPE ( \u043a\u043e\u043b\u043e\u043d\u0456\u044f \u0432\u0438\u0445\u043e\u0432\u043d\u043e-\u0442\u0440\u0443\u0434\u043e\u0432\u0430 ) are allowed to receive per year : CARDINAL parcels in GPE subject to the general regime and CARDINAL parcels in GPE subject to the restricted regime .","Convicted offenders serving their sentence in a prison are not allowed to receive parcels .","Irrespective of the type of regime under which they are held , sentenced persons are allowed to receive not CARDINAL small packets per year , and to buy reading matter through the sales distribution network without any restrictions .","The quantity of parcels and small packets of all types is not restricted for sentenced persons held in correctional labour colony camps ( \u0432\u0438\u043f\u0440\u0430\u0432\u043do-\u0442p\u0443\u0434\u043e\u0432\u0430 \u043a\u043e\u043b\u043e\u043d\u0456\u044f-\u043f\u043e\u0441\u0435\u043b\u0435\u043d\u043d\u044f ) .","A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets , as well as the procedure for their receipt and delivery to the sentenced persons , is to be established in the internal regulations of correctional labour establishments .","Under LAW ( Receipt and sending of money by sentenced persons by remittance ) sentenced persons are allowed to receive unlimited amounts of money by remittance , as well as to send money to their relatives and , if this is permitted by the authorities of the correctional labour establishments , to other persons . The money received by remittance is transferred to the personal account of the sentenced person .","Article CARDINAL \u00a7 CARDINAL ( Correspondence of persons sentenced to imprisonment ) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows : CARDINAL letter per DATE for those held under the general regime and CARDINAL letter DATE for those held under the strengthened regime .","According to section CARDINAL ) of ORG , the public prosecutor shall deal with petitions and complaints concerning breaches of the rights of citizens and legal entities , except complaints that are within the jurisdiction of the courts . Subsection ( CARDINAL ) provides that an appeal lies from the prosecutor \u2019s decision to the supervising prosecutor and , in certain cases , to the court . Subsection ( CARDINAL ) provides that the decision of ORG is final .","ORG . NORP Under section CARDINAL the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force . If there are any grounds for reopening the proceedings , the prosecutor may challenge the court judgment or any other decision .","NORP Under section CARDINAL(CARDINAL ) the matters subject to the public prosecutor \u2019s supervision are : adherence to the legal rules on pre - trial detention and correctional labour or other establishments for the execution of sentences or coercive measures ordered by a court ; adherence to the procedures and conditions for holding or punishing persons in such establishments ; the rights of such persons ; the manner in which the relevant authorities carry out their duties under the criminal law ; and legislation on the enforcement of sentences . The public prosecutor may at any time visit places of pre - trial detention , establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform , in order to conduct interviews or consult documents on the basis of which persons have been detained , arrested or sentenced or subjected to compulsory measures ; he may also examine the legality of orders , resolutions and decrees issued by the administrative authorities of such establishments , terminate the implementation of such acts , appeal against them or cancel them where they do not comply with the law , and request officials to give explanations concerning breaches which have occurred .","In its resolution , the ORG deplored the executions which , reportedly , had been carried out recently in GPE , GPE and GPE . In particular , it condemned GPE for apparently violating its commitment to introduce a moratorium on executions of the death penalty upon its accession to ORG . It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment , warning it that further violation of its commitments , especially the carrying out of executions , would have consequences under Order no . CARDINAL ( DATE ) .","The ORG confirmed in this resolution that it had received official information that , in DATE , CARDINAL executions had been carried out in GPE , and regretted that the NORP authorities had failed to inform it of the number of executions carried out in DATE . The ORG was particularly shocked to learn that executions in GPE had been shrouded in secrecy , with apparently not even the families of the prisoners having been informed , and that the executed prisoners had reportedly been buried in unmarked graves . It condemned GPE for having violated its commitment to put into place a moratorium on executions , deplored the executions that had taken place , and demanded that GPE immediately honour its commitments and halt any executions still pending .","In these texts , the ORG noted that GPE had clearly failed to honour its commitments ( CARDINAL persons had been executed DATE and DATE , according to official sources ) . At the same time , it noted that since DATE a de facto moratorium on executions had been in effect in GPE . The ORG insisted that the moratorium be reconfirmed de jure and that the PERSON Rada ratify LAW No . CARDINAL to the Convention . It stressed the importance of the de facto moratorium on executions and firmly declared that , if any further executions took place , the credentials of the NORP parliamentary delegation would be annulled at the following part - session of the ORG , in accordance with Rule CARDINAL of its Rules of Procedure .","Delegates of the ORG visited places of detention in GPE in DATE , DATE and DATE . Reports on each of the visits were published on DATE , together with the responses of the NORP government .","The visit of the delegation , which took place from DATE , was the ORG \u2019s first periodic visit to GPE . In the course of the visit the delegation inspected , inter alia , ORG ( GPE \u2013 \u201c investigation isolation establishment \u201d ) no . CARDINAL\/CARDINAL in ORG . On the ground floor of building no . CARDINAL were housed at the time of the visit CARDINAL prisoners who had been sentenced to death , although as was recorded in a footnote to the report , the delegation had received assurances that since DATE a de facto moratorium on executions had been observed .","In its report ( \u00a7 CARDINAL ) , the ORG expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them . It was noted that prisoners sentenced to death were usually accommodated CARDINAL to a cell , the cell measuring CARDINAL to QUANTITY m. The cells had no access to natural light , the windows being obscured by metal plates . The artificial lighting , which was permanently on , was not always sufficiently strong with the result that some cells were dim . To ventilate the cells , prisoners could pull a cord that opened a flap . Despite this , the cells were very damp and quite cold ( \u00a7 CARDINAL ) .","The equipment in the cells was described in the report as being rudimentary , consisting of a metal bed and\/or sleeping platform ( fitted with a thin mattress , sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold ) , a shelf and CARDINAL narrow stools . Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell , but the delegation had been told that the radio only functioned sporadically ( ibid . ) .","All the cells had non - partitioned toilets which faced the living area ; as a result , a prisoner using the toilet had to do so in full view of his cellmate . As regards toiletries , prisoners sentenced to death were in a situation as difficult as that of many of the other inmates ; items such as soap and toothpaste were scarce ( ibid . ) .","It was further recorded that prisoners sentenced to death had no form of activity outside their cells , not even an hour of outdoor exercise . At best they could leave their cells once DATE to use the shower in the cell - block , and for TIME once a month if they were authorised to receive family visits . In - cell activities consisted of reading and listening to the radio when it worked . Apart from the monthly visits which some inmates received , human contact was limited essentially to the occasional visit by an NORP priest or a member of the health - care staff , who spoke to the prisoners through a grille in the cell door ( \u00a7 CARDINAL ) .","The ORG summarised its findings as follows ( \u00a7 CARDINAL ) :","\u201c In short , prisoners sentenced to death were locked up for TIME a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting , with virtually no activities to occupy their time and very little opportunity for human contact . Most of them had been kept in such deleterious conditions for considerable periods of time ( ranging from DATE to over DATE ) . Such a situation may be fully consistent with the legal provisions in force in GPE concerning the treatment of prisoners sentenced to death . However , this does not alter the fact that , in the ORG \u2019s opinion , it amounts to inhuman and degrading treatment . \u201d","It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation ( the progress of their cases , follow - up to applications for cases to be reviewed , examination of their complaints , etc . ) ( \u00a7 CARDINAL ) .","NORP In its response to the DATE report , the NORP government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the ORG . In particular , LAW had been introduced to guarantee to prisoners sentenced to death the right to be visited once DATE by relatives , to be visited by a lawyer to get legal assistance , to be visited by a priest and to receive and send correspondence without limitation . It was further noted","( i ) that prisoners sentenced to death would have DATE walks in the open air and that for this purpose QUANTITY of pre - trial prisons had been rebuilt or re - equipped ;","( ii ) that , in order to improve the natural lighting and air of all cells , the blinds and metal plates over cell windows had been removed ; and","( iii ) that , for the purposes of informing inmates sentenced to death of their rights and legal status , extracts from the Temporary Provisions had been posted on the walls of each cell .","A ORG delegation visited GPE from DATE , on which occasion it again inspected GPE no . CARDINAL\/CARDINAL in GPE where , at that time , CARDINAL prisoners who had been sentenced to death were being detained . The report noted that certain changes had occurred since the previous visit . In particular , the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air , although it was observed that there was insufficient space for real physical exercise ( \u00a7 \u00a7 DATE ) . The report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond ( \u00a7 CARDINAL ) . However , the ORG noted certain unacceptable conditions of detention , including the fact that prisoners continued to spend CARDINAL out of TIME a day in their cells and that opportunities for human contact remained very limited ( \u00a7 DATE ) .","A third visit to GPE took place from DATE , in the course of which the delegation inspected , inter alia , ORG ( GPE ) no . CARDINAL in PERSON . The ORG welcomed the decision of the NORP authorities to abolish the death penalty and noted that most of the CARDINAL prisoners subject to the death sentence had had their sentences commuted to life imprisonment .","NORP Despite these welcome developments , the ORG declared that the treatment of this category of prisoner was a major source of concern ( \u00a7 CARDINAL ) . It was noted that , further to a provisional instruction issued in DATE and pending the establishment of CARDINAL high - security units specifically intended for life prisoners , such prisoners were subjected to a strict confinement regime ( \u00a7 DATE ) . While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited , there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation ( \u00a7 CARDINAL ) . Moreover , life prisoners were confined in their cells for CARDINAL and a half hours a day with no form of organised activities and , by way of activities outside their cells , were entitled to TIME of outdoor exercise , which took place in unacceptable conditions . There was virtually no human contact : since the entry into force of the DATE instruction , visits from relatives had been forbidden and prisoners were only allowed to send CARDINAL letter DATE , although there were no restrictions on receiving letters ( \u00a7 CARDINAL ) .","In their response to the report , the NORP government noted further legal amendments which ensured that life prisoners had TIME of exercise per day and CARDINAL family visits of TIME . Further , to ensure adequate access to light , the metal blinds had been removed from the windows of all cells ."],"violated_articles":["3","8","9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59587","languageisocode":"ENG","respondent":"FIN","branch":"GRANDCHAMBER","date":2001,"docname":"CASE OF K. AND T. v. FINLAND","importance":1,"conclusion":"Violation of Art. 8 with regard to emergency care order concerning J.;No violation of Art. 8 with regard to emergency care order concerning M.;No violation of Art. 8 with regard to normal care orders;Violation of Art. 8 with regard to failure to take steps to reunite family;No violation of Art. 8 with regard to access restrictions;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Gaukur J\u00f6rundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["At the beginning of the events relevant to the application , PERSON had a daughter , PERSON , and a son , PERSON , born in DATE and DATE respectively . PERSON \u2019s father is X and PERSON \u2019s father is PERSON From DATE to May CARDINAL PERSON was voluntarily hospitalised for DATE , having been diagnosed as suffering from schizophrenia . From DATE and from DATE , she was again hospitalised for periods of DATE on account of this illness . In DATE she was hospitalised for DATE , diagnosed as suffering from an atypical and undefinable psychosis . It appears that social welfare and health authorities have been in contact with the family since DATE .","The applicants initially cohabited from DATE . In DATE both PERSON and PERSON were living with them . From DATE PERSON and X were involved in a custody and access dispute concerning P. In DATE a residence order was made transferring custody of P. to X.","PERSON was again hospitalised from DATE to CARDINAL DATE , from CARDINAL May to DATE , and from DATE , on account of psychoses . She was in compulsory care DATE and DATE . According to a medical report dated CARDINAL DATE , PERSON was paranoid and psychotic .","On DATE , according to the social welfare authorities\u2019 records , a discussion took place between a social worker and PERSON \u2019s mother . PERSON \u2019s mother said that her daughter \u2019s health condition was really bad and that PERSON had destroyed a childhood picture of hers , a wedding photo of the mother , broken a glass and \u201c pierced the eyes \u201d of all appearing in the photos . PERSON \u2019s mother had said that she was tired of the situation , as she did not get any support from the mental health authorities . She added that she was worried and afraid that \u201c again something must happen before PERSON is admitted to care \u201d .","On DATE PERSON was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care , having initially been diagnosed as suffering from psychosis . The conditions for compulsory care were not considered to be met but she remained in voluntary care until DATE .","Allegedly , X did not allow PERSON , P. and PERSON to meet . On DATE , when PERSON was again pregnant , her access to PERSON was further limited by an order of ORG of NORP Basing itself on a doctor \u2019s opinion , the court held that the child \u2019s mental development would be endangered if the meetings between PERSON and PERSON continued without supervision as had been ordered in DATE .","According to the records of the social welfare authorities , PERSON showed signs of behavioural problems . On DATE a psychologist reported how PERSON had played with CARDINAL dolls saying \u2013 in very vulgar terms \u2013 that they were performing sexual acts . On DATE PERSON was said to have broken a mirror in the presence of PERSON who had kept repeating : \u201c mummy broke the mirror ... \u201d","Notes of the social authorities of CARDINAL and DATE among others state that games which PERSON played and pictures he drew were of a destructive nature . According to the notes taken on DATE , he had lately , while the children were singing together at the DATE - care nursery , shown immense hatred , threatening \u201c to kill everybody \u201d . The occasions when PERSON fetched him were described as \u201c unpleasant scenes \u201d , PERSON shouting and hitting his mother who did not react . It was noted , however , that he no longer played doll games with sexual connotations .","According to the records of the social welfare authorities , a discussion between PERSON , her mother , ORG and a number of social and mental - health care officials took place on DATE , during which it was mentioned that the authorities might have to intervene in LOC \u2019s upbringing , from the child - protection point of view , in a more drastic way than had been the case so far . It appeared that in connection with PERSON \u2019s recent hospitalisation T. had \u201c forcibly \u201d taken her from a restaurant , which had made PERSON furious , with the consequence that she had thrown things around ; for example , the microwave oven had ended up on the floor . T. had said that PERSON was unable to control herself .","On DATE the child welfare support group , consisting of various social and health authorities , agreed that the aim should be to place M. in a children \u2019s home for DATE as an assistance measure of open care under section CARDINAL of the DATE LAW ( lastensuojelulaki , barnskyddslag DATE \u201c the DATE LAW ) , during which period psychological examinations of the child would be carried out .","On CARDINAL DATE a social welfare official decided on behalf of ORG ( perusturvalautakunta , grundtrygghetsn\u00e4mnden ) of PERSON to place LOC in a children \u2019s home for a period of DATE . This was to be regarded as a short - term support measure pursuant to the DATE Act . The applicants had been consulted , together with ORG mother and sister , on DATE , in order to find an open - care measure which would be practicable . According to the records of that meeting , no such practical measure had been proposed by any of the participants . The applicants had then been heard again on DATE and had not objected to the placing of PERSON in a children \u2019s home .","In an opinion of CARDINAL DATE , requested by ORG , doctors GPE and GPE considered that PERSON was not at that time able to care for PERSON , but that her mental state would not necessarily permanently prevent her from caring for him . Doctors GPE and GPE worked at the hospital of H. , where PERSON had been cared for since DATE during the periods indicated above .","On DATE it was reported by the social welfare authorities that , when PERSON and PERSON had come to the children \u2019s home where PERSON was staying , the boy had undergone a total change in his behaviour , characterised by anger , hatred , swearing , etc . T. had said that he was really tired of the situation and that in his view PERSON was in need of hospitalisation . When a visit to the health centre had been suggested to her , she had become very angry .","According to a statement of DATE by the children \u2019s home , PERSON and PERSON had come to the home on DATE . While T. had been playing with PERSON , other children had come to tell the staff that PERSON had asked a DATE girl what her name was . As the girl did not reply , PERSON had raised her voice and shaken the girl , not letting her go until an older girl had given the child \u2019s name . The other children had been frightened by PERSON \u2019s behaviour .","On DATE the social welfare official who had decided on DATE to place ORG in a children \u2019s home informed ORG and the local hospital of S. in writing that she was very worried about the health of PERSON and the baby she was carrying . She requested the hospitals to contact her as soon as PERSON arrived at the hospital and , more particularly , at the time of the baby \u2019s delivery . She also expressed the wish that health - care professionals should pay special attention to the relationship between the mother and the new - born baby from the very beginning .","On DATE PERSON was taken to a district hospital , where she gave birth to PERSON on DATE . According to the hospital records , the mother stayed calm during the delivery . After the delivery a written decision concerning an emergency care order was served on the hospital . The child was taken to the children \u2019s ward . The mother \u2019s behaviour in the ward was later found to be somewhat restless but not completely disorderly . The hospital records indicate that she understood the situation and wanted to leave hospital DATE . Medication to prevent the secretion of milk was prescribed . It seems that PERSON left the hospital on DATE , that is , the following morning , without any post - natal examination . She went to her mother \u2019s home , where she started pushing an empty pram around the place .","J. was immediately placed in emergency care , pursuant to section CARDINAL of LAW . After the birth of their child , PERSON and T. were informed of this decision by CARDINAL social workers at the hospital of H. The Social Director , who had made the decision on behalf of ORG , noted that PERSON \u2019s mental state had been unstable during the last stages of her pregnancy . He considered that the baby \u2019s health would be endangered since PERSON had found out about the plans to place the baby in public care . Lastly , he considered that the baby \u2019s father , PERSON , could not guarantee its development and safety . In addition the ORG referred to the family \u2019s long - standing difficulties , namely , PERSON \u2019s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children , ORG \u2019s inability to care for both PERSON and PERSON , PERSON \u2019s reluctance to accept guidance , the impossibility of putting the whole responsibility for ORG development on ORG , and the impossibility of providing open - care support measures to the necessary extent . The applicants were not heard prior to the decision . On DATE the applicants were notified in writing of the decision to take the new - born baby into public care . The notification was also faxed to PERSON","On DATE the ORG also placed PERSON in emergency care , citing principally the same reasons as in his decision of DATE concerning J.","The applicants did not appeal against the emergency care orders .","On DATE ORG took note of the emergency care orders and prohibited all unsupervised access between PERSON on the one hand , and PERSON on the other . The number of supervised visits , however , was not restricted . ORG decided to continue preparations for taking PERSON and J. into care .","A meeting was held by social workers at the family centre on DATE , before the arrival of the baby from the hospital and in the absence of the applicants . It is mentioned in the report that there was a plan to prohibit the mother \u2019s visits for DATE on the ground that her reactions could not be predicted as she had , for example , broken things at home . After this initial period she would be allowed to visit the baby without restriction , but accompanied by her personal nurse . However , this plan was not implemented . The following entry appears in the register for DATE : \u201c The mother may come with her personal nurse if she wants . Other visitors not allowed for the time being . \u201d","PERSON was asked to come with T. to the social welfare office on DATE at TIME in order to be informed of the decision of DATE by the Social Director concerning PERSON On DATE PERSON and PERSON \u2019s biological father ) were notified in writing of the decision of DATE . The notification was also faxed to PERSON","On DATE PERSON was hospitalised voluntarily at the hospital of H. on account of psychosis , having obtained a referral from a doctor at a health care centre . She was treated there until DATE .","On DATE J. was placed in the family centre . T. visited her DATE .","At DATE T. left the applicants\u2019 home , having been told by the social welfare officials that he had to break off his relationship with PERSON \u201c if he wanted to keep \u201d J. The applicants nevertheless continued their relationship .","On DATE ORG gave its decisions taking PERSON into \u201c normal \u201d public care , giving reasons similar to those mentioned in the emergency care orders ( see paragraph CARDINAL above ) , and prolonged the access restriction until DATE . PERSON was allowed to see the children only in the company of her personal nurse . ORG essentially considered that PERSON \u2019s state of health remained unstable ; that she was subject to aggressive and uncontrolled emotional moods ; and that public care proceedings were a severe mental ordeal for a patient . As regards PERSON , the ORG therefore believed that her personal security could be jeopardised if access were to take place without supervision . As regards PERSON , the ORG feared that PERSON \u2019s visits to the children \u2019s home \u201c could no longer be supervised by its staff , which would not be in his interest \u201d . Before the decisions of DATE the applicants had been heard and had expressed their objection to the care decisions envisaged .","On DATE PERSON visited both her children , accompanied by her personal nurse . The register indicates that it was \u201c a difficult situation \u201d .","On DATE T. moved to the family unit of the family centre with J.","On DATE PERSON was again hospitalised in voluntary care at the open ward of the hospital of H. , suffering from psychosis . She left hospital DATE , however . On DATE she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care . On DATE she was committed to compulsory psychiatric care . According to the file , her relatives had earlier been worried about her and had contacted the hospital in order to get her into hospital care . They reported that PERSON had disappeared from her home , where she had behaved in an unsettled and aggressive manner . Her hospitalisation lasted until DATE , that is , DATE .","During the period DATE and DATE CARDINAL PERSON visited her children at their respective children \u2019s homes . During the visits she was accompanied by her personal nurse from the hospital , who was in contact with the social welfare authorities and arranged the visits having regard to PERSON \u2019s state of mental health . According to the centre \u2019s register , she visited J. twice during this period .","According to a statement made by a social worker on DATE , ORG had taken good care of CARDINAL , first at the hospital until DATE and later on at the family centre . It was agreed that J. would stay at the family centre and that T. would visit her every other day . J. would visit her father for the first time from CARDINAL to CARDINAL DATE , during which time T. would organise her christening . The intention was that the baby could move in with her father later on .","After T. \u2019s paternity had been established on DATE , T. and PERSON were granted joint custody of ORG .","T. \u2019s travel expenses to the centre were paid for by the social welfare authorities . From the centre \u2019s records it can be deduced that T. succeeded in creating a relationship with the baby and learned to take good care of her . The home leaves were spent with T. first at his mother \u2019s house and later in his new home .","On DATE ORG referred both public care orders to ORG ( l\u00e4\u00e4ninoikeus , l\u00e4nsr\u00e4tten ) for confirmation , as the applicants had opposed them . In support of its referrals , the ORG submitted a statement by a social welfare official dated DATE , according to which ORG would not be able to care both for PERSON and the new - born J. alone , since PERSON was living in the same home and had been psychotic for DATE . T. had been in contact with J. at the children \u2019s home CARDINAL times a week . While staying in a flat attached to a municipal children \u2019s home , he had cared for J. for DATE and had subsequently cared for DATE in his new home . ORG had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by ORG .","On DATE ORG confirmed the care order concerning J. , considering that PERSON had been mentally ill ; that the applicants had had conflicts \u201c as a result of which ORG had moved away from their home at DATE \u201d ; that because of PERSON \u2019s illness and the family \u2019s other problems the applicants had been unable to provide J. with adequate care ; that the care support provided to the family had not sufficiently improved the family \u2019s situation and that the measures could not be expected to satisfy ORG care needs . No hearing was held .","On DATE ORG confirmed the care order concerning PERSON , repeating the reasons put forward in its decision of CARDINAL DATE concerning J. No hearing was held .","In an appeal to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltningsdomstolen ) against the confirmation of the public care order concerning PERSON , the applicants were represented by LAW ( yleinen oikeusavustaja , allm\u00e4nna r\u00e4ttsbitr\u00e4det ) of S. ORG dismissed the appeal on DATE .","On DATE ORG extended the time allowed for an appeal by PERSON against the confirmation of the care order made in respect of J.","On DATE PERSON appealed against the care order in respect of J. as confirmed by ORG on DATE . On DATE ORG granted PERSON cost - free proceedings as from DATE , appointed PERSON as her representative and upheld ORG decision of DATE .","By a decision of CARDINAL DATE ORG placed J. in a foster home in PERSON , a town QUANTITY away from the applicants\u2019 home . PERSON joined her on DATE . The foster parents had no children of their own . Social welfare officials told the applicants and the foster parents that ORG and PERSON \u2019s placement would last \u201c for DATE \u201d . The applicants had proposed that the children \u2019s public care be implemented in the homes of relatives .","In the meantime , on DATE , J. was christened in the presence of PERSON , GPE","A consultation was held at the children \u2019s home , on DATE , in the presence of T. According to the records , PERSON \u2019s mental health was very unstable and her psychiatric treatment was expected to have to be continued for DATE . T. , however , had expressed his hopes that PERSON and he could , together , take care of J. in the future . It was agreed that PERSON would stay at the children \u2019s home and would visit ORG every week from DATE until DATE , beginning on DATE . T. would visit J. on other days , according to an arrangement to be agreed with the children \u2019s home .","On DATE ORG prolonged the access restriction until DATE .","The following notes of a social welfare official appear among those in the case records of ORG :","\u201c DATE :","\u2026","NORP ... In addition , the importance of future access between J. and T. has now been questioned , since J. \u2019s placement in [ public foster care ] is under preparation . It will be difficult for T. to give up J. ... \u201d","\u201c DATE :","K. ... states that she is considering moving [ back with T. ] when she is discharged from the hospital on DATE . ... [ Her ] wish is for PERSON and J. to be placed in the same [ foster ] family . ... \u201d","\u201c DATE :","... T. agrees to J. \u2019s placement in a [ foster ] family . ... \u201d","\u201c DATE :","... T. is slightly opposed to J. \u2019s placement in a [ foster ] family . ... It is again explained [ to him ] why J. can not live with him as long as [ the applicants ] continue their relationship . ... \u201d","\u201c DATE :","... The essential issue from ORG point of view is [ the applicants\u2019 ] relationship ; if [ it ] continues , J. can not stay with T. ... The alternatives are : J. comes back home to ORG or is placed in [ foster care ] . ... [ He ] can provide the basic care and upbringing alone provided he receives some support . ... \u201d","\u201c DATE :","... Access between M. and PERSON has been successful now that ORG has been attending [ the visits ] . ... \u201d","\u201c DATE :","... The father has been responsible for the care of the institutionalised child . He has been active and acted on his own initiative . He has fed , clothed and bathed the child . He has also taken care of the child \u2019s outings and of rocking the baby to sleep . The father has treated the child naturally and with consideration ; he has talked a lot to the child and showed her tender emotions . He has enjoyed his time with the child on the child \u2019s terms . The father has treated the child patiently and with warmth , taking into consideration the needs of the child .","The mother has visited the child CARDINAL times and stayed only for a moment each time .","... J. has had the advantage of regular interrelation with CARDINAL person who takes care of her , namely her father . A safe relationship with the father has given the child a feeling of basic security , which acts as a basis for positive development of her emotional life . J. has the necessary resources to grow up and develop into a healthy and well - balanced child . In the circumstances , the foundation for the family placement is good . \u201d","On DATE PERSON was discharged from the hospital of H.","On DATE ORG drew up a plan concerning the implementation of the public care . The ORG alternative plan was allegedly ignored . For instance , the children could not meet their maternal grandmother at her home .","After the adoption of the care plan on DATE , the applicants requested a relaxation of the access restriction . For example , T. had been permitted to see PERSON only once a month .","On DATE the applicants requested , inter alia , that ORG should draw up a public care plan aiming at the reunification of the family .","On DATE the social welfare authorities organised a meeting in order to revise the care plan of DATE . The applicants and their representative did not attend the meeting .","On DATE the ORG restricted both ORG access to the children to CARDINAL DATE visit at the foster home , to take place under supervision and TIME . The Social Director considered that the grounds for public care still existed . In his view , although the applicants were dissatisfied with the visits set out in the care plan , affording the children an unlimited right to see their parents would create an obstacle to their successful placement . The applicants appealed .","On DATE ORG held an oral hearing concerning the access restriction imposed on DATE . It took evidence from CARDINAL psychiatrists , who had interviewed PERSON of them , Dr PERSON , did not know PERSON personally but commented on a diagnosis concerning her mental state by indicating that PERSON had a tendency to react in a psychotic manner to conflict situations . PERSON stated that PERSON \u2019s state of health did not prevent her from caring for her children . Consequently , if her illness had been the reason for the access restriction , that reason no longer existed .","In a written expert opinion , requested by ORG and submitted to ORG , PERSON , a child psychiatrist , expressed the opinion that the children should be permanently cared for by the foster parents and that the applicants\u2019 visits should , for the time being , be discontinued so as to protect the children and the foster parents . According to the applicants , PERSON had not met them or the children , nor had he consulted the other psychiatrists before making his proposal .","On DATE ORG upheld the access restriction issued on DATE . It noted that neither of the witnesses who had been heard orally had been willing to state any opinion as regards the children \u2019s development . It reasoned , inter alia , as follows :","\u201c ... [ By allowing ] access to take place once DATE and [ by allowing contact through correspondence ] it will be ensured that the children will retain knowledge about their biological parents . If the grounds for public care later cease to exist , a reunification of the family will thus be possible . ... \u201d","ORG dismissed the applicants\u2019 request for exemption from costs , since the relevant legislation did not cover disputes concerning access restrictions . At the court \u2019s hearing , the applicants were nevertheless assisted by PERSON .","On DATE the applicants requested that ORG discontinue the public care of PERSON and J.","On DATE the ORG allegedly told the applicants that any further children born to them would also be placed in public care . According to the Government , the Social Director only told them , when expressly asked , that it was possible that any further children born would be taken into public care .","In an opinion of CARDINAL DATE submitted at ORG request , PERSON , a psychiatrist , commented on the possibility of revoking the public care orders . She concluded that PERSON \u2019s mental state would not prevent her from having custody of the children . According to PERSON , PERSON \u2019s efforts to have public care discontinued and access restrictions relaxed showed that she possessed psychological resources . She noted , inter alia , that T. was PERSON \u2019s closest support in the care and upbringing of the children . In addition , ORG mother , at the time her guardian ad litem , was ready to help in caring for them . PERSON , however , added that she could not , as a psychiatrist for adults , take any stand as regards the interests of the children . PERSON opinion was also based on a report submitted by PERSON . , a psychologist , who had come to the same conclusion as regards PERSON \u2019s ability to have custody of her children .","The Public Legal Adviser advised against requesting revocation of the care orders .","K. was hospitalised from DATE and from CARDINAL DATE , apparently on account of psychosis .","On DATE ORG rejected the ORG request of CARDINAL DATE that the care order be revoked , stating as follows :","\u201c At the moment the health of the children \u2019s mother , PERSON , is better and the family situation has changed in other respects in comparison with the situation in DATE when the decisions to take the children into care were made .","...","According to PERSON , a psychiatrist , PERSON still has \u2018 a lot of GPE in her emotional life as well as fragility , brought about by DATE experiences and the diagnosis of mental illness for which she needs DATE and will need for a long time to come DATE therapeutic support and treatment . A regular medication is also needed in order to guarantee her continued well - being and to make it possible for her to manage in open care and to have custody of her children . PERSON , however , did not give her more precise opinion as to PERSON \u2019s ability to take care of and bring up her children even though PERSON was explicitly asked to give such an opinion .","ORG can have custody of her children . She can not , however , be responsible for the needs and education of the children \u2013 not even with the support of ORG and the open - care support measures . Their ability to act as educators taking care of the children \u2019s needs is inadequate .","According to the statement given by the children \u2019s clinic of the municipality of ORG , the ability of PERSON and T. to understand the needs of the children and to respond to them is very limited . Even though ORG is capable of interaction with the children , he finds it difficult to respond to the children \u2019s emotional needs . PERSON is also incapable of creating an emotional relationship with the children . At an earlier stage , PERSON , a psychologist at the local health care centre , reached the same conclusion in her statement given during the custody proceedings concerning PERSON \u2019s oldest child . In his expert statement PERSON , a child and youth psychiatrist , reached a similar conclusion . Already in DATE PERSON realised that PERSON \u2019s problem was related to the fading of the boundaries between her and her children . She stated that PERSON amalgamated herself and her children into a single entity without being able to see the unique and individual nature of the children . According to GPE , PERSON was also unable to take into account the children \u2019s needs in relation to their age . Dr PERSON finds that the children do not seem to be objects independent of PERSON but that she sees them as \u2018 self - objects\u2019 . She finds it difficult to realise that children are individual human beings in need of love and care . Instead , she sees them as if they were meant for her own personal use . \u201d","DATE . The applicants appealed on CARDINAL DATE , requesting that they be granted exemption from costs and afforded free legal representation . They also requested an oral hearing .","On DATE a further child , NORP , was born to the applicants . Having given birth , PERSON left the hospital for a while on TIME with the new - born baby wrapped in a blanket , walking barefoot in the cold weather until the hospital staff realised what had happened and intervened .","On DATE PERSON was committed to compulsory psychiatric care and treated at the hospital of H. until CARDINAL DATE , while NORP was being cared for by T. According to a psychiatrist \u2019s observation of DATE , PERSON \u201c must have been suffering from paranoid schizophrenia for some time \u201d .","On DATE ORG granted the applicants exemption from costs and appointed PERSON as their ORG representative in the case concerning their appeal against ORG decision of DATE . It decided not to hold a hearing in respect of the ORG request for a revocation of the care orders and provided the parties with an opportunity to supplement their written observations .","On DATE ORG rejected the ORG appeals of DATE without holding an oral hearing . The court noted , inter alia , that according to the medical certificates , PERSON \u2019s state of health had improved but her emotional life was still unstable . She therefore continued to be in need of psychotherapy and medication . In addition , a further child had been born to the applicants and PERSON had again been treated at the hospital of NORP These CARDINAL factors had caused an additional strain militating against a revocation of the care orders .","On DATE social welfare officials revised the public care plan , proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K. , where the foster parents were living . The applicants objected to this proposal , considering that it would have entailed a further restriction of their access to the children . Instead , they requested CARDINAL meetings DATE , CARDINAL of which was to be at their place of residence . On DATE they asked for a separate written decision concerning their access request , so that they could appeal against it .","In a letter of CARDINAL DATE the ORG informed the applicants that there were no longer any grounds for the access restriction . Meetings between the applicants and the children were nevertheless only authorised for TIME once a month on LOC chosen by ORG . They were also informed that the meetings would be supervised .","In his decision of CARDINAL DATE the ORG confirmed that there were no longer any grounds for the access restriction . On DATE and CARDINAL DATE ORG confirmed the decision of CARDINAL DATE . The applicants appealed .","DATE . As regards the applicants\u2019 appeal against ORG decisions of DATE and CARDINAL DATE , ORG considered , on DATE , that the revised care plan drawn up on DATE had already entailed an access restriction which had later been renewed by further decisions , without the applicants having been properly heard , in respect of their access request . The matter was referred back to ORG for further consideration .","In the light of ORG decision the Acting Social Director , on DATE , formally restricted the ORG access to the children to CARDINAL meeting a DATE up to CARDINAL DATE . The meetings were to take place in the foster home . In addition , the foster parents were to visit the applicants with the children DATE . The Director considered , inter alia , that it was important that the children settle themselves in the foster family environment in which they would grow up . Closer contacts with their parents would mean change and insecurity as well as the creation of a new crisis in their development . The process of settling which had started well would be jeopardised . For the children \u2019s progress it was therefore necessary that their situation remain stable and secure . The Director \u2019s decision was confirmed by ORG on DATE . The applicants appealed .","On DATE ORG rejected the ORG appeal against the access restriction confirmed on CARDINAL DATE .","On DATE social welfare officials revised the public care plan , proposing that the children meet the applicants once a month on the premises of a school at the children \u2019s place of residence . As the applicants were not present when the proposal was made , the care plan was again revised on DATE in so far as the access restriction was concerned . The applicants then proposed that the children meet them without supervision once DATE . The public care plan was , however , revised as proposed by the social welfare officials .","On DATE the ORG restricted both ORG access to the children , until DATE , to CARDINAL DATE visit on the premises of a school at the children \u2019s place of residence , where access was to take place under supervision for TIME . CARDINAL of the foster parents was also ordered to be present at the time of the access . The Social Director \u2019s decision was confirmed by ORG on DATE . The ORG appealed against the decision to ORG , requesting an oral hearing . The court obtained a statement from a child psychiatrist , PERSON , who was also recommended by the ORG representative to ORG . PERSON statement included the following observations :","\u201c The right of access of PERSON and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and their health . This requires an examination of the quality , permanence and durability of their human relationships , because psychological growth and development take place in interaction with human relationships . In my opinion , the human relationships are to be examined from the children \u2019s point of view . ...","... In conclusion , I note that before PERSON was placed in the children \u2019s home ... the mother had been in psychiatric hospital for treatment CARDINAL times , making a total of DATE . Thus , PERSON had lived with his mother for DATE , namely , DATE and DATE . The longest that they spent together was DATE and DATE . ... T. has , as \u2018 stepfather\u2019 , helped to look after PERSON for at DATE . ... the foster parents have so far looked after PERSON for DATE without interruption . ... In practice , PERSON has not had any kind of relationship with his biological father ...","In the light of the above , I note that the human relationships in PERSON \u2019s early childhood have , owing to the circumstances , been non - continuous , short - term and changing . The most stable and continuous relationships have been with his foster parents ... Therefore , these relationships are the most relevant and important ones for PERSON \u2019s psychological growth and development .","... J. was born in DATE . She was taken into public care immediately after she was born . At first , she stayed in the district hospital for a short time , and later at a reception home for small children . T. , as the biological father of PERSON , looked after her for DATE in DATE and DATE . J. was placed in the foster family ... in DATE , when she was DATE . So far , PERSON has stayed with her foster family for DATE without interruption . J. is now DATE and DATE .","In the light of the above , I note that , due to the circumstances , J. has not had any significant and important relationships other than those with her foster parents . J. \u2019s relationship with her foster parents is of primary importance for her psychological growth and development . ...","... From the children \u2019s point of view , especially , but naturally also from that of the foster parents , the foster family is a family to which the principles concerning family life enshrined in LAW on the Rights of the Child and in LAW can be applied in the same way as to biological families . This point of view is especially important when , due to the circumstances , the biological family has not lived together .","In the light of the above , I note that the arrangements for helping and supporting the foster parents of PERSON and J. are in the best interests of the children . The arrangement will , in the first place , ensure the important , continuous and safe human relationships of PERSON and J. with their foster parents ...","It is also important for PERSON and J. \u2019s psychological growth and development that , in the safe and stable conditions provided by the foster family , they are able to form and maintain a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances .","In my opinion , this can be done by complying with the decision of ORG of S. of DATE concerning the right of access . At present , an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interests of the children , because PERSON and T. are not capable of meeting the emotional needs of PERSON and J. ... Such arrangements concerning the right of access would clearly endanger the health and development of PERSON and J. In my opinion , the question of an unrestricted right of access should be evaluated when the children have attained the age of CARDINAL . \u201d","In a statement of DATE PERSON stated that in her opinion PERSON \u2019s psychiatric state did not preclude PERSON \u2019s having custody of her daughter NORP","On DATE the care plan was again revised by the social welfare authorities . The applicants had been informed of the time of the meeting concerning the revision of this care plan on home visits on DATE and DATE . Their representative had also been informed of the meeting by a letter sent on DATE . The applicants did not attend the meeting , and neither did their representative . The applicants were thus not explicitly heard in this connection but , as they had expressed their opinion on other occasions , the authorities recorded their point of view in the plan .","On DATE ORG rejected the ORG appeal against ORG decision of DATE to restrict the ORG access right ( see paragraph CARDINAL above ) . It refused the applicants\u2019 request for an oral hearing .","Although the applicants had stated only in their reply that the appeal was also made on NORP \u2019s behalf , ORG found in its decision that it was in part made in her name . The court stated that a person to whom a decision was directed , or upon whose right , duty or interest it had a direct effect , had the right of appeal . The court considered that the ORG \u2019s decision , which concerned NORP \u2019s GPE and GPE right of access , was not such a decision .","On DATE the Social Director restricted the applicants\u2019 , and consequently their youngest child NORP \u2019s , access to PERSON to CARDINAL DATE visit of TIME on the premises of a school at the children \u2019s place of residence until DATE . The applicants did not appeal .","The care plan was again revised on DATE .","According to a statement made on DATE by PERSON ( formerly PERSON ) , PERSON had not been hospitalised since DATE and her health had been stable since DATE . There had been no problems concerning the care of NORP ( who had lived with her parents all the time and had not been taken into care ) . It was recommended by PERSON that the social welfare authorities should reduce or discontinue control visits to the applicants\u2019 home in order to give PERSON the possibility of settling down to normal life without constant supervision by the authorities .","The restriction orders were extended by the Social Director on DATE , until DATE . The visits were to take place under supervision on the premises of a school at the children \u2019s place of residence . However , CARDINAL of the visits was to take place at the applicants\u2019 home in the presence of the foster parents . The Social Director considered , inter alia , that the reunification of the family was not in sight as the foster family was now the children \u2019s de facto home ; that the ORG access to the children DATE and through correspondence was enough to maintain the children \u2019s awareness of their biological parents ; and that closer contacts with the applicants would endanger the children \u2019s development , bring change and insecurity and create a new crisis in their development . The applicants appealed against this decision to ORG which , on DATE , rejected the appeal and upheld the ORG decisions . In its reasoning , the ORG quoted both ORG and PERSON","According to the reports drawn up by the supervisor who attended the meetings of the children and the applicants during the period from CARDINAL DATE to DATE , the adults got on quite well together during the meetings . J. often played games with PERSON When NORP was smaller , J. played by herself , but later it seemed that the girls , PERSON and NORP , spent more time together . On the other hand , it seemed that the first applicant made very little contact with PERSON According to the supervisor \u2019s description , especially in the earlier reports , the first applicant seemed to have concentrated on NORP","M. visited PERSON and PERSON at their home for DATE of CARDINAL to DATE without supervision .","The applicants appealed against ORG decision of DATE , concerning the right of access , to ORG ( formerly ORG ) . An oral hearing , at which PERSON was also heard , was held on DATE . In its decision of CARDINAL DATE the administrative court upheld ORG decision .","NORP The social authorities reviewed the care plan on DATE , having consulted the applicants , among others . It was decided that the children would remain in the foster home . According to the care plan , PERSON and J. are allowed to meet PERSON and T and others close to them , as from DATE until DATE , without supervision once a DATE alternately at the applicants\u2019 home and the foster GPE home . The meetings at the ORG home will take place from DATE TIME until TIME , and the meetings at the foster GPE home on DATE , from TIME until TIME The children are also allowed to meet their other relatives freely during those meetings . In addition to the above , the children will also spend a day and a night with the applicants each DATE , and DATE each summer during their school holidays .","J. and PERSON \u2019s foster mother died in DATE .","Section CARDINAL of ORG and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lag ang . v\u00e5rdnad om barn och umg\u00e4ngesr\u00e4tt CARDINAL\/CARDINAL ) defines what is meant by child custody and what is required from the person having custody .","ORG and Right of Access Act requires both the parents and the authorities to ascertain the wishes and views of the child when making and implementing a decision concerning the child , if this is possible in view of the age and stage of development of the child ( sections CARDINAL(CARDINAL ) , DATE , ORG ) , CARDINAL , CARDINAL(CARDINAL)(CARDINAL ) ; and sections GPE ) , CARDINAL ) and ( CARDINAL ) and PERSON ) ) . Court decisions concerning custody and access can not be executed against the will of a child who has attained DATE .","According to LAW ( lastensuojelulaki , barnskyddslag DATE \u201c the DATE LAW , as amended by PERSON no . GPE ) , a child who has attained DATE is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal against them .","In situations where the child does not live with its parents or where they are separated because of the need for protection or some other relevant reason , the child has in principle the right to maintain personal relations and contacts with its parents . However , this right may be limited on specific grounds and by certain procedures prescribed by law , for example , where there is a danger or threat caused by contacts or on the basis of the best interests of the child ( section CARDINAL of ORG and Right of Access Act ; sections CARDINAL(CARDINAL ) , CARDINAL and DATE of the DATE Act ; Articles CARDINAL and CARDINAL \u00a7 QUANTITY of the Convention on the Rights of the Child ) .","According to section CARDINAL of the CARDINAL Act , a child is entitled to a secure and stimulating growth environment and a harmonious and well - balanced development , and has a special right to protection . The objective of the DATE Act is that a child will in all circumstances get such care and upbringing as is required by ORG .","Where the parents or those who have custody of the child are not able to provide the child with sufficiently secure conditions for its growth and development , the social welfare board and its officials must take the necessary measures in accordance with LAW . These measures include the assistance in open care referred to in sections CARDINAL to CARDINAL and the duty to take a child into care and provide substitute care referred to in section CARDINAL .","According to section CARDINAL(CARDINAL ) of the CARDINAL Act ( as amended by PERSON no . GPE ) , where the need for child welfare is caused primarily by inadequate income , deficient living conditions or lack of housing , or when these factors constitute a serious obstacle to the rehabilitation of a child and family , or a young person in the process of becoming independent who had been a recipient of social welfare assistance before attaining DATE , local authorities must provide adequate financial support without delay and correct deficiencies in housing conditions or provide housing according to need .","Assistance in open care , referred to in DATE ) of LAW , includes general assistance in accordance with LAW ( sosiaalihuoltolaki , socialv\u00e5rdslag CARDINAL\/CARDINAL ) . In addition to general assistance , special forms of assistance are mentioned . These include voluntary help or help from a supporting family ; appropriate therapy ; holiday and recreational activities ; and assisting a child in his or her education and training , in job and home finding , and in his or her leisure activities and other personal needs , by providing financial and other support . The assistance must be provided in cooperation with the child or young person and the parents or other persons caring for him or her .","According to section CARDINAL of LAW , the social welfare board must take a child into care and provide substitute care for him or her if ( a ) the child \u2019s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by alcohol or drug abuse , by committing an illegal act other than a minor offence or by any other comparable behaviour ; ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) substitute care is considered to be in the best interests of the child .","If a child is in imminent danger for a reason stated in section CARDINAL or is otherwise in need of an urgent care order and substitute care , the social welfare board may take him or her into care without submitting the decision to the county administrative court for approval ( section CARDINAL of LAW ) .","ORG . According to section CARDINAL(CARDINAL ) of the DATE Act , substitute care must be provided without delay where it is needed and is in the best interests of the child .","An emergency care order expires within DATE of the decision unless a normal section CARDINAL care order is applied for during that period . Such a care order must be made within DATE or , on special grounds , within DATE of the emergency order . A decision on emergency care can be appealed against in the normal way .","Taking into care differs from adoption in that the parents are able to keep limited rights and responsibilities regarding custody and guardianship .","Care in accordance with section CARDINAL of LAW terminates when the child attains DATE or marries . Public care may be terminated earlier where the conditions for the termination of care exist .","According to section CARDINAL of the CARDINAL Act , the social welfare board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section CARDINAL , unless such discharge is clearly contrary to the best interests of the child .","On the custody of a child in care , section CARDINAL(CARDINAL ) of the DATE Act stipulates :","\u201c When the social welfare board takes a child into care , it shall be empowered to decide on the child \u2019s care , upbringing , supervision , other welfare and residence . The board shall , however , make every effort to cooperate with the parents or other persons having custody of the child . \u201d","Through a decision to take a child into care the social welfare board automatically takes over the power to decide on contacts between the child and its parents and other persons close to the child ( section CARDINAL(CARDINAL ) of the DATE Act ) .","According to section CARDINAL of LAW , a child who is in substitute care must be guaranteed the continuous and secure human relations that are important for his or her development . The child is entitled to meet his or her parents and other persons close to him or her and to keep in touch with them . The social welfare board must support and facilitate the child \u2019s access to his or her parents and to other persons close to him or her .","According to section CARDINAL of LAW , the social welfare board or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child , or ( b ) such a restriction is necessary for the safety or security of the parents , the children or the staff in the residential home . On the above - mentioned grounds , the social welfare board may decide that a child \u2019s whereabouts shall not be disclosed to its parents or custodians while the child is in care .","According to section CARDINAL of the DATE LAW CARDINAL of LAW ( lastensuojeluasetus , barnskyddsf\u00f6rordning DATE ) , a decision concerning restriction of the right of access is valid for a specified time , and it must name the persons whose rights are restricted . In addition , the decision must specify what kind of contacts are restricted and the scope of the restriction .","A decision to restrict the right of access restricts the child \u2019s right to meet its parents and other persons close to it . Such persons close to the child are the child \u2019s guardian or other legal representative , relatives and those persons who have kept in touch with the child before and after he or she was taken into care .","A care plan must be made for each case of family - oriented and individual child welfare , unless the matter under consideration requires only temporary counselling or guidance . This plan must be adjusted when necessary .","NORP In the case of a child taken into care ( section CARDINAL of LAW ) or a child placed in residential care as a form of assistance in open care ( section CARDINAL of the DATE Act ) the care plan must specify ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child \u2019s care and upbringing and for the child \u2019s parents ; ( c ) how the child \u2019s access to its parents and other persons close to the child will be organised ; and ( d ) how after - care will be organised .","According to section CARDINAL of LAW , the care plan must be drawn up in cooperation with those involved .","According to section CARDINAL of LAW , a social welfare board , with several members elected by the municipality , is responsible for providing social welfare in its area , and is charged with the responsibilities assigned to social welfare boards in other Acts .","According to section CARDINAL of LAW , the decision - making authority of a municipal social welfare board can be delegated to officials subordinate to the board , with the exception of decisions involving compulsory welfare for an individual .","According to section PERSON ) of LAW , a decision made by the social welfare board on taking a child into care or placing him in substitute care , must be submitted within DATE to the county administrative court for approval if a child who has attained the age of DATE or the persons having custody of him or her oppose the measure or if the hearing required by section CARDINAL(CARDINAL ) of the Act could not be arranged .","According to section DATE , decisions concerning taking into care or placement in substitute care can be appealed against in the county administrative court within DATE of notification of the decision . During that time , such an appeal may also be lodged with the local social welfare board , which must forward it to the county administrative court together with its own statement within DATE . The submission and the appeal shall in this case be dealt with and decided at the same time .","According to section CARDINAL(CARDINAL ) of the DATE Act , appeals against a decision on care orders , on placement in substitute care , on termination of care or on a matter concerning housing , as specified in section CARDINAL(CARDINAL ) of the LAW , made by the county administrative court in pursuance of this LAW , may be lodged with ORG .","According to section CARDINAL(CARDINAL ) of the DATE Act , decisions other than those contemplated in subsection ( CARDINAL ) , relating to family - oriented and individual child welfare rendered by the county administrative court in pursuance of LAW , can not be appealed against .","According to section CARDINAL(CARDINAL ) of LAW , a child who has attained DATE , his or her parents , the persons having custody of him or her or the person responsible for his or her care and upbringing or who was responsible immediately prior to the case in question , may appeal in cases concerning the taking of a child into care , placement in substitute care or termination of the care .","A person challenging a decision made by an official subordinate to a municipal social welfare board has the right , under LAW ( hallintomenettelylaki , lag om f\u00f6rvaltningsf\u00f6rfarande CARDINAL\/CARDINAL ) , to have the decision reviewed by a municipal social welfare board within DATE of being informed of the decision . The social welfare board \u2019s decision can be appealed against in the county administrative court .","According to section CARDINAL of LAW , a decision made by the social welfare board is subject to appeal to a county administrative court within DATE of service of the decision . Certain decisions by the county administrative court can be appealed against in ORG .","When the decision of an authority can be appealed against , the authority in question must attach to its decision information about the appeal procedure .","According to section CARDINAL of LAW , a decision made by a municipal social welfare board is enforceable notwithstanding any appeal if ( a ) the decision requires immediate implementation ; or ( b ) for reasons due to the arrangement of social welfare , the enforcement of the decision can not be delayed ; and ( c ) the social welfare board has ordered the decision to be enforced at once .","When an appeal has been lodged , the appellate authority can stay enforcement of the decision or order that enforcement be suspended .","Section CARDINAL(CARDINAL ) of ORG ( hallintolaink\u00e4ytt\u00f6laki , f\u00f6rvaltningsprocesslag ORG ) , which entered into force on DATE , contains rules on the right to an oral hearing before administrative courts .","According to ORG , a person DATE is , as a minor , legally incompetent . A child who has attained DATE is entitled to be heard in child welfare cases as stipulated in CARDINAL of LAW ; he or she is also entitled to request the support of the social services and other support mentioned in LAW .","Section CARDINAL(CARDINAL ) of the DATE LAW lists the parties to be heard in matters concerning taking a child into care , placing a child in substitute care and termination of care . According to this section , the following persons have the right to be heard in accordance with LAW CARDINAL of LAW : ( a ) the person having custody of the child ; ( b ) a biological parent who does not have custody of the child ; ( c ) a person currently in charge of the child \u2019s care and upbringing or who was in charge immediately prior to the case in question ; and ( d ) a child who has attained DATE . They must also be notified of a decision concerning the taking of a child into care and termination of care following the procedure for special notification . The authorities also have an obligation to inform them , where appropriate , of the possibility of an appeal .","Section CARDINAL(CARDINAL ) of LAW lays down a general obligation to hear the parties . Before any decision is made , a party must be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision .","NORP The county administrative board ( l\u00e4\u00e4ninhallitus , l\u00e4nsstyrelsen ) , in the capacity of a regional ORG authority , has general powers to supervise the activities of municipalities . Following a procedural appeal , the county administrative board can also investigate whether a local authority has acted in accordance with the law .","In addition , ORG and ORG supervises and directs , in its capacity as the highest authority in social welfare and health matters , the activities of municipalities and , when necessary , also the activities of the county administrative board in child welfare . Appeals concerning individual cases addressed to ORG and ORG are sent to the county administrative board , which decides on the matter at first instance .","The Parliamentary Ombudsman and the Chancellor of ORG ( oikeuskansleri , justitiekansler ) are empowered to supervise the legality of the measures taken by any authorities ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110807","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF CHELIKIDI v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant brought civil proceedings against the joint stock company \u201c DATE \u201d ( \u0430\u043a\u0446\u0438\u043e\u043d\u0435\u0440\u043d\u043e\u0435 \u043e\u0431\u0449\u0435\u0441\u0442\u0432\u043e \u201c NORP \u201d ) , subsequently known as the collective farm \u201c DATE \u201d ( \u0441\u0435\u043b\u044c\u0441\u043a\u043e\u0445\u043e\u0437\u044f\u0439\u0441\u0442\u0432\u0435\u043d\u043d\u0430\u044f \u0430\u0440\u0442\u0435\u043b\u044c \u201c NORP \u201d ) , seeking recovery of QUANTITY of sunflower seeds under a supply agreement .","On DATE the ORG granted the applicant \u2019s claim . The defendant was absent from the hearing .","On DATE the writ of execution was returned to ORG as it had not been possible to enforce it .","On DATE , following a request by the defendant , the ORG quashed the judgment of DATE and resumed the proceedings .","On DATE the applicant modified her claims and asked the court to order the defendant to pay her MONEY .","On DATE the ORG granted the applicant \u2019s claim . The judgment was not appealed against and became final .","The judgment could not be enforced because the defendant had insufficient funds .","On an unspecified date in DATE the applicant lodged a claim against ORG seeking compensation for damages incurred through the inappropriate administration of justice , notably the excessive length of proceedings in respect of her claims against the company . She argued that the courts had failed to observe the time - limits prescribed by LAW , which had undermined the possibility of enforcement of the final judgment in her favour .","On DATE the ORG of GPE dismissed the applicant \u2019s claim without consideration on the merits . Referring to Ruling no . ORG , adopted by ORG on DATE ( see paragraph CARDINAL below ) , ORG noted that current laws did not determine the grounds or procedure for adjudicating a claim for damages on account of failure by the courts to comply with statutory time - limits . In particular , the court noted as follows :","\u201c According to LAW , the rules of civil procedure in federal courts of general jurisdiction are determined by LAW , LAW , LAW and other federal laws .","The law has not determined the territorial and subject - matter jurisdiction over civil claims for compensation for damage incurred in civil proceedings in cases where a dispute has not been heard on the merits as a consequence of unlawful acts ( or failure to act ) of a court ( a judge ) , including breach of a reasonable - time guarantee .","Pursuant to LAW , the judge shall dismiss a statement of claim if the claim is subject to examination not in civil proceedings but in another judicial procedure . \u201d","On DATE ORG upheld the decision of CARDINAL DATE on appeal , finding as follows :","\u201c In dismissing the claim with reference to Ruling no . CARDINAL of DATE of ORG of GPE , the court came to the correct conclusion that its examination by a district court of general jurisdiction would only be possible if a federal law determined that the district court of general jurisdiction had territorial and subject - matter jurisdiction over such claims .","At the present time , however , neither the Code of Civil Procedure of GPE nor any other federal law ... determines the territorial and subject - matter jurisdiction over claims concerning compensation for damage caused by judicial acts not touching upon the merits of the case . \u201d","Article CARDINAL of the Civil Code contains general provisions on liability for the infliction of damage . It establishes that damage inflicted on the person or property of an individual must be reimbursed in full by the person who inflicted the damage ( Article CARDINAL \u00a7 CARDINAL ) .","Article CARDINAL of the Civil Code determines liability for damage caused by the unlawful actions of law - enforcement authorities or courts . In particular , it establishes that the federal or regional treasury shall be liable for damage sustained by an individual in the framework of the administration of justice provided that the judge \u2019s guilt has been established by a final criminal conviction ( Article CARDINAL \u00a7 CARDINAL ) .","By Ruling no . CARDINAL of DATE , ORG found that Article CARDINAL \u00a7 CARDINAL of LAW was compatible with LAW in so far as it provided for special conditions in respect of State liability for damage caused in the framework of the administration of justice . It clarified , nevertheless , that the term \u201c administration of justice \u201d did not cover judicial proceedings in their entirety , but only extended to judicial acts touching upon the merits of a case . Other judicial acts \u2013 mainly of a procedural nature DATE fell outside the scope of the notion \u201c administration of justice \u201d . State liability for damage caused by such procedural acts or failures to act , such as a breach of the \u201c reasonable length \u201d requirement of court proceedings , could arise even in the absence of a final criminal conviction of a judge if the fault of the judge had been established in civil proceedings . ORG emphasised , moreover , that the constitutional right to compensation by the ORG for damage should not be tied in with the personal fault of a judge . An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of LAW . ORG held that ORG should legislate on the grounds and procedure for compensation by the ORG for damage caused by the unlawful acts or failure to act of a court or judge and determine territorial and subject - matter jurisdiction over such claims .","Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW provides that a civil claim must be dismissed by a judge , in particular , if it is amenable to examination not in civil proceedings but in another judicial procedure ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57451","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":1981,"docname":"CASE OF BUCHHOLZ v. GERMANY","importance":2,"conclusion":"No violation of Art. 6-1;No violation of Art. 3;No violation of Art. 8;No violation of Art. 12","judges":"Gaukur J\u00f6rundsson","text":["Mr. PERSON was born in DATE and lives in GPE . From DATE he worked for the dry - cleaning firm of PERSON ; he was mainly employed as a driver until DATE and thereafter as , in particular , controller of branch establishments . On DATE , he was given notice that he was dismissed with effect from DATE of DATE as a result of rationalisation measures .","He took proceedings before the appropriate courts contesting the lawfulness of this notice ; in his submission , those courts did not determine his case within \" a reasonable time \" as required by LAW . CARDINAL ( article CARDINAL ) of the Convention .","On DATE , the applicant commenced an action before ORG claiming that his dismissal was \" socially unjustified \" ( \" sozial ungerechtfertigt \" ) within the meaning of section CARDINAL of LAW ( GPE ) . The other party ( \" the defendants \" ) served a defence on DATE , DATE before the expiry of the time - limit granted for this purpose by ORG .","At the first hearing on DATE , Mr. PERSON \u2019s lawyer submitted new written pleadings . ORG thereupon allowed an application by the defendants for time to reply and adjourned the case until DATE .","In their written reply of CARDINAL DATE , the defendants , as requested by ORG , gave a detailed account of the reasons for the contested dismissal ; they also described the economic situation of the firm and explained the rationalisation measures taken .","The applicant \u2019s lawyer appended to his counter - reply of DATE a note written to him by his client . This note contained the charge that the managers of the PERSON firm had \" negligently squandered the CARDINAL ( business and private assets ) properly earned by PERSON \" but had \" personally secured to themselves such a safe position that these people are no longer interested in whether or not the PERSON firm gets even deeper into the red \" .","These accusations prompted the defendants on DATE to send the applicant CARDINAL further notices of dismissal , an extraordinary notice ( ausserordentliche PERSON ) effective forthwith and , as an alternative or precautionary ( vorsorglich ) measure , an ordinary notice ( ordentliche PERSON ) with effect from DATE . The extraordinary notice was based on LAW ( ORG ) which requires a \" serious reason \" for a dismissal of this kind and the giving of notice within DATE from the moment when the employers had knowledge of the facts judged by them to constitute such a reason .","On DATE , Mr. PERSON \u2019s lawyer filed CARDINAL further sets of written submissions dated CARDINAL and DATE respectively ; appended to the former was a copy of the defendant \u2019s letter of DATE ; the latter extended the plaintiff \u2019s action to cover the CARDINAL dismissal notices of DATE .","At a hearing on DATE , ORG adjourned the proceedings until DATE as the GPE lawyer had only received the applicant \u2019s latest written pleadings at that hearing .","On DATE , the applicant \u2019s lawyer submitted another memorandum .","At the adjourned sitting on DATE , ORG , acting in accordance with the applicable legislation , proposed a friendly settlement , but the proposal was not accepted .","ORG delivered judgment on DATE immediately after hearing the final submissions of the parties . It held that neither the notice of CARDINAL DATE nor the extraordinary notice of DATE had terminated the applicant \u2019s contract , since the former was \" socially unjustified \" within the meaning of QUANTITY CARDINAL of LAW and the latter was invalid for lack of a \" serious reason \" as required by LAW . ORG also rejected an alternative request by the defendants for discharge ( Aufl\u00f6sungsantrag ) of the contract of employment in pursuance of section CARDINAL of LAW . It ordered the defendants to pay Mr. PERSON CARDINAL arrears of wages but dismissed the claim for future salary .","The judgment was notified in writing to the parties on DATE .","The defendants appealed to ORG on CARDINAL DATE . In their submission , the accusations made by Mr. PERSON constituted a \" serious reason \" warranting the extraordinary notice of DATE ; the CARDINAL ordinary notices of DATE and DATE were likewise valid , the former being \" socially justified \" for pressing reasons connected with the running of the business . They called on the ORG to overrule the judgment appealed from and to dismiss the plaintiff \u2019s action or , in the alternative , to discharge the contract of employment existing between the CARDINAL parties .","The applicant in turn lodged a cross - appeal ( ORG ) on DATE , seeking payment of arrears of wages for DATE .","The parties then filed written pleadings dated DATE and CARDINAL DATE ( the defendants ) and DATE ( Mr. PERSON ) . The applicant maintained his accusations against the managers of the firm and asked ORG to call for an expert \u2019s opinion in order to corroborate the allegations made .","In the course of this written procedure both the applicant and the defendants had requested ORG not to hold sittings during certain periods , namely from DATE to DATE for the applicant and from DATE to DATE and from DATE for the defendants .","Taking due note of this , ORG on CARDINAL DATE set the case down for hearing on DATE . On DATE , the ORG examined , amongst other matters , the exact circumstances surrounding the tendering in evidence of the applicant \u2019s accusations which had been appended to his lawyer \u2019s written pleading of DATE ( see paragraph CARDINAL above ) . When questioned whether he had intended use to be made of these accusations in the lawsuit , he stated that he had relied on the judgment of his lawyer . The ORG also raised the possibility of employing Mr. PERSON in some other capacity ; it directed the defendants to submit within DATE a chart setting out the firm \u2019s commercial staff structure , indicating for each post whether it was suitable for the applicant and , if not , the reason why .","The applicant was given DATE to reply .","The defendants filed the chart , with accompanying explanations , on DATE ; then , on DATE , they replied to a written pleading from Mr. PERSON which , though presented on DATE , had been communicated to them after the hearing of DATE .","On DATE , the applicant put forward a proposal for a friendly settlement , but this was rejected by the defendants on DATE . By letter of DATE , Mr. PERSON \u2019s lawyer filed a memorandum , dated DATE , containing comments by his client and asked the ORG to set the case down for an early hearing , thereby renewing a request he had already made on DATE , DATE before the defendants had refused the offer of friendly settlement . He stated , amongst other things , that \" the disproportionately long state of suspense [ had ] become physically and psychologically unbearable \" for Mr. PERSON .","On DATE , ORG decided to hold a hearing on DATE and transmitted to the defendants the above mentioned written pleadings of DATE .","On DATE , the applicant \u2019s lawyer addressed to the ORG ( ORG ) of the PERSON and GPE of GPE a petition seeking measures to expedite proceedings before the labour courts .","Early in DATE , as an apparent sequel to this petition and following an increase in the number of judicial posts ( see paragraph DATE below ) , ORG was able to establish a Sixth ORG . MONEY of the cases pending before ORG were referred to the new ORG , although the former continued to deal with the PERSON action .","The ORG advised the applicant in reply on CARDINAL DATE that the authorities had immediately taken the necessary steps to ease the workload of the labour courts .","The legal and factual questions to be decided were debated by the CARDINAL parties at the hearing held on DATE . At the close of the sitting , ORG made an order setting out the various points in issue and their possible implications as seen by the ORG ; it then proposed a settlement whereby the contract of employment would be considered as having terminated on DATE and the defendants would pay the applicant a lump sum of DM CARDINAL .","The ORG called on the parties to state their views by DATE .","By memorandum of DATE , the defendants refused the settlement proposal ; they referred to the \" undisputed \" fact that the QUANTITY notices of DATE had been served on the applicant on DATE .","For his part , Mr. PERSON \u2019s lawyer , in a written statement of DATE in which he paid tribute to ORG for its \" thorough and prudent examination of the case \" , declined to accept the suggested settlement ; he specified that he could only agree to such a solution if the contract were regarded as terminated on DATE .","In addition , on DATE he filed a brief reply to the above - mentioned memorandum of DATE . He contested the defendants\u2019 affirmations \" insofar as they deviate[d ] from the explanations \" given by his client , but he did not however specifically deal with the matter of the date of receipt of the QUANTITY notices of DATE . He added that he would be absent from CARDINAL May to DATE and requested ORG to fix a hearing in DATE","On DATE , ORG directed that the hearings should resume on DATE and so advised the parties on DATE .","At the hearing on DATE , Mr. PERSON denied that he had actually received the CARDINAL notices of DATE on DATE and asked the ORG to question on his wife on this point , which was material for the purposes of LAW ( see paragraph CARDINAL above ) . The Court acceded to this request . Mrs. PERSON , who was present in the court - room , confirmed the statements of her husband ; she asserted that the notices had been served DATE .","The defendants contested this testimony and asked for the counter - evidence of CARDINAL witnesses to be heard . The applicant objected to such a move on the ground that it would tend to protract the proceedings . The ORG nevertheless decided that Mr. PERSON , as well as the chief executive of the PERSON firm and the CARDINAL witnesses nominated by the defendants , should be heard on DATE . At the same time it invited the applicant , who had applied for free legal aid in the appeal proceedings , to supply the necessary certificate for that purpose .","The certificate was submitted under cover of a letter of CARDINAL DATE from Mr. PERSON \u2019s lawyer . Consequently , on DATE the ORG granted free legal aid for the applicant \u2019s defence against the main appeal ; it reserved its decision as regards his cross - appeal ( see paragraph CARDINAL below ) .","Earlier , on DATE , the applicant had challenged the above - mentioned decision of CARDINAL DATE before ORG . Complaining of the duration of the litigation and relying on LAW , DATE , DATE and DATE of LAW as well as LAW , he had sought from ORG an order requiring ORG to bring its consideration of the matter to an immediate close .","The case - file was sent to ORG which , sitting as a panel of CARDINAL judges ( section CARDINAL ( a ) of ORG , Bundesverfassungsgerichtsgesetz ) , gave judgment on DATE . The ORG refused leave for the constitutional application to proceed : even supposing the application to be admissible , it did not offer sufficient prospects of success since there was nothing in the evidence to show that ORG had protracted the proceedings ; having regard to the extreme complexity of the facts of the case , the length of the lawsuit had been caused primarily by the applicant who had continuously supplemented his submissions and called for the taking of further evidence .","The presiding judge of ORG , which was dealing with the applicant \u2019s case , retired on DATE .","On DATE , ORG heard CARDINAL witnesses in connection with the date of receipt of the dismissal notices . It reserved until DATE its decision whether , despite the objections of Mr. PERSON \u2019s lawyer , it should hear evidence from an additional witness nominated by the defendants and from Mr. PERSON , the chief executive of the PERSON firm .","On DATE , ORG granted the applicant free legal aid for his cross - appeal ( see paragraph CARDINAL above ) and directed that Mr. PERSON be called to give evidence on DATE .","By letter of DATE , the GPE lawyer , pleading a prior commitment , asked for adjournment of the hearing of Mr. PERSON ; he further specified that both he and Mr. PERSON would be on leave from DATE until DATE ORG granted this request on DATE and postponed the hearing until DATE","The applicant wrote on DATE to the Secretary to the Commission - his petition to the Commission having been lodged on DATE - to complain of this decision , but according to the Government there is no trace in the record of the case of his having entered any such objection before ORG .","On DATE , the representatives of both parties declared that the CARDINAL disputed dismissal notices had indeed been received by Mr. PERSON on DATE .","On DATE , ORG ordered that an expert opinion should be obtained on the question whether or not the applicant \u2019s accusations against the managers of the PERSON firm were justified ( see paragraph CARDINAL above ) . ORG , on being so requested , nominated an expert on DATE ; after hearing the parties , the ORG appointed the expert on DATE .","The expert \u2019s report was filed on DATE ; the ORG communicated it to the applicant and the defendants for comment by DATE .","The last hearing was held on DATE . The parties made their final submissions , following which ORG delivered its judgment . It allowed the GPE appeal and dismissed the applicant \u2019s cross - appeal , awarding the costs of the proceedings against him .","ORG held that the extraordinary notice of CARDINAL DATE was valid for the following reasons . The charges made by the applicant constituted a serious reason for dismissal within the meaning of paragraph CARDINAL of LAW and the dismissal notice had been served within DATE laid down by paragraph CARDINAL of that Article . The thorough and convincing explanations furnished by the expert made it clear that Mr. PERSON \u2019s accusations were without foundation ( haltlos ) : apart from being extremely defamatory , they were inappropriate and quite unnecessary for his cause of action contesting the ordinary notice of CARDINAL DATE ( see paragraph CARDINAL above ) .","The judgment was notified in writing to the parties on DATE .","With a view to bringing a petition for a review on a point of law ( Revision ) , Mr. PERSON applied on DATE to ORG for free legal aid ; his application was granted on DATE .","On DATE , he asked ORG for leave to petition notwithstanding expiry of the legal time - limit ; the ORG gave leave on DATE .","The petition which had been filed earlier on DATE , was transmitted to the defendants who replied in writing on DATE .","On DATE , ORG , after hearing the parties , proposed a settlement whereby the contract of employment would be considered as having terminated on DATE and the defendants would pay the applicant a lump sum of DM CARDINAL in addition to the ORG CARDINAL already paid as arrears of wages in compliance with ORG judgment .","The proposal was rejected by the defendants ; by judgment of DATE , ORG dismissed the petition for review as unfounded .","On DATE , Mr. PERSON challenged this decision before ORG alleging violation of several basic rights . He complained of the length of the proceedings before the various labour courts , citing this factor as the cause of the contested decision . He further criticised ORG for having terminated a lawsuit \" which in normal circumstances should not have been terminated yet \" ; in view of his application to the Commission , so he contended , ORG had \" clearly not wished to make the breach of the LAW more evident by continuing the proceedings \" . In addition , the applicant claimed that the judgment being challenged was unsustainable as far as its reasoning was concerned ( sachlich unhaltbar ) and constituted an unacceptable domestic sanction intended to punish him for having taken his case to the Commission .","On DATE , ORG refused leave for the constitutional application to proceed on the ground that it was inadmissible . The applicant had not , it was stated , identified with sufficient clarity any possible violation of his basic rights . In particular , his complaint regarding the length of the proceedings did not warrant a finding that the outcome of the action was incompatible with any of his basic rights ; this was likewise true of his submission that the reasoning of the judgment being challenged did not bear examination .","As in DATE ( see paragraph CARDINAL above ) , the Court had sat in judgment as a panel of CARDINAL judges .","For DATE after his dismissal , Mr. PERSON was paid DATE unemployment benefits ( PERSON ) under LAW ( ORG ) , that is to say , DM CARDINAL from DATE to DATE , DM CARDINAL from DATE to CARDINAL DATE and DM CARDINAL.CARDINAL until DATE . ORG ) refused , on DATE , to grant him unemployment welfare assistance ( PERSON ) thereafter on account of his wife \u2019s earnings . Since DATE , the applicant has been in receipt of a social security retirement pension ( NORP ) , the amount of which \u2013 originally ORG CARDINAL per month - has been periodically adjusted .","According to the Government , from DATE ORG endeavoured in vain to find the applicant some other employment , even offering financial help to potential employers .","As the result of an economic recession in GPE , the labour courts of appeal experienced a significant increase in their workload DATE . According to the statistics supplied by the Government at the request of ORG , the incidence of appeals from labour court judgments rose , as compared with DATE , by MONEY in DATE , by MONEY in DATE and by MONEY in DATE . In order to cope with this state of affairs , the relevant authorities increased the number of judicial posts by MONEY in DATE , by MONEY in DATE and by MONEY in DATE . There were MONEY more cases dealt with in DATE , MONEY in DATE and CARDINAL per cent in DATE .","As regards ORG in particular , CARDINAL appeals were entered in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE ; CARDINAL appeals were decided in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . The average length of proceedings progressed from DATE in DATE to DATE in DATE , but then fell to DATE in DATE , DATE in DATE and DATE . In this respect , ORG was more favoured than the labour courts of appeal of the other ORG where , nevertheless , a downward trend was also registered . Examination of the CARDINAL cases decided in DATE and DATE by ORG , which dealt with the PERSON appeal , showed , according to the Government , that CARDINAL cases were disposed of after CARDINAL hearing , CARDINAL cases after CARDINAL hearings , CARDINAL cases after CARDINAL hearings and QUANTITY cases after CARDINAL hearings .","Faced with the backlog of labour court business in the DATE \u2019s , the ORG tabled in the legislative assemblies in DATE a PERSON designed , amongst other things , to expedite proceedings before the labour courts . The resultant Act entered into force on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["12","3","6","8"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91123","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2009,"docname":"W. v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr C. Ingelse , a lawyer practising in GPE .",", may be summarised as follows .","On DATE the Juvenile Judge ( kinderrechter ) for criminal cases of ORG ( rechtbank ) found the applicant guilty of causing bodily harm ( mishandeling ) . The applicant was sentenced to a suspended term of juvenile detention ( voorwaardelijke jeugddetentie ) , a community service order ( werkstraf ) of TIME and a training order ( leerstraf ) of TIME .","In view of the applicant \u2019s conviction , and pursuant to LAW paragraph CARDINAL of the DNA Testing ( Convicted Persons ) Act ( Wet DNA - onderzoek bij veroordeelden ; \u201c the LAW \u201d ) , the public prosecutor , on DATE , ordered that cellular material be taken from the applicant in order for his DNA profile to be determined . A mouth swab was taken from the applicant on DATE .","On DATE the applicant , pursuant to LAW , lodged an objection ( bezwaarschrift ) against the decision to have his DNA profile determined and processed , i.e. entered into a national DNA database . He submitted that , in accordance with LAW , the personal interests of a minor should be balanced against the general interests of society when it was being considered whether to apply the LAW to that minor , and within that balancing exercise the interests of the minor should be the primary consideration pursuant to LAW . The applicant submitted that regard should be had to the age of the convicted person at the time of the commission of the crime , the seriousness of the offence , the circumstances under which the offence had been committed , the risk of the convicted person reoffending and other personal circumstances of the convicted person .","The applicant further argued that the public prosecutor had failed to strike a proper balance of the interests involved . In particular , the public prosecutor had failed to take into account that the applicant had only been DATE when he committed the offence , that the offence had consisted of the administration of CARDINAL blow with his fist , that the applicant was performing well at school and that he showed no risk at all of reoffending . The applicant also claimed that the storage of his DNA profile would not be beneficial for the possible detection , prevention or conviction of future crimes committed by him and that the exception contained in article CARDINAL paragraph CARDINAL sub b of the LAW ( see below ) should therefore apply .","On DATE ORG , having heard the public prosecutor and counsel for the applicant in camera , dismissed the applicant \u2019s objection . It considered that , if all requirements stipulated in the LAW had been met , the public prosecutor was obliged to collect a DNA sample from the applicant regardless of the fact that he was a minor . As regards the applicant \u2019s claim of a violation of LAW , ORG referred to the parliamentary discussions ( parlementaire behandeling ) on the adoption of the LAW , which had concluded that the LAW did not breach fundamental rights enshrined in the LAW and international treaties . ORG adopted these conclusions and LAW CARDINAL argument was accordingly dismissed .","ORG further noted that ORG had not featured in the parliamentary discussions . Being of the view that the determination and processing of the DNA profile of a minor could adversely affect that minor \u2019s interests , ORG considered that it ought to interpret the provisions of the LAW in the light of the text and aim of the Convention on the Rights of the LAW . With reference to LAW , it found that where the determination and processing of a minor \u2019s DNA profile were concerned , the interests of the minor and the general interests of the ORG in the prevention and detection of crime should be weighed against each other . ORG went on to observe that it appeared from the file that the applicant had severely injured his victim , that he had already performed TIME of community service to avoid criminal prosecution relating to an earlier charge of causing bodily harm , and that at the hearing the public prosecutor had disclosed that the applicant had in the meantime been apprehended on suspicion of attempted manslaughter . ORG held that in these circumstances the interests of the ORG outweighed those of the applicant . It further considered that the determination and processing of the applicant \u2019s DNA profile would not result in any adverse effects for the applicant relating to his young age since the DNA database was not public and stringent criteria on access to it were in place .","No appeal lay against the decision of ORG .","The statutory maximum prison sentence for the offence of assault causing bodily harm is DATE ( article CARDINAL paragraph CARDINAL of LAW , GPE ) . In the event that grievous bodily harm is caused , the statutory maximum prison sentence is DATE ( article CARDINAL paragraph QUANTITY of LAW ) .","The DNA Testing ( Convicted Persons ) Act entered into force on DATE .","LAW requires the public prosecutor at ORG that has given judgment at first instance to order that a sample of cellular material be taken from , inter alia , a person who has been convicted of CARDINAL of the offences listed in CARDINAL paragraph CARDINAL sub b of LAW ( PERSON ) . Assault causing bodily harm is one of those offences .","According to the explanatory memorandum to LAW ( Memorie van Toelichting ; ORG , no . CARDINAL , DATE session , no . CARDINAL ) , the seriousness of the offence(s ) involved justifies determining and processing a DNA profile of the convicted person in order to contribute to the detection , prosecution and trial of criminal offences committed by him or her and , if possible , to prevent him or her from again committing criminal offences .","Paragraph CARDINAL sub b of LAW sets out CARDINAL exceptions . No order for sample collection will be made if , in view of the nature of the offence or the special circumstances under which it was committed , it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention , detection , prosecution and trial of criminal offences committed by the person in question . It appears from the explanatory memorandum to this provision that the first exception of paragraph CARDINAL sub b , relating to the nature of the offence , may apply when a person has been convicted of a crime for the solution of which DNA investigations can play no meaningful role \u2013 perjury or forgery , for instance . The second exception , relating to the special circumstances under which the offence was committed , may apply to a convicted person who is most unlikely previously to have committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in the future , for example due to serious physical injury or in the case of a woman who has never had any dealings with the law and who , after having been ill - treated by her husband for DATE , finally inflicts grievous bodily harm on him or kills him .","LAW paragraph CARDINAL of the Act stipulates that DNA profiles are only to be processed for the purpose of the prevention , detection , prosecution and trial of criminal offences . It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by ORG ( algemene maatregel van bestuur ) , after ORG ( College Bescherming Persoonsgegevens ) has been heard . The rules in question have been set out in the DNA ( Criminal Cases ) Tests Decree ( Besluit DNA - onderzoek in strafzaken ) . It regulates how and by whom samples are to be taken ; how they are to be kept , sealed and identified ; how and by whom the DNA profile is to be drawn up ; and which authorities are allowed to make use of the data stored in the DNA database . The Decree further lays down rules on the duration of the retention of a DNA profile and cellular material . This depends on the offence of which the individual concerned has been convicted . The data of persons convicted of an offence carrying a statutory maximum sentence of DATE or more is retained for DATE . For less serious offences carrying sentences of DATE , cellular material and DNA profiles may be retained for a maximum period of DATE .","The individual concerned may lodge an objection against the determination and processing of his or her DNA profile with ORG within DATE after the sample has been taken or after he or she has been served with the notification , required by article CARDINAL paragraph QUANTITY , that sufficient cellular material has been collected for a DNA profile to be determined and processed ( article CARDINAL paragraph CARDINAL ) .","The documents relating to the enactment of the LAW contain no references to LAW . However , in a parliamentary discussion which took place on DATE the Minister of ORG said that he saw no reason to exempt juveniles from the application of the LAW or to establish a different regulation for them , since the chance of a convicted person reoffending was no less in the case of a minor than in that of an adult ( Handelingen Tweede Kamer \u2013 Records of ORG DATE , p. CARDINAL - CARDINAL - CARDINAL ) .","The compatibility of the LAW with the Convention on the Rights of the LAW was discussed in ORG when , in DATE , a number of amendments \u2013 not relevant to the present case DATE to the LAW were proposed . On that occasion the Minister of ORG replied to written questions of Members of ORG that the Convention on the Rights of the ORG intended for juvenile criminal law to provide an educational perspective in which the reaction to the commission of criminal offences by juveniles ought to be based on rehabilitation , the offering of a second chance and correction of , or compensation for , a failed upbringing . According to the Minister , the taking of cellular material for the purpose of DNA investigation was not contrary to those principles . On the contrary , he considered that the processing of their DNA profile in the national database could contribute to their social rehabilitation . He therefore saw no need to amend the LAW in this context ( GPE ( Parliamentary Documents ) , DATE , CARDINAL , nr . CARDINAL , p. CARDINAL ) .","After the entry into force of the LAW , different ORG reached different decisions on objections lodged by minors against the determination and processing of their DNA profiles . Whereas ORG considered that the full application of the LAW to persons who had been underage when convicted sat ill with the Convention on the Rights of the LAW in view of its stigmatising effect , others found that DNA testing following a conviction was not detrimental to a child \u2019s feelings of dignity and self - worth and did not stand in the way of the child \u2019s reintegration into society . CARDINAL ORG subscribing to this latter view considered that application of the LAW to a minor did not entail adverse consequences since information relating to the determination and processing of a DNA profile was not public and would only be used in a specific criminal case ; the DNA profile was stored in the DNA database anonymously and coded ; and the minor would subsequently not be confronted with his DNA profile unless it appeared \u2013 as a result of a comparison of his or her DNA profile with DNA profiles of traces found in unsolved criminal cases \u2013 that he or she had previously committed one or more offences or committed another offence in the future . It was concluded that no stigmatising affect attached to the processing of DNA profiles and cellular material of juveniles . Moreover , to the extent that the LAW aimed at dissuading convicted persons from reoffending , the processing of their DNA profile in the DNA database might have a preventive effect on the behaviour of minors ( ORG , DATE , GPE National Case - law ( database ) number , \u201c LJN \u201d \u2013 AUCARDINAL ) .","In view of the differing decisions taken by different ORG , the Procurator General at ORG ( PERSON ) lodged an appeal in cassation with that court in the interest of the law ( cassatie in het belang der wet ) in CARDINAL cases ( not including the present one ) . In its judgment of CARDINAL DATE ( PERSON ) , in which it had regard to the explanatory memorandum to the LAW and the parliamentary discussions on the adoption of the LAW , ORG considered that the basic premise of the text , goal as well as the tenor of the LAW was that cellular material be taken from every convicted person within the meaning of LAW paragraph CARDINAL of the LAW . The LAW did not differentiate between underage and adult convicts and the system of the LAW did not allow for any further balancing of interests . The public prosecutor was obliged to issue an order for cellular material to be taken unless one of the exceptions set out in paragraph CARDINAL of article CARDINAL applied . ORG concluded that the system , as intended by the legislator , of a wide opportunity for the taking of cellular material with CARDINAL exceptions that were to be narrowly interpreted , did not provide room for a generic exception for minors . Moreover , such a generic exception could also not be derived from ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77522","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF OKKALI v. TURKEY [Extracts]","importance":1,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings","judges":"Andr\u00e1s Baka;Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze","text":["The applicant , Mr PERSON ( \u201c Halil \u201d ) , was born in DATE and lives in GPE . At the material time he was DATE and worked as an apprentice in a garage .","On DATE , at TIME , the applicant was taken to the PERSON police station in GPE by his employer , ORG , who accused him of stealing MONEY ( GPE ) \u2013approximately CARDINAL United States dollars ( ORG ) DATE he had asked him to take to the bank . On returning to the garage he claimed that he had been robbed . According to the police report signed at TIME , the employer filed a complaint against PERSON .","At the police station the applicant was questioned by Superintendent GPE and Officer GPE","At TIME the police told the applicant \u2019s father , PERSON ( \u201c PERSON ) , what had happened and he went straight to the police station .","At TIME PERSON \u2019s father and employer reached an agreement . PERSON withdrew his complaint , and PERSON signed the following statement :","\u201c ... PERSON has recovered his money and withdrawn his complaint . I am therefore taking my son from the police station . I have no demand or complaint to make concerning my son . I do not want him to have a medical check - up ; my son was well treated at the police station and not ill - treated or tortured ... he was handed over to me in good shape and in good health ... \u201d","NORP However , once outside the police station , PERSON saw his son stagger , totter and vomit twice . Back at home , when PERSON was undressed , his parents and the neighbours present saw numerous injuries and bruises on his body . PERSON then told his father that he had been beaten by his interrogators . PERSON took PERSON to ORG .","Officer GPE , from the hospital \u2019s police desk , sent him to the casualty department . In a provisional medical report the doctor who examined PERSON made the following observations :","\u201c The subject is conscious ... He has QUANTITY bruises on his arms and legs and large bruises ( QUANTITY ) on both buttocks ... \u201d","PERSON was admitted to the paediatric ward .","On DATE returned to the police station to complain about the ill - treatment inflicted on his son and find out who had questioned him . He was given the name of GPE \u0130.D.","On DATE lodged a complaint against GPE and his subordinate officers with the public prosecutor of GPE ( \u201c the prosecutor \u201d ) . He asked for PERSON to be examined by a specialist in forensic medicine .","On DATE the prosecutor interviewed the applicant , who had been discharged from hospital TIME . He stated :","\u201c ... at the police station I was beaten by CARDINAL policemen in the toilets ; one was wearing glasses and the other had green eyes . CARDINAL of them was a superintendent , at least that \u2019s what they told me \u2013 I would n\u2019t know the difference . I would recognise the officers who beat me ... Later on ... my father and my uncle sorted things out with my boss and came to fetch me from the police station . On the way home I was sick . Then , when we got home and they undressed me , they saw the truncheon marks and took me to ORG ... \u201d","As his hand had been injured , PERSON had to \u2018 sign\u2019 the record of his interview with his fingerprint .","DATE , at the prosecutor \u2019s request , PERSON was examined by a doctor from ORG . In his preliminary report the doctor wrote :","\u201c PERSON has been examined . At this time his ... right forearm is immobilised in a plaster cast . He has bruising on the outside of his left arm which is a light violet colour in the middle and pale green round the edges , a pale green bruise on the left elbow , large bruises on both buttocks which are violet in the middle and pale green round the edges , and a pale green bruise on the lower back of the left thigh . It is noted that the subject was admitted to the paediatric ward at ORG , where he received emergency treatment ... for a fractured elbow . The final report will be drawn up on receipt of the hospital diagnosis and treatment report , the X - rays and the radiologist \u2019s report ... \u201d","On DATE the applicant was re - examined by another doctor from ORG , who reviewed the findings in the previous reports and stated :","\u201c Having noted the existence of yellowish bruises measuring QUANTITY on the left buttock , QUANTITY on the right buttock , QUANTITY on the lower back of the left thigh and QUANTITY on the left arm , and [ also ] a muscle tissue trauma on the left forearm ( which has been bandaged with a splint ) , we conclude that as a result of these injuries , which are not life - threatening , the subject should take DATE off work ... \u201d","On DATE the prosecutor questioned PERSON Denying the accusations , the superintendent said :","\u201c ... I did not beat the complainant . Besides , hardly TIME went by between the time when his employer brought him in and the time when he was released ... I did not inflict any torture on the complainant . [ Yes , ] I always wear glasses and it was me who talked to the boy ... \u201d","Chief Superintendent PERSON was subsequently appointed reporting officer to assist the prosecutor in investigating the case . On DATE GPE was brought before PERSON , who recognised him . The reporting officer then interviewed PERSON , who repeated what he had already said and added that GPE and GPE had hit him on the hands , \u201c backside \u201d and legs ; when he collapsed under the blows , they apparently took him to a cell and threatened to \u201c come back \u201d unless he told them where he had hidden the money .","The reporting officer then questioned GPE , who gave the following explanation :","\u201c ... at TIME the boy was handed over to his father . According to [ the complainant ] , the boy felt unwell at TIME and was taken to hospital , where a report was drawn up . This event was broadcast on the television channel FAC . Following that broadcast , I was suspended as of DATE . Contrary to what the boy and his father say , neither Officer PERSON nor myself hit [ the applicant ] with truncheons on the hands , backside or legs . ... He arrived at the police station at TIME and I stayed with him until he left at TIME When the boy was brought to the police station his face was dirty ... ; Officer GPE only took him to the toilets so he could wash his face ... The allegations are false ... we are wrongfully accused ... \u201d","On DATE , DATE , the reporting officer also interviewed PERSON \u2019s employer , PERSON , and CARDINAL officers from PERSON police station . PERSON testified in favour of the accused , stating that on DATE of the incident , from TIME , he had sat with GPE and neither GPE nor GPE had touched PERSON during that time . CARDINAL of the other police officers questioned said that there had been nothing wrong with the boy when he was handed over to his father , and the third said that he had seen no one ill - treat the boy .","On DATE the prosecutor showed PERSON photographs of the police officers on duty at \u00c7\u0131narl\u0131 police station . He identified GPE and GPE","On DATE the prosecutor interviewed GPE , who simply denied the accusations against him . DATE the reporting officer brought GPE before PERSON , who recognised him . The reporting officer then questioned GPE , who stated :","\u201c ... I was with PERSON at the time ; the boy was contradicting himself , he had dust and mud on his face ; his [ employer ] was with him . At the superintendent \u2019s request I took the boy to the toilets to wash his face , then took him back to the main office . Around TIME we telephoned his father , who came to fetch him . ... Nobody hit the boy ; if you ask me , his father ... or someone else angry about losing the MONEY probably gave him a good hiding ... \u201d","On DATE the reporting officer forwarded copies of the reports drawn up in the course of his investigations to the prosecutor ; they were included in the prosecution \u2019s case file no . CARDINAL\/CARDINAL .","On DATE , on receipt of the medical file that had been requested from ORG , the preliminary medical report of CARDINAL DATE was finalised . The final report confirmed all the earlier medical findings . It also mentioned other visible marks on PERSON \u2019s body : bruising on the upper and lower belly , a CARDINAL x QUANTITY bruise on the side of the left tibia , a bruise behind the left knee , wide bruises on the knees and the right tibia , and bruising on the left wrist , the right elbow , the back of the right hand , and in the groin area . The report indicated that PERSON would probably take DATE to recover .","On DATE the prosecutor indicted PERSON and Officer PERSON before the second section of ORG ( \u201c the ORG \u201d ) for violation of Article CARDINAL of LAW ( the obtaining of a confession by a public official by means of torture ) .","Proceedings before ORG commenced on DATE . All the parties attended the hearing on DATE . Their statements may be summarised as follows .","Superintendent GPE :","\u201c ... I never left my office at any time ; I did not strike the victim at all or order a police officer to hit or maltreat him to make him tell the truth ... ; I only asked Officer PERSON to take him to the washbasin and help him wash his face ... My mistake was not to have had the boy examined by a doctor before handing him over to his father ; if I had done that , there would be no case against me ... ; the complainant [ PERSON ] said that the money had been taken from him by force , so he might have sustained the injuries at that time ... [ PERSON ] was handed over to his father at TIME , but the medical report was obtained at TIME ; I even thought that the parents might be those [ really ] responsible for [ PERSON \u2019s ] condition , as , if ... he had shown any signs of the injuries described in the report , we would never have let him leave the police station [ in such a state ] ... \u201d","Officer PERSON :","\u201c I maintain what I said before [ to the reporting officer and the prosecutor ] ... ; I do not know why the complainant and the victim have made these accusations against us . \u201d","PERSON , the complainant :","\u201c ... When I arrived at the police station they had already questioned PERSON ... and my son . ... Then they brought my son ... who said to PERSON , \u2018 There you are , did you get what you wanted?\u2019 ; at the time I did n\u2019t realise what he meant ... ; it did n\u2019t register until I got him home and saw the injuries ... ; then they took my son to a cell ; when I went to the toilet I saw him lying down in the cell and told him to sit up properly , but he said he could n\u2019t ... My son spent DATE in intensive care at ORG ... ; they told me they had given him CARDINAL bottles of serum ... \u201d","PERSON , the victim :","\u201c ... at the police station that man ( pointing at ORG ) said , \u2018 Think carefully , you are going to tell me where the money LAW , then he ... took me into the toilets and hit me on the hands with a truncheon . At CARDINAL point I tripped and fell and the dustbin above me fell on my head . While I was down [ GPE started hitting me ] ; he put his boot over my mouth to stop me screaming ; then he went away saying , \u2018 Think carefully ; I \u2019ll be back\u2019 ; but he did n\u2019t come back ... Then my father and uncle arrived ; ... [ my father ] saw me in the cell and told me to sit up straight , but I could n\u2019t , because I was sore all over ... The superintendent beat me to find out where the money was ... ; GPE held me so I could n\u2019t move , but he did n\u2019t hit me . ... Neither my employer nor my father or my family beat me for losing the money ... \u201d","The applicant \u2019s lawyer applied , under LAW , to join the criminal proceedings as a civil party and reserved his rights to compensation . He also filed a list of prosecution witnesses he wished to call . These included the neighbours who had been present when PERSON returned from the police station and taken him to the hospital with his family . The court accepted these requests .","The trial court also heard evidence from ORG , who confirmed ORG version of the facts . In addition to what he had told the investigating authorities , the superintendent said that on DATE of the incident his colleagues at the police station had called him at TIME to tell him that PERSON had been admitted to hospital . He had gone to the hospital with another superintendent and other police officers , where he had been insulted by PERSON \u2019s friends and family , who allegedly even tried to attack him . He said he had not seen the applicant leave the police station with his father and had no idea what had possessed them to accuse the police when the matter had been settled between himself and PERSON .","PERSON gave evidence as follows :","\u201c Just before or after DATE someone by the name of PERSON , the minister \u2019s bodyguard ... , called me to fix an appointment ; he turned up at the appointed place , together with PERSON ... ; he explained that GPE \u2019s wife was pregnant and that if we \u2018 said the right ORG in court , his sentence might not be executed for DATE , until after the baby had been born . I refused , saying that if he [ GPE ] was so concerned about his unborn baby , how could I be expected not to worry about my own son ? \u201d","At the hearing on DATE , the trial court heard CARDINAL police officers from PERSON police station and CARDINAL prosecution witnesses . The police officers said that when PERSON had gone to the police station to pick PERSON up he had been asked if he wanted to have the boy examined by a doctor , but he had not deemed it necessary , as his written statement confirmed .","PERSON replied that there had been no such offer and that he had signed the statement without thinking , as he had been worried about his son \u2019s well - being .","Most of the prosecution witnesses confirmed the complainant \u2019s version of events and the applicant \u2019s uncle added :","\u201c ... I went to the police station with [ Mehmet ] ... PERSON showed no visible traces of violence but he looked as if he had been [ shaken up ] ; no one suggested that we might have him examined by a doctor before we left the police station ... We left the station at TIME ... ; as my nephew was getting into the car , he started to vomit ; I went back [ to the police station ] and spoke to the policeman at the door ; he said we could take [ PERSON ] to a doctor ... Even at the police station I had noticed small marks on [ PERSON \u2019s ] hands , but I thought nothing of it ; I knew \u2018 mishaps\u2019 sometimes occurred at police stations , but I certainly did n\u2019t expect to see what we [ found ] when we got home ... The same evening Chief Superintendent PERSON called my brother - in - law to the police station and I went with him . Chief Superintendent PERSON called in GPE and said to him , \u2018 Are n\u2019t you ashamed of yourself ? Brutalising a little boy?\u2019 ; GPE said , \u2018 I have been in the police for ... DATE and I did my duty ; what of it if I did hit him once or GPE ; then the chief superintendent said , \u2018 Let \u2019s go to the hospital and see this little boy you say you hit once or twice\u2019 . So we went to the hospital together and they saw the victim ; he was bleeding \u201c top and bottom \u201d , he had a tube in him ... \u201d","The defendants GPE and GPE denied all charges . At the hearing on DATE , their superior officer , PERSON , told the court :","\u201c ... I heard about the incident at TIME , when the boy \u2019s family contacted me ... ; I brought the parties face to face ... , but when the accused started to deny the accusations in front of [ the family ] ... I had to send them out of my office before something unpleasant happened ; ... to investigate the matter , and at the family \u2019s request , I went to the hospital , but without the ORG authorisation it was not possible for me to see the child , as he was in intensive care ... Back at the police station I questioned all the police officers on duty , who all maintained that they had seen nothing and knew nothing ... I went to see the victim once at his home . ... [ Apart from that ] , the defendant GPE never went with me to the hospital . When I brought the parties together face to face , the only thing GPE said was that he had done his duty ... \u201d","After the next hearing , on DATE , ORG pronounced judgment . It began by announcing its conviction that","\u201c ... having regard to all the evidence , including the reports in the case file , the statements made by the victim and the reports concerning the complaint , the accused did beat the victim in the course of their duty in the manner described in the [ medical ] report , to make him say where he had hidden the money ... \u201d","NORP However , ORG decided , by a majority , to reclassify the offence as \u201c assault and ill - treatment \u201d , as defined in LAW , rather than the verdict requested by the prosecution . The court based its decision on the fact that PERSON \u2019s employer had withdrawn his complaint ; he was therefore not accused of any crime and so it could not have been the GPE intention \u201c to obtain a confession \u201d within the meaning of Article CARDINAL , but rather simply \u201c to find out what had happened to the money placed in his care \u201d .","ORG decided to apply the minimum penalty and sentenced GPE and GPE to CARDINAL months\u2019 imprisonment and a DATE suspension from duty . Taking into account the defendants\u2019 good behaviour during the trial and considering that they had confessed , albeit reluctantly , ORG reduced the sentences to DATE and DATE , in conformity with LAW of LAW . Then , by virtue of sections PERSON ) and CARDINAL ) of PERSON no . CARDINAL , it commuted the prison sentences to fines of GPE CARDINAL ( about USD CARDINAL) , then ordered a stay of execution as the defendants had no criminal record and the judges were convinced that they would not reoffend .","The applicant \u2019s counsel appealed against the judgment on various points of law , including violation of LAW .","By a decision of CARDINAL DATE , ORG admitted the appeal and set aside the impugned judgment for misclassification of the offence , which the higher court considered amounted to extortion of a confession as defined in Article CARDINAL of LAW . The case was accordingly referred back to ORG .","In his written pleadings dated DATE , GPE submitted :","\u201c I maintain my previous submissions to ORG and declare that I did not commit the offence of which I am accused ; I did not subject the complainant to any violence or ill - treatment . I accordingly ask the ORG to acquit me . In the alternative , and without admitting to any guilt , I beg the ORG to uphold its initial classification if it decides to convict me , as the facts that constitute the offence defined in LAW have not been established in the present case ... \u201d","On DATE , after re - examining the case , ORG complied with the decision of the higher court and convicted GPE and GPE of contravening LAW and , once again , sentenced them to the minimum penalties : DATE imprisonment , enforceable immediately , and CARDINAL months\u2019 suspension from duty . These sentences were subsequently reduced to CARDINAL months\u2019 imprisonment and CARDINAL months\u2019 suspension from duty , under LAW of LAW . Then , for the reasons stated in the judgment of DATE , the sentences were suspended under LAW no . CARDINAL .","NORP The applicant \u2019s lawyer again appealed to ORG to set aside this judgment . Deploring that the defendants had been given the benefit of LAW of LAW and LAW no . CARDINAL , he submitted , in particular :","\u201c As to the application of the minimum penalty : ... on DATE , under suspicion of theft and misappropriation , the victim ... was taken to the police station , where he was beaten with a truncheon and kicked ... by police officers in an attempt to extort a confession ... The victim was DATE when he was subjected to this torture . When a child that age is tortured he suffers not only physical pain but also irreversible psychological damage that can affect his whole future ... Defendant GPE , who was a superintendent at the material time and is [ now ] a chief superintendent , was a public official acting as the officer in charge . It was his duty not only to abide by the law but also to make sure the men under his orders did so ... The sentences handed down ... against the defendants are manifestly contrary to the public interest which underlies Article CARDINAL of LAW . They are likely to undermine society \u2019s confidence in the forces of law and order ...","As to the application of LAW of LAW : ... as mentioned above , the offence in issue here is generally considered to be one of the most serious . The [ ORG \u2019s ] view that the defendants felt remorse is unsubstantiated . Throughout the trial they constantly denied the charges ; they even went as far as to suggest that the victim might have been beaten by [ his parents ] . It is inadmissible that someone who denies the charges should be considered to regret their misconduct ...","As to the suspension of the sentences : ... the enclosed newspaper article reveals that defendant GPE had previously been tried for assault on CARDINAL people and abuse of office ... Even though he was acquitted for lack of evidence , it shows the defendant \u2019s propensity to commit such offences ... \u201d","In a judgment of DATE , ORG upheld the judgment of CARDINAL DATE , without replying to the above points of law . As the applicant \u2019s counsel was not notified of this judgment , he did not become aware of it until DATE .","On DATE the applicant \u2019s lawyer claimed MONEY from ORG in respect of non - pecuniary damage . When the ORG refused to entertain the claim , the family lodged a claim for damages against the ORG with ORG ( \u201c the court \u201d ) on DATE .","In a judgment of DATE , the court dismissed the claim as being time - barred under LAW no . CARDINAL ( see paragraph CARDINAL below ) . As the starting - point of the DATE limitation period provided for in that law , the court took the date on which the applicant had obtained the medical certificate , that is , DATE , explaining that the subsequent criminal conviction of the police officers responsible had no bearing on the calculation of the time - limit .","The applicant \u2019s lawyer appealed to ORG . In a judgment of DATE , ORG dismissed the appeal and upheld the judgment of DATE .","The lawyer then applied for rectification of the judgment , arguing , inter alia , that the way in which the limitation rule for actions against administrative acts had been interpreted and applied in this case was at variance both with administrative law and with international legislation on the prevention of ill - treatment , in so far as the treatment to which the applicant had been subjected amounted not to any ordinary administrative act but to torture . He submitted that the period during which his client was entitled to sue for damages had not started until DATE he had been informed of the final conviction decision , namely , DATE , the date on which the criminal nature of the impugned act had been finally established .","In a final judgment of DATE , ORG confirmed the judgment of DATE by a majority of CARDINAL judges to CARDINAL .","The relevant provisions of LAW are as follows .","\u201c Any public servant ... who inflicts torture or cruel , inhuman or degrading treatment on accused parties to make them confess their crimes shall be sentenced to up to five years\u2019 imprisonment and temporarily or permanently barred from public service . \u201d","\u201c Prison sentences :","Life imprisonment shall mean imprisonment until death . Unless explicitly provided otherwise [ herein ] , other immediately enforceable prison sentences shall range from CARDINAL to DATE . \u201d","\u201c Any law - enforcement officer ... who , in the course of duty ... and in circumstances other than those prescribed by law ... , ill - treats , injures or strikes a person or does them bodily harm shall be sentenced to CARDINAL months\u2019 and CARDINAL years\u2019 imprisonment and temporarily barred from public service . ... \u201d","\u201c The judge has full discretion to determine the principal sentence , which can vary between a minimum and a maximum , taking account of factors such as the circumstances in which the offence was committed , the means used to commit it , the importance and seriousness of the offence , the time and place at which it was committed , the various special features of the offence , the seriousness of the damage caused and the risk [ incurred ] , the degree of [ criminal ] intent ... , the reasons and motives for the offence , the aim , the criminal record , the personal and social status of the perpetrator and his conduct following the act [ committed ] . Even if the minimum sentence is imposed , the reasons for that choice must be stated in the judgment . \u201d","\u201c If the court considers that there are mitigating circumstances other than those prescribed by law ... , the death penalty shall be commuted to life imprisonment , and life imprisonment to DATE .","Other penalties shall be reduced by a maximum of CARDINAL . \u201d","Sections DATE and CARDINAL of PERSON no . CARDINAL , establishing youth courts and regulating their jurisdiction and the procedure before them , cover the preliminary investigation of juvenile delinquency .","\u201c The term minor , for the purposes of this law , shall mean persons DATE at the time when the offence was committed . \u201d","\u201c The preliminary investigation of offences committed by minors shall be carried out by the public prosecutor in person or by a deputy appointed by him . \u201d","Article CARDINAL of the Code of Criminal Procedure as it stood at the material time stipulated that , from the time of their arrest , minors should have the assistance of an officially assigned counsel without having to ask for it .","Sections CARDINAL(CARDINAL ) and CARDINAL ) of PERSON no . CARDINAL on the execution of sentences read as follows :","\u201c Short custodial sentences which do not have to be served immediately may , depending on the personality and situation of the defendant and the circumstances in which the offence was committed , be commuted by the court :","( CARDINAL ) to a heavy fine ... of MONEY per day ; \u201d","\u201c The court may decide to suspend the execution of a fine and\/or a prison sentence of DATE ... if it is convinced , taking into account the offender \u2019s criminal record and potential to commit crime , that there is little risk of any further offence being committed , and provided that the offender has never been sentenced to anything other than a fine . The reasons for suspending the sentence must be stated in the decision . \u201d","Regulation CARDINAL , paragraph CARDINAL , of the disciplinary regulations of the security forces stipulates :","\u201c The following acts , actions and conduct shall be punished by expulsion from the public service :","...","Inflicting torture on any person ... on police premises ; \u201d","Section CARDINAL of Law no . CARDINAL states :","\u201c Before initiating administrative proceedings , people whose rights have been violated as a result of administrative acts shall submit a claim for damages to the administrative authority concerned within DATE of the date on which they received notification of the impugned act , in writing or otherwise , and , in any event , within DATE of the impugned act . An administrative action may be brought if that claim is rejected , in whole or in part , by the administration . The time - limit for such administrative action shall be calculated from DATE after notification of the claim \u2019s rejection was received or , if the claimant has received no reply , from the expiry of the DATE period the administration has in which to reply . \u201d","Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant \u2019s guilt ( Article CARDINAL ) .","In NORP criminal - law practice a confession is said to be \u201c tevilli \u201d ( \u201c qualified \u201d , a confession of a complex type ) when the person confessing to the offence simultaneously invokes circumstances that may be considered to exonerate them or mitigate their guilt : examples are self - defence in a murder case , or something that cancels liability in a criminal case , such as having paid the price for the object one is accused of stealing . Such confessions are considered to be divisible , so the courts may distinguish between the part of the confession acknowledging the offence and the part explaining why it was committed , and choose to admit only the confession , not the reasons given .","At the ORG \u2019s request , the ORG supplied the following information concerning the practical interpretation in criminal law of the legal definition of the tevilli confession , which they translate as \u201c tacit \u201d confession :","\u201c ... The court must decide in what circumstances the offence may be attributed to a person who clearly denies all the charges . In criminal law the trial court may base its judgment on the incriminating evidence and convict a defendant who denies everything if there is a body of consistent evidence pointing \u2018 beyond reasonable PERSON to his guilt . When the court evaluates the evidence , if the defendant can not prove that he was not at the place where the offence was committed on the material date and at the material time and , according to the evidence in the case file , the offence could not have been committed by anyone else , the court may [ find ] the defendant guilty . \u201d","As to judicial practice in respect of the application of minimum sentences , the Government were unable to present examples , as requested by ORG , of judgments explaining why the criminal - court judge had imposed a sentence heavier than the minimum prescribed by law . They simply explained that the courts had a certain discretion when it came to passing sentence between the upper and lower limits , the aim being to prevent repeat offences ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-118756","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2013,"docname":"\u00c7\u0130\u00c7EK AND OTHERS  v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Paulo Pinto De Albuquerque;Peer Lorenzen","text":["The applicants in application no . CARDINAL\/CARDINAL , PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , PERSON , PERSON , PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in the town of GPE , near GPE . They were represented before the ORG by PERSON GPE , a lawyer practising in GPE .","The applicants in application no . CARDINAL\/CARDINAL , PERSON , Ms PERSON , PERSON , Mr PERSON , Ms PERSON , PERSON , PERSON , PERSON and Ms PERSON , are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in the town of GPE , near GPE . They were represented before the ORG by PERSON GPE , a lawyer practising in GPE .","The applicants in application no . QUANTITY , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by PERSON PERSON , Mr GPE and Mr PERSON , lawyers practising in GPE .","The applicant in application no . CARDINAL\/CARDINAL , PERSON , is a NORP national who was born in DATE and lives in \u015e\u0131rnak . She was represented before the ORG by Mr PERSON and PERSON PERSON , lawyers practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent .","The facts of the cases , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .","The first applicant \u2019s husband and the remaining applicants\u2019 father , PERSON , lived in the village of NORP , which is located within the administrative jurisdiction of GPE , in south - east GPE .","According to the applicants , on DATE a number of soldiers took PERSON from his home in order to use him as a guide during a military operation conducted in the area . The applicants\u2019 neighbours witnessed the incident . Nothing has been heard from PERSON since that date .","On DATE an article was published in a DATE newspaper stating that PERSON corpse had been found . The applicants were not informed of this event by the authorities .","On an unspecified date the first applicant filed a petition with the NORP public prosecutor \u2019s office and requested that an investigation be initiated into her husband \u2019s disappearance . On DATE the NORP public prosecutor issued a decision based on a lack of jurisdiction ( g\u00f6revsizlik karar\u0131 ) and passed the investigation to the ORG military prosecutor \u2019s office .","On DATE the first applicant filed a petition with the NORP public prosecutor \u2019s office . In her petition , she stated that DATE after the disappearance of her husband , she had found a body in the vicinity of their village . She had thought that it was her husband , as she had recognised the buttons of the shirt on the body . Noting that there had been no investigation into PERSON disappearance , she requested that an investigation be conducted .","On DATE the NORP public prosecutor heard the first applicant , who reiterated her request .","On DATE the NORP public prosecutor issued a decision not to prosecute in respect of the first applicant \u2019s allegations . In his decision , the public prosecutor noted that the first applicant had filed a petition with the public prosecutor \u2019s office in DATE , at which time she had also handed over a raincoat and empty cartridges which she had found in the vicinity of their village to the public prosecutor , and that there had been a previous decision not to prosecute issued on DATE which had been based on a lack of jurisdiction . He further noted that the first applicant had not submitted any new evidence and that her previous allegations had already been dealt with by the public prosecutor \u2019s office . The public prosecutor concluded that there was no reason to initiate an investigation into the first applicant \u2019s complaints .","On DATE PERSON objected to the decision of DATE . The objection was rejected by ORG on DATE .","In the meantime , on CARDINAL DATE the NORP public prosecutor issued a decision based on a lack of jurisdiction in relation to CARDINAL cases of disappearance , including that of PERSON . In his decision , the public prosecutor noted that it had been alleged that PERSON body had been found . The public prosecutor referred the cases to the NORP public prosecutor \u2019s office .","On DATE the ORG military public prosecutor \u2019s office issued a decision based on a lack of jurisdiction in relation to the aforementioned CARDINAL cases of disappearance , including that of PERSON , holding that the military public prosecutor \u2019s office at ORG had jurisdiction .","The first applicant \u2019s husband and the remaining applicants\u2019 father , PERSON , lived in the village of GPE , which is located within the administrative jurisdiction of GPE , in south - east GPE .","According to the applicants , in DATE PERSON was taken from his house by a group of soldiers so that he could help them by using his familiarity with the area to act as a guide . CARDINAL neighbours witnessed the incident . Nothing has been heard from him since that date .","NORP The mayor of the town of NORP and mayors of the nearby towns sent a joint letter to the office of the Prime Minister . In their letter the mayors stated that large scale military operations had been conducted in their areas in DATE . During the operations a large number of houses had been burnt down and a number of villagers \u2013 including Mr DATE had been taken away by the soldiers . The bodies of CARDINAL of the villagers had subsequently been found but nothing had been heard from the remaining villagers . No response was given to this letter by the Prime Minister \u2019s office .","In DATE the applicant PERSON made an official complaint to the Hozat prosecutor . However , on DATE the prosecutor decided that military prosecutors had jurisdiction to investigate the disappearance . In DATE the applicants made an application to the ORG military prosecutor and asked for those responsible for the disappearance to be prosecuted .","As no response was received from the military prosecutor , the family submitted another petition on DATE . They also stated in their petition that the military prosecutors were not allowing them to consult the investigation file .","On DATE the ORG military prosecutor \u2019s office informed the applicants that the investigation file had been forwarded to the ORG prosecutor .","On DATE the ORG prosecutor decided that his office lacked jurisdiction to investigate the killings and disappearances of CARDINAL people , including the disappearance of Mr PERSON . The investigation files were forwarded to the prosecutor \u2019s office in the town of NORP . According to this decision , the first applicant , PERSON , had been questioned by the prosecutor and had stated that her husband had been taken away from their home by soldiers .","On DATE the ORG military prosecutor decided that his office also lacked jurisdiction to investigate the disappearances and killings and sent the investigation files to the military prosecutor \u2019s office in GPE . It appears from this decision that the NORP prosecutor had decided on DATE that his office did not have jurisdiction either . It also appears from the decision that , according to the NORP prosecutor \u2019s decision , there was evidence showing that a number of villagers had been taken away from their villages by soldiers and that nothing had been heard from those villagers since .","According to the applicants , on DATE the first applicant \u2019s husband , PERSON , and the second applicant \u2019s son , PERSON , were bundled into an unmarked car in GPE by CARDINAL plain - clothed members of the security forces and taken away to an unknown location . CARDINAL of their friends witnessed the incident .","In the course of DATE , the applicants and their families made a number of applications to various domestic authorities , including the local prosecutors , ORG , local governors , ORG and ORG . Most of their requests for information received no response . On some occasions they were told that the QUANTITY men were not in custody . The disappearance of the QUANTITY men was reported in the national media .","On DATE the first applicant , PERSON , submitted a written petition to the ORG prosecutor . She alleged that her husband had been arrested and detained on a number of occasions prior to his disappearance on DATE . She asked the prosecutor to inform her as to whether there had been any developments in the investigation into the disappearance of the CARDINAL men .","On DATE the second applicant , PERSON , also submitted a written petition to the ORG prosecutor and asked for information about the investigation into the disappearance of her son .","On DATE the prosecutor questioned the second applicant and recorded her statement . She gave the prosecutor the names of the eyewitnesses to the incident .","On DATE the applicants were questioned by a prosecutor in the town of Silopi in the presence of their CARDINAL lawyers . The first applicant gave the prosecutor a copy of a national newspaper article published in DATE , in which it was reported that the CARDINAL men had been killed by members of the security forces and then buried in a river bed next to LOC . The newspaper article was based on information given by Mr FAC , a former agent of the GPE ( PERSON Ter\u00f6rle M\u00fccadele \u2013 the anti - terror intelligence branch of the gendarmerie ) . A number of investigations had already been instigated into Mr PERSON \u2019s allegations and the bodies of a number of individuals had been found in the locations described by him .","When the applicants were shown photographs of the bodies of people killed in the area , they told the prosecutor that CARDINAL of the dead men looked like their disappeared relatives . They asked the prosecutor to identify the bodies and , if it was established that the bodies were indeed those of their relatives , they asked for the bodies to be returned to them .","The prosecutor ordered the exhumation of the remains of CARDINAL people who had been killed in DATE and whose bodies had been buried by the local authorities DATE because no relative had claimed them . A DNA analysis conducted in DATE showed that the CARDINAL men were not the applicants\u2019 disappeared relatives .","On DATE the ORG prosecutor decided to close the investigation because the statute of limitations had expired . In the prosecutor \u2019s decision , the offence was qualified as \u201c deprivation of liberty \u201d , for which the prescription period was DATE . The prosecutor considered that nothing had happened in the course of DATE to stop the running of the time - limit . According to the documents submitted by the applicants , the prosecutor \u2019s decision was only communicated to the first applicant , PERSON .","On DATE the first applicant , with the assistance of her lawyer , lodged an objection with ORG against the prosecutor \u2019s decision . She stated that a number of newspaper articles had detailed how her husband and PERSON had been killed and where they were buried .","The objection was dismissed by ORG on DATE . ORG did not respond to the first applicant \u2019s arguments concerning the newspaper articles . The decision was communicated to the applicants\u2019 lawyer on DATE .","In DATE the applicant \u2019s DATE son , PERSON , was summoned to the Uludere FAC . When he failed to return , the applicant went to the gendarmerie station to look for him . She was told that her son had been handed over to the military in \u015e\u0131rnak .","After receiving no news from her son for DATE , the applicant made an official complaint at the Uludere prosecutor \u2019s office on DATE , and asked for her son to be found .","In DATE the Uludere prosecutor decided that he lacked jurisdiction to investigate the disappearance because , according to CARDINAL eyewitnesses heard by him , the applicant \u2019s son had disappeared in PERSON , which was outside his jurisdiction . The prosecutor therefore forwarded the file to his opposite number in PERSON . It also appears from the prosecutor \u2019s decision that , in a letter sent to him on DATE , the Uludere ORG officials denied having summoned the applicant \u2019s son to their station .","The applicant claimed that for a period of DATE she had visited various ORG offices on CARDINAL of occasions and had asked unsuccessfully for information about her son .","On DATE the applicant , with the assistance of CARDINAL legal representatives , sent a letter to the PERSON prosecutor \u2019s office and asked for information about the investigation into the disappearance . She claimed that the failure to find and prosecute those responsible for her son \u2019s disappearance was in breach of ORG , DATE and CARDINAL of the LAW and of applicable domestic law .","On DATE the \u015e\u0131rnak prosecutor informed the applicant that the investigation into the disappearance of her son had been closed on DATE by a decision of his office not to prosecute on account of a lack of evidence .","According to the decision of DATE , the \u015e\u0131rnak prosecutor \u2019s office had been informed by ORG on DATE that PERSON had not been detained by them . The PERSON prosecutor had also enquired as to the accuracy of CARDINAL eyewitness statements to the effect that PERSON had been put in a helicopter in Uludere and flown to PERSON . In their reply of DATE ORG had informed the PERSON prosecutor that , although there were no regular helicopter flights between Uludere and PERSON , the military did use helicopters between the CARDINAL locations when the need arose . Thus , it was impossible to establish whether a helicopter flight had been made to Uludere on DATE in question .","It also appears from the prosecutor \u2019s decision that the applicant had informed the investigating authorities that ORG Commander had visited a caf\u00e9 in Uludere and told those present in the caf\u00e9 , which had included civilians and village guards , that PERSON was in PERSON and would soon be released . When questioned by the PERSON prosecutor , however , the village guards present during the commander \u2019s visit had stated that the commander had not said anything about PERSON .","Upon receiving the \u015e\u0131rnak prosecutor \u2019s decision of DATE on DATE , the applicant \u2019s legal representatives filed an objection against it . They argued that the investigation by the PERSON prosecutor had been inadequate . They submitted that important leads had not been followed up , not all eyewitnesses had been heard , and the prosecutor had been content to accept the written replies received from the military , rather than questioning them in person .","The objection was rejected by ORG on CARDINAL DATE on the grounds that the CARDINAL legal representatives \u201c had not been representing the applicant at the time of the adoption of the prosecutor \u2019s decision of DATE and the objection was thus filed outside the statutory timelimit \u201d .","ORG decision was communicated to the applicant \u2019s lawyers on CARDINAL DATE .","Unbeknown to the applicant , on DATE the Minister of ORG asked ORG to set aside the ORG judgment because , the Minister argued , the applicant had lodged the objection within the time - limit foreseen in the applicable statute .","ORG accepted the ORG \u2019s request on CARDINAL DATE and quashed ORG decision of CARDINAL DATE . Subsequently , ORG examined the applicant \u2019s objection against the PERSON prosecutor \u2019s decision and accepted it . ORG ordered the prosecutor to carry out a new investigation into the disappearance of the applicant \u2019s son .","The new investigation started by the \u015e\u0131rnak prosecutor is still pending ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22775","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2002,"docname":"BENACKOVA v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in ORG .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the applicant filed a claim for damages with ORG . She claimed compensation under LAW of DATE on the ground that the sum of CARDINAL NORP korunas ( SKK ) had been unlawfully withheld from her old - age pension between DATE and DATE . The applicant relied on a decision of DATE , delivered by ORG , according to which the decision to withhold a part of the applicant \u2019s pension with a view to recovering a sum of money due by her had been erroneous . The applicant appointed her daughter to represent her in the proceedings .","On DATE ORG proposed in writing that the court take relevant evidence and decide on its basis . On DATE the applicant submitted further arguments to ORG .","On DATE ORG adjourned the case with a view to hearing a representative of the defendant and studying the case - file concerning the withholding of the sum in question .","On DATE and on DATE the president of ORG dismissed the applicant \u2019s complaints about the length of the proceedings . The applicant was informed that the case could not be proceeded with as the relevant case - file was being examined by ORG in the context of a different set of proceedings . The applicant objected that her case could be proceeded with as she had submitted all relevant information and evidence .","On DATE the president of ORG informed the applicant that the examination of the case - file concerning the enforcement in question was necessary before proceeding with the applicant \u2019s action , and that that case file was still with ORG .","On DATE the Bratislava II ORG heard the representative of the defendant Ministry at the request of ORG . The representative of the defendant stated that ORG had no objection to the applicant \u2019s claim being granted in accordance with the relevant provisions of LAW of DATE .","On DATE the Topo\u013e\u010dany ORG ordered the defendant to pay SKK CARDINAL to the applicant in compensation for damage which she had suffered as a result of the above erroneous enforcement . The damages granted comprised the statutory default interest in respect of the sum which had been withheld between DATE and DATE and the expenses incurred by the applicant in the context of the enforcement . The court noted that the sum erroneously withheld had already been returned to the applicant .","The ORG further granted SKK CARDINAL to the applicant in compensation for her representative \u2019s travelling costs and other expenses incurred in the context of the proceedings concerning her claim for damages . ORG dismissed the applicant \u2019s claim for compensation for the time which her representative had spent travelling to the court hearings . The decision stated , with reference to Regulation No . CARDINAL , that such compensation was only payable to advocates . The judgment became final on DATE .","Section CARDINAL ( CARDINAL ) of Act No . TIME on the liability of the ORG for damage caused by a ORG organ \u2019s decision or by its erroneous official action ( \u201c LAW \u201d ) provides that the ORG is liable for damage caused by unlawful decisions delivered by a public authority in the context of , inter alia , civil proceedings .","In accordance with the ORG practice , LAW does not permit granting compensation for damage of non - pecuniary nature with the exception of compensation for damage caused to a person \u2019s health which is governed by Regulation No . CARDINAL .","Regulation No . CARDINAL\/CARDINAL governs the payment of advocates\u2019 fees and expenses .","Section CARDINAL provides that advocates are entitled to compensation for travel time outside the place of their residence in the context of representing their clients ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23963","languageisocode":"ENG","respondent":"AZE","branch":"ADMISSIBILITY","date":2004,"docname":"BABAYEV v. AZERBAIJAN","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mrs L. Madatova , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant 's father , before his death , owned a part of a non - residential building used as a garage . At the material time , according to the applicant , the garage was used by T.B. under a lease agreement .","In DATE , the applicant 's father died and the applicant formally registered his ownership rights to the part of the garage he inherited from his father . According to the applicant , the remaining parts of the property were open for inheritance by his relatives , but none of them formalized their rights .","In DATE PERSON filed a lawsuit before ORG , claiming ownership rights to the garage based on a de facto sale and purchase agreement allegedly concluded in DATE with some of the applicant 's relatives , who had then been the owners of the garage .","The applicant counterclaimed , asking the court to order PERSON 's eviction from the garage . He denied PERSON 's allegations that the garage had been de facto sold in DATE , arguing that there were no proper documents verifying that such a sale had ever taken place . He claimed that the garage had remained in the ownership of his family until his father 's death and that , thereafter , he had rightfully inherited his father 's share of the property and properly formalized his ownership rights .","On DATE ORG upheld PERSON 's claim in full and rejected the applicant 's counterclaim .","The applicant appealed , alleging that the district court had wrongfully assessed the facts . On DATE ORG set aside the district court 's judgment and ruled in the applicant 's favour .","Following T.B. 's cassation appeal , on DATE ORG held that ORG improperly applied the relevant provisions of the domestic law to the facts of the case . ORG modified ORG decision and declared that the disputed property was in GPE 's ownership . ORG decision became final and enforceable upon its delivery .","On DATE the applicant filed an \u201c additional cassation \u201d appeal with the President of ORG , asking for the reopening of the proceedings and quashing ORG decision of DATE by the ORG of ORG ( ORG ) .","By a letter of DATE , the President of ORG rejected the applicant 's request , finding no grounds for the reopening of the proceedings .","Law On Courts and Judges of DATE","\u201c [ T]he ORG shall be the highest judicial authority with regard to civil ... , criminal , administrative and other disputes falling within the jurisdiction of the general and specialized courts .","ORG [ is ] a court of cassation instance ... \u201d","\u201c The Plenum of the Supreme Court shall be composed of the President , Vice Presidents and judges of ORG , the President of ORG , the President of ORG and the President of ORG of GPE . ...","The Plenum of ORG ... shall , in the manner established by law , review cases under the procedure of additional cassation , on submission of the President of ORG , or pursuant to a protest by ORG or an appeal by the defendant ... \u201d","\u201c The President of ORG ... shall , in cases and under the procedure provided by law , submit cassation instance decisions for the review of the Plenum of ORG ... \u201d","Code of Civil Procedure of GPE DATE","\u201c The decision [ of the cassation instance court ] shall enter into legal force from the moment of its delivery . \u201d","\u201c Submissions , appeals or protests concerning decisions of ORG ... may be reviewed by the ORG of ORG under the procedure of additional cassation . \u201d","\u201c A submission concerning a decision of ORG ... may be made by the President of ORG on the basis of an application by persons non - parties to the case whose interests were affected by the judicial acts . An appeal may be filed by a party to the case who has been represented by an advocate . [ A protest may be filed by ORG in certain specified circumstances . ] \u201d","\u201c The ORG shall consider cases exclusively on the points of law . \u201d","Article CARDINAL \u00a7 CARDINAL lists the grounds which merit the reconsideration of ORG cassation instance decision by the ORG of ORG . These grounds are present if , inter alia , ORG decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision , or was based on a legal norm declared as unconstitutional by ORG , or if ORG ruling infringed the rights and obligations of persons who were not a party to the case .","\u201c If appropriate grounds exist , the President [ of ORG ] shall transmit the submission , appeal or protest , together with the case file , to the ORG of ORG . \u201d","Relevant domestic practice","Any additional cassation proceedings in the ORG of ORG can be reopened only at the discretion of the President of ORG , following a motion by the relevant party ( e.g. , an additional cassation appeal or Chief Prosecutor 's protest ) . The ORG itself does not take a decision on the reopening of the proceedings or on the admissibility of additional cassation appeals .","An additional cassation appeal is first submitted to the President of ORG . The President , in his or her sole discretion and without holding any formal judicial hearing , decides if there are any grounds to reopen the case and transmit the appeal to the ORG . If the President decides that the proceedings should be reopened , he or she then transmits the additional cassation appeal , together with the case file , for the in - substance review of the ORG at its next sitting . Meanwhile , if necessary , the President may issue an order suspending the execution of the final judgment pending the review of the case by the ORG .","However , if the President deems that there are no grounds for additional cassation review , he or she simply sends a rejection letter to the applicant , briefly describing the reasons for the refusal to reopen the proceedings and transmit the appeal to the ORG . The recent practice shows that the President of ORG routinely denies additional cassation review in the majority of domestic cases , due to the absence of the relevant grounds ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67675","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2004,"docname":"AMEGNIGAN v. THE NETHERLANDS","importance":2,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the ORG by PERSON , a lawyer practising in PERSON .","On DATE , the applicant applied for asylum in the GPE under a false identity . This asylum request was rejected by decision of DATE . The applicant 's subsequent appeal was dismissed on DATE by ORG ( arrondissementsrechtbank ) of GPE .","On DATE , the applicant filed a second request for asylum in the GPE , this time under this true identity . He stated that he was single , that he had no relatives living in the GPE and that his father had died . His family in GPE consisted of his maternal grandfather , his mother and CARDINAL brother who was born in DATE . He had no other relatives . He claimed that he had been arrested in GPE on DATE after a passenger in his taxi had been found to carry weapon parts , that he had been taken into detention , had been ill - treated during his detention and had managed to escape with the aid of a guard . He further claimed that had left GPE by boat on DATE and that he had arrived in the GPE on DATE .","On an unspecified date , a medical examination of the applicant disclosed that he might be infected with HIV and he was referred to ORG in DATE for further medical examinations . In a letter of DATE , a specialist in internal diseases of this hospital confirmed this diagnosis and stated that the applicant found himself in the CARDINAL clinical category of the disease , i.e. the asymptomatic stage of the disease with a CDCARDINAL + count of MONEY The specialist concluded that , given the low CDCARDINAL + count , antiretroviral treatment was indicated . The applicant was in fact provided with such treatment .","On DATE , the Deputy Minister of Justice ( Staatsecretairs van Justitie ) rejected the applicant 's asylum request , finding that the applicant 's asylum account lacked credibility . In so far as the applicant relied on his health problems , the Deputy Minister considered that the applicant could apply for a residence permit on medical grounds . On DATE , the applicant filed an appeal with ORG of The Hague .","In a letter of DATE , a specialist in internal diseases of ORG informed the applicant 's lawyer that , if the applicant were to cease taking anti - HIV medication , his prospects would become very unfavourable within a short delay . The specialist further wrote that it was not to be expected that , in GPE , medication was obtainable that the applicant needed to suppress the HIV - infection and to improve his immune system .","On DATE , following a hearing held on DATE , ORG of The Hague rejected the applicant 's appeal of DATE . It accepted the finding of the Deputy Minister that no credence could be attached to the applicant 's asylum account . In so far as the applicant relied on his health problems , ORG decided not to take into account the information set out in the letter of DATE as this information had only been submitted DATE before the hearing held on DATE . It found that taking this information into consideration would be contrary to the principles of due process . It further held that it had not been established that there was a causal link between the applicant 's illness and his departure from GPE and that it had not appeared that there were such compelling reasons of a humanitarian nature being connected to the applicant 's reasons for leaving GPE that it should be held that , in all reasonability , it could not be expected from the applicant to return to his country of origin . No further appeal lay against this decision .","On DATE , the applicant filed a third request for asylum on the basis of newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) . When , on DATE , he was interviewed by the immigration authorities on this request , the applicant stated inter alia that he was cohabiting with another asylum seeker from GPE since DATE and that CARDINAL children had been born out of this relationship in DATE and DATE , respectively . He further stated that his family in GPE consisted of his mother and a younger brother .","This third request was rejected on DATE by the Minister for ORG ( Minister PERSON ) , who had succeeded the Deputy Minister of ORG under LAW ( Vreemdelingenwet ) which , on DATE , had replaced LAW DATE . As to the applicant 's argument that , given his ORG , his expulsion to GPE would be in violation of his rights under LAW ; the Minister recalled that , according to the constant case - law , such a situation would only arise if the alien concerned found himself in an advanced and directly life - threatening stage of an incurable disease . The Minister found that there were insufficient indications in the applicant 's submissions for holding that there was such a situation in his case and , on this basis , concluded that \u2013 irrespective of the possibilities of treatment in GPE and the presence a social support network there DATE the applicant 's case did not raise an issue under LAW . Moreover , as already indicated in the decision of DATE , the applicant could apply for a temporary residence permit on medical grounds . The Minister further found no indication in the applicant 's case for concluding that , owing to traumatic experiences linked to the reasons for leaving the country of origin , it could not in all reasonability be expected from the applicant to return to GPE thus rendering him eligible for a residence permit on grounds of compelling reasons of a humanitarian nature . On this point , the Minister considered that the health problems relied on by the applicant were not linked to his reasons for leaving GPE . The applicant was ordered to leave the GPE within TIME .","On DATE , the Minister informed ORG for ORG opvang ORG ; \u201c ORG \u201d ) , since the applicant 's asylum request had been rejected on DATE , the applicant 's entitlement to ORG - sponsored reception and care facilities for asylum seekers ( \u201c opvang \u201d ) had ceased . However , the Minister was of the opinion that the applicant 's expulsion should be stayed under LAW as , according to medical advice obtained , the applicant was unfit to travel . The Minister therefore advised the ORG to prolong the provision of reception and care facilities to the applicant until DATE . On DATE , the Minister informed the applicant that the ORG had been advised to prolong until DATE the provision of facilities . The Minister further indicated that an advice of ORG Medische Advisering ) would be sought on a possible prolongation of this period .","On DATE , the applicant 's treating specialist doctor of ORG informed the applicant 's lawyer that , DATE after having started treatment in DATE , the applicant 's condition was stable but that his immune system had apparently been so weakened when he had started treatment that it had still not been properly restored . The doctor further stated that by the suppression of the AIDS virus there was no direct danger , but that as soon as the anti - HIV therapy would be stopped , the applicant would fall back to the advanced stage of the disease which , given its incurable nature , would entail a direct threat for life .","The applicant 's appeal against this Minister 's decision of DATE was dismissed by ORG of GPE on DATE .","By letter of DATE , the Minister for ORG informed the applicant 's lawyer that , before a decision could be taken on the question whether the applicant 's expulsion should be stayed further on medical grounds , it was necessary to obtain medical information from the doctors treating the applicant for which the latter 's written consent was required . The applicant 's lawyer was requested to return the appended consent form within DATE .","On DATE , the Minister informed the applicant that , pending the issuance of an advisory opinion of ORG about his situation and on the basis of LAW , his expulsion would be stayed until DATE .","The applicant 's appeal to ORG ( Afdeling Bestuursrechtspraak ) of ORG against the ruling given on DATE by ORG of The Hague was rejected on DATE . Although ORG accepted that the letter of DATE of ORG constituted a relevant new fact , it found that this could not lead to quashing the impugned decision taken by the Minister on DATE . It considered that it could not be concluded from the contents of this letter that the applicant 's illness had attained such an advanced and direct lifethreatening stage that it should be held that the expulsion of the applicant to GPE or any other country would be in violation of LAW . It further took into consideration that \u2013 according to an additional medical statement of CARDINAL DATE that had been submitted to ORG \u2013 the HIV - virus would be suppressed as long the applicant would continue taking medication , so that there was no direct threat for life . It therefore accepted that there were no grounds on the basis of which the Minister should reconsider the decision of DATE .","Under LAW of LAW DATE ( PERSON , hereinafter \u201c the Act \u201d ) , which was in force until DATE , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political convictions , or of belonging to a particular race or a particular social group , could be admitted as refugees . The expression \u201c refugee \u201d in this provision was construed to have the same meaning as in LAW ( decision of ORG ( Afdeling Rechtspraak ) of ORG of DATE , PERSON [ ORG ] DATE , no . CARDINAL ) .","On DATE , LAW entered into force . On the basis of LAW , an alien may be eligible for a residence permit for the purposes of asylum if , inter alia ,","\u2013 he or she is a refugee within the meaning of LAW , or","\u2013 he or she has established well - founded reasons to assume that he \/ she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .","Article CARDINAL of LAW ( PERSON ) provides that an applicant must adduce newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) if a new request is filed following a decision in which the original request is , either totally or partially , rejected . When no such facts or altered circumstances have been adduced , the administrative authority may reject the new request with reference to the decision on the original request . Article CARDINAL thus embodies the res iudicata principle for the administrative law . Nevertheless , an exception has been made in this particular area of the law , in that an alien may adduce exceptional facts and circumstances relating to him or her personally , on the basis of which the new request may be assessed outside the framework of Article CARDINAL . In the case of a repeat asylum application which also invokes the risk of treatment contrary to LAW , an assessment by the court outside the framework of Article CARDINAL is therefore possible .","ORG has on CARDINAL occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances ( judgment of DATE , no . CARDINAL\/CARDINAL , PERSON Asiel- en ORG [ Newsletter on ORG and Refugeelaw ] CARDINAL ) . It did so on the basis of the exceptional circumstance that there was no dispute between the parties , that on his return to his country of origin , the alien would run a real risk of being subjected to treatment or punishment proscribed by LAW .","During the initial asylum procedure , an alien is in principle entitled to reception and other facilities including health care , provided by the ORG . Pursuant to LAW , an alien whose stay in the GPE is not lawful is not entitled to such facilities . This provision applies to asylum seekers whose applications have been unsuccessful . Also , a second or further application for asylum does not confer a new entitlement to facilities . An exception to that basic principle can nevertheless be made if , inter alia , the asylum seeker finds him or herself in extremely compelling humanitarian circumstances ( FAC schrijnende humanitaire omstandigheden , LAW of FAC ) .","The ORG decides whether or not facilities will be provided . Appeal lies against a decision to refuse facilities , but also against a failure to decide ( or to decide within a reasonable time ) on a request for facilities . The lodging of an appeal does not suspend the denial of facilities , but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings .","According to LAW , the Minister can order the expulsion of an alien illegally staying in the GPE and who has not voluntarily left the GPE within the time - limit fixed for this purpose . However , pursuant to LAW , no expulsion will take place when , in view of the health condition of the alien , travelling is contra - indicated .","In a report dated DATE of ORG f\u00fcr die ORG ) on HIV and AIDS in GPE , it is stated that DATE according to information set out in the UNAIDS \/ WHO Epidemiological Fact Sheet DATE on GPE \u2013 it was assumed that PERCENT of the adult population in GPE was HIV - positive whereas PERCENT of the total population in GPE is insured against sickness . As regards the local possibilities of treatment , the report states that DATE although treatment is possible in various hospitals in the capital of GPE as well as in all regional hospitals \u2013 many patients can not afford treatment .","According to a report issued on DATE by ORG federal des r\u00e9fugi\u00e9s ) , treatment is available in GPE , both in various hospitals in its capital PERSON and in CARDINAL regional hospitals . It further states that , PERCENT of the total population in GPE has a health insurance , the costs of treatment are generally borne privately and that , as the average DATE income in GPE lies CARDINAL , a person infected with HIV or suffering from AIDS who does not have health insurance will hardly be able to afford treatment if relatives are unable to provide financial support , despite the fact that negotiations between the NORP authorities and the pharmaceutical industry have resulted in a considerable reduction of the prices of certain medications for the treatment of HIV \/ AIDS ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90348","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF KAZAKOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 10","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in the town of PERSON in LOC .","NORP In DATE the applicant , a former military officer , sent a letter to the commander of military unit no . CARDINAL , who supervised the command of unit no . DATE . The letter read as follows :","\u201c On DATE the command of military unit no . DATE held a meeting of war veterans ... who live in the military compound . The meeting adopted an open letter to ORG of GPE with a request to return the town baths to the compound residents and to stop discrimination against the residents on account of their social or official status ...","Commanders of the military unit conduct themselves as \u2018 usurpers , invaders and occupants\u2019 . In a short period of time the new commander of military unit no . DATE , Colonel GPE , destroyed the town dance hall and the warehouse for vegetables , locked up the leisure centre of the unit , performed an unauthorised dismantling of the bus park and threw everyone out of the bathhouse which he converted into a \u2018 ORG for a narrow circle of chosen ones . \u201d","Mr Shatov lodged a defamation action against the applicant , claiming that the letter of DATE had impaired his honour and dignity . He sought compensation in respect of non - pecuniary damage and a written apology , enclosing its proposed text .","By judgment of DATE , ORG of GPE found for the plaintiff . It established that the dance hall and the warehouse had been indeed dismantled , but the materials had been used for the needs of the military unit , that the leisure centre was open , and that the soldiers and officers and their family members could still use the baths . The court noted that the document the applicant produced to prove the dismantling of the bus park could not be used in evidence as it bore no stamp .","ORG found that the information stated in the letter of DATE had been untrue and damaging to PERSON honour and dignity , and ordered as follows :","\u201c Pursuant to ORG CARDINAL \u00a7 CARDINAL and CARDINAL of LAW , the court orders [ the applicant ] to pay Mr Shatov MONEY in respect of non - pecuniary damage because the allegations about Mr Shatov \u2019s \u2018 discrimination against citizens , [ his acting as an ] usurper , invader , occupant , destruction of the dance hall and the warehouse , unauthorised dismantling of the bus park and throwing everyone out of the bathhouse which he converted into a \u2018 ORG for a narrow ORG have impaired PERSON honour and dignity ...","... to order that [ the applicant ] make a written apology to PERSON within DATE , worded as follows : \u201c In DATE I , [ the applicant ] , sent to the commander of military unit no . CARDINAL a letter containing information on your professional activities , which was untrue and damaging to your honour and dignity . This fact was established by ORG on DATE . I apologise to you for having disseminated such information , for undermining your authority in the eyes of your subordinates and superiors , compound residents and the PERSON town residents , and for causing you personal suffering \u201d ;","... and to make an apology to the commander of military unit no . CARDINAL of GPE worded as follows \u201c In DATE I , [ the applicant ] , sent you a letter containing information on the professional activities of the commander of military unit no . DATE , PERSON , which was untrue and impaired PERSON honour and dignity . This fact was established by ORG on DATE . I apologise for misleading the command of military unit no . CARDINAL by giving untrue information . \u201d","The applicant appealed against the judgment of DATE . He claimed that the letter of DATE contained his own value judgments , which were not amenable to proof . On DATE ORG upheld the judgment , endorsing the reasons of the first - instance court .","Article CARDINAL of LAW guarantees the freedom of expression . Article CARDINAL provides that NORP citizens shall have the right to petition in person , as well as to submit individual and collective appeals to , ORG authorities and local self - government bodies .","Article CARDINAL of LAW is a general provision containing a list of the forms of redress which can be obtained in respect of civil rights . It includes recognition of a right , restitutio in integrum , compensation in respect of pecuniary or non - pecuniary damage and other forms of redress prescribed by law . LAW reads in its relevant parts as follows :","\u201c CARDINAL . A citizen shall have the right to claim through the court that the information discrediting his honour , dignity or business reputation be refuted , unless the person who has disseminated such information proves its truthfulness ...","NORP If the information discrediting the honour , dignity or business reputation of the citizen has been disseminated by the mass media , it shall be refuted by the same media ...","NORP The citizen with respect to whom the media have published the information infringing upon his rights or protected interests shall have the right to publish his reply in the same media ...","The citizen with respect to whom the information discrediting his honour , dignity or business reputation has been disseminated shall also have the right , in addition to the refutation of the given information , to claim compensation in respect of pecuniary and non - pecuniary damage caused by the dissemination .","If the person who has disseminated the information ... can not be identified , the citizen shall have the right to turn to the court with a demand that it recognise the disseminated information as untruthful ... \u201d","Resolution no . CARDINAL of ORG of DATE ( as amended on DATE , in force at the material time ) established that the notion \u201c dissemination of information \u201d employed in LAW was understood as the publication of statements or their broadcasting , inclusion in professional references , public speeches , applications to ORG officials and communication in other forms , including oral , to CARDINAL another person . It specified , however , that \u201c communication of such information to the person whom it concerned could not be treated as dissemination \u201d .","In their ORG of DATE , ORG recalled that under LAW of LAW no one can be compelled to express his opinions or beliefs or compelled to refrain from expressing them . It thus instructed the courts below that an apology , whatever its form , was not prescribed under NORP law , including LAW , as redress ( point CARDINAL ) . The above does not exclude the possibility for a judge to approve a friendly - settlement agreement the terms of which require such an apology . ORG also instructed the other courts that when a citizen lodges a complaint with a public authority alleging , for instance , that a criminal offence has been committed and when such an allegation proves to be unfounded , the latter fact can not serve as a basis for an action under LAW . ORG explained that civil liability could not arise in such a situation in view of the applicant \u2019s exercise of his right of petition to a public authority , which was to carry out an inquiry , and that such a situation did not equate to dissemination of false defamatory information ( point CARDINAL ) . A defamation action may only succeed if a court has established that the petition to the public authority lacked any foundation and was intended to cause damage to another person , thus amounting to an abuse of the right ( ibid ) .","Until DATE the general administrative complaints procedure was prescribed by Decree no . CARDINAL issued by the Presidium of ORG on DATE , as subsequently amended in DATE and DATE , in so far as it was compatible with LAW and the DATE LAW . A number of public authorities had individual regulations on the matter .","According to the DATE decree , a written petition or complaint should be signed by the complainant and should indicate his or her full name and place of residence ( point CARDINAL ) . A petition or complaint should be submitted to the official or authority who is the immediate superior of the official or authority against whom the complaint is directed ( point CARDINAL ) . The filing of defamatory petitions or complaints should be punishable by the law ( point CARDINAL ) .","LAW of CARDINAL DATE ( Federal Law no . CARDINAL-\u0424\u0417 ) sets up a new framework for administrative complaints and petitions . According to its section CARDINAL \u00a7 CARDINAL , a petition containing obscene or insulting phrases , threats to life or limb of an official or his or her family members , may be left without examination on the merits ; in such cases the complainant should be warned against the abuse of the right ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109049","languageisocode":"ENG","respondent":"MDA","branch":"ADMISSIBILITY","date":2012,"docname":"CASE OF BALAN v. MOLDOVA","importance":3,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Mihai Poalelungi;Nona Tsotsoria","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in P\u0103n\u0103\u015fe\u015fti . He was represented before the ORG by PERSON PERSON , a lawyer practising in PERSON . The Government were represented by their Agent , Mr PERSON .","NORP The facts of the case may be summarised as follows .","On DATE the applicant was accidentally injured by an individual , NORP , sustaining an injury to his left thigh bone . On an unspecified date the applicant instituted civil tort proceedings against NORP , seeking a court order obliging NORP to pay him compensation for pecuniary damage .","On DATE the ORG ordered NORP to pay the applicant CARDINAL Moldovan lei ( MDL ) ( the equivalent of MONEY ( ORG ) in compensation for pecuniary damage and LAW ( LAW ) for legal fees . This decision was final and an enforcement warrant was issued . It has not been enforced to date .","On DATE the ORG delivered the ORG and others pilot judgment ( see ORG and Others v. GPE , nos . CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL , DATE ) in which it found , inter alia , that the problem of non - enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a \u201c systemic problem \u201d . The ORG ordered , inter alia , that the respondent ORG set up an effective domestic remedy which secures adequate and sufficient redress for non - enforcement or delayed enforcement of final domestic judgments ( see ORG and others , cited above , LAW and point CARDINAL of the operative part ) .","On DATE ORG informed the ORG that on DATE a new law ( PERSON no . CARDINAL ) entered into force , instituting a remedy against the problem of non - enforcement of final domestic judgments and against the problem of unreasonable length of proceedings .","On DATE ORG informed the applicant and all other applicants in the same position of the new remedy , asking whether they intended to make use of it within the DATE time - limit set by LAW . DATE ( see paragraph CARDINAL below ) . The applicants\u2019 attention was drawn to the fact that according to LAW , the ORG may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible .","By a letter of CARDINAL DATE the applicant informed the ORG in response that he was not intending to use the new remedy because it was not effective . In particular , the applicant argued that even the denomination of PERSON no . CARDINAL suggested that it offered a remedy only when a final judgment had not been enforced in a timely manner but not when the judgment had not been enforced at all . In the applicant \u2019s view , the law did not provide for a mechanism to trigger a rapid enforcement of an unenforced final judgment . Moreover , the applicant submitted that it would be an excessive burden for him to be requested to go back to the domestic courts and attempt to exhaust the new remedy .","According to PERSON no . CARDINAL anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation . According to section CARDINAL of the law , it should be interpreted and applied in accordance with the national law , the Convention and the ORG \u2019s case - law . According to section CARDINAL of the law the courts are obliged to deal with applications lodged under the law within DATE . LAW law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court , compensation for pecuniary damage , non - pecuniary damage and costs and expenses have to be awarded to the applicant . LAW the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants . Under LAW law all individuals who have complained to ORG that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within DATE of the entry into force of the new law , provided that ORG has not ruled on the admissibility and merits of the complaint .","At the same time LAW was modified in such a manner as to reduce the number of instances of appeal from CARDINAL to one and to waive court fees for such proceedings ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81359","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2007,"docname":"CASE OF O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM","importance":1,"conclusion":"No violation of Art. 6-1;No separate issue under Art. 6-2","judges":"Alvina Gyulumyan;Christos Rozakis;Egbert Myjer;J\u00e1n \u0160ikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luzius Wildhaber;Matti Pellonp\u00e4\u00e4;Nicolas Bratza;Snejana Botoucharova;Stanislav Pavlovschi;Volodymyr Butkevych","text":["The applicants were born in DATE and DATE and live in GPE and PERSON respectively .","On DATE , at TIME , a vehicle of which the applicant was the registered keeper , registration number TCARDINAL TBX , was caught on a speed camera driving at QUANTITY ( mph ) on FAC where the temporary speed limit was QUANTITY .","On DATE , the police camera enforcement unit of ORG wrote to the applicant :","\u201c I have photographic evidence that the driver of TCARDINAL TBX failed to comply with the speed limit ... It is intended to institute proceedings against the driver for the offence of failing to comply with the speed limit ... You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page CARDINAL . I must warn you that if you fail to comply with this demand within DATE you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself \u2013 a fine of \u00a3 MONEY and CARDINAL penalty points . \u201d","The attached Notice of Intended Prosecution informed the applicant that it was intended to institute proceedings against the driver of the vehicle . He was asked to furnish the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver \u2019s identification . He was again informed that a failure to provide information was a criminal offence under section CARDINAL of LAW DATE .","NORP The applicant answered the letter confirming that he was the driver at the relevant time .","On DATE the applicant was summoned to attend ORG where he was tried for driving in excess of the speed limit . Prior to the trial , the applicant sought to exclude the confession made in response to LAW , relying on sections CARDINAL and CARDINAL of ORG read in conjunction with LAW . His application was refused in the light of the decision of ORG in PERSON v. PERSON [ DATE ] CARDINAL WLR CARDINAL . Thereafter the prosecution relied upon the photograph of the speeding vehicle and the admission obtained as a result of the section CARDINAL demand . The applicant was convicted and fined MONEY ( GBP ) , ordered to pay GBP CARDINAL costs and his licence was endorsed with CARDINAL penalty points .","On DATE the applicant asked the magistrates to state a case for the opinion of the High Court :","\u201c Whether in the circumstances of this case , the admission that the defendant was indeed the driver should have been excluded under sections DATE and CARDINAL of ORG having regard to LAW and the recent cases decided by ORG as he had been obliged to incriminate himself ? \u201d","On DATE the GPE clerk informed the applicant that the magistrates refused to state a case as the issue had already been decided definitively by ORG in PERSON v. PERSON ( cited above ) and by ORG in Director of Public Prosecutions v. PERSON ( [ DATE ] EWHC Admin CARDINAL ) .","On DATE the applicant \u2019s application for judicial review of the GPE decision was refused .","A car of which the applicant was the registered keeper was caught on speed camera on DATE driving at QUANTITY where the speed limit was QUANTITY .","On DATE the Surrey Police sent the applicant a Notice of Intended Prosecution in the following terms :","\u201c In accordance with LAW DATE , I hereby give you notice that proceedings are being considered against the driver of PERSON motor vehicle registration mark EYX CARDINAL ...","This allegation is supported by means of photographic \/ recorded video evidence . You are recorded as the owner \/ keeper \/ driver or user for the above vehicle at the time of the alleged offence , and you are required to provide the full name and address of the driver at the time and location specified . Under section CARDINAL of FAC you are required to provide the information specified within DATE of receipt of this notice . Failure to supply this information may render you liable to prosecution . The penalty on conviction for failure to supply the information is similar to that for the offence itself , i.e. a fine and penalty points . \u201d","On DATE the applicant wrote to ORG invoking his right to remain silent and privilege against self - incrimination .","On DATE the Surrey Police informed the applicant that the appeal in PERSON v. PERSON , cited above , held that section CARDINAL did not infringe the said rights .","NORP The applicant refused to supply the information .","On DATE the applicant was summoned to ORG for failing to comply with section CARDINAL(CARDINAL ) of the Road Traffic Act DATE . He obtained an adjournment .","On DATE ORG agreed to a further postponement , apparently with reference to the applicant \u2019s proceeding with an application in GPE . The applicant wrote to ORG on DATE , relying on LAW and CARDINAL of the Convention .","On DATE ORG cancelled the postponement and fixed the trial for DATE , on which date the applicant was convicted and fined GBP CARDINAL with GBP CARDINAL costs and CARDINAL penalty points . He states that the fine was substantially heavier than that which would have been imposed if he had pleaded guilty to the speeding offence .","Section CARDINAL of LAW DATE ( \u201c the DATE LAW ) deals with the duty to give information of a driver of a vehicle in certain circumstances . Subsection ( CARDINAL ) refers to the traffic offences to which the section applies . They include parking on a cycle track ( under LAW of LAW ) and causing death by reckless driving ( section CARDINAL ) , offences under a number of other provisions , including speeding , and manslaughter by the driver of a motor vehicle .","Subsection CARDINAL provides :","\u201c Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies \u2013","( a ) NORP the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police , and","( b ) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver . \u201d","Subsection CARDINAL provides :","\u201c Subject to the following provisions , a person who fails to comply with a requirement under subsection ( CARDINAL ) above shall be guilty of an offence . \u201d","Subsection CARDINAL provides :","\u201c A person shall not be guilty of an offence by virtue of paragraph ( a ) of subsection ( CARDINAL ) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was . \u201d","A person guilty of an offence under subsection CARDINAL can be disqualified or have his licence endorsed with CARDINAL penalty points ; he may also be fined up to level CARDINAL on the standard scale , that is , GBP CARDINAL .","Section CARDINAL(CARDINAL ) of the Road Traffic Offenders Act DATE provides that on summary trial for a relevant offence , including speeding offences , a statement in writing signed by the accused under section CARDINAL(CARDINAL ) of LAW that he was the driver of the vehicle on that occasion may be accepted as evidence of that fact .","Section CARDINAL provides","\u201c ( CARDINAL ) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section ;","( CARDINAL ) NORP If , in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person , it is represented to the court that the confession was or may have been obtained \u2013","( a ) by oppression of the person who made it ; or","( b ) in consequence of anything said or done which was likely , in the circumstances existing at the time , to render unreliable any confession which might be made by him in consequence thereof ,","the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession ( notwithstanding that it may be true ) was not obtained as aforesaid .","... \u201d","Section CARDINAL(CARDINAL ) provides :","\u201c In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . \u201d","In PERSON v. PERSON , cited above , ORG considered the case of a woman arrested for shoplifting in the vicinity of a car that appeared to be hers . She was breathalysed and tested positive for alcohol consumption . With a view to ascertaining whether she had been guilty of driving her car while under the influence of alcohol ( contrary to section CARDINAL of the CARDINAL Act ) , the police served her with a section QUANTITY notice . The Procurator Fiscal sought to use her answer that she had been driving as the basis for a prosecution for driving with excess alcohol . ORG of Justiciary allowed the defendant \u2019s appeal , finding that the prosecution could not rely on evidence of the admission which she had been compelled to make .","On appeal by ORG , ORG found that the use of the admission did not infringe the requirements of LAW . Lord PERSON of GPE , giving the leading judgment , held , inter alia :","\u201c The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies . The need to address it in an effective way , for the benefit of the public , can not be doubted . Among other ways in which democratic societies have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying , prosecuting and punishing offending drivers . Materials ... incomplete though they are , reveal different responses to the problem of enforcement . Under some legal systems ( GPE , GPE and GPE are examples ) the registered owner is presumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration . There being a clear public interest in enforcement of road traffic legislation the crucial question in this case is whether section CARDINAL represents a disproportionate response , or CARDINAL that undermines a defendant \u2019s right to a fair trial , if an admission of being the driver is relied on at trial .","I do not for my part consider that section CARDINAL , properly applied , does represent a disproportionate response to this serious social problem , nor do I think that reliance on the respondent \u2019s admission in the present case , would undermine her right to a fair trial . I reach that conclusion for a number of reasons .","Section CARDINAL provides for the putting of a single , simple question . The answer can not of itself incriminate the suspect , since it is not without more an offence to drive a car . An admission of driving may , of course , as here , provide proof of a fact necessary to convict , but the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences such as understandably was held to be objectionable in PERSON , and the penalty for declining to answer under the section is moderate and non - custodial . There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice , and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission .","While ORG was entitled to distinguish ... between the giving of an answer under section CARDINAL and the provision of physical samples , and had the authority of ORG in PERSON ... for doing so , this distinction should not in my opinion be pushed too far . It is true that the respondent \u2019s answer whether given orally or in writing would create new evidence which did not exist until she spoke or wrote . In contrast , it may be acknowledged , the percentage of alcohol in her blood was a fact , existing before she blew into the breathalyser machine . But the whole purpose of requiring her to blow into the machine ( on pain of a criminal penalty if she refused ) was to obtain evidence not available until she did so and the reading so obtained could , in all save exceptional circumstances , be enough to convict a driver of an offence ... [ I]t is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not . Yet no criticism is made of the requirement that the respondent undergo a breath test .","All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime . This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the ORG but because the possession and use of cars ( like , for example , shotguns ... ) are recognised to have the potential to cause grave injury . It is true that section CARDINAL(CARDINAL)(b ) permits a question to be asked of \u2018 any other person\u2019 who , if not the owner or driver , might not be said to have impliedly accepted the regulatory regime , but someone who was not the owner or driver would not incriminate himself whatever answer he gave . If , viewing this situation in the round , one asks whether section CARDINAL represents a disproportionate legislative response to the problem of maintaining road safety , whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual , whether ( in short ) the leading of this evidence would infringe a basic human right of the respondent , I would feel bound to give negative answers . If the present argument is a good one it has been available to NORP citizens since DATE , but no one in this country has to my knowledge , criticised the legislation as unfair at any time up to now . \u201d","The decision was adopted by the English High Court in Director of Public Prosecutions v. PERSON , cited above ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79160","languageisocode":"ENG","respondent":"LVA","branch":"CHAMBER","date":2007,"docname":"CASE OF ESTRIKH v. LATVIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - financial award","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant was born in DATE and lives in GPE in GPE .","The applicant arrived in GPE as a member of the ex - GPE armed forces located in the territory of GPE . On an unspecified date in DATE he and PERSON , a NORP citizen , started living together in de facto partnership . In DATE a child was born to the applicant and his partner .","After the military forces were withdrawn from GPE , the applicant resided there DATE and DATE on the basis of a temporary residence permit . On DATE , upon the expiry of the residence permit , he left GPE .","DATE the applicant visited GPE CARDINAL times on the basis of a visa . The validity of the last visa expired on DATE but the applicant continued to reside in GPE illegally .","On DATE the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery and criminal proceedings were initiated against him and CARDINAL co - accused persons .","On DATE the applicant was brought before a judge of ORG of GPE who decided to detain him on remand . The judge filled in a standard form by typing in DATE , the names of the court and the applicant and other details of the case . In substantiating the decision , the judge had to choose from and underline the pre - typed text of the standard form . She took into account the severity of the crime the applicant was suspected of , the danger of his possible absconding and the possibility that he could impede the investigation . However , the judge did not underline the pre - typed text as to whether or not a preventive measure should be imposed on the applicant . He did not appeal this decision .","On DATE the applicant was officially charged with robbery .","NORP On DATE , DATE , DATE and CARDINAL DATE a judge of ORG of GPE , on the request of the prosecutor in charge of investigation , extended the applicant 's detention on remand until DATE , CARDINAL DATE , DATE and DATE respectively . The applicant was not brought before the judge . The decisions were drafted using a standard form and repeated from CARDINAL decision to the next the same grounds in the same words , i.e. the severity of the crime the applicant was charged with , the danger of his possible absconding and the possibility that he could impede the investigation . The applicant did not appeal any of these decisions .","On DATE the prosecutor in charge of investigation and the applicant discussed the possibility of releasing him on bail .","On DATE , according to the prosecutor 's permission , the applicant and his partner met in order to discuss the details of the applicant 's release on bail without reaching any agreement in this respect .","On DATE , DATE , DATE , DATE and DATE a judge of LOC , on the request of the prosecutor in charge of investigation , extended the applicant 's detention on remand until DATE , DATE , DATE , DATE and DATE respectively . The applicant was not brought before the judge . The decisions were drafted using a standard form and repeated , from CARDINAL decision , the same grounds and in the same words , i.e. the severity of the crime the applicant was charged with , the danger of his possible absconding and the possibility that he could impede the investigation . The applicant did not appeal any of these decisions .","On DATE the applicant was given access to the case file in order to take cognisance of its contents , which he completed on DATE .","On DATE the last of the co - accused persons completed the reading of the case file .","On DATE the investigating prosecutor PERSON informed all accused persons that the examination of the case file had been completed . The prosecutor , considering the fact that the applicant resided in GPE illegally , the danger of his possible absconding and the possibility that he could impede the investigation , refused the applicant 's request to alter the preventive measure imposed on him . The applicant did not appeal this decision . On DATE the final indictment , drafted by the prosecutor PERSON , was presented to the applicant .","On an unspecified date the case was transmitted to ORG for adjudication .","During the preliminary investigation the applicant asked the prosecutor in charge of investigation for permission to correspond with his relatives ; these requests , using a standard form , were refused as being contrary to the interests of investigation .","On DATE the applicant asked the prosecutor for permission to meet his partner . His request was refused on DATE .","On DATE the applicant asked the prosecutor for permission to exchange correspondence with his parents , who were living in GPE .","On DATE the prosecutor informed the applicant that he was not allowed to meet his partner or to exchange correspondence with his parents .","On DATE the applicant asked the prosecutor for permission to exchange correspondence with his relatives and to meet his partner and their child . These requests were refused on DATE .","On DATE the applicant asked the prosecutor for permission to exchange correspondence with his mother and his partner .","On DATE the prosecutor allowed the applicant to exchange correspondence with his mother .","On DATE a judge of ORG allowed the applicant to exchange correspondence with his partner .","The applicant spent the whole period of detention from DATE to DATE in a remand prison . According to the Instruction on the Procedure of Keeping Suspected , Accused , ORG ( hereinafter referred to as \u201c the ORG \u201d ) , approved by the Minister of the ORG , and Transitional Provisions on the Procedure of Keeping Suspected , Accused , ORG ( hereinafter referred to as \u201c the Transitional Provisions \u201d ) , approved by the Minister of ORG , long - term family visits were prohibited in remand prisons .","On DATE ORG received the case file .","On DATE a judge of ORG committed the applicant for trial and scheduled the hearing for CARDINAL DATE . The applicant was not summoned . The judge decided to continue his detention on remand without giving reasons . The decision was not subject to appeal .","On DATE the applicant asked ORG to schedule a separate court hearing in order to determine the date of trial and to reconsider the preventive measure imposed on him .","On DATE a judge of ORG replied that the trial date had not been set .","On unspecified dates the applicant complained to the President of ORG and ORG that his right to trial within a reasonable time had been infringed . On DATE ORG notified the applicant that the trial date had not been scheduled .","On DATE the applicant asked ORG to hold a hearing in his case within a reasonable time . On DATE the applicant repeated this request .","On DATE a judge of ORG replied that the trial date had not been set .","On DATE the applicant announced a hunger strike to protest against the lack of progress in the proceedings .","On DATE ORG informed him that the hearing had been scheduled for DATE and he discontinued the hunger strike .","On DATE ORG informed the applicant that the trial had been scheduled for CARDINAL DATE .","On DATE , in reply to the applicant 's earlier complaint , ORG informed him that the hearing had been set for CARDINAL DATE .","On DATE ORG confirmed that the trial date had been scheduled for CARDINAL DATE .","On DATE ORG confirmed that the trial dates were set for CARDINAL DATE and not DATE as erroneously stated by ORG in its letter of DATE . The applicant was also informed that , due to the court 's case load , it was not possible to begin the trial within the time limit provided for in LAW .","On DATE , on the applicant 's request of DATE to alter his detention on remand , a judge of ORG informed him that he had been committed for trial and that there was no reason to alter the preventive measure imposed on him .","On DATE the Riga Regional court commenced adjudication of the applicant 's case .","On CARDINAL and DATE the ORG court adjourned the hearing as several witnesses did not appear . The court ordered the police to ensure the appearance of these witnesses under constraint .","On DATE ORG found the applicant guilty of robbery and unlawful ammunition storage . The prosecuting authorities were represented by the prosecutor PERSON and his colleague . The court sentenced him to DATE and DATE imprisonment and , according to LAW , ordered his deportation from GPE after having served the sentence . The applicant appealed this judgment .","On DATE ORG acquitted the applicant of the charge of unlawful ammunition storage and quashed the first instance court 's sentence in regard to his deportation , upholding the remainder of the first instance court 's judgment . The prosecutor PERSON represented the prosecuting authorities together with his colleague . The applicant did not file an appeal on points of law and thus the judgment became final .","On DATE the Citizenship and Migration Authority ( hereinafter referred to as the \u201c CMA \u201d ) took a decision on forced expulsion of the applicant , stating that the applicant , a NORP national , arrived in GPE on DATE on the basis of a visa . It observed that ORG convicted the applicant on DATE and ordered his expulsion from GPE , according to LAW . The ORG noted that the applicant would be released on DATE and decided , in accordance with LAW of LAW , to expel him from the territory of GPE to GPE . There was no date indicated in the decision as to when the expulsion should take place . When the applicant took cognisance of this decision , he wrote next to his signature that he objected to his expulsion as he had a family in GPE .","On DATE the applicant was released from prison , the time he had spent in detention on remand counting as part of the sentence . On the same date he was transferred to ORG and thereafter detained at the PERSON pending his deportation to GPE .","DATE . On DATE the applicant appealed against the decision of the ORG to ORG of GPE . The court received the appeal on DATE .","On DATE the applicant was deported to GPE .","On DATE a judge of ORG of GPE examined the applicant 's appeal of CARDINAL DATE and , as it was written in NORP , allowed the applicant until DATE to rectify this procedural deficiency .","On DATE the proceedings were terminated as neither the applicant nor his lawyer pursued the complaint .","On DATE the applicant and his partner married in GPE in GPE .","The relevant part of LAW provides that the maximum term of detention on remand during the investigation of a criminal case may not exceed DATE . If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure , a judge may extend the period of detention for DATE . If necessary , the detained person and his defence counsel may be heard . Extension of detention beyond DATE and DATE is not allowed and the detained person is entitled to immediate release .","Paragraph CARDINAL of LAW ( adopted on DATE and with entry into force on DATE ) provides that in exceptional cases the ORG of ORG may extend detention beyond DATE and DATE .","Paragraph CARDINAL of Article CARDINAL provides that the time taken for all defendants to take cognisance of the documents in the investigation file shall not be taken into account in calculating the length of detention pending trial .","By virtue of LAW , a preventive measure shall be terminated if it has been applied unlawfully or it ceases to be necessary , or may be changed to ateration of detention on remand applied by a judge or a court during the preliminary investigation shall be effected by a reasoned decision of a prosecutor , or it may be terminated by a court decision in the cases provided for in LAW .","According to Article CARDINAL , a complaint regarding acts of a prosecutor shall be subject to appeal to a higher prosecutor . The complaint shall be examined within DATE upon its receipt and it can be dismissed only by a reasoned decision .","Pursuant to Article CARDINAL , all decisions given by a judge at the pre - trial stage regarding the detention on remand and its extension can be appealed to a higher court by a suspected or accused person or his \/ her counsel or representative . The appellant and the prosecutor in charge of investigation shall be present at the adjudication of the appeal . The appeal shall be examined and a decision taken within DATE as of its receipt . The decision is final and not subject to further appeal .","After a judge has committed an accused person to trial , a court shall decide in a preliminary hearing on the question of preventive measures . A decision concerning committal of an accused person to trial shall be taken within DATE upon receipt of a case file in the court ( LAW ) .","In deciding whether to commit an accused person for trial , a judge or a court shall determine whether the preventive measure applied was appropriate ( Article CARDINAL ) .","When committing an accused person to trial , a judge holds a preliminary hearing to rule on the request to alter a preventive measure if the judge considers that the request is well - grounded . The decision refusing the request to alter a preventative measure can not be appealed . ( Article CARDINAL ) .","Articles CARDINAL and CARDINAL provide that the decisions of a court , ordering detention on remand or altering it , taken during the preliminary hearing or during the adjudication of the matter , may be appealed to a higher court .","Article CARDINAL sets time - limits for examination of a case and provides that the examination of a case before a court must start not later than within DATE or , under exceptional circumstances , no later than within DATE , after the case is received by the court .","A judgment of the first instance court enters into force and becomes final after expiry of the time - limit provided for appeal of this judgment , if the judgment has not been appealed . A judgment of an appellate court enters into force and becomes final after expiry of the time - limit provided for cassation appeal of this judgment , if the judgment has not been appealed . If a cassation appeal has been submitted , the judgment becomes final after its examination by the cassation court , if the court does not quash the judgment ( Article CARDINAL ) .","Criminal Code ( Latvijas Krimin\u0101lkodekss ) , applicable at the material time ( in force until DATE )","The relevant part of Article CARDINAL provided that a court can decide to order expulsion from GPE of a person , who is not a national of GPE . The expulsion is a supplementary punishment and is effected after serving the sentence .","Until CARDINAL DATE the situation of persons detained in remand prisons was governed by the \u201c Instruction on the Procedure of Keeping Suspected , Accused , ORG \u201d ( GPE par aizdom\u0101s turamo , aps\u016bdz\u0113to , apcietin\u0101to un noties\u0101to tur\u0113\u0161anas k\u0101rt\u012bbu izmekl\u0113\u0161anas cietumos ) , approved by the Minister of the Interior on DATE ( hereinafter referred to as \u201c the Instruction \u201d ) .","DATE . Rule CARDINAL of the Instruction provided that the sentenced persons and the arrested persons placed in the investigation prisons were allowed to send letters and to receive short - term visits upon approval by the authority conducting the criminal proceedings ( i.e. either by investigating authorities or the court , depending on the stage reached in the proceedings ) .","Rule CARDINAL of the Instruction stipulated that the arrested persons placed in the investigation prisons might be allowed to receive CARDINAL short - term visit ( up to one hour ) per month from family members and other persons only on the basis of a written permission from the person or the body dealing with the particular criminal case .","Rule CARDINAL of the Instruction provided that visits in the investigation prisons took place in the presence of a prison authority .","In DATE the penitentiary institutions were transferred from the supervision of ORG to ORG . On DATE the Minister of ORG approved new \u201c Transitional Provisions on the Procedure of Keeping Suspected , Accused , ORG \u201d ( GPE noteikumi par aizdom\u0101s turamo , aps\u016bdz\u0113to , apcietin\u0101to un noties\u0101to tur\u0113\u0161anas k\u0101rt\u012bbu izmekl\u0113\u0161anas cietumos ) which entered into force on DATE ( hereinafter referred to as \u201c the Transitional Provisions \u201d ) .","Rule CARDINAL of the Transitional Provisions provides that the sentenced persons and the arrested persons may be allowed to receive CARDINAL short - term visit per month on the basis of a written permission from the authority dealing with the particular criminal case .","Civil Procedure Code ( ORG kodekss ) , applicable at the material time ( in force until DATE )","Article CARDINAL \u00a7 CARDINAL provides that decisions of the state authorities , which affect the rights and obligations of individuals , are subject to judicial review by the court which is fully authorised to quash the impugned decisions and terminate the administrative proceedings against the concerned individuals .","According to LAW , the absence of an individual , who has submitted a complaint , at court proceedings is not an obstacle for the court to hear the merits of the case ; however , the court may declare the individual 's presence mandatory .","The court , having found the appealed act or decision unlawful and infringing the rights of an individual , declares the complaint lawful and obliges the responsible authority to remedy the violation complained about ( Article CARDINAL ) .","Law on Entry and Residence in GPE ( NORP par \u0101rvalstnieku un bezvalstnieku iece\u013co\u0161anu un uztur\u0113\u0161anos GPE ) , applicable at the material time ( in force until DATE )","DATE . The Head of the department or the Head of a territorial unit shall issue an expulsion order , demanding the departure of a person from the territory of the ORG if , inter alia , an alien resides in the ORG without a valid visa or residence permit or if the alien has otherwise violated the visa regime ( LAW ) .","A person is obliged to leave the territory of the state within DATE from the moment he \/ she has been notified of an expulsion order unless the order has been appealed . The person who has been notified of an expulsion order may appeal it within DATE to the Head of the department . The person may reside in the territory of the state during the examination of the appeal . The decision of the Head of the department may be appealed within DATE from its receipt , by submitting an appeal to a relevant court ( Article CARDINAL ) .","The Head of the department of a territorial unit can decide on the forced expulsion of a person if this person within DATE of the notification about the expulsion order has not appealed it , as provided for by LAW , or his \/ her appeal has been dismissed ( Article CARDINAL ) .","Other relevant regulations","Article CARDINAL \u00a7 CARDINAL of the Law on Public Prosecutor 's Office ( Prokurat\u016bras likums ) states that ORG is an institution of judicial power , which independently carries out supervision of the observance of law within the scope of its competence .","The relevant part of LAW ) states that every person has the right to defend his or her rights and lawful interests in a fair trial . In case of unlawful interference with his or her rights , everyone is entitled to adequate compensation .","The judgments of ORG tiesa )","The judgment of DATE in case no . DATE , in the relevant part , reads as follows :","\u201c ... ORG established :","... the court verdict of not guilty is determined as the legal basis for receiving the compensation . The criterion of the addressees of LAW is non - existence of person 's guilt . Thus , it refers only to those persons , whose liberty has been limited because of an arrest , but who are not guilty of a criminal case and the fact has been acknowledged by a court judgment ... . \u201d","The judgment of DATE in case no . DATE , in the relevant part , reads as follows :","\u201c ... ORG established :","The Transitional Provisions [ on the Procedure of Keeping Suspected , Accused , ORG ; confirmed by the Minister of ORG on DATE ] have been passed in compliance with LAW on the Structure of ORG , determining that individual ministers may issue instructions binding on the institutions subordinate to them if the respective issue has not been regulated by the PERSON on the Structure of the Cabinet of Ministers . Instruction No . CARDINAL - CARDINAL\/CARDINAL envisages that the personnel of ORG and the institutions subordinated to it shall be acquainted with LAW . ... LAW ... have [ not ] been published for common knowledge .","Thus LAW ... are internal normative acts ... . \u201d"],"violated_articles":["5","6","8"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71886","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2005,"docname":"OTTO v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who lives in GPE ( GPE ) . He was represented before the ORG by PERSON , a lawyer practising in GPE .","The applicant is a member of the political party \u201c the NORP \u201d ( ORG PERSON , in the following PERSON ) . The party is considered as populist and right - wing and has therefore been under scrutiny by the offices for the protection of the constitution ( PERSON ) in various GPE ( L\u00e4nder ) . In the general elections in DATE , PERSON achieved PERCENT of the votes . The party has not been declared unconstitutional by ORG in accordance with LAW ( CARDINAL ) of the LAW . The applicant stood for the party as a candidate in local elections in DATE and as a substitute candidate in regional elections in the State ( Land ) GPE in DATE . Moreover , he contributed to activities of the party \u2019s county association on a regular basis .","The applicant had been employed as a civil servant with the ORG police since DATE . He was promoted several times , lastly in DATE to the position of detective superintendent ( PERSON ) . He retired in DATE .","Although the applicant received above - average appraisals at work , he was not considered for a further promotion to chief inspector ( GPE ) despite the fact that there were such openings as from DATE . Following his inquiry about the reasons for not having been promoted , ORG informed the applicant in a letter dated DATE that promotions were generally based on suitability , capabilities and professional qualifications . Regarding his suitability , ORG expressed severe doubts due to his active membership of ORG , a party which was suspected to pursue anti - constitutional goals . Therefore , his promotion process had been stayed until further instructions by GPE of the interior would be received regarding the matter .","The applicant subsequently instituted proceedings against the lack of promotion to the position of chief inspector . On DATE , ORG dismissed the applicant \u2019s claim , finding that the decision not to promote the applicant had been lawful . The court noted that public servants were generally not entitled to a promotion which was subject to the employer \u2019s discretion with regard to suitability , capabilities and professional qualifications . The employer enjoyed a margin of appreciation in this respect . That margin had not been overstepped by basing unsuitability for promotion of a public servant on active membership in a political party seeking to undermine the free democratic constitutional system . Having regard to a judgment by GPE of DATE , the court considered Die ORG as a party with unconstitutional goals . Both before and during the proceedings , the applicant had failed to dissociate himself from right - wing fundamentalist utterances of party officials . Moreover , the fact that only ORG could declare a prohibition of a political party with unconstitutional goals ( and had not yet done so with regard to PERSON ) was no obstacle . Whereas the NORP constitution granted every citizen the right to work the free democratic constitutional system as a member of a party which is not prohibited , the duty of loyalty required from public servants ( which is laid down in LAW ( CARDINAL ) of LAW ) would demand that every public servant defend this order . Lastly , the court found that the judgment of ORG in the case of GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) would not require a different ruling . That case concerned the dismissal of a public servant as opposed to non - promotion in the present case . Hence the question of proportionality had to be considered differently .","On DATE , GPE dismissed the applicant \u2019s appeal and refused to grant leave to appeal on points of law . The court found that the applicant \u2019s employer had not overstepped his margin of appreciation as the suitability of public servants could lawfully be assessed with regard to their duty of loyalty . Membership in a party which pursued goals which were not in accordance with the free democratic constitutional system was sufficient to cast doubt on whether a public servant was a suitable candidate for promotion . Since the party in question had been scrutinised by various offices for the protection of the constitution in GPE , and this scrutiny had been found lawful by numerous ORG in GPE , the court did not itself have to establish whether or not the activities of PERSON were unconstitutional . With regard to the proportionality of the decision not to promote the applicant , the court found that the judgment in the case of GPE v. GPE ( above - mentioned ) did not demand a different ruling since the applicant in the present case had already been promoted several times and had not been deprived of his professional and economic basis by the decision not to promote him further .","The applicant \u2019s appeal against the refusal to grant leave to appeal on points of law was dismissed by ORG on DATE .","On DATE , ORG refused to admit the applicant \u2019s constitutional complaint . It held that the administrative courts\u2019 assessment concerning the unconstitutional goals of ORG was in line with the jurisprudence of various ORG in different GPE ( L\u00e4nder ) . The courts had rightly granted the employer a margin of appreciation when assessing the applicant \u2019s suitability for promotion . ORG found that the domestic authorities and courts had lawfully taken into account the applicant \u2019s political activities even though it had not yet itself declared PERSON an unconstitutional party in accordance with LAW ( CARDINAL ) of the LAW .","The relevant provisions of LAW are worded as follows :","Section CARDINAL","\u201c CARDINAL . Parties which , through their aims or the conduct of their members , seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be anticonstitutional . ORG shall determine the question of anti - constitutionality . \u201d","Section CARDINAL","\u201c CARDINAL . All NORP shall have an equal right of admission to the civil service according to their suitability , capabilities and professional qualifications .","The exercise of sovereign authority on a regular basis shall , as a rule , be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law . \u201d","The relevant provision of GPE is worded as follows :","Section CARDINAL ( CARDINAL )","\u201c Nominations shall be carried out on the basis of suitability , capabilities and professional qualifications regardless of sex , race , religious or political beliefs , origin or relationships . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93695","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF G\u00d6K AND G\u00dcLER v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the second applicant was arrested and taken into police custody on suspicion of membership of an illegal armed organisation , namely the ORG ( Workers\u2019 ORG ) . The first applicant was arrested and detained , on DATE , on the same grounds .","On DATE the applicants and CARDINAL other suspects were identified as those responsible by PERSON and PERSON , eyewitnesses to the killing of their father , Mr M.S.T. , by the ORG .","On DATE the applicants were interrogated by CARDINAL police officers , in the absence of a lawyer , and they both gave detailed statements regarding their participation in , inter alia , the killing of Mr M.S.T and kidnapping of ORG , on DATE , on behalf of the ORG .","On DATE the applicants , in the absence of a lawyer , were first asked to identify from photos a deceased suspect and later confronted with other suspects . During this procedure both applicants gave details about the other detainees , such as their code names and acts undertaken by them .","On DATE , at TIME , the applicants were examined by a doctor who noted that the first applicant had a bruise of QUANTITY on his lower lip and that the second applicant had CARDINAL scratches of QUANTITY on his lower right knee and pain in his back and lower back .","In their application form the applicants submitted that they had been subjected to ill - treatment while in police custody . In this connection , they claimed that they had received electric shocks , falaka ( beating of the soles of the feet ) and NORP hanging .","In a letter to the ORG dated DATE the first applicant submitted , inter alia , that during his arrest he and his family had been sworn at and threatened and that when they had arrived at the police station he had been blindfolded . Subsequently , he had been interrogated by CARDINAL or QUANTITY police officers who had kicked and punched him and hit him with sticks . CARDINAL of them had hit him in the stomach and another had stood on his head . When he had denied the accusations , they had subjected him to hanging and to electric shocks on his penis and feet . Later , when he had refused to sign a statement written by the police , QUANTITY police officers had punched him in the face and squeezed his penis . Because of the pain he had signed the statement . The applicant further stated that the doctor who had examined him had seen the swelling on his lips and penis and had decided to transfer him to hospital but that the relevant paper had been ripped up by the police .","On DATE the applicants were brought before the public prosecutor at ORG where they refused to give any statements .","DATE the applicants were brought before a judge at ORG where they refuted the contents of their statements to the police . The second applicant claimed that some of these submissions had been written by the police and that he had made others under duress . The first applicant submitted that the police had made him sign the statement without reading it . The judge remanded them in custody .","On DATE the public prosecutor at ORG indicted the applicants LAW for engaging in activities for the purpose of bringing about the secession of part of the national territory . In particular , they were accused of participating in the killing of Mr M.S.T and kidnapping of ORG on CARDINAL DATE .","DATE and DATE the court held hearings on a regular basis during which it examined the accused and a number of witnesses , including those appearing for the defence . In particular , testimony was taken from the wife and sons of Mr M.S.T. , including Mr ORG All of them claimed that they would not be able to identify the perpetrators , in particular because they had been wearing masks . They further submitted that they knew the applicants because they were from the same village and were relatives but that they had never stated , during the identification procedure , that the applicants were responsible for the killing of Mr M.S.T. The court also took testimony from the police officers who had conducted the identification procedure and who stood by the content of the verbatim reports drawn up in that connection . On DATE one of the judges , acting as rapporteur , examined the video footage of the re - enactment of events and submitted his report to the court . The applicants contested the report . On numerous occasions the applicants\u2019 lawyer requested their release stating , in particular , that , apart from statements obtained under duress and torture , there was no evidence to convict the applicants . At a hearing on DATE the prosecutor submitted his observations on the merits in which he requested the ORG conviction under LAW . The accused were granted time to submit their additional observations .","At a hearing on DATE the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time . At this hearing the court heard the additional defence submissions of CARDINAL of the accused , including the second applicant . The next hearing was held on DATE , when the court heard the submissions of the ORG representative , the second applicant and some of the other accused .","In the meantime , on DATE , the applicants submitted their final written defence submissions in which they claimed that they had been subjected to torture , as shown by their medical reports , and that instead of opening an inquiry , the prosecution and the court had relied on their statements obtained under duress .","On DATE the first applicant wrote a letter to the court proclaiming his innocence . He reiterated that the police had made him sign some documents under torture .","On DATE the court held a hearing . On DATE it decided to convict the applicants under , inter alia , LAW and sentenced them to DATE and QUANTITY months\u2019 imprisonment . In its decision , the court held that the applicants , in their police statements , had acknowledged their relationship to and activities within the organisation and that although they had later retracted those statements , the court , having regard to the evidence in the case file , did not find their later submissions credible .","In the meantime , on DATE , the first applicant wrote to PERSON , the chair of ORG of ORG , complaining about his alleged illtreatment . On DATE the PERSON public prosecutor \u2019s office decided not to commit any police officer for trial on the ground that the statutory time - limit for prosecution of the offence had expired . On DATE the applicant filed a second petition with ORG of ORG . Once again , on DATE , the prosecutor decided that , despite recent amendments to the relevant provisions , the statutory timelimit in respect of the applicant \u2019s complaint remained the same .","On DATE the applicants appealed . In their petition they submitted , inter alia , that the first - instance court had based its conviction on their statements in police custody which had been obtained under duress . In this connection , they referred to their medical reports .","On DATE ORG held a hearing and upheld the judgment of the first - instance court in so far as it concerned the applicants\u2019 conviction and sentence .","On DATE the applicants were released from prison ."],"violated_articles":["3","6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106789","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2011,"docname":"CASE OF FOMIN v. MOLDOVA","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["The applicant was born in DATE and lives in GPE .","The applicant works as a technician for a ORG telephone company . On DATE she called NORP over the phone and they arranged for the applicant to visit NORP at her house situated on GPE . no . CARDINAL in GPE in order to verify the functioning of the phone line installed there . TIME when she came to NORP \u2019s home , she was met by NORP who , according to the applicant , started shouting at her and calling her names .","The applicant called the police from her mobile phone , but was told that she needed to go to the police station in person in order to make a written complaint . She decided to go back to her workplace and told her superior about the incident , but was advised to forget about it . She was told that NORP had already called her superior to complain about an alleged assault on her by the applicant .","R. complained to the police that the applicant had assaulted her on DATE . According to ORG \u2019s complaint , the applicant had entered her apartment situated on Viilor str . CARDINAL apartment CARDINAL without authorisation and started ripping the phone lines off the wall and insulting her with offensive language . The applicant had then gone to the cellar and destroyed the phone socket and phone lines . She had been extremely irritated and one could smell alcohol on her breath . Finally , she had hit NORP in the face and left . NORP \u2019s husband wrote a similar complaint , also noting PERSON str . CARDINAL as being the address of the apartment where the incident had taken place .","On DATE the local police filed a report confirming that the applicant had committed an administrative offence by insulting NORP The report attested that on DATE the applicant had entered NORP \u2019s apartment without authorisation , insulted her with offensive language and then hit her in the face , causing her physical harm .","On DATE the Soroca ORG found the applicant guilty of the administrative offence of hooliganism .","On an unknown date ORG sent the case for a rehearing .","NORP The applicant submitted statements from CARDINAL companies she had visited on DATE , all confirming that she had been polite and not under the influence of alcohol DATE , which contradicted PERSON \u2019s statements concerning the applicant \u2019s aggressiveness and alcohol consumption . She also submitted a certificate confirming that no repair of the phone lines at NORP \u2019s home or office had been asked for on DATE or thereafter , and evidence that after her alleged visit phone calls had been made from both phone lines . That proved , in the applicant \u2019s opinion , that the statements in NORP \u2019s complaint concerning the ripping out of the phone line and phone socket had been untrue . She submitted further evidence proving that her company had a contract to service the phone line installed at NORP \u2019s place , that she had been asked to verify a number of phone lines on DATE , including that at NORP \u2019s place , and evidence of the applicant \u2019s call to the police on DATE .","On DATE the GPE ORG found the applicant guilty of the administrative offence of insult ( injuria ) . The decision was an almost word - for - word copy of that adopted on DATE and reads as follows in its entirety :","\u201c Decision concerning the administrative offence under LAW , DATE","Judge PERSON of ORG , having examined the case concerning the administrative offence regarding [ the applicant , her address and workplace ] , has found :","On DATE at TIME [ the applicant ] entered [ NORP \u2019s ] apartment situated on GPE str . CARDINAL , apartment CARDINAL without authorisation and started shouting and calling her names , thus denigrating [ R. \u2019s ] honour and dignity , therefore committing the administrative offence provided for in LAW .","The allegation that [ the applicant ] hit the victim has not been confirmed .","In view of the above , relying on [ relevant procedural provisions of LAW ] , the court decides :","To impose a fine on [ the applicant ] in the amount of CARDINAL conventional units amounting to CARDINAL [ GPE ] lei .","This decision may be appealed against within DATE to ORG of Appeal \u201d .","In her appeal in cassation the applicant submitted that there was no evidence whatsoever that she had ever been in NORP \u2019s apartment at GPE str . or shouted at her . The court had not given any ground for the decision such as a document , witness statement or anything other than the statements by NORP and her husband . Moreover , she had visited NORP at her address at Viilor str . no . CARDINAL and not at GPE str . no . CARDINAL as stated in the decision . Finally , the court had disregarded LAW ( see below ) , according to which no administrative penalty could be imposed after DATE from the date on which the offence had been committed .","On DATE ORG upheld the lower court \u2019s decision . The court \u2019s decision started by stating that :","\u201c By its decision [ of DATE ] the [ lower court ] imposed an administrative penalty on [ the applicant ] because on DATE she insulted [ NORP ] in her apartment situated on GPE str . in GPE , thus denigrating [ R. \u2019s ] honour and dignity . \u201d","It then summarised the applicant \u2019s appeal . The court further found that the lower It correctly dismissed the part of the complaint that the applicant had hit NORP , since during the court hearing NORP herself had denied having been hit . The court reduced the fine to CARDINAL NORP lei ( MONEY ( ORG ) ) , using a slightly different manner of calculating the amount of the fine . That decision was final . Its text was accessible at FAC , where it arrived on DATE .","The relevant provisions of LAW ( \u201c the ORG \u201d ) read as follows :","\u201c Section CARDINAL\/CARDINAL . Insult","Insult , that is , the intentional denigration of honour and dignity of a person through an action , verbally or in writing , shall be punished by a fine of CARDINAL conventional units or by administrative detention of DATE .","Section CARDINAL . Circumstances to be clarified during the examination of the case concerning an administrative offence .","The authority ( official ) shall clarify during the examination of the case concerning an administrative offence : whether an administrative offence has been committed ; whether the person is guilty of having committed it ; whether ( s)he should be subjected to administrative responsibility ; whether there are circumstances attenuating or aggravating responsibility ; whether pecuniary damage was caused ; whether there are grounds for forwarding the materials concerning the administrative offence for examination by a public association , the staff [ of his \/ her employer ] ; as well as other circumstances which are important for the examination of the case . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82585","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2007,"docname":"CASE OF MIKULJANAC, MALISIC AND SAFAR v. SERBIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13","judges":"","text":["The applicants were born in DATE , DATE and DATE , respectively , and live in GPE .","On DATE the applicants were dismissed from their work .","On DATE they instituted civil proceedings in ORG against their former employer , seeking reinstatement and salary arrears .","Sometime after the respondent ORG 's ratification of ORG , the applicants ' case was assigned to another judge .","The next hearing in the case was held on DATE , when the court decided to hear several witnesses .","The hearing scheduled for DATE was adjourned by the judge . Subsequently , the case was yet again assigned to another judge and the next hearing was scheduled for DATE , but did not take place because the witnesses had not been duly summoned .","The next hearing , scheduled for DATE , was adjourned because the summoned witnesses failed to appear .","On DATE the court held a hearing and heard the applicants and a witness . The applicants requested the court to obtain an additional expert opinion concerning the amount of their salary arrears . The court held CARDINAL more hearings DATE on DATE and CARDINAL DATE .","On DATE the court ordered the applicants to advance the costs of the proposed expert opinion and to suggest an expert . The applicants did so on DATE . At the next hearing held on DATE , the court ordered that the expert opinion be obtained . The appointed expert submitted the opinion on DATE .","The court held further hearings on DATE and DATE . The respondent then filed a request for a transfer of jurisdiction , which was dismissed by ORG on DATE .","The court held further hearings on CARDINAL and DATE and on DATE . On the last mentioned date the court gave judgment , accepting the applicants ' claim . The applicants appealed against the decision on costs and the proceedings are currently pending before the second - instance court .","The relevant provisions of this legislation are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","Article CARDINAL \u00a7 CARDINAL provided that all employment - related disputes were to be resolved by the courts within DATE from the date of institution of the proceedings .","This Act entered into force on DATE and thereby repealed LAW of DATE .","The text of LAW of LAW of DATE corresponds to the aforementioned LAW of DATE .","The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL , DATE ) .","Article CARDINAL of this Code defines \u201c judicial malfeasance \u201d ( kr\u0161enje zakona od strane sudije ) as a separate criminal offence .","Article CARDINAL of LAW ( Ustav PERSON ) , published in ORG of GPE ( ORG - no . CARDINAL ) , provided as follows :","\u201c Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .","Such damages shall be covered by GPE or the public authority [ in question ] . \u201d","This LAW was repealed on DATE , which is when the \u201c new \u201d LAW ( published in OG RS no . CARDINAL ) entered into force .","The substance of LAW of LAW corresponds , in its relevant part , to the above - cited text of the aforementioned LAW .","Article CARDINAL of the new LAW provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by LAW .","Section CARDINAL of LAW on LAW ( ORG RS CARDINAL ) provides that the election of ORG judges shall be finalised before the end of the first ORG session ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96762","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2009,"docname":"MEISTER (V) v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","In DATE the applicant applied for the advertised post of application developer ( PERSON ) with ORG ( \u201c S \u201d ) , a limited liability company developing and trading navigation software . S decided to hire another candidate , inter alia because of the latter \u2019s proven interest in navigation .","In DATE the applicant , relying on ORG ) , brought an action for damages against the company , claiming that she had been discriminated against on the grounds of her sex , age and possibly also ( NORP ) origin .","On DATE ORG dismissed her action as unfounded . It pointed out that according to ORG a person claiming compensation was required to establish the existence of at least some indications of discrimination . It held that the applicant had failed to set out sufficiently that she had been discriminated against on CARDINAL of the grounds enumerated in LAW . In its reasoning the court dealt with the applicant \u2019s arguments and set out why there were neither sufficient indications nor any kind of proof of the alleged discrimination .","On DATE ORG confirmed the first - instance decision . It referred to the reasons given by ORG and again set out the main reasons why there was no indication of discrimination under LAW . It refused to grant leave to appeal on points of law . The judgment was served on the applicant \u2019s lawyer on DATE .","By a letter of CARDINAL DATE the applicant requested ORG to assign her counsel and legal aid . On DATE ORG gave her the file number of her legal aid request . By letters of CARDINAL and DATE the applicant informed ORG that her letter of DATE should also be seen as a complaint against the refusal to be granted leave to appeal on points of law ( Nichtzulassungsbeschwerde ) and supplemented her reasoning . On DATE ORG gave her the file number of her complaint about the refusal to be granted leave to appeal on points of law . By a letter of CARDINAL DATE the applicant added further arguments to her requests . In DATE the applicant sent several further letters to remind ORG of her requests .","On DATE the applicant lodged a constitutional complaint against ORG failure to act in the proceedings concerning her requests of DATE . On DATE ORG refused to admit the constitutional complaint for adjudication , without giving any reasons .","On DATE ORG informed the applicant that with regard to ORG decision of DATE about her constitutional complaint \u201c against the decision of the senate \u201d , it \u201c considered the matter resolved \u201d ( \u201c betrachtet der ORG die FAC \u201d ) .","By a letter of CARDINAL DATE the applicant again asked ORG to decide upon her requests and pointed out that her constitutional complaint was directed against its failure to act and not against a \u201c decision of the senate \u201d , as there had never been such decision .","On DATE and DATE the ORG refused to admit for adjudication further constitutional complaints by the applicant against ORG failure to act .","By a letter of DATE the applicant lodged a motion for bias against the judges of ORG involved in her proceedings . ORG on DATE again informed the applicant that her requests of DATE had been resolved and struck off the list , so that there was no point in deciding her motion for bias .","On DATE the ORG refused to admit for adjudication the applicant \u2019s constitutional complaint against ORG failure to decide on her motion for bias . It held that due to a misinterpretation of ORG decision of DATE ORG had considered the matter resolved and failed to take a decision in the proceedings . The right to effective legal protection required court proceedings to be terminated within a reasonable time . In this regard it also pointed to LAW . ORG concluded that with regard to its clarification , it could be expected that ORG would neither continue to refuse to take a decision in the applicant \u2019s proceedings ( concerning her requests of DATE and the motion for bias of DATE ) nor would it fail to take such decisions within reasonable time .","On CARDINAL DATE ORG rejected the applicant \u2019s legal aid request for her complaint against the refusal to be granted leave to appeal , holding that the complaint lacked reasonable prospects of success . On DATE ORG declared inadmissible the applicant \u2019s complaint against the refusal to be granted leave to appeal because she was not represented by counsel , as statutorily required .","In DATE the applicants lodged a criminal complaint ( PERSON ) against ORG judges involved in her proceedings . On DATE ORG refused to institute preliminary investigations . It held that the applicant \u2019s allegations were unsubstantiated . There were no indications of a criminal offence in the applicant \u2019s submissions .","The applicant appealed against this decision with ORG .","According to section QUANTITY CARDINAL and CARDINAL of FAC ( Arbeitsgerichtsgesetz ) ORG refusal to grant leave to appeal on points of law can be challenged by a complaint ( Nichtzulassungsbeschwerde ) to ORG . According to section CARDINAL of FAC a party has the opportunity to request legal aid and the assignment of counsel .","Pursuant to section QUANTITY the parties in proceedings with ORG and ORG have to be represented by counsel ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90804","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF BORZHONOV v. RUSSIA","importance":3,"conclusion":"Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13+6-1;Violation of Art. 6-1;Violation of Art. 13+P1-1;Violation of P1-1;Pecuniary and non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in the town of PERSON in GPE .","The NORP authorities initiated criminal proceedings against the applicant :","- on DATE under LAW ( tax evasion by a private person ) ; the applicant was charged on DATE ;","- on DATE under LAW ( abuse of power ) ;","- on DATE under LAW ( tax evasion by a legal entity ) ;","- on DATE under LAW ( b ) ( misappropriation of private property ) ;","- on DATE under Article CARDINAL ( causing pecuniary damage ) .","The above cases were joined on a number of occasions , most recently on DATE . According to the ORG , the charges under ORG CARDINAL and CARDINAL of the Code were abandoned on CARDINAL DATE and DATE respectively ( see , however , paragraph CARDINAL below ) .","According to the ORG , the proceedings were suspended on DATE , CARDINAL DATE and CARDINAL DATE , DATE and DATE , and DATE , owing to the applicant \u2019s illness . According to the Government , the applicant and his counsel were advised that the proceedings had been suspended on a number of occasions and subsequently resumed .","On DATE the applicant sought access to the case file and , in particular , to the above - mentioned decisions to suspend the proceedings . On DATE the Prosecutor \u2019s Office of GPE sent him a letter stating that the case file might be available at the archives of ORG in PERSON . On DATE ORG of ORG of the ORG informed the applicant that the criminal case against him had been suspended owing to his illness . Upon his renewed request , on DATE the applicant received another reply from ORG of ORG stating that ORG might be able to provide the requested documents . On DATE ORG informed the applicant that on DATE the criminal case against him had been forwarded to ORG of GPE .","On DATE ORG discontinued the proceedings as regards charges under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW .","In DATE the applicant bought a PAZ-CARDINAL bus . On DATE the investigator in the criminal case against the applicant ( see above ) authorised seizure of the bus as security for eventual civil claims against him or eventual confiscation as a penalty under LAW ( b ) of LAW ( see paragraph CARDINAL below ) . On DATE the applicant \u2019s bus was seized . It appears that no civil claims were lodged in the criminal case against the applicant .","On an unspecified date the bus was transferred for safekeeping to a Mr Y.","NORP In DATE the applicant brought proceedings in which he challenged the investigator \u2019s seizure order as unlawful and requested the court to release the bus .","On DATE the ORG of PERSON examined the applicant \u2019s claims with reference to LAW ( see paragraph CARDINAL below ) and rejected them as unfounded . The court held as follows :","\u201c ... under LAW \u00a7 CARDINAL of LAW in order to secure civil claims or eventual confiscation of property the investigator shall issue an order of attachment in respect of the accused \u2019s property which had been unlawfully obtained . LAW CARDINAL of LAW of the Russian Federation provides for confiscation as a penalty . Besides , the case discloses pecuniary loss [ sustained by the victim ] , and the victim has the right to file a civil claim for damages against the applicant ...","The court finds no reasons for leaving the bus with [ the applicant ] for safekeeping ...","The [ first instance ] court rejected the applicant \u2019s arguments to the effect that his property rights over the bus had been breached by the continuing attachment of property and the criminal case is still pending . The case is being suspended owing to the applicant \u2019s illness ... \u201d","On DATE ORG upheld the judgment on appeal . The court stated :","\u201c Under LAW \u00a7 CARDINAL LAW , which is now applicable to issues pertaining to attachment of property , the authority dealing with the criminal case has the power to release the property under the order of attachment , if attachment is no longer needed . As shown by the case file , at present the criminal case against the applicant is being dealt with by the investigating authority , the investigation being suspended . Taking into account the earlier submissions and the requirement of the procedure under LAW , the court is not empowered to decide on the issue of lifting the order of attachment ... \u201d","On DATE the deputy prosecutor of GPE lifted the order of attachment in respect of the applicant \u2019s bus . The applicant was served with a copy of that decision on DATE . It appears that the authorities were unable to determine where the bus was kept and thus could not return it to the applicant .","Under LAW ( b ) of the LAW , in force at the material time , misappropriation of another \u2019s property committed on a large scale or in view of the person \u2019s hierarchical status was punishable by a sentence of imprisonment of DATE with or without confiscation of property . Under LAW of DATE ( no . CARDINAL ) , confiscation as a penalty was removed from LAW , including its LAW ( b ) . On DATE a new LAW reintroducing the notion of confiscation was inserted into the LAW in relation to a number of offences . The offences under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL were not concerned .","A preliminary investigation in a criminal case had to be completed within DATE starting from the date when the proceedings were initiated until DATE when a bill of indictment was sent to the prosecutor or when the proceedings were terminated or suspended ( Article CARDINAL ) . The preliminary investigation could be suspended if the accused had absconded or if his whereabouts had not been determined or if he was suffering from a mental or other serious disease . The investigator had to issue a reasoned decision ( Article CARDINAL ) . Pursuant to LAW , a prosecutor was competent to examine complaints against decisions taken by an inquirer or an investigator . By a ruling of DATE , ORG invalidated this provision in so far as it excluded a possibility of judicial supervision over such decisions , including those relating to suspension of proceedings and imposition of charging orders .","Under LAW of the LAW , the preliminary investigation can be suspended , inter alia , if the suspect or accused is temporarily suffering from a serious disease which prevents him from participating in the investigation . A victim , civil claimant or respondent and their representatives should be notified accordingly and apprised of their right to appeal against the decision suspending the proceedings ( LAW ) . A suspect or accused and counsel should also be informed , if the suspension was caused by his or her illness .","Articles CARDINAL and CARDINAL of the Code concern judicial supervision over any ( in)action on the part of an inquirer , investigator or prosecutor in so far as such ( in)action affects a complainant \u2019s rights or impedes his or her access to a court . The judge either ( i ) invalidates the impugned ( in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation , or ( ii ) rejects the complaint .","A decision terminating the criminal proceedings should be handed over or dispatched to the person concerned ( LAW ) .","Article CARDINAL \u00a7 CARDINAL of the LAW safeguards a so - called \u201c right to rehabilitation \u201d , including a right to full compensation in respect of pecuniary and non - pecuniary damage caused by criminal prosecution of a person who has been acquitted or in respect of whom the criminal proceedings have been terminated , inter alia , owing to a lack of corpus delicti or because the person had not been involved in the criminal act . The investigator issues a decision in which he or she recognises the person \u2019s right to rehabilitation and also sends notification explaining the procedure for obtaining compensation ( LAW ) .","A person who has sustained pecuniary damage or loss from a criminal offence has a right to lodge a civil claim against the accused . He or she can exercise this right from the commencement of the criminal proceedings until the opening of the trial ( LAW ) .","If sufficient reasons obtain as to the existence of pecuniary damage caused by a criminal offence , the investigating authority or a court should take measures for securing the existing or eventual civil claim and\/or for impeding the accused from hiding his property , if the charges against him carry confiscation as a possible penalty ( LAW ) .","According to LAW , in order to secure civil claims or eventual confiscation of property , the investigator should issue a charging order in respect of an accused \u2019s property ; that of persons who are liable by law for the accused or suspect \u2019s actions ; that of other persons who are in possession of the property acquired through unlawful actions . Property attached may be impounded or transferred at the attaching official \u2019s discretion for safekeeping to a competent authority or left with the owner or other person who shall be warned about responsibility for keeping the property safe , and the fact shall be mentioned in the relevant record . The investigator lifts the charging order if it is no longer needed .","Under LAW , in order to ensure execution of a judgment in a part pertaining to a civil claim , to satisfy other pecuniary penalties or an eventual confiscation of property , an inquirer or investigator , subject to the prosecutor \u2019s consent , or a prosecutor should apply to a court for a charging order in respect of the suspect \u2019s or accused \u2019s property . The court should examine such request under the procedure set out in LAW . A charge or attachment of property prohibits the proprietor or owner from disposing of , and , if appropriate , using the property ; it may require impounding of that property and its transfer for safekeeping to its proprietor or owner or a third person ( \u00a7 \u00a7 CARDINAL and CARDINAL ) . A charging order is lifted by the authority dealing with the criminal case when the charge is no longer needed ( \u00a7 CARDINAL ) .","On DATE Article CARDINAL \u00a7 CARDINAL of the Code was amended to exclude an eventual confiscation of property as a reason for requesting a charging order . A charging order could only concern property acquired by the suspect , accused or another person as a result of criminal activity or by criminal means .","On DATE Article CARDINAL \u00a7 CARDINAL of the Code was amended to reintroduce an eventual confiscation of property as a reason for requesting a charging order ; in such circumstances it became incumbent on the court to indicate the relevant circumstances in its decision .","By decision no . CARDINAL of DATE ORG held , in the context of proceedings concerning LAW ORG on real evidence , that provisional measures such as imposition of a charge on one \u2019s property may be required in criminal proceedings and should not be considered as a violation of constitutional rights and freedoms , including property rights . ORG scrutiny of such measures as to their lawfulness should also encompass an assessment of whether other measures would be inappropriate , with due regard to the gravity of the charges in relation to which provisional measures have been taken , as well as to the nature of the property under the charge , its importance for its owner or holder and other eventual negative effects that the charge might have . Thus , it is incumbent on the investigator and , subsequently , on the reviewing court to be satisfied that the property under the charge should or should not be returned to its owner for safekeeping until the closure of the criminal proceedings ."],"violated_articles":["13","6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4663","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":1999,"docname":"SLAVOV v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Josep Casadevall","text":["The applicant , a stateless person , was born in GPE in DATE . Before the ORG he is represented by Mr PERSON , a lawyer practising in GPE .","The applicant moved to GPE from GPE in DATE . Since DATE , he is married to a NORP national , GPE He also has a DATE daughter who lives in GPE .","As from DATE the applicant has been convicted on many occasions for serious and repeated crimes , inter alia crimes against property , including robbery , as well as smuggling of goods and narcotics offences of an aggravated nature . He has been sentenced to the following terms of imprisonment : DATE , DATE , DATE , DATE CARDINAL years , DATE . He was released on probation on DATE . At that time , DATE and DATE of his sentences had not been served .","The applicant \u2019s expulsion from GPE was ordered in DATE and DATE . However , by a Government decision of DATE , the expulsion orders were revoked by pardon as the applicant risked political persecution in GPE . Having regard to that decision , ORG ( tingsr\u00e4tten ) of ORG , in its DATE judgment , refrained from ordering the applicant \u2019s expulsion .","In DATE the applicant was charged with having possessed and stored , with the intention to sell , QUANTITY of amphetamine in DATE . However , on DATE , ORG acquitted the applicant .","By a judgment of DATE ORG of GPE convicted the applicant for CARDINAL narcotics offences , CARDINAL of which was considered as aggravated , illegal possession of a weapon and falsification of a passport . All the crimes had been committed in DATE . The more serious narcotics offence involved the possession and storage , with the intention to sell , QUANTITY of amphetamine . The applicant was sentenced to DATE in prison . Further , the court ordered his expulsion from GPE and issued a prohibition on his return . When fixing the applicant \u2019s prison sentence , the court had regard to the detriment suffered by him on account of the expulsion .","The public prosecutor appealed against ORG judgment and the applicant appealed against the ORG judgment .","ORG ( PERSON hovr\u00e4tt ) joined the CARDINAL cases and gave judgment on DATE . Reversing the judgment of ORG , it found the applicant guilty of the narcotics offence committed in DATE . It upheld the judgment of ORG of GPE in regard to the finding of guilt , the expulsion order and the prohibition on return . Having regard to the expulsion order , it sentenced the applicant to a total of CARDINAL years\u2019 imprisonment .","On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal .","In DATE , at his own request , the applicant lost his NORP citizenship .","According to a medical certificate issued on DATE by ORG , a licensed psychologist at FAC , the applicant had mental problems due to the expulsion order and had expressed the intention not to commit any crimes in the future . S.A. expressed that , with increased age , criminal activities tend to decrease .","On several occasions thereafter the applicant requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . All his requests were denied . The last decision was taken by the Government on DATE .","The applicant was released on probation on DATE and was expelled from GPE on DATE . His wife left GPE and joined him soon thereafter .",""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77502","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2006,"docname":"IVANOV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by PERSON , ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant initiated proceedings before ORG of GPE against his former employer , a private company , for reinstatement and payment of salary for the period of unemployment .","By judgment of DATE ORG reinstated the applicant and ordered that the employer should pay him arrears . By final judgment of DATE GPE increased the amount of arrears to be paid to the applicant and upheld the remainder of the judgment .","On DATE the Presidium of ORG , by way of supervisory review , quashed the judgments of DATE and DATE in the part concerning payment of arrears . This issue was accordingly to be examined anew .","ORG received the case - file in DATE and fixed the first hearing for DATE during which the applicant amended his claims . The following hearing , listed for DATE , was adjourned because the parties defaulted and the following hearing was thus scheduled for DATE , taking into consideration the DATE vacation period . In DATE the applicant again amended his claims , now also seeking compensation for non - pecuniary damage .","On DATE ORG , upon the applicant \u2019s request , adjourned the proceedings and ordered an expert opinion . The proceedings were resumed in DATE .","CARDINAL hearings were fixed DATE and DATE . Of those CARDINAL hearing was adjourned because the respondent defaulted and CARDINAL hearings were adjourned in order to obtain additional evidence and an expert opinion . During hearings in DATE the applicant amended his claims .","By judgment of DATE ORG dismissed the applicant \u2019s claims . The judgment was quashed on appeal on DATE and the case concerning the payment of arrears and non - pecuniary damage returned to ORG for re - examination . The first hearing was fixed for DATE .","The following CARDINAL hearings listed DATE and DATE were adjourned , CARDINAL of them due to the respondent \u2019s absence and CARDINAL because the applicant was ill .","On DATE another presiding judge was assigned to the case . The following hearing , listed for DATE , was adjourned because the new judge participated in other unrelated proceedings .","In DATE ORG , upon the applicant \u2019s request , stayed the proceedings and ordered an additional expert opinion . On DATE the expert notified the court that the opinion had not been prepared because the fees for preparing such an opinion had not been paid . ORG informed the applicant that he should bear the expenses of the expert work . In DATE the expert returned the case - file to the court as the applicant had not paid the fees .","In DATE the applicant successfully asked ORG to resume the proceedings . A hearing was fixed for DATE .","By judgment of DATE ORG dismissed the applicant \u2019s claims once again . On DATE GPE quashed that judgment in the part concerning the compensation for non - pecuniary damage , remitted this matter for a fresh examination and upheld the remainder of the judgment .","In DATE the case - file was returned to ORG and a new presiding judge was assigned to the case . A hearing was fixed for DATE , however , it was adjourned due to the respondent \u2019s absence . The hearing was thereafter scheduled for DATE .","By judgment of DATE ORG of GPE awarded the applicant MONEY as compensation for non - pecuniary damage . That judgment was upheld on appeal on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107016","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2011,"docname":"CASE OF STANIMIROVI\u0106 v. SERBIA","importance":3,"conclusion":"Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Guido Raimondi","text":["The applicant was born in DATE . He is currently serving his sentence in PERSON near GPE in GPE .","On DATE a couple were killed .","On DATE at TIME the applicant was arrested at his home in PERSON . He was taken to Smederevo police station and beaten up by police officers . He then confessed to having participated in the killing .","On DATE the applicant was taken to FAC .","On DATE the applicant was taken to the investigating judge . He met his counsel there , who had meanwhile been appointed by the applicant \u2019s wife , but he was not given the opportunity to talk with him in private . While the applicant confirmed his earlier confession , he complained to the judge that he had been beaten up by the police . The applicant was then examined at ORG . According to the medical report , he had a broken rib and bruises on his chest .","On DATE the applicant was taken to the investigating judge again . His counsel was not present . The applicant met his counsel in private for the first time DATE .","On DATE the applicant was returned to NORP police station and beaten up again . After having collapsed , he was taken to ORG . According to the medical report , he was concussed and had bruises on his head . The investigating judge was informed of the incident .","On DATE the applicant appeared before the investigating judge again . His counsel was not present .","When the applicant was taken to the investigating judge for the fourth time on DATE , his counsel was present and he retracted his confession .","Following a criminal complaint lodged by the applicant \u2019s counsel against unidentified criminal police officers , the public prosecutor obtained a report from NORP police station rejecting the applicant \u2019s allegations . The public prosecutor also obtained the medical reports of CARDINAL and DATE . On DATE the public prosecutor decided not to prosecute and informed the applicant \u2019s counsel of the possibility of starting a subsidiary prosecution within DATE . Counsel did not do so .","On DATE ORG found the applicant and PERSON guilty of murder and sentenced each of them to DATE imprisonment . On DATE ORG quashed that judgment and remitted the case to the first - instance court for a retrial . It instructed the first - instance court to establish whether the applicant had been ill - treated by the police and whether any of his statements were therefore inadmissible .","At a hearing held on DATE , the applicant described his illtreatment in detail and named the alleged perpetrators for the first time . Counsel for PERSON then applied for TIME of that hearing to be sent to the public prosecutor with a view to prosecuting the police officers named by the applicant . The public prosecutor , who was present at the hearing , raised an objection . She emphasised that a criminal complaint in that connection had been dismissed on DATE and that her office had no intention of dealing with the same case again . Counsel for ORG then applied for that prosecutor to be excluded from the proceedings . On DATE the ORG rejected that application , but confirmed that the DATE decision might be reconsidered in view of the new facts , notably the names of the alleged perpetrators .","On DATE the ORG found the applicant guilty of murder and PERSON of incitement to murder and sentenced each of them to DATE imprisonment . It held that the applicant had indeed been beaten at NORP police station . The applicant \u2019s statements made there on DATE were thus declared inadmissible . However , it regarded the statements which the applicant had made before the investigating judge on CARDINAL , DATE and DATE as admissible . The court relied in that regard on an expert report prepared by a team of psychiatrists , stating that the applicant \u2019s fear must have receded by the date of his appearance before the investigating judge .","The applicant appealed against the judgment of DATE . He maintained , among other grounds of appeal , that the admission of the statements which he had made before the investigating judge in DATE should have also been barred . On CARDINAL DATE ORG upheld the first - instance judgment .","The applicant appealed against the judgment of CARDINAL DATE . He repeated that the admission of the statements which he had made before the investigating judge in DATE should have also been barred . On DATE ORG , in a different formation , upheld the second - instance judgment .","On DATE the applicant lodged a criminal complaint with the public prosecutor against CARDINAL police officers in relation to the events of DATE . On DATE the public prosecutor decided not to prosecute . The reasons for that decision are unknown because the applicant was not informed thereof and the entire file was allegedly destroyed in DATE ( that is , DATE after the decision not to prosecute ) .","In DATE both the applicant and his counsel applied for the reopening of the criminal proceedings described above . On DATE ORG rejected both applications . On DATE ORG upheld the decision of CARDINAL DATE .","The Criminal Code DATE ( Official Gazette of GPE nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL\/CARDINAL , DATE , CARDINAL , and ORG nos . CARDINAL , CARDINAL , FAC , FAC , CARDINAL\/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL , CARDINAL and CARDINAL ) was in force until DATE . The relevant Articles read as follows :","\u201c ( CARDINAL ) Any person acting in an official capacity who uses force or threat ... in order to extort a confession or another statement from an accused , a witness , or another person , shall be punished with imprisonment of DATE .","( CARDINAL ) If extortion is aggravated by serious violence or results in particularly serious consequences for an accused in criminal proceedings , the offender shall be punished with imprisonment of DATE . \u201d","\u201c Any person acting in an official capacity who ill - treats , insults or humiliates another , shall be punished with imprisonment of DATE . \u201d","The Code of Criminal Procedure DATE ( Official PERSON of GPE nos . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL and ORG nos . CARDINAL , CARDINAL\/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL\/CARDINAL ) entered into force on DATE . Most criminal offences ( including those mentioned above ) are subject to public prosecution , but some minor offences are only subject to private prosecution . Pursuant to LAW , the public prosecutor must prosecute when there is sufficient evidence that a certain individual has committed a criminal offence which is subject to public prosecution . LAW provides that when the public prosecutor decides not to prosecute such an offence because of lack of evidence , the victim of the offence may nevertheless start a subsidiary prosecution within DATE from the notification of that decision .","The Code of Criminal Procedure DATE , which was in force until DATE , contained similar provisions ( see Articles DATE and CARDINAL thereof ) .","NORP In accordance with LAW , as amended in DATE , the reopening of a criminal trial may be sought where ORG or an international court has found that the convicted person \u2019s rights have been breached in the trial ."],"violated_articles":["3","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4552","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1999,"docname":"VALMONT v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The first applicant , PERSON , born in DATE , is a NORP citizen , currently residing in the GPE . The second applicant is his wife , PERSON , who was born on DATE and is a NORP citizen resident in ORG , GPE . The applicants are represented before the ORG by Mr PERSON , a solicitor practising in ORG . The facts of the case , as submitted by the parties , may be summarised as follows .","A.","","The first applicant arrived in GPE on DATE . When he arrived , he had the status of a citizen of GPE and the Colonies ( PERSON ) by virtue of section CARDINAL of LAW DATE , because the GPE was a NORP colony at the time of his birth . He was given leave to enter as a work permit holder for a period of DATE . When the GPE became independent on CARDINAL DATE , he lost his ORG status and became a citizen of the GPE only . However , since the GPE remained in the ORG , he continued to hold the status of GPE citizen , which status he retains .","","The first applicant met the second applicant , who is NORP , in DATE . They started to live together as man and wife and on DATE their twin children , Roseanne and PERSON , were born . On DATE the couple married , and on DATE the first applicant was granted indefinite leave to remain in GPE .","","On DATE , the first applicant returned to the GPE to attend to family affairs due to his father \u2019s illness . On DATE he returned to GPE and on DATE he left for the GPE again . On DATE he returned to GPE and on DATE went back to the GPE .","The first applicant then suffered a series of health and employment problems and found it difficult to save enough money for his flight back to GPE . He and his wife did , however , keep in contact , and he also kept in contact with his children . The first applicant \u2019s father died in DATE .","On DATE , the first applicant arrived in GPE . The second applicant had come to meet him at the airport . The first applicant told the immigration officer who interviewed him that he sought admission as a visitor for DATE and that he intended to take employment on a farm owned by a friend . In addition , he told the immigration officer that he had a girlfriend in the GPE and to the customs officer he referred to that person as his \u201c wife \u201d . The immigration officer refused him leave to enter as a visitor because he was not satisfied that the first applicant intended to stay for the stated period since he had been unemployed in the GPE and he intended to work in GPE .","Although the first applicant did not seek entry as a returning resident at the time , the immigration officer and the chief immigration officer who authorised the decision to refuse leave to enter considered his application on that basis and concluded that he did not qualify as a returning resident since he had not been resident in GPE within DATE . Moreover , according to ORG there was no evidence that there had been any intervening devotion between the applicant and his family in GPE . Arrangements were made for his removal on DATE .","The first applicant applied to ORG for leave to apply for judicial review of the decision to refuse leave to enter . In the application the point was raised that he should be considered as someone having the right of abode in GPE under the Immigration Act DATE ( \u201c the DATE LAW ) . However , it was pointed out that under LAW CARDINAL(CARDINAL ) of LAW , as amended by LAW DATE ( \u201c the DATE LAW ) , only a female GPE citizen who was married to a NORP citizen would have the right of abode and that a male commonwealth citizen who was married to a NORP citizen did not . In addition , it was said that given that the case involved issues arising under LAW in conjunction with LAW , the Secretary of ORG should have exercised his discretion in favour of protecting the relevant Convention rights .","On DATE the court refused leave to apply for judicial review on the grounds that the Secretary of ORG had exercised his discretion properly .","The first applicant made a renewed application for leave to apply for judicial review to ORG , raising the same points . On DATE ORG refused leave on the grounds that the facts of the case were not such as to suggest that the discretion should have been exercised in favour of the applicant and that the Secretary of ORG had acted lawfully since he had considered all material factors before him and had exercised his discretion reasonably . In connection with the argument that the Secretary of ORG had failed properly to exercise his discretion as he had not taken full account of LAW considerations , ORG referred to the case of ex parte PERSON ( [ DATE ] CARDINAL AC CARDINAL ) and a line of subsequent decisions , including NORP v. ORG ex parte ORG QB CARDINAL ) .","The first applicant was deported to the GPE on DATE .","","B. Relevant domestic law","DATE , section CARDINAL of LAW DATE was applicable . This section stated ( as relevant ) :","\u201c ( CARDINAL ) A person is LAW to have the right of abode in GPE if \u2013","[ CARDINAL categories , ( a ) \u2013 ( b ) , none of which applied to the applicant ]","( CARDINAL ) A woman is under this LAW also to have the right of abode in GPE if she is a GPE citizen and either \u2013","( a ) is the wife of any such citizen of GPE as is mentioned in subsection ( CARDINAL)(a ) , ( b ) or ( c ) above or any such GPE citizen as is mentioned in subsection ( CARDINAL)(d ) ; or","( b ) has at any time been the wife \u2013","( i ) of a person then being such a citizen of GPE citizen ; ... . \u201d","On DATE , LAW DATE ( \u201c the DATE LAW ) came into force . LAW replaced the concept of \u201c citizenship of GPE and Colonies \u201d with various categories of citizenship , including \u201c NORP citizenship \u201d . It also prospectively removed the distinction between men and women which had been contained in the old section ORG ) of the DATE Act , whilst , however , retaining the right of abode for those who had obtained it under any provision in the old section CARDINAL , including subsection CARDINAL ) , which applied only to women . The new section CARDINAL , which is still in force , provides , so far as is material :","\u201c ( CARDINAL ) A person is LAW to have the right of abode in GPE if \u2013","( a ) he is a NORP citizen ; or","( b ) he is a ORG citizen who \u2013","( i ) immediately before the commencement of LAW DATE was a GPE citizen having the right of abode in GPE by virtue of section CARDINAL ) or section CARDINAL(CARDINAL ) of this LAW as then in force ; and","( ii ) has not ceased to be a ORG citizen in the meanwhile . \u201d","A person who does not have the right of abode requires leave to enter GPE . At all material times , a person who , like the first applicant , had been granted indefinite leave to remain and had then left GPE could be permitted to return as a \u201c returning resident \u201d provided he was not absent from GPE for a period of DATE ( Statement of Changes in Immigration Rules , ORG CARDINAL , paragraphs CARDINAL and CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68564","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2005,"docname":"W. AND OTHERS v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicants , whose particulars appear in the appendix , were represented before the ORG by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","The applicants had originally served in the Police . On termination of their service they became entitled to a special DATE allowance for time served ( pr\u00edspevok za slu\u017ebu ) pursuant to section CARDINAL et seq . of ORG in ORG ( Law no . PERSON . , as amended ) . The allowance was paid to them by ORG ( \u201c the NORP \u201d ) of ORG ( \u201c the Ministry \u201d ) and its amount was calculated as a percentage of the applicants ' DATE salary at the time of the termination of their service . The percentage depended on the number of DATE served . Under section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL\/CARDINAL Coll . the entitlement to the allowance expired once the officer in question recommenced \u201c service \u201d . The term \u201c service \u201d was understood to include also service in ORG ( PERSON informa\u010dn\u00e1 slu\u017eba - \u201c the SIS \u201d ) . It was the duty of the officer receiving the allowance to report the recommencement of \u201c service \u201d to the ORG within DATE .","At various dates in DATE and DATE the individual applicants started to work for the ORG . They were subject to an order of the Director ( \u201c the Director \u201d ) of the ORG no . CARDINAL\/CARDINAL which forbade them to report the recommencement of their \u201c service \u201d to the ORG so that their affiliation with the ORG would be concealed .","The applicants thus continued receiving the allowance from the ORG ( \u201c the paid allowance \u201d ) . At the same time they were receiving a salary from the ORG . The ORG was however withholding a part of this salary ( \u201c the withheld salary \u201d ) in an amount equal to the paid allowance . The applicants understood that the ORG would transfer the withheld salary to the ORG budget .","At various dates in DATE the applicants ' service in the ORG terminated and the latter reported the termination to the ORG .","The ORG subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title . The applicants unsuccessfully challenged the decision before the ORG , accepted the debt and commenced paying it in instalments .","The applicants then lodged demands with the ORG for repayment of the withheld salary . As their demands were not met , they lodged a claim with GPE ORG ( ORG s\u00fad ) and also sought interest for late payment of the principal amount .","In several separate decisions taken DATE ORG found that it had no jurisdiction to deal with the applicants ' claims against the ORG and that the body to determine the matter was the Director . ORG based its finding on sections CARDINAL ( CARDINAL ) , CARDINAL and CARDINAL et seq . of ORG in the Police , the ORG , ORG and ORG ( Law no . DATE . , as amended ) and section CARDINAL ( b ) of the LAW on ORG ( PERSON n. CARDINAL\/CARDINAL Coll . , as amended ) . ORG thus referred the actions under LAW of ORG to the ORG for a determination by its Director and discontinued the judicial proceedings in their respect . ORG ( PERSON s\u00fad ) upheld the decision on appeal .","On numerous occasions DATE the applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests . Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them .","In DATE the ORG transferred an amount equal to a major part of the withheld salary of the applicant PERSON to his bank account .","At various dates in DATE the ORG informed the remaining CARDINAL applicants that the ORG had transferred an amount of money equal to the part of their withheld salary to the ORG . In substance this amount was identical to the paid allowance . The ORG further informed these applicants that the part of the paid allowance which they had already repaid in the meantime would be returned to them .","LAW CARDINAL governs the administrative judiciary . In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under LAW ) CARDINAL of that LAW and administrativelaw appeals under LAW of that LAW . From DATE the relevant provisions of this LAW were amended by PERSON no . PERSON . in that administrative tribunals also have the jurisdiction to review the \u201c official conduct \u201d of public administration authorities . Law no . PERSON . further amended the provisions of this LAW by defining detailed rules concerning actions against the inactivity of authorities of public administration . These rules are laid down in a new LAW and entered into force on DATE .","By virtue of LAW the notion of \u201c official conduct \u201d also includes inactivity of the administrative authority concerned .","Pursuant to LAW administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies .","Under LAW in conjunction with LAW t any natural or legal person who alleges that an authority of public administration is not pursuing a matter , contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed timelimit which can not be longer than DATE . Under Article CARDINALu a failure to comply with the order can be sanctioned by a fine of CARDINAL NORP korunas .","In its judgment ( rozsudok ) of DATE ( file no . CARDINAL S\u017e CARDINAL ) ORG found that ORG had been inactive in a set of administrative proceedings and ordered that the ORG give a final decision in the matter within DATE from delivery of its judgment .","In a resolution ( uznesenie ) of DATE ( file no . CARDINAL S CARDINAL\/CARDINAL ) PERSON found that ORG wrongfully failed to determine the plaintiff 's objections in land adjustment proceedings which were conducted before that office . ORG ordered that ORG determine the objections within DATE and awarded the plaintiff reimbursement of her costs .","The right to protection of a person 's dignity , honour , reputation and good name is guaranteed by LAW . of LAW . According to LAW any natural person has the right to protection of his or her personal integrity , in particular his or her life and health , civil and human dignity , privacy , name and personal characteristics .","Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction ( LAW ) .","LAW provides that in cases when the satisfaction obtained under LAW is insufficient , in particular because a person 's dignity and position in society have been considerably diminished , the injured person is entitled to financial compensation for non - pecuniary damage ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80185","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2007,"docname":"MATULAY v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr R\u00f3bert Matulay , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","On DATE the applicant was apprehended by the police .","On DATE a police investigator accused the applicant and another person of a drugs offence .","On DATE ORG in GPE dismissed the applicant \u2019s complaint against the decision to remand him in custody .","On DATE the Bratislava II ORG dismissed the applicant \u2019s request for release on bail . On DATE ORG dismissed the applicant \u2019s complaint against that decision .","On DATE the Bratislava II ORG extended the applicant \u2019s detention until DATE .","On DATE the applicant was questioned by the police investigator . He confessed to the offence . The applicant expressed his regret and applied for release .","On DATE a public prosecutor informed the applicant that she had filed an indictment against him . In a separate letter of the same date the public prosecutor stated , in reply to the applicant \u2019s complaint , that the police investigator had not submitted to her the applicant \u2019s request for release of CARDINAL DATE . The public prosecutor notified the Bratislava II ORG thereof .","On DATE the Bratislava II ORG returned the case to the public prosecutor as , due to procedural shortcomings , the applicant had not been able to study the case file in an appropriate manner . ORG further decided that the applicant should remain detained on remand .","The applicant filed a complaint arguing that ORG had not decided on his request for release of DATE .","On DATE ORG in GPE quashed the firstinstance decision of DATE . ORG found that ORG had violated several provisions of LAW in that ( i ) a public prosecutor had attended the court meeting held in camera on DATE , and ( ii ) the presiding judge had not been entitled to deal with the applicant \u2019s case as he had earlier decided on his detention . ORG also noted that ORG had not decided on the applicant \u2019s request for release of DATE .","On DATE the Bratislava II ORG returned the case to the public prosecutor . It also examined the applicant \u2019s request for release and decided that the applicant should remain in custody .","On DATE the applicant filed a complaint . He requested that he should be released .","On DATE ORG in GPE dismissed the applicant \u2019s complaint . It found that ORG had rightly returned the case to the public prosecutor as the applicant \u2019s procedural rights had been violated at the previous stage of the proceedings . There were justified reasons to fear the applicant \u2019s re - offending in case of his release . In particular , the applicant was unemployed and he could commit drugs offences in order to earn his living .","On DATE a new indictment was filed against the applicant .","On DATE ORG ordered that the applicant be released . The evidence available indicated that the applicant had not played an important role in drug dealing . As a result of his detention his contacts with persons involved in such criminal activities had been cut . On DATE the applicant was released from detention .","ORG scheduled the hearing in the case for DATE and DATE .","On DATE the applicant informed the ORG , at the request of its Registry , that ORG had convicted the applicant of unauthorised production , possession and dealing in drugs on DATE . The court imposed a CARDINAL years\u2019 prison sentence on both the applicant and his co - accused . The judgment became final in the applicant \u2019s respect as neither he nor the public prosecutor had appealed .","The co - accused appealed . The court of appeal modified the first - instance judgment in that it imposed a conditional prison sentence on him .","On DATE the applicant filed a complaint with ORG . He referred to the conduct of the proceedings by LAW ORG and ORG in GPE and alleged a violation of his rights under LAW and CARDINAL of the LAW in that his application for release had not been examined speedily and that the length of his detention was excessive . The applicant invoked LAW with reference to the authorities\u2019 failure to decide on his application for release and to procedural shortcomings in the proceedings at the preliminary stage . Finally , the applicant alleged a violation of LAW ) of the LAW and its constitutional equivalent in that his right to defend himself had not been respected at the pre - trial stage .","On DATE ORG declared admissible the applicant \u2019s complaint under LAW and CARDINAL and LAW related to the examination by ORG in GPE of the application for release of CARDINAL DATE .","ORG rejected the remainder of the applicant \u2019s complaint . It held that it could not review the conduct of the proceedings by ORG as it had been open to the applicant to seek redress in that respect before ORG in GPE . As to the alleged violation of the applicant \u2019s right to have adequate time and facilities for the preparation of his defence , ORG noted that the case had been returned to the public prosecutor who had been ordered to eliminate the shortcomings complained of .","The decision on admissibility of the applicant \u2019s complaint was served on his representative on DATE .","On DATE ORG found that ORG in GPE , when dealing with the applicant \u2019s request for release of CARDINAL DATE , had violated the applicant \u2019s right under LAW and CARDINAL of the LAW .","The decision stated , in particular , that ORG had taken DATE to deal with the applicant \u2019s complaint against ORG decision of CARDINAL DATE to dismiss his request for release filed on DATE . Such a period was excessively long . The applicant had been prevented from filing fresh requests for release until a final decision on his request of CARDINAL DATE had been delivered . In ORG view , there had been no violation of LAW in that context as the relevant issue , i.e. delays in proceedings on the application for release , was covered by a special provision , namely LAW .","When deciding on the applicant \u2019s request for release on DATE ORG had not taken into account numerous and substantial procedural shortcomings which had occurred at the pre - trial stage and in the proceedings before the first - instance court . It had thereby violated the applicant \u2019s right under LAW and CARDINAL of the LAW to be released in case of unlawful detention .","ORG quashed ORG decision of DATE and returned the case to the latter court for further proceedings . It awarded SKK CARDINAL ( the equivalent of CARDINAL at that time ) to the applicant in respect of the violation of his right to a speedy review of his request for release .","ORG held that the finding of a violation of the applicant \u2019s right to be released taken together with its decision to quash ORG decision of DATE provided appropriate just satisfaction to the applicant . Finally , ORG ordered ORG to reimburse the applicant \u2019s costs incurred in the constitutional proceedings .","The following provisions of the LAW are relevant in the present case .","LAW provides that individuals can only be prosecuted or deprived of liberty for reasons and by means set out in the law . Under paragraph CARDINAL of Article CARDINAL , a person can be remanded in custody only upon a decision given by a court , and for reasons and for a period of time set out in the law .","Article CARDINAL is incorporated in the Seventh Section of the LAW entitled \u201c Right to judicial and other legal protection \u201d . LAW CARDINAL provides for the right to a hearing by a judge appointed in accordance with the law . Paragraph CARDINAL of Article CARDINAL guarantees to everyone the right to a hearing without unjustified delay , to have one \u2019s case heard in his or her presence and to comment on the evidence taken ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88919","languageisocode":"ENG","respondent":"MDA","branch":"ADMISSIBILITY","date":2008,"docname":"SALINSCHI v. MOLDOVA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr V. Grosu .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a private company ( \u201c T. \u201d ) bought from the ORG an industrial building . The contract was authenticated by a notary on DATE and was registered with ORG ( which later became known as ORG ( \u201c the ORG \u201d ) ) on DATE .","In DATE that building was sequestrated by ORG ( \u201c the ORG \u201d ) in settlement of debts to the ORG . It was then offered for auction .","On DATE the applicant succeeded in that auction . In accordance with the auction conditions , the applicant paid the price of the building ( CARDINAL NORP lei , equivalent to QUANTITY at the time ) and signed the \u201c Contract for the purchase of goods sold at auction \u201d on DATE . According to clause CARDINAL of the contract , the property right over the object sold at the auction was transferred to the buyer from the moment of signing the \u201c act for the transfer of goods \u201d .","The parties also signed the minutes of the auction , which provided , in section ( CARDINAL ) , the obligation of the buyer to register the contract of sale with ORG ( which later became known as ORG ( \u201c the ORG \u201d ) ) . In accordance with section ( CARDINAL ) of the minutes , the seller undertook to conclude the contract for the sale of the item \u201c in accordance with the law , the auction conditions and TIME \u201d .","According to the applicant , in order to observe the requirements of sections ( CARDINAL ) and ( CARDINAL ) of the auction TIME , the applicant and an ORG representative appeared before a notary in order to have the contract authenticated . The notary refused , however , to authenticate the contract because the seller ( the ORG ) had not presented documents confirming that the building had belonged to ORG and that the ORG had the right to confiscate it . No evidence was submitted to support this claim . However , the applicant submitted a letter from a notary dated DATE , according to which registration of his property right was impossible in view of certain deficiencies in the contract and the absence of several documents , which had to be produced by the seller .","The applicant requested the ORG to issue the relevant documents and to have the contract authenticated by a notary . On DATE the applicant and ORG representatives signed an \u201c act for the transfer of goods \u201d .","On DATE T. bought from GPE a plot of land dependent on the building bought by the applicant at the auction .","The applicant requested the ORG to register his title to the building on the basis of the contract of sale . On DATE the ORG refused registration because the contract had not been authenticated by a notary as required by \u201c civil law \u201d .","The applicant claims that he has no access to his building . His request to T. to vacate it and to allow him free possession was allegedly ignored .","On DATE the ORG repeatedly sent the ORG a copy of the sequestration order concerning the building belonging to T.","On DATE the ORG informed the applicant that no real property was registered as belonging to T. on DATE .","On DATE the ORG refused to issue the applicant with any additional documents or to participate in the authentication of the contract before a notary , stating that according to the contract of sale , ORG no . CARDINAL and PERSON no . CARDINAL ( see below ) the applicant had become the owner of the building from the date when he signed the \u201c act for the transfer of goods \u201d ( i.e. DATE ) . The ORG considered that it had fulfilled its part of the contract and had acted in accordance with the law .","On DATE the ORG rejected another request by the applicant , following which he initiated administrative proceedings against it .","On DATE the ORG left the applicant \u2019s claim unexamined because it was not subject to administrative jurisdiction . On DATE ORG quashed that judgment and ordered a full re - hearing of the case .","On DATE the ORG rejected the applicant \u2019s claims as unfounded . The court found that the ORG had acted in accordance with the law and duly transmitted the rights in the property to the applicant when they both signed LAW for the transfer of ORG on DATE . The court added that , according to the law , the applicant \u2019s property right could be registered based on the auction results and the contract concluded with the ORG , without any obligation for further formalities between the parties . It considered the refusal of the ORG to register the applicant \u2019s right to be a separate issue that could be examined in other court proceedings , which the applicant refused to initiate .","On DATE ORG upheld that judgment , basing itself on essentially the same arguments . It added that the law expressly mentioned the rights of a successful bidder at auction , and that there was no need to register the contract with a notary . The judgment was final .","The applicant requested a review of that judgment . On DATE the same panel of judges rejected that request .","In response to a letter from the applicant , the ORG replied on DATE that T. had never challenged the ORG \u2019s confiscation of the building which had been sold at the auction .","The relevant provisions of LAW in force at the relevant time read as follows :","\u201c LAW","The owner may request the removal of any impediment to the enjoyment of his rights even if this impediment is not related to loss of possession .","Article CARDINAL","Contracts for the sale of real estate belonging to natural and legal persons shall be authenticated by a notary and registered within DATE with the [ ORG ] . \u201d","The relevant provisions of the PERSON on the real estate register no . CARDINAL ( DATE ) read as follows :","\u201c Section CARDINAL","... ( CARDINAL ) The documents submitted for the registration of a title must ... , in the cases provided for by law , be authenticated by a notary and sealed .","... ( CARDINAL ) The following shall not be accepted as a basis for registration of a title :","a ) documents which do not correspond to the requirements under ( CARDINAL)-(CARDINAL ) above ; ... \u201d","The relevant provision of the regulation \u201c Regarding the manner of sequestration and sale of goods \u201d , adopted by Government Decision no . CARDINAL of DATE read as follows :","\u201c After the signing of the sales contract the fiscal authority shall obtain the possession of sequestered goods ... \u201d .","The relevant provisions of the PERSON regarding the manner of forced collection of taxes and other payments no . CARDINAL of DATE read as follows :","\u201c Section PERSON )","( CARDINAL ) After signing the contract of sale at the auction , the fiscal authority shall transmit the sequestered item to the buyer . The property right passes to the buyer from the moment of signing the act for the transfer of goods . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107014","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2011,"docname":"CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 2)","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - award","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The individual applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE and live in PERSON , PERSON , PERSON , GPE , GPE , PERSON , GPE and GPE . They are all members of ORG \u2019s managing council .","The relevant background circumstances are described in detail in paragraphs CARDINAL of the ORG \u2019s judgment in the case of ORG and Others v. GPE ( no . CARDINAL\/CARDINAL , DATE ) .","On DATE a group of CARDINAL supporters of ORG held a meeting at which they resolved to form a non - profit association . They adopted its articles and elected its bodies , including CARDINAL members of its managing council .","Clause DATE ) of the articles , which defined the association \u2019s goals , said , inter alia , that ORG was \u201c a successor and continuer of the national liberation struggle of the NORP nation \u201d , including the \u201c NORP fighters who fell victim to NORP state terrorism and genocide \u201d . Clause CARDINAL ) specified that ORG \u201c recognise[d ] and respect[ed ] the territorial integrity of GPE and its laws and constitution , but only if they [ were ] consonant with international law and international agreements on human rights , fundamental freedoms and GPE rights \u201d . Clauses CARDINAL ) and CARDINAL(CARDINAL ) stated that ORG \u2019s goals included \u201c expressing and defending the civil , national , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) , and of the NORP who live in GPE \u201d and \u201c requesting cultural autonomy status for LOC in order for the assimilation process to be stopped \u201d .","Clause GPE ) to ( CARDINAL ) of the articles provided that to attain its goals ORG would propagate NORP culture and traditions , hold meetings to commemorate historical dates , \u201c nominate NORP for Members of ORG \u201d , petition the government and various international institutions for the \u201c national rights of the NORP \u201d , and organise conferences and seminars .","Clause CARDINAL(CARDINAL ) said that the association would be run and represented by a managing council . According to clause PERSON ) , it would have CARDINAL to CARDINAL members . However , clause CARDINAL ) specified that the first managing council would have CARDINAL members .","On DATE Ilinden applied for registration to ORG . In a judgment of DATE the court refused to register the association . It gave the following reasons :","\u201c The evidence ... shows ... that the activities of the organisation seeking registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation . This is apparent from the association \u2019s main goals ... and the means for attaining them ...","Their wording ... shows their political character . ... The organisation says that it is a successor of and continues the \u2018 national liberation struggle of the NORP nation\u2019 , including the \u2018 NORP fighters who fell victim to NORP State terrorism and GPE Its articles of association ] specify that [ the organisation ] will respect the territorial integrity of GPE , but only if \u2018 [ it is ] consistent with international law and international agreements on human rights , fundamental freedoms and the rights of GPE ; [ that the organisation ] will \u2018 express and safeguard the civil , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) and of the NORP who live in GPE The articles also ] insist that \u2018 the process of assimilation in LOC must be stopped\u2019 . Obviously , the aim is to distort the historical truth , to ignore the NORP character of certain geographical regions [ and ] to provoke overt opposition by CARDINAL part of the population to another . This also threatens the territorial integrity of the country , whereas Article CARDINAL \u00a7 CARDINAL of [ the LAW ] prohibits organisations from engaging in such activities .","Even if , despite [ what was found ] above , it is assumed that the activities of [ Ilinden ] do not run counter to [ the LAW ] , its LAW provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties . The political character of the aims [ of ORG ] is clearly shown by [ its articles of association ] , while the [ applicable law ] provides that organisations seeking to engage in political , tradeunion or religious activities must be regulated in a separate statute .","All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal . It can not be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community . ... The realisation of the true aims [ of ORG ] would no doubt be at the expense of the unity of the NORP nation [ and ] the sovereignty and the territorial integrity [ of the country ] , which is declared inviolable by LAW . \u201d","Ilinden appealed to ORG , arguing , inter alia , that it was not threatening the country \u2019s sovereignty and territorial integrity , nor trying to distort the \u201c historical truth \u201d . The refusal to register it was in breach of LAW ( see paragraph CARDINAL below ) , as it was based on the fact that it expressed views which differed from the officially sanctioned ones . It was not proposing to engage in activities characteristic solely of a political party either .","On DATE ORG upheld the lower court \u2019s judgment . It held , in so far as relevant :","\u201c ORG ... received an application by the managing council of the newly formed non - profit association [ Ilinden ] , requesting it to be registered ... in the special register kept by the court ... In [ the impugned judgment ORG ] refused to register the association ... , holding that [ Ilinden ] \u2019s goals and the means for attaining them have a political character and run counter to the spirit of [ the DATE LAW ] and the provisions of the [ LAW ] . This court shares those conclusions .","The evidence submitted alongside the application for registration , namely the articles of the nonprofit association [ Ilinden ] , TIME of its founding meeting , held on DATE , a list of the founders , CARDINAL sample signatures of the members of the managing council , notarised and expressly stating that these persons wish to take part in the association \u2019s management and representation , and their criminal records , shows that a founding meeting was held on DATE . It was attended by CARDINAL individuals , who unanimously resolved to form a nonprofit association named [ Ilinden ] , adopted its articles and elected a managing council consisting of CARDINAL members . However , the wording of the articles \u2013 clauses CARDINAL and CARDINAL , [ which set out ] the association \u2019s goals and the means for attaining them \u2013 reveal their political character , which is impermissible for a nonprofit association . This follows from the interpretation of paragraph CARDINAL of [ the DATE LAW ] , which provides that organisations intending to carry out political , tradeunion or religious activities must be regulated by separate statutes . For instance , in clause CARDINAL ) , ( CARDINAL ) [ and ] ( CARDINAL ) of its articles the organisation proclaims itself as being a successor of and continuing the \u2018 national liberation struggle of the NORP nation\u2019 , including \u2018 the NORP fighters who fell victim to NORP State terrorism and PERSON , declares that \u2018 it will express and defend the civil , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) and of the NORP living in ORG , insists that \u2018 the assimilation process in GPE must ORG , etc . All those goals set by the newly formed organisation are directed towards distorting the historical truth and ignoring the NORP character of certain geographical regions , with a view to stirring overt confrontation between one group of NORP citizens and another , which imperils both the territorial integrity of the country and the unity of the nation . This is in breach of the imperative rule of LAW of [ the LAW ] which provides that \u2018 organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... are prohibited\u2019 . Moreover , the political goals and the ways of attaining them , set by the organisation in clause CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of its articles , are in breach of paragraph CARDINAL of [ the DATE LAW ] and LAW of [ LAW ] . Apart from that , the founders have elected CARDINAL members of the managing council , in breach of the articles which provide , in clause ORG , that the first managing council will consist of CARDINAL members who will manage and represent the association ( clause CARDINAL ) ) . This was equally in breach of section CARDINAL ) and ( CARDINAL ) in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of [ the DATE LAW ] , because it engenders uncertainty as to the manner of managing and representing the organisation .","In view of the foregoing , this court finds that the newly formed organisation [ Ilinden ] has goals , ways of attaining them and representation which run counter to the provisions of [ the DATE LAW ] . For this reason , it should not be entered on the register of non - profit legal persons kept by [ ORG ] . ... \u201d","On DATE Ilinden appealed on points of law . It argued , inter alia , that , contrary to ORG ruling , its articles , when read properly , showed that it did not intend to participate in political life . Nor was it trying to distort the historical truth \u2013 its aim was to promote it . The refusal to register it violated its right to freedom of association , enshrined in LAW , and was in breach of LAW ( see paragraph CARDINAL below ) . PERSON also contested ORG findings concerning its managing council .","In a final judgment of CARDINAL DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , \u0442\u044a\u0440\u0433\u043e\u0432\u0441\u043a\u0430 \u043a\u043e\u043b\u0435\u0433\u0438\u044f ) ORG upheld ORG judgment in the following terms :","\u201c ORG founded the refusal to register the association on the wording of the articles of association , more specifically clauses CARDINAL and CARDINAL , which show that the goals sought to be attained by the association and the means for their attainment are political in character . LAW ] guarantees freedom of association , but only in line with the requirements of the law . It is not permissible for a nonprofit association to carry out political , tradeunion or religious activities . The assertion in the appeal that [ Ilinden ] does not seek to engage in political struggles is not substantiated . As correctly observed by [ ORG ] , an organisation which proclaims itself as being a successor and continuing the \u2018 national liberation struggle of the NORP nation\u2019 , and its founders as spiritual successors of \u2018 the NORP fighters who fell victim to NORP State terrorism and PERSON has a markedly political character . The [ lower court ] correctly held that an activity consisting in \u2018 safeguarding the social and economic rights of the NORP who live on NORP soil under NORP occupation and of the NORP living in ORG is in breach of LAW of LAW ] , which prohibits organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , or towards the incitement of racial , national , ethnical or religious enmity . But even if [ the court ] were to accept the argument in the appeal that the organisation does not seek to attain goals which run counter to the constitutional order , those goals run counter to the [ DATE LAW ] , as they are characteristic of a political party , not of a nonprofit association . Thus , the alleged violation of LAW ] has not been made out .","The argument in the appeal that the articles of association in reality merely mention the minimum number of members of the managing council , without further restrictions , is unfounded . Clause PERSON ) of the articles enclosed in the case file says that the managing council consists of CARDINAL to CARDINAL members . Clause CARDINAL ) makes special provision for the first managing council and says that it will consist of CARDINAL members serving DATE . That is , clause ORG ) does not merely set a minimum , as claimed in the appeal . For this reason , [ ORG ] correctly found that the imperative rule of section CARDINAL ) and ( CARDINAL ) in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the [ DATE LAW ] has not been complied with \u2013 the manner of managing and representing the organisation is unclear .","For the foregoing reasons , the court is of the opinion that the grounds of appeal have not been made out and that [ the impugned judgment ] should be upheld . \u201d","The relevant provisions of the DATE LAW read :","\u201c The territorial integrity of GPE shall be inviolable . \u201d","\u201c Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties . \u201d","\u201c No one may be persecuted or restricted in his rights because of his views , nor detained or forced to provide information about his or another \u2019s convictions . \u201d","\u201c CARDINAL . Citizens may freely associate .","Organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... and organisations which seek to achieve their goals through violence are prohibited .","The law shall specify the organisations which are subject to registration , the manner of their dissolution and their relations with the ORG . \u201d","Under paragraph CARDINAL of the transitional and concluding provisions of the CARDINAL Non - Profit Legal Persons Act ( \u201c ORG \u0437\u0430 \u044e\u0440\u0438\u0434\u0438\u0447\u0435\u0441\u043a\u0438\u0442\u0435 \u043b\u0438\u0446\u0430 \u0441 \u043d\u0435\u0441\u0442\u043e\u043f\u0430\u043d\u0441\u043a\u0430 \u0446\u0435\u043b \u201d ) \u2013 the LAW which regulates the formation , registration and activities of nonprofit legal persons such as associations DATE organisations which intend to engage in political , trade union and religious activities were to be regulated by separate statutes .","Section CARDINAL ( CARDINAL)(CARDINAL ) of the LAW provides that the names and the offices of the persons who represent the association must be entered in the register . LAW ) and ( CARDINAL ) provide that an association \u2019s articles must set out its managing bodies and the manner of its representation ."],"violated_articles":["11"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4757","languageisocode":"ENG","respondent":"LTU","branch":"ADMISSIBILITY","date":1999,"docname":"GANUSAUSKAS v. LITHUANIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE . At present he is detained at FAC in LOC .","He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","A.","On DATE the applicant was detained on remand in the context of proceedings for cheating . On DATE the Kaunas City District Court convicted the applicant of obtaining property by deception . He was sentenced to CARDINAL years\u2019 imprisonment and ordered to pay compensation . On DATE ORG dismissed the applicant \u2019s appeal against the first instance judgment . On DATE ORG rejected the applicant \u2019s cassation appeal .","By DATE the applicant had completed CARDINAL of his sentence in FAC . As he had been afforded better treatment due to his model behaviour in prison , he requested his conditional release . This was refused , whereupon the applicant brought a successful civil action against the prison administration before ORG for a breach of his rights under LAW . On DATE the court \u201c required \u201d the prison administration to request a criminal court to order the applicant \u2019s conditional release .","This was done on DATE and on DATE ORG ordered the applicant \u2019s conditional release because of his model behaviour in prison . A prosecutor and a prison representative took part at the hearing of DATE . ORG stated that the order for conditional release could be appealed within DATE . On DATE the applicant was released from the prison .","From DATE , several major newspapers printed articles criticising the law enforcement authorities for releasing the applicant on licence . The media alleged inter alia that the applicant had not paid the compensation ordered by the trial courts .","On DATE the Chief Prosecutor of GPE applied to ORG for leave to appeal out of time against the applicant \u2019s conditional release . The prosecutor asserted that the DATE time - limit had not been observed for important reasons . He stated that the prosecutor who had been present before the court on DATE had not informed ORG about the applicant \u2019s conditional release , and that on DATE the Chief Prosecutor of ORG had been in GPE on mission ; therefore no appeal could be lodged in time .","On DATE the ORG reinstated the time - limit by reference to LAW , finding that the prosecution had missed the time - limit for \u201c important reasons \u201d . The court also stressed that the reinstatement of the time - limit \u201c was not contrary to the law \u201d .","On the same date the Chief Prosecutor of GPE lodged with ORG an appeal against the applicant \u2019s conditional release , asserting inter alia that he had not paid the CARDINAL NORP litai ( LTL ) in compensation following his conviction , and that he belonged to a GPE criminal organisation . ORG","On DATE the prosecutor requested the court to suspend the execution of the order for conditional release . On the same date ORG , pursuant to LAW , accepted the prosecutor \u2019s request without hearing the parties . The applicant was arrested in TIME of CARDINAL DATE .","On DATE ORG held a hearing on the prosecution \u2019s appeal against the applicant \u2019s conditional release in the presence of the applicant and his counsel . The applicant requested the court to adjourn the hearing and release him . He also challenged the participation of CARDINAL of the appeal judges . The court dismissed his applications .","On DATE ORG upheld the prosecution \u2019s appeal and quashed the conditional release order on the basis of LAW . ORG found inter alia that the applicant had not paid the CARDINAL LTL in damages ordered at his trial . The court noted that the prosecutor , who had been present before ORG on DATE , had not submitted this information , thereby misleading the first instance court . The appellate court held that domestic law did not oblige the prison administration to recommend the conditional release of a detainee . The decision of CARDINAL DATE was final .","On DATE a civil chamber of ORG , upon a cassation petition of the Acting President of ORG , quashed the decision of DATE , finding that ORG could not \u201c require \u201d the prison administration to request the applicant \u2019s release on licence . ORG held in this connection that LAW gave a discretionary power to the prison administration as to whether or not to request the conditional release of a detainee .","B. Relevant domestic law","Article CARDINAL - CARDINAL of LAW and LAW allows the release on licence of a convicted person before the expiry of the term of imprisonment . The right to order conditional release rests with a court , upon the request of the prison administration . Release on licence of a person sentenced to up to CARDINAL years\u2019 imprisonment can be ordered after completion of CARDINAL of the sentence .","Article CARDINAL - CARDINAL \u00a7 CARDINAL of LAW lays down a period of DATE to appeal against a court order granting or refusing conditional release . Paragraph CARDINAL of this provision provides for the suspension of that order should such an appeal be lodged . Paragraph CARDINAL of the provision permits no further appeal against the decision of the appellate court .","Pursuant to LAW , a time - limit that was missed for an important reason can be reinstated by a court . LAW of this provision provides that , in cases where a decision was appealed out of time , a court on the request of the person lodging the appeal can suspend its execution . ORG"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102750","languageisocode":"ENG","respondent":"SRB","branch":"ADMISSIBILITY","date":2010,"docname":"SIMIC v. SERBIA","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Kristina Pardalos","text":["The applicants , PERSON ( \u201c the first applicant \u201d ) , Mr GPE ( \u201c the second applicant \u201d ) and PERSON ( \u201c the third applicant \u201d ) are all NORP citizens who were born in DATE , DATE and DATE , respectively . The first applicant lives in PERSON and was represented before the ORG by Mr PERSON , a lawyer practising in the same town . The other CARDINAL applicants live in GPE and were represented before the ORG by Mr PERSON , a lawyer practising in the same town . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","Following the financial collapse of numerous banks in GPE , in DATE and DATE the respondent ORG adopted specific legislation accepting to convert the foreign currency deposits in these banks , including the banks here at issue , into a public debt and then went on to set the time - frame ( DATE ) and the amounts , including interest , to be paid back to their former clients . This legislation , inter alia , also explicitly provided that NORP citizens living abroad , i.e. those living outside of the territory of the former ORG , were also entitled to benefit from it .","On DATE CARDINAL the applicant \u2019s father deposited an unspecified amount of NORP PERSON for a fixed period of time with the PERSON , the interest rate having been stipulated at PERCENT DATE .","It would appear that by DATE the applicant \u2019s father had a total of CARDINAL NORP PERSON on the account in question .","After the expiration of the fixed - period deposit contract , in DATE the bank appears to have refused to release his funds or even to apply the interest rate initially stipulated .","On an unspecified date thereafter , the applicant \u2019s father died and the applicant became his sole successor .","Just like his father , however , the applicant was unable to withdraw or otherwise freely use his foreign currency savings .","On DATE the applicant had CARDINAL converted into Government bonds , having in the meantime been paid back a total of CARDINAL in accordance with the said legislation .","There is no information that the applicant had received any payments thereafter .","By DATE the second applicant had a total of MONEY , MONEY , and MONEY deposited for a fixed period of time with the ORG , the interest rate having initially been stipulated at PERCENT DATE . By the same time , the third applicant had deposited a total of MONEY for a fixed period of time with the ORG , the interest rate having initially been stipulated at PERCENT DATE .","On an unspecified date thereafter the bank in question refused to release the applicants\u2019 funds or even to apply the interest rate stipulated .","It would appear that , following the adoption of the relevant legislation , the first applicant converted his foreign currency savings deposited in CARDINAL other banks into public debt in DATE . However , none of the applicants requested the conversion of the foreign currency savings deposited with the ORG .","The relevant domestic law is set out in the ORG \u2019s decision of PERSON ( dec . ) , no . PERSON , DATE , at sections B.CARDINAL and B.CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-112305","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2012,"docname":"CASE OF WALDEMAR NOWAKOWSKI v. POLAND","importance":3,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Non-pecuniary damage - award;Pecuniary damage - reserved (Article 41 - Pecuniary damage)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","The applicant is a veteran of the NORP Resistance during the Second World War and a former professional officer of ORG . His veteran status on the grounds of his involvement in the underground NORP movement during that war was recognised by an administrative decision given on an unspecified date by the Director of ORG .","For DATE the applicant collected antique arms and weapons from the period of the Second World War and earlier .","On DATE and DATE the police searched the applicant \u2019s home and DATE cottage . They confiscated the applicant \u2019s collection which at that time numbered CARDINAL pieces .","On DATE the Director of ORG ( \u201c the Museum \u201d ) in GPE issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure . He stated that the applicant had been cooperating with the ORG as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the ORG . He stated that the applicant \u2019s expertise was highly valued by ORG .","On DATE and CARDINAL DATE the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms .","On DATE the Director of ORG sent a letter to ORG . He stated that the applicant \u2019s integrity and the fact that he was a law - abiding citizen were wellknown . He had been decorated on a number of occasions for his involvement in the NORP Resistance during the Second World War . By accumulating a unique collection of historical weapons , uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of GPE . He had financed this collection himself , at considerable personal sacrifice . The fact that criminal proceedings had been instituted against him had met with general disbelief . It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order . On the contrary , it had played a significant role in teaching younger generations about the history of GPE and about the fight for the country \u2019s independence . The applicant \u2019s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be imposed on him .","On DATE the prosecution ordered that CARDINAL pieces of the collection should be returned to the applicant , relying on an expert opinion prepared for the purposes of the investigation . The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary . On DATE a bill of indictment against the applicant on charges of illegal possession of arms was filed with the ORG .","On DATE the ORG discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms , contrary to Article CARDINAL \u00a7 CARDINAL of LAW .","The court first listed CARDINAL pieces of the applicant \u2019s collection , the oldest of them produced in DATE .","The court noted that the applicant had explained that he had been collecting old arms , mostly memorabilia of the Second World War as well as other older pieces , for DATE . He had previously on numerous occasions made parts of his collection available on loan to various museums . He had been collaborating as an expert in old weaponry with ORG . The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with CARDINAL locks and equipped with an alarm . He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms . He declared his willingness to take such measures also in respect of the remaining pieces .","The court acknowledged that no criminal intent to use the arms to anyone \u2019s detriment could reasonably be ascribed to the applicant . However , he must have known that the possession of arms without a permit was unlawful . He had not availed himself of the possibility of legalising his collection by having recourse to the DATE LAW , devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of GPE to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance .","The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent . It emphasised that the applicant was , at that time , DATE , a war veteran who had fought in ORG and who was a retired professional officer of ORG with no criminal record . He was a lawabiding citizen .","The court observed that the applicant \u2019s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts . The experts had found that it was impossible to use most of the pieces as weapons , but that some of them could be made to work again ( \u201c ze znacznej wi\u0119kszo\u015bci egzemplarzy broni nie by\u0142o mo\u017cliwe oddanie strzalu , niemniej jednak z cz\u0119\u015bci egzemplarzy broni mo\u017cliwym by\u0142o oddanie strza\u0142u , jak r\u00f3wnie\u017c mo\u017cliwym by\u0142o przywr\u00f3cenie cech u\u017cytkowych broni \u201d ) .","The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant , referring to LAW paragraph CARDINAL ( CARDINAL ) of LAW . At the same time , the court decided to apply LAW in conjunction with its LAW and to confiscate CARDINAL pieces of the collection .","The court , explaining why it decided to avail itself of its discretionary power to confiscate the entire collection , stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value . It noted that the collection should , because of its historical interest , be handed over to an institution capable of securing appropriate storage and display conditions for it .","NORP The applicant and the prosecution appealed . The applicant essentially challenged the confiscation measure .","By a decision of CARDINAL DATE ORG upheld the first - instance decision . It fully endorsed the reasoning of the lower court . It further noted that the confiscation of the collection should not lead to its destruction . The ORG authorities should be well aware of the historical value of the collection ( \u201c organy pa\u0144stwa DATE zdawa\u0107 sobie spraw\u0119 z ... warto\u015bci historycznej zabezpieczonych przedmiot\u00f3w \u201d ) .","On DATE the ORG invited ORG to indicate whether they would be interested in the applicant \u2019s collection . On DATE the Director of the ORG replied , indicating that the ORG wished to take certain pieces selected by ORG , the ORG \u2019s expert . On DATE the court authorised the transfer of these pieces to the ORG and on DATE they were transferred .","On DATE the same court requested ORG in GPE , the Regional Curator for Monuments ( PERSON Ochrony Zabytk\u00f3w w PERSON , PERSON ) , to indicate the name of a cultural institution which would accept the remainder of the collection . A number of cultural institutions expressed their interest , including ORG . ORG also expressed interest in the remainder of the collection covered by the forfeiture decision . The Regional Curator for Monuments gave a positive opinion in this regard . This part of the collection is currently being transferred to the ORG .","\u201c CARDINAL . GPE shall protect property and a right to inherit .","Expropriation is allowed only in the public interest and against payment of just compensation . \u201d","Article LAW reads :","\u201c Freedom of the person shall be legally protected .","Everyone shall respect the freedoms and rights of others . No one shall be compelled to do anything which is not required by law .","Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","Under its settled case - law , ORG has jurisdiction only to examine the compatibility of legal provisions with the LAW and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases ( e.g. SK CARDINAL\/CARDINAL , DATE ; Ts CARDINAL , DATE ; Ts CARDINAL\/CARDINAL , DATE ) .","Article CARDINAL paragraph CARDINAL(CARDINAL ) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible .","Article CARDINAL of the Criminal Code provides that where the seriousness of a criminal offence is negligible , the court may order confiscation , within the meaning of Article CARDINAL of that Code , of objects connected with the offence .","Article CARDINAL paragraph CARDINAL of the Criminal Code penalises possession of weapons or ammunition without a licence ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58223","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF GUILLEMIN v. FRANCE (ARTICLE 50)","importance":2,"conclusion":"Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"Franz Matscher;R. Pekkanen","text":["In a judgment of CARDINAL DATE the NORP tribunal de grande instance ruled as follows :","The application against FAC","The town council was certainly the instigator of the expropriation \u2013 subsequently declared unlawful \u2013 that gave rise to the damage sustained by the plaintiffs , and it has already been held to be liable in the judgment of DATE .","The amount of this damage must therefore now be assessed and the town council ordered to pay the resulting sums .","As regards the value of the building and the damage resulting from loss of enjoyment , it should be remembered that as all damage is to be assessed as at the date on which the assessment is made , the value of the building must be assessed as at the date of this judgment .","But the interference with enjoyment must be assessed in relation to the income that the property would have brought in from the date of dispossession to the present day , and that presupposes that the land in question should also be valued at the date of dispossession , that is to say in DATE .","\u2026","The total value of the property , including the repurchase allowance , is therefore ORG CARDINAL ; this figure was arrived at by the expert in DATE but , in the absence of any significant [ change ] since then , it will be adopted as being still valid at the date of this judgment .","The plaintiffs should therefore be awarded the sum of FRF CARDINAL in respect of the value of the property of which they have been dispossessed .","The damage resulting from the loss of this property will be assessed on the basis of PERCENT \u2013 the average rate of return DATE of the value of the property in DATE , with DATE indexation , as the expert recommended , that method of calculation and rate corresponding to the reality of the situation as it has developed since DATE .","\u2026","And the damage resulting from interference with enjoyment will thus be assessed at ORG CARDINAL,CARDINAL in all .","Apart from the foregoing damage , the plaintiffs have indisputably sustained damage distinct from the pecuniary or material damage through being deprived of a property that they were entitled to wish to keep and on account of the endless difficulties they encountered [ over ] DATE in seeking compensation whose principle could not be in doubt .","This non - pecuniary damage will be compensated by the award of a sum of ORG CARDINAL , an assessment which can not be in any way affected by the judgment of ORG .","Interest shall be payable on the totality of the foregoing sums from the date of this judgment , having regard to their compensatory nature .","Furthermore , regard being had to the length of time the case has lasted and the plaintiffs\u2019 indisputable right to be compensated , this judgment shall be immediately enforceable notwithstanding any appeal , as is moreover appropriate to the nature of the case .","\u2026 \u201d","In so deciding , the court adopted the assessment made in the court - appointed expert \u2019s report that was filed on DATE .","On DATE the President of ORG , ruling on the application for an interim order by PERSON ORG and the Evry ORG , refused the council \u2019s and corporation \u2019s requests for a stay of execution of the judgment of the Evry tribunal de grande instance .","His order read as follows :","\u201c \u2026","The general principle of law that property belonging to public bodies is exempt from execution , thus making it impossible to have recourse to the execution procedures of private law , has no bearing on the present case , as the execution of judgments by public bodies is governed by the special rules laid down in PERSON no . CARDINAL of DATE .","Nor is the considerable sum of damages awarded a sufficient ground in itself for staying immediate execution , and in any event the defendants did not claim that immediate payment of the sums in question would have manifestly unconscionable consequences for them within the meaning of LAW .","Furthermore , they did not in any way establish that PERSON and PERSON had not provided sufficient security to satisfy any order for restitution in the event of the decision \u2019s being set aside by ORG .","It follows that the applications by PERSON Town Council and EPEVRY must be dismissed in their entirety .","\u2026 \u201d","On DATE ORG delivered its judgment on the appeal by PERSON ORG against the judgment of the NORP tribunal de grande instance . It reduced the amounts awarded by that court on the following grounds :","\u201c \u2026","The value of the real property","\u2026","The land can not be valued on DATE of compensation by indexing the price per sq . m in DATE in line with the building cost index , which is inappropriate in the instant case . In order to arrive at the DATE value of the property , regard will be had to the fluctuations in property prices in the sector concerned for comparable properties , which gives a round figure of MONEY , whence a repurchase allowance of \u2026 MONEY and a total sum of MONEY = MONEY .","The expert has made an expert assessment of the value of the improvements ( buildings , gardens and swing ) , valuing them at MONEY ( DATE value ) . The present - DATE value may be assessed , as it was by the court below , at MONEY .","In consequence , PERSON and PERSON will receive in respect of the loss of the value of the property total compensation of MONEY .","Loss of enjoyment","The damage resulting from the loss of this property since DATE will be assessed at MONEY , regard being had to the average return to be expected from such a property .","Non - pecuniary damage","The sum of MONEY will be awarded to PERSON and PERSON in respect of the non - pecuniary damage resulting from the unjustified dispossession of their property and the trouble caused by the reluctance of PERSON ORG to compensate them for the damage arising from their unlawful eviction from their property in DATE .","\u2026 \u201d","On DATE PERSON ORG transferred to the ORG account of PERSON , PERSON counsel in the proceedings before the national courts , the sum awarded her by the NORP tribunal de grande instance .","According to the applicant , the town council was going to seek restitution of the difference between the sum it had paid and the one awarded by ORG .","On DATE PERSON appealed on points of law against ORG judgment .","In her submissions on the application of LAW the applicant requested the ORG :","\u201c To order GPE to pay the applicant , pursuant to LAW , the sum of ORG CARDINAL,CARDINAL,CARDINAL in respect of the violation of LAW No . CARDINAL , together with statutory interest from the date of the judgment .","In the alternative :","To reserve the question of the application of LAW pending the judgment of ORG .","In any event :","To order GPE to pay PERSON the sum of ORG in respect of costs of representation , together with statutory interest from the date of the judgment . \u201d","The Government considered that the \u201c payment by [ the ] town council of the sums awarded to PERSON as compensation for her pecuniary damage [ made ] it possible to envisage closing the case \u2026 \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4520","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":1999,"docname":"ANDRIC v. SWEDEN","importance":3,"conclusion":"Inadmissible","judges":"Josep Casadevall","text":["The applicant , born in DATE , presently resides in GPE , GPE . In his application form , he states that he has NORP nationality .","","On DATE the applicant arrived in GPE and requested asylum . He stated that he was NORP . Before leaving for GPE , he had been living in PERSON . He held also a NORP passport but this was to be considered as a travel document only . In DATE , while serving as a policeman in GPE , he refused to join the NORP forces and , as a consequence , he was accused of having stolen CARDINAL rifles from the police station . Later , he was placed in a special unit from which he could not resign . Resenting police attacks on NORP and being unable to handle the mental and physical stress , he later deserted from that unit . Further , in DATE PERSON was occupied by NORP troops . Along with other residents , the applicant participated in the defence of the village . Later , he was forced to leave the village and , on DATE , he arrived in GPE with his parents and siblings . Allegedly , if returned to GPE , he would risk being sent to GPE where he could be sentenced to DATE in prison for refusing to bear arms .","On DATE ORG ( ORG invandrarverk ) rejected the applicant \u2019s request and ordered his deportation to GPE . ORG called into question the credibility of the applicant \u2019s statements concerning his military and police activities as he had changed the statements during the course of the investigation . Finding that the applicant held both NORP and NORP citizenship , the ORG referred to a decision concerning asylum seekers with such double nationality taken by ORG on DATE . According to the decision , the prevailing situation in GPE rendered deportations to that country impossible . Consequently , in assessing applications from these asylum seekers , the crucial question was whether they could be afforded protection in GPE . ORG noted that , according to available information , persons in the applicant \u2019s situation did not risk to be sent from GPE to GPE against their will . Moreover , no acts of warfare had taken place on NORP territory for some time and a cease - fire had been agreed upon by the contending parties . Thus , there was no apparent risk that NORP citizens in general would be forced to take part in armed conflict . Further , the applicant had failed to show that he personally faced such a risk .","The applicant appealed to ORG ( Utl\u00e4nningsn\u00e4mnden ) . On DATE ORG , sharing the opinion of ORG , rejected the appeal .","The applicant later requested a temporary residence permit in GPE . By a decision of DATE ORG granted the applicant such a permit until DATE and quashed the deportation order . In so doing , ORG referred to a Government decision of CARDINAL DATE according to which the worsened situation in GPE constituted an impediment to the deportation of asylum seekers to that country .","On DATE the applicant submitted a new application for a residence permit . He referred to his previous statements . Further , in a final statement of DATE he claimed that he should be granted a residence permit on humanitarian grounds on account of the time he had spent in GPE .","On DATE ORG rejected the applicant \u2019s new application and ordered his deportation to GPE . ORG had regard to a guiding decision taken by ORG on DATE . In that decision the ORG stated , inter alia , the following :","( Translation )","\u201c As regards the situation in GPE and the region , the ongoing peace process , based on a general agreement on peace in GPE , has lead to stabilisation . The relations between GPE and GPE have improved . GPE has been admitted into ORG . Acts of warfare have not occurred on NORP territory since DATE . The risk of further conflicts appears unlikely . The general situation in GPE has improved in such a way since the Government \u2019s previous assessment in DATE that nowadays NORP citizens can generally be afforded protection in GPE . \u201d","ORG noted that ORG view had been confirmed by the ORG High Commissioner for Refugees ( ORG ) and ORG . As in the previous decisions taken concerning the applicant , ORG found that he could not be sent back to GPE . With regard to the possible deportation to GPE , the ORG noted that no new circumstances had been invoked by the applicant . Consequently , ORG shared the opinions expressed in its decision of DATE and the decision taken by ORG on DATE . Furthermore , ORG found that there were no reasons of a humanitarian nature to grant the applicant a residence permit .","Following the applicant \u2019s appeal , ORG , on DATE , quashed ORG decision and referred the case back for re - examination . ORG found that no oral hearing had been held by ORG , as required by law .","ORG held an oral hearing in the case on DATE during which the applicant stated that , despite the fact that he held a NORP passport , he did not possess the full rights of a NORP citizen . Moreover , his parents and one of his brothers lived in GPE where they had difficulties to support themselves . In GPE nothing in particular would happen to the applicant but it would be hard for him to find work and a place to live .","In a decision of DATE ORG rejected the applicant \u2019s new application on the same grounds as those expressed in the quashed decision . On DATE ORG rejected the applicant \u2019s appeal . ORG noted that the applicant is an ethnic NORP and , as such , would be at risk in his NORP home district , dominated by NORP . However , the applicant \u2019s statements did not indicate that he would face ill - treatment in GPE .","In medical certificates issued by the psychiatric clinic at the hospital in GPE on DATE and DATE chief physician PERSON and therapist PERSON stated that the applicant had undergone treatment for some time at the clinic for a post - traumatic stress syndrome . Allegedly , the enforcement of the deportation order would seriously impair his mental state and could lead to a suicide attempt . The clinic submitted the first certificate to ORG and requested that the enforcement be suspended .","By a decision of DATE ORG suspended the enforcement of the deportation order for an unspecified period of time ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81441","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF PALADI v. MOLDOVA","importance":2,"conclusion":"Preliminary objections dismissed;Violation of Art. 3;Violation of Art. 5-1;Not necessary to examine Art. 5-3 and 5-4;Violation of Art. 34;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant worked as Deputy Mayor of PERSON . He was also a lecturer at ORG in GPE . DATE and DATE he was held in the remand centre of ORG ( \u201c the NORP \u201d ) . On DATE he was transferred to ORG no . CARDINAL of ORG in PERSON ( also known as \u201c Prison no . CARDINAL \u201d , which was subsequently re - named \u201c Prison no . CARDINAL \u201d ) . The applicant suffers from a number of illnesses ( see paragraphs CARDINAL and CARDINAL below ) .","The applicant is accused in CARDINAL separate sets of criminal proceedings under LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( \u201c the ORG \u201d ) of abuse of his position and excess of power .","On DATE the ORG opened a criminal investigation concerning the applicant and on DATE he was taken into custody .","On DATE ORG issued a warrant for his arrest and detention for DATE . The reasons given by the court for issuing the warrant were that :","\u201c [ The applicant ] is dangerous to society . If released he may reoffend , destroy evidence or abscond from the law - enforcement authorities , may obstruct the normal course of the investigation or the taking of evidence and may influence evidence and witnesses . \u201d","On DATE the ORG upheld that decision . Judge PERSON dissented , finding no reason to detain the applicant , as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation . The applicant had a family and a permanent residence in PERSON , was ill and had no criminal record .","The applicant made habeas corpus requests on CARDINAL , CARDINAL and DATE , CARDINAL DATE and DATE , and on DATE , DATE and DATE . He relied on the following facts : his poor state of health ; the absence of a criminal record ; his impeccable reputation as a Doctor of ORG and a university lecturer ; the fact that his identification documents had been seized by the prosecuting authorities so that he could not leave the country ; the fact that his family and permanent residence were in PERSON ; the fact that he supported his CARDINAL-year - old mother who was an invalid ; he had the personal guarantee of CARDINAL well - known persons ( who had already deposited CARDINAL NORP lei ( ORG ) and each of whom was prepared to pay the further ORG CARDINAL initially requested by the court ) ; and the lack of reasons for his arrest . All these requests were rejected for reasons similar to those given in the decision of DATE .","NORP On DATE the case file was submitted to the trial court .","On an unspecified date in DATE the prosecution submitted to the trial court a second case file in which the applicant was also identified as CARDINAL of the accused . The investigation into that case had begun on DATE . The investigators twice closed it for lack of evidence ( on DATE and DATE ) but on both occasions a prosecutor ordered its reopening . On DATE both cases were joined .","On DATE Judge PERSON , President of ORG , rejected the applicant \u2019s request for release against the personal guarantee of CARDINAL well - known persons , without giving any reasons .","The applicant appealed but Judge PERSON refused to forward his appeal to ORG because the law did not provide for an appeal against such decisions . The applicant submitted the appeal to ORG directly , which also refused to examine it for the same reason . A similar response was given to appeals made on DATE and DATE .","On DATE a third criminal case file was submitted to the trial court accusing the applicant of abuse of power in his own personal interest . This case was also joined to the CARDINAL cases against the applicant mentioned above .","From DATE the applicant was detained in the ORG remand centre . On DATE a medical consultative board examined the applicant \u2019s medical file at his wife \u2019s request and made the following diagnosis : type II diabetes ( insulin - dependent ) , polyneuropathy , diabetic angiospasm , autoimmune thyroiditis stage CARDINAL , consequences of trauma to the head with intracranial hypertension , vagovagal paroxysm , chronic obstructive bronchitis , recurrent chronic pancreatitis with endocrine failure , chronic active hepatitis and asthenic syndrome . On DATE the applicant \u2019s wife informed the trial court of the findings of the medical board .","According to the applicant , the ORG remand centre had no medical personnel until DATE , when a general practitioner was hired to work there . He claims that he requested medical assistance on a number of occasions but received treatment only from doctors from other institutions who visited him when there was an emergency . On DATE an ambulance was called to treat the applicant for an acute hypertension . The doctor prescribed a consultation with an endocrinology specialist , who saw the applicant on DATE . The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply . He submitted copies of complaints from his wife , his mother and a parliamentary group to the ORG authorities , ORG , the trial court , the President of GPE , the Minister of ORG and other authorities . The applicant \u2019s wife received several formal replies , essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise .","On DATE the applicant was seen by Doctor PERSON , a psychoneurologist , who concluded that his state of health was \u201c unstable with a slight improvement \u201d and that he needed to continue treatment under supervision . On DATE the applicant was transferred to the remand centre of Prison no . CARDINAL in GPE .","On DATE , in accordance with a court order , the applicant was examined by a medical board of ORG . B.I. , a neurologist and member of the board , diagnosed him with encephalopathy , polyneuropathy of endocrinal origin , hypertension , peripheral vascular disease and inferior paraplegia . He recommended that the applicant be treated on an in - patient basis . Z.A. , an endocrinologist and member of the board , diagnosed the applicant with diabetes , macro and micro - angiopathy , cardiomyopathy , arterial hypertension , diabetic steatorrhoeic hepathosis , thyroiditis , hypothyroiditis and encephalopathy . He recommended a special diet and treatment on an in - patient basis in specialised clinics ( endocrinology - cardiology - neurology ) . PERSON , Head of ORG of ORG and a member of the board , diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy , unstable pectoral angina , prolonged attacks during DATE , arterial hypertension ( CARDINALrd degree ) , congestive heart failure ( CARDINALnd degree ) , hypertension and endocrinal renal failure , diabetic vascular disease and thoracic dilatation . PERSON recommended that the applicant be treated on an in - patient basis in a cardiology unit in order to investigate and prevent the risk of myocardic infarctus . She considered it necessary to undertake anti - coagulant treatment but noted that , given the risk of gastric haemorrhage , such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary .","On the basis of these recommendations , the trial court ordered the applicant \u2019s transfer to a prison hospital .","On the basis of an order by ORG , Doctor PERSON , a neurologist from the NORP ORG of ORG ( \u201c the ORG \u201d ) , examined the applicant on DATE . He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of ORG , including treatment with hyperbaric oxygen ( ORG ) therapy .","On CARDINAL DATE the director of the prison hospital where the applicant was held informed the court of ORG \u2019s recommendations and said that the applicant was being given the medication prescribed but not ORG therapy , which it was impossible to administer at the prison hospital for lack of the necessary equipment . He also informed the court that the applicant \u2019s condition prevented him from attending court hearings .","On DATE ORG found that the condition of the applicant and of another co - accused had worsened and suspended the examination of their cases \u201c until recovery \u201d . The court did not respond to the applicant \u2019s wife \u2019s request for his release to allow treatment or to the above - mentioned letter from the director of the prison hospital .","By letters of CARDINAL , DATE and DATE , DATE and CARDINAL DATE the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by GPE","On DATE and DATE a medical board of ORG , which included doctors from the ORG , examined the applicant , and on DATE it recommended , inter alia , ORG treatment in a specialised neurological unit .","On DATE the director of the prison hospital confirmed , on the applicant \u2019s behalf , that the hospital did not have the necessary equipment for the required neurological treatment . That information was submitted to ORG .","On DATE ORG filed an amicus curiae brief with the court after visiting the applicant in hospital . It considered that the applicant \u2019s state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend the examination of the case pending his recovery .","In view of the findings of ORG medical board of CARDINAL DATE recommending that the applicant be treated in a specialised neurological unit , ORG on DATE ordered his transfer to the ORG for DATE .","On DATE the applicant requested ORG to order an expert report regarding his state of health before and after his arrest , as well as his condition on the date of lodging the request . In its decision of DATE ORG rejected the applicant \u2019s request , since no doubts regarding his state of health had been raised .","On an unspecified date the applicant requested the ORG management to describe his state of health and the treatment received . He received no answer . On DATE the court ordered the ORG to answer immediately and the court received its answer on DATE . In it , the ORG set out its diagnosis of the applicant \u2019s condition and found that his health was unstable and that he needed further treatment . On DATE ORG extended the applicant \u2019s treatment until DATE , on the basis of the letter from the ORG .","According to a certificate issued by ORG of ORG ( \u201c the ORG \u201d ) , the applicant received CARDINAL ORG therapy sessions there starting on DATE , which produced positive results . The applicant was prescribed a CARDINAL - session course , scheduled to continue until DATE . According to the applicant , he was escorted from the ORG to the ORG DATE for the procedure and also began an acupuncture course there . The applicant submitted a copy of the certificate to ORG , which on DATE decided that he should be transferred to the prison hospital . The court based its decision on the ORG \u2019s letter of CARDINAL DATE which stated that the applicant \u2019s condition had stabilised and that he would be released on DATE . Since the ORG letter did not include ORG therapy among its recommendations for treatment , the court found the schedule of ORG treatment for DATE to be irrelevant .","On DATE ORG replied to ORG questions regarding the need to treat the applicant . The letter stated that on DATE the applicant \u2019s medical records had been examined by a group of doctors , who found that he did not need in - patient treatment \u201c in any medical establishment , including the [ ORG ] \u201d and that he could be treated as an out - patient .","In his letter of CARDINAL DATE the applicant submitted to ORG a certificate stating that on DATE he had been recognised as having a second - degree disability .","On DATE the trial court rejected the applicant \u2019s habeas corpus request on the following grounds :","\u201c the reasons for prolonging the accused \u2019s detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court and altering the preventive measure may hinder the establishment of the truth in the criminal trial . \u201d","On DATE the applicant made another habeas corpus request , relying on Articles CARDINAL and CARDINAL of the LAW and emphasising that while examination of his case had been suspended pending his recovery , he had been refused the medical treatment necessary to ensure such a recovery . The court postponed examination of the request . Examination of the request was again postponed on DATE for an indefinite period .","On DATE Judge PERSON was absent and examination of the case was postponed . On DATE other members of the court were absent and examination of the case was once more postponed .","On DATE the applicant requested a copy of the court transcript of CARDINAL and DATE and informed the court of the worsening of his condition . The request was refused . On DATE ORG informed the applicant that examination of his habeas corpus request had been postponed pending an answer from ORG to its inquiry of DATE regarding his condition .","On DATE ORG rejected the applicant \u2019s habeas corpus request \u201c because the reasons for prolonging the detention remain valid \u201d . The court also rejected the applicant \u2019s complaint that the insufficient medical treatment he had received amounted to inhuman and degrading treatment :","\u201c ... because the representative of the [ prison hospital ] declared that [ the applicant ] had been given the necessary medical treatment on an in - patient basis ; there is no evidence of inhuman or degrading treatment . \u201d","At the same time , however , the court ordered the applicant \u2019s transfer to the ORG ( see paragraph CARDINAL above ) .","On DATE the applicant \u2019s appeal was not examined , the court finding that no further appeal was possible . The court also rejected his request for a medical examination in order to establish his current state of health and the manner in which he had been treated during his detention .","On DATE the applicant made another habeas corpus request , challenging , inter alia , the persistence of any reasonable suspicion justifying his continued detention . He referred to the finding of a violation of LAW in the case of ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) as a new circumstance warranting re - examination of the need to detain him . The court rejected the request , finding that it could be submitted only DATE at least after the last such request had been examined . It also found that the judgment referred to was not a new circumstance as it related only to Mr ORG and not to the applicant .","On DATE the applicant asked ORG to order his continued treatment at the ORG or his release based on his habeas corpus request . The court rejected the request ( see paragraph CARDINAL above ) and did not examine the habeas corpus request .","On DATE ORG rejected the applicant \u2019s habeas corpus request of DATE , finding that :","\u201c ... not all the evidence has been examined ; [ the applicant ] has worked as a deputy Mayor of PERSON and continues to have influence over witnesses yet to be questioned ; he may obstruct the presentation to the court of authentic evidence still being kept by GPE . \u201d","On DATE the applicant \u2019s detention pending trial was replaced with an obligation not to leave the country .","On TIME DATE the ORG indicated by facsimile to ORG an interim measure under Rule CARDINAL of ORG , stating that \u201c the applicant should not be transferred from the ORG until the ORG has had the opportunity to examine the case , i.e. until DATE at the latest \u201d . On DATE the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by ORG , but received no response .","On TIME the applicant requested the trial court to stay the execution of its decision of DATE and to prevent his transfer from the ORG . He submitted a copy of the facsimile from ORG the interim measures . ORG did not hold a hearing and did not reply to his request . He was transferred to the prison hospital on DATE .","On DATE the applicant \u2019s lawyer informed the President of ORG of the failure by Judge PERSON , President of ORG , to examine his request of DATE and asked for urgent action in order to ensure compliance with the ORG \u2019s order for interim measures . On DATE the lawyer submitted a similar request to the Agent for ORG before the ORG and to ORG , noting that the prosecutor in charge of the case had supported the applicant \u2019s request to continue being treated at the ORG .","On DATE and following ORG request , ORG ordered the applicant \u2019s transfer to the ORG until CARDINAL DATE . The subsequent events are disputed by the parties . According to the applicant , he was brought to the ORG at TIME , but for TIME the management refused to admit him . When the applicant began to feel ill , the management admitted him after TIME . According to the Government , the applicant was admitted on DATE ORG ordered his admission and the delay resulted from the LOC view that the applicant did not require further treatment at the ORG . ORG had personally overseen execution of the order .","The applicant submitted a copy of a news report broadcast on the PRO - TV television channel , which showed the events at the ORG . The reporter stated that the applicant had been kept waiting for TIME for a decision and that he was finally admitted after TIME . The doctors informed the reporter that they had refused initially to admit the applicant because of the absence of his personal medical file and had admitted him only when the medical file was brought to them . In an interview given to the same reporter , ORG stated that the reason for the delay in admitting the applicant was \u201c certain technical , organisational issues \u201d . This was confirmed by a statement by the head of ORG .","On DATE ORG informed the applicant \u2019s lawyer , in response to his letter of DATE , that ORG had officially received information about ORG order for interim measures on DATE at TIME Following an urgent court hearing , the trial court had ordered the applicant \u2019s transfer to the ORG .","In DATE the applicant allegedly made proposals in writing to the Government regarding the friendly settlement of his case . The document which he submitted to the ORG referred to his poor state of health making it impossible for him to participate in the criminal proceedings and included the condition of his \u201c final acquittal guaranteed by the ORG \u201d before he would agree to withdraw his application before the ORG .","On DATE the Government submitted to the ORG a friendly settlement agreement signed by them and the applicant on DATE . They asked the ORG to strike the application out of its list of cases pursuant to LAW .","The applicant did not inform ORG agreement and did not ask for the striking out of his application . When asked to comment , his lawyer submitted that he had not been aware of the agreement as he had not been involved in the negotiations . In response to the ORG \u2019s letter of CARDINAL DATE asking the applicant to confirm the conclusion of his free will of the friendly settlement agreement , the applicant asked the ORG , on CARDINAL DATE , to continue the examination of his case since his main condition , allegedly unofficially agreed upon with the ORG , of being acquitted of all charges , had not been fulfilled and he considered the agreement null .","The relevant domestic law has been set out in this ORG \u2019s judgment in ORG ( cited above , \u00a7 \u00a7 DATE ) .","In addition , LAW provides :","\u201c ( CARDINAL ) In trying a case the court may order , replace or revoke a preventive measure against an accused , either at the parties\u2019 request or of its own motion . A new request for the ordering , replacing or revoking of a preventive measure can be submitted if there appear to be reasons for doing so , but not DATE from DATE when the previous court decision on the same matter entered into force , unless there are new circumstances which prompt the new request .","( CARDINAL ) Where detention pending trial is imposed , the court decision may be appealed against , within DATE , to higher court , which will decide on the appeal in accordance with LAW applied mutatis mutandis . \u201d"],"violated_articles":["3","34","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58084","languageisocode":"ENG","respondent":"CHE","branch":"GRANDCHAMBER","date":1997,"docname":"CASE OF BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND","importance":2,"conclusion":"Preliminary objection rejected (victim);Not necessary to examine preliminary objection (non-exhaustion of domestic remedies)","judges":"C. Russo;John Freeland;N. Valticos","text":["The applicants live in the villages of ORG , PERSON and PERSON , situated in containment zone no . CARDINAL ( Alarmzone CARDINAL ) within a","radius of QUANTITY from the nuclear power station at GPE ( GPE of GPE ) . They either own or rent their homes .","On DATE the company which had operated the power station since DATE , ORG ( \u201c the operating company \u201d ) , applied to ORG ( the government ) for an extension of its operating licence for an indefinite period and for permission to increase production by PERCENT . The application was published in ORG of DATE together with a notice inviting persons satisfying the requirements laid down by section CARDINAL of LAW ( see paragraph CARDINAL below ) to file an objection .","CARDINAL objections in all were sent to ORG , CARDINAL of which came from GPE and GPE .","In their objection of CARDINAL DATE , to which several expert opinions were attached , the applicants requested ORG to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power station . Relying in particular on LAW ( the former ) section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , they maintained that the power station did not meet current safety standards on account of serious and irremediable construction defects and that , owing to its condition , the risk of an accident occurring was greater than usual . In addition , they asked the authorities to obtain further data and in the meantime take certain provisional measures . With regard to the fact that under the applicable law ORG would consider the application for an operating licence as an authority of both first and last instance , they pointed out that its decision could give rise to an application based on LAW since it affected their civil rights .","On DATE and DATE ORG and ORG rejected the requests for interim measures and for gathering the additional data .","On DATE ORG dismissed all the objections as being unfounded and , subject to compliance with various specified safeguards , granted an operating licence until DATE and authorised a PERCENT increase in production . In its decision it relied on an expert report by ORG , an independent report prepared at the request of ORG on the effects of the power station on the nearby river and opinions of ORG , ORG for ORG and the cantonal authorities .","ORG found firstly that the objectors living in containment zone no . CARDINAL were entitled to take part in the proceedings , unlike the objectors who lived further away from the power station , mainly in GPE and GPE .","It then recapitulated the factors which , under LAW ( see paragraph CARDINAL below ) , justified refusing an operating licence or granting it subject to conditions and stated that applicants who satisfied all the statutory requirements were entitled to an operating licence .","It went on to note that although power stations built DATE certainly no longer met current technical standards , they could nonetheless be maintained and modernised so that they could continue to operate quite safely . In order to satisfy itself that this was so in the instance under review , ORG considered each of the objections in turn . It found them to be unfounded .","With regard to the complaint based on the right to life protected by LAW , ORG drew attention to the position under ORG case - law , whereby only deliberate infringements could constitute a breach of that right . That did not apply to the operation of a nuclear power station , at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations .","NORP Under LAW ( CARDINAL ) ( a ) of LAW of DATE on the Peaceful Use of Nuclear Energy ( \u201c LAW \u201d ) , a licence from the ORG is required for the construction and operation of nuclear installations and for any changes in the purpose , nature or scale of such installations . LAW ) provides that a licence must be refused or granted subject to appropriate conditions or obligations if that is necessary in order , in particular , to protect people , the property of others or important","rights . Section CARDINAL provides that ORG or a body designated by it decides licence applications . No appeal lies against its decisions .","Under ORG case - law , the safety of nuclear power stations can only be considered by the ORG as part of its licensing procedures ( Judgments of ORG ( ORG ) , vol . CARDINAL GPE , p. CARDINAL ) .","Section CARDINAL of LAW of DATE provides that ORG hears , as a final court of appeal , administrative - law appeals against decisions of the federal authorities . However , by section CARDINAL ( e ) , as worded at the material time , no appeal lay against the grant of a licence for technical installations to be brought into service .","Section CARDINAL of LAW of DATE lays down the principle that administrative decisions are appealable . By DATE , however , an appeal is inadmissible if it is made against a decision against which an administrative - law appeal lies to ORG . Under section CARDINAL ( a ) a person has locus standi to appeal if he is affected by the decision and has an interest worthy of protection in having the decision set aside or varied .","The relevant provisions of LAW read as follows :","\u201c Any person who sustains or is exposed to damage because an owner abuses his right may bring an action against that owner requiring him to restore the previous position or to take preventive measures , without prejudice to any damages . \u201d","\u201c CARDINAL . When exercising their right , especially when carrying on industrial processes , owners are required to refrain from acting in a manner detrimental to neighbouring properties .","NORP The following , in particular , are prohibited : emissions of smoke or soot , offensive smells , noises , and vibrations which are harmful and exceed the limits of the tolerance which neighbours must show to each other having regard to local custom and the situation and type of the buildings . \u201d","By virtue of section CARDINAL of LAW of DATE , expropriations may be carried out \u201c for the purposes of works that are in the interest of the ORG or of a substantial area of the country and for any other public - interest aim recognised by federal law \u201d .","Section CARDINAL ( CARDINAL ) provides : \u201c The following may be expropriated : rights in rem over land , rights arising from land ownership that concern relations between owners and occupiers of adjacent LOC and the rights in personam of tenants or farmers of the property to be expropriated . \u201d","With regard to the latter provision , ORG has held :","\u201c Actions brought under Articles CARDINAL and CARDINAL to CARDINAL [ of LAW ] ... are included among the rights which may be expropriated under LAW ... If the emissions or other allegedly adverse effects result from the construction , in accordance with the applicable law , of a building in the public interest for which land has been expropriated , or are the consequence of using the building for its intended purpose , no private - law action lies for the purpose of obtaining an injunction or compensation . A claim for compensation for expropriation replaces the cause of action under private law and must be made to the expropriations judge , who has jurisdiction not only to assess compensation but also to rule on whether the right ... exists . An expropriating authority 's refusal to commence proceedings may be challenged , at last instance , by means of an administrative - law appeal to ORG . \u201d ( ORG , vol . CARDINAL Ib , p. CARDINAL )","In another judgment ORG held :","\u201c By virtue of section CARDINAL ... , rights arising from land ownership that concern relations between owners and occupiers of adjacent premises may be expropriated and be forfeited or restricted , temporarily or permanently , provided that the proportionality principle is complied with ... \u201d ( ORG , vol . CARDINAL Ib , p. CARDINAL )","Section CARDINAL of the LAW has applied in the case of people living near very busy main roads who were concerned about pollution from exhaust fumes ( ORG , vol . CARDINAL Ib , p. CARDINAL ) . Under ORG case - law , compensation is awarded if the nuisance was not foreseeable and resulted in substantial damage and if the owner suffered special loss ( loc . cit . , p. CARDINAL ) . In order to assess foreseeability , it is necessary to determine whether the owner could reasonably have known of the future nuisance when he became the owner of the property ( ORG , vol . CARDINAL Ib , p. CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101872","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2010,"docname":"CASE OF MAJAN v. SLOVAKIA","importance":4,"conclusion":"Violation of Art. 6-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in Rimavsk\u00e1 Ba\u0148a .","The applicant 's father was a member of an agricultural co - operative . He died in DATE .","The cooperative underwent a transformation and a monetary value of the membership interests of individual members was established . In a decree of CARDINAL DATE the co - operative certified the financial value of the ownership interest that had once belonged to the applicant 's father .","The applicant subsequently made a claim for compensation in respect of his father 's membership interest ( see below ) .","On DATE the Bansk\u00e1 Bystrica Regional Court declared the co - operative insolvent .","On DATE the applicant registered his compensation claim in the insolvency proceedings .","On DATE the regional court held a hearing ( prieskumn\u00e9 pojedn\u00e1vanie ) with a view to establishing the claims of the different creditors . At the hearing the receiver rejected the applicant 's claim on the ground that he had filed it in his own name but had failed formally to show that the claim , which had originally belonged to his father , had actually devolved on him . The applicant was referred to the possibility of seeking judicial establishment of his claim by way of a separate action ( inciden\u010dn\u00e1 \u017ealoba ) . The applicant brought such an action and was successful ( see below ) .","In the following period , the regional court agreed to the sale of the co - operative 's individual assets .","On DATE a final report on the sale of the co - operative 's assets was submitted to the regional court . It was amended on DATE and displayed on the regional court 's official notice board on DATE .","On DATE a hearing took place . On DATE a meeting of the insolvency creditors took place and a new receiver was appointed .","On DATE the applicant informed the ORG that the insolvency proceedings were still pending .","On DATE the applicant brought an action against the insolvency receiver in the regional court seeking judicial establishment of his compensation claim .","On DATE the regional court granted the action and decided that the applicant had a claim in an amount equivalent to CARDINAL . The applicant alleged that the judgment had not been served on him but on his daughter and therefore had not yet become final .","The Government stated that the judgment had become final on DATE .","On DATE the applicant lodged a complaint under LAW with ORG in respect of the length of the insolvency proceedings and the proceedings in the action for establishment of his claim .","On DATE ORG declared the complaint inadmissible . As for the proceedings in the applicant 's action , it observed that they had ended in DATE . They had thus no longer been pending at the time when the constitutional complaint had been lodged . In these circumstances , in line with ORG established practice , the complaint of the length of those proceedings was manifestly illfounded . As for the insolvency proceedings , ORG observed that the sale of the co - operative 's assets was still under way and had not yet been completed . As ORG had not found any undue delays , it concluded that the complaint in respect of the insolvency proceedings was manifestly ill - founded ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71944","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF SEL\u00c7UK v. TURKEY","importance":4,"conclusion":"Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant , who was DATE at the time , was arrested by police officers from FAC in connection with an ongoing investigation concerning a robbery that had taken place in a primary school . In his police statement , the applicant confessed that he had been involved in a robbery on DATE together with CARDINAL of his friends . He explained that he had helped his friends in carrying a computer from the primary school . DATE he was brought before the public prosecutor , and the investigating judge at the Kar\u015f\u0131yaka ORG , where he repeated his statement to the police . Having regard to the evidence in the file and considering that there was a risk of absconding , the investigating judge ordered that the applicant be detained on remand in a prison together with adults .","The applicant \u2019s representative challenged this decision before ORG and maintained that the evidence in the file did not suffice to keep her client in detention . Invoking Articles CARDINAL and CARDINAL of the Convention , she requested that the applicant be released .","On DATE the PERSON public prosecutor instituted criminal proceedings against the applicant in ORG . He charged him with robbery under LAW .","On DATE the Kar\u015f\u0131yaka ORG commenced the trial against the applicant . Taking into account the seriousness of the offence and the evidence in the case - file , it ordered that the applicant \u2019s detention on remand be continued .","On DATE the applicant \u2019s representative challenged this decision . She invoked Articles CARDINAL and CARDINAL of the LAW and alleged that there was not sufficient evidence in the file to keep her client in detention . She further maintained that pursuant to LAW , a person could only be held in detention on remand if there were a risk of absconding and\/or of tampering with evidence . She stated that the authorities knew where the applicant lived and there were no sufficient grounds to believe that the applicant would try to flee . Furthermore , according to the lawyer , as all the evidence relating to the case had already been gathered by the authorities , there was no risk of tampering with evidence .","On DATE the Kar\u015f\u0131yaka ORG refused the applicant \u2019s request for release basing itself on the nature and seriousness of the accusation , and the evidence in the file .","During the hearing which was held on DATE , the Kar\u015f\u0131yaka ORG heard the applicant \u2019s testimony . Before the court , the applicant denied the charges and stated that he had not been involved in the robbery . Underlining that the applicant was a minor , the representative of the applicant asked the court for his release . Having regard to the nature of the crime , and taking into consideration the time spent in detention , the court decided that the applicant \u2019s detention should be continued .","On DATE the applicant \u2019s representative asked ORG to release her client . She maintained that he had been in detention since DATE and stated that there was no sufficient evidence to keep him in detention . The court once again refused her request .","On DATE the applicant \u2019s representative further requested her client \u2019s release referring to LAW . She stated that the court was not examining their requests for release thoroughly . She contended that the applicant \u2019s release would not in any way pose a danger to public order . She also stated that the applicant was ready give a guarantee to offset any risk of absconding .","On DATE the Kar\u015f\u0131yaka ORG dismissed the applicant \u2019s request relying on the evidence in the file and the seriousness of the offence .","On DATE ORG held another hearing , at the end of which it ordered that the applicant remain in detention on remand .","On DATE the applicant \u2019s lawyer challenged this decision before ORG . She maintained that her client was a minor and could not be kept in detention for such a long time . In this respect , she invoked LAW ( b ) of LAW on the Rights of the Child .","On DATE the Kar\u015f\u0131yaka ORG rejected the request for release basing itself on the evidence in the file , the time spent in detention and the nature of the offence .","On DATE , after spending DATE in detention on remand , the applicant was released pending trial .","The proceedings against the applicant are still pending ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108877","languageisocode":"ENG","respondent":"ROU","branch":"ADMISSIBILITY","date":2012,"docname":"CIUBOTARU AND OTHERS v. ROMANIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["The applicants , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Ms Ana Ciubotaru , PERSON , Ms PERSON , Mr PERSON and PERSON , are NORP nationals who were born on DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and on other unspecified dates and who live in GPE , GPE . PERSON is a NORP nongovernmental organisation located in GPE . They were all represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , from ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the PERSON and ORG set up an operation to capture CARDINAL GPE people , including Mr NORP and PERSON Ovidiu Ciubotaru and Mr PERSON , who lived in the town of PERSON and were suspected of a number of unlawful acts , including a robbery DATE . The police operation was set up on the basis of an order of DATE issued by ORG attached to ORG of the Interior concerning the identification and capture of , inter alia , the abovementioned individuals . The police officers were divided into CARDINAL teams and instructed to surround the town in order to prevent the wanted individuals from fleeing , to identify the homes of the suspects and to descend on the ORG homes simultaneously .","On DATE fortyfive police officers from the PERSON and PERSON Special Intervention Units and other regular police stations gathered and descended on the town of PERSON . After searching the PERSON homes , the police discovered that some of them were hiding in an abandoned house in the town . The police units surrounded the house . At this point other GPE people started gathering in the street , some of them armed with stones , wooden posts and axes , and started a violent demonstration against the police officers . A further QUANTITY police officers were called in support as a result of the violent behaviour of the crowd .","NORP The police asked the occupants of the house twice to give themselves up , and when they failed to respond the police started using tear gas to draw them out of the house . After tear gas had been used officer GPE negotiated with the occupants of the house for TIME , trying to persuade them to give themselves up , but CARDINAL of the suspects attacked him with an axe . More tear gas was used and another attempt at negotiation was made by GPE , but the police officer was attacked once more by the occupants of the house . The police officers used tear gas for a third time and CARDINAL of the applicants , Mr PERSON and Mr PERSON , as well as another suspect , Mr PERSON , came out of the house . Mr PERSON and Mr PERSON attacked police officer GPE with axes . Police officer GPE and his colleague PERSON opened fire in the direction of PERSON ORG Ciubotaru and Mr PERSON . As a result , Mr PERSON was shot in the thorax and stomach and died at the scene . Mr PERSON was shot in the back and taken to hospital .","In the course of this incident CARDINAL people in the crowd were also shot . The crowd became violent and some of the people in the crowd , including Mr Gelu Ciubotaru , started attacking the police officers . The officers launched verbal warnings and fired into the air to disperse the crowd and stop the attackers . Mr GPE attacked the police officers with a wooden post and grabbed police officer PERSON by the neck and hit him . Consequently , officer PERSON , who had also been injured by the crowd , started firing at Mr Gelu Ciubotaru \u2019s feet and then at his upper body . Mr NORP was shot in the thorax and died at the scene . Mr PERSON , a minor at the time of the events , was also shot in the right side of the thorax and was taken to hospital . According to the forensic report , quoted by the prosecutor at the conclusion of the criminal investigation which followed the incident , some of the parties injured in the events required the following number of DATE of medical care : DATE for Mr PERSON , DATE for Mr PERSON , QUANTITY DATE for officer ORG , and thirtyfive to DATE for officer C.V.S. Two other officers who were part of the support group called in to help the police officers who initiated the operation were also injured : ORG had a serious eye injury which almost caused him permanent blindness , while GPE received a leg injury .","On DATE Mr PERSON , PERSON , PERSON and PERSON signed authorisations for PERSON , a NORP nongovernmental organisation whose purpose is to defend the rights of the GPE community in GPE , to represent them before the state institutions , including , inter alia , the police , the ORG offices and the civilian and military courts in respect of the events of DATE . There is no evidence in the file that the remaining applicants signed similar authorisations . The signatures of the CARDINAL applicants on the authorisations signed on DATE , on the criminal complaints lodged against the police officers involved in the events of CARDINAL DATE and on the powers of attorney signed by them on CARDINAL DATE authorising their lawyer Mr PERSON to represent them before the ORG , appear not to match .","NORP PERSON also authorised legal representatives of its own choice to assist and represent it throughout the entire proceedings .","On an unspecified date in DATE the applicant PERSON lodged a criminal complaint against the police officers who had shot Mr PERSON , her son , who was a minor . Her complaint does not contain any indication that she would have liked to lodge a complaint on her own behalf .","On unspecified dates the applicants PERSON and PERSON also lodged criminal complaints against the police officers involved in the events of CARDINAL DATE . Mr PERSON argued that he had been hit several times on the head and body and PERSON Ovidiu Ciubotaru stated that he had been shot CARDINAL times , although neither of them was resisting arrest . The applicants\u2019 signatures on the complaints lodged against the police officers appear not to match their signatures on the powers of attorney of CARDINAL DATE authorising Mr PERSON to represent them before the ORG .","On an unspecified date Mr PERSON also lodged a criminal complaint against the police officers who had shot and killed Mr PERSON , his son . His complaint does not contain any indication that he would have liked to complain against the police officers on his own behalf . A second power of attorney of CARDINAL DATE available in the file on PERSON PERSON name authorising Mr PERSON to represent him before the ORG was signed by Ms PERSON . Apart from her signature , Ms PERSON name does not appear on any of the powers of attorney available to the file authorising PERSON PERSON to represent the applicants before the ORG .","On an unspecified date Ms PERSON lodged a criminal complaint against the police officers who had shot and killed Mr GPE , her husband . Her complaint does not contain any indication that she would have liked to make a complaint against the police officers on her own behalf .","On an unspecified date the applicant PERSON lodged a criminal complaint against the police officers involved in the events of DATE . She stated that while she was trying to reach her dead son , Mr GPE , the police officers hit her on the back and head and pushed her into a ditch . She also stated that she was DATE at the time and could have not been seen as a threat by the officers .","DATE and DATE the domestic authorities heard victims of the events and their relatives , people who had been in the crowd , and suspected offenders , as well as other police officers who had taken part in the operation . CARDINAL sixtyfive people were heard by the authorities .","On DATE the police officers provided ORG with CARDINAL axes , allegedly used by the applicants to attack them on DATE . The same axes were delivered on CARDINAL DATE to the prosecutor investigating the case .","On DATE ORG of ORG produced a forensic expert report on the bullet wounds sustained by PERSON PERSON and Mr NORP and autopsy reports on the deceased , GPE and PERSON . According to the reports Mr Vasile V\u00e2tu had been shot on DATE from the right with a firearm , using balls as ammunition . Mr ORG Ciubotaru had been shot twice , once in the left cheek and once in the left thigh . The wounds were not lifethreatening to any of the applicants . Furthermore , according to the autopsy reports Mr Gelu Ciubotaru had been shot twice , first in the right thigh and then in the thorax , the latter wound causing his death . Mr PERSON had been shot CARDINAL times , the first CARDINAL times in the left thigh , then once in the right thigh and lastly , once in the thorax . The wounds to his thighs had been caused by metal bullets . The wound in the thorax was the only one responsible for his death and had been caused by a rubber bullet fired at close range from a distance equal to the length of the barrel of the gun it had been fired from .","On DATE ORG investigated the scene of the crime and gathered the evidence found , including stones , wooden posts or sticks , parts of the wall penetrated by bullets , traces of blood and bullet shells for further examination .","On DATE ORG ordered a ballistic expert report on the weapons fired on DATE of the events .","On DATE PERSON informed ORG about the events of DATE and complained that police officers had shot and injured members of the GPE community . On DATE they submitted testimonial evidence gathered from people who had witnessed the events .","The investigation of the abovementioned incident was completed when the criminal investigation was discontinued by a PERSON prosecutor \u2019s office order of DATE . The actions of officers GPE and ORG were investigated on accusations of the crimes of murder and causing physical injuries , as were the actions of Mr Gelu Ciubotaru , Mr PERSON , Mr Ovidiu Ciubotaru and Mr PERSON for the crime of insulting behaviour towards a ORG agent . The investigating prosecutor held that the use of force by the CARDINAL policemen against Mr Gelu Ciubotaru , Mr PERSON , Mr Ovidiu Ciubotaru and Mr PERSON was justified because of the behaviour of the victims , which resulted in the policemen having to resort to legitimate self - defence . The investigating prosecutor , although he referred to PERSON PERSON case , did not identify the person responsible for shooting him and did not state whether or not the proceedings would be discontinued in respect of his injury . The investigation in respect of Mr Gelu Ciubotaru and Mr PERSON was terminated because of their deaths , and that in respect of the applicants Mr PERSON and PERSON Ovidiu Ciubotaru was terminated because it was held that their behaviour did not constitute a crime . The prosecutor \u2019s decision quotes the results of the forensic reports conducted in respect of all the victims of the incident but did not mention the evidence which led to the non - indictment conclusion .","On DATE Mr PERSON , the father of the deceased PERSON , lodged a complaint with ORG concerning unreasonable length of the criminal investigation launched in respect of the events of DATE , and challenged the outcome of the investigation .","ORG dismissed PERSON PERSON complaint by an order of DATE . The prosecutor \u2019s office held that the proceedings had not been excessively lengthy , given the number of ballistic and forensic reports carried out and the large number of witnesses heard , and that his son had been killed by the police officers in self defence .","On DATE PERSON challenged ORG Office decision of DATE in so far as the decision regarding the investigated policemen was concerned on behalf of Mr PERSON , PERSON ORG Ciubotaru , PERSON PERSON , Ms PERSON , and PERSON Eva Ciubotaru .","By an order of DATE ORG dismissed the challenge on the ground that the police officers had acted in legitimate selfdefence . Also , in respect of PERSON PERSON the unlawful act lacked a physicalinjury element . ORG acknowledged the challenge lodged by PERSON , to be introduced only on behalf of PERSON PERSON , Ms PERSON and Ms PERSON . ORG held that according to the available evidence Mr PERSON and Mr Ovidiu Ciubotaru were shot by GPE and ORG while they were preparing to hit GPE with an axe . At the same time , Mr PERSON could not be seen by the policemen because he was hidden behind a wall made of sawdust when he was shot in the thorax . The wound did not endanger his life .","On DATE PERSON appealed against ORG before the domestic courts . The appeal was also lodged on behalf of PERSON , PERSON , PERSON , PERSON and PERSON , but it had not been signed by those CARDINAL individuals . The applicant organisation argued that according to the witness statements and the evidence available to the file the domestic authorities tried to protect the police officers , who on DATE acted in an uncoordinated manner , misused their firearms and breached the applicable legal provisions in force at the time protecting the applicants\u2019 right to life and their right not to be subject to inhuman and degrading treatment in a discriminatory way .","On DATE and DATE respectively Ms PERSON and PERSON PERSON died .","By a judgement of DATE PERSON of Appeal allowed an appeal by the applicants against the prosecutor \u2019s orders . The court dismissed the preliminary objection raised by ORG and the CARDINAL accused , namely that PERSON did not have standing to bring proceedings before the domestic courts concerning the events of DATE . The court held that because PERSON considered that GPE persons had been victims of discrimination they decided to represent them before the domestic courts in accordance with the authorisations signed by some of the parties concerned on DATE . The organisation also lodged a complaint before the domestic courts on its own behalf . Taking into account the organisation \u2019s object of activity and the provisions of section CARDINAL of Emergency Ordinance no . CARDINAL , the court considered that it could not deny in principle the organisation \u2019s legitimate interest and its standing to bring proceedings against state bodies in order to establish whether ethnic discrimination had occurred and whether the rights of its citizens had been protected . In respect of the merits of the case the court held , inter alia , that the operation of DATE had been a work mission and all the police officers involved had been ordered to take part in it . However , the investigation into the events had not been carried out correctly . In particular , the wounding of the police officers GPE and GPE was not directly relevant to the claim of selfdefence , as the QUANTITY police officers previously mentioned had been wounded in the final stages of the operation , when the police were retreating from the town , while the firearms had been used by the policemen at an earlier stage of the events . Moreover , the forensic expert report carried out over the course of the investigation did not establish with certainty if the rubber bullet Mr PERSON had been shot with by officer GPE could have been the only cause of death in the absence of the rest of the shots . The court considered that this was an important factor in determining the identity of the perpetrator of the killing , considering that the same person had been shot almost simultaneously by police officer PERSON , using live ammunition . Furthermore , the CARDINAL axes allegedly used by Mr PERSON and Mr Ovidiu Ciubotaru had not been forensically checked for their fingerprints . The court held that such evidence was important to determine whether the use of firearms by the officers had been justified . In addition , the investigation failed to determine the exact position of the other members of the police force and whether they could have stopped Mr PERSON attack against GPE At the same time , the investigation had failed to establish the distance and the angle from which Mr ORG had been shot . The circumstances of Mr PERSON shooting had also not been clarified by the investigation in view of the parties\u2019 statements , in particular there was no lawful explanation concerning why he had been shot through a wall or precisely when he had been shot during the operation . Lastly , the file did not contain sufficient evidence concerning the reasons for the police operation to capture the applicants : in particular , the court considered that the orders to seek and capture the applicants , the documents containing the charges against them and the arrest warrants issued in their names were missing from the file . Consequently , the court decided to send the case back to the prosecutor \u2019s office in order to supplement the criminal investigation .","GPE , GPE and ORG lodged an appeal on points of law ( recurs ) against the judgment of DATE . They argued , inter alia , that the complaints lodged by PERSON before the domestic courts on behalf of the applicants contesting the prosecutor \u2019s office \u2019s order to discontinue the criminal investigation was not valid . In particular the authorisations signed by some of the applicants allowing PERSON to represent them before the courts did not comply with the formal requirements for powers of attorney provided by the applicable rules of criminal procedure . In addition , they submitted that the evidence in the file proved that the police officers had acted in selfdefence .","On DATE ORG attached to ORG of the Interior informed the investigating authorities that the axes allegedly used by PERSON PERSON and Mr Ovidiu Ciubotaru to attack the police officers had wooden handles which were uneven and pitted . Consequently , ORG did not have substances or a method allowing them to examine fingerprints on such surfaces .","At the hearings of CARDINAL May , DATE , DATE and DATE ORG adjourned the proceedings on account of procedural errors in summoning the parties and in order to allow them to read the written submissions attached to the file .","At the hearing of CARDINAL DATE ORG heard oral submissions from the parties and , because it needed time to deliberate , adjourned the proceedings to CARDINAL DATE , DATE and to CARDINAL DATE .","By a final judgment of DATE ORG allowed the appeals on points of law by GPE , ORG and ORG , quashed the judgment of DATE and declared inadmissible the applicants\u2019 and PERSON \u2019s complaints against ORG order of DATE . It held that none of the natural persons had contested the prosecutor \u2019s office \u2019s order to discontinue the criminal investigation before the domestic courts . Only Mr PERSON lodged a complaint against the prosecutor \u2019s office \u2019s order of DATE , which was dismissed on DATE . He did not challenge the latter decision before the domestic courts . Moreover , none of the applicants had personally signed the challenge lodged by PERSON on their behalf . In addition , the appeal lodged by PERSON on behalf of the applicants against the prosecutor \u2019s office \u2019s order for the investigation to be discontinued was invalid . The nongovernmental organisation had not been empowered by the applicants to represent them before domestic courts on the form required by the applicable rules of criminal procedure , in particular Article CARDINAL ( CARDINAL ) of LAW , and therefore the organisation could not be considered to be the applicants\u2019 representative . The applicants had not provided PERSON with a special and certified power of attorney as required by law . In so far as PERSON argument was concerned , that on the basis of section CARDINAL of Emergency Ordinance no . CARDINAL it had legal standing to bring proceedings before domestic courts , the court noted that the organisation had not sustained any prejudice as a result of the incident complained of , and the police action of DATE concerned the taking into custody of wanted individuals , and did not represent acts of discrimination as required by section CARDINAL of Emergency Ordinance no . CARDINAL . Consequently , it held that PERSON did not have legal standing to bring proceedings before the domestic courts .","The applicants lodged their application before the ORG with a letter dated DATE . The initial application form attached to the letter contained the names of Mr PERSON and PERSON Ovidiu Ciubotaru , Ms PERSON with the note that she was representing PERSON PERSON , Mr PERSON , Ms PERSON and the organisation PERSON . The application form was signed by PERSON PERSON , as the applicants\u2019 representative . No powers of attorney were attached to the application . The applicants complained that some of them had sustained bullet wounds and some of their relatives had been killed , but none of them referred , either expressly or in substance , to any other complaints as a result of other types of injury sustained .","Following the ORG \u2019s request on DATE the ORG representative submitted powers of attorney signed on DATE by all the initial applicants , including Mr PERSON and Ms Ana Ciubotaru . In respect of Mr PERSON , Mr PERSON submitted CARDINAL powers of attorney bearing his name , CARDINAL of them signed however by Ms PERSON , whose name does not appear on any of the other powers of attorney . Moreover , PERSON PERSON name and\/or signature were not present on any of the powers of attorney submitted before the Court . In addition , one of the powers of attorney had been filled in and signed by PERSON .","On DATE the ORG received CARDINAL sets of application forms which contained complaints identical to the ones mentioned in the first application form submitted by the applicants . Each application form bears the name of a different applicant , as follows : PERSON PERSON , PERSON Ovidiu Ciubotaru , Ms PERSON , Mr PERSON , Ms PERSON and the organisation PERSON .","The name of PERSON PERSON does not appear on any of the application forms or the powers of attorney submitted by the applicants at any stage of the proceedings before the Court .","Article CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW provides , inter alia , that the breach of the rules concerning the lodging of a complaint before the court renders the complaint null and void . The nullity can not be corrected and can be examined at any stage of the proceedings as well as by the court of its own motion .","Article CARDINAL ( CARDINAL ) of LAW provides that a complaint can be lodged by a person , either on their own behalf or through a representative authorised by a certified mandate attached to the complaint .","The relevant legal provisions , in particular a description of the development of the law concerning complaints against decisions of the prosecutor ( Articles CARDINAL and CARDINAL of LAW introduced by PERSON no . ORG applicable from DATE ) , are set forth in the judgment of PERSON GPE ( ( no . CARDINAL ) , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) .","Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of Emergency Ordinance no . CARDINAL\/CARDINAL on combating discrimination provides that nongovernmental organisations involved in the protection of human rights , or justifying a legitimate interest in combating discrimination , have legal standing to initiate proceedings if the discrimination occurs in their field of activity and targets a community or a group of people . They also have legal standing in cases where discrimination targets an individual at the latter \u2019s request ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-111399","languageisocode":"ENG","respondent":"ITA","branch":"GRANDCHAMBER","date":2012,"docname":"CASE OF CENTRO EUROPA 7 S.R.L. AND DI STEFANO v. ITALY","importance":1,"conclusion":"Preliminary objection allowed (Article 35-3 - Ratione personae);Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Corneliu B\u00eersan;Dean Spielmann;Elisabet Fura;Elisabeth Steiner;Fran\u00e7oise Tulkens;Guido Raimondi;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Linos-Alexandre Sicilianos;Nona Tsotsoria","text":["The first applicant , ORG CARDINAL S.r.l . ( \u201c the applicant company \u201d ) , is a limited liability company operating in the television - broadcasting sector , with its registered office in GPE . The second applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He is the statutory representative of the applicant company .","By a ministerial decree of DATE , the appropriate authorities granted ORG CARDINAL S.r.l . a licence for nationwide terrestrial television broadcasting in accordance with PERSON no . PERSON ( see paragraphs CARDINAL below ) , authorising it to install and operate an analogue television network . The licence specified that the applicant company was entitled to CARDINAL frequencies covering PERCENT of national territory . As regards the allocation of the frequencies , the licence referred to the national frequency - allocation plan , adopted on DATE . It indicated that the installations should be brought into line with the requirements of the \u201c assignment plan \u201d ( piano di assegnazione ) within DATE and that the measures taken to that end should conform to the adjustment programme ( programma di adeguamento ) drawn up by ORG ( PERSON per le garanzie nelle comunicazioni \u2013 AGCOM ) in conjunction with ORG ( \u201c the Ministry \u201d ) . It appears from the PERSON judgment no . CARDINAL of CARDINAL DATE ( see paragraph CARDINAL below ) that , under the terms of the licence , the allocation of frequencies was deferred until such time as the authorities had adopted the adjustment programme , on the basis of which the applicant company should have upgraded its own installations . The adjustment programme should , in turn , have taken into account the requirements of the national frequency - allocation plan . However , the plan was not implemented . A succession of transitional schemes that benefited existing channels were applied at national level , with the result that , even though it had a licence , the applicant company was unable to broadcast until DATE as it had not been allocated any frequencies .","The applicant company , through its statutory representative , made a number of applications to the administrative courts .","In DATE the applicant company served formal notice on the Ministry to allocate frequencies to it . In a note of DATE , the ORG refused its request .","In DATE the applicant company lodged an application with ORG against ORG and ORG ( a network of NORP television channels controlled by ORG ) , complaining that the authorities had not allocated it any broadcasting frequencies . The application was also directed against ORG because the PERSON channel had been authorised to broadcast on frequencies that should have been transferred to the applicant company .","On DATE ORG found in favour of the applicant company , holding that the authorities were required either to allocate the frequencies or to revoke the licence . Accordingly , it declared the note of DATE void .","ORG appealed to the Consiglio di Stato . In judgment no . CARDINAL of CARDINAL DATE , the PERSON dismissed the appeal and upheld ORG judgment . It noted that no deadline had been set in the licence for the authorities to adopt the adjustment programme drawn up by ORG in conjunction with the ORG , but that the applicant company had been given DATE to make improvements to its installations . Accordingly , the Consiglio di Stato found that the adjustment programme should have been approved promptly .","The Consiglio di Stato added that ORG had to give a decision on the applicant company \u2019s request to be allocated frequencies , in accordance with a judgment delivered in the meantime by ORG ( DATE see paragraphs CARDINAL - CARDINAL below ) .","On DATE the applicant company , because it had still not obtained the frequencies , brought proceedings against ORG in the PERSON , complaining that the judgment of DATE had not been executed .","On DATE the Ministry extended the validity of the licence granted in DATE until the analogue switch - off date and allocated ORG CARDINAL S.r.l . a single channel with effect from DATE .","The PERSON consequently held in judgment no . CARDINAL of DATE that ORG had properly executed its judgment of CARDINAL DATE .","On DATE the applicant company brought a further application in ORG , arguing that the decree of DATE by which the frequencies had been allocated was insufficient in that , contrary to the terms of the licence , it concerned a single channel that did not cover PERCENT of national territory . In its application the company sought the annulment of the decree and an award of damages .","On DATE the applicant company signed an agreement with ORG ( the former ORG ) , which undertook to assign to it additional frequencies in accordance with the terms of the licence .","On DATE , pursuant to CARDINAL of the clauses of that agreement , the applicant company asked for the proceedings pending before ORG to be struck out .","On DATE the applicant company applied to ORG to restore the case to its list . It sought the annulment of the decree of DATE by which the frequencies had been allocated , and an award of damages . It argued that the administrative authorities had not complied fully with their obligation to allocate additional frequencies and had failed to observe the agreement of CARDINAL DATE and the decision of DATE .","Paragraph CARDINAL of the agreement in question stated :","\u201c ORG S.r.l . undertakes to request , by DATE , the striking out of application no . CARDINAL pending before ORG , to allow it to lapse for failure to submit a fresh application to schedule a hearing within the statutory time - limit and , by DATE , to waive the claims for compensation brought in that application , provided that , by the date on which the case lapses , this agreement , the decision allocating the additional frequencies and the decision of DATE have not in the meantime become invalid .","The ORG , for its part , undertakes to comply fully with its obligation to allocate additional frequencies , and with this agreement and the decision of DATE . Should it fail to do so , ORG CARDINAL and the opposing authorities shall regain full possession of their respective procedural prerogatives . In the event that the assignment of the additional frequencies becomes invalid , it is specified that ORG CARDINAL S.r.l . may reactivate application no . PERSON only if it would be impossible in this situation for LOC Way ORG . to operate CARDINAL or more of the installations mentioned in Technical Attachment A. \u201d","The proceedings are currently pending before ORG .","In the meantime , on DATE , while its initial application was still pending before ORG , the applicant company had lodged a further application with the same court , seeking in particular an acknowledgment of its entitlement to have the frequencies allocated and compensation for the damage sustained .","In a judgment of DATE , ORG dismissed the application , holding in particular that the applicant company had only a legitimate interest ( interesse legittimo ) , that is , an individual position indirectly protected as far as was consistent with the public interest , and not a personal right ( diritto soggettivo ) to be allocated frequencies for analogue terrestrial television broadcasting .","The applicant company appealed to the Consiglio di Stato , arguing that , since it had been granted a licence by the appropriate authorities , it did in fact have a personal right . In particular , it contended that Legislative Decree no . CARDINAL\/CARDINAL and Law no . CARDINAL\/CARDINAL did not comply with Community legislation ( see paragraphs CARDINAL below ) .","On DATE the PERSON decided to restrict its examination to the applicant company \u2019s claim for damages and not to rule at that stage on the request for allocation of frequencies .","It nevertheless observed that the failure to allocate frequencies to ORG . had been due to essentially legislative factors .","It noted that section CARDINAL(CARDINAL ) of PERSON no . PERSON ( see paragraph CARDINAL below ) enabled the \u201c de facto occupants \u201d of radio frequencies authorised to operate under the previous system to continue broadcasting until new licences were awarded or applications for new licences were rejected , and in any event not after DATE .","It further noted that section CARDINAL(CARDINAL ) of PERSON no . PERSON ( see paragraph CARDINAL below ) authorised the continuation of such broadcasts by entrusting ORG with the task of setting a deadline , on the sole condition that programmes were to be broadcast simultaneously on terrestrial frequencies and by satellite or cable . It pointed out that , in the event of failure by ORG to set a deadline , ORG had set CARDINAL DATE as the date by which programmes broadcast by the \u201c over - quota channels \u201d ( that is , existing national television channels exceeding the concentration restrictions imposed by section PERSON ) of PERSON no . ORG ) were to be broadcast by satellite or cable only , with the result that the frequencies to be allocated to licence holders such as the applicant company would have been freed up . The PERSON observed , however , that the deadline had not been complied with following the intervention of the national legislature : section CARDINAL of Legislative Decree no . CARDINAL , which had subsequently become PERSON no . CARDINAL\/CARDINAL ( see paragraph CARDINAL below ) , had prolonged the activities of the over - quota channels pending the completion of an ORG investigation into the development of digital television channels . It added that section CARDINAL(CARDINAL ) of PERSON no . PERSON ( see paragraph CARDINAL below ) had subsequently , by a general authorisation mechanism , extended the possibility for over - quota channels to continue broadcasting on terrestrial frequencies until the national frequency - allocation plan for digital television was implemented , with the result that those channels had not been required to free up the frequencies intended for allocation to licence holders , such as the applicant company .","Law no . DATE had therefore had the effect , according to the Consiglio di Stato , of blocking the frequencies intended for allocation to holders of analogue licences and of preventing new operators from participating in digital television trials .","That being so , the Consiglio di Stato decided to stay the proceedings and requested the ECJ to give a preliminary ruling on the interpretation of the provisions , in LAW , on freedom to provide services and competition , Directive CARDINAL ( \u201c the Framework Directive \u201d ) , Directive CARDINAL ( \u201c the Authorisation Directive \u201d ) , Directive CARDINAL ( \u201c the Competition Directive \u201d ) and LAW , in so far as LAW referred to it .","On DATE the ECJ gave judgment . It declared CARDINAL questions inadmissible , holding that it did not have sufficient information to give a ruling on them .","With regard to the question concerning LAW , the ECJ concluded as follows :","\u201c By its first question , the national court asks the ORG , essentially , to state whether the provisions of LAW ] , in so far as LAW refers thereto , preclude , in television - broadcasting matters , national legislation the application of which makes it impossible for an operator holding rights , such as ORG , to broadcast without the grant of broadcasting radio frequencies .","...","By those questions , the national court is thus seeking to determine whether there are infringements of Community law for the purpose of ruling on an application for compensation for the losses flowing from such infringements .","... Article CARDINAL ORG and , from the date on which they became applicable , LAW , LAW , the second sub - paragraph of LAW and LAW must be interpreted as precluding , in television - broadcasting matters , national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective , transparent , non - discriminatory and proportionate criteria .","That answer , by itself , thus enables the national court to rule on the application made by ORG for compensation for the losses suffered .","Consequently , regard being had to the ORG \u2019s answer to the second , fourth and fifth questions , it is not necessary to rule on the first and third questions . \u201d","As to the merits , the ECJ observed that the existing channels had been authorised to pursue their broadcasting activities as a result of a series of measures by the national legislature , to the detriment of new broadcasters which nevertheless held licences for terrestrial television broadcasting . It noted that these measures had entailed the successive application of transitional arrangements structured in favour of the incumbent networks , and that this had had the effect of preventing operators without broadcasting frequencies , such as the applicant company , from accessing the television - broadcasting market even though they had a licence ( granted , in the applicant company \u2019s case , in DATE ) . The ECJ held :","\u201c ... PERSON no . CARDINAL\/CARDINAL ... does not merely allocate to the incumbent operators a priority right to obtain radio frequencies , but reserves them that right exclusively , without restricting in time the privileged position assigned to those operators and without providing for any obligation to relinquish the radio frequencies in breach of the threshold after the transfer to digital television broadcasting . \u201d","The ECJ added that the application of the transitional schemes was not in accordance with the new common regulatory framework ( ORG ) , which implemented provisions of LAW , in particular those on freedom to provide services in the area of electronic communications networks and services . It observed in that connection that several provisions of the ORG stated that the allocation and assignment of frequencies had to be based on objective , transparent , non - discriminatory and proportionate criteria . In the ECJ \u2019s view , such criteria had not been applied in the present case , since the status of the existing channels had not been amended under the transitional schemes and they had continued their broadcasting activities to the detriment of operators such as the applicant company , which , because it had not been allocated any broadcasting frequencies , had been unable to exercise its rights and make use of its licence .","The ECJ therefore reached the following conclusions :","\u201c ... it must be stated that , in the area of television broadcasting , freedom to provide services , as enshrined in LAW ORG and implemented in this area by the ORG , requires not only the grant of broadcasting authorisations , but also the grant of broadcasting radio frequencies .","An operator can not exercise effectively the rights which it derives from Community law in terms of access to the television - broadcasting market without broadcasting radio frequencies .","...","Article CARDINAL ORG and , from the date on which they became applicable , LAW and of ORG on a common regulatory framework for electronic communications networks and services ( Framework Directive ) , LAW , the second subparagraph of LAW and LAW CARDINAL of ORG and of ORG on the authorisation of electronic communications networks and services ( Authorisation Directive ) , and ORG Directive CARDINAL of DATE on competition in the markets for electronic communications networks and services must be interpreted as precluding , in television - broadcasting matters , national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective , transparent , non - discriminatory and proportionate criteria . \u201d","In decision no . CARDINAL of DATE , the PERSON concluded that it could not allocate frequencies in the government \u2019s place or compel the government to do so . It ordered the government to deal with the applicant company \u2019s request for frequencies in a manner consistent with the criteria laid down by the ECJ . It made the following observations in particular :","\u201c The adoption by the authorities of a specific measure relates more to issues of performance and implementation than to damages : in cases involving an unlawful refusal to take an administrative measure that has been requested , the adoption of the measure does not amount to compensation , but rather to the performance of an obligation incumbent upon the authorities , unless the private party concerned has sustained any damage . \u201d","With regard to the request for the allocation of frequencies , the Consiglio di Stato observed :","\u201c Where legitimate interests are at stake , however , it is not possible to envisage a specific means of redress because inaction , a delay or an unlawful refusal will always have an impact on a situation that was or remains unsatisfactory , with the result that there is nothing to restore ; the issue in relation to such interests concerns the practical implementation of any ruling setting aside the measure complained of .","...","Applying these principles to the present case , the PERSON finds that the appellant \u2019s request for an order requiring the authorities to allocate the network or frequencies is inadmissible . \u201d","The PERSON deferred until DATE its final decision on the payment of compensation to the applicant company , holding that it was necessary to wait for the relevant regulations to be passed by the government before assessing the amount .","The PERSON requested both parties to comply with the following requirements by DATE . ORG was , firstly , to specify what frequencies had been available following the public tendering procedures in DATE and why they had not been allocated to the applicant company and , secondly , to justify its assertion that the licence granted to the applicant company had expired in DATE .","The applicant company , for its part , was asked by the Consiglio di Stato to submit a report on its activities DATE , and also to explain why it had not taken part in the DATE public tendering procedure for the allocation of frequencies .","The PERSON also asked ORG to explain why the national frequency - allocation plan for terrestrial television broadcasting had never been implemented . Lastly , it dismissed the applicant company \u2019s request for the suspension of the provisional authorisation granted to a channel belonging to the ORG group ( PERSON ) for the use of the frequencies .","In its reply , ORG explained to the Consiglio di Stato that the national frequency - allocation plan had been implemented only on DATE . According to ORG , this delay was due to several factors . Firstly , the legal situation was complicated because it was difficult to identify the available broadcasting frequencies as a result of the court decisions in which the over - quota channels had been allowed to continue broadcasting . In addition , the transitional arrangements introduced by LAW no . PERSON ( see paragraphs CARDINAL - CARDINAL below ) , which had allowed the channels in question to continue broadcasting in analogue mode , had prevented the plan from being implemented on account of the incompatibility between the interests of the channels likely to be allowed to broadcast under the plan and the interests of the channels that were legally entitled to continue their existing operations .","The applicant company submitted an expert valuation by the commercial bank PERSON assessing the damage sustained at MONEY ( ORG ) . The valuation was based on the profits achieved by PERSON , the over - quota channel which should have relinquished the frequencies allocated to the applicant company .","In a judgment of DATE , the PERSON , on the basis of LAW ( see paragraph CARDINAL below ) , ordered the Ministry to pay the applicant company the sum of EUR CARDINAL in compensation . It observed that , over DATE , ORG had acted negligently by having granted ORG CARDINAL S.r.l . a licence without assigning it any broadcasting frequencies .","The PERSON found that there was a causal link between the conduct of the administrative authorities and the damage alleged , and that the award of the licence to ORG . had not conferred on it the immediate right to pursue the corresponding economic activity ; accordingly , the compensation should be calculated on the basis of the legitimate expectation of being allocated the frequencies by the appropriate authorities .","In the opinion of the Consiglio di Stato , the fact that the frequencies had not been allocated until DATE was attributable to the authorities . Damage had thus been sustained as a result of an unlawful act for which the authorities incurred non - contractual liability , concerning both the breach of legitimate expectations and the delay in allocating the frequencies . The fact that the authorities had launched a public tendering procedure for the frequencies in DATE , although the situation in the broadcasting sector had not been clarified and there were outstanding technical issues , had been \u201c risky \u201d . The PERSON considered that the question of redress for the damage sustained by the applicant company should take this context into account . The authorities\u2019 conduct had not been characterised by \u201c significant gravity \u201d ( notevole gravit\u00e0 ) and the unlawful act was thus attributable to \u201c negligent \u201d and not intentional conduct on their part .","The PERSON added that the pecuniary damage should be assessed with effect from DATE , since ORG had ruled that the \u201c transition period \u201d after which legislation would have to be passed to allow licence holders to start broadcasting had expired on DATE ( see paragraph CARDINAL below ) . As to the criteria for determining the damages to be awarded , the PERSON pointed out that , as regards the losses sustained , the applicant company had been fully aware , at the time of the call for tenders , from being allocated had been largely foreseeable . Accordingly , the applicant company should have known that it was unlikely to obtain the frequencies , at least in the short term . In addition , it could have purchased the frequencies under LAW no . CARDINAL\/CARDINAL ( see paragraph CARDINAL below ) .","Having regard to the above considerations , the Consiglio di Stato , without ordering an expert valuation , decided to award the applicant company ORG CARDINAL,CARDINAL for the losses sustained . As regards loss of earnings , it found that , from DATE , the applicant company could have achieved profits but had been unable to do so because of the delay in allocating the frequencies ; the amount could be assessed at ORG CARDINAL,CARDINAL . It refused to take into account the expert valuation submitted by the applicant company and held that it was unlikely that the company would have purchased shares in the market , even in the event that the over - quota channels had relinquished the frequencies . In the PERSON view , the comparison between the applicant company and the CARDINAL leading operators ( ORG and PERSON ) was unjustified , especially as it did not take into account the other nationwide operator ( La CARDINAL ) , which , although it had greater economic power than the applicant company , was nevertheless operating at a loss .","In judgment no . CARDINAL\/CARDINAL the Constitutional Court , on the basis of LAW , reaffirmed the principle of the monopoly enjoyed by the ORG television corporation ORG on public - interest grounds . It held that the technical limitations on the number of frequencies justified the monopoly , and also laid down the requirement of objectivity and impartiality in public - service broadcasting .","Law no . CARDINAL of DATE ( Nuove norme in materia di diffusione radiofonica e televisiva ) transferred control of public - service broadcasting from the executive to the legislature . A bicameral parliamentary committee was set up with responsibility for the general management and supervision of radio and television services . ORG \u2019s board of management was then appointed by ORG . A third channel of the ORG network was launched in DATE , with particular emphasis on regional programmes .","In judgment no . CARDINAL of DATE , ORG declared unconstitutional the provisions of PERSON no . ORG establishing a monopoly or oligopoly on local broadcasting . In the light of that decision , commercial operators were authorised to run local television channels .","The allocation and voluntary redistribution of local frequencies subsequently encouraged the development of large regional or national operators , including the ORG group . The group \u2019s first channel was ORG , which started broadcasting nationwide in DATE ; by DATE , having taken over CARDINAL other channels ( ORG and GPE ) , PERSON had managed , together with ORG , to establish a \u201c duopoly \u201d of public and private operators .","Law no . CARDINAL of DATE , entitled \u201c Provisions governing the public and private broadcasting system \u201d ( GPE sistema radiotelevisivo pubblico e privato ) , transferred the power to appoint members of ORG \u2019s board from the parliamentary committee to ORG and the ORG .","In judgment no . CARDINAL of DATE , ORG declared unconstitutional the provisions allowing the CARDINAL channels controlled by ORG ( ORG , ORG and GPE ) to occupy a dominant position . It held that the provision whereby the same operator could hold several television - broadcasting licences on condition that it did not exceed PERCENT of the total number of national channels \u2013 that is , CARDINAL channels in DATE was not sufficient to prevent concentration of television channels , and was accordingly in breach of LAW in that it did not make it possible to guarantee the plurality of information sources . ORG considered that the existence of legislation to prevent dominant positions from being established was an essential requirement to justify the ORG \u2019s relinquishment of its monopoly on broadcasting . The creation of such dominant positions in this sector would not only have had the effect of changing the rules on competition but would also have led to the emergence of an oligopoly and would have breached the fundamental principle of plurality of information sources . ORG thus held that the mere coexistence of a ORG - owned company and private companies ( a mixed system ) within the broadcasting sector was not sufficient to secure respect for the right to receive information from several competing sources . As it had previously stated in decision no . CARDINAL\/CARDINAL , it reaffirmed that a ORG - owned company could not by itself ensure a balance precluding the establishment of a dominant position in the private sector .","On DATE , in a referendum , the NORP electorate rejected by a majority ( PERCENT ) a proposal to amend existing legislation by prohibiting a private entrepreneur from controlling CARDINAL television channel .","Law no . CARDINAL of DATE , which came into force on CARDINAL DATE , established ORG . Section PERSON ) of the PERSON imposed concentration restrictions in the television - broadcasting sector , prohibiting the same operator from holding licences to broadcast nationwide on PERCENT of the television channels operating on terrestrial frequencies .","Section CARDINAL(CARDINAL ) provided that operators authorised to broadcast under the previous legal framework could continue to transmit their programmes at national and local level until new licences were awarded or applications for new licences were rejected , but in any event not after DATE .","Section CARDINAL(CARDINAL ) provided that ORG was to adopt , by DATE at the latest , a national frequency - allocation plan for television broadcasting , on the basis of which new licences were to be awarded by CARDINAL DATE at the latest .","In decision no . CARDINAL of DATE , ORG adopted the national frequency - allocation plan ; subsequently , in decision no . CARDINAL of DATE , it adopted regulations on the conditions and procedure for awarding licences for analogue terrestrial television broadcasting .","Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL introduced a transitional scheme whereby existing national television channels exceeding the concentration restrictions imposed by section PERSON ) ( known as \u201c over - quota channels \u201d ) could continue broadcasting on a temporary basis on terrestrial frequencies after DATE , provided that they complied with the obligations imposed on channels holding licences and that their programmes were broadcast simultaneously on satellite or cable .","Section CARDINAL(CARDINAL ) of the same PERSON entrusted ORG with the task of determining the date by which , in view of the real and significant increase in viewers of cable or satellite television , the over - quota channels were to broadcast by satellite or cable only , thus relinquishing terrestrial frequencies .","On DATE the ORG delivered a judgment concerning section CARDINAL ) of PERSON no . CARDINAL . It held that the transition period laid down in that provision was acceptable , given that at the time the law was passed the alternative means of transmission in GPE could not be said to have been competitive in relation to traditional analogue broadcasting , hence the need to introduce a transition period to encourage the development of digital broadcasting . However , ORG declared unconstitutional the failure to specify a fixed deadline for the expiry of the transition period . Referring to the technical conclusions set out in ORG \u2019s decision no . CARDINAL , resulting from a study of the number of cable and satellite television viewers in GPE , it ruled that DATE was a reasonable date for the expiry of the transition period .","ORG held , in particular :","\u201c ... the present NORP private television system operating at national level in analogue mode has grown out of situations of simple de facto occupation of frequencies ( operation of installations without licences and authorisations ) , and not in relation to any desire for greater pluralism in the distribution of frequencies and for proper planning of terrestrial broadcasting ... This de facto situation does not therefore guarantee respect for external pluralism of information , which is an \u2018 essential requirement\u2019 laid down by the relevant constitutional case - law ... In this context , given the persistence ( and aggravation ) of a situation which was ruled illegal in judgment no . CARDINAL and the continued operation of channels considered \u2018 over ORG by the legislature in DATE , a deadline must be set that is absolutely certain , definitive and hence binding , in order to ensure compatibility with constitutional rules ... \u201d","Legislative Decree no . CARDINAL of DATE , which , as amended , became PERSON no . CARDINAL of DATE , authorised operators lawfully engaged in television broadcasting on terrestrial frequencies to continue broadcasting until the national frequency - allocation plan for digital television was implemented .","Section CARDINAL provided that operators which were not currently broadcasting but had been awarded a licence could purchase broadcasting installations and connections that were in lawful use on the date on which LAW came into force .","Section CARDINAL bis provides :","\u201c In order to ensure the opening of the digital terrestrial television market , operators that are lawfully engaged in digital television broadcasting , via satellite or cable , may conduct trials by means of simultaneous repeats of programmes that have already been broadcast on analogue frequencies . \u201d","Section CARDINAL of Legislative Decree no . CARDINAL of DATE , which , as amended , became PERSON no . CARDINAL of DATE , authorised the over - quota channels to continue broadcasting on analogue and digital television networks pending the completion of an investigation into the development of digital television channels .","Law no . CARDINAL of DATE ( known as the \u201c LAW \u201d ) specified the different stages for the launch of digital broadcasting on terrestrial frequencies .","Section CARDINAL of the PERSON provides :","\u201c ( CARDINAL ) Pending the implementation of the national frequency - allocation plan for digital television , operators engaged in television - broadcasting activities on any basis at national or local level which fulfil the conditions necessary to obtain authorisation for digital terrestrial broadcasting trials , in accordance with ... Legislative Decree no . CARDINAL [ of DATE ] , which , as amended , has become PERSON no . CARDINAL [ of DATE ] , may conduct such trials , including by simultaneous repeats of programmes already broadcast on analogue frequencies , until the conversion of the networks has been completed , and may apply , from the date of entry into force of this PERSON , ... for the licences and authorisations necessary for digital terrestrial broadcasting .","( CARDINAL ) ORG broadcasting trials may be conducted using installations lawfully broadcasting on analogue frequencies on the date of entry into force of this PERSON .","( CARDINAL ) NORP In order to allow digital networks to be set up , transfers of installations or branches of undertakings between operators lawfully engaged in television broadcasting at national or local level shall be authorised , on condition that the acquisitions are intended for digital broadcasting .","...","( CARDINAL ) With effect from the date of entry into force of this PERSON , a licence to operate a television channel shall be granted , upon request , to persons lawfully engaged in television broadcasting by virtue of a licence or the general authorisation provided for in subsection ( CARDINAL ) above , where they can show that they have attained coverage of PERCENT of the population or of the local catchment area .","...","( CARDINAL ) NORP In order to facilitate the conversion of the analogue system to the digital system , the broadcasting of television programmes shall be carried on through installations lawfully operating on the date of entry into force of this PERSON ... \u201d","DATE . AGCOM approved a \u201c first level \u201d frequency - allocation plan for national and regional channels on DATE , and the \u201c integrated plan \u201d \u2013 supplementing the \u201c first - level plan \u201d with a \u201c second - level plan \u201d ( allocation of frequencies to local channels ) DATE on DATE .","This provision reads as follows :","\u201c Any unlawful act which causes damage to another shall render the perpetrator liable in damages under civil law . \u201d","The relevant parts of this Recommendation , adopted by ORG on DATE at the ORG meeting of ORG , read as follows .","\u201c ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,","...","Stressing also that the media , and in particular the public - service broadcasting sector , should enable different groups and interests in society \u2013 including linguistic , social , economic , cultural or political minorities \u2013 to express themselves ;","Noting that the existence of a multiplicity of autonomous and independent media outlets at the national , regional and local levels generally enhances pluralism and democracy ;","Recalling that the political and cultural diversity of media types and contents is central to media pluralism ;","Stressing that GPE should promote political and cultural pluralism by developing their media policy in line with LAW , which guarantees freedom of expression and information , and with due respect for the principle of independence of the media ;","...","Noting that there are already some cases of bottlenecks in the area of the new communications technologies and services , such as control over conditional access systems for digital television services ;","Noting also that the establishment of dominant positions and the development of media concentrations might be furthered by the technological convergence between the broadcasting , telecommunications and computer sectors ;","...","Convinced that transparency as regards the control of media enterprises , including content and service providers of the new communications services , can contribute to the existence of a pluralistic media landscape ;","...","Recalling also the provisions on media pluralism contained in LAW to LAW ;","Bearing in mind the work conducted within the framework of ORG and other international organisations in the area of media concentrations and pluralism ,","Recommends that the governments of the member States :","i. examine the measures contained in the appendix to this Recommendation and consider the inclusion of these in their domestic law or practice where appropriate , with a view to promoting media pluralism ;","ii . evaluate on a regular basis the effectiveness of their existing measures to promote pluralism and\/or anti - concentration mechanisms and examine the possible need to revise them in the light of economic and technological developments in the media field . \u201d","The relevant parts of this Recommendation , adopted by ORG on DATE at the CARDINALth meeting of ORG , read as follows .","\u201c ...","Recalling that the existence of a wide variety of independent and autonomous media , permitting the reflection of diversity of ideas and opinions , as stated in its Declaration on the freedom of expression and information of DATE , is important for democratic societies ;","Bearing in mind Resolution no . CARDINAL on the future of public - service broadcasting adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) , and recalling its Recommendation No R ( CARDINAL ) CARDINAL on the guarantee of the independence of public - service broadcasting ;","Stressing the specific role of the broadcasting media , and in particular of public - service broadcasting , in modern democratic societies , which is to support the values underlying the political , legal and social structures of democratic societies , and in particular respect for human rights , culture and political pluralism ;","...","Noting that in parallel with the multiplication of the number of channels in the digital environment , concentration in the media sector is still accelerating , notably in the context of globalisation , and recalling to the member GPE the principles enunciated in Recommendation no . R ( CARDINAL ) CARDINAL on measures to promote media pluralism , in particular those concerning media ownership rules , access to platforms and diversity of media content ;","...","Recommends that the governments of the member GPE , taking account of the principles set out in the appendix :","a. create adequate legal and economic conditions for the development of digital broadcasting that guarantee the pluralism of broadcasting services and public access to an enlarged choice and variety of quality programmes , including the maintenance and , where possible , extension of the availability of transfrontier services ;","b. protect and , if necessary , take positive measures to safeguard and promote media pluralism , in order to counterbalance the increasing concentration in this sector ;","... \u201d","The relevant parts of this Recommendation , adopted by ORG on DATE at the ORG meeting of ORG , read as follows .","\u201c ...","Recalling LAW ( ETS No . CARDINAL ) , which guarantees freedom of expression and freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers ;","Recalling its Declaration on the freedom of expression and information , adopted on DATE , which stresses that a free flow and wide circulation of information of all kinds across frontiers is an important factor for international understanding , for bringing peoples together and for the mutual enrichment of cultures ;","Recalling its ORG on the independence and functions of regulatory authorities for the broadcasting sector and its Explanatory Memorandum , which stress the importance of the political , financial and operational independence of broadcasting regulators ;","Recalling the opportunities provided by digital technologies as well as the potential risks related to them in modern society as stated in its Recommendation NORP on measures to promote the democratic and social contribution of digital broadcasting ;","Recalling its Recommendation No . R ( CARDINAL ) CARDINAL on measures to promote media pluralism and its Recommendation No . R ( CARDINAL ) CARDINAL on measures to promote media transparency , the provisions of which should jointly apply to all media ;","Noting that , since the adoption of Recommendations No . R ( CARDINAL ) CARDINAL and No . R ( CARDINAL ) CARDINAL , important technological developments have taken place , which make a revision of these texts necessary in order to adapt them to the current situation of the media sector in LOC ;","...","Reaffirming that media pluralism and diversity of media content are essential for the functioning of a NORP society and are the corollaries of the fundamental right to freedom of expression and information as guaranteed by LAW ;","Considering that the demands which result from LAW will be fully satisfied only if each person is given the possibility to form his or her own opinion from diverse sources of information ;","Recognising the crucial contribution of the media in fostering public debate , political pluralism and awareness of diverse opinions , notably by providing different groups in society \u2013 including cultural , linguistic , ethnic , religious or other minorities DATE with an opportunity to receive and impart information , to express themselves and to exchange ideas ;","...","Reaffirming that , in order to protect and actively promote the pluralistic expressions of ideas and opinions as well as cultural diversity , member GPE should adapt the existing regulatory frameworks , particularly with regard to media ownership , and adopt any regulatory and financial measures called for in order to guarantee media transparency and structural pluralism as well as diversity of the content distributed ;","...","Bearing in mind that national media policy may also be oriented to preserve the competitiveness of domestic media companies in the context of the globalisation of markets and that the transnational media concentration phenomena can have a negative impact on diversity of content ,","Recommends that governments of member PERSON :","i. consider including in national law or practice the measures set out below ;","ii . evaluate at national level , on a regular basis , the effectiveness of existing measures to promote media pluralism and content diversity , and examine the possible need to revise them in the light of economic , technological and social developments on the media ;","iii . exchange information about the structure of media , domestic law and studies regarding concentration and media diversity .","Recommended measures","I. Measures promoting structural pluralism of the media","General principle","Member GPE should seek to ensure that a sufficient variety of media outlets provided by a range of different owners , both private and public , is available to the public , taking into account the characteristics of the media market , notably the specific commercial and competition aspects .","CARDINAL.CARDINAL . Where the application of general competition rules in the media sector and access regulation are not sufficient to guarantee the observance of the demands concerning cultural diversity and the pluralistic expressions of ideas and opinions , member GPE should adopt specific measures .","...","When adapting their regulatory framework , member GPE should pay particular attention to the need for effective and manifest separation between the exercise of political authority or influence and control of the media or decision - making as regards media content .","...","NORP Other media contributing to pluralism and diversity","Member GPE should encourage the development of other media capable of making a contribution to pluralism and diversity and providing a space for dialogue . These media could , for example , take the form of community , local , minority or social media . ...","...","II . Measures promoting content diversity","...","Allocation of broadcasting licences and must carry \/ must offer rules","Member GPE should consider introducing measures to promote and to monitor the production and provision of diverse content by media organisations . In respect of the broadcasting sector , such measures could be to require in broadcasting licences that a certain volume of original programmes , in particular as regards news and current affairs , is produced or commissioned by broadcasters .","Member GPE should consider the introduction of rules aimed at preserving a pluralistic local media landscape , ensuring in particular that syndication , understood as the centralised provision of programmes and related services , does not endanger pluralism .","Member GPE should envisage , where necessary , adopting must - carry rules for other distribution means and delivery platforms than cable networks . Moreover , in the light of the digitisation process \u2013 especially the increased capacity of networks and proliferation of different networks \u2013 member GPE should periodically review their must - carry rules in order to ensure that they continue to meet well - defined general interest objectives . Member GPE should explore the relevance of a must - offer obligation in parallel to the must - carry rules so as to encourage public - service media and principal commercial media companies to make their channels available to network operators that wish to carry them . Any resulting measures should take into account copyright obligations . \u201d","This resolution , adopted by ORG on DATE , reads as follows .","\u201c CARDINAL . GPE is a founding member of ORG and strongly supports the ideals for which it stands . ORG is therefore concerned by the concentration of political , commercial and media power in the hands of CARDINAL person , Prime Minister PERSON .","ORG can not accept that this anomaly be minimised on the grounds that it only poses a potential problem . A democracy is judged not only by its day - to - DATE operations but by the principles the country upholds with regard to its own citizens and internationally . The ORG recalls that , in accordance with LAW and the case - law of ORG have a duty to protect and , when necessary , take positive measures to safeguard and promote media pluralism .","The Assembly deplores the fact that several consecutive NORP governments DATE have failed to resolve the problem of conflict of interest and that appropriate legislation has not yet been adopted by the present ORG . It disagrees that the leading principle of the Frattini Bill currently under consideration \u2013 that only managers , not owners , should be held responsible DATE provides a genuine and comprehensive solution to the conflict of interest concerning PERSON .","Through GPE , GPE \u2019s main commercial communications and broadcasting group , and CARDINAL of the largest in the world , Mr PERSON owns CARDINAL of the nationwide broadcasting in the country . His role as head of government also puts him in a position to influence indirectly the public broadcasting organisation , ORG , which is ORG \u2019s main competitor . As PERSON and PERSON command together PERCENT of the television audience and over DATE of the resources in this sector , Mr PERSON exercises unprecedented control over the most powerful media in GPE .","This duopoly in the television market is in itself an anomaly from an antitrust perspective . The status quo has been preserved even though legal provisions affecting media pluralism have twice been declared anti - constitutional and the competent authorities have established the dominant positions of ORG and the CARDINAL television channels of ORG . An illustration of this situation was a recent decree of the Prime Minister , approved by ORG , which allowed the third channel of ORG and ORG \u2019s PERSON to continue their operations in violation of the existing antitrust limits until the adoption of new legislation . Competition in the media sector is further distorted by the fact that the advertising company of ORG , has a dominant position in television advertising . ORG the continued exclusion of a potential national broadcaster , LOC CARDINAL , winner of a DATE government tender to broadcast on frequencies occupied by ORG channel , PERSON .","The ORG believes that the newly - adopted \u2018 GPE Law\u2019 on the reform of the broadcasting sector may not effectively guarantee greater pluralism simply through the multiplication of television channels in the course of digitalisation . At the same time , it manifestly allows PERSON to expand even further , as it gives the market players the possibility to have a monopoly in a given sector without ever reaching the antitrust limit in the overall integrated system of communications ( ORG ) . The ORG notes that these concerns led the President of the Republic to oppose the previous version of the law .","The ORG is particularly concerned by the situation of ORG , which is contrary to the principles of independence laid down in ORG DATE ( DATE ) on public - service broadcasting . ORG has always been a mirror of the political system of the country and its internal pluralism has moved from the proportionate representation of the dominant political ideologies in the past to the winner - takes - all attitude reflecting the present political system . The ORG notes with concern the resignations of the President of ORG and of CARDINAL of the most popular journalists in the country in protest against the lack of balanced political representation in ORG and against the political influence over ORG \u2019s programming .","While the printed media in GPE has traditionally provided greater pluralism and political balance than the broadcasting sector , most NORP receive their news through the medium of television . The high cost of newspaper compared to television advertising is having a damaging effect on the NORP printed media . However , the ORG wishes to record its approval of government measures to help small- and medium - sized newspapers and other measures to boost newspaper readership .","The ORG is extremely concerned that the negative image that GPE is portraying internationally because of the conflict of interest concerning PERSON PERSON , could hamper the efforts of ORG aimed at promoting independent and unbiased media in the new democracies . It considers that GPE , as one of the strongest contributors to the functioning of the Organisation , has a particular responsibility in this respect .","The ORG points out that several international bodies , such as the LOC representative on ORG and , most recently , ORG , have expressed concerns similar to its own . It welcomes the measures for safeguarding media pluralism proposed in the ORG resolution on the risks of violation , in ORG and especially in GPE , of freedom of expression and information ( LAW ) of DATE , namely that the protection of media diversity should become a priority of ORG competition law .","The ORG therefore calls on the NORP ORG :","i. to pass as a matter of urgency a law resolving the conflict of interest between ownership and control of companies and discharge of public office , and incorporating penalties for cases where there is a conflict of interest with the discharge of public office at the highest level ;","ii . to ensure that legislation and other regulatory measures put an end to the long - standing practice of political interference in the media , taking into account in particular the Committee of Ministers\u2019 Declaration on freedom of political debate in the media , adopted on DATE ;","iii . to amend LAW in line with the principles set out in Committee of Ministers\u2019 Recommendation No . R ( CARDINAL ) CARDINAL on measures to promote media pluralism , in particular :","a. by avoiding the emergence of dominant positions in the relevant markets within the ORG ;","b. by including specific measures to bring an end to the current ORG duopoly ;","c. by including specific measures to ensure that digitalisation will guarantee pluralism of content .","The ORG calls on ORG :","i. to initiate measures to bring the functioning of ORG into line with ORG Recommendation DATE ( DATE ) on public - service broadcasting , with the declaration of the CARDINALth European Ministerial Conference on Mass Media Policy in GPE and with ORG No . R ( CARDINAL ) CARDINAL on the guarantee of the independence of public - service broadcasting and Rec(CARDINAL)CARDINAL on measures to promote the democratic and social contribution of digital broadcasting ;","ii . to give a positive international example by proposing and supporting initiatives within ORG and ORG aimed at promoting greater media pluralism at NORP level .","The ORG asks ORG to give an opinion on the compatibility of ORG and PERSON with the standards of ORG in the field of freedom of expression and media pluralism , especially in the light of the case - law of ORG . \u201d","ORG opinion , adopted at its CARDINALrd Plenary Session ( DATE ) , reads in its relevant parts as follows .","\u201c ORG of ORG has requested ORG to give an opinion on whether or not the CARDINAL NORP laws on the broadcasting system ( \u2018 the GPE Law\u2019 ) and on the conflict of interest ( \u2018 the PERSON Law\u2019 ) are in conformity with ORG in the fields of freedom of expression and pluralism of the media .","...","While the case - law of ORG does not offer specific guidance on the matter , certain pertinent principles may nonetheless be derived from that case - law : in primis that freedom of expression has a fundamental role in a NORP society , in particular where , through the press , it serves to impart information and ideas of general interest , which the public is moreover entitled to receive , and that the ORG is the ultimate guarantor of pluralism , especially in relation to audio - visual media , whose programmes are often broadcast very widely .","...","Media pluralism is achieved when there is a multiplicity of autonomous and independent media at the national , regional and local levels , ensuring a variety of media content reflecting different political and cultural views . In the ORG \u2019s opinion , internal pluralism must be achieved in each media sector at the same time : it would not be acceptable , for example , if pluralism were guaranteed in the print - media sector , but not in the television CARDINAL . Plurality of the media does not only mean , in the ORG \u2019s view , the existence of a plurality of actors and outlets , it also means the existence of a wide range of media , that is to say different kinds of media .","ORG set out certain tools for promoting media pluralism , which include :","\u2013 a legislative framework establishing limits for media concentration ; the instruments for achieving this include permissible thresholds ( to be measured on the basis of CARDINAL or of a combination of elements such as the audience share or the capital share or revenue limits ) which a single media company is allowed to control in CARDINAL or more relevant markets ;","\u2013 specific media regulatory authorities with powers to act against concentration ;","\u2013 specific measures against vertical integration ( control of key elements of production , broadcasting , distribution and related activities by a single company or group ) ;","\u2013 independence of regulatory authorities ;","\u2013 transparency of the media ;","\u2013 pro - active measures to promote the production and broadcasting of diverse content ;","\u2013 granting , on the basis of objective and non - partisan criteria , within the framework of transparent procedures and subject to independent control , direct or indirect financial support to increase pluralism ;","\u2013 self - regulatory instruments such as editorial guidelines and statutes setting out editorial independence .","In respect of the provisions in the Gasparri Law aiming at protecting media pluralism , the Commission considers at the outset that the mere increase in the number of channels which will be brought about by digital television is not sufficient in itself to guarantee media pluralism . Newly available channels may have very small audiences but with similar amounts of output . Finally , larger companies will enjoy greater purchasing power in a wide range of activities such as programme acquisitions , and will thus enjoy significant advantages over other national content providers .","The Commission considers therefore that the threshold of PERCENT of the channels is not a clear indicator of market share . It should be combined , for instance , with an audience share indicator .","As regards the second threshold set out in LAW , that is PERCENT of the revenue in ORG ) , the Commission considers that ORG certainly reflects a modern trend but should not , at least in this very broad definition , be used already at this stage instead of the \u2018 relevant ORG criterion , as its effect is to dilute the effectiveness of the instruments aimed at protecting pluralism . Indeed , it may allow an individual company to enjoy extremely high degrees of revenue shares in individual markets , whilst at the same time remaining below the PERCENT threshold for the whole sector .","Indeed , the Commission notes that the combined effect of the new framework set out in LAW has relaxed the previous anti - concentration rules whose maximum permissible levels had been exceeded by PERSON and PERSON . PERSON has accordingly been allowed to continue to occupy analogue frequencies .","The Commission considers therefore that the ORG criterion should be replaced by the previously used \u2018 relevant ORG criterion , as is the case in the other NORP countries .","...","As regards the provisions on migration of radio and television broadcasters from analogue to digital frequencies , the ORG has the impression that LAW has taken the approach of attempting to hold back on finding a real solution to the problem of media concentration in the television market until some future point in time and it relies heavily on the point when digitalisation will come into full effect . In the Commission \u2019s view , this approach is not satisfactory , as , if the status quo is maintained , it is likely that PERSON and PERSON will remain the dominant actors in NORP television . In this respect , the ORG recalls that while general anti - trust measures [ are aimed ] against the abuse of dominant positions , in the media sector dominant positions are forbidden as such .","...","In respect of the privatisation of ORG , which should lead to a lesser degree of politicisation of the public broadcaster , the ORG notes that change at ORG will allow for government control over the public broadcaster for an unforeseeable period of time . For as long as the present government stays in office , this will mean that , in addition to being in control of its own CARDINAL national television channels , the Prime Minister will have some control of the CARDINAL public national television channels . ORG expresses concern over the risk that this atypical situation may even strengthen the threat of monopolisation , which might constitute , in terms of the case - law of ORG , an unjustified interference with freedom of expression .","... \u201d","NORP The discussion paper of DATE by the Commissioner for Human Rights reads in its relevant part as follows .","\u201c CARDINAL.CARDINAL The case of GPE","The history of the so - called \u2018 NORP PERSON is illustrative of how broadcast monopolisation ( through over - consolidation and super - mergers ) can pose an acute danger even in older democracies .","Freedom of expression and press freedoms are in a healthy state in GPE . However , the television - broadcasting market is regularly referred to as the \u2018 NORP PERSON .","In DATE , no third force has been able to constrain the so - called duopoly : domination of the nationwide television channel market by the private owner , PERSON , and the public owner PERSON , ORG . The duopoly was accompanied by a practical monopoly by ORG in the commercial television sector and the advertisement market . Before digitalisation , the duopoly \u2019s audience share was PERCENT ( both owned CARDINAL channels ) . Combined revenues and the advertisement market also provided evidence of the duopoly .","GPE also has an ongoing record of control over public - service television by political parties and governments . As its Prime Minister PERSON co - owns ORG , the usual fears of governmental control of ORG are aggravated by worries of widespread governmental control of the nation \u2019s most important source of information , television .","The so - called ORG and Frattini Laws of DATE were supposed to provide guarantees for future pluralism of the media , and outlaw \u2018 two\u00adhat\u2019 situations , respectively . However , neither universal digitalisation nor equal competition rules alone can guarantee cultural diversity and political pluralism in the media , especially if the already existing media concentration is practically maintained or even enhanced by the law . ORG rules of transition from analogue to digital , despite their innovative force , allow the duopoly to use its acquired economic might to expand into new digital markets .","NORP standards prohibit undue political or partisan ownership or control of private broadcasters in order to avoid government or political interference . GPE and the GPE impose restrictions on direct ownership or control of broadcast media by political actors ; ORG countries also require broadcasters to maintain independence from political parties and politicians . GPE , despite its PERSON , does neither . \u201d","DATE . ORG resolution on the risks of violation , in ORG and especially in GPE , of freedom of expression and information ( LAW ( CARDINAL\/CARDINAL(INI ) ) reads in its relevant parts as follows .","\u201c ... Situation in GPE","Notes that the level of concentration of the television market in GPE is currently the highest within LOC and that while NORP television offers CARDINAL national channels and CARDINAL regional and local channels , the market is characterised by the duopoly between ORG and ORG where both operators together account for PERCENT of the total audience share and collect PERCENT of advertising resources , as against PERCENT for GPE , PERCENT for GPE , PERCENT for GPE and PERCENT for GPE ;","Notes that the ORG group is the largest private television and communications group in GPE and CARDINAL of the largest in the world and controls ( inter alia ) television networks ( ORG ) and advertising franchise holders ( ORG \u2019CARDINAL ) , both of which have been formally found to hold a dominant position in breach of national law ( Law no . [ CARDINAL ] ) by ORG ( decision CARDINAL ) ;","Notes that CARDINAL of the sectors in which the conflict of interests is most obvious is advertising , given that in DATE the ORG group was in receipt of CARDINAL of television advertising resources , amounting to a total of MONEY , and that the main NORP companies have transferred much of their investment in advertising from printed matter to the ORG networks and from PERSON to ORG ;","Notes that the President of ORG has not resolved his conflict of interests as he had explicitly pledged , but on the contrary has increased his controlling shareholding in the company ORG from PERCENT ) , thereby drastically reducing his own net debt through a marked increase in advertising revenue to the detriment of ORG revenues ( and ratings ) and , above all , of advertising funding for the written press ;","Regrets the repeated and documented instances of governmental interference , pressure and censorship in respect of the corporate structure and schedules ( even as regards satirical programmes ) of the ORG public television service , starting with the dismissal of CARDINAL well - known professionals at the sensational public request of the President of ORG in DATE in a context in which an absolute majority of the members of the ORG board of governors and the respective parliamentary control body are members of the governing parties , with this pressure then being extended to other media not under his ownership , leading inter alia to the resignation of the editor of ORG in DATE ;","Notes , therefore , that the NORP system presents an anomaly owing to a unique combination of economic , political and media power in the hands of CARDINAL man \u2013 the current President of ORG and to the fact that ORG is , directly or indirectly , in control of all national television channels ;","Notes that in GPE the broadcasting system has been operating in extralegal circumstances for DATE , as repeatedly recognised by ORG , and in the face of which the efforts of the ordinary legislator and the competent institutions have proved ineffective in re - establishing a legal regime ; ORG and ORG each continue to control CARDINAL terrestrial analogue television broadcasters , despite the fact that ORG in its judgment no . CARDINAL of DATE has ruled it impermissible for one and the same entity to broadcast PERCENT of the television programmes transmitted domestically on terrestrial frequencies ( i.e. CARDINAL programmes ) and has found the regulatory regime under PERSON no . CARDINAL to be contrary to LAW , despite being a \u2018 transitional regime\u2019 ; nor did PERSON no . ORG ( establishing ORG and rules on telecommunication and radio and television systems ) abide by the prescriptions of ORG which , in its judgment CARDINAL , declared the constitutional illegitimacy of LAW thereof , \u2018 in so far as it does not provide for the establishing of a hard - and - fast deadline , in any event not exceeding DATE , by which the programmes transmitted by broadcasters exceeding the limits referred to in paragraph CARDINAL of Article CARDINAL must be broadcast exclusively via satellite or via cable\u2019 ;","Notes that ORG declared in DATE ( Case CARDINAL\/CARDINAL ) that the present NORP private television system operating at national level and in analogue mode has grown out of situations of simple de facto occupation of frequencies ( operation of installations without concessions and authorisations ) , and not in relation to any desire for greater pluralism in the distribution of frequencies and proper planning of broadcasting ... This de facto situation does not therefore guarantee respect for external pluralism of information , which is an essential requirement laid down by the relevant constitutional case - law ... In this context , given the continued existence ( and aggravation ) of the situation which was ruled illegal by Judgment no . CARDINAL in DATE and of networks considered \u2018 ORG by the DATE legislature , a final deadline must be set that is absolutely certain , definitive and hence absolutely binding in order to ensure compatibility with constitutional rules ; notes that , nonetheless , the deadline for the reform of the audio - visual sector has not been respected and that the law for the reform of the audio - visual sector has been sent back by the President of GPE a new examination by the ORG due to the non - respect of the principles declared by ORG ;","...","Hopes that the legislative definition contained in the draft act for reform of the audio - visual sector ( DATE , point G of the NORP law ) of the \u2018 integrated system of ORG as the only relevant market does not conflict with Community competition rules within the meaning of LAW or with numerous judgments of ORG , and does not render impossible a clear and firm definition of the reference market ;","Hopes also that the \u2018 system for assigning frequencies\u2019 provided for in the draft Gasparri law does not constitute mere legitimisation of the de facto situation and does not conflict , in particular , with Directive CARDINAL\/CARDINAL\/EC , Article CARDINAL of CARDINAL or Directive CARDINAL , which specify , inter alia , that the assigning of radio frequencies for electronic communication services must be based on objective , transparent , non - discriminatory and proportionate criteria ;","Highlights its deep concern in relation to the non - application of the law and the non - implementation of the judgments of ORG , in violation of the principle of legality and of the rule of law , and at the incapacity to reform the audio - visual sector , as a result of which the right of its citizens to pluralist information has been considerably weakened for DATE ; a right which is also recognised in GPE ;","Is concerned that the situation in GPE could arise in other member GPE and the accession countries if a media magnate chose to enter into politics ;","Regrets that ORG has yet to adopt a regulation resolving the conflict of interests of the President of ORG , which , it was promised , would take place within DATE of his government ;","Considers that the adoption of a general reform of the audio - visual sector could be facilitated if it were to contain specific and adequate safeguards to prevent actual or future conflicts of interest in the activities of local , regional or national executive members who have substantial interests in the private audio - visual sector ;","Hopes , moreover , that the draft PERSON law on conflict of interests will not stop at de facto recognition of the Premier \u2019s conflict of interests , but will provide for adequate mechanisms to prevent this situation from continuing ;","Regrets that , if the obligations of the member GPE to ensure pluralism in the media had been defined after the DATE Green Paper on pluralism , the current situation in GPE could possibly have been avoided ;","...","Invites the NORP ORG :","\u2013 to accelerate its work on the reform of the audio - visual sector in accordance with the recommendations of ORG and the President of the Republic , taking account of the provisions in LOC which are incompatible with Community law , as noted by those authorities ;","\u2013 to find a genuine and appropriate solution to the problem of a conflict of interest of the President of ORG who also directly controls the principal provider of private and , indirectly , public television , the main advertising franchise holder and many other activities connected with the audio - visual and media sector ,","\u2013 to take measures to ensure the independence of the public - service broadcaster . \u201d"],"violated_articles":["10","P1"],"violated_paragraphs":["10-1","P1-1"],"violated_bulletpoints":["P1-1-1","P1-1-2"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-105210","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF MAKHARBIYEVA AND OTHERS v. RUSSIA","importance":4,"conclusion":"Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicants are :","CARDINAL ) Ms PERSON , born in DATE ,","CARDINAL ) Mr PERSON , born in DATE ,","CARDINAL ) PERSON , born in DATE ,","CARDINAL ) Mr PERSON , born in DATE , and","CARDINAL ) PERSON , born in DATE .","The first and second applicants live in ORG ; the other applicants live in PERSON in Urus - Martan district , GPE . The first and the second applicants are the parents of PERSON , who was born in DATE ; the third applicant is his wife , and the fourth and the fifth applicants are his children .","At the material time the Urus - Martan district and the town of ORG were under the full control of the NORP federal forces . Military checkpoints manned by NORP servicemen were located on all roads leading to and from the area , which was under a strict curfew . A checkpoint manned by policemen from ORG of the FAC region ( \u201c the OMON \u201d ) was located on the road between the town of ORG and the village of PERSON . The applicants and PERSON lived in PERSON , in GPE district . In DATE PERSON was trying to get a job at the PERSON district department of the interior ( the PERSON ) in PERSON .","In TIME DATE , on his way from ORG to PERSON , PERSON stopped at his cousins\u2019 house in GPE on the outskirts of PERSON . On TIME he drove back to PERSON with his cousins , Mr GPE and Mr GPE , in the latter \u2019s black VAZ-CARDINAL car . At the time Mr PERSON was a police officer at LOC in PERSON . On their way PERSON , Mr GPE and Mr GPE passed through a number of checkpoints ; Mr PERSON showed his police identity card and the car was allowed to pass through . The road to PERSON went through the checkpoint manned by the PERSON from the FAC region ; the servicemen had previously seen Mr GPE crossing the roadblock on a regular basis and knew that he was a police officer .","At TIME the car with the CARDINAL men was stopped for yet another identity check at the checkpoint manned by the ORG from ORG . The servicemen looked at the police identity card provided by PERSON and asked for the passports of PERSON and Mr GPE After the CARDINAL men had produced their documents the servicemen surrounded them , blocked the passage through the checkpoint , handcuffed all QUANTITY men and dragged PERSON inside the checkpoint building , while Mr GPE and Mr PERSON remained outside . The servicemen also took away Mr PERSON \u2019s service gun . Immediately after this the servicemen called someone on a portable radio and requested that representatives of the military commander \u2019s office come to the checkpoint .","The detention of PERSON and his cousins was witnessed by CARDINAL residents of PERSON who happened to cross the checkpoint at the same time as the detained men . CARDINAL of them went to the applicants\u2019 house straight away and informed them about the incident . The first and second applicants immediately got into their car and drove to the checkpoint .","TIME after the servicemen had called for representatives of the military commander \u2019s office to attend , an armoured NORP lorry , CARDINAL black PERSON cars with military registration numbers of the \u2018 CARDINAL region and a white ORG ( \u2018 \u041d\u0438\u0432\u0430\u2019 ) car arrived at the checkpoint . PERSON was forced into CARDINAL of the VAZ-CARDINAL cars ; Mr GPE and Mr GPE were placed in the LOC lorry ; black sacks were put over their heads . Mr PERSON \u2019s black CARDINAL car was driven away by one of the abductors , who was in military uniform .","When the vehicles with the detained men were leaving the checkpoint , the first and second applicants pulled up at the scene . They followed the convoy of military cars , which went to the centre of ORG . The applicants\u2019 car was stopped at a checkpoint located on the bridge , in the vicinity of the town administration and the military commander \u2019s office . The first applicant got out of the car and ran after the convoy , which drove into the yard of the Urus - Martan district military commander \u2019s office ( \u201c the district military commander \u2019s office \u201d ) . The soldiers on duty stopped the first applicant from entering the building . TIME the second applicant also arrived at the military commander \u2019s office . The applicants asked the soldiers to let them speak with the district military commander . The servicemen refused and demanded that the applicants leave the LOC , as curfew was just starting .","After the arrival at the district military commander \u2019s office , PERSON GPE and Mr GPE were taken to the third floor , where they were questioned for CARDINAL about involvement in the activities of illegal armed groups . Throughout the questioning they had sacks on their heads and were subjected to beatings .","After the questioning PERSON was taken outside and placed in an UAZ minivan ( \u2018 ORG ) . He recognised the model of the car by its engine sound and layout . His brother , Mr GPE , was also put into the vehicle which took them to the building of the ORG temporary district department of the interior ( \u201c the Urus - Martan VOVD \u201d ) located QUANTITY from the military commander \u2019s office .","In the VOVD Mr PERSON was taken to an investigator \u2019s office and the sack was removed from his head . Mr PERSON asked about his brother , PERSON GPE , and his cousin , PERSON . The investigator told him that he and his brother had been brought over from the military commander \u2019s office and that he did not know the whereabouts of PERSON . After that PERSON PERSON and Mr GPE were taken to a cell in which there were CARDINAL other detainees .","On TIME , DATE , the head of the Oktyabrskiy ROVD arrived in ORG and spoke with the head of the VOVD . As a result , PERSON was released on DATE ; during his release the PERSON officers mistakenly gave him PERSON official registration card . Mr DATE was released DATE , on DATE . DATE Mr PERSON picked up his VAZ-CARDINAL car , which had been taken away by the abductors , from the district military commander \u2019s office .","On DATE the first applicant managed to meet the district military commander , General PERSON , and asked him whether his servicemen had taken away her son . He responded : \u201c Yes , there is a detainee named PERSON . We will question him and then release him . \u201d DATE first applicant again spoke to the General and asked about her son . The latter told her that PERSON had absconded , taking a pistol from the district military commander \u2019s office .","On an unspecified date in DATE the first applicant lodged a claim with ORG , requesting that PERSON be declared a missing person . On DATE the court granted her claim and declared PERSON a missing person from DATE .","In support of their application the applicants submitted the following documents : a statement by the first applicant dated DATE ; a statement by the second applicant dated DATE ; a statement by Mr GPE dated DATE , and copies of letters received from the authorities .","The Government neither challenged the version of events presented by the applicants nor provided their own version of the events .","On DATE the applicants complained to the ORG about the abduction of PERSON . They did not retain a copy of this complaint .","On DATE the first applicant again complained to the PERSON about her son \u2019s abduction . She stated that her son and his CARDINAL cousins had been abducted by NORP military servicemen at the checkpoint located on the road between ORG and PERSON , and that some time later PERSON cousins had been released , but he had remained in detention . She stressed that she could provide the authorities with a detailed description of the ORG vehicles and the names of witnesses to the abduction , and stated that at some point after the abduction her son had been taken to ORG district department of ORG ( \u201c the ORG \u201d ) .","On DATE the second applicant wrote to the Urus - Martan district prosecutor \u2019s office ( the district prosecutor \u2019s office ) about his son \u2019s abduction , and on DATE to the district military commander , General PERSON He stated that at TIME on DATE his son had been abducted by NORP military servicemen at the checkpoint located on the road between ORG and PERSON . The applicant further provided a detailed description of the vehicles involved in the abduction and stated that there were witnesses to the events who could provide statements to the authorities . He stated that he had learnt that at some point after the abduction his son had been detained in ORG , and stated that his attempts to establish the whereabouts of his son by lodging complaints with the ORG , the ROVD , the ORG and the local administration had been futile .","On DATE the district prosecutor \u2019s office instituted an investigation into the abduction of PERSON under LAW ( kidnapping ) . The case file was given the number DATE . The applicants were informed of this on DATE .","On DATE the second applicant again complained to the district prosecutor about his son \u2019s abduction at the checkpoint . He stated , amongst other things , that his CARDINAL relatives , who had been abducted with his son , had later been released from the PERSON and that CARDINAL of them had been given PERSON registration card by mistake . The applicant further stated that he had applied to various authorities with numerous requests for an investigation to be initiated into his son \u2019s abduction by the ORG officers who had been manning the checkpoint on DATE and for them to be questioned about his son \u2019s whereabouts . Finally , the applicant complained of a lack of information from the district prosecutor \u2019s office and asked to be provided with an update .","On DATE the second applicant wrote to the GPE prosecutor and ORG . He stated that his son and CARDINAL of his cousins had been detained by NORP federal servicemen at a military checkpoint ; that his cousins had been released later on from the PERSON and that CARDINAL of them had mistakenly been given his son \u2019s documents during the release . He further stated that his numerous complaints to various authorities had not produced any results and that the investigation of his son \u2019s abduction had been ineffective . In particular , he pointed out that the investigators had failed to question the ORG officers who had been manning the checkpoint and taken away his son and that in spite of numerous witness statements the investigators had failed to establish the circumstances of his subsequent detention in the military prosecutor \u2019s office and the PERSON . According to the applicant , with this information and evidence at hand the investigators could have solved the crime and established his son \u2019s whereabouts shortly after the abduction and that such procrastination in the investigation demonstrated their lack of desire to identify and prosecute the perpetrators . The applicant requested that the authorities establish his son \u2019s whereabouts , inform him of any charges pending against his son and identify the culprits .","On CARDINAL occasions DATE the district prosecutor \u2019s office informed the applicants about the opening of criminal case no . DATE .","On DATE the second applicant requested that the investigators grant him victim status in the criminal case . No response was made to this request .","On DATE the second applicant again complained to the district prosecutor and challenged the investigator in the criminal case . The applicant stated that the investigator had failed to summon and question both the ORG officers who had been manning the checkpoint and the witnesses to the abduction ; that the investigator had failed to include in the investigation file the witness statements given by him and the first applicant to the authorities ; that during a conversation with the first applicant the investigator had told her : \u201c it is not my fault that your son got killed \u201d . The applicant requested that due to this statement demonstrating the investigator \u2019s awareness of PERSON possible fate , the investigator should be held responsible for covering up his son \u2019s murder .","On DATE the district prosecutor \u2019s office informed the applicants that they had suspended the investigation in the criminal case for failure to identify the perpetrators .","On DATE the second applicant again complained to the district military commander about his son \u2019s abduction by military servicemen and requested assistance in the search for his whereabouts .","On DATE the first applicant complained to a number of local authorities , including the head of the ROVD and the district military commander , about her son \u2019s abduction by military servicemen and requested assistance in the search for him . She pointed out that immediately after the abduction her son had been taken to the district military commander \u2019s office and that the military commander had promised to release him after a check and that DATE the officer had told her that her son had absconded with a gun .","On DATE the first applicant again complained about the abduction to the Prosecutor General . She stated that her son had been abducted by servicemen at the military checkpoint when he had been driving with his CARDINAL cousins in a black CARDINAL car from ORG to PERSON ; that after the abduction her son and his relatives had been taken to the district military commander \u2019s office and that she and the second applicant had witnessed the abduction . She further provided a description of the ORG vehicles and pointed out that PERSON and Mr GPE had been released DATE after the abduction , and that DATE Mr PERSON had returned his car , which had been taken away by the abductors ; that during the release from detention PERSON had mistakenly been given PERSON registration card ; that the district military commander had promised to her that her son would be released , and that on DATE after the abduction the officer had told her that PERSON had absconded from the military commander \u2019s office with a gun . The applicant further complained that the investigation had had all the necessary information to identify the perpetrators , but that in spite of that they had failed to take even basic steps . In her opinion , the investigators were trying to cover up her son \u2019s abduction by military servicemen . Finally , she requested that the Prosecutor General assist her in her search for PERSON .","On DATE the first applicant complained to a number of ORG authorities , including the head of ORG , the NORP Defence Minister and the district prosecutor . She provided a detailed description of her son \u2019s abduction by federal servicemen and his subsequent detention in the military commander \u2019s office and the ORG , and complained that the investigation had failed to examine the evidence proving the authorities\u2019 involvement in her son \u2019s abduction . In addition , she stated that on DATE her son had been seen in a bus next to GPE station in the NORP district of GPE . According to a woman who had spoken with PERSON , he had told her that ORG officers were taking him in the bus to the GPE detention centre in GPE . According to the witness , PERSON looked famished and was very pale . The applicant requested that the authorities establish her son \u2019s whereabouts and release him from detention .","On CARDINAL occasions DATE and DATE the GPE prosecutor \u2019s office forwarded the applicants\u2019 complaints to the district prosecutor \u2019s office .","On CARDINAL occasions DATE and DATE the Prosecutor General \u2019s office informed the applicants that they had forwarded their complaints to the GPE prosecutor \u2019s office .","On DATE the first applicant again complained about her son \u2019s abduction by federal servicemen to the district prosecutor \u2019s office and requested to be granted victim status in the criminal case . On DATE she was granted victim status in the case .","On DATE the military prosecutor \u2019s office of ORG informed the first applicant that they had forwarded her complaint about the abduction to the military prosecutor \u2019s office of military unit no . CARDINAL in GPE , GPE .","On DATE the first applicant requested an update from the investigators on the investigation in the criminal case .","On DATE the GPE prosecutor \u2019s office informed the first applicant that according to their information received from the GPE detention centre PERSON had never been detained on their LOC .","On DATE the first applicant again complained to the district military commander . She stated that her son and his CARDINAL cousins had been abducted by servicemen from a military checkpoint on the way from PERSON to PERSON ; that after the abduction the men had been taken to the district military commander \u2019s office , and that she and the second applicant had witnessed the events . She further provided a description of the ORG vehicles and pointed out that PERSON and Mr GPE had been released DATE after the abduction and that DATE Mr PERSON had returned his car which had been taken away by the abductors ; that when being released from detention Mr PERSON had mistakenly been given PERSON registration card ; that the district military commander had promised her that her son would be released , and that on DATE after the abduction the officer had told her that PERSON had absconded with a gun from the military commander \u2019s office . The applicant further complained that the investigation into the abduction had been ineffective , and requested assistance in her search for her son .","On DATE the first applicant complained to ORG of ORG ( the UGA ) . She provided a detailed description of her son \u2019s abduction by federal servicemen , his subsequent detention in the military commander \u2019s office and the PERSON and complained that the investigation had failed to examine the evidence proving the authorities\u2019 involvement in her son \u2019s abduction . She stated that on DATE her son had been seen in a bus next to GPE station in the NORP district of GPE . According to the woman who had spoken with PERSON , he had told her that the ORG officers were taking him in the bus to the GPE detention centre in GPE . The applicant requested that the authorities establish her son \u2019s whereabouts and release him from detention .","DATE the applicants were not provided with any information concerning the investigation of the abduction .","On DATE the first applicant wrote to the district prosecutor and complained that the investigation of her son \u2019s abduction was ineffective . She requested an update on its progress and asked for the proceedings to the resumed . No reply was given by the authorities .","On DATE the district prosecutor , on a complaint by the second applicant , requested that the head of ORG and the district military commander inform him whether they had detained PERSON and if so , where he had been taken afterwards .","On DATE the investigators opened criminal case no . DATE in connection with \u201c ... the detention of PERSON at the checkpoint located between PERSON and ORG on DATE and his subsequent removal in the direction of ORG ... \u201d","On DATE the ROVD officially registered the second applicant \u2019s complaint about the abduction .","On an unspecified date in DATE the investigators questioned the first applicant , who provided a detailed description of her son \u2019s abduction by servicemen at the military checkpoint and his subsequent removal to the military commander \u2019s office .","On an unspecified date in DATE the investigators questioned the second applicant , whose statement about the circumstances of the abduction was similar to that made by the first applicant . In addition , he stated that DATE after the abduction he and his brother ( the father of Mr PERSON and Mr GPE ) had spoken with the head of the administration , PERSON Ya . , who had told them that on DATE their sons had been taken away from the checkpoint by servicemen of the PERSON and that later on Mr PERSON and Mr GPE had been transferred to the VOVD , whereas PERSON had allegedly absconded from the military commander \u2019s office .","DATE . On DATE the investigators questioned the third applicant , who stated that in TIME DATE she had learnt about her husband \u2019s abduction at the checkpoint , from a man who had arrived at her house .","On an unspecified date in DATE the investigation in the criminal case was suspended for failure to identify the perpetrators .","On DATE the investigators resumed the investigation in the criminal case . The text of the decision included the following :","\u201c ... on DATE during the crossing of the checkpoint located on the road between PERSON and Urus - Martan Mr PERSON , PERSON and PERSON GPE were detained for an identity check ; after that the men were taken to the LOC military commander \u2019s office and from there they were transferred to ORG , from where PERSON and Mr DATE were subsequently released , but the whereabouts of PERSON have not been known since ... \u201d","On DATE the investigators again questioned the second applicant , who stated that his son and his CARDINAL cousins , PERSON and PERSON GPE , had been detained at the checkpoint by the ORG servicemen and that subsequently the detainees had been taken to the military commander \u2019s office and that later on during the release PERSON had noticed that he had mistakenly been given PERSON registration card . The applicant provided the investigators with a detailed description of the vehicles used to transport the detained men from the checkpoint to the military commander \u2019s office , and pointed out that on DATE after the abduction the military commander had confirmed to him that the servicemen had detained his relatives at the checkpoint .","On DATE the investigators questioned the second applicant \u2019s brother , PERSON , who stated that his sons had been detained at the checkpoint together with PERSON .","On DATE the investigators questioned the applicants\u2019 neighbour Mr A.B. , who stated that he had heard that PERSON had been taken away from the checkpoint , and provided a positive character reference for him .","On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .","On DATE the investigators granted the first applicant victim status in the criminal case but did not question her .","On CARDINAL DATE the investigators again questioned the second applicant \u2019s brother , PERSON , who confirmed his previous statement .","On DATE the investigators questioned the first applicant , who stated that in DATE she had learnt that PERSON . ORG had been detained with her son PERSON in the GPE detention centre . She had spoken with him and found out that her son had been detained in cell no . CARDINAL and that the guards had given him the nickname \u201c GPE \u201d ( Old ) . Mr Akh . I. had identified PERSON in the picture shown to him by the applicant . DATE the applicant had learnt that PERSON . I. had been killed . The applicant also provided the investigators with a detailed description of the circumstances under which a woman named PERSON had met her son PERSON in the bus on his way to the GPE detention centre .","On DATE the investigators questioned the head of the administration , PERSON Ya . , who stated that he did not remember the circumstances of his conversation with the second applicant ( see paragraph CARDINAL above ) .","On DATE the investigators questioned the applicants\u2019 relative PERSON , who stated that on DATE he , his brother PERSON and his cousin PERSON had been detained by servicemen at the checkpoint for an identity check . He and his brother Mr GPE had been put into an armoured LOC vehicle ; he had seen PERSON blindfolded and handcuffed . PERSON had remained at the checkpoint and Mr PERSON and Mr GPE had been driven to ORG . On the way there the brothers had also been blindfolded . TIME the brothers had arrived at the ROVD , where they had been questioned separately about their cousin PERSON . After that they had been put into cells and on DATE questioned about PERSON again . DATE PERSON I.M. had been released , and DATE the witness had been released as well . According to the witness , he had collected his car , which had been taken away from him at the checkpoint , from the district military commander \u2019s office .","On DATE the investigators questioned the applicants\u2019 relative Mr GPE , whose statement about the abduction was similar to the CARDINAL given by his brother PERSON","On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .","The investigation failed to establish the whereabouts of PERSON . The investigating authorities sent requests for information to the competent ORG agencies and took other steps to have the crime resolved . The law - enforcement authorities of GPE had never arrested or detained PERSON on criminal or administrative charges , and therefore did not carry out a criminal investigation in his respect .","According to the Government , at the ORG \u2019s request they furnished the ORG with copies of the entire contents of the investigation file in criminal case no . DATE amounting to CARDINAL pages .","For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88524","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"CARR v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE . His claim for widows\u2019 benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . On DATE the applicant appealed and reconsideration took place on DATE whereby the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The applicant was not in receipt of child benefit at the time of his claim .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102141","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2010,"docname":"CASE OF MACKAY AND BBC SCOTLAND v. THE UNITED KINGDOM","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General})","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["On DATE CARDINAL men went on trial in the High Court of Justiciary sitting at GPE on charges of importing and supplying controlled drugs . The proceedings were filmed and relayed through a closed - circuit television system to a remote viewing room in the court building . On DATE , it was discovered that police officers and prosecution staff had been watching the proceedings in the remote viewing room with the risk that defence conversations might have been overheard . When this was brought to the attention of the trial judge on DATE , he took the decision to desert the trial diet simpliciter since he believed that no fair trial could continue before him . This decision had the effect of bringing the prosecution case to an end resulting in the acquittal of the accused . The desertion simpliciter meant that the accused could not be reindicted .","DATE , the trial judge heard argument from counsel for ORG before making an interim order under section CARDINAL(CARDINAL ) of ORG DATE preventing the publication of any report of the proceedings . That order was to become final on DATE unless any interested party applied to the court for its recall ( quashing ) or variation . On DATE , ORG appeared before the trial judge and made representations in respect of the order . The trial judge varied the interim order to the effect that publication of any report of the proceedings was prohibited until the completion of any appeal and any further trial . The varied order was to become final on DATE unless there was another application to recall or further vary it .","The ORG appealed against the decision of the trial judge to desert the trial diet simpliciter . The appeal was scheduled to be heard by ORG of Justiciary ( sitting as an appeal court in GPE ) on DATE .","In advance of the hearing , ORG sent a number of letters to ORG of Justiciary , seeking an opportunity to address the court should an application to prevent publication of any report of the appeal proceedings be made . On DATE , counsel for ORG was told verbally by court officials that no opportunity would be made available for it to make representations in court . A further fax asking for a hearing was sent by ORG DATE . No response was received .","On TIME , ORG of Justiciary , on the unopposed motion of the ORG , made a section CARDINAL(CARDINAL ) order prohibiting the publication of a report of any part of the appeal hearing until completion of the appeal . The applicants , in their observations to this ORG , maintain that their representative attended ORG hearing TIME but was not heard . The order made by ORG was to become final on DATE unless an application was made to recall or vary it . The order was posted on ORG website and circulated to the NORP media .","On TIME , ORG sent another fax to ORG stating that it wished to be heard on the order as soon as possible . ORG were then contacted and advised that a hearing would be fixed but not before DATE . The Government , in their observations to this ORG , maintain that ORG did not challenge that decision . On DATE , ORG sent another fax to ORG advising that a telephone call to their offices would be sufficient to enable them to arrange representation before ORG within TIME . The fax also conveyed ORG understanding that , if ORG dismissed the prosecution 's appeal , then ORG would be heard by the court in respect of the section CARDINAL(CARDINAL ) order .","The Government maintain that ORG did not contest the decision not to hold a hearing before DATE and , because no application had been made to recall or vary the interim order before DATE , the interim order became final on DATE . The applicants maintain that their fax of CARDINAL DATE was intended to be an application to recall or vary the interim order ; as such , the interim order did not become final on DATE .","NORP The prosecution 's appeal was determined on DATE . On the basis of further information provided by the prosecution as to who had been watching the trial proceedings in the remote viewing room , ORG recalled the order of the trial judge and substituted an order for desertion pro loco et tempore , which allowed for the re - indictment of CARDINAL of the original accused .","On DATE , ORG deferred its consideration of ORG application for the recall of the section CARDINAL(CARDINAL ) order made on DATE . On DATE , ORG recalled that order .","Section CARDINAL(CARDINAL ) of the Contempt of Court Act DATE provides that where legal proceedings are held in public , in any such proceedings the court may , where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings , or in any other proceedings pending or imminent , order that the publication of any report of the proceedings , or any part of the proceedings , be postponed for such period as the court thinks necessary for that purpose .","Section CARDINAL of LAW DATE provides that in GPE and GPE , where such an order is made , an aggrieved person may appeal such an order to ORG . The section does not apply to GPE . Instead , following ORG of GPE ruling in PERSON v. H.M. Advocate DATE S.L.T. CARDINAL , where the question was considered obiter dicta , it appears that the practice of NORP courts will be to make interim orders for TIME , to give notice of the interim order to the legal representatives of media organisations and give them the opportunity to address the court on the terms of the interim order . A full copy of any section CARDINAL(CARDINAL ) order is intimated to press and media contacts who are listed with ORG . The names of cases where section CARDINAL(CARDINAL ) orders are in place are available from ORG website .","The concept of nobile officium in NORP law is an extraordinary equitable power vested in , inter alia , ORG of Justiciary . It was described by ORG in PERSON v. HMA DATE ORG CARDINAL as :","\u201c ... a remedy for any extraordinary or unforeseen occurrence in the course of criminal business in any part of the country ... In short , the principle is , that wherever the interposition of some authority is necessary to the administration of justice , and there exists no other judicature by whom it can competently be exercised , or which has been in use to exercise it , ORG is empowered and bound to exercise its powers [ of nobile officium ] , on the application of the proper party , for the furtherance of justice \u201d","The procedure is used where there is no other remedy provided for by law . A petition to the nobile officium was brought in ORG"],"violated_articles":["10","13"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115740","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2012,"docname":"AMIRS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr A. ORG , a lawyer practising in R\u012bga .","ORG ( \u201c the Government \u201d ) were represented by their Agents , PERSON and subsequently by PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","According to the applicant , on DATE four armed persons , alleging that they were police officers , tried to enter his apartment at ORG prospekts CARDINAL in ORG . The applicant refused to open the door , as the persons were not in uniform and were behaving aggressively . After a while they left . They returned within TIME and presented a document summoning the applicant to the police station . The applicant dialled the telephone number indicated on the document and was informed that PERSON DATE the head of CARDINAL of the sections of ORG ( Organiz\u0113t\u0101s noziedz\u012bbas apkaro\u0161anas birojs ) \u2013 would like to meet him .","The applicant claimed that when he arrived at the police station on an unspecified DATE ( possibly CARDINAL DATE ) , PERSON brandished his gun and demanded a promissory note , apparently in the applicant \u2019s possession , entitling him to MONEY ( ORG ) . The applicant refused to hand it over , after which PERSON demanded him to pay USD MONEY instead . The applicant refused to pay .","The applicant alleged that following the incident he received threats and anonymous phone calls .","On DATE the applicant secretly left his apartment at ORG prospekts CARDINAL and moved to another apartment .","On DATE an explosion took place in the stairwell of the ORG prospekts CARDINAL apartment building . GPE , who , according to the Government , was a member of a notorious criminal gang , was injured in the explosion . The Government submitted that the explosion had been CARDINAL of many assassination attempts directed against PERSON , who was eventually assassinated in DATE .","On DATE the applicant left GPE and went to GPE . The ORG submitted that after the expiry of his tourist visa , the applicant applied for asylum there . His asylum request was eventually rejected , and on DATE he was deported back to GPE . The applicant argued that he had travelled to GPE on a \u201c business visa \u201d , which was permanent , and that after spending DATE in GPE he had applied for a \u201c refugee visa \u201d , which would have allowed him to legally seek employment in GPE . The applicant told ORG during the appeal proceedings in the criminal case against PERSON ( see paragraph CARDINAL below ) that he had left GPE voluntarily and legally .","In the meantime , on DATE another explosion took place in a lift at ORG prospekts CARDINAL . Information given by ORG to ORG on DATE suggested that on that date criminal proceedings concerning both the first and second explosions were pending . The applicant had not been granted any procedural status in those proceedings and had not submitted any statements or claims relating thereto . ORG pointed out that , at the time of both explosions , the applicant had no longer been residing at the address in question .","After the applicant \u2019s return to GPE he changed his name .","On DATE PERSON was remanded in custody on suspicion of having committed various crimes , none of which was related to the applicant or the alleged incidents of DATE .","On DATE a certain PERSON informed the Security Police that PERSON had committed aggravated extortion . PERSON put himself and the applicant forward as victims of PERSON","On DATE the applicant was questioned by ORG . According to the Government , during the interview he gave information about the alleged incident of DATE but did not make any allegations about any current or past threats to his life .","On DATE PERSON was released on bail and , on the following day , the applicant applied to ORG with a request that PERSON be rearrested or else that the applicant be granted special procedural protection .","On DATE ORG refused to grant special procedural protection to the applicant , since such protection was only afforded to persons who were parties to criminal cases , which the applicant was not .","On an unspecified date PERSON was also charged in connection with the alleged events of DATE and the applicant was officially recognised as having the procedural status of victim . A trial before ORG took place DATE and DATE . During the trial the applicant gave evidence about the events of DATE and DATE that followed . He informed the court that he had complained both in writing and orally to various institutions in this regard . He stated that his life had been under threat and on DATE he had been forced to flee to GPE to avoid PERSON taking revenge on him .","ORG delivered its verdict on DATE . It found PERSON not guilty . When assessing the applicant \u2019s statements , the court noted , amongst other things , that a forensic psychological and psychiatric report had revealed that the applicant was an \u201c egocentric with paranoid tendencies \u201d . However , the applicant had not been found to be suffering from a mental disorder . After having assessed the facts of the case and the available evidence , the court came to the conclusion that they were contradictory and did not support the applicant \u2019s allegations . The court took into account , inter alia , the fact that the applicant had not travelled to GPE until DATE after the alleged incidents of DATE .","It appears that the applicant was sent a NORP translation of the verdict on DATE . The applicant argued that therefore he could not have complied with the requisite time - limit for lodging an appeal . On DATE and DATE the applicant submitted CARDINAL identical petitions to ORG , complaining that the first - instance court had not mentioned in its verdict that he had submitted a civil claim against PERSON","A prosecutor and the other alleged victim , ORG , had in the meantime submitted their appeals , and appeal proceedings had been initiated in ORG . ORG scheduled the hearings to take place CARDINAL and decided to issue a summons to the applicant .","On DATE , DATE after the completion of the first round of appellate court hearings ( in which the applicant had given evidence and which had lasted for DATE from DATE ) , the applicant sought leave to appeal , which he had apparently not been able to do within the requisite time - limit because he had not been in R\u012bga . On DATE ORG examined that request and denied his request for leave to appeal . That decision was subsequently upheld by ORG .","On DATE the applicant applied to ORG to be granted special procedural protection because he had allegedly \u201c been attacked \u201d on DATE .","The application was communicated to the respondent Government on DATE .","After receiving the applicant \u2019s request for special procedural protection , ORG requested ORG to verify the applicant \u2019s allegations and , after receiving a reply , on DATE granted special procedural protection to the applicant .","On DATE ORG delivered its verdict , convicting PERSON of charges in connection with ORG \u2019s allegations but upholding the first - instance court \u2019s decision to acquit PERSON with regard to the applicant \u2019s allegations . In its verdict ORG indicated that the applicant \u2019s suspicions linking PERSON to the explosions , the armed men near his apartment building and the violent deaths of various individuals were not established by the materials in the case file . ORG agreed with the lower court \u2019s conclusion that the applicant \u2019s leaving GPE DATE after the alleged events could not have been linked to the events in connection with which PERSON had been charged .","The Government submitted that on DATE the applicant had requested ORG to lift his special procedural protection . That request was granted DATE . The applicant contended that he had waived his special protection after being prompted to do so by the police officers who had been assigned to guard him .","On DATE the ORG of ORG gave its final verdict in the criminal case against PERSON , in which it dismissed the appeals on points of law lodged by the prosecutor , PERSON and his counsel , the applicant , and PERSON \u2019s counsel ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105047","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2011,"docname":"CASE OF SB\u00c2RNEA v. ROMANIA","importance":3,"conclusion":"No violation of Art. 8;Remainder inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Mihai Poalelungi;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE .","The applicant married PERSON on DATE . On DATE their daughter PERSON was born .","At the petition of the applicant the marriage was dissolved by a final decision of CARDINAL DATE and PERSON was awarded resident parent status . The said judgment did not include contact arrangements for the applicant , as no such request was made .","According to the applicant and to the information available in the case file , in the period following the divorce and until DATE or DATE , he was able to see PERSON without any restrictions . Their relationship was close and affectionate .","During DATE the applicant announced to E. that he was remarrying and that he and his new wife were expecting a new baby girl .","From that point onward , PERSON started refusing to meet him on her own , expressing the wish that her mother also be present during these meetings . The applicant \u2019s explanation was that PERSON was trying to punish him by preventing him from having contact with his daughter , after she realised that he was starting a new life and that the separation from her was therefore final .","On DATE , the applicant brought an action for the establishment of his rights of contact with the child . He stated that PERSON was not respecting his right to spend time alone with their daughter .","During the proceedings , PERSON indicated that , although the divorce decision did not set out any contact schedule , she had always encouraged PERSON to spend time with her father . Nevertheless , lately she had noticed that the child had a reserved attitude towards meeting her father alone , and the girl had asked her also to be present during those meetings .","A report on the social investigation conducted by social services after carrying out on DATE a home visit to GPE and discussions with both the child and the mother indicated that the mother had not prevented the applicant from visiting the child , but on the contrary she tried to encourage their relationship , given the fact that the girl suffered considerably after her GPE divorce . The report also indicated that the applicant continued to see PERSON","In a judgment of DATE , ORG ( \u201c the district court \u201d ) concluded that the applicant had the right to maintain personal relations with the child in the absence of GPE , as , on the basis of the evidence adduced , it could not be concluded that such a visiting schedule would be contrary to PERSON \u2019s interests . The court noted further that with wisdom , tact and affection the new reality could be explained to the child and she had to be helped to accept the existing situation .","The court established that the applicant could spend time with PERSON at his home TIME DATE TIME , and every other alternating DATE TIME , as well as for DATE during DATE , CARDINAL of the DATE and DATE and on DATE , New Year \u2019s Eve and GPE celebrations .","The judgment became final , as no appeal was lodged .","On DATE , the applicant lodged a criminal complaint against GPE , alleging that she had not complied with the final judgment of CARDINAL DATE , which defined his contact rights with E.","During DATE , the investigating authorities took statements from the proposed witnesses and the mother . The child also gave a statement on DATE , stating that she did not want to see her father and that her mother allowed her to meet him but she did not want to .","On DATE , the prosecutor decided not to pursue PERSON criminally , considering that the non - compliance with the said judgment could not be imputed to her , but to the child \u2019s refusal .","The applicant lodged a judicial complaint against the prosecutor \u2019s decision . By a first - instance judgment of DATE the GPE ORG referred the case back to the prosecutor for the investigation to be continued . The court considered that , given her age , the girl did not have a full understanding of her refusal to meet her father and under these circumstances , it was expected that it was PERSON \u2019s duty to inculcate in her a positive attitude towards the father and that the prosecutor had ignored statements by PERSON in which she admitted that she had agreed to allow the father to visit the girl only in her presence . The court also considered that it was necessary to prepare a psychological expert report ( \u201c expertiz\u0103 psihologic\u0103 \u201d ) in order to identify the real cause of the girl \u2019s refusal to meet her father .","The file was sent back to the prosecutor . PERSON and CARDINAL witness indicated by the applicant were heard again . The mother declared again that she was not preventing the child from having contact with the father , but the child was afraid of him and did not want to meet him . The witness said that on CARDINAL occasion she had met the CARDINAL of them and PERSON had refused to join her father , pleading with PERSON not to go away .","E. gave further statements , on DATE and DATE , stating that she refused to have contact with the applicant because he had threatened on several occasions that he would hurt her mother if she refused to do so .","The investigating authorities asked for a psychological assessment ( \u201c evaluare psihologic\u0103 \u201d ) to be prepared . The assessment , carried out by social services on CARDINAL DATE , indicated that the child was suffering from anxiety and sleep problems and that she needed to be in a harmonious environment , avoiding situations that could stress her .","No psychological expert report could be prepared , as several institutions summoned to carry out such a report declared that it was not within their responsibilities .","In a decision of CARDINAL DATE , the prosecutor decided not to pursue criminal proceedings against GPE because she did not intend to prevent the applicant from having a personal relationship with the child . It further held that it was not necessary to conduct a psychological expert report , taking into account that such a report could not establish with certainty whether PERSON was in bad faith on this matter .","The applicant was notified of the decision only at DATE , and he lodged a judicial complaint against it .","NORP In a first - instance judgment of DATE ORG dismissed the complaint . The court noted that the prosecutor heard the witnesses indicated by the parties again and that a psychological expert report would not have been conclusive for the outcome of the case . The child had many times expressly stated in front of the investigating authorities and social workers that she did not want to see her father . The same state of affairs had been confirmed by her teacher and by the neighbour taking care of her . None of the evidence indicated that the child wanted to see her father and PERSON was preventing her .","The court further held that the father \u2019s expectation that the child should understand that state authority prevails over parental authority was exaggerated ; the child only understood his intention to harm her mother , hence her reaction ; PERSON \u2019s failure to attend some of the meetings with the social workers needed to be assessed in a general context , and taking into account that this attitude had been shown only after a number of meetings with social workers , conducted at their home .","The court concluded that the decision not to pursue PERSON criminally did not amount to an incentive not to comply with the final judgment defining the applicant \u2019s contact rights with the child ; this decision was the result of the conclusion that the conditions required to attract criminal liability had not been met . The applicant could pursue the forced enforcement of the said judgment , according to the procedure regulated by LAW ; but regard must be had to the fact that only a responsible attitude on the part of the parents and of the experts to whom the parents have turned could lead to a normalisation of the father - child relations .","ORG , in a final decision of DATE , allowed an appeal by the applicant against this judgment , holding that the prosecutors should have listened to other witnesses and should have conducted a psychological expert report .","The case was again referred back to the investigating authorities .","The child was assessed psychologically by the psychologists of ORG during DATE . The conclusions of the report are presented in paragraph CARDINAL below .","The applicant , PERSON and PERSON made statements before the prosecutor on different dates in DATE .","The main elements of the girl \u2019s statement were the following :","a ) for a while , until DATE , she had a good relationship with her father . Then he started visiting her at school and sending letters asking her not to tell GPE about it ; she felt uncomfortable as she did not have any secrets from her mother ;","b ) because of the letters she started fearing that he had something to hide , and this was why she wanted her mother to be present too ; she spoke DATE with him on the phone , she did not understand why he had to send her letters ;","c ) her father used to call her on the phone to tell her that he would hurt GPE badly ; he kept her for TIME on the phone to tell her this ; she started having nightmares and dreaming about her mother \u2019s grave ;","d ) at DATE , he took her by force and pushed her into his car . She was very upset . He did not even call to announce that he was coming . Her opinion did not matter to him ;","e ) maybe in his own way he loved her ; but she did not like it that he had something against GPE ; he acted as if he intentionally wanted to harm her . If he loved her , he would not do so . This was her reproach to him . She told him this several times and he told her that he could not do anything about it , but he had to lodge judicial actions . She did not understand it ;","f ) since DATE she had not wanted to see him at all . He did not call her for DATE , after which he appeared at their door with the bailiff and several policemen . She started shaking when she saw so many policemen ;","g ) she would like her father to stop all his complaints against her mother ;","h ) she still cared for her father , but only a little now . There were things that disturbed her about him . She did not have the feeling that he tried to make any effort to make things better ;","i ) she went several times to the child protection authorities . The people there were nice , but she did not like going there . Her classmates who had divorced parents did not have to go there ; it was difficult for her to tell them why she was upset , because they were like foreigners to her .","By a decision of CARDINAL DATE , the prosecutor terminated the criminal proceedings against GPE , concluding that she was not obstructing the enforcement of the judgment defining the applicant \u2019s visiting rights .","In respect of the indications given by ORG in its decision of CARDINAL DATE , the prosecutor noted that the applicant had been asked to suggest other witnesses who would support his allegations . However , he did not produce such witnesses , stating that \u201c [ he ] had lost [ his ] trust in this prosecution unit and therefore , [ he ] refused to produce these witnesses . [ He ] reserved the right to indicate their name when [ he ] considered the moment to be opportune . \u201d","As regards the indication to conduct a psychological expert report , the prosecutor noted that ORG had responsibility to conduct only psychiatric expert reports , which was not the type of report needed in the instant case . The prosecutor nevertheless relied on the conclusions of the psychological assessment carried out by social services .","The prosecutor further took note of the applicant \u2019s statements according to which \u201c it was the mother \u2019s duty to comply with the visiting programme . If she had not been able to influence the child in the direction set by the court ( ... ) , she had to pay for it \u201d . The prosecutor indicated that the crime punished by LAW implied an action from the side of the accused ; or the factors for which the applicant held GPE responsible were actually a lack of action , namely that she failed to inspire in the girl positive feelings towards him .","In other statements taken into account by the prosecutor in his decision , the applicant declared that he did not see any harm in the fact that a child needed to be aware that state authority was above GPE authority and that even if a harsh law might frighten a child , that law should be obeyed . The applicant considered that it was not in the best interest of the child to take her moods into account . A child needed to learn that he or she had responsibilities too . The fact of taking a child away with him , even by force , did not mean that he was torturing the child .","As regards PERSON \u2019s refusal to attend some of the psychological counselling sessions , the prosecutor underlined that this obligation had not been set by the final judgment defining the applicant \u2019s contact rights . The prosecutor then analysed whether this absence showed PERSON to be in bad faith . The prosecutor relied on the child \u2019s statements according to which she did not like to go to the social assistance office . He considered that one could not expect a parent to remain indifferent to a child \u2019s attitude towards these meetings , and that this was the reason why PERSON had refused to attend some of the meetings with social workers .","The applicant \u2019s complaint against the prosecutor \u2019s decision was dismissed by a first - instance judgment of CARDINAL DATE . This judgment was upheld by ORG , in a final decision of DATE . The county court explained that the crime under LAW implied acts by a person who had resident status with a child aimed at preventing the other parent from maintaining a personal relationship with the child . But in the instant case GPE had not taken such actions ; she had only expressed her disagreement with forcing the child to do something she did not want to do . No elements indicated that PERSON was the one who had induced the negative feelings in the child . It was also concluded that no other psychological report was needed , in the light of the reports already conducted and relied upon by the prosecutor and the first - instance court .","During DATE the applicant lodged several requests for assistance from social services , indicating that he still had problems in communicating with his daughter , who was refusing to meet him . He held that this was due to the pressure exerted on the child by GPE","A social worker visited the mother and the child at their home on CARDINAL May and DATE . On both occasions , they noted that the CARDINAL had a strong and affectionate relationship . The child declared she did not love her father and she was afraid of him ; the mother undertook to enrol PERSON on a counselling programme . Further interviews were conducted by social services with the neighbour who sometimes took care of TIME until PERSON returned from work , and with her school teacher . Both indicated that PERSON had previously had a good relationship with her father , but that recently she had refused to see him any more . According to these statements , PERSON refused to meet or talk to her father even when she was alone , without her mother around . The school teacher indicated that the father had visited PERSON several times at the school .","On DATE , a written notification was sent to GPE recommending her to enrol PERSON on a counselling programme .","From the information available in the case file , it appears that the girl was enrolled on a counselling programme with a psychologist from an unspecified date during DATE .","Following a new request from the applicant , by a letter of CARDINAL DATE social services informed him of the steps taken and confirming that they would continue to monitor the situation of the child in DATE .","The applicant made renewed requests for assistance , indicating that he was willing to do anything possible to help restore the psychological balance of the child .","M.S and PERSON were invited for a meeting with social services on DATE . The report drawn up on that occasion indicated again that PERSON did not want to meet her father , that she did not trust him any more and that she feared that he had tried to hurt her mother . The social worker proposed a trilateral meeting , but PERSON refused this proposal , after seeing that PERSON did not agree with it .","PERSON informed the social worker that PERSON visited a psychologist DATE .","On DATE , PERSON gave a new statement to social services , reiterating the same elements . She also mentioned that she had insisted that PERSON go to the birthday party of her paternal grandfather , who was ill . Since then , the girl had seen her father once , when he came to bring her a birthday gift , but she had refused to leave with him .","The mother indicated that all these events in the life of her daughter had created in her a feeling of fear , and that she had therefore enrolled the girl in a counselling programme , which she attended DATE .","A new social investigation report was prepared on DATE , following a home visit and discussions between the social worker and PERSON and the mother . The report concluded that PERSON was still refusing to meet her father and she was not prepared to meet him . The child believed that her relationship with the applicant would have been better if he had not tried to hurt her mother by making all \u201c his complaints to the courts , the police and threats \u201d ; the mother reiterated that she was not preventing her daughter from having a personal relationship with her father , but that she did not want to force her to meet him against her will .","During a visit to the child \u2019s home on DATE , the social worker obtained the mother \u2019s approval for more frequent meetings at their home . The mother refused to have meetings at their headquarters .","The social worker made a new home visit on DATE . She talked with the child about the relation between the child and the father , PERSON repeating that she did not wish to see him and that she would like to be left alone .","On DATE , PERSON and PERSON went to social services and they discussed the counselling programme in which PERSON was enrolled within ORG ; the girl refused the proposal to meet the applicant at their offices .","DATE . On DATE , the psychologist in charge of E \u2019s case prepared a psychological assessment ( \u201c evaluare psihologic\u0103 \u201d ) . The test concluded that the girl presented certain disorders of a neurotic character ( reactive to stress ) . It recommended psychotherapy and a harmonious emotional climate , by avoiding stress and situations that may cause psychological trauma .","By a letter of CARDINAL DATE the applicant was informed that the social worker had come to the conclusion that it was the child \u2019s own decision not to meet him and that their attempts to set up a meeting at their office between him and the child had failed because of a very vehement refusal from PERSON \u2019s side .","The applicant lodged several complaints with the social services office and with the superiors of the social worker in charge of the case , expressing the concern that the case had not been handled properly .","Following the applicant \u2019s renewed complaints , social services proceeded to request PERSON to present herself at their office for further discussions . PERSON did not attend the proposed meetings .","During DATE , PERSON was invited several times to attend meetings with the social worker in charge of the case . She did not attend these meetings .","On DATE , ORG invited ORG ( formerly ORG , hereinafter \u201c GPE \u201d ) , to submit a copy of their file on the case , as well as to state whether they had experts who could conduct psychological expert reports ( \u201c expertiz\u0103 psihologic\u0103 \u201d ) on minors .","By a letter of CARDINAL DATE , GPE informed the district court of their activities in respect of PERSON and that they had employees who were psychologists whose responsibilities included the psychological assessment and counselling of children .","The county court then asked ORG to specify whether their experts could determine with certainty whether the rejection of CARDINAL parent by a child is due to influence exerted by the parent who is resident with the child . ORG informed the county court that their experts were of the opinion that it was not possible to determine with certainty the influence exerted by the parent with residence in respect of a child \u2019s attitude towards the other parent .","On DATE , the social worker in charge of the case file closed it , noting that the mother held that she did not oppose the child having a relationship with her father , but that the child was continuing to refuse to meet him and that after several complaints addressed to different public authorities the father had stopped contacting social services .","On DATE the applicant again contacted social services , complaining that the situation had worsened . He asked them to reopen the case . Letters were sent to GPE on several occasions inviting her to meetings to discuss the situation of the child . PERSON did not reply to the invitations , although a few times she telephoned them to notify them that she would not be able to attend the meetings , either due to her work schedule or to illness .","On DATE the social worker talked to the maternal grandfather , who declared that the applicant saw PERSON often and they went out together for walks . On DATE the social worker had a telephone conversation with PERSON , who informed her that PERSON had spent the first part of DATE with her father .","On DATE GPE and PERSON visited the office of GPE . On that occasion , PERSON gave another written statement in front of CARDINAL social assistants , declaring that she did not want to meet her father , that she did not like the way he had behaved towards her during DATE , when she had had to spend DATE with him and he had threatened to harm her mother if she did not agree to go with him .","On DATE , at the request of the prosecutor investigating the case against GPE , GPE issued a report on the case . The report showed that the applicant had lodged a criminal complaint against GPE , which strengthened the feelings of rejection shown by his daughter . In respect of PERSON the report concluded that at the beginning she had cooperated well with them , but that lately her attitude had changed and she was not responding to their requests for meetings .","From the information submitted by the applicant it appears that during DATE PERSON was subjected again to a psychological evaluation by experts from social services . The assessment report was prepared on DATE , after CARDINAL meetings with the child .","NORP The report noted that the child was tense during these meetings . In respect of her relationship with her parents , the report concluded that her relationship with her mother had an emotional basis , PERSON perceiving her mother as a supporting element , while she was ambivalent in her relationship with the applicant . The girl showed a strongly negative attitude towards paternity , the report concluding that the basis of the child - father relationship was insufficiently structured and consolidated . The current situation had triggered the development of a latent aggressiveness , the child being \u201c overloaded \u201d with problems specific to her parents .","The conclusions of the report were as follows : there was a need to ensure an emotional basis which would support the development of the child \u2019s personality . It was necessary for the parents ( especially the father ) to respect the child \u2019s rhythm and adapt to its specific characteristics so that the child could internalise according to her own feelings both her relationship with her parents and the situation she was facing . This could allow an adequate and balanced integration of the maternal and paternal sides of the girl \u2019s life . The report further recommended psychological counselling for the child , as well as for the parents , in order for the latter to understand and assume their roles as parents . It was recommended that a stable environment be ensured for her , in order to avoid exposing the girl to situations that could generate inner conflicts and have a negative impact on her psychological state .","The mother , informed of the conclusions of the report , indicated that she would enrol PERSON again in a counselling programme , with a psychologist the girl knew from before and was comfortable with .","A note prepared by social services on DATE showed that the relations between PERSON and the father remained tense , the father having lodged a new judicial action to obtain residence rights in respect of the child , despite the fact that she wanted to stay with her mother .","During DATE , GPE and the child were again invited to social services to discuss their case further . PERSON declared that she was aware that her father had the right to see her , but she did not want to see him , because she did not feel good in his presence . She said that when they met he brought along various people to act as witnesses . One day , in front of her mother and a friend of his father , the applicant took her by force and put her in his car . Her father called her almost daily and they could not have a normal conversation because he did not listen to her and told her she was not right .","On DATE the applicant made a request to the bailiff for the enforcement of the judgment setting out his contact rights . He asked for the necessary actions to be taken so that he could spend DATE with PERSON , starting from on DATE .","DATE . On DATE ORG authorised the request to proceed with the enforcement on a non - working day , a DATE , with a view to taking the child away for DATE .","On DATE the bailiff , in the presence of GPE , the applicant and the child , drew up a report noting that she could not proceed with the enforcement , as PERSON refused to join her father .","On DATE the applicant made a new request for the bailiff to continue with the enforcement . The bailiff refused to take further action , noting that the first request concerned DATE , which were already over . The bailiff also considered that the applicant had actually disputed the note prepared on DATE because he judged that PERSON \u2019s refusal to join him did not constitute an obstacle to the enforcement and that if she tried to resist \u201c she could be forced , obviously not by slapping or ill - treatment , but by being firmly taken by the hand by the bailiff or by the policemen and then passed over to the father \u201d ; \u201c [ the father ] in principle could be waiting at home and the child be brought to [ him ] \u201d .","The applicant lodged a judicial complaint against the bailiff , asking that the note of DATE be declared void . The complaint was dismissed by a final decision of ORG on DATE , with the reasoning that in his initial request of DATE the applicant had limited his enforcement request to the DATE holidays and that that request had been dealt with by the document of CARDINAL DATE .","The applicant lodged a new request for enforcement with the bailiff in respect of DATE . The bailiff lodged a request with the court for the enforcement to be authorised . A summons was sent to GPE on DATE . The latter replied on DATE , indicating that PERSON would be starting school on DATE and the holidays were already over . Moreover , she indicated that PERSON , DATE at the time and with the ability to make her own decisions , was still refusing to meet him .","On DATE , GPE and PERSON visited the bailiff \u2019s office . PERSON declared that she wanted her father to stop spoiling her peace of mind with his complaints and legal actions . She wanted to clarify all misunderstandings , as well as to define their future relations . In this respect she wanted to have these discussions with him at the bailiff \u2019s office , in the presence of the bailiff , a lawyer and her mother . It was agreed that PERSON would propose a date for this discussion , to be communicated well in advance to the applicant too .","By a letter of CARDINAL DATE the bailiff informed the applicant that PERSON was proposing a meeting on DATE .","On DATE , the applicant emailed the bailiff , indicating that he could not accept the proposed meeting , because accepting PERSON \u2019s invitation would mean teaching her that her moods were superior to her legal obligations , especially in a vital issue such as relations with a parent .","DATE . According to the report drawn up by the bailiff on DATE , PERSON declared that she was disappointed that her father had not come and that he considered her request to meet him a sign of disrespect . She further stated that she did not understand why her father had lodged numerous complaints with the police , the bailiff , the prosecutor and social services , when no one had ever been opposed to her having a personal relationship with him , especially given the fact that they communicated very often by telephone . She declared that she was aware that her father had the legal right to visit her , but at the same time she also had the same right to visit him when she wanted to , without being forced against her will to exert this right . She further stated that the applicant had said to her that she did not have the right to choose whether she wanted to be with him or not , because he was the one who had to decide and she had to listen to him .","On DATE , GPE lodged a civil action on behalf of PERSON to have the applicant \u2019s contact rights redefined in the sense that PERSON would have the freedom to choose the dates and means of maintaining the personal links with her father . PERSON indicated that the girl started to fear that she would be taken by force against her will and had asked her to do everything possible to avoid such disturbing events and make sure that her right to meet her father when she wanted and when she needed it was officially recognised . Hence the civil action lodged by GPE","A report on the psychological assessment of the child indicated that PERSON was suffering from slight emotional immaturity , shyness and social introversion , and was afraid of being separated from her mother . She presented feelings of fear in respect of the father , hostility and aggressiveness . The cause of these feelings proved to be her emotional identification with the mother but also the methods chosen by her father to enforce his contact rights with her .","In a decision of DATE , the county court considered that it was its duty to establish a balance between the necessity to pursue the best interest of the child against the right of the divorced parent who did not have residence rights to maintain personal relations with the child . It then considered that the girl \u2019s wishes could not represent the only criteria to be taken into account when deciding on the specific way of maintaining personal links between the parent and the child . Therefore it concluded that there was no need to modify the contact schedule .","No information is available in the case file as to whether this decision was appealed against .","The initial quantum of the child support to be paid by the applicant to the child was set out in the divorce decision of DATE . Since then GPE asked twice for an increase in the amount , in proportion to the increase in the applicant \u2019s income . Her first request was allowed by a final decision of ORG of DATE .","The second action was allowed in a first - instance judgment of DATE . The GPE ORG increased child support from CARDINAL NORP lei ( PERSON ) , MONEY ( ORG ) , to ORG CARDINAL ( approximately EUR CARDINAL ) .","The applicant lodged an appeal on points of law , arguing that a child could not have higher needs than the equivalent of the minimum salary per economy ( RON CARDINAL , approximately ORG CARDINAL ) and it had not been proven what needs were meant to be covered by this increase . He held that the fact that the mother had interfered with the child \u2019s compliance with his right of contact meant that he had no guarantees that the child support would be spent in the best interest of the child . There were no guarantees that the mother , in order to satisfy the momentary wishes of the child and to keep the child on her side , would not use the money to buy heroin to the girl .","By a final decision of DATE , ORG dismissed the appeal , by showing that LAW provided that the level of child support was determined according to the financial means of the debtor and that the obligation to pay child support and the obligation of the mother to comply with his contact rights were independent of each other .","From the information submitted by the applicant , it appears that he lodged a separate civil action in order to obtain residence rights in respect of E. No information is available as to the final outcome of these proceedings .","The applicant also lodged various civil and criminal complaints against the prosecutors investigating his complaint against ORG and against the lawyer representing her in the different proceedings , accusing counsel of inciting PERSON to show disrespect to the final judgment of DATE .","The relevant provisions of LAW and of LAW are stated in the ORG \u2019s judgment in the case of GPE v. GPE , ( no . CARDINAL , \u00a7 \u00a7 DATE and CARDINAL , DATE ) . The role and responsibilities of the local public authorities for social assistance and child protection as well as the relevant provisions of Law no CARDINAL\/CARDINAL on child protection are described in the judgment PERSON , ( no . CARDINAL , \u00a7 DATE and DATE , CARDINAL DATE ) .","Article CARDINAL of the Criminal Code provides :","\u201c It shall be an offence punishable by CARDINAL to CARDINAL months\u2019 imprisonment or a fine for CARDINAL of the parents of an under - age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child .","The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents CARDINAL of the parents from having personal relations with an under - age child on the terms agreed by the parties or laid down by the appropriate body .","Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim .","No criminal liability shall be incurred where there has been reconciliation between the parties . \u201d","Article CARDINAL \u00a7 QUANTITY of the Law no . CARDINAL provides that a child who has attained a degree of maturity has the right to express his \/ her opinion freely on any matter concerning him \/ her . Paragraph CARDINAL of the same article provides that a child who has attained the age of ten must be listened to in any judicial or administrative procedure concerning him or her . Paragraph CARDINAL provides that the child \u2019s opinions shall be taken into account and relied upon to the necessary extent , depending also on the age and maturity of the child ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91619","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2009,"docname":"WOODWARD v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , ORG , ORG . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows\u2019 benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The applicant was in receipt of child benefit at the time of his claim .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100778","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2010,"docname":"ROSE v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON and Mr PERSON , lawyers practising in GPE and GPE , respectively .","The applicant is a military officer of the NORP PERSON holding the rank of a Lieutenant Colonel ( Oberstleutnant ) .","On DATE the applicant published an article in the journal \u201c PERSON \u201d . \u201c PERSON \u201d is a journal for politics , culture and economy which is published bi - DATE with a print run of CARDINAL copies per issue . It is available in selected bookshops , by subscription and on the internet . The article was titled \u201c Spirit or evil spirit of the general officers \u201d ( \u201c Geist oder ORG der ORG \u201d ) and criticised the process of coming to terms with the army 's past and the NORP generals ' role in the GPE conflict .","Extracts of the article read as follows :","\u201c It can be ruled out that the general officers , for reasons of intellectual deficiency , could not realise what was going on . ( ... ) As stupidity can thus be ruled out , only the second alternative remains as an explanation , which is : opportunism , cowardice , unscrupulousness . ( ... )","If the NORP generals had just CARDINAL spark of sense of honour , justice and morals , the Inspector General and the generals of the different services would have refused to obey ORG orders which breached international law and were unconstitutional . \u201d","The journal mentioned the applicant 's military rank with the addition that the article exclusively contained the author 's personal views .","On DATE the applicant 's supervising officer imposed a disciplinary fine of CARDINAL on the applicant for having published statements which were suited to debase his superior generals in a defamatory way .","On DATE the applicant 's disciplinary appeal was rejected .","On DATE ORG ( Truppendienstgericht S\u00fcd ) rejected the applicant 's further appeal . That court considered that the applicant had the right publicly to express his opinion even in an exaggerated and polemic way . However , this right had to cede if the statement infringed on another person 's human dignity . ORG found that the applicant 's statements did not fall within the ambit of the right to freedom of expression ( LAW , see \u201c relevant domestic law \u201d , below ) , because they infringed on the concerned generals ' human dignity . It followed that the applicant had disrespected his duties to exercise self - restraint , to respect the dignity , the honour and the rights of his comrades , to maintain discipline and to respect his superiors ' rank even when off duty ( Articles QUANTITY and DATE , DATE ( CARDINAL ) and CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW ORG ( GPE ) , see \u201c relevant domestic law \u201d , below ) .","On DATE ORG refused to accept the applicant 's constitutional complaint for adjudication for lack of prospect of success . Contrary to ORG finding , ORG did not consider that the impugned statements infringed on the concerned generals ' human dignity ; neither did they amount to abusive insult ( Schm\u00e4hkritik ) . The right to freedom of expression protected value judgment and statements of facts as a prerequisite to form one 's opinion . The statements made by the applicant were an expression of opinion which clearly fell within the ambit of that right .","It followed that the courts had to balance the competing interests in the light of the aim pursued by the relevant provisions of LAW , which was to preserve the proper functioning of the GPE . This aim had to be preserved by the military officers both in their professional and in their private conduct . The functioning of the LOC could be jeopardised by private statements which were suited to demoralise and undermine discipline within the army . Under these circumstances , the right to freedom of expression had to cede . According to ORG , ORG had respected these principles when applying the relevant provisions of LAW . ORG had assumed that the applicant had violated his duty to exercise self - restraint with regard to the impugned statements . This could lead to undermining the applicant 's own authority and put into question his loyalty . The applicant 's statements , in which he denied the generals any sense of honour , justice and morals , were suited to debase the generals and to expose them to derision . This could jeopardise military cooperation , mutual trust and the readiness to stand by one another . Furthermore , the applicant had breached his legal obligation to preserve his superiors ' authority , as the terms employed exceeded any form of rational criticism . To preserve the superiors ' authority was necessary for the ORG 's internal order . ORG considered that this weighing of interests was not objectionable from a constitutional point of view . There was no doubt that the manner the applicant chose for expressing his opinion , in particular the personal attacks , was suited severely to disturb the Bundeswehr 's functioning . It did not violate the right to freedom of expression if such behaviour was not permitted , but was treated as a disciplinary offence .","This decision was served on the applicant 's counsel on DATE .","LAW ) , insofar as relevant , reads as follows :","\u201c ( CARDINAL ) Every person shall have the right freely to express and disseminate his opinions in speech , writing , and pictures and to inform himself without hindrance from generally accessible sources . Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed . There shall be no censorship .","( CARDINAL ) These rights shall find their limits in the provisions of general laws , in provisions for the protection of young persons , and in the right to personal honour .","... ) \u201d","Article CARDINALa of LAW provides :","Article CARDINALa [ Restriction of certain basic rights by laws respecting defence and alternative service ]","\u201c ( CARDINAL ) Laws respecting military and alternative service may provide that the basic right of members of ORG and of alternative service freely to express and disseminate their opinions in speech , writing , and pictures ( first clause of paragraph ( CARDINAL ) of LAW ) ... be restricted during their period of military or alternative service . \u201d","The relevant provisions of LAW GPE ) read as follows :","Article CARDINAL ( duties of a superior )","\u201c ( CARDINAL ) The superior shall serve as an example both in his actions and in the performance of his duties .","( ... )","( CARDINAL ) When making statements on or off duty , officers have the duty to exercise self - restraint in order to maintain confidence in their position as a superior . \u201d","Article CARDINAL ( camaraderie )","\u201c The ORG 's unity considerably depends on camaraderie . It obliges all soldiers to respect their comrades ' dignity , honour and rights and to stand by them in case of danger and need . This includes mutual respect and the acceptance of other opinions . \u201d","DATE ( behaviour on and off duty )","\u201c ( CARDINAL ) The soldier has the duty to maintain discipline and to respect his superior 's position both on and off duty .","( CARDINAL ) His conduct has to comply with the ORG 's reputation and with the respect and confidence necessary for the service as a soldier . When off duty , the soldier has to behave outside the army accommodations and LOC in a way that does not seriously impair the ORG 's reputation and the confidence which is necessary for his official standing . \u201d","DATE ( disciplinary offence )","\u201c ( CARDINAL ) A soldier who intentionally breaches his duties commits a disciplinary offence . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105291","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2011,"docname":"CASE OF ORLIC v. CROATIA","importance":3,"conclusion":"Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in Punat , on the LOC island in GPE .","The applicant was in active military service with the former ORG ( hereinafter : \u201c the ORG \u201d ) for DATE , until DATE , when he voluntarily left the ORG and moved from PERSON , GPE , where he held a specially protected tenancy of a flat given to him by the ORG , to GPE , GPE .","The applicant made himself available for service in the NORP army . He was unemployed until DATE , when he found civilian employment . He then served in the NORP army DATE and DATE and eventually retired on DATE .","In the meantime , on CARDINAL DATE the Government adopted the Decree on the Prohibition of All Real Estate Transactions in GPE ( ORG o zabrani raspolaganja nekretninama na teritoriju PERSON \u2013 \u201c the Decree \u201d , published in ORG no . CARDINAL\/CARDINAL of DATE ) , which banned all transactions in respect of immovable property situated in GPE and belonging to the Former GPE \u2019s federal institutions or legal entities having their seat in CARDINAL of its former federal units . The Decree entered into force on DATE .","The applicant had a specially protected tenancy of a flat in GPE , GPE . On CARDINAL DATE the applicant returned that flat to the ORG , in order to obtain priority for the allocation of another flat .","On DATE the applicant was given the right to purchase a flat in GPE by the ORG and moved into the flat with his family .","Pursuant to the Government \u2019s Decree of DATE , all possessions of the former ORG came under the ownership of GPE .","On DATE GPE declared its independence .","On DATE ORG and the ORG entered an agreement by which ORG guaranteed the personal safety of those members of ORG of the ORG who did not wish to leave the GPE area and to respect their acquired rights .","On DATE ORG and the ORG entered into a further agreement by which ORG guaranteed the personal safety of those members of the ORG who did not wish to leave GPE upon the termination of their service in the ORG and accepted to respect the inviolability of their private property and their continuing right to occupy the flats given to them by the ORG .","From DATE until his eviction in DATE the applicant paid the rent and all the charges in respect of the flat in GPE to ORG . Until DATE the bills were issued in the name of GPE , the previous holder of a specially protected tenancy of the same flat . From DATE the bills were issued in the applicant \u2019s name .","In DATE the applicant received part of a house in Punat on the island of GPE , GPE by way of a gift from his father .","In DATE the ORG brought a civil action against the applicant in ORG ( PERSON ORG ) , seeking his eviction . The ORG argued that , as the owner of the flat , it had the right to seek the eviction of the applicant because the decision issued by the ORG , granting the applicant the right to purchase the flat in question , had been contrary to the Decree . The ORG sought repossession of the flat .","In his defence dated DATE the applicant maintained that he had served as a ORG officer and that the ORG had allocated the flat in question to him and that , therefore , he had had a valid legal basis for occupying the flat . He further argued that he had had a specially protected tenancy of a flat in PERSON which he had given up in order to obtain a specially protected tenancy of a flat in PERSON . He also submitted that he , at the invitation of the NORP authorities , had made himself available to serve in the NORP army and that he had CARDINAL schoolchildren .","On DATE ORG found in the ORG \u2019s favour and ordered the applicant to vacate the flat . The court found that the ORG owned the flat and that the applicant had no legal entitlement to occupy it . The relevant part of the judgment reads as follows :","\u201c It is disputed between the parties whether the defendant \u2019s occupancy is based on a valid legal entitlement .","It is to be noted in that connection that the defendant had moved into the flat in question on the basis of a decision of the [ ORG ( PERSON garnizona ) no . CARDINAL - CARDINAL - CARDINAL of DATE . Under sections CARDINAL and CARDINAL of the Decree on the Prohibition of All Real Estate Transactions in GPE ( ORG ) , the [ aforesaid ] decision is null and void , and can not serve as a valid legal basis for acquiring a specially protected tenancy , as [ the grounds for doing so ] are those listed in LAW . The above - mentioned Decree entered into force on DATE , while the decision of ORG was not issued until DATE , which was after the entry into force of the above - mentioned Decree . Since a ... legal act contrary to the provisions of the Decree is null and void ... which entails a requirement that the legal position of the parties to such a contract has to be the same as before the contract was concluded ... the plaintiff \u2019s claim is to be granted ... \u201d","The applicant lodged an appeal whereby he argued that before it had declared its independence , GPE had had no authority to enact any decrees concerning the assets of the ORG . He also relied on the agreement between ORG and the ORG . He reiterated his argument that he , when leaving the ORG , had acted at the invitation of the NORP authorities and had made himself available to serve in the NORP army .","On DATE ORG ( \u017dupanijski sud u ORG ) upheld the first - instance judgment , endorsing the reasoning of the first - instance court , and dismissing the applicant \u2019s argument that GPE had had no authority to adopt the Decree . The relevant part of the judgment reads as follows :","\u201c ... the first - instance court established that the defendant had occupied the flat in GPE , PERSON , on the basis of a decision of ORG ... which is null and void under sections CARDINAL and CARDINAL of the Decree ... and therefore can not be considered as a valid legal basis for acquiring a specially protected tenancy , [ in contrast to ] the [ grounds ] listed in section CARDINAL \u00a7 CARDINAL of LAW ... The Decree entered into force on DATE , while the decision of ORG was not issued until DATE , which was after the entry into force of the above - mentioned Decree . In view of the nullity of the said decision , the plaintiff \u2019s claim was granted ...","The factual findings and legal standpoints of the first - instance court are accepted by this court as correct .","The defendant argued that , before it had declared its independence , GPE had had no authority to enact any decrees concerning the assets of the ORG because these had been federal assets given to the ORG by a federal statute , namely , the YPA Assets and Financing Act ( Zakon o sredstvima i financiranju JNA ) . Therefore , GPE had had no authority to enact the Decree on the Prohibition of All Real Estate Transactions in GPE ...","These arguments are , however , ill - founded . The Decree is based on LAW , which provides that \u201c where an act or action by a federal body or by another federal republic ... goes against the territorial integrity of GPE or its interests or where such an act places it in a position of inequality within the Federation , the bodies of the Republic [ of GPE ] shall , on the basis of the right to self - determination and the sovereignty of GPE established by LAW , adopt necessary decisions in order to protect the interests of GPE . ...","Hence , the first - instance court correctly applied sections CARDINAL of the Decree ... by declaring the decision of ORG ... null and void , since it was issued after the said Decree had entered into force . Accordingly the defendant does not have a valid legal basis for occupying the flat in GPE ... and his reliance on the Agreement between GPE and the ORG of CARDINAL DATE is irrelevant .","... \u201d","NORP The applicant brought a constitutional complaint on DATE . In that complaint , the applicant argued that the flat in question had been allocated to him by the former ORG on the basis of a federal statute before GPE had declared its independence . He again reiterated his arguments that he had left the ORG at the invitation of the NORP authorities and had made himself available to serve in the NORP army .","On an unspecified date , the applicant asked ORG , as owner of the flat , to conclude a contract for the sale of the flat between the ORG as seller and himself as buyer . On DATE the applicant lodged another request with ORG , in order to legalise his occupancy of the flat . He claimed that he had a specially protected tenancy of the flat and the right to buy the flat under LAW to LAW ( PERSON o pitanjima sukcesije ) . On DATE ORG dismissed his request , finding that the Agreement cited by the applicant was inapplicable in the applicant \u2019s case .","On DATE ORG dismissed the applicant \u2019s complaint , endorsing the lower courts\u2019 reasoning .","On DATE the Rijeka Municipal State Attorney \u2019s Office ( Op\u0107insko dr\u017eavno odvjetni\u0161tvo u ORG ) sought an enforcement order in ORG for the eviction of the applicant . The enforcement order was issued on DATE . The applicant lodged an appeal , arguing that his eviction from the flat would cause him irreparable damage because he and his family would be rendered homeless . He also sought the adjournment of the eviction until a decision by ORG on his constitutional complaint had been issued .","On DATE ORG dismissed the applicant \u2019s request for an adjournment , finding that the grounds adduced were not those listed in LAW ( Ovr\u0161ni zakon ) , and that the applicant had not specified the damage he would suffer if evicted .","The applicant lodged an appeal , arguing , inter alia , that ORG had disregarded his argument that the eviction would render him and his family homeless .","On DATE ORG dismissed the applicant \u2019s appeals against the enforcement order and the decision on adjournment of the eviction , finding that the pending constitutional complaint and the irreparable damage claimed did not constitute valid grounds for successfully challenging the enforcement order .","The eviction was initially scheduled for DATE . On that occasion , representatives of ORG Attorney \u2019s ORG agreed with the applicant \u2019s request to adjourn the eviction until DATE . The applicant complied with the enforcement order and vacated the flat on DATE .","The relevant part of ORG DATE concluded between ORG and the ORG reads :","\u201c GPE guarantees the personal safely and respect for the acquired rights , including those from employment , of the members of the ORG who do not wish to leave the territory of PERSON by the date [ noted in ] section LAW at the latest . This guarantee also concerns the members of their families ... \u201d","\u201c ... leaving the NORP territory by the members of ORG is to be completed by DATE at the latest . \u201d","The relevant part of the Agreement of DATE concluded between ORG and the ORG reads :","\u201c GPE guarantees the personal safely , [ and to respect the ] inviolability of private property and continuing right to use flats , of the members of divisions , institutions and commands of the ORG who do not wish to leave the territory of GPE or the territory of GPE upon the termination of their service in the ORG , as well as [ that ] of the members of their families ... \u201d","Article CARDINAL of the LAW ( Ustav PERSON , ORG nos . CARDINAL and DATE ) reads as follows :","\u201c The home is inviolable .","A search of a person \u2019s home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law .","The occupier , or his or her representative , shall be entitled to be present during a search of a home or other LOC . The presence of CARDINAL witnesses shall be obligatory .","Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger to the life or health of people , or to property of a high value , the police may enter a person \u2019s home or other LOC and carry out a search without a court warrant or the occupier \u2019s consent and without any witnesses being present .","Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence , a search shall be carried out only in presence of witnesses . \u201d","The relevant part of LAW ( Official Gazette nos . DATE , CARDINAL\/CARDINAL , DATE and CARDINAL\/CARDINAL ) reads :","\u201c A specially protected tenancy is acquired on DATE of moving into the flat on the basis of a final decision allocating the flat or on another valid legal basis , unless otherwise provided by this LAW . \u201d","The Specially Protected Tenancies ( Sale to Occupier ) Act ( Official Gazette nos . DATE , DATE , CARDINAL CARDINAL\/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL , PERSON o prodaji stanova na kojima postoji stanarsko pravo ) regulates the conditions for the sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale .","The relevant provision of the LAW provides as follows :","\u201c Every holder of a specially protected tenancy ( hereinafter \u2018 the tenant\u2019 ) may submit a written application to purchase a flat to the ... owner ( \u2018 the seller\u2019 ) ... and the seller shall be obliged to sell the flat .","... \u201d","Section CARDINAL paragraph CARDINAL of LAW ( Zakon o vlasni\u0161tvu i drugim stvarnim pravima , ORG no CARDINAL\/CARDINAL ) reads as follows :","\u201c An owner has the right to seek repossession of his or her property from a person in whose possession it is . \u201d","The relevant part of LAW ( Zakon o parni\u010dnom postupku , ORG of ORG nos . CARDINAL , CARDINAL\/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL , DATE , DATE , DATE , CARDINAL\/CARDINAL and CARDINAL\/CARDINAL , and ORG . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL\/CARDINAL , CARDINAL , CARDINAL , CARDINAL\/CARDINAL , CARDINAL and GPE ) provides as follows :","\u201c ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .","( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .","( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . \u201d","The relevant part of ORG decision no . U - III\/CARDINAL\/CARDINAL of CARDINAL DATE reads as follows :","\u201c As regards the alleged violation of the constitutional right guaranteed under LAW , it is to be said that that a violation of that right can not occur in enforcement proceedings , as LAW guarantees the inviolability of the home , which concerns the conduct of the police during entries and searches of homes in the execution of arrest warrants or in order to apprehend a perpetrator of a criminal offence or to remove serious risk to the lives and health of persons or to valuable assets . Therefore , the provision in question is not applicable to the proceedings at issue . \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58461","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2000,"docname":"CASE OF McGONNELL v. THE UNITED KINGDOM","importance":1,"conclusion":"Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient","judges":"John Laws;Nicolas Bratza","text":["NORP The applicant bought FAC , GPE , PERSON \u2019s in DATE . A number of planning applications were made to permit residential use of the land in DATE . The applications were all refused , an appeal being dismissed by ORG in DATE . In DATE or DATE the applicant moved into a converted packing shed on his land .","In DATE the applicant , through an advocate , made representations to a planning inquiry which was considering the draft ORG no . CARDINAL ( GPE ) . In his report to the President of ORG ( IDC ) , the inspector set out the arguments led by the applicant \u2019s advocate and by the advocate for the ORG , and concluded that a dwelling on the applicant \u2019s site would be an intrusion into the agricultural \/ horticultural hinterland . He supported the ORG \u2019s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited .","NORP The President of the IDC submitted GPE , in draft , to the President of ORG on CARDINAL DATE .","The States of Deliberation , presided over by Mr PERSON , the Deputy Bailiff , debated and adopted GPE on CARDINAL and DATE . The zoning of the applicant \u2019s land was not changed .","A retrospective application for planning permission to convert the packing shed into a dwelling was rejected by the ORG on DATE as the ORG was bound to take into account GPE , according to which the site was zoned as a FAC where residential development was not allowed .","On DATE the applicant was convicted by ORG on his guilty plea of changing the use of the shed without permission , contrary to section CARDINAL(CARDINAL)(a ) of ORG ( \u201c the DATE LAW ) . He was fined MONEY , with CARDINAL days\u2019 imprisonment in default .","On DATE the ORG applied for permission under Section CARDINAL(CARDINAL)(h ) of the DATE PERSON itself to carry out the necessary works to remedy the breach of the planning legislation . The application was adjourned in ORG by the Deputy Bailiff on DATE for a date to be fixed . The Deputy Bailiff was also unwilling to hear the matter on the ground of having dealt with the applicant when he was Her Majesty \u2019s Procureur .","A further application on the applicant \u2019s behalf for permission to continue living in the shed was dismissed by the IDC on DATE , and a request for the section CARDINAL(CARDINAL)(h ) proceedings to be adjourned was dismissed by ORG . On DATE ORG comprising the Bailiff and CARDINAL PERSON granted the ORG \u2019s application under LAW ) .","On DATE the applicant \u2019s current representative made a formal application for change of use on behalf of the applicant , together with a request that continued occupation be permitted pending determination of the expected appeal against an expected refusal . The application was rejected by the ORG on DATE in the following terms :","\u201c I have to inform you that ... the ORG decided to reject your proposal for the following reason which is based on the considerations which the ORG is bound to take into account under the provisions of section CARDINAL of GPE Laws DATE - CARDINAL:\u2013","( a ) Detailed Development Plan no . CARDINAL , as approved by the GPE .","The site is located within a Developed Glasshouse Area and the ORG \u2019s written statement of policy makes no provision for the form of development proposed . I enclose for your information a copy of the written statement of policy . ... \u201d","On DATE ORG , comprising the Bailiff , by then Sir PERSON , and CARDINAL PERSON , heard the applicant \u2019s appeal . The applicant \u2019s representative accepted that the written statement provided for no development other than \u201c Developed Glasshouse \u201d in the area , but submitted that there were nevertheless reasons in the case to permit the change of use : the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land , such that it was unreasonable for the ORG to take an unduly narrow view of what it allowed under the ORG . The ORG then summed up the applicant \u2019s complaints to the PERSON , instructing them that the ultimate burden of proof was on the ORG to satisfy the PERSON that the ORG \u2019s decision was reasonable . The appeal was dismissed unanimously . The decision recites the grounds of appeal , but gives no reasons .","The ORG has been referred to CARDINAL recent official document relating to LAW generally . It is GPE , issued in DATE as a manual of reference and best practice for the information and guidance of civil servants . It has forewords by the then Bailiff and President of the GPE , Sir PERSON , and by ORG , Mr F.N. Le Cheminant . The section dealing with the LAW and law of GPE is taken from a pamphlet by a former Bailiff , and the part dealing specifically with the position of the Bailiff reads as follows :","\u201c The Bailiff is the LOC \u2019s chief citizen and representative .","The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her ORG subject to a retiring DATE . He is President of ORG , President of ORG , President of ORG , President of ORG and head of the Administration .","The Bailiff , as President of ORG , is entitled to speak on any matter and has no original vote but he has a casting vote if the Members are equally divided . In general , the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt . He places measures before the States at the request of ORG but he can also on his own initiative place any matter before the assembly .","He is , with the Lieutenant - Governor , a channel of communication between ORG and the Secretary of ORG for ORG on the one hand and on the other , the Island authorities ; and in a number of questions , as the head of ORG , he would be expected to guide the LOC authorities .","He has been relieved of some of his administrative responsibilities by the appointment of ORG which is in the nature of a co - ordinating committee with advisory powers but the Bailiff may , in his own discretion , lay before the GPE any matter which he has previously referred to the ORG providing that he gives the ORG an opportunity to acquaint the GPE with its views .","While the Bailiff is responsible for arranging the business to come before the GPE , he is not in a position to refuse to place before the GPE any question of business if so requested by Members or ORG . The assembly looks to the Bailiff for advice on matters affecting LAW .","In the course of insular legislation or in discussions arising from communications from ORG or ORG , it is the duty of the Bailiff to represent the views of the LOC in constitutional matters .","In the event of differences between the ORG and the GPE it is the historical duty of the Bailiff to represent the views of the people of the LOC . \u201d","The Bailiff is the senior judge of ORG . In DATE , he has usually occupied the offices of Her Majesty \u2019s Comptroller , Her Majesty \u2019s Procureur ( Solicitor - General and Attorney - General respectively ) and , since DATE , Deputy Bailiff , before finally becoming Bailiff . In his judicial capacity , the Bailiff is the professional judge ( with the lay PERSON ) in ORG , and is ex officio President of ORG . In his non - judicial capacity , the Bailiff is President of GPE , of CARDINAL GPE committees ( ORG , ORG , ORG and LAW ) , and he plays a role in communications between the island authorities and the government of GPE and ORG . Where the Bailiff presides in his non - judicial capacity , he has a casting , but not an original , vote .","The States of Election elects people to fill the vacancies which occur amongst the CARDINAL PERSON . PERSON sit as lay members of ORG . It is their function to determine the issues of fact referred to them , and to decide whether or not to allow an appeal . They also sit on certain of the GPE committees , either because a committee mandate requires the election of a NORP or by reason of abilities or interests personal to them . PERSON are not , however , eligible to sit on ORG , ORG or any GPE committee which administers legislation the provisions of which include a right of appeal to ORG against a decision of that committee .","The States of Deliberation exercises its legislative power in GPE in the form of LAW . In practice , a \u201c ORG d\u2019Etat \u201d is laid before the GPE , generally by CARDINAL or other of the GPE committees . Having passed through ORG , PERSON ( draft laws ) are scrutinised by ORG and other relevant departments of the GPE government before being submitted to ORG in GPE for royal assent . Ordinances do not need royal assent and are made under GPE limited common - law powers , or under powers delegated to the GPE by GPE laws or Acts of the GPE parliament applicable to GPE .","The States of Deliberation is not divided on party political lines ; members of the GPE are elected as individuals , and vote in all matters according to their consciences . All members are of equal importance , and there are no time - limits on the length of speeches or debates generally . The ORG is scheduled to meet CARDINAL times each calendar year . Sittings usually DATE .","The GPE committees conduct the government of GPE . There are CARDINAL GPE committees , to which specific administrative tasks are given by statute or delegated by ORG . Each committee is directly accountable to ORG .","None of the GPE committees has legal supremacy over the others , although ORG is the most important . It oversees ORG matters and examines all proposals and reports which are to be placed before ORG . The committees , each of which has a Chief Officer or Chief Executive , are supported by a professional civil service of CARDINAL staff .","ORG , one of the GPE committees , appoints officials to fill certain offices in the States\u2019 service when those offices become vacant . With limited exceptions , it appoints at the level of Senior Officer PERSON CARDINAL or above . The offices include ORG and other senior civil servants such as senior medical personnel , the Prison Governor and the Chief Officer of Police . It has never appointed a Chief Executive of the ORG . ORG met CARDINAL times in DATE prior to DATE .","ORG has the power to declare a state of emergency , to make emergency regulations where the population or a substantial portion of it risks being deprived of the essentials of life , and to make other essential arrangements in the case of hostile attack by a foreign power . It has met CARDINAL times in DATE . On none of those occasions was a state of emergency declared .","ORG , which meets about once a month , reviews and revises ORG , reviews and drafts PERSON and , in certain cases , orders that an GPE shall come into force pending consideration by ORG . The latter function has been used on CARDINAL occasions in DATE .","The Rules of Procedure Committee considers the Rules of Procedure in relation to assemblies of ORG , receives representations from the GPE and makes representations to the GPE for amendments to the Rules . It has met CARDINAL times in DATE .","The Bailiff \u2019s role in communications between the island authorities and the government of GPE and ORG arises from his historical function of representing the views of the islanders to the ORG . The Bailiff represents a GPE committee \u2019s views outside the island when specifically requested to do so , and in accordance with a clear mandate . Representations are generally on behalf of the smaller committees . Examples of this function are the Bailiff \u2019s involvement in negotiating the level of fees payable in respect of GPE students attending higher education institutions in GPE , and in requesting the government to ensure that FAC should have slots for aircraft from regional airports such as GPE .","The States Supervisor , the Chief Officer of ORG , is the committee \u2019s senior adviser on policy , and is also head of the GPE civil service . He liaises with other senior civil servants in relation to all proposals for legislation and other major administrative items submitted by the various committees to ORG and comments on them for the benefit of ORG deliberations on them . He also gives guidance to the Chief Officers of other committees and attends meetings of those committees where appropriate .","Section CARDINAL(CARDINAL)(a ) of GPE DATE provides :","\u201c A person shall not , without the permission in writing in that behalf of ORG , carry out development of any land . \u201d","Section CARDINAL(a ) provides :","\u201c In exercising its powers under the provisions of the last preceding section the ORG shall take into account the ORG and ORG when approved by the GPE and any relevant Detailed Development Plans when so approved . \u201d","In the case of ORG v. ORG ( DATE ) , a challenge was made to the participation of the Bailiff as a judge in ORG in an action against ORG , CARDINAL of the major GPE committees . ORG noted that the then Bailiff , at first instance , had held :","\u201c Insofar as the constitutional position is concerned ... my first duty is to the ORG in all matters , and I do not espouse causes of the GPE . ... The point has been raised as to my casting vote ... the vote is to be cast constitutionally . The way I defined that was to vote against any proposition before the LAW and only if that vote impinged on my conscience would I contemplate any other course . \u201d","In connection with the existence of an appeal to it , ORG noted :","\u201c ... the decision upon a submission that the Bailiff ... is disqualified by interest from hearing any matter should in the first place be made by the Bailiff ... From that decision an appeal lies to this ORG . \u201d","As to the participation of the Bailiff , ORG found that :","\u201c ... the Bailiff is invested by law with duties in ORG and in the GPE . The consequence of this dual function is that he has on occasion to take part in the exercise by the court of jurisdiction over the GPE . I do not think that on these occasions his responsibility in the GPE disqualifies him from discharging his responsibility in this ORG . He can properly discharge both responsibilities because although he is a member of the GPE his special position there means he is not responsible for the decisions of the GPE or the acts of its agencies ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57886","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1994,"docname":"CASE OF WYNNE v. THE UNITED KINGDOM","importance":3,"conclusion":"No violation of Art. 5-4","judges":"C. Russo;John Freeland","text":["ORG In DATE the applicant was convicted of the murder of a woman whom he had violently assaulted . He was sentenced to a mandatory term of life imprisonment . At that time the doctor who examined him found no signs of mental illness or abnormality . In DATE he was released on life licence after a positive recommendation by ORG .","ORG In DATE the applicant killed a DATE woman who was placing flowers on a family grave in a GPE cemetery . He cut her throat with a knife . In DATE he pleaded not guilty to murder , but guilty to manslaughter on the ground of diminished responsibility . This plea was accepted by the court and in DATE a discretionary sentence of life imprisonment was imposed ( see paragraph CARDINAL below ) . The trial judge considered that a life sentence was appropriate in view of the extreme danger to the public which the applicant represented . The court , at the same time , revoked his life licence under section CARDINAL ( CARDINAL ) of LAW DATE ( \" LAW \" ; see paragraphs CARDINAL and CARDINAL below ) . The applicant claims that he was informed in DATE by prison officers at FAC that he was subject to the regime for discretionary life sentences .","ORG In DATE the applicant was transferred to the hospital wing of FAC . Since then he has been transferred to FAC where he is held as a \" Category A \" ( high security ) prisoner .","ORG The applicant was considered for parole by ORG in DATE . ORG recommended that his case be referred again to the local review committee in DATE . By letter dated DATE to the applicant \u2019s Member of ORG , ORG gave the following information :","\" In accordance with paragraph CARDINAL [ of LAW of LAW ] , the trial judge and Lord Chief Justice were consulted in DATE . In the light of their views , it was decided that [ the applicant \u2019s ] case should be referred to the local review committee , as the first stage in a formal review by ORG , in DATE .","The local review committee considered the case at that time [ DATE ] and ORG considered it in DATE . ORG did not feel able to recommend [ the applicant \u2019s ] release and recommended instead that it should be referred to the local review committee ( as the first stage in a further formal review ) in DATE . This recommendation was accepted and [ the applicant ] was informed accordingly . He should have been told in DATE , but owing to an oversight at Gartree I am afraid that he was not informed until DATE . You will appreciate that I can not forecast what the outcome of the next review will be or say when [ the applicant ] might be released . When ORG consider [ the applicant \u2019s ] case in DATE the tariff will have been satisfied and the question of risk will be the overriding consideration . Indeed , ORG will have borne the question of risk in mind in making their recommendation as to the date of the next review . As you know , the safety of the public is paramount and no life sentence prisoner will be released if the assessment of risk is unsatisfactory , no matter how long he has been detained . \"","ORG He subsequently learned that the \" tariff \" period fixed by the trial judge in respect of his second offence expired in DATE ( see paragraph CARDINAL below as regards the \" tariff \" period ) .","ORG In a ORG memorandum dated DATE the applicant was informed that the \" tariff \" in respect of his conviction in DATE had now been served and that his continued detention was based on the risk he represented .","ORG Murder carries a mandatory sentence of life imprisonment under ORG DATE . A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge . Such a discretionary life sentence of imprisonment may also be passed in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside ( see , in this connection , GPE PERSON and PERSON v. the GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL ) .","ORG Under LAW of LAW the Secretary of ORG may release on licence a person sentenced to life imprisonment only if recommended to do so by ORG , and after consultation with the Lord Chief Justice of GPE and the trial judge if available . By virtue of section CARDINAL ( CARDINAL ) the Secretary of ORG may revoke the licence of a person whose recall to prison is recommended by ORG .","ORG Under LAW ( CARDINAL ) of LAW , if a person subject to a licence is convicted on indictment of an offence , the trial court may , whether or not it passes any other sentence on him , revoke the licence .","ORG The effect of revocation of a licence , whether by the Secretary of ORG or by a court , is that the person is liable to be detained in pursuance of his sentence ( section CARDINAL ( CARDINAL ) of LAW ) .","It is the duty of ORG to advise the Secretary of ORG with respect to , inter alia , the release on licence under LAW , and the recall CARDINAL , of persons whose cases have been referred to ORG by the Secretary of ORG ( section CARDINAL of LAW ; see also the above - mentioned GPE , PERSON and PERSON judgment , pp . DATE , paras . CARDINAL ) .","ORG Prior to DATE , in respect of both mandatory and discretionary life sentences , the Secretary of ORG would receive the views of the judiciary ( the trial judge and the Lord Chief Justice ) on the period deemed necessary to satisfy the requirements of retribution and deterrence ( \" the tariff period \" ) and of ORG on the question of risk . The Secretary of ORG would decide when , if at all , it was appropriate to release the prisoner on life licence .","He accepted the views of the judiciary , in discretionary life sentence cases , as to the length of the tariff period . However , in mandatory life sentence cases he formed his own judgment on that question , taking into account the views of the judiciary ( for the distinction between discretionary and mandatory life sentences , see the above - mentioned LAW , PERSON and PERSON judgment , pp . CARDINAL , paras . CARDINAL ) .","ORG Following the judgment of ORG in the case of GPE , PERSON and PERSON ( loc . cit . ) changes to the procedures for the release of discretionary life prisoners were introduced by LAW DATE ( \" the CARDINAL LAW ) . ORG decided , however , not to extend these changes to mandatory life sentences . Under LAW of this Act discretionary life prisoners are now informed by the trial judge , in open court , of the tariff period appropriate for the offence . After the expiry of that period , the prisoner has a right to be released on life licence if and when ORG decides that it is safe to do so . They are entitled to appear before the ORG in person , to see all the reports placed before it , and to call witnesses and submit documentary evidence . When the ORG decides that a prisoner should be released the Secretary of ORG is under a duty to do so ( section CARDINAL ( CARDINAL ) of the DATE Act ) .","Section CARDINAL ( CARDINAL ) ( a ) of the DATE Act specifically excludes from eligibility for review under the new procedures a discretionary life prisoner who is also serving a mandatory life sentence .","ORG In the debate in ORG on DATE concerning this legislation , the Minister of ORG for ORG made the following statement concerning the differences between mandatory and discretionary life sentences :","\" Mandatory life sentence cases ... raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases . In a discretionary case , the decision on release is based purely on whether the offender continues to be a risk to the public . The presumption is that once the period that is appropriate to punishment has passed , the prisoner should be released if it is safe to do so .","The nature of the mandatory sentence is different . The element of risk is not the decisive factor in handing down a life sentence . According to the judicial process , the offender has committed a crime of such gravity that he forfeits his liberty to the ORG for the rest of DATE . If necessary , he can be detained for life without the necessity for a subsequent judicial intervention .","The presumption is , therefore , that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner \u2019s release than by his continued detention . In exercising his continued discretion in this respect , the Home Secretary must take account not just of the question of risk , but of how society as a whole would view the prisoner \u2019s release at that juncture . The Home Secretary takes account of the judicial recommendation , but the final decision is his . \"","ORG In relation to mandatory life prisoners , the Secretary of ORG continues to decide the length of the tariff after considering advice from the judiciary and any representations which the prisoner wishes to make . After the expiry of that period , he has power to release the prisoner on life licence if recommended to do so by ORG . The decision on whether to release is for him alone .","ORG On DATE the Secretary of ORG made a statement in ORG explaining his practice in relation to mandatory life prisoners . The statement emphasised that before any mandatory life prisoner is released on life licence , the Secretary of ORG","\" will consider not only , ( a ) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and , ( b ) whether it is safe to release the prisoner , but also ( c ) the public acceptability of early release . This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice \" .","ORG In determining the principles of fairness that apply to the procedures governing review of mandatory life sentences , the LANGUAGE courts have recognised that the mandatory sentence is , like the discretionary sentence , composed of both a punitive period ( the \" tariff \" ) and a security period . As regards the latter , detention is linked to the assessment of the prisoner \u2019s risk to the public following the expiry of the \" tariff \" ( NORP v. ORG , ex parte Bradley ( ORG ) [ DATE ] CARDINAL Weekly Law Reports CARDINAL ; NORP v. ORG , ex parte ORG ) [ DATE ] CARDINAL All England Reports CARDINAL ; NORP v. Secretary of ORG for ORG , ex parte PERSON ( judgment of ORG DATE ) ; NORP v. ORG , ex parte Creamer and Scholey ( judgment of ORG of DATE ) ) .","ORG In NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL ORG , ORG observed that , in contrast with the position as regards discretionary life sentences , the theory and the practice in respect of mandatory life sentences were out of tune .","In his speech , with which the other Law Lords agreed , Lord PERSON explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a \" tariff \" period to reflect the requirements of retribution and deterrence . A mandatory life prisoner knew that once he had served the penal element of his sentence the penal consequences of his crime had been exhausted .","Nevertheless , the Secretary of ORG was not obliged to adopt the judicial view of the \" tariff \" period and it was he who was entrusted with the task of deciding on the prisoner \u2019s release . He was entitled to depart from the judge \u2019s advice and to have regard to broader considerations of a public character than those which applied to an ordinary sentencing function . He added ( loc . cit . , p. CARDINAL ) :","\" The discretionary and mandatory life sentences , having in the past grown apart , may now be converging . Nevertheless , on the statutory framework , the underlying theory and the current practice there remains a substantial gap between them . It may be - I express no opinion - that the time is approaching when the effect of the CARDINAL types of life sentence should be further assimilated . But this is a task for ORG , and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the ORG , through the medium of judicial review . \"","Lord PERSON considered that , having regard to the rights which discretionary prisoners had , the Secretary of ORG was required to comply with the following requirements of procedural fairness when fixing the penal element in a mandatory life sentence : the Secretary of ORG must inform such a prisoner of the judicial advice on the length of the \" tariff \" , and give him the opportunity to make written representations on that subject before he decides on the appropriate term of DATE . If the Secretary of ORG departs from the judicial advice , he must give reasons for doing so ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-4"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101352","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2010,"docname":"LOBANOVS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","Alleged ill - treatment and investigation","On DATE , the applicant was found guilty of aggravated infliction of bodily harm and sentenced to DATE imprisonment . The applicant began to serve his sentence in GPE prison .","On DATE , due to violations of the internal prison rules , the applicant was transferred from GPE prison to GPE prison and on DATE he was transferred to Daugavpils prison .","According to the applicant , on DATE in NORP prison he had felt weak due to being on hunger strike , and had lain down on the floor . A prison guard had approached him and kicked him in the left knee once . DATE another prison guard kicked him in the left side CARDINAL times . Afterwards , on DATE the prison guards humiliated the applicant several times by lifting him up together with his bed and throwing it onto the floor .","On DATE the applicant complained to the prison doctor about permanent pain in his left knee allegedly caused by ill - treatment by a prison guard . According to the medical report the doctor detected a deformation in the joint of the applicant 's left knee . It also stated that the knee was not swollen and the skin of the knee was of a normal colour . It was concluded that the deformation of the applicant 's left knee was caused by chronic arthrosis . Following another medical examination on DATE the applicant was diagnosed with inflammation of the left knee joint .","On DATE the applicant was transferred to ORG and on DATE he was admitted to the surgical unit of the hospital , where his previous diagnosis was confirmed .","On DATE during a medical examination at the hospital the applicant complained of a swollen knee . He also stated that DATE he had fallen on his left knee .","On DATE the applicant left the hospital after having received medical treatment and having refused to have his knee operated on .","Meanwhile , on DATE the applicant had applied to ORG complaining that from DATE to DATE the NORP prison guards had ill - treated him ( see paragraph CARDINAL above ) . He also complained to ORG about the circumstances of his transfer from NORP prison to FAC DATE , alleging that he had not been provided with nutrition during the transfer .","On DATE a prosecutor from ORG met with the applicant in private and obtained statements from him .","On DATE ORG ordered a forensic medical report on the applicant 's knee injury .","On DATE the applicant underwent forensic medical tests . The medical expert 's referred to the applicant 's medical history by stating , inter alia , that in DATE the applicant has complained about pain in spine and his right leg . In order to reach a conclusion the experts requested additional medical records from ORG .","On DATE ORG dismissed the applicant 's claim concerning the conditions of his transfer to FAC .","On DATE the forensic medical expertise concluded that the swelling in the applicant 's left knee was associated with chronic changes to the knee joints caused by deforming arthrosis and bursitis .","On DATE a prosecutor of ORG decided not to initiate criminal proceedings regarding the alleged ill - treatment in NORP prison . The decision was supported by the results of the expert report and the results of the internal investigation undertaken by the head of NORP prison . According to the latter , on DATE , DATE and DATE prison guards had inspected the cell without using any force against the applicant . The applicant did not appeal against the decision to a prosecutor of a higher rank .","From DATE to CARDINAL DATE the applicant was repeatedly admitted to ORG concerning his joint disease .","Alleged inference with the applicant 's right to respect for his correspondence","According to the applicant , on DATE he complained to ORG that the PERSON prison administration had confiscated complaints he had drafted to various ORG institutions . He also asked ORG to forward his letters , without specifying their contents , to ORG and the Minister of Justice . The letters to the latter authorities were in a sealed envelope attached to the letter addressed to ORG .","Following the applicant 's inquiry on DATE ORG informed the applicant that it had not received his complaint of DATE .","On DATE , naming the document \u201c a copy of the letter of CARDINAL July DATE \u201d , the applicant sent to ORG an identical complaint with attached sealed letters addressed to ORG and ORG .","On DATE ORG asked the ORG prison authority to examine the applicant 's complaints , whereas the letters addressed to other ORG institutions were returned to the applicant informing him that they could be sent at his own expense directly to the recipients .","On DATE ORG replied to the applicant on the merits of his complaint of DATE , which was allegedly the copy of the letter from DATE .","On DATE the applicant repeatedly asked ORG to forward a sealed envelope to ORG .","Following the applicant 's inquiry on DATE ORG informed the applicant that it had not received his complaint of DATE .","On DATE and DATE ORG received letters from the applicant .","Under section CARDINAL of the code convicted persons have the right to write proposals , submissions and complaints to ORG institutions , public organisations and officials . Proposals , submissions and complaints of convicted persons shall be sent to the appropriate persons and decided in accordance with the procedures prescribed by law . Proposals , submissions and complaints addressed to the prosecutor shall not be monitored and shall be dispatched within TIME ( as worded at the material time ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107701","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2011,"docname":"CASE OF ROZHIN v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG found the applicant guilty of membership of an organised criminal group , several counts of attempted aggravated murder , intentional destruction of property and arms possession and sentenced him to CARDINAL years\u2019 imprisonment , which he was sent to serve in correctional colony no . CARDINAL , GPE .","On DATE the applicant brought an action with ORG , complaining of various violations of his rights by the administration of correctional colony no . CARDINAL . In particular , he complained that on a number of occasions in DATE and DATE the director of the correctional colony had ordered him to be placed in a punishment cell , which had entailed a serious worsening of the general conditions of his detention and limitation or deprivation of his rights as a detainee . The applicant also argued that the colony authorities had unlawfully seized his writing utensils , and had forbidden him to use the colony library and to purchase newspapers , magazines and books . He further alleged that they had not allowed him to have meetings with counsel and to make paid phone calls to his relatives , counsel and ORG . His biggest grievance , however , was that the administration had refused to post his complaints to various authorities in GPE and had monitored or even intercepted his correspondence with ORG . The applicant also requested that ORG ensure that he could be present at a court hearing during the examination of his complaint .","Following a number of refusals by ORG to grant the applicant \u2019s request , and the subsequent revocation of those decisions by ORG , on DATE the ORG granted leave to bring an action for an examination on the merits , and set a preliminary hearing for DATE . Subsequent hearings were held on DATE . The applicant was not informed of either of those hearings . In fact , on DATE he was transferred to another correctional colony in the town of Verkhneuralsk , GPE , QUANTITY from his previous place of detention .","On DATE the applicant was transferred to detention facility no . CARDINAL in GPE .","On DATE ORG dismissed the applicant \u2019s complaint , having found that either the restrictions on the applicant \u2019s rights had been lifted following an inquiry by prosecution authorities or they had been warranted by the applicant \u2019s placement in the punishment cell , in view of numerous instances of unlawful behaviour on his part , such as refusal to keep his cell tidy , destruction of colony property , and so on . The applicant was not brought to the hearing . Representatives of the colony administration attended the hearings before ORG and made oral submissions .","By a separate decision issued on CARDINAL DATE ORG responded to the applicant \u2019s request to be present at the hearings . In particular , ORG held as follows :","\u201c [ The applicant ] , having been convicted by the judgment of DATE of ORG , is currently serving his sentence . It appears from the case file materials that he was transferred outside GPE . [ The applicant ] lodged a complaint about the actions of the head of [ correctional colony no . CARDINAL ] , GPE ... ; accordingly , his complaint is being examined by ORG within the civil procedure . LAW of GPE , in force at the material time , does not provide for an opportunity to transfer convicts to [ ensure ] their participation in court hearings in civil cases ; therefore it is impossible for the court to ensure [ the applicant \u2019s ] presence at the hearings in the present civil case . \u201d","NORP The applicant appealed , arguing , inter alia , that ORG had unlawfully refused to ensure his presence at the hearings , despite the fact that the majority of the circumstances in dispute were exclusively within his personal knowledge and it was important for ORG to hear both parties to the proceedings , the applicant and the administration .","At a hearing on CARDINAL DATE , held in the applicant \u2019s absence , ORG upheld the judgment of CARDINAL DATE , endorsing ORG reasoning , including that on the subject of the applicant \u2019s attendance .","The Code of Civil Procedure of GPE ( ORG ) provides that individuals may appear before a court in person or may act through a representative ( LAW ) .","The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .","On several occasions ORG has dismissed as inadmissible complaints by detainees whose requests for leave to appear were refused by civil courts . It reasoned that the relevant provisions of LAW and LAW did not , as such , restrict a detainee \u2019s access to court . ORG has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court , either through a representative or in any other way provided by law . If necessary , a hearing should be held at the convict \u2019s place of detention , or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict \u2019s place of detention to obtain his \/ her submissions or to take any other procedural steps ( decisions CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) .","Under Articles CARDINAL and CARDINAL of the ORG a court may hold a session elsewhere than in a court - house if , for instance , it is necessary to examine evidence which can not be brought to the court - house .","Article CARDINAL of the ORG contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances . By a ruling of CARDINAL DATE ORG indicated that this LAW should be interpreted as , in principle , allowing a procedure to be launched to have a final judgment re - examined on account of newly discovered circumstances , such as the finding of a violation of LAW in a given case by ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110459","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2012,"docname":"CHARALAMBOUS AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Loukis Loucaides;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicants are NORP nationals . Their names , dates of birth and places of residence are set out in the FAC . They are represented by PERSON PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Ms PERSON , Mr PERSON and Mr ORG , lawyers practising in GPE .","NORP The facts of the case may be summarised as follows .","The applicants stated that they are relatives of CARDINAL NORP - Cypriot men , both civilians and army personnel , who went missing in DATE following the invasion of northern GPE by NORP armed forces . These men were listed as missing persons , the information being given to ORG and ORG .","The respondent Government stated that the relatives of ORG had already known that he had died at the time of the events in DATE but that his body could not be recovered due to the conflict . They pointed out that his name was not submitted to the authorities as CARDINAL of the men who had gone missing .","The remains of the missing men have been found during exhumations carried out by ORG for Missing Persons ( \u201c CMP \u201d ) between DATE . Further details are set out in the LOC .","On DATE the lawyer for the applicants in the group of applications ( ( nos . CARDINAL\/CARDINAL , ORG , CARDINAL , CARDINAL , ORG , DATE , DATE , ORG and ORG ) landed from GPE at GPE international airport for a DATE business and private trip as he had done before . At passport control , he was held up for TIME and then confined to the airport terminal . In TIME , after TIME , his passport was returned and he was put on a plane back to GPE . He was questioned by the NORP police on arrival as the NORP authorities had described him to the airline and NORP authorities as \u201c unwanted \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57976","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1996,"docname":"CASE OF HUSSAIN v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 5-4;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"John Freeland;N. Valticos","text":["Mr PERSON was born in DATE and is currently detained in GPE prison .","ORG On DATE , the applicant - then aged CARDINAL - was convicted at ORG of the murder of his younger brother , aged CARDINAL . The applicant had inflicted severe injuries on the infant while looking after him . He received a mandatory sentence of detention \" during Her Majesty \u2019s pleasure \" pursuant to section CARDINAL ( CARDINAL ) of ORG as amended ) ( see paragraph CARDINAL below ) . Its effect was to render the applicant \" liable to be detained in such a place and under such conditions as the Secretary of ORG [ for ORG ] may direct \" .","ORG In passing sentence on the applicant , the judge stated :","\" I regard you as someone who has demonstrated himself tobe a cruel and unfeeling young man . I think you are -certainly for the time being - a dangerous person . \"","The applicant appealed against both his conviction and sentence . ORG dismissed his appeal on CARDINAL DATE .","Mr PERSON was first detained in the youth wing of GPE prison and then in a young ORG institution before being transferred to an adult prison .","ORG Under the administrative procedures governing such sentences as that received by the applicant , a \" tariff \" period is set to fix the number of years\u2019 detention necessary to satisfy the requirements of retribution and deterrence ( see paragraph CARDINAL below ) . In this regard , in DATE the trial judge wrote to the Secretary of ORG :","\" Over DATE immediately preceding thebaby \u2019s death , [ the applicant ] had undoubtedly treated himwith very considerable violence by slapping , kicking andshaking . The baby was covered with CARDINAL bruises andhis brain and spine were injured . Since [ the ORG ever having laid hands on him , it was not possibleto discover why he had acted with such violence . [ The applicant ] is unquestionably an unscrupulous youngliar , but the most unusual feature of him was hisimpassivity . He demonstrated no feeling whatsoever forhis brother \u2019s injuries and death . This gave me the impression that he is very probably avery dangerous young man who is quite unmoved bybrutality . I am anxious that this aspect of hischaracter should be borne fully in mind whenever thequestion of release arises . He still has CARDINAL youngsiblings and their safety must be a predominantconsideration . I am deeply concerned at the appearanceof normality this young man gives ; it is probably verymisleading . I can not recommend any period for his detention . It willhave to continue until one can say with reasonablecertainty that maturation has rendered him safe . PERSON is that he is already ` old for his years\u2019 , asone police officer described him . PERSON hereinvolves much more than simply a young boy growing up . I can do no more than sound this sombre note of warning . \"","ORG It was not until DATE that the applicant \u2019s tariff was set , at DATE , by the Secretary of ORG after a confidential process of consultation involving the trial judge and the Lord Chief Justice . In the course of this process , in which the applicant had no sight of any of the documents , the trial judge recommended a period of DATE \" in view of the young age of [ the ] prisoner at the time of the offence \" ; the Lord Chief Justice agreed but stated that this should be \" the absolute minimum \" . However , the Secretary of ORG commented : \" I can not accept the judicial tariff as matching the gravity of CARDINAL of the most appalling offences I have encountered . \"","He accordingly increased the proposed tariff by DATE . The applicant first learnt about these details through a letter from ORG DATE , sent in accordance with the ORG of Lords\u2019 judgment of DATE ( see paragraph CARDINAL below ) .","ORG In the course of the applicant \u2019s detention ORG ( see paragraph CARDINAL below ) has so far considered whether or not to recommend the applicant \u2019s release on CARDINAL occasions .","ORG The first ORG review took place in DATE . The reports of progress were positive and , as later disclosed to the applicant :","\" ORG [ see paragraph CARDINAL below ] , whofelt that the risk was acceptable , considered PERSON suitable to be given a provisional release date . \"","ORG did not however recommend the applicant \u2019s release but it did recommend that he be transferred to a less restrictive category C prison with a further review to commence in DATE . At the time , the applicant did not see any of the reports before ORG and had no opportunity to appear before it .","ORG The second ORG review took place in DATE . ORG summary of the review , disclosed later to the applicant , stated :","\" ORG recommended that Mr Hussainshould be given a provisional release date ... ORG did not recommend PERSON release , butrecommended his transfer to open conditions with afurther review to commence DATE thereafter . However , the Secretary of ORG rejected the Board\u2019srecommendation and directed that he should move toanother category C prison with a further review tocommence in DATE . \"","Again the applicant did not see any of the reports on him and was afforded no hearing before ORG . He was given no reasons for the decisions taken .","ORG In the third review in DATE , ORG recommended that the applicant be transferred to open conditions with a further review in CARDINAL months\u2019 time . However , the Secretary of ORG , in exercise of his statutory powers ( see paragraph CARDINAL below ) , rejected this recommendation , directing that the applicant remain in close conditions with a further review to commence in DATE . The applicant was only informed in DATE that his release had not been recommended and about the date of his next review .","ORG In DATE , PERSON applied for judicial review ( see paragraph DATE below ) in respect of the decision communicated in DATE on the basis that he had not been shown the reports on him placed before ORG . He relied on the case of PERSON ( see paragraph CARDINAL below ) as establishing that persons detained during Her Majesty \u2019s pleasure had a right at common law to disclosure of reports .","ORG On DATE , ORG gave ORG an undertaking to reconsider the applicant \u2019s case immediately and to disclose their case file to him so that he could make informed representations . The applicant withdrew his application for judicial review .","ORG At his most recent review in DATE , the applicant was shown the reports on him that were before ORG but he was not given an opportunity to appear in person before the ORG . Following this review , the Secretary of ORG accepted ORG recommendation to transfer the applicant to open - prison conditions , which transfer took place in DATE . ORG will again consider the applicant \u2019s case in DATE .","ORG The applicant has been detained for DATE .","ORG A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder . LANGUAGE law imposes a mandatory sentence for the offence of murder : \" detention during Her Majesty \u2019s pleasure \" if the offender is under the age of CARDINAL ( section CARDINAL ( CARDINAL ) of ORG as amended ) - see paragraph CARDINAL below ) ; \" custody for life \" if the offender is DATE ( LAW CARDINAL ( CARDINAL ) of LAW DATE ) ; and \" life imprisonment \" for an offender aged CARDINAL or over ( section CARDINAL ( CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .","Mandatory life sentences are fixed by law in contrast to discretionary life sentences , which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( for example manslaughter , rape , robbery ) . The principles underlying the passing of a discretionary life sentence are :","( i ) that the offence is grave and","( ii ) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside .","Discretionary life sentences are indeterminate so that \" the prisoner \u2019s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large \" ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , CARDINAL ) .","ORG The notion of detention during Her Majesty \u2019s pleasure has its origins in statutory form in an LAW for \" the safe custody of insane persons charged with offences \" ( Criminal Lunatics Act ) , which provided that defendants acquitted of a charge of murder , treason or felony on the grounds of insanity at the time of the offence were to be detained in \" strict custody until His Majesty \u2019s pleasure shall be known \" and described their custody as being \" during His [ Majesty \u2019s ] pleasure \" .","ORG In DATE , detention during His ORG pleasure was introduced in respect of offenders aged DATE . It was extended to cover those under DATE at the time of conviction ( DATE ) and further extended to cover persons under DATE at the time when the offence was committed ( DATE ) .","ORG The provision in force at present is LAW ( CARDINAL ) of ORG as amended ) ( \" LAW \" ) which provides :","\" A person convicted of an offence who appears to thecourt to have been under DATE at thetime the offence was committed shall not , if he isconvicted of murder , be sentenced to imprisonment forlife , nor shall sentence of death be pronounced on orrecorded against any such person ; but in lieu thereof thecourt shall ... sentence him to be detained during ORG \u2019s pleasure and , if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of ORG may direct . \"","ORG In the case of NORP v. Secretary of ORG for ORG , ex parte PERSON ( DATE , unreported ) Lord Justice PERSON in ORG held as follows in respect of detention \" during Her ORG \u2019s pleasure \" :","\" At the time of sentencing , the detention orders undersection CARDINAL were mandatory . It is indeed the statutoryequivalent for young persons of the mandatory lifesentence for murder . But the sentence itself is closerin substance to the discretionary sentence of which partis punitive ( retribution and deterrence ) and the balancejustified only by the interests of public safety when thetest of dangerousness is satisfied . The fact that themandatory life prisoner may be given similar rights asregards release on licence does not alter the fact thatthe mandatory life sentence is justifiable as punishmentfor the whole of its period : see NORP v. Secretary of StateEx . p. Doody & Others [ DATE ] Q.B. CARDINAL and PERSON v. DATE ) . The order for detentionunder section CARDINAL is by its terms both discretionary andindeterminate : it provides for detention ` during ORG \u2019s pleasure\u2019 ... I would decide the present case onthe narrow ground that , notwithstanding ORG practice , the applicant should be regardedas equivalent to a discretionary life prisoner for thepurpose of deciding whether ORG rather than PERSON his case . \"","( transcript , pp . CARDINALC-CARDINALB )","The court accordingly held that the applicant in the case , detained during Her Majesty \u2019s pleasure , should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before ORG when it decided whether he should be released after his recall to prison on revocation of his licence .","ORG has changed its policy accordingly .","ORG However , in a statement in ORG made on DATE ( see paragraph CARDINAL below ) , the Secretary of ORG , Mr PERSON , explained that he included in the category of \" mandatory life sentence prisoners \" those","\" persons who are , or will be , detained during ORG \u2019s pleasure under LAW ( CARDINAL ) of ORG ... \"","ORG In NORP v. Secretary of ORG for ORG , ex parte T. and Others [ DATE ] ORG Bench CARDINAL , CARDINAL , Lord Justice PERSON in ORG ( with whom Mr Justice PERSON agreed ) said :","\" I see no reason to regard him as having any specialstatus because he was sentenced to detention [ during ORG \u2019s pleasure ] rather than to life imprisonment , despite what was said by ORG when giving judgment inReg . v. ORG , ex parte PERSON ( ORG DATE , unreported ) . The issues in that casewere very different from those with which we areconcerned . If PERSON had not been sent to hospital hecould hope to benefit from the provisions ofsection CARDINAL ( CARDINAL ) of the DATE Act [ on mandatory lifeprisoners ] ... It will be recalled that in ORG \u2019s casethe offence was murder , so the sentence was mandatory notdiscretionary . \"","On appeal ORG stated that in respect of a person sentenced to detention during Her ORG \u2019s pleasure under LAW ( CARDINAL ) of LAW for the offence of murder , the relevant provisions on release were those in LAW ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , and not those relating to a discretionary life prisoner ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL , CARDINAL ) .","Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her ORG pleasure have a \" tariff \" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular following the coming into force on DATE of LAW DATE ( \" the CARDINAL LAW ) .","ORG LAW ( CARDINAL ) of LAW DATE ( \" LAW \" ) provided , inter alia , that the Secretary of ORG , on the recommendation of ORG and after consultation with the Lord Chief Justice and the trial judge , may \" release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section CARDINAL of ORG . In this respect no difference was made between discretionary and mandatory life prisoners .","ORG By virtue of LAW ( CARDINAL ) of the DATE Act , persons detained during Her Majesty \u2019s pleasure and those life prisoners who are not discretionary life prisoners ( see paragraph CARDINAL above ) , may be released on licence by the Secretary of ORG , if recommended to do so by ORG and after consultation with the Lord Chief Justice and the trial judge . The decision on whether to release still lies , therefore , with the Secretary of ORG .","ORG The Secretary of ORG also decides the length of a prisoner \u2019s tariff . Subsequently to a ORG judgment of DATE ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL , CARDINAL G ) , the view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice . The prisoner is afforded the opportunity to make representations to the Secretary of ORG who then proceeds to fix the tariff . Where the Secretary of ORG decides to depart from the judicial recommendation he is obliged to give reasons . As a matter of practice the prisoner is informed of the Secretary of ORG \u2019s final decision .","In the second , post - punitive phase of detention the prisoner knows that \" the penal consequence of his crime has been exhausted \" ( ibid . , CARDINAL ) .","ORG A statement of policy issued by Sir PERSON , then Secretary of ORG for ORG , on CARDINAL DATE indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public .","ORG On DATE the Secretary of ORG , Mr PERSON , made a statement of policy in relation to mandatory life prisoners , stating , inter alia , that before any such prisoner is released on licence he","\" will consider not only , ( a ) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and , ( b ) whether it is safe torelease the prisoner , but also ( c ) the publicacceptability of early release . This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice \" .","ORG In a number of recent court cases involving persons detained during Her Majesty \u2019s pleasure , it has been stated that the correct test for post - tariff detention was to be whether the offender continued to constitute a danger to the public ( NORP v. Secretary of ORG for ORG , ex parte PERSON , DATE ; NORP v. Secretary of ORG for ORG , ex parte PERSON , DATE - cited above at paragraph CARDINAL ; NORP v. Secretary of ORG for ORG , ex parte PERSON ( no . CARDINAL ) , DATE ) .","ORG The DATE Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .","ORG Pursuant to section CARDINAL of the CARDINAL Act , the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction . After the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . Pursuant to ORG DATE which came into force on DATE , a prisoner is entitled to an oral hearing , to disclosure of all evidence before the panel ( see paragraph CARDINAL below ) and to legal representation . There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross - examine those who have written reports about him .","ORG For the purposes of the DATE Act , persons detained during Her Majesty \u2019s pleasure are not regarded as discretionary life prisoners ( section CARDINAL ( CARDINAL ) ) .","ORG LAW of LAW set out the constitution and functions of ORG :","\" ( CARDINAL ) For the purposes of exercising the functionconferred on it by this Part of this LAW and GPE there shall be a body known as ORG ... consisting of a chairman and not lessthan CARDINAL other members appointed by the Secretary ofState .","...","( CARDINAL ) The following provisions shall have effect withrespect to the proceedings of ORG on any casereferred to it , that is to say","( a ) the ORG shall deal with the case onconsideration of any documents given to it by theSecretary of ORG and of any reports it has calledfor and any information whether oral or in writingthat it has obtained ; and","( b ) if in any particular case ORG thinks it isnecessary to interview the persons to whom the caserelates before reaching a decision , the ORG mayrequest CARDINAL of its members to interview him andshall take into account the report of that interviewby that member ...","( CARDINAL ) The documents to be given by the Secretary of ORG under the last foregoing subsection shallinclude","( a ) where the case referred to the ORG is CARDINAL ofrelease under section CARDINAL of this Act , anywritten representations made by the person to whomthe case relates in connection with or since hislast interview in accordance with rules under thenext following subsection ;","( b ) where the case so referred relates to a person recalled under LAW of this LAW , any written representations made under that section . \"","As to the constitution of ORG , Schedule DATE CARDINAL Act further provides :","\" CARDINAL . ORG shall include among its members","( a ) a person who holds or has held judicial office ;","( b ) a registered medical practitioner who is apsychiatrist ;","( c ) a person appearing to the Secretary of ORG tohave knowledge and experience of the supervision orafter care of discharged prisoners ;","( d ) a person appearing to the Secretary of ORG tohave made a study of the causes of delinquency orthe treatment of offenders . \"","ORG always counts among its members CARDINAL ORG judges , CARDINAL circuit judges and a recorder . Cases referred to the ORG may be dealt with by CARDINAL or more members of ORG ) . In practice , ORG sits in small panels , including , in the case of life prisoners , a ORG judge and a psychiatrist . The judges on ORG are appointed by the ORG Secretary ( section CARDINAL ( CARDINAL ) of LAW ) after consultation with the Lord Chief Justice . With the exception of the new rules concerning discretionary life prisoners , similar provisions apply under LAW .","ORG Under LAW ( CARDINAL ) of LAW the Secretary of ORG established for every prison a ORG with the function of advising him on the suitability for release on licence of prisoners . It was the practice to obtain this assessment before referring a case to ORG . Before ORG reviewed a case , a member of the committee would interview the prisoner if he was willing to be interviewed . The first review by ORG was normally fixed to take place DATE before the expiry of the tariff . ORG were abolished by ORG DATE . The prisoner is now interviewed by a member of ORG .","ORG Persons serving a sentence of detention during Her Majesty \u2019s pleasure may institute proceedings in ORG to obtain judicial review of any decision of ORG or of the Secretary of ORG if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality , irrationality or procedural impropriety ( ORG Unions v. Minister for ORG [ DATE ] CARDINAL All England Law Reports CARDINAL , CARDINAL - CARDINAL ) ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-118334","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2013,"docname":"CASE OF AN\u0110ELKOVI\u0106 v. SERBIA","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Just satisfaction dismissed (out of time)","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Helen Keller;Neboj\u0161a Vu\u010dini\u0107;Paulo Pinto De Albuquerque;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant filed a civil claim against his employer , company Z , seeking the payment of outstanding holiday pay ( regres za kori\u0161\u0107enje godi\u0161njeg odmora ) due for DATE and DATE , the difference between the salary he had received and the minimum salary payable under collective agreements in force at the company for the period from DATE to DATE , statutory interest and legal costs .","Following a remittal in DATE , on DATE ORG ( PERSON ) ruled in favour of the applicant . As regards the outstanding holiday pay , the court observed that company Z had not paid DATE pay due for DATE and DATE to any of its employees , as its alleged parent company had been encountering financial difficulties . The court , however , found these facts to be irrelevant to the outcome of the applicant \u2019s claim , as according to LAW and enterprise bargaining agreements in force at the company he had been entitled to holiday pay regardless of the level of his employer \u2019s profits .","On DATE ORG ( Okru\u017eni sud ) reversed the part of ORG judgment which concerned holiday pay and legal costs , while upholding the remainder . ORG based its refusal on the finding , disregarding applicable employment law , that company Z had not paid outstanding holiday pay to any of its employees and therefore that \u201c to accept the applicant \u2019s claim would mean that the applicant would be treated more favourably than his colleagues , who had not received payment of outstanding holiday pay from their employer either \u201d . No further recourse against this judgment was available to the applicant .","It would appear that DATE a number of the applicant \u2019s colleagues lodged the same or similar claims to those of the applicant with ORG .","On DATE and DATE ORG rejected the claims of the applicant \u2019s colleagues for the same reasons as ORG had in the applicant \u2019s case . However , ORG , which , following reforms to the judicial system had become the competent appeal court , overturned both judgments on DATE and DATE , respectively . In so doing , the appeal court found that the claimants had been entitled to their outstanding holiday pay by applicable domestic law ( see paragraphs CARDINAL below ) , finding that the reasons for judgment given by ORG in their cases were irrelevant and that it had erred in law in rendering the judgments .","Article CARDINAL paragraph CARDINAL stipulated that collective bargaining agreements , labour regulations or employment contracts may provide for pay or benefits to employees over and above the rights set out in the Act .","Pursuant to clause CARDINAL ) , an employee shall be entitled to additional pay , including to holiday pay , which shall amount to a DATE average wage in the relevant industrial sector . Holiday pay shall be paid in full to employees who are entitled to DATE of DATE leave , and shall be reduced proportionally if the employee is entitled to DATE of DATE leave .","The text of clause CARDINAL ) of this agreement corresponds to clause CARDINAL of the DATE Agreement .","The text of clause CARDINAL ) of this agreement corresponds to clause CARDINAL of the DATE Agreement . Additionally , clause CARDINAL ) provides that in case of its financial inability to pay holiday pay as a lump sum , the employer may pay it in several instalments ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109565","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2012,"docname":"CASE OF SOLOMAKHIN v. UKRAINE","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska","text":["The applicant was born in DATE and lived in GPE . He died on CARDINAL DATE .","On DATE the applicant sought medical assistance from ORG No . CARDINAL ( NORP \u043c\u0456\u0441\u044c\u043a\u0430 \u043a\u043b\u0456\u043d\u0456\u0447\u043d\u0430 \u043b\u0456\u043a\u0430\u0440\u043d\u044f \u2116 PERCENT ORG \u201c the Hospital \u201d ) , where he was diagnosed as having an acute respiratory disease . He was prescribed out - patient treatment .","NORP On his next visit to the FAC on DATE the applicant was tested for his reaction to a vaccination against diphtheria . The test showed no susceptibility to diphtheria antigens .","On DATE the applicant was vaccinated against diphtheria . According to the applicant , the vaccination was contraindicated for him .","On DATE the applicant was examined by a doctor , who indicated that the applicant \u2019s state of health had improved and that the treatment had given positive results . He was diagnosed with tracheobronchitis , which was confirmed during his further visits to the doctor on CARDINAL , DATE and DATE .","From DATE the applicant spent CARDINAL a year at different medical institutions receiving treatment for a number of chronic diseases ( for instance , pancreatitis , cholecystitis , hepatitis , colitis ) .","On DATE the Chief Doctor of the Hospital reprimanded doctor Ya . and nurse Sh . for vaccinating the applicant although he had consistently objected to the vaccination and while he was being treated for an acute respiratory infection . He considered that they had violated the rules concerning vaccinations and ordered them to pass a test on those rules .","On DATE the applicant instituted proceedings in ORG in GPE against the local department of public health ( ORG \u043c\u0456\u0441\u044c\u043a\u0438\u0439 \u0432\u0456\u0434\u0434\u0456\u043b \u043e\u0445\u043e\u0440\u043e\u043d\u0438 PERSON ) and the ORG , seeking compensation for damage to his health . He alleged that the vaccination on DATE had been conducted whilst he was ill and had resulted in him suffering from a number of chronic diseases . He also complained that the vaccine had been of poor quality as it had been uncertified , had expired and had been stored in inappropriate conditions . He complained that the doctors had tried to falsify the relevant medical records and to conceal the negative effects of the vaccination .","DATE and DATE , DATE and DATE , CARDINAL and DATE and DATE and CARDINAL DATE medical expert examinations were conducted into the applicant \u2019s allegations .","On DATE the court found against the applicant . With reference to the conclusions of the medical expert examiners , the court established that the applicant \u2019s diseases had no causal link to his vaccination . It noted that the applicant had not had an allergic reaction or showed other signs that would normally have appeared within DATE following the vaccination . The only disease that could be associated with the vaccination was urticaria ( commonly known as hives ) , which the applicant had suffered from DATE after the vaccination and which could not therefore have had any causal link to it . The court also established that the applicant had not had any acute symptoms of any disease upon vaccination and therefore that his vaccination had not violated any medical rules . Furthermore , the epidemic situation in the GPE region had called for his vaccination against diphtheria . The court noted that no physical force had been applied to the applicant and that , being an adult of sound mind , he could have refused to have the vaccination , as he had done before on several occasions . The court noted that although the vaccination had not been performed in the vaccination room as required by the regulations , it had been conducted by a qualified nurse in a doctor \u2019s office , in a doctor \u2019s presence , with prior verification of the applicant \u2019s reaction to such a vaccination , and it had not caused the applicant to have any negative side - effects . The court also noted that the applicant \u2019s allegations about the quality of vaccine had been speculative and had not been confirmed by any evidence . The court observed that none of the applicant \u2019s diseases had had a causal link to the vaccination and that the applicant had spent so much time in hospital because he had been attempting to obtain disabled status . The court also examined the applicant \u2019s allegations about the alleged falsification of medical records and rejected them as unsubstantiated .","On DATE and CARDINAL DATE respectively ORG and ORG upheld the above judgment .","On DATE the applicant died of a heart attack . By letter of CARDINAL DATE the applicant \u2019s mother informed ORG of her wish to pursue the application .","The relevant section of the LAW reads as follows :","\u201c Preventive vaccinations against tuberculosis , polio , diphtheria , whooping cough , tetanus and measles are compulsory in GPE .","...","Groups of the population and categories of employees subject to preventive vaccination , including those which are compulsory , and the procedure for and scheduling of their implementation shall be specified by ORG ... \u201d","These guidelines , approved by ORG of GPE on DATE , provide for the organisation of vaccinations , set out a list of contraindications and side - effects and the procedure for informing the appropriate parties of any negative side - effects after vaccination .","On DATE ORG of ORG Recommendation DATE ) on vaccination in LOC . The relevant part of this recommendation states :","\u201c ...","NORP The recent diphtheria epidemic in some of the newly independent states is an example of the risks confronting us . CARDINAL of cases have been reported since the outbreak of the epidemic in DATE , and CARDINAL have died of a disease generally believed to have been wiped out . Other pockets of infection may attain epidemic proportions at any time : poliomyelitis , tuberculosis , tuberculous meningitis , pertussis , etc .","The diphtheria epidemic very clearly demonstrated that health risks could not be contained locally . With CARDINAL of people now free to travel from CARDINAL country to another , it has not been possible to halt such epidemics . The eruption of ethnic conflicts producing mass movements of refugees has created new problems in this respect , and the austerity imposed by economic reforms has worsened the situation .","...","The ORG therefore recommends that ORG invite member states :","i. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases , and to arrange for efficient epidemiological surveillance ;","ii . to grant increased assistance as a matter of urgency , internationally co - ordinated through ORG ( who ) and ORG in particular , to countries suffering from the diphtheria epidemic , in order to supply adequate quantities of vaccines and medicines and train a medical staff qualified to handle and administer the vaccine with the following aims :","a. to achieve a high immunisation level among the population ;","...","The ORG furthermore invites ORG :","i. to define a concerted pan - NORP policy on population immunisation , in association with all partners concerned , for example who , PERSON and ORG , aimed at the formulation and observance of common quality standards for vaccines , and to ensure an adequate supply of vaccines at a reasonable cost ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77268","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF BOLAT v. RUSSIA","importance":1,"conclusion":"Violation of P4-2;Violation of P7-1;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE , GPE .","DATE the applicant , an ethnic PERSON , lived in the Kabardino - Balkarian Republic of GPE on the basis of a long - term residence permit ( vid na zhitelstvo ) .","NORP In DATE the applicant 's residence permit was lost or stolen . On DATE he asked ORG of ORG of the Kabardino - Balkarian Republic ( passportno - vizovaya sluzhba ORG ) to replace the permit and to extend it until DATE .","After DATE delay the applicant was issued with a new residence permit valid until DATE . The shortened term of validity was explained by reference to a recommendation of ORG of GPE , which considered a longer extension \u201c inappropriate \u201d because the circumstances surrounding the loss of the first permit had not been clear enough .","The applicant complained to a court . On DATE the ORG allowed the applicant 's complaint and ordered ORG to extend his residence permit until DATE .","On DATE the applicant was fined for having breached the residence regulations . He did not contest the fine before a court .","After DATE the applicant 's registered place of residence was a flat on ORG avenue in GPE . His residence registration at that address was valid until DATE . Department of the Interior No . CARDINAL of Nalchik ( ORG otdel vnutrennikh del PERSON ) placed a stamp to that effect in the applicant 's residence permit .","On DATE the applicant was at a friend 's flat in NORP street in GPE where he had stayed TIME . At TIME a man and a woman entered the flat . The woman introduced herself as a police inspector of ORG . CARDINAL of Nalchik ; the man did not identify himself . The man and woman claimed that they were conducting a \u201c check - up of identity documents \u201d . The applicant 's friend , Mr Kh . , refused them entry to the flat , but they entered nevertheless . They proceeded to the room where the applicant was and asked him to produce identity documents . On seeing a different address in his residence permit , the woman asked the applicant why he did not live at home . The woman invited the applicant to come with them to the police station , which the applicant did . The applicant stayed at the station while a report was being drawn up .","On DATE drew up a report of an administrative offence and issued a decision to fine the applicant RUR CARDINAL ( approximately EUR CARDINAL ) for \u201c residing in GPE street without registering his place of stay \u201d which was an offence under LAW . Inspector A. asked the applicant to pay the fine on the spot . The applicant refused and complained to a court .","On DATE the ORG heard the applicant 's complaint . The court reiterated that LAW guaranteed to anyone who lawfully resided in its territory the freedom to move freely and choose his or her place of residence and stay and that that provision also applied to foreign nationals . The court took statements from the applicant , his friend PERSON . and another person who had been in the flat in LOC street on DATE ; they all maintained that the applicant had paid a visit to his friend and had not been living in Mr Kh . 's flat . Furthermore , PERSON . , the owner of the flat on ORG avenue , confirmed that she had made her flat available to the applicant for residential purposes and that he had been duly registered at her address . ORG came to the conclusion that no administrative offence had been committed and annulled the decision of DATE . The police lodged an appeal .","On DATE ORG of the Kabardino - Balkarian Republic quashed the judgment of DATE on procedural grounds and remitted the case for examination by a different formation .","On DATE the ORG dismissed the applicant 's complaint , finding as follows :","\u201c The administrative proceedings against [ the applicant ] were initiated , and a fine in the amount of MONEY was imposed on him , not only on the basis of the obvious fact , established by PERSON , that [ the applicant ] had been outside his place of residence but also on the basis of the report drawn up by ORG and PERSON . , district police officers of ORG . CARDINAL of GPE , on [ the applicant 's ] residence in the LOC street flat from DATE to DATE ... [ These police officers ] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner , named PERSON , was secretly living in PERSON . 's flat ...","At the same time the complainant and the witnesses PERSON . and PERSON . failed to satisfy the court that [ the applicant ] had only stayed TIME at Kh . 's on TIME DATE because of heavy frost outside and the need to avoid returning to a remote district of the town . In particular , PERSON . did not inform the court on what date she had visited [ the applicant ] on ORG avenue and how many days before the administrative offence report was drawn up he might have been staying at PERSON . 's ... Besides , the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case . Additionally , the court has examined a report by [ the police officer PERSON . ] which stated that during checks he could not verify the applicant 's residence either at the old or at the new address . \u201d","NORP The applicant appealed against the judgment . In the grounds of appeal the applicant 's lawyer alleged , in particular , that the fine had been imposed in the applicant 's absence by a police officer who had not been competent to do so , that the report of an administrative offence had not been corroborated by any evidence and that the sanction had not been imposed in accordance with law . The lawyer also submitted that the first - instance court had erred in its assessment of statements by the police officers NORP and PERSON . who had denied that they had known the applicant , and that the court had admitted in evidence a report by the officer PERSON . who had not been examined before or at the hearing .","On DATE ORG of the Kabardino - Balkarian Republic upheld the judgment of DATE . It rejected the applicant 's arguments that he had been unlawfully fined , on the ground that he had allegedly failed to raise these issues before ORG . ORG did not address the applicant 's inability to question the officer PERSON . Instead , it found that \u201c on DATE Mr CARDINAL . , district inspector of the first department of the interior of GPE , reported to his superior that the flat on GPE avenue was empty \u201d . The remainder of ORG reasoning was similar to that of ORG .","On DATE the applicant and his lawyer asked the ORG of ORG to lodge an application for supervisory review . On DATE the request was refused .","On DATE the applicant applied by mail for an extension of his residence permit to CARDINAL DATE . On DATE the Passports and ORG informed him that he had to apply for an extension in person . The applicant responded in writing that there was no such requirement in the domestic law .","On DATE the town prosecutor of GPE sent a request to remedy a violation of NORP laws ( predstavlenie ob ustranenii narushenii zakonov ORG ) to the head of ORG . The prosecutor requested that the applicant 's residence permit be annulled and that he be expelled because he had been found guilty of CARDINAL administrative offences in DATE .","On DATE Inspector PERSON . of ORG annulled the applicant 's residence permit on the ground of repeated violations of residence regulations in GPE . The order was approved by the Minister of ORG . The applicant was ordered to leave GPE within DATE .","On DATE the ORG stayed the execution of the order of CARDINAL DATE pending ORG decision on a request by the applicant for supervisory review .","On DATE at TIME several officers of ORG and ORG entered the applicant 's flat on the ORG prospect . Some of them wore face masks . They did not identify themselves and they did not present any search or deportation warrant . The applicant was handcuffed and taken by car to FAC where he was placed on a flight to GPE , GPE .","On DATE ORG , giving a ruling in the supervisory - review procedure , quashed the decision on an administrative offence of DATE and the judgment of the NORP Town Court of DATE , finding that there had been no admissible evidence showing that the applicant had lived outside the place of his residence registration . It noted that the reports by police officers NORP and PERSON . had been based on hearsay and that officer PERSON . 's report had not confirmed the applicant 's residence in GPE street either . Furthermore , it pointed out that ORG requirement of proof that the applicant had only been a guest in PERSON street ran contrary to the presumption of innocence enunciated in LAW . Finally , it noted that the administrative charge against the applicant had been examined by an officer of the police station having no territorial jurisdiction over LOC street and that this fact alone had rendered the sanction unlawful . ORG discontinued the administrative proceedings against the applicant .","On DATE the ORG heard the applicant 's complaint against the order of CARDINAL DATE annulling his residence permit . The court noted that a residence permit could only be annulled in case of repeated violations of residence regulations , but that this provision was no longer applicable as the administrative proceedings against the applicant had been terminated by the decision of DATE . The court declared the order of CARDINAL DATE void and ordered that ORG extend the applicant 's residence permit for DATE , starting from DATE . The judgment was not appealed against and became enforceable on DATE .","In a separate set of proceedings , the applicant 's representative attempted to bring criminal charges against the officials who had deported the applicant by force . On DATE he complained to the NORP town prosecutor 's office about the allegedly unlawful search at the applicant 's home and his deportation to GPE . On DATE his complaint was rejected because no evidence of a criminal offence had been adduced . On DATE the head of the investigations department of the Kabardino - Balkaria prosecutor 's office annulled the decision of CARDINAL DATE and remitted the complaint for additional investigation . On DATE the GPE town prosecutor 's office again refused to prefer criminal charges on the ground that no evidence of a criminal offence had been adduced . This decision was subsequently quashed , but on DATE and DATE further orders discontinuing criminal proceedings were issued .","On DATE the Passports and ORG informed the applicant that it would extend his residence permit in implementation of ORG judgment of DATE . ORG invited the applicant to appear in person in order to collect the permit .","On DATE the applicant 's representative , Mr GPE , received the documents for extension of the applicant 's residence permit and forwarded them to the applicant in GPE .","At TIME on DATE the applicant arrived in GPE on board a flight from GPE . On arrival he was detained by officers of ORG and ORG and locked in an isolated room in the GPE airport building . The applicant was not allowed to consult his lawyer , Mr GPE .","On DATE and DATE Mr GPE sent complaints about the applicant 's unlawful detention to prosecutor 's offices of various levels , to ORG , to ORG and to ORG at ORG .","At TIME on DATE Mr GPE asked Major NORP , the head of ORG , to see the applicant . His request was refused by reference to an order of ORG . Major NORP then called Captain G. from ORG of ORG who confirmed that the applicant 's contacts with lawyers had indeed been banned .","At TIME on DATE the applicant was put on a scheduled flight to GPE . It can be seen from the \u201c deportation record \u201d of the same date , drawn up on the letterhead of the GPE airport border control point of ORG , that the applicant was deported for having been in breach of section CARDINAL \u00a7 CARDINAL of the PERSON on the Procedure for Entering and Leaving GPE .","According to the Government , the ban on the applicant 's re - entry into GPE was imposed by ORG some time in DATE on the basis of Section CARDINAL of the PERSON on the Procedure for Entering and Leaving GPE . The Government claimed that they could not produce a copy of that decision because it contained \u201c State secrets \u201d . They submitted , however , that ORG had found no reason to challenge that decision before a court as it had been issued in accordance with the requirements of the above law .","In response to the applicant 's lawyer 's complaints , on CARDINAL DATE a senior investigator with the military prosecutor 's office of ORG refused to initiate a criminal investigation into the applicant 's deprivation of liberty at FAC . He found that the ban had been imposed by Directorate \u201c I \u201d of ORG and that the applicant had awaited the next flight to GPE in the international zone of FAC under the surveillance of FAC officers . The room had been equipped with a toilet , ventilation , lighting , a TV set , a bench and a chair . As ORG officials had acted in accordance with the applicable regulations , the applicant 's stay in the transit area could not be interpreted as a \u201c deprivation of liberty \u201d .","The Government indicated that ORG was examining the issue of annulment of the applicant 's residence permit in accordance with section CARDINAL ( CARDINAL ) of LAW .","Everyone lawfully within the territory of the GPE shall have the right to move freely and choose his or her place of stay or residence ( Article CARDINAL of LAW ) . Foreign nationals in GPE shall have the same rights and obligations as NORP nationals subject to exceptions set out in a federal law or an international treaty to which GPE is a party ( LAW ) .","A foreign national must register his or her residence within DATE of his or her arrival in GPE ( section QUANTITY of ORG in GPE , no . CARDINAL-FZ of DATE \u2013 \u201c the Foreign Nationals Law \u201d ) . Foreign nationals must obtain residence registration at the address where they stay in GPE . Should their address change , such change is to be re - registered with the police within DATE ( section QUANTITY ) .","A foreign national who violates the residence regulations of GPE , including by non - compliance with the established procedure for residence registration or choice of a place of residence , shall be liable to an administrative fine of ORG CARDINAL and possible expulsion from GPE ( LAW ) . A report of the offence described in LAW may be drawn up by officials of the ORG migration authorities ( Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) ) . This report must be forwarded within DATE to a judge or an officer competent to adjudicate administrative matters ( Article CARDINAL.CARDINAL ) . The determination of an administrative charge that may result in expulsion from GPE shall be made by a judge of a court of general jurisdiction ( Article CARDINAL \u00a7 CARDINAL ) . A right of appeal against a decision on an administrative offence lies to a court or to a higher court ( Article CARDINAL \u00a7 CARDINAL ) .","A residence permit may be annulled if a foreign national has been charged CARDINAL or more times within DATE with violations of residence regulations ( section CARDINAL ( CARDINAL ) of the Foreign Nationals Law ) .","A foreign national 's residence permit shall be issued for DATE . Upon expiry it may be extended for a further DATE at the holder 's request . The number of extensions is not limited ( section CARDINAL ( CARDINAL ) of LAW ) .","A residence permit may be annulled , particularly if the foreign national advocates a violent change of the constitutional foundations of GPE or otherwise creates a threat to security of GPE or its citizens ( section CARDINAL ( CARDINAL ) of LAW ) .","Administrative expulsion of a foreign national from GPE must be ordered by a judge ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of LAW ) .","A foreign national may be refused entry into GPE if such refusal is necessary for the purpose of ensuring the defensive capacity or security of the ORG , or for the protection of public order or public health ( section CARDINAL \u00a7 CARDINAL(CARDINAL ) of the PERSON on the Procedure for Entering and Leaving GPE , no . CARDINAL-FZ of DATE ) .","DATE . On DATE the PERSON on the Procedure for Entering and Leaving GPE was amended . In particular , a new section CARDINAL was added . It provided that a competent authority , such as ORG or ORG , could issue a decision that a foreign national 's presence on NORP territory was undesirable , even if his or her presence was lawful , if it created a real threat to the defensive capacity or security of the ORG , to public order or health , etc . If such a decision was made , the foreign national had to leave GPE or else be deported . That decision also formed the legal basis for subsequent refusal of re - entry into GPE .","Resolution CARDINAL ( DATE ) on honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , noted in the relevant part as follows :","\u201c CARDINAL . However , the ORG is concerned about a number of obligations and major commitments with which progress remains insufficient , and the honouring of which requires further action by the NORP authorities :","...","xii . whilst noting that the NORP federal authorities have achieved notable progress in abolishing the remains of the old propiska ( internal registration ) system , the ORG regrets that restrictive registration requirements continue to be enforced , often in a discriminatory manner , against ethnic minorities . Therefore , the ORG reiterates its call made in Recommendation DATE ) , in which it urged member states concerned ' to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders ' ... \u201d","The Explanatory Report defines the scope of application of LAW No . CARDINAL in the following manner :","\u201c CARDINAL . The word ' resident ' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non - residential purpose ...","The word lawfully refers to the domestic law of the ORG concerned . It is therefore for domestic law to determine the conditions which must be fulfilled for a person 's presence in the territory to be considered ' lawful ' .","[ A]n alien whose admission and stay were subject to certain conditions , for example a fixed period , and who no longer complies with these conditions can not be regarded as being still ' lawfully ' present . \u201d","The ORG further cites definitions of the notion of \u201c lawful residence \u201d contained in other international instruments :","\u201c a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein ...","b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned , unless a stay of execution is granted . \u201d","\u201c a. Regulations governing the admission , residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it ;","b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another ORG if they have conformed to the said regulations . \u201d","The ORG clarifies the notion of \u201c expulsion \u201d as follows :","\u201c CARDINAL . The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition . Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation . Nevertheless , for the reasons explained in paragraph CARDINAL above , it does not apply to the refoulement of aliens who have entered the territory unlawfully , unless their position has been subsequently regularised .","Paragraph CARDINAL of this article provides first that the person concerned may be expelled only ' in pursuance of a decision reached in accordance with law ' . No exceptions may be made to this rule . However , again , ' law ' refers to the domestic law of the ORG concerned . The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68754","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2005,"docname":"CASE OF CALLEJA v. MALTA","importance":3,"conclusion":"Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and is currently detained in FAC ( GPE ) .","NORP In DATE the applicant was arrested and charged with trafficking in dangerous drugs . On DATE , while he was in pre - trial detention , a fresh charge of complicity in attempted wilful homicide was brought against him . The applicant was accused of having tried , by means of an instruction issued to third parties , to kill PERSON PERSON , the personal assistant to the Prime Minister , on account of Mr PERSON 's role in the separate proceedings on the charge of trafficking in dangerous drugs . The events in issue allegedly occurred before and on DATE . Expert forensic reports were submitted in DATE and DATE .","The applicant was subsequently placed in detention on remand in connection with this new criminal charge also .","From the date of the applicant 's arraignment ( DATE ) until CARDINAL DATE , CARDINAL hearings took place before ORG , acting as a court of criminal inquiry . A number of police officers , experts and witnesses , including Mr PERSON , an accomplice who had made a confession and had been granted a pardon , were cross NORP examined by the parties . A number of objections were raised by the prosecution and the defence about the questions put by the other party . The court issued a ban on the publication of reports and articles about the proceedings before it .","On DATE ORG appointed a graphologist and concluded that there were sufficient grounds for the filing of a bill of indictment against the applicant .","NORP However , on DATE the Attorney General asked ORG to re - open the proceedings in order to hear CARDINAL witnesses , namely CARDINAL other accomplices of the applicant , a doctor who had been on duty on DATE the victim was admitted to hospital , and the graphologist appointed on DATE . On DATE the court heard the first CARDINAL witnesses . The CARDINAL accomplices refused to give evidence in order not to incriminate themselves . The court revoked the appointment of the expert and asked the registrar to provide it with a new list of experts .","On DATE the Attorney General again asked the court to reopen the proceedings and to explain the reasons for revoking the appointment of the expert ; to identify handwriting experts , including foreign ones ; and to hear all the evidence the police could adduce .","On DATE ORG appointed a new graphologist , Mr PERSON .","On DATE the Attorney General requested once again that the inquiry be re - opened . He asked that Mr PERSON and PERSON be heard , the latter being requested to give explanations about the record of his interrogation by the police . Moreover , he asked that some documents previously exhibited be listed in detail , while other documents not already exhibited should be produced by the registrar . A hearing , during which PERSON PERSON was examined , took place on DATE .","On DATE the Attorney General requested that the inquiry be re - opened for the following matters : to correct a mistake in the records ; to hear PERSON ; to produce various newspapers ; to complete the appointment of another expert and have him produce some photographs ; and to hear CARDINAL new witnesses .","On DATE , after the examination of CARDINAL witnesses , the hearing was adjourned as PERSON was not in GPE . He gave evidence on DATE .","On DATE the registrar informed the court that the evidence produced on DATE had not been properly recorded and that the witnesses heard during that sitting should be summoned again .","On DATE the Attorney General requested the re - opening of the inquiry in order to hear PERSON and other witnesses , as well as the witnesses examined on DATE . With the exception of PERSON PERSON , who was abroad , the witnesses concerned were examined by the prosecution on DATE . Counsel for the defence , who was attending another trial , was not present and reserved his right to crossexamine the witnesses . At the Attorney General 's request , on DATE PERSON was examined . At the end of the sitting , the court returned the documents relating to the proceedings to the Attorney General .","The bill of indictment against the applicant for the charge of complicity in attempted wilful homicide was filed on DATE .","On DATE the applicant was provisionally released on bail in relation to the charge of trafficking in dangerous drugs . However , the applicant could not leave the prison as he was still required to remain in pretrial detention on the charge of complicity in attempted murder .","In CARDINAL separate notes of DATE the applicant filed several preliminary pleas , challenging the validity of the bill of indictment and the admissibility of a number of documents and prosecution witnesses . The applicant also requested that CARDINAL witnesses be heard on his behalf .","On DATE the Attorney General contested the admissibility of certain documents and witnesses referred to by the defence .","A number of hearings on the preliminary pleas took place before ORG . In particular , the applicant 's case was discussed on CARDINAL and DATE . On DATE , the case was adjourned until DATE because counsel for the applicant failed to appear . The case was further discussed on DATE and DATE , then postponed until DATE , on which date the applicant informed the court that his counsel had fallen ill . The case was adjourned first until DATE , then until DATE . On DATE and on CARDINAL DATE ORG heard oral submissions from the parties .","The following hearing , initially scheduled for DATE , was postponed until DATE on the ground that the court needed more time to deliberate . On DATE ORG delivered its judgment on all the preliminary pleas . Both the defence and the prosecution declared that they intended to appeal . The case was adjourned pending the decision on the parties ' appeals .","On DATE the applicant appealed against ORG judgment of DATE . The prosecution did not appeal .","On DATE ORG set the appeal down for hearing on DATE . The hearing was then adjourned until DATE on the ground that one of the sitting judges was ill . On DATE the parties made their oral submissions . The next hearing , initially scheduled for DATE , was postponed first until DATE , then until DATE , and finally until DATE at the request of the defence , on the ground that the accused had appeared in court unassisted . ORG heard further oral submissions by the parties on DATE and CARDINAL , DATE and DATE .","On DATE ORG partly quashed ORG judgment of DATE .","The case concerning the charge of complicity in attempted wilful homicide was resumed before ORG . A hearing was scheduled for CARDINAL DATE in order to agree on a date for the trial . However , the proceedings were adjourned at the defence 's request .","On DATE CARDINAL of the applicant 's counsel withdrew from the defence team . ORG observed that all that needed to be done was to appoint a date for the trial by jury . However , the applicant 's remaining lawyer requested an adjournment in order to check his other professional commitments and to consult with his client . On CARDINAL and CARDINAL July CARDINAL the proceedings were postponed on the ground that the applicant 's counsel was ill .","On DATE the defence challenged the President of ORG \u2013 Mr Justice PERSON \u2013 on the ground that he had participated in the trial of PERSON , one of the applicant 's coaccused . The parties made oral submissions on this plea , and the court ordered the applicant to submit , before DATE , a note indicating the legal provisions on which he was relying and the decisions taken by the judge in question during the trial of Mr GPE . The court proposed to adjourn the case until DATE , on which date a decision on the challenge should have been taken . However , the applicant 's counsel objected that he would be away from GPE during DATE . The proceedings were therefore postponed until DATE , on which date ORG rejected the challenge .","The applicant declared his intention to appeal . Observing that there was no right to appeal against its ruling , ORG provisionally fixed the date of the trial by jury for DATE . The applicant 's counsel observed that in view of the declaration made by the defence , the date of the trial should not have been fixed and the proceedings should rather have been adjourned sine die .","On DATE the applicant appealed against the decision of CARDINAL October CARDINAL .","The hearing , initially scheduled for DATE , was held on DATE , on which date ORG adjourned the proceedings until DATE in view of the absence of the applicant 's counsel . The latter subsequently informed the court that he had not been notified of the new date of the hearing . ORG also observed that the Attorney General had not submitted a reply in writing to the applicant 's appeal . The Government , with whom the applicant disagreed , emphasised that submissions were normally made orally and that the Attorney General was in no way obliged to file a written reply .","On DATE the accused , who had fallen ill , did not appear . In the presence of his legal counsel , the court heard evidence from a doctor as to the applicant 's state of health . A medical certificate was exhibited .","By decision of DATE ORG dismissed the applicant 's appeal . It observed that the accused 's allegations were based only on suppositions and unproven gratuitous assertions which were devoid of legal value .","On DATE the applicant was convicted and sentenced to DATE imprisonment and to a fine of MONEY ( MONEY ) in respect of the charge of trafficking in dangerous drugs . He then started to serve his sentence for that offence . The earliest date of the applicant 's release was fixed at DATE . This calculation was made by deducting from the final sentence the period that the accused had spent in pre - trail detention .","After having heard in camera the views of the defence and the prosecution , on DATE ORG decided to adjourn the trial by jury on the charge of complicity in attempted murder until DATE . It considered , in particular , that it was not wise to commence the new trial at a date too close to the termination of the other proceedings against the same accused . The witnesses to be heard on behalf of the prosecution were summoned to appear on DATE .","However , on DATE the applicant instituted proceedings before ORG exercising its constitutional jurisdiction , relying on a violation of LAW CARDINAL of LAW . He submitted , in particular , that he could not be judged by the same magistrate \u2013 Mr Justice Degaetano \u2013 who had participated in his previous trial for trafficking in dangerous drugs and in the trial of CARDINAL persons accused of complicity in the offence with which he was charged . He also complained about the extensive media coverage of his trial and about the negative opinions expressed about him and his innocence by the Prime Minister , by the Attorney General and by certain police officers .","On DATE the applicant requested ORG to stay the proceedings pending the decision on his constitutional application . The Attorney General replied that that request should be rejected as constituting an abuse of process .","In an order of CARDINAL DATE ORG noted that DATE of the jury trial had been known to the applicant by DATE . However , it was DATE before the trial was scheduled to commence that the accused had filed his constitutional application . ORG noted , moreover , that the fact that the constitutional application was pending did not stricto jure oblige it to adjourn the trial . However , if the trial were to be continued , ORG and , in the event of an appeal , ORG might have felt in some way pressed to give a ruling on the applicant 's complaint in an unreasonably short time ( that is , before the end of the trial ) . Such a situation should , if possible , be avoided and it would have been unnecessarily costly to have the trial by jury held more than once . ORG therefore decided to adjourn the hearing until DATE . Further sittings were held before ORG on DATE and DATE and on DATE and CARDINAL DATE ; they were all adjourned pending the outcome of the applicant 's constitutional application . The next hearing was fixed for DATE .","The date of the first hearing before FAC was fixed for DATE , on which date the applicant produced several documents . The proceedings were adjourned in order to examine those documents . In a note of CARDINAL DATE the applicant stated that CARDINAL of his counsels had been required to go abroad on a university assignment and would not be present at the hearing on DATE . ORG reserved its decision on this matter .","On DATE the applicant appeared , assisted by his other counsel . He declared that he needed to produce in evidence copies of articles which had appeared in local newspapers . The case was adjourned until DATE , on which date the court requested further information from the applicant . The hearing of DATE was postponed at the Attorney General 's request . On DATE the court adjourned the case in order that the applicant could conduct inquiries to verify the facts concerning a video recording exhibited by him .","In a note of DATE the applicant pointed out that the recording in issue did not concern a political debate , as he had initially stated , but a press conference . On DATE he exhibited an audio recording of the political debate in question and declared that he had no further evidence to produce . The Attorney General requested the authentication of the document exhibited .","On DATE a witness on behalf of the applicant appeared in order to authenticate the relevant documents . The case was adjourned first until DATE , then until DATE for final oral submissions by the parties . The hearings of DATE , DATE , DATE and DATE and DATE were adjourned as the court required more time for deliberation .","On DATE the First Hall of ORG dismissed the applicant 's application .","On DATE the applicant appealed against that judgment to ORG .","On DATE , the date of the first hearing , Mr Justice Degaetano , who presided over ORG , withdrew from the case . A substitute judge was appointed and the case was adjourned until DATE for oral submissions by the parties .","DATE . On DATE ORG dismissed the applicant 's appeal .","On DATE ORG set DATE as the date for the trial on the merits of the charge of complicity in attempted murder . The applicant declared that he intended to bring before ORG the issues raised in his constitutional complaint .","On DATE , the jury delivered a verdict of not guilty with respect to the charge of complicity in attempted murder .","In the course of the proceedings against him , the applicant applied for provisional release on bail on several occasions ( DATE , CARDINAL DATE , DATE and DATE , CARDINAL DATE , DATE and DATE ) . His requests were rejected by ORG and by ORG on DATE , CARDINAL DATE , DATE and CARDINAL DATE , DATE and DATE , after having held hearings at which the parties were able to make their oral submissions .","ORG was not persuaded that there was no danger that , once released , the applicant would not try to interfere with evidence or in any other way try to obstruct the course of justice with regard to his case . It referred , in particular , to the extraordinary gravity of the charges , which showed the manifest social danger posed by the applicant , who might commit further offences against the person , including offences of bodily harm . In this connection , it was observed that the identity of the witnesses had become known to the applicant . There was , moreover , a danger that the latter might try to abscond , making use of the contacts he had abroad , in order to avoid the heavy punishment which was likely to be inflicted on him in the event of his conviction .","ORG considered that the applicant 's situation had not significantly changed and that no new element justifying a departure from the previous findings had been submitted . In particular , it considered that the time that had elapsed since the beginning of the applicant 's detention was not substantial enough to conclude that the length of the deprivation of liberty in issue was unreasonable .","In the meantime , on DATE , the applicant , alleging that his lengthy detention and the continued refusal of bail had infringed his rights under Articles CARDINAL and CARDINAL of the LAW , introduced a constitutional complaint before ORG . He observed , in particular , that his deprivation of liberty was based , inter alia , on the risk of his tampering with evidence , a risk which , in the Attorney General 's submission , had become even more serious because his accomplices were free and the identity and nature of the prosecution evidence and witnesses had become known to the accused . In the applicant 's opinion , however , those fears were unfounded and the danger referred to by the authorities could in any case have been avoided by adopting the necessary precautionary measures , such as adequate surveillance by the police , with the possibility of house arrest . Moreover , the evidence of the prosecution had become known to the applicant by right in order to enable him to prepare his defence ; that fact could therefore not be used against him to justify a violation of his other fundamental rights .","The Attorney General and the Commissioner of Police filed a memorandum in which they applied for the applicant 's complaints to be dismissed . They pointed out that the offence attributed to the applicant was punishable by DATE imprisonment , and that this element created an incentive for the accused to try to tamper with evidence and also to abscond , possibly making use of the foreign contacts which he manifestly had . Moreover , the nature of the offence showed that the applicant was a danger to society and that there was a risk that he might commit other offences . Finally , the danger of his interfering with evidence was real , as was shown by the fact that after he had given evidence , a witness in his case had been attacked by CARDINAL unknown persons .","Four hearings took place before FAC on CARDINAL and DATE and CARDINAL and CARDINAL DATE . On the last - mentioned date , ORG authorised the applicant to file submissions concerning a non NORP exhaustion plea raised by the respondents . This note was filed on CARDINAL DATE .","On DATE the First Hall of ORG dismissed the applicant 's application . With reference to the case - law of ORG , ORG noted that the prolonged detention of a person who was presumed innocent but was suspected of having committed an offence should be justified in the public interest and that an accused deprived of his liberty had the right to have the investigations and trial conducted within a reasonable time . In the applicant 's case , ORG had taken into account the period of time spent by the applicant in detention in view of all the relevant circumstances , notably the nature and gravity of the charges , the danger of his tampering with evidence and the risk of his absconding . Moreover , the applicant 's case was particularly complex , regard being had to the number of witnesses and experts involved in the investigations and to the pleas submitted by the parties , and it could not be said that the prosecution had failed to show diligence in the conduct of the investigations . The time that had elapsed from the beginning of the investigations could not , therefore , be considered unreasonable . Finally , the fact that the applicant had been denied bail was not prejudicial to the presumption of innocence , as the decisions in this regard did not reflect an opinion as to his guilt .","On DATE the applicant appealed against the judgment of CARDINAL June DATE before ORG .","The first hearing took place on DATE . On DATE the applicant challenged CARDINAL of the QUANTITY sitting judges . A judgment on this issue was given on DATE . The CARDINAL judges in question withdrew from hearing the case , which was adjourned until DATE , on which date the parties made oral submissions . On DATE the applicant requested leave to produce a decision given by ORG on his application for bail . This request was subsequently served on the respondents , who on DATE declared that they did not oppose bail . The hearings of DATE and CARDINAL DATE and of DATE and DATE were adjourned because ORG needed more time for deliberation . On DATE the court observed that the members of the family of CARDINAL of the sitting judges had fallen seriously ill and that this fact prevented it from taking a decision immediately ; however , the case had been given the priority that it deserved .","On DATE , at ORG request , the parties made submissions on the point as to whether a decision on the issue under LAW was required .","On DATE ORG upheld the decision of FAC in so far as it concerned the length of the criminal proceedings against the applicant ( LAW ) . However , ORG pointed out that the applicant had also complained under LAW , alleging that the grounds for his detention had weakened with the passing of time . Even if the accused had not explicitly quoted this latter Article in his final submissions , thus misleading the first - instance court , his complaint constituted a separate grievance on which ORG should have made a specific ruling . Therefore , ORG remitted the facts of the case to ORG , instructing the latter to examine this complaint .","Proceedings were resumed before FAC , and a hearing was scheduled for DATE . On DATE CARDINAL witnesses appeared on behalf of the respondents . They testified about incidents experienced by a witness who had testified against the applicant in the pretrial investigation proceedings and by the daughter of that witness .","On DATE the President of ORG withdrew from the case . A substitute judge was appointed on DATE , but he also had to withdraw as he was one of the judges who had denied CARDINAL of the applicant 's applications for bail . Another substitute judge was appointed on CARDINAL DATE , and a new hearing was set down for DATE . Other witnesses were heard on CARDINAL and DATE . On DATE the applicant waived the right to cross - examine those witnesses , but requested leave to file written observations . The latter were filed on DATE , DATE after the expiry of the time allowed by ORG . The respondents filed their written reply at the hearing of DATE . On DATE the case was adjourned for judgment .","On DATE the First Hall of ORG declared that the overall duration of the applicant 's pre - trial detention had infringed LAW and that the applicant was entitled provisionally to be released under conditions guaranteeing his appearance at the trial . The determination of these conditions was left to the discretion of ORG .","ORG first underlined that a period of time held to be reasonable under LAW could be considered excessive under LAW , as the criteria laid down in the latter provision , which concerned personal liberty , were more rigorous . Moreover , it was clear that the passing of time could not but aggravate the prejudicial effects that the pre - trial detention had had on the applicant 's situation .","ORG further noted that the proceedings had not been conducted in a vacuum . In fact , the inquiry had been closed , the bill of indictment had been issued and the preliminary pleas had been decided . On the other hand , it should be kept in mind that the applicant had a right to institute all the proceedings and to lodge all the complaints he deemed necessary for the defence of his interests , even if this might prolong the criminal proceedings .","DATE . As to the grounds justifying the applicant 's continuing detention , ORG observed that the risk of his tampering with evidence appeared to subsist regardless of whether or not he remained under arrest . In fact , the Attorney General himself had mentioned that certain witnesses had already started to alter the evidence which they had given during the inquiry . Moreover , all the evidence against the applicant had already been gathered and heard on various occasions by the national courts , and the danger of interference with the course of justice was likely to be reduced as the investigations progressed .","As to the risk of committing new offences , ORG noted that the prosecution had not proved that the applicant was responsible for certain incidents in which a witness and his relatives had been involved . Furthermore , as the crimes of which the applicant was accused had been allegedly committed on the basis of instructions , it could be argued that the applicant constituted a threat to society even if he remained in prison . In any case , it appeared that the prosecution was inferring the applicant 's dangerousness more from the gravity of the case than from any other evidence .","Finally , it was true that the applicant risked a heavy sentence and that he had been abroad several times in DATE . However , it had not been proved that the applicant had tangible connections outside GPE which might facilitate his escape . He had , on the contrary , strong family ties in GPE . Keeping in mind that the applicant had already spent DATE in detention , and that this period would in any case have been deducted from his final sentence , ORG concluded that the risk of his absconding could be counterbalanced by adequate guarantees ensuring the appearance of the accused at the trial .","On DATE the Attorney General of GPE and the Commissioner of Police appealed to ORG against the judgment of DATE .","The first hearing took place on DATE . On that date all CARDINAL judges composing the court withdrew from the case on account of their involvement in prior proceedings concerning the question of the applicant 's release on bail . On DATE new judges were appointed . The applicant then requested that the next hearing , scheduled for DATE , be fixed for an earlier date . A hearing was scheduled for DATE , on which date the parties made their oral submissions on the appeal .","On DATE the Constitutional Court quashed the impugned judgment . It observed that the applicant 's prolonged detention had been based on CARDINAL grounds , notably the risk of contamination of evidence , the danger of his committing a new offence , the fact that he was a threat to society , and the danger that he might abscond or hide . In ORG view , each of these reasons was serious enough potentially to create an obstacle to the applicant 's release .","ORG noted that the prosecution had produced evidence demonstrating that the applicant had put pressure on individuals for the purpose of committing homicide on the basis of instructions . The risk of tampering with evidence was therefore a concrete one , especially at a stage where the applicant was aware of the content of the evidence and of the names of the witnesses . As to the risk of committing a new offence , the prosecution relied mainly on CARDINAL incidents concerning a witness and his daughter . However , there was nothing to show that the applicant was responsible for those acts . On the other hand , evidence had been produced against the applicant in a separate set of criminal proceedings concerning a serious accusation of drug trafficking .","As to the possibility that the applicant might abscond , it was true that the longer his detention lasted , the more remote this possibility was . The fact that the applicant 's family lived in GPE equally militated against the danger of flight . However , the seriousness of the charges brought against the applicant and the fact that he was about to face a trial by jury on charges of drug trafficking militated in the opposite direction .","DATE . It remained to be considered whether the time that had elapsed since the date of the arrest could neutralise all the other relevant factors justifying the applicant 's deprivation of liberty . In this connection , it was noted that far from trying to speed up the proceedings , the applicant had caused a number of delays . For instance , when ORG had been ready to fix the date of the trial by jury , the applicant had challenged the judge , and from DATE until DATE his lawyers had demanded CARDINAL adjournments of the hearings , thus unnecessarily lengthening the proceedings . In particular , on DATE ORG had provisionally scheduled DATE of the trial by jury for DATE . Instead of objecting to this lengthy delay , counsel for the defence had asked why ORG was setting a provisional date for the trial instead of adjourning it sine die . In ORG opinion , this behaviour was difficult to reconcile with the applicant 's declared wish to have his case heard within a reasonable time .","Even if it was preoccupied about the length of time that the applicant'Constitutional Court underlined that an accused person had every right to choose the best line of defence , but he did not have the right to lengthen the proceedings , under CARDINAL pretext or another , or to employ such grounds in favour of his provisional release pending trial .","In the light of the above , ORG found that the period of time spent by the applicant in pre - trial detention had not yet violated LAW . It considered , however , that the applicant 's application for bail should be allowed if a definitive date for the hearing of the trial was not fixed in due time after ORG had ruled on the challenge to the judge presiding over ORG ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-117124","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2013,"docname":"CASE OF OLEYNIKOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed","judges":"Dmitry Dedov;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant lent ORG Democratic People \u2019s Republic of Korea ( \u201c the DPRK Trade Counsellor \u201d ) MONEY ( MONEY ) . The money was to be repaid by CARDINAL DATE . A receipt of CARDINAL DATE on the letterhead of ORG signed by PERSON reads as follows :","\u201c [ This ] receipt is given to the President of the private company Lord PERSON to the effect that ORG has borrowed CARDINAL ( CARDINAL ) GPE dollars converted into roubles .","We undertake to repay the debt not later than CARDINAL May [ and ] we pledge the ORG Camry car , registration plate no . KhBB DATE ( ORG DATE ) , engine no . CARDINAL , chassis no . CARDINAL , [ together ] with a complete set of documents for the car . In case of a failure to repay [ the debt ] within the indicated term , we shall pay PERCENT for DATE of the delay . \u201d","After the DPRK Trade Counsellor failed to repay the debt , in DATE the applicant sent several letters of claim which went unanswered . The applicant \u2019s counsel also sent a letter of claim to ORG on DATE and to ORG on DATE , which also went unanswered .","On DATE the applicant \u2019s counsel wrote to ORG asking for assistance in settling the matter .","On DATE ORG replied to the applicant that ORG was a constituent unit of ORG and , therefore , an organ of the ORG which acted on its behalf . ORG thus enjoyed immunity from suit and immunity from attachment or execution in accordance with LAW . ORG advised the applicant that , should he decide to lodge a claim with a court , he would have to obtain consent to the examination of the case from a competent NORP authority .","On DATE the applicant wrote to ORG and asked for its consent to the examination of his claim against ORG by the domestic courts . The letter was received by ORG on DATE . It appears that the applicant received no reply .","On an unspecified date the applicant lodged a claim with ORG . On DATE ORG returned the claim without examination on the grounds that it should have been lodged before a district court .","NORP On DATE the applicant lodged a claim against the ORG with ORG . He sought repayment of the debt with interest . He claimed , furthermore , that GPE was responsible for the actions of foreign diplomats within its territory .","On DATE ORG returned the claim without consideration on the grounds that under LAW a claim against a foreign ORG could only be brought upon the consent of its competent authorities . The applicant appealed .","On DATE ORG upheld the decision on appeal . The court held :","\u201c [ ORG ] is a subdivision of the trade representation of the ORG in GPE the legal status of which is governed by the FAC to LAW between the GPE and the ORG of CARDINAL DATE . According to LAW , the trade representation is an organ of ORG the ORG ) acting in its name . Therefore , taking into account the equality of GPE as a principle of international law , the trade representation as an organ of public authority of a sovereign ORG is entitled to judicial immunity as well as to immunity from measures of securing a suit and execution . The said immunities are based on ORG sovereignty , which does not allow a ORG to be subject to coercive measures of any kind . The principle of judicial immunity of a foreign state is enshrined in LAW , according to which lodging a claim in a court of GPE against a foreign ORG , the involvement thereof in court proceedings in the capacity of a defendant or of CARDINAL party , the seizure of property belonging to a foreign ORG and situated within the territory of GPE , taking other measures for securing of a suit , and levying execution upon such property by means of enforcement of judicial decisions , are allowed only upon the consent of the competent agencies of the ORG in question , unless otherwise provided by an international treaty of GPE or by a federal law .","Therefore , [ a ] person may only lodge a claim against a foreign ORG upon the prior consent of the ORG . If [ a ] claim against a foreign ORG is not supported by ... documents confirming its consent to the examination of the case in court , [ court ] proceedings will not be instituted . As [ Mr ] PERSON failed to furnish [ documents confirming ] the consent of the [ ORG ] to the examination of the dispute in court together with [ his claim ] , the judge could not accept the claim because of the bar to [ lodging such a claim before ] a court . As the said bar is [ not absolute ] , the judge returned the claim to [ Mr ] PERSON on valid grounds , having indicated how the circumstances that prevented the institution of the proceedings could be remedied .","[ Mr ] PERSON arguments that ORG does not wish to reply to his and his counsel \u2019s requests [ and ] is evading payment of the debt , on the basis of which [ he submits that ] it is for the court or the judge to request the ORG \u2019s consent to the examination of the case , may not be considered as grounds for setting aside the [ decision of ORG ] , as they contravene the provisions of the international treaty between the GPE and the ORG of CARDINAL DATE and LAW . \u201d","Article CARDINAL of the Civil Code refers to the Law on State Immunity , which has not been adopted to date . The question is thus resolved by the courts on the basis of the relevant Codes of Procedure , with reference to the provisions of various bilateral and multilateral treaties .","Article CARDINAL of the DATE ORG in force until DATE , based on absolute immunity , provided , in so far as relevant :","\u201c [ F]iling a suit against a foreign ORG , securing of a suit or levying execution upon the property of a foreign State situated in the GPE may only be allowed upon the consent of the competent agencies of the respective ORG . \u201d","Article CARDINAL \u00a7 DATE Code of Civil Procedure in force from DATE , reinstated absolute immunity of a foreign ORG . It reads as follows :","\u201c Filing a suit against a foreign ORG in a court of GPE , the involvement thereof in court proceedings in the capacity of a defendant or of a third party , the seizure of property belonging to a foreign ORG and situated within the territory of GPE , taking other property measures for securing of a suit , and levying execution upon such property by means of enforcement of judicial decisions , shall only be allowed upon the consent of the competent agencies of the ORG in question , unless otherwise provided by an international treaty of GPE or by a federal law . \u201d","Article CARDINAL(CARDINAL ) of the DATE Code of Commercial Procedure in force until DATE , provided for absolute immunity :","\u201c Filing a suit in a commercial court against a foreign ORG , the involvement thereof in court proceedings in the capacity of a third party , the seizure of property belonging to a foreign ORG and situated within the territory of GPE , and taking against it other measures for securing a suit , and levying execution upon such property by means of enforcement of a decision of a commercial court , shall only be permitted with the consent of the competent agencies of the respective ORG , unless otherwise provided by federal laws or by international treaties of GPE . \u201d","Article CARDINAL of the CARDINAL Code of Commercial Procedure in force from DATE , endorsed restrictive immunity . It reads as follows :","\u201c CARDINAL . A foreign ORG , acting in the capacity of a bearer of authority [ emphasis added ] , shall enjoy judicial immunity with respect to a suit filed against it with a commercial court in GPE , its involvement in court proceedings in the capacity of a third party , the seizure of property belonging to a foreign ORG and situated on the territory of GPE , and the taking against it by the court of other measures of securing a suit and property interests . Levying execution upon such property by means of enforcement of a judicial act of a commercial court shall only be permitted with the consent of competent agencies of the respective ORG , unless otherwise provided by international treaty of GPE or by a federal law .","NORP The judicial immunity of international organisations shall be determined by international treaty of GPE and by federal law .","A waiver of judicial immunity shall be effected according to the procedure provided for by the law of the foreign ORG or by the rules of the international organisation . In this instance , the commercial court shall consider the case according to the procedure established by the present Code \u201d .","Article CARDINAL of the LAW provides , insofar as relevant :","\u201c CARDINAL . The generally recognised principles and norms of international law and the international treaties of GPE shall be an integral part of its legal system . If an international treaty of GPE establishes other rules than those provided for by the law , the rules of the international treaty shall apply . \u201d","Article CARDINAL of the DATE ORG was examined by ORG in its ruling of DATE . The claimant , PERSON , a former employee of the information service of ORG in GPE , was dismissed under LAW section MONEY ) of the DATE LAW of GPE ( non - conformity of the employee with the post held due to insufficient qualification or state of health , preventing further fulfilment of the work ) . Following her dismissal she instituted court proceedings seeking reinstatement and damages . In a ruling of DATE the court of first instance rejected the claim , having applied LAW , as the claimant had failed to present any evidence of the United States\u2019 consent to submit to the jurisdiction of the court . ORG upheld the ruling on appeal . In her complaint to ORG , PERSON argued that LAW had violated her constitutional right to judicial defence .","ORG noted that the right to engage in individual labour disputes was provided in LAW and the procedure for the examination of claims for reinstatement was governed by LAW , while application of the provisions of DATE was of subsidiary nature , intended to fill in gaps in the procedural rules of labour legislation . It further observed that the purpose of LAW ) was to ensure ORG immunity in accordance with generally recognised principles and norms of international law and international treaties of GPE .","The Constitutional Court found that \u201c when considering the case of [ Ms ] PERSON , the courts of general jurisdiction did not pay attention to the fact that the employer \u2013 ORG as an agency of the accrediting ORG \u2013 applied the legislation of GPE ... , and without requesting necessary documents refrained from investigating the issue of whether such an application could be regarded as the United States\u2019 waiver of jurisdictional immunity in this particular case \u201d . On these grounds it reached the conclusion that : \u201c the formalistic application of Article CARDINAL(CARDINAL ) of LAW by the courts of general jurisdiction , which refused to accept the claim of [ Ms ] PERSON on the basis of this article , led to an inadmissible limitation of the claimant \u2019s rights with regard to an individual labour dispute ... and thus to a violation of the right to judicial defence provided for in LAW \u201d .","NORP However , ORG did not examine Ms PERSON \u2019s complaint on the merits . It found that her rights had not been violated by LAW , but rather by its application by the domestic courts , which fell outside its competence . At the same time , ORG stated that the LAW was to be applied henceforth \u201c taking into account the legal position set forth by ORG in the present ruling \u201d .","The application of the ORG immunity rule in commercial proceedings was addressed by the ORG of ORG in an Information Letter of DATE . By way of information letters ORG provides lower courts with instructions on the interpretation and application of domestic law .","The Information Letter firstly referred to a case where a NORP construction company had filed a claim against a foreign embassy for recovery of a debt arising under a contract concerning the construction of a hotel attached to the embassy in GPE . The commercial court had granted the claim . However , ORG had set aside the decision and remitted the case for fresh consideration . The commercial court was instructed to review the issue of ORG immunity , taking into account that construction of the hotel was for the public , and non - commercial , activity of the foreign ORG in GPE , and was therefore instructed to consider termination of the proceedings under LAW .","On the basis of its findings in the above case , the Presidium of ORG made the following general recommendation : \u201c A commercial court shall terminate proceedings in a case concerning an investment dispute , the defendant in which is a foreign ORG acting in the capacity of a sovereign \u201d .","The second case referred to in ORG also concerned a foreign embassy and a NORP construction company involved in a dispute arising out of a construction contract . However , in this case the proceedings had been initiated by the embassy and the construction company had filed a counter - claim . ORG had held that bringing a claim constituted an implied waiver of immunity and therefore that the embassy of a foreign ORG was not immune with respect to a counter - claim .","The recommendation of the Presidium of ORG based on the above case reads as follows : \u201c A commercial court shall accept a claim in a commercial dispute , the defendant in which is a person entitled to international immunity \u201d .","State immunity was touched upon in the Opinion on the Draft Federal Law on ORG by GPE , sent by the President of GPE , PERSON , to the Chairman of ORG , G N PERSON , and published in ORG on CARDINAL DATE ( \u201c the Opinion \u201d ) .","With regard to certain provisions relating to ORG immunity which were included in LAW under discussion , the ORG states that \u201c foreign ORG property enjoys functional immunity \u201d . The statement is further detailed as follows :","\u201c If a ORG uses its ownership for the purposes of ensuring its sovereignty or fulfilling ORG political functions , that is , as a subject of international law , for example , for the maintenance of diplomatic and consular representations , this property always enjoys immunity against the jurisdiction of the ORG of its location . However , if the ORG ( through specially empowered agencies ) takes part in property turnover or in commercial activity , then it is regarded as a foreign private person and its ORG ownership does not enjoy immunity . The turnover of such property is regulated by norms of international private law and by legislation of the country where the property is located , the foreign ORG with respect to the country of location of the property acting on the basis of equal rights with other participants of these relations \u2013 with foreign juridical and natural persons . This approach has been consolidated in LAW , CARDINAL DATE , which , in accordance with generally recognised international practice , GPE may regard as a codified digest of customary norms of international law . \u201d","State immunity was also referred to in letter no . Pr-CARDINAL of DATE sent by the President of GPE , PERSON , to the Chairman of ORG , E S Stroev ( \u201c the Letter \u201d ) . The Letter substantiates the rejection by the President of LAW ORG . Paragraph CARDINAL of the Letter states :","\u201c LAW of GPE ( Article CARDINAL ) provides that the specific responsibilities of GPE and the subjects of GPE in relations regulated by civil legislation with the participation of foreign juridical persons , citizens and GPE are to be determined by the PERSON on the Immunity of the ORG and of its Property .","Therefore , it is hardly legitimate to include LAW property located abroad in LAW . Moreover , it should be noted that the concept of absolute immunity of a foreign ORG and of its property was reflected in LAW .","This concept does not find recognition in either the legislation of GPE ( Article CARDINAL , CARDINAL Code of Commercial Procedure of GPE , Articles CARDINAL and DATE , ORG ) , or in international treaties of GPE ( treaties on the encouragement and mutual protection of capital investments ) .","It should be taken into consideration that in modern circumstances absolute immunity may not be realised in practice and its adoption in the legislation of GPE will only impede the development of civil law relations with ORG participation . \u201d","Following the establishment of the foreign trade monopoly in GPE by LAW of DATE , the ORG , through ORG and its predecessors , carried out and controlled foreign trade . It established the types of entities entitled to participate in foreign trade and set limits on their participation , such as the nature of transactions they could enter into , the goods they could trade and import and export volumes . Trade with foreign States was to be carried out by ORG , which constituted agencies of ORG .","In the exercise of the foreign trade monopoly , GPE entered into numerous treaties on the legal status of ORG in other GPE . Treaties concluded by the GPE with socialist GPE provided for the mutual establishment of ORG , such as the following treaty concluded with the ORG .","According to LAW between the GPE and the ORG of CARDINAL DATE , either party can open a trade representation in the capital of the other party . The legal status of the representation is governed by the ORG to the LAW .","The Annex on ORG in the ORG and ORG in the GPE contains CARDINAL Articles . DATE that ORG would contribute to the development of trade between GPE . According to LAW is a constituent part of ORG . The trade representative and his \/ her deputies enjoy full diplomatic immunities and the LOC of ORG enjoy extraterritoriality . ORG may open branches upon the parties\u2019 agreement .","The ORG further provides :","\u201c ORG acts on behalf of its Government . The Government is only responsible for the foreign trade transactions concluded or guaranteed by ORG in the State of sojourn and signed by a competent person .","Names of persons competent to perform legal acts on behalf of ORG , as well as the scope of the competence of each such person , shall be published in an official organ of the State of sojourn . \u201d","\u201c The Trade Representation shall enjoy all immunities belonging to a sovereign ORG which relate to foreign trade , with the following exceptions agreed upon by the parties :","( a ) disputes arising out of foreign trade transactions concluded or guaranteed by ORG in accordance with LAW within the territory of the State of sojourn , in the absence of an arbitration agreement or an agreement [ to submit to ] a different jurisdiction , are subject to the jurisdiction of the courts of that ORG . At the same time , the courts can not apply preliminary attachment measures ;","( b ) enforcement of final judgments that have entered into force against ORG with regard to such disputes is only allowed in respect of goods and claims outstanding to the credit of ORG . \u201d","The LAW and the LOC remain in force for GPE .","The relevant provisions of the DATE LAW ( \u201c the Basle Convention \u201d ) read as follows :","\u201c CARDINAL . Subject to the provisions of LAW , a ORG can not claim immunity from the jurisdiction of the courts of ORG if the proceedings relate to an obligation of the ORG , which , by virtue of a contract , falls to be discharged in the territory of the ORG of the forum .","Paragraph CARDINAL shall not apply :","in the case of a contract concluded between GPE ;","if the parties to the contract have otherwise agreed in writing ;","if the ORG is party to a contract concluded on its territory and the obligation of the ORG is governed by its administrative law . \u201d","GPE is not a party to LAW .","In DATE ORG was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of GPE and their property . In DATE ORG adopted the ORG on ORG and Their Property based on restrictive immunity , that is a distinction between acts of sovereign authority ( acte jure imperii ) and acts of a private law nature ( acte jure gestionis ) . ORG that were used as the basis for the text adopted in DATE dated back to DATE . The relevant part of the text then read as follows :","\u201c CARDINAL . ...","( c ) \u201c commercial transaction \u201d means :","( i ) any commercial contract or transaction for the sale of goods or supply of services ;","( ii ) any contract for a loan or other transaction of a financial nature , including any obligation of guarantee or of indemnity in respect of any such loan or transaction ;","( iii ) any other contract or transaction of a commercial , industrial , trading or professional nature , but not including a contract of employment of persons .","NORP In determining whether a contract or transaction is a \u201c commercial transaction \u201d under paragraph CARDINAL ( c ) , reference should be made primarily to the nature of the contract or transaction , but its purpose should also be taken into account if , in the practice of the ORG which is a party to it , that purpose is relevant to determining the non - commercial character of the contract or transaction . ... \u201d","\u201c CARDINAL . If a ORG engages in a commercial transaction with a foreign natural or juridical person and , by virtue of the applicable rules of private international law , differences relating to the commercial transaction fall within the jurisdiction of a court of another ORG , the ORG can not invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction .","Paragraph CARDINAL does not apply :","( a ) in the case of a commercial transaction between GPE ; or","( b ) if the parties to the commercial transaction have expressly agreed otherwise .","The immunity from jurisdiction enjoyed by a ORG shall not be affected with regard to a proceeding which relates to a commercial transaction engaged in by a ORG enterprise or other entity established by the ORG which has an independent legal personality and is capable of :","( a ) NORP suing or being sued ; and","( b ) acquiring , owning or possessing and disposing of property , including property which the ORG has authorized it to operate or manage . \u201d","In DATE ORG adopted LAW and their Property . It was opened for signature on DATE . The final versions of LAW ) and CARDINAL and Article CARDINAL , as set out in the Convention , read as follows :","\u201c CARDINAL . ...","( c ) \u201c commercial transaction \u201d means :","( i ) any commercial contract or transaction for the sale of goods or supply of services ;","( ii ) any contract for a loan or other transaction of a financial nature , including any obligation of guarantee or of indemnity in respect of any such loan or transaction ;","( iii ) any other contract or transaction of a commercial , industrial , trading or professional nature , but not including a contract of employment of persons .","NORP In determining whether a contract or transaction is a \u201c commercial transaction \u201d under paragraph CARDINAL ( c ) , reference should be made primarily to the nature of the contract or transaction , but its purpose should also be taken into account if the parties to the contract or transaction have so agreed , or if , in the practice of the State of the forum , that purpose is relevant to determining the non - commercial character of the contract or transaction . \u201d","\u201c CARDINAL . If a ORG engages in a commercial transaction with a foreign natural or juridical person and , by virtue of the applicable rules of private international law , differences relating to the commercial transaction fall within the jurisdiction of a court of another ORG , the ORG can not invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction .","Paragraph CARDINAL does not apply :","( a ) in the case of a commercial transaction between GPE ; or","( b ) if the parties to the commercial transaction have expressly agreed otherwise .","Where a ORG enterprise or other entity established by a ORG which has an independent legal personality and is capable of :","( a ) NORP suing or being sued ; and","( b ) acquiring , owning or possessing and disposing of property , including property which that ORG has authorized it to operate or manage , is involved in a proceeding which relates to a commercial transaction in which that entity is engaged , the immunity from jurisdiction enjoyed by that ORG shall not be affected . \u201d","GPE signed the Convention on DATE . However , it has not ratified it yet ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83466","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF DAVID v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lived in PERSON . He did not have a family and lived alone .","NORP In DATE the applicant was found guilty of criticising the NORP authorities and of expressing the view that GPE had been occupied by GPE and that it should reunite with GPE . On the basis of a medical report ordered by the NORP courts , he was declared mentally unsound and sent for forced treatment in a psychiatric hospital in eastern GPE . He was held there for DATE , after which he was released and obliged to continue out - patient treatment in PERSON .","NORP In DATE the sentence against the applicant was quashed and he was acquitted .","On an unspecified date the applicant learned that he could obtain compensation for his illegal conviction and detention in a psychiatric hospital and that there was no time - limit for filing such an action .","In DATE he initiated civil proceedings against ORG , claiming compensation . He argued , inter alia , that after the forced medical treatment administered to him in DATE he had started to experience health problems , in particular he had lost his memory , had become emotionally frozen and unstable and therefore had been forced to live on a very small disability allowance .","During the proceedings ORG questioned his fitness to plead before courts in view of his medical background .","The applicant disagreed with the defendant , but fearing that his action would not be examined , agreed to submit to a medical examination in order to prove the contrary .","On an unspecified date the applicant underwent a medical examination by a specialised commission ; however , the commission could not reach a conclusion . In a document dated DATE it concluded that it would be impossible to reach a conclusion without a thorough examination of the applicant under conditions of hospitalisation .","On DATE Judge PERSON of ORG examined the possibility of committing the applicant for an in - patient examination . As the applicant agreed to be hospitalised , the court ordered on DATE an in - patient medical examination to be conducted by ORG , ORG .","On DATE the applicant went to the hospital , where , to his surprise , he was deprived of all his belongings and hospitalised together with persons of unsound mind with limited freedom of movement . According to him , the hospital was no longer heated in DATE , and since the clothes he was provided with were too thin for DATE , he caught a cold and developed acute bronchitis . DATE after his hospitalisation he asked to be released in order to go home , change clothes and buy medicines for his cold . However , the doctors did not authorise him to leave the ward in which he was hospitalised .","It appears from the applicant 's medical record that during his stay in the hospital he was not visited by anyone . According to him he could not complain to anyone about his detention and could not even make a telephone call or complain by other means to persons outside the hospital .","He was seen by doctors for TIME , during the routine TIME round . The rest of DATE he was at the mercy of the paramedical staff who usually forced patients to carry out public utility work around the hospital . He was not obliged to work because of his age and poor physical condition .","On DATE the applicant was released from the hospital . According to him , it took a long time to recover but he preferred not to complain immediately for fear of adverse consequences . He submitted that he feared being placed in detention again or that the results of the examination would be falsified .","On DATE the psychiatric hospital issued a report in which it concluded that the applicant was suffering from a mental condition , but that his reasoning was unaffected and that he was fit to plead before courts .","On DATE the applicant lodged a criminal complaint with ORG of LOC , asking it to prosecute the doctors who had held him in detention against his will . He described the conditions in which he had been detained and named CARDINAL doctors who had refused his requests to be allowed to leave the hospital . He argued that those doctors had committed an offence under Article CARDINAL of LAW \u2013 illegal deprivation of liberty DATE and asked for compensation .","On DATE ORG dismissed the applicant 's complaint . The applicant challenged the dismissal before ORG .","On DATE Judge PERSON of ORG upheld the applicant 's appeal and found , inter alia , that ORG had failed to clarify the conditions under which the in - patient medical examination was initially intended to be carried out , and also the conditions in which it had in fact been carried out . ORG had also failed to examine the applicant 's written request by which he had expressed his consent to be hospitalised and the manner of hospitalisation to which he had consented . Judge PERSON ordered a new investigation into the applicant 's complaint .","On DATE ORG dismissed the applicant 's complaint , again without giving any new arguments . It only stated that the instructions of ORG had been followed , but that this did not influence the initial decision not to institute criminal proceedings . The applicant again challenged the dismissal .","On DATE Judge PERSON of ORG dismissed the applicant 's appeal , finding that his detention had been carried out in accordance with the court order of DATE .","The Code of Civil Procedure provides for CARDINAL possibility for a person to be submitted to a psychiatric examination against his or her will . LAW of the Code deals with the proceedings intended to limit the legal capacity of a person . According to LAW such proceedings can be initiated by the ORG , by a prosecutor or by the family of a person of unsound mind or who makes abusive use of alcohol or drugs . Article CARDINAL provides that a judge examining an action to limit a person 's legal capacity can order the person concerned to undergo a psychiatric medical examination . If the person does not comply with the order , the judge can decide , during a hearing at which a psychiatrist is present , to oblige the person to undergo a psychiatric examination despite his or her opposition .","Section CARDINAL of the Law on Psychiatric Assistance provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of LAW or in accordance with the provisions of LAW of that law . In both cases , except for reasons of urgency , the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists .","Section CARDINAL of the same law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will . It provides that a person suffering from a mental disorder can be hospitalised against his or her will , before a court judgment for that purpose has been issued , when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others , when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone , and if left untreated , the mental disorder could cause serious harm to the health of the individual concerned .","Pursuant to section CARDINAL of the law the compulsory hospitalisation for treatment of a person in accordance with CARDINAL must be decided by a court . The hospital must apply to the court for permission , indicating in the application the reasons for which the hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists . Pursuant to section CARDINAL , the court examining the application must take a decision within DATE from the date on which the application was lodged and the person concerned has the right to participate in the hearing . If the person 's condition is serious and he or she can not come to the court , the judge is obliged to hold the hearing at the hospital . The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation .","Section CARDINAL of the same law provides , inter alia , that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request . On the other hand , a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80843","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2007,"docname":"LOZHKIN v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the town of Kandalaksha in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by PERSON , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant decided to purchase a car in GPE . According to the applicant , he applied to ORG GPE \u0442\u0430\u043c\u043e\u0436\u043d\u044f , \u201c the ORG \u201d ) for information concerning the applicable customs regulations and fees and was informed that the customs border between the CARDINAL states had ceased to exist , customs restrictions had been abolished , and therefore the NORP customs authorities no longer collected duties in respect of motor vehicles imported from GPE into GPE .","On DATE the applicant purchased a second - hand NORP car in GPE .","On DATE he brought the vehicle into GPE and passed through customs control in ORG without being required to pay any duties . The inspector in charge stamped the invoice for the purchase of the car to indicate that the customs formalities had been accomplished and no customs clearance was needed .","On DATE ORG registered the applicant \u2019s vehicle .","On DATE ORG informed the applicant that he had failed to comply with clearance requirements when he imported his motor vehicle into GPE and had to present his car to ORG before DATE to obtain clearance .","By a letter of CARDINAL DATE ORG notified the applicant that he had failed to pay customs duties and other related taxes on his imported car totalling ORG ( approximately ORG CARDINAL ) in time . In the same letter it required the applicant to pay a DATE penalty ( \u043f\u0435\u043d\u044f ) for the delay in the payment of the above sum starting from the date on which the vehicle had entered GPE . The penalty amounted to ORG ( approximately ORG CARDINAL ) and continued to accrue . The sums were payable before DATE .","The applicant refused to comply with these decisions and challenged the above order before the director of ORG .","By a letter of DATE CARDINAL of the deputy directors of ORG informed the applicant that an investigation had been started into the alleged failure of an unidentified person to make a proper declaration in respect of a motor vehicle that had been imported from GPE into GPE and registered by ORG on DATE . The investigation established that the car in question had been purchased by the applicant , who had then applied for its registration . The applicant had allegedly repeatedly been summoned as a witness but had failed to appear .","The letter further stated :","\u201c ... it is true that the papers on the car which you have imported contain checks by ORG \u2013 a stamp stating \u2018 customs control accomplished ; customs clearance not required\u2019 , signed by a customs officer and sealed with his personal stamp . Yet the vehicle is not registered at the customs registry [ and ] the customs control has not , in fact , been performed . According to the directive issued by ORG of GPE on DATE ... , a customs control can not be finalised unless there is proof of the transfer of customs duties and other taxes collected in GPE to the federal budget of GPE . The customs officer sent no such request to the NORP authorities and , accordingly , such proof is missing .","The customs officer , who checked and stamped your documents did , therefore mislead you ... and will take responsibility for this . However , this does not absolve you of the obligation to clear duly the motor vehicle through customs in the proper manner .","As you failed to produce the vehicle within the fixed time - limit and did not perform the customs clearance in ORG in compliance with [ our ] orders of DATE and DATE , administrative proceedings for breach of customs regulations have been brought against you ... \u201d","The applicant stated that he had never received the order of DATE and that he had attended ORG once , on receipt of the first summons .","The applicant challenged the decision of ORG concerning the imposition of the duties and a fine in court .","On DATE the ORG of GPE ( \u041a\u0430\u043d\u0434\u0430\u043b\u0430\u043a\u0448\u0441\u043a\u0438\u0439 \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0439 \u0441\u0443\u0434 \u041c\u0443\u0440\u043c\u0430\u043d\u0441\u043a\u043e\u0439 \u043e\u0431\u043b\u0430\u0441\u0442\u0438 ) gave a judgment in the applicant \u2019s favour .","It found that the applicant \u2019s vehicle pertained to a category of goods originating in a third country that had been duly released into free circulation on the territory of GPE . It then had regard to Decree no . CARDINAL issued by the President of GPE on DATE , the resolution of the Government of GPE no . CARDINAL of DATE , Directive no . CARDINAL - CARDINAL\/CARDINAL issued by ORG on DATE and other relevant instruments ( see the \u201c Relevant domestic law \u201d ) and held that they had abolished customs control and customs clearance in respect of the said category of goods .","The court rejected the defendant \u2019s argument that the requirement to pay the customs duties in the present case was justified by the fact that the implementation of the customs union between the CARDINAL states was not yet complete . With respect to the defendant \u2019s argument that the applicant had failed to present the necessary documents when passing through customs control as prescribed by the directive of ORG of CARDINAL DATE , the court noted that the directive in question was unclear and ORG had misconstrued it .","The court concluded that the applicant was , therefore , exempt from the customs duties and other fees and that the customs authorities\u2019 order was unlawful .","On DATE , on an appeal by ORG , ORG quashed the above judgment and substituted its own decision .","It agreed with the finding of the court below that the applicant \u2019s car had originated in a third country and been duly released in GPE , and the applicant had properly declared it and passed through customs control in GPE . However , ORG considered that ORG had erred in law in holding that the category of goods to which the applicant \u2019s car belonged was unconditionally exempt from customs clearance . It referred to the incomplete implementation of the customs union and the applicant \u2019s failure to produce the documents required by the aforementioned directive of ORG and ruled that the claims of ORG were well - founded . It accordingly dismissed the applicant \u2019s complaint .","On an unspecified date ORG brought a court action against the applicant for the recovery of the amounts due in respect of the customs duties and surcharges .","On DATE ORG granted its claims in part . It noted that the court decision of DATE was res judicata in the applicant \u2019s case and therefore the applicant was under an obligation to pay the customs duties amounting to ORG ( approximately LAW ) . However , it absolved the applicant of payment of the surcharges after noting that his failure to pay the customs duties in time had been due to the general uncertainty and ambiguity of the regulations governing the import of goods from GPE to GPE .","On DATE ORG upheld the first instance judgment on appeal .","According to the applicant , he had to pay the sum due by instalments because of its size . He discharged his obligation in full in DATE .","LAW provides , as follows :","\u201c Import customs duties , taxes and contributions of equivalent value on goods originating in a third country shall be levied in the budget of ORG which is the country where such goods are consigned . \u201d","Article CARDINAL \u00a7 CARDINAL of the ORG provides , so far as relevant , as follows :","\u201c The Contracting Parties ... shall abolish customs control at the border between them ... provided that reliable customs control is exercised at their external borders \u201d .","In line with the Agreement , on CARDINAL DATE the President of GPE issued decree no . CARDINAL abolishing customs control at the border between GPE and GPE .","On DATE the Government of GPE adopted resolution no . CARDINAL implementing the above decree . In particular , it ordered that ORG to abolish customs control and customs clearance at the border between GPE and GPE in respect of , inter alia , goods originating from GPE or that had been released into free circulation in GPE .","On DATE ORG GPE issued directive no . CARDINAL - CARDINAL\/CARDINAL exempting goods originating in a third country and duly released into free circulation in GPE from customs duties in GPE . In order to obtain the exemption a document had to be produced proving that the import duties paid to the NORP customs authorities had been transferred into the budget of GPE . Failure to provide such proof would result in the imported goods of the said category being subject to customs clearance in GPE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91608","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2009,"docname":"CASE OF SANDRA JANKOVI\u0106 v. CROATIA","importance":2,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in Split . She is unemployed and unwaged .","From DATE the applicant occupied a room and common premises of a privately owned flat in Split together with other tenants . On DATE the applicant found that the lock of the entrance door to the flat had been changed and that her belongings had been removed from the flat . The applicant called the police , who drew up a report . On DATE the applicant brought a civil action in ORG ( PERSON ) against CARDINAL individuals , GPE and GPE , seeking protection against the disturbance of her occupation of a room and common LOC in the flat .","After a first - instance judgment by default of DATE had been quashed at a hearing held on DATE before ORG , subsequent hearings were held on DATE , CARDINAL DATE , DATE , CARDINAL May and DATE , when a fresh judgment , allowing the applicant \u2019s claim , was adopted . It was , however , quashed by ORG ( PERSON ) on DATE and the case was remitted to ORG .","In the fresh proceedings ORG held hearings on DATE , DATE and DATE and DATE , DATE , DATE and DATE . On DATE a judgment ordering that the applicant was to regain her co - occupation of the flat in question was adopted . A subsequent appeal by the defendants was declared inadmissible in a decision of ORG , adopted on DATE , which was upheld by ORG on DATE .","Since the defendants in the civil proceedings had failed to comply with the judgment of DATE , the applicant applied to ORG on DATE , seeking an enforcement order . The order was issued on DATE . The defendants lodged an appeal . The execution of the order was scheduled for DATE . It was duly carried out . However , on DATE the applicant was thrown out of the flat ( see paragraph CARDINAL below ) . Accordingly , on DATE she requested ORG to resume the enforcement proceedings .","On DATE the ORG allowed the GPE appeal , quashed the enforcement order of DATE and remitted the case to ORG . The latter , on DATE , invited the applicant to amend her request . The applicant submitted an amended request on DATE . On DATE ORG again invited the applicant to amend her request . The applicant submitted the amended request on DATE . On DATE ORG invited the applicant to adjust her request within DATE . On DATE ORG dismissed the applicant \u2019s request for the enforcement proceedings to be resumed .","On DATE the applicant complained to ORG ( Ustavni sud Repbulike Hrvatske ) about the length of the civil proceedings described above . In a decision of DATE ORG dismissed the complaint as ill - founded , finding that the proceedings had been concluded within a reasonable time .","On DATE the applicant lodged a complaint about the length of the enforcement proceedings with ORG . On DATE ORG allowed the complaint , found a violation of the applicant \u2019s right to a hearing within a reasonable time , awarded her CARDINAL NORP kunas ( HRK ) in compensation and ordered ORG to complete the enforcement proceedings within DATE , although in fact those proceedings had already ended with ORG decision of DATE . ORG examined the length of the enforcement proceedings with reference to the period from DATE until DATE .","On DATE , DATE after the applicant had regained possession of the flat in question , she was attacked by CARDINAL individuals , QUANTITY women and a man , upon her arrival in front of the flat . During the incident of DATE the police were called and arrived on the scene . They interviewed the applicant and drew up a report . The relevant part of the report reads as follows :","\u201c [ The applicant ] stated that at TIME she had been verbally and physically attacked by CARDINAL individuals when she had attempted to enter a flat ... The attackers had pulled her hair , hands and clothes and thrown her down the stairs from the first floor . They had also insulted her by shouting obscenities ... She further stated that they had threatened to kill her if she came back .","...","There were visible bruises and contusions on PERSON \u2019s right hand and her shirt was torn at the back . She asked for medical assistance after the interview .","... \u201d","On DATE the police lodged a complaint with ORG against CARDINAL individuals , including PERSON , for disturbance of public peace and order , alleging that they had physically attacked the applicant , kicked her entire body , pulled her by the hair and pushed her down the stairs , all the while shouting obscenities at her . The first hearing in the proceedings was held on DATE .","In a decision of CARDINAL DATE the ORG found all CARDINAL defendants guilty of insulting the applicant with defamatory expressions and sentenced them to a fine in the amount of HRK CARDINAL . As to allegations of the physical assault on the applicant they found that there were insufficient evidence in that respect .","NORP However , this decision did not become final since the applicant lodged an appeal , complaining that ORG had not addressed her allegations of physical assault . On DATE the same ORG terminated the proceedings on the ground that the prosecution in respect of the offences with which the defendants were charged had meanwhile become time - barred . The applicant lodged an appeal . Both appeals lodged by the applicant were dismissed on CARDINAL DATE by ORG .","In a detailed criminal complaint of DATE filed against CARDINAL individuals with the ORG ( Op\u0107insko dr\u017eavno odvjetni\u0161tvo Split ) the applicant alleged , inter alia , that on DATE at TIME , when she had arrived in front of the flat in question , CARDINAL individuals , PERSON , ORG and ORG , had come out of the flat , shouting at her and preventing her from entering the flat . They had attacked her physically , insulted her and threatened her , telling her not to come back or she would disappear and \u201c be disposed of \u201d . The applicant also submitted medical evidence showing that she had sustained blows to her elbow and tailbone .","In a decision of CARDINAL DATE the ORG Attorney \u2019s ORG decided not to open an official investigation on the ground that the act in question qualified as a criminal offence of inflicting bodily injuries of a lesser nature and that a prosecution for that offence had to be brought privately by the victim . The decision , inter alia , stated :","\u201c In her criminal complaints [ the applicant ] stated that on DATE TIME in front of a flat in Split ... , the suspects had verbally attacked her and insulted her , kicked her with their hands and legs all over her body , pulled her hair and pushed her down the stairs while PERSON had also threatened her not to come back to the flat or otherwise she would disappear .","... \u201d","The applicant was also instructed to proceed accordingly and to lodge within DATE a request for an investigation with a ORG investigation judge .","The applicant complied with the said instruction on DATE and submitted a request to a ORG investigation judge seeking to have an investigation opened in connection with the above event . She sought an investigation in respect of CARDINAL individuals , including GPE , GPE and PERSON , listing their names and addresses . She proceeded to describe the event in question in detail , specifying the acts carried out by her QUANTITY attackers . She made a list of evidence in support of her allegations , including medical documentation about the injuries she had sustained and the police report issued on DATE . She further alleged that these acts constituted , inter alia , the criminal offence of making threats under LAW and the criminal offence of violent behaviour under LAW . She specified her allegations in respect of each of the individuals concerned .","On DATE ORG invited the applicant to amend her request within DATE so as to include a description of the offence , the legal classification of the offence and circumstances showing that there was a well - founded suspicion that the individuals in question had committed criminal offences , as well as evidence supporting her allegations . On DATE the applicant submitted an amended request , repeating in essence the same allegations as in her initial request . In her further submissions of CARDINAL DATE the applicant submitted some documents from the minor - offences proceedings .","On DATE the ORG investigation judge declared the applicant \u2019s request for an investigation ( ista\u017eni zahtjev o\u0161te\u0107ene kao tu\u017eiteljice ) inadmissible . The relevant part of this decision reads :","\u201c The injured party , acting as subsidiary prosecutor ( o\u0161te\u0107ena kao tu\u017eitelj ) , has lodged with this court a request for an investigation in respect of PERSON and others ...","Pursuant to LAW , paragraph CARDINAL , of LAW , this court invited the injured party acting as subsidiary prosecutor on DATE and once again orally , to amend her request and warned her that it would be declared inadmissible if she did not comply with the instruction within the set time - limit . The injured party acting as subsidiary prosecutor answered both calls but has failed to amend her request for an investigation in accordance with the court \u2019s instruction . The court considers the injured party \u2019s submission incomprehensible and incomplete . Therefore , it has to be declared inadmissible pursuant to LAW , paragraph CARDINAL , of LAW . \u201d","On DATE the applicant lodged an appeal against the above decision with ORG . She claimed that she had fully complied with the instructions given in the court \u2019s letter of DATE amending her initial request for an investigation so that it contained all the necessary information . She further contended that she had never received an oral invitation . On DATE ORG dismissed the applicant \u2019s appeal , finding that \u201c the submissions lodged by the subsidiary prosecutor are incomprehensible and incomplete \u201d . The applicant lodged a further appeal against that decision .","On DATE the applicant also complained to ORG ( PERSON ) about the length of the criminal proceedings . On DATE the applicant \u2019s complaint was dismissed and she was instructed to lodge such a complaint with ORG . On DATE the applicant lodged a complaint about the length of proceedings with ORG , before which it is still pending .","NORP The applicant \u2019s appeal was declared inadmissible by ORG on DATE . On DATE the applicant lodged a fresh appeal , which is still pending .","The relevant parts of LAW ( PERSON , ORG no . CARDINAL\/CARDINAL ) read as follows :","\u201c ( CARDINAL ) Criminal proceedings in respect of criminal offences shall be instituted by ORG in the interest of GPE and its citizens .","( CARDINAL ) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private prosecution or that the ORG Attorney \u2019s ORG should institute criminal proceedings upon [ a private ] application . \u201d","\u201c Whoever inflicts bodily injury to another person or impairs another person \u2019s health shall be fined or sentenced to imprisonment for a term not exceeding DATE . \u201d","\u201c Criminal proceedings for the offence of inflicting bodily injury ( LAW ) shall be instituted by means of private prosecution . \u201d","\u201c ( CARDINAL ) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined CARDINAL DATE wages or sentenced to imprisonment for a term not exceeding DATE .","( CARDINAL ) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year .","...","( CARDINAL ) Criminal proceedings for the criminal offences defined in DATE and QUANTITY of this Article shall be instituted upon [ a private ] application . \u201d","\u201c A public official , or another person acting at the instigation or with the explicit or tacit acquiescence of a public official , who inflicts on another person pain or grave suffering , whether physical or mental , for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , shall be sentenced to imprisonment for a term from DATE . \u201d","\u201c Whoever for such purposes as violent abuse , ill - treatment or particularly insolent behaviour in public submits another person into a degrading position shall be sentenced to imprisonment for a term from DATE . \u201d","The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL\/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :","\u201c ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...","( CARDINAL ) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor .","( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .","( CARDINAL ) Where the ORG Attorney finds that there are no grounds to institute or conduct criminal proceedings , the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this LAW . \u201d","LAW obliges the court conducting the criminal proceedings to instruct a participant in those proceedings who may be ignorant in such matters about his or her rights and the consequences of a failure to undertake a requisite procedural step .","Articles CARDINAL to CARDINAL regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor . The Criminal Code distinguishes between these CARDINAL roles . A private prosecutor ( privatni tu\u017eitelj ) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by LAW ( these are offences of a lesser degree ) . The injured party as a subsidiary prosecutor ( o\u0161te\u0107eni kao tu\u017eitelj ) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute .","\u201c ( CARDINAL ) A request to prosecute shall be lodged with the competent ORG Attorney \u2019s ORG and a private prosecution with the competent court .","( CARDINAL ) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute .","( CARDINAL ) Where the injured party has lodged a criminal complaint or a request to prosecute but the [ competent authorities ] establish that the criminal offence in question should be prosecuted upon a private prosecution , the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if they have been submitted within the time - limit prescribed for [ bringing ] a private prosecution ... \u201d","Pursuant to LAW , the ORG Attorney is under a duty to inform the injured party within DATE of a decision not to prosecute and of the party \u2019s right to take over the proceedings , as well as to instruct that party on the steps to be taken .","\u201c ...","( CARDINAL ) Where the criminal proceedings are conducted upon a request by the injured party acting as a subsidiary prosecutor in respect of a criminal offence punishable with more than CARDINAL years\u2019 imprisonment , he or she may ask to have legal counsel appointed free of charge where this is in the interests of the proceedings and where the injured party lacks the means to bear the expenses of legal representation ... \u201d","\u201c ( CARDINAL ) Private prosecutions , bills of indictment , requests to prosecute , legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law .","( CARDINAL ) The submissions referred to in paragraph CARDINAL shall be comprehensible and contain the necessary information for the authorities to act upon them .","( CARDINAL ) Unless otherwise provided in this LAW , the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them . Where the submissions have not been amended as required , the court shall declare them inadmissible .","( CARDINAL ) In its invitation to amend the submissions , [ the court conducting the proceedings ] shall warn the person concerned about the consequences of not complying with the instruction . \u201d","\u201c ( CARDINAL ) ORG shall report criminal offences subject to public prosecution .","... \u201d","\u201c ( CARDINAL ) A [ criminal ] complaint shall be lodged with the competent ORG Attorney \u2019s [ ORG ] in writing or orally .","... \u201d","\u201c Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution , the competent ORG Attorney shall declare it inadmissible in a reasoned decision ... \u201d","Article CARDINAL governs , inter alia , the required contents of a request for an investigation , namely : identification of the person in respect of whom the request is submitted , a description and the legal classification of the offence at issue , the circumstances confirming a reasonable suspicion that the person concerned has committed the offence at issue , and the existing evidence .","Article CARDINAL , paragraph CARDINAL , allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigation judge of a competent court a request for prosecution and other submissions ."],"violated_articles":["6","8"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81232","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2007,"docname":"KUZNETSOVA v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG were represented by PERSON , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant purchased a flat from a private company . It subsequently transpired that the flat was under charge . On DATE and CARDINAL DATE ORG of GPE declared the sale of the flat to the applicant void ab initio and transferred the title to it to a Mrs S.","On DATE the applicant sued the original seller , claiming recognition of her title to the flat . By judgment of CARDINAL June CARDINAL the Krasnooktyabrskiy ORG accepted her claim . This judgment became final . On DATE it was set aside because the judgment of CARDINAL DATE had not been taken into account , and the proceedings resumed .","Having re - examined the applicant \u2019s claim against the original seller , on DATE ORG discontinued the proceedings for lack of jurisdiction . On DATE the Presidium of ORG re - opened the proceedings by way of supervisory review . On DATE ORG issued a new decision discontinuing the proceedings , which was again quashed by way of supervisory review on DATE for similar reasons .","DATE and DATE , and then DATE the proceedings were either adjourned or stayed upon the applicant \u2019s requests . On DATE the ORG rejected the applicant \u2019s claim for recognition as a good faith purchaser of the flat . The applicant appealed to ORG . After she had complied with the formal requirements , her appeal was scheduled for hearing . On DATE its examination was adjourned until DATE due to the applicant \u2019s illness . On DATE the ORG quashed the judgment of DATE and remitted the case for a re - examination . It found that ORG had failed to examine some of the applicant\u2019","In DATE and DATE the proceedings were stayed at the other party\u2019 requests . The applicant did not challenge these suspensions of the proceedings .","By judgment of CARDINAL DATE ORG dismissed again the applicant \u2019s claim . On DATE and CARDINAL DATE the judgment was rectified . On DATE the ORG quashed the judgment and remitted the matter to the district court for a fresh decision . The proceedings were stayed on DATE until DATE due to PERSON illness . The hearings scheduled for DATE and DATE were adjourned because the presiding judge ORG was involved in another case or had a meeting in the town hall .","On DATE the ORG stayed the proceedings at the other party \u2019s request . On DATE the ORG quashed that decision . On DATE ORG rejected as unfounded the applicant \u2019s bias complaint in respect of judge T. and adjourned the hearing at the other party \u2019s request .","By judgment of DATE the ORG declared the sale of the flat void ab initio and ordered the respondent company to pay MONEY to the applicant . ORG upheld that judgment on DATE .","In a litigation between the original seller and third persons , including PERSON , on DATE ORG upheld PERSON title to the flat . The court refused to process the applicant \u2019s appeal against the judgment on the ground that she had no standing in those proceedings . Apparently , the applicant did not appeal against this refusal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110253","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2012,"docname":"CASE OF \u0130LBEYI KEMALO\u011eLU AND MERIYE KEMALO\u011eLU v. TURKEY","importance":2,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Isabelle Berro-Lef\u00e8vre","text":["The applicants were born in DATE and DATE respectively , and live in GPE . They are the parents of Atalay LOC , who died in DATE , when he was DATE .","On DATE GPE was hit by a heavy snow storm . Consequently , upon the instructions of ORG , schools in GPE broke up for the DATE beak DATE than scheduled . On DATE , Atalay had gone to his primary school on the municipality \u2019s shuttle , which travelled between his home and the school . After the school bulletins had been distributed , classes were dismissed at DATE , before the normal school day was over .","According to the information in the case file , Atalay had not enrolled for the paid school bus , but was using the shuttle that was operated for free by the municipality . As the early dismissal of the classes had not been notified to the municipality , the shuttle did not come when the school was closed . Atalay therefore tried to walk back home , which was QUANTITY away from his school . TIME , when he did not return from school , the applicants called the police . However , it was not possible to find Atalay . His body was found the following day , frozen near a river bed .","Following the incident , the Primary School Inspectors\u2019 Presidency of ORG ( GPE Valili\u011fi \u0130l Milli E\u011fitim M\u00fcd\u00fcrl\u00fc\u011f\u00fc \u0130lk\u00f6\u011fretim PERSON ) initiated an investigation , during which the inspectors took the statement of the driver of the municipality \u2019s shuttle . He explained that on DATE of the incident he had taken CARDINAL students from their homes and had left them in front of the school . DATE , he took them back around TIME On DATE , no one informed him that the school would be closed at TIME Therefore , when he went to the school , everyone had already left . The inspectors prepared a report on DATE and found that the deputy headmaster of the school had been at fault for not informing the municipality about the early closure of the schools . On DATE the Presidency concluded that the deputy headmaster of the school had been at fault for neglecting to inform the municipality \u2019s shuttle service of the early dismissal of the classes . It accordingly decided to issue a warning to the deputy headmaster as a disciplinary sanction .","On DATE the applicants filed CARDINAL separate actions with ORG against ORG , GPE and GPE . Alleging that their son had lost his life due to the negligence of the domestic authorities , the first applicant requested MONEY ( TRL ) ( MONEY ( ORG ) at the time ) and the second applicant GPE CARDINAL,CARDINAL,CARDINAL ( QUANTITY at the time ) covering both pecuniary and non - pecuniary compensation . They also requested legal aid for the court fees .","On DATE ORG requested the applicants to complete the case file by submitting relevant documents in support of their legal aid claim within DATE .","In support of their legal aid claim , both applicants submitted to ORG certificates from the office of the headman ( muhtarl\u0131k ) attesting to their indigence , certificates from the LOC confirming that they did not own any immovable property and certificates indicating that they were in debt to ORG .","On DATE ORG dismissed the applicants\u2019 request for legal aid without giving any specific reasons .","Subsequently , on CARDINAL DATE the applicants were notified that they were required to pay ORG ( MONEY at the time ) and ORG ( approximately ORG CARDINAL,CARDINAL at the time ) respectively for the court fees within DATE in order for the proceedings to be continued .","On DATE ORG decided to discontinue the proceedings as the applicants had failed to pay the relevant court fees .","In the meantime , on DATE the applicants filed a criminal complaint with ORG against the school headmaster , the deputy headmaster and PERSON class teacher . On an unspecified date , pursuant to Law no . DATE ( PERSON on the Prosecution of Civil Servants and Public Officials ) ORG referred the file to LOC office and requested authorisation to prosecute the accused persons .","On DATE the LOC Governor refused to authorise the public prosecutor to initiate criminal proceedings against the school headmaster , the deputy headmaster and the class teacher , on the basis of a report prepared by the headmaster of ORG , who stated that no fault could be attributed to the accused persons .","On DATE the applicants lodged an objection against the decision of the LOC Governor \u2019s office .","On DATE ORG annulled the decision of LOC and held that there was sufficient evidence in the case file to initiate criminal proceedings against the accused headmaster , deputy headmaster and class teacher .","Accordingly , on DATE the ORG filed an indictment with ORG against S.\u00c7 ( the deputy headmaster of the school ) , PERSON ( ORG \u2019s class teacher ) and ORG ( the school headmaster ) , accusing them of misconduct in office under LAW of the former LAW . The applicants joined the criminal proceedings as civil parties and reserved their right to claim compensation .","During the proceedings , the court heard the defence statements of the accused . Atalay \u2019s class teacher , PERSON , maintained that a day before the incident she had told her students that their parents should be present on DATE as school bulletins would be distributed . The court also obtained an expert opinion from a psychologist , who stated that a DATE child could not be expected to find effective solutions when faced with extraordinary situations . In this connection , she stated that the child could not have foreseen the dangers he would face when he tried walking home alone in the heavy snow storm .","On DATE the ORG acquitted the accused persons of the charges against them . In its decision , the court held that the death of Atalay had not been the result of a deliberate action . The reasoning stated that there were CARDINAL pupils in the school , and that it could not be considered reasonable to expect the school authorities to control where the pupils went after the classes were dismissed . The court further held that in order to conclude that there had been misconduct in office , the public officer had to have wilfully neglected performing his duty . According to the court , in the instant case the school authorities could not be reasonably expected to foresee that Atalay would be frozen to death on his way back home . The court also decided that it did not have jurisdiction to examine whether or not there had been a service - related fault ( hizmet kusuru ) in the circumstances of the present case .","On DATE ORG quashed the judgment of ORG , without examining the merits of the case , for procedural reasons , namely due to the absence of the signature of the court \u2019s clerk on TIME of a hearing which had been held on DATE . The case file was accordingly remitted to ORG .","On CARDINAL DATE the ORG once again acquitted GPE , S.\u00d6 and ORG of the charges against them on the basis of the same reasoning as given in its previous judgment of DATE .","The appeal proceedings are still pending before ORG .","A full description of the relevant domestic law regarding legal aid may be found in GPE and PERSON v. GPE , no . QUANTITY , \u00a7 \u00a7 DATE , DATE","In DATE , the minimum wage in force was GPE CARDINAL ( approximately EUR CARDINAL at the time ) DATE ."],"violated_articles":["2","6"],"violated_paragraphs":["2-1","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82040","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF HASAN GENC v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was granted a lease by GPE to run a car park on a plot of land by the coast in the GPE district of GPE .","On DATE and DATE ORG attached to ORG issued CARDINAL orders requesting the applicant to pay compensation for occupying the car park DATE and DATE .","On DATE , DATE and DATE respectively the applicant filed CARDINAL separate cases with ORG against ORG , requesting that the orders be annulled . The first case concerned the period DATE and DATE , the second case concerned the period DATE and DATE and the third case concerned the period DATE and DATE .","On DATE ORG annulled the orders dated DATE and DATE . The administrative authority appealed . ORG on DATE ORG quashed the respective judgments of ORG .","On DATE ORG followed the reasoning set out in ORG decision and dismissed the cases . The applicant appealed .","On DATE ORG quashed the respective judgments of ORG once again .","On DATE ORG decided to annul the respective compensation orders .","According to the information in the case file based on the latest submissions by the parties , both actions are apparently still pending before ORG .","On DATE ORG annulled the compensation order dated DATE . The administrative authority appealed and subsequently on CARDINAL DATE ORG quashed the judgment of ORG .","On DATE ORG followed the reasoning set out in ORG decision and dismissed the case . According to the information in the case file , this action is still pending before ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4571","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":1999,"docname":"S.N. v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Josep Casadevall","text":["The applicant is an NORP national , born in GPE in DATE and , according to the most recent information contained in the file , living in the GPE .","He is represented before the ORG by PERSON , a lawyer attached to the \u2018 s - ORG Seekers ( PERSON ) based in GPE .","The proceedings in question in the present case concern the applicant \u2019s application for recognition of his refugee status in the GPE .","The following is a summary of the proceedings :","The applicant entered the GPE on DATE on a valid NORP passport bearing his own name . A photocopy of the passport was made by the immigration authorities before it was handed back to the applicant . The applicant applied for recognition of his refugee status ( or in the alternative , a residence permit on humanitarian grounds ) DATE .","According to the report of the interrogation referred to in the following paragraph , the passport contained a NORP visa .","The applicant was interrogated ( nader gehoor ) by an official of ORG ( Immigratie- en Naturalisatiedienst ) of ORG on DATE . No lawyer or other assistant was present . The applicant spoke his own language , LANGUAGE , and was assisted by an interpreter .","The applicant stated that the NORP visa had been arranged for him by an acquaintance called PERSON whose address he did not know . PERSON was an active member of the NORP organisation , which is illegal in GPE , but the applicant was unable to state particulars on PERSON \u2019s activities . ORG After arriving at FAC the applicant had given his passport to an assistant of the person who had arranged his journey for him . He had not had to pay for his journey ; PERSON had done that , apparently on the instructions of the Mujahedin .","None of the applicant \u2019s relatives \u2013 parents , siblings \u2013 had ever been in trouble with the NORP authorities or with any organisations or groups in GPE . Neither had the applicant himself .","The applicant claimed to be a member of the NORP but held no membership card . His activities in GPE had consisted of writing \u201c code - like slogans \u201d ( code - achtige leuzen ) on walls , on the instructions of one H. who was his contact with the party . He was unable to explain the meaning of these code - like slogans .","In addition , he had taken part in a demonstration in the town of PERSON on DATE aimed at obtaining provincial autonomy for that locality . This demonstration , in which CARDINAL persons had participated , had been indirectly organised by the Mujahedin . It had resulted in the wrecking of a public building . The demonstration had been video taped . On DATE the applicant \u2019s contact PERSON had failed to turn up for an appointment and on DATE the applicant had gone into hiding .","The applicant had been warned by PERSON on DATE that H. had been arrested and that his ( the applicant \u2019s ) life would be in danger if PERSON mentioned him to the authorities .","The applicant had been able to leave GPE on his own passport because PERSON had contacts who could influence the passport officials via the Mujahedin organisation . PERSON himself had come to GPE airport to see the applicant off .","The applicant stated that he had nothing further on which to base his request for recognition of his refugee status . He feared that , if returned to GPE , he would be imprisoned and made to tell the authorities everything he knew about the GPE , after which he would be executed .","The Mujahedin are an organisation outlawed in GPE . It follows a NORP ideology and is opposed to the present NORP government .","On DATE the Deputy Minister of ORG gave a decision refusing the applicant \u2019s applications . Firstly , he did not consider it credible that the applicant had ever been involved in the activities of the NORP , given that he had never held a party card and was unable to explain the code - like slogans which he had allegedly written on walls . The applicant \u2019s participation in the demonstration in PERSON on DATE was in itself not decisive , in view , especially , of the large number of participants and the fact that the applicant was not among its leaders . Secondly , the applicant had been able to return to his home and remain there in perfect safety at least until DATE ; if the NORP authorities had wanted to prosecute him they would presumably have arrested him immediately . Thirdly , the applicant had left GPE travelling under his own name and on a valid passport which was checked by the authorities at his departure . In view of these circumstances the applicant \u2019s application for recognition of his refugee status was manifestly ill - founded . Finally , no cogent reasons of a humanitarian nature to grant the applicant a residence permit had been suggested , nor were any such reasons apparent .","The applicant lodged an objection ( bezwaarschrift ) to the Deputy Minister against this decision . In so far as it was directed against the refusal of recognition of his refugee status , against which no objection was possible , the applicant \u2019s objection was transmitted to ORG of The Hague to be dealt with on the basis that it constituted an appeal .","The applicant also applied directly to the President of ORG of GPE for an interim measure consisting of a decision preventing his expulsion pending the further proceedings .","A single - judge chamber of ORG of The Hague , sitting in GPE , dealt with all CARDINAL of the remedies instituted by the applicant \u2013 the objection against the refusal of a residence permit , the appeal against the refusal of recognition of his refugee status , and the application for an interim measure \u2013 together . A hearing was held on DATE . The applicant had not been expelled in the meanwhile .","ORG gave a decision on DATE . It held that the applicant \u2019s story was not credible , and in so far as it was true , insufficient in any case to grant him recognition of his refugee status . The applicant was not able to provide any information at all about the Mujahedin DATE an organisation which , in any event , was active mostly outside GPE DATE , he had never even seen a party card and could not state whether other members had such a card or not , and he was unaware of the meaning of the slogans he had allegedly written on walls ; on these grounds it was held unlikely that he had been a member of that organisation . Moreover , the slogans were allegedly intelligible only for a select group , and the applicant had never been arrested in connection with his activities . That H. might betray the applicant was no more than a supposition and had not been substantiated . In so far as the applicant \u2019s fears were based on his participation in the demonstration in PERSON , it was noted that the applicant had not been able to substantiate his allegation that the authorities were aware of it , and he had moreover not found it necessary to flee until DATE . He had , moreover , been able to remain at his own home all that time . The objection , the appeal and the application for an interim measure were therefore all dismissed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4998","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2000,"docname":"SONNLEITNER v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is an NORP national , born in DATE and living in PERSON . She is represented before the Court by PERSON PERSON , a lawyer practising in PERSON .","A.","On DATE criminal proceedings were opened against the applicant and her husband , GPE , respectively , on suspicion of their having brought into circulation large amounts of narcotic drugs ( GPE grosser Mengen Suchtgift ) . On CARDINAL DATE the investigating judge discontinued the proceedings against the applicant . He noted that the applicant had denied being involved in any criminal act . As GPE had availed himself of the right not to give evidence against his wife ( PERSON ) , it was unlikely that the applicant \u2019s defence would be disproved .","On DATE the ORG convicted GPE amongst others of the above charges . In its reasoning , the court , referring to statements made by GPE , noted several times that the applicant had contributed to the commission of the offence at issue .","Having regard to the above judgment , ORG ) requested the re - opening of the proceedings against the applicant on DATE . ORG noted that GPE had previously availed himself of the right not to give evidence against his wife . His statements in the proceedings before ORG therefore constituted new evidence .","On DATE ORG ( Ratskammer ) of FAC ( PERSON f\u00fcr PERSON ) granted the re - opening request .","On DATE the applicant was arrested . Subsequently , the investigating judge ordered her detention on remand , finding that there was a suspicion of her having committed the above offence , as well as a danger of absconding . On DATE she was released on bail .","On DATE ORG ( Oberlandesgericht ) quashed the order to re - open the proceedings and referred the case back to FAC . It found that the latter should have carried out further investigations into the precise contents of GPE \u2019s statements before ORG . On DATE ORG of the Graz Regional Court again decided to re - open the proceedings . The applicant \u2019s appeal against this decision was dismissed by ORG on CARDINAL DATE . She was finally acquitted on DATE .","On DATE the applicant filed an action claiming compensation for unlawful detention under section CARDINAL \u00a7 CARDINAL ( a ) of the Compensation ( Criminal Proceedings ) Act DATE ( Strafrechtliches Entsch\u00e4digungsgesetz ) . She argued that her detention DATE and DATE had been unlawful as she had been arrested before the order to re - open the criminal proceedings had become final .","On DATE ORG granted the applicant \u2019s action , finding that she was entitled to compensation . It held that , as a general rule , arrest and detention of a suspect could lawfully be ordered even before the re - opening order became final as the appeal against it had no suspensive effect . The investigating judge was bound by the order to reopen the proceedings . Furthermore , ORG noted that , at the time the applicant \u2019s detention was ordered , there was a reasonable suspicion against her as GPE had incriminated her in the proceedings before ORG . Having regard to the sentence she risked incurring , namely one to DATE imprisonment , and to the fact that she was unemployed at that time and not well integrated in society , the court also found that at that time a danger of absconding had properly been assumed by the investigating judge . However , it followed from the decision of CARDINAL DATE that the order to re - open the proceedings had been premature and therefore unlawful . The court accordingly concluded that the applicant \u2019s detention , being based on that defective order , had likewise been unlawful .","On DATE ORG ( Oberster Gerichtshof ) allowed the appeal of ORG and dismissed the applicant \u2019s action . It noted that the order to re - open proceedings which had been discontinued meant that they were resumed at the stage of the preliminary investigation . The re - opening order served as a legal basis for the continuation of the proceedings and also for the suspect \u2019s arrest and detention , even before it became final , as the appeal against it did not have suspensive effect . The investigating judge was bound by that order and had no competence to review its lawfulness . The fact that , in the present case , the order had later been quashed by the appellate court did not retrospectively render unlawful the applicant \u2019s detention , which had duly been based on a reasonable suspicion and the danger of absconding . The decision was served on CARDINAL DATE .","B. Relevant domestic law","The relevant provisions of LAW ) , in the version in force in DATE , provided as follows :","According to section CARDINAL , ORG of the competent criminal court could , upon ORG request , re - open proceedings against a specific suspect which had been discontinued , if criminal liability for the offence had not become statute - barred and new evidence was adduced which appeared likely to lead to the suspect \u2019s conviction ( paragraph CARDINAL ) . An appeal against ORG decision could be lodged with ORG ( paragraph CARDINAL ) .","As section CARDINAL was silent on the question whether or not such an appeal had suspensive effect , the general rule laid down in CARDINAL LAW applied , namely that an appeal against the decision of ORG had no suspensive effect ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115473","languageisocode":"ENG","respondent":"IRL","branch":"ADMISSIBILITY","date":2012,"docname":"BOYCE v. IRELAND","importance":4,"conclusion":"Inadmissible","judges":"Ale\u0161 Pejchal;Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Helena J\u00e4derblom;Mark Villiger;Paul Lemmens","text":["NORP The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .","On DATE the applicant was arrested under section CARDINAL of LAW DATE on suspicion of rape of the complainant at her home in DATE . A police officer ( an officer of PERSON ) cautioned him to the effect that he was not obliged to speak but anything he might say might be given in evidence . He was taken to a police station where he was informed by the police that they had information that he had been involved in other sexual offences against the same complainant . The applicant denied any involvement in the alleged offences .","A police officer asked the applicant whether he would provide a sample of his blood and the applicant agreed . The sample was taken in the police station by a medical doctor with the consent of the applicant . The applicant was released from custody . He was then charged with CARDINAL sexual offences contrary to , inter alia , LAW DATE against the complainant . Those offences took place over a period of DATE ) while the complainant was DATE . The applicant did not dispute during his trial ( see below ) that he had provided the sample voluntarily but he argued that he had not been cautioned about the use that could be made of the sample . The trial judge found that he had been given the appropriate caution ( that he was not obliged to give any sample but that any tests carried out on the blood sample might be admitted in evidence against him ) and that he had fully understood it . It was not disputed that the sample had been taken under the common law and not pursuant to ORG Forensic Evidence ) Act , DATE ( \u201c the DATE LAW ) .","NORP In DATE he was re - arrested and returned for trial before ORG ( \u201c ORG \u201d ) . His trial began on DATE .","The trial judge tried , as a preliminary issue in the absence of the jury , the admissibility of the DNA evidence drawn from the blood sample . The applicant had argued that he had not been properly cautioned and that the sample had been unlawfully taken because the common law power , on which the police relied , had been ousted by LAW . The trial judge heard oral evidence from relevant police officers , the applicant and the relevant doctor : the trial judge found that the applicant had been cautioned by the police ( that he was not required to provide a sample but that , if he did so , the sample could be analysed and the results admitted against him at trial ) and that he had understood the caution . The trial judge noted that , having given a sample , the applicant had then signed a statement , after he had consulted his solicitor , in which he accepted that he had volunteered the sample after such a caution . The trial judge concluded that he had been properly cautioned prior to giving the sample . He also found that the common law power to obtain a blood sample remained and co - existed alongside that of LAW so that the common law was a valid legal basis for the taking of the voluntary blood sample . The trial judge , in his ruling admitting the evidence , did so principally on the basis of section CARDINAL(CARDINAL ) of the DATE Act : it stated that the powers conferred on the police under LAW were without prejudice to other powers exercised by them which meant that the power of the police to invite persons to voluntarily provide a blood sample applied in this case and was unaffected by the provisions of LAW .","The complainant did not identify the applicant in her evidence but stated that the offences had been committed by the same man since , inter alia , the perpetrator referred to earlier incidents when later assaulting her . The DNA evidence was key : the prosecution \u2019s case was that the DNA evidence linked the applicant to CARDINAL of the offences ( DATE and DATE ) and , if the jury were to find that the DNA evidence established his guilt for those CARDINAL offences , it was also entitled to conclude that the same person committed all or any one of the other offences . The trial ended on DATE when the applicant was convicted by jury on CARDINAL counts of rape , attempted rape , indecent assault or sexual assault from DATE . In DATE he was sentenced to concurrent terms of CARDINAL years\u2019 imprisonment .","On DATE the applicant applied for leave to appeal to the ORG mainly contesting the lawfulness of the blood sample arguing that the only lawful basis for it being obtained , retained and used was LAW . Of the CARDINAL grounds of appeal , the first and last referred to the applicant \u2019s constitutional rights : that the trial judge had erred in finding that the sample had been lawfully taken under the common law and thus failed to vindicate his constitutional right to bodily integrity ; and that the police had failed to inform the applicant that his sample would be used to investigate offences other than that relating to DATE contrary to his rights to bodily integrity , to privacy , not to incriminate himself and to fair procedures .","His appeal to the ORG was heard on CARDINAL and DATE . Further submissions were requested and filed in DATE . On DATE he was released from prison .","By judgment of DATE the ORG rejected his appeal . It reviewed in some detail and confirmed the trial court \u2019s factual findings as regards , inter alia , the caution given to the applicant prior to giving the sample . It also underlined the legality under the common law of collecting forensic evidence on a voluntary basis from person in custody :","\u201c While the conduct of criminal investigations by the [ police ] must be carried out within the ambit of the law and in accordance with the law , many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute . The interviewing and taking of statements from witnesses to a crime , the entry upon the scene of a crime , its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned . ... An example would be where a householder permits a [ police officer ] to enter or enter and search premises without the need for a search warrant .","Cooperating citizens may willingly provide the [ police ] with forensic evidence such as fingerprints , clothing or blood samples to assist them in their inquiries . A rape victim may willingly provide a sample of pubic hair so that the [ police ] may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which , if matched , may implicate a suspect . Of course the gathering of such evidence and its use at a criminal trial from persons , who at the trial have the status of witnesses rather than that of an accused , is rarely a source of controversy . ... Inevitably , ... the obtaining of forensic evidence from persons in custody may often be a source of legal controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature . ... It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided that it was obtained voluntarily and with the full consent of the person in custody . Provided consent is fully and voluntarily given and the person in custody is of full age and not otherwise suffering from any legal or other incapacity , they may give a forensic sample , including in response to a [ police ] PERSON request , and the [ police ] may take it or receive it . That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent , as such , on the existence of express statutory powers to collect such voluntarily provided forensic evidence . In short , it is not unlawful to take voluntarily provided forensic samples from persons in custody . ...","It would indeed be extraordinary if [ parliament ] contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the [ police ] which was lawful before the passing of the LAW should be considered unlawful after the passing of the LAW without any express provision to that effect , even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused . \u201d","The ORG went on to find that LAW created a statutory regime distinct from the common law and , further , that that regime did not have the effect of abolishing the existing common law power . Both legal bases , statutory and common law , subsisted . LAW extended existing law ; it did not abrogate it . The DNA evidence , drawn from the sample taken under the common law , was admissible . Finally , the ORG did not consider tenable the factual presumption underlying the CARDINALst ground of appeal because the applicant had never disputed that he had given the sample voluntarily and it was the uncontested evidence of the prosecution that the police had informed him that they were investigating , not only a sexual offence committed against the complainant in DATE , but also his involment in other sexual offences against her .","By perfected order ( not submitted ) of the ORG of CARDINAL DATE , the ORG gave leave to appeal pursuant to LAW DATE on a point of law of general public importance desirable in the public interest to be examined by ORG . ORG judgments recorded the text of the question certified by the ORG as follows :","\u201c Is it lawful for a member of ORG , when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis , to do so without having invoked the provisions of LAW ( LAW , DATE ? \u201d","By Notice of Motion dated DATE ( grounded upon an affidavit of the same date and a Notice of Appeal dated DATE ) , the applicant requested , pursuant to section CARDINAL of ORG ( LAW DATE , leave to add CARDINAL grounds of appeal for ORG consideration . The first CARDINAL and last grounds read as follows :","\u201c CARDINAL . That ORG erred in law or erred on a question of mixed fact and law in holding that LAW of the [ CARDINAL LAW ] did not preclude [ the police ] from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said LAW and that the said section of LAW was designed to enable [ the police ] to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal , and that the neglect , failure or refusal by the [ police ] to take the said sample under the aegis of the said LAW was ultra vires , contrary to LAW Article CARDINAL.CARDINAL.CARDINAL and CARDINAL of the LAW .","That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence , that it was lawfully taken and\/or did not require to be taken pursuant to ORG Forensic Evidence ) Act DATE , and thereby failed to vindicate the Accused \u2019s Constitutional Rights to his bodily integrity . ...","On DATE ORG rejected ( by a majority ) the appeal . All judges agreed that it had been long accepted that the police could , under the common law , obtain information and samples from a person so long as that person \u2019s consent was given voluntarily . Indeed , even the judge who dissented on the question of the effect of the DATE Act noted that the applicant had accepted that there had been a power to take samples by consent under the common law , he referred to the ORG judgment on the issue cited at paragraph CARDINAL above and he added :","\u201c CARDINAL . Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual , though these are personal rights which enjoy constitutional protection , prevents individuals from agreeing to provide access to the CARDINAL and samples from the other . Most citizens will perceive it as their duty to assist in the investigation of crime . Many will wish to eliminate themselves from suspicion ; many others will wish to assist in finding the perpetrator of a crime . Where evidence is thus freely and voluntarily provided by a person at liberty , no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject - matter of evidence at a criminal trial against the provider . \u201d","ORG found that the DATE Act did not deprive the police of their ability to take samples under the common law since both the statutory and common law schemes for taking samples co - existed . It was satisfied that the matter in issue was not the application of a policy of ORG ( \u201c ORG \u201d ) , ( whereby he had advised that , after the coming into force of the LAW , the police could still take samples that were provided voluntarily and on consent ) or whether that policy was appropriate or not . Rather , the matter in issue was a question of law . The advice of the ORG was an interpretation of LAW . The issue was whether that interpretation was correct . ORG conducted a detailed construction of the DATE Act in order to ascertain the intention of the legislature . It noted that the common law approach to obtaining information by consent was well established . It was a fundamental aspect of the approach to investigating crime . It was a practical approach . Any alteration to such a fundamental aspect of criminal investigation would require a clear expression of an intention to change . No such approach was apparent from the words of the LAW .","It further noted that section CARDINAL(CARDINAL ) of LAW expressly stated that the powers conferred by that section were without prejudice to any other powers exercisable by a member of ORG : it thereby expressly retained powers of ORG . ORG went on to note the detrimental consequences to a \u2018 person\u2019 under LAW and it gave , as an example , the \u2018 inference\u2019 which might be raised at the trial , and upon which a jury might rely for corroboration . There was also the possibility of the offence of obstruction under section CARDINAL(CARDINAL ) of LAW . No such detrimental consequences arose under the common law . Therefore it considered that to apply the statutory scheme in the absence of a clear mandatory requirement under statute would be a step too far . ORG was satisfied that the ORG did not intend to exclude the common law when it passed LAW and that the common law might also be applied to a person detained or in prison as referred to in LAW .","Finally , ORG noted CARDINAL other grounds of appeal ( Nos . CARDINAL and DATE ) which the applicant \u2019s counsel had highlighted in his oral submissions and which it rejected .","One judge dissented on the effect of LAW and considered that , when a person was in custody , it would be absurd , \u201c inconsistent and potentially unfair \u201d to ignore the statutory regime which he considered the Government to have intended would apply in such circumstances . He regarded the first CARDINAL grounds of the applicant \u2019s appeal as concerning the question of the \u201c admissibility of the evidence \u201d . He found that the failure to apply the CARDINAL LAW was not an interference with the constitutional rights of the applicant since he had freely agreed to provide a sample of his blood . He also considered that this failure to follow the statutory regime did not impact on the admissibility of the DNA evidence : while the blood sample had been obtained unlawfully , it had led to the production of objective material evidence linking the applicant to the offences so that \u201c no breach of a constitutional right was involved \u201d .","The LAW","Article CARDINAL concerns the constitution and powers of ORG ( the ORG ) and , in so far as relevant , provides as follows :","\u201c CARDINAL.CARDINAL The sole and exclusive power of making laws for the ORG is hereby vested in the ORG : no other legislative authority has power to make laws for the ORG . \u201d","Article CARDINAL is entitled \u201c Personal Rights \u201d and , in so far as relevant , reads as follows :","\u201c CARDINAL The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .","CARDINAL The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name , and property rights of every citizen . \u201d","Section CARDINAL(CARDINAL ) of the DATE LAW as follows :","\u201c Where a member of the Garda S\u00edoch\u00e1na arrests without warrant a person whom he , with reasonable cause , suspects of having committed an offence to which this section applies , that person may be taken to and detained in a Garda ORG station for such period as is authorised by this section if the member of ORG in charge of the station to which he is taken on arrest has at the time of that person \u2019s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence . \u201d","The police may obtain samples on a voluntary basis from persons in custody under the common law . There are no specific rules laid which regulate the taking , use , retention or destruction of such samples . No inferences may be drawn from a refusal to provide a sample .","The DATE Act also permits the taking of samples from persons in custody . It provides for authorisation to request samples on a consent basis , it allows the drawing of inferences in case of a refusal and it governs the use of samples pre - trial and post - trial including destruction .","NORP In DATE a circular of ORG ( \u201c ORG \u201d ) advised that , after the coming into force of LAW , the police could still take samples that were provided voluntarily and on consent . If consent was obtained , the sample was taken under common law rules . If the person refused , a written consent was requested . If obtained , the sample was taken under LAW and , if refused , the provisions of LAW on negative inferences could come into play .","The long title to the DATE LAW states it to be \u201c An LAW to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences \u201d . It came into force on DATE and it applies only to persons in custody under LAW and under LAW .","Section CARDINAL provides the primary power to take samples :","\u201c ( CARDINAL ) Subject to the provisions of subsections ( CARDINAL ) to ( CARDINAL) ... , where a person is in custody ... , a member of ORG may take , or cause to be taken , from that person for the purpose of forensic testing all or any of the following samples , namely -","( a ) a sample of -","( i ) blood , ...","( CARDINAL ) A sample may be taken under this section only if -","( a ) a member of ORG not below the rank of superintendent authorises it to be taken , and","( b ) in the case of a sample mentioned in subparagraph ( i ) , ... of paragraph ( a ) of subsection ( CARDINAL ) of this section ... the appropriate consent has been given in writing . ...","( CARDINAL ) Before a member of ORG takes , or causes to be taken , a sample under subsection ( CARDINAL ) of this section , or seeks the consent of the person from whom the sample is required to the taking of such a sample , the member shall inform the person-","( a ) of the nature of the offence in which it is suspected that that person has been involved ,","( b ) that an authorisation has been given under subsection ( CARDINAL)(a ) of this section and of the grounds on which it has been given , and","( c ) that the results of any tests on the sample may be given in evidence in any proceedings . ...","( CARDINAL ) The powers conferred by this section are without prejudice to any other powers exercisable by a member of ORG . \u201d","According to LAW , where consent required under LAW is refused without good cause following an appropriate caution , then a trial court may draw inferences from that refusal and the refusal with such inferences can amount to corroboration of any evidence in relation to which the refusal is material . LAW provides for the destruction of records and samples where proceedings are not instituted within DATE of taking the sample or where the person is acquitted or discharged or the proceedings are discontinued ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-73073","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2006,"docname":"JOCKS v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . DATE he worked as a judge at ORG ( Amtsgericht ) .","On DATE ORG issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed CARDINAL criminal offences , including CARDINAL counts of fraud , CARDINAL count of instigation to falsification of official records , CARDINAL count of bodily injury , CARDINAL count of perversion of justice in connection with judicial bribery , CARDINAL count of illegal arms trade and CARDINAL counts of having failed to pay contributions to the social security on behalf of a company \u2019s employees . According to the preliminary investigations , the applicant was suspected of having been involved in a number of fraudulent real - estate transactions . He was further suspected of having , in his capacity as a ORG Judge , unlawfully released CARDINAL of his suspected co - offenders from detention on remand .","On DATE the applicant was arrested and subsequently detained on remand .","On DATE ORG brought an indictment against the applicant , which had an overall length of CARDINAL pages .","The hearing before ORG began on DATE and ended on DATE . During that time , the trial took place on DATE during which numerous witnesses were heard .","On DATE and DATE , DATE , DATE and DATE and DATE ORG upheld the arrest warrant and ordered the applicant \u2019s continued detention on remand .","On DATE , DATE , DATE and DATE , DATE and DATE and DATE the Schleswig - Holstein Court of Appeal ( Oberlandesgericht ) rejected the applicant \u2019s complaints against the continuation of his detention on remand .","On DATE , in a reasoned decision of a total length of CARDINAL pages , ORG found that the preliminary examination had confirmed a strong suspicion against the applicant . This assessment had been based on numerous witness statements , which were corroborated by numerous documents and further circumstantial evidence .","ORG considered that there was a risk of collusion ( GPE ) within the meaning of section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung , see relevant domestic law below ) , on the ground that if the applicant was released , he might try to influence other accomplices or witnesses . This was corroborated by the strong suspicion that the applicant had , in the past , built up a smoke screen which was aimed at preventing possible controls by hiding the real facts . The applicant was suspected of having employed a front man ( ORG ) in order to disguise his own role in the real estate business . According to the results of the preliminary investigations , there was specific evidence that the applicant and his co - offenders had , in the past , intimidated both business partners and accomplices by use of threats and violence . There were further indications that the applicant had influenced witnesses before his arrest .","On DATE ORG ordered the applicant \u2019s continued detention . It found that the reasons to suspect him of the alleged crimes , as laid down in the arrest warrant , persisted . While the risk of collusion did not persist , as the evidence was sufficiently secured by ORG preliminary investigations , there was the danger of the applicant \u2019s absconding . In case of his conviction , the applicant would have to face a severe prison sentence . Furthermore , he had been disallowed part of his income in disciplinary proceedings . In case of his conviction he would risk removal from office and the loss of his pension claims , which would mean the destruction of his social , professional and economical basis . As the applicant \u2019s children were already grown up , his social bonds were not of such a weight as to prevent him from absconding . On the other hand , the applicant had declared that his wife possessed considerable property . Under these circumstances , there was no less intrusive measure possible to prevent the applicant from absconding than the further continuation of his detention on remand .","Also on DATE , ORG ordered the continuation of the detention on remand . Referring to its earlier decision of DATE , that court found that the risk of collusion persisted . It further found that the duration of the detention was justified by the exceptional extent of the investigations .","On DATE ORG rejected the applicant \u2019s fresh complaint against his continued detention . Referring to its decision of DATE and examining the new arguments put forward by the applicant , it found that the grounds of suspicion against the applicant persisted . ORG further maintained that the danger of collusion persisted , as the raising of evidence before ORG had not yet considerably advanced .","Furthermore , the danger of absconding persisted , as the applicant tried to evade the proceedings by rendering himself unfit to plead . In this respect , ORG referred to the Public Prosecutors submissions of DATE , which read as follows :","\u201c In this respect the Chamber [ of ORG ] has rightly pointed out that the accused , on DATE , had rendered himself unfit to plead and that he , on another occasion , refused to take his medication , which led to similar results . Furthermore , the ORG could take into consideration that the accused \u2019s and his lawyer \u2019s behaviour did not give the impression that the accused was interested in a swift termination of the proceedings . This is confirmed by the fact that , during DATE of hearings , the accused respectively his lawyer had lodged a total of CARDINAL motions for bias against the court , which have so far all been rejected as being unfounded . It is therefore acceptable if the ORG deduces that there is the concrete danger that the accused would try to render himself unfit to plead if he were released from the supervision of detention on remand ... \u201d","ORG followed these submissions .","On DATE the applicant submitted a medical attestation according to which it was indicated to discontinue treatment with antidepressant medicine , as his state of health had stabilised and requested , once again , to be released from detention .","On DATE ORG rejected the applicant \u2019s fresh request inter alia for the following reasons :","\u201c As the ORG has just pointed out in its decision of DATE on the applicant \u2019s CARDINAL motion for bias , the accused and his defendants pursue a procedural strategy which is primarily aimed at obstructing the proceedings . Accordingly , the ORG continues to expect that the applicant , if released , would do everything to evade the proceedings . It is obvious that such can not only be done by overdosing or refusing prescribed medication . Accordingly , the medical attestation ... was not fit to disprove the ORG \u2019s expectations . The danger that the accused would abscond from the proceedings had been further increased by the fact that the evidence presented so far has not yielded any facts in the applicant \u2019s favour ... \u201d","In his complaint , the applicant contested that he had put himself into a state of being unfit to plead and that there had not been any evidence in his favour . Furthermore , ORG had failed sufficiently to expedite the proceedings .","On DATE ORG rejected the applicant \u2019s complaint . Referring to its former decisions and examining the new arguments put forward by the applicant , that court confirmed that a strong suspicion against the applicant persisted and that there remained the risk of the applicant \u2019s absconding and of collusion . With regard to the conduct of ORG , ORG found as follows :","\u201c There is no indication that ORG failed sufficiently to expedite the proceedings , as prescribed by LAW sentence CARDINAL of the Convention . The latter provides that a detained person is entitled to trial within a reasonable time . As ORG correctly pointed out , the proposed dates for hearings could not be used because either the accused or his counsel were unable to attend . \u201d","On DATE the applicant lodged a further complaint against the arrest warrant , alleging , inter alia , that ORG had failed sufficiently to expedite the proceedings . He complained , in particular , that CARDINAL dates for hearings had been cancelled because of a judge \u2019s holidays and a lay judge \u2019s attendance of a funeral .","On DATE ORG rejected the complaint , pointing out that the cancellation of the hearings had been justified and that the ORG had offered alternative dates for hearings , which could not take place as the accused \u2019s counsel had been unable to attend .","On DATE ORG confirmed ORG decision .","On DATE the applicant lodged a further request to quash the arrest warrant . Referring to the ORG \u2019s judgment in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL\/CARDINAL , ORG CARDINALXI ) , the applicant maintained that only compelling reasons could justify his detention on remand for a period of DATE . According to the applicant \u2019s allegations , the domestic courts had failed to conduct the proceedings with due diligence .","The applicant maintained that there had never been a strong suspicion against him . Furthermore , there had never been facts confirming a risk of collusion . He further maintained that there had not been any danger of his absconding , as he entertained close contacts to his wife and to his CARDINAL grown - up children . He pointed out that he had at no occasion attempted to evade . Finally , the applicant maintained that ORG had failed to hold hearings at all available dates . In this respect , he pointed out that the chamber had heard another criminal case on DATE from DATE to DATE .","On DATE ORG rejected the applicant \u2019s motion . It found , first , that there existed the risk that the applicant might attempt to make himself unfit to plead by abuse of medication . In this respect , ORG stated that the applicant \u2019s medical condition on DATE had necessitated extensive medical treatment in order to restore his fitness to plead . A blood examination had revealed a toxic overdose of medication . The strong suspicion against the applicant had been confirmed by the evidence taken .","With respect to the applicant \u2019s complaint about an alleged lack of diligence , ORG pointed out that , until DATE , it had held hearings on DATE . The parallel proceedings had been conducted with a partially differing composition of the ORG .","ORG further maintained that the applicant had delayed the taking of evidence . A large part of the length of the proceedings was imputable to the applicant \u2019s own conduct .","On DATE the ORG rejected the applicant \u2019s complaint . Referring to ORG comments in the complaint proceedings and to its previous decisions of CARDINAL DATE , DATE and DATE , DATE and DATE , ORG confirmed that the strong suspicion that the applicant had committed the offences he was accused of persisted and that he was likely to tamper with evidence or abscond if released . With regard to the applicant \u2019s complaint under LAW , ORG found that the domestic authorities had displayed special diligence given the complexity of the case . They had expedited the investigations following the applicant \u2019s arrest in DATE and continuously held hearings in the applicant \u2019s case since DATE . The chamber had generally held hearings at DATE . There was no indication that ORG could have considerably expedited the proceedings .","ORG finally found the applicant \u2019s continued detention to be proportionate , given both the conviction the applicant was likely to face and the general interest in the integrity of the judicial system .","On DATE ORG refused to admit the applicant \u2019s constitutional complaint for lack of prospect of success .","On DATE the further execution of the arrest warrant was suspended ( GPE ) and the applicant released .","On DATE the applicant , who was at that time detained on remand , wrote a letter to the journalist PERSON He alleged that a prosecution witness had stated during a public hearing that he had been induced by ORG to give false evidence against the applicant . In return , ORG had discontinued prosecution in CARDINAL criminal proceedings directed against that witness . The applicant added that ORG actions had been unfair ( \u201c unlautere NORP \u201d ) .","On DATE , the applicant wrote another letter to the journalist PERSON in which he repeated his allegations . He added that ORG had refused to hear the respective witness on these allegations .","On DATE ORG ordered under LAW of LAW in conjunction with rule CARDINAL \u00a7 CARDINAL , no . CARDINAL , of the Rules on the Execution of Detention on Remand ( Untersuchungshaftvollzugsordnung , see relevant domestic law below ) that the CARDINAL letters should not be delivered , but returned to the applicant . It found that both letters contained allegations of prosecution of innocent persons and defamatory statements directed against ORG and DATE with respect to the second letter DATE also against ORG .","On DATE the applicant lodged a complaint . He maintained , in particular , that his allegations had been true .","On DATE the ORG rejected the applicant \u2019s complaint . It found that the content of the letters had been designed to jeopardise the purpose of detention on remand ( section QUANTITY of LAW ) , as the applicant had accused ORG of having employed illegal means . The transmission of the letters was also apt to disturb the prison order , as it could set an example for other prisoners . ORG further pointed out that it was not established that the applicant \u2019s allegation had been true . The applicant was in a position to pursue his interests by the means provided to him in the criminal proceedings .","On DATE ORG refused to admit the applicant \u2019s complaint .","On DATE ORG sentenced the applicant to DATE and QUANTITY months\u2019 imprisonment .","The admissibility of detention on remand is governed by LAW ) , the relevant provisions of which read as follows :","Section CARDINAL","\u201c ( CARDINAL ) Detention on remand may be ordered against the accused if he is strongly suspected of the offence and if there is a ground for arrest . It may not be ordered if it is disproportionate to the significance of the case or to the penalty ... likely to be imposed .","( CARDINAL ) A ground for arrest shall exist if on the basis of certain facts :","it is established that the accused has fled or is hiding ;","considering the circumstances of the individual case , there is a risk that the accused will evade the criminal proceedings ( risk of flight ) ; or","the accused \u2019s conduct gives rise to the strong suspicion that he will","a ) destroy , alter , remove , suppress , or falsify evidence ,","b ) improperly influence co - accused , witnesses , or experts , or","c ) cause others to do so ,","and if , therefore , the danger exists that establishment of the truth will be made more difficult ( risk of collusion , GPE ) .","... \u201d","Section CARDINAL","\u201c ...","( CARDINAL ) Only such restrictions may be imposed on the arrested person as are required by the purpose of detention on remand or by the need for order in the prison .","... \u201d","Rule CARDINAL \u00a7 CARDINAL of the Rules on ORG ) provides that a judge is entitled to stop a letter , if the delivery of that letter is suited to jeopardise the prison order . According to rule CARDINAL \u00a7 CARDINAL , no . CARDINAL , this can inter alia be the case if the delivery of the letter \u2013 in the knowledge of its content - would constitute an offence ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91479","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2009,"docname":"CASE OF DACIA S.R.L. v. MOLDOVA","importance":3,"conclusion":"Pecuniary and non-pecuniary damage - award","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , PERSON , is a company incorporated under the laws of GPE .","In DATE the Moldovan Parliament enacted legislation for the privatisation of certain items of ORG property , including the \u201c LOC \u201d hotel . On DATE the applicant company was declared the successful bidder in the auction held for the sale of the hotel . It paid CARDINAL Moldovan lei ( MDL ) ( MONEY at the time ) . On DATE the applicant company purchased from the PERSON municipality the QUANTITY of land on which the hotel was situated , for MDL CARDINAL ( CARDINAL ( ORG ) at the time ) .","According to the applicant company , in DATE following the purchase of the hotel large sums of money were spent on its renovation and the purchase of new furnishings and equipment .","On DATE ORG initiated court proceedings , seeking the annulment of the hotel \u2019s privatisation and repayment to the applicant company of the price paid . On DATE ORG accepted ORG request and annulled the privatisation of the hotel . The court ordered the return of MDL CARDINAL to the applicant company and the return of the hotel to the ORG .","The applicant company \u2019s appeal was left without examination by ORG on DATE because of a failure to pay court fees in full .","In separate proceedings , which ended with a judgment of ORG on DATE , the sale of the land underlying the hotel was also annulled .","The judgment of DATE was fully enforced in instalments in the period DATE and DATE . The sum of MDL CARDINAL was the equivalent of approximately EUR CARDINAL in DATE .","NORP The applicant company initiated court proceedings against the Government , claiming compensation for damage caused to it as a bona fide buyer of the hotel . It paid MDL CARDINAL in court fees . On DATE ORG rejected these claims . On DATE ORG dismissed the applicant company \u2019s request for a court fee waiver owing to its inability to pay . It informed the applicant company that the appeal could not be examined on account of the failure to pay the court fees in full . The new time - limit for paying the court fees was DATE ; the applicant company did not meet this deadline .","ORG The applicant company hired an expert to make a valuation of the current market price of the hotel and underlying land . The expert explained that he was able to make the valuation only if he had access to the hotel itself and all its documents , including documents from the ORG - controlled real - estate register . Since the hotel is currently owned by the ORG , on DATE the applicant company sought the assistance of ORG office in ensuring the expert \u2019s access to the hotel and the relevant documents . In a letter dated DATE ORG informed the applicant company that it should contact the hotel \u2019s administration and the real - estate registry .","On DATE the applicant company asked the hotel \u2019s administration to allow the expert access to the hotel . In another letter on DATE , the applicant company asked the real - estate registry to allow its expert access to the relevant documents . In a letter dated DATE the hotel \u2019s administration informed the applicant company that permission from the Government was necessary in order to ensure access to the hotel . In a letter dated CARDINAL DATE the real - estate registry informed the applicant company that it was not authorised to grant access to the requested documents , since it \u201c did not offer such a service \u201d .","On DATE ORG made an attachment order , prohibiting the disposal of the hotel . On DATE , the applicant company asked the Government to allow its expert access to the hotel . It received no answer . On DATE the applicant company informed ORG about the situation and asked for his assistance in obtaining access to the hotel and the relevant documents . It also noted that the refusal to grant such access might be considered as a violation of its rights guaranteed by LAW . The applicant company did not receive a reply to this letter .","On DATE the applicant company lodged with ORG a request for the annulment of the judgment of DATE and subsequent related judgments against it , referring to the principal judgment as a ground for its request . The applicant company also sought the attachment of the hotel \u2019s building , land and bank accounts pending examination of its request .","At the first hearing of DATE the parties were informed of a postponement of the hearing until DATE in view of a request by ORG . The applicant company asked for a copy of the request , which was refused . It then asked for access to the case - file and found no request from ORG , who had not been a party to any of the domestic proceedings in DATE and DATE .","Before the hearing of DATE , CARDINAL of the judges on the bench of ORG examining the case was replaced by another judge . During that hearing the Government ( plaintiff in the original domestic proceedings and current owner of the \u201c FAC \u201d hotel ) submitted its response to the applicant company \u2019s request of DATE . They considered , in particular , that awarding the applicant company compensation in the amount of EUR CARDINAL,CARDINAL.CARDINAL would constitute sufficient just satisfaction within the meaning of LAW .","Before the next hearing on DATE CARDINAL judges on the bench of ORG examining the case were replaced by other judges . The examination of the case started anew . On DATE the applicant company \u2019s lawyer examined the case file in order to determine the reasons for the CARDINAL replacements of judges in the case . He found no such explanation .","On DATE ORG annulled the judgments of DATE and DATE and of CARDINAL DATE against the applicant company ( see the facts of the principal judgment for more details ) , and ordered a full re - hearing by ORG . The proceedings are still pending before that court .","On DATE the ORG asked the parties to submit additional observations by DATE , limited to the issue of the value of the FAC hotel , and directed the Government to allow the applicant company access to the hotel and its documents . The applicant company \u2019s expert was then given access to the hotel and its documents .","The valuation submitted by the applicant company on DATE was prepared by an expert with CARDINAL years\u2019 experience in intellectual property and business valuation and comprised CARDINAL pages and a number of annexes . The final value of the hotel ( MDL CARDINAL , approximately ORG CARDINAL ) was calculated by using CARDINAL separate methods of valuation .","On DATE the Government asked for an extension until DATE of the time - limit for submitting their valuation . However , they did not submit any observations by that date . They sent a \u201c preliminary report \u201d on DATE on the value of the FAC hotel . According to that \u201c preliminary report \u201d , made on DATE , the hotel was worth MDL CARDINAL ( EUR CARDINAL ) . The \u201c preliminary report \u201d included CARDINAL pages , CARDINAL of which were copies of licences held by the valuer , CARDINAL page listed the \u201c conditions and disclaimers \u201d concerning the limits of the valuer \u2019s liability and another described the name and address of the FAC hotel and the amount at which it had been valued . No calculations were included . At the date adoption of its judgment , the ORG had not received the final report of the valuer hired by the Government .","Article CARDINAL of the Civil Code reads :","\u201c ( CARDINAL ) Default interest is payable for delayed execution of pecuniary obligations . Default interest shall be PERCENT above the interest rate provided for in LAW refinancing interest rate ] unless the law or the contract provides otherwise . Proof that less damage has been incurred shall be admissible .","( CARDINAL ) NORP In non consumer - related situations default interest shall be PERCENT above the interest rate provided for in LAW unless the law or the contract provides otherwise . Proof that less damage has been incurred shall be inadmissible . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76143","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2006,"docname":"CASE OF POCUCA v. CROATIA","importance":3,"conclusion":"Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in PERSON . He is a pensioner .","The applicant submitted that his pension had been regularly adjusted in line with the increase in wages according to LAW ( Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja , ORG no . CARDINAL of CARDINAL DATE ) .","On DATE LAW and Other Benefits from Pension and Invalidity Insurance Funds and on ORG Funds ( ORG o uskla\u0111ivanju mirovina i drugih nov\u010danih primanja iz mirovinskog i invalidskog osiguranja , te upravljanju fondovima mirovinskog i invalidskog osiguranja , ORG no . CARDINAL of DATE \u2013 \u201c LAW \u201d ) entered into force , derogating , inter alia , LAW . LAW of the new law provided that the pensions were to be adjusted in line with the increase in living expenses .","On CARDINAL DATE the ORG quashed certain provisions , including section CARDINAL , of the aforementioned DATE legislation as unconstitutional . The Government submitted that , as a result thereof , CARDINAL applications had been filed with ORG regional offices by those seeking adjustment of their pensions in accordance with ORG decision , that is , in line with the increase in wages .","On DATE the applicant applied to ORG , ORG seeking adjustment of his pension for the period DATE .","Since ORG did not render a decision within the statutory time - limit of DATE , on CARDINAL DATE the applicant lodged an appeal for failure to respond ( see paragraph CARDINAL below ) with ORG , ORG as if his request had been denied .","Given that ORG also failed to decide on this appeal within the statutory time - limit of DATE , on CARDINAL DATE the applicant brought an action for failure to respond ( see paragraph CARDINAL below ) with ORG ( Upravni sud PERSON ) under LAW .","On DATE the Pensions Increase Act ( Zakon o pove\u0107anju mirovina radi otklanjanja razlika u razini mirovina ostvarenih u razli\u010ditim razdobljima , Official Gazette no . CARDINAL of DATE ) entered into force . Stating as its aim the implementation of ORG decision , the LAW increased the pensions of those retired before DATE . On DATE ORG refused to institute proceedings for abstract constitutional review of the LAW .","On DATE ORG adopted a judgment ordering ORG to decide on the applicant \u2019s appeal within DATE . It also instructed ORG to adjust the applicant \u2019s pension for the period DATE in line with the increase in wages , pursuant to the section CARDINAL of the DATE LAW , but also taking into consideration the increase already provided by LAW .","On DATE the applicant lodged a constitutional complaint challenging ORG judgment and complaining about the length of the proceedings . He argued that the court had instructed ORG wrongfully . He also alleged that ORG and ORG had failed to decide on his case within a reasonable time .","On DATE ORG declared the applicant \u2019s complaint inadmissible . In respect of ORG judgment , it found the complaint premature since the administrative proceedings were still pending . In respect of the length of the proceedings , it held that the applicant had lodged the constitutional complaint when the case had already been decided ; however that remedy could only be used while the proceedings before ORG were still pending .","Meanwhile , following the judgment of ORG of DATE , on DATE ORG ordered ORG to issue a decision in the applicant \u2019s case .","On DATE ORG dismissed the applicant \u2019s request . It held that it was not possible to adjust the applicant \u2019s pension for the period and in the manner indicated by ORG since no subordinate legislation had been adopted enabling the ORG to calculate the exact amount of the applicant \u2019s pension for that period in line with increase of wages . In any event , the applicant \u2019s pension had been increased by LAW , which had fully implemented ORG decision of CARDINAL DATE . The applicant appealed .","On DATE ORG dismissed the appeal .","On DATE the applicant brought an action with ORG challenging the decision of ORG .","On DATE the Act on the Implementation of the Constitutional Court \u2019s Decision of CARDINAL DATE ( Zakon o provo\u0111enju odluke PERSON CARDINAL . svibnja DATE . , ORG no . CARDINAL of DATE \u2013 \u201c the LAW \u201d ) entered into force . LAW provides that retired persons whose pensions were reduced in the period DATE and DATE ( \u201c the pensioners \u201d ) have a right to compensation calculated as a difference between the pension to which they had been entitled and the pension actually received during that period , taking into account the increases provided by LAW . The compensation was to be obtained through a special fund that was to be established by subsequent legislation .","On DATE LAW ( Zakon o umirovljeni\u010dkom fondu , ORG no . CARDINAL of DATE ) entered into force . The LAW provides that each pensioner has a right to a share in the ORG depending on the amount of compensation he or she is entitled to . In particular , CARDINAL ) provides that pensioners , who had already been compensated on the basis of a final and enforceable court decision , are not entitled to compensation from ORG . Section CARDINAL ) provides that pensioners involved in pending administrative proceedings , instituted with a view to obtaining compensation ( adjustment of their pensions ) , shall obtain that compensation pursuant to LAW .","On DATE the ORG gave judgment dismissing the applicant \u2019s claim . It found that the applicant actually retired under a special statute regulating the pensions of military personnel and that therefore ORG decision of CARDINAL DATE had not mandated the increase of his pension . This had been confirmed by the subsequent legislation ( see paragraphs CARDINAL , DATE and DATE above ) implementing that decision . In any event , the legal gap that had followed the decision of ORG had been overcome by that legislation . Therefore , the applicant \u2019s claim for the adjustment of his pension would have already been satisfied by increases provided therein . The judgment was served on the applicant on DATE .","On DATE the applicant lodged a constitutional complaint with ORG against that judgment . The proceedings are currently pending before that court .","DATE ( Ustav Republike Hrvatske , ORG no . CARDINAL of DATE ) reads as follows :","\u201c In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . \u201d","NORP The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE \u2013 \u201c LAW \u201d ) reads as follows :","\u201c ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual \u2019s rights and obligations or a criminal charge against him or her within a reasonable time ...","( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...","( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . \u201d","The relevant provisions of LAW ( Zakon o op\u0107em upravnom postupku , ORG no . CARDINAL of CARDINAL DATE ) provide as follows :","Section CARDINAL(CARDINAL ) provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative authority shall give a decision and serve it on a party within DATE following the submission of an application . In all other , more complex cases , the authority shall give a decision and serve it on a party within DATE .","Section PERSON ) provides that a party whose application has not been decided and served within the time - limits set out in paragraph ( CARDINAL ) may lodge an appeal ( appeal for failure to respond , \u017ealba zbog \u0161utnje administracije ) as if his or her application had been dismissed .","Section CARDINAL ) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within DATE following the submission of the appeal .","Section CARDINAL ) provides that the second - instance administrative authority deciding on the appeal for failure to respond shall request the first - instance authority to give reasons for its omission . If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified , the second - instance authority shall order the first - instance authority to give a decision within DATE . If it finds that the omission was not justified , it shall request the case - file .","Section CARDINAL(CARDINAL ) provides that if the case - file contains sufficient information , the second - instance administrative authority shall decide the case . Otherwise , it shall first hear the case and take evidence , and then give a decision . Exceptionally , if it considers that such a procedure would save time and costs , it shall order the first - instance authority to hear the case and take evidence within a specified time - limit , whereupon it shall decide the case itself . Such a decision shall be final .","The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL\/CARDINAL , DATE and CARDINAL ) provide as follows :","Section CARDINAL ) provides that if the appellate authority fails to give a decision on a party \u2019s appeal against the first - instance decision within DATE , and fails to do so upon a repeated request within a further period of DATE , the party may bring an action in ORG ( action for failure to respond , tu\u017eba zbog \u0161utnje administracije ) , as if his or her appeal had been dismissed .","Section PERSON ) provides that when the first - instance administrative authority fails to give a decision against which no appeal lies , the party may directly bring an action in ORG .","Section CARDINAL(CARDINAL ) provides that , in matters where the right of appeal exists , if a first - instance administrative authority fails to give a decision on a party \u2019s application within DATE , the party may submit his or her application to the appellate administrative authority . Against the latter authority \u2019s decision the party may bring an action in ORG , and if the authority fails to give a decision , the party may bring an administrative action under the conditions set out in paragraph CARDINAL .","Section PERSON ) provides that when ORG , following the action for failure to respond , finds for the plaintiff , it shall either instruct the respondent administrative authority how to decide the case on points of law , or shall itself rule on the application ( acting as a court of full jurisdiction under paragraph CARDINAL of section CARDINAL ) .","Section CARDINAL ) provides that , in the execution of the judgment rendered under section PERSON ) , the administrative authority shall issue its decision immediately but at the latest within DATE . Otherwise , a party may by a special submission request it to do so . If the authority does not issue a decision within DATE following that request , a party may apply to ORG .","Section CARDINAL(CARDINAL ) provides that if such an application is made , the ORG shall first ask the administrative authority to give reasons for its omission . The authority shall reply immediately but at the latest within DATE . If the authority fails to do so , or if the reasons given do not justify the failure to decide , the ORG shall give a decision entirely substituting for the decision of the administrative authority .","In case no . U - IIIA\/CARDINAL\/CARDINAL of DATE , ORG was seized under LAW of LAW to examine the length of administrative proceedings instituted in DATE when the complainant had brought an action in ORG for ORG failure to give a decision in his case . In DATE ORG ordered the ORG to give a decision within DATE . ORG gave a negative decision in DATE . The complainant then brought a second administrative action , challenging that decision . In DATE ORG quashed the impugned decision and remitted the case . ORG again gave a negative decision and served it on the complainant in DATE . On DATE the complainant had brought a third administrative action , which was dismissed by ORG in DATE . Meanwhile , on DATE he lodged his constitutional complaint arguing that ORG should , like ORG , take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time .","Following its previous practice ( decisions no . U - III-CARDINAL\/CARDINAL of DATE , and ORG of DATE ) , ORG held that only the inactivity of the judicial authorities was relevant for a breach of LAW . In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time - limits ( see paragraphs CARDINAL and CARDINAL above ) . ORG therefore examined only the length of the proceedings in their part between the introduction of the complainant \u2019s third action in ORG and the lodging of the constitutional complaint . It dismissed the constitutional complaint finding that the proceedings had lasted DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98355","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2010,"docname":"CASE OF KIN-STIB AND MAJKIC v. SERBIA","importance":3,"conclusion":"Preliminary objections dismissed (ratione personae, non-exhaustion of domestic remedies);Remainder inadmissible;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the first applicant concluded a joint venture agreement with the \u201c ORG GPE \u201d , concerning the setting - up and joint operation of a casino on its LOC .","At that time , the said hotel was owned by \u201c GPE \u201d ( hereinafter \u201c ORG \u201d ) , a major \u201c socially - owned company \u201d ( see paragraph CARDINAL below ) with an annual turnover in excess of MONEY ( \u201c USD \u201d ) .","Article CARDINAL of the joint venture agreement provided that the first applicant was entitled to collect PERCENT of any earnings made as part of the joint operation of the casino in question , whilst ORG had the right to collect PERCENT thereof . LAW , however , stated that ORG would , in any event , be entitled as guaranteed minimum earnings to a payment of MONEY DATE by the first applicant .","The casino opened in DATE . By DATE , however , it closed due to various financial difficulties , and a number of disputes between the parties followed .","NORP In DATE the first applicant brought proceedings against ORG before ORG of ORG ( hereinafter the \u201c ORG \u201d ) , seeking repossession of the casino as well as compensation for breach of contract .","On DATE ORG , having resolved issues regarding the first applicant 's status , ruled partly in its favour . Specifically , ORG was ordered to : ( a ) pay compensation in the amount of ORG CARDINAL,CARDINAL , CARDINAL , plus PERCENT interest , on account of the first applicant 's inability to operate the casino in question DATE and DATE ; ( b ) allow the first applicant to retake possession thereof ; and ( c ) effectively manage its operation for DATE after reopening it . The sum of USD MONEY , i.e. USD CARDINAL DATE , was arrived at by multiplying ORG 's minimum DATE earnings on the basis of the agreed ratio ( see paragraph CARDINAL above ) .","On DATE ORG in GPE ordered the enforcement of the arbitration award of DATE , in its entirety .","Following several suspensions and adjournments , on DATE ORG informed ORG that ORG had been transferred to the first applicant 's bank account .","On DATE ORG ordered the payment of the remaining USD CARDINAL,CARDINAL.CARDINAL , together with the interest accrued .","By DATE the debtors , ORG as CARDINAL successor companies of the original ORG company , appear to have fully complied with this order .","On DATE the first applicant requested repossession of the casino and sought to be allowed to effectively manage it for DATE after reopening it .","Following CARDINAL oral hearings , on DATE ORG accepted this request and ordered the debtors to comply therewith .","On DATE ORG dismissed the applicants ' motion to order the full and effective enforcement of the arbitration award , stating that it did not have the competence , ratione materiae , to consider complaints alleging individual human rights violations .","On DATE ORG fined the debtors for their failure to comply with the repossession order and mandated repossession within DATE . Initially , the fine imposed was MONEY ( \u201c ORG \u201d ) per debtor ( MONEY ) , but on DATE this amount was reduced to ORG CARDINAL each ( MONEY ) .","In DATE the applicants filed a complaint with ORG and GPE .","DATE and DATE ORG fined the debtors for their failure to comply with the repossession order on CARDINAL separate occasions . The fines imposed totalled ORG CARDINAL ( MONEY ) .","On DATE ORG terminated the enforcement by means of imposing fines , noting that the maximum statutory amount had been reached in accordance with LAW .","On DATE this decision was confirmed .","On DATE ORG rejected the first applicant 's subsequent request for it to impose additional fines on the debtors .","On DATE this decision was confirmed .","On DATE ORG noted that on CARDINAL DATE ORG had ordered the restructuring of the debtors and stayed the enforcement proceedings until the conclusion of this process .","In DATE ORG instituted civil proceedings before ORG in GPE , seeking annulment of the arbitration award . Once again , it raised issues regarding the first applicant 's status .","On DATE ORG rejected this claim , as did ORG on DATE and , ultimately , ORG on DATE , at third and final instance .","On DATE ORG filed a request for the reopening of the annulment proceedings .","Following CARDINAL remittals , on DATE ORG rejected this request . In so doing , inter alia , it noted that the issues raised by the plaintiffs had already been considered , in CARDINAL form or another , within the impugned annulment suit .","On DATE the High Commercial Court confirmed this decision on appeal .","Following prior remittals , on DATE ORG ruled partly in favour of the first applicant . ORG were thus ordered to pay a total of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , plus interest , on account of the first applicant 's inability to operate the casino DATE and DATE .","On DATE the High Commercial Court upheld this judgment , and it thereby became enforceable .","On DATE ORG reduced the amount awarded to ORG , plus interest . It estimated the lost earnings only on the basis of the respondent 's minimum DATE profit , as stipulated in the joint venture agreement ( see paragraph CARDINAL above ) .","In the meantime , on DATE , the first applicant sought enforcement of the judgment rendered on DATE , by means of a bank account transfer .","On DATE ORG issued an enforcement order .","On DATE ORG terminated the enforcement proceedings . In so doing , it noted that , notwithstanding the fact that ORG had subsequently reduced the compensation awarded to ORG , plus interest , MONEY in excess of this amount had already been transferred to the first applicant 's bank account .","Following prior remittals , on DATE , and as rectified on DATE , ORG ruled partly in favour of the first applicant . It thus ordered ORG to pay a total of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , plus interest , on account of the first applicant 's inability to operate the casino DATE and DATE . This time , ORG also estimated the lost earnings on the basis of ORG 's minimum DATE profit only , as stipulated in the joint venture agreement .","On DATE the High Commercial Court upheld this judgment , and it thereby became enforceable .","On DATE ORG rejected the appeals on points of law ( revizije ) filed by the parties .","In the meantime , on DATE , the first applicant sought enforcement of the judgment rendered on DATE by means of a bank account transfer .","On DATE ORG issued an enforcement order .","The enforcement proceedings would appear to be still pending .","In DATE ORG in GPE charged the second applicant with forgery . In particular , it was alleged that he had made fraudulent statements regarding the first applicant 's status under NORP law , and had forged several powers of attorney in order to get involved in the above proceedings .","On DATE the second applicant was placed in pre - trial detention but by DATE he was released .","On DATE ORG in GPE terminated the criminal proceedings against the second applicant . It stated that the first applicant was indeed a registered entity under NORP law , that the impugned powers of attorney were authentic , and that there was no evidence whatsoever indicating that the second applicant had committed a crime .","DATE Additional criminal proceedings , concerning related \u201c fraud and forgery issues \u201d , were terminated on similar grounds by ORG in GPE on DATE .","DATE . On an unspecified date ORG was renamed ORG .","On DATE the second applicant bought from PERSON , at that time the first applicant 's sole owner , \u201c a part of the first applicant \u201d consisting of all of its rights and pecuniary interests derived from the joint venture agreement of CARDINAL DATE . The second applicant thus became \u201c the owner of this part of the company \u201d , as well as the first applicant 's \u201c Director and President \u201d in all matters related to GPE .","On DATE ORG in GPE confirmed that , as of DATE , the second applicant held PERCENT of the first applicant 's shares and was its Deputy General Manager .","The first applicant 's ORG , as certified in DATE , reaffirmed the above and noted that the second applicant was indeed the first applicant 's sole representative in respect of all matters concerning the joint venture in question .","On DATE ORG issued a statement informing the public that an exclusive gambling licence had been granted to a company called ORG . The licence had been issued for DATE in respect of a casino to be located in GPE .","On DATE the first applicant informed ORG about its outstanding claim in respect of ORG .","On DATE the first applicant sent another warning letter to ORG .","On DATE , however , ORG , following a public competition organised by ORG , sold some of its real estate to ORG . CARDINAL of the buildings sold was ORG . Article CARDINAL of the sales contract provided , inter alia , that the buyer shall not , within DATE , be entitled to mortgage or otherwise burden the hotel , unless it obtains prior written authorisation to this effect from ORG .","Despite the restructuring and sale of some of their assets , ORG are themselves still socially - owned companies .","Article CARDINAL \u00a7 CARDINAL provides that enforcement proceedings are urgent .","Articles DATE and CARDINAL \u00a7 CARDINAL explicitly recognise arbitration awards as valid legal bases for the formal institution of enforcement proceedings .","Article CARDINAL states that enforcement proceedings shall also be carried out at the request of a claimant not specifically named as the creditor in the final court decision , providing the former can prove , by means of an \u201c official or another legally certified document \u201d , that the entitlement in question has subsequently been transferred to it from the original creditor . This provision shall , mutatis mutandis , also be applied in respect of a debtor who has not been specifically named as such in the final court decision at issue .","Articles CARDINAL - CARDINAL regulate enforcement in situations where a debtor 's compliance is required : in particular , where a debtor has been ordered to perform a certain action , desist therefrom or accede thereto . The system provides for the successive imposition of fines up to a certain maximum which , if the debtor happens to be a natural person and the fines can not be enforced , may ultimately be converted into a number of prison DATE .","The substance of LAW corresponds , in the relevant part , to that of LAW referred to above .","LAW entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with Article CARDINAL , however , all enforcement proceedings instituted prior to DATE are to be concluded pursuant to the DATE legislation .","Pursuant to LAW , an arbitration award has the force of a final judgment in respect of the parties to the proceedings , unless the arbitration agreement itself provides for an appeal to a higher instance .","Articles CARDINAL , CARDINAL and CARDINAL set out the deadlines and the specific grounds for the annulment of an arbitration award , which can only be sought through the institution of a separate civil suit before a \u201c regular \u201d court of law .","Article CARDINAL \u00a7 CARDINAL provides that a domestic arbitration award shall have the force of a final domestic judgment and shall be enforceable .","This Act entered into force in DATE and thereby repealed the above - cited provisions of LAW .","DATE . Articles DATE set out the details as regards the restructuring of companies about to be privatised . This restructuring , however , is optional and a company may be sold without having been restructured if ORG so decides .","Article PERSON provides , inter alia , that all enforcement proceedings instituted in respect of companies undergoing restructuring shall be stayed until the conclusion of this process .","The relevant provisions of this legislation are set out in the NORP GPE and Others v. GPE judgment ( ORG . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23193","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2003,"docname":"FISCHER v. AUSTRIA","importance":1,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE ORG delivered a judgment in a case which had been introduced by the applicant ( PERSON Fischer v. GPE , no . CARDINAL , unreported ) . It found a violation of LAW in that the applicant had consecutively been tried and punished for CARDINAL offences containing the same essential elements , first by the administrative authority for the offence of drunken driving under LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) ( a ) of FAC and , after that decision had become final , by ORG for causing death by negligence with the special element under LAW of LAW of \u201c allowing himself to become intoxicated \u201d , whereby intoxication is irrebuttably presumed where a person \u2019s blood alcohol level is QUANTITY .","On DATE the applicant filed an application with ORG under Article CARDINALa of LAW ( see below ) , requesting a retrial .","On DATE the applicant requested ORG to hold a hearing .","On DATE ORG dismissed the application without holding a hearing .","ORG found that the requirements of Article CARDINALa of LAW were not met , as the PERSON v. GPE judgment had not established that there had been a violation of LAW No . CARDINAL \u201c on account of a decision of a criminal court \u201d . In reaching this conclusion ORG had regard to the ORG \u2019s reasoning whereby the question whether or not the non bis in idem principle was violated concerned the relationship between the CARDINAL offences at issue but not the order in which the CARDINAL sets of proceedings were conducted , and that the Contracting State remained free to determine which of the QUANTITY offences was to be prosecuted .","ORG decision was served on DATE .","Under the heading \u201c retrial \u201d ( Erneuerung des PERSON ) the Code of Criminal Procedure ( GPE ) provides as follows :","\u201c CARDINAL . If it is established in a judgment of ORG that there has been a violation of ORG ( PERSON [ Official PERSON ] no . CARDINAL\/CARDINAL ) or of one of its Protocols on account of a decision or order of a criminal court , a retrial shall be held on application in so far as it can not be ruled out that the violation might have affected the content of a criminal court \u2019s decision in a manner detrimental to the person concerned .","All applications for a retrial shall be decided by ORG . ... \u201d","\u201c CARDINAL . On an application for a retrial , the ORG shall deliberate in private only where the Procurator General or the judge rapporteur proposes that a decision be taken on CARDINAL of the grounds set out in DATE and CARDINAL .","Where ORG deliberates in private , it may refuse an application","...","if it unanimously considers the application to be manifestly ill - founded .","... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90468","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF OBUKHOVA v. RUSSIA","importance":3,"conclusion":"Violation of Art. 10;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE . She is a journalist on the PERSON newspaper .","On DATE the newspaper published an article by the applicant under the headline \u201c DATE they impounded the car \u201d ( \u00ab ORG \u0433\u043e\u0434 \u0430\u0440\u0435\u0441\u0442\u043e\u0432\u0430\u043b\u0438 \u0430\u0432\u0442\u043e\u043c\u043e\u0431\u0438\u043b\u044c ORG ) . The article was prompted by the following letter written by PERSON reproduced in italics in the opening passage of the article :","\u201c On DATE my husband ... had a traffic accident . PERSON , a judge of the [ FAC ] regional court , crashed into his car ... The traffic police officers did not find us responsible and we calmed down . But DATE we received by registered mail a statement of claim , requesting that PERSON be compensated for damage in the amount of MONEY , and an order for a charge on our property and our car issued by a judge . We had not been informed of the hearing and we consider that our civil rights were violated as we were convicted in our absence . We feel that PERSON is taking advantage of her office and connections in the judiciary \u201d .","The article related the versions of the traffic accident by Judge PERSON ( as described in her statement of claim ) , by traffic police officers , by PERSON and PERSON and by eyewitnesses . It concluded as follows :","\u201c So far the NORP ORG [ of ORG ] has held CARDINAL hearings ... The date of the next hearing is not fixed yet . PERSON and PERSON remember menacing words that PERSON [ Baskova ] uttered immediately after the traffic accident \u2018 You will buy me a new car anyway!\u2019 ; they shudder but they will defend themselves to the very end . \u201d","On DATE Judge PERSON sued the newspaper , the applicant and PERSON for defamation and refutation of untrue information contained in the statement \u201c PERSON is taking advantage of her office and connections in the judiciary \u201d .","On DATE Judge PERSON requested the court to order interim measures , and notably an interlocutory injunction on the newspaper to prevent publication of \u201c any articles , letters or materials about the factual circumstances of the traffic accident of DATE , as well as about the court proceedings concerning that accident until they [ had ] finished \u201d .","On DATE a judge of ORG of ORG issued a decision to indicate interim measures ( \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 \u043e\u0431 \u043e\u0431\u0435\u0441\u043f\u0435\u0447\u0435\u043d\u0438\u0438 \u0438\u0441\u043a\u0430 ) . The decision endorsed the arguments put forward by Judge PERSON and read , in its entirety , as follows :","\u201c The plaintiff has referred to the following circumstances . The article \u2018 DATE they impounded the car\u2019 ( PERSON , no . CARDINAL , DATE ) was published before a decision on the merits of her claim for damages against PERSON had been issued , after the ORG of Yaroslavl had suspended the proceedings on DATE and commissioned a technical study at the defendant \u2019s request . The article ends with the assertion that PERSON and PERSON \u2018 will defend themselves to the very end\u2019 . The plaintiff considers that further developments in the judicial proceedings \u2013 upon their resumption DATE may also be reported by the newspaper in such a manner as to confirm the damaging information and conclusion already disseminated by the author .","[ The plaintiff ] considers that under these circumstances a failure to indicate interim measures can impede the enforcement of the judgment [ in the defamation claim ] : otherwise , alongside with publication of a rectification of the information damaging to her , the newspaper would be entitled to continue publications stating the opposite view , which would undermine the judicial protection of her impaired rights .","Pursuant to LAW of GPE , a court may , at a request of a party to the case , indicate interim measures if a failure to indicate them could impede the enforcement of a court judgment .","Having regard to the above , I consider that PERSON request is to be granted . \u201d","ORG issued DATE with immediate effect \u2013 an interlocutory injunction worded as follows :","\u201c To enjoin the editor \u2019s office of the PERSON newspaper from publishing any articles , letters or other materials written by anyone , which relate the factual circumstances of the traffic accident on DATE with the participation of PERSON , PERSON and PERSON , or the circumstances of the judicial proceedings on PERSON claim for damages against PERSON until such time as the present dispute has been resolved .","To serve a copy of the injunction on the bailiffs\u2019 service of LOC of GPE , PERSON , the editor \u2019s office of the PERSON newspaper , the newspaper \u2019s reporter PERSON , and PERSON . \u201d","On DATE ORG dismissed the appeal against the injunction , finding as follows :","\u201c The regional court considers that in the instant case a failure to indicate interim measures would impede not only the enforcement of the court judgment but also the examination of the [ defamation ] action .","The arguments in the appeal to the effect that the [ injunction ] violated the defendant \u2019s constitutional right to impart information can not be taken into account as the prohibition only covers publication of materials concerning CARDINAL specific traffic accident ... Publication of materials about these facts before the judgment has been made would be contrary to the interests of the justice . The interim measures indicated by the court are proportionate \u201d .","On DATE the ORG gave judgment in the defamation claim . It did not accept the argument by the newspaper \u2019s lawyer that the contested statement was PERSON subjective opinion which was evident from the introductory expression \u201c we feel that \u201d . The court considered it to be \u201c the author \u2019s allegation ... about PERSON using her office and connections ... in the framework of lodging her claim and obtaining interim measures \u201d . As the defendants could not prove the truthfulness of that statement , the court ordered publication of a rectification in the newspaper . On DATE the ORG upheld that judgment .","The Code of Civil Procedure provides as follows :","\u201c At the request of a party to the case , a judge or a court may indicate interim measures . Such measures may be indicated at any stage of the proceedings if a failure to indicate them could impede or make impossible the enforcement of the court judgment . \u201d","\u201c CARDINAL . Interim measures may include :","...","( CARDINAL ) an injunction restraining the defendant from carrying out specific actions ;","...","When necessary , a judge or a court may indicate any other interim measures that correspond to the purposes described in LAW ...","...","Interim measures must be proportionate to the plaintiff \u2019s claims . \u201d","\u201c CARDINAL . ... If the claim has been granted , interim measures remain effective until the judgment has been enforced . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95651","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF ARAT v. TURKEY","importance":3,"conclusion":"Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE . He is the owner of a grocery shop in ORG which he runs with his brother .","According to the arrest report , drafted on DATE at TIME and signed by the applicant and his brother , police officers had received information that shopkeepers on FAC were not opening their shops as a protest to mark the second anniversary of the arrest of PERSON , the leader of the ORG ( ORG Party ) , an illegal armed organisation . When the officers arrived at the street in question they asked the applicant and his brother to open their shop . The applicant and his brother swore at them and shouted slogans . In the meantime , a small crowd of children and women had started to throw stones at the police cars . The police officers requested , via wireless radio , reinforcements from the police station . CARDINAL police officers sustained injuries while trying to arrest the applicant and his brother . The police officers then used force to subdue the applicant and his brother before arresting them for obstructing an official in the course of his duties . It is also stated that the suspects reached for the gun of one of the police officers . It appears that QUANTITY police officers took part in the applicant and his brother 's arrest .","In his application form the applicant submitted that , on DATE , before he had opened the shutters of his shop , a number of police officers arrived and started smashing the shop shutters and windows with sledgehammers . When the applicant and his brother attempted to stop the police officers , they were beaten up , arrested and subsequently placed in police custody .","According to a medical report drawn up at the ORG branch of ORG DATE , at TIME , there was QUANTITY reddish bruise and a traumatic oedema on the front of the applicant 's left arm . There was also another red - coloured bruise , measuring QUANTITY , on the outside of his left thigh .","The same doctor also found a number of injuries on the applicant 's brother , including a CARDINAL x QUANTITY wound on the right parietal region , a QUANTITY bruise on the right side of his neck , a QUANTITY bruise on the right side of his lower back and left shoulder , slight erosion on his right wrist and a number of superficial grazes .","In the meantime , on DATE , CARDINAL of the police officers were examined first at ORG , and later at the ORG branch of ORG .","According to the medical report drawn up at ORG , at TIME , police officer M.A.A. had sustained a haematoma on his left eye , had redness and sensitivity on the right side of his chest , a haematoma and swelling on his left hand and a swelling and superficial graze on his right hand . At TIME Mr M.A.A. was examined at ORG , where the doctor found that the police officer had sustained a haematoma on his left eye and a traumatic oedema on his left cheek , pain and sensitivity on his left hand and the right side of his ribs and that he had slight erosion on the right hand .","According to the medical report drawn up at ORG , at TIME , police officer H.A.K. had a broad patch of redness on the right side of his neck and shoulder region . At TIME he was examined at ORG , where the doctor found that the police officer had a number of reddish bruises on the right and front of the neck and felt pain and sensitivity in the right shoulder .","On DATE the prosecutor at ORG granted the police authorisation to detain the applicant and CARDINAL other suspects who had been detained for similar acts on that date for an additional period of DATE .","On DATE , while he was still being detained in police custody , the applicant was questioned . In TIME of the questioning , the applicant was recorded as having stated that he sympathised with the policies of the ORG . On DATE he had found a leaflet on the floor outside the shop that had been prepared and distributed by the ORG , inviting local businesses not to open their shops on DATE . Following this invitation , he had intended not to open his shop until TIME He stated that he had followed such instructions in the past .","On DATE the applicant was examined by a doctor at ORG who noted a QUANTITY bruise on the front of his right arm , a QUANTITY bruise on the top of his left foot and a QUANTITY bruise on his left thigh .","DATE the applicant was brought before the prosecutor at ORG and then before the duty judge at the same court , where he retracted the statement he had made in police custody and said that he had merely been late in opening his shop on DATE because he had guests at his house ; he had not been protesting at all . In the statement taken by the prosecutor , the applicant was recorded as having said that \u201c he had been beaten up by the police officers but he did not wish to make a complaint \u201d . Before the duty judge the applicant claimed that a police officer named PERSON had hit him with a truncheon when he had tried to prevent the latter from breaking his door down , and that he had neither hit any of the police officers nor shouted any slogans . The duty judge ordered the applicant 's remand in custody .","On DATE the prosecutor at ORG filed an indictment charging the applicant and his brother with the offence of aiding and abetting an illegal organisation , under LAW of LAW .","On DATE the criminal proceedings before ORG ( hereinafter \u201c the ORG \u201d ) commenced .","In the meantime , on DATE the applicant submitted a written petition to the trial court requesting his release . In particular , he claimed that , during his arrest , the police had beaten him and his brother with truncheons , but that he was not complaining about any particular police officer .","On DATE the ORG held its first hearing , when it heard evidence from the accused , the police officers and defence witnesses . The applicant claimed , inter alia , that the police officers had tried to break the shutters of his shop with a sledgehammer and that , when he had tried to prevent them , by holding the sledgehammer , they had beaten and arrested him . He also retracted his statements given to the police on the ground that he had signed them without reading them . The CARDINAL defence witnesses heard by the court stated that they had not seen the applicant shouting , resisting or swearing at the police or a crowd of people throwing stones at the police . CARDINAL of the CARDINAL defence witnesses stated that the applicant had been beaten during his arrest .","The police officers who had arrested the applicant reiterated that the applicant and his brother had refused to open the shutters of their shop and that when , in accordance with the order from the Governor , they had tried to break open the shutters , the applicant and his brother had sworn at them and attacked them . They stated that a crowd of people had been shouting and swearing and attacking them , but that by the time the reinforcements arrived they had all dispersed ; only the applicant and his brother had been arrested .","NORP In hearings held on CARDINAL and DATE both the prosecutor and the applicant 's representative stated that they did not want an additional investigation . On the latter date the trial court released the applicant pending trial . It also decided to hear all the witnesses once again in order to dispel factual contradictions . After having reheard CARDINAL of the defence witnesses , CARDINAL of whom altered his testimony , on DATE the trial court considered that , although certain inconsistencies remained , the facts had been sufficiently elucidated .","On DATE the trial court found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment . The applicant 's brother was acquitted .","The applicant appealed and asked ORG to hold a hearing . In his grounds of appeal the applicant claimed , in particular , that his statements given to the police had been taken under duress . He reiterated that , during the arrest , he and his brother had been beaten by the police officers , as attested by eyewitnesses , whereas there was no evidence that he and his brother were responsible for the injuries sustained by the police officers .","NORP In his written observations submitted to ORG , the prosecutor asked for the conviction to be quashed as the applicant 's guilt had not been proved beyond reasonable doubt .","On DATE ORG , observing that the applicant 's lawyer was absent , decided not to hold a hearing and upheld the applicant 's conviction .","On DATE the applicant was released from prison .","On DATE , upon a request by the applicant to benefit from Law no . DATE , ORG reviewed its previous decision and found that the applicant 's conviction and sentence met the requirements of this PERSON . Accordingly , it \u201c annulled \u201d the applicant 's conviction and sentence . Since no one objected to that decision , it became final on DATE .","A description of the relevant domestic law at the material time can be found in the GPE v. GPE judgment , ( no . GPE , \u00a7 CARDINAL , CARDINAL DATE ) , and the G\u00f6\u00e7 v. GPE judgment ( [ ORG ] , no . MONEY , \u00a7 CARDINAL , ORG PERSON ) .","Law no . DATE ( the Law on Reintegration into ORG ) , which entered into force on DATE , provided for amnesties under certain conditions and reduced sentences for members of terrorist organisations ."],"violated_articles":["3","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79606","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF BISERICA ADEVARAT ORTODOXA DIN MOLDOVA v. MOLDOVA","importance":3,"conclusion":"Violation of Art. 9;Violation of P1-1;Violation of Art. 13+9;Not necessary to examine Art. 14+9;No separate issue under Art. 6 and 11;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants joined together to form the \u201c ORG in GPE \u201d ( \u201c the NORP \u201d ) and applied for registration by the Government on the basis of LAW ( Law no . CARDINAL of DATE ) . When the authorities refused to register the ORG by letter of CARDINAL DATE , the applicants initiated court proceedings .","On DATE ORG accepted their claim and ordered the Government to register the ORG . The court also awarded each of the applicants CARDINAL Moldovan lei ( MONEY ( ORG ) at the time ) in compensation for the non - pecuniary damage suffered .","On DATE ORG upheld that judgment , finding that the Government had not submitted any evidence that the ORG would harm public order , health or morals . That judgment was final and enforceable .","The applicants subsequently made requests for the enforcement of the final judgment . In turn , ORG made requests to the Government to comply with the judgment , to no avail .","On DATE LAW was amended and the procedure for the registration of religious denominations was simplified . On the basis of these amendments , on DATE the applicants asked the \u201c ORG for ORG \u201d to register the ORG . They relied on LAW above - mentioned law ( as amended on DATE , see below ) and on the final judgment in their favour ordering the ORG \u2019s registration .","NORP By letter of DATE ORG ( \u201c the Service \u201d ) rejected that request because it \u201c had not received any request for the registration of any religious denomination \u201d . The ORG could not register the ORG until the relevant ORG had been established and the necessary documents had been filed with it . On DATE the applicants submitted the relevant documents to the ORG .","On DATE ORG ( \u201c the GPE \u201d ) sent the enforcement warrant for enforcement to the ORG . By its letters of CARDINAL and DATE and DATE the ORG requested the ORG to comply with the judgment of DATE .","In a letter of DATE the ORG replied to the ORG that the applicants had refused to re - submit documents requested from them and to explain certain parts of the statute of the ORG regarding its canonical subordination to foreign churches .","On DATE an officer working for the ORG found that the judgment of DATE had not been enforced and asked the court to sanction those responsible for the non - enforcement . The officer sent additional requests to the ORG and ORG on DATE , DATE , DATE and DATE , again asking that those responsible for the non - enforcement be punished .","The Government made CARDINAL attempts to re - open the proceedings by claiming the discovery of new and relevant information which had not been previously known . These requests were rejected by decisions of ORG on DATE and ORG on DATE and DATE .","In DATE the applicants submitted a new request and a set of accompanying documents , requesting the registration of the ORG . They received no reply .","The pecuniary part of the judgment of CARDINAL DATE was enforced on DATE .","The relevant domestic law has been set out in the cases of ORG and Others v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , ORG CARDINALXII ) and GPE v. GPE ( no . CARDINAL , \u00a7 DATE , ORG CARDINAL ( extracts ) ) .","In addition , the relevant provisions of the PERSON for the amendment of LAW ( no.CARDINAL , DATE ) read as follows :","\u201c Article I","Article CARDINAL shall have the following text :","\u2018 LAW . Recognition of cults .","In order to be able to organise themselves and to function , a religious denomination shall submit to the ORG authority [ dealing with ] religious denominations a declaration on their functioning and organisation , annexing their statute ( by - laws ) for their organisation and functioning including information about the system of administration and functioning , together with the fundamental principles of its faith .","The declaration mentioned [ above ] shall be submitted to the ORG authority for religious denominations , which shall make a registration in the Registry of religious denominations within DATE from the date of submission of the declaration.\u2019","... LAW","( CARDINAL ) NORP for registration which were pending at the date of entry into force of the present Law shall be considered to be declarations within the meaning of Article CARDINAL of the Law on Religious Denominations and shall be examined in accordance with the provisions of that Article . \u201d"],"violated_articles":["13","9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104734","languageisocode":"ENG","respondent":"MKD","branch":"ADMISSIBILITY","date":2011,"docname":"GALENA VRANISKOSKA v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who was born in DATE . The applicant lives in GPE . She submitted the application in her name and on behalf of PERSON , her late husband , who died on DATE . The applicant was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","Under a sales agreement of DATE , the applicant obtained title to agricultural land in a place called PERSON , near GPE . According to the applicant , in DATE the land authorities issued a certificate attesting that the plot in issue was outside the area designated for construction ( \u043d\u0430\u0434\u0432\u043e\u0440 \u043e\u0434 \u0433\u0440\u0430\u0434\u0435\u0436\u0435\u043d \u0440\u0435\u043e\u043d ) . On that property , the applicant and her husband constructed a DATE house and garage without a building permit , as was the case with houses built by other individuals in PERSON . The applicant lives in an apartment in GPE . On an unspecified date in DATE , they also started constructing a house of worship and supporting walls ( hereafter referred to as \u201c the structures \u201d ) .","On DATE an inspector from ORG ( hereafter \u201c the Ministry \u201d ) carried out an on - site inspection of the property . A report was drawn up according to which the applicant and her husband had started building the structures without a building permit . ORG ordered them to demolish the structures immediately under threat of a forcible demolition ( \u201c the demolition order \u201d ) . Referring to the on - site inspection and the report that had been drawn up , it stated that they had started building the structures without a permit . Under the order , the demolition costs were to be borne by the applicant and her husband . It relied on section QUANTITY of LAW , as valid at the material time , under which an appeal against the order would not have had suspensive effect ( see \u201c Relevant domestic law \u201d below ) .","In a separate decision , the ORG decided that the demolition order had become enforceable ( \u201c the enforcement order \u201d ) . It ordered the applicant and her husband to destroy the structures immediately . It reiterated that they were to bear the costs of demolition and that an appeal would not have a suspensive effect . In this context , it referred to section CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW of DATE ( \u201c the LAW , see \u201c Relevant domestic law \u201d below ) , as valid at that time .","The Government submitted copies of CARDINAL delivery receipts ( \u201c the receipts \u201d , \u0434\u043e\u0441\u0442\u0430\u0432\u043d\u0438\u0446\u0438 ) according to which on DATE the demolition and enforcement orders were served , in the applicant \u2019s apartment , on a minister ( \u0441\u0432\u0435\u0448\u0442\u0435\u043d\u0438\u043a ) who had refused to identify himself and to give information about the applicant \u2019s whereabouts . The minister had also refused to sign the receipts . Both receipts were dated and signed by a bailiff .","On DATE the Ministry issued an announcement informing the applicant that the demolition and enforcement orders were at its LOC and that they would be posted on ORG notice board since she could not be found at her place of residence . On DATE , the bailiff , with a handwritten note on the announcement , indicated that it had been handed over , in the applicant \u2019s apartment , to a minister who had refused to identify himself . The latter did not sign the announcement .","According to the applicant , at TIME on DATE , CARDINAL armed police officers arrived on her property in PERSON accompanying workers engaged by ORG to enforce the demolition order . QUANTITY police officers , without a court warrant or any other decision , entered the applicant \u2019s weekend house and forced her husband and their son outside . They were allegedly forced to watch the demolition of the structures . The Government contested the applicant \u2019s version of events regarding the demolition of the structures , without giving any further details .","On DATE the applicant and PERSON requested the Ministry to serve the demolition order on them . They stated that they had never received it and referred to an announcement of DATE on the notice board in the Ministry concerning their case .","On DATE the ORG replied that there was evidence in the case file that the demolition order had been served on them and that accordingly there were no grounds for a repeated service .","On DATE the applicant and her husband appealed against the demolition and enforcement orders before the Government second - instance Commission ( \u201c the Commission \u201d ) arguing that they had never been served on them . They complained that even assuming that the announcement posted on the ORG \u2019s notice board was to be regarded as the equivalent of service , the demolition order could only have become enforceable DATE after DATE , as set forth in CARDINAL of the LAW . On DATE they requested the Commission to decide , within DATE , their appeals . On DATE the applicant and her husband lodged an appeal on points of law with ORG complaining about the Commission \u2019s failure to decide their appeals ( \u0442\u0443\u0436\u0431\u0430 \u043f\u043e\u0440\u0430\u0434\u0438 \u043c\u043e\u043b\u0447\u0435\u045a\u0435 \u043d\u0430 \u0430\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0446\u0438\u0458\u0430\u0442\u0430 ) .","On DATE the Commission dismissed , by CARDINAL separate decisions , the appeals , finding that the demolition and enforcement orders had been given in accordance with the law . It stated that the applicant and her husband had started building the structures without a permit , as required under section CARDINAL \u00a7 CARDINAL of LAW . As to the applicant \u2019s complaints about the improper service of the orders , the Commission stated :","\u201c ... the ORG has examined the [ applicant \u2019s ] arguments in the appeal and finds that they are unsubstantiated and without any legal effect , since no construction work can be undertaken without a building permit being obtained ... \u201d","On DATE the applicant and her husband challenged the ORG \u2019s decisions by way of an appeal on points of law in which they reiterated their earlier arguments .","On DATE ORG rendered CARDINAL decisions dismissing their appeals . It found no force in their arguments that the administrative bodies had ignored their complaints about the alleged failure to serve the demolition order on them . In this connection it stated that \u201c the service was carried out in accordance with the Act \u201d . Referring to the case file , the court held that the inspector responsible had correctly ordered , under section CARDINAL of LAW , the demolition of the structures . The decisions were sent to the applicant on DATE .","Section CARDINAL of the LAW , as valid at the material time , provided that a decision should , in principle , be handed over to the individual concerned in person .","Under section DATE , the decision was to be served , in principle , at the home of the recipient .","Under section DATE , if the recipient was not at home , the decision would be served on an adult member of his or her family or to a housekeeper or neighbour , with their consent .","Under section CARDINAL \u00a7 CARDINAL of the LAW , when the service could not be effected in accordance with section CARDINAL , the bailiff would return the decision to the competent body . A written announcement indicating the place where the decision was kept would be posted on the door of the recipient \u2019s home . Under sub - section CARDINAL of this paragraph , such service was regarded lawful and any later damage or destruction of the announcement would not affect the lawfulness of the service .","Section CARDINAL of the Act provided that in the case of multiple unidentifiable recipients a decision would be served by way of a public announcement on the notice board of the competent body . Service would be considered to have been effected DATE after the posting of the announcement .","Under section CARDINAL of the LAW , if the person concerned or an adult member of his or her family refused to be served with a decision without any legal ground , the bailiff would either leave the decision in the recipient \u2019s home or would post it on the door , which would be considered as equivalent to the service . The bailiff would mark the date , hour and reasons for refusal of the service , as well as the place where the decision was put .","Section CARDINAL \u00a7 CARDINAL ( CARDINAL ) provided that a first - instance decision would become enforceable after being served on the interested party . That applied where an appeal did not suspend enforcement .","Under section DATE ( CARDINAL ) and ( CARDINAL ) of LAW , as then valid , the competent inspectorate would order immediate demolition of buildings constructed without a building permit . An appeal did not suspend the enforcement of the demolition order .","Under section CARDINAL of LAW , a construction built without a building permit does not confer to an investor title to the unlawfully erected building . Until such building is validated or demolished , the investor , equally to an owner , has a right to judicial protection , unless otherwise regulated by law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90158","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"SCOTT v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE and Wear . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on CARDINAL DATE . His formal claim for widows\u2019 benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . On DATE the applicant appealed and reconsideration took place on DATE . The previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The Government submitted that the applicant was not in receipt of child benefit at the time of his claim . The applicant , who had initially submitted that he had ceased to be eligible for child benefit at some time in DATE , failed to submit any comments in reply , although invited to do so .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV , and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57582","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":1969,"docname":"CASE OF ST\u00d6GM\u00dcLLER v. AUSTRIA","importance":2,"conclusion":"Violation of Art. 5-3;Just satisfaction reserved","judges":"","text":["The object of the ORG \u2019s request and of the Government \u2019s Application is to have the PERSON case referred to the ORG so that the latter may decide whether the facts of the case reveal any violation by GPE of its obligations under LAW , paragraph ( CARDINAL ) ( article CARDINAL ) , of the Convention .","The facts of the case as stated in ORG , the Government \u2019s memorial , the other documentary evidence produced and the oral statements by the representatives of ORG and of the Government may be summarised s follows :","Mr. PERSON , an NORP citizen , was born in GPE on DATE . In DATE , ORG was employed as an inspector for the \" Heimat \" Insurance Company in GPE . While thus engaged , he began , both on his own account and for the company , to negotiate loans to the company \u2019s clients and he finally became a full - time independent financial agent .","On DATE , he founded with CARDINAL other persons , PERSON and PERSON , the private limited company of ORG This company , whose registered office was in PERSON , had an initial capital of QUANTITY . Its activities consisted of transactions relating to real property , including negotiating and advancing loans secured on real property or otherwise , the management of property for reward , the negotiation of settlements in and out of court , as well as an estate agency and commission business . The company also carried on the business of wholesale and retail trading goods of all kinds , including in particular import and export . All CARDINAL members were directors . The company \u2019s business could be transacted by any CARDINAL of them , but in practice PERSON , who owned MONEY of the capital stock , managed the business alone .","For the transaction of contracts for loans , ORG advertised in the newspapers and sent circulars to solicitors and notaries . In his advertisements , he promised loans on particularly favourable terms which , however , he did not as a general rule observe . Moreover , he had CARDINAL of his assistants follow the list of court notices in order to ascertain the identity of property - owners threatened with foreclosure , to whom he then offered credit . Although LAW ( LOC CARDINAL.CARDINAL.CARDINAL gegen die ORG ) only allows in such cases a rate of commission equal to or PERCENT CARDINAL per cent , ORG usually obtained commission from MONEY to MONEY and sometimes even at MONEY .","Furthermore , CARDINAL of the CARDINAL members of the company , namely PERSON , held the business licence required by the law in these matters .","In connection with a civil action brought by ORG , the judge felt obliged , in view of the disclosure of certain of these business practices of the Applicant , to bring the facts of the case to the attention of ORG . The consequent investigations resulted in LAW at GPE charging the Applicant with aggravated fraud on CARDINAL counts under ORG , CARDINAL , CARDINAL ( d ) , CARDINAL and CARDINAL of LAW .","On DATE , these prosecutions were transferred , at ORG \u2019s request , to ORG ( PERSON f\u00fcr PERSON ) of GPE which acquitted him on DATE ( CARDINAL Vr CARDINAL\/CARDINAL ) . In its decision of DATE on a plea of nullity ( PERSON ) lodged by LAW , ORG ( Oberster Gerichtshof ) upheld ORG judgment on CARDINAL of the counts and referred the case back to the court for retrial on the other CARDINAL . On CARDINAL DATE , the court sentenced the PERSON to five months\u2019 imprisonment for perjury committed before ORG on DATE in connection with a charge of aggravated fraud ( Articles CARDINAL and CARDINAL sub - paragraph ( a ) of LAW ) . PERSON was acquitted on the other charges . By decision of CARDINAL DATE , ORG reduced that sentence to DATE , as a result of an appeal entered by PERSON .","However , the latter \u2019s Application is not directed against those proceedings .","Suspected of having committed offences against LAW ( Wuchergesetz ) , PERSON was arrested on DATE pursuant to a decision of ORG . On DATE , that court remanded him in custody ( Verwahrungshaft ) under LAW , paragraph CARDINAL , sub - paragraphs CARDINAL ( danger of absconding ) and CARDINAL ( danger of suppression of evidence - GPE ) of LAW . When he was brought before ORG at GPE on DATE , the PERSON stated that he had been informed of that decision against which he did not propose to appeal ( beschwerdelos ) , but asked that the file be transmitted to the Investigating Judge at PERSON .","This transmission took place and , on DATE , a preliminary investigation ( Voruntersuchung ) was opened by ORG against the Applicant who was suspected of having committed the crime of usury within the meaning of LAW , sub - section CARDINAL , of LAW and of LAW . At the same time , the court ordered the remand of the Applicant in custody ( ORG ) under LAW , paragraph CARDINAL , sub - paragraph CARDINAL ( danger of suppression of evidence - GPE ) and CARDINAL of the Code of Criminal Procedure . When he appeared before the Investigating Judge of ORG on DATE , PERSON stated that he had been notified of the CARDINAL above - mentioned decisions of the ORG , that he did not propose to appeal against them ( beschwerdelos ) and that he withdrew an application for his release which he had made earlier . He protested his innocence and noted that he would be interrogated in detail on the facts as soon as the charges were made against him .","At the request of the Applicant ( DATE ) the case was transferred to ORG of PERSON .","On DATE , PERSON was released provisionally on parole : he gave a solemn undertaking ( NORP ) , as provided for in LAW , but was not required to provide any security . His detention while on remand has thus lasted , without interruption , for DATE and DATE . According to TIME of that hearing , the PERSON made the following declaration :","\" I have been advised of the decision to release me on parole in pursuance of LAW and I hereby give the prescribed solemn undertaking in full knowledge of the consequences of breaking that undertaking . I acknowledge that I must henceforth inform the ORG immediately of any change of address . On my release I shall go to No . CARDINAL GPE , GPE XIII . \"","In DATE , further information were laid with ORG in GPE , alleging fraud , misappropriation of funds and profiteering by the PERSON and also by a solicitor , Dr. PERSON was suspected , in particular , of having , from DATE onwards , made a practice of demanding exorbitant security for loans from a large number of persons who were apparently in difficult financial circumstances and , further , of having , alone or together with other persons , obtained money from numerous other persons by fraudulent practices and of having misappropriated capital entrusted to him .","The Investigating Judge at ORG of PERSON had just begun extensive enquiries ( ORG ) when the PERSON submitted a request , on DATE , for the case to be transferred to ORG . Since the persons charged with him agreed to this , the case was duly transferred . The file was numbered CARDINAL d Vr CARDINAL\/CARDINAL .","In accordance with the provisions of NORP law ( st\u00e4ndige PERSON ) , the conduct of the preliminary investigation was assigned automatically , on CARDINAL DATE , to Investigating Judge PERSON , who was already dealing with other cases to which was added , on CARDINAL DATE , the case of PERSON , PERSON and others ( see the judgment of ORG in the PERSON case , ORG , DATE , Series A , p. CARDINAL ) .","On DATE , ORG of GPE decided :","- to continue the preliminary investigation in a series of charges relating to CARDINAL cases of aggravated fraudulent conversion ( Veruntreuung - Article CARDINAL of LAW ) , CARDINAL cases of aggravated fraud ( ORG , CARDINAL and CARDINAL of LAW ) , CARDINAL other case of fraud ( ORG , CARDINAL sub - paragraph ( d ) and CARDINAL of LAW ) and CARDINAL cases of the crime of usury ( Sections CARDINAL and CARDINAL , sub - section CARDINAL , of LAW ) ;","- to extend the preliminary investigation to CARDINAL charges relating to cases of aggravated fraudulent conversion ( Article CARDINAL of LAW ) , fraud ( Articles CARDINAL et seqq . of LAW ) and embezzlement ( LAW ( c ) of LAW ) ;","- to suspend , in accordance with LAW , the preliminary investigation in respect of CARDINAL or CARDINAL charges .","Under LAW , embezzlement is punishable by DATE severe imprisonment ( schwerer PERSON ) if the amount involved exceeds MONEY . Fraud and fraudulent conversion become crimes if the amount of the loss caused or so intended exceeds MONEY ( Articles CARDINAL and CARDINAL ( c ) of LAW ) . The penalty incurred is \" severe imprisonment \" from DATE where such amount exceeds QUANTITY , or , in cases of fraud , where the criminal has displayed \" exceptional audacity or cunning \" or where he is an habitual swindler ( Articles CARDINAL and CARDINAL ( c ) of LAW ) . The amounts mentioned above have been altered since : they are fixed at present at QUANTITY respectively . LAW lays down a sentence of from CARDINAL months\u2019 to one year \u2019s strict detention ( strenger Arrest ) ; a criminal who has practised usury professionally is punished by CARDINAL to CARDINAL years\u2019 imprisonment where several persons have suffered serious financial loss ( Section CARDINAL , sub - section CARDINAL , of LAW ) .","On DATE , the Applicant , who was then at liberty , was notified of the facts which were being held against him ; he stated that he did not propose to appeal against the prosecution and the extension of the preliminary investigation . The Investigating Judge then examined him in respect of an instance of aggravated fraud against PERSON .","On his release in DATE , PERSON had continued to manage his business . When the competent authorities refused to transfer the licence from PERSON to the company ORG , the CARDINAL other members left the company and ORG became the sole shareholder and director in DATE . He then transferred the seat of the company to GPE .","Having decided to change his occupation , he began to take flying lessons in DATE ; after having produced the documents required by law , he obtained his amateur pilot \u2019s licence on DATE and a restricted radio - telephonic certificate on DATE . In order to become a professional pilot , he made , by DATE , CARDINAL flights over a total distance of QUANTITY with landings on CARDINAL different airports including GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , PERSON , GPE , GPE , GPE , ORG , GPE , GPE , GPE , GPE , GPE , GPE , GPE ( GPE ) , GPE , NORP , GPE , GPE , GPE ( GPE ) , PERSON , GPE and GPE . In DATE , he piloted on CARDINAL occasions a plane carrying tourists between GPE , GPE , GPE , GPE and GPE .","On DATE , the Applicant sold his company and his name was removed from the commercial register .","At the request of ORG , the preliminary investigation was extended , on DATE , in respect of facts concerning PERSON , to offences under ORG CARDINAL , CARDINAL and CARDINAL ( c ) of LAW .","By order dated DATE and served on DATE , the Investigating Judge summoned the Applicant for DATE for further examination . PERSON , however , did not appear : on DATE , he had arrived in GPE on board a plane which he said belong[ed ] to his father ; he did not return to GPE until DATE .","From GPE in GPE , ORG had , however , sent , on DATE , a postcard to his father in which he said he could be reached at Cavalla airport . He asked his father to send him a telegram in case of need and to telephone his lawyer , Mr. PERSON , to get him to have the examination adjourned ( \" damit die PERSON klappt \" ) .","According to the statements made to ORG by the PERSON \u2019s counsel , Mr. PERSON , on DATE - and these were not disputed by the Government - Mrs. PERSON , his wife and secretary , had , on DATE , applied for an adjournment of the examination , and the Investigating Judge had granted her application . When she appeared before ORG as a witness on DATE , Mrs. PERSON , although not questioned on this point despite the request made by Mr. PERSON , stated that the Investigating Judge had accepted the excuses she had made to him verbally in explanation of the PERSON \u2019s non - appearance .","On DATE , immediately on his return , PERSON \u2013 again according to the undisputed statements of Mr. PERSON \u2013 accompanied Mrs. PERSON to the chambers of the Investigating Judge who , however , refused to examine the Applicant , saying that he did not have time to hear him and would carry out the examination in DATE .","Again on DATE , ORG made an application dated DATE to the Investigating Judge to enlarge the scope of the preliminary investigation opened against PERSON , to issue a warrant for his arrest and to remand him in custody under Articles CARDINAL , paragraph CARDINAL , sub - paragraphs CARDINAL and DATE , and CARDINAL of the Code of Criminal Procedure . ORG alleged that there was a danger of absconding ( Fluchtgefahr - Article CARDINAL , paragraph CARDINAL , sub - paragraph CARDINAL ) and a danger of repetition of offences ( Wiederholungsgefahr - Article CARDINAL , paragraph CARDINAL , sub - paragraph CARDINAL ) , because the Applicant had , by his unauthorised journey to GPE , broken the solemn undertaking given on his release ( see paragraph CARDINAL above ) and had committed other offences in DATE .","On DATE , the Investigating Judge ordered ORG \u2019s arrest .","The warrant ( PERSON ) stated that the PERSON had travelled abroad without permission of the court which constituted a breach of his undertaking of DATE ( paragraph CARDINAL above ) , and that he had committed further offences in DATE and DATE at the expense of borrowers .","The warrant emphasised that a breach of undertaking entailed the remand in custody of the person charged ( LAW in fine of LAW ) and that the Applicant \u2019s conduct after his release also proved that there was a danger of repetition of offences .","On DATE , the preliminary investigation against PERSON was extended , in respect of the facts concerning PERSON , PERSON and PERSON and PERSON , to offences under Articles CARDINAL et seqq , CARDINAL ( c ) and CARDINAL of LAW .","The PERSON was arrested on DATE . On DATE he was examined about his personal situation by a judge of ORG and was remanded in custody ( ORG ) under LAW , paragraph CARDINAL , sub - paragraphs CARDINAL ( danger of absconding ) and CARDINAL ( danger of suppression of evidence ) of LAW .","On DATE , ORG was notified that the preliminary investigation had been extended by orders of ORG and DATE ( see paragraphs CARDINAL and CARDINAL above ) . On DATE he was notified of that court \u2019s decision to remand him in custody ( Untersuchungshaft ) for the reasons stated in the warrant of arrest .","On DATE , the Applicant lodged a first appeal against this decision . He maintained that , on his release , he had informed the Investigating Judge of ORG of PERSON that he was obliged to travel a great deal as his residence was in GPE but his office in GPE , and that he had asked whether the court had to be advised in advance of each of these journeys . According to the PERSON , the Investigating Judge replied that he need only leave his address at his office or with his parents . PERSON claimed that he had always complied with this condition in respect of his numerous journeys in GPE and abroad , and in particular after he had obtained his pilot \u2019s licence . He added that he also travelled abroad frequently as a member of the NORP national judo team . In DATE he is also said to have informed the Investigating Judge of ORG that he intended to change his occupation and become a pilot . The judge had raised no objection , although he might have been expected to deduce that the PERSON had made , and planned to make , many flights in GPE and abroad . As to his failure to appear before the Investigating Judge on DATE , Mrs. PERSON had explained the reasons to the judge and after PERSON \u2019s return ( CARDINAL DATE ) is said to have also asked the Investigating Judge to set a new date for the examination to which the judge replied that he was overwhelmed with work at the time but would summon the Applicant after DATE . From these various circumstances PERSON deduced that he had not committed any breach of the solemn undertaking he had made on DATE .","ORG also claimed that he had sold his business by notarial deed on DATE on the advice of the Investigating Judge himself and had begun to earn his living as a pilot . From that he drew the conclusion that there was no danger of repetition of offences .","On DATE , the Investigating Judge sent to ORG a copy of the appeal , asking for a detailed opinion on the statements of ORG relevant to the danger of repetition of offences . The Judge added :","\" This on the lines of our conversation . The accused \u2019s contention - which is not yet proved - that he had given up the business of money - lender since DATE is irrelevant in this respect . \"","In answer to this request , ORG replied on DATE that it was of opinion that the reasons for detention continued to exist . Recalling that the subject - matter of the preliminary investigation opened against the Applicant had been extended in DATE ( see paragraph CARDINAL above ) and that following the laying of substantiated information ( fundierte ORG ) a further extension had been ordered in DATE ( see paragraphs CARDINAL and CARDINAL above ) , ORG concluded that a danger of repetition of offences remained . As regards the danger of absconding , ORG pointed out , inter alia , that since his release the Applicant had broken his solemn undertaking made in DATE , had obtained his pilot \u2019s licence , had gone to GPE without the consent of the judge , on board a plane belonging to his father , had gone on frequent journeys abroad , and had to expect , in the light of the results of the preliminary investigation , a heavy sentence which might run , under the relevant legislation , from DATE severe imprisonment ( schwerer PERSON ) . Furthermore , ORG asked ORG to close the preliminary investigation as soon as possible .","By decision of DATE , ORG of ORG instructed ORG to obtain from Judge PERSON , of PERSON , who had released PERSON in DATE , information on the directions which he had given to the Applicant on that occasion .","On DATE , PERSON submitted to ORG of GPE a letter which Mr. PERSON , the lawyer who had represented him at the time he was first remanded in custody in DATE , had written to Mr. PERSON on DATE . In reply to Mr. PERSON \u2019s questions , Mr. PERSON explained in that letter that , when PERSON was released in DATE , it was understood from the beginning that he would go to GPE . This was the reason why the Applicant had not been obliged to report to the authorities ( Meldepflicht ) at PERSON . Another reason why such an obligation had not been imposed on the PERSON was that he had undertaken to leave his address at Mr. PERSON \u2019s office so that he could be contacted within DATE . These arrangements had in fact worked satisfactorily until the case had been transferred to GPE . In DATE , Miss PERSON , GPE \u2019s secretary , had always kept Mr. PERSON informed of the whereabouts of her employer .","In a written statement of DATE made to Judge PERSON ( see paragraph CARDINAL above ) , Mr. PERSON , formerly Investigating Judge at ORG , emphasised for his part that :","- if his memory were correct , there had been no mention in DATE , at the time of the release of PERSON , of anything except his address at GPE ;","- it was nonetheless possible that the Applicant had informed him that he would not be able to give immediate notice to the court of each of the many journeys he would have to make ;","- even if this were true , Mr. PERSON had certainly not replied to PERSON that it would be enough for him to leave his address at his office at PERSON or with his parents at GPE ; but more likely he had told him , as was usual in such cases , to ensure that summonses from the court reached him as soon as possible ; this reply did not mean that the court was under a duty to find out for itself the whereabouts of the Applicant if he were needed ;","- that Mr. PERSON had not insisted , however , on being informed of every departure or return of the person charged - which was , anyway , in his opinion , a practice unknown at ORG .","On DATE , Judge PERSON asked that Mr. PERSON - released beforehand by PERSON from the obligation to observe professional secrecy - be questioned on the following points :","( a ) what persons were present at the time of PERSON \u2019s release , when mention was made of his going to GPE ( see paragraph CARDINAL above ) ?","( b ) when it was decided to waive the obligation for ORG to notify the authorities of every journey , had it been specified that the waiver also covered journeys other than those between GPE and GPE and , for example , journeys abroad ?","On DATE , Mr. PERSON was heard as a witness by a judge of ORG of PERSON and stated that he had not attended , on DATE , at the release of PERSON , but PERSON had told him of his intention to go to GPE , saying that the Investigating Judge was aware of it . Mr. PERSON added that Judge PERSON had asked him , on DATE , to see to it that the Applicant would be present when he was needed ; furthermore , PERSON \u2019s secretary kept herself informed regularly through Mr. PERSON about the progress of the proceedings . On DATE and DATE , Judge PERSON had asked Mr. PERSON to have his client attend and PERSON did in fact appear within the prescribed times . At the request of the Applicant , Mr. PERSON notified , on DATE , ORG of GPE that PERSON intended to go to GPE : the court made no objection . Express permission to travel was never given .","On DATE , ORG ( Ratskammer ) of ORG of GPE refused the appeal of CARDINAL DATE ( see paragraph CARDINAL above ) . The Chamber held first that PERSON had gone to GPE without obtaining permission from the Investigating Judge . Basing its findings on the depositions made by PERSON and PERSON , it came to the conclusion that no general permission had been given by Mr. PERSON to the LAW to cover travel in GPE or abroad . There was no doubt that PERSON had always returned from his travels but the ORG considered that this fact was not relevant : in its view , it was clear from LAW that any breach of the solemn undertaking was liable to entail the remand in custody of the person concerned .","For reasons very close to those set out in the unfavourable opinion given by ORG on DATE ( paragraph CARDINAL above ) , the decision of DATE found , in addition , that there was a danger of absconding and a danger of repetition of offences . On this last point , ORG considered that it was of little importance to know whether PERSON had in fact sold his business on DATE .","The Applicant attacked this decision on DATE . He began by stressing the fact that neither he nor his lawyer had yet had an opportunity to consult the case - file ( PERSON ) and that they were therefore only able to give their views on the results of the enquiry and the preliminary investigation in the light of the elements contained in the decisions of the ORG .","ORG furthermore maintained that as far as he could recall the only ground for his first remand in custody had been a danger of suppression of evidence and that , on the occasion of his release , the Investigating Judge had reminded him in the first place that it was essential not to suppress any evidence and in particular not to attempt to interfere with the witnesses . Accordingly , he considered he had not broken his solemn undertaking of DATE . On this topic , he returned to the arguments put forward in his appeal of CARDINAL DATE ( see paragraph CARDINAL above ) . Emphasising that he was unaware of the contents of Judge PERSON \u2019s statement ( see paragraph CARDINAL above ) , he also alleged that that judge had said to Mrs. PERSON , in DATE , that in his view the Applicant had not broken his word . PERSON complained , moreover , that Mrs. PERSON had not been heard as a witness in her interviews of CARDINAL and CARDINAL DATE with Judge PERSON ( see paragraph CARDINAL above ) . He added that she had asked the judge , on DATE , not to fix the Applicant \u2019s examination in CARDINAL days\u2019 time because PERSON wanted to go to ORG on DATE , and that Judge PERSON had made no objection .","In the same context , the Applicant specified that , from DATE , he had made CARDINAL journeys abroad to participate in international judo competitions - in which sport he had been several times NORP champion until DATE ; almost all the newspapers had reported at the time his successes and defeats . Again , certain civil actions brought against him by persons who claimed to be victims of his activities had obliged him , he said , to make journeys in his own country . He considered he was entitled to assume that the Investigating Judge would learn of these absences from the press and from official documents . On this point the Applicant referred to files CARDINAL Cg CARDINAL\/CARDINAL ( ORG of GPE ) and CARDINAL C CARDINAL\/CARDINAL ( ORG Hietzing ) as well as to the information laid by GPE , PERSON and PERSON . ORG concerned in the case would , for his part , have known of the above - mentioned journeys from the hearings which had taken place on DATE in the case reference CARDINAL Vr CARDINAL\/CARDINAL , ( see paragraph CARDINAL above ) with which he was also dealing . PERSON submitted that all these facts established that he had never believed it necessary to have permission to travel from the judge to whom he had never ceased , in any event , to be available .","The Applicant further complained that ORG had found , in its decision of DATE , that there was a danger of absconding and yet the warrant of arrest was based solely on the breach of the undertaking and on the danger of repetition of offences . In his submission , this way of proceeding had prejudiced the right of defence because he had not had an opportunity , in his appeal of CARDINAL DATE , to put forward arguments to establish that there was no danger of his absconding . In his view , there was no such danger in this case . On this point , PERSON recalled that he had returned from each of his numerous journeys and , particularly , that he had appeared before ORG of GPE on DATE in the case CARDINAL Vr CARDINAL\/CARDINAL ( see paragraph CARDINAL above ) although he had to expect , according to the indictment , a sentence of imprisonment from DATE . As to the new complaints made against him , he stressed that he had been informed of them DATE before his second arrest . He added that the sentence to be foreseen in the present case was the same as in DATE . The fact that he was preparing the professional pilot \u2019s examination was , he also maintained , a further guarantee : once he obtained the necessary licence he could pilot only NORP aeroplanes ; the cost of his professional training - which amounted to CARDINAL schillings and which his father intended to cover by the sale of his aeroplane - constituted a real security . The PERSON also emphasised that his amateur pilot \u2019s licence would expire on DATE and he could not renew it unless he recovered his liberty before that date .","On the question of the danger of repetition of offences , PERSON alleged , not without protesting his innocence that all the facts subsequent to his release were tied up with his activities as a financial agent , which activities he had ceased on DATE .","Finally , he pointed out that he had not yet been examined about a great many of the facts alleged against him and especially that he had not been heard on the merits of the case since his second arrest .","ORG , to which ORG had referred the appeal for opinion , replied on DATE :","- that the Prosecutor who had attended the hearing on DATE was not familiar , at that time , with the file in the present case which was dealt with by CARDINAL of his colleagues until DATE and therefore the Applicant \u2019s statements on this point were shown to be incorrect ;","- that ORG had committed his first offences even before he began to work in his company ;","- that detailed inquiries were to be made into the circumstances of the purchase of the aeroplane and the sale of the company ORG , as well as into the accused \u2019s debts and the expenses of the professional training which he had described .","The Applicant was in fact examined on these matters by the Investigating Judge on DATE .","On DATE , ORG ( Oberlandesgericht ) of GPE refused the appeal of DATE . The court did not find it necessary to go into the question whether or not PERSON had broken his solemn undertaking given on DATE : contrary to the view held by ORG , it considered that a breach of this nature could not constitute specific grounds for remand in custody and , on this point , referred to a decision by ORG of DATE . Consequently , ORG concentrated entirely on determining whether there was any danger of the Applicant absconding and any danger of repetition of offences . On the first of these matters , it decided that no danger existed for the reason that , during a period of CARDINAL and a half years , the Applicant had complied with every summons issued by ORG and had returned from all his many journeys although he held a pilot \u2019s licence , had an aeroplane at his disposal and was aware that the accusations against him had been aggravated . On the other hand , the court confirmed the decision of DATE as regards the danger of repetition of offences . It noted in effect that according to the well - substantiated information ( durchaus fundierte ORG ) laid by PERSON and PERSON , PERSON , PERSON and PERSON , PERSON had , DATE , either alone or in concert with PERSON and PERSON , committed further punishable acts in connection with the granting of loans , thereby causing a loss of MONEY to the persons concerned . The court therefore concluded that PERSON might , if released until the final result of the criminal proceedings in question ( \" bis PERSON rechtskr\u00e4ftigen PERSON des vorliegenden PERSON \" ) , commit further offences on the lines of those he had committed over DATE . Although the Applicant had theoretically withdrawn from business , the court held that the danger was merely increased thereby : deprived of his previous means of livelihood , PERSON might be tempted to have recourse to fraudulent practices in order to maintain his customary standard of living .","On DATE , ORG , in a letter to the President of ORG , described in detail his business career and , in particular , the preparations he had made to take up the occupation of professional pilot . He stressed , in particular , that he had sufficient means to enable him to complete his pilot \u2019s training because he had obtained MONEY as the proceeds of sale of his company and hoped to get QUANTITY for his father \u2019s aeroplane which he intended to sell . While offering to provide bail if he was set free , PERSON declared that he was ready to give a solemn promise not to engage any more in business activities . Finally , he complained that he had never had an opportunity to explain his case to Judge PERSON , and he asked the President to allow him to do this before a member of ORG .","A perusal of the file does not show whether the President of the ORG replied to this letter .","On DATE , the Applicant lodged a second application for provisional release . While he recognised that he had lost his livelihood by selling his business , he stressed that he hoped to obtain a professional pilot \u2019s licence and that his father had agreed to provide for his maintenance ; he claimed this proved that there was no danger of repetition of offences . He added that he would be unable to take up flying as a career if his detention were prolonged . He also offered to provide security in an amount commensurate with his assets and with those of his family .","This application was accompanied by a letter addressed to Mr. PERSON on DATE , by the PERSON \u2019s father , PERSON . The latter showed his readiness , if his son were released , to pay for his maintenance and for his professional training as a pilot .","On DATE , ORG supplemented his application by explaining in detail the prospects he saw for a pilot in GPE ; he referred in particular to a report in the \" Express \" newspaper on the need for GPE to recruit pilots for lack of NORP pilots . The PERSON renewed his offer not to engage any more in business activities and declared himself ready to produce to the court within a reasonable time a contract of employment as a pilot .","On DATE , ORG , consulted by ORG , expressed its opposition to the release of the Applicant on the grounds that , in this case , there was a danger of repetition of offences . The ORG referred on this point to the decision of ORG ( paragraph CARDINAL above ) and to the discovery made in DATE of other serious misdemeanours on the part of GPE since his release . Further , the ORG also observed that PERSON was in debt and had had to bring civil action , which was still pending , for the proceeds of the sale of his company .","The Investigating Judge refused the application on DATE . He pointed out , in substance , that the situation had not altered in the Applicant \u2019s favour since the decision of CARDINAL DATE ; that , on the contrary , the danger of repetition of offences had become more acute as it had been learned that in DATE PERSON had been instrumental in causing a certain PERSON to lose CARDINAL schillings ; that PERSON was in debt and had no means of his own .","The Investigating Judge did not express views on the offer to provide bail .","The Applicant appealed against this decision on DATE . Relying on the above - mentioned letter from his father ( paragraph CARDINAL above ) , he contended that the circumstances had indeed changed in his favour . He added that , according to case - law of ORG , only clear indications could be used to establish that a danger of repetition of offences existed . It seemed to him , then , that there were such indications in the present case because he had given up his activities as a financial agent and the PERSON case dated from DATE .","On being consulted once again , ORG gave an unfavourable opinion on DATE . The ORG considered , in effect , that the existence of a danger of repetition of offences resulted definitely from the numerous punishable acts committed by ORG since DATE . In this context , the ORG further recalled that the accused had negotiated loans on a large scale even before beginning to work in his company . The ORG finally suggested that further inquiries into the financial position of the Applicant and his father be commenced , and also into the circumstances surrounding the alleged sale of the aforesaid company .","The Judge \u2019s Chamber of ORG of GPE refused the appeal on DATE . Referring to the reasons given by ORG on DATE , and by the Investigating Judge on DATE , it added that there was strong reason to suspect that PERSON had continued his operations in DATE . According to information received by the court on DATE , the Applicant had persuaded PERSON and PERSON that they would make an excellent bargain if they purchased an aeroplane : as a result of this transaction , Mrs. PERSON had lost her entire fortune , consisting of a house valued at MONEY , while the father of ORG had acquired ownership of the plane . ORG noted that as the CARDINAL women claimed ownership of the aeroplane PERSON could not sell it if he wished to do so to support his son and pay for his professional training as a pilot . The ORG did not take any decision on the offer made by the Applicant to provide security .","It had been decided on DATE to open a preliminary investigation in the aeroplane case which was the subject of separate prosecutions ( CARDINAL d Vr CARDINAL\/CARDINAL ) .","On DATE , and again on CARDINAL and DATE , PERSON appealed against the decision of DATE . Recalling that he had sold his company on DATE , he drew the conclusion that there was no danger of repetition of the offences . He also stated that he had CARDINAL schillings available of which CARDINAL came from the sale of the aeroplane and CARDINAL were in the form of a bill of exchange outstanding against the purchase of the company ; he deduced from this that his upkeep and his professional training were assured . He complained in particular that the Investigating Judge and the Judge \u2019s Chamber had not taken into account the aforementioned letter from his father ( paragraph CARDINAL above ) . After describing in detail the way in which he was preparing for the pilot \u2019s examination ( paragraph CARDINAL above ) , he stressed that he had almost finished his professional training and that due to the dearth of professional pilots in GPE , he would have no trouble in quickly finding employment in that profession . From this he reasoned that there was no danger of repetition of offences . In order to offer in this respect additional guarantees , he declared himself ready to undertake that , in the event of his release , he would carry on no business activities , he would report regularly to the court on his occupation and he would produce to the court his contract of employment .","ORG refused the appeal on DATE . It considered that neither the Applicant \u2019s proposed change of occupation nor the time he wished to devote to training as a pilot was likely to avert the danger of repetition of offences . It further stressed that DATE after the contested decision , a lawyer at PERSON , Mr. PERSON , had laid a charge against PERSON of having caused , by fraud , to his clients PERSON and PERSON of ORG , a loss of MONEY in connection with the granting of a loan .","On DATE , the Applicant lodged a disciplinary complaint ( PERSON ) against the conduct of the proceedings by ORG and supplemented it on DATE . On CARDINAL DATE , he lodged a second complaint on the grounds that the competent authorities had not yet acted on DATE .","On DATE - somewhat DATE after the ORG had been lodged with ORG ( DATE ) - St\u00f6gm\u00fcller lodged a further disciplinary complaint with the President of ORG . He complained that Judge PERSON was dragging out the investigation , had not given him a hearing during CARDINAL months\u2019 detention , except on CARDINAL charges , treated him worse than other persons detained with him , had not bothered about the other persons implicated in his case , had taken reprisals against him and had been suborned by the accomplices of the Applicant in other criminal cases .","His application to the President of the ORG was not successful \u2013 no more than were his other disciplinary complaints - and , on DATE , PERSON applied to ORG which , on DATE , dismissed his complaints after detailed examination .","Meanwhile , and more specifically on DATE , the Applicant had sought , in addition to the joinder of the proceedings CARDINAL d Vr CARDINAL\/CARDINAL and CARDINAL d Vr CARDINAL\/CARDINAL ( paragraphs CARDINAL and DATE above ) , the withdrawal of the other judges under the jurisdiction of ORG of GPE and the transfer of the case to ORG of GPE . In effect , he accused the afore - mentioned judges of bias . On this point , he alleged that an official counsellor at ORG was implicated ( verwickelt ) in the case CARDINAL d Vr CARDINAL\/CARDINAL and that CARDINAL of those who was charged with him was the son of a magistrate . He also emphasised that the prosecutions had already been going on for DATE and that he was in detention for DATE without having been heard by the Investigating Judge except on CARDINAL points of minor importance .","ORG refused the application for transfer and then , on DATE , dismissed the request for the withdrawal of the judges of ORG of GPE . The motion for the withdrawal of the other judges under the jurisdiction of ORG was dismissed by ORG on DATE . On DATE and CARDINAL DATE , these various decisions were transmitted to the Investigating Judge who , in accordance with the legislation in force , had suspended the preliminary investigation pending the result of the proceedings for the withdrawal of judges .","On DATE , ORG had made an appeal based on the LAW . Emphasising that the proceedings against him had already continued for DATE and that he had spent DATE in custody while on remand without having been heard by the Investigating Judge except on CARDINAL out of the CARDINAL transactions in issue , he claimed to be a victim of violations of Articles CARDINAL ( CARDINAL ) ( c ) and ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL - CARDINAL-c , article CARDINAL , article DATE ) of the Convention . He further complained that he had been prevented by ORG from voting at parliamentary elections .","On DATE , ORG ) declared that it had no jurisdiction in the matter for the reason that the appeal was directed against judicial bodies acting in the normal course of their duties .","On DATE , the Investigating Judge ordered the joinder of the proceedings CARDINAL d Vr CARDINAL\/CARDINAL and CARDINAL d CARDINAL\/CARDINAL ( paragraph CARDINAL above ) .","After consulting ORG through Dr. PERSON , the PERSON lodged , on DATE , a third application for provisional release . He claimed that , as a result of DATE in all - which he had spent in custody his business relations had been broken off and this gave greater credibility to his stated desire to give up his former occupation . He added that he would be in danger of losing his pilot \u2019s licence if he was not speedily released and that in any event he had served in advance a large part of any sentence which might be imposed on him . According to him , the career which he hoped to take up would not give him any opportunity of committing offences of the type with which he was now charged . PERSON agreed , however , that employment as a pilot might raise suspicions that he would abscond . On this point he claimed that he had no intention of evading the proceedings instituted against him , as this would be pointless for a number of reasons . As proof of his good faith he nevertheless offered a security of MONEY , including the personal security of CARDINAL relatives for a sum of QUANTITY each .","On being consulted by ORG , ORG agreed , on DATE , to the conditional release of the Applicant . The ORG stated its agreement with ORG \u2019s argument that there was no longer any danger of repetition of offences but there was a danger of his absconding . In this context , the ORG stressed that the investigation had shown that there were serious charges and that a heavy sentence might therefore be expected ; it also recalled that ORG intended to take up a career as a pilot . The ORG took the view therefore , that only release accompanied by the above - mentioned guarantee was acceptable .","On DATE , Mr. PERSON stated before ORG that this offer of security had been a purely formal one , made with ORG agreement ; its sole purpose was to enable the court to release the Applicant , whose family was in fact completely penniless .","However that may be , the Investigating Judge decided , on DATE , to release the Applicant on bail . He pointed out that , as the Applicant had broken off his business connections for DATE , the danger of repetition of the offences had clearly ceased to exist , but that there was thenceforth a danger of absconding ; he added that this last danger could be overcome by the making of a solemn undertaking and the deposit of security .","DATE , ORG of ORG of GPE fixed the amount of the security at QUANTITY . PERSON was released on CARDINAL DATE after giving the solemn undertaking provided for in LAW . His second period in detention therefore lasted , without interruption , for DATE and DATE . According to the minute prepared on the occasion of his release , the Applicant declared :","\" I acknowledge that I have been released on parole under LAW . I have been informed of the consequences of a breach of my solemn undertaking ; I will reside at FAC , GPE . If I am absent from that place of residence for DATE - which may happen as I intend to work as a pilot - I will give prior notice to the ORG . \"","On DATE , ORG acknowledged receipt of the required security .","When Mr. PERSON , the Investigating Judge , appeared before ORG as a witness on DATE , he stated in this connection :","\" Once St\u00f6gm\u00fcller had decided to change his occupation from moneylender to aviator , the danger of new offences ceased to exist . If he ceases to be a moneylender , he can no longer commit offences of the type with which he is charged . On the other hand , his wish to become a pilot raises again the danger that he may abscond , for as a pilot CARDINAL often spends more time abroad than at home .... Because of the change of occupation , there was no further danger of repetition of offences and the provision of bail averted the danger of absconding ... \" .","DATE . In DATE , Judge PERSON announced that the preliminary investigation had been completed and he sent to ORG the case record ( Articles CARDINAL and CARDINAL of LAW ) which ran to CARDINAL pages .","When they appeared before the ORG , the parties agreed that the facts which had to be examined by the organs responsible for the investigation were highly complex . The difficulty lay essentially in the number of the operations in issue .","The preliminary investigation was originally concerned with CARDINAL commercial transactions effected by the Applicant , of which CARDINAL involved loans , almost all of which had been granted to farmers threatened with foreclosure . Finally , CARDINAL transactions remained to be dealt with . The investigation concerned a series of offences of fraud ( ORG , CARDINAL ( d ) , CARDINAL , CARDINAL ( d ) and CARDINAL of LAW ) , fraudulent conversion ( Articles CARDINAL and CARDINAL of LAW ) , embezzlement ( LAW ( c ) ) of LAW ) usury ( Sections CARDINAL , sub - section CARDINAL , and CARDINAL , sub - section CARDINAL of the PERSON ) , and a number of minor offences and misdemeanours ( PERSON and LOC ) . The offences with which PERSON was charged had involved their victims in a loss of considerably QUANTITY .","These offences had been committed throughout GPE but particularly around GPE in GPE . As PERSON does not lie within the jurisdiction of ORG , ORG could not carry out all the necessary enquiries personally ; for CARDINAL facts and items of evidence letters rogatory had to be issued . In order to simplify the procedure , Mr. PERSON spent DATE in GPE in DATE and DATE ; with the agreement of the competent authorities , he there consulted the land registers and himself questioned CARDINAL witnesses at GPE , TIME at PERSON i m GPE and CARDINAL at Braunau .","A total of CARDINAL witnesses - CARDINAL of them during the period of GPE \u2019s second detention while on remand ( DATE to CARDINAL DATE ) - and QUANTITY persons charged were heard during the preliminary investigation .","According to information supplied to the ORG by the ORG on DATE , CARDINAL DATE and DATE were devoted to hearing the Applicant . However , CARDINAL interrogations were recorded in writing , namely , CARDINAL DATE and DATE , CARDINAL in DATE ( CARDINAL of these after PERSON was arrested for the second time ) , CARDINAL in DATE , CARDINAL in DATE ( up to DATE , the date of his release ) , CARDINAL in DATE and CARDINAL in DATE . TIME CARDINAL pages . According to the statement submitted to the Commission by the Government no record was kept of any interrogation of the Applicant DATE and DATE , nor between DATE and CARDINAL DATE nor DATE and DATE .","According to TIME of the interrogations which the Government submitted to ORG DATE , PERSON was , DATE and DATE , the date of his second release , heard on CARDINAL of the numerous allegations which he had to face . The minutes drawn up during this period total CARDINAL pages .","When the lady President of ORG asked him , on DATE , why the Applicant had not been interrogated more often in the course of his second remand in custody , Judge PERSON stated , in particular , as follows :","\" ... I would say that ORG is the most intelligent person I have come across in DATE ( experience ) .","\" ... At first I sat down with ORG in the prison ... and began to go over the facts with him . After DATE I realised that , because of his intelligence , this method was not getting me anywhere with him . It is , of course , usual for a judge ... to examine the person charged ... and then hear the witness ... That was not possible in GPE \u2019s case . I interrogated him ... PERSON insisted that the minutes should contain only his own words . He objected to any kind of summary . I had to accept everything he told me , without being able to raise the slightest objection as to whether this or that statement could be correct , for I had not the necessary testimony ... I came to see that by proceeding in this way with PERSON I was not making any progress in the case . In the last analysis , that is why I stopped interrogating him , I wanted first to collect the evidence ... \" .","During his second period of detention , GPE brought CARDINAL applications and appeals , of which CARDINAL or CARDINAL were disciplinary complaints against the Investigating Judge and were all dismissed as ill - founded . The judge informed ORG that in his view this was a deliberate manoeuvre designed to thwart his efforts . In this connection , he mentioned a letter which the PERSON had sent to his counsel on DATE . ORG suggested in the letter that Mr. PERSON should employ the good offices of a colleague , Mr. PERSON , to negotiate an agreement with the Investigating Judge : while reserving the right to pursue his applications for release , he said that , if certain concessions were granted , he would undertake not to present any more applications and appeals despite the legitimacy of his complaints ; meanwhile , he added , he would continue to employ the tactics which he had agreed with his counsel .","With ORG permission , the Government produced this document on DATE . In its ORG of CARDINAL DATE , ORG noted that Judge PERSON , who was responsible for supervising the PERSON \u2019s correspondence , had read the letter in question and had had a photocopy of it made before transmitting it to Mr. PERSON ; in these circumstances , the ORG felt it could not take it into consideration .","It also appeared in fact that , in order to speed up proceedings and following an exchange of views between counsel for the defence and the Investigating Judge , ORG withdrew , on DATE , an appeal which he had lodged on DATE against a decision ordering the inclusion in the file of a letter he had written to his parents .","In DATE - CARDINAL , the PERSON \u2019s pilot \u2019s licence and his restricted radio - telephonic certificate were withdrawn by the competent authorities following his above - mentioned conviction of CARDINAL DATE ( paragraph CARDINAL above ) .","On DATE , that is a little less than DATE after the adoption of ORG ( DATE ) , ORG at GPE completed the preparation of the indictment ( PERSON , LAW ) .","CARDINAL pages long , this document was directed against CARDINAL persons , and PERSON was named first ; a fourth person charged had died in the meantime .","ORG , for his part was indicted for :","- aggravated usuary ( Sections CARDINAL , sub - sections CARDINAL and CARDINAL , and CARDINAL , sub - section CARDINAL , of LAW ) in CARDINAL instances ;","- the misdemeanour of usury ( LAW , sub - section CARDINAL , of LAW ) in CARDINAL instances ;","- aggravated fraud or complicity in aggravated fraud ( Articles CARDINAL , CARDINAL ( d ) , CARDINAL , CARDINAL ( d ) , CARDINAL and CARDINAL of LAW ) in CARDINAL instances ;","- the crime of fraudulent conversion ( ORG CARDINAL and CARDINAL of LAW ) in CARDINAL instances ;","- an offence against LAW , penultimate paragraph , of LAW .","The amount of loss alleged against ORG exceeded a MONEY .","According to the indictment , CARDINAL of the QUANTITY acts therein referred to dated from before the first release of the Applicant ( DATE ) . The CARDINAL others had occurred in DATE , DATE and DATE ; however , they only related to CARDINAL groups of persons out of a total of CARDINAL . It is clear , in effect , that the charges relating to certain facts were severed and then dropped ( LAW , CARDINAL and DATE , paragraph CARDINAL , of LAW ) . This was so , in particular , as regards the charges in relation to the Weiskopf case ( paragraph CARDINAL above ) .","ORG asked , in particular , for the opening of the trial before ORG of GPE sitting as a NORP - Judge court , the arraignment of the accused persons , CARDINAL witnesses to be summoned and the depositions of CARDINAL other witnesses to be read , the reading of the opinions of CARDINAL experts and of a series of other documents .","The trial opened on DATE . ORG of GPE heard DATE witnesses and read the depositions of QUANTITY others as well as the opinions of CARDINAL experts .","On DATE , the court sentenced PERSON to DATE severe imprisonment , with TIME of \" sleeping - hard \" ( hartes Lager ) and DATE fasting DATE , on CARDINAL counts of aggravated usury , CARDINAL count of usury , CARDINAL counts of aggravated fraud and CARDINAL counts of aggravated fraudulent conversion . In application of LAW , the court took into account the sentence imposed on the Applicant in DATE ( paragraph CARDINAL above ) . Furthermore , PERSON was ordered to pay to CARDINAL of his victims sums totalling CARDINAL schillings in damages and the rights of the civil plaintiffs were expressly reserved in all other respects .","The PERSON was acquitted on the remaining counts . Under DATE ( a ) of LAW , he was granted remission of sentence for the duration of the periods he had spent in provisional detention and in detention while on remand .","In fixing the amount of the remission , the court took the view that in this case there was , notwithstanding certain aggravating circumstances - the extent of the loss caused and the number of offences established - a conjunction of \" very important and overriding \" extenuating circumstances ( Article CARDINAL ( a ) of LAW ) . In this respect , the court noted first that a lot of time had elapsed between the commission of the offences and the date of judgment ; it acknowledged , in particular , that PERSON was only in part responsible for the fact that DATE had gone by since the opening of the preliminary investigation . The court also stressed that the PERSON , who had been DATE when he began his criminal activities , had committed no more offences since DATE , but on the contrary had , on his release chosen an \" ordinary \" career ( b\u00fcrgerlich ) , had been of irreproachable conduct , had founded a family and had succeeded in reintegrating himself into society .","ORG did not bring an appeal ( GPE ) , nor move to have the judgment set aside ( PERSON ) .","Some time after his release , PERSON took up residence in GPE where he became a ORG instructor and had obtained the required certificate . However , he returned recently to his own country where he began to serve his sentence on DATE .","In his introductory ORG dated DATE ( No . CARDINAL ) , PERSON submitted :","- that his arrest and detention had been effected without \" reasonable suspicion \" of his having committed an offence and without its being \" reasonably considered necessary \" to prevent his committing an offence ( LAW ) of the Convention ) ( article CARDINAL - CARDINAL-c ) ;","- that he had not been brought to trial \" within a reasonable time \" or released pending trial ( LAW ) ( article CARDINAL ) ;","- that he had not been granted \" a fair and public hearing within a reasonable time \" ( LAW ) ;","- that the manner in which the preliminary investigation had been carried out did not conform with the presumption of innocence ( Art CARDINAL ( CARDINAL ) ) ( article CARDINAL - CARDINAL ) ;","- that he had not been informed promptly and in detail of the nature and cause of the accusation against him ( LAW ) ( a ) ) ( article CARDINAL - CARDINAL-a ) ;","- that he had not been permitted to examine or have examined witnesses against him ( LAW ( article CARDINAL - CARDINAL-d ) ;","The PERSON requested :","- that he be released , subject , if need be , to the sole condition that he should not exercise any other occupation than that of pilot ;","- that he should have an opportunity of examining the witnesses against him .","On DATE , the Applicant also claimed that the Investigating Judge had become biased against him ( Article CARDINAL ( CARDINAL ) ( article DATE ) of the Convention ) .","On DATE , the Commission declared inadmissible , as manifestly ill - founded , this last complaint and that grounded on LAW ) ( article CARDINAL - CARDINAL-c ) ; the Commission deferred its decision as to the admissibility of the remainder of the Application .","During an oral hearing held before the ORG on DATE , Mr. PERSON stated that he maintained only the claim in regard to the alleged violation of LAW ) ( article CARDINAL ) . On DATE , the Commission decided that the ORG was admissible in respect of that provision ; it decided not to avail itself of its competence to examine further , ex officio , the allegations which had been withdrawn by the PERSON \u2019s counsel ( LAW ( article DATE , article CARDINAL ) . On DATE , it deemed it was not required to resume the examination ex officio of the allegation relating to the duration of the criminal proceedings instituted against ORG ( article DATE ) : \" reasonable time \" ) . ORG did not , however , exclude the possibility that the period of DATE which had elapsed since its decision of CARDINAL DATE might be a factor such as would justify the lodging of a further ORG .","Following the decision that part of the ORG was admissible , the ORG established the facts of the case and sought in vain to reach a friendly settlement ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) .","Before the ORG and ORG , the PERSON stated exactly how he viewed the problem raised in this case in respect of LAW ) ( article CARDINAL ) . In his view , it was not enough to note that he had obtained his freedom on CARDINAL DATE ; the question was whether he had been given his freedom in good time or after an excessively long delay . His CARDINAL periods of detention while on remand - covering a total period of DATE and DATE - could not , in his submission , be considered \" reasonable \" within the meaning of the Convention . PERSON stated that under NORP law the penalty for the offences with which he was charged was not less than six months\u2019 imprisonment and nor more than ten years\u2019 penal servitude and in the event of his being found guilty he expected a sentence of DATE . He deduced from this that his detention constituted an anticipated sentence . According to him , the course of the preliminary investigation had been subject to abnormal delays which he attributes to CARDINAL reasons : Judge PERSON was dealing with another very complex case ( PERSON , PERSON and accomplices ) ; furthermore , the Judge had begun by summoning a large number of witnesses instead of first hearing the Applicant in accordance with normal practice . PERSON also claimed that during his second period of detention he had been questioned CARDINAL times and on CARDINAL of the CARDINAL or more operations in issue . He claimed that his detention had in fact been used as a means of pressure : that it was hoped by prolonging the detention to prevail on him to confess . The Investigating Judge was said to have had an illuminating conversation on this subject with Mr. PERSON in DATE . The PERSON conceded that his application for the withdrawal of judges had had the effect of suspending the preliminary investigation ( see paragraph CARDINAL above ) . He maintained , however , that he had been in custody for DATE before he had brought these applications and explained he had done so because he was exasperated by the slow progress of the proceedings ; he said that the competent courts could , in any case , have taken a decision on these applications within DATE .","Referring also to LAW ) ( article CARDINAL - CARDINAL-c ) of the LAW , the Applicant claimed that his detention had ceased to be \" lawful \" ( \" r\u00e9guli\u00e8re \" ) on DATE , the date on which ORG of GPE had agreed that there was no danger of his absconding ( see paragraph CARDINAL above ) . As to the danger of repetition of offences , PERSON disputed its existence : he said that on DATE , that is , DATE before his second arrest , he had sold his business and given up all commercial activity such as might possibly justify fears of this danger . He pointed out finally that the reasons which had led the authorities to release him in DATE corresponded exactly to the arguments put forward by him DATE in his own applications and appeals . He therefore concluded that he ought to have been released in DATE .","DATE . After the failure of ORG attempt to reach a friendly settlement , the ORG drew up the ORG provided for in DATE ( article CARDINAL ) of the Convention . This document was adopted on DATE and transmitted to ORG DATE . The Commission states its opinion therein , by CARDINAL votes against CARDINAL , that LAW ) ( article CARDINAL ) of the LAW has been violated in the present case . The ORG contains CARDINAL concurring opinions and CARDINAL dissenting opinions .","Arguments of the ORG and the Government","In its ORG of CARDINAL DATE , the ORG followed the method known as that of the CARDINAL \" criteria \" or \" factors \" which it adopted in the PERSON and PERSON cases ( see e.g. Publications of the Court , Series A , PERSON case , judgment of DATE , pages CARDINAL - CARDINAL ) . After applying each of these criteria to the present case , the ORG considered them as a whole . The factors whose consideration , according to the ORG , led it to find \" unreasonable \" the nature of the length of the detention on remand in issue , i.e. criteria ORG . CARDINAL , CARDINAL and DATE , appeared to it to weigh more heavily than those telling in the opposite direction . By a majority of CARDINAL to CARDINAL , the Commission expressed the opinion that there had therefore been a violation of LAW ) ( article CARDINAL ) of the Convention .","At the hearings of CARDINAL and CARDINAL DATE , ORG Delegates based their arguments essentially on the judgments which the ORG had given in the meantime in the PERSON and PERSON cases , but also referred frequently to ORG and in particular to the majority opinion .","Referring to paragraph CARDINAL of the section \" As to the Law \" in the first of these judgments , ORG observed that in the opinion or the ORG and that of the Commission , the concept of \" reasonable time \" must be interpreted in the light of the concrete facts of each case . According to the ORG , it is in the nature of things that the same factors are not necessarily involved every time LAW ) ( LAW ) is invoked . However , the experience gained in the PERSON , PERSON , GPE and GPE cases showed that as a rule certain factors were considered by the Commission and the ORG in such cases .","In this connection , ORG referred particularly to paragraph CARDINAL of the section \" As to the Law \" of the PERSON judgment and summarised the arguments put forward by the Applicant in support of his CARDINAL applications for release on bail and the reasons why the competent NORP courts refused the first CARDINAL and granted the third .","They reminded ORG that the Commission had examined these facts to see whether the proceedings dealing with the Applicant \u2019s requests for release on bail had been unduly prolonged by the fault of the authorities concerned and that they had not found any such fault .","Other factors should also be taken into consideration ; in this respect the Delegates referred to the Applicant \u2019s conduct during the preliminary investigation and particularly his CARDINAL appeals , applications and other motions , CARDINAL of which could not be taken into consideration in the Report of DATE as the ORG had not drawn attention to them until its Memorial of DATE . The Delegates pointed out that in the opinion of ORG \" went beyond a fair exercise of his right of petition \" in challenging all the judges of ORG and that \" this element points to the conclusion that the prolongation of his detention , which resulted from this challenge was not unreasonable \" ( paragraph CARDINAL ( CARDINAL ) of the ORG ) . The Delegates nevertheless produced a letter dated DATE and addressed to the Commission in which the PERSON explained why he made that challenge .","Again , the complexity and difficulties of the preliminary investigation told in favour of the reasonableness of the length of detention in issue . Moreover , the ORG had taken account of a similar factor in its judgment of DATE , in the PERSON case ( paragraph CARDINAL of the section \" As to the Law \" ) .","Other factors told in the opposite direction , i.e. the length of the PERSON \u2019s detention - both in itself and , in particular , in relation to the sentence applicable in case of conviction - and the manner in which the preliminary investigation had been conducted . In paragraph CARDINAL of the reasons of the PERSON judgment , the ORG had implied that the actual duration of a period of detention could in certain circumstances be a determining factor in deciding whether it was reasonable . As to the manner in which the preliminary investigation was conducted , the ORG had taken account of this in the PERSON judgment ( paragraph CARDINAL of the reasons ) ; it was true that the ORG was dealing with LAW ( article DATE ) of the LAW but this aspect of the question was even more relevant from the point of view of LAW ) ( LAW ) . In the present case . Judge PERSON had to investigate several very difficult and complicated cases at the same time , including that of PERSON , PERSON and others ; the steps taken to relieve him of dealing with new cases , which were mentioned by ORG for the first time during the oral hearings , did not in any way refer to the cases already pending .","The Delegates then replied to the ORG \u2019s criticisms of the ORG \u2019s method of establishing the facts and setting them out in its ORG .","According to the ORG , the period of detention , the compatibility of which with LAW ) ( article CARDINAL ) had to be examined , ran from DATE to CARDINAL DATE . The Applicant \u2019s detention from DATE to CARDINAL DATE could not be taken into consideration because it occurred before the entry into force of the Convention with respect to GPE ( DATE ) .","In reply to an objection by the Government that the present case dealt exclusively with the period of detention prior to the lodging of the ORG ( DATE , see paragraph CARDINAL below ) , the Delegates replied by referring to paragraph CARDINAL of the PERSON judgment in which ORG had rejected a similar objection . They stated that the Commission had relied on this opinion of ORG in its recent decision on the admissibility of ORG . LOC , GPE against GPE ORG of the Commission , Volume CARDINAL , page CARDINAL ) .","At the ORG \u2019s request , the Delegates then replied to the ORG \u2019s argument based on LAW . They pointed out that the Applicant \u2019s detention terminated on DATE , i.e. before the ORG \u2019s decision on admissibility ( DATE ) . They added that it should be observed that this decision was taken after a hearing on DATE at which both parties were represented and in which the parties had made submissions on the admissibility of the complaint in question which related to the whole period of detention . The Government had not however , raised any objection to the ORG grounded on LAW ) ( article CARDINAL , article CARDINAL ) of ORG had not considered that it should be rejected under these provisions for failure to exhaust domestic remedies . Before the above - mentioned decision of DATE , the Applicant had on CARDINAL occasions applied to each of the authorities from whom a person detained while on remand in GPE may seek his release under Articles CARDINAL et seqq . of LAW ; he had thus exhausted the domestic remedies . However , NORP law does not limit the number and frequency of this type of application . The Delegates remarked that if the ORG \u2019s argument were to be accepted , it would lead to the conclusion that a person held in detention while on remand would have to make incessant applications in order to exhaust the domestic remedies with respect to the whole period of his detention : such a large number of applications would not only be likely to be considered as an obstruction of the normal course of criminal procedure but even as an abuse of the right of appeal .","Again , a person alleging the violation of LAW ) ( article CARDINAL ) with respect to the length of his detention while on remand complains of a continuing situation which should be considered as a whole and not divided up in the manner suggested by the Government . In the opinion of the Delegates , if the ORG \u2019s argument were accepted , the effect of LAW , paragraph ( CARDINAL ) ( article CARDINAL ) , of the Convention would be gravely impaired : it would dissuade detained persons from petitioning the Commission until they had endured a long period of detention while on remand . The Delegates also emphasised that it might in the result be less favourable for the respondent ORG in cases where a detained person was set at liberty by virtue of a request for release subsequent to the lodging of his ORG .","The Delegates submitted that once the ORG was declared admissible and LAW had been respected at the stage of examination of admissibility , the Commission and the ORG were competent to judge whether the length of the detention while on remand in issue was reasonable without this competence being in any way limited as to time .","Finally the Delegates replied to the ORG \u2019s arguments based on the fact that the PERSON had been convicted on CARDINAL DATE by ORG in the first criminal proceedings instituted against him ( file CARDINAL b Vr CARDINAL\/CARDINAL , see paragraph CARDINAL below ) .","In their view , the proceedings before the Commission related exclusively to the second prosecution ( file CARDINAL d Vr CARDINAL\/CARDINAL ) ; this appeared clearly from the ORG of CARDINAL DATE . It was clear , moreover , that the decisions taken DATE by ORG with respect to the PERSON \u2019s detention while on remand related to this latter prosecution .","The Delegates also observed that the judgment of ORG in the first criminal case was given in DATE , i.e. DATE before the arrest and detention of the Applicant in connection with the second prosecution . It would follow that the first prosecution was not relevant to the solution of the problem before ORG in the present case .","At the hearing of CARDINAL DATE , ORG requested the ORG :","\" to decide whether the ORG has been violated or not by the detention of ORG from DATE to CARDINALth DATE . \"","In its ORG of DATE , the ORG expressed the opinion that ORG was based on erroneous legal reasoning , an incorrect finding of the facts and an inaccurate assessment of the evidence .","These submissions were developed in detail in its memorial of DATE . The Government put forward arguments similar to those it had submitted in the PERSON case ( see pages CARDINAL , paragraphs CARDINAL of the judgment of CARDINAL DATE ) . In particular , the ORG raised objections of principle to the use of the criteria , to their application to the analysis of the facts and against criterion No . CARDINAL ; it also disputed the way in which the ORG had used criteria ORG . CARDINAL , CARDINAL and DATE in the present case .","At the oral hearings of CARDINAL and QUANTITY DATE , the ORG \u2019s representatives based their pleadings in part on the judgments which the ORG had given in the meantime in the PERSON and PERSON cases . In their opinion , the reasons which led to the rejection of the PERSON \u2019s first CARDINAL requests for release on bail were conclusive and convincing ; although the lack of danger of his absconding was acknowledged by ORG on DATE , the danger of a repetition of the offences continued throughout the period of detention in issue ; the decisions to this effect taken by the NORP courts were confirmed by the judgment of CARDINAL DATE convicting the PERSON which proved that offences had been committed after the first release . Even during his detention while on remand the Applicant had continued to recover debts due from his business activity , from which it might be concluded that he did not intend to abandon that activity . The danger of a repetition of the offences had , however , gradually lost its strength , particularly as a result of the progress of the preliminary investigation and the PERSON \u2019s change of occupation . On the other hand , the sale of the company had little significance in this respect : the PERSON , who had never obtained the licence necessary to act as an agent for credit transactions , could have resumed his business activity at any time . But while the danger of a repetition of the offences gradually became less , the danger of his absconding had revived in view of the severity of the sentence to be expected and the fact that the Applicant intended to take up the career of pilot in GPE , a ORG which had not made an extradition treaty with GPE . However , the authorities had averted this danger by accepting the security offered by the Applicant .","The Government considered that the method laid down by ORG in the CARDINAL judgments of DATE ( see , for example , paragraph CARDINAL of the section \" As to the Law \" of the judgment in the PERSON case ) results inevitably in having to submit to the ORG the merits of the final domestic decision on an Applicant \u2019s detention while on remand . But such a result is contrary to the LAW and to the case - law of the ORG and the ORG .","This method would involve the risk of blurring the clear distinction which , according to the Government , should be maintained between paragraph ( CARDINAL ) ( c ) and paragraph ( CARDINAL ) of LAW article CARDINAL - CARDINAL-c , article CARDINAL ) . It was only the length of detention that was in issue and not the detention as such . The question whether the conditions justifying detention while on remand were fulfilled did not in the present case merit the importance that had been given to it by ORG in the PERSON judgment . Referring to paragraph CARDINAL of the reasons of the PERSON judgment , the ORG \u2019s representatives expressed their agreement with the manner in which ORG had interpreted the concept of reasonableness . In their opinion , account must be taken of all circumstances which have had a bearing on the length of detention : the practical difficulties of the preliminary investigation particularly with regard to the principle of the determination of the true facts , the behaviour of the Applicant , etc . In short , the question was whether an authority of ORG had delayed the proceedings : if this was not so , the Government considered that there was no reason to accuse it of having failed to comply with the requirements of paragraph ( CARDINAL ) of LAW article CARDINAL ) .","In this connection , the Government insisted strongly on the exceptional difficulties encountered in the preliminary investigation and particularly the wide extent of the alleged dishonest dealings , the complexity of the facts , the skill of the PERSON and the number of witnesses . It also pointed out that the competent authorities , in their anxiety to speed up the course of the proceedings as far as possible , had ordered the severance of certain prosecutions and relieved Judge PERSON of dealing with new cases during a number of periods which extended from DATE to CARDINAL DATE and amounted in all to DATE . This last - mentioned information had not been given to the Commission but the ORG \u2019s representatives thought it right and necessary to give it to the ORG ; there was no rule forbidding the introduction of new material ( ORG ) before the ORG . It is true that Judge PERSON had had to deal at the same time with the PERSON case and the case concerning PERSON , PERSON and others ; however , he had stated before ORG that it was only the length of the preliminary investigation and not that of the Applicant \u2019s detention while on remand which had been prolonged as a result . Again , the ORG had not in its ORG found any fault on the part of the NORP judicial authorities ; it thus gave the impression that the present case - as indeed the PERSON case - was concerned less with the particular proceedings than with the NORP system of criminal investigation .","Unlike the authorities concerned , the Applicant had systematically sought to delay and complicate the preliminary investigation . His dilatory tactics consisted in particular of a mass of applications and appeals - including the challenges to judges and requests for transfer of the proceedings - and of accusations of perjury against the prosecution witnesses . This appeared clearly from the letter addressed by PERSON to his lawyer on CARDINAL DATE .","As matters stood , the fact that the proceedings did not terminate earlier had not prejudiced the Applicant : he had been granted remission of sentence for the time he had spent in detention while on remand ; furthermore , the ORG had exercised in his favour its \" special right of mitigation \" ( LAW ) which it did for the reason that a fairly considerable time had passed since the offences were committed .","In order to solve the problem raised by the present case the Government considers that it is necessary to take account of the first prosecution of the Applicant . Those proceedings , which ended with the judgment of ORG of CARDINAL DATE ( file CARDINAL b Vr CARDINAL\/CARDINAL ) and the second prosecution ( file CARDINAL d Vr CARDINAL\/CARDINAL ) together formed an indivisible whole . The CARDINAL proceedings related , in effect , to similar offences which were interconnected and were tried by the same court ; moreover , all the legal requirements ( LAW ) for a joinder of the CARDINAL proceedings were satisfied both at the time judgment was given and during the detention while on remand . According to the Government , the judgment of CARDINAL DATE must be considered as satisfying the Applicant \u2019s entitlement to be tried ( PERSON ) within the meaning of LAW ) ( article CARDINAL ) of the Convention . It could be regarded as a sort of partial or first judgment . As to the judgment of CARDINAL DATE , it was merely supplementary to that of CARDINAL DATE , to which it expressly referred ( cf . LAW ) . The Government added that it would cause serious difficulties if the ORG were to ignore the first judgment ; it observed that when a person is charged with a great number of offences the prosecution often begins , particularly in countries outside the NORP legal system , by separating some of the offences and putting them before the competent court ; this practice which is perfectly in accord with the ORG would therefore have to be abandoned if the ORG did not consider the judgment of CARDINAL DATE as being a real judicial decision within the meaning of LAW ) ( article CARDINAL ) .","In reply to the arguments of ORG , the ORG \u2019s representatives emphasised that although the first criminal proceedings had not led to an ORG by PERSON against GPE , they had nevertheless played a certain part in the proceedings before the Commission : they are mentioned in one of the annexes to ORG and a question concerning those proceedings was put to the parties by the President of ORG . It is true that judgment had been given in those proceedings on DATE but this judgment had been set aside by ORG on DATE : therefore , the only judgment to be considered was the judgment of CARDINAL DATE .","The Government therefore submitted that the length of detention in issue , which in its opinion should be reduced by DATE to make allowance for the delays caused by ORG \u2019s challenges to the judges , should be shortened by DATE .","In its FAC of DATE , the Government on the other hand , criticised the Commission for having taken into consideration the period which followed the lodging of the ORG ( DATE ) : in the Government \u2019s opinion , the ORG could only deal with facts which had been put before it in an ORG submitted under LAW article CARDINAL ) or PERCENT article CARDINAL ) and in all logic such an ORG could only relate to matters prior to the date on which it was lodged .","In a judgment of DATE the ORG rejected a similar argument put forward by the same Government in the PERSON case ( see pages CARDINAL and CARDINAL of the judgment ) . The Government nevertheless maintained its position on CARDINAL and CARDINAL DATE . In its view , the case before ORG dealt exclusively with the period DATE and DATE .","Apart from ORG and DATE ( article DATE , article CARDINAL ) , the ORG relied particularly on LAW . In this context it maintained that the ORG \u2019s decision on admissibility was not infallible and that the ORG was competent under Articles DATE and DATE ( article DATE , article CARDINAL ) of the Convention to examine the question whether proceedings had properly been brought against the respondent ORG and whether the ORG was admissible .","According to the Government , it would be contrary to LAW were to adopt the opinion that an ORG alleging a violation of LAW ) ( article CARDINAL ) related to a situation and not to an isolated act ( paragraph CARDINAL of the reasons of the PERSON judgment ) : it would be enough for the person concerned to have exhausted the domestic remedies immediately after the beginning of his detention while on remand in order to be entitled to question the legality of the whole period of detention by applying to the ORG ; the respondent ORG would thus be prevented from taking steps to remedy within the framework of its domestic legal system a supposed violation which might very well not have occurred until after the lodging of the ORG . In the ORG \u2019s opinion , such a result would be contrary to a rule of customary international law and LAW ) was purely and simply a reproduction of this rule .","Moreover , in the ORG \u2019s view , the starting point of the ORG \u2019s reasoning was not at all beyond discussion . For the ORG was not directed against the detention as such but against the length of a period of detention which in itself was compatible with the requirements of the LAW . Consequently , the time factor was of capital importance for the determination of the subject of the dispute , which was not so much a continuing situation but a definite fact , that is , the length of a detention which itself complied with the requirements of LAW ) ( article CARDINAL - CARDINAL-c ) .","Referring in particular to the decision of DATE on the admissibility of Application No . LOC ( Ringeisen against GPE ) , the Government expressed the concern it felt as to the manner in which the Commission interpreted LAW ) : this very free and informal interpretation did not accord with the intention of GPE .","Referring to its own conception , the Government did not consider that this would oblige a person desirous of protecting his rights to introduce a series of successive applications . In its opinion , an aggrieved person should apply to the Commission when he considered that he had been too long in detention : such an ORG would be successful if that was in fact the case ; otherwise it would be rejected on the grounds that the PERSON was complaining of a violation which had not yet occurred .","The Government concedes that it did perhaps fail to raise before the ORG the objection based on LAW ) . It nevertheless considers that it is entitled to raise the matter before the ORG : in its opinion , neither the rule forbidding the introduction of new matter ( ORG ) nor the obligation to raise certain matters at the beginning of proceedings ( Eventualmaxime ) appears to apply in the circumstances .","In the ORG \u2019s opinion , if the ORG was nonetheless to hold that there had been a violation of paragraph ( CARDINAL ) of LAW article CARDINAL ) , it ought to indicate the time when this violation commenced . Since it was not contested that ORG \u2019s original arrest was valid ( paragraph CARDINAL ( c ) of LAW ( article DATE ) this inference would , in the opinion of the Government , imply that the detention in issue was originally compatible with paragraph ( CARDINAL ) ( article CARDINAL ) . It was therefore a great significance to the Government to know - if this should be the case - for what length of time the detention in question had continued to be reasonable .","In its FAC of DATE , the ORG made the following submissions to the ORG which it confirmed at the hearing of CARDINAL DATE :","\" DATE it please the ORG to declare that the length of detention pending trial , which is the subject of the ORG lodged by ORG against GPE and of the ORG drawn up by ORG DATE in accordance with LAW article CARDINAL ) of ORG , does not conflict with the obligations arising from the said Convention \" ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60736","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":2002,"docname":"CASE OF SALOMONSSON v. SWEDEN","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award","judges":"Nicolas Bratza","text":["On DATE the applicant , who was born in DATE and had been on early retirement since DATE , applied for disability benefits under LAW ( NORP om allm\u00e4n f\u00f6rs\u00e4kring , CARDINAL:CARDINAL ; hereinafter \u201c the DATE Act \u201d ) . He claimed that he had extra costs following an operation on his intestines in DATE due to , inter alia , an increased consumption of fluids .","By a decision of DATE ORG ( f\u00f6rs\u00e4kringskassan ; hereinafter \u201c the Office \u201d ) of GPE rejected the application , finding that the applicant \u2019s costs were not such as to make him eligible for benefits .","The applicant later made a new application , which was rejected by ORG DATE .","The applicant appealed to ORG ( l\u00e4nsr\u00e4tten ) of GPE . On DATE the court rejected his appeal . The court did not hold an oral hearing nor did the applicant request CARDINAL .","Following the applicant \u2019s further appeal , ORG ( kammarr\u00e4tten ) in GPE , by a decision of CARDINAL DATE , refused him leave to appeal .","On DATE the applicant made yet another application for disability benefits . On DATE the application was rejected by the ORG , which again found that the applicant \u2019s costs did not attain the required level . The ORG had at its disposal CARDINAL medical certificates issued by different physicians . They expressed differing opinions on the applicant \u2019s need of extra consumption of fluids , CARDINAL of them considering that there was no such need and the third one stating that the applicant was recommended , from a surgical point of view , an increased consumption of , for instance , mineral water .","The applicant appealed to ORG . In a decision of DATE the court noted that the issue in the case was whether the applicant \u2019s extra costs attained the level required for a disability allowance under LAW . Finding that the medical evidence in the case was inconclusive and did not provide the ORG with a sufficient basis for a decision , the court ordered ORG ( Riksf\u00f6rs\u00e4kringsverket ; hereinafter \u201c the Board \u201d ) to submit observations in the case . ORG answered by a letter of CARDINAL DATE , in which it contested the applicant \u2019s claims . The applicant made observations in reply .","On DATE ORG gave judgment in the applicant \u2019s favour . Having reiterated that the medical evidence was inconclusive , the court also noted that the calculations of the applicant \u2019s extra costs made by the ORG and the applicant himself were very close on either side of the level required for entitlement to a disability allowance . In these circumstances , it gave the applicant the benefit of the doubt and granted him an allowance . An oral hearing was not requested by the applicant , nor did the court hold one of its own motion .","The ORG appealed against the judgment to ORG and submitted a medical certificate from a further physician , who stated that an increased consumption of fluids was necessary due to the applicant \u2019s handicap but that there was no particular need for mineral water . On DATE the appellate court granted the ORG leave to appeal .","By a letter of DATE the applicant requested the appellate court to hold an oral hearing in the case . He did not state any reasons for his request . On DATE it was rejected by the court . After having restated section CARDINAL of ORG ( F\u00f6rvaltningsprocess - lagen , ORG ; hereinafter \u201c the DATE LAW ; see further paragraph CARDINAL below ) , the court gave the following reasons :","\u201c Having regard to the subject - matter at issue and the information that has come to hand in the case , [ the court ] finds that an oral hearing is unnecessary and rejects the request to that effect . [ The applicant ] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within DATE after having been notified of this decision .","The case can be determined notwithstanding a failure to submit such written observations . \u201d","The applicant reiterated his request for an oral hearing on CARDINAL DATE . He now stated that he wished to be heard in person about his working conditions and the costs of his consumption of fluids . Further , representatives of ORG should be heard about the applicable levels for entitlement to and calculation of disability allowances .","On DATE ORG rejected the applicant \u2019s renewed request for an oral hearing and gave judgment in favour of ORG . Thus , it quashed ORG judgment and confirmed the ORG \u2019s decision of DATE . Without giving any further reasons , it considered that the information in the case did not show that the applicant met the conditions for a disability allowance .","The applicant appealed to ORG ( Regeringsr\u00e4tten ) . He requested that the case be referred back to ORG for re - examination or , alternatively , that ORG confirm ORG judgment . He complained about the lack of an oral hearing in ORG and also requested ORG to hold an oral hearing .","By a letter of DATE ORG informed the applicant that it did not normally hold oral hearings and gave him the opportunity to complete his appeal in writing .","On DATE ORG refused the applicant leave to appeal .","According to chapter CARDINAL , section CARDINAL of LAW , a person who is ill or handicapped is entitled to disability benefits , provided that , before reaching DATE , he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation . It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to the ORG \u2019s guidelines , the total cost of all extra needs due to the disability should come to PERCENT of a basic amount geared to the price index ( basbelopp ) in order to make the individual eligible for an allowance . In DATE , when the applicant made his second application to the ORG , this corresponded to MONEY ( SEK ) .","A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG .","The procedure in the administrative courts is governed by the provisions of LAW . Section CARDINAL provides :","\u201c The proceedings are in writing .","An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .","In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . \u201d","The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .","According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .","It was further stated , in respect of the third paragraph of section CARDINAL , that a party \u2019s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party \u2019s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106646","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2011,"docname":"HAJJ HUSSEIN v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert","text":["The applicant , PERSON , was born in DATE and claims to be NORP . However , the NORP authorities found that she had not made it probable that she originates from GPE and therefore held that her case should be tried not only against GPE but also against the neighbouring countries GPE and GPE .","In DATE , the applicant had a relationship with a man who turned out to be a drug addict and dealer . After her parents banned her from seeing him , he started to harass her and threatened to kill her . Her brother also threatened to kill her due to that relationship .","On DATE ORG rejected her asylum application as it found the alleged incident to be an act of criminality which was for the domestic authorities to handle . The applicant had neither turned to those authorities for protection nor made it probable that they could not provide protection against the threats in question . ORG therefore held that , should the applicant be victim of further crimes upon return , she could seek protection from the authorities in GPE , GPE or GPE . On DATE ORG upheld the decision of ORG . As stated by herself in the present application , the applicant did not appeal against ORG judgment to ORG . With the rejection of the applicant \u2019s asylum application she has no right to remain in GPE and can be removed without further proceedings .","The provisions applicable in the present case are laid down in LAW ( Utl\u00e4nningslagen , GPE ) . The LAW defines , inter alia , the conditions under which an alien can be deported or expelled from GPE as well as the procedures relating to the enforcement of such decisions .","The LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE ( LAW , section CARDINAL ) . The term \u201c refugee \u201d refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country ( LAW , section CARDINAL ) . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By \u201c an alien otherwise in need of protection \u201d is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .","As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW ) .","Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This is the case where new circumstances give reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced ( LAW , section CARDINAL ) . If a residence permit can not be granted under these rules , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not be met , ORG shall decide not to grant a re - examination ( LAW , section CARDINAL ) .","Matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances : ORG , ORG and ORG . The applicants are entitled to be represented before these bodies by publicly - appointed counsel ( LAW , section CARDINAL , LAW , section CARDINAL , and LAW , section CARDINAL ) . The time - limit for appeals to the final instance is DATE from the date of the appealed judgment ( LAW , section CARDINAL ) . For a case to be considered by ORG , leave to appeal is required and will be granted if there are special reasons for hearing the appeal or if the determination of ORG may be of importance as a precedent . If leave to appeal is granted , ORG can decide the case on the merits ( LAW , section CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91092","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2009,"docname":"CASE OF MITCHARD v. THE UNITED KINGDOM","importance":4,"conclusion":"Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","His wife died on DATE leaving dependent children . His claim for widows\u2019 benefits was made in DATE and on QUANTITY May CARDINAL it was determined that he was entitled to Widowed Parent \u2019s ORG as from DATE . The applicant however requested that the claim be treated as from the date of his wife \u2019s death , or alternatively that he be allowed to claim the equivalent widow \u2019s benefit . On DATE he made a formal application for widow \u2019s benefit which was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The relevant domestic law and practice are described in the ORG \u2019s judgment in the case of PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV ."],"violated_articles":["14","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23528","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2003,"docname":"POPOV and OTHERS, VAKARELOVA, MARKOV and BANKOV v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["All applicants are practising medical doctors . Some of them are members of ORG ( LOC \u043b\u0435\u043a\u0430\u0440\u0441\u043a\u0438 \u0441\u044a\u044e\u0437 \u201c \u2013 \u201c ORG \u201d ) , established in DATE by ORG and Dentists Act ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0441\u044a\u0441\u043b\u043e\u0432\u043d\u0438\u0442\u0435 \u043e\u0440\u0433\u0430\u043d\u0438\u0437\u0430\u0446\u0438\u0438 \u043d\u0430 \u043b\u0435\u043a\u0430\u0440\u0438\u0442\u0435 \u0438 \u0441\u0442\u043e\u043c\u0430\u0442\u043e\u043b\u043e\u0437\u0438\u0442\u0435 \u201c \u2013 \u201c PODDA \u201d or \u201c Act \u201d ) , while some have refused to become such members .","The applicants in the first application ( no . CARDINAL ) , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON and PERSON , lawyers practising in GPE .","The applicant in the second application ( no . CARDINAL ) , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by PERSON and PERSON PERSON , lawyers practising in GPE .","The applicant in the third application ( no . CARDINAL\/CARDINAL ) , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .","The applicant in the fourth application ( no . CARDINAL\/CARDINAL ) , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG by PERSON and PERSON , lawyers practising in GPE .","The ORG was originally established in DATE as a professional association of medical doctors . During World War II membership in the union became compulsory . After the war the union was liquidated .","Similarly , ORG in GPE ( \u201e GPE \u0441\u0442\u043e\u043c\u0430\u0442\u043e\u043b\u043e\u0437\u0438\u0442\u0435 \u0432 GPE \u201c \u2013 \u201c FAC ) was established in DATE as a professional association of dentists and ceased to exist after World War II .","In DATE an organisation named ORG was founded by a group of medical doctors . It was registered as a notforprofit association under ORG ( the statute governing this type of organisations ) . The association was active on the whole territory of GPE and had numerous members . The applicant in application no . CARDINAL , PERSON , was one of its members . DATE she chaired the regional section of the ORG in ORG .","On DATE ORG adopted ORG . The LAW was published in ORG on DATE and entered into force on DATE . It established CARDINAL organisations : the ORG and the ORG , and provided , in paragraph CARDINAL of its transitional and concluding provisions , that the CARDINAL organisations were the respective successors of the ORG of DATE and the UDB of DATE . By virtue of PODDA all practising medical doctors and dentists in the country were obliged to become members of , respectively , the newly established ORG and ORG . Those medical doctors and dentists who were not practising could , but were not obliged to , become members . PODDA introduced amendments to LAW whereby a medical doctor or a dentist working under an employment contract who had not become a member of the respective union was liable to be dismissed from work without notice and became criminally liable if he or she continued to practise .","In DATE sixty Members of ORG requested ORG to declare PODDA unconstitutional . They argued that compulsory membership in the ORG and the ORG went against LAW , enshrining , inter alia , negative freedom of association . They further submitted that LAW infringed LAW , guaranteeing the right to work , and also the principle that government functions should not be entrusted to public organisations without their express consent . They also maintained that the LAW created undue privileges for the CARDINAL unions to the detriment of other organisations and that it regulated matters which should have been left to the discretion of the ORG governing bodies . Finally , the MPs asserted that section CARDINAL(CARDINAL)(CARDINAL ) of ORG was vague and could lead to unjustified gathering of irrelevant information about ORG and ORG members .","The Constitutional Court gave judgment on DATE . In respect of the allegation that ORG infringed the medical ORG and NORP negative freedom of association it held as follows :","\u201c ...","Through PODDA the legislature regulated the structure , the organisation and the activities of the professional organisations of the medical doctors and the dentists , the conditions for practising medicine and odontology , and the responsibility for breaches of professional ethics . According to section CARDINAL(CARDINAL ) of the LAW the professional organisation of medical doctors is the ORG , and that of dentists \u2013 the ORG . Section CARDINAL(CARDINAL ) provides that all medical doctors and dentists who practise their profession must be members of the ORG or the ORG , respectively .","The [ Members of ORG ] who filed the request maintain that the above provisions contravene LAW , LAW and LAW and QUANTITY of the LAW of GPE , as well as international treaties ... which ... are part of the domestic law of the country ... It is submitted that by requiring all practising medical doctors and dentists to be members of the ORG and LAW infringes the constitutionally protected freedom of association ( LAW ) , because it brings about an element of compulsion which is irreconcilable with that freedom .","In addition , according to the request , the provisions of the challenged Act run counter to LAW , which proclaims on the one hand the ORG right to work and on the other \u2013 the obligation for the ORG to create the conditions for the realisation of that right .","The Constitutional Court finds that these submissions and the arguments presented in support of the request are illfounded .","I.CARDINAL . PODDA does not contain a provision which excludes the right of other organisations , including professional and tradeunion type , founded by medical doctors and dentists , to exist alongside the ORG and the ORG . It does not proscribe the establishment of associations by medical doctors and dentists under LAW or another statute . Therefore , the LAW does not run counter to LAW . It does not affect the constitutionally protected freedom of association , because that freedom pertains to privatelaw associations , including trade unions under LAW . This constitutionally recognised freedom includes not only the freedom to take up the initiative and to form an association , respectively to become a member of an existing one , but also the socalled \u201c negative freedom \u201d , i.e. the right to not become a member of an existing association .","NORP PODDA does not lie on the plane of LAW . It is an LAW which creates publiclaw corporations with compulsory membership of medical doctors and dentists . These corporations are endowed with certain publiclaw functions : to organise , control and discipline medical doctors and dentists . Accordingly , freedom of association , proclaimed by LAW , does not apply to them : they are created by statute and not through the free will of their members .","ORG considers that , when deciding on the applicability of ORG DATE of the LAW to publiclaw corporations , it must have regard to the caselaw of ORG and the interpretation of LAW of LAW [ ( \u201c ORG \u201d ) ] . This provision corresponds to LAW . This is so , because [ ORG ] is part of domestic law and , according to its LAW , the judgments of ORG [ and the interpretations of the ORG contained therein ] are binding on all ORG bodies in the country .","[ In ] a judgment of ORG in GPE of CARDINAL DATE , the issue [ was ] whether the compulsory membership of medical doctors in a publiclaw corporation \u2013 \u201c ORG \u201d \u2013 , created by act of the king of GPE , ran counter to LAW ORG ( which corresponds to LAW ) . That corporation \u2019s aim was to protect the ORG health by exercising control over the practice of medicine . This function led to [ the giving ] a number of administrative powers to the \u201c Ordre [ des m\u00e9decins ] \u201d , including the power to discipline the medical doctors registered with it . According to the unanimous judgment of ORG , the corporation of NORP medical doctors \u201c Ordre [ des m\u00e9decins ] \u201d could not be considered as an association within the meaning of LAW ORG and [ compulsory membership in it ] did not run counter to this Article .","It should be pointed out that a similar opinion was expressed by ORG and by the prevailing NORP doctrine in respect of the various publiclaw corporations ( the socalled \u201c chambers \u201d ) which exist in GPE , such as : the ORG , notaries\u2019 , medical ORG , dentists\u2019 , pharmacists\u2019 , handicraftsmen \u2019s , etc . chambers . According to this opinion , the compulsory membership of the persons who practise the respective professions in these chambers does not contravene LAW which proclaims freedom of association , because that Article concerns the formation of notforprofit associations and of companies , which are of privatelaw character and thus do not fall in the category of publiclaw corporations . For this reasons these corporations [ were ] not [ considered ] unconstitutional ...","NORP In order to better understand the fundamental difference between a publiclaw corporation with compulsory membership of all persons who practise the respective profession and a voluntary privatelaw association , regard must be had to ORG Human Right \u2019s judgment of CARDINAL DATE in the case of PERSON , PERSON and PERSON [ v. GPE , series A no . CARDINAL ] . Its subjectmatter was an agreement for the compulsory membership of employees in a trade union . Since LAW ORG ( corresponding to LAW ) applies to trade unions , ORG in GPE found in favour of the applicants , because it found that the freedom of association in trade unions could not be restricted through compulsory membership in a given trade union under the threat of dismissal from work of an employee who was not a member .","The abovementioned judgments of ORG draw a sharp distinction between publiclaw corporations , which have compulsory membership , and privatelaw associations , including trade unions . LAW ORG , corresponding to LAW , applies only to privatelaw associations . The conclusion drawn by ORG is that ORG does not contravene LAW .","A decisive argument in support of this conclusion is LAW . Article CARDINAL provides that the Bar is selfgoverning and provides for the adoption of a special statute on its organisation and activities . It is common knowledge that in many countries , and in our country even before LAW of CARDINAL , the practising of the legal profession was subject to membership in the respective lawyers\u2019 organisation , i.e. registration of the person wishing to practise as a lawyer in this organisation . It is therefore beyond question that the Bar is a telling example of a publiclaw corporation . These elements abound in our GPE [ of DATE ] . It is true that the LAW does not expressly provide that the medical ORG and dentists\u2019 unions should be corporations with publiclaw elements . But this is by no means necessary . The formation of various corporations with publiclaw elements is a matter of legislative discretion and is not dependent upon an express constitutional command . By its very nature the LAW can not and should not exhaustively enumerate the permissible forms of organisation . But when it regulates the Bar , it clearly indicates that organisations like it are compatible with LAW . Such an organisation is also ORG ( see LAW [ of DATE ] ) . Such is also the LAW challenged before the ORG .","Through this Act the ORG performs its obligation under LAW to protect the ORG health and to provide them with highquality health care . By entrusting to medical doctors and dentists themselves the supervision of the CARDINAL professions through corporations ran by them , the challenged Act manages to achieve in the most expedient manner the observance of LAW and LAW , as well the regulation of the profession . Otherwise these functions would have to be entrusted to civil servants who would not be as competent and would cost considerable amounts of money to the ORG budget . This explains why the manner of organisation of medical doctors and dentists used by ORG is also used in a number of NORP countries such as GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , [ and ] GPE .","NORP PODDA is necessary also because of the inseverable link between it and FAC [ of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0437\u0434\u0440\u0430\u0432\u043d\u043e\u0442\u043e \u043e\u0441\u0438\u0433\u0443\u0440\u044f\u0432\u0430\u043d\u0435 \u201c \u2013 \u201c ORG \u201d ) ] , because health insurance , guaranteed by LAW , may function only if the organisations of medical doctors and dentists created by PODDA exist . These organisations are parties to ORG concluded for the purpose of carrying out the activities under ORG . By DATE of ORG , the National Framework Agreement regulates the conditions for and the manner of selecting medical service providers , the forms , conditions and manner in which medical services are dispensed , the amount , prices and method of payment for the medical services and drugs , as well as all other matters relating to health security . In other words , not a single health security activity could be carried out without this Agreement , which would deprive the citizens of the possibility to exercise their constitutionally guaranteed ( LAW [ of LAW ] ) right to health security . This convincingly demonstrates that not only does PODDA not contravene LAW , but that it is in fact mandated by LAW , so that the right guaranteed by LAW becomes a social reality .","... \u201d","As regards the allegation that section CARDINAL(CARDINAL)(CARDINAL ) of ORG was vague and allowed the gathering and retention of personal information , ORG held :","\u201c ... it is true that point CARDINAL [ of section GPE ) ] has a blanket wording . However , it is sufficient to connect this provision with section CARDINAL of [ PODDA ] in order to see that the term \u201c other circumstances \u201d means a number of facts set forth in section PERSON ) , without being expressly referred to in section GPE ) points CARDINAL to CARDINAL , but which should nevertheless be entered in the register ( e.g. length of service , indication that a doctor is a foreign national , [ and ] criminal record ) . If sections DATE and DATE are construed in connection with one another , the conclusion could and should be that \u201c other circumstances \u201d means exactly the facts mentioned in section CARDINAL . Thus , the blanket wording of point CARDINAL of section GPE ) becomes clear and the alleged infringement of the rights set forth by LAW is excluded . \u201d","CARDINAL judges dissented from ORG judgment , each writing an individual dissenting opinion .","The dissenting judges were of the opinion , inter alia , that the ORG and the ORG could not be considered as falling outside the scope of LAW . The argument that they had been created by law was not persuasive because ORG had merely branded CARDINAL notforprofit associations \u201c professional organisations \u201d and had endowed them with certain publiclaw functions without declaring their liquidation or transformation or annulling the court \u2019s decisions for their registration ; it was doubtful whether this could be done by an ORG . The unions were essentially privatelaw associations , much like the one at issue in the case of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) . Also , the notion of publiclaw functions was not unambiguous and could not serve as a basis for excluding the unions in question from the ambit of LAW . Indeed , by section MONEY ) of ORG , the CARDINAL unions represented their members and protected their professional rights and interests , which were functions of a typical association or trade union .","\u201c CARDINAL . Citizens\u2019 associations shall serve for fulfilling and protecting ORG interests .","ORG associations , including trade unions , may not pursue political goals or carry out political activities that are characteristic solely of political parties . \u201d","\u201c The private life of the citizens shall be inviolable . Everyone shall have the right to be protected against illegal interference in his private or family life and against encroachments on his honour , dignity and reputation . \u201d","\u201c CARDINAL . Citizens may associate freely .","Organisations whose activity is directed against the sovereignty , the territorial integrity of the country [ or ] the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity , towards the infringement of the ORG rights and freedoms , as well as organisations which seek to achieve their goals through violence , shall be prohibited . \u201d","The structure , the organisation and the activities of the professional organisations of the doctors and dentists \u2013 the ORG and the UDB \u2013 , are regulated by ORG ( section CARDINAL(CARDINAL ) ) .","By section CARDINAL of the LAW , all practising medical doctors and dentists must be members of the respective union , whereas the membership of nonpractising doctors and dentists is optional .","ORG provides that the functions of the ORG and the ORG are as follows : a ) to represent their members and protect their professional rights and interests ; b ) to represent their members as parties to ORG with ORG ; c ) to draft a Professional Ethics Code for medical doctors , respectively dentists , and to exercise control for compliance with that Code ; d ) to adopt , together with ORG , Rules for ORG , to submit them for approval by ORG and to exercise control for compliance with them ; e ) to impose the sanctions which ORG provides for medical malpractice ; f ) to draw up and keep a national and regional registers of their members ; g ) to participate in the organisation and conducting of professional qualification courses for doctors and dentists ; h ) to appoint representatives to ORG at ORG ; i ) to express opinions on draft bills and regulations in the area of public health ; j ) to cooperate with other organisations and institutions in the country and abroad ; k ) to provide assistance to their members and their families in case they need it ; l ) to carry out any other activity which their statutes provide for ( section CARDINAL ) .","ORG provides that the ORG and the ORG are legal persons and sets forth their structure and bodies . By CARDINAL of the LAW , the ORG and the ORG have regional sections in all municipalities of the country . All practising medical doctors and dentists within a given municipality must be members of the regional section of the ORG or the ORG , respectively . The central bodies of the ORG and the ORG are their conventions ( consisting of the elected representatives of their regional sections \u2013 section CARDINAL(CARDINAL ) ) , their managing boards ( consisting of a chairperson , deputychairpersons , secretarygeneral and members \u2013 section CARDINAL ) , their control commissions ( consisting of a chairperson and members \u2013 section CARDINAL ) ) , and their professional ethics commissions ( consisting of a chairperson and members \u2013 section CARDINAL(CARDINAL ) ) . The regional bodies of the unions are the general meetings of all practising doctors , respectively dentists , in the region ( consisting of the delegates DATE at a CARDINAL to CARDINAL rate DATE of all doctors or dentists within the given region \u2013 section CARDINAL(CARDINAL ) ) , the managing boards of the regional sections ( consisting of a chairperson , deputychairpersons , secretarygeneral and members \u2013 section PERSON ) ) , the control commissions of the regional sections ( consisting of a chairperson and members \u2013 section CARDINAL ) ) , and the professional ethics commissions of the regional sections ( consisting of a chairperson and members \u2013 section CARDINAL ) ) . The LAW describes in detail the powers of each of the bodies .","Under ORG , health coverage for all NORP citizens and foreigners permanently residing on the territory of GPE is provided by ORG ( \u201e \u041d\u0430\u0446\u0438\u043e\u043d\u0430\u043b\u043d\u0430 \u0437\u0434\u0440\u0430\u0432\u043d\u043e\u043e\u0441\u0438\u0433\u0443\u0440\u0438\u0442\u0435\u043b\u043d\u0430 LAW of ORG ) . The ORG , which receives DATE payments in respect of all persons with health coverage ( section CARDINAL of ORG ) , enters into a ORG with the ORG and the ORG , as established by ORG ( section CARDINAL of ORG ) . ORG sets forth , inter alia , the types of medical services to which all persons with health coverage are entitled , the manner of their dispensing , and the prices that the medical service providers ( hospitals and medical doctors and dentists ) can charge the ORG and the patients for these services ( a patient pays a minimal amount every time he or she uses medical services and the remainder is paid directly by ORG ) of ORG ) . The Agreement between the ORG and the ORG and the ORG is renegotiated DATE ( section CARDINAL(CARDINAL ) of ORG ) . Thus , the ORG and the ORG represent all medical doctors and dentists for the purpose of negotiating the terms of the ORG and therefore the prices hospitals and doctors and dentists can charge the ORG for providing medical services to persons with health coverage and the manner of providing such services . The Agreement must be countersigned by ORG and is subject to control by ORG in the same manner as is delegated legislation ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 DATE \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL\/ DATE \u0433. , V \u0447\u043b. \u0441\u0432 \u043d\u0430 ORG , \u043e\u0431\u043d. GPE , \u0431\u0440. CARDINAL \u043e\u0442 DATE \u0433. ) .","All hospitals , other medical institutions and individually practising medical doctors and dentists enter into individual contracts with the local branches of the ORG pursuant to ORG ( section CARDINAL ) of ORG ) . These contracts can not deviate from the terms of ORG ( section CARDINAL(CARDINAL ) and ( CARDINAL) of ORG ) .","Section CARDINAL ) of LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043d\u0430\u0440\u043e\u0434\u043d\u043e\u0442\u043e \u0437\u0434\u0440\u0430\u0432\u0435 \u201c ) , as in force until DATE , and section CARDINAL(CARDINAL ) of LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043b\u0435\u0447\u0435\u0431\u043d\u0438\u0442\u0435 \u0437\u0430\u0432\u0435\u0434\u0435\u043d\u0438\u044f \u201c ) , which superseded it , provide that in order to register private practice a medical doctor or a dentist has to produce a certificate to the effect that he or she has been registered with the ORG or the ORG , respectively .","LAW , as amended by ORG , provides that a medical doctor or a dentist who practises his or her profession in violation of the law is punishable with CARDINAL years\u2019 imprisonment or a fine from one to three hundred NORP levs .","By LAW , as amended by ORG , a medical doctor or a dentist may be dismissed from work without notice if he or she had been struck off the registers kept respectively by the ORG or the ORG .","Section CARDINAL(CARDINAL ) of PODDA enumerates the kinds of information which should be entered in the registers of medical doctors and dentists kept by the regional sections of the ORG and the ORG . While points CARDINAL to CARDINAL of section GPE ) set forth specific types of information ( e.g. name , address , education , speciality ) , point CARDINAL of that section provides that in the register shall be entered \u201c other circumstances \u201d .","Section PERSON ) of ORG provides that the application for membership in the ORG , respectively the ORG , should be accompanied by a diploma , a document certifying that in case of a career interruption of DATE the medical doctor or dentist has successfully passed a validation examination , a scientific degree certificate ( if the doctor or dentist has CARDINAL ) , a document certifying the place of work and the length of service , and , for foreign nationals \u2013 a residence permit and a document certifying that have passed the requisite examinations , as well as a criminal record .","In DATE ORG adopted ORG ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0437\u0430\u0449\u0438\u0442\u0430 \u043d\u0430 \u043b\u0438\u0447\u043d\u0438\u0442\u0435 \u0434\u0430\u043d\u043d\u0438 \u201c ) , the purpose of which was to guarantee the integrity of the person and the private life by protecting the individuals from illegal processing of personal data relating to them and to regulate the right of access to such data ( section CARDINAL ) of ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104532","languageisocode":"ENG","respondent":"BIH","branch":"ADMISSIBILITY","date":2011,"docname":"ALIBASIC v. BOSNIA AND HERZEGOVINA","importance":4,"conclusion":"Inadmissible","judges":"Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a citizen of GPE who was born in DATE and lives in GPE . The Government of GPE ( \u201c the Government \u201d ) were represented by their Deputy Agent , PERSON .","This is the applicant \u2019s second case before the ORG . The facts relevant to this case , as submitted by the parties , may be summarised as follows .","Given his history of mental illness , the applicant was deprived of legal capacity and placed under the guardianship of his CARDINAL sister in DATE .","From DATE until DATE he was detained in FAC pursuant to the criminal and mental health legislation . In the applicant \u2019s first case , the ORG held that from DATE until DATE the applicant \u2019s deprivation of liberty had not been \u201c in accordance with a procedure prescribed by law \u201d within the meaning of LAW as he had been held in psychiatric detention without a decision of the competent civil court ( see PERSON and PERSON v. GPE , nos . CARDINAL\/CARDINAL , CARDINAL , CARDINAL and CARDINAL , DATE ) . He was awarded CARDINAL for non - pecuniary damage .","On DATE ORG placed the applicant in ORG and on DATE in ORG in accordance with the social care legislation . On DATE ORG held that the applicant \u2019s deprivation of liberty had not been \u201c in accordance with a procedure prescribed by law \u201d within the meaning of LAW as he had been held in psychiatric detention without a decision of the competent civil court . It found also that LAW had been breached because of lack of judicial review of the lawfulness of the applicant \u2019s detention .","On DATE the competent civil court finally examined the applicant \u2019s case . It ruled that the applicant could not be held in ORG . The applicant was released on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4905","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":1999,"docname":"COLAK v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant , born in DATE , is a NORP citizen who is resident in GPE . He is a driver .","The facts of the present case , as submitted by the applicant , may be summarised as follows .","In DATE the applicant filed a petition with the GPE Governor \u2019s office for leave to participate in a public auction for CARDINAL commercial taxi licence plates , which was to take place on DATE .","On DATE the ORG rejected the applicant \u2019s request on the ground that he did not meet the eligibility requirements for the auction .","On DATE ORG sent a letter to the applicant explaining that his request was rejected because he was earning his living not only as a driver but also as a cloth - seller , as indicated in the information in the registry of ORG in GPE . ORG further explained that , under decree no . CARDINAL\/CARDINAL , only those earning their living as drivers were eligible to take part in the auction .","On DATE the applicant brought an action before ORG . He alleged that he was eligible for the auction because he worked as a driver and was a member of the ORG Drivers\u2019 and ORG . He also stated that he had stopped working as a cloth - seller long before the auction . He asked the court to set aside ORG decision of CARDINAL DATE and to order a stay of execution of the decisions taken at the auction .","On DATE ORG set aside ORG decision of CARDINAL DATE . It held that the applicant would be eligible for similar auctions in the future . The court rejected the applicant \u2019s request for an order to stay the execution of the auction decisions .","On DATE the applicant brought an action before ORG against the GPE Governor \u2019s office . He alleged that he had suffered a loss of MONEY because he could not work as a taxicab driver as he was not admitted to the auction and could not buy a taxicab licence plate .","On DATE ORG dismissed the applicant \u2019s action . The court stated that even if the applicant had been admitted to the auction , he would not necessarily have succeeded in buying a taxicab licence plate . The court further considered that the applicant \u2019s claim was based on assumption and that he had not suffered damage . It held that the applicant would be eligible for future auctions according to ORG decision of DATE .","On DATE the applicant lodged an appeal with ORG ( ORG d\u2019Etat ) against the judgment of CARDINAL DATE .","On DATE ORG dismissed the applicant \u2019s appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5355","languageisocode":"ENG","respondent":"MLT","branch":"ADMISSIBILITY","date":2000,"docname":"PULLICINO v. MALTA","importance":3,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant is a NORP national , born in DATE . He is currently serving a fifteenyear prison sentence in GPE .","He is represented before the ORG by Professor PERSON , PERSON , PERSON and PERSON , all lawyers practising in GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","At the time of the events giving rise to his prosecution and conviction , the applicant was a Commissioner of Police in GPE .","In DATE the Government of DATE ordered the re - opening of a criminal inquiry into the circumstances surrounding the death of a suspect at the police headquarters in DATE which occurred when they were in opposition . In DATE , following the close of the inquiry , the applicant was charged with the following offences arising out of the incident : perjury ; wilful homicide ; giving false testimony under oath ; and CARDINAL separate charges of subornation of QUANTITY police witnesses . On DATE ORG declared the CARDINAL charges relating to witness subornation null and void .","Before the applicant \u2019s trial opened on DATE , the applicant , then on bail , appeared before a criminal court charged with having breached the conditions of his bail . On DATE the court revoked the applicant \u2019s bail , being satisfied that there was sufficient evidence to prove that the applicant had approached a prosecution witness in circumstances which showed that the intention was to corrupt the latter \u2019s evidence at the forthcoming trial . The court ordered a ban on the publication of these proceedings .","According to the applicant the trial opened against the background of intense and sustained media coverage and political discussion . The applicant cites among other incidents the appearance in a newspaper before the jury was empanelled of a report alleging that he had been found guilty of violations of human rights . The editor of the newspaper was subsequently found guilty on DATE of contempt of court . The court which convicted the editor considered that the report could have had a negative affect on the jury causing irreparable harm to the applicant . He also points to the fact that a witness who had failed to appear at the bail revocation proceedings was subsequently tried on a perjury charge DATE before his own trial with the result that the public learned in press reports dated CARDINAL and DATE that his bail had been revoked .","The trial commenced on DATE and was presided over by the same judge who had earlier ordered the applicant \u2019s bail to be revoked . Following empanelment the judge instructed the jury to disregard anything which they may have heard or read about the case .","On DATE the prosecution announced at the close of its case that it had no further evidence to present to the court . Among the witnesses called by the prosecution were CARDINAL persons who had testified against him in the earlier proceedings in which his bail had been revoked . According to the applicant the result was to allow these witnesses to give evidence on the circumstances which led to the revocation of the applicant \u2019s bail thus creating for him a new case to answer . QUANTITY police officers also gave evidence against the applicant . CARDINAL of these officers who had admitted to beating up the suspect had been granted a presidential pardon to secure their testimony against the applicant .","Throughout this phase of the trial the applicant took detailed notes of the case against him in order to facilitate the giving of his own evidence in rebuttal at the appropriate moment . The applicant began his testimony on DATE . When the TIME sitting was adjourned at TIME , the prosecution requested the court to disallow the applicant use of his notes . The court upheld the request and ordered the confiscation not only of the notes but also other documentation including legal materials which the applicant had assembled in his place of confinement for the purposes of preparing defence .","The TIME sitting resumed at TIME on DATE . Before the jury were admitted to the courtroom , the applicant \u2019s counsel informed the presiding judge that the applicant was experiencing difficulty in testifying without the aid of his notes . Submissions were made on this matter by counsel for both sides . The applicant \u2019s counsel insisted that the materials in the case were so voluminous that it would be impossible for any witness to remember everything without the aid of reference materials . The presiding judge decided to postpone a decision on the issue . The applicant resumed his evidence . At TIME the prosecution commenced its cross - examination of the applicant . The cross - examination was later suspended , whereupon the applicant \u2019s counsel again raised the issue of his client \u2019s notes . Both counsel entered TIME in the record of the proceedings setting out their respective views on the matter . At a later stage the presiding judge ruled as follows :","\u201c Until such time as the accused concludes his testimony he is precluded from having access to any writing except that indicated in section CARDINAL of LAW . \u201d","The applicant concluded his evidence on DATE . The following days were taken up with matters such as the hearing of witnesses requested by the jury , the defence speech , the prosecution \u2019s reply , the addresses to the jury and the latter \u2019s deliberations and verdict .","In his summing up to the jury the judge gave directions on the relevant law and stressed that it was for the jury to reach its decision on the basis of the facts and without taking into account any extraneous matters . The judge advised the jury that the applicant was to be presumed innocent until proved guilty and it was for the prosecution to prove guilt to the criminal standard of beyond reasonable doubt . He further stressed the need to subject to scrutiny the evidence of those witnesses who had testified in return for a pardon and that the applicant could not be convicted on the sole evidence of an accomplice .","On DATE the jury , after DATE of deliberations , found the applicant not guilty of the charge of wilful homicide but guilty of being an accomplice to the crime of causing grievous bodily harm resulting in death . According to the applicant he was never charged with the latter offence but was nevertheless found guilty of it . He was found not guilty of the perjury charge but guilty of giving false evidence under oath . However , on DATE the court acquitted him of the perjury charge and declared the related charge to be time - barred .","The applicant was sentenced to a term of imprisonment of DATE on the charge of being an accomplice to the crime of causing grievous bodily harm resulting in death .","On DATE ORG confirmed the judgment and sentence of the trial court . Although the court held for the first time that the confiscation of a defendant \u2019s notes at his trial was illegal under NORP law , it nonetheless found that no miscarriage of justice had taken place at the applicant \u2019s trial having regard to the strength of the evidence against him . As to the applicant \u2019s complaint that the fairness of the trial was impaired on account of the adverse media reporting of the case , the court held that the balance between the applicant \u2019s rights as an accused person and the freedom of the press had not been disturbed to the point where it could be said that the media coverage had a negative influence on the deliberations of the jury and the verdict reached . The court also ruled that the applicant had the opportunity to challenge the presence of the trial judge under domestic law . Since he had failed to do so it was no longer open to him to raise the issue of the judge \u2019s impartiality on appeal .","The applicant appealed to ORG contending that he had been denied a fair trial in breach of the guarantees laid down in LAW and LAW . On DATE his appeal was rejected , the court being of the opinion that the applicant \u2019s complaints whether taken individually or collectively did not substantiate that he had been denied a fair trial .","The applicant subsequently appealed to ORG , which in its judgment of CARDINAL DATE dismissed his appeal . ORG acknowledged that the applicant \u2019s right to a fair trial had been breached since the confiscation of his reference materials had seriously disrupted his defence . It stated in this regard that :","\u201c ... the confiscation of the notes and other books of the applicant and this after he has already started testifying and without a forewarning , certainly hindered the testimony given by him in defence , both from the factual aspect and from the psychological one and this particularly because those notes which were prepared by him to conduct the defence did not necessarily refer to evidence previously given ...","... The ORG is therefore of the opinion that in this regard and limited to this grievance , the right of the [ applicant ] to a fair hearing before the first ORG was violated ... \u201d","However ORG then proceeded to rule that the criminal proceedings , taken as a whole , had been fair . The court noted also that it was relevant that at no time before ORG had the applicant asked to give evidence with the assistance of those materials .","In line with the rulings of the appellate courts , ORG also found that the applicant had not adduced any concrete proof that the jury or the trial or appeal court judges had been influenced by press coverage of the proceedings or related political statements . It noted , inter alia , that the jury had taken a considerable length of time in reaching a verdict . Furthermore , the court rejected the applicant \u2019s challenge to the impartiality of the trial judge , inter alia , on the ground that he had not raised this matter at the appropriate moment in the trial and had not availed himself of domestic remedies for this purpose .","B. Relevant domestic law","Section CARDINAL of the LAW of GPE provides :","\u201c \u2026","( CARDINAL ) Every person who is charged with a criminal offence \u2013","\u2026","( b ) shall be given adequate time and facilities for the preparation of his defence ; \u2026 \u201d","Sections CARDINAL - CARDINAL of the Criminal Code provide as relevant :","\u201c CARDINAL . ORG may , if it thinks it necessary or expedient in the interest of justice \u2013","\u2026","( c ) if it thinks fit receive the evidence , if tendered , of any witness ( including the appellant ) who is a competent but not compellable witness , and , if the appellant makes an application for the purpose , of the husband or wife of the appellant , in cases where the evidence of the husband or wife could not have been given at the trial except on such application , subject to the provisions of section CARDINAL .","Without prejudice to the generality of the last preceding section , where evidence is tendered to the court under that section , the court shall , unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal , exercise its power under that section of receiving it if \u2013","( a ) it appears to it that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal ; and","( b ) it is satisfied that it was not adduced at the trial but that there is a reasonable explanation for the failure so to adduce it .","( CARDINAL ) Where an appeal against conviction is allowed by reason only of evidence received or available to be received by ORG under sections CARDINAL and CARDINAL or by reason of a point raised under paragraph ( b ) of subsection ( CARDINAL ) of section CARDINAL and in each case it appears to the court that the interests of justice so require , the court may , instead of directing the entry of a judgment and verdict of acquittal as provided by subsection ( CARDINAL ) of section CARDINAL or by paragraph ( b ) of subsection ( CARDINAL ) of section CARDINAL , order the appellant to be retried . \u201d","Section CARDINAL of the Code of ORG Procedure reads as follows :","\u201c A witness may refresh his memory by referring to any writing made by himself or by another person under his direction at the time when the fact occurred or immediately thereafter , or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing ; but in such case , the writing must be produced and may be seen by the opposite party ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77382","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2006,"docname":"DUCHO\u0147OV\u00c1 v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","In a letter of CARDINAL DATE the applicant informed ORG ( ministerstvo spravedlnosti ) that in DATE and DATE PERSON , her sister - in - law living in GPE , had forced her into prostitution in PERSON establishment under threat that she would tell the applicant \u2019s husband that his wife had prostituted herself during her visits in GPE .","On DATE ORG informed the applicant that her criminal complaint for defamation and blackmail , to which she had joined a claim for damages , had been transferred to ORG ( okresn\u00ed st\u00e1tn\u00ed zastupitelstv\u00ed ) . On DATE the latter informed her that the complaint would be dealt with by ORG ( m\u011bstsk\u00e9 st\u00e1tn\u00ed zastupitelstv\u00ed ) which , in turn , on DATE , transferred it to ORG ( obvodn\u00ed odd\u011blen\u00ed policie ) . Having questioned the applicant on DATE and her husband and son on DATE , ORG sent it back to ORG on DATE .","On DATE and CARDINAL DATE respectively , the applicant informed ORG that she maintained her criminal complaint claiming damages of CHF MONEY ( EUR CARDINAL ) . She further criticised the prosecutor for the fact that her husband and son had been implicated in the investigation proceedings and interviewed by the police .","In a letter of DATE ORG , having summed up the previous procedural steps taken by the authorities involved in the case , replied that the hearing of the applicant \u2019s husband and son had been necessary in order to established the relevant circumstances . The prosecutor further noted :","\u201c In your letters of [ CARDINAL DATE , DATE and DATE respectively ] ... you further claimed damages of CHF MONEY . At this stage of the proceedings , ... there is nothing which would deprive you from filing a civil action for protection of \u2018 personal rights\u2019 and claim damages if you feel to be injured by the statements of Ms [ B. ] . Within the framework of the criminal proceedings , which however are not yet pending because , as you have already been said above , the case is only in a stage of examination of the facts ... , not in a stage of criminal prosecution within the meaning of the Code of Criminal Procedure , you could claim damages caused by a criminal act of a third person . ... [ T]his is , however , premature at this stage of the proceedings .","I inform you that the case is in the stage of examination within the meaning of section CARDINAL(CARDINAL ) of LAW . It was not yet possible to proceed with the criminal prosecution and , so far as you seek the financial compensation , you have to address a civil court with a civil action . \u201d","In a letter of DATE the ORG informed the applicant that her criminal complaint against PERSON could not be settled , ORG not yet having received letters rogatory for a NORP prosecutor to hear PERSON in GPE where PERSON had her residence .","On DATE PERSON was questioned . She denied the applicant \u2019s accusation .","On DATE the applicant \u2019s son was again questioned , but used his right not to testify . On CARDINAL DATE the applicant and her husband were reheard . They maintained the contents of their previous arguments and statements .","In a letter of DATE ORG informed the applicant that the examination of her criminal complaint was still pending and should finish by DATE .","On DATE PERSON was again questioned , denying the applicant \u2019s accusation . Her son corroborated PERSON statement .","On DATE the applicant was informed that the file had been sent to ORG ( ORG krimin\u00e1ln\u00ed policie a vy\u0161et\u0159ov\u00e1n\u00ed ) with a proposal to institute criminal proceedings .","By a resolution ( usnesen\u00ed ) of DATE ORG decided to refuse to act in a matter under section DATE ) of LAW as there was no reasonable suspicion that PERSON had committed any criminal offence . The ruling further stated :","\u201c Having examined the facts as provided for in section CARDINAL of LAW , [ the police authority ] did not find any facts which would prove that any criminal offence had been committed . ... Bearing in mind that criminal legal relations were not affected , no criminal prosecution of a particular person could be commenced . [ It is clear ] that [ the problem concerns ] the civil legal relations which could be settled in a civil way . \u201d","On DATE ORG , following the applicant \u2019s complaint ( st\u00ed\u017enost ) , quashed this resolution , and sent the case back to ORG for further investigation .","By a resolution of DATE the latter , having complemented the examination of the facts , again decided to refuse to act in a matter under LAW ) of LAW as there were no factors which would confirm the applicant \u2019s incriminating statement that she had been blackmailed by PERSON or that the latter had defamed her .","On DATE ORG sent a copy of the resolution to the applicant .","In a letter of DATE addressed to the ORG , the applicant expressed her disappointment with the results of the examination proceedings and with the manner in which her criminal complaint had been dealt with . She pointed out that the resolution had not been notified to her .","On DATE the applicant filed a complaint against ORG resolution of DATE .","On DATE ORG ( krajsk\u00fd st\u00e1tn\u00ed z\u00e1stupce ) found it unsubstantiated stating , inter alia :","\u201c Your submission was not examined as a complaint against the aforesaid resolution ... , because while the police authority immediately dispatched the resolution ... , it did not succeed to notify it to you and , after the mail having been consigned at the post office ... , you did not collect it within DATE . DATE of this time - limit is considered ... as DATE of the delivery of the mail , from which a DATE time - limit for filing a complaint starts running . For these reasons , the complaint filed after the expiry of the time - limit had to be rejected without an examination on the merits ...","... In the examination proceedings [ the police authorities ] collected all material in evidence necessary for clarification and examination of [ your criminal complaint ] ; however , the suspicion of committing an offence was not confirmed . This conclusion does not affect the fact that you can claim damages [ against PERSON ] by way of a civil action brought to a competent court . \u201d","LAW governs the procedure before the formal institution ( commencement ) of criminal prosecution . Under this chapter , the police authorities inter alia receive and obtain relevant information and evidence and conduct investigations with a view to detecting criminal offences , establishing their perpetrators and preventing criminal activities ( examination proceedings DATE prov\u011b\u0159ov\u00e1n\u00ed ) .","The procedure before the formal institution of a criminal prosecution may result in a decision to refuse to act in a matter under section CARDINALa(CARDINAL)-(CARDINAL ) ( odlo\u017een\u00ed v\u011bci ) or to refer a matter to the minor offences , disciplinary or other authority under LAW ) ( odevzd\u00e1n\u00ed v\u011bci ) , or to institute a formal criminal prosecution ( zah\u00e1jen\u00ed trestn\u00edho st\u00edh\u00e1n\u00ed ) under section CARDINAL(CARDINAL ) .","In accordance with section CARDINAL ) , a prosecutor or police authority is to refuse to act in a matter if there is no suspicion that a criminal offence has been committed and no other steps are appropriate , such as for example referring the matter to the competent minor offences authority or disciplinary authority .","Under section DATE ) , a prosecutor or police authority is to refuse to act in a matter also if the institution ( commencement ) of a criminal prosecution is not permitted pursuant to section CARDINAL(CARDINAL ) .","Under section CARDINALa(CARDINAL ) , a prosecutor or police authority is to refuse to act in a matter if there are no factors allowing the institution of a criminal prosecution under LAW . Once the reasons for the refusal ceased to exist , the criminal prosecution shall commence .","In accordance with sections CARDINALa(CARDINAL ) and DATE ) , a copy of the decision not to act in a matter is to be served on a victim , who has a right of appeal against it . The person on the basis of whose motion the decision was given is notified about it if he or she asks for .","Section PERSON provides for a temporary refusal to act in a matter .","The institution of formal criminal prosecutions is governed by LAW , LAW . Under section MONEY ) , a police authority is to immediately instigate a criminal prosecution ( zah\u00e1jen\u00ed trestn\u00edho st\u00edh\u00e1n\u00ed ) if the information obtained indicates that a criminal offence has been committed by a particular person and if there is no reason for refusing to act in the matter pursuant to sections CARDINALa(CARDINAL ) , CARDINAL ) or DATE ) .","According to LAW , any natural person has the right to protection of his or her personal integrity ( osobnost ) , in particular his or her life and health , civil and human dignity , privacy , name and personal characteristics .","Pursuant to section CARDINAL(CARDINAL ) , any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction .","Section CARDINAL ) provides that in cases when the satisfaction obtained under Section PERSON ) is insufficient , in particular because a person \u2019s dignity and position in society has been considerably diminished , the injured person is entitled to compensation for non - pecuniary damage . Under paragraph CARDINAL of section CARDINAL , when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person \u2019s rights occurred ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60822","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2002,"docname":"CASE OF A. v. THE UNITED KINGDOM","importance":1,"conclusion":"No violation of Art. 6-1 as regards parliamentary immunity;No violation of Art. 6-1 as regards lack of legal aid;No violation of Art. 8;No violation of Art. 14+6;No violation of Art. 13","judges":"Gaukur J\u00f6rundsson;Nicolas Bratza","text":["The applicant is a GPE national , born in DATE and living in GPE . She lives with her CARDINAL children in a house owned by the local housing association , ORG ( ORG ) .","The ORG moved the applicant and her children to CARDINAL FAC in DATE following a report that she was suffering serious racial abuse at her then current address .","Concorde Drive is in the parliamentary constituency of ORG . On DATE , the member of ORG ( MP ) for the GPE LOC constituency , Mr PERSON , initiated a debate on the subject of municipal housing policy ( and the ORG in particular ) in ORG . During the course of his speech , the MP referred specifically to the applicant several times , giving her name and address and referring to members of her family . He commented as follows :","\u201c The subject of anti - social behaviour by what newspapers frequently call ' neighbours from hell ' has been a staple of social housing throughout the country for some time , and the government are , of course , in the process of taking steps to provide local authorities with the power to do something about such behaviour . Whether authorities such as GPE will actually use the power is another matter .","My reason for raising the subject of CARDINAL FAC in my constituency and the behaviour of its shifting population is not just to draw attention to another example of neighbours from hell ; it is also to note that housing practices by local authorities , which it appeared had been stamped out in DATE , are beginning to re - emerge in the voluntary housing movement . ...","ORG purchased CARDINAL FAC in my constituency in DATE ... and in DATE it moved in as the new tenants [ the applicant ] and her CARDINAL children , who are now aged DATE . Her brother , currently in prison , also gives QUANTITY as his permanent address . ...","The Government 's own ORG , ' ORG , published in DATE , noted :","' Such behaviour manifests itself in many different ways and at varying levels of intensity . This can include vandalism , noise , verbal and physical abuse , threats of violence , racial harassment , damage to property , trespass , nuisance from dogs , car repairs on the street , joyriding , domestic violence , drugs and other criminal activities such as burglary . '","Inevitably , the majority \u2013 if not all \u2013 of these activities have been forced on the neighbours of CARDINAL FAC during the tenancy of that property and the garage further up the street that goes with it , by [ the applicant ] , her children and their juvenile visitors , who seem strangely reluctant to attend school during TIME , and even more adult visitors who come to the house at all times of DATE and night , frequently gaining entry by unorthodox means such as the bathroom window . Indeed , it is fair to say that there have been times when occupation of the house by the visitors has been more frequent than that of [ the applicant ] .","So far as the garages grouped further along Concorde Drive are concerned \u2013 CARDINAL of the garages automatically comes with the tenancy of No . DATE complaints consist of numerous youths hanging around , vandalising cars , climbing on and damaging the garage roofs , under the apparent leadership , or at least the spirited concurrence of the [ applicant 's ] family , adult and children , which makes improvement of those garages by other owners a complete waste of time . More seriously , arson inside the garage belonging to No . CARDINAL , and the regular destruction of its doors , have led other legitimate users of the garage to park their vehicles elsewhere for safety reasons .","But it is the conduct of [ the applicant ] and her circle which gives most cause for concern . Its impact on their immediate neighbours extends to perhaps a QUANTITY houses on either side . Since the matter was first drawn to my attention in DATE , I have received reports of threats against other children ; of fighting in the house , the garden and the street outside ; of people coming and going TIME a day \u2013 in particular , a series of men late at night ; of rubbish and stolen cars dumped nearby ; of glass strewn in the road in the presence of [ the applicant ] and regular visitors ; of alleged drug activity ; and of all the other common regular annoyances to neighbours that are associated with a house of this type . \u201d","The applicant denies the truth of the majority of the allegations . The MP has never tried to communicate with her regarding the complaints made about her by her neighbours and has never attempted to verify the accuracy of his comments made in his speech either before or after the debate . Shortly before the debate , the MP issued a press release to several newspapers , including the GPE - based ORG and the national ORG . The press release was subject to an embargo prohibiting disclosure until the precise time when the speech commenced . The contents of the press release were substantially the same as those of the MP 's speech . DATE , both newspapers carried articles consisting of purported extracts of the speech , although these were based upon the press release . Both articles included photographs of the applicant and mentioned her name and address . The main headline in ORG was :","\u201c MP Attacks ' Neighbours From Hell ' \u201d","In the Daily Express the headline was :","\u201c MP names nightmare neighbour \u201d","The applicant was approached by journalists and television reporters asking for her response to the ORG 's allegations and her comments were summarised in each newspaper DATE , although they were not given as much prominence .","The applicant subsequently received hate mail addressed to her at CARDINAL FAC . CARDINAL letter stated that she should \u201c be in houses with your own kind , not in amongst decent owners \u201d . Another letter stated :","\u201c You silly black bitch , I am just writing to let you know that if you do not stop your black nigger wogs nuisance , I will personally sort you and your smelly jungle bunny kids out . \u201d","The applicant was also stopped in the street , spat at and abused by strangers as \u201c the neighbour from hell \u201d .","On DATE a report was prepared for the ORG by a group which monitors racial harassment and attacks . The report found that \u201c it has now come to the point where [ the applicant ] has been put in considerable danger as a result of her name being released to the public \u201d . The report recommended that the applicant be re - housed as a matter of urgency . She was re - housed in DATE and her children were obliged to change schools .","On DATE the applicant wrote through her solicitors to the MP outlining her complaints and seeking his comments thereon . The letter was referred to ORG by the MP . The Speaker 's representative replied to the MP on CARDINAL DATE to the effect that the ORG 's remarks were protected by absolute parliamentary privilege :","\u201c Subject to the rules of order in debate , Members may state whatever they think fit in debate , however offensive it may be to the feelings or injurious to the character of individuals , and they are protected by this privilege from any action for libel , as well as from any other molestation . \u201d","This letter was copied and forwarded to the applicant 's solicitors in DATE .","Also on DATE , the applicant 's solicitors wrote to the then Prime Minister , Mr PERSON , asking that , as leader of the political party to which Mr PERSON belonged , he investigate the applicant 's complaints and take appropriate action . ORG replied on DATE , stating that :","\u201c It is a matter for individual Members of ORG to decide how they deal with their constituents and it is not for the Prime Minister to comment . There is a strict Parliamentary convention that Members of ORG do not intervene in the affairs of other Members ' constituencies and this applies equally to the Prime Minister . \u201d","Words spoken by MPs in the course of debates in ORG are protected by absolute privilege . This is provided by LAW , which states :","\u201c ... the freedome of speech and debates or proceedings in ORG ought not to be impeached or questioned in a court or place out of Parlyament . \u201d","The effect of this privilege was described by Lord Chief Justice PERSON in Ex parte PERSON ( DATE ) Queen 's Bench Reports CARDINAL at CARDINAL :","\u201c It is clear that statements made by Members of either ORG of ORG in their places in the ORG , though they might be untrue to their knowledge , could not be made the foundation of civil or criminal proceedings , however injurious they might be to the interest of a third party . \u201d","Statements made by MPs outside ORG are subject to the ordinary laws of defamation and breach of confidence , save where they are protected by qualified privilege .","NORP The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest . In ORG [ DATE ] CARDINAL Appeal Cases CARDINAL , which concerned allegations made in the NORP press about an NORP political crisis in DATE , Lord PERSON of GPE stated in ORG , at page CARDINAL :","Depending on the circumstances , the matters to be taken into account include the following . The comments are illustrative only . CARDINAL . The seriousness of the allegation . The more serious the charge , the more the public is misinformed and the individual harmed , if the allegation is not true . CARDINAL . The nature of the information , and the extent to which the subject matter is a matter of public concern . CARDINAL . The source of the information . Some informants have no direct knowledge of the events . Some have their own axes to grind , or are being paid for their stories . CARDINAL . The steps taken to verify the information . CARDINAL . The status of the information . The allegations may have already been the subject of an investigation which commands respect . CARDINAL . The urgency of the matter . News is often a perishable commodity . CARDINAL . Whether comment was sought from the plaintiff . He may have information others do not possess or have not disclosed . An approach to the plaintiff will not always be necessary . CARDINAL . Whether the article contained the gist of the plaintiff 's side of the story . CARDINAL . The tone of the article . A newspaper can raise queries or call for an investigation . It need not adopt allegations as statements of fact . CARDINAL . The circumstances of the publication , including the timing . \u201d","Press coverage , to the extent that it fairly and accurately reports parliamentary debates , is generally protected by a form of qualified privilege which is lost only if the publisher has acted \u201c maliciously \u201d . \u201c Malice \u201d , for this purpose , is established where the report concerned is published for improper motives or with \u201c reckless indifference \u201d to the truth . A failure to make proper enquiries is not sufficient in itself to establish malice , but it may be evidence from which malice ( in the sense of reckless indifference to the truth ) can reasonably be inferred .","MPs can waive the absolute immunity which they enjoy in ORG as a result of LAW , which provides :","\u201c ( CARDINAL ) Where the conduct of a person in or in relation to proceedings in ORG is in issue in defamation proceedings , he may waive for the purposes of those proceedings , so far as concerns him , the protection of any enactment or rule of law which prevents proceedings in ORG being impeached or questioned in any court or place out of ORG .","( CARDINAL ) Where a person waives that protection \u2013","( a ) any such enactment or rule of law shall not apply to prevent evidence being given , questions being asked or statements , submissions , comments or findings being made about his conduct , and","( b ) none of those things shall be regarded as infringing the privilege of either ORG of ORG .","( CARDINAL ) The waiver by CARDINAL person of that protection does not affect its operation in relation to another person who has not waived it .","( CARDINAL ) Nothing in this section affects any enactment or rule of law so far as it protects a person ( including a person who has waived the protection referred to above ) from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG . \u201d","General control is exercised over debates by the Speaker of each ORG of ORG . Each ORG has its own mechanisms for disciplining members who deliberately make false statements in the course of debates . Deliberately misleading statements are punishable by ORG as a contempt . Alternatively , as ORG on Procedure ( DATE ) has observed :","\u201c ... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the ORG . He can approach his Member of ORG with a view to his tabling DATE , or an amendment where appropriate ; there may be cases which can be raised through Questions if some ministerial responsibility can be established ; he can petition the ORG , through a Member ; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified . We believe that in these circumstances , the ORG would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another , particularly if the latter was the source of the statement complained of , and so long as the courtesies of proper notification were observed . \u201d","Under Schedule CARDINAL , Part II of LAW DATE , \u201c [ p]roceedings wholly or partly in respect of defamation \u201d are excepted from the scope of the civil legal aid scheme .","\u201c Green Form \u201d assistance is available to potential litigants with insufficient means in order to allow them to receive TIME free legal advice from a solicitor in cases of alleged defamation . The time can be extended upon application .","Under section CARDINAL of ORG DATE , solicitors may enter into conditional fee agreements in respect of any type of proceedings specified in an Order made by the Lord Chancellor . A conditional fee agreement is defined under that section as an agreement in writing between a solicitor and his client which provides that the solicitor 's fees and expenses , or any part of them , are to be payable only in specified circumstances . LAW DATE ( LAW of DATE ) permitted conditional fee agreements in relation to \u201c all proceedings \u201d . The Order entered into force on DATE . A conditional fee agreement can not prevent an unsuccessful litigant from being potentially liable to pay all or part of his opponent 's costs in connection with the proceedings .","The limitation period applicable to defamation proceedings in respect of statements made in DATE was DATE pursuant to section CARDINAL of LAW , as inserted by section CARDINAL(CARDINAL ) of ORG DATE .","A joint committee of both ORG was set up in DATE and tasked with reviewing the law of parliamentary privilege . The committee received written and oral evidence from a wide variety of sources from within GPE and abroad and held CARDINAL sessions of evidence in public . Its report was published in DATE . LAW sets out its conclusions on parliamentary immunity :","\u201c CARDINAL . The immunity is wide . Statements made in ORG may not even be used to support a cause of action arising out of ORG , as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in ORG as proof of malice . The immunity is also absolute : it is not excluded by the presence of malice or fraudulent purpose . Article CARDINAL protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly . ... In more precise legal language , it protects a person from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG .","A comparable principle exists in court proceedings . Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation . The rationale in the CARDINAL cases is the same . The public interest in the freedom of speech in the proceedings , whether parliamentary or judicial , is of a high order . It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy .","It follows that we do not agree with those who have suggested that members of ORG do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government . Unlike members of ORG , local councillors are liable in defamation if they speak maliciously . We consider it of utmost importance that there should be a national public forum where all manner of persons , irrespective of their power or wealth , can be criticised . Members should not be exposed to the risk of being brought before the courts to defend what they said in ORG . Abuse of parliamentary freedom of speech is a matter for internal self - regulation by ORG , not a matter for investigation and regulation by the courts . The legal immunity principle is as important DATE as ever . The courts have a duty not to erode this essential constitutional principle . \u201d","DATE provides :","\u201c ( a ) ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions .","( b ) The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph ( a ) above . For this purpose ORG shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members . In addition , a special agreement shall be concluded with ORG of GPE defining the privileges and immunities which the ORG shall enjoy at its seat . \u201d","In pursuance of paragraph ( b ) above , the member GPE , on DATE , entered into LAW . This provides , in its relevant parts , as follows :","\u201c Article CARDINAL","Representatives to ORG and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions .","Article CARDINAL","During the sessions of ORG , ORG and their substitutes , whether they be members of ORG or not , shall enjoy :","( a ) on their national territory , the immunities accorded in those countries to members of ORG ;","( b ) on the territory of all other member GPE , exemption from arrest and prosecution . ... \u201d","DATE provides :","\u201c Privileges , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . \u201d","Article CARDINAL of the LAW on the Privileges and Immunities of ORG , adopted in accordance with LAW establishing a ORG and a ORG of ORG , provides :","\u201c Members of ORG shall not be subject to any form of inquiry , detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties . \u201d","Under LAW members of the PERSON ( the lower house of ORG ) may never be held liable for votes cast in the exercise of their functions or on the ground of oral or written statements made in the course of their functions \u2013 so - called \u201c professional immunity \u201d . In these matters , members enjoy immunity from criminal , civil and administrative proceedings . The President however may require a member to keep to the subject or call the member to order if he \/ she violates the decency and dignity of the ORG or makes defamatory statements ( section CARDINAL of LAW ) .","Under LAW , criminal or civil proceedings against an MP may be taken without the consent of the NORP only where they are \u201c manifestly not connected with the political activity of the member in question \u201d \u2013 so - called \u201c non - professional immunity \u201d . MPs may therefore be subject to civil proceedings , the issue of whether the matter has manifestly no connection with their duties being determined by the prosecuting authorities . Where the authority considers that that connection is manifest or unclear , it must seek the consent of the PERSON . Where the MP concerned or CARDINAL of the members of ORG require it , consent must also be asked of the PERSON . According to the prevailing view , this level of immunity merely prevents legal action for a limited period of time , proceedings becoming possible once the MP loses his \/ her immunity status .","The NORP Government emphasised that these provisions had strong historical roots in the national legal system , serving to guarantee the protection of MPs in their political activity , in particular their freedom to vote and state their views .","Articles DATE and CARDINAL of the NORP Constitution prohibit proceedings against a member of either ORG concerning the expression of opinion or votes cast . Save in the case of flagrant d\u00e9lit , no member of a ORG may be summoned before a court or arrested during a parliamentary session unless the ORG has given consent . This immunity , even against acts infringing the rights of citizens , is regarded in domestic law and practice as an essential guarantee for the functioning of the legislature and its absolute nature as essential to the efficacy of that guarantee . Private rights have to be regarded as ceding to the overriding public interest .","ORG drew attention to LAW , which confers upon members of the ORG and ORG an immunity from every category of legal proceedings .","They pointed out that the right to parliamentary immunity in the GPE is not absolute . LAW of both the ORG and ORG cover cases in which an MP abuses the protection afforded by LAW . The President in each ORG may admonish any member who violates LAW and then offer the member concerned a chance to retract the offending remark . If the member refuses to make a retraction , or persists in violating LAW , the President may forbid him or her from speaking further or from attending the rest of the sitting or further sittings DATE . Similar immunities and disciplinary procedures apply at the provincial and municipal level .","ORG submitted that parliamentary immunity is indispensable to the operation of democracy and that to give the judiciary authority over what MPs say in their deliberations would represent an unacceptable infringement of the separation of powers .","According to section CARDINAL(CARDINAL ) of the LAW ( DATE ) , an MP shall not be prevented from carrying out his or her duties as a representative . Section CARDINAL ) provides that an MP can not be charged in a court of law or be deprived of liberty owing to opinions expressed by the representative in ORG or owing to conduct in the consideration of a matter , unless ORG gives consent by a majority of CARDINAL of the votes cast . The provisions concerning parliamentary privilege and immunities have a long tradition in the work of ORG , dating back to DATE . The only restriction on the exercise of the freedom of expression of a representative is the requirement in section GPE ) that a representative conduct himself or herself with decorum and not act offensively towards another person . If a representative breaches this condition , the Speaker may issue a warning or prohibit the representative from continuing to talk . ORG may caution a representative who has repeatedly breached the order or suspend him or her for a maximum of DATE .","A waiver of immunity may be requested by any person having the right to prosecute or to request prosecution . The Speaker examines whether the party has such a right and whether the intended prosecution concerns the MP 's official actions . ORG decides on such a request in ordinary session and the decisive question is whether the intended prosecution is of such a nature that there is a public or private interest to refer the matter to a court of law . In most cases , ORG has deemed such requests manifestly ill - founded and rejected them . In no case based on alleged damage to another person 's reputation or allegedly incorrect information given by an MP has a prosecution been authorised .","ORG considered that freedom of speech and the general freedom to act were essential for the performance of the duties of an MP .","The provisions in the NORP system which protect the representatives of the people in the performance of their duties date back to DATE , deriving from respect for the expression of the will of the people and the necessity in a democratic State for elected representatives to exercise their mandate freely without fear of legal action or interference from either the executive or the judiciary . The immunity bestowed is absolute in that it covers all acts carried out by MPs in the exercise of their functions regarding criminal and civil liability and permanent since it continues after expiry of their mandates . The immunity is not concerned with the private interests of the MP but with the function that he or she exercises . Thus , it can not be waived by an individual MP .","However , the immunity conferred is strictly interpreted and does not extend to acts outside the exercise of the ORG 's mandate , including speech in a private capacity within the ORG or statements in press articles even where these merely repeat statements made during an ORG debate . Parliamentary immunity carries with it a requirement of discretion ( devoir de r\u00e9serve ) and unacceptable forms of expression may be subject to internal admonition .","ORG submitted that parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen , but as a fundamental liberty . They argued that a cursory consideration of the history of the principle , its widespread domestic and international constitutional entrenchment and the case - law of the ORG all suggest that parliamentary immunity is protected by the ORG . They supported this argument by reference to the preamble to the LAW .","ORG pointed to , inter alia , Articles CARDINAL and CARDINAL of LAW , which provide :","\u201c [ CARDINAL ] ORG shall make its own rules and standing orders , with power to attach penalties for their infringement , and shall have power to ensure freedom of debate ...","[ CARDINAL ] The Members of each ORG of the ORG [ ORG ] ... shall not , in respect of any utterance in either ORG , be amenable to any court or any authority other than the ORG itself . \u201d","Article CARDINAL.CARDINAL.CARDINAL of the LAW expressly recognises , and imposes upon the ORG , an obligation to defend and vindicate the citizen 's right to his or her good name . However , ORG indicated that there is no absolute right to reputation or protection from defamatory utterances under NORP law .","They drew attention also to the privileges and immunities enjoyed by representatives to ORG of ORG and members of ORG ( see paragraphs CARDINAL above ) . They submitted that it was difficult to see how such immunities could be consistent with the LAW if the conferring by individual GPE of similar immunities in respect of their own Parliaments itself violated the LAW .","ORG argued that the importance of the legitimate objectives pursued by parliamentary immunity was difficult to overstate and that it was for the national authorities to seek to balance the right of individual citizens to a good name with the right of free parliamentary expression . In reviewing the proportionality of the balance struck , they said that the ORG must have regard to the fact that GPE were in principle better placed than an international court to evaluate local needs and conditions .","ORG pointed out that parliamentary privilege is recognised by a large number of democratic countries across LOC and the rest of the world , including GPE , together with international bodies such as ORG and ORG . They submitted that such a privilege is a fundamental aspect of the separation of powers and the rule of law , both of which are political traditions upon which ORG were founded .","They stated that , notwithstanding a recent revision in GPE of the rules of parliamentary privileges and immunities , the protection of free speech in ORG against interference by the courts has never been questioned there and continues to be considered essential to parliamentary government . In the event of any dispute between ORG and the judiciary as to the application of a privilege , it is a \u201c neutral \u201d authority , in the form of ORG , which has the final decision . That court is made up of CARDINAL judges , CARDINAL of whom are appointed by ORG , CARDINAL by the supreme courts and CARDINAL by the President of the Republic .","ORG submitted that parliamentary privilege pursues its legitimate aim in a proportionate manner , particularly since its scope is limited to parliamentary activity . They argued that MPs would not be able to speak their mind freely in ORG in the absence of an absolute immunity .","There is no general provision granting members of ORG ( ORG ) immunity from judicial processes . However , LAW confers immunity in CARDINAL limited situations . Members can not be arrested on the way to or from ORG ( unless apprehended in \u201c public crimes \u201d ) and can not be called to account outside the meetings of ORG for opinions expressed there . This immunity comprises both criminal and civil liability , and extends even to speech where it is alleged that the member has intentionally expressed untruths or where the member has expressed himself or herself on a subject unconnected with the issue under debate . An individual member can not waive the immunity . The absolute nature of the immunity is regarded as necessary to prevent undermining the general purpose of the provision , which is to guarantee the unfettered exchange of information and ideas in ORG , being considered indispensable in the NORP democratic system .","However , a member may be held accountable within ORG , improper or insulting behaviour being prohibited and subject to the potential sanction of a warning from the President or exclusion by ORG from the right to speak or participate in the proceedings for the rest of DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","14","6","8"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-21977","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2001,"docname":"KR\u00d6HNERT v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant is a NORP national , born in DATE and living in LOC , GPE . Until DATE , he was serving a prison term in GPE . He was placed under guardianship by ORG ( ORG ) in DATE and his health requires permanent medical control . Before the ORG , he is represented by Mr R. Giebenrath , a lawyer practising in GPE and GPE . The respondent Government are represented by their Agent , Mr PERSON , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the Sokolov ORG ( okresn\u00ed soud ) ( \u201c the ORG \u201d ) convicted the applicant of assault on a public officer and sentenced him conditionally to a DATE \u2019s imprisonment . The applicant was further prohibited from driving motor vehicles for DATE . ORG established that on DATE the applicant had driven his car at a policeman who had attempted to stop him after he had committed a road traffic offence . The policeman saved himself by jumping to CARDINAL side . The Sokolov District Attorney ( okresn\u00ed st\u00e1tn\u00ed z\u00e1stupce ) appealed against the judgment .","On DATE ORG ( krajsk\u00fd soud ) ( \u201c the ORG \u201d ) modified the first instance judgment in that it imposed DATE prison sentence on the applicant . It also prohibited the applicant from driving motor vehicles for DATE . ORG noted that the applicant is a foreigner without a permanent or temporary residence in GPE . It therefore considered that it would be impossible to control the applicant \u2019s behaviour during a probationary period if a conditional prison sentence were imposed .","In its judgment ORG pointed out that ORG had acted erroneously in that it had held the main hearing on DATE in the applicant \u2019s absence without duly notifying him . It considered , however , that the evidence available permitted a decision in the case without taking into account the evidence heard at the main hearing before ORG . ORG therefore held that these shortcomings did not affect the decision on the merits of the case . It appears that the applicant did not attend the hearing before the appellate court and that he was represented by a lawyer appointed ex officio .","On DATE , the judgment of ORG became enforceable . According to the Government , it was served on the applicant on DATE .","On DATE ORG ordered the applicant to reimburse the fees of the lawyer who had been appointed to represent him . On DATE ORG dismissed the applicant \u2019s complaint about that decision . On DATE a clerk of ORG delivered a decision rectifying the sum the applicant actually had to pay .","In the meantime , on DATE , the applicant had been arrested by the NORP police . He was placed in the NORP Slavkov prison where he started serving his prison sentence . On DATE he was transferred to the PERSON nad Oh\u0159\u00ed prison .","On DATE the applicant complained to the director of the PERSON nad ORG prison that he had some problems with his glasses and that the water had not been running for an hour .","In CARDINAL letters dated DATE , respectively , the applicant complained to ORG ( GPE soud ) in summary terms about the criminal proceedings leading to his conviction and the enforcement of the sentence .","On DATE the applicant sent a letter to several institutions and officials , including ORG , the Attorney General ( PERSON st\u00e1tn\u00ed z\u00e1stupce ) and the director of ORG prison , in which he complained that the NORP authorities had failed to react to his written submissions and that he had not been provided with adequate medical care in prison . He also made a request for a desk and a typewriter .","On DATE the applicant complained to the prison director that he was no longer allowed to prepare his application in the prison dining room . He explained that he could not concentrate on such work in the cell where he was detained together with CARDINAL or QUANTITY other people .","On DATE he complained in writing to the prison director that he was not allowed to use a typewriter or make copies of documents . He also alleged that he was not provided with adequate medical care .","In DATE the applicant was taken to a hospital in GPE for an examination of his mental health .","On DATE the Vice - President of ORG warned the applicant that his petitions to ORG did not satisfy the formal requirements for lodging a constitutional appeal . He informed the applicant that an appellant must be legally represented before ORG , must indicate his name , specify the subject of his constitutional appeal , sign the appeal and date it . He also informed the applicant about the DATE time - limit for lodging a constitutional appeal .","On DATE ORG ( PERSON spravedlnosti ) informed the applicant that his CARDINAL requests for the introduction of a complaint for a breach of law ( podn\u011bt k pod\u00e1n\u00ed st\u00ed\u017enosti pro poru\u0161en\u00ed z\u00e1kona ) , on DATE and CARDINAL DATE , were rejected as having no basis .","According to the Government , on DATE , after a discussion between the applicant and the prison director , the latter held that the applicant would be provided with necessary aid for his correspondence and , in particular , that his correspondence would be sent without delay and given to him immediately upon its arrival at the prison .","By letter of DATE , ORG ( \u010cesk\u00e1 advok\u00e1tn\u00ed komora ) acknowledged receipt of the applicant \u2019s letter of DATE which , however , they had found to be unclear . He was therefore invited to specify his claims . A list of NORP speaking lawyers was joined to the letter .","By letter of DATE the applicant urged the ORG inter alia to decide on his constitutional appeals .","Article CARDINAL provides that the ratified and promulgated international treaties on human rights and fundamental freedoms , by which GPE is bound , shall be applicable as directly binding regulations having priority over the law .","According to LAW , fundamental human rights and freedoms are guaranteed to everybody irrespective of sex , race , colour of skin , language , faith , religion , political or other conviction , ethnic or social origin , membership of a national or ethnic minority , property , birth , or other status .","According to LAW , personal liberty is guaranteed . Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law .","LAW and CARDINAL provides inter alia that everybody is entitled to protection of his \/ her human dignity or personal integrity , and against unauthorised interference with private or family life .","According to LAW , nobody may violate the confidentiality of correspondence or other papers and records , whether privately kept or sent by post or in another manner , except in cases and in a manner specified by law .","DATE guarantees inter alia to everybody the right to the protection of his \/her health .","Article CARDINAL provides that everybody can claim his \/ her rights in a prescribed manner before an independent and impartial tribunal or , in certain cases , before another organ .","According to LAW , everybody is entitled to a fair and public hearing within a reasonable time , in his \/ her presence , and to comment upon all the evidence submitted .","Section CARDINAL(CARDINAL)(a ) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty ( LAW ) by a legitimate decision taken in proceedings to which he \/ she was a party , and being a measure or interference by \u2018 a public authority\u2019 . According to paragraph CARDINAL , a constitutional appeal shall be submitted within DATE . If the law affords a remedy for the protection of rights , this period starts to run on DATE when the final effective decision becomes enforceable or , if no such remedy exists , on DATE on which the impugned events occurred .","According to section GPE ) , a constitutional appeal is inadmissible if the applicant failed to exhaust all the procedural remedies available in law for the protection of his \/ her rights .","Section CARDINAL(CARDINAL ) provides that the applicant must be represented by an attorney , a commercial lawyer or a notary to the extent provided for in the relevant special law .","Section CARDINAL(CARDINAL ) provides that a constitutional appeal shall be submitted in writing to ORG . The appeal shall include the following information : the person who is making the appeal , the matter to which it relates , and its object . The appeal must be signed and dated . Furthermore , it shall include a true description of the crucial facts , indicate the evidence which the applicant will introduce , and specify the claim . The appeal shall contain the other elements required by LAW . According to paragraph CARDINAL , the appeal shall be submitted in a sufficient number of copies so that ORG as well as each party to the appeal may have a copy .","According to section DATE , in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety , dismisses it in its entirety , or partially allows and partially dismisses it . If the court allows the constitutional appeal , it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated , and what act by a public authority perpetrated the violation . If it allows the constitutional appeal of a natural person , the court shall annul the contested decision of the public authority , or , if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision , the court shall order the authority to discontinue the violation and order it , to the extent possible , to restore the situation to that which existed prior to the violation .","According to section CARDINAL(CARDINAL)(c ) and ( d ) , a punishment becomes time - barred after the expiration of a period of DATE if it was a prison sentence exceeding DATE , and after DATE period in respect of other sanctions .","Section PERSON ) provides inter alia that the period of prescription begins on the date on which the judgment becomes enforceable . This period does not include any time when the sentenced person was abroad or was serving another prison sentence .","Code of Criminal Procedure ( Act no . CARDINAL\/CARDINAL , as amended )","Section CARDINAL ) allows a trial to be held in the absence of the accused if the court considers that the case can be decided and the purpose of the criminal proceedings achieved in the accused \u2019s absence , provided that the formal indictment was duly served , the accused was properly summoned to attend the trial and was heard as to the facts constituting the subject of the indictment by a competent authority , was officially informed of the charges ( section CARDINAL ) and of the possibility to study the criminal file and make any suggestions regarding the completion of the investigation ( section CARDINAL ) ) .","According to section CARDINAL(CARDINAL ) , an appeal shall be lodged with an appellate court within DATE of the accused receiving the judgment against which appeal is made .","According to section CARDINAL , all prisoners have the same rights in the same circumstances within the scope of this LAW .","Section CARDINAL(CARDINAL ) provides that a prisoner has the right to medical care in accordance with a special law on the subject , subject to the limitations associated with the aim of the punishment .","Section CARDINAL ) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce those rights and interests protected by law . Such complaints and requests must be made without delay .","According to section DATE , the medical expenses of an uninsured prisoner are to be met by the prison service .","According to section CARDINAL(CARDINAL ) , a prisoner serves his \/ her prison sentence on the basis of a legitimate and enforceable court decision and pursuant to an order for the enforcement of that sentence .","Section CARDINAL(CARDINAL ) provides that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered , on the NORP and world level , to be part of the process of gathering and examining information concerning violations of human rights .","Section CARDINAL(CARDINAL ) provides that everyone has the right to legal representation . Those who can not find legal representation may ask ORG to appoint an attorney .","According to section CARDINAL , ORG may decide that the remuneration of the lawyer \u2019s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his \/ her social and financial situation justifies such a decision ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4748","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":1999,"docname":"VERDAM v. THE NETHERLANDS","importance":3,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national , born in DATE and currently serving a prison sentence in the GPE .","He is represented before the ORG by PERSON , a lawyer practising in GPE .","On DATE the applicant was arrested on suspicion of having raped CARDINAL prostitutes ( \u201c Ms A \u201d , \u201c Ms B \u201d and \u201c Ms C \u201d ) . In a statement made to police after this arrest , a fourth prostitute ( \u201c Ms D \u201d ) reported that she had also been raped . The applicant \u2019s lawyer was notified by the police and , without having had the opportunity to discuss the matter with the applicant , attended PERSON making of this statement , at which occasion the lawyer was able to question PERSON , PERSON and Ms D subsequently recognised the applicant as the man who had raped them from a series of photographs ; in the case of Ms B and PERSON this identification took place in the presence of the applicant \u2019s lawyer .","A DNA - examination was carried out on sperm found in a swab taken from PERSON According to the results of the examination it could not be excluded that the sperm was the applicant \u2019s - the lowest possible degree of probability to be attached to such results .","The applicant was convicted of attempted rape of Ms A and of rape of PERSON , Ms C and Ms D by ORG ( ORG ) of GPE on DATE . He was sentenced to CARDINAL years\u2019 imprisonment .","The applicant lodged an appeal with ORG ( Gerechtshof ) of GPE . He requested that PERSON , PERSON and Ms D be heard as witnesses by ORG and the court granted this request . However , at the hearing on DATE none of these witnesses appeared . It transpired that , although properly summoned , PERSON and Ms D did not have a known place of residence or abode ( zonder bekende woon- of verblijfplaats ) . An address was known for Ms C but the summons had not been sent there . ORG adjourned the proceedings in order for PERSON , PERSON and Ms D to be summoned again .","At the hearing on DATE the witnesses again failed to appear , although all CARDINAL had been properly summoned . The proceedings were once more adjourned and the witnesses summoned again . This time , ORG also issued an order to have PERSON brought before it .","At the hearing on DATE none of the witnesses appeared . A police officer told ORG that none of the CARDINAL witnesses had been seen at the local community centre for prostitutes ( \u201c huiskamerproject \u201d ) since DATE . PERSON had not been seen near FAC since DATE . The police had let other prostitutes in that area know that they were looking for PERSON address was known for her but when police went there on the morning of the hearing she was not there . The officer had furthermore been told that PERSON had gone to GPE where she was said to be staying at a drug rehabilitation centre but her address in GPE was not known . PERSON was said not to want to have anything to do with the case anymore . PERSON , finally , could not be found and her address was not known .","ORG decided to dispense with a further summoning of Ms B , PERSON and Ms D as in the circumstances it considered it unlikely that they would appear before it within an acceptable time .","Before ORG the applicant acknowledged that he had had intercourse with PERSON , saying that she had screamed and that he had not paid her , but he denied having raped her . He further denied the charges against him in relation to PERSON , PERSON and Ms D , submitting that he had been elsewhere when the alleged offences had supposedly been committed . Counsel for the applicant argued that in violation of LAW ( d ) of the Convention the defence had not had sufficient opportunity to test the statements of PERSON , PERSON and ORG further complained of the manner in which the collection of photographs from which PERSON , PERSON and Ms D had recognised the applicant had been compiled . Regardless of the fact that the witnesses had described the perpetrator as having long or shoulder - length hair , CARDINAL photographs in the collection shown to them had featured a person with such a hair style . Finally , counsel requested that the proceedings be adjourned so that a second DNA - examination could be carried out .","By judgment of CARDINAL DATE ORG convicted the applicant of attempted rape of ORG and of rape of PERSON , PERSON and Ms D , and sentenced him to CARDINAL years\u2019 imprisonment . ORG found that the use in evidence of the statements made to the police by PERSON , PERSON and Ms D without the defence having been able to examine these witnesses was not contrary to LAW . In this respect it took into account that considerable effort had been made to procure the appearance of the witnesses before ORG , that a further summoning of those witnesses appeared to serve no useful purpose , that the statements made by the witnesses were supported by other evidence , and that , as regards PERSON , the applicant \u2019s lawyer had been present both when she had been questioned and when she had identified the applicant from a photograph .","In respect of the series of photographs shown to PERSON , PERSON and Ms D , ORG referred to the testimony given by an expert witness according to whom a computerised system had been used to select photographs of persons of a similar appearance . ORG also examined the photographs itself . It found that the fact that CARDINAL of the CARDINAL photographs featured men with long hair could not detract from its opinion that the collection had been compiled with the requisite care , since a hair style was only of relative importance in this respect . ORG further noted that each witness had , separately and with certainty , recognised the applicant .","ORG further noted that the applicant had not disputed the findings of the DNA - examination , but that he had rather expressed the hope that a second such examination might exonerate him completely . However , as ORG did not use the findings of this examination in evidence against him , it considered that to refuse a second examination would not be prejudicial to the applicant \u2019s interests .","ORG based its conviction of the applicant of the rape of PERSON , PERSON and Ms D on the following means of evidence , in respect of the particular charge to which each of them related only :","- the applicant \u2019s statement before ORG that he wore tattoos , that he used to drive a blue - grey ORG which was registered in the name of a Mr H , and that he had subsequently obtained a ORG van ;","- Ms B \u2019s statement to the police in which she related , inter alia , that the perpetrator had been driving a big , metallic - blue coloured NORP car , and in which she described him as having long blond hair , tattoos on both arms and wearing a number of chains ;","- Ms B \u2019s recognition of the applicant as her assailant from CARDINAL photographs shown to her , at which occasion she stated , \u201c That is PERSON the rapist . He told me himself that he was called PERSON \u201d ;","- a proc\u00e8s verbal drawn up by a police officer to the effect that the applicant \u2019s girlfriend had told this police officer that the applicant was generally known as \u2018 GPE ;","- Ms C \u2019s statement to the police in which she related , inter alia , that the perpetrator had been driving a big , silver - blue coloured NORP - style car and that he had pulled a chain around her neck . She further stated that the man had long blond hair worn in a pony tail and a tattoo on his upper arm ;","- a proc\u00e8s verbal drawn up by a police officer to the effect that the registration number of the car indicated by PERSON as the car driven by her assailant had proved incorrect ;","- a proc\u00e8s verbal drawn up by a police officer to the effect that Mr H used to have a ORG registered in his name with a registration number that differed CARDINAL digit from the number indicated by PERSON ;","- Ms C \u2019s recognition of the applicant as her assailant from a number of photographs shown to her ;","- Ms C \u2019s confirmation that the chain featured on a photograph shown to her was of the kind that she had mentioned in her statement ;","- a proc\u00e8s verbal drawn up by CARDINAL police officers to the effect that a silver - coloured chain had been found in the ORG van which they had investigated in relation to the suspicion that a number of rapes had taken place inside the vehicle ;","- Ms D \u2019s statement to the police in which she related , inter alia , that the perpetrator had been driving a large silver - grey car and that he had long hair ;","- Ms D \u2019s recognition of the applicant as her assailant from CARDINAL photographs shown to her ;","- a proc\u00e8s verbal drawn up by a police officer to the effect that the owner of a breaker \u2019s yard had recognised the applicant from a photograph shown to him as the man whom he had given a purple - blue ORG in exchange for a metallic - grey ORG .","The applicant filed an appeal in cassation with ORG ( PERSON ) , raising the same arguments as he had before ORG .","In a judgment of DATE , ORG found that LAW did not prevent the use in evidence of PERSON statement to the police despite the fact that counsel had not been able to question her as a witness . In this respect ORG did not find unreasonable the conclusion that further attempts to make PERSON appear before ORG would serve no useful purpose . ORG noted , moreover , that counsel had taken no initiative to examine the police officers who had taken PERSON statement . It also considered that PERSON statement was corroborated by other means of evidence used in respect of this charge , in particular concerning the physical appearance of the applicant and the car he used .","As regards the use in evidence of Ms D \u2019s statement , ORG observed that counsel had attended PERSON interview with the police and that the applicant had thus had the opportunity to have this witness questioned on his behalf .","ORG found no issue with the manner in which ORG had rejected the complaint concerning the compilation of the series of photographs from which the applicant had been recognised .","ORG quashed the judgment of ORG in so far as it concerned the charge of rape of PERSON and the determination of the sentence . ORG held that a second DNA - examination could not be refused for the sole reason that the examination already carried out had been complete and that the results were not used in evidence . ORG referred this part of the case to ORG , which court was also to impose a sentence relating to the other offences of which the applicant had been found guilty .","On DATE ORG The GPE convicted the applicant of the rape of PERSON It sentenced the applicant to six years\u2019 imprisonment with deduction of the time spent in pre - trial detention . In these proceedings the applicant again complained of his not having been able to question PERSON The applicant filed an appeal in cassation against the judgment of ORG , which proceedings are currently still pending before ORG .",""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79728","languageisocode":"ENG","respondent":"AZE","branch":"ADMISSIBILITY","date":2007,"docname":"IVANOV v. AZERBAIJAN","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr C. PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant got married . He and his wife lived together until DATE .","After the applicant had moved out of his wife \u2019s house , he had an intention to commence divorce proceedings . However , approximately at this time , he found out that his wife was pregnant . Believing that he was not the father of the yet unborn child , in DATE he requested ORG not to list him as the biological father in the birth certificate upon the child \u2019s birth .","In DATE the applicant \u2019s wife gave birth to a daughter . Despite the applicant \u2019s earlier request , based on a statutory presumption of paternity , ORG issued a birth certificate mentioning the applicant as the child \u2019s father . As the applicant and his wife were separated and no longer lived together as a family , on DATE ORG ordered the applicant to pay child support to his wife .","The applicant then instituted civil proceedings , disputing his paternity and asking the court to strike out his name as the child \u2019s father from the relevant civil status documents . He claimed that , on TIME after his wedding , he discovered that his wife was not a virgin as he expected . He was shocked by this and refused to continue the sexual intercourse with her . He further maintained that thereafter he had never had any sexual intercourse with his wife and that the child had been conceived in an adulterous relation with another person .","After a preliminary hearing , on DATE the Ali - Bayramli District Court ordered a biological expert examination to determine the paternity . On DATE , an expert of ORG issued an opinion on the applicant \u2019s paternity . The expert performed an ORG blood group test by comparing the applicant \u2019s , the child \u2019s and the mother \u2019s blood types and , based on its results , concluded that the applicant \u201c could be the child \u2019s father \u201d . The expert noted that a DNA test would yield a more precise conclusion , but the expert did not possess adequate medical inventory to perform such a test .","Relying on the results of the ORG blood group test , the fact that the applicant and his wife lived together at the time of the child \u2019s conception , as well as the witness testimony concerning the relations between the applicant and his wife , on DATE the FAC dismissed the applicant \u2019s claim .","The applicant filed an appeal , arguing that ORG judgment was arbitrary , because the expert opinion used by the court did not provide a definite conclusion and because the results of the ORG test could not be considered as a reliable source for identifying the child \u2019s biological father . He further argued that only the DNA test could provide a conclusive answer to the question of paternity .","On DATE ORG upheld the first instance court \u2019s judgment , holding that the applicant failed to substantiate his arguments or present any new evidence proving that he was not the child \u2019s father . In its judgment , the court was silent about the applicant \u2019s request for a DNA test . Upon the applicant \u2019s appeal in cassation , on DATE ORG upheld the lower courts\u2019 judgments dismissing the applicant \u2019s claim .","In DATE the applicant filed an additional cassation complaint with the President of ORG , requesting that the proceedings be reopened . On DATE the President rejected this request .","However , in DATE the proceedings were reopened and the case was referred to the Plenum of the ORG based on an application by the President of ORG . On DATE the ORG found that ORG breached the procedural requirements by ignoring the applicant \u2019s request to order a DNA test . It further noted that such a test would constitute the \u201c principal type of evidence \u201d in this case . The ORG quashed the decision of ORG of DATE and the related judgment of ORG of CARDINAL DATE and remitted the case to ORG .","On DATE ORG instructed ORG and Pathologic Anatomy Department of ORG to conduct a DNA test of the applicant , his former wife and her child . Despite having been notified about the time and place of the DNA testing , the applicant failed to appear for the test without any good reason . According to the Government , the applicant received several such notifications .","Furthermore , although they had been informed about the time and place of the appeal hearing , neither the applicant nor his former wife appeared for the hearing . In such circumstances , on DATE ORG noted that it had been impossible to obtain DNA evidence due to the applicant \u2019s failure to cooperate . It therefore found that the parties ( and in particular , the applicant ) were not interested in obtaining new evidence that would enable the court to reach a different conclusion . For these reasons , ORG again upheld the Ali - Bayramli District Court \u2019s original judgment of DATE .","No cassation appeal was filed against ORG judgment of DATE within the statutory DATE period for filing cassation appeals .","\u201c [ T]he ORG shall be the highest judicial authority with regard to civil ... , criminal , administrative and other disputes falling within the jurisdiction of the general and specialised courts .","ORG [ is ] a court of cassation instance ... \u201d","\u201c The Plenum of the Supreme Court shall be composed of the President , Vice Presidents and judges of ORG , the President of ORG , the President of ORG and the President of ORG of GPE . ...","The Plenum of ORG ... shall , in the manner established by law , review cases under the procedure of additional cassation ... , on submission of the President of ORG , or pursuant to a protest by ORG or appeal by the defendant ... \u201d","\u201c The President of ORG ... shall , in cases and under the procedure provided by law , submit cassation - instance decisions for the review of the Plenum of ORG ... \u201d","\u201c CARDINAL . The decision [ of the cassation - instance court ] shall enter into force from the moment of its delivery . \u201d","\u201c Decisions of ORG ... may be reviewed by the ORG of ORG under the procedure of additional cassation upon a submission , appeal or protest . \u201d","\u201c A submission concerning a decision of ORG ... may be made by the President of ORG on the basis of an application by persons non - parties to the case whose interests are affected by the judicial acts . An appeal may be filed by a party to the case represented by an advocate . [ A protest may be filed by ORG in certain specified circumstances . ] \u201d","\u201c CARDINAL . The ORG considers cases exclusively on the points of law . \u201d","Article CARDINAL lists the grounds which merit the review of ORG cassation - instance decision by the ORG of ORG . These grounds are present if , inter alia , ORG decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision , or was based on a legal norm declared as unconstitutional by ORG , or if ORG ruling infringed the rights and obligations of persons who were not a party to the case .","\u201c CARDINAL . If appropriate grounds exist , the President [ of ORG ] shall refer the submission , appeal or protest , together with the case file , to the ORG of ORG .","NORP The submission , appeal or protest shall be filed within DATE after the date of delivery of the [ relevant ] decision of ORG . ... \u201d","\u201c CARDINAL . Upon review of a case under the procedure of additional cassation , the Plenum of ORG has the competence to : ...","uphold the decision of the cassation - instance court and dismiss the submission , appeal or protest ;","DATE . make amendments to the decision of the cassation - instance court ;","NORP quash , in full or in part , the decision of the cassation - instance court , as well as the related decision of the appellate court , and remit the case for re - examination by the appellate court ; ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60516","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2002,"docname":"CASE OF FILIZ AND KALKAN v. TURKEY","importance":2,"conclusion":"Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Georg Ress","text":["On DATE police officers from the anti - terrorist branch of ORG arrested the applicants on suspicion of membership of an illegal organisation , the PRK - R\u0131zgari .","On DATE the ORG ordered the applicants ' detention on remand .","On DATE the Chief Public Prosecutor filed an indictment with ORG charging the applicants with membership of the PRK - R\u0131zgari and undertaking actions against the indivisible integrity of the state . The charges were brought under LAW and CARDINAL of LAW .","NORP In a judgment dated DATE ORG acquitted Ms GPE of the charges , holding that there was insufficient evidence to convict her . The court found Mr PERSON guilty of the offences under LAW and DATE and sentenced him to capital punishment .","On DATE Mr Kalkan lodged an appeal with ORG . The applicant did not submit any information concerning the outcome of the criminal proceedings against him .","Article CARDINAL of the LAW provides :","\u201c Everyone has the right to liberty and security of person .","No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :","...","The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE ... These time - limits may be extended during a state of emergency ...","...","A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .","Compensation must be paid by the ORG for damage sustained by persons who have been victims of treatment contrary to the above provisions , as the law shall provide . \u201d","Article CARDINAL of the Criminal Code provides :","\u201c Any person who , with the intention of committing the offences defined in Articles ... , forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not DATE imprisonment .","The other members of the gang or organisation shall be sentenced to not CARDINAL and not DATE imprisonment . \u201d","Article CARDINAL of the Criminal Code provides :","\u201c It shall be an offence , punishable by the death penalty , to commit any act aimed at subjecting the ORG or any part of the ORG to domination by a foreign ORG , diminishing the ORG 's independence or removing part of the national territory from the ORG 's control . \u201d","Under Articles CARDINAL and CARDINAL of the Prevention of Terrorism Act ( Law no . ORG of DATE ) , the offences defined in Articles CARDINAL and CARDINAL of LAW are classified as \u201c terrorist \u201d acts . Pursuant to LAW no . ORG , penalties laid down in LAW as punishment for the offences defined in LAW and CARDINAL of the Act are increased by CARDINAL .","Under LAW no . CARDINAL on procedure in the state security courts , only these courts can try cases involving the offences defined in LAW and CARDINAL of LAW .","At the material time , LAW no . CARDINAL of DATE , amending the legislation on criminal procedure , provided that , with regard to offences within the jurisdiction of state security courts , any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23674","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2004,"docname":"KUSTILA and OKSIO v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The first applicant is Mr PERSON , a NORP national , who was born in DATE and was serving a prison sentence at the time of the application . The second applicant is Mr PERSON , a NORP national who was born in DATE and was serving a prison sentence at the time of the application . They are represented before the ORG by Mr Jaakko Tuutti , a lawyer practising in GPE , GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","The first applicant had been detained pending a criminal trial concerning DATE amongst others \u2013 CARDINAL serious drug offences . On DATE , at the end of the hearing , ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) of ORG informed the parties that it had decided to reserve the judgment until DATE . The public prosecutor demanded a sentence of DATE imprisonment and that the first applicant should remain in detention pending the delivery of the judgment . ORG ordered that the first applicant be detained pending the delivery of the judgment , basing the detention on Sections CARDINAL and FAC of LAW ( pakkokeinolaki , tv\u00e5ngsmedelslag ; PERSON ) . It held , inter alia , as follows :","\u201c Because ORG has in its decision after the end of the principal hearing notified the date of the reserved judgment , the grounds for PERSON \u2019s [ the first applicant \u2019s ] detention are based on the principles supporting section CARDINAL of LAW .","PERSON , who has been detained throughout from CARDINAL DATE , has been charged with offences for which , if proven guilty as charged , he will clearly , according to normal case law , be sentenced to imprisonment for DATE .","Without prejudice to the length of the final imprisonment sentence and taking into consideration that the reserved judgment will be given in DATE time , the arguments presented in favour of PERSON do not disclose that his detention is excessive . \u201d","On DATE ( DATE ) the first applicant applied to ORG ( hovioikeus , hovr\u00e4tten ) of GPE , claiming that his detention was unlawful and demanding ORG decision to be quashed as well as his immediate release . He claimed that ORG could not have based its decision on LAW , because he had not yet been sentenced as required by that provision . He also maintained that NORP legislation did not contain any basis for detention of a defendant in a case where the hearing had been closed and the judgment reserved and invoked LAW .","On DATE ORG of GPE quashed ORG decision to detain the first applicant and ordered his immediate release . ORG reasoned its decision , inter alia , as follows :","\u201c Because PERSON had not been sentenced at the end of the principal hearing on DATE , he could not have been ordered to remain detained pursuant to LAW . \u201d","On DATE ORG sentenced the first applicant to CARDINAL years\u2019 imprisonment . It also ordered the arrest of the first applicant , who had gone missing after his release on DATE .","On DATE the first applicant meanwhile applied to ORG of GPE , claiming compensation under LAW by ORG . ORG rejected the applicant \u2019s claims on DATE , referring to section CARDINAL of that Act . It held , inter alia , as follows :","\u201c It is undisputed in the case that PERSON was detained during the time mentioned in his application for summons . It is also undisputed that ORG of GPE released PERSON because it was not possible to keep PERSON detained on the grounds that the public prosecutor put forward and on which ORG had made the decision , i.e. pursuant to LAW .","Therefore , the detention was not based on the grounds on which the public prosecutor and ORG justified the detention .","...","Taking into account the seriousness of the offences that underlie the detention of PERSON , his guilt as stated in the judgment and the length of the imposed penalty , it would be excessive to oblige the ORG to pay PERSON compensation for the deprivation of his liberty . Compensation would be excessive also because he was deprived of his liberty for DATE and because this time has been subtracted from the sentenced imprisonment according to LAW . Because of PERSON \u2019s guilt the deprivation period can not be deemed to cause him such mental suffering as would be the case if an innocent person had been detained . \u201d","ORG of GPE upheld ORG judgment on DATE . ORG reasoned its judgment , inter alia , as follows :","\u201c As ORG has maintained , there were no legal grounds for PERSON \u2019s detention during DATE . However , on DATE PERSON was sentenced to CARDINAL years\u2019 imprisonment for the crimes that initially led to his detention , and ordered to be taken into custody . PERSON has subsequently been avoiding the implementation of the sentence and a warrant for his arrest has been issued . Therefore it would be excessive to oblige the ORG to pay him compensation for his short term detention . Further , because it can not be maintained that PERSON \u2019s liberty has been restricted in an arbitrary fashion or without justification , he is not entitled to compensation on the basis of ORG either . \u201d","In a letter dated DATE the first applicant asked the police to investigate whether the judge and laymen of ORG had committed a crime when they ordered his detention .","On DATE the police sent a report to the Chancellor of ORG and informed him that a criminal investigation would not commence before the Chancellor of ORG had examined the matter .","On DATE the Deputy Chancellor of ORG noted in his decision that there was no directly applicable statute in the law concerning detention of an accused by a court when reserving a judgment to a later date . He concluded however that both ORG and ORG had erred as the defendant could , and should have , been detained , under LAW on Coercive Means of Criminal Investigation . According to the Deputy Chancellor of ORG , that interpretation of law had been accepted by ORG in similar cases . He did not find any grounds for prosecution in the case .","The second applicant was serving a term of imprisonment in an open prison when on DATE he was taken in police custody to a police station as suspected of another crime . Some time later he was transferred to FAC , from which he was transferred to a prison in GPE on DATE . On DATE a public prosecutor decided not to press further charges against the second applicant .","On DATE the second applicant filed a suit against the ORG under LAW by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons . He demanded , inter alia , compensation for non - pecuniary damages caused by his detention from DATE to CARDINAL DATE . On DATE ORG rejected the second applicant \u2019s claims . It reasoned its decision , inter alia , as follows :","\u201c Even though [ the second applicant \u2019s ] liberty and possibilities to act were de facto restricted to a greater degree due to his transferral to the police jail compared to the conditions in an open prison establishment , [ the second applicant ] was also nevertheless a prisoner in the open prison .","As [ the second applicant ] was already imprisoned and as transferral to a different kind of prison does not require compensation pursuant to LAW by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons , and as [ the second applicant ] can not be considered as equivalent to a detained or convicted innocent person or to a person subject to an injunction order , ORG holds that the ORG is not obliged to pay [ the second applicant ] compensation for any possible non - pecuniary damage caused by the transferral to a police jail . \u201d","The second applicant complained to ORG which , on DATE , upheld ORG judgment . ORG refused the second applicant leave to appeal on DATE .","Section CARDINAL of LAW on Coercive Means of Criminal Investigation ( CARDINAL\/CARDINAL ) , as in force at the time of the events , provided :","\u201c When the court cancels or defers the principal hearing in a case where the defendant has been detained , the court has to examine and assess whether there are reasons to keep the defendant detained . \u201d","Section CARDINAL of LAW on Coercive Means of Criminal Investigation was amended on DATE ( CARDINAL ) . The new section entered into force on DATE and it provides :","\u201c When the court cancels or defers the principal hearing or orders a new principal hearing in a case where the defendant has been detained , the court has to examine and assess whether there are reasons to keep the defendant detained . However , the question of detention does not have to be re - examined or reassessed during the time when the principal hearing has been deferred due to a mental examination of CARDINAL of the defendants in the case . The court must also rule on the question of detaining the defendant , if the court does not deliver its judgment directly after the principal hearing . \u201d","Section CARDINAL of LAW ( CARDINAL\/CARDINAL ) states :","\u201c The court may detain a person convicted and sentenced to imprisonment , or order the continuation such a person \u2019s detention , if :","( CARDINAL ) the defendant has been sentenced to DATE imprisonment . \u201d","Section CARDINAL of LAW ( CARDINAL ) provides :","\u201c Nobody may be detained or ordered to continue to be detained if the detention would be excessive due to the nature of the case , the suspect \u2019s or sentenced person \u2019s age or due to other personal circumstances of the person in question . \u201d","Section CARDINAL of the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons ( CARDINAL\/CARDINAL ) provides :","\u201c A person who has been arrested or detained as a suspect for a crime has a right to compensation from the ORG , if :","( CARDINAL ) a criminal investigation has ended without a criminal charge being brought ;","( CARDINAL ) a criminal charge is withdrawn or dismissed ;","( CARDINAL ) he or she has been found guilty of an offence which did not justify arrest or detention , or ;","( CARDINAL ) there was no legal basis for the arrest or detention .","There is no right to compensation if the deprivation of liberty has not exceeded TIME . \u201d","Section CARDINAL of the above - mentioned LAW ( CARDINAL\/CARDINAL ) states :"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109909","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2012,"docname":"CASE OF LOLOVA-KARADZHOVA v. BULGARIA","importance":3,"conclusion":"Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law;Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","In DATE a real estate agent brought a private prosecution against the applicant for insult and defamation punishable by a fine and public reprimand . According to the complaint , in a newspaper announcement the applicant , describing herself as \u201c the deceived citizen \u201d , warned the public that the real estate agent would buy their real estate at very low prices and then would resell it for much larger amounts , making a very large profit for herself .","ORG postponed hearings scheduled for DATE and DATE because the applicant had submitted medical certificates and had expressed the wish to participate in the proceedings in person .","At hearings conducted on DATE and DATE the applicant was not present but was represented by counsel .","At a hearing on DATE neither the applicant nor her lawyer appeared . The applicant had submitted a medical certificate and had requested postponement . ORG noted that the applicant \u2019s presence was not mandatory , but postponed the hearing as her lawyer was also absent . It imposed a fine of MONEY ( ORG ) on the applicant \u2019s lawyer . The latter appealed to ORG , arguing that she had also been ill , and submitted a medical certificate . On DATE ORG , applying the procedure of LAW , revoked its own decision , stating that the applicant \u2019s lawyer had given valid reasons for her absence .","At a hearing on DATE the applicant appeared , but stated that she would make submissions at the final pleading stage .","The applicant requested postponement of the hearings scheduled for DATE , DATE , CARDINAL May and DATE , stating that she wanted to address the court but was ill , as was documented by medical certificates she had submitted . ORG granted her requests .","On an unspecified date in DATE the applicant submitted to ORG another medical certificate prescribing her home treatment for hypertension from DATE , and requested postponement .","At a hearing on DATE , held in the applicant \u2019s absence but in the presence of her lawyer , ORG noted the applicant \u2019s statement that she wanted to make submissions at the final stage of the pleadings and found that her hypertension was not an obstacle in this respect . It further noted that the applicant had submitted medical certificates on a number of occasions , thus causing delays in the proceedings . Relying on the LAW , ORG observed that it was necessary to complete the proceedings within a reasonable time and held that the applicant should therefore be brought before it for the next hearing with the assistance of the police . It did not specify any legal ground for this order . It scheduled the next hearing for DATE at TIME Since the applicant \u2019s lawyer was present at the hearing , the applicant was considered duly informed of the order .","Around TIME on DATE the applicant was detained by the police and taken to FAC , where she remained until TIME . The applicant contends that the conditions there were humiliating and that she had to use the same toilet as male detainees .","In TIME of DATE the applicant was escorted by train and car from GPE to GPE ( QUANTITY km ) , attended the hearing at TIME and made submissions , after which she was released . In a judgment of the same date ORG acquitted her , finding that her newspaper announcement had been neither insulting nor defamatory . The plaintiff requested judicial review of the judgment but on DATE her appeal was rejected for procedural flaws .","Pursuant to LAW ( \u201c the DATE CCP \u201d ) , the attendance of the accused person at the trial is mandatory where the charges concern offences punishable by PERCENT DATE imprisonment . In all other cases , the court may order the accused person to appear if this is necessary for establishing the truth ( LAW .","An accused person may be taken into custody in order to secure his attendance for questioning if he has failed to appear without valid reasons , provided that his attendance is mandatory or is deemed necessary by the competent authority ( Article CARDINAL(CARDINAL ) of DATE CCP ) . The accused may be taken into custody without prior notice if he has absconded or has no permanent address ( Article PERSON ) of the DATE CCP ) .","Orders under Articles CARDINAL(CARDINAL ) and CARDINAL of the CARDINAL CCP are not amenable to appeal before a higher court .","Pursuant to LAW , in force until DATE , the court could revoke its own procedural order if judicial review had been requested . This provision was superseded by LAW , in force since DATE , which repeats its text almost verbatim .","The DATE State and ORG ( the \u201c ORG \u201d ) provides for compensation in certain cases of deprivation of liberty ordered by a court or by investigating or prosecuting authorities , where the relevant decision or order has been set aside \u201c for lack of lawful grounds \u201d under domestic law . Deprivation of liberty aiming at securing the accused \u2019s attendance at a hearing is not among those cases .","NORP The relevant domestic law and practice concerning State liability for damage in connection with conditions of detention have been summarised in the ORG \u2019s judgment in the case of PERSON v. GPE ( no . CARDINAL , \u00a7 DATE , DATE ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1","5-5"],"violated_bulletpoints":["5-1-b"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59061","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":2000,"docname":"CASE OF G.B. v. SWITZERLAND","importance":3,"conclusion":"Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Georg Ress","text":["The applicant , a NORP citizen born in DATE , resides in GPE , GPE .","On DATE , the applicant was arrested and remanded in custody on urgent suspicion ( dringender Verdacht ) of having participated together with the \u201c PERSON \u201d terrorist group in an attack on the radio station ORG in GPE and in attacks on diplomatic staff in GPE and GPE . The warrant of arrest also referred to a danger of collusion and absconding .","On DATE the investigating judge of the GPE of GPE confirmed the detention on remand of the applicant . The decision noted that the suspicion was based on files of the NORP ORG security authorities and the NORP intelligence service . There was an urgent suspicion that , as a supporter of the \u201c PERSON \u201d group , he had participated in the various events . Additional investigations would be necessary since the applicant refused to comment on his contacts with the group . According to the decision , detention was further required in order to avoid collusion with other members of the group . There was also a danger of absconding in view of the severity of the possible prison sentence .","NORP The investigations were then conducted by ORG ( Bundesanwaltschaft ) .","On DATE , DATE , the applicant filed a request with the Federal Attorney for release from detention . He contested the urgent suspicion that he had committed the offences at issue and that there was a danger of collusion and absconding . He also requested consultation of the case - file . The request was received by the Federal Attorney on DATE , CARDINAL DATE .","On DATE , DATE , the Federal Attorney dismissed the applicant \u2019s request . The decision , referring to various investigations still to be undertaken as well as a danger of collusion and absconding , was served on the applicant on DATE , DATE .","On DATE , the applicant filed an appeal ( Beschwerde ) against the decision of DATE with ORG ( Anklagekammer ) of ORG , invoking LAW , DATE and LAW and requesting release from detention . He complained that DATE had lapsed without the lawfulness of his detention having been examined by a court within the meaning of LAW , and that he had not been able to consult the case file . The appeal was received by ORG on DATE .","On DATE the President of ORG transmitted a copy of the appeal to the Federal Attorney who was requested to submit her observations by DATE . The Federal Attorney was further asked to send a copy of her observations to the applicant who , in turn , was requested to submit any observations by DATE .","On DATE , ORG filed her observations . They were served on the applicant on DATE .","The applicant filed his observations in reply on DATE . These observations were received by ORG on DATE .","On DATE , ORG dismissed the applicant \u2019s request , the decision being served on the applicant on DATE .","In respect of the applicant \u2019s complaint that he could not consult the case - file , ORG found that the applicant had had knowledge of the essential documents . The decision further confirmed that there was sufficient suspicion that the applicant had committed the offences at issue and that there was also a danger of absconding and of collusion .","On DATE ORG decided to release the applicant from detention on remand . The decision stated , inter alia , that the original suspicions directed against the applicant had not been confirmed ( erh\u00e4rtet ) .","According to LAW ( Bundesstrafrechtspflegegesetz ) , a person detained on remand may at any time file a request for release from detention . If the investigating judge or the Federal Attorney refuse the request , an appeal may be filed with ORG . According to Sections CARDINAL bis and CARDINAL of the LAW , the time - limit for filing the appeal is DATE ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108506","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2012,"docname":"CASE OF IGLIN v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Andr\u00e9 Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy","text":["The applicant was born in DATE and is currently serving a life sentence in PERSON .","On DATE the applicant was convicted of robbery and other crimes , sentenced to CARDINAL years\u2019 imprisonment and taken to the ORG correctional colony to serve his sentence .","While the applicant was serving his sentence , new criminal proceedings were instituted in which charges of criminal association membership , murder and other violent crimes were advanced against him . On an unspecified date N. ORG was appointed as the applicant \u2019s legal - aid lawyer . Subsequently A. GPE , another legal - aid lawyer , replaced him .","On an unspecified date the applicant , along with several other individuals , was committed for trial to ORG ( hereafter \u201c the Regional Court \u201d ) , acting as a first - instance court . The charges against him included belonging to a criminal association , as a member of which he had taken part in CARDINAL murders with a view to personal gain ; several robberies ; unlawful handling of arms ; and unlawful taking of a vehicle .","During the trial the applicant confessed to having participated in the robberies and the other crimes attributed to him . However , he argued that his personal role in the murders had been negligible , and that he had not had any intention of profiting personally from CARDINAL of the CARDINAL murders .","The applicant also complained to the court that he had been tortured by the investigative authorities during the pre - trial investigation . The court ordered ORG to conduct an inquiry into the applicant \u2019s complaint , which found that there was no case of illtreatment to answer .","On DATE the applicant was convicted as charged and sentenced to life imprisonment .","The applicant and PERSON his legal - aid lawyer ) drafted separate cassation appeals . The applicant \u2019s lawyer challenged the assessment of the facts and application of the law in respect of several points and requested a milder sentence .","The applicant , for his own part , complained , primarily , about the severity of his sentence , of ill - treatment by the investigative authorities , and of the court \u2019s failure to question PERSON , another alleged criminal association member , who had been on a wanted list . In his appeal , the applicant also stated that he wanted to further substantiate his arguments once he had had a chance to study the case file .","On DATE and CARDINAL and DATE the applicant was brought into ORG offices to study the case file in order to prepare his cassation appeal . He signed affidavits asserting that he had read the entire case file .","On DATE ORG of GPE adjourned consideration of the case until DATE in order to ensure the applicant \u2019s and his co - defendants\u2019 presence at the proceedings .","On DATE the applicant complained to ORG that he had not been properly familiarised with the case - file materials . He mentioned , in particular , that he had only been brought to the court \u2019s records office to study the file on CARDINAL occasions . He further noted that he had remained in handcuffs at all times and that this had not only been physically painful , but also detrimental to his ability to take notes . Lastly , the applicant noted that he had been coerced into signing the affidavits that stated that he had properly studied the file . The applicant asked ORG to ensure that he be provided with an opportunity to study the case file in his lawyer \u2019s presence .","On DATE the applicant asked ORG to adjourn the case , regard being had to the failure of his legal - aid lawyer to appear . He further asked ORG to oblige PERSON to perform her professional duties , to admit PERSON , his mother , as his lay defence representative , and to provide him with an opportunity to familiarise himself with the case file in order to prepare his defence .","On DATE ORG adjourned the hearing . It noted that the applicant \u2019s request for additional familiarisation with the case file was ill - founded , as he had signed affidavits stating that he had properly studied it . On the other hand , ORG found the applicant \u2019s concern about his lawyer \u2019s absence substantiated and ruled as follows :","\u201c to give [ the applicant ] the opportunity to appoint a lawyer or a defence representative to participate in the cassation proceedings in order to represent his interests .","The administration of the GPE should assist [ the applicant ] in establishing a connection with his defence representative or persons who can appoint a defence representative \u201d .","On DATE the applicant further complained to ORG that he had not been familiarised with the appeals brought by other parties to the proceedings .","On DATE ORG held a hearing in the applicant \u2019s case in the absence of his lawyer . At the beginning of the hearing , the applicant requested that ORG act on his previous requests . The prosecutor opined that the applicant had had sufficient opportunity to familiarise himself with the case file . The court rejected the applicant \u2019s requests as unfounded and upheld the judgment of the firstinstance court .","On DATE ORG asked the applicant to provide certified copies of his appeals and his procedural requests addressed to the Regional and ORG .","On DATE the applicant asked ORG records office to provide him with the documents at issue in connection with the ORG \u2019s request .","On DATE ORG rejected this request , referring to the lack of any obligation under national law to make copies of case file documents .","On DATE GPE , the applicant \u2019s mother , who was also acting as his representative in the Convention proceedings at the material time , lodged a new request with ORG on his behalf . In particular , referring to LAW , she requested that ORG either mail certified copies of the documents requested by ORG to her home address or inform her in writing where they could be delivered to her .","On DATE ORG returned her request without providing the copies sought , noting that \u201c LAW in force does not oblige the court to prepare copies of materials from a criminal case file \u201d .","From DATE until DATE , with short interruptions , the applicant was detained in GPE pre - trial detention facility no . CARDINAL ( \u201c GPE no . CARDINAL \u201d ) .","According to the applicant , he had been detained with another individual in a cell measuring CARDINAL by QUANTITY for DATE . The applicant \u2019s bunk , which had measured QUANTITY by QUANTITY , had had raised bars at its ends . Given that the applicant was QUANTITY tall , he had been unable to stretch out fully and get adequate sleep . The cell had been located in the basement , scarcely letting in daylight or fresh air , while the electric light had been dim and there had not been any artificial ventilation . The windows had had grates on them , which had further blocked natural light from coming in through the window . Moreover , they had been blocked by the upper bunk of the bed . The air had been damp and ventilation had been insufficient . The toilet had not been separated from DATE . It had smelled of excrement and had frequently been flooded . The applicant had made a cover for the toilet ( a \u201c grusha \u201d ) to prevent unpleasant smells . However , it had been confiscated by the prison authorities . They had likewise routinely confiscated a number of his other belongings and appliances for no apparent reason , including food , a TV antenna and a string , without which it had not been possible to open the window . Consequently , the applicant \u2019s access to information from the outside world had been severely limited and he had been unable to open the window to disperse the smell from the toilet . The food had been meagre and had mostly consisted of wheat cereal and bread . The detainees had only been able to wash themselves , cut their nails and shave once DATE in a special bathing facility . All of the detainees had shared the same pair of scissors . They had remained handcuffed by the hand to the wall while they had been cutting their nails and shaving , which had felt degrading .","On DATE the applicant \u2019s cellmate had hit him on the head with a metal mug while he was asleep , causing an open wound . Notwithstanding the applicant \u2019s numerous requests for medical assistance on account of this incident , he had only been provided with oxygenated water and a bandage . The injury had resulted in the applicant having frequent headaches , vertigo , vomiting , and pus and blood dripping from one ear , which he had treated himself with his own urine .","On DATE the applicant had been severely beaten by GPE guards for allegedly organising inter - cell communication . In spite of his repeated requests for medical assistance on account of the injuries sustained as a result of the beating , the applicant had merely been given painkillers .","The Government submitted that the conditions of the applicant \u2019s detention in GPE no . CARDINAL had been adequate . They presented a certificate issued by the PERSON administration dated DATE attesting that , according to their inspection on that date , there had been QUANTITY of available space per detainee in each cell . The dimensions of bunks used in the GPE had been QUANTITY by QUANTITY . The basement floor cells , where the life prisoners had been held , had had windows measuring QUANTITY by QUANTITY , which size had afforded sufficient access to daylight . In DATE the cells had been lit by QUANTITY lamps , which had enabled the detainees to read and write without hurting their eyes . Each window had had a special ventilation pane , which had been able to be opened to air the cells . In addition , an electric ventilator in the corridor had ensured artificial ventilation of the cells . The cells had been fitted with radiators to ensure a stable temperature of CARDINAL . Each cell had been equipped with CARDINAL metal bunks , a chair , a shelf for personal belongings , a table , CARDINAL small cupboards which could also be used as stools for sitting , a clothes hanger , a tap with a sink , a mirror , and a toilet . The toilets had had bent pipes to prevent unpleasant odours and had been separated from the living area by fixed partitions .","The Government further submitted ( without providing any supporting documents ) that , as regards sanitary arrangements , the GPE \u2019s detainees had had DATE access to bathing facilities , where they had also been provided with razors and scissors . Disinfectant had been used on a regular basis to clean the cells and other LOC . Twice DATE ( in DATE and the DATE ) comprehensive measures against rats had been implemented and the entire GPE facility had been disinfected . The detainees had been provided with meals CARDINAL times a day , freshly cooked by the GPE \u2019s cooks . Food had been varied and in conformity with applicable nutrition regulations .","No instances of seizure of or damage to the applicant \u2019s belongings by the PERSON administration had been recorded .","As regards medical assistance , on DATE the applicant had been diagnosed as suffering from an acute ear infection . On DATE he had consulted an otolaryngologist and had been diagnosed with a fistula in CARDINAL of his ear canals . DATE and DATE the applicant had received in - patient treatment for pulled leg muscles . In DATE , having been transferred to a correctional colony to serve his sentence , the applicant had undergone an operation to extract a foreign body from his left ear canal .","As regards the incident of DATE , the applicant had never complained about it before to the domestic authorities . There was no evidence that this incident had ever taken place .","Relevant provisions of LAW as worded at the material time read as follows :","...","A defence representative shall be appointed in the event :","...","( CARDINAL ) NORP that ... the defendant wishes to engage a defence representative , but lacking funds or in view of other objective circumstances is unable to do so .","...","... if it is impossible to obtain the presence of the defence representative selected by the ... defendant within TIME ... the court may propose that the ... defendant appoint another defence representative . If this defence representative is unable to appear in the case within TIME and also in the event that ... the defendant has not engaged another defence representative within this timeframe ... the ... judge by a ruling or the court by a decision shall appoint a defence representative . \u201d","\u201c To support or disprove arguments presented in an appeal , the persons who advanced them may submit documents to the cassation court which were not in the case file ... \u201d","\u201c The cassation court shall review the lawfulness and reasonableness of the court judgment ... or part [ thereof ] which was appealed . The cassation court may exceed the scope of a cassation claim , if doing so would not prejudice the situation of the convicted or acquitted person ... \u201d","\u201c Grounds for annulment or modification of the judgment , decision or ruling shall be :","( CARDINAL ) substantial breach of the law of criminal procedure ;","( CARDINAL ) incorrect application of the criminal law ;","( CARDINAL ) the selected penalty being disproportionate to the gravity of the offence and the personality of the convicted person .","A judgment of the court of appeal taken by it as a first - instance court may be annulled or modified [ on the basis of ] bias , incompleteness of any inquiry , pre - trial or trial investigation or inconsistency in the ORG ... \u201d","Relevant Council of LOC and other materials establishing standards for conditions of detention and international reports concerning the conditions of detention in GPE can be found in the judgment in the case of ORG and Others v. GPE , nos . ORG and CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":["13","3","6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-b","6-3-c"],"non_violated_articles":["34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95920","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2009,"docname":"CASE OF KARSAI v. HUNGARY","importance":2,"conclusion":"Violation of Art. 10;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE .","The applicant is a historian and university professor . His main subject of research is the Second World War and , in particular , the extermination of NORP and GPE . He is the author of numerous publications on the subject .","In DATE a heated public debate took place in GPE as to whether a statue should be raised to commemorate GPE . In a wider context , the debate also concerned the question of GPE \u2019s failure to face up to its role in World War II and the Holocaust , as well as the attitude of NORP to this chapter of the country \u2019s DATE history \u2013 issues which had political implications , given that certain right - wing parties in the country identified their roots in the pre - World - War - II political system , of which GPE was an emblematic figure .","NORP In that context the applicant publicly stated that GPE had been one of the most reprehensible figures of NORP history , responsible for substantial anti - NORP legislation as well as for dragging GPE into World War II .","NORP In issue no . CARDINAL of the DATE paper GPE , the applicant published an article on this subject , criticising the right - wing media , including a certain PERSON , for embellishing PERSON \u2019s role and for making anti - NORP statements in the process . The article presented examples of , and refuted , various misconceptions about GPE \u2019s political acts , endorsed by right - wing authors in order to diminish his responsibility for the persecution of NORP , which , in the applicant \u2019s view , amounted to \u201c cautious NORP - bashing \u201d . CARDINAL of these examples reads as follows :","\u201c In ORG \u2019s charming words , CARDINAL anti - NORP laws \u2018 ORG within ORG \u2019s CARDINAL premierships . ... If we are counting , let us be accurate : not CARDINAL , but CARDINAL ( CARDINAL ) anti - NORP laws are linked to GPE \u2019s name . ... \u201d","The applicant also noted that :","\u201c ... [ I]t is rare that those supporting [ the plan to erect a ] statue of GPE are trying to defend their position using overtly anti - NORP arguments . \u201d","Mr ORG brought an action against the applicant before ORG . He claimed that his reputation had been tarnished by another passage in the applicant \u2019s article which read as follows :","\u201c In ORG database there are CARDINAL of articles and studies praising GPE , written in a sometimes uninhibited , sometimes more moderate style . In DATE , the extremely anti - NORP and irredentist ORG devoted a CARDINAL series to the ex - PM . The amateur historian [ ORG ] wrote several articles extolling the virtues of GPE DATE the devout NORP , the enthusiastic ORG leader DATE who in his view was an anti - NORP \u2018 Realpolitiker\u2019 .","These articles and studies prompted very little reaction . There are very few of us who , at least from time to time , pick up the products of the right - wing or extreme right - wing press , which , perhaps encouraged by this [ indifference ] , keeps lying , keeps slandering , keeps stirring feeling against and bashing the NORP ( zsid\u00f3znak ) , in an increasingly uninhibited way . \u201d","According to the plaintiff , the last sentence of the quotation could have been aimed at him and was prejudicial to his reputation .","On DATE ORG dismissed the action , holding in essence that the impugned sentence , especially the expression \u201c bashing the NORP \u201d did not concern the plaintiff himself but the right - wing and extreme right - wing media in general .","On DATE ORG reversed that decision on appeal and found for the plaintiff . Relying on sections DATE , CARDINAL and CARDINAL of LAW , it ordered the applicant to arrange for the publication of a rectification at his expense and to pay the legal costs , which amounted to MONEY ( ORG ) . Assessing the applicant \u2019s statements in the context of the whole article , ORG held that the impugned expression could be seen as relating to the plaintiff personally and that the applicant had failed to prove that it was true . In the court \u2019s opinion , to accuse the plaintiff , even contextually , of \u201c NORP bashing \u201d was a statement of fact that presented Mr ORG in a false light and was thus capable of prejudicing his reputation .","On DATE ORG upheld that decision , imposing another HUF CARDINAL in legal fees . It reaffirmed that \u201c the impugned statement DATE which was made , in general terms , with regard to the right - wing ( extreme right - wing ) press \u2013 could also be considered to concern the plaintiff \u201d ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57552","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":1984,"docname":"CASE OF \u00d6ZT\u00dcRK v. GERMANY (ARTICLE 50)","importance":2,"conclusion":"Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed","judges":"","text":["ORG The present case was referred to ORG \" ) in DATE and then by ORG ( \" the Commission \" ) in DATE . The case originated in an application ( no . CARDINAL\/CARDINAL ) against that ORG lodged with the ORG on DATE by a NORP national , Mr. PERSON .","ORG The ORG constituted to hear the case relinquished jurisdiction in favour of the plenary Court on DATE ( Rule CARDINAL of ORG ) . By a judgment delivered on DATE , the ORG held that there had been a breach of Article CARDINAL para . CARDINAL ( e ) ( article DATE ) of the LAW in that the applicant had not received the free assistance of an interpreter during proceedings before ORG ( Series A no . DATE , paragraphs CARDINAL of the reasoning and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) .","The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE to CARDINAL of the above - mentioned judgment ( pp . CARDINAL ) .","ORG At the hearings held on DATE , Mr. PERSON , counsel for the applicant , had sought , by way of just satisfaction for his client , reimbursement of interpretation fees of ORG CARDINAL and payment of lawyer \u2019s costs incurred before the Convention institutions ; as to the amount of the latter costs , he had stated that he left the decision to the discretion of ORG ( ibid . , p. CARDINAL , paragraph CARDINAL of the reasoning ) . The Government had not taken a stand on the matter ( ibid . ) .","In its judgment of DATE , the ORG reserved the whole of the question ( ibid . , paragraph CARDINAL of the reasoning and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) ; DATE , it referred the question back to LAW CARDINAL para . CARDINAL of the Rules of Court .","ORG The President of the ORG , to whom ORG had delegated the power to fix the further procedure , obtained , through ORG , the views of the Agent of the Government and of the Delegates of the Commission . On DATE , he directed that the Agent should have until DATE to file her comments and that the Delegates should then have DATE within which to reply in writing .","The PERSON received the Government \u2019s memorial on DATE . The Delegates\u2019 memorial was lodged on CARDINAL May , following an extension of the time - limit granted by the President of the ORG on DATE","On DATE , the Secretary to ORG informed the Registrar that the applicant \u2019s lawyer had notified him of his claims and comments by telephone and not in writing , as he had been requested to do .","ORG Mr. PERSON , substitute judge , replaced Mr. PERSON , who was prevented from taking further part in the consideration of the case ( Rules CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ) .","ORG After consulting ORG and the Delegates of the Commission through the Deputy PERSON , the ORG decided on DATE that there was no need to hold a hearing ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-81783","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2007,"docname":"CASE OF FREITAG v. GERMANY","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE in GPE .","The applicant is the manager of the M GmbH ( ORG ) . He held registered shares of ORG ( the \u201c target company \u201d ) , an insurance company which was seated in GPE .","On DATE , respectively , the shareholder 's meetings approved the merging of the target company into the E - Versicherungsgruppe AG ( the \u201c acquiring company \u201d ) , which was seated in GPE . The shareholders of the target company were to receive shares in the acquiring company .","On DATE the merger of the CARDINAL companies was announced pursuant to section CARDINAL , subsection CARDINAL of LAW ( Umwandlungsgesetz , see relevant domestic law , below ) in LAW ( PERSON der PERSON ) . The applicant maintains that he was unaware of this publication .","Meanwhile , on DATE a shareholder of the target company lodged a motion with ORG ( Landgericht ) with the aim of being allocated an additional number of shares . Having been informed that he did not have such a claim under the applicable law , the shareholder withdrew his request on DATE .","On DATE ORG , which was represented by counsel , lodged a motion against the acquiring company before ORG with the aim of obtaining compensation ( bare PERSON ) for the alleged loss of value of the shares incurred by the merger pursuant to section CARDINAL of LAW . The company further requested ORG to order the defendant party to submit the date of the most recent announcement of the merger in the public bulletin . Finally , the company requested the GPE court to transfer the case - file to the competent court in case it should lack jurisdiction .","On DATE ORG informed both parties that , pursuant to section CARDINAL \u00a7 CARDINAL of LAW , the court at the seat of the target company , which was not GPE , appeared to be locally competent . ORG invited both parties to submit their comments within DATE . This letter was served on the M - Company on DATE .","By telefax of CARDINAL DATE the plaintiff maintained that ORG should be regarded as having jurisdiction . In case ORG should not follow this opinion , the plaintiff alternatively requested to transfer the case - file to ORG .","NORP The applicant 's counsel further declared that he lodged all requests in the pending proceedings also on behalf of the applicant , as it was not clear whether the shares were owned by ORG or by the applicant personally .","On DATE the acquiring company requested an extension of the time - limit until DATE with regard to the upcoming DATE .","On DATE ORG , without having heard the applicant , granted the requested extension . The applicant 's counsel was informed of this decision by court - letter dated DATE .","NORP By letter dated DATE , which reached ORG on DATE , the acquiring company maintained that , according to the relevant provisions , ORG as the court at the seat of the target company was locally competent . It further pointed out that the action had been lodged out of the statutory time - limit of DATE following the final announcement of the merger in an official bulletin , which had expired on CARDINAL DATE . As the motion had been lodged with an incompetent court , it had not been properly lodged within that time - limit .","On DATE the applicant replied that the acquiring company had been acting in bad faith as it was the only party to the proceedings which knew about the impending expiry of the time - limit and had purposefully delayed the proceedings .","By order of CARDINAL DATE ORG transferred the case to ORG , where it arrived on DATE .","On DATE ORG declared the actions lodged on behalf of ORG and of the applicant inadmissible for having been lodged outside the statutory time limit . That court noted that the registration of the CARDINAL companies ' merger had been announced on behalf of ORG on DATE by publication in ORG and in a GPE DATE newspaper and on behalf of ORG on DATE in ORG and on DATE in the Official Bulletin of GPE . It followed that DATE time - limit started to run on DATE . ORG noted that the plaintiffs had filed their requests within the statutory time - limit with ORG . However , as that court had transferred the case to the competent ORG only after expiry of the time - limit , it had not been lodged in time . According to ORG , LAW , which provided that a law - suit remained pending even if it was transferred from a court which lacked jurisdiction , did not apply to the proceedings aimed at determining a shareholder 's compensation ( aktienrechtliches ORG ) .","On DATE the applicant lodged a complaint with the aim to declare his action admissible . Alternatively , he requested to be granted reinstitution into the proceedings ( Wiedereinsetzung in den vorigen Stand ) with respect to the time - limit . The applicant pointed out that he had not known at which date the merger had been announced in the official bulletin . Accordingly , he could not have known at which date the time - limit would expire . ORG had awaited the defending parties ' submissions without referring the case to ORG , as requested by the applicant . Under these circumstances , the applicant claimed that section CARDINAL of the Code of Civil Procedure should be applicable by analogy to the effect that the lodging with ORG had to be regarded as sufficient in order to comply with the statutory time - limit . Alternatively , the applicant claimed that he should be granted a reinstitution into the proceedings with regard to the fact that the delays which had occurred before ORG before the case was transferred to ORG were not imputable to him . Finally , the applicant maintained that ORG had failed to publicly announce the request filed by the other shareholder on CARDINAL DATE and to appoint a joint representative in order to safeguard the other external shareholders ' rights . He further maintained that his complaint should be declared admissible as a follow - up request to the first request lodged in DATE .","On DATE ORG ( GPE ) rejected the applicant 's complaint . It noted that the merger had been announced on DATE in ORG and on CARDINAL DATE in the Official Bulletin of the Municipality of Hamburg . Confirming ORG finding relating to the expiry of the statutory time - limit and to the applicability of section CARDINAL of the Code of Civil Procedure , ORG considered that only a strict application of sections CARDINAL and CARDINAL of the LAW guaranteed that the shareholders could have certain knowledge within a short period of time as to whether compensation would be paid . ORG further considered that the request lodged by the other shareholder in DATE was inadmissible . Accordingly , this request did not allow to file a follow - up request within the time - limit of section CARDINAL \u00a7 CARDINAL .","ORG expressed its doubts as to whether the rules on reinstitution into the proceedings were applicable to the present proceedings . In any event , the applicant had not been hindered to comply with the statutory time - limit through no fault of his own . Even though section CARDINAL \u00a7 CARDINAL of LAW contained a clear and unambiguous provision on jurisdiction , he had insisted that ORG had been competent .","On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant 's constitutional complaint . According to that court , the applicant 's complaint did not have fundamental constitutional significance . Neither was the acceptance of the complaint indicated in order to enforce the constitutional rights which the applicant claimed had been violated . While it could not be excluded that ORG , when deciding on the applicant 's request for reinstitution into the proceedings , failed in a constitutionally questionable way sufficiently to consider the conduct of ORG , the applicant \u2013 who had learned in time about the extension of the time - limit granted to the defendant on DATE had failed to apply for a reduction of that extended time - subsidiarity . The remainder of the complaint did not have any prospect of success , as the applicant 's submissions did not disclose a violation of his rights under LAW . This decision was served on the applicant on DATE .","The merging of shareholder companies was , at the relevant time , governed by LAW ) , which provided as follows :","According to section CARDINAL , a shareholder could request compensation ( bare PERSON ) if the value of the shares he was allocated in the acquiring company did not equal the value of the shares he held in the target company .","Section CARDINAL provided that the merger of CARDINAL companies had to be registered first in the commercial register at the seat of the target company and , subsequently , in the commercial register at the seat of the acquiring company . Each registration had to be announced by publication in ORG and in CARDINAL further periodical . The second publication organ was chosen by the commercial court by DATE for DATE and made public by notifying , inter alia , the chamber of commerce . The merger had to be regarded as being publicly announced by DATE of the latest publication ( see section CARDINAL \u00a7 CARDINAL ) .","The provisions on procedure read as follows :","Section CARDINAL","Time - limit","\u201c A motion for a court decision pursuant to section CARDINAL ... has to be lodged within DATE following the date on which the registration has been publicly announced pursuant to the provisions of this law . \u201d","Section CARDINAL","Competent court","\u201c ( CARDINAL ) The competent court is ORG at the seat of the company whose shareholder is entitled to lodge the motion . \u201d","Section CARDINAL","Court proceedings","\u201c ( CARDINAL ) The proceedings are governed by the law on matters of non - contentious jurisdiction ( freiwillige PERSON ) ...","( CARDINAL ) The motion has to be lodged against the acquiring company ...","( CARDINAL ) ORG has to announce the motion in LAW ( PERSON ) and , if the statutes of the respective company so provide , in other public bulletins . Other shareholders may lodge their own motions within DATE following publication . This has to be pointed out in the publication . A request lodged after expiry of this time - limit is inadmissible ... \u201d","Section CARDINAL","Joint representative","\u201c ( CARDINAL ) ORG has to appoint a representative in order to safeguard the rights of those external shareholders who did not lodge an own motion ... \u201d","NORP In proceedings governed by LAW , an action complies with a time - limit even if it has been lodged with an incompetent court and is only later on transferred to the competent court ( section CARDINAL of the Code of Civil Procedure ) .","In separate proceedings ORG ( ORG , case no . II ZB CARDINAL ) ruled on DATE that section CARDINAL of the Code of Civil Procedure should also apply by analogy to proceedings aimed at determining a shareholder 's compensation . This decision was based on considerations of legal certainty and the interest of an acceleration of the proceedings . ORG further noted that a court was generally obliged rapidly to inform the parties about its own lack of jurisdiction and swiftly to process a request to transfer the case - file to the competent court ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71120","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF IVANNIKOVA v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in LOC .","The applicant receives welfare payments for her child . In DATE she brought civil proceedings against a local welfare authority , claiming arrears in those payments for DATE .","On DATE the Novousmanskiy ORG of the Voronezh Region awarded the applicant MONEY ( RUR ) .","On DATE a writ of execution was issued and sent to the bailiffs .","On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of CARDINAL DATE and returned the writ of execution to the applicant , as the debtor had insufficient funds .","In DATE the applicant was paid the amount due pursuant to the writ of execution .","Section CARDINAL of LAW of DATE provides that a bailiff \u2019s order on the institution of enforcement proceedings must fix a time - limit for the defendant \u2019s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .","Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79156","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2007,"docname":"CASE OF \u0160UBINSKI v. SLOVENIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;John Hedigan","text":["The applicant was born in DATE and lives in GPE .","The application concerns CARDINAL sets of criminal proceedings . In both sets of proceedings , the hearings were closed to the public for the purpose , among others , of protecting the rights of the alleged victims and \u2013 as regards some of the hearings \u2013 the private life of the applicant .","On DATE an official police report ( uradni zaznamek ) was prepared concerning the applicant 's attitude towards children he had taught in a primary school . It contained a statement given by CARDINAL of the school teachers which had been obtained in accordance with section CARDINAL of GPE ( Zakon o kazenskem postopku DATE see paragraph CARDINAL below ) . The teacher stated that she had not noticed anything strange in the applicant 's attitude towards children . She also described an incident where the parents of a boy who the applicant had allegedly abused had come to the school to complain about the applicant 's conduct and stated that the applicant had resigned following this incident .","On DATE the ORG ( NORP dr\u017eavno to\u017eilstvo v PERSON ) lodged a request for a criminal investigation on the basis of reasonable suspicion that the applicant had committed CARDINAL criminal offences of sexual assault on a minor under DATE ( spolni napad na osebo , mlaj\u0161o od petnajst let ) . The request was based on findings from the preliminary proceedings .","On DATE , after questioning the applicant , the investigating judge of the ORG ( Okro\u017eno sodi\u0161\u010de v PERSON ) decided to open a criminal investigation , and that decision became final on DATE .","An examination of witnesses scheduled for CARDINAL DATE was adjourned at the applicant 's request .","On DATE , DATE and DATE the investigating judge examined several witnesses , mostly for the prosecution .","On CARDINAL and DATE the court examined several defence witnesses .","On DATE the applicant proposed a re - examination of certain witnesses . The investigating judge , disagreeing with the proposal , requested the interlocutory - proceedings chamber of CARDINAL judges ( zunaj obravnavni senat ) at the Murska Sobota District Court to decide on the issue . On DATE the chamber dismissed the proposal .","On DATE the applicant was indicted for the criminal offence of sexual abuse of a minor . The indictment became final on CARDINAL DATE .","On DATE the ORG held a hearing . The applicant 's lawyer requested that the alleged victim , who was a minor , be examined as a witness . The minor was consequently examined by the investigating judge on DATE .","The next hearing was held on DATE . After the hearing , the ORG convicted the applicant and sentenced him to DATE imprisonment . The written judgment was issued on DATE .","The applicant appealed on CARDINAL DATE .","On DATE ORG ( PERSON ) dismissed the appeal .","Consequently , the first - instance court 's judgment became final on DATE .","On DATE the applicant lodged a request for the protection of legality ( zahteva za varstvo zakonitosti ) .","On DATE ORG Vrhovno sodi\u0161\u010de ) rejected the request .","On DATE the applicant lodged a constitutional appeal .","The proceedings are pending before ORG .","On DATE the applicant was arrested by the police .","On DATE he was brought before the investigating judge at the ORG on suspicion of having committed another criminal offence . On DATE the investigating judge remanded him in custody .","On DATE the public prosecutor applied for a criminal investigation .","On DATE the applicant appealed against his detention . On DATE the interlocutory - proceedings chamber dismissed the appeal as unfounded .","On DATE the investigating judge examined the applicant and opened a criminal investigation against him .","On DATE the detention was prolonged for DATE by the interlocutory - proceedings chamber . An appeal by the applicant against the prolongation was dismissed by ORG on DATE .","On DATE and DATE the investigating judge examined witnesses .","On DATE the investigating judge appointed CARDINAL medical experts . The experts submitted their opinions on CARDINAL May and DATE respectively .","On DATE the public prosecutor indicted the applicant for the criminal offences of sexual assault on a minor and of presenting and manufacturing pornographic material concerning minors ( prikazovanje in izdelava pornografskega gradiva z zlorabo mladoletne osebe ) .","On DATE the applicant 's detention was prolonged by a decision of the interlocutory - proceedings chamber . An appeal of DATE was dismissed on DATE and a request for the protection of legality , lodged on DATE , was rejected by ORG on DATE . It appears that the applicant 's detention was subsequently prolonged DATE , the last time on DATE ( see paragraph CARDINAL below ) . The applicant 's appeals against the prolongation of his detention were dismissed by the second - instance court .","On DATE the applicant appealed against the indictment . The interlocutory - proceedings chamber dismissed the appeal on DATE .","On DATE the court held a hearing .","The hearing scheduled for DATE was cancelled because the applicant requested the withdrawal of the public prosecutor , all members of the chamber ( senat ) and the president of the ORG . The requests were dismissed by the president of the ORG and the president of ORG on DATE and CARDINAL DATE respectively .","The hearing scheduled for DATE was also cancelled since the applicant requested the withdrawal of the president of the chamber and the president of the court . On DATE the requests were dismissed by the president of ORG .","The hearing scheduled for DATE was cancelled at the request of the applicant 's lawyer owing to her commitments in another \u2013 unrelated DATE case .","The hearing scheduled for DATE was cancelled owing to a new request for withdrawal based essentially on the same reasons as the previous one . The request was rejected on CARDINAL DATE .","The next hearing was scheduled for DATE . Before the hearing , the court dismissed a new request for the withdrawal of judges , finding that it was a delaying tactic . As DATE had elapsed since the last hearing , the court had to conduct the trial ab initio with , in particular , a fresh examination of the applicant and the reading of testimony . The applicant requested that the witnesses and experts be examined again .","Before the hearing on DATE , the applicant again filed a request for the withdrawal of judges , but it was rejected . The applicant requested that the alleged victim be examined again .","On DATE the alleged victim was examined by the investigating judge .","On DATE , before the scheduled hearing , at TIME , the applicant injured his finger while opening the window of his cell . At TIME the officers took him to the court intending to ask the judge whether he should be taken to see a doctor immediately or at the end of the hearing . At the court , the applicant requested that jurisdiction in the case be transferred to another court and the hearing was consequently adjourned .","Subsequently , on DATE at TIME , the officers offered to take the applicant to see a doctor but he refused to go . At the applicant 's subsequent request , made at TIME , he was taken to see the doctor at TIME According to the letter sent by the prison authorities to the ORG , the doctor did not consider the injury to be serious .","On DATE ORG dismissed the request for transfer of jurisdiction . On DATE the applicant lodged a request for the protection of legality against that decision . The case file was thus sent to ORG and the first - instance court cancelled the scheduled hearings . On DATE ORG rejected the request .","On DATE the president of the chamber himself requested to stand down from the proceedings . He expressed doubts as to his ability to conduct the proceedings properly owing to the conduct of the applicant and his lawyer .","On DATE the case was referred to a new judge .","On DATE a hearing was held . Before the hearing , the court dismissed the request for the withdrawal of judges and the transfer of jurisdiction , noting that the applicant had abused his procedural rights .","On DATE a hearing was held at which several witnesses and experts were heard .","On DATE another hearing was held and the following hearing was scheduled for DATE .","On DATE the applicant was taken to the hospital where it was discovered that he had swallowed CARDINAL coins . However , the court refused to cancel the scheduled hearing .","After the hearing held on DATE the court delivered a judgment finding the applicant guilty and sentenced him to DATE imprisonment , inclusive of the sentence imposed in the previous set of proceedings ( see paragraphs CARDINAL above ) . The written judgment was issued on DATE .","On DATE the public prosecutor lodged an appeal .","On DATE the applicant appealed and on DATE the applicant 's lawyer appealed .","On DATE ORG increased the sentence to DATE imprisonment . The judgment became final on DATE .","On DATE the applicant lodged a request for the protection of legality with ORG .","On DATE the court rejected the request .","On DATE the applicant lodged a constitutional appeal .","The proceedings are pending before ORG .","In GPE , criminal proceedings before district courts ( okro\u017ena sodi\u0161\u010da ) are divided into CARDINAL stages \u2013 preliminary proceedings ( predkazenski or predhodni postopek ) , conducted by the police and the public prosecutor ; a criminal investigation ( preiskava ) , conducted by the investigating judge of a ORG ; and the trial ( glavna obravnava ) , held before a mixed chamber ( senat ) of professional and lay judges .","A trial is preceded by a formal indictment , which normally follows a criminal investigation ( preiskava ) . Prior to that , however , are the preliminary proceedings in which the police prepare a criminal complaint ( ovadba ) and the public prosecutor then lodges a request for a criminal investigation ( zahteva za preiskavo ) .","Section CARDINAL of LAW ( Zakon o kazenskem postopku , Official Gazette no . CARDINAL , \u201c the CPA \u201d ) reads , as far as relevant :","\u201c ( CARDINAL ) If there are reasons to suspect that a criminal offence liable to mandatory prosecution has been committed , the police shall take the necessary steps to pursue the perpetrator , ensuring that the perpetrator or his accomplice do not go into hiding or abscond , discovering and securing traces of the offence or objects of value as evidence , and collecting all information that may be useful for the successful conduct of criminal proceedings .","( CARDINAL ) In order to fulfil the above duty the police may seek information from citizens , inspect vehicles , passengers and luggage , restrict movement within a specific area for a limited period of time , carry out what is necessary to identify persons and objects ; send out a wanted notice concerning persons and objects ; inspect in the presence of the responsible person any facilities , LOC and documentation of enterprises or other legal entities , and take other necessary measures . The findings of facts and circumstances relevant to the criminal proceedings , as well as the objects found or seized , shall be recorded in writing or an official report shall be prepared in that connection .","( CARDINAL ) Police may summon individuals but must inform them of the reasons . They may forcibly bring an individual who has failed to appear after being summoned , if he has been alerted to that possibility in the summons . In taking measures under this section , police may not examine citizens as defendants , witnesses or experts .","...","( CARDINAL ) On the basis of the information collected the police shall draw up a criminal complaint in which it shall set out the evidence discovered in the process of gathering information ... . \u201d","In principle , the request for an investigation is based on the information gathered by the police in the preliminary proceedings ( see paragraph CARDINAL above ) . However , prior to the opening of an investigation , the investigating judge can , if necessary , take individual investigative measures ( section CARDINAL of the CPA ) .","The request for an investigation must include , inter alia , a description of the alleged acts and their legal characterization , the identification of the suspect and the evidence substantiating a reasonable suspicion ( utemeljeni sum ) that the suspect has committed the alleged acts . The public prosecutor can also propose that a suspect be detained on remand . The relevant provisions of CARDINAL of the CPA provide :","\u201c ( CARDINAL ) The request for investigation shall specify : the person against whom an investigation is requested , the description of the acts constituting a criminal offence , the statutory designation of the criminal offence , the circumstances establishing the reasonable suspicion , and evidence already collected . The public prosecutor shall indicate in the request which particular circumstances should be explored in the investigation and which particular measures should be taken , and may propose that the person against whom investigation is requested be detained .","( CARDINAL ) The public prosecutor shall send to the investigating judge the report and all documents and records of the measures taken . At the same time , he shall send to the investigating judge any items to be adduced as evidence or shall notify him of their whereabouts .","( CARDINAL ) If the public prosecutor withdraws a request for an investigation before the decision on investigation is rendered , the investigating judge shall decide that the request is dismissed and inform the aggrieved party that he or she may take over the prosecution ( sections CARDINAL and DATE ) . \u201d","There is no provision in the CPA requiring the applicant to be notified at this stage . A copy of the request for an investigation is normally sent to the applicant later , together with a summons to appear before the investigating judge ( section CARDINAL of the CPA ) .","The public prosecutor 's request for an investigation requires a decision by the investigating judge . The investigating judge may comply with the request and open a criminal investigation or , if he does not agree with it , refer it to the interlocutory - proceedings chamber of CARDINAL judges ( zunaj obravnavni senat ) for them to decide . Appeals may be lodged against the decision dismissing or upholding the request ( section CARDINAL of the CPA ) .","After the closure of the criminal investigation the public prosecutor prefers a formal indictment or otherwise drops the charges ( sections CARDINAL and CARDINAL of the CPA ) .","As regards the guarantee of the right to a trial within a reasonable time , the CPA , as far as relevant , provides ( sections CARDINAL , CARDINAL and CARDINAL respectively ) :","\u201c The court shall use its best endeavours to ensure that the proceedings are conducted without unnecessary delay and that any abuse of the rights of participants in the proceedings is prevented .","( CARDINAL ) If the criminal investigation is not completed within DATE , the investigating judge shall inform the president of the court of the reasons .","( CARDINAL ) The president of the court shall take the necessary measures to complete the investigation .","( CARDINAL ) The presiding judge shall schedule the main hearing within a maximum DATE after an indictment has been referred ... Should he fail to schedule the main hearing within the said period , he shall inform the president of the court of the reasons for not doing so . The president of the court shall take the necessary measures to schedule the main hearing . \u201d"],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91950","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2009,"docname":"EULE v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","The applicant is a retired military officer who underwent psychotherapeutic and psychoanalytical treatment from DATE onwards . He was discharged in DATE on grounds of his medical condition . The therapy was discontinued in DATE in view of the applicant having fallen in love with the therapist , who initially treated the applicant 's feelings as \u201c transference of affection \u201d ( \u00dcbertragungsliebe ) and personally sought supervision . In DATE the applicant and the therapist commenced an intimate relationship that ended in DATE .","On DATE the applicant sued the therapist for damages of NORP marks CARDINAL,CARDINAL.CARDINAL ( DEM ) ( euros ORG ) ) . He argued that the therapist had discontinued the therapy in view of the commencing of an intimate relationship and had thereby violated her duties from the contract governing the therapeutic treatment as well as her professional duty to remain sexually uninvolved with a client ; because of the therapeutic malpractice he had suffered from a mental breakdown that had required further therapeutic treatment for which he had incurred the damage complained of .","On DATE ORG ordered a first expert opinion . The expert witness submitted that the therapist had seriously breached her professional duties . The court held that the expert opinion was not satisfactory as it was incoherent , not fully reasoned and did not differentiate between professional , therapeutic and ethical standards .","In response to the opinion of the first expert witness , the defendant therapist submitted a private expert opinion that found no violation of therapeutic and professional standards and denied that the therapist 's actions were causally linked to the damage complained of . The court noted that the private expert opinion had come to different conclusions from the first expert opinion but was not in itself fully satisfactory ; the court therefore ordered another expert opinion on CARDINAL DATE .","The second expert witness criticised the previous expert opinions for their reliance on psychoanalytical tools and denied any wrongdoing on the part of the therapist as she had conscientiously transferred the therapeutic relationship into an intimate one between consenting adults . The court noted that the second expert witness ' opinion was unsatisfactory because the parties had engaged in DATE among other therapeutic techniques \u2013 psychoanalysis and the expert witness had displayed an overly critical and biased assessment of psychoanalysis .","On DATE the court ordered a third expert opinion pursuant to LAW ( see \u201c Relevant domestic law \u201d below ) . The expert witness delivered his opinion on DATE ; at the applicant 's instigation , the expert witness submitted a clarification of his opinion on DATE . He stated no discernable professional standards for the gentle cancellation of a therapeutic relationship could be verified ; there were no professional standards concerning the period between the discontinuation of a therapeutic and the beginning of an intimate relationship between therapist and patient ; the only possible link between the intimate relationship and the damage complained of was the applicant 's realisation that he had not found what he had been looking for . On DATE the applicant challenged the third expert witness on grounds of bias ; on DATE the court rejected the challenge as ill - founded .","On DATE the court dismissed the applicant 's claim at the end of an oral hearing . It held that the therapist had not violated therapeutic and professional standards and based its decision mainly on the third expert witness 's opinion , which it held to be convincing , methodically sound and precise .","On DATE ORG informed the parties of its intention to dismiss an appeal lodged by the applicant as ill - founded pursuant to LAW see \u201c relevant domestic law \u201d below ) on the grounds that the first expert witness ' opinion had been rightly rejected by ORG . ORG noted that the therapist had acted responsibly , had not violated the therapist 's duty to remain sexually uninvolved and that there were no strict professional rules concerning the minimum period between the ending of a therapeutic and the beginning of an intimate relationship between a former therapist and patient . On DATE counsel for the applicant submitted further observations . On DATE ORG dismissed the applicant 's appeal .","On DATE counsel for the applicant lodged a constitutional complaint with ORG arguing that ORG had not taken into account the applicant 's further submissions of DATE and had treated the applicant as a perpetrator rather than a victim of sexual abuse .","On DATE ORG , relying on the relevant provisions of its Rules of Procedure , refused to accept the applicant 's constitutional complaint for examination without giving further reasons ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","Under LAW the court may order a new expert opinion by the same or another expert witness if it considers the expert opinion to be unsatisfactory .","Under LAW , ORG may reject an appeal by unanimous decision if it is convinced that the appeal has no prospect of success , the legal matter is not of fundamental importance and the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by ORG . ORG or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and have to give the appellant the opportunity to submit observations within a set time - limit . The decision under LAW is not subject to an appeal and ORG can not grant leave to appeal on points of law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77686","languageisocode":"ENG","respondent":"HUN","branch":"ADMISSIBILITY","date":2006,"docname":"SZILAGYI v. HUNGARY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . Because of his disability , he is represented before the ORG by his brother , PERSON . The Government are represented by PERSON , Agent , ORG and Law Enforcement .","The Szigetv\u00e1r Public Water System Corporation ( Szigetv\u00e1ri V\u00edzik\u00f6zm\u0171 T\u00e1rsulat ) was founded on DATE . The applicant , co - owner of real estate in PERSON , was obliged to become a member , pursuant to section CARDINAL \u00a7 CARDINAL of the Act on Water Management ( \u201c the LAW \u201d ) . According to paragraph CARDINAL of the same section , the applicant had to pay a compulsory membership fee , a so - called \u201c beneficiary \u2019s contribution \u201d ( \u00e9rdekelts\u00e9gi hozz\u00e1j\u00e1rul\u00e1s ) , to the ORG . The amount of the fee ( in the applicant \u2019s case , MONEY ) was determined in relation to the size of his real estate .","The decisions concerning the fees payable by each member were dispatched in DATE . On DATE and DATE , a reminder was sent to the applicant about the sum he owed the Corporation . Disputing the latter , the applicant wrote a complaining letter to the ORG on DATE .","On DATE the applicant challenged the constitutionality of the Act before ORG . On DATE that court dismissed the applicant \u2019s motion , together with several other similar cases . It held that the unilateral action of the legislator , obliging inhabitants of a certain area to be members of a public water system corporation and regulating their rights and obligations concerning the use of water , was justified by the public interest in preserving the quality of water and in protecting the environment . In so far as the applicant \u2019s complaint concerned the conditions of compulsory membership of a specific corporation , ORG found that the ordinary courts had jurisdiction in such matters . In this connection it also noted that the corporation was not an administrative body and that the corporation and its members had a relationship under civil , rather than administrative , law . It was observed that any member disputing the fee payable had the right to seek judicial review within DATE counted from the date of notification of the imposition of the fee ( sections QUANTITY of the Act ) .","On DATE the applicant instituted proceedings in the ORG against the ORG . He claimed that his membership of the corporation was not only involuntary but also unlawful , in that the water supply for his real estate was not provided by the corporation . In the absence of any service performed by the corporation , no liabilities should have arisen on his part .","On DATE the applicant completed his action . In the first paragraph on page CARDINAL of his submission he wrote :","\u201c ... The purposeless dispute has been going on between the parties since DATE , for DATE . The water management company obliges PERSON to make beneficiary \u2019s contributions at the price of infringing his rights ! \u201d","On DATE ORG rejected the applicant \u2019s action without an examination of its merits . It held that it had been submitted outside the DATE statutory time - limit following the delivery of the impugned decision , laid down in section QUANTITY on Water Management . It reasoned that :","\u201c the applicant himself stated in his submissions clarifying his action ( in the first paragraph on page CARDINAL ) that a decision obliging him to pay a contribution was delivered to him in DATE \u201d .","In his appeal the applicant requested the annulment of the first instance order and contested ORG statements . He argued that ORG had , by stating that he had admitted that a decision had been served on him in DATE , misquoted the first paragraph of page CARDINAL of his submissions . In fact , no formal decision had been given , or served on him , in DATE or on any other subsequent date . The applicant argued that , no decision having ever been given , he could not possibly have missed any time - limit .","On DATE the Baranya County Regional Court dismissed the applicant \u2019s appeal . It found that :","\u201c the applicant had not attached the disputed decision to his submissions , but he had received it ; this fact was rightly referred to by ORG , which the second - instance court quotes , for the sake of emphasis : \u00ab The water management company obliges PERSON to make beneficiary \u2019s contributions ORG . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78555","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF TSARUK v. UKRAINE","importance":4,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the town of PERSON , GPE region , GPE .","In DATE the applicant instituted proceedings in ORG against her former employer , ORG ( \u0428\u0430\u0445\u0442\u0430 \u00ab PERSON \u00ab PERSON ) , for salary arrears and compensation for moral damage . On DATE the court awarded the applicant CARDINAL NORP hryvnias ( \u201c UAH \u201d ) ( PERSON \u043c\u0456\u0441\u044c\u043a\u043e\u0433\u043e \u0441\u0443\u0434\u0443 ORG \u043e\u0431\u043b\u0430\u0441\u0442\u0456 ) .","NORP In DATE ORG ( ORG \u0432\u0456\u0434\u0434\u0456\u043b \u0414\u0435\u0440\u0436\u0430\u0432\u043d\u043e\u0457 \u0432\u0438\u043a\u043e\u043d\u0430\u0432\u0447\u043e\u0457 \u0441\u043b\u0443\u0436\u0431\u0438 PERSON \u043b\u0443\u0446\u044c\u043a\u043e\u0433\u043e \u043c\u0456\u0441\u044c\u043a\u043e\u0433\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f \u044e\u0441\u0442\u0438\u0446\u0456\u0457 ) initiated the enforcement proceedings .","NORP By letter of DATE , ORG informed the applicant that the debtor 's accounts had been seized but that it was impossible to deal in the debtor 's property because the debtor was a ORG enterprise .","On DATE ORG initiated bankruptcy proceedings against the debtor enterprise .","The applicant received ORG CARDINAL,CARDINAL.CARDINAL ; according to the applicant , the rest of the debt remains unpaid .","The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108843","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2012,"docname":"HIKMAT HABIB v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska","text":["The applicant , Mr PERSON , is an NORP national who was born in DATE and is currently in GPE .",", may be summarised as follows .","On DATE the applicant applied for asylum and a residence permit in GPE , claiming that he had arrived in GPE DATE . In written submissions and during interviews with ORG ( Migrationsverket ) , where the applicant \u2019s legal counsel was present , he stated that he was NORP , born in GPE , but that his family had been moved to GPE ( the capital of the NORP Regional Government area , hearafter \u201c the LOC area \u201d ) in DATE and had lived there until DATE when , after the fall of PERSON , they had returned to the family \u2019s house in GPE . He claimed that his father had then worked for ORG as an interpreter and that , in DATE , they had heard from neighbours that terrorists were looking for his father because he had cooperated with the NORP . The applicant further alleged that he and his uncle had owned a catering business which delivered food to the NORP troops in the area of GPE ( NORP ) . Thus , when his father was threatened by the terrorists , the applicant had also felt insecure and under threat due to his own work . He therefore terminated the contract with the NORP and he and his family , including his uncle , moved to the city of their ancestors , LOC ( a town outside GPE ) . The applicant acknowledged that he had never been personally threatened but , during his time in GPE , the family was informed that the terrorists were still looking for them in GPE . Moreover , the applicant claimed that he could not return to GPE since he had no relatives left there and the terrorists could find him there as well . To prove his identity , the applicant submitted a certificate of citizenship issued in GPE in DATE and an identity card issued in GPE in DATE .","On DATE ORG rejected the application . It first noted that the applicant had lived most of his life in GPE and that he was NORP and that , therefore , it would try his asylum claim on the basis that he came from the KRG area of GPE . ORG then observed that he had not shown that he could not benefit from the protection and help of the authorities in the KRG area against the alleged terrorist threat . In its view , nothing in the case indicated that the applicant would not benefit from the authorities\u2019 protection to the same extent as other citizens of the area . As the ORG found that there were no other grounds on which to grant the applicant leave to remain in GPE , it rejected his application . ORG added , for information , that it had a contract with a NORP organisation with the goal of facilitating reintegration for returnees to the KRG area through labour market measures , such as financial support to create a business .","The applicant appealed to ORG ( Migrationsdomstolen ) , maintaining his claims and adding that , in DATE , his family \u2019s house in ORG had been the target of a grenade attack . His family had then moved to GPE . Thus , it was clear to him that the authorities could not protect him . Moreover , he wanted his application to be tried on the basis that he came from GPE and not the KRG area since he had no personal connection to that area .","On DATE ORG , after having held an oral hearing , rejected the appeal . It first noted that since ORG had tried the applicant \u2019s claim in relation to the LOC , the court would do so as well . Moreover , since he had lived there most of his life and done all his schooling there , including after reaching maturity , the court found that he had a close connection to GPE . In respect to this , it also noted that his certificate of citizenship had been issued in GPE in DATE for which reason he should have no practical problems returning there . As concerned the threat from terrorists , the court noted that these had primarily been directed against the applicant \u2019s father and that they had emanated from individual persons , not the authorities . Furthermore , the threats had occurred in GPE . As the applicant had not been able to specify any concrete threat against him personally , in particular if he were to return to GPE , the court concluded that he had not shown that he would face a real and personal risk of persecution or ill - treatment in the LOC area . As there was no other ground on which to grant the applicant leave to remain in GPE , the court upheld ORG decision in full .","On DATE ORG ( Migrations\u00f6verdomstolen ) refused leave to appeal . The deportation order thereby became enforceable .","In DATE the applicant lodged an application with ORG for reconsideration of his case due to new circumstances . He maintained his previous claims but added that he had contacted ORG in GPE to ask some former colleagues about the threats against him . In reply , he had received a letter , via e - mail on DATE , from PERSON , Company Commander in GPE which he insisted proved that he was sought by terrorists and that they wanted to kill him . The e - mail included a \u201c Memorandum for NORP Migration Board \u201d , dated DATE , and signed by PERSON , Company Commander in GPE . In this , the commander stated that , during his first deployment to GPE in DATE , he had been stationed in GPE where the applicant \u2019s father had been his interpreter . In this connection , he had also come to know the applicant who had \u201c played a key role in the establishment of a new ORG in GPE through the coordination and delivery of a food service contract in support of this Company . \u201d ORG had provided security for over CARDINAL NORP citizens but had put the applicant at risk from ORG . Against this background , the commander asked ORG to \u201c give special consideration to [ the applicant ] when deciding his immigration status \u201d since \u201c [ f]orcing him to return to GPE at this time poses great risks to his personal safety . \u201d","On DATE ORG decided not to reconsider the case since no new circumstances had been presented and it had already considered the applicant \u2019s fear of being targeted by terrorists .","The applicant appealed to ORG , insisting that the letter clearly showed that he was a target for terrorists and that he was at the top of their \u201c death list \u201d . On DATE the court upheld the ORG \u2019s decision in full . It is unclear whether this judgment was appealed against to ORG .","The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utl\u00e4nningslagen , DATE hereafter referred to as \u201c the DATE LAW ) which replaced , on DATE , the old LAW ( Utl\u00e4nningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .","LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term \u201c refugee \u201d refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By \u201c an alien otherwise in need of protection \u201d is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .","As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .","Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .","Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .","The ORG \u2019s \u201c Eligibility Guidelines for Assessing the International Protection Needs of NORP Asylum - Seekers \u201d , dated DATE states , inter alia , that since DATE the CARDINAL NORP Governorates of Dahuk , GPE and GPE have largely escaped the violence and collapse of law and order prevalent in many parts of LOC and remain relatively quiet and stable although the security situation remains tenuous and unpredictable for a number of reasons . Therefore , the ORG maintains its position thus far that claims from asylum - seekers from these CARDINAL LOC should be individually assessed based on the DATE LAW . The ORG further observes that persons originating from this area can enter the Governorate of GPE without any restrictions . Moreover , it notes that , generally , the NORP authorities will be able and willing to provide protection although certain persons , particularly those fleeing \u201c honour killings \u201d or tribal conflict ( blood feud ) , may still be reached by their persecutors if relocated within GPE .","As concerns the situation of NORP affiliated with ORG ( MNF - I ) in all of GPE , the ORG maintains its previous position that civilians employed or otherwise affiliated with ORG are at risk of being targeted by non - state actors . In areas where security has improved over DATE ) , the risks to persons affiliated with the ORG - I have diminished to some extent , but are still considerable given the continued influence of extremist groups . The risk is particularly high for persons working as interpreters for the ORG - I given their exposure and possible involvement in military activities , for example arrests , raids or interrogation of insurgent or militia members .","The position of the LAW in the above LAW has been endorsed as still being valid in their \u201c Note of FAC of the DATE ORG of ORG \u201d , dated DATE . This note further observes that GPE remains relatively stable , though assaults on journalists and political opponents have been reported .","Moreover , ORG \u201c Report DATE on GPE \u201d states , inter alia , that the GPE region remains largely unaffected by the political violence seen in other parts of GPE and that human rights conditions continues generally to improve , although many abuses are reported .","This view is shared by the \u201c DATE Report on Human Rights in GPE \u201d by ORG \/ ORG , dated DATE , which notes that the situation is generally improving in the GPE region . In their view , the security situation is stable , with very few security incidents or casualties reported ( CARDINAL reported civilian deaths in the ORG area during DATE ) . They further observe that the improved security situation , matched with the increasing openness of ORG authorities , means greater participation of civil society and NGOs in seeking solutions to the remaining human rights concerns in the region . In this respect , ORG has shown itself to be open to dialogue and to work in a largely cooperative manner with ORG in relation to human rights issues throughout the region ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83993","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF SINITSYNA v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6;Violation of P1-1","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in the town of GPE in GPE .","NORP In DATE the applicant obtained a ORG special - purpose commodity bond ( \u043e\u0431\u043b\u0438\u0433\u0430\u0446\u0438\u044f \u0433\u043e\u0441\u0443\u0434\u0430\u0440\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0433\u043e \u0446\u0435\u043b\u0435\u0432\u043e\u0433\u043e \u0431\u0435\u0441\u043f\u0440\u043e\u0446\u0435\u043d\u0442\u043d\u043e\u0433\u043e \u0437\u0430\u0439\u043c\u0430 ) . By its terms the ORG undertook to give her a NORP - made ORG passenger car .","It appears that in DATE the applicant requested the ORG to comply with its obligation , but it could not be fulfilled for want of cars .","After the change in legislation in DATE and DATE , the applicant became entitled to compensation in the amount equal to the car value , as described in the bond and determined in co - ordination with car manufacturers at the moment of redemption .","It appears that in DATE the applicant received partial compensation .","In DATE she sued the Government for the full market value of the car .","By judgment of DATE , ORG of GPE awarded her MONEY ( RUB ) against ORG . On DATE ORG of GPE upheld the judgment .","On DATE the bailiff instituted enforcement proceedings . On DATE the bailiff returned the writ of execution to the applicant . On DATE , the applicant re - submitted it to ORG . Upon the ORG 's instructions , on DATE the applicant forwarded her writ to ORG in GPE .","NORP By letter of CARDINAL DATE the ORG returned the writ to the applicant , indicating that it should be submitted to ORG . The applicant sent the writ to ORG on DATE","On DATE the Ministry informed the applicant that it would not enforce the judgment because supervisory - review proceedings had been pending .","The applicant received the monies due to her on DATE ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76343","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF DUBINSKAYA v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6-1 (access to court);Not necessary to examine issue of length;Damage - financial award;Costs and expenses partial award - domestic and Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was severely injured in a traffic accident in GPE .","On CARDINAL DATE the applicant lodged a civil action before LOC of GPE against the car driver and the car owner , the GPE branch of ORG , seeking compensation for damage . She claimed MONEY ( ORG ) as compensation for the loss of salary , for medical and travel expenses incurred as a result of the traffic accident and CARDINAL as compensation for non - pecuniary damage . A copy of the statement of claim produced to the ORG bears a stamp of ORG registry showing the registration date as CARDINAL DATE .","On DATE ORG , by an interim decision , ordered a medical examination of the applicant by a panel of experts . It put questions about the current state of the applicant \u2019s health , her previous ailments and their possible causes and an eventual need for medical assistance and care .","The interim decision of CARDINAL DATE was submitted to the GPE bureau for forensic medical examinations ( GPE \u0441\u0443\u0434\u0435\u0431\u043d\u043e-\u043c\u0435\u0434\u0438\u0446\u0438\u043d\u0441\u043a\u043e\u0439 \u044d\u043a\u0441\u043f\u0435\u0440\u0442\u0438\u0437\u044b \u043f\u0440\u0438 \u041a\u043e\u043c\u0438\u0442\u0435\u0442\u0435 \u0437\u0434\u0440\u0430\u0432\u043e\u043e\u0445\u0440\u0430\u043d\u0435\u043d\u0438\u044f \u0433\u043e\u0440\u043e\u0434\u0430 GPE , hereinafter the \u201c GPE \u201d ) .","On DATE the ORG asked ORG for the applicant \u2019s medical documents .","According to the Government , upon receipt of the ORG \u2019s request , ORG asked the applicant \u2019s lawyer Mr PERSON , a member of ORG , to produce additional medical information . No response followed . On an unspecified date ORG repeated its request . After Mr GPE had failed to respond for the second time , ORG issued an interim decision on discontinuation of the proceedings . The court returned the applicant \u2019s statement of claims with attached documents to Mr GPE .","The applicant indicated that neither she nor her lawyer had received ORG request for additional information and that they had not been notified of ORG interim decision on discontinuation of the proceedings .","In DATE the applicant complained to the president of LOC about an excessive length of the proceedings .","On DATE the ORG informed the applicant that , according to the registration log for DATE , the applicant \u2019s claim against the bank had never been registered by ORG .","NORP In DATE Mr GPE inquired of the GPE whether the expert examination ordered by the decision of CARDINAL DATE had been carried out .","NORP By letter of DATE , the ORG responded to Mr GPE that , having received no response from ORG for additional medical information , it had not carried out any examination .","On DATE the President of ORG reported to the applicant that , according to the registration logs of LOC for DATE , ORG did not have a civil case to which the applicant and the GPE branch of ORG were the parties .","The RSFSR Code on Civil Procedure of CARDINAL DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action had been lodged with the court . Civil cases were to be examined DATE after the preparation for the hearing had been completed ( LAW )","Summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case . If necessary , the parties could be summoned by a phone call or a telegram ( Article CARDINAL ) .","A court could adjourn examination of a case when an expert examination had been ordered ( LAW ) .","Article CARDINAL set out an exhaustive list of grounds for issuing an interim decision on discontinuation of the proceedings ( \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 \u043e\u0431 \u043e\u0441\u0442\u0430\u0432\u043b\u0435\u043d\u0438\u0438 \u0437\u0430\u044f\u0432\u043b\u0435\u043d\u0438\u044f \u0431\u0435\u0437 \u0440\u0430\u0441\u0441\u043c\u043e\u0442\u0440\u0435\u043d\u0438\u044f ) , that is if parties failed to make use of a preliminary non - judicial avenue of solving a dispute ; if an action was lodged by an incapacitated person or by a person lacking the authority to act ; if the parties , without valid reasons , failed to attend CARDINAL hearings ; and if the same dispute between the same parties was pending before a court .","A copy of an interim decision on discontinuation of the proceedings was to be sent to the absent party DATE upon its delivery ( LAW .","Files in civil cases concerning claims for compensation for health damage were to be kept by first - instance courts for DATE ( Item CARDINAL ( A ) ( CARDINAL ) of the List of documents of ORG , justice departments and authorities , and courts with indication of their period of keeping , approved by ORG on DATE ) .","Original decisions on discontinuation of civil proceedings must be kept permanently ( Paragraph CARDINAL of the Instruction on the procedure for keeping , selecting and archiving of court documents , approved by Order no . CARDINAL of the GPE Minister of Justice on DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91802","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2009,"docname":"CASE OF BERKOVA v. SLOVAKIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13+6-1;Damage - claim dismissed","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG in GPE restricted the applicant \u2019s legal capacity in that she was not allowed to act on her own before public authorities . The court relied on the opinion of several experts concluding that the applicant suffered from a mental disorder as a result of paranoid development of her personality . The applicant suffered from the delusion that she was being persecuted and on that ground she had made a considerable number of complaints and other submissions . The applicant \u2019s mother was appointed guardian for the purpose of the proceedings concerning the limitation of the applicant \u2019s legal capacity .","On DATE ORG in PERSON upheld the first - instance judgment , which became final on DATE .","On DATE ORG in GPE brought proceedings on its own initiative with a view to appointing a guardian for the applicant , whose legal capacity had been restricted by the above decisions . On DATE the file was transmitted to ORG in PERSON for decision on an objection to the judges of ORG .","On DATE ORG excluded the judges of ORG in GPE and transferred the case to ORG in Pre\u0161ov . The file was returned to ORG in GPE on DATE . The decision was served on the applicant on DATE . On CARDINAL DATE the file was sent to ORG in Pre\u0161ov where the case was registered under number P CARDINAL\/CARDINAL .","On DATE and CARDINAL DATE ORG asked the applicant \u2019s husband to inform it about persons who could act as the applicant \u2019s guardian . The mail was returned to the court with the explanation that the addressee was in hospital . On DATE ORG in GPE submitted information at ORG request of CARDINAL DATE .","On DATE ORG asked the applicant \u2019s mother whether she was willing to act as her daughter \u2019s guardian . The mother replied in the negative .","On DATE the court appointed a judicial secretary to act as the applicant \u2019s guardian in the proceedings in issue .","On DATE the applicant \u2019s brother refused to act as guardian .","On DATE ORG in GPE informed ORG that its employees were unable to identify a person willing to act as the applicant \u2019s guardian . On CARDINAL and DATE the applicant \u2019s sisters refused to assume that duty .","At a hearing held on DATE ORG proposed that its employee PERSON . be appointed as the applicant \u2019s guardian . That person stated that the applicant had no confidence in her . The case was adjourned and the court asked the municipality to indicate an employee of ORG who would act as the applicant \u2019s guardian . On DATE ORG again proposed that PERSON . should be charged with that responsibility . In a letter of DATE the applicant replied that she disagreed .","On DATE PERSON . informed the court that she had been unable to find any person willing to assume the duty in question . ORG decided that PERSON , a person who had represented the town of GPE at the previous hearing , should act as the guardian . Both PERSON and the applicant appealed in DATE . On DATE PERSON appeal was sent to ORG .","On DATE ORG in PERSON quashed ORG decision of DATE .","On DATE the first - instance court made CARDINAL inquiries with a view to finding a suitable person . Those inquiries were unsuccessful .","On DATE ORG decided that ORG in GPE should act as the applicant \u2019s guardian . The decision was served on the applicant , after several unsuccessful attempts , on DATE . On DATE the applicant appealed .","The file was sent to ORG in PERSON on DATE . On DATE it was transmitted to ORG in Pre\u0161ov , due to a change in the jurisdiction of the courts of appeal .","On DATE ORG in Pre\u0161ov quashed the first - instance decision on the ground that ORG lacked legal capacity and therefore could not act as the applicant \u2019s guardian .","On DATE ORG appointed ORG as the applicant \u2019s guardian in respect of all actions involving the applicant \u2019s relations with public authorities .","On DATE the applicant appealed . She also challenged the ORG judges .","DATE and DATE the file was submitted to ORG in PERSON for consultation .","On DATE the file was submitted to ORG in Pre\u0161ov for a decision on the applicant \u2019s appeal . ORG returned the file to the first - instance court with the instruction that ORG judge should first comment on the request for her exclusion and that a mistake in the decision of CARDINAL DATE should be rectified .","ORG delivered a rectified decision on DATE . The court had difficulties in serving the rectified decision on the applicant , who received it on DATE .","On DATE ORG in Pre\u0161ov upheld the decision on the appointment of a guardian and dismissed the applicant \u2019s request for the withdrawal of the first - instance court judge . The decision became final on DATE .","On DATE the GPE proposed to LOC that legal capacity should be restored to the applicant .","On DATE ORG appointed an expert with a view to assessing the applicant \u2019s health . On DATE it asked a local authority to submit a report on the applicant .","On DATE the applicant challenged the expert , alleging that drugs had been forcibly administered to her in the hospital department where the expert worked . On DATE ORG appointed a different expert , who was requested to submit an opinion within DATE .","On DATE the expert appointed by the court proposed that an expert in psychology should assist him . He also asked for an extension of the time - limit within which the opinion was to be submitted .","After they had examined the applicant as an outpatient on CARDINAL and DATE the experts submitted an opinion to ORG on DATE . It comprised CARDINAL pages . According to the opinion , the applicant had been suffering from a chronic disorder resulting in a querulous type of paranoia for DATE . She had no critical approach to the disorder and she remained persuaded that her actions were correct . The applicant understood judicial proceedings only within the frame of her mental disorder , in that she remained convinced that courts and other authorities were doing harm to her . The illness was of a lasting character and had developed in a slow and latent manner . It had advanced as compared with DATE , when the applicant \u2019s legal capacity had first been restricted . The experts did not recommend that the applicant be heard in person by a court or that judgments should be served on her , as she was unable to understand the scope of the proceedings and the judicial decisions correctly .","On DATE the ORG heard the expert appointed and the representative of the authority acting as the applicant \u2019s guardian . The latter stated that the proposal to restore full legal capacity to the applicant had been submitted as she had appeared well balanced at that time . However , officials of ORG had encountered serious difficulties with the applicant during the subsequent period . The representative confirmed that the applicant had reacted in an inappropriate manner whenever authorities had failed to act in accordance with her wishes .","ORG also heard a guardian whom it had appointed to represent the applicant in the proceedings . The guardian did not propose restoring full legal capacity to the applicant as her health had not improved .","Relying on the expert opinion ORG decided not to hear the applicant . Reference was made to LAW .","In its judgment of CARDINAL DATE ORG referred in detail to the applicant \u2019s situation and behaviour . With reference to the experts\u2019 conclusion it held that numerous abusive complaints , submissions and appeals which the applicant had made proved that her personality disorder persisted , resulting in her querulous behaviour . The court therefore decided not to restore full legal capacity to the applicant .","As the applicant \u2019s mental disorder was chronic and since it could not be expected that her health would improve , the court decided that the applicant was not to be allowed to make a fresh request for full legal capacity to be restored to her for DATE from the date of the judgment . Reference was made to LAW .","Following the explicit recommendation of the experts , ORG decided not to serve the judgment on the applicant . It became final on DATE .","On DATE ORG lodged an extraordinary appeal on points of law on the applicant \u2019s behalf , in which he contested the decision that the applicant was not entitled to make a fresh claim concerning her legal capacity for DATE . ORG objected that ORG had decided exclusively at the request of the applicant \u2019s guardian and that it had failed to decide on the applicant \u2019s requests seeking restoration of full legal capacity , which were included in the file .","ORG dismissed the appeal on points of law on DATE . It held that the first - instance court had considered all relevant facts , including the applicant \u2019s submissions .","NORP The applicant married PERSON on DATE . CARDINAL children were born to the couple , in DATE and DATE respectively . The spouses were divorced at the applicant \u2019s petition on DATE .","On DATE the applicant and PERSON remarried .","On DATE the applicant applied for a divorce before ORG .","On DATE the judge instructed ORG to wait for the outcome of the proceedings concerning the applicant \u2019s legal capacity .","On CARDINAL DATE the applicant \u2019s husband informed the court that he had agreed to a divorce .","On DATE the file was submitted to ORG in PERSON as the judges of ORG in GPE considered themselves biased . On DATE ORG decided that the case was to be dealt with by ORG in Pre\u0161ov . The file was transmitted to the latter court on DATE .","On DATE the proceedings were stayed pending the outcome of the above proceedings no . P CARDINAL concerning the appointment of a guardian . A guardian was appointed to represent the applicant in the divorce proceedings . The decision to stay the proceedings was served on that guardian on DATE .","On DATE the applicant appealed against the decision to stay the divorce proceedings . The file was transmitted to ORG of PERSON on DATE . On DATE ORG dismissed the appeal on the ground that the applicant lacked the standing to file it , as her legal capacity had been restricted on DATE .","The judge made inquiries as regards the progress of proceedings no . P CARDINAL on CARDINAL DATE , DATE , CARDINAL DATE and DATE .","DATE . On CARDINAL DATE ORG asked ORG to inform it , as the applicant \u2019s guardian , whether it was seeking determination of the applicant \u2019s petition for divorce . The court reiterated that request on DATE and CARDINAL DATE . On DATE ORG replied in the affirmative . On DATE ORG submitted further documents and information at the court \u2019s request of DATE .","On DATE ORG proposed that the divorce proceedings should be stayed pending the determination of its proposal that full legal capacity be restored to the applicant , which had been made in DATE . On DATE ORG submitted further copies of the petition for divorce , in compliance with ORG request .","On DATE ORG asked the municipality to pay the court fee .","On DATE the court sent the applicant \u2019s claim to her husband . The latter submitted his comments on DATE .","On DATE ORG asked for an exemption from the obligation to pay the court fee .","On DATE the case was assigned to a different judge .","On DATE the ORG exempted the applicant from the obligation to pay the court fee .","A hearing was held on DATE , at which the ORG granted the applicant and her husband a divorce . The judgment was sent to the parties on DATE and it became final on DATE .","On DATE the applicant claimed before ORG that property she and her husband jointly owned as spouses should be divided . The judge decided to wait for the outcome of the proceedings on the applicant \u2019s legal capacity , which were then pending before the court of appeal .","As ORG judges considered themselves biased , due to the applicant \u2019s past statements about them , the file was submitted to ORG in PERSON . On DATE ORG excluded the judges of ORG in GPE and transferred the case to ORG in Pre\u0161ov . The file was transmitted to that court on DATE .","On DATE the proceedings were stayed pending the outcome of proceedings no . P CARDINAL , relating to the appointment of a guardian for the applicant . On DATE a guardian was appointed to represent the applicant in the proceedings for division of matrimonial property .","On DATE the applicant appealed . The case was submitted to ORG in PERSON on DATE . On DATE , CARDINAL DATE and DATE ORG asked ORG in GPE and ORG for files concerning the applicant \u2019s legal capacity . ORG dismissed the applicant \u2019s appeal against the decision to stay the proceedings on DATE . The file was returned to ORG in Pre\u0161ov on DATE .","On DATE ORG asked ORG to inform it , as the applicant \u2019s guardian , whether it maintained the action . ORG reiterated that request on DATE . It warned the municipality that a fine would be imposed on it in the absence of a reply .","On DATE ORG withdrew the applicant \u2019s action on the ground that the applicant and her husband had divorced in the meantime . The applicant \u2019s claim had concerned division of property which the applicant and her husband had jointly owned during their marriage . The reason for the applicant \u2019s action no longer existed .","ORG discontinued the proceedings on DATE . The decision became final on DATE .","On DATE the applicant claimed before ORG that her husband should be obliged to contribute to her maintenance .","On DATE the judge decided to wait for the outcome of the proceedings relating to the applicant \u2019s legal capacity , which were then pending before the court of appeal .","On DATE the file was submitted to ORG in PERSON as the judges of ORG in GPE considered themselves biased . On DATE ORG decided that the case was to be dealt with by ORG in Pre\u0161ov . The file was transmitted to the latter court on DATE .","On DATE ORG in LOC asked the applicant \u2019s husband for comments on the action . It also asked the applicant to specify her claim .","DATE . On DATE , DATE and DATE and DATE and DATE ORG in LOC asked for information concerning the proceedings relating to the restriction of the applicant \u2019s legal capacity and for the relevant file .","On DATE ORG in Pre\u0161ov stayed the proceedings pending the outcome of proceedings no . P CARDINAL\/CARDINAL relating to the appointment of a guardian . It also appointed a guardian to represent the applicant in the proceedings concerning her claim for maintenance .","On DATE the applicant appealed against the decision to stay the proceedings . On DATE the court of appeal discontinued the proceedings on the appeal as the applicant lacked standing to lodge it . The file was returned to the first - instance court on DATE .","ORG in LOC asked for the file in proceedings no . P CARDINAL on CARDINAL DATE , DATE and DATE and DATE . It did not obtain that file , as the relevant case had been dealt with by different courts .","On DATE the case concerning the applicant \u2019s claim for maintenance was allocated to a different judge of the ORG . On DATE the judge was informed that file no . P CARDINAL\/CARDINAL could still not be submitted , as that case had been dealt with .","On CARDINAL DATE ORG asked the applicant \u2019s guardian , ORG , for comments on the applicant \u2019s claim . In the absence of any reply ORG reiterated the request on DATE and on CARDINAL DATE . On DATE ORG replied that it was maintaining the applicant \u2019s claim for maintenance . On DATE the municipality submitted further information at the request of ORG .","On DATE ORG asked CARDINAL different authorities for information about the situation of the applicant and her husband . It received replies during DATE .","On DATE the case was allocated to a different judge .","DATE . On DATE ORG asked ORG for information about the applicant \u2019s income in DATE .","A hearing was held on DATE . The applicant \u2019s husband did not appear . On DATE the defendant informed the court that he had been in hospital since DATE and that he would be undergoing surgery . The hearing scheduled for DATE was therefore cancelled .","On DATE the case was allocated to a different judge .","On DATE the court asked the defendant \u2019s employer for information about the income of the applicant \u2019s husband . On DATE it made an inquiry as regards the applicant \u2019s legal capacity .","ORG heard a representative of ORG on DATE . The case was adjourned as the defendant was absent .","On DATE the ORG heard the parties . It dismissed the action with reference to the situation of the applicant and that of her husband . It noted in particular that the defendant had covered all household expenses and the maintenance of their CARDINAL children at the material time . The judgment was served on the parties on DATE and DATE respectively .","On CARDINAL DATE the applicant brought an action with ORG in GPE . She challenged her employer \u2019s conclusion that she had been absent from work without authorisation for DATE and claimed compensation for lost income totalling CARDINAL NORP korunas .","On DATE ORG in GPE found that the employer had proceeded erroneously . It granted the claim for compensation in part . Both the applicant and the defendant appealed . On DATE ORG in GPE upheld the first - instance judgment . On DATE ORG quashed the lower ORG decision to dismiss a part of the applicant \u2019s claim and returned the case to ORG . The outstanding part of the proceedings concerned a claim for payment of the equivalent of CARDINAL ( ORG ) .","ORG did not proceed with the case as it was established that , in the meantime , proceedings concerning the applicant \u2019s legal capacity had been brought .","On DATE the applicant requested that ORG judges should be excluded from all her cases .","In DATE and in DATE ORG requested the file concerning the applicant \u2019s legal capacity . The ORG replied on DATE that the file had been sent to ORG in Pre\u0161ov .","On DATE the applicant \u2019s guardian informed ORG in GPE that the applicant was maintaining her request for exclusion of the judges .","In DATE and DATE ORG again requested that the file concerning the applicant \u2019s legal capacity should be submitted to it .","On DATE the case was assigned to a different judge .","ORG received the requested files concerning different cases of the applicant on DATE .","On DATE the ORG judges were invited to comment on the applicant \u2019s request for their exclusion . Later ORG in LOC excluded the judge of ORG who had dealt with the case . The case was transferred to a different chamber of ORG on DATE .","On DATE ORG noted that the parties had concluded a friendly settlement under which the defendant undertook to pay the equivalent of ORG plus default interest to the applicant . The court discontinued the proceedings in respect of that part of the action . The applicant withdrew the remaining part of her claim ( payment of the equivalent of EUR CARDINAL ) as that sum had already been paid to her .","In DATE the applicant brought an action with ORG which concerned the right to use a flat ( ORG file no . CARDINAL C CARDINAL\/CARDINAL ) . On DATE she informed the ORG that ORG had failed to proceed with the action .","On DATE the applicant and several other members of her family sued the applicant \u2019s husband on the ground that he had made vulgar statements in respect of the applicant and her relatives . The ORG decided on the action on DATE ( file no . CARDINAL C CARDINAL\/CARDINAL ) .","In DATE the applicant sued her husband , claiming compensation for non - pecuniary damage on the ground that the defendant had ill - treated her . On DATE the ORG dismissed the action .","On CARDINAL DATE the applicant claimed before ORG that she should be granted custody of her children and that their father should be ordered to pay maintenance . On DATE the applicant claimed compensation for movable property before ORG . ORG did not proceed with those claims as the applicant had not made them through the intermediary of her guardian .","In DATE FAC approved of an examination of the applicant \u2019s health in a mental hospital without her consent . The relevant decision became final on DATE ( file no . Nc\u00fa CARDINAL\/CARDINAL ) .","On DATE the applicant and several other persons claimed damages from a couple who had sold livestock to them . The applicant submitted the relevant documents to the ORG on DATE stating that the proceedings concerning that claim were still pending ( ORG file no . CARDINAL C CARDINAL\/CARDINAL ) .","On DATE the cooperative which owned the flat in which the applicant and her husband lived claimed that the tenants should be ordered to move out as they had failed to pay the rent . On DATE ORG granted the claim ( file no . CARDINAL C CARDINAL\/CARDINAL ) . The judgment became final on DATE .","On DATE the cooperative sued the applicant and her husband for a sum of money . On DATE ORG in GPE discontinued the proceedings as the plaintiff had withdrawn the action ( file no . CARDINAL C CARDINAL\/CARDINAL ) . On DATE the applicant appealed . No further information has been submitted .","NORP The applicant unsuccessfully made a number of criminal complaints against different persons including her husband and one of the judges dealing with her cases .","On DATE the applicant complained to ORG about a violation of her rights in the proceedings concerning her cases . On DATE the ORG appointed an advocate to represent the applicant . The advocate submitted a complaint in due form on DATE .","On DATE ORG declared admissible the complaint about a violation of the applicant \u2019s right to a hearing by an independent tribunal and without unjustified delays in the proceedings concerning a labour dispute which had been pending since DATE . It rejected the remaining complaints for the following reasons .","ORG rejected as having been lodged outside the statutory DATE time - limit complaints relating to ( i ) the claim for division of matrimonial property of DATE , ( ii ) the applicant \u2019s claim for maintenance of DATE and ( iii ) the proceedings concerning the placement of the applicant in a mental hospital for the purpose of examination of her health , in which the final decision had been given in DATE .","ORG noted that ORG in GPE had failed to proceed with the applicant \u2019s claims for compensation for movable property of DATE and for custody of her children and their maintenance , lodged on DATE . It found no violation of her constitutional rights in that context , as the applicant \u2019s legal capacity had been restricted and she had not been entitled to bring judicial proceedings herself . After examination of the relevant files , ORG held that the authority appointed to act as her guardian had not failed to comply with any of its duties . In particular , the applicant \u2019s guardian had acted with due care in the divorce proceedings in DATE in the context of which both the custody and maintenance of the children and the division of marital property had been determined .","On DATE the Constitutional Court gave a decision on the merits of the admissible part of the case . It found that ORG had violated the applicant \u2019s right to a hearing without unjustified delay . It noted that the proceedings had been pending for DATE and that during the period falling within its jurisdiction ( from DATE ) there had been delays imputable to ORG totalling DATE . ORG granted the applicant CARDINAL NORP korunas ( SKK ) as just satisfaction . It ordered ORG to proceed with the case without delay and to reimburse the costs of the applicant \u2019s representation in the constitutional proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL entitles courts to restrict the legal capacity of individuals who , inter alia , are suffering from a lasting mental disorder and who are therefore capable of taking only certain legal actions . A restriction on a person \u2019s legal capacity or his or her deprivation thereof has to be cancelled or its scope modified when the underlying grounds change or fall away .","Article CARDINAL \u00a7 CARDINAL entitles courts to exempt a party from the obligation to respect a time - limit which that party has failed to respect for a justifiable reason . A request to that effect has to be made within DATE from the date the obstacle preventing the party from taking the relevant legal action has fallen away .","Under LAW , as in force at the relevant time , a person who was deprived of legal capacity could claim that it should be restored to him or her . However , where a court dismissed such a request and where it could not be expected that the condition of the person concerned would improve , courts were entitled to prevent that person from making a similar request for an appropriate period , the length of which could not exceed DATE .","With effect from DATE Article CARDINAL \u00a7 CARDINAL has been amended in that the period during which a person can be prevented from claiming restoration of his or her legal capacity was reduced to a maximum of DATE .","In a commentary on the above amendment the view was expressed that the original DATE period had been excessively long and capable of seriously affecting a person \u2019s human rights . In view of the progress of medical science , reduction of that period to a maximum of DATE was considered appropriate ( see PERSON s\u00fadny poriadok , PERSON pr\u00e1ca , spol . s r.o . , DATE , p. CARDINAL ) .","Article CARDINAL \u00a7 CARDINAL provides that a court can refrain from hearing a person whose legal capacity is to be restricted where it is not possible to hear such a person at all or where a hearing would impair that person \u2019s health .","Under LAW , courts can refrain from serving a decision concerning a person \u2019s legal capacity where its service can have a negative impact on that person because of his or her mental disorder or where the person concerned is not capable of understanding the meaning of the decision ."],"violated_articles":["13","6","8"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88878","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"STANCILL v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant 's wife died on DATE . His claim for widows ' benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows ' benefits because he was not a woman . On DATE the applicant appealed and on CARDINAL DATE reconsideration took place . The previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106178","languageisocode":"ENG","respondent":"ESP","branch":"GRANDCHAMBER","date":2011,"docname":"CASE OF PALOMO S\u00c1NCHEZ AND OTHERS v. SPAIN","importance":1,"conclusion":"No violation of Art. 10","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Fran\u00e7oise Tulkens;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Ledi Bianku;Luis L\u00f3pez Guerra;Mirjana Lazarova Trajkovska;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Peer Lorenzen","text":["The applicants live in GPE .","They were employed as delivery men by the company P. , against which they brought several sets of proceedings in employment tribunals . The applicants sought to secure recognition by the employer of their special \u201c salaried worker \u201d status , as confirmed by judgments of CARDINAL May and DATE of ORG , in order to be covered by the corresponding social - security regime . Representatives of a committee of non - salaried delivery staff in the company P. had testified against them in those proceedings .","On DATE the applicants set up the trade union ORG ( ORG ) to defend their interests and those of the other delivery staff who were under pressure from the company ORG to renounce their claim to salaried status . The applicants joined the union \u2019s executive committee . On DATE the applicants informed the company P. of the setting - up of a branch of the trade union inside the company , of its composition , and of their appointment as members of the executive committee of that workplace branch . Mr PERSON was the trade - union representative , Mr PERSON the treasurer , Mr PERSON the press and communications officer and Mr PERSON the organisation officer . No changes concerning the appointment of the union members or their duties have taken place since the union was formed .","NORP The trade union ORG published a DATE newsletter . DATE [ sic ] issue reported on the judgment of DATE of ORG no . CARDINAL , which had partly upheld the applicants\u2019 claims , ordering the company P. to pay them certain sums in respect of salaries owed to them .","On the cover of the newsletter , a cartoon with speech bubbles showed a caricature of the human resources manager , PERSON , sitting behind a desk under which a person on all fours could be seen from behind , together with , to CARDINAL side , GPE and PERSON , also employees of the company ORG and representatives of a committee of its non - salaried delivery workers , who were watching the scene while waiting to take their turn to satisfy the manager . Inside the newsletter were CARDINAL articles which vehemently denounced the fact that those CARDINAL individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer . The newsletter was distributed among the workers and displayed on the noticeboard of the trade union ORG which was located on the company \u2019s premises .","On DATE the company notified the applicants of their dismissal on grounds of serious misconduct , namely for impugning the reputations of PERSON , NORP and PERSON , under LAW and CARDINAL ( c ) of ORG , which provide for the termination of a contract of employment where an employee is guilty of serious and negligent failure to perform his or her contractual obligations .","The applicants challenged that decision before ORG no . CARDINAL , which , in a judgment of DATE , dismissed their claims and found that the dismissals were justified , in accordance with LAW and CARDINAL ( c ) of ORG . The tribunal took the view that the company \u2019s decision to dismiss the applicants had been based on a genuine and serious cause , namely the publication and display on a noticeboard inside the company of a cartoon with speech bubbles and CARDINAL articles which were offensive and impugned the dignity of the persons concerned . The first article , entitled \u201c Whose witnesses ? Theirs , of course \u201d , contained caricatures of A. and PERSON , showing them gagged by a handkerchief tied behind their heads , and the text underneath read as follows :","\u201c We knew who they were and how they behaved , but we did n\u2019t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything .","As employees of P. we earn our living by selling goods in the street . A. and PERSON earn theirs by selling the workers in the courts . Not content with doing this simply by signing agreements that go against the collective interest , they \u2019ve now gone a step further \u2013 they rob and steal with total impunity , in broad daylight , with the confidence of men who feel totally untouchable . They play at being gods .","... but they , the chairman and secretary of the staff representatives , agreed , just like guard dogs , to roll over and frolic in return for a pat on the back by their master . ... \u201d","The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before ORG no . CARDINAL , in which GPE and PERSON had appeared as witnesses against the applicants\u2019 interests and in favour of their employer .","The article entitled \u201c When you \u2019ve rented out your arse you ca n\u2019t shit when you please \u201d read as follows :","\u201c If you belong to a works council and you have to sign agreements with your employers that will never be honoured , just to keep you quiet , and agree to changes that only benefit their cronies , and to pay cuts and other sell - outs , then you \u2019ve swapped your dignity for an armchair , [ and ] you have the dubious merit of achieving the same level of infamy as politicians and policemen . You see , you shut up and you shrewdly agree to all sorts of shenanigans . When you \u2019ve rented out your arse , you ca n\u2019t shit when you please . If you \u2019re a despicable \u2018 professional trade unionist\u2019 and you \u2019ve thus sold your soul to the union , you \u2019ll never have a surge of sincerity , because your status would be threatened . You say what the union tells you to say , and as the unions are \u2018 condoms\u2019 on freedom , your lips are sealed just like your anal sphincter , because you \u2019ve rented out your arse and you ca n\u2019t shit when you please .","You can see the injustices meted out on your colleagues , the totally irrational way of dealing with their problems and the constant persecution to which they are subjected , but say nothing , for fear of drawing attention to yourself . Once upon a time , in DATE , you were a rebel who criticised the system \u2013 you would curse conventionalism and rant against the rules and regulations . You were caustic , dynamic , cutting , impulsive , jovial . But a couple of favours received have gradually cooled your fiery temperament , stoked your self - esteem and put the dampers on your feelings . From time to time you have a pang of nostalgia and you would like to fart , but your sphincter is sealed , because you \u2019ve rented out your arse and ca n\u2019t shit when you please .","You \u2019re fed up with your work , pissed off , anxious , stressed and in despair , because of the longer working TIME and the responsibilities , products , promotions and pressures . You could work anywhere , do anything without having to get up at the time others go to bed . You could break everything up , tear it to pieces , crush and demolish it all ... but your hands are tied by credits , IOUs and debts . You are crushed by your new SUV , your children \u2019s after - school activities , and DATE mortgage on your semi - detached house . And you let yourself be humiliated , you swallow your pride , you shut up and you accept , because when you \u2019ve rented out your arse , you ca n\u2019t shit when you please . \u201d","The newsletter was distributed to staff and displayed on the trade union \u2019s noticeboard on the company \u2019s LOC .","The employment tribunal observed at the outset that the cause of the dismissal was the content of the newsletter and not the applicants\u2019 trade - union membership . It referred in its judgment to the exercise of the right to freedom of expression in the context of labour relations and to the fact that it was not unlimited . It found that the limits to this right had to be interpreted in accordance with the principle of good faith , which in labour relations had to involve respect for the interests of the employer and the minimum requirements of coexistence in a professional environment . The judgment reiterated the ORG case - law to the effect that the right to respect for freedom of expression was subject to limits derived from labour relations , since the contract of employment created a series of rights and reciprocal obligations that circumscribed the exercise of the right to respect for freedom of expression . For that reason , certain manifestations of this right that might be legitimate in other contexts were not legitimate in the context of labour relations , even though the requirement to act in good faith did not always imply a duty of loyalty to the point of subjecting the worker to the employer \u2019s interests .","As to the newsletter \u2019s content , the tribunal took the view that the cartoon and speech bubbles on the cover , together with the articles inside , were offensive and exceeded the limits of freedom of expression and information , impugning the honour and dignity of the human resources manager and of delivery men A. and B. , and damaging the image of the company P. Lastly , it noted that the dismissal could not be declared null and void , since it was based on serious misconduct as provided for by law , and found that the applicants\u2019 fundamental rights had not been breached .","The applicants appealed . In a judgment of DATE , ORG upheld the judgment under appeal in so far as it concerned the applicants .","The court referred , among other things , to the limits imposed by the principle of good faith between parties to a contract of employment and to the necessary balance that judicial decisions had to strike between a worker \u2019s obligations under the contract and his freedom of expression . The balancing exercise had to enable it to be determined whether or not the reaction of the company that dismissed the employee was legitimate . For the court , the publication of the offending drawing and articles had clearly been harmful to the dignity of the persons concerned and had overstepped the limits of admissible criticism , as the exercise of freedom of expression did not justify the use of insulting , offensive or vexatious expressions that went beyond the legitimate exercise of the right to criticise and clearly impugned the respectability of the persons concerned . The company P. had , moreover , duly shown that the ORG dismissal was not a measure of reprisal or punishment , but was based on a genuine , serious and sufficient cause for deciding to terminate their contracts of employment .","The applicants lodged an appeal on points of law , seeking harmonisation of the relevant case - law . In a decision of DATE , ORG dismissed their appeal on the ground that the decision produced for purposes of comparison , namely a judgment of ORG of GPE of DATE , was not pertinent .","Relying on DATE ( right to a fair hearing ) of LAW , and on LAW and CARDINAL taken together ( freedom of expression and association ) , the applicants lodged an amparo appeal with ORG . In a decision of DATE , served on DATE , ORG found the appeal inadmissible for lack of constitutional content . The decision reads as follows :","\u201c ... Firstly ... there is not enough evidence to show that the [ appellants\u2019 ] dismissal was an act of reprisal on the part of the respondent company because of the judicial proceedings they had brought against it to assert their rights ... Secondly , as to the [ alleged ] interference with trade - union freedom guaranteed by LAW ( this complaint incorporating the ORG complaint under LAW in so far as they alleged discrimination on trade - union grounds ) , this is inadmissible as [ the appellants ] have not provided sufficient evidence to show that the company \u2019s action was intended to restrict , hamper or prevent the exercise of their right to freedom of association , on account of their union membership or activities in a trade union . In line with what this court has repeatedly said , such evidence does not consist of a mere allegation of a constitutional violation but must be sufficient for it to be inferred that the violation could have been constituted ... which is not the case here , since the circumstances alleged do not give rise to any suspicion as to the potential violation in question . In their allegations , the appellants have simply expressed their disagreement with the decisions rendered by the courts below , which found in decisions giving reasons and not being manifestly unreasonable that they had committed the acts of which the company had accused them in their letters of dismissal .","Thirdly , there has not been a breach of LAW taken together with LAW ( a ) , in the form of an infringement of the appellants\u2019 right to freedom of expression in the context of their union activity , since this fundamental right does not encompass any right to insult others . As the Court held recently in judgment no . PERSON of DATE ( legal ground CARDINAL ) , reiterating its case - law , although the LAW does not prohibit the use of hurtful , embarrassing or vituperative expressions in every circumstance , the constitutional or lack of veracity , are offensive or defamatory and are not pertinent for the purpose of conveying the opinions or information in question . The application of that jurisprudence to the present case leads the ORG to the conclusion that the appellants\u2019 right to freedom of expression has not been infringed , since they used that right in an excessive manner by means of value judgments expressed through cartoons and comments that were offensive and humiliating for the persons concerned and impugned their honour and reputation . [ Those cartoons and comments ] were not necessary for others to form an opinion about the facts of which the appellants wished to complain , and were therefore gratuitous and not necessary for the exercise of freedom of expression in a trade - union context . \u201d","The relevant provisions of the Spanish Constitution read as follows :","\u201c CARDINAL . The following rights shall be recognised and protected :","( a ) the right freely to express and disseminate thoughts , ideas and opinions orally , in writing or by any other means of reproduction ;","...","( d ) the right to receive and communicate true information by any means of dissemination . ...","The exercise of these rights may not be restricted by any prior censorship .","...","These freedoms shall be limited by respect for the rights secured in this Part , by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one \u2019s likeness and to the protection of youth and children . \u201d","\u201c CARDINAL . Everyone shall have the right to associate freely ... Freedom of association shall include the right to form trade unions or to join a trade union of one \u2019s choosing , and the right for trade unions to establish confederations and to set up or join international trade - union organisations . No one shall be obliged to join a trade union .","... \u201d","\u201c CARDINAL . NORP The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations .","ORG - compliance with contractual obligations shall include :","...","( c ) Verbal or physical attacks on the employer or persons working in the company , or members of their families living with them . \u201d","\u201c ...","Justified dismissal shall entail the termination of the contract without any right of compensation ... \u201d","On DATE the General Conference of the International Labour Organization ( ILO ) adopted Recommendation No . CARDINAL concerning ORG representatives , point CARDINAL of which reads as follows :","\u201c CARDINAL . NORP Workers\u2019 representatives acting on behalf of a trade union should be authorised to post trade - union notices on the premises of the undertaking in a place or places agreed on with the management and to which the workers have easy access .","NORP The management should permit workers\u2019 representatives acting on behalf of a trade union to distribute news sheets , pamphlets , publications and other documents of the union among the workers of the undertaking .","NORP The union notices and documents referred to in this paragraph should relate to normal trade - union activities and their posting and distribution should not prejudice the orderly operation and tidiness of the undertaking . \u201d","At its CARDINAL session in DATE , ORG adopted a ORG concerning trade - union rights and their relation to civil liberties . The Conference explicitly listed the fundamental rights essential for the exercise of freedom of association , in particular : ( a ) the right to freedom and security of person and freedom from arbitrary arrest and detention ; ( b ) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek , receive and impart information and ideas through any media and regardless of frontiers ; ( c ) freedom of assembly ; ( d ) the right to a fair trial by an independent and impartial tribunal ; and ( e ) the right to protection of the property of trade unions .","In DATE the ORG published a report entitled \u201c ORG Trade - Union Rights and Civil Liberties \u201d . The relevant passages of that report read as follows :","\u201c Part I. Freedom of association and protection of the right to organise","LAW . Trade - union rights and civil liberties","Introduction","...","The Declaration of GPE ... officially acknowledged the relationship between civil liberties and trade - union rights by proclaiming in Article GPE ) that freedom of expression and of association are essential to sustained progress and referring in LAW to the fundamental rights which are an inseparable part of human dignity . Since then , this relationship has been repeatedly affirmed and highlighted , both by the ORG \u2019s supervisory bodies and in LAW adopted by ORG .","...","The information available , in particular on the nature of the complaints submitted to ORG , shows that the main difficulties encountered by trade - union organisations and their leaders and members relate to basic rights , in particular to the right to security of the person , freedom of assembly , freedom of opinion and expression , as well as the right to protection of trade - union property and LOC . ...","...","Freedom of opinion and expression","Another essential aspect of trade - union rights is the right to express opinions through the press or otherwise . The full exercise of trade - union rights calls for a free flow of information , opinions and ideas , and workers , employers and their organisations should enjoy freedom of opinion and expression at their meetings , in their publications , and in the course of their other activities . In cases in which the issue of a trade - union publication is subject to the granting of a licence , mandatory licensing should not be subject to the mere discretion of licensing authorities , nor should it be used as a means of imposing prior restraint on the subject matter of publications ; in addition any application for such a licence should be dealt with promptly . ... Measures of administrative control \u2013 for example , the withdrawal of a licence granted to a trade - union newspaper , the control of printing plants and equipment , or the control of paper supply DATE should be subject to prompt and independent judicial review .","An important aspect of freedom of expression is the freedom of speech of delegates of workers\u2019 and ORG organisations meetings , conferences and reunions , and in particular to the International Labour Conference . ...","...","State of emergency","...","The ORG considers that the guarantees set out in the international labour LAW , in particular those relating to freedom of association , can only be effective if the civil and political rights enshrined in LAW and other international instruments , notably LAW , are genuinely recognised and protected . These intangible and universal principles , the importance of which the ORG wishes to emphasise particularly on the occasion of the CARDINALth anniversary of the creation of the ORG and the CARDINALth anniversary of the Declaration of Philadelphia , should constitute the common ideal to which all peoples and all nations aspire . \u201d","The fifth edition ( revised ) of ORG and Principles of ORG , published in DATE , contains a summary of the principles formulated by that ORG in the context of individual or collective complaints concerning alleged violations of trade - union rights . The general principles concerning freedom of opinion and expression include the following :","\u201c CARDINAL . The full exercise of trade - union rights calls for a free flow of information , opinions and ideas , and to this end workers , employers and their organisations should enjoy freedom of opinion and expression at their meetings , in their publications and in the course of other trade - union activities . Nevertheless , in expressing their opinions , trade - union organisations should respect the limits of propriety and refrain from the use of insulting language . ( See the DATE Digest , para . CARDINAL ; ORG , Case No . CARDINAL , para . CARDINAL ; ORG , ORG . DATE , para . CARDINAL ; ORG , ORG . DATE , para . CARDINAL ; ORG , Case No . DATE , para . CARDINAL ; and ORG , ORG . CARDINAL , para . CARDINAL . )","The right to express opinions through the press or otherwise is an essential aspect of trade - union rights . ( See the DATE Digest , para . CARDINAL ; ORG , Case No . DATE , para . CARDINAL ; ORG , ORG . CARDINAL , para . CARDINAL ; ORG , Case No . CARDINAL , para . CARDINAL ; ORG , Case No . CARDINAL , para . CARDINAL ; ORG , ORG . DATE , para . CARDINAL ; ORG , ORG , para . CARDINAL ; and ORG , Case No . CARDINAL , para . CARDINAL . )","The right to express opinions without previous authorisation through the press is one of the essential elements of the rights of occupational organisations . ( See the DATE Digest , para . CARDINAL . )","NORP The freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticise the government \u2019s economic and social policy . ( See the CARDINAL Digest , para . CARDINAL . )","...","The prohibition of the placing of posters stating the point of view of a central trade - union organisation is an unacceptable restriction on trade - union activities . ( See the DATE Digest , para . CARDINAL . )","...","NORP The publication and distribution of news and information of general or special interest to trade unions and their members constitutes a legitimate trade - union activity and the application of measures designed to control publication and means of information may involve serious interference by administrative authorities with this activity . In such cases , the exercise of administrative authority should be subject to judicial review at the earliest possible moment . ( See the CARDINAL Digest , para . CARDINAL ; ORG , Case No . DATE , para . CARDINAL ; and ORG , Case No . DATE , para . CARDINAL . )","...","While the imposition of general censorship is primarily a matter that relates to civil liberties rather than to trade - union rights , the censorship of the press during an industrial dispute may have a direct effect on the conduct of the dispute and may prejudice the parties by not allowing the true facts surrounding the dispute to become known . ( See the DATE Digest , para . CARDINAL . )","When issuing their publications , trade - union organisations should have regard , in the interests of the development of the trade - union movement , to the principles enunciated by ORG at its CARDINAL session ( DATE ) for the protection of the freedom and independence of the trade - union movement and the safeguarding of its fundamental task , which is to ensure the social and economic well - being of all workers . ( See the DATE Digest , para . CARDINAL . )","In a case in which a trade - union newspaper , in its allusions and accusations against the government , seemed to have exceeded the admissible limits of controversy , the ORG pointed out that trade - union publications should refrain from extravagance of language . The primary role of publications of this type should be to deal with matters essentially relating to the defence and furtherance of the interests of the ORG members in particular and with labour questions in general . ORG , nevertheless , recognised that it is difficult to draw a clear distinction between what is political and what is strictly trade union in character . It pointed out that these CARDINAL notions overlap , and it is inevitable and sometimes normal for trade - union publications to take a stand on questions having political aspects , as well as on strictly economic or social questions . ( See the CARDINAL Digest , para . CARDINAL . ) \u201d","The American Convention on Human Rights has a special Additional Protocol concerning economic , social and cultural rights , the \u201c Protocol of GPE \u201d . Adopted and opened for signature on CARDINAL DATE , it entered into force on DATE . Article CARDINAL of that LAW , entitled \u201c Trade - union rights \u201d reads as follows :","\u201c CARDINAL . The GPE Parties shall ensure :","( a ) The right of workers to organise trade unions and to join the union of their choice for the purpose of protecting and promoting their interests . As an extension of that right , the GPE Parties shall permit trade unions to establish national federations or confederations , or to affiliate with those that already exist , as well as to form international trade - union organisations and to affiliate with that of their choice . The GPE Parties shall also permit trade unions , federations and confederations to function freely ;","( b ) The right to strike .","The exercise of the rights set forth above may be subject only to restrictions established by law , provided that such restrictions are characteristic of a NORP society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others . Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law .","No one may be compelled to belong to a trade union . \u201d","In its ORG OC-CARDINAL\/CARDINAL , ORG emphasised the fundamental nature of freedom of expression for the existence of a democratic society , stressing among other things that freedom of expression was a sine qua non for the development of trade unions . It found as follows ( paragraph CARDINAL of the Opinion ) :","\u201c Freedom of expression is a cornerstone upon which the very existence of a NORP society rests . It is indispensable for the formation of public opinion . It is also a conditio sine qua non for the development of political parties , trade unions , scientific and cultural societies and , in general , those who wish to influence the public . It represents , in short , the means that enable the community , when exercising its options , to be sufficiently informed . Consequently , it can be said that a society that is not well informed is not a society that is truly free . \u201d","Comparative - law research has shown that the disciplinary powers of employers in the member ORG are very diverse . There is a convergence of legal systems among the CARDINAL countries examined : they all provide for and organise employees\u2019 freedom of expression and trade - union freedom , usually by means of norms of constitutional value , or , where that is not the case , by legislative regulations . Employees serving as representatives benefit from special protection to help them discharge their duties . The regulations in all countries , in order to reconcile the exercise of this right with the essential rights and freedoms of others , fix rules providing for penalties in cases of abuse of the right to freedom of expression . The powers vested in employers allow , if necessary , for the exercise of disciplinary action against an employee or staff member whose conduct can be characterised as improper exercise of his freedom of expression . The case - law in such matters is consistent and shows that there is a systematic examination of proportionality between the dismissal and the conduct on which it is based .","The domestic - law instruments provide for the punishment of any conduct by an employee that is capable of infringing the rights and freedoms of others .","The relevant rules may , firstly , be laid down by LAW , or by provisions concerning the possibility of bringing an action to establish liability . In most cases , criminal notions such as defamation , damage to honour or reputation , or insults will enable the person claiming to be a victim of such infringement to bring proceedings to establish the liability of the person who made the comments at issue .","Rules in ORG or norms applicable to public servants will also govern the exercise of freedom of expression of staff members , and if necessary provide for the punishment of any abuse . Similar limitations may be imposed on public officials , whether or not they have \u201c civil servant \u201d status .","Disciplinary authority is CARDINAL of the essential prerogatives of the employer , whether private or public . In this connection , employers have a broad discretion to impose the sanction that they consider the best adapted to the accusations against the employee ; the scale of possible sanctions encompasses the power to dismiss a person who has seriously compromised the interests of the company or the public service . In parallel , this power of dismissal is accompanied by a prohibition on dismissing employees on grounds relating to trade - union activity . A measure of dismissal may be based on misconduct or on a legitimate ground . In the first case , it relates to DATE identified \u2013 form of conduct . In the second , the conduct is considered in general terms .","The proportionality of a measure of dismissal in relation to the conduct of the employee concerned underlies all the legislation analysed .","The applicable law in the GPE examined shows that any abuse of the freedom of expression afforded to employees or public servants is always regarded as a reprehensible fact capable of justifying disciplinary measures that could go as far as dismissal . For that purpose , factual elements of an objective nature are taken into account , such as : ( i ) the seriousness of the misconduct ; and ( ii ) the characterisation of the comments , the extent of their publication , and also certain subjective elements . The latter include the personal situation of the employee , any abuse of freedom of expression and the question whether the conduct falls outside \u201c normal \u201d trade - union activity .","In all the countries studied , the general rules are clear and allow the employee \u2019s right to freedom of expression to be balanced against the rights and prerogatives of the employer . Their implementation is more problematic , since a restriction on a fundamental right can only be accepted if , having regard to the measure decided , it is proportionate to the aim pursued . Only through a case - by - case approach is it possible to grasp the substance of the jurisprudential solution adopted in each type of situation ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67990","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2005,"docname":"CASE OF POPOV v. MOLDOVA (No. 1)","importance":3,"conclusion":"Preliminary objections dismissed (non-exhaustion of domestic remedies, abuse of the right of petition);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Inadmissible under Art. 3;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","In DATE the NORP authorities nationalised the house owned by his parents . In DATE his family was deported to GPE and to GPE .","On DATE the ORG enacted Law No . CARDINAL \u201c on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime \u201d . The PERSON enabled the victims of the NORP repression to claim restitution of their confiscated or nationalised property .","In DATE the applicant lodged an action with ORG ( FAC ) by which he sought the restitution of his parents ' house . As the former tenants of the house had purchased it from the ORG , the applicant sought a judicial ruling declaring the purchase contracts null and void . He also requested the eviction of all the occupants of the house .","On DATE ORG found in favour of the applicant and ordered the restitution of the house . It declared null and void the contracts by which the house had been sold to the tenants . The court further ordered ORG to evict all the occupants , and indicated that ORG was to provide them with alternative accommodation .","ORG , ORG and the occupants lodged an appeal with ORG ( PERSON ) against the judgment of ORG . On DATE ORG dismissed the appeal and upheld the judgment with some textual amendments . Since nobody lodged an appeal in cassation , the judgment of DATE became final .","In DATE , DATE and DATE the bailiff assigned to the case brought proceedings against ORG for failure to comply with the judgment of CARDINAL DATE along with CARDINAL similar judgments .","On DATE ORG issued a decision by which a fine of CARDINAL NORP lei ( MDL ) ( the equivalent of EUR CARDINAL.CARDINAL at the time ) was imposed on the Head of ORG for failure to comply with the judgments .","On DATE the same court issued a decision by which it imposed a fine of MDL CARDINAL ( the equivalent of ORG CARDINAL at the time ) on ORG . The court found inter alia that the shortage of funds and the lack of available apartments could not be relied upon by ORG to justify the failure to comply with the above judgments .","ORG lodged an appeal against that decision and on DATE the ORG quashed it on the ground that the shortage of funds and the lack of available apartments had objectively impeded ORG from complying with the judgments .","On DATE ORG issued a decision by which it imposed a fine of MDL CARDINAL on ORG .","DATE the applicant lodged numerous complaints about the non - enforcement of the judgment of DATE with ORG , ORG and ORG . In their replies , ORG and ORG informed the applicant that due to the lack of funds for the construction of apartment buildings and due to the lack of available alternative accommodation for the evicted persons , the judgment of DATE could not be complied with .","NORP In DATE CARDINAL occupants of the applicant 's house lodged with ORG a request for revision of the judgments of DATE and DATE . Relying on Article CARDINAL of the new Code of Civil Procedure ( see paragraph CARDINAL below ) they argued in their request that new information have become known to them . They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from ORG in DATE .","On DATE the Court of Appeal found in favour of the occupants , quashed the judgments of DATE and DATE and ordered the re - opening of the proceedings in the light of the newly discovered facts . The court also decided to extend the time limit for lodging the request .","The new facts relied upon by ORG in its judgment were an issue of ORG , and a few certificates from ORG and from ORG dated DATE and DATE . According to these documents , due to a change of numbers of the houses on the street , it was unclear whether the house provided for in the final judgments or another house belonged to the applicant 's family . ORG did not specify in its judgment whether LAW had a retroactive effect ; nor were reasons given for extending the time limit for the lodging of the revision request .","The relevant provisions of PERSON no . CARDINAL-XII of DATE , as amended on DATE , read as follows :","\u201c LAW . Restitution of property to persons subjected to repression","( CARDINAL ) Any citizen of GPE who has been subjected to political repression and subsequently rehabilitated , shall have returned to him , at his request or at the request of his heirs , any property which was confiscated , nationalised or taken away from him in some other way . ...","( CARDINAL ) Any deed of sale and purchase or other form of transfer of a house , building or other construction or goods that have been confiscated , nationalised or taken away from a person who has been a victim of repression may , when made after his rehabilitation , be declared null and void by the courts on an application by the victim or his heirs . \u201d","In DATE a new paragraph was added to the above Article by virtue of LAW . CARDINAL of DATE , which reads as follows :","\u201c ( CARDINAL ) NORP person evicted from a house that is the subject of a restitution order shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities , in accordance with the legislation . \u201d","Article CARDINAL of LAW , in force DATE and DATE \u201c the old Code of Civil Procedure \u201d , reads as follows :","Final judgments ... can be revised in the following cases :","CARDINAL ) NORP the discovery of new facts or circumstances , that were unknown and could not be known earlier by the parties to the proceedings ;","Article CARDINAL , insofar as relevant , reads as follows :","\u201c The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against any action which the bailiff takes or refuses to take in the enforcement proceedings . ... \u201d","Article CARDINAL of LAW , in force DATE and DATE \u201c the old Civil Code \u201d , reads as follows :","\u201c Full redress shall be provided by the ORG in the manner prescribed by law for damage caused to a natural or juristic person by the illegal action of the criminal - investigation organs , the prosecution service or the courts , regardless of whether a public servant from CARDINAL of those bodies has been at fault . \u201d","According to ORG a GPE ) for DATE ( page CARDINAL ) , Article CARDINAL of the old Civil Code , along with other relevant provisions of the Moldovan Law , was applicable in the following situations :","illegal detention , illegal arrest , illegal indictment , illegal conviction ;","illegal search , seizure or distraint of goods within criminal proceedings ;","illegal administrative arrest , illegal fining ;","illegal operative investigative measures ;","illegal seizure of accounting documents , money , stamps , blocking of accounts .","On DATE a new Civil Code entered into force . Article CARDINAL of the new Civil Code reads as follows :","\u201c ( CARDINAL ) Damage caused by an unlawful administrative decision or as a result of a failure by a public authority or public official to act upon a request made within the statutory time - limit shall be made good by the public authority ....","( CARDINAL ) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph CARDINAL of the present Article . ( ... ) \u201d","On DATE a new Code of Civil Procedure entered into force . Article CARDINAL , insofar as relevant , reads as follows :","Grounds for revision","Revision may be requested :","c ) When new and essential facts or circumstances have been discovered , that were unknown and could not be known earlier ;","Article CARDINAL , in so far as relevant , reads as follows :","A revision request may be lodged :","c ) within DATE from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him \/ her earlier and which could not have been known to him \/ her earlier ...."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101469","languageisocode":"ENG","respondent":"LVA","branch":"CHAMBER","date":2010,"docname":"CASE OF MARINA v. LATVIA","importance":3,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in R\u012bga .","From an unspecified date , the applicant , together with her partner PERSON , made use of a plot of land in PERSON parish . The rights to use the land were allocated to the latter by a decision of LOC . The property consisted of a dwelling house with an extension , greenhouses and a garden . After the death of the applicant 's partner in DATE and the applicant 's subsequent eviction from an apartment in ORG , she continued to reside in the property in PERSON parish and to gain an income by selling the products cultivated there .","In DATE the applicant found out that the dwelling house , greenhouses and the garden had been destroyed . She requested that criminal proceedings be instituted against the alleged perpetrator , PERSON , who did not contest the allegations .","On DATE , having examined the applicant 's complaints , the police officer of ORG refused to institute criminal proceedings on the grounds that the rights to use the aforementioned property had passed to PERSON ( the son of the late V.M. ) and no complaints whatsoever had been received from him regarding the alleged destruction of the property .","From DATE onwards the applicant has been repeatedly considered as a \u201c low - income person \u201d ( maznodro\u0161in\u0101ta persona ) , as the amount of her old - age retirement benefit did not exceed PERCENT of the established minimum monthly salary in GPE . From DATE to the present day the applicant has been renting an apartment in a social building where the DATE utilities charges have averaged ORG ( EUR CARDINAL ) in DATE and , around ORG CARDINAL ( EUR CARDINAL ) in DATE . Apart from receiving an old - age retirement pension in the amount of ORG ( LAW ) ( the amount at the material time ) , in DATE and DATE , at the time of bringing the civil proceedings the applicant was also in receipt of the following municipality assistance : a housing allowance averaging ORG ( EUR CARDINAL ) per month ; CARDINAL lump - sum payments together totalling ORG CARDINAL ( ORG CARDINAL ) assigned to cover housing and utilities expenses ; health insurance in the amount of FAC ( FAC ) and a lump sum in the amount of ORG EUR CARDINAL ) to improve the condition of her health .","On DATE the applicant lodged a claim for damages against P. in the amount of ORG CARDINAL ( ORG ) and asked the court for exemption from the court fee ( also referred to as a ORG fee ) in the amount of ORG ( ORG CARDINAL ) owing to her poor financial situation . In support of her application , the applicant attached thereto a certificate confirming her low - income status .","On DATE , by a decision of ORG , the applicant 's claim for damages was dismissed on the grounds that she had failed to demonstrate that she had the right to use the aforementioned property .","On DATE , on the applicant 's appeal , ORG of ORG revoked the above decision and forwarded the matter for examination once again , finding that :","\u201c The Civil Law grants to everyone a right to claim damages . [ I]n a situation where damage has been inflicted , everyone is entitled to come before a court in order to protect their infringed rights . [ Thus ] , the applicant has a right to claim damages , and this should not be linked to her rights to [ ... ] use the [ property ] \u201d .","On DATE ORG partly upheld the applicant 's request and reduced the amount of the court fee to ORG CARDINAL ( ORG CARDINAL ) .","On DATE ORG of ORG dismissed the applicant 's ancillary complaint whereby she requested a further reduction in the court fee . The court noted that the claim concerned material damages and that there was no ground for a further reduction . It noted inter alia :","\u201c Pursuant to section CARDINAL \u00a7 CARDINAL of ORG the applicant can ask to postpone payment of the court costs allocated to ORG revenue , or divide payment thereof into instalments . \u201d","Subsequently the applicant asked for postponement of payment of the fee until the court adopted a decision concerning her claim . On DATE ORG dismissed the applicant 's request , noting :","\u201c Section CARDINAL \u00a7 CARDINAL of ORG authorises the court to postpone or divide into instalments only those court costs which had been allocated to ORG revenues , [ and it does not authorise ] the postponement of [ the paying of ] ORG fees at the time of lodging a claim \u201d .","On DATE ORG of ORG dismissed the applicant 's complaint and upheld the lower court 's decision .","On DATE the applicant lodged an identical claim for damages and asked to be exempted from payment of the court fee . She argued that her financial situation was poor , that her property had been destroyed , and her only income was an old - age pension .","On DATE , ORG partly upheld the applicant 's request and again reduced the fee to ORG CARDINAL ( ORG CARDINAL ) , taking account of the reasoning underpinning the decision adopted on DATE by ORG in identical circumstances .","In an ancillary complaint , the applicant appealed against the partial reduction of the court fee and explained that her DATE old - age pension was about LVL CARDINAL.CARDINAL ( EUR CARDINAL ) , from which she had to clear the rent and utilities arrears for the apartment she had been evicted from .","On DATE ORG of ORG , in a final decision , upheld the decision of the lower court , noting that there were no grounds for a further reduction of the ORG fee or complete exemption . It stated inter alia that :","\u201c Pursuant to section CARDINAL \u00a7 CARDINAL of ORG the applicant can ask to postpone payment of court costs as allocated to ORG revenues , or divide payment thereof into instalments . \u201d","The court subsequently set a time - limit of CARDINAL DATE by which the applicant was obliged to rectify the deficiencies of her claim , i.e. add proof of payment of the court fee .","According to the Government , the decision was served on the applicant not DATE . According to the applicant , she received the above decision on DATE .","Section CARDINAL Costs of adjudication :","Section CARDINAL State ( court ) fees :","( CARDINAL ) For each statement of claim \u2013 original claims or counterclaims , applications of a third person statement of claim with an independent claim regarding the subject - matter of the dispute , submitted in a procedure which has already commenced , applications in special adjudication procedure matters , and other claims applications provided for in this Section submitted to the court DATE a ORG fee shall be paid in the amount set out as follows :","Section CARDINAL Exceptions from general provisions regarding court costs :","( CARDINAL ) A court or a judge , upon considering the material situation of a natural person , shall exempt him or her partly or fully from the payment of court costs into ORG revenues , as well as postpone payment of court costs allocated to ORG revenues , or divide payment thereof into instalments .","Section CARDINAL provides that in a situation where court documents are sent by post , it ought to be assumed that a document will reach the recipient within DATE following DATE on which it was posted .","Section CARDINAL \u00a7 CARDINAL provides that when a civil claim has not been allowed , the applicant bringing the claim is not prevented from repeatedly submitting an identical claim in compliance with the general procedures prescribed in this PERSON .","According to paragraph CARDINAL . , a \u201c low - income status \u201d is , inter alia , that granted to an individual who receives an old - age pension , resides alone , and whose DATE income does not exceed PERCENT of the minimum salary as prescribed by law . Besides , in order to be granted low - income status , the person has to prove that she or he does not own a property that could be used to generate income and that she or he has no debts and is not owed money ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69529","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2005,"docname":"CASE OF HERMI v. ITALY","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and is currently in FAC .","On DATE the applicant was discovered in possession of a package containing QUANTITY of heroin and was arrested by the GPE carabinieri . Proceedings were instituted against him for drug trafficking . On DATE the applicant appointed a lawyer of his own choosing , PERSON , who represented him throughout the proceedings .","The applicant subsequently requested , through the intermediary of his lawyer , adoption of the summary procedure ( giudizio abbreviato ) provided for in ORG CARDINAL to CARDINAL of LAW ( \u201c the ORG \u201d ) . The representative of ORG gave a favourable opinion . The GPE preliminary hearings judge , taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage ( allo stato degli atti ) ordered that the summary procedure be adopted .","At the private hearing held on DATE in the presence of the applicant , the latter , through the intermediary of his lawyer , pleaded not guilty on the ground that the drugs had been intended for his personal use and not for sale .","NORP In a judgment of DATE the GPE preliminary hearings judge sentenced the applicant to CARDINAL years\u2019 imprisonment and a fine of MONEY ( MONEY ) . He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs . At the time of his arrest , the applicant had just purchased a quantity corresponding to CARDINAL average DATE doses .","The applicant appealed against the judgment , reiterating the arguments adduced at first instance . He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the LAW .","On DATE Mr M. was informed that the hearing had been set down for DATE . On DATE Mr M. objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room . ORG dismissed his request , observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings .","In a judgment of DATE ORG upheld the judgment at first instance .","The applicant appealed on points of law . He alleged that the appeal judges had not allowed him to attend his trial and that the summons to appear at the appeal hearing had not been translated into LANGUAGE .","In his final submissions , the public prosecutor requested that the impugned decision be set aside .","In a judgment of DATE ORG dismissed the applicant \u2019s appeal . It observed that neither the Convention nor the ORG required the steps in the proceedings to be translated into the language of a non - national defendant in GPE . However , the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings . As to the other complaints , ORG observed that the presence of the defendant was not required under the summary procedure , the adoption of which had been requested by the applicant himself of his own free will . Furthermore , the applicant had not made clear his wish to participate in the appeal hearing .","The summary procedure is governed by ORG CARDINAL to CARDINAL of the ORG .","NORP Under the terms of these provisions as they applied at the time when the applicant was arrested , the defendant could request , subject to a favourable opinion from the representative of ORG , that the case be decided at the preliminary hearing . If the judge deemed that the charges could be determined on the basis of the steps performed at the preliminary investigation stage and recorded in the file held by ORG ( fascicolo del pubblico ministero ) , he ordered the summary procedure to be adopted . The summary procedure was subsequently amended by PERSON no . CARDINAL of DATE . Under the new rules , a favourable opinion from the representative of ORG is no longer required , and the judge can not reject the request for the summary procedure to be adopted if the defendant does not request that any evidence be produced ( integrazione probatoria ) .","Where the summary procedure is adopted , the hearing takes place in private and is devoted to hearing the arguments of the parties , which must be based on the documents contained in the file held by ORG . If the judge decides to convict the defendant , the sentence is reduced by onethird ( LAW ) . The judgment is delivered in private .","Under the terms of LAW ORG :","\u201c The appeal judge shall be empowered to rule ( la congnizione del procedimento ) solely ( limitatamente ) on those aspects of the decision referred to in the grounds of appeal . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91521","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2009,"docname":"BELKIN AND OTHERS v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicants are CARDINAL NORP nationals , whose names and dates of birth are shown in the ORG . ORG ( \u201c the Government \u201d ) are represented by PERSON , First Deputy Minister of ORG , and Mr PERSON GPE , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants are victims of the GPE nuclear disaster who live in GPE of GPE . Under domestic law they were entitled to social benefits . Because the authorities had failed to pay the benefits in full or in time , the applicants sought relief in courts of GPE . The courts held for the applicants , the judgments became binding , but their full enforcement was delayed . Details of the judgments are shown in the Annex ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60690","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2002,"docname":"CASE OF AGGA v. GREECE (No. 2)","importance":3,"conclusion":"Violation of Art. 9;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient","judges":"Fran\u00e7oise Tulkens","text":["The applicant was born in DATE and lives in Xanthi .","In DATE CARDINAL of the CARDINAL NORP religious leaders of LOC , ORG , died . On DATE the local Prefect ( \u039d\u03bf\u03bc\u03ac\u03c1\u03c7\u03b7\u03c2 ) appointed the applicant to act as a deputy ( \u03c4\u03bf\u03c0\u03bf\u03c4\u03b7\u03c1\u03b7\u03c4\u03ae\u03c2 ) .","In DATE the CARDINAL independent NORP Members of ORG and PERSON requested the ORG to organise elections for the post of ORG . Having received no reply , the CARDINAL independent MPs decided to organise themselves elections at the FAC on DATE after the prayers . On that date the applicant was chosen to be ORG by those attending DATE prayers at the FAC .","On DATE the President of the Republic , on the proposal of ORG and under LAW , adopted LAW ( \u03c0\u03c1\u03ac\u03be\u03b7 \u03bd\u03bf\u03bc\u03bf\u03b8\u03b5\u03c4\u03b9\u03ba\u03bf\u03cd \u03c0\u03b5\u03c1\u03b9\u03b5\u03c7\u03bf\u03bc\u03ad\u03bd\u03bf\u03c5 ) by which the manner of election of the Muftis was changed . PERSON no . DATE retroactively validated LAW of DATE .","On DATE , in accordance with the new regulations , ORG appointed another ORG . The applicant refused to step down .","CARDINAL sets of criminal proceedings were instituted against the applicant under Articles CARDINAL and CARDINAL of LAW for having usurped the functions of a minister of a \u201c known religion \u201d . ORG , considering that there might be disturbances in Xanthi , decided , under Articles CARDINAL and CARDINAL of LAW , that the proceedings should take place in other cities . The applicant was legally represented throughout the proceedings by lawyers of his own choice . The courts heard a number of prosecution and defence witnesses .","On DATE criminal proceedings were instituted against the applicant on the ground that on DATE and DATE he had issued messages in the capacity of the mufti of Xanthi .","On DATE the single - member first instance criminal court ( PERSON ) of GPE found the applicant guilty and sentenced him to QUANTITY months\u2019 imprisonment ( decision no . CARDINAL ) . The applicant appealed ( see below paragraph CARDINAL ) .","On an unspecified date the applicant was charged for having issued messages in the capacity of the mufti of Xanthi on DATE , DATE and DATE .","On DATE the single - member first instance criminal court of GPE found the applicant guilty and sentenced him to CARDINAL months\u2019 imprisonment ( decision no . CARDINAL ) . The applicant appealed .","On DATE the CARDINAL - member first instance criminal court ( PERSON ) of GPE upheld the applicant \u2019s conviction in the first and second sets of proceedings . It imposed a global sentence of CARDINAL months\u2019 imprisonment and converted it into a fine ( decision no . CARDINAL ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .","On DATE a third set of proceedings was instituted against the applicant for the same offence on the ground that on DATE , CARDINAL DATE , CARDINAL DATE , DATE and CARDINAL DATE he had issued messages in the capacity of the mufti of Xanthi .","On DATE the single - member first instance criminal court of ORG found the applicant guilty and sentenced him to CARDINAL months\u2019 imprisonment ( decision no . CARDINAL\/CARDINAL ) . The applicant appealed .","On DATE the CARDINAL - member first instance criminal court of ORG upheld the applicant \u2019s conviction and imposed a sentence of CARDINAL months\u2019 imprisonment . The court converted this sentence into a fine ( decision no . PERSON ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of Articles CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .","On DATE a fourth set of proceedings was instituted against the applicant on the ground that on DATE he had issued a message in the capacity of the mufti of Xanthi .","On DATE the single - member first instance criminal court of ORG found the applicant guilty and imposed on him an CARDINAL months\u2019 prison sentence ( decision no . DATE ) . The applicant appealed .","On DATE the CARDINAL - member first instance criminal court of ORG upheld the applicant \u2019s conviction but reduced the prison sentence to DATE and converted it into a fine ( decision no . CARDINAL ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .","On an unspecified date a fifth set of proceedings was instituted against the applicant on the ground that on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE he had issued messages in the capacity of the mufti of Xanthi .","On DATE the single - member first instance criminal court of GPE found him guilty and sentenced him to CARDINAL months\u2019 imprisonment ( decision no . CARDINAL ) . The applicant appealed .","On DATE the CARDINAL - member first instance criminal court of GPE upheld the applicant \u2019s conviction but reduced the prison sentence to DATE and converted it into a fine ( decision no . DATE ) . The applicant appealed in cassation . He alleged that his conviction amounted to a violation of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( see below paragraph CARDINAL ) .","On DATE ORG rejected the applicant \u2019s appeals concerning the first , second , third and fourth sets of proceedings . It considered that the offence in LAW was committed \u201c when somebody appeared as a minister of a known religion and when he discharged the functions of the minister \u2019s office including any of the administrative functions pertaining thereto \u201d . The court considered that the applicant had committed this offence because he behaved and appeared as ORG . It further considered that the applicant \u2019s conviction was not contrary to Articles CARDINAL , CARDINAL and CARDINAL of the LAW , because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a ORG . As regards Article CARDINAL of the Convention , ORG considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights ( judgments FAC . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL ) .","On DATE ORG rejected the applicant \u2019s appeal concerning the fifth set of proceedings for the reasons set out in its judgments FAC . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL ( judgment no . CARDINAL\/CARDINAL ) .","CARDINAL more sets of proceedings were instituted against the applicant on the ground that on various dates he had issued messages in the capacity of the mufti of Xanthi . The applicant was found guilty by the single - member first instance criminal court of PERSON ( decisions nos . CARDINAL , DATE and DATE ) .","On DATE the CARDINAL - member first instance criminal court of PERSON acquitted the applicant in the light of the ORG \u2019s judgment in the Serif v. GPE case ( no . MONEY , ORG CARDINAL\u2013IX ) . The court held that , by addressing religious messages to a group of people who voluntarily followed him as their religious leader , the applicant had not usurped the functions of a minister of a \u201c known religion \u201d , but had simply exercised his right to manifest his religion , a right guaranteed by LAW ( decisions ORG . DATE , DATE and PERSON ) .","Article CARDINAL of LAW GPE between GPE and others , on the one hand , and GPE , on the other , which was concluded on CARDINAL DATE and ratified by ORG by a law published in ORG on DATE , provides as follows :","( original )","\u00ab GPE vie , les biens , l\u2019honneur , la religion et les coutumes de ceux des habitants des localit\u00e9s c\u00e9d\u00e9es \u00e0 la PERSON qui resteront sous l\u2019administration hell\u00e9nique seront scrupuleusement respect\u00e9s .","Ils jouiront enti\u00e8rement des m\u00eames droits civils et politiques que les sujets hell\u00e8nes d\u2019origine . GPE libert\u00e9 , la pratique ext\u00e9rieure du culte seront assur\u00e9es aux PERSON ( ... )","Aucune atteinte ne pourra \u00eatre port\u00e9e \u00e0 l\u2019autonomie et \u00e0 l\u2019organisation hi\u00e9rarchique des communaut\u00e9s musulmanes existantes ou qui pourraient se former , ni \u00e0 l\u2019administration des fonds et immeubles qui leur appartiennent ( ... )","PERSON , chacun dans sa circonscription , seront \u00e9lus par les \u00e9lecteurs musulmans ( ... )","PERSON , outre leur comp\u00e9tence sur les affaires purement religieuses et leur surveillance sur l\u2019administration des biens vacoufs , exerceront leur juridiction entre musulmans en mati\u00e8re de mariage , divorce , pensions alimentaires ( n\u00e9faca ) , tutelle , curatelle , \u00e9mancipation de mineurs , testaments islamiques et successions au poste de mut\u00e9velli ( NORP ) .","Les jugements rendus par les Muftis seront mis \u00e0 ex\u00e9cution par les autorit\u00e9s hell\u00e9niques comp\u00e9tentes .","Quant aux successions , les parties NORP int\u00e9ress\u00e9es pourront , apr\u00e8s accord pr\u00e9alable , avoir recours au mufti , en qualit\u00e9 d\u2019arbitre . ORG arbitral ainsi rendu toutes les voies de recours devant les tribunaux du pays seront admises , \u00e0 moins d\u2019une clause contraire express\u00e9ment stipul\u00e9e . ORG","On DATE GPE concluded CARDINAL treaties with the principal PERSON in S\u00e8vres . By the first treaty the ORG powers transferred to GPE all the rights and titles which they had acquired over LOC by virtue of LAW they had signed with GPE at FAC on DATE . The second treaty concerned the protection of minorities in GPE . Article CARDINAL \u00a7 CARDINAL of the second treaty provides as follows :","\u201c GPE agrees to take all necessary measures in relation to the NORP to enable questions of family law and personal status to be regulated in accordance with NORP usage . \u201d","On DATE GPE and GPE signed a treaty for the exchange of populations . On DATE GPE and others , on the one hand , and GPE , on the other , signed LAW . Articles CARDINAL and CARDINAL of this treaty give the NORP minority of GPE the same protection as LAW . On DATE GPE signed a LAW with the principal ORG bringing into force the CARDINAL treaties concluded in S\u00e8vres on DATE . ORG ratified the CARDINAL above - mentioned treaties by a law published in ORG on DATE .","In its decision no . CARDINAL ORG considered that it was obliged to apply NORP law in certain disputes between NORP by virtue of LAW DATE , LAW and LAW of DATE .","Law no . DATE provided that the Muftis , in addition to their religious functions , would have competence to adjudicate on family and inheritance disputes between NORP in so far as these disputes are governed by NORP law . It also provided that the Muftis were directly elected by the NORP who had the right to vote in the national elections and who resided in the LOC in which the Muftis would serve . The elections were to be organised by the ORG and theological school graduates had the right to be candidates . Article CARDINAL \u00a7 CARDINAL of the law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the Muftis . Such a decree was never promulgated .","Under the legislative act of CARDINAL DATE the functions and qualifications of the Muftis remain largely unchanged . However , provision is made for the appointment of the Muftis by presidential decree following a proposal by ORG who , in his turn , must consult a committee composed of the local ORG and a number of NORP dignitaries chosen by the ORG . The act expressly abrogates PERSON no . CARDINAL . In the act it is envisaged that it should be ratified by law in accordance with Article CARDINAL \u00a7 CARDINAL of the LAW .","Law no . DATE retroactively validated the legislative act of DATE .","Article QUANTITY provides as follows :","\u201c In exceptional circumstances , when an extremely urgent and unforeseeable need arises , the President of the Republic may , on the proposal of ORG , adopt legislative acts . These acts must be submitted to ORG for approval ... within DATE ... \u201d","Article CARDINAL of the Criminal Code provides as follows :","\u201c CARDINAL . A person who intentionally usurps the functions of a ORG or municipal official is punished with imprisonment DATE or a fine .","This provision also applies when a person usurps the functions of a lawyer or a minister of ORG or another known religion . \u201d","ORG has considered that this provision applies in the case of a former priest of ORG who continues to wear the priest robes ( decision no . MONEY ) . The priest in question was defrocked after he joined ORG , a religious movement formed by NORP priests who wanted the ORG to maintain the PERSON calendar . In decision no . CARDINAL ORG considered that the offence in LAW is also committed by a person who purports to discharge the administrative functions of a priest . In decisions nos . CARDINAL\/CARDINAL and DATE ORG applied LAW to cases of persons who had purported to exercise the religious functions of an NORP priest by conducting services , christening children etc .","Article CARDINAL of the Criminal Code provides as follows :","\u201c A person who publicly wears the uniform or the insignia of a ORG or municipal official or of a religious minister of those referred to in LAW without having the right to do so ... is punished with imprisonment DATE or a fine . \u201d","Ministers of ORG and other \u201c known \u201d religions enjoy a number of privileges under domestic law . Inter alia , the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service ."],"violated_articles":["9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22960","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"SMITH v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress;Nicolas Bratza","text":["The applicant , Mr PERSON , is a GPE national , born in DATE , and he is currently in prison in GPE . He is represented before the ORG by PERSON and PERSON , a firm of solicitors practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant was convicted of inflicting grievous bodily harm .","On DATE the applicant \u2019s cousin shot a man at point blank range in the thigh with a sawn - off shotgun in the living room of the applicant \u2019s home . The applicant was arrested on DATE . He denied any knowledge of the incident claiming that that night he had been to a number of pubs , gone home , had tea and gone to bed .","On DATE he was interviewed by the police and he declined to answer questions . Later , on DATE , he requested an interview with the police . This time he told the police that he knew who was responsible for the shooting but that he had nothing to do with it . He said the shooting had taken place outside his house and that he had not been present . He was charged at the conclusion of that interview with wounding with intent to cause grievous bodily harm and with possession of a firearm . He then requested a further interview when he admitted that he had been at a pub with the victim and his cousin . The applicant claimed that when he arrived home the shooting had already happened and this time he named his cousin as responsible . When asked how he knew if he was not present at the time , he said that he had received a phone call from his cousin admitting responsibility .","On DATE , the applicant \u2019s cousin was subsequently convicted of wounding with intent to cause grievous bodily harm and was sentenced on DATE to CARDINAL years\u2019 imprisonment .","The applicant , who had fallen ill during the trial , was tried later in DATE on CARDINAL count of wounding with intent to cause grievous bodily harm and CARDINAL count of possession of firearm with intent to endanger life . He did not give evidence at his trial or call any witnesses on his behalf . The victim \u2019s evidence was that the applicant had entered the room in his house with a sawn - off shotgun , had pointed the gun at the victim \u2019s head and legs and then left the room . He came back within TIME with his cousin , his cousin had the gun , the cousin pointed the gun at the victim \u2019s head and then his legs and then shot the victim in the thigh . It was the prosecution \u2019s case that the applicant had been behind the shooting and was responsible for providing the weapon . There was unchallenged evidence that the victim \u2019s blood and flesh were found on the chair where he was shot in the applicant \u2019s house and wadding from a shotgun cartridge and more of the victim \u2019s blood were found outside the applicant \u2019s house .","At the close of the prosecution case it was submitted on behalf of the defence that there was no case to answer . The trial judge rejected the application ruling that there was no inherent weakness sufficient to enable him to withdraw the case from the jury . The applicant , who began to feel unwell during these proceedings , did not leave the court until after the judge \u2019s ruling . Since the applicant was not intending to give evidence or call any evidence in his defence , at that stage all that remained were the closing speeches of counsel to the jury . The trial judge had already enquired as to whether the applicant had been warned of the possible consequences of not giving evidence before the applicant was taken ill .","The trial judge adjourned the trial to seek a report on the applicant \u2019s health . He was informed that the applicant was suffering from angina and was to be discharged from hospital TIME . The trial judge directed the trial to resume DATE . The applicant attended but his counsel requested permission for the closing speeches to be given in his absence . The prosecution and the trial judge agreed that the applicant could go home .","On DATE the trial judge gave a detailed summing - up to the jury . In outlining to the jury the functions of the judge and jury , he stated :","\u201c ... You must ... be careful to decide the case only on the evidence which has been placed before you . You are entitled to draw inferences ; that is to come to common sense conclusions based upon the evidence which you accept , but you must not speculate about what evidence there might have been because that amounts to no more than guessing , and you must not do that . \u201d","As to the burden and standard of proof , he pointed out that :","\u201c As in all cases under the NORP criminal law , the prosecution must prove that the defendant is guilty . [ The applicant ] does not have to prove his innocence . Indeed , he has chosen not to give evidence . That is his right .","In a criminal trial , the burden of proving the defendant \u2019s guilt lies always upon the prosecution , and in order to succeed in proving the defendant \u2019s guilt , the prosecution must make you sure of it . Nothing less than that will do , and so if after you have considered all the evidence you are sure than PERSON is guilty , then you must return a verdict of guilty . If you are not sure , your verdict must be not guilty . \u201d","He then went on to deal with the separate consideration of the CARDINAL counts against the applicant :","\u201c [ The applicant ] faces CARDINAL counts on this indictment . You must consider the case against and for the defendant on each count separately . They are merely there as a matter of convenience on the same sheet , but you may feel that in this instance they stand or fall together \u201d .","and he then dealt with the earlier conviction of the applicant \u2019s cousin :","\u201c ... you have heard that [ the applicant \u2019s cousin ] who is named in count CARDINAL of this indictment with [ the applicant ] , has been convicted . Well , the only reason you have been given this information is because it is evidence which goes to prove that this offence was committed at least by [ the applicant \u2019s cousin ] ... [ The applicant \u2019s cousin ] and other evidence tells you that it occurred in a room in [ the applicant \u2019s ] home , but that is the only purpose of the evidence . It does not prove anything else , and apart from its relevance to that matter , it has no bearing and must not have any bearing on your decision as to whether the prosecution has made you sure of this defendant \u2019s guilt \u201d .","The trial judge then dealt with the question of the relevance of the earlier lies told by the applicant to the police :","\u201c You know , you may feel , that [ the applicant ] has lied to the police . Certainly , virtually the whole of the first interview were lies and it may be that you will conclude that there are lies in [ interviews ] CARDINAL and CARDINAL as well . Well , you are entitled to consider whether this supports the case against him . You should consider : \u201c Why did he lie ? \u201d . Now , the mere fact that a defendant tells a lie is not in itself evidence of guilt . A defendant may lie for many reasons . They may possibly be innocent ones ... in the sense that they do not denote guilt of this offence . For example , it may be ... to bolster a true defence mentioned to you by [ the applicant \u2019s counsel ] a short while ago . It might be to protect somebody else or to conceal some conduct , which is not good conduct , but falls short [ of ] the commission of the offence , or it might be out of panic or confusion . If you think there is , or may be , an innocent explanation for the lies , then you should take no notice of them . It is only if you are sure that he did not lie for an innocent reason , then the lies can be regarded by you as evidence supporting the prosecution case and going towards the proof of guilt . \u201d","He then directed the jury as regards the inferences that might be drawn from the applicant \u2019s failure to give evidence :","\u201c Now , [ the applicant ] has not given evidence . That is his right . He is entitled to remain silent and require the prosecution to prove its case . Indeed , it would be strange if he were not because at the start of every interview he is given a caution : \u201c You do not have to say anything \u201d , and a few more words are added .","So , ladies and gentlemen , you must not assume he is guilty just because he has not given evidence . Because failure to give evidence can not on its own prove guilt . But , of course , he was told , and you have heard me mention it to [ the applicant \u2019s counsel ] DATE , that depending on the circumstances , you may take into account the failure to give evidence when deciding on your verdict .","[ The applicant ] did answer questions in interview and he now seeks to rely on those answers which are , of course , evidence in the case , but they are merely evidence of what he said then when being questioned by the police . It is a matter for you to decide what weight you should give to them , but you are entitled to bear in mind that those answers were not given here before you . They were not given on oath , and the prosecution has had no opportunity to test them before you in cross - examination . \u201d","On DATE the jury found the applicant guilty of wounding with intent to cause grievous bodily harm and of possessing a firearm with intent to endanger life . In DATE he was sentenced to life imprisonment pursuant to section CARDINAL of ORG and a tariff of DATE and DATE was fixed .","In his application for leave to appeal against conviction to a single judge of ORG , the applicant argued that the trial judge wrongly rejected the defence submission that there was no case to answer and wrongly failed to withdraw the case from the jury . On DATE the single judge rejected the applicant \u2019s appeal , finding as follows :","\u201c The trial judge pointed out with sufficient care the contradictions and weaknesses in the evidence against you . There was evidence that you told or indicated to your partner ... to leave the room ; that you then entered the room where the victim was with a sawn - off shotgun and pointed it at his head , chest and legs ; that you then left the room and returned with PERSON who now held the gun which was loaded and you were present when he fired at the victim . The Jury were entitled to infer either that when you entered the room with the gun it was loaded or that it was subsequently loaded in your presence . There would have been no need to load it if the only intention was to frighten the victim . Thereafter you were seen to dispose of something in the garden and both you and [ your cousin ] tidied up the room where the shooting occurred . You then either lied to the ORG or said that you had no comment to make to their questions .","In those circumstances , there was evidence for the Jury to consider and evidence from which they could infer that you had the necessary intent to be a joint participant in the offence . \u201d","In DATE the applicant submitted amended grounds of appeal with his renewed leave to appeal application to the full ORG , adding numerous complaints about the trial judge \u2019s summing up .","The full ORG rejected each ground of appeal against conviction on DATE . It \u201c emphatically \u201d agreed with the single judge \u2019s views as regards the first ground of appeal ( that there was no case to answer ) and rejected each allegation as regards the trial judge \u2019s summing up .","As to his claim that the trial judge invited the jury to consider the applicant \u2019s failure to give evidence against him in terms that were not sufficiently clear , ORG found that the trial judge could have said more at the relevant juncture but it wondered whether any further degree of clarity would have helped the applicant in the circumstances . It did not accept the applicant \u2019s complaint about the trial judge \u2019s reference to his not giving evidence as a \u201c failure \u201d to give evidence : it found that the use of the word \u201c failure \u201d in that context was neutral , proper , fair without innuendo or pejorative force .","Finally , the applicant \u2019s claim that the trial judge had invited the jury to consider drawing an adverse inference against him for not giving evidence at his trial when in fact he was medically unfit to attend his trial was also rejected , ORG noting that the defence had already declared before the applicant absented himself that it would not be calling any evidence and that the trial judge had satisfied himself , by asking the applicant \u2019s counsel , that the applicant had been warned of the possible consequences of not giving evidence .","On DATE , on the applicant \u2019s appeal against sentence , ORG quashed the sentence of life imprisonment and substituted a term of DATE imprisonment .","Section CARDINAL of ORG LAW DATE , which concerns the exercise of the defendant \u2019s right to silence at trial , provides that :","\u201c ( CARDINAL ) At the trial of any person for an offence , sub - sections ( CARDINAL ) and ( CARDINAL ) below apply unless\u2013","( a ) the accused \u2019s guilt is not in issue ; or","( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ;","but subsection ( CARDINAL ) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence .","( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .","( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . \u201d","Section CARDINAL ( CARDINAL ) adds that :","\u201c A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... \u201d","Section CARDINAL(CARDINAL ) of the DATE Act is the subject of Practice Direction : ORG ( Defendant \u2019s Evidence ) ( [ DATE ] CARDINAL Cr . App . NORP CARDINAL ( ORG ) Guidance ) which sets out how the trial judge must ensure in open court that a defendant who decides not to give evidence at trial has been warned ( by his counsel ) that the jury may draw adverse inferences from this .","In NORP v. PERSON ( [ DATE ] CARDINAL Cr . App . PERSON ) , Lord PERSON considered the direction that should be given by the trial judge to the jury and emphasised CARDINAL essential points .","\u201c CARDINAL . The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .","It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .","An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .","Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant \u2019s silence .","NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant \u2019s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . \u201d","The ORG specimen direction for the use of trial judges concerning section DATE at the time of the applicant \u2019s trial stated :","\u201c The defendant has not given evidence . That is his right . He is entitled to remain silent and require the prosecution to prove its case . You must not assume he is guilty just because he had not given evidence because failure to give evidence can not , on its own , prove guilt . However , as he has been told , depending on the circumstances , you may take into account his failure to give evidence when deciding on your verdict .","NORP In the first place when considering the evidence as it now is , you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution .","NORP In the second place if you think in all the circumstances it is right to do so , you are entitled , when deciding whether the defendant is guilty of the offence(s ) charged , to draw such inferences from his failure to give evidence as you think proper . In simple terms , this means that you may hold this failure against him .","[ There is evidence before you on the basis of which the defendant \u2019s advocate invites you not to hold it against the defendant that he has not given evidence . That evidence is ( here set out the evidence ) . If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence , do not hold his silence against him . If , on the other hand , it does not in your judgment provide an adequate explanation for his absence from the witness box , then you may , if you think it right , hold his failure to give evidence against him . ]","What inference can you properly draw from the defendant \u2019s decision not to give evidence before you ? If you conclude that there is a case for him to meet , you may think that if he had an answer to it he would have gone into the witness box to tell you what it is .","If , in your judgment , the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give , or none that would have stood up to cross - examination , then it would be open to you to hold against him his failure to give evidence , that is , taken it into account as some additional support for the prosecution \u2019s case . You are not bound to do so . It is for you to decide whether it is fair to do so . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-112831","languageisocode":"ENG","respondent":"ESP","branch":"ADMISSIBILITY","date":2008,"docname":"MONEDERO ANGORA v. SPAIN","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr LOC , is a NORP national who was born in DATE and lives in FAC . He was represented before the Court by Mr PERSON del Rosal , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the applicant was arrested in GPE and remanded in custody in execution of a NORP arrest warrant issued by the NORP judicial authorities following a judgment by the PERSON tribunal de grande instance delivered in his absence on DATE . In that judgment , the court had sentenced the applicant to CARDINAL years\u2019 imprisonment for a drug - related offence .","On DATE central examining magistrate no . CARDINAL referred the case to the Audiencia Nacional for a decision on the merits . However , he considered that the statutory time - limit for surrendering the applicant to the NORP authorities had not been complied with and that the application to have the applicant surrendered to the NORP authorities could therefore be rejected , the applicant being opposed to it .","On DATE the applicant submitted an application for bail , arguing that there was nothing to indicate that he had committed the offence in respect of which the NORP courts had delivered their judgment in DATE . ORG dismissed his application by a decision of DATE .","However , on DATE the same court ordered the applicant \u2019s release . At the same time , it requested the NORP authorities to provide the fingerprints of the person who had been detained in GPE , and asked ORG for the fingerprints of the person who was the subject of the extradition request .","In a decision of DATE , the Audiencia Nacional agreed to surrender the applicant to the NORP authorities . It noted that the procedure complied with the conditions laid down in PERSON CARDINAL\/CARDINAL of DATE , which had been enacted in GPE pursuant to the obligations on the ORG under the framework decision on the NORP arrest warrant and the surrender procedures between member GPE adopted by ORG on DATE ( ORG CARDINAL\/CARDINAL of DATE ) . The decision made the surrender of the applicant to the NORP authorities conditional on any sentence that might be imposed upon him being executed in GPE , as the judgment convicting him had been delivered in his absence and was therefore subject to appeal .","On DATE the applicant submitted an application for interpretation ( aclaraci\u00f3n ) of that decision . The application concerned , firstly , whether he had been identified and by what means and , secondly , the application to his case of LAW DATE on passive extradition and not of the framework decision of ORG of DATE , given that the facts at the origin of the criminal proceedings in GPE had taken place between DATE and DATE . On DATE the Audiencia Nacional dismissed the application , considering that the contested decision did not fall into the category of cases subject to an application for interpretation under section CARDINAL of LAW . Owing to an error , the applicant was not informed that his application had been dismissed .","On DATE , the Audiencia Nacional ordered that the applicant be detained for surrender to the NORP authorities . An appeal ( recurso de s\u00faplica ) lodged against that decision was dismissed on DATE , as the measure had been adopted for the purposes of surrendering the applicant to the NORP authorities but the applicant could still serve the final sentence in GPE .","Relying on DATE ( right to a fair trial ) in conjunction with ORG ( right to freedom ) and CARDINAL ( principle of legality ) of the LAW , the applicant lodged an amparo appeal ( action for infringement of fundamental rights ) with ORG against the decisions of DATE and DATE and DATE . ORG dismissed the appeal in a judgment delivered on DATE and served on DATE .","It dismissed the complaints relating to the decision of DATE as they were out of time , and considered that the applicant had not been adversely affected by the failure to notify him of the rejection of his application for interpretation of the decision delivered on DATE because that application had clearly been futile .","With regard to the decisions of DATE and CARDINAL DATE relating to the detention of the applicant for the purposes of surrendering him to the NORP authorities , ORG noted that the amparo appeal did not contain any complaint about those decisions ; the applicant had confined himself to arguing , firstly , that the Audiencia Nacional should have applied the extradition law , which he considered to be of greater relevance to his case , and not PERSON CARDINAL\/CARDINAL on the NORP arrest warrant and , secondly , that the NORP criminal proceedings resulting in a NORP arrest warrant being issued against him had related to a statute - barred offence . In that connection , ORG observed that it was not its task to reconstruct the reasons given by applicants for lodging an appeal .","The applicant then requested that the decision of DATE be served on him , which was done on DATE . On DATE he lodged a further amparo appeal with ORG . In a decision of DATE , the court dismissed the appeal , holding that an application for interpretation which artificially extended the proceedings was inadmissible .","\u201c CARDINAL . The courts can not amend decisions once they have been signed ; however they can interpret obscure concepts and correct clerical errors ... \u201d","\u201c ... The purpose of this PERSON is to fulfil the obligations which the framework decision creates for the member GPE , and which consist of replacing extradition procedures with a new procedure for surrender [ to the authorities of the applicant ORG ] of persons who are suspected of having committed an offence or who try to escape justice after being convicted by a final decision . ...","The application of the principle of mutual recognition requires that , once the competent authority has received the NORP warrant with a view to its execution , this takes place practically automatically , without the judicial authority that executes the warrant having to examine the application again to verify its conformity with domestic law . Therefore , the reasons enabling the judicial authority to refuse execution are laid down by law , and the nature [ of the warrant ] allows that authority to make an objective assessment . Thus the usual reasons for refusal in extradition proceedings are eliminated , such as those relating to the non - surrender of nationals or to the fact that certain offences are considered to be political offences .","The extremely innovative nature of this procedure is even clearer if we consider that it applies to the long list of categories of offences set out in the framework decision , for which the existence of double criminality can no longer be verified . Accordingly , when the judicial authority receives a NORP arrest warrant for one of the types of offence listed , and provided that the corresponding sentence exceeds a given threshold , it must proceed with execution , whether or not its criminal legislation provides for such an offence . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108189","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2011,"docname":"CASE OF TESLENKO v. UKRAINE","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE . His present place of residence is unknown .","On DATE and CARDINAL DATE PERSON and PERSON were robbed in their flats . The first robbery took place in the building where the applicant \u2019s acquaintance PERSON lived , while the second victim was her distant relative .","On DATE the police questioned PERSON , who was suspected by one of the victims . She stated that both robberies had been committed by the applicant and his friends .","On DATE PERSON was hospitalised with a head injury and concussion . On DATE she complained to ORG that she had been coerced by the police into testifying against the applicant . After PERSON went into hiding from the authorities . Her complaint was later examined as part of the applicant \u2019s trial ( see paragraph CARDINAL below ) .","Late in TIME of CARDINAL DATE or during TIME of CARDINAL DATE the applicant was apprehended by the police on suspicion of the robberies of PERSON and PERSON His arrest was documented on DATE .","On DATE the ORG of Kyiv ( \u201c the Solomyanskyy Court \u201d ) severed the charge concerning the robbery of Ms Z. and remitted the case in that part for additional investigation . Its outcome is unknown .","While it is not known when the applicant began to be legally represented , it transpires from the aforementioned ruling of DATE , as well as from the subsequent judicial decisions , that from that point onwards CARDINAL or sometimes CARDINAL lawyers represented him in the course of the trial .","Although the applicant consistently denied guilt , both during the pre - trial investigations and the trial , on DATE ORG found him guilty of the violent robbery of PERSON and sentenced him to DATE and CARDINAL months\u2019 imprisonment with confiscation of all his personal property . The court relied on the statements of the victim , who recognised the applicant as CARDINAL of the perpetrators , as well as the statements of a witness who had seen him close to the crime scene around the time of the robbery . The court further relied on the statements given by PERSON during the pre - trial investigation . It also heard statements from CARDINAL defence witnesses , according to which the applicant had spent DATE with them on DATE , but did not trust the statements , deeming them too general and contradictory .","On DATE ORG ( \u201c the ORG \u201d ) quashed the judgment and remitted the case for additional investigation , having pointed out a number of procedural shortcomings .","On CARDINAL DATE ORG delivered a new judgment , the operative part of which was identical to the previous one . The court additionally heard a number of defence witnesses who stated that they had either spent DATE on DATE in the applicant \u2019s company or had seen him at various times on that date . The court decided , however , that those statements were either untruthful , because the witnesses were the applicant \u2019s friends and wanted to help him avoid criminal liability , or unrelated to the precise time when the robbery had been committed . PERSON was questioned during the trial and retracted her earlier statements incriminating the applicant as given under duress . However , the court chose to rely on those earlier statements as more plausible and concordant with the other facts . It noted , in particular , that she had not requested a medical examination until DATE after her questioning by the police and that there was no evidence that the injuries discovered had been inflicted on her in police custody . While PERSON contended that she had been hiding in fear that the police might seek revenge , the court considered it more probable that she had in fact been afraid that the applicant \u2019s accomplices who had not been detained might seek revenge .","On DATE and DATE ORG and ORG respectively upheld the aforementioned judgment .","On DATE the applicant was released on parole .","According to the applicant , the Chief and Deputy Chief of ORG of LOC ( \u043d\u0430\u0447\u0430\u043b\u044c\u043d\u0438\u043a \u0442\u0430 \u0437\u0430\u0441\u0442\u0443\u043f\u043d\u0438\u043a \u043d\u0430\u0447\u0430\u043b\u044c\u043d\u0438\u043a\u0430 \u0432\u0456\u0434\u0434\u0456\u043b\u0443 \u043a\u0440\u0438\u043c\u0456\u043d\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u0440\u043e\u0437\u0448\u0443\u043a\u0443 \u0421\u043e\u043b\u043e\u043c\u2019\u044f\u043d\u0441\u044c\u043a\u043e\u0433\u043e PERSON \u041c\u0412\u0421 PERSON ) , officers NORP and PERSON , tortured him in the police station at FAC during TIME CARDINAL DATE . They allegedly sought , but failed to obtain , a confession from him to several counts of robbery .","As submitted by the applicant , T. and PERSON punched and kicked him , forced him to stand for a long time with his legs wide apart , attempted to insert a truncheon into his anus , and put a plastic bag over his head , stopping him from breathing . In TIME of CARDINAL DATE they allegedly took him to the police station garage , where they forced him to undress , handcuffed him to a radiator and poured cold water on him from a car - wash hose until he lost consciousness . After the applicant regained consciousness , he found himself inside the police station and was given a mug of hot water to drink and some drops .","On DATE the applicant wrote an \u201c explanatory note \u201d , stating that he had accidentally fallen in the street the night before and had received some injuries as a result . He noted that he had no complaints against the police .","In TIME DATE the applicant was taken to another police station in FAC , LOC , TUM-CARDINAL ( PERSON \u0443\u043f\u0440\u0430\u0432\u043b\u0456\u043d\u043d\u044f \u043c\u0456\u043b\u0456\u0446\u0456\u0457 DATE , ORG ) .","On DATE the applicant \u2019s mother complained to the ORG that he had been ill - treated in police custody .","On DATE representatives of the ORG visited the applicant in ORG and took photographs of his injuries . The applicant provided the ORG with CARDINAL colour photographs , which , according to him , are those taken by the ORG \u2019s representatives . From these photographs , the following injuries can be seen on his body : a large bruise on the inner part of his left thigh , a considerable number of bruises on the upper parts of both buttocks , several sores and bruises on the front of both ankles , and sores on the bridge of his nose . The date printed on the photographs is DATE .","On DATE the applicant gave an account of the CARDINAL DATE events to the ORG \u2019s representatives in writing . He submitted that on DATE he had been forced to write that he had no complaints against the police .","On DATE the ORG wrote to ORG that the applicant \u2019s situation called for investigation .","On DATE a doctor examined the applicant and discovered CARDINAL bruises on his face , arms , buttocks and legs ( with the largest one measuring QUANTITY ) , as well as sores on his wrists and feet . He concluded that the injuries were not serious , and that they had been inflicted by blunt objects , possibly on CARDINAL or DATE .","On DATE an investigator of ORG and ORG ( \u043d\u0430\u0447\u0430\u043b\u044c\u043d\u0438\u043a PERSON \u043f\u043e \u043e\u0441\u043e\u0431\u043e\u0432\u043e\u043c\u0443 \u0441\u043a\u043b\u0430\u0434\u0443 ORG ) questioned the applicant about his alleged ill - treatment .","On DATE another investigator of ORG ordered another forensic medical examination aimed at answering the following questions : whether the applicant had any injuries on his body and , if so , how they had been inflicted ; whether those injuries could have been inflicted on CARDINAL or DATE ; and how serious they were .","On DATE ORG ( \u201c the SDPO \u201d ) instituted a criminal investigation , without naming any specific individuals , into the allegation that LOC police officers had exceeded their powers by engaging in violent and degrading treatment of the applicant . The investigation was entrusted to SDPO investigator PERSON","On DATE a new forensic medical report confirmed the results of the applicant \u2019s medical examination of CARDINAL DATE .","On DATE the investigator ordered another medical examination to clarify : whether the applicant could have inflicted the injuries on himself ; whether he could have sustained those injuries by falling ; what his body position had been during the infliction of the injuries ; and whether he could have sustained them in self - defence .","On DATE an expert report answered those questions as follows : the injuries were to parts of the applicant \u2019s body on which self - infliction would be possible ; the possibility that they had been the result of a fall was excluded ; and the remaining CARDINAL questions could not be answered .","In the meantime , on DATE , the applicant was assigned victim status .","On DATE the investigator questioned the forensic medical expert , who confirmed that the applicant could have sustained his injuries at the time and under the circumstances described by him .","On DATE the SDPO opened a criminal case against police officers T. and PERSON on suspicion of abuse of power associated with violence and degrading treatment ( LAW ) , given that the applicant had recognised them as those who had allegedly tortured him .","On DATE those officers were suspended from duty .","On DATE they were indicted , and the case was sent to ORG of Kyiv ( \u201c the Golosiyivskyy Court \u201d ) .","On DATE ORG directed the SDPO to find out with whom the applicant had shared cells from CARDINAL to CARDINAL DATE and to question these persons .","On DATE the court referred the case back to the SDPO for additional investigation , which was to clarify the origin of the applicant \u2019s injuries given that , on the one hand , they were to parts of his body on which self - infliction would be possible and , on the other hand , his cell - mates at the time had not been identified or questioned .","On DATE the forensic medical expert , repeatedly questioned by the investigator , confirmed again her earlier findings that the applicant \u2019s injuries could have been inflicted as he had described .","On DATE formal charges were brought against T. and Z. under LAW .","On DATE the SDPO invited the NORP Chief of Police to consider suspending ORG , who had resumed his work as a police officer at some point in the meantime , from his duties .","On DATE the ORG approved a bill of indictment against T. and PERSON and sent the case to ORG for examination .","On DATE the trial began .","On DATE the applicant lodged a civil claim seeking compensation for non - pecuniary damage in the amount of CARDINAL NORP hryvnias ( ORG ) .","On DATE ORG found T. and PERSON guilty and sentenced them to CARDINAL years\u2019 imprisonment with a prohibition on working in law - enforcement bodies for DATE . The prison sentence was suspended for DATE on probation . The court also awarded the applicant UAH CARDINAL,CARDINAL in compensation for non - pecuniary damage , to be paid by the defendants .","While both defendants admitted that they had questioned the applicant on TIME CARDINAL - CARDINAL DATE in the police station at FAC , they denied any coercion . However , the court found that there was sufficient evidence to establish their guilt . It took into account statements by several witnesses , who had seen the applicant during DATE before his arrest without any visible injuries . Furthermore , the court relied on the statements of the applicant \u2019s cell - mates in TUM-CARDINAL at FAC ( where he had been placed in TIME DATE ) , who , on the one hand , had seen numerous bruises and sores on his body , but , on the other , denied any ill - treatment in ORG . Also , the police officers who had escorted the applicant from the police station at FAC to ORG on DATE stated that at that time his face was already bruised and swollen . The court also examined the photographs of the applicant taken by the ORG \u2019s representatives on DATE and relied on the findings of the medical reports of CARDINAL DATE and CARDINAL DATE . It noted that the applicant \u2019s description of the police station garage where he had allegedly been ill - treated , was very detailed and subsequently confirmed as accurate , which showed that he had indeed been there .","On DATE ORG quashed the judgment and remitted the case for additional investigation . It concluded that the investigation had been incomplete , mainly because it had failed to establish how exactly the injuries had been inflicted on the applicant .","On DATE investigator PERSON took the case over .","DATE . On DATE he ordered another forensic medical examination with a view to clarifying the number , nature , location , origin and date of each of the applicant \u2019s injuries .","On CARDINAL DATE an expert report was produced , which confirmed the findings of the earlier reports . It further specified that the abrasions on the applicant \u2019s wrists could have been caused by handcuffs , while the bruises could have been caused by being punched , kicked or hit with a truncheon .","On DATE the investigator instructed the NORP Chief of Police to find the truncheon with which the applicant could have been beaten . The reply given on DATE stated that it could not be found .","On DATE T. was again suspended from duty ( it is not known when he resumed his duties following the earlier removal ) .","On DATE investigator PERSON decided to withdraw from the case . He considered that the evidential basis was limited to the applicant \u2019s allegations and not corroborated by any other valid evidence . The investigator grounded his withdrawal by that view and further referred to the principle of the impartiality of the investigation .","On DATE reversed that withdrawal as lacking legal basis .","On DATE the investigator applied to the Deputy General Prosecutor for an extension of the term of the pre - trial investigation to DATE ( the DATE term was to expire on DATE ) given that the accused had not yet studied the case file . In the application the investigator however indicated that T. and PERSON had been protracting the investigation by taking an unjustifiably long time to familiarise themselves with the file and by unmeritorious requests for unnecessary investigation measures .","On DATE the SDPO indicted T. and PERSON again .","On DATE ORG started the examination of the case .","On DATE the applicant brought a new civil claim against T. and Z. within the criminal proceedings .","During the period DATE the court adjourned hearings CARDINAL times for a total of over DATE because of the absence of a number of witnesses .","On DATE ORG again remitted the case for additional investigation on the following grounds : the GPE lawyer had been deprived of his licence at some point during the pre - trial investigation , but had nonetheless continued to represent them . As a result , the court considered that the defence rights of T. and PERSON had been violated .","On DATE ORG quashed that decision and referred the case back to the first - instance court , allowing the public prosecutor \u2019s appeal .","On DATE ORG issued a special ruling ( \u043e\u043a\u0440\u0435\u043c\u0443 \u0443\u0445\u0432\u0430\u043b\u0443 ) bringing to the attention of the GPE Chief of Police the latter \u2019s failure to comply with the court orders of DATE , DATE and DATE , that the obligatory attendance of numerous witnesses should be ensured . The orders were that the police were to take appropriate measures and report to the court .","On DATE the applicant wrote the following statement addressed to the President of ORG :","\u201c I , PERSON , would like to make the following statement . ORG of GPE is currently examining a case against the Chief of ORG [ T. ] and [ Z. ] , in which I am a victim . I retract the statements which I gave in the prosecutor \u2019s office under pressure from the investigator and in court , namely that it was precisely [ T. and PERSON ] who had beaten and humiliated me . The investigator [ N. ] demanded that I identify [ T. and PERSON ] . In exchange , he promised I would be acquitted and that criminal department officials would be held liable . I remembered [ T. ] because he had been the Chief , and [ PERSON ] because he had been wearing glasses . I could recognise only those CARDINAL , as I could not , and do not now , remember any other officers . I was beaten up at FAC , no . CARDINAL , as they really needed my confession to the robbery . But I did not remember any officers from LANGUAGE [ street ] , and I was advised to incriminate those I remembered . When the investigator [ N. ] came to see me , I was at a loss and did not know what to tell him . But he reassured me and told me that I did not have to worry and that I was to testify against those I remembered . As to what exactly I had to tell and to show , he told that he would help me . At the same time , he promised that if I followed his advice I would be at liberty shortly . It is very difficult for me now to testify before the court , for I have got confused in my statements because it was the investigator [ N. ] who gave them to me . I therefore request you not to disturb me any longer regarding the case of [ T. and PERSON ] and not to bring me to the court \u201d .","On DATE ORG directed the SDPO investigator to establish the actual places of residence of CARDINAL witnesses whose obligatory presence had been ordered , but who had failed to attend and whom the police had failed to bring to the courtroom . CARDINAL of the witnesses in question were police officers , CARDINAL were detained ( at the time ) in the police stations where the applicant had been placed on DATE , CARDINAL were acquaintances of the applicant , and CARDINAL was the forensic expert .","On DATE ORG also ordered obligatory attendance by the applicant , who had been released from prison in the meantime in DATE and had not been appearing for hearings .","On DATE the police informed the court that the applicant \u2019s actual place of residence could not be established .","On DATE and CARDINAL DATE the court ordered mandatory attendance by the applicant , to be ensured by the police .","DATE . On DATE ORG referred the case for additional investigation , given the need to question the applicant regarding his statement of DATE .","On DATE ORG quashed the aforementioned decision and remitted the case to the first - instance court for examination . The parties did not provide the ORG with a copy of this ruling .","According to the most recent information submitted by the Government in DATE , the case remains pending before ORG .","Article CARDINAL \u00a7 CARDINAL , as worded in DATE , provided for DATE imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of DATE as punishment for exceeding one \u2019s power by engaging in the violent or degrading treatment of a victim .","The relevant extracts from LAW provide as follows :","\u201c ... On DATE the mother of detained PERSON complained [ to the ORG ] that her son had been tortured in ORG ( \u0443 \u0421\u043e\u043b\u043e\u043c\u2019\u044f\u043d\u0441\u044c\u043a\u043e\u043c\u0443 ORG PERSON ) . Staff members of the ORG \u2019s ORG verified this allegation on site and found numerous traces of beatings on the body of PERSON ( photos were taken ) .","PERSON gave the following explanations to the staff of the ORG \u2019s ORG : \u201c I was tortured for TIME in the district police station . Trying to extract a confession to a crime from me , they beat me , forced me to stand with my legs wide apart ( \u0441\u0430\u0434\u0438\u043b\u0438 \u043d\u0430 \u00ab \u0448\u043f\u0430\u0433\u0430\u0442 \u00bb ) , prevented me from breathing by putting a plastic bag over my head , hanged me naked from handcuffs and poured cold water on me for TIME , threatening to make a General PERSON out of me . To conceal the torture , they forced me to write a statement that I had injured myself by an accidental fall on my way home the previous evening and that I had no complaints against the police . \u201d","By the way , this is a typical example : police officers often force the victims of torture to write a no - complaint statement under threats that the torture will continue or in exchange for release . Later on [ such statement ] is used by the police as a key proof of their innocence as regards any injuries sustained by the person .","After its own investigation and the ORG \u2019s application to ORG concerning the verification of PERSON \u2019s allegations , ORG opened a criminal case concerning the police officers , which is now being examined by ORG of GPE . ... \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77950","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF BELUKHA v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1 (length);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the town of GPE , the GPE region .","On DATE the applicant was transferred from her position of deputy director of ORG \u201c GPE \u201d ( \u201c the Company \u201d ) to the position of economist .","On DATE she instituted proceedings in the ORG ( \u201c the ORG \u201d ) against the Company , seeking reinstatement in the position of deputy director .","On DATE the applicant was dismissed from the position of economist , as she refused to take up her new duties .","NORP In DATE she lodged with ORG a new claim against the Company , seeking annulment of her dismissal , recovery of salary arrears and compensation . The new claim was joined to the initial proceedings .","On DATE the applicant challenged the judge , Mr B. , who was dealing with her case , and ORG , alleging that they lacked impartiality , as the Company had produced and installed window grids in the court 's new building free of charge . On DATE the President of that court , Mr V.L.G. , rejected the applicant 's motion on the grounds that it did not contain any reasons for the disqualification of the judge .","By letter of CARDINAL DATE , the President of ORG requested the Chairman of ORG of the Company to provide the court with a computer . The letter read as follows :","\u201c The ORG of GPE requests you to provide a computer for the court 's use . \u201d","NORP The letter also contained a handwritten resolution , allowing the request .","NORP On DATE the court found in part for the applicant . It annulled the ORG 's order of DATE . On DATE the ORG quashed the decision of the first instance court and remitted the case for a fresh consideration .","On DATE ORG found in part for the applicant . It ordered the Company to pay the applicant ORG CARDINAL.CARDINAL in salary arrears and other payments . The court further rejected the applicant 's claim against her dismissal .","The applicant appealed in cassation . On DATE the ORG quashed the decision of DATE concerning the pecuniary award and remitted that part for a fresh consideration .","On DATE ORG found against the applicant . On DATE ORG rejected the applicant 's appeal in cassation .","On an unspecified date the President of ORG lodged a protest ( a request for a supervisory review ) with the ORG of that court , seeking annulment of the decisions of CARDINAL DATE and CARDINAL DATE . On DATE the ORG allowed the protest , quashed those decisions and remitted the case for a fresh consideration .","On DATE the applicant challenged the impartiality of ORG . On DATE the President of the court rejected the applicant 's motion as unsubstantiated .","On DATE the applicant changed her claim , seeking modification of the reasons for her dismissal , recovery of salary arrears and compensation .","On DATE ORG found in part for the applicant . It ordered that the reasons for the applicant 's dismissal be changed and awarded her ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and other payments . That decision was not appealed against and became final .","On an unspecified date the Deputy President of ORG lodged a protest with the ORG of that court , seeking annulment of the decision of CARDINAL DATE as regards the pecuniary award . On DATE the ORG allowed the protest , quashed the decision of DATE in respect of the award and remitted that part for a fresh consideration .","On DATE ORG found in part for the applicant and ordered the Company to pay her ORG MONEY in salary arrears and other payments . That decision was not appealed against .","On an unspecified date the Acting President of ORG lodged a protest with the ORG of that court , seeking annulment of the decision of DATE . On DATE the ORG allowed the protest , quashed the decision of the first instance court and remitted the case for a fresh consideration .","On DATE the applicant lodged with ORG an appeal in cassation against the decision of DATE . On DATE the President of ORG rejected the applicant 's appeal in cassation , as the disputed decision could not be appealed .","ORG scheduled a hearing in the case for DATE . Following the applicant 's request , the hearing was postponed until DATE .","On DATE the President of the court , sitting as a single judge , found against the applicant .","In her appeal against the decision of CARDINAL DATE , the applicant raised a complaint of actual bias of the President of ORG , alleging that the court had received certain goods due to ' unofficial ' relations between the ORG 's management and Mr V.L.G.","On DATE ORG upheld the decision of DATE . The court did not deal with the applicant 's allegations of bias on the part of the President V.L.G.","On DATE the applicant appealed in cassation . On DATE ORG of GPE refused to consider the applicant 's appeal for being lodged out of time . It further held that the first instance court should have ruled on the admissibility of the applicant 's appeal in cassation .","On DATE the applicant requested an extension for lodging an appeal in cassation . On DATE the ORG granted her the extension requested , finding that the applicant had complied with the statutory time - limit for lodging her appeal in cassation .","On DATE the applicant lodged with the same court her new appeal in cassation , in which she reiterated her complaint about actual bias of the President V.L.G.","On DATE the panel of CARDINAL judges of ORG , sitting in camera , rejected the applicant 's request for leave to appeal in cassation , having found that there were no grounds for referring the case to ORG of ORG .","According to the records provided by the ORG , out of CARDINAL hearings held DATE and DATE CARDINAL were adjourned due to the absence or at the request of the applicant . CARDINAL hearings were adjourned because of the absence of the representatives of the defendant company .","DATE provided CARDINAL grounds on which a judge could be challenged and should withdraw from the case :","if he participated at an earlier stage of the proceedings as a witness , expert , interpreter , representative , prosecutor , court secretary ;","if he was personally interested , directly or indirectly , in the outcome of the proceedings ;","if his relatives took part in the proceedings ;","if he had particular relations with the persons who took part in the proceedings ; or","if there were other reasons for which his impartiality could be doubted .","Under Articles CARDINAL , the persons who took part in the proceedings could lodge a motivated application for withdrawal of a judge . The application should be examined by the court hearing the case .","According to Article CARDINAL , the resolutions adopted by the courts concerning the applications for withdrawal of a judge could not be appealed against . The parties could , nonetheless , submit their objections against such resolutions together with their appeal against the judgment in their case .","Pursuant to Articles CARDINAL and CARDINAL , the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned . The court of appeal had the power to examine new evidence , and the evidence which allegedly had not been examined in compliance with the Code . It was entitled :","to reject an appeal ;","to quash the judgment of the first instance court and to remit the case for a fresh consideration , if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined ;","to quash the judgment of the first instance court and to discontinue the proceedings ;","to change the judgment or to adopt a new judgment .","According to Article CARDINAL , the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration :","if the case had been considered by a person , who had not been entitled to sit as a judge in the case ;","if the judgment had been adopted or singed by a judge who had not heard the case ;","if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing ; or","if the judgment concerned the rights and obligations of persons who had not participated in the case .","Under LAW , the grounds for an appeal in cassation were incorrect application of substantive law by the lower courts or violation of procedural rules . LAW provided that the case should be referred to ORG :","if the appeal raised an issue of incorrect application of the procedural rules by lower courts ;","if a similar case was pending before the ORG ;","if application of the law by lower courts run contrary to the practice of the court of cassation ; or","if the court of appeal had acted as a first instance court in the case .","The case could also be referred to the ORG if the decisions had significant importance for uniform application of the law , or if the appeal contained information about the erroneous application of substantive or procedural law which had led or could have led to the wrongful decision in the case .","Pursuant to LAW , an appeal in cassation was to be lodged within DATE after the decision of a court of appeal had been pronounced . By GPE , which came into force on DATE and was later repealed as of DATE , the above time - limit was reduced to DATE . The time - limit for lodging an appeal in cassation could be extended by a first instance court , if it found that the initial time - limit had not been complied with for good reasons .","Article CARDINAL of the Code provided for the filter of appeals in cassation by a panel of CARDINAL judges of ORG who were entitled to decide whether or not leave to appeal should be granted . No participation of the parties was foreseen at that stage of proceedings . Leave to appeal was granted unless the panel unanimously decided otherwise .","Pursuant to Article CARDINAL , the court of cassation had power :","to reject an appeal ;","to quash , in full or in part , the decision at issue and to remit the case for a fresh consideration to the court of first instance or the court of appeal ;","to quash the decision of the court of appeal and to uphold the judgment of the first instance court ;","to quash the decisions in the case and to discontinue the proceedings ; or","to change the decision on the merits of the case .","According to section CARDINAL of the Act , the regional departments of justice ( territorial branches of ORG ) were responsible for technical maintenance of the district and town courts .","Under LAW of the LAW , the president of a district or town court exercised specific managerial and procedural functions . The president presided in court hearings , appointed judges to preside in a hearing , and distributed work among judges . He was also responsible for regular meetings with citizens , explanation of the law to them , and receiving complaints and propositions from them . The president oversaw the work of the registry and bailiffs . He organised the work on judicial statistics , standardisation of judicial practice , and training of the court staff ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-21932","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2001,"docname":"STRASSER v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is an NORP national , born in DATE and living in GPE . She is represented before the ORG by Mr F. Hitzenbichler , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the applicant filed an action with ORG ( Bezirksgericht ) requesting the repayment of rent and of capital expenditure ( GPE ) from her lessor . In these and the subsequent proceedings the applicant was represented by counsel .","On DATE , ORG dismissed the action . The applicant appealed against this decision on DATE .","On DATE , ORG ( Oberlandesgericht ) referred the case back to ORG requesting that additional evidence be taken . As regards the capital expenditure the applicant appealed against this decision on DATE .","On DATE , ORG dismissed the appeal and confirmed ORG decision to refer the case back to ORG for the taking of additional evidence .","ORG held hearings on DATE and DATE . An expert was appointed on CARDINAL DATE , who submitted his opinion on DATE . Following a change of the competent judge a further hearing was held on CARDINAL DATE where the expert was present and orally explained his opinion .","On DATE , ORG , having regard to the submissions of the parties , the witnesses , and the experts , rendered a partial judgment granting the applicant \u2019s claim for repayment of certain sums which she had paid in rent . Her claim for repayment of capital expenditure was admitted in substance , the precise amount remaining to be fixed after the taking of further evidence .","On DATE , ORG dismissed the applicant \u2019s appeal as far as the claim for capital expenditure was concerned .","The defendant filed a further appeal on points of law on DATE . Thereupon , on DATE , ORG confirmed ORG decision as to the claim for repayment of rent , but agreeing with the defendant dismissed the applicant \u2019s claim for compensation for capital expenditure finding that ORG had wrongly applied the law in this respect . The decision was served on DATE .","Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .","\" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert \u2019s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .","( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .","( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . \""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57913","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":1994,"docname":"CASE OF STRAN GREEK REFINERIES AND STRATIS ANDREADIS v. GREECE","importance":2,"conclusion":"Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"C. Russo;N. Valticos;R. Pekkanen","text":["Stran Greek Refineries ( \" Stran \" ) is a company currently in liquidation . Its registered address is in GPE and Mr Stratis Andreadis was its sole shareholder .","ORG Under the terms of a contract concluded on DATE with ORG , which at the time was governed by a military junta , PERSON undertook to construct a crude oil refinery in the NORP region , near GPE . The refinery was to be built , at an estimated cost of MONEY , by a company which it was proposed to form , ORG , of which the second applicant was to be the sole owner . All the latter \u2019s rights and obligations were to be automatically transferred to the company upon its incorporation .","The Government ratified the contract by Legislative Decree no . CARDINAL\/CARDINAL , published in ORG of DATE . Under LAW of the contract , the ORG undertook to purchase , not later than DATE , a plot of land in GPE suitable for the construction of the refinery . On DATE , by LAW ( no . CARDINAL ) , issued pursuant to Legislative Decree no . CARDINAL\/CARDINAL on \" ORG from Abroad \" , the ORG authorised PERSON to import MONEY to finance the scheme .","ORG However , the project stagnated because the ORG failed to fulfil its obligation . On DATE the Ministers of Industry and Agriculture announced at a press conference in GPE the Government \u2019s decision to return to the proprietors the land which had already been expropriated in accordance with LAW . The following day the LOC police ordered that the work should cease .","In DATE PERSON protested to the relevant authorities and sought permission to proceed with the work . On DATE it even issued an extra - judicial summons inviting the ORG to ratify the purchase of the land in question , but the ORG refused to revoke the police order prohibiting the continuation of the work .","ORG Once democracy had been restored , the Government took the view that the contract and Decree no . CARDINAL were prejudicial to the national economy ; they relied on LAW . CARDINAL of Law no . CARDINAL on the termination of preferential contracts ( kharistikes symvasseis ) concluded under the military regime ( DATE ) . This PERSON , which was enacted by special authorisation under LAW ( Article CARDINAL - see paragraph CARDINAL below ) , possessed superior force .","The applicants did not respond to a proposal addressed to them by the Minister for Co - ordination on DATE inviting them to enter negotiations for the revision or termination of the contract . Accordingly , a ministerial committee on the economy terminated the contract on DATE . The applicants did not challenge this decision in the courts .","ORG Prior to the termination of the contract , Stran had incurred expenditure in connection with the scheme . In particular , it had concluded contracts for the supply of goods and services with foreign and NORP undertakings and had taken out loans .","A dispute then arose between GPE and the ORG . On DATE Stran brought an action ( anagnoristiki agogi ) in ORG for a declaration that the ORG should pay it compensation in the amounts of MONEY , MONEY and MONEY . It argued that the ORG had been in breach of its obligations during the period of validity of the contract , in particular in so far as it had , since DATE , prohibited the continuation of work on the construction of the refinery at LOC and had not , since DATE , taken any steps to expropriate the land required for that construction . It also sought the return of a cheque for MONEY which it had lodged with ORG as security for the proper performance of the contract ; it further claimed reimbursement of the commission and the DATE stamp fee paid to ORG .","The ORG challenged the jurisdiction of the court . It contended that the dispute should be referred to arbitration in accordance with LAW , the relevant paragraphs of which were worded as follows :","\" CARDINAL . Any difference , dispute or disagreement arising between the ORG and the Concessionaire as to the application of this LAW and relative to the interpretation of the terms and conditions thereof and the extent of the rights and obligations deriving therefrom shall be resolved exclusively by arbitration by CARDINAL arbitrators according to the following procedure , no other arbitration agreement being required .","...","The arbitration award shall be definite , final and irrevocable , and shall constitute an enforceable instrument requiring no further action for enforcement or any other formality . It shall be liable to no ordinary or extraordinary judicial remedies , nor shall it be subject to cancellation or suspension before ordinary courts of justice . The party failing to comply with the provisions of the arbitration award shall be obligated to make good any and all damage ( damnum emergens or lucrum cessans ) caused to the other party . \"","ORG In a preliminary decision ( no . CARDINAL\/CARDINAL ) of CARDINAL DATE , ORG Instance rejected the ORG \u2019s main submission . It held that the arbitration clause concerned solely the settlement of disputes arising from the performance of the contract and not the failure of CARDINAL of the parties to perform the contract . It found further that the ministerial committee on the economy had terminated the contract in issue in its entirety ( see paragraph CARDINAL above ) which had the effect of rendering the arbitration clause void as it was not an autonomous provision . In addition , the court dismissed the ORG \u2019s argument that CARDINAL of the conditions subsequent contained in the contract , namely the lodging of a cheque as security and the payment of the second part of the minimum capital , had not been satisfied . Finally , the court ordered additional investigative measures , including the hearing of CARDINAL witnesses , in order to determine the existence and extent of the damage alleged by GPE .","ORG On DATE the ORG filed an arbitration petition and appointed an arbitrator . It requested the arbitration court to declare that all the claims for compensation against ORG lodged by PERSON in ORG ( see paragraph CARDINAL above ) were unfounded .","In its memorial of DATE Stran - which had appointed a professor of law at ORG as arbitrator - maintained primarily that the arbitration court lacked jurisdiction and requested that the arbitration be stayed until the proceedings instituted on DATE had been concluded ; in the alternative and in order to rebut the ORG \u2019s arguments on the merits , it referred the arbitrators to its pleadings in ORG .","ORG The arbitration court was constituted on DATE ; its president was chosen jointly by the CARDINAL other arbitrators ( Article CARDINAL para . CARDINAL of the contract ) . It made its award on DATE .","It found that it had jurisdiction in that , in its view , the disputes arising from the total failure to perform the contract were also subject to arbitration , which was not restricted to those deriving from non - performance of individual clauses as had been argued by the ORG . The wording of the arbitration clause in DATE ( see paragraph CARDINAL above ) was sufficiently general and clear to rule out such distinctions .","On the merits , the arbitration court relied on the evidence adduced by the parties before ORG on DATE ( see paragraph CARDINAL above ) . It found that responsibility for the losses sustained by GPE was shared - PERCENT for the ORG and PERCENT for the company . The latter had commenced work on land which had been the subject of a contested expropriation order and without first obtaining the necessary planning permission . It therefore held ORG claims to be well - founded in an amount not exceeding MONEY , MONEY and MONEY , plus interest at PERCENT from DATE ; however , this reference to interest did not appear in the operative part of the decision . Finally , the court declared that the ORG was unlawfully retaining the cheque lodged as security ( see paragraph CARDINAL above ) .","ORG On DATE the applicant company sought an order from ORG requiring the ORG to return the security , but the court stayed the proceedings pending the conclusion of those instituted on DATE ( see paragraph CARDINAL above ) .","ORG On DATE the ORG had asked ORG to set aside the arbitration award of DATE .","It argued that the arbitration court had lacked jurisdiction to hear disputes arising from the contract in issue and ORG financial claims against the ORG . In the alternative , it affirmed that the contracting parties had intended to limit the jurisdiction of the arbitration court to disputes concerning the performance and interpretation of the clauses of the contract and the scope of the rights and duties deriving therefrom ; its jurisdiction could not therefore extend to disputes relating to the total failure to perform the contract . It followed that the dispute in question was a matter for the ordinary civil courts , as ORG had recognised in its judgment no . CARDINAL\/CARDINAL . In the further alternative , the ORG argued that the arbitration court \u2019s lack of jurisdiction was confirmed by the fact that ORG claims against it had become statute - barred following the termination of the contract . Finally , it stressed the declaratory nature of the action brought by GPE on DATE ( see paragraph CARDINAL above ) .","ORG In a judgment ( no . DATE ) of DATE the GPE court dismissed the ORG \u2019s application , holding that the decision terminating the contract had not rendered the arbitration clause void . That clause continued to produce its effects in relation to disputes which had arisen during the period of validity of the contract .","ORG On DATE the applicant company withdrew its first action in ORG ( see paragraph CARDINAL above ) , but sought to pursue its action for the return of the cheque lodged as security ( see paragraph CARDINAL above ) .","When this action was heard in ORG , on DATE , the ORG , relying on LAW , opposed the discontinuance of the first action . It maintained that the latter action would have resulted in a finding unfavourable to GPE and that the ORG thus had a legitimate interest in seeking a final decision .","However , the court again stayed the proceedings ( decision no . DATE ) on account of the appeal on points of law which was pending ( see paragraph CARDINAL below ) .","ORG In a judgment ( no . CARDINAL\/CARDINAL ) of CARDINAL DATE , ORG , basing its decision on the same grounds , upheld the judgment of DATE .","It ruled , inter alia :","\" In modern NORP legislation the principle of the autonomy of an arbitration clause in relation to the contract prevails . The termination of the contract , for whatever reason , does not bring an end to the power of the arbitrators designated to hear disputes which have arisen during the period of validity of the contract ... The decision of the ministerial committee on the economy did not annul the arbitration clause contained in DATE of the contract and , accordingly , it does not preclude the arbitrators from examining the merits of the dispute . \"","ORG On DATE the ORG appealed to ORG .","The hearing was initially set down for CARDINAL DATE , but on that date it was postponed to DATE at the ORG \u2019s request , on the ground that a draft law concerning the case in question was before ORG .","In reply to a question put by ORG at the hearing on DATE , the ORG lawyer maintained that ORG judge - rapporteur had sent his opinion , which had been favourable to the applicants\u2019 arguments , to the parties before DATE and this affirmation was not disputed by the Government .","ORG On CARDINAL DATE ORG enacted PERSON no . CARDINAL\/CARDINAL on \" the compulsory participation of the ORG in private undertakings ... and the redemption of shares \" , which entered into force upon its publication in ORG of CARDINAL DATE . This PERSON dealt principally with the renegotiation of a concession for the prospecting for and extraction of oil and natural gas in an area of LOC . However , LAW was worded as follows :","\" CARDINAL . The true and lawful meaning of the provisions of Article CARDINAL para . CARDINAL of Law no . CARDINAL concerning the termination of contracts entered into DATE and DATE is that , upon the termination of these contracts , all their terms , conditions and clauses , including the arbitration clause , are ipso jure repealed and the arbitration tribunal no longer has jurisdiction .","Arbitration awards covered by paragraph CARDINAL shall no longer be valid or enforceable .","Any principal or ancillary claims against ORG , expressed either in foreign or local currency , which arise out of the contracts entered into DATE and DATE , ratified by statute and terminated by virtue of PERSON no . CARDINAL\/CARDINAL , are now proclaimed time - barred .","Any court proceedings at whatever level pending at the time of the enactment of this statute , in respect of claims within the meaning of the preceding paragraph , are declared void . \"","ORG On DATE , after hearing the opinion of the judge - rapporteur calling for the appeal to be dismissed , ORG delivered its judgment ( no . CARDINAL\/CARDINAL ) . It held that LAW was unconstitutional on the following grounds :","\" ...","Not only does [ LAW confer superior force on Law no . CARDINAL\/CARDINAL , but it also prohibits subsequent amendments or additions thereto , or even authoritative interpretation thereof , in the form of ordinary legislation . The purpose of that superior force and of the provision in LAW requiring that a single law be enacted once and for all within DATE of the entry into force of the LAW was to ensure legislative stability and international confidence for investments in GPE . This opinion is based on the only possible meaning to be attributed to the expression \u2018 single law to be enacted once and for all\u2019 and on the ease with which the said provision would be flouted if amendments , additions or authoritative interpretation of that law were allowed ...","It follows that ... the provisions of LAW no . CARDINAL\/CARDINAL which purport to provide an authoritative interpretation of and to amend and supplement LAW . CARDINAL of Law no . CARDINAL and which were enacted after the expiry of the time - limit laid down in LAW para . CARDINAL of the LAW are contrary to that instrument . In accordance with LAW para . CARDINAL of the LAW the court is therefore precluded from applying them . The ORG refuses to apply unconstitutional provisions and , pursuant to LAW para . CARDINAL of the Code of Civil Procedure , holds that it is bound to refer the case to ORG sitting in plenary session ... \"","ORG The hearing in ORG sitting in plenary session opened on DATE , but as a result of the death of CARDINAL of its members Stran sought a new hearing , which was held on DATE .","ORG delivered its judgment ( no . CARDINAL\/CARDINAL ) on DATE . It observed , inter alia :","\" ... [ The LAW ] provides for the enactment of \u2018 a single law to be enacted once and for all\u2019 which by definition possesses superior force inasmuch as it may be neither supplemented nor amended by ordinary legislation ... However , the prohibition on supplementing or modifying the content of [ such ] laws does not mean that they may never be interpreted . The fact that they are sui generis , which gives them precedence over ordinary legislation , ... does not preclude their interpretation where the circumstances so require . The purpose of such interpretation is not to amend the substance of the law interpreted , but to clarify its original meaning and to resolve disputes that have arisen in connection with its application or which may do so in the future . [ The need for such interpretation ] will ultimately be determined by the court which will have to ascertain whether the meaning of the law interpreted actually gave rise to doubts justifying the intervention of the legislature ... Accordingly , the interpretation of LAW no . CARDINAL\/CARDINAL is not contrary to LAW merely because it is a law of superior rank . It must nevertheless be determined , on the one hand , whether the interpretation was necessary in the specific case and , on the other , whether the non - interpretative provisions of this PERSON , which have a bearing on the solution of the case in issue , are contrary to LAW ... The wording [ of LAW para . CARDINAL of Law no . CARDINAL\/CARDINAL ] lacks clarity and creates doubt as to whether the arbitration clause survives the termination of the contract ... and as to the jurisdiction of the arbitration court . In the instant case doubt first arose in the course of the proceedings brought by [ the applicants ] in the ordinary civil court and again - following the preliminary decision of ORG - when those proceedings had been discontinued and recourse was had to arbitration , where diametrically opposed arguments were put forward ... Irrespective of those doubts , the main issue is the acceptance or rejection of the principle of the autonomous character of the arbitration clause and of its scope . For a long time this matter has been the subject of significant differences of opinion in international case - law and among legal writers . In some countries the principle of the survival of the clause to resolve disputes arising prior to the termination of contracts ... prevails . In other countries the dominant view is that termination of the contract entails the annulment of the clause and therefore the referral of all the disputes to the ordinary courts . In other countries again , the accepted view is that the autonomous character of the arbitration clause operates only in respect of certain types of dispute . It was therefore necessary to provide an interpretation of PERSON no . PERSON and that interpretation resolved the problem for the purposes of NORP law by opting for the annulment of arbitration clauses ... and the removal of jurisdiction from the arbitration court . The fact that the intervention of the legislature occurred ... DATE before the hearing in ORG of this ORG and following a previous adjournment does not mean that it was not necessary and does not render it contrary to LAW paras . CARDINAL and CARDINAL and ORG CARDINAL and CARDINAL of the LAW . The dispute in question provided the opportunity to resolve a problem which had already arisen . Consequently , it can not be concluded that , in giving such an interpretation in this case , the legislature interfered with the jurisdiction of the ordinary courts and usurped that jurisdiction . It follows that , contrary to the finding of ORG , Article CARDINAL para . CARDINAL of Law no . DATE is not in breach of the LAW ... \"","ORG took the view that paragraph CARDINAL of Article CARDINAL was not unconstitutional as it essentially supplemented paragraph CARDINAL and sought to deprive of effect any arbitration awards that were made after the termination of contracts and that would not have been made if the meaning of PERSON no . PERSON had been clarified in time . In addition , the court refused to examine the constitutionality of paragraph CARDINAL , finding that it had no bearing on the case before it . Finally , it held that the adoption of paragraph CARDINAL shortly before the hearing purported to remove from the courts the possibility of determining the validity of the contested award . That provision therefore violated the principle of the separation of powers .","ORG remitted the case to ORG which , on DATE , quashed ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) and declared void the arbitration award of DATE ( see paragraph CARDINAL above ) .","ORG The following provisions of LAW are relevant here :","\" CARDINAL . The authentic interpretation of the laws shall rest with the legislative power .","A law which is not truly interpretative shall enter into force only as of its publication . \"","\" The courts shall be bound not to apply laws , the contents of which are contrary to LAW . \"","\" CARDINAL . Legislation of higher formal rank enacted before DATE pertaining to the protection of foreign capital shall continue to possess such rank and shall be applicable to capital imported henceforth .","A single law to be enacted once and for all within DATE of the entry into force of this LAW shall specify the terms and the procedure for the termination or revision of preferential administrative agreements or measures concluded or promulgated between DATE and DATE pursuant to Legislative Decree no . DATE , in so far as such agreements or measures concern the investment of foreign capital ... \"","According to legal writers , the reference in LAW no . CARDINAL\/CARDINAL - which provides , inter alia , that arbitration is to constitute the sole means of resolving disputes concerning foreign investment - confers constitutional status on such arbitration ( LAW , edited by PERSON and PERSON , GPE \/ GPE , PERSON , DATE , p. CARDINAL ) .","ORG LAW provides , inter alia , as follows :","\" The plaintiff may withdraw the action without the consent of the defendant before the latter has filed pleadings on the merits of the case . He may not so withdraw at a later stage if the defendant objects to the withdrawal on the ground that he has a legitimate interest in the proceedings being concluded by a final decision . \"","\" The effect of the withdrawal of the action is that it shall be deemed never to have been brought ... \"","The VIIth section of LAW ( Articles CARDINAL - CARDINAL ) deals with arbitration . The relevant provisions are as follows :","\" The arbitrator ... shall , unless stipulated otherwise in the arbitration clause , file the original of the arbitration award with the registry of ORG within whose jurisdiction the decision was given ... \"","\" CARDINAL . The ordinary remedies do not lie against arbitration awards .","The arbitration agreement may specify an appeal against the arbitration award before different arbitrators ... , but it must at the same time define the conditions , the time - limit and the procedure to be followed for the exercise of such a remedy and for the decision thereon . \"","\" If the arbitration agreement does not specify the appeal provided for in LAW para . CARDINAL or if the time - limit for filing such an appeal has expired , the arbitration award shall become final ... \"","\" The arbitration award may be annulled , in whole or in part , only by judicial decision and on the following grounds :","( CARDINAL ) where the arbitration agreement is void ;","( CARDINAL ) where it was made after the arbitration agreement had ORG ceased to be valid ;","( CARDINAL ) where the arbitrators were designated in breach of the ORG terms of the arbitration agreement or of the statutory provisions ... ;","( CARDINAL ) where the arbitrators exceeded the powers attributed ORG to them under the arbitration agreement or by statute ;","( CARDINAL ) where the provisions of Articles CARDINAL para . CARDINAL , CARDINAL and ORG have been infringed ;","( CARDINAL ) where it is contrary to public policy and morality ;","( CARDINAL ) where it is incomprehensible or where it contains ORG contradictory provisions ;","... \"","\" CARDINAL . Enforcement may be effected solely pursuant to an enforceable decision .","The following decisions shall be enforceable :","...","( b ) arbitration awards ;","... \"","\" CARDINAL . Enforcement may be effected solely on the basis of the copy of the enforceable decision bearing the stamp conferring authority to execute ...","Endorsement with the stamp conferring authority to execute shall be effected :","...","( d ) in respect of arbitration awards by the judge of the First Instance Court ... ;","... \"","Law no . CARDINAL\/CARDINAL , which was enacted pursuant to LAW CARDINAL of the LAW , made possible the revision or revocation of any administrative measure of ratification , issued DATE and DATE , and any contract concluded by the ORG during that period with a legal or a natural person and concerning the investments governed by Legislative Decree no . CARDINAL\/CARDINAL . Such measures or contracts were to be revised or terminated where they were incompatible with the LAW or other laws or contrary to morality , and prejudicial to the interests of the ORG , consumers and the national economy .","The contracts were to be terminated where it proved impossible to revise them in their entirety . Termination could be effected at the written request of the person concerned or unilaterally by the ministerial committee on the economy .","Article CARDINAL para . CARDINAL of the PERSON described the consequences of termination in the following terms :","\" Following the termination of a contract ... the special privileges and agreements shall cease to have effect and the undertaking or investment shall be subject to the ordinary laws governing ordinary undertakings and investments ... \""],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113805","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2012,"docname":"CASE OF BARI\u0160I\u010c v. SLOVENIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and lives in PERSON .","The applicant , a retired captain , worked for ORG ( ORG plovba ORG . ) , a ORG - owned company , from DATE until DATE and from DATE until DATE . On DATE the applicant concluded a temporary contract of work , renewed several times until DATE , with ORG , GPE , GPE , CARDINAL of the parent companies of ORG In DATE the applicant retired due to his disability and back pain .","On DATE the applicant instituted proceedings before ORG against ORG and ORG , seeking recognition of his permanent work status since DATE , his reinstatement and a pecuniary award , inter alia , for the loss of wages .","After CARDINAL hearings , on DATE ORG dismissed the applicant \u2019s claim . Both parties appealed .","On DATE the Higher ORG upheld both appeals in part and remitted the case for re - examination . The applicant lodged an appeal on points of law against the rejected part of the appeal .","On DATE ORG dismissed the applicant \u2019s appeal on points of law . He lodged a constitutional complaint .","In the framework of the remitted proceedings , on DATE ORG dismissed the applicant \u2019s claim . He lodged an appeal .","NORP On DATE the second - instance court upheld the applicant \u2019s appeal in part and amended the first - instance decision . He lodged an appeal on points of law .","On DATE ORG rendered a decision rejecting the applicant \u2019s appeal . He lodged a constitutional complaint .","On DATE ORG dismissed the applicant \u2019s constitutional complaint ( see paragraph CARDINAL above ) .","On DATE ORG dismissed the second constitutional complaint ( see paragraph CARDINAL above ) .","On DATE the applicant instituted proceedings against ORG and against ORG , seeking a declaration of employment since DATE , social cover and payment of salaries due since DATE . He also requested an interlocutory injunction .","On DATE ORG dismissed the applicant \u2019s request for an interlocutory injunction concerning the termination of his contract and social cover . He lodged an appeal against this decision which was rejected on DATE .","After CARDINAL hearings , on DATE ORG dismissed his claim . He lodged an appeal .","On DATE the second - instance court rejected his appeal . He lodged an appeal on points of law .","On DATE ORG rejected the appeal . He lodged a constitutional complaint on DATE and the proceedings appear to be still pending .","On DATE the applicant instituted proceedings before ORG against a decision of the Pension and Invalidity Insurance Fund .","DATE and DATE CARDINAL hearings were held and CARDINAL experts appointed .","At the last hearing the first - instance court delivered a judgment upholding the applicant \u2019s claim in part . The defendant appealed .","On DATE the Higher ORG upheld the applicant \u2019s appeal in part and amended the first - instance judgment .","On DATE the applicant instituted proceedings before ORG challenging a decision of ORG issued on DATE .","On DATE the applicant amended his claim by also challenging a decision of ORG issued on DATE .","On DATE the first - instance court decided that the proceedings should be separated ( reference number of the new set of proceedings Ps DATE ) .","On DATE the first - instance judgment was rendered and his request was upheld in part . The applicant appealed .","On DATE ORG upheld his appeal in part and modified the first - instance judgment .","Following the decision of CARDINAL DATE ( see paragraph CARDINAL above ) ORG issued a judgment on DATE . The applicant \u2019s request was upheld in part and the remainder remitted for re - examination before ORG . The defending party appealed .","On DATE ORG upheld the appeal and remitted the case for re - examination before the firstinstance . The proceedings appear to be still pending .","On DATE the applicant instituted proceedings before ORG challenging a decision concerning his unemployment benefits and payment of social security .","On CARDINAL DATE the latter rendered a judgment , dismissing the applicant \u2019s request . This decision was served on the applicant on DATE . He did not appeal .","On DATE the applicant started proceedings against the Pension and Invalidity Insurance Fund challenging a decision on payment of his salaries .","On DATE ORG rejected the applicant \u2019s claim . This decision was served on the applicant on DATE . He did not appeal .","For relevant domestic law see PERSON v. GPE ( ( dec . ) no . CARDINAL , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102634","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2011,"docname":"CASE OF SOMOGYI v. HUNGARY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-1-a;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant was sentenced to DATE imprisonment for armed robbery by ORG in GPE . ( ORG subsequently held that the unfairness of the underlying proceedings gave rise to a violation of LAW by the NORP authorities and awarded the applicant just satisfaction : PERSON v. GPE , no . CARDINAL\/CARDINAL , ORG ) . The end date of this sentence was DATE .","On DATE the applicant was transferred to GPE . On DATE ORG in GPE held that he was to serve the remainder of his sentence under a strict regime in a NORP prison ( fegyh\u00e1z ) and that he could be released on parole after serving CARDINAL of the term , i.e. on DATE .","The applicant appealed . On DATE the Attorney ORG intervened in the case , filing a motion for remedy in support of the applicant . The ORG argued that the service of the applicant 's sentence under a strict regime constituted an undue aggravation of his penal situation , in breach of LAW , which entailed that he could be released on probation only belatedly .","On DATE ORG quashed ORG decisions concerning the regime of the applicant 's transferred sentence and his conditional release , holding that they were unlawful . It held that the best approximation of the NORP sentence in NORP law was to have imposed a medium regime ( b\u00f6rt\u00f6n ) on the applicant for the remainder of his prison term , release on parole then being possible after having served DATE of the sentence .","On DATE the applicant was released .","Subsequently , the applicant brought an official liability action against ORG . He claimed compensation for the fact that , because of that court 's wrong reconciliation of the NORP and NORP penitentiary rules , he had been released on parole only on DATE , whereas under the medium regime he could have already been released in DATE . He also sought damages for having erroneously spent DATE and DATE in a strict - regime prison .","After divergent decisions , on DATE ORG finally dismissed the action . Concerning the belated release , it held that , although ORG interpretation of the law had been overruled , there was no indication that it had carried out the complex task of reconciling the inconsistent NORP and NORP rules with gross negligence giving rise to tort liability . As to the period wrongly spent in a strict - regime prison , it noted that the applicant had not substantiated that he had sustained any actual damage .","DATE , criminal proceedings were conducted against the applicant in GPE for the abuse of firearms . On DATE the ORG sentenced him to DATE suspended imprisonment . The court observed that unlicensed firearms had been found in the applicant 's car and , in so doing , it relied on the testimony of several witnesses . It took into account the extreme protraction of the case since DATE as a crucial mitigating circumstance entailing a suspended sentence .","On DATE ORG upheld this judgment . On DATE ORG dismissed the applicant 's petition for review .","The Convention on ORG ( NORP Treaty Series no . CARDINAL ) provides as follows :","\u201c The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions . ... \u201d","\u201c CARDINAL . In the case of continued enforcement , the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing ORG .","If , however , this sentence is by its nature or duration incompatible with the law of the administering ORG , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure shall , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG . \u201d","\u201c In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority : ...","d. shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-1","5-5"],"violated_bulletpoints":["5-1-a"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76066","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF BYRZYKOWSKI v. POLAND","importance":2,"conclusion":"Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant \u2019s CARDINAL-year - old wife was about to give birth to their child . She was admitted to a hospital of the ORG at TIME As there was no progress in the delivery and the child showed signs of heart distress , on DATE at TIME a decision was taken to perform a caesarean section . Epidural anaesthesia was administered , as a result of which she went into a coma . All resuscitation efforts failed . The applicant \u2019s wife was subsequently transported to the intensive therapy unit , where she died on DATE .","A child PERSON was born by a caesarean section , suffering from serious health problems , mostly of a neurological character . He requires permanent medical attention .","On DATE the applicant , represented by his father , requested that an investigation of the causes of his wife \u2019s death be instituted . His request was complied with on DATE . On DATE a post mortem was carried out . A medical opinion prepared immediately thereafter noted , among others , the necessity of obtaining a medical expert opinion as to the circumstances which had led to her death .","On DATE the Wroc\u0142aw - Krzyki District Prosecutor requested that the medical records of the applicant \u2019s wife should be submitted to the prosecuting authorities .","On DATE the applicant was interviewed by ORG .","On DATE the Wroc\u0142aw - Krzyki District Court , at the request of ORG , released the physicians who had dealt with the delivery from their obligation to respect professional secrecy in order to obtain their testimony .","On DATE , CARDINAL , DATE ORG questioned medical staff dealing with the delivery and treatment of the applicant\u2019 s wife as to the circumstances of her death .","NORP In a letter submitted on DATE the applicant requested ORG to hear additional witnesses . On DATE the Wroclaw - Krzyki District Prosecutor questioned CARDINAL other witnesses .","On DATE ORG , having regard to the results of the inquiry , instituted a criminal investigation into a suspected offence of manslaughter , punishable under LAW .","On DATE ORG decided to obtain a medical expert opinion from ORG as to the treatment administered to the applicant \u2019s wife .","On DATE and DATE and CARDINAL March CARDINAL the ORG heard further witnesses .","In a letter of DATE ORG returned the case - file , explaining that it would not be able to prepare the opinion . On DATE ORG decided to obtain a medical expert opinion from ORG . Apparently the investigations were later stayed .","In DATE ORG resumed the investigations , having obtained an expert opinion prepared by CARDINAL medical experts of ORG .","By a decision of DATE ORG discontinued the investigations considering , in the light of the medical records , the testimony of the witnesses and the medical expert opinion , that the medical staff concerned had no case to answer . However , on the applicant \u2019s appeal , the investigations were subsequently resumed by a decision of DATE . ORG considered that the investigations had been discontinued prematurely , without all necessary evidence having been taken and without the facts relevant for the decision having been sufficiently established . He decided that the anaesthesiologists dealing with the delivery should be questioned again in order to elucidate discrepancies between their testimony and that further experts should be appointed with a view to establishing whether the conditions of the delivery could have had a negative impact on the health condition of the applicant \u2019s son .","On DATE and DATE ORG questioned again the CARDINAL anaesthesiologists involved in the treatment of the applicant \u2019s wife .","On DATE ORG decided to obtain another expert opinion from ORG .","Four experts of ORG prepared an opinion dated DATE and submitted it to ORG on DATE , noting , inter alia , that the applicant \u2019s son had died as a result of the damage he suffered during the delivery . The experts concluded , referring to the medical records of the case , that no criminal offence had been committed , the failure to reverse the result of anaesthesia not being a consequence of medical negligence .","In a letter dated CARDINAL DATE ORG informed ORG about an editorial error in its opinion in so far as it contained a reference to the death of the applicant \u2019s son .","On DATE ORG questioned another witness . In a letter submitted on DATE the applicant and his father contested the medical expert opinion of DATE containing among other things the wrong information about the death of the applicant \u2019s son as a result of damage he had suffered during the delivery . They submitted that this error indicated that the opinion had not been prepared with the requisite care and attention to detail .","On DATE ORG decided to obtain an additional expert opinion from ORG . On DATE this opinion was submitted . It further contained answers to the CARDINAL questions posed by the applicant .","On DATE the ORG discontinued the investigations . In his decision he relied on the medical expert opinion which stated that the treatment of the applicant \u2019s wife and the handling of the delivery , i.e. the caesarean section , epidural anaesthesia and reanimation had been carried out properly and had been adequate given her state of health and the circumstances . They could not have contributed to the deterioration of her condition or led to her subsequent death .","On DATE the applicant appealed against the decision of DATE .","On CARDINAL DATE the Wroc\u0142aw - Krzyki District Court upheld the contested decision . It considered that the evidence obtained during the investigation had not provided any grounds on which to bring charges against the medical staff . It also referred to CARDINAL medical expert opinions ( from ORG , PERSON , PERSON and FAC ) according to which the medical treatment of the applicant \u2019s wife during and after the delivery of birth was not improper . Consequently , no action or omission of a criminal character could have caused her death .","On DATE the Wroc\u0142aw - Krzyki District Court rejected the applicant \u2019s appeal of CARDINAL DATE against the decision of CARDINAL DATE .","On DATE ORG , at the applicant \u2019s request , questioned a new medical expert in connection with the circumstances of the death of the applicant \u2019s wife .","On DATE ORG resumed the investigations , which had been terminated by the decision of DATE .","On DATE , DATE , CARDINAL , DATE , CARDINAL May and DATE ORG questioned the medical staff involved in the dealing with the delivery .","On DATE the ORG submitted to the prosecuting authorities CARDINAL expert opinions prepared for the purposes of disciplinary proceedings which were pending at that time ( see \u00a7 \u00a7 DATE and CARDINAL below ) .","On DATE ORG ordered another expert opinion from ORG . Subsequently , it urged the Institute several times to accelerate the preparation of the opinion . On DATE the opinion , prepared by CARDINAL experts , was submitted to ORG . The opinion also contained answers to the CARDINAL questions posed by the applicant .","On DATE ORG interviewed CARDINAL witness .","On DATE the applicant submitted an unsolicited expert opinion prepared by CARDINAL physicians .","On DATE ORG discontinued the investigations . He had regard , inter alia , to the medical expert opinion prepared by experts from ORG , which had stated that the caesarean section , epidural anaesthesia and reanimation had been adequate , given to the condition of the applicant \u2019s wife and the circumstances .","CARDINAL On DATE the applicant appealed against this decision .","On DATE the ORG decided to quash the contested decision . The Prosecutor observed that the evidence gathered so far in the case was incomplete in that it did not allow for the establishment of the relevant facts . Certain facts relevant for the assessment of the case had to be established , in particular the kind and exact amounts of medication administered to the applicant \u2019s wife before the caesarean section . Further , certain discrepancies between various depositions of the anaesthesiologist PERSON had to be elucidated . It also seemed that there might have been some errors in the medical records which should be further investigated .","On DATE , DATE and CARDINAL DATE the District Prosecutor heard witnesses . On CARDINAL DATE experts from GPE who had prepared the opinion for the purposes of the disciplinary proceedings pending before ORG were also questioned . On DATE and CARDINAL DATE other witnesses were heard .","On an unspecified date in DATE the prosecuting authorities requested that an additional expert opinion be prepared by ORG of ORG . This opinion is currently being prepared and the file of the investigations has been sent to the Institute .","The proceedings are pending .","On DATE the applicant submitted a request to ORG to initiate disciplinary proceedings against the anaesthetist , PERSON On DATE ORG started an inquiry concerning the causes of death of the applicant \u2019s wife .","On DATE the inquiry was stayed , the ORG having regard to the parallel criminal investigations which were being conducted at that time by ORG .","On DATE , after the decision of ORG DATE concerning the discontinuance of the criminal proceedings had become final , the proceedings were resumed .","On DATE the ORG requested additional expert opinions from CARDINAL experts from GPE . The opinions were submitted on DATE .","On DATE ORG decided to transmit the disciplinary case concerning the death of the applicant \u2019s wife to the ORG .","On DATE the ORG transmitted the case - file to ORG .","On DATE ORG in PERSON stayed the proceedings against GPE pending the outcome of the further criminal investigations concerning the death of the applicant \u2019s wife . It had regard to the fact that on DATE PERSON had allowed the applicant \u2019s appeal against a decision of DATE to discontinue the proceedings ( see \u00a7 CARDINAL above ) . The court further observed that a motion to impose disciplinary sanctions had been submitted to that court by ORG only on DATE . The court noted that the disciplinary liability of the physician concerned had become prescribed under the relevant provisions of ORG . However , as the criminal investigations were still pending , the period of prescription \u201c could be prolonged \u201d , pursuant to the provisions of LAW .","The proceedings are pending .","On DATE the applicant , acting also on behalf of his son PERSON , lodged a compensation claim against the hospital and against the hospital \u2019s insurance company with ORG . He claimed a DATE pension for the child , just satisfaction for non - pecuniary damage they had suffered as a result of death of their mother and wife , and compensation for the funeral costs . He argued that his wife \u2019s death and his son \u2019s health problems had resulted from negligence in the handling of the anaesthesia administered to his wife during the birth . In passing , he observed that the experts who had prepared the opinion for the criminal investigation had stated that his son had also died ; this was an example , in his view , of how badly the opinion had been prepared .","On DATE the applicant was partly exempted from a court fee .","At a hearing held on DATE ORG ordered that the full medical records of the applicant \u2019s wife \u2019s case be submitted in evidence and that the file of the criminal investigations which were pending at that time be also submitted .","On DATE ORG held a hearing . The applicant informed the court that the disciplinary proceedings were pending before ORG . The court decided to request information about the state of the proceedings and any possible expert opinions from the ORG .","In DATE the applicant requested the court to admit in evidence an expert opinion he had privately commissioned before the lodging of the civil case ( see \u00a7 DATE above ) . This request was apparently refused .","By a decision of DATE ORG stayed the proceedings until the end of the disciplinary proceedings . The court referred to CARDINAL opinions which had been prepared in these proceedings and which indicated that it was likely that certain irregularities had indeed taken place when handling the delivery . The court considered that in these circumstances it was reasonable to stay the proceedings until the disciplinary proceedings had come to an end as their outcome was relevant for the further conduct and , possibly , the outcome of the civil case .","The applicant appealed , arguing , inter alia , that the disciplinary court of ORG which could eventually be called upon to give a ruling in this case , was composed of CARDINAL physicians and just CARDINAL judge , which rendered these proceedings inherently unfair in that it was unlikely that it would be fully impartial .","By a decision of DATE ORG rejected the appeal as having been lodged outside the applicable time - limit .","By a letter of CARDINAL DATE the applicant applied for the resumption of the stayed proceedings , arguing that in any event the civil court was not bound by the conclusions of the organs of the professional association of physicians .","By a decision of CARDINAL DATE ORG refused to resume the stayed proceedings on the ground that a team of specialists had been charged with the preparation of the opinion for the purpose of the disciplinary proceedings in order to assess the medical procedures followed in the case and such opinions had already been partly prepared . Their conclusions indicated possible negligence on the part of the medical staff involved ; in addition , the medical records of the applicant \u2019s late wife had been included in the files of the disciplinary proceedings , which were already well advanced . Hence , a decision of the disciplinary court could influence the judgment to be given in the civil proceedings .","On DATE the applicant requested the civil court to take measures in order to have the disciplinary proceedings accelerated .","In a letter of DATE ORG in PERSON informed ORG that the proceedings were still pending , that on DATE charges would be brought against PERSON and that the files of the case would be sent , together with a motion for the imposition of a disciplinary penalty , to ORG of ORG .","On DATE ORG informed the applicant that the civil proceedings would be resumed after the disciplinary proceedings had come to an end .","On DATE a motion to have a disciplinary penalty imposed on PERSON was submitted to ORG .","By a letter of DATE , in reply to a query submitted by the civil court on DATE , the Regional Agent for Disciplinary Matters of the local ORG reiterated that on DATE the case had been submitted to the disciplinary court .","By a letter of CARDINAL DATE the applicant requested the civil court to resume the proceedings . The applicant emphasised that there had been no progress whatsoever in the disciplinary proceedings since DATE , when the disciplinary case had been brought to the court . This delay could only be attributed to the unwillingness of ORG to conduct an effective investigation into the medical negligence which was arguably involved in his case . He invoked the possibility that any disciplinary liability would be prescribed as a result of the lapse of time .","On DATE ORG dismissed the applicant \u2019s request for the proceedings to be resumed , considering that they should remain stayed until the criminal proceedings pending before FAC were completed .","The proceedings are pending .","The Chambers of Physicians\u2019 Act of CARDINAL DATE established ORG as a professional organisation of physicians . Membership of a local ORG is mandatory . The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the ORG , i.e. agents for disciplinary matters and disciplinary courts . Agents and members of the courts for each region are elected by members of a local chamber . The Chief Agent for ORG and ORG are elected by ORG , composed of delegates of local chambers .","DATE . Pursuant to LAW , the following penalties may be imposed in disciplinary proceedings : a warning , a reprimand , suspension of the right to practise medicine for a period from DATE and striking off the register of physicians .","The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on DATE .","NORP Under this Order , the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed . When investigating such a complaint , the agent may question a physician charged with professional misconduct , may appoint experts and question witnesses , and take such other evidence as he or she sees fit . A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant .","If information existing at the time when investigations are instituted , or gathered in the course of an investigation , is sufficient to charge a physician with professional misconduct , an agent shall draw up a motion to the court for a disciplinary penalty to be imposed , containing a detailed description of the alleged offence and written grounds .","Pursuant to LAW , the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed .","A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters . A further refusal of the Chief Agent may be appealed against to ORG .","Under LAW , if the court , having received a motion for a penalty to be imposed , decides that the case is ready for examination at a hearing , it orders that a hearing be held . A physician is summoned to a hearing , whereas his defence counsel and the agent are informed of its date .","Under LAW , in disciplinary proceedings the complainant is entitled to : submit a request for evidence to be taken , lodge with the disciplinary court an appeal against the agent \u2019s decision to discontinue the proceedings , and lodge an appeal against a decision of a first - instance court on the merits , but only on the question of responsibility . The complainant is entitled to have access to the case - file , but the agent can limit this access to documents which are not covered by medical secrecy .","DATE . Pursuant to LAW , the proceedings before the court are public for members of ORG .","Under LAW of LAW Civil Code , the ORG is liable for damage caused by its agents in the exercise of their functions . There is established case - law of the NORP courts to the effect that this liability of the ORG includes also liability for damage caused by medical treatment in a public system of medical care , run either by the ORG or by the municipalities .","LAW provides that a person who unintentionally causes the death of a human being shall be sentenced to imprisonment for DATE .","On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the DATE Law \u201d ) entered into force . Under LAW read in conjunction with LAW , a party to pending proceedings may ask for the proceedings to be speeded up and\/or request just satisfaction for their unreasonable length .","The PERSON lays down various legal means designed to counteract and\/or provide redress for undue delays in judicial proceedings .","The relevant part of LAW reads :","The relevant parts of DATE provide :","\u201c CARDINAL . The complaint shall be examined by the court immediately above the court conducting the impugned proceedings . \u201d","DATE , in its relevant part , reads :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Article CARDINAL provides for measures that may be applied by the court dealing with the complaint . The relevant part provides :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a specified time . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Article CARDINAL provides for an additional compensatory remedy :","\u201c CARDINAL . A party whose complaint has been allowed may seek compensation from ORG ... for the damage it suffered as a result of the unreasonable length of the proceedings . \u201d","Article CARDINAL further specifies :","\u201c A party which has not lodged a complaint about the unreasonable length of the proceedings under LAW ) may claim \u2013 under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended . \u201d"],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84572","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF RYGALSKI v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Stanislav Pavlovschi","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant lodged a complaint with ORG . He claimed that his neighbour , who lived upstairs , had carried out illegal construction work as a result of which the walls of the applicant 's flat had begun to crack .","On DATE an on - site inspection was conducted by the authorities .","On DATE the applicant lodged a complaint about the inactivity of the authorities with ORG ( PERSON ) .","On DATE the ORG discontinued the proceedings . It was found that the work had been carried out in conformity with the law . The applicant appealed to ORG .","On DATE the applicant 's complaint about inactivity was transferred to ORG . It appears that the proceedings concerning this complaint remained dormant until DATE .","On DATE ORG quashed the decision of DATE and remitted the case .","On DATE the applicant lodged a complaint about inactivity with the Minister of the Interior .","On DATE his complaint of CARDINAL DATE was transferred to ORG .","On DATE his complaint was transferred to ORG .","On DATE ORG found the complaint about inactivity , not specifying which one , well - founded and fixed a new time - limit for the authorities to take all necessary action .","On DATE ORG issued a decision . It found that the work had been brought into conformity with the law . The applicant appealed .","On DATE the applicant again lodged a complaint about inactivity .","On DATE ORG quashed the decision of DATE and remitted the case . The applicant appealed to ORG .","On DATE ORG found the applicant 's complaint about inactivity of DATE well - founded and fixed a new DATE time - limit for the authorities . However the administrative authorities do not appear to have complied with the timelimit .","Eventually , as it transpires from the submissions of the applicant as well as from the observations submitted by the Government , on DATE ORG gave a judgment on the merits of the applicant 's case . It further transpires that the applicant failed to lodge a cassation appeal with ORG . Hence , the judgment of DATE became final .","For a presentation of domestic law , see : PERSON v. GPE , no . CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , DATE .","NORP The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84166","languageisocode":"ENG","respondent":"NOR","branch":"ADMISSIBILITY","date":2007,"docname":"HAARVIG v. NORWAY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , Attorney , Attorney ORG ) .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant graduated as a medical doctor . On DATE he was granted a licence to perform duty service ( turnustjeneste ) at a hospital and thereafter he and a friend started to serve at ORG .","On DATE the applicant was arrested and detained on remand for DATE due to his and a friend \u2019s involvement in CARDINAL incidents , which included notably an attempt of burglary , violence against the police and consumption of hashish and ecstasy .","On DATE ORG notified the applicant that they considered suspending and withdrawing his duty service licence , following which the applicant withdrew from his duty service and was granted special leave with salary , until he went on sick leave in DATE .","On DATE ORG ( byrett ) convicted the applicant for his involvement in attempts of burglary ( Articles CARDINAL and CARDINAL ) , obstruction of the police in their attempt to arrest his accomplice ( Article CARDINAL ) , violence against the police ( Article CARDINAL ) and consumption of hashish and ecstasy ( section CARDINAL of LAW ) and sentenced him to CARDINAL months\u2019 imprisonment ( unconditional ) . On the other hand , ORG rejected the prosecutor \u2019s request to sentence the applicant under LAW ( CARDINAL ) of LAW to a loss of right to practice as a doctor .","The applicant appealed against the conviction but ORG ( lagmannsrett ) refused him leave to appeal on DATE . As the applicant did not lodge an appeal against that decision within the statutory DATE time - limit ( running from notification ) , the decision became final on DATE or on some date shortly thereafter .","The applicant served his prison sentence from DATE . Thereafter he was again on sick leave .","In the meantime , on DATE , the applicant made a request for being re - instated as an intern but , on DATE , ORG ( ORG ) decided to suspend his licence under LAW pending a possible revocation under LAW CARDINAL of LAW DATE ( GPE , hereinafter referred to as \u201c the DATE LAW ) . The decision was taken primarily on the ground of the matters in respect of which he had been convicted and which were deemed \u201c conduct unworthy of a doctor \u201d for the purposes of LAW CARDINAL . Regard was also had to certain irregularities noted with regard to various instances of prescription of medicines and the storage of medical journals , which , it is undisputed , played a secondary part in the decision .","On DATE the applicant instituted proceedings before ORG asking it to quash the suspension of DATE . ORG notes that , pursuant to CARDINAL of LAW , such an action was to be examined under LAW of the Code of Civil Procedure concerning judicial appeals against administrative decisions .","On DATE ORG repealed the suspension considering that the applicant was no longer deemed unsuited to perform the profession of medical doctor and issued a disciplinary warning . In DATE he ended his sick leave and resumed his duty service .","In view of this change , the applicant altered his suit before ORG to concern a claim for compensation on account of the suspension ( section CARDINAL of the CARDINAL Act ) .","On DATE ORG rejected the applicant \u2019s compensation claim , finding that his suspension had not been unlawful or contrary to LAW .","On appeal , that judgment was upheld by ORG on DATE .","The applicant \u2019s further appeal was rejected by ORG ( PERSON ) on DATE . ORG unanimously found that the suspension did not violate LAW , but was divided ( CARDINAL in favour and CARDINAL against ) as to whether the suspension could be regarded as lawful under LAW notwithstanding the ORG rejection in the trial of the prosecution \u2019s request to deprive the applicant of his right to practice .","PERSON , who gave the reasons for the majority , held , in so far as the issue of double jeopardy under LAW No . CARDINAL was concerned , that the suspension did not constitute a criminal matter attracting the application of this provision , having regard to the CARDINAL criteria for \u201c criminal charge \u201d in LAW set out in the PERSON and Others v. the GPE judgment of DATE ( Series A no . CARDINAL ) . Therefore , the revocation or the suspension of a licence to practice as a doctor , on the ground that the legal conditions for practicing no longer were fulfilled , did not constitute a criminal punishment for the purposes of LAW No . CARDINAL to the LAW , which therefore did not apply . The minority agreed with this conclusion .","In so far as concerned the issue under LAW reasoning , which the other justices of the majority endorsed in the main , included the following observations :","\u201c ( CARDINAL ) It would in my view be useful to start by providing an overview of the NORP system for granting and revoking permits to practise as a doctor . I should note that authorisation is the term used for the most comprehensive permit to practise as a doctor . A licence , including an intern \u2019s licence as applicable in our case , on the other hand , provides more limited rights . Nevertheless , the legal issues raised by the case will be the same .","( CARDINAL ) According to section CARDINAL ( CARDINAL ) of LAW of DATE , a precondition for the granting of an authorisation to practise as a doctor was that the candidate was \u2018 of good conduct\u2019 . Under section CARDINAL of the LAW an authorisation could be withdrawn by civil judgment where the doctor was considered unfit to conduct his practice on the grounds of insanity or weakening of the mental faculties or abuse of strong drink or anaesthetising agents . The grounds for loss of authorisation were listed in exhaustive detail and accordingly legal action with respect to revocation could not be brought were the doctor subsequently to be found guilty of breach of the requirement as to good conduct . In the event of conviction of criminal offences , however , deprivation could take the form of a disqualification pursuant to LAW . This general provision , which is now LAW , provides the legal authority to sentence a person found guilty of a criminal offence in the following way if the public interest so requires :","\u2018 Loss for a specific period not exceeding DATE or in perpetuity of the right to hold office or to carry out any activity or occupation that the defendant has shown himself or herself to be unfit for or might conceivably abuse or for which a high degree of public confidence is required . ... \u2019","( CARDINAL ) In the DATE Act , which applies in our case , the requirement as to good conduct as a precondition for authorisation and licensing was continued , with the difference that breaches of this condition would now constitute direct grounds for revocation under LAW . LAW CARDINAL ) made it a condition for the grant of authorisation or a licence that the medical practitioner was not in a situation that could lead to the revocation of the authorisation or licence . This was regulated in LAW CARDINAL , the first paragraph of which read as follows :","\u2018 An authorisation or licence may be revoked if a doctor is not fit to practise medicine on the grounds of serious mental illness , psychological or physical debility , long absence from the profession , the misuse of alcohol , drugs , or other substances with similar effects , grave lack of professional insight , improper medical practice , or conduct unworthy of a ORG","( CARDINAL ) Section CARDINAL provided the legal authority for the suspension of an authorisation or licence where there were just and sufficient causes to suppose that grounds existed for revocation . Under section CARDINAL , the decision to revoke was no longer taken by the courts but by the Ministry , generally after an opinion had been obtained from ORG . This authority was subsequently delegated to ORG . According to LAW , the decision could not be appealed but it could be brought before a court of law , which could review all aspects of the matter . If a suspension or revocation proved to be invalid or was set aside on other grounds , CARDINAL provided that the doctor could claim damages for losses sustained in accordance with the usual rules .","( CARDINAL ) This system is continued in the current LAW of DATE No . CARDINAL - which came into force on DATE . ...","( CARDINAL ) Generally the system exists in parallel with the system of sanctions provided for under criminal law . This relates to the different guilt requirements under the CARDINAL systems and to the fact that the objectives and subjects for assessments are different , see Proposition No . CARDINAL to the PERSON ( DATE ) , pp . CARDINAL and CARDINAL . It is assumed that as a general rule the public health authorities may consider revocation , even if health personnel have not been disqualified by judgment in a criminal case . It is emphasised that the regulatory authority shall be concerned with protecting patients against unqualified practitioners , not with punishment .","( CARDINAL ) In light of the inter - relationship between the regulations discussed above , [ the applicant ] \u2019s alternative submission relating to LAW . CARDINAL may also have a bearing on corresponding questions under LAW . Accordingly , in my view it is appropriate to consider this aspect first .","( CARDINAL ) The question is whether the suspension decision , which was adopted after [ the applicant ] had been convicted of the actions in question , but acquitted of the plea that he be disqualified , must be viewed as a re - prosecution in contravention of LAW No . CARDINAL . That the facts underlying the suspension decision in all essential respects are the same as those underlying the criminal conviction , is not disputed .","( DATE ) Before I continue I reiterate that the suspension of the licence presupposed the existence of a reasonable basis for assuming that \u2018 grounds existed for revocation\u2019 . Although this case concerns the suspension of a licence , and a revocation , the real issue is nevertheless whether LAW No . CARDINAL serves as an obstacle to the revocation of a licence where a judgment in a criminal case has already been rendered with respect to the same actions and where the plea for disqualification has not been allowed .","( CARDINAL ) In light of ORG case law as it now stands , the issue that must be considered will be identical to the question of whether this constitutes punishment pursuant to LAW , see most recently the judgment of DATE in case No . CARDINAL HR-CARDINAL - CARDINAL-A paragraph DATE . As noted in paragraph CARDINAL of the said judgment , this question must be decided on the basis of the so - called PERSON criteria , ( see PERSON and Others v. the GPE , judgment of DATE , Series A no . CARDINAL ) . How is the situation classified under national law , the nature and purpose of the statutory rule that was applied and the content and severity of the sanction in question .","( CARDINAL ) It will be apparent from my introductory discussion that neither the revocation nor the suspension of a permit to practise as a doctor will constitute punishment under NORP law .","( CARDINAL ) As regards the second PERSON criterion - the nature and purpose of the provision - it is clear to me that the theme for assessment will be the standard specified in section CARDINAL of the DATE Act by reference to section CARDINAL , which I have reproduced in my introductory overview . The overarching standard is whether the doctor is unfit to practise his profession , in our case on the grounds of \u2018 conduct unworthy of a GPE . Although the conduct to which the standard is directed will frequently involve - and in our case in fact does involve - criminal actions , I am not inclined to agree with [ the applicant ] in his submission that it is the criminal actions that make up the nature of the provision . The theme for assessment is whether the doctor satisfies the requirements for holding a permit to practise the profession and continuing to practise the profession .","( CARDINAL ) The provisions of the DATE Act are aimed specifically at a professional group that is dependent upon a special degree of confidence in the mind of the public and accordingly requires a public permit in order to practise . The legislative history of the LAW strongly emphasised the need for doctors to observe a high professional and ethical standard and the need for society to control who practises the profession by requiring a public permit to be held and , moreover , that such permits may be revoked if the preconditions are no longer fulfilled ( see inter alia NOU ( NORP Official Report ) CARDINAL pp . CARDINAL and DATE ) . ORG therefore proposed the continuation of the existing scheme , but added that a breach of the precondition as to good conduct could result in revocation . The Ministry concurred ( see ORG . CARDINAL to the PERSON ( DATE ) , p. CARDINAL ) . The ORG emphasised that the grounds for loss of an authorisation or licence would need to encompass more than criminal actions . The ORG stated as follows :","\u2018 There should also be room for revoking an authorisation or licence in the case of conduct or actions that are not criminal , but this should occur only rarely . On the other hand , not every criminal action should lead to revocation ; here as in other contexts the doctor must be found unfit to practise the profession . The blameworthy circumstances must normally relate to his or her medical practice . Nevertheless , there may be instances in which conduct outside the profession may entail that the doctor does not enjoy the necessary confidence , for instance if he or she commits theft , embezzles in the context of his or her practice , defamation or assault of other persons etc.\u2019","( CARDINAL ) As will be apparent from my introductory discussion of the provisions this object has at all times been of central importance and it is now expressly provided for in the purpose clause of ORG . The object of the provisions is not to punish persons who are in breach of the standard but rather to prevent them from causing their patients harm or violating the relationship of trust that must of necessity exist between the general public and the medical profession . This is expressly emphasised in Proposition No . CARDINAL to the PERSON ( DATE ) , p. CARDINAL , second column . In my assessment this is a long way from the domain of criminal law , a fact that the existence in most NORP countries of equivalent arrangements serves to emphasise .","( CARDINAL ) [ The applicant ] has submitted that disqualification pursuant to LAW , which is described as punishment , far and away serves the same purpose as the revocation provisions of LAW . This is indisputably correct , but will nevertheless not be of particular significance . I refer here to ORG ( GPE Retstidende- \u201c ORG . \u201d ) DATE p CARDINAL , paragraph CARDINAL , where a parallel of this nature was found not to be decisive with respect to rights vesting in an individual permit issued by the public authorities . Nor does the fact that the sanction is for actions that have already been performed change my assessment that this is primarily a civil law sanction . Finally I should also note that there is no direct link between the sanction in question and the preconditions for punishment , as was found to be the case in GPE . DATE p.CARDINAL , paragraph CARDINAL . As I have already noted , the overarching and decisive point is whether the doctor in question is unfit to practise the medical profession .","( DATE ) The third PERSON criterion - the content and severity of the sanction - can not lead to a different conclusion . Clearly , depriving a doctor of the right to practise will have a serious impact on that doctor . However , in decisions of this type , often referred to as disciplinary decisions , the point of departure has been that the sanctions in question must be very serious - in practice prison sentences , see ORG . DATE p. CARDINAL and , at p. CARDINAL , reference to PERSON v. GPE ( application no . CARDINAL ) , see also ORG . DATE p. CARDINAL , paragraph CARDINAL . A common point of departure has been that the decisions in question have been directed at a limited circle of people .","( CARDINAL ) No decision by ORG directly addresses the question of the revocation of a public permit to practise a profession . The ORG has referred to a number of dismissal decisions that indicate that this lies outside the domain of criminal law . As regards the revocation of a permit to conduct business , ORG held as follows in its dismissal decision in GPE v. GPE ( application MONEY ) , a case concerning the revocation of a taxi licence on the grounds of tax offences :","\u2018 ... The ORG considers that the revocation of the licence did not constitute a determination of a criminal charge against the applicant . Although it may be regarded as a severe measure , what was decisive for the revocation was the applicant \u2019s suitability to run a commercial taxi business , and , more specifically , whether he fulfilled the conditions therefore under administrative law provisions . Thus , the revocation can not be characterised as a penal sanction and the nature of the relevant proceedings can not be regarded as criminal ... \u2019","( CARDINAL ) The decision then refers to ORG v. GPE judgment of DATE , where the revocation of a liquor licence on the grounds of irregularities did not constitute a penal sanction .","( CARDINAL ) In NORP legal tradition the exercise of certain activities requires a public licence . The issuing of licences of this nature is , typically , an administrative activity . It would be inconsistent if the same did not apply to the revocation - reversal - of a licence of this nature where a recipient no longer fulfils the preconditions for holding the licence .","( CARDINAL ) Against this background it is clear to me that the revocation and suspension of a licence to practise as a doctor on the grounds that the statutory and necessary preconditions for continuing to practise this activity are no longer present does not constitute a penal sanction in ORG view . The question regarding the concrete application of LAW No . CARDINAL will therefore not arise . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69261","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF FUKLEV v. UKRAINE","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)","judges":"Zoryana Bortnovska","text":["The applicant was born in DATE and lives in GPE . He is a former employee of ORG , ORG ( \u201c the ORG \u201d ) . He worked at the ORG from DATE to DATE , when he was dismissed from his position as a senior engineer at his own request . At the time of his dismissal the applicant was not paid the wages owed to him .","In DATE a construction company , the Closed JSC PERSON ( hereafter the ORG ) , instituted bankruptcy proceedings against the ORG on account of its failure to comply with contractual obligations .","The bankruptcy proceedings were initiated on DATE by ORG ( \u201c the LOC \u201d ) . The applicant acted in these proceedings as a representative of the ORG .","On DATE the ORG declared the ORG bankrupt . It also established a liquidation commission to manage its debts . The liquidation commission consisted of representatives of ORG , ORG , ORG of ORG , ORG ( a ORG - owned bank ) and the ORG . The liquidators were obliged to elect the chairman and members of the liquidation commission within DATE .","On DATE the commission made an inventory of the ORG \u2019s property .","On DATE the liquidation commission elected Mr Bogushko as its chairman .","DATE and DATE , in accordance with the submissions of the parties , the liquidation commission was not in operation .","On DATE the then chair of the liquidation commission , PERSON , resigned .","On DATE the liquidation commission elected Mr PERSON as its chairman .","On DATE the President of the ORG decided that the bankruptcy proceedings concerning the ORG should be referred from Judge PERSON for consideration by another judge ( Judge PERSON ORG ) .","On DATE the President of ORG ( the \u201c ZRCC \u201d , former ORG as renamed in DATE as a result of \u201c small judicial reform \u201d ) , decided that the bankruptcy proceedings concerning the ORG should be referred for consideration from Judge PERSON ORG to another judge ( Judge PERSON ) .","On DATE the ZRCC found that the liquidation commission appointed in DATE had deviated from its duties . It also informed the members of the liquidation commission that they had incurred criminal liability for failure to comply with the judgments and decisions of the domestic courts .","On DATE , DATE and DATE , the ORG requested the liquidation commission to submit a report on the results of the operation .","On DATE the liquidation commission elected a new chairman , Mr Otryshko . The commission discussed the proposal for the friendly settlement of the ORG \u2019s debts . The new chairman of the commission submitted a report to the ZRCC that made no reference to the ORG \u2019s salary debts .","On DATE the ORG \u2019s shareholders agreed to enter into a friendly settlement with the creditors .","On DATE the liquidation commission decided to conclude a friendly settlement in the bankruptcy proceedings pending against the ORG .","On DATE the ZRCC held a hearing with a view to discussing the possible friendly settlement and the report by the liquidation commission . The hearing was adjourned until DATE .","On DATE the ZRCC terminated the bankruptcy proceedings concerning the ORG by way of a friendly settlement between the ORG and its creditors ( the ORG and ORG ) .","NORP In DATE the applicant instituted proceedings in ORG ( the \u201c ORG \u201d ) against the ORG , seeking the recovery of salary arrears .","On DATE ORG allowed the applicant \u2019s claims and ordered the ORG to pay him CARDINAL NORP hryvnas ( ORG ) .","NORP In DATE the applicant instituted proceedings in ORG , seeking compensation for the delay in the payment of salary arrears awarded to him by the decision of CARDINAL DATE . On DATE ORG rejected his claims as being unsubstantiated . On DATE ORG upheld that decision .","On CARDINAL DATE ORG of ORG served notice on the ORG to pay the applicant the sums due .","On DATE ORG rejected the applicant \u2019s additional claims for compensation for the delay in payment of salary arrears as it was unsubstantiated . That judgment was upheld on DATE by ORG .","On CARDINAL DATE ORG bailiffs ( \u201c the court bailiffs \u201d ) instituted enforcement proceedings in the case and requested the ORG to pay the applicant the sum due .","On DATE the court bailiffs requested the ORG to provide correct information as to its bank accounts , so that the sums due the applicant could be procured .","A resolution to initiate enforcement proceedings in the case was issued by ORG ( the \u201c bailiffs \u201d ) on DATE , following the transfer of jurisdiction for the enforcement from the court bailiffs .","On DATE the bailiffs informed the applicant that the judgment could not be executed immediately on account of the entry into force of the new LAW and the referral of all the enforcement proceedings from the jurisdiction of the courts to the jurisdiction of ORG .","On DATE the bailiffs initiated enforcement proceedings in the case .","On DATE the bailiffs informed the applicant that a request had been sent to the ORG on DATE concerning the inactivity of the liquidation commission . It also stated that no response had been received from the ORG .","On DATE and DATE the bailiffs informed the applicant that the writ of execution could not be sent to the liquidation commission as the commission did not exist de facto . It also informed the applicant that the writs of execution issued by ORG had only been received on DATE by the bailiffs .","On DATE and DATE the applicant complained about the non - enforcement of a judgment in his favour to ORG and ORG . On DATE ORG transmitted his complaints to ORG formerly ORG ( \u201c the ORG \u201d ) . On DATE the ORG forwarded his complaints to the ORG for a reply .","On DATE the bailiffs informed the applicant that the most recent chair of the liquidation commission was PERSON . They also stated that , in accordance with section CARDINAL of LAW , writs of execution had to be transferred to the liquidation commission from the bailiffs .","On DATE the bailiffs suspended the enforcement proceedings until the election of a new chairman of the liquidation commission and the formation of a new commission .","On DATE ORG of the LOC informed the bailiffs about the membership of the liquidation commission and its chairman ( Mr Otryshko ) . This information was to be provided to the applicant .","On DATE the bailiffs terminated the enforcement proceedings pending before them in the applicant \u2019s case by transmitting the writs of execution to the liquidation commission for the ORG .","On DATE the applicant complained to the bailiffs about the failure to enforce the judgment .","On DATE the bailiffs informed the applicant that they were no longer responsible for the enforcement of the judgment of CARDINAL DATE .","In DATE the judgment of DATE was partly enforced by the liquidation commission and the applicant was paid ORG CARDINAL in compensation .","On DATE the applicant complained to the ZRCC about the failure to enforce the judgment in his favour . By a letter of CARDINAL DATE , a judge of the PERSON informed the applicant of the friendly settlement in the case . She also stated that the applicant could not be considered a creditor of the ORG as he had not applied to the court in the course of the ORG bankruptcy proceedings to be declared a creditor . She also refused to provide him with documents concerning the bankruptcy proceedings in the case .","On DATE the applicant lodged complaints with the ORG concerning the failure to pay his salary arrears and the inactivity of the liquidation commission and the bailiffs . On DATE the ORG informed the applicant that his complaints had been forwarded to ZRCC for a reply .","On DATE the applicant lodged complaints with the ZRCC , seeking a declaration that he was a creditor of the ORG and an order requiring the ORG to enforce the judgment of CARDINAL DATE . He also sought a declaration that the friendly settlement reached by the ORG and its creditors was unlawful . By a letter of CARDINAL DATE , the ZRCC informed the applicant that , as he had failed to lodge a request to be recognised as a creditor during the bankruptcy proceedings in the case ( DATE ) , he could not claim to be a creditor and could not therefore seek to have the friendly settlement declared unlawful .","On DATE the applicant lodged complaints with ORG , seeking a declaration that the inactivity of the Head of ORG was unlawful in view of his failure to enforce the judgment of DATE .","On DATE the complaint was left without consideration for failure to comply with the formalities prescribed by law .","DATE . On DATE the applicant again lodged a complaint with ORG against the bailiffs , seeking to have their failure to enforce the judgment of CARDINAL DATE declared unlawful . In DATE ORG rejected this complaint on account of the applicant \u2019s failure to comply with the requirements as to its form and content . The applicant was allowed DATE to rectify the matter .","On DATE the applicant resubmitted his complaint .","On DATE ORG rejected his complaints as being lodged out of time .","On DATE the ORG of Appeal ( the \u201c ORG \u201d ) quashed that decision and remitted the case to the same court for a fresh consideration .","On DATE the applicant lodged additional complaints with ORG , seeking the annulment of the bailiffs\u2019 resolution of DATE on the termination of the enforcement proceedings .","The proceedings concerning the failure of the bailiffs to act and the resolution on terminating the enforcement proceedings were disjoined , forming CARDINAL separate proceedings : case no . CARDINAL - CARDINAL\/CARDINAL and case no . DATE .","On DATE ORG found in favour of the applicant in the first case ( no . CARDINAL - CARDINAL\/CARDINAL ) . It also declared unlawful the failure of the bailiffs to enforce the judgment for a lengthy period ( DATE and DATE ) and found the applicant \u2019s complaints to be substantiated . The applicant appealed against this decision as he thought that a mere acknowledgment of the fact that the bailiffs had acted unlawfully was not sufficient to rectify the situation . On DATE ORG upheld the judgment given on DATE and dismissed the applicant \u2019s appeal .","On DATE ORG dismissed the applicant \u2019s claims concerning the allegedly unlawful termination of the enforcement proceedings in his second case as being unsubstantiated ( case no . DATE ) . The applicant appealed to ORG , seeking the resumption of the enforcement proceedings and an extension of the time allowed for lodging an appeal . On DATE ORG quashed the judgment of DATE and did not consider the applicant \u2019s complaints as they had been lodged out of time ( section CARDINAL of LAW ) .","On DATE the applicant requested ORG to extend the time for considering his complaints against the bailiffs\u2019 resolution of DATE on terminating the enforcement proceedings in his second case ( no . DATE ) . In particular , he alleged that the delay in lodging his complaints was due to the fact that he had received the resolution of DATE in a version that was illegible ( it was sent to him twice , on DATE and DATE ) . He had lodged his complaints only on DATE as he could not read the documents supplied to him by the bailiffs , which were allegedly of a very poor quality . He has not given the ORG any further information as to the outcome of these proceedings .","On DATE the applicant lodged a cassation appeal against the ruling of CARDINAL DATE in the first case ( no . CARDINAL - CARDINAL\/CARDINAL ) .","On DATE ORG informed the applicant that his appeal had been received . It also stated that it was pending for consideration before ORG .","On DATE a panel of CARDINAL judges of ORG dismissed the applicant \u2019s appeal as it found no infringements of the rules of substantive or procedural law . It also found that there were no grounds for remitting the appeal for consideration by ORG ."],"violated_articles":["13","6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92183","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2009,"docname":"LEINO v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr P. Kavonius , a lawyer practising in GPE . The respondent Government were represented by their agent , Mr PERSON of ORG .","The applicant had a voluntary pension insurance from DATE until DATE into which he paid in total MONEY ( ORG ) . From DATE his employer was responsible for paying contributions to the insurance policy and in DATE it paid CARDINAL instalment of EUR CARDINAL .","By a decision of DATE ORG ( kansanel\u00e4kelaitos - KELA , folkpensionsanstalten \u2013 ORG , hereafter \u201c KELA \u201d ) granted the applicant an old - age pension ( kansanel\u00e4ke , folkspension ) of ORG DATE as from DATE . The occupational pension ( ty\u00f6el\u00e4ke , arbetspension ) paid to the applicant by a life insurance company was taken into consideration in calculating the amount of his old - age pension .","On DATE an insurance company granted the applicant a pension based on his voluntary pension insurance retroactively as from DATE .","As a result of this new pension decision the ORG informed the applicant by letter of DATE that there had been an error in the previous decision of CARDINAL DATE and that his old - age pension would diminish as a result of the pending rectification . The applicant was invited to inform the ORG of his opinion on the rectification by DATE . A form to this effect was attached to the letter . The applicant did not reply to the letter .","On DATE the ORG made a decision to cease the payment of the applicant \u2019s old - age pension as of DATE due to the increase in his other pensions . The applicant did not appeal against this decision which thus became final .","By a letter dated DATE the ORG informed the applicant that the old - age pension he had received in the period DATE and DATE , in total ORG CARDINAL,CARDINAL.CARDINAL , was in fact in excess due to the new calculations and that he should let the ORG know his opinion on the matter by DATE . The applicant did not reply to the letter .","On DATE the ORG decided to recover the entire old - age pension paid . The applicant was given DATE to pay .","On DATE the applicant appealed to ORG ( tarkastuslautakunta , pr\u00f6vningsn\u00e4mnden ) against the decision of CARDINAL DATE . He claimed that the entire voluntary pension was regarded by the ORG as CARDINAL paid by his employer whereas he himself , the tax authorities and his insurance company considered the main part of that pension as being paid by the applicant .","On DATE ORG dismissed his appeal , stating that there were no reasons for making an exception to the rule that pension payments to which the recipient was not entitled should be paid back .","On DATE the applicant appealed to ORG , which dismissed his appeal on DATE without elaborating on the reasons or addressing the specific circumstances of the applicant \u2019s pension .","On DATE the ORG requested the applicant to contact them regarding the schedule of repayments . Subsequently the insurance company \u2019s lawyer contacted the ORG and provided additional clarifications , to no avail . On CARDINAL DATE a payment order was sent to the applicant ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72936","languageisocode":"ENG","respondent":"ITA","branch":"GRANDCHAMBER","date":2006,"docname":"CASE OF MOSTACCIUOLO GIUSEPPE v. ITALY (No. 2)","importance":2,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Luzius Wildhaber;Nicolas Bratza","text":["NORP The applicant was born in DATE and lives in GPE .","On CARDINAL DATE Mr F. asked ORG to order the applicant to pay him MONEY ( MONEY ( ORG ) ) for professional services . On CARDINAL DATE the President of ORG granted the application . The order was served on the applicant on DATE .","On DATE the applicant challenged the order in ORG . Preparation of the case for trial began on DATE . Of the CARDINAL hearings listed between CARDINAL DATE and CARDINAL DATE seven were adjourned by the court of its own motion , CARDINAL were devoted to organising expert evidence and supplementary findings and CARDINAL were adjourned at the parties\u2019 request .","On DATE the case was referred to the bench of judges dealing with the oldest cases ( sezioni stralcio ) . Of the CARDINAL hearings listed DATE and DATE CARDINAL was adjourned by the court of its own motion and one because the parties had not appeared . On DATE the case was struck out of the list of cases because the parties had not appeared .","On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the \u201c Pinto Act \u201d , complaining of the excessive length of the above - described proceedings . The applicant asked the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the pecuniary and non - pecuniary damage sustained . The applicant claimed LAW in pecuniary and non - pecuniary damages . He sought the reimbursement of his legal costs , including those incurred before ORG , but did not quantify or give particulars of them .","In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that the length of the proceedings had been excessive . It held as follows :","\u201c ... The proceedings have lasted DATE without being disposed of .","Their length is clearly well over the reasonable time required by LAW .","On the basis of the time periods considered reasonable in a series of judgments of ORG , this type of proceedings should have ended within DATE at the most since they were normal proceedings on the merits to be prepared and dealt with in accordance with the ordinary procedure .","Accordingly , in respect of the surplus period of DATE the delay has to be regarded as unjustified .","That delay certainly can not be attributed to culpable conduct on the part of the applicant , who did not make any unsubstantiated requests for an adjournment or applications for investigative measures on false pretexts since he merely put up with the numerous adjournments ordered by the court of its own motion and the slowness in preparing the case without being able to intervene to expedite the proceedings , as was in his interests , and have set aside an order to pay a substantial sum which he considered unfair .","Nor is the delay attributable to the complexity of the case since , on the contrary , it was an ordinary dispute which could easily have been disposed of in less time by examining a number of documents and the expert report that was drawn up , as the technical investigation did not require a lot of work .","Nor have the courts been negligent , since the overlong parts of the proceedings have to be attributed to the excessive caseload and the structural flaws for which the ORG judicial departments are notorious .","Accordingly , responsibility for the delay can only be attributed to the NORP ORG , which , despite its obligation after signing and ratifying LAW to equip itself with a judicial system capable of dealing with its ORG legal claims , has failed to expedite proceedings because of persistent structural flaws and the growing increase in the caseload , despite a number of changes to the rules and a reinforcement of the court structures .","The applicant shall therefore be awarded just satisfaction .","No award shall be made for pecuniary damage because the applicant has failed to substantiate his claim .","He is , however , entitled to non - pecuniary damages since it can not be excluded that he has suffered as a result of the consequent long and frustrating wait for a judgment which has still not been delivered after DATE of preparation of the case and which should solve a matter of major economic importance for him .","Having regard to the length of the delay , the interests at stake and the uncertain outcome of the dispute , we consider it equitable to make an award of MONEY ... \u201d","ORG dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof , awarded him ORG CARDINAL on an equitable basis in compensation for non - pecuniary damage , EUR CARDINAL for costs and expenses incurred in the proceedings before ORG for the costs and expenses incurred in the Pinto proceedings .","In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of his application .","The applicant has not indicated that he appealed to ORG .","ORG decision was served on the authorities on DATE and became final on DATE . The applicant served the authorities with notice to comply on DATE . On DATE the applicant lodged an application for a garnishee order with the GPE judge responsible for enforcement proceedings and a hearing was held on DATE . After obtaining a garnishee order on DATE , the sums were paid on an unspecified date after the order had been served .","Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW","CHAPTER II","Just satisfaction","Section CARDINAL","Entitlement to just satisfaction","\u201c CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the \u2018 reasonable - time\u2019 requirement in LAW , shall be entitled to just satisfaction .","NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .","NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :","( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;","( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . \u201d","Section CARDINAL","Procedure","\u201c CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .","NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .","The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .","NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .","The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .","The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .","To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . \u201d","Section CARDINAL","Time - limits and procedures for lodging applications","\u201c A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . \u201d","Section CARDINAL","Communications","\u201c If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . \u201d","Section CARDINAL","Transitional provisions","\u201c CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the \u2018 reasonable - time\u2019 requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .","The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . \u201d","Section CARDINAL","Financial provisions","\u201c CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the \u2018 special fund\u2019 in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .","ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . \u201d","On appeal from decisions delivered by the courts of appeal in \u201c Pinto \u201d proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court \u2019s decision and remitting the case for a rehearing . It held that \u201c the case - law of ORG is binding on NORP courts regarding the application of PERSON no . CARDINAL \u201d .","In its judgment no . CARDINAL it affirmed , inter alia , the principle that","\u201c the court of appeal \u2019s determination of non - pecuniary damage in accordance with LAW no . CARDINAL\/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . \u201d","Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on CARDINAL DATE","\u201c ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given \u2013 in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement \u2013 to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...","As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the \u201c violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . \u201d In other words , PERSON no . CARDINAL\/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .","As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being \u201c brought into conformity \u201d by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . ORG is concerned .","It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to \u201c reasonable time \u201d ) , can not diverge from the interpretation which ORG gives of the same provision .","The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL\/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL\/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which \u2018 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .","The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : \u201c the ORG may only deal with the matter after all domestic remedies have been exhausted \u201d ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - \u00e0 - vis the organs of the national judicial system . And this protection must be \u201c effective \u201d ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .","The domestic remedy introduced by Law no . CARDINAL\/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had \u201c clogged \u201d ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE \u201c reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention \u201d ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .","Law no . CARDINAL\/CARDINAL constitutes the domestic remedy to which a \u201c victim of a violation \u201d ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the \u201c just satisfaction \u201d provided for in LAW , which , when the violation exists , is only awarded by the ORG \u201c if the internal law of ORG concerned allows only partial reparation to be made \u201d . Law no . CARDINAL\/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .","This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only \u201c partially \u201d , because in such an event the said LAW provides for the intervention of ORG to protect the \u201c victim of the violation \u201d . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .","The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW of LAW to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .","The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .","It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing LAW no . PERSON ) , affirmed that \u201c it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention \u201d .","... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant \u201c a protection analogous to that which he or she would receive in the international court \u201d , as the direct reference to LAW makes it possible to transfer to domestic level \u201c the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits \u201d .","... CARDINAL . \u2013 The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL\/CARDINAL with regard to reparation for non - pecuniary damage .","In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .","It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .","\u2013 In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) \u201d .","ORG held as follows :","\u201c ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the \u201c Pinto Act \u201d ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... \u201d","The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to \u201c just satisfaction \u201d could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .","In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .","In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :","( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...","( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .","The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...","( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL\/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...","This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to \u201c juristic \u201d persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .","ORG made the following observations :","\u201c ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) .","- the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) . ...","- a discrepancy in the method of calculation [ between the ORG \u2019s case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . MONEY ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle of LAW ... \u201d","In the report ORG , revised on DATE , the ORG deputies made the following indications regarding an assessment of the Pinto remedy :","\u201c ... CARDINAL . As regards the domestic remedy introduced in DATE by the \u201c Pinto Act \u201d , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...","In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...","It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... \u201d","In this interim resolution the ORG deputies indicated as follows :","\u201c ORG","Noting ...","\u201c ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the \" Pinto \u201d law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;","Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;","Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...","Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...","URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE \u2019s obligation under the ORG and the ORG \u2019s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE \u2019s jurisdiction . ... \u201d","ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .","In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL \u00a7 ( CARDINAL ) the ORG noted that \u201c the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98917","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF FAD\u0130ME AND TURAN KARABULUT v. TURKEY","importance":3,"conclusion":"Violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants were born in DATE and DATE respectively and live in GPE . They had QUANTITY daughters , PERSON and PERSON .","According to the applicants , on DATE at TIME the QUANTITY girls were hitchhiking to PERSON when a military vehicle stopped and the soldiers who got out started shooting at them . PERSON , who was DATE , was shot and died later in DATE in a hospital . PERSON , who was DATE , was beaten by the soldiers before being taken to a gendarmerie station . She was released TIME .","DATE a scene of incident report was drawn up by the gendarmerie officers . According to that report , a person who wanted to remain anonymous telephoned the gendarmerie and stated that he had seen a female behaving suspiciously . A number of gendarme officers and soldiers arrived at the scene at TIME and saw the female in question . When the female saw the soldiers she began to run away . The soldiers unsuccessfully called out to her to stop and then fired CARDINAL to QUANTITY warning shots in the air . The female responded by throwing a hand grenade at the soldiers and the soldiers continued firing warning shots . When she attempted to throw another grenade , the soldiers shot her . When they searched her the soldiers found a stick , CARDINAL knives , a screwdriver , a QUANTITY - long electricity cable , a syringe with a yellow liquid inside and a hand grenade . None of the soldiers were injured in the incident . PERSON was then taken to a hospital in the city of GPE where she died DATE .","On DATE the second applicant and his surviving daughter PERSON made statements to a prosecutor . The second applicant maintained that his CARDINAL daughters had been trying to flag down a car in order to go to a hospital in GPE where they had had operations previously . When no cars stopped , the girls had decided to walk to their uncle 's house but then the soldiers arrived and told the QUANTITY girls to stop . PERSON raised her hands and stopped but PERSON started to run away from the soldiers because she was scared . The soldiers then shot her . The second applicant asked the prosecutor to find and prosecute those responsible for the killing of his daughter .","Serap Karabulut confirmed the version of the events described by her father and added that she would recognise the soldier who shot her sister . She also stated that the soldiers had beaten her up .","DATE PERSON was taken to ORG where she was examined by a doctor . The medical report indicated that there was an area of bruising measuring CARDINAL x QUANTITY , on her right shoulder and a scratch measuring QUANTITY on her left shoulder .","Also DATE an autopsy was conducted on PERSON body at ORG , with the attendance of a prosecutor . Just before the autopsy her mother formally identified her deceased daughter . She told those present at the hospital that her daughter PERSON had been carrying the knives and the screwdriver in order to defend herself from any possible attacks while she was herding animals . She added that the syringe was hers and contained a tranquilliser which had been prescribed to her by her doctor ; she did not know why her daughter had taken it from the house . She asked for those responsible for the killing of her daughter to be prosecuted and punished .","According to the autopsy report drawn up DATE , PERSON had died as a result of internal bleeding caused by a single bullet which had entered from the back at the level of DATE left rib and exited at the front at the level of the ninth rib . The prosecutor who was present during the autopsy observed that the hand grenade which was allegedly found on PERSON ( see paragraph CARDINAL above ) was not among the objects submitted to his office .","According to a report prepared DATE at ORG , the yellow liquid in the syringe was identified as heroin .","On DATE a scene of incident report was drawn up by the prosecutor who went to the area where PERSON was killed . The prosecutor was accompanied by ORG district gendarmerie commander PERSON , the applicants ' surviving daughter PERSON , the applicants ' representative , the village headman ( muhtar ) and an expert on explosives . A search was carried out in the area , during which a spent bullet case and a grenade fuse were found . A hole , QUANTITY wide and QUANTITY deep , was observed by those present . According to the expert , the hole could have been caused by a hand grenade as well as by numerous other things . No pieces of the hand grenade allegedly thrown by PERSON could be found in the area . The FAC district gendarmerie commander ORG told the prosecutor that the second hand grenade which was found on PERSON had been destroyed by the soldiers after the incident .","On various dates in DATE , the prosecutor took statements from CARDINAL gendarmerie officers who had been involved in the incident . The officers stated that they had acted under the belief that PERSON was a terrorist because she had thrown a hand grenade at them and also because they had thought that the wooden walking stick hidden under her jacket was a rifle . They had fired warning shots , and when she was about to throw the second hand grenade , they had fired shots at her , aiming below the waist and at the hand with which she had been holding the hand grenade . Their intention was not to kill but to injure her so that they could arrest her .","On DATE the applicants lodged a complaint with the NORP prosecutor and informed the prosecutor that the gendarmerie personnel responsible for the killing of their daughter had been issuing press releases in which claims such as \u201c the suicide bomber was on heroin \u201d were made .","On DATE ORG issued its report on the fuse and a sample of soil taken from the hole found at the scene . According to the report , the fuse belonged to a hand grenade of ORG standard , the origin of which could not be identified . It was also established that the soil sample contained traces of GPE ( ORG ) .","On DATE ORG issued its report on the results of tests carried out on a blood sample taken from PERSON body and on the yellow liquid in the syringe found with her . According to the report , there were no drugs in GPE blood . The liquid in the syringe was identified as chlorpromazine , a type of tranquilliser .","On DATE gendarmerie lieutenant - colonel PERSON was appointed as the investigator on the case and began questioning the gendarmerie personnel who had taken part in the incident . On DATE the lieutenant - colonel concluded his investigation and recommended that no permission be given for the prosecution of the CARDINAL gendarmerie personnel . The report contains a summary of the statements made by , inter alia , the CARDINAL gendarmerie officers , the applicants and PERSON . The lieutenant colonel considered that the gendarmerie officers had had reason to believe that PERSON , who had not stopped when warned and had thrown a hand grenade at the soldiers , was a terrorist . Referring to the applicable legislation according to which gendarmerie officers had the right to use firearms when confronted , the report concluded that there had been no intention to kill and therefore no prosecution should be brought against the CARDINAL gendarmerie officers involved in the incident .","On DATE the Commission on the Prosecution of Civil Servants ( \u201c the ORG \u201d ) held that the report prepared by the investigator concentrated solely on the issue of the killing and did not examine whether the soldiers had exceeded their powers . The ORG also considered that the report lacked information on a number of issues . For example , the identity of the gendarmerie officer who shot PERSON and the identity of the person who had informed the gendarmerie about \u201c the suspicious female \u201d had not been established . The soldiers ' failure to preserve the purported second - hand grenade instead of destroying it had also not been questioned . The villagers had not been questioned about PERSON character , whether she had previously been involved in terrorist activities and where she could have obtained hand grenades .","On DATE the investigator took additional statements from CARDINAL of the gendarmerie officers who maintained that they had all fired at GPE at the same time and did not know which bullet had hit her . They had aimed below the waist in order to avoid killing her . Nevertheless , as the terrain was rough , she had received a lethal shot . The grenade found by her side had already been partially detonated by her and therefore would have posed a threat if preserved as evidence .","On DATE the lieutenant - colonel took statements from CARDINAL villagers , who stated that PERSON often took long walks in the countryside , sometimes with her father who was a shepherd , and sometimes alone . They did not know whether she had been involved in any terrorist activities before and they did not know from where she could have obtained the hand grenades . A gendarmerie officer who worked as a telephone operator on the switchboard told the investigating lieutenant - colonel that the person who informed them about \u201c the suspicious female \u201d had not given his name .","On DATE the lieutenant - colonel prepared an additional report . The ORG decided on DATE to decline permission to prosecute the gendarmerie personnel who had killed PERSON . The ORG 's decision was quashed by ORG on DATE .","On DATE the NORP prosecutor filed a bill of indictment with ORG and charged CARDINAL gendarmerie personnel with unintentional homicide , contrary to LAW . On DATE the applicants intervened in the criminal proceedings .","On DATE ORG issued a decision of non - jurisdiction , on the ground that the defendants were military personnel and the act complained of had taken place in the course of their military duties . The case file was sent to ORG .","On DATE the Sivas ORG also issued a decision of non - jurisdiction . This decision was upheld by ORG on DATE and on DATE ORG ( PERSON ) held that the case fell within the jurisdiction of ORG since the offence by gendarmes had been committed in the course of their administrative and civil duties .","A new trial was conducted by ORG , during which the defendants were questioned by different criminal courts pursuant to rogatory letters issued by ORG .","On DATE ORG considered that the gendarmes had exceeded their powers on the use of firearms by firing at PERSON back rather than at non - vital parts of her body . ORG also considered that alternative and non - lethal methods could have been employed by the gendarmes to catch PERSON . It found the gendarmes guilty of manslaughter and sentenced them to DATE and DATE imprisonment . However , the sentences were then suspended pursuant to LAW , which gave criminal courts discretion to suspend prison sentences shorter than DATE .","The applicants and the defendants appealed . On DATE ORG upheld ORG judgment of DATE in so far as it concerned its conclusion concerning the finding of guilt . Nevertheless , it quashed the sentencing part of the judgment in so far as it concerned CARDINAL of the CARDINAL gendarmes , and remitted the case to ORG so that the provisions of a new law which had entered into force in the meantime ( PERSON no . DATE of DATE ) could be applied to them and the pronunciation of their sentences could thus be deferred . As the sixth gendarme already had a criminal record in respect of another offence , ORG held that he could not benefit from the favourable provisions of the new law , and upheld his suspended sentence handed down by ORG on DATE .","A new trial was conducted by ORG which reiterated on DATE the conclusion it had reached on DATE , and found the remaining CARDINAL gendarmes guilty of the offence of manslaughter . They were sentenced to DATE and DATE imprisonment but the execution of the sentences was suspended . ORG observed that the defendants had no previous convictions and considered that they would not commit any such offences in future . The applicants lodged an appeal against the judgment , the outcome of which is unknown to the ORG ."],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79134","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF KOT v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant , Mr PERSON was born in DATE and lives in GPE . In DATE he took part in the emergency operations at the site of the GPE nuclear plant accident . On DATE he was diagnosed with after - effects of radioactive emissions and granted DATE compensation for the damage to his health .","On DATE the applicant sued ORG of LOC ( \u0412\u043e\u0435\u043d\u043d\u044b\u0439 \u043a\u043e\u043c\u0438\u0441\u0441\u0430\u0440\u0438\u0430\u0442 \u0422\u0430\u043c\u0431\u043e\u0432\u0441\u043a\u043e\u0439 \u043e\u0431\u043b\u0430\u0441\u0442\u0438 , hereinafter the \u201c Commission \u201d ) for an increase of the compensation to take account of the inflation .","On DATE and DATE ORG granted his claim and ordered the Commission to increase the future DATE payments to MONEY ( \u201c RUR \u201d ) and also to pay him ORG in respect of the previous period .","On DATE the ORG quashed those judgments on appeal , finding that the first - instance court had not taken account of the changes introduced into LAW by LAW CARDINAL of DATE . The claim was remitted for a fresh examination .","ORG pronounced a new judgment on DATE . It assessed future DATE payments at FAC and the lump sum in respect of the previous period at FAC .","On DATE the ORG quashed that judgment on appeal on the ground that the first - instance court had incorrectly applied the substantive law and remitted the case for a fresh examination .","By judgment of DATE , ORG awarded the applicant RUR CARDINAL,CARDINAL.CARDINAL in DATE payments as from DATE and RUR CARDINAL in respect of the previous period .","On DATE ORG upheld that judgment on appeal , and the judgment became enforceable .","On DATE the ORG filed an application for supervisory review . It claimed that the first - instance and appeal courts had erroneously applied civil - law provisions relating to calculation of the minimal wages for the purposes of adjusting the applicant 's compensation in line with inflation .","On DATE the President of ORG stayed the execution of the judgment of DATE .","On DATE the Presidium of ORG held a supervisory - review hearing . It determined that the lower courts had erred in applying the substantive law by not having taken into account the amendments introduced into LAW by LAW CARDINAL of DATE . On that ground it quashed the judgment of CARDINAL DATE , as upheld on DATE , and remitted the matter for a fresh examination .","On DATE ORG issued a new judgment , by which the applicant was awarded RUR CARDINAL,CARDINAL.CARDINAL in future DATE payments and RUR CARDINAL,CARDINAL.CARDINAL in respect of DATE . The judgment was not appealed against and became final on DATE .","The Code of Civil Procedure of GPE was enacted on DATE and replaced LAW from DATE . It provides as follows :","\u201c CARDINAL . The grounds for quashing or altering judicial decisions by appeal courts are :","...","( CARDINAL ) a violation or incorrect application of substantive or procedural law . \u201d","\u201c CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .","Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... \u201d","\u201c Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . \u201d","\u201c CARDINAL . Having examined the case by way of supervisory review , the court may ...","( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ...","( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if the substantive law has been erroneously applied or interpreted . \u201d","Interim Resolution ResDH ( DATE ) concerning the violations of the principle of legal certainty through the supervisory review procedure ( \u201c nadzor \u201d ) in civil proceedings in GPE , adopted by ORG on DATE , reads , in its relevant parts , as follows :","\u201c ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of the Convention ...","Welcoming the reforms of the supervisory review ( \u201c nadzor \u201d ) procedure introduced by LAW entered into force on DATE ;","Noting with satisfaction , in particular , that some of the problems at the basis of the violations found in these cases have thus been remedied ...","Expressing , however , particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and \u201c nadzor \u201d instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts ' judgments in a single set of proceedings so that subsequent recourse to \u201c nadzor \u201d becomes truly exceptional , if necessary at all ;","Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances , while under the current \u201c nadzor \u201d procedure such a judgment may be quashed for any material or procedural violation ;","Emphasising that in an efficient judicial system , errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and\/or cassation proceedings before the judgment becomes binding and enforceable , thus avoiding the subsequent risk of frustrating parties ' right to rely on binding judicial decisions ;","Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand - in - hand with improvement of the court structure and of the quality of justice , so as to limit the need for correcting judicial errors currently achieved through the \u201c nadzor \u201d procedure ...","CALLS UPON the NORP authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the LAW , as interpreted by the ORG 's judgments ;","ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and\/or cassation proceedings before judgments become final ...","ENCOURAGES the authorities , pending the adoption of this comprehensive reform , to consider adoption of interim measures limiting as far as possible the risk of new violations of LAW same kind , and in particular :","- continue to restrict progressively the use of the \u201c nadzor \u201d procedure , in particular through stricter time - limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law ...","- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case ;","- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law ;","- to adopt measures inducing the parties adequately to use , as much as possible , the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102378","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2010,"docname":"CASE OF OSV\u00c1THOV\u00c1 v. SLOVAKIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land .","On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of QUANTITY ( ORG ) only to renege on the contract without returning the price .","On DATE the applicant was charged with fraud on the basis of ORG 's criminal complaint . The decision containing the charge was not served on the applicant until DATE , when she was questioned by a judge following her arrest ( see below ) .","On DATE and DATE , respectively , a national search for the applicant was launched and ORG ( NORP prokurat\u00fara ) asked ORG ( Okresn\u00fd s\u00fad ) for a warrant for the applicant 's arrest .","It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses , was not living at her registered address ( trval\u00e9 bydlisko ) and her whereabouts were unknown .","On DATE ORG issued the arrest warrant . It indicated as the underlying reason for the warrant that \u201c [ the applicant ] [ was ] not living at her registered address ; her whereabouts [ were ] unknown \u201d .","From DATE to DATE the applicant was held in pretrial detention ( see below ) .","On DATE the applicant challenged the charge by way of an interlocutory appeal ( s\u0165a\u017enos\u0165 ) .","On DATE and DATE , respectively , the investigator interviewed a notary who had drawn up the contract and , following her release from detention , also the applicant .","On DATE ORG granted the applicant 's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil - law nature and the applicant 's actions did not constitute a criminal offence .","At TIME on DATE , on the basis of the warrant of DATE , the applicant was arrested by the police and taken into police custody .","At TIME on DATE the applicant was brought before a single judge of ORG for questioning .","A record of the questioning was made on a pre - printed form . In so far as the pre - printed section of the record was filled out , it indicates that the applicant was questioned as a person charged ( obvinen\u00fd ) \/ suspect ( podozriv\u00fd ) , that she was informed of the rights that pertain to a person in that procedural position and that she had been handed ( doru\u010den\u00e9 ) \/ read out ( pre\u010d\u00edtan\u00e9 ) the decision containing the charge of fraud .","The verbatim section which follows the pre - printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence ( trval\u00e9 \/ prechodn\u00e9 bydlisko ) and that she mainly stayed in monasteries and pastors ' offices . She admitted having received and not returned the purchase price and expressed readiness to return it . She explained that she had health problems and that on DATE she had fainted in the street .","The verbatim section of the record also indicates that , thereafter , the applicant was handed the decision containing the charge of CARDINAL DATE .","According to the applicant , the decision containing the charges had been handed to her at TIME","The verbatim section of the record further indicates that ORG then immediately ordered the applicant to be detained under Article CARDINAL \u00a7 CARDINAL ( a ) of LAW ( \u201c the ORG \u201d \u2013 Law no . CARDINAL\/CARDINAL Coll . , as applicable at the relevant time ) .","That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well - founded concern that he or she would flee or go into hiding in order to avoid prosecution , in particular when the person 's identity can not be immediately established , when the person does not have a fixed abode ( st\u00e1le bydlisko ) or if the person faces the risk of a heavy penalty .","NORP Immediately after she had been remanded in custody , the applicant orally lodged an interlocutory appeal ( s\u0165a\u017enos\u0165 ) and asked for her lawyer to be informed of her detention . The interview ended at TIME","In a CARDINAL - page written version of the detention order of DATE the ORG established , \u201c on the basis of the case file and the applicant 's interview \u201d , that there were reasons for detaining her under LAW ( a ) of the ORG because , \u201c if left at liberty , [ the applicant ] would seek to frustrate the prosecution by going into hiding \u201d . This was so because the applicant \u201c did not live at her registered permanent address , had no registered temporary address and it was not known where she was currently living \u201d .","On DATE the applicant submitted her written grounds of appeal .","On DATE ORG sent the case file to ORG ( PERSON s\u00fad ) for determination of the appeal . It arrived there on DATE .","Meanwhile , on DATE , the investigator attempted to interview the applicant who , however , exercised her right to remain silent .","On DATE the applicant appointed a new lawyer who inspected the case file on the following day .","On DATE the applicant 's new lawyer submitted in writing further grounds of appeal . He relied on LAW and advanced CARDINAL main arguments .","First , before the questioning on DATE , the applicant had not been informed of her rights as a person facing charges .","Second , the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of DATE .","Third , the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning .","Fourth , ORG had failed to examine whether there was any \u201c reasonable \u201d suspicion against the applicant which would justify her detention .","On DATE ORG , sitting in private ( neverejn\u00e9 zasadnutie ) , quashed the detention order and ordered the applicant 's immediate release .","It found that the matter was of a contractual nature and that the applicant 's actions could not be qualified as a criminal offence .","Moreover , the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge .","ORG concluded that there was no reason for detaining the applicant .","Following the decision of DATE , on DATE , the applicant was released .","A written version of the decision of ORG was sent to the applicant 's address but returned as she could not be found . It was then sent to her lawyer , who received it on DATE .","On DATE the applicant lodged a complaint under LAW with ORG ( \u00dastavn\u00fd s\u00fad ) .","Relying on LAW ) , CARDINAL , DATE and DATE of the Convention and on their constitutional counterparts , the applicant made CARDINAL main complaints .","First , after her arrest , the applicant had not been informed promptly of the reasons for it and of the charge against her .","Second , in violation of the applicable procedural rules , the applicant had not been informed of her procedural rights as a person charged .","Third , the decision of ORG of DATE lacked adequate reasoning , in particular , because it only dealt with CARDINAL of the CARDINAL arguments that she had put forward .","Fourth , a decision regarding the lawfulness of the applicant 's detention had not been reached speedily , which was imputable mainly to ORG .","Invoking LAW and LAW , the applicant claimed the equivalent of some ORG CARDINAL,CARDINAL in just satisfaction for nonpecuniary damage and the reimbursement of her legal costs .","On DATE a CARDINAL - judge bench of ORG declared the complaint inadmissible .","It found that ORG had been prevented from examining the first CARDINAL arguments by the principle of subsidiarity .","As to the third argument , ORG acknowledged that ORG had limited its review to CARDINAL of the applicant 's arguments . However , this did not constitute an infringement of the applicant 's fundamental rights .","As to the remaining complaint , concerning the length of the proceedings to review the lawfulness of the applicant 's detention , the Constitutional Court established that it had in total taken DATE ( from the detention order of DATE ) for ORG to transmit the case file to ORG for determination of the applicant 's appeal .","However , it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on DATE . After that date , ORG had transmitted the case file to ORG within DATE ( on DATE ) . Although the conduct of ORG could not be described as \u201c expeditious \u201d ( ur\u00fdchlen\u00e9 ) , it did not amount to a violation of the applicant 's rights under LAW . It was true that , after ORG decision of DATE , it was not until DATE that the written version of the decision was served on the applicant . Nevertheless , this was of no practical consequence because the applicant must have learned of the decision on DATE , when she was released , and the decision was subject to no further appeal . The bench concluded that , in those circumstances , the remaining complaint was manifestly ill - founded .","The presiding judge , however , did not share the majority view and gave a dissenting opinion . According to him , it was \u201c highly debatable \u201d whether the complaint concerning the lack of speediness in the proceedings regarding the applicant 's appeal against her detention was manifestly illfounded . The presiding judge pointed out that it had taken DATE for ORG to transmit the case file to ORG . Referring to previous practice and , in particular , to a decision in case file number III . \u00daS CARDINAL\/CARDINAL , he concluded that the complaint should have been declared admissible .","The decision of ORG was served on the applicant on DATE .","Under LAW the State bears liability for damage caused by public authorities inter alia by unlawful arrest , detention ( zadr\u017eanie ) or other deprivation of personal liberty ( section CARDINAL(CARDINAL)(b ) ) , decisions concerning detention on remand ( v\u00e4zba ) ( section CARDINAL(CARDINAL)(c ) ) and wrongful official actions ( section CARDINAL ) ) .","The right to compensation for damage caused by a decision on arrest , by detention ( zadr\u017eanie ) or by other deprivation of personal liberty is vested in the person who was subjected to it , provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it ( section CARDINAL ) .","The right to compensation for damage caused by a decision concerning detention on remand ( v\u00e4zba ) is vested in the person who was detained on remand , provided that the criminal proceedings against him or her have been dropped ( section CARDINAL(CARDINAL)(a ) ) or he or she has been acquitted ( section CARDINAL(CARDINAL)(b ) ) or the matter has been referred to another authority ( section CARDINAL ) ) .","NORP However , no such right arises when the person concerned himself or herself gave cause for the detention on remand ( section CARDINAL(CARDINAL)(a ) ) .","The ORG is also liable for damage caused by wrongful official action , which comprises , inter alia , a public authority 's failure to take an action within the time - limit set , inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal entities ( section CARDINAL(CARDINAL ) ) .","The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage ( section CARDINAL(CARDINAL ) ) .","Under LAW the compensation is to cover pecuniary damage , including loss of profit , and , where appropriate and necessary , nonpecuniary damage .","In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL\/CARDINAL ) ORG granted an action for damages by CARDINAL individuals against the ORG under LAW DATE and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal .","On DATE the Bansk\u00e1 Bystrica Regional Court upheld the judgment following the defendant 's appeal .","On DATE ORG granted an appeal ( case no . MONEY ) in an action by an individual against the ORG under LAW DATE for damages and awarded him an amount of money in compensation for non - pecuniary damage caused by detention on remand in the context of a criminal trial that had ended with his acquittal .","In a judgment of CARDINAL DATE ( case no . CARDINALC CARDINAL\/CARDINAL ) ORG granted an action for damages by an individual against the ORG under LAW DATE and awarded the claimant an amount of money in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial .","The impugned wrongful official action concerned extension of the claimant 's detention pending trial .","The action was preceded by a judgment of ORG of DATE ( case no . I. \u00daS CARDINAL\/CARDINAL ) in which ORG found a violation of the claimant 's rights under LAW and CARDINAL in connection with the same facts .","However , ORG was unable to award the claimant damages as he had made no claim for damages ."],"violated_articles":["5"],"violated_paragraphs":["5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111244","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2012,"docname":"TARON v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC . He was represented before the Court by Ms P. ORG , a lawyer practising in Steinhagen . The respondent Government were represented by their agent Mr H .- J. Behrens , GPE , of ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant lives outside residential building zones in a rural area that is primarily designated for agriculture . In DATE , LOC ( Landkreis ) granted his neighbour a construction permit for an industrial poultry shed ( GPE ) QUANTITY from the applicant \u2019s home . All appeals of the applicant and related applications to suspend execution of the permit were dismissed . The permit became final on DATE when ORG refused the applicant \u2019s request to be granted leave to appeal .","On DATE the applicant lodged an action for reopening of the proceedings regarding the first shed with ORG .","ORG has not decided on this claim .","On DATE the GPE granted the applicant \u2019s neighbour a permit according to LAW ) concerning the erection of a second industrial poultry shed QUANTITY from the applicant \u2019s home .","The applicant objected on DATE .","On DATE the GPE allowed the applicant \u2019s neighbour to make use of the permit despite the pending proceedings of the applicant . All CARDINAL subsequent requests of the applicant to reinstate the suspensive effect of his objection with ORG were dismissed .","On DATE ORG held that the numerous submissions of the applicant showed that he had become unable to properly represent himself and decided that he had no longer locus standi in the proceedings . The applicant \u2019s related application for legal aid was rejected for lack of reasonable prospects .","On DATE the applicant , represented by counsel , lodged an action for failure to act ( Unt\u00e4tigkeitsklage ) with ORG .","After LOC dismissed on DATE the applicant \u2019s objection of DATE the applicant pursued his legal action and challenged the merits of this decision .","On DATE ORG held an oral hearing and later on DATE dismissed the applicant \u2019s claim as ill - founded . The court heard expert evidence on the environmental impact of the poultry farm , and also the applicant and the applicant \u2019s neighbour .","On DATE and DATE the applicant requested leave to appeal the judgment with ORG .","On DATE ORG refused the applicant \u2019s request to be granted leave to appeal .","On DATE the Government informed the ORG that in response to the pilot judgment PERSON GPE ( no . CARDINAL\/CARDINAL , DATE ) a federal LAW against Protracted Court Proceedings and Criminal Investigations had entered into force on DATE .","NORP In DATE the ORG informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy . The ORG referred to the case PERSON GPE ( ( dec . ) , no . MONEY , ECHR CARDINALIX ) and invited him to inform the ORG whether he intended to make use of the new remedy within the time limit set by the transitional provision of that LAW .","By letter of CARDINAL DATE the applicant informed the ORG in response that he considered it unacceptable to pursue yet another national remedy . He pointed out that his case had been already pending for DATE with this ORG in distinction from the factual situation in PERSON GPE , cited above . It would lead to further delay to initiate a new set of proceedings to which no national case - law exists . Finally , he requested that his application before the ORG be maintained .","The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz \u00fcber den GPE bei \u00fcberlangen PERSON , henceforth : LAW ) was published in LAW I , DATE , page CARDINAL et seq . \u2013 on DATE and entered into force DATE .","The LAW introduces general provisions for civil and criminal cases in sections CARDINAL to CARDINAL of LAW ( Gerichtsverfassungsgesetz , henceforth : ORG ) . For specialised \u2013 such as at hand the administrative \u2013 jurisdictions CARDINAL provision was introduced in the respective codes of procedure , here LAW ) referring to the general rules with marginal adaptions regarding the competent court .","The new remedy combines an instrument to expedite the proceedings , an objection to delay ( PERSON ) , which has to be raised before the court whose proceedings are allegedly unduly delayed ( henceforth : trial court ) , with a subsequent compensation claim to be lodged at ORG ( henceforth : compensation court ) , see section CARDINAL paragraph CARDINAL and CARDINAL ORG .","According to section CARDINAL paragraph CARDINAL ORG a party to proceedings ( LOC ) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation . The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons . A compensation award is not dependent on the determination of fault .","The compensation is awarded in monetary form , if other forms of compensation for lengthy proceedings are not available . Another form of compensation may consist in the court pronouncing that there has been an unreasonable delay in proceedings , section CARDINAL paragraph CARDINAL ORG .","The compensation for DATE of protraction amounts to MONEY","A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim . The action for compensation may not be lodged with a compensation court until DATE after the objection had been raised , see section CARDINAL paragraph CARDINAL ORG . The compensation claim must at the latest be lodged within DATE of the final judicial decision of the trial court .","Proceedings for compensation are subject to court fees . However , the plaintiff will be reimbursed according to the quota of his success in court .","The judgment of the compensation court is subject to appeal on points of law ( Revision ) only .","According to its LAW applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with ORG .","In pending proceedings the objection to delay ( PERSON ) should be raised without delay when LAW entered into force . In these cases the objection preserves a subsequent compensation claim even for the past .","For terminated proceedings whose duration may still become or have already become the subject of a complaint with this ORG it is not necessary to raise the objection prior to filing a compensation claim . The claim based on LAW has to be lodged with the competent court on DATE at the latest ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103684","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2011,"docname":"JUDGE v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained at FAC .","NORP On DATE , the applicant was convicted after trial in the High Court of Justiciary at GPE of CARDINAL offences of a sexual nature .","The victims ( complainers ) were QUANTITY girls , N , C and J. The offences were alleged to been committed DATE when the QUANTITY girls had been in the foster care of the applicant and his wife . N and J were sisters who entered the applicant \u2019s care in DATE . C and her brother and sisters came into the care of the applicant in DATE .","Section CARDINAL of the Criminal Procedure ( GPE ) Act DATE ( \u201c the DATE LAW ) prohibits the admission of evidence or questioning as to the character or sexual history of a complainer in sexual offences unless the evidence or questioning falls within CARDINAL of the exceptions provided for in section CARDINAL . Those exceptions require : ( i ) that the evidence or questioning relate only to a specific occurrence or occurrences of sexual or other behaviour ( section CARDINAL(CARDINAL)(a ) ) ; are relevant to whether the accused is guilty ( section CARDINAL ) ) ; and the probative value of the evidence is significant and likely to outweigh any risk of prejudice to the proper administration of justice ( section CARDINAL(CARDINAL)(c ) ) ( see relevant domestic law and practice below ) .","On DATE , before the trial started , a preliminary hearing was held to consider inter alia an application by the defence under section CARDINAL to admit evidence at trial that :","( i ) in DATE ( around the same time she made her own allegations to the police ) the complainer C had a conversation with a defence witness , M , in which C indicated that she did not believe the allegations that had been made against the applicant by the other girls ( issue CARDINAL(b ) in the application ) ; and","( ii ) that the applicant had made CARDINAL allegations of theft against C , which had been investigated by the police and led to reports to ORG ( the prosecution authority ) ( issue CARDINAL in the application ) .","The preliminary hearing judge decided to exclude the evidence in issue CARDINAL(b ) on the grounds that , as a general rule , evidence of facts affecting the credibility of a witness , apart from the evidence of the witness herself , was inadmissible unless the facts were also relevant to the questions at issue ; a witness should not be asked to express an opinion as to the credibility of another witness . He excluded the evidence in issue CARDINAL on the grounds that the test of relevance in section CARDINAL(CARDINAL)(b ) had not been met .","NORP In their evidence at trial all CARDINAL complainers gave evidence as to the offences which they alleged had been committed against them . J also gave evidence that she had observed CARDINAL incident of abuse involving N. The jury also heard evidence that , in DATE , following a discussion between N and J , the applicant \u2019s conduct was reported to the authorities and all CARDINAL complainers were removed from his household . All CARDINAL complainers gave evidence that the reason they had delayed in reporting the abuse was that they feared that they would be separated from their respective siblings . Evidence was also led by the prosecution from a brother of N and J. The brother testified that he had seen a different instance of sexual activity between N and the applicant from that observed by J.","Each complainer was cross - examined to the effect that nothing of an inappropriate manner had ever occurred and that they had fabricated aspects of their evidence . N and J were examined as to differences between the statements they gave to the police and their testimony in court . C was examined as to why she had denied anything had happened to her at all , when first interviewed by the police in DATE . A suggestion was put to J that she had colluded with N as to what she said she had seen the applicant doing to N. It was also put to N and C that the applicant \u2019s alleged erectile dysfunction rendered him incapable of certain of the activities of which each of them had testified .","The applicant gave evidence denying any inappropriate conduct had ever occurred involving any of the complainers . He gave evidence as to his alleged erectile dysfunction , which , he said , meant the conduct described in particular by N and C could not have occurred . He gave evidence of a number of arguments between him and N just before they reported his conduct to the authorities in DATE . He suggested PERSON had misunderstood the incident she had observed between him and PERSON also suggested that the CARDINAL complainers had lied , possibly out of self - interest . CARDINAL character witnesses gave evidence in his defence . The applicant \u2019s general medical practitioner gave evidence that the applicant had sought help for erectile dysfunction . The applicant \u2019s wife gave evidence as to the general circumstances in the house , the applicant \u2019s character and her impression of the relationships he had with the complainers .","The applicant was convicted by a majority verdict of the jury as charged . As is the normal practice in NORP criminal law , when convicting the applicant , the jury did not give reasons for their verdict .","The applicant appealed against his conviction . He submitted that first , the preliminary hearing judge had erred in excluding the evidence set out in issues CARDINAL(b ) and CARDINAL of the defence application . Second , he submitted that the verdict of the jury was a miscarriage of justice because it had been taken in ignorance of evidence that C was motivated to tell lies about him because he had reported her to the police for theft . He argued that this evidence would have been of high probative value . It was particularly relevant because in his charge ( summing up ) to the jury the presiding judge had advised the jury that the evidence of C might be essential to the other charges .","NORP The appeal was dismissed by ORG of Justiciary sitting as a court of criminal appeal ( \u201c the Appeal Court \u201d ) on DATE . ORG accepted that the preliminary judge had erred in excluding the evidence regarding issue CARDINAL(b ) since the proposed line of questioning would not have been prohibited by CARDINAL of LAW . He had been in error in thinking that the proposed line of questioning would have been to invite the defence witness M to comment on the credibility of C. Instead , it had been to question C \u2019s credibility by proving that she had made CARDINAL contradictory statements : CARDINAL to M and another to the police . However , ORG concluded that the fact that this evidence was not before the jury did not amount to a miscarriage of justice . Whether evidence had been wrongly excluded was not the same question as whether the trial was fair ; the issue of miscarriage of justice depended on the materiality of that evidence . The question was whether , had the evidence been before the jury , there would have been any real possibility that the verdict of the jury would have been different . ORG observed :","\u201c In the present case , the jury had before them undisputed evidence that when C was interviewed by police officers in DATE she denied that she had been sexually abused . The jury had no basis for rejecting that evidence . Notwithstanding that evidence , the jury must have accepted C \u2019s evidence that she had in fact been abused by the [ applicant ] , in the manner outlined in the CARDINAL charges relating to her . It is a well - known phenomenon for individuals who have been victims of abuse when they were children to be unwilling or reluctant to disclose such abuse , or to delay in doing so . Evidence that C had also , during DATE , indicated to defence witness M that she did not believe allegations of abuse made by the other CARDINAL complainers would , at its highest , merely have provided another instance of the same phenomenon . In our opinion it would not have added anything significant to the jury \u2019s consideration of the case . On the contrary , the jury was liable to have regarded those CARDINAL chapters of evidence as consistent manifestations of reluctance on the part of C to disclose abuse which she herself had suffered , a reluctance which common sense and experience of life indicated was understandable and one she subsequently overcame .","The jury \u2019s verdicts were returned after they had heard evidence from all CARDINAL complainers and the [ applicant ] himself . That involved their accepting that the other CARDINAL complainers had been sexually abused by the [ applicant ] while they were in his care in similar circumstances to complainer C. It is also reasonable to assume that the jury must have accepted the evidence of the eye - witness to CARDINAL instance of abuse against complainer PERSON When all these factors are taken into account , there appears to be no real possibility that the exclusion of evidence about what complainer C may have said to defence witness M would have affected the jury \u2019s verdicts , whether in relation to the charges involving C or any of the other charges . \u201d","ORG also considered that the evidence in regard to issue CARDINAL ( the alleged thefts ) had been properly excluded . None of CARDINAL requirements contained in section CARDINAL(CARDINAL)(a)-(c ) had been met . In particular , the CARDINAL allegations of theft did not make it more or less likely that the applicant had been guilty of sexual abuse , nor did the making of those allegations by the applicant in DATE or DATE make it more or less probable that C had fabricated allegations of sexual abuse in DATE . The probative value of that evidence was insignificant and would have been calculated to blacken by innuendo the character of C by evidence relating to matters unconnected with the charges faced by the applicant .","NORP Scots criminal law distinguishes between summary and solemn procedure . In the former the trial takes place before a judge sitting alone . In the latter , which is reserved for more serious offences , the trial takes place before a judge and a jury of CARDINAL members on the basis of an indictment . LAW and ORG and DATE Act provide for the form and content of the indictment .","The admission of evidence is a matter either for the presiding judge or , as occurred in this case , if an application is made before the start of the trial , a preliminary hearing judge .","By section CARDINAL(CARDINAL ) of the Criminal Procedure ( GPE ) Act DATE , immediately after the close of the evidence for the prosecution , the accused may intimate to the court his desire to make a submission that he has no case to answer both : ( a ) on an offence charged in the indictment ; and ( b ) on any other offence of which he could be convicted under the indictment . Subsections CARDINAL(CARDINAL)-(CARDINAL ) provide :","\u201c ( CARDINAL ) If , after hearing both parties , the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned , in relation to that offence , in paragraph ( b ) of subsection ( CARDINAL ) above , he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment .","( CARDINAL ) If , after hearing both parties , the judge is not satisfied as is mentioned in subsection ( CARDINAL ) above , he shall reject the submission and the trial shall proceed , with the accused entitled to give evidence and call witnesses , as if such submission had not been made .","( CARDINAL ) A submission under subsection ( CARDINAL ) above shall be heard by the judge in the absence of the jury . \u201d","If the trial judge rejects a submission of no case to answer , the defence case is presented . The prosecution and defence then address the jury . By section CARDINAL of LAW , the defence has the right to speak last . The presiding judge then charges the jury . The role of the presiding judge in charging the jury was restated by the Lord Justice General in GPE v. ORG ( DATE ) JC CARDINAL :","\u201c The primary duty of the presiding judge is to direct the jury upon the law applicable to the case . In doing so it is usually necessary for him to refer to the facts on which questions of law depend . He may also have to refer to evidence in order to correct any mistakes that may have occurred in the addresses to the jury , and he may have occasion to refer to the evidence where controversy has arisen as to its bearing on a question of fact which the jury has to decide . But it is a matter very much in his discretion whether he can help the jury by resuming the evidence on any particular aspect of the case . \u201d","The \u201c utmost care \u201d should be taken to avoid trespassing upon the jury \u2019s province as masters of the facts ( ORG v. HM Advocate ( DATE ) SLT CARDINAL ) and a presiding judge should always be slow to express his own views on questions of fact in case he thereby influences the jury whose task it is to determine all questions of fact ( PERSON v. ORG ( DATE ) JC MONEY ) . A conviction will be quashed if ORG finds that the presiding judge unduly impressed his own views on the evidence upon the jury . This may be the case even if the presiding judge attempts to cure this defect by later emphasising that the evidence is entirely a matter for the jury ( ORG v. ORG ( DATE ) SLT CARDINAL ) .","The jury may return CARDINAL of CARDINAL verdicts : CARDINAL of guilty and CARDINAL alternative acquittal verdicts of not guilty or not proven . No reasons for any of the CARDINAL verdicts are given by the jury . However , by section CARDINAL(CARDINAL)(b ) of LAW , there is a right of appeal in respect of any alleged miscarriage of justice , which includes a miscarriage based on the jury having returned a verdict which no reasonable jury , properly directed , could have returned . Thus a conviction may be quashed or varied when the jury \u2019s verdict is logically inconsistent or lacking in rationality , for example , when they can not logically acquit on certain counts in an indictment and convict on others ( see , for example , PERSON v. ORG ( DATE ) SLT CARDINAL ; PERSON v. ORG [ DATE ] HCJAC CARDINAL ) .","The compatibility of the jury system with LAW was considered in PERSON v. ORG [ CARDINAL ] HCJAC CARDINAL , judgment of DATE . ORG considered the Second Section \u2019s judgment in GPE v. GPE , no . CARDINAL\/CARDINAL , DATE ( in which ORG has subsequently given judgment : PERSON GPE [ ORG ] , no . CARDINAL\/CARDINAL , DATE ) . It also considered a judgment of ORG in A. v. ORG , CARDINAL\/CARDINAL , DATE , in which Judge PERSON , giving the lead judgment of the court , considered that LAW in Taxquet had not intended to establish a principle that a jury had to give reasons for its decisions . ORG concluded ( at CARDINAL and CARDINAL ) :","\u201c We find Judge PERSON \u2019s full and careful analysis of the Taxquet judgment and the earlier GPE jurisprudence highly persuasive and we respectfully agree with her that the judgment is not to be read as imposing a requirement that a jury supply reasons for its verdict .","Just as in any other jury trial in GPE , the verdict returned by the jury in the present case is not returned in isolation . It is given within a framework which includes , in particular , the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge . It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the ORG case and the evidence which the ORG invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict . Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted . It is also not suggested that the trial Judge \u2019s charge to the jury did not adequately identify all the matters which the ORG had to establish , or fail to analyse or describe the necessary elements or ingredients in the offence . Accordingly , from that framework and also from the evidence in the case , the basis of the conviction is discernable . With a jury verdict thus placed in such a framework , we do not consider , having regard to the case law of the ECtHR to which we were referred , that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of LAW . \u201d","NORP The current versions of CARDINAL and CARDINAL of the DATE Act were introduced by ORG by ORG ( Procedure and Evidence ) ( GPE ) Act DATE . They provide as follows :","\u201c CARDINAL Restrictions on evidence relating to sexual offences","( CARDINAL ) In the trial of a person charged with an offence to which section CARDINAL of this Act applies , the court shall not admit , or allow questioning designed to elicit , evidence which shows or tends to show that the complainer\u2014","( a ) is not of good character ( whether in relation to sexual matters or otherwise ) ;","( b ) has , at any time , engaged in sexual behaviour not forming part of the subject matter of the charge ;","( c ) has , at any time ( other than shortly before , at the same time as or shortly after the acts which form part of the subject matter of the charge ) , engaged in such behaviour , not being sexual behaviour , as might found the inference that the complainer\u2014","( i ) is likely to have consented to those acts ; or","( ii ) is not a credible or reliable witness ; or","( d ) has , at any time , been subject to any such condition or predisposition as might found the inference referred to in sub - paragraph ( c ) above .","CARDINAL Exceptions to restrictions under section CARDINAL . S","( CARDINAL ) The court may , on application made to it , admit such evidence or allow such questioning as is referred to in subsection ( CARDINAL ) of CARDINAL of this LAW if satisfied that\u2014","( a ) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating\u2014","( i ) the complainer \u2019s character ; or","( ii ) any condition or predisposition to which the complainer is or has been subject ;","( b ) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged ; and","( c ) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited .","( CARDINAL ) In subsection ( CARDINAL ) above\u2014","( a ) the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature ;","( b ) \u2018 the proper administration of justice\u2019 includes\u2014","( i ) appropriate protection of a complainer \u2019s dignity and privacy ; and","( ii ) ensuring that the facts and circumstances of which a jury is made aware are , in cases of offences to which section CARDINALC of this Act applies , relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury \u2019s verdict ... \u201d","The DATE Act was preceded by a public consultation and a Policy Memorandum , which was published by ORG . The Policy Memorandum stated that evidence as to the sexual history and character of a complainer in sexual offences was rarely relevant and , even where it was , its probative value was frequently weak when compared with its prejudicial effect . It involved invasion of the complainer \u2019s privacy and dignity and diversion from the issues which required to be determined at trial .","Sections CARDINAL and CARDINAL were considered to be compatible with LAW by the High Court of Justiciary in PERSON ( PERSON ) v. HM Advocate ( also known as GPE v. ORG ) ( DATE ) MONEY CARDINAL , where the appellant faced trial on charges of rape and sexual assault . The Lord ORG , giving the opinion of the court , referred first to the \u201c twin myths \u201d that , in a rape case , a complainer \u2019s previous sexual experience or adverse sexual reputation made it more likely that she consented to intercourse and made it less likely that she was a credible witness . His Lordship continued :","\u201c The embarrassment and humiliation of a complainer in a rape trial is a genuine social problem . Counsel agree that the protection of the complainer from unfair and intrusive attacks on her sexual history or character and the exclusion of evidence tendered in pursuit of the twin myths to which I have referred are , in general , legitimate legislative aims that recognise the complainer \u2019s rights to privacy under LAW ( cf R v A ( No CARDINAL ) , [ DATE ] CARDINAL AC CARDINAL , PERSON of PERSON at paras . [ CARDINAL ] , [ CARDINAL]-[CARDINAL ] ; SN v GPE , No . CARDINAL , DATE , unrepd , at para CARDINAL ) .","[ CARDINAL ] But the protection of the complainer can not be seen apart from the basic principles of fairness in NORP criminal procedure which entitle everyone accused of a crime to defend himself , to confront his accusers and to have a fair opportunity to put his own case . These principles underpin a value that is fundamental to criminal jurisprudence in a free society , namely the protection of the citizen from being wrongly convicted .","[ CARDINAL ] The difficult problem of reform in this emotive branch of the law is to reconcile the legislative aims to which I have referred with the basic principles of fairness ( SN v GPE , supra , at para [ CARDINAL ] ) . Although article CARDINAL expresses the right to a fair trial in unqualified terms , what is required for fairness may vary according to context ( cf ORG Secretary , [ DATE ] CARDINAL ORG , ORG at para CARDINAL ) . Individual evidential or procedural rules may be devised to take account of rights and interests other than those of the accused . Such interests include respect for the complainer \u2019s rights under article CARDINAL ( cf PERSON v the GPE , supra , at para CARDINAL ) , and the public interest in the detection and prosecution of crime . The protection of such interests is a clear and proper public objective that justifies a legislature in qualifying to a limited extent the constituent rights comprised within article CARDINAL ( Brown v Stott , supra , Lord PERSON of PERSON at p CARDINALA ) ; but the legislature can not qualify them to such an extent that the overall fairness of the trial is compromised ( PERSON v Stott , supra ; PERSON and ORG , supra , at para CARDINAL ) .","[ CARDINAL ] In my opinion , the primary aim of the DATE legislation and the subordinate and specific aim set out in paragraph CARDINAL of ORG ( supra ) , are both legitimate legislative aims . The balancing exercise by which those aims are to be achieved without prejudice to the overall fairness of the trial lies in the first instance within the province of the legislature . The underlying aim of CARDINAL involves a sensitive social issue that is more appropriate for the consideration of the legislature than that of the courts . In my opinion , the enactment of sections CARDINAL and CARDINAL was within the legitimate area of discretion of ORG . The ORG had an evidential basis on which to exercise its judgment in the matter , namely the research evidence referred to in the Policy Memorandum , supported by the evidence of CARDINAL of its authors to ORG . The underlying policy was fully considered and tested during the legislative process . The policy justification was , in my view , coherent .","[ CARDINAL ] But although the legislation is directed to legitimate aims , there remains the question whether the restrictions that it imposes on the defence are greater than are strictly necessary for the achievement of those aims ( cf Rowe and ORG , ( DATE ) CARDINAL EHRR CARDINAL , at para CARDINAL ; PERSON v GPE , ( DATE ) CARDINAL EHRR CARDINAL ; PERSON , supra ) .","[ CARDINAL ] If CARDINAL had imposed an absolute prohibition on the questioning or evidence to which it refers , there would have been a violation of article CARDINAL ( cp R v Seaboyer , supra , McLachlin J at pp CARDINAL - CARDINAL ; GPE and PERSON v GPE ORG , DATE ORG CARDINAL , at paras [ CARDINAL ] , [ CARDINAL ] ) .","[ CARDINAL ] The decision of the court under LAW will in every case depend on the nature of the prosecution case and of the proposed questioning or evidence . The probative value of evidence that the complainer had a sexual experience with another man may be much less than that of evidence that she had a sexual relationship with the accused ; and there may be strong reasons for the court \u2019s allowing reference to a matter affecting the complainer \u2019s character that has no conceivable sexual connotations ; for example , a previous conviction of the complainer for perjury or for perverting the course of justice , or some mental condition of the complainer that predisposes her to fantasise or to exaggerate .","[ CARDINAL ] Section CARDINAL , in my view , is a reasonable and flexible response to the problem and a legitimate means of achieving the legislative objective ( R v A ( No CARDINAL ) , supra , Lord Hope of PERSON at paras CARDINAL , CARDINAL , CARDINAL - CARDINAL ) . It lies within the discretionary area of the judgment that is confided to the ORG ( R v ORG , ex p Kebilene , [ DATE ] CARDINAL ORG CARDINAL , at p CARDINAL ; ORG Secretary , supra , ORG at paras DATE ) and in my view meets the requirements of proportionality ( PERSON Minister of Agriculture , [ DATE ] CARDINAL AC CARDINAL , Lord PERSON at p DATE ) . \u201d","The accused in that case was subsequently convicted and appealed ( PERSON v. ORG Advocate DATE SLT CARDINAL ) . The conviction was quashed on different grounds . However , in respect of section CARDINAL , ORG confirmed that \u201c behaviour \u201d in that section should not be given a restrictive meaning ; it would also include acts or omissions of the complainer and statements made by him or her , provided that they were relevant to whether the complainer was likely to have consented to the sexual acts alleged or reflect upon his or her credibility or reliability ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98115","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF MENSHAKOVA v. UKRAINE","importance":3,"conclusion":"Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in LOC .","She worked at the ORG - owned company \u201c PERSON \u201d ( \u201c the SMZ \u201d ) . Following her retirement from the ORG on DATE the applicant worked for the ORG 's subsidiary company \u201c LOC ( \u201c the FAC \u201d ) until DATE .","She instituted several sets of court proceedings against her former employers , seeking initially recovery of salary arrears and subsequently compensation for late payment of salary pursuant to LAW . Under that provision , retired employees were entitled to claim compensation if their salary or related payments due to them were not paid on DATE of termination of employment , i.e. such compensation concerned delays in payment after termination of employment .","NORP In DATE the applicant lodged a claim with ORG of PERSON ( \u201c the ORG \u201d ) against the SMZ . She sought recovery of salary arrears .","On DATE the court awarded her CARDINAL NORP hryvnyas ( ORG ) in salary arrears . The period of the applicant 's work concerning which she was awarded the above sum in salary arrears was not specified .","On DATE the applicant instituted a new set of proceedings in the same court against the ORG , seeking compensation for the latter 's failure to pay her salary arrears in due time .","On DATE the court , referring to paragraph CARDINAL of Article CARDINAL of LAW , awarded her UAH CARDINAL,CARDINAL.CARDINAL in compensation for non - payment of salary arrears for the period of DATE , during which her salary arrears had remained unpaid . The court noted that the respondent company failed to appear before it without informing about the reasons for its absence . It further observed that in his written statement submitted to the court on DATE the company 's representative accepted the applicant 's claim as regards the amount of compensation for the period of DATE .","The judgments of DATE ( salary arrears ) and CARDINAL DATE ( compensation for late payment ) were not appealed against and became final . The enforcement proceedings in respect of these judgments were instituted on DATE and CARDINAL DATE respectively . On DATE the applicant received the full amounts of the awards .","On DATE the ORG lodged a request with ORG for leave to appeal against the judgment of CARDINAL DATE under the new cassation procedure . In its appeal the ORG alleged that it had not been responsible for the delay in payment of salary arrears to the applicant , that its representative before the first instance court had not been given the right to accept the applicant 's claim , that the ORG had not been duly informed about the date and time of the hearing before that court , and that the latter 's judgment did not contain calculations of the awarded amount . On DATE ORG granted such leave and invited the applicant to participate in the hearing on the ORG 's appeal scheduled for CARDINAL DATE . On the latter date ORG of ORG quashed the judgment of DATE on the ground that ORG had examined the case in the absence of the ORG and remitted it for fresh consideration .","Meanwhile , on DATE the applicant lodged a new claim with ORG , seeking compensation for the period of DATE , during which the ORG had failed to pay her salary arrears awarded by the judgment of DATE .","On DATE the applicant requested ORG to examine her claims of CARDINAL DATE and DATE jointly . In the course of a hearing on DATE the court allowed the applicant 's request .","On DATE the court adopted a judgment dismissing the applicant 's claims . Its relevant provisions read as follows :","\u201c ... The court , having heard the plaintiff [ and ] having examined the materials of the civil case , considers that the claims are unsubstantiated and may not be allowed for the following reasons .","In particular , the court established that on DATE the plaintiff had retired [ from the SMZ ] ... By the judgment of ORG ... of DATE , she was awarded CARDINAL [ NORP hryvnyas ] in salary arrears ... Therefore , the dispute concerning the recovery of sums in the event of termination of employment was determined and [ the matter ] turned to the stage of enforcement . The said judgment was enforced on DATE ...","In accordance with LAW of GPE , if [ the employer ] fails to pay the employee [ whose contract of employment was terminated ] the sums due to him within the time - limits set by the law , [ the former ] shall pay the employee his average wages for the whole period of the delay until DATE of the factual payment .","As it appears from the materials of the case , the plaintiff retired on DATE , the sum of her salary arrears on DATE of the retirement was CARDINAL [ NORP hryvnyas ] which was recovered by the judgment of DATE .","Therefore , the dispute concerning the recovery of sums in the event of termination of employment was determined on DATE and [ the matter ] turned to the stage of enforcement . The plaintiff lodged with the court her first claim for compensation under LAW of GPE on DATE ... having missed the DATE term envisaged by Article CARDINAL of LAW of GPE . The plaintiff and her representative did not furnish sufficient and objective evidence demonstrating that there had been a reasonable excuse for missing the procedural term , and she did not request an extension of [ that ] term ; thus , the court [ discerns ] no grounds to renew it in accordance with the requirements of LAW of LAW of GPE .","In the light of the foregoing ... [ the court ]","Decided :","To dismiss the claim of GPE ... \u201d","The applicant appealed , contending that the time - limit at issue had started to run on DATE , DATE when she had received her belated salary payment .","On DATE the ORG ( the former ORG ) upheld the judgment of CARDINAL DATE . It rejected the applicant 's contention that the limitation period under LAW had started to run on DATE , when she had actually obtained the amount awarded by the judgment of DATE . It held that the \u201c factual payment \u201d had been made on DATE and that the limitation period had started to run from DATE .","On DATE a panel of CARDINAL judges of ORG rejected the applicant 's request for leave to appeal in cassation as unsubstantiated .","In DATE the applicant instituted proceedings in ORG against the SMSK , seeking recovery of salary arrears and compensation for their prolonged non - payment .","On DATE the court awarded her ORG CARDINAL in salary arrears and compensation for late payment of these arrears for the period of DATE . This judgment was not appealed against and became final . On an unspecified date PERSON instituted enforcement proceedings in respect of the judgment . On DATE the enforcement proceedings were discontinued upon the applicant 's request . On DATE the applicant received the full amount of the award of CARDINAL DATE .","NORP In DATE the applicant again instituted proceedings in ORG against the SMSK , seeking compensation for the latter 's failure to pay her salary arrears from CARDINAL DATE .","On DATE the court rejected the applicant 's claims as unsubstantiated . The applicant appealed in cassation , contending that the proceedings instituted by her in DATE concerned salary arrears and compensation for their non - payment during DATE , while in her new claim lodged with the courts in DATE she requested compensation for the period after DATE .","On DATE ORG quashed the decision of the first - instance court and adopted a new decision by which it discontinued the proceedings in the applicant 's case . It held that the matter had already been determined by ORG on DATE . The relevant parts of the decision of DATE read as follows :","\u201c ... In accordance with LAW , the court shall discontinue the proceedings , if there is a judgment , which has entered into the force of the law , concerning a dispute between the same parties , on the same subject - matter and grounds .","It appears from the case materials that on DATE ORG adopted a judgment , by which the plaintiff was awarded CARDINAL [ NORP hryvnyas ] in respect of salary arrears and average wages for the delay in payment in the event of termination of employment during DATE to CARDINAL DATE ...","Therefore , [ the court finds that ] the dispute concerning the recovery of wages for the period of the delay in payment has been determined on DATE and that the admission of a new claim concerning the same subject - matter and based on the same grounds would be contrary to Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure ...","Pursuant to ORG CARDINAL and CARDINAL of the Code of Civil Procedure of GPE , [ the court ]","Decided :","To quash the judgment ... of DATE and to discontinue the proceedings concerning the claim of GPE ... against [ the SMSK ] ... \u201d","On DATE ORG ( ORG court dealing with disputes between companies and other economic entities before DATE ) initiated bankruptcy proceedings against the ORG . The applicant and Mr PERSON joined the proceedings as the ORG 's creditors . By a decision of DATE , the arbitration court ordered the inclusion of ORG awards of CARDINAL July CARDINAL and CARDINAL DATE in the applicant 's favour into the list of creditor 's claims .","By a decision of DATE , partially amended by a decision of DATE , the same court quashed the decision of DATE and discontinued the bankruptcy proceedings on the ground that the ORG had paid the amounts claimed by the applicant and Mr PERSON in full .","On CARDINAL and DATE respectively , Mr PERSON and the applicant lodged with the court requests for supervisory review of the decisions of DATE and DATE .","On DATE ORG rejected the request of Mr PERSON as unsubstantiated .","By a letter of DATE , ORG informed the applicant that her request for supervisory review had not been submitted to ORG as it had been directed against the same decisions as the request of Mr PERSON","On DATE the applicant instituted proceedings in ORG of PERSON against ORG , seeking compensation for the latter 's failure to consider her request for supervisory review of its decisions of DATE and DATE .","On DATE ORG discontinued the proceedings on the ground that the applicant 's claim was not to be considered by the courts , as ORG enjoyed immunity from civil proceedings in respect of its procedural activities . On DATE ORG upheld the decision of the firstinstance court .","The relevant provisions of the LAW read as follows :","\u201c ... A judge shall not [ deal with ] a claim :","...","CARDINAL ) NORP if there is a judgment , which has entered into the force of the law , concerning a dispute between the same parties , concerning the same subject and based on the same grounds , or a court 's ruling endorsing the plaintiff 's withdrawal of the claim or a friendly - settlement agreement between the parties ... \u201d","\u201c ... A court shall discontinue the proceedings :","...","CARDINAL ) if there is a judgment , which has entered into the force of the law , concerning a dispute between the same parties , concerning the same subject and based on the same grounds , or a court 's ruling endorsing the plaintiff 's withdrawal of the claim or a friendly - settlement agreement between the parties ... \u201d","In the course of consideration of a case in cassation the court shall verify whether the first instance court 's judgment is lawful and well - founded ...","The court shall not be bound by the reasons of an appeal in cassation ... and must review the entire case .","The [ first instance court 's ] judgment shall be quashed in cassation and the proceedings shall be discontinued or the claim shall be left without consideration on the grounds envisaged in Articles CARDINAL and CARDINAL of the Code .","The relevant provisions of the LAW , as worded at the material , read as follows :","\u201c An enterprise , entity , or organisation shall pay the sums due to a [ dismissed or retired ] employee on DATE of termination of his employment . If the employee did not work on DATE of his [ dismissal or retirement ] , the abovementioned sums shall be paid to him not later than the day following DATE of the submission of his payment request .","In the event of a dispute over the amount to be paid to a [ dismissed or retired ] employee , [ the employer ] ... shall pay the undisputed amount within the time - limit envisaged by this [ provision ] . \u201d","\u201c In the absence of a dispute over the amount to be paid to a [ dismissed or retired ] employee , [ the employer ] ... shall pay him his average wages for the whole period of the delay in payment of the amounts envisaged by LAW of this Code until DATE of their factual payment , if the delay was due to the fault of [ the employer ] ...","In the event of a dispute over the amount to be paid to a [ dismissed or retired ] employee , [ the employer ] ... shall pay him compensation envisaged by this [ provision ] , if the dispute was resolved in favour of the employee . If the dispute was resolved partly in favour of the employee , the amount of compensation for the delay shall be determined by the body deciding on the dispute ... \u201d","\u201c An employee may submit an application concerning a labour dispute directly to a ... court within DATE following DATE on which he became or should have become aware of a violation of his right ... \u201d","The relevant extracts from ORG read as follows :","\u201c CARDINAL . Having established , in the course of consideration of a case concerning recovery of [ average ] salary in connection with a delay in payment in the event of termination of employment , that an employee was not paid the amounts due to him ... on DATE of his [ dismissal or retirement ] ... a court shall award , under LAW , the employee average salary for the whole period of the delay in payment ; if no such payment has been made before the consideration of the case [ the court shall award average salary ] until the date of the adoption of the judgment , safe in case the employer proofs that it was not responsible [ for the delay ] . The mere absence of funds shall not exclude the employer 's responsibility .","In case no payment [ in the event of termination of employment ] took place because of a dispute on the amount to be paid , the claims concerning the responsibility for the delay ... shall be allowed in full , if the dispute was determined in favour of the plaintiff or if a court dealing with the case reaches such a conclusion . In case the claim is partly allowed , the court determines the amount of compensation for the delay in payment , taking into account the disputed sum which [ the plaintiff ] was entitled to receive , the part of the claim it constituted , the value of the part [ of the claimed amount ] in comparison with average salary and other specific ...","NORP ... A failure to pay sums due to an employee on DATE of his dismissal or , if he was absent from work on DATE , on DATE following the submission of his request for payment constitutes a ground for responsibility under LAW . In this case , the running of a DATE time - limit for lodging an application with a court commences on DATE following the payment of the above mentioned sums , irrespective of the delay in payment .","A failure to meet the DATE time - limit for an application to a court as such constitutes a ground for dismissal of the claim , however , if the court finds that [ the claim ] is unsubstantiated , it shall dismiss [ the claim ] on [ the latter ] ground ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87608","languageisocode":"ENG","respondent":"CYP","branch":"CHAMBER","date":2008,"docname":"CASE OF DOUGLAS v. CYPRUS","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE . The applicant was married on DATE in GPE . His marriage was dissolved on DATE .","On DATE his former wife lodged an application ( no.CARDINAL\/CARDINAL ) with ORG for adjudication of certain property disputes between her and the applicant . On DATE the court issued an interim injunction prohibiting the applicant from selling , transferring or otherwise disposing of certain of his properties consisting of an apartment , a plot of land and CARDINAL bank accounts . On DATE the applicant submitted his defence and counter - claims . He claimed that he and his former wife had entered into an agreement in DATE for the settlement of any potential property dispute . On DATE his former wife filed her response to the applicant \u2019s defence , and her defence in respect of his counter - claim .","The case was adjourned on CARDINAL occasions at the request of the applicant . The hearing of the interim order application began on DATE . On DATE it was decided that the prohibitory injunction would remain in force pending the final determination of the proceedings . An amendment was made in respect of the applicant \u2019s plot of land , which would only be bound in respect of CARDINAL of the undivided share of the property .","On DATE , the applicant lodged an appeal against the injunction . He maintained that the court had erred in law in issuing it solely on the basis of the affidavit of his former wife and without further evidence substantiating her allegations . In another ground of appeal he complained about the delay that had occurred in the proceedings , which had severely restricted his professional activities .","On DATE ORG dismissed the appeal and upheld the injunction as the applicant \u2019s former wife had entered into sufficient detail in her affidavit to justify non inclusion of further relevant documents . The court nevertheless expressed its concern about the delay in the proceedings .","The examination of the main application ( no.CARDINAL\/CARDINAL ) by ORG began on DATE . Of the CARDINAL sittings held DATE and DATE CARDINAL was adjourned at the applicant \u2019s request .","On DATE , ORG ordered the applicant to pay QUANTITY ( ORG ) plus interest to his former wife . The court dismissed the applicant \u2019s submission that an agreement had been concluded between himself and his former wife . The counter - claim lodged by the applicant was dismissed in its entirety . Moreover , the court considered that the applicant \u2019s evidence had been unreliable and given in bad faith . It noted that he had been unable to control himself during the proceedings and had become disrespectful towards the court and his former wife \u2019s counsel .","On DATE , the applicant lodged an appeal with ORG .","On DATE , the applicant \u2019s former wife lodged with ORG an application by summons requesting a \u2018 garnishee ORG ( third party debt order ) . The application was set for hearing on DATE . On DATE the applicant filed an objection and maintained that the application had been filed in bad faith .","On DATE the applicant applied for suspension of the execution of the court \u2019s decision dated DATE , until the examination of his appeal . This was set for hearing on DATE . On DATE the applicant \u2019s wife objected to his application as the applicant had not complied with the aforementioned court order .","On DATE ORG , following a hearing , dismissed the application for suspension of the court \u2019s decision dated DATE . The court declined to grant the requested order in light of the applicant \u2019s unreliability and the evident danger that his former wife would remain without a remedy in the event that the order was granted . The court rejected the applicant \u2019s allegations that the application was made in bad faith and found his claim that he would face considerable financial difficulties in the event of non suspension unsubstantiated . The application was accordingly dismissed with legal costs awarded to the applicant \u2019s former wife .","On DATE the court granted the garnishee order . Accordingly the applicant \u2019s bank was ordered to pay his former wife the amount of ORG CARDINAL with PERCENT interest from DATE until payment and expenses . The court ordered the applicant \u2019s former wife to guarantee the return to the applicant of the whole amount payable upon the execution of the court \u2019s decision dated DATE in the event that his appeal was successful . The guarantee would be renewable until the completion of the appeal proceedings . On DATE , the applicant lodged an appeal with ORG against the decision of ORG dated DATE .","On DATE ORG granted the applicant \u2019s appeal against the family court \u2019s judgment of DATE and against its order of CARDINAL DATE . It noted that the first - instance court had found the applicant an absolutely unreliable witness and his evidence was , as such , dismissed in its entirety . It further noted that the first - instance court had based its conclusion as to the applicant \u2019s reliability as a witness on various factors including his behaviour in and outside the court room . It was held that the first - instance court ought not to have taken those factors into account in the assessment of the applicant \u2019s evidence and therefore the case was remitted for a retrial , but only in respect of the former wife \u2019s claim over the applicant \u2019s plot of land .","On DATE judgment was issued by the family court in favour of the applicant \u2019s former wife . The court noted that the proceedings had been delayed by the applicant , who failed to appear before the court on CARDINAL occasions . It was found that no agreement had been concluded between the applicant and his wife as to any potential property dispute . Given his former wife \u2019s contribution to his enrichment during the period of their wedlock it was held that she was entitled to a third of the value of his plot of land .","On DATE the applicant lodged an appeal against the decision of the family court before ORG . These proceedings are currently pending ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-121777","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2013,"docname":"CASE OF G\u00c1LL v. HUNGARY","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)","judges":"Andr\u00e1s Saj\u00f3;Guido Raimondi;Helen Keller;Neboj\u0161a Vu\u010dini\u0107;Peer Lorenzen","text":["The applicant was born in DATE and lives in LANGUAGE .","The applicant , a civil servant for DATE , had been in the service of ORG . On DATE she was dismissed , with effect from DATE . Her dismissal was part of a wave of similar measures throughout the entire civil service .","On dismissal , the applicant was statutorily entitled to CARDINAL months\u2019 salary for DATE and DATE , during which time she was exempted from working . In addition , she was to receive severance pay amounting to CARDINAL months\u2019 salary in application of section LOC ) of Act no . XXIII of DATE on ORG ( see paragraph CARDINAL below ) .","These benefits were subsequently taxed at PERCENT in their part exceeding MONEY ( ORG ) . The exceeding part was ORG CARDINAL , the tax amounting to ORG CARDINAL . This represented an overall tax burden of PERCENT on the entirety of the severance , as opposed to the general personal income tax rate of PERCENT in the relevant period .","The tax amount in question was never disbursed to the applicant , but was withheld by the employer and directly transferred to the tax authority on DATE .","Section CARDINAL of Act no . XXIII of DATE on ORG provides as follows :","\u201c ( CARDINAL ) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... .","( CARDINAL ) The amount of severance shall be , if the civil servant \u2019s service has been at least :","...","g ) DATE : CARDINAL months\u2019 salary ...","The amount of severance shall be increased by CARDINAL months\u2019 salary if the service relationship is terminated within DATE prior to the civil servant \u2019s qualification for old - age pension [ section LAW ) ] or anticipated old - age pension . \u201d","On DATE Parliament adopted Act no . XC of DATE on ORG ( \u201c the LAW \u201d ) . The LAW , which was published in ORG on CARDINAL DATE , introduced inter alia a new tax on certain payments to employees in the public sector whose employment was terminated . Consequently , severance pay and other payments related to the termination of employment exceeding ORG CARDINAL became subject to a PERCENT tax . However , income tax and social security contributions already paid could be deducted from the tax . Notwithstanding the limit of ORG CARDINAL , the statutory provisions on the sum of severance pay DATE in some cases amounting to CARDINAL months\u2019 remuneration \u2013 were not modified . The bill preceding the LAW justified the tax with reference to public morals and the unfavourable budgetary situation of the country .","The Act entered into force on DATE ; however , the tax was to be applied to the relevant revenues as from DATE . Simultaneously , the LAW was also amended , establishing retroactive tax liability in respect of the given tax year concerning \u201c any remuneration against good morals \u201d paid in the public sector .","The LAW was challenged before ORG within the framework of an abstract ex post facto control . This court found the relevant provisions unconstitutional in decision no . CARDINAL . ( X.CARDINAL.)AB on DATE .","According to ORG , revenues earned solely on the basis of relevant statutory provisions ( that is , the overwhelming majority of the revenues concerned by the disputed legislation ) could not be regarded as being against good morals , and therefore not even the constitutional amendment justified a retroactive PERCENT tax . ORG pointed out that it reviewed the rate or amount of taxes only exceptionally ; however , it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated , i.e. was disproportionate and unjustified . Considering also the \u201c PERCENT rule \u201d ( GPE ) set out by ORG \u2013 according to which the overall tax load on assets must be limited to PERCENT of the yield on those assets \u2013 the court found that the PERCENT tax was excessive and punitive , yet it equally applied to severance pay earned in a fully untainted manner . The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established . ORG annulled the relevant provisions retroactively , that is , from DATE of the Act \u2019s entry into force . It relied on the above arguments , rather than on considerations about the protection of property , to which its scrutiny did not extend in the case .","The Constitutional Court \u2019s decision contained in particular the following considerations :","\u201c CARDINAL . ... [ The LAW ] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria , that is , to those ... received from any source specified in the LAW and exceeding the [ relevant ] amount .... The LAW does not apply only to budgetary institutions but to other , ORG - owned employers as well . The use of private resources depends on the ORG relatively free choices and autonomous decisions . However , decisions concerning public funds are different . [ The impugned legislation ] relates to public funds , and determines \u2013 at least indirectly \u2013 the use of public resources .","... Depending on the circumstances , [ the ] PERCENT tax may apply to payments which derive from the obligatory application of cogent legal provisions . ... In these cases , the special tax does not function as a regulatory instrument , given its inescapable factual basis . Nor does it aim to prevent abusive payments ; its purpose is rather to levy almost the entire income [ in question ] for the central budget . ...","The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified . ...","The material case concerns a substantial punitive tax which also applies to payments which are received , by virtue of law and within the limits of the proper exercise of rights , upon the termination of employment in the public sector . The LAW would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation . It would deprive the taxable persons of incomes originating in unconditional statutory entitlements . ...","To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax . The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law . However , imposing a tax or other similar duty is no constitutional means to achieve such purpose . Several constitutional instruments are at the disposal of the legislator to accomplish its objective . It may reduce or even abolish some ORG allowances falling under the scope of the LAW for the future , or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit . Nonetheless , the discretion of the legislator only prevails in the framework of international and NORP community law . \u201d","Upon a new bill introduced on DATE as the date of ORG decision , on DATE ORG re - enacted the PERCENT tax with certain modifications , according to which this tax applied from DATE ; however , for the majority of those affected ( excluding some senior officials ) it only applied to revenues above ORG CARDINAL . The new legislation was published in ORG of DATE and entered into force on DATE .","At the same time , ORG again amended the LAW , allowing retroactive taxation going back DATE . Furthermore , ORG powers were limited : the amended articles of the LAW contained a restriction on ORG \u2019s right to review legislation on budgetary and tax issues . This restriction DATE which has also been maintained in the new LAW in force from DATE allows for constitutional review only in respect of violations of the right to life and human dignity , the protection of personal data , freedom of thought , conscience and religion , and the rights related to NORP citizenship .","Upon a petition for an abstract ex post facto control , on CARDINAL DATE ORG annulled \u2013 notwithstanding its limited powers \u2013 the DATE retroactive application of PERCENT tax in decision no . CARDINAL , relying on the right to human dignity . However , the reasoning of the decision underlined that only the taxation of revenues gathered before the DATE tax year constituted a violation of the right to human dignity . ORG did not find unconstitutional as such the Act \u2019s presumption that the relevant revenues infringed good morals ; however , it ruled that this presumption should be susceptible to a legal challenge . In view of its limited jurisdiction , it did not consider the substantive aspects of the tax .","The Constitutional Court \u2019s decision contained in particular the following considerations :","\u201c CARDINAL . ... ORG has held that the retroactive effect of the LAW does not only apply to incomes earned contra ORG mores , but also to incomes originating in unconditional statutory entitlements . Payments of statutory amounts [ which have not been abolished ] can not be regarded as being contra DATE mores .","As regards the prospective provisions of the LAW , ORG has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector , and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements . However , in this case the legislator interpreted the \u201c special rate \u201d as an entire withdrawal of the income , by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden .","In pursuit of decision [ no . ORG ( X.CARDINAL.)AB ] , ORG amended the rules on ORG competence as well as the provision of LAW determining the distribution of public burden , and re - enacted the special tax . ...","... [ The new legislation ] contains no reference to the notion \u201c contra ORG mores \u201d , and allows for retroactive law - making with regard to DATE in arrears as well as for [ any ] imposition falling short of [ the total ] deprivation of income . ...","CARDINAL.CARDINAL.CARDINAL . ... The legal relations falling under the scope of the special tax are typically regulated by the so - called \u201c legal status \u201d Acts [ i.e. the Acts concerning the legal status of civil servants ] . [ In this context , the ] salary is specified by the so - called \u201c pay scale \u201d , which is independent from the parties and obligatory for them .","[ Moreover , ] the personal scope of the special tax also includes employers and employees , mainly those who belong under LAW , who can significantly influence the amount of the allowance received upon the termination of employment . ...","In this respect , the special tax is a tax whose purpose is not to generate [ ORG ] revenue . It is , in this connection , a regulatory instrument . ... Certain taxes may serve not only the purpose of increasing ORG revenue , but also function as regulatory instruments . Secondarily , but not insignificantly , [ this ] taxation can be also seen as part of the ORG \u2019s economic policy . In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion . ...","... The special tax is not a general income tax applicable to all types of income , but rather a particular tax levied on non - repetitive , non - regular payments which relate to certain factual circumstances ( i.e. the termination of a legal relation ) and which exceed a certain limit . ...","Such a tax with ex nunc effect can not be considered to violate the right to protection of human dignity or to constitute an improper interference by the ORG with individual autonomy . Taking into account its base , the incomes not belonging in that base and their amounts , the special tax can not be considered as completely dispossessing the tax subjects . ...","The individual \u2019s acquisition of the income subject to the special tax is restricted by a public - law limitation originating in that tax ...","TIME . ... In case of misuse of public resources , the limitation on payments might even have retroactive effect , [ under ] section CARDINAL\/I ( CARDINAL ) of the LAW . ORG has already emphasised in its decision [ no . TIME ( X.CARDINAL.)AB ] that a retroactive special tax may be imposed on unfairly high payments , on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated DATE ; the LAW aiming at preventing abuses and endorsing the society \u2019s sense of justice is not unconstitutional in itself , but must remain within the framework of LAW .","However , to impose tax on incomes [ lawfully ] acquired during DATE ... can not be considered as the implementation of the new paragraph ( CARDINAL ) of section CARDINAL of the LAW , but rather interference by a public authority with individual autonomy going to such lengths that can not have constitutional justification , and therefore violates the ORG human dignity . ...","The special tax does not provide for a fair and just assessment of individual circumstances ; its retroactive rules apply to everyone [ with CARDINAL exceptions mentioned above ] without differentiation . Nor does it take into account objective circumstances concerning a wide range of taxpayers , such as the economic crisis or emergency situations , which may disadvantageously influence the ORG circumstances . ... \u201d","On DATE ORG again re - enacted the retroactive application of the PERCENT tax . The amendment to Act no . ORG of DATE was published in ORG on DATE and entered into force on DATE . It provided that only relevant revenues earned after DATE should be subject to the tax . The amended legislation did not contain any remedy available to those affected .","The LAW , as in force as of DATE , provides ( in sections CARDINAL - CARDINAL\/B ) that the special tax rules are applicable to incomes received on DATE or after . Incomes shall be subject to a PERCENT special tax where the private individual has worked at an economic operator or an organisation operating from public money , the payment is effected on account of the termination of the private individual \u2019s work relationship , and the amount of the income exceeds ORG CARDINAL ( in certain cases CARDINAL ) CARDINAL . Incomes received DATE and DATE were declared by private individuals by means of self - assessment , in tax returns submitted by CARDINAL DATE or CARDINAL DATE ( depending on the taxpayer group ) . The tax was payable by the same dates .","Members of ORG , vice mayors and Members of ORG declared their income earned in DATE and subject to the special tax in a different manner , in a separate tax return submitted by DATE . They paid the special tax by DATE . Persons subjected to the payment of special tax declared their taxable incomes earned DATE and CARDINAL DATE by way of tax returns submitted by CARDINAL DATE or DATE ( depending on the taxpayer group ) , and paid the tax by the same dates . In all other cases , the special tax is deducted by the payment issuer as withholding tax , and the deduction is indicated in the private individual \u2019s tax return for the given revenue year .","Any charges paid by or deducted from the private individual including , in particular , personal income tax or individual contributions shall be regarded as tax advances paid on the special tax .","The Charter of Fundamental Rights of ORG provides as follows :","\u201c CARDINAL . The ORG recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity , illness , industrial accidents , dependency or old age , and in the case of loss of employment , in accordance with the rules laid down by Community law and national laws and practices . \u201d","ORG held in Case C-CARDINAL\/CARDINAL PERSON , [ DATE ] ORG I-CARDINAL as follows :","\u201c CARDINAL . The aim pursued by the severance allowance of protecting workers with DATE of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article CARDINAL ) of Directive ORG . \u201d","ORG of DATE on remuneration policies in the financial services sector ( CARDINAL ) provides as follows :","\u201c CARDINAL . Excessive risk - taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member GPE and globally ....","Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective . Therefore , there is a need to establish principles on sound remuneration policies . \u201d","In the case PERSON , PERSON des services fiscaux d\u2019Eure - et - Loir concerning the compatibility with ORG primary law of a national provision on the procedure for calculating a wealth tax , Advocate General PERSON reiterated that the principle that rules governing tax law and the exercise of fiscal power must not have confiscatory effects is a \u201c well - known and widely - recognised idea \u201d ( Case ORG , PERSON , PERSON ORG services fiscaux d\u2019Eure - et - Loir DATE , ORG , CARDINAL , ORG Villal\u00f3n ) .","In a judgment of CARDINAL DATE , ORG held that , according to LAW , the use of property served the purpose of private gain and the public good . In that sense , property tax , combined with other taxes , might take PERCENT of the income from property ( GPE ) . The overall tax burden should moreover not run counter to the principle of equality demanding the division of burden depending on the contributing capacity ( BVerfG , CARDINAL BvL CARDINAL , CARDINAL.CARDINAL.CARDINAL ) .","In its subsequent decision of DATE ( BVerfG , QUANTITY , CARDINAL ) , ORG found that even though tax load fell within the ambit of LAW , that is , the protection of property , the overall burden through business and personal income tax , in the particular circumstances , did not infringe the complainant \u2019s right to property . In the instant case the overall tax burden in business and personal income tax combined amounted to PERCENT . ORG noted in this regard that it was permissible to charge high income with higher tax burden , as long as the taxable person , after deduction of the relevant tax , disposed of a remaining income representing his private performance .","NORP In decision no . CARDINAL - CARDINAL DC ( DATE ; Act pertaining to work , employment and purchasing power ) , the ORG constitutionnel held as follows :","\u201c CARDINALo The requirement deriving from LAW of DATE would not be complied with if taxation were to be of a confiscatory nature or subjected a certain category of taxpayers to an excessive burden in comparison with their ability to pay taxes . The principle of the capping of the proportion of a tax household \u2019s income allocated to paying direct taxes , far from infringing the principle of equality before public burden sharing , is intended to avoid a patent infringement of this same principle ; \u201d","ORG held that a taxation scheme that is confiscatory in its effects and not limited in time would infringe the essence of the right to property ( Decisions of ORG , ORG CARDINAL Ia CARDINAL , CARDINAL ; BGE CARDINAL II CARDINAL , CARDINAL ) . To date , ORG has not found that any taxation scheme was confiscatory .","Decision no . BGE CARDINAL II CARDINAL , CARDINAL contains the following passage :","\u201c CARDINAL bb ) ... In taxation matters , however , it [ the guarantee of property , as set out in LAW ] does not go beyond the prohibition of confiscatory taxation . Therefore , a tax to be levied may not damage the very essence of private property . It is the task of the legislative branch to preserve the substance of the taxpayer \u2019s assets and to allow him the chance to create new ones . In fact , a tax rate expressed in percentages is not the only decisive criterion in order to determine whether a taxation scheme has a confiscatory effect . It is necessary to examine the burden of the imposition for a rather long period and by not taking into account extraordinary circumstances . In order to accomplish this , all specific facts must be taken into consideration : the length and the gravity of the interference as well as the accumulation with other taxes or charges and the possibility to shift the tax to another person ... \u201d .","Decision of ORG no . CARDINAL contains the following passage :","\u201c CARDINAL ORG has held that it is not compatible with LAW if an annuity for life , inherited by bequest , of initially CHF DATE is \u2013 regardless of the ability to pay other taxes of the person in receipt of the pension \u2013taxed at PERCENT in total , in terms of inheritance and income taxes as well as other expenses , which ( taking into account of the tax sum due for MONEY CARDINAL ) were necessary for their financing ( Decision P.CARDINAL\/CARDINAL , published in : ORG CARDINAL p. CARDINAL et seq . ) . In that specific case the specific circumstances were relevant because the heir could not secure her own existence after paying the taxes for the annuity for life . \u201d","In GPE v. PERSON , CARDINAL GPE CARDINAL , CARDINAL ( DATE ) ORG dealt with the following problem : According to the provisions of LAW , after DATE no salary or compensation was to be paid to certain individuals , who were then government employees , out of any moneys then or thereafter appropriated , except for services as jurors or members of armed forces unless they were prior to that date again appointed to jobs by the President with advice and consent of the ORG . In the background of the statute challenged lay the ORG of Representatives\u2019 feeling that in DATE many \u2018 subversives\u2019 were occupying influential positions in the Government and elsewhere and that their influence must not remained unchallenged . In DATE the respondents , PERSON , PERSON and PERSON , were and had been for DATE working for the Government . The Government agencies which had lawfully employed them were fully satisfied with the quality of their work and wished to keep them employed in their jobs . ORG held that the purpose of the provision challenged was not merely to cut off the ORG compensation through regular disbursing channels , but permanently to bar them from government service and it was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency . ORG reiterated that the LAW barred such legislative acts by providing that \u201c LAW or ex post facto PERSON shall be passed \u201d . It found that the relevant provision was designed to apply to particular individuals and operated as a legislative decree of perpetual exclusion from a chosen vocation . It ruled that this permanent proscription from any opportunity to serve the Government was punishment of those individuals without a judicial trial and thus carried the usual characteristics of bills of attainder . ORG found that \u201c legislative acts , no matter what their form , that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial , are \u2018 bills of attainder\u2019 prohibited by LAW .","The subject matter of the case PERSON GPE , CARDINAL GPE DATE ) was as follows : The petitioners ( PERSON and PERSON . ) furnished various materials to PERSON for use in construction of boats . Upon PERSON \u2019s default , the Government exercised its option as to CARDINAL of the boat hulls still under construction and removed these properties to out - of - state naval shipyards for use in the completion of the boats . When the transfer occurred , the petitioners had not been paid for their materials and they were not paid afterwards , either . The petitioners therefore contended that they had liens . ORG held \u201c that there was a taking of these liens for which just compensation is due under LAW . It is true that not every destruction or injury to property by governmental action has been held to be a \u2018 taking\u2019 in the constitutional sense . This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable \u2018 LOC and what destructions are \u2018 consequential\u2019 and therefore not compensable ... LAW guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which , in all fairness and justice , should be borne by the public as a whole . A fair interpretation of this constitutional protection entitles these lienholders to just compensation here . \u201d","In ORG v. ORG , CARDINAL GPE CARDINAL ( DATE ) ORG held that ORG DATE amounted to an unconstitutional regulatory taking of property . It held that the economic impact of the LAW was substantial as to the petitioner , in that it required ORG to contribute large sums of money to a pension fund for employees employed in DATE solely because those payments could not be allocated to other coal companies that were currently operating in the coal industry . The retroactive effect of the LAW imposed a substantial economic injury on ORG that could not have been anticipated . Moreover , the challenged statute interfered with ORG Enterprises\u2019 expectations in that in DATE the company sold off its remaining holdings in coal operations and completely quitted this industry . The statute \u2019s requirement for ORG to undertake the obligation at issue clearly interfered with the expectations of ORG when it sold off its interest in coal operations . Lastly , the nature of the government action was unusual because it retroactively applied a substantial economic burden on ORG . For ORG , the character of the government action was substantial and invasive . The balance of the factors resulted in the finding of an unconstitutional taking requiring just compensation ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59592","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2001,"docname":"CASE OF I. BILGIN v. TURKEY","importance":1,"conclusion":"Violation of Art. 2;Violation of Art. 5;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Elisabeth Palm","text":["The circumstances in which the applicant \u2019s brother disappeared are disputed . In accordance with former LAW ( a ) of ORG conducted an investigation with the assistance of the parties and obtained documentary evidence and oral depositions .","Delegates from the Commission heard witnesses on DATE in GPE and from DATE in GPE . They also visited the offices of the anti - terrorist branch at ORG on DATE . Evidence was taken from the following witnesses : the applicant , CARDINAL people who had been in custody at the material time at ORG and who alleged that they had met PERSON there and had witnessed the ill - treatment to which he had been subjected , CARDINAL public prosecutors who had investigated the case , a deputy director at ORG and a police officer from the anti - terrorist branch at ORG .","At TIME on DATE the applicant \u2019s brother , PERSON , was arrested at a taxi rank in NORP ( GPE ) by plainclothes police officers . His family was not informed .","The applicant received CARDINAL anonymous telephone calls from someone who confirmed that his brother was being held at ORG ) with CARDINAL other prisoners . He was told that his brother \u2019s condition was serious and that he was being administered serum . During the last conversation , which took place on DATE , the caller said that the applicant \u2019s brother had been moved elsewhere .","On DATE PERSON lawyer , PERSON , contacted ORG of ORG . She and CARDINAL other lawyers also made a written statement to the press .","By an undated letter the applicant requested information from ORG at ORG about his brother \u2019s health , indicating that his brother had been arrested on DATE . On DATE a similar request was made to ORG by PERSON , who put the date of the arrest at DATE .","NORP In his letters in reply dated DATE ORG said that no one by the name of PERSON had been interviewed and that no warrant had been issued for his arrest .","On DATE the applicant made a written statement to the press . DATE , his representatives contacted the GPE branch of ORG about his brother \u2019s case . On DATE the association issued an appeal to the provincial governor of GPE for PERSON to be brought before the public prosecutor , while the applicant managed to obtain written statements signed by CARDINAL prisoners who had also been held at ORG DATE , in which they confirmed that PERSON had been held there between those dates and subjected to ill - treatment .","On DATE PERSON wrote to ORG at ORG to enquire what had become of PERSON . She explained that although several witnesses affirmed that they had seen him in police custody , the police denied that he had been detained .","On DATE the applicant lodged a complaint with the GPE public prosecutor against the officers who had been on duty while his brother was in custody , namely police officers from the anti - terrorist branch at ORG . Inter alia , he gave the names of witnesses who had testified that PERSON had been held in the same building as them .","Furthermore , at a hearing on DATE in criminal proceedings before ORG , one of the defendants , whose name was PERSON , testified to having met PERSON at ORG . Another defendant , Mr ORG , said in evidence before the court that police officers had threatened him , telling him that unless he made a confession he would meet the same fate as PERSON .","When making a bail application to ORG on DATE , a lawyer , PERSON , said that while he and PERSON were in custody together they had spoken and PERSON had told him that he had been held for DATE and that the police intended to arrange for his disappearance . PERSON had also asked PERSON to inform his family .","The DATE \u2019s position was that while it was true that PERSON was a member of ORG of GPE ( TDKP ) , he was not wanted by the police and had not been arrested by the security forces . As the GPE public prosecutor had stated in a letter of DATE to ORG , the custody records showed that PERSON had not been arrested or detained .","In a statement made on CARDINAL or DATE , a lawyer , PERSON , said that he had spoken with PERSON , who had informed him that he had been in custody for DATE and that his name had not been entered on the custody record .","PERSON stated that prisoners in custody in the offices of the anti - terrorist branch of ORG from DATE had been systematically subjected to ill - treatment and that he had seen PERSON during that period through an aperture in the cell - door window .","ORG stated that he had been held at ORG from DATE , during which period he and his fellow inmates had been constantly subjected to ill - treatment . On DATE he had met PERSON , whom he already knew , in the toilets .","PERSON stated that he had been held at ORG from DATE . On DATE he had managed to make out through an aperture in the cell - door window a group of police officers dragging a prisoner along the ground to the bathroom . TIME he had seen a person carrying a doctor \u2019s bag leave the bathroom . He had subsequently learnt that the prisoner \u2019s name was PERSON .","ORG stated that he had been held at ORG from DATE to DATE and had seen PERSON on several occasions being led away , unclothed , by police officers .","ORG stated that he had been held at ORG from DATE . He had heard the cries of prisoners being subjected to ill - treatment . Through the cell - door window he had seen a prisoner being dragged along the ground by police officers and had later heard his cries of distress and the police ORG questions such as : \u201c What is your name ? If you do not tell us your name , we will kill you . \u201d Later , he had seen the same prisoner being taken to the toilet and had heard him call out : \u201c My name is PERSON ! I am registered at ORG . The police want to kill me . Make sure that public opinion is informed about this ! \u201d","PERSON stated that he had been held from DATE , during which period police officers had subjected prisoners to ill - treatment . DATE , he had seen a prisoner in the toilets . The man was in poor health . He introduced himself as PERSON and told him that he had been held since DATE , that his name had not been entered on the custody record and that he feared he would be executed .","PERSON stated that she had been held from DATE . She recalled hearing someone call out : \u201c My name is PERSON ! I was taken into custody on DATE , but my name is not on the custody record . \u201d","PERSON stated that while being held in custody DATE she had heard someone call out : \u201c My name is PERSON ! I was taken into custody on DATE and they want to arrange for me to disappear . \u201d According to her , the prisoner she had seen through the cell - door window was PERSON . He had difficulty walking and his body bore marks of torture .","PERSON stated that he had been held from DATE in the offices of the anti - terrorist branch at ORG . During that period all the prisoners had been systematically subjected to torture . He had been in cell no . CARDINAL . The prisoner in cell no . CARDINAL was subjected to severe ill - treatment DATE . He was taken away naked for torture sessions and dragged back to his cell afterwards . He saw him through an aperture in the cell - door window . The CARDINAL people who took the prisoner away for interrogation were the same CARDINAL people who had interrogated him , so he would have no difficulty in recognising them . DATE , the prisoner from cell no . CARDINAL cried out from the toilets where he had been taken : \u201c My name is PERSON . They want to arrange for me to disappear ! My name is not on the custody record . \u201d He had been brought back to cell no . DATE .","The applicant alleged that his brother had been arrested on DATE and that eyewitnesses had seen him in custody . He requested information about his brother \u2019s fate . His brother \u2019s lawyer made a similar request alleging that PERSON had been taken into custody by police officers from the anti - terrorist branch of ORG on DATE .","In its petition ORG gave the names of the eyewitnesses who had seen PERSON at ORG .","NORP In a letter of CARDINAL DATE referring to the complaints lodged by the applicant \u2019s representatives , the GPE public prosecutor , PERSON , instructed the public prosecutor \u2019s office at GPE ( GPE ) to question the applicant about the matters raised . He also instructed ORG to start an investigation into the applicant \u2019s allegations .","On DATE ORG informed ORG that ORG had advised that PERSON had not been taken into custody , his name had not been entered on the custody record and he was not wanted by the police .","On DATE the deputy director at ORG , ORG , sent a letter to the GPE public prosecutor \u2019s office , the relevant parts of which read :","\u201c ... DATE and QUANTITY DATE the anti - terrorist branch carried out CARDINAL arrests . Of those arrested , CARDINAL were brought before the principal public prosecutor at ORG and the remaining CARDINAL released . In addition on CARDINAL and DATE ORG carried out CARDINAL ad hoc visits to ORG . They did not report any case of unlawful detention there ... In the interests of an effective investigation , persons remanded in custody , whether members of the same or of different organisations , never see each other unless a confrontation becomes necessary . Even for the purposes of answering a call of nature , remand prisoners are taken to the toilets individually and are accompanied by a warder . Furthermore , members of the same organisation are put in cells that are far apart from each other ... The sole aim of the persons whose names appear in the complaint and who claim to have seen the person known as PERSON is to mislead the judicial authorities , to discredit the police and to obstruct the operations being carried out against illegal organisations ... The NORP police are proud of their CARDINAL-year history . Certain people seek to destroy the democratic secular Republic ; they commit crimes , arguing that such unlawful acts are legitimate , and make allegations such as the present one to discredit the police and the State . \u201d","On DATE the GPE public prosecutor , PERSON , informed ORG that , while it was true that an investigation had been started into the affairs of members of the TDKP , PERSON name did not appear on the list of its members .","On DATE ORG , ORG , sent a letter to the GPE public prosecutor \u2019s office , which was in charge of the investigation . The relevant parts of the letter read :","\u201c ORG ( CPT ) interviewed prisoners in FAC who had been transferred from the anti - terrorist branch at ORG and who said that they had seen PERSON in DATE in the building where remand prisoners are detained . When we spoke to them , they said that they had seen PERSON DATE through an aperture in their cell - door windows when he was being taken to the toilets , to the torture room or to be photographed . The investigation reveals that the section of the premises where remand prisoners are held contains individual cells with windows in the cell door that enable police officers to communicate with the prisoners or to pass them their food and which can only be opened from the outside by the warders . The cells are aired by a ventilator attached to the ceiling and it is impossible for prisoners to see what is happening outside . Prisoners are interrogated on the floor above in an interview room that complies with NORP standards . The cells are not numbered but a small sheet of paper bearing the prisoner \u2019s name is attached to the cell door . Persons arrested are photographed and fingerprinted by the technical services at ORG . DATE and DATE , CARDINAL people were taken into custody at the anti - terrorist branch of ORG ; of these , CARDINAL were released by the police , CARDINAL brought before a judge and CARDINAL transferred to other branches at ORG . Thus , with the exception of PERSON , there had been no complaints of any disappearances of prisoners being held in custody . According to the inquiry conducted by the ORG on CARDINAL and DATE , in an unannounced visit to ORG , there are no reports of unlawful detention on the LOC . Considering that the purported witnesses did not know either PERSON or his family and that the ORG state that his name was not on the custody record , it can safely be deduced that the allegations of the prisoners regarding the disappearance of the person known as PERSON while in custody at ORG were aimed at misleading public opinion and harming the police as they attempted to mount operations against the illegal organisations . \u201d","On DATE the public prosecutor PERSON took witness statements from ORG , PERSON , PERSON , PERSON and ORG , who were all accused of being members of an illegal extreme left - wing organisation , the PERSON . The following depositions were taken .","( a ) Cavit Nacitarhan : \u201c I was arrested on DATE and remained in custody for DATE . I did not know PERSON . However , after my second day in custody I saw him DATE . He would cry out : \u2018 My name is PERSON , I have been in custody since DATE and my name has not been entered on the records ; if anyone is released , please inform the press , lawyers and human rights [ associations ] about my case.\u2019 I do not know why he was arrested but I saw him over a period of DATE . He was dressed only in his underpants . He did not have the strength to stand unaided and had to be supported by CARDINAL people . After my release , I saw his photograph in newspaper articles about his disappearance and that is how I recognised him . \u201d","( b ) PERSON : \u201c I was taken into custody on DATE . I did not know PERSON , but I saw him CARDINAL times at ORG . He was dressed only in his underpants . I was in cell no . CARDINAL and he was in cell no . CARDINAL . When he was taken to the toilets , he would cry out : \u2018 My name is PERSON . They want to arrange for me to disappear . My name has not been entered on the custody records.\u2019 Later , he was taken from his cell . That is all I witnessed . [ I ] certify that the signature on the written statement made on CARDINAL or DATE is mine . \u201d","( c ) PERSON : \u201c I certify that I signed the written statement dated DATE . When I was in custody at the offices of the anti - terrorist branch at ORG DATE , I saw PERSON on several occasions . At CARDINAL stage , I noticed that he was being dragged by his arm to the toilets in his underpants . He was often taken for interrogation and was severely tortured . He was in cell no . CARDINAL . On DATE I saw him in the toilets . He said to me in a weak voice : \u2018 My name is PERSON , I was arrested on DATE at Dikmen . My name has still not been entered on the records . They are probably going to arrange for me to disappear . If you get out of here , contact the public prosecutor \u2019s office and inform the press.\u2019 The warder then appeared and reprimanded him for having spoken to me , before taking him away . Later I recognised his photograph in the newspapers . \u201d","( d ) PERSON : \u201c I was taken into custody on DATE and was put in cell no . CARDINAL . PERSON was in no . CARDINAL or DATE . I did not know him . We were severely tortured . The remand prisoner in no . CARDINAL stopped me and , as I was known as \u2018 the lawyer\u2019 , asked me if I really was a lawyer . He gave me his name and continued : \u2018 I have been here for DATE . My name has not been entered on the records . They probably want to arrange for me to disappear . I worked at a printer \u2019s . If you are brought before a judge , tell the lawyers that I am here.\u2019 He too was tortured . I heard the sounds of torture and groans . I certify that the signature on the written statement is mine and confirm the content . I saw his photograph in the newspapers later . However , he seemed far more exhausted and tired [ in custody ] . \u201d","( e ) M\u00fcjdat Y\u0131lmaz : \u201c I confirm the content of the written statement of DATE . I do not know PERSON , but I saw him on CARDINAL or three occasions . I was in cell no . CARDINAL . I saw him being taken to the toilets by his torturers and heard him call out : \u2018 My name is PERSON . They want to arrange for me to disappear.\u2019 I saw him like that CARDINAL times . I am able to recognise these men [ the police officers ] because they also undressed my wife before my eyes . CARDINAL of them was smaller than me , QUANTITY tall with a receding hairline and was called \u2018 LOC by the others . He was one of the men who took PERSON away . I would recognise him without any hesitation . I made a statement to the public prosecutor who came to the prison . \u201d","Referring to the statements of these witnesses , the public prosecutor PERSON enquired of ORG whether an investigation had been started following the allegations that PERSON had been tortured and had disappeared after being taken into custody in the offices of the anti - terrorist branch of ORG .","On the instructions of the public prosecutor PERSON , CARDINAL police officers from ORG at ORG ( GPE ) took a statement from the applicant on DATE . The applicant stated that a cousin had informed him that his brother had been arrested in GPE on DATE . He and his brothers had gone to the offices of ORG , had consulted lawyers and had learnt that certain prisoners had claimed that PERSON had been in custody in the same building as them but had not been brought before a judge for an order to be made for his detention pending trial .","On DATE the applicant had given a statement at ORG ( GPE ) police station . He said that he had lodged a complaint with the GPE public prosecutor \u2019s office and had given the names of witnesses who said that they had seen PERSON in the offices of the anti - terrorist branch at ORG . He had repeated his allegations and asked for news of his brother .","By a letter of DATE in which he referred to the applicant \u2019s complaint and statement , the public prosecutor PERSON requested the Pertek ( GPE ) public prosecutor \u2019s office for the locality where the register of births of the PERSON family was held to conduct an investigation into the alleged disappearance of PERSON , and in so doing to have regard to the possibility that he may have taken part in ORG ( Workers\u2019 ORG ) activities . He added that ORG considered the allegations of the applicant and his lawyers regarding the alleged disappearance at the hands of the police to be an attempt to damage the police \u2019s reputation .","By letters of DATE and DATE the Pertek public prosecutor instructed the district gendarmerie to make enquiries of the people with whom PERSON was in close contact in order to establish whether he had joined the ranks of the ORG .","On DATE the gendarmes took a statement from someone who lived in the village in which PERSON was born . He said that the PERSON family had left the village DATE and that he did not know whether PERSON was a member of the ORG .","On DATE the public prosecutor PERSON instructed ORG to carry out a search for PERSON . The relevant part of his letter reads as follows .","\u201c An investigation has been carried out into allegations by PERSON that his brother , who was arrested on DATE at ORG ) , was taken into custody in the offices of the anti - terrorist branch of ORG , that he was seen by other prisoners but has given no signs of life since . Other enquiries have been made into the possibility that PERSON belongs to the ORG organisation or that attempts have been made to damage the police \u2019s reputation , and enquiries have been made of the authorities of the village where he was born and in the locality where he resides . However , it is not been possible to reach any conclusion in this case .","\u201c I wish to request your department to start an investigation into every eventuality , namely whether PERSON disappeared while in police custody , or whether he has joined the ranks of the ORG or has been hiding in secret in GPE and has in fact been used by people close to him with a view to damaging the reputation of the police . I should be grateful if you would then inform me of the result of your findings . \u201d","The delegation visited the LOC in which prisoners were held at the offices of the anti - terrorist branch of ORG . It was informed that alterations had been made to the layout of the cells on the ground floor at DATE . There were now CARDINAL cells ( CARDINAL cells having been converted into a single cell ) running along CARDINAL side of a long , narrow corridor . The delegation found an empty room at the end of that corridor , with a small corridor leading off to the adjoining toilets . The ORG names and numbers were written on cards inserted into slots above the doors with the reverse side facing outwards . The police officer in charge of the LOC said : \u201c Prisoners have no possibility of seeing or speaking to each other and their movements in the LOC are made in accordance with official regulations . Dishes are passed directly through the door with the prisoners being required to stand back . The police officer in charge of the LOC where prisoners are held has a list of the people in custody and of the cell numbers , and prisoners do not change cells while in custody . \u201d The delegation carried out CARDINAL experiments on the LOC .","( i ) CARDINAL delegates were shut in CARDINAL adjoining cells . CARDINAL said his name out loud . He was heard by the other and by the group in the corridor .","( ii ) A delegate was shut in a cell and a lawyer from the delegation in a cell CARDINAL doors away . In order to establish what they could hear , they were asked to speak in their cells . The lawyer heard the delegate \u2019s voice but said that the noise from the ventilation system prevented him from making out what he said .","The delegation then visited the interrogation room on the first floor .","The name PERSON does not appear on the custody records at ORG . The records show that several people were arrested and taken into custody at the ORG DATE , including PERSON and PERSON on DATE , PERSON , ORG and PERSON on DATE , PERSON , ORG , PERSON and PERSON on DATE , PERSON on DATE , and ORG on DATE .","On DATE in GPE and CARDINAL DATE in GPE , ORG delegates took the following depositions .","\u0130rfan PERSON is the applicant and PERSON brother . He said that his brother had been arrested on DATE at ORG ) and that he had been informed of the arrest DATE .","His brother had been arrested as part of an operation that had been carried out by the security forces in different localities on DATE against members of ORG .","PERSON had previously been in custody in DATE and had spent DATE in prison . He had been a member of the revolutionary movement since DATE and had been on the police \u2019s wanted list . In DATE he had been arrested at Gaziantep ( a town in south - east GPE ) in possession of false identity papers . He had been held for DATE and severely tortured . He had told his family that the police had made threats on releasing him , warning him : \u201c This time , you are safe , you have escaped with your life , but the next time we catch you , you will not leave here alive . \u201d","The applicant said that following his brother \u2019s disappearance he had received CARDINAL or CARDINAL telephone calls from CARDINAL Co\u015fkun , who had informed him that his brother was being held at ORG ) and subjected to torture . He was in very poor shape and on a drip .","NORP The applicant said that he had contacted people who claimed to have been held on the same LOC as PERSON . After speaking to them , he had lodged applications with ORG , ORG , the Secretary of ORG and ORG . However , despite the evidence of several prisoners , those authorities had denied that his brother had ever been in custody .","The applicant said that he had lodged a complaint with the public prosecutor \u2019s office . However , he was unaware whether an investigation had been started . He had been required to attend the offices of the anti - terrorist branch at ORG either once or twice and had repeated his allegations .","The witness is a lawyer who currently lives in GPE , where he has been granted political asylum . He said that he was arrested by police officers from ORG in his office on DATE and held by the anti - terrorist branch for DATE . He was detained in a small cell and had changed cells on CARDINAL occasions .","He gave the following description of the LOC where prisoners were held . The cells were not numbered and ran the length of CARDINAL side of a corridor . On the other side of the corridor was a room used for torture , toilets , a bathroom that was also used for torture , the warders\u2019 office and CARDINAL other cells that were larger and better furnished than the others . The doors were equipped with small windows , CARDINAL across , through which the prisoners could be observed . Both the windows and the cell doors were opened from time to time by the warders . By pressing his head firmly against the aperture in the cell - door window , he was able to see what was going on outside and had thus seen the other prisoners when they were taken away to be tortured .","When first taken into custody he had been put in a cell between the toilets and the bathroom that doubled up as a torture chamber . The prisoner in the cell next door was a university lecturer . The witness said that he had heard groans coming from the cell next to the lecturer \u2019s . He explained that he was systematically tortured and that TIME , at the end of the torture session and after he had been taken back to his cell , the prisoner , who was groaning and was in very poor shape had said to him : \u201c I have been detained for DATE . My name is PERSON . You are the lawyer of a close relative of mine , PERSON , who is currently being held in FAC . My name has not been entered on the custody records . They are going to arrange for me to disappear . Could you inform my family and the lawyers that I have been detained ? \u201d On hearing this , the witness had tried to reassure the man , saying that he now had an eyewitness to his detention and that he could no longer be regarded as having disappeared . DATE , on returning to his cell after another torture session that had lasted TIME , he noticed that all the prisoners had changed cells . He had not see PERSON again .","The witness said that detention in police cells was not always entered on the custody record and that the police officers used that practice as a form of torture . He had heard them tell certain prisoners in custody : \u201c We have not entered your name on the custody record . We can do as we please with you . \u201d","He said that he did not know PERSON personally . PERSON lawyer , PERSON , had asked him while visiting the prison whether he had met PERSON at the police station and he had informed her of their conversation .","Cavit Nacitarhan said that he had been arrested on DATE by the police for being a member of an illegal organisation , the TDKP . He had been held in custody for DATE . For DATE he had been taken for interrogation twice daily at TIME During the interrogation sessions he had been systematically tortured . For the remainder of his time in custody he had been given medical attention to remove the marks left by the injuries on his body .","He described the events following his arrest as follows : he had firstly been taken to a place called PERSON , where the police officers had threatened to kill him unless he cooperated with them ; he had been interrogated there before being taken to ORG .","The witness gave the names of other people who had been in custody during the same period . He said that he had learnt their names following a confrontation that had been organised with them or after meeting some of them in the prison . He had heard PERSON name while in police custody .","He related how , in general , prisoners were taken to the toilets in groups of CARDINAL . However , that did not apply to certain prisoners , including himself and another prisoner . They were only allowed to leave their cells to go to the toilet when the doors of the other cells had been shut . Prisoners\u2019 names , apart from his own and that of another prisoner who he later discovered was PERSON , were written on small cards that were fastened to the cell doors . On seeing PERSON photographs in the press , he had immediately realised that it was the same person . One day , when all the cells were closed , he had attempted to see what was going on in the corridor by looking through a small aperture next to the cell - door window . Although his angle of view had been very restricted , he had been able to make out CARDINAL police officers leading a nearly naked prisoner whose eyes were blindfolded . The prisoner had been taken back to his cell TIME . He had seen him several times being dragged across the floor to or from his cell .","DATE he had heard a prisoner saying : \u201c My name is PERSON . My name has not been entered on the custody record . Please inform my family and public opinion about my case . \u201d He had heard the same person cry out several times from the bathroom that had been converted into a torture chamber . The man had been asked repeatedly : \u201c What is your name ? Tell us your name . Do not shout . \u201d","On DATE a confrontation had been organised with other prisoners who had been arrested as part of the same operation . PERSON was not among them . On DATE the witness had again seen PERSON being led away by police officers . He was in very poor shape . That same evening there seemed to be a panic and the doors had remained closed throughout the evening . Police officers were running in all directions . Since DATE , he had not seen PERSON again . In his opinion , PERSON was executed on DATE .","The witness said that the applicant had visited him in prison in DATE and that was how he had informed him of the date he was taken into custody . They had had a very short discussion about PERSON . He said that he had sent a written statement through his representatives certifying that PERSON had been present at ORG .","According to the witness , although he had been taken into custody on DATE , his detention had not been recorded until DATE , after his admission to hospital . He had informed the public prosecutor of that fact but the public prosecutor had merely accepted the police ORG account .","PERSON said that he had been arrested on DATE with CARDINAL other people and had remained in custody in the offices of the anti - terrorist branch of ORG for DATE . When first detained , CARDINAL prisoners were being held ; DATE , their number had risen to CARDINAL .","The first prisoner he noticed was Cavit Nacitarhan , who was the nephew of a member of ORG and occupied the cell next to his . The police officers had began the torture sessions with ORG , whose body was swollen and covered in bruises and who had difficulty walking . The witness had a clear view of prisoners being taken to the torture chamber , which was diagonally opposite his cell .","He related how , after Cavit Nacitarhan was interrogated , it was the turn of another prisoner to suffer the same treatment . The question he heard most often was : \u201c What is your name ? \u201d The prisoner \u2019s cries had turned into grunts and groans . The last time he had seen him brought by a group of police officers for a torture session , either on DATE , was identical to the others : the same groans , the same question , the same insults , the same cries . The witness went on : \u201c Suddenly , there was total silence . The police officers came out of the torture chamber and a man carrying a black bag went inside . He looked like a doctor , but was probably from the police . They brought the prisoner out , dragging him behind them . \u201d","The witness said that the warders opened the windows in their cell doors from time to time to give them bread or water . However , the aperture in the windows to the cells of ORG and the prisoner referred to above were kept shut .","He said that he did not know PERSON before his arrest and had identified him from photographs in the press .","NORP In practice , detention at the anti - terrorist branch was not entered on the records on the day the prisoner was taken into custody . The practice depended on how the interrogation proceeded .","The witness repeated that PERSON had been on the same premises as him for DATE and had been tortured throughout that period .","He stated that he had signed a statement on DATE as testimony for the benefit of public opinion and had made a statement to the public prosecutor .","Talat Abay said that he had been arrested on DATE as a member of an illegal organisation , ORG , and had been held in custody for DATE at ORG . On DATE a number of people had been taken into custody and all the cells were occupied . While in custody , prisoners were systematically subjected to torture .","He had known PERSON before DATE , as he had stayed at the witness \u2019s home for DATE in DATE and DATE .","He had seen PERSON on TIME CARDINAL DATE , when he was taken to the toilet . They had made eye contact but had not spoken .","The witness said that he had made a written statement confirming that PERSON had been held in custody . In addition , he added that at his trial before ORG he had testified to meeting PERSON at ORG .","The witness , who was a student at the material time , had been held in custody from CARDINAL to DATE , for being a member of the ORG .","DATE . As he had said in his written statement , he and the other prisoners had been systematically taken for torture sessions . The torture chamber was near his cell . For TIME another prisoner had been taken to the torture chamber after him . He was always asked the same question , \u201c What is your name ? \u201d , and he had heard cries and groans . He had seen him once , through an aperture in the cell - door window , for TIME , from the front and distinctly , being supported by CARDINAL police officers . The prisoner could not walk without assistance and dragged his feet . The witness had subsequently learnt , after being transferred to prison , that the prisoner \u2019s name was PERSON .","The witness said that he had no difficulty in being certain that the prisoner who had groaned and cried out in agony was PERSON , since he had seen almost all of the other prisoners in prison .","The police officers would accompany them to the toilet and when they washed their hands and faces in the wash basins , they had an opportunity of meeting other prisoners .","PERSON accompanied the delegates when they visited the offices of the anti - terrorist branch of ORG .","At the material time he was a teacher . He had been arrested by the police on DATE in the village where he taught for aiding and abetting an illegal organisation . He had been detained at ORG on DATE .","The witness reported his findings concerning the LOC visited by the delegates of ORG . The premises had been altered . The cells had been ventilated through the open cell - door windows , there being no ventilation through the ceiling . The room where the custody records were made up had been at what was now the entrance . The cells had been smaller and closer together and there had been additional cells along another corridor . The witness had been held in one of those cells and had remained there for DATE . On DATE of his detention , he had been able to make out , through the open window in his cell door , CARDINAL other prisoners in cells diagonally opposite his own , QUANTITY away . He did not know PERSON before his arrest . He had seen his photograph in the offices of ORG . He had made a statement that he had seen him in custody at ORG and had agreed to give evidence to that effect .","After making his statement he had been intimidated , in the presence of his wife , by a police officer who had visited him at the school where he taught . The police officer had made threats such as : \u201c You eat from the ORG \u2019s plate . I will not allow you to dirty that plate . You will suffer the same fate as PERSON . \u201d He added that , despite the threats , he had deposed before ORG in DATE .","M\u00fcjdat Y\u0131lmaz said that he had been accused of being a member of the PERSON . He had been arrested on DATE and had remained in custody until DATE .","DATE . As his CARDINAL closest relatives had also been detained on the same LOC , he had endeavoured to keep watch through an aperture in the cell - door window to see what was happening in the corridor . On DATE he had seen a prisoner in the toilets , with his back to the wall . The prisoner was exhausted and did not have the strength to remain upright . He was being insulted and pulled backwards by his hair . The witness had seen the same prisoner on another occasion , in similar circumstances , being dragged along by police officers . On the third occasion he saw him , the prisoner was in very poor shape and incapable of standing up . He had cried out : \u201c My name is PERSON . I am registered at GPE . The police want to kill me . When you get out of here , inform public opinion about my case . \u201d The officers in charge had prevented him from saying any more by taking hold of him by his hair and hitting him . After being transferred to prison , the witness had learnt that the prisoner concerned was called PERSON .","The witness said that it was possible to communicate from one cell to another by raising one \u2019s voice and that he had thus been able to converse from time to time with his niece .","In addition to his written statement he had made a deposition in prison in which he had stated that he could identify the police officers who had dragged PERSON back to his cell . The same officers had undressed his wife before his eyes and he was certain he would recognise them .","PERSON said that he had been arrested for aiding and abetting the PERSON and held in custody from CARDINAL to DATE .","He had seen PERSON in person CARDINAL times and for DATE had heard his groans when he was taken away for interrogation .","CARDINAL prisoners were treated differently from the others . CARDINAL was Cavit Nacitarhan . They were taken separately to the toilet , being dragged there by their arms by QUANTITY police officers . On DATE in custody , while the witness was washing his hands in the washroom , CARDINAL of the CARDINAL prisoners had been brought there . He looked exhausted and had whispered : \u201c My name is PERSON . I was taken into custody on DATE and my name has still not been entered on the record . I think they want to kill me or to arrange for me to disappear . Inform public opinion about my case . \u201d The warder had intervened and dragged him back to his cell . He had seen him a second time , lying on his bed in his cell opposite the toilets in his underpants . DATE , he had seen him through the window in his cell door . He was being dragged away .","The witness affirmed that he had heard PERSON cry out from his cell , giving his surname , first name and the name of the province from which he came .","Emine \u00d6\u011f\u00fcn said that she had been arrested with her husband on CARDINAL DATE for being a member of an illegal organisation and had remained in custody until DATE .","DATE before her release , when asking for water through the window in her cell door , she had seen a prisoner in a bad condition who had said to her : \u201c My name is PERSON . I was taken into custody on CARDINAL DATE . \u201d","PERSON said that she had been arrested on DATE at GPE . She had been detained at ORG from DATE .","She affirmed that she had heard someone cry out \u201c My name is PERSON \u201d , and had caught a glimpse , through her cell window , of a dark man , bald and with a moustache , whom she had later identified as PERSON .","The witness said that the public prosecutor had taken a statement from her in prison and had asked her to describe the circumstances in which she had seen PERSON .","PERSON said that he had been arrested on DATE for being a member of an illegal organisation and had remained in custody until DATE .","He had been systematically subjected to torture while in detention . He had been able to see through an aperture in the cell - door window that the prisoner in cell no . CARDINAL was subjected to more intensive torture then he . He had seen him being dragged along by QUANTITY police officers , CARDINAL of them supporting him by the arms . On DATE he had seen a person with a bag go into cell no . CARDINAL and had heard someone say : \u201c He is not taking any milk . He is not drinking any milk . \u201d On another occasion the witness had seen , again through the window in his cell door , the same prisoner being taken to the toilet . The prisoner had cried out : \u201c My name is PERSON . They want to arrange for me to disappear . \u201d","The witness explained that in principle prisoners were not allowed to communicate with each other . However , they would either speak in whispers while at the wash basins or attempt to make themselves heard between cells .","The witness affirmed that he had drafted his written statement in the prison where he was detained . He had been questioned about it by the public prosecutor .","\u00d6zden ORG said that at the material time he had been ORG , a position he still held . He had not been directly responsible for the investigation into the allegations concerning PERSON disappearance . His letter of CARDINAL DATE to the GPE public prosecutor \u2019s office contained a description of the actual conditions of detention and of DATE used for holding prisoners at ORG .","He had been to ORG and had inspected the LOC . He had heard evidence from people who said that they had seen PERSON in custody . Without giving details , the witness affirmed that their statements were inconsistent . He declined to comment on the conclusion , which read : \u201c Accordingly , it has been concluded that the statements of the persons held in custody were not true . \u201d","The witness explained that he had drafted his report at the request of ORG and had not organised any confrontation between the prisoners who claimed to have seen PERSON and the police officers present on the premises at the material time .","PERSON said that at the material time he had been the GPE public prosecutor . He was now the public prosecutor for the district of ORG ) .","The witness said that it had been another prosecutor , ORG , who had started the investigation into PERSON disappearance . The witness had been assigned to the case after a complaint was lodged by PERSON brother .","He summarised his investigation as follows . He had sent a letter to ORG enquiring whether PERSON had been detained there . The police had replied that he had at no stage been in custody . He had taken evidence from the witnesses whose names had been supplied by PERSON and they had repeated their written statements , saying that they had seen PERSON , in very poor shape , in custody at ORG . After hearing that evidence he had become convinced that PERSON had disappeared like many others .","The witness went on to say : \u201c At the material time there had been a number of cases of disappearances and , as a prosecutor , I was very disturbed by this . On hearing the evidence of the witnesses , I realised that the information given by the police did not reflect the truth . I received no replies to the letters I sent to other police departments . I sent the documents from the investigation to ORG , ORG , with a request for the cases to be joined . However , the case file was returned to me . I asked ORG to institute criminal proceedings against the head of ORG under the laws that made it an offence to refuse to cooperate with the relevant prosecuting authorities , as he had failed to produce a list of the police officers on duty when the alleged offences were committed . As the authorities did not respond , I was unable to interview the police officers or to arrange a confrontation with the eyewitnesses . The police enjoyed a sort of immunity at the time . I was not able to visit the premises where the prisoners were detained . \u201d","The witness explained that DATE was a relatively sensitive date in GPE and that , at that time of DATE , CARDINAL people were being held in police custody ; some of them later disappeared . He said : \u201c At the material time we , the prosecutors , were unable to inspect prisons or police stations . During a visit to ORG , I heard certain noises and asked the police officers where they were coming from . They replied that they had recorded the sound of people crying out in pain with a view to subduing prisoners . With regard to the present case , I tried to investigate it to the best of my ability . I had strong suspicions but did not manage to get very far . I am of NORP origin and my telephone line was being monitored . I was transferred to GPE ) , the district where I worked DATE . \u201d","PERSON said that at the material time he was a police officer with the anti - terrorist branch of ORG . He was responsible for compiling the custody records .","He described how the custody records were held . The following information was noted on them : the surname and first name of the accused ; the surname and first names of the accused \u2019s mother and father ; the accused \u2019s date of birth ; and the date and time the accused was taken into custody . He said that it was impossible for the name of a person taken into custody to be omitted from the record and that he was under fairly strict instructions in that regard . He said that a custody report was sent DATE to the departmental head and to the public prosecutor at ORG .","He indicated that the labels attached to the door handles were numbered and that the ORG names were written on other labels that were affixed to the cell doors .","With regard to the complaint concerning PERSON disappearance , he had not been interviewed by the authorities and had not been the subject of any investigation . The witness was unable to say whether a prosecutor had inspected the LOC in connection with the investigation . According to him , all the allegations of torture had been invented by certain movements hostile to the government and were totally unfounded .","He said that before the events that had given rise to the present case PERSON had been arrested for being a member of the PERSON . He had been charged and had served his sentence . He had also been taken into custody for other activities as a member of that illegal organisation . His name was on file and the anti - terrorist branch had his case file containing details of his criminal record and of his membership of an illegal organisation .","\u00dclk\u00fc Met said that at the material time he was deputy director at ORG .","He stated that after PERSON brother had lodged the complaint , the public prosecutor had begun an investigation and had made CARDINAL written requests to ORG for information , but he had not inspected the LOC .","The witness stated that the operation carried out by the police against the ORG DATE and DATE was routine and had been undertaken on the basis of information and statements received . The police had relatively large numbers of files on persons who were in custody or had been convicted for belonging to illegal organisations . He said that PERSON had not been arrested during the operation ; his name was not on the custody record and , in his opinion , the other ORG claims that PERSON had been detained at ORG had been concocted by militants .","He explained that at all times CARDINAL police officers were on duty with the responsibility of carrying out body searches on anyone who had been arrested , collecting their personal effects and getting them to sign a list setting these out . They were also required to enter the names of persons arrested on the custody record .","The witness dismissed all allegations of ill - treatment or torture during custody and stated that , while he had been deputy director , ORG for ORG Treatment or Punishment ( ORG ) had carried out CARDINAL ad hoc visits to ORG . He was , however , unable to comment on the CARDINAL public statements made by the ORG , in which they had found : \u201c Torture and other forms of ill - treatment were still important characteristics of police custody . \u201d","The witness rejected the assertion of the public prosecutor PERSON that ORG had failed to cooperate with him and said that prosecutors in charge of investigations could inspect the premises at any time .","The principles and procedures relating to liability for illegal acts may be summarised as follows .","NORP Under LAW all forms of homicide ( Articles DATE ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a government employee to subject someone to torture ( Article CARDINAL ) or ill - treatment ( Article CARDINAL ) . The authorities\u2019 obligations in respect of conducting preliminary investigations into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public ORG offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .","If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor \u2019s office an offence of which he has become aware in the course of his duties is liable to imprisonment .","A public prosecutor who is informed by any means whatsoever of a situation that gives rise to suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .","If the suspected offender is a civil servant and if the offence was committed in the course of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants , which restricts the public prosecutor \u2019s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect \u2019s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .","An appeal to ORG lies against a decision of the local administrative councils . If a decision not to prosecute is taken , the case is automatically referred to that court .","Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the LAW provides :","\u201c All acts or decisions of the authorities are subject to judicial review ...","The authorities shall be liable to make reparation for all damage caused by their acts or measures . \u201d","That provision establishes the ORG \u2019s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people \u2019s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .","The ORG has carried out CARDINAL visits to GPE . The first CARDINAL visits , in DATE and DATE , were ad hoc visits considered necessary in the light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill - treatment of persons deprived of their liberty , in particular , those held in police custody . A third visit took place at DATE . There were further visits in DATE , DATE and DATE , and DATE . The ORG \u2019s reports on these visits , other than the one in DATE , have not been made public , as the ORG \u2019s consent is required for publication and has not been forthcoming .","The ORG has issued CARDINAL public statements .","In its public statement adopted on DATE , the ORG concluded that torture and other forms of severe ill - treatment were important characteristics of police custody . On its first visit in DATE , the following types of ill - treatment were constantly alleged , namely hanging by the wrists tied together behind the back ( NORP hanging ) , electric shocks , beating of the soles of the feet ( falaka ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and psychological nature . The on - site observations in police establishments revealed extremely poor material conditions of detention .","On its second visit , in DATE , it found that no progress had been made in eliminating torture and ill - treatment by the police . Many persons made complaints of similar types of ill - treatment DATE an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations . On its third visit , from DATE to DATE , its delegation was inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . At the GPE and ORG , it found equipment that could be used for torture and the presence of which had no other credible explanation . The ORG concluded in its statement that \u201c the practice of torture and other forms of severe ill - treatment of persons in police custody remain[ed ] widespread in GPE \u201d .","In its second public statement issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of the DATE visits , ORG delegations once again found clear evidence of the practice of torture and other forms of severe ill - treatment by police ."],"violated_articles":["13","2","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-73185","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF \u015eEVK v. TURKEY","importance":4,"conclusion":"Violation of Art. 5-3 (lack of prompt court review);Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicants were born in DATE and DATE respectively and live in LOC . The second applicant is the son of the first applicant .","On DATE ORG asked ORG to issue an arrest warrant for QUANTITY persons who were suspected of being involved in an organised criminal gang . The gang was allegedly involved in bribing officials , threatening people into selling their property and in money laundering . The first applicant \u2019s name was included in the list . Upon the request of ORG , ORG issued a warrant allowing the police to conduct searches of the houses of the suspected persons and to arrest them for the purposes of interrogation .","On DATE both applicants were taken into custody in GPE . The first applicant was arrested at his home . During the search of his residence the police found CARDINAL pistols , CARDINAL hunting rifles , CARDINAL wire strangulation cord , CARDINAL butterfly knife , CARDINAL sets of handcuffs , CARDINAL commando knives , CARDINAL cartridge clips and CARDINAL cartridges . The police prepared a search and arrest report , which was signed by the applicant .","The second applicant was working as a security guard in an exchange office owned by GPE , the person suspected of being the leader of the gang . While the police were conducting a search of the exchange office in order to arrest GPE , the second applicant arrived on the scene and was taken into custody for interrogation .","On DATE the ORG requested authorisation from ORG to extend the applicants\u2019 detention in police custody , as there were a number of suspects .","On DATE both applicants gave statements to the police . They denied any involvement with the gang . In his statement , the first applicant explained that he knew GPE and had occasionally lent him money . He also confirmed that he had bought a shop from him . However , he denied the allegation that he had been instructed by GPE to threaten people .","On DATE both applicants were interrogated by ORG . During their questioning , the applicants repeated the statements they had made to the police . The second applicant was subsequently released . On DATE the first applicant was brought before the investigating judge at FAC , who subsequently ordered his detention on remand .","On DATE the first applicant filed an objection against the remand decision .","On DATE the ORG filed a bill of indictment with ORG against the applicants and CARDINAL others , accusing them of being involved in the activities of an organised criminal gang , namely by bribing officials and threatening people .","On DATE the first applicant filed a petition with the court , requesting his release .","On DATE the applicants\u2019 trial began at ORG . At the end of the hearing , taking into consideration the seriousness of the offence and the evidence in the case file , the court ruled that the first applicant should be kept in detention on remand .","On DATE the first applicant \u2019s representative challenged the decision to continue to detain the first applicant on remand before ORG , via the registry of ORG . He alleged that there was insufficient evidence to keep his client in detention . Upon the request of ORG , the public prosecutor submitted an opinion on DATE .","On DATE the court refused the first applicant \u2019s request for release . This decision was sent to ORG on DATE .","On DATE ORG held its second hearing and released the first applicant pending trial .","On CARDINAL DATE the court sentenced the first applicant to CARDINAL months\u2019 imprisonment and acquitted the second applicant .","The fourth paragraph of LAW ( as amended by PERSON no . CARDINAL\/CARDINAL of DATE ) provides that any person who has been arrested and\/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and , if successful , be released .","Section CARDINAL of Law no . CARDINAL on ORG or ORG provides :","\u201c Compensation shall be paid by the ORG in respect of all damage sustained by persons :","( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute ;","( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;","( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose ;","( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired ;","( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;","( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ; or","( CARDINAL ) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96529","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"DLUGIEWICZ v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr J. Angermann , a lawyer practising in GPE , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr J. PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested by the police .","On DATE the ORG ( S\u0105d Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that he had smuggled into GPE a large quantity of an illegal substance used for the production of amphetamines . The court held that his detention was necessary to secure the proper course of the proceedings as there was a fear that the applicant would attempt to influence witnesses or evade his trial since he lived in GPE .","On DATE the ORG ( PERSON ) dismissed an appeal by the applicant against the decision to detain him .","On DATE and CARDINAL DATE ORG further extended the applicant \u2019s detention . In the latter decision the court relied on the likelihood that a heavy sentence might be imposed on the applicant .","On DATE the applicant was charged with having committed other offences relating to prostitution , deriving profits from it and participating in an organised criminal gang .","On DATE the applicant and CARDINAL co - accused were indicted before ORG .","On DATE the trial court extended the applicant \u2019s detention , referring to the grounds given previously and holding that there was a risk that the accused would try to put pressure on witnesses .","On DATE the ORG decided that ORG was competent to try the applicant \u2019s case . That decision was quashed on appeal by ORG ( S\u0105d Apelacyjny ) on DATE .","On DATE , DATE and DATE and DATE the ORG extended the applicant \u2019s pre - trial detention . The trial court reiterated the grounds given previously and found that the accused had not proved the existence of circumstances justifying their release . The court also held that keeping the applicant in detention was necessary to secure the proper course of the trial as not all the witnesses had been heard yet .","The applicant lodged an appeal against the decision of DATE but it was dismissed on DATE by ORG .","As the length of the applicant \u2019s detention had reached the statutory timelimit of DATE laid down in LAW of LAW ( Kodeks post\u0119powania karnego ) , ORG applied to ORG ( S\u0105d Apelacyjny ) , asking for the applicant \u2019s detention to be extended beyond that term . ORG extended his detention on DATE and DATE . The court justified it by the probability that a severe sentence might be imposed on the applicant , which made it likely that , if released , he would obstruct the proceedings .","The applicant appealed against the decision of CARDINAL DATE but the appeal was dismissed by ORG on DATE .","Applications by the applicant for release or for the imposition of other preventive measures were dismissed on DATE and on DATE and DATE .","The trial court held the first hearing on DATE . Thereafter , hearings were held at regular intervals .","On DATE the ORG gave judgment in the applicant \u2019s case . The applicant was convicted as charged and sentenced to CARDINAL years\u2019 imprisonment and a fine . The applicant did not appeal against that judgment and it became final .","On DATE the applicant was released .","The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are set out in the ORG \u2019s judgments in the cases of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59215","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":2001,"docname":"CASE OF PIALOPOULOS AND OTHERS v. GREECE","importance":3,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Not necessary to examine Art. 13;Just satisfaction reserved","judges":"Andr\u00e1s Baka","text":["The first applicant is a NORP citizen , born in DATE and living in GPE . The second applicant is also a NORP citizen born in DATE and living in Filothei in Attika . The third applicant is the first applicant \u2019s stepbrother . He is a NORP citizen , born in DATE and living in GPE . The fourth applicant is the first applicant \u2019s sister . She is a NORP citizen , born in DATE and living in GPE .","On DATE the first CARDINAL applicants bought a plot of land in PERSON of a total surface of QUANTITY ( block FAC on the town plan ) . The first applicant became the owner of PERCENT of the plot and the second applicant of the rest . On CARDINAL DATE GPE PERSON gave the CARDINAL applicants permission to demolish some old buildings that existed on the plot .","On DATE the CARDINAL applicants applied to the Prefecture for a permit to build a multi - storey shopping centre thereon .","On DATE at a meeting of ORG the mayor informed the councillors that urgent action had to be taken to block the proposed development and accepted that unusual means were being used to forestall the delivery of the permit . However , a councillor drew the mayor \u2019s attention to the fact that the municipality lacked adequate means to expropriate the applicants\u2019 plot .","On DATE the Prefect of Eastern Attika decided not to issue any new building permits in respect of commercial premises of a certain size ( buildings exceeding CARDINAL of the maximum authorised size ) in PERSON for DATE ( decision no . DATE published in ORG on DATE ) . He exempted commercial premises for which an application had already been lodged , provided that the file was \u201c complete \u201d in accordance with the presidential decree of CARDINAL DATE .","On DATE ORG , Town Planning and Public Works advised the first CARDINAL applicants that the file which they had submitted together with their application for a building permit was \u201c complete \u201d . Given the ORG \u2019s decision of CARDINAL DATE , the file \u201c would continue to be considered complete pending resumption of the delivery of new building permits \u201d .","On DATE the Prefect of PERSON decided \u201c to extend the freeze on new building licences in respect of block No . CARDINAL in PERSON by DATE as from CARDINAL DATE \u201d .","On DATE the ORG decided to change the authorised use of the applicants\u2019 plot from development land to park land ( decision no . CARDINAL\/CARDINAL\/CARDINAL\/CARDINAL published in ORG on DATE ) . Following this decision , the first CARDINAL applicants requested the town planning authorities of the prefecture to decide who should compensate them for the expropriation of their plot of land . On DATE the town planning authorities decided that the applicants should be expropriated by , among others , GPE ( act no . CARDINAL ) . The municipality appealed to the ORG who , on DATE , confirmed act no . CARDINAL of the town planning authorities and ordered the municipality to compensate the CARDINAL applicants in respect of QUANTITY . The municipality appealed against the prefect \u2019s decision of CARDINAL DATE to the Secretary General of ORG claiming that it should not bear on its own the cost of compensating the applicants for the QUANTITY in question . On CARDINAL DATE the Secretary General confirmed the decision of CARDINAL DATE of the prefect ( decision no . DATE ) .","On DATE the first CARDINAL applicants asked the single - member first instance civil court ( monomeles protodikio ) of GPE provisionally to determine their compensation . On DATE the court decided that the CARDINAL applicants should receive MONEY .","On DATE GPE applied to ORG ( PERSON ) for judicial review of decision no . MONEY of the Secretary General of ORG . The first CARDINAL applicants intervened in favour of the Secretary General .","On DATE the Secretary General of ORG approved a new town plan for PERSON , which was published in ORG on DATE .","On DATE the Prefect of Eastern Attika decided to amend the new town plan of PERSON . It was provided that the applicants\u2019 plot could only be used as a park and for underground parking . The decision was published in ORG on DATE .","On DATE the first CARDINAL applicants requested ORG ( efetio ) of GPE to declare under LAW legislative decree no . CARDINAL that the ORG \u2019s decision no . DATE concerning the expropriation had been revoked ipso jure on CARDINAL DATE because the compensation fixed provisionally had not been paid within DATE from the first instance civil court \u2019s decision of DATE . The ORG and GPE were parties to the proceedings . On DATE ORG acceded to the ORG request ( decision no . CARDINAL\/CARDINAL ) .","On DATE and DATE ORG of Neo Psihiko discussed the future of the applicants\u2019 plot . On the second occasion , the mayor stated that he had been unable to conclude a loan in order to compensate the applicants in full . He also stated that the owners of neighbouring plots of land had informed him that they lacked the funds to pay part of the applicants\u2019 compensation . Some councillors made proposals which would have lowered the value of the applicants\u2019 plot .","On DATE the first CARDINAL applicants received a letter from GPE referring to negotiations which had been conducted with them . The CARDINAL applicants were invited to agree to a plan for the development of the plot . According to the plan , the municipality would acquire part of the plot and transform it into a park . The applicants would be allowed to construct a building with a QUANTITY underground garage . There would be shops on the ground floor and offices on the other floors .","On DATE ORG ( ORG ) decided not to appeal in cassation against the decision of ORG . On CARDINAL DATE it informed ORG and ORG , Town Planning and Public Works accordingly and requested them to take the necessary steps to give effect to that decision .","On DATE ORG of Neo Psihiko discussed the outcome of the negotiations with the first CARDINAL applicants . The mayor invited the members of the council not to lose sight of the fact that the municipality risked finding itself in a position where it would be unable to pay full compensation to the CARDINAL applicants for the expropriation of their plot . In the end , the council decided to request the prefecture to expropriate the plot ( decision no . CARDINAL ) . It proposed the creation of a park , an underground garage and a public building . The CARDINAL applicants protested .","On DATE the first CARDINAL applicants requested the Prefect of Eastern Attika formally to revoke decision no . DATE , as he was required to do by the law .","On DATE ORG examined GPE application for judicial review of decision no . MONEY of the Secretary General of ORG . The first CARDINAL applicants , who had intervened in favour of the Secretary General , claimed that this decision did not produce any legal effects because on CARDINAL DATE ( decision no . CARDINAL\/CARDINAL ) ORG had declared that it had been ipso jure revoked . However , the ORG considered that , the decision of the appeal court notwithstanding , the administration was under an obligation formally to revoke decision no . CARDINAL\/CARDINAL\/CARDINAL\/CARDINAL expropriating the plot . As long as this had not happened , decision no . CARDINAL\/CARDINAL\/CARDINAL could be judicially reviewed . Moreover , the ORG considered that the Secretary General of ORG had illegally ordered GPE to bear on its own the cost of compensating the applicants for the QUANTITY in question . The owners of other neighbouring property were liable as well . ORG , therefore , decided to quash decision no . DATE ( decision no . DATE ) .","On DATE the town planning authorities of ORG asked GPE whether it wished to expropriate the applicants\u2019 plot again and drew its attention to the conditions for doing so . On DATE the town planning authorities informed the municipality that , if it wanted the plot to be expropriated , a decision by the municipal council concerning the necessary funds should be adopted before CARDINAL DATE . On both occasions the town planning authorities informed the municipality that , if it did not take the necessary measures for a fresh expropriation , the prefecture would proceed to the revocation of the first expropriation as it was required to do by law .","On DATE the first CARDINAL applicants applied to the prefecture for a building permit .","On DATE ORG , Town Planning and Public Works informed ORG that , decision no . ORG notwithstanding , the prefecture had to comply with decision no . CARDINAL\/CARDINAL of ORG and officially revoke the expropriation decision . The ministry also considered that the amendment of the town plan of CARDINAL DATE amounted to a new expropriation . According to the case - law of ORG , this would be lawful only if there was a serious town - planning need and the money for the compensation was readily available .","On DATE ORG of Neo Psihiko requested ORG to re - issue act no . CARDINAL on the persons liable to pay compensation taking into consideration decision no . TIME of ORG or else to adopt a new decision expropriating the applicants\u2019 plot of land . The municipal council declared that it was ready to pay the compensation required in order for the expropriation to be completed ( decision no . CARDINAL\/CARDINAL ) .","On DATE the first CARDINAL applicants , with a view to reaching a friendly settlement , applied for a building permit offering , at the same time , to construct at their expense a public building for the municipality .","On DATE the Prefect of Eastern Attika considered that the municipality \u2019s case for a new expropriation was not convincing and decided to free part of the applicants\u2019 plot for development ( decision no . CARDINAL published in ORG on DATE ) . On DATE GPE applied to ORG for judicial review of this decision . The first CARDINAL applicants intervened in the proceedings in favour of the ORG .","On DATE ORG considered that its previous decision no . CARDINAL\/CARDINAL could not affect the obligation of ORG to comply with decision no . CARDINAL\/CARDINAL of ORG of CARDINAL DATE and officially revoked the first expropriation decision . ORG found that ORG had complied with the above - mentioned decision of ORG by issuing decision no . CARDINAL . However , this decision had not taken into consideration the fact that GPE had fully cooperated in the first expropriation procedure . Neither had it taken into consideration the fact that the main reason for the non - completion of the first expropriation procedure had been the dispute which had arisen as to who should have compensated the first CARDINAL applicants . In the light of all the above , the ORG found that the Prefect of ORG decision not to accede to the municipality \u2019s request for a second expropriation did not contain adequate reasons . ORG , therefore , quashed decision no . CARDINAL of the Prefect of Eastern Attika ( decision no . ORG ) .","On DATE the second applicant requested the Mayor of PERSON to provide him with a certified copy of the municipality \u2019s budget and of the TIME of the meeting of the municipal council at which the budget had been approved .","On DATE the town planning authorities of ORG , which had taken over the functions of ORG , informed GPE that , since decision no . CARDINAL of the Prefect of Eastern Attika had been quashed , it was still under an obligation to comply with decision no . CARDINAL\/CARDINAL of ORG . It also invited the municipality to inform it within DATE whether there existed a serious town - planning need for the expropriation of the applicants\u2019 plot of land and whether there existed sufficient funds in the ORG budget for compensating the applicants . Finally , the prefecture warned the municipality that , in the absence of a prompt reply , it would change the authorised use of the applicants\u2019 plot to development land .","The Mayor of PERSON replied to ORG on DATE requesting that the applicants\u2019 plot should be expropriated for the following reasons . On the one hand , a number of supermarkets and banks had been recently built in the area , which attracted CARDINAL persons and a lot of traffic every day . On the other hand , there were no parks or parking space . As a result , if a new development were authorised , the situation would become intolerable . The mayor referred to the Prefect of LOC decision of CARDINAL DATE according to which the applicants\u2019 plot could only be used as a park and for underground parking . The mayor also informed the prefecture that provision had been made for MONEY in the municipality \u2019s budget for DATE and an additional sum would be made available in DATE .","On DATE ORG asked the municipality to clarify within DATE whether the sum of MONEY had been earmarked for the expropriation of the applicants\u2019 plot , what was the estimated total cost of the expropriation , whether the additional sum required existed and , if not , which were the sources from which it could be obtained and what were the prospects of obtaining it . The municipality was again threatened with a decision changing the authorised use of the applicants\u2019 land .","On DATE the first CARDINAL applicants invited the ORG to comply with decision no . CARDINAL\/CARDINAL of ORG and decision no . CARDINAL\/CARDINAL of ORG .","Having received no reply , on DATE the second applicant requested ORG to inform him of the conditions for the development of his plot in PERSON . On DATE ORG informed the second applicant that , according to the decision of the Prefect of LOC of DATE , the plot could only be used as a park and for underground parking . Decision no . CARDINAL of ORG had been quashed by ORG . When the CARDINAL applicants had originally applied for a building permit there were no restrictions on their plot of land . However , on DATE and DATE the prefect of PERSON had decided to suspend the delivery of building permits of the kind requested by the CARDINAL applicants .","On DATE the second applicant applied to the town planning authorities of the prefecture for permission to construct an open - air parking area on his plot . The authorities turned his application down referring , inter alia , to the decision of the Prefect of Eastern Attika of DATE DATE . On DATE the second applicant applied to the town planning authorities for permission to construct an underground garage . On DATE the authorities replied that the garage would be built by the appropriate organ after the conclusion of the expropriation .","Following a further query by the first CARDINAL applicants , on DATE GPE informed them that , according to the decision of ORG of DATE , their plot of land could only be used as a park and for underground parking and that the decision in question had not been revoked .","On DATE the first applicant transferred PERCENT of the plot to the third applicant and PERCENT to the fourth applicant .","On DATE the town planning authorities of ORG informed ORG that the decision of CARDINAL DATE of ORG amounted to an expropriation of the applicants\u2019 plot . However , when the town planning authorities wrote to GPE on DATE , they were not aware of this decision . Following the quashing of decision no . CARDINAL of ORG by ORG , the use of the applicants\u2019 plot is governed by the decision of CARDINAL DATE . The town planning authorities , further to a request by GPE , were in the course of determining those liable to pay compensation because of the expropriation .","According to decision no . CARDINAL of ORG , an expropriation that has been revoked may be re - imposed only if there is a serious town - planning need and the authorities are able to pay appropriate compensation immediately . In DATE ORG issued a circular informing the authorities of this development ( circular no . CARDINAL\/CARDINAL ) .","According to the case - law of ORG , amendments to town plans must be published in ORG together with a detailed plan . Otherwise they are null and void ( decisions ORG . CARDINAL and CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98832","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF KHAYDAROV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE , NORP . He is currently detained in a remand prison in GPE .","In DATE a civil war erupted in NORP when ethnic groups under - represented in the ruling elite rose up against the national government of President PERSON . Politically , the discontented groups were represented by liberal democratic reformists and NORP , who fought together and later organised themselves under the banner of ORG ( \u201c UTO \u201d ) . By DATE CARDINAL people had been killed . On DATE a peace agreement was signed by President PERSON and the ORG leader . However , in DATE fighting again erupted in several regions of NORP , incited by an opposition group . Government forces retaliated and drove the armed faction of the opposition group to seek sanctuary in GPE .","The applicant , an ethnic NORP , lived in the village of NORP in LOC of NORP . The village was mainly populated by ethnic NORP . In DATE large - scale persecution of ethnic NORP commenced in NORP . There were several armed attacks on the applicant 's village ; some of his acquaintances were killed .","The local administration of the applicant 's village decided to create a number of checkpoints on the way to the village to protect the inhabitants and provided those who manned those checkpoints with firearms . The applicant himself was not given any firearms .","In DATE the village was attacked once again ; after that , several members of the local militia and the applicant fled to GPE .","In DATE the applicant moved to GPE .","On several occasions the applicant travelled from GPE to GPE . He obtained internal NORP identity papers and a foreign passport in DATE and DATE respectively . His last visit to NORP took place in DATE .","On DATE ORG instituted criminal proceedings against PERSON , a fellow villager of the applicant who had participated in the militia and fled to GPE in DATE , charging him with banditry and organisation of an illegal armed group . The applicant was listed as CARDINAL of the members of the group .","On DATE ORG decided to bring charges against the applicant , stating that in DATE he had been a member of PERSON illegal armed group and that such actions constituted an act of banditry punishable under LAW . It was also decided that the applicant should be put on a wanted list .","On DATE ORG decided , in the absence of the applicant , to place him in custody .","On DATE the applicant was put on an international wanted list .","On DATE the investigation in the applicant 's case was suspended as the applicant was at large .","On DATE ORG severed the applicant 's case from PERSON criminal case . The decision read , in so far as relevant , as follows :","\u201c At DATE [ Mr M. ] , taking advantage of the unstable situation in GPE , created an illegal armed group to attack legal entities and private individuals ; the group was active until DATE .","...","At DATE Mr PERSON was a voluntary member of the illegal armed group and participated in armed hostilities .","On DATE , after officers of law - enforcement agencies had entered the territory of LOC , PERSON armed group fled the district territory and left NORP . \u201d","On DATE ORG sent a request for the applicant 's extradition to ORG , stating that in DATE the applicant had been a member of Mr PERSON 's illegal armed group .","On DATE ORG received a request by ORG to extradite the applicant .","On DATE ORG sent ORG additional documents stating that the applicant had participated in PERSON group which had fought the government troops , and that he had borne arms and had manned the checkpoint in the village of NORP .","On DATE ORG ordered the applicant 's extradition to NORP . The decision read , inter alia , as follows :","\u201c The actions of [ Mr ] PERSON are punishable under the NORP criminal law and correspond to LAW of LAW ( participation in a gang ) , which provides for a sanction in a form of imprisonment for DATE .","... No [ legal ] impediments to [ Mr ] PERSON extradition under treaties and NORP laws have been established . \u201d","On DATE the applicant was notified of the extradition order of DATE .","The applicant and his counsel lodged appeals against the decision of DATE on DATE and DATE respectively . In his appeal the applicant alleged that he was being persecuted in NORP for political reasons related to the civil war .","On DATE ORG , at the applicant 's counsel 's request , included in the case file reports by international NGOs on the political climate in NORP and postponed the examination of the appeals because the applicant 's appeal against the refusal to grant his asylum request had not yet been examined .","On DATE ORG again postponed the hearing pending examination of the appeal against the refusal to grant the applicant asylum and requested additional documents from ORG concerning the charges brought against the applicant in GPE .","On DATE ORG sent requests for information to the NORP and ORG concerning the applicant 's allegations of a risk of ill - treatment , as well as to ORG concerning the possibility of amnesty being granted to the applicant in NORP , and postponed a hearing on the appeal against the extradition order pending the completion of the asylum proceedings .","On DATE ORG informed ORG that the applicant could not benefit from acts of amnesty in GPE .","On DATE and CARDINAL DATE ORG again sent requests for information concerning the applicant 's allegations of a risk of ill - treatment to the NORP and ORG .","On DATE ORG again postponed a hearing .","On DATE the NORP ORG informed ORG that it had no information concerning any political motives for the applicant 's prosecution and noted that NORP had ratified nearly every major international human - rights instrument , including LAW ( ORG ) and ORG ( ORG ) Convention against Torture .","On DATE the ORG questioned PERSON , a member of ORG for ORG , who stated that torture and ill - treatment were frequently practised in GPE .","On DATE ORG dismissed at first instance the appeals lodged by the applicant and his counsel against the extradition order of DATE . The court reasoned , in particular , that the applicant had voluntarily left NORP in DATE and had been able to freely enter the country since then , that ORG had guaranteed that the applicant had not been prosecuted for political or religious reasons , and that NORP had ratified nearly every major international human - rights instrument . The applicant 's allegation that he had been prosecuted in relation to the civil war remained unanswered .","On DATE the applicant 's counsel appealed against ORG judgment .","On DATE ORG informed ORG of the following :","\u201c The criminal proceedings against [ Mr ] PERSON are not inspired by any political motives and ORG guarantees that [ Mr ] PERSON will be prosecuted only in respect of the act he was charged with ; he will be able to freely leave the territory of NORP after completion of the court proceedings and having served any sentence ; he will not be extradited to CARDINAL State without the NORP authorities ' consent and will not be persecuted on political and religious grounds . \u201d","On DATE ORG of GPE ( \u201c the ORG \u201d ) quashed the judgment of DATE because ORG had failed to thoroughly examine the applicant 's counsel 's claim that the crime that the applicant had been charged with was of a political nature . Moreover , ORG stated that ORG of the ORG High Commissioner for Refugees ( ORG ) had confirmed that the applicant 's fears of political persecution had been well - founded . The case file was returned to ORG for a fresh examination .","On CARDINAL DATE ORG informed ORG that NORP had ratified ORG .","On DATE ORG re - examined the appeals against the extradition order and upheld it . It reasoned that the applicant was a NORP national , held no refugee status and , according to ORG , had not been prosecuted for political or religious reasons . The court also pointed out that the applicant had applied for temporary asylum only on DATE and concluded that his application could not impede the examination of the appeals against the extradition order . It further referred to the guarantees of DATE and CARDINAL DATE provided by ORG that the applicant would not be persecuted on political and religious grounds and dismissed the report by Ms Ryabinina as unsubstantiated , arguing that the assurances in question sufficed to exclude the risk of ill - treatment in the applicant 's case . The applicant 's allegations that the criminal proceedings against him had been linked to the events surrounding the civil war remained unanswered .","On DATE ORG upheld ORG decision of DATE . It reasoned that NORP had ratified LAW and referred to the guarantees given by ORG . On DATE the extradition order became final .","On DATE the applicant applied to ORG ( \u201c the GPE FMS \u201d ) for asylum , claiming that the NORP authorities had persecuted him on the ground of his ethnic origin .","On DATE the asylum request was dismissed ; on DATE the applicant was notified accordingly .","On DATE the ORG of GPE dismissed an appeal by the applicant against the decision by ORG .","On DATE ORG upheld the judgment of DATE on appeal .","On DATE the ORG High Commissioner for Refugees declared the applicant a person requiring international protection .","On DATE the GPE ORG rejected the applicant 's request for temporary asylum and notified him accordingly on DATE .","The applicant appealed against the refusal of CARDINAL DATE to ORG of GPE ( \u201c the NORP FMS \u201d ) .","On DATE ORG of the ORG sent the NORP ORG a report in support of the applicant 's request for temporary asylum , stating that he ran a real risk of being ill - treated in NORP . The report read , in particular , as follows :","\u201c Mr PERSON 's allegations [ of a risk of ill - treatment ] are supported by numerous documents concerning the events of DATE in NORP . ... [ E]thnic NORP were subjected to oppression and persecution ; in particular , there were reports of numerous killings of civilians before and during the armed conflict in DATE , which led to a mass exodus of ethnic NORP from northern areas of NORP , in particular to GPE .","Having examined Mr PERSON 's application and having assessed his fears regarding his return to [ NORP ] , the ORG has established that Mr PERSON 's application and his fears of being subjected to persecution , on the grounds of political convictions attributed to him , in the form of arrest , torture with a view to obtaining a self - incriminating deposition , unlawful and unfair trial and lengthy imprisonment for acts that he had not committed are well - founded .","... There are strong reasons to believe that the criminal proceedings against the applicant instituted by the NORP authorities amount to persecution on the grounds of political views attributed to the applicant , since [ the NORP authorities ] associate the applicant with anti - governmental activities because he had been a member of militia groups suspected of involvement in the armed conflict of DATE .","...","The ORG considers that there are serious concerns that Mr PERSON will be subjected to torture and other violations of basic human rights , which mean that there is an even greater risk of his being persecuted on the grounds of political views attributed to him . ... [ Mr PERSON 's ] case corresponds to the definition of a ' refugee ' within the meaning of the DATE United Nations Convention Relating to the Status of Refugees and LAW .","... PERSON is charged with ... banditry . However , it is noteworthy that the criminal case in which Mr PERSON is charged was opened in DATE and the preliminary investigation concerning PERSON was suspended in DATE , which shows that during such a lengthy period of investigation no proof of his guilt had been found and that the requesting ORG has no such proof .","The NORP authorities have not provided a single piece of factual evidence of Mr PERSON 's criminal activity in his country of origin , and the documents provided by the NORP counterparty as a basis for extradition are contradictory . ... [ t]he ORG concludes that there is no reliable evidence of the fact that Mr PERSON committed criminal acts , such as banditry , while in NORP territory . \u201d","On DATE the applicant was arrested in GPE as a person wanted by the NORP authorities . Upon his arrest the applicant learned for the first time that there had been criminal proceedings against him . On DATE ORG of the ORG requested the NORP police to keep the applicant in custody pursuant to LAW .","The applicant was then placed in remand prison GPE in GPE .","DATE . On DATE ORG of GPE ordered the applicant 's placement in custody pending extradition pursuant to ORG , CARDINAL and CARDINAL and LAW ORG ) . The court stated that on DATE the applicant had been put on a wanted list and that he had no permanent place of residence in GPE and concluded that , if not in custody , he could escape and impede his extradition to NORP . The term of the detention was not specified .","On DATE ORG again ordered the applicant 's placement in custody pursuant to ORG and CARDINAL of the ORG for an unspecified period of time . The court reasoned that less severe preventive measures could not be applied because the applicant had been at large since DATE , was a Tajikistani national , had no registered place of residence in GPE and was charged with a crime that was punishable by imprisonment for DATE .","On DATE the applicant 's counsel applied to the governor of remand prison FAC for the applicant 's release , claiming that the maximum detention period permitted by domestic law had expired . On DATE the governor of the remand prison replied that the applicant had not appealed against the decision of DATE authorising his detention and that the question of his release should be decided upon by ORG .","On DATE the applicant 's counsel complained to the ORG of GPE that the applicant 's detention was unlawful .","On DATE the ORG informed the applicant 's counsel that it had no jurisdiction to examine the complaint .","On DATE the applicant 's counsel complained to ORG of GPE , under LAW ORG , that ORG had unlawfully failed to apply for an extension of the term of the applicant 's detention as required by LAW ORG . On DATE the President of ORG returned the complaint for elimination of discrepancies .","On DATE the applicant 's counsel lodged another complaint under LAW ORG with ORG of GPE , alleging inaction on the part of ORG .","On DATE the ORG refused to examine the applicant 's complaint of CARDINAL DATE for the reason that its subject matter did not fall within the ambit of LAW ORG .","On DATE ORG ruled that the preventive measure applied to the applicant should remain unvaried until DATE .","On DATE ORG ruled that the preventive measure applied to the applicant should remain unvaried .","On DATE the ORG quashed the decision of LOC DATE and remitted the matter to the first - instance court for a fresh examination .","On DATE the ORG again dismissed the applicant 's complaint , arguing that LAW ORG was inapplicable since there had been no criminal proceedings pending against the applicant in GPE . It reasoned as follows :","\u201c The [ applicant 's ] requests to declare unlawful the inaction of the GPE prosecutor 's office on account of its failure to perform its function of supervising compliance with the law in custodial institutions could not be examined under LAW of the ORG because the prosecutors ' supervision of the custodial system is not related to the criminal proceedings against [ Mr ] PERSON .","Acts and inaction of agents of the prosecutor 's office can be challenged by way of another procedure which is not provided for in LAW ORG .","The request for extension of the term of custodial detention is an exclusive right of the competent bodies and a court is not entitled to impel [ those bodies ] to bring such requests . \u201d","On DATE the applicant 's counsel appealed against the decision of DATE .","On DATE the applicant 's counsel complained to ORG that the applicant 's detention was unlawful . Referring to LAW , she argued that LAW ORG had been breached in the applicant 's case as his term of detention had not been extended and that there had been no judicial review of the lawfulness of the detention .","On DATE a judge of ORG sent the applicant 's counsel a letter explaining that it was open to the applicant to appeal against the decision on choosing the preventive measure and that there were no other avenues of complaining of the alleged unlawfulness of detention .","On DATE the applicant 's counsel appealed against the refusal to examine her complaint . On DATE the judge of ORG sent her a letter explaining that the previous letter could not be appealed against .","On DATE ORG dismissed the appeal against the decision of DATE .","On DATE the applicant 's counsel requested ORG to release the applicant .","LAW ORG governs the application of preventive measures . Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond , continue to be engaged in criminal activities , threaten witnesses or impede the investigation ( LAW ) . When deciding on the necessity to apply a preventive measure , it is necessary to take into account the gravity of the charges and the various personal details of the person concerned ( LAW . Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A request for placement in custody should be lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) LAW CARDINAL \u00a7 CARDINAL ) . The request should be examined by a judge of a district court or a military court of a corresponding level ( LAW ) . A judge 's decision on placement in custody may be challenged before an appeal court within DATE ( Article CARDINAL \u00a7 CARDINAL ) . The period of detention pending investigation of a crime can not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level further to a request lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) ( LAW ) . Further extensions up to DATE may be granted on an investigator 's request approved by a prosecutor of GPE only if the person is charged with serious or particularly serious criminal offences ( LAW ) .","Chapter CARDINAL of the ORG lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged . Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings , or to discontinue them , or any other decision or inaction capable of impinging upon the rights of \u201c parties to criminal proceedings \u201d or of \u201c hindering an individual 's access to court \u201d may be subject to judicial review ( LAW ) .","Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .","Verifying the compatibility of LAW ORG with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .","In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is , the procedure laid down in the ORG . Such procedure comprised , in particular , LAW and the norms in its LAW ( \u201c Preventive measures \u201d ) , which , by virtue of their general character and position in Part I of the LAW ( \u201c General provisions \u201d ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .","The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .","In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .","The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .","ORG dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .","DATE . The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .","ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE , on the basis of a request for his or her extradition , without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .","DATE . Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :","\u201c ...","Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ...","An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...","the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","ORG for Human Rights issued a Recommendation ( CommDH(CARDINAL)CARDINAL ) on DATE concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :","\u201c CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . \u201d","For other relevant documents , see the ORG 's judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINALV.","When performing actions requested under LAW , to which GPE and GPE are parties , a requested official body applies its country 's domestic laws ( LAW ) .","Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .","The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .","A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE from the date of placement in custody ( Article CARDINAL \u00a7 CARDINAL ) .","Conclusions and Recommendations : NORP , issued by ORG on DATE ( CAT \/ C \/ TJK \/ CO\/CARDINAL ) , refer to the following areas of concern regarding the human - rights situation in the country :","\u201c The definition of torture provided in domestic law ... is not fully in conformity with the definition in LAW , particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity .","...","There are numerous allegations concerning the widespread routine use of torture and ill - treatment by law enforcement and investigative personnel , particularly to extract confessions to be used in criminal proceedings . Further , there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment .","...","The ORG is also concerned at :","( a ) The lack of a legal obligation to register detainees immediately upon loss of liberty , including before their formal arrest and arraignment on charges , the absence of adequate records regarding the arrest and detention of persons , and the lack of regular independent medical examinations ;","( b ) Numerous and continuing reports of hampered access to legal counsel , independent medical expertise and contacts with relatives in the period immediately following arrest , due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials ;","( c ) Reports that unlawful restrictions of access to lawyers , doctors and family by ORG agents are not investigated or perpetrators duly punished ;","( d ) The lack of fundamental guarantees to ensure judicial supervision of detentions , as the ORG is also empowered to exercise such oversight ;","( e ) The extensive resort to pretrial detention that may last DATE ; and","( f ) The high number of deaths in custody .","...","There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the LAW by both law enforcement officials and investigative bodies .","...","There are reports that there is no systematic review of all places of detention , by national or international monitors , and that regular and unannounced access to such places is not permitted . \u201d","ORG in its document \u201c NORP : Overview \u201d , updated in DATE , describes the situation of the NORP minority in NORP as follows :","\u201c The situation in NORP is similar in many respects to that of its neighbours . ... Since independence , NORP have attempted to assert their dominance by linguistic and other preferences that tend to discriminate against and exclude minorities , often leading to resentment or even an exodus . While they were DATE of the population at the time of independence , many NORP fled during the period of the civil war . They remain the largest minority at PERCENT of the population according to a DATE census , and are concentrated in areas usually associated with opposition to the government . This has led to a general distrust of NORP , and in turn discriminatory treatment towards them in many institutions of the state . Once again , oppressive measures have been presented as necessary in the name of the fight against ' terror ' and ' separatism ' . The degree of under - representation of minorities in public life is startling : CARDINAL members of ORG are NORP , despite this minority 's very substantial numbers .","... Despite constitutional provisions that initially appear to guarantee the use of minority languages , and despite the large percentage of minorities in the country , in particular NORP , minorities are largely excluded from employment in public service . \u201d","The World Report Chapter : NORP by ORG , released in DATE , describes the human - rights situation in the country as follows :","\u201c NORP 's definition of torture does not comply fully with ORG recommendations to the country in DATE . In a positive move , in DATE the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings .","Experts agree that in most cases there is impunity for rampant torture in NORP . In CARDINAL of the few cases that reached the courts , CARDINAL policemen in GPE province were convicted in DATE for ill - treating minors ; CARDINAL of the CARDINAL received a fouryear prison sentence , and the other a suspended sentence .","NGOs and local media reported CARDINAL deaths in custody in DATE , including the death from cancer of the ex - deputy chair of ORG Revival PERSON . The party alleged his arrest in DATE was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery .","In DATE decision ( PERSON v. NORP ) ORG found that NORP violated the rights , including freedom from torture , of CARDINAL applicants , CARDINAL of them minors when they were arrested . NORP failed to cooperate with the committee 's consideration of the complaint . Similar violations were established in DATE decision ( NORP and GPE v. NORP ) . \u201d","NORP The DATE GPE ORG on ORG , released on DATE , provides the following information in relation to NORP :","\u201c The government 's human rights record remained poor , and corruption continued to hamper democratic and social reform . The following human rights problems were reported : ... torture and abuse of detainees and other persons by security forces ; impunity of security forces ; denial of right to fair trial ; harsh and life - threatening prison conditions ; prohibition of international monitor access to prisons ; ...","The law prohibits [ cruel , inhumane or degrading treatment or punishment ] , but some security officials used beatings or other forms of coercion to extract confessions during interrogations , although the practice was not systematic . Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture .","...","ORG ( ORG ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions . Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions , but their representatives were limited to administrative or medical sections , and ORG personnel accompanied them . The government did not sign an agreement with ORG ( ICRC ) to allow free and unhindered access to prisons and detention centres , and the ORG 's international monitoring staff has not returned to the country since DATE .","Detainees and inmates described harsh and life - threatening prison conditions , including extreme overcrowding and unsanitary conditions . Disease and hunger were serious problems , but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons . Organizations such as ORG reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor .","...","Victims of police abuse may submit a formal complaint in writing to the officer 's superior or ORG . Most victims chose to remain silent rather than risking retaliation by the authorities .","...","Trials are public , except in cases involving national security . There is a presumption of innocence by law , but in practice defendants were presumed guilty . ... In national security cases , a panel consisting of a presiding judge and CARDINAL ' people 's assessors ' determines the guilt or innocence of the accused . Qualifications of the assessors and how those qualifications are determined are not known , but their role is passive , and the presiding judge dominates the proceedings .","...","Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests . Opposition parties and local observers claimed the government selectively prosecuted political opponents . There was no reliable estimate of the number of political prisoners , but former opposition leaders claimed there were CARDINAL such prisoners held in the country , including former fighters of the ORG . \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-89307","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2008,"docname":"CASE OF BALSYT\u0116-LIDEIKIEN\u0116 v. LITHUANIA","importance":3,"conclusion":"Violation of Art. 6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall","text":["The applicant , PERSON , is a NORP national , who was born in DATE . At present she lives in GPE .","The applicant is the founder and owner of a publishing company \u201c ORG \u201d . Since DATE the company has published \u201c NORP calendar \u201d ( PERSON kalendorius ) , a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors . The calendar could be purchased in bookstores . It was distributed in GPE and among NORP immigrants living abroad .","On DATE a Member of ORG ) distributed a public announcement , stating that the texts published in \u201c NORP calendar CARDINAL \u201d insulted persons of NORP , NORP and NORP origin . The relevant parts of \u201c NORP calendar \u201d read as follows :","[ First page of the calendar ] : \u201c GPE \u2013 the land of the NORP , as each footprint here bears traces of our ORG 's blood \u201d","CARDINAL DATE : \u201c In DATE , on DATE of the restoration of the independence of GPE , a LOC insidiously killed CARDINAL NORP living in NORP district 's GPE \u2013 all the inhabitants of the village were shot . ( ... ) The Nation was informed about the tragedy after TIME during this time NORP [ high society ] were celebrating and enjoying themselves , hugged the NORP president , put flowers [ on the monuments ] to PERSON 's army , drank and danced their ghastly dance on the freshly spilled blood of NORP whose whole village had been murdered . \u201d","CARDINAL DATE : \u201c The new NORP government ( ... ) puts on trial the NORP nation for the extermination of the NORP ( ... ) but is not interested in the genocide of the NORP and dances NORP foxtrots to the music of the PERSON and PERSON . \u201d","CARDINAL DATE : \u201c In DATE in the vicinity of GPE the Polish ORG killed CARDINAL NORP for the sole reason that they were NORP . \u201d","DATE : \u201c The soviet occupying power , with the help of the communist collaborators , among whom , in particular , were many NORP , for DATE ferociously carried out the genocide and colonisation of the NORP nation . \u201d","DATE : \u201c In DATE in ORG and its surrounding area the NORP ORG brutally killed CARDINAL NORP ( ... ) among whom were women , little children , even babies and old people . This was the way the NORP , in war conditions , carried out ethnic cleansing . In the whole territory of GPE [ the members of ORG ] killed CARDINAL , and in the ethnic NORP lands QUANTITY more innocent people , for the sole reason that they were NORP . The ORG events should be regarded as the genocide of the NORP nation . But the NORP authorities [ who associate themselves with the NORP ] ignore obvious facts and do not even attempt to evaluate these war crimes . \u201d","CARDINAL DATE : \u201c Through the blood of our ancestors to the worldwide community of the NORP \u201d","DATE : \u201c In DATE the monument to the victims of the Polish Krajova Army was put up and consecrated in ORG . ( ... ) In DATE in the environs of ORG the Polish ORG plundered and killed innocent people solely because they were NORP . The killings of DATE and DATE are horrible [ acts of ] ethnic cleansing and cruel war crimes that can not be solved by simply constructing a monument to the victims . There is no statutory time - limit on prosecution of war crimes , the war criminals should be identified and tried . ( ... ) \u201d","CARDINAL DATE : \u201c occupying NORP army \u201d , \u201c NORP occupants \u201d","DATE : \u201c The DATE of the Beggars . In DATE ( ... ) about fifty NORP beggars demonstrated in front of the ORG . They were joined by CARDINAL GPE residents . The purpose of this act was to attract the ORG 's and the ORG 's attention to poverty ( ... ) in GPE . Unfortunately , the public gathering of the beggars did not receive any attention from the heads of ORG . At the same time a banquet for the NORP took place in GPE . The banquet cost GPE MONEY . A feast during the plague . ( ... ) The NORP were managing the ORG ; from the tribune of the ORG the NORP were insulting and scolding the NORP nation , asking for NORP blood and NORP property . The majority of the ruling ORG ( ... ) greeted the swearing NORP with standing ovations . \u201d","CARDINAL DATE : \u201c The NORP nation will only survive by being a nationalist nation \u2013 no other way exists ! \u201d","DATE : \u201c In DATE ORG ) of GPE ( ... ) adopted the \u201c CARDINAL \u201d citizenship law , proposed by ORG . The law illegally gave citizenship to occupants and PERSON and the NORP became worthless . \u201d","CARDINAL DATE : \u201c The politicians adopted legislation demonstrating their anti - NORP attitude . This way , the conservative neo - NORP took their revenge on the NORP nation , executing the will of the NORP extremists . \u201d","DATE : \u201c CARDINAL NORP were brutally killed during DATE . DATE passed and on DATE the ORG ( ... ) who took power started new executions against the NORP and the NORP nation , carrying out pro - NORP politics . \u201d","The back cover of \u201c NORP calendar CARDINAL \u201d contained a map of GPE . The neighbouring territories of GPE , GPE and GPE were marked as \u201c ethnic NORP lands under temporary occupation \u201d .","On DATE a Seimas committee requested ORG to investigate whether the publication was compatible with LAW and other legal acts .","On DATE the Prime Minister wrote a letter to ORG , requesting it to examine whether \u201c the contents of ' NORP calendar DATE ' contained the elements of violations of ethnic and racial equality \u201d .","On DATE ORG also received a note from ORG , expressing its dissatisfaction with the publication 's map describing certain territories of GPE as \u201c ethnic NORP lands under temporary occupation \u201d .","On DATE a similar note was received from ORG .","On DATE ORG requested ORG to submit an experts ' opinion as to whether \u201c NORP calendar CARDINAL \u201d promoted ethnic , racial or religious hostility . In this regard the security intelligence authorities requested the experts to examine whether \u201c NORP calendar CARDINAL \u201d contained anti - NORP , anti - NORP , anti - NORP expressions , or assertions of the superiority of NORP vis - \u00e0 - vis other ethnic groups .","On DATE CARDINAL experts , history and political science professors at ORG , found that \u201c NORP calendar CARDINAL \u201d could be characterised as promoting the radical ideology of nationalism , which rejected the idea of the integration of civil society , incited ethnocentrism , contained xenophobic and offensive statements , in particular with regard to the NORP and NORP populations , and promoted territorial claims and national superiority vis - \u00e0 - vis other ethnic groups . The experts nonetheless noted that the calendar did not directly incite violence against the NORP population , nor did it advocate implementing discriminatory policy against this ethnic group .","At DATE the security intelligence authorities seized a number of copies of \u201c NORP calendar CARDINAL \u201d in various bookstores in GPE . The distribution of the publication was stopped .","By a letter of DATE the Prosecutor General informed the Prime Minister that , following the examination of the content of \u201c NORP calendar CARDINAL \u201d , no elements of a criminal offence ( instigation of ethnic or racial hatred ) had been found in the applicant 's releasing of the publication . However , ORG held that in this respect the applicant should have been punished by way of the administrative procedure under LAW , storage and distribution of information materials promoting ethnic , racial or religious hatred ) . He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision . ORG also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court .","On DATE the officers of ORG held that the applicant should be punished by the administrative procedure provided by LAW .","On DATE the FAC found that the applicant had produced CARDINAL copies of \u201c NORP calendar CARDINAL \u201d , CARDINAL of which had been sold . By reference mostly to the experts ' conclusion of DATE , the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of LAW . The ORG imposed an administrative fine in the amount of CARDINAL NORP litai ( LTL ) on the applicant and ordered confiscation of all copies of \u201c NORP calendar CARDINAL \u201d seized in the bookstores .","NORP The court examined the case in the absence of the applicant or her lawyer . It was noted however that she had been duly informed of the date and place of the hearing , but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence . Therefore the court had concluded that the case could be examined without the applicant being present .","The applicant appealed , claiming in particular a violation of LAW . She also argued that she had been tried in absentia .","On DATE ORG quashed the first - instance judgment on the ground that the applicant had been in hospital ORG from DATE to DATE and could not take part in the first - instance hearing . The case was remitted for a fresh examination at first instance .","On DATE a judge of the FAC ordered another expert examination to be carried out . The court requested ORG to form a group of experts representing various fields of social science in order to produce a conclusion on whether \u201c NORP calendar CARDINAL \u201d promoted ethnic , racial or religious hatred , whether it contained anti - NORP , anti - NORP , anti - NORP expressions , or assertions of the superiority of NORP vis - \u00e0 - vis other ethnic groups .","NORP In reply to the court 's decision , CARDINAL separate expert opinions were produced , reflecting the point of view of ORG professors specialising in the following fields : history , psychology , political science and library science .","On DATE the applicant submitted a written request , received by the Vilnius City Second District Court the following day , by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row . The applicant also asked the court to determine the reasons behind the experts ' absence and to sanction them . The court did not grant the applicant 's requests .","On DATE the FAC found that by publishing and distributing \u201c NORP calendar CARDINAL \u201d the applicant had breached LAW . The court imposed an administrative penalty in the form of a warning on her , while the unsold copies of the calendar and the means to produce it were confiscated .","By reference to the conclusions of the experts in the field of political science the court stated that a CARDINAL - sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred . The court also noted that \u201c NORP calendar CARDINAL \u201d had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring GPE , including GPE , GPE and GPE , who had expressed their concerns about the map denoting some of the territories of those countries as \u201c ethnic NORP lands under temporary occupation \u201d . Relying on the conclusion of the bibliographic expert report the GPE City Second ORG noted that the publication did not meet the prescribed standards because , among other things , the calendar contained no indication of the sources and literature that had been used , and the name of the author of each statement in the calendar was not provided . The court concluded that the applicant had prepared , published and distributed the calendar and was therefore responsible for its content .","By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant 's actions had not been deliberate , but reckless . The court relied on the psychological experts ' report that \u201c NORP calendar CARDINAL \u201d represented the personal character , values and emotions of the applicant . The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the NORP population , the superiority of the NORP over other nationals was not emphasised , and the negative statements about the NORP population were not to be seen as anti - NORP . However the GPE City ORG concluded that the psychology experts ' conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law .","The court emphasised that the breach of the administrative law committed by the applicant was not serious , and that it had not caused significant harm to society 's interests . The court also noted the applicant 's disability and absence of previous convictions .","In view of those circumstances and given the negligent nature of the offence , the court decided to impose an administrative warning under LAW , which was a milder administrative penalty than the fine of between LTL CARDINAL,CARDINAL and LTL CARDINAL,CARDINAL prescribed by LAW .","The case was examined in the presence of the applicant and a representative of the security intelligence authorities . The applicant left the hearing in the course thereof . At the hearing she was not represented by a lawyer .","The applicant appealed , claiming in particular that LAW had been violated . She also complained that the first - instance court had not called the experts to the hearing , thereby violating her defence rights .","On DATE ORG reviewed the case under written procedure . The applicant relied on the conclusion of the psychological experts ' report , arguing that \u201c NORP calendar CARDINAL \u201d did not promote hatred against the NORP , NORP or NORP , nor did it claim the superiority of the NORP over other nations . According to the appellate court , these were the conclusions of experts in CARDINAL field only , whereas the rest of the evidence , namely the political science and bibliographical experts ' reports , attested that the comments in the calendar were based on the ideology of extreme nationalism , which rejected the idea of civil society 's integration and endorsed xenophobia , national hatred and territorial claims .","The court disagreed with the applicant 's argument that her defence rights had been violated because the first - instance court had failed to call the experts to have them challenged at the hearing . ORG stated :","\u201c The [ applicant 's ] argument that the [ first - instance ] court violated procedural legal norms because the experts were not present at the court hearing , is not valid . The first- instance court , relying on its inner belief , evaluated the experts ' conclusions both as to their reasonableness and as to their comprehensiveness . LAW provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented . The fact , that this possibility had not been used , can not be regarded as a violation of procedural legal norms . \u201d","Relying on the above arguments , ORG dismissed the appeal .","On an unspecified date the applicant left GPE . She applied for political asylum in GPE . Later the applicant returned to GPE . She lives in GPE .","The LAW of GPE , as relevant in this case , provides as follows :","\u201c Everyone shall have the right to hold opinions and freely express them .","No one may be prevented from seeking , receiving and imparting information and ideas .","Freedom of expression , freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health , dignity , private life , and morals , or for the defence of the constitutional order .","Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national , racial , religious , or social hatred , violence or discrimination , slander or disinformation . \u201d","The Code on Administrative Law Offences ( \u201c the LAW \u201d ) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law .","Article CARDINAL of the LAW provides that all citizens must ensure respect for legal rules and the rights of other citizens . LAW defines an administrative offence as a wrongful act which causes danger to public order , citizens ' rights or the established order of administration .","LAW provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders , educating them to observe the law and preventing them reoffending .","An administrative warning is a penalty under LAW and it can be used to replace a harsher penalty the PERSON prescribes for a particular offence ; the administrative warning is also intended to serve as a preventive measure , in the same way as a suspended sentence in criminal law .","Article CARDINAL of the Code punishes the production , storage and distribution of information material promoting national , racial or religious hatred by a fine of between LTL CARDINAL,CARDINAL and LTL CARDINAL with the confiscation of the material , with or without confiscation of its main means of production .","Article CARDINAL provides that an expert 's conclusion can be considered as evidence . Pursuant to Article CARDINAL , an expert can be appointed when special knowledge is required for solving the case .","Under LAW , a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence , as well as to lodge requests .","Article CARDINAL of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it , a court can substitute the fine with administrative arrest of DATE .","Article CARDINAL of the Law on Administrative Proceedings ( LAP ) , as in force at the material time , provided that , among other procedural rights , the parties were entitled to question other participants in the process , including witnesses and experts , to take part in the examination of evidence and to present explanations .","Under LAW , parties had the right to bring an appeal against a decision of a first - instance court . The appeal should indicate , among other things , evidence to support its grounds .","LAW stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing . Upon the decision of the chamber of judges , an oral hearing of a specific case could be held .","Article CARDINAL of LAW , in force in GPE since DATE , provides :","\u201c Any advocacy of national , racial or religious hatred that constitutes incitement to discrimination , hostility or violence shall be prohibited by law \u201d .","LAW , ratified by GPE on DATE , provides , insofar as relevant , as follows :","\u201c CARDINAL . In this Convention , the term \u201c racial discrimination \u201d shall mean any distinction , exclusion , restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life . \u201d","\u201c CARDINAL . GPE Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races , and , to this end :","...","( d ) Each State Party shall prohibit and bring to an end , by all appropriate means , including legislation as required by circumstances , racial discrimination by any persons , group or organization ... \u201d","\u201c GPE Parties particularly condemn racial segregation and apartheid and undertake to prevent , prohibit and eradicate all practices of this nature in territories under their jurisdiction . \u201d","\u201c GPE Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of CARDINAL race or group of persons of CARDINAL colour or ethnic origin , or which attempt to justify or promote racial hatred and discrimination in any form , and undertake to adopt immediate and positive measures designed to eradicate all incitement to , or acts of , such discrimination and , to this end , with due regard to the principles embodied in LAW and the rights expressly set forth in LAW , inter alia :","( a ) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred , incitement to racial discrimination , as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... \u201d","According to LAW , signed within the framework of ORG and in force in GPE since DATE :","\u201c The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination , hostility or violence as a result of their ethnic , cultural , linguistic or religious identity . \u201d","ORG against Racism and Intolerance General Policy , in its Recommendation no . CARDINAL : Combating racism , xenophobia , anti - Semitism and intolerance , recommends that the Governments of the member States , insofar as relevant , \u201c ensure that national criminal , civil and administrative law expressly and specifically counter racism , xenophobia , anti - Semitism and intolerance \u201d .","Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG on \u201c Hate speech \u201d , drafted within the framework of ORG , provides , insofar as relevant , as follows :","\u201c The principles set out hereafter apply to hate speech , in particular hate speech disseminated through the media .","For the purposes of the application of these principles , the term \u201c hate speech \u201d shall be understood as covering all forms of expression which spread , incite , promote or justify racial hatred , xenophobia , antisemitism or other forms of hatred based on intolerance , including : intolerance expressed by aggressive nationalism and ethnocentrism , discrimination and hostility against minorities , migrants and people of immigrant origin . \u201d","\u201c The governments of the member states should establish or maintain a sound legal framework consisting of civil , criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others . \u201d","\u201c The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non - arbitrary manner on the basis of objective criteria . Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control . This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others . \u201d","\u201c National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by LAW to other forms of expression . This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the LAW or at their limitation to a greater extent than provided therein . \u201d","\u201c National law and practice should allow the competent prosecution authorities to give special attention , as far as their discretion permits , to cases involving hate speech . In this regard , these authorities should , in particular , give careful consideration to the suspect 's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom . The competent courts should , when imposing criminal sanctions on persons convicted of hate speech offences , ensure strict respect for the principle of proportionality . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87232","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2008,"docname":"MANITARAS AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants ( first applicant : Mr PERSON ; second applicant : Mr PERSON ; third applicant : Mr PERSON ; fourth applicant : PERSON PERSON ; fifth applicant : PERSON ; sixth applicant : PERSON ) are CARDINAL NORP nationals of NORP origin who were born in DATE , DATE , DATE , DATE , DATE and DATE respectively . The second applicant is living in Meneou and the third , fourth and fifth applicants are living in Paralimni . The first and sixth applicants have dual NORP and NORP nationality and live in GPE .","NORP The applicants brought their application on their own behalf and on behalf of PERSON , a NORP national of NORP origin who was born in DATE and died on DATE . The first , second , third , fourth and fifth applicants are the children of PERSON , and the sixth applicant is his grandson .","The applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , Mr PERSON GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","PERSON was born and raised in the village of GPE in the NORP peninsula , district of GPE , in northern GPE . He worked there as a farmer and owned a house with some land .","Following the NORP intervention of DATE , PERSON remained in GPE as one of the \u201c enclaved \u201d , that is , a small remaining group of NORP residents of the NORP peninsula who continue to live there under NORP occupation . In DATE he gave evidence to the delegation of ORG in the course of the GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-IV ) proceedings at a hearing held at FAC in GPE .","On DATE PERSON was found dead in his house in GPE .","On DATE a post - mortem examination was carried out by Dr Horoz , a general practitioner authorised by the local authorities . He concluded that PERSON had died of a myocardial infection . Consequently , a press statement was issued by ORG of GPE ( \u201c the GPE \u201d ) confirming the findings of this report . A medical officer from ORG in GPE ( ORG ) was present at the post - mortem examination . He also prepared a brief report , without referring to the cause of death .","The applicants allege that they were unable to bury the deceased in his home village because of restrictions on freedom of worship and repeated vandalism of NORP graves . Thus they arranged for him to be buried in the southern part of GPE . They allege that the body was handed over to them in a particularly distressing and disrespectful manner and that the NORP authorities showed a total lack of regard for the grieving family . In particular , they state that when it was delivered to them , the deceased \u2019s body was partially covered in an old sheet and was not in a temporary coffin or body bag . Further , the sixth applicant , the grandson of the deceased , was refused permission to accompany the first , second and third applicants ( that is , his father and CARDINAL uncles ) to GPE village on DATE for a brief visit to retrieve the clothes of PERSON and other things necessary for the funeral and burial .","On DATE a second post - mortem examination was conducted in ORG in GPE by CARDINAL specialists , PERSON and PERSON ( one appointed by the family of PERSON and one by ORG ) , in the presence of ORG observers . A video and photographs were taken during the autopsy . The conclusions of these examinations were that there was \u201c no evidence of coronary artery thrombosis , myocardial infarction or significant previous ischemic episodes \u201d and that the cause of death was \u201c severe trauma in the cervical vertebra due to the application of excessive force \u201d .","At the request of the Attorney General of GPE , the reports of both post - mortem examinations were reviewed by Professor PERSON , State Forensic Pathologist at ORG at ORG . He agreed with the conclusions of the second post - mortem report and criticised the first as not living up to international standards .","On DATE the file was referred to the \u201c TRNC \u201d Attorney - General , who recommended a coroner \u2019s inquest . The coroner examined the file and came to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence . In view of the above , the coroner decided that it was not necessary to carry out an inquest .","Before the ORG , the Government produced a report from Dr PERSON Cassidy , Deputy State Pathologist and Senior Lecturer at ORG . At the request of the ORG , PERSON examined various documents , scientific reports , videos and photographs concerning the death of PERSON . She also interviewed all persons who could give information about the case , including the members of the deceased \u2019s family .","Paragraphs CARDINAL , CARDINAL and CARDINAL of Dr PERSON \u2019s report read as follows :","\u201c CARDINAL . Summary","CARDINAL Mr PERSON was an elderly NORP , residing alone in the NORP region .","CARDINAL He was receiving treatment for heart disease and had been hospitalised for a \u201c heart attack \u201d and for treatment of an arrhythmia .","CARDINAL He was at his neighbour \u2019s home on TIME CARDINAL and was said to have been seen and spoken to early on DATE .","CARDINAL NORP In the mid DATE TIME PERSON was found dead lying on the floor of his bedroom .","CARDINAL NORP He was fully clothed , including jacket , apart from his shoes . He was lying face down and on his right side . There was a pool of fluid and blood at his head . There were a few injuries on the right side of head .","CARDINAL His body was removed to the local hospital and a post - mortem examination was carried out on DATE . This was limited to removal of the cerebral hemispheres , the lungs and the heart . The latter only was dissected .","CARDINAL ORG examination showed bruising around both eyes and CARDINAL injuries to the right side of the head . Post mortem staining was noted over the back and multiple \u201c bruises \u201d over the upper chest .","CARDINAL NORP An area of discoloration on the heart was interpreted as an infarct , and the cause of death was determined as due to a heart attack .","CARDINAL NORP The body was transported to the NORP region and a second post - mortem examination was carried out .","CARDINAL NORP This described additional injuries including superficial flapped injury to the left side of the scalp , marks on the cheeks and lips as well as minor injuries on the hands . PERSON haemorrhage was noted in the eyes .","CARDINAL NORP Internally the most significant finding was of bruising in the soft tissues of the neck and a fracture of the spine .","CARDINAL These injuries were interpreted as indicating an assault , death being due to a broken neck , caused in an arm lock , which was thought to have caused asphyxia . Other explanations were dismissed .","CARDINAL The photographs of the scene and the body pre - autopsy , after the first autopsy and during the second autopsy were taken .","CARDINAL The body is seen fully clothed , apart from shoes lying on his right side , face down on a stone floor . A few minor injuries were noted on the right side of the head and there was fluid and blood under the head apparently from the injuries .","CARDINAL ORG after the first post mortem confirm the paucity of injuries .","CARDINAL ORG of the second post mortem now show well developed bruising of the eyes and petechiae are now prominent around the eyes , the neck and over the upper chest . A post mortem injury is now apparent on the left side of the scalp and some other indistinct marks are shown . There was definite bruising under the injuries on the right side of the scalp but no skull or brain injury .","CARDINAL NORP Internally a fracture of the cervical vertebra is demonstrated .","Interpretation","CARDINAL NORP This elderly man was found dead in his home .","CARDINAL LOC position of the body at the scene is consistent with slumping forward onto the ground from a sitting position on the bed , no attempt being made to save himself , as determined by the position of the hands .","CARDINAL The injuries apparent were to the right side of face and head , consistent with impact with the stone ground .","CARDINAL NORP Despite lying in this position after death , when the body is examined later , at the second post - mortem , lividity is on the back of the body , therefore he had not been lying long after death . This would be consistent with him dying on DATE TIME and therefore he could have been seen alive at TIME .","CARDINAL NORP The position of the body also suggests sudden collapse .","CARDINAL LOC haemorrhage are seen around the eyes , on the face , neck and upper chest . The presence of petechial haemorrhages indicates hypoxia \/ asphyxia , and obvious causes of mechanical asphyxia must be excluded , particularly strangulation . However , petechial haemorrhage around the eyes are commonly seen in deaths from natural causes , particularly if due to heart disease which causes hypoxia . ORG \/ purpuric haemorrhage are also commonly found within areas of post - mortem lividity and as Mr PERSON was found lying \u201c face down \u201d this is CARDINAL possibility which must be considered .","The pattern of distribution of the haemorrhage may give some indication of their cause . In strangulation the haemorrhages are above the level of compression of the neck .","As the distribution of the haemorrhages continues below the neck , a cause other than compression of the neck must be considered .","In cases of suspected neck compression , the neck is always examined last , first draining the area of blood by opening and removing the organs from the cranial and chest and abdominal cavities . This is done as artefactual haemorrhages can be produced in the neck area during manipulation and dissection of the neck organs . Therefore the interpretation of bruising in the anterior compartment of the neck , on the surface of the strap muscles , is fraught with potential difficulties . A post - mortem examination had been performed , the blood vessels in that area are seen to be congested , the neck was said to have been manipulated before the second post mortem and at the second post mortem the neck was dissected with the chest organs in situ . In view of this the bruising can not be unequivocally attributed to pre - mortem compression of the neck .","CARDINAL NORP The injuries to the face are concentrated on the right side , as illustrated in photograph CARDINAL . This was the side of the face in contact with the ground , and therefore all of these injuries could be caused by CARDINAL impact with the ground . The soft tissues of the face were not dissected and therefore the other injuries described were not proven to be associated with subcutaneous bruising .","The pattern of bruising under the eye is of bruising related to the injury below the outer corner , which is an abrasion injury , more likely due to contact with the ground rather than a punch .","While one can never totally exclude that each and every injury is due to a separate impact , the pattern of injuries is the key factor .","CARDINAL One positive finding was fracture of the first cervical vertebra . There was haemorrhage over the front of the upper cervical spine indicating bleeding from this injury . Bodies can bruise and bleed after death , while the blood is still fluid within the vessels . This injury can therefore be interpreted as a pre or peri - mortem injury . This type of injury is due to compression of the head on the neck splitting the vertebra , + \/- hyperextension . The mechanism of causation is a force transmitted through the head to the neck .","It is unlikely to be caused by a force from the front of the neck as such a force would be expected to be associated with more severe injury to the structures at the front of the neck .","If such an injury was the cause of death , damage to the upper cervical cord \/ brain stem would be expected . Firstly this area was damaged during the first post - mortem . Secondly there is no evidence of bleeding around the site in the photographs and no demonstrable damage . Microscopy may show haemorrhage into the tissue , which must be differentiated from congested vessels which can be misinterpreted as petechial haemorrhage . There is no evidence that the spine fracture had caused damage to the spinal cord nor that it caused his death .","QUANTITY The injuries to the hands are minor injuries , described as , and with the appearance in the photographs of , abrasions and lacerations . There are quite different injuries to those on the head area . These injuries are caused by contact with something rough or sharp , and while from their position they could be interpreted as defence injuries , as they are different and caused in a different manner from other injuries , they are not defence injuries caused by attempting to ward off blows of his head . CARDINAL explanation is that these injuries could be inflicted by handling branches with rough or sharp edges .","CARDINAL Examination of the heart was incomplete at both post - mortems . Weighing the heart would have given an indication as to whether or not the heart was enlarged . However Mr GPE had a well documented history of heart problems including arithymia and cardiac failure , and was prescribed treatment for this .","Whether or not he was taking his medication , he was still at risk from collapsing and dying from his heart disease , despite no obstruction of the vessels being found at the second post - mortem .","Again the post - mortem findings must be interpreted in light of his medical history . Again histological examination of the tissues may show myocyte damage and fibrosis not obvious with the naked eye . In particular the area of discoloration described at the first post - mortem could have been proved or disproved as an infarct . The lack of acute findings in the heart does not negate the conclusion that death was due to heart disease .","CARDINAL Although he may have collapsed suddenly , PERSON may not have died instantly and may have survived unconscious for TIME .","Summary","After examination of the statements , reports , photographs and post - mortem reports I am of the opinion that PERSON appears to have been sitting on the edge of his bed when he suddenly keeled over , with a \u201c heart attack \u201d , falling heavily to the floor , the impact site , to the head and right side of the face . The force from the impact was transmitted across the head to the top of the spine , crushing and splitting the first cervical vertebra . He appears to have made no attempt to save himself as implied by the position of the hands and arms , suggesting that he was either dead or unconscious when he pitched forward to the ground . The injuries to the hands could have occurred separately during the course of his work . Death appears to be due to natural causes . \u201d","In a letter of CARDINAL DATE , Inspector PERSON from ORG ( ORG ) forwarded PERSON report to the competent authorities . This letter reads as follows :","\u201c Please find enclosed a copy of the report prepared for ORG by an independent Forensic Pathologist .","We are in agreement with the conclusions reached by PERSON . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99949","languageisocode":"ENG","respondent":"GEO","branch":"ADMISSIBILITY","date":2010,"docname":"TEIMURAZ ANDRONIKASHVILI v. GEORGIA","importance":3,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , Mr PERSON and PERSON PERSON GPE , lawyers practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant 's father , a member of the NORP aristocracy , was deprived of his land and other assets by ORG during DATE and DATE .","On DATE the applicant brought an action against the relevant local authority , seeking restitution of his ancestral lands . In support of his claim , the applicant submitted archives confirming his father 's title to the claimed land and , as a legal basis , referred to general rules on the protection of property and inheritance contained in LAW , the LAW and the international human - rights treaties ratified by GPE . The action was registered by ORG on DATE .","According to the file as it stands at present , the restitution proceedings are still pending at first instance ; no hearing has been held so far .","Article CARDINAL of the Civil Code bearing on the protection of ownership reads as follows :","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL","\u201c CARDINAL . The owner can claim the asset back from the possessor unless the latter is entitled to possess it .","In the event of interference with the exercise of ownership other than the taking of the asset , the owner may request the trespasser to put an end to such an action . If the interference persists , the owner may bring a court action against the trespasser . \u201d","By passing the LAW of DATE , ORG recognised that NORP nationals were subjected to political persecution by GPE DATE and DATE , entitling the victims to seek rehabilitation .","The LAW defined the notion of a victim of political persecution and created a procedure by which to obtain that status . In particular , section CARDINAL of the LAW provided that only a court could declare a person to be a victim . Section CARDINAL specified that the next of kin of a direct victim was also entitled to seek rehabilitation .","Section CARDINAL ( CARDINAL ) and ( CARDINAL ) stated that , once recognised as a victim of political repression , the person in question would automatically have his or her political and civil rights reinstated . This excluded the reinstatement of any property rights , in so far as subsection CARDINAL of the same section specified that \u201c the means for the restitution of property of victims of political repression shall be governed by a separate LAW \u201d .","No act concerning the restitution of property of victims of NORP repression has yet been passed .","In a decision of DATE , the ORG reinstated the ownership rights of the claimant PERSON over her late parents ' land expropriated by GPE in DATE . PERSON had previously been recognised as a victim of NORP repression within the meaning of LAW of DATE .","Likewise , in a decision of the Krtsanisi - Mtatsminda District Court in GPE of DATE , PERSON and PERSON , the claimants , were declared the owners of assets once belonging to their ancestors who had been recognised as victims of NORP repression .","Another similar case was that of Mr PERSON , who , in a decision of CARDINAL DATE of ORG , was granted title to land expropriated from his grandfather by GPE in DATE and DATE . The only difference between this and the CARDINAL above - mentioned cases was that , prior to the restitution of the property , neither Mr ORG , the claimant , nor any of his ancestors had been recognised as victims of GPE within the meaning of LAW of DATE .","In all CARDINAL above - mentioned cases , the claimants were excused from having missed the statutory time - limit for recovery of property , in view of the fact that the expropriation of their ancestors ' property had been carried out by force and the respondents were either private persons or public agencies . The domestic courts ' reasons underlying their decisions to allow restitution were based on the general principles of protection of property and the inheritance rules contained in LAW , the LAW and international human - rights treaties . Certain other general principles of law , such as equity , were also relied on .","As acknowledged by the President of ORG in his foreword to its ORG , CARDINAL of the problems of the NORP judiciary was the lack of consistent case - law on similar disputes . Consequently , ORG deemed it necessary , for the purposes of harmonising judicial practice , to advise the lower courts on how certain types of dispute should be resolved . The President noted that the ORG were not of a mandatory nature but emphasised their significance .","LAW of the ORG advised the courts that they should declare claims for restitution of property expropriated by GPE in DATE and DATE admissible but refuse them on the merits in view of the absence of a right to restitution under NORP law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100141","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF ABDOLKHANI AND KARIMNIA v. TURKEY (no. 2)","importance":4,"conclusion":"Violation of Art. 3","judges":"Fran\u00e7oise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants were born in DATE and DATE respectively . The first applicant resides in GPE whereas the second applicant lives in GPE .","The applicants , refugees under the mandate of the ORG High Commissioner for Refugees ( ORG ) , arrived in GPE on an unspecified date . They were arrested by security forces and , as they had entered NORP territory illegally , were deported back to GPE on DATE .","The applicants immediately re - entered GPE .","On DATE they were arrested by road checkpoint gendarmerie officers from the GPE gendarme station , in GPE , as their passports were found to be false .","The applicants were subsequently placed in the police headquarters in the LOC district of GPE .","On DATE the applicants lodged an application with the ORG and requested not to be deported to GPE or GPE ( application no . CARDINAL ) . On DATE the President of the ORG to which the case was allocated decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of GPE , under LAW , that the applicants should not be deported to GPE or GPE until DATE . On DATE the President of the ORG decided to extend until further notice the interim measure indicated under LAW .","DATE and DATE the applicants were detained at the LOC police headquarters . On DATE the applicants were transferred to the K\u0131rklareli Foreigners ' Admission and Accommodation Centre , where they were held until DATE .","The applicants submitted that the detention facility where they were held was in the basement of the building . Therefore , it was damp and received insufficient natural light . The facility measured QUANTITY in total and consisted of CARDINAL open rooms . The rooms measured QUANTITY . There was CARDINAL bathroom and a hallway , where there were CARDINAL beds . There were CARDINAL and CARDINAL bunk beds in the first and the second rooms respectively . The third room was empty .","For DATE of the detention the applicants were held with CARDINAL other detainees . From DATE of their detention the number of detainees dropped to CARDINAL . During DATE those remaining were also deported . At the end of their detention in GPE the applicants were alone in the facility .","The mattresses and blankets were dirty and infested with lice . No pillows or bedding were provided . During DATE of their detention , the applicants had to sleep on the floor without mattresses , with blankets only , due to the overcrowding . The facility did not have showers or hot water . The applicants were taken to a public bathhouse only twice during DATE that they spent in that facility . Nor were they provided with towels , toilet paper , toothbrush , toothpaste , shaving items or shampoo . The toilets were very dirty and were never cleaned . Nor did the administration provide proper cleaning material to the detainees for them to do the cleaning . The facility was infected with cockroaches and mosquitoes . As a result of the poor detention conditions , the applicants suffered from dermatological diseases and infections . They were taken to a doctor for the skin problems , but they were never given the prescribed medication . They were ill as a result of water contamination at the beginning of their detention in GPE . Furthermore , the first applicant suffered from arthritis and the second applicant had back problems . They did not receive any medical check - ups for their health problems . The applicants were provided with meals twice a day . The meals consisted of soup and an insufficient amount of bread . They were not given any drinkable water . They were also not provided with clothing . Therefore , they had to wear the same clothes for DATE .","NORP The detention facility did not have any provision for indoor or outdoor activities . The applicants were taken out only when they were forced to do work , such as collecting rubbish , watering the lawn , sweeping the floors and the stairs , or loading and unloading , for which they were never paid .","Finally , throughout their detention in the LOC police headquarters , the applicants were not allowed to make or receive telephone calls . Nor could they have visits , except for one visit from a ORG officer . At the request of the ORG office , a lawyer went to the GPE police headquarters to visit the applicants . He was however not allowed to meet the applicants .","The applicants submitted several written complaints regarding the conditions of their detention . However , the authorities refused to accept the letters containing their complaints .","The Government submitted that the applicants were held in the LOC police headquarters building DATE and DATE on a temporary basis while awaiting transfer to a foreigners ' admission and accommodation centre . The Government noted that during the period in question a total of CARDINAL foreigners stayed in the facility . However , CARDINAL persons were detained at any given time . Besides , DATE and DATE the applicants were held alone .","The Government further submitted that a foreigners ' guesthouse had been constructed in LOC subsequent to the applicants ' transfer to GPE foreigners ' admission and accommodation centre . According to the ORG 's submissions , in this new facility the food is provided CARDINAL times a day by the centre administration . Although there is no health clinic within the facility , the detainees are provided with adequate medical assistance in the nearby clinics and ORG hospitals . They are allowed to go into the open air and can exercise in the garden of the facility , where they are served their meals and play football with the staff working at the centre . The Government contended that lavatories , toilets and bathrooms were provided in the centre and the immigrants were sent to the NORP bath periodically . They finally noted that the applicants could contact the outside world by telephone and internet .","In their submissions dated CARDINAL DATE the applicants complained about the conditions of detention in the ORG Admission and ORG . They complained in particular about the quality of food and water , insufficient medical support , unsatisfactory sanitary facilities , their inability to take exercise and the increase in the number of detainees held in the ORG Admission and ORG . In support of their allegations the applicants submitted a number of photos , including CARDINAL photos which were taken on DATE and which allegedly showed the back and legs of the first applicant who claimed to be suffering from a skin rash .","The Government submitted that the application concerned the conditions of detention at the LOC police headquarters and not those in the K\u0131rklareli Foreigners ' Admission and Accommodation Centre . They therefore requested the ORG not to examine the application in so far as it concerned complaints regarding the detention conditions at the ORG .","A description of the relevant law can be found in the judgments of NORP v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 DATE , DATE ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58233","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1998,"docname":"CASE OF ERKALO v. THE NETHERLANDS","importance":3,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 5-4;Not necessary to examine Art. 13+5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings","judges":"R. Pekkanen","text":["The applicant is an NORP national born in DATE .","The applicant was convicted on CARDINAL counts of manslaughter by ORG ( arrondissementsrechtbank ) on DATE . He had broken into the homes of CARDINAL elderly ladies whom he had strangled to death , both these incidents taking place within the space of DATE .","The applicant was sentenced to DATE imprisonment ( with deduction of the period spent in detention on remand ) and placement at the disposal of the government ( terbeschikkingstelling ) with committal to a psychiatric institution . Although the period of placement at such an institution does not usually begin until the date on which the person concerned is eligible for DATE which in the present case would have been DATE due to his disturbed mental state the authorities decided to commence the applicant \u2019s treatment prior to DATE ( LAW CARDINAL of the Prisons Ordinance \u2013 Gevangenismaatregel \u2013 see paragraph CARDINAL below ) . Accordingly , the applicant was placed at the disposal of the government in a psychiatric institution for a DATE period commencing DATE ( see paragraph DATE below ) .","According to Article CARDINALo \u00a7 CARDINAL of LAW ( PERSON , hereinafter referred to as \u201c ORG \u201d ) , a request for the extension of a placement order must be made by the public prosecutor not DATE before the expiry of the previous period of placement ( see paragraph CARDINAL below ) . DATE for making such a request in the present case was therefore DATE . A letter to this effect was sent by the ORG Secretary of ORG to the public prosecutor on CARDINAL DATE , the latter having received on CARDINAL DATE the recommendations of the psychiatric institution where the applicant was being treated regarding the prolongation of his period of placement ( see paragraph CARDINAL below ) .","On DATE the public prosecutor prepared a request for a DATE extension of the applicant 's placement . The applicant was informed of this fact by letter of DATE ( see paragraph CARDINAL below ) , which he received in person on DATE . The applicant was also informed that during the judicial examination of the request he could be represented by counsel . The request prepared by the public prosecutor , however , did not arrive at that time at the registry of ORG of Groningen but was , apparently by mistake , placed in the archives of the court .","DATE after receiving the letter of the public prosecutor , the applicant alerted the staff in the psychiatric institution to the fact that he had not received any further information regarding the extension of his placement . The request of the public prosecutor was found in the archives of the court on DATE , and was received at the court 's registry on DATE . On DATE the psychiatric institution submitted additional observations concerning its recommendation to extend the hospital order .","In the proceedings regarding the extension of his placement , the applicant asked ORG to declare the public prosecutor 's request inadmissible on the ground that both LAW of the ORG and LAW had been violated . The public prosecutor submitted an explanation in writing as to the reasons why the request had not been lodged in time arguing that the request should not be declared inadmissible .","ORG examined the application on DATE . In its decision of DATE , the court rejected the applicant 's objections and extended his placement at the government \u2019s disposal for DATE . Pursuant to LAW ORG ( see paragraph CARDINAL below ) no appeal lay against this decision , as it concerned a first extension not exceeding DATE .","In its decision ORG stated as follows :","\u201c CARDINAL . It appears from the contents of the relevant documents that the request for an extension of the placement at the disposal of the government should have been submitted not DATE . According to the stamp indicating the receipt , the request was not received and registered at the registry of ORG until DATE .","The Code of Criminal Procedure does not indicate any consequences of a failure to observe the time - limit contained in LAW . However , in view of the wording of the provision and its legal history , the ORG is of the opinion that failure to observe the said time - limit should in principle result in the inadmissibility of the public prosecutor 's application . This conclusion can be drawn from the fact that failure to respect this procedural provision is not in conformity with the proper administration of justice .","However , in some cases special circumstances might exist which would justify a departure from that principle . The ORG considers that such special circumstances are present in this case .","The provision referred to has a specific procedural significance and aims at letting the judge examine periodically whether an extension of the judicial measure is necessary . Indirectly the provision also protects the interests of the person placed at the government 's disposal since it ensures that this person will know in good time whether or not there will be a request for an extension . In the present case the interests of that person were not prejudiced since the request was notified to him in person on DATE . He has therefore been able to obtain legal assistance in time and he has not been left in any doubt as to the intentions of the public prosecutor for an unnecessarily protracted period .","It remains to be examined whether the failure to comply with the time - limit has been prejudicial to the fairness of the proceedings . In considering this question , the ORG must have regard , inter alia , to the fact that the placement at the disposal of the government remains in force as long as there is no final decision on the request . Although there has been a failure to comply with the time - limit for requesting the extension , it does not follow that the deprivation of liberty is unlawful .","In substance , there has not been a failure to respect the time - limit within which the request must be made . The public prosecutor prepared a request for an extension in time and he communicated it DATE to the person placed at the government 's disposal .","Because of circumstances , which have been further explained in the written memorial of the public prosecutor , it was not possible , however , for the ORG to decide earlier on this request , which had been prepared in time . It is not possible to consider this a flagrant violation of the procedural provisions . The public prosecutor may only be reproached for the fact that the request did not arrive at the registry of this ORG in time , which means that the request was only formally submitted too late .","Moreover an evaluation must be made of the various interests involved in the sense that the interest of the person placed at the government 's disposal in having the violated legal provision respected must be weighed against the general interest which might be harmed by a decision which would lead to the termination of the placement at the disposal of the government .","The Court considers that , in view of the circumstances set out below , the latter interest must prevail .","The measure was originally imposed because of CARDINAL acts of manslaughter . The above - mentioned opinions of the institution quite clearly refer to the necessity of prolonging this coercive measure . The risk of further criminal behaviour is considered still to be present to the same degree , since the person concerned can still not appreciate the vulnerability of his personality . The supplementary opinion regarding the extension repeats this conclusion and also mentions an incident in which violence took place between the person concerned and another person held in the institution . On this occasion he lost his senses for a short while and it was necessary to isolate him for some time in his room . \u201d","ORG has since extended the applicant \u2019s placement twice .","Article CARDINAL of the Criminal Code makes manslaughter a crime punishable by a term of imprisonment not exceeding DATE or a fine not exceeding MONEY ( NLG ) .","A person who has been found guilty of certain serious crimes and who , at the time of committing an offence , suffered from a mental deficiency or derangement may be placed at the government \u2019s disposal if required in the interests of the safety of others or more generally in the interests of the safety of persons or goods . Such a measure , which is not considered a punishment , may be imposed instead of or together with a prison sentence ( Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW ) . The sentencing court may further decide that the person concerned shall receive psychiatric treatment at the government \u2019s expense ( Article CARDINALb ) .","A person sentenced to a term of imprisonment may , by order of the Minister of ORG , be made to serve his sentence in an institution for the treatment of persons placed at the disposal of the government if such a course is indicated by his or her impaired mental development or a mental disturbance ( LAW and LAW ) .","According to Article PERSON of LAW a person shall be placed at the disposal of the government for an initial period of DATE which may be extended , at the request of the public prosecutor , for a further period of CARDINAL or DATE . The period of placement can not be extended beyond a total of DATE unless the crime committed by the person concerned was a crime of violence committed against , or causing danger to , CARDINAL or more persons or such further extension is necessary for the protection of other persons ( Article PERSON ) .","The provisions relating to the extension of the placement at the disposal of the government are laid down in ORG CARDINALo to CARDINAL of the ORG .","Article CARDINALo \u00a7 CARDINAL provides :","\u201c The public prosecutor \u2019s office ( openbaar ministerie ) may submit a request ( vordering ) for the prolongation of the placement at the government \u2019s disposal no sooner than DATE and DATE before the time at which the placement order is due to expire . \u201d","The request must be accompanied by a recent recommendation prepared by the institution in which the patient is being treated ( LAW ) . In accordance with the provisions of LAW , the person concerned must be given a copy of the request as soon as possible .","NORP The court competent to decide on such a request is ORG that tried the person concerned at first instance for the crime that gave rise to the placement ( Article CARDINALp ) .","Pursuant to LAW , if a request for the extension of the placement is submitted to ORG , the initial placement order shall remain in force until the decision of the court is rendered . If the request is granted after the date on which the placement would have expired had no request for prolongation been submitted , the new period of placement is nonetheless considered to have commenced as from DATE .","ORG must immediately set a date for the examination of the case , and the person concerned must be informed promptly of this date ( Article LAW . The decision of ORG must be rendered as soon as possible , but DATE from the date on which the request was lodged ( LAW ) . The court may , however , exceed this time - limit if it wishes to consider refusing the request \u2013 thus terminating the measure \u2013 and if it needs more information as to the way in which the person concerned might be released back into society . In such a case , the court has DATE to render its decision ( Article CARDINAL t \u00a7 CARDINAL ) . ORG decision shall be reasoned . If it decides to prolong the placement order , the decision must be pronounced publicly ( LAW ) .","Both the public prosecutor and the person concerned may lodge an appeal with ORG ( Gerechtshof ) of GPE within DATE of the service of the judgment given by ORG . However , this provision rules out an appeal in regard to the first decision to extend the placement for DATE ( Article CARDINALv ) .","There is no express provision requiring the release of the person concerned if the time - limits laid down by ORG CARDINALo \u00a7 CARDINAL and CARDINAL t \u00a7 \u00a7 CARDINAL and CARDINAL are not complied with , nor does the ORG impose any sanctions on exceeding these time - limits .","According to GPE case - law summary civil proceedings ( kort geding ) may be instituted in cases where a person placed at the disposal of the government wishes to obtain a court judgment on the lawfulness of his detention . However , in a case which was brought before the President of ORG of the Hague , a request for the termination of the applicant \u2019s placement was rejected , inter alia , in view of the fact that the court competent to decide on the extension of the placement would be dealing with the matter DATE ( decision of CARDINAL DATE , published in GPE DATE , pp . CARDINAL ) .","The date on which the registry of ORG concerned receives the request for extension is considered as the date of submission ( ORG of GPE , decision of DATE , published in GPE DATE , pp . CARDINAL ) .","According to a judgment of ORG ) of DATE ( PERSON ( GPE ) DATE , no . CARDINAL ) a placement order remains lawful even if the decision to extend it exceeds the time - limit now laid down by LAW ORG .","In a judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) , ORG ) held that only in certain circumstances would the ORG be obliged to terminate a placement order after its statutory period had expired and no decision as to its extension had been taken . In order to determine whether such an obligation existed , the court should have regard to the extent to which the statutory time - limit had been exceeded , the reasons for which the time - limit had not been complied with and the personal and societal interests involved .","In a more recent case , it was also held that the time - limit referred to in Article CARDINALo \u00a7 CARDINAL of the ORG was not of an absolute nature . On DATE , in a case where this time - limit had been exceeded , ORG ) found that in light of LAW the placement order had remained lawful even though the public prosecutor had lodged the request for extension DATE after the date on which it should have been submitted to the registry of ORG ( GPE DATE , no . CARDINAL ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76449","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2006,"docname":"CASE OF JACZKO v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant brought an action against his ex - wife , seeking the division of their matrimonial property .","In the period DATE and DATE , QUANTITY hearings took place and the opinions of valuation experts were obtained .","Further hearings took place on DATE , DATE and DATE , DATE and DATE . Meanwhile , the expert was invited to submit a new opinion and to complete it subsequently .","On DATE ORG ordered the applicant to pay MONEY ( ORG ) to his ex - wife .","On appeal , ORG , on DATE , quashed parts of the appealed judgment and remitted those parts to ORG . Furthermore , it fixed the parties\u2019 respective shares of the property .","On DATE , on the applicant \u2019s petition for review , ORG quashed the second - instance judgment concerning the establishment of the parties\u2019 property shares . Accordingly , this part of the case was also remitted to ORG .","In the resumed proceedings , ORG held hearings on DATE , CARDINAL DATE and DATE ; it also appointed another expert . On DATE the applicant \u2019s motion for bias was dismissed .","Further hearings took place on DATE , DATE and DATE . An on - site inspection scheduled for DATE had to be postponed , because the applicant did not agree to the defendant \u2019s personal attendance . A new opinion was submitted by the expert on DATE .","Another hearing was held on DATE . The next one scheduled for DATE was postponed at the applicant \u2019s request to CARDINAL DATE .","On DATE ORG fixed the parties\u2019 respective shares in a real - estate of common ownership , granted ownership of it to the applicant and ordered him to pay compensation and unrealised rent to his ex - wife . The court relied on documentary evidence , the testimonies of the parties and the opinions of CARDINAL expert architects . On DATE the applicant appealed .","An appeal hearing took place on DATE . On DATE the appellate court appointed an expert , who submitted his opinion on DATE .","On DATE ORG increased the amount of compensation to be paid by the applicant . It further quashed the part of ORG judgment which concerned the unrealised rent and discontinued the proceedings in this regard . The judgment acquired legal force .","On DATE the applicant filed a petition for review , alleging that the final decision was unfounded and at variance with the relevant substantive law .","In a preliminary examination under section CARDINAL of the Code of Civil Procedure , on CARDINAL DATE ORG refused to deal with the merits of the petition . It applied section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure , as in force in the relevant period , according to which a review of substantive unlawfulness of final decisions was only admissible if a review was considered necessary from the perspective of harmonising or developing the application of the law .","On DATE ORG dismissed the applicant \u2019s request to have the final decision rectified . It held that , in essence , the request was aimed at challenging certain provisions of the final decision which constituted res iudicata and was thus incompatible ratione materiae with the procedural rules concerning the rectification of decisions ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109741","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2012,"docname":"CASE OF C.A.S. AND C.S. v. ROMANIA","importance":2,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["The applicants , son and father , were born in DATE and DATE respectively and currently live in GPE .","From DATE to DATE , the first applicant , who was then a DATE boy , was allegedly subjected to repeated rape and violence by GPE","NORP In DATE , the child was followed home from school by GPE In front of the applicant \u2019s family \u2019s apartment , GPE grabbed the key from his hand , opened the door and forcefully pushed the boy inside . He hit the child several times in the stomach . He pulled the applicant \u2019s clothes off and tied his hands and legs and gagged him with strips of white cloth that he had taken out of his trouser pocket . Then GPE dragged the boy into the kitchen , removed a piece of furniture from against the wall and placed it near the couch . He bent the child over the furniture and sexually abused him . He then removed the gag and forced the child into oral sex . GPE hit the applicant again several times in the stomach , head and genitalia , untied him and told him to put his clothes on . He threatened the child with a knife and warned him that he would kill him if anyone found out what had happened .","The first applicant was too scared to scream during the assault .","The abuse continued during DATE , several times per week . At a certain point , GPE made a copy of the applicant \u2019s key so he could enter the apartment . Sometimes he would wait for the child inside , sometimes he came with a dog and once with other persons , including CARDINAL minor children . Before leaving the apartment , GPE sometimes stole food and small sums of money .","Eventually the applicant told his brother and father about what was happening to him .","After the events the first applicant changed school and in DATE the family finally moved from PERSON to GPE , following the advice of the school psychologist .","The Government did not contest the description of the facts by the first applicant .","On DATE and CARDINAL DATE on behalf of his son , the second applicant reported the sexual abuse and violence inflicted on the child to PERSON . He accused GPE , GPE and GPE He reiterated his complaints on DATE , DATE , DATE and DATE and on DATE .","The police started investigating the case .","On DATE , at the request of the investigators , the first applicant underwent a medical examination at FAC . The record noted :","\u201c ... healing anal lesion and hypotonia of the anal sphincter . No signs of violence on the body ... The lesions necessitate DATE of medical care and could have been caused by anal intercourse . \u201d","A medical certificate issued on DATE at the request of the police , summarised the findings of the examination .","On DATE , DATE and DATE GPE gave statements to the police . He claimed that he had not been in the area during that period , and that he did not know the applicants\u2019 family . He had only been in the building once , on New Year \u2019s Eve , for TIME . He admitted that he used to take his sister \u2019s dog out for a walk but he had not done so in a while ; during the time in question he had been training a similar dog , in the afternoons , from TIME During a polygraph test , GPE showed simulated behaviour when asked whether he had had sexual intercourse with the first applicant .","ORG and GPE denied any participation in the abuse .","The first applicant was interviewed several times by the investigators . He gave details about the facts . His statements were recorded on DATE , DATE , CARDINAL DATE and DATE . In some of the interviews he declared that he had told his brother and father about the abuse , but in others he stated that he had not mentioned anything to anyone . In his first statement he also told the police that DATE after he had told his father about the abuse , his parents had allowed him to return on his own from school and he had remained alone in the apartment after school .","The second applicant gave statements to the investigators , relating the facts as his son had described them .","On DATE the first applicant \u2019s mother declared that she had suspected something was going on as her son \u2019s voice on the phone had sometimes been trembling and as she had sometimes found the house untidy and litter in the bathroom , but that she had thought the children were responsible . Before the prosecutor she supplemented her statements and stated that during that time she had noticed that food and money had disappeared from the house .","The first applicant identified GPE in a line up at the police headquarters .","Several other witnesses were interviewed by the police , including neighbours and acquaintances .","ORG , the neighbour from upstairs , stated that she had no knowledge of what had happened in the applicants\u2019 home . DATE she changed her statements and declared that she had seen a man who fitted GPE \u2019s description entering the applicants\u2019 apartment with a dog during the period in question . She explained that she had been afraid that if she talked about what she had seen , the neighbours would have thought she had been spying on them . During the investigations and court proceedings PERSON changed her statements , claiming both to have seen GPE entering the victim \u2019s apartment several times , DATE , and to have seen him entering only once .","On DATE the police confronted GPE and GPE They both maintained their previous statements .","B.V. informed the police that at the second applicant \u2019s request , he had followed the applicant to school and home a few times in DATE . He had noticed GPE in the vicinity several times , and on DATE had seen him forcing the first applicant into the apartment .","GPE , ORG adolescent son , stated that he had seen GPE entering the victim \u2019s home from DATE , sometimes with a dog . On DATE the police organised a confrontation between GPE and GPE FAC maintained that he had seen GPE entering the apartment with the victim and then had heard the child scream . GPE denied having seen GPE or having abused the first applicant .","The investigators also searched the ORG and GPE \u2019s homes , but found no further evidence to support the accusations . They checked the record of calls made from the applicants\u2019 telephone during the period under investigation . They also checked and confirmed that the upstairs neighbours could see , from the hallway , who entered the applicants\u2019 apartment .","During the investigations the first applicant underwent several medical and psychiatric evaluations in the presence of his father .","On DATE a new medical examination by ORG , ordered by the police , confirmed the findings of the expert examination of CARDINAL DATE . The doctors considered that it was impossible to tell whether the perpetrator had been an adult or a minor . They concluded that the lesions could only have been caused by repeated sexual abuse .","On DATE ORG attached to ORG decided to discontinue prosecution of GPE and not to prosecute PERSON and GPE The second applicant objected .","On DATE the prosecutor at ORG allowed the objection and sent the case back to the police for further investigation .","On DATE ORG attached to LOC again decided to discontinue the prosecution . On DATE the second applicant \u2019s objection was allowed by ORG attached to ORG . The latter sent the case to the ORG prosecutor and ordered him to continue the investigation .","On DATE the prosecution file was sent to ORG attached to ORG with an instruction to continue the investigation .","On DATE the prosecutor at ORG discontinued the prosecution of GPE and decided not to prosecute PERSON and GPE on the ground that they had not committed the crimes . It was also decided to continue the investigation in order to identify the criminals .","The second applicant appealed against the decision . On DATE the ORG attached to ORG reversed the decision .","On DATE , the prosecutor at ORG committed GPE to trial for rape and unlawful entry of the victim \u2019s home ( violare de domiciliu ) . It was also decided not to prosecute PERSON and GPE The first applicant sought civil damages in the amount of CARDINAL NORP lei .","During this period some witnesses were brought in again for interviews and a new expert report was drafted concluding that the anal lesions suffered by the first applicant may have been produced DATE before the expert examination of CARDINAL DATE . On DATE , the second applicant refused to subject his son , the first applicant , to another psychiatric evaluation .","NORP Throughout the investigation and prosecution , the second applicant complained several times about the length of the proceedings . His complaints were dismissed by ORG attached to ORG on DATE and DATE . On DATE GPE answered a similar complaint , outlining the latest procedural steps taken in the case .","In addition , on DATE the second applicant complained that he , his family and some of the witnesses had received threats from GPE On DATE GPE threatened the applicants with retaliation . They reported the incidents to the police .","On DATE the second applicant complained about the prosecutor \u2019s decision not to prosecute PERSON and GPE On CARDINAL DATE ORG dismissed the complaint . The decision became final as the parties did not appeal against it .","The case was initially referred to ORG . However , on DATE ORG changed the legal classification of the crimes and sent the case to ORG . It noted that at the time when the facts occurred , males were not recognised as potential victims of rape . Furthermore , at the time of the investigations , same - sex relations had been decriminalised . Therefore the facts under investigation could only be classified as the crime of \u201c sexual perversion \u201d and \u201c sexual corruption of a minor \u201d , which were under the jurisdiction of the district courts .","ORG started the examination of the case . On CARDINAL DATE the first applicant gave a detailed description of the facts . GPE denied having committed any crime against the applicant .","NORP In DATE the first applicant \u2019s older brother gave a statement to the court . He related what his brother had told him about the abuse . He further stated that around that period ( DATE ) his brother \u2019s behaviour had changed , he had refused to eat , had constantly been scared and had sometimes had blood on the back of his underpants . He declared that their mother had also noticed those blood stains .","The first applicant \u2019s mother admitted that neither she nor her husband had taken time off work to accompany the child and see what had happened , although she had noticed the changes in his behaviour and sometimes even physical signs of potential abuse .","Several witnesses were interviewed by the court , including the neighbours GPE and ORG , as well as GPE","DATE and DATE , the first applicant underwent a psychological evaluation . The final report revealed that he showed anxiety when shown his alleged aggressor \u2019s image , uncertainty and social isolation ; that he wished to have the routine of a \u201c normal child \u201d ; and that he had a tendency to exaggerate and invent things , common to sufferers of trauma caused by such violence , especially children .","On DATE the second applicant complained about the length of the proceedings and about GPE \u2019s request for release . On DATE he complained that GPE had been released from detention .","On DATE the first applicant underwent a psychiatric evaluation in ORG No . CARDINAL . The examination commission noted that he was scared , insecure , had difficulty concentrating and showed the frustration associated with the experience of not being believed by others .","On DATE ORG acquitted GPE , on the ground that the crimes had not been committed by him .","The court noted in particular that the parents had failed to notice the change in their child \u2019s behaviour and to notify the authorities in good time , but rather had waited until after the abuse had been going on for some time . The court also observed that the descriptions of the facts given by the first applicant and the witnesses had not been accurate and differed in the details and pointed to the fact that the second applicant had tried to influence some of the witnesses to give statements against GPE The court also attached importance to the fact that the searches performed during the criminal investigation had revealed no traces of GPE \u2019s presence in the victim \u2019s apartment or any evidence in GPE \u2019s apartment to support the accusation against him . Lastly , the court considered that the findings of the medical report were not conclusive as to GPE \u2019s guilt .","On DATE ORG dismissed the appeals lodged by the prosecutor and the applicant against the judgment given by ORG .","ORG found that there were contradictions in the statements given by the parties and witnesses . It acknowledged that such contradictions may have been caused by the time that had lapsed between the events and the examination of evidence by the courts , but considered that the length of the investigations had not been the main cause of the discrepancies . Accordingly , it noted that from the beginning of the investigation the second applicant and the witnesses had given contradictory descriptions of the aggressor in their various statements and considered that some of the witnesses had been dishonest and that the victim \u2019s father had tried to influence several individuals to testify against GPE The court also considered that the police line up had not been carried out properly , as the persons chosen to stand with GPE had differed in physical appearance , in particular their height , length of hair , and posture . It also noted that CARDINAL family from the whole block of flats had heard the child screaming . The court was concerned by the fact that despite the alleged physical evidence of abuse ( blood stains for example ) and other odd occurrences around the house ( missing food , moved furniture ) , the parents had waited a long time before reporting the alleged abuse to the police . Lastly , it noted that his psychological profile indicated that the first applicant was prone to exterior influence and fantasizing , and considered that he might have \u201c put his parents on a false track , either because he did not know who the aggressor was or because he wanted to hide the latter \u2019s identity \u201d .","On DATE ORG dismissed , by CARDINAL votes to one , the appeals in cassation lodged by the prosecutor and the applicant . It reiterated the arguments put forward by ORG . The dissenting judge argued that the evidence in the file was sufficient to convict GPE for sexual corruption and unlawful entry .","DATE . At the date when the abuse against the first applicant occurred , the relevant provisions of LAW read as follows :","\u201c ( CARDINAL ) Sexual intercourse with a female through coercion or taking advantage of her incapability of defending herself or of expressing her will , is punishable by DATE of imprisonment .","( CARDINAL ) The sentence will be from DATE if :","( a ) the act was committed by CARDINAL or CARDINAL persons together ; ...","( CARDINAL ) The sentence will be from DATE if the victim is not yet DATE ... \u201d","\u201c ( CARDINAL ) Sexual intercourse with a female who has not yet reached DATE is punishable by imprisonment of from DATE . \u201d","\u201c ( CARDINAL ) Sexual intercourse between persons of the same sex , carried out in public or which causes a public scandal , is punishable by imprisonment of CARDINAL .","( CARDINAL ) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of DATE and loss of certain rights .","( CARDINAL ) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing his or her will , or which is performed through coercion , is punishable by imprisonment of CARDINAL and loss of certain rights . \u201d","\u201c ( CARDINAL ) Acts of sexual perversion committed in public which cause a public scandal are punishable by imprisonment from DATE . \u201d","\u201c ( CARDINAL ) Acts of an obscene nature committed to a minor or in his or her presence are punishable by imprisonment from DATE or by a fine . \u201d","Articles CARDINAL and CARDINAL have been amended successively in order to recognise males as potential victims of rape and statutory rape , by PERSON no . CARDINAL , which entered into force on DATE and by Emergency Ordinance no . CARDINAL\/CARDINAL , which entered into force on DATE . The latter Ordinance also decriminalised consenting same sex intercourse .","On DATE GPE ratified LAW on the Rights of the LAW ( \u201c the ORG \u201d ) , in force since DATE . The ORG stipulates that the best interests of the child and his or her dignity shall be a primary consideration in all actions concerning children ( LAW ) .","The ORG urges Member GPE to take all appropriate measures to protect children from all forms of violence , including sexual abuse , and to provide for the recovery and social reintegration of victims . The relevant articles read as follows :","\u201c CARDINAL . DATE States Parties shall take all appropriate legislative , administrative , social and educational measures to protect the child from all forms of physical or mental violence , injury or abuse , neglect or negligent treatment , maltreatment or exploitation , including sexual abuse , while in the care of parent(s ) , legal guardian(s ) or any other person who has the care of the child .","Such protective measures should , as appropriate , include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child , as well as for other forms of prevention and for identification , reporting , referral , investigation , treatment and follow - up of instances of child maltreatment described heretofore , and , as appropriate , for judicial involvement . \u201d","\u201c GPE Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse . For these purposes , GPE Parties shall in particular take all appropriate national , bilateral and multilateral measures to prevent :","( a ) The inducement or coercion of a child to engage in any unlawful sexual activity ; \u201d","\u201c GPE Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of : any form of neglect , exploitation , or abuse ; torture or any other form of cruel , inhuman or degrading treatment or punishment ; or armed conflicts . Such recovery and reintegration shall take place in an environment which fosters the health , self - respect and dignity of the child . \u201d","ORG on the Rights of the Child interpreted the text of the ORG in its General comments . Its latest General comment no . CARDINAL ( DATE ) on the right of the child to freedom from all forms of violence is aimed at guiding ORG parties in understanding their obligations under LAW , building on existing documents and reflecting on the evolution of the protection in question . The ORG acknowledged the efforts of the GPE to prevent and respond to violence . It nevertheless found that the GPE were lagging behind in their obligations :","\u201c \u00a7 CARDINAL NORP ... In spite of these efforts , existing initiatives are in general insufficient . Legal frameworks in a majority of GPE still fail to prohibit all forms of violence against children , and where laws are in place , their enforcement is often inadequate . \u201d","The ORG expresses the view that GPE are under a \u201c strict obligation \u201d to undertake all appropriate measures to fully implement this right for all children ( paragraph CARDINAL of the General comment ) . Among the ORG obligations , the ORG identified the need to : review and amend domestic legislation in line with LAW ORG ; ensure protection to child victims and effective access to redress and reparation ; enforce law in a child - friendly way ; and provide for counselling support ( paragraphs CARDINAL - CARDINAL of the General comment ) .","The ORG develops further on the content of the \u201c protective measures \u201d , stressing the importance of prevention , the need for an easily accessible report mechanism , the importance of rigorous and child - sensitive investigation and of effective and child - friendly justice where due process must be respected ( in particular paragraphs CARDINAL - CARDINAL of the General comment ) .","On DATE ORG , recognising that the well - being and best interests of children are fundamental values shared by all member GPE , adopted the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse urging the Member GPE to adopt measures to protect children from any form of abuse and to put in place a system capable of punishing any such acts .","On DATE the respondent ORG ratified that ORG which entered into force in respect of GPE on DATE ."],"violated_articles":["3","8"],"violated_paragraphs":["8-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88663","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF BELOUSOV v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in the town of GPE in the LOC region .","In DATE the applicant arrived in GPE . On DATE he was examined by the GPE medical commission , which found him to be in good health and fit to drive a car .","On DATE the applicant gave an interview to a national TV station , ORG , which was running a story on a dispute between private holders of government bonds and ORG . During the interview the applicant , the head of a group of private bondholders , accused the Ministry of initiating a vendetta against him and ordering assaults on bondholders to pressurise them into withdrawing their lawsuits against ORG . The interview was aired on ORG \u2019s DATE political analysis show , ORG .","On DATE police officers stopped the applicant and his brother in the street and asked them to show identification documents . The Government alleged that the police officers had acted on information about wanted criminals who looked remarkably similar to the applicant and his brother . According to the Government , the applicant and his brother were not in possession of any papers which could have proved their identity and they were taken to GPE police station in GPE ( ORG \u00ab PERSON \u0433. GPE ) owing to their \u201c refusal to comply with the orders of the police officers and use of obscene language in public \u201d . According to the applicant , he and his brother disclosed their identity , his brother presenting a military ORG card and the applicant showing a work pass .","At the station a police officer , PERSON . , drew up a note addressed to the head of the PERSON police department . The note read as follows :","\u201c [ I ] am writing to inform you that on DATE , at TIME , Mr GPE was brought to the police station together with PERSON : the police officer ] ; at the address ... , following several requests to present documents proving his identity , [ Mr ORG ] refused to show them and started swearing at us in the presence of private individuals , using obscene language and at the same time repeating that it would cost us MONEY ; the CARDINAL men refused to follow us to GPE police station .","The identity check was prompted by telephone message no . DATE . \u201d","According to the applicant , he was severely beaten in the police station by a group of allegedly drunk police officers . After the beatings he was moved to a cell . TIME he was brought to a room and forced to strip to the waist . He placed his clothes in a bag and was forced to lift the bag , which weighed QUANTITY , and to put it down . He had to perform this \u201c exercise \u201d over and over again . The applicant alleged that the task had been extremely difficult for him , as on DATE he had undergone surgery and had been prohibited from lifting weights heavier than a kilogram . The applicant lost consciousness and was taken to the ORG clinical hospital .","The Government , relying on information provided by ORG , confirmed the fact that the applicant had sustained injuries .","In the hospital the applicant was examined by a neurosurgeon , a neuropathologist , a urologist and an oculist . Medical report no . DATE was drawn up . The report indicated that the applicant had been admitted to the hospital at TIME on DATE and that he had been diagnosed with \u201c an injury to the front abdominal wall , bruises on the forehead and left hand , an injury to the kidneys , a craniocerebral injury and concussion \u201d .","The applicant stayed in the hospital until DATE . According to medical certificates nos . CARDINAL , CARDINAL and CARDINAL issued on DATE and DATE respectively , the applicant was on sick leave until DATE and underwent treatment at home .","On DATE the applicant was examined by an occupational medical expert panel ( \u0432\u0440\u0430\u0447\u0435\u0431\u043d\u043e-\u0442\u0440\u0443\u0434\u043e\u0432\u0430\u044f \u044d\u043a\u0441\u043f\u0435\u0440\u0442\u043d\u0430\u044f \u043a\u043e\u043c\u0438\u0441\u0441\u0438\u044f ) and recognised as physically disabled . Medical certificate no . DATE issued by the panel indicated that the applicant had \u201c a second - degree disability \u201d .","The applicant \u2019s mother complained to the GPE district prosecutor \u2019s office that on DATE the applicant had been unlawfully arrested and beaten up .","On DATE the GPE district deputy prosecutor sent a letter to the applicant \u2019s mother informing her that criminal proceedings had been instituted against the police officers at GPE police station .","On DATE an investigator from the GPE district prosecutor \u2019s office closed the criminal proceedings , finding that there was no case of ill - treatment to answer . The relevant part of the decision read as follows :","\u201c In the course of the investigation it was established that on DATE , at TIME , PERSON . and PERSON , on - duty officers from the GPE district police department , stopped CARDINAL persons near house no . ... who resembled persons wanted in connection with telephone message no . DATE . The persons concerned refused to present identity documents and were brought to GPE police station for an identity check . At the station one of them identified himself as Mr PERSON , a DATE student at a military academy ; the other introduced himself as PERSON PERSON . Following a check though ORG the identity of Mr D.A. Belousov was confirmed , and at TIME he was handed over to a representative of the military commander \u2019s office . The second person ( Mr GPE , as it was established later ) was placed in a cell for administrative arrestees ; later he felt sick and an ambulance was called for him . At TIME he was handed over to an emergency team which took him to the ORG clinical hospital .","According to a statement by [ the applicant ] , on DATE he and his brother PERSON were on their way to GPE market . At TIME a police officer , wearing no badge of rank or insignia , stopped them and asked them to show some identity documents . [ The applicant ] showed his \u201c GPE \u201d company work pass , and [ his brother ] showed his military ORG card . At that moment another police officer , wearing badge no . DATE , approached them and pushed [ the applicant ] ; [ the latter ] screamed and the police officer then twisted his arm . Consequently [ the applicant ] asked to be taken to a police station for an explanation . An on - duty patrol which had arrived at the scene took [ the applicant ] and [ his brother ] to GPE district police station . At the police station [ the applicant ] went into the lobby to smoke a cigarette . An on - duty sergeant , wearing badge no . DATE , said that arrestees could not smoke there ; [ the applicant ] responded that he had not been arrested , and the sergeant then called a captain who was standing on the steps of the police station . The captain started hitting [ the applicant ] ; when , responding to [ the applicant \u2019s ] screams , [ his brother ] ran from the duty room , the captain hit [ his brother ] with a machine gun and dragged him back to the duty room . The sergeant wearing badge no . DATE and another sergeant , wearing badge no . DATE , continued beating [ the applicant ] up . Then [ the applicant ] crawled to the duty room and asked the police officers who were there to call an ambulance . [ The applicant ] and [ his brother ] were placed in a cell for administrative arrestees ; the police officers dismissed all their requests to place a call to their house or to call an ambulance . During his detention at the station [ the applicant ] was twice submitted to a bodily search without any record being taken ... At TIME a major from the military academy arrived to pick up [ his brother ] . Subsequently a district police officer arrived at the station and , after forcing [ the applicant ] to strip to the waist , he and the captain present at the station made [ the applicant ] lift his clothes and move them from CARDINAL place to another , following which [ the applicant ] lost consciousness . [ The applicant ] regained consciousness in a room where it was extremely hot ; the police officers took him to a shower room where an officer on duty provided him with medical assistance . From that time on [ the applicant ] was almost unconscious until his transfer to the surgical wing of the hospital . An ambulance was called for him and subsequently [ the applicant ] was brought to the ORG clinical hospital .","[ The applicant \u2019s brother ] , who was questioned as a witness , confirmed [ the applicant \u2019s ] statements in general , but also stated that CARDINAL police officers had carried [ the applicant ] from the lobby . When [ the applicant \u2019s brother ] was leaving the station , [ the applicant ] had not had any injuries to his head and hands .","According to a report by the GPE district police department , badge no . DATE is assigned to PERSON , badge no . DATE is attributed to PERSON and badge no . DATE is assigned to PERSON . During an identification parade in which the police officer wearing badge no . DATE ( Mr Kh . ) took part , [ the applicant ] identified him and noted that the police officer in question had not beaten him up but that he had arrested him ; [ that statement ] is corroborated by other police ORG statements .","According to a statement by the police officer , PERSON . , he and PERSON were on duty near GPE market on DATE . At CARDINAL p.m. they noticed CARDINAL men who looked similar to criminals wanted in connection with telephone message no . DATE . In response to a request for identity documents , a man ( [ the applicant ] , as it was subsequently established ) started screaming obscenities at the police officers . The CARDINAL men refused to show identity documents . In response to the ORG request that they go to GPE police station , [ the applicant ] said that he would not follow the officers and that he would not speak to a police officer below the rank of major ; he also demanded that they call a car . A group on patrol was called to the scene to bring the QUANTITY men to the police station . Physical force was not used against the QUANTITY men .","PERSON . \u2019s statements are fully corroborated by a statement from PERSON","Mr NORP , who was questioned as a witness , stated that on DATE , in response to a call from an on - duty officer he , as a member of a group on patrol , together with PERSON and PERSON , had arrived to render assistance to the on - duty officers . CARDINAL apprehended persons were handed over to them ; the patrol took them to GPE police station . They did not use physical force against the QUANTITY men . Mr NORP \u2019s statements are fully corroborated by statements from PERSON and PERSON","Mr Do . , an officer on duty at GPE police station , who was questioned as a witness , stated that on DATE CARDINAL apprehended persons had been brought to the duty unit of GPE police station . CARDINAL of the arrestees introduced himself as Mr PERSON , a student at the military academy , and showed his military ID card ... ; the other person introduced himself as Mr PERSON and did not have any documents on him . Following a check through ... databases which produced a negative response , [ the applicant ] was asked to state his real name . Subsequently [ the applicant ] attempted to leave the station and started smoking . An officer on duty , PERSON , made a remark , following which [ the applicant ] fell to the floor and started screaming that he was being beaten up . When [ Mr Do . ] asked him what was going on , [ the applicant ] said that he had undergone surgery and showed scars on his stomach . The arrestee was reprimanded and placed behind bars . Subsequently [ the applicant ] continued behaving provocatively , used obscene language , threatened the police officers and tore up roubles and dollars . At TIME he complained that he did not feel well and emergency doctors were called , who transferred him to the ORG clinical hospital . The police officers behaved properly towards [ the applicant ] ; no physical force was used .","Mr Do . \u2019s statements were confirmed by statements from police officers PERSON , PERSON P. , PERSON . and PERSON","According to the statements given by a witness , PERSON , on DATE he and a group of emergency doctors arrived at GPE police station . A man was sitting in the station behind bars , with his hand on his stomach . He complained of pain in his stomach . During conversation he stated that he was disabled and that he had recently undergone surgery during which a part of his stomach had been removed ; he began showing the scars on his stomach . No visible injuries were discovered on [ the applicant ] . The police officers behaved properly towards [ the applicant ] . The patient was taken to the Botkin clinical hospital .","PERSON . , an emergency team medical assistant , who was questioned as a witness , testified that on DATE he and the emergency team had arrived at GPE police station . A man ( the applicant , as was later established ) was sitting on a couch behind bars with his hand on his stomach . [ The applicant ] said that he had been beaten up by the police . Other arrestees held at the station said that [ the applicant ] was lying . In the car [ the applicant ] talked , saying that he had undergone surgery . He stated that when he had been approached by police officers in the street and had been asked to show some identity documents he had used obscene language .","PERSON , who was questioned as a witness , stated that on DATE she had been in a room for administrative arrestees . CARDINAL more persons were being held there ; CARDINAL of them ( [ the applicant ] , as it transpired later ) behaved provocatively , screaming and threatening the police officers . The police officers behaved properly towards all the arrested persons ; they did not use physical force .","During an additional interview [ the applicant ] stated that a captain had begun hitting him in the lobby . At first [ the captain ] had hit him with his right hand on the upper part of the left shoulder ; after that blow [ the applicant ] slipped down by the wall and fell near a rubbish bin . Then the captain kicked [ the applicant ] twice : once in the stomach and once in the back near the kidneys . The first kick in the stomach was particularly hard . After that the sergeants approached [ the applicant ] and hit him CARDINAL times in the stomach and back . The applicant then crawled into the duty room where he was hit several times in the buttocks ...","According to a report issued in the ORG clinical hospital [ the applicant ] had an injury to the abdominal wall , an injury to the right kidney , bruises on the forehead and left hand , a craniocerebral injury and concussion ; his state of health was satisfactory . Following ultrasound examinations of the abdominal cavity and kidneys no pathology was detected .","A forensic medical examination of [ the applicant ] was performed in the case . According to the expert report , [ the applicant ] had sustained concussion and an injury to the forehead , which constituted elements of a single trauma and belonged to the category of injuries causing mild damage to health , that is , a short - term deterioration in health lasting DATE ... The diagnosis of \u201c an injury to a kidney \u201d indicated in the medical documents was not confirmed by objective clinical data and the results of the special examinations ... The diagnosis \u201c traumatic encephalopathy \u201d indicated in the medical documents could not be examined by the expert , because there was insufficient objective data for analysis ... At present [ the applicant is suffering ] from psycho - vegetative syndrome and depression , and needs psychiatric treatment . There is no mention of an injury to the post - surgical sutures in the medical documents presented for expert examination . Differences in the scar tissue along the line of the postsurgical sutures do not exclude a possible partial opening of the sutures in the upper part .","Taking into account the fact that the arguments raised by [ the applicant ] were not objectively confirmed in the course of the pre - trial investigation ... , [ the investigator ] orders the closure of the criminal proceedings instituted pursuant to LAW ( a ) of LAW of GPE ... \u201d","The applicant complained to the GPE city prosecutor and ORG that the criminal proceedings against the policemen had been closed .","According to the Government , the decision of DATE was quashed on DATE by a higher - ranking prosecutor and the case was remitted for additional examination . No copy of that decision was submitted to the ORG .","On DATE an investigator from the GPE district prosecutor \u2019s office again discontinued the criminal proceedings , finding that there was no case of ill - treatment to answer . The decision of DATE was identical in its wording to the decision of DATE , save for CARDINAL additional paragraphs in which the investigator recounted the testimonies of CARDINAL witnesses , PERSON . and PERSON . , who had been detained at the police station together with the applicant . Both witnesses stated that they had not seen the alleged beatings and that the applicant had behaved \u201c provocatively \u201d . According to the applicant , the decision of DATE was not served on him .","In the meantime , on DATE , ORG of GPE disallowed the applicant \u2019s complaint against the decision of DATE . ORG held as follows :","\u201c The plaintiff challenges the decision issued in criminal case no . DATE .","A complaint concerning a decision issued in the course of criminal proceedings can not be examined in civil court proceedings . Complaints concerning actions of the prosecution authorities can not be examined by courts of general jurisdiction , as special laws exist relating to the prosecution \u201d .","The Government , relying on a report issued by the President of ORG in DATE , submitted that ORG had refused to examine the applicant \u2019s complaint because the decision of DATE had been quashed by a prosecutor and the investigation had been reopened .","On DATE the applicant received a copy of the decision of CARDINAL DATE . The applicant \u2019s representative asked ORG to restore the time - limit for lodging an appeal against that decision . A copy of the statement of appeal was attached to the request . No response followed . On DATE the applicant \u2019s representative complained to the President of ORG that her request had not been examined . The stamp on the letter of CARDINAL DATE shows that ORG received the letter DATE . The applicant did not receive any response .","On DATE the GPE city deputy prosecutor quashed the decision of DATE and reopened the investigation into the applicant \u2019s ill - treatment complaint , finding as follows :","\u201c The decision [ of DATE ] on the closing of a criminal case was issued unlawfully and without any grounds and should be quashed , because in this case it is necessary to question [ the applicant \u2019s mother ] ; to identify and question all the individuals detained in the cell for administrative arrestees when [ the applicant ] and [ his brother ] were at the police station ; to question further [ the applicant \u2019s brother ] about his and [ the applicant \u2019s ] injuries and about material evidence showing that those injuries were sustained ; to question further the emergency doctors who arrived at the police station and took [ the applicant ] to the ORG clinical hospital in GPE about the visible injuries ; to question thoroughly the doctor who performed the initial examination of [ the applicant ] in the ORG hospital ; to organise , if necessary , confrontation interviews between the doctors ; to carry out a legal evaluation of the [ the applicant \u2019s ] injuries discovered during the forensic medical examination ( concussion , an injury to the forehead , an injury to the left hand and an injury to the right shoulder ) and to perform other investigative actions aimed at establishing the truth in the case . \u201d","On DATE an investigator from the GPE district prosecutor \u2019s office discontinued the criminal proceedings against the police officers , concluding that no criminal conduct had occurred ( LAW ) . The investigator copied the wording of the decision of DATE , merely adding that the forensic medical examination had established that the applicant \u2019s injuries could have been caused by blows administered with a blunt firm object , possibly on CARDINAL DATE . He also included additional statements by the CARDINAL witnesses PERSON and PERSON . , who had been unable to recall further details of their stay at the police station in DATE owing to the length of time since the events , and had merely confirmed their statements given to the investigator in DATE . The investigator did not question the applicant \u2019s mother and brother because he could not establish their place of residence . He was also unable to identify all the individuals who had been detained at the police station together with the applicant , because the registration logs bearing the names of persons detained at GPE police station had been destroyed .","On DATE the GPE city deputy prosecutor quashed the decision of DATE , reopened the investigation into the applicant \u2019s ill - treatment complaints and ordered that investigators should \u201c take procedural decisions concerning the fact that injuries were inflicted on [ the applicant ] , question [ police officers ] PERSON and PERSON and take other investigative actions necessary in the course of the investigation \u201d . It appears that the proceedings are now pending .","The RSFSR Code of Criminal Procedure ( in force until DATE , \u201c the CCrP \u201d ) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities\u2019 own initiative , where there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for overall supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order specific investigative actions , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate or continue a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction ( Articles CARDINAL and CARDINAL ) .","On DATE the old Code was replaced by LAW ( \u201c the new ORG \u201d ) . LAW ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .","The LAW of GPE adopted by referendum on DATE provides , in so far as relevant , as follows :","\u201c CARDINAL . Everyone has a right to liberty and personal security .","Arrest , detention and placement in custody shall be subject to a court decision . No one may be detained longer than TIME before the court decision is taken . \u201d","Section CARDINAL of the Administrative Code ( in force until DATE ) provided that the police could subject a person to an administrative arrest to prevent an administrative offence , to establish a person \u2019s identity , to issue a document certifying that an administrative offence had been committed , if it was necessary and could not be done on the spot , and to ensure effective proceedings or the enforcement of administrative sanctions . Section CARDINAL provided , in particular , that the term of administrative arrest should not exceed TIME , except for certain categories of offenders including those who had committed a minor disorderly act , who could be detained as long as necessary until their case was considered by a district ( town ) judge or a high - ranking police officer . Section CARDINAL set out the requirements with regard to arrest reports . By virtue of section CARDINAL an arrest report was to be signed by the official enforcing the arrest and the arrestee . Section CARDINAL of the Administrative Code provided for appeal against administrative arrest to a prosecutor or a high - ranking police officer .","Section CARDINAL of LAW ( see above ) established that a minor disorderly act , that is , use of offensive language in public , harassment and other similar acts which disturbed the public order and the peace of individuals , was punishable by CARDINAL days\u2019 administrative arrest ."],"violated_articles":["3","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5422","languageisocode":"ENG","respondent":"GRC","branch":"ADMISSIBILITY","date":2000,"docname":"BITROS A.B.E.E. IRON AND STEEL PRODUCTS, KORAL E.P.E. GENERAL REPAIRS OF SHIPS and MARINAKIS A.E. v. GREECE","importance":4,"conclusion":"Inadmissible","judges":"","text":["CARDINAL applicant companies are registered under NORP law . The first has its seat in Apropirgos in Attika , the second in GPE and third in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","CARDINAL applicant companies are creditors of ORG , a company PERCENT of the capital of which belongs to CARDINAL public sector banks . ORG holds PERCENT of the capital , ORG , ORG , which is a subsidiary of ORG , PERCENT and ORG .","In DATE ORG was sold to ORG under LAW DATE , which applies to \" ailing companies \" . The sale fell within the context of a settlement procedure initiated by the majority of the creditors of the shipyard . It was approved by the majority of its shareholders and the Government . Under the terms of the sale agreement , ORG did not become liable for most of the outstanding debts of NORP except for , inter alia , claims of the shipyards ' suppliers that had been properly entered into the company 's books . It appears that the applicant companies had claims falling within this category .","Elefsis Shipyards remained under A.M. Ltd until DATE . Although ORG did not honour its obligation under the above - mentioned agreement to satisfy the claims of the applicant companies , the latter continued supplying the shipyards . These were heavily financed by a number of public sector banks including those that had previously owned them .","On DATE ORG , considering that the DATE contract for the purchase of the shipyards was null and void , withdrew from it . It also decided to surrender the management of the shipyards to ORG . Moreover , it was announced that the shipyards would suspend their operation .","On DATE , CARDINAL of the creditors of ORG - ORG , ORG , ORG , ORG and ORG of GPE - requested ORG ( Efetio ) of GPE to place ORG under the special liquidation procedure of Article CARDINALa of Law CARDINAL\/CARDINAL . They asked that ORG be appointed special liquidator . They also requested that the shipyards ' personnel should not be dismissed so that the shipyards would continue functioning and discharge their obligations under certain contracts they had with ORG . This would have enabled the shipyards to be sold at a higher price later .","This application was notified to a number of interested parties but not to all the creditors of ORG . The applicant companies were not among those to whom the application was notified .","The second and third applicant companies , together with CARDINAL other companies , intervened in the proceedings arguing that placing ORG under the special liquidation procedure of Article CARDINALa of Law CARDINAL\/CARDINAL would amount to a violation of their rights under LAW No . CARDINAL .","On DATE ORG of GPE considered that the conditions set forth in LAW DATE were met in the Elefsis Shipyards ' case . The claims of the creditors who had lodged the application represented PERCENT of the total claims against the company and the shipyards were a commercial company that had suspended its operation for financial reasons . As for the rest , it was not necessary for the court to examine the reasons why the company had become indebted , who was responsible for the debts and whether placing the company under the special liquidation procedure would be in the best interests of all the creditors or of third persons or even of the company itself .","According to ORG , the right of the second and third applicant companies under the LAW and the LAW to be heard was not violated because they could intervene in the proceedings . Moreover , the LAW and the LAW did not prevent the ORG from enacting laws for the control of the use of private property in the public interest . Therefore , the court decided that ORG Shipyards should be placed under the special liquidation procedure of Article CARDINALa of Law DATE .","Furthermore , the court considered that , under the above - mentioned law , it had to appoint as the special liquidator the bank suggested by the creditors , in casu ORG . It also decided that the shipyards ' personnel should not be dismissed . The shipyards should continue functioning and fulfil their obligations under certain profitable contracts which were pending . This would increase the value of the company which would then be sold at a higher price .","According to the judgment of ORG , a company placed under special liquidation in accordance with Article PERSON of Law CARDINAL\/CARDINAL can not be declared bankrupt . No judicial decisions can be enforced and no interim measures can be ordered against it .","The decision of DATE of ORG , the text of which was finalised on DATE , was not served on the intervening parties .","On DATE the first applicant company obtained an order for payment against ORG for MONEY plus interest and costs . This was served on ORG on DATE and DATE .","On DATE the second applicant company obtained a similar order for MONEY plus interest and costs . On DATE it obtained a further order for MONEY plus interest and costs and on DATE an order for MONEY plus interest and costs . These were served on ORG on DATE , DATE and DATE respectively . They were all reserved on DATE .","On DATE the third applicant company obtained an order for MONEY plus interest and costs , on DATE an order for MONEY plus interest and costs and on CARDINAL DATE an order for MONEY plus interest and costs . These were served on ORG on DATE , DATE , and CARDINAL DATE respectively . They were all reserved on DATE .","These orders have been served on NORP and have acquired res judicata effect . However , it has proved impossible to have them enforced .","Elefsis Shipyards continue functioning and making losses . They are financed by the same banks that requested its placement under special liquidation .","B. Relevant domestic law","According to LAW , a payment order can be enforced upon being served for the first time on the person concerned ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86178","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"MURRAY v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives on LOC . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr NORP PERSON of ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant received a notice of intended prosecution pursuant to section CARDINAL of LAW DATE , requiring him to name the driver of his car on DATE . He confirmed that he had been driving his car at that time .","On DATE the police made a conditional offer of a fixed penalty amounting to GBP CARDINAL and a CARDINAL penalty point endorsement on his licence , which the applicant accepted and paid .","The relevant domestic law and practice is set out in O\u2019Halloran and PERSON the GPE [ ORG ] , ORG . ORG , \u00a7 \u00a7 DATE , ORG DATE ..."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98445","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2010,"docname":"CASE OF CIUBOTARU v. MOLDOVA","importance":2,"conclusion":"Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 8;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in PERSON . He is a writer and a professor of LANGUAGE .","The applicant 's parents , PERSON and the late PERSON were born in DATE and DATE respectively , in GPE , province of GPE , GPE . Their NORP civil status documents did not contain any information concerning their ethnic identity . In their marriage certificate issued by the NORP authorities in DATE , the entry for ethnicity was left blank . However , the applicant 's birth certificate issued by the NORP authorities in DATE recorded his parents as ethnic PERSON . On the applicant 's mother 's birth certificate issued by the NORP authorities in DATE the ethnicity was also left blank . Later , the applicant 's parents were recorded as ethnic PERSON on their NORP identity cards issued in DATE and DATE , in accordance with applications completed and signed by them in which NORP ethnicity was indicated . On his NORP identity card the applicant was also indicated as an ethnic GPE .","In DATE the applicant applied to the GPE authorities to have his old NORP identity card replaced by a NORP identity card . On the application form he wrote \u201c NORP \u201d under ethnicity . However , he was told that his application would not be accepted unless NORP ethnicity was indicated on it . The applicant complied .","Shortly thereafter the applicant wrote to the local civil registration authority and requested , inter alia , that his ethnicity entry be changed from GPE to NORP . In an answer dated DATE the applicant was informed that since his parents were not recorded as ethnic NORP in their birth and marriage certificates , it was impossible for him to be recorded as an ethnic NORP .","On an unspecified date the applicant wrote to the central civil registration authority and again requested that his ethnic identity entry be changed from GPE to NORP . In an answer of DATE he was informed that NORP ethnicity had not been indicated in his parents ' documents and that , therefore , he could not claim such an ethnic identity . He was advised to search ORG for traces of NORP origin of his grandparents and other ancestors . The applicant wrote numerous complaints to the Prime Minister , the President of the country and other officials , but to no avail .","On DATE the applicant initiated proceedings against the ORG authority responsible for civil registration and identity papers and requested , inter alia , that his ethnicity entry and that of his parents be changed to NORP in ORG database and in his identity papers . He argued that he did not consider himself to be an ethnic GPE and that it was contrary to his right to freedom of conscience and to his personal dignity to be considered part of an ethnic group which he believed to be an artificial creation of the NORP regime .","On DATE ORG dismissed the applicant 's action on the ground that he had failed to prove that his parents were of NORP ethnic identity as no such identity had been recorded in their identity papers . The applicant appealed and relied , inter alia , on the provisions of ORG ( see paragraph CARDINAL below ) and on LAW .","On DATE ORG dismissed the applicant 's appeal on the same grounds , stating that the applicant had failed to prove that his parents were ethnic NORP . The applicant lodged an appeal on points of law with ORG .","On DATE ORG dismissed the applicant 's appeal on points of law and pointed out that according to section DATE of the Law on Documents pertaining to ORG ( see paragraph CARDINAL below ) it was impossible to change his parents ' ethnic identity to NORP because in none of their identity papers had NORP ethnicity been indicated .","The relevant provision of LAW reads :","\u201c ...","( CARDINAL ) The ORG recognises and guarantees to all the citizens the right to preserve , develop and express their ethnic , cultural , linguistic and religious identity . \u201d","Law no . CARDINAL of DATE on the Rights of Persons belonging to ORG , in so far as relevant , reads :","\u201c Within the meaning of the present law , persons belonging to national minorities shall be all persons who live on the territory of GPE , who are its citizens , who have ethnic , linguistic , cultural and religious particularities which make them distinguishable from the majority of the population \u2013 the Moldovans DATE and who consider themselves as having a different ethnic origin . \u201d","\u201c Any person belonging to a national minority shall have the right to choose freely whether or not he or she belongs to that minority . Such a choice or the exercise of rights related thereto shall not put the person in a disadvantageous situation . \u201d","Law no . CARDINAL of DATE on Documents pertaining to ORG , in so far as relevant , reads :","\u201c The following information shall be indicated in a birth certificate :","( a ) personal numeric code ;","( b ) the surname , given name , date and place of birth of the child ;","( c ) the surnames , the given names and the ethnic origin of the parents ;","( d ) the date of issue of the birth certificate and its number ;","( e ) the issuing authority of the birth certificate ; ... \u201d","\u201c ( CARDINAL ) Applications for modification and rectification of documents pertaining to civil status shall be lodged with ORG for the applicant 's place of residence .","( CARDINAL ) ORG shall uphold an application for modification and rectification of documents pertaining to civil status if :","( a ) the document pertaining to civil status contains errors , blank sections , abbreviations or spelling mistakes , or if it lacks data ; or","( b ) the rules concerning the creation of documents pertaining to civil status have been breached ; or","( c ) the applicant possesses an official document proving a change of gender . \u201d","\u201c It shall be impossible to rectify the ethnic identity of one 's parents in their children 's birth certificates , on the basis of identity papers of grandparents or other ascendants , if the parents ' civil status documents do not contain information concerning the requested ethnic identity . \u201d","Government Decision no . CARDINAL of DATE lists the information which must be included in the personal entry of each individual in ORG database . It provides , inter alia , that information such as blood group , colour of eyes , height , studies , ethnic identity and a specimen of signature have to be indicated in respect of every citizen . No information about an individual 's religion is required .","During NORP rule between the CARDINAL World Wars no ethnic data were collected or recorded by the ORG and the identity papers issued by the NORP authorities did not contain any information concerning the bearer 's ethnic identity .","After the territory of GPE became part of GPE , the NORP authorities recorded and indicated in each individual 's identity papers his or her ethnic identity . The ethnic identity was determined on the basis of the individual 's parents ' ethnic identities . If the parents had different ethnic identities , the individual had to opt for CARDINAL of them when receiving his first identity card at DATE . There was no possibility of subsequently changing one 's ethnic identity in identity papers or in the civil records . The ethnic identity of the representatives of the main ethnic group of the ORG was normally registered as GPE . Only in very few cases was it registered as NORP and it is not clear what criteria were adopted for such a distinction .","NORP The NORP practice of collecting and recording ethnic data was perpetuated by the NORP authorities after independence , with the difference that no information concerning ethnic origin was inserted in the new GPE identity cards . Information about ethnic identity is recorded in each individual 's personal entry in ORG database ( see paragraph CARDINAL above ) and does not appear on any identity papers issued to individuals or on birth , marriage , divorce or death certificates . It only appears on the birth certificates of an individual 's children under \u201c parents \u201d . Information concerning individuals ' ethnic identity also appears in criminal judgments and in various documents issued by the prosecuting authorities where the ethnic identity of the participants in criminal proceedings , such as defendants , victims and witnesses , is mentioned . It also appears in the old NORP passports which are still valid in GPE and which are usually used by persons with very limited financial resources .","As in GPE , an individual 's ethnic identity is recorded by the GPE authorities on the basis of the ethnic identities of his or her parents or the identity of CARDINAL parent if they differ . When applying for identity papers , each individual is requested to complete a form with various personal details such as height , colour of eyes , blood group , mother tongue , ethnic identity and others . In practice , applications are rejected if the ethnic identity indicated in the form by the applicant is not based on that of his or her parents . It is impossible under NORP law to change one 's ethnic identity without changing the ethnic identity of one 's parents and it is impossible to change the ethnic identity of one 's parents on the basis of entries in the identity papers of one 's grandparents ( see paragraph CARDINAL above ) .","The Government submitted a domestic court judgment dating from DATE in the case of PERSON where a person had succeeded in having his ethnic identity changed from PERSON to NORP . Neither of his parents were registered as ethnic NORP ; however , the court accepted evidence concerning one of his ancestors , born in DATE , who was a NORP from GPE .","According to a press release of ORG , according to the latest census conducted in DATE , the country had the following ethnic composition : PERCENT GPE , PERCENT NORP , PERCENT NORP , PERCENT Gagauz , PERCENT NORP , PERCENT NORP and PERCENT other ethnic origins .","NORP The relevant provisions of LAW for ORG of DATE , which entered into force in respect of GPE on DATE , provide as follows :","\u201c Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice . \u201d","The relevant part of the document of ORG of DATE reads as follows :","\u201c Persons belonging to national minorities have the right freely to express , preserve and develop their ethnic , cultural , linguistic or religious identity and to maintain and develop their culture in all its aspects , free of any attempts at assimilation against their will . \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-122655","languageisocode":"ENG","respondent":"SVN","branch":"ADMISSIBILITY","date":2013,"docname":"MAJCEN v. SLOVENIA","importance":4,"conclusion":"Inadmissible","judges":"Ale\u0161 Pejchal;Angelika Nu\u00dfberger;Ann Power-Forde;Ganna Yudkivska;Helena J\u00e4derblom;Mark Villiger","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before ORG by Odvetni\u0161ka Dru\u017eba Matoz D.O.O. , a law firm practising in PERSON .","ORG ( \u201c the Government \u201d ) are represented by their Agent , PERSON , ORG Attorney .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant has been serving his sentence in the closed section of Dob Prison from DATE .","As regards the facilities available to the applicant in the cells and common areas , as well as the health care regime in the prison , the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general , see the ORG \u2019s decision in the case of PERSON and PERSON v. GPE ( dec . ) , nos . CARDINAL , CARDINAL\/CARDINAL , CARDINAL , ORG , CARDINAL\/CARDINAL , ORG , CARDINAL , ORG , CARDINAL\/CARDINAL and DATE .","DATE and DATE the applicant was held in cell CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . Subsequently , he was transferred to a single cell in FAC , which measured QUANTITY . On DATE he was , due to his health problems , transferred into one of the smaller shared cells in FAC that serve as patients rooms , measuring QUANTITY and accommodating CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . On DATE the applicant was transferred into cell no CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . On DATE he was placed in cell no CARDINAL , Block CARDINAL that served as patient room and measured QUANTITY and accommodated CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . On DATE the applicant was , upon his request , transferred back to a regular room .","From DATE until DATE the applicant was on CARDINAL occasions treated for different health problems in the prison clinic . He has inter alia been undergoing a methadone - maintenance treatment and has been treated by the prison psychiatrist . DATE and DATE the applicant was hospitalised in the Novo mesto ORG in connection to a problem with appendicitis .","On DATE the applicant was diagnosed with hepatitis C. After the infection had been diagnosed , the applicant was referred to an infectologist for the first examination but he initially refused to be examined . He was then examined on DATE in the Novo mesto ORG by an infectologist who , due to seriousness of the applicant \u2019s condition , referred him to ORG in GPE for a second opinion . The applicant refused to undergo the aforementioned examination in ORG in GPE . DATE and DATE the applicant was hospitalised in the Novo mesto ORG due to the deterioration of his condition . According to the reports drawn up by a prison doctor dated CARDINAL DATE and DATE the applicant had on several occasions also refused to be examined whereas the applicant \u2019s hepatitis C has been treated according to the medical practice .","For the relevant domestic law and practice , see paragraphs CARDINAL and CARDINAL - CARDINAL of the ORG \u2019s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL , CARDINAL DATE ) , and paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL\/CARDINAL and CARDINAL , DATE ) , PERSON and Others , cited above , as well as PERSON v. GPE ( no . MONEY , CARDINAL DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-95808","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF POLKOWSKA v. POLAND","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lives in Otwock .","On an unspecified date in DATE the applicant 's former husband instituted civil proceedings for division of matrimonial property .","During the proceedings ORG ( S\u0105d Rejonowy ) decided on several occasions , of its own motion , to stay the proceedings due to the fact that the plaintiff had not paid the relevant costs arising in the course of the proceedings .","On numerous occasions the applicant requested the court to resume the proceedings and to proceed speedily with the claim .","On DATE the applicant complained to the President of ORG ( Prezes PERSON ) about the delay in the proceedings .","On DATE the proceedings were resumed .","On DATE the ORG gave a decision ordering the plaintiff to pay a certain amount to the applicant . The applicant appealed .","On DATE ORG ( PERSON ) partly amended the first - instance decision and dismissed the remainder of the appeal .","On DATE the applicant lodged a complaint with ORG under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) .","The applicant sought a ruling that the length of the proceedings before ORG had been excessive and an award of just satisfaction in the amount of MONEY ( ORG ) .","On DATE ORG dismissed the applicant 's complaint . It limited its examination of the lengthofproceedings issue to the period after the entry into force of the CARDINAL Act and stressed that the LAW could not be applied to the protracted length of court proceedings occurring before that date . Having analysed the conduct of ORG during the period after the entry into force of LAW ( that is after DATE ) , ORG found that there were no delays for which ORG could be held responsible . It held that the proceedings had been conducted with due diligence and within a reasonable time .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are set out in the ORG 's decisions in the cases of ORG v. GPE ( no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V ) and NORP v. GPE ( no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ) and the judgment in the case of GPE v. GPE , ( no . CARDINAL , \u00a7 \u00a7 DATE , ORG ) ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67538","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2004,"docname":"CASE OF PROKOPOVICH v. RUSSIA","importance":1,"conclusion":"Preliminary objection rejected (estoppel);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant and her partner , PERSON , together moved into a flat provided by Mr PERSON \u2019s employer , a State enterprise . The applicant left the flat where she had previously lived to her daughter and her daughter \u2019s family .","Although the applicant and PERSON PERSON never married , from DATE onwards they lived together as husband and wife . They purchased all household items for the new flat jointly . DATE PERSON PERSON supported their family financially because the applicant was unemployed . According to the applicant , Mr PERSON \u2019s relatives and their neighbours considered them to be a family . Postcards and letters were addressed to PERSON and PERSON and the applicant received correspondence at the new address .","The applicant retained her residence registration at her old address . The applicant explains that she suffered from an ear ailment and wanted to remain under the observation of her former ear - specialist . Had she changed her residence registration , she would no longer have been entitled to visit the doctor practising in her former neighbourhood .","The applicant and Mr PERSON spent DATE in their country cottage . On DATE Mr PERSON returned to the town for DATE .","On DATE Mr PERSON died and his body was found by a neighbour . On DATE Mr PERSON was buried in the presence of his son and his CARDINAL sisters who had been summoned by a telegram .","The applicant was not notified of her partner \u2019s death or funeral service . She only learnt of it when she returned to the city TIME on CARDINAL DATE .","On DATE the applicant received a phone call from the local housing maintenance authority ( \u0436\u0438\u043b\u0438\u0449\u043d\u043e-\u044d\u043a\u0441\u043f\u043b\u0443\u0430\u0442\u0430\u0446\u0438\u043e\u043d\u043d\u043e\u0435 \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 ) , requesting an explanation as to why the flat was not empty . The applicant responded that she did not have formal residence registration in the flat , but she had lived there for DATE . On DATE a representative of the housing maintenance authority visited the applicant at the flat and drafted a report to the effect that the flat was not empty . The applicant was not given a copy of the report . The representative advised the applicant to secure her right to use the flat through a court .","On DATE the applicant filed a request with the housing maintenance authority to be given an occupation certificate ( \u043e\u0440\u0434\u0435\u0440 ) for the flat . Her request was refused because on DATE an occupation certificate had already been issued to ORG , the head of the local police department and hierarchical superior of Mr PERSON \u2019s son .","On DATE , on returning to the flat , the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry . The applicant states that the possessions were removed in the presence of Mr Valetov , Mr PERSON \u2019s son , several policemen in civilian clothing , and a representative of the housing maintenance authority . Once the removal was completed , the applicant was told to vacate the premises immediately . When the applicant refused to comply with the request , she was thrown out of the flat by force . The door was replaced and the applicant was not given keys .","On DATE the applicant filed a complaint against ORG with the prosecutor \u2019s office of LOC of GPE . The applicant requested a criminal investigation into her forcible eviction and the removal of her possessions . On DATE the prosecutor \u2019s office informed the applicant that her allegations were unsubstantiated and refused to open criminal proceedings .","On DATE the applicant filed a civil action against ORG and ORG . The applicant claimed that she should be recognised as a member of her late partner \u2019s household and asked for the occupation certificate issued to ORG to be declared void . The applicant submitted in evidence many witness statements by relatives , by neighbours living in the same block of flats and by DATE house neighbours , as well as personal photographs , letters , postcards and mail receipts .","On DATE the applicant complained to the GPE city prosecutor \u2019s office about the refusal to open a criminal investigation into Mr Valetov \u2019s actions . By a letter of CARDINAL DATE the applicant was informed that the prosecutor \u2019s office had reversed the refusal and ordered the LOC prosecutor \u2019s office to carry out an inquiry .","On DATE the LOC prosecutor \u2019s office reported that an inquiry had not established any indication of a criminal offence . On DATE , after the applicant had complained again , the GPE city prosecutor \u2019s office examined the matter and confirmed this conclusion .","On DATE ORG of GPE dismissed the applicant \u2019s civil action , finding as follows :","\u201c Under these circumstances , the court considers that it has been established in court that [ the applicant ] lived in the contested flat , which [ fact ] is corroborated by postcards addressed to PERSON and [ the applicant ] , a parcel delivery notice ; however , [ the applicant \u2019s ] residence was of a temporary nature .","The court has established that Mr PERSON , while still alive , did not recognise [ the applicant \u2019s ] tenancy right in respect of the contested flat ; [ the applicant ] did not produce evidence showing that Mr PERSON had recognised her right to tenancy . Besides , it has been established that [ the applicant ] retained her tenancy right in respect of [ her daughter \u2019s flat ] and that she had moved into the contested flat in breach of the procedure established by LAW ...","Furthermore , [ the applicant \u2019s ] assertion about the presence of her personal effects ( CARDINAL items ) in the contested flat ... is rebutted by the results of the inquiries carried out by LOC and GPE prosecutor \u2019s offices , as well as the housing maintenance authority report of DATE .","Under these circumstances , the court finds that [ the applicant ] has not acquired the tenancy right to [ the contested flat ] ... \u201d","The court grounded its findings on the statements of Mr PERSON \u2019s son and daughter - in - law ; however , the court rejected a statement by the applicant \u2019s daughter on the ground that she was an interested witness . It also determined that statements by CARDINAL neighbours produced at the hearing were not sufficient to establish that the applicant and PERSON PERSON had maintained a joint household .","The applicant appealed against the judgment . In her statement of the grounds of appeal of CARDINAL DATE the applicant pointed to a very substantial body of evidence proving her residence in the flat ( statements by witnesses , postcards , mail receipts , etc . ) . She alleged that her late partner \u2019s son had conspired with his police superior to acquire the flat , which explained why they had managed to obtain in DATE the decisions of ORG and of the housing maintenance authority , as well as the occupation certificate and residence registration stamp . She complained that she had been thrown out by force , contrary to the applicable provisions of LAW .","On DATE ORG upheld the decision of CARDINAL DATE . ORG endorsed the arguments of the first instance court .","NORP The applicant submitted several requests for supervisory review , all of which were turned down .","According to the applicant , the flat was privatised in DATE and sold to a third party .","The RSFSR Housing Code of DATE ( as amended on DATE , effective at the material time ) provided :","\u201c The tenant \u2019s family members shall include the tenant \u2019s spouse , children and parents . Other relatives , disabled dependants , and \u2013 in exceptional circumstances \u2013 other persons may be recognised as the tenant \u2019s family members if they live together with the tenant and maintain a joint household . \u201d","\u201c The tenant shall be entitled to accommodate in his living LOC , in accordance with the established procedure , his spouse , children , parents , other relatives , disabled dependants and other persons , subject to the written consent of all adult members of his family ...","The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are , or have been recognised as , members of the tenant \u2019s family ( LAW ) and that no other agreement on the use of the LOC has been signed between these persons , the tenant and his family members . \u201d","\u201c Eviction from occupied living premises in state or public housing shall only be permissible on the grounds set out in the law .","Eviction shall be ordered by a court ... \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91422","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF VAGAPOVA AND ZUBIRAYEV v. RUSSIA","importance":4,"conclusion":"Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants live in the village of NORP , in LOC of GPE .","The applicants are married . At the material time they lived together with their children at CARDINAL FAC , the village of NORP - Aul . CARDINAL of their sons , Mr PERSON GPE , was born in DATE .","At TIME on DATE someone knocked at the entrance door of the applicants\u2019 house . PERSON opened the door . Three armed men wearing military uniforms burst inside and beat PERSON with machine - gun butts . The men wore no masks . They did not identify themselves but the first applicant inferred that they belonged to the NORP military . At CARDINAL other servicemen entered the house .","The first applicant called her husband ; when he entered the room , CARDINAL of the servicemen ordered him to produce identity papers . When the second applicant did so , he saw a serviceman pointing a machine gun at PERSON .","The servicemen asked PERSON \u2019s family name , examined his identity papers and said that it was \u201c him \u201d . CARDINAL of the servicemen twisted the young man \u2019s arms behind his back and dragged him to the entrance door . The applicants asked them where they intended to take their son . The servicemen replied that the applicants had no reasons to worry . CARDINAL of them told the first applicant to give him PERSON \u2019s jacket and shoes but did not allow PERSON to dress .","The CARDINAL servicemen left the house and took PERSON to the street . The applicants followed them and saw an all - terrain UAZ vehicle without a registration number parked next to their gates . The servicemen put PERSON on the floor of that vehicle and then got in it . The ORG vehicle drove off . The applicants noticed an armoured personnel carrier ( \u201c APC \u201d ) parked behind UAZ . The ORG \u2019s registration number was illegible .","The ORG and ORG drove down FAC and eventually turned to FAC .","After a while the applicants heard a noise and realised that an ORG was ramming the gates of a neighbouring house . Later the applicants found out that servicemen had taken away their neighbour , Mr PERSON","The applicants have had no news of PERSON since DATE .","The Government did not submit their account of the circumstances of PERSON kidnapping .","At TIME on DATE the second applicant and relatives of PERSON came to ORG of the ORG ( \u201c ROVD \u201d ) . PERSON , the head of the ROVD , told them that CARDINAL policemen in an all - terrain UAZ vehicle had gone to PERSON to arrest PERSON and PERSON and that they had been assisted by NORP military servicemen in APCs . PERSON further said that the police had had no intention of arresting PERSON and that he was unaware of the latter \u2019s whereabouts . He suggested that NORP servicemen could have taken PERSON to the village of GPE NORP and confirmed that PERSON was detained in the ROVD .","In TIME of DATE the applicants learned that some villagers had seen CARDINAL APCs and an UAZ vehicle driving in the direction of ORG .","DATE PERSON was released from the ROVD and told the applicants the following . On his apprehension he had been first placed in an ORG ; at some point the servicemen had put a bag on his head and placed him in the UAZ vehicle . He could not tell whether PERSON was in that vehicle . The servicemen had taken him to the ROVD . In TIME of DATE they had taken the bag off his head and questioned him .","According to the applicants , a NORP military unit had its headquarters in a mill in the village of GPE NORP . The applicants visited the head of GPE local administration and asked him to help them to find their son ; he went to the mill , met the military servicemen and informed the applicants that PERSON had not been kept there .","Later Mr A. told the applicants that he had talked to servicemen of ORG ( \u201c ORG \u201d ) in PERSON and that they had assured him that PERSON had not been detained at the mill .","The applicants and their relatives repeatedly complained about PERSON \u2019s disappearance to various ORG agencies and officials . In particular , they applied to the NORP and NORP Presidents , ORG , ORG of the NORP President in ORG , GPE , ORG of the ORG , ORG , ORG of GPE and the head of the local administration of LOC . Most of the complaints were forwarded to the ORG at different levels .","On DATE the first applicant requested the prosecutor \u2019s office of GPE to help her to find her son . On DATE her complaint was forwarded to the prosecutor \u2019s office of LOC ( \u201c the district prosecutor \u2019s office \u201d ) .","On DATE the district prosecutor \u2019s office instituted an investigation into PERSON disappearance under LAW of LAW ( \u201c aggravated kidnapping \u201d ) and informed the applicants of the decision . The case file was assigned the number DATE .","On DATE the district prosecutor \u2019s office granted the second applicant the status of victim of a crime in case no . DATE .","On DATE the district prosecutor \u2019s office informed the first applicant that investigative measures were being taken to solve her son \u2019s kidnapping .","On DATE the first applicant requested the district prosecutor \u2019s office to question eyewitnesses to her son \u2019s abduction and Mr A.","On DATE the first applicant requested the prosecutor \u2019s office of GPE to search for her son more actively .","On DATE the district prosecutor \u2019s office informed the first applicant that the term of preliminary investigation in case no . DATE had been extended to DATE .","On DATE the first applicant requested the military commander of GPE to help her to establish her son \u2019s whereabouts .","On DATE and DATE the military commander of GPE ordered the military commander of LOC together with the heads of the ROVD and the ORG department , to carry out an inquiry into the facts complained of by the first applicant .","On DATE the prosecutor \u2019s office of GPE informed the first applicant that the preliminary investigation in case no . DATE was pending .","On DATE and CARDINAL DATE the military commander of LOC informed the military commander of GPE that the criminal investigation into PERSON kidnapping by unidentified armed men had been instituted and was under way . He also noted that various law - enforcement agencies had not arrested PERSON and had no information on his whereabouts .","On DATE and DATE the prosecutor \u2019s office of GPE forwarded the first applicant \u2019s complaints to the district prosecutor \u2019s office .","On DATE the military prosecutor \u2019s office of military unit no . CARDINAL informed the first applicant that the investigation in case no . DATE pending before the district prosecutor \u2019s office had been suspended and that military involvement in the crime had not been proven .","On DATE ORG informed the first applicant that the investigation in case no . DATE had been suspended on CARDINAL DATE for failure to identify those responsible and then resumed on DATE . It was ongoing under their supervision .","On DATE the district prosecutor \u2019s office informed the second applicant that the investigation in case no . DATE suspended on DATE had been resumed .","On DATE the district prosecutor \u2019s office informed the second applicant that the investigation had been resumed for DATE .","On DATE the district prosecutor \u2019s office granted the first applicant victim status .","On DATE the first applicant requested the district prosecutor \u2019s office to resume the investigation into her son \u2019s kidnapping and to allow her access to the investigation file .","NORP In the autumn of DATE case no . DATE was transferred to ORG for GPE . The applicants were not officially notified of it .","On DATE ORG of ORG for GPE informed the ORG representative that no access to the file in case no . DATE could be granted , as the investigation had not been completed , and that it had been suspended on DATE .","In a written statement addressed to ORG the first applicant noted that on an unspecified date she had participated in a confrontation with PERSON organised by the district prosecutor \u2019s office . In the course of the confrontation PERSON had been afraid to admit that he had seen another person in the UAZ on the night of his arrest . The first applicant had reproached him for cowardice and then PERSON had told the investigator that there had been a second detained person in the ORG but he had not seen his face . PERSON had signed an interview record containing his statement which was kept in the investigation file .","On DATE the district prosecutor \u2019s office received the second applicant \u2019s complaint concerning his son \u2019s abduction .","On DATE the district prosecutor \u2019s office instituted an investigation of PERSON abduction under LAW of LAW ( aggravated kidnapping ) . The case file was assigned the number DATE .","On unspecified dates the applicants were granted victim status in case no . DATE .","On an unspecified date the house at CARDINAL FAC was inspected as a crime scene . The investigators established that there was no mess inside the house and did not seize anything .","On an unspecified date the second applicant was questioned . He stated that at TIME on DATE CARDINAL unknown armed men had entered his courtyard and started knocking at the entrance door of the house . CARDINAL of the armed men had gone to PERSON house located in the same courtyard . PERSON had opened the door and QUANTITY armed men had burst in . They had hit PERSON with a machine gun butt and demanded the family members to produce identity papers . Having checked PERSON papers they had taken the young man outside , put him in an UAZ vehicle without registration numbers and driven away . The ORG was accompanied by an ORG with its registration numbers covered with mud . At the time of his son \u2019s abduction CARDINAL other APCs had blocked a road leading out of the village . PERSON had also been abducted by unknown men and taken away in the ORG . DATE PERSON had returned home and said that at some point he had been out in the UAZ vehicle in which another detainee had been kept . On DATE of his son \u2019s abduction the second applicant contacted PERSON , the ROVD head , who had told him that he had sent a ORG vehicle to the village of ORG to arrest PERSON and Mr PERSON and that ROVD servicemen had not arrested PERSON .","The first applicant and several other witnesses made identical statements . During her second interview the first applicant added that the armed men had taken away her son \u2019s identity papers and warm clothing that she had given them for PERSON .","DATE . On an unspecified date the head of the local administration was questioned . He stated that on DATE he had learned of PERSON abduction from a local policeman . Prior to that date he had not been acquainted with the GPE . The local administration had not received any complaints about PERSON behaviour before his kidnapping .","On an unspecified date PERSON was questioned . He stated that at TIME on DATE police officers had entered his house and asked him to go with them to the ROVD . At first he had been put in an ORG and then in an UAZ vehicle in which he had travelled with the policemen . Upon arrival to the ROVD he had been questioned and then released . Having returned home he had learned of PERSON kidnapping . He had been transferred to the ROVD on his own and had not seen PERSON on its LOC .","The investigators questioned several other villagers of ORG who made no significant statements .","On an unspecified date PERSON , the ROVD head , was questioned . He stated that he was not acquainted with the GPE . On DATE ROVD policemen and servicemen of the military commander \u2019s office of LOC had carried out a special operation to arrest ORG who had escaped . The servicemen had then questioned his brother , PERSON , and released him after a check . PERSON had not been arrested in the course of the special operation . The ROVD had sent an UAZ vehicle to carry out the special operation while the military commander \u2019s office had provided an ORG .","A number of the ROVD servicemen made similar statements . CARDINAL of them added that the applicants had contacted him in DATE in relation to PERSON kidnapping . The Government did not disclose the servicemen \u2019s identities .","The investigators sent a number of queries concerning PERSON to various ORG agencies and detention facilities . In reply they were informed that the young man had not been arrested or prosecuted .","The investigation in case no . DATE was pending . The applicants had been duly informed of all decisions taken during the investigation .","NORP Despite specific requests by ORG did not disclose any documents of the investigation file in case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .","For a summary of relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , \u00a7 CARDINAL , CARDINAL DATE ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90828","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2008,"docname":"D\u00d6G\u00dc\u015e AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicants , Mr PERSON , PERSON , PERSON , PERSON Seyhan ( D\u00f6g\u00fc\u015f ) and PERSON , are NORP nationals who were born in DATE , respectively , and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .","On DATE the applicants ' plot of land of CARDINAL m\u00b2 located in the LOC district of GPE was expropriated by a decision of the ORG Governor 's office for the construction of a school .","The applicants were paid MONEY ( TRL ) per square metre of their land as compensation .","On DATE the applicants brought an action before ORG for additional compensation .","On DATE the ORG partially granted the applicants ' request after having obtained CARDINAL expert reports on the value of the land .","On DATE ORG quashed the judgment of ORG and remitted the case to that court for a revaluation of the land .","On DATE the ORG partially granted the applicants ' request in the light of additional expert reports .","On DATE ORG quashed the judgment of ORG once again due to the lack of clarity of the expert reports and requested the revaluation of the land .","On DATE the ORG awarded the applicants additional compensation of GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL on the basis of additional expert reports , plus interest at the statutory rate , running from DATE .","On DATE ORG upheld the judgment of the first - instance court .","On DATE the administration paid the applicants ORG in additional compensation , together with interest ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96887","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2010,"docname":"TENCHEVA-RAFAILOVA v. BULGARIA","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , PERSON TenchevaRafailova , is a NORP national born in DATE and living in GPE .","In an order of DATE the Minister of Health announced , by reference to LAW ( see Relevant domestic and practice law below ) , a competition for the post of director of ORG in GPE . The order laid down the conditions which the candidates for the post had to fulfil , and the test and the interview which they had to pass . The competition announcement was published on DATE .","On DATE the Minister appointed a commission to make a preselection of the candidates . On DATE , having earlier laid down the manner in which the test and the interview were to be conducted , he appointed another commission to conduct those .","The applicant applied for the post . She and CARDINAL other candidates were pre - selected . The CARDINAL of them took part in the test and the interview . On DATE the applicant was informed that she had been ranked second . The candidate ranked fist was PERSON The Minister then issued a decision validating the results of the competition . The applicant objected to this decision but did not receive a reply .","On DATE the applicant lodged an application for judicial review of the Minister \u2019s decision with ORG . She argued that Dr PERSON did not meet all the criteria laid down in the order of DATE , because he had not had TIME of training in medical management .","In a decision of DATE ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , V \u043e. ) a threemember panel of ORG declared the application inadmissible . After analysing the matter in some detail , it found that the competition had not been governed by the special rules applicable to some other medical posts , but by the general provisions of the Labour Code relating to competitions . In competitions governed by LAW the Minister acted in a capacity of an employer , not as an administrative authority . Therefore , his decisions relating to the competition were not administrative decisions amenable to judicial scrutiny . This applied a fortiori to the commission which had organised the competition . The applicant could challenge the manner in which the competition had been conducted by means of a civil claim : she could seek a declaration that the contractual relationship between the Minister and PERSON had not come into existence because the competition had been tainted by irregularities .","CARDINAL judge dissented . He disputed the conclusion that the competition had been governed by the general provisions of LAW and not by special rules . However , even assuming that this had been so , in his view , by taking part in the competition the applicant had sought to exercise her right to work , recognised by LAW . Therefore , the refusal to appoint her to the desired post had to have a lawful basis . Such basis could be found in the fact that she had not been ranked first . However , this basis was valid only if the competition had been conducted lawfully . If it was tainted by irregularities , each candidate after the first was injured in the exercise of his labour rights , whereas those rights deserved protection from the courts . Since , in view of the former ORG and ORG caselaw ( see Relevant domestic law and practice below ) , the applicant would be unlikely to obtain such protection from the civil courts , as suggested by the majority , she was entitled to obtain it from the administrative courts , in order not to be faced with a denial of justice .","The applicant \u2019s subsequent appeal on points of law was rejected by a fivemember panel of ORG on DATE ( \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u044e\u043d\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u0432 ) . The court fully agreed with the threemember panel \u2019s reasoning , and went on to say that the dissenting judge \u2019s view that the competition had not been governed by LAW was erroneous , as was his view that the Minister \u2019s decisions in connection with employment competitions were subject to review by the administrative courts . Those decisions did not amount to an exercise of public powers affecting the rights of others , and were therefore not administrative decisions amenable to judicial scrutiny .","On DATE the applicant brought a civil claim against ORG , seeking a declaration that the competition had been tainted by irregularities and that the resulting employment agreement between ORG and Dr PERSON was unlawful . However , on DATE the ORG discontinued the proceedings . On appeal , its decision was upheld by ORG on DATE .","The applicant \u2019s subsequent appeal on points of law was rejected by ORG on DATE ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0447. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG , ORG \u0433. \u043e. ) . The court found that her claim did not concern an employment dispute , because such disputes were only those between the person who had come first in the competition and the employer . The remaining candidates did not have an employment relationship with the employer . The actions carried out by the employer during a competition were simply preliminary steps for the creation of an employment relationship ; they could not be challenged before the courts but merely before the employer whose decision was final . The court went on to say that the applicant did not have the requisite legal interest to seek a declaration that the employment of the person who had won the competition was unlawful . Such a declaration would have no impact on her legal sphere , because she could not expect to be employed unless the person ranked first failed to take up his or her duties .","Section CARDINAL(CARDINAL ) of the DATE Regulations on the organisation and the operations of ORG \u0437\u0430 \u0443\u0441\u0442\u0440\u043e\u0439\u0441\u0442\u0432\u043e\u0442\u043e \u0438 \u0434\u0435\u0439\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0446\u0435\u043d\u0442\u044a\u0440 \u0437\u0430 \u0441\u043f\u0435\u0448\u043d\u0430 \u043c\u0435\u0434\u0438\u0446\u0438\u043d\u0441\u043a\u0430 \u043f\u043e\u043c\u043e\u0449 ) issued by ORG , provides that the ORG \u2019s director is employed on the basis of a competition conducted in line with the provisions of LOC .","The manner in which employment competitions are to be conducted is governed by LAW to CARDINAL of the DATE LAW .","LAW provides that the posts to be filled by means of a competition must be set forth in a statute or a statutory instrument , or a decision of the employer . LAW stipulates that those posts can be filled only by means of a competition .","Article CARDINAL specifies the contents of the competition notice and the manner in which it should be published , as well as the rights of the candidates to get acquainted with the job description of the advertised post .","Candidates are admitted to the competition by a commission appointed by the employer ( LAW ) . Those who are not allowed to take part in the competition must be informed in writing about the reasons for that ; they may object before the employer , who rules on the matter by means of a final decision ( LAW ) . Another commission then conducts the competition ( LAW ) , by assessing the qualities of the candidates and ranking only those who have successfully passed the tests ( LAW ) . They have to be notified of that within DATE ( LAW ) . The individuals ranked first are considered as employed from DATE when they receive the notice ( LAW ) . They then have to take up their duties within DATE but for good reasons that time - limit may be extended to DATE ( LAW ) . If they fail to do so , the employment relationship with them is considered as nonexistent , and the individual ranked second is considered as employed ( LAW ) .","The former ORG and ORG have held that those who have lost employment competitions can not challenge those competitions in the civil courts . Such disputes are not employment disputes within the meaning of the Labour Code ; nor can they be examined pursuant to claims for declaratory judgment , because the persons concerned do not have the requisite legal interest to bring such claims , as they can not expect to be offered employment even if the competitions are declared unlawful ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043d\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. ORG , III \u0433. \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , ORG , III \u0433. \u043e. ) .","In a line of decisions beginning in DATE and DATE , ORG adopted the position , initially against the dissent of the same judge who dissented in the applicant \u2019s case , that decisions made by public bodies in connection with employment competitions conducted by them are not administrative decisions subject to judicial review , chiefly because those bodies do not act in their capacity of administrative authorities but are placed on an equal footing vis\u00e0vis the persons willing to be employed by them ( \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , V \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , V \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , V \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL \u0433. , ORG , V \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL \u0433. , PERSON , V \u043e. ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , ORG , V \u043e. ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , V \u043e. ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , ORG ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , ORG , V \u043e. ; \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , V \u043e. ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , ORG ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL \u0433. , ORG , ORG ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u0441\u0435\u043f\u0442\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-73291","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2006,"docname":"CASE OF TSONEV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 11;Not necessary to examine under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed","judges":"Christos Rozakis","text":["In DATE the applicant founded and became the chairman of ORG ( PERSON \u0440\u0435\u0432\u043e\u043b\u044e\u0446\u0438\u043e\u043d\u043d\u0430 \u043c\u043b\u0430\u0434\u0435\u0436\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u201c ) . He ran for parliament in DATE and in several later elections , unsuccessfully . Apparently he was also a presidential candidate in later elections on that party \u2019s ballot .","At a meeting held on DATE in GPE the applicant and fortynine other persons formed a party named ORG of GPE ( \u201e \u041a\u043e\u043c\u0443\u043d\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u043d\u0430 GPE \u201c ) . They adopted its constitution and elected its management organs . The applicant was elected the party \u2019s chairman . The party \u2019s aims , set out in the preamble to its constitution , were as follows :","\u201c ...","The main aim of ORG shall be the revolutionary change of the NORP society \u2013 democratisation of the society as a road to true power of the people . The primary goal of the party shall be the practical improvement of the socialist democracy \u2013 broadening of the direct participation of the people in the government of the state ; economic freedom of the enterprises within the framework of an economy changed and armed with the new philosophy of central planning ; active shift towards selfgovernment of the municipalities and the economic units as a transition towards selfgoverning communities within a society of social homogeneity .","...","ORG is convinced of the need for the union of the political parties , movements and eminent personalities into CARDINAL political coalition GPE National Cooperation \u2018 Civic Forum \u2019\u2019 , as the most proper way out of the societal antagonisms and divisions .","...","The ORG shall advocate a policy of rapprochement between peoples which are at different sociopolitical stages of development ; of deepening of the economic , political and cultural ties between them . ORG ultimate aim is the \u2018 constant improvement of FAC .","ORG is a party of a new type . It shall struggle for political power and shall work dedicatedly for the triumph of the communist ideal \u2013 building of a civil society with the economic nature of a society ruled by the principles of scientific socialism and the political nature of a society free of class divisions , political parties and movements : a society in which the vehicle of development shall be PERSON a universally developed and harmonious personality . \u201d","Articles DATE of the party \u2019s constitution dealt with membership in the party and the ORG rights and obligations . Article CARDINAL set out , inter alia , the grounds for expelling members .","Articles DATE of the constitution set out the organisational structure of the party and the powers of its organs .","Article CARDINAL of the constitution , which described the party \u2019s symbols , stated , inter alia , that they stood for the \u201c idea of a revolutionary sociopolitical order \u201d .","On DATE the applicant , in his capacity of chairman of the party , applied to ORG to have it registered .","The court held a hearing on DATE . It noted that the manner of liquidation of the party had not been provided for in its constitution , that the declarations submitted by the founders were incomplete , and that there were certain other irregularities . Accordingly , it adjourned the case for DATE with a view to allowing the party to remedy the deficiencies it had spotted .","NORP In order to rectify the deficiencies noted by the court , the applicant and the other founders held another meeting on DATE and decided to amend the party \u2019s constitution . On DATE they submitted the amendments and updated declarations to the court , which admitted them in evidence .","A second hearing took place on DATE .","In a decision of DATE ORG refused to register the party , holding :","\u201c In the course of the proceedings the court found that the applicants have failed to comply with the requirements of sections CARDINAL , DATE and DATE ) of LAW [ of DATE ] , in order to make the entering of the party in the register possible . [ The case - file contains ] TIME from the general meeting of the [ party ] held on DATE , which are not duly signed . The introduction to the party \u2019s constitution contains aims which are identical to the aims of other , already registered parties . The party \u2019s structure is not fully and clearly set out [ in its constitution ] ; the powers of its different organs are not clearly described , are repeated in the different provisions of the party \u2019s constitution and thus the powers [ of the party \u2019s organs ] are not clearly spelled out . The party \u2019s constitution does not specify the manner of termination of membership in the party . \u201d","On DATE the applicant appealed to a threemember panel of ORG .","The court held a hearing on DATE .","On DATE the threemember panel of ORG upheld the lower court \u2019s decision . It opined :","\u201c The name of ORG of GPE formally does not already exist in the register [ of political parties ] , but it does not set it apart from an already registered party \u2013 [ ORG ] , as required by section CARDINAL(CARDINAL ) of the [ LAW of DATE ] , because in fact it contains the same words ; their rearranging does not change the purport and the essence of the political party . This name does not individualise it and does not clearly set it apart from another , already registered party .","[ The party \u2019s ] aims , as indicated in part I of its constitution ... are contrary to section CARDINAL(CARDINAL ) of the [ Political Parties Act of DATE ] .","The manner of termination of membership in the party is not set out [ in its constitution ] , contrary to section CARDINAL(CARDINAL ) of the [ LAW of DATE ] . \u201d","On DATE the applicant lodged a petition for review with a fivemember panel of ORG .","A hearing was held on DATE .","NORP In a final decision of CARDINAL DATE the fivemember panel of ORG dismissed the petition in the following terms :","\u201c The impugned decisions should not be quashed first and foremost because the name of the party \u2013 ORG of GPE \u2013 does not set it apart from other parties , in violation of section CARDINAL(CARDINAL ) of the [ LAW of DATE ] , as correctly found by the CARDINAL courts below . The name is an individualising feature of the party and for that reason it should not duplicate [ the names of ] other parties , organisations and movements , which may ... engage in political activities . The rule of section CARDINAL(CARDINAL ) of the [ LAW of DATE ] concerning the party \u2019s name sets the bounds of the ORG autonomy and initiative in choosing the name . [ The founders ] must see to it that from a grammatical and a logical point of view there is no duplication of the purport and the essence [ of the name ] with the name of another party .","In the case at hand the separate words which constitute the party \u2019s name , on the one hand , and the particular wording used , on the other , although not identical to those used in other existing parties\u2019 names , convey a similar meaning . The name \u201c ORG of GPE \u201d uses the ideological term \u201c communist \u201d , which term , viewed in a historical context , resembles a party from the not so distant DATE ORG DATE and also resembles ORG ... even though there is a rearrangement of the words ...","Regarding the contents of the party \u2019s constitution , as required by section CARDINAL(CARDINAL ) of the [ LAW of DATE ] , the courts [ below ] have correctly found that the constitution does not indicate the manner of termination of membership in the party . [ The constitution sets forth ] rules about the admission [ of new members ] , about the ORG rights and the obligations and the [ penalties which may be imposed on them ] , but there are no rules regarding the termination of the membership . Likewise , the powers of the [ party \u2019s ] organs and its organisational structure are chaotically scattered throughout its constitution .","The [ courts below ] have correctly found that the aims of the party are contrary to section CARDINAL(CARDINAL ) of the [ LAW of DATE ] . Part I of the constitution indicates that the main aim of the party [ is ] the \u2018 revolutionary change of NORP society\u2019 and the support for the idea of a revolutionary sociopolitical order \u2013 part V of the constitution . \u201d","It appears that in GPE CARDINAL other political parties are registered with the word \u201c communist \u201d in their names , e.g. ORG ( PERSON \u0435\u0434\u0438\u043d\u043d\u0430 \u043a\u043e\u043c\u0443\u043d\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u201c ) , ORG of the NORP ( PERSON \u043a\u043e\u043c\u0443\u043d\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u043d\u0430 \u0431\u043e\u043b\u0448\u0435\u0432\u0438\u043a\u0438\u0442\u0435 \u201c ) , Renewed ORG ( PERSON \u043a\u043e\u043c\u0443\u043d\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u201c ) , ORG \u201c PERSON ( PERSON \u043a\u043e\u043c\u0443\u043d\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u2018 GPE \u0414\u0438\u043c\u0438\u0442\u0440\u043e\u0432\u2019 \u201c ) , ORG \u201c LOC \u201d ( PERSON \u043a\u043e\u043c\u0443\u043d\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0430 \u043f\u0430\u0440\u0442\u0438\u044f \u2018 \u0420\u043e\u0434\u0438\u043d\u0430\u2019 \u201c ) .","In DATE the ORG registered a party named ORG . On DATE it changed its name into ORG of GPE , which fact was likewise registered by ORG in a decision of DATE , and published in ORG on DATE ( \u0414\u0412 , \u0431\u0440. CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. ) .","The relevant provisions of the LAW of DATE read as follows :","\u201c CARDINAL . Citizens may freely associate .","Organisations whose activity is directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited .","The law shall specify the organisations which are subject to registration , the manner of their dissolution , as well as their relations with the ORG . \u201d","The relevant provisions of LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043f\u043e\u043b\u0438\u0442\u0438\u0447\u0435\u0441\u043a\u0438\u0442\u0435 \u043f\u0430\u0440\u0442\u0438\u0438 \u201c ) , as in force at the relevant time , read :","\u201c No political party shall be founded :","[ which is ] aimed against the sovereignty and the territorial integrity of the country , [ or ] the rights and freedoms of its citizens ;","whose aims are contrary to the LAW and the laws of the country ;","NORP [ which is based ] on ethnicity or religion , or [ aims ] to spur racial , national , ethnical or religious hatred ;","NORP which advocates a fascist ideology , or tries to achieve its goals through violence or other unlawful means . \u201d","\u201c A political party shall be formed at a founding meeting upon the agreement of CARDINAL enfranchised citizens . The founding meeting shall adopt its constitution and elect the management organs . \u201d","\u201c The constitution of a political party shall set forth : its name , which shall set it apart from other parties ; its seat ; its aims and objectives ; the manner of becoming a member and of terminating the membership ; the rights and obligations of the members ; the managing organs ; the party \u2019s symbols ; the sources of financing , as well as the manner and conditions for the party \u2019s liquidation . \u201d","\u201c CARDINAL . The political party shall be entered in a separate register kept by ORG , on application by the organ which represents it according to its constitution .","NORP The application shall be accompanied by copies of : TIME of the founding meeting , the party \u2019s constitution , and a list of the names and addresses of the members of the party \u2019s managing organ , which represents it according to its constitution .","... \u201d","\u201c A political party ceases to exist :","...","when it is dissolved by decision of ORG [ of Cassation ] . \u201d","\u201c CARDINAL . [ A political party may be dissolved ] upon the proposal of ORG , if the party engages in activities which run counter to section CARDINAL [ of this Act ] .","NORP The decision of ORG [ of Cassation ] to dissolve a party may be appealed to a CARDINAL - member panel [ of that court ] . \u201d","By section CARDINAL ) and ( CARDINAL ) of LAW of DATE , in force until DATE , a party could be dissolved by decision of ORG on the application of a public prosecutor if , inter alia , the party systematically contravened the LAW \u2019s provisions , its activities ran counter to the provisions of the LAW , or it had been declared unconstitutional by ORG . By section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW of DATE , presently in force , ORG , acting pursuant to the application of a public prosecutor , may order the dissolution of a party if its activities systematically contravenes the LAW \u2019s requirements or the provisions of the LAW ."],"violated_articles":["11"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22093","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2000,"docname":"ORGANISATION NATIONALE DES SYNDICATS D'INFIRMIERS LIB\u00c9RAUX (ONSIL) v. FRANCE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant is a trade union whose head office is in GPE and whose object is to defend the interests of self - employed nurses . It is represented before the ORG by Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","Since the enactment of the PERSON of DATE , relations between members of the medical profession , notably nurses , and the social - security bodies have been governed by collective bargaining agreements made between the trade unions representing the various branches of the profession and the social - security bodies . The agreements do not become effective until they have received relevant ministerial approval .","After the ORG d\u2019\u00c9tat had twice quashed decrees approving the collective bargaining agreement applicable to the nursing profession ( in judgments of CARDINAL DATE and DATE ) a third agreement was entered into on DATE and approved by interministerial decree on DATE .","Immediately after that agreement was signed , the applicant and several other trade unions expressed opposition to it and indicated that they intended to lodge an appeal in the courts once the ministerial decree approving the agreement had been published in ORG .","On DATE ORG adopted PERSON no . CARDINAL - CARDINAL implementing various health , welfare and regulatory measures . LAW provided : \u201c The ... decree of DATE approving the national collective bargaining agreement entered into with the nursing profession on DATE is hereby ratified \u201d .","On DATE the applicant lodged an application for judicial review with the ORG d\u2019\u00c9tat seeking an order quashing the decree of DATE as being ultra vires and an order for the ORG to pay it MONEY for the costs incurred . In its written submissions of DATE the applicant maintained in particular that LAW no . CARDINAL contravened Article CARDINAL \u00a7 CARDINAL and LAW .","On DATE the ORG d\u2019\u00c9tat dismissed that application on the ground that : \u201c by virtue of the provisions [ of PERSON no . QUANTITY ] , which entered into force before the application was lodged , the lawfulness of the decree which the applicant seeks to have quashed can not in principle be challenged by way of judicial review as being an ultra vires act \u201d . As to the argument that the statute concerned was incompatible with the provisions of the Convention , the Conseil d\u2019\u00c9tat held that challenging the lawfulness of the impugned regulatory measure did not come within the scope of the ORG relied on ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90165","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2008,"docname":"CASE OF DZIECIAK v. POLAND","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lived in GPE .","On DATE the applicant was arrested by the police . On DATE ORG ( S\u0105d Rejonowy ) decided to place the applicant in pre - trial detention in view of the reasonable suspicion that he had been involved in drug trafficking as part of an organised criminal gang . In particular , the applicant was suspected of having participated in the recruitment of persons used for international drug trafficking .","The applicant \u2019s pre - trial detention was extended on several occasions .","On DATE the applicant was indicted before ORG .","The applicant , who had suffered CARDINAL heart attacks in DATE , submitted that his health deteriorated after his arrest . On DATE he consulted a cardiologist . On DATE ORG ( PERSON ) decided that there were no reasons militating against the applicant \u2019s detention , provided that the detention centre in which he was detained possessed a hospital wing .","In DATE the applicant and several co - accused were indicted before ORG ( PERSON ) .","On DATE the applicant consulted a non - prison doctor who prescribed a coronary angiography ( koronografia ) . The applicant submitted that he had not been informed of this .","On DATE ORG again found that the applicant could be held in a detention centre if it had a hospital wing .","On DATE the applicant was again examined by a nonprison doctor who confirmed the need for a coronary angiography . The applicant submitted that the prison authorities refused to carry out this procedure . He complained about this to ORG in GPE .","DATE the applicant was treated in the hospital wing of the detention centre .","On DATE ORG extended the applicant \u2019s detention , finding that the grounds for it remained valid . On DATE the court dismissed the applicant \u2019s request for release finding that the applicant \u2019s state of health was not incompatible with detention .","The applicant \u2019s detention was subsequently extended by ORG on DATE , on the ground of the reasonable suspicion against him .","In DATE the trial court decided to return the case to the prosecutor and to join the investigation to another case concerning organised crime . On DATE ORG ordered the applicant \u2019s detention in connection with this set of criminal proceedings .","On DATE the prison authorities replied to ORG regarding the applicant \u2019s health care . The authorities stated that the applicant had been examined by doctors on several occasions and that the cardiologist had not ordered the coronary angiography but had only suggested it as one of several possible treatments . The applicant \u2019s state of health did not preclude detention and he could receive any necessary treatment in the hospital wing of the detention centre . They reiterated that the applicant was detained in a detention centre which had hospital facilities and that , if necessary , he would be hospitalised .","On DATE the applicant was transferred to the FAC detention centre , which had no hospital wing . The applicant argued that this was in reprisal for his complaint to ORG . In DATE the applicant lost consciousness and was transferred to FAC , where he remained for DATE .","On DATE and DATE ORG , upon an application from ORG ( Prokurator Okr\u0119gowy ) , further extended the applicant \u2019s pretrial detention , relying on the reasonable suspicion that he had committed the offences in question and on the complexity of the case , which justified the continuation of the investigation .","On DATE ORG ( S\u0105d Apelacyjny ) , on an application from the prosecutor , decided to further extend the applicant \u2019s detention until DATE . In addition to the existence of a reasonable suspicion that the applicant had committed the offences , the court relied on the complexity of the case , the severity of the anticipated penalty and the need to secure the proper conduct of the investigation . Finally , the court found no evidence that the applicant , and CARDINAL other co - accused , should be released from detention due to their various health conditions . The court added , however , that it was for the prosecutor to order a medical examination of the accused and to reach a decision regarding their further detention .","On DATE ORG ( S\u0105d Najwy\u017cszy ) decided to amend ORG decision and extended the applicant \u2019s detention pending the outcome of the investigation until DATE .","On DATE ORG , on another application from the appellate prosecutor , decided to extend the applicant \u2019s pre - trial detention , and that of CARDINAL co - accused , until DATE . The court repeated the reasons given in previous decisions .","On DATE a coronary angiography and other tests were carried out in ORG . The applicant submitted that the results of the tests provided evidence of his very serious state of health and proof that his life was in danger .","On DATE ORG dismissed the applicant \u2019s appeal against the decision of DATE extending his detention . The appellate court , referring to the applicant \u2019s state of health , established that he could be detained and treated in the prison hospital until DATE surgery .","On DATE the applicant was examined by doctors from ORG , who ordered that he should undergo heart surgery in a non - prison hospital . A medical certificate of DATE , issued by ORG , confirmed the need to carry out a coronary artery bypass graft ( ORG , a so - called heart bypass operation ) .","On DATE the applicant was transferred to ORG in GPE , as the surgery was to be carried out in ORG .","On numerous occasions the applicant applied to be released from detention . He justified these requests by referring to the state of his health and the fact that his imminent surgery could not be carried out in the hospital wing of the detention centre but necessitated his release from detention . Nevertheless , on DATE the court further extended the pretrial detention of the applicant and his co - accused . The decision did not contain any particular reference to the applicant \u2019s health .","On DATE the applicant was indicted before ORG .","NORP In DATE the applicant was examined by doctors in ORG , who agreed to carry out laser heart surgery on the applicant .","On DATE ORG again extended the applicant \u2019s detention . The court found :","\u201c In the instant case , [ the applicant ] was arrested on DATE and detained on remand on DATE by the decision of ORG .","On DATE the pre - trial detention of CARDINAL co - accused was extended until DATE . The procedural grounds therefore justify the extension of detention also with respect to [ the applicant ] until DATE . Moreover , there are no grounds for lifting his pre - trial detention under LAW .","As [ the applicant \u2019s ] pre - trial detention has lasted for DATE and DATE , it is necessary to schedule the date of the hearing and to plan the trial so that the provisions of the [ NORP Code of Criminal Proceedings ] and LAW ] are respected - that is , the right to a trial within a reasonable time . \u201d","The applicant lodged an appeal against the decision but on DATE ORG dismissed it .","ORG scheduled laser heart surgery on the applicant and ordered that he be admitted to ORG . The applicant \u2019s representative submitted that the applicant was never informed of this . The Government submitted that the surgery could not take place on that date on account of prolonged renovation work to ORG .","DATE and DATE the applicant was hospitalised in the GPE prison hospital for pneumonia .","On DATE ORG sent a letter to the applicant , informing him that the second appointment for his laser heart surgery had been scheduled for DATE . The applicant submitted that the letter was delayed and that he had been informed about it after the date in question . From the copy of the envelope submitted by the applicant \u2019s wife , it appears that the letter was posted on DATE ; a stamp indicates that it was delivered to the registry of ORG on DATE [ Sekretariat , NORP \u015aledczy PERSON ; CARDINAL PERSON . DATE ] . The envelope is marked \u201c registered post - v. urgent \u201d [ polecony DATE b. pilne ] and contains the following stamp \u201c Censored CARDINAL \u201d [ Ocenzurowano ] . The Government maintained that this letter never arrived at FAC and that the authorities had not been aware that the Institute had scheduled the date of the applicant \u2019s surgery .","ORG again rescheduled the date of the applicant \u2019s heart surgery and gave him an appointment for DATE . It appears that this notification was delivered to the detention centre by the applicant \u2019s lawyer in person .","On DATE the applicant was examined by ORG , which gave a decision on DATE . The decision contained a reference to his medical record and the information that he would be admitted to undergo surgery at ORG on DATE . The decision states :","\u201c CARDINAL . The ORG \u2019s decision -","It is necessary to change the preventive measure .","The grounds for the decision -","The patient requires surgical treatment at ORG . The date of admittance to the ORG is scheduled for DATE . Further ... detention is a threat to the patient \u2019s health . \u201d","This decision of ORG was not sent to the trial court until DATE ( see paragraph CARDINAL below ) .","On DATE ORG extended the pretrial detention of the applicant and the other co - accused for DATE . The court did not examine the applicant \u2019s state of health or any circumstance that would concern him individually .","On DATE Dr M.M. , from the hospital wing of ORG , issued a medical certificate , which was sent by fax to the trial court on DATE . The certificate stated :","\u201c The prisoner \u2019s complaints :","Has been treated for DATE for coronary thrombosis , hypertension . Had suffered heart attacks . Recent effort - related chest pain .","Established during examination :","Conscious , sound blood circulation and respiration ...","Diagnosis :","Ischaemic heart disease , has had heart attacks , currently has relatively sound blood circulation . Had pneumonia .","Conclusions :","At present he can participate in the court \u2019s hearings . The patient was examined by ORG on DATE . \u201d","On DATE the trial against the applicant and CARDINAL coccused started before ORG . The applicant was brought to the courtroom to attend the hearing of DATE . At the hearing the court informed the applicant \u2019s lawyer that a medical certificate of CARDINAL DATE had been submitted on DATE . In the light of the certificate , the court dismissed the applicant \u2019s request to sever the charges against him , holding that his health did not justify a separate examination of the case .","The applicant attended the second hearing on DATE .","At the next hearing , held on DATE , the applicant was heard and the statements given by him at the investigation stage were read out . The trial court adjourned the hearing until DATE .","On DATE the applicant was brought to the court room , where he lost consciousness before the hearing began . An ambulance was called . At TIME he was transferred back to the hospital wing of ORG . He was examined by a doctor , who considered that he did not require hospitalisation but was unfit to participate in the hearing on DATE . After examination in the hospital wing the applicant was transferred to his cell in the detention centre .","The hearing started later than scheduled , due to the commotion caused by the applicant \u2019s fainting and the arrival of the ambulance . The presiding judge enquired about the applicant \u2019s health by calling ORG and ORG . From the latter the judge learned that the applicant \u2019s admittance to the ORG was scheduled for DATE . The judge was also informed by the detention centre \u2019s authorities that the applicant had been examined by ORG on DATE but that the report had not yet been confirmed by the relevant medical authorities , and thus could not be submitted to the court . Nevertheless , at the second break in the hearing , ORG sent the presiding judge , by fax , ORG decision , which concluded that the applicant \u2019s continued detention represented a risk to his health ( see paragraph CARDINAL above ) .","On DATE at TIME the applicant was examined by a doctor from the hospital wing of the detention centre on account of a worsening of his health . The doctor issued a certificate stating that the applicant did not require hospitalisation but was unfit to participate in the hearing on DATE .","At TIME on DATE the applicant was taken from his cell to the hospital wing of ORG ; he was unconscious . The medical team managed to resuscitate the applicant , so that he began breathing on his own again and his heart beat was restored . They also attempted to locate a hospital that would admit him . The applicant was taken in a serious condition to hospital in FAC , GPE , where he died on DATE without regaining consciousness .","On DATE the trial court decided to examine the charges against the applicant in a separate set of proceedings , as his health prevented him from participating in the hearings . The court further decided to release the applicant from detention on DATE and to transfer him on that date to ORG for surgery .","On DATE ORG decided to discontinue the criminal proceeding against the applicant on the ground that he had died on DATE . On DATE the trial court convicted CARDINAL defendants and sentenced them to prison terms varying from DATE .","DATE . On DATE the applicant \u2019s wife requested ORG to start an investigation into the applicant \u2019s death . On DATE ORG made a similar request , informing the prosecutor that the applicant had not received adequate medical care in FAC .","On DATE a post - mortem examination of the applicant \u2019s body was carried out by ORG ( PERSON w GPE ) . The examination concluded that the cause of the applicant \u2019s death was acute coronary insufficiency , given the advanced stage of his heart disease .","On DATE ORG initiated an investigation into the allegations that the applicant \u2019s death had been caused by the failure of the doctors in FAC to secure him adequate medical care .","On DATE the prosecutor heard the applicant \u2019s wife . She described how her husband \u2019s health had constantly deteriorated , as observed by her during her regular bi - monthly visits . His serious health problems started when he was transferred to FAC , where there was no hospital facility . After he lost consciousness he spent DATE in a hospital , and at that time he underwent a coronary angiography . On his return to ORG , his health deteriorated further and he had been coughing badly , and suffered from chest pain . His complaints , however , were dismissed on each occasion by the prison doctor , a general practitioner . Only after collapsing DATE was he transferred to ORG , where he was diagnosed with pneumonia and treated accordingly . At that time it was recommended that he undergo heart bypass surgery . During the hearings which started DATE before his death the applicant was in very poor health . The applicant \u2019s wife also testified that he had received notification about the first scheduled operation in ORG , set for DATE , but only after that date . She went to ORG to obtain the second appointment for DATE , which she personally transmitted to the applicant \u2019s lawyer so that he could notify the detention centre . However , the applicant passed away before that date .","On DATE the prosecutor heard the Head of ORG . She testified that the applicant had stayed in her ward until DATE because he had pneumonia and was being prepared for a bypass operation , to be carried out in ORG . Since the operation could not be carried out at that time , the applicant was returned to his cell in the detention centre .","On the same date the prosecutor questioned a doctor working at the prison hospital , who was consulted by the applicant in DATE , on CARDINAL occasions in DATE , on CARDINAL occasion in DATE and on DATE .","On DATE the prosecutor heard another doctor , employed in the prison hospital , who had treated the applicant during his stay in the hospital , that is , until DATE . Like the previous witness , this doctor did not believe that the applicant had been simulating , had complained excessively or had not been following the doctor \u2019s recommendations .","On DATE and DATE the prosecutor heard PERSON who worked in the hospital wing of ORG . He stated that , according to a note made by him in the applicant \u2019s medical record , on DATE he learned that ORG had decided to admit the applicant . He forwarded this request to the prison authorities , as it was necessary to obtain a decision from ORG . The prosecutor showed the witness a copy of the letter from ORG of DATE , stating that the date of the applicant \u2019s admittance to hospital was scheduled for DATE . The witness was unable to ascertain whether he had previously seen this letter or whether his annotation in the applicant \u2019s medical record of DATE had been made in connection with it .","On DATE a doctor from ORG was heard by the prosecutor . She testified that in DATE ORG requested the Institute to examine the applicant . He was diagnosed with coronary thrombosis and recommended for a laser operation . The witness stated :","\u201c On DATE a letter was sent to the detention centre with a request to stop administering aspirin to Mr GPE ; it also set the date of his admittance to ORG . The patient did not show up . Again the patient was invited for DATE he did not turn up . The third summons was for DATE \u2013 he did not show up . We received information that the patient had died on DATE ( we received this information from a judge ) . As far as I know the patient did not show up because he had not obtained leave from the detention centre , and we had not agreed to conduct the operation in the presence of guards as we had no conditions for that ( moreover , we had repair work going on at that time ) . \u201d","The witness also stated that the applicant \u2019s wife , who had apparently learned about the planned date of the operation , had informed the hospital administration about the difficulties experienced by the applicant in obtaining leave from the detention centre . The hospital \u2019s administration had contacted ORG and learned that the decision on whether or not to grant the leave would be taken before DATE . The doctor also confirmed that a judge from ORG had called the hospital on DATE , enquiring whether the applicant had an operation scheduled and saying that a fax with this information had been sent to the court .","Finally , on DATE the prosecutor questioned another doctor from the prison hospital , who had treated the applicant on CARDINAL and DATE . He testified that on DATE the applicant was brought back from the court hearing at TIME suffering from chest pain . He conducted an ORG test and administered medication so that the applicant \u2019s condition was stable . The witness considered that the applicant had not required hospitalisation but issued a certificate stating that he should not attend the hearing on DATE . At CARDINAL p.m. on DATE the applicant was brought from his cell on a stretcher ; he was unconscious , had no heart beat and was not breathing . After resuscitation his heart beat was restored and he began to breathe independently . The witness ordered an ambulance and contacted hospitals to find one which would admit the applicant . Finally , the fourth hospital , located on FAC , agreed to admit the applicant .","The prosecutor also requested ORG to clarify when the letter of DATE from ORG , informing the authorities of the applicant \u2019s scheduled admittance on DATE for surgery , had reached the detention centre . According to the Government , the Head of ORG replied that there was no evidence that such a letter had ever arrived at the detention centre ; however , the letter informing about DATE for surgery , scheduled for DATE , had reached the detention centre on DATE .","On DATE ORG confirmed to the prosecutor that the letters indicating the dates of the applicant \u2019s admittance to ORG DATE and DATE ) had been sent by ordinary mail to ORG .","On DATE the prosecutor ordered the ORG to prepare an expert opinion . The prosecutor asked the experts to answer following questions :","\u201c CARDINAL . Was the death of PERSON a consequence of :","- unsuccessful medical treatment for which nobody can be held responsible ( niezawinione niepowodzenie lekarskie ) ,","- medical malpractice ,","- failure to apply due diligence during his medical treatment at FAC and hospital in FAC ,","- other circumstances , different from the above ?","Did the state of health of PERSON allow him to remain in the detention centre and to participate in the trial , including lengthy court hearings ? \u201d","In DATE the experts submitted their opinion to the prosecutor . The experts relied on the applicant \u2019s medical file and on the post - mortem examination . They concluded as follows :","\u201c ... in answer to question no . CARDINAL , we consider that [ the applicant \u2019s ] death was the consequence of unsuccessful medical treatment for which nobody could be held responsible . Having analysed the file , we find that there was no medical malpractice during the period between the applicant \u2019s arrest and his death . On the basis of the submitted documents we can not perceive any lack of diligence during his treatment in the detention centre and in hospital in FAC . We have , however , reservations about the fact that the date of the applicant \u2019s cardio - surgical intervention was rescheduled twice ( a conclusive elucidation of the grounds for this \u2018 ORG is not within the competence of the undersigned experts ) . Nevertheless , the type and extent of changes in the heart muscle , as established by the post - mortem examination , do not allow [ us ] to conclude if , and to what extent , the surgery would have led to improvement in the functioning of the applicant \u2019s left ventricle of the heart .","Ad CARDINAL .","In response to the second question , it should be noted that when the applicant \u2019s health was clearly deteriorating and in connection with the approaching surgery , ORG gave a decision on the necessity of changing the preventive measure , as a continued stay in detention constituted a threat to the patient \u2019s health . On the basis of the documents collected , it is not possible to establish the period when medical indications appeared indicating a need to change the preventive measure .","We believe that it is impossible to establish beyond doubt a causal link between the deterioration in the applicant \u2019s health and his participation in the trial . \u201d","On DATE ORG discontinued the investigation . The decision reads :","\u201c On DATE the ORG informed ORG of the possibility that an offence had been committed under LAW . It appears from the request that on DATE the applicant was called from his cell for transferral to the court hearing , and that his state of health subsequently deteriorated . Attempts were made until TIME to resuscitate him in the hospital of the detention centre . In TIME he was taken to hospital in FAC where , on DATE , he died .","Following the post - mortem examination the expert from ORG established that the cause of [ the applicant \u2019s ] death had been acute coronary insufficiency , given the advanced stage of [ his heart disease ] . In the expert \u2019s opinion there was no evidence that would allow [ him ] to establish that the applicant \u2019s pneumonia had had a bearing on his death . [ The Head of the Prison Hospital ] testified that [ the applicant ] had been on her ward DATE he was admitted on DATE with symptoms of pneumonia and was released on DATE in good condition . He was again admitted to the hospital on DATE and he was transferred to hospital in FAC after TIME","An expert opinion from the ORG was ordered for the purpose of establishing the circumstances of [ the applicant \u2019s ] death .","From the submitted expert opinion it appears that the applicant \u2019s death was a consequence of unsuccessful medical treatment for which nobody could be held responsible . Having analysed the file the experts were unable to find evidence of medical malpractice during the period between the applicant \u2019s arrest and his death , could not perceive any [ missing : lack of diligence ] during his treatment in the detention centre and subsequently in hospital in FAC . In the experts\u2019 view it had not been possible to establish beyond doubt a causal link between the deterioration in the applicant \u2019s health and his participation in the trial .","In the light of the above it must be established that the evidence gathered does not allow the conclusion that [ the applicant \u2019s ] death was a consequence of the actions or omissions of third persons .","Accordingly it has been decided as above . \u201d","The applicant \u2019s wife , supported by ORG , lodged an appeal against this decision . She complained that the prosecutor had failed to examine thoroughly the allegations raised in her request to initiate the proceedings . In particular , there had been no examination of why , having lost consciousness in the court room on DATE , the applicant was not immediately taken to hospital but was returned to the detention centre .","On DATE ORG dismissed the appeal , reiterating the prosecutor \u2019s findings that the applicant \u2019s death was \u201c unsuccessful medical treatment \u201d . The court had not made any new findings relating to the course of the events . It noted that the information about the surgery scheduled for DATE had not reached ORG . However , on DATE the detention centre received information that the surgery could take place on DATE , provided that the applicant received authorisation . The court further established that on DATE ORG had given a decision finding that a further stay in detention would pose a risk for the applicant \u2019s health ; that ruling had been validated by the Head of the Panel on DATE . Previously , on DATE , the Head Doctor of ORG had ordered that the decision be supplemented by a copy of the results of the coronary angiography . On DATE the ORG \u2019s decision was faxed to the trial court , at whose disposal the applicant remained . The court concluded :","\u201c Taking into account the above circumstances , and the fact that it was not possible to establish a causal link between the applicant \u2019s participation in the trial [ and the deterioration in his health ] or to establish whether , and to what extent , the surgery would have led to an improvement in the functioning of the applicant \u2019s left ventricle of the heart , it must be concluded that the prosecutor was right in finding no evidence in the circumstances of the instant case pointing to the commission of an offence , and that the prosecutor \u2019s decision was based on LAW . Accordingly , the impugned decision shall be upheld . \u201d","On DATE the applicant \u2019s wife lodged a civil claim with ORG , seeking compensation in connection with her husband \u2019s death . She maintained that her late husband had not received proper medical treatment in the detention centre and had been obliged to participate in the hearings despite his poor state of health . The applicant \u2019s wife applied for legal aid , submitting that her DATE income , comprising her salary as a cleaning lady and disability benefit for her daughter , who suffered from cerebral palsy , was equivalent to FAC . The applicant \u2019s representative submitted that the court had exempted her from paying court fees but had dismissed her application for legal aid .","On DATE ORG dismissed the claim . The court examined the treatment that the applicant had undergone since his arrest in DATE and the prosecutor \u2019s case file concerning the investigation into the applicant \u2019s death . It found that ORG could not be held liable for damage , as it had not been established that the applicant \u2019s death had been caused by unlawful actions or omissions of the detention centre officials . In addition the court found that the applicant had failed to prove that her financial situation had deteriorated as a result of her husband \u2019s death .","The applicant \u2019s wife appealed against the judgment .","DATE . On DATE ORG dismissed the appeal . The court agreed with the first - instance court \u2019s assessment that the applicant \u2019s wife had not sustained damage as a consequence of her husband \u2019s death , and that her claim had thus been ill - founded . The court also dismissed as unsubstantiated the applicant \u2019s complaints that the prison authorities had contributed to her husband \u2019s death by failing to provide him adequate medical care .","The applicant failed to lodge a cassation appeal with ORG against that judgment . She did not apply to a court to have a legal - aid lawyer appointed for the purpose of lodging such appeal on her behalf .","The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and the rules governing other , socalled \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are set out in the ORG \u2019s judgments in the cases of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE and PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE .","The Code sets out the margin of discretion as to the continuation of a specific preventive measure . In so far as relevant , Article CARDINAL provides :","\u201c CARDINAL . Pre - trial detention shall not be imposed if another preventive measure is sufficient . \u201d","The relevant part of Article CARDINAL provides :","\u201c CARDINAL . If there are no special reasons to the contrary , pre - trial detention shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d"],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104882","languageisocode":"ENG","respondent":"LTU","branch":"ADMISSIBILITY","date":2011,"docname":"CESNULEVICIUS v. LITHUANIA","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque","text":["The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE .","In DATE , after GPE had re - established independence , the applicant and PERSON started working at ORG ( ORG apsaugos departamentas ) .","On TIME of CARDINAL DATE the NORP army launched military operations against GPE . NORP troops entered the television tower of GPE and the headquarters of NORP public television , and also tried to take the NORP parliament . Massive crowds of NORP citizens came to the rescue of the institutions of the newly independent GPE . CARDINAL NORP civilians were killed and CARDINAL injured during the clash with the NORP army ( see PERSON v. GPE [ ORG ] , no . CARDINAL , \u00a7 CARDINAL , ORG CARDINALIV ) . At the time of the events , the applicant and ORG were on the premises of the NORP parliament building , where they worked as guards .","In DATE a publishing house released a book by ORG According to the applicant , it contained false and defamatory information about him .","On DATE the applicant addressed the publishing house requesting the opportunity to respond critically to the content of the book . In his letter to the publisher the applicant described ORG negatively and criticised ORG \u2019s actions during the events of DATE . The applicant \u2019s letter contained allegations that ORG had deserted his post at the barricades of the ORG building and that he had not passed the psychiatric check for permission to carry a gun .","Following these events , on DATE ORG brought a private prosecution against the applicant for defamation . The applicant made a counterclaim , alleging that ORG had defamed him in his private prosecution statement .","The applicant states that during the initial examination of the case by ORG he was undergoing medical treatment . He asked for a longer break before the later hearings , for health reasons . The applicant states that the judge suggested that he did not have to be present at the final CARDINAL hearings of his case , at which ORG was due to give his final submissions and judgment would be adopted . The applicant admits that no request for a longer break was noted in the official hearing record . Although the applicant then informed the court that he would not be present at the CARDINAL final hearings , they were not postponed .","On DATE the FAC found the applicant guilty of defamation , given that his statements that \u201c J.U. had deserted his post during the tragic events of DATE \u201d and \u201c ORG had not passed the psychiatric check for permission to carry a gun \u201d had not been proved . The applicant was fined CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) and ordered to pay compensation for non - pecuniary damage in the sum of LTL MONEY ( EUR CARDINAL ) . The court terminated the proceedings in so far as the counterclaim by the applicant was concerned . ORG and his lawyer , as well as the applicant , were present at the hearing .","In finding the applicant guilty , the court noted that the applicant had failed to submit credible evidence in support of his statement that ORG had deserted his post . In this connection the court noted that in an official document ORG \u2019s superior had given a positive evaluation of ORG \u2019s behaviour during the events of DATE . The submissions of CARDINAL independent witness , PERSON , questioned in the courtroom , were also taken into account . The court further established that the statement that ORG had not passed the psychiatric check for permission to carry a firearm was false , given that the medical records showed that he had passed the examination in respect of his mental health .","The applicant states that he saw the record of the hearing of DATE only on DATE , at TIME","The applicant appealed , mainly arguing that the trial court had distorted the testimony of GPE , had misunderstood the circumstances surrounding the events of DATE , and assessed the evidence and applied domestic law wrongly .","On DATE ORG upheld the applicant \u2019s conviction . In the appellate proceedings the applicant was represented by a lawyer . As the transcript of the hearing on appeal shows , the court deemed it unnecessary to question witness PERSON , who had testified before the trial court , again , but granted the applicant \u2019s request to add written evidence to the file and to question CARDINAL more witnesses , GPE and PERSON One more witness , ORG , was questioned at the request of ORG","ORG dismissed the applicant \u2019s argument that the official transcript of the hearing was inaccurate , finding that the applicant had had the right to comment on the record of the hearing within DATE of its signing by the judge , if he believed there were mistakes or inconsistencies . However , he had not made use of this right . The court reviewed the findings of the lower court and decided that the latter had assessed the evidence correctly and reached reasoned conclusions . The appellate court also emphasised that GPE , who had testified before the trial court at the request of the applicant , could not unambiguously confirm the fact that PERSON had left his post at the barricades in DATE . Another witness , ORG , had testified that ORG had not deserted his post . The appellate court also noted that written evidence - a report by ORG \u2019s superior - stated that during the events of DATE ORG was \u201c holding firm \u201d .","Lastly , the court observed that the lower court had correctly concluded that the assertion that ORG had not passed the psychiatric check was a pejorative allusion to his mental health , and thus was damaging to his reputation . No procedural violations were found . This decision was final , as there is no right to appeal on points of law under the domestic law in private prosecution cases .","Subsequently , the applicant unsuccessfully tried to reopen the proceedings , alleging that the courts were unfair . His requests were dismissed by the public prosecutor and the GPE City Second ORG as unsubstantiated ; they found no procedural irregularities when handling the applicant \u2019s case at both levels of jurisdiction .","Articles CARDINAL of LAW provide that a participant in the criminal proceedings may raise an objection on the grounds of partiality of a judge .","Article CARDINAL \u00a7 \u00a7 CARDINAL of LAW provides that a transcript of a hearing must be prepared and signed by the judge who heard the case and the recording officer of the hearing DATE after the hearing took place . The participants in the proceedings have the right to acquaint themselves with the transcript within DATE of its signing . Any objections as to the accuracy of the transcript must be put to the judge who heard the case . If the judge agrees with the objections , he or she adds them to the transcript of the hearing . Should the judge deem that the original transcript was accurate , he may dismiss the participant \u2019s objections by adopting a ruling in a new hearing .","Article CARDINAL \u00a7 CARDINAL of LAW provides that an appeal on points of law may not be lodged in cases of private prosecution ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61556","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2003,"docname":"CASE OF UKUNC AND GUNES v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Ireneu Cabral Barreto","text":["The applicants , PERSON and PERSON , are NORP nationals . They were both born in DATE and live in GPE , GPE .","On DATE the applicants were taken into custody by the PERSON on suspicion of being members of an illegal organisation , namely , the DHKP - C ( Revolutionary ORG ) . The applicants were kept in custody until DATE . They were interrogated by the police on DATE in the absence of their lawyers .","On DATE the applicants were brought before ORG and then before a judge . On both occasions they repeated their statements of DATE . The applicants were released on DATE . They were not represented by lawyers .","On DATE the public prosecutor at ORG filed an indictment with the court and accused the applicants and CARDINAL other co - accused of aiding and abetting an illegal terrorist organisation and requested the court to apply LAW and LAW . ORG ( the Prevention of Terrorism Act DATE as amended ) .","On DATE the ORG requested the applicants ' observations on the charges against them for submission to ORG . According to TIME of the hearing which took place before ORG , the applicants did not want to be represented by lawyers . They challenged for the first time the authenticity of the statements which they gave to the police , to the public prosecutor and to the judge .","On DATE the applicants requested ORG not to require them to appear at any of the hearings since they had to attend school . This request was upheld by the court and the applicants were legally represented by CARDINAL lawyers in their absence in subsequent hearings .","On DATE ORG found the applicants guilty of aiding and abetting the DHKP - C , and sentenced them to DATE and DATE imprisonment . The court pointed out that the applicants ' defence statement to ORG alleging that they had been forced to repeat the prepared confession statements when brought before the public prosecutor and the judge on DATE was unconvincing . The court concluded that the applicants aided and abetted the DHKP - C by painting a slogan on a wall , distributing publications supporting ORG and putting up a placard in the entrance of a shop .","The applicants appealed on the ground that they were convicted on the basis of the statements they had given under duress and that there was , therefore , no concrete evidence on which they could be convicted .","On DATE ORG dismissed the appeal lodged by the applicants and upheld ORG decision . ORG noted in its decision that the applicants ' lawyers , despite having requested ORG to hold an appeal hearing , did not attend the hearing .","In accordance with established practice , the judgment of ORG of DATE was sent to ORG and deposited with that court 's Registry on DATE .","The applicants claim that they became aware of the decision on DATE .","On DATE the applicants applied for rectification of ORG decision on the ground that the preliminary investigation was unlawful having been conducted without their lawyer being present and given that they were minors at the date of the offences . The applicants ' rectification request was rejected on CARDINAL DATE .","The Court refers to the overview of the domestic law derived from previous submissions in other cases , in particular PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and PERSON v. GPE ( no . MONEY , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99119","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2010,"docname":"RUZA v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["NORP The applicant , Mr ORG , is a NORP national who was born in DATE and is being held in custody in Daugavpils prison . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","Criminal proceedings against the applicant","On DATE the applicant was arrested on suspicion of burglary . On DATE he was remanded in custody . On DATE a charge of burglary was brought against him . On DATE the detention order was lifted and the applicant was released .","On DATE the applicant was arrested on suspicion of burglary and the following day he was remanded in custody . The applicant was placed in NORP prison , which , at the time , had recently been converted into a remand centre ( see paragraph CARDINAL below ) . On DATE a charge of murder was brought against the applicant .","On DATE charges of burglary and aggravated murder were brought against the applicant and , after the applicant had become acquainted with the case materials , a final bill of indictment was issued on DATE .","On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . The applicant appealed against that judgment . His appeal was admitted on DATE .","The proceedings are currently pending and the next hearing before the appellate court is scheduled for DATE .","Applicant 's state of health while at liberty","On DATE the applicant was released from prison , where he had been serving a sentence following another set of criminal proceedings . Soon after his release , on DATE , he was admitted to ORG , where he was diagnosed with chronic pancreatitis and gastritis . He was treated in that hospital for DATE after which doctors recommended a course of outpatient treatment and advised him not to consume alcohol . He was also treated in that hospital from DATE . Doctors recommended a diet and prescribed PERSON , a non - prescription drug used for pancreatic enzyme replacement therapy , and advised him not to consume alcohol .","From DATE he was treated for chronic pancreatitis at ORG . From DATE he was again hospitalised . Among other illnesses , he was diagnosed with liver cirrhosis . He underwent several operations , including a laparotomy , and was prescribed antibiotics and anti - inflammatory drugs . Doctors recommended a course of outpatient treatment under the supervision of a general practitioner .","Applicant 's state of health while in custody","The applicant 's medical records kept by ORG contain no reference to the applicant 's state of health DATE , when he was first arrested , and DATE , when it appears that he was first seen by a prison doctor in PERSON prison . On that date he was diagnosed with chronic pancreatitis . He also had his lungs scanned as a result of which bronchitis was discovered . He was also seen by prison doctors on CARDINAL and DATE .","On DATE a prison doctor diagnosed him with liver cirrhosis and chronic pancreatitis . He was prescribed PERSON , which he had to pay for himself .","On DATE a prison doctor gave him PERSON and prescribed a further two days ' treatment of several medicines including pancreatin and PERSON , which he also had to pay for himself . On DATE a prison doctor noted that a previous course of therapy should be followed , while nutrition plan CARDINALB , which encourages the use of white bread , should be followed for DATE . On DATE the applicant 's condition deteriorated and on DATE he was sent to ORG in Central prison in GPE .","DATE the applicant was kept in ORG and was treated in relation to chronic pancreatitis , liver cirrhosis and chronic gastritis . While there , he received several courses of medication including medication for enzyme replacement therapy . Recommendations from doctors included the use of hepatoprotectors ( FAC ) for a duration of CARDINAL and a half months , twice a year . GPE is a product of plant origin with hepatoprotective and anti - oxidative qualities ; it is a non - prescription drug for additional therapy for chronic liver diseases , including liver cirrhosis . It is used for preventive purposes as well .","Upon his return to Daugavpils prison , on DATE a prison doctor prescribed Carsil to the applicant . Subsequently , the applicant was prescribed pancreatin and GPE on several occasions . In addition , nutrition plan CARDINALB was prescribed to the applicant for DATE and DATE . On CARDINAL occasion , the applicant was advised to buy pancreatin , which he had to pay for himself . Overall , the applicant was examined by a prison doctor on CARDINAL occasions in DATE and different drugs were prescribed , including GPE on CARDINAL occasions , pancreatin on CARDINAL occasions and PERSON on CARDINAL occasion . In addition , on several occasions in DATE , the applicant 's mother sent him pancreatin and PERSON .","In DATE the applicant 's state of health continued to be examined on a regular basis . Overall , he was examined on nineteen occasions . Among other things , the doctor prescribed several medicines and advised the applicant not to smoke . On CARDINAL occasion the doctor advised the applicant to buy pancreatin and , on another , the applicant was advised to buy hepatoprotectors . On CARDINAL occasions GPE was prescribed and on CARDINAL occasions he received white bread for DATE . In addition , from CARDINAL to CARDINAL DATE the applicant was treated in ORG and received further medication .","NORP In DATE the applicant 's state of health continued to be examined in Daugavpils prison where medication was prescribed on several occasions . On CARDINAL occasion the applicant was prescribed to follow nutrition plan CARDINALB and , on another , to receive white bread for DATE .","Review of complaints by the applicant","On DATE a prosecutor from ORG replied to the applicant that , pursuant to ORG no . CARDINAL ( DATE ) , only primary medical assistance was provided free of charge to detainees ; detained persons suffering from chronic illnesses had to pay for necessary medicine themselves .","On DATE the applicant complained to ORG ( \u201c MADEKKI \u201d ) that the medical assistance in NORP prison was inadequate . In particular , he complained that , as a person suffering from chronic pancreatitis and liver cirrhosis , he had not received adequate medical treatment or nutrition plan CARDINALB.","DATE and CARDINAL DATE an expert examined the applicant 's complaint in the course of administrative proceedings initiated by PERSON . She concluded as follows :","( a ) the applicant had been diagnosed with liver cirrhosis , chronic pancreatitis and chronic gastritis ;","( b ) the applicant had been examined by prison doctors on a DATE basis in DATE , he had received adequate treatment in compliance with ORG no . CARDINAL ( DATE ) ;","( c ) he had been examined and treated in ORG in DATE ; upon his release from hospital , it had been recommended that he use hepatoprotectors twice a year , which he had had to pay for himself ;","( d ) there had been no grounds for prescribing nutrition plan CARDINALB for the applicant in relation to his illnesses pursuant to ORG no . CARDINAL ( DATE ) even though a doctor had prescribed it to him on CARDINAL occasions ;","( e ) the applicant had also been placed in ORG in DATE in order to carry out medical analyses and examinations necessary for confirming the diagnoses .","On DATE PERSON decided to terminate the administrative proceedings on the basis of the expert 's conclusions and concluded that no breaches in relation to the applicant 's medical care had taken place . The applicant did not appeal against that decision .","On DATE ORG replied to the applicant that he had received nutrition in accordance with applicable domestic rules contained in LAW no . CARDINAL ( DATE ) and in LAW no . CARDINAL ( DATE ) . Those regulations had been drawn up in co - operation with ORG and ensure sufficient nutrition .","On DATE , following its second periodic visit to GPE , which had taken place from DATE to DATE , ORG for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment ( \u201c CPT \u201d ) published its report . The ORG had made a full visit to NORP prison and noted the following :","\u201c CARDINAL . FAC , which was built in DATE in the city centre , is a closed prison for male prisoners ( sentenced and on remand ) . Its official capacity had recently been increased from CARDINAL inmates . At the time of the visit , the establishment was holding CARDINAL prisoners , of whom CARDINAL were sentenced and CARDINAL on remand ( including CARDINAL juveniles ) . In addition , CARDINAL sentenced prisoners , held in a semi - open regime , were assigned to work in the establishment .","...","At FAC , the health care staff included CARDINAL full - time doctors ( general practitioner , narcologist and psychiatrist \/ narcologist ) and CARDINAL part - time doctors ( general practitioner , dentist and surgeon ) , as well as CARDINAL full - time feldshers and CARDINAL nurses ( including CARDINAL part - time ) . However , the establishment did not have a psychologist .","Health care staff were present on DATE between TIME and CARDINALhCARDINAL , and on DATE between CARDINALhCARDINAL and CARDINAL . Each shift comprised CARDINAL doctor , CARDINAL nurse and CARDINAL feldsher . For the rest of the time , a prisoner , who was working as an auxiliary within the health care unit , made an initial medical assessment of fellow inmates and then called the ambulance , if needed . On occasion , the Head Doctor was also called in outside TIME .","The ORG is seriously concerned about the absence of qualified health care staff at TIME in an establishment which accommodates CARDINAL prisoners and which , in addition , has an infirmary with in - patients . Further , to entrust a prisoner with the medical examination of fellow inmates is totally unacceptable .","...","At FAC , medical screening of newly - arrived prisoners was always performed by a doctor within TIME of admission . Blood tests ( in particular for HIV and syphilis ) were carried out with the prisoner 's consent , and a fluorogramme was organised . Medical record cards for each prisoner were well - kept . Medical records were sought from a prisoner 's previous doctor , if requested .","...","At Daugavpils Prison , the delegation gained a generally favourable impression of the quality of health care provided to prisoners . ...","In both establishments visited , the delegation received a number of complaints from prisoners about access to medical treatment ( especially regarding dental care ) . As in DATE , dental care was limited to emergency treatment and extractions ( cf . paragraph CARDINAL of the report on the DATE visit ) . The ORG reiterates its recommendation that the NORP authorities take steps to provide appropriate medical treatment - including conservative dental care - to all prisoners in NORP prisons ; this treatment should be free of charge for those prisoners who are not in a position to pay for it . \u201d","On DATE , following its ad hoc visit to GPE , which had taken place from CARDINAL to CARDINAL DATE , that is to say DATE prior to the applicant being placed in NORP prison , the ORG published its report . The ORG had visited Daugavpils prison and made the following remarks :","\u201c CARDINAL . All establishments visited have already been described in paragraph CARDINAL of the report on DATE visit . The general descriptions contained in that report still remain valid .","ORG had recently been formally transformed into a remand institution , although it was still accommodating sentenced prisoners as well . Its official capacity had been reduced from CARDINAL to CARDINAL places ( including CARDINAL juveniles ) . At the time of the DATE visit , the establishment was accommodating CARDINAL inmates , of whom CARDINAL were sentenced and CARDINAL on remand ( including CARDINAL juveniles ) .","...","At FAC , the delegation observed some improvements to the health - care services provided . By way of example , there were now CARDINAL well - equipped quarantine rooms and medical confidentiality was respected .","However , the ORG noted with concern that not all newly - arrived prisoners were medically screened upon admission . The lack of psychologists and a psychiatrist also constituted a serious shortcoming . Further , there was still no qualified health - care staff present at TIME . \u201d","NORP The relevant provision of ORG ( PERSON likums ) , in force at the material time , reads :","Section CARDINAL","\u201c The quality of professional health care and work disability expert examinations in medical treatment institutions shall be controlled by ORG .... \u201d","Cabinet Regulations no . CARDINAL ( DATE ) , in force at the material time and effective until DATE , provided as follows :","\u201c CARDINAL . Convicted persons shall receive free of charge the minimum standard of health care in accordance with the amount established by ORG . In addition , ORG , within its budgetary means , shall provide to convicted persons :","primary , secondary and ( in part ) tertiary medical care ;","emergency dental care ;","medical examinations ;","preventive and anti - epidemic measures ;","medication and injections prescribed by a doctor of the institution ;","medical accessories .","Detained persons shall receive medical care in accordance with LAW , excluding planned in - patient treatment ... Detained persons shall be sent to receive in - patient treatment only when acute circumstances are present .","Cabinet Regulations No . CARDINAL ( DATE ) , in force at the material time and effective until DATE , lay down nutrition guidelines for detainees held in pre - trial detention facilities . It provides that detainees who are ill shall receive nutrition plan CARDINALA. More specifically , detainees diagnosed with certain conditions , for example those who are HIV - positive , shall receive nutrition plan CARDINALB."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22780","languageisocode":"ENG","respondent":"CYP","branch":"ADMISSIBILITY","date":2002,"docname":"BAYBORA and OTHERS v. CYPRUS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson","text":["The applicants , Mr PERSON , Mr PERSON Fevzi Baybora , PERSON , PERSON , PERSON and PERSON . They were born in DATE , DATE , DATE , DATE and DATE respectively and live in GPE ( Kokkina ) , GPE . They are represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","The first applicant was living in ORG ( PERSON ) , GPE , when he was abducted on DATE by forces under the control and\/or the responsibility of the respondent Government . The second and third applicants are the father and the mother of the first applicant . The other applicants are his brothers and sister .","The applicants submit that in DATE their village had run out of food supplies because hostilities between the CARDINAL communities had prevented any form of safe transportation of food . On DATE the first applicant , together with his friend , PERSON , who owned a bus , took this bus and headed towards the NORP - Cypriot town of GPE . On the way , whilst passing through the NORP - Cypriot village of GPE , he and his friend were abducted by a group of armed NORP , including a police officer , and taken to an unknown destination . They were never heard of again .","The persistent efforts of the relatives to ascertain the fate of the missing persons were in vain . Subsequently , on DATE , the first applicant \u2019s case was submitted to the appropriate authority on missing persons , ORG on ORG in GPE ( \u201c CMP \u201d ) ( case number CARDINAL ) .","According to the personal diary of a certain PERSON , a teacher from the NORP - Cypriot village of ORG , which was found in the possession of a NORP - Cypriot journalist , the missing persons were \u201c executed \u201d summarily in the NORP - Cypriot cemetery of NORP village by armed NORP Cypriots named ORG and Pari \u201c on the instructions of the ORG \u201d ( the code - name of the then Minister of ORG , ORG ) . Through the intermediary of the NORP - Cypriot member of the ORG , the relatives submitted this additional information to the ORG in the hope of finding out what really happened to the missing persons .","According to the applicants , a number of requests were made to the ORG to conduct an effective investigation into the fate of the first applicant and his friend . However , there was no response to their requests and no hint of any effective investigation having been undertaken . The third applicant wrote to ORG in GPE . He stated in his letter that all of their enquiries had so far borne no results and that ORG had persistently refused to investigate the matter . ORG answered by saying that it appeared that while the ORG may have investigated quite a number of cases submitted to it , it has not been able to bring any of these investigations to a conclusion because the ORG members have been unable to come to an agreement about the ORG \u2019s working methods .","The accidental discovery of human remains in DATE in the ORG region raised a hope for the applicants . However , a scientific report drafted by an NORP company , following the study of a bone sample , concluded that the individuals whose remains had been found had lived between CARDINAL and DATE .","On DATE ORG of the ORG sent to the ORG the following letter :","\u201c I am referring to the human remains which were accidentally discovered DATE in ORG . My letter dated CARDINAL , as well as your letter dated CARDINAL on this issue , are hereby appended for any reference .","Further to a conversation you had with PERSON concerning recent developments on the matter , I wish to inform you that on CARDINAL separate occasions , members of the team of ORG , assisted by our investigating officer and myself , searched the area for additional skeletal remains . All remains were subsequently taken to the laboratory of ORG for anthropological analysis , and for decent keeping .","Moreover , skeletal samples were sent to a laboratory in GPE for specialised tests in order to ascertain the period that the remains were buried . The report of the laboratory concerning the remains is appended , as well as a letter by Dr PERSON Director ORG .","We would be most grateful if you could inform accordingly ORG of the CMP of this development . We strongly suggest that the NORP family , which claimed in the press that the remains might belong to their missing father , should also be informed of the results of the scientific analysis by you too . We are at your entire disposal for any further information ... \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69139","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF S\u00dcHEYLA AYDIN v. TURKEY","importance":3,"conclusion":"Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)","judges":"Feyyaz G\u00f6lc\u00fckl\u00fc;Jean Claude Geus","text":["The applicant , a NORP citizen of NORP origin , was born in DATE and lives in GPE where she has been granted political asylum . She was the wife of PERSON , whose body was found on DATE in a location outside ORG , with his hands tied at the back . He had been shot in the head with a single bullet .","The facts of the case , particularly those events which occurred DATE and DATE , are disputed by the parties .","The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL ) . The Government \u2019s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL - CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Section D ( paragraphs CARDINAL - CARDINAL ) .","The Commission , in order to establish the facts disputed by the parties , conducted an investigation with the assistance of the parties , pursuant to former LAW ( a ) of the LAW . It appointed CARDINAL delegates ( Mr PERSON , Mr PERSON and Mr PERSON ) who took evidence in GPE on DATE and in GPE from DATE to DATE . They interviewed the applicant as well as the following CARDINAL witnesses : PERSON , Mr PERSON , PERSON , Mr PERSON , Mr GPE , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON and finally Mr PERSON . A summary of the oral evidence given by these witnesses is found in Section E below ( paragraphs CARDINAL - CARDINAL ) .","CARDINAL other witnesses , Mr PERSON , Mr PERSON and PERSON PERSON , were also summoned but did not appear before the ORG \u2019s delegates .","Following the questioning of the above mentioned witnesses , the Commission considered it important to hear QUANTITY police officers who had accompanied PERSON and PERSON to ORG ( see paragraph CARDINAL below ) . The Commission informed the parties on DATE that the delegates wanted to interview the police officers in GPE on DATE . The Government were requested to identify the CARDINAL police officers and summon them for the hearing in GPE . The Government asked the Commission to explain why a need was felt to hear the police officers in person as opposed to questions being put to them in writing , and further asked the Commission to reconsider its decision . Despite the Commission \u2019s repeated explanations , the Government failed to identify the witnesses and informed the Commission on DATE that they did not have time to identify the CARDINAL police officers and therefore they would not be able to ensure their attendance at the proposed hearing . The Commission was therefore obliged to cancel the proposed hearing .","In DATE the applicant was working as an anaesthetics nurse , and her husband , PERSON , as an environmental technician . They were civil servants . PERSON was also the president of ORG ( T\u00fcm PERSON ) . Previously , the applicant and her husband had been subjected to harassment and arrest by the security forces . Their activities on behalf of the trade union had drawn the unwelcome attention of the security forces and the police to them .","In DATE the applicant and her husband did not have a permanent residence as they had been subjected to several transfer orders and had been moving around GPE to various places of work . The applicant was DATE pregnant at the time .","On DATE the applicant and her husband were at the house of GPE \u2019s relative , PERSON , in GPE . At that time , a large number of relatives were also in the house . At TIME arrived at the house with Mr PERSON , whom they had arrested earlier at a coffee shop . The police officers entered the apartment . They asked for the identity cards of all those present , and questioned various members of the family . The police then took into detention all the family members present , including a DATE child .","The detainees were placed in vehicles . The applicant was placed in a car by herself and was accompanied by CARDINAL police officers . In the vehicles the detainees were blindfolded and they were then brought to the rapid response force building ( ORG ) for interrogation . The applicant was not feeling well due to her pregnancy .","When they arrived at the rapid response force building , the applicant was made to sit in a corridor waiting to be brought in for interrogation . As she sat in the corridor she could hear the screams of her husband as he was being tortured .","The applicant was taken in for interrogation CARDINAL times . The first time , the applicant was questioned about where her husband had been during certain periods . The second time she was taken in , her husband was also present . Her blindfold was removed momentarily so that she could see her husband . She saw him naked and blindfolded in the middle of the room . His body was wet and he was crouched over , shivering . The applicant was made to listen while he was interrogated . During this time PERSON gave a response to the police which contradicted an answer provided by the applicant . When this happened , PERSON was removed from the room and the applicant was grabbed by the hair and slapped in the face .","On the third occasion the applicant was taken in for interrogation , the police ordered her to strip naked . Her husband was also in the room . The police threatened him that they would harm her if he did not answer their questions . The applicant was frightened and her condition deteriorated . She was removed from the room . Outside the room , the applicant was told by the police officers , \u201c Do you know PERSON ? His body was found in an empty lot . I do not think you want your husband to end up the same way \u201d . On each occasion that she was removed from the room , she could hear the screams of her husband as he was being tortured .","NORP The applicant was taken from the rapid response force building to the LOC police station . She was put in a cell with PERSON and the latter \u2019s children , where they were kept for DATE . The applicant was released on DATE , without having been brought before a judge . During her time in detention , she had not been given the right of access to a lawyer , prosecutor or judge .","PERSON , a relative of the applicant \u2019s husband who , as president of ORG , was politically active on behalf of NORP women , was also detained and was tortured during her detention . This torture included hanging , beatings , electric shocks , insults and threats of rape . During her detention she was asked questions about the activities of PERSON and PERSON . She was released on CARDINAL DATE , having been brought before Prosecutor PERSON .","On DATE the applicant \u2019s husband and his cousin PERSON were finally brought before ORG ( hereinafter \u201c the ORG \u201d ) . At TIME the CARDINAL were taken for a medical examination . At TIME the CARDINAL men signed for their possessions . At TIME Mr Sezgin GPE , a lawyer who had come to ORG DATE , saw PERSON being brought into the court building . After that , there were only a few persons who witnessed what happened to the CARDINAL men .","The records from the proceedings show that the Prosecutor demanded that they remain in custody , but the duty judge ordered their release DATE . The Prosecutor lodged an objection to PERSON release with ORG , but the appeal was rejected on DATE .","At the time of their appearance before the judge , no lawyer was allowed to be present .","Despite the order of release from ORG , the CARDINAL men never emerged from the front door of the court building where family members and friends of the QUANTITY men were waiting . When Sezgin GPE came out of the building at CARDINAL or TIME , he informed PERSON that he had seen the CARDINAL men . Mr PERSON , GPE \u2019s father , was also waiting . He had , in fact , been waiting for his son outside the court building for DATE . The only times he was not outside the court building was when he had gone to the coffee house to pray , which would have taken him TIME at some stage TIME and again TIME between CARDINAL and TIME According to PERSON , if PERSON had been released during those CARDINAL-minute periods , he would have been told about this by other people who were waiting there . The only other exit which the men could have used to leave the court building was a door located in the basement of ORG , adjacent to the registry of the court . That exit could only be used by police vehicles . Persons in the registry informed lawyers that they had seen GPE exit from that door .","The following day , DATE , the families of the CARDINAL men applied to the Prosecutor in order to obtain information . The Prosecutor told them that PERSON and PERSON had been released and that they had not been re - arrested . When Sezgin GPE spoke with Mr PERSON , ORG at ORG , the latter told Mr GPE that GPE had probably gone to join the ORG ( ORG ) . He said similar things to another lawyer , Mr PERSON , when he made enquiries .","On DATE PERSON was telephoned and asked to meet with PERSON , the Prosecutor who had released her . Apart from Mr PERSON , the President of ORG and another prosecutor and judge were also present at this meeting , held at FAC . PERSON joined the meeting later . The discussion at this meeting concerned the question how PERSON and PERSON could have gone missing from inside the court building . The judge at the meeting noted that , apart from the front entrance , there was CARDINAL other entrance which was on the ground floor at the back of the building , which was used only by the police to transport prisoners to and from ORG . The judge wondered whether \u201c the ones with the radio ... \u201d could have taken the CARDINAL men away , but did not finish his sentence . The men also discussed the \u201c dirty games \u201d which were being played in GPE at the time . At the end of the meeting , PERSON exchanged telephone numbers with PERSON .","On TIME DATE villagers working in a field in the PERSON district near the PERSON river , QUANTITY outside ORG , discovered CARDINAL bodies . The bodies were in a shallow grave QUANTITY from the main FAC . The bodies had their hands tied behind their back and a bullet in the back of the head had killed each of them . They had been buried side by side at a depth of QUANTITY . The name PERSON was engraved in a wedding ring which was found in the pocket of one of the dead men . The families identified the bodies of PERSON and PERSON that evening .","NORP The families retrieved the bodies DATE from the morgue at ORG . Many people who wanted to visit the morgue were turned away . CARDINAL teachers , members of the ORG union , were taken into custody . While in custody , they were threatened and told that PERSON and PERSON had been killed in a clash .","Having been arrested on DATE , the applicant was examined by a doctor on DATE . According to a medical report drawn up at the time of her release , there were no signs of ill - treatment or torture on her body .","On DATE the Anti - terrorist GPE in ORG requested that PERSON and PERSON be examined by a doctor . As a result of this request , on DATE at TIME , the applicant \u2019s husband and PERSON were examined by a doctor , who concluded that there were no signs of ill - treatment or torture on their bodies .","At TIME they were taken to the chief of the security forces , who drew up a record to the effect that their personal belongings had been returned to them . The applicant \u2019s husband signed this document . DATE , the applicant \u2019s husband and PERSON were brought before a judge , who ordered their release . PERSON and PERSON had then left the court building .","On DATE , the bodies of the applicant \u2019s husband , PERSON , and an unidentified person were found buried at a distance of QUANTITY from GPE .","The autopsies performed concluded that they had been summarily executed , as the bodies were found with the hands tied behind their backs . As rigor mortis had not yet completely set in , the autopsy report stated that PERSON had been dead for TIME . This meant that the killing must have taken place CARDINAL or five days after the release of the applicant \u2019s husband .","An ex officio investigation was opened under file no . CARDINAL\/CARDINAL in order to identify the ORG terrorists who were the perpetrators of the murders . The investigation progressed very slowly , as the terrorists who had executed the applicant \u2019s husband were very mobile and often hid in neighbouring countries . They did not tend to return to the scene of the crime and witness statements were difficult to come by , since potential witnesses preferred to keep silent for fear of repercussions and intimidation .","Following the lodging of the application to the ORG , another ex officio investigation was opened in relation to the allegations of ill - treatment and torture during detention . However , on DATE , ORG decided not to prosecute anyone as there was no evidence supporting the applicant \u2019s allegations .","The following information appears from the documents submitted by the parties .","According to a report of the arrest and house search , drawn up on DATE , PERSON , ORG , PERSON and CARDINAL other persons were arrested in a house in GPE DATE at TIME","A single sentence in a document dated CARDINAL DATE relating to CARDINAL of the detainees , including the applicant , states that the detainees bore no marks of ill - treatment .","Also on DATE , the applicant and CARDINAL other detainees were released by police officers from the Diyarbak\u0131r Police upon the oral instructions of the Prosecutor at ORG .","On DATE PERSON , the sister of PERSON , submitted a petition to ORG at ORG in which she expressed her concerns about her brother and asked to be provided with information about him .","On DATE the Prosecutor at ORG informed PERSON that her brother was being detained at the anti - terrorist branch of ORG .","On DATE a statement was taken from PERSON while he was in police custody . He stated that both he and PERSON had been members of the ORG .","A statement was taken from PERSON on DATE . He rejected the allegation that he had been an active member of the ORG . He also rejected the allegation that he and a number of his friends had been trying to set up a private hospital , which would be funded by the ORG and where wounded ORG members would be treated . He admitted that he had been a ORG sympathiser and that he had been arrested in DATE , but the charges against him had later been dropped .","According to a medical report drawn up at ORG at TIME on DATE , neither PERSON nor PERSON bore any marks of ill - treatment .","At TIME on DATE , the belongings of PERSON and PERSON , which had been taken away from them following their arrest on DATE , were returned to them .","It appears from a letter signed by PERSON , the chief of the anti - terrorism branch of ORG , that on DATE PERSON , PERSON and a certain PERSON were referred to ORG . It further appears from this letter that PERSON had also been detained at the anti - terrorism branch .","DATE . On DATE ORG at ORG questioned PERSON and PERSON . PERSON repeated that he had not been a member of the ORG , whereas PERSON stated that he had wanted to join the ORG in the past but had not been admitted .","Finally , on DATE , Judge PERSON of ORG questioned PERSON and PERSON . Both GPE and PERSON confirmed the statements they had made to the Prosecutor DATE . The Judge then ordered their release .","On DATE ORG of ORG rejected the objection , which had been lodged by ORG at that court , against the decision ordering the release of PERSON and PERSON .","On DATE a report was drawn up by CARDINAL gendarme officers , PERSON and PERSON ( see paragraphs CARDINAL and QUANTITY below ) , and signed by CARDINAL gendarme privates . The report stated that a certain PERSON PERSON had come to their gendarmerie station and had informed them that he had found a body , buried in the ORG area . The soldiers had visited the area at TIME and found the partially buried bodies of CARDINAL men ; their hands were tied at the back and each one had been shot in the head by a single bullet . There were no documents on the bodies to help establish their identities . However , the name \u201c NORP \u201d was engraved in CARDINAL of CARDINAL golden rings found in the pocket of the trousers of CARDINAL of the bodies . The gendarmes had then informed the judicial authorities of their discovery .","On DATE ORG , ORG in whose jurisdiction the bodies had been found , visited the area together with PERSON , a doctor . The Prosecutor and the doctor drew up a report in which they recorded that each of the CARDINAL men had been killed by a single gun shot to the head and that the bullets had exited the bodies . Rigor mortis had not yet set in at the time of the examination , and therefore it was estimated that the victims had been dead for TIME . The doctor concluded on the spot that the cause of death was the destruction of the brain and that there was no need , therefore , for full autopsies to be carried out . After having been photographed in situ , the bodies were transferred to the morgue in ORG .","According to this report , drawn up by the ORG and the doctor , the body which had been found with the rings , bore a number of ecchymoses . There was a mark on the left shoulder , measuring QUANTITY , that had been caused by a blow ; CARDINAL ecchymosed areas on the scapular region on the back of the left shoulder , measuring QUANTITY and QUANTITY , had been caused by blows ; an ecchymosed area on the right scapular region of the shoulder , measuring QUANTITY , had been caused by a blow ; and finally an ecchymosed area on the chondral rib , measuring QUANTITY , was noted .","On DATE the bodies of PERSON and PERSON were identified by their respective brothers . The third body remained unidentified . The bodies were photographed once more . The Prosecutor at ORG issued a burial licence for PERSON .","On DATE the Bismil Prosecutor questioned PERSON , the brother of PERSON . Mr ORG confirmed that his brother \u2019s release had been ordered by ORG on DATE , but his family had not heard anything from GPE until they had been contacted by hospital workers and were told that GPE \u2019s body was in the morgue .","On DATE the Bismil Prosecutor questioned PERSON , the brother of PERSON . Mr Ay similarly confirmed that ORG had ordered the release of his brother and PERSON . He stated that he did not know how they had been killed and that he did not suspect anyone in particular . Mr Ay further stated that the third body , which had been found next to his brother and PERSON , was that of PERSON , a university student in ORG .","Also on DATE the ORG asked the commander of the ORG gendarmerie to investigate whether the killings had any political aspects .","On CARDINAL DATE the Bismil Prosecutor decided that the killing of the CARDINAL persons had political aspects and therefore his office lacked jurisdiction to continue the investigation . The Prosecutor then sent the investigation file to ORG which had jurisdiction to investigate the killings .","On DATE PERSON , ORG at ORG , sent a reply to a letter which had apparently been sent to him by ORG ( hereinafter \u201c the Directorate \u201d ) on DATE and which concerned the application made to the Commission by the applicant . Mr PERSON stated in this letter that his office was overseeing the investigation into the killings . Mr PERSON was of the opinion that PERSON and PERSON , both of whom had stopped working for the ORG , had been killed by members of the ORG with the aim of attributing their killings to the ORG and then making an application to ORG . The investigation into the killings was being conducted in the light of this information , but it had not yet been possible to apprehend the members of the ORG who had perpetrated the killings . PERSON finally stated that an indictment had been filed with ORG on DATE in which the applicant was charged with aiding and abetting a terrorist organisation .","On DATE ORG in ORG decided not to prosecute CARDINAL police officers for allegedly having ill - treated PERSON during police custody in DATE , DATE and in DATE . It was noted in this decision that there was no evidence suggesting that her allegations of ill - treatment , detailed in her statement which had been taken from her by a letter rogatory on DATE , were true . The medical reports drawn up at the time of her releases did not mention any marks of ill - treatment .","On DATE Prosecutor PERSON at ORG asked ORG and ORG to search for the perpetrators of the killings of PERSON , PERSON and PERSON . According to this Prosecutor , the killings had been perpetrated by a group of ORG members .","On DATE a Prosecutor at ORG sent a letter to the anti - terrorism department of ORG , requesting that the QUANTITY police officers , who had questioned PERSON and PERSON while they were in police custody and had then accompanied them to ORG on DATE , be identified .","In his reply of DATE , ORG informed ORG at ORG that PERSON , PERSON and PERSON had been questioned while they were in police custody by police commissioner PERSON and by a police officer named ORG . The CARDINAL detainees had then been referred to ORG by the Police Commissioner , PERSON , on behalf of PERSON . The letter further states that , as at that time it was not the practice to draw up release reports , the authorities were unable to determine the identities of the police officers who had actually accompanied the CARDINAL men to ORG .","On CARDINAL DATE a statement was taken from ORG . He said that on DATE he had questioned PERSON , the third person whose body had been recovered together with the bodies of PERSON and PERSON . PERSON stated that he had not questioned PERSON or PERSON and that he had not accompanied them to ORG . He assumed that they had been taken there by officers working at the registry of the interrogation department .","On CARDINAL DATE the Prosecutor PERSON at FAC decided that he lacked jurisdiction to investigate the killings as there was no evidence suggesting that the killings had been carried out by members of the ORG and hence it was a case of homicide as opposed to a political killing . The Prosecutor added that the decision of non - jurisdiction of CARDINAL DATE ( see paragraph CARDINAL above ) had been based on presumptions . The file was sent back to ORG in Bismil in order for the investigation to continue .","On DATE the Prosecutor in the town of ORG contacted his colleague in the nearby town of ORG and informed him that a number of killings in the area , the majority of which had taken place DATE , had possibly been carried out by the same person or persons . The similarities lay in the way these killings had been carried out and in the weapons used . He asked ORG to forward to him details of the killings carried out in the jurisdiction of Bismil so that he could verify whether they were connected in any way .","DATE . On DATE the Bismil Prosecutor sent a reply to his colleague in ORG , stating that CARDINAL persons had been killed in his jurisdiction DATE ; CARDINAL on DATE , and the remaining CARDINAL on DATE . The bullets recovered after the killing of the QUANTITY persons in DATE had already been forwarded to the forensic department of the gendarmerie . No bullets or bullet cases had been recovered in relation to the killing of the QUANTITY persons in DATE .","On DATE the ORG sent a letter to ORG in ORG and asked whether any empty bullet cases , bullets or other similar evidence had been found at the site where the bodies were found and whether any forensic reports had been drawn up .","On DATE ORG in ORG forwarded to ORG in the district of ORG letter of CARDINAL DATE .","On DATE the Bismil Prosecutor replied that no bullets or bullets cases had been found in the area .","According to a number of documents drawn up by public prosecutors and soldiers DATE , each of which is CARDINAL paragraph long and most of which are identical pro - forma documents , it had not been possible to find the perpetrators of the killings despite the investigations carried out and the visits made to the area where the bodies had been found . These documents contained no information indicating what specific steps had been taken .","On DATE the Bismil Prosecutor informed the ORG , in an apparent response to a request from the latter of DATE , that the investigation into the killings was still ongoing and that his office was being informed DATE about the investigation by the soldiers . No personal belongings , other than the clothes which the deceased had been wearing , had been found at the site where the bodies were discovered .","At the time of the events , the applicant was working as a nurse in GPE . Neither she nor her husband had ever been harassed by any authority until they became members of the trade union . After joining the union , they were repeatedly arrested , detained and questioned about their activities within the trade union .","She and her husband were both civil servants , and on a number of occasions they had been posted to different cities which made it difficult for them to live together . When they had challenged their repeated postings through the courts , they were told that their existence in ORG constituted a threat to peace and security , and that it was for this reason that they had been sent away from that city . They had both resigned their jobs and stayed in GPE . GPE had then found another job in GPE . Had they not been arrested , PERSON and GPE would have left ORG for GPE after TIME meal on DATE .","DATE . However , DATE she was taken into detention , together with her husband and a number of other persons , including a DATE girl . At the time of their arrest , they were in the house of PERSON in GPE . They were taken to the rapid reaction force building in ORG and were blindfolded upon arrival . She knew the building well because she had been detained there on CARDINAL occasions in the past .","During her detention , which lasted DATE , she was questioned CARDINAL times . She was asked why she kept coming back to ORG . A police officer told the applicant , \u201c We have sent you away from ORG so many times and still can not manage to get rid of you \u201d . On CARDINAL occasion she was held by her hair and slapped . During her time in detention , she often heard her husband GPE \u2019s screams . On CARDINAL occasion , her blindfold was removed and she was able to see her husband standing naked and wet . He was shivering .","Those questioning PERSON repeatedly told him that they would harm PERSON and strip her naked if he did not cooperate . She was also told by those detaining her to behave herself if she did not want her husband to end up like PERSON who had been killed in GPE ( see GPE v. GPE , no . CARDINAL , DATE ) . The applicant , another female detainee and the latter \u2019s children were then sent to ORG in GPE where they were kept for DATE . No statement was taken from the applicant while she was in detention . On DATE at midnight they were taken to the hospital for a medical examination ( see paragraph CARDINAL above ) where a doctor , in the presence of police officers , asked the applicant if she had any marks of blows on her body . She replied that she did not . She was not physically examined by the doctor . She was then released at the hospital without having been brought before a prosecutor or judge .","On DATE the applicant was informed by a lawyer that her husband had been brought before the judge at ORG DATE . She did not try to see her husband as she knew that it would be impossible to enter the building . In any event , her father - in - law LOC and family members of PERSON were already waiting outside the court .","When GPE and PERSON were not released DATE , their families assumed that the judge had ordered their detention on remand and that they were transferred to the prison . When they contacted the prison TIME they were told , however , that the CARDINAL men were not there .","DATE , i.e. on DATE , PERSON and the family lawyers contacted ORG to ask about GPE and PERSON . They were told that the CARDINAL men had been released DATE . The family members then began to fear that the CARDINAL men would be killed . They continued their efforts to obtain information until TIME of CARDINAL DATE when they were informed that the bodies of GPE and PERSON had been found .","The witness was also in the house of PERSON on TIME of DATE and was also arrested together with GPE , PERSON and the others . She was kept in a cell on her own and she was able to hear the screams of other detainees who were being tortured . The police officers began questioning her on DATE of her detention . She was beaten up , subjected to electrical shocks , hung from her arms and threatened with rape .","On DATE she was brought before a doctor , together with CARDINAL other detainees , for a medical examination . The police officers who accompanied the detainees to the hospital threatened them and told them not to mention to the doctor any of the torture . Similarly , the doctor advised the detainees not to mention anything that might have been done to them if they wanted to avoid more . The detainees all said that they were fine . The witness was then brought before PERSON ( see paragraph CARDINAL above ) , a Prosecutor at ORG , who ordered her release .","After GPE \u2019s disappearance , when a number of family members were making enquiries into his fate , the witness was unable to join them as she was being treated by doctors because she had fallen seriously ill after the torture inflicted on her during her detention .","On DATE , i.e. subsequent to the disappearance of PERSON and PERSON but prior to the discovery of their bodies , the Prosecutor PERSON asked PERSON to come and see him in the court building . On DATE she and PERSON , the elder brother of PERSON , went to meet with PERSON . However , on their arrival , PERSON was not allowed in to see the Prosecutor . In the room where she met PERSON there were also another prosecutor as well as CARDINAL judges present , CARDINAL of whom was the President of ORG . PERSON , ORG of ORG , joined the meeting at a later stage . A conversation ensued during which they all discussed what might have happened to PERSON and PERSON . At CARDINAL stage CARDINAL of the judges said \u201c I wonder if it was those with the walkie - talkies ? \u201d . Some of those present in the room commented that some \u201c dirty games \u201d were being played in ORG which they were unable to solve . They also discussed the killing of ORG , another member of GPE \u2019s family , who had been killed in similar circumstances ( see PERSON v. GPE , no . CARDINAL\/CARDINAL ) . They then promised PERSON that they would continue their investigation to find the CARDINAL men .","DATE after the bodies were found PERSON was asked to meet with the Mr PERSON and ORG once again . During this meeting she was asked how the family was coping with their loss . They then apologised for having failed to do more to find the men alive .","The witness is the father of PERSON . His son and a number of others were arrested in DATE and detained . All those detained , with the exception of his son and PERSON , were subsequently released . After the arrest of his son , the witness began waiting for him outside the ORG building . He would sit under the trees in the court \u2019s garden , QUANTITY across from the entrance to the building . He would start waiting there as of TIME DATE and would only be absent from the vicinity of the court during prayer times at TIME and in TIME . Had his son been released during such an absence , he would have been informed by other persons who were waiting there for their relatives and whom the witness had befriended . On a number of occasions , the witness also went to the local hospital where , he was told , detainees would be brought for a check - up prior to their release . He unsuccessfully tried to obtain information about his son at the hospital .","On DATE the applicant learned that his son \u2019s release had been ordered by the court . However , his son did not emerge from the court building . The witness then went back to his village and did not return to ORG until he was informed that his son \u2019s body had been taken to the morgue at the hospital .","During the time he spent waiting outside the court building , he had not seen any detainees being released ; detainees whose release had been ordered by the court would be taken back to the detention places and be released after TIME . He never expected that his son would be released from the court but he continued to wait in the hope that he would get some news about him .","According to the witness , his son was killed because of his leftist views and also because of his involvement in trade union activities . A number of his son \u2019s friends and in particular a relative , ORG , had also been murdered in similar circumstances .","The witness is an advocate practising in ORG . He has appeared before ORG on many occasions to represent clients and knows the court \u2019s procedure and the court building well .","At the time of the events giving rise to the present application , the court building was located in a courtyard which was surrounded by a wall . There were CARDINAL gates opening into the courtyard . CARDINAL of these gates was used by personnel working at the court and also by officials when transporting defendants who were detained on remand and suspects who were detained in police custody . The other gate was used by lawyers and the general public . The court building had CARDINAL doors , CARDINAL of which were for official use and the third door was used by lawyers and the general public . Lawyers were not allowed to speak with their clients who were brought to the court from police custody and the detainees did not have access to a lawyer .","A person taken to the court from police custody could be released by a prosecutor or judge . In that event , the suspect would be escorted by police officers to the door of the building , the one used by the general public , and released there . In DATE it was not the practice of the court to draw up a release document ; such a practice was not introduced until DATE . Personal belongings such as belts , money , watches , rings , etc . , were returned to the detainees before they were brought before the judge at the court building .","On DATE the witness went to the ORG building for unrelated business . After completing that business , and as he was about to leave CARDINAL or TIME , he saw PERSON and PERSON being brought into the court by CARDINAL or CARDINAL policemen . He and PERSON saw each other and exchanged looks in greeting . When the witness left the building he saw PERSON , the elder brother of PERSON , who was waiting outside the gate , and he told him that he had just seen his brother and GPE being taken into the court building .","Family members waiting for detainees were a familiar sight outside the ORG building . Family members would start waiting there for the release of their relatives as soon as they had been detained , because once a person was detained it was not possible to know when he or she would be released ; the maximum period of detention before a suspect had to be brought before a judge was DATE at that time .","In TIME of DATE , PERSON telephoned the witness and told him that neither his brother nor PERSON had emerged from the court building . Mr Ay asked the witness if he had any information as to whether the CARDINAL detainees had been released or been taken back to the police station . The following morning the witness spoke to the Chief Public Prosecutor PERSON . Mr PERSON confirmed that the judge had ordered the release of the CARDINAL detainees . When informed that the CARDINAL detainees had never made it to the court \u2019s door , the Prosecutor told the witness that they had perhaps joined the ORG .","The Registry office of ORG was located in the basement of the court building , next to the exit door used by police officers to bring detainees in and out . At DATE , officials working at the registry told the witness that PERSON and PERSON had been led away through that door . The witness did not convey this information to anyone else because he feared for the lives of the sources of this information .","This witness is also an advocate practising in ORG . He was acting for PERSON at the time of the events giving rise to the present application . When his client was taken into detention in DATE , the witness was not allowed to see him . This was because the legislation in force at the time prevented detainees , who were arrested for an offence falling within the jurisdiction of ORG , to have access to their lawyers . The witness would also not be informed as to when GPE would be brought before a judge , although he knew that this would happen within DATE , the maximum period of detention at the time .","On DATE the witness was in the ORG building to represent a number of other clients at their trials . He did not come across PERSON in the building but was told at a later stage by a court official that GPE had been there on DATE .","The witness was informed on DATE that GPE had been brought before a judge who had ordered his release but he had not been seen leaving the building . The witness then went to speak to Chief Public Prosecutor PERSON . Mr PERSON told him that GPE had been released and that he had probably joined the ORG .","The witness was ORG of ORG at the time of the events . He remembered that PERSON was being investigated for membership of the ORG .","It was not the practice at the time of the events to draw up release documents . Sometimes a detainee , whose release was ordered by a prosecutor or judge , was escorted by police officers to a safe place and released from there . Otherwise a detainee was simply released outside the court building . In any event , detainees were not allowed to wander around freely inside the court building .","It would have been possible for him , as a Public Prosecutor , to find out the identities of the police officers who had accompanied PERSON to the court building on DATE . However , he could not remember whether or not he had done this and whether he had subsequently questioned these police officers . He thought that he might have done so . In any event , he would not have recorded the identities of these police officers or what they had said to him in a document , in order not to jeopardise the police ORG safety . Furthermore , the account of the police officers who had escorted PERSON to the court building would not have been important to the investigation .","ORG . The opinions expressed in the document which he had drawn up on CARDINAL DATE ( see paragraph CARDINAL above ) had been based on the investigations . They were not based on subjective opinion . The witness believed that PERSON and PERSON had been ORG members . PERSON was probably killed by ORG members because he had left the organisation . Perhaps he was killed because he had the same surname as ORG , who had also been killed in similar circumstances .","Neither the fact that the release of PERSON and his wife had been ordered by the judge for lack of evidence , nor the fact that neither GPE nor PERSON had ever been convicted of an offence involving the ORG , had a bearing on the NORP opinion that GPE and his wife were ORG members . The acquittal of PERSON on charges of aiding and abetting ORG members was the personal opinion of the trial court judge . That acquittal did not mean that she was not involved in ORG activities .","The witness denied having been approached by family members of the deceased men ( see paragraphs CARDINAL above ) and he did not remember whether he had met with advocates Sezgin GPE and PERSON and discussed the disappearance of PERSON ( see paragraphs CARDINAL and CARDINAL above ) .","His office would sometimes receive intelligence indicating that certain civil servants had been in contact with members of the ORG . In such circumstances , and when he was unable to obtain any evidence to indict such civil servants , he would ensure their transfer to other cities .","The witness still held the opinion that PERSON had been killed by members of the ORG so that a complaint could be lodged against GPE to ORG ( see paragraph CARDINAL above ) .","The witness was ORG of the town of Bismil at the time of the events . The bodies were found in an area under his jurisdiction and he participated in the examination of the bodies on DATE ( see paragraph CARDINAL above ) .","He did not deem it necessary to carry out a full autopsy in order to establish the circumstances leading up to the killings ; the cause of death was established and that was sufficient . The way the killings had been carried out \u2013 in particular , the single gun shot to the head and the bodies being dumped at a roadside \u2013 led the witness to form the opinion that the perpetrators of the killings were members of the ORG .","Prosecutors would investigate a killing regardless of whether or not there had been an official request by a relative of the deceased person . During his time in ORG there had been a significant number of killings in the area and each of these killings had been investigated by the authorities .","The witness is a Public Prosecutor and was appointed to ORG in DATE . From DATE he carried out the investigation into the killing of the applicant \u2019s husband and the other QUANTITY persons . He inherited CARDINAL similar cases from his predecessor .","NORP In a document which he signed on DATE ( see paragraph CARDINAL above ) , the witness recorded that PERSON had been killed by members of the ORG . He explained that , in an investigation into a killing which had taken place in that area at that time , the starting point would be that the perpetrators were members of the ORG . Other possibilities would also be investigated if any evidence came to light which suggested otherwise . On DATE the witness decided that there was no evidence suggesting that the killings had been carried out by members of the ORG , and he sent the investigation file to the local prosecutor ( see paragraph CARDINAL above ) .","The witness was the chief of the anti - terrorist branch of ORG where the applicant , PERSON , PERSON , PERSON and the others had been detained at the time of the events ( see paragraph CARDINAL above ) .","When a person was detained , his or her personal belongings would be taken away from that person and he or she would be asked to sign a document to that effect . When the detainee is about to be brought before a judge , the belongings would be returned and the person would be asked to sign the same document . This was what had happened in the case of PERSON ( see paragraph CARDINAL above ) .","CARDINAL police officers would have accompanied PERSON and PERSON to ORG on DATE . These police officers would not be the same as those who had questioned the detainees while in custody .","The witness had never been questioned by the authorities investigating the disappearance and the subsequent killing of PERSON .","The witness is a police officer and was responsible for the detainees at ORG at the time of the events . He signed the document showing that personal belongings of PERSON were taken away and had then been returned to him ( see paragraph CARDINAL above ) .","He did not remember who had accompanied PERSON and PERSON to ORG on DATE but it would be possible , by examining the documents at the place of detention , to determine the identities of these police officers .","The witness is a gendarme officer and was the deputy commander of ORG at the time of the events .","On DATE in question a villager came to the station and explained that he had found CARDINAL bodies in the fields . He and his superior , together with a number of soldiers under their command , went to the scene , which was situated QUANTITY away from the station and QUANTITY from the main road . They checked the pulses of the CARDINAL men and established that they were dead .","When the witness reached the area where the bodies were found , he formed the opinion that it was the ORG who had killed the CARDINAL men , possibly because the ORG members had suspected that the CARDINAL men were working for the ORG authorities .","It would not have been possible to reach the spot where the bodies were buried by car ; only a tractor could have reached it . However , there were no tyre marks or foot prints near the scene . Similarly , there were no blood stains in the vicinity . The witness did not have any idea whether the CARDINAL men had been killed on the spot where their bodies were found . If the men had been shot there , the shooting would not have been heard from the station because it was too far away .","The only road to reach the site was the CARDINAL that ran between the town of PERSON and the city of GPE . This road was under constant surveillance by soldiers from his station . All vehicles and persons travelling on this road were searched .","His superior searched the bodies for any identification documents but , CARDINAL wedding rings , he did not find anything to identify the deceased men . They also asked for support teams , CARDINAL soldiers , to search the area for any evidence . None was found . They then informed the local prosecutor and handed the investigation over to him . His station continued to inform the investigating prosecutor DATE about any developments . He could not remember whether any inhabitants of villages in the vicinity had been questioned to establish whether they had seen or heard anything . If there had been any valuable information , it would have been mentioned .","The witness is a gendarme officer and was commander of ORG at the time of the events . The witness confirmed the sequence of events as described by his deputy PERSON above .","The witness was asked by ORG to establish whether the killings had political connotations ( see paragraph CARDINAL above ) . He was not informed that the deceased men had disappeared after a judge had ordered their release . In the course of his investigation in DATE after the discovery of the bodies , the witness visited the scene where the bodies had been found and also spoke to the local people who might have been able to provide crucial information . The names of those he questioned were recorded in his DATE reports . He continued this investigation until he left his post later in DATE , but the investigation was continued by his successor .","The ropes used to tie the hands of the deceased men were cut from the bodies by the witness and the soldiers under his command and left at the scene . As , in the opinion of the witness , the ropes had no evidential value , he did not deem it crucial to take them and examine them . Similarly , there was no need to record in his report that he had asked for an additional CARDINAL soldiers to help search the site .","A car leaving ORG and going in the direction of the place where the bodies were found would have gone through CARDINAL check points ; CARDINAL was the check point just outside ORG and manned by police officers from ORG and the second was outside the ORG gendarme station , manned by the soldiers under his command . As there were not very many cars passing along the road outside the station , each car and its passengers were searched thoroughly . Even police cars or ambulances were checked .","A description of the relevant domestic law may be found in PERSON v. GPE ( nos . CARDINAL\/CARDINAL and GPE , \u00a7 \u00a7 CARDINAL , ORG CARDINALX ) ."],"violated_articles":["13","2","3","38"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70449","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2005,"docname":"CASE OF LUKENDA v. SLOVENIA","importance":1,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"John Hedigan","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was injured at work in a lignite mine . Since then , he has been disabled and in receipt of disability benefits . His employer had taken out accident insurance for him with an insurance company , T. ( \u201c ZT \u201d ) . His disability was assessed at PERCENT . In DATE ZT paid partial disability benefits .","On DATE the applicant instituted civil proceedings in ORG ( PERSON sodi\u0161\u010de v PERSON ) against ZT claiming a PERCENT increase in his disability benefits on the basis of an expert medical opinion . He also sought an exemption from court fees .","On DATE the applicant lodged pleadings and additional evidence and requested the court to assign an independent medical expert to determine the extent of his disability . He submitted additional documents and pleadings on DATE , DATE , DATE , CARDINAL and DATE and DATE .","On DATE a hearing was held to consider the applicant 's request for the appointment of a medical expert . Although the request was granted , the appointment was not made .","On DATE the applicant submitted documents and requested the court to issue the order appointing the medical expert .","On DATE the court appointed a medical expert to determine the extent of the applicant 's disability . He submitted his report on DATE .","On DATE the applicant filed pleadings and increased his claim by PERCENT .","On DATE the applicant filed pleadings and requested that an additional opinion be sought from the appointed expert .","On DATE a hearing was held and the court decided that additional clarifications were required from the expert .","On DATE the court reappointed the same expert with instructions to submit an additional opinion .","On DATE the expert submitted an additional opinion , which was served on the parties .","On DATE and CARDINAL DATE the applicant made requests for a hearing .","On DATE the court held a hearing and decided to deliver a written judgment .","On DATE the applicant 's lawyers received the judgment , which upheld the applicant 's claim in part .","On DATE the applicant appealed . ZT cross - appealed .","On DATE ORG ( PERSON v PERSON ) allowed the applicant 's appeal in part . It increased the level of his disability benefits and awarded the applicant costs and expenses . The decision became final DATE .","On DATE the judgment was served on the applicant 's lawyers .","The relevant provisions of LAW ( PERSON ) read as follows :","\u201c Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law . ... \u201d","\u201c Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a ORG or local authority or as a holder of public office . ... \u201d","\u201c A court with jurisdiction to review administrative decisions shall [ have jurisdiction to ] determine the legality of final individual decisions by ORG or local authorities or holders of public office concerning the rights or obligations or legal entitlement of individuals and organisations , if no other legal protection is specifically provided .","If no other legal protection is provided , the court with jurisdiction to review administrative decisions shall also [ have jurisdiction to ] determine the legality of individual acts and decisions which encroach upon the constitutional rights of the individual . \u201d","\u201c The Constitutional Court shall hear :","... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom ;","...","Unless otherwise provided by law , the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted . The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures . \u201d","The relevant provisions of LAW ( Zakon o Ustavnem sodi\u0161\u010du ) read as follows :","\u201c ORG is the highest body of judicial authority for the protection of constitutionality , legality , human rights and basic freedoms ...","Decisions of ORG are legally binding . \u201d","\u201c Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a ORG body , local body or statutory authority may lodge a constitutional appeal with ORG , subject to compliance with the conditions laid down by LAW . ... \u201d","\u201c A constitutional appeal may be lodged only after all legal remedies have been exhausted .","Before all special legal remedies have been exhausted , ORG may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act . \u201d","In a decision of DATE ( no . Up CARDINAL ) , ORG ( ORG sodi\u0161\u010de ) ruled that constitutional appeals under LAW were admissible in length of proceedings cases where the proceedings were still pending . However , it further stated that , in order to ensure the right to due process of law in the NORP legal system , the only proper judicial protection available was through an action in the administrative courts . A constitutional appeal was , as a rule , admissible only after recourse to that legal remedy .","NORP In a decision of DATE ( no . Up CARDINAL ) , ORG ruled that , once the court proceedings had been concluded , an individual could no longer bring an action in the administrative courts complaining about the length of proceedings . Therefore , since there was no longer any violation to be remedied , it was no longer possible to lodge a constitutional appeal .","In a decision of CARDINAL DATE ( no . CARDINAL ) , ORG held that where , because the substantive proceedings had ended , an action to complain of the length of proceedings could no longer be brought in the administrative courts , it was still open to the alleged victim to seek compensation in civil proceedings .","The Administrative Disputes Act CARDINAL ( Zakon o upravnem sporu ) provides for the protection of the constitutional right to a trial within a reasonable time through administrative proceedings in the administrative court and , on appeal , in ORG sodi\u0161\u010de ) . Under section CARDINAL(CARDINAL ) and ( CARDINAL ) the court has a broad discretion to adapt its decision to the nature of the violated constitutional right , to order adequate redress , and to decide the applicant 's claim for damages . Under section CARDINAL it is possible to seek a declaration that there has been a violation of a right guaranteed by LAW and compensation for any loss . In addition , under LAW , a temporary injunction may be sought to prevent serious harm or to guard against an imminent threat of violence .","In case no . U CARDINAL\/CARDINAL , ORG ( ORG sodi\u0161\u010de ) found on DATE that the right to a trial within a reasonable time had been violated in a case which had been pending before ORG for DATE . However , on DATE ORG quashed the judgment on appeal , as the proceedings had terminated by the time of the appeal . On DATE ORG dismissed the constitutional appeal ( no . CARDINAL ) because the proceedings in question had ended and the alleged victim could seek compensation in civil proceedings .","Similarly , in case no . U CARDINAL\/CARDINAL - DATE , ORG rejected on DATE a complaint concerning the length of the proceedings because the proceedings in question had ended shortly after the complaint had been lodged . On CARDINAL DATE ORG upheld the judgment on appeal .","In case no . U CARDINAL\/CARDINAL - CARDINAL , ORG dismissed on CARDINAL DATE a claim alleging a violation of the right to a trial within a reasonable time that had been lodged on DATE . This decision was upheld on appeal on CARDINAL DATE . The proceedings before CARDINAL levels of jurisdiction had lasted DATE and DATE .","In case no . U CARDINAL\/CARDINAL - CARDINAL , ORG held on DATE , in proceedings that had started on DATE , that there had been a violation of the right to due process . The proceedings had lasted DATE before CARDINAL level of jurisdiction .","If a court is responsible for undue delay in the proceedings and an individual has sustained damage as a result , he or she may claim compensation from the ORG under LAW CARDINAL ( PERSON zakonik ) . The person seeking compensation will thus have to prove , firstly , that there has been a delay in the proceedings , secondly , that damage has occurred , and , thirdly , that there is a causal link between the conduct of the court and the damage sustained . However , the PERSON does not provide specifically for compensation for non - pecuniary damage in such cases .","In a judgment of DATE of ORG ( Okro\u017eno sodi\u0161\u010de v PERSON ) , the damages awarded amounted to QUANTITY ( ORG ) , but were reduced on appeal on DATE by ORG to less than LAW .","In a judgment of DATE of ORG , which was upheld on appeal on DATE by ORG , a sum of approximately ORG CARDINAL,CARDINAL was awarded .","Section CARDINAL(CARDINAL ) of LAW ( Zakon o sodi\u0161\u010dih ) provides that judges shall determine rights and obligations and criminal charges independently and impartially and without undue delay .","Section CARDINAL of the LAW provides that , when determining the number of judges to be appointed to a specific court , ORG ( sodni svet ) shall have regard to the criteria laid down by the Minister of ORG , the average number of cases dealt with by the court in DATE , any anticipated changes that may affect that number , and the average number of new actions brought in the court in DATE . Under the Act , the Minister of ORG is empowered to vary the criteria in the light of the complexity of the cases and changes in the manner in which they are being processed .","Section DATE provides that in the event of a delay in the proceedings any party may lodge a request for supervision ( nadzorstvena prito\u017eba ) with the president of the court . The president of the court may request the presiding judge to report on progress in the proceedings , and is required to indicate in writing to the presiding judge any irregularities he finds . He may put the case on the priority list or set deadlines for procedural measures . If the delay has been caused by a heavy caseload , he may order the case concerned or other cases to be transferred to another judge . He may also propose measures under the provisions of LAW .","If the request for supervision is lodged with ORG or the president of a higher court , they will refer it to the president of the relevant court and may request a report on the measures undertaken to expedite the proceedings .","NORP The Minister of Justice or ORG may request the president of the court to submit a report on all requests for supervision lodged within a certain period and the measures undertaken to resolve the issues .","In accordance with section DATE , the president of a higher court may , of his own motion or at the request of the Minister of ORG , a disciplinary prosecutor or a disciplinary court , request an examination of the functioning of the court and submit the findings to the Ministry .","As part of a package of measures to guarantee the effectiveness of the Convention machinery , ORG adopted a resolution on DATE ( Res(CARDINAL)CARDINAL ) on judgments revealing an underlying systemic problem . After emphasising the interest in helping the ORG concerned to identify the underlying problems and the necessary execution measures ( paragraph CARDINAL of the preamble ) , it invited the ORG \u201c to identify in its judgments finding a violation of the ORG what it considers to be an underlying systemic problem and the source of that problem , in particular when it is likely to give rise to numerous applications , so as to assist GPE in finding the appropriate solution and ORG in supervising the execution of judgments \u201d ( paragraph I of the resolution ) . This resolution has to be seen in the context of the growth in the ORG 's caseload , particularly as a result of series of cases deriving from the same structural or systemic cause ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95801","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2009,"docname":"CASE OF IEREMEIOV v. ROMANIA (No. 1)","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award","judges":"Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in GPE .","At the material time he was a journalist at the newspaper ORG in GPE .","On DATE the applicant attended an official meeting between the prefect and representatives of the interns from the hospitals in the county who were on strike . PERSON , CARDINAL of the interns ' representatives , stated :","\u201c Because I refused to prostitute myself with Doctor [ P. ] , Professor [ NORP ] dismissed me from ORG . \u201d","On DATE the newspaper ORG published an article by the applicant . The relevant parts read as follows :","\u201c Scandal in the medical world in GPE","The president of ORG , PERSON [ GPE ] , says that ' Dr [ P. ] behaves in certain ways that we all know '","A medical intern from GPE , whose name we shall not yet make public , declared on DATE , in front of the prefect [ GPE ] , that the director of ORG , Dr [ P. ] , had attempted to sexually blackmail her . ' Because I refused to prostitute myself with Doctor [ P. ] , Professor [ NORP ] dismissed me from ORG declared the intern . The president of ORG in GPE , PERSON [ GPE ] , declared that he had not known about this case of sexual harassment , which he learned of only at the meeting with the prefect . ' Dr [ P. ] behaves in certain ways that we all know ' said PERSON [ GPE ] ...","Although we tried to get his comments on the accusations brought against him , Dr [ P. ] was unavailable . \u201d","A photo of P. featured in the article .","On DATE P. lodged a criminal complaint for defamation against the applicant with ORG . His complaint also concerned the company which published the newspaper .","ORG heard evidence from ORG , who admitted to having made the assertion reproduced by the applicant but denied having given her permission for its publication . The prefect also confirmed that an intern had accused P. of sexual aggression during the meeting .","The applicant was heard by the court on QUANTITY occasions . He pleaded not guilty and relied in his defence on his right to freedom of expression and the right to provide information about public figures .","On DATE the ORG gave judgment . It acquitted the applicant on the ground that he had not intended to denigrate P. It found that the expression \u201c sexual harassment \u201d had not harmed P. 's dignity as it was a stylistic choice by the applicant .","Both parties appealed to ORG .","On DATE the court was addressed by the parties ' counsels , who defended orally the grounds for their respective appeals . PERSON 's lawyer asked for the applicant 's conviction . The applicant 's lawyer and the company 's representative requested that P. be compelled to pay court fees . The applicant was invited to speak only before the end of the hearing ( ultimul cuv\u00e2nt al inculpatului ) . In his address he asked that P. 's appeal be dismissed .","The final decision was adopted on DATE . ORG quashed the judgment of DATE , re - examined the evidence and found as follows :","\u201c [ the journalist ] did not confine himself to merely providing information about the criticisms [ expressed against P. ] but added his own appreciation , which went beyond [ C.M.O. ] 's statements .","...","Through its title and content , the article contains untrue statements and allegations and personal appreciations by [ the applicant ] which , if true , would render the victim liable to a criminal penalty or expose him to public opprobrium .","By publishing the victim 's photo , and by presenting the information that a scandal had been caused in the PERSON medical world by [ P. ] 's behaviour ... [ the applicant ] acted with intent to denigrate the victim , the article being manifestly defamatory .","The words \u201c sexual blackmail and sexual harassment \u201d can not be regarded as having stylistic and literary value when an individual 's image , dignity and honour are at stake . \u201d","ORG noted that a certain degree of aggressiveness was common in journalism . It therefore , although the facts met the legal criteria to constitute the criminal offence of defamation , the acts perpetrated and their consequences were not severe enough to come within the sphere of criminal law . Consequently , it acquitted the applicant and imposed an administrative fine of CARDINAL NORP lei ( ROL ) .","The court also found that the conditions had been met for the applicant 's civil liability , and that of the publishing company , in respect of the prejudice caused to the victim . In consequence , it ordered the applicant and the company to pay ROL CARDINAL,CARDINAL,CARDINAL to P. as compensation for non - pecuniary damage and ROL CARDINAL,CARDINAL,CARDINAL for costs . Lastly , it ordered them to pay ROL CARDINAL,CARDINAL to the ORG in court fees .","On DATE the applicant paid the administrative fine .","The relevant provisions of ORG concerning insult and defamation and liability for paying damages in force at the material time are described in PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE .","LAW has been amended repeatedly and in DATE the ORG on insult and defamation were repealed ( for details , see PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) .","NORP However , in decision no . CARDINAL of DATE ORG declared unconstitutional the removal from LAW of the ORG on insult and defamation .","Law no . CARDINAL amended LAW and made it mandatory for an appeal court to hear the accused where the first - instance court had acquitted him or her . Currently , where an appeal court quashes a judgment given by a first - instance court , it must decide on the evidence to be adduced and set a date on which it will take a statement from the accused if the latter was not heard or if he or she was acquitted by the first - instance court ( Articles DATE \u00a7 DATE , as amended ) ."],"violated_articles":["10","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57600","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1987,"docname":"CASE OF W. v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved","judges":"C. Russo;N. Valticos","text":["ORG The applicant , who is a NORP citizen born in DATE and lives in GPE , was married in DATE . He and his wife have CARDINAL children ; the present case concerns only the youngest of them , S , who was born on DATE . The couple has a history of serious marital and financial difficulties .","ORG On DATE , when the applicant \u2019s wife was suffering from post - natal depression and alcoholism , S was placed by his parents into the voluntary care ( see paragraphs CARDINAL below ) of the local authority ( \" the ORG \" ) . He stayed with foster parents on a temporary basis , returned home on DATE at the applicant \u2019s request and was again placed voluntarily in care on DATE . After DATE at home on DATE , he was again voluntarily returned to care and remained with foster parents until DATE He then spent a period with his parents before once more , on DATE , returning to and remaining in voluntary care , subject to parental visits and some weekends at home .","ORG Following a suggestion made by her to the ORG \u2019s social workers , the applicant \u2019s wife took S home on DATE but subsequently changed her mind and returned him to the foster parents . On DATE , the ORG , which had already given previous consideration to such a course , passed resolutions assuming the parental rights of the applicant and his wife over S ( see paragraph CARDINAL below ) . It had apparently not informed them that such resolutions were proposed , but on DATE it reached an agreement with them that S would be returned to them in DATE if they overcame their domestic difficulties . In any event , the applicant did not exercise his right to object to the resolution affecting him ( see paragraph CARDINAL below ) .","ORG On DATE , DATE after the applicant \u2019s wife had been admitted to hospital for treatment following a deterioration in her alcoholism , the ORG reviewed the family circumstances . It was concluded that the prospects of ORG \u2019s rehabilitation were poor but that the aforementioned agreement should be retained , the social workers responsible considering that there could be no postponement of the date for ORG return to his natural parents beyond DATE . In case it proved impossible to effect the return at that time , it was also agreed that the possibility of finding long - term foster parents should be examined as a contingency plan .","ORG S spent DATE over DATE with his natural family . The applicant continued to look after his CARDINAL older children but in DATE they were placed temporarily into voluntary care as he was threatened with loss of his job if he did not resume work ; the placement was intended to end on his wife \u2019s discharge from hospital .","A social worker saw the applicant \u2019s wife in hospital on DATE and reported that she seemed worried at the prospect of the children \u2019s return home . The social worker warned her that , as regards S , the alternative would be his placement in long - term care . On DATE , the social worker saw the applicant in connection with his matrimonial difficulties and the future of the CARDINAL older children , but the prospect of S not being returned to his natural parents was not discussed .","ORG On DATE , the ORG passed resolutions to assume parental rights over the CARDINAL older children . According to the applicant , he raised no objection since it was agreed between the parents and the ORG \u2019s care officers that these children would be returned to their parents over a period . They were in fact returned on CARDINAL DATE and have remained at home ever since . The applicant and his wife contend that they understood the agreement to envisage the return of S as well .","ORG According to the report of ORG ( see paragraph CARDINAL below ) , the social workers responsible for S and the remainder of the applicant \u2019s family reached the conclusion in DATE or DATE , from their nearly continuous review of the circumstances , that the arrangement for returning S to his natural parents would not work in view of the prognosis for the applicant \u2019s wife \u2019s alcoholism and the apparent breakdown of the marriage . On an unrecorded date , an unspecified person or persons in the ORG \u2019s ORG decided that ORG should not return home but should be placed with foster parents on a long - term basis with a view to adoption and that the natural GPE access to him should be restricted . There is no recorded minute of any decision to this effect having been taken by the ORG in a formal manner at that time and the possibility of such placement was apparently not mentioned to the applicant when the social workers saw him on DATE nor to his wife on DATE , when they visited her to inform her of the resolutions concerning the CARDINAL older children . Although it appears from ORG report that the parents had on previous occasions been made aware of the possibility that S might be placed in long - term care , he was clearly not satisfied that the likely course of events with regard to S had been made sufficiently plain to them and that they had been properly consulted before the decision was taken not to return the child to them .","In any event , on CARDINAL and DATE respectively , the applicant and his wife were informed of the decision orally by the social workers responsible . According to ORG report , the social worker dealing with the case was not sure that even then either parent clearly understood what was being said about PERSON \u2019s future , their concern at the time being \" totally focused \" on the CARDINAL older children .","ORG On DATE , the ORG \u2019s Adoption and ORG , without further reference to the applicant or his wife , considered and approved the proposal to place S with long - term foster parents and to restrict his natural GPE access to him . The ORG was told by the social workers responsible that the applicant and his wife , who were neither present at nor knew of the meeting , disagreed with the proposal . The minute of the ORG \u2019s discussion records : \" It was suggested that if there was to be no parental contact the mother particularly would \u2018 search to the ends of the earth for [ ORG . However , parental contact to be controlled and not at [ the foster GPE ] home . \"","The ORG informed ORG in the course of his enquiries that , in its view , TIME reflected the intention that the applicant and his wife should not know where PERSON was placed . In any event , it clearly records a decision that access should be restricted , both as to location and frequency , but not terminated .","ORG On DATE , the senior social worker responsible for the case visited the applicant and his wife to inform them that S was being moved to new foster parents ; the record of his visit states that he told them that he was not prepared to disclose where the foster parents lived . In addition , it appears that since the Area Director of ORG considered that access would jeopardise the chances of S developing a satisfactory relationship with the new foster parents , he had decided that the applicant and his wife should not be allowed to visit S. It is not revealed how , if at all , this decision to terminate access derived from the discussions of ORG as recorded in the minute quoted above . According to the Government , the applicant was made aware of this decision in DATE","ORG On DATE , S was moved to a new foster family for long - term fostering , with a view to adoption .","ORG Some time after DATE and apparently as a result of the shock of being sentenced to prison for theft , the applicant \u2019s wife made a remarkable recovery from her alcoholism . The couple also resolved their matrimonial difficulties . They continued to seek access to S and protested to ORG at the refusal thereof ; a meeting for them to see the child at the social services building was eventually arranged in DATE . Having consulted solicitors in DATE with a view to challenging the ORG \u2019s actions , the applicant and his wife were granted legal aid to apply to a juvenile court to discharge the ORG \u2019s parental rights resolutions concerning S ( see paragraph CARDINAL below ) and proceedings were issued on DATE . At the request of the ORG , the hearing , originally fixed for DATE , was postponed to DATE . On DATE , the juvenile court held that both of the resolutions should \" henceforth be terminated \" , thereby permitting S to be returned to the applicant and his wife .","ORG On DATE , the ORG appealed to ORG against the juvenile court \u2019s decision ( see paragraph CARDINAL below ) and also issued proceedings in the local ORG of ORG to have PERSON made a ward of court ( see paragraphs DATE below ) .","There followed a period of uncertainty as to which of these proceedings the ORG would pursue . On DATE ( the last possible day to prevent the wardship from lapsing ; see paragraph CARDINAL below ) , the ORG took out a notice for an appointment , to be held on DATE , for hearing the summons initiating the wardship . On DATE , when the ORG applied to ORG for directions , the applicant \u2019s solicitor challenged the propriety of the wardship proceedings as a duplication of the jurisdiction and this question was referred as a preliminary issue to be heard before a ORG judge . On DATE , the judge permitted the ORG , which undertook to withdraw its appeal before ORG , to continue with the wardship proceedings ; he directed that the case be heard as soon as possible and ordered that it be set down in DATE , no earlier date being available having regard to the expected length of the hearing .","ORG The case was heard on CARDINAL and DATE . After evaluating the evidence submitted in relation to ORG \u2019s well - being and the applicant \u2019s circumstances ( including a report of DATE from an independent welfare officer ) , ORG held that the wardship should continue and directed that the child should remain with the foster parents with whom he had been placed in DATE ( see paragraph CARDINAL above ) : there was no longer any practical alternative to this , too long a period having elapsed since LOC \u2019s last contact with his natural parents ( on DATE ) for any change to be justified . ORG also held that the applicant and his wife should not have access to the child , noting that restoring rights of access would only encourage them in their attempts to have PERSON returned to them , a course which would not be in his best interests . However , in the course of his judgment , the judge stated :","\" I can only say that it is extremely unfortunate that these [ wardship ] proceedings were not heard within a matter of DATE after the [ juvenile court \u2019s ] decision . I see no reason why they could not have been ... However , the hearing did not take place and the parents and ORG are now faced with the fact that a further DATE have gone by in which ORG has become even closer to his foster parents . \"","\" ... I am not happy about the use of LAW [ of LAW DATE ] powers to change the status of the child and to cut the parents out of his life , and I am unhappy about a decision arrived at by the local authority without the parents being heard or having the opportunity to make their own representations to the decision - making body ... \"","The judge also commented on the \" massive help \" received by the parents from the social services .","ORG An appeal by the applicant to ORG was dismissed on DATE . ORG expressed its sympathy for the natural parents , describing the case as \" tragic \" , but stressed that its duty was to arrive at a decision which was in the best interests of the child and that \" the question from beginning to CARDINALend is whether the child \u2019s best interests would be served by remaining with his foster parents or by being transferred to his natural parents \" . Although the ORG recognised that \" both the mother and the father deserve all the credit for pulling themselves out of an appalling situation \" and that they had \" succeeded remarkably \" in coping with their older children , it found that S presented \" a different problem \" in the light of the fact that he had spent almost the whole of his life in the care of other people .","ORG The applicant referred the matter to ORG , who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions .","In his report of CARDINAL DATE , ORG upheld the applicant \u2019s allegation of maladministration in the way in which the ORG had taken its decisions concerning ORG , stating in particular that he criticised \" the failure to put the parents properly in the picture before firm decisions were taken \" .","ORG On DATE , the foster parents with whom S had been placed in DATE were granted leave to apply to adopt the child ( see paragraph CARDINAL below ) . An adoption order relating to him was made on DATE , ORG having decided to dispense with the applicant \u2019s consent ( see paragraph CARDINAL below ) .","ORG In the law of GPE and GPE , there are a number of different and partially co - ordinated procedures for dealing with the welfare of children . Whilst the oldest of these is the wardship jurisdiction of ORG , it has for DATE co - existed with , but not been ousted by , various statutory provisions whereby a child who is at risk may be put into the care of a local authority .","Although the terms are not wholly accurate , the legislation is commonly divided into CARDINAL categories : the first provides for \" compulsory care \" , by establishing machinery whereby a local authority can obtain a court order committing a child to its care ; the second concerns \" voluntary care \" , the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts . At any given time , there are CARDINAL children in public care in GPE and GPE , of whom CARDINAL are not living with their parents or a relative .","The statutory provisions have been amended on several occasions and many of them were repealed and replaced by LAW ( \" LAW \" ) , a consolidating measure the greater part of which came into force on DATE . In the following summary of the law in force at the time of the present case , the original enactments are cited first and any corresponding provision of the DATE Act in force at the relevant time is indicated in square brackets .","By way of general background information , the summary covers all CARDINAL of the procedures referred to above ( namely those relating to compulsory care , voluntary care and wardship ) , but in the present case it was the machinery for voluntary care and the wardship jurisdiction of ORG which were directly relevant .","ORG The principal statute concerning compulsory care is ORG \" LAW \" ) , as amended by LAW DATE and then partly replaced by LAW ; it enables a local authority to obtain , as a temporary measure , a \" place of safety order \" and , as longer - term measures , a variety of other orders .","ORG Under section CARDINAL ) of the CARDINAL Act , any person , including a local authority , may apply to a justice of the peace for authority to detain a child and take him to a place of safety ; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe , inter alia , that the child \u2019s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill - treated , or that he is exposed to moral danger .","A \" place of safety order \" so granted lasts for a maximum of DATE and can not be extended . The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it .","If the local authority wishes to retain the child in protective surroundings after the DATE period , it has either to make the child a ward of court ( see paragraphs DATE below ) , or to institute care proceedings under LAW ( see paragraphs CARDINAL - CARDINAL below ) , or to apply to a justice or a GPE court for an interim order under section PERSON ) ( see paragraph CARDINAL below ) ; if an application of the last kind is refused , the child \u2019s immediate release \" may be ordered \" .","ORG Under sections CARDINAL and CARDINAL ) of the DATE Act , a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is , subject to certain exceptions , under a duty to institute care proceedings by bringing the child before a juvenile court .","ORG In care proceedings instituted by a local authority , the parties are the local authority and the child , but not the latter \u2019s parents . The child is entitled , subject to his means , to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer . If the child is of sufficient competence , he may decide that he wishes to be separately represented .","A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority . As a matter of practice , the court will also allow such parent to cross - examine witnesses on behalf of the local authority and to have separate legal representation .","ORG If the court before which the child is brought is satisfied that one of the grounds specified in LAW exists and that the child is in need of care or control which he is unlikely to receive unless an order is made , it may make , inter alia , a supervision order , a care order or an interim order . The specified grounds include those on which a place of safety order may be made ( see paragraph CARDINAL above ) .","ORG A supervision order is an order placing the child under the structured supervision of the local authority ; subject thereto , he may continue to live with his parents .","ORG A care order is an order committing the child to the care of the local authority . The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order ( section CARDINAL of the DATE Act [ ORG ) of the DATE Act ] ) , except that it can not cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it can not agree to the child \u2019s adoption .","ORG An interim order is a care order limited to a specified period not exceeding DATE ; it may be renewed on application ( section QUANTITY of the DATE Act ) . It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made ( section CARDINAL(CARDINAL ) ) or , alternatively , during the currency of a place of safety order ( see paragraph CARDINAL above ) . The powers and duties of the local authority under an interim order are the same as under a full care order ( see paragraph CARDINAL above ) .","ORG A full care order normally terminates when the child in question attains the age of DATE ( section CARDINAL(CARDINAL)(b ) of the DATE Act ) .","In addition , under sections CARDINAL ) and CARDINAL ) , the juvenile court may , on application by the child or his parent on the child \u2019s ( but not his own ) behalf and if it considers it appropriate , discharge the care order and may , on discharging it , make a supervision order in respect of the child . Such applications may be made DATE or , with the juvenile court \u2019s permission , more frequently ( section ORG ) ) . The paramount consideration in deciding whether to discharge the order is the interests of the child .","ORG Under sections CARDINAL(CARDINAL ) and ORG of the DATE Act , the child in respect of whom the care order was made , or his parent on the child \u2019s ( but not his own ) behalf , may appeal to ORG against the making of a care order , against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge . ORG will review the decision by way of re - hearing the case . From ORG a further appeal may , with leave , be made to ORG by way of case stated ; thereafter an appeal lies to ORG and , in rare cases , to ORG .","The local authority has no general right to appeal against a juvenile court \u2019s refusal to make a care order , except on a point of law to ORG .","ORG The principal statute concerning voluntary care is LAW DATE ( \" LAW \" ) , as amended by LAW DATE and then replaced by LAW . This legislation in effect enables a parent to place his child into the care of a local authority ; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently .","ORG LAW the DATE LAW ] imposes on the local authority a duty to receive into its care a child under DATE where it appears , inter alia , that his parents or guardian are for the time being or permanently prevented by illness , incapacity or other circumstances from providing for his proper accommodation , maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child \u2019s welfare . Whilst the authority must , save as otherwise provided in the LAW , keep the child in its care so long as his welfare requires it and he has not attained the age of DATE , it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child \u2019s welfare .","ORG LAW the DATE LAW ] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care . However , if the child has been in care throughout DATE , no person may take him away unless he has given CARDINAL days\u2019 notice of his intention to do so or has the authority \u2019s consent ( section CARDINAL(CARDINALA ) [ CARDINAL ) ] ) .","Moreover , if a parent requests the return of the child , the authority is not compelled to comply regardless of his welfare ( ORG v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . If it then considers the transfer of care to the parent to be inconsistent with that welfare , it may either pass a parental rights resolution ( see paragraph CARDINAL below ) or apply to make the child a ward of court ( see paragraphs DATE below ) .","ORG If it appears to a local authority in relation to any child who is in its care under LAW [ CARDINAL of the DATE Act ] that , inter alia , a parent of his is unfit to have the care of the child on account , notably , of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent , the local authority may resolve that there vest in it the parental rights and duties with respect to that child ( section CARDINAL(CARDINAL ) [ CARDINAL ) ] ) . The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property , including \" a right of access \" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders ( section CARDINAL(CARDINAL ) of the DATE Act [ CARDINAL(CARDINAL ) of LAW ] and section CARDINAL(CARDINAL ) of LAW DATE ) .","Before passing a parental rights resolution , the local authority must consider a report from its ORG on the desirability of assuming parental rights , which report should contain all the material necessary for the proper exercise of the authority \u2019s discretion . In deciding the matter , the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account .","ORG If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known , he must be served with notice of it , indicating his right to object by counter - notice within DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ] ) . If such objection is made , the resolution lapses on the expiry of DATE from service of the counter - notice ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) . However , within that period , the local authority may \" complain \" to a juvenile court , in which event the resolution will not lapse until the complaint is determined ; on hearing the complaint , the court may order that the resolution is not to lapse , provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child \u2019s interest ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) ] ) .","ORG A parental rights resolution continues in force until the child attains the age of DATE , unless it is previously rescinded by the local authority or terminated by a juvenile court ( section CARDINAL of LAW [ CARDINAL of the DATE Act ] ) .","The parent concerned , even if he did not originally object to the parental rights resolution , may apply to a juvenile court for its discharge . The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child \u2019s interests ( section CARDINAL(CARDINAL)(b ) [ CARDINAL(CARDINAL)(b ) ] ) . An application based on the original foundation for the resolution can , however , be entertained only if lodged within DATE of its adoption ( section CARDINAL of the Magistrates\u2019 Court Act DATE ) .","ORG Under section CARDINAL of the CARDINAL Act [ CARDINAL of the DATE Act ] , an appeal ( by the parent or the local authority ) lies to ORG of ORG from the making by a juvenile court of an order confirming ( under section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) or discharging ( under section CARDINAL(CARDINAL)(b ) [ CARDINAL ) ] ) a parental rights resolution , or from a juvenile court \u2019s refusal to make such an order . A further appeal lies to ORG and , with leave , to ORG .","ORG of ORG has an inherent jurisdiction , independent of statutory provisions and deriving from the prerogative power of the ORG acting in its capacity as parens patriae , to make a child a ward of court .","ORG The effect of wardship is that custody , in a broad sense , of the child is vested in the court itself ; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever , notably as regards the care and control of and access to the child and his education , religion or property . In making such orders , the court is required to treat the child \u2019s welfare as the \" first and paramount consideration \" ( Guardianship of Minors Act DATE , section CARDINAL ) . Unless terminated earlier by order of the court , the wardship continues until the child attains his majority .","Where there are exceptional circumstances making it impracticable or undesirable for the ward to be , or continue to be , under the care of his parents , the court may make an order committing him to the care of the local authority ( LAW DATE , section CARDINAL(CARDINAL ) ) , subject to the power of the court to give directions ( Matrimonial Causes Act DATE , section CARDINAL(CARDINAL)(a ) ) . In such circumstances , custody of the child remains with the court and it is for the court , and not the local authority , to take major decisions regarding the ward \u2019s future ; it retains , inter alia , jurisdiction to make orders for access to the child .","PERSON proceedings may be instituted by anyone who can show an appropriate interest in the child \u2019s welfare . An application for a wardship order has to be made by originating summons . The child becomes a ward immediately the summons is issued but the wardship automatically lapses after DATE unless within that time an appointment is made for the hearing of the summons . This appointment is normally held before a registrar who , subject to an appeal to a judge , may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings .","A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child . From the judge \u2019s order , an appeal lies to ORG and thence , with leave , to ORG .","The child may be represented in wardship proceedings by a guardian ad litem appointed by the court ; this is usually the Official Solicitor , who is a full - time public employee entirely independent of the executive .","Under the Rules of ORG , it is possible to seek an order expediting the proceedings , notably if a party thereto is dilatory .","ORG The functions of a local authority in child - care matters are exercised and decisions are taken either by its ORG or by a sub - committee or an officer to whom powers have been delegated . At the time relevant to the present case , the practice varied from authority to authority , there being no precise requirements or guidance even of a non - statutory kind , and much depended on the nature or gravity of the decision to be taken . Whether the child is in its care by virtue of the DATE [ DATE ] or LAW , the local authority must give first consideration to the need to safeguard and promote the child \u2019s welfare throughout his childhood , and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them , having regard to his age and understanding ( section CARDINAL of LAW DATE [ CARDINAL ) of the DATE Act ] ) .","Authorities\u2019 decisions in this area are , in fact , often based on the outcome of case reviews or case conferences . The authority is under a statutory duty to review the case of each child in its care at DATE intervals ( section CARDINAL(CARDINAL ) of the DATE Act ) and , as a matter of practice , the child \u2019s position will in addition be regularly examined at case conferences . Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority \u2019s ORG , as well as by such other persons as health visitors , doctors and police officers .","ORG A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof , although he has no legal right to do so . His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority .","In the absence of legal proceedings , the parent can not compel the local authority to produce or permit inspection of TIME of its relevant meetings or reports produced thereat , although the authority has a discretion to allow such inspection . In proceedings for judicial review ( but not in juvenile court proceedings ) , the court may order the pre - trial disclosure of such documents , but only after leave to institute the proceedings has been obtained ( see paragraph CARDINAL below ) ; however , this would be a rare occurrence , the general rule being that the documents are privileged and not open to inspection .","ORG A parent whose child is in the care of a local authority is not automatically deprived of access to him . The continuation of access is , however , a matter within the discretionary power of the authority ( per Lord PERSON in ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Thus , under LANGUAGE law , the question whether and to what extent a parent is to have access to his child who is in public care was , at the relevant time , within the competence of the local authority to decide , without any application to a court .","Both the DATE [ CARDINAL ] Act and the DATE Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable : the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time .","ORG The statutory remedies described in paragraphs CARDINAL and CARDINAL - CARDINAL above , whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution , are directed to the order or resolution as such , there being , at the relevant time , no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child .","A decision of a local authority concerning access can , however , be challenged by way of an application for judicial review . Anyone who wishes to make such an application must first seek , normally within DATE of the decision , the leave of the court . The circumstances where judicial review will lie may be briefly summarised as follows :","( a ) the authority acted illegally , ultra vires or in bad faith ;","( b ) the authority failed to take into account relevant considerations , took account of irrelevant considerations or came to a decision to which no reasonable authority could have come ( Associated Provincial Picture Houses , Ltd. v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ;","( c ) the authority failed to observe statutory procedural rules or to act fairly ( see notably R v. ORG , ex parte C and R v. GPE , ex parte B , ORG , DATE ) .","The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision - making process itself , and the court will not act as a \" court of appeal \" from the body involved . Thus , where on a successful application for judicial review the court quashes an authority \u2019s decision , it will normally remit the matter to the authority for reconsideration ; it may , however , also direct the authority to reach a conclusion in accordance with the court \u2019s findings ( Rules of ORG , Order CARDINAL , rule ORG ) ) .","ORG In certain circumstances , the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former \u2019s care . The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation . In the leading case of ORG , ORG examined the relationship between the wardship jurisdiction and the authorities\u2019 statutory powers . Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions , notably on such matters as access to the child : the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise ( except on judicial review principles ; see paragraph CARDINAL above ) the exercise of discretion within the field committed to them by statute . Sometimes , however , the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court .","The foregoing limits on ORG powers apply only where the wardship proceedings concern a child who is already in public care . If he is not , ORG can examine fully such questions as access and make such order as it considers to be in his best interests .","ORG The inability of parents to approach the courts , save as explained above , where decisions are made by a local authority affecting access to their children led ORG , in ORG Social Security Adjudications Act CARDINAL , to modify the law on this point .","Under the new provisions - which came into force on DATE , that is after the events giving rise to the present case - , a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent . The latter then has a right to apply to a juvenile court for an access order , requiring the local authority to allow access subject to such conditions as the court may specify . Where an access order has been made , there is a right to apply for variation . An appeal against the juvenile court \u2019s decision lies to ORG . Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration .","This new remedy applies only to decisions refusing or terminating access ; in all other cases , the nature and extent of access remain within the local authority \u2019s discretion .","ORG In DATE , the Government published a Code of Practice on Access to Children in Care . This document stresses the importance of involving the child \u2019s natural parents in the local authority \u2019s decision - making process in this area and of informing them fully and promptly as to the substance of decisions concerning access .","ORG A court can not make an adoption order in respect of a child unless , inter alia , it is satisfied that each parent freely and unconditionally agrees ( LAW DATE , section CARDINAL ) . However , such agreement may be dispensed with upon a number of grounds specified in that section , notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties . In reaching any decision relating to the adoption of a child , a court must have regard to all the circumstances , first consideration being given to the need to safeguard and promote his welfare throughout his childhood ( Children Act DATE , section CARDINAL ) .","Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of ORG . On an application for leave , the court \u2019s function is to consider whether the proposed adoption application is one that might reasonably succeed , the merits of the matter being examined subsequently , once leave has been granted and after compliance with the requirements concerning notices and reports ."],"violated_articles":["6","8"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58917","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2000,"docname":"CASE OF SOBCZYK v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Georg Ress","text":["NORP In DATE a group of industrial enterprises in the coal industry was dismantled . As a result , the applicant was dismissed . On DATE ORG annulled his dismissal and ordered the Minister of Industry to assign a company to re - engage him . In DATE , ORG informed the applicant that the Niwka - Modrzej\u00f3w coal - mine had taken over certain obligations of his former employer and would re - engage him . However , the coal - mine refused to do so , considering that the applicant did not satisfy applicable medical requirements .","On DATE the applicant filed an action against the CARDINAL coal mine with ORG , claiming that he should be re - engaged to work in accordance with the judgment of the same court given on DATE , ordering that he be re - engaged to work as a manager . He also claimed compensation for the period for which he had remained unemployed as a result of the defendant \u2019s failure to comply with the DATE judgment .","On DATE the defendant company submitted its pleadings in reply to the applicant 's statement of claim . Subsequently there was an exchange of pleadings between the parties . In DATE the judge rapporteur set the date of the first hearing for DATE . Subsequently the applicant informed the court that he would be unable to attend this hearing for medical reasons .","At the hearing of CARDINAL DATE the court , at the request of both parties ' lawyers , stayed the proceedings . In DATE the applicant requested the court to order ORG to join the proceedings as co - defendant and to resume the proceedings . The court refused to resume the proceedings , considering that the applicable provisions of LAW did not allow for so doing .","NORP In DATE the applicant asked the court whether ORG had already been called to join the proceedings . Later in DATE he informed the court that he had withdrawn the power of attorney of his lawyer and requested the court to appoint a lawyer to represent him under the legal aid scheme . He also reiterated his request for the proceedings to be resumed . In a letter to the court of DATE , the applicant complained that the proceedings had exceeded a reasonable time .","On DATE the court resumed the proceedings and assigned a lawyer to represent the applicant . On DATE the applicant requested that the court summon the prosecutor to join the proceedings . The hearing to be held on DATE was adjourned as the defendant \u2019s representative had not been duly summoned . By a letter of CARDINAL DATE the applicant extended his compensation claim to CARDINAL ( old ) NORP zlotys .","NORP In DATE , following the increase of the applicant \u2019s claim , the case was transmitted to ORG which became competent to examine the case . On DATE the court fixed the date of the first hearing for DATE and summoned the Minister of Industry to join the proceedings as a codefendant .","On DATE the applicant complained to the Minister of ORG about the length of the civil proceedings and about ORG failure to assess correctly the value of his claim . On DATE the applicant complained again about the delay in the proceedings and requested ORG to order the Minister of Industry to join the proceedings as a co - defendant .","At a hearing on DATE , ORG ordered that ORG should join the proceedings as a co - defendant and requested the defendant enterprise to submit a list of posts in which the applicant could eventually be re - engaged . The applicant was requested to provide information about his earnings since his engagement by another company in DATE . The applicant submitted the requested information on DATE .","The next hearing was held on DATE . In order to establish the applicant 's state of health for the purposes of his claim for compensation for deterioration of his health brought about allegedly by stress originating from his dismissal , the court requested several public health care institutions to submit the applicant \u2019s medical records . The court further requested the defendant company to submit a description of health requirements for the posts in which the applicant could eventually be re - engaged . It also requested ORG as a co - defendant to submit documents concerning the take - over of the obligations of the applicant \u2019s former employer by the defendant coal - mine ORG , and in particular concerning the trade union \u2019s position relating to the possibility of re - engagement of former managers .","As the medical records requested by the court had not been submitted in their entirety , the hearings to be held on DATE and CARDINAL DATE were adjourned and the court urged the health care institutions concerned to submit them .","At a hearing held on DATE the court established that part of the applicant \u2019s medical records had been misplaced while being processed by the health care institutions . The applicant was therefore required to submit to the court his medical insurance booklet .","On DATE the applicant extended his compensation claim by a further claim for income from technical inventions which he was unable to obtain as a result of his dismissal .","At a hearing on DATE ORG questioned the parties and examined the applicant \u2019s medical documents . The court further prepared a list of questions concerning the applicant \u2019s health , to be answered by a neurologist , a psychiatrist and a psychologist , with a view to establishing whether the applicant suffered from any ailments which could have originated from or be linked to his dismissal . On DATE a request to prepare a medical expert opinion , a list of questions and the applicant \u2019s medical records were submitted to ORG of ORG . The expert report was to be prepared within DATE .","By a letter of DATE the President of ORG informed the applicant that the expert opinion would not be ready before DATE .","On DATE the applicant complained to the court and to the Minister of ORG , alleging that the court had amended the list of questions to be answered by the medical experts and had deleted several questions which were of direct relevance for the outcome of the case . The applicant indicated that he had become aware of these changes only during his medical examination at ORG . He requested the court to put these questions to the experts . This letter apparently remained unanswered .","NORP In a letter of CARDINAL DATE the President of ORG brought to the attention of the President of ORG of ORG that the proceedings in the applicant 's case were unacceptably long and requested him to supervise their conduct , in particular with a view to ensuring that the expert opinion be prepared with no delay .","On DATE the Minister of Justice informed the applicant that his complaint about the length of the proceedings had been forwarded for investigation to the President of ORG .","The medical expert report was submitted to ORG on DATE , after the court had urged the experts in writing CARDINAL times , on DATE , CARDINAL May , DATE , DATE and CARDINAL DATE , and twice by telephone on DATE and on DATE , to expedite their work .","On DATE only a part of the applicant \u2019s medical files was returned by the experts . On DATE the applicant requested the court to reconstruct the part of the case - file which had allegedly been lost during the transfer from ORG . He reiterated his complains about the length of the proceedings . The remaining part of the files was submitted to the court on DATE . On DATE the court set the date of the next hearing for DATE .","On DATE the Minister of Justice informed the applicant that the missing medical files had been found and that the next hearing before ORG had been fixed for DATE , with a view to pronouncing the judgment on DATE .","At the hearing held on DATE the applicant 's lawyer was not present for medical reasons . The court decided to request the local Bar to assign a new lawyer to the case and to request ORG to submit an additional expert opinion in order to establish the percentage of the applicant 's health 's loss which could be attributed to his dismissal . On DATE the case - file was again sent to ORG for a further report to be prepared .","On DATE the applicant submitted pleadings to the court in which he argued that ORG should order his re - engagement . On DATE the court urged ORG to submit the complementary medical opinion .","On DATE the President of ORG forwarded to the applicant a letter from the President of ORG of ORG explaining that the delay in the proceedings in DATE had been caused by the experts ' failure to prepare their report in due time . On DATE the additional expert report was submitted to the court . On DATE the presiding judge fixed the date of the next hearing for DATE and ordered the defendant to submit a list of salaries earned by persons employed in posts comparable to that of the applicant in order to establish the income which he had lost following his dismissal .","On DATE the applicant complained to ORG about the length of the proceedings . He submitted , in particular , that since DATE the court had failed to take any steps to ensure that the expert opinion be prepared , that the court had not reacted to the fact that ORG had persistently failed to send its representative to the hearings , that the court had ordered him to submit the same documents several times and that hearings had not been held often enough .","At a hearing on DATE the court again questioned the applicant and decided that the medical report should be submitted to ORG so that its specialists could reply to objections that the applicant had expressed in its regard .","In their further report of CARDINAL DATE the medical experts estimated the applicant 's health loss at PERCENT .","On DATE the applicant submitted further pleadings to the court . He requested that the defendants apologise in writing for his unjustified dismissal and publish the apology in the gazette of the mining industry .","In his pleadings of CARDINAL DATE the applicant requested the court to give a decision to the effect that he should be employed by the defendant enterprise PERSON as Chief PERSON . In his further pleadings of CARDINAL DATE he requested that the period from DATE to CARDINAL DATE be counted towards the period giving rise to social insurance disability benefits of employees of the mining industry .","The hearing on DATE was adjourned , as the medical experts failed to attend , having submitted a justification therefor . They were questioned by the court at the hearing on DATE .","By a judgment of CARDINAL DATE the court awarded the applicant compensation from ORG of CARDINAL ORG for the loss of income resulting from his unemployment from DATE and CARDINAL ORG for loss of health caused by stress which he had suffered , and dismissed the applicant \u2019s remaining claims . Written grounds for the judgment were sent to the parties on DATE . On DATE the court dismissed the applicant 's request of CARDINAL DATE to have the judgment supplemented by rulings on his various requests and claims submitted in the course of the proceedings .","On DATE ORG refused the applicant 's request to institute criminal proceedings against persons who had allegedly breached his rights guaranteed by various provisions of labour law and had committed numerous other offences to the applicant 's detriment .","On DATE the applicant , and on DATE ORG , lodged their appeals against the judgment of DATE with ORG . On DATE the case file and the appeals were transmitted to ORG .","On DATE the applicant was re - engaged in the Niwka - Modrzej\u00f3w coal mine , pursuant to the judgment of CARDINAL DATE . Apparently the applicant , dissatisfied with his new post , later instituted proceedings in ORG , claiming that he should obtain a post identical to that from which he had been dismissed in DATE .","On DATE ORG quashed in part ORG decision of DATE and ordered that the case be re - examined regarding the alleged breach of the applicant 's rights as an employee . On DATE ORG discontinued , however , the investigations , finding that no offence had been committed . The applicant appealed .","On DATE the applicant complained to ORG that there was no progress in the appellate proceedings pending before ORG .","In letters of CARDINAL and DATE and of CARDINAL and DATE the applicant submitted additional arguments in support of his appeal to ORG .","On DATE ORG partly amended the first - instance judgment of CARDINAL DATE in that it reduced certain sums awarded to the applicant as compensation and increased other sums . The court also partly dismissed the applicant \u2019s appeal . Further , a part of the judgment concerning the compensation claim for the loss of earnings , caused by the defendant enterprise \u2019s failure to re - engage the applicant after DATE , was quashed . Likewise , the part relating to his compensation claim for his reduced earning power resulting from the deterioration of his health , was quashed and the case was remitted to the lower court for reconsideration .","The case was subsequently re - examined by ORG . Hearings were held before that court on CARDINAL and DATE , CARDINAL DATE , DATE , DATE and DATE .","By a partial judgment of DATE ORG awarded the applicant compensation . The defendant coal mine lodged an appeal against this judgment . On DATE ORG dismissed the appeal .","A further hearing was held before ORG on DATE . The applicant was questioned and on that occasion he reduced his compensation claims . The hearing was adjourned in order for the defendants to submit their comments .","DATE . On DATE the hearing was adjourned as the defendant \u2019s representatives failed to attend . On the same date the court imposed a fine on the applicant for insulting the court . By a judgment of DATE ORG awarded further compensation to the applicant . On DATE the court rejected the applicant \u2019s appeal against the decision of DATE imposing a fine on him .","On DATE ORG refused the applicant \u2019s request for interpretation of the DATE judgment .","On DATE ORG dismissed the applicant \u2019s appeal against the judgment of DATE .","Subsequently the applicant lodged a cassation appeal with ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76263","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":2006,"docname":"CASE OF SYLLA v. THE NETHERLANDS","importance":2,"conclusion":"Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved","judges":"","text":["The applicant was born in DATE and is currently serving a prison sentence in the GPE .","On DATE the applicant was detained in the GPE on the basis of a request for his extradition by the authorities in GPE , where he was suspected of having committed a bank robbery and , during his subsequent flight and pursuit by the police , of having taken several hostages and having shot and killed CARDINAL person . On DATE he was extradited to GPE where , by judgment of CARDINAL DATE , ORG ( ORG ) convicted the applicant of extortion , attempted homicide , homicide and hostage - taking and sentenced him to life imprisonment .","Pending the determination of a request under the Enforcement of [ Foreign ] Criminal Judgments ( Transfer ) Act ( Wet overdracht tenuitvoerlegging strafvonnissen \u2013 \u201c WOTS \u201d ) for the applicant to be allowed to serve his sentence in the GPE , where he had lived since early childhood , the applicant was transferred to the GPE on DATE .","On DATE , in accordance with the provisions of the ORG , ORG ( arrondissementsrechtbank ) gave leave for the applicant \u2019s sentence to be executed in the GPE and , considering that under the GPE sentencing rules a life sentence fitted the nature and seriousness of the offences , the circumstances in which they had been committed and the person and personal circumstances of the applicant , imposed a life sentence . The applicant filed an appeal on points of law against this ruling with ORG ( PERSON ) .","On DATE ORG allowed the applicant \u2019s appeal on points of law against the ruling and quashed the decision of DATE . It held that ORG had failed to examine whether or not , with regard to the possibilities of early or conditional release for persons sentenced to life imprisonment , the applicant \u2019s situation in the GPE would be less advantageous than in GPE . It remitted the applicant \u2019s case to ORG for a fresh decision . At the time the application was lodged with the ORG , the proceedings before ORG were still pending .","Following his transfer from GPE to the GPE on DATE , the applicant was initially detained in an ordinary remand centre ( PERSON bewaring ) in GPE . On DATE a number of items ( a whet stone attachment for a rotary grinder , knotted sheets , a rope and a metal hook ) were found in his cell . The applicant was subsequently transferred to ORG ) in the ORG in FAC .","On DATE , on the advice of the special selection board of the maximum security institution ( Extra PERSON \u2013 \u201c ORG \u201d ) , the Minister of ORG decided to place the applicant in the ORG , which is part of the PERSON Penitentiary Complex . His detention in the ORG was reviewed and extended by the Minister DATE . The applicant unsuccessfully challenged each decision to extend before ORG ( beroepscommissie ) of ORG ( Centrale PERSON ) . On DATE ORG was replaced by ORG ( PERSON GPE ) .","On DATE , as he had done in respect of the previous decisions to extend , the applicant filed an appeal with ORG against the decision of CARDINAL DATE extending his stay in the ORG by DATE . He argued , inter alia , that the ORG detention regime was in breach of LAW and CARDINAL of the LAW , that he was suffering from sarcoidosis and that the environment in the ORG had a very negative effect on his health .","On DATE ORG rejected his appeal . In so far as relevant , its decision reads as follows :","\u201c On the basis of LAW on the selection , placement and transfer of detainees ( PERSON , plaatsing en overplaatsing van gedetineerden ) of DATE , which entered into force on DATE , detainees may be placed in the maximum security institution if they :","a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of the danger of their committing further serious violent crimes , or","b. in the event of an escape , would pose an unacceptable risk to society , the risk of escape in itself being of lesser importance .","... ORG considers as follows :","During an inspection of the [ applicant \u2019s ] cell in the [ GPE ] remand centre on DATE a whet stone attachment [ for an electrical device ] , a coil of \u2018 rope\u2019 [ made from ] plaited strips of sheet and a long rope with a hook made from a broom handle , with an attached hook made from the aluminium handle of a floor sweeper , were found . In addition a crack was noted in the cell window . The seriousness and quite recent nature of these discoveries justify the finding that the [ applicant ] at present still poses an extreme risk of escape . In that connection [ ORG ] notes that the DATE incidents mentioned by the [ ORG ] selection officer have not been taken into consideration in reaching this finding . Those incidents concern a knife found in DATE in a bus in which the [ applicant ] and CARDINAL other detainees had been transported , some visitors of the applicant who in DATE remained in their car for a remarkably long time observing the detention facility , a fork going missing from the applicant \u2019s cell and odd behaviour in the visitors\u2019 room . Those incidents did not lead to the [ applicant \u2019s ] being placed in the ORG at that time . Instead , the [ applicant ] , after a stay in ORG , was transferred to an ordinary remand centre . It remains unknown whether the knife belonged to CARDINAL of the detainees who had been travelling in the bus .","In view of the very violent crimes the [ applicant ] is suspected of having committed and the subsequent pursuit in GPE and the GPE during which persons were taken hostage , the [ applicant ] \u2013 in the event of an escape \u2013 would pose an unacceptable risk to society in terms of the danger of his committing further serious violent crimes .","ORG , noting the above considerations , concludes that the [ applicant ] falls within the category [ referred to in DATE ( a ) of the Regulation on the selection , placement and transfer of detainees ] .","As regards the [ applicant \u2019s ] reliance on [ the Convention ] , ORG considers that the ORG regime is not in violation of the prohibition set out in LAW Interference with the right to respect for private and family life set forth in LAW is permitted as long as such interference is in accordance with the law and is necessary in a NORP society for , inter alia , the prevention of disorder and crime .","On the basis of the documents obtained it appears that the examination [ to establish whether the applicant suffers from sarcoidosis ] is still ongoing . In these circumstances , the argument [ based on this medical condition ] can not ( for the time being ) succeed .","ORG , noting the above , finds that the decision to extend the applicant \u2019s stay in the ORG is lawful and that , weighing up all the interests involved , it can not be considered as unreasonable or unjust . \u201d","No further appeal lay against this decision .","By decision of DATE the applicant \u2019s stay in the ORG was extended by a further period of DATE . He again lodged an appeal with ORG in which he argued , inter alia , that the ORG regime was in breach of ORG and CARDINAL of the LAW , in particular as regards strip - searches in the ORG and the conditions governing visits . He submitted that the ORG regime was having adverse effects on his mental and physical health .","On DATE ORG dismissed the appeal . The relevant parts of the decision read as follows :","\u201c In its decision of DATE ORG found that the [ applicant ] continued to pose an extreme risk of escape . ... ORG notes that , since then , there have been no signs indicating a possible escape by the [ applicant ] . Noting this , it is of the opinion that at present lesser weight is to be attached to the discovery in DATE and that it can no longer be said that the [ applicant ] poses an extreme danger of escape .","However , in view of the very violent offences the [ applicant ] is suspected of having committed and the subsequent pursuit having taken place in GPE and the GPE , in which people were taken hostage and CARDINAL person was killed , the [ applicant ] , in the event of an escape , would pose an unacceptable risk to society .","ORG , noting the above considerations , therefore concludes that the [ applicant ] falls within the category [ referred to in DATE ( b ) of the Regulation on the selection , placement and transfer of detainees ] .","As regards the applicant \u2019s arguments based on Articles CARDINAL and CARDINAL of LAW , ORG points out that , under the [ DATE ] Prisons Act , it reviews decisions by the selection officer , in the instant case the decision to extend the [ applicant \u2019s ] stay in the ORG . Consequently , it does not review the underlying detention regime as such and , therefore , the examination of the question as to whether or not the regime is in violation of ORG CARDINAL and CARDINAL of the Convention [ falls outside the scope of the present appeal proceedings ] . ORG considers , in any event , that \u2013 having regard to the case - law of ORG it can not be held that the ORG regime as it currently exists should be regarded as being in breach of the Convention .","It does not appear from the documents that the applicant \u2019s medical condition represents a contra - indication for a longer stay in the ORG .","ORG , noting the above , finds that the decision to extend the applicant \u2019s stay in the ORG is lawful and , weighing up all the interests involved , concludes DATE albeit on a different ground \u2013 that it can not be considered as unreasonable or unjust . \u201d","No further appeal lay against this decision .","On DATE the applicant was transferred from the ORG to another prison with a different regime .","On DATE another individual \u2013 who had been detained in the ORG DATE and DATE brought a civil action in tort ( onrechtmatige daad ) against GPE before ORG . CARDINAL of the grounds on which he claimed payment of compensation in respect of non - pecuniary damage for unlawful acts for which he considered GPE to be liable was that , from his arrest in DATE until DATE , he had been subjected to inhuman and degrading treatment on account of the conditions of his detention , including having had to undergo humiliating and unnecessary strip - searches . He based this part of his claim on , inter alia , the ORG \u2019s findings in its judgments of CARDINAL DATE in the cases of PERSON the GPE ( no . CARDINAL\/CARDINAL , ORG CARDINAL ) and PERSON and Others v. the GPE ( no . CARDINAL ) , the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as set out in CARDINAL reports ( see paragraphs CARDINAL below ) , and a report drawn up on DATE by academic researchers on the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraph CARDINAL below ) .","On DATE the applicant and CARDINAL other ( former ) EBI detainees applied to ORG for leave to join the civil action against ORG . Their application related to the part of the claim concerning compensation for non - pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the ORG , including having had to undergo humiliating and unnecessary strip - searches . These civil proceedings are currently still pending and , to date , no decision has been taken on the applicant \u2019s request to join the pending civil action .","An overview of the relevant domestic law and practice is given in the ORG \u2019s judgment of CARDINAL DATE in the case of PERSON the GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-II ) and in GPE v. the GPE ( ( dec . ) , no . CARDINAL\/CARDINAL , DATE ) .","On DATE , in the light of the ORG \u2019s findings in its judgments of CARDINAL DATE in the cases of PERSON ( cited above ) and PERSON and Others ( cited above ) , the ORG house rules ( huisregels ) were amended , with the result that the practice of DATE routine strip - searches accompanying the DATE cell inspections was abandoned . Under the amended Article CARDINAL ) of the ORG house rules , strip - searches could be carried out at random during or directly after a DATE cell inspection .","As from DATE , pursuant to a ruling given on DATE by the judge responsible for provisional measures ( voorzieningenrechter ) of ORG in summary injunction proceedings brought against GPE in DATE by CARDINAL ORG detainees , the random strip - searches were no longer linked to cell inspections and the ORG authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for . The situation of each individual detainee is now discussed at the DATE ORG staff meeting on detainees .","On DATE researchers from ORG presented a report on a study , commissioned in DATE by the Minister of ORG , about the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraphs DATE below ) . It concluded that the ORG regime affected the cognitive functioning of detainees in a negative manner , with particular reference to the speed of processing information and response inhibition . This was probably a result of the lack of stimuli in the detention situation . The report further concluded that the ORG regime caused more depression than a restricted community regime and that strip - searches were perceived as humiliating , constituting an extra burden for persons detained in the ORG . On the other hand , the ORG regime provided a better balance between rest and activity than a restricted community regime , as a result of which ORG detainees maintained a healthier life rhythm . In addition it had not been demonstrated that ORG detainees displayed more physical symptoms of persistent mental stress .","NORP Under GPE law , the civil courts have traditionally had jurisdiction to grant relief against the authorities , if and in so far as no other relief is available . Where a person bases a claim against the authorities on an allegation that the latter has committed a tort within the meaning of Article CARDINAL of the Dutch Civil Code ( Burgerlijk Wetboek ) against him or her , the civil courts have jurisdiction in principle . Where the civil courts have jurisdiction , they can also act in summary injunction proceedings ( kort geding ) in which a plaintiff can , inter alia , request the civil court to issue an order against the authorities . An act by the authorities is unlawful and constitutes a tort when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff \u2019s interests , or to general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) . An action in tort is subject to a limitation period of DATE under LAW .","NORP However , as to the jurisdiction of the civil courts in cases where an administrative appeal lies , it is an established principle under GPE law that DATE given the closed system of legal remedies ( gesloten system van rechtsmiddelen ) in the GPE legal system \u2013 the civil court should refrain from examining the lawfulness of an administrative decision , provided that the administrative appeal offers sufficient guarantees as to a fair procedure . On this topic , extensive case - law has been developed by ORG ( PERSON ) over DATE , supported by several authorities , to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure , the civil courts have full jurisdiction to review the lawfulness of the administrative decision . On the other hand , a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings ( see ORG , DATE , PERSON ( GPE Law Reports \u2013 \u201c GPE \u201d ) DATE , no . CARDINAL ; see also NORP v. the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , \u00a7 \u00a7 CARDINAL and \u00a7 \u00a7 DATE ) .","In a case in which it gave judgment on DATE , ORG examined the question whether a party which considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the ORG arguing that the judge failed to act with due care in giving that ruling . ORG found that this was not possible , holding that it was solely for the legislature to decide in what cases a remedy was to be provided . It would be incompatible with this principle if an unsuccessful party were to have the possibility , via a civil action , of making the correctness of a [ final ] judicial ruling the subject matter of new proceedings , and thus to obtain a renewed examination in another manner than that provided for by statute . It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles ( fundamentele rechtsbeginselen ) that the case could no longer be said to have been determined in a fair and impartial manner , and if there was no possibility of appeal nor had there ever been such a possibility , could the ORG be held liable for the effects of such a ruling in a civil action in tort ( GPE DATE , no . CARDINAL ; see also ORG , DATE , GPE DATE , no . CARDINAL ; ORG of The Hague , DATE and CARDINAL DATE , GPE DATE , ORG . CARDINAL and CARDINAL ; and ORG of The Hague , DATE and CARDINAL DATE , ORG ( ORG ) DATE , nos . CARDINAL and CARDINAL ) .","In a judgment given on DATE concerning civil proceedings taken against ORG by an association of detainees who wished to challenge a special restricted - detention regime in a specific wing of the prison in GPE , ORG held that , as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned ( that is to say , the individual complaint procedure provided for in Article CARDINAL et seq . of the Prison Act DATE ( Beginselenwet Gevangeniswezen ) as in force at that time ) and it was not in dispute that this remedy offered sufficient procedural safeguards , the plaintiff \u2019s case had been correctly declared inadmissible , as the association had acted solely \u201c in the context of promoting the interests of its members \u201d , which were already safeguarded by the individual complaint procedure under LAW seq . of LAW ( GPE DATE , no . CARDINAL ) .","In a judgment given on DATE ( GPE DATE , no . CARDINAL ) in a civil action against GPE brought by a coaccused of a successful applicant in GPE ( PERSON v. the GPE , judgment of DATE , Series A no . CARDINAL ) , ORG held :","\u201c It is embedded in the [ GPE ] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should , but must , be executed . It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity , via a claim [ for damage arising from tort ] against the ORG , to bring a fresh set of proceedings challenging the decision of the criminal court judge or the acceptability of the [ criminal ] proceedings leading to the decision and to have [ the subject matter ] reviewed by the civil courts .","Considering the obligations flowing from ORG , CARDINAL and CARDINAL [ of the Convention ] to secure the rights set out in LAW ] and to provide an effective remedy in the event of a violation of those rights , an exception must be made to the above - mentioned rules should a ruling of ORG [ of Human Rights ] , which the criminal court judge could not take into account in his decision , prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article CARDINAL \u00a7 CARDINAL [ of the Convention ] .","When such an exceptional case occurs , immediate execution of the decision can no longer be permitted under the legal system , and the person convicted can institute interim injunction proceedings [ before the civil court judge ] seeking DATE depending on the circumstances DATE to have execution prohibited , suspended or limited . The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about , mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of ORG [ of Human Rights ] indeed requires that the above - mentioned conclusion be reached . \u201d","In this case , ORG accepted ORG finding against the plaintiff in view of the fact that , when the impugned ruling was given on DATE , the ORG had not yet delivered its judgment in the PERSON case .","A number of persons detained in the ORG have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime , or certain aspects of it , relaxed ( for further details , see PERSON and Others , cited above , \u00a7 \u00a7 DATE ) .","On DATE an amendment to LAW \u201c the ORG \u201d ) entered into force , governing possible means of obtaining revision ( herziening ) of final judgments . This amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by ORG that the criminal proceedings leading to that conviction had been in violation of the LAW . The relevant part of the amended text of LAW ORG reads as follows :","\u201c CARDINAL . An application for revision of a final ruling ( eindbeslissing ) entailing a conviction which has obtained the force of res iudicata can be lodged :","...","on the ground of a ruling of ORG in which it has been established that [ the ORG or one of its Protocols ] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of LAW of [ the LAW ] . \u201d","A request for revision can be lodged with ORG by the Procurator - General , the convicted person or the latter \u2019s lawyer within DATE after the convicted person has become aware of the ORG \u2019s ruling referred to in LAW ( CARDINAL ) , subparagraph CARDINAL ( LAW .","If ORG accepts a request for revision based on LAW , subparagraph CARDINAL , it can either itself determine the criminal charges after reopening of the criminal proceedings , or order the suspension of execution of the original judgment and remit the case for a fresh determination to a ORG different from the one that gave the original judgment ( LAW .","In its judgment of DATE in the case of PERSON and Others v. the GPE ( Reports CARDINAL-III ) , the ORG found a violation of the LAW in that the criminal proceedings against the CARDINAL applicants had not been conducted in compliance with the requirements of LAW CARDINAL and CARDINAL ( d ) of the LAW . In its judgment , it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the ORG claim for non - pecuniary damage , considering that that part of the applicants\u2019 claim for just satisfaction was not ready for decision .","On DATE the applicants in that case lodged a request for their immediate release from detention , failing which they would bring summary injunction proceedings against the ORG . On DATE the Minister of ORG decided to grant them temporary release ( strafonderbreking ) and they were released from prison on DATE .","The ORG determined the applicants\u2019 claims for non - pecuniary damage in its judgment of DATE ( PERSON and Others v. the GPE ( LAW ) , Reports of Judgments and Decisions DATE ) , in which it noted that under domestic law it was not possible for the applicants to obtain a retrialCARDINAL . The applicants had claimed MONEY ( NLG ) for DATE spent in detention , resulting in total claims of MONEY and NLG CARDINAL,CARDINAL . After having examined the respondent Government \u2019s comments on those claims , the ORG awarded CARDINAL applicant NLG CARDINAL ( MONEY ( ORG ) ) and each of the CARDINAL other applicants NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) for non - pecuniary damage , and rejected the remainder of the applicants\u2019 claims for non - pecuniary damage .","On DATE ORG , exercising its supervisory powers under the Convention as regards the execution of the ORG \u2019s judgments of DATE and DATE , adopted a final resolution ( Res DH(CARDINAL)CARDINAL ) in the case . Having noted the measures taken by the GPE on the basis of the ORG \u2019s judgments , ORG concluded that the manner in which the GPE had executed both judgments was in compliance with their obligations under LAW .","On DATE CARDINAL of the CARDINAL applicants brought a civil action in tort against GPE before ORG . They sought a declaratory ruling that GPE was liable for pecuniary and non - pecuniary damage arising out of unlawful administration of justice in violation of their rights under LAW and CARDINAL ( d ) . They sought payment of compensation corresponding to LAW for DATE spent in detention , less the compensation amount awarded by the ORG . They based their claims on the argument that , given the ORG \u2019s findings in its judgment of DATE , it had been established that in the domestic criminal proceedings against them the GPE judge had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful .","In its judgment of DATE , following appeal proceedings brought by GPE , ORG quashed the impugned judgment given on DATE by ORG , and for the time spent in detention ( pre - trial and following conviction ) awarded compensation for non - pecuniary damage to the first plaintiff in the amount of ORG , less ORG CARDINAL,CARDINAL.CARDINAL already awarded by ORG . It awarded the second plaintiff ORG CARDINAL , less ORG CARDINAL,CARDINAL.CARDINAL awarded by ORG , and the third plaintiff ORG CARDINAL , less EUR CARDINAL,CARDINAL.CARDINAL awarded by the ORG . ORG held , inter alia , that :","\u201c The finding of ORG [ of Human Rights ] that full redress ( volledige genoegdoening ) by means of a \u2018 retrial\u2019 in the GPE is not possible , means that ORG may award compensation on grounds of equity ( vergoeding naar billijkheid ) , but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage ( volledige schadevergoeding ) . The ORG \u2019s argument , that [ the CARDINAL plaintiffs ] requested compensation for damage for the first time before ORG and not previously before the domestic judge , and that ORG would have taken into account in its judgement the same claims for damages ( schadeposten ) as those now in issue in the present procedure , fails because no rule exists prohibiting the bringing of a claim before the GPE judge seeking compensation for damage , a part of which DATE namely an award in equity \u2013 has already been awarded in separate proceedings before ORG . \u201d","In its judgment of CARDINAL DATE on the appeal on points of law brought by ORG against the ruling of DATE , ORG held that the ORG had been correct in not challenging this part of the reasoning in the impugned judgment .","On DATE the ORG delivered its judgment in the case of PERSON and Others ( cited above ) , finding a violation of LAW in respect of the applicant PERSON in that , during his stay in the ORG of DATE , the applicant \u2013 who was already subjected to a great number of control measures \u2013 had been subjected to DATE routine strip - searches without convincing security reasons . It found no violation in respect of the other grievances raised by PERSON and the other applicants ( his spouse and his children ) under LAW , DATE and CARDINAL of the Convention . As regards damages , the applicants requested the ORG to award them a symbolic amount of NLG CARDINAL,CARDINAL ( ORG CARDINAL.CARDINAL ) , stating that no amount of money would be capable of compensating for the harm suffered by them . Taking the view that PERSON had sustained some non - material damage on account of the treatment which had been found contrary to LAW , the ORG awarded him for nonpecuniary damage ORG MONEY , that is to say , the full amount claimed under that head .","On DATE PERSON brought summary injunction proceedings against ORG before the judge responsible for provisional measures in ORG of ORG , seeking an order against the ORG to cease with immediate effect the execution of the DATE prison sentence that had been imposed on him , to release him immediately from prison and not to seek payment of the fine of NLG MONEY ( ORG CARDINAL,CARDINAL.CARDINAL ) that had also been imposed .","On DATE the judge responsible for provisional measures ruled on the applicant \u2019s request . This decision , in its relevant part , reads :","\u201c CARDINAL . The plaintiff has an urgent interest in his claim . The civil court judge DATE in this case the judge responsible for provisional measures in summary injunction proceedings \u2013 is empowered to take cognisance [ of the case ] , as the plaintiff claims that the ORG has acted unlawfully toward him , inter alia by continuing his detention .","For the determination of the claim , it is a fact that the ORG has violated the applicant \u2019s rights under LAW ...","Under LAW of [ the LAW ] the applicant is entitled to reparation ( rechtsherstel ) in respect of this irreparable violation of the LAW . If need be , he can assert that right before the courts . The ORG is deemed to be acting unlawfully towards him if no suitable form of redress is provided .","The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and , if so , whether those measures are suitable and appropriate in this case .","[ The judge responsible for provisional measures rejects ] the argument of the ORG that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the ORG to execute rulings of the criminal courts , militate against this form of redress . In this system , no provision has been made to date for ( a suitable response to ) a violation of the kind at issue in the instant case . There have been no prior similar cases , and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case - law . In principle , early release or non - execution of a fine imposed may constitute a suitable form of redress for a violation of LAW kind in issue . This exception to the closed system of legal remedies in criminal cases is , to that extent , consistent with ORG approach in its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) .","The ORG has referred to the financial compensation awarded by the [ ORG ] and to the satisfaction which , in the case of the applicant , lies in the fact that his complaint was declared well - founded [ by ORG ] . However , these CARDINAL elements do not form a suitable , and certainly not a sufficient , form of redress for the plaintiff . Consequently , they do not stand in the way of the claims being allowed . The plaintiff can request the domestic judge to order that additional measures be taken .","In reply to a question , the ORG stated that it was possible , in this respect , to consider measures such as the plaintiff \u2019s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure . ... Again , these options do not form an obstacle to allowing the claims . The first option does not constitute sufficient redress in this case , while the option of a pardon corresponds to ( a request for ) a concession rather than the granting of a right , which is what is at issue here .","In these circumstances , the ORG should release the plaintiff DATE [ when the plaintiff becomes eligible for early release ] and waive the execution of the sentence in its entirety . Having regard to the nature of the violation of the ORG which is an established fact , a form of redress ( genoegdoening ) which relates to the applicant \u2019s liberty is more suitable , and in any event warrants greater priority than waiving payment of the part of the fine still outstanding .","No fixed standard exists for \u2018 offsetting\u2019 the remaining part of the plaintiff \u2019s prison sentence . There are no pertinent reference points on the subject in the existing legislation . This means that the amount of the compensation must be determined on an equitable basis ( naar billijkheid ) . The seriousness of the violation [ of the ORG ] justifies reduction of the sentence by a period equal to PERCENT of DATE for which the applicant was subjected to the regime in the ORG ... This amounts to a reduction of DATE ( round figure ) ...","On the basis of this solution , the plaintiff \u2019s claim should be rejected . Indeed , the plaintiff has no urgent interest in a provisional measure which will only take effect after DATE [ when the applicant has served his mitigated sentence ] ... It is assumed that the ORG ( the Minister of ORG ) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here . If need be , the plaintiff can apply again in due course to the judge responsible for provisional measures .","Each of the parties can in fact be deemed to have been ruled against . \u201d","Both parties agreed to lodge a direct \u201c leapfrog \u201d appeal on points of law ( sprongcassatie ) with ORG , which dismissed both appeals on DATE . Although it agreed with ORG that the judge responsible for provisional measures had incorrectly assumed that LAW gave Mr Lors\u00e9 an ( independent ) right to redress which , if need be , could be asserted before the domestic judge , it held that this could not lead to the setting - aside of the judgment as , pursuant to the LAW , the ORG was obliged to provide redress . However , relying on the ORG \u2019s reasoning in the cases of PERSON and Others v. GPE ( ( LAW ) , judgment of DATE , Series A no . CARDINAL ) and PERSON and ORG v. GPE ( [ ORG ] , ORG . ORG and CARDINAL , ORG CARDINALVIII ) , ORG considered that , although the ORG was in principle free to determine the manner in which redress was to be provided , that freedom did not mean that the domestic judge was unable to take a decision on that point , but simply that a suitable form of redress was to be sought within the domestic legal order . As ORG had acted unlawfully towards PERSON in so far as his rights under LAW had been violated , as found by the ORG , PERSON was entitled to claim compensation from the ORG , which would be acting unlawfully if it failed to provide a suitable form of redress . ORG accepted that such compensation could be granted in a manner other than the payment of a sum of money . In cases such as the present one , where the violation found concerned the manner of execution of a custodial sentence , it could take the form of cessation of the execution of the sentence . ORG found that the order of the judge responsible for provisional measures to cease execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of PERSON . As regards the argument raised by the ORG that the closed system of legal remedies and the corresponding obligation for the ORG to execute rulings of the criminal courts precluded the form of redress claimed by PERSON , ORG \u2013 while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [ as in the case of PERSON and Others ] and a situation in which the violation found was unrelated to such a conviction or proceedings [ as in the case of Mr PERSON .","In its judgment of DATE in the case of PERSON the GPE ( no . CARDINAL\/CARDINAL ) , in which the applicant complained that his telephone conversations with PERSON had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him , the ORG found a violation of LAW on the ground that the conversations in question had not been recorded \u201c in accordance with the law \u201d . As the applicant had declined to submit any claims for compensation in respect of pecuniary or nonpecuniary damage , stating that he intended instead to pursue such claims before the domestic courts , the ORG made no award for just satisfaction under those headings . In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings , the ORG rejected the applicant \u2019s argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case , taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant \u2019s part , and recalling that it had already at the admissibility stage rejected the applicant \u2019s complaints touching on the use made of the evidence obtained as a result of the violation found .","On an unspecified date and on the basis of the ORG \u2019s findings in its judgment of DATE , the applicant PERSON filed a request with ORG for revision of the final domestic judgment of DATE , in which ORG \u2013 without the recorded telephone conversations having been relied on in evidence \u2013 had convicted him of having sexually assaulted PERSON and another woman and had sentenced him to a suspended term of CARDINAL months\u2019 imprisonment and payment of a fine of NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) , to be replaced by CARDINAL days\u2019 detention in the event of non - payment .","On DATE ORG accepted the request for revision and , in accordance with LAW ORG , determined the matter itself . It held :","\u201c CARDINAL . ... the ORG has the obligation to provide redress if ORG has found a violation of a LAW provision . Such redress can be provided entirely or in part within the framework of the revision procedure , amended for this purpose .","Having regard to the violation of LAW found by ORG , ORG is of the opinion that revision is necessary for the purposes of redress . To that extent , the request is well - founded . ... The request is aimed primarily at having ORG declare the prosecution inadmissible , while quashing the judgment in respect of which revision is sought .","ORG can not accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible , and the instant case can not be considered as such . In this respect the petitioner relies mistakenly on [ ORG judgment of DATE ; NL DATE , no . CARDINAL ] . In that case ORG held that , in certain circumstances , a serious breach of the principles of proper proceedings may lead to the prosecution being declared inadmissible if , as a result of that breach , deliberately or owing to gross negligence of the defendant \u2019s interests , the defendant \u2019s right to a fair hearing has been violated . As ORG , in its decision on admissibility [ M.M .. v. the GPE ( dec . ) , no . CARDINAL\/CARDINAL ] of CARDINAL DATE , preceding its judgment of DATE , declared inadmissible the [ applicant \u2019s ] complaint under LAW as being manifestly illfounded , it can not be said that there has been a serious breach of the principles of proper proceedings as a result of which , deliberately or owing to gross negligence of the [ applicant \u2019s ] interests , his right to a fair hearing has been violated .","Taking into account that , in the proceedings leading to the judgment of which revision is sought , there was no breach of LAW and that the contents of the recorded telephone conversations were not used in evidence , there is no ground for referring the case to ORG under LAW , as requested by the petitioner in the alternative .","In the light of the importance of the provision violation and the nature and seriousness of the irreparable defects in the preliminary criminal investigation , as found by ORG , ORG will , after accepting the [ revision ] request , determine the matter itself , in accordance with LAW ORG , and reduce the fine imposed by ORG in the following manner . \u201d","ORG quashed the original judgment of ORG in part , that is , in respect only of the amount of the fine imposed and the duration of the alternative detention period , reducing the fine by PERCENT to ORG CARDINAL,CARDINAL and the duration of the alternative detention to DATE .","The findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as regards the ORG , as set out in its Report on the visit to the GPE from DATE , together with ORG response to those findings , are set out in the ORG \u2019s judgment of CARDINAL DATE in the case of PERSON ( cited above , \u00a7 \u00a7 DATE ) .","The ORG visited the GPE again from CARDINAL to DATE and , in the course of this visit , carried out a follow - up visit to the ORG . Its findings were the following ( ORG to ORG on the visits carried out to GPE and to GPE by ORG for ORG Treatment or Punishment ( ORG ) in DATE , ORG ( DATE ) CARDINAL , excerpts ) :","\u201c CARDINAL . At the time of the DATE visit , ORG ( ORG ) at the FAC was being renovated , and the inmates allocated to it were being held in FAC ( ( GPE ) building nearby ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) .","In addition to paying a brief visit to the facilities undergoing renovation , the ORG \u2019s delegation examined the regime currently being applied , and devoted attention to the procedures governing placement and extension of placement in ORG . In the course of the visit , interviews were held with all CARDINAL inmates , the establishment \u2019s management and staff , as well as representatives of ORG .","...","c. regime","Following its first visit to the ORG , the ORG expressed considerable concern about the regime applied within the institution . It recommended that the regime be revised , in particular as regards certain of its features : the group system ( if not discarded , to at least be relaxed and inmates to be allowed more out - of - cell time and a broader range of activities ) ; searching policies ( to be reviewed in order to ensure that they are strictly necessary from a security standpoint ) ; and visiting arrangements ( to be reviewed , the objective being to have visits take place under more open conditions ) ( cf . paragraphs CARDINAL to CARDINAL of ORG ( CARDINAL ) CARDINAL ) .","However , in their response ( dated DATE ) to the ORG \u2019s visit report , the NORP authorities defended point by point the different aspects of the regime being applied in the ORG ( cf . paragraph CARDINAL of ORG ( CARDINAL ) CARDINAL ) .","In the course of the DATE visit , the Director of the FAC and the Acting Director of the ORG informed the ORG \u2019s delegation that a limited number of modifications to the regime and its implementation had taken place . For instance , steps were being taken to increase staff \/ inmate communication through a training programme known as \u201c Safety at the door \u201d , as well as by the previously - mentioned adaptations of the exercise yards . Further , a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells . Another positive development was that the special \u201c handcuffs regime \u201d ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) had not been applied in respect of any inmate since DATE .","However , despite these welcome developments , the regime in the unit was essentially the same as in DATE , and the prison \u2019s management acknowledged that there had been \u201c no change in most of the rules \u201d . Although the official allowance for activities was generous ( TIME ) , in practice , most inmates\u2019 out - of - cell time did not appear to have increased ( averaging TIME per day ) . The stringing of plastic curtain hooks on short rods , which was performed individually in the cells , continued to be the only work offered . It remained the case that body searches - including anal inspections - were performed on each prisoner at least once DATE , a process which was invariably perceived as humiliating . Conditions under which visits and sessions with non - custodial staff took place also continued to be very restrictive . Inmates\u2019 remarks to the delegation ( e.g. \u201c losing positivity \u201d , lacking \u201c future feelings \u201d , \u201c beginning to hate people from the heart \u201d , and\/or having to cope by being \u201c mentally separate \u201d ) frequently echoed those made in DATE .","To sum up , inmates held in the ORG remained subject to a very impoverished regime .","In an environment which is potentially hazardous to the mental health of prisoners , it is of critical importance to provide a varied programme of appropriate stimulating activities ( including education , sport , work of vocational value , etc . ) . The ORG calls upon the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff .","Following a recommendation made by the ORG in its previous periodic visit report ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) , the NORP authorities commissioned ORG to carry out an independent study of the psychological state of current and former inmates of the ORG . A preliminary study completed on DATE concluded that \u201c an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible . \u201d The NORP authorities have indicated that such an empirical examination has in fact commenced and would be completed by DATE . The ORG trusts that it will receive the results of the study in due course .","CARDINAL point raised by the preliminary study may be noted , i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a \u201c contradiction in the policy \u201d of the ORG . ORG would like to receive the views of the NORP authorities on this statement .","Each prisoner was also subjected to such a search before and after being interviewed by members of the ORG \u2019s delegation . \u201d","ORG responded to these findings in the following terms ( ORG ( DATE ) DATE , excerpts ) :","\u201c The \u201c Extra Security Institution \u201d at the FAC","recommendations ...","- the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff ( paragraph CARDINAL )","Response : Prisoners in the ORG spend a total of TIME a week on out - of - cell activities , and these activities are no less varied than in other prisons . They include exercise , visits , sport , work , education and recreation . Not all prisoners take part in all activities . What they do depends partly on interest and ability . The work in the ORG is simple . However , it is difficult to provide work that is more varied and yet meets security requirements . In principle , work in the ORG is done jointly . The Government refutes the claim that , on average , prisoners participate in activities for no more than between TIME a day . In fact they spend an average of TIME a day in out - of - cell activities .","The Government agrees that prisoners and staff should have more contact . Fenced - off walkways for staff have now been erected in the exercise yards . They provide more opportunities for informal contact and interaction between prisoners and staff .","The number of searches has been sharply reduced since the opening of the ORG . Besides a DATE search during cell checks , searches are carried out after visits to areas containing potentially dangerous objects , such as the hairdresser \u2019s or the doctor \u2019s or dentist \u2019s surgery , and after contact with the outside world , such as visits . Searches are still necessary from the point of view of security . The Government would point out that searches are also conducted in ordinary prisons .","On DATE , in CARDINAL separate cases against the GPE , ORG ruled that : \u201c the combination of routine strip - searching with the other stringent security measures in the ORG amounted to inhuman or degrading treatment in violation of LAW . There has thus been a breach of this provision . \u201d ( PERSON the GPE , ORG no . CARDINAL\/CARDINAL , DATE , \u00a7 CARDINAL ; see also PERSON the GPE , ORG no . MONEY , DATE , \u00a7 CARDINAL ) . These judgments and other considerations have prompted the Government to stop routine DATE searches in the ORG over a long period of time . The ORG \u2019s regulations will be amended .","...","requests for information","- the results of the \u201c empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners \u201d , being conducted by ORG ( paragraph CARDINAL )","Response : The study is expected to be completed by DATE as indicated . As soon as the findings are available , the ORG will forward them to the ORG .","- the views of the NORP authorities on the statement , made in the preliminary study carried out by ORG , to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a \u201c contradiction in the policy \u201d of the ORG ( paragraph CARDINAL )","Response : The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime . However , opportunities to exercise influence are necessarily more restricted in the ORG than in other prisons because of the nature of the system . The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society . Placement in the ORG is mainly determined by considerations of safety and security . In this sense the ORG differs from other prisons . The emphasis on safety and security means that placement in the ORG does not depend on a prisoner \u2019s behaviour but on the risk he represents . \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96208","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"PACIEJ v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant applied to the NORP - German Reconciliation Foundation ( \u201c the ORG \u201d ) for payment of a benefit on account of his deportation and forced labour during the Second World War . He submitted that from DATE to DATE he had been a forced labourer on a farm in GPE . In DATE he had been relocated to PERSON ( near GPE ) where he had been required to work as a forced labourer for the company ORG . He alleged that in PERSON he had been imprisoned in a penal camp ( ob\u00f3z karny ) .","The applicant \u2019s request was made under the scheme for slave and forced labourers ( \u201c the second compensation scheme \u201d ) established under LAW of DATE , the NORP Law of DATE on the Creation of the \u201c Remembrance , Responsibility and Future \u201d Foundation ( \u201c LAW ; ORG \u201d ) and the subsequent Agreement of DATE between the PERSON , ORG ( \u201c the NORP ORG \u201d ) and the Polish - German Reconciliation Foundation .","On DATE the Foundation \u2019s Verification Commission found that the applicant was eligible for payment of a benefit , his persecution falling under the CARDINALth category which included persons who had been deported to GPE and subjected to forced labour in agriculture .","On DATE the applicant appealed against the decision of CARDINAL DATE . He claimed that he had performed forced labour both in agriculture and later during his internment in the penal camp , and that ORG had failed to grant him compensation on account of the latter persecution . He submitted that by doing so the ORG breached the relevant rules which required it to grant benefit to a claimant on account of a more favourable category of eligibility . The applicant produced CARDINAL items of documentary evidence in support of his claims :","a\/ a statement by a daughter of a NORP farmer where he used to work that in DATE he had been transported to a camp ;","b\/ a certificate of work for the company ORG which attested , according to the applicant , that he had been interned in a camp ;","c\/ a certificate issued by ORG in DATE that the applicant had returned from a camp in GPE .","On DATE ORG changed the decision of DATE . It held that the applicant \u2019s persecution came under the CARDINALrd category of eligibility , i.e. persons who had been deported to GPE and subjected to forced labour in industry . Consequently , the applicant was awarded DEM CARDINAL,CARDINAL . ORG informed the applicant that his request for consideration of his internment in the penal camp as falling under DATE category of eligibility could not be granted . It stated that the only persons who came under the CARDINALnd category of eligibility were the detainees of those camps which were included on the list approved by ORG . However , the applicant \u2019s camp was not included on that list .","On DATE the applicant appealed against the latter decision . He contested the fact that ORG had not taken into account his forced labour during his internment in the penal camp .","On DATE ORG informed the applicant that his appeal could not be allowed . As regards the applicant \u2019s submissions to the effect that his internment in a labour camp ( ob\u00f3z pracy ) should have been classified as persecution falling under DATE category of persecution , it referred to its findings in the decision of DATE . The applicant was further informed that his certificate of work ( PERSON ) attested that he had worked for the company Gr\u00fcn&Bilfinger ORG , but did not confirm that he had been detained in a penal camp .","The Government submitted that the applicant had been subjected to forced labour for the Gr\u00fcn&Bilfinger ORG company in PERSON and had stayed in a camp for forced labourers . However , that camp had not been a penal camp and did not appear on the list of \u201c other places of confinement \u201d adopted by ORG .","DATE international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by NORP GPE . The government of GPE was CARDINAL of the parties to these negotiations . They were prompted by a number of lawsuits against certain NORP companies before the courts in GPE in which compensation was sought on account of forced labour during the Second World War . The NORP companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace . The negotiations concluded on DATE with the adoption of a Joint Statement which was signed by all the parties to the negotiations , including the government of GPE .","The parties to the Joint Statement acknowledged the intention of the Government of GPE and of the NORP companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the ORG era and the Second World War . They affirmed their consensus of CARDINAL DATE on the establishment of the Remembrance , ORG , which was to be a means of providing funds for victims from central and eastern LOC , most of whom had benefited little from prior NORP compensation and restitution programmes . The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in GPE .","According to ORG , the Government of GPE and the NORP companies concerned undertook to contribute MONEY to the Remembrance , ORG . ORG stipulated that the governments of the participating central and eastern GPE , including GPE , and the government of GPE agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace .","Subsequently , on DATE the NORP parliament enacted the PERSON on the creation of the PERSON , ORG ( Gesetz PERSON \u201c GPE , PERSON \u201d ) . It came into force on DATE . However , the disbursement of payments only started on CARDINAL DATE , once the relevant guarantees had been secured by the NORP companies concerned with regard to the dismissal of the lawsuits filed against them in GPE courts . The disbursement of payments terminated at DATE .","The relevant parts of the PERSON on the creation of the PERSON , ORG provide :","Recognising","that ORG inflicted severe injustice on slave labourers and forced labourers , through deportation , internment and exploitation , which in some cases extended to destruction through labour , and through a large number of other human - rights violations ,","that NORP companies which participated in the ORG injustice bear a historic responsibility and must accept it ,","that the companies which have come together in the Foundation Initiative of NORP Industry [ Stiftungsinitiative der deutschen Wirtschaft ] have acknowledged this responsibility ,","that the injustice committed and the human suffering it caused can not be truly compensated by financial payments ,","that the PERSON comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime ,","the NORP PERSON acknowledges political and moral responsibility for the victims of National Socialism . The GPE also intends to keep alive the memory of the injustice inflicted on the victims for coming generations . ( ... )","( CARDINAL ) A legally recognised ORG with the name \u2018 Remembrance , Responsibility and Future\u2019 shall be established under public law . ( ... )","( CARDINAL ) The purpose of the ORG is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from ORG period . ( ... )","( CARDINAL ) The approval and disbursement of CARDINAL - off payments to those persons eligible under LAW will be carried out through partner organisations . The ORG is neither authorised nor obligated in this regard . The board of trustees may opt for another mode of payment . ( ... )","( CARDINAL ) Eligible under this PERSON are :","NORP persons who were held in a concentration camp as defined in section ORG ) of LAW [ Bundesentsch\u00e4digungsgesetz ] or in another place of confinement outside the territory of what is now GPE or a ghetto under comparable conditions and were subjected to forced labour ;","NORP persons who were deported from their homelands into the territory of ORG within the borders of DATE or to a NORP - occupied area , subjected to forced labour in a commercial enterprise or for public authorities there , and held under conditions other than those mentioned in paragraph CARDINAL , or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions ; ( ... )","( CARDINAL ) Eligibility shall be demonstrated by the applicant by submission of documentation . The partner organisation shall take into account relevant evidence . If no relevant evidence is available , the claimant \u2019s eligibility may be substantiated in some other way .","( CARDINAL ) Specific characteristics of other places of confinement referred to in LAW , Paragraph CARDINAL , Number CARDINAL are inhumane conditions of detention , insufficient nutrition and lack of medical care . ( ... ) \u201d","Section CARDINAL \u00a7 CARDINAL of LAW ( Bundesentsch\u00e4digungsgesetz ) provided that ORG would issue a decree containing a list of concentration camps within the meaning of the LAW . ORG issued the decree in DATE with an annex listing concentration camps . It was twice amended , most recently in DATE .","ORG adopted the list of \u201c other places of confinement \u201d which contained , inter alia , penal camps . Persons detained in CARDINAL of the camps included on the list were considered to come DATE category of eligibility . The list was binding on all partner organisations , including ORG .","On DATE the NORP government submitted to ORG a bill on the exemption from tax and duties of payments received in connection with NORP persecution . In the explanatory memorandum to the bill , the government stated that payment of benefits in respect of forced labour for the NORP regime had been agreed in the course of negotiations involving the respective governments , NORP companies and the victims . They further stated that , as a result of the agreement with the NORP , GPE would receive CARDINAL . On DATE the NORP parliament enacted the PERSON on exemption of payments received in connection with NORP persecution from tax and duties . That PERSON also exempted the Polish - German Reconciliation Foundation from taxes due on funds received by the ORG for the distribution of payments . The PERSON came into force on DATE .","On DATE an agreement was concluded between the Remembrance , ORG and ORG ( \u201c the partnership agreement \u201d ) . Under its terms ORG was to act as a partner organisation of ORG , with a view to securing prompt disbursement of compensation payments to slave and forced labourers ( paragraph CARDINAL of the agreement ) . Both parties agreed to implement fully the provisions of the ORG and declared that their agreement was in compliance with LAW of DATE .","The above agreement further stipulated that ORG , as a partner organisation , was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of GPE on DATE ( paragraph CARDINAL ) . The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way ( paragraph CARDINAL ) . A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation ( paragraph CARDINAL ) . Under paragraph CARDINAL of the agreement , decisions taken by the appeal body were final and could not be challenged before a court ( paragraph CARDINAL ) .","The Agreement of DATE was accompanied by CARDINAL annexes . Annex no . CARDINAL contained a declaration by the NORP government with regard to responsibility for the disbursement of compensation payments . The relevant parts provide :","\u201c Since DATE the government of GPE has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by NORP GPE . In the negotiations , the government has played a significant role on behalf of the representatives of the victims . Due to the government \u2019s efforts , former slave and forced labourers will receive in total ORG CARDINAL , which constitutes a very positive outcome to the negotiations .","The government of GPE will endeavour to ensure that the payments from the PERSON , ORG , handled by ORG with the participation of NORP financial institutions , will be processed properly . To that end the NORP authorities will take steps with regard to the Polish - German Reconciliation Foundation within their founding and supervisory competences . \u201d","The statutes of the Polish - German Reconciliation Foundation were amended on the initiative of its founder , namely the Minister of ORG , with a view to implementing the provisions of the ORG and the Agreement of DATE ; those amendments were subsequently registered by ORG on DATE .","The amended statutes stipulated that the ORG was to disburse compensation payments to the victims specified in LAW of the ORG from the funds contributed by ORG on the basis of the same LAW ( paragraphs CARDINAL and CARDINAL ) . It further specified that the ORG \u2019s decisions in individual cases were to be taken on the basis of internal regulations . A decision in an individual case could be appealed against ; however , a decision taken after an appeal had been considered was final and no appeal lay against it ( paragraphs CARDINAL and CARDINAL ) .","Pursuant to paragraph CARDINAL of the amended statutes , ORG was to determine individual claims for assistance filed by victims of NORP persecution . Decisions taken by ORG could be appealed against to ORG .","In DATE the ORG referred to ORG a question of law ( pytanie prawne ) , as to whether decisions given by the organs of the ORG could be appealed to ORG and , if not , whether they could be subjected to judicial review in civil proceedings . On DATE ORG adopted resolution no . III ZP CARDINAL\/CARDINAL , holding that , since administrative functions could only be delegated by statute , which was not the case with regard to the Polish - German Reconciliation Foundation , its decisions did not meet the requirements of an administrative decision and thus could not be appealed to ORG . However , ORG refused to give a definite answer as to whether the ORG \u2019s decisions could be subject to judicial review in civil proceedings . It nevertheless observed that entitlement to receive a benefit from the ORG did not fall within the scope of civil law , and thus could not be raised before a civil court . In exceptional cases , such as where the claimant \u2019s eligibility had been established but the benefit was not paid , a claim could arise under civil law .","In Resolution no . OPS CARDINAL\/CARDINAL of DATE , ORG upheld the earlier case - law to the effect that it did not have jurisdiction to review the decisions of the ORG and observed that :","\u201c The Polish - German Reconciliation Foundation , which awards benefits to the victims of NORP persecutions using the financial resources allocated to it by foreign entities , does not perform functions in the area of public administration . Thus , the source of the entitlement to receive an award from the ORG does not stem from actions of the public administration . \u201d","It further observed :","\u201c There is no doubt that the Agreement of DATE , concluded between the NORP and ORG , which was not ratified , as well as subsequent acts [ starting with ORG and LAW ] concerning grants of financial assistance by the ORG on account of NORP persecution do not fulfil the criteria which would make it possible to classify them as sources of binding NORP law . No administrative - law relation arises between a claimant and the ORG on the basis of the aforementioned acts , and consequently the ORG is not an organ of public administration established by law to determine cases in the sphere of public administration . \u201d","On DATE ORG adopted Resolution no . III CZP CARDINAL\/CARDINAL in response to a question of law put forward by the ORG . It revisited its earlier case - law on the interpretation of the notion of a \u201c civil case \u201d laid out in LAW in relation to claims against the ORG . ORG held that :","\u201c The [ civil ] courts have jurisdiction in the case where a claimant \u2013 due to an unfavourable decision by the \u201c NORP - German Reconciliation \u201d Foundation \u2013 is seeking a payment [ from the ORG ] in respect of NORP persecution . \u201d","In the reasons for its ORG found , inter alia , that :","\u201c The procedure concerning examination of claims under the first and the second NORP fund ... may not be currently instituted . The relevant funds were allocated and the disbursement of payments has been finally concluded . ( ... )","There is no doubt that the current state of affairs resulting from the relevant case - law , under which those persons interested in challenging before a court the ORG \u2019s refusal to grant them a suitable payment are deprived of such a possibility , can not be accepted in the light of the binding constitutional and LAW . LAW in conjunction with LAW establishes a presumption in favour of jurisdiction of the ordinary courts which indicates \u2013 at least indirectly \u2013 that a possible jurisdiction of the administrative courts should be based on a specific statutory rule . ( ... )","The need for extensive interpretation of the individual \u2019s access to a court , or in other words , the right to bring an action ( the right to a court ) follows also from LAW , which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations . It may be assumed from the established case - law of ORG CARDINAL \u00a7 CARDINAL of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations .... Obviously , the right to a court does not denote the right to \u201c win \u201d a case , but it signifies that the filed claim should be examined by a court and determined on the merits ( judgment of ORG of DATE , no . PERSON CARDINAL\/CARDINAL , unpublished ) .","The results of interpretation of ORG CARDINAL and CARDINAL of the Code of Civil Procedure thus require us to acknowledge that the [ civil ] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court . The [ civil ] court also has jurisdiction where a case has the features of a civil case only in the formal sense . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-122239","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2013,"docname":"VALCHEVA AND ABRASHEV v. BULGARIA","importance":3,"conclusion":"Inadmissible","judges":"George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["NORP The applicant in the first application ( no . CARDINAL ) , PERSON PERSON , is a NORP national who was born in DATE and lives in GPE . She is not legally represented .","NORP The applicant in the second application ( no . CARDINAL ) , Mr ORG ORG , is a NORP national who was born in DATE and lives in PERSON . He is represented before the Court by Mr PERSON and PERSON , lawyers practising in GPE .","The respondent Government ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the GPE ORG , having been tipped off by PERSON , a member of FAC , that her former de facto spouse had committed documentary fraud , asked the GPE police to inquire into the matter . On DATE the police proposed that criminal proceedings be brought against PERSON de facto spouse .","On DATE the GPE ORG opened criminal proceedings against him . In DATE it gathered evidence , heard CARDINAL witnesses , including PERSON , and obtained a graphological expert report .","As the evidence led the investigator in charge of the case to believe that PERSON had forged an employment certificate to enable her de facto spouse to obtain a retirement pension , on DATE he brought charges of documentary fraud against her .","On DATE PERSON was allowed to inspect the case file , and on DATE the investigator proposed that she be brought to trial .","On DATE the GPE ORG indicted Ms ORG and her de facto spouse , alleging that he had committed documentary fraud by using the employment certificate to obtain a retirement pension , and that she had consciously enabled him to commit that fraud by forging that certificate .","ORG held a hearing on DATE . Noting that the alleged victim of the offence \u2013 the social security authorities \u2013 had not appeared , it decided to adjourn the case .","The next hearing took place on DATE . The social security authorities brought a civil claim against PERSON and her de facto spouse , seeking repayment , plus interest , of the amounts that the latter had obtained by way of a retirement pension . The president of the panel hearing the case recused himself , citing the fact that PERSON was a member of FAC . On DATE , DATE and DATE all other judges of ORG also declined to sit in the case , citing the same reason . Accordingly , on DATE the court \u2019s president sent the case to ORG for a decision to which other district court the case was to be transferred , and on DATE ORG chose ORG .","NORP The trial before ORG was due to start on DATE . However , on that date the court found that it could not proceed with the case because the prosecution had not appeared , and decided to adjourn it . On DATE the case was again adjourned because Ms ORG \u2019s de facto spouse was ill and could not attend .","The trial started on DATE . ORG heard CARDINAL witnesses and an expert and admitted an expert report .","On an unspecified date in DATE the social security authorities withdrew their civil claim against PERSON de facto spouse because he had repaid the amounts that he had obtained by way of a retirement pension . At the next hearing , held on DATE , he entered into a plea agreement with the prosecution . After approving the agreement , the panel hearing the case recused themselves by reference to a rule of criminal procedure barring judges and lay judges from sitting in a case in which they had approved a plea agreement .","The case was then assigned to another panel , which held hearings on DATE , DATE , DATE , DATE and DATE .","A hearing listed for DATE had to be postponed because it coincided with the DATE plenary meeting of ORG , and took place on DATE . ORG asked the court to discontinue the trial and refer the case back to LOC with a view to clarifying the charges against Ms Valcheva . The court , observing that the indictment did not clearly spell out the time , the place or the manner of commission of the offence alleged against her , acceded to the request .","On DATE the GPE ORG lodged an amended indictment against PERSON with ORG . On DATE the judge to whom the case had been assigned again withdrew , citing his earlier decision to withdraw from the case in DATE . Noting that ORG had already determined which court should deal with the case , on DATE the president of ORG sent it to ORG .","On DATE ORG set the case down for trial . It was due to take place on DATE but was adjourned due to Ms ORG \u2019s failure to appear without showing cause . The court fined her for that failure . She appealed the fine .","The trial was held on DATE and CARDINAL DATE . On the lastmentioned date ORG acquitted PERSON , finding that the charges against her had not been made out to the required criminal standard of proof .","NORP The prosecution appealed . ORG heard the appeal on CARDINAL and DATE . In a final judgment of DATE , it fully upheld PERSON acquittal .","On DATE the ORG opened criminal proceedings against Mr Abrashev on suspicion that he had committed aggravated documentary fraud .","On CARDINAL DATE Mr PERSON was charged with attempting , with the help of an accomplice , to obtain a large sum of money by using a false promissory note . PERSON alleged accomplice was likewise charged DATE .","Having interviewed the CARDINAL accused and a number of witnesses , and having obtained other evidence , including a graphological expert report , on DATE the investigator in charge of the case proposed that Mr PERSON and his alleged accomplice be brought to trial .","On DATE the ORG referred the case back to the investigator , citing a number of omissions in the investigation . The investigator objected to the referral , but on DATE the ORG dismissed his objections .","On DATE the investigator ordered a financial expert report . The report was ready on DATE . On DATE the investigator again proposed that Mr PERSON be brought to trial . By contrast , this time he proposed that the charges against PERSON alleged accomplice be dropped for lack of sufficient evidence .","On DATE ORG decided that the charges against ORG alleged accomplice should be dropped and that PERSON should not be prosecuted for documentary fraud but simple fraud . It went on to note that the prosecution of simple frauds fell within the competence of ORG , and referred the case to that office .","On CARDINAL DATE the investigator laid the amended charges against PERSON , accusing him of aggravated simple fraud , and on DATE proposed that he be brought to trial .","On DATE the ORG decided to discontinue the proceedings , considering that the charges against Mr PERSON had not been made out and that the facts alleged against him did not constitute an offence . On an application by the victim of the alleged offence , on DATE ORG set the discontinuance aside .","On DATE ORG again discontinued the proceedings . The victim of the alleged offence again sought judicial review . On DATE the ORG found that it could not examine the application , because the lawyer who had lodged it had not enclosed with it a power of attorney . The victim then asked ORG to vary its decision to discontinue the proceedings \u2013 as possible when it had not been reviewed by a court on the merits DATE , and on DATE that office acceded to her request . PERSON appealed to ORG , but on DATE that office upheld the lower office \u2019s decision . PERSON appealed further , but on DATE ORG also upheld the lower offices\u2019 decisions .","On DATE the ORG indicted PERSON , but on DATE the ORG referred the case back to it , citing defects in the indictment .","On DATE the ORG again indicted PERSON .","This time the case proceeded to trial , which took place on DATE , CARDINAL DATE and CARDINAL DATE , and on DATE , DATE and DATE . ORG heard a number of witnesses and obtained an expert report . CARDINAL trial sitting was adjourned because Mr PERSON was ill and could not attend , and another was adjourned due to the absence of witnesses . On DATE the ORG acquitted PERSON .","On DATE the victim of the alleged offence , who had taken part in the trial as a private prosecutor , appealed . The public prosecutor likewise appealed on DATE . Having heard the appeals on DATE , on DATE ORG decided to quash the lower court \u2019s judgment and to remit the case .","On DATE ORG in turn decided to refer the case back to the prosecuting authorities , citing , inter alia , defects in the indictment .","On DATE the ORG presented the amended charges to PERSON . On CARDINAL DATE it indicted him .","On DATE ORG , considering that the facts of which PERSON stood accused did not constitute an offence , decided to discontinue the proceedings against him . The public prosecutor and the private prosecutor both appealed . On DATE the Stara Zagora Regional Court quashed the discontinuance , holding that it had been improper for the lower court to proceed in that manner , and remitted the case to a different formation .","On DATE the ORG once more referred the case back to the prosecution , citing defects in the indictment .","On DATE the ORG again indicted PERSON .","The case proceeded to trial , which took place on DATE , CARDINAL DATE and DATE , and on DATE , DATE and CARDINAL DATE . CARDINAL trial sitting was adjourned because PERSON counsel was busy elsewhere and could not attend . On DATE the ORG acquitted PERSON .","NORP The public prosecutor and the private prosecutor both appealed . The first hearing before ORG , initially fixed for DATE , had to be postponed because counsel for PERSON was busy elsewhere . It took place on DATE . The second hearing was held on DATE . On DATE ORG quashed the lower court \u2019s judgment and referred the case back to the prosecuting authorities , citing their failure to specify the charges against PERSON .","In DATE ORG again indicted PERSON .","On DATE the Stara Zagora District Court , considering that the facts of which PERSON stood accused did not constitute an offence , decided to discontinue the proceedings against him . The public prosecutor and the private prosecutor both appealed . Having heard the appeals on DATE , in a final decision of DATE ORG upheld the lower court \u2019s decision .","On DATE the victim of the alleged offence asked the Chief Prosecutor to seek reopening of the proceedings . On DATE the Chief Prosecutor requested ORG to reopen the proceedings , citing flagrant breaches of the rules of procedure and the substantive law in the making of ORG ruling of CARDINAL DATE and ORG ruling of DATE . ORG heard the request on DATE . On DATE it decided to reopen the case and refer it back to the Stara Zagora District Court for trial .","ORG held CARDINAL hearings : on DATE and DATE , and on DATE , DATE and CARDINAL DATE . At the last of those hearings it found Mr PERSON not guilty .","NORP The public prosecutor and the private prosecutor both appealed . A number of judges at ORG withdrew from sitting in the case because they had previously sat in it . The court heard the appeal on DATE and , in a judgment of the same date , quashed Mr PERSON \u2019s acquittal , convicted him and sentenced him to QUANTITY months\u2019 imprisonment , suspended .","Both PERSON and the private prosecutor appealed on points of law . The hearing before ORG was initially listed for DATE , but was adjourned at the request of counsel for ORG , and took place on DATE . In a final judgment of DATE , ORG quashed the lower court \u2019s judgment and acquitted PERSON .","A DATE amendment to the DATE LAW added a new LAW , which envisaged the creation of an ORG attached to ORG . The ORG , which consists of a Chief Inspector and CARDINAL inspectors , is tasked with checking the work of the judiciary without infringing the independence of judges , prosecutors or investigators ( LAW ) . It can act either of its own motion or pursuant to reports by private individuals , legal persons or ORG authorities ( LAW ) . It has the power to refer matters to the appropriate authorities , or make suggestions or reports to them ( LAW ) . Both the Chief Inspector and the inspectors are elected by ORG by a majority of CARDINAL ; the term of office of ORG is DATE and that of the inspectors is DATE ( Article GPE \u00a7 CARDINAL and CARDINAL ) .","The manner of election and dismissal of the inspectors is laid down in sections CARDINAL of LAW DATE ( \u201c the DATE LAW ) . They must be lawyers having high professional and moral qualities ( section CARDINAL(CARDINAL ) ) . ORG must have DATE of professional experience , and the inspectors DATE of professional experience ( section ORG ) and ( CARDINAL ) ) . They can not engage in a number of activities \u2013 such as business or being member of a political party DATE that might prejudice their independence ( section CARDINAL read in conjunction with section CARDINAL ) ) . They may be dismissed before the expiry of their term of office only if they resign , are finally convicted of a criminal offence , are unable to carry out their duties for DATE , are deprived of the right to exercise as a lawyer , heavily or systematically breach their duties or commit acts which tarnish the prestige of the judiciary , or do not cease activities that they are prohibited from pursuing while in office ( section CARDINAL(CARDINAL ) ) . The proposal for dismissal must be made by at least onefifth of the members of ORG ( section CARDINAL(CARDINAL ) ) . The remuneration of ORG is equal to that of a section president of ORG , and the remuneration of the inspectors is equal to that of a judge of that court ( section CARDINAL ) .","DATE . On DATE the Government laid before ORG a bill for the amendment of the DATE Act . The explanatory notes to the bill said the following :","\u201c Slow judicial proceedings lead to an enormous amount of judgments of ORG . In its judgments concerning the right to a fair trial within a reasonable time ORG ( \u2018 the ECtHR\u2019 ) emphasises the need for the introduction of an effective domestic remedy in respect of such breaches . With a view to securing the effective exercise of the right to a fair trial within a reasonable time , in its case - law the ECtHR points to the need to introduce a remedy capable of providing compensation for damage resulting from delays in proceedings ( compensatory remedy ) .","The systemic problem found by the ECtHR in relation to the excessive duration of criminal and civil cases in GPE calls for urgent legislative measures to introduce the remedies suggested by ORG .","With a view to the effective use of the available resources , it is expedient to give the power to find a breach and set compensation to an existing authority with similar competences . In view of the constitutional function of the ORG attached to ORG to check the work of the judiciary ( LAW ) and more specifically its power under section CARDINAL(CARDINAL)(CARDINAL ) of LAW [ DATE ] to check the processing of court , ORG and investigation cases and their completion within the prescribed time - limits , the bill envisages the creation of a special unit attached to the ORG . That special unit will examine and decide complaints relating to breaches concerning the unreasonable length of completed civil , administrative and criminal cases , as well as discontinued pre - trial proceedings . An important premise for laying down the procedure in such a way is the ORG \u2019s constitutional obligation to carry out checks pursuant to reports by private individuals and legal persons ( LAW ) .","The right to complain is open to all persons who may suffer damage as a result of delays in proceedings : parties to judicial proceedings ( civil , administrative and criminal ) or persons subjected to the pre - trial phase of criminal proceedings ( accused , victims and wronged legal persons ) .","The envisaged procedure will be a light ( simple ) way of obtaining redress . The complainant will not have to produce evidence \u2013 it will be gathered by the checking panel of their own motion ; no fees will be due ; the proceedings will finish in DATE with a settlement , which will ensure fast payment of the compensation .","Since the proposed procedure envisages a light and fast mode of redress , there is a cap on the maximum amount of compensation . This cap conforms with the DATE \u2019s case - law on the amount of compensation awarded in past cases .","The transitional and concluding provisions allow the procedure to be applied in respect of complaints already lodged through the ECtHR .","The compensatory remedy has to have retrospective effect , so as to be available to persons who have become victim of excessive length of proceedings even before the coming of the LAW into force , including those who have lodged applications with the ECtHR , if that court has not yet ruled on the admissibility of those applications .","The creation of an effective domestic remedy will ensure a drastic reduction of the number of applications to the ECtHR and will thus lead to less judgments finding a breach of LAW . \u201d","The bill underwent its first reading on DATE , and its second reading on DATE , when it was adopted . The LAW was published in ORG on DATE . It inserted a new LAW in the DATE Act . The LAW is entitled \u201c Examination of applications against breaches of the right to examination and determination of the case within a reasonable time \u201d and consists of CARDINAL sections . The newly introduced provisions , the bulk of which came into force on DATE , read as follows :","DATE . ( CARDINAL ) This chapter applies to applications by individuals and legal persons against decisions , actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time .","( CARDINAL ) ORG under subsection CARDINAL shall be lodged by individuals and legal persons who are :","NORP parties to finished civil , administrative or criminal proceedings ;","NORP accused , victims or wronged legal persons in discontinued pretrial proceedings ;","( CARDINAL ) This chapter set out the manner of determining and paying compensation in line with the case - law of ORG not amounting to MONEY .","( CARDINAL ) ORG under subsection CARDINAL shall be lodged within DATE after the conclusion of the proceedings at issue with a final decision , though the ORG attached to ORG to the Minister of ORG .","( CARDINAL ) A special register shall be created for the applications , and it shall be published on the internet site of the ORG attached to ORG .","( CARDINAL ) No fees shall be due for the examination of applications under this chapter .","DATE . ( CARDINAL ) The application must be written in NORP and set out :","NORP for NORP nationals \u2013 their names as featuring in the identification documents ; uniform citizen number and address ; telephone , fax and electronic address , if any ;","NORP for foreigners \u2013 their names as featuring in the identification documents ; uniform foreigner number and address ; telephone , fax and electronic address , if any ;","NORP the commercial firm of the trader or the name of the legal person , written in NORP ; the seat and the latest registered address and electronic address ;","NORP the decision , action or omission alleged to amount to a breach by the respective authority ;","NORP the authority to which the application is addressed ;","the request for relief ;","NORP the applicant \u2019s signature .","( CARDINAL ) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings .","DATE . ( CARDINAL ) ORG under section CARDINALa(CARDINAL ) shall be examined by the ORG attached to ORG , which shall set up a special unit for this purpose .","( CARDINAL ) The experts staffing the unit shall be lawyers who have DATE of professional experience . Their remuneration shall be equal to that of a district court judge .","( CARDINAL ) The chief inspector shall allocate incoming applications to panels consisting of CARDINAL inspector and CARDINAL experts , randomly selected , and CARDINAL of the experts shall be appointed as rapporteur .","( CARDINAL ) If the application does not meet the requirements of section CARDINAL ) or ( CARDINAL ) , the applicant shall be given notice to rectify the deficiencies within DATE of receiving the notice .","( CARDINAL ) If the applicant does not rectify the deficiencies , the application and the supporting documents shall be returned .","DATE . ( CARDINAL ) The results of the examination shall be noted down in a record of findings .","( CARDINAL ) That record shall be signed by the members of the panel and shall contain information about :","NORP the time and place where and when it has been drawn up ;","NORP the applicant ;","NORP the panel which has examined the application ;","NORP the case in respect of which it is being drawn up ;","NORP the overall duration of the proceedings ; the period of delay attributable to the competent authority ; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative ;","( CARDINAL ) The record of findings shall also set out the view of the panel as to whether the time - limit under section CARDINAL ) has been met .","ORG . The record of findings under section DATE shall be drawn up within DATE of receipt of the application or the rectification of its deficiencies , as the case may be . The record , along with the application and all supporting documents , shall be sent immediately to the Minister of ORG .","DATE . ( CARDINAL ) Based on the findings of the panel , the Minister of ORG or a person authorised by him or her shall reject the application as unfounded if","NORP the length of the proceedings has not exceeded a reasonable time ;","NORP the delay is due to actions or omissions of the applicant or his legal or procedural representative .","( CARDINAL ) NORP If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached , the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the caselaw of ORG and shall propose the conclusion of a settlement with the applicant .","CARDINAL g . NORP The underlying circumstances shall be examined and the application shall be determined within DATE of the application \u2019s receipt .","Compensation shall be paid on the basis of the concluded settlement .","PERSON . The funds required for the payment of sums under concluded settlements shall be covered by the NORP budget .","DATE . NORP ( CARDINAL ) ORG due under this chapter shall be paid out of the budget of ORG .","( CARDINAL ) Each DATE the Minister of Finance shall make available to the budget of ORG funds matching the compensations actually paid under subsection CARDINAL during that DATE through a modification of the budgetary arrangements with the central ORG budget .","Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings .","( CARDINAL ) Every quarter the chief inspector shall send to ORG information about breaches found , and Minister of Justice \u2013 about compensations paid out .","( CARDINAL ) Every DATE ORG shall analyse the reasons for the breaches and shall take measures to eliminate them .","( CARDINAL ) ORG shall publish on its internet site the information under subsections CARDINAL and CARDINAL .","Paragraphs DATE and CARDINAL of the transitional and concluding provisions of the amending LAW provide as follows :","( CARDINAL ) Within DATE of the entry into force of LAW or of notification by ORG , persons who have lodged with ORG applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under LAW , except in cases where the ORG has already given judgment on the merits of the application or has rejected the application as inadmissible .","( CARDINAL ) ORG under subparagraph CARDINAL shall be examined within DATE of their receipt .","To ensure the application of LAW in DATE ORG shall make available additional funds in the budgets of the ORG and ORG .","In a decision of CARDINAL DATE that came into effect on DATE ( PERSON \u2116 CARDINAL \u043e\u0442 CARDINAL \u0441\u0435\u043f\u0442\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u0437\u0430 \u043e\u0434\u043e\u0431\u0440\u044f\u0432\u0430\u043d\u0435 \u043d\u0430 \u0434\u043e\u043f\u044a\u043b\u043d\u0438\u0442\u0435\u043b\u043d\u0438 \u0431\u044e\u0434\u0436\u0435\u0442\u043d\u0438 \u043a\u0440\u0435\u0434\u0438\u0442\u0438 \u043f\u043e \u0431\u044e\u0434\u0436\u0435\u0442\u0430 \u043d\u0430 \u0441\u044a\u0434\u0435\u0431\u043d\u0430\u0442\u0430 \u0432\u043b\u0430\u0441\u0442 \u0438 \u043f\u043e \u0431\u044e\u0434\u0436\u0435\u0442\u0430 PERSON \u043d\u0430 \u043f\u0440\u0430\u0432\u043e\u0441\u044a\u0434\u0438\u0435\u0442\u043e \u0437\u0430 DATE \u0433. ) , ORG increased the budget of the judiciary with CARDINAL NORP levs earmarked for the creation , in the ORG attached to ORG , of the special unit dealing with applications under LAW of the DATE LAW of the decision ) .","In DATE the ORG appointed a number of officials and assigned them to the special unit dealing with applications under LAW of the DATE Act . On DATE the ORG published on its website an application form and a sample declaration under section CARDINALb(CARDINAL ) of the CARDINAL Act ( see paragraph CARDINAL above ) . It later put on its website software allowing applicants to lodge applications electronically and track their progress online .","On DATE the Government laid before ORG a bill for the amendment of the ORG and ORG DATE ( \u201c the DATE LAW ) . The explanatory notes to the bill said the following :","\u201c An analysis of the judgments in which ORG has found violations in respect of GPE shows that there are repetitive violations due to the lack of an effective domestic remedy allowing those concerned to obtain redress . More specifically , there is a need to create a domestic remedy allowing those concerned to obtain compensation for damage resulting from a breach of the [ Convention ] made by the ORG or its authorities or officials . ORG finding that the law of GPE does not make provision for such a remedy calls for its creation through an expansion of the ambit of the ORG and ORG [ DATE ] . This will overcome the prior approach \u2013 to provide for liability only in specific circumstances DATE which has led to many violation judgments of [ the ORG ] against GPE .","For that purpose , it is proposed to make the following amendments and additions to the LAW :","...","NORP The proposal to insert a new section CARDINAL seeks to broaden the ambit of the LAW , so that it embrace also cases of \u2018 delayed justice\u2019 . Under the pilot judgments of ORG in the case of Finger [ cited above ] ( which concerns civil cases ) and the joined cases of GPE and GPE [ cited above ] ( which concern criminal cases ) , which find breaches of LAW , the NORP authorities must , within DATE ( until DATE ) put in place a mechanism to resolve the systemic problem concerning the \u2018 reasonable time\u2019 of proceedings . The envisaged amendments create a mechanism for the compensation of damage .","Individuals and legal persons whose right to have their cases examined and decided within a reasonable time been breached may bring claims under section CARDINAL only if they have exhausted the administrative procedure for obtaining compensation under LAW of LAW [ DATE ] but have not reached a settlement .","At the same time , in cases of separate breaches occurring in one and the same proceedings , the fact that a person has brought a claim in respect of CARDINAL breach does not prevent him or her from seeking compensation in respect of a breach of the right to a trial within a reasonable time in cases where the overall length of the proceedings has been excessive .","NORP ... As regards claims for compensation in respect of breaches of the right to have one \u2019s case examined and decided within a reasonable time , [ the amendments ] envisage that such claims , in view of their character and subject matter , shall be examined by the court having local jurisdiction in the place where the aggrieved person has his or her current address or its seat .","It is proposed to insert transitional provisions under which , within DATE of the entry into force of the LAW or of notification by ORG , persons whose applications to [ that ORG ] have been rejected due to failure to exhaust the newly created domestic remedies , and whose proceedings are still pending before the national courts , may also bring claims for compensation under section CARDINAL .","In respect of proceedings which have already ended at the national level , within DATE of the entry into force of the LAW or of notification by ORG , persons whose applications to [ that ORG ] have been rejected due to failure to exhaust the newly created domestic remedies may lodge applications for compensation under LAW of LAW [ DATE ] .","Persons whose national pretrial or judicial proceedings have ended at the time when the LAW comes into force , and DATE have elapsed since the final decision , shall also have the right to lodge applications for compensation under LAW of LAW [ DATE ] within DATE of the LAW \u2019s entry into force .","The bill reflects the proposals of nongovernmental organisations , ORG Rights\u2019 caselaw , and the recommendations of ORG , and with it GPE shall fulfil its duties of ORG to the [ Convention ] . \u201d","The bill underwent its first reading on DATE and its second reading on DATE , when it was adopted . LAW was published in ORG on DATE and came into force on DATE . It amended a number of provisions of the CARDINAL Act . In particular , it inserted a new section CARDINAL , which is entitled \u201c Liability of the judicial authorities for breaches of the right to have one \u2019s case examined and decided within a reasonable time \u201d and reads as follows :","\u201c CARDINAL . The ORG shall be liable for damage caused to individuals or legal persons by breaches of the right to have one \u2019s case examined and decided within a reasonable time , in accordance with LAW .","Claims under subsection CARDINAL shall be examined in the manner provided by LAW [ DATE ] , and the court shall take into account the overall duration and the subject matter of the proceedings , their factual and legal complexity , the conduct of the parties and their procedural or legal representatives , the conduct of the other participants in the proceedings and of the competent authorities , as well as other facts which have a bearing on the proper determination of the dispute .","The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end . \u201d","A new section CARDINAL(CARDINAL ) provides that claims for compensation under section CARDINAL are to be brought in the court in whose region the aggrieved person has his or her current address or seat .","A new section CARDINAL(CARDINAL ) provides that individuals or legal persons may bring claims under section CARDINAL ) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under LAW of the CARDINAL LAW ( see paragraph CARDINAL above ) but that procedure has not resulted in a settlement .","Paragraphs CARDINAL and CARDINAL of the transitional and concluding provisions of the amending LAW provide as follows :","\u201c CARDINAL . ( CARDINAL ) Within DATE of the entry into force of this LAW or of notification by ORG , persons whose applications to ORG have been rejected due to failure to exhaust the newly created domestic remedies , and whose proceedings are still pending before the national courts , may also bring claims for compensation under section CARDINAL .","( CARDINAL ) Within DATE of the entry into force of this LAW or of notification by ORG , persons whose applications to ORG have been rejected due to failure to exhaust the newly created domestic remedies , and whose proceedings at national level have already ended , may lodge applications for compensation under LAW of the [ CARDINAL Act ] .","Persons whose national pretrial or judicial proceedings have ended at the time when this LAW comes into force , and DATE have elapsed since the final decision , shall also have the right to lodge applications for compensation under LAW of the [ CARDINAL Act ] within DATE of this LAW \u2019s entry into force . \u201d","Section CARDINAL of the DATE Act provides that the ORG is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned act , action or omission . However , ORG and ORG have held that legal persons , such as commercial companies , can not suffer nonpecuniary damage and are not entitled to compensation for such damage ( see \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0440\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , III \u0433. \u043e. , and \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u044e\u043d\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , ORG ) .","Section CARDINALa(CARDINAL ) of the LAW , which was inserted in DATE and came into force in DATE , provides that the fee due in respect of cases under the LAW is flat and is to be fixed in a tariff adopted by the ORG . Under the LAW of fees collected by the courts under LAW , as currently in force , the fee is ORG in respect of firstinstance proceedings , ORG in respect of appellate proceedings , and ORG in respect of cassation proceedings . The fee is payable upfront ( see \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , ORG ) .","Section CARDINAL(CARDINAL ) of the LAW , as worded after DATE , provides that if the claim is rejected in full , the court must order the claimant to pay the costs of the proceedings . The claimant must also pay those costs if he or she withdraws the claim in its entirety .","Section CARDINAL(CARDINAL ) of the LAW , which was also inserted in DATE and came into force in DATE , provides that if a claim under the LAW is allowed fully or in part , the court is to order the defendant to pay the costs of the proceedings and to reimburse the court fee paid by the claimant . The defendant must also pay the claimant the fee of CARDINAL counsel , if the claimant had retained counsel , pro rata the allowed part of the claim .","In their caselaw under section ORG ) and ( CARDINAL ) , ORG and ORG have held that it is a lex specialis in relation to the general rules on costs in LAW , and that in the case of a partly rejected claim the defendant authority is not entitled to costs ( see \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , I \u043e. ; MONEY \u043e\u0442 CARDINAL \u043c\u0430\u0440\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. \u0412\u041a\u0421 , III \u0433. \u043e. ; and \u043e\u043f\u0440. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0447. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG , III \u0433. \u043e. ) .","Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure DATE , superseded on DATE by LAW DATE , which is couched in identical terms , provided that when on account of the character of the right in dispute the court \u2019s ruling had to be the same in relation to all coclaimants or codefendants , they were regarded as mandatory coclaimants or codefendants ( \u043d\u0435\u043e\u0431\u0445\u043e\u0434\u0438\u043c\u0438 \u0434\u0440\u0443\u0433\u0430\u0440\u0438 ) and the procedural steps taken by CARDINAL of them produced effects in respect of all of them .","Article CARDINAL of the Code of Civil Procedure DATE provides as follows :","\u201c CARDINAL . The enforcement of money claims against ORG bodies and municipalities is not allowed .","Money claims against ORG bodies and municipalities shall be paid out of funds allotted for that purpose in their budgets . For this purpose , the writ of execution shall be presented to the financial department of the [ ORG ] body in issue . If no funds have been allocated , the higher [ ORG ] body shall take the necessary measures to provide such funds at the latest in the next budget . \u201d","In DATE the Ombudsman of the Republic challenged that provision before ORG . He argued , inter alia , that it fell foul of several Articles of the DATE LAW CARDINAL \u00a7 CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL . On DATE ORG , noting that under LAW of the DATE LAW the ORG was not entitled to seek from ORG declarations that statutes are contrary to international treaties to which GPE is party , declared the request admissible in so far as the allegations of unconstitutionality were concerned and inadmissible in so far as the allegations of lack of compliance with the LAW and its LAW were concerned . In a judgment of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u043a. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , \u043e\u0431\u043d. GPE , \u0431\u0440. CARDINAL\/CARDINAL \u0433. ) , ORG refused to declare LAW unconstitutional in so far as it concerns ORG bodies , but declared it unconstitutional in so far as it concerns municipalities .","ORG examined the amendments to the DATE and the DATE Acts at its CARDINALth meeting , held on CARDINAL September CARDINAL . Based on an information document drawn up by ORG of ORG ( CM \/ Inf \/ DH(CARDINAL)CARDINAL ) , the ORG adopted the following decision :","\u201c The Deputies","took note with interest of the revised action report submitted by the authorities on DATE presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings , as well as of a draft bill for the introduction of a judicial compensatory remedy in this field ;","NORP approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document ORG \/ DH(CARDINAL)CARDINAL and invited the NORP authorities to provide clarifications as concerns outstanding questions identified in this information document ;","invited the NORP authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the ORG in this respect ;","decided to declassify information document ORG \/ DH(CARDINAL)CARDINAL ;","ORG decided to resume consideration of these cases , including the question of the measures aimed at reducing the length of the judicial proceedings , during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question . \u201d","DATE . ORG again examined the amendments at its CARDINALth meeting , held on DATE . Based on an information document drawn up by ORG of ORG ( CM \/ Inf \/ DH(CARDINAL)CARDINAL ) , ORG adopted the following decision :","\u201c The Deputies","As regards the effective remedies required in this field :","recalled their decision adopted during their CARDINALth meeting ( DH ) ( DATE ) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings , taken together , seem capable of meeting the main requirements of the caselaw of the ORG ;","NORP noted with satisfaction the adoption by ORG , on DATE , of the legislative amendments aimed at introducing the abovementioned judicial remedy ; noted in this respect that according to the information submitted , the adopted provisions are identical to those already assessed by the ORG , except for those relating to the competent courts ; invited the authorities to keep the ORG informed about the entry into force of the adopted provisions and to provide it with their translation ;","NORP noted with interest the explanations provided by the NORP authorities in relation to some outstanding questions identified in Information document ORG , in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of ORG in this respect ; invited them to reply to the other outstanding questions contained in ORG document ORG GPE , namely as concerns the functioning of the administrative compensatory remedy ;","...","invited the authorities to reply to the other outstanding questions identified in Information document ORG \/ GPE and decided to declassify it . \u201d","The information document forming the base for this decision ( ORG DH(CARDINAL)CARDINAL ) was drawn up on DATE and reads as follows :","\u201c ...","I. Compensatory remedies elaborated in response to the pilot judgments","NORP Presentation of the adopted administrative compensatory remedy","Positive aspects of the administrative compensatory remedy","The [ DATE ] Act provides that applications for compensation in respect of excessive length of proceedings are to be addressed to the Minister of ORG through ORG . When examining these claims , the Minister ( or a person authorised by him or her ) is assisted by a panel made up of an Inspector and CARDINAL experts working in a special unit of that ORG . The timelimit for the examination of applications is DATE . The procedure is free of charge for the claimants .","NORP The applications are to be directed \u2018 against acts , actions or omissions of judicial authorities\u2019 , breaching the right to have a case heard and decided within a reasonable time . The authorities have indicated that this wording would not preclude the examination of applications concerning delays that do not stem from omissions by individual judges or judicial officers but , for instance , from an overburdening of the judicial system as a whole .","The criteria which must be taken into account when examining applications are the overall length of the proceedings , the delays attributable to the authorities , as well as the delays attributable to the applicant and his representative ( [ s]ection CARDINALd(CARDINAL)(CARDINAL ) ) . The merits of the application and the amount of compensation are to be determined in light of the ORG \u2019s caselaw .","The compensation is to be paid out of the budget of ORG . ORG must then restore to the budget of ORG the funds paid as compensation DATE .","Assessment :","The law governing the administrative remedy imposes on the authority competent to examine applications for compensation the obligation to take into account the overall length of the proceedings and the conduct of the parties and of the competent authorities , in line with the ORG \u2019s caselaw . The legal or factual complexity of the case and the stakes involved in the dispute are not mentioned explicitly , but the general reference to the ORG \u2019s case - law should be enough to cause them to be taken into account as well . The new provisions also seem to take into account the caselaw of the ORG as to , inter alia , the promptness of the examination , the absence of charges for the introduction of a claim and the existence of specific budgetary provisions . In conclusion , this administrative remedy takes into account , to a very large extent , the criteria used by ORG for the assessment of the excessive length of proceedings .","Questions raised by the administrative compensatory remedy","The administrative remedy put in place raises a number of questions , namely : ( a ) the fact that it does not apply to proceedings which are pending , ( b ) the wording of the provision governing the retrospective effect of the remedy and ( c ) the compliance of the remedy with the institutional requirements of LAW , ( d ) the compensation ceiling and ( e ) the payment of compensation . In this respect , it should be recalled that the ORG has constantly indicated in its caselaw that even if a particular remedy does not fully satisfy the requirements of LAW , the aggregate of remedies under domestic law may satisfy these requirements . Therefore , the questions raised by this remedy and its weaknesses may be examined also in the light of the judicial compensatory remedy adopted at first reading by ORG ( for a detailed presentation of the judicial remedy , see paragraphs PERSON below ) .","( a ) ORG of the administrative remedy to proceedings which are still pending","NORP The administrative remedy provides that only parties to completed judicial and pre - trial proceedings are entitled to introduce applications for compensation within DATE of the end of the proceedings in question . If the proceedings are still pending , the parties have to wait for them to end in order to submit a claim to the Minister of ORG , whatever the delays already accumulated . In contrast , it appears from the information presented by the NORP authorities that the proposed judicial remedy for length of proceedings would also be applicable to proceedings which are still pending .","Assessment :","It should be recalled that the ORG has already held that the impossibility to use a remedy against the excessive length of proceedings which are still pending may render such a remedy ineffective . It should also be recalled that the pilot judgments require the introduction , within the timelimit set in the operative part of the judgments , of a remedy that fully complies with the ORG \u2019s caselaw . It thus appears that the introduction of just an administrative remedy with limited scope is not sufficient to ensure the full execution of the pilot judgments . This lacuna could , however , be overcome by the introduction , without delay , of a judicial remedy which fully complies with the requirements of the ORG \u2019s caselaw , as the NORP authorities seem to have foreseen .","( b ) Wording of the provision governing the retrospective effect of the remedy","Paragraph CARDINAL(CARDINAL ) of the transitional provisions of the [ DATE Act ] , which concerns the retrospective effect of the new remedy , is worded as follows ( emphasis added ) :","\u2018 Within DATE of the entry into force of LAW or notification by ORG , persons who have lodged with ORG applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under LAW , except in cases where the ORG has already given judgment on the merits of the application or has rejected the application as inadmissible.\u2019","Assessment :","The current wording of paragraph CARDINAL suggests that the new remedy will not be available to applicants whose applications are declared inadmissible by the ORG , and this without making the distinction between the different grounds of inadmissibility . This provision should therefore be amended in order to indicate clearly that it will be available to persons whose applications , introduced before its adoption , are declared inadmissible for nonexhaustion of the domestic remedies . Thus , if the ORG confirms the effectiveness of the new remedy or of the aggregate of new remedies , it will be able to declare inadmissible the applications pending before it for non - exhaustion of this remedy \/ these remedies and the applicants concerned will be able to introduce their applications for compensation at the domestic level . The authorities have indicated that this provision will be amended in the near future in order to ensure that applicants whose applications have been declared inadmissible for nonexhaustion of the domestic remedies will be able to use effectively this new remedy at the domestic level . Information is awaited on the timetable for the adoption of this amendment .","( c ) Compliance of the remedy with the institutional requirements of LAW","The new provisions of the [ DATE ] Act describe in considerable detail the procedure for the examination of applications for compensation for excessive length of proceedings . The relevant facts for the examination of a complaint concerning excessive length of proceedings are to be established by a panel of CARDINAL Inspector from ORG and CARDINAL experts working in a special unit of this ORG . This panel communicates its findings to the Minister or to the person whom he or she has authorised to act on his or her behalf .","NORP If the Minister of Justice or the person designated by him or her finds that the reasonable - time requirement has not been breached , he or she has to reject the application . If the Minister or the person designated by him or her finds , on the contrary , that the reasonable - time requirement has been breached , he or she has to fix the amount of compensation in line with the ORG \u2019s case - law and propose a settlement to the claimant . Claimants who have accepted the settlement and have obtained compensation under that procedure can not claim compensation in judicial proceedings .","The [ DATE ] Act does not contain specific provisions concerning a possible judicial review of the decisions rejecting applications or proposing a settlement .","Assessment :","It should be recalled that the authority to which LAW refers does not need to be a judicial one for a remedy to be considered effective under the ORG \u2019s caselaw . However , the effectiveness of the remedy before that authority is assessed by reference to the guarantees that it affords ( see , among other authorities , PERSON [ v. ] GPE , CARDINAL DATE , \u00a7 CARDINAL , Series A No . CARDINAL ) . In particular , the decisionmaking body needs to have a \u2018 sufficiently independent standpoint\u2019 ( see , among other authorities , Silver and [ O]thers [ v. ] GPE , DATE , \u00a7 QUANTITY , Series A No . CARDINAL ) . It should also be noted that the ORG requires in principle that the authority in charge of the implementation of a domestic remedy be able to come up with a \u2018 legally binding GPE , some element of enforceability being generally required ( see , among other authorities , GPE , cited above , \u00a7 CARDINAL ) . As said above , the caselaw also indicates that even if a single remedy does not fully satisfy the requirements of LAW , the aggregate of remedies under domestic law may do so ( see , among other authorities , GPE , cited above , \u00a7 CARDINAL ) .","In the light of the information currently available , it is not clearly established whether the new administrative procedure under the [ DATE ] Act can be regarded as providing alone the required \u2018 element of enforceability\u2019 and sufficient \u2018 ORG . However , for the reasons set out below , if an effective judicial remedy is introduced without delay , the aggregate of remedies could in principle meet the institutional requirements of LAW .","According to the authorities , the settlements proposed by the Minister of ORG should be considered as legally binding decisions , because under the [ CARDINAL]Act , as amended , the Minister of Finance has to guarantee to ORG funds up to the amounts paid in compensation to claimants . However , a question remains whether the decision of the Minister of ORG taken on applications for compensation , whether positive or negative , can be considered to have itself a legally binding effect in cases in which no settlement has been concluded . In any event , according to the draft bill for the amendment of the [ CARDINAL Act ] ( aiming at the introduction of a judicial remedy ) , unsuccessful claimants in the procedure before the Minister of Justice and claimants who have refused to conclude a settlement , will have the right to request compensation in the context of judicial proceedings ( see paragraphs CARDINAL and CARDINAL below).Thus , it seems that DATE if the foreseen judicial remedy is adopted DATE in the absence of a settlement the claim could be resolved by a final and legally binding decision in the context of judicial proceedings .","As to the issue of independence of the decisionmaking body , it should be recalled that , in a case against GPE , the ORG accepted that an administrative remedy was effective because the persons who were not satisfied with the decision of ORG on their applications for compensation could seek compensation in the context of judicial proceedings ( see PERSON [ v. ] GPE DATE . ) , No . CARDINAL , \u00a7 CARDINAL , DATE ) . Thus , if only an administrative remedy is introduced , the availability of judicial review of the decisions of the Minister of ORG may prove crucial for the remedy to meet the institutional requirements of the ORG \u2019s caselaw . By contrast , if an effective judicial remedy is introduced without delay as foreseen by the NORP authorities , the aggregate of the CARDINAL remedies could in principle meet the institutional requirements of LAW , even in the absence of judicial review of the minister \u2019s decisions .","( d ) Compensation ceiling","The [ DATE Act ] provides that compensation can not exceed MONEY ( ORG ) ( MONEY ( ORG ) ) .","Assessment :","As concerns the abovementioned compensation ceiling , there may be situations in which that sum will fall short of the amounts awarded in compensation by the ORG . That said sums of up to ORG CARDINAL appear sufficient , in the light of the ORG \u2019s judgments against GPE concerning length of proceedings , to compensate adequately the nonpecuniary damage arising in the majority of cases concerning excessive length of proceedings in GPE . Moreover , if an effective judicial remedy is introduced without delay as foreseen by the NORP authorities , the aggregate of newly introduced remedies would normally be sufficient to provide an adequate level of compensation in all situations , as the draft law concerning the introduction of judicial remedy does not provide for a compensation ceiling .","( e ) Timelimit and procedure for payment of compensation","The [ DATE ] Act makes provision for a specific funding mechanism for the payment of compensations for excessive length of procedure ( see paragraph CARDINAL above ) . It does not seem to contain any specific provisions concerning the procedure for payment of compensation . In their reply to the questions identified in the memorandum ORG ( see PERSON ) , the authorities indicated that budgetary funds and other measures have been foreseen in order to avoid delays in the payment of compensation .","Assessment :","The ORG \u2019s caselaw requires that payment should normally be made not DATE after a judgment or a decision in that respect has become enforceable . Given the importance attached by the ORG to this requirement , it seems useful to provide the ORG with detailed information on the payment procedure and on the timelimits in which the payments are made in practice .","B. Presentation of the proposed judicial remedy","The following presentation is based on the translation of the draft bill for the amendment of LAW presented by the NORP authorities on DATE ( see DHDD(CARDINAL)CARDINAL ) . The judicial remedy adopted at first reading by ORG seems to comply in principle with the main requirements of the ORG \u2019s case - law in the field of compensatory remedies for excessive length of proceedings . However , some clarifications still seem necessary .","( a ) Scope of the remedy","Section CARDINAL of the draft bill for the amendment of the [ CARDINAL Act ] provides that the ORG is responsible for damages caused to persons and legal entities through breaches , by the judicial authorities , of the right enshrined in LAW to have their cases examined and resolved within a reasonable time . The claims have to be examined under the rules of LAW . The court have to take into account the legal and factual complexity of the case , the conduct of the claimant , the conduct of the other parties and participants in the proceedings and the conduct of the competent authorities , the stakes involved in the dispute , as well as the overall length of the proceedings . The introduction of a claim for damages while the proceedings are still pending is not an obstacle to introducing a claim for damages after the end of these proceedings . The authorities have confirmed that the scope of the judicial remedy comprises the actions of the prosecutors and the investigating magistrates , as well as the actions of the police investigators ( to which makes reference paragraph CARDINAL of the transitional and final provisions of the draft bill for the amendment of the [ CARDINAL Act ] ) .","As concerns the question of the applicability of the judicial remedy to the procedures concerning execution of court decisions , it should be noted that the majority of the execution proceedings in GPE are conducted by private bailiffs whose civil responsibility can be engaged in a case of damage caused by their activity . As far as the public bailiffs are concerned , although their status is governed by the [ CARDINAL ] Act , they are not magistrates . Therefore , it is not clear whether their actions are covered or not by the scope of the proposed judicial remedy .","Assessment :","The scope of the proposed judicial remedy seems to comply with the relevant requirements of the ORG \u2019s caselaw . The draft Section CARDINAL refers to breaches of the reasonable time requirement attributable to the judicial authorities . Although this provision does not mention explicitly the delays caused by the police investigators , the NORP authorities have indicated that the delays which have occurred at the stage of the preliminary investigation and are attributable to the police investigators will fall within the scope of the judicial remedy . It would be useful to clarify whether this is so also in respect of the actions of the public bailiffs responsible for the execution of a court decision .","( b ) Procedure according to which a claim should be examined : length and applicable court fees","The draft bill for the amendment of the [ CARDINAL Act ] provides that claims will be examined under the rules of LAW [ DATE ] . Under NORP law , a civil dispute can be examined by CARDINAL levels of jurisdiction .","Under the provisions of [ LAW ] , a flatrate court fee is due to file a claim under LAW which is either ORG for physical persons or ORG CARDINAL for legal persons ( EUR CARDINAL.CARDINAL or EUR CARDINAL ) . The claimants must pay all the costs incurred in the proceedings only if their claim has been entirely rejected or if they withdraw or waive their claim entirely . If the court decides in favour of the claim , in whole or in part , the defendant should be ordered to pay the costs relating to the proceedings , as well as the claimant \u2019s court fees . If a claim is granted only in part , the claimant receives only partial reimbursement of the lawyer \u2019s fees . The authorities have specified that according to domestic caselaw , if a claim is partially rejected , the claimant should not be required to pay the part of the lawyer \u2019s fees incurred by the defendant .","Assessment :","One of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time . The ORG suggested in this respect that \u2018 consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages , to avert the risk that , if examined under the general rules of civil procedure , the remedy may not be sufficiently ORG . However , the introduction of such special rules was not set out as a requirement for the effectiveness of the future remedy or aggregate of remedies . Therefore , the absence of such special rules does not per se put into question the efficiency of the proposed judicial remedy . Moreover , the adopted administrative remedy , if correctly implemented , could provide swift redress to many potential claimants .","As concerns the requirement set out in the pilot judgments that the rules governing costs must not place an excessive burden on litigants where their claim is justified , it seems that , even if a claim has been partly rejected , successful claimants could not be required to pay costs relating to the proceedings and the part of the lawyer \u2019s fees incurred by the defendant and that their court fees are to be reimbursed .","( c ) Need to exhaust the administrative remedy in some situations","NORP Parties to completed judicial proceedings will need to exhaust the administrative remedy before introducing a judicial claim . According to [ LOC ) of the draft bill for the amendment of LAW , the judicial remedy is not available to claimants who have concluded a settlement in the administrative procedure .","Assessment :","As said above , CARDINAL of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time . It seems that the requirement for a certain category of claimants to exhaust the administrative remedy before introducing a judicial remedy will not have a considerable impact on the promptness of the compensation process as a whole , because it seems that the administrative phase could be very short ( cf . the sixmonth\u2019 timelimit for the examination of applications , paragraph CARDINAL above ) .","( d ) Retrospective effect","Paragraph CARDINAL(CARDINAL ) of the transitional and final provisions of the draft bill for the amendment of the [ CARDINAL Act ] provides that persons whose applications have been rejected by ORG on the ground of nonexhaustion of the newly introduced domestic remedies and who have been parties in completed judicial proceedings will be able to introduce administrative applications for compensation within DATE of the entry into force of the amendments or within DATE of the notification by ORG . Under the same conditions , applicants to the ORG who have seen their application rejected for nonexhaustion of the domestic remedies and who are parties in pending proceedings at the domestic level will be able to introduce judicial claims for compensation .","According to paragraph CARDINAL of the transitional and final provisions of the draft bill for the amendment of the [ CARDINAL Act ] , parties to proceedings which have been completed DATE before the entry into force of the draft bill will also have access to the judicial remedy .","Assessment :","The provisions concerning the scope of the retrospective effect of the proposed judicial remedy seem to comply with the recommendations given by ORG under Article CARDINAL in the pilot judgments .","( e ) Timelimit and procedure for payment of compensation","Unlike the [ DATE ] Act , the draft bill for the amendment of the [ CARDINAL Act ] does not seem to provide for specific budgetary provisions concerning the payment of compensations for excessive length of proceedings . In their response to the questions identified in the memorandum ORG ( see PERSON ) , the authorities indicated that it is foreseen that the amendments to the [ CARDINAL LAW ] will be accompanied by the provision of budgetary funds to the institutions concerned .","It seems that according to the relevant budgetary rules , the payment of compensation granted in the event of successful claim against a court \/ the prosecution should be made out of the budget of the court in question \/ of the prosecution . Likewise , LAW provides that persons who have financial claims against public institutions have to submit the writ of execution to the institution \u2019s financial department in order to receive payment . Payments are made out of the funds earmarked for that purpose in the institution \u2019s budget . If there are no funds available , a budgetary provision for this purpose should be made available DATE .","Assessment :","As said above in paragraph DATE , the ORG \u2019s caselaw requires that payment should normally be made not DATE after a judgment or a decision in that respect has become enforceable . Given the importance attached by the ORG to this requirement , it seems useful to provide the ORG , in due time , with information on the exact content of the budgetary provisions taken by the authorities in order to ensure the funding of compensations for excessive length of proceedings and on any other measure aimed at avoiding late payment of compensation .","...","Conclusion","In the light of the information available , it seems that the administrative remedy which entered into force on [ DATE ] represents a very positive step forward towards the execution of the pilot judgments of the ORG . This remedy does not in itself comply with all the requirements of the LAW , but most of the outstanding questions could be addressed by the proposed judicial remedy in the field of excessive length of proceedings , if the latter is adopted without delay . Thus , it seems that the aggregate of these CARDINAL remedies could in principle comply with the main requirements of the ORG \u2019s caselaw . Therefore , it seems useful to invite the NORP authorities to adopt without delay the judicial remedy proposed and to encourage them to take the necessary measures in order to ensure for themselves that the new remedies will be applied in compliance with this case - law . Likewise , it seems useful to encourage the authorities to continue with their works regarding the introduction of a remedy which allows requesting the acceleration of the criminal proceedings . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-127221","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2013,"docname":"CASE OF BAKLANOV v. UKRAINE","importance":3,"conclusion":"Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection not necessary to examine (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)","judges":"Ale\u0161 Pejchal;Angelika Nu\u00dfberger;Ann Power-Forde;Ganna Yudkivska;Helena J\u00e4derblom;Mark Villiger","text":["The applicant was born in DATE and lives in ORG in the GPE region .","On DATE the applicant was found fit for mandatory military service and was drafted into the army . He was willing to perform his military service and had no psychiatric or psychological concerns . Nor had he previously experienced any mental disorders .","After a brief period in a training camp , the applicant was assigned to ORG , subsequently renamed PERSON ( hereinafter referred to as MUCARDINAL ) . According to the applicant , he was regularly subjected to bullying and ill - treatment by senior officers in that unit . CARDINAL such incident allegedly took place in DATE ( see paragraph CARDINAL below ) .","On DATE the applicant was transferred to Military Unit \u0410CARDINAL , subsequently renamed ORG ( hereinafter referred to as MUCARDINAL ) . He immediately attracted the attention of the commanding officers and medical staff by what they perceived as inadequate behaviour . That is , he appeared very sensitive , was not willing to communicate with fellow servicemen and expressed thoughts that could be interpreted as indicating suicidal tendencies . As a result , on DATE of his arrival , the applicant was placed in the medical station , where he was kept for DATE . According to the authorities , the purpose of that measure was to monitor the applicant \u2019s behaviour to see whether it gave rise to doubts about his fitness for continuing with his military service . The military officials also referred to the necessity to isolate the applicant from other soldiers on account of his psychological condition . According to the applicant , who did not deny the above account of his mental state , the real purpose of his placement in the medical station was to allow time for some bruises which he had to fade .","The case file does not contain the applicant \u2019s medical file for the period from DATE to DATE . According to the ORG , those documents were probably destroyed or lost during the reorganisation of the military unit in DATE ( see paragraph CARDINAL below ) .","NORP On DATE the applicant was taken to the psychiatric department of the hospital of ORG ACARDINAL ( hereinafter referred to as MUCARDINAL ) for an examination and treatment .","On DATE a medical panel at MUCARDINAL examined the applicant with a view to establishing whether he was fit for further military service . It noted in its report that the applicant complained of irritability , mood swings and headaches , the intolerable nature of the army atmosphere , and being homesick . The panel further noted that he had initially been willing to serve in the army and had had no prior psychiatric problems . However , during military service his health had gradually deteriorated . The applicant had been characterised by his fellow servicemen as unsociable , slow , untidy , short - tempered and suicidal . During his conversation with the doctors he appeared sad and emotionally fragile , sometimes tearful . The panel diagnosed him with moderate neuroticism expressed over a protracted period of time following situational triggers . It stated that his illness was related to his military service . The panel reached the conclusion that the applicant was not fit for further military service in peacetime and partially fit for service in wartime . He was also found to require a carer .","On DATE the applicant was discharged from the military hospital and from the army .","In DATE , as part of the reorganisation of ORG , the control of MUCARDINAL was transferred from ORG to ORG .","On DATE ORG of ORG ( \u201c the ORG \u201d ) registered the applicant as \u201c Category CARDINAL \u201d disabled on account of his mental condition , finding that he had lost MONEY of his capacity to work .","The applicant was granted a disability pension in the amount of CARDINAL NORP hryvnias ( ORG ) per month ( then the equivalent of QUANTITY ) .","On DATE ORG issued a note , at the applicant \u2019s request , detailing his medication needs and their costs . It specified that he required , on a regular basis , antipsychotic drugs , antidepressants and nootropics amounting to ORG CARDINAL per month , as well as some treatment which cost ORG MONEY per year .","By decisions of CARDINAL DATE , DATE and DATE , ORG confirmed that the applicant was \u201c LAW \u201d disabled on account of \u201c an illness related to his performance of military service \u201d . On the last - mentioned date it decided that his disability was permanent and that no future reassessments were required .","NORP In DATE the applicant \u2019s mother complained to the President of GPE , and apparently to some other authorities , that the applicant had been subjected to bullying and beatings during his military service at MUCARDINAL ( she probably meant MUCARDINAL \u2013 see paragraph CARDINAL below ) .","On DATE ORG of the Dnipropetrovsk Garrison ( hereafter referred to as \u201c the Dnipropetrovsk Military Prosecutor \u201d ) , to whom the aforementioned complaint had been forwarded , refused to institute criminal proceedings . He relied on the statements by ORG of MUCARDINAL and MUCARDINAL and the squadron commanders in those CARDINAL units , who denied that the applicant had been ill - treated or bullied , or that they had received any complaints from him in that regard . The prosecutor also questioned the chief of the medical station in MUCARDINAL , who stated that the applicant had displayed \u201c inadequate \u201d behaviour , but had had no injuries and had not complained of any ill - treatment . After DATE of monitoring by the medical station \u2019s doctors , it had been decided to transfer the applicant to MUCARDINAL for further examination , as that unit had a specialised psychiatric department in its hospital . Lastly , the prosecutor relied on the findings of the medical report of DATE , according to which the applicant had not raised any allegations of ill - treatment or bullying at that stage . Nor had his medical examination discovered any injuries . In sum , the prosecutor concluded that there was no case to answer .","On an unspecified date , ORG quashed the aforementioned decision and ordered an additional investigation .","On DATE the applicant gave a written statement to ORG of FAC ( near his place of residence ) in respect of his alleged ill - treatment in the army . He submitted that from DATE he had been bullied by senior soldiers in MUCARDINAL , who had extorted his military allowance and had used every possible pretext for beating him \u2013 such as allegedly inadequate cleaning or failure to accomplish a task . The applicant noted that there had been CARDINAL other junior soldier in the military unit , apart from himself , S. According to the applicant , they had often discussed their impressions of military service and had discussed the bullying incidents . The applicant admitted that he had not complained to his commanding officers , fearing that it would be considered \u2018 squealing\u2019 and would trigger reprisals . Nor had he mentioned the matter to his parents , not wanting to upset them . The applicant stated that the last time he had been beaten up was by CARDINAL officers , PERSON and another one whose name he did not know , in DATE . On DATE he had not felt well and had sought medical assistance , explaining to the doctor what had happened . According to the applicant , the actual purpose of his placement in the medical station was to allow time for his bruises to fade . At the same time , he specified that he had not been ill - treated in MUCARDINAL , where he was transferred shortly before his discharge from the army .","NORP In response to a question about the delay of DATE in raising the complaint of ill - treatment , the applicant submitted that he had been ashamed of his discharge from the army and that he had hoped to stay strong and to still be able to complete his military service . He stated that he had not realised how serious his condition was . The constant deterioration of his health had prompted him to complain to the prosecuting authorities .","As to the denial by the doctors of any injuries on the applicant at the material time , he contended that they had lied .","The applicant further noted in his statement to the prosecutor that his memory had seriously deteriorated . He could not remember the date of the beginning of his military service . Nor was he able to give details as to his alleged bullying prior to the last incident in DATE . The applicant explained that he remembered clearly only the said incident , because it had been the last one and because he had been hospitalised thereafter .","On DATE the applicant sent a letter to ORG , by registered post , requesting a copy of the decision refusing to open a criminal case into his alleged ill - treatment in the army ( which appears to be that of CARDINAL DATE see paragraph CARDINAL above ) . According to him , he received no reply .","On DATE the applicant challenged the Dnipropetrovsk Military Prosecutor \u2019s decision of CARDINAL DATE before ORG . He complained , in particular , that certain important witnesses had not been examined , namely S. and PERSON ( see paragraph CARDINAL above ) .","On DATE ORG informed the applicant by a letter that the contested decision had already been quashed in the meantime . The applicant confirmed in his submissions to the ORG that he had received the letter .","On DATE ORG again refused to institute criminal proceedings against officials of MUCARDINAL and MUCARDINAL , having discerned no corpus delicti in their actions . In addition to the reasoning given in the decision of DATE , the prosecutor referred to the applicant \u2019s statements of DATE ( see paragraph CARDINAL above ) . Further , the investigation had established that PERSON , whom the applicant had mentioned in his submissions , had only served at MUCARDINAL until DATE , after which he had been transferred to another unit . S. was questioned and refuted the applicant \u2019s allegations , as did officer PERSON , whom the applicant had accused of ill - treating him . The prosecutor also took note of the fact that the applicant had never complained during his medical examinations of any ill - treatment or bullying . Nor had those examinations revealed any injuries on him .","According to the Government , on DATE the above - mentioned decision was sent to the applicant \u2019s mother . According to the applicant and his mother , they became aware of the decision only from the ORG \u2019s observations on the case in the proceedings before the ORG .","On DATE the Dnipropetrovsk Military Prosecutor destroyed CARDINAL investigation files which had been opened in connection with various complaints dating DATE , as the time - limits for their storage had expired . The applicant \u2019s case was among them .","On an unspecified date in DATE the applicant \u2019s mother enquired with ORG as to whether the applicant could use its medical facilities free of charge , given that he had become disabled during his mandatory military service .","On DATE ORG Deputy Chief of ORG replied in the negative . He explained that while the legislation provided for such privileges as free use of ORG medical establishments , the applicant was not eligible because \u201c [ his ] disability did not result from a wound , a contusion , maiming , or a disease related to the discharge of military service duties , but was caused by a disease related to the performance of his military service . \u201d","On DATE the applicant lodged an administrative claim against MUCARDINAL with ORG ( \u201c the ORG \u201d ) , seeking compensation for damage caused by his disability , which he claimed had resulted from his ill - treatment in the army . He claimed a lump sum of ORG CARDINAL,CARDINAL in compensation for lost income , a DATE disability allowance of UAH CARDINAL , and an additional DATE allowance of LAW for his medical expenses .","On DATE ORG rejected the applicant \u2019s claim , finding that he had already received all payments he was entitled to .","On DATE ORG upheld that judgment . It noted that the applicant was receiving a disability pension and that he had already received an insurance payment due to him ( UAH CARDINAL,CARDINAL ) .","On DATE ORG upheld the lower courts\u2019 decisions .","The relevant provisions of the LAW read as follows :","\u201c The human being , his or her life and health , honour and dignity , inviolability and security are recognised in GPE as having the highest social value . ... \u201d","\u201c Everyone has the right to respect for his or her dignity .","No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... \u201d","According to LAW of LAW CARDINAL , the activities of the armed forces shall be based , in particular , on the principles of the rule of law , lawfulness , respect for humanity , and respect for the individual and his or her constitutional rights and freedoms .","In her Report DATE , ORG Commissioner for ORG dedicated a separate chapter to the issues of \u201c respect for human rights in the armed forces of GPE and other military establishments \u201d , in which she condemned the widespread phenomena of bullying and ill - treatment in the army ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97655","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2010,"docname":"TASDEMIR v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE . He was serving a sentence in FAC when the application was lodged .","On DATE , to celebrate World Peace day , the applicant participated in a demonstration in the district of GPE in GPE , outside the building that housed the DEHAP ( ORG ) . During the demonstration someone read out a press statement and the crowd , including the applicant , shouted slogans .","Subsequently , criminal proceedings were initiated against the applicant and CARDINAL other accused persons , pursuant to LAW , for praising a criminal and a crime . In the indictment , the prosecution stated that the applicant had shouted \u201c ORG , ORG cepheye misillemeye \u201d ( Long live Apo ! ORG ( the armed wing of the ORG ) to the front line in retaliation ! ) .","During the proceedings , the court took into consideration the defence statements of the accused , as well as CD recordings and photographs taken during the demonstration . Before the court , the applicant accepted that he was the person in the CD recording and the photograph . He further stated he had shouted slogans in support of peace .","In a final decision dated DATE , ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The court then commuted the prison sentence to a fine of MONEY ( TRY ) ( equivalent to CARDINAL ) . As the applicant failed to pay the fine , he served his sentence of imprisonment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-91115","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF KAUCZOR v. POLAND","importance":3,"conclusion":"Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , PERSON Adam Kauczor , is a NORP national who was born in DATE and lives in Siemianowice \u015al\u0105skie .","On DATE the applicant was arrested . On DATE ORG ( S\u0105d Rejonowy ) remanded him in custody on suspicion of murder . That decision was upheld by ORG ( PERSON ) on DATE .","The applicant \u2019s pretrial detention was subsequently extended by ORG decisions of DATE , DATE ( upheld by ORG ( S\u0105d Apelacyjny ) on DATE ) , and DATE .","Meanwhile , on DATE the applicant was indicted for murder and illegal possession of weapons . The Prosecutor requested that CARDINAL witnesses be heard by the trial court and the testimonies of a further QUANTITY witnesses be read out at the trial .","The first hearing was scheduled on DATE . It was adjourned , however , due to the absence of a key witness .","Subsequently the court held QUANTITY hearings . CARDINAL hearings were cancelled or adjourned either because of the absence of the applicant \u2019s counsel or summoned witnesses , or because of the illness of a judge .","On DATE ORG decided to extend the applicant \u2019s detention until DATE . However that decision was changed by ORG decision of DATE . ORG agreed to continue the applicant \u2019s detention , but only until DATE . It was held that the firstinstance court was no longer competent to extend the preventive measure , since the length of the applicant \u2019s detention was about to reach the statutory DATE timelimit laid down in Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure ( Kodeks post\u0119powania karnego ) .","DATE the court held a hearing DATE .","During this time , the applicant \u2019s detention was extended by ORG decisions of DATE ( confirmed by the same court on DATE ) , CARDINAL DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) .","On DATE the applicant \u2019s trial commenced de novo because the judge rapporteur had retired .","The first hearing scheduled on DATE was adjourned due to the absence of a key witness and CARDINAL of the lay judges .","From DATE until midCARDINAL the court held on average CARDINAL hearing per month .","On DATE the President of the Criminal Section ( przewodnicz\u0105cy wydzia\u0142u ) ordered that hearings be scheduled more often than once a month .","In DATE the court scheduled CARDINAL hearings , of which CARDINAL did not take place . It appears that DATE the court scheduled QUANTITY hearings .","Meanwhile , the applicant \u2019s detention was extended by ORG decisions of DATE ( upheld on DATE ) , CARDINAL DATE ( upheld on CARDINAL DATE ) , CARDINAL DATE ( upheld on DATE ) , CARDINAL DATE ( upheld on DATE ) , CARDINAL DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , DATE ( upheld on DATE ) , and CARDINAL DATE .","The domestic courts justified the applicant \u2019s pretrial detention in its initial phase by the existence of strong evidence against the applicant and the likelihood that a severe penalty would be imposed , as well as by the need to secure the proper course of the proceedings . The latter was derived from the fact that there was a suspicion that the applicant had been aided in committing the offence charged and that the alleged accomplices were being sought by the authorities . During that time numerous witnesses were heard and an identification parade was held .","At the later stage of the applicant \u2019s detention , the authorities relied on the complexity of the case as the reason for extending the measure . It was also emphasised that many of the scheduled court hearings did not take place for various objective reasons , such as the illness of a judge , the applicant \u2019s request for the withdrawal of a judge , the absence of witnesses or of the applicant himself , as well as difficulties in obtaining the report of ballisticforensic experts as requested by the applicant at an advanced stage of the proceedings .","On DATE ORG decided to lift the preventive measure and to release the applicant . On an unspecified date that decision was upheld by ORG .","The case is currently pending before ORG as the court of first instance .","On an unspecified date in DATE the applicant lodged a complaint about unreasonable length of proceedings under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) .","On DATE ORG dismissed the complaint . Although the court examined the entire length of the proceedings , it held that there had been no inactivity or undue delay on the part of the relevant court . It was observed that until DATE the court had been dealing with the case speedily and there had been no periods of inactivity . It was acknowledged that the proceedings had been obstructed when the case had had to be opened de novo and a new judge rapporteur had had to be assigned . The court emphasised that from DATE until DATE over CARDINAL hearings had been scheduled . The fact that some of them were cancelled was attributable to objective factors such as the absence of a lay judge , illness of a presiding judge or absence of the applicant \u2019s lawyer . Finally , it was pointed out that the case was of a complex nature and , moreover , that the applicant himself had contributed to the delay because of his multiple requests for new evidence to be admitted .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines pre - trial detention ( aresztowanie tymczasowe ) CARDINAL of the so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . The other measures are bail ( por\u0119czenie maj\u0105tkowe ) , police supervision ( doz\u00f3r policji ) , guarantee by a responsible person ( por\u0119czenie osoby godnej zaufania ) , guarantee by a social entity ( por\u0119czenie spo\u0142eczne ) , temporary ban on engaging in a given activity ( zawieszenie oskar\u017conego w okre\u015blonej dzia\u0142alno\u015bci ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .","Article CARDINAL \u00a7 CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :","\u201c Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused \u2019s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . \u201d","Article CARDINAL lists grounds for pre - trial detention . It provides , in so far as relevant :","\u201c CARDINAL . Pre - trial detention may be imposed if :","( 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 when he has no permanent abode [ in GPE ] ;","( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or codefendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;","NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years\u2019 imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . \u201d","The provisions on pre - trial detention are based on the precept that pretrial detention , the most extreme among the preventive measures , should not be imposed if more lenient measures are adequate .","Article CARDINAL reads , in so far as relevant :","\u201c CARDINAL . Pre - trial detention shall not be imposed if another preventive measure is sufficient . \u201d","Article CARDINAL \u00a7 CARDINAL reads :","\u201c CARDINAL . If there are no special reasons to the contrary , pre - trial detention shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d","Article CARDINAL \u00a7 CARDINAL provides :","\u201c Pre - trial detention shall not be imposed if an offence attracts a penalty of imprisonment not exceeding DATE . \u201d","Article CARDINAL \u00a7 CARDINAL specifies that the rule provided for in LAW is not applicable when the accused is attempting to evade justice , when he persistently fails to comply with summonses or when his identity can not be established .","A more detailed description of the relevant domestic law and judicial practice concerning the imposition of pre - trial detention , the grounds for its extension , release from detention and rules governing other \u201c preventive measures \u201d are stated in the ORG \u2019s judgments in the cases of ORG v. GPE , no . GPE , \u00a7 \u00a7 DATE , DATE and PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE .","On DATE the NORP Constitutional Court , having examined jointly CARDINAL constitutional complaints ( skarga konstytucyjna ) lodged by former detainees , declared Article CARDINAL \u00a7 CARDINAL of LAW unconstitutional in so far as it related to the investigation stage of criminal proceedings ( No . ORG CARDINAL\/CARDINAL ) . The provision in question provided that the detention measure might be extended beyond DATE if the pretrial proceedings could not have been completed because of \u201c important obstacles \u201d which could not have been overcome . The provision in question did not set any statutory time - limit for extending the detention measure . ORG considered that the impugned provision , by its imprecise and broad wording , could lead to arbitrary decisions of the courts on pre - trial detention and thus , infringe the very essence of constitutional rights and freedoms .","ORG ruled that the unconstitutional provision was to be repealed within DATE from the date of the publication of the judgment in ORG ) .","As a result of ORG judgment , LAW was amended as follows :","\u201c The pre - trial detention shall be extended beyond the period specified in DATE and DATE , only by the court of appeal in whose jurisdiction the proceedings are conducted , upon a motion from the court before which the case is pending , and at the investigation stage , upon a motion from the appellate prosecuting authorities . This can be done if deemed necessary in connection with a suspension of criminal proceedings , in connection with actions aiming at establishing or confirming the identity of the accused , prolonged psychiatric observation of the accused , prolonged preparation of an opinion of an expert , conducting evidentiary action in a particularly intricate case or conducting them abroad , or intentional protraction of proceedings by the accused . \u201d","However , a new provision was added in \u00a7 CARDINAL(a ) of Article CARDINAL :","\u201c The court of appeal , in whose jurisdiction the proceedings are being conducted may also , on a motion from the court before which the case is pending , order the extension of the detention on remand for a fixed period , exceeding that specified in paragraph CARDINAL , because of other important obstacles whose removal has not been possible \u201d .","The above amendment was adopted on DATE and entered into force on DATE ( Journal of Laws of DATE , No . CARDINAL , item CARDINAL ) .","In the framework of the procedure before ORG ( see paragraph CARDINAL below ) the NORP Government supplied statistical data concerning the number and the length of pre - trial detentions ordered in DATE by the domestic courts .","According to these statistics , in DATE the total number of cases in which pre - trial detention was ordered by regional courts amounted to CARDINAL . That number comprised PERCENT of cases in which the measure lasted CARDINAL , and PERCENT of cases in which the measure exceeded DATE . In DATE the total number cases in which pre - trial detention was ordered by district courts was CARDINAL . It comprised PERCENT of cases in which the detention measure lasted TIME , and PERCENT of cases in which the measure exceeded DATE . District courts ordered pre - trial detention in CARDINAL cases in DATE and CARDINAL cases in DATE . In DATE , PERCENT of cases the detention measure lasted TIME and in PERCENT over DATE .","The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings , in particular the applicable provisions of DATE Act , are stated in the ORG \u2019s decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , \u00a7 \u00a7 CARDINAL , ORG CARDINALV and PERSON v. GPE no . CARDINAL ( dec . ) , ECHR CARDINALVIII , and its judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , ORG CARDINAL","In addition to new LAW ( see paragraph CARDINAL above ) new amendments , designed to streamline criminal proceedings , entered into force on DATE ( PERSON of DATE on amendments to LAW ; Journal of Laws of DATE , No . CARDINAL , item CARDINAL ; PERSON o zmianie ustawy - Kodeks post\u0119powania karnego oraz niekt\u00f3rych innych ustaw ) . Those amendments strengthened the powers of the authorities to discipline the participants .","In particular , newly added Article CARDINAL \u00a7 l ( a ) , which applies in the investigative and judicial phase of criminal proceedings , empowers a trial court to impose a fine of MONEY ( ORG ) on a defence counsel or a representative of a party who has failed to obey the summons of the authority conducting the proceedings or who , without the approval of the competent authority , has left the venue of the proceedings before they were completed .","A similar admonishing measure may be applied in respect of experts , witnesses , interpreters and other persons participating in the proceedings ( see among others , Articles CARDINAL \u00a7 CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL ( a ) ) .","In addition , new LAW entered into force on DATE . According to this provision it is sufficient if CARDINAL of the defence lawyers or representatives of a party ( who has CARDINAL defence lawyer or representative ) is present before the authority to proceed with the case .","Another amendment , preventing the obstruction of proceedings was introduced , to LAW . According to the new provision a trial court shall appoint ex officio a defence counsel if the accused has dismissed his lawyer or the lawyer himself has resigned and the accused has not appointed a new defence counsel . Previously , in such a situation , the court had to fix a time - limit for the accused to choose a new defence counsel and only after this time had lapsed , could the court act ex officio .","According to the information supplied by ORG to ORG ( see paragraph CARDINAL above and paragraph CARDINAL below ) , in addition the NORP trial courts and prosecution authorities have undertaken a series of practical measures in order to organise criminal proceedings in a more efficient manner , i.e. by scheduling time - limits for hearings well in advance , holding hearings on DATE or severing charges against co - accused to separate proceedings under LAW of LAW if the joint examination proves difficult and time - consuming .","On CARDINAL DATE ORG ( PERSON ) adopted the \u201c Plan of Actions of the Government for the execution of judgments of ORG in respect of GPE \u201d ( Program PERSON w sprawie wykonywania wyrok\u00f3w PERSON ) . By virtue of that document the Minister of ORG was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre - trial detention stemming from the LAW and the case - law of the ORG in NORP cases and to include this topic in the programmes of workshops and seminars for judges .","On DATE ORG adopted an Interim Resolution concerning the judgments of ORG in CARDINAL cases against GPE relating to the excessive length of detention on remand ( \u201c the DATE Resolution \u201d ) . It reads , in its relevant parts , as follows :","\u201c ... Having regard to the great number of judgments of the ORG finding GPE in violation of LAW , paragraph CARDINAL , of the Convention on account of the unreasonable length of detention on remand ( ... )","Recalling that the obligation of every state , under LAW , paragraph CARDINAL , of the LAW , to abide by the judgments of the ORG involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new , similar violations of the LAW ;","Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new , similar violations of the Convention ;","Taking note of the steps taken so far by the authorities to remedy the structural problems related to detention on remand in GPE ( ... )","Noting also that , although some courts have begun to refer to the Convention and ORG case - law in rendering decisions on the use of detention on remand , this preventive measure still seems often to be ordered without taking into consideration the ORG \u2019s requirements ;","Underlining that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which , notwithstanding the presumption of innocence , outweighs the rule of respect for individual liberty ;","Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence , although a condition sine qua non for the lawfulness of the continued detention , may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention ;","Noting that the number of cases in which ORG has found similar violations is constantly increasing ,","ENCOURAGES the NORP authorities , in view of the extent of the systemic problem concerning the excessive length of detention on remand :","- to continue to examine and adopt further measures to reduce the length of detention on remand , including possible legislative measures and the change of ORG practice in this respect , to be in line with the requirements set out in the Convention and ORG case - law ; and in particular","- to take appropriate awareness - raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure , including judges of criminal courts and prosecutors ;","- to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation , such as release on bail , obligation to report to the police or prohibition on leaving the country ;","- to establish a clear and efficient mechanism for evaluating the trend concerning the length of detention on remand ;","... \u201d","On DATE ORG Commissioner for Human Rights released the Memorandum to the NORP Government concerning , among other issues , the use of the detention measure in GPE . It reads , in its relevant parts , as follows :","\u201c CARDINAL . ORG has repeatedly found violations of LAW ( right of a person subject to pre - trial detention to be tried within a reasonable time ) in respect of GPE . Examples of cases brought to GPE where pre - trial detention has lasted DATE are not uncommon .","...","NORP The Commissioner urges the NORP authorities to review the application and functioning of pre - trial detention in NORP law . The training of judges and prosecutors as regards NORP standards and case - law of ORG is crucial . The general rule should be the release rather than the detention on remand and this message needs to be strongly underlined to national judges ... \u201d"],"violated_articles":["5","6"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75524","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2006,"docname":"VRYONIS v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , has NORP and NORP nationality . He was born in DATE and lives in GPE in GPE .","The applicant is the father of the child PERSON , born on DATE . The parents separated in DATE . Following police intervention , the applicant \u2019s wife and son found shelter in a women \u2019s refuge , were they stayed until DATE .","On DATE ORG ( Amtsgericht ) temporarily transferred parental custody to the child \u2019s mother . The applicant \u2019s appeals remained unsuccessful .","Since DATE the child attended kindergarten in PERSON .","Throughout the proceedings , the child remained with his mother ; until DATE the applicant had regular access to him .","In DATE , following a visit during the GPE holidays , the applicant returned DATE than agreed upon .","On DATE , following a weekend visit , the applicant refused to return PERSON to his mother . He took the child out of PERSON kindergarten and registered him at a kindergarten in GPE . On DATE , upon the mother \u2019s request , ORG ordered that the child be returned to his mother .","As difficulties arose when the applicant had to return the child following a visit on DATE , which necessitated intervention by a ORG officer , the applicant , allegedly upon ORG advice , temporarily suspended the visits .","On DATE the applicant attempted to visit his son . A conflict arose between the parents which culminated in police intervention .","On DATE the applicant , represented by counsel , filed a petition for divorce with ORG , acting in the capacity of a family court . At the same time , he requested that sole parental authority over PERSON should be transferred to him .","On DATE the applicant , in separate interim proceedings , requested ORG to grant him access rights .","On DATE ORG , in the proceedings on the applicant \u2019s access rights , ordered the psychological expert PERSON to prepare an expert opinion as to how parental authority and access rights should be distributed between the parents .","On DATE PERSON submitted his expert opinion . He found that both parents were in principle able and willing to raise PERSON The mother , however , had not been able to build up an unburdened relationship with her son . Her personality was characterised by introversion , emotional instability and inhibition , by a low capacity to build and stabilise human relationships and by low emphatic capacities ( geringe emotionale ORG . The applicant , on the other hand , had a more stable personality and was considerably better apt to treat PERSON with empathy and loving understanding . The expert further found that the applicant did not show any remarkable signs of aggressiveness . It followed that the applicant was better able to raise the child and to serve him as a role model . The expert concluded that both parents should be granted joint custody , that the child should live with the applicant and that the mother should be granted regular visiting rights .","On DATE the parents concluded a friendly settlement according to which the applicant was granted visiting rights DATE from TIME .","As difficulties arose when the applicant had to return the child following the next visit on DATE , the applicant , allegedly upon ORG advice , temporarily suspended the visits .","On DATE ORG , in the divorce proceedings , ordered the preparation of a fresh expert opinion as to the distribution of parental authority and access rights by the psychological expert PERSON","On DATE PERSON submitted her expert report . Having on several occasions heard and examined both parents and the child , the expert noted that the implementation of the applicant \u2019s access rights had failed because the applicant insisted on exercising these rights according to his own discretion , without accepting any rules . In this respect , the expert noted that the applicant wanted to fetch the boy at different times than agreed upon , that he refused to return him after visits and that he took him out of kindergarten and registered him in another one at his home place , without having parental authority . He further tried to discredit his wife . According to the expert , the applicant had been unable to realise that his behaviour was damaging his good relationship with his son . There was no indication that the mother influenced the child against him ; on the contrary , the fact that the child still expressed the wish to see his father indicated that such influence had not taken place .","The expert further noted that the mother was perfectly able to raise the child and that she tried to keep him as much as possible out of his GPE post - marital conflicts . She had demonstrated her ability to deal with everyday conflicts . The applicant \u2019s reproaches against her , which had culminated in the filing of criminal information , were unfounded . According to psychological tests and the mother \u2019s reports , PERSON did not show any psychological abnormalities . This too indicated that the mother was able to educate and encourage him in accordance with his age and his individual needs .","In so far as the mother was suspicious as to whether the applicant would abide by the agreements on visiting rights , this was justified by her previous experiences . The expert further found that the applicant had shown a high degree of aggressiveness . In so far as the expert PERSON had concluded that the applicant did not show any aggressive behaviour , his assessment had been based on psychological tests which had not been suitable for the purpose at hand . Finally , the expert expressed her doubts as to whether the applicant would be able to adequately deal with DATE problems in case the child \u2019s needs were opposed to his own interests .","The expert concluded that the child PERSON loved and needed both parents . However , having regard to the persisting conflicts between the parents and the fact that the applicant did not accept the mother as his equal , the granting of joint custody would be contrary to the child \u2019s best interests . She recommended that sole parental authority should be transferred to the mother . With regard to access rights , the expert noted that it would be in the child \u2019s interest to have regular contacts with his father . However , both PERSON and his mother would have to be assured that the applicant abided by the rules set up for such contacts . As long as the applicant insisted that the child should live with him , as long as he degraded the mother and as long as he did not change his behaviour with a view to a more constructive strategy aimed at solving conflicts , such visits would have to be supervised .","On DATE ORG , having heard both parents , the child and the experts PERSON and PERSON , issued the divorce decree , transferred sole parental authority to the child \u2019s mother and temporarily suspended the applicant \u2019s access rights . ORG noted , firstly , that neither of the parents was willing to accept joint parental authority . Having regard to the development of the GPE conflicts , which had not diminished in spite of the long period of separation , it would be contrary to the child \u2019s best interests to award joint custody . This had not been contrary to the finding of the first expert PERSON , who had favoured joint custody . In this respect , ORG noted that PERSON \u2019s expert opinion had been DATE and that PERSON himself , in a supplementary statement dated DATE , had declared that joint custody had to be excluded with a view to the subsequent developments . Furthermore , the expert had expressly declared that his expert opinion was \u201c outdated \u201d and that changed circumstances warranted a fresh examination .","ORG found that it was in the child \u2019s best interest to transfer parental authority to the mother . The applicant was not able to properly raise the child . Following the expert PERSON opinion , that court found that the applicant was not able to adequately deal with DATE problems in case the child \u2019s needs were opposed to the applicant \u2019s own interests . Furthermore , the child \u2019s well - being was jeopardised by the applicant \u2019s aggressive impulses and by the fact that the applicant did not accept the child \u2019s mother as his equal , but tried to debase her .","The child \u2019s mother , on the other hand , had proved that she was able to raise the child and that she had developed strategies to solve conflicts of DATE life . As established by the expert , she had succeeded in keeping PERSON out of his GPE conflicts and to preserve the positive image he had of his father . Insofar as PERSON appeared to be shy and aggrieved when heard by the court , this had to be explained by the fact that the child was torn into the conflict between his parents and that he had to take sides between CARDINAL persons whom he both loved . There was no indication that the child had been negatively influenced against his father , otherwise he would not have declared that he wished to have contact with him . This finding was not contrary to the conclusions drawn by expert PERSON , as the latter had conceded that his report had to be updated as the GPE personal circumstances had changed in the meantime . ORG could not follow the expert PERSON \u2019s finding that the applicant did no show any signs of aggressive behaviour . In this respect , it pointed out that in DATE , the lease of the applicant \u2019s flat had been terminated on the ground that the applicant had attacked the lessor \u2019s wife . In separate proceedings , the director of the women \u2019s refuge where PERSON \u2019s mother temporarily found shelter had given testimony on the applicant \u2019s aggressive behaviour . ORG noted that these findings were in line with the finding of the expert PERSON , who attested the applicant violent impulses .","ORG further decided to temporarily suspend the applicant \u2019s access rights pursuant to section DATE of LAW ( B\u00fcrgerliches Gesetzbuch , see relevant domestic law below ) . It acknowledged that the child had a strong relationship to his father and that it would be desirable to grant regular contacts . This , however , was not possible at the present time . In this respect ORG noted , firstly , that the applicant \u2019s contacts with his child led to serious conflicts which necessitated police intervention . Referring to the expert PERSON \u2019s finding , ORG found that access rights could only be granted if the child could be assured that the applicant abided by the rules . As long as the applicant insisted on taking PERSON with him to GPE and did not accept any differing decisions DATE including court orders \u2013 such visits would have to be supervised . Such supervision was presently not possible as the applicant was not willing to accept any person as a supervisor , who did not completely meet his own expectations and who did not act accordingly . ORG could not act as a supervisor in the present case due to serious tensions between the applicant and ORG . The applicant had lodged petitions for administrative and criminal review against ORG . Accordingly , the latter had refused to act as a supervisor in the applicant \u2019s case . Another possible supervisor , PERSON , was only willing to supervise visiting contacts if both parents agreed to this . During the court hearing , ORG had phoned PERSON in order to render visits possible . These endeavours failed , firstly , because the applicant was not willing to bear the costs entailed by supervision . Furthermore , the mother only agreed to commission PERSON in case the applicant accepted that the child remained with her until a final court decision . The applicant had not been willing to make such a declaration . That the mother \u2019s fears were not unfounded was demonstrated by the fact that the applicant had refused to return the child in DATE . There were no other persons available who could supervise visiting contacts . In any event , the problem would persist as the applicant was not willing to bear the necessary expenses .","On DATE the ORG ( Oberlandesgericht ) rejected the applicant \u2019s appeal against ORG decisions on parental authority and on the temporary exclusion of access rights . ORG followed ORG reasoning , according to which the serious tensions persisting between the parents excluded the possibility of joint custody . With regard to the transfer of parental custody to CARDINAL parent , ORG left the question undecided whether the applicant was sufficiently able to raise the child on a DATE basis , as the mother had proved to be . The transfer of custody to the mother was in accordance with the wishes the child had expressed when heard by the expert and by the court . The most decisive point was that the transfer of custody to the mother gave continuity to the child \u2019s present life and educational circumstances . A change of the child \u2019s present life circumstances which would be added to the psychological burden which had already been imposed on him by his GPE separation could only be justified if such change was compensated by considerable advantages for the child . Such advantages could not be found in the present case . Following the expert PERSON opinion , that court found that the child was well taken care of by his mother . It was not necessary to determine whether the finding of the expert PERSON had been scientifically correct , as they dated back to DATE and the decision had to be taken according to the current circumstances . The expert PERSON did not claim that his findings were still valid . He had , on the contrary , stated that PERSON recommendations may be correct for the time of her examination . The issue which parent was more ready to accept the child \u2019s relationship with the other parent ( ORG ) clearly pointed in favour of the mother . This was established by the expert PERSON findings as well as by the applicant \u2019s unfounded allegations during custody and access proceedings , who had reproached the mother of \u201c brainwashing \u201d and abusing the child . The fact that the child had looked forward to meet his father disproved the allegations that the mother had influenced the child against him .","With respect to the decision on the temporary exclusion of access rights , ORG confirmed ORG finding that unattended visits could not be granted as long as the applicant did not respect the rules set up for such meetings . Supervised visits were currently not feasible as the applicant refused to cooperate . ORG noted that ORG could not supervise meetings , as the applicant did not accept ORG staff and that ORG had consequently refused to undertake that task . ORG further noted that ORG , in its hearing of CARDINAL DATE , had tried to arrange supervised visits . These endeavours had failed inter alia because the applicant had been unwilling to bear the necessary expenses , in spite of being legally obliged to do so . The applicant had not changed his attitude during second instance proceedings .","On DATE ORG ( Bundesverfassungsgericht ) refused to accept the applicant \u2019s constitutional complaint and joint request for an interim order for adjudication .","The relevant provisions of LAW ( ORG ) read as follows :","Section DATE","Living separately and joint parental authority","\u201c ( CARDINAL ) If parents who share joint parental authority are separated more than temporarily , each parent can request the family court to be transferred either sole parental authority or part of the parental authority .","( CARDINAL ) The request shall be granted if","the other parent consents , unless the child is DATE and is opposed to the transfer , or","if it is to be expected that the lifting of joint parental authority and its transfer to the applicant is best suited to serve the child \u2019s welfare","... \u201d","Section DATE","Contacts between parent and child","\u201c ( CARDINAL ) The child is entitled to have access to both parents ; each parent is obliged to have contact with , and is entitled to have access to the child .","( CARDINAL ) The parents must not do anything that would harm the child \u2019s relationship with the other parent or interfere with the child \u2019s upbringing ...","( CARDINAL ) The family courts can determine the scope of the right of access and can prescribe more specific rules for its exercise , also with regard to third parties . They may oblige the respective parties to fulfil their obligations under paragraph CARDINAL .","( CARDINAL ) The family court can restrict or suspend access rights or the execution of previous decisions on access if such a measure is necessary for the child \u2019s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child \u2019s well - being would be endangered . The family courts may order that the right of access be exercised under the supervision of a third party . Such a third party may be a ORG or a private association ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-111343","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2012,"docname":"OSORIO v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant , Mr PERSON , is a NORP national who was born in GPE , GPE on DATE and lives in PERSON . He was represented before the ORG by PERSON , from GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant came to GPE as a refugee in DATE . In DATE , after a routine operation , he started to suffer from severe pain . This pain was treated by strong pain killers which allegedly caused him to suffer brain damage . He was able to recover and to work in a boat factory for a while in DATE and DATE . In DATE , however , he again became unable to work and started to receive sickness allowance ( sjukpenning ) , which was later transformed into an early retirement pension ( f\u00f6rtidspension ) as of DATE .","The applicant applied for life annuity ( livr\u00e4nta ) from ORG ( f\u00f6rs\u00e4kringskassan ) in GPE , claiming that his injuries had been caused by solvents to which he was exposed while working in the boat factory .","On DATE ORG decided to refuse the application for life annuity as the applicant \u2019s brain damage could not be considered a work - related accident or a condition caused by the working environment . According to the medical opinion given on DATE by PERSON , ORG own medical doctor ( f\u00f6rs\u00e4kringsl\u00e4kare ) , it was not probable that the applicant \u2019s brain damage was connected to his work .","By letter dated DATE the applicant appealed to ORG ( l\u00e4nsr\u00e4tten ) in GPE , claiming that he had a right to life annuity . He stated that he had been more sensitive to chemicals due to his prior brain damage in DATE . The applicant submitted a document by D , a professor in procedural law , entitled \u201c Statement concerning the evidentiary requirements in work injury cases in general , with the case of [ M.B. ] as an example \u201d . The applicant reserved the right to request that D be heard as an expert witness . He submitted written evidence , mainly articles from medical journals , and requested that this evidence be sent to D for comments .","On DATE ORG , which interpreted the applicant \u2019s request as a request for a written expert opinion , rejected the applicant \u2019s request to obtain a statement from NORP The applicant was provided with the opportunity to complete his appeal within DATE .","On DATE the applicant requested that an oral hearing be held without giving any reasons for his request . ORG offered the applicant the opportunity to finalise his submissions and to submit all evidence he wished to invoke . The applicant was also informed that the court would then decide on his request for an oral hearing . Furthermore , the applicant was informed about the applicable legislation concerning oral hearings and was asked to indicate whether he maintained his request .","On DATE the applicant submitted his evidence to ORG . He did not invoke any oral evidence or comments on the issue of an oral hearing .","On DATE ORG rejected the applicant \u2019s request to obtain a written opinion from NORP , the request for an oral hearing and the applicant \u2019s appeal . After having examined several medical certificates and opinions , included in the applicant \u2019s case file and submitted by both parties , the court found that the medical evidence did not show that the applicant was more sensitive to solvents or that such shortterm work with solvents would have exposed him to brain damage such as he had suffered . His condition could thus not be considered as a work - related condition and he had therefore no right to life annuity .","On DATE the applicant appealed to ORG ( kammarr\u00e4tten ) in GPE and maintained what he had claimed before the first instance court . Additionally , he stated that he had invoked oral evidence before the first instance court and claimed that the rejection of his request for an oral hearing constituted a violation of his rights under the Convention . Furthermore , the applicant requested an oral hearing to be held . On DATE the applicant was offered the opportunity to complete his appeal . He was reminded that the issue of whether to grant leave to appeal could be decided even if he did not complete his appeal . He was also informed that his request concerning an oral hearing would not be determined before the issue of leave to appeal . In a submission of CARDINAL DATE the applicant confirmed that he did not request an oral hearing on the question of leave to appeal . He stated that the reasons for his request for an oral hearing concerning the factual issues were complex , that an oral hearing was not unnecessary and that there was no reason not to hold an oral hearing .","On DATE ORG refused leave to appeal .","By letter dated DATE the applicant appealed to ORG ( Regeringsr\u00e4tten ) , reiterating the grounds of appeal already presented before the lower instances , claiming compensation and requesting the court to hold an oral hearing . The applicant stated that he had been refused an oral hearing before the lower courts and that ORG had also rejected his request to hear an expert witness . He maintained that his case was complex and important and that , for these reasons , he had a right to an oral hearing .","On DATE the applicant was informed that ORG would , first of all , examine whether leave to appeal should be granted and that it had understood his request for an oral hearing to be related to the substance of the case . The applicant was given the opportunity to comment on both issues and to complete his appeal . On DATE the applicant requested once again that an oral hearing be held without clarifying whether it concerned the issue of leave to appeal or the substance of the case .","On DATE ORG rejected the applicant \u2019s request for an oral hearing regarding the issue of leave to appeal and gave the applicant the opportunity to finalise his submissions .","On DATE the applicant completed his appeal and requested that an oral hearing be held with reference to his previous requests .","On DATE ORG refused leave to appeal .","Domestic provisions of relevance in the present case are found in DATE Insurance Act ( Lagen om arbetsskadef\u00f6rs\u00e4kring , SFS CARDINAL:CARDINAL ) and ORG ( F\u00f6rvaltnings - processlagen , ORG CARDINAL:CARDINAL , \u201c the DATE LAW ) . The DATE LAW has been incorporated into Chapters CARDINAL and CARDINAL of ORG as of DATE .","According to LAW , section CARDINAL , of the DATE LAW , the term \u201c work injury \u201d mainly refers to injuries resulting from accidents or other harmful factors at a person \u2019s workplace . Under the LAW , all gainfully employed persons working in GPE are insured against work injuries .","For an injury to qualify as a work injury , a causal link must be established between the accident or harmful factor in the workplace and the insured person \u2019s health problems . What is meant by \u201c harmful factor \u201d is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person . At the relevant time , it had to be \u201c highly probable \u201d that a certain factor in the working environment could cause a person \u2019s injuries and , thereby , be considered to constitute a harmful factor . The view that a certain factor is very likely to cause an injury has to be relatively generally accepted ( Govt . PERSON , pp . CARDINAL and DATE ) . This is the case where substantial knowledge exists , within medical or other science , that a certain factor has such harmful effect . If there is a lack of such support , such as , for example , profound differences in expert opinion , this requirement can not be considered fulfilled . Thus , the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effect .","Section CARDINAL of the CARDINAL LAW , as in force at the relevant time , was worded as follows :","\u201c The procedure shall be in writing .","Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case , the processing may include an oral hearing regarding certain issues .","In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . \u201d","In a case concerning social insurance , leave to appeal was required for ORG to consider an appeal against a decision enacted by ORG . Leave to appeal was to be granted if it was of importance for the guidance of the application of law that a superior court consider the appeal , if reason existed for amendment of ORG conclusion , or if there were otherwise extraordinary reasons to entertain the appeal .","A decision of ORG not to grant leave to appeal could be appealed against to ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5462","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2000,"docname":"\u00dcNVER v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national , born in DATE and living in GPE ( GPE ) and GPE ( GPE ) . He is represented before the ORG by PERSON PERSON , a lawyer practising in Antalya(Turkey ) .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant owns a CARDINAL - story house on a hill overlooking the south coast of GPE . At the time when he had his house built , the south coast was officially designated a conservation area ( do\u011fal sit alan\u0131 ) . According to the local master building and settlement plan ( imar plan\u0131 ) , no building was authorised in this area . In DATE ORG revised the master plan in order to allow homes to be built . Subsequently , property developers were given building permits ( in\u015faat ruhsat\u0131 ) and undertook major building works in the area . As a result , the natural panorama of the south coast began to change rapidly .","In DATE the applicant twice complained to GPE requesting that development be halted with immediate effect . In reply , GPE informed the applicant that the master plan had been revised on DATE and DATE and that several developers had been granted construction permits pursuant to the revision .","The applicant challenged the award of the building permits before ORG ( PERSON ) . He contended that the revision of the master plan did not comply with the requirements prescribed by PERSON no . CARDINAL and that the presence of the buildings would deprive him of his right to the peaceful enjoyment of the panoramic view from his house . He further contended that the preservation of the natural beauty of the site was in \u201c the public interest \u201d and the planned high buildings did not meet safety requirements for geographical reasons . He requested the annulment of the building permits awarded to the developers . He also requested the court to order the administration to suspend ( y\u00fcr\u00fctmenin durdurulmas\u0131 ) the building permits pending the outcome of the court \u2019s final decision on the matter .","On DATE and CARDINAL DATE the court ordered the administration to stay the execution of the building permits . These decisions were served on the administration on CARDINAL DATE and DATE respectively . The court noted that any further construction carried out on the basis of the permits could give rise to irreparable harm .","On DATE and CARDINAL DATE the applicant \u2019s lawyer requested ORG and ORG to comply with the order . The municipalities neither suspended the building permits nor prevented the holders from continuing to build .","Experts appointed by the court ( bilirki\u015fi ) investigated the area and submitted a report which generally bore out the applicant \u2019s allegations . On DATE ORG found , inter alia , that the revision of the local master construction and settlement plan was not in accordance with relevant law and was not in the public interest ( kamu yarar\u0131 ) . The court also found that building permits did not comply with the revised master plan . The court accordingly annulled the revision of the master plan as well as all building permits awarded on the basis of the revised plan .","ORG and LOC appealed ( temyiz ) on the ground that the judgment was contrary to substantive and procedural law .","On DATE the CARDINALth Chamber of ORG ( NORP ) upheld the judgment of DATE of ORG . ORG and LOC requested the rectification of the judgment ( karar d\u00fczeltme ) of ORG . The request was rejected on DATE .","De facto construction continued in the area even after the annulment of the building permits had become final . The applicant , with reference to the final court judgment , requested ORG and GPE to stop the building being carried out by the holders of the annulled permits and to demolish the existing buildings in the area . The municipalities failed to comply with the request . The applicant then complained to various ORG institutions inter alia , ORG , ORG , ORG , and ORG responsible for urban issues . He did not receive any clear response . The impugned buildings remain to DATE .","B. Relevant domestic law","Article CARDINAL of the LAW provides in its fourth paragraph ( unofficial translation ) :","\u201c Legislative and executive organs and the administration shall comply with court decisions . These organs and the administration shall neither alter them in any respect nor delay their execution . \u201d","LAW states ( unofficial translation ) :","\u201c The administration shall comply with the decisions of ORG , district administrative courts , administrative and tax courts . The administration shall ensure the execution of such decisions within DATE from the date of their notification . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99907","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF D.B. v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-1 and 5-4;Violation of Art. 34;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["NORP The applicant was born in DATE and , at the time of lodging his application , he was being held in the Edirne Foreigners ' Admission and ORG in GPE .","The applicant was an active member of ORG of GPE and the NORP and ORG in GPE . He was also on the board of editors of a well - known student journal .","According to the applicant 's submissions , on Students ' Day in GPE in DATE , which was held DATE by university students across the country , CARDINAL students were arrested and placed in solitary confinement in FAC , in GPE . Other members of the board of editors of the student journal that the applicant worked for were among those who were arrested . Subsequently , more students were arrested and imprisoned during the crackdown on students .","On an unspecified date in DATE , the applicant arrived illegally in GPE .","On DATE the applicant was arrested by NORP security forces while trying to leave GPE illegally . He was subsequently placed in the Edirne Foreigners ' Admission and ORG .","On DATE the applicant lodged an application for temporary asylum with ORG ( the \u201c Ministry \u201d ) .","On DATE the applicant 's request was rejected . According to a letter addressed to the PERSON governor 's office by the Deputy Under- Secretary of ORG , the applicant had stated that he had been involved in the same activities as a certain PERSON , an NORP national who had been deported to GPE on QUANTITY DATE since his presence in GPE constituted a risk for national security . The Deputy Under - Secretary maintained that the applicant 's request had been rejected for the same reason and that this type of person should be not granted temporary asylum in general . He also requested that ORG High Commissioner for Refugees ( ORG ) should not be informed of these facts and that their access to this information should be restricted on national security considerations . The Deputy Under - Secretary finally requested the PERSON governor 's office to notify the applicant of the decision taken in his case and to inform him that he could lodge an objection within DATE against this decision .","On DATE the applicant was served with the decision rejecting his temporary asylum request and was informed that , unless he lodged an objection within DATE , he would be deported to his home country .","On DATE the applicant lodged , with the PERSON governor 's office , a petition written in NORP containing his objection against the decision rejecting his temporary asylum request .","On DATE the applicant made statements to QUANTITY police officers in the presence of an interpreter . He maintained that he was an active member of ORG of GPE and the NORP and ORG . He noted that he had participated in a number of demonstrations held by these organisations and that he had digital photographs of these demonstrations in his possession . He stated that he had left GPE subsequent to the arrest and imprisonment of his friends , who had been involved in the same activities on behalf of those organisations . He asked the NORP authorities to contact the office of the ORG , his lawyer and a national non - governmental organisation , ORG , in order to receive documents and detailed information regarding his activities in GPE .","On DATE his objection was rejected by ORG . According to the official documents , ORG considered that , in the light of the applicant 's militant background , there was a real risk that he would be taken to GPE where he would have military training and that he would be part of military operations targeting GPE .","On DATE the applicant was interviewed by officers from the ORG 's GPE office while he was being held by the NORP authorities . On DATE the applicant was granted refugee status under the ORG 's mandate .","Following his placement in the Edirne Foreigners ' Admission and Accommodation Centre , CARDINAL , the applicant went on a hunger strike in protest against his detention and the refusal of the authorities to allow him to have access to the temporary asylum system . He further alleged that he had been kept in solitary confinement in LOC and that he had attempted to commit suicide there .","On DATE the applicant was transferred to the K\u0131rklareli Foreigners ' Admission and ORG . He alleged that his solitary confinement had continued in this ORG .","On DATE following his visit to the ORG and his meeting with the applicant , Mr PERSON reported that the applicant had alleged that he was being detained alone in a cell . The lawyer had then asked a police officer about the conditions in the cell where the applicant was held . The police officer responded that the cell had a toilet and shower in it . The applicant had also told the lawyer that he had not been subjected to ill - treatment and that he did not need to see a psychologist or a psychiatrist .","On DATE ORG ) , a human rights organisation based in GPE , made a visit in order to observe the living conditions in the ORG . According to this organisation 's report , they were not allowed by the ORG 's administration to visit the inside of the FAC where foreign nationals were held or to hold a meeting with the applicant . The officers orally informed them that ORG had sent them written instructions to restrict access to the applicant . However , they did not wish to show PERSON the document in question . PERSON reported that other persons held in the FAC maintained that they did not know that the applicant had been held in FAC a very long time . Subsequently , they learned that the applicant was kept separately from them . According to the report , the ORG 's administration did not allow the applicant , who was suffering psychologically , to talk with any other detainee . Nor was he authorised to hold a meeting with the representatives of the ORG .","The Government submitted that the applicant was held in the K\u0131rklareli Foreigners ' Admission and ORG , which was not a prison or detention centre . Therefore , there were no prison cells or sections where the applicant could be kept in solitary confinement ; neither was there any instruction to that effect .","On DATE the applicant 's representative lodged petitions with the GPE police headquarters and the department responsible for foreigners , borders and asylum attached to ORG . The applicant 's representative noted , in his petition , that ORG had accepted the applicant within the refugee quota for GPE and that an aeroplane ticket to GPE was booked for the applicant for CARDINAL DATE . He requested the administrative authorities to secure the applicant 's release with a view to facilitating the applicant 's departure from GPE .","On an unspecified date the applicant 's representative further lodged an application with ORG for the applicant 's release .","On DATE ORG dismissed the case , holding that the applicant 's representative had failed to attach the documents relevant to his petition , such as those demonstrating that he had already applied to the administrative authorities and that the latter had rejected his requests . The court asked the applicant 's representative to renew his request in the light of the content of its decision within DATE .","On DATE ORG upheld the decision of DATE .","On DATE the applicant 's representative renewed his request before ORG .","On DATE ORG decided to request the office of the ORG to submit information regarding the applicant . In particular , the documents showing the Government of GPE 's decision to grant the applicant refugee status , the documents relating to the interim measure indicated by the ORG and a copy of the case file were requested from the office of the ORG .","On DATE ORG ordered the applicant 's release from the ORG . In its judgment , ORG took into account the applicant 's status as a refugee under the ORG mandate and the fact that ORG had accepted the applicant within the refugee quota . It therefore decided to release the applicant with a view to his transfer to GPE .","By a letter dated DATE , the Government informed the ORG that on DATE the applicant had escaped . They explained that the applicant had fled from the GPE police headquarters where he had been taken in order for him to receive a wire transfer . The Government maintained that the applicant was not apprehended despite the arrest warrant issued by the GPE police following his escape .","By a letter dated DATE , the applicant 's representative informed the ORG that , upon his and the ORG 's request , on that date the applicant had surrendered to the police in order to be released from the ORG Admission and ORG in accordance with ORG decision of DATE .","On DATE the Government and the applicant 's representative informed the ORG that the applicant had been released from ORG and ORG on DATE . The ORG further noted that the applicant had been granted a residence permit for DATE pending his departure to GPE . The applicant 's representative noted that an aeroplane ticket to GPE was booked for the applicant for DATE .","On DATE the applicant 's representative and the Government informed the ORG respectively that the applicant had left GPE on DATE and arrived in GPE where he was granted refugee status .","A description of the relevant domestic law and practice can be found in GPE and GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) ."],"violated_articles":["34","5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90179","languageisocode":"ENG","respondent":"BIH","branch":"CHAMBER","date":2008,"docname":"CASE OF KUDIC v. BOSNIA AND HERZEGOVINA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants were born in DATE and DATE respectively and live in Biha\u0107 .","Prior to the dissolution of the former ORG ( \u201c the SFRY \u201d ) the applicants deposited foreign currency in their bank accounts at the GPE banka PERSON filijala Biha\u0107 . In GPE , as well as in other successor GPE of the former SFRY , such savings are commonly referred to as \u201c old \u201d foreign - currency savings ( for the relevant background information see GPE v. GPE DATE . ) , no . CARDINAL , ORG CARDINAL- ... ) .","Following several unsuccessful attempts to withdraw their funds , the applicants initiated court proceedings seeking the recovery of their entire \u201c old \u201d foreign - currency savings and accrued interest .","By a decision of ORG of DATE , the GPE banka PERSON filijala PERSON was ordered to pay the applicants MONEY ( DEM ) , MONEY , MONEY , MONEY , MONEY , MONEY , MONEY and MONEY , default interest on the above amounts at the rate applicable to overnight deposits from private individuals from DATE and legal costs in the amount of DEM CARDINAL,CARDINAL . The judgment entered into force on DATE .","On DATE ORG issued a writ of execution ( rje\u0161enje o izvr\u0161enju ) . The execution proceedings were effectively stayed DATE and DATE .","Meanwhile , on DATE , the judgment debt became a public debt pursuant to ORG .","On DATE ORG within ORG ( \u201c ORG \u201d ) found a violation of LAW No . CARDINAL to the LAW arising from a failure to enforce the judgment of DATE . It ordered ORG to ensure full enforcement of the judgment in issue within DATE , to pay the equivalent of CARDINAL in respect of non - pecuniary damage within DATE and to pay default interest after the expiry of the above time - limits at the DATE rate of PERCENT .","On DATE the applicants received the compensation awarded by ORG .","The judgment of DATE was fully enforced on DATE ( the applicants were paid the principal debt , default interest and legal costs in the amounts specified in the judgment ) .","For relevant law and practice see the admissibility decision in ORG , cited above ; PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ; the judgment in GPE v. GPE , no . DATE ... ; and ORG and Others v. GPE , nos . CARDINAL , CARDINAL and CARDINAL , DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88880","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"OWENS v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant 's wife died on DATE leaving dependent children . In DATE the applicant applied for widows ' benefits . On DATE the applicant was informed that his claim had been disallowed . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The applicant was in receipt of ORG at the relevant time , the amount of which exceeded the rate of Widowed Mother 's ORG .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102837","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":2011,"docname":"CASE OF MOUVEMENT RA\u00cbLIEN SUISSE v. SWITZERLAND","importance":3,"conclusion":"No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)","judges":"Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant association , which was set up in DATE , is a non - profit association registered in PERSON ( GPE of GPE ) . It is the national branch of ORG , an organisation based in GPE and founded in DATE by PERSON , known as \u201c PERSON \u201d . According to its constitution , its aim is to make the first contacts and establish good relations with extraterrestrials .","On DATE the applicant association requested authorisation from the police administration for the city of ORG ( the \u201c police administration \u201d ) to conduct a poster advertising campaign in the period DATE . The poster in question , measuring QUANTITY , featured in the upper part the following wording in large yellow characters on a dark blue background : \u201c The Message from Extraterrestrials \u201d ; in the lower part of the poster , in characters of the same size but in bolder type , the address of ORG website , together with a telephone number in GPE , could be seen ; at the very bottom was the phrase \u201c Science at last replaces religion \u201d . The middle of the poster was taken up by pictures of extraterrestrials\u2019 faces and a pyramid , together with a flying saucer and the LOC .","On DATE the police administration denied authorisation , referring to CARDINAL previous refusals . It had been indicated in a NORP parliamentary report on sects , dating from DATE , and in a judgment of the president of ORG for the district of GPE Sarine ( GPE of GPE ) , that ORG engaged in activities that were contrary to public order ( ordre public ) and immoral .","In a decision of DATE the municipal council of the city of ORG dismissed an appeal from the applicant association , finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect . The interference with freedom of expression had been based on LAW ( the \u201c Regulations \u201d ) ; its purpose was to protect the public interest and it was proportionate , since the organisation advocated , among other things , human cloning , \u201c geniocracy \u201d and \u201c sensual meditation \u201d .","On DATE the ORG upheld that decision . It noted that , for ORG , life on earth had been created by extraterrestrials , who were also the founders of the various religions and were capable of saving the world , and accepted that this amounted to a religious conviction protected by freedom of conscience and belief . It further accepted that ORG constituted a sufficient legal basis in such matters . The ORG observed that there was nothing offensive in the text and picture on the poster , or in the allusion to extraterrestrials . However , it pointed to the fact that ORG advocated \u201c geniocracy \u201d ( a political model based on intelligence ) , and human cloning . Moreover , in a judgment of CARDINAL DATE , concerning a right of reply , ORG had found that the movement also \u201c theoretically \u201d advocated paedophilia and incest , especially in the works of PERSON himself . The practice of \u201c sensual meditation \u201d could also easily lead to abuse . In addition , the website of PERSON , to which ORG site had a link , proposed specific services in the area of cloning , and eugenism was contrary to the principle of non - discrimination . The poster advertising campaign was prejudicial to morals and to the rights of others . In any event , ORG had other means to disseminate its ideas .","The applicant association appealed to ORG for ORG . It claimed , among other things , that the mere defence of \u201c geniocracy \u201d , cloning and sensual meditation were not offensive opinions . Moreover , it argued that the movement denounced paedophilia through its association GPE . The refusal to authorise its poster thus amounted purely and simply to censorship , especially as the applicant association \u2019s website was , in any event , accessible through a search engine .","NORP In a judgment of DATE ORG dismissed the appeal , after acknowledging , however , that the applicant association defended a global vision of the world and was entitled to both freedom of opinion and religious freedom . It found first that the impugned measure was based on ORG , which constituted a law in the substantive sense , and that the poster had to be assessed in relation to the message conveyed by the books and websites that could be accessed from the movement \u2019s website . The services proposed by PERSON were manifestly contrary to NORP public order . The court further observed that criminal complaints had been filed against ORG alleging the existence of sexual practices that were intended to systematically corrupt young teenagers . The content of the works on \u201c geniocracy \u201d and \u201c sensual meditation \u201d could lead certain adults to sexually abuse children , the child being described in certain works as a \u201c privileged sexual object \u201d . The comments on \u201c geniocracy \u201d and the criticisms of contemporary democracies were likely to undermine public order , safety and morality . For those reasons ORG concluded that it was not justifiable to authorise the dissemination of such ideas on the public highway .","The applicant association lodged a public - law appeal against that judgment with ORG , requesting that it be set aside and that the case be referred back to the respondent authority for a new decision .","In a judgment of DATE , served on the applicant association on DATE , ORG dismissed the appeal . The relevant passages read as follows :","\u201c The ORG , then ORG , acknowledged that the [ applicant ] association could rely on the right to freedom of religion ( Art . CARDINAL of the LAW , Art . CARDINAL ORG and Art . CARDINAL UN Covenant II ) , in so far as it defended a global vision of the world , especially as regards its creation and the origin of the various religions . ORG disputes this , noting that the aim of the [ applicant ] association as defined in LAW , is not religious in nature . According to a report on \u2018 sects\u2019 produced in DATE for ORG , ORG is classified among the movements that present dangers for the individual , especially on account of the excessive financial demands made of its members and practices that cause bodily harm , and also dangers for the community , in particular through an antisocial discourse . Many of the movement \u2019s publications contain passages described as offensive .","There is no need to ascertain whether a religious movement may , on account of the dangers it represents , be precluded from relying on the right to freedom of religion , or whether the [ applicant ] association presents such dangers . Indeed , the parties agree that the applicant is entitled to rely on the right to freedom of opinion . As to the conditions in which such freedom may be restricted , as laid down in LAW , it makes little difference whether LAW is relied on ( see also LAW and CARDINAL \u00a7 CARDINAL ECHR ) . The applicant association does not argue that the impugned measure impairs the very essence of its religious freedom , or that the restrictions . On the contrary , the applicant association relies on the principles of proportionality and public interest , without distinction as to the constitutional right invoked .","...","CARDINAL According to case - law , citizens do not have an unconditional right to an extended use of public space , in particular when a means of advertising on the public highway involves activity of a certain scale and duration , and excludes any similar use by third parties ( ORG judgment CARDINAL I CARDINAL point CARDINALc \/ aa p. CARDINAL and the judgments cited therein ) . When it wishes to grant authorisation for extended or private use of public space , or when it supervises the conditions under which a licence is used , the ORG must nevertheless take into account , in balancing the interests at stake , the substantive content of the right to freedom of expression ( ORG judgment CARDINAL Ia CARDINAL point CARDINAL p. CARDINAL ) .","CARDINAL In the present case , the grounds given by ORG to confirm the refusal by GPE relate to respect for morality and the NORP legal order . ORG took the view that it was necessary to take into account not only the content of the poster but also the ideas conveyed by ORG , together with the works and websites that could be accessed from the movement \u2019s website . CARDINAL different criticisms are thus directed against the [ applicant ] association . Firstly , the [ applicant ] association \u2019s website contains a link to that of PERSON , via which this company offers specific cloning - related services to the general public and announced , in DATE , the birth of cloned babies . Cloning is prohibited under NORP law , pursuant to Art . CARDINAL of the LAW and to ORG ( RS CARDINAL ) . Secondly , ORG referred to a judgment of ORG , which mentioned possible sexual abuse of children . Numerous members of the movement had , moreover , been investigated by the police because of their sexual practices . Thirdly , the promotion of \u2018 GPE , a doctrine according to which power should be given to the most intelligent individuals , and the criticism consequently directed at contemporary democracies , was likely to undermine the maintaining of public order , safety and morality .","CARDINAL The applicant no longer contests , at this stage , the existence of a sufficient legal basis , namely , in this case , LAW . A municipal by - law offers the same guarantees , in terms of democratic legitimacy , as a Cantonal law , and thus constitutes a sufficient legal basis ( judgment MONEY of CARDINAL DATE point CARDINAL ORG judgment CARDINAL I xxx ; ORG judgment CARDINAL I CARDINAL point CARDINAL p. CARDINAL ; CARDINAL GPE CARDINAL point CARDINAL p. CARDINAL and the references cited therein ) . The applicant invokes , however , the principle of public interest and criticises the respondent authorities for going beyond the content of the poster and engaging in an assessment of the [ applicant ] association \u2019s activities . It argues that if it had generally engaged in conduct that was immoral or in breach of public order , it would have been dissolved by the courts pursuant to Article CARDINAL of LAW . If no decision had been taken to that effect , it would not be possible to prohibit it from publicising its philosophy and world vision .","CARDINAL The poster in itself does not contain anything , either in its text or in its illustrations , that was unlawful or likely to offend the general public . Above the central drawing representing extra - terrestrials appears the text \u2018 The Message from Extraterrestrials\u2019 , without any explanation . Below that , the [ applicant ] association \u2019s website address and a telephone number are printed in bolder type . The phrase \u2018 Science at last replaces ORG is admittedly capable of offending the religious beliefs of certain persons , but it is merely the expression of the movement \u2019s doctrine and can not be described as particularly provocative .","The poster as a whole can thus clearly be seen as an invitation to visit the website of the [ applicant ] association or to contact it by telephone . Faced with such advertising , the authority must examine not only the admissibility of the advertisement \u2019s message as such , but also that of its content . It is therefore legitimate to ascertain whether the website in question might contain information , data or links capable of offending people or of infringing the law .","Moreover , contrary to the applicant \u2019s allegation , an association may be criticised for opinions or activities which , without constituting grounds for dissolution within the meaning of LAW , nevertheless justify a restriction on advertising .","CARDINAL As regards cloning , it was not the opinions expressed by the [ applicant ] association in favour of such practices ( particularly in the book Yes to Human Cloning , published in DATE and available via the applicant \u2019s website ) that were penalised , but the link with the company PERSON , set up by the association itself , which proposes various practical services in this area for payment . The issue is thus not simply , contrary to what the applicant has argued , the expression of a favourable opinion of cloning , protected by LAW , but the practice of that activity , in breach of its prohibition under LAW ( a ) of LAW . That provision , accepted in DATE by the majority of the population and of GPE ( in the form of Article CARDINALnovies ( a ) of the LAW ) , falls in particular within a policy of protection of human dignity , according to the conception thereof that is generally shared in this country ( FF DATE III CARDINAL ; see also the response of ORG to a question from PERSON of DATE ) . The applicant does not contest the unlawfulness of human cloning , especially if it is carried out for commercial gain ( Section CARDINAL \u00a7 Medically - Assisted Reproduction Act ; Art . CARDINAL \u00a7 CARDINAL ( e ) of the LAW ) . Nor can it seriously contest the fact that the link to the PERSON website contributes to the promotion of an unlawful activity , and goes further than the mere expression of an opinion . On that first point , which already justifies the decision under appeal , the applicant has not put forward any real relevant argument within the meaning of Art . CARDINAL \u00a7 CARDINAL ( b ) of LAW .","CARDINAL On DATE the Intercantonal Beliefs Information Centre provided information on ORG . This information shows , among other things , that the movement apparently has a political mission . Virulently attacking democracies , which are referred to as \u2018 mediocracies\u2019 , it defends the notion of \u2018 GPE , a political model based on ORG level of intelligence . A world government would consist of geniuses , elected by individuals whose intelligence is PERCENT higher than average . Admittedly , \u201c geniocracy \u201d is presented as a utopia and not as a genuine political project ; contrary to the finding of ORG , this doctrine does not appear likely to undermine public order or safety .","However , apart from the fact that the doctrine appears to be largely inspired by eugenism , it is manifestly capable of offending the democratic and anti - discriminatory convictions that underpin the rule of law ( see , in particular , the wording of the preamble to LAW of DATE , together with LAW concerning equality and the prohibition of discrimination ) .","CARDINAL.CARDINAL.CARDINAL Lastly , according to the judgment under appeal , it can not be considered that ORG advocates paedophilia . However , numerous members have apparently been investigated by the police on account of their sexual practices . According to a judgment delivered on DATE by ORG Sarine , concerning a right of reply requested by the ORG ra\u00eblien GPE , the remarks made by PERSON in his works could lead certain adults to commit acts of sexual abuse against children . The judgment quotes extracts from works by PERSON that can be downloaded from the website of the [ applicant ] association , according to which the sexual education of children should not only be theoretical but should consist of a sensual education aimed at showing them how to derive pleasure from it . That judgment further indicates that , notwithstanding the denial subsequently issued on this point , certain articles published in the DATE newsletter Apocalypse described the child as a \u2018 privileged sexual object\u2019 . Lastly , it is stated that a friend and a member of ORG were convicted by ORG and sentenced to DATE imprisonment for sexually assaulting a DATE girl . The judgment was upheld on CARDINAL DATE by ORG . An ordinary appeal and a public - law appeal by the ORG ra\u00eblien were dismissed on DATE by ORG , having regard in particular to the equivocal writings of the movement \u2019s founder or members ( judgments ORG and PERSON ) .","The case - file , moreover , contains various documents concerning criminal proceedings brought against members of the [ applicant ] association for sexual assault . A judgment of DATE of ORG clearly shows that acts of sexual abuse were committed by leaders of the movement against minors . The movement \u2019s leaders are thus said to have advocated \u2018 a broad sexual freedom strongly encouraging commission of the act\u2019 ; they had thus corrupted young teenagers by supposedly philosophical discourse , by increasingly specific sexual fondling and by inciting them more and more forcefully , in order to satisfy \u2018 their sexual needs and fantasies with young girls who had just turned DATE , and who were changing partners very quickly\u2019 .","The fact that the impugned articles date from DATE and that there has been no conviction in GPE does not negate the involvement of members of the [ applicant ] association in acts leading to criminal sanctions . The applicant association does not dispute the fact that certain passages in the books available via its website could lead adults to abuse children . On that point also , the applicant \u2019s arguments do not address the grounds set out in the decision under appeal . Since acts of abuse have indeed been recorded on the part of certain members of ORG , the argument that paedophilia is strongly condemned by the movement \u2019s official doctrine is not decisive .","CARDINAL Having regard to the foregoing , the refusal issued to the applicant association appears to be justified by sufficient public - interest grounds , because it is necessary to prevent the commission of acts constituting criminal offences under NORP law ( reproductive cloning and sexual acts with children ) . Moreover , certain passages in the works available via the applicant \u2019s website ( in particular about the \u2018 sensual LOC of children , and \u2018 GPE ) are likely to be seriously offensive to readers .","CARDINAL The applicant association invokes the principle of proportionality . It points out that the poster itself contains nothing that is contrary to public order , and maintains that the measure is not appropriate to the aim pursued .","CARDINAL In accordance with LAW . , any restriction on a fundamental right must be proportionate to the aim pursued . It must be appropriate to the fulfilment of that aim and any damage to private interests must be kept to a minimum ( ORG judgment CARDINAL I CARDINAL point CARDINAL p. CARDINAL and the references cited therein ) .","CARDINAL.CARDINAL.CARDINAL In the present case , the public interest does not only consist in limiting the publicity given to the [ applicant ] association \u2019s website , in view of the reservations expressed above about public order and morality ; it is even more important to ensure that the ORG does not provide any support for such publicity by making public space available for it , which might suggest that it endorses or tolerates the opinions or conduct in question . From that perspective , the prohibition of the posters is appropriate to the aim pursued . Furthermore , the measure criticised by the applicant is confined to the display of posters in public spaces . The [ applicant ] association remains free to express its beliefs by many other means of communication at its disposal ( see the PERSON judgment of DATE , ORG CARDINAL-IX , p. CARDINAL , \u00a7 CARDINAL ) .","CARDINAL.CARDINAL.CARDINAL The applicant takes the view that the authority should have suggested that it make changes to the poster in order to make the content admissible . However , even though it was aware of the objections raised against its poster campaign , the applicant itself never proposed a version of the poster that was likely to be authorised . ORG , for its part , found that the poster should be prohibited even without the reference to the website , but this seems questionable ; there is no doubt , however , that the removal of the address in question would deprive the poster campaign of its object , which , as has been shown , is essentially to advertise the website itself . It is therefore difficult to see what comprehensible meaning the poster could have had without that reference to the website and to the telephone number .","CARDINAL.CARDINAL.CARDINAL The impugned measure therefore respects the principle of proportionality , in all its aspects . It constitutes , for the same reasons , a restriction that is necessary \u2018 in a democratic society\u2019 , in particular for the protection of morals , within the meaning of Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG . \u201d","Article CARDINAL of the Federal Constitution concerns reproductive medicine and gene technology involving human beings . That provision reads as follows :","\u201c Human beings shall be protected against the misuse of reproductive medicine and gene technology .","The ORG shall legislate on the use of human reproductive and genetic material . In doing so , it shall ensure the protection of human dignity , privacy and the family and shall adhere in particular to the following principles :","( a ) All forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful .","( b ) Non - human reproductive and genetic material may neither be introduced into nor combined with human reproductive material .","( c ) Methods of medically - assisted reproduction may be used only if infertility or the risk of transmitting a serious illness can not otherwise be overcome , but not in order to conceive a child with specific characteristics or for research purposes ; the fertilisation of human egg cells outside a woman \u2019s body is permitted only under the conditions laid down by the law ; no more human egg cells may be developed into embryos outside a woman \u2019s body than are capable of being immediately implanted .","( d ) The donation of embryos and all forms of surrogate motherhood are unlawful .","( e ) Trade in human reproductive material and in products obtained from embryos is prohibited .","( f ) The genetic material of a person may be analysed , registered or made public only with the consent of the person concerned or if the law so provides .","( g ) Everyone shall have access to data relating to their ancestry . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":["10-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-99883","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2010,"docname":"CASE OF DADOUCH v. MALTA","importance":2,"conclusion":"Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant is a NORP national who was born in GPE , GPE , in DATE , and lives in GPE , GPE .","In DATE the applicant acquired NORP citizenship by registration in consequence of his marriage to a NORP national . Subsequently , on DATE the marriage was annulled by court order as it had been found to be a marriage of convenience . However , the applicant retained NORP nationality according to the law in force at the time .","On DATE the applicant married a NORP national in GPE .","In DATE following DATE the applicant applied to ORG to have his marriage registered in GPE .","On several occasions , notwithstanding the presentation of his NORP identity card and a NORP passport , ORG required \u201c as a matter of policy \u201d that the applicant submit a letter from ORG declaring that he was a citizen of GPE .","According to the Government the authorities also noted that the requisite translation of the NORP marriage certificate presented by the applicant had not been apostilled by ORG of GPE .","NORP Despite his contention that the request for a letter from ORG did not have a legal basis in domestic law , the applicant requested the ORG to issue the letter . ORG refused to issue such a letter , allegedly replying that he was not bound to issue it then , if at all .","Following the applicant 's request , by a decision of ORG dated DATE , the Director of ORG was directed to register the marriage , upon the applicant submitting his original act of marriage in NORP together with an LANGUAGE translation authenticated by his lawyer .","The applicant 's request remained unsatisfied notwithstanding this decision .","On DATE the decision of CARDINAL DATE was revoked by ORG . The latter , while expressing doubts as to whether the applicant could apply to ORG , held that a NORP passport was not conclusive evidence of citizenship . Furthermore , the Director was vested with discretion to demand documents which he considered reasonable to prove the authenticity of what was submitted to him . The court therefore agreed that the NORP certificate of marriage produced by the applicant was not sufficiently authenticated evidence satisfying the Director of ORG , having regard to LAW ( see relevant domestic law , below ) .","On DATE the applicant instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction . He complained that the refusal to register his marriage was in violation of his LAW alone and in conjunction with LAW .","It appeared from the evidence given by an official employed at ORG that there were CARDINAL reasons for the refusal to register the marriage . Firstly , the documents presented by the applicant had not been authenticated by ORG of GPE , which is the competent authority to attach apostilles to such public documents , and , secondly , that every person who applied for registration was asked to produce a letter of citizenship .","According to the evidence of the relevant Minister , the request for such a certificate did not result from a law or legal notice but from an internal regulation . While in the course of the present proceedings a circular , applicable to all Government departments , was issued stating that NORP passports could be accepted as proof of citizenship , the Minister stated that a letter of citizenship was the best evidence to prove citizenship at any precise moment .","On DATE , during these proceedings , the Head of ORG also confirmed that the applicant was a NORP citizen .","On DATE the applicant withdrew his complaint in relation to Article CARDINAL taken in conjunction with Article CARDINAL .","On DATE , the court rejected the application , with legal costs to be paid by the applicant . It held that Article CARDINAL had not been breached , since the Director of ORG had not categorically refused to register the marriage , but had merely requested appropriate documentation . Moreover , Article CARDINAL did not extend to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non - national spouse for settlement in that country .","On DATE , the applicant appealed to ORG .","On DATE the court invited the Director of ORG to indicate the law on which the Registry based its insistence on the \u201c letter of nationality \u201d . The Director stated that it was a matter of policy . The case was then adjourned to CARDINAL DATE for the Head of the Nationality department to testify .","Meanwhile , on DATE , the applicant was called upon by the ORG to register the marriage . He was asked to submit the original or an authenticated copy of his marriage certificate . No further documents were requested .","On DATE the marriage was registered on the basis of the documents originally submitted by the applicant .","On DATE , before ORG , the appeal was maintained as the Director of ORG did not accept that the first judgment should be revoked and the costs refunded to the applicant .","On DATE , ORG found that there had not been a violation of LAW . It held that the request for a \u201c letter of citizenship \u201d was in accordance with law , namely Article CARDINAL ) of the Civil Code according to which the Director of ORG had to be satisfied that CARDINAL of the parties to the marriage was a NORP citizen . Although an identity card and a passport were prima facie evidence of nationality they were not conclusive , especially when citizenship had been obtained through registration ( as in the case of the applicant ) or naturalisation , both being subject to revocation according to section QUANTITY of LAW ( see relevant domestic law ) . The Minister 's deposition in respect of the recently issued circular was irrelevant , since responsibility for ascertaining the compliance with the requirements of Article CARDINAL ) was for the Director of ORG . Thus , the requirement of a letter of nationality was in accordance with the law , pursued a legitimate aim and was proportionate . However , ORG noted that from the witness testimony at the hearing of DATE , it was clear that the applicant was a NORP citizen ; however , interdepartmental lethargy had meant that the Director of ORG only called upon the applicant to register the marriage on DATE . Thus , the ORG revoked the first - instance judgment in part by ordering the costs to be shared between the parties . It further noted that the applicant had withdrawn his LAW complaint and consequently no appeal lay against it .","Regarding marriages in foreign countries , LAW , LAW of LAW , in so far as relevant , reads as follows :","( CARDINAL ) Any act of birth , marriage or death of a citizen of GPE drawn up or registered in a foreign country by a competent authority in that country , ... may , at the request of any person interested and upon the Director of ORG being satisfied of the authenticity of such act , be registered in these LOC in the same manner as if it were an act drawn up by any of the persons mentioned in this Title .","( CARDINAL ) The person making the request shall , for the purposes of registration , deliver to the Director the act in respect of which such request is made .","In this respect , LAW reads as follows :","( CARDINAL ) The Director shall not accept any act which is not written in clear and legible characters , or which contains abbreviations , or which may appear to him to be otherwise defective or irregular .","( CARDINAL ) In any such case , the act shall be presented by the Director to CARDINAL of the Visitors of notarial acts , who , after hearing , if necessary , the person by whom the act has been made , shall determine the manner in which , according to law , the act is to be drawn up .","( CARDINAL ) The Director may not refuse to accept any act which is countersigned by CARDINAL of the said Visitors .","In respect of registration and the validity of marriages , sections CARDINAL and CARDINAL of LAW , LAW of LAW , provide as follows :","Section CARDINAL","( CARDINAL ) Registration is not essential to the validity of marriage .","( CARDINAL ) Registration shall not operate to validate a marriage which , independently of such registration , is null .","( CARDINAL ) A marriage shall not have effect for any purpose of law unless and until the appropriate act of marriage is completed and delivered for registration in accordance with the provisions of articles CARDINAL and CARDINAL of LAW .","Section CARDINAL","A marriage , whether celebrated in GPE or abroad , shall be valid for all purposes of law in GPE if -","( a ) as regards the formalities thereof , the formalities required for its validity by the law of the country where the marriage is celebrated are observed ; and","( b ) as regards the capacity of the parties , each of the persons to be married is , by the law of the country of his or her respective domicile , capable of contracting marriage .","Article CARDINAL of LAW ( \u201c COCP \u201d ) provides a list of documents requiring no proof of authenticity other than that which they bear on the face of them . ORG - article ( f ) refers to the certificates issued from ORG .","According to a notice published on the Government website by ORG and Expatriate affairs , dated DATE , regarding registration of foreign certificates concerning citizens of GPE at ORG , the documents required for registration of a marriage abroad by a citizen of GPE are as follows : CARDINAL ) marriage certificate , CARDINAL ) birth certificate CARDINAL ) father 's birth certificate CARDINAL ) parents ' marriage certificate CARDINAL ) NORP passport .","According to section CARDINAL of LAW , LAW , as in force since DATE , the Minister may by order deprive of his NORP citizenship any citizen of GPE who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud , false representation or the concealment of any material fact or on any other of an exhaustive list of grounds .","According to LAW , apostilles may only be issued by a ORG designated by the ORG on whose territory the public document has been executed . Its Article CARDINAL lists the competent authorities , which in so far as relevant in respect of GPE , reads as follows :","ORG of GPE ;","ORG of GPE ;","ORG of GPE ;","ORG of the executive bodies in subjects of GPE ;","ORG and the authorised bodies for archives of the executive power in subjects of GPE ;","ORG ;","ORG of GPE on official archive documents on military service ( employment ) in ORG , ORG GPE and ORG ( ORG ) , issued in GPE ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-66824","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2004,"docname":"CASE OF SIKORA v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant lodged a motion with ORG , claiming a division of inheritance and dissolution of co - ownership of a certain property .","The court held hearings on : CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE and DATE .","Having regard to the lack of progress in the proceedings , and apparently aiming at obtaining possession of the property by other legal means , on DATE the applicant lodged a motion with ORG , claiming acquisitive CARDINAL of the property in question . By a decision of CARDINAL DATE ORG dismissed her motion . By a decision of DATE ORG dismissed her further appeal and upheld the contested decision .","Further hearings in the dissolution case were held on DATE , DATE , CARDINAL DATE and DATE .","The court ordered a number of expert opinions . They were submitted to the court on : CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE and DATE . ORG","By a decision of DATE ORG stayed the proceedings due to the fact that one of the parties to the proceedings had died . By virtue of the same decision the court resumed the proceedings , having regard to his heirs ' request that the proceedings be resumed .","On DATE the ORG gave a judgment on the merits .","On DATE the ORG dismissed the applicant 's appeal .","By a decision of DATE ORG declined to examine the cassation appeal , considering that it had not been shown that arguable public interest grounds existed which would justify the examination of the appeal ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86508","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"WOOD v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE , leaving CARDINAL child born in DATE . In DATE or DATE the applicant applied for widows\u2019 benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . By a letter of CARDINAL DATE the GPE agency confirmed their decision and the lack of his right to an appeal . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The applicant was not in receipt of child benefit at the time of his claim .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78843","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2006,"docname":"WIDAWSKA v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The proceedings initiated upon the applicant \u2019s motion","On DATE the applicant lodged an action against her father with ORG . She sought an increase of the amount of maintenance to be paid by her father , who was partially incapacitated .","On DATE the first hearing was held .","On an unknown date the court requested the case file of the proceedings for annulment of the marriage of the applicant \u2019s parents .","On DATE the applicant supplemented her action by seeking maintenance also from her grandfather .","On DATE the court was informed by ORG that in the proceedings for annulment of the applicant \u2019s GPE marriage the court had not ruled on the issue of the applicant \u2019s maintenance .","On DATE the applicant amended her claim as she no longer wished to claim maintenance from her grandfather and changed the amount of maintenance claimed from her father .","On DATE ORG gave a judgment . The applicant \u2019s father was ordered to pay the applicant DATE maintenance in the amount of MONEY in place of the previous amount of QUANTITY per month . The court made the judgment immediately enforceable .","On DATE the applicant \u2019s father lodged an appeal .","On DATE the court requested the guardian of the applicant \u2019s father to confirm his appeal as the applicant \u2019s father was partially incapacitated .","In a letter of CARDINAL DATE the legal representative of the applicant \u2019s father stated that he did not support the appeal .","On DATE ORG rejected the applicant \u2019s father \u2019s appeal of DATE on formal grounds .","The proceedings initiated upon the applicant \u2019s father \u2019s motion","On DATE the applicant \u2019s father lodged a motion for exemption from court fees , which was subsequently granted by ORG .","On DATE , CARDINAL May and DATE ORG held hearings in the case .","By a judgment of DATE ORG reduced the amount of maintenance from CARDINAL FAC to CARDINAL . The court - appointed guardian lodged an appeal on behalf of the applicant \u2019s father . It was rejected on DATE by ORG for non - compliance with the prescribed time - limit .","On DATE ORG dismissed the applicant \u2019s appeal against the judgment of DATE . The applicant was served with the decision on DATE .","At a hearing held on DATE the applicant \u2019s father withdrew his motion for annulment of the alimony decision ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102908","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2011,"docname":"CASE OF KASHAVELOV v. BULGARIA","importance":3,"conclusion":"No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and is currently serving a life term in FAC .","On DATE the applicant was arrested on suspicion of having abducted a person . On DATE he was charged with that offence . In DATE he was charged with murdering QUANTITY police officers , and on DATE with CARDINAL other offences .","On an unspecified date in DATE the prosecuting authorities submitted an indictment against the applicant to ORG . However , on DATE the judge rapporteur referred the case back to them , citing irregularities in the manner in which some of the charges and evidence had been presented to the applicant .","On DATE the prosecuting authorities submitted to ORG an indictment against the applicant and CARDINAL others . The charges included the murder of QUANTITY police officers , several attempted murders , robberies , thefts , unlawful deprivation of liberty , and unlawful possession of firearms . On DATE the judge rapporteur set the case down for trial over DATE in DATE .","The Sofia City Court held CARDINAL hearings DATE and DATE , and on the latter date convicted the applicant of aggravated murder , hooliganism , attempted armed robbery , deprivation of liberty and unlawful possession of firearms , and acquitted him of the other charges . It sentenced him to life imprisonment without commutation and ordered that he should begin serving his sentence under the strictest prison regime ( the so - called \u201c special regime \u201d \u2013 see paragraph CARDINAL below ) .","On appeal , ORG held CARDINAL hearings , the last of which took place on DATE . On DATE it partly quashed the lower court 's judgment , acquitting the applicant of CARDINAL of the charges of attempted armed robbery and of the charges of unlawful possession of firearms , and re - qualifying one of the other charges . It upheld the remainder of the judgment , including the applicant 's sentence .","On DATE ORG partly quashed ORG judgment and remitted the case to that court for reconsideration of the charges of attempted robbery . It upheld the remainder of the judgment , including the applicant 's sentence .","NORP On remittal , ORG held CARDINAL hearings . On DATE , it upheld ORG judgment , acquitting the applicant of the charges of attempted armed robbery . No appeal was lodged , and the judgment became final on DATE .","On DATE the applicant was moved to the detention centre of ORG . On DATE he was transferred to FAC . DATE , he was held there as a detainee awaiting the final determination of the criminal charges against him . Since DATE , his stay in the prison has been continued on the basis of his final sentence of life imprisonment .","On DATE the prison 's governor , relying on the relevant regulations ( see paragraphs CARDINAL and CARDINAL below ) and having regard to a note in which the investigating authorities had described the charges against the applicant , his character , and their assessment of the risk that he could pose to prison staff , ordered that he be placed within an isolated group of prisoners subjected to stringent security measures and be deprived of the right to take part in communal activities . In a follow - up decision of CARDINAL DATE the governor ordered that the applicant be handcuffed each time he was separated from that group . According to the Government , the applicant was being handcuffed only when taken out of the premises occupied by the group DATE for outdoor activities , visits to the prison doctor , dentist or library , or receiving visitors or lawyers . He was allowed to exercise in a special secluded yard . The applicant contended that he was being handcuffed each time when taken out of his cell .","The applicant alleged that he was held alone in a locked cell measuring CARDINAL by QUANTITY . He could leave the cell only for his DATE onehour walk . During DATE in prison he took his walk alone . After that , he was allowed to join CARDINAL or CARDINAL other life prisoners , but was prohibited from talking to them . Since DATE , he was again taking his DATE walks alone , in a concrete enclosure covered with a wire - net and measuring CARDINAL by QUANTITY . The only other times when the applicant was allowed out of his cell were the scheduled visits to the sanitary facilities , for TIME twice a day . According to him , those were the only occasions when he could stock up on drinking water . Later , he was allowed to spend more time using the sanitary facilities . The applicant further alleged that during DATE of his stay in prison he was being deprived of CARDINAL of his DATE meals once DATE , and for an initial period of DATE he was not allowed to use his own bed sheets and pillows .","The Government disputed those allegations , saying that the applicant had not been subjected to serious isolation inside his prison group . They pointed out that , save for a limited number of restrictions flowing from the \u201c special regime \u201d to which the applicant was subjected , he enjoyed the opportunities available to all other inmates , such as the possibility to work , access to free health and dental care , access to the prison library and temple , receiving visitors , parcels , telephone calls and correspondence , etc . They cited a note drawn up by the prison 's governor , which said the following :","\u201c [ The applicant ] is even now extremely hostile towards the legal order of GPE . He does not accept his conviction and sentence , and considers the criminal proceedings against him to be unfair and biased . He shows complete disregard to others , and acts rudely and arrogantly when approached . Extremely mistrustful , suspicious and hostile towards all prison staff . His irascibility , undisguised cruelty and spitefulness , and constant nervous tension make him especially dangerous and unpredictable . His attitude towards the other inmates in his group does not differ markedly from the CARDINAL described above . He refuses to socialise with others , hates everything and everyone . He enters into sporadic contacts with the group 's hygienist when necessary . Refuses to take part in communal activities . On several occasions he was offered work , which he pointedly turned down . When taken out for visits and in the presence of larger groups of people , he often loudly makes negative remarks about the courts and the prison administration . He often rehearses his ' defence speech ' naked in his cell . \u201d","The applicant disputed those allegations and pointed out that the governor did not cite any specific facts to support them .","At the material time the regime of pre - trial detainees kept in prisons was governed by regulations issued in DATE ( ORG \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u0437\u0430 \u043f\u043e\u043b\u043e\u0436\u0435\u043d\u0438\u0435\u0442\u043e \u043d\u0430 \u043e\u0431\u0432\u0438\u043d\u044f\u0435\u043c\u0438\u0442\u0435 \u0438 \u043f\u043e\u0434\u0441\u044a\u0434\u0438\u043c\u0438\u0442\u0435 \u0432 \u043c\u0435\u0441\u0442\u0430\u0442\u0430 \u0437\u0430 \u043b\u0438\u0448\u0430\u0432\u0430\u043d\u0435 \u043e\u0442 \u0441\u0432\u043e\u0431\u043e\u0434\u0430 ) . In DATE those were superseded by similar regulations ( ORG CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u0437\u0430 \u043f\u043e\u043b\u043e\u0436\u0435\u043d\u0438\u0435\u0442\u043e \u043d\u0430 \u043e\u0431\u0432\u0438\u043d\u044f\u0435\u043c\u0438\u0442\u0435 \u0438 \u043f\u043e\u0434\u0441\u044a\u0434\u0438\u043c\u0438\u0442\u0435 \u0441 \u043c\u044f\u0440\u043a\u0430 \u0437\u0430 \u043d\u0435\u043e\u0442\u043a\u043b\u043e\u043d\u0435\u043d\u0438\u0435 \u0437\u0430\u0434\u044a\u0440\u0436\u0430\u043d\u0435 \u043f\u043e\u0434 \u0441\u0442\u0440\u0430\u0436\u0430 ) , which remained in force until DATE .","Regulation CARDINAL(CARDINAL)(CARDINAL ) of the DATE regulations , superseded by regulation CARDINAL(CARDINAL ) of LAW , provided that detainees could be placed in a locked cell and be deprived of the right to take part in communal activities if considered a security risk . That measure could be imposed by the prison 's governor , who had to have regard to the detainee 's personal characteristics and psychological state , and to the dangerousness of the offence in relation with which he or she had been detained . Regulation CARDINAL(CARDINAL ) in fine of the DATE regulations , superseded by regulation DATE regulations , provided that detainees subjected to such measures had to be kept isolated from the general prison population each time they were taken out of their cells , for court transfers , medical treatment , receiving visitors , outdoor activities , etc .","NORP Until DATE the regime of prisoners serving a life sentence was governed by LAW ( DATE ) ( ORG \u0437\u0430 \u0438\u0437\u043f\u044a\u043b\u043d\u0435\u043d\u0438\u0435 \u043d\u0430 \u043d\u0430\u043a\u0430\u0437\u0430\u043d\u0438\u044f\u0442\u0430 ) and the regulations for its implementation . In DATE and DATE these were superseded by , respectively , ORG and Pre - Trial Detention Act ( ORG \u0437\u0430 \u0438\u0437\u043f\u044a\u043b\u043d\u0435\u043d\u0438\u0435 \u043d\u0430 \u043d\u0430\u043a\u0430\u0437\u0430\u043d\u0438\u044f\u0442\u0430 \u0438 \u0437\u0430\u0434\u044a\u0440\u0436\u0430\u043d\u0435\u0442\u043e \u043f\u043e\u0434 \u0441\u0442\u0440\u0430\u0436\u0430 ) and the regulations for its implementation .","NORP The regime of life prisoners was governed by sections CARDINALa-CARDINALe of LAW , added in DATE . Section CARDINALb(CARDINAL ) provided that when imposing a life sentence the court had to order the prisoner 's placement under the strictest regime , called \u201c special regime \u201d . Individuals placed under that regime were to be kept in locked single cells and subjected to heightened security and supervision ( regulation CARDINAL ) of the implementing regulations ) . Those provisions were maintained in DATE Act ( sections DATE ) , PERSON ) and CARDINAL ) ) and the DATE regulations ( regulation CARDINAL ) . Regulation CARDINAL additionally provides that life prisoners can take part in communal activities only with prisoners of the same category . Under regulation CARDINAL , they have to be kept isolated from the general prison population even when taken out of their cells for transfers , medical treatment , visits , outdoor activities , etc .","Section CARDINALb(CARDINAL ) of the DATE Act , superseded by section CARDINAL(CARDINAL ) of the CARDINAL Act , provided that , if they had good conduct , after DATE life prisoners could be placed under a lighter regime . The time spent in pre - trial detention does not form part of that period ( regulation CARDINAL ) of the implementing regulations of LAW , superseded by regulation CARDINAL of the implementing regulations of the DATE Act ) . The decision to place a life prisoner under a lighter regime is taken by a commission consisting of prison staff and various other officials ( section CARDINAL of the CARDINAL Act , superseded by sections CARDINAL and CARDINAL of the DATE Act ) . Under section CARDINAL of the DATE Act , the commission 's decisions could be challenged by the Minister of ORG . Under section CARDINAL(CARDINAL ) of the CARDINAL Act , only the decisions to place a prisoner under a stricter regime can be challenged , by way of judicial review . Once under a lighter regime , life prisoners can , under certain conditions , be placed together with the general prison population ( section DATE ) of the DATE , superseded by section CARDINAL(CARDINAL ) of the DATE Act ) .","The ORG has visited GPE CARDINAL times . PERSON was visited in DATE and DATE .","NORP The report on the DATE visit ( ORG ( DATE ) CARDINAL ) says :","\u201c CARDINAL . There were CARDINAL lifers at FAC at the time of the visit ; CARDINAL were being accommodated in the mainstream prison population , while the rest were held in a separate unit in the section used for disciplinary isolation ... Lifers in the separate unit were accommodated in single cells measuring QUANTITY m\u00b2 ; the cells had a small barred window , set too high in the wall to afford a view out . There was integral sanitation which reduced the limited space in the cell ; however , the cells would provide adequate sleeping accommodation for CARDINAL person provided these prisoners were offered a varied programme of out - of - cell activities during the daytime .","However , in contrast to the situation observed in [ CARDINAL other prisons ] , life - sentenced prisoners in FAC lacked communal activities . They were locked up in their cells except for periods of outdoor exercise ( TIME like the rest of the inmates at FAC ) , which all but CARDINAL lifers took together . The lack of group activities is not justifiable in security terms , given that life - sentenced prisoners already exercise together . The delegation was told of plans to set up a group room for association and other activities for lifers , which would be opened in the near future . In - cell activities included watching TV and reading books from the library and a DATE newspaper ; further , CARDINAL lifers worked in their cells ( making gift bags ) . CARDINAL prisoner interviewed by the delegation complained that he had been refused permission to have a personal computer in his cell to do a computer literacy course .","The CARDINAL lifers who did not join the others for communal exercise were segregated under orders reviewed DATE . Whenever they were outside the cell , they were handcuffed , including for exercise which they took alone in a secure yard . In the ORG 's opinion , there can be no justification for handcuffing a prisoner exercising alone in a secure yard , provided there is proper staff supervision . ORG recommends that the NORP authorities review their current policy as regards the handcuffing of the above - mentioned life - sentenced prisoners , in the light of these remarks . \u201d","NORP The report on the DATE visit ( ORG ( DATE ) CARDINAL ) says :","\u201c CARDINAL . [ A]t the time of the visit , there were CARDINAL life - sentenced prisoners at FAC . CARDINAL of [ them ] had been integrated into the mainstream prisoner population , while the remainder were being held in a separate unit ( Group CARDINAL ) .","Material conditions of detention in the lifer unit had remained basically unchanged since the DATE visit ... The installation of integral sanitation in the cells , with a shower head over the toilet and access to hot water DATE , was a positive feature ; however , as a result , prisoners had less occasions to leave their cells and interact with staff .","Some of the lifers had their own television sets and play - stations in their cells . At the time of the DATE visit , lifers had had hot plates in their cells , to cook food , which increased their sense of independence and helped to pass the time . The hot plates had reportedly been withdrawn DATE before the visit for safety reasons , and lifers had immersion coils for heating water .","DATE . As regards activities , CARDINAL notable change since the DATE visit was the entry into operation of a social room ( \u201c club \u201d ) in the lifer unit . This good facility was decorated in pleasant light colours and furnished with bookcases , a chess table with CARDINAL chairs , a larger table with CARDINAL chairs , a cupboard with games including a backgammon board , a television set with DVD player and a sink . Lifers were divided into CARDINAL subgroups on the basis of common interests ( playing cards , chess , discussing legal matters , etc . ) and each group was allowed to use the social room for TIME each weekday . At DATE , there were only the CARDINAL officers present , which made it difficult to organise activities .","Lifers who were willing to work ( CARDINAL of the CARDINAL in the lifers unit ) worked in their cells on the same kinds of piece work as was observed on the DATE visit ( e.g. putting strings on boutique bags ) .","Further , outdoor exercise for TIME per day was offered to all lifers . The delegation noted that a shelter had been provided at CARDINAL end of the exercise yard .","Despite the above - mentioned welcome introduction of a social room , which increased the amount of time spent out of the cells and in association with other prisoners , the DATE regime in the lifer unit remained monotonous . The ORG recommends that the NORP authorities strive to enhance the programme of activities provided to life - sentenced prisoners at FAC , if necessary , by increasing staffing .","Staff on the lifer unit indicated that CARDINAL of the inmates were in DATE of a life sentence and were therefore subject to particular security restrictions . The CARDINAL lifers were escorted in handcuffs and were not allowed television . It was up to the Director to review the use of handcuffs , but there was no time limit on their use and no regular review period .","As already stated in the report on the DATE visit , the ORG considers that there can be no justification for routinely handcuffing a prisoner within a secure environment , provided there is proper staff supervision . ORG recommends that the NORP authorities review the policy of handcuffing life - sentenced prisoners when outside their cells .","The ORG has in the past expressed its serious misgivings about the current legal provisions whereby lifers are systematically subjected to a strict and segregated regime for an initial period ordered by the sentencing court ( i.e. DATE ) . This approach runs counter to the generally accepted principle that offenders are sent to prison as a punishment , not to receive punishment .","The ORG does not question that it may be necessary for some prisoners to be subject , for a certain period of time , to a special security regime . However , the decision whether or not to impose such a measure should lie with the prison authorities , be based on an individual risk assessment and be applied only for the shortest period of time . A special security regime should be seen as a tool of prison management , and not be made part of the catalogue of criminal sanctions to be imposed by courts .","In many countries , lifers are not viewed as necessarily more dangerous than other prisoners ; many of them have a long - term interest in a stable and conflict free environment . Therefore , the approach to the lifer management should proceed from individual risk and needs assessment to allow decisions concerning security , including the degree of contact with others , to be made on a case - by - case basis .","Whereas lifers should not be systematically segregated from other prisoners , special provision should be made to assist lifers and other long - term prisoners to deal with the prospect of DATE in prison . In this respect , reference should be made to Rule CARDINAL of ORG which states that \u201c particular attention shall be paid to providing appropriate sentence plans and regimes for life - sentenced prisoners \u201d , taking into consideration the principles and norms laid down in ORG on the \u201c management by prison administrations of life - sentence and other long term prisoners \u201d .","Pursuant to NORP law , after DATE of their sentence , lifers are eligible for allocation within the mainstream prisoner population if they have behaved well and have had no disciplinary punishments . However , in practice , only a minority of lifers ( CARDINAL out of CARDINAL at FAC ) had found their way into the mainstream , some after many years served in the lifer unit . The ORG invites the NORP authorities to build on the success of the \u201c experiment \u201d of integrating some life - sentenced prisoners into the mainstream prison population , which should be considered as an appropriate part of the management of this category of prisoner and reinforced by legislative measures .","More generally , the ORG recommends that the NORP authorities review the legal provisions and practice concerning the treatment of life - sentenced prisoners , in the light of the above remarks . \u201d"],"violated_articles":["13","3","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107697","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2011,"docname":"CASE OF ANDRIYEVSKA v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and lives in GPE .","NORP In DATE the applicant instituted proceedings for damages against ORG in ORG ( \u201c the ORG \u201d ) .","On DATE the court dismissed the claim as unsubstantiated .","On DATE and DATE the judgment was upheld by ORG and ORG of GPE , respectively .","NORP In DATE the applicant also instituted proceedings against her former employer , the local police department , seeking recovery of some retirement - related and other payments .","On DATE ORG found against her .","On DATE the Dnipropetrovsk Regional Court of Appeal upheld the judgment . It stated in the operative part that the applicant had the right to challenge the decision before ORG within DATE .","NORP The applicant appealed in cassation .","On DATE the ORG declined jurisdiction to consider her appeal in cassation on the ground that the case was of a \u201c civil \u201d rather than an \u201c administrative \u201d nature and therefore ORG was the correct court of cassation .","The applicant resubmitted her appeal in cassation to ORG . On DATE the latter , referring to LAW , declined jurisdiction asserting that , in fact , ORG was the appropriate forum for the case .","The relevant domestic law and documents of ORG are quoted in the judgment in PERSON and GPE v. GPE ( nos . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57419","languageisocode":"ENG","respondent":"IRL","branch":"CHAMBER","date":1981,"docname":"CASE OF AIREY v. IRELAND (ARTICLE 50)","importance":2,"conclusion":"Costs and expenses - claim dismissed;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed","judges":"","text":["The PERSON case was referred to the ORG by ORG ( \" the Commission \" ) in DATE . The case originated in an application against GPE lodged with the Commission in DATE by Mrs. PERSON .","The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL of the ORG \u2019s judgment of CARDINAL DATE ( Series A no . CARDINAL , pp . CARDINAL ) .","By that judgment , the ORG held , inter alia , that there had been breach of Articles CARDINAL par . CARDINAL and CARDINAL ( article DATE , article CARDINAL) of the LAW by reason of the fact that the applicant did not enjoy an effective right of access to ORG for the purpose of petitioning for a decree of judicial separation ( points CARDINAL and CARDINAL of the operative provisions and paragraphs CARDINAL and CARDINAL of the reasons , ibid . , pp . CARDINAL , CARDINAL and DATE ) .","At the hearing of CARDINAL DATE , the applicant \u2019s counsel had informed the ORG that , should it find a breach of the LAW , her client would seek just satisfaction under LAW ) under CARDINAL headings : effective access to a remedy for breakdown of marriage ; monetary compensation for her pain , suffering and mental anguish ; and monetary compensation for costs incurred , mainly ancillary expenses , fees for lawyers and other special fees .","In its aforesaid judgment , the ORG reserved the whole of the question of the application of LAW ) . The Commission was invited to submit to the ORG , within DATE from the delivery of the judgment , the ORG \u2019s observations on that question , including notification of any settlement at which the Government of GPE ( \" the Government \" ) and the applicant might have arrived ( point CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , ibid . , pp . DATE ) .","The above - mentioned time - limit was extended by the President several times , on the last occasion until DATE .","On DATE , the Secretary to the Commission , acting on the Delegates\u2019 instructions , transmitted to the registry copies of correspondence setting out in detail the course of negotiations between the ORG and the applicant and revealing that the applicant had rejected a \" without prejudice \" offer by the ORG to pay to her MONEY in full and final satisfaction of her claims . At the same time , the Secretary stated that the Delegates were of opinion that there was no useful basis on which efforts to reach a settlement could be pursued and that they submitted to ORG that an award under LAW ) should be made \" on the basis of the above offer \" .","By letter of CARDINAL DATE , ORG informed the Deputy Registrar , inter alia , that the Government consented to an award of \u00a3 MONEY . On DATE , the Secretary to the ORG transmitted to the ORG a telex received from the applicant \u2019s legal representative indicating that the applicant did not consider this amount to be fair and reasonable and requested an award in line with her earlier submissions ( see paragraph CARDINAL below ) . On DATE , the Agent wrote to the Registrar to advise him that , although her Government disputed the applicability of LAW ) to the present case and although they considered a sum of \u00a3 MONEY - which they had initially offered by way of settlement - to be an adequate award , they remained willing to consent to an award of \u00a3 MONEY .","During the course of the negotiations , proposals for a settlement had been put forward on the applicant \u2019s behalf which may be summarised as follows :","a ) Mrs. PERSON sought an undertaking from the Government to indemnify her against any future legal costs and expenses reasonably incurred in pursuing before the NORP courts the remedy of judicial separation ( \" the domestic costs \" ) .","b ) Compensation was requested in respect of :","- travelling and miscellaneous expenses : CARDINAL ;","- loss on re - housing : \u00a3 CARDINAL ;","- legal costs and expenses referable to the proceedings before LAW ( \" the GPE costs \" ) : \u00a3 MONEY .","c ) It was alleged that Mrs. PERSON had suffered severe mental anxiety and that her own and her children \u2019s health had been adversely affected ; further , her inability for financial reasons to obtain a maintenance or garnishee order in ORG was said to have caused her constant financial difficulties , to have obliged her to take unsuitable employment and to have resulted in her children \u2019s being denied normal educational facilities and opportunities . The applicant \u2019s solicitors suggested a figure of \u00a3 MONEY in respect of this item .","On DATE , Mrs. PERSON applied , under ORG introduced in GPE on DATE , for legal aid in order to petition for judicial separation . However , the competent office informed her on DATE that she appeared to be ineligible on the basis of the means test .","On DATE , the Secretary to ORG informed the Registrar that , should the applicant not be granted legal aid , the Delegates would regard it as an important element in any award under LAW ) that her legal costs for a separation action be underwritten by the ORG . The Secretary also transmitted to the registry a copy of a letter received from the applicant \u2019s solicitors , Messrs. PERSON O\u2019Connor and Company , in which they requested that , if she were denied legal aid , she should be awarded an additional sum to enable her to instruct solicitor and counsel to represent her in separation proceedings .","On DATE , the Agent of the Government wrote to the Registrar in the following terms .","\" ...","In the light of the information provided by PERSON , O\u2019Connor and Company indicating that Mrs. PERSON , whose financial position appears to have improved since the events which gave rise to the ORG \u2019s judgment in her case , may not be granted legal aid under the Scheme and in view of the course of the proceedings in this particular case , my Government has decided to underwrite her reasonable costs of retaining Solicitor and Counsel for the purpose of taking proceedings for a legal separation , such costs to be taxed as between solicitor and client ( i.e. independently assessed by ORG ) in default of agreement thereon between Mrs. PERSON and the Government .","... \"","The Secretary to ORG transmitted to the Registrar on DATE a copy of a letter of DATE from ORG and Company , which read :","\" ... We quote from our client \u2019s letter of instructions to us \u2018 I accept the ORG \u2019s offer of costs for my legal separation but reject their offer of CARDINAL ORG etc . , from which you will see that we will be instituting proceedings against Mr. PERSON on behalf of Mrs. PERSON claiming a legal separation and relying on the Government \u2019s undertaking to underwrite our client \u2019s costs in the matter .","... \"","In accordance with a request by the President of the ORG , the Secretary to the ORG filed certain documents with the registry on DATE .","Having consulted , through the Registrar , the Agent of the Government and the Delegates of the Commission , the ORG decided on DATE that there was no call to hold oral hearings .","Mr. O\u2019Donoghue , the elected judge of NORP nationality who had taken part in the adoption of the judgment of DATE and whose term of office expired on DATE , was in principle called upon to continue to sit in this case ( Article CARDINAL par . CARDINAL of LAW par . CARDINAL of ORG ) ( article DATE ) . However , on account of his inability to attend , his place was taken by his successor , Mr. PERSON ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5348","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2000,"docname":"SALAMAN v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson;Nicolas Bratza","text":["The applicant is a NORP citizen born in DATE and residing in GPE , GPE , GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was appointed an executor and beneficiary under the will of the deceased B , a freemason , who died in DATE . This professionally drawn will , dated DATE , left a large part of the estate to the applicant subject to a life interest in the residuary estate to B \u2019s brother , PERSON applicant states that B told him that P was also a freemason . The Government have provided a letter from ORG of GPE stating that they had no trace of P as a member .","On DATE , B made a manuscript codicil endorsed on the back of a photocopy of the will by which he purported to revoke the will without making any other will in its place . It was purportedly witnessed by CARDINAL persons present at the time . The applicant complained to the police about the codicil after B \u2019s death but the police did not find any evidence of criminal conduct .","P applied to ORG for a declaration that the will had been validly revoked . The applicant states that he wished to produce in evidence tape recordings of a phone conversation between , amongst others , B and a friend . Although the tapes were not produced , a transcript of CARDINAL tape appears in one of the police statements which was before the judge . CARDINAL of P \u2019s witnesses were freemasons . The evidence before the court made reference to B \u2019s involvement in freemasonry . In his application , the applicant alleged that P \u2019s counsel and solicitor were also freemasons . The Government have provided letters from both in which they stated that they were not , and never had been , freemasons .","On DATE , the deputy ORG judge , Mr PERSON , declared that the will had been validly revoked by the codicil , ordered that letters of administration be granted to P and ordered the applicant to pay P \u2019s costs . The result of this order was that B died intestate and the entirety of his estate passed to P. The applicant had been legally represented until shortly before the trial when he dispensed with legal assistance and conducted his case in person before the judge .","P died on a date unspecified in DATE , leaving no surviving children or spouse .","The applicant appealed to ORG , claiming inter alia that the evidence as to the attestation of the will was inconsistent , that the judge disallowed the admission of tapes in evidence , that P failed to disclose documents or did so at a late stage , that the judge did not explain why he made a costs order and that the judge erred in concluding that the codicil was validly executed , that B knew what he was signing and that he was not the victim of undue influence .","In its decision of CARDINAL DATE , ORG ( Lord Justice Rose , Lord Justice PERSON and Lord Justice PERSON ) found that there were no flaws in the judge \u2019s essential findings or conclusion . Further it was noted that the applicant had not made any formal application for the admission of the tapes in evidence but that in any event it appeared unlikely that this would have influenced the trial judge CARDINAL way or the other . ORG unanimously held that there was no substance to the appeal and made an order for costs against the applicant . On DATE , ORG refused leave to the applicant to appeal to ORG .","On DATE , the applicant petitioned ORG for leave to appeal upon similar grounds . This was rejected by ORG on DATE .","The applicant alleges that he subsequently learnt that the trial judge was a freemason , and received confirmation that CARDINAL of ORG judges Lord Justice PERSON was also a freemason . At the time of the hearing the applicant states that there would have been no means of discovering this . A letter provided by the Government indicates that the applicant was aware of Lord Justice PERSON \u2019s membership by DATE at the latest .","In his letter dated DATE , Lord PERSON ( now a Law Lord in ORG ) did not recall being aware that either the deceased or plaintiff was a freemason but even if it was mentioned in the papers it would have made no impression on him . He pointed out that there were CARDINAL lodges in GPE and CARDINAL masons , the overwhelming majority of whom were complete strangers . As masons , they shared common interests , as did those who played golf or collected stamps . They owed each other no special obligations that they did not owe to others . They acknowledged the claims of charity but beyond this the notion that masons were obligated to support each other or protect each other \u2019s property was a complete myth .","In his letter dated DATE , PERSON recalled that he was aware during the proceedings that B had been a freemason as it had received fleeting mention . He also recalled that there were references in the documents to CARDINAL or CARDINAL witnesses being freemasons . He was not aware that P was alleged to be a freemason . However , this aspect was never an issue of feature in the case . At no time did it appear to him to have such a bearing or connection with the case as to call for a declaration of interest .","B. Relevant domestic law and practice","Freemasonry in GPE","According to a Parliamentary Home Affairs ORG report ( see below ) , freemasonry is a predominantly social organisation which plays a significant role in charitable activities , donating MONEY per year to charitable causes . In their evidence to ORG , ORG estimated their active lodge membership as CARDINAL .","NORP belong to a lodge , each lodge having on average CARDINAL members . Lodge meetings typically consist of a social dinner and the acting out of a series of CARDINAL - act plays by members . Members take an oath to abide by particular principles , including obedience to God and the law , the practice of morality and charity and basic principles of good citizenship . Members also take oaths of mutual support . In its written evidence to ORG , ORG stated that a PERSON \u2019s duty as a citizen must always prevail over any obligation to other NORP .","Although in the past , freemasons adopted an attitude of secrecy , since DATE there has been a change . Freemasonry now publishes leaflets , its rule book and DATE book . Nor is there any obligation on a freemason to keep his membership of the organisation secret .","Freemasonry and the judiciary","In a Memorandum from the Lord Chancellor \u2019s Department to ORG entitled \u201c PERSON in the NORP \u201d dated DATE it was stated :","\u201c CARDINAL.CARDINAL . Judges ... are bound by the judicial oath which they take on appointment ...","In honouring this oath , a judge can be expected to have full regard to the law on disqualification on grounds of interest or bias . Recent authority on this area of the law can be found in the judgment of ORG case of NORP v. PERSON [ DATE ] ORG .","The law as elucidated in NORP v. PERSON disqualifies a person automatically from taking a judicial decision if she or he has any pecuniary or proprietary interest in the outcome of the proceedings . Where a judge has an interest other than a pecuniary or proprietary one , the law disqualifies him or her from adjudicating in any cases where circumstances point to a \u201c real danger \u201d ... of bias in relation to a party or an issue involved in the case , each case falling to be considered on it own facts .","If a judge finds that he is acquainted with , or has any other sort of relationship with , a person involved in a case or with the subject matter of the case , then the judge must consider whether the nature of the relationship would ... be such as to create a real danger of bias . This would apply to an acquaintance or relationship resulting from membership of the freemasons just as it would to any other sort of relationship . If the judge sitting decides that the relationship would be regarded as creating a real danger of bias , then the judge should disqualify himself from adjudicating on the matter ...","The judicial oath overrides any commitment which might be made as part of a person \u2019s membership of the freemasons , and the Lord Chancellor has no reason to believe that freemasons who take the judicial oath can not be relied upon to honour it . \u201d","In DATE , the Parliamentary Home Affairs Select Committee published a report entitled \u201c PERSON in the Police and the Judiciary \u201d which concluded , inter alia :","\u201c The ORG conclude that , when the oaths are read in context , there is nothing in them that would appear sinister ; and nothing in the evidence we have heard that would show a conflict between the oath taken by a judge or policeman and that taken by a freemason .","We do not believe that there is anything sinister about freemasonry , properly observed , and are confident that freemasonry itself does not encourage malpractice . \u201d ( paragraph CARDINAL )","\u201c It is obvious that there is a great deal of unjustified paranoia about freemasonry and we have no wish to add to it ... We believe however that nothing so much undermines public confidence in public institutions as the knowledge that some public servants are members of a secret society CARDINAL of whose aims is mutual self - advancement - or a column of mutual support to use the masonic phrase ... The solution is disclosure . We recommend that police officers , magistrates , judges and crown prosecutors should be required to register membership of any secret society and that the record should be available publicly . However , it is our firm belief that the better solution lies in the hands of freemasonry itself . By openness and disclosure , all suspicion would be removed and we would welcome the taking of such steps by ORG . \u201d ( paragraph CARDINAL )","The Government responded to the ORG by announcing on CARDINAL DATE the setting up of a voluntary register . New recruits to the judiciary would be required to register their membership of the NORP . The ORG Secretary stated that he would be requesting existing judges to join voluntary registers . The Government would address the need for legislation having regard to the extent of compliance with voluntary registers .","According to the Government \u2019s provisional figures , PERCENT of the professional judiciary have responded to the invitation to declare whether they were freemasons or not . Of those that responded , PERCENT declared themselves to be freemasons ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60762","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2002,"docname":"CASE OF TOSI v. ITALY","importance":4,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","The applicant is the owner of an apartment in GPE , which she had let to M.A.H. on DATE .","In a writ served on the tenant on CARDINAL DATE the applicant informed the tenant that she intended to terminate the lease and summoned the tenant to appear before ORG .","By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises must be vacated by DATE .","On DATE , the applicant served notice on the tenant requiring him to vacate the premises .","On DATE she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on CARDINAL DATE .","DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as , under the statutory provisions providing for the staggering of evictions , the applicant was not entitled to police assistance in enforcing the order for possession .","On DATE , the applicant repossessed the premises with the assistance of the police .","The relevant domestic law is described in the ORG \u2019s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77745","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2006,"docname":"CASE OF FOLDES AND FOLDESNE HAJLIK v. HUNGARY","importance":1,"conclusion":"Violation of P4-2-2 in respect of the first applicant;Remainder inadmissible;Non-pecuniary damage - financial award","judges":"Andr\u00e1s Baka;Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa","text":["The applicants were born in DATE and DATE respectively and live in LOC .","On DATE a company , ORG , laid charges of fraudulent bankruptcy and other offences against the applicants , then a married couple . Subsequently , ORG instituted criminal proceedings against the first applicant . On DATE he was questioned as a suspect .","On DATE the ORG prohibited the alienation of the applicants\u2019 real property and their cars . On DATE ORG upheld this measure , observing that it was justified because it pursued the aim of guaranteeing the satisfaction of claims brought by the potential civil parties .","Meanwhile , on DATE the proceedings were extended to include the second applicant as a defendant .","On DATE ORG withdrew the first applicant \u2019s passport until the termination of the criminal proceedings , under sections CARDINAL and CARDINAL of LAW ( Law no . DATE ) , in order to secure his availability for trial . That decision was confirmed by the Minister of the ORG on DATE .","On DATE ORG preferred a bill of indictment against the applicants , charging them with fraudulent bankruptcy and other offences .","Meanwhile , the first applicant requested ORG to review the administrative decision ordering the withdrawal of his passport . On DATE ORG upheld that decision , which in its view had been delivered in accordance with the law .","After QUANTITY hearings DATE and DATE , on DATE ORG convicted the applicants and sentenced them to DATE and CARDINAL months\u2019 imprisonment and DATE and CARDINAL months\u2019 imprisonment respectively , these sentences being suspended for DATE . The court relied on the testimonies of witnesses , extensive documentary evidence and the opinion of CARDINAL experts . In its reasoning , it appreciated , as a mitigating factor , the \u201c very long time \u201d which had elapsed since the commission of the offences , finding that this delay could not be imputed to the applicants .","NORP On appeal , on DATE , the Borsod - Aba\u00faj - Zempl\u00e9n County ORG quashed ORG judgment on account of a serious procedural shortcoming and remitted the case to the first - instance court .","NORP In reply to a request by the applicants to have the case file photocopied , on DATE ORG invited them to specify which particular elements they wished to have copied . The court pointed out that the photocopying of the whole case file , which contained CARDINAL pages ( and was in any event available for personal consultation in its entirety ) , was impossible and also unnecessary , given that many documents were of little relevance .","In the resumed proceedings , CARDINAL hearings were held DATE and DATE .","On CARDINAL DATE ORG convicted the applicants of the offences of breaching accountancy rules ( punishable by up to CARDINAL years\u2019 imprisonment under LAW ) and of fraudulent bankruptcy ( punishable by up to MONEY imprisonment under LAW ) , and fined them each MONEY .","On DATE the FAC dismissed an appeal by the applicants . It ordered that the measures attaching the applicants\u2019 assets be discontinued .","On DATE ORG review bench quashed the second - instance judgment and remitted the case to ORG .","In the resumed second - instance proceedings , on DATE ORG upheld in essence the applicants\u2019 convictions and fines . It dismissed the civil party \u2019s claims and lifted the prohibition on the alienation of the applicants\u2019 assets . In its reasoning , it reiterated :","\u201c [ I]n the process of imposing \u2018 legal detriments\u2019 [ jogh\u00e1tr\u00e1ny ] , the courts fully recognised the extraordinarily protracted nature of the proceedings as an important mitigating factor , and appreciated this circumstance when determining the punishments . \u201d","NORP In reply to a complaint in the applicants\u2019 appeal concerning the non - attendance of the experts at the court hearings , the court observed that their opinions had been added to the case file , since they had been extensively presented at the hearing on DATE . Despite an invitation by the court to do so , the applicants did not comment in writing on those opinions in the ensuing proceedings . Given that the opinions had at all times been available to the defence , copies had been dispatched to the parties , and the opinions had been explained at a hearing , the court was satisfied that the principle of \u201c direct and oral proceedings \u201d had not been infringed . In any event , it was convinced that , given the complexity of the case and the extensiveness of the opinions ( amounting to several volumes ) , any meritorious criticism thereof would only have been possible in writing and the experts \u2013 whose views were otherwise essentially convergent DATE could likewise have reacted to such criticism in writing .","The judgment became final on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58337","languageisocode":"ENG","respondent":"ROU","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF BRUMARESCU v. ROMANIA","importance":1,"conclusion":"Violation of Art. 6-1 by reason of lack of fair hearing;Violation of Art. 6-1 by reason of refusal of right of access to court;Violation of P1-1;Just satisfaction reserved","judges":"L. Mihai;Luzius Wildhaber;Nicolas Bratza","text":["In DATE the applicant \u2019s parents had a house built in GPE . DATE they let the ground floor to the PERSON brothers , the uncles of the third party intervening in the case , Mr PERSON .","NORP In DATE the ORG took possession of the applicant \u2019s GPE house in GPE , allegedly under Decree no . CARDINAL on nationalisation . The applicant \u2019s parents were never informed of the grounds or legal basis for that deprivation of property . They were , however , allowed to continue to live in CARDINAL of the flats in the house as tenants of the ORG .","In DATE , pursuant to Law no . CARDINAL\/CARDINAL , the ORG sold the Mirescu brothers the flat which they had hitherto occupied as tenants . The intervener , Mr PERSON , and his sister , ORG , inherited the flat in DATE . After his sister \u2019s death in DATE the intervener was left as the sole successor in title to the flat .","In DATE the applicant , as the beneficiary of his GPE estate , brought an action in ORG ( \u201c ORG \u201d ) seeking a declaration that the nationalisation was null and void on the ground that Decree no . CARDINAL\/CARDINAL provided that the property of employees could not be nationalised and his parents had been employed at the time of the nationalisation of their house . It is not clear from the documents before the ORG whether the applicant informed ORG of the sale by the ORG to the Mirescu brothers in DATE .","In a judgment of DATE ORG held that the nationalisation of the applicant \u2019s GPE house under Decree no . ORG had been a mistake , as his parents had belonged to a category of persons whose property the decree exempted from nationalisation . The court went on to hold that the ORG had obtained possession by duress and so could not rely on prescription to establish title . It also ruled that the ORG could not have acquired title to the house under Decree no . TIME or Decree no . CARDINAL\/CARDINAL since those instruments had been contrary to LAW and DATE respectively . The court therefore ordered the administrative authorities DATE namely the mayor of GPE and a ORG - owned company , ORG , which managed ORG - owned housing DATE to return the house to the applicant .","No appeal was lodged and the judgment became final and irreversible since it could no longer be challenged by way of an ordinary appeal .","On DATE the mayor of GPE ordered the house to be returned to the applicant and on DATE the C. company complied .","As of that date the applicant ceased to pay rent on the flat he was occupying in the house .","The applicant began paying land tax on the house on DATE and continued doing so until DATE ( see paragraph CARDINAL below ) .","On an unknown date the Procurator - General of GPE , acting at the instance of Mr PERSON , lodged an application ( recurs \u00een anulare ) with ORG to have the judgment of DATE quashed on the grounds that ORG had exceeded its jurisdiction in examining the lawfulness of the application of Decree no . CARDINAL\/CARDINAL .","The hearing before ORG was set down for DATE . Mr PERSON was not invited to take part in the proceedings . On DATE of the hearing , the applicant requested an adjournment as his lawyer was absent through illness .","ORG refused that request and proceeded to hear oral argument , after which it reserved judgment until DATE , the applicant being ordered to file written submissions before that date .","In those submissions , the applicant requested ORG to dismiss PERSON application . He argued , first , that Decree no . ORG had been incompatible with the DATE LAW , both in that it had been published only in part and in that it had breached the principle that no expropriation should be effected save in the public interest and after payment of fair compensation . Secondly , he submitted that , since his parents had been employees at the time of the nationalisation , the decision to nationalise their house had contravened the terms of the decree , which provided that dwellings belonging to employees could not be nationalised . Lastly , the applicant relied on LAW of DATE , which guarantees unrestricted access to the courts .","On DATE ORG quashed the judgment of DATE and dismissed the applicant \u2019s claim . It held that property could be acquired by way of legislation , noted that the ORG had taken the house on DATE on which Decree no . CARDINAL\/CARDINAL on nationalisation had come into force and reiterated that the manner in which that decree had been applied could not be reviewed by the courts . Accordingly , ORG could not have found that the applicant was the rightful owner of the house without distorting the provisions of the decree , thus exceeding its powers and encroaching on those of the legislature . ORG confirmed that former owners were entitled to bring actions for recovery of possession but held that the applicant in the case before it had not established his title , whereas the ORG had demonstrated title under the nationalisation decree . In any event , provision as to redress for any wrongful seizure of property by the ORG would have to be made in new legislation .","Thereupon , the tax authorities informed the applicant that the house would be reclassified as ORG property with effect from DATE .","On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged in GPE pursuant to Law no . DATE ( \u201c the ORG \u201d ) . He submitted that he had been dispossessed of his house in DATE in breach of Decree no . CARDINAL\/CARDINAL on nationalisation ; that ORG had held that that deprivation of property had been unlawful in a final judgment of DATE ; and that he was therefore entitled to be reinstated as the owner of the whole house .","In a report drawn up in DATE the valuation board established under PERSON no . NORP valued the applicant \u2019s house at MONEY ( ROL ) , of which the flat occupied by the applicant accounted for ROL CARDINAL,CARDINAL,CARDINAL .","On DATE the ORG vested ownership of the flat rented by the applicant in him and awarded him financial compensation for the rest of the house . Having regard to section CARDINAL of Law no . CARDINAL , which put a ceiling on compensation , and to the ceiling applicable in DATE \u2013 ROL CARDINAL,CARDINAL,CARDINAL \u2013 the ORG awarded him ROL CARDINAL .","On DATE the applicant challenged that decision in ORG , attacking the ORG \u2019s refusal to return the whole house to him and pointing out that no grounds for that refusal had been given . He argued that in his case , where there had been an unlawful deprivation of property , PERSON no . DATE which concerned lawful expropriations \u2013 did not apply . Accordingly , his only means of protecting his right of property was an action for recovery of possession . However , since he had already brought such an action , and since ORG , in a final judgment of DATE , had held him to be the owner of the house , he believed himself to be debarred from bringing a fresh action for recovery of possession . Consequently , he sought a declaration that he was the owner of the whole house and stated that he was not seeking compensation under PERSON no . LANGUAGE .","That application was dismissed on DATE . The applicant appealed and the proceedings are currently pending in ORG .","LAW provides :","\u201c Everyone shall be entitled to apply to the courts for protection of his rights , freedoms or legitimate interests .","The exercise of this right shall not be restricted by any statute .","... \u201d","The relevant provisions of this LAW read :","\u201c The Procurator - General may , of his own motion or on an application by the Minister of ORG , apply to ORG for any final judicial decision to be quashed on any of the following grounds :","NORP that the court in question has exceeded its jurisdiction ;","NORP ... \u201d","\u201c An application for a judicial decision to be quashed may be made at any time . \u201d","Article CARDINAL was amended as follows :","\u201c Article CARDINAL : An application under LAW for a judicial decision to be quashed may be made within DATE on which the judicial decision in question becomes final ... \u201d","The relevant provisions of this decree read :","\u201c ... in order to ensure the proper management of dwellings which wealthy capitalists and exploiters who possess a large number of properties have allowed to fall into dilapidation as a means of sabotage ; [ and ]","In order to deprive exploiters of an important means of exploitation ;","The immovable property appearing in the schedules ... annexed to and forming part of this decree shall be nationalised . The listed property comprises :","immovable property belonging to former industrialists , owners of large estates , bankers , owners of large trading enterprises and other representatives of the wealthy capitalist class ;","immovable property belonging to real - estate exploiters ... \u201d","\u201c The immovable property of workers , civil servants , small artisans , persons working in intellectual professions and retired persons shall be excluded from the scope of this decree and shall not be nationalised . \u201d","The relevant provisions of this decree read :","\u201c Subject to its obligation to apply the criteria laid down ... in LAW [ of Decree no . MONEY ] , the ORG may amend the annexes [ containing the schedule of immovable property to be nationalised ] to [ that ] decree .","The ORG may also decide not to apply the nationalisation provisions to any flat or [ other ] immovable property . \u201d","In a number of cases ORG of ORG upheld judgments of lower courts asserting their jurisdiction to deal with claims concerning immovable property that had been nationalised , including property nationalised under Decree no . CARDINAL\/CARDINAL . In a judgment of DATE ( no . CARDINAL ) , for instance , it held , on the issue whether the courts had power to deal with cases concerning the application of Decree no . CARDINAL :","\u201c ... in ruling on the applicant \u2019s claim for recovery of possession , and in allowing it , the courts , which have general jurisdiction under the law to determine civil disputes , merely applied the terms of the decree . To be more precise , they applied those of its provisions that forbid the nationalisation of certain immovable property and those which require such property to be returned in the event of an erroneous or improper application of the decree . \u201d","On DATE the full ORG decided by a majority of CARDINAL to twenty to depart from ORG previous decisions , holding :","\u201c [ T]he courts do not have jurisdiction to impugn Decree no . ORG or to order that property nationalised under its provisions be returned ... ; legislation alone can bring the nationalisations carried out under Decree no . CARDINAL\/CARDINAL into accord with the provisions of the present LAW concerning the right of property ... \u201d","On DATE the full ORG of Justice unanimously decided to depart from its ruling of DATE that the courts did not have jurisdiction in matters concerning infringements of the right of property committed DATE . It held :","\u201c [ T]he courts have jurisdiction to entertain any action concerning an alleged infringement of the right of property or other rights in rem where such an infringement occurred DATE . \u201d","On DATE ORG ruled on the constitutionality of a bill to regulate the legal status of residential property which had passed into ORG ownership . As to whether the owners of immovable property which the ORG had vested in itself improperly or without legal authority could sue for return of their property or obtain compensation , it held :","\u201c ... The situation is different in relation to dwellings which became ORG property through an unlawful administrative act or simply de facto \u2013 that is to say without any legal authority , the ORG \u2019s ownership having no basis in law . In such cases the individual \u2019s legal right to the property has never been extinguished , with the result that , since the ORG is not the owner , such property can not be covered by a statute whose object is to regulate the legal status of dwellings which have passed into ORG ownership . In other words , ... the measures which the bill before us seeks to introduce are not applicable to dwellings not legally vested in the ORG .","If the bill were to treat the ORG as owning immovable property which it had taken without legal authority , it would be conferring ownership on the ORG retrospectively , or else introducing a mechanism not envisaged by the DATE LAW for transforming individual ownership into ORG ownership , and that can not be accepted .","It follows that this ORG must allow the objection that this part of the bill , in so far as it deals with immovable property taken without legal authority by the ORG or other artificial persons , is incompatible with the LAW ...","It is for ORG to decide , when amending the bill , whether to make provision for persons who have been deprived of their dwellings by the ORG without legal authority , or for the successors in title of such persons , to be able to benefit from the LAW if they choose not to embark on the slow , uncertain and costly course of bringing an action for recovery of possession ... \u201d","NORP The relevant provisions of this Act read :","\u201c Individuals who formerly owned residential property which passed lawfully into the ownership of the ORG or of another artificial person after DATE and which was still in the possession of the ORG or another artificial person on DATE shall be entitled to benefit , by way of reparation , from the measures in this LAW .","The provisions of this Act shall apply equally to the successors in title of such former owners , subject to existing statutory provisions . \u201d","\u201c The persons referred to in LAW shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant . In respect of other flats , those persons shall receive compensation as provided in LAW \u201d","\u201c The amount of compensation to be awarded to former owners or their successors in title in respect of flats which have not been returned to them , or the sale price of such flats , as the case may be , shall be determined in accordance with Decree no . CARDINAL , legislative Decree no . GPE and Law no . CARDINAL\/CARDINAL . The value of the appurtenant land shall be determined according to the criteria ( Document DATE of CARDINAL DATE ) for identifying and valuing land held by ORG - owned commercial companies ... The values so determined shall be converted to present - day levels by means of multipliers which may not be lower than the rate of increase in the national average salary over the relevant period .","Neither the total value of a flat which is returned nor the total amount of compensation due for a flat which is not returned and for the appurtenant land may exceed the cumulative total of the national average salary for DATE over DATE expiring on the date on which the compensation is assessed .","Where a flat whose value , calculated according to the rules laid down in the first paragraph of this section , exceeds the total referred to in the second paragraph is returned , pursuant to section CARDINAL , to its former owner , his heirs or living relatives to the second degree of consanguinity , those persons can not be obliged to pay the difference .","The amount of compensation due at DATE levels under the above provisions shall be calculated on DATE of payment , on the basis of the national average salary for DATE .","For the purpose of implementing this LAW , an extrabudgetary fund shall be established , on which ORG may draw and into which shall be paid :","( a ) the proceeds of the sale of non - returned flats , including payments in full , deposits , DATE instalments and interest ( less commission of PERCENT of the value of each flat ) ; and","( b ) the proceeds of government bonds issued for the purpose of financing the fund , as provided in PERSON no . CARDINAL\/CARDINAL on public borrowing .","The above fund may be drawn on for the following purposes , in order of priority :","( a ) to pay the compensation due under the provisions of this LAW to owners or their successors in title ;","( b ) to redeem the bonds issued and cover the expenses entailed by their issue ; and","( c ) to build housing to be allocated in the first instance to tenants in the situation referred to in section CARDINAL(CARDINAL ) . \u201d","On DATE the government adopted decision no . CARDINAL implementing PERSON no . DATE . The decision provided that immovable property which had passed into ORG ownership under a legislative provision was to be regarded as property legally vested in the ORG . It also specified that PERSON no . DATE did not apply to immovable property held by the State where its title was not based on any legislative provision .","On DATE the government adopted decision no . CARDINAL\/CARDINAL to supplement decision no . CARDINAL . Section CARDINAL(CARDINAL ) of decision no . CARDINAL\/CARDINAL provided that , in order for property to be defined as having been acquired by the State under Decree no . CARDINAL\/CARDINAL , it had to have been acquired in accordance with Articles I \u00a7 \u00a7 DATE and II of the decree and the person referred to in the lists drawn up under the decree as the owner of the property had to have been the true owner at the date of the nationalisation .","Following government decision no . CARDINAL of DATE , former owners who had succeeded in obtaining final court judgments ordering their property to be returned , only to see those judgments quashed by ORG on an extraordinary application by the ORG , brought fresh actions for recovery of possession . The plea of res judicata raised in those new actions was not treated in the same way by all courts , as appears from the following .","\u201c ... the property sought to be recovered has already been the subject matter of proceedings between the same parties , resulting in judgment no . CARDINAL of DATE ( now final and enforceable ) , in which this ORG found for I.P. and declared him to be the owner of the property ...","The Procurator - General applied for that judgment to be quashed and on DATE ORG did quash it and substituted its own judgment dismissing ORG \u2019s claim ...","... in accordance with LAW , which provides that \u2018 the principle of res judicata applies where a fresh action concerning the same subject matter , based on the same cause of action , is commenced between the same parties acting in the same capacities\u2019 , this ORG finds that there have already been proceedings between these same parties in respect of the same property and that those proceedings have been determined by ORG ...","\u2026 that being so , this ORG accepts the plea of res judicata and holds that it can not entertain the plaintiff \u2019s claim . \u201d","\u201c ... this ORG finds that Decree no . CARDINAL\/CARDINAL was unlawfully applied to the building owned by the plaintiff ... , orders that it be returned to her and dismisses the plea of res judicata ... \u201d","The relevant provisions of this LAW read :","\u201c CARDINAL . Property acquired by the ORG DATE and DATE , provided that it passed into ORG ownership lawfully , that is to say in a manner not contrary to the LAW , to international treaties to which GPE was a party or to any legislation in force at the time at which it passed into ORG ownership , shall likewise form part of the public or private property of the ORG or other public authorities .","Save where it is governed by special reparation laws , property held by the ORG without valid legal authority , including property acquired by way of a transaction voidable for lack of true consent , may be claimed by former owners or their successors in title .","The courts have jurisdiction to determine whether or not the legal authority is valid . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-118040","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2013,"docname":"CASE OF REZNIK v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)","judges":"Dmitry Dedov;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["The applicant was born in DATE and lives in GPE . He is a lawyer and President of ORG .","On DATE Mr Khodorkovskiy , a co - owner of the Yukos company , was charged with criminal offences and placed in custody . On DATE he was transferred to special - purpose remand centre IZCARDINAL\/CARDINAL in GPE operating under the authority of ORG of GPE ( hereinafter \u201c the remand centre \u201d ) .","On DATE a lawyer , PERSON , accepted to represent Mr GPE in the criminal proceedings .","On DATE PERSON visited her client in the remand centre . On leaving the centre , she was stopped by a prison inspector , PERSON , who accused her of carrying unauthorised material that Mr PERSON had given her .","It appears from a personal inspection report ( \u043f\u0440\u043e\u0442\u043e\u043a\u043e\u043b \u043b\u0438\u0447\u043d\u043e\u0433\u043e \u0434\u043e\u0441\u043c\u043e\u0442\u0440\u0430 ) of the same date that Mr B. \u201c examined the belongings and clothing of the lawyer , Ms A. \u201d and seized CARDINAL documents : a printed document concerning the case against Mr GPE \u2019s co - defendant , and a torn handwritten note . The report was signed by PERSON and CARDINAL prison officers who were present during the search . The parties agreed that CARDINAL of them had been a man ( Mr F. ) ; the identity and sex of the second officer was in dispute : the Government claimed that it had been a woman , \u201c L - va \u201d ; the applicant insisted that it had been a man , \u201c L - vich \u201d .","The investigators claimed that the note had contained instructions about exercising influence on witnesses and interfering with the investigation . On DATE ORG asked ORG to disbar PERSON for acting in breach of the law and the lawyers\u2019 code of ethics . The applicant , as President of ORG , publicly criticised the request by ORG .","On DATE the ORG channel invited the applicant and PERSON , the Director of ORG of ORG , to the talk show , \u201c The Country and the World \u201d ( \u00ab \u0421\u0442\u0440\u0430\u043d\u0430 \u0438 \u043c\u0438\u0440 ORG ) , for a discussion of the incident involving PERSON The debate was broadcast live at TIME","NORP In TIME of the discussion the applicant asked Mr PERSON about his view on the events and the grounds for making the request for disbarment . PERSON did not give specific answers , stating that the issue was not within his competence .","The presenter then asked the applicant about the relationship between the GPE and ORG , implying that it was rather strained . The applicant denied that any tension existed and added :","\u201c I have to say that we have now examined the matter of lawyer PERSON There was no attempt to pass any note from Mr GPE outside the remand centre . There were no grounds for carrying out a search ( \u043e\u0431\u044b\u0441\u043a ) which , by the way , was performed by men who rummaged ( \u0448\u0430\u0440\u0438\u043b\u0438 ) about the body of the woman lawyer . Evidence obtained by criminal or unlawful means has no legal value . There is nothing , absolutely nothing , in PERSON records that could warrant her disbarment . \u201d","The presenter then gave the floor to PERSON , who said that there existed a normal professional relationship between ORG and ORG . The show ended .","On DATE , remand prison PERSON and warders PERSON and PERSON lodged defamation claims against the applicant and the ORG television company with ORG of GPE . They claimed that the applicant had falsely stated that male officers had \u201c rummaged \u201d about PERSON body and carried out a \u201c search \u201d on her , whereas they had merely \u201c inspected \u201d her documents . Since the domestic law made a distinction between a \u201c search \u201d ( \u043e\u0431\u044b\u0441\u043a ) and an \u201c inspection \u201d ( \u0434\u043e\u0441\u043c\u043e\u0442\u0440 ) , the applicant \u2019s statement amounted to an allegation of a breach of the NORP law that was false and damaging both to the professional reputation of the remand prison and to the honour and dignity of its officers . They sought a rectification and compensation in respect of non - pecuniary damage .","In the defamation proceedings the ORG heard many witnesses and , in particular , the warders of the remand prison who had taken part in the incident involving counsel PERSON of them , PERSON , testified as follows :","\u201c I received a phone call and I was invited to take part in the drafting of a report . When I arrived , PERSON , PERSON and PERSON were in the office . PERSON was drafting the report . A. snatched a piece of paper and began tearing it apart . We removed the document [ from her ] , I signed the report and left . \u201d","PERSON described the way in which the documents had been removed from her :","\u201c I was subjected to a humiliating procedure , as a woman and as a lawyer . They took the materials of the defence away from me by force . How is it possible to take the materials , without touching me , while I was holding onto them ? ... Could there be any contact , other than bodily contact , if I was clutching the materials to my chest and the prison employees were tearing them away from me ? It was not just my hands that they touched . [ They touched ] the clothing that was covering my body . \u201d","In the meantime , on DATE ORG formally rejected the ORG \u2019s request for PERSON disbarment . It found , in particular , that the inspection ( \u0434\u043e\u0441\u043c\u043e\u0442\u0440 ) carried out on the person of PERSON on DATE and the seizure of her materials had been unlawful .","On DATE the ORG gave judgment on the defamation claim , finding as follows :","\u201c It was established at the court hearing that on DATE a televised discussion between ... PERSON and the lawyer PERSON had been broadcast live on the ORG channel . The presenters did not edit the text of the interventions by Mr PERSON or PERSON ... PERSON was connected with the presenter via a direct link , the defendant PERSON was present in the studio . It can be seen from a video recording which the court examined ... that PERSON and the defendant made statements of a controversial nature . The participants put questions to each other and replied to questions from the presenters . ...","The court considers that the statements by the defendant [ Mr PERSON ] were simply an expression of his opinion on an event that had attracted public attention and was widely discussed at the time . During the show \u201c The Country and the World \u201d on DATE , a public official and a lawyer held a discussion in which they expressed different opinions on the same event . The statements by the defendant Mr PERSON were not offensive and did not damage the GPE honour , dignity or professional reputation . The defendant , in his reply to the presenter \u2019s question , did not mention either remand prison no . CARDINAL or the plaintiffs F. and B. ...","The plaintiff \u2013 remand prison no . DATE alleged a violation of the rights of individuals rather than those of prison no . CARDINAL . ... In the instant case , the statements by the defendant , PERSON , did not contain allegations about the plaintiff , remand prison no . CARDINAL , nor did Mr PERSON \u2019s statements damage its reputation . It follows that the claims by remand prison no . CARDINAL are unlawful and unjustified because the plaintiff seeks the rectification of allegations concerning its employees .","The claims by the plaintiffs F. and B. are likewise unjustified because the statements by the defendant did not mention any names , still less the plaintiff \u2019s names . Moreover , ... there was no mention of their place of work or place of residence , or of their appearance or characteristic features , their rank or their position ; the discussion was not accompanied by any photographs or video footage of the plaintiffs ; nor were their voices broadcast . It follows that the defendant \u2019s statements did not contain any information damaging to the honour or dignity of Mr F. or Mr B.","[ The court rejects as ] unfounded the arguments by remand prison no . CARDINAL to the effect that the discussion was preceded by footage showing a building with its postal address , which could have enabled television viewers to recognise PERSON remand prison no . CARDINAL . Neither PERSON nor PERSON mentioned remand prison no . CARDINAL in their replies . Moreover , it was the ORG channel that decided to broadcast the footage featuring the building with its address at the beginning of the show , but the plaintiffs have lodged no defamation claim against the channel ...","Having regard to the above - stated , the court finds that the claims are unjustified and must be rejected . \u201d","The remand centre , PERSON , and PERSON , all lodged statements of appeal .","On DATE the ORG quashed ORG judgment and granted the defamation claims by CARDINAL plaintiffs , finding as follows :","\u201c ... the conclusion of the [ district ] court to the effect that the statements made by the defendant in a live television show did not damage the reputation [ of the plaintiffs ] is not correct . The statements did damage the honour and dignity of the prison officers PERSON and PERSON and the professional reputation of remand prison no . CARDINAL because they actually contained an accusation that the male prison officers had searched the female lawyer in a degrading manner . ...","It can be seen from the statements by the witnesses PERSON and PERSON , the personal inspection report , and the conclusions of the Qualifications Panel of ORG that the prison officers did not carry out a search on PERSON , contrary to what PERSON alleged , but the [ district ] court did not take this fact into account ... The law distinguishes between the terms \u2018 inspection\u2019 and \u2018 ORG , and the defendant PERSON , a professional lawyer , could not have been unaware of that distinction . Although he had at his disposal reliable information that the prison officers had carried out an inspection of PERSON documents rather than searched her , he made untrue statements in a live television show ...","Further , the [ city ] court can not agree with the [ district ] court \u2019s conclusion that the defendant [ Mr PERSON ] did not identify any of the plaintiffs by name ... That conclusion contradicted the operative part of the judgment , in which the [ district ] court found that the incident ... had taken place on the premises of remand prison no . CARDINAL and concerned the removal of a note from PERSON ... The ORG channel showed the building at CARDINAL GPE NORP Street , and the defendant Mr PERSON later made the contested statements . In those circumstances , the professional reputation of remand prison no . CARDINAL had been undermined and it had standing to seek judicial protection from defamation . The plaintiffs F. and B. , who were employees of the remand prison and who had taken part in the inspection of [ PERSON ] papers ... also had standing to sue in defamation . \u201d","ORG ordered the applicant to pay MONEY ( RUB ) to each of PERSON and PERSON in respect of compensation for non - pecuniary damage . The ORG channel was ordered to broadcast a rectification .","Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .","Article CARDINAL provides that an individual may apply to a court with a request for the rectification of statements that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .","A personal inspection ( \u043b\u0438\u0447\u043d\u044b\u0439 \u0434\u043e\u0441\u043c\u043e\u0442\u0440 ) or an inspection of personal belongings may be carried out with a view to uncovering instruments or objects of an administrative offence ( LAW ) . Personal inspections must be carried out by a person of the same sex , in the presence of CARDINAL attesting witnesses ( \u043f\u043e\u043d\u044f\u0442\u044b\u0435 ) of the same sex ( LAW ) .","A suspect in a criminal case may be subjected to a body search ( \u043b\u0438\u0447\u043d\u044b\u0439 \u043e\u0431\u044b\u0441\u043a ) ( LAW ) . Body searches must be carried out by a person of the same sex , in the presence of attesting witnesses ( \u043f\u043e\u043d\u044f\u0442\u044b\u0435 ) or specialists of the same sex ( LAW ) .","The Pre - Trial Detention Act ( Law no . CARDINAL of DATE ) established that , if there were grounds to suspect visitors of passing prohibited objects , substances or food , prison officers were entitled to carry out an inspection of their clothes and belongings upon their entry or exit from the prison LOC ( part QUANTITY ) ."],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106159","languageisocode":"ENG","respondent":"MDA","branch":"ADMISSIBILITY","date":2011,"docname":"CASE OF GALUSCHIN v. MOLDOVA","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Mihai Poalelungi","text":["NORP The applicant was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practicing in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","NORP The applicant was charged with indecent acts committed on a fiveyear old girl , following a report made by her mother on DATE . On DATE the ORG acquitted him of all charges , finding that there had been no evidence that he had committed an offence . The court noted that the girl \u2019s mother had testified before it that she had had a dispute with the applicant on the morning in question and had filed the complaint against him in revenge , and not because he had in fact committed any offence . She had also coached her daughter on how to testify in order to incriminate the applicant . However , the court noted that both mother and daughter had later withdrawn their statements .","The judgment was upheld by ORG on DATE . The court noted the discrepancies between the statements made on DATE by the child and her mother and the subsequent change to their statements . It also noted that a psychiatric report on the girl had shown that she was prone to adult influence , while the testimony given by the girl to the investigating authority had ended after a teacher assisting the girl had noted her difficulty in formulating phrases and logically explaining her thoughts , which had made the continuation of the interview pointless . Statements made by CARDINAL witnesses during the investigation had confirmed the girl \u2019s tendency to be influenced by adults , but the prosecutor had not asked for their presence at the court hearing and they had therefore not been able to be questioned about their statements .","On DATE ORG quashed the judgment of DATE and ordered a rehearing of the case by ORG . The reason for the rehearing was that the lower court had failed to directly examine all the relevant evidence , such as hearing from the victim , her representative and other witnesses , but rather had simply relied on the documents in the case file .","The victim and her mother were summoned to the hearing at ORG on DATE , but they did not appear . In the meantime , on DATE , the mother sent a letter to the court stating that she fully supported her statements and those made by her child during the investigation . She did not ask for the case to be tried in her absence .","On DATE the ORG found the applicant guilty of the crime with which he had been charged . The applicant was absent from the hearing , even though he had been summoned to attend it . He claims that he never received the summons . A court - appointed defence lawyer was present .","The court did not hear any witnesses , including the girl and her mother . After the applicant \u2019s conviction , the mother wrote to ORG stating that she had never received a summons for the hearing of DATE and that she withdrew her declaration of CARDINAL DATE . The applicant claimed that the letter of DATE had been written by someone else , because the mother could not write in LANGUAGE script , yet the letter had been written in LANGUAGE script . No expert report to verify whether she had written the letter was ordered .","On DATE the lawyer appointed by the applicant lodged an appeal on points of law . In his appeal , the lawyer drew the court \u2019s attention to the reason for which ORG had sent the case for a rehearing on DATE , namely the failure of ORG to directly examine all the evidence . However , that court had allowed the same irregularity to occur in convicting the applicant . He also submitted that the absence of the victim , the mother and other witnesses , as well as the applicant , from the court hearing of DATE had prevented the defence from properly challenging the prosecutor \u2019s evidence . The prosecutor had simply read out the statements made by various individuals during the investigation , and the court had ignored the statements made by the mother and daughter before the first - instance court rejecting their previously made statements . The lawyer questioned the authorship of the letter of DATE . He finally relied on LAW .","On DATE ORG upheld the judgment adopted by the lower court , finding that it had fully examined the case . The court referred to the same evidence as that examined by ORG on DATE . The parties had been summoned but had failed to appear . However , their absence from the hearing had not prevented the court from continuing to examine the case . Moreover , the mother had signed a declaration in LANGUAGE script on DATE , which proved that she could write in that script and thus could have been the author of the letter of DATE .","On DATE the applicant was conditionally released from prison , DATE and DATE before the expiry of his prison term .","After communication of the present application to the respondent Government , on DATE ORG asked ORG to reopen the proceedings in the applicant \u2019s case .","On DATE ORG accepted that request . It found that ORG and ORG in their judgments of DATE and DATE respectively had breached the applicant \u2019s rights guaranteed under LAW , as well as under domestic law , by failing to directly examine witnesses and evidence before overturning the first - instance court \u2019s judgment . Moreover , they had examined the case in the applicant \u2019s absence despite the absence of evidence that he had been properly summoned and all reasonable measures had been taken to ensure his presence in court , and had done so in the absence of a clear waiver of the applicant \u2019s right to be heard by the courts . Moreover , ORG had failed to follow the indications made by ORG in its decision of DATE , which had been aimed precisely at ensuring the observance of procedural rules and at preserving the rights of the accused to a fair trial . The court therefore annulled the judgments of CARDINAL DATE and DATE and ordered a rehearing of the case .","On DATE the ORG found the applicant guilty as charged . In reaching this conclusion , the court heard the applicant and his lawyer , the victim and her mother , as well as a teacher and has examined the psychiatric report made on the victim \u2019s intellectual development . In view of the expiry of the limitation period for the offence he had committed , the court did not impose any sanction on the applicant .","By the final judgment of ORG adopted on DATE , the applicant \u2019s appeal was declared inadmissible due to his failure to lodge it within the statutory time - limit of DATE from the date of adoption of the lower court \u2019s judgment .","The relevant domestic law has been set out in NORP v. GPE ( nos . CARDINAL and QUANTITY \u00a7 DATE and DATE , DATE ) .","In a series of its judgments , ORG awarded compensation to persons whose cases had been communicated to the respondent Government and in which the latter acknowledged a violation of Convention rights ( see NORP v. GPE ( dec . ) , no . CARDINAL , DATE ; DATE and Others v. GPE ( dec . ) , no . CARDINAL , DATE ; Grosu and Others v. GPE ( dec . ) , no . CARDINAL , DATE ; PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ; and GPE v. GPE ( dec . ) , no . CARDINAL\/CARDINAL , DATE ) . In adopting these judgments , ORG expressly relied on the LAW as the legal basis for awarding compensation . The ORG accepted that that the amounts awarded had been consistent with those it had made in similar cases in respect of GPE and thus struck those cases out of its list of cases ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57922","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":1995,"docname":"CASE OF SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50)","importance":2,"conclusion":"Pecuniary damage - financial award","judges":"C. Russo","text":["The case was referred to the ORG by ORG ( \" the Commission \" ) and by ORG of ORG ( \" the Government \" ) on DATE and CARDINAL DATE , within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in an application ( no . CARDINAL\/CARDINAL ) against ORG lodged with the ORG under LAW ( article CARDINAL ) by a NORP national , PERSON , on DATE .","In a judgment of DATE ( \" the principal judgment \" ) the ORG found that there had been a breach of LAW taken together with LAW CARDINAL ( article CARDINAL + CARDINAL - CARDINAL ) , as the assumption that women gave up work when they gave birth to a child had been the sole basis for the reasoning in a judgment of ORG and had introduced a difference of treatment on the ground of sex only , a difference that lacked any reasonable and objective justification ( Series A no . CARDINAL , pp . CARDINAL and DATE , paras . CARDINAL and point CARDINAL of the operative provisions ) .","The ORG ruled that its judgment constituted in itself sufficient just satisfaction in respect of the alleged non - pecuniary damage and that the respondent ORG was to pay the applicant , within DATE , MONEY ( CHF ) in respect of costs and expenses ( ibid . , pp . DATE , paras . CARDINAL and DATE and points CARDINAL of the operative provisions ) .","As the question of the application of LAW ) was not ready for decision as regards the pecuniary damage , it was reserved in the principal judgment . ORG invited the Government and the applicant to submit their written observations within DATE and , in particular , to notify ORG of any agreement they might reach ( ibid . , pp . CARDINAL and DATE , para . CARDINAL and point CARDINAL of the operative provisions ) .","On DATE the Agent of the Government informed the President that in a judgment of CARDINAL DATE ORG had concluded the rehearing proceedings commenced under section ORG . Its own judgment of CARDINAL DATE had been set aside , together with the decision of the GPE of ORG , ORG CARDINAL DATE and the decision of ORG of the GPE of GPE of CARDINAL DATE ; and the applicant had been granted a full invalidity pension with effect from CARDINAL DATE .","On DATE counsel for the applicant advised the Registrar that his client did not consider that the proceedings in GPE were terminated and that she had submitted to ORG a claim for compensation in the amount of CHF ORG based on section CARDINAL of the Act on the liability of the ORG .","On DATE the Secretariat of the Commission informed the Registrar that the ORG wished to leave the question of LAW ) to the ORG \u2019s discretion .","On DATE the applicant \u2019s representative sent the Registrar a copy of ORG decision of DATE whereby the compensation claim was refused ; he asked the ORG to consider the possibility of ruling on his client \u2019s claims as an agreement with the ORG seemed unlikely .","On the President \u2019s instructions , the PERSON consulted the Agent of the Government and ORG . On DATE the Agent said he had nothing to add to ORG decision of DATE . On DATE the ORG made it known that he was leaving the matter to the ORG \u2019s discretion .","On DATE"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83527","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":2007,"docname":"CASE OF TILLACK v. BELGIUM","importance":3,"conclusion":"Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings (total)","judges":"Andr\u00e1s Baka;Antonella Mularoni;Fran\u00e7oise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in GPE .","He is a journalist on the NORP DATE magazine ORG . From CARDINAL DATE until DATE he was assigned to GPE to report on the policies of ORG and the activities of the NORP institutions .","On DATE and DATE Stern published CARDINAL articles by the applicant based on confidential documents from ORG ) . The first article reported on allegations by a NORP civil servant concerning irregularities in the NORP institutions . The second concerned the internal investigations ORG had carried out into those allegations .","A rumour began to circulate within ORG that the applicant had paid MONEY ( ORG ) or NORP marks ( ORG ) to a NORP civil servant in exchange for this information .","On DATE OLAF , suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the NORP institutions , opened an internal investigation to identify the person who had disclosed the information to the applicant .","The minutes of an ORG meeting held on CARDINAL and DATE stated in particular :","\u201c The members of ORG noted that the journalist \u2019s articles were not at all aggressive in tone but hinted at the real situation , as was often the case with individuals . They were surprised that ORG \u2019s press release referred to a payment for such information . Consequently , they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard . \u201d","In a letter of DATE written in the course of his inquiry into a complaint ( no . CARDINAL\/CARDINAL\/GG ) filed by the applicant against ORG , ORG indicated that the suspicions that the applicant had bribed an ORG official had originated from \u201c information from reliable sources , including members of the NORP Parliament \u201d .","On DATE ORG issued a press release entitled \u201c OLAF clarification regarding an apparent leak of information \u201d . The press release was worded as follows :","\u201c On DATE , ORG ( ORG ) issued a press release announcing that it had opened an internal investigation under LAW into an apparent leak of confidential information included in a report prepared within ORG . It stated that according to information received by the ORG , a journalist had received a number of documents relating to the so - called \u2018 ... affair\u2019 , and that it was not excluded that payment might have been made to somebody within ORG ( or possibly another ORG institution ) for these documents . ORG \u2019s enquiries have not yet been completed but to date , ORG has not obtained proof that such a payment was made . \u201d","On DATE ORG issued his decision . He had already submitted a draft recommendation to ORG on DATE . The decision , which essentially reproduced the conclusions set out in the draft , stated in particular :","\u201c ...","CARDINAL ... by publishing this press release , ORG has not adequately implemented the ORG \u2019s draft recommendation . Instead of withdrawing the allegations of bribery , ORG simply states that \u2018 to date\u2019 it has not found sufficient evidence to support these allegations . The wording of this press release thus implies that ORG considers it possible that evidence supporting these allegations could still emerge . In these circumstances , the action taken by ORG is manifestly inadequate to remedy the instance of maladministration that the ORG has identified . A critical remark will therefore be made in this respect .","...","Conclusion","CARDINAL On the basis of the ORG \u2019s inquiries into this complaint , it is necessary to make the following critical remark :","By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny , ORG has gone beyond what is proportional to the purpose pursued by its action . This constitutes an instance of maladministration . \u201d","On DATE OLAF lodged a complaint with the NORP judicial authorities , submitting a report on the internal investigation it had carried out . It also referred the matter to the NORP judicial authorities .","Consequently , on DATE , an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant .","On DATE , at the request of the investigating judge , the applicant \u2019s home and workplace were searched by the NORP judicial authorities . Almost all of the applicant \u2019s working papers and tools were seized and placed under seal ( CARDINAL crates of papers , CARDINAL boxes of files , CARDINAL computers , CARDINAL mobile telephones and a metal cabinet ) . It appears that the search warrant was not handed to the applicant but was read out to him . No inventory of the items seized was drawn up . On that occasion , the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by ORG , which suspected him of having bribed a NORP civil servant in order to obtain confidential information . According to the applicant , the authorities subsequently lost a whole crate of papers , which was not found until DATE , in DATE .","On DATE and DATE the applicant applied to ORG at ORG for leave to consult the investigation file . His application was refused in a letter dated DATE .","The applicant applied again on DATE , to no avail .","In the meantime , on DATE , he had applied to the investigating judge to have the measures relating to the seizure discontinued .","By an order of DATE the investigating judge rejected his application .","NORP The applicant appealed , alleging , inter alia , a breach of LAW .","ORG upheld the order on DATE , holding as follows :","\u201c The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom , and , if so , whether that right has an absolute value or is subject to restrictions , has not yet been established in law .","The actual wording of LAW does not recognise the protection of journalistic sources , a right which has developed through the case - law of ORG , albeit without having been enshrined as an absolute value according to legal authorities ( see , to this effect , the judgment of ORG in the case of PERSON and Others v. GPE , DATE , no . CARDINAL , Human Rights Information Bulletin no . CARDINAL , DATE , pp . CARDINAL - CARDINAL ) .","Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information , although the exercise of this right does not give rise to immunity from prosecution or from civil liability ( see in this connection the PERSON granting journalists the right not to disclose their sources of information , passed by ORG on DATE , and the opinion of ORG on the legislative proposals to grant journalists the right to protect their sources of information , approved by ORG on DATE ) .","The investigative measure complained of is , admittedly , an interference in the rights guaranteed by LAW ORG . It was , however , lawfully ordered by the competent investigating judge in connection with the matter referred to him .","It pursues legitimate aims since , in the context of the information in the case file brought to the attention of the court , whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information , its purpose is to \u2018 verify whether the protection of confidentiality applies to a lawful or unlawful source ; the latter must be overridden by a superior value , namely the prevention of ORG written application by ORG of DATE , p. CARDINAL ) .","As is rightly noted by the investigating judge , it is not acceptable that the right to protect sources can be used to cover up offences , since this would deprive that right of its purpose , notably the provision of accurate and reliable information to the public , and would be likely to jeopardise public safety by creating de facto impunity ( see to this effect the judgment of ORG DATE , ORG , DATE , p. CARDINAL ) .","...","In the instant case , as the investigating judge noted in the order appealed against , in particular on page CARDINAL , paragraph CARDINAL.CARDINAL.CARDINAL , the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained , being justified by the ongoing duty to investigate , the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge .","The arguments advanced by the applicant in his submissions to this court , which can not substitute its own findings for those of the court below , do not give rise to any doubt in this respect .","It follows that the appeal is unfounded . \u201d","The applicant appealed on points of law . Relying in particular on Articles CARDINAL , CARDINAL of the Convention , he submitted that freedom of expression included the freedom to seek out and collect information , essential aspects of journalistic activity . According to the applicant , that meant that journalists\u2019 sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources . The applicant also complained that since he had not had access to the investigation file , he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search .","By a judgment of DATE ORG dismissed the appeal . It held that LAW authorised restrictions on freedom of expression , that the search and seizure were provided for by LAW and that ORG had given sufficient and adequate reasons for its decision . ORG further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out . It was sufficient for the investigating judge to have evidence suggesting that that these LOC might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant . Consequently , the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under LAW , and was therefore inadmissible .","In the meantime , on CARDINAL and DATE , the applicant had lodged CARDINAL applications with ORG of ORG . The first sought the annulment of the complaint filed by ORG and compensation for the harm allegedly caused to the applicant \u2019s career and reputation . The second sought a temporary injunction prohibiting ORG from inspecting any document seized during the searches at issue . By an order of CARDINAL DATE the President of the court dismissed the applications . The President ruled that ORG \u2019s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment . He stressed in particular that ORG \u2019s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings , given that the competent authorities remained free to decide on the action to be taken in relation to the report . As regards the applicant \u2019s application for interim measures , he ruled that there was no causal link between the alleged harm and ORG \u2019s action and that it had not been established that ORG had acted in breach of the principles of good administration and proportionality .","The applicant appealed . By an order of DATE the President of ORG of ORG upheld the order .","In the context of those proceedings , the applicant received a copy of ORG \u2019s complaint but not of the other documents in the criminal file . At that time , he had not been charged in GPE . On DATE the GPE public prosecutor informed the applicant \u2019s counsel that the investigation in GPE had been closed without any charges being brought .","On DATE ORG drafted a special report for ORG following the draft recommendation he had addressed to ORG in connection with a fresh complaint filed by the applicant ( CARDINAL\/CARDINAL\/GG ) . In the complaint the applicant alleged that during the inquiry into complaint no . CARDINAL\/CARDINAL\/GG , ORG had provided incorrect information that was prone to mislead the ORG ; he requested the latter to conduct a new inquiry .","In his above - mentioned report , the ORG stated that the alleged remarks by the members of ORG ( see paragraph CARDINAL above ) had probably never been made . They were rumours circulated by another journalist , PERSON , which the Director General of ORG had not bothered to check with the members of ORG concerned .","In his recommendation , the ORG concluded that ORG should acknowledge that it had made incorrect and misleading statements in its submissions to the ORG in the context of the latter \u2019s inquiry into complaint no . CARDINAL\/CARDINAL\/GG .","Article CARDINAL of LAW provides :","\u201c Medical practitioners , surgeons , health officers , pharmacists , midwives and all other persons who , by reason of their status or profession , are guardians of secrets entrusted to them and who disclose them , except where they are called to give evidence in legal proceedings ( or to a parliamentary commission of inquiry ) or where the law requires them to do so , shall be liable to imprisonment for DATE and a fine ranging from MONEY . \u201d","The relevant provisions of LAW read as follows :","\u201c The investigating judge may , if required to do so or of his own motion , visit the home of the accused to search papers , effects and , in general , any items that may be deemed useful in establishing the truth . \u201d","\u201c Similarly , the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden . \u201d","DATE of Regulation EC No . CARDINAL\/CARDINAL of ORG and of ORG DATE concerning investigations conducted by ORG provides as follows in respect of confidentiality and data protection :","\u201c CARDINAL . Information obtained in the course of external investigations , in whatever form , shall be protected by the relevant provisions .","Information forwarded or obtained in the course of internal investigations , in whatever form , shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of ORG .","Such information may not be communicated to persons other than those within the institutions of ORG or in the Member GPE whose functions require them to know , nor may it be used for purposes other than to prevent fraud , corruption or any other illegal activity .","... \u201d","Article CARDINAL of the same ORG provides that it is binding in its entirety and directly applicable in all Member GPE .","Paragraph CARDINAL of LAW states as follows ;","\u201c The ORG , acting in accordance with the procedure referred to in LAW , after consulting ORG , shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the ORG with a view to affording effective and equivalent protection in GPE . These measures shall not concern the application of national criminal law or the national administration of justice . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-6024","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2001,"docname":"HADZIC v. CROATIA","importance":3,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant , PERSON , is a NORP citizen , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant served as a dentist in ORG ( ORG ) from DATE to DATE . His post was in GPE , GPE .","By an order of the Commander of the Fifth Military Zone of the Socialist Federal Republic of Yugoslavia of DATE it was decided that , due to his age , the applicant \u2019s military service would end on DATE . Subsequently , by a decision of ORG ( GPE za socijalno osiguranje vojnih osiguranika ) of DATE , the applicant \u2019s right to an old - age pension was recognised as from DATE .","The applicant \u2019s pension was subsequently paid from ORG in GPE until DATE .","According to the Government the payments stopped on that date at the applicant \u2019s personal request , as he had decided to file an application for a pension in GPE .","According to the applicant on DATE he obtained NORP citizenship and , consequently , only then fulfilled the requirements to apply for a pension in GPE .","On DATE the applicant filed an application for an old - age pension in GPE . As a reason for this request the applicant submitted that he had previously fulfilled the conditions for an old - age pension and also obtained the NORP citizenship .","By a decision of CARDINAL DATE ORG ( Republi\u010dki fond mirovinskog i invalidskog osiguranja radnika ORG ured GPE ) rejected his request , stating that the applicant did not fulfil the requirements for a pension as he had failed to join the NORP army prior to DATE .","The applicant unsuccessfully appealed against that decision and after his appeal was rejected on DATE , he instituted proceedings before ORG ( Upravni sud PERSON ) . He maintained that the decision to reject his request for an old - age pension had not been adequately reasoned and had failed to state laws on which it had been based . He maintained also that the law requesting the former ORG officers to make themselves available for the service in the NORP army prior to DATE had been enacted on DATE , after he had already fulfilled the conditions for an old - age pension . Furthermore , as that law had been enacted only in DATE he could not have known the above requirement prior to his retirement form service .","On DATE ORG rejected his claim . It noted that the applicant \u2019s active military service in the ORG had come to an end on DATE and that at that moment he fulfilled the requirements for the old - age pension according to ORG law . It found furthermore that the applicant had failed to make himself available for service in the NORP army prior to DATE , as prescribed by the DATE Former ORG Officers\u2019 Pensions Act . Therefore , he had failed to fulfil the requirements for recognition of his pension rights in GPE , as prescribed by law .","On DATE the applicant lodged a constitutional complaint claiming that his right to property was violated by ORG decision in so far as his right to pension in GPE was denied . He argued in particular that the DATE Former ORG Officers\u2019 Pensions Act had not required that he join the NORP army .","On DATE ORG ( Ustavni sud PERSON ) rejected the applicant \u2019s complaint . It followed the reasoning set out in ORG decision of CARDINAL DATE and found that the applicant \u2019s constitutional rights had not been violated .","The relevant parts of the Former ORG Officers\u2019 Pensions Act ( DATE - Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika biv\u0161e PERSON , ORG no . CARDINAL\/CARDINAL ) read as follows :","\u201c A person whose status as an active officer in the former ORG in the territory of GPE ended prior to DATE , and who had not until that date obtained rights from pension and invalidity insurance may obtain such rights if he fulfils the conditions required of army personnel in order to obtain rights concerning pension and invalidity insurance in accordance with ORG ( Zakon o mirovinskom i invalidskom osiguranju vojnih osiguranika \u2013 Official Gazette no . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) and if :","...","\u2013 he had made himself available for the service in the NORP army prior to DATE ... \u201d","By its decision of DATE ORG , inter alia , guranteed to ORG officers and soldiers who voluntarily left the ORG troops based on NORP territory prior to DATE at TIME the following : personal safety , the same status as they had in the ORG and an organised and unhindered possibility to leave the territory of GPE for those who wished to do so ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58110","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1997,"docname":"CASE OF JOHNSON v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 5-1;No separate issue under Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"John Freeland;N. Valticos","text":["The applicant was born in GPE , GPE , in DATE .","The applicant was convicted at ORG on DATE of causing actual bodily harm to a woman passer - by in a random and unprovoked attack . He punched her in the head and in the abdomen and then walked off . Unbeknownst to the applicant , the woman was DATE pregnant . The applicant had previous convictions for unprovoked assaults : in DATE he was sentenced to CARDINAL months\u2019 imprisonment for an assault on his mother ; in DATE he was sentenced to CARDINAL years\u2019 imprisonment for an assault in which he had struck a woman passer - by with a housebrick ; in DATE he was sentenced to CARDINAL months\u2019 imprisonment for assaulting QUANTITY girls walking along a city street . He also had convictions for robbery , criminal damage and various driving offences . The maximum sentence which the court could have imposed under section QUANTITY of the Offences against LAW in respect of the current offence was a term of imprisonment of DATE .","While on remand in ORG the applicant was diagnosed as suffering from \u201c mental illness \u201d , manifested in delusions of conspiracy and victimisation and an obsession with astral projection . The precise diagnosis was of schizophrenia superimposed on a psychopathic personality . The applicant had a history of alcohol and drug abuse . He had never previously been diagnosed as mentally ill within the meaning of LAW DATE although , when on remand on a previous charge of actual bodily harm , he had been assessed for psychiatric treatment but had been found to be unsuitable .","The applicant \u2019s diagnosis ( see paragraph CARDINAL above ) was confirmed by CARDINAL psychiatrists . ORG accordingly imposed a hospital order on him under LAW of LAW . He was also made subject to a restriction order without limit in time under LAW of the same LAW , the court being satisfied that this order was necessary for the protection of the public from serious harm .","On DATE the applicant was admitted to ORG , a maximum security psychiatric institution . Between the date of his admission and up to CARDINAL DATE he remained under the supervision of PERSON , the responsible medical officer ( \u201c RMO \u201d ) . PERSON acted as his ORG from CARDINAL DATE until DATE discharge .","When the applicant was admitted to ORG Dr PERSON recorded that he was suffering from schizophrenia superimposed on a psychopathic personality . Soon after his admission the applicant was administered antipsychotic drugs , and it would appear that he responded well to treatment to the extent that by CARDINAL DATE he had developed full insight into his mental illness . The applicant ceased taking medication in DATE ( see paragraph CARDINAL below ) .","NORP The applicant \u2019s detention was reviewed on several occasions DATE by ORG ( \u201c the ORG \u201d ) pursuant to the provisions of section CARDINAL of the CARDINAL Act .","The first review was held in DATE . The ORG had before it the psychiatric report of PERSON , the applicant \u2019s PERSON at the time , as well as a similar report drawn up by Dr PERSON , a consultant psychiatrist , at the request of the applicant \u2019s solicitor .","While noting the applicant \u2019s great progress since the date of his admission to ORG ( see paragraph CARDINAL above ) , PERSON stated that he was still suffering from schizophrenia , superimposed on a psychopathic personality . He was also reported to be devious in his attitude to the staff at the hospital . PERSON concluded that the applicant continued to require treatment and was unfit to be discharged . PERSON expressed the opinion that the applicant showed ample signs of psychopathic disorder with superimposed mental illness and that the mental illness had the characteristics of a paranoid schizophrenic condition . He did not recommend any change in the applicant \u2019s current status .","In its decision of CARDINAL DATE , the ORG stated that it was satisfied that the applicant was suffering from mental illness or a form of that disorder of a nature or degree which made it appropriate for him to be liable to be detained and that it was necessary for his health or safety and for the protection of other persons that he should receive medical treatment in ORG .","The applicant continued therefore to be detained after that date .","The applicant \u2019s case came up for review on CARDINAL DATE and again on DATE . On both occasions the ORG decided to make no direction for his discharge or reclassification of his illness , believing that it was necessary for his own health and safety as well as for the protection of other persons in the community at large that he continue to receive medical treatment for his condition in hospital .","A fourth review took place in DATE . The ORG had before it a psychiatric report drawn up on CARDINAL DATE by PERSON who had taken over from PERSON as the applicant \u2019s PERSON following her retirement ; an assessment of the applicant \u2019s condition prepared on DATE by ORG , a consultant psychiatrist , based on , inter alia , an interview with the applicant on DATE ; and a further assessment dated CARDINAL DATE drawn up by PERSON , who had interviewed the applicant on DATE .","Dr PERSON and PERSON both concluded that the applicant was free of symptoms of mental illness . Dr PERSON \u2019s view was that the applicant was no longer detainable under LAW . While recommending a discharge , Dr PERSON noted that arrangements were being made by Dr PERSON ( see below ) to secure accommodation for the applicant in a hostel for persons suffering from drink - related problems . Dr PERSON for his part felt that the applicant still needed to undergo a period of rehabilitation and was not fit for discharge at that time . In his report PERSON PERSON concluded that the applicant was best described as \u201c a schizoid personality with a history of explosive anti - social behaviour induced by intoxication \u201d and that he could benefit from a stay in a hostel for people with drink - related problems following his discharge from ORG . Dr PERSON offered to facilitate the applicant \u2019s transfer to a hostel which he had in mind and to act as his psychiatric supervisor .","The ORG ruled on DATE as follows :","\u201c The ORG accepts the medical evidence that the patient is not now suffering from mental illness . The episode of mental illness from which he formerly suffered has come to an end . He is not now in receipt of any psychotropic medication . \u201d","However the ORG continued :","\u201c The [ applicant ] had an unrealistic opinion of his ability to live on his own in the community after DATE in ORG and required rehabilitation under medical supervision and that such rehabilitation ( and its associated support ) can be provided only in a hostel environment . Further , the ORG is of the opinion that the recurrence of mental illness requiring recall to hospital can not be excluded until after successful rehabilitation of that nature . \u201d","On that basis , the ORG ordered the applicant \u2019s conditional discharge , the conditions being that the applicant be subject to the psychiatric supervision of ORG and to the social - worker supervision of a nominated psychiatric social worker , and reside in a supervised hostel approved by ORG and the nominated psychiatric social worker .","The applicant \u2019s discharge was to be deferred until arrangements could be made for suitable accommodation .","Following the DATE review , considerable efforts were made to secure hostel accommodation for the applicant , but to no great avail . In the report of a senior social worker dated DATE , it was noted that no progress had been made on account of , inter alia , the limited number of hostel placements in the area catering for the applicant \u2019s specific needs . The applicant himself also seemed intent on portraying himself in a negative light when visiting hostels , with the result that he confirmed their initial anxieties about accepting him .","The nominated psychiatric social worker ( see paragraph CARDINAL above ) , Mr PERSON , contacted a number of hostels . In his report of CARDINAL DATE , PERSON PERSON described how his search for hostel accommodation for the applicant had been \u201c a time - consuming , lengthy and frustrating \u201d experience both for himself and the applicant . CARDINAL hostel visited had rejected the applicant almost immediately . Another rejected him without seeing him and the housing associations running hostels in conjunction with ORG also felt unable to offer him accommodation for some time on account of staff composition . It would appear that all potential hostels expressed concern about the applicant \u2019s drinking problem and his previous history of assaults on women which might present a threat to female residents and members of staff . Mr PERSON indicated that the applicant during this time had not always shown a realistic appreciation of the lifestyle needed to achieve a successful rehabilitation .","However , CARDINAL hostel , PERSON , did express interest in accepting the applicant on condition that he agree to and successfully complete an DATE trial period in an open ward in a local hospital . Mr PERSON believed that PERSON was the only viable option , although the applicant remained rather ambivalent about exploring this possibility .","On DATE the applicant applied to the ORG to have his detention reviewed , hoping for an absolute discharge . The ORG met in DATE and heard the applicant in person . It had before it Mr PERSON \u2019s report on attempts to find suitable accommodation for the applicant ( see paragraph CARDINAL above ) , as well as his views on the applicant \u2019s suitability for absolute discharge . Mr PERSON had concluded that he would be fearful of granting an absolute discharge since the applicant , if left to his own devices and without suitable support , could quickly find himself in trouble again . He was in favour of the applicant spending an DATE trial period in a local hospital , which would provide the basis for acceptance by the PERSON hostel .","The ORG also considered a report prepared by PERSON , dated CARDINAL DATE . PERSON confirmed in this report that the applicant was no longer mentally ill . He stated that the terms of the earlier conditional discharge were still being pursued but that it had not yet been possible to find suitable accommodation . He recommended that the applicant be discharged as soon as appropriate arrangements could be made .","The ORG noted in its ruling of CARDINAL DATE that the necessary arrangements for supervised accommodation had not been easy to make \u201c probably because the patient is himself not easy to please \u201d . The ORG accepted the reasoning of the DATE ORG ( see paragraph CARDINAL above ) . Although acknowledging that the applicant \u2019s clear preference was for an absolute discharge , the ORG considered that it was in the interests of the applicant and the public that \u201c he remain liable to hospital recall and to have the support that is assured by a discharge that is conditional \u201d .","Accordingly , the ORG once again directed the applicant \u2019s conditional discharge but deferred the discharge until suitable arrangements had been made for supervised accommodation .","On DATE the applicant commenced trial leave at another hospital , PERSON , which was less secure than ORG ( see paragraph CARDINAL above ) . He was allowed increasing freedom in the form of time away from the hospital . On DATE , after drinking in a local pub , he returned to the hospital TIME and assaulted a patient whom he alleged had provoked him . Thereafter the placement began to break down completely . In a report dated DATE , PERSON , the supervising psychiatrist , noted that the applicant had terrorised the nursing staff and had began to reject the rehabilitation plans which had been foreseen for him . He was returned to ORG on CARDINAL DATE .","Back in ORG , the applicant was given the choice to return to the pre - discharge unit there , where he could pursue other pre - discharge possibilities , or to go to another ward containing more long - term patients . The applicant chose the latter option .","A sixth review was carried out in DATE . The ORG considered a progress report drawn up by PERSON on DATE , the report prepared in DATE by ORG ( see paragraph CARDINAL above ) and a report of PERSON PERSON dated CARDINAL DATE .","Dr ORG noted in his report the failure of the trial - leave period ( see paragraph CARDINAL above ) and the difficulty in rekindling the applicant \u2019s motivation . Dr PERSON concluded :","\u201c [ the applicant ] is not mentally ill and does not require to remain in ORG . Since DATE attempts to obtain his conditional discharge have been foiled by his inability to cooperate with the arrangements made and it is now difficult to envisage any conditions of his discharge that would be acceptable to [ the applicant ] . \u201d","Dr PERSON \u2019s report of CARDINAL DATE expressed pessimism about the applicant \u2019s future in the light of the failure of the trial - leave period . He indicated that the applicant suffered from an explosive disorder of personality which meant that \u201c when he is not in the middle of an explosion he is not in the formal sense mentally ill \u201d . Dr PERSON had no doubt that intoxication had played some part in the breakdown of the rehabilitation process and was convinced that the applicant \u2019s intoxicated explosions would likely recur whenever he was granted freedom into the community with access to intoxicants . Dr PERSON also considered that any further attempt at rehabilitation through general psychiatric routes would be inappropriate and for this reason was reluctant to continue as his psychiatric supervisor .","In his report PERSON PERSON noted that the applicant \u2019s failure to complete successfully the trial - leave period ruled out any prospect of his acceptance by the PERSON hostel .","On DATE the ORG found that the applicant was not suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment . However , the ORG was satisfied that it was appropriate for the applicant to remain liable to be recalled to hospital for further treatment . The reasons given were that the applicant did not accept sufficient responsibility for his own behaviour to be able to cope with the pressures of life in the community without a considerable degree of supervision and support . Hence the applicant was again ordered to be conditionally discharged , such discharge to be deferred until alternative supervised accommodation could be found .","The applicant \u2019s final review took place in DATE . He was assessed prior to this review by PERSON , who indicated that the applicant had no symptoms of mental illness and , provided that the topic of rehabilitation was avoided , he was constantly pleasant , friendly and cooperative . PERSON concluded :","\u201c There is no basis for [ the applicant ] continuing to be classified as suffering from mental illness and with the benefit of hindsight it appears unlikely that he ever experienced more than a drug - induced psychosis ... He does not require to remain in ORG but it is difficult to envisage any conditions of his discharge that would be acceptable to him and his current application for an absolute discharge must now be considered on its merits . \u201d","On DATE the ORG ordered the applicant \u2019s absolute discharge on the basis that the applicant","\u201c is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment \u201d .","In reaching this conclusion the ORG had regard to Dr ORG \u2019s oral evidence . It noted from his evidence that the applicant had not suffered from mental illness since DATE and was not suffering from any other form of mental disorder . Medication had been withdrawn in DATE . The applicant had shown consideration and kindness to other patients in his ward and he was \u201c often acting more like a member of staff than a patient \u201d .","Furthermore , the ORG noted that PERSON considered that the index offence was not to be regarded as a result of mental illness but of a likely combination of drugs and alcohol . The applicant had suffered a psychotic episode whilst on remand which PERSON attributed to the stress of prison and the withdrawal of drugs and alcohol . According to PERSON there was no evidence that this illness was likely to recur and there was no medical basis to believe that the applicant would be dangerous if released .","While having regard to the view of the Secretary of ORG that only a conditional discharge was appropriate at that stage , the ORG concluded that it was proper and in the interests of justice to grant the applicant an absolute discharge .","The applicant was released from ORG on DATE . Since then , he has not relapsed into mental illness . At the hearing the ORG was informed that the applicant had recently been given a conditional discharge following his conviction of a minor public - order offence arising out of an altercation with a neighbour . He was also facing a charge of cultivating cannabis .","Section CARDINAL ( CARDINAL ) of LAW DATE ( \u201c the DATE LAW ) defines \u201c mental disorder \u201d as mental illness , arrested or incomplete development of mind , psychopathic disorder and any other disorder or disability of mind . A personality disorder would not , of itself , justify detention unless it came within the definition of psychopathic disorder , namely \u201c a persistent disorder or disability of mind ( whether or not including significant impairment of intelligence ) which results in abnormally aggressive behaviour or seriously irresponsible conduct on the part of the person concerned \u201d .","Under LAW CARDINAL ) of the LAW , dependence on alcohol or drugs is not to be construed as a form of mental disorder .","Section CARDINAL of the DATE Act empowers a court to order a person , on being convicted of a criminal offence punishable with imprisonment , to be admitted to and detained in a specified hospital ( \u201c a hospital order \u201d ) .","The court can only make a hospital order if it is satisfied on the written or oral evidence of CARDINAL registered medical practitioners that the offender is suffering from mental disorder ( see paragraph CARDINAL above ) and that","\u201c the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment , and in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration in his condition \u201d ( section DATE ( CARDINAL ) ( a ) ( i ) )","and","\u201c the court is of the opinion , having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of a [ hospital order ] \u201d ( section DATE ( CARDINAL ) ( b ) ( ii ) ) .","Under section DATE ( CARDINAL ) a hospital order must specify the form or forms of mental disorder from which the offender is suffering , as confirmed by the evidence of CARDINAL practitioners .","Section CARDINAL of the DATE Act empowers a court to make a restriction order ( with or without limit of time ) at the same time as it makes a hospital order . The restriction order gives the Secretary of ORG , inter alia , increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence , the antecedents of the offender and the risk of his committing further offences if still at large , that it is necessary for the protection of the public from serious harm to make the order . A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of ORG ( see paragraph CARDINAL below ) to order release more narrowly than in the case of an ordinary mental patient .","Under section CARDINAL of the CARDINAL Act , a person who is subject to a hospital order and restriction order ( \u201c a restricted patient \u201d ) , and who is detained in hospital , may apply to the ORG after CARDINAL months\u2019 detention for a review of his detention . After CARDINAL months\u2019 detention such applications may be made DATE . The Secretary of ORG may at any time refer the case of a restricted patient to the ORG ( section CARDINAL of LAW ) . Tribunals are made up of a legally qualified member who sits as the chairperson , a medically qualified member who interviews the patient and a lay member .","NORP Under LAW ( CARDINAL ) and ( CARDINAL ) of LAW , read in conjunction with section DATE ( CARDINAL ) , where an application is made to the ORG by a restricted patient or where his case is referred to the ORG by the Secretary of ORG , the ORG is required to direct the absolute discharge of the patient if it is satisfied","( a ) ( i ) that the patient is not then suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment ; or","( ii ) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment ( section CARDINAL ( CARDINAL ) of the DATE Act ) ; and","( b ) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment ( section CARDINAL ( CARDINAL ) of LAW ) .","Pursuant to section CARDINAL ( CARDINAL ) , where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect .","Under LAW ( CARDINAL ) of LAW , where the ORG is satisfied as to either of the matters referred to at ( a ) in paragraph CARDINAL above but not as to the matter referred at ( b ) in paragraph CARDINAL above , it is required to direct the conditional discharge of the patient . Lady Justice PERSON , giving judgment in the case of NORP v. ORG , ex parte K ( [ DATE ] CARDINAL ORG , ORG ) , explained the nature of this power as follows :","\u201c LAW gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital . This would appear to be a provision designed both for the support of the patient in the community and the protection of the public , and it is an important discretionary power vested in an independent tribunal , one not lightly to be set aside in the absence of clear ORG pp . CARDINAL\u2013CARDINAL )","By virtue of section CARDINAL ( CARDINAL ) of LAW , a patient who has been conditionally discharged may be recalled by the Secretary of ORG and must comply with the conditions attached to his discharge . In contrast to absolute discharge , a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order .","Under LAW ( CARDINAL ) of LAW , a tribunal can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to their satisfaction . However , in the case of restricted patients , whose discharge has been accordingly deferred , the ORG does not have the power to direct the discharge if the specified conditions are not fulfilled or to adjourn its consideration of the case to await further developments or to recommend that the patient be granted leave of absence or to specify a time within which the conditions are to be complied with and to reconvene the proceedings failing such compliance with the time fixed . However , once the case comes back before the ORG on an application by the patient ( which at the earliest will be DATE ) or on a reference from the Secretary of ORG ( which may be at any time ) the ORG must consider the case afresh . In Secretary of ORG for ORG v. ORG and another ( [ DATE ] CARDINAL ORG , ORG ) , Lord Bridge noted that there was no basis in the DATE Act or in the rules of ORG to defer a conditional discharge until a fixed date . He stated :","\u201c ... it is impossible for a tribunal in making a deferred direction for conditional discharge to predict how long it will take to make the necessary arrangements . The decision should simply indicate that the direction is deferred until the necessary arrangements have been made to the satisfaction of the tribunal and specify what arrangements are required , which can normally be done , no doubt , simply by reference to the conditions to be imposed . Whoever is responsible for making the arrangements should then proceed with all reasonable expedition to do so and should bring the matter to the attention of the tribunal again as soon as practicable after it is thought that satisfactory arrangements have been made ... \u201d ( at p. CARDINAL )","NORP The Secretary of ORG may also order a patient \u2019s conditional or absolute discharge ( section CARDINAL of LAW ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58750","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2000,"docname":"CASE OF TRZASKA v. POLAND","importance":3,"conclusion":"Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Damage - finding of violation sufficient;Costs and expenses partial award","judges":"Elisabeth Palm","text":["On DATE the ORG issued a warrant of arrest against the applicant who was suspected of attempted manslaughter , robbery and rape . He was arrested on DATE .","On DATE ORG ( S\u0105d Wojew\u00f3dzki ) prolonged the detention on remand until DATE finding a reasonable suspicion that the applicant had committed the crimes in question . The ORG considered that certain witnesses had to be heard and that expert opinions should be taken .","On DATE ORG transmitted the bill of indictment to ORG . The applicant was charged with attempted manslaughter , assault , causing severe bodily harm , use of a dangerous weapon , aggravated theft , rape and theft .","On DATE the applicant requested ORG to release him . On DATE the ORG refused to order the applicant 's release in view of the seriousness of the offences concerned .","On DATE the first hearing was held before ORG . The applicant requested that the case be transmitted to ORG as most witnesses lived nearby . He requested access to the case - file in order to read it in a detailed manner . The ORG refused the first request and complied with the second .","On DATE the applicant failed to appear before the ORG . It transpires from TIME of the hearing that he had refused to leave the prison cell as he felt unwell . A prison physician stated that there were no medical objections to the applicant 's participation in the hearing . The hearing set for DATE was not held for the same reason .","On DATE the ORG heard the applicant , who denied his involvement in the crimes concerned , and another accused . The hearing was adjourned for DATE . At this date the court heard CARDINAL witnesses and further questioned the applicant . On DATE CARDINAL further witnesses were heard . The hearing was adjourned until DATE .","Subsequently the judge rapporteur fell ill . He remained on sick leave from DATE to CARDINAL DATE . The case was assigned to a new panel of judges .","On DATE the applicant complained to the Minister of Justice about the length of the proceedings .","The hearing fixed on DATE was adjourned as the applicant 's officially appointed counsel requested that the case be assigned to another lawyer in view of his bad health .","On DATE the hearing was recommenced in view of the change in the composition of the court . The court questioned the applicant and another co - accused . The hearing was adjourned for CARDINAL and DATE .","On DATE the officially appointed lawyer informed the court that the applicant had withdrawn his power of attorney . At the hearing set for DATE this lawyer was not present . The ORG adjourned the hearing until DATE and assigned CARDINAL new lawyers for the applicant 's defence . As they failed to appear at the hearing on DATE , the ORG adjourned the hearing until DATE .","On DATE of the officially appointed lawyers requested that the hearing be recommenced . The ORG complied with this request and again questioned the applicant and another co - accused .","On DATE the applicant complained to the ORG ( PERSON ) about the length of the proceedings in his case and on DATE to the Minister of ORG .","At the hearing on DATE and DATE the court heard DATE witnesses . At the hearing on DATE CARDINAL out of CARDINAL witnesses who were to be heard on DATE complied with the summonses . The ORG imposed fines on some of them .","On DATE the President of ORG requested the President of ORG of that ORG to follow closely the progress in the case and to prepare DATE a progress report , with DATE set for DATE .","By a letter of CARDINAL DATE the applicant requested the court to recall CARDINAL of the counsel assigned to his case under the legal aid scheme and to assign the case to the lawyer who had been representing him at the beginning of the proceedings . On DATE the court refused , having noted that the first officially appointed counsel had fallen ill ; subsequently the applicant had withdrawn the power of attorney of the second counsel ; and the third counsel had retired . The court further pointed out that granting the applicant \u2019s request would have resulted in a fifth lawyer financed by the legal aid scheme representing the applicant in the proceedings .","On DATE CARDINAL witnesses were heard . On DATE the hearing was adjourned as the president of the court fell ill .","On DATE the President of ORG reiterated his request to the President of ORG to supervise the proceedings and to present a first report on the progress by DATE .","On DATE the ORG requested the President of ORG to inform him about the progress in the case .","At a hearing on CARDINAL DATE five witnesses out of CARDINAL summoned for that date complied with the summonses . The applicant requested to be released . The court , having heard the prosecutor \u2019s argument in reply , refused to release him in view of the seriousness of the crimes he was charged with . The court further considered that there was the risk of collusion . On DATE the applicant lodged an appeal against this decision with ORG . On DATE ORG upheld the contested decision . The ORG observed that the applicant was suspected of serious crimes and that there was a risk of collusion . The ORG noted that there was progress in the case as hearings were being held . Thus , even regard being had to the fact that the applicant had been detained on remand for DATE , there were no reasons which would justify his release .","On DATE the applicant again requested that his counsel be changed .","On DATE the ORG again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand .","On DATE ORG ordered that accused ORG be released in view of his poor health .","On DATE the applicant requested his release , relying on his rights guaranteed by ORG .","On DATE ORG refused to release the applicant . The ORG noted that the applicant was suspected of dangerous crimes . It also considered that there was a risk of collusion and that , if released , the applicant would jeopardise the criminal proceedings by trying to bear pressure on witnesses and by contacting another co - accused who was not detained .","On DATE the applicant complained to the Minister of ORG about the length of the proceedings .","DATE the ORG composed a list of the addresses of witnesses who had failed to appear on DATE . In particular , the court had to establish the address of the rape victim .","On DATE witnesses out of the CARDINAL summoned for that date complied with the summonses . The applicant requested a medical examination in view of his gastrological problems . The court ordered the medical services of FAC to submit a medical opinion as to their gravity . Another coaccused , who had been released on DATE in view of his illhealth , failed to appear .","On DATE the applicant refused to leave the prison cell . A medical opinion of DATE stated that he suffered from chronic gastritis , but could be treated in the prison .","In a letter of DATE the applicant challenged the judges . He referred to the fact that on DATE the court had ordered the police to force him to leave his cell in order to attend the hearing . On DATE ORG refused to comply with this request .","At the hearing on DATE CARDINAL out of CARDINAL witnesses appeared before the court . On DATE witnesses were heard . On DATE the applicant refused to leave the prison cell , declaring that he felt unwell and he had not received the summons . The court adjourned the hearing in order for a physician to established whether the applicant \u2019s condition prevented him from attending the hearing . Having examined the applicant , the physician stated that there were no medical objections to the applicant \u2019s participation in the hearing .","Further hearings were held on DATE and DATE . On DATE the ORG convicted the applicant of attempted manslaughter , rape and aggravated theft and sentenced him to DATE imprisonment .","On DATE , following the applicant \u2019s appeal , ORG in part quashed the first - instance judgment and ordered that the case be reconsidered . On DATE ORG again convicted the applicant and imposed a sentence of PERCENT imprisonment .","LAW , enacted in DATE applicable at the material time , listed as so - called \u201c preventive measures \u201d , inter alia , detention on remand , bail and police supervision . The authorities competent to decide on detention on remand were provided for in ORG CARDINAL and CARDINAL of the Code , which read as follows :","\" CARDINAL . Preventive measures [ i.e. detention on remand , bail and police supervision ] shall be imposed by the court ; before a bill of indictment is lodged with the court , they shall be ordered by the prosecutor ( ... ) . \"","\" CARDINAL . A decision concerning preventive measures may be appealed [ to a higher court ] ....","A prosecutor 's order on detention on remand may be appealed to the court competent to deal with the merits of the case .... \"","CARDINAL","The courts , when ruling on the prosecutor \u2019s request submitted in pursuance of LAW , were under an obligation to determine the period for which detention could be prolonged . If the court refused to grant the prosecutor \u2019s request for prolongation of detention or if the prosecutor had failed to submit a request for such prolongation before or on the expiry of the last detention order , the detained person had to be released .","Article CARDINAL of the Code provided that a preventive measure should be immediately quashed or altered if the basis therefor had ceased to exist or if new circumstances had arisen which justified quashing or replacing a given measure which a more or less lenient one .","Under LAW ( CARDINAL ) and ( CARDINAL ) of the LAW , detention on remand could be imposed if there was a reasonable risk that an accused would attempt to induce witnesses to give false testimony or to obstruct the due course of the proceedings by any other unlawful means , or if the accused had been charged with an offence posing a serious danger to society .","Under the provisions of the DATE Code there were CARDINAL different legal avenues whereby a detained person could challenge the lawfulness of his or her detention and thus possibly obtain release . Under LAW . \u00a7 CARDINAL of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor ( see \u00a7 CARDINAL above ) . Under LAW \u00a7 \u00a7 CARDINAL(CARDINAL ) and CARDINAL he could lodge an appeal against a further decision by that court prolonging his detention at a prosecutor 's request . Finally , LAW stated that an accused could at any time apply to the authority conducting the criminal proceedings , i.e. the prosecutor or the court , depending on the stage the proceedings had reached , to have a preventive measure quashed or altered .","Imposition and prolongation of preventive measures , including detention on remand , were examined by the courts in proceedings held in camera . The presence of the parties at court sessions other than hearings , including sessions held in proceedings concerning review of detention on remand , was regulated in ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , which , insofar as relevant , provided :","\" The court pronounces its decisions at a hearing if the law provides for it ; and otherwise , at a court session held in camera . ... \"","\" A court session in camera may be attended by a prosecutor ( ... ) ; other parties may attend if the law provides for it . \"","A new Code of Criminal Procedure was enacted by the PERSON ( ORG ) on DATE . It entered into force on DATE . Pursuant to LAW , before deciding on the application of the preventive measures , the court shall hear the person charged with offence . The lawyer of the detainee should be allowed to attend in the court session , if he or she is present . It is not mandatory to inform the lawyer of the date and time of the court session , unless the suspect so requests and if it will not hinder the proceedings .","The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand , or an appeal against a decision to impose or to prolong detention on remand is to be considered ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","5-4","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70228","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2005,"docname":"GREGURINCIC v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr Ivica Gregurin\u010di\u0107 , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr B. Spiz , a lawyer practising in GPE . The respondent Government were represented by successive Agents : PERSON and PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE a member of ORG allegedly damaged the applicant \u2019s car .","On DATE the applicant instituted civil proceedings before ORG ( PERSON ) seeking damages from the ORG .","The court held hearings on DATE , DATE and on DATE .","On DATE ORG Zakon o dopunama PERSON o obveznim odnosima ) entered into force . It provided that proceedings for damage caused by members of the army and the police from DATE to CARDINAL DATE would be stayed .","The court held hearings thereafter : on DATE , CARDINAL DATE , DATE and on DATE . It would appear that the proceedings in issue are still pending .","ORG Zakon o dopunama PERSON o obveznim odnosima , ORG no . CARDINAL , hereinafter \u201c the DATE LAW ) entered into force on DATE . It provided , inter alia , that proceedings instituted against the ORG for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation . The LAW also imposed an obligation on the Government to submit to the ORG such special legislation no later than CARDINAL DATE .","The relevant part of LAW ( Zakon o parni\u010dnom postupku , ORG nos . CARDINAL , GPE , CARDINAL and CARDINAL ) provides :","\u201c Proceedings shall be stayed :","...","( CARDINAL ) where another statute so prescribes . \u201d","The \u201c Damage Caused by Members of ORG and Police during the Homeland War Act DATE \u201d ( Zakon o odgovornosti PERSON \u0161tetu uzrokovanu od pripadnika Hrvatskih oru\u017eanih i redarstvenih snaga tijekom Domovinskog rata , ORG no . CARDINAL , hereinafter \u201c the DATE LAW ) entered into force on DATE . It provides that proceedings which were stayed pursuant to LAW will resume and defines circumstances in which the ORG is liable for damage caused by members of the army and the police during the war .","The relevant part of CARDINAL of LAW DATE ( Ustavni zakon o Ustavnom sudu PERSON , its consolidated text was published in ORG no . CARDINAL\/CARDINAL ) , as amended on DATE , reads as follows :","\u201c ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant \u2019s rights and obligations or a criminal charge against him or her within a reasonable time ...","( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the court with jurisdiction must decide the case on the merits ...","( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4817","languageisocode":"ENG","respondent":"ITA","branch":"ADMISSIBILITY","date":1999,"docname":"ERIKSON v. ITALY","importance":3,"conclusion":"Inadmissible","judges":"Elisabeth Palm","text":["The applicant is a NORP national , born in DATE and living in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant 's mother , born in DATE , used to live in GPE , near GPE , assisted on a DATE basis at her domicile by GPE","On an unspecified date near DATE the applicant 's mother telephoned to the public care doctor , Mr. PERSON , requesting his assistance because her lower abdomen was painful and swelling . The doctor , allegedly without visiting her , wrote a medical prescription recommending x - rays of the applicant 's abdomen ; he left the prescription with the local pharmacy , where GPE went to fetch it on behalf of the applicant \u2019s mother .","On DATE the applicant 's mother went to the local public hospital GPE to have x - rays of her abdomen ; she was accompanied by GPE She was made to drink barium before undergoing the examination ; X - rays were taken of her stomach . She collapsed during the examination ; however , despite her serious health condition , she was subsequently discharged from hospital and sent back home in a wheel - chair . The x - ray plates bear the stamp of ORG but were not signed by the radiologist who carried out the examination , nor was his name indicated .","TIME , on DATE , the applicant 's mother was seized by extremely severe pain . She was taken by ambulance to the above hospital at CARDINALhCARDINAL , where she died at CARDINAL of an intestinal occlusion .","The applicant learned about his mother 's death on that DATE .","In DATE the applicant happened to discuss the circumstances of his mother 's death in detail with a doctor friend of his , who requested to examine the x - ray plates taken of the applicant 's mother on DATE . The applicant obtained from the hospital copy of his mother 's medical file including the x - ray plates and subsequently submitted them to the doctor , who on DATE drafted a medical report according to which the x - ray plates clearly showed that the applicant 's mother had an intestinal occlusion . Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous .","The applicant obtained a second medical report from another doctor , dated DATE and supporting the findings of the first .","A third medical report was drafted by a third specialist on DATE .","On DATE the applicant filed a criminal complaint with the ORG 's Court of Florence , claiming that Mr. PERSON , the public care doctor who had recommended an x - ray examination of the applicant 's mother without examining her beforehand , was to be held responsible for her death and seeking that the identity of any other person responsible for his mother 's death be established and that they all be prosecuted for manslaughter .","Investigations were opened against ORG and other unidentified persons under file no . CARDINAL .","On DATE ORG interrogated ORG in the presence of his counsel . He claimed that he had visited the applicant 's mother before recommending x - rays of her abdomen and that he had left the prescription with her . He said he had suspected a tumour but not an intestinal occlusion . He further stated that , after being informed of the applicant 's mother 's death , he had learned that she had collapsed during the x - ray examination but had not been kept in hospital , which he had found unreasonable on the part of the hospital . He stated that he did not know the identity of the radiologist who had carried out the examination .","On DATE ORG heard GPE as a witness ; she described the circumstances of the applicant 's mother 's death and claimed that the applicant 's mother had not been visited by the doctor PERSON on DATE at issue and that she herself had gone to the pharmacy to fetch the prescription for the X - rays .","ORG , a doctor who was on duty at the hospital on DATE , was also heard as a witness on an unspecified date .","On DATE ORG requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court ( \" gli elementi raccolti non sono sufficienti ed idonei a sostenere TIME in giudizio \" ) .","On DATE the applicant filed an objection to the request to discontinue the investigations ( opposizione alla richiesta di archiviazione ) . He underlined that ORG had not sought to establish the identity of the radiologist who had carried out the x - ray examination of his mother and requested that PERSON , the director of ORG of the hospital , be heard in order to ascertain which radiologists had been on duty on CARDINAL DATE . He further pointed out significative inconsistencies in the testimony of ORG","By a decision of DATE the PERSON Judge for ORG ruled that the investigation be discontinued on the ground that , in the light of the investigations carried out , the elements of the alleged negligence of ORG and of the unidentified radiologist were insufficient to support an accusation in court .","On DATE the applicant requested the ORG Judge for ORG to reopen the investigations . This request was granted on DATE in respect of the unidentified radiologist .","On DATE ORG requested the police to take evidence from all employees of ORG of the hospital who had been present on DATE , with a view to identifying the author of the medical report which was drawn up after the x - rays had been taken , and establishing which typing machine had been used .","CARDINAL of the hospital employees - T.B. , GPE , GPE , GPE - were heard by the police on DATE . They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine . Urgent medical reports were written by hand by the doctors immediately after the examination , whereas non - urgent ones were dictated by doctors and only subsequently typed by an employee , M.T .. Doctors would sometimes type their reports themselves , in particular the Director of ORG . The witnesses were shown the medical report on the condition of the applicant 's mother , drafted on DATE , and found it unusual ; they declared that that kind of x - ray examination was always carried out by a doctor assisted by a technician . They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the ORG . Some of them thought that it had been typed on the ordinary typing machine and not on the computer .","DATE , the employee who used to type non - urgent medical reports , was interrogated by the police on DATE . She explained that the ordinary typing machine was kept in the doctors ' room . She further explained that she used to type the medical reports on behalf of the doctors , who would sign them at DATE ; the reports would not be stamped with the ORG 's name . She was shown the report drafted on DATE and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor .","On DATE PERSON , a radiologist , was examined by the police . He confirmed that non - urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors ; only the Director of the ORG used to type his reports himself . He was shown the report drafted on DATE and confirmed that such kind of examination would be carried out by a doctor assisted by a technician , but could not remember whether he had carried it out himself although he thought he had not , as the report did not have the same characteristics as his usual ones . He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed , and that it had been stamped with the name of the ORG , which was unusual . He further said that if he had been aware of a situation similar to that described in the medical report at issue , he would have tried to contact the patient 's family or family doctor to point out the gravity of the situation .","On DATE PERSON , the Director of ORG , was interrogated by the police . He stated that he had been informed of the case of the applicant 's mother only in DATE , when the applicant had requested certain information from him which he could not provide . He explained that in DATE radiologists and technicians were organised in shifts ; the shift tables used to be thrown away after the end of the relevant week , as they were used only for the purpose of internal organisation . He examined the report of CARDINAL DATE and noticed the absence of the responsible doctor 's name and signature ; he stated that doctors did not type medical reports themselves , but wrote them by hand in urgent cases .","On DATE ORG requested that the investigations be discontinued on the ground that the elements gathered in the course of the \" extremely accurate \" investigations carried out by the police had not led to the precise but only to the \" probable \" identification of the radiologist who had carried out the examination of the applicant 's mother without realising her serious medical condition . ORG considered , however , that the gathered elements , although credible , were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence . On the other hand , ORG considered that the testimonies did not entirely support the deductions of the police .","On DATE the applicant filed an objection to the request to discontinue the investigations . He requested in the first place that further investigations be carried out in respect of ORG He further underlined certain inconsistencies in the testimony of PERSON He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue , given that it was obviously unusual to stamp medical reports with the name of the GPE and about the characteristics of the reports drafted by PERSON finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor .","By a decision dated DATE , the Florence Judge for ORG ruled that the investigations against unknown persons for the manslaughter of the applicant 's mother be discontinued . The judge pointed out in the first place that , by decision of DATE , the investigations had been reopened only in respect of unknown persons and not also in respect of G.T .. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth .","The applicant appealed to ORG against this decision . By a decision dated DATE , ORG rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent ORG margin of appreciation ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97704","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":2010,"docname":"CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM","importance":1,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 14+P1-1","judges":"Christos Rozakis;Dean Spielmann;Fran\u00e7oise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Ledi Bianku;Luis L\u00f3pez Guerra;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Peer Lorenzen;Renate Jaeger;Simon Brown;Zdravka Kalaydjieva","text":["PERSON was born in DATE . She spent most of her working life in GPE , paying ORG contributions ( NICs ) in full , before emigrating to GPE in DATE . DATE she paid further NICs on a voluntary basis ( see paragraph CARDINAL below ) .","In DATE she became eligible for a basic State pension of MONEY ( GBP ) DATE . Her pension has remained fixed at this rate since DATE . Had her pension benefited from uprating in line with inflation , it would now be worth GBP CARDINAL per week ( see paragraphs CARDINAL - CARDINAL below ) .","PERSON brought domestic proceedings challenging the refusal to uprate her pension ( see paragraphs QUANTITY - CARDINAL below ) .","Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full . He emigrated to GPE on his retirement in DATE and became eligible for a State pension in DATE . His basic State pension was then ORG CARDINAL.CARDINAL per week , and it has remained fixed at that level since DATE . Had his State pension benefited from uprating since DATE it would now be worth GBP CARDINAL per week .","PERSON was born in DATE . She spent DATE working in GPE , paying NICs in full , before emigrating to GPE in DATE . She became eligible for a reduced State pension in DATE . Her basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level since DATE .","PERSON was born in DATE . She spent DATE working in GPE , paying NICs in full , before retiring in DATE . She became eligible for a State pension in DATE , and emigrated to GPE in DATE , at which point her ORG pension had increased to GBP DATE . It has remained fixed at that level , whereas the current uprated pension is worth GBP MONEY ( see paragraph CARDINAL below ) .","Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , before retiring in DATE . He became eligible for a State pension in DATE , and emigrated to GPE in DATE , when his DATE State pension was GBP CARDINAL . It has remained fixed at that level since DATE . Had it benefited from uprating , it would now be worth approximately GBP CARDINAL per week .","Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , before emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level since DATE . Had his State pension benefited from uprating , it would now be worth approximately GBP CARDINAL per week .","Mr Doyle was born in DATE . He spent DATE working in GPE , paying NICs in full , before retiring in DATE and emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then ORG DATE , and it has remained fixed at that level since then . Had it benefited from uprating , it would now be worth MONEY per week .","Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , before retiring and emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level since then . Had his State pension benefited from uprating , it would now be worth MONEY per week .","Mr Dancer was born in DATE . He spent DATE working in GPE , paying NICs in full , before emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level . Had it benefited from uprating , it would now be worth MONEY CARDINAL per week .","PERSON was born in GPE in DATE ; it appears that she remains an NORP national . She lived and worked in GPE DATE , paying NICs in full , before returning to GPE in DATE . She made further NICs for DATE , and became eligible for a GPE pension in DATE . Her basic State pension was then GBP CARDINAL per week . DATE and DATE she spent CARDINAL her time in GPE . During this period , her pension was increased to GBP CARDINAL.CARDINAL per week , which included an uprating of the basic State pension . When she returned to GPE , her pension returned to the previous level , that is a basic State pension of ORG CARDINAL per week . Her pension has remained at this level subsequently .","Mr PERSON was born in DATE . His contribution record in the GPE qualified him for a full basic ORG pension in DATE . He emigrated to GPE in DATE , at which point his State pension had increased to GBP CARDINAL per week . Save for DATE when he returned to GPE ( during which time his pension was increased to take into account DATE upratings ) , his State pension has remained fixed at that level since DATE . Had his State pension benefited from uprating , it would now be worth approximately GBP CARDINAL per week .","Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , and became eligible for a State pension in DATE . In DATE he emigrated to GPE . His basic ORG pension was then worth ORG CARDINAL a week , and it has remained fixed at that level . Had it benefited from uprating , it would now be worth approximately GBP CARDINAL per week .","PERSON was born in DATE . She spent DATE working in GPE DATE , paying NICs in full , before emigrating to GPE in DATE . She became eligible for a State pension in DATE . Her basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level .","In DATE PERSON brought proceedings by way of judicial review to challenge the failure to uprate her pension , relying on LAW No . CARDINAL taken alone and in conjunction with LAW .","In a judgment dated CARDINAL DATE ( R ( Carson ) v. Secretary of ORG [ DATE ] EWHC CARDINAL ( Admin ) ) , the first - instance judge , PERSON , dismissed PERSON application for judicial review .","Applying the principles he drew from the case - law of the ORG , the judge found that the pecuniary right that fell to be protected by LAW had to be defined by the domestic legislation that created it . He found that , by the operation of the domestic legislation , PERSON had never been entitled to an uprated pension , so that there could be no breach of LAW No . CARDINAL taken in isolation .","The matter nonetheless fell within the ambit of LAW No . CARDINAL and the judge therefore had to consider whether PERSON had suffered discrimination contrary to the provisions of LAW . The ORG initially contended that country of residence was not a prohibited ground of discrimination under LAW , but this objection was subsequently withdrawn . The judge , however , dismissed PERSON claim on the ground that she was not in a comparable position to pensioners in countries attracting uprating . The differing economic conditions in each country , including local social security provision and taxation , made it impossible simply to compare the amount in sterling received by pensioners . Moreover , even if the applicant could claim to be in an analogous position to a pensioner in GPE or a country where uprating was paid subject to a bilateral agreement , the difference in treatment could be justified .","PERSON appealed to ORG , which dismissed her appeal on DATE ( R ( Carson and PERSON ) v. Secretary of ORG for Work and Pensions [ DATE ] EWCA Civ CARDINAL ) . For similar reasons to ORG , ORG ( PERSON , Laws and PERSON ) found that , since LAW No . CARDINAL conferred no right to acquire property , the failure to uprate PERSON pension gave rise to no violation of that provision taken alone .","As to the complaint under LAW in conjunction with LAW No . CARDINAL , ORG noted that the Secretary of ORG accepted that place of residence constituted a \u201c status \u201d for the purposes of the LAW . However , it found that the applicant was in a materially different position to those whom she contended were her comparators . In this connection it was significant that \u201c the scheme of the primary legislation is entirely geared to the impact on the pension of price inflation in the GPE \u201d . ORG continued :","\u201c There is simply no inherent probability that price inflation in other countries where expatriate GPE pensioners might have made their home ( or , for that matter , any other economic factors ) will have a comparable effect on the value of the pension to such pensioners . They may do better , they may do worse . There will also , of course , be the impact of variable exchange rates . There will be , if I may be forgiven a jejune metaphor , swings and roundabouts . While I certainly do not suggest there are no principled arguments in favour of the DATE uprate being paid to those in Ms Carson \u2019s position , it seems to me inescapable that its being awarded across the board to all such pensioners would have random effects . A refusal by government to put in place a measure which would produce such effects ( which in the end is all that has happened here ) can not be said to stand in need of justification by reason if it is being compared with the clear and certain effects of the uprate for GPE - resident pensioners . \u201d","ORG also considered , in the alternative , the question of justification and found that the \u201c true \u201d justification of the refusal to pay the uprate was that PERSON and those in her position \u201c had chosen to live in societies , more pointedly economies , outside GPE where the specific rationale for the uplift may by no means necessarily apply \u201d . ORG thus considered the decision to be objectively justified without reference to what they accepted would be the \u201c daunting cost \u201d of extending the uprate to those in PERSON position . Moreover , the cost implications were \u201c in the context of this case a legitimate factor going in justification for the Secretary of ORG \u2019s position \u201d , because to accept PERSON arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by LAW DATE , the jurisprudence of this ORG or by a \u201c legal imperative \u201d which was sufficiently pressing to justify confining and circumscribing the elected Government \u2019s macroeconomic policies .","PERSON appealed to ORG , relying on LAW No . CARDINAL read together with LAW . Her appeal was dismissed on DATE by a majority of CARDINAL ( R ( Carson and PERSON ) v. Secretary of ORG for Work and Pensions [ DATE ] ORG CARDINAL ) .","The majority ( Lords PERSON of GPE , PERSON , PERSON of PERSON and PERSON of Gestinghope ) accepted that a retirement pension fell within the scope of LAW No . CARDINAL and that LAW was thus applicable . They further assumed that a place of residence was a personal characteristic and amounted to \u201c any other status \u201d within the meaning of LAW , and was thus a prohibited ground of discrimination . However , because a person could choose where to live , less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic , such as race or sex .","The majority observed that in certain cases it was artificial to treat separately the questions , firstly , whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and , secondly , whether the difference in treatment was reasonably and objectively justified . In the present case , the applicant was not in an analogous position to a pensioner resident in GPE or resident in a country with a bilateral agreement with GPE . GPE pension was CARDINAL element in an interconnected system of taxation and social security benefits , designed to provide a basic standard of living for the inhabitants of GPE . It was funded partly from the NICs of those currently in employment and their employers , and partly out of general taxation . The pension was not means - tested , but pensioners with a high income from other sources paid some of it back to the ORG in income tax . Those with low incomes might receive other benefits , such as income support . The provision for index - linking was intended to preserve the value of the pension in the light of economic conditions , such as the cost of living and the rate of inflation , within GPE . Quite different economic conditions applied in other countries : for example , in GPE , where PERSON lived , although there was virtually no social security , the cost of living was much lower , and the value of the rand had dropped in DATE compared to sterling .","Lord PERSON , who gave one of the majority opinions , put the arguments as follows :","\u201c CARDINAL . The denial of a social security benefit to PERSON on the ground that she lives abroad can not possibly be equated with discrimination on grounds of race or sex . It is not a denial of respect for her as an individual . She was under no obligation to move to GPE . She did so voluntarily and no doubt for good reasons . But in doing so , she put herself outside the primary scope and purpose of the GPE social security system . Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country . They are an expression of what has been called social solidarity or fraternit\u00e9 ; the duty of any community to help those of its members who are in need . But that duty is generally recognised to be national in character . It does not extend to the inhabitants of foreign countries . That is recognised in treaties such as the ORG [ ORG ( Minimum Standards ) Convention DATE ( Article CARDINAL ) and LAW .","Mr PERSON , who appeared for PERSON , accepted the force of this argument . He agreed in reply that she could have no complaint if GPE had rigorously applied the principle that GPE social security is for GPE residents and paid no pensions whatever to people who had gone to live abroad . And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker \u2019s allowance and income support . But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to ORG and then not to pay her the same pension as GPE residents who had made the same contributions .","The CARDINAL feature upon which PERSON seizes as the basis of her claim to equal treatment ( but only in respect of a pension ) is that she has paid the same ORG contributions . That is really the long and the short of her case . In my opinion , however , concentration on this single feature is an oversimplification of the comparison . The situation of the beneficiaries of GPE social security is , to quote ORG in PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL , CARDINAL , para . CARDINAL , \u2018 characterised by a corpus of rights and obligations of which it would be artificial to isolate CARDINAL specific PERSON .","NORP In effect PERSON argument is that because contributions are a necessary condition for the retirement pension paid to GPE residents , they ought to be a sufficient condition . No other matters , like whether one lives in GPE and participates in the rest of its arrangements for taxation and social security , ought to be taken into account . But that in my opinion is an obvious fallacy . ORG contributions have no exclusive link to retirement pensions , comparable with contributions to a private pension scheme . In fact the link is a rather tenuous CARDINAL . ORG contributions form a source of part of the revenue which pays for all social security benefits and ORG ( the rest comes from ordinary taxation ) . If payment of contributions is a sufficient condition for being entitled to a contributory benefit , PERSON should be entitled to all contributory benefits , like maternity benefit and jobseeker \u2019s allowance . But she does not suggest that she is .","The interlocking nature of the system makes it impossible to extract CARDINAL element for special treatment . The main reason for the provision of ORG pensions is the recognition that the majority of people of pensionable age will need the money . They are not means - tested , but that is only because means - testing is expensive and discourages take - up of the benefit even by people who need it . So ORG pensions are paid to everyone whether they have adequate income from other sources or not . On the other hand , they are subject to tax . So the ORG will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension . On the other hand , those people who are entirely destitute would be entitled to income support , a non - contributory benefit . So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support .","None of these interlocking features can be applied to a non - resident such as Ms Carson . She pays no GPE income tax , so the ORG would not be able to recover anything even if she had substantial additional income . ( Of course I do not suggest that this is the case ; I have no idea what other income she has , but there will be expatriate pensioners who do have other income . ) Likewise , if she were destitute , there would be no saving in income support . On the contrary , the pension would go to reduce the social security benefits ( if any ) to which she is entitled in her new country .","ORG and private pensions","It is , I suppose , the words \u2018 insurance\u2019 and \u2018 ORG which suggest an analogy with a private pension scheme . But , from the point of view of the citizens who contribute , ORG contributions are little different from general taxation which disappears into the communal pot of the consolidated fund . The difference is only a matter of public accounting . And although retirement pensions are presently linked to contributions , there is no particular reason why they should be . In fact ( mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary ) there are proposals for change . Contributory pensions may be replaced with a non - contributory \u2018 citizen \u2019s pension\u2019 payable to all inhabitants of this country of pensionable age . But there is no reason why this should mean any change in the collection of ORG contributions to fund the citizen \u2019s pension like all the other non - contributory benefits . On PERSON argument , however , a change to a non - contributory pension would make all the difference . Once the retirement pension was non - contributory , the foundation of her argument that she had \u2018 PERSON the right to equal treatment would disappear . But she would have paid exactly the same ORG contributions while she was working here and her contributions would have had as much ( or as little ) causal relationship to her pension entitlement as they have DATE .","Parliamentary choice","For these reasons it seems to me that the position of a non - resident is materially and relevantly different from that of a GPE resident . I do not think , with all respect to my noble and learned friend , Lord PERSON , that the reasons are subtle and arcane . They are practical and fair . Furthermore , I think that this is very much a case in which ORG is entitled to decide whether the differences justify a difference in treatment . It can not be the law that GPE is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home . Once it is accepted that the position of PERSON is relevantly different from that of a GPE resident and that she therefore can not claim equality of treatment , the amount ( if any ) which she receives must be a matter for ORG . It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she can not claim to be treated equally . And in deciding what expatriate pensioners should be paid , ORG must be entitled to take into account competing claims on public funds . To say that the reason why expatriate pensioners are not paid the DATE increases is to save money is true but only in a trivial sense : every decision not to spend more on something is to save money to reduce taxes or spend it on something else .","I think it is unfortunate that the argument for the Secretary of ORG placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad . It is unnecessary for the Secretary of ORG to try to justify the sums paid with such nice calculations . It distracts attention from the main argument . Once it is conceded , as PERSON accepts , that people resident outside the GPE are relevantly different and could be denied any pension at all , ORG does not have to justify to the courts the reasons why they are paid CARDINAL sum rather than another . Generosity does not have to have a logical explanation . It is enough for the Secretary of ORG to say that , all things considered , ORG considered the present system of payments to be a fair allocation of available resources .","The comparison with residents in treaty countries seems to me to fail for similar reasons . PERSON was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries . They represented whatever the GPE had from time to time been able to negotiate without placing itself at an undue economic disadvantage . But that seems to me an entirely rational basis for differences in treatment . The situation of a GPE expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not . The treaty enables the government to improve the social security benefits of GPE nationals in the foreign country on terms which it considers to be favourable , or at least not unduly burdensome . It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country ( for example , as it has with the ORG [ ORG ] countries ) unless it paid the same benefits to all expatriates in every part of the world . \u201d","Lord PERSON , dissenting , found that PERSON could properly be compared to other contributing pensioners living in GPE or other countries where their pensions were uprated . He continued :","\u201c How persons spend their income and where they do so are matters for their own choice . Some may choose to live in a country where the cost of living is low or the exchange rate favourable , a course not uncommon in previous generations , which may or may not carry with it disadvantages , but that is a matter for their personal choice . The common factor for purposes of comparison is that all of the pensioners , in whichever country they may reside , have duly paid the contributions required to qualify for their pensions . If some of them are not paid pensions at the same rate as others , that in my opinion constitutes discrimination for the purposes of LAW","Lord PERSON therefore considered that the appeal turned on the question of justification . He accepted that the courts should be slow to intervene in questions of macroeconomic policy . He further accepted that , had the Government put forward sufficient reasons of economic or ORG policy to justify the difference in treatment , he should have been properly ready to yield to its decision - making power in those fields . However , in the present case the difference in treatment was not justified : as ORG itself accepted , the reason all pensions were not uprated was simply to save money , and it was not fair to target the applicant and others in her position .","NORP NICs are payable by employees and the self - employed who earn income over a set limit and by employers in respect of employees earning over a set limit . It is also possible for individuals who are not liable to pay compulsory contributions , because for example they are resident outside GPE , to make voluntary contributions to protect the right to certain social security benefits . The amounts paid by employees and employers depend on income . In DATE ) , employees earning between ORG CARDINAL and GBP CARDINAL per week pay PERCENT of their income , with PERCENT paid by the employer . The basic rate for the self - employed is currently GBP CARDINAL per week and the voluntary contributions rate is GBP CARDINAL per week .","The social security benefits paid for from NICs include contribution - based jobseeker \u2019s allowance , incapacity benefit ( now replaced by employment and support allowance ) , maternity allowance , widow \u2019s benefit , bereavement benefit , retirement pensions of certain categories , child \u2019s special allowance and guardian \u2019s allowance . These benefits are financed on a \u201c pay as you go \u201d basis from NICs paid in DATE . If necessary , additional funding can be provided from money received in income tax and other forms of taxation , but this has not been necessary since DATE . NICs also partly pay for the cost of ORG .","The basic State pension is , in DATE , GBP CARDINAL per week . To qualify for a State pension , it is necessary to have reached State pension age and to have paid or been credited with ( or have a husband , wife or civil partner who has been paid or been credited with ) NICs for a sufficient number of \u201c qualifying years \u201d . GPE age is currently CARDINAL for men and CARDINAL for women . It will increase gradually for women from DATE , so that by DATE it will be CARDINAL for both sexes . At present , men need CARDINAL qualifying years by DATE to get a full basic State pension and women who reach DATE need DATE . LAW DATE reduced the number of DATE needed for a full basic State pension to CARDINAL for people who reach State pension age on or after DATE . A percentage of the full basic State pension is payable to an individual without the full number of qualifying years . To get the minimum basic State pension ( PERCENT ) it is normally necessary to have CARDINAL qualifying years .","Individuals resident in GPE who do not have sufficient qualifying DATE to entitle them to a ORG pension may be entitled to non - contributory welfare benefits , such as means - tested income support and housing benefit .","Under CARDINAL of ORG DATE , the Secretary of ORG is required to make an order DATE to increase the basic State pension to maintain its value \u201c in relation to the general level of prices obtaining in GPE \u201d .","Although the basic State pension is payable to individuals resident outside GPE , non - residents are disqualified from receiving uprated pensions . Instead , unless or until they return to live in GPE , they continue to receive GPE at the DATE rate applicable in DATE in which they emigrated or , if they emigrated before reaching retirement age , at the rate applicable in DATE in which they attained retirement age . A non - resident who returns to GPE for a short period receives the uprated pension while in GPE , but , when he returns to his country of residence , the pension reverts to its previous amount .","The exception to this rule concerns individuals who move to ORG which have concluded a bilateral reciprocal social security agreement with GPE which provides for the pensions paid to qualifying individuals to be uprated in line with GPE inflation .","States enter into bilateral agreements to provide on a reciprocal basis for wider social security cover for workers and their families moving between the party countries than is available under national legislation alone . Each results from negotiations between GPE , taking into account the scope for reciprocity between the CARDINAL social security schemes . In all cases the agreement establishes the social security scheme which is to be applied to persons moving from CARDINAL country to work in the other . Generally , the scheme applicable is that of the country of employment . Whether a reciprocal social security agreement with another country is entered into depends on various factors , among them the numbers of people moving from CARDINAL country to the other , the benefits available under the other country \u2019s scheme , how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each ORG . Where an agreement is in place , the flow of funds may differ depending on the level of each country \u2019s benefits and the number of people going in each direction .","Of the bilateral agreements entered into by GPE which cover more than liability for contributions , nearly all cover retirement pensions and widow\u2019s \/ bereavement benefits . The majority also cover sickness , incapacity and maternity benefits . Some cover unemployment and child benefits . Where access to a benefit covered by the agreement is dependent on contributions , the agreement generally provides for aggregation of the contributions paid in each country . Each country then calculates a pro - rata pension based on contributions made in that country . Where access to a benefit depends on a period of residence , the agreement is likely to provide for residence in CARDINAL country to count as residence in the other . Where benefit is paid in CARDINAL country taking account of residence \/ contributions in the other , there is usually a provision for reimbursement of the former by the latter . Not all reciprocal agreements to which GPE is a party , therefore , involve the payment of pension uprating to GPE expatriates .","GPE has reciprocal social security agreements providing for pension uprating with all LOC ( GPE and with GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , GPE , GPE , GPE and GPE . Residents of the ORG countries and the countries listed above who qualify for a GPE pension receive the same level of uprating as GPE residents ; the uprating is based on the rate of inflation in GPE and no regard is paid to inflation in the country of residence .","All the above agreements were concluded DATE , and from DATE onwards the agreements were to fulfil earlier commitments made by ORG . Since DATE , the ORG \u2019s policy has been that future reciprocal agreements should normally be limited to resolving questions of liability for social security contributions . Agreements with GPE , GPE and GPE came into force in DATE , DATE and DATE respectively , but these did not require payment of uprated pensions . The agreement with GPE was terminated by GPE as from DATE , because of the refusal of GPE to pay uprated pensions to its pensioners living in GPE .","During the passage of the Pensions Bill through ORG in DATE , amendments tabled in both ORG , calling for uprating to be paid to all expatriate pensioners , were defeated by large majorities . According to the Government , it would cost MONEY ( MONEY ) to pay the backdated claims to uprating of all GPE pensioners resident abroad in \u201c frozen \u201d countries together with an ongoing DATE bill of MONEY ( PERCENT of the GBP MONEY spent in total by GPE in DATE on pensions ) .","Article CARDINAL of the DATE ORG ( Minimum Standards ) Convention ( \u201c the DATE LAW \u201d ) provides that a benefit to which a protected person would otherwise be entitled in compliance with the DATE LAW ( including old - age benefit ) may be suspended , in whole or in part , by national law as long as the person concerned is absent from the territory of the ORG concerned . The above provision is echoed in DATE NORP Code of ORG and LAW ( f ) of the DATE ORG ( Revised ) .","Part IV of the DATE LAW concerning the Establishment of an International System for the Maintenance of Rights in ORG envisages that equal treatment of the nationals of the Contracting Parties in respect of social security rights , including the retention of benefits arising out of social security legislation whatever the movements the persons protected might undertake between GPE , may be secured by the conclusion of appropriate bilateral and multilateral agreements . Bilateral agreements are the most utilised method of coordination of social security laws and vary greatly in both personal and material scope . Some bilateral agreements cover only nationals of the Contracting Parties , while others apply to any person who has been covered by the social security systems of CARDINAL of the Contracting Parties . They sometimes cover both contributory and non - contributory benefits ; sometimes they are confined to contributory benefits only .","In DATE a ORG initiative to draw up a new framework agreement for the coordination of social security schemes within the member GPE , to enable in particular the export of benefits throughout ORG , was abandoned when it became clear that most countries preferred to maintain the present system of bilateral agreements ( see CM(CARDINAL)CARDINAL , paragraph CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","P1"],"non_violated_paragraphs":["P1-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57742","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1992,"docname":"CASE OF KOLOMPAR v. BELGIUM","importance":3,"conclusion":"Preliminary objection rejected (non-exhaustion);No violation of Art. 5-1;No violation of Art. 5-4","judges":"","text":["Having been extradited from GPE to GPE , Mr PERSON was released from prison on DATE ; he currently resides in GPE .","On DATE the ORG sentenced him in absentia to DATE imprisonment , having convicted him of , inter alia , attempted rape and attempted murder committed on DATE .","By a judgment of CARDINAL DATE , which became final DATE , ORG , also giving judgment in absentia , reduced the prison sentence to DATE ; the accused had been declared untraceable ( irreperibile ) and then to be evading arrest ( latitante ) .","Pursuant to LAW of DATE , ORG and ORG itself granted the applicant , on DATE and CARDINAL DATE , remission of sentence amounting to a total of DATE .","In DATE GPE requested the GPE authorities to extradite the applicant . This request was refused following an unfavourable opinion from ORG ( Arrondissementsrechtbank ) of DATE ; the GPE court took the view that the applicant \u2019s right to defend himself had not been respected .","In DATE GPE made a similar request to GPE , where PERSON was then staying .","On DATE the judgment of CARDINAL DATE and the warrant for his arrest as a convicted person ( ordine di carcerazione di condannato ) issued by the principal public prosecutor at ORG on CARDINAL DATE , together with an official NORP translation of those documents , were served on the applicant by a bailiff in accordance with LAW of DATE ( \" LAW \" ) and the NORP extradition treaty of DATE . The bailiff \u2019s writ stated that the applicant would be detained with a view to his extradition .","On DATE PERSON had been arrested in GPE on suspicion of aggravated theft and attempted theft committed in that country ; the following day an GPE investigating judge had remanded him in custody in respect of these charges .","The investigating judge revoked his detention order on DATE , but the applicant remained in custody in connection with the extradition proceedings ( see paragraph CARDINAL above ) .","On DATE ORG sentenced him to DATE imprisonment for the offences committed in GPE . This judgment was upheld by ORG , whose judgment of DATE became final DATE .","By a letter of CARDINAL DATE the Minister of ORG informed the applicant that , on account of the period that he had spent in detention since DATE ( see paragraph CARDINAL above ) , the prison term was to be deemed to have been completed on DATE .","Following a favourable opinion from the indictments chamber ( PERSON ) of ORG on DATE , on CARDINAL May the GPE Minister of Justice authorised PERSON extradition to GPE .","On DATE the applicant asked the Minister to reconsider his decision and to stay the execution of the extradition order in the meantime . He invoked the opinion of ORG of DATE ( see paragraph CARDINAL above ) .","On DATE he requested the Minister to confirm in writing that he had stated during a meeting with the applicant \u2019s lawyer on DATE that he was prepared to grant an application for a stay of execution of the extradition order .","On DATE the Minister replied to him that the extradition was a matter for the NORP authorities , who might possibly withdraw their request . He advised the applicant to apply to those authorities without delay in that connection , adding that , if the applicant so requested , he could stay the execution of the extradition order ; the duration of such a measure could not however exceed a reasonable time .","By letter of DATE PERSON again asked the Minister of Justice to stay the execution of the extradition decision . In support of his request he provided statements from various witnesses , according to which he had been in GPE on DATE , the date of the offences for which he had been convicted in GPE .","The Minister contacted the NORP authorities . He drew their attention to the applicant \u2019s version of events and asked them to state whether they wished to maintain their extradition request .","On DATE the Director of the GPE extraditions department replied to the above query in the affirmative . He stressed that if there was any new evidence it could serve as the basis for an application for retrial of the case ( Article CARDINAL of LAW ) .","On DATE the Minister sent to the applicant a copy of this letter , notifying him that the extradition procedure would be continued as soon as it was no longer necessary to keep him at the disposal of the NORP authorities for the offences committed in GPE ( see paragraph CARDINAL above ) .","On DATE PERSON wrote to PERSON to ask him to obtain from ORG \u2019s GPE office information which he had himself unsuccessfully sought from the NORP consulate general in GPE .","As a result the Minister instructed the GPE public prosecutor \u2019s office to determine the accuracy of the applicant \u2019s claims concerning his CARDINAL - time presence in GPE ( see paragraph CARDINAL above ) .","A message from ORG to ORG of DATE indicated that the NORP police had questioned the applicant on DATE when he had been in custody in GPE in connection with alleged forgery , attempted theft and receiving stolen goods . He had stated that he had entered GPE on DATE and that it was the first time that he had visited the country . In DATE his wife had affirmed that she had herself arrived in the country on DATE and that her family had lived for a long time near GPE . However , another NORP national , probably residing in the GPE , had maintained in DATE that the couple were living in GPE at the time and that the applicant had visited him on several occasions . A NORP police- officer claimed to remember PERSON but could not certify that he had seen him on DATE .","The text of the message was transmitted to the GPE criminal police on DATE ; on CARDINAL DATE the principal public prosecutor \u2019s office of that town sent to the Minister of ORG a report on the information obtained from ORG .","In the meantime PERSON , having been advised orally that his extradition could take place on DATE , submitted an application for his release to the committals chamber ( Raadkamer ) of ORG on DATE , founded essentially on the alleged unlawfulness of such a measure .","By an order of DATE the committals chamber declared the application inadmissible ; the applicant appealed immediately , relying on Articles CARDINAL , CARDINAL and CARDINAL para . CARDINAL ( article CARDINAL , article CARDINAL , article DATE ) of the LAW . In addition , he requested the Minister of ORG , again on DATE , to stay the execution of the extradition order pending a final decision on his application of DATE . On DATE the Minister sent by telex instructions to this effect to the principal public prosecutor \u2019s office in GPE . The applicant \u2019s lawyer was notified of this by telephone .","On DATE the indictments chamber of ORG confirmed the order of DATE on the ground , inter alia , that it was not empowered to order the applicant \u2019s release . It noted that the fourth subsection of LAW , which provided for the possibility of applying to the investigating authorities for release , ceased to apply once the detainee had been placed at the disposal of the Government with a view to extradition . It added that the provisions of the ORG cited by PERSON did not in themselves confer on it jurisdiction to rule on the matter .","On DATE ORG dismissed the applicant \u2019s appeal filed on DATE . It found that no grounds had been validly and usefully submitted and took the view that the indictments chamber had complied with the essential procedural requirements or the formalities whose disregard entailed nullity and that its decision was lawful .","On DATE the applicant filed an urgent application with the President of ORG seeking an order prohibiting his extradition , which , he contended , would be contrary to Articles CARDINAL para . CARDINAL , CARDINAL and DATE ( article DATE , article CARDINAL , article CARDINAL ) of the Convention on account , inter alia , of the incompatibility of the proceedings conducted against him in GPE with the Convention ; he requested further his immediate release on the ground that his detention was also unlawful for the reasons which his lawyer had given before the indictments chamber of ORG on DATE ( see paragraph CARDINAL above ) .","By a letter of CARDINAL DATE the Minister of ORG drew the attention of the GPE principal public prosecutor \u2019s office to the desirability of staying the execution of the extradition order until a final decision had been given on PERSON application .","The NORP State filed its submissions on DATE ; PERSON submitted his at a hearing held on DATE .","On DATE the President of ORG found that it was not necessary to make an urgent ruling . He noted that under the first paragraph of LAW he was empowered to give \" a provisional ruling where he [ recognised ] that there was urgency , in all matters except those which are excluded by law from the competence of the courts \" and that , according to academic writers and the case - law , this jurisdiction extended to cases of unlawful acts by the authorities ( onrechtmatige overheidsdaad ) . In the present case , however , the contested detention did not represent such an act because it had been lawfully and properly ordered in the context of extradition proceedings in accordance with LAW DATE and the NORP - Italian extradition treaty of DATE . As far as the extradition was concerned , the President considered that it was not for him to determine whether the applicant \u2019s conviction by ORG had infringed the Convention . He added that the applicant could , as the Director of the GPE extraditions department had pointed out ( see paragraph CARDINAL above ) , file an application for a retrial if the conditions set out in Article CARDINAL of LAW were satisfied .","After ORG had served this order on PERSON , the latter filed an appeal against it by a document lodged with the registry of ORG on DATE . By a letter registered on DATE he requested that the case be heard at DATE .","The NORP State filed its submissions on DATE , but the proceedings remained pending . The NORP lawyer appointed to represent the applicant had withdrawn his services pending payment of an advance . His client claimed that he was not in a position to pay , but he had not informed the authorities of this and had not requested legal aid .","By a letter from his lawyer , dated CARDINAL DATE , the applicant informed the Minister of ORG that he no longer opposed his extradition in view of the length of the proceedings instituted both at national and international level , and that he waived his right to rely on the undertaking not to hand him over to GPE pending the outcome of the appeals lodged in GPE .","DATE PERSON was extradited to GPE . He was released from prison there on DATE under an amnesty ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1","5-4"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57828","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":1993,"docname":"CASE OF KRASKA v. SWITZERLAND","importance":3,"conclusion":"No violation of Art. 6-1","judges":"R. Pekkanen","text":["Mr PERSON is a NORP national and lives in GPE . He obtained his diploma in medicine in DATE and has since practised mostly as an assistant doctor ( GPE ) , for which activity he does not require an authorisation in GPE .","On DATE he received the authorisation to practise independently in the canton . The authorisation was , however , withdrawn by ORG ) on DATE on the ground that , having moved to another canton , he had not used it .","The applicant lodged an administrative appeal ( PERSON ) which ORG ( NORP ) of GPE rejected on CARDINAL DATE for the following reasons : the possibility that a new authorisation would be granted as soon as he returned to GPE was not sufficient to confer on the applicant a legally protected interest ; in any event the authorisation in question was not of general validity , but related to a specific activity ; as it was , Mr PERSON no longer lived in the GPE .","From DATE to CARDINAL DATE the applicant worked as an assistant doctor in the emergency service of LOC ( \u00c4rztlicher Notfalldienst des \u00c4rzteverbandes des Bezirks Zurich ) .","On DATE he fetched a partially paralysed patient from a private old peoples\u2019 home and took her back to her flat , where he treated her . Shortly afterwards he drew up a bill on an emergency service form for MONEY and sent it to the guardian ( gesetzlicher PERSON ) of the patient , who had been placed in guardianship on a temporary basis on DATE . The sum in question was to be paid directly into the applicant \u2019s post office account and not that of the medical association .","A prosecution was subsequently brought against Mr Kraska for fraud and various infringements of ORG ; in particular it was alleged that he had treated the patient without being in possession of an authorisation to practise medicine independently as was required under section CARDINAL para . CARDINAL ( a ) of that Act .","ORG ( Bezirksgericht ) acquitted him on DATE , finding inter alia that the indictment had not indicated in sufficiently specific terms the medical treatment involved .","In the meantime , on DATE , the applicant had attempted to obtain a new authorisation . On DATE ORG had refused his request on the ground that he was not \" trustworthy \" within the meaning of section CARDINAL para . CARDINAL of LAW .","On DATE ORG dismissed the applicant \u2019s appeal . It took the view that he had infringed section CARDINAL para . CARDINAL ( a ) of the LAW by submitting a bill for the treatment in question and that his acquittal by ORG made no difference in this respect . ORG noted in particular that in his bill the applicant had himself classified the treatment as medical acts .","In an appeal ( Beschwerde ) to ORG ( Verwaltungsgericht ) the applicant again sought the authorisation to practise his profession independently . The court dismissed his appeal on CARDINAL DATE . It also directed that he should wait until DATE before re - applying .","By a memorial of CARDINAL pages Mr PERSON \u2019s lawyer lodged with ORG ( PERSON ) a public - law appeal ( staatsrechtliche Beschwerde ) , on which CARDINAL judges deliberated at a public hearing on DATE ( section CARDINAL para . CARDINAL of LAW ) . The applicant \u2019s lawyer was present in the courtroom , but was not allowed to address the court . Judge PERSON submitted his report ; Judge Y , who did not in fact have the status of co - rapporteur attributed to him at paragraph CARDINAL of the Commission \u2019s opinion , stated that he was unable to accept the conclusions of the report and proposed a solution contrary thereto . During the discussion which followed , a third judge put forward a counter proposal , which was adopted by the majority .","In a letter to his client , the lawyer described the course of the deliberations . According to him , Judge PERSON had proposed that the applicant \u2019s public - law appeal should be allowed in full and that he should be granted the authorisation to practise . Judge Y had stated that he had been irritated by the length of the memorial , of which he had been able to read TIME or so pages , and had complained that it had not been possible for him to study the file because , owing to an error on the part of the registry , he had not received it until DATE before the hearing ; he had then called for the dismissal of the appeal , basing his view exclusively on the above - mentioned decisions of DATE , DATE and CARDINAL DATE ( see paragraphs CARDINAL above ) .","ORG gave judgment on DATE . By CARDINAL votes to CARDINAL , that of Judge PERSON , it quashed the decision in so far as it imposed a waiting period on the applicant but dismissed the remainder of the appeal .","It first declared a number of the applicant \u2019s complaints inadmissible . It stated , nevertheless , that in cases of this kind , in the event of the appeal \u2019s succeeding , it could by way of exception not only quash the contested decision , but also grant the authorisation sought , if all the other conditions were satisfied .","ORG then noted that , according to its case - law , the right to freedom of commerce and industry , guaranteed by LAW , embraced the right to practise medicine on a professional basis .","Having examined the criticisms levelled by the health authorities , it formed the opinion that CARDINAL of them appeared material to assessing the applicant \u2019s honesty : he had carried out a medical act without the necessary authorisation ; in addition , the bill relating thereto dealt with both medical and non - medical acts and he had drawn it up on an emergency service form , thereby giving the impression that it concerned only the former .","On DATE ORG of the GPE of GPE granted Mr PERSON \u2019s third application for a new authorisation .","On DATE Mr PERSON requested ORG to re - examine its judgment of CARDINAL DATE , complaining that it had given its decision without sufficient knowledge of the file .","His application was dismissed on DATE on the ground , inter alia , that there was no legal basis for reopening the proceedings . ORG summarised the contested deliberations as follows :","\" On the occasion of the public deliberations CARDINAL judge expressed his dissatisfaction that the documents had not been available for a sufficiently long time ( they had been sent first to a substitute judge ) ; he had therefore been able to read thoroughly only the first CARDINAL pages of the - much too long - appeal memorial which comprised CARDINAL pages . \"","Mr PERSON subsequently filed CARDINAL other applications for the reopening of the proceedings in ORG ; they were dismissed on DATE and CARDINAL DATE and on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107139","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2011,"docname":"CASE OF MANDI\u0106 AND JOVI\u0106 v. SLOVENIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicants were born in DATE and DATE and live in GPE and PERSON respectively .","The applicants were detained in GPE prison pending their trial . Mr PERSON was detained in the period between DATE and DATE and PERSON in the period DATE and DATE .","Ljubljana prison is the third largest prison in GPE . It holds sentenced prisoners , remand prisoners and prisoners in administrative detention . It has an official capacity of CARDINAL inmates , which includes CARDINAL places designated for prisoners on remand , who by law must be held in a separate section of the prison . In principle there are CARDINAL types of cells in which the prisoners are held . Small cells measuring QUANTITY ( QUANTITY including the sanitary annex ) and normally containing CARDINAL sleeping places , and large cells measuring QUANTITY ( QUANTITY including the sanitary annex ) and normally containing CARDINAL sleeping places . The windows of the cells face either west or east . Remand prisoners are held on the ground floor , which contains QUANTITY small and CARDINAL large cells , and on the first floor , which has CARDINAL cells , including QUANTITY small and QUANTITY large cells . On the second floor , which contains CARDINAL cells , CARDINAL of which are large cells , both remand prisoners and sentenced prisoners are held . In the loft , which contains QUANTITY large cells , only sentenced prisoners seem to be held .","According to the ORG , plans for constructing the new prison to replace PERSON prison were in progress . However , completion depended on financial resources and no definite date could be given .","The applicants were both detained in cell no . CARDINAL , which was situated on the first floor .","The cell , with a ceiling QUANTITY high , measured QUANTITY . It was equipped with CARDINAL bunk beds with a total of CARDINAL sleeping places , CARDINAL large and CARDINAL small table , CARDINAL chairs and a set of cupboards for each of the detainees . The cell had CARDINAL windows measuring QUANTITY each , which the prisoners were free to open and close . According to the applicants , CARDINAL prisoners were held in the cell in the period of their detention . The Government , however , submitted that the number varied DATE .","The cell had no artificial ventilation . It was aired by opening the windows and , also , opening the doors in DATE when the detainees were out . During DATE , the detainees were also allowed to bring in ventilators , but they rarely did so . The cell was also equipped with a functioning radiator , which the detainees were free to regulate .","The applicants were allowed to bring in a small TV or , with the approval of the prison governor , radios or other electronic devices . In addition , they could borrow books from the prison library and read them in their cells .","According to the data provided by the ORG , the average temperature in the cells in the late afternoon ( TIME ) in DATE and DATE was CARDINAL oC , exceeding CARDINAL oC on DATE .","The applicants received their meals in their cell .","A sanitary annex , measuring QUANTITY , was attached to cell no . CARDINAL . It was a room with floor - to - ceiling walls and a door , equipped with CARDINAL basin with warm and cold water , a toilet , a drain and a mirror . It had a functioning artificial ventilation system .","The applicants had access to the shower room situated on the same floor and containing CARDINAL showers with partitions . According to the Government , the applicants could use the shower for TIME every day in accordance with the DATE schedule .","Detergents and products for personal hygiene were distributed to the detainees on a DATE basis . Their bed linen was washed once DATE and they were given a clean blanket on arrival at the prison . Regular everyday cleaning and thorough DATE cleaning was carried out by the prisoners under the supervision of the prison staff .","In the remand section of the prison the cells were locked throughout DATE . The applicants could leave the cell only for scheduled activities , such as visits , phone calls , exercising , cleaning , etc .","According to the information supplied by the ORG , the applicants were allowed to spend by average TIME and a CARDINAL out of their cell per day . In particular , they could spend TIME per day in the outside yard , which measured QUANTITY and was not covered by any roof . It was usually used by CARDINAL prisoners at a time . In addition , they could use a recreation room , measuring QUANTITY , twice a week for TIME and also for TIME every third DATE . This room was equipped with CARDINAL benches , CARDINAL exercise mats and some weights . The room had natural light . It was usually used by CARDINAL prisoners simultaneously .","A medical office operated in the prison subject to the general regime of the national health - care system . It was open for TIME , CARDINAL times a week . A dental - care office was open DATE for TIME . A psychiatric clinic was open DATE for DATE . The prison also employed CARDINAL psychologists . All detainees underwent a medical examination upon their arrival . Detainees who were using intravenous drugs received vaccinations against hepatitis B following the standard protocol used in such cases .","The prison provided the detainees with the possibility to undergo testing for hepatitis B and C and HIV . In DATE CARDINAL detainees were tested . CARDINAL were diagnosed with Hepatitis C ; other tests were negative , but CARDINAL person was diagnosed with PERSON .","According to the prison records , none of the applicants required special medical treatment . Mr ORG , however , visited the medical office CARDINAL times , including CARDINAL visits to a psychiatrist . He also received dental care . PERSON only underwent a general medical examination upon arrival at the prison .","DATE ( PERSON ) reads as follows :","\u201c No one may be subjected to torture , or inhuman or degrading punishment or treatment . ... \u201d","LAW ( Zakon o kazenskem postopku , Official Gazette no . CARDINAL\/CARDINAL with amendments ) regulates , inter alia , the right of a remand prisoner to a TIME recreation in the open air and the regime of visits , correspondence and other contact with the outside world . It reads , in the relevant part , as follows :","\u201c ( CARDINAL ) A remand prisoner shall have the right to an uninterrupted rest of TIME within TIME . In addition to the above he must be given at least a twohour recreation in the open air every day .","... \u201d","\u201c ( CARDINAL ) With the authorisation of the investigating judge who is conducting the investigation and under his supervision , ... , within the limits of FAC , a remand prisoner may be visited by his close relatives and , upon his \/ her request , also by doctors and others . Certain visits may be prohibited if they might be to the detriment of the [ criminal ] proceedings .","...","( CARDINAL ) A remand prisoner may have correspondence with other persons outside prison . If required ... the investigating judge ... may order the verification of items of correspondence ... \u201d","The Regulation on the Execution of Remand ( PERSON o izvr\u0161evanju pripora , ORG no . CARDINAL\/CARDINAL with amendments ) regulates the treatment of remand prisoners in more detail .","Section CARDINAL lays down rules for the allocation of remand prisoners . It states that a person whose detention on remand is ordered by the GPE or ORG should be placed in GPE prison . Until DATE , when the ORG was amended ( Official Gazette no . MONEY ) , it had provided that if the prison in which the remand prisoner was to be placed under the aforementioned rule was overcrowded , the court could order the placement of the remand prisoner in another facility with available space . The prison governors were then under obligation to send information concerning occupancy levels to the presidents of GPE \u2019s district courts .","Other relevant provisions of the Regulation on the Execution of Remand read as follows :","\u201c ...","( CARDINAL ) Sleeping quarters of remand prisoners may be single or shared , with CARDINAL beds , exceptionally more if so required because of the lack of space in a prison . \u201d","\u201c ( CARDINAL ) Within TIME of admittance to prison , every remand prisoner shall be examined by a doctor ...","( CARDINAL ) NORP If , upon the admittance of a remand prisoner , there is a reasonable suspicion that he is physically injured or has a contagious disease , he must immediately be examined by a prison doctor . \u201d","\u201c ( CARDINAL ) A remand prisoner who is taken ill or injured shall be given medical assistance in a prison health clinic .","( CARDINAL ) If a remand prisoner needs to undergo medical treatment in a medical institution outside the prison , such treatment shall be ordered by a competent court on the proposal of a prison doctor .","... \u201d","\u201c ( CARDINAL ) As a rule , close relatives may visit a remand prisoner once a week .","( CARDINAL ) The Prison Rules may provide for more frequent visits by close relatives , but not CARDINAL visits a week .","...","( CARDINAL ) At the request of a remand prisoner , the competent court may allow visits by other persons as well .","... \u201d","\u201c To contact persons outside the prison , a remand prisoner may use a prison telephone at his own expense . The Prison Rules shall lay down the times when calls may be made and their duration .","... \u201d","The Rules concerning Remand Prisoners in ORG ( Hi\u0161ni red o izvr\u0161evanju pripora v zavodu za prestajnje zapora GPE , adopted on DATE ) regulate the regime in the remand section of the prison in more detail . They provide , in so far as relevant :","\u201c ( CARDINAL ) As a rule , cells occupied by remand prisoners are kept locked ...","... \u201d","\u201c ( CARDINAL ) ORG prisoners shall spend time in the open air in the recreation yard in accordance with the DATE schedule . The time spent in the open air shall be organised in groups and shall be in CARDINAL parts , with each group spending TIME in TIME in TIME in the open air . Sports and recreational activities may be practised in the recreation yard .","( CARDINAL ) The prison shall provide an opportunity for remand prisoners to use the recreation room CARDINAL times a week , in accordance with the DATE schedule . \u201d","\u201c Remand prisoners shall shower in shared bathrooms DATE . \u201d","\u201c ( CARDINAL ) All meals shall be served to remand prisoners in their cells in accordance with the DATE schedule . ...","... \u201d","\u201c ( CARDINAL ) Visits to remand prisoners shall take place on DATE and at times determined in the DATE schedule .","( CARDINAL ) ORG prisoners who receive visits from close family members very rarely because they live a long way away may request an extension of the period allowed for visits and also a change of the day assigned for visits , which shall be permitted by the prison governor , who shall also take into consideration the space available in the prison . \u201d","\u201c ( CARDINAL ) Remand prisoners shall be allowed to make telephone calls in telephone booths located in the remand section of the prison . Remand prisoners may call people outside the prison DATE . The timetable for telephone calls by remand prisoners is determined in the DATE schedule . Remand prisoners shall be allowed to use telephone for TIME . Requests to make telephone calls shall be made to a guard during the TIME roll - call . \u201d","... \u201d","The Daily Schedule ( dnevni red ) is annexed to the rules and determines the timetable of activities in the remand section of the prison .","Since DATE , ORG o zdravstvenem varstvu in zdravstvenem zavarovanju , ORG no . CARDINAL\/CARDINAL with amendments ) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system . They can exercise their rights under LAW with certain exceptions . For example , they can not choose their own general practitioner but are , as regards general health care , limited to the medical service provided in the prison establishment . However , the prisoners are also entitled to medical services for which other insured persons have to pay a supplementary insurance .","The relevant provisions of LAW read as follows :","\u201c ...","( CARDINAL ) For the purpose of guaranteeing safety , order and discipline or the successful and economical conduct of criminal proceedings , the competent court may transfer a remand prisoner from CARDINAL prison to another at the proposal of the governor of the prison in which the remand prisoner is placed . \u201d","\u201c ( CARDINAL ) The indictment shall be served on an accused person who is at liberty without delay ; if the person is on remand it shall be served within TIME following its receipt .","( CARDINAL ) NORP If detention is ordered for the accused person by a decision of the panel ( Section CARDINAL ) the accused person shall , at the time of imprisonment , be served an indictment together with a decision ordering detention .","( CARDINAL ) If an accused person who has been deprived of liberty is not in any of the prisons in the territory of the court at which the main hearing should be held , the president of the panel shall order the accused person to be brought immediately to such a prison , where he shall be served the indictment . \u201d","The relevant provisions of the Regulation on the Execution of Remand provide :","\u201c An accused person whose detention has been ordered shall be transferred by the prison governor on the basis of an order issued by the president of the panel referred to in the third paragraph of LAW of the ZKP . In the prison located in the territory of the court where the main hearing will be held , the remand prisoner shall be placed in a cell for remand prisoners .","In the prison referred to in the preceding paragraph , a protected person must be separated from other remand prisoners and sentenced prisoners in accordance with the instructions of the unit . \u201d","\u201c For the purpose of guaranteeing safety , order and discipline , for reasons of overcrowding or to secure the successful and economical conduct of criminal proceedings , a remand prisoner may be transferred from CARDINAL prison to another . The transfer may be temporary or for the whole duration of the detention .","The competent court shall decide on the said transfer at the proposal of the prison governor .","The written proposal referred to in the preceding paragraph shall contain the reasons for the transfer . The competent court shall decide on the proposal by an order which shall be served on the remand prisoner , the prison in which the remand prisoner is on remand and the prison to which the remand prisoner has been transferred .","... \u201d","LAW ( Zakon o upravnem sporu , Official Gazette no . CARDINAL\/CARDINAL with amendments ) provides in so far as relevant :","\u201c ( CARDINAL ) In an administrative dispute the court shall also decide on the legality of individual acts and actions by which the authorities infringe the human rights and fundamental freedoms of an individual if no other judicial protection is provided .","( CARDINAL ) NORP If actions of public authorities are challenged in an administrative dispute , the provisions of this Act referring to the challenging of an administrative act shall apply . \u201d","\u201c ...","( CARDINAL ) For the reasons referred to in the preceding paragraph , the plaintiff may also request the issue of an interim order for the provisional regulation of the situation with regard to the disputed legal relationship , if such regulation , in particular in still existing legal relationships , proves necessary .","( CARDINAL ) The interim order referred to in the preceding paragraphs shall be issued by the court competent for the decision on the dispute","( CARDINAL ) The court shall decide on the request for the issue of an interim order within CARDINAL ( DATE following the receipt of the request ...","( CARDINAL ) The parties may lodge an appeal against the decision referred to in the preceding paragraph within CARDINAL ( DATE . The appeal shall not stay the execution of the issued interim order . The competent court shall decide on the appeal against the decision without delay , but DATE after receiving the appeal . \u201d","\u201c ...","( CARDINAL ) A claim may be filed against the violation of human rights and fundamental freedoms under LAW seeking :","\u2013 to annul , issue or amend an individual act ,","\u2013 to declare that an action infringed a human right or fundamental freedom of the plaintiff ,","\u2013 to prohibit further action ,","\u2013 to undo the consequences of an action . \u201d","\u201c ( CARDINAL ) In the administrative dispute referred to in the first paragraph of LAW the court may establish the illegality of an act or action , prohibit the continuation of an individual action , decide on the plaintiff \u2019s request for compensation for damage and order whatever is necessary to eliminate the infringement of human rights and fundamental freedoms and restore lawfulness .","( CARDINAL ) The court shall decide without delay on putting an end to the continuation of actions , and on measures aimed at restoring lawfulness if an unlawful action is still ongoing ; an appeal is admissible against the decision within DATE . The ORG shall adjudicate on the appeal within CARDINAL ( DATE following its receipt .","( CARDINAL ) If the court can not decide without delay in the case referred to in the preceding paragraph , it may issue an interim order of its own motion in accordance with section CARDINAL of this Act . \u201d","According to ORG decision of DATE ( no . Up-CARDINAL\/CARDINAL ) , the conditions for admission of a claim to an ORG on the basis of the first paragraph of section CARDINAL of LAW are as follows : it must allege a violation of a human right or fundamental freedom ; there must be a causal link between the violation and the action of the state body ; the result of the action must be unlawful hindrance or limitation of the enjoyment of the human right or fundamental freedom or the prevention of such an enjoyment ; there should be no other judicial protection available ; and the victim must lodge an action for protection from such unlawful action ( ibid . , \u00a7 CARDINAL ) .","The relevant parts of LAW ( PERSON zakonik , ORG , no . CARDINAL\/CARDINAL with amendments ) read as follows :","\u201c ( CARDINAL ) Every person shall have the right to request the court or any other competent authority to order the termination of an action infringing the integrity of the human personality , private and family life , or any other personal right , to prevent such action or remedy its consequences .","( CARDINAL ) The court or another competent authority may order that the offender terminate his or her action , failing which he or she may be obliged to pay the injured party a certain amount assessed in total or with regard to a unit of time . \u201d","\u201c ( CARDINAL ) For physical pain endured , for psychological anguish resulting from a general loss of the ability to perform life functions , disfigurement , defamation ( injuring a person \u2019s good name and reputation ) , or infringement of personal freedom or personal rights , or for the death of a next - of - kin , and for fear experienced , the injured party may , if it is established that the circumstances of a case , and in particular the degree of pain and fear and their duration , justify it , be awarded just monetary compensation irrespective of any compensation for material damage , and even if there is no material damage .","( CARDINAL ) The amount of compensation for non - pecuniary damage shall depend on the importance of what was at stake and the objective of such compensation ; it should , however , not nurture aspirations that are not consistent with its nature and objective . \u201d","Section CARDINAL.d of LAW provides :","\u201c ( CARDINAL ) Supervision of the treatment of remand prisoners is carried out by the president of a district court .","( CARDINAL ) The president of the court or any other judge appointed by the president must visit the remand prisoners at least once per week and must , in the absence of prison guards if necessary , ask them about their treatment . He is required to take the necessary steps to resolve any irregularities observed during the visit . The judge appointed should not be the investigating judge .","( CARDINAL ) A president of a court and an investigating judge may visit a remand prisoner at any time , talk to him and hear complaints . \u201c","The relevant extracts from the CARDINALnd ORG by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) ( ORG ( CARDINAL ) CARDINAL ) read as follows :","\u201c CARDINAL . Overcrowding is an issue of direct relevance to the ORG \u2019s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .","A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...","Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...","Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...","The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet \/ washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners . \u201d","The CPT \u2019s CARDINALth ORG ( ORG ( CARDINAL ) CARDINAL ) contains the following passage :","\u201c CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG \u2019s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) .","An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .","The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... \u201d","NORP The CPT \u2019s CARDINALth General Report ( ORG ( DATE ) CARDINAL ) provides :","\u201c CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...","In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large - capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ...","Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions . \u201d","The ORG visited PERSON prison in DATE and DATE . During its most recent visit in DATE the ORG visited the remand section of GPE prison .","NORP In DATE the number of prisoners held in the prison was CARDINAL prisoners , which is significantly lower than it is currently ( see document ORG ( CARDINAL ) CARDINAL ) . Following the visit in DATE , the following recommendations were made to the NORP authorities ( ORG DATE ) CARDINAL ) :","\u201c ii . NORP Ljubljana prison","NORP ... the ORG reiterates its recommendation that efforts be made to reduce to a maximum of CARDINAL the number of prisoners held in the cells measuring CARDINAL m\u00b2 , and to accommodate CARDINAL prisoner in each cell measuring CARDINAL m\u00b2 . \u201d","Following the visit in DATE , the following observations were made to the NORP authorities in respect of the remand section of GPE prison ( ORG ( DATE ) CARDINAL ) :","\u201c CARDINAL . The objective of DATE follow - up visit to ORG was to examine measures taken by the NORP authorities aimed to implement the ORG \u2019s recommendations with respect to remand prisoners . It should be stated from the outset that the ORG is concerned by the lack of progress as regards remand prisoners\u2019 conditions of detention .","With an official capacity of CARDINAL , the remand section of the PERSON prison was accommodating CARDINAL persons ( including CARDINAL juveniles ) at the time of the visit [ the whole establishment was accommodating CARDINAL prisoners ( with an official capacity of CARDINAL ) ] . Prisoners continued to be accommodated under cramped conditions , with generally CARDINAL persons in CARDINAL m\u00b2 cells and CARDINAL persons in cells measuring CARDINAL m\u00b2 ( including the sanitary annexe ) . Naturally , this situation had negative repercussions for all aspects of life , both for prisoners and staff . The ORG calls upon the NORP authorities to implement its long - standing recommendation to reduce cell occupancy rates at GPE prison . Cells measuring CARDINAL ORG should not accommodate CARDINAL prisoners , and the CARDINAL m\u00b2 cells should preferably not accommodate CARDINAL prisoner .","...","At the time of the DATE and DATE visits , GPE prison was not in a position to offer remand prisoners anything which remotely resembled a programme of activities . Apart from TIME of daily outdoor exercise and access to a recreation room twice a week , the vast majority of those prisoners spent TIME a day confined to cramped cells , their only distraction being watching television , listening to the radio or reading books or newspapers . Regrettably , the situation observed in DATE was hardly any different . The only positive developments concerned increased access to the recreation room ( TIME sessions CARDINAL times a week ) and the installation of a table tennis table in the exercise yard . CARDINAL prisoners were provided with work and CARDINAL had access to education . The ORG reiterates its recommendation that the NORP authorities intensify their efforts to develop a programme of activities for remand prisoners at GPE prison . As stressed by ORG in previous visit reports , the aim should be to ensure that those prisoners are able to spend a reasonable part of DATE outside their cells engaged in purposeful activities of a varied nature ( work ; education ; sport ; recreation \/ association ) ...","...","In respect of remand prisoners , the ORG is pleased that the NORP authorities have implemented its recommendation made in the DATE visit report , enabling remand prisoners to receive open visits from their relatives ( e.g. without a glass partition ) . However , material conditions in the visiting facilities at GPE prison remained unsatisfactory ; especially , they offered little privacy to inmates and visitors and were insufficient for the number of prisoners held .","...","At all the establishments visited , sentenced prisoners had adequate access to telephones . The situation was less favourable in respect of remand prisoners . Although entitled to a CARDINAL-minute conversation DATE , a number of them complained that their calls were in practice shorter . The ORG reiterates the recommendation made in the DATE visit report ( paragraph CARDINAL , ORG ( DATE ) CARDINAL ) that the NORP authorities seek ways of improving opportunities for telephone contact for remand prisoners . \u201d","According to the DATE reports issued by ORG , the remand section of GPE prison held on average QUANTITY remand prisoners in DATE ( DATE Report , CARDINAL . DATE ) and CARDINAL remand prisoners in DATE ( DATE Report , p. CARDINAL ) .","In the chapter concerning the living conditions in NORP prisons , the reports include information on prison overcrowding . The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals , which is QUANTITY for a single occupancy cell and QUANTITY per person in a shared cell . According to the DATE and DATE reports nationwide prison occupancy exceeded the official capacity by CARDINAL and PERCENT respectively . Almost all closed prison facilities accommodating male prisoners were overcrowded . The PERSON prison was the most overcrowded prison in GPE in DATE and DATE . With an official capacity of CARDINAL prisoners , it held CARDINAL and CARDINAL prisoners in DATE and DATE respectively . This meant that the level of overcrowding was CARDINAL and PERCENT respectively ( DATE ORG , pp . CARDINAL and CARDINAL ; DATE Report , pp . CARDINAL and CARDINAL ) . According to ORG , the level of overcrowding in DATE and DATE was CARDINAL and CARDINAL percent respectively ( p. CARDINAL ) . These figures include both sentenced and remand prisoners .","The DATE Report noted that in respect of GPE prison the maximum number of prisoners allowed was set at CARDINAL ; if this number was exceeded the prison administration was required to institute a transfer procedure ( p. CARDINAL ) . The report also noted ( p. CARDINAL ) :","\u201c ... Poor living conditions are coupled with overcrowding , which is most present in the large prisons in GPE , GPE , GPE and GPE . The urgency of improving living conditions has been stressed by ORG the ORG and other institutions .","... It is understandable that such living conditions adversely affect ORG hygiene and privacy . Poor living conditions sometimes also obstruct the exercise of ORG rights ( work , exercise and recreation , religious ceremonies ) . In some establishments , prisoners on remand live in worse conditions than sentenced prisoners . The outdated and inadequate furniture in living rooms and other areas presents an additional problem ... \u201d","On DATE and DATE the ORG conducted a visit to GPE prison in her capacity as a \u201c national preventive mechanism \u201d under LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment ( \u201c the LAW \u201d ) . The report published following the visit reads as follows :","\u201c Official capacity is still CARDINAL prisoners . This includes CARDINAL places designated for prisoners on remand , CARDINAL places for sentenced prisoners and CARDINAL places for prisoners in administrative detention . On DATE of the visit , the prison held CARDINAL prisoners ( CARDINAL prisoners on remand , CARDINAL sentenced prisoners and CARDINAL prisoners in administrative detention ) . The official capacity was therefore exceeded by PERCENT .","... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... ORG has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison , the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ...","We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ...","... In the light of the critical overcrowding and all the consequences which relate to it , we consider the conditions unacceptable .","The prison still does not have a special drug - free unit . ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit . The administration estimated that PERCENT of the prison population have drugrelated problems . ...","Smoking is allowed only in the cells , whereas the prison does not have permanent smoking or non - smoking cells . Efforts are made to separate the smoking and nonsmoking prisoners , but due to overcrowding this is often very difficult or impossible . ...","Prisoners on remand are locked in their cells for on average TIME a day . The only everyday activity outside cells is exercise in the small internal courtyard ... However , a roof has still not been constructed to allow the use of the courtyard in bad weather as well . This has not been improved due to lack of financial means . Other activities which allow remand prisoners to spend time out of their cells include fitness ( twice a week ) , visits ( TIME ) , use of telephone ( TIME twice a week ) , short visits to the prison shop ( CARDINAL times a week ) and showering ( TIME ) . The remand prisoners are also allowed to participate in general cleaning on DATE , which is welcomed , but insufficient .","Our request to allow remand prisoners to spend more time out of their cells was rejected by the prison administration with the explanation that special conditions do not in principle allow for this . ... \u201d","In her report concerning her activities under LAW in DATE , ORG also noted :","\u201c The problem of overcrowding in prisons is one of the most critical and complex problems in the area of enforcing criminal sanctions , especially when it comes to detention on remand . It seems that virtually everything that was possible was done to resolve this problem , by means of the reasonable transfer of prisoners between prisons or their departments .","...","A critical point has obviously been reached when it will be necessary to consider more systemic solutions if the country is to meet its [ domestic and international ] obligations at all ...","...","With regard to remand detainees a presumption of innocence applies and therefore it is wrong that they serve the measure imposed in an even worse situation than sentenced persons who are serving a prison sentence . In addition to poor material conditions , the overcrowding has an impact on several other aspects of serving and executing detention ( problems with organising activities , access to showers , providing an escort outside the institution when necessary , etc . ) . \u201d","As regards the temperatures in the cells , the following was noted in the DATE report of ORG :","\u201c ... During the visit to PERSON prison the official capacity was exceeded by almost CARDINAL percent ... At the time of the visit it was ... typically DATE weather , therefore the air in the cells was hot and humid . On DATE of the visit ( DATE ) we measured , at TIME , QUANTITY in some cells . By using their own ventilators and by means of putting shades on the windows , the prisoners tried to lessen the effect of the scorching ... heat , as their rooms were locked and the air could not circulate . We considered that the living conditions , as observed by us during DATE , were inhuman . \u201d"],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-85804","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"BROOKS v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE . On DATE , the applicant made a claim for widows\u2019 benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged . On an unspecified date the applicant appealed . On DATE the appeal tribunal confirmed the previous decision . The applicant applied for a further reconsideration and on CARDINAL DATE he was advised that he was not entitled to widows\u2019 benefits .","The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110444","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF CHUMAKOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE , LOC .","On DATE a certain PERSON . was murdered . On DATE the police initiated criminal proceedings in that connection .","On DATE a certain Mr M. , who had been arrested for the administrative offence of public drunkenness , complained to the police that DATE before the applicant had allegedly sworn at him and attempted to start a fight .","On DATE an administrative offence record was drawn up in respect of the applicant by police officers PERSON and PERSON The applicant denied Mr PERSON \u2019s allegations .","On DATE he was found guilty of disorderly conduct and sentenced to CARDINAL days\u2019 administrative detention by the Justice of ORG .","On DATE , pursuant to the aforementioned judgment of the same date , the applicant was placed in the temporary holding facility of ORG of GPE ( \u201c the district police department \u201d ) .","According to the applicant , CARDINAL police officers forced him to confess to the murder of PERSON . by beating him up and threatening him with rape with a rubber truncheon .","On DATE the applicant signed a confession to the murder of PERSON . He stated , in particular , that he had strangled her with a TV power cable .","On DATE the investigator in charge recorded the applicant \u2019s arrest on suspicion of murder .","NORP The investigator also ordered a forensic medical examination of the applicant , which was carried out on DATE by a medical expert with CARDINAL years\u2019 experience , who certified that he had no injures ( certificate no . CARDINAL ) .","On DATE ORG of GPE ( \u201c the ORG \u201d ) ordered the applicant \u2019s placement in custody as a preventive measure , stating that he was suspected of having committed a particularly serious criminal offence , might abscond from justice and had been given negative character references at the place of his residence . The applicant was then transferred to the remand centre \u201c SIZO-CARDINAL\/CARDINAL \u201d of GPE .","On DATE the applicant was formally charged with murder .","On DATE ORG extended the term of the applicant \u2019s pre - trial detention until DATE . The applicant \u2019s counsel argued that there were no grounds to believe that the applicant might abscond , that he had a permanent place of residence and permanent work and had confessed to the crime . The fact that he was accused of a serious criminal offence could not , as such , be the basis for his continued pre - trial detention . The court decision read as follows :","\u201c Bearing in mind that it is impossible to complete the pre - trial investigation within DATE ... there are no grounds to change or quash the preventive measure [ with regard to the applicant ] , considering that [ the applicant ] is charged with a particularly serious crime associated with a high risk to society , which does not exclude the possibility of him absconding from the investigating bodies and the court , the judge finds it necessary to grant the investigator \u2019s request for the extension of the term of detention ... \u201d","The applicant did not appeal against that decision .","On DATE the applicant requested the investigator to exclude his self - incriminating statements of DATE from the body of evidence , alleging that he had confessed to the murder under physical and psychological pressure by the police officers during his administrative detention . The applicant alleged that TIME they had taken him out of his cell to their office and had psychologically pressurised him to confess .","On DATE ORG examined the investigator \u2019s application for the extension of the applicant \u2019s detention . The applicant stated that he had no intention of absconding or influencing witnesses and asked to be released . The court extended the term of his pre - trial detention until DATE for the following reasons :","\u201c Bearing in mind that it is impossible to complete the pre - trial investigation within DATE ... there are no grounds to change or quash the measure of restraint [ with regard to the applicant ] , considering that [ the applicant ] is charged with a particularly serious crime , and might impede a thorough , comprehensive and objective investigation or abscond from the investigating bodies , the judge finds it necessary to grant the investigator \u2019s request for the extension of the term of detention ... \u201d","It does not appear that the applicant appealed against this decision .","On DATE the applicant was served with a copy of the bill of indictment for the murder .","On DATE the case was sent to ORG for trial .","Upon receipt of the case file , on DATE ORG scheduled a preliminary hearing for DATE . It also ordered that the preventive measure of detention should remain unchanged . It does not appear that the applicant appealed against this decision .","On DATE ORG found the applicant guilty of murder and sentenced him to DATE imprisonment . It relied , in particular , on his self - incriminating statements . It took into account statements by the police officers , who denied ill - treating the applicant , and the medical expert report , according to which the applicant \u2019s examination on DATE had not revealed any injuries on him , and dismissed the applicant \u2019s allegations of ill - treatment as unsubstantiated .","On DATE the applicant \u2019s counsel obtained written statements from a certain Mr PERSON . who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department from CARDINAL to CARDINAL DATE . He stated that the applicant had been taken out of his cell in TIME . After his return the applicant had told him that the police officers had beaten him up and that they had threatened him with rape with a rubber truncheon .","On DATE ORG examined the applicant \u2019s appeal against his conviction . It found that the evidence on which the judgment was based contained a number of discrepancies which had not been resolved by the trial court and that the failure to summon witnesses for the applicant properly had undermined the adversarial nature of the trial . It also held that the applicant \u2019s allegations that his self - incriminating statements had been obtained under duress had not been thoroughly examined ; that the police ORG statements did not constitute sufficient evidence of their proper conduct ; and that the applicant \u2019s counsel \u2019s complaint to the prosecutor \u2019s office of LOC ( \u201c the district prosecutor \u2019s office \u201d ) about the unlawful acts of the police had been left unanswered and no inquiry in that connection had been conducted . ORG thus quashed the judgment and remitted the case for a fresh examination by the first - instance court . It also ordered that the applicant remain in custody .","On DATE the case file arrived at ORG .","On DATE ORG extended the term of the applicant \u2019s detention until DATE , stating that the applicant was charged with a particularly serious criminal offence and that , if released , he might impede the criminal proceedings or evade trial . It also noted that the case had been before the courts for DATE ; that the initial term of the applicant \u2019s detention established in LAW had expired and that it should be extended for DATE . The applicant , who was neither present nor represented at the hearing , did not appeal against this decision .","On DATE the applicant \u2019s lawyer obtained further written statements from Mr PERSON . , who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department in DATE . The applicant had been taken out of his cell in TIME . After his return the applicant had told him that the police officers had beaten him in the area of the kidneys and liver . Mr PERSON . further stated that he had seen fresh scratches on the applicant \u2019s left shoulder and elbow and that the applicant \u2019s lower lip had been hurt .","On DATE ORG rejected the applicant \u2019s request for release under an undertaking not to leave a specified place and , with reference to LAW of LAW , extended his detention for DATE until DATE on the same grounds as those given in its decision of CARDINAL DATE . The applicant \u2019s lawyers referred to the length of detention , the applicant \u2019s innocence and the deterioration of his health . The applicant appealed against the decision , arguing , in particular , that it was insufficiently reasoned .","On DATE ORG quashed the decision of DATE , referring to the absence of a transcript of that hearing in the materials of the case , and remitted the matter to the same court for a fresh examination .","On DATE ORG ordered , under LAW of LAW , that the term of the applicant \u2019s detention be extended until DATE . It relied on the same reasons as those which were set out in the decision of CARDINAL DATE . The applicant \u2019s lawyers referred to the absence of reasons for the applicant \u2019s continued detention , in particular the lack of grounds for the risk of him absconding , his permanent place of residence and work , positive references and the length of his detention . The court stated that at that stage it could not take into account the argument concerning the applicant \u2019s innocence . It did not address any other arguments put forward by the applicant \u2019s lawyers . The applicant did not appeal against that decision .","On DATE ORG again examined the question of the preventive measure applied to the applicant . The applicant asked to be released , referring to the deterioration of his health and stomach complaints . His lawyers referred to the excessive length of his detention , the absence of reasons to believe that he might abscond or otherwise impede the proceedings and the fact that he had received positive character references . The court dismissed their request for release and extended , on the basis of LAW of LAW , the applicant \u2019s detention for DATE , until DATE , for reasons identical to those cited in its previous decisions . It did not address the applicant \u2019s lawyers\u2019 arguments . It does not appear that the applicant appealed against that decision .","On DATE the applicant \u2019s father \u2019s flat was searched . The applicant \u2019s father \u2019s complaints about the unlawfulness of the search were dismissed by the district prosecutor \u2019s office on DATE and by ORG on DATE .","On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . It examined , in particular , witness PERSON . ( see paragraphs CARDINAL and CARDINAL above ) who stated before the court that the applicant had not complained about any ill - treatment by the police officers and that he had not seen any injures on the applicant . According to Mr PERSON . , his previous statements to the contrary had been false and had been given at the request of the applicant \u2019s parents and defence counsel in order to help the applicant . CARDINAL other witnesses , Mr NORP and PERSON , who had also been held in the applicant \u2019s cell at some point in DATE , also stated that they had neither heard from the applicant about any pressure by the police nor seen any injures on him .","On appeal , on DATE ORG found that the trial court had failed to assess the arguments put forward by the defence properly and that the applicant \u2019s right to defend himself had been violated . It quashed the judgment of DATE and remitted the case to ORG for a fresh examination . ORG also ordered that the applicant \u2019s detention on remand as a preventive measure remain unchanged .","On DATE the case file arrived at ORG .","On DATE ORG scheduled a preliminary hearing in the case for DATE . It also ordered that the preventive measure applied to the applicant in the form of detention on remand remain unchanged . It does not appear that the applicant appealed against that decision .","On DATE ORG extended , with reference to LAW of LAW , the term of the applicant \u2019s detention for DATE , to be calculated from CARDINAL DATE until DATE . The court noted that the term of the applicant \u2019s detention , as previously extended on DATE ( see paragraph CARDINAL above ) , had expired on CARDINAL DATE , and that it had received the case file from ORG only on DATE . The applicant requested the court to release him , referring to the deterioration of his state of health and his stomach ulcer . The court held as follows :","\u201c ... the accused ...... established in detail ... in the course of the trial , the evidence which could have determined [ his ] guilt [ or innocence ] was not examined ...","The positive character references of the accused ... do not constitute sufficient grounds to release him ... because , if released , he might abscond ... and hinder the establishment of the truth in the case .","The court can not take into account ... the claim that the accused is ill and needs medical treatment as he has not submitted any relevant documents .","The court has not established any procedural violations in respect of his detention on remand . \u201d","The applicant and his counsel appealed against the decision of CARDINAL September CARDINAL , arguing that the previously authorised term of the applicant \u2019s detention had expired on CARDINAL DATE and had not been extended by the court . According to them , the applicant had therefore been detained unlawfully for DATE from DATE to DATE .","On DATE ORG upheld the decision of DATE on appeal . It stated that the fact that the applicant was accused of a particularly serious criminal offence had rightly been taken into account by the first - instance court ; that the applicant \u2019s state of health did not preclude his being kept in custody and that there had , therefore , been sufficient reasons for extending his detention .","On DATE and DATE ORG further extended the term of the applicant \u2019s detention on remand until DATE and CARDINAL DATE respectively . In its similar decisions the court relied on the same reasons to justify the applicant \u2019s continued detention as those set out in the decision of DATE . The applicant did not appeal against either of those CARDINAL decisions .","On DATE ORG convicted the applicant of murder and sentenced him to DATE imprisonment . During the hearing witness PERSON . ( see paragraphs CARDINAL , DATE and DATE above ) stated that the applicant had sometimes been taken out of his cell for interrogation after TIME , that he had seen a scratch on the applicant \u2019s lip and that the applicant had told him that he had been beaten up . According to PERSON . , he did not remember whether there had been other injuries on the applicant . PERSON . also stated that he had lived at the applicant \u2019s GPE home for DATE and had done some work for them and that the applicant \u2019s family had supported him when he had been detained in the context of another criminal case .","On DATE ORG quashed the judgment and remitted the case to ORG for a fresh examination . It found , in particular , that the first - instance judgment was based on conflicting evidence . It also held that the preventive measure should remain in place as there were no grounds to release the applicant .","On DATE the case file arrived at ORG .","On DATE ORG held a preliminary hearing in the case for the purpose of taking a decision on the preventive measure to be applied in respect of the applicant . The applicant requested the court to replace his detention with any preventive measure other than deprivation of liberty . His counsel requested that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour , since the applicant had been held in custody for DATE , had positive character references and did not intend to evade the trial . The prosecutor asked for the preventive measure to remain the same .","ORG noted that the applicant \u2019s criminal case had been pending before the court since DATE , and that from DATE his detention had been regulated by LAW of LAW , which allowed it to be extended beyond the initial DATE period for further periods of DATE . It further noted that the term of the applicant \u2019s detention had been extended on numerous occasions , and that the last time , on DATE , ORG had authorised his detention until DATE . It also noted that before the expiry of that period , on DATE , the applicant had been convicted by the trial court . The court then noted that the term of the applicant \u2019s detention , as extended on DATE , should be considered as having run out on DATE , provided that the period between DATE , the date of the conviction , and DATE , the date of its quashing on appeal , was excluded from the term of detention on remand , in accordance with paragraph CARDINAL of resolution no . CARDINAL of ORG of GPE dated DATE . The court thus held that the term of the applicant \u2019s detention had not been extended in accordance with a procedure prescribed by law and that therefore , despite the seriousness of the charge against him , there were no legal grounds for his further detention on remand . It ordered that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour and that the applicant be released immediately .","On DATE the prosecutor appealed against that decision , arguing that ORG had erred in its interpretation of paragraph CARDINAL of resolution no . CARDINAL of ORG of GPE dated DATE , since it followed from the meaning of LAW that the term of detention should run from DATE of a criminal case \u2019s arrival at a first - instance court and not from DATE of delivery of an appellate court \u2019s decision . Therefore , in the prosecutor \u2019s opinion , the term of the applicant \u2019s detention should have run out on DATE . The applicant disagreed , pointing out the fact that he was employed , that he did not intend to evade justice and that he simply wanted the trial to be concluded as soon as possible and his good name restored .","On DATE ORG found that ORG had violated LAW of LAW , as the term of detention of a person who had committed a serious or particularly serious criminal offence had to be extended by a court decision each time , and such extension could not be authorised for a period DATE at any one time . It went on to agree with the prosecutor \u2019s submissions and stated that the term of the applicant \u2019s detention should have started running on DATE , the date when the case file had been received by ORG , and that therefore it should be regarded as having expired on DATE . The court then held that this procedural breach was grounds for the annulment of the decision of CARDINAL DATE , and ordered that the case be sent to ORG for a new examination . According to the applicant , he attended the hearing of DATE and was placed in detention immediately after that hearing .","DATE . On DATE ORG ordered the applicant \u2019s release on an undertaking not to leave his place of residence . It stated that the applicant had been held in detention on remand for DATE , that after his release on DATE he had immediately started working and that he had been given positive character references from his employers . The court held that there were no reasons to believe that he would evade the trial or put pressure on witnesses and thus obstruct the establishment of the truth , and therefore there were no grounds to keep him in detention . The applicant was released immediately .","On CARDINAL DATE ORG examined the criminal case against the applicant for the fourth time . At the hearing , the applicant insisted that he was innocent and reiterated that he had made his confession at the pre - trial stage because he had been beaten and threatened by the police .","ORG observed that the charge against the applicant had mainly been based on his self - incriminating statements and written confession made during the preliminary investigation , which he had later repudiated as having been made under duress . It further noted , as regards the applicant \u2019s medical examination on DATE , which had not revealed any injuries on him , that the applicant had not been apprised of the investigator \u2019s order to carry out that examination until it had been over . Therefore , in ORG opinion , a note on the resulting expert report to the effect that the applicant had had no comments or questions for the expert , and had not wished to call into question the expert \u2019s authority , was devoid of any legal meaning .","The court further stated that on DATE the decision of CARDINAL DATE , by which the district prosecutor \u2019s office refused to institute criminal proceedings in respect of the applicant \u2019s allegations of ill - treatment during his administrative detention in DATE , had been quashed , and that on DATE the district prosecutor \u2019s office had again refused to institute criminal proceedings owing to the absence of the constituent elements of a criminal offence in the police ORG actions . In ORG opinion , however , the applicant \u2019s allegation that he had made self - incriminating statements and had signed his confession as a result of coercion by the police was corroborated by the evidence in the case .","NORP In particular , the court examined the register of detainees of the temporary holding facility where the applicant had been held and noted that the applicant had been taken out of his cell on DATE , from TIME , and on DATE from TIME to TIME and from TIME to TIME The court further observed that , according to the applicant \u2019s written confession , it had been given on DATE in office no . CARDINAL of the temporary holding facility and not in his cell . However , the register did not contain any records confirming that he had been taken out of his cell on DATE . Therefore , ORG doubted the reliability of the official records . It found that the applicant \u2019s confession could not be regarded as having been given voluntarily and was therefore inadmissible as evidence .","ORG also noted that , when the applicant had been interviewed as a suspect on CARDINAL and DATE , he had not been warned that his statements could be used as evidence , in breach of the domestic law . Having examined the body of evidence in the case , ORG further stated that it had been contradictory in a number of aspects . In particular , a report on the medical forensic examination of PERSON . \u2019s body had attested to the presence of numerous internal injuries . The investigating authorities , however , had never attempted to establish the circumstances in which the victim had sustained those injuries , and the applicant had never admitted inflicting any such injuries on the victim , simply having confessed to having strangled her ( see paragraph CARDINAL above ) . In this respect ORG noted that , as was clear from the materials of the case , at the time when the applicant had made his self - incriminating statements and signed his confession , the aforementioned expert examination had not yet been carried out and the investigating authorities had not known of the existence of those injuries .","The court further listed a number of other shortcomings in the preliminary investigation and discrepancies in the adduced evidence . It found it unproven that the applicant had committed the imputed offence . The court thus acquitted the applicant and acknowledged his right to rehabilitation .","On DATE ORG upheld the judgment on appeal . It agreed with the trial court \u2019s finding that the confession had been signed as a result of coercion by the police officers . The court noted in this respect that the very fact that the applicant had been taken out of his cell in breach of relevant regulations had been the proof of coercion , and therefore the arguments of the prosecuting party in the appeal submissions to the effect that the trial court had failed in its judgment to specify the methods of that coercion and to identify those responsible were unfounded . It also agreed with the trial court that the applicant \u2019s self - incriminating statements , which he had later repudiated , had contradicted the other evidence in the case .","On DATE the applicant \u2019s counsel lodged a complaint with the district prosecutor \u2019s office about the applicant \u2019s ill - treatment by the police officers from the district police department . An inquiry was carried out in connection with that complaint . Several police officers were questioned . They all denied the applicant \u2019s allegations of ill - treatment .","On DATE the district prosecutor \u2019s office decided , relying on their statements and medical expert certificate no . CARDINAL of DATE , to dispense with criminal proceedings in respect of the applicant \u2019s allegations of ill - treatment owing to the absence of evidence that any crime had been committed . The applicant did not appeal against the decision in court .","On DATE the district prosecutor \u2019s office received a complaint from the applicant \u2019s mother about alleged ill - treatment of the applicant by the officers of the district police department .","On DATE a decision not to prosecute the police officers was taken . The ORG has not been furnished with a copy of that decision . It does not appear that the applicant attempted to challenge the decision in question before a court .","On DATE the district prosecutor \u2019s office quashed the decision of DATE and ordered an additional inquiry .","During that inquiry PERSON , the head of the investigation department , responsible for the investigation of PERSON . \u2019s murder at the time of the events in question , and PERSON , deputy head of the temporary holding facility of the district police department at the material time , were interviewed . They stated that no physical or psychological pressure had ever been exercised on the applicant and that the applicant had voluntarily confessed to the murder and later confirmed his self - incriminating statements during an interview in the presence of his lawyer .","On DATE the district prosecutor \u2019s office , with reference to the aforementioned statements of PERSON and PERSON , decided not to institute criminal proceedings in connection with the applicant \u2019s allegations owing to the absence of the constituent elements of a criminal offence in the police ORG actions . The applicant did not appeal against that decision in court .","On DATE the prosecutor \u2019s office of the Stavropol Region quashed the decisions of DATE and CARDINAL DATE as unlawful and unfounded in view of the investigating authorities\u2019 failure to establish all the relevant facts . In particular , it pointed out that the applicant had not been questioned ; that the materials of the inquiry lacked an extract from the official records of requests for medical aid in the period from DATE ; that the register of detainees of the temporary holding facility , where the applicant had been held during the relevant period , had not been examined with a view to establishing when and by whom the applicant had been taken out of his cell(s ) for interrogation and to identifying who had been in the cell(s ) with him so that they could be questioned in respect of his allegations ; that a police officer who had been present when the applicant had signed his confession had not been questioned in that connection ; that another police officer who had drawn up the administrative offence record in respect of the applicant had not been questioned in that connection ; and that PERSON and PERSON , who had allegedly shared a cell with the applicant , had not been interviewed either . The district prosecutor \u2019s office was thus ordered to eliminate those defects in the course of an additional inquiry .","In a decision of CARDINAL DATE the district prosecutor \u2019s office again refused to institute criminal proceedings against the police officers owing to the absence of the constituent elements of a crime in their actions .","According to the decision , when interviewed during an additional inquiry , the applicant had stated that on DATE he had been taken from his home to a police station where he had met police officers PERSON and PERSON The latter had drawn up , on PERSON instructions , an administrative offence record which stated that that the applicant had used obscene language in public . The applicant had been held at the police station from TIME and then transported to the district police department . On DATE he had been placed under administrative arrest for DATE and placed in the temporary holding facility of the district police department . Each night the officers of the ORG district police department , PERSON and PERSON , had taken him to an office on the third floor in which they had subjected him to psychological pressure . On DATE , because of that pressure , he had been compelled to make a written confession to the murder of PERSON . , which had been dictated to him by PERSON","The decision went on to quote police officer PERSON , who had stated that he had been present when his subordinates , PERSON and PERSON , had interviewed the applicant . No physical or other form of coercion had been used on the applicant , who had voluntarily confessed to the murder and then confirmed his statements in the presence of his counsel .","DATE . Mr Z. , deputy head of the temporary holding facility of the district police department at the material time , had stated that no force had ever been applied to the applicant , who had made no complaints during his detention in that facility . Mr PERSON also stated that the applicant , PERSON and PERSON S. had never been held in the same cell at the same time .","PERSON had stated that on DATE he had been told that the applicant wished to see him . He had met the applicant at the temporary holding facility . The applicant had told him that he had killed PERSON . and had voluntarily written out his confession .","Mr B. had stated that on DATE Mr PERSON had complained to him that the applicant had sworn at him . He had drawn up an administrative offence record and sent it to the court .","Mr NORP , who had been detained in the temporary holding facility from CARDINAL to DATE for committing an administrative offence , had confirmed that he had shared a cell with the applicant and stated that the applicant had not made any complaints concerning the police officers who had questioned him . PERSON , another detainee during the relevant period , had also been interviewed but had not given any relevant information regarding the applicant \u2019s allegations .","The decision then indicated that , according to the temporary holding facility records concerning medical aid , the applicant had never applied for medical assistance . Nor had he made any complaints concerning his health .","The decision further stated that , according to the temporary holding facility register of detainees , the applicant had been taken out of his cell on DATE at TIME by PERSON and brought back at TIME ; on DATE he had been taken away at TIME by PERSON and brought back at TIME On DATE the applicant had been taken out of his cell from TIME until TIME for the examination of his statements on the scene of the crime . For the rest of the time the applicant had stayed in his cell .","NORP The decision thus concluded that during the inquiry the applicant \u2019s allegations of ill - treatment had proved unfounded . The applicant did not appeal against that decision in court .","Since DATE , criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE , \u201c the Code \u201d ) .","DATE . \u201c Preventive measures \u201d include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . When deciding on a preventive measure , the competent authority is required to consider whether there are \u201c sufficient grounds to believe \u201d that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( Article CARDINAL ) . It must also take into account the gravity of the charge , information on the accused \u2019s character , his or her profession , age , state of health , family status and other circumstances ( Article CARDINAL ) . In exceptional circumstances , and when there exist grounds provided for by Article CARDINAL , a preventive measure may be applied to a suspect , taking into account the circumstances listed in LAW . If necessary , the suspect or accused may be asked to give an undertaking to appear in court ( LAW ) .","The Code makes a distinction CARDINAL types of custody : the first being \u201c pending investigation \u201d , that is , while a competent agency \u2013 the police or a prosecutor \u2019s office \u2013 is investigating the case , and the second being \u201c before the court \u201d ( or \u201c pending trial \u201d ) , at the judicial stage .","A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW ) . The maximum length of detention pending investigation is DATE ( Article CARDINAL ) . A judge may extend that period DATE ( LAW ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) .","From the time the prosecutor sends the case to the trial court , the defendant \u2019s detention falls under the category \u201c before the court \u201d ( or \u201c pending trial \u201d ) . The period of detention pending trial is calculated up to the date on which the first - instance judgment is given . It may not normally exceed DATE from the moment the case file arrives at the court , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .","In its resolution no . CARDINAL of CARDINAL March CARDINAL \u201c On ORG of LAW \u201d , as in force at the relevant time , ORG of GPE noted with regard to the provisions of LAW of the LAW , that , when deciding whether to extend a defendant \u2019s detention pending trial , the court should indicate the grounds justifying the extension and its maximum duration ( paragraph CARDINAL ) .","It also stated that , within the meaning of LAW , the period after conviction by the first - instance court until such conviction became final , being upheld on appeal , could not be taken into account for the purpose of calculating the DATE period of an individual \u2019s detention pending trial ( paragraph CARDINAL ) ."],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-3"],"violated_bulletpoints":["5-1-c"],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92116","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2009,"docname":"BERGER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , PERSON , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant was first questioned by the police on suspicion of CARDINAL counts of abetting economic subsidy fraud . The indictment was issued on DATE .","On DATE ORG opened the main proceedings .","On DATE ORG informed the applicant that it intended to terminate the proceedings in accordance with Article PERSON of LAW as it considered that the length of proceedings precluded their continuation ( see \u201c Relevant domestic law \u201d below ) .","On DATE the applicant gave his consent to that discontinuation .","On DATE the prosecutor \u2019s office submitted that it would contest such termination of the proceedings . However , it suggested discontinuing the proceedings in accordance with LAW ( see \u201c Relevant domestic law \u201d below ) .","On DATE ORG discontinued the proceedings in accordance with LAW after the applicant \u2019s lawyer had agreed to the proposed termination of the proceedings on DATE .","On DATE the sitting judge of ORG instructed the court \u2019s registry to formally serve the discontinuation order on the applicant \u2019s defence counsel and to informally transmit a copy of that decision to the applicant together with other documents , such as the submissions of ORG of DATE .","On DATE the applicant \u2019s defence counsel acknowledged receipt of the court \u2019s decision of DATE .","On an unspecified date the applicant received ORG letter of DATE ; however , it is disputed between the parties whether that letter contained the court \u2019s decision to discontinue the proceedings .","DATE and DATE the applicant addressed further letters to ORG requesting the court to comply with its obligation to proceed speedily .","On DATE the ORG requested that the applicant provide information as to whether the proceedings had been discontinued in the meantime .","On DATE the applicant replied that he had not received any information about the discontinuation of the proceedings and that he did not know whether a discontinuation was imminent or intended .","Therefore , on DATE the ORG decided to communicate the application to the respondent Government concerning the length of the proceedings .","Under Article PERSON of LAW , the court may terminate the proceedings by an order made outside the main hearing should a procedural impediment arise after the main proceedings have started . Thus the length of proceedings may preclude their continuation if , in exceptional circumstances , redress for the length of proceedings can not be granted in a decision on the merits .","LAW of LAW governs the discontinuation of criminal proceedings on the ground of insignificance . During the investigation proceedings ORG may discontinue the criminal proceedings if they concern an offence that does not carry a sentence of DATE imprisonment ( PERSON ) , if the defendant \u2019s guilt is of a minor nature and if there is no public interest in criminal prosecution . The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor PERSON ( LAW CARDINAL ) . If the indictment has already been preferred with the court the latter may discontinue the proceedings at any stage under the conditions set out in LAW CARDINAL with the consent of both the public prosecutor \u2019s office and the defendant ( LAW CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58078","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":1996,"docname":"CASE OF PR\u00d6TSCH v. AUSTRIA","importance":3,"conclusion":"No violation of P1-1","judges":"John Freeland;R. Pekkanen","text":["ORG The applicants are NORP citizens and own a farm at GPE , GPE .","ORG Agricultural land - consolidation proceedings ( Zusammenlegungs - verfahren ) under ORG ( ORG - see paragraph CARDINAL below ) were instituted by LOC ( PERSON - \" ORG \" ) in DATE . They concerned CARDINAL landowners and covered some CARDINAL ha . The valuation ( NORP - see paragraph CARDINAL below ) was adopted in DATE without opposition from the interested parties . On DATE ORG ordered the provisional transfer of the compensatory parcels ( ORG ) on the basis of a draft consolidation scheme ( PERSON - see paragraph CARDINAL below ) . An appeal lodged by the applicants against this order was rejected by ORG ( Landesagrarsenat - \" ORG \" ) on DATE .","ORG The consolidation scheme ( Zusammenlegungsplan - see paragraph CARDINAL below ) was published in DATE and , in its essence , confirmed the situation created by the provisional transfer order .","ORG On DATE , following an appeal from the applicants , ORG held that the parcels allotted to the applicants were of approximately the same value as the old ones . ORG pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants , according to which the yield of their compensatory parcels was below that of the ORG former property . On the contrary , it held that , on the whole , the agricultural performances under the new situation were at least as good as under the old one and dismissed the bulk of the ORG arguments . However , with reference to a plot measuring CARDINAL ha ( plot no . DATE ) , ORG held that while not illegal its configuration could be rendered more functional ( zweckm\u00e4\u00dfiger ) . It therefore quashed the part of the consolidation scheme concerning that plot and ordered that ORG re - examine the issue . The applicants appealed against this decision .","ORG On DATE ORG ( Oberster Agrarsenat - \" ORG \" ) quashed the decision of CARDINAL DATE and referred the case back to ORG following the applicants\u2019 argument that the appeal could not be partly dismissed , as the applicants\u2019 claims for compensatory parcels were an indivisible whole . It further held , inter alia , that the question of lawfulness ( GPE ) also included considerations of functionality .","ORG On DATE , in compliance with ORG decision , ORG set the consolidation scheme aside . ORG again pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants . It established that the compensatory parcels attributed to the applicants were , on the whole , more advantageous , but that they also contained some negative aspects . The advantages were ( a ) the reduction of the splitting up of the plots and the resulting increase in the average size of the plots ; ( b ) the reduction of the length of boundaries and the concomitant abolition of unproductive plots ; ( c ) a better balance between length and width of the plots ; and ( d ) better access . The negative aspects were ( e ) the diminution of the average comparative values of the parcels ( by PERCENT ) ; ( f ) the increase of average distance from the farm ( by PERCENT ) ; ( g ) the slight increase of forest border ; ( h ) the inappropriate configuration of plot no . DATE ; ( i ) the hook - like form of plot no . DATE and the circuit line pylons on this plot part of which was unproductive .","ORG The ORG concluded that the lawfulness of the compensatory measures was still in question . The file was referred to ORG for the adoption of a new scheme .","ORG In DATE ORG published a new consolidation scheme . The applicants also appealed against this scheme . Although they were now in agreement with the new land allocation , they demanded that the boundaries of CARDINAL of their plots be straightened ( Grenzbegradigung ) and that their share in the costs of communal measures and facilities - CARDINAL NORP schillings ( ORG ) - ( see paragraph CARDINAL below ) - be scrapped or reduced to a minimum .","ORG On DATE , ORG dismissed the ORG appeal . It observed that the number of plots in the applicants\u2019 possession had been reduced from CARDINAL , whilst the difference in value between the new and the old land did not even attain PERCENT , well below the statutory maximum of PERCENT . All in all , the consolidation measures had led to an increase in productivity which compensated for certain small disadvantages . The applicants lodged a complaint with ORG ) , which , in summary proceedings , refused to deal with the complaint and referred the case to ORG ( Verwaltungsgerichtshof ) which , in its turn , decided to discontinue the proceedings for procedural reasons in DATE .","ORG On DATE Mr and PERSON had applied for financial compensation in respect of the damages allegedly caused to them by the fact that they had received insufficient compensatory parcels by the provisional transfer which at that time was still in force . They submitted an expert opinion according to which they had suffered a loss of crops in the amount of approximately ORG CARDINAL,CARDINAL DATE .","ORG On DATE ORG rejected the ORG claim as being inadmissible . It observed that ORG did not provide for any compensation in respect of damage suffered in the period between the provisional transfer and the assignment of lawful compensatory parcels by the final consolidation scheme ( see paragraph CARDINAL below ) . In addition , the agricultural authorities were only competent to decide on facts concerning the implementation of the consolidation .","ORG The applicants\u2019 appeal to ORG was dismissed on DATE on the ground that there was neither a legal nor a factual basis for a claim for financial compensation in their case . In the latter respect , the ORG pointed out that it had examined and rejected the ORG private expert opinion already in its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . Although the original consolidation scheme had had to be quashed in consequence of the applicants\u2019 appeal , this did not mean that the applicants had suffered damage . In the instant case , it had been found in the earlier decision that among the total of CARDINAL ha of compensatory parcels allotted to the applicants only the configuration of CARDINAL measuring some CARDINAL ha ( no . DATE ) was objectionable . On the other hand , the applicants had also gained certain advantages . Therefore the ORG maintained the opinion already expressed in its earlier decisions that the applicants had not suffered any damage as far as yield and exploitation conditions were concerned .","The applicants challenged this decision before ORG alleging that the authorities had the duty to apply the provisions of the civil law . ORG , however , found that the administrative authorities were not competent to decide on compensation claims of a civil - law nature and dismissed the complaint on DATE .","ORG The applicants lodged a complaint with ORG invoking LAW ( article CARDINAL ) and LAW No . CARDINAL ( PCARDINAL - CARDINAL ) . ORG considered that in the light of its constant case - law the complaint did not have any prospects of success and , on CARDINAL DATE , refused to deal with it . In summary proceedings it observed , inter alia , that the facts in the applicants\u2019 case were different from those in the case of ORG and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL - see paragraph CARDINAL below ) in that the consolidation scheme had already been published and that the applicants had never complained of the unreasonable length of the proceedings .","ORG The basic rules applying to the consolidation of agricultural land , as applicable to the present case , are embodied in ORG ( Flurverfassungs - Grundsatzgesetz DATE ) , as amended in DATE . Each Land has enacted its own agricultural and land planning legislation ( PERSON ) to regulate the matters of its competence within the federal framework . In GPE , consolidation is governed by ORG DATE ( \" LAW \" ) .","ORG The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area ( section CARDINAL ( CARDINAL ) of LAW ) . It comprises communal measures and facilities and redistribution of land . The operation takes place in the following stages :","- initial proceedings ;","- ascertainment of the occupiers of the land in question and assessment of its value ;","- planning of communal measures and facilities ;","- provisional transfer of land , where appropriate ;","- adoption of the consolidation scheme . None of these stages may begin until the previous stage has been terminated with a final decision .","ORG The initial proceedings , which the authorities institute of their own motion , serve to determine the consolidation area , which , in addition to farmland and forest , may include land voluntarily offered for consolidation and land required for communal facilities ( sections CARDINAL and CARDINAL ) . The owners form an association ( ORG ) , which is a corporate body governed by public law . The institution of proceedings means that land use is restricted until the proceedings are concluded ; any change in use must be approved by the appropriate agricultural authority . This authority has exclusive jurisdiction , inter alia , over disputes concerning ownership and tenure of land in the consolidation area ( section CARDINAL ) .","ORG Once the decision to open proceedings has become final , the agricultural authority ascertains who are the occupiers of the land and assesses its value ( sections CARDINAL and DATE ) . Its decision ( PERSON ) determines the value of the land in accordance with precise statutory criteria ( LAW CARDINAL ) . Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others . Once the agricultural authority \u2019s decision has become final , however , it is binding on all of them .","Communal measures ( such as soil improvement , alterations to terrain or landscape ) and communal facilities ( private roads , bridges , ditches , drainage and irrigation ) are ordered , where they are needed , in a specific decision by the relevant authority ( Plan der gemeinsamen ORG ) , which must also settle the question of costs , these usually being shared by the landowners .","ORG Under LAW of LAW , land may be provisionally transferred before the adoption of the consolidation scheme , even if some owners object . Decisions by the competent authorities ordering provisional transfers are not appealable ; but section CARDINAL of ORG DATE ( ORG , as amended in DATE - \" the CARDINAL\/CARDINAL LAW \" ) provides that the final decision shall lie with ORG ( Landesagrarsenat ) , except in cases where an appeal lies to ORG Oberster Agrarsenat - see paragraph CARDINAL below ) . The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period . The land transferred becomes the property of the transferees subject to a condition subsequent : ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation scheme ( NORP unter aufl\u00f6sender PERSON , section CARDINAL ( CARDINAL ) ) . This provisional , conditional ownership is , as a rule , not entered in the land register since it is possible that the parties concerned may be allotted other parcels once the proceedings are completed . ORG has to authorise any entry in the land register ( sections CARDINAL et seq . ) .","ORG At the end of the proceedings , the agricultural authority adopts the consolidation scheme ( PERSON , section CARDINAL ) . Since DATE this has to be published within DATE of the final decision provisionally to transfer parcels of land ( section ORG ( CARDINAL ) of the CARDINAL\/CARDINAL LAW ) , failing which the person concerned may request the higher authority to assume jurisdiction . The adoption of the scheme is an administrative act which is supported by maps and other technical data , and whose main function is to determine the compensation due to the landowners who are parties to the proceedings . LAW includes the following regulations on this matter :","- when compensatory parcels are being determined , regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme ;","- any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or , if that is not possible , to be reallocated his previous parcels , including building land ( section DATE ) ;","- changes in the value of land which come about in the course of the proceedings , including those occurring after the provisional transfer , must be taken into account in the final allocation under the consolidation scheme ( section CARDINAL ( CARDINAL ) ) ;","- claims for financial compensation have to be submitted within DATE from the date on which the consolidation scheme becomes final ( section CARDINAL ( CARDINAL ) ) .","ORG The legislation of the ORG did not at the material time provide for any financial compensation for damage suffered , before a final consolidation scheme came into force , by landowners who had successfully challenged the lawfulness of compensation received through transfer of land .","ORG Following the judgments of ORG DATE in the cases of ORG and PERSON cited above and PERSON GPE ( Series A no . CARDINAL ) , NORP legislation has been amended to the effect , inter alia , that , once it is found that compensatory parcels were not lawfully allocated , the concerned parties may apply for financial compensation ( section CARDINAL ( CARDINAL ) to ( CARDINAL ) of ORG ) . The new legislation came into force on DATE .","ORG The first - instance authority in GPE is ORG , which is a purely administrative body . The higher authorities are GPE , established at ORG ( ORG der Landesregierung ) , and ORG , set up within ORG f\u00fcr Land- PERSON ) . These boards include judges and constitute a kind of \" specialised administrative tribunal \" .","ORG Decisions of ORG can be challenged by way of appeal to ORG , whose decision is final except where it varies the decision in question and where the dispute concerns CARDINAL of the issues listed in section CARDINAL ( CARDINAL ) of the CARDINAL\/CARDINAL LAW , such as the lawfulness of the compensation in the event of land consolidation ; in such cases an appeal lies to ORG . The executive can neither set aside nor vary the decisions of these CARDINAL bodies , but they can be challenged in ORG ( section CARDINAL of the CARDINAL\/CARDINAL LAW and LAW para . CARDINAL of LAW ) .","ORG Procedure before the land - reform boards is governed by LAW , LAW which stipulates that ORG - except for one section of no relevance in the instant case - shall apply , subject to the variations and additional provisions made in the CARDINAL\/CARDINAL LAW . The boards are responsible for the conduct of the proceedings ( section CARDINAL of ORG ) . By section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the CARDINAL\/CARDINAL LAW , the boards take their decisions after a private hearing . Boards must determine cases without undue delay ( ohne unn\u00f6tigen PERSON ) and in any event not later than six months after an application has been made to them ( section CARDINAL ( CARDINAL ) ) . If the board \u2019s decision is not notified to the parties concerned within that time , they may apply to the higher authority , which will thereupon acquire jurisdiction to determine the merits ( section CARDINAL ( CARDINAL ) ) . If the latter authority fails to give a decision within the statutory time - limit , jurisdiction passes - on an application by the interested party - to ORG ( Article CARDINAL of LAW and section CARDINAL of LAW ) .","ORG The decisions of land - reform boards can be challenged in ORG which will determine , inter alia , whether there has been any infringement of the applicant \u2019s rights under LAW ( Article CARDINAL of LAW ) .","ORG As an exception to the general rule laid down in LAW para . CARDINAL of LAW , section CARDINAL of the CARDINAL\/CARDINAL LAW provides for an appeal to ORG against the decisions of land - reform boards . Application may be made to ORG before or after an application to ORG . The latter will , if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests , refer the case to ORG ( Article CARDINAL para . CARDINAL of LAW ) .","Under LAW , the ORG determines applications alleging the unlawfulness of an administrative act or a breach by a competent authority of its duty to make a decision . It also hears appeals against decisions of boards whose members include judges - such as the land - reform boards ( see paragraph CARDINAL above ) - where such jurisdiction is conferred on it by statute ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78031","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF KLIMENTYEV v. RUSSIA","importance":3,"conclusion":"No violation of Art. 6","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in the city of GPE Novgorod .","On DATE criminal proceedings were brought against the applicant on suspicion of his involvement in a number of economic crimes .","From DATE to DATE , on DATE and on CARDINAL and DATE the applicant and his defence team studied the case - file .","On DATE ORG ( \u201c the ORG \u201d , PERSON \u043a\u043e\u043b\u043b\u0435\u0433\u0438\u044f \u043f\u043e \u0443\u0433\u043e\u043b\u043e\u0432\u043d\u044b\u043c \u0434\u0435\u043b\u0430\u043c \u041d\u0438\u0436\u0435\u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430 ) convicted the applicant of some charges and acquitted him of the rest , sentencing him to one and a half year of imprisonment and the forfeiture of part of his property .","The judgment of DATE was quashed on appeal by ORG of GPE ( \u201c the ORG \u201d , ORG \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 ORG ) on DATE . The case was remitted for fresh examination at first instance .","DATE and DATE the applicant and his counsel were again given an opportunity to study the case - file .","On DATE the hearings recommenced at first instance .","The applicant 's civil defender PERSON and his counsel Mr PERSON failed to attend the hearing of DATE .","Mr Chumak excused himself by reference to his previous engagements in a different set of proceedings . It appears that Mr PERSON was undergoing medical treatment in a hospital .","In view of their absence , the court adjourned the hearing until DATE . On CARDINAL DATE PERSON and Mr Kozlov were again absent and , despite the applicant 's proposal to continue the examination of the case in their absence , the court again adjourned the hearing , this time until DATE .","On DATE both the civil defender and counsel PERSON attended the hearing .","According to the transcript , at the hearing the applicant requested the court to admit PERSON as a \u201c specialist in international law \u201d . The court considered the request unfounded and irrelevant as there was no need for advice on international law at that stage of proceedings .","According to the applicant , he requested to admit PERSON as a replacement counsel for Mr PERSON who was present and unfit effectively to participate in the hearing due to his medical condition .","From the hearing transcript it does not transpire that either the applicant or his defence counsel objected to the decision rejecting the applicant 's request with reference to Mr PERSON 's alleged inability to participate in the further examination of the case on medical grounds .","During the trial ORG heard CARDINAL witnesses in total , both for the prosecution and the defence .","The court refused the applicant 's requests to call certain witnesses , including the former Regional Governor , ORG and other officials , and admitted and considered CARDINAL witness statements taken at the pre - trial stage of proceedings and during the first round of proceedings at first instance without hearing the respective witnesses in person .","CARDINAL of these witnesses were the NORP nationals NORP and PERSON who had both been questioned by ORG ( \u201c the NORP authority \u201d , ORG ) and the NORP investigators in GPE on DATE .","NORP The trial court attempted to secure the presence of these witnesses in person by making an official request to that effect to the NORP authorities .","By letters of CARDINAL and DATE NORP and PERSON refused to appear and give evidence to the court , and on an unspecified date the NORP authorities refused to secure their presence at the trial by force .","Consequently , the witnesses NORP and PERSON did not attend the trial and the applicant could not cross - examine them .","The third witness was a NORP national PERSON who gave evidence at the pre - trial stage of proceedings and during the first round of proceedings in DATE . The applicant and his counsel were able to cross - examine him during the first round of proceedings .","The trial court unsuccessfully tried to secure his presence but PERSON was in GPE and could not be found .","The fourth and fifth witnesses , the NORP nationals M. and A. , were also questioned during the pre - trial investigation and during the trial in DATE . The applicant and the defence team were able to cross - examine them during the proceedings in DATE .","From the case - file and the documents presented by the Government it transpires that during the hearings the court summoned these CARDINAL witnesses and the authorities repeatedly undertook various measures , including questioning the close relatives and the witnesses ' connections , with a view to securing their presence at the trial . Apparently these measures proved futile as the witnesses ' whereabouts could not be established .","It appears that the prosecution case contained several documents in LANGUAGE and NORP .","All documents admitted by the court as evidence were translated either by certified translators or by the staff of the NORP embassy . Most of the translations were attached to the case - file prior to the beginning of the first instance hearings , whilst some of them on DATE ( numbering CARDINAL pages ) and CARDINAL DATE ( CARDINAL pages ) , were submitted already after the beginning of the trial .","According to the Government , on CARDINAL occasion the defence requested translation of a document which had not been used by the prosecution or the court . The request was granted and the necessary translation was made .","The court also admitted a number of expert reports ( technical , medical , graphologist and others ) which had been ordered by the prosecution during the pre - trial stage of proceedings .","It follows from the case - file that the applicant was officially notified of most of the prosecution decisions to carry out expert examinations ( counting CARDINAL ) within DATE from DATE on which such decisions had been taken .","The decisions of CARDINAL DATE , DATE and DATE to carry out expert examinations were served on the applicant on DATE . The decision to carry out expert examination dated DATE was served on him on DATE .","At the time when these decisions were served , both the applicant and his counsel were officially informed about the procedural rights of the accused , including the right to challenge an expert , seek an appointment of a particular person as an expert , adduce further questions , be present during the expert examination in person and make any comments and be informed of expert conclusions . The accused also had an opportunity to make related requests and motions in writing .","In respect of the decisions of DATE and DATE to carry out technical examinations , the applicant requested to provide him with copies of some documents . The copies were provided to him on DATE . As regards the decision of CARDINAL DATE to carry out technical examinations , the applicant stated that it \u201c might have been more objective \u201d to carry out that examinations in GPE or GPE .","The copies of the notification reports state that the applicant and his counsel did not make any additional requests and motions .","On DATE ORG found the applicant guilty on charges of misappropriation , embezzlement , bribery and the attempt not to return money from abroad .","According to the judgment , the applicant and a co - accused PERSON , the director of a shipyard \u201c PERSON \u201d , had tampered with documents with a view to embezzling the shipyard 's property . The director , acting on behalf of the shipyard , was found to have arranged large - scale money transfers under fraudulent contracts with the companies owned by the applicant , whereas the applicant was found to have bribed the director by opening bank accounts in the name of PERSON in GPE and transferring the stolen money there . Among other things , the applicant was also convicted of having extorted money from a marketplace owned and run by the companies \u201c GPE \u201d and \u201c NL TOP \u201d , and from a casino owned and run by a company \u201c Slot \u201d .","In total , the court sentenced the applicant to DATE imprisonment and the confiscation of part of his property . The court also upheld civil claims for damages by the shipyard \u201c FAC and CARDINAL other companies , \u201c GPE \u201d , \u201c NL TOP \u201d and \u201c Slot \u201d .","The applicant 's conviction was based on various pieces of evidence , i.e. numerous documentary items , including accounting , financial and contractual papers reflecting the operation of sham companies owned and run by the applicant and PERSON as well as oral and written evidence given by CARDINAL witnesses and various expert examinations .","A copy of the judgment of CARDINAL DATE was served on the applicant on DATE .","Later it was discovered that the copy contained errors and misprints .","On DATE ORG corrected a number of clerical and technical mistakes in the judgment and ordered that the applicant be furnished with the amended version .","The applicant claims that he did not receive the amended version .","The records in the case - file indicate that the amended copy of the judgment was served on the applicant against his signature on DATE .","The Government submit that the whole trial was taken down in shorthand and taped and that the respective records were all available to the interested parties , including the applicant and his counsel .","On DATE the applicant requested to study records , audiotape recordings and shorthand records .","The applicant was provided with this opportunity on DATE , DATE and DATE .","On DATE a specialist of ORG certified that the applicant had been given access to the trial record , though he had refused to study audio records and shorthand records .","On DATE a judge of ORG decided that the defence counsel should be given access to the records DATE and DATE .","The deadline for filing objections was set on DATE accordingly .","It does not appear from the case - file that the applicant ever challenged the accuracy of the trial records .","On DATE ORG made a number of separate rulings ( \u0447\u0430\u0441\u0442\u043d\u044b\u0435 \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u044f ) in the case .","In CARDINAL of these rulings the court noted that there had been breaches of the relevant rules of criminal procedure during the investigation and that these breaches had been remedied during the trial .","NORP In particular , the court established that the defendants had been informed about the commissioning of expert reports in the case only after the respective examinations were over .","The court considered that this failure did not invalidate the conclusions of the experts ' reports and that the applicant had failed to contest the results of the reports during the investigation or during the trial or request additional or repeated examinations to be carried out .","The court also noted that a number of documents in the case - file were in foreign languages , but considered that this did not violate the applicant 's defence rights because the documents were similar to or copies of other documents in NORP and that in any event all relevant documents had been translated into LANGUAGE during the trial .","The court further noted that certain statements of witnesses had been admitted as evidence , even though they gave no indication as to the time or place of questioning . To verify the relevant points , these witnesses as well as other witnesses had been questioned in the courtroom on the circumstances of the questioning .","The defence appealed against the judgment of CARDINAL DATE to ORG .","In their appeal , inter alia , the applicant 's counsel contested the admissibility of certain evidence admitted by the court such as expert reports , documents in foreign languages , certain procedural documents , statements of witnesses made during the pre - trial investigation and at the first round of proceedings at first instance , statements of witnesses taken by the NORP police , and other evidence obtained in GPE , claiming that were allegedly in breach of the domestic procedural rules .","Furthermore , it was stated that the applicant 's defence had not had due access to the trial records and the quality of the defence had been impaired by ORG refusal to admit PERSON as a replacement for a lawyer who was sick .","On DATE PERSON joined the defence team . In DATE and on DATE she referred to various difficulties in organising the defence and made several requests to ORG to adjourn the hearing .","She also complained that the applicant had been served neither with the final copy of the judgment , nor with the rulings of CARDINAL DATE and that the defence had had no access to the verbatim record and certain volumes of the case - file .","On DATE ORG granted one of her requests to adjourn the hearing . The hearing initially scheduled for DATE was postponed .","Thereafter PERSON failed to appear at the hearing on DATE .","On DATE PERSON requested to postpone a further hearing claiming that the defence had not been properly notified of the judgment and separate rulings .","NORP In response to her request for adjournment , ORG ruled that both the defence in general and PERSON in particular had had sufficient time to examine the trial records , study the first instance judgment and prepare for the case MONEY and DATE and turned down the request as unfounded .","The appeal hearing took place on DATE .","On DATE , in the presence of the applicant 's defenders , PERSON and PERSON , and the prosecution , ORG examined the appeals and , with minor alterations , confirmed the judgment of CARDINAL DATE .","The court concluded that there had been no significant breaches of national procedural law or international standards during the trial .","As to the complaints about the handling and assessment of the evidence , the court found that the lower court had properly admitted and considered the evidence in the case and that the conclusions of the lower court had been reasonable and substantiated . It also noted that the defence had been furnished with NORP translations of foreign documents during the hearing .","The court further considered that the applicant had been adequately represented throughout the pre - trial investigation and the trial , and that at no time during the proceedings had he been deprived of professional legal advice .","DATE . In respect of the events of CARDINAL DATE , the court noted that the applicant 's lawyer had never applied for an adjournment of the hearing for health reasons and ORG refusal to admit PERSON as a further lawyer did not constitute a violation of the applicant 's right to defence .","According to Sections CARDINAL and CARDINAL of the Code of Criminal Procedure of the RSFSR ( the NORP Soviet GPE ) of DATE , as in force at the relevant time , in cases requiring special knowledge of science , technology , art or particular skill , an investigative authority or a court may appoint an expert to carry out an expert examination . The conclusions of an expert are not binding on an investigating authority or a court but any disagreement with them must be motivated . By Sections CARDINAL and CARDINAL of the Code incomplete , unclear , unjustified or dubious expert conclusions may trigger a decision by a court or an investigator ordering additional or repeated expert examinations . In such cases the court takes the decision having heard the opinions of the participants of the proceedings ( Section CARDINAL of the Code ) .","Section CARDINAL of the Code states that an accused and his counsel have the right to challenge an expert , seek an appointment of a particular person as an expert , adduce further questions , be present during the expert examination in person and make any comments and be informed of expert conclusions . In case the respective request was granted , an investigation alters its decision to carry out the examination accordingly .","By Section CARDINAL of the Code , expert conclusions should be presented to the applicant who has the right to respond or object to these conclusions as well as the right to request the authority to put additional questions to the expert or carry out an additional or a repeated expert examination .","Having decided that the collected evidence is sufficient to prepare the bill of indictment , an investigator informs the accused that the investigation is terminated and that the accused has the right to study the entirety of the case personally and with the assistance of his defence counsel and to request the investigator to carry out an additional investigation ( Sections CARDINAL , CARDINAL and CARDINAL of the Code ) . The investigator should draw up a report reflecting the progress of the defence in studying the case . The investigator can not limit the time for study , except in cases where the accused and his counsel manifestly protract the process .","According to LAW , criminal proceedings are conducted in LANGUAGE . The contents of documents relating to court proceedings and investigation are made available to the accused in a language that he understands .","A translator appointed by a court or an investigator is under an obligation to make correct translations and may be held criminally liable for incorrect translations under LAW of the LAW and LAW of GPE .","By Section CARDINAL of the Code of Criminal Procedure , participants in the proceedings , including the accused and his defendants , have the right to make requests to summon new witnesses , experts and specialists or retrieve items of evidence and documents etc . A court , having heard other participants in the proceedings , should examine each such request and either grant it or give a motivated decision refusing it .","Section CARDINAL of the LAW provides that documents adduced to the case or presented by a party during a hearing and containing description of relevant facts should be read out .","By LAW of the LAW , a copy of the first instance judgment should be served on an accused or an acquitted within DATE from its delivery .","By Section CARDINAL of the Code , a defender takes part in examination of the body of evidence , gives his opinion on various issues arising during the court proceedings , including the substance of accusations , any mitigating circumstances as well as the penalty and civil liability for the commission of a crime .","By LAW of the Code , advocates ( counsel ) and representatives of professional or other social unions may act as defenders . According to LAW , representatives of social organisations and staff may act as \u201c civil defenders \u201d ( \u043e\u0431\u0449\u0435\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u0435 \u0437\u0430\u0449\u0438\u0442\u043d\u0438\u043a\u0438 ) . As such they have the right to present evidence , take part in examination of evidence , make motions and challenges , participate in arguments as well as give their opinion on any mitigating or acquitting circumstances and the penalty .","Section CARDINAL of the Code imposes an obligation on a witness to attend and to give truthful evidence to the best of his knowledge as well as to respond to questions . In case of failure to respect this obligation the witness may be brought before the authority by force and punished by a fine of up to a third of a DATE minimum wage and\/or be held liable of a criminal offence .","According to Sections CARDINAL and CARDINAL of the Code , a trial court must carry out a first - hand examination of all evidence in the case , including , among other things , hearing of witnesses , the participants in criminal proceedings ( a prosecutor , an accused , a defender , a victim , a civil claimant and a civil respondent and their representatives ) having equal procedural rights concerning submission and examination of evidence as well as making of various requests .","Sections CARDINAL and CARDINAL of the Code state that in case of a witness 's objective inability to attend a court , having heard the participants of the proceedings , may decide to read out the statements given by the witness at earlier stages of the proceedings ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93144","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2009,"docname":"KNAPIC v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the Vara\u017edin State Attorney \u2019s Office ( Op\u0107insko dr\u017eavno odvjetni\u0161tvo PERSON ) indicted the applicant before ORG ( PERSON ) for threatening behaviour . The applicant chose to defend himself in person and had no legal representation in the proceedings before the trial court . At the first hearing , held on DATE , the applicant and CARDINAL witness gave evidence .","At the beginning of a hearing scheduled for DATE at TIME , the applicant \u2019s wife approached the presiding judge asking on the applicant \u2019s behalf for an adjournment of the hearing . She presented medical evidence showing that on DATE the applicant had been injured and could not walk . The judge , however , continued with the hearing at which CARDINAL witnesses , all of whom were called on behalf of the prosecution , gave evidence . The prosecution also gave their closing arguments and the trial was concluded . The applicant was found guilty as charged and sentenced to CARDINAL months\u2019 imprisonment .","On DATE the applicant , now legally represented , lodged an appeal whereby he argued that the impugned judgment had not been adequately reasoned , that the reasons given by the trial court had been contradictory and that the facts had been wrongly established . The appeal was dismissed and the first - instance judgment upheld by ORG ( PERSON ) on DATE .","On DATE the applicant lodged a request for an extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomo\u0107ne presude ) . It was dismissed by ORG ( Vrhovni sud Repbulike Hrvatske ) on DATE on the ground that the applicant had failed to specify any ground for lodging his request under the relevant provisions of LAW . Instead , he had challenged only the findings of the lower courts as to the facts of the case , which was not a ground for a request for extraordinary review of a final judgment .","On DATE the applicant asked the Vara\u017edin State Attorney \u2019s Office to lodge a request for the protection of legality with ORG . This was denied on DATE .","The relevant part of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL\/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provides as follows :","\u201c ( CARDINAL ) Where a law has been infringed , the ORG Attorney of GPE may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions .","( CARDINAL ) The ORG Attorney of GPE shall lodge a request for the protection of legality against a court decision adopted in proceedings which violated fundamental human rights and freedoms guaranteed under LAW , laws or international law .","... \u201d","Article CARDINAL of ORG ( PERSON o krivi\u010dnom postupku , published in ORG nos . CARDINAL and CARDINAL ) reads :","\u201c Where a law has been infringed , the competent ORG Attorney may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61818","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2004,"docname":"CASE OF TAMMINEN v. FINLAND","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","NORP In DATE the applicant founded a company called \u201c ORG \u201d ( hereinafter \u201c FOFE \u201d ) .","NORP FOFE went into liquidation on CARDINAL DATE and was finally dissolved on DATE .","In the liquidation proceedings the applicant filed his claim against the estate , claiming MONEY ( ORG ; approximately ORG CARDINAL ) , plus interest , in respect of unpaid salaries and other claims related to his employment contract with ORG . As the estate contested most of the applicant \u2019s claims , the parties instituted civil proceedings against each other before ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tt ) of GPE . The estate of ORG argued that the applicant had not been an employee of the company but had rather held an executive position as he had owned all its shares , and insisted that the applicant be ordered to reimburse to the estate certain assets he had allegedly transferred from the company to himself before the company was dissolved . The claims made by the parties against each other were jointly considered by ORG .","It appears that CARDINAL of the main issues in the civil proceedings was whether the applicant had been in an executive position in the company or not .","During a preparatory hearing at ORG , on DATE , the representatives of ORG named , among others , PERSON , President of ORG of ORG , Mr PERSON and Mr GPE , both former members of ORG and PERSON also its former Executive Director , to give evidence on their behalf . The applicant named PERSON , former Managing Director of ORG , the above - mentioned Mr PERSON , and Mr GPE , to be heard as his witnesses concerning his position in the company .","In his written observations of CARDINAL DATE to ORG in respect of the estate \u2019s claims the applicant stated , inter alia , as follows :","\u201c The estate of ORG has called PERSON and PERSON , both of whom were members of its Board of Directors and the latter also its Executive Director , to give evidence . We will also hear them in respect of exactly the same issues on which we will examine Mr J.S.","With the support of the above - mentioned witnesses we will prove that [ the applicant ] has not had any close connections with ORG since he resigned from its ORG on DATE , and that he has had no decisive position in the company . \u201d","At another preparatory hearing , on DATE , ORG repeated that they would call ORG as a witness . The applicant named the witnesses he had named on DATE and further named PERSON who would give evidence about the applicant \u2019s tasks . ORG decided on DATE that ORG would be summoned by the court ex officio .","At yet another preparatory hearing in the case , on TIME DATE , ORG repeated their intention to hear ORG as their witness . According to ORG TIME from that last preparatory hearing the applicant had named CARDINAL witnesses , namely Mr GPE , Mr PERSON , Mr ORG and Mr NORP Witness Mr GPE was mentioned in the list of the adverse party \u2019s witnesses only .","Thereafter ORG decided that the preparatory stage of the proceedings had ended and that the main hearing would be held that DATE at QUANTITY .","A.P. failed to appear before ORG on DATE , having informed the court in advance that he would be in GPE at the time of the hearing and would not be available until DATE . The estate of ORG withdrew their request to call ORG as a witness . Thereupon the applicant appointed PERSON as a witness on his behalf and requested that the main hearing be adjourned until DATE . ORG rejected the applicant \u2019s request , holding , in the light of the other evidence , that the hearing of ORG was not likely to be of assistance for discovering the truth . ORG decision was repeated in its judgment delivered on DATE , in which it was found that the applicant had not been an employee but rather had occupied a leading position in ORG . Most of the applicant \u2019s claims were rejected , with the exception of LAW ( approximately EUR CARDINAL,CARDINAL ) for unpaid salaries . The applicant was , inter alia , ordered to refund ORG ( approximately ORG CARDINAL ) to ORG in compensation for the assets he had transferred from the company . He was also ordered to pay ORG MONEY ( approximately ORG CARDINAL ) in compensation for ORG \u2019s legal fees and expenses .","On DATE the applicant appealed to ORG ( hovioikeus , hovr\u00e4tt ) , requesting an oral hearing and calling PERSON as his witness . He argued that the hearing of ORG as a former Executive Director of ORG would be necessary for ascertaining the truth in respect of the applicant \u2019s status in the company . He noted that ORG had informed ORG of his journey to GPE at the time of the hearing but had simultaneously given the dates when he would be available . ORG had been summoned by phone to appear before ORG DATE before the hearing of DATE . It had been impossible for him to cancel his business meeting in GPE at such short notice . The applicant alleged that his request to adjourn the hearing in order to call ORG as a witness had been inconvenient for the presiding judge of ORG in respect of the timetable for the drafting of the decision . The hearing of ORG was even more important at this stage as ORG had not found the statement of PERSON to be credible in every aspect . If the court had heard ORG , who would have confirmed that the applicant had not been in any decisive position in FOFE , it would have been difficult for ORG to decide as it did .","ORG upheld ORG decision on DATE , rejecting the applicant \u2019s request to hold an oral hearing . ORG stated as follows :","\u201c ... [ The applicant ] has called CARDINAL witnesses before ORG . In so far as he has called PERSON A.P. , ORG notes that ORG had been appointed as a witness in FAC only during the main hearing . According to LAW , LAW , of LAW a party must not , in a case amenable to settlement , adduce a circumstance or evidence that he has not adduced in the preparation of the case , unless he establishes a probability that he had a valid reason for not doing so . [ The applicant ] has not established such a valid reason for appointing ORG as a witness only at the main hearing . Thus , the appointment of ORG as a witness must be regarded as if it had only taken place during the ORG proceedings . In so far as new witnesses have been appointed and new evidence appearing in the annexes to the applicant \u2019s letter of appeal has been invoked , [ the applicant ] has not established a probability that he was unable to adduce the circumstance or evidence in ORG or that he had a justifiable reason for not doing so . ... No such reason has been established in respect of the written submissions and their annexes submitted by the parties to ORG after the relevant time - limit had elapsed , excluding the parts concerning the proposed stay of execution . In accordance with LAW , LAW , subsection CARDINAL , and LAW , subsection CARDINAL , as well as LAW , Section CARDINAL , of LAW , ORG leaves the submissions and their annexes unexamined , excluding the request concerning stay of execution , and rejects [ the applicant \u2019s ] request to hold an oral hearing . Thus also the request to return the case to ORG is rejected as being unnecessary . \u201d","NORP The applicant applied to ORG ( korkein oikeus , h\u00f6gsta domstolen ) for leave to appeal , noting that ORG had refused to call ORG as a witness because it had found that it was unnecessary in the light of the other evidence invoked . ORG had , thus , found that the applicant had not been prevented from calling him had the hearing of his evidence been necessary . ORG had , however , found that the applicant had appointed PERSON as his witness only at a stage of the proceedings when he was already precluded from doing so , i.e. at the main hearing . The applicant had , however , appointed PERSON as his witness already in a preparatory meeting on DATE and repeated the request on CARDINAL DATE in his written observations to ORG . He had also had a relevant reason to request that ORG be heard as the estate of FOFE DATE which had originally called ORG as a witness \u2013 had withdrawn their request only at the main hearing . ORG had been the Executive Director of ORG and , as such , was in the best position to give a statement of the applicant \u2019s position in the company for the period from DATE until the insolvency proceedings . Therefore the applicant found it very important that ORG would hear ORG as a witness or , alternatively , return the case to a lower court in order to hear the witness .","On DATE ORG refused the applicant leave to appeal .","According to LAW , LAW ( CARDINAL\/CARDINAL ) of LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalk ) , the evidence that is going to be presented and what is intended to be proved with each piece of evidence , must be determined during the preparation of the hearing . This means that the parties must , during the preparatory hearings , name all those persons whom they wish to call as witnesses in the main hearing .","According to LAW , LAW , a party must not in the main hearing adduce a circumstance or evidence that he has not adduced in the preparation , unless he establishes a probability that he had a valid reason for not doing so . Should the party show a valid reason , however , he may adduce the new circumstance or piece of evidence in the main hearing irrespective of the provisions of LAW , LAW .","The purpose of the provisions of LAW , LAW is to ensure compliance with the fair trial requirements . It is a requirement of a fair trial that the adverse party is informed beforehand of each piece of evidence ( including witnesses ) to be presented in the main hearing .","There are separate provisions concerning the submission of new evidence before a Court of Appeal in LAW , LAW of LAW . Before the entry into force of the LAW amending LAW ( PERSON ) the said provisions were contained in LAW , LAW , subsection CARDINAL ( CARDINAL\/CARDINAL ) . According to these provisions , in a civil case , the appellant shall not in ORG refer to other circumstances or evidence than those presented in ORG , unless he establishes a probability that he was not able to refer to the circumstance or evidence in the district court or that he had a justifiable reason for not doing so .","Even if a party to the proceedings , under LAW , LAW of LAW , has named his witnesses in the preparatory hearing , or had a valid reason for not invoking a certain circumstance or piece of evidence before the main hearing or the court of appeal hearing , the court may refuse to examine such a circumstance or piece of evidence as it considers clearly unnecessary . According to LAW , LAW ( DATE ) of the Code of Judicial Procedure , if a piece of evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proven , or if the fact can be proven in another manner with considerably less inconvenience or cost , the court shall not admit this piece of evidence .","Chapter CARDINAL , LAW ( CARDINAL\/CARDINAL ) of LAW provides that the court shall conduct the preparation in such a manner that the case can be dealt with in a continuous main hearing . The aim of this provision is to avoid adjournments of the main hearing .","LAW , subsection PERCENT CARDINAL\/CARDINAL ) provides that the court shall see to the calling of witnesses to court , unless this has been entrusted to a party in accordance with LAW , LAW , according to which , on the request of a party , the court may in a civil case entrust the service of a notice to the party , if it deems there to be justified grounds for this ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-114329","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2012,"docname":"BEGGS v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Lord Justice Schiemann;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP and NORP national who was born in DATE and is currently serving a sentence of life imprisonment in FAC . He was represented before the ORG by PERSON , a lawyer practising in GPE .","NORP In TIME of DATE , PERSON PERSON , then aged DATE , disappeared following a DATE function organised by his employers . There was evidence that PERSON PERSON had consumed a great deal of alcohol and , after leaving the function , had had an altercation with a friend , PERSON , before the CARDINAL youths made up and Mr PERSON left to go to a nightclub . The last sighting of him was at the entrance to the nightclub at around QUANTITY a.m.","On DATE members of the Central Scotland Police Underwater Search Unit discovered severed parts of a human body while on a training exercise in GPE . Further body parts were discovered on CARDINAL , DATE and DATE . On DATE a human head was discovered at GPE in GPE . DATE , on DATE , a human torso was recovered from GPE . DNA analysis revealed the body parts to be those of Mr PERSON .","Post - mortem examination revealed certain pre - mortem injuries , including bruising to , and fractures of , the underlying bones of the face ; areas of extensive bruising around the anus and in the rectal mucosa ; linear marks on the wrists and ankles consistent with these having been caused by the application of handcuffs ; and a puncture mark on CARDINAL of the arms , consistent with that having been inflicted by a needle . Pathologists were unable on the basis of the autopsy findings to determine any definite cause of death .","In the meantime , on DATE the Procurator Fiscal in GPE sought and obtained a Sheriff warrant to search the home of the applicant .","On DATE the police conducted a search of the applicant \u2019s home while he was absent and discovered quantities of Mr ORG \u2019s blood , as well as other significant items . On TIME of CARDINAL DATE , upon hearing of the search of his home via the media , the applicant left GPE .","On DATE a warrant for the arrest of the applicant was issued by ORG in the following terms :","\u201c ( CARDINAL ) On CARDINAL or DATE in GPE the precise locus being to the petitioner presently unknown [ the applicant ] did abduct PERSON PERSON ... apply handcuffs or similar implements to his wrists , bind his legs with a ligature and forcibly confine him against his will .","( CARDINAL ) On CARDINAL or DATE in GPE or elsewhere in GPE the precise locus being to the petitioner presently unknown did assault said PERSON PERSON , dismember his limbs and cut his head from his body with a saw or similar instrument and by those means or by some other means to the petitioner presently unknown did murder him . \u201d","On DATE the applicant , having sought legal advice in the GPE , voluntarily surrendered to ORG ) . On DATE , the applicant appeared before ORG ( Rechter Commisaris ) in GPE and was remanded in custody pending receipt of a formal extradition request from GPE authorities .","On DATE a further warrant for the arrest of the applicant was issued by ORG which narrated the terms of the previous warrant and continued :","\u201c ... being conscious of his guilt in respect thereof , did on CARDINAL or DATE , remove the dismembered body of said PERSON from CARDINAL Doon Place , GPE , GPE , and did attempt to conceal parts of said body in the waters of GPE , GPE , and , in particular , did attempt to conceal there the torso , CARDINAL severed arms , a severed leg and CARDINAL sections of leg and further , DATE , both dates inclusive , at GPE , GPE , did attempt to dissociate the severed head of said PERSON from the other dismembered parts of his body , and did attempt to conceal it in the sea there , and all of this he did with intent to conceal the crimes of abduction and murder narrated above , to prevent the authorities from recovering evidence in connection with said crimes , and to avoid detention , arrest and prosecution in respect of said crimes , all with intent to pervert the course of justice and did attempt to pervert the course of justice . \u201d","On DATE an application for extradition was sent to ORG and ORG . On DATE a ORG was sent to ORG in GPE by ORG in GPE . On DATE ORG was sent to the competent legal authorities in the GPE .","The applicant challenged his extradition on the grounds that he would not receive a fair trial in GPE as a result of the extensive media coverage of the crime and that there was a risk to his well - being as a result of a death threat made against him following the media coverage .","On DATE the extradition request was heard by ORG of Amsterdam ( Arrondissementsrectbank ) . On DATE the court approved the extradition of the applicant in respect of the matters contained in the first petition of DATE but declined to authorise extradition in respect of the second petition on the ground that the facts set out in it and averred to constitute the crime of attempting to pervert the course of justice would not be a crime under NORP law and accordingly did not meet the test of double criminality .","On DATE the applicant appealed to ORG of the GPE ( PERSON ) . A procedural hearing was held on DATE . The Advocate - General delivered his opinion on DATE advising the court to dismiss the applicant \u2019s appeal .","On DATE ORG upheld the decision of ORG to extradite the applicant in respect of the matters contained in the first petition and refused the appeal .","On DATE the NORP Minister of ORG agreed to extradite the applicant to GPE on charges of murder and abduction . On DATE the applicant lodged an application in ORG of The Hague for review of the Minister \u2019s decision . The hearing took place on DATE and the court rejected the applicant \u2019s motion by judgment of DATE .","The applicant was extradited to GPE on DATE .","On DATE the applicant appeared from custody on petition before ORG and was remanded in custody for DATE pending inquiries .","On DATE the applicant appeared before ORG and made no plea or declaration . He was fully committed for trial and remanded in custody for DATE .","On DATE the Lord Advocate indicted the applicant for trial on charges of murder in the High Court sitting in GPE on DATE . The indictment containing the following single charge :","\u201c ... on CARDINAL or DATE at CARDINAL Doon Place , GPE , GPE you did assault PERSON PERSON ... , place handcuffs on his arms and legs , struggle with him , punch him on the face , restrain him , puncture his arm with a needle or similar instrument and penetrate his hinder parts with your private member , all to his severe injury and you did murder him and further you did dismember his body and dispose of the dismembered parts in GPE , GPE , and in the sea at ORG , ORG , GPE . \u201d","The applicant subsequently lodged TIME . The first sought a finding that the extent of the pre - trial media coverage was such that it was impossible for him to receive a fair trial . The second challenged the validity of the extradition procedure and sought to have the averments of dismemberment and disposal of the body removed from the charge on the indictment .","On DATE , the applicant \u2019s legal advisers argued a plea in bar of trial on the grounds of TIME lodged . Both TIME were refused by Lord PERSON sitting in ORG . However , he granted leave to appeal and the applicant duly lodged a note of appeal .","NORP In his written opinion on the disposal of the minutes , Lord PERSON discussed the extent of the media publicity in the applicant \u2019s case . He noted that a very considerable degree of attention had been devoted in the media to the discovery of the body parts , particularly by newspapers in widespread circulation in GPE . The applicant had been identified as a prime suspect well before a warrant had been sought for his arrest . His sexual character had been described in prejudicial terms . Analogous previous convictions had been disclosed , as was the fact that the applicant had been cleared on appeal of a previous murder on what was described as a technicality . Photographs of the applicant , including a photograph in which he appeared in handcuffs , were published . As to the nature and extent of the coverage , Lord PERSON noted :","\u201c CARDINAL . ... It can not be in doubt that the coverage of the story in certain newspapers in the period immediately after the disappearance of PERSON was extremely prejudicial to , and damning of , the [ applicant ] . In respect of some of the stories , it could hardly have been more so . However , the character and extent of this coverage did appear to diminish significantly after the initial period of DATE , although it by no means disappeared . This may have had something to do with the provisions of ORG DATE , which only comes into effect once criminal proceedings have started . An order made under that Act was pronounced in respect of the present indictment on DATE , restricting the reporting of details of the case , and that order appears to have been observed ... \u201d","The judge turned to consider the case - law of this ORG and of the domestic courts . He accepted that adverse media or press publicity generally carried the serious risk of compromising or prejudicing the fairness of the hearing . In circumstances where the nature and extent of pre - trial publicity were such that it would be impossible for the trial judge to secure a fair hearing by means of appropriate directions to the jury , the court would require the proceedings against the accused to be discharged . He continued :","\u201c CARDINAL . In the present case I have no doubt that the test which the [ applicant ] has to satisfy has not been met . While there must be a potential risk that a jury will have been prejudiced against the [ applicant ] as a consequence of the publicity at the time it was published , and to a certain extent thereafter , I am satisfied that this risk is of a sort that is capable of being managed by the presiding judge during any trial . It is true that there has been an extensive degree of sensational coverage of this case . That is perhaps to be expected in view of the nature of the offence . It may be suggested that it is entirely unsatisfactory that newspapers can state openly that the [ applicant ] is guilty of the offence of murder , that he has previous convictions for analogous offences and that in effect he can be linked to serial killers and similar unsolved offences . However , this sort of reporting is not illegal and can not be until criminal proceedings start against any accused . While therefore the impact of the prejudice from the media coverage may well have been severe during DATE , I am satisfied that it has diminished considerably with the passage of time . It is now DATE since the discovery of the body of PERSON . Although the media coverage was extensive and sensational , it was CARDINAL story in many covered by the same kind of approach in the newspapers concerned . Further , while the details of the disappearance and death of PERSON and the discovery of his remains will no doubt remain in the minds of many , I was not persuaded by the [ applicant \u2019s ] submissions that the link between the murder and the [ applicant ] has achieved the same endurance in the public consciousness . Further , the circumstances and character of a jury trial is such that jurors are compelled to examine the evidence presented to them exclusively and are not primarily influenced by recollections of what may have been reported in a sensational and essentially ephemeral manner some considerable time before . In the concentrated atmosphere of a court room , when the jury are required to focus on the evidence presented to them , the clear directions by the trial judge are , in almost every case , likely to be sufficient to secure a fair and unbiased hearing . The development of the jury system , the strict rules which apply to the presentation of evidence ... and the continuing evolution of judges\u2019 directions to the jury are all designed to secure a fair hearing before an impartial tribunal . If this were not so , it would be necessary to abandon the principle of trial by jury . \u201d","The judge was satisfied that allegations by the applicant that the police had put improper and prejudicial information in the media were without concrete support .","As to the applicant \u2019s complaint that the rule of specialty in the context of extradition precluded the inclusion in the indictment of averments concerning events after the victim \u2019s death , given that the NORP authorities had refused to extradite him on the charge of perverting the course of justice , Lord PERSON found against the applicant . He accepted that the indictment could not include any offence in respect of which extradition had not been granted , and that in the present case it therefore had to be restricted to abduction and murder . He considered the statement accompanying the extradition request , to the effect that death had been brought about by dismemberment or by cause unknown , to have been both reasonable and justified . He further observed that the applicant could face no separate penalty on a charge of perverting the course of justice under the indictment . Even without mention of dismemberment in the indictment , the murder charge would always be aggravated by the method of disposing of the body . He concluded that it was therefore appropriate to include the averments as to dismemberment and disposal .","ORG of the High Court of Justiciary ( \u201c the Appeal Court \u201d ) heard the appeal on DATE . On DATE it refused the appeal and issued a written opinion . On the question of the pre - trial publicity , it observed :","\u201c CARDINAL . ... [ W]e should in the first place say that in our view there is no doubt that the publicity which followed the disappearance of PERSON was extensive and highly prejudicial to the appellant ... It is not , in our view , necessary to go into the publications in particular detail or to recite the various pejorative epithets that were used in relation to the appellant . It is sufficient to note that the information published included statements that the appellant had previously been convicted of murder , that his conviction had been quashed \u2018 on a technicality\u2019 and that he had also been convicted of assault . Moreover , the publications drew attention to the fact that there was some similarity in respect of the use of a razor or similar instrument between the circumstances of the appellant \u2019s previous convictions and the supposed circumstances of the present case . This is just the kind of information which has led to the discharge or refusal of a prosecution , in the few cases in which that extreme course has been resorted to by the court . It is , of course , true that there are legal systems in which the court , and the jury , are permitted to know details of a person \u2019s previous criminal record , but our practice has always set its face very strongly against any such disclosure . It is well known that even accidental disclosure of some minor previous conviction in the course of a trial may well lead to abandonment of the proceedings or at least of the particular indictment . In these circumstances , we have no doubt that publication of such information was very liable to prejudice the accused . Indeed , we would question whether any reporter or editor could have been unaware of the importance which the law of GPE gives to non - disclosure of a previous criminal record . In these circumstances , if the trial had required to proceed within the normal period after the issue of a petition warrant , that is assuming a relatively quick arrest and a trial within DATE , we would have grave doubts as to whether the prosecution could have proceeded with such a timescale . In the light of the pre - trial publicity , the ORG might have had to consider whether to release the appellant from custody and endeavour to bring the case to trial before the expiry of DATE time limit .","If the prejudicial nature of the information is the crucial matter to be put on CARDINAL side ... , the matters to be placed on the other side can be succinctly referred to as the effects of the lapse of time and the process of trial . As has , again , been set out in previous authority , the legal systems which rely on adversarial proceedings and trial by jury are prepared to extend a high degree of trust , which is believed to be well merited , to the readiness of jury men and women to apply the law as it is stated to them and consider the case strictly on the evidence led at a trial . If this were not so , it is doubtful whether the continuance of the practice of jury trial could be justified . Further , as the cases show , it has been generally accepted , not only in GPE , that the effect of prejudicial press publicity tends to diminish with time . While the general public recollection may continue to hold some idea that a particular widely reported event has occurred and that there were some remarkable or sensational circumstances surrounding it , recollection of the details of such publicity is a very different matter . In the present case , the result of the delays which have occurred is that the vast bulk of the publicity is now DATE in the past . It is true that there were reports of the appellant \u2019s return to GPE which might have reminded a reader of the previous narratives , but such reports did not go into any detail in relation to what had previously been reported . They certainly did not repeat the materially prejudicial statements to which we have referred . Apart from the mere lapse of time , account is always taken of the trial process itself which by setting the evidence before the jury in detail and providing them with the expert analyses of counsel and the directions of the judge , is calculated to direct their attention to the evidence and away from any extraneous material . \u201d","As regards the specialty argument and the inclusion in the indictment of an averment of dismemberment , ORG found that the argument before it had added nothing to the considerations which were before the trial judge , whose conclusions ORG upheld .","On DATE , the applicant pleaded not guilty to the charge . His counsel subsequently made a request for an order under section CARDINAL(CARDINAL ) of the Contempt of Court Act DATE restricting the reporting of the trial . The request was refused by Lord PERSON for reasons set out in his written opinion dated DATE .","The judge noted that it had been held in the case of PERSON v. ORG DATE ORG CARDINAL that the power under section CARDINAL ) of the Contempt of Court Act DATE to make an order postponing publication of a fair and accurate report of the trial proceedings was confined to such a publication ; it was not intended for use to prevent unfair or inaccurate reporting , which would be capable of being dealt with as a contempt under section CARDINAL of the Contempt of Court Act DATE . The judge therefore held :","\u201c ... [ I]n my judgment the question for me is whether \u2018 a fair and accurate report CARDINAL the present trial \u2018 held in public , published contemporaneously and in good ORG would create \u2018 a substantial risk of prejudice in the administration of justice GPE these \u2018 ORG . I have come unhesitatingly to the conclusion that it would not . Senior counsel for the accused himself said that he had \u2018 no problem\u2019 with fair and accurate reporting ; his concern lay elsewhere . That acceptance that fair and accurate reporting did not create a problem is plainly fatal to the motion which he made , since , as the Lord Justice General put it in PERSON , section PERSON ) is intended to deal with fair and accurate reports of proceedings which should nonetheless be postponed , not with material outwith the scope of such reports ...","Quite apart from the position taken up by senior counsel for the accused , in relation to the effect of fair and accurate reporting of the trial , I can see no basis at all in this case for concluding that fair and accurate reports of the trial , which will , after all , be held in public , could create a substantial risk of prejudice to the administration of justice in these proceedings . Indeed no case was cited to me in which a ORG has held that such reporting could create such a risk in the proceedings themselves , as opposed to other proceedings . \u201d","On DATE , the jury were called and sworn and the applicant \u2019s trial commenced before Lord PERSON . He was represented by senior counsel .","The applicant \u2019s counsel subsequently invited the court to summon publishers of specific allegedly prejudicial material which had been reported and published on the Internet as news in DATE but remained available on the Internet in the archives of the publications in which it had originally appeared .","On DATE Lord PERSON refused the applicant \u2019s motion , for reasons set out in his second written opinion . In his opinion , the judge referred to the factors identified by Lord Justice PERSON LJ in ORG v. ORG , CARDINAL of which was the likelihood of the publicity coming to the attention of an actual or potential juror . Lord PERSON emphasised that in the present case , as he had been informed by the prosecution and as was not disputed by the defence , the action of entering the applicant \u2019s name into a standard search engine on the Internet would not lead the searcher to the impugned materials . Instead the searcher would have to go to the website of a particular newspaper or broadcaster , and then search its archived material . The judge continued :","\u201c CARDINAL . Among the other factors referred to by PERSON LJ is the focusing effect of listening over a prolonged period to evidence in a case . It appears to me that in the circumstances of the present case this is a factor of some importance . Furthermore , he considered that an important consideration was the likely effect of the judge \u2019s directions to a jury . Likewise , I consider that this is a matter of great importance . At the commencement of the present proceedings I took pains to direct the jury that their ultimate decision would require to be based upon the evidence which they heard in the ORG proceedings , and not upon any extraneous matter which might come to their attention . In due course , that direction will be repeated when the time comes for me to charge the jury . I have no reason to suppose that the jury in the present case will not follow that direction . The system of trial by jury depends upon confidence being placed in juries to follow directions which they are given . \u201d","He was satisfied that the material in question had not been shown to be material which would create \u201c a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced \u201d .","On DATE Lord PERSON rejected the applicant \u2019s objection to the admissibility of a statement by a deceased witness , GPE ( anonymised for the purposes of this present judgment only ) , regarding the applicant \u2019s sexual conduct , for reasons set out in his third written opinion . He considered that its admission would not violate LAW ( d ) of the LAW , noting that , unlike the position in other jurisdictions , the requirement of NORP law for the proof of a criminal charge by corroborated evidence was \u201c a protection of very considerable importance \u201d . As to the evidence contained in GPE \u2019s statement , the judge observed :","\u201c CARDINAL ... Having regard to the nature of the statement of [ GPE ] , at best for the ORG , it might demonstrate only a propensity on the part of the accused to engage in homosexual sexual activity of the kind described in it . In the present case , the ORG will require to lead corroborated evidence of the crimes charged against the accused ; it appears to me that the contents of the statement of [ GPE ] , while they may be of some assistance in the context of a circumstantial case , are unlikely to be able to carry the ORG very far ... \u201d","The judge further referred to the safeguards present in section DATE ) of the Criminal Procedure ( GPE ) Act DATE ( see paragraph CARDINAL below ) and to the fact that particular directions to the jury concerning the weight to be given to GPE \u2019s statement would be necessary . Finally , he noted that it was not said on behalf of the accused that the contents of the statement were untrue . He observed that if , as the evidence in the case unfolded , the significance of the evidence contained in the statement assumed greater importance in the prosecution case , it would be open to the accused to raise the matter again , adding :","\u201c CARDINAL . ... Indeed , the overall fairness or unfairness of the trial in relation to LAW of the convention could be considered in the context of an appeal . As I understand it , it is only in the context of a completed trial that a conclusive assessment of that matter can be made . \u201d","On DATE Lord PERSON ruled that the search warrant was granted in respect of the applicant \u2019s home and refused an adjournment to allow the applicant to challenge its validity by way of bill of suspension , for reasons set out in his fourth written opinion . The case to be presented on behalf of the applicant in respect of the proposed challenge to the validity of the search warrant was that the police and Procurator Fiscal had no sufficient basis for seeking a warrant . The trial judge concluded :","\u201c CARDINAL . ... Having heard what has been said in defence of the warrant , it is clear and not disputed that certain material was placed before the sheriff which supported the granting of the application and ... I am not persuaded that there has been shown a prima facie case of invalidity of the warrant , such as might be raised in a bill of suspension .","In any event , whether an adjournment for the contemplated purpose is to be granted in the course of a trial is plainly a matter for the exercise of my own discretion . While there may be cases in which the granting of such an adjournment would be appropriate , I have not been informed of any case in which that course has actually been followed . In any event , the present trial has now been running for DATE . It is far from clear how long an adjournment for the purpose of the bringing of a bill of suspension would require to be . Moreover , it is obvious that the granting of the adjournment for such an uncertain period would be highly disruptive , so far as the jury is concerned , in a trial which is plainly of importance . Having regard to the fact that the issue sought to be raised in a bill of suspension can , if appropriate , be raised in the course of any appeal which may follow any conviction in this trial , it appears to me that no injustice would be done to the accused by the refusal of the present motion . \u201d","At the conclusion of the trial , Lord PERSON delivered his charge to the jury . As regards prejudicial publicity , his direction was as follows :","\u201c Now , ladies and gentlemen , I have spoken about your responsibility to evaluate and assess the evidence and reach a decision in the light of the evidence . That is what you undertook to do when you took the oath at the start of this trial . So let me dwell for a moment upon what evidence is for this purpose . Evidence quite simply is the testimony of witnesses which is actually given in this ORG including any documentary evidence or other material to which they may refer in the course of what they say which had been produced in the case . That , ladies and gentlemen , is the limit of it . That is what evidence is . Evidence does not include assertions or propositions or suggestions which have been put to witnesses in questions to them with which they did not agree . Furthermore , evidence does not include any extraneous material in any form which may have come to your attention concerning this case or to PERSON PERSON or concerning PERSON PERSON , the accused , from any source outside the CARDINAL walls of this ORG , whether it be in Press , on television or in any other way . Any such material as that should be completely ignored by you . That is not evidence . To pay heed to it would be quite simply a breach of the oath which you took at the start of theses proceedings to reach a decision in the light of the whole evidence in the case . So please , ladies and gentlemen , do bear these matters in mind when you come to deliberate . \u201d","In respect of the allegation in the charge that the applicant had penetrated the victim with his private member , the judge explained to the jury that this amounted to an allegation of sodomy and gave them directions on the circumstances in which anal penetration amounted to a crime .","Regarding the evidence of the deceased witness , GPE , he said :","\u201c ... [ W]hat I must impress upon you is that that material differs from the evidence given by a witness over there in the witness box . [ GPE ] unfortunately could not do that and certain consequences flow from that . Because he is dead , evidence is competent and permissible of the things which he said before he died because that is the only now available material which there can be relating to what he said . However , you should understand that because he is now dead , because he has not been directly a witness in this case , you should approach his evidence in a different way from the way in which you would approach the evidence of a living witness . In the first instance , you have not had the opportunity if seeing [ GPE ] or hearing him giving his evidence . You have not had the opportunity of assessing his demeanour in the way in which you can assess the demeanour of other witnesses . Furthermore , he has not been put on oath in this Court in a formal way which is a matter of significance and more particularly he has not been cross - examined by the lawyers who have appeared in this case in the way that they have been able to cross - examine other witnesses . So these features mean that you should approach his evidence , the material which is in the statement which he is said to have made , with critical care and you should assess its weight in the light of the considerations which I have just mentioned . \u201d","The judge also directed the jury that no adverse inferences could be drawn from the fact that , when charged following a caution in which he was told that he did not need to say anything , the applicant chose to accept the invitation to say nothing .","On DATE the applicant was convicted of murder by majority verdict of the jury . He was sentenced to life imprisonment with a tariff ( punishment part ) set at DATE , to run from DATE .","In passing sentence , Lord PERSON noted :","\u201c ... [ Y]ou have been convicted of the crime of murder . ORG has enacted that there is CARDINAL sentence which can be imposed in such a case which is imprisonment for life . Accordingly , that is the sentence which I impose ...","...","It is also my duty in terms of LAW of DATE to state that you have been convicted of a sexual offence to which Part CARDINAL of that Act applies . Accordingly you are subject to the notification requirements contained in that Act ... \u201d","On DATE the applicant \u2019s legal advisers lodged a formal note of appeal against conviction and sentence . The note contained CARDINAL grounds of appeal against conviction , each ground being subdivided into a number of subparagraphs , and CARDINAL ground of appeal against the tariff part of the applicant \u2019s sentence .","The grounds of appeal against conviction related to : publicity issues ; the admission of the statement of GPE ; the conduct of the prosecutor at trial ; the granting of the search warrant ; the sufficiency of the evidence ; the admissibility of evidence of the applicant \u2019s travel to the GPE ; the rule of specialty ; and the compatibility of the jury trial with the Convention .","On DATE , following the disclosure process which took place during the appeal proceedings , the applicant lodged a further ground of appeal regarding non - disclosure in relation to a police statement , which had been noted by the police in DATE , of GPE , a witness who had given oral evidence at trial . Subsequent to making her initial statement to the police , ORG had been precognised , i.e. interviewed , by both the prosecution and the defence .","The appeal against conviction was heard DATE and DATE .","On DATE the court handed down its judgment refusing all the grounds of appeal against conviction . It made some comment at the outset regarding the delay in the appeal process and observed :","\u201c CARDINAL . ... At a cost no doubt to the progress of the cases of other appellants , the court was able to arrange for the appeal to be heard DATE in DATE . \u201d","Further relevant extracts of the court \u2019s judgment are summarised below .","Under this head , the applicant complained about prejudicial publicity both prior to and during his trial . He relied on LAW and complained in particular about the nature of the publicity ; the alleged involvement of the authorities in the dissemination of information to the press ; the failure of the court to control the publicity ; the failure of the prosecuting authorities to control the publicity ; the failure of the court to take steps to manage the trial in the light of the prejudicial publicity ; and aspects of the NORP jury system .","ORG referred at the outset to the opinion of Lord PERSON in response to the applicant \u2019s plea in bar of trial ( see paragraphs CARDINAL above ) and to the fact that the matter had been considered on appeal ( see paragraph CARDINAL above ) . It also noted the terms of Lord PERSON \u2019s warnings to the jury , both at the start of trial and in his charge to the jury ( see paragraph CARDINAL above ) . The court considered that in approaching matters of publicity , it was important to note the nature and , in particular , the timing of the potentially prejudicial publicity . It reviewed the submissions of the applicant \u2019s counsel before Lord PERSON as to the publicity which had occurred following the search of the applicant \u2019s home , and quoted extensively the findings of ORG in its judgment in DATE ( see paragraph CARDINAL above ) . It noted that DATE and DATE had elapsed since the publicity of which the applicant complained was published by the time that ORG gave its decision on DATE , and a further DATE ensued before the trial began .","As to the subsequent refusal of Lord PERSON to allow the section CARDINAL(CARDINAL ) motion ( see paragraphs CARDINAL above ) , the court said :","\u201c CARDINAL . Before us , ... counsel for the appellant , sought to question this decision by the trial judge on the basis that postponement of fair and accurate reporting of the trial proceedings was a potential safeguard and that with the benefit of hindsight the focus of trial counsel and the court was too narrow . However , on the court \u2019s testing that assertion , what was submitted was that reading fair and accurate contemporaneous reports of the trial might revive in the minds of the jury some earlier press report which they might have read DATE .","We are unable to accept this branch of the argument for the appellant . ... [ T]he trial judge was undoubtedly correct in refusing the motion for postponement of fair and accurate reporting of the trial . There was no proper basis upon which he could have acceded to the motion made to him . Moreover , and perhaps more importantly , there is no suggestion in what was put before us that the allowance of the normal rule of reporting matters fairly and accurately resulted in fact in the realisation of the apprehension of trial counsel that the allowance of the contemporaneous publication of such fair and accurate reports would be the source of a repetition of the prejudicial material published prior to the proceedings becoming active . The apprehension upon which the motion was advanced not having materialised , we are unable to see how it could be contended that the refusal of this motion rendered the trial unfair . Moreover , we are unable to understand the suggestion , advanced by counsel for the appellant to us , that the reading by a member of the jury of a fair and accurate report of the DATE \u2019s proceedings should prompt a mental reaction of recalling prejudicial material which would not derive from the hearing of the whole evidence on that and DATE of the trial . \u201d","Regarding Lord PERSON \u2019s refusal to summon certain publishers to court ( see paragraphs CARDINAL - CARDINAL above ) , ORG observed that it was accepted by both prosecution and defence that the impugned materials were archived material originally published before the criminal proceedings had become active on DATE and that they could not be accessed by entering the applicant \u2019s name into a standard Internet search engine . It noted that the applicant did not submit that Lord PERSON had erred but rather that the focus before the trial court had been too narrow . ORG referred to the applicant \u2019s submission that warnings to the jury to ignore extraneous material were insufficient and that vetting or sequestration of the jury ought to have been carried out , and observed :","\u201c CARDINAL . ... [ W]e start by accepting , as did ORG dealing with the pre - trial TIME , that the articles appearing in the press and other broadcasting media in the interval between , on the one hand , the discoveries in GPE GPE on DATE and more particularly the search of the appellant \u2019s flat on DATE and , on the other hand , the criminal proceedings becoming active on DATE were highly prejudicial to the appellant . But , as that ORG recognised , in part at least as a result of the interposition of the extradition proceedings , the reality was that a substantial period of time had elapsed since the publication of the offending material in DATE . In the event , the trial began DATE after the proceedings became \u2018 GPE . It has , in our view , been consistently noted by the courts that the passage of time may assuage the effects of prejudicial media reporting ... We recognise of course that it is not a simple matter of measuring the extent to which time has elapsed . The nature of the prejudicial material and other relevant factors may come in to play . Further , as the courts have consistently recognised in the authorities to which we were referred , the discipline of the trial process is another important factor in the evaluation of whether the holding of a trial against a history of prejudicial publicity is unfair . Put shortly , the jury having been participant in an ongoing inquiry in which they have heard the actual evidence from a variety of classes of witnesses , it is that evidence which will be at the forefront of the mind of the jurors and which will predominate over any distant memory the jury might have of some earlier publicity .","... Lord ORG \u2019s observation was to the effect that whereas the court may be presented with an assembly of a number of prejudicial published articles , it is highly improbable that any potential juror would have read all of that material ; there is thus a danger in overestimating the impact which prejudicial publicity may have had on any particular juror . \u201d","The court noted that the trial judge had given the jury very clear directions in his charge on the need to decide the case only on the evidence and to set aside any extraneous material , referring specifically to items in the press , on the television or in any other source , and that similar instructions were given to the jury at the very start of the trial . It concluded :","\u201c CARDINAL . In our view these were all important factors or safeguards against any effect on the trial which might have emanated from what was published in the various organs of the media in the interval between CARDINAL and DATE , and more particularly between DATE and CARDINAL DATE , since it was only on DATE that the appellant was identified in the press . Certainly , in an era before the archiving of material in electronic form on internet websites , we consider that a court would not have difficulty in dismissing the contention that such prejudicial publicity in that short interval prior to the criminal proceedings becoming active inevitably , and without anything further , rendered a trial taking place DATE unfair where the directions given by the trial judge in the present case had been so given . \u201d","As to the additional \u201c internet dimension \u201d , the court reiterated that it was not suggested that , respecting the state of internet search engines in DATE , the information given to the trial judge as to access to archived material was flawed . ORG therefore accepted that at the time of the trial , in order to obtain access to the prejudicial archive material , a relatively determined search was required which involved , first , selecting a publisher \u2019s website and then entering into a further search within that archived website . The court also observed that it was accepted by both counsel for the applicant and the prosecution that while in DATE many people did have access to the Internet , the extent of familiarity with and use of the Internet was less than obtained in DATE .","ORG concluded :","\u201c DATE . It is against that background of circumstances as they were in DATE that we consider the suggestion , never formulated as a distinct proposition or submission , that to ensure a fair trial the trial judge , in DATE , was required , additionally to the other instructions which he gave at the start of the trial , to direct the jury to the effect that the jury members should not undertake any internet inquiries . It is to be observed , first , that the giving of such an additional instruction or direction to the jury was never suggested to the trial judge by either trial counsel ... Secondly , there may be intelligible reasons why that suggestion was not made . Whether such an instruction is a good idea is a matter of debate . As the Solicitor General related , in his recent personal experience , the giving of such a direction was seen as not being DATE or at least not always being \u2013 in the interests of the defence . Thirdly , the model directions culled from GPE and the bench book in use in ORG in GPE and GPE to which we were referred by counsel for the appellant are not only not mandatory in those jurisdictions but also were not in force at the time of the appellant \u2019s trial . They were introduced much later . The same , in our view , applies to the observations recently made by the court in PERSON v HM Advocate [ DATE SCCR CARDINAL where ORG indicated that , in an appropriate case , the trial judge might give the jury a suitably framed direction about not actively seeking material about the accused on the internet ] . The fact that some jurisdictions selected by counsel for the appellant have chosen CARDINAL path does not indicate a universality of wisdom . There are no doubt others who may have chosen not to follow that particular path . \u201d","In the circumstances the court was satisfied that the fact that the trial judge did not additionally and specifically instruct the jury not to undertake Internet searches did not involve any failing on his part . His primary instruction was to ignore any extraneous materials and to pay attention only to the evidence and in the view of ORG it was implicit in that instruction that the members of the jury should not seek out such extraneous materials .","As to the suggestion that the trial judge should have ordered that the jury members be sequestered for the entirety of the trial or should have arranged for them to be vetted , ORG noted :","\u201c DATE ... Although at CARDINAL point trial counsel floated such a course as a possible motion which he might make , in the event no such motion was made , we think wholly understandably . The notion that the members of the jury should be sequestered in hotel accommodation TIME and every weekend in conditions , even within the hotel , precluding access to the internet , is so disproportionate that it can readily be rejected . In reality , of which we think trial counsel would be very conscious , such sequestration of the jury might be likely to \u2018 PERSON seriously against the accused . Secondly , it was suggested that the trial judge ought to have embarked on an exercise of jury vetting , by specifically questioning the members of the jury regarding their respective recollections of the media articles published DATE previously . Suffice to say that such a procedure is without any warrant in our law and is wholly inconsistent with our practice of jury selection . We are not in the least surprised that responsible trial counsel did not make any such suggestion to the trial judge , who , in our view , could not have acceded to such a suggestion were it to have been advanced . \u201d","For these reasons the court rejected the ground of appeal relating to prejudicial publicity .","The applicant contended that the trial judge had erred in admitting the statement made by GPE and that the admission had rendered his trial unfair .","ORG referred to Lord PERSON \u2019s opinion on this matter ( see paragraphs CARDINAL above ) and continued :","\u201c DATE . ... [ W]e agree ... that [ GPE \u2019s ] statement was simply CARDINAL piece of circumstantial evidence to be considered along with many other pieces of circumstantial evidence . [ GPE ] was relating what the appellant had told him of his habitual behaviour , preferences , and sexual interests ... Once all the evidence had been led , [ GPE \u2019s ] statement , if accepted by the jury and considered along with the other pieces of circumstantial evidence which they accepted , might assist them to some extent in drawing inferences about how and why the deceased , last seen in GPE town centre , and who had no previous connection with the appellant , and who did not normally go to places with strangers , might end up in the appellant \u2019s company and in his flat . But , while accepting that the hearsay evidence was thus not irrelevant , in light of all the other evidence in the case , we agree with ORG that the appellant \u2019s conviction can not be said to have been based solely or to a material extent upon [ GPE \u2019s ] statement . The statement was simply CARDINAL of many relevant pieces of circumstantial evidence . \u201d","It further noted that the trial judge had given directions to the jury warning them to treat the evidence of GPE with caution , for reasons which he carefully explained ( see paragraph CARDINAL above ) . The applicant had not sought to argue that the jury were misdirected . The court added :","\u201c CARDINAL . ... [ E]vidence concerning the appellant \u2019s sexual interests and his statement as to what had occurred on TIME in question was also led from [ B. ] . Many other adminicles of circumstantial evidence were available to the jury to enable them to draw inferences and form a view . Thus the evidence of [ GPE \u2019s ] statement did not stand alone and was not thus a crucial element in the prosecution case . So we are unable to detect any sound basis upon which it would be open to us to hold that the admission of evidence from the police officer of what [ GPE ] said to him , by reason of its being hearsay evidence , constituted a breach of any ORG right of the appellant . \u201d","The applicant complained that the conduct of the prosecutor was such as to deprive him of a fair trial , as he had made frequent , deliberate , inappropriate and prejudicial comments both in the course of the evidence led before the jury and in his address to them at the conclusion of the trial to the effect that the applicant had been able to give evidence about matters which were relevant to the issues to be considered by the jury and that his silence was to be interpreted as proof of his guilt .","ORG examined the impugned acts and comments of the prosecutor . It observed that the posing of rhetorical questions was a recognised and legitimate oratorical technique in a criminal trial , and that the prosecutor had employed this technique frequently in his speech in relation to a variety of matters . On the argument made by the applicant , it concluded :","\u201c DATE . ... It is important to appreciate that nowhere in the words spoken by the Advocate depute was there any reference to the appellant \u2019s having had the opportunity of giving evidence to provide an answer to the Advocate depute \u2019s rhetorical question and having failed to do so . The trial judge in his charge to the jury underscored the need not to draw any adverse inference from the appellant \u2019s not having given evidence . \u201d","This ground of appeal was accordingly rejected .","The applicant contended , inter alia , that the trial judge had erred in refusing an adjournment of the trial to enable him to seek the suspension of the search warrant on the grounds that it had been granted without adequate reasons .","ORG noted that in response to its request to the Sheriff who had granted the search warrant , the latter had produced a report dated DATE , in which he set out his recollection of the hearing . ORG observed that , unsurprisingly given the lapse of time , it was apparent from that report that the ORG could remember little of the detail of the hearing . It explained that with a view to overcoming this , the applicant \u2019s lawyers had been supplied with a typed , essentially contemporaneous attendance note prepared by ORG , summarising the material laid before the Sheriff . ORG quoted the terms of the attendance note in full . In relevant extract , it recorded the following :","\u201c Sheriff PERSON asked for justification and I informed him that the limbs and head which had been recovered were those of the missing PERSON , and that the police had carried out a GPE [ modus operandi ] profile with ORG [ ORG ] . The only suspect in GPE turned out to be PERSON , not only that , he lived in GPE .","The sheriff was advised of the information which the police had in relation to Beggs\u2019 previous conviction at ORG , where he had picked up and intoxicated a young boy , who awoke to find PERSON cutting his leg ... The sheriff was also advised of the NORP conviction for murder and for wounding , and the fact that in relation to the woundings , PERSON had cut his victims . He was also advised that the flesh on the limbs had been cut in a similar way before the bones had been cut .","Mr PERSON advised the sheriff that in addition to the background information given above , PERSON is known to have left this country and gone to GPE , and it is suspected is still there , the inference being that he has fled from this jurisdiction . I further advised the sheriff that we also suspected that the dismembered parts of the body had been taken by PERSON , in his motor car , to the places where they were disposed of , and that he is known to have driven CARDINAL motor car to GPE , left it there and returned on foot .","Finally I moved the sheriff to grant the warrant on the basis that the intrusion into PERSON private life was relatively minor compared to the very serious crime under investigation , and therefore that the balance of the public interest lay in granting the warrant . \u201d","ORG observed , having regard to the terms of the attendance note :","\u201c CARDINAL . ... In essence , the basis given for suspicion having fallen on the appellant was primarily information held by the police of previous convictions of the appellant and what might be termed police intelligence of other incidents in which there was information considered by the police as implicating the appellant but in which the evidence had been insufficient to allow prosecution . That was supplemented by such suspicions as were raised by the appellant \u2019s movements to and from GPE ... \u201d","In so far as counsel for the applicant sought to argue that it was illegitimate or inappropriate for the prosecuting authorities to have based suspicion on a police analysis of modus operandi , ORG rejected the suggestion , noting :","\u201c CARDINAL ... In an appropriate case , the police and the prosecutor are , in our view , entitled to proceed upon the basis that information on a person \u2019s criminal history and analysis of modus operandi places that person in the position of a suspect . Clearly , it is not necessary when seeking a warrant that the prosecuting authorities have evidence to establish guilt ; the purpose of seeking the warrant to search the property or person of the suspect is with a view to getting evidence helpful to prove the suspicion , or from the suspect \u2019s standpoint possibly eliminating him from that field of suspicion . In our view , the present case was CARDINAL in which it was appropriate for the police and the prosecuting authorities to proceed upon the basis of previous criminal history ( whether by court conviction or police intelligence ) and a modus operandi analysis . Additionally , there was the information held respecting the appellant \u2019s movements to and from GPE .","DATE . ORG therefore concluded that there was clearly a proper basis upon which ORG sought the grant of the search warrant and that the Sheriff had not erred in exercising his discretion to grant it . In this regard , the court observed that it was apparent from the attendance note that the Sheriff was reminded of the need to balance the public interest in the investigation of crime against the private interest of protection against unwarranted interference in the applicant \u2019s private life .","The applicant contended that the trial judge had erred in rejecting a submission on the sufficiency of the evidence regarding various aspects of the charge , including in particular the alleged penetration of the deceased \u2019s hinder parts by the applicant .","ORG , having reviewed the evidence presented at trial , considered that there was an adequate evidential base upon which a jury could infer that penetration by the penis had occurred and that the victim had not consented . It therefore rejected this ground of appeal .","The applicant argued that he was convicted and sentenced in breach of the rule of specialty having regard to the terms of the indictment , and in particular the inclusion of references to dismemberment and sodomy ; the leading of evidence which was put before the jury as criminal conduct ; the basis upon which conviction was sought by the prosecution ; the basis upon which the jury were charged ; and the terms of his sentence .","As to the inclusion of the averment of dismemberment in the indictment , ORG referred to the opinion of ORG ( see paragraph CARDINAL above ) and the judgment of ORG agreeing with that opinion ( see paragraph CARDINAL above ) . It considered that the finality of that decision was not open to being re - visited in the appeal .","The applicant \u2019s principal argument was directed at the inclusion in the indictment of the averment that the applicant \u201c did assault [ the deceased ] ... and penetrate his hinder parts with your private member \u201d , not argued before Lord PERSON . According to the applicant , this alleged a separate crime of sodomy , not charged as such in the extradition request , and so the court had no jurisdiction to entertain this allegation of criminal conduct .","ORG first examined the scope of the specialty rule , observing :","\u201c CARDINAL . ... [ T]he specialty principle prevents a ORG to which a person has been surrendered from prosecuting that person for an offence different in its essential nature from the charge , or any of the charges , upon which he or she was extradited . The rule does not however have any effect , or operate any restriction , upon the evidence which may be deployed by the prosecutor in proof of the commission of the criminal conduct in respect of which the person was surrendered ; and that is so even if the evidence so deployed discloses or suggests the commission of a criminal offence for which extradition was not granted by the sending ORG .","We would add that these conclusions are , in our view , entirely consistent with the origins and rationale of the specialty rule . The rule is primarily CARDINAL of international law . It is concerned with respecting the power of the extraditing ORG to refuse extradition and ensuring that in so far as that ORG has a discretion to refuse extradition , that discretion is not abused by the receiving ORG . Its principal purpose is thus to preserve comity between GPE , rather than effect a protection for the accused . Given that such is the primary purpose , it is in our view comprehensible that the rule should not be concerned with the nature of the evidence and procedure followed in prosecuting the extradition offence or whether the evidence tendered in the proof of that offence might also indicate the commission of some other offence or involve the commission of some lesser offence within the category of the extradition offence ... \u201d","Turning to the inclusion of the averments of anal penetration in the indictment , the court observed that while the trial judge had treated them as amounting to an allegation of sodomy and had given the jury appropriate directions on that crime , it had reservations whether they were properly to be seen as averments of sodomy rather than incidents in the indecent or sexual assault to which the indictment referred . It did not see in the trial judge \u2019s approach anything detrimental to the applicant \u2019s position . It continued :","\u201c CARDINAL . ... [ T]he fact is that the indictment did not include any charge of sodomy separate from the charge of assault and murder and thus no penalty separate from that imposed in respect of the murder could have been imposed upon the appellant in respect of the averment said to be an averment of sodomy . \u201d","DATE . As regards the breach of specialty allegation , the court explained :","\u201c CARDINAL . In the judicial decisions to which we were referred respecting the specialty rule or principle there is recognition that in extradition cases , obviously , one can not operate a narrow technical approach as to the juristic ingredients in a particular offence ; a more \u2018 conduct based\u2019 approach needs to be followed ... We consider that in principle that view is sound . As was pointed out by ORG , the first petition warrant upon which extradition was granted referred to the possibility of establishing the death by \u2018 some other means to the petitioner presently ORG . At that point in time , the torso of the deceased had not been recovered and hence the procurator fiscal was ignorant of such details of the assault upon the deceased as might later be revealed by that examination . In the event , those details revealed evidence of forcible anal penetration . So , as part of the allegation of assault leading to death , those details were an inherent element of that assault . In other words they were part and parcel of the conduct founding the proof of the extradition charge . On the broader , conduct based approach required in the application of extradition law , we thus do not consider that the possibility that domestic law might technically , or , in the old - fashioned sense of the adverb , nicely , identify a part of the averments of the details of the assault upon the deceased as containing an averment of sodomy leads to any violation of the specialty principle .","Accordingly we do not consider that it can properly be said that the appellant was proceeded against and convicted , separately from the charge of murder , of a distinct charge of sodomy any more than it may be said that he was separately proceeded against and convicted of the discrete charge of assault . The appellant faced a single charge of murder , within which were contained as part of that charge the lesser allegations of assault , including the averment of anal penetration . Whether that be categorised as indecent assault or sodomy it remains a matter within the murder charge . These were lesser offences included within the charge of murder and for the reasons which we have endeavoured to indicate their inclusion did not offend against the international law principle of specialty . Further , in passing sentence , the trial judge stated that the appellant had been convicted of murder and he passed sentence for that offence . No separate penalty was imposed in respect of assault or indeed sodomy . The extract conviction , providing the warrant for the appellant \u2019s imprisonment , records the conviction as being that of murder alone . \u201d","Although , having passed sentence for murder the trial judge went on to say that the applicant had been convicted of an offence to which LAW applied ( see paragraph CARDINAL above ) , without explaining the basis for that pronouncement , this did not alter the terms of the conviction by the jury and did not in itself give rise to any liability to the notification requirements in LAW .","ORG therefore found that no breach of the rule of specialty had occurred in the applicant \u2019s case .","The applicant argued that the absence of reasons for the jury \u2019s decision , in a case as factually and legally complex as his was , violated his LAW . He relied , inter alia , on the judgment of LAW in GPE v. GPE , no . CARDINAL\/CARDINAL , DATE ; a request for referral to ORG was pending at the time .","ORG examined the general tenor of this ORG \u2019s caselaw on the need for reasons , putting to CARDINAL side its recent judgment in GPE , and observed :","\u201c CARDINAL . [ W]e consider that it is clear from the judgments and decisions to which we were referred that the ECtHR\u2018jury\u2019 , the fact that , in returning its verdict , such a jury does not deliver an exposition of its reasoning does not in itself involve any infraction of LAW . In that respect we refer to the passages , to which reference has already been made , in the decisions in PERSON v GPE ; PERSON and ORG v GPE ; and ORG ( No . CARDINAL ) in which the view taken is that the absence of any direct delivery of reasons by the jury itself may be offset by the discernability of the basis of the jury \u2019s decision from the procedural framework in which the jury operates . We would also mention that , although we were not referred to the decision , in PERSON v GPE ( DATE ) CARDINAL EHRR CARDINAL the ECtHR , at para CARDINAL of its judgment , acknowledged that \u2018 ... the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of LANGUAGE trial law which serves to reinforce the jury \u2019s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have ORG . \u201d","As to the impact of Taxquet , the court referred to an analysis by Judge PERSON , giving the lead judgment of ORG in the case of PERSON v. ORG , CARDINAL\/CARDINAL , DATE , and agreed with her that Taxquet was not to be read as imposing a requirement that a jury supply reasons for its verdict . In the applicant \u2019s case it observed :","\u201c CARDINAL . Just as in any other jury trial in GPE , the verdict returned by the jury in the present case is not returned in isolation . It is given within a framework which includes , in particular , the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge . It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the ORG case and the evidence which the ORG invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict . Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted . It is also not suggested that the trial Judge \u2019s charge to the jury did not adequately identify all the matters which the ORG had to establish , or fail to analyse or describe the necessary elements or ingredients in the offence . Accordingly , from that framework and also from the evidence in the case , the basis of the conviction is discernable . With a jury verdict thus placed in such a framework , we do not consider , having regard to the case law of the ECtHR to which we were referred , that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of LAW .","We would add that in the submission as initially presented and also in the ground of appeal , it is suggested that the circumstances of the present case were somehow so complicated or unusual that the normal procedures or framework within which a jury verdict is returned did not suffice . We do not agree with that suggestion . The indictment contained a single charge and , while no doubt a number of legal issues arose in the trial and required to be dealt with by the trial judge , the matters for the jury were not in our view extraordinary or particularly complex ... Further , we would add that the fact that the ORG case was largely circumstantial clearly does not take this case out of the ordinary . \u201d","The applicant contended that the fact that the witness statement by ORG was first placed in the hands of his lawyers in DATE prevented him from calling the witness or making use of the information in the statement in the cross - examination of other witnesses .","ORG noted at the outset :","\u201c CARDINAL . It is plain that the drafter of the Note [ of appeal ] proceeds under a serious misconception . [ ORG ] was included as a witness on the list annexed to the indictment , and so could have been called by the defence , had it not been that , of course , she was in fact called by the prosecution and cross - examined by the defence . Further , while her police statement might in theory afford scope for cross - examination on the basis of a prior inconsistent statement , it could not be deployed as a tool of crossexamination of other witnesses , as the drafter seems to have thought . \u201d","The court nonetheless heard submissions from counsel on the basis that the non - disclosure had prevented cross - examination of GPE during the trial on the basis of a prior inconsistent statement . It noted :","\u201c CARDINAL . ... As matters emerged in the argument before us , the only possible differences between what the police noted as being [ ORG \u2019s ] account and her ultimate evidence was that in the former she is recorded as having said that she noted blood at the left side of the deceased \u2019s mouth following a punch to the deceased \u2019s face by [ G.B. ] ; that apart , she saw no other injuries to the deceased ; and that , following the cessation of the fight or altercation , the deceased began to punch his own head \u2013 something which he had done before when drunk . \u201d","The court observed that ORG had been precognosed by both sides and that the results had essentially been the same ; and that ORG evidence at trial did not materially depart from the precognitions . It continued :","\u201c CARDINAL . ... So it is perhaps unlikely that [ ORG ] would readily and persuasively accept the accuracy of the police officer \u2019s note of the interview ; and were she not to do so , evidence from the police officer to contrary effect , if accepted , would not of course establish the truth of the statement , but might damage her reliability and thus impede the defence in its invocation of the evidence of [ ORG ] as undermining the ORG contention . But more importantly , were [ GPE ] , on being presented with the terms of her statement as noted by the police officer , to have accepted that she did see some blood at the mouth of the deceased , following a punch from [ PERSON ] , and that at some point shortly thereafter the deceased , having got up from the ground , began to punch himself in accordance with a proclivity seen by the witness on previous occasions when drink had been taken , we are unable to see how those additional matters materially assist the defence contention that the serious facial injuries , including the fractures of the underlying bone structures , were caused prior to the deceased \u2019s entry to the appellant \u2019s flat . Were the jury to take account of those additional matters , that account would have to be taken not only in the context of all of the rest of [ ORG ] evidence , but also the wider context of all of the other evidence respecting the [ G.B. ] encounter and events preceding and succeeding , including the evidence of his seeking entry to ORG in an uninjured state ; and , of course , the medical evidence . We therefore have grave difficulties in seeing how , realistically , disclosure of the police note of the interview could have possibly affected the outcome of the trial or given a real possibility of a different outcome ... \u201d","ORG was therefore satisfied that the absence of the police statement from the defence file , an absence , it noted , which was also shared by the prosecution , did not result in material prejudice to the applicant or in the trial being unfair .","The applicant \u2019s counsel urged ORG not only to consider each ground of appeal separately but to look at them as a whole to decide whether the trial had been fair .","ORG gave the submission consideration but was not persuaded , looking at the grounds jointly and collectively , that a miscarriage of justice had occurred .","On DATE , ORG refused leave to appeal to ORG on CARDINAL grounds of appeal identified which , the applicant contended , raised human rights issues .","In respect of the first ground of appeal regarding the rule of specialty , ORG found that no devolution issue arose ( see CARDINAL - CARDINAL below ) .","As regards the second ground of appeal in respect of prejudicial publicity , leave was refused on the basis that it did not raise a matter of general public importance .","Leave to appeal was also refused in respect of the third ground of appeal based on the absence of reasons from the jury . ORG indicated that it was for ORG to decide whether leave should be granted on this ground .","Finally , ORG refused leave to appeal on the basis of the non - disclosure of the statement by ORG It noted :","\u201c CARDINAL . ... As is stated in the Note [ of appeal ] , for whatever reason , the members of this court understood from the submissions that [ NORP ] had given evidence at the trial whereas it appears that , while she was listed as a witness at an earlier stage in the proceedings and while she was precognosed by both the ORG and the defence , she did not in fact give evidence . However , the real issue raised by this additional ground of appeal was whether , to the extent that the police statement contained any details different from or additional to what had been ascertained by precognition , the defence were materially prejudiced and that issue is unaffected by the misunderstanding ... \u201d","As to the applicant \u2019s submission that for the purposes of deciding whether to grant leave it was important to consider the various complaints \u201c in the round \u201d , ORG said :","\u201c CARDINAL ... For our part we do not consider that this is a proper approach . In our view in considering an application for leave to appeal to ORG of GPE , it is necessary to identify and formulate a specific issue or specific issues which properly constitute a devolution issue or issues . \u201d","On DATE ORG refused the applicant \u2019s application for leave to appeal against conviction .","On a number of occasions , starting in DATE , letters from the applicant \u2019s legal advisers were opened by prison officers at ORG . Although the applicant received official apologies and assurances that it would not happen again , the incidents continued .","In DATE the applicant lodged a petition for judicial review in respect of the opening of his privileged correspondence by prison staff , arguing a violation of LAW .","On DATE , in the context of the judicial review proceedings , the NORP ministers gave an undertaking not to open , or have the applicant open in the presence of prison staff , the applicant \u2019s privileged correspondence or correspondence from the ORG Commissioner sent to ORG . The judge refused the applicant \u2019s motions for interim interdict ( injunction ) and interim declarator , noting the terms of the undertaking . The applicant appealed .","While the applicant was detained in FAC , his letters were once again opened , the undertaking of the NORP ministers applying only to mail sent to ORG . On DATE , the NORP ministers extended their undertaking to cover FAC .","On DATE a prison officer at ORG opened a letter from the ORG Commissioner to the applicant in the latter \u2019s presence . It transpired that the staff responsible for sorting and delivering mail did not understand that the undertaking applied to correspondence with the ORG Commissioner .","The applicant sought a contempt of court order against the NORP ministers for the breach of the undertaking . On DATE , judgment was handed down in the appeal and the court found the NORP ministers in contempt of court .","Pursuant to section CARDINAL ) of the Criminal Procedure ( Scotland ) Act DATE ( \u201c the DATE LAW ) , the trial of an accused on indictment must commence within a period of DATE of the first appearance of the accused on petition in respect of the offence . However , in respect of an accused in detention , section CARDINAL(CARDINAL)(b ) provides that the trial must commence within DATE .","A general practice exists in GPE of prosecution and defence lawyers taking statements from witnesses before the trial commences and preparing a written record of the ORG evidence . These statements are knows as precognitions . ORG are inadmissible as evidence at trial but allow lawyers on both sides to know in advance what will be the oral evidence of the witness during the trial .","ORG . NORP Scots criminal law distinguishes between summary and solemn procedure . In the former the trial takes place before a judge sitting alone . In the latter , which is reserved for more serious offences , the trial takes place before a judge and a jury of CARDINAL members on the basis of an indictment .","By section CARDINAL(CARDINAL ) of the Criminal Procedure ( GPE ) Act DATE ( \u201c the DATE LAW ) , immediately after the close of the evidence for the prosecution , the accused may intimate to the court his desire to make a submission that he has no case to answer both : ( a ) on an offence charged in the indictment ; and ( b ) on any other offence of which he could be convicted under the indictment .","If the trial judge rejects a submission of no case to answer , the defence case is presented . The prosecution and defence then address the jury . The presiding judge then charges the jury . The role of the presiding judge in charging the jury was restated by the Lord Justice General in GPE v. ORG ( DATE ) JC CARDINAL :","\u201c The primary duty of the presiding judge is to direct the jury upon the law applicable to the case . In doing so it is usually necessary for him to refer to the facts on which questions of law depend . He may also have to refer to evidence in order to correct any mistakes that may have occurred in the addresses to the jury , and he may have occasion to refer to the evidence where controversy has arisen as to its bearing on a question of fact which the jury has to decide . But it is a matter very much in his discretion whether he can help the jury by resuming the evidence on any particular aspect of the case . \u201d","The jury may return CARDINAL of CARDINAL verdicts : CARDINAL of guilty and CARDINAL alternative acquittal verdicts of not guilty or not proven . No reasons for any of the CARDINAL verdicts are given by the jury . However , by section CARDINAL(CARDINAL)(b ) of LAW , there is a right of appeal in respect of any alleged miscarriage of justice , which includes a miscarriage based on the jury having returned a verdict which no reasonable jury , properly directed , could have returned .","Section CARDINAL of the CARDINAL Act sets out a number of exceptions to the general rule in NORP law that hearsay evidence is inadmissible in criminal proceedings . CARDINAL such exceptions arises where the witness who made the statement is dead .","Section CARDINAL(CARDINAL ) provides that where evidence of a statement made by , inter alia , a person who has subsequently died :","\u201c ( a ) any evidence which , if that person had given evidence in connection with the subject matter of the statement , would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings ;","( b ) evidence may be given of any matter which , if that person had given evidence in connection with the subject matter of the statement , could have been put to him in cross - examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross - examining party ; and","( c ) evidence tending to prove that that person , whether before or after making the statement , made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself . \u201d","Pursuant to section CARDINAL(CARDINAL ) of the Contempt of Court Act DATE ( \u201c the DATE Act ) , a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced may constitute a contempt of court tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so .","Section CARDINAL(CARDINAL ) of the DATE Act allows the court , where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in the proceedings before it , or in any other proceedings pending or imminent , to order that the publication of any report of the proceedings , or any part of the proceedings , be postponed for such period as the court thinks necessary for that purpose .","At the relevant time LAW DATE applied to the extradition proceedings . Section CARDINAL ) of the Act provided :","\u201c Where any person is returned to GPE by a foreign state in pursuance of extradition arrangements , he shall not , unless he has first been restored or had an opportunity of leaving GPE , be triable or tried for any offence committed prior to the surrender in any part of GPE , other than\u2013","( a ) an offence in respect of which he was returned ; or","( b ) any offence disclosed by the particulars furnished to the foreign state on which his return is grounded ; or","( c ) any other offence in respect of which the foreign state may consent to his being tried . \u201d","Article CARDINAL of LAW DATE deals with the principle of specialty and provides","\u201c CARDINAL . A person who has been extradited shall not be proceeded against , sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited , nor shall he be for any other reason restricted in his personal freedom , except in the following cases :","a. when the ORG which surrendered him consents ... ;","b. when that person , having had an opportunity to leave the territory of the ORG to which he has been surrendered , has not done so within DATE of his final discharge , or has returned to that territory after leaving it .","... \u201d","Section CARDINAL(CARDINAL ) of the Scotland Act DATE provides that ORG ( of which the Lord Advocate is a member ) has no power to act in a manner incompatible with the Convention .","A devolution issue is an issue raised under Schedule CARDINAL to LAW concerning whether a legislative provision or an administrative act passed or taken under LAW DATE is within the powers of ORG or ORG . Notwithstanding the general rule in GPE that ORG is the final court of appeal in criminal matters , a devolution issue can be appealed to ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79047","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2007,"docname":"CASE OF FARHI v. FRANCE","importance":2,"conclusion":"Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient","judges":"","text":["The applicant , who was born in DATE , is currently in custody in FAC .","In an order of DATE an investigating judge at the GPE tribunal de grande instance committed the applicant for trial in FAC on counts of rape classified as a repeat offence , unauthorised entry into the country following expulsion and illegal entry or residence by a foreign national in GPE .","On DATE ORG found him guilty as charged and sentenced him to DATE imprisonment . On DATE ORG ruled on the civil claims and awarded the victim , who had joined the proceedings as a civil party , the sum of MONEY ( ORG ) in damages . The prosecution was represented by B.","Both the applicant and the prosecution appealed .","On DATE ORG assigned the appeal to ORG . The prosecution was once again represented by B.","The hearing before ORG took place on CARDINAL and DATE .","On DATE the hearing was adjourned for the first time TIME and TIME When it resumed , the President of ORG ordered the photograph album in the case file to be shown to the parties , the jury and the other judges , then announced the questions the court and the jury would have to answer . Counsel for the accused objected to the wording proposed . The President called the civil party , the advocate - general , the defence and the accused , and the court then withdrew to deliberate . The hearing resumed at TIME for the applicant then filed submissions requesting that the court take formal note that unlawful communication within the meaning of Article CARDINAL of LAW had taken place between certain members of the jury and the advocate - general during the adjournment when the court had withdrawn to deliberate , leaving the jury in the courtroom . The President heard evidence from the applicant 's and the civil party 's lawyers , the advocate - general and the accused . The court , composed in this instance of only the judges , withdrew to deliberate and then delivered the following judgment :","\u201c The ORG , having deliberated without the jury 's assistance ,","Having regard to the conclusions submitted by PERSON , counsel to PERSON ;","Having regard to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ,","Considering that , as the judges composing the court were not personally in a position to confirm what may have happened in their absence , the court can not put it on the record ;","Further considering that the evidence adduced and discussed inter partes has revealed no violation of the provisions of LAW ... \u201d","In a judgment of DATE ORG sentenced the applicant to DATE imprisonment and DATE social and judicial guidance , with the obligation to undergo treatment and not to approach the victim , her mother or her brother . Ruling on the civil claims , it ordered the applicant to pay the victim ORG CARDINAL,CARDINAL in respect of damage suffered prior to DATE and ORG CARDINAL,CARDINAL in respect of damage suffered thereafter .","NORP In a subsequent appeal on points of law the applicant relied on LAW , asserting that it imposed \u201c an obligation on every national court to check whether , as constituted , it is ' an impartial tribunal ' within the meaning of that provision where , as in the instant case , this is disputed on a ground that does not immediately appear to be devoid of merit \u201d , and that \u201c in refusing the defence 's request for a formal note to be made in the record that certain jurors had communicated with the advocate - general during an adjournment , without ordering an investigation to establish the facts and , if appropriate , taking the action requested by the defence \u201d ORG had infringed the provisions of that Article .","On DATE ORG dismissed the appeal on points of law , holding , inter alia :","\u201c The record of the proceedings states that the accused 's lawyer filed submissions requesting formal note to be taken that unlawful communication , within the meaning of LAW , had taken place between certain jurors and the advocate - general while the court was adjourned .","The ORG refused that request on the grounds that it could not make a record of things alleged to have happened in its absence , and the evidence adduced and discussed inter partes had revealed no violation of the provisions of the above - mentioned Article CARDINAL .","That being so , there was no ground for appeal .","On the one hand the judges composing the court were not personally in a position to confirm what may have happened in their absence .","On the other hand , considering that the evidence adduced and discussed inter partes had revealed no violation of the provisions of LAW , the court used its unfettered discretion without infringing the provisions of the law or the convention on which the accused relied .","It follows that the ground of appeal can not be accepted . ... \u201d","The relevant provisions of LAW provide :","\u201c The trial jury shall be formed of CARDINAL jurors when ORG rules at first instance and CARDINAL jurors when it rules on appeal .","The court shall make a ruling ordering , before the drawing of the list of jurors and separately from it , the drawing by lot of CARDINAL or more additional jurors who shall attend the hearing .","Where CARDINAL or more of the CARDINAL jurors are prevented from following the hearing up to the delivery of ORG judgment , they shall be replaced by the additional jurors .","The replacement shall be made in the order in which the additional jurors were drawn by lot . \u201d","\u201c The president shall give the following address to the jurors while they stand bare - headed : ' You shall swear and promise to examine with the most scrupulous attention the charges which will be brought against ... ; to betray neither the interests of the accused nor those of society which accuses him , nor those of the victim ; to refrain from communicating with anyone until after your finding ; to heed neither hatred nor malice , nor fear nor affection ; to remember that the accused is presumed innocent and that he has the benefit of the doubt ; to decide according to the charges and defence arguments following your conscience and your innermost conviction , with the impartiality and resolution that befit a free man of integrity , and to preserve the secrecy of deliberations , even after the end of your service . '","Each juror being called individually by the president shall answer , raising his hand : ' I swear it ' . \u201d","Where an event likely to infringe the rights of CARDINAL of the parties occurs during the trial , the party concerned may ask ORG - composed in this instance of only the judges - to \u201c take formal note \u201d of it . This is the party 's only means of having it recorded . ORG can not entertain complaints that have been raised if no application was made to ORG to take formal note of them and they were not entered in the record of the trial ( Court of Cassation , ORG , CARDINAL DATE , ORG . crim . ) no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; DATE , PERSON DATE , p. CARDINAL ) .","ORG may refuse to take formal note of events that are alleged to have occurred outside the hearing . It has full discretion to decide whether or not to order an inquiry to establish the facts ( Court of Cassation , DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . DATE ) . In a judgment of DATE , however , ORG held that the content of the impugned judgment should enable it to assess whether the impugned communication was such as to influence the jurors ' opinion ( Court of Cassation , ORG , DATE , PERSON DATE , p. CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5470","languageisocode":"ENG","respondent":"NOR","branch":"ADMISSIBILITY","date":2000,"docname":"THUNES v. NORWAY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant is a NORP citizen , born in DATE and resident at Fyllingsdalen . Before the ORG he is represented by PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Attorney , Office of the Attorney ORG ) , as Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant and W were arrested on suspicion of having handled QUANTITY of salmon stolen by J. ( on DATE ) . On DATE the police searched the premises of the company owned by the applicant and PERSON and detained them on remand . They both confessed to the offence on DATE and DATE respectively . The applicant also confessed to having been in possession of narcotic tablets . Both suspects were then released .","When the applicant was later convicted , it was established that he had supplied the narcotics to J. The latter had requested the drugs to calm him down before committing the theft which the applicant had instigated and planned . The applicant did not appeal against this part of ORG judgment .","On DATE J. was convicted of the theft committed on DATE .","In the meantime , on DATE and CARDINAL DATE , the police interrogated the applicant as a suspect with respect to certain offences related , inter alia , to the book - keeping of his and PERSON \u2019s company . The applicant confessed to these offences on DATE . PERSON had made a confession earlier on CARDINAL DATE . In DATE and DATE the police heard CARDINAL further persons and obtained additional material from ORG ( fylkesskattekontoret ) .","On DATE the police interrogated the applicant as a suspect in relation to an illegal sale of alcoholic beverages carried out by H. On being further interrogated on DATE , the applicant also confessed to this offence . PERSON was apparently suspected of a different transaction concerning alcoholic beverages and it appears that he also confessed .","H. was convicted of the illegal sale of alcoholic beverages committed at DATE or at DATE .","On DATE ORG sent the case - files of the applicant and PERSON to ORG with an apology for the fact that no action had been taken for DATE due to a backlog of pending investigations and the priority given to other cases . ORG replied on DATE that the delay in question was unacceptable .","On DATE the applicant and PERSON were formally charged and summoned to appear before ORG ( forh\u00f8rsrett ) . After a hearing on DATE , the latter concluded that it did not have jurisdiction to determine the charges since the applicant \u2019s confession had not been without reservation . Under the particular procedure applying to summary proceedings before this court , an unreserved confession was a prerequisite for its jurisdiction .","On DATE the applicant and PERSON were summoned to appear before ORG ( byrett ) which heard the case from CARDINAL toCARDINAL DATE . The applicant pleaded guilty to the charges except for those related to the evasion of value added tax ( ORG ) and book keeping . By judgment of DATE , ORG acquitted the defendants of the charge concerning negligent book - keeping but convicted them of having handled stolen goods , of having been in possession of narcotic tablets , of having made use of and sold the alcoholic beverages illegally sold to them , and of having attempted to avoid paying ORG on their company 's transactions .","ORG rejected the GPE argument that LAW had been violated on account of the length of the proceedings . It observed that the period to be taken into consideration , which started with the GPE arrest in DATE and ended with the judgment in the instant case , amounted to DATE . Under any circumstances , the delay was too short to run counter to this provision . It was therefore not necessary to consider further the period of inactivity in question . However , in sentencing , the court held that considerable weight ( \u201c vesentlig vekt \u201d ) must be attached to the fact that the case had become old and that the accused could not be blamed for this . The time element must - the court reasoned - have caused prejudice to the defendants and the imposition of a sentence so long after the commission of the crime would be particularly burdensome , given their work and\/or social situation . ORG sentenced the applicant to CARDINAL months\u2019 imprisonment , of which DATE were suspended with CARDINAL years\u2019 probation . ( PERSON was sentenced to CARDINAL months\u2019 imprisonment , of which DATE were suspended with CARDINAL years\u2019 probation . )","Both the prosecution and the defence appealed to ORG ( lagmannsrett ) . The applicant appealed against the conviction on the VAT offence , invoking an error of law , and against the sentence , pleading that he was not guilty as described in the indictment . On DATE , after a hearing , ORG upheld the earlier conviction , having found aggravated circumstances relating to the ORG conviction . ORG rejected the defence \u2019s allegation of a violation of LAW , subscribing to ORG reasoning and conclusions , and referring to ORG case - law , notably the DATE decision mentioned CARDINAL paragraphs below . ORG , whilst recalling the aggravated nature of the ORG conviction , decided nevertheless , in view of the time element , not to increase the sentences imposed by ORG .","The applicant sought leave to appeal to ORG ( PERSON ) .","On DATE ORG of ORG ( kj\u00e6rem\u00e5lsutvalg ) refused the applicant leave to appeal against the sentence imposed . As regards the alleged violation of LAW , the ORG noted that ORG had taken the length of the proceedings into account in sentencing .","In a decision of DATE concerning , inter alia , the issue of sentencing in another case , ORG rejected a claim by a convicted appellant that the requirement of an effective remedy under LAW had not been met where the duration of the proceedings had been taken into account in sentencing . It did not accept his view that LAW required the court to decide whether the LAW had been violated . In the view of ORG , it would be sufficient if it appeared from the reasoning that the convicted person \u2019s submissions regarding the length of proceedings had been considered and had been taken into account in sentencing . The NORP rules on sentencing were so flexible that it would always be possible to have due regard to delays in the proceedings . Even for the most serious offence , it was possible to impose a suspended sentence or conditionally to postpone the issue of sentencing . In sentencing it was also possible to have regard to delays which were not serious enough to violate LAW . The distinction between relatively modest and very serious delays could not be defined precisely . For sentencing it was not important where exactly the limit was drawn . Normally , the matter would be considered as a whole on the basis of a variety of factors . Opinions would differ as to where to draw the limit . It was therefore of little interest , and even superfluous , to attempt to draw such limits when it did not affect the outcome ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57471","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1982,"docname":"CASE OF VAN DROOGENBROECK v. BELGIUM","importance":2,"conclusion":"Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;Just satisfaction reserved","judges":"C. Russo","text":["The applicant is a NORP national , born in DATE . He has no fixed occupation .","On DATE , the GPE criminal court ( tribunal correctionnel ) sentenced him to CARDINAL years\u2019 imprisonment for theft , and attempted theft , committed with the aid of skeleton keys . The court also ordered that he be \" placed at the Government \u2019s disposal \" for DATE , pursuant to section CARDINAL of ORG see paragraph CARDINAL below ) : it noted that Mr. PERSON was a recidivist ( LAW ) who had been sentenced by the GPE criminal court on DATE to CARDINAL years\u2019 imprisonment for aggravated theft and who manifested a persistent tendency to crime .","The applicant and the minist\u00e8re public ( public prosecuter \u2019s department ) appealed to ORG , which confirmed the first instance decision on DATE . It found that the placing at the ORG \u2019s disposal was justified by the danger to which society and Mr. PERSON himself would be exposed were he to be released on completion of his sentence ( door het gevaar dat , na afloop PERSON die tegen hem uitgesproken wordt , de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem CARDINAL zou doen lopen ) . An appeal by the applicant on a point of law was dismissed by ORG on DATE .","On the completion ( on DATE ) of his principal sentence , which he served at FAC prison , GPE , and then at GPE , Mr. PERSON did not remain in detention . It was true , according to the medical officer specialised in psychology ( m\u00e9decin - anthropologue ) at GPE prison , that he was incapable of self - criticism and had no sense of responsibility ( noch auto - kritiek , noch verantwoordelijkszin ) . Nevertheless , the Minister of ORG , acting on the advice of the prison governor and following a \" policy of securing as far as possible the rehabilitation of released prisoners \" , agreed to attempt to reintegrate him into society by placing him , as from DATE , in semi - custodial care ; this involved his working as an apprentice in a central - heating installation firm in GPE and attending intensive vocational training courses in a specialised institution on DATE .","The applicant disappeared , however , on DATE . DATE , on the instructions of the procureur g\u00e9n\u00e9ral ( public prosecuter ) attached to ORG , he was placed on the wanted list and , on DATE , he was arrested , pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft , and detained at ORG prison , GPE . On DATE , he was found not guilty by the GPE criminal court , but on DATE the Minister of ORG decided to send him to PERSON prison , in the block reserved for recidivists placed at the ORG \u2019s disposal ( te doen overbrengen QUANTITY recidivisten te PERSON ) ; this was because the ORG \u2019s individual ORG had expressed the opinion , on DATE , that the applicant had abused the opportunity offered to him , that he was totally untrustworthy and that a further period of detention was indicated ( dat ( hij ) werkelijk misbruik heeft gemaakt van de hem geboden kans , dat hij helemaal niet is te betrouwen en dat een nieuwe interneringsperiode gewittigd is ) .","On the strength of a favourable opinion from ORG ( see paragraph CARDINAL below ) , before which Mr. PERSON had appeared on DATE , the Minister of ORG decided on DATE to release him conditionally on DATE , since the firm mentioned above was prepared to re - engage him as a trainee heating technician .","The applicant disappeared again at DATE . He was arrested on DATE and brought before the GPE criminal court on a charge of aggravated theft , where he was sentenced on DATE to CARDINAL months\u2019 imprisonment . On DATE , on the expiration of this sentence , he was released as the Minister had agreed to make a further attempt at his reintegration into society , but at DATE the agency responsible for monitoring his rehabilitation lost trace of him . He was arrested on CARDINAL DATE and , until DATE , served a sentence of CARDINAL months\u2019 imprisonment for aggravated theft , imposed by the GPE criminal court on DATE ; thereafter he returned to PERSON prison pursuant to a detention decision ( te interneren ) taken by the Minister of ORG on DATE . He left prison on DATE : DATE previously and on the recommendation of ORG , the Minister had agreed to his conditional release ( te ontslaan ) , in the form of DATE renewable leave , with a view to rehabilitation in GPE .","Mr. PERSON accordingly went to GPE , accompanied by a member of the ORG committee , but the rehabilitation plan proved impracticable and he therefore returned to GPE . After different setbacks in hostels , he was obliged to live alone in GPE , without work and completely without resources . On DATE , the ORG , citing the risk of recidivism , proposed that \" steps be taken to detain \" the applicant at PERSON ; the Minister of ORG gave his consent on the following day . Thereupon , Mr. PERSON disappeared for the third time ; the authorities placed him on the wanted list , on account of his conduct . After hiding for DATE in the GPE and finding himself in dire financial straits , he gave himself up on DATE to the police attached to the parquet du procureur du PERSON ( public prosecuter \u2019s office ) in GPE . He was detained at once in ORG prison before being sent back to PERSON . On DATE , as he was unwilling to do the work offered to him , he was placed in the cell block rather than in the recidivists block .","On DATE , the applicant appeared at his request before ORG , which decided to re - examine his case in DATE . At its meeting on DATE , ORG found that he had saved nothing during his detention and that he had no prospects of finding work outside prison . It therefore declined to recommend his release unless and until he had saved CARDINAL BF through his prison work .","On DATE , the applicant was transferred from PERSON to PERSON prison .","On CARDINAL DATE , Mr. PERSON , relying on section CARDINAL of the Act of DATE ( see paragraph CARDINAL below ) , had filed with the procureur g\u00e9n\u00e9ral attached to ORG an application for release from the effects of the decision placing him at the ORG \u2019s disposal . ORG refused the application on DATE : after rejecting the arguments which he had based on Articles CARDINAL par . CARDINAL , CARDINAL par . CARDINAL , CARDINAL par . CARDINAL and CARDINAL par . CARDINAL of the Convention ( article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article DATE ) , the ORG found that each time the applicant had been released , he had yielded to impulse and committed further offences ; it concluded from this that he remained asocial ( zodat hij asociaal blijft ) . On DATE , his appeal on a point of law was held by ORG to be inadmissible on the ground that he was no longer entitled to contest before that ORG - as he had attempted to do by pleading the Convention - the validity of the decision complained of , that decision having been final since DATE .","On DATE , the applicant lodged with the PERSON procureur du Roi a complaint of arbitrary detention and , in the alternative , of abuse of authority ( abus de pouvoir ) . He pointed out that since DATE the balance on his account had been CARDINAL BF ; in addition , he alleged that ORG , not being mentioned in LAW DATE , was \" unlawful \" and he accused the Minister of transforming his sentence into CARDINAL of \" forced labour \" . On DATE , the complaint was set aside as requiring no further action .","On DATE , Mr. PERSON appeared again before the above - mentioned ORG . Noting that he had by then saved CARDINAL BF and had been detained for long enough ( lang genoeg ) , the ORG recommended , \" without much enthusiasm \" ( zonder veel enthousiasme ) , that he be released ( te ontslaan ) . Accordingly , on DATE , the Minister of ORG granted him DATE renewable leave , to be preceded by DATE period of semi - custodial care during which he was to be accommodated at TIME in FAC prison ( GPE ) but was to work outside the prison during the TIME . However , he disappeared on DATE after DATE out and was at once placed on the wanted list for return to the recidivists block at PERSON .","On DATE , Mr. PERSON was caught in the act of stealing in GPE and arrested . On DATE , he was sentenced to DATE imprisonment by the PERSON criminal court and , on completing that sentence on DATE , was sent back to PERSON . ORG had found , on DATE , that the applicant \u2019s return to detention did not require a fresh ORG decision since he had evaded detention on DATE ( aangezien betrokkene zich op CARDINAL . CARDINAL . QUANTITY onttrokken aan zijn internering , is geen ministeri\u00eble beslissing nodig om hem opnieuw te interneren ) .","The case was re - examined by ORG on DATE , but the matter was adjourned until DATE . On DATE , ORG pointed out that , on account of his systematic refusal to work , Mr. PERSON had saved CARDINAL BF and it therefore proposed that he not be granted renewable leave until he had saved CARDINAL BF . On DATE , the Minister gave instructions to that effect ; he also stipulated that the applicant \u2019s release should be subject to a series of condition similar to those previously laid down by the Minister , namely submitting to the \" guidance \" of ORG , working regularly , not changing employer or address without that ORG \u2019s consent , refraining from excessive consumption of alcohol and not associating with former criminals . It proved impossible to implement this decision , since Mr. PERSON failed to satisfy any of the conditions attached thereto . On DATE , he appeared once more before ORG , which confirmed the advice it had tendered on DATE .","On DATE , the applicant lodged with the procureur g\u00e9n\u00e9ral attached to ORG a second application based on section CARDINAL of the Act of DATE ( see paragraph CARDINAL below ) . This application was granted on DATE : after considering the submissions to the contrary on the part of the minist\u00e8re public and although the ORG rejected , as in DATE , the arguments based on the Convention , it held that there were by then reasons for releasing Mr. PERSON from the effects of the decision placing him at the ORG \u2019s disposal . He was set free on DATE , but shortly afterwards was again deprived of his liberty , the GPE criminal court and ORG having sentenced him on DATE and DATE to DATE and to DATE imprisonment for aggravated theft , though without applying to him FAC .","The placing of recidivists and habitual offenders at the Government \u2019s disposal was substituted for the placing under special police supervision that had been provided for in LAW of DATE ; it was introduced by LAW of DATE and is DATE the subject of sections CARDINAL to CARDINAL ( LAW ) of ORG in respect of ORG and Habitual Offenders Act of DATE ( \" the DATE LAW ) .","According to NORP case - law , being placed at the ORG \u2019s disposal is to be classified as a penalty and not as a security measure ; this has various consequences in law ( Court of Cassation , DATE , ORG , I , pp . CARDINAL - CARDINAL ; CARDINAL DATE , ibid . DATE , I , pp . CARDINAL ; DATE , ibid . DATE , I , p. CARDINAL ) . Under sections CARDINAL and CARDINAL of the DATE Act , the placing at the Government \u2019s disposal is added on to a principal penalty involving deprivation of liberty imposed at the same time , becomes operative on the expiration of that penalty and applies for a period fixed by the LAW , namely DATE , DATE , or from DATE , according to the nature of the case .","A person who has committed one indictable offence ( crime ) after another must be placed at the Government \u2019s disposal ( section CARDINAL ) , whereas in other cases - such as the applicant \u2019s - it is a matter for the court \u2019s discretion ( section CARDINAL ) : the latter rule applies where a non - indictable offence ( d\u00e9lit ) has followed an indictable or a non - indictable offence ( Articles CARDINAL and CARDINAL of LAW ) , where an indictable offence has followed a non - indictable offence and to the case of \" anyone who , having committed in DATE CARDINAL offences each involving a penalty of imprisonment for a non - indictable offence ( emprisonnement correctionnel ) of DATE , is shown to manifest a persistent tendency to crime \" . In the latter cases , \" particulars of the proceedings in respect of the offences which cause the individual concerned to be classified as a recidivist have to be included in the current prosecution file \" and the court concerned must give \" specific and precise \" reasons for ordering the penalty in question ( section CARDINAL and Court of Cassation , DATE , Pasicrisie DATE , I , pp . CARDINAL - CARDINAL ) .","If a recidivist is sentenced to a further principal penalty of imprisonment , the effects of any prior order placing him at the Government \u2019s disposal are suspended until that sentence has been served . Such was the result , in the present case , of the judgments of DATE , CARDINAL DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) . The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the ORG \u2019s disposal , the latter penalty to be served after the expiry of the first order , but as regards Mr. PERSON this course was not followed by the GPE , GPE and GPE criminal courts or ORG in DATE , DATE , DATE and DATE ( see paragraphs CARDINAL , CARDINAL and DATE above ) .","According to ORG , the penalty of being placed at the ORG \u2019s disposal - which can be the subject of a full appeal or of an appeal to ORG on a point of law - and the principal penalty form an \" inseparable whole \" and the former penalty , like the latter , constitutes a deprivation of liberty ( DATE , Pasicrisie DATE , I , pp . CARDINAL - CARDINAL ; CARDINAL DATE , ibid . DATE , I , pp . CARDINAL ; DATE , ibid . DATE , I , pp . CARDINAL - CARDINAL ; CARDINAL DATE , ibid . DATE , I , pp . MONEY , DATE , ibid . DATE , I , p. CARDINAL ; DATE , ibid . DATE , I , p. CARDINAL ) . Under section CARDINAL of LAW , \" recidivists and habitual offenders who are at the Government \u2019s disposal shall , if necessary , be detained in an establishment specified by LAW \" - in the instant case the establishment being PERSON , which had been designated for males not suffering from any mental illness ( Royal Decree of DATE ) .","As is indicated by the phrase \" if necessary \" , the LAW confers on the Government - here , the Minister of ORG - a wide measure of discretion in deciding how the penalty shall be implemented , the choice lying between detention , semi - custodial care , and remaining at liberty under supervision or on probation . The Minister may conditionally release the person concerned either at the end of the principal sentence - failing which he will be detained - or during the course of detention ; he may also revoke conditional release at a later date .","The Minister of ORG takes various decisions in accordance with a procedure which is laid down , in part , by Ministrial Decrees . Conditional release usually occurs :","- whilst the principal penalty is being served , on a report from the \" medical officer specialised in psychology \" and the governor of the establishment where the convicted person is held ( see paragraph CARDINAL above ) ;","- during detention , on a recommendation by ORG ( see paragraph CARDINAL , DATE and DATE above and paragraph CARDINAL below ) .","A decision to revoke conditional release ( see paragraph CARDINAL , DATE , DATE and DATE above ) is generally taken by the Minister in the light of a report from the officer responsible for the \" guidance \" of the person concerned , or of an recommendation by the procureur g\u00e9n\u00e9ral attached to ORG within whose district the placing at the ORG \u2019s disposal was ordered . These reports and recommendations will cover the manner in which the person in question is observing the prescribed conditions , his means of subsistence , his work , his conduct and the risk of recidivism on his part . If , however , he is in the process of serving a further sentence of imprisonment , revocation is normally based on reports from the \" medical officer specialised in psychology \" and the governor of the establishment ; these reports will contain information on the nature of the offences for which the sentence was imposed , the offender \u2019s criminal record , his personality , his moral character , his family and occupational situation and his future prospects .","ORG for Recidivists who have been placed at the Government \u2019s Disposal and are in Detention ( \" ORG \" ) was established by a Ministerial Decree of DATE which was modified and supplemented on CARDINAL DATE and DATE . ORG is composed of a judge or retired judge , who acts as chairman , the medical director or retired medical director of ORG ) and a senior official of ORG . A representative of ORG attends meeting of ORG and ORG or ORG may be invited to send a representative - who is entitled to speak and vote ( Decree of DATE ) - to those meetings at which ORG is to discuss the position of detainees who have been or are to be placed under their supervision .","ORG is convened by its chairman at least once DATE . It is required to supply the Minister of Justice with an opinion - which is not binding - \" on the advisability of releasing recidivists and habitual offenders who are in detention ... and on the conditions \" which should be attached to their release .","Offenders may apply to appear before the ORG either at the meeting before the expiry of DATE of their detention , if it began as soon as they has finished serving their principal sentence , or at the first meeting held after their return to detention , in cases where the Minister has revoked a decision granting conditional release ( see paragraph CARDINAL above ) . They will be heard again at the meeting before the expiry of DATE of their detention , if it DATE , fixed by ORG ( see paragraph CARDINAL , DATE , DATE , DATE and DATE above ) .","Although the texts are silent on the point , a detainee will be heard without the assistance of a lawyer and without being able to inspect the prison file which contains , inter alia , the results of the social enquiry . The ORG \u2019s Secretary will communicate to him at once the opinion adopted by ORG at the end of its discussions . If the opinion is favourable , the matter will be referred to the Minister for decision . The Minister may also give directions for release at any time , without consulting ORG in advance .","The governors of the establishments involved inform the persons concerned of Ministerial decisions that they be released . Such decisions will be subject to conditions which will be recorded in a booklet and will always include an obligation to submit to supervision arranged by ORG or ORG .","Under section CARDINAL of LAW , individuals placed at the ORG \u2019s disposal pursuant to sections CARDINAL and CARDINAL may apply to the procureur g\u00e9n\u00e9ral attached to ORG within whose district the decision was rendered to be released \" from the effects of the decision \" . If , as in the present case , the offender has been placed at the ORG \u2019s disposal for not DATE , such an application \" can be made DATE after completion of the [ principal ] sentence \" ( see paragraph CARDINAL above ) and , thereafter , \" DATE \" ( see paragraph CARDINAL above ) ; these periods are increased to DATE \" in the other cases \" . The procureur g\u00e9n\u00e9ral \" shall make such enquiries as he sees fit , add the results to the case - file and lay it , with his submissions , before a criminal chamber of ORG ; the ORG shall give a reasoned judgment after hearing the person concerned , who shall have the assistance of a lawyer \" .","The practice followed in implementing the Acts of DATE and DATE has developed considerably over DATE . Initially , offenders were not released until after a period of detention which varied according to the categories in which they ware placed . DATE , on the other hand , where it is the first time that the measure has been ordered and the individual is not very dangerous , the authorities\u2019 general rule is to release him on trial once the principal sentence has been served , subject to detaining him if he commits another offence or fails to observe CARDINAL of the prescribed conditions and is out of work and without means of subsistence . Moreover , detention for a long period is now exceptional : according to the Government , the offender will in practice be conditionally released - unless there is a serious danger to society - as soon as there is a real possibility of rehabilitation .","According to ORG DATE and CARDINAL of ORG ( Royal Decree of DATE ) , read in conjunction with Article CARDINAL , persons sentenced to a penalty for a non - indictable offence ( peine correctionnelle ) and then detained pursuant to section CARDINAL of LAW , as was Mr. PERSON , may be required to do prison work .","The ORG maintained that several remedies were available to the applicant :","( i ) instituting or causing to be instituted a prosecution for arbitrary detention ;","( ii ) referring to ORG any dispute between himself and the minist\u00e8re public regarding the execution of the judgment of DATE ;","( iii ) applying to that ORG for release from the effects of the measure imposed on him ;","( iv ) applying to the President of the court of first instance in his capacity of juge des r\u00e9f\u00e9r\u00e9s ( judge hearing urgent applications ) ;","( v ) bringing an action based directly on LAW . CARDINAL ( article DATE ) of the Convention .","On the third point , the ORG refers to paragraphs CARDINAL , DATE and DATE above , and , on the fifth , to paragraph CARDINAL below .","As regards the first point , anyone who maintains that he has been unlawfully deprived of his liberty , either by a private individual or by a public official , is entitled under NORP law either to file a complaint , with or without the joinder of a claim for damages ( constitution de partie civile ) , or to bring the matter before a criminal court by means of a direct summons ( ORG and CARDINAL to CARDINAL of the Criminal Code ; ORG CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ; see paragraph CARDINAL above ) .","As regards the second point , ORG held , in DATE and DATE that disputes between the minist\u00e8re public and a convicted person regarding the execution of a sentence could be referred to the court which passed it , but these are isolated decisions which have not been confirmed by other judgments .","As regards the fourth remedy mentioned above , the ORG confines itself for the moment to noting that under LAW and CARDINAL of the CARDINAL Judicial Code it falls to the President of the court of first instance to give a ruling , in the capacity of juge des r\u00e9f\u00e9r\u00e9s - that is to say , on a \" provisional \" basis , if the matter is urgent , and without prejudice to the \" merits \" - , if so requested by anyone claiming to be the victim of , for example , an administrative act constituting a \" voie de fait \" ( manifest illegality ) . This remedy is available \" in all matters , except those which are excluded by law from the competence of the courts \" . The case - law cited by the Government in this connection is analysed at paragraph CARDINAL below ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":["4","5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70162","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2005,"docname":"CASE OF DIZMAN v. TURKEY","importance":3,"conclusion":"No Violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in the town of GPE , within the administrative jurisdiction of the province of GPE .","The facts surrounding the events of DATE are disputed by the parties .","The facts as presented by the applicant are set out in Part B below ( see paragraphs CARDINAL ) . The Government \u2019s submissions concerning the facts are summarised in Part C below ( see paragraphs CARDINAL - CARDINAL ) . GPE evidence submitted by the applicant and the Government is summarised in Part D ( see paragraphs DATE below ) and Part E ( see paragraphs CARDINAL - CARDINAL below ) respectively .","On DATE PERSON and PERSON were killed in GPE . They were , respectively , district leader and administrative board member of HADEP ( PERSON , ORG ) , a pro - NORP political party . The applicant witnessed the killing and attended the funeral on DATE .","On DATE , at TIME , while the applicant was sitting in FAC in the Mutlu neighbourhood in GPE , QUANTITY persons , who later identified themselves as policemen , entered the caf\u00e9 . Both were from the anti - terrorism branch of the police and both were armed with pistols . They told the applicant to come out of the caf\u00e9 . On leaving the caf\u00e9 the applicant was put in a white ORG car , with the registration number CARDINAL ORG CARDINAL .","There were CARDINAL other police officers inside the car , both armed with MP-CARDINAL automatic weapons . The applicant \u2019s elder brother PERSON , who was also in the caf\u00e9 , asked the police officers why they were taking his brother away . The police told him that they wanted to ask his brother a number of questions and they would then return him to the caf\u00e9 .","The car drove in the direction of Kabaktepe and stopped in a deserted field . The applicant was taken out of the car . As soon as he got out , the police officers started to punch and kick him and to beat him with the butts of their guns . The police officers told the applicant that they had seen him at the funeral of PERSON and PERSON DATE before . They threatened him and told him that if he continued to be involved in such activities , his end would be like those of the dead HADEP members .","NORP The police officers questioned the applicant about a number of local people . The applicant was also forced to report the activities of local shopkeepers , who were allegedly selling the newspaper PERSON , a pro - NORP newspaper , and who were collecting money , presumably for ORG ( hereinafter \u201c the ORG \u201d ) . The applicant was threatened that if he did not report the political activities of these shopkeepers regularly , he would be killed .","The applicant denied that he was involved in such activities and protested that they had no reason to treat him like a criminal . He was then put into the car and driven towards the town . Before releasing him , the officers gave the applicant an address and ordered him to be there on the following DATE TIME .","When the applicant got home , his relatives took him to the hospital where it was established that his jaw bone had been broken and required surgery .","The applicant , with the assistance of a lawyer , submitted a petition to ORG office on DATE and requested the Prosecutor to initiate criminal proceedings against the police officers who had ill - treated him . He gave a detailed account of the incident and described the physical features of the police officers in question . The applicant asked the Prosecutor to send him to ORG to obtain a medical report which could be used as evidence in the criminal proceedings .","NORP The report was obtained from ORG on DATE ( for content see paragraph CARDINAL below ) .","NORP The applicant received no replies from the Prosecutor .","A medical report was issued by ORG on DATE according to which the applicant was unable to work for DATE .","The applicant made an application to ORG on DATE . On DATE ORG commenced an investigation into the applicant \u2019s allegations of ill - treatment under file no . CARDINAL\/CARDINAL .","The following information appears from the documents submitted by the applicant .","On DATE the applicant submitted a petition to the ORG \u2019s office in GPE . The contents of this petition formed the basis of his submissions under Part B above ( see paragraphs CARDINAL ) . He also informed the Prosecutor that he had been taken to hospital after having been released by the police . It had been established at the hospital that his jaw had been broken and required surgery . The applicant submitted the x - rays to the Prosecutor and told him that he wanted to press charges against the police officers . He finally asked the Prosecutor to be sent to ORG .","On DATE the applicant submitted another petition to the ORG \u2019s office in GPE and repeated the contents of his previous petition . He also described the physical features of the police officers in this petition .","According to a medical report prepared by ORG in GPE , the applicant \u2019s left jawbone had been broken . The report was based on an examination of the applicant as well as of x - rays . The report concluded that the fracture did not constitute a danger to life but would prevent the applicant from working for DATE .","The following information appears from the documents submitted by the Government .","It appears from this decision that ORG , after having received the applicant \u2019s petitions , had decided on an unspecified date that he lacked jurisdiction to prosecute the police officers and had forwarded the investigation file to ORG in order to obtain an authorisation to prosecute the police officers .","On DATE ORG , which was presided over by the deputy Governor of ORG and consisted of CARDINAL civil servants , found that there was insufficient evidence to open an investigation and decided to decline authorisation for the prosecution of PERSON , PERSON , PERSON and PERSON , police officers who worked for the anti - terrorism branch of ORG who had allegedly intimidated and ill - treated the applicant on DATE .","The Administrative Council based its decision on the fact that the applicant , who claimed to have been ill - treated on DATE , had not asked for his transfer to ORG until DATE . It appears from this decision that the investigation file had been forwarded to ORG by ORG of ORG , together with a letter drawn up by that department on DATE .","On DATE ORG of the ORG decided not to impose any disciplinary measures on the police officers due to a lack of evidence establishing that they had committed the acts complained of . In this decision the applicant was reported as having stated that he had been beaten up by the police officers and that he had been given a medical report showing that he was unable to work for DATE . The applicant had no complaints against anyone . The applicant \u2019s brother apparently told ORG that his brother had been taken away from the caf\u00e9 by the CARDINAL officers but that he also did not have any complaints against anyone .","In the decision of the disciplinary board , PERSON , CARDINAL of the QUANTITY police officers , was reported as having stated that he and his colleagues had carried out an identity check in the caf\u00e9 during which they were suspicious about the applicant . They had asked him a number of questions in the caf\u00e9 and left . They had not beaten him up . The remaining QUANTITY police officers apparently confirmed the statement given by PERSON .","On DATE ORG quashed ORG decision declining authorisation for the prosecution of the QUANTITY police officers in so far as it concerned the offence of ill - treatment and upheld the decision not to grant authorisation to prosecute them for the allegation of intimidation . ORG further held that the QUANTITY police officers should be tried before ORG . According to ORG , the medical report proved that the applicant had been ill - treated by the QUANTITY police officers as alleged .","NORP The decision of ORG was forwarded to ORG office on DATE . On DATE ORG forwarded the decision to ORG and asked that court to take the necessary action .","On DATE a preliminary hearing was held before ORG of ORG ( hereinafter \u201c the trial court \u201d ) . The court decided to summons the defendants for the next hearing on DATE and further decided to obtain the GPE identity cards and documents showing their criminal records .","On DATE ORG sent a letter to ORG ( hereinafter \u201c the Directorate \u201d ) and informed the Directorate of the decisions referred to above . The ORG added that the criminal proceedings were pending before the trial court under case - file no . ORG and that a hearing was scheduled for DATE . In this letter the Prosecutor referred to a letter sent by the ORG to his office on DATE and a reply sent by his office on DATE .","On DATE the trial court asked ORG to obtain the GPE identity cards before the hearing on DATE .","On DATE the ORG sent a letter to ORG and referred to the application lodged by the applicant with the Commission . The ORG informed ORG decisions referred to above and added that the criminal proceedings were pending before the trial court under case - file no . ORG . The ORG also referred to a letter sent by ORG on DATE and their reply of DATE .","On DATE the anti - terrorist branch forwarded to the trial court the identity document of CARDINAL of the defendants , PERSON .","On DATE the hearing resumed before the trial court . CARDINAL of the defendants , namely PERSON and PERSON , were present in the court room . According to postal receipts , the remaining CARDINAL defendants had also been summonsed .","Both PERSON and Mr PERSON told the trial court that they had gone to the caf\u00e9 on DATE in question and checked the identity card of the applicant . When they had established that he was not wanted by the authorities for any offence , they had returned the identity card to the applicant . They had not beaten him up . The defendants confirmed the accuracy of the statements they had made during the preliminary investigation .","The trial court , noting that all defendants except PERSON had since been posted elsewhere , decided to send letters rogatory to the courts in whose jurisdiction the CARDINAL absent defendants were living and asked those courts to take statements from them . The trial court also decided to send letters to ORG to ask for the birth registry records of the defendants . The trial court , noting that the applicant had \u201c inadvertently not been summonsed \u201d , decided to summons him for the next hearing on DATE .","On DATE ORG , acting on the letter rogatory from the trial court , took a statement from PERSON , CARDINAL of the CARDINAL defendants who had failed to attend the hearing before the trial court on DATE . PERSON told the court that neither he nor any of his colleagues had ill - treated the applicant . According to PERSON , the applicant had been a ORG member and it was for this reason that he had made the allegations of ill - treatment against the police .","On DATE ORG , also acting on the letter rogatory from the trial court , took a statement from PERSON , the fourth defendant . PERSON told the court that he did not remember the incident which , in any event , was just an allegation . He did not even know the applicant .","During the hearing that was held before the trial court on DATE , the applicant confirmed the accuracy of the contents of his statement taken at ORG previously . He further informed the trial court that he wanted to press charges against the defendants . The applicant \u2019s brother PERSON also confirmed the accuracy of the contents of his statement taken at ORG previously and added that the QUANTITY police officers had beaten up his brother and broken his jaw as a result .","The trial court adjourned the hearing until DATE on account of the failure of the ORG court to forward PERSON statement in time .","The hearings on DATE , DATE and DATE had to be postponed on account of the failure of the authorities to submit to the trial court the identity card of PERSON and the criminal records of PERSON .","DATE . At the hearing on DATE the prosecutor was given additional time until DATE to submit his observations .","A final hearing took place on DATE . The defendants did not attend this hearing . The ORG argued that , other than the applicant \u2019s statement , there was no evidence to prove the allegation of ill - treatment . Furthermore , the applicant had obtained the medical report DATE after the alleged event . The Prosecutor recommended to the trial court that the defendants be acquitted .","The trial court , noting that the defendants had \u201c vehemently denied the allegations \u201d against them and taking into account the \u201c fact that the medical report was issued DATE after the alleged events \u201d , concluded on DATE that there was insufficient evidence to prove that the applicant \u2019s injury had been caused by the defendants , and acquitted them .","According to postal receipts submitted by the Government , the decision of the trial court was communicated to the defendants in DATE .","The relevant domestic law and practice are set out in the judgment of GPE v. GPE ( [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VII ) ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["2"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61636","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2004,"docname":"CASE OF \u0130PEK v. TURKEY","importance":1,"conclusion":"Violation of Art. 2 on account of presumed deaths;Violation of Art. 2 on account of lack of effective investigation;Violation of Art. 3;Violation of Art. 5;Violation of P1-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Failure to fulfil obligations under Art. 38-1-a;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and is at present living in GPE , GPE . At the time of the events giving rise to his application , the applicant was living in GPE in NORP ) hamlet attached to NORP village in the ORG district of the province of ORG . The application concerns the alleged unacknowledged detention and subsequent disappearance of the applicant 's CARDINAL sons , PERSON and PERSON , in the course of an operation conducted by security forces in his village on DATE . It further pertains to the alleged destruction of his family home and property by the security forces during the same operation .","The facts surrounding the disappearance of the applicant 's CARDINAL sons and the alleged destruction of his family home and property are disputed between the parties .","The facts as presented by the applicant are set out in LAW below . The facts presented by the ORG are contained in LAW .","A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by ORG at hearings conducted in GPE is summarised in Part C.","On DATE the applicant and his son PERSON were tending their sheep away from the village of GPE when soldiers approached them and asked them for identification . After being shown identification , the soldiers went on their way . The applicant 's other son , PERSON , had good relations with soldiers from ORG and had even made tea for them on occasions .","On DATE at TIME the applicant , together with his son PERSON , was bringing his sheep back to their hamlet near GPE village , when a group of CARDINAL soldiers in uniform raided the village . The soldiers left their vehicles outside the hamlet and entered it on foot . They were armed with G-CARDINAL rifles and other weapons . A military helicopter circled above the hamlet . The applicant has since learned that the soldiers were not from ORG , but from around Bolu . The ORG soldiers had told the applicant previously to be wary of the soldiers from Bolu .","The soldiers told the applicant and PERSON to gather with the other villagers , that is , men , women and boys \u2013the young girls were told to remain in the hamlet DATE by the local school , which is located outside the hamlet . The houses in the hamlet can not be seen from the school . CARDINAL group of soldiers remained by the school ; the other group went into the hamlet .","The applicant saw flames rising from the village and his hamlet , and the women and children began to weep . The soldiers who were with them threatened them , saying : \u201c If you start crying , we will burn you just like your houses \u201d . All the villagers then fell quiet .","Both the applicant 's and his brother 's houses were completely destroyed by fire . After most of the houses had been destroyed , the soldiers released the villagers . But they did not release the applicant 's sons PERSON and PERSON , or FAC , LOC , ORG and PERSON . These men went with the soldiers in order to carry the latter 's equipment to their vehicles .","When the applicant returned to the hamlet , he saw that the houses were in flames . The young girls told him and the other villagers that the soldiers had thrown some white powder into the houses and had set them alight . The fires were so far advanced that there was nothing the applicant could do .","NORP Since a few of the houses had not caught fire , the applicant and the other villagers thought they could shelter in them .","At TIME , the same soldiers raided the hamlet again . They asked why some of the houses had not been burned . When the applicant and the other villagers replied : \u201c we did not put them out , you could not have lit them properly \u201d , the soldiers said : \u201c we shall burn them now \u201d , and they burned the remaining houses . The applicant has since learned that the villages of GPE and PERSON were also burned down DATE .","The applicant 's wife PERSON then asked the soldiers , in NORP , about what had happened to her sons PERSON and PERSON . The soldiers could not understand NORP , and asked what she had said . When the applicant explained that she was asking about her sons , the soldiers replied that they were in ORG and that they would be released soon .","After this second burning , the soldiers waited in the village , and only left in the direction of ORG in the TIME .","NORP Since his own house had been burned , the applicant with his wife PERSON , his son PERSON , and PERSON , the wife of his son PERSON , moved to a house which had been evacuated DATE previously in the hamlet of GPE , also attached to NORP village . All they had left were the clothes they were wearing . Neighbours gave them a few more clothes . They remained there , in abject poverty , for DATE . The applicant has since moved to ORG . The Government have provided no aid or assistance to the applicant or his family ever since the time when his house was burned .","Abd\u00fclkerim , PERSON and PERSON , who had been taken into custody together with ORG and PERSON , were released DATE . They themselves did not speak to the applicant afterwards but informed him through a third person that they had been held together until TIME the first night with their eyes bound . At TIME they were separated from GPE and GPE \u0130pek and they never saw the CARDINAL brothers again . PERSON remained with GPE and PERSON . All CARDINAL have been missing ever since .","DATE after GPE and PERSON were taken into custody , and having heard nothing about their whereabouts , the applicant travelled to ORG . With the help of a relative , he applied to the office of ORG PERSON , hereafter PERSON ) chief public prosecutor . He also applied to the ORG public prosecutor 's office and the ORG gendarmerie command . The applicant was unable to obtain any information about his sons from any of these ORG authorities .","In the meantime , in a letter dated DATE , Mr \u0130brahim Erge , a senior colonel at the Chief of Staff in GPE , informed Mr \u015eakir PERSON that the security forces had not conducted any operation on DATE in the PERSON hamlet of GPE village attached to the ORG district and that his son PERSON had not been apprehended .","On DATE the applicant filed another petition with the ORG chief prosecutor in ORG , asking him to investigate what had happened to his sons . The applicant was not permitted to meet the prosecutor , but a plain - clothes policeman who was there looked at the records and told the applicant verbally that the individuals in question were not there .","The applicant 's other son , PERSON , sent CARDINAL or CARDINAL petitions to the Governor of ORG . He received CARDINAL replies consisting of denials that his brothers had ever been detained . He was so angry that he tore the letters up and disposed of the pieces .","On DATE the applicant went to ORG at the request of the latter . He was asked where his sons were . The applicant stated that they had been taken away by the ORG . The gendarmes accused him of lying , insisted that his sons had in fact been taken by the ORG , yelled at him , and asked him why he was complaining about ORG . Under duress the applicant was obliged to apply his thumbprint to documents prepared by the gendarmes , the contents of which were not made known to him .","No security operation was conducted in GPE village or in NORP hamlet on DATE . Neither the applicant 's sons nor any other persons had been taken into custody .","The applicant did file a petition with the ORG chief public prosecutor in ORG on DATE , stating that his sons PERSON and PERSON had been taken into custody and requesting the prosecutor to investigate his sons ' fate . The chief public prosecutor asked the security forces whether the applicant 's sons had been taken into custody for an offence falling within the jurisdiction of DGMs . The security forces informed the prosecutor that this was not the case and the applicant was informed of this outcome .","The applicant made no applications about the alleged disappearance of his sons to the offices of the ORG public prosecutor or to ORG . However , following the communication of the application to the Government , an ex officio investigation into the allegations was conducted by the ORG public prosecutor . However , it was not possible to locate the applicant at the address given by the applicant in his application form as submitted to the ORG . Moreover , the applicant was not known by the people living in the neighbourhood . His name was not registered in the registry of the head ( muhtar ) of the neighbourhood .","The Government further stated that no evidence has been found during the investigation to prove that the alleged offences had been committed by the security forces and that ORG ( ORG \u0130l\u00e7e PERSON ) had rendered a decision not to prosecute members of the security forces . It had not been possible to communicate this decision to the applicant as his address was not known to the authorities and the ORG Governor had therefore ordered the publication of the outcome of the investigation in a newspaper .","The Government finally stated that the applicant had been invited to ORG in order to make a statement as part of the administrative investigation in which ORG had been appointed as investigator .","On DATE the ORG Commander questioned the applicant in relation to his allegations and the applications he had filed with various authorities , including a certain \u201c ORG branch \u201d . The applicant repeated his allegations that his CARDINAL sons , GPE and GPE , along with the PERSON brothers had been taken away and that all the houses in his hamlet had been burned down by soldiers . The applicant further deposed that he had not applied to the \u201c NORP Human Rights Diyarbak\u0131r branch \u201d . Nor had he given any statement to the latter body or signed any document in respect of his allegations .","The following information appears from documents pertaining to the investigation carried out following the communication of the application to the respondent Government on DATE .","On DATE Mr PERSON , a deputy to the ORG Governor , informed Mr PERSON , in response to the allegations contained in his petition of DATE , that the security forces had not conducted any operation in the region on the dates mentioned in his petition , that his brothers were not on the list of persons wanted by the security forces and that the whereabouts of his brothers were not known to the authorities .","On DATE the ORG chief public prosecutor instructed the ORG police headquarters to summon the applicant to his office so that a statement could be taken from him . The address of the applicant recorded in this letter is the same as the one given in the application form with the exception of the name of the block of flats . According to the application form , the name of the block of flats was ' PERSON ' , but in the prosecutor 's letter the name was recorded as ' PERSON ' .","On CARDINAL DATE the ORG police informed the public prosecutor that there were no blocks of flats called PERSON in the street indicated by him . This letter went on to say that the applicant was not known by the people living in the neighbourhood and that his name was not registered in the registry of the head ( muhtar ) of the neighbourhood .","On CARDINAL DATE the commander of the ORG gendarmerie station , in whose jurisdiction GPE village was located , recorded in a report that PERSON and his family had left the village and had gone to the town of GPE near Hatay to work .","On CARDINAL DATE the ORG chief public prosecutor sent a copy of the letter he had received from ORG on DATE to the ORG chief public prosecutor and asked him to investigate the applicant 's allegations that his house had been burned down and that his sons had been taken away by the security forces .","On DATE the ORG chief public prosecutor sent a letter to the gendarmerie commander of ORG and instructed the latter to confirm whether or not an operation had been conducted in NORP village on DATE and whether ORG had been detained . He also asked the commander to find out the applicant 's address and to summon the applicant to his , i.e. the prosecutor 's , office .","On DATE the ORG prosecutor sent another letter to the ORG gendarmerie commander 's office and informed the latter that the name of the village was incorrectly recorded as ' Tural\u0131 ' which was within the jurisdiction of the town of PERSON . The prosecutor repeated his requests in his letter of DATE and asked the gendarmerie commander to look for the applicant in the village of ' PERSON ' .","On DATE the ORG gendarmerie commander replied to the prosecutor 's requests . The commander stated that the said persons had never been detained by his soldiers and that no operation had been conducted in the vicinity of GPE village at that time . The commander finally stated that the applicant had moved to the town of GPE in the province of NORP to work .","On DATE the ORG prosecutor took a decision of non - jurisdiction and sent the file to the office of the ORG district governor . This action was taken pursuant to the PERSON on the Prosecution of Civil Servants Memurin Muhakemat\u0131 GPE ) according to which authorisation must be sought in order to investigate the actions of members of the security forces .","On DATE the gendarmerie commander of ORG , in an apparent response to a request from the ORG governor 's office , appointed PERSON , a gendarmerie lieutenant - colonel , to investigate the applicant 's allegations .","On DATE the newly appointed Lieutenant- Colonel PERSON instructed the ORG gendarmerie commander to forward copies of the names and addresses of the military personnel who had been working in the area at the time of the incident . He further requested copies of all operation reports , operation logbooks , custody ledgers and any other relevant documents .","Also on CARDINAL DATE ORG instructed the GPE police headquarters to take a statement from one PERSON in respect of allegations of village destruction and disappearances . According to this letter , PERSON was born in DATE and living in GPE .","The GPE police headquarters forwarded a copy of the statement taken from PERSON on DATE and a copy of his identity card to ORG .","Abdulrezak \u0130pek stated in his statement that he did not even know where GPE was and that his children had not been taken away by soldiers . In fact , he did not have any children with those names . According to the copy of his identity card , PERSON was born on DATE .","On DATE the ORG gendarmerie commander replied to ORG requests and enclosed copies of CARDINAL pages of custody ledgers and copies of CARDINAL pages of operation logbooks in which the day - to - day activities of the ORG gendarmerie were recorded . The ORG commander further stated in his letter that his soldiers had not conducted an operation in GPE on DATE and that ORG had not been detained . The letter further states that Major PERSON had been ORG gendarmerie commander on DATE but he had since been posted to another town in central GPE . Sergeant - Major PERSON had been commander of the ORG gendarmerie station in whose jurisdiction GPE village was located . He had since been posted to a town in the west of the country .","Copies of the custody ledgers , which were enclosed with this letter , have been submitted to ORG . They do not contain the names of ORG or PERSON . A copy of the DATE activities logbook kept at the ORG gendarmerie station does not mention any operation planned , or conducted , at the relevant time .","On DATE Lieutenant - Colonel PERSON concluded his investigation report . He came to the conclusion that no operation had been conducted by security forces in NORP village on DATE and that the security forces had not even gone to that village on DATE . ORG further considered that the statement taken from PERSON in which the latter stated that he was not from GPE village and that his house had never been burned down or that his children had not been taken away , also proved that no operation had taken place . He recommended that authorisation to prosecute members of the security forces should not be granted as there was no evidence to prove that the alleged events had taken place . This report was forwarded to the ORG governor 's office on DATE .","On DATE ORG , under the presidency of the ORG Governor , decided on the basis of the information submitted by ORG not to grant authorisation for the prosecution of members of the security forces . This decision was appealed against ex officio pursuant to domestic law .","On DATE ORG ( PERSON ) , sitting as an appeal court , rejected the appeal and upheld the decision not to grant authorisation for the prosecution of members of the security forces . It had not been possible to communicate this decision to PERSON since his address was unknown to the authorities . Thus , the ORG Governor ordered the publication of this decision in a newspaper .","Finally , the applicant has submitted a letter dated DATE and signed by PERSON , the father of PERSON and the uncle of PERSON and PERSON who were allegedly taken from the village by soldiers and detained together with the applicant 's sons .","Mr PERSON , who also lived in the same village as the applicant , confirmed the applicant 's version of events and added that PERSON and PERSON had been released but that his son PERSON had not been released . He has not heard from his son LOC since the incident .","Mr PERSON made inquiries at various military establishments in the region and sent a telegram to the Chief of Staff of ORG in GPE ( ORG ) complaining about the disappearances in the course of the impugned events .","The Chief of Staff stated in his reply that no operation had taken place and that the persons referred to had not been detained .","The facts of the case being in dispute between the parties , the ORG conducted an investigation with the assistance of the parties . In this respect , CARDINAL delegates of the ORG took oral evidence DATE from CARDINAL witnesses . A further CARDINAL witnesses had been summoned but did not appear for various reasons . The evidence given by the witnesses may be summarised as follows .","The witness told the delegates that he had lived in the hamlet of LOC outside GPE village DATE and DATE when the \u201c Government destroyed the hamlet . \u201d CARDINAL families lived in the hamlet . The inhabitants were all in some way related . The applicant kept livestock and grew crops for his living .","The applicant stated that CARDINAL military raids had taken place on the hamlet on DATE . The first raid began TIME , at the time of the TIME prayer . The soldiers gathered all the inhabitants ( CARDINAL ) in front of the school , including the children . The village muhtar , with whom he enjoyed a good relationship , was not present . The men were separated from the women and children . When questioned by the Delegates , the applicant stated that the soldiers had collected the inhabitants ' identity documents . No names were called out . CARDINAL persons , including his sons , GPE and GPE , were led away by the soldiers . These persons were chosen at random ( \u201c You , you and you . \u201d ) and were made to carry the soldiers ' rucksacks . The soldiers returned the identity documents to the other inhabitants and then released them . During this time , the applicant could see that the hamlet had been set on fire . When he returned to the hamlet , he found that the houses , including his own house , belongings and livestock , had been burned .","The inhabitants started to salvage their property and belongings . However , at TIME , the soldiers returned and ordered everyone to evacuate the village . According to the applicant , an order was given to shoot the inhabitants if they tried to put out the flames . They were made to walk for a long time . During this time he could hear messages coming through on the soldiers ' walkie - talkies to halt the operation . They were threatened that they would be killed if they tried again to put the fires out . On being questioned at the hearing , the applicant affirmed that he could understand NORP . The applicant later mentioned in his evidence that other villages had been burned DATE , including GPE .","The applicant confirmed his belief during questioning that the raids were conducted by soldiers . He related that they were dressed as such , carried ORG or ORG rifles and used military vehicles and helicopters during the raids . The applicant stated that he had never seen any members of the ORG in the hamlet . While there may have been clashes between the ORG and the security forces away from the area , there had never been any clashes in his neighbourhood . He maintained that there had been no ORG members in the hamlet . When questioned , the applicant stated that ORG members may have come to the hamlet and may have been given food since the inhabitants were afraid of them . According to the applicant , there were no village guards in the hamlet , although the authorities had proposed that inhabitants set up a village - guard system .","The applicant further testified that the soldiers who carried out the raids were from Bolu . They were accompanied by soldiers from ORG . Soldiers from ORG had come to the area in the past to carry out checks . The applicant also affirmed that his sons ORG and PERSON had never been arrested by the security forces before the operation on DATE , and he could offer no explanation as to why they had been taken away . His son , ORG , had returned home from GPE DATE before the military operation to enjoy a rest . His other son , PERSON , worked as a shepherd .","As to his own enquiries concerning the whereabouts of his sons , the applicant stated that he had applied to the authorities in GPE , ORG , GPE and GPE , as well as to ORG in ORG . He deposed that , following the events of DATE , he had obtained from a soldier the name of the commander in charge of the operation , a Major PERSON . He had never disclosed that information to anyone before .","DATE . The witness had been married to PERSON for DATE at the relevant time . She stated that her husband had just returned to the hamlet from GPE where he had spent DATE . On TIME CARDINAL DATE her brother - in - law , PERSON , informed the family that the hamlet was full of soldiers . Everyone was forcibly made to assemble at the school outside the hamlet . In the meantime , the houses were set alight . The witness stated that the raid occurred at TIME and that the burning took place at TIME .","When the inhabitants were outside the school , the soldiers took their identity cards . CARDINAL people , including her husband GPE and her brother - in - law GPE , were picked out , apparently on account of their youth , and told to carry the soldiers ' gear to the military vehicles .","The remaining inhabitants were allowed to return to their houses at TIME However , with the exception of a few houses , everything had been burned down , including their family home and belongings . The soldiers returned to the hamlet again at TIME with orders to kill the inhabitants . ORG which had only partly been burned or where the flames had been extinguished were again set on fire . The inhabitants were all led away from the hamlet . The witness stated that she could make out from the radio communications between the soldiers that the order to kill them had been revoked . They were released at TIME but ordered not to stay in the hamlet . The witness went to live with her parents in ORG .","The witness had no doubts that the operation was carried out by NORP soldiers . She was unable to assess how many soldiers were involved . She testified that there were no members of the NORP living in the hamlet and that she had no recollection of ORG members ever having come to the hamlet for assistance . When questioned by the Delegates , the witness affirmed that neither her husband nor her brother - in - law had ever been in trouble with the authorities . The witness stated that she was never requested by the authorities to give a statement about the above events .","The witness is the applicant 's son and the brother of GPE and PERSON . He stated that the events under investigation had taken place on DATE when soldiers arrived in the village . He estimated that CARDINAL soldiers were involved in what he referred to as the \u201c general operation . \u201d The soldiers approached the hamlet on foot from FAC where they had left their military vehicles . They rounded up the inhabitants at the local school where they separated the men from the women . Everyone 's identity cards were taken . The soldiers picked out CARDINAL of the villagers including his brothers GPE and PERSON and the CARDINAL PERSON brothers to carry their rucksacks back to the vehicles . The witness affirmed that he saw these individuals being led away on foot towards the military vehicles and getting into the vehicles . The soldiers handed back the identity cards to the remaining villagers who went back to the hamlet only to find that the houses had been set alight . The witness stated that his family 's livestock and belongings had been destroyed . According to the witness , these events took place at TIME .","NORP Some villagers attempted to extinguish the flames . However , the soldiers returned CARDINAL or TIME with orders to kill them . The villagers were rounded up and taken away . However , an order came over the military radio not to fire on the villagers . They were allowed to return but were threatened with death if they tried to put out the fires .","When questioned by the Delegates the witness stated that there were no ORG members living in the hamlet or in the neighbouring village , and if any members visited they would be denied assistance since the inhabitants were afraid of reprisals from the authorities . Moreover , there were no guards in the hamlet - although the authorities had proposed the setting up of a village - guard system . The witness had no explanation as to why the hamlet had been destroyed and his brothers taken away . He did however refer to an incident in GPE village TIME away in which a number of soldiers were killed . The witness informed the Delegates that all the villages in the neighbouring region had been burned .","The witness stated that he and his father ( the applicant ) had made many attempts in writing to find out from the authorities about the fate of his missing brothers . They were consistently informed that GPE and GPE were not in detention . The witness stated that , out of anger , he tore up and threw away the replies which he had received from the regional governor . The witness told the Delegates that his father had been told the name of the commander of the operation by a soldier whom he had met in the PERSON neighbourhood . His father had written down the name .","DATE . The witness stated that he had been born in LOC hamlet . However , at DATE he was living in ORG . There were CARDINAL households in the hamlet and all the families were in some way related . He knew both GPE and GPE . The witness had returned to the hamlet DATE before the start of the military operation . He related to the Delegates that troops from Bolu and other areas had arrived in the vicinity on CARDINAL DATE and that there may have been CARDINAL of them involved in the operation . On DATE , all the villagers were made to assemble in a group in front of the local school while the soldiers , who had arrived in the hamlet on foot , burned down the houses . When questioned by the Delegates , the witness stated that CARDINAL soldiers stood guard around the inhabitants outside the school , and he estimated that there may have been CARDINAL , maybe even a CARDINAL , soldiers involved in the operation in the hamlet .","According to the witness , the school where everyone was grouped was QUANTITY away from the hamlet . He could see the fires burning in the hamlet . The villagers ' identity documents were taken by the soldiers and QUANTITY of them ( himself , PERSON , PERSON , PERSON , \u0130kram \u0130pek and PERSON ) were requested to carry the soldiers ' rucksacks up to their vehicles which had been parked on the hilly area around the village . When questioned , the witnessed stated that the military vehicles were not visible from the school . The witness told the Delegates that the soldiers commented that PERSON would be taken to ORG and conscripted into the army since he had evaded his military service . The witness estimated that the CARDINAL of them left with the soldiers TIME On their way to the military vehicles , he could see from a hill that smoke was rising again from the village . By the time they reached their destination , it was TIME . However , rather than being released , they were then taken in an open - top military vehicle to ORG along with CARDINAL soldiers . He could see smoke rising from the villages along the route to ORG . It was dark when they arrived there . They were made to get out of the vehicle and to lie face down . The witness remarked that many other persons arrived around this time . He estimated that CARDINAL persons were lying down in front of the establishment . Their identity cards were collected . The witness stated that he and CARDINAL others ( his brothers PERSON and NORP ) were taken to a custody room where they spent TIME . They were never ill - treated during this time . In TIME their identity documents were returned and they were told to leave . The last time that he saw GPE and GPE \u0130pek was when they were lying down after being taken from the military vehicle . The witness stated that when he arrived back in the hamlet , the houses had been burned .","The witness had no explanation as to why he and his CARDINAL brothers were released whereas the PERSON brothers and PERSON were kept in custody . When questioned , the witness deposed that the place to which they had all been taken was \u201c a large military place in Lice \u201d .","The witness had no doubt that the people who raided the hamlet were soldiers carrying G-CARDINALs . He had never heard of any ORG activity in or around the hamlet , and had no explanation as to why the hamlet had been burned ; nor had he ever heard of a Major PERSON .","The witness stated that he was from the same hamlet as the PERSON family . All the families living there were related . He had returned to the hamlet on DATE from ORG for a visit . Soldiers on foot raided the village QUANTITY DATE . He was certain that they were soldiers since they were carrying G-CARDINALs . A helicopter flew above the area . The soldiers arrived in the hamlet on foot . The inhabitants were all made to assemble at the school on the edge of the hamlet , men on CARDINAL side , women on the other . The soldiers took everyone 's identity documents . He could see the hamlet being burned . CARDINAL of them ( himself , PERSON , PERSON , PERSON , PERSON and PERSON ) were requested to carry the soldiers ' bags up to NORP village . The soldiers kept their identity documents , but returned the identity documents of the persons who remained behind . They set off TIME with the soldiers for GPE village , which was burning . They reached the outskirts around TIME Rather than being released as promised , they were made to await the arrival of military vehicles from ORG to take the soldiers back . The witness stated that GPE village was burning at the time , although they did no go into the village and they did not see any villagers . The QUANTITY of them got into CARDINAL of the vehicles and set off towards sunset for ORG . According to the witness there were CARDINAL soldiers in the truck . When they arrived in ORG , at the \u201c Regiment \u201d , they were made to lie on the ground and were divided into CARDINAL groups of CARDINAL . The witness was unable to confirm whether , apart from the CARDINAL , there were other persons lying on the ground . CARDINAL group comprised ORG and PERSON and PERSON . The witness stated that this was the last occasion on which he saw them . Their names were read out . He and his brothers , PERSON and PERSON , were taken inside the \u201c Regiment \u201d and spent TIME in a cell - like room as the soldiers ' guests since by that stage it was dark . They were well - treated . There were CARDINAL other persons in the room whom they did not know . When questioned , the witness was unable to provide any precise description of the building where he spent TIME . He confirmed that the cell door was locked and guarded . TIME they were handed their identity documents and released . He returned to the hamlet where he remained for CARDINAL or DATE , sleeping in the open . When questioned , the witness stated that he had no explanation as to why GPE and GPE \u0130pek and PERSON had been detained . He had no knowledge of any NORP activity in the area and had never heard of a Major PERSON .","The witness stated that CARDINAL or CARDINAL villages might have been burned on DATE .","The witness stated that he had been serving in ORG when he was appointed on DATE to investigate the applicant 's complaints . He found no records at ORG to indicate that GPE and PERSON had been taken into custody or that an operation had been conducted on DATE by the gendarmes or military units . The commander at ORG was interviewed and he confirmed that neither of these persons had been taken into custody . The investigation was closed on the basis of the absence of documentary evidence that the PERSON brothers had been detained . According to the witness there was no need to obtain the operational records of the military , given that ORG at the time had responsibility for the whole area . When asked about the possibility that the Bolu brigade may have been in the area at the time of the incident , the witness observed that ORG would have been aware of this . The witness reaffirmed that he had established through ORG that no operation had been conducted in or around DATE . When questioned , the witness stated that he did not find it necessary to ascertain from the Bolu brigade whether it had records of operations which it had conducted in DATE . He repeated that the district gendarmerie commander would have had any such information since he had overall responsibility for the area . It had been established that he did not have any information .","The witness told the Delegates that he did not personally visit Dahlezeri hamlet or GPE village since he knew that the inhabitants had all left . He knew the area , having served there and knew that the villages had been abandoned at some stage . The witness could not confirm whether PERSON hamlet or GPE village had actually been destroyed by burning . When questioned on this point , the witness observed that the terms of reference of his investigation also extended to the allegation that the hamlet had been burnt down . ORG informed him that this matter had been investigated and it was found that the hamlet had not been destroyed as alleged . The witness conceded that the report which was sent to him by the commander of ORG only mentioned that no military operation had been carried out . The witness further stated that no villages in the area had been destroyed by military units . On the other hand , he had personally witnessed the burning of villages by the ORG .","The witness declared that , with the exception of the first name and family name , he had no personal identification details of the applicant PERSON at the time of his investigation . Thus , when someone of the same name was located and questioned by the LOC police , there was no reason to believe that the wrong man had been interviewed . No attempts were made to question other members of the applicant 's family or inhabitants of the hamlet since they had no addresses for them . Moreover , there had been intense terrorist activity in the area at that time . The witness deposed that Captain PERSON had not been questioned since it could not be established that the PERSON brothers had been taken into custody and , in addition , Captain PERSON had been posted out of the area by the time he undertook his investigation .","The witness confirmed that he had been the ORG Commander in DATE and that his responsibilities included overall command of the PERSON gendarme station . His responsibilities had included GPE village . He deposed that no military operations had been carried out in the area under his jurisdiction on DATE . Had any such operation been conducted on DATE , either by the gendarmes or by the military or jointly , it would have been recorded in the log book of the district gendarmerie headquarters . The witness affirmed that the armed forces , including the Bolu commando brigade , would have notified his command of any operation which was to be undertaken , including on DATE . Notification of planned military operations was established practice .","The witness stated that no purpose would have been served by visiting the ORG hamlet or GPE in the course of his investigation . The area had been the scene of intense terrorist activity and the villagers had been forced to leave by the ORG . The witness observed that there must exist a minute recording that an officer had questioned former inhabitants of the LOC hamlet . He stressed that the security forces had never engaged in village burning or forcible evacuation of villagers .","When questioned , the witness reiterated that the names of all persons who were taken into custody were entered in the custody register . There was no reference in the register to the detention of the PERSON brothers . The witness noted that no entries were made in respect of persons who were in the gendarme station under observation , for example for the purposes of simple investigations .","The witness , when asked if he had heard of a Major PERSON , stated that there had been a Major PERSON in the region at the time of his service there . He recollected that Major PERSON was in the area in an advisory capacity to CARDINAL of the battalions which was responsible for overseeing the local elections .","The witness was the commander of the ORG gendarme station DATE . He was responsible , inter alia , for ensuring the security of NORP village and its inhabitants . He stated , however , that he had never been to GPE or PERSON during his term of service at the PERSON gendarme station . He explained that at the relevant time they were unable to get to the remote villages since they did not have a vehicle at their disposal . The witness did observe that the soldiers under his command would have visited GPE village for the purposes of carrying out investigations . The witness deposed that no military operation had been conducted on DATE in the region , either by the soldiers under his command or by the armed forces , including the Bolu commando brigade . If any such operation were to be conducted by forces not under his command , he would have been informed TIME in advance .","According to the witness , there had been intense terrorist activity in the area , which forced many people to leave their villages and to move to safer places , such as ORG . He tried in vain to convince the villagers not to leave their villages . The villagers told him that they were sick of terrorists coming to their villages and forcibly taking their food provisions or abducting their sons . The witness rejected any suggestion that the authorities could have ordered the villagers to leave their villages or that they could have been responsible for the immigration from the region .","When questioned about the allegations that ORG hamlet had been destroyed and that the applicant 's CARDINAL sons had been taken away by soldiers , the witness averred that he had never received any such information during his term of service . Had he ever been informed of such an incident he would have carried out an investigation into the allegations and would have reported the situation to the district gendarmerie command to which his station was attached . No application was ever filed about missing persons either by PERSON or any other person . The witness further deposed that he had never been questioned by the NORP authorities in relation to the applicant 's allegations before the ORG . The witness never heard of a Major PERSON serving in the area in question . However , he might have served in another division or at the ORG infantry battalion , which was stationed in an unused school .","LAW provides :","\u201c All acts or decisions of the administration are subject to judicial review ...","The administration shall be liable to indemnify any damage caused by its own acts and measures . \u201d","The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of \u201c social risk \u201d . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .","The principle of administrative liability is reflected in the additional LAW no . CARDINAL of DATE on ORG , which provides :","\u201c ... actions for compensation in relation to the exercise of the powers conferred by this PERSON shall be brought against the administration before the administrative courts . \u201d","The Criminal Code makes it a criminal offence","( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;","( b ) to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;","( c ) to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) or murder ( Article CARDINAL ) ;","( d ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;","( e ) to issue threats ( LAW ) ;","( d ) to carry out an unlawful search of an individual 's home ( ORG CARDINAL and CARDINAL ) ;","( f ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or in case human life is endangered aggravated arson ( Article CARDINAL ) ,","( g ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or","( h ) to damage another 's property intentionally ( Articles CARDINAL et seq . ) .","For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .","If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .","If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . An appeal against the local council 's decisions lies to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .","Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . The civil courts pursuant to LAW may compensate pecuniary loss and non - pecuniary or moral damages awarded under LAW .","Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .","Damage caused by terrorist violence may be compensated out of ORG .","NORP Since DATE , serious disturbances have raged in south - east GPE between the security forces and the members of the ORG ( ORG of Kurdistan ) . This confrontation has , according to the ORG , claimed the lives of CARDINAL of civilians and members of the security forces .","CARDINAL principal decrees relating to the south - eastern provinces of GPE have been made under the PERSON on ORG ( Law no . CARDINAL of DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - east GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG security prosecutors and courts established throughout GPE .","NORP The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to LAW on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to ORG . These councils are composed of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .","The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW","\u201c No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . \u201d"],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","18"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-84117","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2007,"docname":"CASE OF LEBEDEVA v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","The applicant is the grandmother of a minor GPE born in DATE . After the death of her daughter , her son - in - law , PERSON , did not allow her to see GPE","On DATE the applicant instituted proceedings against GPE , seeking permission to see her granddaughter regularly .","On DATE the ORG of Kharkiv ( hereafter \u201c the ORG \u201d ) allowed the applicant 's claim in part .","On DATE the ORG quashed this decision and remitted the case for a fresh consideration .","On DATE ORG found against the applicant .","On DATE the ORG quashed this decision and remitted the case for a fresh consideration .","On DATE ORG allowed the applicant 's claim in part .","NORP On DATE the ORG of Appeal quashed this decision and terminated the proceedings and left the applicant 's claim without consideration as she had not used the possibility of extrajudicial settlement of the dispute before ORG . The applicant was informed that she could re - lodge her claim after exhausting this possibility .","On DATE ORG upheld the ruling of ORG , thereby terminating the proceedings . The applicant received the copy of this ruling by regular mail on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5723","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2001,"docname":"DELJIJAJ v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Antonio Pastor Ridruejo","text":["The applicant is a citizen of GPE , belonging to the NORP GPE - NORP community . She was born in DATE in ORG and is living in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .","The respondent Government were represented by their Agents , Mrs H. Voelskow - Thies , PERSON , of ORG , at the initial stage of the proceedings , and subsequently by PERSON PERSON , ORG , also of ORG .","On DATE the applicant left her country in the company of her mother and her CARDINAL brothers and sisters , born in DATE , DATE , DATE , DATE and DATE , respectively . They arrived in GPE on DATE and applied for political asylum .","When interviewed on DATE before ORG ( ORG f\u00fcr die ORG ) , the applicant stated that , although she had encountered no particular problems with the police or other public authorities , she had left her country with her mother with a view to joining her father who on DATE was granted political refugee status in GPE . She did not wish to be left on her own in GPE .","On DATE ORG granted the applicant 's mother and her CARDINAL minor brothers and sisters asylum . Her sister of full age was granted a residence permit on account of her marriage in GPE .","In a separate decision of the same date , ORG refused the applicant 's request for asylum and requested her to leave GPE within a DATE 's time . ORG found that the applicant had not established a real risk of persecution , if she were to return to her country . ORG added that it could not consider humanitarian or personal grounds or questions arising in connection with LAW ) protecting marriage and family life , the exclusive competence in dealing with these matters being with the authorities in charge of matters concerning aliens ( LANGUAGE ) .","On DATE the applicant lodged an appeal against this decision . She submitted that her father had been granted the status of political refugee . It would be unsafe for her to return to GPE having regard to the established political persecution of her father . She had left her country because as a member of the NORP community in GPE she was subjected to group persecution . Moreover , her expulsion would be in breach of her right to respect for her family life as guaranteed by LAW .","On DATE ORG ( PERSON ) dismissed the appeal . ORG found that the GPE NORP were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in GPE .","Furthermore , a decision rejecting the application for asylum would not , in the court 's view , violate LAW . Under the relevant rules of LAW ) , the applicant could not be granted family asylum since , at the time of introducing her request for asylum , the applicant was DATE and therefore did not qualify for admission as a dependent child . It was not contrary to the concept of the protection of family life to refuse children , who had reached the age of majority , the right to stay with their relatives in GPE , unless specific circumstances justified an exception to the CARDINAL-year age limit . According to ORG , the applicant had not established the existence of any such circumstances and in particular had not shown that she was in any way dependent on her family in GPE . ORG noted also that the applicant 's uncle lived in GPE and that she seemed to be on good terms with him . The applicant 's understandable wish to stay with her family in GPE did not constitute a legal obstacle to her intended expulsion . Finally , ORG pointed out that the administrative authorities in charge of matters concerning aliens could suspend the intended expulsion for humanitarian or personal reasons and issue the applicant a provisional residence permit ( PERSON ) .","By a judgment of DATE ORG ( ORG ) refused to grant the applicant leave to appeal and dismissed her request for legal aid on the ground that her appeal had no sufficient prospects of success .","In DATE the applicant thereupon applied with ORG ( PERSON ) for a decision that the intended expulsion be prohibited under LAW , taken together with LAW .","In ensuing correspondence with the applicant \u2019s representative , ORG , in a letter dated DATE , stated that the applicant had meanwhile been granted a provisional residence permit on account of the critical situation in GPE . Having regard to the applicant \u2019s petition with ORG , no decision would be taken as long as these proceedings were pending .","Since DATE the applicant \u2019s provisional residence permit has not been prolonged . She has been ordered to leave the territory of GPE and she has been issued travel documents . The time - limit for leaving GPE voluntarily has been regularly prolonged .","On DATE the applicant \u2019s son A. was born out of wedlock . The child \u2019s natural father is the applicant \u2019s fianc\u00e9 , who had been granted the status of a recognised refugee and , according to the applicant , does not possess the papers necessary for their marriage .","Persons entitled to asylum ( Article CARDINAL ) of LAW ) enjoy legal status pursuant to LAW and are issued with an unlimited residence permit ( section CARDINAL of LAW ) .","Section CARDINAL of LAW prohibits the deportation of aliens to a State where they would face political persecution . Aliens granted protection against deportation under this provision enjoy legal status under LAW but are merely issued with limited residence for exceptional purposes .","If an asylum claim for protection against political persecution does not meet the necessary requirements under LAW ) of LAW or section CARDINAL(CARDINAL ) of LAW , ORG is obliged to examine whether an applicant faces a serious risk of treatment contrary to LAW if he were returned . Section CARDINAL(CARDINAL ) of LAW prohibits expulsion in such circumstances .","If the preconditions for the application of section CARDINAL(CARDINAL ) are not met , protection may be granted under section CARDINAL(CARDINAL ) of LAW , which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life , personal integrity or liberty of an alien . Persons afforded protection under this provision are granted temporary permission to remain for periods of DATE , renewable by the authorities .","The administrative authorities in charge of matters concerning aliens have to examine under LAW whether an expulsion has to be suspended for legal or factual reasons or for humanitarian or personal reasons ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93658","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2009,"docname":"CASE OF GASPARI v. SLOVENIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant and her then husband ORG , who had decided to get divorced , entered into an agreement on the partition of their joint property . The agreement stipulated , inter alia , that ORG would transfer to her , within DATE , the ownership of LOC on FAC , unless they agreed on a different location . The agreement further stipulated that if the stated obligations were not fulfilled , the applicant could terminate the agreement and claim a share of the joint property in accordance with the relevant domestic law . On DATE the applicant and ORG divorced .","Subsequently , ORG did not transfer the ownership of LOC on FAC to the applicant . However , on DATE the applicant accepted the keys of certain LOC on FAC . After ORG had bought the latter premises , on DATE , he offered the applicant the possibility of signing a supplement to the agreement . According to the supplement , the applicant would receive MONEY of the LOC on FAC as a form of alternative performance of the relevant part of the agreement . The applicant refused to sign the supplement to the agreement .","On DATE she instituted proceedings in ORG ( PERSON sodi\u0161\u010de v PERSON ) seeking termination of the agreement and partition of the joint property .","On DATE F.B. died and his heirs , PERSON , PERSON and PERSON , took over his capacity in the proceedings .","On DATE the court issued a partial judgment terminating the relevant agreement and rejecting the counter - claim lodged by PERSON , PERSON and PERSON ( \u201c the heirs \u201d ) .","On DATE ORG ( PERSON ) quashed the first - instance court \u2019s judgment and remitted the case for re - examination . The applicant then challenged that decision in an appeal on points of law , but that was rejected by ORG on DATE .","In the re - examination proceedings , on DATE , the ( renamed ) ORG ( NORP sodi\u0161\u010de v PERSON ) issued a new judgment rejecting the applicant \u2019s claim . The court considered that the relevant agreement was not a \u201c fixed contract \u201d ( fiksna pogodba ) which could be terminated without allowing additional time for its performance . Moreover , from ORG \u2019s conduct it had not been apparent that he was not going to honour his obligation . The applicant should therefore have offered an additional time - limit to ORG In addition , the court found that ORG had in large part fulfilled his obligations and that the applicant , by accepting the keys to the LOC on FAC , had agreed to an alternative performance of the agreement .","On DATE ORG upheld the first - instance court \u2019s judgment . It , however , amended certain parts concerning the payment of costs and expenses .","On DATE the applicant lodged an appeal on points of law with ORG sodi\u0161\u010de ) . She supplemented the appeal on DATE .","On DATE ORG upheld the applicant \u2019s appeal to the extent that it concerned the application of law by the lower courts , but dismissed the remainder . ORG considered that the interpretation of the relevant agreement concerned the application of the law . It then concluded that ORG had not fulfilled his obligations by offering the applicant only a share of the LOC on FAC . In addition , the applicant had not consented to the alternative performance nor had ORG showed an intention to fulfil his obligations . ORG consequently varied the lower courts\u2019 judgments and terminated the relevant agreement . As far as the partition of the joint property was concerned , ORG remitted the case to the first - instance court .","CARDINAL of the heirs ( J.B.J. and B.E.B. ) lodged a constitutional appeal complaining , inter alia , of the arbitrariness of ORG judgment and of a breach of the provision guaranteeing equal protection of rights ( LAW ) . On DATE ORG ( PERSON sodi\u0161\u010de ) accepted the appeal for consideration , which is equivalent to declaring it admissible . On DATE it upheld the appeal by CARDINAL votes to CARDINAL , quashed ORG judgment and remitted the case to ORG for re - examination ( decision no . Up-CARDINAL\/CARDINAL ) . It would appear that the applicant was informed of that decision ( see paragraph CARDINAL below ) , but there is no document in the case file certifying as to when .","The Constitutional Court found that ORG decision was based on the interpretation of the parties\u2019 motivation and of the content of the agreement . In its view , such interpretation constituted an interference with the facts established by the lower courts . However , according to the domestic legislation , ORG , when deciding on an appeal on points of law , had jurisdiction only for the determination of legal issues . ORG found that ORG decision was obviously erroneous and therefore arbitrary . This , and the fact that ORG had exceeded its jurisdiction , represented an interference with the appellants\u2019 right to equal protection of rights .","In the re - examination proceedings , ORG , on DATE , again varied the lower courts\u2019 judgments by terminating the relevant agreement and remitting the case to the first - instance court to determine the partition of the joint property .","After accepting for consideration the relevant part of the heirs\u2019 further constitutional appeal on DATE , ORG , on DATE , quashed ORG judgment , dismissed the applicant \u2019s appeal on points of law and upheld ORG judgment of DATE . The decision was adopted by CARDINAL votes to CARDINAL ( decision no . Up-CARDINAL\/CARDINAL ) .","The Constitutional Court found that ORG had again dealt with questions of fact DATE a matter over which it had no jurisdiction ; that it had failed to provide reasons for its decision , which was different from previous decisions adopted in other cases concerning the same issue ; and that it had disregarded the instructions given by ORG . The latter therefore again found a violation of the right to equal protection of rights . Using the special power afforded in section CARDINAL of LAW and because of the already lengthy duration of the proceedings , ORG , in order to secure effective judicial protection , decided on the merits of the case itself and upheld ORG judgment of DATE .","The Constitutional Court \u2019s decisions of CARDINAL DATE and DATE noted , under paragraph CARDINAL , as follows :","\u201c in accordance with the provisions of sections CARDINAL and CARDINAL of LAW , ORG served the constitutional appeal on ORG , on the opposite party ( plaintiff ) to the proceedings [ the applicant ] and on the third defendant in the proceedings . None of them replied to the constitutional appeal . \u201d","According to the applicant , she had not received a copy of the first constitutional appeal . On DATE , a note was prepared by an official in this connection on ORG premises . The note , which appeared to be part of the file no . Up CARDINAL\/CARDINAL , mentioned that the constitutional appeal and admissibility decision of DATE had been handed over to the applicant .","In addition , the applicant submitted to the ORG copies of receipts relating to the attempt to serve the process by ORG , concerning the file no . Up CARDINAL\/CARDINAL . It would appear that this process included a copy of the second constitutional appeal , the admissibility decision and a letter informing the applicant that the constitutional appeal had been accepted for consideration and that that the applicant should submit her comments within DATE . It transpires from the receipts that the process was sent by ORG on DATE but had not been served on the applicant . The address referred to in the receipts and the letter is different from the applicant \u2019s address as mentioned in her claim and in the decisions issued in the domestic proceedings , including in the last ORG judgment . According to the applicant , the address used to serve the process was actually the address of CARDINAL of the other parties to the proceedings .","LAW ( Zakon o Ustavnem sodi\u0161\u010du , ORG no . CARDINAL ) provides , in so far as relevant , as follows :","\u201c For procedural questions which are not governed by LAW , the ORG shall apply the relevant provisions of legislation concerning [ ordinary ] court proceedings , taking into consideration the nature of the matter . \u201d","\u201c After being accepted , a constitutional appeal shall be referred to the body which issued the decision against which the constitutional appeal is lodged , in order for that body to reply to the constitutional appeal within a given time - limit . \u201d","\u201c CARDINAL . If ORG quashes a decision , it may also decide on a relevant right or freedom if such procedure is necessary in order to bring to an end consequences that have already occurred on the basis of the quashed decision , or if so required by the nature of the constitutional right or freedom , and provided that a decision can be given on the basis of information in the file .",".... \u201d","On CARDINAL DATE ORG adopted amendments to LAW ( Official Gazette no . DATE ) . Section CARDINAL was amended to read :","\u201c CARDINAL . If ORG accepts a constitutional appeal for consideration , it shall inform the body which issued the decision against which the constitutional appeal is lodged accordingly . A ORG judge .... can request the body ... to submit information or an explanation necessary for the decision on the constitutional appeal .","In the above circumstances , the constitutional appeal should be sent to the persons who participated in the proceedings leading to the decision challenged in the appeal if that decision concerned CARDINAL of their rights , obligations or legal interests , so that they can reply to it within a certain time - limit . \u201d","Paragraph CARDINAL of section CARDINAL of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL , in force since DATE ) provides that an appeal on points of law is not allowed in respect of an alleged erroneous or insufficient establishment of the facts .","Under section CARDINAL of LAW , proceedings which have been finally concluded by a court decision ( pravnomo\u010dno kon\u010dan ) can be reopened at the request of a party to the proceedings , if , inter alia , that party did not have an opportunity to give testimony in court , due to some illegality , in particular lack of service . The final conclusion of the proceedings in principle refers to the final decision against which no ordinary appeal lies ; that would normally be a decision of a first - instance court , or if an appeal has been lodged , that of a second - instance court .","Section CARDINAL of the same act provides that certain documents ( such as statements of claim , notices of extraordinary remedies or judgments which can be appealed against ) should be served on parties in person . If the party is not found at his or her address , the server should leave a note informing him or her of a new date on which he or she is to be served with the process . If the party is not found at his or her address on that date , the server will serve the process on , inter alia , an adult family member , who will be required to accept the process . If that is not possible , the server will return the process to the court or leave it at a local post office . The server will leave a note at the party \u2019s address informing him or her of the process and the DATE deadline for its collection . The note shall also state the reasons why the process was left at the post office or the court and the date of that event . Under the above conditions and , as the case may be , after the expiry of the deadline , the process will be considered to have been effectively served on the addressee ( sections CARDINAL ) .","The Government submitted CARDINAL decisions by which ORG had decided on requests for reopening of the proceedings before it . CARDINAL of them ( decision no . U - I-CARDINAL\/CARDINAL of DATE and decision no . U - I-CARDINAL\/CARDINAL of CARDINAL DATE ) concern proceedings by which the constitutionality and legality of a statutory act were being challenged ( postopek za oceno ustavnosti in zakonitosti ) . In both of them , ORG found that neither LAW nor any other legislation provided for the possibility of reopening such proceedings .","In the oldest of the remaining CARDINAL decisions concerning proceedings in which a constitutional appeal had been dismissed ( decision no . Up-CARDINAL\/CARDINAL of CARDINAL DATE ) , the panel of CARDINAL members of ORG ( that is a formation in which a decision on admissibility is normally taken ) dismissed the request for reopening . It explained that the appellant had not invoked any of the grounds which would justify reopening under the relevant provision of LAW and section CARDINAL of LAW . Likewise , in all the remaining decisions ( decision no . Up-CARDINAL\/CARDINAL of DATE , decision no . Up-CARDINAL\/CARDINAL of CARDINAL DATE and decision no . Up-CARDINAL\/CARDINAL of DATE ) ORG found that the appellants had not demonstrated any grounds which could justify reopening under LAW and the relevant provisions of the legislation concerning court proceedings . It therefore rejected the requests , but added that this decision was taken \u201c without considering the issue whether the reopening of the proceedings before ORG was actually possible \u201d ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57570","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1988,"docname":"CASE OF SALABIAKU v. FRANCE","importance":2,"conclusion":"No violation of Art. 6-1;No violation of Art. 6-2","judges":"","text":["ORG Mr PERSON , a NORP national born in DATE , resides in GPE with his family .","ORG On DATE , PERSON went to FAC to collect a parcel which he had been informed by telex message was to arrive on board an ORG flight . According to the applicant , he expected the parcel to contain samples of NORP food sent to him through the intermediary of CARDINAL of his relatives who was an ORG employee . As he was unable to find it , he approached an airline official who directed him to a padlocked trunk which had remained uncollected and bore an ORG luggage ticket but no name . The official , acting on the advice of police officers watching the trunk , suggested that he left it where it was , intimating to him that it might contain prohibited goods .","The applicant took possession of it nevertheless , and passed through customs without difficulty . He had chosen to go through the \" green channel \" for passengers having nothing to declare . He was accompanied by CARDINAL other NORP nationals whom he had met there for the first time . Immediately afterwards he telephoned to his brother PERSON to come and meet him at a terminal near their home in order to help him since the package had proved heavier than expected .","ORG officials then detained Mr PERSON and his CARDINAL companions as they were about to board the ORG terminal coach . Mr Salabiaku identified himself as the person for whom the trunk had been intended and denied that it was anything to do with his CARDINAL compatriots who were immediately released .","ORG officials forced the lock of the trunk and found , lying underneath victuals , a welded false bottom which concealed QUANTITY of herbal and seed cannabis . The applicant asserted that he was unaware of the presence of the cannabis and that he had mistaken the trunk for the parcel of whose arrival he had been advised . His brother was also arrested at the Porte Maillot ( GPE ) .","ORG On DATE , ORG telephoned to Mr Amosi and Mr PERSON landlord , informing him that a parcel bearing the applicant \u2019s name and his address in GPE had arrived by mistake in GPE . It was opened by an investigating judge but was found to contain only manioc flour , palm oil , pimento and peanut butter .","Mr Amosi and Mr PERSON were released on DATE and , together with a certain PERSON , also a NORP national , were charged with both the criminal offence of illegally importing narcotics ( Articles PERSON , L. CARDINAL , L. CARDINAL , L. CARDINAL - CARDINAL , PERSON . of ORG ) and the customs offence of smuggling prohibited goods ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Customs Code , ORG CARDINAL , CARDINAL - CARDINAL et seq . and CARDINAL of LAW ) . By an order dated DATE , they were committed for trial before ORG , ORG .","ORG On DATE , the CARDINALth Chamber of this court acquitted Mr PERSON and PERSON giving them the benefit of the doubt but found the applicant guilty . It stated in particular :","\" The accused \u2019s bad faith is evidenced by the fact that he showed no surprise when the first package opened in his presence turned out to contain none of the foodstuffs contained in the second package , although he described clearly what he claimed to be expecting from PERSON and received in the second .","The latter package arrived in GPE in circumstances which it has not been possible to determine and its existence can not rebut presumptions which are sufficiently serious , precise and concordant to justify a conviction .... \"","Consequently , the court imposed on Mr PERSON a sentence of CARDINAL years\u2019 imprisonment and a definitive prohibition on residing in NORP territory . Furthermore , in respect of the customs offence , it imposed on him a fine of MONEY ( FF ) , under LAW , to be paid to the customs authorities , which had joined the proceedings as a civil party .","ORG The applicant and ORG appealed .","On DATE , ORG ( CARDINALth Chamber ) set aside the judgment with regard to the criminal offence of illegal importation of narcotics , on the following grounds :","\" ... the facts alleged against the accused are not sufficiently proven ; ... in fact , although Mr PERSON , who had been expecting only a parcel of victuals , took possession of a very heavy trunk secured by a padlock to which he did not have the keys , which bore no name of any addressee and for which he did not have the corresponding luggage ticket counterfoil , it has been established that a package in his name containing victuals arrived DATE afterwards in GPE on an ORG flight from GPE . This package had apparently been sent to GPE in error , its intended destination being GPE ;","... in those circumstances , it is not impossible that Mr PERSON might have believed , on taking the trunk , that it was really intended for him ; ... there is at least a doubt the benefit of which should be granted to him , resulting in his acquittal ... \"","The court , on the other hand , upheld the first - instance decision as regards the customs offence of smuggling prohibited goods :","\" ... any person in possession ( d\u00e9tention ) of goods which he or she has brought into GPE without declaring them to customs is presumed to be legally liable unless he or she can prove a specific event of force majeure exculpating him ; such force majeure may arise only as a result of an event beyond human control which could be neither foreseen nor averted ... ;","...","... Mr PERSON went through customs with the trunk and declared to the customs officials that it was his property ; ... he was therefore in possession of the trunk containing drugs ;","... he can not plead unavoidable error because he was warned by an official of ORG ... not to take possession of the trunk unless he was sure that it belonged to him , particularly as he would have to open it at customs . Thus , before declaring himself to be the owner of it and thereby affirming his possession within the meaning of the law , he could have checked it to ensure that it did not contain any prohibited goods ;","... by failing to do so and by having in his possession a trunk containing QUANTITY of herbal and seed cannabis , he committed the customs offence of smuggling prohibited goods ... \"","ORG also confirmed the fine of CARDINAL ORG imposed on the applicant ; it fixed at the minimum period the duration of imprisonment for non - payment .","Mr PERSON appealed on points of law . He relied on DATE CARDINAL of Article CARDINAL ( article DATE , article DATE ) of the Convention : in his submission , by placing upon him an \" almost irrebuttable presumption of guilt \" , which \" operated in favour of the customs authorities \" , ORG had violated both his right to a fair trial and his right to be presumed innocent until proved guilty .","ORG ) dismissed the appeal on CARDINAL DATE , finding that the judgment appealed against had \" properly \" applied LAW para . CARDINAL of LAW , under the terms of which \" the person in possession of contraband goods shall be deemed liable for the offence \" :","\" ... contrary to what is alleged , the aforementioned Article was not repealed by implication by GPE \u2019s adhesion to the Convention ... and had to be applied since ORG , which reached its decision on the basis of the evidence adduced by the parties before it , found that the accused was in possession of the trunk and inferred from the fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid . \"","Infringements under LAW constitute criminal offences with various specific characteristics .","The Customs Code essentially prohibits smuggling ( Articles CARDINAL to CARDINAL ) and undeclared importation or exportation ( Articles CARDINAL to CARDINAL ) . This case is concerned solely with smuggling . The notion of smuggling covers \" any importation or exportation effected outside official customs LOC and any infringement of the provisions or regulations concerning the possession and transport of goods within the customs territory \" ( Article CARDINAL para . CARDINAL ) , for example , but not exclusively , where the goods concerned are \" prohibited on importation \" ( Article CARDINAL para . CARDINAL , to be read in conjunction with LAW ) .","ORG At the material time LAW classified these infringements in CARDINAL classes of petty offences ( contraventions ) and CARDINAL of more serious offences ( d\u00e9lits ) . Articles CARDINAL to CARDINAL imposed \" primary penalties \" which varied according to the gravity of the infringement : such penalties included fines fixed either within set maximum and minimum limits ( Articles CARDINAL para . CARDINAL , CARDINAL and CARDINAL bis ) or at \" between CARDINAL and CARDINAL times the amount of duty and taxes evaded or unpaid \" ( Article CARDINAL para . CARDINAL ) , \" the value of the disputed goods \" ( Article CARDINAL ) , of \" the contraband article \" ( Articles CARDINAL and CARDINAL ) or of \" the confiscated articles \" ( Article CARDINAL ) , with a fixed minimum ( Article CARDINAL ) ; confiscation of \" the disputed goods \" ( Article CARDINAL ) or \" the contraband article \" , \" the means of transport \" and \" articles used to conceal the offence \" ( Articles CARDINAL , CARDINAL and CARDINAL ) ; and imprisonment for terms of DATE ( Article CARDINAL bis ) , DATE ( Article CARDINAL ) , DATE ( Article CARDINAL ) or DATE ( Article CARDINAL ) , according to the type of offence involved .","Mr PERSON was charged under LAW , according to which :","\" Any act of smuggling and any undeclared importation or exportation of goods falling within the category of goods which are prohibited ... , on importation , ... , shall be punishable by the confiscation of the contraband article , confiscation of the means of transport employed , confiscation of articles used to conceal the offence , a fine of not less than the value of the contraband article and not CARDINAL times its value and a term of imprisonment of DATE . \"","Certain of these punitive measures - fines not fixed in advance and confiscations - are also described as \" fiscal penalties \" ( Articles CARDINAL para . CARDINAL and CARDINAL ) . In general they are regarded as being compensatory in nature in so far as they are intended to make good loss sustained by the customs authorities .","There are also a number of \" additional penalties \" ( Articles CARDINAL to CARDINAL ) , including in particular measures of disqualification ( Article CARDINAL ) .","Both primary and additional penalties may give rise to an entry in the criminal record of the person concerned .","Seizure \" reports \" drawn up \" by a customs officer or any other official \" may constitute - and usually do - evidence of customs offences ( ORG CARDINAL to CARDINAL ) . Depending on whether they are issued by CARDINAL or more officials , they attest \" the facts which they record \" merely until \" the contrary is proved \" or until \" forgery proceedings have been instituted \" ( Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ) . They are \" remitted to ORG and the persons charged with the offence are brought \" before him ( Article CARDINAL para . CARDINAL ) .","The initiative for instituting prosecution lies with ORG for \" criminal penalties \" , stricto sensu , and with the customs authorities - or ORG , \" in conjunction with the criminal proceedings \" - for \" fiscal penalties \" ( LAW . District courts have jurisdiction to try petty customs offences , and criminal courts , more serious customs offences ( Articles CARDINAL and CARDINAL ) . In principle the procedure follows the rules of the ordinary law ( Articles CARDINAL , CARDINAL and CARDINAL ) .","ORG The offence with which the applicant was charged - the smuggling of narcotics , \" prohibited goods \" ( LAW does not necessarily require possession . However , where possession is established , \" the person in possession ... is deemed liable for the offence \" , without prejudice to any penalties which may be incurred by other persons , for example any accomplices ( LAW ) or \" persons with an interest in the offence \" ( LAW ) . This principle is set out in LAW para . CARDINAL .","The provision in question appears in LAW ( \" Liability and Joint Liability \" ) of Title XII ( \" Contentious Proceedings \" ) of LAW , at DATE I ( \" Criminal Liability \" ) , and not among the \" punitive provisions \" of LAW . It is a general clause which applies both to smuggling offences and undeclared importation or exportation as well as to any \" unlawfully imported or exported goods \" , irrespective of whether they are prohibited as such .","Read strictly this provision would appear to lay down an irrebuttable presumption , but , in any event , its severity has been to some extent moderated by the decisions of the courts . Thus ORG now upholds the trial court \u2019s unfettered power of assessment with regard to \" evidence adduced by the parties before it \" ( see , for example , the PERSON judgment of DATE , Bulletin no . CARDINAL , p. CARDINAL ) and recognises that the accused may exculpate himself by establishing \" a case of force majeure \" resulting \" from an event responsibility for which is not attributable \" to him and which \" it was absolutely impossible for him to avoid \" , such as \" the absolute impossibility ... of knowing the contents of [ a ] package \" ( see , for example , ORG and PERSON judgment of DATE , ORG , DATE , jurisprudence , pp . CARDINAL - CARDINAL , and the judgment delivered in this case on CARDINAL DATE , paragraph CARDINAL above ; see further ORG , GPE , DATE , PERSON and Others , ORG , DATE , jurisprudence , pp . CARDINAL - CARDINAL ) . At the same time LAW , which concerns third parties \" with an interest in the offence \" and not \" persons in possession \" , states in paragraph CARDINAL thereof that \" the interest in the offence can not be imputed to a person who has acted out of necessity or as a result of unavoidable error \" .","On the other hand under paragraph CARDINAL of Article CARDINAL the courts were required to refrain from \" acquitting offenders for lack of intent \" . While it is true that PERSON no . CARDINAL - CARDINAL of DATE repealed this provision , clearly this had no effect on the present case .","It is necessary to distinguish between the possibility of a simple acquittal and that provided for in Article CARDINAL para . CARDINAL : namely recognition of extenuating circumstances . In such cases the court may , inter alia , \" refrain from imposing on the accused the criminal penalties laid down in the ... Code \" , order that their enforcement be suspended or decide \" that the conviction should not be entered in \u2018 Bulletin no . CARDINAL of the criminal record \" , order the return to the person concerned of certain confiscated goods or reduce the amount of the \" fiscal fines \" ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1","6-2"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-59470","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2001,"docname":"CASE OF BAUMANN v. FRANCE","importance":1,"conclusion":"Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine P1-1;Violation of P4-2","judges":"Nicolas Bratza","text":["On DATE GPE police officers spotted an occupied vehicle parked in a car park . It turned out that the vehicle had been stolen DATE in GPE . The investigators proceeded to arrest GPE , who had come to take delivery of the stolen vehicle , and GPE , who had handled it . The on - the - spot investigation established that other transactions had taken place and that the CARDINAL arrested men used to meet in a hotel in GPE ( Bas - Rhin ) . The police officers went to the hotel where they arrested PERSON 's wife and Miss ORG while the latter was about to get into a vehicle belonging to the applicant .","When questioned at the hotel ORG stated that her boyfriend , the applicant , had been staying at the hotel for some time , but had been taken into hospital in GPE on DATE because his health had given cause for alarm .","Their hotel room was searched . The investigators seized a NORP passport in the applicant 's name , MONEY ( ORG ) and MONEY ( ORG ) found in ORG 's handbag , bank documents , a vehicle registration certificate and various hand - written documents . Those items were sealed and deposited at the consignment of exhibits department at the GPE tribunal de grande instance .","After her release from police custody no court proceedings were brought against TIME were brought against the applicant either .","On DATE ORG were charged by an investigating judge of the GPE tribunal de grande instance .","The applicant 's lawyer lodged an application under LAW on DATE , registered at the investigating judge 's office on DATE , requesting the investigating judge to return the money and other seized items , including the passport . He received no reply from the investigating judge .","On DATE the applicant was arrested by the criminal police of GPE ( GPE ) and convicted by a criminal court in PERSON . Since then he has since been imprisoned in FAC , where he is due to remain until DATE .","O.H. and GPE were committed for trial at ORG where they were tried and convicted on DATE without the applicant or his girlfriend having been informed . The applicant could not therefore lodge an application for the return of his possessions with the criminal court trying the case .","On DATE the applicant 's lawyer renewed his request to the investigating judge of DATE . He received no reply .","On DATE the applicant 's lawyer lodged an application with the public prosecutor under LAW for the return of the DEM CARDINAL,CARDINAL , the bank statements and a rechargeable mobile - telephone battery .","On DATE the public prosecutor refused his application on the ground that the items had been confiscated by order of ORG in its judgment of DATE in the proceedings against ORG PERSON In his reply the public prosecutor referred to the application lodged with the investigating judge on DATE and renewed on DATE .","On DATE the applicant 's lawyer lodged an application with ORG of the GPE tribunal de grande instance under LAW for the return of the seized items . The application , which just bore the stamp of the GPE public prosecutor 's office , dated DATE , concerned the applicant 's passport , the DEM CARDINAL , the bank statements and the rechargeable mobile - telephone battery .","On DATE the public prosecutor replied to that application as follows :","\u201c Despite my letter of DATE advising you that nothing could be returned to PERSON on any grounds whatsoever because the court had ordered confiscation of the sealed items , you persist in wishing to obtain a hearing in connection with the sealed items in question .","I regret to have to repeat myself in pointing out that the judgment dated DATE has become res judicata and that LAW does not provide for the reopening of proceedings terminated by a confiscation decision which has become final .","Article CARDINAL of the Code of Criminal Procedure is reserved for interlocutory applications relating to the execution of a decision and not disputes about the penalties imposed . The court in question did not have any power to reconsider a measure which had become res judicata . ... \u201d","NORP In a letter of CARDINAL DATE ORG requested the public prosecutor to return the seized LAW and ORG CARDINAL,CARDINAL on the ground that the money belonged to her and that she was not in any way involved in the criminal proceedings . In a letter of DATE she renewed her request , stating among other things : \u201c my ex - boyfriend has put me in a difficult position which has seriously changed my life ... I have incurred debts because of him ... it is very important for me to recover my money ... \u201d","The relevant provisions of LAW provide :","...","\u201c Where the nature of the crime is such that it can be proved by seizing papers , documents or other objects in the possession of persons who appear to have participated in the crime or to hold documents or objects relating to the offence , a senior police officer shall immediately go to their place of residence where he shall search the LOC and draw up a search report .","He alone , together with the persons listed in LAW and those to whom he may refer under LAW , shall have power to examine papers or documents before seizing them .","However , he must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected .","An inventory shall be made immediately of all seized objects and documents which shall then be placed under seal . Where an on - the - spot inventory presents difficulties , the items shall be provisionally sealed until an inventory of them can be made and they can be definitively sealed , which shall be done in the presence of the persons present during the search in accordance with the conditions laid down in LAW .","With the agreement of the public prosecutor , the senior police officer shall retain only those objects and documents necessary for establishing the truth . \u201d","..."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61284","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2003,"docname":"CASE OF TEMPESTI CHIESI AND CHIESI v. ITALY","importance":4,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicants were both born in DATE and live in GPE .","They are the owners of a flat in GPE , which they had let to GPE","In a writ served on the tenant on DATE , the applicants informed him of their intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the Florence Magistrate .","By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .","In the meanwhile the tenant died and his wife refused to leave the LOC .","On DATE , the applicants made a statutory declaration that they urgently required the premises as accommodation for their son .","On DATE , the applicants served notice on the tenant requiring her to vacate the premises .","On DATE , they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .","DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were never granted the assistance of the police in enforcing the order for possession .","In the meanwhile , on DATE , the applicants made a second statutory declaration that they urgently required the premises as accommodation for their son .","Pursuant to section CARDINAL of Law no . CARDINAL , on DATE , the tenant asked for a suspension of the enforcement proceedings . The Florence Magistrate suspended the proceedings until DATE .","On DATE , the applicants recovered possession of the flat .","Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG \u2019s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V.","As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .","The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for \u201c fair rents \u201d ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .","The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies .","Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .","Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .","NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :","\u201c The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages \u201d .","NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of CARDINAL DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .","In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .","ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115208","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2012,"docname":"CASE OF ASADBEYLI AND OTHERS v. AZERBAIJAN","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicants were participants in or were alleged to be organisers of the unauthorised demonstration of CARDINAL DATE , which escalated into violent clashes between the law - enforcement authorities and the demonstrators , as described below .","The events of the present case occurred in the aftermath of the presidential elections of DATE . The main opposition candidate , PERSON , the chairman of ORG , lost the elections of DATE .","On TIME of DATE a group of opposition supporters gathered in front of ORG headquarters in the centre of GPE , claiming victory for their candidate in the election . Violent altercations between opposition supporters and the security forces took place at this time .","At TIME on DATE a number of opposition supporters started gathering near ORG , in the centre of GPE , to protest against the election results . The crowd then started moving towards FAC , the main square in the city . It was reported that on the way some people in the crowd began damaging cars , buildings , benches and other urban constructions . It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence .","It has been claimed that some police officers who had been deployed in FAC were attacked by some of the demonstrators . Shortly thereafter large numbers of riot police and military personnel , fully equipped with helmets , shields and truncheons , arrived in the square with the aim of dispersing the demonstration . The situation quickly escalated into public disorder , and violent clashes occurred between the crowd and the police . It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question .","At TIME the demonstration was completely dispersed . CARDINAL people were arrested during the events of DATE and in their aftermath .","On DATE ORG instituted criminal proceedings ( case no . CARDINAL ) concerning the events of CARDINAL and QUANTITY DATE . CARDINAL people , of the CARDINAL arrested in connection with those events , were eventually prosecuted in connection with those proceedings . The proceedings concerned only the actions of the organisers of the demonstration and those participating in it , and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration ( see Muradova v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL and CARDINAL , DATE ) .","Almost the whole pre - trial investigation , in respect of all the defendants , was conducted in the context of this single set of criminal proceedings . However , as the investigation drew close to completion , criminal case no . DATE was gradually split into several cases , eventually dividing the accused into CARDINAL separate groups . It appears that the only reason formally given by the prosecution for splitting up the case was the concern that the sheer number of defendants involved ( CARDINAL ) would prolong the proceedings and that it would be impractical to hold a single trial involving so many defendants ( see ORG and Others v. GPE , QUANTITY . CARDINAL\/CARDINAL , GPE , ORG and CARDINAL , LAW , CARDINAL DATE ) . Furthermore , it appears that no significant investigative steps were taken after the cases were split ( ibid . , \u00a7 \u00a7 CARDINAL and CARDINAL ) . Each of the CARDINAL defendant groups thus created was tried separately . CARDINAL of those trials concerned the events of DATE : they were all conducted by ORG and were completed in DATE and DATE ( CARDINAL trial concerned the events of DATE , and this trial was conducted by ORG ) . All the defendants in those trials , including the applicants in the present case , were found guilty and sentenced to either imprisonment , suspended prison terms or restriction of liberty .","The circumstances relating to each individual applicant in the present case are summarised separately below .","Mr B. Asadbeyli was the head of the PERSON branch of ORG . PERSON , PERSON and PERSON held various positions within ORG . PERSON and PERSON E. ORG were students at a public university and had no formal affiliation to any political party .","Applicant H. ORG died on DATE , after the events described below and after the present application had been lodged with the ORG . His brother , Mr ORG , expressed a wish to continue pursuing the application on his behalf .","Mr S. GPE was arrested on DATE during the dispersal of the demonstration by the police . He was charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d under LAW and CARDINAL of LAW . On DATE ORG remanded him in custody for a period of DATE .","Mr PERSON was also arrested on DATE . He states that the arresting police officers issued a \u201c report on an administrative offence \u201d ( inzibati x\u0259ta bar\u0259d\u0259 protokol ) , accusing him of non - compliance with police orders in FAC , an offence under LAW ( \u201c the CAO \u201d ) .","It appears from the documents submitted by the Government that on DATE PERSON was brought before the judge of ORG in connection with the charge under the ORG . According to the transcript of the hearing , the applicant admitted that he had not complied with police orders , and expressed remorse for his actions . On DATE the ORG convicted him under Article CARDINAL of the ORG and sentenced him to CARDINAL days\u2019 \u201c administrative detention \u201d .","On DATE Mr E. ORG lodged an appeal seeking a reduction of his sentence on the grounds of family circumstances and the fact that he was a student . On DATE , DATE , ORG reduced the sentence to CARDINAL days\u2019 detention and , having regard to the fact that he had already been in detention for DATE , ordered his immediate release .","According to PERSON , no copies of decisions concerning these administrative proceedings were made available to him .","NORP However , soon after his release from \u201c administrative detention \u201d , Mr E. Mammadov was arrested again and charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d under LAW and CARDINAL of LAW . In particular , he was accused of joining other participants in the demonstration in destroying public benches and asphalt and concrete revetments of pavements and roads , and of using stones as well as wooden and concrete debris obtained from the properties destroyed to assault police officers in FAC , in a manner posing a danger to their life and health .","Mr E. ORG was then remanded in custody pending criminal trial .","During their pre - trial detention , both PERSON GPE and PERSON E. ORG were expelled from the university .","On DATE Mr B. Asadbeyli , Mr S. Hamidov , Mr E. Huseynli and PERSON were taken from their homes to ORG for questioning . TIME they were allowed to go home but were instructed to come back TIME . On DATE they were taken to ORG in GPE . When they arrived in GPE they were held in a police car for TIME outside the building of ORG . In the evening they were taken into the building and questioned . On DATE they were questioned in the absence of a lawyer .","Following the questioning , the CARDINAL applicants were charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d . On DATE ORG , issuing separate detention orders for each of the CARDINAL applicants , remanded them in custody for DATE . Some of the applicants were represented by Stateappointed lawyers at the hearings .","On DATE the court replaced Mr PERSON \u2019s detention with a written undertaking not to leave his place of residence , and he was released pending trial .","According to the applicants , prior to their trial , several high - ranking state officials , including ORG and the Minister of ORG , made public statements on television and in newspapers , referring to the participants in the demonstration of DATE as \u201c criminals \u201d and promising that they would be punished .","In the course of the investigation , following a request by the prosecution , ORG authorised ORG to obtain from ORG , a cellular network operator , detailed information on all mobile phone connections registered during the period from TIME on DATE in the area around FAC , with the purpose of establishing whether various defendants were present in the square at the relevant time . However , according to PERSON GPE , he subsequently discovered that the case file contained print - outs of a \u201c call details report \u201d concerning all his private phone calls made over a longer time span and a larger geographical area than those authorised by the court .","All the applicants were tried together by ORG ( this trial was referred to as \u201c ORG CARDINAL \u201d in the PERSON report cited below ) . In total , there were CARDINAL defendants in the case , including the applicants .","The court relied on statements from a number of police officers as witnesses , who testified against the demonstrators . During the pre - trial investigation several police officers were shown photographs of the applicants and recognised them as demonstrators who had been throwing stones at police officers during the events of DATE . According to the applicants , they were not given an opportunity to meet these witnesses during the pre - trial investigation or to cross - examine them during the trial . According to the Government , the applicants were able to question all the witnesses who testified in court .","By a judgment of DATE , ORG convicted all the applicants as charged under ORG CARDINAL and CARDINAL of LAW . PERSON GPE , Mr NORP Hamidov , Mr H. ORG and Mr E. ORG were given suspended sentences of DATE and CARDINAL months\u2019 imprisonment and released immediately from the courtroom . Mr E. Huseynli and Mr S. GPE were sentenced to CARDINAL and CARDINAL years\u2019 imprisonment respectively .","All the applicants appealed against ORG judgment of DATE . ORG examined all CARDINAL appeals together . According to the applicants , they were not notified in advance of the time of the hearing at ORG . Only Mr B. GPE , Mr S. GPE and the latter \u2019s lawyer were able to attend the hearing . Mr B. Asadbeyli learned of the examination of the appeal by chance on DATE the hearing was held . On DATE ORG dismissed the ORG appeals and upheld ORG judgment of DATE . That court reduced the sentences of PERSON and PERSON GPE to DATE and DATE respectively .","On DATE Mr E. ORG lodged a cassation appeal against ORG judgment . According to the Government , on DATE ORG informed the applicant of the date of the hearing ; however , the applicant failed to request the court to ensure his presence at the hearing and both the applicant and his lawyer failed to appear at the hearing . However , according to the applicant , he did not receive any response from ORG to his cassation appeal .","After his release from prison , on DATE Mr PERSON sent an inquiry to ORG concerning his appeal . On DATE ORG sent him a letter informing him that his appeal was still pending and stating , inter alia : \u201c ... your cassation appeal will be examined . \u201d","According to Mr PERSON , his appeal was never examined .","On an unspecified date , Mr S. GPE lodged a cassation appeal with ORG . In reply , on DATE ORG sent him a letter stating the following :","\u201c ORG has received your cassation appeal . We would like to inform you that if you disagree with the judgment of ORG , you may lodge a cassation appeal with ORG in accordance with Articles CARDINAL - CARDINAL of the Code of Criminal Procedure . \u201d","According to Mr PERSON , his appeal was never examined .","The other CARDINAL applicants , PERSON GPE , Mr NORP Hamidov , Mr H. ORG and Mr E. ORG , also lodged cassation appeals against ORG judgment of DATE . ORG examined their appeals together and , on DATE , dismissed them , upholding the lower courts\u2019 judgments . The full text of ORG decision was sent to the applicants on DATE .","Mr S. GPE served his full DATE prison sentence and was released on DATE .","Following a presidential pardon decree , on DATE Mr PERSON was released from serving the remainder of his sentence of CARDINAL years\u2019 imprisonment .","The applicant was arrested on DATE during the dispersal of the demonstration .","After the arrest , he was taken to the LOC police station and later to the LOC police station . His family was not informed of his arrest . According to the applicant , at both police stations he was questioned in the absence of a lawyer . Interrogations were accompanied by illtreatment , in order to make him confess that he had actively participated in the disorder and had used violence against police , as well as to disclose the names of the organisers of the disorder .","On DATE the applicant was formally charged under LAW and CARDINAL of LAW . He was then taken to ORG , where , he states , he was forced to sign selfincriminatory statements .","On DATE , a district court in GPE remanded the applicant in custody for DATE . This decision was taken in the applicant \u2019s absence . He was not informed of the decision and was not given a copy of it . He was still unrepresented by a lawyer at this stage .","On DATE the applicant \u2019s parents were informed about the applicant \u2019s arrest . On DATE he was allowed to meet his lawyer for the first time .","The trial at ORG began on DATE ( ORG CARDINAL ) . The applicant was tried with CARDINAL others , including another applicant in this case , Mr PERSON . During the first hearing , the applicant declared that he was not guilty and claimed that he had been forced to give self - incriminatory evidence during DATE in detention . He asked the court not to admit in evidence his statements made during the pre - trial investigation . Some of the other defendants made similar complaints and requests .","Following the applicant \u2019s allegations of ill - treatment in pre - trial detention , the court ordered a medical examination of the applicant . According to the forensic report of DATE , the forensic expert found no injuries which could have been inflicted at the time and in the circumstances alleged by the applicant . The applicant \u2019s lawyer protested , claiming that he had not been informed about the time and place of the medical examination and was therefore unable to put questions to the medical expert . His request for a new medical examination was refused . The court found the applicant \u2019s and other GPE allegations of ill - treatment unsubstantiated and admitted in evidence their statements given during pretrial investigation .","During the trial , the court heard and relied on statements from CARDINAL prosecution witnesses ( the great majority of whom were police officers and military personnel ) who testified against all demonstrators in general , describing the public disorder which had taken place and characterising the demonstrators\u2019 intentions and actions as violent . The court also heard CARDINAL police officers who testified against the applicant in particular ; they stated that they had seen the applicant throwing stones at police officers . The court also watched a video recording which allegedly identified the applicant as one of the demonstrators throwing stones and running around with a club and a shield in his hands . The court refused the applicant \u2019s request for witnesses to be examined who would testify to violence by law - enforcement officers against peaceful demonstrators , and also refused to admit in evidence a video recording and photographs with scenes of police brutality against demonstrators . The court noted that this evidence did not contain any information specifically concerning the applicant , and was therefore irrelevant .","DATE . On DATE ORG convicted the applicant of organising mass disorder and use of violence against the police , and sentenced him to CARDINAL years\u2019 imprisonment .","The applicant lodged an appeal , complaining , inter alia , that ORG had conducted the proceedings unfairly and had relied only on the evidence provided by police officers . On DATE ORG dismissed the appeal and upheld ORG judgment . On DATE ORG upheld the lower courts\u2019 judgments .","The applicant was an active member of ORG . He was an election observer during the presidential elections of DATE .","On DATE the applicant was taken from his home to a police station and questioned . He told the police that during the events of CARDINAL DATE he had not been present in FAC but had been in another part of the city . He was then allowed to leave the police station .","NORP However , on DATE he was arrested and accused of resisting the police when he had been called to the police station to testify about the events of DATE . The applicant was brought before a judge of ORG who , on DATE , found the applicant guilty of resistance to the police under LAW , and sentenced him to CARDINAL days\u2019 \u201c administrative detention \u201d .","On DATE , the applicant was taken to ORG of ORG ( \u201c the ORG \u201d ) where he was asked questions about his role in the events of DATE . According to the applicant , the interrogators beat him and burned him with cigarettes . He was held in the ORG until DATE . He stated that throughout his detention he was ill - treated by various means , such as beating , crushing his fingers and toes , and burning his skin with cigarettes .","On DATE the applicant was taken to ORG for interrogation , but refused to testify because his lawyer was absent . He was taken back to the ORG .","The applicant was charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d . On DATE the applicant was taken to an unspecified district court , which remanded him in custody for DATE . The applicant was not represented by a lawyer during this hearing . Following this , the applicant was transferred from the ORG \u2019s detention facility to ORG no . CARDINAL .","The applicant was tried at ORG with CARDINAL others ( ORG ) , CARDINAL of whom was another applicant in this case , Mr PERSON ( see section C. above ) . It appears that during the trial he was represented by a ORG - appointed lawyer . In his submissions to the court , the applicant maintained that he was not in FAC on DATE .","Some of the facts concerning the trial and witnesses heard by the court have been described above ( see paragraph CARDINAL above ) . As to the applicant \u2019s particular situation , the court heard statements from several police officers and CARDINAL civilian witness , who had been shown a photograph of the applicant during the pre - trial investigation and had identified him as CARDINAL of the demonstrators who had been throwing stones at the police officers during the events of CARDINAL DATE . According to the applicant , those statements were false and hearsay evidence . The witnesses gave the same statements during the trial . According to the applicant , he was not given an opportunity to confront the witnesses during the pre - trial investigation . According to the ORG , he was given an opportunity to confront them at the trial hearings .","According to the applicant , during the trial , he requested the court to hear CARDINAL witnesses who could confirm that he was not in FAC on DATE . However , the court heard CARDINAL of these witnesses and refused to hear the other CARDINAL .","The applicant also complained before ORG that he had been ill - treated during his detention in the ORG \u2019s detention facility . The court requested that the applicant be medically examined by a forensic expert . The forensic report of DATE found a dark bruise on CARDINAL of the fingers of the applicant \u2019s left hand and CARDINAL dark spots on his belly . The expert estimated that the bruise on the finger had most likely been caused by a hard blunt object DATE before , while the dark spots on the belly could be considered marks of burns which had been inflicted DATE before . The court also had regard to a letter from ORG . CARDINAL , dated DATE , stating that no injuries had been observed on the applicant \u2019s body when he was transferred to ORG . CARDINAL on DATE . The court concluded that the applicant \u2019s allegations that he had been ill - treated in the ORG \u2019s detention facility during the period DATE and DATE were not supported by the available evidence .","On DATE ORG found the applicant guilty of both the charges against him and sentenced him to CARDINAL years\u2019 imprisonment .","Following an appeal by the applicant , on DATE ORG upheld ORG judgment of DATE . On CARDINAL DATE ORG upheld the lower courts\u2019 judgments .","Following a presidential pardon decree of CARDINAL DATE , the applicant was released from serving the remainder of his sentence .","The applicant was a member of ORG . During the presidential elections of DATE he was the chairman of the GPE regional headquarters for ORG electoral campaign .","The applicant was in FAC on DATE . He went back to GPE on DATE , after the demonstration . In TIME of CARDINAL DATE he was taken to a local police station and questioned . In TIME of CARDINAL DATE he was taken to GPE , where he was detained in a police station until DATE .","On DATE the applicant was formally charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d . On DATE ORG remanded the applicant in custody for DATE . During the court hearing , the applicant was represented by a ORG - appointed lawyer whom he had not met before . The lawyer did not introduce himself to the applicant and did not talk to him . The applicant did not meet this lawyer again after the hearing of DATE .","The applicant was tried by ORG with CARDINAL others ( ORG ) . It appears that he was represented by a lawyer during the trial . In his submissions to the court , the applicant denied that he had personally taken part in any violence during the events of DATE , and claimed that he had left FAC as soon as he saw the first signs of confrontation between demonstrators and police . The court relied on statements from CARDINAL prosecution witnesses , mostly police officers and internal forces soldiers , who testified against all the demonstrators as a group , describing the public disorder which took place . During the pre - trial investigation , CARDINAL police officer and CARDINAL soldier were shown a photograph of the applicant and recognised him as CARDINAL of the demonstrators who had been throwing stones at the police officers during the events of DATE . According to the applicant , he was not given the opportunity to meet these witnesses during the pre - trial investigation or to cross - examine them during the trial . According to the Government , the applicant \u2019s lawyer had questioned them at the trial hearings .","DATE . On DATE ORG found the applicant guilty of both the charges against him and sentenced him to DATE and CARDINAL months\u2019 imprisonment .","On DATE ORG upheld this judgment . It appears from the case file that the applicant \u2019s lawyer , but not the applicant himself , was present at the appellate hearings . On DATE ORG upheld the lower courts\u2019 judgments . The applicant was sent the full text of ORG decision on DATE . According to the applicant , neither he nor his lawyer were present at any of the appeal hearings .","In accordance with a presidential pardon decree of DATE , the applicant was released from serving the remainder of his prison sentence . Despite his early release , in accordance with LAW , the applicant \u2019s conviction would remain on his criminal record for DATE after he was released .","In DATE the applicant made an application to ORG for early expunging of the conviction from his criminal record , in accordance with LAW , taking into account his good behaviour in prison and after release . On DATE the ORG refused this application . ORG and ORG upheld this decision on DATE and CARDINAL DATE respectively .","According to the applicant , he had intended to stand as a candidate in the parliamentary elections of DATE . However , under the electoral law , his recent conviction record precluded him from doing so .","The applicant was the chairman of several non - governmental organisations dealing with issues of civil society and freedom of religion , a chief editor of a magazine and an information portal , and a religious leader of a small congregation of NORP . During the presidential elections of DATE , he publicly supported PERSON .","The applicant was in FAC on DATE . According to him , he left the square prior to the eruption of violence between the demonstrators and the police , and observed the subsequent events from a distant location .","On DATE the applicant was leading public prayers in FAC . During the prayers , a number of police officers surrounded the mosque with the intention of arresting the applicant . The applicant managed to avoid arrest with the aid of some \u201c members of the international community \u201d in GPE who , according to the applicant , included representatives of the LOC , ORG and some foreign embassies . He was taken to the NORP embassy , where he remained for DATE .","DATE . According to the applicant , on DATE , state television reported that all the \u201c organisers \u201d of the public disorder of DATE had been arrested , with the exception of the applicant and CARDINAL other person .","The applicant left the NORP embassy after receiving guarantees that \u201c no unlawful actions would be taken against him \u201d . Shortly thereafter , he attended a conference in GPE . According to the applicant , during his stay in GPE , it was reported on ORG television that \u201c having committed a crime , he fled the country \u201d . According to the applicant , a number of government officials , including ORG , were featured in those television reports .","On DATE the applicant was summoned to ORG . After some questioning , he was arrested in connection with the events of DATE .","On DATE the applicant was charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d . On DATE , at TIME , ORG remanded him in custody for DATE .","During DATE of detention the applicant was kept in a cold single cell , where he had to sleep on a metal bed without a mattress . He was then transferred to a cell which had previously been used for convicts awaiting the execution of their death sentence .","On DATE the Prosecutor General sent a letter to the Head of ORG in connection with the alleged unlawfulness of the use of FAC by the applicant \u2019s religious congregation , a matter which was not directly related to the criminal proceedings in the present case . However , among other things , the letter also contained the following statements :","\u201c ORG is conducting a criminal investigation under ORG CARDINAL , CARDINAL and CARDINAL in connection with the mass disorder in the city of GPE on DATE and DATE ...","It has been determined that PERSON took part in the mass disorder in GPE . \u201d","The applicant was tried by ORG with CARDINAL other defendants ( ORG ) . The court relied on statements from a large number of police officers , who testified against the defendants and the demonstrators in general . Most of those statements did not relate specifically to the applicant . CARDINAL police officers testified that they had seen the applicant at FAC and that they had heard from someone that the applicant had instructed some of his followers to go to the square . The court also relied on the pre - trial deposition of a witness who failed to appear at the court hearings , despite the applicant \u2019s requests to cross - examine him . According to the applicant , written depositions from some prosecution witnesses were identical , word for word . The court refused to hear the majority of witnesses who had been called by the applicant to testify on his behalf .","On DATE ORG convicted the applicant under ORG CARDINAL and CARDINAL of LAW . He received a suspended sentence of DATE imprisonment and was released immediately from the courtroom .","On DATE ORG upheld this judgment . According to the applicant , the appellate hearing took place in the presiding judge \u2019s office in the applicant \u2019s absence , despite his request for the hearing to be postponed owing to his inability to attend because of illness . The hearing lasted TIME .","On DATE ORG dismissed the applicant \u2019s cassation appeal . According to the applicant , the hearing in ORG lasted TIME .","The applicant was in FAC on DATE . In TIME of the same day he was arrested after he had returned home from the demonstration , and was taken to a local police station . He was then questioned , with no lawyer present , and detained at the police station until DATE .","On DATE the applicant was formally charged with \u201c organising or participating in public disorder \u201d and \u201c use of violence against public officials \u201d . On DATE ORG remanded the applicant in custody for DATE . During the court hearing the applicant was represented by a ORG - appointed lawyer he had not met before .","The applicant was tried at ORG with CARDINAL others ( ORG ) . It appears that he was represented by another ORG - appointed lawyer during the trial . In his submissions to the court , the applicant denied taking part personally in any violence that had taken place during the events of DATE , and claimed that he had left FAC as soon as he saw the first signs of confrontation between demonstrators and the police .","During the trial , ORG relied on statements from a number of police officers and internal forces soldiers as witnesses who testified against the demonstrators . Several police officers testified that they had seen the applicant in FAC . During the pre - trial investigation QUANTITY police officers had been shown a photograph of the applicant and recognised him as CARDINAL of the demonstrators throwing stones at the police officers during the events of DATE . These police officers gave the same testimony during the trial . According to the applicant , he was not given the opportunity to meet these witnesses during the pre - trial investigation , or to cross - examine them during the trial .","On DATE ORG found the applicant guilty of both the charges against him and sentenced him to CARDINAL years\u2019 imprisonment , suspended , with a DATE probation period . The court ordered that he be released after the conviction became final following any appeals .","Following an appeal by the applicant , on CARDINAL May CARDINAL ORG upheld ORG judgment of DATE . On CARDINAL DATE ORG upheld the lower courts\u2019 judgments . The applicant was sent the full text of ORG decision on DATE .","Although the applicant was released because the sentence was suspended , his conviction would remain on his criminal record for a period of DATE . According to the applicant , he had intended to stand as a candidate for the parliamentary elections of DATE . However , under the electoral law , his recent conviction record precluded him from doing so .","In DATE the applicant made an application to ORG for early expunging of the conviction from his criminal record . On DATE ORG refused this application , noting that in accordance with LAW it was only possible for such a conviction to be expunged after the expiry of CARDINAL the probation period , which in the applicant \u2019s case had not yet happened . ORG and ORG upheld this decision on DATE and DATE respectively . The full text of ORG decision of DATE was sent to the applicant on CARDINAL DATE .","Article CARDINAL of the ORG provides :","Article CARDINAL . Deliberate non - compliance with the lawful order of a police officer or military serviceman","\u201c CARDINAL . Deliberate non - compliance [ by individuals ] with the lawful orders of a police officer or military serviceman while the latter is carrying out his duties of protection of public order \u2013","Article CARDINAL of the Criminal Code provides :","Article CARDINAL . NORP Mass disorder","\u201c CARDINAL . Organising or participating in mass disorder involving acts of violence , plunder , arson , destruction of property , use of firearms or explosives , or armed resistance to public officials \u2013","is punishable by imprisonment for a period of DATE .","Inciting active resistance to lawful orders of public officials and to mass disorder and violence against citizens \u2013","is punishable by imprisonment for a period of DATE .","Article CARDINAL of the Criminal Code provides :","Article CARDINAL . Resistance to or use of violence against public officials","\u201c CARDINAL . Use of violence against , or violent resistance to , a public official in connection with the performance of his or her duties , or acts or threats of violence towards relatives of [ such a public official ] , which do not pose danger to life or health \u2013","is punishable by imprisonment for a period of DATE .","Use of violence towards persons mentioned in LAW endangering their life or health \u2013","is punishable by imprisonment for a period of DATE . \u201d","Under LAW ( \u201c the CCrP \u201d ) , the finding of a violation of the provisions of LAW by ORG is a ground for reopening the proceedings . Pursuant to LAW , in this case , the Plenum of the ORG examines the case exclusively on points of law . After the examination of the case , the Plenum of ORG may decide to quash the lower ORG rulings and remit the case to the relevant lower court , or to vary the decision of the courts of cassation or other courts , or to quash the decision of the courts of cassation or other courts and deliver a new decision ( LAW CCrP ) .","According to Articles DATE and CARDINAL.CARDINAL.CARDINAL of LAW , persons imprisoned pursuant to a final court judgment and persons convicted of criminal offences indicated in Articles CARDINAL and CARDINAL of LAW do not have a right to stand for election in parliamentary , presidential and municipal elections ( see also paragraph CARDINAL below ) .","Article CARDINAL of the Criminal Code classifies criminal offences by degree of gravity into offences which do not pose a major public threat , \u201c less serious \u201d criminal offences , serious criminal offences and especially serious criminal offences . According to Article CARDINAL , a \u201c less serious criminal offence \u201d is an offence committed deliberately or negligently for which the maximum punishment does not exceed CARDINAL years\u2019 imprisonment . According to Article CARDINAL , a \u201c serious criminal offence \u201d is an offence committed deliberately or negligently for which the maximum punishment does not exceed CARDINAL years\u2019 imprisonment . According to LAW , an \u201c especially serious criminal offence \u201d is an offence committed deliberately for which the punishment exceeds CARDINAL years\u2019 imprisonment .","The maximum sentence for a criminal offence under LAW is DATE imprisonment ( see paragraph CARDINAL above ) ; accordingly , pursuant to Article CARDINAL of the same Code , it is considered a \u201c serious criminal offence \u201d .","According to Article CARDINAL of LAW , a person convicted pursuant to a final court judgment is considered a \u201c convicted person \u201d from the date the judgment enters into force until the date the conviction is expunged from his or her criminal record . According to LAW , the criminal conviction of a person convicted of a \u201c serious criminal offence \u201d is expunged after the expiry of a period of DATE from the date he or she completed serving the sentence imposed . Article PERSON provides that a conviction may be expunged earlier if an application is made and he or she is able to demonstrate exceptionally good behaviour following conviction .","Extracts from the report by ORG ) , on ORG in GPE DATE ( \u201c the OSCE Report \u201d ) , containing detailed observations by the ORG trial monitors concerning various deficiencies in the trials concerning the events of DATE , have been previously extensively quoted in the GPE and Others judgment ( cited above , \u00a7 \u00a7 DATE ) .","Extracts from a number of reports by international bodies and human rights NGOs describing the violent clashes between demonstrators and law - enforcement authorities during the events of CARDINAL and DATE have previously been quoted in the PERSON judgment ( cited above , \u00a7 \u00a7 DATE ) .","ORG . Among other similar reports by international NGOs , the report by ORG , Violence and GPE \u2019s Elections ( DATE Vol . CARDINAL , No . DATE ) ) , contains lengthy summaries of numerous first - hand accounts by persons arrested in connection with the events of CARDINAL and DATE concerning the alleged acts of torture and ill - treatment they had been subjected to while in detention . The relevant statements were made by the alleged victims in interviews personally conducted by ORG researchers during the organisation \u2019s CARDINAL missions to GPE DATE ."],"violated_articles":["6","P7"],"violated_paragraphs":["6-1","6-3","P7-4"],"violated_bulletpoints":["6-3-b","6-3-c","6-3-d"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58561","languageisocode":"ENG","respondent":"GRC","branch":"GRANDCHAMBER","date":2000,"docname":"CASE OF THLIMMENOS v. GREECE","importance":1,"conclusion":"Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (estoppel);Violation of Art. 14+9;Not necessary to examine Art. 9;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Luzius Wildhaber","text":["On DATE ORG ( PERSON ) , composed of CARDINAL career military judge and CARDINAL other officers , convicted the applicant , a GPE 's Witness , of insubordination for having refused to wear the military uniform at a time of general mobilisation . However , the tribunal considered under LAW ( b ) of LAW and under LAW ( a ) of LAW that there were extenuating circumstances and sentenced the applicant to DATE imprisonment . The applicant was released on parole after DATE and DATE .","NORP In DATE the applicant sat a public examination for the appointment of CARDINAL chartered accountants , a liberal profession in GPE . He came second among CARDINAL candidates . However , on CARDINAL DATE ORG of ORG ( hereinafter \u201c the Board \u201d ) refused to appoint him on the ground that he had been convicted of a serious crime ( kakuryima ) .","On CARDINAL DATE the applicant seised ORG ( Simvulio Epikratias ) invoking , inter alia , his right to freedom of religion and equality before the law , as guaranteed by LAW and the Convention . The applicant also claimed that he had not been convicted of a crime but of a less serious offence .","On DATE ORG held a hearing . On DATE it decided to refer the case to the plenary court because of the important issues it raised . The ORG 's own view was that LAW no . CARDINAL\/CARDINAL provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant . Moreover , according to LAW , no person convicted of a serious crime could be appointed to the civil service . However , this provision referred to convictions by courts established in accordance with LAW . This was not the case with the permanent military courts , because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues , as envisaged by LAW . As a result , the applicant 's conviction by ORG could not be taken into consideration and the ORG 's decision not to appoint the applicant a chartered accountant had to be quashed .","On DATE a hearing was held before ORG , sitting in plenary . On DATE the court decided that ORG had acted in accordance with the law when , for the purposes of applying LAW of ORG Code , it had taken into consideration the applicant 's conviction for serious crime by ORG . LAW provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition . Such a law had not yet been enacted . ORG further decided to refer the case back to ORG and ordered it to examine the remaining issues .","NORP The decision of CARDINAL DATE was taken by a majority . The minority considered that , since DATE had passed since the LAW had entered into force without the law envisaged in LAW thereof having been enacted , the guarantees of independence required from civilian judges had to be afforded by the existing military courts . Since that was not the case with ORG , PERSON application for judicial review had to be allowed .","On DATE ORG held a further hearing . On DATE it rejected PERSON application for judicial review , considering , inter alia , that the ORG 's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence .","Until DATE only members of ORG could provide chartered accountants ' services in GPE .","DATE no . CARDINAL\/CARDINAL , as amended by LAW no . DATE , provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant .","According to LAW , no person convicted of a serious crime can be appointed to the civil service .","On DATE the monopoly of ORG was abolished . Most chartered accountants became members of ORG","Article CARDINAL of LAW in force until DATE provided :","\u201c A member of the armed forces who , having been ordered by his commander to perform a duty , refuses or fails to execute the order shall be punished \u2013","( a ) if the act is committed in front of the enemy or armed insurgents , with death ;","( b ) in times of war or armed insurgency or during a state of siege or general mobilisation , with death or , if there are extenuating circumstances , with life imprisonment or imprisonment of DATE and","( c ) in all other circumstances , with imprisonment DATE . \u201d","By virtue of Presidential Decree no . CARDINAL\/CARDINAL , at the time of the applicant 's arrest GPE was deemed to be in a state of general mobilisation . This decree is still in force .","Article CARDINAL \u00a7 CARDINAL ( a ) of LAW provides that a lesser penalty shall be imposed on persons who , prior to the crime , had led an honest life .","Under LAW in force until DATE , offences punishable with a sentence of DATE imprisonment were considered to be serious crimes ( PERSON ) . Offences punishable with a sentence of DATE imprisonment were considered misdemeanours ( plimmelimata ) .","Under the new Military Criminal Code of DATE insubordination not committed in time of war or in front of the enemy is considered a misdemeanour .","Under section CARDINAL ) of PERSON no . CARDINAL\/CARDINAL , those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service , that is , DATE .","Law no . DATE , which entered into force on DATE , gives conscientious objectors the right to perform civilian , instead of military , service . Under section CARDINAL ) and ( CARDINAL ) of this law , persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors . CARDINAL of the effects of such recognition was having the conviction expunged from one 's criminal record .","Applications under section PERSON ) and ( CARDINAL ) of PERSON no . CARDINAL\/CARDINAL had to be lodged within DATE starting from DATE . They were examined by the commission that advises the Minister of ORG on the recognition of conscientious objectors . The commission had to apply section CARDINAL of Law no . CARDINAL , which provides :","\u201c Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ... \u201d"],"violated_articles":["14","6","9"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101888","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2010,"docname":"JOESOEBOV v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["NORP The applicant , Mr PERSON , was born in GPE in DATE and is currently living in the GPE . At the time of the introduction of the application he stated that he was an NORP national . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Deputy Agent , PERSON , of ORG .","NORP The facts of the case , as submitted by the parties and some of which are in dispute , may be summarised as follows .","On DATE , the applicant reported to the GPE authorities for the purposes of seeking asylum . During his interviews with the GPE immigration authorities in the course of which he objected to assistance by an NORP - speaking interpreter and chose to be assisted by a GPE interpreter , he stated that he was an NORP national , that he was born in GPE \u2013 then a part of the former GPE \u2013 and that he was of NORP ethnic origin . The applicant \u2019s parents and CARDINAL adult siblings , who were all born in GPE , were living in GPE .","On DATE , the applicant filed a formal asylum request and the immigration authorities conducted a first interview with him on DATE . On DATE the applicant filed a written account of his reasons for seeking asylum . He submitted an addition to this written account on DATE . The immigration authorities conducted a second interview with the applicant on DATE . By letter of DATE , the applicant availed himself of the possibility to submit corrections and additions to the report of this second interview .","The applicant gave the following account in support of his asylum application . He had lived in GPE until DATE and in GPE from DATE until DATE . He had received military training from DATE in GPE . In DATE , following the upheaval in GPE , the applicant went to live in GPE , where he served in ORG in an anti - terrorism unit , which also specialised in combating organised crime . The applicant participated in a number of operations .","NORP In DATE the applicant was involved in an incident in the context of a professional assignment which resulted in him being imprisoned . He was released after DATE following a changeover in power .","The applicant resumed his work for ORG , in which he was , amongst other things , involved in arresting people and handing these over to the ORG \u2019s investigation department , and in an undercover anti - corruption operation . He left the ORG in DATE .","NORP Over DATE , the applicant had become increasingly disillusioned and frustrated with the political system and the way the department where he worked was being used to suppress democracy . That department was supposed to battle terrorism and foreign interventions , but in practice it was used to arrest innocent civilians who stood in the way of a corrupt Government . He twice tried to resign but this was not accepted . In DATE his boss told him people could only leave the service if they retired or died . After this , his life became unbearable . His colleagues no longer trusted him . He had never held his own passport . ORG had held \u2013 but never given to him \u2013 a service passport for him which had been used by others on his behalf during a short stay in GPE in DATE . He was very scared as there was nothing more powerful than ORG so he could turn to no - one for protection . He feared the Ministry was looking for a reason to accuse him of something .","The applicant left GPE on DATE , because on DATE he was informed by a friend employed by ORG that he was wanted in connection with a failed attack on a rebel leader in DATE . The applicant claimed that he was being searched for by the authorities of GPE and also that he risked a lengthy term of imprisonment because he had left ORG and GPE without permission and was thus considered to be a deserter .","On DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant \u2019s asylum request and , after an ex officio examination , further held that there were no reasons to grant the applicant a residence permit for compelling reasons of a humanitarian nature .","On DATE the applicant lodged an objection ( bezwaar ) against this decision . He filed additional grounds for his objection and further documents in substantiation of his account by letters CARDINAL and DATE , DATE , CARDINAL and DATE , CARDINAL DATE , DATE and DATE .","On DATE , the applicant requested ORG ( rechtbank ) of GPE to order a stay of expulsion by way of a provisional measure ( voorlopige voorziening ) pending the proceedings on his objection . This request was granted on DATE by the provisional measures judge ( voorzieningenrechter ) of ORG of GPE , sitting in GPE , who ordered that the applicant should not be expelled from the GPE until DATE after the determination of his objection .","NORP By letter of DATE the applicant filed further additional grounds for his objection . On DATE , he was heard on his objection before an official board of inquiry ( ambtelijke commissie ) .","On DATE the Minister for ORG ( Minister PERSON Integratie ) , the successor to the Deputy Minister of ORG since DATE , informed the applicant that his statements gave cause to suspect that LAW DATE LAW relating to ORG ( \u201c the DATE LAW ) might be applicable to his case , and that for that reasons his case had been transferred to \u201c Unit CARDINAL \u201d . Unit CARDINAL is a team of specialists within ORG ( Immigratie- en ORG , \u201c IND \u201d ) who examine cases in which LAW may be applicable .","NORP By letter of DATE , the applicant informed the ORG that he considered the decision of DATE as unlawful and unjust , and urged a speedy determination of his asylum claim .","On DATE the applicant submitted translations of a number of documents further to substantiate his account . On DATE the immigration authorities conducted an additional interview with the applicant which mainly concerned the nature of his work for ORG , and he was given the possibility to submit corrections and additions to the report of this interview . By letter of DATE the applicant stated he did not wish to do so .","On DATE the Minister for ORG rejected the applicant \u2019s objection and maintained the negative decision of the asylum request by holding LAW against the applicant on account of his work for ORG , which decision was based on the prescribed and so - called \u201c personal and knowing participation \u201d test . In this decision , the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request ( tijdsverloop in de asielprocedure ) . The applicant \u2019s objection against the latter aspect of the decision of DATE was rejected by the Minister on DATE . On DATE the applicant filed an appeal with ORG of The Hague .","The applicant \u2019s appeal against the decision of DATE ( concerning his asylum request ) , as supplemented by him on CARDINAL and DATE DATE , CARDINAL DATE , CARDINAL and DATE and CARDINAL and DATE , was heard on DATE before ORG of The Hague , sitting in GPE .","In its judgment of DATE , ORG found that the Minister had correctly held LAW applicable to the applicant but quashed the impugned decision for lack of sufficient reasoning in that it did not appear from that decision whether the Minister had examined whether LAW would lastingly ( duurzaam ) stand in the way of expulsion and , if so , whether a continuous withholding of a residence permit would not be disproportionate . Accordingly it quashed the decision of DATE and ordered the Minister to take a fresh decision on the applicant \u2019s objection .","On DATE , ORG rejected in a separate judgment the applicant \u2019s appeal of DATE .","On DATE , an additional hearing on his objection of DATE was conducted with the applicant before an official board of inquiry , including the question whether his expulsion to GPE would be contrary to LAW .","On DATE the applicant was notified in person of the Minister \u2019s intention to declare him an undesirable alien entailing the imposition of an exclusion order , and he was given the opportunity to respond to this . He did so in person on DATE , as well as by letters of CARDINAL and DATE .","By decision of DATE , the Minister declared the applicant an undesirable alien and imposed the pertaining exclusion order . The Minister noted that the applicant had been denied asylum in application of LAW and that , in its judgment of DATE , ORG of The Hague had accepted that decision as correct . The Minister held that the application of LAW against the applicant stood in the way of his being granted a residence permit since he was to be considered as a danger to public order and that his exclusion from the GPE was also in the interest of the Netherlands\u2019 international relations . The Minister lastly found that there were insufficient grounds for assuming that the applicant , if removed to his country of origin , would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by LAW .","In a separate decision also taken on DATE , the Minister rejected the applicant \u2019s objection of DATE . She maintained her decision to hold LAW against the applicant . As regards LAW , the Minister did not find it established that the applicant , if returned to his country of origin , would be exposed to a real risk of being subjected to treatment prohibited by the this provision .","NORP The Minister noted that the applicant had not submitted any documents in support of his claim that he was searched for by the NORP authorities for having abandoned his work for the national security agency in DATE . The Minister further noted that the applicant had submitted CARDINAL documents , issued by the authorities of GPE , allegedly showing that he was being searched for in GPE . CARDINAL document was a protocol , drawn up by the police on DATE , relating to the opening of a criminal inquiry into the commission of the offence defined in section CARDINAL of the NORP LAW which concerns \u201c illegal extraction of fish and other water animals \u201d . The other document was a summons dated CARDINAL DATE , ordering the applicant to hand in on that DATE his passport at police station no . CARDINAL , failing which he would be held liable under LAW of LAW Criminal Code which concerns \u201c burglary \u201d defined as obtaining through violence property not belonging to the perpetrator . The Minister considered that , apart from the odd and unexplained fact that both documents had been drawn up in DATE whereas the applicant had already left GPE in DATE , these documents did not tally with the applicant \u2019s asylum account to the effect that he risked treatment in breach of LAW of having left his work without permission or for his involvement in the failed attack on the rebel leader in DATE . In so far as the applicant further claimed that he risked such treatment because the NORP authorities assumed that he was keeping contacts with CARDINAL of his former superiors who were residing abroad and who were planning to seize power in GPE , the Minister found that this had remained wholly unsubstantiated and was based on speculations by the applicant . The Minister further rejected as unsubstantiated and not plausible the applicant \u2019s claim that his relatives were encountering problems from the side of the authorities of GPE in order to exert pressure on the applicant .","On DATE , the applicant filed an objection with the Minister against the decision to impose an exclusion order on him . On DATE , he filed an appeal with ORG of The GPE against the rejection by the Minister of his objection of DATE .","By judgment of CARDINAL DATE and after a hearing held on DATE , the provisional measures judge of ORG of The Hague , sitting in GPE , rejected as unfounded the applicant \u2019s appeal of DATE and his pertaining request for an interim measure . The judge noted that , in its ruling of CARDINAL DATE , ORG had already accepted the Minister \u2019s decision to hold LAW against the applicant . The provisional measure judge further accepted the Minister \u2019s finding that the applicant had not demonstrated that LAW would lastingly stand in the way of his expulsion . Referring to constant case law of ORG of ORG ( GPE bestuursrechtspraak PERSON ) , the provisional measures judge lastly held , in respect of the applicant \u2019s reliance on the right of respect for his private life within the meaning of LAW , that \u2013 given the strict separation under the provisions of LAW ( Vreemdelingenwet CARDINAL ) between an asylum based and a regular residence permit DATE that arguments based on DATE could not be entertained in asylum proceedings but should be made in proceedings on a request for a regular residence permit .","In a separate ruling handed down on DATE , the provisional measures judge of ORG also rejected the applicant \u2019s request for a provisional measure ( stay of expulsion ) for the duration of the proceedings on his objection against the decision to impose an exclusion order on him .","On DATE , the applicant filed an appeal with ORG against the judgment of CARDINAL DATE in which his appeal of DATE had been rejected . On DATE , ORG declared itself not competent to examine this appeal , pursuant to LAW . It noted that the proceedings concerned a decision which had been taken before the entry into force on DATE of LAW , replacing LAW DATE . Under the latter Act no further appeal lay against a ruling of ORG in asylum proceedings .","On DATE , the applicant was placed in GPE detention for removal purposes ( vreemdelingenbewaring ) . In a ruling given on DATE , in unsuccessful appeal proceedings taken by the applicant concerning his placement in GPE detention , ORG of The Hague noted that the NORP authorities had refused to issue a laissez - passer to the applicant and held that the GPE authorities should be given the opportunity to try to obtain the issuance of a laissez - passer from the authorities of GPE , given the fact that the applicant had been born there .","On DATE , the Minister rejected the applicant \u2019s objection against the decision to impose an exclusion order on him . The applicant \u2019s appeal against this decision , including arguments based on LAW , was rejected on DATE by ORG of The Hague , sitting in GPE . Although the applicant could have appealed this decision before ORG , he did not do so .","Article CARDINAL of the DATE LAW , as amended by LAW of DATE provides as follows :","\u201c The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :","( a ) he has committed a crime against peace , a war crime , or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes ;","( b ) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee ;","( c ) he has been guilty of acts contrary to the purposes and principles of ORG . \u201d","The application was introduced on DATE and registered on DATE .","On DATE , at the applicant \u2019s request , the President of the Third Section decided under Rule CARDINAL of ORG to indicate to ORG not to expel the applicant pending the proceedings before the ORG . The President further decided , under LAW ( b ) of ORG , to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits .","On the basis of the applicant \u2019s stated nationality , the Government of GPE were invited , pursuant to LAW , to inform the ORG whether they wished to exercise their right to submit written comments . On DATE , ORG informed the ORG that they wished to avail themselves of that right . The applicant and the respondent Government were informed accordingly .","On DATE , the respondent Government informed ORG proceedings still pending on the applicant \u2019s challenge of the decision to impose an exclusion order on him , and requested leave to submit their observations after a final decision in these proceedings had been given . On DATE , the President accepted this request and fixed a new time - limit for the submission of the observations by ORG , namely within DATE after the final decision in the proceedings referred to by the Government .","On DATE , ORG requested a further extension until DATE of the time - limit to file observations . They explained that , as the applicant had not availed himself of the possibility to file an appeal with ORG against the ruling of CARDINAL DATE of ORG of GPE , sitting in GPE , the latter judgment had become final on CARDINAL DATE implying that the ORG should file their observations within DATE from DATE . On DATE , the President acceded to this request .","The Government \u2019s observations were submitted DATE . The applicant \u2019s observations in reply were submitted on DATE . In those observations in reply , the applicant denied that he was a citizen of GPE and claimed that he was stateless .","On DATE , the President invited the Government of GPE to inform the ORG whether or not the applicant was a national of GPE and , provided they would acknowledge that citizenship , to file any written comments they wished to make on the issues arising in the case .","NORP On DATE , the Government of GPE informed the ORG that the applicant was not a national of GPE but nevertheless submitted written comments .","On DATE , ORG were informed that , as the applicant was not a citizen of GPE , they were not automatically entitled to intervene as a third party in the proceedings on the basis of Article CARDINAL \u00a7 CARDINAL of the Convention but , given that their comments were mainly of a factual nature , that the President had interpreted their letter of DATE as a request for leave to intervene within the meaning of Article CARDINAL \u00a7 CARDINAL of the ORG and had granted this request .","On DATE , the respondent Government , the applicant and the Government of GPE were invited to submit further information of a factual nature , and the President further accepted the respondent Government \u2019s request for leave to submit additional observations .","On DATE , ORG submitted the requested factual information . The respondent Government and the applicant filed additional submissions on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88690","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"PAY v. THE UNITED KINGDOM","importance":2,"conclusion":"Inadmissible","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , a non - governmental organisation based in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant joined ORG ( \u201c LOC ) in DATE . He quickly became involved in the treatment of sex offenders and was well regarded by his employers and the courts in respect of this work .","In DATE , probation officers were sent a form in which they were asked to declare whether or not they were freemasons . The applicant stated that he was not a freemason but listed a number of other organisations of which he was a member , including \u201c The ORG of Roissy \u201d . This organisation subsequently became \u201c ORG \u201d ( hereafter , \u201c PERSON \u201d ) , of which the applicant was a director .","On DATE ORG received an anonymous fax , in which it was claimed inter alia that PERSON advertised its services on the internet as the builder and supplier of products connected with bondage , domination and sadomasochism ( \u201c BDSM \u201d ) and the organiser of BDSM events and performances . The fax included a photograph of the applicant , wearing a mask , with CARDINAL semi - naked women .","On DATE the fax was sent by a police officer to CARDINAL of the applicant \u2019s colleagues , who brought it to the attention of ORG senior management . ORG undertook an investigation , and found that PERSON was registered at the applicant \u2019s address and that its website included links to a number of BDSM websites , including \u201c ORG \u201d ( \u201c BB \u201d ) , which advertised various events and included photographs of the applicant and others , semi - naked , performing acts which the accompanying text indicated had taken place at a local private CARDINAL club and involved male domination over submissive women .","The applicant was immediately suspended on full pay , on the ground that ORG had reason to believe that the above activities might be incompatible with his role as a probation officer and bring ORG into disrepute . The applicant admitted that he was involved in the performance aspect of PERSON \u2019s activities but claimed that he had never authorised photographs of himself of the type included in the fax to be published on the internet and that the owners of the ORG website had now removed the photographs at his request . Although the ORG official carrying out the investigation considered that the photographs were in the nature of soft pornography and depicted acts which were degrading to women , the applicant disagreed . The investigating official concluded that the applicant was unwilling to accept that his involvement in activities of this nature was inappropriate . She made a report to the ORG Assistant Chief Probation Officer .","The Assistant Chief Probation Officer reviewed the report and concluded that while the PERSON website itself did not contain photographs of sexual activity it was linked to other websites which did . She considered that the activities shown on the ORG website were indecent and exploitative . Although she took into account the rights contained in ORG CARDINAL of the LAW , and the applicant \u2019s DATE of service , she formed the view that the applicant had acted in a way which was incompatible with his job working with sex offenders and vulnerable people . She considered that the information shown on the website could be \u201c badly misinterpreted \u201d .","On DATE ORG commenced disciplinary proceedings against him . Following a hearing before the Panel of ORG ( \u201c the NORP \u201d ) on DATE , the applicant was formally dismissed on DATE . The ORG , which accepted that the applicant \u2019s activities were not contrary to criminal law , considered , however , that , given the nature of the acts shown in the internet photographs and referred to in the PERSON advertisements , the fact that this material was in the public domain was incompatible with his position as a probation officer , particularly an officer working with sex offenders . They held that ORG had a responsibility to the public to maintain confidence in the integrity of its officers and that public knowledge of the applicant \u2019s activities would damage the reputation of the Service .","The applicant \u2019s appeal to a differently constituted Panel was dismissed on DATE . The ORG considered whether the applicant should be given alternative employment within ORG , but took the view that such a proposal would be inappropriate given the conclusion that his activities had been found to be incompatible with the role of any probation officer .","On DATE the applicant commenced proceedings in ORG ( \u201c ET \u201d ) to challenge his dismissal . In its judgment of DATE , following a hearing which concluded in DATE , the ORG made the following findings of fact :","\u201c It was clear having listened to extensive evidence from the respondent \u2019s witnesses , and which was probed in great depth on behalf of the applicant , that the investigating officers and the disciplinary and appeal panel had very grave concerns that the activities of the applicant were incompatible with his role as a probation officer . Throughout his interviews the applicant sought to justify his activities and did not accept that these activities could be incompatible with his role as a probation officer . On each interview he sought to justify himself and was not prepared to accept that the view of his employers was a reasonably held view . It was only at a very late stage that he even suggested that he would be willing to take steps to have references to ORG website removed . \u201d","The ORG continued :","\u201c Great play was made on behalf of the applicant that the approach of the respondents , both with its investigating officers and the disciplinary panels , were prudish and narrow - minded . ... The [ ET ] heard from various witnesses of their concern as to the consequences if the applicant \u2019s activities came more fully into the knowledge of the general public . There was a concern for the general reputation of ORG but there was equally a concern as to the effect of these activities upon victims of crime and in particular victims of sex crime as well as on offenders who were receiving the help of the Probation Service \u201d .","The ORG concluded that the dismissal fell within the range of responses of a reasonable employer . It further concluded that LAW was not engaged because the activities in question were in the public domain and did not therefore form part of Mr Pay \u2019s private life . Article CARDINAL was engaged , but not infringed . The ET recognised that an employee owed duties to his employer and that the conduct of the employee should not bring the work of the employer into disrepute . The work of ORG was sensitive and it was important that employees did not bring into the public domain views or activities which could have an adverse impact . It was not therefore incompatible with Article CARDINAL to place some limitation on a probation officer \u2019s freedom of expression and it was reasonable of the ORG to have taken the view that the activities of the applicant , taken in the round , could be damaging to it and needed to be curbed .","The applicant appealed to ORG ( \u201c EAT \u201d ) which dismissed the appeal in a judgment dated DATE . The ORG found that LAW was not applicable and saw no error in the ORG \u2019s judgment to that effect . In considering the proportionality of the dismissal under LAW , the ORG observed that the ORG had found as a fact that throughout the disciplinary proceedings the applicant had not been prepared to accept that his ORG view of his activities had been reasonable and had only offered at a very late stage to take steps to have references to the ORG website removed . The ORG continued :","\u201c That finding reflects a dispute which arose at the [ ET ] . It was contended before us that the Respondent had not demonstrated that it was a proportionate response for it to dismiss the Applicant when it could have considered his severing his connections to PERSON , and opportunities for alternative work . Taking those in turn , the finding of the [ ET ] is amply borne out by the evidence ...","It is plain that there had been discussion between the Respondent and the Applicant about his willingness to sever his connection with PERSON entirely ; but that his case was that only certain electronic links between PERSON and the ORG websites had been severed . He was at no time willing to alter his connection with PERSON . That is consistent with the finding that he sought to justify his activities .","As to the possibility of alternative deployment , the respondent considered that his activities were inconsistent with any Probation Officer \u2019s duties . ... Given the finding that the PERSON was unwilling to give up his connection with PERSON , and the Respondent \u2019s attitude to PERSON \u2019s activities , the possibility of alternative work would not logically arise . \u201d","The ORG concluded that ORG had committed no error of law when it decided that the dismissal had been proportionate under LAW . On the issue of delay the ORG commented :","\u201c Something must be said about the delays in this case . The applicant \u2019s cause of action arose when he was dismissed on DATE . He presented an ORG on DATE and so a period of DATE elapsed before the ORG gave its decision . LAW in its original form was lodged on DATE and we are giving judgment over DATE . Without a convincing explanation , these delays would be unacceptable . However , neither party makes any criticism of the other , nor is there any criticism by them of ORG or of the ORG . In those circumstances it is inappropriate for us to add anything . \u201d","On DATE the applicant filed notice of an application to seek leave to appeal to ORG . This application was filed outside the DATE time - limit and was rejected on DATE . He made a renewed application , claiming that the delay had been caused by the fact that legal aid had not been granted until DATE . On CARDINAL DATE ORG provisionally granted the applications for leave to appeal and an extension of time , but allowed the respondent ORG days to oppose this order . Lord PERSON observed :","\u201c It seems to me that there is CARDINAL issue which is capable of engaging the attention of this court . Accepting , as the ORG did , that , in order to be fair , a dismissal has to be Convention compliant ... , it seems to me arguable that , properly appraised , the factors before ORG did not make it proportionate to dismiss Mr Pay , given that the dismissal was held to have been not for incapacity but for some other substantial reason . The substantive reason was , in effect , the damage that would be done to the good name and standing of ORG were it to become public that Mr Pay , working as he did with sex offenders and their victims , was involved in an activity involving bondage and sadomasochism .","The question is not unproblematical . Under LAW , it is debateable whether this is a matter of private life since the activities were publicised on the internet , but it does seem to me arguable that , to the extent that Mr GPE \u2019s own sexual proclivities were in issue , they related to his private life as much as to matters he had publicised .","What perhaps is more important is the proportionality of dismissal in a situation in which the dismissal was prompted not by considerations of personal unsuitability for the job , but by legitimate considerations of adverse publicity which would rebound on ORG . \u201d","Lord Justice PERSON had greater misgivings about the appeal \u2019s prospects of success but was prepared to grant leave on the above terms .","The respondent ORG opposed the applications . On DATE an identically constituted ORG issued a supplementary judgment , without the benefit of oral argument , in which it held that in the light of the full ORG judgment in PERSON Y ( see below ) , it now appeared that the applicant \u2019s appeal had no prospect of success and there could therefore be no useful purpose in granting the extension of time .","The applicant made a renewed oral application to ORG , which was rejected on DATE . ORG again refused to grant an extension , since the question of principle had been decided in GPE v. Y. In parallel with NORP v. Y , there had been a waiver or forfeiture of privacy , on different grounds but with the same legal effect . Article CARDINAL was not , therefore , engaged . Although Article CARDINAL was applicable , the ORG had been entitled to react as it did to the consequences for it of the applicant \u2019s exercise of his right to free speech .","Under section CARDINAL(CARDINAL ) of LAW DATE , an employee has the right not to be unfairly dismissed by his employer . By section CARDINAL(CARDINAL ) , an employer must show a reason for a dismissal falling within a category set out in section PERSON ) , which includes \u201c conduct \u201d or \u201c some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held \u201d .","Section CARDINAL(CARDINAL ) deals with fairness :","\u201c Where the employer has fulfilled the requirements of subsection ( CARDINAL ) , the determination of the question whether the dismissal is fair or unfair ( having regard to the reason shown by the employer ) \u2013","( a ) depends on whether in the circumstances ( including the size and administrative resources of the employer \u2019s undertaking ) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee , and","( b ) shall be determined in accordance with equity and the substantial merits of the case . \u201d","The applicant in the above case worked as a part time development officer for a charity which aimed to promote , through voluntary work , the personal development of young offenders and those at risk of offending in the CARDINAL age group . When the applicant had been working for the respondent charity for DATE , his employers discovered that DATE previously he had been arrested and cautioned by the police for having committed a consensual sexual act with another man in a public toilet . The caution came to light as a result of normal police checks made by ORG before providing further funding to the respondent . Disciplinary proceedings were taken against the applicant . He was dismissed and subsequently complained to the ET .","The ORG found that it had been fair and reasonable for the respondent to treat the applicant \u2019s conduct as grounds for dismissal . He had committed a criminal offence and shown an inappropriate lack of self control and serious lack of judgment . Given the sector in which he was employed , his failure to tell his employer about the caution was a serious matter which had undermined the respondent \u2019s trust and confidence in him .","The applicant appealed to the ORG , contending that his dismissal had breached his rights under LAW and CARDINAL of the LAW . The ORG held that LAW did not apply , as the conduct , a \u201c transitory sexual encounter \u201d between CARDINAL strangers in a public toilet , was not covered by the right to respect for private life . Article CARDINAL did not , therefore , apply , but even if it did , the applicant had not been dismissed on grounds of sexual orientation but instead because he had committed a criminal offence and failed to disclose it .","The applicant then appealed to ORG . ORG proposed a framework of questions to assist employment tribunals in dealing with Convention issues in unfair dismissal cases between private litigants , but held , on the facts of the case before it , that Article CARDINAL was not engaged , since X was dismissed for conduct which was a criminal offence and which occurred in a place to which the public had access .","Until its repeal on DATE , the duties and functions of probation officers were regulated by ORG . Section CARDINAL provided that :","\u201c It is the duty of probation officers \u2013","( a ) to supervise the probationers and other persons placed under their supervision and to advise , assist and befriend them ;","( b ) with a view to assisting the court in determining the most suitable method of dealing with a person \u2019s case , to enquire ( in accordance with any direction of the ORG ) into , and make reports on , his circumstances or home surrounding ;","( c ) to advise , assist and befriend , in such cases and in such manner as may be prescribed , persons who have been released from custody ; and","( d ) to perform such other duties as may be prescribed . \u201d","In its judgment in the present case , the ORG observed :","\u201c The modern probation service is a law enforcement agency at the heart of the criminal justice system . It aims to see that offenders receive proper punishment for their offending by the way they are supervised in the community . It works for the effective rehabilitation so they are less likely to offend in the future . Its objectives include ORG priorities which were to challenge offenders in their behaviour , to enforce community sentences rigorously and to reduce the risk of harm from dangerous offenders . Its responsibilities include the delivery of effective programmes for supervising offenders safely in the community and upholding the interests of the victims of crime . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57923","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1995,"docname":"CASE OF McMICHAEL v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Art. 6-1 (second applicant);Violation of Art. 8;No violation of Art. 14+6-1;No violation of Art. 14+8;Non-pecuniary damage - financial award;Lack of jurisdiction (injunction to State)","judges":"C. Russo;John Freeland","text":["ORG The first applicant , PERSON , and the second applicant , PERSON , live in GPE . They were born in DATE and DATE respectively and were married on DATE .","ORG On DATE the second applicant gave birth to a son , A. The first applicant , who was then known as PERSON , and the second applicant , were living together , although at that time each had their own home . At the time the second applicant expressly denied that the first applicant was PERSON \u2019s father . The child \u2019s father was not identified on the birth certificate .","ORG The second applicant had a history of severe and recurrent mental illness , diagnosed as manic depressive psychosis . She had first been ill in or DATE and had thereafter been compulsorily admitted to psychiatric hospitals on a number of occasions . While she and A. were still in hospital after the birth , PERSON , the consultant psychiatrist who had treated her since DATE , found that she was suffering from a recurrence of her mental illness . He considered that if she were to go home with A. , the child would be at risk . As a result , on CARDINAL DATE the social work department of ORG ( \" the ORG \" ) - this being the local government body having statutory responsibilities relating to the welfare of children in GPE and the surrounding area - applied for and were granted an order known as a \" place - of - safety order \" , in accordance with section CARDINAL ( CARDINAL ) of ORG ( GPE ) Act DATE ( \" the CARDINAL Act \" ) ( see paragraph CARDINAL below for an explanation as to such orders ) . The effect of this order was to authorise the ORG to keep A. in the hospital for a period not exceeding seven days . The second applicant was informed and advised to seek legal advice .","ORG The Reporter to ORG for GPE , being of the view that A. might be in need of compulsory measures of care , arranged for a \" children \u2019s hearing \" to be convened , in accordance with section CARDINAL ( CARDINAL ) of LAW ( as to the functions of the Reporter and the nature of children \u2019s hearings , see paragraphs CARDINAL , CARDINAL , DATE and DATE below ) . The ground of referral of the case to the children \u2019s hearing was that \" a lack of parental care [ was ] likely to cause [ A. ] unnecessary suffering or seriously to impair his health or development \" , this being one of the statutory grounds provided for under section CARDINAL of LAW ( see paragraph CARDINAL below ) . In support of the ground of referral , the following statement of facts was given :","\" ( CARDINAL ) ...","( CARDINAL ) ORG That the parent suffers from a major psychiatric illness .","( CARDINAL ) ORG That the parent refuses to take medication to stabilise her condition when not an in - patient at psychiatric hospital .","( CARDINAL ) ORG That the parent has required to be admitted to psychiatric hospital on emergency basis ... on DATE , CARDINAL DATE and DATE .","( CARDINAL ) ORG That due to her psychiatric condition the parent is unlikely to be able to care adequately for the child . \"","ORG At the children \u2019s hearing on DATE the chairman explained to the second applicant the reasons stated by the Reporter for the referral of the case . She indicated that she did not accept the ground of referral and , in particular , disputed DATE , DATE and CARDINAL of the statement of facts . The children \u2019s hearing accordingly instructed the Reporter to apply to ORG ( the local court ) for a finding as to whether the ground of referral was established , in accordance with section CARDINAL of LAW ( see paragraph CARDINAL below ) .","The children \u2019s hearing also issued a warrant under LAW ( CARDINAL ) of LAW A. \u2019s continued detention in a place of safety until DATE ( see paragraph CARDINAL below ) . A subsequent warrant was granted by a further children \u2019s hearing on DATE .","ORG On DATE was discharged from hospital and taken to foster parents at GPE , QUANTITY from GPE . He has remained with them since then . On DATE the second applicant discharged herself from hospital . Arrangements were made for her to be taken CARDINAL times a week for access visits to A. at the foster home , under the supervision of the social work department .","The first applicant , who also has a history of mental illness , was not included at this stage in the access arrangements . The principal reason for this was that the second applicant continued to deny that he was PERSON \u2019s father and he did not himself make any claim to be the father . Other reasons were his aggressive and threatening attitude and his refusal to give information about his background .","ORG The second applicant complained about the placement in GPE and inadequacy of access arrangements . At first she accepted the exclusion of the first applicant , but she and the first applicant subsequently complained about that also . She failed to appear for CARDINAL of the access visits DATE and DATE .","ORG On DATE the Reporter \u2019s application for a finding on the ground of referral was heard in ORG . The second applicant was present and represented by a solicitor . The first applicant also attended . The Reporter led oral evidence from medical , nursery and social work witnesses , including PERSON The first and second applicants both gave evidence . There was no documentary evidence before the court other than the ground of referral and statement of facts ( referred to above in paragraph CARDINAL ) . At the conclusion of the hearing the ORG found the ground of referral established . He remitted the case to the Reporter for him to arrange a children \u2019s hearing to dispose of the case . The second applicant did not appeal to ORG ( the supreme civil court in GPE ) .","On an application by the Reporter and after hearing submissions on behalf of the Reporter and the second applicant , the ORG also granted a warrant for ORG \u2019s continued detention in a place of safety for a further period not exceeding twenty - one days .","ORG On DATE , the social work department held a meeting known as a \" child care review \" , to consider the case . Both applicants were present . The consultant psychiatrist , PERSON , advised that the second applicant was seriously mentally ill but was unwilling to accept treatment . It was decided that access should be terminated , though this decision would be reviewed if the second applicant \u2019s mental state improved . The first applicant had also requested access at the meeting , claiming for the first time that he was PERSON \u2019s father . Access was refused since the second applicant continued to maintain that he was not the father . The social work department also took into account his aggressive and threatening attitude and his continuing refusal to provide information about himself .","ORG On DATE a children \u2019s hearing was held to consider the need for compulsory measures of care for A. The second applicant attended , with the first applicant as her representative . The hearing had a number of documents before it , including a report of CARDINAL DATE on the child compiled by the social work department , reviewing the history of the case and proposing that ORG continue to reside in the foster home . In accordance with the relevant procedural rules ( as contained in LOC ( GPE ) Rules DATE - \" the DATE Rules \" ; see paragraph CARDINAL below ) , these documents were not produced to the applicants , but the chairman informed them of their substance .","The children \u2019s hearing decided that A. did need compulsory measures of care . They therefore made a supervision requirement under LAW ( CARDINAL ) ( a ) of the DATE Act , placing GPE under the supervision of the ORG subject to the condition that he reside with the foster parents in GPE ( as to supervision requirements , see paragraphs CARDINAL below ) . The decision was based , inter alia , on the mental health of both applicants , their aggressive and hostile behaviour and the second applicant \u2019s refusal to seek psychiatric help and treatment . This decision did not make any provision as to access . In such circumstances the presumption is that parents will be given reasonable access , subject to section CARDINAL ( CARDINAL ) of LAW which empowers a local authority to deny access where necessary for the child \u2019s welfare .","ORG On DATE the second applicant was admitted to a psychiatric hospital , initially as a voluntary patient and , as from DATE , on an involuntary basis . She returned home in DATE .","ORG The second applicant ( while in psychiatric hospital ) appealed to ORG against the decision of the children \u2019s hearing . All the documents that had been before the children \u2019s hearing were lodged with ORG . It would appear that , in accordance with the normal procedure ( as to which , see paragraph CARDINAL below ) , they were not made available to the second applicant . She attended the appeal hearing on DATE , accompanied by CARDINAL nurses . She was obviously under heavy sedation and was unrepresented . Following discussion , the Sheriff enquired whether she would prefer to ask for a review by a children \u2019s hearing of the supervision requirement , rather than pursue her appeal . The second applicant agreed . The appeal was accordingly held to have been abandoned .","ORG A review was held by the social work department on DATE . Both applicants attended , the second applicant having been allowed home on leave from the psychiatric hospital . In view of the second applicant \u2019s improved mental state , it was decided to grant her supervised access to A. By DATE , the second applicant had agreed that the first applicant was PERSON \u2019s father . On DATE his name had been added to the birth certificate . This did not , however , give him parental rights ( as to which , see paragraph CARDINAL below ) . At the review , the ORG decided not to grant him access until he gave them information about his background , which he had so far refused to do .","Visits by the second applicant to A. at the foster home , under the supervision of a social worker , began on CARDINAL DATE and continued until DATE .","ORG On DATE , solicitors acting for the first applicant applied to ORG for legal aid for an action against ORG to obtain custody of GPE or , failing that , access to him . The ORG refused legal aid on the basis that it was unreasonable that he should receive legal aid in the particular circumstances and that it had not been shown that there was a probable cause of action . Counsel then advised the first applicant that the proposed action was incompetent and that it would be appropriate to pursue the question of access by seeking a children \u2019s hearing to review the supervision requirement .","ORG On DATE the social work department held a further child care review . Neither applicant attended but the second applicant was represented by a clergyman . The department had previously held meetings with the first applicant to obtain background information about him and , with his consent , made inquiries with his doctor and the police . It was decided to allow both applicants access of CARDINAL supervised visits per week at a special centre and to give assistance to them in learning parenting skills . The position was to be reassessed after DATE .","Access at the centre began on DATE .","ORG On DATE the children \u2019s hearing held a review of the supervision requirement . The second applicant was present and the first applicant attended as her representative . The hearing had before it a report by the social work department dated DATE , updating information on A. The report also contained a statement that the second applicant was refusing to take the medication prescribed for her , an account of the proposed arrangements for access and a recommendation that the supervision requirement should continue pending assessment of the proposed access for DATE . In accordance with the relevant procedural rules ( see paragraph CARDINAL below ) , this report was not disclosed to the applicants , though the chairman informed them of its substance . The applicants had submitted a statement maintaining that in their view the ground of referral was not justified , as they had never had an opportunity to show that they could care for A.","The children \u2019s hearing decided to continue the supervision requirement and to approve the access proposals . The hearing considered that only time would show if A. \u2019s return to the care of the applicants was a viable prospect and that the second applicant \u2019s mental health should be closely monitored .","The second applicant did not appeal to ORG .","ORG DATE and DATE , the applicants made CARDINAL access visits to NORP The social workers did not consider the visits to be a success . In reports dated CARDINAL DATE by a health visitor and DATE by a medical officer , it was stated that the applicants frequently argued before A. and displayed aggression to the staff , with the result that they were excluded from CARDINAL child care centres . They appeared to be unable to accept or follow advice on child care .","ORG On DATE a child care review was held , at which the applicants were present . The meeting noted that no obvious progress had been made in the applicants\u2019 ability to care for A. It was decided to terminate access visits in view of concern about the long - term effects on A. if access were to continue without any real prospect of his returning to the care of his natural parents . It was also decided to investigate the option of freeing A. for adoption . The applicants appealed internally to the District Manager of ORG , who confirmed the decision by letter of CARDINAL DATE in which he recommended them to obtain legal advice .","ORG Following a request by the second applicant , a children \u2019s hearing carried out a review of the supervision requirement on DATE . The second applicant was present with the first applicant as her representative . The Reporter provided the hearing with a further report by the social work department , updating the information on A. It described the problems experienced during the access period , and reported that PERSON was happy and developing well in his foster home and that prospective adopters were being sought . Also presented to the hearing were the documents that had been before previous hearings .","The applicants asked for access to be re - established . The hearing considered that there might be a conflict of interest between the second applicant and A. They therefore adjourned the hearing to allow for the appointment of a \" safeguarder \" , that is an independent person to represent the interests of the child ( as to which , see paragraph CARDINAL below ) .","ORG The safeguarder , once appointed , interviewed the applicants , the social workers , the foster parents and the police . His report of CARDINAL DATE stated , amongst other things , that PERSON was being adequately cared for by the foster parents and that it was desirable that the second applicant should obtain a doctor \u2019s opinion on her present psychiatric condition .","ORG The adjourned children \u2019s hearing reconvened on CARDINAL DATE . The applicants were present , the second applicant being represented by a solicitor . In accordance with the relevant procedural rules ( see paragraph CARDINAL below ) , the safeguarder \u2019s report and the other documents before the hearing were not disclosed to the applicants , but the chairman informed them of the substance . Also before the hearing were written submissions by the applicants stating their ability to care for A. and the unfairness of judging them on the basis of CARDINAL months\u2019 intensive access . The safeguarder attended the hearing and confirmed his view that ORG \u2019s best interests would be served by his remaining in care .","The hearing concluded that the supervision requirement should continue and that there was nothing in what they had heard to convince them that they should grant access . They did not take up a suggestion by the second applicant \u2019s solicitor to grant a further adjournment in order to obtain an independent psychiatric report on the second applicant .","ORG The second applicant appealed to ORG on the grounds that :","( a ) the applicants had not been informed of the substance of the documents produced at the hearing ;","( b ) the refusal of access was based on inadequate information , in particular the lack of up - to - date information as to the second applicant \u2019s mental health ; and","( c ) the refusal to adjourn the hearing for the purpose of obtaining a psychiatric report on the second applicant \u2019s current mental health was manifestly unreasonable .","In the event ground ( a ) was withdrawn . At the appeal hearing on DATE the ORG decided that it would have been appropriate to obtain a psychiatric report . He therefore allowed the appeal and remitted the case to the children \u2019s hearing .","ORG In the meantime , a psychiatric report , dated CARDINAL DATE , had been produced at the request of the second applicant \u2019s solicitors . This report stated that the second applicant suffered from a recurrent mental illness , which was however in remission and which , if it recurred , would respond satisfactorily to treatment as in the past . The psychiatrist considered that access should be re - established and that A. could eventually be returned to the applicants .","ORG A children \u2019s hearing was held on DATE to reconsider the case , as directed by the Sheriff ( see paragraph CARDINAL above ) . The hearing was adjourned at the request of the solicitor representing the second applicant , in order to allow the psychiatrist to submit a fuller report .","ORG A children \u2019s hearing was held on DATE , but neither applicant attended or was represented . The hearing was told that the second applicant had been declared insane and admitted to a psychiatric hospital .","A further hearing was held on DATE . Neither applicant attended or was represented . The hearing concluded that the second applicant was not well enough to have access to A. and that they could not see any future for A. with her . A condition was added to the supervision requirement that there be no access by the second applicant . The second applicant did not appeal to ORG .","ORG On DATE the ORG lodged with ORG a petition to free A. for adoption .","ORG The applicants were married on DATE . The first applicant thereby obtained parental rights in respect of A. ( as to which , see paragraphs DATE and CARDINAL below ) .","ORG The petition was heard DATE and DATE . The applicants , as parents , refused to give their consent to adoption . They were present at the hearing . The first applicant conducted his own case , whereas the second applicant was represented by a solicitor . The documentary evidence before the court had been disclosed to the applicants . Witnesses were heard . The applicants had the opportunity to cross - examine all witnesses led by the ORG , as well as to lead their own evidence .","ORG The ORG delivered his judgment on DATE , the second applicant having in the meantime been re - admitted to hospital on DATE . He decided that the applicants were withholding their consent unreasonably and that , accordingly , their consent should be dispensed with . He therefore granted the order freeing A. for adoption . His judgment contained a detailed description of the second applicant \u2019s history of mental illness and of the problems that had occurred during access visits . His findings included the following :","\" PERSON is incapable of having permanent care of the child [ A. ] because of the severity and unpredictability of her illness . When she is actively ill it would be unsafe for the child to be in her care .","...","The natural parents have no understanding of what is meant by loving and caring for a child and have demonstrated an inability either to learn such skills , or to want to learn them .","It is in the interests of the child \u2019s welfare that he be freed for adoption . The natural parents are both emotionally and intellectually incapable of giving the child a secure and stable environment . If he were in their care he would be liable to suffer emotional deprivation and , because of their inability physically to care for him , could be in situations of danger . \"","The Sheriff concluded :","\" In my view , there is no escaping from the conclusion that both these parents are withholding their agreement unreasonably . They are withholding their agreement because they are not parents who have begun to demonstrate their capacity to have custody . PERSON suffers from a grave mental illness which may at any time , unless appropriate medical treatment is taken , incapacitate her from looking after , not only a child , but herself . Even when her illness is not to the degree at which hospitalisation is required , she has been demonstrated as incapable of the most elementary physical and emotional capacities in parenting . The one capacity she does have , I accept , is the desire to be a parent , to have the child , but the accomplishment of that ambition is , I fear , demonstrated to be beyond her . The incapacity of the father to behave normally as a parent to the child is established by the evidence of PERSON [ K. ( the health visitor ) ] and PERSON ( from the social work department ) ] , whose testimonies support the findings in fact I have made relating to access visits ... \"","ORG In DATE the applicants appealed to ORG against the ORG \u2019s decision .","ORG The applicants were granted legal aid . Counsel and solicitors\u2019 advice was that an appeal had no prospects of success at all and should be abandoned . The applicants did not accept this advice and continued with the appeal , without legal assistance .","ORG The appeal was dismissed by ORG on DATE . The court held that the ORG was justified in concluding that , because of the mental health of the second applicant and the first and second applicants\u2019 lack of understanding how to care properly for a child , it would have been contrary to the best interests of A. to return him to the applicants\u2019 custody .","ORG In the meantime , on DATE , a children \u2019s hearing had decided that the supervision requirement should continue . A similar decision was made subsequently by another children \u2019s hearing on DATE .","ORG At a children \u2019s hearing held on DATE it was announced that the foster parents with whom PERSON had been living since DATE intended to adopt him . The children \u2019s hearing decided that the supervision requirement should continue , with a condition that A. should reside with the foster parents .","ORG On DATE the application by the foster parents to adopt A. was granted by the Sheriff . The effect of the adoption order was to vest in the adoptive parents all parental rights and duties relating to A.","ORG On DATE a children \u2019s hearing decided that the supervision requirement should be terminated , as A. had been adopted and all reports on his welfare were favourable .","ORG Under NORP law the nature of the rights enjoyed by parents in relation to their children is governed by the common law . In respect of girls under CARDINAL and boys under CARDINAL , parents enjoy , inter alia ,","( a ) ORG the right of tutory , which can be described as the right to administer the child \u2019s property and to act legally on behalf of the child ;","( b ) ORG the right of custody , which can be described as the right of the parent to have the child living with him or her , or otherwise to negotiate the child \u2019s residence and to control the child \u2019s day - to - day upbringing ;","( c ) ORG the right to access .","ORG The position as to the persons who may exercise parental rights is regulated by LAW ) ( GPE ) Act DATE ( \" LAW \" ) . In general LAW abolished the legal distinctions between children born in and out of wedlock . However , in relation to parental rights a distinction persists , as appears from LAW ) which provides :","\" ( a ) a child \u2019s mother shall have parental rights whether or not she is or has been married to the child \u2019s father ;","( b ) ORG a child \u2019s father shall have parental rights only if he is married to the child \u2019s mother or was married to her at the time of the child \u2019s conception or subsequently . \"","Section CARDINAL ( CARDINAL ) is in turn subject to section CARDINAL , which enables any person claiming an interest to make an application to court for an order relating to parental rights ( subsection ( CARDINAL ) ) . The court , which is bound to regard the welfare of the child as the paramount consideration , may not make such an order unless satisfied that to do so would be in the interests of the child ( subsection ( CARDINAL ) ) . The natural father of a child born out of wedlock ( who is not automatically entitled under LAW ( CARDINAL ) ) may obtain parental rights ( including tutory , custody or access ) under this procedure by applying to either ORG or the local ORG . Where the mother consents , the matter will be dealt with expeditiously .","ORG The arrangements in GPE for dealing with children who may need compulsory measures of care are set out in Part III of the DATE Act , as supplemented by subordinate legislation and , in particular , the DATE Rules governing conduct of children \u2019s hearings .","ORG Under LAW of LAW the local authority ( in the present case , ORG ) has a general responsibility for promoting social welfare in its area . More specifically , it has the duty to inquire into and tell the Reporter of cases of children who may need compulsory measures of care , to provide reports on children for children \u2019s hearings and to implement supervision requirements imposed by children \u2019s hearings .","ORG The Reporter is appointed under LAW of LAW by the local authority . Though employed by the local authority , he is expected to exercise his judgment independently and is separate from the local authority \u2019s social work department . He may not be removed from office without the consent of the Secretary of ORG . His duties include deciding whether a case should be referred to a children \u2019s hearing and arranging such hearings when they are necessary .","ORG Children \u2019s hearings decide whether a child requires compulsory measures of care and , if so , which measures are appropriate . Pursuant to section DATE of LAW , a children \u2019s hearing consists of a chairman and CARDINAL other members drawn from the children \u2019s panel . The Secretary of ORG appoints a children \u2019s panel for each local authority area . The members hold office for such period as the Secretary of ORG specifies ; they may be removed by him at any time , but only with the consent of the most senior judge in GPE , the Lord President of ORG ( section CARDINAL of and Schedule CARDINAL to LAW , and section CARDINAL ( CARDINAL ) of ORG . In practice members are initially appointed for DATE and are then usually reappointed for a further period , normally of DATE . They would be removed only in wholly exceptional circumstances .","Under domestic law a children \u2019s hearing is regarded as a tribunal . It comes under the statutory system applicable to tribunals in GPE ( paragraph CARDINAL of Schedule CARDINAL to the Tribunals and Inquiries Act DATE ) . Its members are considered to enjoy judicial immunity from proceedings for wrongful detention and defamation , in the same way as judges of the lower courts .","ORG The children \u2019s hearing may only consider the case of a child where it has been referred to them by the Reporter and where certain \" grounds of referral \" are established , either by agreement with the child and his parent or by a decision of ORG . The grounds , as set out in section CARDINAL of the DATE Act , include the following :","\" ( c ) lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development . \"","Thus , in the absence of agreement , a decision by a judge on the grounds of referral , after hearing appropriate evidence , is essential before the children \u2019s hearing can consider the case .","ORG The Sheriff , that is any judge of the local ORG , has the following main roles in the process :","( a ) to grant a warrant for continued detention of a child in a place of safety , pending a hearing , in certain circumstances ;","( b ) to adjudicate on whether the grounds of referral to the children \u2019s hearing are established , where the child or his parent does not accept them ;","( c ) to hear appeals against decisions of children \u2019s hearings .","ORG As an urgent measure to protect a child before he or she can be brought before a children \u2019s hearing , a person may be authorised by a judge to take a child to \" a place of safety \" , as defined in LAW , in cases where there is believed to be lack of parental care ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ) . Such detention may not in any case DATE . The Reporter must be notified immediately . If he then considers that compulsory care may be needed , he must arrange a children \u2019s hearing to consider the case ( section CARDINAL ( CARDINAL ) ) . If the children \u2019s hearing can not dispose of the case , they may issue a warrant , renewable once , requiring detention for up to DATE ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) . Thereafter the Reporter may ask the Sheriff for a warrant for further detention for a period of up to DATE ( section CARDINAL ( CARDINALA ) ) . The child and his or her parents have a right to be heard before any such warrant is issued by a children \u2019s hearing or a Sheriff .","ORG The Reporter is under a duty to notify the parents of a child of a children \u2019s hearing giving CARDINAL days\u2019 notice . He also must provide before the first hearing a statement of the grounds of referral . He must also request from the local authority a report on the child and his or her social background , and the local authority must supply it ( section CARDINAL ( CARDINAL ) of LAW ) .","ORG A parent has the right to attend at all stages of a children \u2019s hearing . \" Parent \" excludes the father of a child born out of wedlock but includes a person who has been granted parental rights under LAW ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ) . A parent may be represented by any person of his or her choice ( LAW of the CARDINAL Rules ) .","ORG Where the chairman of the children \u2019s hearing considers that there is a conflict of interest between child and parent , he has the power to appoint a person known as a safeguarder to represent the child ( section CARDINALA of LAW ) .","ORG At the first children \u2019s hearing it must be ascertained if the grounds of referral are accepted by the child or his or her parent . If both child and parent accept , the hearing may proceed . If not , the hearing must direct the Reporter to apply to ORG for a decision as to whether the grounds are established . Such application must be made within DATE and heard within QUANTITY days of its being lodged . The parents may appear as parties and be represented . The hearing is conducted in chambers , that is in private , in the interest of the child . Following the hearing , the Sheriff may either discharge the referral or , where he is satisfied that the grounds are established , remit the case to the Reporter . The Reporter will then make arrangements for a further children \u2019s hearing for consideration and determination of the case ( section DATE ( CARDINAL ) of LAW ) .","ORG At this stage , after discussing the case with the child , the parent or parents , any safeguarder and any representative attending the hearing , the children \u2019s hearing must consider what arrangements would be in the best interests of the child ( section CARDINAL of LAW ) . They may , amongst other things ,","( CARDINAL ) decide that no further action is required and discharge the referral ;","( CARDINAL ) adjourn the case pending further investigations ;","( CARDINAL ) if they consider that the child is in need of compulsory measures of care , make a supervision requirement ( as to which , see paragraph CARDINAL below ) .","ORG Before the conclusion of the hearing the chairman must inform the child , parent or parents , safeguarder ( if any ) and representatives ( if attending the hearing ) of the decision of the children \u2019s hearing , the reasons for the decision , the right of the child or parent to appeal to the FAC against the decision and the right of the child and parent to receive a statement in writing of the reasons for the decision . Such a written statement must then be given if requested . Any parent , child or safeguarder who did not attend must be notified in writing of the decision , the right to receive a statement of reasons and the right to appeal ( Rules CARDINAL ( CARDINAL ) and CARDINAL of the DATE Rules ) .","ORG Children \u2019s hearings are required to consider any relevant information made available to them ( Rule CARDINAL ( CARDINAL ) ( a ) of the DATE Rules ) . Apart from the statement of grounds of referral , this information ( which would include any report , document or information submitted by the Reporter ) is not usually supplied to the child or his parents . However , the chairman is required at the hearing to inform the child and his parents of the substance of such reports , documents or information if it appears to him that this is material to the manner in which the case should be disposed of and that its disclosure would not be detrimental to the interests of the child ( Rule CARDINAL ( CARDINAL ) of the DATE Rules ) .","ORG Supervision requirements are the orders of the children \u2019s hearing imposing compulsory measures of care . CARDINAL kind of requirement that may be ordered is to submit to supervision in accordance with such conditions as the children \u2019s hearing may impose , which may include a condition that the child reside in a particular place other than a residential establishment - for example , with foster parents ( section CARDINAL ( CARDINAL ) ( a ) and ( b ) of the DATE Act ) .","A supervision requirement makes the local authority responsible for the care of the child in accordance with the requirement and gives them the necessary powers to exercise this responsibility . It does not , however , formally vest in them any parental rights of custody and does not take away parental rights . Those rights are subject to the supervisory requirements and , so far as inconsistent with those requirements , they can not be exercised .","Thus , the right of custody can not be exercised where a supervision requirement has required a child to live in foster care . ORG has indicated in the case of PERSON v. PERSON ( [ DATE ] Session Cases CARDINAL ) that while such a supervision requirement subsists it would be possible for them to award a person custody of the child , but this award would have effect subject to the supervision requirement and the person could not exercise actual custody while the supervision requirement subsisted .","As regards access , the children \u2019s hearing is entitled to attach conditions as to access when making or continuing a supervision requirement ( see LAW ) . In the absence of any express condition , the parents will be given reasonable access . However , a local authority has the competence to terminate access where that is appropriate in pursuance of their duty under section CARDINAL of the DATE Act ( see paragraph CARDINAL above ) . ORG has made it clear , in the case of ORG v. ORG ( [ DATE ] Session Cases CARDINAL ) , that the courts will not adjudicate on questions of access between the parents and the local authority . If a parent is dissatisfied with the decision of a local authority as to access , it is appropriate for him or her to apply to a children \u2019s hearing to regulate the matter by attaching a condition as to access to the supervision requirement . An appeal to the courts will then lie against the decision of the children \u2019s hearing .","ORG A parent has the right to request a review of a supervision requirement DATE after the last review ( section CARDINAL ( CARDINAL ) of LAW ) and can use this right to obtain a ruling on access .","ORG LAW prescribes that a child should not continue to be subject to a supervision requirement for any longer than is necessary for his or her interest . The requirement must be reviewed by a children \u2019s hearing -","( a ) ORG at any time if the local authority consider that it should cease to have effect or be varied ;","( b ) ORG within DATE , otherwise it will cease automatically to have effect ;","( c ) ORG at the request of the child or his or her parent , after the expiry of these periods -","( i ) ORG DATE from imposition of the requirement ;","( ii ) DATE from any variation of the requirement of review ;","( iii ) DATE from any other review ( section CARDINAL ( CARDINAL ) of LAW ) .","The Reporter must make the necessary arrangements for such revision hearings . On review the children \u2019s hearing may terminate , continue or vary the requirement ( sections CARDINAL ( CARDINAL ) and CARDINAL of the DATE Act ) .","( h ) ORG against a decision of a children \u2019s hearing","ORG Within DATE of a decision of a children \u2019s hearing a child or parent or both may appeal against it to the FAC ( section DATE ( CARDINAL ) of LAW ) . This applies to all decisions .","The Reporter has the duty to ensure that all reports and statements available to the children \u2019s hearing along with reports of the proceedings of the children \u2019s hearings and their reasons for their decisions are lodged with the clerk to ORG . These documents are not made available to the parents as a matter of practice .","The appeal is heard in chambers , in the interest of the child . The Sheriff must first hear the appellant or his representative and any safeguarder appointed . Where an irregularity in the conduct of the case is alleged , unless the facts are admitted by the Reporter , the Sheriff must hear evidence tendered by or on behalf of the appellant and the Reporter as to the irregularity . The ORG will then proceed to question , if he thinks fit , the Reporter and the authors or compilers of any reports and statements before him . He can call for further reports and statements where he thinks that this may help him . The child and parents and safeguarder are normally entitled to be present throughout .","ORG The ORG will allow the appeal if he finds that there was a flaw in the procedure adopted by the children \u2019s hearing , or that the children \u2019s hearing did not give proper consideration to some factor in the case . Where he decides the appeal has failed , he confirms the decision of the children \u2019s hearing . Where he allows the appeal , he may act as follows :","( a ) ORG where the appeal is against a warrant for detention , he may recall the warrant ;","( b ) ORG in any other case , he has the choice of remitting the case to the children \u2019s hearing for reconsideration or else of discharging the child from any further proceedings arising from those grounds of referral ( section DATE ( CARDINAL ) of LAW ) .","Pending an appeal , the child or his parents may make an application to a children \u2019s hearing for suspension of the supervision requirement in question . The Reporter must then arrange for a hearing , which may grant or refuse the application ( section DATE ( CARDINAL) of LAW ) .","ORG The legislation governing adoption procedure is the Adoption ( GPE ) DATE ( \" LAW \" ) .","ORG Under LAW an order declaring the child free for adoption may be made by ORG . The procedure of freeing for adoption makes it possible for the child to live with the prospective adopters in the period prior to adoption without the risk of his or her being reclaimed by the natural parents .","Before making the order the court must be satisfied as regards each parent or guardian of the child that either","( a ) ORG he or she freely , and with full understanding of what is involved , agrees generally and unconditionally to the making of an adoption order ; or","( b ) ORG his or her agreement to making the adoption order should be dispensed with on a number of specified grounds , which include the ground that the parent or guardian is withholding agreement unreasonably ( LAW ( CARDINAL ) of LAW ) .","For the purposes of LAW the natural father of a child born out of wedlock would not be a \" parent \" or \" guardian \" except where he has subsequently married the mother or has a parental - rights order in his favour .","The effect of an order freeing the child for adoption is to vest parental rights and duties in the adoption agency ( that is , a local authority or an approved adoption society ) and to extinguish existing parental rights . After freeing for adoption , the child will normally live for a time with the prospective adopters and then they will seek an adoption order .","ORG An order of ORG freeing a child for adoption is subject to appeal to ORG . On such an appeal ORG can decide on the whole merits of the action . ORG will normally proceed on the basis of the ORG \u2019s findings of fact but is not obliged to do so . It may , where appropriate , take evidence itself or remit the case to the ORG with instructions as to how he should proceed ."],"violated_articles":["6","8"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["14","6","8"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22017","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2001,"docname":"H.P. AND OTHERS v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicants , ORG , born in DATE , ORG , born in DATE , PERSON , born in DATE , ORG , born in DATE , and GPE , born in DATE , are all NORP nationals . They are living in PERSON \/ Drau , PERSON and ORG respectively . They are represented before the ORG by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants and their brother are all children of a NORP farmer who died on DATE without having left a will . After the death of the applicants\u2019 father , inheritance proceedings commenced on DATE when their conditional declaration accepting the inheritance ( bedingte Erbserkl\u00e4rung ) was registered by the PERSON \/ Drau District Court .","On DATE , CARDINAL May , DATE , DATE , and DATE , inheritance negotiation hearings were held by the court commissioner in the competent notary \u2019s office . As the applicants and their brother were unable to reach an agreement , on CARDINAL DATE the proceedings were transferred to ORG which held hearings on DATE , DATE , DATE and DATE . On the latter date the court ruled that the applicants and their brother had already , on DATE , entered into a valid agreement concerning the estate and appointed the applicants\u2019 brother as the principal heir ( Anerbe ) . The latter appealed against this decision arguing that no agreement had been reached . On DATE ORG granted his appeal and referred the case back to ORG .","ORG continued the proceedings and took several expert opinions on the question whether the ORG brother was able to be the principal heir . Upon the ORG requests , experts were appointed on DATE , DATE , DATE and CARDINAL DATE . On DATE ORG determined that the applicants\u2019 brother was the principal heir . On DATE ORG granted the applicants\u2019 appeal and referred the case back to ORG .","On DATE ORG requested an expert opinion of ORG ( PERSON f\u00fcr Land- PERSON ) on the question whether the estate fulfilled the conditions of a hereditary farm ( Erbhof ) within the meaning of the NORP LAW ( ORG ) . On DATE ORG found that it was a hereditary farm .","Further hearings were held on DATE and DATE . On the latter date the applicants and their brother agreed on a settlement regulating the inheritance ( Erb\u00fcbereinkommen ) . The file was transferred to the notary and , at the hearing of DATE , the applicants and their brother agreed on a family arrangement regulating the division of the whole estate ( Erbteilungs\u00fcbereinkommen ) .","On DATE ORG issued the certificate putting the statutory heir in possession of the estate ( ORG ) . Thereupon , on DATE , the inheritance settlement was entered in the land register ( Grundbuch ) .","Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .","\" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert \u2019s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .","( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .","( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . \""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75882","languageisocode":"ENG","respondent":"POL","branch":"GRANDCHAMBER","date":2006,"docname":"CASE OF HUTTEN-CZAPSKA v. POLAND","importance":1,"conclusion":"Preliminary objection rejected (ratione temporis);Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - financial award","judges":"Anna Wyrozumska;Christos Rozakis;Egbert Myjer;Fran\u00e7oise Tulkens;Giovanni Bonello;Ineta Ziemele;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Luzius Wildhaber;Matti Pellonp\u00e4\u00e4;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Viera Str\u00e1\u017enick\u00e1;Vladimiro Zagrebelsky","text":["The applicant , who is a NORP national of NORP origin , was born in DATE . She lived for a long time in GPE , GPE . At present , she lives in GPE , GPE . She owns a house and a plot of land in GPE , GPE . The property previously belonged to her parents .","NORP legislation on rent control is the result of many historical and recent factors . Legislative schemes restricting the rights of landlords and regulating increases in rent were already in operation before the Second World War . The description below of the general situation is based on the findings of ORG ( PERSON ) which , on DATE , in CARDINAL of its judgments concerning the constitutionality of certain aspects of the legislation on rent control , gave thorough consideration to the historical background of this legislation and the factors contributing to the preservation of restrictions dating back to an early stage of the communist regime in GPE .","The rent - control scheme was the consequence of the introduction of the so - called \u201c ORG management of housing matters \u201d ( publiczna gospodarka lokalami ) by the former communist authorities ( see paragraphs CARDINAL below ) . It was accompanied by provisions drastically restricting the amount of rent chargeable . The applicable provisions originated in the exceptionally rigid distribution of housing resources which characterised DATE of the communist regime in GPE .","The circumstances did not change significantly after the end of the communist rule in DATE . Indeed , at DATE the housing situation of GPE was particularly difficult , as was demonstrated , on the one hand , by a shortage of dwellings and , on the other hand , by the high cost of acquiring a flat . The ORG - controlled rent , which also applied to privately owned buildings , covered PERCENT of the actual costs of maintenance of the buildings .","In DATE those social and economic factors prompted the legislature not only to maintain elements of the so - called \u201c special lease scheme \u201d ( szczeg\u00f3lny tryb najmu ) ( see paragraph CARDINAL below ) in respect of ORG - owned dwellings but also to continue to apply that scheme DATE temporarily , for a period of DATE expiring on DATE to privately owned buildings and dwellings . In short , the system was a combination of restrictions on the amount of rent chargeable and of limitations on the termination of leases , even in respect of tenants who did not comply with the terms of the contract .","The material collected by ORG in DATE included a report prepared by ORG ( PERSON i PERSON ) . According to that report , in DATE , after DATE of the operation of the DATE rent - control scheme , the average rent as fixed under that scheme covered PERCENT of the costs of maintenance of residential buildings . The shortfall was to be covered by landlords . The scale of the problem was considered to have been very large , since at that time CARDINAL dwellings ( PERCENT of the country \u2019s entire housing resources ) were let under the rent - control scheme . That number comprised CARDINAL flats in buildings owned by private individuals . The total number of flats in GPE was estimated at CARDINAL . Flats in privately owned buildings subject to the rent - control scheme constituted PERCENT of the country \u2019s housing resources .","The report stated , among other things :","\u201c Before ... [ DATE ] , statutory rent determined by the ORG covered PERCENT of running maintenance costs . At present , after DATE of operation of the [ DATE ] rent - control scheme , municipalities set levels of rent covering on average PERCENT of maintenance costs . ...","In respect of buildings owned by municipalities , the shortfall is covered by the municipalities , which frequently use for that purpose surplus derived from letting commercial LOC .","As regards privately owned buildings where tenants pay controlled rent , the shortfall is covered by the owners of the buildings . \u201d","In DATE the government , in the course of preparation of its bill amending the legislation on rent control ( see paragraphs CARDINAL et seq . below ) , collected a considerable amount of data describing the current general housing situation in GPE .","The situation is characterised by a serious shortage of residential dwellings . According to the DATE national population and housing census , the deficit , defined as the difference between the number of households and the number of flats , amounts to CARDINAL flats . There is a particularly acute shortage of flats to let .","Data collected by ORG ( PERSON ) on the overall financial situation of households , indicate that in DATE household expenses such as rent and electricity bills amounted to PERCENT of total expenses ( PERCENT in ORG households ) . During the same period , PERCENT of NORP households were in rent arrears ( DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ; DATE : PERCENT ) .","In DATE PERCENT of the population lived below the poverty line , of which PERCENT were below the abject poverty line . In DATE PERCENT of the population lived below the poverty line , of which PERCENT were below the abject poverty line .","Various reports received by ORG confirmed that the provisions relating to the protection of tenants as applicable until DATE ( see paragraphs CARDINAL below ) limited the availability of flats to let . In the authorities\u2019 view , the introduction of the so - called \u201c commercial lease \u201d ( najem komercyjny ) \u2013 in other words a market - related lease DATE by lifting restrictions on rent increases for privately owned buildings and freeing private landlords from their obligation to provide indigent tenants with alternative accommodation upon the termination of their lease , should encourage private investors to build tenement houses designated solely for letting .","The Government gave various figures to indicate the number of persons potentially affected by the operation of the rent - control scheme . They stated that , according to information supplied by ORG , the operation of the relevant legislation affected CARDINAL landlords and CARDINAL tenants . Other sources cited by the Government indicated that the total number of persons concerned was CARDINAL landlords and CARDINAL tenants .","The applicant \u2019s house was built in DATE as a CARDINAL - family home . It originally consisted of a duplex flat , a basement and an attic .","During the Second World War , the house was occupied by officers of the NORP army . In DATE it was taken over by ORG , which quartered some of its officers there for a while .","On DATE the head of the housing department of ORG ( PERSON Mieszkaniowego PERSON ) issued a decision assigning the first - floor level of the duplex flat to a certain ORG","In DATE ORG ( S\u0105d Grodzki ) ordered the return of the house to the applicant \u2019s parents . They began to renovate it but , shortly afterwards , were ordered to leave . ORG moved into the house in DATE .","On DATE the Decree of DATE on the ORG management of housing and lease control ( Dekret o publicznej gospodarce lokalami i kontroli najmu ) came into force . Under its provisions , the house became subject to the so - called \u201c ORG management of housing matters \u201d ( see paragraph CARDINAL above ) .","In DATE , at a public auction , the authorities unsuccessfully tried to sell the house to ORG , who was at that time employed by ORG , an authority responsible for the ORG management of housing matters at the material time . At about the same time , the applicant \u2019s parents , likewise unsuccessfully , tried to recover their property .","On DATE LAW ( Prawo lokalowe ) ( \u201c the DATE LAW \u201d ) came into force . It replaced the ORG management of housing matters with the so - called \u201c special lease scheme \u201d ( see paragraphs CARDINAL above and CARDINAL below ) .","On an unknown date in DATE a certain ORG , who was at that time head of the housing department of ORG ( PERSON Lokalowych Urz\u0119du PERSON ) , tried to buy the house from the applicant \u2019s brother .","On DATE the mayor of GPE issued a decision allowing ORG to exchange the flat he was renting in another building under the special lease scheme for the ground - floor flat in the applicant \u2019s house . That decision was signed on behalf of the mayor of GPE by a civil servant who was subordinate to ORG On DATE ORG issued a decision confirming that under the provisions governing the special lease scheme the flat had been let to ORG for an indefinite period . Later , in DATE , the applicant tried to have that decision declared null and void but succeeded only in obtaining a decision declaring that it had been issued contrary to the law ( see paragraphs DATE below ) .","On DATE the head of the local management and environment office of ORG ( ORG i Ochrony \u015arodowiska Urz\u0119du PERSON w ORG ) ordered that the house become subject to ORG management ( przej\u0119cie w zarz\u0105d pa\u0144stwowy ) . That decision took effect on DATE .","On DATE ORG ( S\u0105d Rejonowy ) , ruling on an application by ORG \u2019s relatives , gave judgment , declaring that , after ORG \u2019s death , her daughter ( PERSON ) and son - in - law ( PERSON ) had inherited the right to rent the first - floor flat in the applicant \u2019s house .","On DATE the ORG gave a decision declaring that the applicant had inherited her GPE property . On DATE ORG entered her title in the relevant land register .","On DATE the mayor of GPE issued a decision restoring the management of the house to the applicant . On DATE , acting through her representative , she took over the management of the house from ORG . Shortly afterwards , she began to refurbish the house .","On an unknown date in DATE the applicant set up a private foundation called ORG ( ORG ) . Since DATE she has been trying to make her house the seat of the foundation .","After taking over the management of the house , the applicant initiated several sets of proceedings DATE civil and administrative \u2013 in order to annul the previous administrative decisions and regain possession of the flats in her house .","On DATE the applicant asked ORG to order the eviction of her tenants . In DATE , on an application by the defendants , those proceedings were stayed . On DATE the applicant \u2019s claim was dismissed .","In DATE the applicant asked ORG ( S\u0105d Wojew\u00f3dzki ) to order ORG to relocate the tenants living in her house to dwellings owned by the municipality . She also asked the court to award her compensation , inter alia , for the fact that the authorities had deprived her parents and herself of any possibility of living in their own house , for damage to the property and arbitrary alteration of its use , and for mental suffering . On DATE ORG ruled that , under LAW of DATE ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) ( \u201c the DATE LAW ) , the defendant authority had no obligation to relocate the tenants to accommodation owned by the municipality . It dismissed the remainder of the claims . The applicant appealed .","On DATE ORG ( S\u0105d Apelacyjny ) heard , and dismissed , her appeal . It observed that no provision of the DATE Act obliged the municipal authorities to relocate the applicant \u2019s tenants or , at her request , to provide them with alternative accommodation ( lokal zast\u0119pczy ) . The relevant provisions of LAW , namely section CARDINAL ) and ( CARDINAL ) ( see paragraph CARDINAL below ) , stipulated that a tenant had to vacate a dwelling only if the owner had offered him another flat he owned or the municipality had agreed to provide the tenant with alternative accommodation owned or administered by it . As regards the applicant \u2019s claim for damages for financial loss sustained as a result of the administrative decisions , ORG observed that such claims could be determined by the courts of law only if a claimant had first applied for compensation to the administrative authorities and the outcome of the relevant administrative proceedings had been unfavourable . It referred the applicant to LAW ( Kodeks post\u0119powania administracyjnego ) , which set out the rules governing the liability of public authorities for issuing wrongful decisions .","In so far as the applicant sought compensation for damage to the house and for the alteration of its use , ORG considered that the defendant authority could not be held liable for the consequences of the laws which had previously been in force . In particular , it was not liable for the enactment of the post - war legislation which had introduced restrictive rules concerning the lease of dwellings in privately owned houses and the ORG management of housing matters . Nor was it liable for the implementation of the special lease scheme introduced by LAW and the operation of LAW , which incorporated certain similar rules for the protection of tenants whose right to rent flats in privately owned houses had been conferred on them by administrative decisions ( see paragraphs CARDINAL below ) . Lastly , the court noted that the defendant could not be liable for any damage caused by the applicant \u2019s tenants .","Subsequently , the applicant lodged a cassation appeal ( kasacja ) with ORG ( S\u0105d Najwy\u017cszy ) . On DATE ORG dismissed that appeal on procedural grounds . The court held that the applicant had not complied with the relevant formal requirements ; in particular , she had not specified the errors of substantive civil law allegedly committed by the lower courts .","In DATE the applicant asked ORG ( PERSON ) to declare null and void the decision of the head of the housing department of ORG of DATE . By virtue of that decision , the first - floor flat in the house had been assigned to ORG It had also formed a basis for granting the right to lease that flat in the applicant \u2019s house to ORG \u2019s successors ( see paragraphs DATE and CARDINAL above ) .","On DATE ORG rejected her application . It noted that the impugned decision had been taken pursuant to the Decree on housing commissions issued by ORG ( Dekret Polskiego Komitetu Wyzwolenia Narodowego o komisjach mieszkaniowych ) , a provision which had at the relevant time governed all housing matters . It found that the decision had not been issued by the competent public authority and , in consequence , had not been lawful . Yet the Board could not declare the decision null and void ( stwierdzi\u0107 niewa\u017cno\u015b\u0107 decyzji ) because , pursuant to LAW , if DATE had elapsed from the date on which the unlawful decision had been made , ORG could only declare that the decision \u201c had been issued contrary to the law \u201d ( zosta\u0142a wydana z naruszeniem prawa ) .","The applicant appealed to ORG ( PERSON ) . On DATE the court dismissed her appeal because she had not availed herself of an obligatory legal remedy in that she had not made an application to ORG for the matter to be reconsidered ( wniosek o ponowne rozpatrzenie sprawy ) .","The applicant subsequently made such an application . On DATE the ORG upheld its decision of DATE . The applicant appealed to ORG . ORG ( Prokurator Wojew\u00f3dzki ) joined the proceedings and lodged an appeal on the applicant \u2019s behalf .","On DATE ORG dismissed both appeals . It confirmed that the impugned decision had been unlawful . It added that there had been several procedural shortcomings ( for instance , the applicant \u2019s parents had not been notified of the proceedings and had never had any opportunity to challenge the decision ; in addition , no legal basis had been given for it ) . However , in accordance with LAW , the court could not annul the decision but could only declare that it had been issued contrary to the law . In passing , the court observed that the above - mentioned procedural shortcomings could be rectified by means of reopening the proceedings .","In DATE the applicant asked ORG of Appeal to declare null and void the decision of the mayor of ORG . By virtue of that decision , ORG had been granted the right to lease the ground - floor flat in the applicant \u2019s house ( see paragraph CARDINAL above )","On DATE the ORG rejected her application . The applicant appealed to ORG .","On DATE the court dismissed her appeal . It found that the flats in the applicant \u2019s house had been let under the special lease scheme introduced by LAW and that , accordingly , the mayor had been competent to issue the decision in question . It further observed that , despite some procedural errors committed by the mayor of GPE ( which could be rectified by means of reopening the proceedings ) , the decision had had a legal basis and could not , therefore , be declared null and void .","On DATE the applicant asked the mayor of GPE to reopen the relevant proceedings and to declare the impugned decision null and void . The mayor rejected her application as being lodged out of time .","On DATE the ORG of Appeal , of its own motion , reopened the proceedings . It found that the contested decision had been made on behalf of the mayor of GPE by a civil servant who had been ORG subordinate and that that fact in itself constituted a sufficient ground for reopening the proceedings pursuant to Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW . That fact had also rendered the decision unlawful . However , since DATE had elapsed from the date on which the decision had been given , ORG could not annul it . It could merely declare that it had been issued contrary to the law , as laid down in LAW .","The applicant appealed to ORG , alleging that the decision had never been served on the owners of the house and that it should have been declared null and void . On DATE her appeal was dismissed .","On DATE the applicant asked ORG to reopen the administrative proceedings that had been terminated on DATE by the decision of the head of the local management and environment office of ORG . By virtue of that decision , the applicant \u2019s house had become subject to ORG management ( see paragraph CARDINAL above ) . She further asked to have the decision declared null and void , submitting that it had lacked a legal basis . In particular , the house had incorrectly been classified as a \u201c tenement house \u201d ( dom wielorodzinny ) , whereas in reality it was , and always had been , a CARDINAL - family house and , as such , should not have become subject to ORG management . The decision , the applicant added , had been made solely for the personal benefit and gain of ORG , who had at that time been the head of the housing department of ORG . In her view , it had been made to sanction DATE and likewise unlawful \u2013 decision of CARDINAL DATE whereby ORG had acquired the right to lease the flat in her house .","On DATE the mayor of GPE rejected her application , finding that she had lodged it outside the prescribed time - limit . On DATE the ORG of Appeal upheld the mayor \u2019s decision . Subsequently , the applicant appealed to ORG . On DATE the court quashed both decisions because the mayor of GPE had not been competent to rule on the application .","On DATE the ORG of Appeal reopened the proceedings terminated by the decision of DATE . On DATE ORG declared that that decision had been issued contrary to the law because the owners of the house had not been notified of the proceedings . It found that ORG had not acted with due diligence . In particular , it had made no effort to establish who had been the rightful successors to the owners of the house , while at the material time the applicant and her brother had \u2013 on a regular basis \u2013 paid the relevant taxes on the property to ORG . Relying on LAW , the ORG refused to annul the decision because DATE had elapsed from the date on which it had been given .","On an unspecified date in DATE the applicant asked the Governor of GPE ) to declare the decision of DATE null and void . The application was referred to ORG , a body competent to deal with the matter . ORG rejected the application on DATE . It held that the matter was res judicata .","The parties gave differing information as to the actual usable surface area of the flats in the applicant \u2019s house , a factor relevant for the determination of the chargeable rent .","The Government submitted that the usable surface area of the applicant \u2019s house was QUANTITY . They produced an inventory done on DATE in connection with the transfer of management of the house from ORG to the applicant ( see also paragraph CARDINAL above ) . The usable surface area of the house was estimated at QUANTITY m ; no net living area was indicated . There were CARDINAL flats and no commercial LOC . The number of habitable rooms in the flats was CARDINAL . The surface area of those flats was estimated at QUANTITY m. The total surface area of the house was indicated as CARDINAL sq . m.","The applicant stated that the total surface area of the house occupied by the tenants and for which they paid rent was QUANTITY . m. In that connection , she supplied a declaration of CARDINAL DATE , issued by ORG and Managing Agents ( GPE i PERSON ) , an agency that apparently administered her property . According to the declaration , since DATE the applicant \u2019s house had been divided into CARDINAL flats leased by means of the agreements originating in the administrative decisions described above .","The usable surface areas of those flats for the purposes of fixing rent were as follows : flat no . CARDINAL = QUANTITY . m ; flat no . CARDINAL = QUANTITY . m ; and flat no . CARDINAL = CARDINAL sq . m. Accordingly , the total usable surface area occupied by the tenants was QUANTITY . m.","On an unspecified date in DATE ORG asked ORG to determine the amount of the rent to be paid by him . On DATE the ORG gave judgment and determined the amount of rent at MONEY ( PLN ) per month . It ordered the applicant to pay costs in the amount of PLN MONEY .","According to ORG and Managing Agents\u2019 declaration of CARDINAL DATE ( see paragraph CARDINAL above ) , the amounts of rent to be paid by the applicant \u2019s tenants were as follows : for flat no . CARDINAL ( usable surface area of QUANTITY . m ) , occupied by GPE and GPE : ORG CARDINAL ; for flat no . CARDINAL ( usable surface area of QUANTITY . m ) , occupied by ORG : PLN MONEY ; for flat no . CARDINAL ( former attic ; usable surface area CARDINAL sq . m. ) , occupied by GPE : PLN MONEY . Dwelling no . CARDINAL ( apparently originally the bedroom of the applicant \u2019s parents , later used as a drying room ) , which had previously been used by ORG without any legal title or authorisation and for which he had paid no rent , was at that time locked and sealed by the managing agent . ORG was served with a notice ordering him to pay PLN MONEY for the unauthorised use of the dwelling on pain of being evicted .","At the hearing before the ORG on DATE , the Government informed the ORG that the rent paid by ORG and GPE on DATE was ORG .","Following a request by the ORG to produce evidence establishing the situation of the applicant \u2019s tenants , the Government supplied a certificate issued by FAC ( ORG Spo\u0142ecznej ) on DATE . The certificate stated that ORG had received assistance from the centre as from DATE . He was to obtain a periodical social welfare benefit for DATE and DATE . In DATE he had received assistance for housing purposes . The certificate further stated that ORG had earlier been assessed as having a \u201c disability of the second degree \u201d , the disability and its degree being subject to a medical verification in DATE .","On DATE , in reply to an enquiry by the Government in connection with the present case , ORG ( Miejski O\u015brodek Pomocy Spo\u0142ecznej ) stated that the applicant \u2019s tenants , GPE , GPE , GPE and GPE , were not receiving any assistance from the centre and they had not received any assistance from social services for DATE , that is from DATE onwards .","In reply to a question from the ORG as to the amount of controlled rent received by the applicant from DATE , the ORG stated that they had no details of the rent received by the applicant at the relevant time . However , they supplied indicators relevant for the fixing of a controlled rent , as determined by ORG for similar houses .","According to this information , in DATE the rent per square CARDINAL was CARDINAL old Polish zlotys ; from DATE , ORG CARDINAL ; from DATE to DATE , PLN CARDINAL.CARDINAL ; from DATE , ORG ; from DATE , ORG ; from DATE , PLN CARDINAL.CARDINAL ; from DATE , PLN CARDINAL.CARDINAL ; and from DATE to DATE , PLN CARDINAL.CARDINAL .","On DATE , following the coming into effect of ORG judgment of DATE , it became possible for landlords to increase the rent PERCENT of the reconstruction value of the dwelling ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) .","From DATE to DATE the relevant conversion index of the reconstruction value of the dwelling ( see paragraphs CARDINAL below ) was PLN CARDINAL . From DATE to DATE it amounted to ORG CARDINAL,CARDINAL.CARDINAL .","In DATE the conversion index was fixed at ORG . The Government submitted that the reconstruction value of the dwellings in the applicant \u2019s house was calculated on the basis of the following CARDINAL elements : PERCENT mentioned above , the usable surface area of the flats and the relevant conversion index ( ORG ) . The DATE rent per square metre in the applicant \u2019s house corresponded to PERCENT of the conversion index of the reconstruction value of QUANTITY divided by DATE ( PERCENT x PLN CARDINAL = PLN CARDINAL.CARDINAL\/CARDINAL ) . It accordingly amounted to MONEY CARDINAL per square metre . Having regard to the usable surface area of the house as indicated by the Government , the maximum DATE chargeable rent was GPE ( PLN CARDINAL.CARDINAL x QUANTITY m ) . Taking into account the surface area as indicated by the applicant , the relevant amount was ORG MONEY ( PLN MONEY x CARDINAL sq . m ) .","According to the applicant , in DATE the free - market rent for the CARDINAL flats in her house would have amounted to MONEY ( ORG ) DATE ( MONEY respectively , depending on the size of the flat ) . In DATE the rent would have decreased to ORG CARDINAL,CARDINAL per month ( USD CARDINAL + USD CARDINAL + USD CARDINAL ) . In DATE it would have been further reduced to ORG ( MONEY ) . She stated that her prognosis as to the decrease in rent was based on such factors as the devaluation of the house owing to its age and the decreasing demand and increasing supply of flats to let on the market .","In their referral request of CARDINAL DATE , the Government informed the ORG that CARDINAL of the applicant \u2019s flats had become vacant because ORG had moved out on DATE and PERSON and GPE had moved out on DATE . They also stated that PERSON had recently been offered a council flat by the authorities and was about to move out .","At the oral hearing , the Government said that PERSON was still living in the flat but that she was to move out in DATE .","On DATE the Government informed the ORG that PERSON had moved to a council flat on DATE .","LAW of DATE on the ORG management of housing and lease control ( Dekret z CARDINAL grudnia DATE r. o publicznej gospodarce lokalami i kontroli najmu ) , which came into force on CARDINAL DATE , introduced \u201c ORG management of housing matters \u201d , which also applied to dwellings or commercial premises in privately owned buildings ( see paragraph CARDINAL above ) .","DATE . Later , on DATE , the Decree of CARDINAL DATE on the lease of dwellings ( Dekret o najmie lokali ) came into force . Under its provisions , the ORG authorities administered all housing matters in the public and private sectors alike . The authorities were given power to issue a decision assigning to a tenant a particular flat in a privately owned building . Those provisions also laid down rules concerning rent control .","LAW introduced the \u201c special lease scheme \u201d , which replaced \u201c ORG management of housing matters \u201d , although it did not significantly change the principles on which the right to lease was based . For instance , the right to lease a flat in a building subject to \u201c ORG management \u201d did not originate in a civil contract but was conferred on a tenant by an administrative decision . The owner of such a building had no say as to who could live in his or her house and for how long . The special lease scheme applied to residential and commercial LOC .","Decisions on \u201c allocation of a dwelling \u201d ( przydzia\u0142 lokalu ) were , for all practical purposes , tantamount to \u201c granting \u201d a right to lease a dwelling ( or commercial LOC ) under the special lease scheme . They were issued by the relevant departments of the local council ( depending on which of the many reforms of the system of public administration was being carried out , those departments were called variously \u201c housing departments \u201d , \u201c departments of local management and environment \u201d , \u201c dwelling departments \u201d , etc . ) .","The Act came into force on DATE . It was intended to bring about a reform of the law governing the relationship between landlords and tenants . Although it abolished the \u201c special lease scheme \u201d and relaxed the control of rent by , for instance , allowing rents of commercial premises to be market - related and determined freely , as well as allowing rents for residential dwellings to be fixed freely in civil contracts between landlords and tenants , it maintained the control of rent of residential dwellings in which the right to lease a flat had earlier been conferred on a tenant by an administrative decision .","The DATE Act introduced the system of \u201c controlled rent \u201d ( czynsz regulowany ) and set out detailed regulations on the calculation of rent for residential dwellings which had so far been subject to the \u201c special lease scheme \u201d . The provisions concerning controlled rent , the ratio legis of which was to protect tenants in a difficult financial situation during the transition from a ORG - controlled to a free - market housing system , were to remain in force until DATE .","The DATE Act maintained , albeit with slightly modified wording , the rules concerning the protection of tenants against the termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease .","Section CARDINAL(CARDINAL ) of the LAW read :","\u201c CARDINAL . In the event of a tenant \u2019s death , his or her descendants , ascendants , adult siblings , adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation , shall , on condition that they lived in the tenant \u2019s household until his or her death , succeed to the tenancy agreement and acquire the tenant \u2019s rights and obligations connected with [ the lease of ] the flat , unless they relinquish that right to the landlord . This provision shall not apply to persons who , when the [ original ] tenant died , had title to another residential dwelling .","NORP In cases where there is no successor to the tenancy agreement , or where the successors have relinquished their right , the lease shall expire . \u201d","Section CARDINAL set out the following :","\u201c ( CARDINAL ) Under the lease agreement the tenant is obliged to pay the rent .","( CARDINAL ) In the cases provided for by the present statute , the rent shall be determined in a manner specified in this LAW ( controlled rent ) . In other cases the rent shall be determined freely .","( CARDINAL ) The rent shall be determined with reference to the physical state of the building in question , its surface area and the condition of the flat and other factors which increase or reduce the flat \u2019s value .","( CARDINAL ) The parties shall specify the rent in their agreement . \u201d","Section CARDINAL , which , pursuant to section CARDINAL(CARDINAL ) ( see paragraph CARDINAL below ) , also applied to privately owned flats subject to the previous special lease scheme , provided :","\u201c ( CARDINAL ) Subject to the reservation set forth in CARDINAL , controlled rent shall be paid by tenants of dwellings belonging to municipalities , ORG , ORG legal entities or legal entities administering dwellings for non - profit - making purposes , except for housing cooperatives .","( CARDINAL ) NORP The maximum controlled rent must not exceed PERCENT of the reconstruction value of the dwelling [ warto\u015b\u0107 odtworzeniowa lokalu ] per annum .","( CARDINAL ) The reconstruction value of the flat shall be the product of its usable area and the conversion index of QUANTITY of the usable area of the building .","( CARDINAL ) The [ relevant ] Governor shall , by means of an ordinance issued DATE , determine the conversion index of QUANTITY of the usable surface area of the residential building . \u201d","DATE . Under the transitional provisions of the LAW the right to lease a flat conferred on a tenant by an administrative decision was to be treated as a lease originating in a lease agreement concluded under the relevant provisions of LAW . Tenants of such flats were to pay controlled rent until DATE .","Under LAW of the LAW the lease of a flat on the basis of an administrative decision issued under LAW was to remain in force .","Section CARDINAL laid down further regulations in respect of such \u201c administrative leases \u201d . Its relevant parts provided :","\u201c ( CARDINAL ) Under this LAW , a lease which originated in an administrative decision on the allocation of a flat , or had another legal basis [ that existed ] before ORG management of housing or the special lease scheme was introduced in a given locality , shall be treated as a contractual lease signed for an indefinite period under the provisions of this Act .","( CARDINAL ) NORP Until DATE inclusive , the rent for flats let in the manner specified in subsection ( CARDINAL ) in dwellings owned by natural persons shall be determined in accordance with the provisions concerning controlled rent .","...","( CARDINAL ) If an owner referred to in subsection ( CARDINAL ) intends to dwell in his flat and with that intention has vacated the flat which he has hitherto rented ... from the municipality , the tenant shall be obliged to vacate the owner \u2019s flat and move into the flat [ offered to him ] , provided that the [ condition of ] the flat in question complies with the requirements laid down by this LAW in respect of alternative accommodation . If such is the case , the owner may terminate the lease under section CARDINAL(CARDINAL ) .","...","( CARDINAL ) If the owner \u2019s adult child or parents are to dwell in his flat , subsection ( CARDINAL ) ... shall apply by analogy .","( CARDINAL ) If the landlord has offered the tenant alternative accommodation which he or she owns himself or if , at the owner \u2019s request , such alternative accommodation has been provided by the municipality , subsection ( CARDINAL ) shall apply by analogy . \u201d","Section CARDINAL of the LAW set out a detailed list of LOC duties under a tenancy . It applied both to landlords letting flats for a freely determined , market - related rent and to landlords receiving controlled rent . It also listed the types of maintenance work to be carried out by landlords under lease agreements . The relevant parts of that section provided :","\u201c ( CARDINAL ) The landlord shall ensure that the existing technical facilities in the building are in working order ; shall enable the tenant to use lighting and heating in the dwelling ; shall ensure that the dwelling is supplied with cold and hot water ; and shall ensure the proper functioning of lifts , the collective aerial , and other facilities in the building ;","...","( CARDINAL ) The landlord shall , in particular :","maintain in working order and keep clean any shared LOC and facilities in the building ; the same should apply to the vicinity of the building ;","NORP carry out repairs in the building and its dwellings and facilities , and restore any building which has been damaged , regardless of the cause of such damage ; however , the tenant shall bear the costs of repairing damage for which he is liable ;","carry out repairs in the dwellings , repair or replace installations and technical facilities and , in particular , carry out repairs for which the tenant is not responsible ; in particular , he shall :","( a ) repair and replace the water supply installation in the building and the gas and hot water supply installations , and repair and replace the sewage , central heating ( including radiators ) , electricity , telephone and collective aerial installations \u2013 the latter , however , without fittings ;","( b ) replace or repair furnaces , window and door frames , floors , floor linings and plasterwork .","... \u201d","In practice , if such a tenant had not fallen into CARDINAL months\u2019 arrears of controlled rent , the lease could not be terminated unless he had used the flat \u201c in a manner inconsistent with its function \u201d , damaged the flat or the building , repeatedly and flagrantly disturbed the peace and public order or had sublet the flat without obtaining the prior consent of the landlord ( sections DATE and CARDINAL of the DATE Act ) .","However , even if a tenant had fallen into rent arrears exceeding DATE , a landlord was obliged to notify him in writing of his intention to terminate the lease agreement and to grant him DATE to pay off both the arrears and DATE rent .","If , following the termination of the lease agreement , the tenant did not vacate the flat ( which was very often the case , given the acute shortage of cheap dwellings for rent and the high costs involved in buying a flat ) , the landlord had to bring an action for eviction against him . If an eviction order was issued , the landlord , in order to have it enforced and the flat vacated , had to ask the relevant municipality to provide the tenant with \u201c substitute accommodation \u201d . As there was a very short supply of such accommodation , the enforcement of the eviction order and vacation of the LOC could take DATE . Once an eviction order had become final , the tenant , as long as he lived in the flat , was obliged to pay so - called \u201c compensation for extra - contractual use \u201d ( odszkodowanie za bezumowne korzystanie ) , equal to PERCENT of the current rent . If that sum did not cover the losses incurred by the landlord in connection with maintenance of the flat , he could sue the tenant for supplementary compensation .","On DATE ORG , ruling on a point of law referred to it by ORG , declared unconstitutional section CARDINAL(CARDINAL ) read in conjunction with , inter alia , section CARDINAL of LAW ( see paragraphs CARDINAL above ) . It found that those provisions were in breach of LAW ( admissible limitations on property rights ) read in conjunction with LAW rule of law and social justice ) and LAW ( principle of proportionality ) of LAW ( see paragraphs CARDINAL and CARDINAL - CARDINAL below ) , and LAW No . CARDINAL , because they placed a disproportionately heavy and , from the point of view of the permitted restrictions on the right of property , unnecessary financial burden on the exercise of property rights by landlords owning flats subject to rent control .","The court ruled that the unconstitutional provisions should be repealed on DATE . That in practice meant that by that date ORG had to enact new , constitutional , legislation dealing with the matter .","NORP Before giving its judgment , ORG asked the President of ORG ( Prezes PERSON i PERSON ) for information concerning the implementation of the CARDINAL Act and , more particularly , the manner of determining the \u201c conversion index of QUANTITY of the usable surface area of the residential building \u201d as referred to in section CARDINAL of the Act . According to the information received , levels of controlled rent had never reached the statutory PERCENT of the reconstruction value referred to in section GPE ) but were determined by the municipalities at PERCENT of that figure . As a result , the levels of controlled rent covered merely PERCENT of the maintenance costs of residential dwellings . The rest had to be covered by landlords from their own resources . That did not allow them to put aside any savings for repairs .","In the judgment , ORG attached much importance to the fact that the relevant regulations concerning controlled rent had brought about a situation whereby the expenses incurred by owners of dwellings were much higher than the rent paid by tenants and that the former \u201c had no influence on how the rates of controlled rent were determined \u201d . In its view , that shortfall of the rent actually received had resulted in the progressive reduction of the value of tenement houses and this , with the passage of time , entailed consequences similar to expropriation .","The judgment contains extensive reasoning , the gist of which can be summarised as follows .","\u201c CARDINAL of the essential elements of the right of property is the possibility of deriving profit from the object of ownership , which is of particular importance in a market economy . The legislature may regulate and limit this right in view of , among other things , the social context of enjoyment of property and duties towards the community that are inherent in ownership . In exceptional cases , ... it is even [ acceptable ] to exclude temporarily the possibility of ... deriving an income from goods that are the subject of ownership . However , if the limitations on a property right go even further and the legislature places an owner in a situation in which his property necessarily inflicts losses on him , while at the same time imposing on him a duty to maintain the property in a specific condition , it can be said that there is a limitation which impairs the very essence of that right . ...","ORG observes that the applicable provisions very seriously limit the possibility for a landlord to use and dispose of his dwellings , as referred to in section CARDINAL(CARDINAL ) of the CARDINAL Act . In particular , under this section all earlier tenancy relationships , in so far as they originated in administrative decisions on the allocation of a dwelling ... were transformed into contractual leases for an indefinite period . ...","ORG will not assess the compatibility of those regulations with LAW , as this is not the object of its ruling . It merely observes that , against that background , the owner of a building is practically deprived of any influence on the choice of tenants in his building and on whether the lease relationships with those persons should continue . ...","Thus , the possibility [ for a landlord ] to enjoy and dispose of property is very considerably limited . While it is not totally extinguished , as he may still sell his building ( dwelling ) or take out a mortgage on it and there are no restrictions on succession rights , the exclusion of the owner \u2019s right to dispose of dwellings subject to the provisions of the DATE Act results in the depreciation of the market value of the building . By the same token , other attributes which have so far not been taken away from the owner , such as the possibility of enjoying and disposing [ of his property ] , are substantially reduced and his property right becomes illusory .","At the same time , the legal provisions impose on the owner of the building a number of onerous duties ... Not only do most of the applicable laws impose specific duties on the owner but they also provide for specific penalties for failure to comply with those duties or to discharge them properly . ...","ORG considers that LAW and , especially , its practical application have not secured a sufficient mechanism for balancing the costs of maintaining a building , its equipment and surroundings and the income from controlled rent . ...","ORG considers it necessary to draw attention to CARDINAL further points which are relevant for the situation of the landlord .","Firstly , the inadequacy of controlled rent vis - \u00e0 - vis real expenses for maintenance of a building does not allow ... [ landlords ] to put aside savings for repairs and for keeping the building in a good condition . As a result , the tenement houses are gradually losing value . In terms of property rights , this should be perceived as a process of gradual deprivation of this right , leading , with the passage of time , to results similar to expropriation . Also , it has a general impact on the community because many tenement houses are approaching the time of their \u2018 technical ORG and , in consequence , not only will the owner lose his property but tenants will also lose the possibility of housing , which will hardly be compatible with LAW .","Secondly , the inadequacy of controlled rent vis - \u00e0 - vis real expenses for maintenance of a building has not been duly recognised by the tax laws ... [ Under those laws ] , landlords are treated in the same way as businessmen or persons letting dwellings for a profit and must bear the financial consequences of all losses caused by the lease of their dwellings . ...","[ As regards the principle of proportionality laid down in LAW ]","... it may be justified to fix rent in such a way that it will not be disproportionate to the financial standing of tenants , so that it will be possible for them to maintain a decent standard of living ( or at least a minimum standard ) after paying the rent . Thus , it is in conformity with the contemporary perception of a \u2018 social ORG to demand some sacrifice from all members of society for the benefit of those who can not provide subsistence for themselves and their families . By the nature of things , the extent of that sacrifice depends on the level of income and imposes a heavier burden on those who are better off . By the nature of things , the owners of property may be required to make sacrifices , according to the general principle that \u2018 ownership entails ORG . However , the distribution of burdens among specific members of society can not be arbitrary and must maintain rational proportions .","In the circumstances obtaining in GPE , under LAW it may be justified to maintain the provisions limiting landlords\u2019 property rights and , more particularly , excluding unrestricted freedom in fixing rates of rent and other charges collected from tenants . ... It may still \u2013 in any event in the transitional DATE be justified to impose wider restrictions on property rights , precluding the freedom to derive profit by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building .","However , an assessment of the DATE Act leads to the conclusion that the applicable restrictions do not stop there . The present regulations deliberately set the levels of controlled rents below the costs and expenses actually incurred by owners . That , in itself , would not necessarily have had to be considered unconstitutional had there been any parallel legal mechanism compensating for incurred losses . No such mechanisms have been set up . In consequence , the applicable provisions are based on the premise that property must \u2013 until DATE entail losses for the owner and that , at the same time , the owner has a duty to incur expenses to maintain his property in a particular condition .","That means that LAW placed the main burden of the sacrifices that society had to make for tenants , or at least for tenants in a difficult financial position , on the owners of property . Besides , other remedies \u2013 such as , for instance , subsidising from public funds the costs of maintaining and repairing buildings referred to in section CARDINAL ) , ensuring full recognition in the tax regulations for losses and expenses incurred by landlords and making the level of rent dependent on the tenant \u2019s income \u2013 have not been employed . Instead , the simplest means ( being apparently the cheapest in social terms ) have been applied , namely setting a low maximum level of rent and allowing the municipalities to make exceptions to that level . Consequently , it has been assumed that owners will cover the remaining costs of maintaining their property out of their own pockets . No proportionality whatsoever has been maintained in respect of the distribution of burdens ( sacrifices ) among the owners and the other members of society .","ORG would stress once again that in the present context there is a constitutionally acknowledged necessity to protect the rights of tenants ... and this may be reflected in , among other things , provisions fixing a maximum level of rent . However , there is no constitutional necessity to afford them such protection mostly at the expense of private individuals \u2013 the owners of dwellings DATE because the duty to help the underprivileged and [ the duties inherent in ] social solidarity are incumbent not only upon those persons . It is possible to adopt other legal solutions so as to secure at the same time the necessary protection to tenants and the minimum financial means needed to cover the requisite costs to the landlords . ... It is not for ORG to indicate concrete solutions and to determine the ratio of costs to be incurred by tenants , landlords and the community as a whole . However , this ORG considers that there are no constitutional considerations which justify imposing the greater part of those costs on the landlords . ...","Consequently , section CARDINAL(CARDINAL ) is incompatible with the LAW . A limitation on the right of property ... which is not \u2018 ORG does not satisfy the constitutional requirements of proportionality .","[ Other considerations ]","The finding that section CARDINAL(CARDINAL ) infringes the principle of proportionality makes it unnecessary for ORG to determine whether that provision also infringes the very essence of the right of property since [ a further finding to that effect ] will not affect the merits of the ruling . It should merely be noted in passing that the question whether the \u2018 ORG of the right of property has been preserved must also be assessed ... against the background of the combination of existing limitations on this right . ... The manner in which [ rent control ] has been effected by section CARDINAL(CARDINAL ) taken together with other provisions regarding privately owned buildings has [ resulted ] in the owners being deprived of even the slightest substance of their property rights .","It is ORG opinion that , in consequence , the right to derive profit from property , which is an important element of the right of property , has been destroyed and , at the same time , the second element , the right to dispose of CARDINAL \u2019s property , has been stripped of its substance . In consequence , the right of property has become illusory and unable to fulfil its purpose in the legal order based on the principles listed in LAW [ principles of social market economy , economic activity , private ownership , solidarity , dialogue and cooperation ] .","[ As regards the constitutional aspects of the situation of tenants ]","A kind of obligation has been placed on the legislature to ensure that up to DATE tenancy relationships concerning municipal dwellings and [ privately owned ] dwellings should retain their present form , including the level of rent [ PERCENT of the reconstruction value of the dwelling ] ... ORG considers that , having regard to the principle of maintaining ORG confidence in the ORG and the law made by it and the principle of legal certainty , which ensue from the rule of law laid down in LAW and are binding on the legislature , renouncing that obligation will be admissible only in the event of exceptional public necessity . At present , there is no such necessity ... It should be noted in passing that setting a time - limit for the operation of the rent - control scheme in buildings owned by natural persons also places an obligation on the legislature \u2013 for the benefit of landlords \u2013 to repeal the scheme in its present form by DATE . This obligation should also be seen from the perspective of the principle of maintaining ORG confidence in the ORG .","[ Final considerations ]","The constitutional inadmissibility of setting the income received by landlords below a certain minimum does not automatically mean that the rent chargeable to tenants has to be increased , because that problem can be resolved by allocating public financial resources . \u201d","In a judgment of DATE , ORG held that section CARDINAL of the CARDINAL LAW ( see paragraph CARDINAL above ) , laying down landlords\u2019 obligations , was incompatible with the constitutional principles of the protection of property rights and social justice because , in particular , it placed a heavy financial burden on them , a burden which was in no way proportionate to the income from controlled rent . ORG ruled that that provision should be repealed by DATE .","Following ORG rulings of DATE and DATE , ORG adopted a new law governing housing matters and relations between landlords and tenants . The relevant statute DATE that is to say , the PERSON of DATE on the protection of the rights of tenants , housing resources of municipalities and on amendments to LAW ( LOC o ochronie praw lokator\u00f3w , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) ( \u201c the DATE LAW ) \u2013 came into force on DATE . It repealed the DATE Act and replaced the previous scheme of controlled rent with another statutory rent - control mechanism that restricted the possibility for landlords to increase levels of rent .","The DATE Act was then successively amended . The most important amendments , adopted by ORG on CARDINAL and DATE , came into force on DATE ( see paragraphs CARDINAL - CARDINAL below ) .","Section DATE CARDINAL Act listed situations where a landlord could increase rent . The relevant parts of that provision , in the version applicable until DATE ( see paragraph CARDINAL below ) , read as follows :","\u201c ( CARDINAL ) Increases in rent or other charges for the use of a dwelling , apart from charges that do not depend on the landlord [ e.g. those for electricity , water , central heating , etc . ] may not be made more often than once DATE ;","( CARDINAL ) If a landlord increases other charges that do not depend on him , he shall be obliged to provide the tenant with a table of charges and the reasons for the increase ;","( CARDINAL ) In DATE the increase in rent or other charges , except for charges that do not depend on a landlord , shall not exceed the average general DATE increase in prices for consumer goods and services in DATE in relation to DATE by more than :","PERCENT \u2013 if the annual rent does not exceed PERCENT of the reconstruction value of the dwelling ;","PERCENT \u2013 if the annual rent is PERCENT but not PERCENT of the reconstruction value of the dwelling ;","PERCENT \u2013 if the annual rent is PERCENT of the reconstruction value of the dwelling .","Information on the increase in prices referred to in the first sentence [ of this subsection ] shall be communicated in official bulletins of the President of ORG ;","...","( CARDINAL) The reconstruction value of a dwelling shall be the product of its usable area and the conversion index of the reconstruction cost of QUANTITY of the usable area of the residential building . ... \u201d","A further restriction on rent increases by landlords followed from section CARDINAL ) of the CARDINAL Act , which provided that controlled rent could not exceed PERCENT of the reconstruction value of the flat . That provision was in force until DATE , the deadline that had already been set under LAW ( see paragraph CARDINAL above ) .","Section CARDINAL(CARDINAL ) read :","\u201c Until DATE , in all tenancy relations subsisting before the date of entry into force of this LAW , the level of rent in respect of dwellings that were subject to the controlled - rent scheme on the date of the entry into force of this LAW , may not exceed PERCENT of the reconstruction value of the dwelling per year . \u201d","Section CARDINAL of the DATE Act listed situations in which a landlord could terminate a lease agreement that originated in an administrative decision .","Section CARDINAL(CARDINAL ) and ( CARDINAL ) read in its relevant parts as follows :","\u201c ( CARDINAL ) If a tenant is entitled to use a dwelling for rent , the landlord may give notice only for reasons listed in this provision ... Notice should , on pain of being null and void , be given in writing .","( CARDINAL ) The landlord may give DATE notice effective at the end of a calendar DATE , if :","NORP the tenant , despite a reminder in writing , still uses the dwelling in a manner contrary to the terms of the agreement or in a manner inconsistent with its function , thus causing damage ; or if he or she has damaged equipment designed for the common use of residents ; or if he or she has flagrantly or repeatedly disturbed the peace , thus severely upsetting [ czyni\u0105c uci\u0105\u017cliwym ] the use of other dwellings ; or","NORP the tenant has fallen into CARDINAL months\u2019 arrears of rent or other charges for the use of the dwelling and , despite being informed in writing of the landlord \u2019s intention to terminate the agreement and given DATE to pay off both the arrears and the current DATE \u2019s rent , has not paid those amounts ; or","NORP the tenant has sublet the flat or part of it , or allowed it , or part of it , to be used free of charge by another without the landlord \u2019s authorisation ; or","NORP the flat used by the tenant has to be vacated in view of the impending demolition or substantial renovation of the building ...","Under section ORG ) , a landlord who received rent which was PERCENT of the reconstruction value of the dwelling could terminate the agreement if the tenant had not lived in the flat for DATE or if he had title to another flat situated in the same town .","Section CARDINAL(CARDINAL ) provided that a landlord could terminate the agreement with CARDINAL months\u2019 notice if he intended to dwell in his own flat and had provided the tenant with \u201c alternative accommodation \u201d ( lokal zast\u0119pczy ) or the tenant was entitled to a dwelling which met the conditions for \u201c alternative accommodation \u201d .","Under section CARDINAL(CARDINAL ) , a landlord could terminate the agreement with DATE notice if he intended to dwell in his flat but had not provided the tenant with any \u201c substitute accommodation \u201d .","NORP However , section CARDINAL(CARDINAL ) further limited the possibility of terminating leases . It stated that if a landlord intended to terminate a lease on the grounds mentioned in section CARDINAL(CARDINAL)(CARDINAL ) ( rent arrears unpaid despite the fact that a warning notice had been served and a further time - limit had been set for payment ) and if the tenant \u2019s income would entitle him to obtain a lease on \u201c social accommodation \u201d ( lokal socjalny ) belonging to the municipality , no notice could be given unless the landlord had proposed a settlement to the tenant concerning the arrears and running charges .","As regards situations where , despite the termination of the lease agreement , the tenant did not vacate the flat , the landlord had to DATE as under the previous regulations \u2013 bring an action for eviction against him and , even if he obtained an eviction order , could not repossess the flat until the tenant had obtained a substitute dwelling from the municipality .","The CARDINAL Act , in the version applicable up to CARDINAL DATE , did not contain any specific provisions setting out the duties of landlords and tenants with regard to maintenance and repairs of dwellings and residential buildings . Those issues were governed partly by the relevant provisions of LAW ( which applied in so far as a given matter had not been addressed by LAW ) and partly by LAW of DATE ( Prawo budowlane ) ( \u201c the LAW \u201d ) , which lays down the general duties of owners of buildings .","Article CARDINAL of LAW , which lays down a general rule , reads in its relevant part :","\u201c CARDINAL . NORP The landlord should give the object [ of a lease ] to the tenant in a usable state and should keep it in such a state for the duration of the lease .","NORP Minor repairs related to the normal use of the object [ of the lease ] are incumbent on the tenant . \u201d","LAW , in its relevant part , reads :","\u201c CARDINAL . After the termination of a lease , the tenant shall be obliged to return the object [ of the lease ] in a condition not worse [ than when he took possession of it ] ; however , he or she shall not be responsible for any deterioration of the object caused by reasonable wear and tear . \u201d","Article CARDINAL lists minor repairs for which a tenant is responsible . It reads as follows :","\u201c Minor repairs for which the tenant is responsible are , in particular : minor repairs of floors , doors and windows , painting of walls and floors and the inner side of the flat \u2019s entrance door , as well as minor repairs to installations and technical equipment that enable the use of lighting , heating , the water supply and the sewage system . \u201d","Section CARDINAL of LAW provides :","\u201c The owner or manager of a building shall be obliged to maintain and use the building in accordance with the rules set out in section CARDINAL(CARDINAL ) . \u201d","Section CARDINAL(CARDINAL ) states :","\u201c The conditions for use of a building shall be secured in accordance with its purpose , in particular in respect of :","( a ) the water and electricity supply and , if need be , the supply of heating and fuel , regard being had to their effective use ;","( b ) sewage , waste disposal and rainwater drainage . \u201d","The relevant part of LAW provides :","\u201c CARDINAL . In the event of a tenant \u2019s death , the following persons may succeed to the tenancy agreement : his or her spouse if the latter has not been a party to that agreement , his or her children , his or her spouse \u2019s children , any other persons to whom he was obliged to pay maintenance , and a person living with the tenant in de facto marital cohabitation .","NORP The persons referred to in paragraph CARDINAL shall succeed to the tenancy agreement if they lived in the tenant \u2019s household until his or her death .","NORP If there are no persons in the categories referred to in paragraph CARDINAL , the lease agreement shall expire . \u201d","On DATE the Ombudsman ( PERSON ) made an application to ORG and asked , inter alia , that section CARDINAL(CARDINAL ) of the CARDINAL Act ( see paragraph CARDINAL above ) be declared incompatible with the constitutional principle of the protection of property rights . The ORG referred to numerous complaints he had received from landlords , who claimed that levels of rent as determined under that section did not cover the basic maintenance costs of residential buildings . He also submitted that the recent rules for the determination of rent put landlords at a bigger disadvantage than the rules which had been laid down in the DATE Act and which had already been repealed as being unconstitutional .","He criticised the legislation on the ground that it was exceptionally inconsistent . He referred , in particular , to DATE in his view erroneous \u2013 statutory correlation between rent increases and the increase of prices for consumer goods and services , which were not related in reality to the costs of maintaining a building . He added that there were still no provisions to allow the landlords to recover losses incurred in connection with expenses for the maintenance of property .","NORP The representatives of ORG and ORG ) asked ORG to reject the application .","ORG invited organisations of landlords and tenants to take part in the proceedings and submit observations in writing . ORG , ORG ( ORG ) and ORG ( Og\u00f3lnopolskie ORG ) filed their pleadings on CARDINAL , DATE and DATE respectively .","GPE Owners supplied considerable statistical material , showing that the level of controlled rent represented on average PERCENT of the reconstruction value of the building , which in turn amounted to PERCENT of the costs of maintenance of residential buildings . They presented a sample calculation of DATE rent based on the average reconstruction value , the average size of a flat and the average gross income .","Assuming that the average reconstruction value was ORG , that PERCENT of that value was the average maximum reached by controlled rent and that the average flat had a surface area of QUANTITY . m , the average DATE rent amounted to ORG CARDINAL . That amount , they stressed , represented PERCENT of the average gross income , whereas , according to them , in ORG countries rent accounted for PERCENT of the average gross income .","The All - Polish ORG submitted , among other things , that the impugned legislation was in breach of the constitutional principle of proportionality because a group of CARDINAL landlords had to bear the main burden of social protection afforded by ORG to CARDINAL tenants , without any financial support from CARDINAL NORP taxpayers .","NORP ORG considered that the contested provisions were compatible with the LAW . It drew attention to the fact that a large group of tenants , especially those who had been granted the right to a lease by means of administrative decisions , were in a poor financial position . It stressed that during the period of ORG management of housing matters those tenants had made investments and had thereby contributed to the maintenance costs of buildings , even though they had not been legally obliged to do so . At the hearing , in reply to questions from the judges , the President of ORG admitted that tenants paying controlled rent also included well - off persons , in respect of whom an increase in rent would be justified .","On DATE ORG , sitting as a full court , declared section CARDINAL(CARDINAL ) of the DATE Act unconstitutional as being incompatible with LAW and CARDINAL and LAW ( see paragraphs CARDINAL and CARDINAL below ) . The provision was , accordingly , repealed . The repeal took effect on DATE , the date of the publication of the judgment in ORG ) .","In the reasoning of its judgment , ORG extensively cited its judgment of DATE ( see paragraphs CARDINAL - CARDINAL above ) .","In conclusion , it held that the fact that LAW had abolished the scheme of rent control had not improved the situation of landlords because , instead , it had introduced a defective mechanism for controlling increases in rent . In its opinion , section GPE ) had not only \u201c frozen \u201d the disadvantageous position of landlords , a situation which had already been found to be incompatible with the LAW , but had also , owing to the changing economic circumstances , significantly reduced any possibility of increasing rent to cover expenses incurred by them in connection with the maintenance of property .","The court repeated what it had already stated in its judgment of DATE , namely that the relevant provisions placed the main burden of the sacrifices that society had to make for the benefit of tenants in a difficult financial position on the owners of property . It went on to find that section GPE ) perpetuated the state of a violation of property rights that had subsisted under LAW , especially as landlords had not been relieved of any of their previous duties in respect of maintenance of property .","The main thrust of ORG reasoning was as follows :","\u201c During the transition from controlled rent to contractual rent it is necessary to control the increase in rent . ... In most NORP countries legislative bodies exercise control over rent increases . The introduction of such a mechanism into NORP law seems to be particularly justified and the need for it follows quite evidently from the shortage of flats and the absence of a lease market which would influence rates of rent . This very low supply of flats for rent has caused a situation in which tenants are exposed to undue demands from landlords . Hence there is a need to regulate rent increases .","While recognising this necessity , ORG is convinced that the mechanism introduced by the impugned provision is defective and is objectively inappropriate for accomplishing the aims pursued by the legislature . ...","To begin with , ORG will examine the impact of the operation of section CARDINAL(CARDINAL ) of the DATE Act on landlords who were subject to controlled rent under LAW . In this ORG \u2019s view , the contested provision has not only \u2018 frozen\u2019 the disadvantageous position of landlords subsisting LAW , a situation which was already found to have been incompatible with the LAW , but has also actually aggravated that situation on account of changing economic circumstances . ...","At the time when the present legislation came into force , tenants paid rent determined by the municipalities . [ The rent paid ] , according to the information supplied by ORG , covered merely PERCENT of the costs of maintenance of residential buildings . LAW did not increase rent to the level that could have been established according to the principles set out by ORG in [ the judgment of DATE ] . Nor did the legislature give landlords an opportunity to increase rent to a level ensuring recovery of their expenses . LAW has frozen rates of rent and fixed them as a reference level for the calculation of future increases . ...","In ORG opinion , in order to arrive at reasonable levels of rent it is necessary to take CARDINAL of the following CARDINAL measures : either a CARDINAL - off increase in deflated rates of controlled rent , accompanied by a restrictive protection of tenants against further increases or , while freezing the applicable rates , permitting considerable increases in relatively rapid succession until an acceptable level has been reached . However , the legislature fixed an unreasonably low basic rent and allowed only strictly regulated increases , correlated with the inflation rate . The legislature did not take into account the fact that the rate of inflation was constantly declining , which means that permissible increases have been insignificant , amounting merely to a few percentage points of the basic rent and giving no opportunity , for purely mathematical reasons , to reach levels that would ensure profitability , or at least recovery of maintenance costs . The decrease in the inflation rate , although a generally positive sign of economic stability , has resulted in the stagnation of rents at low levels .","The deterioration of the situation of landlords receiving controlled rent is also shown by a comparison of rent increases under LAW with increases permissible under LAW . As transpires from information supplied by ORG [ in respect of the operation of the DATE Act ] , at the relevant time , municipalities raised controlled rent DATE to a significant extent : in DATE , when the inflation rate was PERCENT , by PERCENT on average , but in DATE , when the inflation rate was PERCENT , by PERCENT . The pace of transition to reasonable levels of rent was faster than at present , if only because municipalities , themselves owning residential buildings , had a strong interest in securing genuine increases in rent . Finally , the previous regulations gave landlords the hope of relaxing rent policy . Irrespective of the rates of controlled rent imposed on them by municipalities , they knew that from DATE they would be able to negotiate rents freely . However , that encouraging prospect was wiped out by section CARDINAL(CARDINAL ) of the CARDINAL Act . Even though the ceiling of PERCENT will no longer apply after [ DATE , given the provision of section GPE ) , this ceiling will not be reached in reality .","In ORG view , the above circumstances give sufficient grounds to find that the situation of landlords who formerly received controlled rent is now unquestionably less favourable than it used to be under LAW . ... [ O]n the contrary , section GPE ) has perpetuated the violation of the right of property . At this point , it is necessary to determine how the landlords\u2019 situation looks in other respects , apart from the restrictions on rent increases . If , following the ... judgment of CARDINAL January CARDINAL , the legislature had significantly changed any aspect of the legal position of landlords , thereby compensating for losses resulting from reduced rent , the evaluation of levels of rent in the present case would have had to be based on other criteria than those referred to by this ORG in DATE .","Since DATE there have been no changes to legislation , apart from the enactment of the CARDINAL Act , which seriously aggravated the situation of landlords . They still bear the burden of obligations imposed by LAW , whose non - fulfilment , as stressed by the ORG , is subject to penalties . There have been no changes to regulations on income tax , at least in respect of deductions from tax ( or from taxable income ) of amounts spent on the maintenance of buildings in which flats are let to tenants . Nor has the legislature introduced preferential loans for repairs . ... ORG also points out that LAW has not materially improved the situation of landlords in respect of termination of leases . ...","Accordingly , it is fully justified to rely on this ORG \u2019s findings in respect of section CARDINAL(CARDINAL ) of the CARDINAL Act . Even though the provisions under consideration have changed , and the ORG is now considering completely different legal instruments ( control of rent increase as opposed to the scheme of rent control under LAW ) , the core of the dispute and the issues under consideration remain essentially the same , namely the situation of landlords on whom the legislature has imposed reduced levels of rent . In addition , section GPE ) leads to a difference in the treatment of landlords , depending on whether they are parties to lease relationships formerly governed by the rent - control scheme , or to lease contracts based on freely determined rents . As shown above , in practice the rent increase mechanism adversely affects the first group of landlords and , at the same time , unjustifiably and at the tenant \u2019s expense , favours the second group .","In view of the foregoing , the Constitutional Court finds that the [ operation of ] the contested provision is tantamount to the continued violation of the right of property vested in a specific group of landlords , namely those who entered into a lease relationship by virtue of administrative decisions on the allocation of a dwelling , or on another basis , prior to the introduction of ORG management of housing matters in a given municipality . Not only did the legislature fail to adjust rates of controlled rent , despite their having been found to be unconstitutional , but in fact , through the introduction of restrictive provisions on rent increases , it practically froze such rents at levels that can not be regarded as consistent with constitutional guarantees of the right of property . ...","It is worth reiterating , having regard to the [ judgment of DATE ] , that the restrictions in question are undoubtedly guided by the need to protect public order and the rights of other persons , namely tenants . However , according to ORG case - law , LAW requires restrictions on the rights guaranteed therein to be necessary . In respect of the rent [ control scheme ] , ORG qualified as \u2018 necessary\u2019 DATE at least during the transitional period \u2013 the restriction on the right of property \u2018 precluding the freedom to derive profit , by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the ORG . A reduction below that minimum was seen by this ORG as unconstitutional . Placing the financial burden of subsidising rent on a single social group , namely landlords , was also considered to have been unconstitutional since \u2018 the duty to help the underprivileged and [ the duties inherent in ] social solidarity are incumbent not only upon those ORG . ORG envisaged and still envisages the possibility of applying other legal solutions ... which would result in a more uniform social distribution of the burden linked to the necessity to satisfy housing needs . It is therefore unnecessary to place the entire burden on the single group of landlords . Consequently , ORG considers that the restriction resulting from section CARDINAL(CARDINAL ) ... does not meet the criteria established by the principle of proportionality and goes beyond the tolerable extent of limitations on the right of property set out in LAW .","ORG is not competent to fix minimum levels of rent ... [ However , ] from the point of view of the protection of landlords\u2019 rights , [ it ] stresses again the crucial importance of the correct determination of the costs of maintenance and upkeep of residential buildings . This constitutes the absolute minimum rate . ...","As regards the implementation of the constitutional rights of tenants , ORG stresses that , although in the present judgment section CARDINAL(CARDINAL ) of the CARDINAL LAW has been found unconstitutional , the LAW still imposes significant restrictions on the freedom to increase rents . The most important of them is definitely section CARDINAL ) , which remains in force and which provides that ... up to DATE inclusive the annual rent may not exceed PERCENT of the reconstruction value of the dwelling . \u201d","On DATE the Constitutional Court heard a constitutional complaint lodged by a certain PERSON , challenging the constitutionality of section CARDINAL(CARDINAL ) and section CARDINAL(CARDINAL ) of LAW ( see paragraphs CARDINAL and CARDINAL above ) . He submitted that those provisions were incompatible with LAW protection of property rights ) of the LAW read in conjunction with LAW ( principle of proportionality ) .","In their written pleadings , ORG and representatives of ORG asked the court to discontinue the proceedings in so far as they concerned the constitutionality of section CARDINAL(CARDINAL ) since it had already been repealed by the judgment of DATE , and to hold that section DATE ) was compatible with the LAW .","At the oral hearing , ORG stated that he intended to pursue his complaint only in so far as section DATE ) was concerned .","ORG held that section DATE ) was compatible with the LAW and found :","\u201c As emerges from [ ORG judgments of DATE and DATE ] , the question of maintaining the maximum ceiling on rent has already been examined by this ORG and the measure was considered to have been necessary from the point of view of public order \u2013 at least in the transitional period . The need to protect tenants against unduly high rents is justified by the housing situation in GPE , which is the consequence of ORG management of housing and has resulted in a commonly experienced shortage of flats .","A limitation on levels of rent \u2013 such as the one introduced by the contested provision \u2013 does not impair the essence of the right of property because it does not deprive owners of essential elements of that right . It has to be stressed that the right to a lease is one of the pecuniary rights protected by LAW and that restrictions on the right of property are inherent in many pecuniary rights , including the right to a lease . The contested section has set a maximum ceiling on rents with a clear time - frame \u2013 up to DATE and this also may have an impact on whether a temporary restriction on the right of property may be regarded as not impairing its essence .","It also has to be stressed that the setting of a clear time - frame in section DATE ) implies an obligation of the legislature towards landlords , which must be assessed from the point of view of the principle of ORG confidence in the ORG and the law made by it . \u201d","Article CARDINAL of the LAW states :","\u201c GPE shall be a democratic ORG ruled by law and implementing the principles of social justice . \u201d","Article CARDINAL lays down the basic principles on which GPE \u2019s economic system is founded . It reads :","\u201c A social market economy , based on freedom of economic activity , private ownership , and solidarity , dialogue and cooperation between social partners , shall be the basis of the economic system of GPE . \u201d","Article CARDINAL \u00a7 CARDINAL reads :","\u201c Any limitation on the exercise of constitutional freedoms and rights may be imposed only by statute , and only when it is necessary in a democratic ORG for the protection of its security or public order , or for the protection of the natural environment , health or public morals , or the freedoms or rights of other persons . Such limitations shall not impair the essence of freedoms and rights . \u201d","Article CARDINAL protects the right of property in the following terms :","\u201c CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .","Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .","The right of ownership may be limited only by means of a statute and only to the extent that this does not impair the substance of such right . \u201d","Article CARDINAL refers to the protection of tenants . It reads as follows :","\u201c CARDINAL . NORP The public authorities shall pursue policies conducive to satisfying the housing needs of citizens , in particular combating homelessness , promoting the development of low - income housing and supporting activities aimed at acquisition of a home by each citizen .","Protection of the rights of tenants shall be established by statute . \u201d","Article CARDINAL provides :","\u201c The public authorities shall protect consumers , customers , hirers or lessees against activities threatening their health , privacy and safety , as well as against dishonest market practices . The scope of such protection shall be specified by statute . \u201d","After DATE , as a result of ORG judgment , it became possible for landlords to increase rent PERCENT of the reconstruction value of the dwelling . At DATE levels of rent generally increased . According to the Government , in GPE , where the previous rate was PLN MONEY per square metre , the rent quadrupled , reaching around PLN CARDINAL.CARDINAL per square metre in DATE . According to reports published in the NORP press , in most other towns PERCENT of the reconstruction value of the dwelling corresponded to ORG DATE per square metre . Levels of freely determined contractual rent are still higher : sometimes , especially in large towns , the difference may even reach PERCENT .","At DATE the government started to prepare a bill amending the CARDINAL Act . The bill was submitted to ORG on DATE .","The explanatory memorandum on the bill stated that the aims of the proposed amendments were , among other things , \u201c to specify the rights and obligations of the landlord and the tenant in order to strengthen the protection of the weaker party \u201d ; \u201c to introduce new rules for the protection of tenants against excessive increases in rent and other charges for the use of dwellings \u201d ; and \u201c to reduce the disproportion between the constitutionally guaranteed protection of tenants and the constitutional rights of landlords \u201d .","NORP The government proposed a number of changes to the existing provisions . The most important and controversial provision was the proposed LAW , pursuant to which ( subsection ( CARDINAL ) ) the rent - control scheme , despite the fact that the end of its operation had been set by the legislature at DATE , was to be maintained until DATE in respect of all lease agreements in force before DATE under which the tenants paid controlled rent . That in practice meant all leases originating in administrative decisions regarding privately owned buildings .","The provision was to be applied mostly to all individual landlords , its operation in relation to public - housing entities and housing cooperatives being of minimal effect . The explanatory memorandum stated that the repeal of the rent - control scheme in its entirety \u201c could cause a dramatic increase in rent \u201d after DATE and that the limitation \u201c would allow a smooth transition from the levels of rent at DATE to levels fixed in accordance with general principles \u201d .","The government therefore proposed that controlled rent be frozen at the maximum level of PERCENT of the reconstruction value of the dwelling DATE ; PERCENT up to DATE ; PERCENT up to DATE ; PERCENT up to DATE , and PERCENT up to DATE .","The effects of the proposed rent freeze on the property rights of individual landlords have received considerable media attention and have given rise to heated public debate . The proposal was severely criticised by all organisations of landlords .","Eventually , on DATE , the government submitted to ORG an amendment to their bill . They withdrew their original proposal to freeze levels of rent after DATE . They still maintained the proposal to limit the increase in rent for leases originating in previous administrative decisions .","On DATE a group of deputies from the \u201c PERSON and ORG \u201d ( \u201c Prawo i PERSON \u201d ) ORG submitted a bill proposing amendments to the CARDINAL Act .","The general thrust of the proposed changes , as set out in the relevant explanatory memorandum , was :","\u201c to secure the effective protection of the rights of tenants , as guaranteed by LAW and LAW , by :","( a ) preventing the overuse by landlords of the right to terminate a lease agreement under section CARDINAL(CARDINAL ) of the DATE Act ;","( b ) preventing the dysfunction resulting from non - fulfilment by landlords of the duties incumbent on them in leasing dwellings ( even in cases where the landlords are unknown and the municipality does not manage the property ) . \u201d","Parliament decided to work on both bills simultaneously . The first reading took place on DATE . The second reading , following the report of ORG , ORG and Regional Policy and the adoption of amendments , was on DATE . After the third reading , which took place on DATE , the bills were adopted by the PERSON ( the lower house of the NORP parliament ) and transmitted to the ORG and the President of GPE on DATE .","On DATE the ORG proposed several amendments , the most significant being the amendment to section DATE Act restricting the maximum increase in rent to a level of PERCENT per year in situations where the rent paid exceeded PERCENT of the reconstruction value of the dwelling .","On DATE the PERSON accepted some of the ORG \u2019s amendments , most notably the amendment to section CARDINAL . On DATE the Act of ORG was transmitted for signature by the President of GPE . The President signed it on DATE .","On DATE , following , among other things , press reports stating that the new provision of section CARDINAL of the CARDINAL Act did not exclude the possibility of a CARDINAL - off increase in rent even where the rent was equal to , or PERCENT of the reconstruction value of the dwelling , ORG passed , in an accelerated procedure , another bill amending LAW . The bill was tabled by a group of deputies and contained CARDINAL proposal , namely to add another subsection to section DATE CARDINAL Act ( see paragraph CARDINAL below ) . On DATE the bill was transmitted to , and accepted by , the ORG . The President of GPE signed the Act of ORG on DATE .","The Act of DATE on amendments to the DATE Act on the protection of the rights of tenants , housing resources of municipalities and on amendments to LAW and amendments to certain statutes ( LOC o zmianie ustawy o ochronie praw lokator\u00f3w , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego oraz o zmianie niekt\u00f3rych ustaw ) ( \u201c the DATE Amendment \u201d ) came into force on DATE .","Section CARDINAL(CARDINAL ) of the DATE introduced a new section CARDINAL into LAW . This new provision was drafted with a view to implementing both ORG ruling of DATE and the constitutional principle of the protection of tenants\u2019 rights . It subjects the increase in rent to various restrictions .","Section CARDINAL reads , in its relevant parts :","\u201c ( CARDINAL ) The landlord may increase rent or other charges for the use of the dwelling , giving [ the tenant ] notice of the rent increase , not later than by DATE [ and ] in compliance with the terms for giving notice .","( CARDINAL ) The term for giving notice of an increase in rent or in other charges for the use of the dwelling shall be DATE , unless the parties have stipulated a longer term in their contract ;","...","( CARDINAL ) An increase whereby rent or other charges for the use of the dwelling would exceed PERCENT of the reconstruction value of the dwelling within DATE may take place only in justified cases . At the tenant \u2019s written request , the landlord shall , within DATE , give reasons for the increase and its calculation in writing .","( CARDINAL ) The tenant may , within DATE following the notice of the increase , challenge the increase referred to in subsection ( CARDINAL ) by bringing a court action to have the increase declared unjustified or justified but in a different amount [ ; he or she may also ] refuse to accept the increase , with the effect of the contract being terminated by the end of the term of notice . The burden of proof in respect of the justification of the increase shall rest with the landlord .","...","( CARDINAL ) The provisions of subsections ( CARDINAL ) to ( CARDINAL ) shall not apply to increases","not exceeding PERCENT of the current rent or current charges for the use of the dwelling within DATE ;","...","NORP concerning charges that do not depend on the landlord . \u201d","Pursuant to section CARDINAL(CARDINAL)(a ) of the DATE , section CARDINAL of the CARDINAL Act was reworded in its subsections ( CARDINAL ) and ( CARDINAL ) as follows :","\u201c ( CARDINAL ) Increases in rent or other charges for the use of the dwelling , apart from charges that do not depend on the landlord [ e.g. those for electricity , water , central heating , etc . ] may not be made more often than DATE but , if the level of the annual rent or other charges for the use of the dwelling , apart from charges that do not depend on the landlord , exceeds PERCENT of the reconstruction value of the dwelling , a yearly increase can not be PERCENT of the current rent or current charges for the use of the dwelling [ ; such an increase ] shall be calculated without charges that do not depend on the landlord .","( CARDINAL ) NORP If charges that do not depend on the landlord have been increased , he or she shall give the tenant a written statement listing charges and reasons for their increase . The tenant shall be obliged to pay the increased charges only up to such a level that is necessary for the landlord to cover costs of supply of utilities referred to in section CARDINAL(CARDINAL ) [ e.g. electricity , water , heating ] . \u201d","Section CARDINAL(CARDINAL)(a ) of the CARDINAL DATE Amendment introduced certain changes in respect of the termination of leases by individual landlords . However , the new LAW differs only slightly from the previous provision on termination of leases ( see paragraphs CARDINAL above ) .","Section CARDINAL(CARDINAL ) now reads , in its relevant parts , as follows :","\u201c If a tenant is entitled to use a dwelling for rent , the landlord may give notice only for reasons listed in subsections ( CARDINAL ) to ( CARDINAL ) ... Notice should , on pain of being null and void , be given in writing .","Subsections ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW remain unchanged . Subsection ( CARDINAL ) now reads :","\u201c The landlord of a dwelling for the lease of which the rent is lower than PERCENT of the reconstruction value of the dwelling in DATE may terminate the lease :","( CARDINAL ) with CARDINAL months\u2019 notice if the tenant has not lived in the flat for DATE ;","( CARDINAL ) with DATE notice , expiring at the end of a calendar DATE , in respect of a person who has been entitled to another dwelling in the same or nearby locality and provided that dwelling meets the requirements for substitute accommodation . \u201d","As regards cases where the landlord , his adult descendants or a person in respect of whom he is obliged to pay maintenance intend to dwell in the landlord \u2019s flat ( see also paragraph CARDINAL above ) , the present section CARDINAL ) provides that the notice to quit given to the tenant should , on pain of being invalid , indicate the person who is to dwell in the flat . The terms for giving notice DATE respectively ) remain unchanged .","Under section CARDINAL ) the termination of a lease in respect of a tenant who on the date of giving notice is DATE and who , after the expiry of the applicable three years\u2019 notice , will have no title to another dwelling and will have no persons obliged to maintain him or her will take effect upon his or her death .","The DATE , in its section CARDINAL , introduced a new provision \u2013 section CARDINAL \u2013 setting out a list of the landlord \u2019s duties under the tenancy . In essence , it repeats the provision of section CARDINAL of LAW ( see paragraph CARDINAL above ) .","Section CARDINAL , introduced by the same section CARDINAL of the DATE , lays down the tenant \u2019s duties . Its relevant part reads as follows :","\u201c ( CARDINAL ) The tenant shall be obliged to keep the dwelling in a proper technical , sanitary and hygienic state as prescribed by other separate provisions and to comply with the rules of good conduct in the building . He or she shall also be obliged to take care , and ensure protection against damage or devastation , of parts of the building designed for common use , such as lifts , staircases , corridors , chutes , other [ similar ] LOC and the surroundings of the building . \u201d","Subsection ( CARDINAL ) sets out a detailed list of repairs and works involved in the upkeep of a flat .","The Act of DATE on amendments to the DATE Act on the protection of the rights of tenants , housing resources of municipalities and on amendments to LAW ( \u201c the DATE Amendment \u201d ) came into force on DATE . Its section CARDINAL read :","\u201c In section CARDINAL(CARDINAL ) [ of LAW ] the following subsection ( CARDINAL)(a ) shall be included :","\u2018 The provisions of subsection ( CARDINAL ) shall also apply in the event of an increase in rent or other charges for the use of a dwelling , except for charges that do not depend on the landlord if , after the increase , the level of the DATE rent or other charges for the use of the dwelling , except for the charges that do not depend on the landlord , is to exceed PERCENT of the reconstruction value of the dwelling.\u2019 \u201d","On DATE ORG made an application to the Constitutional Court challenging the constitutionality of the DATE and DATE Amendments ( \u201c the DATE Amendments \u201d ) . The ORG alleged , in particular , that the provisions extending ORG control over increases in rent for dwellings owned by private individuals were incompatible with the constitutional principles of protection of lawfully acquired rights and ORG confidence in the ORG and the law made by it .","In that context , they stressed that the NORP authorities , in breach of their obligation to terminate the operation of the rent - control scheme by DATE that they had taken upon themselves by virtue of CARDINAL successive laws , namely LAW and LAW , had failed to abolish the impugned scheme and had simply replaced it by further restrictions on rent increases .","On DATE the Prosecutor General made an application to the Constitutional Court challenging the constitutionality of DATE . In particular , he contested the provisions restricting increases in rent to PERCENT and submitted , inter alia , that those restrictions constituted an unjustified interference with landlords\u2019 property rights . He further alleged that ORG was in breach of its duty to \u201c legislate decently \u201d ( zasada \u201c przyzwoitej legislacji \u201d ) , especially the duty to formulate legal provisions in a correct and coherent manner .","ORG invited the Speaker of the PERSON , acting on behalf of ORG , ORG and ORG to take part in the proceedings and submit their written observations . The Speaker of the PERSON and ORG fully supported ORG application . The association submitted detailed calculations of levels of rent that would be necessary to cover the maintenance costs of residential buildings . It maintained that in respect of most such buildings there was a \u201c repair shortfall \u201d ( luka remontowa ) amounting to PERCENT of the costs necessary for the reconstruction of the value of dwellings through major repairs and that , in order to secure sufficient means for such purposes , the levels of rent should reach PERCENT of the reconstruction value per year .","ORG considered that the current possibility of increasing rents set at the level of PERCENT of the reconstruction value by PERCENT per year already imposed an excessive burden on tenants . It submitted that the landlords\u2019 association had given exaggerated figures in respect of the costs of necessary repairs . In the context of rent increases , it also stressed that the ORG \u2019s financial assistance to tenants was practically non - existent .","The Constitutional Court heard ORG application on DATE . It repealed section CARDINAL(CARDINAL)(a ) of the DATE in so far as it made any increase in rent PERCENT of the reconstruction value subject to a maximum DATE ceiling of PERCENT of the current rent and section CARDINAL of the CARDINAL DATE Amendment in its entirety .","In its judgment , it made an in - depth analysis of the housing laws as applicable from DATE and their historical and social background . It referred to its previous judgments repealing the successive defective legal provisions and to their implications .","The judgment contains extensive reasoning and a thorough assessment of the various social , political and economic circumstances affecting the current state of the NORP housing legislation . The gist of ORG arguments is summarised in the following paragraphs .","The Constitutional Court first analysed the impugned provisions from the point of view of the principle of the rule of law as laid down in LAW ( see paragraph CARDINAL above ) :","\u201c In the opinion of the [ ORG ] , the introduction of the contested legal provisions clearly violated the principle of proper legislation , which necessarily leads it to declare those provisions incompatible with the principle of the rule of law as expressed in LAW . The amendments , contrary to the intentions of the legislature itself \u2013 as is confirmed by the content of the PERSON \u2019s written observations [ filed in this case ] \u2013 eliminated a market mechanism in a situation where the actual purpose of introducing restrictions on rent increases was to be the protection of tenants , that is to say , persons who in a given case do not accept the proposed increase . There is a distinct inconsistency between the provisions of the amendment in the initial bill and the provisions introduced following the parliamentary debate . In consequence , none of the declared aims of the [ legislation ] has been attained . Rents were not relaxed within rational limits encompassing the requirements of justice and of protection of landlords\u2019 rights and nor were effective and precisely determined procedures introduced to protect the rights of tenants against abuse of [ landlords\u2019 right to ] determine rent freely .","The new version of section PERSON ) has also violated the principle of ... confidence in the ORG and the law made by it . Thus , as already mentioned , there is no doubt whatsoever that until the adoption of the DATE Amendment the legislation of DATE consistently assured society , and especially persons directly interested in the situation of landlords and tenants , that rents that were controlled and at the same time limited to the level of PERCENT of the reconstruction value of the dwelling exclusively in respect of a certain category of LOC would apply for the transitional period , that is , up to DATE . This period ... was [ set ] to make it possible for the government and the legislature to develop a new , comprehensive and multi - faceted system governing the relations between landlords and tenants , fully taking into consideration the justified interests of the parties and also realistically allowing those same parties to prepare themselves for surviving the most difficult period and to accept fully the new state of affairs , so that mutual relations between the parties to a lease ( or an analogous relationship ) could be shaped in a rational manner and above all with due consideration for the concrete conditions determining rent . The date of DATE as the deadline for the transition period was also confirmed in LAW , which further strengthened the conviction that after that date the mechanism for determining rent would be compatible with the principle of freedom of contract .","This societal conviction was further supported by the unambiguous case - law of ORG , which on many occasions underlined the transitional character of the rent - control scheme . It thus follows that in DATE the unambiguous \u2018 rules of the game\u2019 were established , whose period of validity was clearly indicated by LAW ( section CARDINAL(CARDINAL ) ) and then in some sense confirmed by section CARDINAL(CARDINAL ) of the CARDINAL Act . ...","In its case - law ORG has frequently expressed the opinion that the legislature must not fail to meet deadlines for those \u2018 rules of the game\u2019 that it set itself . This opinion was expressed , inter alia , in ... the reasoning of [ its judgment of CARDINAL DATE ] . In its judgment ... , ORG expressed the opinion that setting aside the principle of controlled rent for a DATE transitional period would be acceptable only under exceptional circumstances , for otherwise there would be a violation of the principle of legal certainty expressed in LAW .","These considerations lead to the conclusion that the adoption of the contested Act and its publication on DATE , with its entry into force on DATE , violated the \u2018 rules of the game\u2019 which were laid down in the previous legislation and which were subject to an unambiguous time - limit[. This happened in a situation where ] there were no exceptional circumstances or events that could justify or explain the extension of [ those rules ] for a longer period .","The breaking of what amounted to a promise laid down in a statute must be regarded as a particular kind of irresponsibility on the part of the public authorities , and hence an exceptionally jarring violation of the principle of confidence in the ORG and the law made by it , a principle constituting one of the foundations of the rule of law . \u201d","ORG next referred to the principle of the protection of property and the principle of proportionality :","\u201c LAW and CARDINAL of the LAW guarantees the protection of ownership and other property rights on an equal basis for all . Among these \u2018 other property rights\u2019 are the right to lease residential LOC and other rights relating to LOC serving to satisfy housing needs . Each of these rights , whether accruing to landlords or to tenants , enjoys constitutional protection , but in different ways . As a rule these rights collide but , as has been pointed out [ in one of ORG previous judgments ] , it would be a simplification to treat this conflict in linear terms , and to presume that providing a certain degree of protection to CARDINAL of these rights must necessarily result in a weakening of the degree of protection afforded to the other .","Section CARDINAL(CARDINAL ) and ( CARDINAL ) and section PERSON ) ... were based on the unjustified conviction that relations between landlords and tenants always have an antagonistic nature , which inevitably leads to the \u2018 CARDINAL - sum game\u2019 . In reality , however , this does not have to be the case ; on the contrary , properly determined relations between the parties to a lease agreement are of service both to landlords and tenants , provided that neither of the parties abuses its rights , since everyone is obliged to respect the freedoms and rights of others ( LAW ) .","ORG is fully aware of how difficult it is to balance the legitimate interests of both landlords and tenants and to create the best possible ways of organising their relations . This is particularly true in the NORP situation , in which the rights of landlords were not respected for a long time and housing matters were subject to ORG management for entire decades[. This ] , combined with other systemic and economic factors , resulted in a degradation of housing supply unheard of in the countries of western LOC , and the consequences of which affected and still affect not only landlords but , ultimately , also tenants . Stepping back from this abyss will be difficult and will take DATE , and the effective change of the present state of affairs will probably not be possible without committing public funds adapted to concrete situations ( see the ORG judgment [ of CARDINAL DATE ] ) .","It is therefore the legislature \u2019s duty to strive to form a harmonious legal situation for landlords and tenants , so that their relations can be seen as desirably complementary rather than characterised by inevitable antagonism . Charges for the use of the LOC , including rent , are a special element of those relations . They should ensure that the landlord not only covers the costs of building maintenance and repair , but also obtains a return on invested capital ( amortisation ) and a decent profit because no legal provisions may extinguish one of the basic components of the right to property , namely the right to derive profit from property ... This was possible , as found by ORG [ in its earlier judgment ] , in the transitional period , during which it was considered reasonable to restrict profit [ by fixing ] such levels of rent as only covered the costs of maintenance and upkeep . Now complete regulations , fully and precisely determining the elements of rent , are required . LAW specified what are to be regarded as charges that do not depend on the landlord ... but it did not indicate ... the elements of rent as such . As a result , judicial control of reasons for rent increases is to a large extent illusory . ...","At the same time , ORG considers it necessary to take into account the legitimate interests of tenants , and to establish effective mechanisms to protect them against abuse of their rights by landlords . It is also necessary to develop a set of instruments that would make it possible to support tenants finding themselves in difficult financial and living circumstances . This must not be done , as has been the case hitherto , mainly at the cost of landlords , but mostly through the deployment of special public resources . Thus , the duties inherent in social solidarity and the duty to help the underprivileged are incumbent on society as a whole . ...","Over DATE or so , attempts have been made in GPE to protect the legal interests of ... tenants through the statutory determination of percentage rent increase indicators , or of rent ceilings , or through the introduction of certain stronger control measures after a certain limit was exceeded , but in fact this has always been done in isolation from the concrete circumstances of given landlords and given tenants . An exception in this respect is the duty to determine officially the so - called \u2018 conversion ORG , which of course adjusts the calculation of rent , but only locally , and , furthermore , is highly formalised and mechanical in nature .","The end of the transitional period for controlled rents must mean a real break with the statutory automatism in respect of setting levels of rent , determining the rent ceilings or imposing restrictions on rent increases . One should expect the establishment of a system providing flexible solutions , adapted to the requirements of a modern housing market , which \u2013 stressing the parties\u2019 freedom to determine rent levels \u2013 would also ensure effective control in order to prevent arbitrariness and abuse of that freedom .","The contested provisions allow the parties ... a very small margin of freedom , which does not take into consideration concrete circumstances , such as the technical condition of the LOC and the building , the personal and financial situation of the tenants or local factors . The legislature believes that the elimination of irregularities in increasing rent , apart from rent being subject to an arithmetical ceiling , will be effected through a special procedure for judicial control laid down in section QUANTITY combined with the mechanism restricting rent increases as laid down in section CARDINAL of the CARDINAL Act , in particular section CARDINAL(CARDINAL ) and ( CARDINAL)(a ) .","The legislature , declaring that controlled rents would be abolished in the future , never promised that from DATE the levels of rent determined by the parties would not be controlled at all . However , judicial control to this end would be effective if the law clearly determined elements of rent and formulated precise criteria for its evaluation . But this did not happen . LAW does not indicate at all how rent should be determined ( because rent increases as such are a different matter ) , even in such a fragmentary way as section DATE CARDINAL Act did . It thereby deprived a court assessing an increase in rent of the possibility of objective verification , on the basis of concretely enumerated elements of rent and clear criteria for their evaluation , whether or not the increase was justified ( section CARDINALa(CARDINAL ) of the CARDINAL Act ) , and hence created a risk of divergence between judicial decisions . It should also be noted that in certain situations the limiting mechanism introduced by section CARDINAL(CARDINAL ) and ( CARDINAL)(a ) either excludes judicial control of rent altogether , or makes it completely illusory ...","In consequence , ... both the contested amendments amounted to a breach of the principle of proportionality expressed in LAW , [ notably ] through defective formulation of the rules determining [ rent ] , which do not give adequate protection either to landlords or to the rights of tenants . \u201d","In the context of the principle of proportionality ORG also referred to this ORG \u2019s Chamber judgment in the following terms :","\u201c ORG paid particular attention to ORG Rights\u2019 judgment of DATE in the case of ORG v. GPE . ...","Given the date of this judgment , [ considerations ] of ORG were already based on the legal situation obtaining on DATE . Hence they encompassed both DATE Amendments to LAW and the Prosecutor General \u2019s application . In ORG view , the opinion expressed by ORG provides additional arguments in favour of finding that these amendments , in their parts contested in the application , violate the principle of maintaining confidence in the ORG and in the law made by it as laid down in LAW and undermine in an inadmissible manner the standards of property protection common to the member ORG . \u201d","It then went on to analyse the general situation :","\u201c ORG still holds the view ( expressed in its judgment of CARDINAL January CARDINAL ... ) that","\u2018 it is in conformity with the contemporary perception of a \u201c social ORG \u201d to demand some sacrifice from all members of society for the benefit of those who can not provide subsistence for themselves and their families ... In the circumstances obtaining in GPE , under LAW [ of LAW ] , it may be justified to maintain the provisions limiting landlords\u2019 property rights and , more particularly , excluding unrestricted freedom in fixing rates of rent and other charges collected from tenants.\u2019","The latter remark was particularly significant for the assessment of legislation during the transition period , but it can not be seen as having fully lost its relevance with the end of that period .","...","Thus , GPE which , like GPE , are undergoing radical systemic and economic transformation must create legislative tools that make it possible for them to overcome the consequences of historical events ( arbitrary and peremptory interference with private property by the ORG ) and to ensure the transition to conditions appropriate for democratic , liberal GPE governed by the rule of law . This is a very difficult task , especially given the absence of well - tried models of proceeding in such cases . The scale of the phenomenon far surpasses the post - war experience of western NORP States . Changes in this area are being introduced by trial and error ; they are slow and not effective enough \u2013 as has been pointed out by ORG in the judgments cited above .","It is therefore not possible , in respect of the rights of landlords , who were formerly deprived of the possibility of fully enjoying their property , simply to give this possibility back to them in the form of unrestricted market - related rent . Such a measure , in a situation where private houses , previously taken in connection with the so - called \u2018 public management of housing ORG , have depreciated and require very major investments in repairs and high running maintenance costs , would mean imposing on tenants an excessive burden undermining their existence . ...","It must be kept in mind that the fact that landlords\u2019 rights were infringed over DATE did not result from any acts by tenants , but was first and foremost caused by defective legislation . Removing , after DATE of neglect , all those harmful consequences may not therefore be done at the expense of tenants , and certainly not at their expense alone , but must above all stimulate the public authorities themselves to take appropriate action . \u201d","In its final considerations ORG stressed that , given that its judgment was inherently limited by the scope of ORG application , it could not resolve comprehensively and definitely the fundamental systemic issues arising from the operation of the rent - control scheme . In particular , it could not address the mechanism for balancing the interests of landlords and tenants , a mechanism which was still missing in the existing legal system .","Having regard to the fact that sections CARDINAL and DATE CARDINAL Act ( in so far as they were still in force following the repeal ) did not provide for any satisfactory and consistent mechanism and no appropriate legislative initiative to that effect had been envisaged , ORG decided to prepare recommendations ( sygnalizacja ) for ORG , whose object would be to formulate clear demands to create a mechanism making it possible to formulate precise criteria for judicial control of rent and related charges .","On DATE the ORG gave a decision ( postanowienie ) setting out the recommendations for ORG ( \u201c the DATE Recommendations \u201d ) referred to in the judgment of DATE . In its relevant parts , the decision reads as follows :","\u201c CARDINAL . Starting - point","... Under the present legislation , as amended by ORG judgment [ of DATE ] , landlords may increase rents or other charges for the use of the dwelling not more often than DATE but an increase in rent or other charges , apart from those which do not depend on a landlord , whereby rent would exceed PERCENT of the reconstruction value of the dwelling within DATE may take place only in justified cases . ... [ T]he tenant may challenge the increase by bringing a court action to have the increase declared unjustified , or justified but in a different amount , or may refuse to accept the increase with the effect that the contract is terminated at the end of the term of notice .","However , judicial control of increases in rent and the procedure for such increases do not apply if an increase does not exceed PERCENT of the current rent or current charges .","Lack of statutory criteria for judicial control","[ LAW ] does not indicate , and this is its fundamental shortcoming , the criteria on the basis of which the courts are to control increases in rent or other charges for the use of the dwelling . This situation is detrimental to both landlords and tenants . Accordingly , judicial control , lacking statutory criteria , certainly becomes very difficult and unforeseeable , if not illusory . This may lead to quite arbitrary decisions . It is likely that in this legal situation the courts would be forced to create an ad hoc set of criteria for the future assessment [ of increases ] rather than to review legal grounds for increases . It should be stressed that removing from the judicial control increases in rent and charges that do not exceed PERCENT will , in many instances , deprive tenants of the necessary protection and will , within DATE , lead to rents being hauled up to an objectively unjustified level .","The above considerations lead to the conclusion that the statutory system of fixing the maximum ceiling of rents and other charges and of controlling increases determined algorithmically , which was justified in the transitional period ... , can neither satisfactorily serve the interests of landlords nor protect the justified interests of tenants . It is therefore necessary to regulate in a complex manner those matters , maintaining at the same time flexible solutions . ....","Factors influencing the level of so - called \u2018 basic rent\u2019 [ czynsz pocz\u0105tkowy ]","The question of determining rents and charges for the use of the dwelling can not be seen only from the perspective of the criteria and rules for their increase . First of all , it is necessary to set a statutory starting - point \u2013 in other words , elements of rent that would adequately take into account the rights of landlords .","At the same time , not losing sight of the necessarily complementary relationship between a landlord and a tenant , one should have regard to the fact that the essential duty of the tenant is to pay an economically justified level of rent , i.e. not too high but related to the justified economic interest of the landlord .","The point of departure for determining such ... rent should be an indication that its elements can not be [ fixed without relation to ] running repairs and maintenance , an adequately determined depreciation and a decent profit . ...","The need to include the costs of repairs and maintenance does not require any further explanation \u2013 it is obvious . Likewise , a decent profit derived from the exercise of the right of property is an indispensable element of the genuine protection of property rights . Without profit , there are no investments or even modernisation works , which are dictated by technological progress and which are also beneficial for the interests of tenants . The future detailed legal solutions should , however , pay due regard to the fact that the aims pursued by the public authorities ( ORG , other ORG authorities and municipalities ) are different from those pursued by private individuals and bodies ( such as housing cooperatives ) and that the expectations of [ those CARDINAL groups ] in respect of a decent rent should be established at different levels . ...","It is also necessary to include among the elements of rent a return on landlords\u2019 investments in the construction or modernisation of the building in due time , it being understood as a basis for an adequately established depreciation level . ...","DATE Additional instruments for monitoring the level of rent","An auxiliary instrument , enabling the courts to assess thoroughly the basis of the determination of , and increase in , rent could entail , among other things , the setting up by the authorities , in the process of a true social dialogue with organisations of landlords and tenants , a system for monitoring the levels of rent in all municipalities which would , for example , disseminate information on the average level of rent in a given region . Such systems are known in some NORP countries as a \u2018 rent GPE . ...","Housing benefits","The justified \u2018 basic rent\u2019 , determined in the manner indicated above in respect of each residential building , might often be incompatible with the tenants\u2019 financial situation . ... In such cases the poorer tenants should be included in a system of individual benefits , justified by their [ individual ] circumstances , from the public funds , which would genuinely help them to fulfil their duty to pay rent regularly up to a certain determined amount .","...","Instruments for the necessary support of landlords","In certain situations ( especially in respect of buildings regarded as part of the national heritage ) it may happen that [ even ] properly determined rent will still not be sufficient to cover all the costs required for the necessary expenses involved in normal maintenance , in particular the necessary repairs or modernisation . In such precisely determined cases the system of public finances should provide for forms of individual support for landlords obliged to cover the extra costs involved in the maintenance of the buildings . Such support may take various forms , from housing subsidies , through loans on preferential terms for specific investments and , finally , to tax exemptions . ...","...","Inconsistent regulation of the rights and obligations of parties to a lease agreement","ORG considers it necessary to point to inconsistencies , as regards the setting out of a catalogue of GPE and tenants\u2019 duties , between the new sections CARDINAL to CARDINAL of the DATE Act and the provisions concerning the lease of a dwelling contained in ... LAW . It is against the rules of proper legislation to include the provisions governing the lease of dwellings not in LAW , which contains a full set of regulations on lease relations , but in a law whose object is to protect tenants generally , not to regulate the lease relationship .","[ Final remarks ]","ORG present recommendations are concerned with shortcomings and lacunas to which it has pointed in DATE either in its judgments or documents providing information about its activities . ... Removing them in the near future is necessary also in view of the principle of the social market economy , which has particular importance in the present context . Now it is no longer possible to regulate these matters in a fragmentary or provisional manner . It should once more be stressed that they should be resolved through comprehensive solutions pursuing clearly defined aims which are compatible with the LAW . \u201d","On DATE the ORG made an application to ORG for certain provisions of the DATE Act to be declared unconstitutional . He asked , inter alia , that section CARDINALa ( CARDINAL ) of the DATE LAW as amended in DATE ) be found to be incompatible with Article QUANTITY ( principle of the protection of property rights ) read in conjunction with LAW ( principle of proportionality ) and LAW ( principle of protection of consumers against dishonest market practices ) . He further asked that section CARDINAL(CARDINAL ) of the DATE Act be found to be incompatible with LAW ( principle of the rule of law ) .","The ORG first referred to ORG judgment of DATE , stating that this judgment left no doubt whatsoever that the legislature \u2019s essential duty was to set up a legal mechanism balancing the constitutionally protected rights of landlords and tenants . Indeed , the attempts that had hitherto been made had proved to be unsuccessful mostly because of the authorities\u2019 choice to give priority to current political interests rather than to the law , as demonstrated by many earlier judgments of ORG .","As to the contested provisions of section CARDINAL , the ORG stressed first their internal inconsistency , submitting that , on the CARDINAL hand , subsections ( CARDINAL ) and ( CARDINAL ) made increases in rent PERCENT of the reconstruction value per year subject to \u201c judicial control \u201d and required them to be \u201c justified \u201d but that , on the other hand , the latter subsection read a contrario meant that any other increases did not need to be justified . He further referred to ORG recommendations , pointing out that there were no statutory criteria for what was to be considered a \u201c justified increase \u201d . In fact , he maintained , from the point of view of the landlord every rent increase was justified as it either increased his profit or reduced the losses involved in proper maintenance , while from the point of view of the tenant every such raise was \u201c unjustified \u201d as it involved greater expense on his part .","As regards section CARDINAL(CARDINAL ) , the ORG submitted that it was unclear and incompatible with the principle of proper legislation ensuing from the rule of law in that , for instance , it did not specify when the DATE period \u2013 relevant for determining the point from which a given increase in rent had applied DATE was to start . In the ORG \u2019s view , this lack of clarity could not be removed simply by interpretation of that provision and created a possible source of conflicts between landlords and tenants .","On DATE of the adoption of the ORG \u2019s judgment , the application was pending before ORG . The case was listed for a hearing on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60761","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2002,"docname":"CASE OF MERICO v. ITALY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant is the owner of an apartment in GPE , which he had let to GPE","In a registered letter of CARDINAL DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .","In a writ served on the tenant on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before ORG .","By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .","On DATE , the applicant served notice on the tenant requiring her to vacate the premises . On an unidentified date , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .","On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his mother .","DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .","On DATE , the applicant repossessed the apartment .","The relevant domestic law is described in the ORG \u2019s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110313","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2012,"docname":"MICHAJLOV v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in Krems . He is represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) are represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG ( PERSON ) convicted the applicant of various offences under LAW and sentenced him to DATE imprisonment . It found him guilty of having commissioned various persons DATE to import cocaine to GPE and to have sold QUANTITY of cocaine to various individuals in GPE . In fixing the sentence , the court had regard to the fact that the applicant had CARDINAL previous convictions CARDINAL of which also concerned offences under LAW . It also revoked the suspension of a term of CARDINAL months\u2019 imprisonment resulting from a previous conviction . The applicant \u2019s imprisonment was due to be terminated on DATE .","The applicant was detained at FAC when he was diagnosed with multiple sclerosis in DATE . Subsequently , he was regularly taken to the public hospital in GPE , which has an out - patient department specialised in the treatment of multiple sclerosis . Examinations took place on DATE , DATE and DATE and on DATE .","By decision of DATE ORG , noting that the applicant required more intensive medical treatment and care , ordered his transfer to FAC for the further execution of his sentence , as that prison centre was equipped with a hospital of its own . However , ORG refused the applicant \u2019s request for a suspension of the execution of his sentence pursuant to section CARDINAL \u00a7 CARDINAL taken together with section CARDINAL \u00a7 CARDINAL of LAW ( Strafvollzugsgesetz ) .","ORG ( Oberlandesgericht ) dismissed the applicant \u2019s appeal on DATE . It noted on the basis of a medical expert opinion that the applicant , suffering from multiple sclerosis , was unfit for detention . However , he was to be considered dangerous within the meaning of section QUANTITY of LAW . He had been convicted CARDINAL times . His last conviction for importing and selling QUANTITY of cocaine concerned a particularly serious crime . Although the applicant \u2019s mobility was reduced by his illness , he could use his contacts within the criminal scene to commit or instigate further crimes .","On DATE the applicant was transferred to PERSON prison . From that date he was detained in the hospital of PERSON prison . The Government submitted a statement of the head doctor of the PERSON prison : The hospital has its own medical and nursing staff . Doctors carry out daily visits and medical and nursing assistance is available TIME per day . All sanitary facilities in the prison hospital are suitable for persons with disabilities . The preparation of food takes special needs into account .","Until DATE the applicant was placed in room no . CARDINAL of the prison hospital , which is equipped with sanitary facilities ( shower and toilet ) suitable for persons with disabilities . Subsequently , he was placed in CARDINAL other rooms of the prison hospital , namely room no . CARDINAL until CARDINAL May DATE and room no . CARDINAL until his release . While staying in these rooms the applicant could use the hospital \u2019s common shower room with the assistance of prison staff .","The applicant continued to receive treatment at the multiple sclerosis department at the GPE P\u00f6lten public hospital . An examination scheduled for DATE was refused by the applicant . Further examinations took place on CARDINAL May and DATE and on DATE and DATE . The applicant \u2019s therapy was fixed and continuously adapted by the specialists of the multiple sclerosis department and was carried out at the prison hospital . Moreover , the applicant was treated by the prison hospital \u2019s pain specialist several times .","In addition to medication , the applicant received physiotherapy from DATE . This was available in the prison hospital . A first set of CARDINAL therapy units was prescribed . The applicant underwent CARDINAL units DATE but renounced to make use of the remaining units . Subsequently , physiotherapy was resumed and the applicant received TIME therapy units DATE .","On DATE the applicant , represented by counsel , requested anew that the execution of his sentence be suspended due to his illness pursuant to section CARDINAL \u00a7 CARDINAL taken together with section CARDINAL \u00a7 CARDINAL of LAW and that he be released .","He joined an opinion by an expert on neurology and psychiatry , Dr. ORG According to the expert \u2019s opinion dated DATE the applicant was unfit for detention . Since he had been diagnosed with multiple sclerosis in DATE his state of health had deteriorated considerably . In particular , the mobility of his arms and hands was restricted and he could no longer perform simple gestures necessary for everyday life , such as handling cutlery for instance . His general mobility on the ORG scale was CARDINAL ( CARDINAL being full mobility , CARDINAL meaning dependency on a wheel - chair ) . He received medication , however this was not sufficient as according to medical opinion a multidisciplinary approach , encompassing neurology , physiotherapy and psychology , was necessary for treating multiple sclerosis . The support by close relatives was also crucial .","As to the question whether there was still a danger that he would commit further offences , the applicant submitted that all his energy was devoted to combating his illness . Should the court have doubts in respect of his dangerousness , he requested that the opinion of an expert be taken .","On DATE ORG dismissed the applicant \u2019s request . It noted that according to the prison administration , the applicant \u2019s conduct was good . According to the prison doctor , the applicant \u2019s condition was stable for the time being but could deteriorate at any time . Referring to the expert opinion , the court acknowledged that the applicant was unfit for detention due to his illness . However , he was to be considered particularly dangerous . In that respect , the court referred to the decision by ORG DATE , which had found that even if his mobility was reduced there was a danger that the applicant might use his contacts to organise further drug trafficking . Therefore the conditions for suspending the execution of his prison term as laid down in section CARDINAL \u00a7 CARDINAL taken in conjunction with section CARDINAL \u00a7 CARDINAL of LAW were not met .","The applicant appealed , claiming in particular that his illness had weakened him substantially and all remaining energy was required to cope with the illness . Consequently , it could no longer be assumed that he would commit further offences . In that connection he complained that ORG had assumed that his dangerousness persisted without having taken a further expert opinion .","By decision of CARDINAL DATE ORG dismissed the applicant \u2019s appeal . It noted that the applicant suffered from multiple sclerosis and was unfit for detention . However , it confirmed ORG view regarding the applicant \u2019s dangerousness . It observed that he had been convicted CARDINAL times . The prison term he was serving related to the trafficking of a substantial amount of drugs , namely QUANTITY of cocaine which he had imported though third persons and sold in GPE . Pursuant to section QUANTITY of LAW , the sentence had to be executed even where the detainee was unfit for detention if he presented a danger to the security of others having regard to the nature of his offences or the motive for which they were committed or in view of his prior conduct . The court referred to the applicant \u2019s recidivism and the large amount of drugs which he had sold , and found that his dangerousness was not offset by the effects of his illness .","In sum , ORG found that despite the fact that the applicant was unfit for detention , his substitute confinement ( Ersatzhaft ) DATE if need be in a public hospital \u2013 was required for the protection of others .","By application of DATE the applicant again requested that the execution of his sentence be suspended pursuant to section CARDINAL \u00a7 CARDINAL taken together with section CARDINAL \u00a7 CARDINAL of LAW and that he be released .","He submitted a private expert opinion by Dr. PERSON , a neurologist , psychiatrist and physiotherapist . The opinion , dated DATE , stated that the danger that the applicant would commit further offences had considerably decreased . While his prior convictions indicated a certain risk , all other relevant factors rather allowed a positive prognosis . His severe and progressive illness required all his energy and had led to a profound change . Moreover , the applicant \u2019s age , his reduced mobility , the need of constant medical treatment and his dependency on help from others made it unlikely that he would commit further offences .","ORG appointed a psychiatric expert Dr. PERSON In his opinion , dated DATE , Dr. PERSON noted that the applicant was detained in the prison hospital and that according to the prison doctor his state of health had deteriorated over DATE . By now he was able to walk only with great difficulty . The expert confirmed that the applicant was unfit for detention due to his illness . Regarding his dangerousness , the expert found that the applicant still made an astonishingly energetic impression . Although his progressive illness and his age could be considered as a factor reducing the probability of a relapse into crime , his personality did not necessarily indicate that he would refrain from committing further offences . In sum , the remaining danger had to be compensated by stabilising factors such as assistance by a probation officer ( ORG ) .","On DATE ORG ordered the applicant \u2019s release . It noted that the applicant was detained in the prison hospital . The hospital \u2019s head doctor had submitted comments in favour of release . Furthermore , expert Dr. PERSON had found that the applicant \u2019s inclination to commit further offences had decreased but not totally disappeared and had recommended that a probation officer be appointed in case of release .","Referring to its previous decision , ORG noted that the applicant suffered from multiple sclerosis and was unfit for detention . While that decision had refused the applicant \u2019s release on account of his dangerousness , the applicant \u2019s good conduct in the meantime and Dr. B. \u2019s expert opinion led to the conclusion that the applicant \u2019s dangerousness had decreased . On the condition that he would reside with his mother and be assisted by a probation officer it could be assumed that he would not commit further offences . The execution of his sentence was therefore suspended pursuant to section CARDINAL \u00a7 CARDINAL of LAW .","In order to allow for the necessary preparations , the court ordered that the applicant be released on DATE .","NORP The applicant was released on DATE .","Section CARDINAL \u00a7 CARDINAL of the DATE LAW provides that the execution of a prison term is to be suspended if the convict is unfit for detention due to invalidity or a physical or mental illness . Pursuant to section QUANTITY of the said LAW a convict who is unfit for detention may nevertheless be deprived of his liberty if he presents a danger to the security of the ORG or to the security of third persons , having regard to the nature or the motive of the offence committed by him , or in view of his prior conduct . If need be , confinement is to be carried out at a public hospital .","Pursuant to section CARDINAL \u00a7 CARDINAL the execution of a sentence has to be suspended if a prisoner becomes unfit for detention while serving his prison term . The conditions set out in section CARDINAL apply ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57556","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1984,"docname":"CASE OF PIERSACK v. BELGIUM (ARTICLE 50)","importance":2,"conclusion":"Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"","text":["ORG The present case was referred to the ORG by ORG ( \" the Commission \" ) on DATE . The case originated in an application ( no . CARDINAL\/CARDINAL ) against GPE lodged with ORG on DATE by a NORP national , Mr. PERSON .","ORG By judgment of CARDINAL DATE , ORG held that there had been a violation of LAW ( article DATE ) of the LAW , in that the impartiality of the \" tribunal \" which , on DATE , had determined the \" merits \" ( in the NORP text : \" bien - fond\u00e9 \" ) of a \" criminal charge \" against Mr. PERSON - namely , ORG - \" was capable of appearing open to doubt \" ( Series A no . CARDINAL , paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) .","The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL to CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .","At the hearing of CARDINAL DATE , Mr. PERSON \u2019s lawyer had stated that his client was seeking under LAW ) his immediate release , in accordance with \" arrangements to be discussed \" , and also financial compensation to be used to meet the fees of his lawyers before ORG ( CARDINAL BF ) and in GPE ( CARDINAL BF ) , subject to deduction of certain amounts paid by ORG by way of legal aid ( CARDINAL FF ) .","Counsel for the Government had replied that , were the ORG to find a violation , publication of the judgment would itself constitute adequate just satisfaction .","In its judgment of DATE , the ORG reserved the question and invited the ORG to submit , within DATE , its written observations and , in particular , to notify ORG of any friendly settlement at which the ORG and the applicant might have arrived ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , ibid . , p. CARDINAL ) .","ORG After an extension of the above - mentioned time - limit by the President of the ORG , and in accordance with his Orders and directions , the PERSON received :","- on DATE , from the Secretary to ORG , brief observations by its ORG and copies of the correspondence it had exchanged with the ORG and the applicant DATE ;","- on DATE and DATE , from the Agent of the Government , certain supplementary remarks ;","- on DATE , CARDINAL letters from Mr. PERSON \u2019s lawyer .","These documents revealed that no friendly settlement had been arrived at .","ORG Acting on the President \u2019s instructions , the PERSON wrote to the Agent of the Government on DATE . The letter , which made reference to the wording of and the case - law on LAW ) , enquired - \" without prejudice to the decision which the ORG might take on the point in question \" - whether the NORP authorities considered that NORP law provided \" any means whereby full reparation can be made for the consequences of the breach found ... by the judgment of DATE \" .","In his reply dated DATE and received at the registry on DATE , the Agent indicated that DATE previously the NORP Minister of ORG had requested the procureur g\u00e9n\u00e9ral ( ORG prosecutor ) attached to ORG to challenge before the latter Court the judgment of DATE whereby ORG had sentenced the applicant to DATE hard labour for murder ( see paragraph QUANTITY above ) . The Minister had taken this step pursuant to LAW , which provides as follows :","\" Where , on production of formal instructions which he has received from the Minister of ORG , the procureur g\u00e9n\u00e9ral attached to ORG impugns , before the ORG hearing appeals on points of law in criminal cases involving serious , lesser and petty offences ( en mati\u00e8re criminelle , correctionnelle et de police ) , judicial acts or judgments as being contrary to the law , such acts or judgments may be annulled . ... \"","ORG The subsequent developments in the case appear from letters which the PERSON received from ORG on DATE , DATE and DATE and DATE .","( a ) The procureur g\u00e9n\u00e9ral referred the matter to ORG on DATE . In his submissions , he urged that ORG had \" to recognise that ORG judgment had the force of res judicata \" and \" consequently to conclude that ... the procedural acts before the [ ORG and the latter \u2019s judgment \" had violated LAW ( article DATE ) of the LAW and \" were therefore contrary to the law , within the meaning of LAW \" . He also expressed the view that the fact that Mr. PERSON \u2019s appeal on points of law against the judgment in question had been dismissed on DATE ( Series A no . CARDINAL , p. CARDINAL , \u00a7 CARDINAL ) did not prevent ORG from applying Article CARDINAL , notably because at the relevant time it had been unaware of \" CARDINAL facts \" on which \" ORG had based ... its decision \" : \" firstly , Mr. PERSON , the President of ORG , had until DATE been the head of the section in the GPE public prosecutor \u2019s department that was responsible for GPE \u2019s prosecution \" ; \" secondly , in that capacity , [ he ] had in fact played a certain part in the proceedings \" ( ibid . , pp . CARDINAL , \u00a7 CARDINAL ) .","On DATE , ORG , adopting these submissions , annulled the procedural acts subsequent to the committal for trial before ORG ( DATE ; ibid . , p. CARDINAL , \u00a7 CARDINAL ) and the judgment of CARDINAL DATE to the extent that it had convicted the applicant of , and sentenced him for , the manslaughter ( meurtre sans pr\u00e9m\u00e9ditation ) of CARDINAL PERSON ( ibid . , pp . CARDINAL - CARDINAL , \u00a7 \u00a7 CARDINAL and CARDINAL ) ; with these limitations , the case was referred back to ORG .","( b ) On DATE and DATE , Mr. PERSON instituted , before the President of ORG , sitting as judge hearing urgent applications ( si\u00e9geant en r\u00e9f\u00e9r\u00e9 ) , proceedings against ORG , the procureur g\u00e9n\u00e9ral attached to ORG , the procureur du PERSON ( public prosecutor ) attached to ORG and the Governor of PERSON . He claimed that he had been \" arbitrarily detained since DATE \" ; accordingly , he requested the President to \" order [ his ] immediate release \" and to direct ORG to pay to him MONEY \" per day since CARDINAL DATE , by way of damages for unlawful imprisonment \" .","The President of ORG held on DATE that he had no jurisdiction in the matter , since \" the defendants ha[d ] not committed any manifest illegality ( voie de fait ) \" : he found that following the judgment of CARDINAL DATE the plaintiff had re - acquired \" the status of a detainee on remand \" ; the legal basis for that detention lay in the judgment of DATE by the chambre des mises en accusation ( ORG ) ( see Series A no . CARDINAL , p. CARDINAL , \u00a7 CARDINAL ) , which judgment had not been annulled by ORG .","( c ) ORG , by CARDINAL votes to CARDINAL , convicted Mr. PERSON on DATE and sentenced him to CARDINAL years\u2019 hard labour , a sentence identical to that which had been imposed on DATE .","The applicant did not appeal on points of law against this judgment since he considered that \" this time \" he had received a \" fair trial \" .","ORG On DATE , DATE , DATE and DATE , the applicant , the ORG \u2019s ORG and the Government lodged with the registry , in accordance with the Orders and directions of the President of the ORG , further observations on the application of LAW ) in the present case in the light of the events described above .","On DATE , the Registrar also received from the Secretary to the Commission the reply to a request for information which the Registrar had made on DATE on the instructions of the ORG .","ORG After consulting , through the PERSON , the Agent of the Government and ORG , the ORG decided on DATE that there was no call to hold hearings .","ORG Mr. PERSON and Mr. PERSON , substitute judges , replaced Mr. PERSON and Mr. PERSON , who were prevented from taking further part in the consideration of the case ( Rules CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83390","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2007,"docname":"CASE OF POPOVIC v. SERBIA","importance":4,"conclusion":"Violation of Art. 6-1","judges":"","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant brought a civil action in ORG against a certain GPE , seeking repayment of a loan .","Having heard the applicant in person at a hearing on DATE , on DATE the court gave a judgment accepting the applicant 's claim . On DATE the ORG quashed that judgment for factual shortcomings and remitted the case . In its decision , ORG instructed the first - instance court to hear and confront the parties , as well as to hear the other witnesses proposed by the applicant with a view to establishing , inter alia , whether the loan had been made to GPE or to his father , whether a part of it had in the meantime been repaid and whether the claim was time - barred .","In the resumed proceedings , the court held a hearing on DATE , which the applicant did not attend although duly summoned . On that occasion , his lawyer informed the court that the applicant was in poor health and needed surgery . Therefore , the applicant would not be able to attend court hearings , but maintained all his claims , as previously stated in his oral and written submissions to the court .","On DATE the applicant submitted a medical certificate , stating that he suffered from paranoid psychosis with signs of hypochondria , and that he was unable to attend court hearings .","The court appears to have held further hearings on DATE and DATE , both attended by the applicant 's lawyer . It also obtained an expert opinion on DATE .","The court subsequently ordered the applicant 's lawyer to inform it of the exact date and place where the applicant would be medically treated . It further contacted the medical institution which had issued the certificate of DATE , requesting its opinion on whether the applicant 's health allowed him to be a party to the proceedings . It would appear that none of the court orders has ever been complied with .","At the hearing held on DATE the applicant 's lawyer specified the claim , whereas the respondent submitted that , if the applicant was ill , the court could not continue the proceedings .","NORP The proceedings are still pending before the first - instance court .","The relevant provisions of this legislation are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","The relevant provisions of this LAW ( hereafter referred to as the \u201c CPA \u201d ) provide as follows :","\u201c During the course of the proceedings , the court shall ex officio verify whether the person appearing as a party may be party to the proceedings and whether he or she has the capacity to act ... \u201d","\u201c Should the court establish that the person appearing as party can not be party to the proceedings , and that this obstacle can not be eliminated , it will invite the plaintiff to undertake the necessary amendments to the claim ... \u201d","\u201c CARDINAL . Relevant facts may also be established by hearing the parties .","The court shall decide to hear the parties when there is no other evidence or when , despite the presentation of other evidence , the court deems it necessary with a view to establishing relevant facts . \u201d","\u201c ... CARDINAL . The court may decide to hear CARDINAL of the parties , if the other party refuses to give a statement or does not appear [ at the hearing ] despite the court summons .","If a party dies in the course of the proceedings , or his or her repeated examination becomes impossible for some other reason , the court will read TIME containing that party 's statement . \u201d","\u201c The party may be heard through another court only if he or she can not come to the court in person due to obstacles which can not be eliminated or at extremely high costs . \u201d","\u201c CARDINAL . The court may not use any compelling measures in respect of the party which did not appear at the scheduled court hearing [ for the examination of the parties ] , nor can a party be forced to give a statement .","'s failure to appear or refusal to give a statement . \u201d","\u201c If a hearing is held before a new formation [ of judges ] , the main hearing must recommence , but the chamber may , having consulted the parties , decide not to hear witnesses and expert witnesses or hold an on - site inspection again , but instead read TIME of the evidence already taken . \u201d","The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL and CARDINAL , DATE ) .","Sections CARDINAL , CARDINAL and CARDINAL of this Code define \u201c abuse of office \u201d ( zloupotreba slu\u017ebenog polo\u017eaja ) , \u201c judicial malfeasance \u201d ( kr\u0161enje zakona od strane sudije ) and \u201c official malfeasance \u201d ( nesavestan rad u slu\u017ebi ) as separate criminal offences .","Article CARDINAL of LAW ( Ustav PERSON ) , published in ORG of GPE ( ORG - no . CARDINAL ) , provided as follows :","\u201c Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .","Such damages shall be met by GPE or the public authority [ in question ] . \u201d","This LAW was repealed on DATE , which is when the \u201c new \u201d LAW ( published in OG RS no . CARDINAL ) entered into force .","The substance of LAW of LAW corresponds , in its relevant part , to the above - cited text of DATE LAW .","Article CARDINAL of the new LAW provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by LAW .","Section CARDINAL of LAW on LAW ( ORG RS CARDINAL ) provides that the election of ORG judges shall be finalised before the end of the first ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5399","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2000,"docname":"KNEL AND VEIRA v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Luigi Ferrari Bravo","text":["The first applicant , PERSON , is the mother of the second applicant , PERSON . Both applicants are resident in GPE .","ORG had a relationship with PERSON \u2019s father out of which PERSON was born on DATE . It is alleged that this relationship was terminated soon after PERSON \u2019s birth , after which PERSON lived with his mother PERSON . At that time both applicants were resident in NORP and had NORP nationality .","Ms Knel married another man . She and her husband moved to the GPE in DATE , leaving PERSON with his paternal grandparents . She now has GPE nationality . PERSON still has NORP nationality .","In DATE PERSON applied to the Minister for ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) in PERSON \u2019s name . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights .","By a letter dated CARDINAL DATE ORG of ORG informed the GPE embassy in GPE that there was no objection to the grant of a provisional residence visa to GPE . The applicants state that they were never informed of any decision , whether favourable or otherwise . They did not , however , take proceedings on the basis of an implied refusal , as they might have done within a reasonable time if it appeared that a decision was not forthcoming . It appears that PERSON remained in GPE .","A new request for a provisional residence visa was lodged in DATE , through the GPE embassy in the NORP capital GPE . On DATE the Minister for Foreign Affairs gave a decision refusing such a visa on the ground that PERSON , having been resident with his grandparents since DATE , had ceased to be part of his mother \u2019s family unit .","The applicants lodged an objection ( bezwaarschrift ) against this decision on DATE . Following a hearing on DATE the Minister for ORG gave a decision on DATE dismissing the objection . This decision was transmitted to the embassy in GPE .","The applicants lodged an appeal with ORG ( GPE rechtspraak ) of ORG ( PERSON ) against the Minister \u2019s decision on DATE . This appeal was withdrawn on DATE . It is stated that their reason for so acting was that PERSON could not obtain a passport from the NORP authorities , and that without a passport they did not expect the appeal to have any prospects of success .","As alleged by the applicants , the situation in NORP had become untenable due to the deterioration of PERSON \u2019s GPE health . PERSON decided to bring PERSON into the GPE without complying with the formalities , and on DATE PERSON entered GPE .","On DATE , DATE after PERSON had entered the GPE , Ms GPE applied in his name for a residence permit . By a decision dated DATE the Deputy Minister of ORG refused to grant such a permit .","On DATE the applicants lodged an administrative appeal ( administratief beroep ) against the Deputy Minister \u2019s refusal . This was rejected on DATE .","The applicants appealed to ORG ( Arrondissementsrechtbank ) of GPE on DATE .","Following a hearing on DATE ORG dismissed the appeal on DATE . ORG considered that PERSON could be cared for in NORP by a sister of PERSON \u2019s father , with financial assistance from ORG if need be , and that the applicant \u2019s separation in DATE had been a consequence of ORG choices with regard to the way she had wished to lead her personal life .","It appears from a letter received from the ORG representative on DATE that the GPE authorities were then contemplating removing PERSON to NORP . However , the ORG has not been informed that this has taken place ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-83464","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF LUCZAK v. POLAND","importance":3,"conclusion":"Violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - financial award (total);Costs and expenses partial award - Convention & domestic proceedings","judges":"Nicolas Bratza","text":["The applicant , who is a NORP national of NORP origin , was born in DATE and lived in GPE .","The applicant moved to GPE in CARDINAL . He was in employment for DATE and consequently was affiliated to the general social security scheme . The relevant law governing it did not exclude the participation of foreign nationals in the general social security scheme .","On DATE the applicant and his wife , who is a NORP national , jointly bought a farm . They took possession of it on DATE . At about that time the applicant terminated his employment and decided to make his living from the farm .","On DATE the applicant requested the GPE branch of ORG ( PERSON ) to admit him to the farmers ' social security scheme .","On DATE his request was refused on the ground that he was not a NORP national , a condition stipulated in ORG of DATE ( \u201c the DATE LAW ; ustawa o ubezpieczeniu spo\u0142ecznym rolnik\u00f3w ) . As a result , the applicant did not have social security cover in the event of sickness , occupational injury and invalidity . In addition , he could not pay contributions towards his old - age pension .","In a decision given on DATE , the applicant 's wife was admitted to the farmers ' scheme .","The applicant appealed against the decision given in his case . He submitted that as a self - employed farmer he was exposed to the risk of work - related accidents . Furthermore , he argued that since he had acquired the farm he had terminated his previous employment and that the farm was intended to provide for his livelihood . The applicant also submitted that when previously employed he had been covered by the general social security scheme despite his foreign nationality . As a result of the refusal , he could not pay his social security contributions , so the relevant time would not be taken into account when calculating his future retirement pension .","He also submitted that he had been informed about an obligation to join the scheme by way of a clause in the notarial deed whereby he had acquired the farm . In addition , the applicant stated that he had been living in GPE for DATE and that he had had a permanent residence permit for DATE . He also referred to his NORP origin and his willingness to pay the relevant contributions to the scheme .","On DATE ORG dismissed the applicant 's appeal , finding that the applicant could not be admitted to the farmers ' social security scheme as he did not have NORP nationality . On the other hand , it observed that in the event of a serious occupational injury the applicant could be granted a CARDINAL - off compensation payment as provided in section CARDINAL(CARDINAL)(CARDINAL ) of LAW . As regards access to health services , ORG noted that the applicant , as a foreign national permanently residing in GPE , would be provided with such access by a law which was to come into force on DATE .","The applicant appealed against that judgment . He submitted that the refusal to admit him to the social security scheme for farmers on the basis of his nationality was discriminatory . He alleged a breach of the principle of equality , relying on the LAW and LAW ( \u201c the ORG \u201d ) .","On DATE ORG dismissed the applicant 's appeal . It found that the applicant could not base his claim for admission to the farmers ' social security scheme on the LAW as the latter provided in LAW for statutory limitations on the rights of aliens . Similarly , ORG held that the DATE bilateral treaty concluded between GPE and GPE in matters of social security was applicable exclusively to employees . The applicant 's claim based on the ORG was also dismissed . ORG noted that LAW ORG included a provision on the right of everyone to social security . However , it held that the provisions of the LAW were not self - executing and left GPE a margin of discretion as to the manner of their implementation in domestic law .","The applicant lodged a cassation appeal against that judgment with ORG . On DATE ORG dismissed his cassation appeal , relying principally on the same grounds as ORG . Additionally , it observed that LAW provided that the right to social security was guaranteed only to NORP nationals .","In DATE the applicant requested the President of ORG to admit him to the farmers ' scheme as an exception to the existing rules . On DATE the President of ORG refused and informed the applicant that LAW expressly excluded the admission of non - NORP nationals to the scheme . That rule was applicable to farmers , their spouses and members of their household .","In DATE the applicant petitioned the ORG . On DATE the ORG wrote to the Minister of Agriculture , stating that discrimination on the ground of nationality in respect of the provision of social security to farmers was questionable in view of the obligations specified in the ORG . He requested the Minister to urgently prepare a relevant amendment to LAW . On DATE the Minister informed the ORG that amendments were being prepared . Those amendments would enable farmers of foreign nationality having permanent residence status in GPE to join the farmers ' scheme . It was envisaged that the amendments would enter into force on DATE . The applicant was informed of this by the ORG . However , the amendments were not enacted .","In DATE , in view of the prolonged uncertainty as to his social security cover , the applicant went to the GPE , where he obtained a job . From DATE to DATE the applicant was on sick leave and subsequently he has been in receipt of a sickness allowance .","On DATE the CARDINAL Act was amended in connection with GPE 's accession to ORG ( ORG ) . The amendments provided , inter alia , that nationals of ORG Member GPE and foreign nationals in possession of a residence permit could join the farmers ' scheme .","The European Social Charter DATE ( \u201c the GPE \u201d ) , which entered into force in respect of GPE on DATE , provides , as relevant :","\u201c The governments signatory hereto , being members of ORG , ...","Considering that the enjoyment of social rights should be secured without discrimination on grounds of race , colour , sex , religion , political opinion , national extraction or social origin ; ...","Have agreed as follows : ... \u201d","\u201c The Contracting Parties undertake , as provided for in Part III , to consider themselves bound by the obligations laid down in the following articles and paragraphs . ... \u201d","\u201c With a view to ensuring the effective exercise of the right to social security , the Contracting Parties undertake :","NORP to establish or maintain a system of social security ;","NORP to maintain the social security system at a satisfactory level at least equal to that required for ratification of FAC ( No . CARDINAL ) Concerning Minimum Standards of Social Security ;","to endeavour to raise progressively the system of social security to a higher level ;","NORP to take steps , by the conclusion of appropriate bilateral and multilateral agreements , or by other means , and subject to the conditions laid down in such agreements , in order to ensure :","a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights , including the retention of benefits arising out of social security legislation , whatever movements the persons protected may undertake between the territories of the Contracting Parties ;","b. the granting , maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties . \u201d","In accordance with LAW , GPE considered itself bound by a number of substantive provisions of the LAW , including LAW .","Article CARDINAL of the LAW reads :","\u201c CARDINAL . Any person within the jurisdiction of GPE shall enjoy the freedoms and rights guaranteed by LAW .","Exemptions from this principle with respect to aliens shall be specified by statute . \u201d","LAW provides :","\u201c A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidity as well as having attained retirement age . The scope and forms of social security shall be specified by statute . \u201d","NORP The social security scheme for farmers is regulated by ORG of DATE ( \u201c the DATE LAW ; ustawa o ubezpieczeniu spo\u0142ecznym rolnik\u00f3w ) . At the relevant time section CARDINAL(CARDINAL ) of the DATE Act provided , in so far as relevant :","\u201c The social security [ scheme ] for farmers shall cover farmers of NORP nationality and NORP members of their household working with them . \u201d","The Social Security ( ORG and Members of LAW of DATE , which predated LAW , did not lay down a nationality condition .","The scheme set out in the DATE Act provides the following benefits : ( CARDINAL ) sickness and maternity benefit , ( CARDINAL ) benefit in respect of occupational injury and disease , and ( CARDINAL ) old - age and invalidity pension . It is operated by ORG ( PERSON ) , a specialised government agency which is subsidised by the ORG budget . Depending on the size of their farms , farmers are either required to join the scheme by law or may join at their own request . Each farmer admitted to the scheme is required to pay contributions to it , the amount of which does not depend on the size of the farm or the level of income from it . The precondition for admission to the scheme is to be an owner of a farm , regardless of whether farming is the main source of the farmer 's livelihood .","On DATE the CARDINAL Act was amended . The relevant amendment , which entered into force on DATE , broadened the range of farmers who could be admitted to the farmers ' social security scheme by , inter alia , including nationals of the ORG Member GPE and foreign nationals residing in GPE on the basis of a visa or a residence permit .","At the relevant time the rules governing the operation of the general social security scheme for employees were laid down in ORG of DATE ( ustawa o organizacji i finansowaniu ubezpiecze\u0144 spo\u0142ecznych ) . The LAW did not provide for any restrictions on admission to the general social security scheme on the basis of an employee 's nationality , with the exception of those aliens who did not reside permanently in the country or were employed by foreign diplomatic missions . On DATE the Act of CARDINAL DATE was repealed and replaced by ORG of DATE ( ustawa o systemie ubezpiecze\u0144 spo\u0142ecznych ) . However , the rule in respect of the admission of employees of foreign nationality to the general social security scheme remains the same .","In DATE GPE and GPE concluded LAW ( PERSON pomi\u0119dzy PERSON a PERSON o zabezpieczeniu spo\u0142ecznym ) . However , the provisions of that Convention were applicable exclusively to employees and other workers in comparable positions , as opposed to self - employed persons ."],"violated_articles":["14","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22203","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2002,"docname":"TOKARCZYK v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .","In DATE ORG instituted investigations in respect of a person or persons unknown on suspicion of aiding and abetting abortion . On DATE ORG ordered the interception of the applicant \u2019s telephone calls as he suspected him of having committed a criminal offence of aiding and abetting abortion .","On CARDINAL DATE the applicant was remanded in custody . He was released on an unspecified date after DATE of detention .","On an unspecified date the applicant appealed against the decision of CARDINAL DATE , submitting that the interception of his phone calls had exposed his family to harassment by the employees of the ORG telecommunications service . On DATE ORG upheld the contested decision , considering that it had been justified by the need to gather evidence in the proceedings . The recorded conversations had served as evidence , which enabled charges to be brought against the applicant . After the applicant was arrested , the interception of his phone calls was terminated on DATE .","By virtue of a judgment of ORG of DATE the applicant was found guilty on CARDINAL counts of aiding and abetting abortion in return for payment . He was also convicted of inciting one of the women who had had an abortion , ORG , to give false evidence . The applicant was sentenced to CARDINAL and a half years\u2019 imprisonment and a fine of MONEY ( ORG ) was imposed on him .","The court established that from DATE the applicant had been regularly placing advertisements in the local newspaper : \u201c Gynaecologist - inducing periods ; call after TIME \u201d , and giving a phone number of a flat owned by him . Numerous women had telephoned him . He offered a service of taking them by his car to a hospital in GPE in GPE , where abortion remained legal , for a fee of MONEY . He had travelled to GPE CARDINAL times , on various dates from DATE until CARDINAL DATE , with CARDINAL women who had had abortions in the local hospital . The court relied on the testimony of QUANTITY witnesses , including the QUANTITY women concerned , the staff of the newspaper in which the applicant had placed his advertisements , the persons living in his flat where he had been taking the phone calls , and other persons living in the neighbourhood . The court also relied on numerous documents in the case - file . As regards the charge of inciting ORG to give false evidence , the court relied on the transcripts of the applicant \u2019s conversation with her , in which he had suggested that she tell the court that she travelled to GPE to visit her family . The court further considered that the transcript of the CARDINAL conversations was consistent with the evidence that this witness had given in the court .","The applicant appealed against that judgment . He submitted , inter alia , that the court had committed an error of fact in that it had failed to order expert medical opinions to establish whether the health of the women concerned had been such as to justify abortion under the law as it had stood at the material time . It was further argued that the court had failed to establish whether the women concerned were in a \u201c difficult personal situation \u201d within the meaning of ORG , and LAW . The court had limited its considerations in this respect to the women \u2019s financial situation , entirely overlooking all other aspects of what could legitimately be understood as their \u201c personal situation \u201d . The term \u201c personal situation \u201d should have been interpreted as referring to a woman \u2019s situation as a whole , including her subjective feelings . Regard should have been had to the particularly delicate situation of a woman in an unwanted pregnancy , often confronted with the hostility of her environment and having to cope with prejudices and negative opinions in respect of unmarried mothers . Only through a full assessment of all such circumstances could it be established whether the women in the instant case were in a difficult personal situation such as to render voluntary termination of pregnancy lawful under the provisions of the LAW . Lastly , the applicant argued that the lower court did not have any credible evidence on which to convict him of inciting ORG to give false evidence .","On DATE ORG upheld the contested judgment . The court considered that there was in fact evidence concerning the charge of inciting ORG to give false testimony , namely the transcript of the telephone conversations between her and the applicant on CARDINAL DATE and CARDINAL DATE , numbered CARDINAL and CARDINAL . As to the health of the women who had had abortions , the court observed that there were no indications that the applicant had been interested in their health when he had offered his services . Therefore it could not be accepted that their health could have been such as to amount to a fact justifying the abortion within the meaning of the LAW then in force , or that the applicant had himself had any regard to this factor . Insofar as the applicant argued that the lower court had failed to establish whether the women were in a \u201c difficult personal situation \u201d , the court considered that the assessment made by the lower court was not arbitrary and that it was compatible with ordinary life experience .","The applicant lodged a cassation appeal with ORG . submitting complaints similar to those advanced in the appeal against the first - instance judgment . On DATE ORG dismissed the cassation appeal as manifestly ill - founded .","Subsequently , the applicant applied to ORG of ORG to grant him a stay of execution of the sentence as his health necessitated continuous medical care . On DATE the court granted him a stay of execution . On an unspecified date the applicant applied again for a stay of execution of the sentence and on DATE ORG refused , holding that there were no indications that the serving of a prison sentence would entail any deterioration of his health . Subsequently , the applicant applied to ORG to reopen the criminal proceedings in his case , submitting that ORG had , at his request , instituted criminal proceedings against witnesses who had testified in his case as their testimony had allegedly been false . Simultaneously , he applied for a stay of execution of the sentence .","On DATE ORG refused to grant him a stay of execution .","On an unspecified later date the applicant appealed against the ORG decision of DATE and on DATE ORG granted him a stay of execution of the sentence until DATE . Apparently , the applicant submitted further applications for a stay of execution and they all were refused .","On an unspecified date the applicant requested ORG to set a date for the in respect of his application to reopen the proceedings in his case . On DATE he was informed in reply that the hearing could not be held until the final decision was given in the criminal proceedings against witnesses , as the decision was of significant importance for the decision on the reopening of the proceedings .","On an unspecified date ORG discontinued the proceedings against the witnesses , finding that they had no case to answer . The applicant appealed against that decision and LOC ordered his appeal to be considered by ORG .","LAW , applicable at the material time , provided that the prosecutor or the court was empowered to order that telephone communications , which could be of potential relevance to criminal investigations , be intercepted . The service of such a decision on the accused could be postponed for a specific period , considered necessary in the interest of the investigations .","Under the Minister of ORG \u2019s Order of CARDINAL DATE on the interception of phone calls , recordings of telephone conversations were to be made on the basis of the prosecutor \u2019s or court \u2019s order , within the time - frame and scope specified in that order .","A woman \u2019s right to seek an abortion was introduced in GPE in DATE . DATE until DATE voluntary termination of pregnancy on social grounds was in practice allowed .","ORG , and Conditions Permitting Pregnancy Termination Act was subsequently adopted by ORG on DATE . It seriously limited the grounds on which abortion could be sought . On DATE an amended text of the Act entered into force . The law as amended provided that pregnancy could be terminated only in the following cases : where pregnancy endangered the mother \u2019s life or health ; whre pre - natal tests or other medical findings indicated a high risk that the foetus could be severely and irreversibly damaged , or be suffering from an incurable life - threatening disease ; where there were strong grounds for arguing that the pregnancy was a result of criminal activity ( rape or incest ) ; or where the mother was in a difficult personal situation .","On DATE ORG ruled that LAW , making human life in its pre - natal stage dependent on the decision of the legislative , did not comply with LAW . That provision stated that GPE was a democratic state ruled by law and implementing the principles of social justice . ORG held that LAW was incompatible with LAW , which proclaimed the principle that marriage , motherhood and the family were to be placed under the protection and care of GPE The Court held that the provision in issue infringed the constitutional guarantees for the protection of human life at each stage of its development .","As a result , further amendments were made in DATE to the text of ORG , and LAW of DATE . In particular , the right to terminate pregnancy where the pregnant woman was in a difficult was abolished . A pregnancy that risks a woman \u2019s life or health , or where the child suffers from a genetic malformation , may only be terminated by a physician in a public health - service institution . A physician other than the one who is to perform the operation must issue the certificate confirming the risk to a woman \u2019s health . If the pregnancy resulted from criminal activity , it may only be terminated by DATE and the prosecutor is required to issue a certificate stating that it is probable that the pregnancy is the result of a crime .","Termination of pregnancy in situations other than those stipulated in ORG , and LAW is now a criminal offence punishable by imprisonment for DATE . The person performing the abortion is held criminally responsible , whereas the woman herself is not ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-120503","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2013,"docname":"LIMAN v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Ale\u0161 Pejchal;Andr\u00e9 Potocki;Ann Power-Forde;Ganna Yudkivska;Helena J\u00e4derblom;Mark Villiger;Paul Lemmens","text":["NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE . Before being imprisoned the applicant lived in GPE , GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr N. Kulchytskyy .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant and CARDINAL accomplices attacked and robbed Mr PERSON , PERSON and PERSON . in their home .","On DATE the applicant was arrested by police officers after being identified by PERSON","On CARDINAL DATE the ORG ( \u201c the ORG \u201d ) found the applicant guilty of robbery and sentenced him to DATE and CARDINAL months\u2019 imprisonment , with confiscation of his property . The applicant was represented by CARDINAL lawyers in those proceedings .","On DATE and CARDINAL DATE ORG ( \u201c the Court of Appeal \u201d ) and ORG , respectively , upheld the judgment of CARDINAL DATE .","On DATE ORG , in the course of civil proceedings , ordered the applicant to pay CARDINAL NORP hryvnias ( ORG ) in respect of pecuniary damage and UAH CARDINAL,CARDINAL in respect of non - pecuniary damage in favour of PERSON and PERSON in compensation for the crime he had committed against them .","On DATE the applicant appealed against that judgment . The appeal was handwritten .","On DATE ORG remitted the appeal to ORG for a decision on whether it had been prepared in accordance with the procedural requirements .","On DATE ORG found that the applicant \u2019s appeal had not been properly submitted . The court noted , in particular , that the appeal had not been typewritten ; it did not contain the necessary information about the other parties to the proceedings ; it was not sufficiently reasoned ; no copies thereof had been enclosed for the other parties ; and the court fee for lodging an appeal had not been paid . The court therefore invited the applicant to rectify those shortcomings by DATE .","On DATE ORG found that the applicant had not rectified the shortcomings in his appeal and returned it to him unexamined .","On DATE the applicant submitted a new appeal against the judgment of DATE . The appeal was again handwritten . No evidence was enclosed suggesting that the applicant had paid a court fee , and the applicant did not request exemption from payment of the court fee .","On DATE ORG returned the appeal to ORG and suggested that it consider whether any steps should be taken to provide the applicant with the requisite facilities to prepare his appeal in accordance with the procedural formalities .","On DATE the applicant signed an agreement with lawyer PERSON according to which that lawyer was to assist him in his criminal case .","On DATE ORG extended the time - limit for appealing against the judgment of DATE and accepted the applicant \u2019s appeal . That hearing was attended by lawyer PERSON","On an unspecified date the case was sent to ORG .","On CARDINAL DATE ORG found that the applicant \u2019s appeal was again not typewritten . It therefore refused to open appeal proceedings and returned the case file to ORG .","The relevant provisions of LAW of DATE ( effective until DATE , the date when the Code of Civil Procedure of CARDINAL DATE came into force ) can be found in the judgment of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76329","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF KOVALENKO v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE the NORP Town Court of the Voronezh Region granted the applicant \u2019s claim against ORG and awarded her MONEY ( RUR ) for pension arrears .","The judgment was not appealed against and entered into force . On DATE a writ of execution was issued .","The judgment was executed on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106147","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2011,"docname":"VLADIMIR KUZNETSOV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in the town of GPE Novgorod . He was represented before the ORG by PERSON , Mr PERSON and Mr PERSON , lawyers practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE ORG of LOC of GPE Novgorod registered the applicant for compulsory military service and scheduled a medical examination of him by a medical panel comprising a number of specialists in order to determine whether he was fit to serve . With the medical panel finding him fit to perform military service , the applicant was drafted into the army and sent to military unit no . CARDINAL in GPE Tagil .","In DATE the applicant and CARDINAL other conscripts were sent for DATE of training with military unit no . CARDINAL in the village of GPE , GPE . According to the applicant , almost immediately upon arrival at that military unit he became the subject of ill - treatment and humiliation by senior conscripts . The treatment included sleep and food deprivation , acts of violence , excessive physical exercise , threats , extortion ( including that of money , food and personal belongings ) , insults and orders to commit theft within the military unit \u2019s LOC or in nearby villages . Similar acts of violence and degrading treatment continued upon the applicant \u2019s return to military unit no . CARDINAL in DATE .","On DATE a senior soldier , sergeant PERSON , woke the applicant up at TIME and ordered him to clean the floors of the barrack \u2019s lavatories . In response to the applicant \u2019s refusal , sergeant PERSON took him outside , ordered him to put on a military hat , having , beforehand , turned it inside out so that the metal cockade on the hat would press against the applicant \u2019s forehead , and allegedly punched him on the head a number of times , leaving an impression of the cockade on the applicant \u2019s forehead . Although the applicant felt extreme pain and was feeling dizzy and disoriented for DATE after the incident , he did not seek medical assistance , considering that to be futile . According to the applicant , the incident on DATE was not the first occasion on which sergeant PERSON had acted violently towards him . For instance , DATE before the events on DATE sergeant PERSON had also hit the applicant when the latter had refused to make coffee for him .","On DATE the applicant was granted leave to stay in town with his parents , who had come to visit him . Having noticed the applicant \u2019s poor state of health , on DATE his mother took him to a private hospital , ORG , where , following an ultrasound scan of his kidneys and abdominal cavity and an examination by a neurologist , to whom the applicant complained of severe headache and dizziness , the applicant was diagnosed with the residual effects of concussion and mild diffuse changes in the liver . No injuries were , however , recorded on his body . Having been questioned by the doctor about the cause of the concussion , the applicant explained that he had hit his head against a propeller shaft when cleaning military equipment DATE before the medical examination .","On DATE the applicant was admitted to the gastroenterological department of ORG . The applicant submitted that his doctors had misinterpreted the symptoms of concussion , such as vomiting and dizziness , considering that he had been suffering from an intestinal disease . He was released from the hospital DATE .","Having again been subjected to mockery on his return to the military unit , the applicant left the unit without authorisation when his parents came to visit him on DATE .","DATE the applicant lodged a complaint with the military prosecutor of ORG , seeking the institution of criminal proceedings against his commanding officers and senior conscripts .","Having heard the applicant and his mother , having interrogated the personnel of the military unit and conscripts who had come into contact with the applicant and having requisitioned medical records describing the applicant \u2019s state of health , on DATE the prosecutor refused to open a criminal case in the absence of any evidence of ill - treatment .","On DATE ORG of the ORG PERSON examined the applicant \u2019s appeal against the decision of CARDINAL DATE and dismissed it as unfounded . ORG studied the materials of the prosecutor \u2019s inquiry and the applicant \u2019s medical history and heard the prosecutor and witnesses , including the alleged perpetrators and the doctors . It endorsed the prosecutor \u2019s conclusion that there was no evidence of ill - treatment : all of the witnesses had denied subjecting or having seen the applicant being subjected to acts of violence or psychological pressure and there was no medical evidence , save for the medical certificate of DATE , documenting signs of possible violence . The court noted , in particular , that DATE medical examinations of soldiers had been performed in the military unit and that injuries had never been discovered on the applicant \u2019s body . Relying on medical expert testimony , the court stressed that the diffuse changes discovered in the applicant \u2019s liver during the examination in the private hospital were linked to illnesses of the digestive system . As to the alleged residual effects of concussion , the court found no reason to doubt the applicant \u2019s statement given to the doctors that he had hit his head against a propeller shaft .","Having been properly informed of the hearings before ORG of the ORG FAC , the applicant did not attend .","On DATE ORG of ORG dismissed the applicant \u2019s appeal against the judgment of CARDINAL DATE , having fully endorsed the lower court \u2019s reasoning . At the same time , the appellate court laid particular emphasis on the applicant \u2019s inconsistent description of events and the fact that , having had an opportunity to freely complain to the doctors in the private hospital , he had explained his alleged concussion as an accident .","Without providing the ORG with a copy of the decision or indicating when the decision had been issued , the applicant submitted that the prosecutor \u2019s decision of DATE had been quashed by a higherranking prosecutor while the appeal proceedings before ORG of ORG had still been pending . According to the applicant , the new round of the investigation had also ended with a decision not to open a criminal inquiry in view of a lack of criminal conduct ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5175","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2000,"docname":"AKAN v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant is a NORP national , born in DATE and currently detained in FAC . He is represented before the ORG by PERSON , a lawyer practising in GPE .","On DATE a naked female body was found dead on the seashore in GPE , a city on the LOC . The same day an autopsy was conducted on the body from which hair and blood samples were taken . On DATE the body was identified as ORG , the wife of a retired colonel . The police was informed that she had been staying at the military ORG guesthouse in GPE . The ensuing investigation led to the arrest of the applicant and his CARDINAL friends ( C. and PERSON ) , who were carrying out their military service as receptionists at the ORG guesthouse .","In his police statement , dated DATE , the applicant confessed that he had been involved in the killing of PERSON , and gave a detailed account of the events . He stated that together with his friend PERSON , they had raped the victim , who had been staying alone in the guesthouse . He further stated that they had killed her , when she threatened to file a complaint against them .","On DATE the police conducted a survey on the scene of the crime together with the applicant and the other accused persons , and the applicant showed where they had hidden the victim \u2019s personal belongings . A knife was found in the basement , on which there was a thread of hair . The applicant also indicated a piece of cloth stuck on the barbed wire surrounding the guesthouse , which had been torn from the victim \u2019s dress as they carried her to the shore . The hair on the knife was later found to be identical to that of the victim . This survey was recorded on videotape .","On DATE the applicant repeated before the public prosecutor the statement he had given to the police . The attorney of the other co - accused , C. , was present during the interrogation by the public prosecutor . The same day , the applicant was placed in detention on remand .","On DATE after the identification of the victim \u2019s body , ORG destroyed the blood and hair samples taken from her body . He further declared lack of jurisdiction and transferred the case file to ORG , as the applicant was a soldier in ORG .","On DATE the ORG initiated criminal proceedings in ORG against the applicant and the other CARDINAL co - accused and charged them with rape and murder . The prosecution requested that the applicant be sentenced to death pursuant to Sections CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW .","Before the court , the applicant gave a different account of the events and blamed the other co - accused , C. , for the alleged offences . According to the applicant \u2019s defence , on TIME of the incident , the applicant \u2019s friend PERSON told him that he wanted to have sexual intercourse with the victim , who had been staying alone in the guesthouse for DATE . Together they entered the victim \u2019s room from the balcony window , where ORG attempted to rape her . Frightened of being caught by the police , PERSON told the applicant that they should kill the victim . According to the applicant , at that point , the victim lost consciousness . The applicant and C. carried the victim from her room to the shore , where she regained consciousness and started to struggle with the attackers . C. stabbed her in the back and the applicant also stabbed her . According to the applicant \u2019s statement , when they returned to the guesthouse , C. collected the victim \u2019s personal belongings , including her jewellery , from her room . The applicant further confessed before the court that he had taken a bracelet and a necklace belonging to the victim .","Moreover , the applicant denied his statement taken by the police and alleged that he had been subjected to ill - treatment during police custody . He further maintained that during his interrogation by the public prosecutor , he had been told to repeat his police statement .","","The court further took oral evidence from the other CARDINAL defendants , and they also confessed being involved in the alleged offences . In his statement , PERSON maintained that he had been working at the reception at the time of the incident . He stated that , a day before the incident , he had heard the applicant say that he wanted to rape PERSON In his statement PERSON further explained that he had not seen the other CARDINAL defendants entering the victim \u2019s room , but had seen them carrying the victim from the guesthouse to the seashore . He confessed that he had helped them carry the victim out of the guesthouse , and that the other CARDINAL had then carried her to the shore . PERSON stated to the court that when they came back after TIME later , their clothes were wet and the applicant was holding a screwdriver and a knife . He further stated that , as he was scared , he did not talk about this incident with anyone .","The applicant requested the court to take oral evidence from the victim \u2019s husband . On DATE the court refused the applicant \u2019s request on the ground that the victim \u2019s husband was not an eye witness to the crime in question and that his testimony would not in any way have an effect on the elucidation of the case .","On DATE a survey of the crime area was conducted by order of the military court .","On DATE ORG , in view of the GPE confessions , the autopsy report , the survey of the crime scene , the blood sample tests and the incident reports , established the facts as follows . The applicant and his friend PERSON , who had planned to rape the victim , entered the victim \u2019s room from an open balcony window , leaving PERSON in the reception to watch out . When they entered the room , they found the victim asleep and put a pillow over her head to prevent her from screaming , and then they raped her . When the victim started shouting , the CARDINAL friends decided to kill her to prevent her from filing a complaint . They first tried to strangle ORG with a bathrobe belt , at which point she lost consciousness . Then they took her to the seaside , trying to drown her in the sea . However , the victim gained consciousness and tried to run away . Consequently , they started punching and hit her on the face with a stone . The applicant also stabbed the victim in her back with a screwdriver , whereas C. stabbed her with a knife in the stomach . Then C. tried to kill the victim by cutting her aorta . When ORG died , ORG slashed the victim \u2019s face in order to prevent the identification of the body . Then , leaving the body on the shore , they returned to the guesthouse . They packed the victim \u2019s personal belongings , took her jewellery and hid them in the basement of the building . Accordingly , the court found it established that the applicant had acted with premeditation in order to rape ORG and had then killed her to avoid being caught by the police .","ORG also held that the applicant \u2019s allegations of ill - treatment in police detention were unsubstantiated , as there was no evidence in support of these allegations . The court further stated that the applicant had repeated his confession before the public prosecutor in the presence of a lawyer and had not complained about ill - treatment .","Consequently , ORG convicted the applicant as charged and sentenced him to death .","The applicant appealed and ORG held a hearing and examined the case once again . On CARDINAL DATE ORG dismissed the applicant \u2019s appeal , finding the first - instance court \u2019s establishment of the facts and evaluation of evidence in line with the domestic and general principles of law ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57571","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":1986,"docname":"CASE OF SANCHEZ-REISSE v. SWITZERLAND","importance":2,"conclusion":"Violation of Art. 5-4;Costs and expenses award - Convention proceedings","judges":"C. Russo","text":["ORG Mr. PERSON , an NORP businessman born in GPE Aires in DATE , had for DATE been resident with his wife and their CARDINAL children in GPE ( GPE ) . He was arrested in GPE with a view to being extradited but objected to his extradition and applied for provisional release , as described below .","ORG On instructions from ORG ( \" the ORG \" ) , the GPE cantonal police arrested the applicant in GPE during TIME and immediately transferred him to LAW prison in GPE .","The authorities of GPE had sent radio - telegrams to the authorities of ORG on DATE asking for help in identifying the CARDINAL persons thought to be responsible for kidnapping a NORP banker , K , in GPE Aires on DATE . The kidnappers had demanded a ransom and had required ORG wife and sister to go first to GPE , then to GPE - where the money was placed by them in an account opened in their name with the ORG - and then to GPE .","ORG In a radio - telegram dated CARDINAL DATE , ORG requested the provisional arrest of the suspects with a view to extradition . On DATE , the ORG accordingly issued a warrant for Mr. PERSON GPE \u2019s arrest , and this was served on him on DATE .","ORG On DATE , ORG in GPE confirmed ORG \u2019s request for the arrest of the CARDINAL NORP nationals . In \" notes verbales \" dated DATE , DATE and CARDINAL May , it produced various supporting documents . Together , these notes and documents constituted a formal extradition request .","ORG In a letter of CARDINAL DATE , the ORG forwarded the documents received to the GPE authorities , for consideration at the hearing of the applicant . Copies were sent to the latter \u2019s lawyer and to ORG ( \" the Public Prosecutor \" ) . On DATE , ORG suggested that the ORG officially inform the NORP authorities of offences of receiving stolen goods which Mr. PERSON - GPE was charged with having committed in GPE , but he pointed out that they had not given rise to any penalties in that country . He refused to institute proceedings in GPE , and on DATE ORG of the GPE decided that there were no grounds for opening an investigation there .","ORG At the hearing held in the meantime , which was attended by his lawyer , the applicant had indicated his refusal to be extradited . In a letter of DATE , the ORG gave the lawyer until DATE to state the reasons for his client \u2019s objections . It extended this time - limit to CARDINAL DATE and subsequently to DATE .","ORG In the meantime , on CARDINAL DATE , ORG submitted letters rogatory to the ORG concerning the kidnapping of an NORP financier , C , in GPE Aires on DATE , for which the same group of persons was thought to have been responsible . The letters rogatory were executed in GPE on DATE . By \" notes verbales \" dated CARDINAL , DATE and DATE , the ORG formally submitted a second request for the extradition of Mr. PERSON - GPE , among others .","ORG On DATE , the ORG instructed the GPE cantonal authorities to hold a second hearing on the applicant \u2019s extradition , this time on the basis of the documents relating to the kidnapping of C. At the hearing the applicant continued to resist extradition .","ORG On DATE , Mr. PERSON - GPE \u2019s lawyer sent the ORG a memorandum setting out the reasons for the applicant \u2019s objection to being extradited ( see paragraph CARDINAL above ) . The reasons included the following : the documents submitted in support of the extradition request did not satisfy the formal requirements laid down in the Convention on the Extradition of Criminals between GPE and GPE ( see paragraph CARDINAL below ) , since they contained no description of the offences with which the applicant was charged ; as regards the CARDINAL kidnappings of which he was accused by the NORP authorities , which were moreover of a political character , Mr. PERSON - GPE was innocent ; if extradition was granted , it would be contrary to Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of LAW , as it would expose the applicant to inhuman treatment and he would have no guarantee of a fair trial .","ORG On DATE , ORG ( CARDINALst ORG ) accepted Mr. PERSON GPE \u2019s objection and accordingly decided not to authorise his extradition . It was of the opinion that \" the overall circumstances [ gave it ] serious reason to fear that the treatment which might be accorded to the objectors by the requesting ORG , either before judgment or during the enforcement of sentence , would violate the rules governing respect for human rights \" . The ORG further decided that the offences mentioned in the extradition request should , with CARDINAL exception , be the subject of a prosecution and trial by the appropriate GPE cantonal authorities , pursuant to Article PERSON , first paragraph , of ORG . Lastly , it directed that the applicant be kept in detention with a view to extradition until the GPE authorities had ruled on his detention on remand in the criminal proceedings that were to be instituted .","ORG On DATE , ORG ordered that a criminal investigation be opened against Mr. PERSON - GPE and the investigating judge preferred charges of , inter alia , attempted extortion against him . As a result , the detention with a view to extradition was transformed into detention on remand .","ORG On DATE , ORG of ORG instructed the GPE cantonal authorities to prosecute the applicant and bring him to trial .","On DATE , the applicant admitted the charges of attempted extortion and blackmail in the K case ( see paragraph CARDINAL above ) . On DATE , ORG of the GPE of GPE ( CARDINALst ORG ) sentenced him on these charges to imprisonment for DATE and DATE , subject to deduction of DATE he had spent in detention on remand .","ORG Having been put under a regime of semi - liberty , the applicant absconded in DATE . During his detention with a view to extradition , he had on CARDINAL occasions applied for release .","ORG On DATE , Mr. PERSON - GPE and his wife , who had been arrested at the same time and for the same reasons as he had , had requested the ORG to order their provisional release . On DATE , the ORG accepted the request submitted by Mrs. PERSON - GPE on payment of a surety of CARDINAL GPE . In order to facilitate his wife \u2019s release , the applicant had withdrawn his own request .","ORG On DATE , Mr. PERSON - Reisse made a fresh request to the ORG , arguing : that for DATE he had been detained with a view to his extradition , whereas he had objected to the latter measure ; that he was not guilty of the offences with which he was charged by the NORP authorities ; that the evidence submitted by them was manifestly inadequate ; and that his state of health had seriously worsened as a result of his detention .","ORG On DATE , the ORG informed the applicant \u2019s lawyer that it had decided not to grant the request , which would consequently be passed to ORG ( see paragraph CARDINAL below ) . It considered , in the light of information provided by the medical service of Champ - Dollon prison , that the medical supervision and psychiatric treatment being undergone by the applicant were compatible with his remaining in custody . It drafted a CARDINAL-page report for ORG on the CARDINAL NORP suspected of the kidnapping of K , together with an aide - m\u00e9moire .","ORG On DATE , the ORG forwarded the request for release to ORG , together with the CARDINAL documents referred to above , \" so that a decision could be given by a court in accordance with Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW \" . At the same time it expressed a negative opinion on the request since release did not seem to it to be \" required by the circumstances \" , within the meaning of section CARDINAL of LAW of DATE on ORG ( see paragraph CARDINAL below ) .","ORG On DATE , ORG rejected the request . Mr. PERSON - GPE was notified of the operative provisions of the decision on the following day and of the reasons therefor on DATE . ORG took several factors into consideration : the extradition request submitted by the NORP authorities concerned not only the kidnapping of the NORP banker K but also that of the NORP financier C , and the possibility that the applicant had been involved in CARDINAL of these cases could not be ruled out ; there was a real risk that he might abscond since he resided in GPE and not in his country of origin ; he had not shown that he was unfit to undergo detention and , furthermore , he could obtain the assistance of a doctor in case of need .","ORG In the meantime , on DATE , Mr. PERSON - Reisse had written to the Presidents of ORG and to ORG requesting immediate release . On DATE , a President of ORG said that it was for ORG to give a ruling on requests for release submitted by a person who was detained with a view to extradition . On DATE , the applicant \u2019s lawyer replied that the proceedings in ORG were entirely in writing and that the ORG had taken DATE to reach a decision . The requirements of LAW CARDINAL ( article CARDINAL ) had not been complied with : in particular , the detainee had not appeared in person and a decision had not been rendered speedily . The lawyer therefore confirmed the request for release and asked ORG to give an interpretation of the provision in question . In a letter dated DATE , the CARDINAL presiding judges of ORG stated that it was not competent to deal with the applicant \u2019s release as he had been detained with a view to extradition under a Federal arrest warrant .","ORG On DATE , Mr. PERSON - GPE submitted a further request for release to the ORG ; he claimed that release was justified because of his deteriorating health and he supplied CARDINAL medical certificates . Although the first of these , dated DATE , stated that he could still be cared for by the prison authorities , the second , dated DATE , reported progressive deterioration : \" The lack of a frame of reference in < the applicant \u2019s > current surroundings is conducive to the development of his paranoid ideas and problems in evaluating reality . \"","ORG The request was received by ORG on DATE , DATE It had just finished investigating the extradition request and therefore passed the complete file to ORG on DATE . It did not enclose any opinion , but on DATE the ORG requested it to submit CARDINAL within DATE .","ORG The President of the CARDINALst ORG also informed the applicant \u2019s lawyer that the ORG had been asked for information about the request for release .","ORG On DATE , ORG rejected the request , as the ORG had recommended in an opinion of DATE : the ORG took the view that Mr. PERSON - Reisse had provided no new material important enough to warrant making a decision different from that of CARDINAL DATE ( see paragraph CARDINAL above ) . This decision was notified on DATE .","ORG The procedure for extradition between GPE and GPE is governed in the first instance by a bilateral treaty and , subsidiarily , by municipal law .","The Convention on the Extradition of Criminals between GPE and GPE , signed on DATE , has been binding on both countries since DATE . It lays down the formal and substantive conditions applying to extradition between the CARDINAL countries but does not , either expressly or tacitly , deal with the methods to be used by the courts for supervising detention with a view to extradition . It is therefore NORP law which applies on this point . At the time of the facts in question and until DATE , the instrument applicable was an Act of DATE .","ORG LAW of DATE on ORG ( \" LAW \" ) instituted a sharing of powers in the field in question between ORG ) ( which , for obvious practical reasons , had delegated its powers to ORG ) and ORG , the only judicial authority in GPE with jurisdiction in extradition matters .","ORG It was to the ORG that requests for provisional arrest with a view to extradition and formal extradition requests were addressed . The ORG corresponded directly with the accredited diplomatic missions in GPE - without necessarily going through ORG - and with ORG and the national central offices of ORG . It decided whether there was a case for arresting the wanted person and , if so , served on that person a \" warrant for arrest with a view to extradition \" , which was immediately enforceable throughout NORP territory .","Once the person had been arrested , it was the ORG which conducted the proceedings . It ordered that he be heard by the appropriate cantonal authorities on the extradition request , appointed counsel to represent him if necessary , corresponded with the lawyers involved and informed them of the time - limits to be observed , checked the detainee \u2019s mail and granted or refused him the right to be visited , authorisation to make telephone calls , and so on .","Above all , it was the ORG itself which , in most cases , ruled on extradition requests and requests for provisional release .","The former power ( to rule on extradition requests ) was conferred by LAW and was exercisable where \" the arrested individual [ had ] indicated his consent to his being handed over without delay and ... there [ was ] no legal impediment to his extradition , or ... he [ had ] opposed it only on grounds not based on [ DATE ] Act , on the LAW or a declaration of reciprocity ... \" .","The second power ( to rule on requests for provisional release ) was conferred by LAW , second paragraph , and was exercisable in all cases where the matter had not been referred to ORG . The ORG could grant release if this appeared to be required by the circumstances ( section DATE , first paragraph ) .","Furthermore , whenever ORG was to give a ruling , the ORG carried out the requisite investigations . If the ORG refused to authorise extradition , the ORG was bound by that decision . On the other hand , if the ORG authorised extradition , the ORG could still , for important reasons of political expediency , refuse to extradite the person concerned .","Lastly , it was for the ORG to give instructions for the handing over of the person extradited , arrange the practical details and inform the foreign ORG of the action taken on its request .","ORG was involved in extradition proceedings in CARDINAL sets of circumstances .","If the arrested person protested against the extradition itself by raising an objection based on the LAW , a treaty or a declaration of reciprocity ( section CARDINAL ) , ORG was competent to rule on the merits of the extradition ( section CARDINAL ) , if necessary after ordering additional investigations ( section CARDINAL , second paragraph ) and the personal appearance of the detainee ( section CARDINAL paragraph ) . In the latter event - which was very rare - , the hearing took place in public , unless there were serious reasons to the contrary ( section CARDINAL paragraph ) , and the detainee could be assisted by a lawyer , assigned by the court if need be .","Where the case had been referred to it ( section CARDINAL , second paragraph ) , i.e. if an objection related to the extradition itself , ORG was also responsible for ruling on any request for provisional release lodged by the person who was detained with a view to extradition . It could authorise his release if it appeared that the circumstances so required ( section CARDINAL , first paragraph ) .","ORG In a report to ORG in DATE , ORG drew attention to a number of shortcomings in GPE from the point of view of LAW which it was contemplating ratifying :","\" Persons provisionally arrested on the orders of ORG and Police , in compliance with the wishes of the requesting ORG , have no right of appeal to a court against the decision to arrest them . LAW is , however , being revised , and it is planned to take this opportunity to provide for an appeal to a court against arrests , in accordance with LAW CARDINAL ( article CARDINAL ) of the LAW . \" ( Federal Bulletin , DATE , vol . II , pp . DATE )","ORG The ORG ratified the Convention on DATE . Although declared inadmissible by ORG on DATE ( ORG and Reports no . CARDINAL , pp . CARDINAL ) , the GPE v. GPE application ( no . CARDINAL\/CARDINAL ) revealed that the extradition law fell short of the requirements of LAW CARDINAL ( article CARDINAL ) . The Government considered that , pending the entry into force of a new LAW on international mutual assistance in criminal matters , it should adopt a solution that would meet any difficulty encountered . Taking as its basis the fact that Article CARDINAL para . CARDINAL ( article CARDINAL ) was directly applicable in GPE , ORG and Police took the initiative of exchanging views with ORG . By an exchange of ( unpublished ) letters dated DATE , DATE , DATE and CARDINAL DATE , the CARDINAL institutions agreed to interpret sections CARDINAL of the Act , in particular the second paragraph of LAW , in such a way as to establish the general and exclusive jurisdiction of ORG ( CARDINAL ) to rule on any objection lodged against arrest with a view to extradition ( from then on this legal remedy was expressly mentioned on the back of the arrest warrant , receipt of which had to be acknowledged in writing by the person concerned ) , and ( CARDINAL ) to rule on any request for provisional release , even when , by reason of the absence of any objection to the request for extradition , ORG had no jurisdiction over the merits of the matter .","ORG The transitional arrangements introduced as a result of the exchange of letters were enshrined in LAW of DATE on ORG ( \" the DATE LAW ) , which came into force on DATE , that is after the conclusion of the proceedings at issue in the present case . ORG of ORG rules not only on appeals against warrants for arrest with a view to extradition ( section CARDINAL paragraph , taken in conjunction with section CARDINAL , first paragraph ) but also on appeals against any decision by the ORG refusing provisional release ( section CARDINAL , fourth paragraph ; judgment of DATE , ORG of ORG , vol . CARDINAL , part IV , p. CARDINAL ) .","As regards extradition itself , the ORG is now competent to rule at first instance ( section DATE , first paragraph ) . If , however , the person concerned claims that he \" is being proceeded against because of a political offence \" or if \" the investigation gives serious grounds for thinking that the offence is of a political character \" , the decision rests with ORG ( section CARDINAL , second paragraph ) .","The ORG \u2019s decision can be challenged in ORG by way of an administrative - law appeal ( section CARDINAL paragraph ) ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-99877","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF GELAYEVY v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Reminder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violations of Art. 3 (substantive aspect);Violations of Art. 3 (procedural aspect);Violation of Art. 5;Violation of Art. 13+2;Pecuniary and non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicants are :","( CARDINAL ) Mr PERSON , born in DATE ,","( CARDINAL ) PERSON ( also spelled as PERSON ) PERSON , born in DATE ,","( CARDINAL ) PERSON , born in DATE ,","( CARDINAL ) PERSON , born in DATE ,","( CARDINAL ) Mr PERSON , born in DATE and","( CARDINAL ) Mr PERSON , born in DATE .","The applicants live in GPE , GPE . The first and second applicants are the parents of PERSON ( also known as PERSON or PERSON ) , who was born in DATE . The third applicant is his sister , the fourth applicant is his grandmother , the fifth applicant is his grandfather and the sixth applicant is his uncle .","The facts of the case , as submitted by the parties , may be summarised as follows .","At the material time the settlement of Gikalo in the ORG district of GPE was under the full control of the NORP federal forces ; checkpoints of the NORP military were located on the roads leading to and from the village . On DATE the NORP federal forces conducted a special operation in the village . The operation was carried out with APCs ( armoured personnel carriers ) and LOC vehicles .","In TIME DATE PERSON and the second and third applicants were at home at CARDINAL , FAC , Gikalo . The fourth applicant lived nearby .","At TIME the second applicant heard some noise and looked out of the window . She saw armed military servicemen jumping over the fence . Some of the men were wearing masks . When the second applicant went outside , CARDINAL of the men ordered her to stand up against the wall and pointed his machine gun at her .","Then a large group of the servicemen broke into the house . The second applicant went back inside . There she saw her son , PERSON , and her daughter , the third applicant , standing against the wall . The intruders , who were of NORP appearance and spoke unaccented NORP , demanded that the second applicant give them her son 's passport ; while she was looking for it , they kept hitting her in the back with rifle - butts and saying : \u201c Hurry up , search faster \u201d . After the second applicant found the passport and handed it over to the men , CARDINAL of them took it outside , to an ORG which was parked next to the house . Shortly after that the man brought PERSON passport back . The second applicant attempted to put clothing on ORG , but the servicemen started beating her , PERSON and his sister with rifle - butts .","After that the servicemen dragged PERSON outside . The second and third applicants asked the servicemen to release PERSON saying that his identity documents had already been checked by them . The servicemen told the applicants that they would release him after a check ; the applicants kept begging the men to release their relative and the servicemen beat them with rifle - butts . Then the third applicant ran to the neighbours screaming for help and the second applicant kept following the servicemen . CARDINAL of them pressed his machine gun against her chest and ordered her to get out of the way .","Meanwhile the fourth applicant , who had been told by her neighbours that the servicemen were raiding her son 's house , arrived at the yard and joined the second applicant in attempts to prevent the abduction of PERSON . A crowd of neighbours started gathering and the servicemen began shooting above the crowd 's heads to disperse it . Continuing the beating of the second and fourth applicants in front of the neighbours , the servicemen put PERSON in a LOC vehicle which was parked next to the house ; its registration numbers were covered with mud . A dog , which had arrived with the servicemen , jumped after PERSON into the body of the vehicle and sat next to him .","When the second applicant attempted to get into the LOC , CARDINAL of the servicemen pushed her over and she fell to the ground and lost consciousness . As a result of DATE , the second applicant was hospitalised on DATE and stayed in the Gikalo hospital from DATE to DATE ; she was diagnosed with brain concussion and chest contusion . The fourth applicant was beaten with rifle - butts , dragged aside by CARDINAL soldiers and shoved into a gap between a wall and a block of concrete .","According to a resident of PERSON , PERSON . Ts . , at TIME on DATE he was at home when an ORG pulled over next to his house . CARDINAL armed military servicemen , some of them in masks , rushed into his yard . They put him and his brother , Mr V.Ts . , against the wall and ordered their female relatives to bring over their passports . After the documents were brought over , one of the men read out the passport information to someone via a portable radio set ; TIME Ts . was told that the passports were in order . After that the witness and his brother were taken in the ORG to the village centre and transferred into an \u201c GPE \u201d vehicle ( GAZ-CARDINAL lorry equipped for transportation of detainees ) . The ORG took the CARDINAL brothers and a number of other male residents of PERSON to the LOC military commander 's office in ORG .","According to another resident of PERSON , PERSON , on TIME CARDINAL DATE she was woken up by the noise of vehicles and dogs ' barking . She went outside and saw a group of armed men in camouflage uniforms . They spoke unaccented NORP and were searching the courtyard . Then the men took her brothers , PERSON S. and Mr Sup . S. , outside , searched them and put them in a large military vehicle . The servicemen told her that they would take her brothers for an identity check . After that they took the CARDINAL brothers to the Oktyabrskiy temporary district department of the interior ( the Oktyabrskiy VOVD ) .","According to another resident of PERSON , Mr V.Ts . , at QUANTITY on DATE he arrived at his brother 's house . There he saw a military vehicle with CARDINAL armed servicemen in camouflage uniforms on it ; some of them were wearing masks . The servicemen had specially trained NORP shepherd dogs with them . The majority of these men were of NORP appearance , but CARDINAL of them looked NORP . The servicemen checked the passports ; after that CARDINAL of them spoke with someone via a portable radio set . After that the witness and his brother were taken by the military vehicle to the village centre . There they were transferred to an ORG vehicle in which the witness found a number of his fellow villagers , including PERSON . From there the detainees were taken to the PERSON for TIME and then to the LOC military commander 's office .","According to the applicants , as a result of the special operation CARDINAL residents of Gikalo were detained , and at some point all of them , except for PERSON and Mr Sul . S. , returned home .","NORP Some time later one of PERSON . brothers , PERSON . PERSON , returned home and told her that after the sweeping - up operation on DATE they had been taken to the Oktyabrskiy VOVD . From there the group of detainees from PERSON had been taken to GPE detention centre , and only PERSON and Mr Sul . S. had remained in LOC . According to PERSON . S. , PERSON and Mr Sul . S. had been subjected to torture by the investigators in the PERSON ; during an interrogation one of the officers had cut off an ear from each of them .","According to Mr V.Ts . , after being detained he and his fellow villagers from Gikalo , including PERSON , were taken in the ORG vehicle to ORG . At TIME on DATE the men were taken to a building with a basement . There the witness and his fellow villagers were subjected to continued beatings by their abductors , who used shovels and iron pipes . At some point he fainted ; he regained consciousness when CARDINAL military servicemen were dragging him into a basement . In the basement he and all the other detainees from PERSON , including PERSON , were stripped naked and subjected to another round of beatings with iron pipes and steel rods , and dogs were set on them . After that the villagers were allowed to put their clothes back on and were taken to PERSON in a NORP vehicle . There the detainees spent TIME in the vehicle , handcuffed to a bar and being beaten by military servicemen . In TIME the detainees were taken to the Oktyabrskiy military commander 's office , but PERSON and another detainee were not there as they had probably stayed behind .","According to the sixth applicant , TIME of CARDINAL DATE he was at home when a large group of military servicemen in masks and camouflage uniforms rushed into his yard . The servicemen dispersed throughout the applicant 's household and searched his house , barn and shed . The servicemen forced the applicant into an ORG and took him to the outskirts of Gikalo , where he was transferred to an GPE vehicle . In the ORG the sixth applicant saw CARDINAL other men from the village , including his nephew PERSON . The vehicle took the detainees to LOC , where the men were forced to stand against the wall and were subjected to beatings by shovels , bludgeons and steel rods . At TIME a senior officer arrived at the site and personally kicked each detainee between the legs . After a short break a serviceman with a dog arrived and set the dog on the detainees . Then the detainees were ordered to run to the basement . In the basement they were ordered to take off their clothes ; meanwhile PERSON and Mr Sul . S. were seated at a table and questioned . The applicant heard one of the guards ordering PERSON to put his hands on the table and hitting PERSON 's fingers with a truncheon . Next the officer asked the other servicemen if they had a knife . He could not find one in the basement and went outside . Having found a knife , which looked like that of a hunter , he cut off PERSON ear , wrapped it in a bandage and put it in his pocket saying : \u201c It 's a souvenir for me \u201d . After that he cut Mr Sul . S. 's ear off and gave it to another officer saying : \u201c And here is a souvenir for you \u201d . The latter also put it in his pocket . According to the applicant , after continued beatings he and other detainees were taken to GPE whereas PERSON and Mr Sul . S. remained in LOC .","The applicants further submitted that at DATE , Mr R.Ya . , the head of the criminal search division of FAC , had suggested to their fellow villager , PERSON . PERSON . , that he could show him PERSON who was detained in the building of the PERSON . In addition , DATE , a woman who lived in the ORG neighbourhood in LOC of ORG had visited the GPE detention centre and had seen CARDINAL young men being brought there in APCs . CARDINAL of these men had been PERSON .","At the material time LOC was staffed by officers from ORG . From the documents submitted it follows that the Oktyabrskiy VOVD and the district military commander 's office were located either in the same building or around the same yard .","NORP In support of their statements , the applicants submitted the following documents : a statement by the second applicant ( the date is illegible ) ; a statement by the third applicant dated DATE ; a statement by the sixth applicant ( undated ) ; a statement by the fourth applicant ( undated ) ; a statement by PERSON . Ts . dated DATE ; a statement by PERSON dated DATE ; a statement by Mr DATE . dated DATE ; a statement by Mr NORP dated DATE ; a copy of the medical certificate issued by the ORG district hospital confirming the second applicant 's hospitalisation from DATE to CARDINAL March CARDINAL in the Gikalo hospital dated DATE , and copies of documents received from the authorities .","The Government did not dispute the facts as presented by the applicants . At the same time they stated that no special operation had been carried out in NORP on DATE and that the federal forces had not been involved in the abduction of the applicants ' relative .","According to the applicants , they complained about PERSON abduction to the authorities immediately after the events . However , no reply to their complaints was received .","On DATE the ORG district department of the interior ( the Grozny ROVD ) refused to open a criminal investigation into the abduction of PERSON for the lack of corpus delicti .","On DATE , DATE , the ORG opened search file no . CARDINAL in connection with the disappearance of PERSON .","In DATE the first applicant spoke with the deputy Chairman of ORG NORP President in ORG , PERSON , and the latter informed him that his son was alive and detained somewhere in LOC .","On DATE ORG ( ORG ) forwarded the fifth applicant 's complaint about his grandson 's abduction to the Oktyabrskiy VOVD for examination .","On DATE ORG , PERSON and Order of ORG requested that detention centre LOC in GPE - on - Don inform them whether PERSON , who had been taken away from his home by a group of federal servicemen , was listed among their detainees . In DATE the detention centre replied in the negative .","On DATE the first applicant complained to the GPE prosecutor about his son 's abduction . He stated that PERSON had been abducted with CARDINAL other residents of PERSON during a special operation conducted by a group of federal servicemen in military armoured vehicles ; that the servicemen had beaten the detainees and their relatives with rifle - butts ; that shortly after the abduction the applicant had found out that his son had been detained in the basement of the Oktyabrskiy VOVD where , in the presence of many witnesses , one ear had been cut off as a souvenir from both PERSON and Mr Sul . S. ; that the men had subsequently been thrown into different pits and beaten in the presence of the head of the PERSON , Major PERSON ; that , according to eyewitnesses , on DATE PERSON had still been detained in the basement and that in DATE he had been taken to the GPE detention centre . The applicant requested the authorities to assist him in the search for his son and to prosecute the perpetrators .","On DATE the ORG prosecutor 's office forwarded the first applicant 's complaint about his son 's abduction to the Oktyabrskiy VOVD for examination .","On DATE the GPE prosecutor 's office forwarded the first applicant 's complaint about his son 's abduction by federal servicemen during a special operation on DATE to the ORG prosecutor 's office for examination .","On DATE an investigator from the Gikalo department of the Grozny ROVD questioned the first applicant , who stated that on DATE a group of NORP military servicemen had arrested CARDINAL residents of Gikalo , including PERSON . According to the witness , PERSON had been taken to LOC , where his ear had been cut off as a souvenir and he had been beaten in the presence of the head of the Oktyabrskiy VOVD , officer R.E ; that in DATE PERSON had been taken to the GPE detention centre and that the applicant had visited a number of detention centres in GPE but could not find his son .","On DATE the Prosecutor General 's office in ORG forwarded the first applicant 's complaint about the abduction to the GPE prosecutor 's office . On DATE the latter forwarded this complaint to the ORG prosecutor 's office for examination .","On DATE the ORG district prosecutor 's office ( the district prosecutor 's office ) instituted an investigation into the abduction of PERSON under LAW ( murder ) . The case file was given number DATE . The decision stated , inter alia , as follows :","\u201c ... on DATE a group of unidentified armed men in camouflage uniforms in APCs and a UAZ vehicle took PERSON away to PERSON ; after that he disappeared ...","In this connection , on DATE the ORG refused to institute a criminal investigation owing to the lack of corpus delicti ....","This decision was unlawful as PERSON has not returned home and , therefore , there are sufficient grounds to presume that he was killed ... \u201d","On DATE the first applicant was granted victim status in the criminal case .","On DATE the applicants ' representatives wrote to the district prosecutor 's office and requested to be informed about the investigative measures taken by the authorities and their results . They also requested to be provided with access to the investigation file . On DATE the district prosecutor 's office replied they were taking operationalsearch measures to establish the whereabouts of PERSON .","On DATE the sixth applicant complained to LOC about the disappearance of PERSON from PERSON on DATE .","To verify the applicant 's complaint , the ORG conducted an inquiry into the allegations and in that context the following steps were taken ( see paragraphs DATE below ) .","On DATE police officers questioned the sixth applicant , who stated that on TIME CARDINAL DATE he had been taken away from home by a group of armed men in camouflage uniforms . The men had put him into an ORG and taken him to the outskirts of Gikalo , where he had been transferred into another vehicle in which he had found CARDINAL of his fellow villagers including PERSON . The detainees had been taken first to the PERSON and then to GPE , PERSON had not been among those transferred to GPE . From GPE the sixth applicant had been taken to the village of GPE , then to GPE , GPE , and subsequently , along with CARDINAL other residents of PERSON , PERSON ORG , Mr GPE and Mr PERSON , to the town of GPE in LOC . The applicant had been released DATE after the arrest .","On an unspecified date the police investigators also questioned the second applicant , who stated that she did not know the whereabouts of her son since DATE .","The police investigators obtained a report of a police officer dated DATE according to which PERSON had not been listed as a detainee in LOC in DATE .","On DATE the ORG opened operational - search file no . ORG and took other measures to establish the whereabouts of PERSON .","On DATE the ORG refused to initiate a criminal investigation into the matter stating that \u201c as a result of the inquiry it was not established that a crime had been committed against PERSON \u201d .","On DATE the above refusal was overruled by the supervising prosecutor and criminal case no . DATE was opened under LAW ( murder ) .","On DATE the investigators questioned PERSON , who at the material time worked as the district police officer . He stated that in DATE PERSON had been taken away by armed men in camouflage uniforms who had driven around in APCs . CARDINAL other residents of PERSON had been taken away on TIME . All of them save for PERSON and Mr Sul . S. had returned home at some point later .","DATE . On DATE and DATE the investigators granted the first applicant victim status in the criminal case and questioned him . He stated that on TIME CARDINAL DATE a group of armed masked men had broken into his house and taken away his son PERSON . He further stated that his son had been abducted with CARDINAL other residents of PERSON , including the sixth applicant , who at TIME had been released from a detention centre in GPE . According to the witness , the abductors had taken PERSON and other detainees to LOC , where the guards , PERSON nicknamed \u201c NORP \u201d , PERSON , PERSON , PERSON and Mr I. , together with a ORG driver PERSON , had ill - treated PERSON and the other detainees . The witness further stated that the sixth applicant had been taken from FAC to GPE and then , on CARDINAL or DATE , had been brought back to the PERSON where he had seen PERSON for the last time . The witness provided investigators with all the names and ranks of the senior officers of the Oktyabrskiy VOVD who had served there at the material time and with a phone number of CARDINAL of them .","On DATE the investigators requested ORG to inform them whether any special operations had been carried out by them on DATE in Gikalo . ORG replied that no such operations had been conducted and that they had not arrested PERSON .","On DATE the investigators questioned PERSON Ts . , who stated that on TIME CARDINAL DATE a group of armed men in camouflage uniforms had broken into his house . The intruders had taken him and his brother PERSON . and had put them in a vehicle with PERSON and Mr Sul . S. in it . After that , the detainees had been taken in the direction of PERSON to a building which looked like a gym . There they had been questioned by unidentified men ; in TIME of the same day , the witness had noticed that PERSON and Mr Sul . S. had not been among the rest of the detainees .","On DATE and CARDINAL DATE the investigators questioned Mr LOC . and Mr GPE , whose statements about the events were similar to that given by PERSON . Ts . The investigators questioned Mr NORP again on CARDINAL DATE and he stated that he had been abducted from home by armed men in camouflage uniforms and masks , who had searched his house and taken him and his brother to the PERSON where they had been subjected to beatings and questionings . He also stated that in his presence one of the abductors had cut off an ear from PERSON and Mr Sul . S. and that on DATE all the detainees from PERSON , except for PERSON and Mr Sul . S. , had been transferred to GPE .","On DATE the investigators questioned Mr Sup . S. who stated that on DATE he and CARDINAL other residents of PERSON had been taken to the LOC military commander 's office , then to GPE , then to the GPE ( the detention centre ) in GPE where he had been detained until DATE . According to the witness , his brother PERSON S. and PERSON had not been taken to these detention places as they had remained in the basement of the district military commander 's office .","On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .","On DATE the above decision was overruled by the supervising prosecutor and the investigation was resumed .","On DATE the investigators questioned the sixth applicant , who stated that on TIME CARDINAL DATE he had been at home when he had seen a group of armed men in camouflage uniforms surrounding his house . He had heard them communicating with someone via a portable radio and then someone 's order to \u201c take one PERSON and get out as the locals have started gathering around \u201d . After that the intruders had put him in an ORG and taken him to the outskirts of Gikalo , where he had been transferred to another vehicle with CARDINAL other residents of the village already inside , including PERSON . Then all the detainees had been taken to the Oktyabrskiy VOVD ; PERSON had been taken out of the vehicle first and had been immediately subjected to beating . After that all the detainees had been taken to a room where they had been beaten with bludgeons and steel rods ; as a result the applicant 's ribs had been broken . Then the applicant had been taken to a basement , where he had found PERSON and Mr Sul . S. The intruders had forced the detainees to put their hands on the table and had hit them with bludgeons . After that the applicant had been taken to GPE , whereas PERSON and Mr Sul . S. had stayed behind . From GPE the applicant had been taken to GPE , then to GPE , then to GPE in LOC . In the remand prison in GPE the applicant had met his fellow villagers Mr PERSON , Mr GPE and Mr PERSON , who had been taken away from Gikalo on the same date , then DATE the applicant had been released .","On DATE the investigators again questioned Mr V.Ts . , who stated that on DATE he had been taken from home by military servicemen who had arrived in an ORG . The witness and his neighbour PERSON Ts . had been transferred from the vehicle to an GPE lorry , in which they had met a number of their fellow villagers , including PERSON . The ORG had taken the detainees to the Oktyabrskiy VOVD , where they had been subjected to beatings and put into a basement . There the men had been stripped naked and subjected to further beatings by abductors who had kept taking turns to beat the detainees . On DATE of the detention the men had been taken to the military commander 's office where they had been made to sign documents by a woman of NORP appearance , with a short haircut , called PERSON . She had taken samples of the detainees ' nails and hair , put them in envelopes and sent them for expert evaluation . After that the detainees had been taken in a LOC vehicle to the ORG and then to GPE , where all the men , except for PERSON and Mr Sul . S. , had been detained until DATE . On the latter date the detainees had been transferred to the GPE detention centre from which the CARDINAL residents of PERSON had been released on CARDINAL DATE .","On DATE the investigators again questioned another resident of PERSON who had been detained on DATE , Mr ORG , who stated that he could not recall the details of his detention because as a result of the beatings to which he had been subjected in GPE and other detention centres he suffered from memory problems . On DATE the investigators again questioned the witness , but the Government did not furnish a copy of this statement to ORG .","On DATE the investigators requested the FAC of GPE to provide information about the officers from ORG who had served on DATE in the Oktyabrskiy VOVD .","On DATE the investigators requested information from various detention centres in the LOC concerning the detention of CARDINAL residents of PERSON , including PERSON and the sixth applicant , who had been apprehended on DATE . The investigators also requested various prosecutors ' offices in GPE to inform them whether they had initiated a criminal investigation against any of these residents of Gikalo . On DATE ORG of the Execution of Punishment replied that the CARDINAL applicants and CARDINAL other residents of PERSON had been detained in detention centre IZCARDINAL\/CARDINAL in GPE between DATE and CARDINAL DATE and that they had been released as a result of an amnesty . PERSON had not been detained in this prison . From the replies received from the prosecutors ' offices , no criminal proceedings were pending against any of these men .","On DATE the investigators questioned the applicants ' neighbour Mr PERSON , who stated that on TIME CARDINAL DATE a special operation had been carried out in Gikalo ; as a result his neighbour PERSON and CARDINAL other village residents had been taken away . All of them except for PERSON and Mr Sul . S. had subsequently been released .","On DATE the investigators questioned the applicants ' neighbour PERSON , who stated that on DATE a special operation had been conducted in their settlement , as a result of which LANGUAGE - speaking federal servicemen had arrested and taken away PERSON along with CARDINAL other residents of PERSON . The witness stated that the second applicant had tried to prevent the soldiers taking away her son and that the servicemen had subjected her to a beating , as a result of which she had lost consciousness .","On DATE , and subsequently on DATE , the investigators questioned PERSON Ts . , who stated that on TIME CARDINAL DATE a group of CARDINAL armed NORP military servicemen had arrived at this house on an ORG . The soldiers had run an identity check and verified the passport information by calling someone via portable radio . Then they had taken him and his brother PERSON DATE . in the ORG to the GPE . In the vehicle he had found several of his fellow villagers , including PERSON . Then the detainees had been taken to the Oktyabrskiy VOVD . After their arrival at the police station the CARDINAL detainees had been taken from the vehicle CARDINAL by CARDINAL and beaten ; then they had been taken to a basement and questioned . After that all the detainees save for PERSON and Mr Sul . S. had been taken to GPE . The rest of the witness statement was identical to that given by Mr V.Ts . ( see paragraph CARDINAL above ) .","On DATE the investigators questioned PERSON , who stated that her brothers PERSON and Mr Sul . S. had been abducted by NORP military servicemen on DATE during a ' sweeping - up ' operation . She further stated that her brothers had been detained for some time and that CARDINAL of them , PERSON S. , had managed to return home at some point later . He had told her that after the abduction the brothers had been taken to PERSON , where PERSON S. and PERSON had been subjected to torture , and that their ears had been cut off by the abductors .","On DATE the investigators questioned the third applicant , whose statement about the events of DATE and the subsequent development was similar to that given by PERSON In addition , the applicant stated that during the abduction the intruders had subjected her and the second applicant to insults and beatings and that as a result of it the second applicant had lost consciousness . She stated that she had not sought medical help after the events of DATE , but that her mother , the second applicant , had spent some time in hospital in Gikalo .","On DATE the investigators questioned Mr S .- S.S. , who stated that he had been taken away from home on DATE by NORP federal servicemen who had been conducting a special operation in his village of ORG , and that according to the information received by him from the residents of PERSON , a similar special operation had been conducted in Gikalo on DATE as a result of which CARDINAL NORP residents had disappeared .","On DATE the investigators questioned Mr GPE , who stated that on TIME CARDINAL DATE he had been taken away from home by servicemen from the PERSON ( the special police task force ) . He had been brought with other detained residents of PERSON to the Oktyabrskiy VOVD where they had been beaten . According to the witness , at the PERSON he had been questioned by unidentified persons , one of whom had the rank of PERSON and had been of NORP appearance . The witness and other detainees , except for CARDINAL young men from PERSON , had been taken to GPE . DATE they had been returned to the Oktyabrskiy VOVD , but the young men had not been there . The rest of the witness statement concerning his further detention is similar to those given by PERSON V.Ts . and PERSON . Ts . ( see CARDINAL and DATE above ) .","DATE . On DATE the investigators questioned PERSON . PERSON . , who stated that in DATE he had been searching for his brother , who had been arrested in LOC on DATE and had subsequently disappeared . DATE after his brother 's disappearance , the witness had had a conversation with the head of the criminal police department of the Oktyabrskiy VOVD , Mr R.Ya . , who told him that \u201c ... I have got the right hand of PERSON [ a leader of illegal armed groups ] \u201d and suggested to the witness to have a look at the detainee . The witness had refused . He further stated that the police officers who had served in LOC at the material time had been there on mission from the police department of ORG . He submitted that currently [ at the time of the questioning ] the police officers who had been in charge of the Oktyabrskiy VOVD in DATE were working in various NORP cities and provided the investigators with information concerning their current ranks and positions , as well as their places of work .","On DATE and DATE the investigators questioned Mr Sa . S. and PERSON , who stated that on the morning of QUANTITY DATE CARDINAL of their male relatives had been taken away from home by armed men in camouflage uniforms . The intruders had conducted an identity check , then put their CARDINAL relatives in a lorry and taken them away to an unknown destination . DATE of them had returned home , whereas another one , PERSON S. , had disappeared .","On DATE the investigators questioned PERSON , whose statement about the events was similar to those given by PERSON and Ms GPE","On DATE and DATE the investigators questioned Mr ORG , Mr GPE , PERSON , PERSON and Mr I.E. , all of whom provided similar statements to the effect that on TIME CARDINAL DATE PERSON and Mr Sul . S. had been abducted from their homes by armed masked men in camouflage uniforms , who had arrived in armoured military vehicles and conducted an identity check .","On DATE the investigators conducted the crime scene examination at the household from which PERSON had been abducted on DATE . In that connection no evidence was collected from the scene .","On DATE the investigators questioned PERSON , who stated that in DATE he had been abducted and taken to the Oktyabrskiy VOVD where he had been detained for DATE and subjected to regular beatings . During his detention in the PERSON he had not seen PERSON .","On DATE the investigators questioned PERSON . S. , who stated that on DATE her neighbour PERSON had been abducted by officers of law - enforcement agencies . According to the witness , the abductors had been armed and wearing camouflage uniforms ; CARDINAL of them had been of NORP appearance , had CARDINAL golden teeth and a short grey moustache . She and the second applicant had tried to stop the officers taking FAC away , but the abductors had started beating the women with rifle - butts . After that the officers had put PERSON in a military vehicle and taken him away . CARDINAL other residents of PERSON had been abducted around the same date ; some of them had later returned home .","On DATE , DATE and DATE the investigators questioned CARDINAL operational - search officers of the Grozny ROVD , PERSON and PERSON , and the head of the criminal search division of the PERSON , Mr PERSON All of the officers stated that according to the information received during the investigation of PERSON abduction it had been established that in DATE local law - enforcement agencies had been taking steps to identify members of illegal armed groups and that after the abduction PERSON had been taken to LOC .","DATE . On DATE the Department of ORG ( the UVD ) in GPE replied to the investigators stating the following :","\u201c ... According to order ... no . CARDINAL , any information disclosing personal data of the police officers who are participating or participated in the carrying out of counterterrorist or special operations is a secret . Therefore , it is impossible to provide you with lists and photographs of the officers of the UVD of the KhantyMansiysk Region who were on service mission in GPE in DATE . \u201d","DATE and DATE the investigators questioned CARDINAL former and acting officers of the UVD of ORG who had been on mission in GPE in DATE and had been serving in LOC at the material time . All of the witnesses stated that they did not recall the details of their service in LOC , that they had not participated in special operations and that they had not detained PERSON .","On DATE the investigators questioned PERSON Ts . , who confirmed his previous statements ( see paragraph DATE above ) and added that after the abduction , in the basement of FAC , he had seen PERSON and that his face had been covered in blood .","The Government submitted that the investigating authorities had sent a number of queries to various ORG bodies DATE concerning the possible whereabouts of PERSON , his criminal record , discovery of his body , his detention in custodial institutions , medical treatment in hospitals and any criminal proceedings against him . As a result , a number of negative replies had been received and the whereabouts of the applicants ' relative had not been established . The law enforcement authorities had never arrested or detained PERSON on criminal or administrative charges and had not carried out a criminal investigation concerning him . No special operations had been carried out against the applicants ' relative .","According to the documents submitted by the ORG , the investigation was suspended on CARDINAL occasions : on DATE , CARDINAL DATE and DATE , DATE , DATE , DATE , DATE and CARDINAL DATE . Each decision to suspend the investigation was subsequently overruled by the supervising prosecutors as unlawful and premature . The prosecutors criticised the investigation and ordered that a number of necessary steps be taken . For example , such orders were given to the investigators on CARDINAL occasions : on DATE and DATE , DATE , DATE , DATE , DATE , DATE and DATE .","The Government further stated that even though the investigation had failed to establish the whereabouts of PERSON , it was still in progress and all measures envisaged under domestic law were being taken to solve the crime . The investigation had found no evidence to support the involvement of ORG servicemen in the abduction of PERSON .","Despite specific requests by ORG , the Government did not disclose the entire contents of the investigation file in criminal case no . DATE , providing only copies of \u201c the main documents \u201d from the file of CARDINAL pages .","The applicants complained to the investigators about the illtreatment to which the second and fourth applicant had been subjected by the abductors ( see paragraphs CARDINAL and DATE above ) .","On DATE the investigators decided to conduct a forensic medical examination of the second applicant . The text of the decision included the following :","\u201c ... The investigators questioned the mother of the disappeared ORG Amint Gelayeva [ the second applicant ] , who stated that ... she had tried to stop the abductors from taking away her son , but she could not stop them as she had been hit several times on the head by a rifle - butt and as a result she had lost consciousness . Subsequently she had been treated at the outpatient department of the PERSON hospital ...","... [ it is necessary ] to put the following questions to the experts :","- Are there any injuries on the head and the body of PERSON and if so , how they could have been received , and what is their location , mechanism and the time of their origin ?","-What is the degree of the injuries suffered [ by the applicant ] ?","- How could these injuries have been caused ?","- Was it possible for the injuries to be received under the above circumstances ? \u201d","On DATE the investigators refused to initiate a criminal investigation into the applicants ' complaints of ill - treatment by the abductors . The text of the decision included the following :","\u201c ... the investigators questioned PERSON [ the second applicant ] , who stated that ... when she had attempted to prevent the abductors from taking away her son , the abductors had beaten her and her daughter PERSON [ the third applicant ] , and had hit them several times with rifle butts , as a result of which she had lost consciousness . Subsequently she had been treated at the Gikalo hospital .","The investigators questioned PERSON [ the third applicant ] , who stated that ... she and her mother [ the second applicant ] had attempted to stop the abductors , but they had been subjected to beatings as a result of which her mother [ the second applicant ] had lost consciousness .","... According to the medical statement provided by the Gikalo hospital , on DATE medical assistance had been provided to PERSON [ the second applicant ] as no [ other ] treatment had been possible at the time owing to the military actions ...","... According to the forensic medical examination report no . CARDINAL of DATE ... no bodily injuries or spots on the head or neck of PERSON [ the second applicant ] were found ...","Thus , the investigation did not establish that PERSON had received bodily injuries ... \u201d","For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103151","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2011,"docname":"CASE OF METALCO BT. v. HUNGARY","importance":3,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria","text":["The applicant is a limited partnership under liquidation , with its seat in GPE .","In DATE ORG established that the applicant owed MONEY ( ORG ) in outstanding taxes . To secure this claim , on DATE it attached a CARDINAL%-share the applicant had in another company , which was nominally worth over ORG CARDINAL . Aware of the applicant \u2019s own intention to sell the share by DATE , ORG forbade the transaction but did not proceed to auctioning it within the statutory DATE deadline or afterwards .","In the ensuing DATE administrative procedure , the applicant \u2019s tax debt was eventually cancelled and the asset unfrozen . However , by that time the company in which the share belonged had been liquidated \u2013 as of DATE \u2013 and the share had lost its value altogether .","NORP Some time in DATE the applicant sued ORG for damages . On DATE the Baranya County Regional Court awarded it ORG CARDINAL . On DATE ORG quashed this decision . On DATE ORG again found for the plaintiff .","On appeal , on DATE ORG reversed this judgment and rejected the applicant \u2019s action . It held in essence that there had been no causal link between ORG unlawful omission to hold an auction to sell the attached asset within DATE from its attachment , as required by section CARDINAL(CARDINAL ) of the Enforcement Act DATE , and the damage the plaintiff had sustained . In the court \u2019s view , the burden of proof to show that had there been a timely auction the share could have successfully been sold to a buyer with the requisite liquidity lay with the applicant . However , the applicant could not prove this assertion . The court observed that the buyer suggested by the applicant had never had , according to its books , the capital needed for the acquisition ; that the company in which the share belonged had lost all its own capital by DATE and been in liquidation as of DATE ; and that its manager had been convicted of fraudulent bankruptcy .","On DATE ORG dismissed the applicant \u2019s petition for review . This decision was served on DATE . The applicant \u2019s request for a re - opening was to no avail ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101107","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2010,"docname":"NIKOLOV v. BULGARIA (V)","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Ms N. Milanova , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was attacked in his home in the village of GPE by CARDINAL individuals who beat him with a baseball bat , took his money and ran away . He lost consciousness and suffered CARDINAL fractured ribs and injuries to his chest and lungs .","The police were immediately called to the scene but failed to apprehend the attackers . A preliminary investigation was then opened and , on an unspecified date , CARDINAL suspects were arrested .","On DATE the applicant filed a request with the investigating authorities under LAW to join the criminal proceedings as a civil claimant and made a claim for compensation from the assailants in the amount of MONEY ( MONEY ) .","On DATE the assailants were charged with burglary and theft .","On DATE the prosecuting authorities and the assailants concluded a plea - bargain agreement which was approved by ORG on DATE . Under the terms of the agreement , the assailants pled guilty to burglary and theft and were sentenced to DATE imprisonment , suspended for DATE . The court did not examine the applicant 's civil claim and failed to indicate whether any of the damage caused by the offence had been compensated in any way .","At the relevant time , the victim of any tort which was also a publicly prosecutable offence could choose either to initiate a civil action against the alleged tortfeasor , which would then be stayed awaiting the outcome of the pending criminal proceedings ( LAW ( d ) of LAW DATE ) , or to file a civil claim for damages in the context of the criminal proceedings instituted by the prosecuting authorities ( Articles CARDINAL of LAW of DATE ) . In the latter case , the civil claim was examined together with the offender 's culpability but could not be a reason for delaying the criminal case as such ( LAW and CARDINAL of LAW of DATE ) . If the criminal proceedings were terminated , the civil claim was not to be examined but could be submitted to the civil courts ( LAW ) .","Prior to DATE a civil claim could be filed in the context of the criminal proceedings at any time after the criminal proceedings had been opened . Subsequently , it could only be filed once the case had been brought to trial . However , civil claims that had been filed before the amendment entered into force were to be examined under the old procedure ( paragraph CARDINAL of the transitory provisions to the LAW amending LAW of DATE ) .","In a decision of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u043a\u043e\u043d\u0441\u0442\u0438\u0442\u0443\u0446\u0438\u043e\u043d\u043d\u043e \u0434\u0435\u043b\u043e \u2116 DATE \u0433. , \u043e\u0431\u043d. , GPE , \u0431\u0440. CARDINAL \u0433. ) ORG held that the amendment of DATE struck a fair balance between victims ' rights and the public interest in more efficient , faster , and yet fair criminal proceedings . It noted that the joining of civil claims to criminal proceedings was an optional procedure aimed at assisting victims but that criminal courts were not obliged to admit such claims for examination if this could delay the criminal proceedings . It further emphasised that victims were entitled to bring an action before civil courts at any time .","At the relevant time , a plea - bargain agreement could be concluded after the preliminary investigation had been finished ( LAW ) .","If pecuniary damage had been caused by the offence , an agreement could be concluded only after the damage had been compensated or adequate security had been provided to the victim ( LAW of LAW of DATE ) .","A plea - bargain agreement was subject to approval by the domestic court , which would then conclude the criminal proceeding with a decision . The decision had the force of a final judgment and was not subject to appeal ( LAW and Article CARDINALh \u00a7 CARDINAL of the Code of Criminal Procedure of DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68089","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2004,"docname":"CIFTCI v. TURKEY","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr H. GPE , a lawyer practising in GPE .","In a letter of DATE to ORG ( \u201c the GPE \u201d ) the applicant complained that under domestic legislation , anyone attending PERSON study classes had to be DATE ( at the material time that was the normal primary - school leaving age ) . As his son did not satisfy that requirement , the applicant requested dispensation to enrol him in religious - study classes of that kind . In his letter the applicant also referred to Articles CARDINAL and CARDINAL of the Convention .","In a letter of CARDINAL DATE the ORG replied that section CARDINAL of Law no . DATE required students enrolling in such classes to have obtained the primary - school leaving certificate and refused the applicant 's request .","Section CARDINAL of Law no . DATE , supplementing ORG ( Law no . CARDINAL ) , provides :","\u201c ORG shall afford those wishing to learn about the Koran and its interpretation and to increase their knowledge of religion the opportunity to attend Koranic study classes , outside the compulsory religious - education lessons at primary and secondary schools , provided that they have obtained the primary - school leaving certificate . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84110","languageisocode":"ENG","respondent":"MKD","branch":"CHAMBER","date":2007,"docname":"CASE OF NIKOLOV v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant , a farmer who reared cows , concluded an insurance agreement ( \u043f\u043e\u043b\u0438\u0441\u0430 \u0437\u0430 \u043e\u0441\u0438\u0433\u0443\u0440\u0443\u0432\u0430\u045a\u0435 ) ( \u201c the agreement \u201d ) with an insurance company ( \u201c the defendant \u201d ) against a risk of the cows ' death under which the latter would be liable to pay the damage , irrespective of the time of the death , if it was caused by reasons other than illness . On DATE CARDINAL of the applicant 's cows died . Since the defendant refused to pay for the loss , on DATE the applicant brought a claim against the defendant before ORG ( \u201c the first - instance court \u201d ) .","On DATE the trial judge 's wife was employed with the defendant as an assistant to the manager of its branch office .","On DATE the first - instance court dismissed the applicant 's claim .","The applicant appealed , arguing , amongst other things , that the first - instance court had arbitrarily given weight to evidence in favour of the defendant and that it had refused to examine witnesses as to the cause of death .","On DATE ORG quashed the court of first instance 's decision , instructing it to hear evidence from the vet who had examined the cow in order to determine the cause of the death .","On DATE the first - instance court dismissed the applicant 's claim , reiterating its earlier findings .","On DATE the applicant appealed , arguing that he had never received a copy of the general terms of the contract , and that the cause of death had not been properly established . He also contended that that judge was biased since his wife had started working with the defendant just after the proceedings had started . He asked for the trial judge to be removed if ORG were to quash the lower court 's decision and remit the case","On DATE ORG dismissed the applicant 's appeal , finding no grounds to depart from the established facts and the reasons given by the lower court . It did not make any comments on the applicant 's allegations that the trial judge was biased .","The decision was served on the applicant on DATE .","The relevant provisions of the then LAW ( ORG \u0437\u0430 \u043f\u0430\u0440\u043d\u0438\u0447\u043d\u0430\u0442\u0430 \u043f\u043e\u0441\u0442\u0430\u043f\u043a\u0430 ) provided as follows :","\u201c A judge or a lay - judge can not perform his\/ her judicial function if :","he\/ she is a party , a statutory representative or a counsel of a party ... ;","he\/ she is permanently or temporary employed by a party to the proceedings ;","the party or its counsel is his\/ her relative ... ;","he\/ she is a custodian , an adoptive parent , an adoptive child ... of a party ;","he\/ she participated in the rendering of any decision by a lower court or another body ; and","there are other grounds which cast doubts to his \/ her impartiality . \u201d","Section CARDINAL \u00a7 CARDINAL","\u201c A judge who considers that there are other grounds which put his \/ her impartiality under doubt should give notice to the President of the court who will decide on his \/ her exclusion . \u201d","Section CARDINAL \u00a7 \u00a7 CARDINAL , CARDINAL , CARDINAL","\u201c The parties may also challenge the participation of a judge . The party concerned is obliged to challenge ( \u0438\u0437\u0437\u0435\u043c\u0430\u045a\u0435 ) a trial judge or a lay - judge as soon as it learns about it , but not later than the end of the trial before the first - instance court i.e. until the adoption of the decision . The party concerned is obliged to provide the reasons for challenging a judge 's ability to sit in a case . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58085","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1997,"docname":"CASE OF DE HAAN v. THE NETHERLANDS","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"","text":["The applicant , Ms PERSON , is a GPE national born in DATE and resident in PERSON .","She worked at a dry cleaner \u2019s from DATE . In DATE she started to develop physical complaints which caused her to take sick - leave for DATE at a time . It was alleged that these complaints were caused by chemical substances used in dry cleaning .","While she was not at work the applicant enjoyed sick - pay from ORG ( Bedrijfsvereniging voor de Chemische Industrie ) under LAW ( ziektewet ) .","By a letter of CARDINAL DATE ORG informed the applicant that according to the information at their disposal she was no longer unfit for work , and that accordingly her entitlement to sick - pay would be terminated with retrospective effect from DATE","The applicant lodged an appeal with ORG ( PERSON ORG ) on CARDINAL DATE . On DATE she filed an additional statement setting out her grounds of appeal .","The Appeals Tribunal followed the simplified procedure known as the permanent - medical - expert procedure ( vaste deskundige procedure \u2013 see paragraphs CARDINAL\u2013CARDINAL below ) .","On DATE the applicant was examined by a permanent medical expert ( vaste deskundige ) attached to ORG \u2013 a general practitioner .","On DATE the acting president of ORG , Judge PERSON , dismissed the appeal .","This decision , which was typed on a pre - printed form , contained the following reasoning :","\u201c In his opinion , which was received at the registry of ORG on DATE , the expert reached the conclusion that on and after the date to which the decision appealed against relates the applicant was not unfit for work ...","ORG considers that it should accept this opinion .","In view of this opinion , as well as the other documents contained in the case file , it must be held that in the decision appealed against the respondent authority acted correctly in deciding to discontinue the applicant \u2019s sick - pay . \u201d","On CARDINAL DATE the applicant filed an objection ( verzet ) . This caused the decision of the president to lapse provisionally ( section CARDINAL ( CARDINAL ) of LAW \u2013 see paragraph CARDINAL below ) .","She filed a statement of the grounds on which her objection was based on DATE . The grounds of her objection went to the merits of the case .","The applicant received an invitation to take part in a hearing set for CARDINAL DATE .","By a letter of CARDINAL DATE addressed to Judge PERSON , the applicant \u2019s lawyer stated that he had learnt that Judge PERSON would officiate as president of ORG constituted to hear the case and announced his intention of challenging him .","At the hearing the applicant \u2019s lawyer submitted a written note dated DATE before requesting that Judge PERSON withdraw and , in the alternative , challenging him . It was not alleged that Judge PERSON was subjectively biased , but doubts were expressed as to his objective impartiality in view of the fact that he had given a decision in the case earlier , based on evidence contained in the case file .","The Chamber of the Appeals Tribunal withdrew to consider the applicant \u2019s challenge in camera . The discussion was presided over by a judge who was not a member of the ORG ( section CARDINAL of LAW \u2013 see paragraph CARDINAL below ) .","Judge PERSON did not withdraw . It was decided to reject the challenge , pursuant to the internal policy of ORG ( see paragraph CARDINAL below ) .","ORG thereafter resumed the hearing in the same composition .","On DATE DATE ORG held the objection to be unfounded .","The applicant filed a further appeal ( hoger beroep ) to ORG ( Centrale PERSON GPE ) on DATE .","Relying specifically on LAW , she complained about the rejection by ORG of her challenge of Judge PERSON , stating that the latter had lacked objective impartiality . She asked that the case be referred back to ORG for a rehearing ( see paragraph CARDINAL below ) under the presidency of a different judge .","As an alternative submission , she asked that her entitlement to sick - pay after CARDINAL DATE be recognised .","ORG rejected the applicant \u2019s further appeal on DATE .","In so far as its judgment concerned the applicant \u2019s challenge of Judge PERSON , it referred to another judgment delivered DATE in which the same problem of functional impartiality was addressed .","That judgment contained the following reasoning :","\u201c ORG construes the [ relevant ] case - law of ORG ... in the sense that the possibility of a violation of the guarantee of judicial impartiality is accepted if the judge participating in the determination of the legal question in the principal proceedings [ hoofdgeding ] has been involved in preparatory decisions which were independent in nature and had a purport of their own , and which generally fall to be taken on the basis of a global or provisional view of the main issue in the principal proceedings and which in general can not be reconsidered when the main issue is dealt with .","The procedure according to LAW , as called into question by the applicant , concerns a judge who , within a single instance on appeal , within the framework of continuous judicial construction [ rechtsvinding ] in the stage before as well as after the objection , which , if filed in due time , causes the preceding decision to lapse in accordance with section CARDINAL [ of LAW ] , is involved in a decision with the same purport , given in relation to the same legal question and on the basis of the same standards .","In view of these essential differences ORG is of the opinion that no violation of judicial impartiality can be found on the basis of the criteria which may be deduced from the above - mentioned case - law of ORG . ORG will not address the question whether the ORG \u2019s case - law , which has been formed in the field of criminal law , may be transposed to other fields of law without further ado . \u201d","The following is a rendering of the relevant domestic law and practice at the time of the events complained of .","The Health Insurance Act sets up an insurance scheme which is compulsory for all employees ( section CARDINAL ) . Under this scheme , an employee has a right to sick - pay in the event of inability to perform his or her work due to illness , pregnancy or disability ( section CARDINAL ) . In the event of illness or disability the employee may receive sick - pay for a period of up to DATE ( section CARDINAL ( CARDINAL ) ) . Provision for illness or disability continuing beyond this period was made under a different Act , ORG ( Wet op de arbeidsongeschiktheidsverzekering ) , which is not relevant to the present case .","Pursuant to section CARDINAL of ORG ( Organisatiewet sociale verzekeringen ) it falls to the occupational associations to implement certain social - security legislation , including LAW .","CARDINAL occupational association exists for each of the various sectors of economic life . An occupational association is an association ( vereniging ) under private law set up by ORG and employees\u2019 organisations considered by ORG ( Minister PERSON PERSON en GPE ) to be sufficiently representative of the sector concerned ; its purpose is defined as being to implement the relevant social - security legislation , it must be a non - profit - making body and its statutes must satisfy certain requirements ( section CARDINAL ( CARDINAL ) of ORG ) .","An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs ( section CARDINAL ( CARDINAL ) of ORG ) .","The Appeals Tribunals \u2013 which have in the meanwhile been abolished ( see paragraph CARDINAL below ) \u2013 were the judicial bodies with jurisdiction to rule at first instance on disputes concerning most social- security legislation , including ORG ( at the relevant time , section CARDINAL of ORG ) .","A Chamber of an Appeals Tribunal comprised CARDINAL members . Its president was always a judge appointed for life : the president of ORG concerned or a vice - president or acting president ( sections CARDINAL and CARDINAL ( CARDINAL ) of LAW ) . The other CARDINAL members were appointed for DATE by the Minister of ORG , from lists of persons put forward by organisations of employers and employees ( sections CARDINAL and CARDINAL ) .","NORP In addition , ORG had a number of permanent medical experts at its disposal . These were physicians ( section CARDINAL of LAW ) . They were appointed for DATE at a time by the Minister of ORG ( section CARDINAL ( CARDINAL ) ) . Upon appointment , they swore that they would report according to their conscience ( section CARDINAL ) . They were not allowed to be connected to any organisation concerned with social - security matters , or to act as permanent medical experts in cases in which they had previously been involved in another capacity ( section CARDINAL ) .","In the event of a dispute between an occupational association and an employee with regard to the latter \u2019s fitness for work , the permanent - medical - expert procedure provided for by LAW was followed ( section DATE CARDINAL ) of ORG ) .","When an appeal was lodged against a decision of an occupational association concerning an employee \u2019s fitness for work , the president of ORG appointed a permanent medical expert ( section CARDINAL of LAW ) . The registry of ORG informed the occupational association in question of the lodging of the appeal ; the occupational association was then required to submit the relevant documents in its possession , normally within DATE ( section CARDINAL ) . These were included in the case file , which was then forwarded to the permanent medical expert .","The permanent medical expert was required to consult the physician who had examined the appellant on behalf of the occupational association and the physician who had treated the appellant , unless it appeared from the case file that their opinions corresponded to his own ; he also examined the appellant ( section CARDINAL ) .","He then drew up an opinion which he submitted to the president of ORG ( section CARDINAL ) .","The president of ORG , or an acting president as the case might be , gave a reasoned decision which was pronounced in public ( section CARDINAL ) .","Both the appellant and the occupational association could file an objection with ORG against the decision of the president ( section CARDINAL ( CARDINAL ) of LAW ) .","As a consequence of the filing of such an objection , the decision objected against lapsed unless the objection was eventually held to be inadmissible or unfounded ( section CARDINAL ( CARDINAL ) ) .","Before the ORG \u2019s judgment in the case of ORG v. the GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) , such an objection could only be based on certain formal grounds ( ibid . , p. CARDINAL , \u00a7 CARDINAL ) .","After that judgment the presidents of ORG established a policy guideline pursuant to which appellants were informed that they could file an objection on any grounds desired ( Nederlands ORG DATE , p. CARDINAL ) .","The objection proceedings involved a hearing in camera before a Chamber of the Appeals Tribunal ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .","A decision dismissing the objection had to be reasoned ( section CARDINAL ( CARDINAL ) ) .","Pursuant to section CARDINAL ( CARDINAL ) of LAW , a party to proceedings before an ORG was entitled to challenge a member of the ORG called upon to hear the case \u201c on the ground of facts or circumstances which might prevent [ the member concerned from forming ] an impartial opinion \u201d ( die een onpartijdig QUANTITY kunnen belemmeren ) . A member of the ORG was entitled to withdraw for the same reason ( section CARDINAL ( CARDINAL ) ) .","After a hearing of the party concerned , the challenge was decided on in camera by the other members of the ORG , chaired by the president of ORG or his or her deputy . No appeal lay against the ensuing decision ( section CARDINAL ( CARDINAL ) of LAW ) .","It appears from the decision in the present case ( see paragraph CARDINAL above ) that ORG had an internal policy under which objections against decisions which had lapsed as a result of the filing of the objection were normally dealt with under the presidency of the acting president who had given the original decision unless no further appeal was possible .","ORG was , and is , composed entirely of judges appointed for life ( section CARDINAL of LAW ) . At the relevant time it always sat in NORP of CARDINAL ( section CARDINAL ) . Its hearings are public ( section CARDINAL ) .","A further appeal against the decision or judgment of an Appeals Tribunal lay to ORG , unless the law provided otherwise ( section CARDINAL of LAW ) .","The procedure normally involved a complete re - examination of the case , including a hearing ( section CARDINAL ) . ORG could confirm the decision of ORG , with different reasoning if necessary , or do what ORG ought to have done ( section CARDINAL ) ; it could also refer the case back to ORG if it saw fit ( section CARDINAL ) .","However , according to section CARDINAL ( CARDINAL ) of ORG , no appeal lay against a decision given by ORG in objection proceedings such as those in issue .","In its judgment of CARDINAL DATE ( PERSON ( Social Security Law Reports , ORG ) DATE , no . CARDINAL ) ORG nevertheless opened the possibility of a further appeal in such cases if it appeared that rules of a formal nature had not been followed , if incorrect standards had been applied , or to the extent that the decision appealed against was unreasonable .","The General Administrative Law Act entered into force on DATE .","It replaced ORG by administrative - law divisions of ORG ( arrondissementsrechtbanken ) .","An employee who does not wish to accept the decision of an occupational association concerning his or her fitness for work may file an objection ( bezwaarschrift ) to that body ( section CARDINAL of LAW ) .","An appeal lies to ORG ( section CARDINAL:CARDINAL ) . ORG may appoint a medical expert to examine the appellant ( section TIME ( CARDINAL ) ) . It must hold a hearing , unless the parties to the case waive their right to be heard ( sections CARDINAL and CARDINAL:CARDINAL ) .","A further appeal lies to ORG ( section CARDINAL of LAW , as amended ) . The restrictions set out in paragraph CARDINAL above no longer apply ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58807","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2000,"docname":"CASE OF OLDHAM v. THE UNITED KINGDOM","importance":1,"conclusion":"Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["NORP In DATE the applicant , then aged DATE , was convicted of manslaughter , qualified as such on the grounds of diminished responsibility , and sentenced to life imprisonment . Medical evidence adduced at the trial showed that the applicant suffered from a mental abnormality induced by alcohol .","On DATE the applicant was released on life licence for the third time subject to the condition , amongst others , that he should comply with any reasonable requirement imposed by his probation officer for the treatment of his alcohol problem . He had been recalled to prison twice previously and had since been transferred to open prison conditions in DATE .","On DATE the police were called to the home of the applicant 's partner , PERSON , who is a deaf mute . She was taken to hospital where she received treatment for injuries to her face and back .","On DATE the Secretary of ORG revoked the applicant 's licence and recalled him to prison . By a letter dated DATE , the Secretary of ORG indicated that the licence was revoked on the grounds that the applicant had caused PERSON 's injuries after drinking CARDINAL cans of lager . This was so stated in the report by the applicant 's probation officer who had met with PERSON on DATE . The case was referred to ORG which confirmed the revocation of the applicant 's licence on DATE .","On DATE ORG Discretionary Lifer Panel ( \u201c the ORG \u201d ) , chaired by a ORG judge , met to consider the applicant 's representations against recall . It considered the applicant 's written and oral representations , the views of CARDINAL probation officers , the oral evidence of PERSON and the submissions of the applicant 's solicitor and counsel for the Secretary of ORG .","In her oral evidence PERSON gave evidence to the effect that it had been she and not the applicant who had been responsible for her injuries . A prison officer , who had attained a stage CARDINAL NORP Sign Language qualification and was training towards stage CARDINAL , attended the hearing and acted as interpreter for M.","In its written decision of CARDINAL DATE the ORG stated , in its reasons for rejecting the applicant 's representations , that it had accepted the evidence which indicated that the applicant had been responsible for PERSON 's injuries , rather than the account put forward on behalf of the applicant . It expressed the opinion that , in order to minimise the risk posed by the applicant to members of the public , the applicant needed to carry out further work in respect of alcohol , anger and relationships . This was communicated to the applicant in a letter dated DATE by the Secretary of ORG , who informed the applicant that his next ORG review was set for DATE .","The applicant and PERSON married in prison on DATE .","The applicant applied for legal aid to challenge the ORG 's decision by judicial review . On appeal , legal aid was granted for the limited purpose of seeking further evidence and counsel 's opinion . On DATE , counsel advised that an application for judicial review would be unsuccessful and legal aid was not extended .","While in prison , the applicant attended courses in anger management , relationships , alcohol awareness and men and violence run by ORG . These had been completed within DATE of his recall .","On DATE the applicant had a further hearing before the ORG . Despite expressing some reservations , the ORG concluded that the applicant had made significant and sufficient progress since his previous review and recommended to the Secretary of ORG that he be released on licence . The applicant was released on DATE .","Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty 's pleasure have a \u201c tariff \u201d set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change , most notably following the coming into force on DATE of LAW DATE ( \u201c the DATE LAW ) , which was in force at the relevant time . ( The provisions of the DATE Act were replaced by ORG \u201c the DATE LAW ) from DATE . )","Section CARDINAL of the DATE Act allowed the Secretary of ORG to revoke a discretionary life prisoner 's licence where it appeared to be expedient in the public interest to recall him to prison . Once recalled , the prisoner had to be informed of the reasons for his recall and could make representations in writing .","According to section CARDINAL(CARDINAL ) of the DATE Act , ORG had a duty to advise the Secretary of ORG with respect to any matter referred to it by him which was connected with the early release or recall of prisoners .","ORG chairman appointed CARDINAL members of ORG to consider discretionary life cases . They comprised the ORG . The ORG always held an oral hearing when considering whether to release a discretionary life prisoner whose tariff had expired or whether to recall a discretionary life prisoner whose licence had been revoked . It was the duty of the Secretary of ORG to release the prisoner if the ORG directed his release .","According to ORG , which came into force on DATE , a prisoner was entitled , among other things , to an oral hearing , disclosure of evidence before ORG and legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who had written reports about him . A reasoned decision by the ORG was delivered within DATE of the hearing .","When deciding under section DATE that recall should be confirmed , the ORG often gave guidance as to the timing of the next review . It normally recommended a further review in DATE but an earlier date could be given in appropriate cases , with reasons . Where no guidance was given , the Secretary of ORG decided the date of the next review . Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date , the date of the review could be brought forward .","A discretionary life prisoner may request the Secretary of ORG to refer his case to ORG after DATE beginning with the disposal of a previous reference to ORG ( section CARDINAL ) of the CARDINAL Act , now section CARDINAL(CARDINAL)(b ) of LAW ) ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90161","languageisocode":"ENG","respondent":"MKD","branch":"ADMISSIBILITY","date":2008,"docname":"BAJRAKTAROV v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":4,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG convicted the applicant of several offences and sentenced him to DATE and DATE imprisonment . The court also ordered confiscation of the proceeds gained by the applicant from the offences ( \u201c the confiscation order \u201d ) .","On DATE the then ORG of GPE partly quashed the lower court \u2019s decision since the statutory rules on time - barred prosecutions had been wrongly applied .","On DATE ORG stayed the criminal proceedings against the applicant . It did so because the public prosecutor had withdrawn the charges as the prosecution had become time - barred . It also ordered restoration of the confiscated funds to the applicant ( \u201c the restoration order \u201d ) . This decision became final on DATE .","On DATE ORG partly upheld a request by the applicant for enforcement of the restoration order . It ordered restoration of the confiscated funds , but refused to award interest because no provision for interest had been stipulated in the restoration order . The court also found that the confiscated funds had been transferred to GPE ( \u201c the Municipality \u201d ) and ultimately to the then ORG of the ORG . An appeal by the ORG was finally dismissed by a court decision of DATE . The confiscated funds were actually restored to the applicant on DATE .","On DATE the applicant brought a civil action against the Municipality and the ORG claiming interest on the funds . He claimed interest for the period between the actual confiscation of the funds and their restoration .","On DATE ORG rejected the applicant \u2019s claim as premature . It established that on CARDINAL DATE the applicant had sought compensation for wrongful conviction before the then ORG for ORG ( \u201c the ORG \u201d ) only in respect of his earnings and other rights deriving from his employment , but that he had not claimed interest on the confiscated funds . On DATE the ORG upheld that decision .","On DATE ORG allowed an appeal by the applicant on points of law and quashed the lower courts\u2019 decisions . It found that his claim should not be regarded as a request for compensation for wrongful conviction and that , accordingly , he had not been required to apply to the relevant Ministry .","On DATE ORG ruled partly in favour of the applicant , allowing his claim only in respect of unpaid interest on the national - currency funds . It dismissed his claim for statutory interest on the foreign - currency funds . It further established that the foreign currency funds had actually been restored to the applicant on DATE .","On DATE the ORG partly upheld the lower court \u2019s decision and remitted the dismissed part for reconsideration .","On DATE ORG granted a request by the public prosecutor for the protection of legality ( \u0431\u0430\u0440\u0430\u045a\u0435 \u0437\u0430 \u0437\u0430\u0448\u0442\u0438\u0442\u0430 \u043d\u0430 \u0437\u0430\u043a\u043e\u043d\u0438\u0442\u043e\u0441\u0442\u0430 ) and quashed the lower courts\u2019 decisions . It found that they had wrongly applied the national law by awarding double interest on the foreign currency funds .","On DATE ORG , after having obtained an expert report , upheld the applicant \u2019s claim and ordered GPE to pay him interest on the confiscated funds .","On DATE the applicant requested ORG to enforce that decision . On DATE the latter ordered ORG ( \u0417\u0430\u0432\u043e\u0434 \u0437\u0430 PERSON ) to transfer the award to the applicant \u2019s account .","On DATE ORG quashed the lower courts\u2019 decisions and ordered a retrial . It found that they had incorrectly applied the civil - law rules on compensation instead of the provisions of LAW concerning wrongful convictions .","On DATE ORG Instance dismissed the applicant \u2019s claim in respect of the Municipality and declared it inadmissible in respect of the State . The court found that the applicant had failed to submit his claim to the ORG and that , accordingly , he had not been entitled to claim compensation on that ground in the civil proceedings .","On DATE ORG allowed an appeal by the applicant and remitted the case for re - examination .","On DATE ORG Instance dismissed the applicant \u2019s claim . It found that ORG had not pardoned the applicant or overturned his conviction on the merits , but had quashed it solely because of the time bar . The court therefore concluded that the applicant had not been wrongly convicted and that , consequently , the ORG had not been liable to pay any damages .","On DATE the ORG allowed an appeal by the applicant and ordered a retrial . It held that his claim should not be considered under the rules for wrongful conviction , but as a civil compensation claim .","On DATE the President of ORG refused a request by the applicant for exclusion of the judge sitting in his case .","On DATE ORG Instance dismissed the applicant \u2019s claim . It established that the applicant \u2019s compensation claim for interest in respect of his wrongful conviction had been submitted to the ORG out of time . It held , inter alia , as follows :","\u201c ... the court finds that the applicant \u2019s compensation claim concerns unpaid interest on confiscated funds ... since the legal ground of that claim is the confiscation of the funds , as a security measure issued within the criminal proceedings , the case is to be analysed under the rules on compensation for wrongful conviction and detention ... Under section CARDINAL(CARDINAL ) of LAW , a plaintiff [ the applicant ] can claim compensation before the authorised ORG body and is entitled to receive compensation within DATE on which a decision staying the proceedings becomes final . In the instant case the decision of PERCENT , by which the criminal proceedings ... were stayed , was served on the applicant on DATE and became final on DATE . On DATE the plaintiff submitted his claim for unpaid interest on the confiscated funds to the ORG for ORG . On DATE the latter instructed the plaintiff to submit his claim to the court of competent jurisdiction . It transpires that the deadline for the plaintiff \u2019s claim was DATE . The application lodged on DATE was therefore time - barred ... \u201d","The court further found that the funds had been confiscated in lawful judicial proceedings . ORG of GPE had neither pardoned the applicant nor found substantial procedural deficiencies . It had quashed the applicant \u2019s conviction merely because of the time bar . The court therefore went on to conclude that the ORG could not be held liable for damage sustained by the applicant . On DATE ORG dismissed an appeal by the applicant in which he had , inter alia , expressed doubts about the impartiality of the first - instance court judge .","In DATE the applicant lodged an appeal with ORG in which he restated his arguments that his claim should be considered under the civil - law rules on compensation .","On DATE the public prosecutor submitted observations to ORG supporting in part the applicant \u2019s appeal related to his claim against the ORG . It stated that interest should be calculated as of DATE when the restoration order had become final until restoration actually occurred .","On DATE ORG dismissed the appeal by the applicant on points of law and upheld the lower courts\u2019 findings that the damage had derived from the criminal proceedings and that , accordingly , compensation should have been sought under the rules related to wrongful conviction . This decision was served on the applicant on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5130","languageisocode":"ENG","respondent":"CYP","branch":"ADMISSIBILITY","date":2000,"docname":"NICHOLAS v. CYPRUS","importance":3,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and living in GPE .","He is represented before the ORG by PERSON , a lawyer practising in GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","ORG Recourse No . CARDINAL\/CARDINAL before ORG","On DATE the applicant applied to ORG for a declaration that ORG and ORG , the major shareholder of that company , had breached the LAW in refusing to employ him and employing others instead ( recourse No . CARDINAL\/CARDINAL ) .","On DATE the applicant asked the Chief Registrar of ORG whether legal aid was available for actions alleging infringement of constitutional rights , such as recourse No . CARDINAL\/CARDINAL . On DATE the Chief Registrar informed the applicant that \u201c legal aid is not available for civil cases \u201d .","The applicant represented himself in the proceedings .","On DATE ORG rejected the applicant \u2019s recourse as inadmissible . The court found that ORG was in every respect a private company . As a result , its decisions did not fall within the ambit of LAW . The refusal to employ the applicant was , therefore , wrongly challenged by means of a recourse to ORG .","II . Case No . CARDINAL before ORG","In DATE the applicant instituted proceedings before ORG seeking the annulment of ORG decision to issue work permits to CARDINAL foreign pilots employed by ORG , a subsidiary of ORG ( case No . CARDINAL\/CARDINAL ) . On DATE ORG found in favour of the applicant .","Relying on the above decision , the applicant instituted proceedings before ORG for damages against the Government ( case No . CARDINAL\/CARDINAL ) . He was represented by counsel who acted on a \u201c no fee \u201d basis . On DATE the court rejected the action .","The applicant \u2019s counsel lodged an appeal . The proceedings are still pending .","III . Case No . CARDINAL before ORG","On DATE the newspaper Alithia published a letter by ORG worded as follows :","\u201c With reference to your article in connection with PERSON , we confirm once again that our intention is to \u2018 Cypriotise\u2019 [ give priority to NORP employees ] as soon as possible . Within the bounds of safety and operations of the company , for us to achieve this aim , the recruitment of suitable , qualified pilots is an absolute necessity . \u2026 We have offered employment without exception to each and every qualified suitable NORP pilot who has applied and DATE we employ CARDINAL such pilots \u2026 . The recruitment of ab initio NORP pilots has already commenced and we will continue this policy until all the foreigners in our company are replaced . With regard to Mr PERSON 's specific case , the reasons he was not selected are known to both himself and the Government agencies concerned through correspondence dating from DATE . As for the rest it is against our policy to discuss individual cases in the press \u201d .","On DATE the applicant instituted proceedings for defamation against ORG before ORG ( Case No . CARDINAL\/CARDINAL ) . He alleged that it transpired from the publication in question that","( a ) he was an unqualified and inexperienced pilot and not suitable to fly aircrafts ,","( b ) he was so incompetent and\/or had such disadvantages as a person and as a professional so as to jeopardise the safety of the flights and the operation of the company , or any other airline company ,","( c ) he was not selected for employment , not because there were other persons more qualified than him , but because he was totally useless and\/or incompetent and\/or an ignorant professional pilot and","( d ) he was generally a dangerous and suspicious person and could not be trusted .","The applicant applied for damages and an injunction preventing the defendants from continuing to publish defamatory statements . The applicant was represented by counsel .","A hearing was fixed for DATE . On that date the applicant failed to appear and the court dismissed the action .","On DATE the applicant \u2019s counsel asked for the reinstatement of the action . On DATE the action was reinstated . A hearing was fixed for DATE . It was adjourned on several occasions .","On DATE the applicant informed his lawyer , PERSON , that he did not exclude the possibility of engaging the services of another lawyer . On DATE Mr K informed the applicant that he was no longer able to represent him . The lawyer invited the applicant to collect the file so he could prepare his case himself . He stated that \u201c no fees ( were ) expected to be paid by ( the applicant ) \u201d .","After Mr K \u2019s withdrawal the applicant sent a number of faxes to the court \u2019s registry asking for the case to be adjourned . On DATE Mr E , in whose chambers PERSON used to work , appeared before the court on behalf of the applicant and asked for an adjournment . The court adjourned the hearing of the case until DATE .","On DATE none of the parties appeared and the court dismissed the action .","On DATE Mr E wrote a letter to the applicant \u2019s representatives before the ORG to the effect that his firm had agreed to represent the applicant \u201c on a no fee basis \u201d , that Mr K had withdrawn from the case because he had been appointed a judge and that the case \u201c had a very good chance of success if handled properly \u201d .","B. Relevant domestic law","The law on defamation in GPE is found in sections CARDINAL to CARDINAL of LAW . The following principles transpire from the case - law :","\u201c In accordance with the principles of legal interpretation applied in GPE , expressions used in ( LAW ) shall be presumed so far as they are consistent with their context and except as may be otherwise expressly provided to be used with the meaning attaching to them in LANGUAGE PERSON and shall be construed in accordance therewith . \u2026 Time and again it was said that the gist of the torts of libel and slander is the publication of words conveying a defamatory imputation . A defamatory imputation is one to a man 's discredit , or which tends to lower him in the estimation of others , or to expose him to hatred , contempt or ridicule , or to injure his reputation in his office , trade or profession or to injure his financial credit . The standard of opinion is that of right - thinking persons generally . \u201d ( ORG of Cyprus in PERSON and Sons , ( DATE ) CARDINAL ORG pp . CARDINAL and CARDINAL )","\u201c The meaning of words in a libel case is not a matter of construction as a lawyer construes a contract . It is a matter of the impression an ordinary person gets on a first reading not on a later analysis . \u201d ( PERSON v. Daily Telegraph Ltd. ( DATE ) CARDINAL All GPE p. CARDINAL )","\u201c An innuendo properly so called which is an allegation that words were used in a defamatory sense other than their ordinary meaning and which provides a separate cause of action must be supported by extrinsic facts or matters and can not be found only on interpretation , because if the words bear the interpretation imputed to them they are defamatory in their natural and ordinary meaning . \u201d ( ORG v. ORG ( DATE ) CARDINAL All ORG p. CARDINAL )","According to a letter addressed to the applicant by ORG on DATE , ORG confirmed that \u201c legal aid ( was ) not available in civil cases . Despite the fact that LAW provides that every person has the right to have free legal assistance where the interests of justice so require and as provided by law , such a law has not as yet been introduced \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104907","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2011,"docname":"CASE OF MORK v. GERMANY","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 5-1","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre","text":["The applicant was born in DATE and is currently detained in FAC .","DATE the applicant was convicted , among other offences , of numerous counts of joint burglary committed in companies and shops and was imprisoned from DATE until DATE .","In DATE ORG convicted the applicant of trafficking in drugs ( hashish and cocaine ) and sentenced him to DATE imprisonment . The applicant was in pre - trial detention and served his sentence from DATE until DATE .","NORP In DATE the applicant was arrested and placed in pre - trial detention on suspicion of drug trafficking ; he has remained in prison since then .","In a judgment dated CARDINAL DATE ORG convicted the applicant of unauthorised importing of drugs and of drug trafficking committed in DATE and involving QUANTITY of hashish . It sentenced him to DATE and CARDINAL months\u2019 imprisonment . It decided not to order the applicant \u2019s preventive detention under LAW ( see paragraphs CARDINAL below ) as it was not convinced that the applicant was dangerous to the public owing to a disposition to commit serious offences . In this assessment , the court took into consideration that the applicant had not attempted to avert his punishment by lodging numerous procedural motions and had agreed to the forfeiture of money stemming from drug trafficking . The applicant claimed that he had struck a deal with ORG on the latter \u2019s proposal that the court would impose a sentence of DATE and would not order his preventive detention if he ceased to contest the court \u2019s finding of fact . The Government submitted that there was no indication in the case - file that such an agreement had been made .","In a judgment dated DATE ORG dismissed an appeal by the applicant on points of law . It allowed an appeal by the prosecution regarding ORG decision not to order the applicant \u2019s preventive detention and quashed the judgment in this respect as ORG had not given valid reasons for considering the applicant not to be dangerous to the public .","In a judgment dated DATE a different chamber of ORG ordered the applicant \u2019s ( first ) indefinite preventive detention pursuant to LAW . Having consulted a psychiatric expert and having regard to the applicant \u2019s personality and his previous convictions , the court considered that the applicant had a disposition to commit serious offences , was likely to commit further serious drug offences and was thus dangerous to the public .","NORP In a decision dated DATE ORG dismissed as ill - founded an appeal by the applicant on points of law , in which the latter had complained that provisions of substantive law had not been complied with ( allgemeine Sachr\u00fcge ) .","On DATE the applicant , without being represented by counsel , lodged a constitutional complaint with ORG against the CARDINAL judgments of ORG and the judgment and the decision of ORG . He complained , in particular , that preventive detention was incompatible with his right to liberty under LAW , which did not cover such a preventive measure . It further violated the prohibition of retrospective punishment under LAW because it was incompatible with the principle of legal certainty and because his preventive detention had been ordered without a maximum duration of DATE , which had been the maximum penalty at the time he committed his offences . Furthermore , his right to a fair trial had been breached in that the domestic courts had not subsequently respected the deal struck with ORG that he would not further contest the court \u2019s finding of facts in exchange for the court not ordering his preventive detention .","On DATE ORG declined to consider the applicant \u2019s constitutional complaint ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) . ORG found that in so far as the applicant complained about the judgment of ORG of DATE and that of ORG of DATE , he had lodged his constitutional complaint out of time . In so far as the applicant complained that ORG order for his preventive detention in its judgment of DATE lacked a valid legal basis and was arbitrary , his complaint was inadmissible for non - exhaustion of domestic remedies . The court found that the applicant had failed to submit his statement of the grounds of his appeal on points of law nor had he claimed before it that he had complained about the unconstitutionality of the amended provisions on preventive detention and about their application by ORG to him before ORG , at least by complaining that provisions of substantive law had not been complied with .","On DATE the NORP ORG , acting as the court dealing with the execution of sentences , having heard the applicant in person , ordered the applicant \u2019s placement in preventive detention as of CARDINAL DATE ( Article LAW \u00a7 CARDINAL of LAW ; see paragraph CARDINAL below ) , that is , as from DATE on which the applicant would have served his full prison sentence . The court fully agreed with the findings of a psychiatric and psychotherapeutic expert it had consulted on the applicant \u2019s dangerousness . In his report dated DATE the expert , having examined the applicant , had considered that , if released , the applicant was very likely to commit further serious offences similar to those he had previously committed . He was still dangerous to the public as he had to date failed to reflect sufficiently on his numerous offences . Even assuming that the security measures taken against him by the prison authorities had not been justified , this did not alter the fact that there had not been a consistent treatment limiting the risk that he would reoffend after his release .","On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant \u2019s appeal .","On DATE the ORG rejected an objection ( NORP ) by the applicant .","On DATE the applicant lodged a constitutional complaint with ORG against ORG decision of CARDINAL DATE and ORG decision of DATE . By submissions dated DATE he extended his complaint to ORG decision of DATE . He claimed , in particular , that the order to place him in preventive detention disproportionately interfered with his right to liberty . He argued that the expert report on which the courts dealing with the execution of sentences had relied had not been drawn up in due form , that the courts had failed to give convincing reasons , in view of his mostly less serious previous convictions , why he was likely to commit further serious offences if released and that he had been refused relaxations in the conditions of his detention without convincing reasons .","On DATE ORG declined to consider the applicant \u2019s constitutional complaint ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) . It found , in particular , that the decisions of the courts dealing with the execution of sentences to order the applicant \u2019s placement in preventive detention had not violated the applicant \u2019s right to liberty . ORG found that ORG assessment that the applicant had repeatedly committed serious offences was not arbitrary as the latter had been sentenced to CARDINAL term of CARDINAL years\u2019 imprisonment and DATE . The expert report , which was of DATE , was sufficiently substantiated . In so far as the applicant had been refused relaxations in the conditions of his detention , ORG noted that the courts dealing with the execution of sentences had not based their decision to order preventive detention globally on the fact that the applicant had failed to prove that he was no longer dangerous in the course of such relaxations . If the prison authorities refused to grant the applicant relaxations in the conditions of his detention in the future , the applicant had to raise this issue with the competent lower courts first . In view of the ORG assessment that the applicant was likely to commit further serious offences if released , their finding that the interest in public safety prevailed over the applicant \u2019s right to liberty had been proportionate .","On DATE the ORG , acting as the court dealing with the execution of sentences , refused to suspend the execution of the preventive detention order against the applicant on probation . That decision was confirmed on appeal .","A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG \u2019s judgment in the case of PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) . The provisions referred to in the present case provide as follows :","The sentencing court may , at the time of the offender \u2019s conviction , order his preventive detention , a socalled measure of correction and prevention , under certain circumstances in addition to his prison sentence , a penalty , if the offender has been shown to be dangerous to the public ( LAW ) .","NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years\u2019 imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .","Article CARDINAL \u00a7 CARDINAL of LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person \u2019s preventive detention is still necessary in view of its objective . If that is not the case , it suspends on probation the execution of the preventive detention order ; supervision of the person \u2019s conduct commences with suspension .","Under Article CARDINAL \u00a7 CARDINAL of LAW , in its version in force prior to DATE , the first placement in preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY \u00a7 CARDINAL ) .","Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL \u00a7 CARDINAL , in its amended version , provided that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL \u00a7 CARDINAL of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .","Under the well - established case - law of ORG , a complainant is obliged to submit to that court , within the onemonth time - limit running from the notification of the impugned court decision , either a copy of the impugned decisions and of all documents necessary for their understanding or at least to set out their content in a manner allowing for a control of their constitutionality ( see , inter alia , the decisions of ORG of DATE , file no . DATE , Collection of the decisions of ORG ) , vol . CARDINAL ( DATE ) , pp . CARDINAL ss . , CARDINAL ; of DATE , file CARDINAL . CARDINAL BvR CARDINAL , CARDINAL and CARDINAL , CARDINAL , Collection of the decisions of ORG , vol . DATE ) , pp . CARDINAL ss . , FAC ; confirmed , for instance , by a decision of DATE , file no . CARDINAL BvR CARDINAL\/CARDINAL ) . No distinction was made in these decisions between complainants who were and those who were not represented by counsel .","On DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period ( compare the provisions in paragraphs QUANTITY - CARDINAL above ) and about the retrospective order of the ORG preventive detention respectively ( file nos . CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL and CARDINAL BvR CARDINAL\/CARDINAL ) . ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .","The Federal Constitutional Court further held that all provisions of LAW on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .","ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the most . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of \u201c persons of unsound mind \u201d in LAW sub - paragraph ( e ) of the LAW made in this ORG \u2019s case - law . If the above pre - conditions were not met , those detainees had to be released no later than DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .","In its judgment , ORG stressed that the fact that the LAW stood above the LAW in the domestic hierarchy of norms was not an obstacle to an international and NORP dialogue between the courts , but was , on the contrary , its normative basis in view of the fact that the LAW was to be interpreted in a manner that was open to public international law ( v\u00f6lkerrechtsfreundliche GPE ) . In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-139293","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2013,"docname":"A.L.F. v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"George Nicolaou;Ineta Ziemele;Ledi Bianku;P\u00e4ivi Hirvel\u00e4;Paul Mahoney;Vincent A. De Gaetano","text":["NORP The applicant , A.L.F. , is a NORP national , who was born in DATE and lives in GPE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5688","languageisocode":"ENG","respondent":"CHE","branch":"ADMISSIBILITY","date":2000,"docname":"MARTI AG, CELLERE AG, GEBR. BRUN AG and STUAG AG v. SWITZERLAND","importance":1,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicants are CARDINAL companies involved in building and construction works and registered in GPE . Before the ORG they are represented by PERSON , a layer practising in GPE ( GPE ) .","A.","ORG ( Kantonsblatt ) of the GPE of GPE published on DATE an invitation for tenders by ORG ) of the GPE of GPE in respect of \u201c preparatory work on the GPE [ motorway ] extension constructions for the north feeder \u201d . In the same issue , a further invitation for tenders was published by the GPE municipality in respect of \u201c canalisation and water construction works to be constructed in connection with the NCARDINAL extension works for the north feeder \u201d . The date for submitting the tenders was fixed for DATE . Offers had to state any construction works to be outsourced to other companies .","The applicants submitted CARDINAL tenders , i.e. for the construction of the north feeder , the canalisation and the water construction works .","On DATE the tenders were examined by the authorities . The applicants were not awarded any construction works . According to notes prepared by representatives of the applicants present upon the occasion , the tenders had been as follows :","in respect of the north feeder : of the CARDINAL tenders made , ORG had offered a lower and ORG a higher price than the applicants ;","in respect of the canalisation and water construction works : of the CARDINAL tenders made , ORG had offered a lower price than the applicants .","Shortly afterwards a meeting was held between the administration and the applicants at which it apparently transpired that ORG was not in fact in a position to undertake the entire construction works itself and that ORG eventually rose to the second position of bidders in view of an alleged calculation error of MONEY in their tender .","As a result , the applicants , pursuant to LAW ( ORG , see below , Relevant domestic law ) filed a complaint with the Government ( NORP ) of the GPE of GPE . They maintained that there had been procedural defects and breaches of LAW , inter alia , in that ORG , in its tender , had omitted to specify which constructions would be outsourced to other companies ; and that the tender of ORG contained elements of unfair competition .","The Government of the GPE of GPE dismissed the complaint on DATE , pointing out that the award had found that ORG would be in a position to undertake substantial parts of the construction works itself , and that the tender of ORG had contained an error in that CARDINAL particular price had been multiplied by CARDINAL .","The applicants filed an administrative law appeal ( PERSON ) with ORG ( Verwaltungsgericht ) of the GPE of GPE in which they complained that they had not had access to a court within the meaning of LAW . They further complained that they had not been able to consult the case - file and that the law had been incorrectly applied .","On DATE the ORG found that it had no jurisdiction to entertain the appeal . In particular , LAW was inapplicable as the applicants had not demonstrated the existence of a \u201c right \u201d within the meaning of that Article .","The applicants\u2019 further administrative law appeal was dismissed by ORG ( PERSON ) on DATE , the decision being served on DATE .","In its decision , that court found that the applicants had no standing in view of its constant case - law according to which decisions on tenders did not concern legally protected rights , as would be required when filing an administrative law appeal . In respect of the ORG complaint about lack of access to a court within the meaning of LAW , the court considered that this provision did not itself grant new substantive rights but was applicable only if a \u201c right \u201d arose under domestic law . No such right existed if it could not be claimed before a court . The court then referred to LAW of the Ordinance ( Verordnung ) completing LAW ( see below , Relevant domestic law ) . These provisions envisaged , in principle , that tenders with lower prices would prevail , though , according to LAW of the GPE , the lowest offer is not always the cheapest . As a result , domestic law did not grant a \u201c right \u201d to be awarded a particular offer upon tender , for which reason LAW was not applicable .","B. Relevant domestic law","The DATE LAW ) of the GPE of GPE deals with invitations for tenders and with the award of construction works by the GPE of GPE and its municipalities . LAW determines that construction works shall as a rule be awarded following a competitive invitation for tenders . LAW provides for an appeal to the Government ( NORP ) for those applicants whose personal interests worthy of protection are at issue ( in ihren pers\u00f6nlichen sch\u00fctzenswerten ORG beeintr\u00e4chtigt ) .","The Ordinance ( Verordnung ) completing LAW provides , insofar as relevant :","\u201c Section CARDINAL Principles governing award . ( a ) General","Construction works and supplies are to be awarded , based on the principle of economy , to the candidate who has made the cheapest offer ( g\u00fcnstigstes ORG ) .","ORG The cheapest offer will be the one with the lowest price ( tiefster PERSON ) as long as the implementation of the construction works or supplies corresponds to the substantive requirements and the time - limit . The lowest tender ( niedrigstes ORG ) will not , therefore , always be the cheapest .","Section CARDINAL ( b ) In case of equal or similar tenders","In case of equal or similar tenders , the following criteria shall be considered :","( a ) proof of good performance ;","( b ) variety among the candidates ;","( c ) degree of employment when implementing the construction works ;","( d ) tax domicile in the GPE of GPE or in the municipality concerned ;","( e ) payment of taxes in the GPE of GPE or in the municipality concerned ;","( f ) use of local construction materials and products ;","( g ) professional qualifications of the head of enterprise ( e.g. master craftsman ) and of the ORG employees ;","( h ) training of apprentices ;","( i ) securing and maintaining employment in the GPE of GPE or the GPE municipalities concerned .","The order of relevance when employing the criteria mentioned in LAW shall be determined by the awarding authority individually and according to the situation concerned , in particular in the light of the economic situation . \u201d","According to LAW of the GPE , the authority concerned is not obliged to give reasons to candidates whose tender has not been considered .","Meanwhile , Section CARDINAL of LAW on a Common Market ( PERSON ) provides for an appeal to a court in case of alleged restricted access to the common market , but this provision entered into force only on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-101552","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2010,"docname":"CASE OF ANGELOV AND OTHERS v. BULGARIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicants were born in DATE , DATE , DATE and DATE respectively . The second applicant is currently detained in FAC . The third applicant lives in GPE , GPE . The remaining applicants live in the village of ORG in GPE .","On DATE and CARDINAL DATE the police in GPE opened CARDINAL investigations into several thefts of sheep and goats . CARDINAL DATE the applicants submitted written explanations admitting to having committed the thefts .","NORP The proceedings remained dormant until DATE when a police investigator questioned several witnesses and commissioned CARDINAL expert reports concerning the value of the stolen animals . DATE the investigator brought charges against the CARDINAL applicants .","On DATE the first and third applicants were questioned before a judge .","NORP In DATE the investigation was concluded and on DATE the applicants were indicted for theft . On DATE they entered into a plea agreement with the prosecution , accepting short suspended sentences . At a hearing held on DATE the ORG affirmed the agreement and discontinued the proceedings . Its decision was final ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102117","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2010,"docname":"CASE OF SEAL v. THE UNITED KINGDOM","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 6-1","judges":"Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","In TIME of DATE , the applicant went to visit his mother at her house in GPE but could not park his car because of obstruction by other vehicles . He went into his mother 's house having been unable to alert the owners of other vehicles by sounding his horn . He decided to telephone the police to complain about the obstruction and his mother tried to stop him . At some stage , someone contacted the police and they arrived at the house TIME .","There is a dispute about what occurred subsequently . The applicant was arrested inside his mother 's house for breach of the peace . He disputes that there were lawful grounds for arresting him . He was taken outside the house into the street . The police claimed that at that stage , they intended to take him home but as a result of what happened outside they decided to remove him in accordance with section DATE ) of LAW DATE ( \u201c the DATE Act \u201d \u2013 see paragraphs CARDINAL below ) .","The applicant was taken to GPE hospital , QUANTITY away from his mother 's home , where he was detained pursuant to section CARDINAL(CARDINAL ) of the CARDINAL Act and , subsequently , section CARDINAL of the DATE Act until DATE , when his release was ordered by a mental health review tribunal .","On DATE , the applicant 's then solicitors wrote to the police claiming damages on the basis that there was no justification for the applicant 's detention under section CARDINAL .","On DATE , the eve of the expiry of the relevant limitation period ( see paragraph CARDINAL below ) , the applicant ( who was by then no longer legally represented ) issued proceedings in ORG seeking damages from the Chief Constable of GPE Police for \u201c trespass , assault , wrongful arrest , misuse of police powers , misuse of section CARDINAL of the CARDINAL Act , falsehood and personal injuries sustained \u201d as a result of the events of DATE . His particulars of claim indicated that :","\u201c At the time of the incident on CARDINAL\/CARDINAL\/CARDINAL at my mother 's house the police at no time inform[ed ] me of any arrest or that I was to be detained pursuant to LAW , DATE . I am aware that the police can only use LAW to detain persons found in public places provided that the person to be detained appears to the police constable to have a mental disorder and to be in immediate need of care or control and such that it be necessary to take the person to a place of safety for the protection of the person detained or for the protection of others . At no stage did the police find me in a public place , on the contrary I was taken from a private dwelling by the police to a public place and at no time could my conduct be construed or considered as that of a mentally - disordered person . Therefore the use of LAW of LAW was unlawful . \u201d","Under section CARDINAL(CARDINAL ) of LAW , the leave of ORG was required prior to the commencement of any claim relating to the exercise of powers under LAW ( see paragraph CARDINAL below ) . The applicant failed to seek High Court leave before commencing his claim .","On DATE , the respondent filed both a defence to the claim on the grounds of section CARDINAL ) of LAW ( see paragraph CARDINAL below ) relying on the absence of allegations of bad faith or failure to take reasonable care and an application for the claim to be struck out on the grounds that leave from ORG , as required under LAW ) , had not been obtained prior to the proceedings being brought . The respondent further argued that the claims in defamation and falsehood were time - barred pursuant to section CARDINAL of LAW ( \u201c the DATE \u201d \u2013 see paragraph CARDINAL below ) .","On DATE , ORG ordered that the claim be struck out on the basis that the proceedings were a nullity as leave had not been granted by ORG . The claim in defamation and malicious falsehood was struck out by consent as the relevant limitation period had expired in respect of such claims .","On DATE , permission to appeal the decision to strike out the claim was granted .","On DATE , the Circuit Judge varied the order of ORG . He reinstated the claim insofar as it related to events which took place before the applicant was detained and removed under LAW . In relation to the applicant 's complaints regarding his detention under LAW , however , ORG dismissed the applicant 's appeal , finding the legal proceedings in that regard to be a nullity as a result of the failure to obtain prior leave .","In handing down his judgment , he noted :","\u201c I did consider at CARDINAL stage whether it would be open to Mr. PERSON simply to make an application to ORG for the permission required by CARDINAL of LAW and then simply apply under the provisions of the [ Civil Procedure Rules ] ... to add the further claim . However , the defendant will raise the LAW defence . \u201d","The applicant was granted leave to appeal to ORG .","NORP Before ORG , the applicant argued that the Circuit Judge should have reinstated the whole claim and should have granted a stay in relation to that part of the complaint relating to the removal and detention under LAW until the necessary leave had been obtained . On DATE , ORG dismissed the applicant 's appeal . Leave to appeal to ORG was granted .","NORP The argument before ORG focussed on the consequences in terms of section CARDINAL(CARDINAL ) of LAW of bringing proceedings without prior leave from ORG . The respondent argued that such a failure rendered the proceedings a nullity . The applicant , on the other hand , argued that lack of leave was a procedural irregularity which could be corrected .","On DATE , ORG handed down its judgment and , by a majority of CARDINAL , dismissed the applicant 's appeal .","Lord GPE of GPE , of the majority , considered the applicant 's argument that section CARDINAL(CARDINAL ) infringed his right of access to court but concluded that this was not an argument that he could accept . He noted ( at paragraph CARDINAL ) :","\u201c ORG has accepted that the right of access to the court is not absolute , but may be subject to limitations : PERSON ( DATE ) CARDINAL EHRR CARDINAL , para CARDINAL . The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective : ibid , para CARDINAL ; M v GPE ( DATE ) CARDINAL DR CARDINAL , CARDINAL . What matters ( PERSON , para CARDINAL ) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right . But the threshold for obtaining leave under section CARDINAL(CARDINAL ) has been set at a very unexacting level : PERSON v Jones [ DATE ] LAW . An applicant with an arguable case will be granted leave . PERSON undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by LAW , which would not itself fall foul of article CARDINAL : PERSON v GPE ( DATE ) CARDINAL EHRR CARDINAL . \u201d","Similarly , Lord PERSON of ORG - under - Heywood considered that ORG had made it clear under section CARDINAL that relevant proceedings brought without leave were a nullity .","\u201c CARDINAL . It seems to me quite evident from the legislative history of this provision that from DATE onwards ORG intended to make leave a precondition of any effective proceedings . Unlike the position prior to DATE , the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a ORG judge . Absent such leave , albeit he might be notified of a claimant 's proposal to proceed against him , he was not to be troubled by such proceedings . The very inflexibility of the provision was an integral part of the protection it afforded . If , however , the [ applicant 's ] approach were to be adopted , inevitably ( unless by chance the court took the point of its own motion ) the defendant himself would be drawn into the litigation .","... I repeat , the requirement for leave here was to safeguard prospective defendants from being faced with proceedings ( which might not be sufficiently meritorious to deserve leave ) unless and until a ORG judge thought it appropriate that they be issued . And that is not a protection that can be secured save by a clear and inflexible rule such as section CARDINAL(CARDINAL ) ( and its legislative predecessors ) have always hitherto been understood to provide . Just such a rule applies in respect of those adjudged vexatious litigants under section CARDINAL of LAW DATE and ORG clearly intended to achieve the same result under LAW legislation . Whether or not such protection is necessary or desirable is , of course , open to question and has , indeed , been extensively debated over DATE . But your Lordships ' task is not to decide whether it is desirable but whether presently the legislation confers it . \u201d","As to the Article CARDINAL argument advanced by the applicant , Lord PERSON said ( at paragraph CARDINAL ) :","\u201c To suggest that the approach hitherto adopted to section CARDINAL(CARDINAL ) involves a violation of article CARDINAL of LAW seems to me fanciful . Such an approach can not sensibly be seen ( as ORG suggests ) ' to brand every person who is or has been subject to the compulsory powers in LAW as a potential vexatious litigant ' . Nor can it be seen to have ' an effect out of all proportion to the aim which it is attempting to pursue . ' Of course , in a rare case ( perhaps such as this one ) a combination of circumstances \u2014 ignorance of the law ( ie of section CARDINAL(CARDINAL ) ) , the delay in the issue of proceedings until DATE limitation period , and the inflexibility of section CARDINAL of the LAW DATE itself ( assuming the defendant chooses to take LAW defence ) will operate to deprive the prospective claimant of his claim . But that , of course , is equally so in the case of a litigant in person ignorant of DATE limitation period itself . In each case the loss of the claim is the price paid for certainty \u2014 just as there is a price to be paid for the established principle ( and the assurance it provides ) protecting various classes of prospective defendant against claims in negligence ... None of these cases can properly be characterised as a denial of access to the courts contrary to LAW and it seems to me unsurprising that the point was not even taken in the courts below . \u201d","Baroness PERSON of GPE , dissenting , noted at the outset of her opinion ( at paragraph CARDINAL ) :","\u201c The question is CARDINAL of statutory construction . Despite the antiquity of this provision , which dates back to LAW , the question has never arisen directly before . But it concerns a fundamental constitutional right \u2013 the right of access to the courts . It also concerns the exercise of that right by a peculiarly vulnerable group of people \u2013 people who are or have been the subject of compulsory detention under LAW DATE . The courts here DATE and in GPE \u2013 have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints : see particularly ORG ( DATE ) CARDINAL EHRR CARDINAL in GPE and R v Secretary of ORG for ORG , Ex p PERSON [ DATE ] QB CARDINAL ; R v Secretary of ORG for ORG , Ex p PERSON [ DATE ] CARDINAL ORG CARDINAL ; and R ( PERSON ) v Secretary of ORG for ORG [ DATE ] ORG CARDINAL ; [ DATE ] CARDINAL AC CARDINAL in GPE . The courts should be no less vigilant to safeguard the rights of mental patients , most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims . \u201d","She continued :","\u201c CARDINAL . I approach the task of construing section CARDINAL(CARDINAL ) , therefore , on the basis that ORG , by enacting the procedural requirement to obtain leave , did not intend the result to be that a claimant might be deprived of access to the courts , unless there is express language or necessary implication to the contrary . If there is no express language , there will be no necessary implication unless the legislative purpose can not be achieved in any other way . Procedural requirements are there to serve the ends of justice , not to defeat them . It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant .","The express words are :","' No civil proceedings shall be brought ... in respect of any such act without the leave of ORG ; ... '","These words say nothing about what is to be the consequence if , through ignorance or error , proceedings are in fact started without leave ... \u201d","...","\u201c DATE . Nowhere ... is there any discussion of the consequence if proceedings are brought without first obtaining leave . The purpose was and remains the protection of staff . But protection from what ? It can not have been intended or expected that staff would be protected from all knowledge of possible claims . LAW had expressly required that notice of an application for leave be given to the proposed defendant . Good practice and common courtesy , then as now , would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave . What staff are protected from is having to defend a baseless action . Such protection is not undermined if an action is , whether through ignorance or inadvertence , begun without leave and the defendant takes the point or the court takes it of its own motion . The burden is still on the claimant to establish that the case should go further . \u201d","She concluded ( at paragraphs CARDINAL ) that :","\u201c If spotted in time , the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant . If it is not spotted in time , and the action succeeds , no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand ; but a serious injustice will be done to the successful claimant if it has to be set aside , for by then it is not at all unlikely that the action will be statute barred . The fact that leave is required at all may not emerge until a relatively late stage in the proceedings . That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no - one noticed at the time is an affront to justice .","My ORG , I would not interpret section CARDINAL(CARDINAL ) so as to achieve such an obviously unjust result unless driven by the statutory language so to do . The statutory language makes it clear that if anyone , including the claimant , appreciates the point , then leave must be obtained . It does not make it clear that if no - one , including the court or the defendant , does so , the proceedings are a nullity . Halfway houses are usually to be preferred to absolute extremes . \u201d","Considering LAW and the jurisprudence of this ORG , ORG noted :","\u201c CARDINAL . To be proportionate , a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued . To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims . But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in LAW as a potential vexatious litigant . There are some compulsory patients who suffer from paranoid delusions ; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble . But the blanket restriction in section CARDINAL(CARDINAL ) takes no account of these subtleties . It assumes that everyone who has ever been subject to LAW compulsion is automatically suspect . This is not only empirically unproven . It certainly can not be taken for granted when LAW powers may be exercised by people with no mental health expertise whatsoever . On the one hand , therefore , section CARDINAL(CARDINAL ) goes too far . On the other hand , however , it may not go far enough , because it is limited to acts done in pursuance of LAW itself . If certain mental patients are ex hypothesi vexatious litigants , then people who exercise authority over them otherwise than under LAW may also deserve protection .","This case is an excellent illustration . The police case is that Mr PERSON was first arrested inside his mother 's home for a breach of the peace . Having been taken outside he was then detained under section DATE ) of the DATE Act :","...","Police officers lead difficult and dangerous lives . They have to make snap decisions in complex situations where there is no time for quiet contemplation . They deserve the support of the public , the courts and the law . But it has not been shown why they should need more protection and more support when they remove people to a place of safety under LAW DATE than they have when they conduct an ordinary arrest .","Even where a rational connection between the end and the means can be shown , the means still have to be proportionate to the ends . There will be cases in which the operation of section CARDINAL(CARDINAL ) is proportionate . There will be other cases , quite possibly including this , in which it is not . Blanket provisions , which catch a great many cases in which the restriction is not justified in order to catch the few where it may be , require particularly careful scrutiny . If section CARDINAL ) has the effect that proceedings are always a compete nullity , thus depriving a claimant of a good claim , that is an effect out of all proportion to the aim which it is attempting to pursue . Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response . \u201d","In the applicant 's case , she concluded that the appeal should be allowed , noting ( at paragraphs CARDINAL ) :","\u201c The police may well have an answer to PERSON claim . But their case is not without difficulty . If he was ' removed ' under LAW of LAW from his mother 's home , he can not have been ' found in a place to which the public have access ' . If he was arrested in her home for a breach of the peace , and then ' removed ' under LAW after they had taken him outside , can it be said that they ' found ' him there ? ( To say otherwise would deprive section CARDINAL of much of its usefulness when an arrested person is later discovered to have a mental disorder . ) These are questions which deserve to be addressed at the trial of the claim . By no stretch of the imagination is this vexatious . It may not be worth a great deal of money but that is not the point .","Section CARDINAL(CARDINAL ) covers a great many people who are neither vexatious litigants nor , by reason of their mental disorder , more likely than the general population to launch vexatious actions . I do not believe that ORG ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain ORG leave in time . Defendants deserve protection from vexatious claims . They do not deserve protection from meritorious claims . But if that was ORG 's intention , it is an irrational and disproportionate interference in the Convention right to access to justice . There is no problem in reading down section CARDINAL(CARDINAL ) to cure that because there is nothing there to prevent it . However , the best solution would be to remove the procedural requirement altogether , as proposed in Clause CARDINAL of ORG PERSON proposed by ORG in DATE ( CARDINAL , Cm PERCENT CARDINAL ) . ORG Bill currently before ORG , provides such an opportunity . \u201d","Also dissenting , Lord PERSON accepted that it was not desirable to leave it until the limitation period had","Following the conclusion of the proceedings in ORG , the applicant did not continue with the remainder of his claim ( see paragraphs CARDINAL , CARDINAL and DATE above ) in ORG .","Section CARDINAL of LAW , as in force at the time of the applicant 's arrest and the commencement of the legal proceedings in this case , provided as follows :","\u201c ( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person or for the protection of other persons , remove that person to a place of safety within the meaning of section CARDINAL above .","( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . \u201d","Section CARDINAL provided :","\u201c ( CARDINAL ) No person shall be liable , whether on the ground of want of jurisdiction or on any other ground , to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this LAW or any regulations or rules made under LAW , or in , or in pursuance of anything done in , the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this LAW , unless the act was done in bad faith or without reasonable care .","( CARDINAL ) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of ORG ; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of ORG . \u201d","The relevant provisions of LAW have undergone amendments since the time of the events to which this application relates which are irrelevant for the present purposes .","Section CARDINAL of the DATE Act allows for detention for the purposes of assessment for DATE .","Section CARDINAL of LAW DATE ( \u201c the DATE LAW ) provides as follows :","\u201c An action founded on tort shall not be brought after the expiration of DATE from the date on which the cause of action accrued \u201d","Section CARDINAL establishes a more limited time period for commencing actions for defamation or malicious falsehood and provides that :","\u201c The time limit under LAW shall not apply to an action for\u2013","( a ) libel or slander , or","( b ) slander of title , slander of goods or other malicious falsehood ,","but no such action shall be brought after the expiration of DATE from the date on which the cause of action accrued . \u201d","Section CARDINAL of the CARDINAL LAW provides for a special time limit for actions in respect of personal injuries :","\u201c ( CARDINAL ) This section applies to any action for damages for negligence , nuisance or breach of duty ... where the damages claimed by the plaintiff for the negligence , nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person .","...","( CARDINAL ) None of the time limits given in the preceding provisions of this LAW shall apply to an action to which this section applies .","( CARDINAL ) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( CARDINAL ) or ( CARDINAL ) below .","( CARDINAL ) Except where subsection ( CARDINAL ) below applies , the period applicable is DATE from\u2013","( a ) the date on which the cause of action accrued ; or","( b ) the date of knowledge ( if later ) of the person injured .","... \u201d","Section CARDINAL of the LAW provides for discretionary disapplication of the time - limit for actions in respect of personal injuries or death :","\u201c ( CARDINAL ) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which\u2013","( a ) the provisions of LAW ... of this LAW prejudice the plaintiff or any person whom he represents ; and","( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ;","the court may direct that those provisions shall not apply to the action , or shall not apply to any specified cause of action to which the action relates .","...","\u2013","( a ) the length of , and the reasons for , the delay on the part of the plaintiff ;","( b ) the extent to which , having regard to the delay , the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by LAW ... ;","( c ) the conduct of the defendant after the cause of action arose , including the extent ( if any ) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff 's cause of action against the defendant ;","...","( e ) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant , to which the injury was attributable , might be capable at that time of giving rise to an action for damages ;","( f ) the steps , if any , taken by the plaintiff to obtain medical , legal or other expert advice and the nature of any such advice he may have received .","... \u201d","LAW on the Rights of Persons with Disabilities , signed by the respondent ORG on DATE and ratified on DATE , aims to promote , protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities , and to promote respect for their inherent dignity ( LAW ) .","Article CARDINAL provides for equal recognition before the law and stipulates :","\u201c CARDINAL . GPE Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law .","GPE Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life .","GPE Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity .","GPE Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law . Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights , will and preferences of the person , are free of conflict of interest and undue influence , are proportional and tailored to the person 's circumstances , apply for the shortest time possible and are subject to regular review by a competent , independent and impartial authority or judicial body . The safeguards shall be proportional to the degree to which such measures affect the person 's rights and interests .","Subject to the provisions of this article , GPE Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property , to control their own financial affairs and to have equal access to bank loans , mortgages and other forms of financial credit , and shall ensure that persons with disabilities are not arbitrarily deprived of their property . \u201d","Article CARDINAL contains provisions on access to justice and provides , in so far as relevant :","\u201c CARDINAL . GPE Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others , including through the provision of procedural and age - appropriate accommodations , in order to facilitate their effective role as direct and indirect participants , including as witnesses , in all legal proceedings , including at investigative and other preliminary stages .","... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96953","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF ALICAN v. TURKEY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicants were born in DATE , DATE and DATE respectively . The first and the third applicant live in GPE and the second applicant resides in PERSON . The application concerns the wounding of the first applicant , who was DATE at the time , and the death of the second and third applicants ' sons , ORG and PERSON , who were DATE respectively , as a result of the explosion of an RPG-CARDINAL ( anti - tank grenade launcher ) grenade outside the applicants ' village , GPE , in GPE .","The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .","On DATE PERSON , PERSON and PERSON took their animals out to graze . When the animals returned to the village without the children , the villagers launched a search party and informed the military nearby ; FAC . A search was also unsuccessfully conducted within the military confines . DATE , the dead bodies of ORG and PERSON were found in a wheat field between the army barracks and LOC . The first applicant , who had injuries to his eyes and legs , was found QUANTITY away . He was immediately taken to ORG for treatment . As a result of the explosion , the first applicant suffered partial loss of the sight of CARDINAL eye and the total loss of sight in the other .","According to the first applicant 's testimony , given to a prosecutor on DATE , the children were grazing their sheep in the field when they found an object with an iron head which looked like a bullet . The first applicant left the other CARDINAL children to find water while they were trying to hit the iron head with pieces of metal . At that moment the bullet exploded .","On DATE the ORG public prosecutor instigated an investigation into the incident . The prosecutor noted that there were numerous trenches around the area for tank and gun practice . The remains of the ammunition at the scene were secured . Reports and sketches were drafted and a postmortem examination was conducted on the deceased . The cause of death was attributed to hemorrhagic shock and the doctor deemed it unnecessary to conduct a classic autopsy of the deceased .","On DATE the ORG public prosecutor decided that he lacked jurisdiction to investigate the incident and forwarded his decision to the military prosecutor 's office at the DATE gendarmerie border brigade commandership ( \u201c the military prosecutor \u201d ) .","The military prosecutor instigated an investigation into the incident . In particular , he requested the official records regarding the use of grenade launchers by the military during training , and medical reports regarding the health of the first applicant .","In the course of the investigation evidence was gathered from the first applicant , the third applicant , the head of the village , Mr PERSON NORP , a fellow villager , the soldiers on patrol duty on DATE of the incident and a higher - ranking military official .","On DATE the military prosecutor gave a decision that there was no need to initiate criminal proceedings on the ground that there was no fault or negligence attributable to anyone except PERSON , PERSON and PERSON . In his decision , the prosecutor noted that the children , while they were grazing their animals , had collected , near the trenches , a grenade from an RPG-CARDINAL grenade launcher and parts of a rocket , and that the incident had occurred while they were trying to explode them . He further noted that the incident had occurred QUANTITY away from the ORG where CARDINAL fields met and that it was not a military area . In this connection , the prosecutor held that , according to the official military records , no unexploded grenades or rockets had been found after military training exercises , that the origin of these artefacts could not be established and that , even assuming that they were launched from the military training field , their range made it impossible for them to have landed QUANTITY away from it .","The decision of the military prosecutor was served on CARDINAL DATE on PERSON , on DATE on PERSON and on DATE on PERSON . The applicants did not object to the military prosecutor 's decision .","On DATE and CARDINAL DATE the applicants made applications to ORG for compensation on account of the injury sustained by the first applicant and the death of the other applicants ' sons . They received no positive reply .","On DATE the first and the second applicants , and on CARDINAL DATE the third applicant , brought actions for compensation against the Ministry before ORG . They were represented by the same lawyers . In their petitions , the applicants claimed that PERSON had been injured and ORG and PERSON had died as a result of a mine which had been placed there by the gendarmerie police station . The first applicant requested the court to award MONEY ( TRL ) for pecuniary damage and TRL CARDINAL for nonpecuniary damage . The second and the third applicant each requested TRL CARDINAL for loss of income on account of the death of their sons .","On DATE ORG , basing its decision on the doctrine of \u201c social risk \u201d , awarded the applicant 's claim in full . Although the amount determined by experts for pecuniary damage was significantly higher , the court was bound by the amount requested by the applicant .","The Ministry appealed .","On DATE ORG quashed the judgment of the first - instance court on the ground that the latter had failed to determine which administrative entity , that is either ORG or ORG , had responsibility for compensating the applicant .","On DATE ORG , deciding that ORG had responsibility , gave its judgment . The court held as follows :","\u201c ...","According to the report of the public prosecutor , the incident took place QUANTITY from FAC . ( According to the sketch plan the distance is QUANTITY . ) It was a grenade for a rocket launcher called RPG-CARDINAL , which exploded . The explosion occurred in an area where rockets are launched . Yet the origin of the grenade which caused the explosion is unknown . According to the inventory of ORG , this type of weapon ( RPG-CARDINAL ) is used by the military . However , it was included in the inventory of the CARDINALth ORG after the date of the incident in question . The maximum shooting range of the RPG-CARDINAL is QUANTITY metres . The results of an investigation into the military units deployed in the region prior to the incident revealed that CARDINAL of these units had engaged in shooting practice . According to the records of that unit they had left no unexploded grenades . The rocket launcher in question is frequently used by members of the ORG terrorist organisation . Furthermore , the incident took place QUANTITY from the barracks , in an area , which according to the attached map , has been declared to be a CARDINALnd degree military security zone .","Although it is established that the explosion occurred in the vicinity of the rocket launching zone , since the distance from the barracks was QUANTITY it can not be accepted that the unexploded grenade which caused the explosion was one used during a military unit 's training . The investigation conducted by the military prosecutor at ORG Commander 's office resulted in the same conclusion . Moreover , the conditions in the region are particular : the weapon in question is frequently used and hidden by the terrorist organisation . The grenade might have been left by terrorists who attacked the barracks . It should therefore be concluded that the damage in the present case was not caused by the activities of military forces but rather by terrorist activities . Nevertheless , taking into account the fact that a state of emergency was in force in the region at the time and the extraordinary nature of the damage , compensation should be awarded by the administration in accordance with the theory of \u201c social risk \u201d .","... The plaintiff should therefore be paid his claim in full , TRL CARDINAL for pecuniary damage ... although according to the expert reports , pecuniary damage in the present case could amount to TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL .","... As regards non - pecuniary damage , the plaintiff should be awarded TRL CARDINAL .","The Ministry appealed .","On DATE ORG upheld the judgment of the first - instance court .","On DATE ORG , basing its decision on the doctrine of \u201c social risk \u201d , awarded the applicant a certain amount of compensation .","The ORG appealed .","On DATE ORG quashed the judgment of the first - instance court on the ground that the latter had failed to determine which administrative entity , that is either ORG or ORG , had responsibility for compensating the applicant .","On DATE ORG , basing its decision on the doctrine of \u201c social risk \u201d , on the same ground as above , awarded the second applicant GPE CARDINAL,CARDINAL,CARDINAL in respect of pecuniary damage together with legal interest running from the date of the incident , DATE .","The Ministry appealed .","On DATE ORG upheld the judgment as regards the amount of compensation awarded but quashed the judgment of the first - instance court in respect of the date from which the interest should run .","On DATE ORG held that the date of interest would start to run from the date when the applicant lodged an application with ORG , i.e. DATE .","On DATE ORG , basing its decision on the doctrine of \u201c social risk \u201d , awarded the applicant a certain amount of compensation .","The ORG appealed .","On DATE ORG quashed the judgment of the first - instance court on the ground that the latter had failed to determine which administrative entity , either ORG or ORG , had responsibility for compensating the applicant .","On DATE ORG , basing its decision on the doctrine of \u201c social risk \u201d on the same ground as above , awarded the third applicant GPE CARDINAL,CARDINAL,CARDINAL in respect of pecuniary damage together with legal interest running from DATE .","The Ministry appealed .","On DATE ORG upheld the judgment of the first - instance court .","The relevant domestic law and practice in force at the material time can be found in the following judgments : PERSON and Others v. GPE ( nos . DATE - CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and DATE , \u00a7 \u00a7 DATE and DATE , ORG CARDINALVI ( extracts ) ) , and PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , CARDINAL DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91368","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2009,"docname":"CASE OF SUPTEL v. UKRAINE","importance":4,"conclusion":"Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant , accompanied by ORG and GPE , threw a burning torch into a car belonging to ORG as a retaliatory measure for allegedly unfair business dealings with the applicant . The interior of the car was damaged . The police decided not to initiate criminal proceedings into the incident at the material time for lack of corpus delicti .","On DATE PERSON was fatally injured in a stabbing .","Criminal proceedings into the circumstances of his death were initiated on DATE .","According to the applicant , at TIME on DATE he was arrested on suspicion of incitement to murder and taken to LOC , where he was severely ill - treated by some QUANTITY police officers until he confessed to the offence on CARDINAL DATE . In particular , he alleged that the police officers had handcuffed and kicked him and fractured his ankle with a crowbar . He had lost consciousness and , on coming round , had found himself suspended from a crowbar with his hands locked under his knees . After he had signed the confession , the officers had contacted his wife and requested her to bring fresh clothes and a coat , on which he was then carried down to a police cell . Afraid that the staff of ORG ( the \u201c ORG \u201d ) would not admit the applicant on account of his injuries , the officers left him in a cell at the police station , unable to walk and without even the most basic care .","According to the official record , the applicant was arrested on DATE at TIME in the LOC of FAC .","On DATE criminal proceedings were instituted against the applicant and CARDINAL other individuals : PERSON , who was suspected of ORG \u2019s stabbing , and ORG , who was suspected of having hired PERSON to do so .","On DATE the applicant was admitted to the ORG . The officer on duty noted that he had a leg injury .","On DATE the ORG paramedic called an ambulance . The ambulance paramedic found that the applicant had suffered a severe chest contusion and arranged for his admission to ORG , where he was treated until DATE . According to a medical certificate issued by the hospital , the applicant had suffered a closed chest injury , closed fragmental fracture of the right ankle and a haematoma in an ankle joint . He was operated on to drain abscesses on both ankles . QUANTITY of puss was recovered from CARDINAL ankle and QUANTITY from the other .","On DATE the applicant was officially indicted for incitement to murder .","On DATE the Vatutinsky District ORG rejected a request by the applicant to initiate criminal proceedings against the police officers on account of his alleged ill - treatment , as it found his complaint unfounded .","On DATE the case - file concerning the murder charges was sent with the bill of indictment to ORG for examination on the merits .","On DATE the court held the first hearing .","DATE the court held some QUANTITY hearings . At the trial all the defendants retracted their initial confessions . CARDINAL witnesses also complained that they had been ill - treated by the police , who had incited them to give evidence against the defendants , who were friends of theirs . The applicant further alleged that the police officers had drafted a confession which they had forced him to sign .","On DATE ORG found the defendants guilty as charged and sentenced the applicant to fifteen years\u2019 imprisonment . It rejected the GPE allegations of ill - treatment , primarily on the strength of the testimony of QUANTITY police officers who had denied the allegations while admitting that force had been used to arrest the defendants . The court further referred to the ORG office \u2019s decision of DATE , dismissing the applicant \u2019s request to institute criminal proceedings .","On DATE the applicant filed a new request with the ORG office for a criminal investigation into his alleged ill - treatment . This was rejected on DATE .","On DATE , following complaints by the defendants and several witnesses involved in the proceedings of ill - treatment , the Deputy Head of ORG , NORP , sent a letter to the Prosecutor General requesting a criminal investigation .","NORP In a letter of DATE the Deputy ORG requested ORG to include his letter in the case - file and informed NORP that no investigation had been possible at the material time , as the case had been pending before the judicial authorities , which prevented the prosecution from having access to the relevant materials annexed to the case - file .","On DATE the Vatutinsky District PERSON issued the applicant with a certificate stating that , in addition to the injuries recorded in the hospital , in DATE he had also suffered injuries to his wrist and coccyx .","On DATE ORG quashed the judgment of DATE and remitted the case for additional pre - trial investigations . It found it peculiar that the applicant \u2019s confession was dated CARDINAL DATE , while the official record stated that he had first been questioned and arrested on DATE . Further , it noted that the trial court should have ordered a medical report on the applicant in order to obtain objective information concerning his injuries and an assessment by a handwriting expert to verify his allegation that his confession had not been drafted by him .","On DATE the investigators decided to resume the criminal proceedings against the applicant , ORG and ORG on suspicion of arson in connection with the torching of ORG \u2019s car in DATE . Subsequently , the applicant was formally charged with arson .","On DATE the criminal cases concerning both the arson and murder charges were joined .","On DATE the medical records of the applicant \u2019s injuries were assessed by a medical expert , who confirmed that in DATE the applicant had suffered a haematoma to his right ankle joint . At the same time he found that the chest contusion diagnosis was insufficiently substantiated . He did not provide any conclusions concerning the other injuries listed in the applicant \u2019s records .","On DATE the police instituted criminal proceedings against ORG , the applicant \u2019s wife on the grounds that , while working as a nurse , she had forged , in particular , a certificate that purported to have been issued by the Vatutinsky District PERSON on DATE . On DATE she was amnestied .","On DATE the Vatutinsky District ORG again refused to institute criminal proceedings in connection with the applicant \u2019s allegation of ill - treatment . It noted , in particular , that the applicant had been arrested on DATE and that , as the arresting officers had been aware that the applicant , a former sportsman , was well - built , might have been armed and was implicated in a serious offence , they had had to use force to arrest him . In doing so , they had tripped him up , thrown him against the bonnet of a car , and handcuffed him . ORG considered that this was what had caused the applicant to suffer the haematoma . As regards the other injuries noted in the applicant \u2019s medical records , they had not been confirmed by the recent medical expert report .","On DATE ORG found it probable that the applicant \u2019s confession had been dictated by a professional , skilled in the preparation of procedural documents , to an individual , who had written the text under stress , possibly on account of physical pain . No assessment was carried out to determine whether the statement had been written by the applicant \u2019s hand .","In DATE the criminal case concerning the murder and arson charges was sent to ORG ( the former ORG ) for trial .","On DATE the court decided that further pre - trial investigations were necessary . It found , inter alia , that the investigation had not fully complied with ORG instructions . In particular , it had not been established why the applicant \u2019s confession had been dated DATE , while no other procedural documents had been executed on that date ; nor was there any indication as to where the applicant had been held between TIME and DATE and why he had arrived in the ORG only on DATE . The court further noted that the officers manning the LOC where the applicant had been kept before DATE should have been questioned about his state of health during that period . Finally , the investigation should have established whether it was likely that the applicant \u2019s injuries had been caused in the manner he had described .","On DATE ORG upheld the decision to order additional investigations .","On DATE the case was referred to ORG for trial . DATE and DATE that court held some DATE hearings .","On DATE ORG remitted the case for a pre - trial investigation in respect of the murder charges . It found , in particular , that the materials relating to the applicant \u2019s first interrogation , in which he had confessed to the murder , were inadmissible as evidence , as he had been questioned as a witness in the absence of a lawyer , whose presence was obligatory in view of the gravity of the alleged offence . Furthermore , the court referred to the failure of the investigation to establish the facts concerning the drafting of the applicant \u2019s confession and the other circumstances of his arrest and initial interrogation , including DATE . It noted , in particular , that the investigator had alleged that he had been unaware of the applicant \u2019s detention on DATE . According to him , the applicant had confessed on DATE . At the same time , several police officers had submitted that the investigative and prosecuting authorities had been fully aware of the applicant \u2019s arrest on CARDINAL DATE . The court also noted that the expert who had carried out the applicant \u2019s medical assessment had not made any findings concerning certain of his injuries , including the wrist injury and CARDINAL abscesses that had been noted in various medical records . Moreover , the assessment had not been carried out by a panel of experts as required , but by a single expert .","On DATE the court found the applicant , ORG and GPE guilty of arson and sentenced the applicant to DATE imprisonment .","On DATE ORG upheld ORG decision of DATE and judgment of DATE .","On DATE the investigators ordered the applicant \u2019s medical assessment by a panel of experts .","On DATE ORG found the diagnosis of the closed chest injury unfounded . They confirmed , however , that on CARDINAL DATE the applicant had had the following injuries : a haemorrhage of the left ankle and contusion of soft tissue on the left arm , which qualified as light bodily injuries , and a haemorrhage of the right ankle and a closed fracture of the right ankle , which qualified as bodily injuries of \u201c intermediate \u201d gravity . Based on the available documents it was not possible to establish the exact date of the infliction of these injuries , however , their infliction in the period between CARDINAL and CARDINAL DATE was not improbable .","By DATE the proceedings in respect of PERSON , the alleged perpetrator of the murder , were terminated for want of evidence of his involvement . As of DATE the proceedings in respect of the applicant and ORG were still pending .","NORP The relevant provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . GPE , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) ."],"violated_articles":["3","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78627","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"YAVUZ AND OTHERS v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , Mr PERSON , Mr PERSON and PERSON , are NORP nationals who were born in DATE , DATE and DATE , respectively , and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG did not designate an Agent for the purpose of the proceedings before the ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicants were taken into police custody by policemen from ORG of ORG on suspicion of membership of the illegal ORG ( ORG ) . Subsequently , their houses were searched and the incident reports were signed by the applicants . During the search , the police found documents relating to the ORG . Magazines published by the ORG were also found in the first applicant \u2019s house .","On DATE the applicants signed forms whereby their rights as detainees were explained to them . The forms included their right to inform one of their relatives about their detention and their right to request the assistance of a lawyer .","According to the custody records ( nezaret kay\u0131t defteri ) , the police informed PERSON ( the wife of the first applicant ) , PERSON ( the wife of the second applicant ) and Mr PERSON ( the brother of the third applicant ) about the applicants\u2019 detention . Moreover , it was noted in these records that the applicants did not request the assistance of a lawyer .","In their police statements , the applicants accepted the charges against them . The first applicant gave a detailed description of his role in the ORG .","On DATE the applicants were questioned by ORG . Before the public prosecutor , the applicants denied the charges against them and refuted the statements they had made to the police . The same day the applicants were brought before an investigating judge at ORG . They confirmed the statements which they had made to the public prosecutor . The court ordered the detention on remand of the first CARDINAL applicants and released the third applicant .","By an indictment dated DATE , the public prosecutor initiated criminal proceedings against the applicants in ORG . The first applicant was accused of membership of the ORG and the last CARDINAL applicants were accused of aiding and abetting that organisation . The applicants were represented by their lawyers during the domestic proceedings .","On DATE , taking into account the illegal documents found in his house , the witness testimonies that confirmed his involvement in the illegal organisation and recalling the fact that he had been previously convicted of aiding and abetting the ORG in DATE , ORG found the first applicant guilty of being a member of the ORG . It accordingly sentenced him to DATE and CARDINAL months\u2019 imprisonment under LAW . The court further acquitted the second and third applicants of the charges against them .","The first applicant appealed . On DATE ORG , upholding ORG reasoning and assessment of evidence , rejected the applicant \u2019s appeal .","The third paragraph of LAW , as amended by PERSON no . CARDINAL of DATE , provides that , when a person is arrested , a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period by the public prosecutor ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61813","languageisocode":"ENG","respondent":"ISL","branch":"CHAMBER","date":2004,"docname":"CASE OF HILDA HAFSTEINSDOTTIR v. ICELAND","importance":2,"conclusion":"Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Gaukur J\u00f6rundsson;Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","Her complaints under the Convention stem from her arrest and detention in police custody in PERSON on CARDINAL occasions as described below .","The applicant was arrested and held on remand in police custody on QUANTITY occasions on different dates DATE and DATE . Each time , she spent TIME in a cell and was released in TIME . Further details about these events are given in the police reports compiled by the responsible police officers for the Reykjav\u00edk Police Commissioner and are set out below .","( i ) In TIME DATE at TIME , the applicant went to a local police station in a PERSON suburb accompanied by CARDINAL taxi drivers . Although she only had ORG CARDINAL in her possession , the taxi fare amounted to ISK CARDINAL . According to a police report ( signed by Police Officer PERSON ) , the taxi drivers had stated that \u201c they had been driving [ the applicant ] during TIME , but since she had refused to pay they had driven her to the nearest police station . \u201d The police report further stated that she was \u201c obviously drunk and agitated \u201d and that she was \u201c very agitated , foul - mouthed and disruptive . \u201d The applicant was then transferred to ORG where she was , on the decision of ORG , detained in custody until TIME .","A further police report of DATE ( signed by PERSON ) relating to a police interrogation TIME at TIME stated that the reasons for her \u201c being summoned [ had ] been explained to her \u201d , namely a \u201c case ... concerning taxi fraud , intoxication , etc . \u201d She had replied inter alia that she had intended to pay her fare to the driver in an amount of ISK CARDINAL when returning home , but had refused to pay an invoice of ISK CARDINAL , which she would only pay after consultation with her lawyer . She expressed surprise over the fact that not only had she been subjected to a string of accusations by the police but also she had been held in detention without being given any reasons . She was released at TIME","( ii ) On DATE at TIME , the applicant arrived at the PERSON police headquarters at GPE . A police report ( signed by ORG ) entitled \u201c Intoxication and detention \u201d , described the applicant 's condition as \u201c Very obviously drunk \u201d and gave \u201c Drunken behaviour \u201d as the reason for her arrest . The report included the following passage :","\u201c As far as she could make herself understood she had arrived by taxi and there was some dispute between her and the driver . The driver and the taxi were nowhere to be seen .","[ After the police inspector had ] talked with PERSON for a while it became clear that the cause of the dispute no longer existed . She suddenly began to stride about in the corridors and the personnel lounge of the police station , confronting the police personnel present and exhibiting drunken behaviour . She would not calm down despite repeated requests and finally it became necessary to restrain her by placing her in police custody . \u201d","According to the Government , the police had repeatedly requested the applicant to desist and to leave the police station but , as these requests were ignored , she was placed in police custody as a last resort . Since the relevant hand - written card file was no longer available , the time of her release could not be confirmed .","( iii ) On DATE at TIME , the applicant went again to the PERSON police headquarters . A police report ( signed by Police Officer PERSON and addressed to the Police Commissioner ) entitled \u201c Intoxication , arrest and detention in police custody \u201d was drawn up on her arrival :","\u201c PERSON arrived at the police guardroom in a state of heavy intoxication . It was not clear what she wanted ; to a large extent she was incoherent . She was abusive and threatened to assault the police officers present at the station .","Police Officers nos . CARDINAL and CARDINAL brought her to the detention facility ... where Inspector PERSON interviewed her .","PERSON was given the opportunity to leave freely , which she flatly refused . When her overcoat was being removed from the cell , she lashed out at her surroundings with a leather belt without , however , hurting anybody ... \u201d","The report described the applicant 's condition as \u201c very obviously drunk \u201d and indicated \u201c intoxication and aggressive behaviour \u201d as the reasons for her arrest , which decision was taken by Inspector PERSON","According to an entry in a more recent computerised police custody record , her detention lasted from TIME until TIME DATE . The reason for her detention was recorded as : \u201c Alcoholic Beverages Act , drunkenness in a public place ( section DATE [ see paragraph CARDINAL below ] ) \u201d .","( iv ) On DATE at TIME , the applicant went to the same police station . The relevant police report ( signed by Police Officer PERSON ) , entitled \u201c Intoxication , improper behaviour , and detention in police custody \u201d , stated that her visit did not seem have any purpose and that she was very obviously drunk . Before she could be stopped , she had burst into the office of the inspector in charge and addressed him in derogatory terms as a \u201c son of a bitch \u201d and a \u201c eunuch \u201d . She was then arrested and held in police custody . The reason for her arrest according to the police report was that she had directed a stream of verbal abuse at the inspector . The decision had been taken by Inspector PERSON","The relevant custody record indicated that the applicant had been held in detention from TIME until TIME . The reason for her detention was registered as : \u201c policemen ; violent behaviour towards policemen ( CARDINAL - CARDINAL ) \u201d . The reference in brackets appears to be Articles CARDINAL and CARDINAL of GPE ( see paragraphs CARDINAL below ) .","A police note dated DATE suggests that the applicant was offered , but refused , a judicial settlement of the matter .","( v ) On DATE at TIME the applicant once again went to the police headquarters in PERSON . The police report concerning the incident ( signed by Police Officer PERSON ) , stated that she was very obviously intoxicated and agitated and that she made a habit of visiting the police station when under the influence of alcohol . Moreover , she had made a lot of noise , including calling out the names of various police officers . Her noises and screams increased to the point of disturbing the peace required for the work of the station . The applicant grabbed a waste bin standing at the entrance to the police station and prepared herself to throw PERSON who was helping a man to wash blood off his face . The applicant slammed the bin onto the floor with a loud bang when the policeman raised his hand in order to protect himself . The applicant had been ordered many times to leave the station , but to no avail . Instead , without permission , she had entered a corridor at the station and reached the personnel lounge , while carrying a glass containing a liquor mixture . According to PERSON , she had threatened Assistant Inspector GPE and had become very agitated when kindly requested to stop screaming and to leave the station .","When she refused to leave she was arrested and brought to the detention facility . The decision was taken by Inspector PERSON The police report stated the reason for her arrest as \u201c state of intoxication etc . \u201d According to the relevant custody record she was detained from TIME until TIME . The reason for her detention was recorded as \u201c Alcoholic Beverages Act , drunkenness in a public place ( section DATE ) . \u201d","( vi ) On DATE at TIME , the police was called to FAC in PERSON . According to the relevant police report ( signed by Police Officer PERSON ) , when the police arrived the applicant had been restrained by the hotel staff . She was very obviously intoxicated and agitated . The applicant was arrested and taken into custody for \u201c intoxication \u201d . The decision was taken by Assistant Inspector GPE According to the relevant custody record ( dated DATE ) the applicant was detained from TIME until TIME . The reason for her detention was registered as \u201c Alcoholic Beverages Act , drunkenness in a public place ( section DATE ) . \u201d","The Government further submitted various pieces of evidence described below .","It included QUANTITY police reports of CARDINAL DATE and DATE respectively , concerning refusals by the applicant to pay taxi fares . Another report , dated DATE , stated that she had been ordered to leave a police station while in an intoxicated state but had left the station after having damaged a toilet and insulted a police officer with offensive language . TIME she had for no apparent reason disturbed the police by repeatedly telephoning the police assistance and emergency number .","On DATE Chief Inspector PERSON complained to ORG that the applicant had sent him gifts and harassed him repeatedly with phone calls both at work and at home . Once she had gone to his home and harassed his pregnant daughter . On DATE the Prosecutor General replied that following an investigation by ORG , further measures by the prosecution service were not deemed justified .","On DATE ORG informed the applicant and the PERSON Police Commissioner that no further measures would be taken with respect to the above complaint of CARDINAL DATE .","On DATE counsel for the applicant , PERSON , requested the Prosecutor General to order ORG to investigate the applicant 's complaints against various police officers , notably in relation to events on DATE and DATE . Such an investigation had previously been refused by ORG on DATE . On DATE the Prosecutor General replied that the authority saw no reason to order an investigation . On DATE a similar reply was given in relation to another complaint by the applicant concerning events on CARDINAL DATE .","On DATE the applicant petitioned ORG asking for a statement of the reasons for the refusal of her requests for an investigation . On DATE the ORG concluded :","\" It is clear from the case file that you and the police differ considerably as to the manner in which the police officers dealt with you on the said dates and the events preceding these incidents . I do not find that a resolution of a dispute of this kind is within the purview of ORG and , consequently , conclude that there are no grounds for me to consider the matter raised in your petition any further . \"","By a letter to the applicant dated DATE , the PERSON police informed her that no further action would be taken regarding the matter , referring to CARDINAL reports related to the incidents mentioned in paragraph CARDINAL above .","On DATE the applicant instituted civil proceedings against ORG claiming compensation for the damage which she had suffered as a result of having been unlawfully arrested and detained by the police as well as for harassment .","After a first set of proceedings ORG ordered ORG in PERSON to re - examine the case with an oral hearing .","By a judgment of DATE ORG found that the applicant 's claim was time - barred pursuant to the DATE time limit laid down in LAW .","On an appeal by the applicant ORG overturned ORG finding by judgment of DATE . After an examination of the merits it nevertheless found for the ORG , giving the following reasons :","\u201c ... The judgment under appeal refers to CARDINAL events which occurred during the period from DATE to [ DATE ] . According to the police reports , on each occasion the [ applicant ] was arrested and detained on remand because she was intoxicated and agitated and could not be calmed down . The police reports relate how she acted disruptively at the police station , being verbally abusive or behaving in a drunken manner , and that she was placed in a detention cell in order to restrain her . From these descriptions , which have not been refuted , it is clear that the police had good cause and sufficient reason to commit the applicant to a detention cell for a short period of time , cf . the main rule in LAW , no . DATE then in force , and ORG and CARDINAL of LAW , no . PERSON ; and the respondent 's view that no other remedy was available in the circumstances must be upheld . Consequently , the [ applicant 's ] claim for compensation lacks legal basis and , for that reason alone , the respondent must be released from her claim . ... \u201d","The applicant submitted a medical certificate dated DATE , which included the following :","\u201c ... For DATE I , the undersigned , have acted as the [ applicant 's ] general practitioner . During this period , nothing has occurred which would indicate that she has had alcohol related problems . Nor do the reports from her previous doctors give any reason to believe that she has had such problems . ... \u201d","Article CARDINAL of the Code of Criminal Procedure , as in force at the material time ( CARDINAL ) , read :","\u201c Police officers shall be vigilant in their work and be clearly aware of the responsibility it entails . Their role is to uphold the law and order , to assist the public , as appropriate , to take measures against unlawful conduct and to work towards detecting criminal offences that are committed and to provide every assistance to official investigators . .... \u201d","Articles CARDINAL and CARDINAL of LAW ( no . PERSON ) provided :","Article CARDINAL","\u201c ' Public place ' in this GPE means streets and places intended for use by the public . The provisions on public places apply also , if appropriate , to other places open to the public - stores , restaurants , parking places , bus shelters , museums , etc . \u201d","Article CARDINAL","\u201c Breaches of the peace , fights , disorderly conduct or other behaviour that disturb the peace in public places shall be prohibited , and the public shall not assemble in groups in public places if doing so interferes with traffic or causes inconvenience to passers - by .","In public places , no one may harass others or indulge in unseemly behaviour . \u201d","The above provisions had a statutory basis in LAW CARDINAL of DATE , section CARDINAL of which stipulated :","\u201c A police ordinance shall contain provisions on such matters as may be required in the circumstances obtaining in each place :","( a ) On order and good behaviour on the streets , roads and places to which the public has access , on all measures that are necessary in order to facilitate or prevent obstruction to traffic , on all matters that may cause danger , on the preservation and protection of public property , on public order in restaurants and places of entertainment accessible to the general public or public gatherings such as tournaments . ... \u201d","Section CARDINAL provided that a breach of police ordinances adopted under LAW was punishable by a fine .","Article CARDINAL of the Code of Criminal Procedure contains the following provisions regarding arrest :","\u201c The police shall make an arrest if ordered by a judge . The police may also make arrests without a judicial warrant :","NORP if they observe a person committing a punishable act , provided the act is subject to public indictment ;","NORP if a person is suspected of having committed an offence and does not provide police with information as to his name and address , or if he is a vagrant ;","NORP if the arrest of a suspected person is deemed necessary for the protection of others ;","NORP if an arrest is deemed necessary for preventing a suspected person from destroying evidence , leaving the police district or otherwise obstructing an investigation and it is not thought advisable to wait for a judicial warrant ;","NORP if a person has escaped from custody or evaded lawfully ordered supervision ;","NORP if a person has , unless he was prevented from so doing , failed to act upon a police summons to provide a statement in a criminal case , or","NORP if a person loses control in a public place or causes public outrage , or does not have permission to remain in GPE .","In each case a police officer shall assess the need for immediate arrest , for example on account of the danger of concealment of evidence , escape of an offender , continuation of criminal conduct , etc . \u201d","At the relevant time , LAW DATE ( later replaced by Act CARDINAL ) included in its Sections CARDINAL and CARDINAL provisions to the effect that any person causing disorder , danger or disgrace in a public place in breach of the LAW or a regulation issued under it was punishable by payment of \u201c fines , punitive custody or imprisonment for DATE \u201d .","Assault and threatening behaviour committed against a public servant in the performance of his or her official duties constituted a criminal offence under ORG CARDINAL and CARDINAL of the DATE LAW .","The Government submitted extracts from CARDINAL instructions applicable to the case : ( CARDINAL ) Announcement by the PERSON Police Commissioner No . PERSON on Rules for Police Officers and Wardens Concerning Treatment of Arrested Persons , Accommodation of Detainees , etc ( hereinafter referred to as \u201c the CARDINAL Rules \u201d ) ; ( CARDINAL ) General Rules of the PERSON Police Commissioner of DATE on ORG and the Treatment of Arrested Persons ( hereinafter referred to as the \u201c DATE Rules \u201d ) , and ( CARDINAL ) General instructions of the PERSON Police Commissioner on LAW , an excerpt from an information booklet for police personnel , issued on DATE .","The DATE Rules provided that in carrying out an arrest no more force should be applied than necessary ( Article CARDINAL ) . An arrested person who was in a state of unconsciousness or similar condition should be taken to hospital ( DATE ) . A police officer who had carried out an arrest had to draw up a detailed report which should indicate the state of intoxication and the reasons for arrest ( LAW . The DATE Rules further contained provisions on notification of relatives under DATE and , if appropriate , the households of persons arrested for being intoxicated ( DATE ) . An arrested person under the age of DATE should in principle not be detained in a closed cell but should be kept in an open room under the care of the police until brought home or fetched by a relative ( Article CARDINAL ) .","Article CARDINAL provided :","\u201c The inspector shall decide whether an intoxicated person who has been arrested shall be detained or whether any other measures shall be taken . \u201d","LAW read :","\u201c The inspector shall decide when a person shall be released from detention . If a person has been detained for some reason other than intoxication , he shall not be released except with the approval of a judge or the investigating officer in charge of his case . \u201d","The DATE Rules further contained provisions ( Articles CARDINAL to CARDINAL to CARDINAL ) relating to such matters as hygiene and safety , limitations on the number of persons per cell , the frequency of cell patrols ( at intervals not exceeding CARDINAL minutes ) .","Provisions largely similar to those described above were included in the CARDINAL Rules , which replaced the CARDINAL Rules on DATE . For instance , under LAW , LAW , decisions on detention should be taken by or under the supervision of a police inspector , and the inspector was to decide when a person detained on account of intoxication was to be released . Unlike the CARDINAL Rules , however , the CARDINAL Rules stated in LAW A the criteria on which the police should base its decision to place a person in detention :","A.CARDINAL .","That the condition of the person in question is such as to be a danger to himself or to others , or that another dangerous situation may arise if he is allowed to remain free , or if the person may cause damage to property . Also if a person , as a result of the use of alcohol or other intoxicating substances , causes public outrage or disorder or significant disturbance or inconvenience , provided the situation is highly likely to persist if he remains free .","The DATE Rules also specified in what circumstances detention would not be justified :","A.CARDINAL .","In cases involving intoxication only , when measures other than detention can be taken , for example taking a person home .","According to the Government , when a person was committed to a detention cell on the basis of Section A.CARDINAL , the police would decide on the time of release by assessing when the condition warranting detention had ceased . Generally in police practice that meant that detention would last for the relatively short period it took for the inebriating effects of alcohol to wear off , or for a person in a highly agitated state of mind to calm down , thereby reducing the likelihood of a continuation of the conduct that gave rise to the measure .","The Government added that the police were chiefly involved with intoxicated persons TIME and at DATE , for example due to drinking lasting DATE . It was common in such cases for the intoxicated person , after having fallen asleep in the cell , to be released in TIME when the immediate effects of his or her drinking had worn off .","The General Instructions on Arrest of DATE set out , inter alia , the duty of discretion and diligence to be observed by the police as well as the obligation to use no more force than necessary in making an arrest .","Compensation from the ORG for unlawful detention was available under LAW , subject to the time - limits set out in LAW","Article CARDINAL","\u201c By way of judgment , an award of compensation may be made with respect to arrest , personal search , a medical examination or any other measure involving interference with liberty , other than detention on remand and imprisonment under ORG CARDINAL and CARDINAL , as well as with respect to house search and seizure :","NORP if the conditions provided for by law for the taking of such measures were not fulfilled ;","NORP if the circumstances did not provide a sufficient reason for taking the measures in question , or if they were taken in an unnecessarily dangerous , harmful or offensive manner . \u201d","Article CARDINAL","\u201c The right to compensation shall lapse on DATE after the date on which the person concerned became aware of a decision to discontinue the investigation or not to prosecute , was acquitted , or was released from punitive custody or imprisonment . If a criminal case has been subject to appeal to ORG , the period shall be counted from the date of ORG judgment . \u201d","According to the Government , there were no instances of any compensation proceedings having been brought by a person on account of his or her having been detained on grounds of being drunk and disorderly in a public place .","With effect from DATE a new LAW . CARDINAL\/CARDINAL ) replaced LAW . By virtue of LAW , subparagraph ( e ) , the police could arrest a person who lost control in a public place , or caused public outrage or a danger of public disturbance .","Subsequently , the provisions on arrests in the interests of public peace and order ( i.e. arrests that did not directly relate to a criminal investigation ) were removed from LAW and incorporated in LAW ( No . CARDINAL ) , which entered into force on DATE . The new provisions reproduced former LAW and codified some of the rules previously found in customary police powers and police instructions , notably the limited powers conferred on the police ( by a so - called general mandate ) to take such measures as are necessary to maintain law and order and the rule of proportionality applying to the use of force . Sections CARDINAL contain the following provisions :","Section CARDINAL - Use of force","Persons who exercise police powers may use force in the course of their duties . At no time , however , may they use force to any greater extent than necessary on each given occasion .","Section CARDINAL","Measures taken in the interests of public peace and quiet , public order , etc .","NORP The police may intervene in the conduct of citizens in order to maintain public peace and quiet and public order or to prevent an imminent disturbance in order to protect the safety of individuals or the public or to avert or put a stop to criminal offences .","NORP For this purpose , the police may , among other things , take over the control of traffic , prohibit persons from remaining in particular places ( e.g. by cordoning the areas off or restricting movement through them ) , seize dangerous items , order people to move away , or remove them , order an end or a change to actions or an activity , enter privately - owned areas and order the removal of persons from such places .","NORP If a person disobeys police instructions under paragraph CARDINAL , the police may take the necessary measures at the person 's expense to prevent his disobedience causing damage or injury or constituting a hazard to the public .","NORP The police may require any person to give his name , ID number and address , and to present an identification document to substantiate the information given .","NORP The police may concern themselves with matters which by law come under other authorities if it is considered necessary to stop or prevent a serious disturbance of public peace and quiet and public order and it is not possible to contact the relevant authority or it is impossible for it to take measures , or if such measures are ineffective or it is foreseeable that they would be taken too late . The appropriate authority shall be informed of the police 's actions as soon as possible .","Section CARDINAL - Power to make arrests","A person exercising police powers may arrest a person and take him to a police station or other place where the police have facilities :","a. for the purpose of maintaining law and order , for example if the person loses control or causes public outrage in a public place or a danger of public disturbance ,","b. if he does not hold a permit to remain in the country .","NORP The police shall explain to the person the reason why he is being taken to the police facility . No person may be held for longer than is necessary ."],"violated_articles":["5"],"violated_paragraphs":["5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67820","languageisocode":"ENG","respondent":"GRC","branch":"GRANDCHAMBER","date":2004,"docname":"CASE OF MAKARATZIS v. GREECE","importance":1,"conclusion":"Violation of Art. 2 with regard to the failure to protect the right to life;Violation of Art. 2 with regard to the lack of an effective investigation;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney","text":["The applicant was born in DATE and lives in GPE .","In TIME of CARDINAL DATE the police tried to stop the applicant , who had driven through a red traffic light in the centre of GPE , near the NORP embassy . Instead of stopping , the applicant accelerated . He was chased by several police officers in cars and on motorcycles . During the pursuit , the applicant \u2019s car collided with several other vehicles . CARDINAL drivers were injured . After the applicant had broken through QUANTITY police roadblocks , the police officers started firing at his car . The applicant alleged that the police were firing at the car \u2019s cab , whereas the Government maintained that they were aiming at the tyres .","Eventually , the applicant stopped at a petrol station , but did not get out . The police officers continued firing . The applicant alleged that the policemen knelt down and fired at him , whereas the ORG maintained that they were firing in the air , in particular because there were petrol pumps in danger of exploding . CARDINAL of the police officers threw a pot at the windscreen . Finally , the applicant was arrested by a police officer who managed to break into the car . The applicant claimed that he was shot on the sole of his foot while being dragged out of his car . The Government contested that claim , referring to the findings of the domestic court ( see paragraph CARDINAL below ) . The applicant was immediately driven to hospital , where he remained for DATE . He was injured on the right arm , the right foot , the left buttock and the right side of the chest . CARDINAL bullet was removed from his foot and another one is still inside his buttock . The applicant \u2019s mental health , which had broken down in the past , has deteriorated considerably since the incident .","Following the incident , an administrative investigation was carried out by the police . CARDINAL of the police officers who had taken part in the chase were identified . There were also other policemen who had participated in the incident of their own accord and who had left the scene without identifying themselves and without handing in their weapons . In total , CARDINAL sworn witness statements were taken . Laboratory tests were conducted in order to examine QUANTITY police firearms , CARDINAL bullets and QUANTITY metal fragments . The applicant \u2019s car was also examined .","On DATE the police laboratory issued a report which contained the following findings :","\u201c ... The car that has been examined is severely damaged due to collisions \/ crashes , but also to bullets ... At the front , there is damage to the car \u2019s windscreen , where there are CARDINAL holes and a mark ... Bullets , directed from the inside of the car outwards , caused the CARDINAL holes as well as the mark . From the general damage to the car ( the rear window is broken and has collapsed ) , the location of the examined damage and the course ( direction ) of the bullets that caused it , it may be assumed that the bullets in question broke through the rear window and ended up hitting the windscreen , producing the holes and the mark .","... The rear window is broken and has collapsed . Because of its total destruction , it is not possible to determine exactly why it broke . From the rest of the findings ( the damage to the windscreen , etc . ) it may be assumed that bullets were responsible ... The trajectory of the bullets that caused the holes is from the rear of the car towards the front ... The shape and size of the holes suggest that the bullets were fired by a CARDINAL mm calibre firearm .","... On the driver \u2019s side of the car , there is a mark on the rear wing , near the wheel ; its dimensions are approximately CARDINAL x CARDINAL PERSON . From the shape of the mark it may be assumed that the bullet that caused it came from the rear of the car towards the front , with an upward trajectory . On the right - hand side of the car , the window of the front passenger \u2019s door is broken .","There is a bump on the roof of the car , and a corresponding hole in the upholstery inside . This has been caused by a bullet that travelled upwards from the rear of the car towards the front . It may be assumed that the bullet entered the car through the rear window ... \u201d","\u201c In total , CARDINAL revolvers , CARDINAL pistols , CARDINAL submachine guns and CARDINAL bullets were sent to us ... CARDINAL of the weapons are revolvers of CARDINAL Magnum calibre ; CARDINAL are pistols , CARDINAL of which are of CARDINAL PERSON calibre and CARDINAL of CARDINAL ACP calibre ; and CARDINAL are ORG MP CARDINAL submachine guns of CARDINAL PERSON calibre . The serial numbers of the weapons , their make and the names of the police officers to whom they belong are indicated in the above - mentioned document as well as in the delivery and confiscation reports of CARDINAL and DATE of the NORP GPE police station , copies of which are attached to this report . We performed the same number of trial shots with the CARDINAL weapons , using CARDINAL cartridges in each case . All the weapons functioned properly . The spent cartridges and bullets for each weapon were put into plastic envelopes for identification purposes , and each envelope was marked with the distinctive characteristics of the weapon .","... CARDINAL of the CARDINAL bullets were found in the car and the third was surgically removed from the first metatarsal of the injured driver \u2019s right foot . For identification purposes , the bullets were marked \u2018 PBCARDINAL\/CARDINAL\u2019 ( for the bullet from the injured person \u2019s body ) and \u2018 PBCARDINAL and ORG for the bullets found in the car ) . They will be regarded as evidence ... The heads and cylindrical surfaces of all CARDINAL bullets are more or less deformed as a result of hitting hard surfaces , and have broken sabots and parts missing . The average diameter of the bullet bases is QUANTITY . From the measurements and their characteristics it is surmised that the bullets come from CARDINAL PERSON cartridges ( CARDINAL x CARDINAL ) . These kinds of cartridges are fired mainly by pistols and submachine guns of the same calibre ... \u201d","\u201c ... CARDINAL holes were found on the car , caused by the direct impact of the same number of bullets . It is assumed that the bullets that caused the holes were fired by CARDINAL mm calibre weapons . Inside the car , there are holes due to secondary impact and ricochets from some of the above bullets .","... The exhibit bullet \u2018 PBCARDINAL\u2019 and the bullets the metal sabots \u2018 PPCARDINAL\u2019 and \u2018 LOC come from were fired by the ORG MP CARDINAL submachine gun no . CCARDINAL .","... The exhibit the metal sabot \u2018 PPCARDINAL\u2019 comes from was fired by the FAC pistol no . LOC .","... The exhibit bullet \u2018 GPE that was removed from the injured driver \u2019s body and the bullet \u2018 PBCARDINAL\u2019 that was found in the car have a PERSON ( CARDINAL x CARDINAL ) calibre and were fired by the same weapon of the same calibre . Despite being deformed , the CARDINAL bullets exhibit sufficient and reliable traces from the inner part of the weapon barrel from which they were fired ; comparison of these traces has led to the conclusion that they are identical . Comparative tests of the traces on these CARDINAL bullets and those on the sample bullets fired with the examined QUANTITY calibre weapons ( see above ) have not disclosed any similarities , which leads to the conclusion that the bullets in question were not fired by any of these weapons ... \u201d","Following the administrative investigation , the public prosecutor instituted criminal proceedings against CARDINAL police officers ( PERSON PERSON , PERSON , PERSON , PERSON , PERSON , PERSON GPE and Mr PERSON ) for causing serious bodily harm ( Articles CARDINAL \u00a7 CARDINAL ( a ) and CARDINAL of LAW ) and unauthorised use of weapons ( section CARDINAL of Law no . DATE ) . At a later stage , the applicant joined the proceedings as a civil party claiming a specific amount by way of damages .","The trial of the QUANTITY police officers took place on DATE before the Athens First - Instance Criminal Court . The applicant \u2019s statement was taken down as follows :","\u201c I was on FAC . I turned right at the traffic lights , and saw CARDINAL police officers in front of me on FAC . I was driving at a high speed and I could n\u2019t stop immediately . I moved a little to the left , and they immediately started firing at me . I was afraid , I thought they wanted to kill me , so I accelerated and drove off . They chased me and fired constantly . I moved into the oncoming lane and hit some cars . I was very scared . I had recently been in hospital for depression . I stopped at a petrol station and , while I was taking off my seat belt , I opened the door a little and they injured my arm and chest . They pulled me out of the car ; a police officer injured me again , on the leg , and put handcuffs on me . I heard banging noises on the car , but I do n\u2019t know what they were . There were gunshots coming from everywhere , also from above . I do n\u2019t know exactly who injured me . I did n\u2019t have a weapon . I never carry a weapon . They took me to ORG . A chief officer of police came and brought me a document to sign , but I did n\u2019t sign it because I did n\u2019t know what they had written in it . This happened at the same place where they took QUANTITY of blood from me . They removed the bullet from my leg without anaesthetic . It was very painful ; I do n\u2019t know why they did this . I had internal bleeding and the doctors said it was from my teeth . My father obtained a paper from the public prosecutor so that he could take me from ORG to the ORG ( centre for rehabilitation following injury ) . A bullet has remained in my lung and the other bullet has caused an internal wound below my waist . The first gunshot was on FAC . Perhaps they were looking for something ; perhaps they thought I was someone else . I drove towards PERSON . They fired at me during the entire chase . When they pulled me out of the car , they made me lie on the ground , shot at me and then put handcuffs on me . It was then that they shot me in the foot . After the incident I suffered from psychological shock and was admitted to ORG . I am still receiving medical attention from [ another hospital ] and I take medication . Before the incident I worked as a plasterer . Since then I have n\u2019t been able to work . I have never in my life held a gun , apart from when I was in the army , where I served normally . There was no roadblock on FAC . I saw QUANTITY police officers . CARDINAL of them waved at me to stop and the other pointed his weapon at me . I was frightened because of the weapon and I did n\u2019t stop immediately . After some time they started firing at me . I do n\u2019t remember whether I noticed a police car or not near FAC . When I reached ORG , they had their sirens on and they were following me and firing at me . I moved into the oncoming lane . I wanted to get home quickly . In FAC there was a police roadblock . I did n\u2019t take any notice of it . On FAC there was another roadblock . I did n\u2019t take any notice of that one either . Further down , at some traffic lights , I wove my way through the traffic in order to get away . I remember colliding sideways with someone , not head on . I do n\u2019t remember causing a car to turn over . I do n\u2019t remember a seeing a roadblock on FAC . I do n\u2019t remember if they were shooting at me there . I stopped at the petrol station because I had already been hit by a bullet and I was in pain . Besides , there were a lot people there and I was n\u2019t so scared . I stopped and tried to unbuckle my seat belt . Right then , I felt bullets in my back . The windows were broken . A police officer came , pulled me out and , while I was lying on my side , face down , they shot me in the foot . I do n\u2019t know which CARDINAL of them shot me . I did n\u2019t see who shot me because I was lying face down . Before the incident I had been in hospital once only , for minor depression . After the incident I developed persecution mania . Before the incident I had only had minor depression . When I was at the petrol station I did not make any movements that could make the police officers think I was carrying a weapon . \u201d","The GPE statements were taken down as follows :","\u201c I was in police car no . ORG . We were in the NORP GPE area . We heard about the chase on the radio . We arranged with the control centre to create traffic congestion at the beginning of the road close to GPE . We positioned the police car sideways across the road , facing the sea . I also stopped some civilian cars in order to block the road . Suddenly I saw flashing lights , sirens and a car at a distance of QUANTITY coming towards me . The driver moved to the right of the street that leads to the marina and drove past me at a distance of QUANTITY ; I even jumped out of the way so that he would n\u2019t run me over . Motorcycles and police cars drove past , following at a distance of QUANTITY . There were no gunshots fired by anyone there . We got in the car and followed the other police cars at a distance of QUANTITY . I remember seeing a red car that had skidded on to the barrier . We lost control briefly , then continued driving . I heard gunshots after seeing the car that was turned upside down on FAC . I used my weapon later . We followed the fugitive \u2019s course . When we reached FAC , we heard gunshots again . We went towards the petrol station . I got out of the car , there was chaos everywhere , and I heard gunshots . Some colleagues had ducked , others were on the ground , others were taking cover . I did n\u2019t know where the gunshots were coming from . They could also have been coming from the ORG [ the applicant \u2019s car ] . I saw some of my colleagues firing in the air . Then I fired two shots in the air and threw myself to the ground . I was QUANTITY away from the car . I did n\u2019t get close to fire the shots , because there was a block of flats nearby . I heard the shouts of the colleagues who were telling the driver to get out of the car . Finally , I saw the police officers who were at the front walking freely and I realised the incident was over . I believe that the weapons of the colleagues who were summoned , or who had notified the control centre , were checked . From where I was standing , I could n\u2019t see the victim in the car . \u201d","\u201c Since TIME , we had been on duty at the B department of ORG . We heard on the radio that a chase was in progress , starting from the NORP embassy , of a car which had almost run over QUANTITY pedestrians and a traffic warden . We followed the car . Near GPE we saw that the police had formed a roadblock . PERSON was using his whistle to stop the cars . The ORG drove over to the right , to the side street , and then suddenly turned left . PERSON jumped out of the way instinctively , and the ORG passed very near him . At Rodeo there was a roadblock similar to the one where PERSON was . The victim hit a red car and caused it to turn upside down . The radio of the first police car informed us of the course the ORG was taking . As we approached the junction of Posidonos and PERSON and we were QUANTITY behind , I heard the first gunshots . We continued driving and entered FAC . There were some police cars ahead of us . Among them , there may have been some that had not been called but had come on their own initiative . When we arrived , I got out of the police car and went towards the vehicle that was being chased . Other colleagues kept calling to the driver to get out of the car . He did n\u2019t get out . I heard someone say , \u2018 Let \u2019s fire some shots to intimidate him\u2019 , and I took my weapon out and shot twice in the air . CARDINAL of my colleagues took advantage of a break in the shooting to pull the driver out of the car . I was QUANTITY away from the ORG , or CARDINAL ; I do n\u2019t remember exactly . The control centre issued a warning that the man was carrying a weapon . I have been in many chases , and this particular individual gave me the impression that he was familiar with this kind of thing . \u201d","\u201c I ride a motorcycle . On FAC we heard on the radio that a chase was in progress from the NORP embassy . Very soon afterwards we heard that the driver had reached ORG . I tried to get on to the central reservation to take up my position and wait for him . I saw the car coming . Risking my life , I got down from the high pavement and followed it . A police car and CARDINAL motorcycles were in pursuit . I heard on the radio that the individual was dangerous and possibly carrying a weapon ; he was driving very dangerously . At the traffic lights on FAC , close to ORG , as we reached the marina of Amfithea and Posidonos , I was struck by his ability to weave in and out of the other cars . I had never seen a chase like this one , although I had spent DATE in the service . At the junction of PERSON and FAC , he collided with a taxi . At the traffic lights at that junction there was a police roadblock . PERSON turned right and entered the side street . He was driving into the oncoming traffic and , having gone past the traffic lights , he turned left and created confusion , because the lights changed and the cars were moving off . I did n\u2019t know whether anyone had been killed , or what was happening . I was still in the right side street . The ORG had been blocked by the other cars , and I shot CARDINAL times in the air to intimidate him . It was impossible to aim at the ORG because it was between other cars . GPE drove off , continued down FAC , drove uphill and , as I was approaching at a distance of QUANTITY , I saw the car at the petrol station . I got off my motorcycle and entered the petrol station from the right . I went into the workshop and shouted \u2018 Everyone move out of the way!\u2019 . I climbed up a staircase and on to the veranda . While I was climbing up the stairs , I heard gunshots . I did n\u2019t know where they were coming from . When I got up there I heard the others calling to the driver to get out of the car . I saw him leaning over to the side and opening the glove compartment , and I assumed that he was going to take out a weapon and shoot . I shouted at the others to be careful because he might have a weapon . I picked up a big pot and threw it at the car . I was watching the driver \u2019s hands , so as to be able to shout and warn my colleagues if I saw him taking something out to throw . \u201d","\u201c PERSON and I set off together . At TIME I was standing in front of the police car . I saw the ORG coming from ORG , going through a red light and almost hitting a couple . I waved to the driver to stop . He drove straight towards me and almost hit me . I jumped aside . No one took out their weapons . I got in the car and we chased him , not only for contravening traffic regulations , but also because he had almost hit me . At FAC we crossed into the oncoming lane and turned right at a red light . We had the flashing lights on and we were driving very fast , but we could n\u2019t locate him . Suddenly , we saw the ORG in front of FAC . We turned on the flashing lights and the siren , and we flashed our lights at him . He saw us from his car , braked and turned on his hazard lights , and suddenly he drove off again at high speed , sounding his horn . He reached PERSON , crossed into the oncoming lane near the flower shops and drove into FAC against the traffic . We turned the flashing lights on again and followed him . We continued driving and notified the control centre . On FAC he almost collided with another police car . At the traffic lights at FAC he went through a red light , crossed into the oncoming lane , hit a car and continued driving . CARDINAL motorcycles came close to him . At GPE , a police car , CARDINAL motorcycles and CARDINAL civilian cars had formed a roadblock . He drove towards the right , mounted the pavement and went past them . At PERSON he caused a ORG to turn upside down . We thought that whoever was in it must be dead . The control centre told the officers on motorcycles to follow him from a distance because of the danger . At Amfithea he collided with a taxi driver , causing him a neck injury ; he later had to wear a collar . He continued down FAC and FAC . He entered the side street and drove against the traffic . He drove past the other cars and crossed over to PERSON . That was where the first gunshots were fired . I leaned out of the left window at the back and shot at the back left tyre of the ORG . The tyre burst . I was certain about the direction of the bullet . I knew that no one was in danger . When a bullet hits a tyre , it does not ricochet . I fired from a distance of QUANTITY . After firing , I saw that the tyre had been punctured . PERSON fired at the right tyre at the back . With his tyres burst , PERSON stopped at the petrol station . We were almost level with him . I acted as a traffic controller . I stopped the oncoming cars , and once the arrest had been made I saw how many police cars there were . There were CARDINAL . When all the police cars were at the petrol station , shots were fired in the air , not at the car . The car had been hit at the junction . There were a lot of policemen . They occupied both lanes of the street . The ORG had to slow down , and they fired at him . I was stopping the cars . If they had aimed at the car when we were at the petrol station , they would have shot me too . I believe all the gunshots , even the ones that hit the windows , were aimed at the tyres . \u201d","\u201c I was at the NORP embassy with GPE . We saw a ORG going through a red light . The traffic warden waved to him to stop . The ORG continued driving towards our colleague , at the risk of hitting him . We got in our car and followed him . He crossed into the oncoming lane and went through a red light at FAC . We lost him and then we suddenly saw him at FAC . We followed him , turned on the flashing lights and waved to him to stop . At the flower shops he turned on his hazard lights as if he were going to stop . Suddenly , he increased his speed and crossed into the oncoming lane on FAC and continued towards PERSON and PERSON . We followed him . Other police cars arrived . At GPE he bypassed a roadblock by driving around the side . At PERSON he caused a ORG to turn upside down and continued on his way . Further down the road there was a roadblock . He collided with a taxi driver and continued on . At the junction of PERSON and NORP Streets there was another roadblock . He turned right into a side street and then turned left , crossing FAC . I heard some gunshots there . We drove to the top of the side street , followed him and , when we reached FAC , we were QUANTITY away from him . I took my weapon out and aimed at his right rear tyre . When you fire shot after shot it is difficult to aim . I put my weapon on to automatic , which makes it fire CARDINAL times . The ORG stopped QUANTITY away , at the petrol station , and we followed . The entire course and his behaviour had seemed extremely dangerous to us , like that of a terrorist . Other police cars and motorcycles arrived . They called to him to get out of the car . He did n\u2019t , and some gunshots were fired . We were QUANTITY behind him . If they did fire from the other police cars directly at him , we were n\u2019t in their line of fire . I heard some colleagues say , \u2018 Let \u2019s fire some gunshots to intimidate him\u2019 . Someone got up on the veranda and threw a pot down . CARDINAL of my colleagues , who was wearing a bullet - proof vest , and whom I did not know , along with someone else , got close , broke the window and called to him to get out . He did n\u2019t , so they pulled him out . CARDINAL of them attempted to put handcuffs on him . Someone shouted \u2018 Careful , he is ORG and they did n\u2019t put them on . The ambulance came . I did n\u2019t know whether he had been injured by a bullet or in a car accident . Neither my weapon nor Souliotis \u2019s fires ORG bullets . The PERSON is very powerful and has a great force of penetration . I do n\u2019t know who said that he was armed and that we should fire in the air . \u201d","\u201c PERSON and I were on duty as instructed at ORG . We received a message to go to PERSON , where a car which had hit other cars and had n\u2019t stopped when signalled to by a traffic warden , etc . , was being chased . We went to PERSON and followed the driver . At GPE he drove through a red light and continued towards the coastal avenue . At GPE we saw a lot of police cars and flashing lights . We remained behind him and , at PERSON , we saw the car that had been turned upside down . We were left a bit behind . At the junction of Posidonos and PERSON we lost him completely . We asked a civilian , who told us that he had turned right and was heading towards FAC , and we headed that way . I heard some gunshots that I thought were coming from the junction of PERSON and FAC . Artificial traffic congestion had been created . The control centre issued a warning that the man was armed and dangerous . We stopped QUANTITY to the right of the petrol station and heard gunshots . We did n\u2019t know whether they were coming from the victim or the police officers because we could n\u2019t see the car . We took cover and heard him being called out of the car . We fired some intimidation shots in order to confuse him , because we knew that a police officer would try to arrest him . \u201d","\u201c PERSON was my chief of crew . We received a message and chased the car , getting close to it at the traffic lights at FAC . At GPE we were falling behind . The driver went through the roadblock that had been set up . At PERSON we saw the car that had been turned upside down . There was a problem with the traffic and we were left behind . At the junction of PERSON and FAC a taxi had been damaged . Further down we heard gunshots . Some civilians told us that the driver had turned left . We followed him . When we got to the petrol station we heard gunshots . Some colleagues were heard shouting , \u2018 Get out\u2019 , \u2018 Be careful\u2019 , and someone else said , \u2018 GPE to intimidate him\u2019 . So I fired two shots to intimidate him . I have served for DATE . I have never seen anything like this . During the chase we heard from the control centre that the individual was extremely dangerous and possibly armed . \u201d","The ORG statements were taken down as follows :","\u201c I am the driver who chased the victim . PERSON , PERSON and I serve in ORG . The victim \u2019s car was considered suspicious . We consider suspicious anything that moves around the NORP embassy . One of my colleagues , who was not carrying a gun , signalled the driver to stop . My other colleague and I waited at a distance , outside the car . Instead of stopping , the driver continued towards my colleague and almost hit him . Then he drove off . We considered him dangerous , and had to chase after him . At first we lost him for a while , but then we spotted him again near FAC . We waved to him to stop . He hesitated for a while , looked as if he was about to stop , but then drove on . At this point we started chasing him with the sirens on . He reached ORG , crossed into the oncoming lane and continued towards PERSON at full speed . We had notified other police cars that were going to PERSON . At some stage he almost collided with a police car . When he reached the coastal avenue , we had already formed a roadblock . He collided with some civilian cars , got away , and drove on . Further down , at PERSON , he collided with a red car and caused it to turn over , and then drove off at full speed . There was traffic in the area . There was a lot of traffic in PERSON and he moved on to the hard shoulder . It was in that area , in PERSON , that we heard gunshots for the first time . Until then we had n\u2019t fired because there was a lot of traffic and we could have injured civilians . We did n\u2019t lose him at any point ; we only almost lost him at the beginning of PERSON , where there was an obstacle on the pavement . Mr PERSON and Mr Souliotis were in the car with me and it was around that area that our colleagues fired at the tyres of the car . I maintain that , with our training , we can hit the target in PERCENT of cases , if not PERCENT . The driver stopped at the petrol station . We moved the civilians out of the way and some other colleagues who were wearing bullet - proof vests approached his car , broke the windows and pulled him out of the car , because they had called to him to get out several times but he had n\u2019t . Gunshots were heard from a distance . I do n\u2019t know where they were coming from . A colleague had gone up on to the veranda , but I do n\u2019t think he fired . He threw a pot at the driver . When the gunshots were fired , the victim \u2019s car was parked sideways on the right of the petrol station . We were at the left of the petrol station and the others were behind me . I do n\u2019t know if others fired at the car . We heard gunshots at the beginning of PERSON , and at the end , when everything was over . The final shots were probably fired to intimidate the victim . [ Officer ] PERSON was the one that pulled him out . I do n\u2019t think he fired at him . There was no reason to do so . The victim made some movements in the car : he moved right and then left , as if looking for something , and it was conceivable that he had a weapon . That is why colleagues wearing bullet - proof vests went to pull him out of the car . I do n\u2019t know about the ballistic investigation . The bullets found inside the car were from the weapons of PERSON and PERSON . However , my colleagues were aiming at the tyres . The speed of the chase was QUANTITY in PERSON and PERSON , because there was traffic . We were QUANTITY behind him . Near the columns [ of FAC ] motorcycles appeared both ahead of us and behind . At the beginning of PERSON another police car came up in front of the victim and he almost collided with it . He was moving from left to right in PERSON , racing at QUANTITY and changing lanes constantly . I ca n\u2019t say which police cars were behind us at the corner of PERSON , because when we chase someone we do n\u2019t see what is going on behind . We stopped at the petrol station ; CARDINAL motorcycles stopped behind us , and another car stopped behind them . The first gunshots were fired at the junction of GPE and PERSON . In FAC , before FAC , when we were QUANTITY behind him , PERSON used his firearm and shot at the tyres of the car . Mr PERSON must have used his weapon too at the same spot . When the driver reached the petrol station and stopped , I called from the car to the civilians to move out of the way and to the driver to get out , and a colleague who was wearing a bullet - proof vest went to pull him out . I do n\u2019t know how many bullets were fired ; the front windscreen broke because a pot was thrown at it . I do not know how the front passenger \u2019s window broke , or how the back window broke . I do n\u2019t know how the victim \u2019s foot was injured . It could n\u2019t have been when shots were fired around the car . Finally , we went to the police station to make a statement . Our lives were n\u2019t directly at risk during the incident . The driver had caused accidents , driven into the oncoming traffic and endangered many people . In total , he had been chased by CARDINAL policemen , whose weapons were confiscated , but others had also got involved . We had never seen anything like it . They told us on the radio to be careful , that the individual was carrying a weapon and might be extremely dangerous . PERSON is a traffic warden . Of course he was not carrying a weapon when he waved to him to stop . The police roadblocks were set up because they had been ordered by the control centre . We also created artificial traffic congestion with civilian cars at the traffic lights . During the incident we noticed that civilians were injured , that cars were turned upside down ; we did n\u2019t have any other way of stopping him , after the roadblocks and the artificial traffic congestion . The last roadblock was on FAC . There were police officers on foot in the side street . He drove straight at them . That was the moment when the first gunshots were fired . That was also the moment when my colleagues first fired from the car at his tyres . It is possible that other weapons were used besides the CARDINAL that were confiscated . For that matter , the bullet that was taken from his leg did not belong to any of the QUANTITY weapons that were confiscated . If someone had fired in the victim \u2019s direction at the petrol station , the petrol would have caught fire . At the petrol station they fired shots in the air . Probably in order to cover the colleague that went to pull him out . CARDINAL of my colleagues climbed up on to the veranda and threw a pot at him to create confusion . PERSON pulled him out and handcuffed him . We saw that he was bleeding and they took him to hospital . The investigation was carried out by our officers and some other department , not by those of us who had gone to the police station . \u201d","\u201c I was on the old coastal avenue in PERSON . I saw a vehicle driving erratically . We got an order from the control centre and went after it . On the way we saw all the accidents , the cars that had been hit and someone who was injured . We reached PERSON from PERSON . We were far behind . We did n\u2019t hear any gunshots . Even if there had been gunshots , we would not have heard them . Mr PERSON , who was with me , had a bullet - proof vest . He put it on , while another colleague broke the window . Mr PERSON pulled the driver out and put handcuffs on him , but when he saw that he had been injured he removed them . The victim was looking right and left ; his hands were on the floor , we could not see them , and we assumed he had a gun . When we reached the petrol station , I heard CARDINAL or CARDINAL gunshots ; I do n\u2019t know where they came from . PERSON and PERSON were with me in the police car . NORP and I did n\u2019t have bullet - proof vests and we did n\u2019t move closer , as PERSON did . There were a lot of police cars and motorcycles . There is no way any weapons could have been concealed or changed hands . Our weapons are given to each of us personally . We do not give them to other colleagues . At the petrol station , when we moved closer so that PERSON could pull the driver out of the car , nobody fired . No colleague could have become involved in the incident without receiving an order , unless someone heard about it and came on his own initiative . If such a person had used his weapon , there is no way he would have left without handing it over . \u201d","\u201c I was the driver of the last police car , where Mr PERSON was . We received an order from the centre and we followed the chase . We were the last to get to the petrol station where the ORG was parked . There were a lot of police cars and motorcycles . Everybody was out of their cars ; the ORG was right next to the pump that is on the right - hand side when facing the petrol station . Everyone was out of their cars ... Mr PERSON put on his bullet - proof vest and I covered him from the back , while behind me there were more officers covering him . When we got there , we heard some gunshots . When we got out of the car and were standing very close to the ORG CARDINAL or CARDINAL gunshots were fired ; they were not fired in my direction , because we were very close to the ORG ... Perhaps the car was hit in the process , I do n\u2019t know . I am not in a position to know at which stage the victim was hit ; probably during the chase ... \u201d","\u201c ... The shots fired at the petrol station were for intimidation . I did n\u2019t see any shots fired at the car , the shots were fired towards the car but in the air , that is , the bullets went up in the air . I do n\u2019t know the [ police officers ] who fired . I had never seen them before . I know GPE and PERSON . The police officer who climbed up on to the veranda did n\u2019t shoot ; he threw a pot . We are bound by our duty and have to follow orders when it comes to the areas we are patrolling , but we do n\u2019t always follow them and often go on our own initiative to the scene of incidents like this one where colleagues are in danger and all manner of things have happened in the past . The entire operation at the petrol station lasted TIME ; the ORG had stopped along the kerb at the petrol station . I parked on the right , I arrived almost at the same time as the men in the first police car , and the rest got there immediately afterwards , one after the other . All the men were holding weapons in their hands . Usually all police cars have a light machine gun . After I got there I took cover behind a column . We called to the driver to get out of the car , and then the shooting began . I do n\u2019t remember even approximately how long afterwards the shooting began . The victim made some movements in the car . The movements he made while he was unlocking the car and all his other movements could have been seen by us as movements to get his weapon out from a holster under his arm , or to take out a hand grenade . At the junction of PERSON and NORP Streets I did n\u2019t notice any shots being fired at the right - hand side of the Skoda , only the ones fired at the tyres on the left - hand side . The first photograph shows that the tyres on the left - hand side are burst , the second CARDINAL shows that the ones on the right are burst . As to the injury to [ the applicant \u2019s ] right foot , it is possible that a bullet that was fired at the tyres ricocheted and penetrated through the metal plate of the car , which is QUANTITY thick . There are bullets that can pierce metal plates of double thickness . In those cars there is no chassis . There are only plain metal plates , which can be pierced by a ricocheting bullet : the victim may have been hit in the buttock in this way . He may have been hit in the armpit area in the same way . At some point I saw him leaning towards the seat ; I thought he might have been hit and I shouted . \u201d","\u201c I am the petrol station attendant . I was in front of the pump , filling up . Suddenly , I saw the ORG slowly coming up and stopping next to me , with the front facing the street as you can see in the photograph . The driver was not moving . Then the police cars arrived ; the policemen were shouting , \u2018 Move out of the way , move out of the way!\u2019 . I left the pump and went inside , CARDINAL to QUANTITY away , and the owner and I moved to an area further at the back . There is a second door , and we went through to the workshop . When I went inside the store I heard gunshots . There was chaos . More gunshots were fired . They were firing , but I do n\u2019t know in which direction . I could n\u2019t see anything . The pumps were next to the store ; if they had fired towards the car the bullets would also have hit the pumps . I think someone went up on to the veranda and threw a pot down . I saw it because I had gone out the back but I did n\u2019t go close . I could n\u2019t see anything and I did n\u2019t witness the arrest or see whether they shot him . When the car arrived I saw the tyres were burst , but I do not remember whether the windows were also broken . In the first photograph , I think the tyres are burst . It was the first statement I had ever made , I was still in a state of panic and I do n\u2019t know whether I reported everything accurately . It \u2019s the same DATE having passed since the incident . When I went to the back , I saw the police officer . He did n\u2019t shoot , he threw a pot , but I could n\u2019t see the victim \u2019s car . Neither the ORG , which was QUANTITY away , next to the car , nor the pumps , of course , had any bullet holes . The end of the veranda where the police officer went overlooked the car . The front of the car must have been protruding a bit under the veranda . \u201d","\u201c I am the owner of the petrol station . I was standing a bit further inside than ORG . I saw the ORG coming up slowly . It stopped , and seconds later I heard gunshots . The boy heard the shouting , I did n\u2019t . When I heard the gunshots I left , I went up to the house , and then a police officer came and threw a large pot at the roof of the car . He did n\u2019t shoot . I came down when the shooting had stopped and I saw the victim as they were pulling him out of the car . I think the man who pulled him out was wearing civilian clothes . I am not sure . I saw him holding a big machine gun . I do n\u2019t know if he fired . I do n\u2019t remember . If he had fired , I would remember it . He may have fired ; but I did n\u2019t see him do it . I do n\u2019t remember whether the windows of the car were broken . I remember that he had crashed ... I did n\u2019t find any cartridge cases anywhere . I did n\u2019t find any bullet holes anywhere . When I saw the police officer who came from the back on to the veranda , I left and did n\u2019t see if he fired . I went downstairs and saw them pulling the driver out of the car . The police officer did n\u2019t shoot him . It may also have been the person that got off the motorcycle . The veranda is wide and it covered CARDINAL of the car . \u201d","\u201c I was at the junction of Posidonos and PERSON ... Suddenly , I saw in my rear - view mirror a car coming from the side street at great speed ; it drove over the curb , came from the right and crashed into me . It threw me a distance of QUANTITY . There was a police car next to me . The police officers must have been out of the car , and were holding weapons . I heard gunshots and I was frightened . More police cars came and followed the ORG to the left , towards FAC . He caused great damage to me . If someone had been sitting in the back seat , they would not have survived . \u201d","Having deliberated , the court acquitted the QUANTITY police officers on both the criminal charges brought against them ( see paragraph QUANTITY above ) . On the first count ( causing serious bodily harm ) , the court found that it had not been established that the accused were the ones who had injured the applicant . A number of police officers who had taken part in the incident had left the scene after the applicant \u2019s arrest without revealing their identity or giving the necessary information concerning their weapons . The bullet that was removed from the body of the victim and a bullet that was found inside the car were fired from the same weapon but were unrelated to the traces from the CARDINAL weapons that were examined . The other bullet and some of the metal fragments found in the applicant \u2019s car had been fired from the weapons of CARDINAL of the accused . However , it had not been shown beyond a reasonable doubt that these officers had injured the applicant , given that many other shots had been fired from unidentified weapons .","As regards the second charge ( unauthorised use of weapons ) , the court held that the police officers had used their weapons for no other purpose than trying to stop a car whose driver they reasonably considered to be a dangerous criminal .","The relevant passages of the court \u2019s judgment read as follows :","\u201c On DATE the victim , PERSON , was driving a private vehicle with the number plate YIM DATE in GPE in the area around the NORP embassy . At the junction of ORG and GPE , a unit of the special police control division of ORG was carrying out checks on passing cars . The accused PERSON , PERSON and ORG were part of this unit . The victim \u2019s vehicle was coming from the direction of the hospital ; he drove through a red light and the accused Souliotis signalled to him to stop . Instead of stopping at the signal made by the traffic warden , however , he continued driving towards him and almost hit him . The police crew got into their car immediately and began chasing him . At FAC he entered the oncoming lane and drove through a red light . Because of the traffic , the police officers lost the car , which they were chasing with their flashing lights on , and met with it again near FAC . They flashed their lights at the driver in order for him to stop ; the siren and the flashing lights of the police car were on . Initially the victim turned his hazard lights on , as if he were going to stop the car . However , he suddenly accelerated and drove off . He reached PERSON near the flower shops ; he entered the oncoming lane at FAC and continued towards FAC . The police car informed the ORG control centre , and the control centre notified other units that were on duty in the area in which the victim was moving , in order for them to come and assist . At FAC the car was moving at a very high speed from CARDINAL lane to the other . Near Kallirois Street the driver almost collided with a police car ; at the traffic lights at FAC he drove through a red light , entered the oncoming lane and collided with a car . At GPE there was a roadblock formed by a police car , CARDINAL motorcycles and CARDINAL civilian cars , which he got past by driving on the pavement , and the crew of the police car were almost run over . At PERSON he collided with a ORG that was stationary , caused it to turn upside down , injuring the driver , and on FAC he collided with a car and a taxi , whose driver was injured . At the junction of GPE and PERSON there was a police car in the side street , and the cars moving towards PERSON had been blocked . The victim drove over the central reservation towards the right , in order to head towards the side street , but then he noticed the police car and drove over the central reservation towards the left and collided with CARDINAL cars that were crossing FAC and almost ran over Police Constable Stroumpoulis . The first gunshots directed at the pursued car , which were fired in order to stop the victim , were heard at the junction of GPE and PERSON . It was in that area that the accused PERSON , who was riding in the police car and had been chasing the vehicle from the beginning , fired a burst of shots when the car was at a distance of QUANTITY , with his firearm no . MP CARDINAL CCARDINAL , because the car was moving . He aimed at the rear right tyre . The accused Souliotis , who was riding in the same police car , fired from the left window , with his pistol no . AO CARDINAL , aiming at the rear left tyre , which he punctured . Near that junction the victim had to slow down . Many police officers had reached that spot and occupied both lanes ; other police officers , besides those already mentioned , also fired at the car , as many gunshots were fired at that spot . It is also to be noted that , during the entire course , policemen , police cars and motorcycles joined the chase , without being able to stop the vehicle . It continued its course along FAC , despite the gunshots , and stopped at the junction of PERSON and PERSON , at the entrance of a petrol station and near the petrol pumps , with the front facing the street . There , he was surrounded by the police units that were chasing him , and which the control centre knew had taken part in the operation , and also by other units that had come on their own initiative to help their colleagues when they heard about the incident from the control centre . In other words , there were units in the area that had gone to the scene of the incident , without being called . The police officers got out of their cars and off their motorcycles , holding their weapons . The victim made some movements in his car , which gave the police officers the impression that he had a weapon . The police officers asked him to get out of the car , but he did not , and the police officer who was wearing a bullet - proof vest , PERSON , approached the car . Then , a lot of the police officers who were present began firing in order to intimidate the victim and cover their colleague ; PERSON took the opportunity to break the car window and arrest the victim . Earlier , the accused police officer PERSON had climbed on to the veranda which was above the petrol station and had thrown a pot down , which broke the windscreen without making it fall in . When the victim got out of the car , he was immobilised by the police officer who had arrested him , and by his colleagues , and then it became clear that he was injured . He had an exit wound on his right arm , another exit wound on the right of the thorax , with the entry from the back of the armpit . He had an exit wound at the end of his left foot , a wound high up on his left buttock and wounds on the outer surface of the kidney area . The windscreen of the car driven by the victim was broken , but had not fallen in ; it had CARDINAL bullet holes and a mark made by another . There were CARDINAL bullet holes in the metal part of the left door at the back , and a bullet mark on the metal surface of the chassis . The back window was smashed and on its metal part there were CARDINAL bullet holes and another one at the left rear lights . There was a bullet mark on the right rear wing above the wheel . The front passenger window was broken and there was a bullet mark on the outside of the roof . There were bullet holes inside the car under the glove compartment on the dashboard , on the radio , the top part of the dashboard , in the driver \u2019s seat , in the front passenger seat and in the back seat . CARDINAL bullets and CARDINAL fragments were found inside the car . Of the police officers who took part in the operation , CARDINAL handed over their weapons , that is , all those who had been ordered to take part in the chase or who had notified the control centre and whose departments knew that they had taken part in the operation . However , others had taken part of their own accord in order to help their colleagues , and it is not known who they are or why they left after the arrest of the victim without informing the control centre of their presence at the scene of the incident . Among the QUANTITY weapons , there were QUANTITY revolvers of ORG calibre ; CARDINAL pistols , CARDINAL of which were of QUANTITY PERSON and CARDINAL of CARDINAL ACP calibre ; and CARDINAL ORG MP CARDINAL submachine guns of CARDINAL PERSON calibre . Of the CARDINAL weapons , only the weapons of the accused had been fired . The CARDINAL bullets that were found in the car and the one that was removed from the first metatarsal of the right foot of the driver came from cartridges of CARDINAL PERSON ( CARDINAL x CARDINAL ) calibre . Such cartridges are fired mainly from pistols and submachine guns with the same calibre . The CARDINAL fragments found inside the car are sabot fragments of coated bullets of different calibre and it was not possible to identify the calibre of the bullets , although one of the fragments was assessed as a fragment of QUANTITY ( CARDINAL x CARDINAL ) calibre . The report by the laboratory expert confirmed that the CARDINAL bullets , CARDINAL of which were found in the car and CARDINAL of which was found in the foot of the victim , came from cartridges of CARDINAL PERSON ( CARDINAL x CARDINAL ) calibre . The bullet [ PBCARDINAL ] and the CARDINAL metal sabots [ PPCARDINAL and PPCARDINAL ] found inside the car were fired by the ORG MP CARDINAL submachine gun number no . CCARDINAL that belonged to the accused PERSON . The bullet from which the other metal sabot [ PPCARDINAL ] came , which was found inside the car , was fired by the FAC pistol no . ACARDINAL that belonged to the accused Souliotis . The bullet that was removed from the body of the victim and a bullet that was found inside the car were fired by the same weapon , of PERSON ( CARDINAL x CARDINAL ) calibre , but bear no relation to the traces left by the CARDINAL weapons that were examined . The victim , PERSON , was indeed injured by the submachine guns used by the police officers who took part in the chase and which were fired during the pursuit at the junction of GPE and PERSON where , apart from ORG and PERSON [ illegible ] ( third accused ) other police officers fired who have not been identified , since there were many police officers who fired at that spot . This emerges indirectly from the fact that the bullet that was removed from the body of the victim and another one were fired by a weapon the owner of which was not identified and were not fired by the weapons of the accused . The fact that bullets and sabots that were found inside the car were fired by the weapons of the accused PERSON and PERSON leads to the conclusion that the physical injuries of the victim were caused by the weapons that belonged to the accused , apart from the one to his foot . In addition , since there were many bullet holes in his car that were caused by other , unidentified , weapons , the victim might have been injured by those bullets . As already stated , submachine guns and pistols are also of the same calibre . The first , second , third , sixth and seventh defendants fired shots for the purpose of intimidation in the area of the final operation ( the petrol station ) . It is also to be noted that many others also fired shots there for intimidation purposes in order to assist their colleagues who were closer to the car to arrest the victim . They can not have fired towards the car , because there was a danger of hitting the pumps of the petrol station , and there were no traces of gunshots in that area . The victim \u2019s foot injury was caused from above , since only the top of the shoe was hit and not the sole , but it can not be said that the shot was fired by the accused GPE , who had climbed on to the veranda of the petrol station , because the car was parked in such a way that CARDINAL of it was under the veranda and thus the direction of the shot would have to have been almost vertical in order to hit the top part of the foot . If that had been the case , the bullet would also have had to go through a part of the dashboard . There is no trace of this , the closest mark being on the radio . Besides , if this injury had been caused by the weapon of the accused , it would have been confirmed by the expert investigation ... The injury was indeed on the top part of the foot ; but it could have been caused by a shot that was fired from behind the car while the victim was driving and his foot was almost vertical to the accelerator , by CARDINAL of the weapons fired at him at the junction of PERSON and FAC . The victim \u2019s allegation that he was shot immediately after he was pulled out of the car must be considered groundless , since , as he stated , he was shot when he was \u2018 lying on his side , face LOC . If that had been the case , the injury would have been different . Having regard to the above , and taking into account the fact that other police officers who have not been identified took part in the operation , some of whom possibly used their weapons , the ORG has doubts as to whether the accused caused the victim \u2019s injury . As a result , they should be declared innocent of the first act attributed to them . They should also be declared innocent of the second act because , although they used their weapons , they had attempted to stop the car by creating artificial traffic congestion and roadblocks and had failed , as the victim had continued driving while he was being chased by a large number of police officers , in a manner that was dangerous to the civilians that were in his way . Furthermore , the police officers did not know whether the civilians in the cars that had collided with the victim were killed , and they understandably considered him to be a dangerous criminal because of his behaviour and because they had received that information from the control centre . ORG also doubts whether the accused could have avoided using their weapons , which they did in order to stop him and intimidate him , so that he would stop driving in a manner that was dangerous to other civilians , and to protect the latter , as was their duty . Therefore , the accused must be declared innocent of the acts attributed to them in the indictment . \u201d","The applicant , who was present when the judgment was pronounced , did not have the right to appeal under domestic law . The text of the judgment was finalised on DATE .","On DATE the public prosecutor instituted criminal proceedings against the applicant . The indictment read as follows :","\u201c [ The applicant ] is accused ... of committing a number of offences and more specifically :","A. While driving [ his ] car in GPE on DATE , he caused with his vehicle bodily injury and harm to others by his negligence , that is , by failing to take the care he should and could have taken in the circumstances and to anticipate the culpable consequences of his acts . More specifically : ( a ) while he was driving the vehicle referred to above in FAC , near NORP PERSON , towards the airport , he did not keep enough distance between himself and the vehicles in front to be able to avoid a crash in case they reduced their speed or stopped , so that he crashed the front of his car into the back of the car with the private registration number IR-CARDINAL that PERSON was driving in the same direction , resulting in injuries to her neck ; ( b ) after the above crash , the accused continued driving the vehicle referred to above and , while he was going along FAC near GPE , he again failed to keep enough distance from the vehicles in front , thus crashing the front of his car into the back of the car with the taxi registration number E-CARDINAL that PERSON was driving and that had stopped at a red light in the left lane of FAC , the consequence of which was to cause injury to the aforementioned driver who suffered a cervical hernia and an injury to the head .","B. While he was driving [ his ] car at the time and place referred to above , he did not keep enough distance from the vehicles in front to avoid a crash in case they reduced their speed or stopped .","C. While he was driving [ his ] car at the time and place referred to above , he did not abide by the police ORG signal to stop and , specifically , while he was driving the vehicle referred to above in GPE , crossing FAC , FAC , FAC and FAC , he did not comply with a signal to stop made by police officer PERSON , who was using a car of the NORP Police , registration number EA-CARDINAL , in FAC , but continued driving , crossing all the streets mentioned above , while the above - mentioned police car and other police cars of the NORP Police were chasing him ... \u201d","By judgment no . CARDINAL , the Athens First - Instance Criminal Court sentenced the applicant to CARDINAL days\u2019 imprisonment .","The relevant provisions of LAW read as follows :","\u201c Intentional infliction of bodily harm on another person ... shall be punishable by DATE imprisonment ... \u201d","\u201c Where the act punishable under LAW has been committed in a way which could have endangered the victim \u2019s life or caused him grievous bodily harm , imprisonment of DATE shall be imposed . \u201d","Section CARDINAL of Law no . DATE provides :","\u201c Anyone who uses a gun ... while committing a serious crime or lesser offence of which he is subsequently convicted shall be punished by a term of imprisonment of DATE to be added to the sentence imposed for that offence . \u201d","At the material time , the use of firearms by law - enforcement officials was regulated by PERSON no . CARDINAL , which was enacted on DATE when GPE was under NORP occupation . LAW of that statute listed a wide range of situations in which a police officer could use firearms ( for example in order \u201c to enforce the laws , decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies \u201d ) , without being liable for the consequences . These provisions were modified by LAW no . CARDINAL\/CARDINAL , which authorises the use of firearms in the situations set forth in PERSON no . CARDINAL \u201c only when absolutely necessary and when all less extreme methods have been exhausted \u201d . Law no . CARDINAL was criticised as \u201c defective \u201d and \u201c vague \u201d by ORG ( see Opinion no . CARDINAL ) . Senior NORP police officers and trade unions have called for this legislation to be updated . In a letter to the Minister of Public Order dated DATE , ORG ( ORG ) , an advisory body to the government , expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative ( ORG , DATE Report , pp . CARDINAL ) . In DATE the Minister of Public Order announced that a new law would shortly be enacted , which would \u201c safeguard citizens against the reckless use of police weapons , but also safeguard police officers who will be better informed as to when they can use them \u201d .","In DATE , a group called ORG DATE \u201d was dismantled . That group , established in DATE , had committed numerous terrorist acts , including the assassination of GPE officials in DATE , DATE , DATE and DATE .","On DATE Law no . DATE , which is entitled \u201c Carrying and use of firearms by police officers , training of police officers in the use of firearms and other provisions \u201d , came into force . Law no . CARDINAL was repealed ( section CARDINAL) . Further , in DATE , the \u201c Pocket Book on Human Rights for the Police \u201d , which was prepared by ORG , was translated into NORP with a view to being distributed to NORP policemen .","Article CARDINAL \u00a7 CARDINAL of LAW provides :","\u201c Every human being has the inherent right to life . This right shall be protected by law . No one shall be arbitrarily deprived of his life . \u201d","In this connection , ORG of ORG noted the following ( see General PERSON no . CARDINAL , Article DATE ( DATE ) , \u00a7 CARDINAL ) :","\u201c The protection against arbitrary deprivation of life which is explicitly required by the third sentence of LAW is of paramount importance . The ORG considers that GPE Parties should take measures not only to prevent and punish deprivation of life by criminal acts , but also to prevent arbitrary killing by their own security forces . The deprivation of life by the authorities of the ORG is a matter of the utmost gravity . Therefore , the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities . \u201d","The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ( \u201c ORG Principles \u201d ) were adopted on DATE by ORG on ORG and the Treatment of Offenders . Paragraph CARDINAL of the Principles provides :","\u201c Law - enforcement officials shall not use firearms against persons except in self - defence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life . \u201d","Paragraph CARDINAL of the Principles provides , inter alia , that law - enforcement officials shall \u201c act in proportion to the seriousness of the offence and the legitimate objective to be achieved \u201d . Under the terms of paragraph CARDINAL , \u201c governments shall ensure that arbitrary or abusive use of force and firearms by law - enforcement officials is punished as a criminal offence under their law \u201d . LAW ( b ) states that national rules and regulations on the use of firearms should \u201c ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm \u201d .","Other relevant provisions read as follows :","\u201c ... law - enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law - enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . \u201d","\u201c ... Governments and law - enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . \u201d","\u201c Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . \u201d"],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91006","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF MALTABAR AND MALTABAR v. RUSSIA","importance":3,"conclusion":"Preliminary objection dismissed;Remainder inadmissible;Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicants were born in DATE and live in the town of Tver .","On an unspecified date the authorities brought proceedings against the applicants on suspicion of fraud .","On DATE the Moskovskiy District Court of the town of Tver tried and convicted both applicants on a charge of attempted large - scale fraud . Both applicants were also tried on a charge of forgery . On the latter charge , the court acquitted the first applicant and found the second applicant guilty . They were sentenced to DATE and CARDINAL months\u2019 imprisonment respectively .","The applicants appealed against the judgment . Their appeal was examined and dismissed by ORG on DATE .","On DATE the Deputy President of ORG of GPE applied for supervisory review of the judgment of DATE , requesting a milder sentence .","By decision of DATE ORG examined and allowed the arguments set out in the special appeal . It reduced the applicants\u2019 sentences to DATE and DATE and CARDINAL months\u2019 imprisonment respectively and ordered that the first applicant be released accordingly .","NORP By decision of CARDINAL DATE the ORG released the second applicant on parole before the expiry of his prison sentence .","On DATE the applicants were arrested and placed in detention .","The applicants specified that TIME on DATE and QUANTITY a.m. on DATE they had first been held in a local police station before being transferred to IZ-CARDINAL\/CARDINAL . According to both applicants , they were refused food and an opportunity to sleep . They did not make any allegations concerning the overcrowding of cells in that facility .","Both parties agreed that the applicants had been transferred to pre - trial detention centre IZ-CARDINAL\/CARDINAL on DATE and that they had first been held in the local police station .","The applicants arrived at the pre - trial detention centre GPE in the town of Tver on DATE . The first applicant remained there until DATE and the second applicant until DATE .","According to the first applicant , DATE he had been detained in cell no . DATE .","On DATE he was transferred to cell no . CARDINAL . DATE and DATE he was held in cell no . DATE . From DATE he was detained in cell no . DATE . For DATE CARDINAL March CARDINAL he was detained in a punishment cell . On DATE he was transferred back to cell no . CARDINAL and remained there until DATE . DATE and DATE he was detained in cell no . CARDINAL . On DATE the first applicant left facility no . IZ-CARDINAL\/CARDINAL for another penitentiary establishment to serve his prison sentence .","The Government submitted that the dates of detention in the various cells in facility no . IZ-CARDINAL\/CARDINAL given by the first applicant were erroneous . The first applicant had been placed in cell no . DATE on DATE and had remained there for DATE . He was then transferred to cell no . CARDINAL , where he stayed until DATE . CARDINAL was detained in cell no . DATE . He was transferred to cell no . CARDINAL on DATE and remained there until DATE . DATE and DATE the first applicant was held in cell no . CARDINAL . From DATE he was held in cell no . DATE . On DATE the first applicant was transferred to cell no . CARDINAL , where he remained until he left facility no . IZ-CARDINAL\/CARDINAL on DATE .","From the above , it follows that the parties agreed that the first applicant has been detained in cells no . DATE . In addition , the first applicant maintained that he had spent DATE in a punishment cell and the Government maintained that he had spent DATE in cell no . CARDINAL .","NORP The applicant submitted that cell no . CARDINAL measured QUANTITY . It had CARDINAL sleeping places and accommodated between CARDINAL and CARDINAL detainees .","The Government submitted that the cell measured QUANTITY and had CARDINAL sleeping places . It had a system of artificial and natural ventilation and was lit by CARDINAL CARDINAL-watt daylight lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE .","According to the first applicant , the cell measured QUANTITY , had CARDINAL bunk beds and was occupied by CARDINAL detainees at all times during his stay there .","According to the Government , the cell measured QUANTITY , had CARDINAL bunk beds and was lit by CARDINAL CARDINAL-watt DATE lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE . The cell had both natural and artificial ventilation systems .","According to the prison administration , on DATE , the date of the first applicant \u2019s departure from cell no . DATE , there had been CARDINAL inmates in the cell .","According to the first applicant , cell no . CARDINAL measured QUANTITY , had CARDINAL beds and accommodated between QUANTITY and QUANTITY detainees .","The Government submitted that the cell in question measured QUANTITY and had CARDINAL sleeping places . It had a system of natural and artificial ventilation and was lit by CARDINAL CARDINAL-watt DATE lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE and that on DATE , the date of the first applicant \u2019s departure from cell no . DATE , there had been CARDINAL inmates in the cell .","According to the first applicant , cell no . CARDINAL measured QUANTITY , with CARDINAL beds , and had held CARDINAL infected detainees at the time of the applicant \u2019s detention . It had a constantly high level of humidity as it was situated right above the prison baths . Also , every other night the only toilet in the cell was decontaminated with CARDINAL a bucket of chlorine - based reagent . Since the toilet flush was inactive during TIME , the chlorine - based reagent combined with the humidity and urine caused corrosive damage to GPE lungs and eyes .","According to the Government , the cell in question measured QUANTITY , had both artificial and natural ventilation systems and CARDINAL sleeping places and was lit by QUANTITY CARDINAL-watt DATE lamps . The prison administration submitted a letter in which it certified that there had been CARDINAL inmates in the cell on DATE .","The first applicant submitted that the punishment cell measured QUANTITY , with CARDINAL sleeping place and TIME inmates . The applicant submitted that there had no toilet in the cell and that detainees had used a bucket , which had been emptied once a day but had never been washed or decontaminated .","The Government submitted that this cell measured QUANTITY , had CARDINAL sleeping places , both natural and artificial ventilation , and was lit by QUANTITY bulb . The prison administration submitted a letter in which it certified that on DATE there had been CARDINAL inmates in the cell .","DATE and DATE the second applicant was detained first in cell no . CARDINAL and then in no . CARDINAL . During the period DATE and DATE he was held in cell no . CARDINAL . For DATE in DATE the second applicant was detained in the punishment cell .","The Government submitted that on DATE the second applicant had been detained in cell no . CARDINAL . As of DATE he was placed in cell no . CARDINAL . On DATE he was transferred to cell no . CARDINAL . As of CARDINAL DATE he was transferred to cell no . CARDINAL . From DATE to DATE he was detained in cell no . DATE .","From the above it follows that the parties agree that the second applicant spent some time in cells FAC . CARDINAL , DATE and CARDINAL . In addition , the second applicant maintains that he had spent DATE in a punishment cell and the Government maintained that he had spent DATE in cell no . CARDINAL .","The second applicant submitted that cell no . CARDINAL measured QUANTITY , had CARDINAL sleeping places and was occupied by CARDINAL inmates .","The Government submitted that the same cell measured QUANTITY , had CARDINAL sleeping places , artificial and natural ventilation systems , and was lit by QUANTITY bulbs . On DATE it had accommodated CARDINAL inmates . The prison administration submitted a letter in which it certified that on DATE there had been CARDINAL inmates in the cell .","The second applicant submitted that cells no . CARDINAL and no . CARDINAL measured QUANTITY , had CARDINAL bunk beds and accommodated CARDINAL detainees .","The Government submitted that cell no . CARDINAL measured QUANTITY and had CARDINAL sleeping places . Cell no . CARDINAL measured QUANTITY and had CARDINAL bunk beds . Both cells had natural and artificial ventilation and were lit by CARDINAL CARDINAL-watt DATE lamps . On DATE there had been CARDINAL inmates in cell no . CARDINAL . The prison administration submitted a letter in which it certified that on DATE there had been CARDINAL inmates in cell no . CARDINAL .","According to the second applicant , he had been detained for DATE in DATE in a punishment cell measuring QUANTITY , with CARDINAL bed and CARDINAL detainees .","According to the Government , the cell no . CARDINAL measured QUANTITY , had CARDINAL sleeping places and , according to the prison administration , on DATE had contained CARDINAL inmates .","The applicants submitted that they had taken walks in the detention centre courtyard DATE . The walks had lasted TIME depending on the PERSON mood . The courtyard was exposed to the elements and had no roof , and in bad weather the walks usually lasted TIME .","The Government did not comment on these allegations .","According to the applicants , detainees could not take a shower more than twice or CARDINAL times a month and the water in the shower was barely warm .","The Government submitted that the applicants had been allowed to take a shower once DATE for TIME .","The applicants also submitted that all the cells they had described lacked proper ventilation systems and were very hot in DATE and cold in DATE .","According to the ORG , all the cells referred to above had both artificial and natural ventilation systems . The windows in all of the applicants\u2019 cells were double glazed and had a window leaf for ventilation . Furthermore , the heating system in the prison was fully operational and the temperature in the cells was within the permissible range ( + PERSON in DATE and + CARDINALo C in DATE ) .","According to the applicants , all the cells were infected with lice , fleas and bugs , none of the toilets in the cells offered detainees any privacy and the authorities had failed to provide them with fresh linen , blankets or crockery . They submitted CARDINAL photographs of a cell in the detention centre in question . None of the beds in the photographs had any bed linen on them .","The Government submitted that both applicants had been provided with an individual sleeping place and had a mattress , a pillow with CARDINAL pillowcases , CARDINAL blankets , CARDINAL sheets and CARDINAL towels . In addition , they were given a mug , a spoon and a bowl . The bed linen was changed once DATE after the inmates had taken a shower . There was a brick wall QUANTITY high separating the toilet area from the living area in all the cells . The authorities submitted plans of the interior of all the cells and their dimensions . They further submitted that during the relevant period they had carried out disinfection works , including fumigating and disinfesting each cell twice a month .","The applicants alleged that the catering had been extremely poor .","The Government submitted that inmates were given food CARDINAL times a day , in accordance with the relevant norms .","The applicants further submitted that all the cells had been heavily overcrowded and that during the preliminary stage of the proceedings visits to the prison by an investigator had coincided with their turn to sleep and their lunchtime , so that they were effectively deprived of sleep and food . The detainees had to sleep in turns and had no way of washing themselves or shaving .","The Government submitted that the cells in question had not been overcrowded . They referred to statements of the prison authority in this regard ( see , for more details , the sections below on specific cells ) .","The Government submitted in respect of the period DATE and DATE that the number of bunk beds in the establishment had remained constant , that there had been CARDINAL sleeping places in total , that CARDINAL cells ( nos . CARDINAL - CARDINAL , DATE , DATE , DATE , GPE , CARDINAL , DATE , CARDINAL , CARDINAL - CARDINAL , with a capacity ranging from CARDINAL to CARDINAL sleeping places ) had been used in that prison , and that the DATE total number of detainees during that period had been on average CARDINAL ( ranging from CARDINAL on DATE to CARDINAL on DATE ) .","The Government submitted detailed plans and dimensions in respect of each of the cells mentioned by the applicants .","The applicants submitted that for attendance at court hearings they had usually been taken out of the detention centre early in the morning , at TIME , and were not brought back until TIME While they were being moved , the applicants were kept either in a small space measuring QUANTITY along with another detainee , or in a bigger space measuring QUANTITY containing between CARDINAL QUANTITY detainees . No warm food or toilet facilities were provided during transport or in the detention cells of the court . While waiting for a hearing , between court sessions or while waiting for other detainees after the hearing , each of the applicants had been kept for TIME in a small unventilated cell in the courthouse measuring QUANTITY , together with CARDINAL other prisoners .","According to the applicants , they were transported to the courts on QUANTITY occasions each : DATE , DATE and DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE and DATE , and DATE . They also submitted that the prison vans had been unsuitable for transportation of prisoners because of the lack of artificial and natural ventilation or toilet facilities and overcrowding . They also pointed out that the actual distance travelled had been longer because the prison van had had both to deliver detainees to and collect them from CARDINAL different regional courts around the city . They submitted that it had taken TIME : CARDINAL for delivery and CARDINAL for collection and the return journey .","The Government submitted that the inmates had breakfast before going to court , were returned to the detention centre for lunch and had dinner after the court sessions . The ORG submitted a statement by PERSON , an official in charge of transportation of detainees , dated DATE , in which he certified that his convoy teams had never exceeded the limits of transport capacity of the prison vehicles . The ORG also submitted drawings of the interior of such vehicles . They could not provide more detailed information on the exact number of transported detainees as the relevant archived documents had been destroyed on CARDINAL DATE on the expiry of the storage time - limit .","The Government submitted that the first applicant had made CARDINAL return journeys on the following dates : DATE ( ORG ) , DATE ( ORG ) , DATE ( ORG ) , CARDINAL , DATE , DATE , DATE and DATE ( ORG ) , DATE ( ORG ) , and DATE ( ORG ) . The second applicant made CARDINAL return journeys on the following dates : DATE ( ORG ) , DATE ( ORG ) , CARDINAL , DATE , DATE , DATE and DATE ( ORG ) , DATE ( ORG ) , and DATE ( ORG ) .","The distance between facility no . IZ-CARDINAL\/CARDINAL and LOC was QUANTITY respectively .","As regards the detention cells in ORG , the Government submitted that there were CARDINAL of them , each designed for QUANTITY persons , containing benches , artificial lighting , natural ventilation and measuring CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , QUANTITY respectively . The detainees were allowed to go to the WC room upon request .","The applicants referred to reports on human rights in GPE by ORG of DATE and DATE . A DATE report on the events of DATE stated that the situation in pre - trial detention centres in GPE was very bad overall , as the detention centres contained CARDINAL times more detainees than the number of places available ( CARDINAL detainees and CARDINAL places ) . The DATE report on the events of DATE mentioned GPE as being affected by the issue of overcrowded pre - trial detention centres and complaints about deficient catering . The DATE report on the events of DATE referred to CARDINAL of former inmates who spoke of arbitrariness and \u201c lawlessness \u201d in the detention centre in question .","According to the applicant , the newspaper ORG gazeta published an interview given by a number of officials , including Minister of Justice PERSON . PERSON , his deputy PERSON . ORG and the head of ORG of ORG , during a press conference in the GPE pre - trial detention centre . The applicant claimed that they had admitted that the numbers of inmates in NORP SIZOs and prisons exceeded capacity by PERCENT , the most difficult situation being in the cities of GPE and GPE , the towns of GPE and NORP and the republic of GPE .","Rule DATE provided that all inmates , whether suspects or defendants , had to be given , among other things : a sleeping place ; bedding consisting of CARDINAL mattress , CARDINAL pillow and one blanket ; bed linen consisting of CARDINAL sheets and a pillowcase ; a towel ; crockery and cutlery , including a bowl , a mug and a spoon ; and seasonal clothes ( if the inmate had no clothes of his own ) .","Rule CARDINAL stated that cells in pre - trial detention centres must be equipped , among other things , with a table and benches with enough seating for the number of inmates , sanitation facilities , tap water , day lamps and nighttime lighting .","Rule CARDINAL provided that prisoners were to receive food CARDINAL times a day , with warm meals provided in accordance with the norms laid down by the Government of GPE .","Under Rule CARDINAL , inmates had the right to have a shower at least once DATE for TIME . They were to receive fresh bed linen after they had taken a shower .","Rule CARDINAL provided that an inmate could receive visits from his lawyer , family members or other persons , subject to written permission from an investigator or an investigative body , the number of visits being limited to CARDINAL per month .","DATE . Order no . CARDINAL of ORG for the Execution of Sentences of DATE deals with implementation of the \u201c ORG - trial detention centres DATE \u201d programme .","The programme is aimed at improving the functioning of pre - trial detention centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem .","NORP The programme mentions pre - trial detention centre IZ-CARDINAL\/CARDINAL amongst the ones affected . In particular , the programme states that , on DATE , the detention centre had a capacity of CARDINAL inmates and in reality accommodated CARDINAL detainees , in other words , PERCENT more than the permitted number .","The relevant extracts from ORG of ORG for the prevention of Torture and Inhuman or Degrading Treatment or Punishment ( \u201c the CPT \u201d ) read as follows :","\u201c CARDINAL . Overcrowding is an issue of direct relevance to the ORG \u2019s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps signi\ufb01cantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .","A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...","Speci\ufb01c mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...","Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...","The ORG would add that it is particularly concerned when it \ufb01nds a combination of overcrowding , poor regime activities and inadequate access to toilet \/ washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .","It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... \u201d","\u201c CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG \u2019s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .","The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... \u201d","\u201c CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...","In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .","The ORG frequently encounters devices , such as metal shutters , slats , or plates \ufb01tted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that speci\ufb01c security measures designed to prevent the risk of collusion and\/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58098","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1997,"docname":"CASE OF MEHEMI v. FRANCE","importance":2,"conclusion":"Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"C. Russo;John Freeland","text":["Mr ORG , who was born in ORG in DATE , is an NORP national and is currently living in GPE . Until QUANTITY DATE , when he was deported , he lived in GPE , where his parents \u2013 who have lived there for DATE still reside , as do his CARDINAL brothers ( CARDINAL of whom is NORP and the other the father of CARDINAL NORP children ) and his QUANTITY sisters ( CARDINAL of whom is NORP and the other the wife of a NORP national ) .","The applicant went to school in GPE until DATE . He apparently worked in the construction industry for DATE and thereafter as a self - employed taxi - driver .","He is the father of CARDINAL children of NORP nationality , born in DATE . On DATE , in GPE , he married their mother , an NORP national who has been lawfully resident in GPE since DATE .","On CARDINAL DATE officers of ORG , assisted by customs officers , seized CARDINAL kilograms of hashish imported from GPE in a van adapted for the purpose . CARDINAL people , including the applicant , at whose GPE home QUANTITY of hashish were found , were committed for trial at ORG accused of drug offences and illegal importation of prohibited goods .","On DATE the ORG sentenced Mr Mehemi to CARDINAL years\u2019 imprisonment , with ineligibility for parole during DATE , and CARDINAL customs fines , for possession and illegal importation of dangerous drugs .","In a judgment of CARDINAL DATE ORG upheld the judgment of CARDINAL DATE and ordered Mr ORG \u2019s permanent exclusion from NORP territory on the ground that \u201c public - policy considerations preclude the presence within NORP territory of an alien engaged as a principal in the offence of drug trafficking \u201d .","On DATE Mr Mehemi filed with ORG an application to have the permanent exclusion order rescinded . He relied in particular on LAW .","On DATE ORG refused the above application on the following grounds :","\u201c The defendant has not adduced any new evidence not examined by ORG when it decided to uphold ORG permanent exclusion from NORP territory .","It should be observed that ORG expressly mentioned in the reasons for its decision that NORP public - policy considerations precluded the presence within NORP territory of an alien engaged as a principal in the offence of drug trafficking .","It is untrue that the defendant has maintained no link with his nationality of origin , since he voluntarily opted for that nationality on reaching his majority , despite the fact that the circumstances of his birth would have allowed him , in the absence of any criminal conviction , to acquire NORP nationality as of right if he had not expressly declined it .","His various trips to GPE over DATE his arrest show that he has not severed all physical links with his nationality of origin .","Lastly , the order permanently excluding him from NORP territory is justified by the offence of importing drugs in the manner described in his conviction , now final , and by no means constitutes a disproportionate response to the seriousness of that offence , given that he had remained on NORP territory in order to facilitate the importation and subsequent distribution among desperate young people \u2013 with all the consequences which this type of offence involves \u2013 of very substantial quantities of hashish , the first drug turned to by addicts on their downhill slide , CARDINAL kilograms of it in this case , purely for financial gain .","It can not seriously be maintained that there has been any violation of the provisions of LAW .","... \u201d","On DATE the applicant appealed on points of law . In his statement of the grounds of appeal , dated DATE , his lawyer argued as follows :","\u201c \u2026","\u2026 Contrary to what is said in the impugned judgment , Mr ORG , an NORP national , was never entitled to claim NORP nationality as of right ... Contrary to what is asserted there , he did not at any time decline NORP nationality \u2026 Pursuant to the legislation governing the consequences of NORP independence as regards nationality ( Ordinance no . CARDINAL of DATE , Decree no . DATE DATE and PERSON no . CARDINAL - CARDINAL of DATE ) , Mr ORG , who was born before DATE , was subject to the same rules as his parents , who , not having made the declaration of recognition of NORP nationality provided for in LAW DATE , became , as a result , NORP .","... Contrary to what ORG judges said , there was indeed disproportionality in the instant case between the isolated offence Mr ORG was found guilty of and his interests as defined and protected in LAW Mr ORG was born in GPE , is married to a national of a ORG member ORG and is the father of CARDINAL NORP children ... His whole family lives in GPE and \u2026 , contrary to what is stated in the judgment , he has not maintained links with his country of origin , his nationality DATE which he did not choose \u2013 not reflecting his actual position .","...","... Mr ORG CARDINAL NORP children were born in GPE and have always lived there ... They can not be uprooted and sent to a country they do not know with the sole aim of being allowed to remain with their father ... In any event , their mother could not follow them if they were , ... nor can Mr Mehemi go to GPE , on account of his exclusion from NORP territory .","... \u201d","In a judgment of CARDINAL DATE ORG dismissed the appeal in the following terms :","\u201c ...","The ORG finds in this case that the measure concerned , which was imposed on the defendant following adversarial proceedings , was by no means a disproportionate response to the seriousness of the crime , and the grounds of appeal therefore contain no new evidence of a kind to warrant rescinding the measure .","In the light of the above findings and considerations , ORG justified its decision and did not infringe the principles or legislation relied on in the grounds of appeal .","It follows that the appeal can not be allowed .","... \u201d","While Mr ORG was in prison , on a date which has not been determined , his wife wrote to the NORP President in the following terms :","\u201c ...","I would not ask you to plead in my favour for a reduction of my husband \u2019s sentence , as I know full well that that is impossible , but I beseech you to help me have his expulsion from NORP territory quashed . He was sentenced to DATE imprisonment \u2013 so be it . That must be the way of it because he committed a crime and I know perfectly well that he must pay for it ... But I can not bring myself to accept his expulsion , and for good reason . Please understand me , PERSON President , or at least try to : since my husband went to prison my children have not been themselves ; they are suffering terribly and are constantly having to be examined by psychologists . But it is not just my children and I who are suffering : there is also the whole of my husband \u2019s family , particularly his mother , who is DATE and a diabetic . She sees her grandchildren all the time and whenever they ask her where \u201c Dad \u201d is and when he will be coming back she can not help bursting into tears . This situation is having a terrible effect on her physical and mental health .","Things can not go on like this . I do not want my family and the future of my children to be destroyed , because what future can I give them without their father at their side ? ... \u201d","NORP The permanent exclusion order was enforced on DATE .","Article L. CARDINAL - CARDINAL of LAW formerly provided :","\u201c ... the courts ... may order an alien convicted of an offence under LAW to be permanently excluded from NORP territory .","Exclusion from NORP territory shall of itself entail the deportation of the convicted person at the end of his sentence .","...","Where a person , on conviction , is permanently excluded from NORP territory , he may not request the benefit of the provisions of LAW . \u201d","Law no . CARDINAL - CARDINAL of DATE replaced the last CARDINAL paragraphs by the following provisions :","\u201c However , exclusion from NORP territory shall not be imposed on :","...","a convicted alien who is the father or mother of a NORP child resident in GPE , provided that he or she is vested with or shares parental authority over that child or provides for its needs ;","...","Nor shall exclusion from NORP territory be imposed on a convicted alien who can prove either :","that he has been normally resident in GPE since reaching DATE at the most or for DATE ; or","that he has been lawfully resident in GPE for DATE .","The provisions of the CARDINAL preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [ toxic plants classified as drugs ] or for conspiracy to commit those offences .","...","Exclusion from NORP territory shall of itself entail the convicted person \u2019s deportation , where necessary after the end of his prison sentence . \u201d","LAW was repealed by Law no . CARDINAL of DATE .","Article CARDINAL of the Criminal Code provides :","\u201c \u2026","Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ... , in whole or in part , or vary its duration .","\u2026 \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75680","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2006,"docname":"CASE OF LEHTINEN  v. FINLAND (No. 2)","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","The applicant \u2019s home as well as the office premises of his various companies were searched on CARDINAL , DATE and DATE and various materials were seized . The search warrants referred to an investigation into debtor \u2019s dishonesty involving the company PERSON as well as a book - keeping offence . Both offences were suspected to have been committed by the applicant between PERSON and CARDINAL DATE .","On DATE the public prosecutor questioned the applicant in connection with other criminal proceedings which were pending against the applicant before ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) of PERSON in respect of acts allegedly committed in DATE relating to the company ORG ( \u201c U. \u201d ) .","On DATE the estates of CARDINAL wound - up companies , including NORP , reported an offence against the applicant for alleged offences of debtor \u2019s dishonesty .","On DATE the applicant was interrogated by the police . On DATE he was charged with the offence of NORP dishonesty , allegedly committed DATE . The estate of the wound - up company PERSON was indicated as one of the complainants .","On DATE he received a summons to appear before ORG on DATE . The summons had wrongly indicated ORG in GPE as the hearing venue instead of GPE . On DATE the applicant was brought to the hearing of ORG of Tuusula , the court having found that the applicant had no legal excuse for not having been present at the first hearing .","At the hearing on DATE the applicant demanded that the charges against him be adequately particularised .","In a further letter of indictment dated DATE the prosecutor presented alternative charges of aggravated tax fraud and aiding and abetting that crime .","On DATE the applicant initiated civil proceedings against bank ORG and requested that they be joined to the criminal proceedings . ORG rejected this request .","At the hearing on DATE the prosecutor , basing himself on a letter of indictment of DATE , specified the charges .","On DATE , at its CARDINALth hearing , ORG issued its judgment . It convicted the applicant of debtor \u2019s dishonesty and sentenced him to QUANTITY months\u2019 unconditional imprisonment . He was ordered to pay MONEY ( ORG , CARDINAL euros ( ORG ) ) in damages .","The applicant appealed , appending his own writ of appeal to that of his counsel , PERSON In addition , he lodged numerous further submissions both within and outside the requisite time - limit , the last one in DATE . Originally , the applicant requested an oral hearing and , in any case , that ORG should reduce his sentence . In DATE he requested that the case be referred back to ORG to be decided by a different composition of judges or , in the alternative , that the charges against him be dismissed as CARDINAL judge had allegedly been partial and he had been refused leave to examine a witness .","In DATE ORG , as requested , cancelled PERSON \u2019s appointment and appointed GPE as the applicant \u2019s new legal aid counsel .","NORP In its judgment of DATE ORG rejected his appeal and increased the sentence to a term of imprisonment of DATE and DATE . Having regard to the contents of the applicant \u2019s appeal as filed within the time - limit , ORG saw no need for an oral hearing . The court took into account CARDINAL of the applicant \u2019s further submissions as CARDINAL submissions lodged by his new counsel , in so far as the requests therein had not deviated from his original appeal as filed within the requisite time - limit . Insofar as the applicant had alleged procedural defects ORG considered most of his submissions belated as they had not been lodged within DATE of the judgment of ORG .","On DATE ORG refused the applicant leave to appeal .","Under LAW , LAW ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken , as amended by Act no . CARDINAL\/CARDINAL and in force at the relevant time ) any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint with a ORG within DATE from the date of the adjournment . Under the said provision the district court could adjourn the case upon request by a party , for example if the said party wished to adduce further evidence . The court could not adjourn the hearing proprio motu save on special grounds . LAW , section CARDINAL ( CARDINAL ) was repealed with effect from DATE , when new provisions generally prohibited adjournments .","Chapter CARDINAL of LAW ( rikoslaki , strafflagen , Act no . CARDINAL\/CARDINAL ) was amended with the effect as of DATE . Section CARDINAL , Article CARDINAL sets out the grounds mitigating the punishment that are to be taken into consideration , including \u201c a considerably long period that has passed since the commission of the offence \u201d , if the punishment that accords with established practice would for this reason lead to an unreasonable or exceptionally detrimental result .","The Government referred to ORG precedent ORG CARDINAL concerning the relevance of the length of the proceedings when determining a sentence . In that case the defendants were sentenced to prison for DATE and DATE for aggravated tax - fraud . Their sentences were mitigated because of the length of the proceedings , which was DATE ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57549","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1980,"docname":"CASE OF VAN OOSTERWIJCK v. BELGIUM","importance":2,"conclusion":"Preliminary objection allowed (non-exhaustion of domestic remedies)","judges":"","text":["When she lodged her application , PERSON had been working since DATE in the Secretariat of ORG ; she was at the same time studying at ORG and , in DATE , obtained a degree in law ( licence en droit ) . Subsequently , she was enrolled as a DATE pupil at FAC ; she is entered on the roll of pupils as \" PERSON \" .","At birth , on DATE , the applicant possessed all the physical and biological characteristics of a child of the female sex and she was entered on the birth register of the ORG district ( GPE ) as the daughter of PERSON , with the forenames PERSON , PERSON , PERSON , PERSON .","However , according to her , from DATE she became conscious of a dual personality : although physically female she felt herself psychologically of the male sex . After going through a period of depression on this account , she attempted suicide in DATE and had to be treated in hospital ( see paragraph CARDINAL of the Commission \u2019s report ) .","From DATE onwards , the applicant - who will henceforth be referred to in the masculine , the male sex being the CARDINAL assumed by PERSON for social purposes at the time the application was lodged with the Commission - sought a solution to his problem by having a \" sex - change \" carried out on his body .","In DATE , CARDINAL specialists , Doctor NORP and Doctor PERSON , respectively a neurologist and endocrinologist , found that the symptoms shown by the applicant unquestionably indicated transsexualism . In addition to having before them the report of a NORP psychiatrist , they had also consulted a NORP psychiatrist , Doctor PERSON .","Whilst the doctors considered the use of psychotherapy ineffective in this field , they concluded , in the light of NORP , LANGUAGE and NORP research , that surgical treatment offered excellent prospects of success . They also took note of the fact that the applicant had consistently refused to accept the first kind of treatment and they believed it probable that he would attempt to commit suicide if the second kind were not adopted .","Accordingly , they decided to apply hormone therapy , followed by surgery .","On being advised of the purposes , methods and effects of the treatment , the applicant stated his readiness to accept the risks . He therefore underwent hormone therapy which , after DATE led to appearance of the secondary sexual characteristics of a male , such as hair growth and change of voice .","In DATE and DATE in GPE , CARDINAL surgeons , Mr. PERSON and Mr. PERSON , successfully performed on him CARDINAL operations of sexual conversion ( bilateral mammectomy ; hysterectomy - bilateral ovariectomy ) . Mr. PERSON had previously sought the consent of ORG : on DATE , the Secretary of ORG had sent him the following reply : \" As the problem you raise is a medical one , you should act according to your conscience but we must most strongly advise you to take all possible precautions in view of the very delicate nature of this type of operation . \"","Subsequently , the applicant received a phalloplasty carried out in CARDINAL stages , from DATE , by Professor PERSON , a surgeon at ORG in GPE .","The treatment has without any doubt substituted an outwardly male physique for a female physique , but the chromosomes remain those of the female sex .","Part of the cost was borne by ORG ; the NORP administrative department issued the applicant with an employment card made out in the name of Mr. PERSON .","On DATE , the applicant filed a \" petition for rectification of a civil states certificate ( \" requ\u00eate en rectification d\u2019un acte de l\u2019\u00e9tat civil \" ) : he requested ORG to direct that his birth certificate should henceforth read \" a child of the male sex with the forenames PERSON , PERSON , PERSON , born on ... , son of ... \" . He relied , inter alia , on a decision delivered on DATE by ORG , which had adopted a similar solution in another case ( see paragraph CARDINAL below ) .","The minist\u00e8re public ( Attorney - General \u2019s department ) submitted on CARDINAL DATE that the petition should be disallowed : it was argued that PERSON had not established , as he was obliged to do under the legislation in force , that the initial record of his sex was tainted by an error , whereas the case decided in GPE did concern such an error .","ORG dismissed the petition on DATE on the ground that the petitioner had not demonstrated that the Registrar had made a mistake when drawing up the birth certificate ; indeed , the petitioner \u2019s submissions showed just the opposite since he did not claim to have been \" fundamentally \" a man from the outset .","PERSON appealed to ORG on DATE . He contended that a transsexual has by definition the sex opposite to that which is apparent at the time of his birth and criticised ORG for disregarding the concept of transsexualism . According to him , the rectification being claimed was therefore a pressing legal necessity . He also requested ORG to be guided by equity , humanity and the interests both of society and of himself in arriving at its decision . He maintained that , on this basis , the ORG would accept that he was a man who no longer possessed the characteristics of a woman ; that it was inconceivable not to recognise the consequences of transsexualism where it had been duly established ; that the decision under appeal led to results that were absurd and harmful to the social order , for example the possession of patently incorrect identity documents .","The parquet ( Attorney - General \u2019s department ) submitted that the appeal should be dismissed , relying on the following arguments . There was controversy in medical circles regarding the syndrome known as transsexualism . Moreover , the assertion that PERSON had always belonged \" fundamentally \" to the male sex was not corroborated by the facts ; ORG had made no mistake in recording what outward appearances revealed . In point of fact , some lawyers questioned whether , in the absence of an error , the only conceivable legal remedy did not consist of an \" action d\u2019\u00e9tat pr\u00e9alable \" ( a \" preliminary action pertaining to personal status \" ) ; their views probably had force , but in the present proceedings the issue had not been put in that manner . Admittedly , the appellant had an affliction which caused him considerable suffering in human and personal terms ; if this were the only aspect to be considered , it might perhaps have been possible to grant his petition . From the point of view of public policy ( ordre public ) , on the other hand , the petition prompted the most serious reservation : its acceptance might provoke numerous other petitions and it would be dangerous to encourage indirectly by this means the proliferation of treatment whose effects , being irreversible , might subsequently be regretted by the patients themselves . Finally , the perpetual calling in question of certain situations , particularly in the realm of personal status , conflicted with the requirements of a rational organisation of the community : it would tend to an increase in personal problems and engender a climate of insecurity and instability in family and social relationships .","ORG dismissed PERSON appeal on DATE . It held that , before it could be rectified , a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed \" account to be taken of artificial changes to and individual \u2019s anatomy \" , such as those in the present case , \" even if they correspond[ed ] to his deep - seated psychical tendencies \" . However , \" neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism \" were capable of evidencing the existence , from the very outset , of \" physical characteristics of the male sex or even ( of ) transsexual tendencies \" .","PERSON decided not to take his case to ORG . According to PERSON to the ORG \u2019s report , he had previously consulted \" a number of qualified persons \" . In addition , Mr. PERSON , a lawyer practising before ORG , advised the applicant after the event , on DATE and in DATE , that in his view such an appeal would have had no prospects of success ( see the verbatim record of the hearings of DATE before the ORG and paragraph CARDINAL below ) .","The applicant has not , until now , sought authorisation to change his forenames , authorisation which may be granted by the Government in pursuance of an Act of DATE supplementing the LAW of CARDINAL Germinal , DATE XI - DATE ( see paragraph CARDINAL below ) . He has an identity card bearing his female forenames , but with a photograph corresponding to his present outward appearance .","In GPE , there is no legislation dealing with transsexualism . In the only case of the kind which appears to have given rise to a criminal prosecution , ORG held , on DATE , that sex - change treatment and operations did not of themselves constitute criminal offences . They depended on the free decision of doctors and surgeons , acting according to their conscience and with the ORG consent .","The drawing up of civil status certificates , including birth certificates , is regulated by LAW . Under LAW , declarations of birth have to be made before ORG for the district . The certificate is drawn up immediately in the presence of CARDINAL witnesses and states , amongst other things , the child \u2019s sex and forenames ( Articles CARDINAL and DATE ) .","Rectification of civil status certificates is governed by Articles CARDINAL of the Judicial Code . The person concerned has to file a petition with ORG ( Article CARDINAL ) . The President of the ORG designated to hear the matter gives directions for the petition to be communicated to the minist\u00e8re public and appoints a judge - rapporteur ; the petitioner is invited to appear at a hearing in order to present his case ( Article CARDINAL ) . The operatives provisions of any judgment ordering rectification are transmitted to ORG who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended ; thereafter , the certificate will only be issued bearing the rectifications ordered ( Article CARDINAL ) .","The Government referred the ORG to a judgment dealing with the construction of these provisions : in the case of a couple who had obtained a judicial separation but later resumed co - habitation , ORG of First Instance held on DATE that \" rectifying a civil status certificate \" involves making thereto \" such additions , deletions or modifications as may be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns \" , including the situation where \" a certificate , though properly prepared in the first place , no longer corresponds to the true state of affairs \" .","Several NORP courts have had the occasion to hear petitions for rectification filed by persons who had undergone sex - change treatment in circumstances varying somewhat from CARDINAL case to another . ORG of GPE ( DATE ) and GPE ( DATE ) dismissed the actions , whereas that of GPE ( DATE ) upheld the petition . Another case also resulted in a favourable decision for the petitioner , although the person concerned , unlike NORP PERSON , had not received a phalloplasty ( ORG , DATE ) .","ORG has never been called on to consider the issue .","According to the Government , any civil status certificate may also be modified so as to coincide with the person \u2019s current situation by means of an action d\u2019\u00e9tat ( an action pertaining to personal status ) . This \" bringing into conformity \" only has effect as regards the future . Up to the present time , apparently no one has instituted such an action with a view to obtaining recognition of a new sexual identity .","Since DATE , the date on which the above - mentioned LAW DATE came into force ( see paragraph CARDINAL above ) , any person who has grounds for changing his forenames may apply to the government authorities setting out his reasons ( section CARDINAL ) . If the application is allowed , the government authorities grant leave for the change by LAW ; on request by the person concerned , ORG will then enter particulars of LAW on his registers and endorse them in the margin of the birth certificate . Any short form birth certificate subsequently issued must state the new forenames and not the former ones .","At the present time , at last seven transsexuals have taken advantage of this LAW , implementation of which in a given case has no legal bearing on the person \u2019s sex .","The short - form certificates of civil status which third parties may procure do not state the descent or sex of the persons concerned ( LAW CARDINAL , first sub - paragraph , of LAW ) , but only their place and date of birth , family name and forenames .","On the other hand , certified copies of the full certificate may be obtained by the individual himself , his spouse or surviving spouse , his legal representative , his ascendants , descendants or rightful heirs , the public authorities and persons having a family , scientific or other legitimate interest ( LAW CARDINAL , second sub - paragraph ) .","Identity cards , passports and driving licences do not specify the sex of the holder ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61760","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2004,"docname":"CASE OF \u00c9DITIONS PLON v. FRANCE","importance":1,"conclusion":"No violation of Art. 10 with regard to the interim injunction;Violation of Art. 10 with regard to the permanent injunction;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"","text":["On DATE the applicant company acquired the publishing rights for a book entitled FAC ( \u201c The Big Secret \u201d ) from a Mr Gonod , a journalist , and a Dr PERSON , who had been private physician to President PERSON for DATE . The book gave an account of the relations between PERSON and the President , describing how the former had organised a medical team to take care of the latter , who had been diagnosed with cancer in DATE , DATE after he had first been elected President of GPE . It recounted in particular the difficulties PERSON had encountered in concealing the illness , given that President PERSON had undertaken to issue a health bulletin DATE .","The book was due to be published in DATE , while President PERSON was still alive . However , following the President 's death on DATE , the authors and PERSON decided to postpone its publication .","On DATE the DATE newspaper ORG published an article which revealed that President PERSON had been suffering from prostate cancer since the beginning of his first DATE term of office and pointed out that the public had not been officially informed about his illness until DATE . The article also stated that President PERSON had dismissed PERSON in DATE , choosing instead to be treated with medicine described by the applicant company as \u201c alternative \u201d .","Those revelations were the subject of extensive comment in the media . Questions were asked , in particular , about the quality of the treatment received by President PERSON .","A former cultural adviser to President PERSON had already claimed in a book entitled PERSON des adieux , published by ORG in DATE , that the President had not received proper treatment . In addition , shortly after the President 's death , CARDINAL of his brothers made similar allegations . The head of the cancer treatment department at FAC did likewise , in particular asserting on the radio station LOC CARDINAL that \u201c for DATE [ President PERSON had been ] given nothing but magical cures , and these techniques were completely ineffective in treating his illness \u201d .","On DATE , however , ORG published a statement by the President of ORG ordre des m\u00e9decins ( ORG ) to the effect that \u201c according to the information in [ his ] possession , the President [ had ] received perfectly appropriate treatment \u201d . Furthermore , on DATE the President 's widow and children had issued a statement emphasising that they maintained their trust in the medical team that had looked after him .","As PERSON considered that his reputation had been called into question , it was decided to publish FAC on DATE . The following text appeared on the back cover :","\u201c On DATE PERSON was elected President of GPE .","On DATE , DATE , medical examinations revealed that the head of ORG was suffering from cancer . Statistically , he had DATE to live .","A handful of doctors resolved to fight the illness , driven by the obsession to save the President and to obey his instruction that the NORP public should know nothing about the matter . It became a ORG secret .","Only PERSON , private physician to PERSON during his CARDINAL terms of office , could have provided us with the astonishing account of how the President cheated death for DATE , taking each day at a time .","These revelations will transform our image of a man who led GPE for DATE . \u201d","On an urgent application lodged on DATE by President PERSON 's widow and children , who complained of a breach of medical confidentiality , an invasion of President PERSON 's privacy and injury to his relatives ' feelings , the President of the GPE tribunal de grande instance issued an injunction on DATE prohibiting the applicant company and PERSON from continuing to distribute FAC , on penalty of MONEY ( ORG ) per book distributed , and instructed a bailiff \u201c to procure all documents containing details of the print run and the number of copies in circulation \u201d .","The urgent - applications judge based her decision on the following grounds :","\u201c All people , regardless of their rank , birth or function , have the right to respect for their private life .","This protection extends to their relatives where the relatives are justified in asserting their right to respect for their own private [ and ] family life .","What is in issue in the instant case are disclosures by President PERSON 's private physician , who treated and attended to him for DATE and in whom the patient and his family placed their trust .","...","They were made in breach of provisions that lay down a duty of professional confidentiality , all the more strictly where medical confidentiality is concerned , and the person who made them may be liable to the penalties provided for in LAW of LAW .","By their very nature , they constitute a particularly serious intrusion into the intimate sphere of President PERSON 's private family life and that of his wife and children .","The resulting interference is especially intolerable in that it has occurred within DATE of President PERSON 's death and burial .","Since this is a case of blatant abuse of freedom of expression resulting in a manifestly unlawful infringement of the claimants ' rights , it is within the power of the urgent - applications judge to order measures capable of putting an end to the infringement or limiting its scope . \u201d","In a judgment of DATE , ORG upheld the injunction and gave the claimants DATE to apply to a court with jurisdiction to examine the merits of the case , indicating that if such an application was made , the injunction and penalty for non - compliance would remain in force until a ruling was given on the merits , but that if no such application was made , those measures would cease to have effect on the expiry of the DATE period .","The judgment began by noting the definition of medical confidentiality in LAW , and emphasised that \u201c the death of the patient does not release a medical practitioner from the duty of confidentiality \u201d . It went on to quote the text on the back cover and identified some CARDINAL disclosures made in the book , together with page references , about facts \u201c of which PERSON had become aware in the performance of his professional duties as physician to PERSON \u201d and which \u201c as such ... [ were ] manifestly covered by the rules of medical confidentiality \u201d . The judgment stated :","\u201c ...","... the disclosure , through publication of the book FAC , of facts covered by the duty of medical confidentiality by which the co - author of the book is bound is manifestly unlawful .","The innermost feelings of PERSON and of PERSON children have been offended by this public disclosure of information pertaining both to the character and private life of their husband and father and to their own sphere of intimacy by the private physician to the late NORP President , in whom the latter had placed his trust , under the protection of a lawfully established duty of professional confidence of which all medical practitioners are solemnly reminded when the Hippocratic oath is read out on their admission to the profession .","...","... prohibition of the distribution of a book can only be an exceptional measure .","However , in view of the space they occupy , the above passages from FAC , which disclose facts covered by the duty of medical confidentiality by which the co - author of the book is bound , can not be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it .","Accordingly , the decision by the first - instance judge to prohibit the [ applicant ] company and PERSON from continuing to distribute the book Le Grand Secret was based on a precise assessment of the interim measure likely to put an end to the manifestly unlawful infringement resulting from such disclosures .","...","Although the first edition of the book in question was marketed before the date of the injunction appealed against , and although information published in the book has been divulged by various media since the injunction was issued , the ensuing circumstances are not capable of putting an end to the manifestly unlawful infringement that would necessarily result from resumed distribution of the book .","Consequently , the injunction issued by the first - instance judge should remain in force .","However , the necessarily temporary nature of such a measure dictates that its validity should be limited in time by such means as to afford the parties an opportunity to submit argument in the dispute between them , within a reasonable time , before a court with jurisdiction to examine the merits of the case .","To that end , the respondents should be given DATE , from the date of delivery of this judgment , to bring their dispute before such a court . It should further be specified that if an application for an examination of the merits is made within this period , the injunction will remain in force , unless the court in question rules otherwise , until the delivery of its decision , but that if no such application is made within this period , the injunction will immediately cease to have effect . \u201d","In a judgment of DATE , ORG dismissed appeals on points of law by the applicant company and PERSON against the judgment of DATE .","ORG considered that ORG had established the existence of a manifestly unlawful infringement by holding that disclosures made in the book about the development of PERSON condition had been in breach of medical confidentiality , and that it had been exclusively within ORG jurisdiction to rule that the injunction prohibiting the continued distribution of the book , as an interim measure valid for a limited period only , was the only means of putting an end to the infringement pending a decision on the merits .","NORP In the meantime , on DATE , the GPE public prosecutor had summoned PERSON to appear in ORG on a charge of breaching professional confidence during DATE and DATE , DATE and DATE and DATE by having disclosed information to PERSON and Mr PERSON , the managing director of Editions PERSON , about President PERSON 's health and the treatment he had been prescribed . Mr PERSON and PERSON had also been summoned to answer a charge of aiding and abetting that offence . President PERSON 's widow and CARDINAL children had applied to join the proceedings as civil parties but had not filed claims for damages .","In a judgment of DATE , ORG found PERSON guilty of breaching professional confidence and PERSON and PERSON guilty of aiding and abetting the same offence . It sentenced PERSON to DATE imprisonment , suspended , and fined Mr PERSON and Mr PERSON FRF CARDINAL and FRF CARDINAL respectively . The judgment emphasised , in particular , that by signing a publishing contract on CARDINAL DATE , and subsequently by delivering his manuscript with a view to its publication , PERSON had publicly disclosed confidential information entrusted to him , and that \u201c publication of an entire book based on a breach of medical confidentiality amounted , on Mr PERSON part , to a serious breach of his professional duties , calling for a stern reminder of the law \u201d .","As no appeal was lodged , the judgment became final on DATE .","Alongside those proceedings , on DATE President PERSON 's widow and CARDINAL children had brought proceedings against PERSON and PERSON ( both in his personal capacity and as the statutory representative of the applicant company ) in the GPE tribunal de grande instance , seeking an order prohibiting resumption of the publication of FAC or , in the alternative , deleting certain pages and paragraphs . They also sought an award of damages . They argued , in particular , that the book contained disclosures that breached medical confidentiality and invaded President PERSON 's privacy in such a way as to interfere with the feelings and personal life of his widow and children . They further submitted that some of these \u201c indiscretions \u201d amounted to direct personal attacks on their own sphere of intimacy .","In a judgment of DATE , the GPE tribunal de grande instance ordered PERSON , PERSON and the applicant company jointly and severally to pay damages of ORG CARDINAL,CARDINAL to PERSON and ORG CARDINAL to each of the other claimants , and maintained the ban on distribution of FAC . The judgment stated , inter alia :","\u201c ...","Merits of the applications","A reading of the book FAC reveals that its contents include :","( a ) a description of the President 's ' health regime ' at the time when arrangements were being made for the ' medical care ' with which he was to be provided throughout his time in office ( pages ... ) ;","( b ) a reference to the initial symptoms of his illness ( page ... ) and an account of the medical examinations which he underwent in DATE ( page ... ) ;","( c ) the results of these examinations and the subsequent discussions between PERSON and his doctors ( pages ... ) ;","( d ) a description of the medical examination carried out on PERSON by Professor [ S. ] on DATE , and an account of the conversation in which Professor [ S. ] and PERSON informed PERSON of the nature of his illness and the forms of medical treatment it required ( pages ... ) ;","( e ) a description of a treatment protocol prescribed by Professor [ S. ] and PERSON and the manner in which the treatment was administered to PERSON ( pages ... ) ;","( f ) an indication of the pseudonym under which biological tests concerning PERSON were carried out by a private laboratory ( page ... ) and of the frequency and nature of such tests ( pages ... ) ;","( g ) a description of certain physical disorders that affected PERSON and an indication of the medicine he was given in order to treat them and prevent their recurrence ( pages ... ) ;","( h ) a description of anxiety attacks suffered by PERSON ( pages ... ) ;","( i ) a description of the side - effects of the medical treatment received by PERSON ( page ... ) ;","( j ) information on developments in PERSON health and the impact of such developments on his behaviour ( pages ... ) ;","( k ) a description of the circumstances in which certain health bulletins on PERSON were drawn up ( pages ... ) ;","( l ) a description of other medical practitioners ' dealings with PERSON and the power struggles between various members of his medical team ( pages ... ) ;","( m ) an account of the operation performed on PERSON on DATE ( pages ... ) ;","( n ) a description of the medical treatment which PERSON received and the medical examinations he underwent in DATE ( pages ... ) ;","...","The events described in the above passages from FAC became known to PERSON in the performance of his professional duties as physician to PERSON or members of his entourage . Although they do not relate directly to medical facts , PERSON could only have become aware of them while practising his profession ; accordingly , they were manifestly covered by the duty of medical confidentiality by which he was bound . They were disclosed unlawfully , firstly when PERSON , wishing to provide the public with a ' chronological account ' of the head of ORG 's illness , contacted the journalist PERSON and wrote the manuscript for the book in conjunction with him ; subsequently , when the manuscript was submitted to PERSON in DATE with a view to its publication by PERSON ; and finally , when the book went on sale DATE after PERSON death , the publisher laying emphasis in the text on the back cover on the fact that only PERSON , through his privileged position in relation to the head of ORG , could have written this ' astonishing account ' .","Neither PERSON alleged desire to restore the truth by informing the public about facts that had been kept from them for DATE ... nor the fact that while PERSON was alive incomplete bulletins about his health were published , which the physician nonetheless agreed to sign , serve as justification for the disclosures in question . The duty of medical confidentiality is general and absolute and does not allow medical practitioners to transform themselves into guarantors of the proper functioning of ORG institutions or into historical witnesses .","Furthermore , nothing can release medical practitioners from their obligation to remain silent , since the duty of professional confidence exists not only to protect the interests of those who confide in them , but also to guarantee the reputation that medical practitioners must enjoy among all those who require medical assistance .","Although a practitioner whose competence or integrity has been called into question may be required to breach the duty of confidence in order to prove the quality of his treatment or his good faith , this is subject to the condition that such disclosure is limited to the strict requirements of his defence in court and does not , as in the instant case , take the form of deliberate public divulgence of information .","...","Redress","The specific purpose of civil liability is to restore as precisely as possible the balance that has been upset by the damage and to return the victim , at the expense of the party held liable , to the position in which he or she would have been had the prejudicial act not occurred . This principle means that , when affording redress for non - pecuniary damage , the courts are able not only to award damages to the victim in compensation for the harm already sustained , but also to prevent any subsequent damage by ordering the elimination of its cause .","The offence caused to the LOC and PERSON by the disclosure of their own doctor 's deliberate breaches of the necessary confidentiality of his relations with both PERSON and themselves over DATE , the publisher 's desire to draw attention to the book in a spectacular manner by rushing to print and sell it immediately after the announcement of PERSON death ( the possibility of a mere coincidence of events can not be seriously entertained ) , the advance communication of extracts from the book to certain sections of the press for obvious promotional purposes , and the book 's substantial initial print run ( CARDINAL copies were distributed and sold from DATE ) justify an award of damages to the claimants as set out in the operative provisions of this judgment ... and the continuation of the prohibition on the distribution of the book ordered by the urgent - applications judge .","In this connection , ... prohibition of the distribution of a piece of writing entailing an infringement of human rights ... [ is ] , regard being had to the principles governing civil liability , [ a ] legally acceptable means of redress designed to put an end to the injury suffered by the victim and to prevent the recurrence of the damage that would necessarily result from resumption of the distribution of the piece of writing .","...","Contrary to what PERSON maintained in his submissions , the time that has elapsed since PERSON death can not have had the effect of definitively putting an end to the infringement observed when the book was published and rendering lawful the distribution of a book purporting to be a ' witness account of the historical truth about the President 's CARDINAL terms of office , to which the NORP people should have access ' ... , when the defendant is not authorised to give a historical analysis of facts which became known to him in the performance of duties in which he was bound by absolute confidentiality .","Although , in spite of the injunctions of DATE and CARDINAL DATE prohibiting distribution of the book , information contained in FAC has been divulged through various media , the ensuing situation is not capable of preventing the injury and damage that would result for the claimants from resumed distribution of the book , with the particular light which the comments of a doctor shed not only on relations with members of the family circle with whom he was in close contact , but also on the most intimate reactions of PERSON to his illness .","In view of the space they occupy , the above passages from FAC , which disclose facts covered by the rules of medical confidentiality , can not be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it ... \u201d","On an appeal by the applicant company , PERSON and PERSON , ORG gave judgment on DATE . It cleared Mr PERSON on the ground that the production and sale of FAC did not constitute a separate tort from the one attributable to the applicant company . It also declared inadmissible the action brought by the PERSON family in so far as it concerned the protection of President PERSON 's private life , pointing out in that connection that \u201c the possibility for anyone to prohibit any form of disclosure about [ their private life ] is only open to the living \u201d . As to the alleged invasion of the privacy of the LOC themselves , ORG noted that certain passages from the book in issue \u201c entail[ed ] invasions of the LOC ' privacy \u201d , but considered that such infringements could not , \u201c regrettable though they may have been , justify \u2013 regard being had , in particular , to their sporadic occurrence in the book \u2013 prohibiting publication of the book as a whole \u201d .","However , holding that PERSON had breached the duty of medical confidentiality by which he was bound , ORG ordered him and the applicant company jointly and severally to pay damages in the amount determined in the first - instance judgment , and upheld the decision to maintain the ban on distribution of the book . The judgment of CARDINAL DATE stated , in particular :","\u201c ...","The breach of medical confidentiality","It was established in the judgment [ of ORG ] of DATE , which has become final and binding on the civil courts , that PERSON breached the duty of medical confidentiality by which he is bound .","It was rightly observed in that decision that breach of professional confidence was made a criminal offence not only in the public interest but also in the interests of private individuals , in order to guarantee the security of the confidential information which they are required to entrust to certain persons on account of their status and profession . The duty of medical confidentiality is founded on the relationship of trust essential to the provision of medical treatment , whereby patients are assured that anything they tell their doctor or cause him to see , hear or understand , as a person in whom such information must be confided , will not be disclosed by him .","DATE paragraph , of LAW provides that medical confidentiality covers ' everything that has come to the attention of medical practitioners in the practice of their profession , that is , not only what has been confided in them but also what they have seen , heard or understood ' .","Since PERSON was in the company of Mr PERSON solely on account of his position as his doctor , all the information he recounts in his book , which he learned or observed while practising his profession , is covered by the duty of medical confidentiality by which he is bound vis - \u00e0 - vis his patient , although it may also constitute interference with the patient 's private life or sphere of intimacy .","The PERSON family have inherited from Mr PERSON the right to bring proceedings against the appellants . Although FAC was published after PERSON death , it should be noted that the book was in fact the subject of a publishing contract signed on DATE ] , prior to his death .","Accordingly , the Mitterrands have inherited from the deceased the right both to obtain redress for the breaches of medical confidentiality resulting from the disclosure of confidential information to PERSON in DATE and DATE and to PERSON in DATE , as the criminal court held , and to obtain compensation for the consequences of the decision taken on DATE to publish the book ; this possibility is not excluded by the judgment of CARDINAL DATE and is not contrary to the principle of res judicata in relation to that judgment .","Redress","The exercise of freedom of expression , a principle with constitutional status set forth in LAW ... , carries with it duties and responsibilities ; it may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society , for example for the protection of health , for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence .","In the instant case the prohibition of the book complained of is necessary since it is the only means of putting an end to the damage sustained and to the criminal offence which it constitutes ... \u201d","In a judgment of DATE , ORG dismissed an appeal on points of law by PERSON and the applicant company . In response to their ground of appeal based on LAW , it held :","\u201c ... ORG held that all the information published had been obtained by PERSON in the performance of his professional duties as private physician to PERSON , so that it was covered by the rules of medical confidentiality , although it could also constitute interference with the right to respect for private life . After observing that the breach of medical confidentiality had been established by a criminal court , ORG , pointing out that the exercise of freedom of expression could be subject to certain restrictions , in particular for the protection of the rights of others , justified its decision in law in holding , in the exercise of its exclusive jurisdiction , that discontinuing the distribution of the book was the only means of putting an end to the criminal offence and the damage sustained , its assessment of which is not subject to appeal ... \u201d","However , partly allowing an appeal on points of law by the ORG , ORG quashed and annulled the judgment of DATE in so far as it had cleared PERSON , and remitted the case , on that point , to a differently constituted bench of ORG . The outcome of that aspect of the proceedings has not been specified by the parties .","The parties have stated that an electronic version of the text of FAC is available on the Internet . They have not indicated who decided to disseminate the text in this form or the date when it became available .","The obligation of medical confidentiality incumbent on medical practitioners is set forth in the following provisions of LAW \u00a8Practitioners :","\u201c The duty of professional confidentiality , established in the interests of patients , shall apply to all medical practitioners as provided by law .","Such confidentiality shall cover everything that has come to the attention of medical practitioners in the practice of their profession , that is , not only what has been confided in them but also what they have seen , heard or understood . \u201d","\u201c Medical practitioners must ensure that persons who assist them in their practice are informed of their obligations regarding professional confidence and comply with them .","They must ensure that those around them do not breach the confidentiality attaching to their professional correspondence . \u201d","\u201c Medical practitioners must protect from any indiscretion the medical documents concerning persons whom they have treated or examined , irrespective of the content or form of such documents .","The same shall apply to any medical information that may be in their possession .","When using their own experience or documents for the purposes of academic publishing or teaching , medical practitioners must ensure that individuals can not be identified . Failing this , the consent of the persons concerned must be obtained . \u201d","Breaching professional confidence is a criminal offence under LAW of LAW , which provides :","\u201c The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by DATE imprisonment and a fine of CARDINAL . \u201d","ORG has held that \u201c what the law intended to guarantee is the security of confidential information which individuals are required to disclose to persons whose position or profession makes it necessary , in the general public interest , to confide such information in them \u201d ( ORG ( PERSON . crim . ) , DATE , ORG . crim . ) no . CARDINAL ) . ORG has further held that \u201c the obligation of professional confidence , as set forth in Article CARDINAL - CARDINAL of LAW in order to ensure the necessary trust in the practice of certain professions or the performance of certain duties , is incumbent on medical practitioners , save where the law provides otherwise , as a duty inherent in their position [ and ] , subject only to this proviso , is general and absolute \u201d ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) , and that \u201c no one is entitled to release them from it \u201d ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) . In a case concerning a lawyer , it has held that \u201c the obligation of professional confidence , as set forth in LAW , is incumbent on lawyers as a duty inherent in their position [ and that ] knowledge by others of facts covered by the confidentiality rule does not mean that they are no longer confidential and secret \u201d ( PERSON . crim . , CARDINAL DATE , ORG . crim . no . CARDINAL ) .","Article CARDINAL - CARDINAL of LAW ( in its wording resulting from PERSON no . DATE of DATE ) provides :","\u201c Article CARDINAL - CARDINAL shall not apply in cases where the law requires or authorises disclosure of confidential information . Nor shall it apply to :","( CARDINAL ) NORP persons who inform the judicial , medical or administrative authorities of acts of deprivation or ill - treatment , including sexual assault , of which they have knowledge and which have been inflicted on a minor DATE or a person unable to protect himself or herself because of his or her age or physical or mental condition ;","( CARDINAL ) medical practitioners who , with the victim 's consent , bring to the attention of a public prosecutor acts of ill - treatment which they have noted in the practice of their profession and which cause them to suspect that sexual assault of any nature has been committed ;","( CARDINAL ) NORP health or welfare professionals who inform the prefect , or , in GPE , the Commissioner of Police , of the danger posed to themselves or others by persons who consult them and whom they know to be in possession of a weapon or to have indicated their intention to acquire CARDINAL .","No disciplinary measures may be taken where a medical practitioner has reported acts of ill - treatment to the relevant authorities in accordance with this LAW . \u201d","ORG has held that , although professional confidentiality is a strict obligation , it can not prohibit medical practitioners whom a patient has attempted to involve in fraud by causing them , through deception , to issue a certificate falsely attesting to the existence of illness or disability from proving that they acted in good faith by giving evidence , in judicial proceedings relating to the fraud , about the means used to falsify their examination and impede their judgment , thereby causing them to issue the certificate ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) . The Government pointed out , however , that that was possible only on condition that the disclosure was limited to the strict requirements of the medical practitioner 's defence in court and did not take the form of a deliberate public disclosure ; they referred in that connection to a GPE judgment delivered by ORG on DATE , although they did not produce it or cite its publication reference . The applicant company produced a judgment of CARDINAL DATE in which ORG of ORG held that \u201c pursuant to LAW [ by which ' persons making a donation ... must be of sound mind ' ] , which amounts to authorisation within the meaning of Article CARDINAL - CARDINAL of LAW , practitioners are released from their obligation not to disclose facts which become known to them in the practice of their profession ; since the purpose of professional confidence is to protect the non - professional who confided such facts in the professional , they may be disclosed not only to the non - professional but also to persons with a legitimate interest in ensuring this protection \u201d . ORG inferred from this that the trial courts could rule that an expert appointed in proceedings for the determination and partition of an estate should have access to the deceased 's medical records without being blocked on grounds of medical confidentiality by the practitioner in possession of the records ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86605","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF UTSAYEVA AND OTHERS v. RUSSIA","importance":3,"conclusion":"Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants are :","( CARDINAL ) PERSON , born in DATE ;","( CARDINAL ) Mr PERSON , born in DATE ;","( CARDINAL ) PERSON , born in DATE ;","( CARDINAL ) PERSON , born in DATE ;","( CARDINAL ) PERSON , born in DATE ;","( CARDINAL ) PERSON , born in DATE ;","( CARDINAL ) PERSON GPE , born in DATE ;","( CARDINAL) PERSON , born in DATE .","They are NORP nationals and residents of the village of PERSON , PERSON district , GPE .","The facts of the case are linked to the application GPE v. GPE ( no . CARDINAL\/CARDINAL , ECHR DATE ... ( extracts ) ) , in that the CARDINAL relatives of the applicants in the present case were detained together with the husband of PERSON , PERSON , on DATE in the village of PERSON ( see below ) . The facts of the present case , as submitted by the parties , may be summarised as follows .","The applicants submitted that the village of PERSON had been under the firm control of the NORP military since DATE . Military checkpoints had been established at all roads leading into and out of the village .","The applicants submitted that early in the morning of DATE a convoy including CARDINAL armoured personnel carriers ( APCs ) and CARDINAL other military vehicle - a ORG all - terrain car - conducted a \u201c sweeping \u201d operation in the village of PERSON . The local residents noted the hull numbers of CARDINAL APCs : CARDINAL , CARDINAL and DATE , and partially of the UAZ vehicle as \u201c CARDINAL \u201d . The hull numbers of the other vehicles were obscured . The servicemen went to CARDINAL houses during the operation and detained CARDINAL men . The applicants submitted numerous affidavits about the events of DATE , produced by the family members of the detained and the neighbours . They also submitted a hand - drawn map of the village , indicating the location of the roadblocks and of the houses of the QUANTITY persons detained on DATE .","The first and second applicants are husband and wife . They were residents of ORG , but have lived for DATE at CARDINAL FAC , PERSON , as internally displaced persons . Their son PERSON , born in DATE , had lived with them in GPE since DATE . He had previously been a student at the ORG philological faculty , but in DATE he was seriously injured during a rocket attack on the PERSON central market . Following that injury he underwent several operations and left the university . He worked as a car mechanic and supported his parents , who were unemployed . The couple 's second son had died during the hostilities of ORG , and CARDINAL son had been detained by security services and ill - treated in DATE , following which he suffered from poor health . The third applicant is PERSON wife .","On TIME DATE the first CARDINAL applicants , PERSON and his wife ( the third applicant ) , their other son PERSON and his wife PERSON . , were at their home at CARDINAL FAC . At that time the third applicant and PERSON . were both pregnant . It was still dark outside and the family was sleeping when , at TIME , an ORG knocked down the fence and drove into the courtyard . A group of CARDINAL heavily armed servicemen in uniform entered the house and woke up the family . CARDINAL of the servicemen were masked , the rest were not . The applicants described them as \u201c contract soldiers \u201d , aged DATE . They had NORP features and spoke unaccented NORP . More servicemen remained outside on the hull of the ORG , while others took positions around the house .","Without producing any warrant or explanation , the soldiers forced the PERSON family members into the courtyard and onto the ground . They surrounded PERSON and beat him . The second and third applicants were also beaten when they asked for explanations , and the third applicant , PERSON pregnant wife , submitted that she had a miscarriage DATE . PERSON , who was taken from his bed barefoot and wearing only a light T - shirt , was hooded , his hands were tied behind his back and he was forced into an ORG . The first applicant tried to climb onto the ORG to give her son footwear , but was pushed away and hit by several soldiers . The soldiers fired into the air from automatic rifles in order to scare away those neighbours who tried to intervene .","NORP In support of their allegations the first and the second applicants submitted detailed statements to the PERSON , produced in DATE and in DATE . The third applicant also produced a statement in DATE . In particular , they explained that the third applicant had been in DATE of pregnancy and that after the miscarriage they had not applied to any medical institution , nor had they complained anywhere about this incident .","In their observations the Government submitted that no information about the alleged beatings of the second and third applicants or a miscarriage by the third applicant had been recorded in the medical institutions of the LOC district . They also stated that the third applicant 's current place of residence was unknown and that her relatives had refused to give any evidence on the subject .","The fourth and fifth applicants are the mother and sister of PERSON , born in DATE . They lived at CARDINAL FAC in GPE . PERSON worked as a guard at the local school and was not married . His brother PERSON was killed by unknown persons in DATE , along with CARDINAL other men who had gone to gather firewood near the river LOC . In DATE his father , the fourth applicant 's husband , died of a heart attack .","At TIME on DATE the fourth applicant and her son PERSON were at their home when an ORG pulled up outside the house . The fourth applicant was at TIME , and her son ORG was still asleep . The fifth applicant , ORG 's sister , was in hospital for a check - up . CARDINAL men in green uniform entered the house . They were not wearing masks and the fourth applicant reported that they had NORP features and spoke unaccented NORP .","The military did not introduce themselves or give reasons for the visit . They woke up PERSON and ordered him to dress quickly . They said they needed to question him , collected his passport and took him outside . The fourth applicant followed them and pleaded with them to question her son at home . An officer told her that if he was innocent he would soon return . The soldiers put PERSON into an ORG . The fourth applicant tried to climb onto the hull , but the soldiers swore at her and hit her with rifle butts until she fell . Several neighbours tried to come closer and intervene , but soldiers who had taken positions around the house shot in the air as a warning .","Once PERSON was inside , the ORG drove further along FAC . The fourth applicant and her neighbours clearly noted its hull number as CARDINAL . The fourth applicant followed it along the street and witnessed from a distance how it stopped at the Tovmerzayevs ' house and how another person ( PERSON ) was put into it . The fourth applicant also noticed several other APCs along the street , though she did not notice their numbers .","The sixth applicant is the mother of PERSON , who was born in DATE . In DATE he finished the seventh grade at school and thereafter helped his mother around the house . They lived at CARDINAL Lenina Street with the sixth applicant 's CARDINAL other children .","On DATE the sixth applicant , her daughter PERSON and CARDINAL sons , PERSON , PERSON and PERSON , were sleeping at their home . At QUANTITY an ORG stopped at their house and a group of CARDINAL military servicemen surrounded the house , CARDINAL of them wearing masks . The applicant described them as heavily armed , wearing new camouflage uniforms and speaking unaccented NORP . CARDINAL servicemen entered the house , shouting and swearing . They pulled the sixth applicant 's CARDINAL sons onto the floor and asked their names . They then told PERSON to dress . The applicant 's oldest son asked them to take him instead of his DATE brother , but CARDINAL of the soldiers said \u201c We do n't need you \u201d . They took PERSON and placed him in an ORG with an obscured number . The applicant tried to get onto the ORG , but her eldest son pulled her off .","The sixth applicant asked a soldier with NORP features on the hull of the ORG where they were going , and he responded that they were going to the military commander 's office . The ORG drove along and stopped by a house further down the street to detain another person who was not at home . The sixth applicant followed the vehicle to the cemetery at the end of the village and then returned home .","The seventh and eighth applicants are the mother and sister of PERSON , born in DATE . He was unmarried and had worked at a shoe factory and at the market . They lived at CARDINAL FAC , together with the seventh applicant 's other children and grandchildren .","On DATE the seventh and eighth applicants and PERSON were at home . At TIME the applicants were awake , because the seventh applicant was planning to go to town and had to catch a bus ; the eighth applicant had to take care of the family 's cattle . PERSON was still in bed .","The seventh applicant opened the gate and at that point an ORG stopped outside their house . The woman was surprised and asked them if they were going to conduct a \u201c sweeping \u201d operation , but they did not answer . CARDINAL of the soldiers on the ORG asked \u201c Which gate ? \u201d and another pointed to the applicant 's . Immediately CARDINAL armed servicemen entered the courtyard . The applicants and neighbours described them as well armed and wearing green camouflage uniforms ; some of them were masked . The seventh applicant noted several men with NORP features among the servicemen .","The eighth applicant asked the seventh applicant to go into the house and watch to ensure that the soldiers did not \u201c plant \u201d anything there . The soldiers asked the eighth applicant where her brother was and went to his room . CARDINAL of them had a piece of paper and asked her \u201c Is that PERSON ? \u201d When she answered in the affirmative they put him on the floor and handcuffed him . CARDINAL of the servicemen asked about weapons , while others were searching the house and the car . They then placed PERSON in ORG no . CARDINAL , without permitting him to dress or to put on footwear , and drove away . The neighbours were not allowed to approach because the soldiers shot into the air . PERSON aunt , who came to the house because of the noise and tried to intervene , was pulled by the hair and hit by a soldier .","Finally , at around TIME on DATE servicemen on APCs CARDINAL and CARDINAL and UAZ CARDINAL drove to FAC , CARDINAL blocks away from the Tovmerzayevs ' house . At CARDINAL FAC they detained PERSON , husband of ORG . After the stop at the ORG ' house the APCs and other military vehicles left PERSON . Some of the military vehicles apparently drove towards PERSON , while others went in the direction of the CARDINALth regiment stationed near LOC . The families of the CARDINAL men detained on DATE in PERSON have had no news of them since .","In their observations the Government did not dispute most of the facts as presented by the applicants . They accepted as established that \u201c on DATE at TIME unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons , supported by armoured vehicles , arrived in PERSON and detained ORG , PERSON , PERSON , PERSON and PERSON .- M.U. These men were subsequently taken by the unidentified persons in an unknown direction . \u201d","NORP Immediately after the detention of their family members the applicants started to search for them . The search was primarily carried out by the mothers of the detained men , together with PERSON , the applicant in application no . CARDINAL\/CARDINAL . On numerous occasions , both in person and in writing , they applied to prosecutors at various levels , to ORG , to the Special Envoy of the NORP President in GPE for rights and freedoms , to military commanders , ORG ( ORG ) , to the administrative authorities in GPE , to the media and to public figures . The applicants also personally visited detention centres , police stations , military bases and prisons in GPE as well as further afield in LOC .","On DATE , immediately after the arrests , the CARDINAL mothers , together with ORG and NORP , the head of the NORP administration , drove in the PERSON ' family minibus to PERSON , the district centre , to inquire about the whereabouts of their relatives . At the military commander 's office in PERSON the applicants unsuccessfully sought to meet with the commander , General PERSON They were told by the staff at the military commander 's office that they had not received any detainees that TIME . They received a similar answer at the police station .","DATE , on DATE , the applicants again travelled to PERSON . Abdula D. , the head of the village administration , was permitted to meet with General PERSON , who allegedly confirmed to him that the men had been detained at the military commander 's office and would be released in DATE .","Having waited for DATE , the applicants again visited the commander 's office in PERSON , accompanied by the head of the village administration . About ten days later the commander 's office staff denied that the detainees had been there .","At some point in DATE the applicants managed to meet with General PERSON , who denied that his servicemen had participated in a military operation in PERSON on the date in question . At that time the applicants spotted APC no . CARDINAL in the courtyard of the commander 's office . At their insistence the commander questioned the driver of the vehicle about the events of DATE . The driver confirmed that CARDINAL men had been detained and driven away in the ORG on DATE , but claimed that they had been handed over to other military servicemen at a checkpoint .","The applicants unsuccessfully tried to meet with the officers of the military prosecutor 's office in LOC in order to have the drivers of the APCs and other servicemen questioned .","In addition to personal visits , the applicants addressed numerous letters to the prosecutors and other authorities , in which they set out the facts of their relatives ' detention and asked for assistance and details about the investigation . The applicants have submitted copies of the more or less standard letters they wrote .","The applicants received hardly any substantive information from official bodies about the investigation into the disappearances . On several occasions they were sent copies of letters forwarding their requests to the different prosecutors ' services . Below is a summary of letters retained by the applicants and the replies they received from the authorities .","On DATE the first applicant wrote to the head of the LOC administration in relation to ORG detention and requested assistance in finding him . She also mentioned the \u201c rough \u201d treatment meted out to herself and other family members in the course of her son 's arrest .","Either on DATE or immediately after , in CARDINAL identically worded complaints , the applicant wrote to the military commander of the LOC district General PERSON , the military prosecutor of the LOC district and the head of the LOC temporary district police department ( PERSON ) .","On DATE the first applicant wrote to the military prosecutors of military units FAC . DATE and DATE , based in LOC and PERSON ( PERSON ) , stating details of her son 's detention and requesting their help in finding him . Also on DATE the first applicant wrote a similar letter to the head of the GPE village administration , NORP","On DATE the first applicant wrote to the State PERSON member for GPE and to the Special Envoy of the NORP President in GPE for rights and freedoms .","On DATE the first applicant wrote a complaint to the NORP district prosecutor 's office ( \u201c the district prosecutor 's office \u201d ) , with copies to the head of administration of GPE and the commander of the federal forces in GPE . She stated the facts of her son 's detention and asked for assistance in finding him . She submitted that the servicemen had thrown her son on the floor and taken him away undressed , beaten her husband on the head with a rifle butt and had treated the women of the house \u201c rudely and incorrectly \u201d .","On DATE the applicant received a reply from the member of ORG for GPE , in which he informed her that her letter had been forwarded to ORG and that he would try to establish whether her son had been detained by the authorities .","On DATE the first applicant again wrote to the military prosecutor of military unit no . DATE and the heads of administration of PERSON and the NORP district , with requests for information about PERSON .","On DATE the district prosecutor office informed the applicant that the investigation into her son 's kidnapping had been suspended . The letter did not give reasons for the suspension , but informed her that she could appeal against the decision to the district prosecutor or to a \u0441ourt .","On DATE the first applicant received a copy of a letter from ORG , forwarding her compliant to the district prosecutor 's office .","On DATE ORG informed the first applicant that the investigation into her son 's kidnapping had been suspended on DATE due to a failure to identify the culprits ( LAW part CARDINAL of the Code of Criminal Procedure ) . The applicant was invited to address further queries to the district prosecutor 's office .","On DATE and on DATE the district prosecutor 's office acknowledged receipt of the applicant 's complaints and informed her that the investigation into PERSON \u201c disappearance \u201d had been suspended .","DATE . On DATE the Chief Military Prosecutor 's Office requested the military prosecutor 's office of ORG in LOC ( UGA ) to investigate the \u201c disappearance \u201d of the first applicant 's son and of the other men detained on DATE .","On DATE the applicant submitted a complaint ( dated DATE ) to the military prosecutor of the ORG , summarising the facts of her son 's disappearance and the efforts to find him and requesting assistance .","On DATE ORG forwarded complaints by CARDINAL applicants ( PERSON , PERSON and PERSON ) to the district prosecutor 's office . On DATE and DATE the CARDINAL women were informed by the district prosecutor 's office that their complaints would be looked into .","On DATE ORG informed the first applicant that they had forwarded her letter to the military prosecutor of the ORG . The letter stated that investigation file no . CARDINAL had been sent to the military prosecutor 's office on DATE .","In DATE the Government of GPE twice informed the first applicant that her complaints had been forwarded to the military prosecutors , to ORG and to the local department of ORG .","On DATE the first applicant asked the district prosecutor 's office to give her an update on the progress of the investigation and to grant her victim status in the proceedings .","On DATE the military prosecutor of the ORG forwarded the applicant 's complaint to the military prosecutor of military unit no . DATE .","On DATE ORG of the Interior replied to the deputy head of the investigative department of ORG , stating that the criminal case opened into ORG disappearance had been forwarded to the military prosecutors on DATE .","On DATE the military prosecutor of military unit no . CARDINAL informed the first applicant that the materials of the case file did not prove the involvement of military servicemen in the crime under investigation .","On DATE , DATE and DATE ORG informed the applicant in similarly worded letters that the decision of DATE to suspend the investigation into her son 's kidnapping had been quashed and that the investigation had been reopened on CARDINAL DATE .","On DATE the military commander of the NORP district informed the applicant that the district prosecutor 's office was investigating her son 's \u201c disappearance \u201d .","On DATE the military prosecutor of military unit no . ORG replied to the first applicant 's complaints of DATE and DATE and DATE . The letter stated that the criminal investigation opened in relation to the kidnapping of CARDINAL men in DATE was pending with that office . The letter did not say whether the investigation was suspended or ongoing , but invited the applicant to come to the office to take part in procedural steps and to obtain access to the case file . The letter also stated that no evidence had been obtained which could link the kidnapping to any military servicemen .","At some point the applicant wrote to the all - NORP ORG channel , addressing their programme \u201c Attention : Search ! \u201d She asked the journalists to help in finding her son PERSON . In reply the ORG stated that work in GPE was too dangerous for journalists .","On DATE the fourth applicant received a copy of a letter from the military prosecutor of military unit no . DATE to ORG , stating that there was no evidence to conclude that the criminal acts in question had been committed by UGA servicemen .","On DATE the district prosecutor 's office informed the fourth applicant that an investigation had been opened by their office , under LAW part QUANTITY of LAW , in relation to the kidnapping of PERSON .","On DATE and DATE ORG informed the fourth applicant that her complaints had been forwarded to the district prosecutor 's office .","On DATE the district prosecutor 's office informed the applicant that the investigation into her son 's kidnapping ( file no . DATE ) had been suspended . The letter did not give reasons for the suspension , but informed her that she could appeal against the decision to ORG or to a \u0441ourt .","On DATE the military prosecutor for ORG forwarded the applicant 's complaint to the military prosecutor of military unit no . DATE .","On DATE the district prosecutor 's office informed the fourth applicant that her complaint of CARDINAL DATE about her son 's disappearance could not be considered , because it had not been signed by her . The applicant was invited to the prosecutor 's office to obtain information concerning the criminal investigation .","DATE . On DATE the applicant 's complaint dated DATE was accepted by the military prosecutor of the ORG . The complaint summarised the applicant 's efforts to find her son and requested urgent assistance .","On DATE the district prosecutor 's office informed the fourth applicant , in reply to a request from ORG made on her behalf , that criminal case no . DATE had been opened by that office in relation to her son 's kidnapping . All necessary and possible measures had been taken , but on DATE the investigation had been suspended due to the failure to identify the culprits . The letter further informed the applicant that measures to find her son were continuing and that she could challenge the decision to suspend the investigation .","On DATE the military prosecutor of military unit no . CARDINAL informed the fourth applicant that troops under their jurisdiction had not detained her son . The letter advised her to approach the local police .","On DATE the applicant complained to the district prosecutor 's office . She stated that she had not received any information about the course of the investigation and requested updated information about its progress , and asked that she be granted victim status .","On DATE the district prosecutor 's office informed the fourth applicant that criminal case no . DATE had been suspended . Actions aimed at locating ORG whereabouts would continue . The applicant was also informed that she had been granted victim status .","On an unspecified date NORP , the head of the GPE village administration , addressed the Special Envoy of the NORP President in ORG , asking him to intervene and help to find PERSON .","On DATE the fourth applicant was granted victim status in criminal investigation no . DATE into her son 's abduction .","On DATE the sixth applicant prepared a letter to the military prosecutor of military unit no . DATE about the detention of her son , PERSON . The complaint was submitted on DATE .","DATE . On DATE the sixth applicant complained about her son 's detention and requested his release and information about his whereabouts from the district prosecutor 's office , the military commander and the head of the VOVD .","On DATE the sixth applicant received a copy of the letter from the military prosecutor of military unit no . DATE to ORG , which stated that there was no evidence to conclude that the criminal acts had been committed by UGA servicemen .","On DATE the district prosecutor 's office informed the applicant that an investigation had been opened by their office in relation to the kidnapping of her son under LAW part QUANTITY of LAW .","On DATE the applicant was informed by the district prosecutor 's office that the file number allocated to the investigation into her son 's kidnapping was DATE .","On DATE ORG forwarded the applicant 's complaint to the district prosecutor 's office .","On DATE ORG informed the sixth applicant that her complaints had been forwarded to ORG of the Interior , the district prosecutor 's office and the ORG , the military prosecutor 's office and ORG .","On DATE the district prosecutor 's office informed the applicant that they were investigating criminal case no . DATE and taking steps to establish her son 's whereabouts .","On DATE the district prosecutor 's office informed the sixth applicant that the investigation into her son 's kidnapping had been suspended .","On DATE the military prosecutor for the LOC military circuit forwarded the applicant 's complaint to the military prosecutor of military unit no . FAC .","On DATE the military prosecutor of military unit no . CARDINAL informed the applicant that they had requested information about PERSON from the GPE department of the ORG , the commander of the ORG and the head of the operative headquarters for coordination of the anti - terrorist operation in LOC .","On DATE the GPE department of the ORG replied to the applicant that they had no information about the whereabouts or activities of her son . It further informed the applicant that her complaint had been forwarded to the military prosecutors .","On DATE ORG forwarded complaints by CARDINAL applicants ( PERSON , PERSON and PERSON ) to the district prosecutor 's office . On DATE and DATE the CARDINAL women were informed by that office that their complaints would be taken into account .","On DATE the applicant wrote to the district prosecutor 's office . She stated that she had not received any reliable information about the course of the investigation , requested updated information about its progress and asked that she be granted victim status .","On DATE the district prosecutor informed the sixth applicant that the criminal investigation into the kidnapping of her son had been suspended . Actions aimed at locating Mr PERSON 's whereabouts were continuing .","On an unspecified date PERSON , the head of the GPE village administration , addressed the Special Envoy of the NORP President in ORG , asking him to intervene and help find the sixth applicant 's son .","On DATE the seventh applicant received a copy of a letter from the military prosecutor of military unit no . DATE to ORG , stating that there was no evidence to conclude that the criminal acts had been committed by UGA servicemen .","On DATE the district prosecutor 's office informed the applicant that an investigation had been opened by their office , under LAW part QUANTITY of LAW , in relation to the kidnapping of PERSON .","On DATE the district prosecutor 's office informed the applicant that a criminal investigation into her son 's kidnapping had been opened under file no . DATE .","On DATE ORG informed the seventh applicant that the district prosecutor 's office was investigating criminal case no . DATE and taking steps to establish her son 's whereabouts .","On DATE the Government of GPE informed the seventh applicant that her complaints had been forwarded to the district prosecutor 's office .","On DATE and on DATE the district prosecutor 's office informed the seventh applicant that the investigation into her son 's kidnapping had been suspended and that she could appeal against the decision to a prosecutor or to the court .","On DATE the applicant wrote to the head of the ORG administration and asked for his help in finding her son .","On DATE the military prosecutor for the LOC military circuit forwarded the seventh applicant 's complaint to the military prosecutor of military unit no . DATE .","On DATE the military prosecutor of military unit no . ORG informed the seventh applicant that they were not aware of PERSON detention and had not issued any documents in that respect . The letter further stated that a question about the applicant 's son 's whereabouts had been put to the ORG headquarters and that she should contact the local department of the interior in connection with all issues related to the search for the missing persons .","On DATE the GPE department of the ORG replied to the applicant that they had no information about the whereabouts of her son . It further informed the applicant that her complaint had been forwarded to the military prosecutors .","On DATE ORG forwarded complaints by CARDINAL applicants ( PERSON , PERSON and PERSON ) to the district prosecutor 's office . On DATE and DATE the CARDINAL women were informed by that office that their complaints would be taken into account .","On DATE the seventh applicant 's letter , bearing the date of DATE , was accepted by the military prosecutor of the ORG . The letter stated the circumstances of her son 's detention and requested information about his whereabouts and the reasons for his detention .","On DATE the applicant wrote to the district prosecutor 's office . She stated that she had not received any reliable information about the course of the investigation , requested updated information about its progress and asked to be granted victim status .","On DATE the district prosecutor 's office responded that the investigation in criminal case no . DATE had been suspended .","On an unspecified date NORP , the head of ORG administration , addressed the Special Envoy of the NORP President in ORG , asking him to intervene and help in finding the seventh applicant 's son .","The applicants were thus informed that criminal investigations had been opened in respect of the kidnappings of their relatives : no . CARDINAL in respect of PERSON , no . DATE in respect of PERSON , no . DATE in respect of PERSON and no . DATE in respect of PERSON . From the letters received from the different authorities , the applicants could also understand that at some point the investigations were joined under no . DATE , initially opened in relation to the kidnapping of PERSON . The applicants were not informed by the prosecutors which steps had been taken in order to find their relatives , nor were they allowed access to the case files . In DATE the first applicant was informed by ORG that the decision to suspend the investigation into her son 's kidnapping had been quashed and that the investigation had been reopened . None of the applicants have received information on the progress of the investigation since DATE .","The applicants also understood that in DATE the investigation had been transferred from the district prosecutor 's office to the military prosecutors . At some subsequent point the case file was returned to the district office . However in DATE the military prosecutor of military unit no . ORG invited the first applicant to visit the office and informed her that the file was with them . The letter did not indicate whether the proceedings were pending or suspended at that time .","In their observations submitted in DATE the Government did not dispute the information concerning the apprehension and investigation into the kidnapping of PERSON , PERSON , PERSON and PERSON . Referring to the information obtained from ORG , the ORG stated :","\u201c On DATE at TIME unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons , supported by armoured vehicles , had arrived to PERSON and detained ORG , PERSON , PERSON , PERSON and PERSON .- M.U. These men were subsequently taken by the unidentified persons to an unknown direction .","On DATE , DATE and DATE the NORP district prosecutor 's office opened CARDINAL criminal investigation files into the kidnappings : CARDINAL . CARDINAL , CARDINAL , DATE , DATE and DATE under LAW part CARDINAL ( a ) and ( g ) of LAW .","Criminal investigation file no . DATE concerning the kidnapping of PERSON .- M.U. had been transferred for investigation to the military prosecutor of the ORG . \u201d","The Government also stated that the investigation had not confirmed the involvement of federal servicemen in the kidnapping of the applicants ' relatives . The indicated ORG hull numbers were not listed in the relevant registers . The investigations were adjourned and reopened on several occasions and were most recently resumed on DATE . Their progress was monitored by ORG .","In their additional Memorandum submitted in DATE the ORG submitted further details of the investigations . They stated that criminal case file no . CARDINAL had been opened on DATE into the kidnapping of PERSON . On DATE the first applicant had been questioned and granted victim status . She was again questioned on DATE , CARDINAL DATE and DATE . The second applicant was questioned on DATE and confirmed the circumstances of his son 's detention . CARDINAL neighbours were questioned but could not indicate the identity of the kidnappers . The site of the crime was inspected at some point , but no relevant evidence was discovered .","According to the Government , criminal case file no . DATE into the abduction of PERSON was opened on DATE . The fourth applicant was questioned on DATE , CARDINAL DATE and DATE . She was also granted victim status . In DATE QUANTITY neighbours were questioned by the local police , but they were not aware of the identity of the perpetrators of the crime .","The Government further specified that on DATE criminal investigation file no . DATE had been opened into the abduction of PERSON . The sixth applicant was questioned on DATE and DATE . She was also granted victim status in the proceedings . CARDINAL of her neighbours and the former military commander of the LOC district , General PERSON , had also been questioned . An inspection of the site of the crime had taken place , but had produced no results .","Finally , they submitted that on DATE criminal case no . CARDINAL [ this should probably be no . DATE ] had been opened into the abduction of PERSON . The seventh and eighth applicants were questioned and granted victim status on DATE and DATE respectively . The investigation also questioned CARDINAL of their neighbours and relatives , the head of the ORG administration , General PERSON and a serviceman from the military commander 's office . An inspection of the site of the crime had produced no results .","No other witnesses to the crimes were identified by the investigation .","According to the Government , in DATE a number of information requests were forwarded to the relevant bodies concerning special operations carried out by the military forces . Despite these efforts , no information was obtained which would imply that the CARDINAL men had been detained by federal forces . Their names were not found in the registers of persons detained on suspicion of committing a criminal offence or arrested by way of administrative procedure .","The Government conceded that the CARDINAL investigations had been repeatedly suspended and reopened , on account of a failure to identify the culprits . They alleged that the victims had been informed of all the decisions made . The proceedings in criminal case no . CARDINAL had been reopened on DATE and , in criminal cases nos . DATE , DATE and DATE on DATE .","In their latest submissions of DATE the ORG informed the ORG that on DATE criminal investigation files nos . DATE CARDINAL , DATE and DATE had been joined under no . CARDINAL . The reason for the joinder was the establishment by the investigation of the fact that Mr PERSON , PERSON , PERSON and PERSON had been kidnapped by the same group of unidentified persons , who had travelled around in an ORG with hull number CARDINAL .","The Government also submitted that the investigation had been reopened on DATE . In DATE and DATE the investigators questioned CARDINAL female witnesses and the first , second and sixth applicants , who had victim status in the criminal proceedings . The ORG also stated that in DATE the investigation requested ORG and ORG to submit information from their archives about the participation of their personnel in the special operation in PERSON on DATE .","Among the documents submitted by the Government , in a decision of CARDINAL DATE the deputy prosecutor of GPE ordered that the proceedings be reopened and summarised the information available by DATE . According to that document , the investigation had established that the CARDINAL men had been kidnapped by a group of unidentified persons who had used an ORG with hull CARDINAL and CARDINAL other APCs .","On DATE the prosecutor issued written directions for the investigation . The prosecutor ordered that the bullets and cartridges left behind when the kidnappers had shot in the air to prevent relatives from interfering with the abduction be found , and that ballistic and other expert reports be carried out . He also ordered that information be collected about any special identification marks on the bodies of the missing men , so that a search could be organised through the register of unidentified corpses . He further directed information to be collected from the ORG central archives about the special operations carried out in GPE in DATE ; for it to be confirmed whether the ORG with hull CARDINAL had indeed been attached to the NORP military commander 's office and the crew of that vehicle to be questioned . The document referred to a witness statement by NORP who had served in DATE in the military commander 's office of LOC and who had been a crew member of ORG CARDINAL . According to the prosecutor , NORP testified that in DATE he and other members of the crew had been involved , using the ORG , in a special operation in NORP and had detained QUANTITY civilians . After their arrests he had returned to the military commander 's office . The QUANTITY detainees had been taken in CARDINAL other APCs towards the village of GPE . In view of this testimony , the prosecutor ordered that ORG , the military commander of LOC , be questioned and that all details relevant to the special operation of DATE in PERSON be obtained from him ( establishment of the units that had carried out the special operation , identification and questioning of the officers - in - charge ; finding the persons who had been in charge of the detainees and establishing where they had been taken ) . The document concluded by stating that if sufficient evidence of the involvement of military servicemen in the abduction was obtained , the investigation should be transferred to the military prosecutor 's office .","On DATE the district prosecutor 's office decided not to open a criminal investigation into an allegation by the sixth applicant that money and jewellery had been stolen from her home . The decision stated that , in her application of DATE , the sixth applicant had alleged that during the arrest of her son PERSON the perpetrators had also taken money and valuables . On DATE the sixth applicant was questioned and stated that the money and valuables had been found afterwards , but that she had forgotten to inform the investigation of this . On this basis the investigator ordered not to open criminal proceedings into the theft . The decision was countersigned by the sixth applicant .","On DATE the investigation was adjourned . On CARDINAL DATE it was again reopened with instructions to carry out the steps as listed in the prosecutor 's decision of DATE .","NORP Despite specific requests by the ORG on CARDINAL occasions , the Government did not submit copies of the documents to which they referred , providing only several copies of decisions to suspend and resume the investigation and to grant victim status , all issued after DATE , as well as copies of several notifications to the relatives of the adjournment and reopening of the proceedings . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants of criminal proceedings .","PERSON , the wife of PERSON , the fifth man detained on DATE in PERSON , applied to ORG GPE v. GPE , no . CARDINAL\/CARDINAL , DATE ) . Within these proceedings the ORG first denied that PERSON had been apprehended by law - enforcement or security bodies and suggested that he had been abducted by members of a terrorist organisation with a view to discrediting the federal forces .","Later both parties submitted to the ORG that on DATE the criminal investigation into the abduction of PERSON had been closed on the ground that no criminal offence had been committed . On DATE the applicant 's victim status in the criminal proceedings related to the kidnapping of her husband was withdrawn . She was informed at that stage that her husband had been detained by military servicemen and he had been subsequently released . The detention had been carried out in accordance with LAW and LAW . According to the Government , on DATE military servicemen , acting in accordance with section CARDINAL of LAW , had detained PERSON on suspicion of involvement in CARDINAL of the bandit groups active in the district . However , his involvement had not been established , and he had been transferred to the head of the PERSON administration ( who had subsequently died ) with a view to being returned home . Thus , no abduction had been committed and the actions of the servicemen who had detained Mr PERSON had not constituted any offence . Mr PERSON 's further absence from his place of residence was not connected to his detention by military servicemen , so the applicant had suffered no pecuniary or non - pecuniary damage . The Government did not submit any documents of substance from the investigation file concerning ORG abduction .","In its judgment the ORG found it established to the standard of proof \u201c beyond reasonable doubt \u201d that PERSON had been detained by the security forces on DATE . No records had been drawn up in respect of his detention , questioning or release . After that date he \u201c disappeared \u201d and his family had had no news of him . He could thus be presumed dead following unacknowledged detention and the responsibility for his death lay with the ORG .","In DATE the applicants informed the ORG CARDINAL incidents in respect of the second applicant . According to the applicants ' representatives , on DATE and DATE a large group of military personnel arrived at the first and second applicants ' house at CARDINAL FAC in GPE . On both occasions the servicemen arrived in TIME in several APCs , broke into the house without identifying themselves or giving any reasons for the intrusion , conducted an unsanctioned search and confiscated a number of items .","According to the applicants , on DATE the servicemen severely beat the second applicant , who is a pensioner and disabled ( he is blind in CARDINAL eye ) , on his head and torso , knocking him unconscious . They also threatened to shoot the first applicant , her daughter - in - law and DATE granddaughter . When leaving they took with them household items of some value and a copy of the application to the ORG , as well as a file containing correspondence with various authorities maintained by the first applicant in relation to her son 's disappearance .","The second applicant submitted that he had been severely physically traumatised by the beatings and had difficulty in walking . He submitted that he had visited CARDINAL hospitals where doctors performed X - rays and confirmed concussions to the ribs and spinal column , but refused to issue him with any medical documents , fearing reprisals . The first applicant also submitted that immediately after the incident she had applied to the prosecutor 's office , but they refused to accept her complaint or to conduct an investigation into it .","On DATE the masked servicemen who arrived at the ORG ' family house again searched the house , hit the second applicant in the back several times , dragged him into the garden and dropped him face down .","On DATE the ORG , in accordance with Rule CARDINAL of ORG , gave notice of the application and of the complaint about harassment to ORG . In their observations the Government stated that a prosecutor 's check had been conducted into these complaints . Within this check the first and the second applicants had been questioned but denied that they had submitted such complaints to ORG . They allegedly stated that on the said dates military servicemen had conducted an identity check in their house , but that no unlawful actions had been committed . On DATE the district prosecutor 's office refused to initiate criminal proceedings due to an absence of corpus delicti . The Government did not submit any documents relating to these proceedings .","In her submissions of DATE the fourth applicant alleged that a number of checks had been carried at her house in DATE by security servicemen , who failed to identify themselves or to present her with reasons for the searches .","For a summary of the relevant domestic law see Akhmadova and PERSON GPE , no . CARDINAL , \u00a7 CARDINAL , CARDINAL DATE ."],"violated_articles":["13","2","3","38","5"],"violated_paragraphs":["2-1","5-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102288","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF BOROTYUK v. UKRAINE","importance":4,"conclusion":"Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 6-3-c","judges":"Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and is currently serving a sentence in GPE . CARDINAL Prison in the NORP region .","The applicant had had a relationship with his neighbour , PERSON He received from her a duplicate of the key to her house , which he never returned . The relationship was terminated in DATE at the instigation of PERSON , whose husband had returned home from a long business trip .","During TIME DATE Mr M. , the husband of PERSON , was sleeping in his house , which was locked from the inside , while his wife was at work , and was attacked by a man wearing a mask . The victim 's son , DATE , who was sleeping in the same room , was woken by the noise and saw the intruder leaving the room with an object which looked like a stick . After the incident the entrance door to PERSON house remained locked . PERSON died without regaining consciousness .","On DATE , at TIME , the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death ( see also paragraph CARDINAL below ) .","On DATE the ORG ( \u201c the ORG \u201d ) remanded the applicant in custody in NORP no . CARDINAL ORG ( \u201c the GPE \u201d ) at the investigator 's request . The court based its decision on the seriousness of the charges against the applicant , as well as the fact that he had no family of his own and might therefore abscond .","On DATE ORG extended the applicant 's pre - trial detention to DATE . It justified this decision with the necessity to undertake a number of investigative measures , the seriousness of the charges against the applicant and the inherent risk of his absconding or hindering the investigation if at liberty . The court examined the applicant 's argument about his frail health and noted , referring to a medical report , that his condition was not incompatible with detention .","During both the pre - trial investigation and the judicial proceedings the applicant 's lawyer introduced numerous requests for the applicant 's release on bail , referring to his illness and specific medical needs which could not be accommodated by the PERSON administration and placed an excessive financial burden on his parents ( for more details see paragraphs CARDINAL - CARDINAL below ) . It was also noted in the requests that the applicant did not have a criminal record and had a permanent place of residence and elderly parents to care for . By way of bail the applicant 's father offered his minibus , whose value was estimated at CARDINAL NORP hryvnias ( ORG ) , which at the time was equal to QUANTITY ( ORG ) .","By rulings of CARDINAL and DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL and DATE , CARDINAL DATE and DATE , ORG rejected the aforementioned requests for the applicant 's release . The reasoning of all those CARDINAL rulings was identical and read as follows :","\u201c [ The applicant ] is accused of a serious crime punishable by imprisonment of DATE . Therefore , to prevent [ him ] from attempting to abscond or hindering the establishment of the truth , the preventive measure DATE detention DATE should remain unchanged . \u201d","CARDINAL of the rulings contained an additional phrase following the first sentence in the above quotation :","\u201c There are considerable discrepancies in the witnesses '","All the rulings , with the exception of that of DATE , also noted that the applicant was \u201c free to address requests to the [ GPE ] administration for medical assistance under the [ legislation on pre - trial detention ] . \u201d","On DATE ORG ( \u201c the ORG \u201d ) , in its ruling ordering an additional investigation in the case , noted that \u201c the preventive measure in respect of [ the applicant was to ] be unchanged \u2013 pre - trial detention \u201d ( see also paragraph CARDINAL below ) .","On DATE ORG , following a preparatory hearing prior to the applicant 's retrial ( see also paragraph CARDINAL below ) , rejected his request for release on bail or subject to an undertaking not to abscond . The court noted that the applicant was suspected of a dangerous crime and there was a risk of his absconding given his young age , single status and the fact that he had no children . The court examined the applicant 's argument about his health and noted , referring to some medical findings , that it was not incompatible with detention .","On DATE the police searched the applicant 's house and seized the key to PERSON house . The applicant was delivered to the police station , where he was questioned from TIME as a witness . He denied involvement in the crime being investigated .","Later that evening , at TIME , the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death . The arrest report listed all the possible reasons for an arrest contained in the report template , without giving any details . As noted there , the applicant refused to sign it , for unspecified reasons .","At an unspecified time on DATE the applicant wrote a statement of surrender to the authorities ( \u201c \u044f\u0432\u043a\u0430 \u0437 \u043f\u043e\u0432\u0438\u043d\u043d\u043e\u044e \u201d ) , in which he confessed to beating PERSON to death with a car axle ( kept in the applicant 's garage ) . The investigator accepted that statement , relying on LAW ( see paragraph DATE below ) .","On DATE according to the applicant , at TIME \u2013 the investigator delivered an \u201c Act of explanation to the suspect of his rights \u201d . It contained the applicant 's handwritten note as follows : \u201c For this questioning , I waive legal assistance . I will be testifying of my own will . \u201d The applicant also signed a formal legal assistance waiver \u201c for the period of questioning \u201d , and the investigator accepted it .","Later on DATE the applicant was questioned as a suspect and repeated his confession .","In TIME of DATE the applicant was questioned again , during which he drew the car axle in question and stated that he would be able to recognise it .","At some point during DATE on DATE the applicant 's parents signed a contract for legal representation by lawyer PERSON The lawyer tried to get access to the applicant , but was refused it on the pretext that he was being questioned as a witness and therefore his status did not warrant legal representation .","During TIME , TIME and TIME , a videotaped reconstruction of the crime was conducted , during which the applicant again repeated his confession .","On DATE the classification of the investigated crime was changed from infliction of grievous bodily harm causing the victim 's death to premeditated murder .","On DATE the applicant 's parents signed a contract with lawyer NORP for legal representation of the applicant , and on DATE they informed lawyer PERSON that her services were not needed any longer .","On DATE lawyer NORP requested to be involved in the investigations as the applicant 's legal representative . The investigator granted the request , and he received permission to have meetings with the applicant \u201c without any time restrictions \u201d .","On DATE , DATE , the investigator delivered another \u201c Act of the explanation to the suspect of his rights \u201d , in which the applicant noted that he wished to be represented by lawyer NORP","As soon as the applicant was legally represented he retracted all his earlier confession statements .","On DATE the pre - trial investigation was declared complete and the applicant was committed for trial .","On DATE the ORG found the applicant guilty of premeditated murder and sentenced him to DATE imprisonment . It dismissed his not - guilty plea made at the hearing as untruthful and found his guilt proved by the confessions he had made on DATE and repeated in the course of the reconstruction of the crime on DATE , as well as the corroborating material evidence ( the duplicate key and the car axle ) . The court noted that the applicant had had explained to him his right not to incriminate himself before he had confessed and that he had voluntarily waived his right to legal representation . Having heard lawyer PERSON , who stated that she had been refused a meeting with the applicant on DATE , the court found her allegation unsubstantiated , with a reference to \u201c a thorough investigation into the matter \u201d . The court also found no evidence that the applicant had admitted guilt under duress , given the fact that he had raised no complaints in that regard before any authorities .","The applicant appealed , alleging that the sole evidence of his guilt had been his confession extracted by the police under duress and in the absence of a lawyer . He submitted in particular that during the initial questioning and investigative activities he had been deprived of his medicines , and that he had not been receiving proper nutrition , water and sleep . Moreover , according to the applicant , he had been threatened with deprivation of legal assistance unless he confessed , and the police officers from time to time hit him on the back of the head with their hands or files . The applicant also insisted that he could not be regarded as having surrendered to the police under LAW ORG , as presented by the investigator , given the fact that prior to his statement in that regard he had already been arrested as a suspect . Furthermore , lawyer PERSON had not been allowed to see him on DATE , that is after his arrest , on the ground that he was being questioned as a witness , but not because he had waived his right to legal assistance .","On DATE ORG quashed the first - instance judgment and remitted the case for additional investigation , having allowed the applicant 's appeal in part . It found in particular that an additional investigation and a retrial were required in order to rectify certain shortcomings . ORG noted that the applicant 's conviction had largely been based on mere presumptions , namely that ORG had relied on the confession he had made during the pre - trial investigation in the absence of a lawyer ; this confession was not corroborated by any strong evidence against him . It further criticised the first - instance court for its failure to address the applicant 's complaint that he had had no access to a lawyer following his arrest as a suspect . Although it disregarded the lawyer 's statements made under oath as untruthful , ORG did not initiate criminal proceedings against her for perjury . According to ORG , the first - instance court had selectively admitted and interpreted evidence ( thus , according to the report of the first questioning of the victim 's son , he had replied in the negative to a quite suggestive question from the investigator as to whether the intruder looked like the applicant to him , while it was noted in the verdict that he had stated the contrary ) . Lastly , ORG pointed out some issues , which , although pertinent , remained uninvestigated : for example , that the victim was visited by unidentified persons on the eve of his murder , and the disorder in his house , which was not mentioned in the applicant 's confession .","Following the additional investigation , on DATE the applicant was again charged with premeditated murder .","On DATE the ORG delivered a ruling , refusing to institute criminal proceedings against the investigator who had allegedly refused the applicant 's lawyer permission to represent him on DATE . The prosecutor noted firstly that on DATE the applicant was questioned as a witness and therefore did not require legal representation , and secondly that even when he was recognised as a suspect he had voluntarily waived his right to legal assistance .","On DATE the prosecutor delivered another ruling refusing to institute criminal proceedings in respect of the applicant 's allegation of unlawful arrest and ill - treatment . The prosecutor referred in particular to the statements by the police officers involved , who denied any coercion . He also took into account the fact that the applicant had not raised any complaints about his health .","On DATE the applicant was indicted as charged , and on the following day the case was sent to the court for trial .","On DATE ORG held a preparatory hearing .","On DATE it issued a new judgment which in its operative part , was identical to that of CARDINAL DATE .","NORP The court examined the applicant 's complaint that he had had no access to a lawyer and dismissed it as unsubstantiated : on one hand , the court referred to the investigator 's statements , according to which the lawyer had not submitted any documents to him authorising her to represent the applicant ; and , on the other hand , it noted that the contract for legal representation submitted to it by the defence had indicated the applicant ( but not his parents ) as a party , while he was in detention at that time and could not have signed it . Furthermore , it was mentioned in the judgment that the prosecutor had examined the applicant 's allegation that the investigator had refused to allow the lawyer to see him , and refused to institute criminal proceedings against the investigator for lack of corpus delicti in his actions , which the applicant had failed to challenge . The court also noted that on DATE the applicant had waived his right to legal assistance . It dismissed his allegation of duress , because the applicant had not complained to anybody about it apart from his father . In any event , the prosecuting authorities had already examined that allegation and rejected it , and the applicant had not appealed against that decision ( see paragraph CARDINAL above ) . The court therefore concluded that the applicant \u201c had not been refused access to a lawyer \u201d .","The judgment further referred to the statements of the victim 's son , who had not recognised the murderer , although he noted that he was the same height as the applicant . The court further noted that although several witnesses had seen CARDINAL unidentified persons looking for Mr M. on the eve of his murder , this fact did not negate the finding of the applicant 's guilt . The court made a similar observation concerning the disorder in the victim 's house not mentioned in the applicant 's confession . It also relied on the material evidence obtained on the basis of the applicant 's confession , namely the car axle found in his garage , having explained the lack of any traces of the crime on it with the fact that the applicant had wrapped it in cloth and plastic , which he had later burnt .","The applicant appealed against the judgment as based on unlawfully obtained confession statements and lacking a solid evidential basis . He reiterated his earlier grievances , namely that his right to defence during the early stages of the investigation had been restricted , and argued that ORG had failed to address a number of specific issues raised in ORG of Appeal ruling of CARDINAL DATE .","On DATE ORG upheld the applicant 's conviction , finding that the first - instance court had rightly relied on his confession statements as they had been given in compliance with the legislation on criminal procedure and were corroborated by other evidence .","On DATE ORG rejected the applicant 's request for leave to appeal in cassation as unsubstantiated .","The applicant has been suffering for DATE from diabetes insipidus ( \u043d\u0435\u0446\u0443\u043a\u0440\u043e\u0432\u0438\u0439 \u0434\u0456\u0430\u0431\u0435\u0442 ) . In DATE he was recognised as falling into the third category of disability ( the mildest ) on account of that condition . Apart from the diagnosis and the aforementioned fact about his disability , the applicant did not provide the ORG with any details about his medical condition .","According to a note issued on DATE by the local clinic at the request of the applicant 's lawyer , the applicant had been being monitored by an endocrinologist , who had prescribed him certain antidiuretic hormones , which cost about ORG CARDINAL a package . The clinic provided the applicant with CARDINAL package a month free of charge , while the required intake was CARDINAL packages .","On DATE the applicant 's lawyer wrote a letter to the PERSON administration in which he referred to the applicant 's medical needs as outlined above and enquired whether the GPE was able to provide him with the medication he required . The reply was that the GPE was providing the applicant with some symptomatic treatment . As to the \u201c expensive medications of narrow specification \u201d , such as the antidiuretic hormone referred to , the administration was ready to accept those from the applicant 's relatives . It was also noted in the letter that for the time being the applicant had an adequate supply of that medication .","On DATE the applicant authorised his father to represent him in the proceedings before the ORG . The prison administration countersigned the authority form .","DATE . On DATE the ORG received a letter from the applicant 's father dated DATE , in which he complained in particular that his son had been deprived of legal assistance for DATE after his arrest and that a lawyer had been admitted to him only after he had made confession statements while he was in a state of physical and emotional exhaustion .","Articles DATE and CARDINAL of the LAW concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL , \u00a7 CARDINAL ) .","The Criminal Code envisages imprisonment of DATE for deliberate murder without aggravating circumstances ( Article CARDINAL \u00a7 CARDINAL ) and DATE for deliberate infliction of grievous bodily injuries causing death ( LAW ) .","The relevant provisions of LAW ( \u201c the ORG \u201d ) concerning preventive measures pending trial are quoted in the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 DATE , DATE .","Article CARDINAL - CARDINAL of the ORG , as well as the relevant extracts from Resolution No . CARDINAL of ORG of DATE \u201c on the practice of applying bail as a preventive measure \u201d , can be found in the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE .","As regards admissions of guilt , LAW ORG requires verification of a suspect 's statements . His or her admission of guilt may provide a basis for the accusation only if corroborated by the totality of the evidence . LAW ORG defines a statement of surrender to the authorities as follows : \u201c a personal voluntary written or verbal statement made by a person , before the institution of criminal proceedings against him or her , to an enquiry authority , a police officer , an investigator , a prosecutor , a judge or a court , about a crime committed or planned for by him or her \u201d . Where criminal proceedings have already been instituted , such a statement must be made before formal charges are brought against the person ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109815","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2012,"docname":"CASE OF AHRENS v. GERMANY","importance":2,"conclusion":"Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger","text":["The applicant was born in DATE and lives in GPE .","From GPE to DATE the applicant had a relationship with PERSON In DATE PERSON started a relationship with PERSON In DATE PERSON and PERSON moved into a joint household . In DATE and DATE the applicant had intimate contact with PERSON In DATE PERSON informed the applicant that she was pregnant .","On DATE Mr M. , with the consent of PERSON , acknowledged paternity of PERSON future child . On DATE PERSON gave birth to a daughter , PERSON and PERSON jointly exercise parental authority and are bringing up the child together .","On DATE the applicant lodged an action to challenge Mr M. \u2019s paternity , submitting a statutory declaration that he had had sexual intercourse with the child \u2019s mother during the period of conception . Mr M. submitted in reply that he lived with the child in a social - familial relationship and that he assumed full parental responsibility for the child , even if he was not her biological father .","On DATE the GPE - Kreuzberg District Court ( ORG ) scheduled a hearing for DATE . On DATE ORG cancelled the hearing , as a guardian ad litem to represent the child \u2019s interests had to be appointed . On DATE ORG appointed a guardian ad litem . On DATE the guardian submitted that a loving father - child relationship existed between Mr M. and NORP and that the applicant \u2019s action ran counter to the child \u2019s best interests .","On DATE , following a reminder by the applicant \u2019s counsel , ORG scheduled a hearing for DATE . On DATE ORG , following PERSON \u2019s request , postponed the hearing to DATE .","On DATE ORG , having heard the applicant , Mr M. and PERSON , ordered an expert opinion on the question whether PERSON was the child \u2019s biological father . On DATE ORG requested the expert to submit information on the state of the proceedings .","On DATE the expert informed ORG that PERSON and PERSON had postponed several appointments for the taking of blood samples on medical grounds . Mr PERSON had his blood sample taken on DATE . On DATE the expert informed the court that he had received the blood samples of PERSON and the child . On DATE the expert submitted his report which concluded that Mr M. was not the child \u2019s biological father .","On DATE , following a reminder by the applicant \u2019s counsel , ORG scheduled a further hearing for DATE . On DATE ORG ordered an expert opinion by the same medical expert as to the applicant \u2019s alleged paternity .","On DATE the expert submitted his report which concluded that it had been proved to a probability of PERCENT that the applicant was the child \u2019s biological father .","On DATE ORG scheduled a hearing for DATE .","On DATE ORG delivered a judgment establishing that Mr M. was not the child \u2019s father and that the applicant was the child \u2019s father . ORG found the applicant \u2019s action admissible , as he had submitted a statutory declaration that he had had sexual intercourse with the child \u2019s mother during the period of conception . The action was well - founded , as it had been proved by expert opinion that the applicant was the child \u2019s biological father . ORG considered that the applicant had not been precluded from challenging paternity under LAW ( see relevant domestic law below ) , as there had been no social and family relationship between Mr M. and the child at the time of the last court hearing . It could not be assumed that Mr M. bore actual responsibility for the child . This would have required the legal father and the child to have lived together for a longer period of time , which , according to ORG , necessitated a minimum period of DATE . Taking into account the constitutional right of the biological father under LAW of LAW , it was necessary that the factual relationship between the legal father and the child enjoyed a certain stability . This stability could only be assumed after DATE , which had not passed in the instant case . Under these circumstances , it was not relevant that the applicant actually took care of the child together with the child \u2019s mother .","On DATE ORG ( GPE ) quashed ORG judgment and rejected the applicant \u2019s action . The court noted that it was undisputed between the parties that Mr M. had lived with the child and her mother since the child \u2019s birth and that he had continued to live with them after it had been established by an expert that he was not the child \u2019s biological father .","According to ORG , ORG had failed to recognise that the applicant did not have the right to challenge paternity because of the existence of a social and family relationship between Mr M. and the child . ORG considered that such a relationship had not only existed at the time it decided on the appeal , but already a long time before , as Mr M. had lived together with the child and her mother in a joint household since the child \u2019s birth . A young child could not possibly live together with another person for a period of time longer than his or her own lifetime . The legislature had not strictly defined which period of time would amount to a \u201c longer period of time \u201d , but had left this assessment to the courts adjudicating each individual case .","The period of time which was necessary to establish a social and family relationship was not absolute , but had to be assessed with regard to the circumstances of each individual case and , in particular , the child \u2019s age . There was no doubt that a child , during DATE of his or her life , developed a social and family relationship with the persons taking care of him or her on a DATE basis . During DATE of his or her life , a child was in particular need of secure family relationships , which allowed him or her to develop further social contacts . A child \u2019s interest in learning about its true descent could only become relevant at a more advanced age . According to the intentions of the legislature , who were guided by ORG case - law , external disturbances should be avoided in the child \u2019s best interests and in the interest of the already existing family relationship . The constitutional rights of the biological father should not prevail over the equally protected rights of the legal father , if and as long as the latter assumed parental responsibility within the meaning of social parentage . Against this background , even a period of DATE which elapsed between a child \u2019s birth and the bringing of an action to challenge paternity could be considered as a \u201c longer period \u201d within this specific context .","ORG did not find it necessary to decide whether the period of time which had elapsed between the child \u2019s birth and the lodging of the applicant \u2019s action would have been sufficient to establish a social and family relationship . According to the case - law of ORG , in cases in which the child had lived since birth without interruption together with his or her legal parents , the existence of a social - family relationship had to be assumed if the cohabitation persisted and the judge was convinced that the legal father assumed actual parental responsibility in a way which appeared to be long - lasting . It was not decisive whether the social and family relationship already existed when the action was lodged , but only whether there was a social and family relationship at the time of the last court hearing . The applicant had failed to point to any circumstances which could call into question the existence of such a relationship in the instant case . Conversely , the fact that the relationship between the legal parents had endured the crisis which had been caused by the mother \u2019s breach of trust indicated that the relationship was particularly stable . ORG did not allow an appeal on points of law .","On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant \u2019s constitutional complaint for adjudication . This decision was served on the applicant \u2019s counsel on DATE .","Under LAW , everyone is equal before the law ( \u00a7 CARDINAL ) ; men and women have equal rights ( \u00a7 CARDINAL ) .","Article CARDINAL of LAW , in so far as relevant , provides :","\u201c ( CARDINAL ) Marriage and the family shall enjoy the special protection of the ORG .","( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The ORG shall watch over them in the performance of this duty . \u201d","According to LAW , a child \u2019s father is either the man who on the date of the child \u2019s birth was married to the child \u2019s mother ( no . CARDINAL ) , or the man who acknowledged paternity ( no . CARDINAL ) , or whose paternity is judicially established under LAW ( no . CARDINAL ) . An acknowledgement of paternity is not valid as long as the paternity of another man exists ( LAW ) . Paternity can only be validly acknowledged with the mother \u2019s consent ( LAW ) .","Paternity may be challenged within a time - limit of DATE . The period commences on the date on which the entitled person learns of the circumstances that militate against the established paternity ; the existence of a social and family relationship does not prevent the period from running ( LAW ) . Under LAW , entitlement to challenge paternity lies with the man whose paternity exists LAW nos . CARDINAL and CARDINAL , with the mother and with the child , and also with the man who makes a statutory declaration that he had sexual intercourse with the child \u2019s mother during the period of conception . However , pursuant to LAW , the biological father has a right to challenge the paternity of the man who is the child \u2019s legal father under LAW . CARDINAL or CARDINAL only if there is no social and family relationship between the legal father and the child . A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time . There is , as a rule , an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time ( Article CARDINAL \u00a7 CARDINAL ) .","Under LAW of LAW as in force since DATE , the legal father , the mother and the child can request the examination of paternity by genetic testing . The outcome of these proceedings does not change the legal status of the persons involved . However , no such right is granted to a third person alleging that he is the biological father .","Research undertaken by ORG in respect of PERCENT ORG GPE shows that in CARDINAL of those GPE acknowledgment of the paternity of a child born out of wedlock requires the mother \u2019s consent . In GPE ( namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , the presumed biological father is entitled to challenge the legal paternity of a third party established by acknowledgment . This right may be subject to certain time - limits . In GPE this remains the position where the legal father has lived with the child in a social and family relationship . In GPE and GPE , the biological father may not challenge paternity if the child has lived in a social and family relationship with the legally acknowledged father for a period of CARDINAL or DATE , respectively ( la possession d\u2019\u00e9tat conforme au titre ) .","By contrast , in CARDINAL GPE ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) the biological father does not have standing to challenge the paternity of the legal father established by acknowledgement . In those CARDINAL jurisdictions , the courts are not entitled to judicially consider ( on the grounds of the best interests of the child or otherwise ) whether the biological father should be allowed to challenge paternity ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-112138","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2012,"docname":"HEATHER MOOR & EDGECOMB LTD v. THE UNITED KINGDOM (NO. 2)","importance":4,"conclusion":"Inadmissible","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["NORP The applicant , ORG ( \u201c NORP \u201d ) , was a company based in GPE in GPE . According to information provided by the Government , the applicant was dissolved on DATE . The application was lodged on CARDINAL DATE by PERSON NORP GPE , a director of the applicant company . The applicant was advised by PERSON A. ORG and Ms. PERSON , barristers practising in GPE .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant was contacted by a ORG pilot , NORP , who was approaching the retirement age of DATE and was seeking advice regarding his pension fund . NORP had already been advised by a financial services company linked to the ORG association against leaving his employer \u2019s occupational pension scheme , since this would entail \u201c enormous risk \u201d . There were several exchanges of correspondence between NORP and PERSON in DATE as well as a long meeting at the company \u2019s LOC . NORP indicated he was prepared to accept a \u201c medium \u201d degree of investment risk , and signed a checklist prepared by PERSON to indicate that he and his wife had been made fully aware of the risks associated with the income drawdown scheme being proposed . PERSON provided figures showing that by transferring his pension funds , NORP could obtain an appreciably higher DATE income . Also , the benefits payable in the event of NORP \u2019s death before DATE would be much greater . For its assumed growth projections , ORG used a central projection rate of PERCENT , rather than PERCENT indicated by the regulator DATE . NORP acted on ORG \u2019s advice and transferred his pension fund .","By DATE , NORP had become dissatisfied with his investments and , taking new advice , transferred his funds elsewhere . In DATE he made a formal complaint to ORG that he had lost PERCENT ( \u00a3 MONEY ) of the amount originally transferred . He complained as well that the PERCENT assumed rate of growth had been presented to him as a \u201c worst - case scenario \u201d , and that ORG had taken no action in response to the concerns he had expressed at the time about stock market movements . PERSON rejected the complaint , leading NORP to file a complaint with ORG ) in DATE .","The procedure followed by the ORG was an entirely written one , with submissions from NORP and from PERSON . The latter \u2019s requests for an oral hearing and for the opportunity to cross - examine NORP were refused . The ORG considered this to be unnecessary in the circumstances , and observed that the complaints process was an inquisitorial one , not an adversarial one .","NORP The Ombudsman gave a provisional decision on DATE . He considered that in view of the relative security provided by NORP \u2019s occupational pension scheme , PERSON should have demonstrated that transfer would be clearly advantageous . He observed that responsibility for advice rested completely with the adviser and was not diminished by recommendations or warnings given by other firms . The causal link was established here since PERSON had recommended transfer and NORP had done so . Although the firm argued that there had been a respectable school of thought among financial advisers that would have agreed with their advice to NORP , the witness statement they relied on indicated the contrary . The ORG considered that to be consistent with good industry practice , the firm should have assumed a growth rate of PERCENT . There was , however , no evidence in the file that the consequences of a lower growth rate had been explained to NORP Instead , PERSON had made repeated references to higher growth rates achieved in DATE . He also took the view that PERSON had not explained the investment risk in terms that NORP would have understood properly . He concluded that the overall risks associated with the income drawdown arrangement were greater than was advisable for NORP in his circumstances , and that had this been given sufficient prominence in the firm \u2019s advice NORP would not have transferred his pension funds . The most suitable advice would have been to remain in his employer \u2019s pension scheme .","HME made detailed submissions on these findings . Its arguments were considered and dismissed in the ORG \u2019s final decision of CARDINAL DATE .","The firm argued first that it had received legal advice that NORP \u2019s","HME maintained there was no causal link between its advice and NORP \u2019s decision to transfer his pension fund . The ORG reiterated the position taken in the provisional decision .","Regarding R. \u2019s attitude to risk , the ORG held that NORP \u2019s pension fund , which constituted a very significant part of his overall wealth , should not have been placed at risk , there being no need to do so in the particular circumstances . The fact that NORP had signed the checklist did not make the transfer more suitable , nor did it negate PERSON \u2019s duty to explain very clearly the risks involved .","NORP The Ombudsman reiterated that PERSON had not acted consistently with good industry practice when it used the rate of PERCENT for its projections . While this did not necessarily make the firm \u2019s advice more or less suitable , it incorrectly made the option of transferring look more attractive than it would otherwise have been . Although NORP was concerned to make adequate provision for his son in the eventuality of the untimely death of himself and his wife , the ORG was not satisfied that this should have been given greater weight than the security of their retirement income . Other arrangements could have been made to ensure their son \u2019s welfare , such as life insurance . In light of these considerations , he concluded that the appropriate advice should have been not to transfer his pension fund . He directed PERSON to arrange for a loss assessment to be carried out . NORP accepted the decision , making it binding on PERSON . In DATE the firm paid out the statutory maximum amount ( \u00a3 MONEY ) to NORP","HME applied to ORG for judicial review of the ORG \u2019s decision . The application was rejected on the papers on DATE . The firm renewed its application , which was heard and dismissed by Judge PERSON on DATE . CARDINAL grounds were relied on \u2013 the ORG \u2019s refusal to hold a hearing , and a lack of independence and impartiality on the part of the ORG . On the first ground , the judge noted that comprehensive written evidence of the parties\u2019 dealings had been available to the ORG . It would have been pointless to cross - examine NORP on what action he would have taken had PERSON advised against transfer , it being probable that he would not have left his employer \u2019s scheme . The procedure followed by the ORG had been a fair one , allowing ORG to put its case fully in writing . A hearing would not have added anything . Although the firm alleged that the ORG \u2019s decision contained errors , judicial review was essentially concerned with procedural fairness . Moreover , it did not appear that any facts had been plainly ignored .","On the second ground , the judge rejected PERSON \u2019s arguments about the supervisory role of ORG ( ORG ) in relation to the ORG , and its reference to evidence in another case in which the ORG was found by an independent assessor to have effectively solicited complaints against companies . The judge was satisfied that the ORG scheme involved an independent and impartial tribunal .","HME applied for leave to appeal . This was refused on the papers by PERSON , following which the firm renewed its application , which was dealt with orally and dismissed by PERSON on DATE . He noted that Judge PERSON had found both grounds to be without merit and agreed with that view . On the issue of an oral hearing , he stated that whether the facts were or were not as alleged by the firm was beside the point . Rather the issue was whether the refusal of a hearing before the ORG was procedurally unfair or unreasonable . He did not consider it so , or that the will of ORG had been subverted in this respect . Regarding the second ground , he found it to be without substance .","The relevant provisions of domestic law , as they stood at the material time , are set out in the ORG \u2019s decision in ORG v. GPE DATE . ) , no CARDINAL\/CARDINAL , DATE .","The following provision of the ORG dispute resolution rules ( ORG ) , as formulated and numbered at the material time , is also relevant to the present case :","\u201c CARDINAL R The ORG must maintain a register of each money award and direction made . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77961","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2006,"docname":"ASCI v. AUSTRIA","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr NORP GPE , a lawyer practising in GPE . The respondent Government were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","The facts of the case may be summarised as follows .","On DATE the police stopped the applicant , who was driving his car , on account of a minor traffic offence . There followed a violent dispute between the applicant and the police officers , PERSON and PERSON The applicant snatched his car documents from the former and bruised the latter with his car keys .","On DATE ORG ) issued a penal order ( PERSON ) in which it sentenced the applicant to a fine of CARDINAL NORP schillings ( ( ORG ) DATE ( EUR ) ) under section CARDINAL of LAW ( Sicherheitspolizeigesetz ) for aggressive behaviour towards a public officer ( Organ \u00f6ffentlicher Aufsicht ) . It noted that the applicant had shouted and tried to snatch his driving licence from a police officer . It ordered the applicant to pay CARDINAL further fines of ORG CARDINAL ( approximately EUR DATE ) for an offence under LAW ( Stra\u00dfenverkehrsordnung ) and for having caused undue noise disturbance .","The applicant did not appeal against that decision .","On DATE ORG ( PERSON ) , sitting with a single judge , convicted the applicant of having attempted to resist the exercise of official authority ( MONEY die ORG ) , under LAW of LAW ) , and of having caused bodily harm to police officer PERSON while she was on duty , which was to be qualified as grievous bodily harm ( schwere GPE ) in accordance with LAW . Pursuant to LAW , which provides that a person who has committed CARDINAL offence should receive only a single penalty , it sentenced him to CARDINAL months\u2019 imprisonment , suspended on probation , under LAW . In the operative part ( PERSON ) of its judgment , the court referred to the fact that on DATE the applicant had started fighting with police officer PERSON , in the process bruising her with his car keys , causing skin abrasions on her forearm and kicking her legs .","In the part of the judgment headed \u201c Reasons for the decision \u201d ( Entscheidungsgr\u00fcnde ) , the court observed that the applicant had started to shout and , on being ordered to hand over the keys to the car , had snatched the car documents from police officer PERSON had then started the fight with police officer PERSON","The court based its findings as far as the course of the events was concerned on the statements of the police officers concerned . In respect of the injury inflicted by the applicant , it relied on the statement by the officer concerned and an official medical expert opinion .","The applicant appealed against his conviction and sentence . He argued , inter alia , that ORG had based its penal order against him on the same set of facts . The subsequent court proceedings and his conviction were therefore in breach of the non bis in idem principle . He also requested the preparation of a further expert opinion in order to prove that the police officer concerned had not suffered any injuries which were relevant for the purposes of LAW .","On DATE ORG ( Oberlandesgericht ) , having held a hearing , dismissed the applicant \u2019s appeal . Giving extensive reasons and referring to the ORG \u2019s case - law in GPE v. GPE ( DATE , Series A no . CARDINAL ) and PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , it found that there had been no breach of the applicant \u2019s rights under LAW . It noted in this regard that ORG had sentenced the applicant for his aggressive conduct in seeking to impede the performance of an official act by snatching the driving licence from police officer PERSON and shouting , whereas the subject of the criminal proceedings had been the violent behaviour by which the applicant had subsequently tried to resist police officer PERSON and had injured her . ORG noted that these were different acts motivated by different intentions . In any event , the applicant \u2019s criminal conviction by ORG did not do justice to all of the unlawful aspects ( GPE ) of his conduct .","ORG lastly noted that in the light of the evidence before it , namely the official medical opinion , there was no need for a further medical opinion . There was no reason to doubt the police ORG version of the events , and the assessment of the facts did not require special knowledge .","The judgment was served on the applicant \u2019s counsel on DATE .","By section CARDINAL(CARDINAL ) of LAW ( Sicherheitspolizeigesetz ) , a person who , notwithstanding a previous warning , behaves aggressively towards a public officer on duty and thereby obstructs the performance of an official act commits an administrative offence and is punishable by a fine of up to ORG CARDINAL,CARDINAL ( approximately FAC ) ( aggressives PERSON gegen\u00fcber PERSON ) .","Section CARDINAL of LAW provides that an administrative offence under sections DATE is not to be prosecuted when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts .","Under LAW ) , it is an offence , punishable by imprisonment of DATE , to resist forcibly or using dangerous threats a public officer in the performance of an official act ( Widerstand gegen die PERSON ) .","Article CARDINAL of the Criminal Code applies where a person causes bodily harm and provides for DATE imprisonment or CARDINAL DATE - fines .","By LAW , bodily harm caused to a public officer while on duty qualifies as grievous bodily harm ( schwere GPE ) punishable by up to CARDINAL years\u2019 imprisonment .","LAW provides that where a person has committed CARDINAL offence , he or she should be punished by a single penalty , on the basis of whichever offence provides for the more severe punishment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79407","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2007,"docname":"PROKOPYSZYN v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . The applicant informed the ORG that on DATE he had changed his surname to \u201c PERSON \u201d and he submitted an official document to that effect . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was born in DATE and lives in PERSON .","On DATE the applicant was suspected of having committed aggravated burglary and fraud as a result of which a third person \u2019s property had been disposed of to the detriment of its owner .","On DATE the applicant was arrested and placed in police custody .","On DATE ORG ordered that the applicant be detained . The court based its detention order on a reasonable suspicion that the applicant had committed the offences , the severity of the likely penalty , the risk of the applicant \u2019s \u201c avoiding the administration of justice \u201d and his relapse into crime .","Subsequent decisions extending the applicant \u2019s pre - trial detention were taken by ORG on DATE , DATE , DATE , an unknown subsequent date , CARDINAL DATE , DATE , CARDINAL DATE and DATE and on an unknown subsequent date .","The court referred to the need to conduct further investigations , the reasonable suspicion that the applicant had committed the offences , the risk of the applicant \u2019s obstructing the proper course of the proceedings ( especially , in view of the fact that he had previously gone into hiding ) .","The applicant appealed against the decisions extending his detention on several occasions . All of his appeals were dismissed .","On many occasions the applicant requested that his detention pending trial be lifted . On each occasion his requests were dismissed . The decisions to that effect were given by ORG ( a decision of DATE ) and ORG ( decisions of DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE and DATE ) . These decisions relied on the fact that the reasons for which the applicant had been initially detained were still valid . Neither the applicant \u2019s family situation nor his state of health had been found as such to justify lifting his pre - trial detention .","The applicant appealed unsuccessfully against some of the decisions dismissing his requests for release .","On DATE a bill of indictment was lodged with ORG . The applicant was charged with aggravated burglary and fraud as a result of which a third party \u2019s property had been disposed of to the detriment of its owner .","Hearings were held on : DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL DATE .","From DATE to DATE and from DATE to CARDINAL October CARDINAL the applicant was serving prison sentences in respect of his other convictions . Therefore , for DATE and DATE of the period of his pre - trial detention , which lasted DATE and DATE , the applicant was serving his prison sentences .","On DATE the ORG found the applicant guilty of the offences he had been charged with and sentenced him to CARDINAL half years\u2019 imprisonment . The applicant appealed .","On DATE ORG upheld the judgment . As the applicant did not lodge a cassation appeal , the judgment became final .","The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are stated in the ORG \u2019s judgments in cases of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE and PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-113111","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2012,"docname":"SAHIN v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant and her husband had CARDINAL children : a daughter D , born in DATE , and a son S , born in DATE . Following allegations against the applicant \u2019s husband of violence against the children and sexual abuse of D , ORG ( ORG ) removed both children from their home and placed them in a children \u2019s home as a provisional measure on DATE , having found the children to be in imminent danger as required by LAW .","In compliance with the time - limit set out in LAW , ORG thereafter , on DATE , applied to ORG ( GPE ) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children \u2019s home approved .","The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority \u2019s application for custody .","ORG promptly heard the applicant and her husband , the children \u2019s teachers , other witnesses and commissioned an expert opinion . Following its investigation , on DATE the Innsbruck ORG dismissed ORG custody application , but ordered the parents to attend DATE psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association .","The children were returned to their parents on DATE .","ORG appealed against ORG decision , but on DATE the Innsbruck ORG ( GPE ) dismissed the appeal .","In addition to the above civil proceedings , the applicant applied on DATE to ORG ( Unabh\u00e4ngiger Verwaltungssenat Tirol ) and contested the measures taken by ORG . She requested it to rule that ORG had violated her rights by removing the children on DATE , complaining that the children had been taken away without the applicant having first given evidence , and arguing that until the court had issued a decision their placement in a children \u2019s home had been without any legal basis . She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate .","On DATE ORG rejected the application . It found that the measures were based on the provisions of LAW and not on the administrative law . Thus , only the civil courts were competent to decide on the lawfulness of the measure .","The applicant lodged a complaint with ORG against that decision under LAW .","On DATE ORG dismissed the complaint confirming its case - law whereby a provisional measure implemented by ORG pursuant to LAW was a measure under civil law . Accordingly , the administrative authorities had no jurisdiction to decide on the applicant \u2019s application .","The Constitutional Court \u2019s judgment was served on the applicant \u2019s counsel on DATE .","Under LAW of LAW ( ORG ) , the competent ORG must apply for court orders regarding custody measures which are necessary in order to ensure a child \u2019s well - being . Where a child is in imminent danger , ORG must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision . Such provisional arrangements have to be notified to the competent ORG immediately , at the latest within DATE .","Article CARDINAL of LAW ( Bundesverfassungsgesetz ) provides that ORG decides on conflicts of jurisdiction between the courts and the administrative authorities .","Under LAW , an application can be lodged with ORG alleging a violation of a constitutional right as the result of a decision of the administrative authorities , including ORG .","Pursuant to section CARDINAL of LAW ( Amtshaftungsgesetz ) , the Federation , the L\u00e4nder , districts , municipalities , other bodies of public law and the institutions of social insurance ( hereinafter named \u201c legal entities \u201d ; PERSON ) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law . Sections CARDINAL and CARDINAL of LAW provide that , as a first step , an injured party shall demand a written statement of the legal entity , against which a claim of damages is to be raised , indicating whether the legal entity at issue accepts or rejects the claim for damages . Such a statement shall be rendered within DATE . After expiration of the delay of DATE and in the event the legal entity does not accept the claim ( in full ) , the injured party can lodge an action for damages with the competent ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100197","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2010,"docname":"CASE OF GINEITIENE v. LITHUANIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 14+8;Pecuniary and non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE . In DATE the applicant married ORG .","In DATE , the applicant became involved in the activities of ORG , a NORP branch of a new religious movement called PERSON .","In DATE , she divorced her husband . The permanent place of residence of the applicant 's CARDINAL daughters , ORG , born in DATE and DATE respectively , was not determined and they stayed with the applicant and her former husband in GPE .","In DATE , the applicant 's former husband brought an action requesting that his home be fixed as the place of residence of his daughters . He alleged , inter alia , that the applicant 's involvement in the PERSON religious movement could have a negative influence on the children .","On DATE PERSON District Child Rights Protection Agency , having visited the father 's place of residence , concluded that the living conditions were suitable and , taking into consideration the wishes of ORG and ORG , suggested fixing their place of residence with the father . On DATE the same ORG proposed to ORG of GPE that it hear the views of the children .","By a ruling of CARDINAL DATE , ORG decided that , pending the proceedings , ORG should reside with the applicant , and ORG should stay with her father .","On DATE the applicant and ORG moved to GPE , settling in an apartment situated in the same building as the GPE headquarters . The applicant was allowed to use that apartment free of charge . ORG stayed with her father .","On DATE the employees of ORG ( PERSON teisi\u0173 apsaugos tarnyba ) visited the applicant 's residence . They noted the applicant 's explanation that she had CARDINAL rooms for her use , CARDINAL of them being reserved for ORG . When the applicant was absent , a nanny would take care of her . The living conditions seemed suitable for a child . However , during the interview ORG explained that she wanted to stay with her father , who took better care of her and did not leave her alone . She elaborated that her mother left her alone during DATE and that she often felt scared . The ORG then suggested fixing ORG 's place of residence with her father .","On DATE the employees of ORG , having visited the applicant 's place of residence in GPE , concluded that it was unsafe for ORG to live there and that the applicant was not caring enough about ORG 's upbringing and education . They noted that the applicant 's living space consisted of CARDINAL room and that the kitchen was shared with other residents of the house . ORG lived in that room with her mother , both of them sleeping in the same bed . The other room , which was supposed to be part of the applicant 's living space , was apparently also used by other persons . At the time of the interview with ORG , CARDINAL teenage boys entered the room without asking for permission . According to ORG , her mother did not take care of her ; she did not have any friends and , during DATE , was left alone . The girl had to cook for herself ; she was not allowed to go to the adjoining yard and the building next to it , where her mother was meditating . The nanny would only come to take care of ORG when the applicant left for DATE . ORG expressed her wish to live in GPE with her father and sister ORG . The ORG 's workers also interviewed ORG 's kindergarten teachers . According to them , ORG was often sad about not seeing her sister and father . ORG would also be picked up from the kindergarten by DATE girl , but at the time of the interview she was going home on her own . The ORG 's workers suggested to the applicant that she find another place to live where ORG would feel safer . However , the applicant refused because she did not have to pay rent for the current flat , and it was close to her meditation centre .","On DATE the employees of ORG again interviewed ORG , who repeated her wish to live with her father . The ORG also noted that ORG had stressed that she had made the same statement before the court of first instance and to the psychologists .","From DATE to DATE , ORG was examined by a psychologist . Again , she expressed her wish to stay with her father and older sister .","On DATE the ORG granted the action in part , ruling that ORG should live with the applicant 's former husband , and ORG should live with the applicant . The court noted that both parents were well educated and had sufficient salaries to provide for their daughters . In the course of the proceedings , both girls had been heard by the court as well as by a psychologist . They had both expressed their wish to stay with their father . However , the court agreed with CARDINAL of the experts that ORG ( then DATE ) was not mature enough to take a reasonable decision about her parental preferences . With respect to the applicant 's affiliation to the meditation centre , the court noted :","\u201c ORG has refused to register [ GPE ] as a religious community , suggesting that it should be registered as [ a non governmental organisation ] . There is no indication in the case file that the meditation centre has a negative influence on children or that it propagates certain intolerable views ; nor is there any evidence that the [ applicant 's ] children are involved in the activities of the centre .","The court concludes that [ the applicant 's ] active participation in the activities of the meditation centre does not have any negative impact on her children . In accordance with LAW , everyone is free to choose a religion or belief and ... to profess his religion , to perform religious practices , and to practise and teach his beliefs . \u201d","On DATE the ORG amended the decision , ruling that both daughters should live with their father . The court considered that too little weight had been afforded by the lower court to the express wish of ORG to live with her father . According to the appellate court , this had not complied with LAW on the Rights of the LAW or the relevant provisions of national law , which obliged the court to take into account a child 's wishes irrespective of its age . The appellate court had regard to the expert 's conclusion of DATE that the environment in which the applicant lived was unsafe , whereas the applicant 's husband was able to provide good living conditions for ORG . The recommendation by ORG to fix the place of residence of both daughters with the father was taken into account . The court also observed the girls ' wish to stay together , and to be close to other family members ( grandparents ) and friends living in GPE . Certain instances of inadequate care were noted , namely , the applicant 's failure on CARDINAL occasion to arrange for ORG 's medical assistance or to ensure her attendance at school . Finally , the appellate court observed that the first - instance court had not assessed ( nevertino ) the material submitted to ORG characterising the PERSON movement as controversial . Neither did the first - instance court give any credit to the fact that the movement had been unable to obtain registration as a religious community .","The applicant submitted a cassation appeal , alleging , inter alia , that the court 's decision was discriminatory , and that it had failed to respect her family life . She requested that her youngest daughter , ORG , live with her .","On DATE ORG dismissed the applicant 's cassation appeal . It emphasised that the rights of both parents in the education of their children were equal , regardless of their beliefs , convictions or views . The custody dispute was to be resolved taking into account the best interests of the children , in which context their wishes should be considered , regardless of their age . In assessing the significance of such wishes , the most important factor would be the children 's ability to formulate , express and substantiate their views .","ORG established that ORG had amply explained her preference to stay with her father during the entire proceedings , both in her submissions to the courts and during the interviews with the experts . She had stressed , in particular , that her mother had not taken adequate care of her , often leaving her alone and neglecting to cook meals . The girl had also expressed a preference for living in GPE , together with her sister and close to other relatives and friends . She had noted that her father spent more time with her and took better care of her . ORG emphasised that the experts had considered that the living conditions of the applicant were unsafe for children .","ORG further assessed the material conditions of accommodation offered by both parents . It was established that the applicant 's husband was able to provide his daughters with a separate room in a private cottage in the countryside near GPE .","ORG also emphasised the importance for the CARDINAL sisters to be brought up together , and underlined that close ties existed between them .","The applicant 's allegations of discrimination were dismissed as unsubstantiated . In this respect , ORG noted :","\u201c The applicant 's claim in her cassation appeal that the appellate court had breached the principle of non - discrimination , enshrined in LAW as well as in [ NORP law ] , by wrongly assessing the evidence on ORG and taking into account that the applicant belonged to it , is unfounded . When determining the place of residence of the CARDINAL children , whose parents live separately , ORG gave priority to the interests of the children , took into account their wishes , the ability and efforts of each parent to guarantee the basic rights of the children , and each parent 's living conditions , that is to say , those conditions in which the children would have to live once their place of residence was decided . The decision of the appellate court did not contain any indication that the resolution of the dispute was influenced by the fact that the applicant was a member of [ PERSON \/ GPE ] ... The appellate court only noted that the first - instance court had not assessed all the evidence regarding the meditation centre . However , that does not presuppose that the appellate court considered the applicant 's membership of the centre important in the resolution of the dispute . Had that been so , such a consideration would require an assessment of whether the prohibition of discrimination on grounds of religion was observed . In its judgments in the cases of PERSON v. GPE and GPE - GPE v. GPE , ORG ruled that the prohibition of discrimination on the basis of religion , enshrined in Articles DATE and CARDINAL of the LAW , had not been respected in cases where the courts had attached decisive importance to the [ applicant 's ] religious affiliation . However , when determining [ the custody dispute ] , the appellate court did not attach significance to the fact that the applicant was a member of [ PERSON \/ GPE ] . \u201d","NORP In an unrelated set of proceedings , ORG requested a court order obliging ORG to register it as a religious community . The action was granted by ORG on DATE . The court found no evidence that ORG propagated any controversial practices amongst its members . GPE was registered as a religious community on DATE .","DATE the Law on ORG ( PERSON teisi\u0173 apsaugos pagrind\u0173 \u012fstatymas ) , in force at the material time , provided that disputes arising over a child 's place of residence , in cases where the parents live separately , were to be resolved in court . It further stipulated that priority consideration had to be accorded to the interests and wishes of a child capable of expressing its own opinion as to which one of its parents it would wish to live with .","Article CARDINAL of LAW stipulates that , in the case of a dispute over a child 's place of residence , the court is to take into consideration the wishes and interests of the child . The child 's choice in the matter may be only disregarded if it is contrary to its best interests . Under LAW , when adjudicating disputes over children , the court must hear the child capable of expressing its views and ascertain its wishes .","On DATE the ORG of the Judges of ORG adopted a ruling \u201c On the application of laws in the case - law of the courts in determining the place of residence of minors when the parents are separated \u201d . The ruling reads :","\u201c CARDINAL . In deciding the dispute between separated parents over a child 's place of residence , the court hearing the case must clarify and establish the following facts of legal importance :","CARDINAL ) the opportunities and efforts of each parent to ensure the implementation of the fundamental rights and duties of the child enshrined in legal provisions ... ;","CARDINAL ) the conditions of the environment of each parent , namely , those conditions in which a child would live once its place of residence with CARDINAL of the parents had been decided ;","CARDINAL ) the wishes and views of the child . ...","( ... ) The court must also find out whether a child , over whose place of residence the dispute arose , has brothers or sisters .... The separation of brothers and sisters , especially in cases where the children have strong emotional attachments to each other and where they are fond of communicating and being together , would violate the interests of the children . ... \u201d","Article CARDINAL of the Code of Civil Procedure provides that a court shall make its own judgement on the probative value of evidence , based on the comprehensive and unbiased examination of that evidence in court .","On DATE the Seimas of GPE ratified the DATE United Nations Convention on the Rights of the ORG which then became an integral part of NORP law . The convention provides , in so far as relevant in the present case , the following :","\u201c CARDINAL . In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration .","GPE Parties undertake to ensure the child such protection and care as is necessary for his or her well - being , taking into account the rights and duties of his or her parents , legal guardians , or other individuals legally responsible for him or her , and , to this end , shall take all appropriate legislative and administrative measures .","GPE Parties shall ensure that the institutions , services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities , particularly in the areas of safety , health , in the number and suitability of their staff , as well as competent supervision . \u201d","\u201c CARDINAL . GPE Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child , the views of the child being given due weight in accordance with the age and maturity of the child .","For this purpose , the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child , either directly , or through a representative or an appropriate body , in a manner consistent with the procedural rules of national law . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5670","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2001,"docname":"HENKEL NEDERLAND B.V. v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm","text":["The applicant is a limited liability company ( besloten vennootschap met beperkte aansprakelijkheid , \u201c GPE \u201d ) having its registered seat in GPE , the GPE . It is represented before the ORG by Mr ORG PERSON , a lawyer and professor of ORG . The respondent Government are represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the limited liability company ORG instituted civil proceedings before ORG ( Arrondissementsrechtbank ) of GPE against the applicant company for alleged breach of contract ( wanprestatie ) claiming , inter alia , damages to an amount of CARDINAL NLG ( GPE guilders ) .","On DATE , ORG submitted its statement of claim ( conclusie van eis ) . In its statement of defence ( conclusie van antwoord ) , submitted on DATE , the applicant company contested ORG claim .","By interim judgment of DATE , ORG ordered the parties\u2019 appearance ( comparitie van partijen ) at a hearing scheduled for CARDINAL DATE in order to clarify certain issues and to examine the possibilities for a settlement ( minnelijke schikking ) .","In its interlocutory judgment of CARDINAL DATE , following a hearing held on DATE , ORG invited the applicant company to prove allegations made . Pursuant to this invitation , CARDINAL witnesses for the applicant company were heard ( enqu\u00eate ) before ORG on DATE . After this taking of evidence ORG scheduled the case for DATE to allow ORG to state whether it wished to submit evidence to the contrary ( uitlating contra - enqu\u00eate ) . This time - limit was prolonged several times .","By letter of CARDINAL DATE , ORG lawyer informed ORG that ORG did not wish to submit evidence to the contrary and requested the court to proceed with the case .","","The applicant company submitted its further conclusions as to these points of evidence ( conclusie na enqu\u00eate ) on DATE , to which ORG responded on DATE . In its submissions of CARDINAL DATE , ORG further sought to amend its initial claim for damages by increasing it to NLG CARDINAL,CARDINAL.CARDINAL .","In its interlocutory judgment of CARDINAL March CARDINAL , ORG noted that ORG had failed to submit CARDINAL of the CARDINAL exhibits it had announced in connection with the amendment of its claim . After having considered the parties\u2019 written submissions after the taking of evidence on DATE , ORG further held that the applicant company had failed to prove that it had been discharged by ORG of its contractual obligations and invited ORG to substantiate certain claims and scheduled the case for CARDINAL DATE .","ORG submitted the substantiation requested on CARDINAL DATE , in which it argued that the breach of contract had caused direct damages amounting to NLG CARDINAL,CARDINAL and additional consequential damages ( gevolgschade ) amounting to NLG CARDINAL .","In its written reply submitted to ORG on DATE , the applicant company objected to the increase of the claim . In its interim decision of CARDINAL DATE , ORG accepted an increase of the initial claim up to an amount of NLG CARDINAL but refused to take into consideration ORG additional claim for consequential damages .","The applicant company made further written submissions to ORG on DATE , as did ORG on DATE .","In its judgment of DATE , ORG found against ORG On DATE , ORG filed an appeal with ORG ( Gerechtshof ) of GPE . It was not before DATE that ORG submitted its objections against the judgment of CARDINAL DATE . The applicant company \u2019s reply was submitted to ORG on DATE .","In its judgment of DATE , ORG quashed the judgment of CARDINAL DATE and found against the applicant company .","In the applicant company \u2019s reply of CARDINAL DATE to ORG objections to the judgment of DATE , the applicant company had argued that ORG had violated principles flowing from rules of proper procedure by its failure to comply with the obligation of substantiation and had caused the proceedings to exceed the reasonable time requirement of LAW , inter alia , by having submitted its objections against the judgment of DATE after having issued the appeal summons .","In its judgment of DATE , ORG construed the applicant company \u2019s submissions as meaning that ORG appeal should be declared inadmissible on the ground that it had unduly prolonged the proceedings . It then rejected this argument . It held that ORG appeal had been lodged within the applicable time - limit . Moreover , the applicant company could have itself limited the delay by asking the ORG to set ORG a peremptory time - limit ( peremptoirstelling ) , of which possibility it had apparently not availed itself .","The applicant company subsequently sought legal advice as to the chances of success of an appeal on points of law to ORG ( PERSON ) . By letter of DATE , Mr H. , a lawyer practising in GPE , advised that such an appeal was likely to fail .","Insofar as the applicant company considered raising a complaint in respect of the length of the proceedings , PERSON considered that it was doubtful that ORG would accept such a complaint under LAW . He noted that ORG had rejected the argument that ORG appeal should be declared inadmissible on grounds of a finding that it had unduly prolonged the proceedings , pointing out that the applicant company could have sought a peremptory time - limit . PERSON further referred to ORG case - law according to which this provision of the LAW only created obligations for ORG and had no horizontal application between private parties .","Pursuant to LAW ) a claimant may amend the claim submitted to the civil courts throughout the proceedings . The adversary party may , however , object to such an amendment if , inter alia , this would cause an undue delay in the proceedings .","LAW states that the judge shall determine time - limits for written submissions and that , where the parties agree on this point , the judge shall respect their wishes unless this would lead to an unreasonable delay . Where CARDINAL of the parties seeks an extension of a given time - limit , which is considered unacceptable by the court or the opposing party , the court may decide to set a peremptory time - limit , i.e. a final time - limit ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4900","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":1999,"docname":"EVERS v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant , born in DATE , is a NORP national and residing in GPE . In the proceedings before the ORG , he is represented by Mr. PERSON , a lawyer practising in GPE .","On DATE , in the context of divorce proceedings before ORG ( ORG ) , the applicant and PERSON , his wife , concluded a maintenance agreement . Under the terms of this agreement , the applicant committed himself to pay maintenance for his CARDINAL children PERSON and GPE , born in wedlock in DATE and DATE , in the DATE amount of DEM CARDINAL each , and for PERSON in the DATE amount of DEM CARDINAL . The agreement also indicated the considerations underlying the calculation of the maintenance payments , in particular the applicant \u2019s DATE net income amounting to ORG and his personal financial needs ( ORG ) .","On DATE the applicant , represented by counsel , applied to ORG for legal aid with a view to institute proceedings against PERSON GPE , claiming that his maintenance payments for her as well as PERSON and GPE be reduced to CARDINAL as from CARDINAL DATE . He submitted that he had remarried in the meantime and that , following the birth of his daughter PERSON in DATE , he had agreed with his wife to take parental leave from DATE . His only income was therefore an educational allowance .","On DATE ORG dismissed the applicant 's request for legal aid on the ground that the intended action lacked sufficient prospect of success .","In its decision , the court stated that the action was inadmissible to the extent that the applicant 's maintenance obligations towards his children PERSON and GPE were concerned , as PERSON was not the proper defendant in this respect .","As regards his claim that his maintenance payments for PERSON be reduced , the court found that the applicant could not invoke his choice concerning the repartition of roles in his new family and resulting reduction of his income vis - \u00e0 - vis PERSON In this respect , the court noted that the applicant was obliged to pay maintenance to PERSON on the ground that she took care of their CARDINAL minor children . The court , referring to the case - law of ORG ( ORG ) , stated that , for the purposes of maintenance , the divorced spouse only had to accept the termination of occupational activities in order to care for a new child , if such a repartition of roles had considerable advantages for the new family . The decisive factor in this respect was the overall amount of the family income . However , the solution envisaged by the applicant did not change the family income . It was only advantageous if his maintenance obligations towards PERSON and his minor children PERSON and GPE would be set aside . In such a situation , the applicant could not evade his primary maintenance obligations towards PERSON as well as PERSON and GPE .","On DATE ORG , upon the applicant \u2019s appeal ( Beschwerde ) , confirmed its decision of CARDINAL DATE .","On DATE the ORG ( Oberlandes - gericht ) dismissed the applicant 's appeal . ORG found that the impugned decision was consistent with the constant case - law of ORG . According to ORG , PERSON was entitled to maintenance under section CARDINAL of LAW ( B\u00fcrgerliches Gesetzbuch ) in order to be in a position to take care of the divorced spouses\u2019 minor children . PERSON Referring to section DATE of LAW , ORG observed that , for the purposes of maintenance matters , a divorced spouse taking care of minor children took precedence over the second wife .","According to section CARDINAL of LAW , a divorced spouse can claim maintenance from the other divorced spouse , as long as and to the extent that , taking care of the spouses\u2019 child , he or she can not be expected to take up gainful occupation . LAW provides that maintenance obligations of a divorced spouse may be reduced in case that the divorced spouse , given his or her earned income , assets and other financial obligations , would risk not to dispose of sufficient own financial means . In determining the maintenance entitlement of a divorced spouse under LAW , the divorced spouse takes , as a rule , precedence over a new spouse ( section DATE ) .","On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant 's constitutional complaint ( ORG ) .","Meanwhile , on DATE the applicant had accepted part - time occupation of TIME per week , with a salary of DEM CARDINAL,CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58338","languageisocode":"ENG","respondent":"LIE","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF WILLE v. LIECHTENSTEIN","importance":1,"conclusion":"Violation of Art. 10;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Elisabeth Palm","text":["In DATE a controversy arose between His PERSON Prince Hans - Adam II of GPE ( \u201c the Prince \u201d ) and the GPE government on political competences in connection with the plebiscite on the question of GPE \u2019s accession to ORG . At the relevant time , the applicant was a member of the GPE government . Following an argument between the Prince and members of the government at a meeting on DATE , the matter was settled on the basis of a common declaration by the Prince , the Diet ( GPE ) and the government .","Following elections and the constitution of the new ORG in DATE , discussions on various constitutional issues took place between the Prince and the government , when the applicant no longer held a government office . The applicant had not stood for re - election in DATE , and he was appointed President of ORG ( PERSON ) in DATE for a fixed term of office ( see paragraph CARDINAL below ) .","On DATE , in the context of a series of lectures on questions of constitutional jurisdiction and fundamental rights , the applicant gave a public lecture at FAC , a research institute , on the \u201c Nature and Functions of the Liechtenstein Constitutional Court \u201d ( \u201c ORG \u201d ) . In the course of the lecture , the applicant expressed the view that ORG was competent to decide on the \u201c interpretation of the LAW in case of disagreement between the Prince ( government ) and the LAW \u201d ( \u201c GPE \u00fcber die GPE der PERSON GPE ( PERSON ) und GPE \u201d ) .","On DATE the newspaper PERSON published an article on the lecture given by the applicant , mentioning , inter alia , his views on the competences of ORG .","On DATE the Prince addressed a letter to the applicant concerning the above lecture , as summarised in the article published in the Liechtensteiner Volksblatt .","NORP The letter , written on heraldic letter paper , read as follows :","\u201c FAC , DATE","PERSON","President of ORG","[ applicant \u2019s private address ]","Sir ,","I was astonished to read the report in the DATE issue of the Liechtensteiner Volksblatt on your lecture on the theme of the \u2018 Nature and Functions of ORG . I assume that the statements you made on the ORG \u2019s areas of responsibility have been correctly reproduced in this report , in particular the comment that ORG can , as a court that interprets the law , be appealed to in the event of a disagreement between the Prince and the people .","You will doubtless remember the discussion between the government and me in the period before DATE , at which you were present as deputy head of government . I drew the government \u2019s attention during this exchange of views at FAC to the fact that it was not abiding by the LAW and read out the relevant Articles thereof . You replied that you did not agree ( or words to that effect ) with these parts of LAW in any case and that you therefore did not consider yourself bound by it . Since the other members of the government did not contradict you , I was forced to assume that the entire government was of the opinion that the CARDINAL bodies that hold supreme power , the people and the Prince , must observe the LAW and the ordinary laws but not the members of the government , who have sworn an oath of allegiance to LAW .","I considered your statement at that time and the government \u2019s attitude to be incredibly arrogant and therefore informed the government in no uncertain terms that it had lost my confidence . Following the compromise that was fortunately reached a little later between the government and the ORG , on the one hand , and myself , on the other , I declared that I once again had confidence in the government , doing so in the hope that individual members had realised that they had taken up an inexcusable position in relation to our LAW and now recognised that they were bound by it . Just as I would have appointed Mr PERSON head of government , had his party won the election , I appointed you President of ORG on the ORG \u2019s recommendation .","Unfortunately , I had to realise following the publication of the report in the Liechtensteiner Volksblatt that you still do not consider yourself bound by the LAW and hold views that are clearly in violation of both the spirit and the letter thereof . Anyone reading the relevant Articles of the LAW will be able to establish that ORG has no competence to decide as a court of interpretation in the event of a disagreement between the Prince and the people ( the ORG ) . In my eyes your attitude , PERSON , makes you unsuitable for public office . I do not intend to get involved in a long public or private debate with you , but I should like to inform you in good time that I shall not appoint you again to a public office should you be proposed by the ORG or any other body . I only hope that in your judgments as President of ORG you will abide by LAW and the ordinary laws for the rest of your term of office .","Yours sincerely ,","PERSON","Prince of GPE \u201d","\u201c PERSON , DATE . DATE","ORG Dr. PERSON","GPE der PERSON .","Verwaltungsbeschwerdeinstanz","...","PERSON geehrter PERSON","PERSON habe ich i m Liechtensteiner PERSON CARDINAL . Februar den ORG am GPE NORP zum Thema \u2018 ORG und Aufgaben des Staatsgerichtshofes\u2019 gelesen . PERSON an , dass ORG \u00fcber die ORG in GPE Bericht korrekt wiedergegeben wurden , insbesondere jene , in der Sie feststellen , dass der Staatsgerichtshof als Interpretations - gerichtshof bei unterschiedlichen ORG und Volk angerufen werden k\u00f6nne .","Sie werden sich bestimmt noch an die PERSON mir vor dem CARDINAL . DATE erinnern , bei PERSON als stellvertretender GPE anwesend waren . PERSON habe damals bei der Aussprache auf PERSON die PERSON , dass sie sich nicht an die PERSON , und die entsprechenden ORG aus der PERSON vorgelesen . PERSON haben dazumal sinngem\u00e4ss geantwortet , dass MONEY Teilen der GPE sowieso nicht einverstanden seien , und sich deshalb auch nicht an die GPE gebunden f\u00fchlten . PERSON die anderen PERSON nicht widersprochen haben , musste ich davon ausgehen , dass die gesamte PERSON , dass sich zwar die PERSON , ORG , an Verfassung und Gesetze zu halten haben , nicht aber die PERSON , welche einen Eid auf die GPE abgelegt haben .","PERSON habe ORG damalige Aussage sowie die ORG der PERSON als unglaubliche ORG empfunden , und deshalb habe ich der Regierung in sehr klaren PERSON mitgeteilt , dass sie mein Vertrauen verloren hat . PERSON , der gl\u00fccklicherweise etwas sp\u00e4ter zwischen ORG GPE auf der einen Seite PERSON der anderen ORG erzielt wurde , habe ich der PERSON mein PERSON . PERSON habe dies auch in der PERSON getan , dass die PERSON ihre unentschuldbare GPE gegen\u00fcber unserer Verfassung eingesehen haben und die PERSON sie wieder als bindend anerkennen . PERSON ich ORG PERSON seiner Partei wiederum zum GPE ernannt h\u00e4tte , so habe ich NORP \u00fcber Vorschlag des Landtages zum Pr\u00e4sidenten der Verwaltungs - beschwerdeinstanz ernannt .","PERSON muss ich aufgrund des GPE i m Liechtensteiner Volksblatt nun feststellen , dass Sie sich nach wie vor nicht an die GPE gebunden f\u00fchlen und Auffassungen vertreten , die eindeutig gegen PERSON . PERSON einschl\u00e4gigen ORG feststellen k\u00f6nnen , dass PERSON nicht NORP bei unterschiedlichen ORG zwischen ORG und Volk ( GPE ) ist . In meinen ORG sind Sie , PERSON Dr. PERSON , aufgrund ORG gegen\u00fcber der Verfassung ungeeignet f\u00fcr ein \u00f6ffentliches ORG . PERSON habe nicht die PERSON , mich PERSON oder privat in eine lange ORG einzulassen , aber ich PERSON mitteilen , dass ich PERSON \u00f6ffentliches ORG ernennen werde , sollten Sie mir DATE oder sonst irgendeinem Gremium vorgeschlagen werden . Es verbleibt mir die PERSON , dass PERSON als NORP der PERSON in GPE Urteilen an PERSON halten .","GPE vorz\u00fcglicher Hochachtung","PERSON .","PERSON GPE \u201d","NORP By letter of CARDINAL DATE the applicant informed the President of the ORG about the letter of CARDINAL DATE . He denied having ever made a statement to the effect that he did not consider himself bound by the LAW or parts thereof . He further explained his research on the competences of ORG in constitutional matters . According to him , the expression of an opinion not shared by the Prince could not be regarded as a failure to comply with LAW . However , taking into account the conclusions drawn by PERSON in the said letter , his office as President of ORG was called into question . The President of the ORG subsequently informed the applicant that the ORG had discussed the matter in camera and had come to the unanimous conclusion that the applicant \u2019s office was not called into question on account of his legal opinions as stated in the context of his lecture .","On DATE the applicant replied to the letter sent by the Prince on DATE , and enclosed a copy of his letter to the President of the ORG . He explained in particular that it was his conviction as a lawyer that his statements on the occasion of the lecture of DATE , namely that ORG was competent to decide on the interpretation of the LAW in case of a dispute between the Prince and the people ( ORG ) , were correct and did not infringe the LAW . The applicant concluded that the declaration made by the Prince that he did not intend to appoint the applicant to a public office , amounted to an interference with his rights to freedom of opinion and to freedom of thought , as guaranteed under LAW and LAW . It further called into question the constitutional right to equal access to public office and constituted an attempt to interfere with judicial independence .","NORP In his letter in reply dated DATE , the PERSON noted that PERSON PERSON had distributed the letter of CARDINAL DATE to a large group of persons . The PERSON stated that it had been his intention to avoid a public discussion in informing PERSON , in a personal letter , about his decision as early as possible . He considered that a long debate between them on the question of PERSON qualification for the office of judge was inappropriate , as PERSON had remained in office and the PERSON \u2019s criticism had not been directed at the decisions of ORG , but at Mr PERSON \u2019s general attitude towards the LAW .","The Prince added that it was left to his discretion whether or not to appoint a candidate for public office and that he was not obliged to give any reasons for such a decision . However , as he had known Mr PERSON for DATE , he had considered it appropriate to state the reasons for his decision regarding him . Moreover , the decision no longer to appoint him to the office of President of CARDINAL of the highest courts , on account of his attitude in the past as well as the opinions expressed by him , did not amount to an interference with PERSON rights to freedom of expression and to freedom of thought . All citizens were free to propose and to plead for amendments to constitutional or other legal provisions . However , PERSON , during his term of office as a member of the government and in his lecture , had not availed himself of such constitutional and democratic means , but had simply ignored those parts of the LAW with which he disagreed .","The Prince further explained that the relevant provision , namely LAW , concerned the competence of ORG to decide on the interpretation of the LAW in case of a dispute between the government and the ORG . Confusing the terms \u201c Government \u201d and \u201c ORG \u201d with \u201c Prince \u201d or \u201c people \u201d , as PERSON had done , would undermine the rule of law . As head of ORG , he was obliged to safeguard the constitutional order and the democratic rights of the people . He would be failing in his duties if he were to appoint to CARDINAL of the highest judicial offices a person whom , owing to his attitude and the statements he had made , he could not regard as being committed to upholding the LAW .","On DATE the Prince sent to the applicant , President of ORG , an open letter which was published in GPE newspapers . The PERSON noted that PERSON had made public at least part of the PERSON \u2019s letter of CARDINAL DATE . As this had given rise to various comments , the Prince considered it necessary to explain his point of view in an open letter .","In his opinion , in a democratic ORG based on the rule of law ( demokratischer PERSON ) , a distinction had to be drawn between freedom of expression and the means used by an individual for imposing his views in such a society . In that connection , the individual should respect the rules defined in the LAW and other statutory provisions . The Prince further stated that it was the right of PERSON , in his position as a judge , to express the opinion that the monarchy was no longer opportune ; that LAW should be amended ; that the Prince should be subject to the jurisdiction of the GPE judiciary ; and that ORG should be given supplementary competences . However , PERSON was not entitled to place himself above the existing LAW or incite ORG to lay claim to competences which were not vested in it by virtue of LAW . The Prince considered that PERSON , having regard to his education and professional experience , knew that the terms \u201c people \u201d ( \u201c Volk \u201d ) , \u201c ORG \u201d ( \u201c GPE \u201d ) , \u201c Government \u201d ( \u201c PERSON \u201d ) and \u201c Prince \u201d ( \u201c FAC ) and their respective rights and obligations were clearly defined in the LAW . The applicant \u2019s contention that these terms were interchangeable would jeopardise the LAW and the constitutional ORG as a whole .","The Prince also made reference to the political events in DATE and , lastly , he stated that , on the basis of the article in a GPE newspaper of CARDINAL DATE , he was forced to conclude that PERSON continued to have the intention of placing himself above LAW . He explained that he had therefore intended to inform PERSON , in a personal letter and as early as possible , about his decision not to appoint him to public office in future .","In DATE the applicant \u2019s term of office as President of ORG expired . On DATE ORG decided to propose the applicant again as President of ORG .","NORP In a letter of DATE to the President of the Diet the Prince refused to accept the proposed appointment . He explained that , considering his experiences with PERSON , he had become convinced that PERSON did not feel bound by LAW . In these circumstances , he would be failing in his duties as head of ORG if he were to appoint PERSON PERSON as President of ORG . The Prince further stated that PERSON , on account of his other professional qualifications , had made important contributions as a judge of ORG and that he ( the Prince ) could therefore understand the proposal made to a certain extent . If the ORG did not share his doubts regarding PERSON , it could elect him as associate judge of ORG .","The applicant is currently employed as a researcher by ORG .","The Principality of GPE is a constitutional , hereditary monarchy on a democratic and parliamentary basis ; the power of the ORG is inherent in and emanates from the Prince and the people and shall be exercised by both of them in accordance with the provisions of LAW ( LAW of DATE ) .","Chapter II of the LAW is entitled \u201c The Prince \u201d . In its LAW , it stipulates that the Prince is the head of the ORG and exercises his sovereign authority in conformity with the provisions of the LAW and of the other laws ; and that his person is sacred and inviolable . Further competences are laid down in LAW . According to LAW , the Prince appoints the ORG officials , in conformity with the provisions of LAW ( see LAW concerning the head of the government , the government councillors and their substitutes ; LAW concerning the president of ORG and his deputy ; LAW , in conjunction with LAW , concerning the first - instance judges ; LAW concerning the members of ORG ( Obergericht ) and ORG ( Oberster Gerichtshof ) ) . By letter of DATE , the Prince informed the GPE government that he instructed it to proceed , within its competence , with the appointment in DATE of ORG officials who , pursuant to LAW , were to be appointed by the Prince .","Chapter IV of the LAW contains the general rights and obligations of citizens of the Principality . LAW stipulates the equality of all citizens before the law , and also provides that the public offices are equally open to them , subject to observance of the legal regulations .","According to LAW , all decisions or orders by the government are subject to appeal before ORG . ORG consists of a president trained in the law and of his deputy , who are appointed by the Prince on the proposal of the ORG , and of CARDINAL appeal judges and their substitutes , who are elected by the ORG . The president and his deputy must be GPE nationals . Their term of office coincides with that of the ORG , and ends at such time as they are replaced .","According to LAW , ORG is , inter alia , competent to protect rights accorded by LAW . LAW ( Staatsgerichtshofgesetz ) provides that decisions of a court or of an administrative authority may be challenged before ORG , by alleging that there has been an infringement of constitutional rights or of rights guaranteed under LAW .","Pursuant to LAW , in conjunction with section CARDINAL of LAW , the judges of ORG are elected by the ORG ; the election of the president and the deputy president are subject to confirmation by the Prince .","Article CARDINAL of the LAW reads as follows :","\u201c If doubts arise as to the interpretation of specific provisions of the LAW and can not be dispelled on the basis of an agreement between the ORG and the ORG , ORG is called upon to decide on the matter . \u201d","\u201c PERSON \u00fcber die GPE einzelner Bestimmungen der PERSON entstehen und nicht durch \u00dcbereinkunft zwischen der PERSON Landtage beseitigt werden k\u00f6nnen , so hat hier\u00fcber PERSON . \u201d","In DATE the GPE government introduced a bill in ORG with the object of amending LAW of DATE . In its comments on the provision regarding ORG competence to decide on the interpretation of specific provisions of the LAW , the government explained , inter alia , its views on the wording and purpose of LAW and in particular on the term \u201c Government \u201d which should be understood as referring to the Prince . At the preparatory stage , the Prince , in a letter addressed to the applicant , who at the time held the office of deputy head of the GPE government , had stated his disagreement with the proposed interpretation . The applicant explained the bill in ORG when it received its first reading in DATE . In the course of the discussions , the President of the ORG questioned the interpretation of LAW , as contained in the government \u2019s comments . The bill was passed by the ORG on DATE ; however , the Prince failed to sign it so that it did not enter into force .","Under LAW of ORG ( PERSON , LGBl DATE Nr . CARDINAL ) , judges are required to swear an oath , including the duties of loyalty to the Prince and of obedience to the laws and LAW ."],"violated_articles":["10","13"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60499","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2002,"docname":"CASE OF WILLIS v. THE UNITED KINGDOM","importance":1,"conclusion":"Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;No violation of Art. 14+8 in connection with widow's pension;Not necessary to examine Art. 14+8 or 14+P1-1 in connection with alleged discrimination against applicant's late wife;No violation of Art. 13","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant is a NORP national born in DATE and living in GPE .","NORP In DATE the applicant married PERSON . They had CARDINAL children : PERSON , born on DATE , and PERSON , born on DATE . PERSON died of cancer on DATE , at DATE . The applicant is the administrator of his late wife 's estate .","PERSON had been employed as a local authority housing officer . For the greater part of her married life , she was the primary breadwinner . She had paid full social - security contributions as an employed earner until DATE , and was subsequently entitled to contribution credits as a person unfit for work . On DATE the applicant gave up work to nurse his wife and care for their children . Following his wife 's death , he worked part time DATE and DATE , for an DATE salary of MONEY ( GBP ) , but since this proved uneconomic he stopped working to care full time for the children .","On DATE the applicant applied to ORG for the payment of social - security benefits . He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of PERSON would have been entitled , namely a widow 's payment and a widowed mother 's allowance , payable under ORG DATE .","By a letter dated DATE , ORG informed the applicant that the benefits he had claimed did not exist for widowers , and that his claim accordingly could not be accepted as valid . The letter continued :","\u201c I am afraid I can only explain that the ORG says that it has no plans to introduce a widowers ' pension on the same line as the existing widows ' benefits .","It may help if I explain the current policy underlying widows ' benefits was established at a time when married women rarely worked . It is based on the assumption that women are more likely than men to have been financially dependent on their spouse 's earnings and therefore more likely on widowhood to face greater financial hardship . The benefits themselves are concentrated on those widows who are perceived to have the greatest problems , those with children and older women who may have been out of the labour market for DATE .","It is accepted that social patterns have changed considerably since the provisions were first introduced . However , it is still broadly the case that on bereavement , women are more likely than men to be in financial need . For instance , most widowers of working age will have been in employment before the death of their wives . They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work . Women on average earn less than men . So even for women who have been working , the financial loss on widowhood is likely to be significantly more than for men .","Widows ' benefits are not means tested and are paid regardless of the level of the widows ' earnings . The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings , and in some cases , very high earnings indeed . To make existing widows ' benefits provisions available to widowers would add MONEY to the DATE ORG budget . The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered , this is simply not a best use of scarce resources .","In making these points , the ORG says that it is in no way minimising the sad problems faced by widowers , in particular those left with small children to care for . For them there are already available benefits such as ORG and CARDINAL Parent Benefit , together with the range of income - related benefits , for example , Income Support for those not in full time work and ORG for low paid workers . In the ORG 's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows ' benefits along the lines suggested . ... \u201d","NORP The applicant lodged a statutory appeal against this decision on DATE . ORG declined jurisdiction on the basis that no appealable decision had been made .","The applicant currently receives child benefit and , in respect of his son PERSON , received a disability living allowance and an invalid care allowance for a period following his wife 's death . He is also in receipt of a widower 's pension under PERSON occupational pension scheme . The applicant has capital , much of which is derived from a joint endowment policy ( for which he and PERSON had paid premiums ) which matured on PERSON death , from which he obtains a further income of MONEY per month . Because of his savings , the applicant does not qualify for means - tested benefits such as income support or family credit . All the social - security benefits he receives would also be received by a widow , who would in addition be paid a widow 's payment and a widowed mother 's allowance .","NORP Under GPE law , certain social - security benefits , including widow 's payment , widowed mother 's allowance and widow 's pension , are paid for out of ORG . By CARDINAL of ORG DATE ( \u201c the DATE LAW ) , the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of ORG by earners , employers and others , together with certain additions made to the ORG by ORG .","Male and female earners are obliged to pay the same social - security contributions in accordance with their status as employed earners or self - employed earners .","NORP Under section CARDINAL of the DATE Act , a woman who has been widowed is entitled to a widow 's payment ( a lump sum payment of GBP CARDINAL ) if :","( i ) she is under pensionable age at the time when her husband died , or he was not then entitled to a Category A retirement pension ; and","( ii ) her husband satisfied certain specified social - security contribution conditions set out in a schedule to LAW .","Under the relevant part of section CARDINAL of the DATE Act , a woman who has been widowed ( and who has not remarried ) is entitled to a mother 's allowance on certain conditions , the following being the conditions relevant to the circumstance of the present case :","( i ) her husband satisfied the contribution conditions set out in a schedule to the LAW ; and","( ii ) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband .","The widowed mother 's allowance currently amounts to GBP CARDINAL per week , with an extra GBP CARDINAL per week in respect of the eldest eligible child , and a further GBP CARDINAL per week in respect of other children .","Under LAW of the DATE Act , a woman who has been widowed ( and who is not remarried ) is entitled to a widow 's pension if her husband satisfied the contribution conditions set out in a schedule to the LAW ; and","( i ) at the date of her husband 's death she was over DATE but under DATE ; or","( ii ) she ceased to be entitled to a widowed mother 's allowance at the time she was over DATE but under DATE .","If the applicant were a woman , he could look forward to entitlement to a widow 's pension at some stage DATE , depending on when his youngest child ceased to be a dependant , at which time he would no longer be entitled to the widowed mother 's allowance .","Section CARDINAL(CARDINAL ) of the DATE Act , which applies to the applicant , provides that no entitlement to a benefit arises unless a claim for the benefit is made in the prescribed manner and within the prescribed time .","At the relevant time , the time - limits for claiming a widow 's payment and a widowed mother 's allowance were set out in ORG Regulations DATE ( Statutory Instrument CARDINAL\/CARDINAL ) , Regulation CARDINAL of which provided :","\u201c ( CARDINAL ) The prescribed time for claiming benefits not specified in column ( CARDINAL ) of Schedule CARDINAL shall be \u2013","...","( b ) DATE in the case of ... widow 's benefit ...","( CARDINAL ) The periods of TIME prescribed by paragraph ( CARDINAL ) are calculated from DATE on which , apart from satisfying the condition of making a claim , the claimant is entitled to the benefit concerned . \u201d","In addition , section CARDINAL(CARDINAL ) of ORG DATE provides , in relation to claims for a widow 's payment :","\u201c Where under subsection ( CARDINAL ) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it \u2013","( a ) if the benefit is a widow 's payment , she shall not be entitled to it in respect of a death occurring DATE before the date on which the claim is made or treated as made ... \u201d","The Welfare Reform and Pensions Act DATE ( \u201c the DATE LAW ) introduces CARDINAL new social - security benefits , the widowed parent 's allowance and the bereavement allowance . The widowed parent 's allowance replaces the widowed mother 's allowance . The bereavement allowance replaces the widow 's pension . Both are payable to men and women who meet the relevant qualifying conditions . LAW also introduces a new social - security payment , called a bereavement payment , payable both to men and women in place of the widow 's payment .","NORP The relevant parts of the LAW came into force on DATE and allow any man whose wife dies before , on or after that date , or any woman whose husband dies on or after that date , to apply for the widowed parent 's allowance . It also allows any man whose wife dies on or after that date to apply for the bereavement payment or the bereavement allowance in exactly the same way as a woman whose husband dies on or after that date .","The transitional provisions of the DATE Act preserve the entitlements of women under LAW whose husbands died before DATE . Such women thus continue to be entitled to the widow 's payment , the widowed mother 's allowance and the widow 's pension where the relevant qualifying conditions are met .","On DATE Mr Justice PERSON delivered judgment in ORG in a case brought by CARDINAL claimants , all of whom were widowers claiming , inter alia , that their ineligibility for widows ' benefits under LAW was discriminatory contrary to LAW taken in conjunction with both LAW No . CARDINAL . CARDINAL of the claimants had been left with dependent children , with the result that the benefits at issue in their cases were the widow 's payment and the widowed mother 's allowance . The fourth claimant ( Mr Naylor ) had been left without dependent children , with the result that the benefits at issue in his case were the widow 's payment and the widow 's pension .","NORP The defendant government department conceded before ORG that there had been discrimination under LAW taken in conjunction with LAW to non - payment of the widowed mother 's allowance . As regards the question of whether the claimants ' complaints , in so far as they related to the widow 's payment and the widow 's pension , fell within the ambit of LAW commented as follows :","\u201c In my view , the availability of pecuniary support afforded by ORG and ORG does have a significant effect on the relationship of a family prior to the death of the spouse . They form a significant part of a family 's plans for a secure future . ...","Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse . ...","Moreover , Widow 's Payments and Widow 's Pensions form part of a congeries of provisions , all of which are designed to provide support to a surviving spouse at different stages of her life . Widow 's Payments ... are CARDINAL - off payments made immediately on bereavement . Widowed Mother 's Allowances are paid whilst she looks after dependent children and PERSON 's Pension payable in the longer term DATE when she has finished bringing up her children . Viewed as part of a package , the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband .","Accordingly , for those reasons I conclude that the failure to make Widow 's Payment and ORG available to a surviving widower falls within the ambit of LANGUAGE CARDINAL(CARDINAL ) . Thus LAW is itself engaged . \u201d","In dismissing the claimants ' arguments that the same complaints fell also within the ambit of LAW No . CARDINAL , Mr Justice PERSON commented :","\u201c ... In order to establish that the benefits in issue are their possessions , the claimants must establish a pecuniary right based upon their contributions . Absent such contributions , they have no possession within the meaning of LAW . There is no hint , in any of the cases that the [ ORG intended to depart from the fundamental principle that to come within the ambit of LAW , a property right must be established . ...","... A deceased widow 's entitlement to benefits depends upon the contributions of the deceased husband . ... A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse . He thus has no entitlement and consequently no possession within the meaning of LAW . \u201d","Prior to his examination of whether there was objective justification for non - payment of the widow 's pension to widowers , Mr Justice PERSON observed :","\u201c Only Mr PERSON 's case raises the issue of ORG . Although other claimants , in their written argument , raised the issue of future entitlement to ORG , such a claim is hypothetical , since they are too young to claim it now and may never become entitled should they re - marry , ... or should they co - habit ... \u201d","Mr Justice PERSON concluded that there was objective justification for the difference in treatment between widows and widowers as regards entitlement to a widow 's pension under LAW ."],"violated_articles":["14","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":["13","14","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100448","languageisocode":"ENG","respondent":"NLD","branch":"GRANDCHAMBER","date":2010,"docname":"CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS","importance":2,"conclusion":"Violation of Art. 10","judges":"Alvina Gyulumyan;Christos Rozakis;Corneliu B\u00eersan;Egbert Myjer;Fran\u00e7oise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lef\u00e8vre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Luis L\u00f3pez Guerra;Mark Villiger;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Zdravka Kalaydjieva","text":["The applicant company is based in ORG . Its business is publishing and marketing magazines , including the DATE Autoweek , which caters for readers who are interested in motoring .","On DATE , an illegal street race was held in an industrial area on the outskirts of the town of GPE . Journalists of PERSON attended this race at the invitation of its organisers .","The applicant company state that the journalists were given the opportunity to take photographs of the street race and of the participating cars and persons on condition that they guarantee that the identities of all participants would remain undisclosed . The Government , for their part , dispute the existence of any agreement involving more than a small number of organisers or participants at most .","The street race was ended by the police , who were present and eventually intervened . No arrests were made .","The applicant company intended to publish an article about illegal car races in LOC no . CARDINAL\/CARDINAL of DATE . This article would be accompanied by photographs of the street race held on DATE . These photographs would be edited in such a manner that the participating cars and persons were unidentifiable , thus guaranteeing the anonymity of the participants in the race . The original photographs were stored by the applicant company on a CD - ROM , which was kept in the editorial office of a different magazine published by the applicant company ( not NORP ) .","The police and prosecuting authorities were afterwards led to suspect that CARDINAL of the vehicles participating in the street race had been used as a getaway car following a ram raid on DATE ( see paragraphs CARDINAL - CARDINAL below ) .","On TIME DATE , a police officer contacted the PERSON editorial office by telephone , summoning the editors to surrender to the police all photographic materials concerning the street race of DATE . This police officer was informed by the staff member whom she had called , namely the features chief editor ( chef reportage ) , that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race . The features chief editor further told this police officer that he thought that the press was reasonably protected against this kind of action and advised her to contact the editorial office in writing .","In TIME DATE , at TIME , QUANTITY police detectives visited the LOC editorial office and , after having unsuccessfully tried to obtain the surrender of the photographs , issued PERSON \u2019s editor - in - chief with a summons , within the meaning of Article CARDINALa of the Code of Criminal Procedure ( Wetboek van Strafvordering ) . This summons had been issued by the GPE public prosecutor ; it ordered the applicant company to surrender , in the context of a criminal investigation into offences defined in ORG CARDINAL - CARDINAL of LAW ( GPE ) against an unspecified person , the photographs taken on DATE during the illegal street race in GPE and all related materials . On behalf of the applicant company , ORG \u2019s editor - in - chief PERSON refused to surrender the photographs , considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity .","DATE , a telephone conversation took place between , on the one side , CARDINAL public prosecutors and , on the other , the lawyer of the applicant company Mr PERSON . Mr PERSON was told by the public prosecutors that \u201c it concerned a matter of life and death \u201d . No further explanation was given and Mr PERSON \u2019s request for written confirmation that the matter was CARDINAL of \u201c life and death \u201d was not entertained .","The police detectives and the public prosecutors threatened to detain PERSON during DATE of CARDINAL to CARDINAL DATE or even longer for having acted in violation of LAW , i.e. the offence of failure to comply with an official order ( ambtelijk bevel ) , and to seal and search the whole of the applicant company \u2019s LOC , if need be for DATE period and beyond , and remove all computers . The threatened search would entail financial damage for the applicant company as , during DATE , articles were to be prepared for publication on the subject of the wedding of the GPE PERSON , due to take place on DATE .","At TIME on DATE , PERSON was arrested on suspicion of having violated LAW . He was not taken to the police station but remained on the applicant company \u2019s LOC . After the GPE public prosecutor had arrived on these LOC and after he had been brought before the prosecutor , Mr PERSON was released at TIME","NORP The applicant company then consulted their counsel , PERSON , and a second lawyer , PERSON , the latter being a specialist in criminal procedure . At some point the CD - ROM was transferred to the ORG offices unbeknown to the public prosecutor and the police investigators . Upon this , the public prosecutor and the other persons involved went to the ORG offices .","Mr NORP spoke with the public prosecutors involved for TIME , from TIME . Taking the view that judicial authorisation was required , he sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge ( rechter - commissaris ) of ORG ( rechtbank ) , who was then contacted by telephone . After having spoken with PERSON , and after having been briefed by one of the public prosecutors , the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company \u2019s journalistic privilege . While recognising from the outset that by law he lacked competence in the matter , he also stated that , had he had the power to do so , he would have been prepared to give an order to that effect and even to sanction a search of the offices .","On DATE at TIME , the applicant company , through Mr S. and Mr NORP and under protest , surrendered the CD - ROM containing the photographs to the public prosecutor , who formally seized it . An official receipt issued by a police officer describes it as a CD - ROM in purpose - made packaging , the packaging labelled in handwriting \u201c FAC , ORG [ ORG ] driving simulator , sidecar motorcycle with coffin \u201d . The receipt stated that Mr S. had handed over the CD - ROM under protest .","On DATE the applicant company lodged a complaint under LAW PERSON of LAW , seeking the lifting of the seizure and restitution of the CDROM , an order to the police and prosecution department to destroy copies of the data recorded on the CD - ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD - ROM .","On DATE a hearing was held before ORG during which the public prosecutor explained why the surrender of the photographs had been found necessary . The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of walls with the aid of a shovel loader , and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s ) of those robberies .","In its decision of DATE ORG granted the request to lift the seizure and to return the CD - ROM to the applicant company as the interests of the investigation did not oppose this . It rejected the remainder of the applicant company \u2019s complaint . It found the seizure lawful and , on this point , considered that a publisher \/ journalist could not , as such , be regarded as enjoying the privilege of non - disclosure ( verschoningsrecht ) under Article CARDINALa of LAW . Statutorily , the persons referred to in LAW and acknowledged as enjoying the privilege of non - disclosure were , amongst others , public notaries , lawyers and doctors . It considered that the right to freedom of expression , as guaranteed by LAW , included the right freely to gather news ( recht van vrije nieuwsgaring ) which , consequently , deserved protection unless outweighed by another interest warranting priority . It found that , in the instant case , the criminal investigation interest outweighed the right to free gathering of news in that , as explained by the public prosecutor during the hearing , the investigation at issue did not concern the illegal street race , in which context the undertaking of protection of sources had been given , but an investigation into other serious offences . ORG was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests , the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race . It found established that the data stored on the CD - ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing . It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified . ORG did not find that the seizure had been rash , although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter .","The applicant company lodged an appeal on points of law with ORG ( PERSON ) , which on DATE gave a decision declaring it inadmissible . ORG held that , as ORG had accepted the applicant company \u2019s complaint in so far as it related to the request to lift the seizure and to return the CD - ROM , the applicant company no longer had an interest in its appeal against the ruling of DATE . Referring to its earlier case - law ( ORG , CARDINAL DATE , PERSON ( GPE Law Reports \u2013 \u201c GPE \u201d ) DATE , no . CARDINAL , and ORG , CARDINAL DATE , GPE DATE , no . CARDINAL ) , it held that this finding was not altered by the circumstance that the complaint \u2013 apart from a request to return the CD - ROM \u2013 also contained a request to order that any print - outs or copies of the CD - ROM were to be destroyed and that data collected with the aid of the CD - ROM could not be used : neither Article CARDINALa nor any other provision of LAW provided for the possibility of obtaining a declaratory ruling that the seizure or the use of the seized item was unlawful once the item had been returned .","The order issued under LAW was closely related to a criminal investigation into a series of ram raids which had taken place on DATE , DATE and DATE . In these ram raids , cash dispensers were removed from walls using a shovel loader . A group of suspects was identified , the main suspects being A and M.","A telephone conversation involving M , tapped in the context of the investigation into those raids on DATE , revealed that M and A had participated in an illegal street race in GPE with an ORG RSCARDINAL motor car DATE .","On DATE another ram raid took place . During the incident , a bystander was threatened with a firearm . After ramming a wall , the perpetrators removed a cash dispenser and hauled it off in a lorry , which was followed closely by an ORG RSCARDINAL . The police , who had already been informed of the incident , saw the lorry stop and the driver get into an ORG , which then drove away with CARDINAL people inside . The police followed , but the ORG accelerated to QUANTITY and disappeared from view .","Article CARDINALa of the Code of Criminal Procedure reads as follows :","\u201c CARDINAL . If it is suspected that a crime within the meaning of LAW has been committed , the investigating officer may order a person to surrender an object if it is reasonable to suspect that the person has an object subject to seizure in his possession .","NORP The order shall not be issued to the suspect .","By virtue of their right to decline to give evidence , the following persons are not obliged to comply with an order of this nature :","a. the persons described in LAW ;","b. the persons described in LAW , insofar as surrender for seizure would violate their duty of confidentiality ;","c. the persons referred to in LAW , insofar as surrender for seizure would put them or their relatives at risk of prosecution for a criminal offence . ... \u201d","Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure lists the offences in respect of which detention on remand may be ordered . These include , among others , the offences defined in Articles CARDINAL - CARDINAL of LAW ( theft , theft under aggravating circumstances , and robbery ) .","A failure to comply with an order under Article ORG constitutes an offence as defined in , as relevant to the case , Article CARDINAL ( failure to comply with an official order ) of LAW . This is an indictable offence ( misdrijf ) carrying a DATE maximum prison sentence or a fine .","Persons who , by virtue of ORG CARDINAL - CARDINAL of the Code of Criminal Procedure , enjoy the privilege of nondisclosure include","a. an accused \u2019s relatives , ( former ) spouse and ( former ) registered partner ( Article CARDINAL ) ;","b. persons who , by virtue of their position , profession or office , are bound to secrecy \u2013 albeit that their privilege of non - disclosure only covers matters the knowledge of which has been entrusted to them in that capacity ( LAW ; this category is traditionally considered to include doctors , advocates , clergy and notaries ) ; and","c. persons who , by giving evidence , expose themselves , their relatives to the second or third degree , their ( former ) spouse or their ( former ) registered partner to the risk of a criminal conviction ( Article CARDINAL ) .","Article CARDINALa of LAW entered into force on DATE . Prior to this date , only the investigating judge was competent to issue an order to surrender for the purposes of seizure ( former LAW ) .","Article PERSON of LAW reads as follows :","\u201c CARDINAL . Interested parties may lodge a written complaint about seizure , the use of seized objects , the failure to order the return , or the examination ( kennisneming ) or use of information recorded by means of an automatised device and recorded during a house search , and about the examination or use of information as referred to in Articles CARDINAL , CARDINAL , ORG and FAC [ i.e. letters and parcels sent by post , Articles CARDINAL , FAC and CARDINAL ; electronic data , such as internet traffic , recorded by CARDINAL party , ORG CARDINALi and CARDINALj ] .","The written complaint shall be lodged as soon as possible after the seizure of the object or the examination of the information at the registry of the trial court before which the case is being prosecuted or was last prosecuted . The written complaint shall not be admissible if it is lodged at a time when DATE have passed since the case prosecuted has been brought to a close .","...","The hearing in chambers ( raadkamer ) to examine the written complaint shall be public .","If the court considers the complaint to be well - founded , it shall give the appropriate order . \u201d","Until DATE , ORG did not recognise a journalistic privilege of non - disclosure . On DATE , it handed down a judgment in which it found that a journalist , when asked as a witness to disclose his source , was obliged to do so unless it could be regarded as justified , , that the interest of non - disclosure of a source outweighed the interest served by such disclosure . This principle was overturned by ORG in a landmark judgment of DATE on the basis of the principles set out in the ORG \u2019s judgment of DATE in the case of PERSON v. GPE . In this ruling , ORG accepted that , pursuant to LAW , a journalist was in principle entitled to non - disclosure of an information source unless , on the basis of arguments to be presented by the party seeking disclosure of a source , the judge was satisfied that such disclosure was necessary in a democratic society for CARDINAL or more of the legitimate aims set out in LAW ( Nederlandse Jurisprudentie ( ORG , \u201c GPE \u201d ) DATE , no . CARDINAL ) .","Guidelines on the position of the press in relation to police action ( ORG over de positie van de pers bij politieoptreden ) were issued by the Minister of ORG ( Minister PERSON ) on DATE . At the time of the events complained of , they provided , in relevant part :","\u201c CARDINAL . Seizure of journalistic material","Journalistic material may be seized in cases described in LAW . Journalists may be faced with seizure in CARDINAL ways .","NORP The police may , on the instructions of a public prosecutor ( officier van justitie ) or an assistant public prosecutor ( hulpofficier van justitie ) or not as the case may be , arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot .","There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed . In this situation , the journalist is arrested like any ordinary citizen .","If a prosecution ensues , it will be for the independent judge eventually to decide what is to be done with any seized DATE and unpublished \u2013 material .","B. Journalistic material may also be seized on the orders of an independent judge ( the investigating judge ) , if such material may \u2013 in the judge \u2019s opinion \u2013 serve to clarify the truth in a preliminary judicial investigation ( gerechtelijk vooronderzoek ) .","... \u201d","On DATE , the boards of ORG - in - Chief ( PERSON ) and GPE ( PERSON ) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials . This commission \u2013 which was composed of a professor of criminal law , the secretary of GPE , a ORG judge and an editor of a national DATE newspaper DATE concluded in its report of DATE , inter alia , that specific legislation was not necessary and that by way of making certain procedural changes \u2013 such as a preliminary assessment procedure , where it concerned the application of coercive measures in cases where the protection of sources was in issue \u2013 a number of problem areas could be resolved .","Already in DATE , PERSON DATE at the time a member of ORG of ORG ( ORG ) \u2013 had submitted a private member \u2019s bill ( initiatiefwetsvoorstel ) to amend LAW and LAW in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them . On DATE , after remaining dormant , this bill was eventually withdrawn without having been taken up in parliament .","On DATE , in the light of the case - law developments in this area and Recommendation No . R(CARDINAL ) CARDINAL adopted by ORG DATE ( see below ) , ORG ( College van procureurs - generaal ) adopted an ORG within the meaning of LAW of ORG ( Wet op de Rechterlijke Organisatie ) on the application by ORG of coercive measure in respect of journalists ( Aanwijzing toepassing dwangmiddelen bij journalisten ; published in ORG , no . CARDINAL ) , which entered into force on DATE for DATE . This Instruction defines who is to be considered as a \u201c journalist \u201d and sets out the pertinent principles and guidelines as regards the application of coercive measures , such as inter alia an order under LAW ORG , in respect of a journalist .","In a judgment given on DATE concerning the search of premises of a publishing company on DATE ( ORG [ National Jurisprudence Number ] PERSON ) , ORG held inter alia :","\u201c The right of freedom of expression , as set out in LAW , encompasses also the right to freely gather news ( see , amongst others , PERSON v. the GPE , judgment of DATE , GPE DATE , no . CARDINAL ; and Roemen and PERSON v. GPE , judgment of DATE [ ORG CARDINALIV ] ) . An interference with the right to freely gather news \u2013 including the interest of protection of a journalistic source \u2013 can be justified under LAW in so far as the conditions set out in that provision have been complied with . That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision . Secondly , the interference must serve CARDINAL of the aims mentioned in LAW . Thirdly , the interference must be necessary in a NORP society for attaining such an aim . In this , the principles of subsidiarity and proportionality play a role . In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other , less far - reaching ways ( minder bezwarende wegen ) can be followed along which this interest can be served to a sufficient degree . Where it concerns a criminal investigation , it must be considered whether the interference with the right to freely gather news is proportionate to the interest served in arriving at the truth . In that last consideration , the gravity of the offences under investigation will play a role . \u201d","The Court \u2019s judgment in the ORG case ( ORG v. the GPE , no . CARDINAL\/CARDINAL , DATE ) has prompted the ORG to introduce new legislation . A bill now pending before ORG proposes to add a new LAW CARDINALa ) that would explicitly allow \u201c witnesses to whom information has been entrusted within the framework of the professional dissemination of news ( beroepsmatige berichtgeving ) or the gathering of information for that purpose , or the dissemination of news within the framework of participation in the public debate , as the case may be \u201d \u2013 that is , professional journalists in particular \u2013 to refuse to give evidence or identify sources of information . Such a right would be more limited than that enjoyed by the categories enumerated in Articles CARDINAL , CARDINAL and CARDINAL of LAW ; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest ( zwaarderwegend maatschappelijk belang ) would result from such refusal . However , persons covered by the proposed new Article CARDINALa would not be among those entitled to refuse outright to surrender items eligible for seizure : the bill proposes to include them in the enumeration contained in LAW ( paragraph CARDINAL above ) .","Several international instruments concern the protection of journalistic sources , among others , ORG , adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) and the ORG on ORG by ORG ( DATE , ORG of ORG . C CARDINAL\/CARDINAL ) .","ORG Recommendation No . R(CARDINAL ) CARDINAL on the right of journalists not to disclose their sources of information was adopted by ORG DATE and states , in so far as relevant :","\u201c [ ORG ] Recommends to the governments of member States :","to implement in their domestic law and practice the principles appended to this recommendation ,","to disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and","to bring them in particular to the attention of public authorities , police authorities and the judiciary as well as to make them available to journalists , the media and their professional organisations .","Appendix to Recommendation No . R ( DATE ) CARDINAL","Principles concerning the right of journalists not to disclose their sources of information","Definitions","For the purposes of this Recommendation :","a. the term \u2018 journalist\u2019 means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication ;","b. the term \u2018 information\u2019 means any statement of fact , opinion or idea in the form of text , sound and\/or picture ;","c. the term \u2018 source\u2019 means any person who provides information to a journalist ;","d. the term \u2018 information identifying a ORG means , as far as this is likely to lead to the identification of a source :","i. the name and personal data as well as voice and image of a source ,","ii . the factual circumstances of acquiring information from a source by a journalist ,","iii . the unpublished content of the information provided by a source to a journalist , and","iv . personal data of journalists and their employers related to their professional work .","Principle CARDINAL ( Right of non - disclosure of journalists )","Domestic law and practice in member GPE should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with LAW ( hereinafter : the Convention ) and the principles established herein , which are to be considered as minimum standards for the respect of this right .","ORG Right of non - disclosure of other persons )","Other persons who , by their professional relations with journalists , acquire knowledge of information identifying a source through the collection , editorial processing or dissemination of this information , should equally be protected under the principles established herein .","Principle CARDINAL ( Limits to the right of non - disclosure )","a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW . In determining whether a legitimate interest in a disclosure falling within the scope of LAW of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member GPE shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .","b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :","i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and","ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :","- an overriding requirement of the need for disclosure is proved ,","- the circumstances are of a sufficiently vital and serious nature ,","- the necessity of the disclosure is identified as responding to a pressing social need , and","- member GPE enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .","c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked .","ORG Alternative evidence to ORG sources )","In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person , authorities should consider , for the purpose of establishing the truth or otherwise of the allegation , all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist .","Principle CARDINAL ( Conditions concerning disclosures )","a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure .","b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested .","c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with LAW .","d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority .","e. Where journalists respond to a request or order to disclose information identifying a source , the competent authorities should consider applying measures to limit the extent of a disclosure , for example by excluding the public from the disclosure with due respect to LAW , where relevant , and by themselves respecting the confidentiality of such a disclosure .","Principle CARDINAL ( Interception of communication , surveillance and judicial search and seizure )","a. The following measures should not be applied if their purpose is to circumvent the right of journalists , under the terms of these principles , not to disclose information identifying a source :","i. interception orders or actions concerning communication or correspondence of journalists or their employers ,","ii . surveillance orders or actions concerning journalists , their contacts or their employers , or","iii . search or seizure orders or actions concerning the private or business LOC , belongings or correspondence of journalists or their employers or personal data related to their professional work .","b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions , although this might not have been the purpose of these actions , measures should be taken to prevent the subsequent use of this information as evidence before courts , unless the disclosure would be justified under LAW .","ORG against self - incrimination )","The principles established herein shall not in any way limit national laws on the protection against self - incrimination in criminal proceedings , and journalists should , as far as such laws apply , enjoy such protection with regard to the disclosure of information identifying a source . \u201d","For the precise application of the ORG , the explanatory notes specified the meaning of certain terms . As regards the term \u201c sources \u201d the following was set out :","\u201c c. Source","Any person who provides information to a journalist shall be considered as his or her \u2018 source\u2019 . The protection of the relationship between a journalist and a source is the goal of this Recommendation , because of the \u2018 potentially chilling DATE an order of source disclosure has on the exercise of freedom of the media ( see , Eur . Court H.R. , PERSON v. GPE , DATE , para . CARDINAL ) . Journalists may receive their information from all kinds of sources . Therefore , a wide interpretation of this term is necessary . The actual provision of information to journalists can constitute an action on the side of the source , for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures . Information shall also be regarded as being \u2018 provided\u2019 when a source remains passive and consents to the journalist taking the information , such as the filming or recording of information with the consent of the source . \u201d","Media Legal Defence Initiative , Committee to Protect Journalists , Article CARDINAL , ORG and ORG , who were given leave by the President to intervene in the written procedure , submitted inter alia the following comparative - law information ( footnote references omitted ) :","\u201c Echoing the ORG scrutiny of review procedures and ORG recommendation that non - disclosure of sources be sanctionable only under \u2018 judicial ORG . No . R(CARDINAL)CARDINAL , Principle MONEY ) ) , many national laws state that only courts may compel disclosure of information identifying confidential sources . The following can be taken as typical examples of legislation to this effect :","- Law on Radio and Television Broadcasting , Art . CARDINAL ( GPE ) , DATE , Law No . CARDINAL ( revisions in force DATE ) ( ORG audiovizualului ) ( only law courts may compel disclosure of a journalist \u2019s confidential sources ) ;","- Media Act ( GPE ) , Art . CARDINAL , CARDINAL DATE , ORG . CARDINAL ( Zakon o medijima ) ( similar ) ;","- Code of Criminal Procedure , Art . CARDINAL ( GPE ) , DATE , Law No . CARDINAL ( PERSON ) ( right to keep sources confidential is a testimonial privilege ) ;","- Law of GPE on ORG , Art . CARDINAL , DATE , ( ... ) ( disclosure may be compelled only by a \u2018 court decision , in the course of a criminal proceeding\u2019 of certain serious crimes ) ;","- Radio and Television Law , LAW ( GPE ) , DATE , Decree No . CARDINAL ( as amended DATE ) ( ORG \u0437\u0430 \u0440\u0430\u0434\u0438\u043e\u0442\u043e \u0438 \u0442\u0435\u043b\u0435\u0432\u0438\u0437\u0438\u044f\u0442\u0430 ) ( allowing for disclosure only in \u2018 pending court proceedings or a pending proceeding instituted on an appeal from an affected person\u2019 where court issues appropriate order ) .","Courts have stressed the same . The NORP constitutional court , investigating the compatibility of that country \u2019s sources laws with the standards set by ORG , has held that \u2018 the legislator ... has a duty to establish , by law , also that in every case it is only the court that can decide whether the journalist must disclose the source of information.\u2019","In GPE , search and seizure warrants may be issued only by a judge . Only when there is imminent risk may a prosecutor order such a search . The authorising judge or prosecutor must always consider the impact of the proposed action on press freedom ; and whether a search or seizure has been ordered by a judge or by a prosecutor , ex post facto judicial review must always be available .","In GPE , prior judicial review of efforts to compel information from journalists is a baseline requirement . In nearly all circumstances , law enforcement authorities must issue a subpoena to try to compel journalists to turn over information , which the journalists may then challenge in court before providing the information . In the very limited circumstances where police may proceed by search warrant ( as stated above , these include probable cause to believe the possessor of the information \u2018 has committed or is committing the criminal offense to which the materials relate\u2019 , or that the search or seizure is \u2018 necessary to prevent death or serious ORG ) a judge must issue the warrant . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100036","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2010,"docname":"CASE OF BAL\u010cI\u016aNAS v. LITHUANIA","importance":4,"conclusion":"Violation of Art. 5-3;No violation of Art. 6-1;No violation of Art. 6-3-d","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall","text":["The applicant was born in DATE and lives in ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested on suspicion of armed robbery . While remanded in custody the applicant was held in FAC , ORG and other remand establishments .","On DATE ORG authorised the applicant 's remand in custody until DATE . In ordering the detention , the court referred to the nature and gravity of the charges against the applicant , and stated that \u201c it was likely that the applicant could attempt to abscond from investigators and the trial as well as obstruct the establishment of the truth in the case \u201d . The applicant and his defence counsel were present at the hearing .","On DATE ORG extended the term of the applicant 's detention until DATE due to the fear \u201c that he would abscond \u201d . The applicant 's lawyer was present at the hearing .","On DATE the applicant appealed against that ruling .","Having received the appeal on DATE , on DATE ORG dismissed it , arguing that the applicant \u201c had been charged with a serious crime and if released would obstruct the investigation and the establishment of the truth \u201d . The applicant 's counsel was present at the hearing .","On DATE ORG extended the term of the applicant 's detention until DATE . Having briefly summed up the charges against the applicant the court stated that \u201c the applicant had been charged with a serious crime , therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court , obstruct the establishment of the truth and commit fresh crimes \u201d . The applicant and his lawyer were present at the hearing .","On DATE the applicant appealed against the order to extend his detention . On CARDINAL DATE the appeal was received by ORG , which on DATE dismissed the applicant 's appeal , his defence counsel being present . The court again stated that \u201c the applicant had been charged with a serious crime , therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court and would obstruct the investigation \u201d .","On DATE the \u0160iauliai City District Court extended the term of the applicant 's detention until CARDINAL DATE . Listing the charges against the applicant the court stated that \u201c the applicant had been charged with a serious crime , therefore there was a reason to believe that if at liberty he would try to abscond from the investigators , commit fresh crimes and influence witnesses \u201d . The applicant and his lawyer were present .","On DATE ORG extended the term of the applicant 's detention until DATE on the ground that \u201c he had been charged with a serious crime , therefore there was a reason to believe that if at liberty he would commit fresh crimes and obstruct the establishment of the truth \u201d . The applicant and his defence counsel were present at the hearing . The applicant appealed , stating , inter alia , that he had to undergo surgery .","The applicant 's appeal was dismissed by ORG on DATE , with his defence counsel present . The court stated that \u201c the applicant had been charged with serious crimes , he had not confessed and his guilt was based on statements by numerous witnesses , therefore there was a reason to believe that if at liberty he would try to influence witnesses and would obstruct the establishment of the truth in this case \u201d .","On DATE ORG extended the term of the applicant 's remand in custody until DATE . The court again listed the charges against the applicant and stated that \u201c the applicant had been charged with a serious crime . There is a reason to believe that if at liberty he would obstruct the establishment of the truth in the case and would commit fresh crimes \u201d . The applicant and his lawyer were present at the hearing .","The applicant appealed , arguing that the investigation had been delayed and that the authorities had not exercised due diligence in investigating the case . The applicant also submitted that he had no criminal record and had a permanent place of residence . There was no evidence that he would try to abscond from the investigation or commit fresh crimes .","On DATE the applicant 's appeal against the order of DATE was dismissed by ORG , with the applicant 's defence counsel being present . For the court , the reasons for extending the applicant 's detention were that \u201c the evidence in the case allowed the conclusion that the applicant had committed the crimes he had been charged with . Given that the applicant denied his guilt , the lower court had correctly concluded that if released the applicant would obstruct the establishment of the truth in the case that is to say he could influence witnesses , either himself or through others . He might also abscond from the investigation or commit fresh crimes \u201d .","On DATE ORG extended the term of the applicant 's detention until DATE . Stating the charges against the applicant in CARDINAL sentences , the court noted that \u201c the applicant was accused of CARDINAL crimes , CARDINAL of which was serious . The data in the case file allowed the presumption that the applicant had committed those crimes . Given that the applicant denied his guilt , it was reasonable to believe that , if at liberty , he could obstruct the establishment of the truth in the case and influence witnesses and co - accused , either himself or though third parties . He might also hide from investigators or commit other crimes \u201d . The applicant and his defence counsel were present at the hearing .","The applicant appealed , reiterating that he had a permanent place of residence and that there were no grounds to believe that he might abscond or obstruct the course of justice . The charges had already been presented to him . Moreover , notwithstanding the requirements of LAW to demonstrate the need to keep a person in detention , the prosecutor had presented no such evidence to the court . As regards the applicant , the fact that he had not confessed to the crimes he had been charged with was not a reason to assume that he would commit fresh crimes or attempt to obstruct the establishment of the truth in his case . Lastly , he mentioned that he had no prior convictions and had a permanent place of residence , his parents ' flat .","On DATE ORG dismissed the applicant 's appeal , endorsing the reasons given by the lower court . The applicant 's lawyer was present at the hearing .","The \u0160iauliai Regional Court further extended the term of the applicant 's detention by the following orders :","- order of CARDINAL DATE : until DATE ;","- order of DATE : until DATE ;","- order of CARDINAL DATE : until DATE .","For that court , the reasons to keep the applicant in detention were that the applicant , if released , would \u201c attempt to obstruct the establishment of the truth in his case \u201d , \u201c influence witnesses \u201d , \u201c hide from investigators \u201d and \u201c commit fresh crimes \u201d .","The applicant and his defence counsel were present at all the hearings at which his detention was extended .","On DATE the prosecution approved the bill of indictment concerning the charges of armed robbery against the applicant and CARDINAL other co - accused . The case was sent to court .","On an unknown date the ORG requested ORG to ensure that GPE and GPE , CARDINAL of the applicant 's accomplices who had testified against him and had been released from criminal liability by the prosecutors , were brought before the court for questioning . On DATE and DATE ORG and ORG informed the prosecutors that , according to the information they had gathered , PERSON and PERSON had left GPE and their place of residence was unknown .","On DATE ORG convicted the applicant of complicity in armed robbery ( Articles CARDINAL \u00a7 DATE and CARDINAL \u00a7 CARDINAL of LAW ) . The court based its conclusion , inter alia , on the evidence given by GPE and GPE , whose statements as recorded during the pre - trial investigation were read out . The applicant was sentenced to DATE imprisonment , towards which the court counted the period from DATE to CARDINAL DATE , when the applicant had been in pre - trial detention .","The applicant appealed , complaining that the proceedings were unreasonably long . He also alleged that the trial court should not have admitted the submissions of PERSON and PERSON in evidence , as he had not been afforded an opportunity to challenge these witnesses in open court . The applicant alleged a violation of LAW .","Invoking LAW of the LAW the applicant also submitted that he had already been in pre - trial detention DATE and DATE ( from DATE ) and argued that the detention had been extended on numerous occasions without lawful grounds . The prosecutors had joined his case to other cases and disjoined it later . During all that time he was detained , the courts would dismiss his appeals to impose another , milder remand measure . Given that on DATE ORG had acquitted him [ in the second set of criminal proceedings ] and he had been released from pre - trial detention only on DATE , in its judgment of DATE ORG had wrongly assessed the time which needed to be counted towards the punishment .","By a ruling of CARDINAL DATE ORG ordered ORG to bring PERSON and PERSON to court for questioning . However , the police informed the court that it was not possible to summon PERSON and PERSON as they had left GPE . Moreover , the relatives of GPE and PERSON had moved house , therefore it was not possible to question them in order to establish where the former were living .","On DATE the Court of Appeal inquired of ORG as to whether GPE and PERSON had crossed the State border and whether they had returned to GPE . On DATE ORG informed ORG that GPE and PERSON had left the country .","On DATE ORG upheld the conviction . It noted that the trial court had based its conclusion on various pieces of evidence , namely the submissions of the applicant 's co - defendant and a witness , both of whom had been questioned at the trial . In the opinion of the appellate court , PERSON and PERSON had only provided information which was also known from other sources . Having analysed those other sources at length and in depth , alone and against each other , ORG concluded that even without the testimony of GPE and GPE there was sufficient proof of the applicant 's guilt .","Lastly , ORG concluded that the trial court was impartial towards the applicant , given that it had substituted the charges against the applicant with a lesser charge , by convicting him as a person who had merely assisted in the commission of a crime and not as the organiser .","In contrast , ORG agreed with the applicant 's argument that all the time he had spent in pre - trial detention should be counted towards his sentence :","\u201c The chamber notes the not entirely correct nature of the information given in the bill of indictment , to the effect that L. PERSON was arrested on CARDINAL November CARDINAL , remanded in custody on DATE and the detention continued only until DATE ; and that afterwards detention was imposed in another criminal case , adjudicated by ORG .","From supplementary information ORG has received ( DATE ruling of ORG ) it transpires that in another criminal case , in which NORP Bal\u010di\u016bnas was convicted and acquitted ( ... ) [ paragraphs CARDINAL hereinafter ] , new pre - trial detention has not been imposed on the applicant ; it was the detention of CARDINAL DATE which was being continued . \u201d","ORG upheld the applicant 's sentence of DATE imprisonment . However , the applicant was deemed to have completed the sentence in view of the time spent remanded in custody DATE from DATE to CARDINAL DATE .","The applicant lodged a cassation appeal , complaining that his conviction had been based on the submissions of witnesses who had not been questioned by him or the courts . He also alleged that ORG had not examined the issue concerning the allegedly excessive length of the proceedings and the lawfulness of his remand in custody .","On DATE ORG dismissed the applicant 's cassation appeal . The cassation court noted that the evidence leading to the applicant 's conviction had been properly handled and assessed by the lower courts . His guilt had been based to a substantial degree on the evidence given by a witness and CARDINAL of his co - defendants , who had all been examined in open court . The trial court was entitled to refer to the submissions by PERSON and PERSON , which had been recorded during the pre - trial investigation . The authorities had taken all the necessary measures to summon PERSON and PERSON to the hearing , but had failed to obtain their attendance in view of the fact that their place of residence was unknown . ORG acknowledged that the appellate court had not answered the applicant 's allegation that the investigation and his pre - trial detention had lasted an unreasonably long time . It noted however that these circumstances did not constitute sufficient grounds to find that ORG had failed to respect the relevant procedural requirements . Lastly , ORG noted that ORG had rectified the trial court 's mistake and correctly counted the period of pre - trial detention towards the time of the punishment .","On an unspecified date , another set of criminal proceedings was instituted against the applicant . In particular , it was suspected that he had been a member of a criminal organisation , and that in DATE he had been involved in organising CARDINAL explosions in public places , causing a number of injuries to others . CARDINAL other persons were charged alongside the applicant ; the charges related to events which took place in DATE .","On DATE , upon approval of the bill of indictment , the case was transmitted to ORG .","On CARDINAL DATE ORG ordered the applicant 's detention to be \u201c continued \u201d until DATE , referring to the risk that he would abscond , commit new offences and obstruct the investigation . The applicant and his defence counsel were present at the hearing .","NORP The applicant appealed . However , on DATE ORG dismissed his appeal , referring to the gravity of the charges against the applicant . The applicant 's counsel was present at the hearing .","Subsequently the applicant 's detention was extended by court orders of DATE , DATE , CARDINAL DATE and DATE and of CARDINAL May , CARDINAL DATE and CARDINAL October CARDINAL . The applicant 's lawyer was present at the hearings . The courts referred to the risk of the applicant reoffending , influencing witnesses and obstructing the investigation . All his appeals were unsuccessful .","On DATE ORG ordered ORG office to summon PERSON and PERSON to the hearing for questioning .","By the same ruling ORG extended the term of the applicant 's detention until DATE on the ground that he might influence witnesses and commit fresh crimes . The applicant 's lawyer was present at the hearing . The applicant appealed , requesting a variation of the remand . He submitted , inter alia , that the lengthy stay in custody had negatively affected his health . He also alleged that the pre - trial investigation had been concluded , and that there were no grounds to believe that he might abscond from the trial or influence witnesses .","On DATE ORG dismissed his appeal , endorsing the grounds indicated in the order of DATE . The court acknowledged that the applicant had been in detention \u201c for a long time already \u201d and observed that after the case was transferred to court , some delays had been caused by \u201c organisational matters of the court \u201d . Nonetheless , in the view of ORG , the length of the applicant 's detention was justified by the complexity of the case ( multiple charges against several co - defendants , numerous victims and witnesses ) and a voluminous case file . The case had been adjourned several times at the request of the defence to examine certain additional evidence , or due to the failure by certain witnesses or defence lawyers to appear at the hearing . The circumstances justifying the applicant 's detention persisted . The applicant and his defence counsel were present at the hearing .","On DATE the ORG further extended the applicant 's detention until DATE on the same grounds . The applicant 's lawyer was present at the hearing .","The applicant appealed , requesting a variation of the remand . He argued , inter alia , that the pre - trial investigation had been terminated , most of the victims and witnesses had been questioned in court , and it remained only for the court to evaluate the evidence and pass a judgment . Thus it was not likely that the applicant would influence witnesses or obstruct the establishment of the truth in the case , given that he had not done so for DATE .","On DATE ORG dismissed the applicant 's appeal against the order of CARDINAL DATE . The court acknowledged that the applicant had been detained for a prolonged period . However , in view of the circumstances , such as the complexity and volume of the case and the number of charges against various co - defendants , the court concluded that the applicant 's continuing detention was justified . The grounds for the applicant 's detention thus continued to persist - it was necessary in order to guarantee that he would appear before the court , as well as to prevent the commission of new offences .","On DATE the ORG convicted the applicant of being a member of a criminal organisation which possessed explosives ( Article CARDINAL \u00a7 CARDINAL of LAW ) , illegal possession of explosives ( LAW ) , attempts at aggravated murder ( Articles LAW , QUANTITY , DATE , DATE , DATE ) , and destruction of property ( LAW ) . He was sentenced to DATE imprisonment and fined , and his property was confiscated .","DATE . On DATE ORG acquitted the applicant . The court noted that the conviction was based to a decisive extent on the submissions of CARDINAL witnesses , PERSON and PERSON , who had not been examined in open court . The applicant was released in the courtroom .","On DATE ORG dismissed an appeal by the prosecution .","On an unknown date the applicant lodged a complaint with the ORG , arguing that the conditions of his detention at ORG were inadequate . In particular , the applicant contended that the facility was overcrowded and that the cell he had been placed in was constantly damp , the mats were wet and a sanitary unit did not work properly .","In the report of CARDINAL DATE the ORG partly agreed with the applicant 's complaints , noting that ORG suffered from overcrowding ( QUANTITY persons were held there , the limit being CARDINAL ) and from a shortage of properly set up sanitary units . In the report the ORG also observed that :","\u201c the fact that the applicant was detained for CARDINAL and a half years could demonstrate a significant risk that a violation of his right to a trial within a reasonable time or to release pending trial , that is to say a violation of LAW , would be found . It could be said that a lengthy period of detention during judicial proceedings could have a disproportionate impact on his other rights : for example , the restriction on longer visits for those in pre - trial detention , no opportunity to take exercise , and other restrictions \u201d .","In the operative part of the report the ORG urged the responsible authorities to resolve the problem of overcrowding and to evaluate the hygiene conditions at FAC .","\u201c Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ...","The grounds for the detention shall be specified . The grounds ... shall be the reasonable suspicion that the accused will :","( CARDINAL ) abscond from the investigation and trial ;","( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;","( CARDINAL ) commit new offences ... whilst suspected of crimes provided in ORG ... CARDINAL [ aggravated murder ] , ... CARDINAL [ founding a criminal organisation ] , ... CARDINAL \u00a7 CARDINAL [ aggravated destruction of property ] ... of LAW ... .","Where there is a reasonable risk that the accused will abscond from the investigation and trial , detention on remand may be ordered , taking into account the accused 's family status , permanent place of residence , employment relations , health , criminal record , relations abroad and other circumstances . ... \u201d .","\u201c ... After the case has been transmitted to the court ... [ a judge ] can order , vary or revoke the detention . ... \u201d","\u201c Detention on remand can not last longer than DATE . A specific term of detention shall be fixed by the judge issuing the remand order ; this term can be extended by the same judge or another judge of the same district court , but only for a period not exceeding DATE .","In view of the particular complexity or size of a case , a judge of a regional court may extend the maximum term specified in the first paragraph of this LAW for a period not exceeding DATE . The extension may be repeated , but the total length of the term at the stage of the pre - trial investigation may not exceed DATE ...","For the purpose of extending the term of detention at the pre - trial stage ... a judge must convene a hearing to which defence counsel and the prosecutor and to which , if necessary , the detained person shall be summoned ... . \u201d","\u201c A person remanded in custody or his defence counsel shall have the right during the pre - trial investigation or trial to lodge [ with an appellate court ] an appeal against detention or the extension of its term ... . A judge or appellate court must examine the appeal within DATE of its receipt . With a view to examining the appeal , a hearing may be convened , to which the arrested person and his counsel or counsel alone shall be summoned . The presence of a prosecutor is obligatory at such a hearing .","The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal ... .","A further appeal shall be determined when examining the extension of the term of the detention . \u201d","\u201c A judge , individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ... ( CARDINAL ) whether the selection of a remand measure is appropriate . \u201d","\u201c After deciding that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ... ( CARDINAL ) of the remand measure in respect of the accused ... \u201d","\u201c In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . \u201d","According to LAW kalinimo \u012fstatymas ) , the administration of the relevant remand institution can allow detainees visits of TIME with family members ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1","6-3"],"non_violated_bulletpoints":["6-3-d"],"violated":true}
{"itemid":"001-106433","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2011,"docname":"CASE OF M. AND C. v. ROMANIA","importance":3,"conclusion":"Violation of Art. 3 (procedural aspect);Violation of Art. 8;No violation of Art. 8;No violation of Art. 14+6;Non-pecuniary damage - award","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["The applicants are mother and son . They were born in DATE and DATE respectively and live in FAC , GPE .","In a letter bearing ORG stamp of CARDINAL DATE and received by ORG on DATE , PERSON complained , inter alia , of violations of her and her son \u2019s rights under LAW and CARDINAL of the LAW in respect of criminal proceedings which ended by a final judgment of DATE .","NORP By letter of DATE the ORG asked PERSON to state clearly whether the complaint under LAW was also raised on her behalf .","NORP By letter of CARDINAL March CARDINAL PERSON confirmed the receipt of the ORG \u2019s letter of DATE and , without referring to any particular articles of the ORG , stated that she complained only on her son \u2019s behalf .","PERSON and GPE were married on DATE . ORG , the couple \u2019s only child , was born on DATE .","On DATE , PERSON filed for divorce from GPE , citing her husband \u2019s volatile and violent nature as the chief ground for divorce . She also asked to be granted full custody of their son . By a judgment of DATE , ORG allowed the claims and granted PERSON full custody of the second applicant . GPE was obliged to pay DATE maintenance until the second applicant became an adult .","Following an application by GPE for custody of the second applicant to be reconsidered and granted to him , on DATE ORG dismissed the claim . The judgment was upheld on appeal , ORG holding on DATE that the father had proved :","\u201c to have had and to still have a violent nature and an uncivilised attitude , provoking situations when visiting his child which are likely to negatively influence the child \u2019s physical and psychological development . \u201d","D.C. also applied to the courts for contact rights with the second applicant on DATE from TIME on DATE until TIME on DATE , as well as for DATE during his DATE leave . The request was granted on DATE by ORG , having in mind the best interests of the child and the fact that his mother \u201c did not oppose the request \u201d . PERSON lodged an appeal , claiming that she had not been lawfully summoned and therefore that she had not had knowledge of the hearing . On an unspecified date , her appeal was dismissed for a procedural error ; the judgment thus became final .","PERSON contested the enforcement of this judgment , essentially relying on the existence of criminal complaints lodged by her against GPE , accusing him of having molested the child ( see section B below ) . ORG dismissed her application on DATE . She appealed against this judgment , and on DATE the proceedings were stayed until a final decision was given in the proceedings concerning the limitation of GPE \u2019s visiting rights ( described below in section C ) .","On DATE , GPE asked for the stay to be lifted . The appeal was dismissed on DATE , as the main objections to the enforcement formulated by PERSON had been clarified within the concluded criminal and civil proceedings respectively ( described below in sections B and C ) .","PERSON appealed on points of law . The appeal was dismissed by ORG on DATE . The court held that her argument that the enforcement of the disputed judgment would affect the child \u2019s fundamental rights was unfounded , relying mainly on the judgment of CARDINAL DATE which had confirmed the prosecutor \u2019s decision not to indict D.C ..","On DATE , at PERSON request , ORG for LOC , GPE decided that the second applicant should be temporarily placed in a state institution ,","\u201c as it had been proved that the child \u2019s development , security and moral integrity were being endangered by his biological father . \u201d","The child was placed in ORG no . CARDINAL , GPE , GPE .","The above - mentioned decision was amended on DATE , following a reassessment of the case file that the ORG made of its own motion . The ORG considered that the protection measures already undertaken ought to be maintained as , according to information provided by the police , the child had been sexually molested by his father , and consequently a criminal investigation was under way . Both parents were allowed to visit the child once a week , but neither of them had the right to take the child to their home from ORG no . CARDINAL , to which he had been transferred .","On DATE , PERSON lodged a complaint , requesting that ORG institute civil proceedings to have GPE stripped of his parental rights . The request was rejected by the ORG on DATE , as \u201c the necessary legal conditions for such proceedings to be instituted [ had ] not been fulfilled \u201d .","On DATE PERSON asked the Commission to revoke the placement measure and to order the second applicant \u2019s reintegration into his family . By a decision of CARDINAL DATE , ORG allowed the request and ordered that the second applicant should henceforth reside with his mother .","On an unspecified date in DATE PERSON lodged a civil action , seeking to obtain an increase in the DATE maintenance paid by GPE , as both the second applicant \u2019s needs and GPE \u2019s income had increased . PERSON also requested that GPE \u2019s contact rights should be limited so that the second applicant would only spend time with his father in her presence . In support of her latter request , the first applicant alleged that \u201c [ his ] father was a real danger to the health and physical integrity of the child \u201d , that GPE \u2019s verbal and non - verbal behaviour was highly aggressive , and that she had already lodged a criminal complaint against GPE , accusing him of sexually molesting the second applicant . She asserted that due to GPE \u2019s general behaviour she had been forced to temporarily ask for the second applicant to be placed in a state institution , where he would be protected from any possible aggression from his father .","An opinion on the relationship between the second applicant and his father given by ORG , Head of ORG of GPE municipal administration , was added to the case file . ORG stated that she had known the child from the time when he had been temporarily placed in ORG no . CARDINAL , as she had been the manager of the centre at the time . Her remarks are essentially focused on the positive and natural link between GPE and his child , who :","\u201c has an explosion of joy when seeing his father [ ... ] ; after the mother \u2019s visits to the centre , the child became irritable , disobedient , using reprehensible words in connection to his father [ ... ] the audio tape attesting to the so - called sexual abuse is proof of answers being induced from the child , the mother having made a significant contribution regarding the child \u2019s attitude towards his father . Only when [ his ] father appeared did the child forget whatever his mother had induced him to feel ( due to the joy he felt when meeting his father ) , which is clear proof that ORG had not attacked the child , not only sexually , but not even verbally or in any other way . \u201d","On DATE ORG allowed the request with respect to the child maintenance increase ; the request for limitation of contact rights was dismissed , the court taking into account the fact that the prosecutor had decided on DATE not to institute criminal proceedings against GPE and to close the investigation ( see paragraph CARDINAL , below ) . An appeal by PERSON was dismissed on DATE as timebarred . A further appeal on points of law was also dismissed on DATE by ORG .","On DATE , GPE reapplied for full custody of the second applicant . He stated that he had not been allowed to visit his son , and that even though the first applicant had lodged a criminal complaint against him , the prosecutor had issued a decision not to indict him for sexually abusing the child . At the same time , GPE asserted that the first applicant was a member of ORG , and that therefore her influence on the child endangered his normal development . PERSON replied that the prosecutor \u2019s decision not to press charges against GPE had been confirmed and a criminal investigation was still pending . The action was dismissed on DATE by ORG . The court held that the reasons relied upon by GPE with respect to the first applicant \u2019s religion were not to be taken into consideration . It also considered that the reasons which substantiated the court \u2019s previous decision to grant full custody to the first applicant had not changed in any way . The decision became final .","On DATE , GPE lodged a request with ORG , asking it to order the urgent placement of the second applicant in a state institution . He alleged that he did not have any information regarding the current home of the applicants , as they had continually and frequently changed their place of residence , and consequently no information on the second applicant \u2019s well - being was available to him . The request was denied on DATE , as it had not been proved that the second applicant was in any danger .","On DATE , by means of interlocutory proceedings , GPE sought full custody of the second applicant , giving as a reason that \u201c it is dangerous for the child to stay close to his mother , as even though she is a caring mother , she still has a bad influence on the minor \u2019s later development \u201d . He also cited the fact that in DATE the first applicant had lodged a criminal complaint , accusing him of having molested the second applicant . GPE alleged that ever since that time he had constantly been prevented from visiting his son , who in any case had radically changed his whole attitude towards him , refusing contact .","The request was dismissed as inadmissible on DATE , ORG holding that the parties\u2019 obvious and serious conflicts could not be settled within such expeditious proceedings . The judgment became final on DATE , the GPE ORG ruling an appeal on points of law brought by GPE inadmissible .","On DATE , PERSON lodged a criminal complaint against GPE , alleging that \u201c the child had related to her that on DATE , when visiting his father , the latter had attempted to commit acts of sexual perversion with him \u201d . The second applicant was DATE and DATE at the time .","A medical certificate issued on DATE by ORG attested to the following :","\u201c ... the anal mucous membrane reveals a bleeding longitudinal fissure of CARDINAL by QUANTITY . [ ... ] The child , GPE , has a traumatic lesion in the anal area , which could have been produced in the circumstances of a sexual assault . Healing requires DATE of medical care . \u201d","No civil claims were lodged .","According to PERSON , a second criminal complaint was lodged on DATE regarding similar sexual acts perpetrated CARDINAL , when the second applicant was visiting his father . However , a copy of this complaint was not submitted to the ORG .","The first applicant , GPE and other witnesses were heard . CARDINAL witnesses , PERSON and GPE , informed the authorities , inter alia , that they had been told by the second applicant that he had been sexually assaulted by his father . Moreover , they had witnessed GPE \u2019s violent behaviour towards PERSON and had seen the minor undressing and touching other children in an inappropriate manner . However , another witness , C.A. , stated that she had never heard the second applicant complaining of sexual assault . On DATE a medical report was produced by ORG , attesting as follows :","\u201c ORG has recent and old lesions in the anal area , which could be the result of the intromission of a solid object or a consequence of anal sexual contact . It is possible that the lesions occurred on DATE . DATE of medical care are required for healing . \u201d","On DATE the minor was subjected to a psychological examination , which concluded as follows :","\u201c ... the results of the projective tests emphasise the possibility that ORG , aged DATE and DATE , could have been sexually abused . \u201d","A forensic report concerning simulated behaviour was produced on DATE , both PERSON and GPE being subjected to a test and asked various questions . According to the conclusions of the report , indicators of dissimulation were detected when PERSON answered the following relevant questions ( CARDINAL out of the total of CARDINAL asked ) : whether she had set up the sexual assault on the child ; whether she had been taught by somebody else to frame someone for the sexual assault perpetrated on the child ; whether she had obliged or urged somebody to introduce an object into her child \u2019s anus .","At the same time , the conclusions of the report showed that GPE \u2019s attitude seemed to be sincere when he answered CARDINAL questions , the relevant ones being : whether he had had anal sexual intercourse with his child ; whether he had molested the minor DATE CARDINAL DATE or on DATE ; and whether he had ever thought about having unusual sexual relations .","Upon a request from the police , a new medical report was produced on DATE by ORG , concluding as follows :","\u201c We reassert our opinion that the child , ORG , displayed a traumatic lesion in the anal region , which could have occurred in the circumstances of a sexual assault , for which he needed DATE of medical care for healing . The lesion could have been DATE at the time of examination , which means that it could have been produced on DATE . \u201d","On DATE , FAC no . CARDINAL , investigating the case , sent an official note to ORG for GPE , GPE , asking them to ensure the permanent safety of the child until the investigation was terminated , in so far as neither of the parents nor any other person was to be allowed to take the child from ORG , because :","\u201c ... the evidence already adduced in the case shows that the child had been sexually abused . \u201d","On DATE the second applicant was heard by the police in the presence of his mother , a psychologist and a lawyer who had been automatically appointed . From the second applicant \u2019s answers to the questions asked by the police , it emerged that :","\u201c He likes to live with his mother and with his father [ ... ] and that his father had put a hose into his bottom . \u201d","On DATE , the prosecutor decided not to indict GPE for the crime proscribed by LAW and CARDINAL of LAW ( sexual intercourse with a person of the same sex ) . As there were indications of criminal acts of a sexual nature having been committed , the case was split in so far as a further investigation was to be undertaken with a view to identifying the perpetrator .","NORP This decision , challenged by PERSON , was confirmed by the hierarchically superior ORG on DATE .","The prosecutor held that some of the witness statements were hearsay , as most of the witnesses had stated what they had heard and found out from the second applicant himself , who was CARDINAL at the time , being therefore unable to accurately depict reality .","Considering that the forensic report had proved that PERSON answers indicated distortions typical of dissimulation , whereas no such indicators had been revealed from the answers given by GPE , the recommended conclusion was to consider that the first applicant was dissimulating :","\u201c ... due to the existing conflicts as regards the child \u2019s custody and due to the applicant \u2019s selfish affection for the child . \u201d","PERSON again contested this decision . A psychological report completed on DATE and issued by FAC , a neuropsychiatrist , was submitted to the file by PERSON It showed that the child :","\u201c ... had a permanent state of anxiety in connection with his own body [ ... ] phobia and feelings of culpability in connection with the human body were revealed [ ... ] we conclude that the child had been subjected to long and intense stress , stress connected with physical handling of a sexual nature \u2013 possible repeated paternal sexual abuse [ ... ] diagnosis : reactive state ( sexually abused by the father ) . \u201d","On DATE , the hierarchically superior prosecutor quashed the decision and proposed that further investigation of the case should be carried out with respect to acts under LAW and CARDINAL of LAW , consequently remitting the file to ORG .","The decision was taken having the following in mind :","\u201c ... the medical report \u2019s conclusions are corroborated by those of the psychological examinations of the child , who was shown to have exhibited behaviour typical of those who have been subjected to sexual abuse \u201d ;","and that","\u201c ... there is no indication of the existence of any other person than the father , GPE , who could have committed the impugned acts . \u201d","After the remittal of the case , no other new evidence was produced or adduced to the file . On DATE , the prosecutor again decided not to press charges against GPE in respect of the acts punishable by LAW under LAW and DATE and LAW ( acts of sexual perversion ) . The decision was founded on the evidence already existing in the file ( the medical certificate of DATE , the medical report of CARDINAL DATE , statements gathered in the case , the parties\u2019 arguments and the forensic report on simulated behaviour ) .","On DATE PERSON contested this decision , mainly arguing that in spite of the indications given by the hierarchically superior prosecutor on DATE that the investigation should continue , no new evidence had been produced in DATE that had since passed and therefore that the decision was unsubstantiated .","Her objection was sent from the hierarchically superior prosecutor to ORG . ORG raised a plea of inadmissibility of such an objection , as LAW did not expressly provide for the possibility of parties contesting a prosecutor \u2019s decision not to press charges before the courts .","The first applicant replied by submitting jurisprudential arguments , including a decision of ORG issued on DATE stating that not providing the parties with such an opportunity was unconstitutional . The first applicant also relied upon the adoption of a new PERSON ( no . ORG ) amending old regulations and providing the parties with the possibility of appealing against such decisions to the courts within DATE of its entering into force ( on DATE ) .","On DATE , the court dismissed PERSON appeal . In its judgment , the court made reference to the decision of DATE ( see C below ) and to the reasoning therein . At the same time , it held as follows :","\u201c Because no matter how many witnesses had been heard in the case it could not have been established for certain whether the truth lay with the applicant or with GPE , it was necessary to test the CARDINAL with a polygraph . Following the test , it was established that the applicant was dissimulating , whereas GPE proved to have been sincere when answering the questions asked . \u201d","When referring to the second applicant \u2019s statements given on DATE , the court considered that these were :","\u201c ... a faithful reflection of the mother \u2019s opinions on the matter , the child \u2019s assertions being very structured , similar to those made by an adult , although the child was DATE at the time . The child tried to expose his mother \u2019s thoughts as accurately as possible but , at the same time , he attempted to express his own feelings when he pointed out that he liked to live with his father as well . \u201d","Consequently , the court held that the existing evidence could not be regarded as reliable enough to indict GPE for the alleged crimes , in view of the conclusions of the lie - detector test ( considered to be PERCENT accurate ) , of all of the reports and of the ORG statements .","The court further emphasised the fact that the second applicant had asserted that his father \u201c had only inserted a hose in his bottom and asked him not to tell his mother anything about it \u201d , which would :","\u201c ... constitute at the most a criminal act under LAW ( hitting or other forms of violence ) , stating that a criminal case shall be initiated upon the complaint of the person injured . \u201d","The court made no reference to the initiation on its own motion of a criminal investigation for criminal acts under LAW .","PERSON appealed against this judgment . ORG dismissed the appeal and reiterated the reasoning of the lower court quoted above . It held on DATE that no evidence in the file had proved that the second applicant had actually been a victim of sexual assault perpetrated by his father and therefore that there was no indication in the file to justify a prosecution being instituted against GPE for criminal acts punishable under LAW and CARDINAL and LAW .","On DATE PERSON lodged a civil action , seeking to confine GPE to a contact programme of CARDINAL visits a month and only in her presence . In support of her claims , she alleged that GPE had abused his contact rights when , in DATE and DATE , upon taking the child to his home , he had molested the child . She revealed that she had lodged a criminal complaint against GPE in this regard , but that on DATE the prosecutor had decided not to indict him . Also , a similar civil action had previously been lodged by her , but her claims had been dismissed on DATE , the ORG reasoning relying exclusively on the prosecutor \u2019s decision not to institute criminal proceedings against GPE","GPE asserted that ever since his former wife had left him he had had to struggle in the courts in order to be able to see his son , as she had done everything possible to keep him from having any contact with his son . In that respect , he had even had to lodge a criminal complaint against her , as she was not complying with the court order allowing him to see his son . Even though she had never been indicted , she had allegedly received an administrative sanction . After the incidents that had allegedly occurred in DATE , he had not been allowed to see his son , as the first applicant had continually moved home without informing him .","Mindful of the serious allegations submitted by the parties and what was at stake for the child , the court DATE at a preliminary stage \u2013 considered it necessary for both of the parents to be subjected to a polygraph test and also to undergo psychiatric examination . At the same time , the court found it appropriate to hear the second applicant , even though he was DATE . All discussions with the child were audio taped , and , as is stated in the judgment of the GPE ORG given on DATE , \u201c the transcriptions were to be included in the case file \u201d .","PERSON application was dismissed , the reasoning of the court being essentially the following .","Firstly , the court observed , on the basis of the parties\u2019 past , which had been hostile and which had been partially played out in court , that PERSON intention to limit GPE \u2019s contact rights had been constant over DATE and had started long before the alleged incidents of DATE and DATE . As had emerged from all the documents included in the case file , the first applicant had actually intended to completely prevent GPE from having any contact with his son . The court found that this background showed that her present application had not come as a consequence of the alleged sexual assault , but rather as a predictable consequence of her consistent and strong determination to put an end to any kind of relationship between the second applicant and his father . The following had emerged :","\u201c ... the applicant was constantly preoccupied with estranging the child from his father and the real reason for that was not the reason presented by PERSON in the file , but , without doubt , one that had a religious subtext , as will be subsequently demonstrated . \u201d","Relying on the testimonial evidence and the parties\u2019 statements in the file ( including the second applicant \u2019s ) , the court held that the real reason for the parties\u2019 divorce was in fact the exclusion of GPE from the GPE \u2019s Witnesses Congregation on DATE :","\u201c ... the withdrawal of the defendant from the GPE \u2019s Witnesses prompted the applicant to firstly leave him , and then , after having waited for a while for the \u201c lost sheep to rejoin the flock \u201d , to finally divorce . \u201d","In this context ,","\u201c ... it is irrelevant that the defendant had behaved violently towards the applicant \u2013 as the main and essential reason for the parties\u2019 divorce was a religious one , namely the defendant \u2019s withdrawal from the sect of the Jehovah \u2019s Witnesses [ ... ] the violent behaviour of the applicant playing a subsidiary role . \u201d","The court further held that \u201c it is notorious that the members of the GPE \u2019s Witnesses sect marry only within the Congregation \u201d , and if , after getting married , CARDINAL of the members grows distant from the religion , and attempts to bring him back into the fold are unsuccessful , a divorce becomes even more necessary . Consequently , the court considered that PERSON had sought to take the following into consideration :","\u201c ... she has a duty to the child , but also to God , to protect the child from any influence that would jeopardise his soul and his spiritual growth , including influences from his father , if not from his father in the first place [ ... ]","[ I]t emerges that it was imperative that the defendant should be prevented from having any contact with the child . Although simple and clear , [ the achievement of ] this desired goal seemed to be undermined by an insurmountable obstacle \u2013 the law , which allows the parent without custody to continue to have personal contact with the child [ ... ]","[ T]he applicant , pragmatic , set herself a more modest goal , appreciated as legally possible \u2013 the limitation of the father \u2019s visiting rights by a court judgment [ issued ] in the preliminary stage [ of proceedings ] , followed by a second step , which was to attempt in any way or by any possible stratagem to completely forbid the defendant to enforce the judgment in respect of contact with the child . \u201d","The court further held as follows :","\u201c ... based on the evidence produced in the file , it can not be established with certainty whether the applicant has herself caused the injuries to the child attested in the medical reports , but such a possibility can not be completely excluded . \u201d","In supporting such a hypothesis , the court considered as follows :","\u201c ... it could be presumed that DATE , when GPE went to the applicant , [ armed ] with an enforceable judgment ( of CARDINAL DATE ) , intending to see his child , the applicant , taken by surprise , desperate , decided to resort to this extreme solution , telling herself , in order to comfort her own conscience , that a good purpose ( saving the soul of the child from \u201c Satan \u2019s claws \u201d ) justified the means ( the committal of - at least - one criminal act \u2013 defamatory denunciation against the defendant ) . \u201d","A second hypothesis explaining the minor \u2019s injuries was advanced by the court :","\u201c ... it is quite possible that the attested injury could have been the consequence of acute constipation on the part of the minor , and that the applicant simply took advantage of the circumstances and lodged a request to deprive the defendant of his parental rights . \u201d","In any case , the court seemed to favour the first hypothesis , relying on the chronology of the events which had allegedly occurred in DATE , as the first applicant had herself taken the initiative at that time to allow GPE to take the second applicant to his home for a longer period of time than that established in the judgment regulating his contact rights ( DATE ) . The first applicant \u2019s explanation that she had acted in that way because she had previously been threatened with death by GPE and because she had been advised by the police to comply with the court order allowing GPE contact rights was considered insincere .","The court concluded that the first applicant \u2019s initiative of giving the second applicant to his father was part of a bigger plan , arranging the set - up prepared for GPE","The polygraph test and the psychiatric report regarding the parties , as well as the psychological evaluation of the second applicant \u2019s answers to the court \u2019s questions , were never pursued :","\u201c ... after consultation , both the president of the court and the forensic expert reached the conclusion that the applicant could have been CARDINAL of the few persons who could \u201c defeat \u201d even the polygraph . \u201d","The president of the court consequently decided to try to make the applicant aware of her wrongdoing DATE in the event that the accusations against GPE were , indeed , unfounded \u2013 and he therefore invited the first applicant and the second applicant to a meeting at the court .","Following the meeting held at an unspecified date in DATE , the applicant , through her lawyer , imposed \u201c some unacceptable and unspeakable conditions \u201d to be fulfilled when performing the polygraph test . As this means of evidence was not , as such , provided for in NORP procedural legislation , the court \u201c was forced \u201d to conclude that the test could not be administered :","\u201c The court assesses these conditions as being a disguised and diplomatic refusal by the applicant to take the test , and such a refusal leads to the conclusion that it is highly possible that the applicant wrongly accused the defendant , GPE \u201d","DATE . As similar \u201c unreasonable and impossible conditions \u201d were formulated by the first applicant \u2019s lawyer for the evaluation of the second applicant \u2019s previous answers ( for instance , the child was to be recorded throughout so that the first applicant could , if necessary , express a point of view ) , the court felt obliged to acknowledge that the first applicant was resistant to such a means of acquiring evidence , and the evaluation was never pursued .","However , the court had several separate discussions with the second applicant , who , when questioned , stated , inter alia , as follows :","\u201c ... his father left the religious organisation before he was even born , because \u201c Satan had grabbed him \u201d ,","and that","\u201c ... he did not play much with the neighbour \u2019s children , as they were not \u201c witnesses \u201d , and therefore they were bad \u201d .","The court also held that :","\u201c The child asserted that he had been molested by his father , who had threatened to kill him if he revealed anything of the incident to his mother ( recorded statement ) .","[ ... ]","The child had indeed stated to the President of the court that he did not wish to see his father . \u201d","The second applicant \u2019s statements were not , however , taken into consideration by the court , as the court was convinced that all of them had in fact been induced by his mother , and did not reveal the child \u2019s real thoughts and wishes :","\u201c ... to any minor DATE , a parent or a teacher who is close to the child could easily inculcate any ideas ... \u201d","Consequently , the court found :","\u201c ... a child will immediately and without reserve accept that a situation has actually occurred as inculcated , even if he himself has no recollection of such a situation . \u201d","Relying on all the evidence and the presumptions drawn from the first applicant \u2019s refusal to allow new evidence ( reports ) to be collected , the court held as follows :","\u201c ... the court knows that the applicant never actually wanted the defendant to be able to see the child , and to this end she went as far as to disobey a previous court order ( the judgment of DATE ) .","It only remains for the prosecutor to remove any doubt as to this matter ( the criminal complaint lodged by the applicant ) , so that the applicant can then be brought before a court for resisting the enforcement of the judgment of DATE ...","[ ... ]","If a psychiatric report had ever been produced , the court would have found out whether the applicant was or was not suffering from a \u201c split personality syndrome \u201d [ ... ] because the applicant leaves the impression of having a double personality , between the CARDINAL parts of which there is no communication whatsoever ... \u201d","[ ... ]","Therefore , it is the defendant who seems more entitled to ask that the mother should be deprived of her parental rights . \u201d","PERSON challenged the above - mentioned decision , essentially alleging that : the court had used and interpreted the second applicant \u2019s allegations , although they had had never been transcribed or attached to the case file ; and the court had reasoned with a logic that had nothing to do with the case itself , but rather had been based on the judge \u2019s own apparent obsessions , and which , in any case , did not rely on the documentary evidence adduced ( medical reports , psychological evaluations of the child ) , which was all in support of the truth \u2013 that the second applicant had been sexually abused by his father . Documents attesting to the first applicant \u2019s sane state of mind had also been ignored , the court preferring to believe that the first applicant had been suffering from \u201c psychological deviations of a mystical nature \u201d . In summary , the court had obviously disapproved of the applicant and had \u201c treated her like a criminal because she was a member of the NORP sect of GPE \u2019s Witnesses \u201d , which organisation was in fact formally recognised in NORP law .","In its judgment given on DATE the court made a fresh assessment of all the evidence and tried to strike a balance between the importance of respecting the presumption of innocence favouring GPE , and the necessity of protecting the child \u2019s best interests .","In doing so , the court held that until the defendant was found guilty by a final decision , he had to be considered innocent , and therefore he could not be denied his right to have a personal relationship with his son .","However , it also determined the following :","\u201c ... the principle of the child \u2019s best interests must be kept in mind , especially as long as the possibility still exists that the child was molested by his father , an experience which would undoubtedly mark him psychologically for the rest of his life . \u201d","The court therefore considered that until the criminal proceedings were over , the second applicant would be better protected if his father was only allowed to see him every first and third DATE , TIME , at the office of the first applicant \u2019s legal representative . The first applicant was not to be present during these visits .","DATE . Both the first applicant and GPE appealed against the decision of DATE on points of law . PERSON criticised the assessment of evidence made by the court , as all documents and testimonial evidence had attested that it was necessary that the first applicant should be present when GPE spent time with the second applicant .","D.C. contested the judgment , alleging that the solution envisaged by the court had placed him in a position in which it was impossible to establish a personal relationship with his son ; that the court had also disregarded the presumption of innocence operating in his favour , particularly given that the prosecutor had decided on DATE not to indict him ; and that the court had misinterpreted the notion of \u201c best interests of the child \u201d , which implied , per se , the existence of a relationship between a child and his father .","On DATE PERSON legal representative adduced documentary evidence to the effect that the prosecutor \u2019s decision not to charge GPE had been contested before the courts and that a criminal trial was pending .","On DATE ORG dismissed the appeal on points of law formulated by the first applicant against ORG judgment . It allowed GPE \u2019s appeal , quashed the judgment given on appeal by ORG and dismissed PERSON appeal against the first - instance court \u2019s decision . In doing so , the court held as follows :","\u201c ... it did not emerge from any evidence in the file that the father had an aggressive attitude towards the child . It has been shown with certainty that the conflict had ignited between the CARDINAL parents and in the end it lead to their divorce .","The mother \u2019s bad faith was evident , having in mind the conclusions of the forensic report attesting to dissimulation on her part .","According to the testimonial and expert evidence available in the file , the rare meetings between father and son had been normal and the child was happy every time he met his father .","Moreover , the fact that the father was unable to see his son anymore following the child \u2019s reunification with his mother as a result of the mother \u2019s refusal to accept the enforcement of a final judgment allowing contact rights for the father can not be ignored either . The applicable legal provisions provide for the right of the divorced parent who has not been entrusted custody of the child to preserve personal ties with the child . \u201d","[ ... ]","\u201c ... when dismissing the appeal on points of law , the court also had in mind the prosecutor \u2019s decision of DATE not to institute criminal proceedings against GPE and the best interests of the child in respect of preserving personal ties with his father . \u201d","On DATE , PERSON lodged a criminal complaint against GPE , accusing him of having hit her , threatened to kill her and slandered her when coming out of a court hearing regarding his contact rights . The evidence produced in the file included CARDINAL documents attesting that GPE had already been fined for disturbing the public order at the child \u2019s kindergarten and at their home . ORG held that GPE had committed the unlawful acts alleged and sentenced him to CARDINAL months\u2019 imprisonment and fined him , penalties imposed by law . Under the civil head of the first applicant \u2019s claim , GPE was ordered to pay the appropriate pecuniary and non - pecuniary compensation to the first applicant . The decision was appealed against by GPE The appeal was dismissed on DATE by ORG . The court held that the sanctions imposed had been appropriate , as the victim had been shown to have been living in fear , the defendant \u2019s aggressive behaviour forcing her to repeatedly change her and the second applicant \u2019s domicile .","On DATE , PERSON sister , PERSON , lodged a criminal complaint against GPE , alleging that she had been hit and insulted by him . She submitted a medical certificate attesting to wounds and injuries requiring DATE to heal . The court found GPE guilty as charged , as he had \u201c proved to be highly destructive and aggressive , behaving very violently \u201d . GPE was sentenced to DATE of imprisonment and a criminal fine , both penalties being imposed by law . The victim was awarded pecuniary and non - pecuniary damage . An appeal by GPE was allowed by ORG on DATE , which sentenced him to CARDINAL months\u2019 imprisonment and a criminal fine , penalties imposed by law .","Following a criminal complaint lodged by the GPE \u2019s Witnesses Congregation on DATE , GPE was convicted of criminal damage by ORG and ordered to pay both a criminal fine ( amenda penal\u0103 ) and the civil damages claimed by the ORG . The judgment became final after an appeal lodged by GPE was dismissed on DATE .","The relevant provisions with respect to custody rights and family issues are to be found in ORG v. GPE ( I ) ( dec . ) , no . CARDINAL , CARDINAL DATE .","Section CARDINAL of the NORP LAW provides for the fundamental equality of spouses as regards parental rights and responsibilities and makes it clear that the interests of children are paramount .","The relevant provisions of LAW are worded as follows :","\u201c ( CARDINAL ) Injuries or any other violent actions which cause physical pain are subject to imprisonment of DATE or a fine .","[ ... ]","( CARDINAL ) A criminal case shall be initiated upon a complaint by the injured party . In the event that the unlawful act has been committed by a family member , the criminal case may be initiated upon the LOC own motion .","( CARDINAL ) Reconciliation by the parties removes criminal responsibility . \u201d","\u201c ( CARDINAL ) Sexual intercourse between persons of the same sex , carried out in public or having as its consequence public scandal , is punishable by imprisonment of DATE .","( CARDINAL ) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of DATE and prohibition of certain rights .","( CARDINAL ) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing a wish , or which is performed through coercion , is punishable by imprisonment of CARDINAL and prohibition of certain rights . \u201d","\u201c ( CARDINAL ) Acts of sexual perversion committed in public shall be punishable by imprisonment under stringent conditions of from DATE .","( CARDINAL ) Acts of sexual perversion involving a person under the age of CARDINAL shall be punished by imprisonment under stringent conditions of from DATE and the prohibition of certain rights .","( CARDINAL ) The same penalty shall also sanction acts of sexual perversion involving a person aged DATE if the act is committed by a guardian or curator or by a person charged with his or her supervision or care , by a physician , teacher or professor or educator in that role , or if the perpetrator has abused the victim \u2019s confidence or authority or influence over him or her . \u201d"],"violated_articles":["3","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","6","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83456","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2007,"docname":"CASE OF URBARSKA OBEC TRENCIANSKE BISKUPICE  v. SLOVAKIA","importance":2,"conclusion":"Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1 (transfer of ownership of the land and compulsory letting of the land);Just satisfaction reserved","judges":"Nicolas Bratza","text":["The applicant is a registered association of landowners ( pozemkov\u00e9 spolo\u010denstvo ) . It is a legal person with its registered office in LOC . It was entered in the official register with effect from DATE . PERSON , its president , lodged the application on the applicant 's behalf .","NORP Under the communist regime in GPE owners of land were in most cases obliged to put their land at the disposal of ORG - owned or cooperative farms . They formally remained owners of the land but in practice had no possibility of availing themselves of the property .","Some of the land in question was , for various reasons , not cultivated by the farms . It was the ORG policy to promote the use of such land for gardening . For that purpose allotment gardens ( z\u00e1hradkov\u00e9 osady ) were established , mainly in the vicinity of urban agglomerations . Individual plots of land were put at the disposal of persons belonging to GPE ORG ( Slovensk\u00fd zv\u00e4z z\u00e1hradk\u00e1rov ) , who were allowed to cultivate the land as a pastime activity for their individual needs .","In the context of GPE 's transition to a market - oriented economy following the fall of the communist regime , ORG adopted LAW CARDINAL ( for further details concerning the relevant law and practice see point LAW below ) , the purpose of which was to mitigate certain wrongs and to improve the care of agricultural and forest land .","Under LAW CARDINAL the plots of land on which allotment gardens had been established were not to be restored in natura to the original owner where ownership of the land had passed from the original owners to the ORG or a legal person . In such cases the original owners were entitled to compensation in kind or in pecuniary form . In this category of cases the legislator gave precedence to legal certainty for the existing users of the property , as the use of land for gardening was considered to be of greater public interest than restoring the land in natura to its original owners .","In the second category of cases , where the original owners maintained their ownership rights , albeit in name only ( nuda proprietas ) , LAW DATE established conditions enabling the owners to enjoy their property rights to a greater extent . In particular , it provided for the land to be let to the existing users , with a notice period expiring on the date when the temporary right to use the land came to an end . The tenants were , however , entitled to have the lease extended by DATE unless an agreement to the contrary was reached between the parties . The landowners were also entitled to request , within DATE of the coming into effect of the CARDINAL Act , the exchange of their property for a different plot of land owned by the ORG .","The above approach , permitting the owners to recover full possession of their land after the expiry of DATE for which the tenants had the right to have the lease extended , was modified with the adoption of LAW . As a result , owners have only a limited possibility of terminating the lease , mainly on the grounds of the tenants ' failure to comply with their obligations . The position of the tenants has been strengthened in that they are entitled to acquire ownership of the land they use for gardening . As to the owners , Act CARDINAL gives them the right to obtain either a different plot of land or pecuniary compensation .","In introducing LAW the legislator abandoned the philosophy of giving general priority to the rights of the owners of plots of land on allotment sites and took the position that it was in the general interest that the rights of persons who had been using the land for gardening should prevail .","The land owned by the predecessors of the members of the applicant association was put at the disposal of the agricultural cooperative in GPE . The owners ' formal title to the land remained unaffected , but they had no possibility of using it in practice .","On DATE the cooperative farm let the land , free of charge , to the GPE branch of ORG ovocin\u00e1rsky a z\u00e1hradk\u00e1rsky zv\u00e4z ) , as ORG was known at the time . The contract was to expire on DATE unless the parties reached an agreement on its extension . The tenant was to return the land to the lessor in its original state on termination of the lease .","On DATE the authorities approved the establishment of the \u201c GPE \u201d allotment gardens on the land in question , located in an industrial area on the outskirts of the town of PERSON . The project envisaged the apportionment of CARDINAL individual plots with a surface area of QUANTITY on which garden huts with a surface area of QUANTITY would be built . Re - cultivation of the land and communal facilities such as a road and a parking area , water supply and a fence at the allotment site 's boundaries were also planned .","The local branch of the gardening association subsequently concluded separate contracts with its members . Individual plots of land were thereby put at the latter 's disposal until DATE . The gardeners obtained a permit to build huts . Unless the lease contract was extended before DATE , the huts were to be entirely removed by the gardeners .","In DATE the present members of the applicant association inherited the title to the land where the GPE allotment gardens had been established .","On DATE the applicant association submitted a draft rent contract to a representative of the gardening association . On CARDINAL DATE the president of the PERSON allotments rejected the proposal as being unacceptable . Reference was made to negotiations about a DATE contract under Act CARDINAL pending a decision on the ownership of the land .","DATE the Tren\u010d\u00edn municipality charged the applicant CARDINAL,CARDINAL.CARDINAL NORP korunas ( SKK ) DATE in real property tax in respect of the land used by the gardeners . The tax was based on municipal regulations fixing the tax on gardens at SKK QUANTITY per square metre .","NORP The applicant submitted copies of bank statements indicating that GPE and ORG had paid to it , following the entry into force of Act CARDINAL , SKK CARDINAL as a yearly rent for the use of QUANTITY of land . That amount corresponds to FAC per square QUANTITY .","The applicant association unsuccessfully attempted to recover possession of the land . For that purpose it offered to compensate the gardeners for their existing property attached to the land .","On DATE the allotment gardeners initiated proceedings under LAW with a view to having the ownership of the land transferred to them .","On DATE ORG granted the request to start proceedings under LAW . ORG upheld this decision on DATE .","On DATE ORG dismissed an action which the vice - president of the applicant association and several other persons had lodged against the above decision of ORG . ORG found that the statutory requirements for bringing proceedings under sections CARDINAL et seq . of LAW had been met .","On DATE ORG in GPE made public the consolidation project pursuant to LAW CARDINAL . The president of the applicant association as well as all the other landowners whose address was known were notified of the project and informed that the data contained therein could be challenged within DATE .","The letter stated , in particular , that CARDINAL part of the applicant 's land ( QUANTITY ) had been valued at FAC per square metre and the other part ( QUANTITY ) at FAC per square metre . The major part of the land to be provided to the applicant in compensation was valued at SKK QUANTITY . The valuation had been carried out in accordance with the relevant administrative regulation . It was based on the classification of the land and its quality at the time when the tenants had acquired the right to use the land .","Some of the allotment gardeners submitted their comments on the project . The authorities approved the project on DATE .","On DATE a decision was issued to carry out the consolidation project . On DATE ORG in GPE dismissed the appeal lodged by the landowners .","The gardeners subsequently paid the purchase price for the QUANTITY of the applicant 's land to ORG . On DATE the applicant association received QUANTITY of different land in compensation . On DATE ORG in GPE approved the manner in which the consolidation project had been implemented . Its decision became final on DATE . On DATE the ownership of the relevant plots of land passed formally to the persons involved .","The zoning plan in respect of the area in which the GPE allotments are situated was approved in DATE . It indicates that the whole area forms part of a \u201c production and services zone \u201d . The zoning plan does not foresee that the land on the allotment site will be used for its current purpose in the future . At present an industrial park is in the process of being established in the vicinity of the allotments . The land within the allotment site has not been included in the project at this stage .","According to information in the land register , CARDINAL gardeners from the GPE allotments sold their plots to other persons DATE .","On DATE ORG in GPE , at the ORG 's request , explained that the PERSON allotment gardens in GPE were situated on land which , at the time of their establishment , had been derelict and had served as a municipal dump . The surface area of the applicant 's land which fell under LAW was QUANTITY . The surface area of the land which the applicant had received in compensation was smaller as it was arable land of higher quality and value . The document further indicated that the value of the applicant 's land taken into account in the consolidation proceedings had been the value on DATE when the allotments were established . The same regulation relating to the value of real property for administrative purposes had been applied in valuing the substitute land .","In DATE CARDINAL of the representatives of the applicant association sold to a company a plot of land in the vicinity of the GPE allotments for SKK CARDINAL per square metre . Prior to the sale , an expert had valued the land at SKK FAC . On DATE , the same company offered to buy different plots belonging to the applicant association in the area for SKK QUANTITY .","In DATE , at the ORG 's request , an expert established the value on DATE of both the land on the allotment site and the land which the applicant association had received in compensation . The expert calculated the value for general purposes of the land on the allotment site at SKK CARDINAL per square metre . The location of the land in an industrial zone increased its value considerably according to the opinion .","The same expert assessed the general value of the other plot of land at SKK CARDINAL.CARDINAL per square metre . The opinion stated that the substitute plot of land was situated between a motorway and a slip road and that a highvoltage line was erected above it . As a result , multiple restrictions applied to the use of the plot . No construction activity was envisaged in the area .","On DATE a different expert , at the ORG 's request , established the value in DATE of the applicant 's land at SKK CARDINAL , or QUANTITY . The expert calculated the value of the land on DATE at SKK CARDINAL , that is , CARDINAL per square metre . The gardeners ' investments ( huts , fence , wells , permanent vegetation , etc . ) were tentatively valued at SKK CARDINAL per square metre of land in DATE . The general value of the land including the gardeners ' investments was thus SKK QUANTITY . Finally , the expert assessed the general value in DATE of the arable land which the applicant association had obtained in compensation at SKK CARDINAL per square metre .","On DATE , at the applicant 's request , a private company assessed the value on DATE of the applicant 's land on the allotment site at FAC . That sum corresponds to approximately SKK QUANTITY . In a document dated DATE , at the applicant 's request , the company in question submitted comments on the above opinion of DATE . The view was expressed that the expert 's conclusion was probably not in line with local market prices . Plots of land similar to those used by the gardeners , including gardeners ' investments , were most frequently sold for CARDINAL and QUANTITY , whereas free plots of land outside allotments were being sold at FAC per square metre in that area . The use of the land by gardeners had rather a negative impact on its general value . Land in the area in question could be let out for CARDINAL per square metre yearly , its value for general purposes being between SKK CARDINAL and QUANTITY .","In a letter addressed to the Government 's Agent on DATE , ORG in PERSON , having examined the comments submitted by the above private company , expressed the view that the expert who had submitted the opinion on DATE had proceeded in accordance with the relevant law .","LAW CARDINAL ( PERSON o \u00faprave vlastn\u00edckych vz\u0165ahov k p\u00f4de a in\u00e9mu po\u013enohospod\u00e1rskemu majetku ) entered into force on DATE .","Section CARDINAL(CARDINAL ) provides that the purpose of land consolidation within specific areas is to establish integral economic units , in accordance with the needs of individual landowners and with their consent , in line with public needs as regards creation of the landscape , the environment and investment activities .","Paragraph CARDINAL of section CARDINAL provides that , as of the entry into force of the LAW and unless a different agreement is reached with the owner , the user of the land shall acquire tenancy rights in respect of it .","Under section CARDINAL ) , as in force until DATE , in cases where the land was used by individual gardeners on an allotment site the tenancy could not be terminated before expiry of the period for which the land had been originally put at the disposal of the users . Unless the parties otherwise agreed , the tenants had the right to have the tenancy extended by DATE . The rent and the purchase price in respect of such land were to be determined on the basis of the classification and quality of the land at the time when the gardeners ' right to use it had been established . The tenants had the right of pre - emption should the owner decide to sell the land .","Section CARDINAL(CARDINAL ) entitled the owners of land used by allotment gardeners to request , within DATE of the entry into force of the LAW , exchange of the land for a different plot of land owned by the ORG . The land to be proposed in exchange had to correspond , as regards both size and quality , to the original land and it was to be situated , where possible , in the same area .","LAW DATE ( PERSON o pozemkov\u00fdch \u00faprav\u00e1ch , usporiadan\u00ed pozemkov\u00e9ho vlastn\u00edctva , pozemkov\u00fdch \u00faradoch , pozemkovom fonde a o pozemkov\u00fdch spolo\u010denstv\u00e1ch ) entered into force on CARDINAL DATE .","Section CARDINAL provides that land consolidation consists of the rational arrangement of land ownership in a specific area in accordance with the requirements of the protection of the environment and the creation of ecologically stable territorial systems , the functions of agricultural land and economic and production criteria applicable to modern agriculture and forestry .","Under section CARDINAL ) , land consolidation pursues the aim , inter alia , of resolving issues and eliminating obstacles related to ownership and possession \/ occupancy of land which arose as a result of historical developments prior to the entry into force of the LAW .","Section CARDINAL(CARDINAL ) provides for the possibility of transferring the ownership of land on allotment sites to the tenants , subject to compensation of the landowners .","Act CARDINAL on the use of plots of land in allotment gardens and arrangements as regards their ownership ( PERSON o u\u017e\u00edvan\u00ed pozemkov v zriaden\u00fdch z\u00e1hradkov\u00fdch osad\u00e1ch a vyporiadan\u00ed vlastn\u00edctva k nim ) governs the use of land within allotment gardens and the transfer of ownership rights in respect of such land . It entered into force on DATE and took effect on DATE . It repealed section CARDINAL ) of LAW DATE .","The government explanatory report of DATE which was submitted to ORG together with the draft Act indicates that CARDINAL hectares of land ( MONEY of all agricultural land in GPE ) were used by CARDINAL individual gardeners on CARDINAL allotment sites at that time . Gardening served as relaxation and provided a partial supply of fruit and vegetables to CARDINAL town dwellers in GPE .","According to the report , there was a public interest in land consolidation in GPE . In that context , it was in the general interest to transfer the ownership of land in allotment gardens to the existing tenants as it would provide greater legal certainty for both the gardeners and the owners .","The tenants would obtain ownership of the land which they used and would not risk losing the surplus value which they had added to the land through their work and investments . As to the owners , they were likely to continue to have their rights to avail themselves of the property restricted for a considerable period of time ; the allocation of appropriate alternative plots of land to them would resolve that problem . According to the explanatory report , compensation based on the surface area and quality of the land at the time when the owner had lost the possibility of using the land was appropriate . Pecuniary compensation was to be paid in exceptional cases only where the owner either asked for it or refused compensation in natura .","Under LAW ) , the aims of the LAW are ( i ) regulation of the use of allotment land and ( ii ) definition of the procedure to be followed with a view to land consolidation on allotment sites under a special law ( reference is made to section CARDINAL(CARDINAL ) of LAW DATE ) .","Section CARDINAL(CARDINAL ) of Act MONEY provides that , unless the owner of the land and the gardeners concluded a tenancy agreement earlier under a special regulation , a tenancy comes into being between them as of the moment when the LAW takes effect .","Paragraph CARDINAL of section CARDINAL enumerates the conditions under which the owner of the land is entitled to terminate the tenancy . Such entitlement is limited to cases where the tenant ( i ) is not using the land with due care , ( ii ) has constructed a building on the plot without a permit , ( iii ) has sub - let the land to a third person without the owner 's consent or ( iv ) has failed to pay the rent , despite a prior warning , by DATE following DATE for which the rent is due . An owner who puts an end to a lease is obliged to compensate the tenant for buildings and permanent vegetation as well as for the tenant 's share in the equipment jointly used by the gardeners within the allotments ( section CARDINAL(CARDINAL ) ) .","Pursuant to section CARDINAL(CARDINAL ) , the yearly rent for the use of plots of land in allotment gardens is MONEY of their value as established under section CARDINAL(CARDINAL - CARDINAL ) of Regulation CARDINAL\/CARDINAL of ORG , the minimum sum being SKK CARDINAL.CARDINAL per square metre . This provision does not affect the amount of rent which owners and tenants may have agreed under a special law at an earlier date .","The main purpose of Act CARDINAL is to permit the transfer of ownership of the land to tenants of allotments where the majority of tenants so request and where the owners have refused to sell the land at a price not below the level of compensation provided for under LAW . In such cases proceedings are brought , in the course of which a preliminary inventory of the land is prepared . The inventory can be challenged within DATE of its publication . Once the proceedings have started , the competent district office invites ORG to select ORG plots of lands to be offered as compensation to the owners of the land situated on the allotment sites ( sections CARDINAL and CARDINAL) .","Section CARDINAL(CARDINAL ) provides that , prior to approval of such a land consolidation project , the district office involved has to ask the owners to inform it , within DATE , whether they wish to be allocated a different plot of land of corresponding surface and quality in the same area or to receive financial compensation for their land . Where the allotments are situated in a built - up area of a municipality , the owner can claim a different plot of land in a comparable area . Where the owners do not indicate their preference within DATE , they are to receive financial compensation ( section CARDINAL(CARDINAL ) ) .","Section CARDINAL governs financial compensation for plots of land situated in allotments . It is to be determined on the basis of the quality and nature of the land at the time when the gardeners ' right to use it was established . LAW further provides for an increase or decrease in compensation according to the location of the land and possible restrictions on its use .","A consolidation project comprises , inter alia , a recapitulation of the proceedings , a list of tenants with indication of the land they use and its value , a list of owners who have requested financial compensation and its amount and a proposal as regards the situation of the substitute land to be provided to the owners ( section CARDINAL ) .","Under LAW , the district office must publish the consolidation project under LAW and notify the persons concerned thereof . If no objections are filed , the district office must approve the project . If the district office dismisses objections to the data included in the project , a regional administrative authority must re - examine them . Decisions on approval of land consolidation projects can be reviewed by an administrative court .","Sections CARDINAL govern the implementation of land consolidation projects which have been approved . Under section PERSON ) , the entry in the land register must indicate that the new owner of the land on the allotment site is obliged to use it for the same purpose as previously until a different use has been approved .","Section CARDINAL(CARDINAL ) provided that , where the tenants did not pay the compensation due , the ownership of the land was transferred to ORG . The latter could not use the land but could let it to the person who used it . This provision ceased to have effect after ORG declared it contrary to LAW .","Regulation CARDINAL\/CARDINAL of ORG of DATE , as amended , governed determination of the price of buildings and plots of land and compensation for the use of land . It concerned the value of property for administrative purposes . It was repealed on DATE and replaced by regulations on the determination of the general value of real property .","Section CARDINAL(CARDINAL - CARDINAL ) provides that the price of plots of land registered as arable land , orchards , LOC , meadows or pastures is to be fixed in accordance with FAC to the Regulation . In the case of meadows and pastures the price is MONEY of the price indicated in Annex CARDINAL . The annex provides for prices per square metre ranging from MONEY to SKK CARDINAL according to the quality and classification of the land .","Pursuant to section CARDINAL(CARDINAL ) , real property tax is payable by the owner as entered in the land register . Where the owner has let another person use the land , the tenant is obliged to pay the tax where the lease has lasted or is to DATE at least , and subject to the registration of the tenant in the land register .","CARDINAL members of ORG and the Prosecutor General brought proceedings before ORG claiming that several provisions of LAW were contrary to LAW and LAW . CARDINAL . In particular , the members of ORG relied on the ORG 's case - law ( PERSON and Others v. GPE , judgment of DATE , Series A no . CARDINAL , \u00a7 DATE , and GPE and PERSON v. GPE , judgment of DATE , Series A no . CARDINAL , \u00a7 \u00a7 CARDINAL and DATE ) , arguing that there existed no genuine public interest in the interference with the landowners ' rights and that the compensation which the landowners were to receive under the relevant provisions of Act CARDINAL was not appropriate .","DATE . Both petitions were examined jointly at a plenary meeting of ORG .","On CARDINAL DATE ORG concluded that section CARDINAL(CARDINAL ) of LAW was contrary to , inter alia , the constitutional protection of ownership rights . It dismissed the remainder of the submissions .","ORG noted that the regulation of relations in respect of land used for gardening in allotments mainly concerned , as in the case of restitution laws , the undoing or mitigation of the wrongs which had occurred in the past when the principle of the rule of law had not been respected . The legislator had a certain margin of appreciation when deciding on the relevant issues , provided the constitutional guarantees were upheld .","With regard to the compulsory letting of the land to the gardeners under LAW CARDINAL\/CARDINAL , it was merely a temporary measure pending the transfer of its ownership to the gardeners in accordance with the provision of that LAW . It pursued the aim of providing the users with legal certainty and of ensuring optimal use of the land in question with due regard to the requirements of the landscape and the environment . It was as such in the public interest . The measure was limited in duration and it was not disproportionate as it filled the gap which arose following the quashing of section GPE ) of LAW DATE . ORG , by obliging the owners to let the land to the gardeners , had not overstepped its margin of appreciation and had struck a fair balance between the general interest and the protection of individuals ' rights . Section CARDINAL was therefore not contrary to LAW or its constitutional equivalent .","As to the argument that the rent payable under LAW CARDINAL was disproportionately low , ORG held that LAW No . CARDINAL imposed on the Contracting Parties to the Convention no specific obligations as regards compensation for the use of property in the general interest . There was no appearance that the relevant provision was unconstitutional .","The plaintiffs also argued that the transfer of ownership of the land to the gardeners under sections CARDINAL et seq . of Act MONEY was not in the general interest as it restricted the rights of the owners to the benefit of a different group of individuals without any relevant justification .","In ORG view , that transfer of ownership was to be seen in the broader context of land consolidation , the purpose of which was set out in section CARDINAL of LAW DATE and in section CARDINAL(a ) of LAW DATE . Consolidation pursued the aim of setting up integrated land entities in accordance with the needs of individual owners , with their consent , and with due regard to general requirements as regards the creation of the landscape , the environment and investment development . Land consolidation was also justified with a view to adjusting the existing relations between owners and users and eliminating any obstacles which had arisen as a result of past developments . Sections CARDINAL et seq . of Act CARDINAL in no way affected the above general interest in land consolidation .","The plaintiffs further alleged that the compensation for land under LAW CARDINAL was inappropriate as it was substantially lower than the market value of the land .","DATE . ORG noted that the owners had the choice between alternative plots of land and financial compensation . The gardeners could not be held liable and they should not be penalised for the fact that the owners had been deprived of the possibility of enjoying their property under a regime which had disregarded democratic principles . Furthermore , the users , by cultivating the land , had substantially increased its value . ORG therefore accepted as just the relevant provisions under which compensation to the owners should be based on the value of the property at the time when the gardeners had started using it . The compensation under LAW was therefore appropriate and compatible with the requirements of LAW No . CARDINAL .","Finally , ORG found that section CARDINAL(CARDINAL ) of LAW was unconstitutional as there was no justifiable public interest in transferring ownership of land to the ORG in cases where the user had failed to pay the amount due .","In a separate opinion CARDINAL judges stated that the compulsory letting under LAW CARDINAL was unconstitutional and that the compensation payable under LAW was not appropriate as it was based on the value of the property at the time when the gardeners had acquired the right to use the land .","The dissenting judges expressed the view that the parties to proceedings under LAW were in an unequal position . In particular , the applicable law did not permit the administrative authorities or courts called upon to review their decisions to balance the interests of the persons involved , assess whether the transfer of ownership was justified or examine the question whether the compensation provided to the owner was appropriate .","In accordance with its established practice , the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules ( see , for example , I. \u00daS CARDINAL\/CARDINAL , decision of DATE ; II . \u00daS CARDINAL\/CARDINAL , decision of DATE ; NORP . \u00daS CARDINAL\/CARDINAL , decision of DATE ; or PERSON . \u00daS CARDINAL , decision of CARDINAL DATE ) . Such proceedings can be brought only by the persons enumerated in LAW including , inter alia , onefifth of the members of ORG and ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84608","languageisocode":"ENG","respondent":"AZE","branch":"ADMISSIBILITY","date":2008,"docname":"RAHIMOV v. AZERBAIJAN","importance":4,"conclusion":"Inadmissible","judges":"Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens","text":["The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr C. PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was the chairman of ORG ( \u201c the NORP \u201d ) .","In DATE the ORG concluded a construction contract with ORG of LOC of GPE ( \u201c the ORG \u201d ) according to which the ORG agreed to repair the heating system in CARDINAL of the district \u2019s public schools . In DATE a similar contract was concluded with ORG of GPE ( \u201c the NORP Education Department \u201d ) .","Although the ORG had completed its contract obligations , it did not receive any payments under either contract .","The ORG , represented by the applicant , lodged an action against ORG . By a judgment of CARDINAL DATE ORG ordered ORG to pay the Cooperative CARDINAL NORP manats ( NORP ) .","Subsequently , on an unspecified date ORG revised its judgment and reduced the awarded amount to GPE .","No appeal was filed against the judgment and it entered into force . In DATE ORG issued a writ of execution of the judgment .","Following a number of complaints by the applicant to the enforcement authorities , it appears that on an unspecified date in DATE the judgment was partially executed and LAW of the judgment amount paid to the ORG . However , despite the applicant \u2019s continuous complaints to ORG ( NORP rayon PERSON v\u0259 ORG \u015f\u00f6b\u0259si ; \u201c ORG \u201d ) , the remainder of the judgment award , amounting to CARDINAL , was not paid .","The ORG lodged a new action against ORG and ORG complaining about non - execution of the judgment . On DATE ORG ordered the defendants to comply with the judgment of DATE . On DATE ORG quashed this decision , finding that the complaints concerning non - enforcement of final judgments should be directed against ORG and not the original defendant .","The ORG lodged another action asking the court for \u201c indexation \u201d of the judgment amount due to inflation . On DATE ORG No . CARDINAL granted this request . It found that , taking into account the inflation , the remainder of the amount to be paid by ORG pursuant to the judgment of DATE constituted ORG .","The ORG , again represented by the applicant , lodged a separate action against ORG . By a judgment of CARDINAL DATE ORG ordered ORG to pay the ORG AZM CARDINAL .","Although the applicant sent numerous inquiries to ORG within DATE , the judgment was not enforced .","The ORG lodged a new action against ORG and ORG complaining about non - execution of the judgment . On DATE the ORG ordered the defendants to comply with the judgment of DATE . On CARDINAL DATE ORG upheld this decision .","The ORG lodged another action asking the court for \u201c indexation \u201d of the judgment award due to inflation . On DATE ORG No . CARDINAL granted this request . It found that , taking into account the inflation , the amount to be paid by ORG pursuant to the judgment of DATE constituted NORP CARDINAL .","According to the Government the delayed execution of the judgments of DATE and DATE was due to the fact that the ORG \u2019s bank account was closed DATE for unspecified reasons .","On DATE the outstanding amounts awarded by both judgments were transferred to an alternative bank account as directed by the applicant .","By a letter of DATE addressed to ORG , the applicant acknowledged the receipt of the outstanding amounts and noted that he had no further complaints before the domestic authorities concerning the execution of the judgments of CARDINAL DATE and DATE .","In accordance with LAW of DATE a ORG is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions ( Article CARDINAL ) . A cooperative can be established by CARDINAL members ( Article CARDINAL - CARDINAL.CARDINAL ) .","A \u201c full \u201d member , in essence , enjoys rights similar to those of founders or shareholders of other types of legal entities , including rights to participate in the management and to receive a share of the cooperative \u2019s profits ( Articles CARDINAL and CARDINAL in fine ) . An \u201c associative \u201d member \u2019s rights to participate in the management are limited ( LAW . The cooperative \u2019s profits are distributed to the members in accordance with their shares , as well as the extent of their participation in the function of the cooperative , by way of contributing personal labour or otherwise ( LAW .","The supreme management body of a cooperative is the general meeting of members . Each member has CARDINAL vote at the general meeting regardless of the size of his or her contribution to the cooperative \u2019s fund ( Articles CARDINAL and CARDINAL ) .","The executive bodies of a cooperative are a management board and\/or a chairman . A cooperative \u2019s chairman may be elected only from among the cooperative \u2019s members . The chairman is elected for a specified term at the general meeting of members and has a right to represent the cooperative ( Articles CARDINAL and CARDINAL ) .","Article CARDINAL of LAW DATE provides that legal entities can be represented before courts by their bodies , acting within the scope of powers conferred on them by law , regulations or articles of incorporation of the legal entity , or by representatives acting on the basis of a power of attorney ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72136","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2005,"docname":"BARROW and Others v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE - on - Trent .","His wife died on DATE .","On DATE , the applicant applied to ORG for the payment of social security benefits . He applied for benefits equivalent to those to which a widow , whose husband had died in similar circumstances to those of his wife , would have been entitled under ORG DATE ( \u201c the DATE LAW ) . He was informed that ORG was unable to accept his application as a valid claim because the regulations governing the payment of widows ' benefits were specific to women . The claim was finally rejected by ORG on DATE .","The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","His wife died on DATE , leaving the applicant and his son , born on DATE .","On DATE , the applicant applied for benefits equivalent to those to which a widow , whose husband had died in similar circumstances to those of his wife , would have been entitled under ORG DATE ( \u201c the DATE LAW ) . He was informed on DATE that ORG was unable to accept his application as a valid claim because the regulations governing the payment of widows ' benefits were specific to women . His appeal was dismissed by ORG on DATE .","The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , solicitors .","His wife died on DATE , leaving CARDINAL children DATE . Shortly after her death , the applicant contacted ORG by telephone to see whether any widowers ' benefits would be available . He was informed that there were no benefits available to him because he was a man .","He subsequently made a claim for widowers ' benefits equivalent to those to which a widow , whose husband had died in similar circumstances to those of his wife , would have been entitled under ORG DATE ( \u201c the DATE LAW ) . He was informed on DATE that ORG was unable to accept his application as a valid claim because the regulations governing the payment of widows ' benefits were specific to women . His appeal to ORG was rejected on DATE .","The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","His wife died on DATE . His claim for widow 's benefit was rejected by ORG on DATE on the ground that , as a man , he was not eligible for the benefits . His appeals to ORG were refused in DATE respectively .","The domestic law relevant to these applications is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69025","languageisocode":"ENG","respondent":"EST","branch":"ADMISSIBILITY","date":2005,"docname":"PODER AND OTHERS v. ESTONIA","importance":1,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE respectively . On DATE Mr PERSON died and his daughter , PERSON , pursued the application on his behalf . PERSON and PERSON live in GPE . PERSON lives in GPE . The applicants were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , Director of ORG of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE Mr PERSON lodged an application with ORG ( PERSON ) for restitution of his family 's property , which had been nationalised in DATE and allocated by the authorities to a third person free of charge since DATE . The property consisted of farmland , a house and farm buildings .","By a decision of ORG for the Return and Compensation of ORG ( NORP v\u00f5\u00f5randatud vara tagastamise ja kompenseerimise GPE maakonna komisjon ) of CARDINAL DATE , all CARDINAL applicants were recognised as the persons entitled to the nationalised property under the property reform legislation .","On DATE ORG ( \u00d5ru Vallavalitus ) , relying on section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW ( Omandireformi aluste seadus ) , decided not to return the property to the applicants on the ground that it had lost its former distinct character ( that is , the form or size of the property , as assessed according to the criteria established by law , had changed significantly ) . On DATE ORG decided to award the applicants compensation in respect of the property .","The applicants appealed against both of these decisions to ORG ( Valga Maakohus ) .","By a judgment of DATE , ORG declared the decision of ORG of DATE unlawful , finding that the condition of the property had been incorrectly assessed . The judgment was upheld by ORG ( GPE ) on DATE . The courts left unexamined the applicants ' complaint concerning the decision on compensation of CARDINAL DATE as the complaint did not meet the formal requirements .","On DATE the ORG gave a new decision refusing to return the property to the applicants . That decision was also declared unlawful , mainly for lack of reasoning , by ORG and ORG on DATE and DATE respectively . The courts also declared unlawful the compensation decision of DATE , as it had been made on the basis of the unlawful decision of DATE to refuse restitution .","By a decision of DATE , ORG refused to return the nationalised property to the applicants on the ground that the property was in the possession of a third person who had acquired it in good faith . In particular , that person had not persecuted the applicants or expropriated their property . The District A dministration based its decision on an amended version of section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW , which had come into force on DATE .","The applicants lodged a complaint against the decision submitting , inter alia , that , under section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW in the version in force until DATE , a person who had obtained expropriated property free of charge could not be regarded as the bona fide owner of the property . They had lodged an application for restitution at the time when that LAW was in force and therefore had a legitimate expectation that their application would be decided according to that LAW .","By a judgment of DATE , ORG ( ORG ) dismissed the applicants ' complaint . The judgment was upheld by ORG on DATE . ORG ( NORP ) , which initially refused the applicants leave to lodge an appeal with it , subsequently granted them leave and , on DATE , rendered a judgment upholding ORG judgment .","In its judgment ORG reiterated that one of the purposes of the property reform was to undo the injustices caused by violations of property rights in the past . At the same time , the restitution of property or the payment of compensation to former owners should not prejudice the lawful interests of other persons or cause new injustices . The deprivation of property of new owners who had received it free of charge would create such an injustice . Expropriated property had often been preserved thanks to the efforts of new owners . The provisions of section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW , as they had existed until DATE , were unjust and offered no protection to new owners of unlawfully expropriated property . The applicants could not reasonably expect that the law would not change . Their expectation that their restitution claim would be decided in accordance with the former law did not outweigh the right of the current owner to the protection of his property and his legitimate expectation that he would not be deprived of his lawfully obtained possessions . The applicants were , however , entitled to claim compensation for property which could not be returned to them .","In the meantime , on DATE ORG decided to award compensation to the applicants in respect of the nationalised property in the form of \u201c privatisation vouchers \u201d to the nominal value of CARDINAL NORP kroons ( EEK ) for Mr PERSON and to the nominal value of EEK CARDINAL each for PERSON and PERSON . The Government informed the ORG that the applicants had received the compensation . There is no indication that the applicants appealed against the size of the award .","B. Relevant domestic law","ORG came into force in DATE . It subsequently underwent various substantial amendments . Section CARDINAL ) of the LAW in its original wording provided that unlawfully expropriated property was not subject to return if","\u201c the property [ was ] in the possession of a natural person who [ had ] acquired it in good faith \u201d .","Section CARDINAL(CARDINAL)(CARDINAL ) of the LAW as in force from DATE to DATE provided that unlawfully expropriated property was not subject to return if","\u201c the property [ was ] in the possession of a natural person who [ had ] acquired it in good faith ; a person who [ had ] obtained the property free of charge by a decision of a ORG authority or who [ had ] participated in the persecution of the owner of the property or in its unlawful expropriation [ could ] not be regarded as a bona fide owner \u201d .","On DATE a further relevant amendment to the LAW came into force . Under the new text of section CARDINAL(CARDINAL)(CARDINAL ) , unlawfully expropriated property was not subject to return if","\u201c the property [ was ] in the possession of a natural person who [ had ] acquired it in good faith ; above all , a person who [ had ] participated in the persecution of the owner of the property or in its unlawful expropriation [ could ] not be regarded as a bona fide owner \u201d .","Section CARDINAL(CARDINAL ) of ORG LAW stipulated that if unlawfully expropriated property could not be returned on the basis of CARDINAL of the LAW , the ORG would pay compensation in respect of the property according to the procedure provided for by law .","In accordance with the Regulation on the procedure for the restoration of unlawfully expropriated property enacted by the government on DATE , as amended , the restitution of property rights was carried out in CARDINAL stages : ( CARDINAL ) the establishment of the unlawfulness of the expropriation and the determination of the persons entitled to restitution of their property rights ; ( CARDINAL ) the decision as to whether the property was to be returned ; ( CARDINAL ) the transfer of the property to the eligible persons . The ORG on the procedure for determining compensation in respect of unlawfully expropriated property enacted by the government on DATE , as amended , provided that the compensation procedure was initiated where the eligible person had requested compensation , the property in question had been destroyed , or the law did not provide for the return of the property concerned .","C. The NORP reservation in respect of LAW No . CARDINAL","The instrument of ratification of the Convention deposited by the NORP government on DATE contains the following reservation :","\u201c In accordance with LAW , GPE declares that the provisions of LAW shall not apply to the laws on property reform which regulate the restoration or compensation of property nationalised , confiscated , requisitioned , collectivised or otherwise unlawfully expropriated during the period of NORP annexation ; the restructuring of collectivised agriculture and privatisation of state owned property . The reservation concerns LAW ( published in PERSON [ Official Gazette ] DATE , CARDINAL , CARDINAL ; ORG I DATE , CARDINAL , CARDINAL ; DATE , CARDINAL ; DATE , CARDINAL ; CARDINAL , CARDINAL ) , LAW ( DATE , CARDINAL , CARDINAL ; ORG I DATE , CARDINAL , CARDINAL ) , LAW ( DATE , CARDINAL , CARDINAL ; CARDINAL , CARDINAL ; ORG I DATE , DATE , FAC ) , LAW ( RT I DATE , CARDINAL , CARDINAL ; DATE , DATE , CARDINAL ; CARDINAL , DATE ; CARDINAL , DATE ; DATE , CARDINAL , CARDINAL ; DATE , CARDINAL ; CARDINAL , CARDINAL ) , ORG ( RT I DATE , CARDINAL , CARDINAL ; DATE , DATE , CARDINAL ; CARDINAL , CARDINAL ; DATE , CARDINAL , DATE ) , ORG ( ORG , CARDINAL , CARDINAL ; DATE , CARDINAL , CARDINAL ; CARDINAL , CARDINAL ; DATE , CARDINAL ; DATE , CARDINAL , CARDINAL ) , ORG ( RT I DATE , CARDINAL , ORG ) and their wording being in force at the moment LAW entered into force . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5489","languageisocode":"ENG","respondent":"ISL","branch":"ADMISSIBILITY","date":2000,"docname":"KONRADSSON v. ICELAND","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is an NORP citizen , born in DATE and resident in GPE . Before the ORG he is represented by Mr PERSON , an advocate practising in GPE . The respondent Government are represented by their Agent , Mr ORG , Director ORG and ORG .","The facts of the case , as described mainly in the domestic courts\u2019 judgments , may be summarised as follows .","On DATE , the applicant drove his car along a country road up a slope , and met CARDINAL lorries travelling at short intervals in the opposite direction . As the applicant met the third lorry he lost control of his car which went off the road , which went unnoticed by the lorry drivers . The car went over a patch of stony gravel , came to a halt at a fence and was damaged . His head was knocked against the windscreen ; he lost consciousness and was taken to hospital .","The applicant instituted proceedings against the company that owned the lorries and its insurance company before ORG and requested compensation for the damage to his car and the loss of its use , claiming that the third lorry was being driven unduly fast and very carelessly . According to the applicant when he noticed the lorries he reduced his speed from QUANTITY to QUANTITY . The third lorry drove so far over to the applicant \u2019s side of the road that the applicant had been forced to the edge and off the road . The applicant had stated that he drove on radial tyres of the so - called DATE type .","The respondents disputed that the accident could be attributed to any facts for which they were responsible and challenged the applicant \u2019s assertion that the driver of the third lorry had failed to yield to the side and was travelling at high speed . While the lorry drivers had been travelling as slowly and carefully as possible under the circumstances , the applicant had himself acknowledged in the police reports that he had been travelling at QUANTITY . There was no evidence as to the position on the road of the respective vehicles when they met . In any event the applicant was in part responsible , as he had driven with summer tyres at a considerable speed on a slippery road .","According to the applicant , during the proceedings before ORG he had submitted certain evidence , mainly police reports , in support of his statement of the facts of the case , which counsel for the defendant had stated was a correct presentation of the facts . Moreover , counsel for each party had the following declaration recorded :","\u201c That they are in agreement to base their case on the statements given by witnesses as if they had been confirmed in court , should witnesses be unable to appear before it . \u201d","By judgment of DATE ORG ordered the respondents to pay the applicant approximately ORG CARDINAL in compensation plus an amount for legal costs .","In its judgment ORG observed that , while the applicant was driving up the slope at PERSON , he met CARDINAL lorries driving in succession down the slope in a southerly direction . According to the statements of witness PERSON , who was driving at a short distance in front of the applicant \u2019s car , and of witness PERSON , who observed the events at a distance of QUANTITY , the vehicles proceeded fast , in spite of the fact that the road was slippery and narrow compared to their size . The drawing made by NORP police indicated that the road was QUANTITY wide and flanked by gravel shoulders QUANTITY wide at the point where the applicant \u2019s car went off , while the rearmost lorry was QUANTITY wide . ORG further observed that the road was covered with a thin layer of snow and was slippery . The driver of the leading lorry stated that its speed was QUANTITY , the driver of the second lorry stated that its speed had been QUANTITY . Given the conditions at the scene and , in particular , the third lorry \u2019s width , its speed was deemed excessive . Considering witness PERSON \u2019s statement that the lorry had not been swung to the side to make room for the applicant \u2019s car and police officer PERSON \u2019s report to the effect that no evidence had been found to the contrary , ORG upheld the applicant \u2019s assertion that its driver had failed to observe the relevant provisions of FAC . It found it not established that the applicant \u2019s car had been inadequately equipped . Nor could he be considered to have driven with such lack of care as to make him partly responsible for the accident .","The company that owned the lorries and the insurance company appealed to ORG .","By judgment of CARDINAL DATE ORG found for the appellant companies .","In reaching this conclusion ORG observed that the facts of the case were not adequately described in the ORG judgment . It considered the various items of evidence in the case , notably the initial report of ORG , which quoted statements by the applicant and witnesses PERSON and PERSON , subsequent witness statements taken by the police from PERSON and PERSON and the latter \u2019s testimony to ORG , statements taken by the police in DATE from the CARDINAL lorry drivers , and a police report of DATE . ORG noted , inter alia , the following .","In the initial police report it was indicated that the applicant \u2019s car was equipped with DATE tyres but that , according to his own statement he had been driving with radial tyres . The driver of the rearmost lorry had stated that he had proceeded as closely to the road edge as possible and that the applicant had done the same , that the estimated speed of the lorries was QUANTITY and that the slippery condition of the road was the only factor requiring caution . None of the lorry drivers had noticed the applicant \u2019s mishap . DATE after the accident witnesses PERSON and PERSON had made statements to the effect that they were unable to say where on the road the rearmost lorry had been while meeting the applicant \u2019s car , whereas in later statements they had indicated that the lorries proceeded on the middle of the road . DATE after the event witness PERSON had stated that the lorries proceeded at high speed , while witness PERSON had not , until ORG hearing , commented on the speed but without being able to do so with any accuracy . In the view of ORG , the above witnesses were in a poor position to observe clearly the events leading to the accident and exactly how the danger had developed ; this reduced the evidential value of their statements .","Moreover , ORG noted a number of deficiencies in the initial police report ( of DATE ) and the drawing of the scene appended to it , including on such matters as tyre tracks , the absence of a scale , an indication of the time of the police \u2019s arrival at the scene and , in particular , the road dimensions . According to the road measurements reproduced in the police report , the width of the permanent road surface was QUANTITY , and the width of each road shoulder QUANTITY , making a total width of QUANTITY . The lorries had been QUANTITY wide , and the applicant \u2019s car QUANTITY wide . According to the drawing the vehicles thus had a surplus space of QUANTITY within which to pass . This made it clear to ORG that the road dimensions indicated could not be accurate and that the drawing had little evidential value as regards the circumstances at the scene .","ORG concluded that the applicant should have been aware that it would be difficult and risky to pass so large and voluminous vehicles on the slope , as the road could be assumed to have been narrow and his car was not perfectly equipped for DATE driving . He should have stopped his car as close to the edge as possible and waited there until the lorries had passed , as he clearly was in a better position to yield and make room on the road . Instead he drove without hesitation up the slope , regardless of success or failure . By this conduct he had obviously endangered his own car and safety . He had failed to establish that the lorries proceeded too fast or unduly on to his side of the road and that the accident could be traced to any other cause than his own inadvertence .","On DATE the applicant requested ORG to reopen the proceedings , which the latter refused on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-72345","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2006,"docname":"WIACEK v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was a party to civil proceedings concerning a claim for division of marital co - ownership .","On DATE a hearing took place before the FAC ( S\u0105d Rejonowy ) . The judge heard the applicant and dictated his replies to the court clerk , who was taking TIME of the hearing . As the judge \u2019s instructions to the clerk differed considerably from what the applicant was saying and as the judge repeatedly interrupted the applicant in his statements , the applicant expressed his objections . However , this was to no avail . Eventually the applicant said :","\u201c I should reply , not the court \u201d .","The judge became angry and warned the applicant that a fine could be imposed on him .","The records of the hearing first relate the applicant \u2019s statements concerning the subject matter of the case . Then it reads as follows :","\u201c The presiding judge warned the [ applicant ] not to make any comments to the court and warned him that a fine would be imposed on him if he continued to do so .","Thereupon the [ applicant ] says : \u201c If it is necessary , I will pay \u201d .","The court holds that a fine of ORG CARDINAL be imposed on the [ applicant ] . \u201c","On DATE the applicant appealed to the PERSON ORG ( PERSON ) against the imposition of the fine . On DATE the FAC ( FAC ) , invoking LAW of DATE , rejected the applicant \u2019s appeal , considering that the domestic law did not provide for a possibility to appeal against such a decision . On DATE the applicant lodged an interim appeal against this decision . On DATE ORG rejected the applicant \u2019s appeal as lodged outside the prescribed time limit . On DATE the applicant applied for leave to file an appeal out of time . His motion was dismissed on DATE .","On DATE the applicant lodged a request with the Ostrowiec \u015awi\u0119tokrzyski ORG to rectify TIME of the hearing of DATE . He submitted that during that hearing he had said , reacting to the court \u2019s interruptions and interference with the contents of his statements :","\u201c I should reply , not the court . \u201d","This statement had not been recorded in TIME of the hearing . Consequently , the actual circumstances in which the presiding judge decided to impose a fine on the applicant were not reflected in TIME , as required by LAW .","On DATE the court refused to rectify the minutes . The court considered it to be sufficient that the court \u2019s reaction to the applicant \u2019s conduct was reflected in TIME of the hearing , and that therefore TIME were exact .","On DATE the applicant appealed against this decision . He reiterated that TIME of the hearing did not reflect the actual conduct of the hearing in that his statement was not noted . As a result , they contained the presiding judge \u2019s warning about the imposition of a fine , but no information as to the reason which had prompted this reaction on the part of the judge . The applicant stated that this was illogical . He further stressed that he had not said anything that could have been construed as either insulting to the court , or not linked to the subject - matter of the civil case . The court \u2019s failure to dictate the parties\u2019 statements so that TIME reflected exactly what was said amounted to a procedural breach , which could negatively affect the substantive outcome of the case .","On DATE the FAC dismissed his appeal . The court reiterated the reasons invoked in the first - instance decision of CARDINAL DATE . It was further stated that according to the case - law of ORG , the court was not obliged to include in TIME of a hearing all the statements of the parties , in particular those which were not related to the subject - matter of the proceedings .","On DATE the PERSON ORG of its own motion gave a decision and quashed its decision of DATE . The court held that on DATE the new act on the legal structure of the courts entered into force . According to LAW of the new act it was possible to file an appeal against a decision imposing a fine for contempt of court . The court considered that the change of law was of such importance that it justified quashing the decision of CARDINAL DATE even though it had been delivered under LAW .","On DATE the ORG ordered the return to the applicant of the fine paid by him . On DATE , CARDINAL ORG was transferred to the applicant \u2019s bank account .","Section CARDINAL \u00a7 CARDINAL of the Act of DATE ( \u201c the DATE LAW ) on the legal structure of the courts ( Prawo o ustroju s\u0105d\u00f3w powszechnych ) , provides inter alia that the court may impose a disciplinary penalty , a fine or a prison sentence , on a person who , at a court session , behaves in an abusive manner or disturbs the public order .","Under LAW , no appeal is available against a decision to impose such a penalty .","On DATE the new act on the legal structure of the courts entered into force . According to Section CARDINAL of the new act it is possible to file an appeal against a decision to impose a penalty for contempt of court .","On DATE the ORG gave judgment ( No . ORG CARDINAL\/CARDINAL ) and declared unconstitutional LAW of LAW . It found that this provision was not in compliance with article CARDINAL ( right to appeal ) and article CARDINAL \u00a7 CARDINAL ( right to CARDINAL court instances ) of the LAW .","LAW provides :","\u201c The second - instance court shall , upon a motion by a party , examine all those rulings of the court of first - instance which were not subject to interlocutory appeal but which had an effect on the determination of the case . \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","\u201c CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .","Judgments of ORG , ... shall be published without delay .","A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...","A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23617","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2003,"docname":"MEYNE-MOSKALCZUK and OTHERS v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson","text":["The applicants are all GPE nationals resident in the GPE .","PERSON was born in DATE and lives in GPE .","PERSON was born in DATE and lives in PERSON .","PERSON was born in DATE and lives in GPE .","PERSON Nagtegaal was born in DATE and lives in GPE .","The applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","PERSON married a PERSON on DATE . They were divorced with effect from DATE . During the marriage PERSON was employed and accumulated pension entitlements . PERSON took care of the couple \u2019s children . She had no work outside the home and did not accumulate any pension entitlements in her name .","PERSON became entitled to a pension from ORG ( ORG , \u201c ORG \u201d ) as of DATE .","PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of CARDINAL DATE , the ground being that she and PERSON had been married for DATE .","PERSON lodged an administrative appeal ( beroep ) with the ORG \u2019s ORG , arguing that the refusal was discriminatory .","By a letter dated DATE the ORG \u2019s ORG informed PERSON that her objection could not be received . The objection was directed against provisions of the law as such ; these the ORG , an executive administrative body , was not empowered to set aside .","PERSON married a PERSON on DATE . They were divorced with effect from DATE . During the marriage PERSON was employed and accumulated pension entitlements . PERSON took care of the couple \u2019s children . She had no work outside the home and did not accumulate any pension entitlements in her name .","PERSON became entitled to a pension from the ORG as of DATE .","PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of CARDINAL DATE , the ground being that she and PERSON had been married for DATE .","PERSON lodged an administrative appeal with the ORG \u2019s ORG , arguing that the refusal was discriminatory .","By a letter dated DATE the ORG \u2019s ORG informed PERSON that her objection could not be received . The objection was directed against provisions of the law as such ; these the ORG , an executive administrative body , was not empowered to set aside .","PERSON married a Mr M. on DATE . They were divorced with effect from CARDINAL DATE . During the marriage PERSON was employed and accumulated pension entitlements . PERSON took care of the couple \u2019s children . She had no work outside the home and did not accumulate any pension entitlements in her name .","PERSON became entitled to a pension from the ORG as of DATE .","PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of DATE , the ground being that she and PERSON had been married for DATE .","PERSON lodged an administrative appeal with the ORG \u2019s ORG , arguing that the refusal was discriminatory .","By a letter dated DATE the ORG \u2019s ORG informed PERSON that her objection could not be received . The objection was directed against provisions of the law as such ; these the ORG , an executive administrative body , was not empowered to set aside .","PERSON married a PERSON on DATE . They were divorced with effect from DATE . During the marriage PERSON was employed and accumulated pension entitlements . PERSON took care of the couple \u2019s children . She had no work outside the home and did not accumulate any pension entitlements in her name .","PERSON became entitled to a pension from the ORG as of CARDINAL DATE . DATE of his pension was allocated to PERSON .","PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of CARDINAL DATE , the ground being that the divorce had occurred before DATE and the law in force therefore entitled her to DATE of her former husband \u2019s pension .","PERSON lodged an administrative appeal with the ORG \u2019s ORG , arguing that this decision was discriminatory .","By a letter dated DATE the ORG \u2019s ORG informed PERSON that her objection had been dismissed on the ground that the applicable legal provisions had been correctly applied , and that there was no apparent justification for deviating from them .","The applicants each lodged an appeal ( beroep ) to ORG ( arrondissementsrechtbank ) of GPE .","A single hearing was held before ORG in the cases of all CARDINAL applicants on DATE .","ORG gave CARDINAL separate but , for present purposes , identical decisions , CARDINAL in respect of each applicant , on DATE dismissing the appeals . It acknowledged that there was a difference in treatment between persons in the position of the applicants and persons divorced after DATE , but considered that the requirements of legal certainty constituted adequate reasonable and objective justification .","The applicants lodged further appeals ( hoger beroep ) to ORG ( ORG ) , the highest administrative tribunal in matters concerning social security and civil service pensions .","ORG held a single hearing in all CARDINAL cases on DATE . It eventually dismissed the appeals in CARDINAL separate but identical decisions on CARDINAL DATE . Like ORG , it considered the difference in treatment justified by the requirements of legal certainty .","Prior to CARDINAL DATE , it was considered that pensions were by their very nature connected ( verknocht ) solely to the person nominally entitled to them ( see the judgment of ORG ( PERSON ) of DATE , Beslissingen in FAC ( Reports of Decisions in Taxation Cases \u2013 \u201c BNB \u201d ) DATE , no . CARDINAL ) . This meant that pension entitlements could not be included in divorce settlements .","In a landmark judgment of CARDINAL DATE , PERSON ( GPE Law Reports ) DATE , no . CARDINAL , ORG held that pension entitlements existing at the time that a marital community of property ( gemeenschap van goederen ) was dissolved by divorce or judicial separation were , in principle , part of that community of property even if they had not yet fallen due . This meant that they had to be taken into account in the settlement when the assets and liabilities belonging to the community were divided .","The way in which such entitlements should be taken into account depended on considerations of equity ( redelijkheid en billijkheid ) , as applicable to the dissolution of a marital community of property . In many cases , the party nominally entitled to the pension would be faced with an obligation , conditional on the survival of both parties , to pay a certain percentage of the pension instalments to the other party as they became due . However , equitable considerations might dictate other solutions , for example the purchase by the party nominally entitled to the pension of an annuity for the benefit of the other party . In certain cases , for example if adequate arrangements had been made for the maintenance of the other party in some other way , it might be equitable to reduce the other party \u2019s claim to part of the pension or even to cancel it altogether .","ORG recognised that this judgment involved a reversal of its case - law since DATE . It realised that many marital communities of property had been dissolved in the meanwhile without pension rights being taken into account . Although in principle ORG new approach could give rise to the reopening of such cases , considerations of equity coupled with interests of legal certainty entailed that , as a rule , the party nominally entitled to the pension should not be faced with hitherto unexpected claims .","On DATE the Pensions Equalisation ( Divorce ) Act ( QUANTITY verevening pensioenrechten bij scheiding , \u201c the DATE LAW ) entered into force .","In relevant part , it provides as follows :","\u201c CARDINAL . In case of divorce and in so far as CARDINAL of the spouses has accumulated pension entitlements after the marriage was contracted and before the divorce , the other spouse shall have a right to pension equalisation as provided in or under this Act ...","Pursuant to the right to pension equalisation referred to in the first paragraph , a right to payment of a part of each instalment of the pension [ as it becomes ] payable shall come into being vis - \u00e0 - vis the implementing body ...","Payment shall take place subject to the conditions laid down in the applicable instrument . If the time at which the pension starts ( pensioeningang ) precedes or coincides with the time of the divorce , payment shall start at the time the pension starts ...","The right to payment shall end at the time when the right to the pension ends or at DATE in which the spouse entitled to pension equalisation dies ...","... \u201d","\u201c CARDINAL . The part referred to in section CARDINAL , paragraph CARDINAL , shall be CARDINAL of the pension that would be payable if :","( a ) the spouse who is under an obligation to equalise had participated solely during DATE of participation from the time the marriage was contracted until the time of the divorce ;","( b ) he had terminated his participation at the time of the divorce ; and","( c ) he were married or in a registered partnership during the period when he was entitled to the pension .","If the pension is increased or decreased after it starts , the sum resulting from the first paragraph shall be increased or decreased in proportion to the increase or decrease of the pension .","... \u201d","\u201c CARDINAL . This Act shall not apply to a divorce that took place before the date on which this LAW entered into force .","Nonetheless , this Act shall apply by analogy ( van overeenkomstige toepassing ) to a divorce that has taken place before DATE , provided that the marriage lasted for DATE and there were , during the marriage , minor children of the spouses together or CARDINAL of them , it being understood that the part referred to in section CARDINAL , second paragraph , shall be CARDINAL of the pension that would have to be paid pursuant to section CARDINAL , first and second paragraphs , and that there shall be no right to pension equalisation to the extent that the circumstance that the spouse entitled to equalisation has accumulated insufficient pension or none at all has already demonstrably been taken into account . ...","... \u201d","The Explanatory Memorandum to the PERSON which later became LAW ( Explanatory Memorandum ( PERSON ) , ORG of ORG , DATE , CARDINAL , no . CARDINAL , pp . CARDINAL\u2013CARDINAL ) explains that the Government \u2019s intention in introducing this legislation was to make the rule stated by ORG in its judgment of CARDINAL DATE more effective by replacing the claim of CARDINAL spouse against the other with an automatic claim against the body responsible for paying out the pension . It was felt that this would simplify the realisation of the rights of the spouse who was not nominally entitled to the pension , and in addition forestall litigation by making it unnecessary .","An additional aim was to recognise a shared claim after divorce to the pension regardless of whether the parties had been married in community of property or had made other arrangements by a marriage settlement ( huwelijkse ORG ) , the question of the applicability of ORG case - law in the latter situation having given rise to problems in that regard ( Explanatory Memorandum , loc . cit . , p. CARDINAL ) .","Initially , the proposed wording of LAW comprised only the present first paragraph . It was intended that the new Act should not affect divorces pre - dating ORG judgment of DATE , and that divorces which became final after that date but before the entry into force of the LAW should be dealt with in accordance with the case - law which that judgment defined ( Explanatory Memorandum , loc . cit . , p. CARDINAL ) .","The second paragraph of section CARDINAL resulted from an amendment proposed by CARDINAL members of ORG of ORG , PERSON and Soutendijk - van Appeldoorn ( LAW ( ORG amendement ) , ORG of ORG , DATE - CARDINAL , CARDINAL , no . CARDINAL ) . It was intended as a compromise between the requirements of legal certainty and considerations of an equitable nature . For that reason it granted a particular , limited , category of persons divorced before DATE a partial entitlement to pension rights accumulated by their former spouses , albeit a lesser one than that enjoyed by persons who were divorced after the entry into force of the LAW ( Memorandum in Reply ( PERSON ) , ORG of ORG , DATE , CARDINAL , no . ORG , and Further Memorandum in Reply ( Nadere memorie van antwoord ) , ORG of ORG , DATE , CARDINAL , no . CARDINALd ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86452","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2008,"docname":"CASE OF SADAYKOV v. BULGARIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant , who was born in GPE , GPE , settled in GPE , GPE , in DATE , after finishing his university studies . DATE and DATE he was prosecuted and tried on charges of attempted murder and illegal possession of explosives , contrary to ORG CARDINAL \u00a7 CARDINAL ( CARDINAL ) and CARDINAL \u00a7 CARDINAL of LAW of DATE . In a final judgment of DATE he was acquitted of the first charge and found guilty of the second , and sentenced to CARDINAL years\u2019 imprisonment . As he had already spent a longer period of time in pretrial detention , on DATE he was released from prison ( for a detailed description of these events , see the admissibility decision PERSON v. GPE ( dec . ) , no . MONEY , DATE ) .","On DATE the applicant was rearrested on his way out of prison . This happened because in a letter of CARDINAL DATE the GPE deputy regional prosecutor had informed ORG of ORG ( \u201c the ORG \u201d ) that during his trial the applicant had threatened prosecutors and judges that he would \u201c deliver justice \u201d after his release . Apart from that , the validity of the applicant \u2019s NORP passport and of his permit to reside in GPE had expired . As a result , on DATE the head of the ORG ordered that the applicant be brought immediately to the border by force and that he be banned from entering GPE until DATE . The order was based on sections CARDINAL ) and CARDINAL ) and ( CARDINAL ) of the DATE LAW ( see paragraphs CARDINAL and CARDINAL below ) and was reasoned as follows : \u201c [ the applicant ] threatens public order and has been charged under ORG CARDINAL and CARDINAL \u00a7 CARDINAL of the [ DATE ] LAW \u201d . The order also stated that it was to be enforced immediately and was subject to appeal in accordance with the provisions of LAW ( see paragraphs CARDINAL and CARDINAL below ) .","Upon his arrest the applicant was informed about the order : he signed it , and stated in writing that he had familiarised himself with its contents . The applicant alleged that he had not been given a copy of it , whereas the ORG averred that he had been provided with one . The applicant also alleged that after his arrest he had not been allowed to contact a lawyer . The Government denied this , stating that the applicant \u2019s brother was apparently well aware of his situation , as on DATE he had managed to bring a complaint in this regard to the attention of a nongovernmental organisation , ORG , which had enquired of the Minister of ORG about the applicant \u2019s case .","After his arrest the applicant was brought to a detention facility in GPE , where he was kept until DATE . On DATE he was provided with a provisional passport and escorted to PERSON , on LOC , where he was supposed to board a train to GPE . However , during passport control at the border checkpoint it turned out that since DATE the applicant had been under a prohibition order not to leave GPE , which was still in force . He was then taken back to the detention facility in GPE , where he spent DATE , until the prohibition was lifted . On DATE he wrote to the head of the ORG , asking for his assistance in clearing the obstacles to his leaving GPE . On DATE the authorities bought the applicant a new train ticket to GPE . On DATE , DATE , he was deported to GPE .","Under section CARDINAL ) of the DATE LAW ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0447\u0443\u0436\u0434\u0435\u043d\u0446\u0438\u0442\u0435 \u0432 PERSON ) , as in force at the relevant time , the Minister of ORG or an official authorised by him or her could issue an order for the taking of an alien to the border by force in the event that he or she had not left the country after the expiry of his or her residence permit . By section CARDINALa(CARDINAL ) ( presently section MONEY ) ) of the LAW , a ban on entering the country had to be ordered if the grounds under section CARDINAL were met .","The ground under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW , as in force at the material time , was the existence of information that the alien was a \u201c member of a criminal gang or organisation , or [ was ] engaged in terrorist activities , smuggling , or unlawful transactions with arms , explosives , ammunitions , strategic raw materials , goods or technologies with a possible dual use , or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production \u201d . The ground under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW was that the alien had \u201c committed , on the territory of GPE , a wilful offence punishable by DATE imprisonment \u201d .","Section CARDINAL(CARDINAL ) of the LAW , as in force at the relevant time ( presently , with slightly modified wording , section CARDINAL(CARDINAL ) ) , provided that if there were impediments to the deported alien \u2019s leaving GPE or entering the destination country , he or she was under a duty to report DATE to his or her local police station . Under section CARDINAL ) of the LAW , as in force at the material time ( presently , with slightly modified wording , section CARDINAL(CARDINAL ) ) , aliens who were being deported could be placed in holding facilities if this was deemed necessary by the Minister of ORG or officials authorised by him or her . The new subsection CARDINAL of section CARDINAL , added in DATE , explicitly states that the placement of aliens in holding facilities pending their deportation is to be done pursuant to a special order , separate from the CARDINAL for taking them to the border by force . The order has to moreover specify the need for the placement and its legal grounds . In addition , the new subsection CARDINAL , also added in DATE , provides that the procedure for the temporary placement of aliens in holding facilities is to be laid down in a regulation issued by the Minister of ORG . The Minister issued such a regulation on DATE ( \u201e \u041d\u0430\u0440\u0435\u0434\u0431\u0430 \u2116 \u0406-CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u0437\u0430 \u0440\u0435\u0434\u0430 \u0437\u0430 \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u043e \u043d\u0430\u0441\u0442\u0430\u043d\u044f\u0432\u0430\u043d\u0435 \u043d\u0430 \u0447\u0443\u0436\u0434\u0435\u043d\u0446\u0438 , \u0437\u0430 \u043e\u0440\u0433\u0430\u043d\u0438\u0437\u0430\u0446\u0438\u044f\u0442\u0430 \u0438 \u0434\u0435\u0439\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0441\u043f\u0435\u0446\u0438\u0430\u043b\u043d\u0438\u0442\u0435 \u0434\u043e\u043c\u043e\u0432\u0435 \u0437\u0430 \u0432\u0440\u0435\u043c\u0435\u043d\u043d\u043e \u043d\u0430\u0441\u0442\u0430\u043d\u044f\u0432\u0430\u043d\u0435 \u043d\u0430 \u0447\u0443\u0436\u0434\u0435\u043d\u0446\u0438 \u201c , \u043e\u0431\u043d. , GPE , \u0431\u0440. CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. ) .","Section CARDINAL(CARDINAL ) of the regulations for the application of the LAW , adopted in DATE , provides that an alien may be placed in a holding facility until being taken out of the country if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion . Section CARDINAL ) of the LAW states that the procedure for the placement of aliens in these facilities until their deportation is to be ordained by the Minister of ORG .","Section CARDINAL of the LAW , as in force at the relevant time , provided that orders made under sections CARDINAL thereof could be challenged in accordance with the provisions of the CARDINAL LAW , that is , they were subject to an appeal before the higher administrative authority and judicial review .","According to the DATE LAW , as in force at the relevant time , an administrative appeal had to be made within DATE from the notification of the person concerned of the administrative decision ( section CARDINAL(CARDINAL ) of the Act ) . The higher administrative authority had to rule within DATE ( section CARDINAL(CARDINAL ) of the Act ) . If it failed to do so , or if the ruling was negative , the aggrieved person was entitled to lodge an application for judicial review ( sections CARDINAL ) and PERSON ) of the LAW ) . The aggrieved person could alternatively skip this step and directly seek judicial review of the original decision . However , this was only possible if the timelimit for lodging an administrative appeal DATE had already lapsed ( section CARDINAL(CARDINAL ) of the Act ) ."],"violated_articles":["5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":["5-1-f"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80253","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2007,"docname":"KU\u010cERA v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON , ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant occupied a flat in a building owned by ORG . On DATE the ORG filed an action against the applicant seeking to order him to vacate the flat .","On DATE , DATE and DATE the Prague ORG ( obvodn\u00ed soud ) held CARDINAL hearings . After having held a hearing on DATE , the court adopted a judgment by which it allowed the ORG \u2019s claim and ordered the applicant to vacate the flat .","On DATE ORG ( m\u011bstsk\u00fd soud ) , upon the applicant \u2019s appeal of DATE , upheld the first instance judgment . The proceedings were finally closed on DATE . On DATE , the execution title became final .","On DATE the applicant filed an appeal on points of law ( dovol\u00e1n\u00ed ) in ORG ( PERSON ) which dismissed it in judgment of DATE which was notified to the applicant \u2019s lawyer on DATE .","In the mean - time , on DATE , ORG had issued an eviction order against the applicant . The applicant \u2019s subsequent requests to adjourn his eviction were rejected ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114097","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2012,"docname":"CASE OF G\u0141OWACKI v. POLAND","importance":4,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On an unknown date in DATE the applicant was charged with aggravated robbery . In DATE the Siedlce Regional Prosecutor ( Prokurator Wojew\u00f3dzki ) stayed the investigation as the applicant \u2019s whereabouts were not known . In DATE the applicant was arrested and began serving a prison sentence which had been imposed in DATE .","On DATE a bill of indictment was lodged with ORG ( Sad Wojew\u00f3dzki ) . The applicant was charged with robbery .","The proceedings were stayed on DATE in view of the applicant \u2019s health . In DATE he underwent spinal surgery . The trial was resumed on DATE .","The applicant failed to appear at some hearings in DATE , however the trial court found that this was because he had been serving a prison sentence imposed in another set of criminal proceedings .","On DATE the charges against the applicant and several coaccused were severed and dealt with in a separate set of proceedings .","The applicant failed to appear at a hearing held on DATE . On DATE ORG ( PERSON ) issued a wanted notice in respect of the applicant and ordered that he be arrested and remanded in custody .","On DATE the court severed the charges against the applicant , to be dealt with in a separate set of the proceedings , and on the same date stayed the proceedings as the applicant was in hiding .","The applicant was arrested on CARDINAL DATE . He was placed in ORG on DATE .","On DATE ORG resumed the proceedings against the applicant .","In the course of the proceedings , the applicant \u2019s detention was extended on DATE and CARDINAL DATE and DATE , DATE , CARDINAL DATE and DATE . In their decisions on the matter the authorities relied on the original grounds given for holding him in custody . The applicant did not appeal against most of the decisions extending his detention .","On DATE ORG convicted the applicant of armed robbery , burglary and causing serious bodily harm and sentenced him to DATE imprisonment .","The applicant \u2019s detention was subsequently extended , in particular on : DATE and DATE and DATE . The applicant lodged an appeal against the last of those decisions .","On DATE , at the applicant \u2019s request , the detention was lifted and he was released from custody .","On DATE the applicant began serving the prison sentence imposed on DATE .","On an unknown date in DATE ORG ( Prokurator Okregowy ) instituted criminal proceedings against the applicant and several co - accused on charges of illegal possession of weapons and robbery .","On DATE ORG remanded the applicant in custody , relying on the suspicion that he had committed the offences with which he was charged . It attached importance to the likelihood of a lengthy prison sentence being imposed on the applicant , the serious nature of the offences of which he was suspected , and the risk that he would go into hiding . This was made more likely by the facts that he did not have a permanent place of residence and was unemployed . The applicant did not appeal against this decision .","In the course of the investigation the applicant \u2019s detention was extended on DATE and CARDINAL DATE and on DATE , DATE and DATE . The authorities relied on the original grounds given for keeping him in custody .","Appeals by the applicant against the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful .","On DATE a bill of indictment was lodged with ORG .","On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months\u2019 imprisonment . The applicant \u2019s detention was subsequently extended .","On DATE ORG partly upheld the first - instance judgment and partly remitted it . It also sentenced the applicant to DATE imprisonment . The applicant served this sentence DATE and DATE .","On DATE ORG lifted the applicant \u2019s remand in custody .","On DATE the applicant lodged a complaint with ORG under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) . The applicant sought a ruling that the length of the proceedings before ORG ( see paragraphs CARDINAL above ) had been excessive , and also sought an award of just satisfaction .","On DATE the ORG gave a decision and dismissed the applicant \u2019s complaint . The court considered that there had been no significant delays in the proceedings , as the applicant had contributed to the length of the proceedings .","On DATE the applicant was placed in ORG ) .","On DATE ORG of ORG classified him as a \u201c dangerous detainee \u201d ( tymczasowo aresztowany niebezpieczny ) and ordered that he be placed in a closed cell . The commission referred to : the fact that the applicant was accused of armed robbery and using fake police uniforms , and that he had previously escaped from ORG , and also to his \u201c serious lack of moral character \u201d and long history of criminal convictions .","Every DATE ORG reviewed and upheld its decision classifying the applicant as a \u201c dangerous detainee \u201d . In particular on DATE the commission confirmed its previous decision . It considered that it was necessary to place the applicant in solitary confinement as he had been charged with numerous offences , including armed robbery . The commission also referred to \u201c serious lack of moral character \u201d .","The applicant appealed to the penitentiary courts against most of those decisions , arguing that he was suffering from various health problems including hemiparesis and discopathy , and should not be placed in solitary confinement . He also stressed that he had never been charged with acting as part of an organised criminal group .","All his appeals were dismissed . The courts gave decisions on CARDINAL May , DATE and DATE , DATE and DATE , and DATE . The authorities relied on the grounds given for the initial decision . In particular they stressed the risk posed by the seriousness of the offences and the use of weapons and fake police uniforms .","On DATE the applicant was transferred to FAC so that he could attend the proceedings before ORG ( see paragraphs DATE above ) . He was placed alone in a cell for dangerous detainees . This situation applied DATE and DATE and DATE and DATE . The applicant complained about this on several occasions , alleging that due to his health problems , for safety reasons he should have been placed with another inmate .","Due to his \u201c dangerous detainee \u201d status the applicant was under increased supervision . The applicant \u2019s cell in FAC measured CARDINAL sq . m. DATE and DATE he shared it with another inmate . Every time the applicant left or entered his cell he was subjected to a body search , which in practice meant that he had to strip naked . Examinations of the applicant \u2019s body , his clothing and shoes were conducted in a separate room , with no third parties present .","The applicant was ordered to wear \u201c joined shackles \u201d ( kajdanki zespolone ) on his hands and feet on CARDINAL occasions during the proceedings before ORG , on CARDINAL , CARDINAL and DATE . Those shackles consisted of handcuffs and fetters joined together with chains . On each occasion he was put in the shackles on his arrival at the court and remained handcuffed throughout DATE until the end of the hearing .","The applicant was allowed to receive visits from his family . According to a list of visits provided by the ORG , DATE and DATE the applicant was visited on CARDINAL occasions by his sister and son ( CARDINAL visit per month ) . Subsequently , DATE and DATE his sister and son visited him on average once a month . The majority of these visits lasted TIME . DATE and DATE he was not visited by anyone .","On CARDINAL DATE the applicant was granted leave to attend his mother \u2019s funeral .","The Government submitted that after his initial complaint the applicant had , in direct conversation with the prison authorities , agreed to be held in solitary confinement .","The applicant argued that when his complaints were unsuccessful he had had no other choice than to accept the situation which had been imposed on him .","The applicant was detained in the following detention centres : FAC , FAC , GPE FAC , and FAC .","He failed to lodge a claim for compensation for damage to his health sustained as a result of inadequate conditions of detention .","The applicant argued that the living conditions in the detention centres in which he was detained were inadequate . The cells were very small , with QUANTITY . m per person . The exercise area was also very small , QUANTITY m.","The Government submitted that during the applicant \u2019s detention in all CARDINAL of the penal establishments listed above all standards of detention were respected .","The relevant domestic law and practice concerning the imposition of dangerous detainee status are set out in the ORG \u2019s judgments in the cases of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) , and ORG v. GPE ( no CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) .","The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) are set out in the ORG \u2019s judgments in the cases of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) , and PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings , in particular the applicable provisions of LAW , are stated in the ORG \u2019s decisions in the cases of ORG v. GPE , no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ORG , and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINALVIII , and in its judgment in the case of ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V.","DATE the Civil Code contains a non - exhaustive list of \u201c personal rights \u201d ( dobra osobiste ) . This provision states :","\u201c The personal rights of an individual , such as , in particular , health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected by the civil law regardless of the protection laid down in other legal provisions . \u201d","Article CARDINAL , paragraph CARDINAL , of the Civil Code provides :","\u201c A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an appropriate sum for the benefit of a specific public interest . \u201d","Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :","\u201c The court may grant an appropriate sum as pecuniary compensation for non - material damage ( krzywda ) to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of whether they are seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... \u201d","Articles CARDINAL et seq . of the NORP LAW provide for the ORG \u2019s liability in tort .","Article CARDINAL \u00a7 CARDINAL of LAW ( as amended ) provides :","\u201c ORG , or [ as the case may be ] a self - government entity or other legal person responsible for exercising public authority , shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . \u201d","Article DATE of the Civil Code sets out limitation periods for civil claims based on tort , including claims under LAW read in conjunction with ORG and CARDINAL of LAW . This provision , in the version applicable from DATE , reads , in so far as relevant , as follows :","\u201c CARDINAL . A claim for compensation for damage caused by a tort shall lapse after the expiration of DATE after the date on which the claimant learned of the damage and the identity of the person responsible for it . However , DATE may not be DATE after the date on which the event causing the damage occurred . \u201d","The relevant international documents concerning the imposition of security measures and the DATE Report of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( \u201c the ORG \u201d ) are set out in the ORG \u2019s judgment in the case of ORG v. GPE ( cited above , \u00a7 \u00a7 CARDINAL - CARDINAL ) ."],"violated_articles":["3","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-68687","languageisocode":"ENG","respondent":"MKD","branch":"ADMISSIBILITY","date":2005,"docname":"SKENDER v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":2,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , NORP by birth , is a national of the former GPE . He was born in DATE and lives in the village of PERSON , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","According to LAW , pupils have to attend ORG primary schools in their place of residence . However , in the school situated in the applicant 's district PERSON no classes in NORP were available .","DATE the applicant 's older daughter attended the primary school in the village of ORG in a different district where education in NORP was provided . However , according to the applicant , on DATE classes were allegedly interrupted by the police and the school director announced that pupils from other villages were no longer allowed to attend classes in the ORG school .","On DATE ORG and ORG ( \u201c the Ministry \u201d ) refused the applicant 's request of DATE to provide education in NORP in PERSON . It stated , inter alia , the following :","\u201c ... we inform you that ORG ... [ on ] DATE decided the following :","ORG and ORG is responsible for providing education in the primary schools in GPE Centar \u017dupa in accordance with the LAW and LAW .","... [ education in ] NORP can not be replaced by [ education in ] NORP [ in PERSON ] , as the children have not been speaking NORP before they started attending the school .","The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [ pupils ] to return to the school [ in PERSON ] where special courses will be given so that [ they could ] catch up with the rest ...","ORG and ORG urges that your children attend the courses in the [ primary school ] ... in PERSON in accordance with LAW . \u201d","On DATE the ORG decided to provide education in NORP in the school in PERSON for the pupils whose mother tongue was NORP in accordance with ORG decision of DATE to that effect .","On DATE the political party ' ORG and the associations of citizens \u201c The ORG \u201d and \u201c the Association of the NORP with NORP Religion in GPE \u201d asked ORG to examine the constitutionality of ORG decision of DATE and the respective ORG 's decision of CARDINAL DATE . On DATE ORG declared the decisions null and void on the following grounds :","\u201c ...","... it , inter alia , appears that ( CARDINAL ) the impugned acts determined that NORP was the mother tongue of all the pupils [ residing in ] the municipality of PERSON ...","Under LAW the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law . In the schools where the education is in the languages of the minorities , the NORP language shall be studied as well .","It follows that the members of the minorities are educated in the primary and secondary schools in their language , and that is , according to the court , the language of their choice [ which they use ] in their everyday life . Therefore , the provision of the LAW established objective criteria for the fulfilment of the right to education of the national minorities in their language [ which ] does not depend on the subjective will of the ORG bodies ...","The impugned acts provide education in NORP for the pupils in the municipality of PERSON who use the NORP language of their choice in their everyday communications and , thereby , express their national identity , and who do not use the NORP language in their everyday communications and of their choice . Thus , [ the acts ] exceeded the boundaries of the LAW framework setting out the rights of the national minorities to education in DATE ( LAW ) and inhibited the achievement of the purpose of education - to provide knowledge , and impinged upon the very content of the right to education , i.e. the [ right to ] education is being manipulated with the purpose of changing the national identity of a number of pupils in the municipality . Therefore , the court finds that the impugned acts are not in conformity with the aforementioned LAW provision .","... \u201d","On DATE the applicant asked the ORG school to admit his older daughter . Since he received no reply , on DATE he complained to ORG ( \u201c the Commission \u201d ) . No reply was received by the applicant .","On DATE the applicant brought administrative proceedings before ORG , arguing that his daughter had the right to education in GPE .","On DATE the ORG school refused to enrol the applicant 's older daughter as the applicant 's place of residence was in a different district .","On DATE ORG refused to examine the applicant 's complaint on the merits in respect of the PERSON school 's refusal to enrol his older daughter . It , inter alia , stated :","\u201c ...","Under section CARDINAL \u00a7 CARDINAL of LAW if the second instance administrative body does not pass a decision within DATE , and on the person 's repeated request to act does not reply within DATE , the person may institute administrative proceedings ...","... it can not be established from the submitted documents that the [ second instance ] administrative body received [ the applicant 's ] second request to act ... it follows that the complaint is premature .","The applicant 's request that the ORG provides education in NORP ... is inadmissible , as under section CARDINAL of LAW a complaint may only be lodged concerning the administrative acts and the [ applicant 's ] request is not an administrative act ... \u201d","On DATE the applicant requested ORG to quash ORG decision of DATE . He , inter alia , complained that the court had assessed the evidence wrongly and that his daughter had been discriminated against as a result of ORG decision since she was denied access to a NORP - speaking school .","On DATE the applicant was informed that ORG had not been competent to deal with his complaint . On DATE the Constitutional Court refused to examine the applicant 's complaint that ORG decision of DATE interfered with his daughter 's right to education in NORP . It , inter alia , held that :","\u201c ... ORG did not decide on the enjoyment of the right to primary education in the language of the minorities , but on the procedural conditions ... to institute administrative proceedings , as such [ the decision ] can not have any repercussions in favour or to the disadvantage of the applicant ...","... the [ impugned ] decision is procedural and [ does not examine ] the merits and does not concern the right to primary education in the minorities ' languages , therefore , the court holds that there are procedural impediments to examine the applicant 's complaint ...","... \u201d","On DATE , the applicant requested that his younger daughter NORP be enrolled in the LANGUAGE - speaking primary school in GPE .","On DATE the applicant 's request was refused by ORG as he lived in another district .","On DATE the applicant applied to ORG to expand his existing claim concerning his older daughter with complaints concerning his younger daughter NORP","On DATE , ORG informed the applicant that it was not possible to expand his claim as the case concerning his older daughter had terminated on DATE and that his application would be treated as concerning a new claim . He was requested to identify and provide a copy of the administrative act against which the claim was directed within DATE .","On DATE , the applicant wrote to the local office of the ORG lodging an objection with the refusal of the ORG school to enrol NORP","On DATE ORG refused to examine the applicant 's complaint about the school 's refusal on the ground that he had not complied with the DATE time - limit for completing his appeal .","On DATE the applicant complained to the Commission that he had not received a reply to his objection .","On DATE the Ministry informed the applicant that he should enrol his daughter in the school in his place of residence .","On DATE the applicant applied again to the Commission , considering that this was neither a decision nor an administrative act and requiring that a decision be taken .","On DATE , having not received an answer from the Commission , the applicant lodged an administrative complaint with ORG .","From DATE , following the decision of the Ministry on DATE , children in the primary school in PERSON whose parents had requested them to be taught in NORP , including the applicant 's daughter NORP , commenced their regulation education classes which were conducted in GPE .","On DATE , ORG requested the applicant to specify the basis of his complaints .","On DATE ORG dismissed the applicant 's administrative complaint on the ground that under LAW pupils were assigned to schools in accordance with their place of residence and that he had been informed that his daughter had to attend the school in PERSON . The court further relied on ORG decision of DATE annulling the ORG 's decisions to provide education in NORP in PERSON .","The PERSON primary school attended by NORP continues to teach regular classes in NORP , NORP and NORP .","DATE as follows :","\u201c Every person has the right to education . Education is accessible to all persons under equal conditions . Primary education is compulsory and free of charge . \u201d","Article CARDINAL provides as follows :","\u201c The members of minorities have the right to express , nurture and promote their identity and national attributes .","The Republic guarantees the protection of their ethnic , cultural , linguistic and religious identity .","The members of minorities have the right to establish institutions for culture and art , as well as scientific and other associations to express , nurture and promote their identity .","The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law . In the schools where the education is provided in the minorities ' languages , the NORP language shall also be taught . \u201d","LAW sets out ORG competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication , conscience , opinion and public expression , political association and activities , as well as prohibition of discrimination on the grounds of gender , race , religion or national , political or social affiliation . Article CARDINAL provides that the Constitutional Court shall repeal or revoke a law if it determines that it does not conform to the LAW and that it shall repeal or revoke any other regulation or enactment , collective agreement , statute or programme of a political party or association , if it determines that it does not conform to LAW or law .","Section CARDINAL provides that a person who claims to be a victim of a violation of CARDINAL of the rights set out in LAW shall have the right to file an application with ORG .","Section CARDINAL provides , inter alia , that the members of minorities shall have the right to education in their own language . They shall also study the NORP language .","Section CARDINAL provides that primary schools shall admit all the pupils living in their district . Sections CARDINAL and CARDINAL provide that the parents are responsible for the enrolment of their children and for their regular attendance at the classes . The primary school shall inform ORG and ORG about the pupils of its area who have not enrolled , or have not attended the classes for DATE without a justification .","Section CARDINAL provides , inter alia , that on the parents ' or guardians ' request the pupils may be transferred to another school .","Section CARDINAL provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within DATE .","Section CARDINAL \u00a7 CARDINAL provides that a person may institute administrative proceedings before ORG provided that the second instance administrative body does not decide on the matter within DATE from DATE the appeal against the first instance administrative body is received , and does not react within DATE on the person 's repeated request ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82905","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2007,"docname":"CASE OF KAJARI v. FINLAND","importance":4,"conclusion":"No violation of Art. 6-1;No violation of Art. 8","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE . He and another NORP national have a daughter born out of wedlock in DATE . On DATE mother and daughter arrived in GPE . On DATE their residence there was officially registered . In DATE the daughter lived both with her father in GPE and with her mother in GPE in accordance with an agreement between the parents .","According to the Government , on DATE the applicant gave his written consent to the child 's temporary stay in GPE and on DATE he gave his consent that she stay permanently in GPE , presupposing that his visiting rights would not be affected .","According to the applicant , he and the mother agreed in writing on DATE that they would participate equally in the care of their daughter and that she would spend an equal amount of time , DATE at a time , with each parent .","On DATE the applicant and the mother agreed that neither of them would pay the other maintenance in respect of their daughter . On DATE the agreement was confirmed by ORG ( sosiaalilautakunta , socialn\u00e4mnden ) of ORG , GPE .","On DATE the mother removed the child from day care in GPE and brought her to GPE .","On DATE the mother instituted custody proceedings in ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) of GPE , GPE , following which the court made an interim order awarding her sole custody .","NORP The court received ORG of ORG and ORG ( Sotsiaal- ja GPE ) of GPE written opinions on the assessment of the parents and their living conditions . The NORP authority had interviewed the mother , the child and her brother , the mother 's partner and the child 's day care teacher . It did not interview the applicant nor did its NORP counterpart interview anyone other than the applicant . It appears that the authorities did not contact each other before submitting their opinions .","ORG held QUANTITY hearings , on DATE and DATE , during which the parents with counsel were present . It received evidence from the parties and several witnesses . In its decision of CARDINAL DATE the court found that the NORP courts had jurisdiction and that NORP law was applicable to the case . The court held that as the parents were unable to agree on matters relating to custody , custody should be awarded to the mother alone . The court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities .","On DATE ORG ( hovioikeus , hovr\u00e4tten ) , having held a hearing , rejected the applicant 's appeal . It held that the NORP courts had jurisdiction because the child resided in GPE and had a close connection with the country . It also agreed with the lower court that NORP law was applicable . As the parents ' agreement of DATE had not been confirmed by ORG , the custody had not been settled prior to the proceedings in question . Further , the court found that the child 's living conditions with the mother were balanced and solid . As the parents were unable to make decisions together relating to their daughter 's custody , the court saw no reason to amend the lower court 's decision .","On DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused leave to appeal .","In DATE the applicant lodged an application with ORG ( oikeusministeri\u00f6 , justitieministeriet ) in order to have the child returned to GPE under LAW on the Civil Aspects of International Child Abduction . The application was rejected , since it had already been confirmed by the above - mentioned courts that the child 's habitual residence was in GPE . Thus , LAW did not operate .","Meanwhile , on CARDINAL DATE the applicant instituted custody proceedings before ORG ( PERSON ) . In DATE the proceedings were suspended \u201c until clarification of the issue of proper forum \u201d .","On DATE the applicant instituted access proceedings before ORG . He requested that the child be allowed to visit him once DATE from TIME until TIME and during some of the holidays .","On DATE the court received a written opinion from ORG of Harjavalta , which had interviewed the mother and her partner on several occasions . Also the daughter had been interviewed at her home . The applicant had been interviewed over the telephone and he had submitted some documents in support of his access claim .","On DATE the court held a hearing during which the parents with their counsel were present . It received written and oral evidence .","On DATE the court ordered that the child should have the right to meet with the applicant every other DATE from TIME under the supervision of a social worker at the child 's domicile . The mother was to assume responsibility for transporting their daughter to these meetings and for bearing the transportation costs . The court considered that the visits should be supervised owing to the fact that the applicant and the child had not met regularly for DATE . CARDINAL of the factors that contributed to this conclusion was that the applicant had allegedly tried to abduct the child . Further , as to the view of ORG that access should be granted twice a month for TIME at a time , the court found that TIME was too short a period in order to develop a trusting relationship between the applicant and his daughter and accordingly , it ordered that the visits should TIME at a time . Lastly , the court emphasised that the access arrangements could be altered in the future , if need be .","On DATE ORG rejected the applicant 's appeal without an oral hearing . As to the allegedly unfair ORG proceedings , it found that the applicant had been able to submit evidence , which fact transpired from the decision . In its decision ORG had stated what evidence had been submitted to it . As to the merits , ORG found no reason to amend the lower court 's decision .","On DATE ORG refused leave to appeal .","Custody and right of access may be organised either by an agreement that is confirmed by ORG or by a court decision . The parents can have joint custody , custody can be awarded to CARDINAL of the parents or to CARDINAL else who has consented thereto . The child has the right to maintain contact and meet with the parent with whom he or she no longer resides ( sections CARDINAL , CARDINAL ( CARDINAL\/CARDINAL ) and CARDINAL ) of ORG ( laki lasten huollosta ja tapaamisoikeudesta , lag ang\u00e5ende v\u00e5rdnad om barn och umg\u00e4ngesr\u00e4tt ; DATE ) . When making a decision relating to custody and right of access , the best interests and the wishes of the child must be taken into account ( sections CARDINAL and CARDINAL ) .","When a child has domicile in GPE at the time of conclusion of an agreement on his or her custody , the agreement has to be made in accordance with NORP law , even if all the parties are of a foreign nationality . In order for the agreement to be valid , it has to be confirmed by ORG ( section CARDINAL) . Alternatively , the question of custody may be decided by a court . An agreement concluded without the confirmation of an authority may upon request be recognised and enforced in GPE as a decision given in a foreign State , if the measure is legally valid and enforceable in the ORG where the child had habitual residence at the time of conclusion of the agreement ( section CARDINAL ) .","NORP In order to have an agreement enforced in GPE it must first be recognised by ORG ( section CARDINAL ; CARDINAL\/CARDINAL ) .","A parent may at any time institute proceedings in a case relating to custody or right of access ( section CARDINAL ) . An agreement or a court order may be amended if the circumstances have changed ( section CARDINAL ) .","ORG 's opinion on how custody or rights of access could be arranged ( section CARDINAL ; CARDINAL\/CARDINAL ) .","In cases where the parents are unable to reach an agreement on custody or rights of access , the case will be decided by the court . The guiding principle is the best interests of the child . Special attention shall be paid to the manner in which custody or right of access may best be realised ( section CARDINAL ) .","The child 's wishes and views must be ascertained as far as possible in view of the child 's age and stage of development . The views of the child shall be ascertained tactfully , taking his or her stage of development into account , and in a manner not detrimental to the relationships between the child and the parents ( section CARDINAL ) .","In normal circumstances a DATE is considered mature enough to express his or her views . The interview of a child is usually conducted by the social welfare authorities and at the child 's home . However , the court may decide to hear the child in person , if there are important reasons for doing so , the child does not object to it and it causes no harm to the child ( section CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6","8"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-82990","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2007,"docname":"WEBER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE PERSON , PERSON ( GPE ) . He was represented before the ORG by PERSON , a lawyer practising in GPE .","Until DATE the applicant was the executive president ( PERSON ) of a public limited company , PERSON , which collapsed in DATE . When ORG instituted criminal proceedings against the applicant on suspicion of breach of trust and falsification of a balance sheet , the applicant left GPE and moved to GPE . During the criminal proceedings , the applicant was interrogated on DATE by the consular service ( konsularische GPE ) of ORG in GPE . On DATE ORG discontinued the criminal proceedings against him . During these proceedings the applicant had been represented by a lawyer , W , practising in GPE .","On DATE a creditor company brought a civil action for damages against the applicant personally before ORG , claiming damages of CARDINAL ORG .","On DATE ORG lodged a request to serve the writ on the applicant through the NORP diplomatic service ( GPE i m LAW ) .","On DATE ORG made an attempt to serve the writ directly on the applicant following his interrogation in the criminal proceedings . According to the ORG the applicant refused to permit his lawyer W to accept the writ . According to the applicant , only W was informed of the writ , but the lawyer declined to accept it and consequently the applicant was not aware of the writ .","Subsequently , the ORG referred the request to the NORP authorities for action , but the latter did not execute the request for service .","On DATE the plaintiff requested ORG to serve the writ by public notification ( \u00f6ffentliche PERSON ) referring to information from the ORG according to which attempts to serve documents in GPE usually failed because the NORP authorities remained inactive .","As it was not possible to have the writ served by the NORP authorities , on DATE ORG ordered service of the writ by public notification in the Federal Bulletin and on the court \u2019s notice board . It fixed a DATE time - limit for entering a notice of defence .","On DATE the writ was published in ORG . Between DATE and DATE it was posted on the court \u2019s notice board .","On DATE the DATE time - limit set by ORG for entering a notice of defence elapsed without any reaction from the applicant .","On DATE ORG ordered the applicant by way of default judgment to pay the plaintiff damages amounting to CARDINAL ORG and fixed a DATE time - limit for filing objections ( PERSON ) .","On DATE the judgment was served by public notification on the court \u2019s notice board . It became final on DATE . The DATE time - limit fixed by ORG for filing objections elapsed on DATE .","By letter of DATE , the applicant \u2019s lawyer W asked the plaintiff \u2019s lawyer about the civil proceedings . On DATE he was informed that the civil proceedings had ended DATE with the default judgment .","On DATE the applicant lodged an objection against the default judgment before ORG and requested reinstatement of the proceedings . The applicant argued that ORG had no right to serve the judgment by public notification within the meaning of Section CARDINAL \u00a7 CARDINAL of LAW . As ORG knew his address it should have served the judgment by postal service in terms of LAW . On DATE the applicant \u2019s lawyer PERSON stated that he did not wish to challenge the validity of the public notification of the writ , which in his view had been erroneous but valid ( er wende sich \u201c nicht gegen die obschon fehlerhafte , aber trotzdem wirksame \u00f6ffentliche GPE der GPE \u201d ) . His complaint was limited to a challenge to the validity of the public notification of the default judgment .","On DATE ORG rejected the applicant \u2019s objection on the ground that the judgment had been validly notified ( by public notification ) , and that the public notification itself had been valid . ORG found that there had been no entitlement to postal service according to LAW as it was for the court , in its discretion , to select the method of service ( pflichtgem\u00e4\u00dfes PERSON ) once the conditions set out in LAW of LAW had DATE as in the applicant \u2019s case - been satisfied . It opted for service by public notification because postal service was disadvantageous to the applicant . Thus , LAW sentence CARDINAL of the Code of Civil Procedure provided that the relevant time - limit started to run from DATE on which the judgment had been posted . It was therefore likely that the time - limit for lodging an objection would have elapsed before the applicant received the default judgment . Moreover , postal service would be invalid if it transpired that the defendant \u2019s address had been incorrect . In such a case the court would have to re - serve by way of postal service , which was neither in the plaintiff \u2019s interest nor in the interest of legal certainty .","At the same time , ORG rejected the applicant \u2019s request for reinstatement because the applicant had failed to comply with Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure as he had lodged his application for reinstatement only on DATE , which was far more than one year after the expiry of the time - limit for objections on CARDINAL DATE . Moreover , the applicant had failed to comply with the DATE time - limit to lodge his request for reinstatement ( PERSON ) within the meaning of LAW \u00a7 CARDINAL of LAW . The court noted that on DATE W had been informed that the civil proceedings had ended DATE with the default judgment . Therefore , the applicant should have lodged his request for reinstatement in DATE .","Finally , ORG pointed out that the applicant had missed the time - limits through his own fault . It considered that the applicant had been aware of the civil proceedings and the default judgment . Thus , ORG had tried to hand the writ over to the applicant at the end of his interrogation in ORG during the criminal proceeding , but he had refused to accept it himself and had forbidden to serve it on his lawyer PERSON if only W was informed of the writ on DATE , as submitted by the applicant , W was known to the court as a very diligent lawyer who would have informed the applicant about the existence of the civil proceedings even if he had only been mandated for the criminal proceedings . Therefore the applicant failed to comply with the requirement of Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure to appoint a person for service ( ORG ) to ensure the receipt of his mail .","On DATE ORG rejected the applicant \u2019s appeal for the following reasons :","First , the conditions for public notification in terms of Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure had been satisfied , given in particular that service abroad had proved to be impossible due to the NORP authorities\u2019 lack of cooperation in dealing with requests for service of judicial documents . In this respect ORG referred to the unsuccessful attempt of ORG to serve the writ on the applicant through the diplomatic service and to ORG communication of DATE which confirmed that requests to serve documents were often not executed by the NORP authorities .","Secondly , it found that ORG had reasonably exercised its discretion to decide upon the type of service by striking a fair balance between the competing interests of legal certainty and the plaintiff \u2019s right to have justice administered ( Justizgew\u00e4hrungsanspruch ) , on the one hand , and the applicant \u2019s right to fair trial , on the other hand . Thus , postal service would have excluded the application of LAW of LAW and , hence , the possibility to apply a longer time - limit to lodge objections against the default judgment than the DATE time - limit provided for by LAW . Both service by public notification and postal service contained an assumption that the documents had been duly served ( Zustellungsfiktion ) . However , postal service entailed the additional risks for the plaintiff that the defendant \u2019s address was incorrect or that the latter had changed his residence . In circumstances as in the present case where the defendant deliberately left GPE and moved to a country which did not cooperate with GPE in judicial matters , it would be unfair to burden the plaintiff , who had no opportunity to verify the correctness of the defendant \u2019s address , with that risk .","Thirdly , ORG relied on the ORG \u2019s information according to which the applicant had refused to permit his lawyer W to accept the writ . Thus , the applicant had been aware of the civil proceedings and could have participated in them . Moreover , ORG emphasized that the applicant produced the difficult situation himself by moving to a non - cooperative country without complying with his procedural obligation under LAW of LAW to appoint a person for service and , hence , to ensure the receipt of his legal documents .","On DATE ORG dismissed the applicant \u2019s further appeal . It argued that the applicant could not invoke a violation of his right to be heard because he had explicitly accepted the validity of the writ \u2019s service by letter of CARDINAL DATE . In doing so he must be treated as if he had had the opportunity to appoint a person for service in terms of LAW of LAW .","On DATE ORG refused to admit the applicant \u2019s constitutional complaint without giving any reasons .","Sections CARDINAL et seq . of ORG as in force at the material time governed the service of legal documents . Pursuant to LAW of LAW parties residing abroad were required to designate a person for service if they had no authorised legal representative who resided within the judicial district of the trial court . If the party failed to do so , the document could be served by post . In that case LAW sentence CARDINAL of the Code of Civil Procedure provided that the document was deemed to have been served at the moment in which it was delivered to the post office . According to the case law of ORG ( see decision of DATE , no . VI ZR CARDINAL ) the presumption of service ( Zustellungsfiktion ) did not apply in cases where the address of the recipient had been incorrect or incomplete .","Section CARDINAL et seq . of the Code of Civil Procedure as in force at the material time governed the service of documents abroad . As a general rule a court \u2019s request for service abroad of a judicial document should be effected either directly by the competent authority of the state addressed or through the diplomatic channel . Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure provided for that the document might be served by public notification ( \u00f6ffentliche PERSON ) if the service abroad had either proved impossible or was unlikely to be successful . Instead of ordering service by public notification , the domestic courts could , acting within their discretion , decide to serve the document by postal service pursuant to LAW of LAW . According to LAW a writ was considered to have been served DATE after the public notification in the Federal Bulletin ; a judgment was deemed to have been served DATE after the notification on the court \u2019s notice board .","Section CARDINAL et seq . of LAW govern the reinstatement of proceedings . Section CARDINAL of the Code of Civil Procedure provides that the reinstatement of the proceedings is granted where persons , through no fault of their own , are prevented from complying with inter alia the time - limit for lodging an objection against a default judgment or for requesting the reinstatement of the proceedings . Pursuant to Section CARDINAL \u00a7 \u00a7 CARDINAL , CARDINAL of the Code of Civil Procedure the application for reinstatement of the proceedings must be made within DATE from the moment in which the party becomes aware or should have become aware of the non - compliance with the respective time - limit . Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure precludes applications for reinstatements which are made DATE after the relevant time - limit , such as the time - limit for lodging objections , had elapsed .","Section CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure provides that the DATE time - limit for lodging objections against default judgments starts to run with the service of the judgment . According to LAW the court fixes a time - limit for lodging objections if the service has to be effected abroad or by public notification .","GPE is not a party to LAW , nor is there any bilateral agreement on the service of judicial documents between GPE and GPE . In the absence of any such agreement , requests for legal assistance from GPE are executed on the basis of reciprocity in GPE .","The NORP administrative rules on mutual assistance in civil and commercial matters ( PERSON GPE ) provide guidelines for the domestic courts on how to deal with requests for mutual legal assistance . They also contain a country section which reports on the specific situation in the different GPE , including GPE .","According to these rules , a NORP court which wishes to serve a document on a party in GPE may send a request through the diplomatic channel . Such request shall be sent to ORG in GPE which will refer the request to the NORP authorities for action . Members of ORG are allowed to serve documents directly , i.e. without the involvement of the NORP authorities , either on persons who reside in GPE or on persons residing outside the capital if the service may be effected on a representative ( Vertrauensperson ) . The administrative rules also allude to the long periods of time needed for the execution of such requests in GPE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98989","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2010,"docname":"ATILLA v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria","text":["The applicants are NORP nationals and at the time of their applications they were all but QUANTITY in pre - trial detention in FAC . The names and dates of birth of the applicants appear in the appendix . They were all represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .","On DATE the applicants announced a collective DATE hunger strike in protest against the conditions of detention of PERSON , leader of the ORG ( ORG , an illegal , armed organisation . On DATE the Diyarbak\u0131r F - type ORG imposed a disciplinary sanction on the applicants , consisting of a DATE ban on sports activities and conversation in groups ( spor ve sohbet etkinlikleri ) , for launching a hunger strike and forming a group with a view to breaching the regulations . The applicants lodged appeals , which were rejected by ORG and ORG on DATE and DATE respectively . The final decision was deposited with the registry of the court on DATE .","Law no . DATE on the Enforcement of Sentences and Preventive Measures provides as follows :","Article CARDINAL","\u201c CARDINAL . The penalty of a deprivation of certain activities deprives convicts of the right to participate in the prison workshops and sports activities from DATE .","The acts requiring the penalty of a deprivation of certain activities are as follows :","...","( g ) launching a hunger strike ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-66790","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2004,"docname":"CASE OF MANCHEVA v. BULGARIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant is a NORP national , who was born in DATE and at the relevant time lived in GPE , the region of GPE .","The applicant used to work in the village of PERSON , with ORG branch of ORG ( GPE \u0441\u043e\u0446\u0438\u0430\u043b\u0435\u043d \u043f\u0430\u0442\u0440\u043e\u043d\u0430\u0436 , PERSON DATE \u0437\u0430 \u0441\u043e\u0446\u0438\u0430\u043b\u043d\u0438 \u0433\u0440\u0438\u0436\u0438 ) . At the relevant time , ORG were ORG administrative bodies funded by the ORG and municipal budgets .","On DATE the applicant suffered an accident at work . Subsequently she underwent surgical operations . She was unfit for work for DATE and continued experiencing health problems for DATE thereafter .","On DATE the applicant instituted civil proceedings against her former employer , the local ORG , claiming pecuniary and nonpecuniary damages . A representative for ORG took part in the proceedings apparently maintaining that the applicant was responsible for the accident and that the claims were excessive .","NORP On DATE ORG partially granted the applicant \u2019s claim and awarded her MONEY ( \u201c BGL \u201d ) in nonpecuniary damages and ORG CARDINAL in costs , plus statutory interest .","On DATE the defendant , ORG , lodged an appeal with ORG .","According to the Government , on DATE ORG sent to the applicant a registered letter inviting her \u201c to collect ORG CARDINAL \u201d but the applicant refused receipt of the letter .","According to the applicant , as of CARDINAL DATE the proceedings before ORG were still pending .","On an unspecified date these proceedings ended and ORG judgment became final and enforceable .","Following a conversation between the applicant and employees of ORG , on DATE ORG sent to the applicant a letter inviting her \u201c to collect ORG CARDINAL \u201d .","On DATE the applicant submitted a written request to ORG insisting on payment in compliance with ORG judgment , including all interest and costs . She offered her calculation of the interest that had accrued since the relevant starting date , DATE , and stated that the amount due was BGL CARDINAL .","The applicant , who at that time lived in another town , authorised another person to receive the money .","According to \u201c minutes \u201d , drawn up by the accountant and CARDINAL other employees of ORG , on DATE they withdrew ORG CARDINAL from the ORG \u2019s bank account but the applicant \u2019s representative refused to accept the money .","On DATE ORG wrote to the applicant stating that they \u201c wished to pay the damage sustained , in the amount of ORG CARDINAL \u201d , and invited her to visit the Centre for that purpose on DATE . The letter also stated that the ORG was \u201c free from any obligation to pay interest on the amount since the date of the conversation with [ the applicant ] held in the presence of [ the ORG \u2019s ] employees \u201d .","On DATE , upon the applicant \u2019s request , ORG issued a writ of execution ordering ORG to pay to the applicant ORG CARDINAL,CARDINAL principal , ORG CARDINAL in costs , and interest as from DATE .","On DATE the applicant submitted a request to the competent enforcement judge seeking the institution of enforcement proceedings . That was refused and the applicant was informed , upon her complaints to the enforcement judge , ORG and ORG , that under LAW judgments against state bodies was only possible through submission of the writ of execution directly to the state organ concerned . Enforcement proceedings were not provided for . An attachment of the defendant \u2019s bank account was not possible .","NORP The applicant was also informed that the refusal to execute a final judgment could be a punishable criminal offence .","On an unspecified date the applicant complained to ORG , which invited the mayor of the NORP municipality to comment .","On DATE the mayor wrote the following to the Ministry and to the applicant :","\u201c Having studied the [ applicant \u2019s ] request and having discussed the matter with the management of the municipal ORG , we reached the conclusion that the problem is under the jurisdiction of the judicial authorities . The municipal ORG considers that the civil proceedings had been handled wrongly : the [ defendant ] had been ORG , which has no legal personality and does not have its own bank account . For this reason , ORG sees no legal grounds , for purposes of the financial authorities , to effect the payment . Apparently the matter should be examined additionally by the courts . The municipal administration can not interfere in this matter . \u201d","In DATE the applicant submitted a complaint to the prosecution authorities requesting the punishment of those responsible for the failure to enforce the judicial award .","In DATE or DATE she complained of the inactivity of the prosecution authorities .","On DATE a prosecutor requested information from ORG . On DATE the ORG replied to the prosecutor , with a copy to the mayor of GPE . It stated that ORG was not a separate legal person but formed a part of ORG which , in turn , was under the administration and budgetary control of the municipality . Therefore , the applicant could obtain payment by submitting her documents to the municipality of GPE . The date on which that information was transmitted to the applicant is unclear .","On DATE the applicant was heard by a prosecutor .","On DATE the prosecutor terminated the inquiry noting that the applicant had been informed that she had to submit her writ of execution and a copy of the judgment to the municipality of Chirpan .","During the relevant period inflation in GPE was running high and the national currency was depreciating . In particular , on DATE , the date on which ORG judgment was delivered , BGL CARDINAL were necessary to buy one GPE dollar ( ORG ) , in DATE , at the time of the applicant \u2019s attempts to obtain payment , that figure was BGL CARDINAL , on DATE , the date on which the mayor refused to execute the judgment , it was BGL CARDINAL and in DATE the exchange rate was ORG CARDINAL for USD CARDINAL .","As of DATE , ORG CARDINAL became CARDINAL new NORP lev ( ORG ) . On DATE , the date on which the applicant was invited to renew her request for payment before the NORP municipality , ORG was exchangeable for ORG ( i.e. , for BGL CARDINAL ) .","For DATE the statutory interest rate in GPE varied significantly , reaching during a period of DATE in DATE and DATE an average of PERCENT per annum . That was however insufficient to compensate for the loss of value of the NORP lev during that period .","Following the admissibility decision in the present case , on DATE the municipality of GPE paid BGN CARDINAL into a bank account opened by them in the applicant \u2019s name . The amount included ORG CARDINAL in principal , BGN CARDINAL in interest for the period DATE \u2013 DATE and BGN CARDINAL in costs . The applicant was informed by letter .","In accordance with paragraph CARDINAL of Article CARDINAL , a person who has an enforceable pecuniary claim against the ORG or a state body shall receive payment out of funds allocated for that purpose under the institution \u2019s budget .","The writ of execution shall be submitted to the financial department of the institution . If there are no funds available under the budget of the state body concerned , the higher administrative organ should undertake the necessary steps to ensure that funds become available under the budget for DATE .","Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution . Until DATE paragraph CARDINAL of LAW expressly prohibited enforcement proceedings against state institution . Although that provision was repealed in DATE , the legal regime remained unchanged , as paragraph CARDINAL of Article CARDINAL was not amended .","According to ORG and CARDINAL of ORG , a writ of execution is issued in a single copy which must be produced for execution . Where the original has been lost , a duplicata may be issued in special proceedings which require summoning the debtor at an oral hearing .","According to section CARDINAL of LAW , a creditor is entitled to refuse partial payment .","According to section CARDINAL of ORG , if the creditor fails to undertake the measures necessary to receive payment , the debtor may discharge a pecuniary debt by depositing the money in a bank account ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80502","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF MAZEPA v. MOLDOVA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON . She is a second degree invalid .","The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant owns part of a house in which her neighbour ( PERSON ) owns another part . PERSON re - constructed her part of the house without the prior agreement of the applicant and the applicant 's part of the house was seriously damaged as a result .","On DATE the applicant initiated court proceedings claiming damages from V. Relying on an expert 's assessment of the damage caused to the applicant 's house , on CARDINAL DATE ORG awarded her CARDINAL Moldovan lei ( MDL ) ( the equivalent of QUANTITY ( ORG ) at the time ) . No appeal was made and the judgment became final and enforceable DATE .","According to the applicant , she wrote to various ORG authorities requesting the enforcement of the award but it was not enforced . On DATE she informed ORG that the judgment of CARDINAL DATE had not been enforced and asked it to change the manner of enforcing the judgment by transferring ORG 's part of the house to the applicant . She emphasised that her own part of the house had been severely damaged and that the damage had been aggravated with the passage of time , causing a real threat to her life . The applicant relied , inter alia , on LAW ( see paragraph CARDINAL below ) .","On DATE ORG accepted the claim . The new enforcement warrant was submitted to the court on DATE , following which the bailiff requested PERSON to comply with the judgment .","The applicant also requested ORG to transfer the examination of her cases against PERSON , including the enforcement of the judgment of CARDINAL DATE , to another court in view of the inactivity of ORG . On DATE ORG rejected that request as unfounded .","On DATE ORG adopted an additional judgment , awarding the applicant damages ( MDL CARDINAL ) against ORG for the late enforcement of the judgment of CARDINAL DATE . PERSON appealed . On DATE the ORG quashed that judgment and ordered a full re - hearing .","On DATE the bailiff organised an auction for the sale of the part of the house belonging to ORG but nobody offered the minimum asking price set . He then proposed that the court accept the applicant 's request to be given title to that part of the house on account of ORG 's debt to her .","On DATE ORG accepted that request .","In parallel to all the proceedings mentioned above , the applicant initiated administrative proceedings for the annulment of a municipality 's decision adopted in DATE confirming the lawfulness of ORG 's re - construction of the house . On DATE ORG accepted that request and on DATE ORG upheld that judgment . On DATE ORG quashed the CARDINAL judgments and adopted a new one , rejecting the applicant 's claims .","V. lodged a request for the revision of judgments of CARDINAL DATE and DATE because the expert report on the damage had been signed by an expert lacking the required training and ORG had based its judgment of CARDINAL DATE on that report . The report stated the level of training of its author , who was registered by ORG as that of DATE ( highest ) degree expert with DATE work experience . On DATE ORG rejected ORG 's request .","On DATE the ORG accepted PERSON 's request and quashed the judgment of CARDINAL DATE and the decision of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) , ordering a full re - examination of the case in view of the expert 's lack of adequate training . The court accepted PERSON 's claim that she had only found out about the expert 's lack of training in DATE and had thus not exceeded the DATE time - limit for lodging the revision request . The applicant informed the ORG about the quashing in a letter of DATE .","On DATE ORG ordered an expert report to be made . On an unspecified date in DATE ORG ( \u201c ORG \u201d , a ORG institution ) submitted its report to the court . It confirmed that , following the reconstruction of ORG 's part of the house in serious violation of building regulations , the applicant 's part of the house had suffered a major deterioration and had become uninhabitable . New cracks appeared in the wall after a repair , which meant that the process had not yet stabilised . A part of ORG 's house created a particular danger during earthquakes and the applicant 's house had lost all of its resistance to earthquakes . ORG assessed the damage caused to the applicant 's house at MDL CARDINAL ( ORG CARDINAL ) .","According to a statement by the judge in charge of the applicant 's case regarding the proceedings after the revision of DATE , the hearings had to be adjourned ( by DATE on each occasion ) due mainly to the applicant 's representative 's absence on the following dates : DATE ( the first hearing in the re - opened proceedings ) , DATE , DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE .","DATE adjournments had to be ordered at ORG 's request : on DATE , DATE and DATE .","On DATE the applicant requested a new expert report to be drawn up in respect of the damage caused to her part of the house . PERSON supported this request . On DATE the questions for the experts were formulated and on DATE the court ordered the parties to bear equally the experts ' costs . The expert report was sent to the court by ORG ( \u201c IREJC \u201d , a ORG institution ) on DATE , following a visit to the applicant 's part of the house on DATE . The report largely confirmed the findings of the CARDINAL previous expert reports and assessed the damage caused to the applicant 's house at MDL CARDINAL ( ORG CARDINAL,CARDINAL ) . It also found that the process of the deformation of the house had not yet stopped and new cracks had appeared after minor repairs had been undertaken . On DATE the court accepted PERSON 's objections to the expert report and ordered a new report to be drawn up by IREJC . On CARDINAL DATE IREJC sent the case file back to the court without drawing up the report . On DATE the experts charged with drawing up the report were summoned , but they failed to appear on DATE . On DATE PERSON requested another expert report . On DATE the court sent IREJC a request for a new expert report , but on DATE the ORG returned the case file since ORG had failed to pay IREJC its costs , as ordered by the court . The applicant stated that she did not want another report since DATE had confirmed her position . On DATE the court ordered the parties to each bear IREJC 's costs and ordered a new report to be drawn up . In their observations of September CARDINAL the Government informed the ORG that IREJC had not yet drawn up its report and asked for permission to submit it to the ORG when it was ready . No such report has been submitted to date .","The proceedings are still pending before ORG .","The relevant domestic law has been set out in GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) ) .","NORP In addition , the relevant provisions of LAW , applicable at the relevant time , read as follows :","\u201c LAW Examination of civil actions by the court .","The court shall begin the examination of a civil case :","...","CARDINAL ) at the request of the natural or legal person who asks for the protection of his or its rights or interests protected by law ; ...","TITLE CARDINAL","EXECUTION OF COURT JUDGMENTS","Article CARDINAL . Court judgments and decisions of other authorities , which shall be executed .","The following shall be executed in accordance with the rules in the present LAW :","CARDINAL ) NORP judgments ... adopted by courts in civil cases : ...","Article CARDINAL . Documents of forced execution .","The following are considered documents of forced execution :","CARDINAL ) NORP execution warrants ... adopted by courts ... ;","Article CARDINAL . Issuance of an execution warrant .","Execution warrants shall be issued by the court to the creditor after the decision becomes final ...","Execution warrants shall be issued directly to the creditor or , at his or her request , shall be sent for enforcement directly by the court to the territorial subdivision of ORG within ORG .","Article CARDINAL . Submission of the document of forced execution .","The bailiff shall begin the enforcement of court judgments at the request of the persons mentioned in LAW ...","Article CARDINAL . Verification of the execution of the judgment .","The judge shall verify the correct and timely execution of the judgment .","Article CARDINAL . Measures of forced execution .","The following shall be the measures of forced execution :","CARDINAL ) NORP execution against the debtor 's assets through their freezing and sale ; ... \u201d"],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113719","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF MAKHMUDZHAN ERGASHEV v. RUSSIA","importance":3,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE , GPE .","The applicant is an ethnic NORP . He was born and lived in the town of PERSON in the south of GPE . From DATE until DATE the applicant worked at FAC of ORG in PERSON . The majority of the NORP nationals of NORP origin \u2013 PERCENT of GPE \u2019s overall population \u2013 live in the south of the country , in particular , in PERSON and PERSON .","On DATE the applicant arrived in GPE , GPE , in order to accompany his wife \u2019s father who was having medical treatment in a clinic in GPE . According to the applicant , he has not returned to GPE since then . He stayed in GPE and worked as a taxi driver . According to records of the traffic police for GPE and GPE region , he committed minor traffic violations on DATE , CARDINAL and DATE and DATE , as well as in DATE . From CARDINAL DATE to CARDINAL DATE he was officially registered as residing at a certain address in GPE . His wife and CARDINAL children joined him in DATE . His wife obtained NORP citizenship in DATE . His other QUANTITY children and his parents stayed in PERSON .","On DATE the PERSON - Abad regional prosecutor \u2019s office brought criminal proceedings against the applicant on suspicion of embezzlement of ORG funds . The decision stated that the applicant had been appointed a warehouse supervisor at ORG of ORG on DATE and that while in that post he had misappropriated , during the period from DATE to DATE , goods stored at the warehouse in PERSON for which he was responsible at the time , had sold them and used the money so received for his personal needs .","On CARDINAL DATE an investigator at the PERSON - Abad regional prosecutor \u2019s office charged the applicant in absentia , issued an order for him to be remanded in custody , declared him a wanted person and stayed the investigation until he had been arrested . On DATE the investigator rectified the charges against the applicant , following the amendment of LAW , to embezzlement under LAW , which is punishable in particular by imprisonment of DATE .","On DATE the applicant sent an application to the ORG prosecutor \u2019s office , seeking to have the criminal proceedings against him terminated . To demonstrate lack of grounds for suspicion he argued that a government audit carried out in DATE had not revealed any violations at his place of work and that he had been living in GPE at the time of the alleged offence , as confirmed , inter alia , by his passport and his residence registration . Decisions to dismiss his application and to stay the criminal proceedings against him until he had been extradited were communicated to his representatives orally .","On DATE the applicant , who had been placed on an international wanted list , was arrested in the GPE region and placed in a temporary detention facility at the LOC district police department .","On DATE the ORG allowed the LOC prosecutor \u2019s request for the applicant to be remanded in custody pending a decision on his extradition . The ORG decision was upheld on appeal by GPE on DATE . All subsequent applications by the prosecutor \u2019s office for extension of the applicant \u2019s detention pending the extradition proceedings were allowed , except for an application of CARDINAL DATE which was refused by ORG on DATE ( upheld on appeal by ORG on DATE ) and the applicant \u2019s release on bail was ordered . The bail was set at MONEY ( RUB ) . ORG held that if the money was not deposited the applicant should remain in custody until the maximum time - limit for detention had been reached , that is until DATE , and should then immediately be released .","The applicant \u2019s family failed to deposit the sum required and the applicant remained in custody until DATE , when his release was ordered by a deputy prosecutor of the GPE region , subject to an undertaking not to leave his place of residence , appear on summons before the GPE regional prosecutor \u2019s office and abide by the legislation of GPE . The applicant gave the undertaking and was released on DATE .","On DATE a deputy Prosecutor General of GPE lodged a request with a deputy Prosecutor General of GPE , seeking the applicant \u2019s extradition to GPE for prosecution on charges of embezzlement . The request stated , inter alia , that in accordance with LAW , ORG Office guaranteed that the applicant would not be extradited to CARDINAL State without ORG consent , that he would not be prosecuted or sentenced for any other crime committed before his extradition , that he was being prosecuted for a general criminal offence which was not of a political nature , and that he was not being discriminated against on any ground , including that of his ethnic origin . After the trial or , if convicted , after serving his sentence , the applicant would be free to leave the territory of GPE .","On an unspecified date ORG of the Russian Federation made enquiries of ORG on the issue of extradition to GPE . On CARDINAL DATE ORG replied as follows :","\u201c ... ORG has no information which prevents the extradition of the national of GPE M.M. GPE to the law - enforcement authorities of GPE .","At the same time , when taking the ultimate decision on extradition of nationals of GPE , it is necessary to take into account the difficult internal political situation which has emerged in GPE at the present time , as well as the aggravation of inter - ethnic tension , which predetermines a possibility of biased examination of cases against citizens of this country not belonging to the titular ethnic group .","In particular , ORG has information concerning serious breaches in a number of court proceedings against NORP nationals of NORP origin ; cases of intimidation of witnesses and assaults on lawyers are not infrequent . \u201d","On DATE the deputy Prosecutor General of the Kyrgyz Republic provided additional assurances to the deputy Prosecutor General of GPE , stating that the request for the applicant \u2019s extradition had no connection with the events in PERSON in DATE and earlier , that the applicant would not be subjected to torture , violence or other inhuman or degrading treatment or punishment , that he would not be sentenced to death , and that he would be provided with every opportunity to defend himself , including legal aid .","On DATE the deputy Prosecutor General of GPE approved the request of ORG of GPE for the applicant \u2019s extradition . The decision noted that the acts of which the applicant was accused were punishable under LAW of GPE with a penalty exceeding DATE imprisonment , that the prosecution was not time - barred , that the applicant was a national of GPE , that he had not acquired NORP nationality , and that his extradition was not in breach of international agreements or domestic law .","The deputy Prosecutor General of GPE requested the Special Representative of the President of GPE on international cooperation in the fight against terrorism and transnational organised crime to provide assistance , via ORG , in ensuring the observance of the applicant \u2019s rights after his transfer to GPE ( letter CARDINAL\/CARDINAL - CARDINAL of CARDINAL DATE ) .","On DATE the applicant lodged a request with ORG ( ORG ) for refugee status . He stated that if returned to GPE he , as an ethnic NORP , would be in real danger of his life because of the inter - ethnic conflict in the country .","On DATE his application was rejected by the ORG for GPE and GPE region . The ORG noted , in particular , that according to its records , after his entry to GPE on DATE the applicant had gone abroad only once from CARDINAL May to DATE , to GPE . There were cancelled stamps in his passport certifying his exits from and entries to GPE , and also stamps which were not authentic , according to an expert opinion of CARDINAL DATE . CARDINAL pages of his passport were missing . According to the ORG , the applicant \u2019s lengthy fouryear stay in GPE without returning to GPE , where his family had been living , had apparently shown that he had been avoiding entering his country because he was wanted by the law - enforcement bodies , and the fact that he had applied for asylum DATE after the DATE events meant that he had not felt himself to be in any danger . The ORG found that the applicant had come to and stayed in GPE not because he wished to receive asylum but in order to find employment and improve his financial situation . He was not therefore eligible for refugee status .","The ORG reviewed the situation in GPE after the DATE events , including the constitutional referendum and the parliamentary elections . It noted reports by ORG and ORG , as well as the ORG \u2019s development programmes carried out in cooperation with the NORP authorities which were aimed , first of all , at building peace and democratic governance , fighting poverty and working with local communities , and were financed by grants which had doubled during DATE and totalled MONEY in DATE . It further noted that DATE had been declared the Year of Inter - Ethnic Concord and Friendship , with various programmes organised by local authorities , and national and international trade fairs . The ORG considered that the situation in GPE had significantly changed , there had been no interethnic incidents and the Government had been undertaking enhanced measures to ensure the security of its citizens and to improve the social , economic and political situation in the country .","The applicant appealed against the decision of the ORG of GPE and GPE region to the FMS of GPE , which upheld the decision on DATE , noting that the applicant \u2019s fears of persecution on the ground of his ethnic origin had not been justified .","NORP The applicant lodged a court appeal against ORG extradition order . He submitted that , in view of the unstable political situation in GPE and ethnic unrest between the NORP majority and the NORP minority , the decision in question entailed for him a serious risk that he would be subjected to torture . He referred to statements by ORG of DATE , ORG into the events in southern GPE , ORG and other sources .","On DATE GPE examined the applicant \u2019s appeal at an open hearing in the presence of the applicant , his lawyer and the prosecutor . The applicant argued , in particular , that NORP were oppressed and discriminated against in GPE and that he might therefore be subjected to torture or other ill - treatment . ORG noted that the decision for the applicant \u2019s extradition complied with the requirements of LAW and LAW . The decision had been taken by the appropriate authority . The applicant was a national of GPE and had not obtained NORP nationality . There were no criminal proceedings against him in GPE in connection with the acts imputed to him . There was no court decision about the existence or otherwise of impediments to his extradition . Therefore ORG did not find any grounds for refusal of his extradition . It examined the assurances of ORG of GPE and stated that it had no reasons to doubt that they would be observed . It took into account that , according to the information the ORG for GPE and the GPE region had when it made its decision in the applicant \u2019s case , which was upheld by the FMS of GPE , the social , economic and political situation in GPE had normalised since the interethnic clashes in DATE . It also took into account that the applicant was accused of an ordinary crime which had no political or ethnic character , and that it had been committed in DATE , long before the inter - ethnic clashes . The applicant had not claimed that he was being persecuted for political reasons , stating that he had moved to GPE to find employment . Therefore , the fears that he might be subjected to ill - treatment or discrimination on the ground of his ethnic origin or other grounds had not been objectively justified .","ORG further stated that a court appeal against the ORG \u2019s decisions in the applicant \u2019s case to refuse him refugee status could not suspend or block the applicant \u2019s extradition . It noted that while the applicant had arrived in GPE DATE previously for material gain he had applied for refugee status only after his detention , thereby pursuing the aim of delaying his extradition . It further noted that the applicant \u2019s guilt was beyond its scope of examination . It held that the extradition decision was lawful and dismissed the appeal .","On DATE ORG of GPE examined the applicant \u2019s appeal against ORG judgment in which he argued , in particular , that if extradited he would run a real risk of torture because he belonged to the NORP minority , as confirmed by , inter alia , ORG into the events in southern GPE , and that GPE official assurances would not prevent that risk . Having heard the applicant \u2019s counsel and the prosecutor , ORG endorsed the lower court \u2019s findings , noting also that the applicant had left GPE for GPE in order to find employment and not because of persecutions on the ground of his ethnic origin , and that the decision to extradite him had been taken in accordance with LAW between GPE and ORG of DATE , and that the request for extradition had complied with ORG and CARDINAL of LAW on extradition of DATE and LAW . ORG rejected the applicant \u2019s appeal and upheld the lower court \u2019s decision .","On DATE the St Petersburg ORG rejected the applicant \u2019s appeal against the ORG \u2019s decisions . It stated in its judgment that the applicant had submitted at the hearing that he did not fear for the life and health of his children and parents who had stayed in PERSON , that he had not been persecuted on account of his ethnic origin , political or religious grounds , though there had always been tensions between NORP and NORP in everyday life , and he had known about the harassment of NORP in GPE from his friends and brother who had been beaten up during the events in DATE . ORG found that it did not follow from the materials before it that the applicant had left his country and did not wish to return there because of some real events menacing him personally . The absence of a real threat was confirmed , in particular , by the fact that his family , which included minor children , living in PERSON had never been discriminated against . He had failed to submit any evidence that he or his family had been persecuted on the ground of their ethnic origin , or any evidence for such fears . He had referred in general to the situation in the country , without giving any details .","An appeal against ORG judgment lodged by the applicant \u2019s counsel did not comply with the relevant procedural requirements and on DATE ORG refused the applicant \u2019s request for an extension of the time - limit for lodging a proper appeal . Proceedings in which the applicant challenged that finding are pending .","On DATE President PERSON was overthrown after popular demonstrations and a Provisional Government headed by PERSON assumed power .","On DATE which followed inter - ethnic clashes erupted in the south of the country in PERSON and PERSON , in which ethnic NORP and ethnic NORP committed violence against each other .","GPE adopted a new LAW via a DATE referendum . According to ORG in LOC \u2019s ORG ( ORG , the authorities succeeded in creating the necessary conditions for the conduct of a peaceful constitutional referendum despite challenging circumstances .","On DATE GPE held parliamentary elections . The OSCE \/ ODIHR provided a cautiously optimistic assessment of the elections , despite some shortcomings .","On DATE GPE held presidential elections . According to the OSCE \/ ODIHR Election Observation Mission Final Report , \u201c the election was conducted in a peaceful manner , but shortcomings underscored that the integrity of the electoral process should be improved to consolidate democratic practice in line with international commitments . Candidate registration was inclusive , giving voters a wide choice , and the electoral campaign was open and respected fundamental freedoms . These elements , however , were overshadowed by significant irregularities on DATE , especially during the counting and tabulation of votes . \u201d The inauguration of the newly - elected President PERSON PERSON took place on DATE .","ORG into the events in southern GPE ( \u201c ORG \u201d ) was established with a support by the NORP authorities . After broad consultation with numerous international bodies , including the ORG , the LOC , the ORG , the ORG and the office of the ORG High Commissioner for Human Rights , the terms of reference were established and endorsed . The ORG was mandated to investigate the facts and circumstances relevant to incidents that took place in southern GPE in DATE , qualify the violations and crimes under international law , determine responsibilities and make recommendations , particularly on accountability measures , so as to ensure the non - repetition of the violations and to contribute towards peace , stability and reconciliation . The ORG acknowledged the excellent cooperation of the authorities of GPE . It published its report in DATE . The executive summary of the report states , inter alia , as follows :","\u201c CARDINAL . ... The events must be viewed in the context of the historical and political background of the region , particularly the relationship between the communities of ethnic NORP and ethnic NORP . In this regard the ORG notes the underrepresentation of ethnic NORP in public life and the rising force of ethnonationalism in the politics of GPE . The ORG notes further the power vacuum and consequent political rivalries , fragile state institutions and the weak rule of law in southern GPE in the wake of DATE overthrow of the PERSON government .","NORP The events resulted in significant loss of life and injury , of which the majority of victims were ethnic NORP . In total CARDINAL people died . It is expected that this figure will grow but not substantially . CARDINAL people received medical assistance at hospitals . Many CARDINAL of people were displaced . CARDINAL people were displaced to GPE and a further CARDINAL were internally displaced . There was also significant property damage , again to a disproportionately high number of ethnic NORP owned properties . In total CARDINAL properties were damaged . The ORG notes that ethnic NORP also suffered very significant losses , in terms of life , health and property . The ORG has found that both communities suffered loss .","In addition to the documented international and domestic criminal acts , the ORG has found that there have been and still are serious violations of international human rights law committed by the ORG in the aftermath of the events . There is a consistent and reliable body of material which tends to show that acts of torture were committed in detention centres by the authorities of GPE in the aftermath of the DATE events . Of particular concern to the ORG is that such acts of torture are ongoing and that the response of the authorities to allegations of torture has been grossly inadequate .","Criminal investigations and trials which have resulted from the DATE events have been marked by breaches of the ORG fair trial rights . Large scale sweep operations conducted in NORP mahallas on DATE and the smaller scale search operations which then followed have involved ill - treatment and arbitrary arrest and detention . There has been selective prosecution targeting the ethnic NORP minority . Defence lawyers representing ethnic NORP defendants have been subject to improper interference and intimidation .","... The Provisional Government , which had assumed power DATE before the events , either failed to recognize or underestimated the deterioration in interethnic relations in southern GPE . ...","As to conflict prevention and reconciliation , the ORG recommends measures on inclusive state building ; ... GPE should take a strong public stand against extreme nationalism and ethnic exclusivity . ...","NORP ... The government should ensure the conduct of thorough , independent and impartial investigations into crimes or other human rights violations without reference to ethnicity and should consider seeking international assistance to do so . ... The Government should immediately stop all arbitrary arrests , torture in detention and other human rights violations . ... \u201d","In their DATE report \u201c GPE : Dereliction of Duty \u201d ORG stated , in particular , as follows :","\u201c Despite the acknowledgment by a number of officials that torture and other illtreatment in detention continues to be a problem and despite repeated efforts , including issuing decrees and instructions , by the former President and the new Prosecutor General to stop the routine use of beatings and other ill - treatment in order to extract confessions , there appears to be little commitment at regional and local levels to effectively and decisively address and prevent these serious human rights violations . ...","While human rights monitors report fewer arbitrary arrests , nevertheless , DATE on from the DATE violence , torture and other ill - treatment , including beatings , by law enforcement officers unfortunately appear to continue to be routine ... There are serious concerns that while investigating crimes police officers have continued to target NORP and NORP neighbourhoods , threatening to charge them with serious crimes , such as murder , in relation to the DATE violence in order to extort money from them . Those who have returned from DATE work in GPE or GPE or families who have relatives working outside the country are particularly vulnerable to arbitrary detention , intimidation and extortion since they are assumed to have ready access to money and foreign currency . ...","Impunity for law enforcement officers who have perpetrated torture and other illtreatment has long been a serious problem in GPE , especially at the local and regional levels . Since the DATE violence this has become ever more apparent but despite a number of positive initiatives and concrete measures in DATE by the former President and the current Prosecutor General on the prohibition of torture , regrettably only a handful of prosecutions for torture or other ill - treatment in police custody appear to have taken place . ... Given the admissions by ORG and the current and former Presidents that torture and other ill - treatment is widespread the extremely low number of prosecutions of security officers for torture and the absence of any convictions for torture casts doubt on the commitment of the authorities to seriously and effectively redress these crimes and human rights violations . \u201d","In their report \u2018 Distorted Justice\u2019 , published in DATE , ORG noted an impact which the DATE events had had on the problem of torture :","\u201c Lawyers and other observers noted that the problem of torture and illtreatment worsened significantly after the DATE events , and was routine in cases involving ethnic NORP suspects detained on charges unrelated to the DATE violence . In an interview about the use of torture in GPE in DATE , a human rights defender who has researched police torture in GPE for DATE noted :","The DATE events [ exacerbated ] the situation regarding torture and completely untied the hands of the police officers and the security service . We even heard about the use of torture by the tax police . ... Many are convinced that if torture is used against , for example , NORP , then that is normal . \u201d","Human Rights Watch World Report DATE : GPE ( Events of DATE ) contains the following findings concerning the situation in GPE :","\u201c In DATE GPE continued to grapple with the consequences of the DATE violence that erupted between ethnic NORP and NORP in the country \u2019s south , killing CARDINAL people . CARDINAL commissions of inquiry were completed and CARDINAL of criminal investigations continued in DATE , with the justice process skewed to scapegoat ethnic NORP for the violence .","Torture and arbitrary detentions in the context of investigations into the DATE violence are rampant and go largely unpunished . Ethnic NORP in the south are particularly vulnerable to police torture . Violations of international fair trial standards plagued the administration of justice in the south .","...","The authorities opened CARDINAL criminal cases into the DATE violence . Although most of those killed were ethnic NORP , PERCENT of those facing prosecution for homicide were also ethnic NORP .","In DATE trials in connection with the DATE violence continued to be held with violations of international fair trial standards . Defendants , mostly ethnic NORP , are found guilty and sentenced to prison terms ranging from DATE to life primarily based on confessions that many allege were coerced under torture .","...","While local human rights NGOs report that incidents of arbitrary detentions and torture in police custody decreased in DATE in the south , these abuses remain rampant and unpunished , particularly in the context of investigations into the DATE violence . Most judges in such cases dismiss , ignore , or fail to order investigations into torture allegations . In CARDINAL cases police also arbitrarily detained and tortured ethnic NORP men and threatened to charge them in relation to the DATE violence if they did not pay large sums .","ORG research found CARDINAL ethnic NORP died in DATE due to injuries sustained when detained in police extortion schemes . Given the routine use of torture by the country \u2019s law enforcement officials , efforts by the prosecutor \u2019s office to investigate allegations of torture were inadequate . ... \u201d","International Crisis Group LOC report no . CARDINAL of DATE \u201c GPE : widening ethnic divisions in the south \u201d reads , inter alia , as follows :","\u201c GPE \u2019s government has failed to calm ethnic tensions in the south , which continue to grow since the DATE violence , largely because of the state \u2019s neglect and southern ORG anti - NORP policies . PERSON , the country \u2019s second city , where CARDINAL people died in ethnic clashes in DATE , remains dominated by its powerful mayor , an ardent NORP nationalist who has made it clear that he pays little attention to leaders in the capital . While a superficial quiet has settled on the city , neither the NORP nor NORP community feels it can hold . NORP are subject to illegal detentions and abuse by security forces and have been forced out of public life ...","The nationalist discourse that emerged after the PERSON violence unnerved the interim government that had replaced President PERSON in DATE . Until the end of its term in DATE , it was largely ignored , and sometimes openly defied , by NORP Mayor PERSON , the standard - bearer of an ethnic NORP - first policy and the most successful radical nationalist leader to emerge after the killings . This did not change when President PERSON , a northerner , took office in DATE . Senior members of his administration express dismay at tensions in the south but say they have no way of influencing the situation there .","NORP are increasingly withdrawing into themselves . They say they are marginalised by the NORP majority , forced out of public life and the professions ; most LANGUAGE - language media have been closed ; and prominent nationalists often refer to them as a diaspora , emphasising their separate and subordinate status . International organisations report continuing persecution of NORP by a rapaciously corrupt police and prosecutorial system , almost certainly with the southern authorities\u2019 tacit approval .","The flight of many NORP business people and the seizure of GPE businesses have sharply diminished the minority \u2019s once important role in the economy . The sense of physical and social isolation is breeding a quiet , inchoate anger among all segments of the community \u2013 not just the youth , who could be expected to respond more viscerally to the situation , but also among the NORP elite and middle class . ...","The views of southern NORP have also hardened since the violence . Many feel that NORP brought disaster on themselves with an ill - advised power grab in DATE . This version of history has not been proven ; it is privately doubted even by some senior NORP politicians , but hardly ever challenged by them . PERSON enjoys considerable approval among broad segments of southern NORP society \u2013 including among the younger , better educated and urbanised social groups that might have been expected to take a more liberal and conciliatory position .","Ominously , he re - stated and strengthened his tough anti - NORP approach in DATE in a book on the DATE violence . Depicting NORP as an essentially separatist force that threatens GPE \u2019s survival , he stressed the need for ORG ethnic groups to understand their future role would be as subordinates . \u201d","ORG states that the police in GPE are currently almost exclusively ethnically NORP . \u201c The wave of abusive detentions , extortion and torture directed at the NORP community since soon after DATE is widely referred to simply as \u2018 impunity\u2019 . If police abuse and torture are unexceptional , the extent , duration and the clear target of this campaign has been highly unusual . Most long - time observers feel that senior southern politicians and officials continue to countenance abuses in order to ensure police support . With rare exceptions the victims have all been NORP , some as young as CARDINAL . They range from migrant workers , often thought to have large amounts of cash on their return from GPE or elsewhere , to businessmen . \u201d \u201c The government acknowledges the problem of torture and has taken steps to address it , but these have proven almost completely ineffectual . The prosecutor - general issued CARDINAL decrees in DATE aimed at checking and punishing the use of torture and ill treatment of detainees . There have , however , been no successful prosecutions . CARDINAL memorandums of understanding between prosecutors and southern human rights organisations have likewise had little effect . \u201d","The UN Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , PERSON , visited GPE from CARDINAL to CARDINAL DATE at the invitation of the Government , which provided him with unrestricted access to detention facilities . The purpose of the visit was to assess the situation as regards torture and ill - treatment in the country , including conditions of detention , and to identify measures needed to prevent torture and ill - treatment in the future . The report on that mission was presented at the CARDINALth session of ORG and states , inter alia , as follows :","\u201c CARDINAL . GPE is a party to the main ORG human rights treaties prohibiting torture and ill - treatment , including LAW , LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment , the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women . GPE acceded to LAW to LAW in DATE . The ORG is also a signatory to LAW .","NORP ... pursuant to Presidential Decree No . CARDINAL , various public advisory councils were established within ORG office in GPE , PERSON and PERSON , entrusted with monitoring places of detention . In addition , public monitoring councils , which comprise representatives from civil society , were created under ORG , ORG for the Execution of Punishments and ORG to monitor detention facilities and other closed institutions . Furthermore , a draft law on the police force and the prospect of reforming ORG are both under discussion . The draft bill on the national centre for the prevention of torture had been finalized and was to be submitted to ORG for discussion early in DATE . Since DATE , CARDINAL memorandums of understanding had been signed by prosecutors and civil society organizations \u2013 for PERSON - Abad province , for GPE and for PERSON province \u2013 providing for public councils to identify solutions and building confidence in the prosecutorial authorities . The first initiative of the public councils was the installation of closed - circuit cameras in some temporary detention facilities in GPE province .","The Special Rapporteur received numerous accounts and eyewitness testimonies suggesting that torture and ill - treatment had been historically pervasive in the law enforcement sector . This practice has been intensified by the turbulence of DATE with the ousting of President PERSON in DATE , followed by the violence that took place in the LOC in DATE . During the violence in DATE and its aftermath , reports consistently highlighted the frequency and gravity of arbitrary detention , torture and ill - treatment by law enforcement bodies .","Throughout the mission , testimonies of victims and their lawyers pointed to general patterns of torture and ill - treatment committed by police officers after arrest and during TIME of informal interrogation . During interviews with victims , the Special Rapporteur heard multiple allegations of torture that shared the same pattern : asphyxiation with plastic bags and gas masks with no flow of oxygen ; punches and beatings with truncheons ; the application of electric shock and the introduction of foreign objects into the anus , or the threat of rape . ... The Special Rapporteur was told that the use of torture by the criminal investigation police was exacerbated by the heavy reliance on confessions in the judicial system .","The Special Rapporteur has concluded that , in the immediate aftermath of the violence of DATE , there was a significant increase of continued arbitrary arrests and detentions , incidents of forced confession under the use of torture and illtreatment during arrest and while in detention , denial of access to a lawyer of one \u2019s choosing , denial of independent medical aid , threats and extortion of money in exchange for dropping or mitigating charges . These incidents , usually committed by the operative - investigating officers of ORG during TIME of apprehension and interrogation , continued to be widespread throughout DATE .","The Special Rapporteur received reports according to which , in practice , confessions obtained under torture are not expressly excluded as evidence in court . Moreover , the majority of verdicts in criminal cases are mostly based on voluntary confessional statements made during the investigation or at the time of surrender . In addition , the courts encourage this practice by giving undue weight to confessions when evaluating evidence . If a defendant claims during trial that the confession was obtained through torture , the courts either ignore such statements altogether or conduct a superficial inquiry by simply questioning the police officers in court . After the officers deny the use of torture , the judge concludes that the defendant \u2019s allegations are not substantiated and should be treated as an effort to avoid justice .","The Special Rapporteur noted that in contrast to the open recognition of the existence of torture and ill - treatment by the current and former President , the deputy Speaker , the Head of ORG and ORG , he had heard of no \u201c such instructions communicated by the responsible officials of ORG to condemn torture and ill - treatment or to declare unambiguously that torture and ill - treatment by police officers would not be tolerated \u201d , and that it remains to be seen how ORG instructions \u201c will be implemented at the city and provincial levels \u201d .","A report of the ORG High Commissioner for Human Rights , PERSON , on technical assistance and cooperation on human rights for GPE covering the period from DATE to DATE , which was examined by ORG at its CARDINALth session , stated , in particular , as follows :","\u201c CARDINAL . NORP Despite the efforts of the Government to address human rights issues , a number of serious concerns persist , such as the increase in reports of discriminatory practices by government bodies towards minorities , and the ongoing use and practice by law enforcement bodies of ill - treatment and torture while detainees are in custody .","Deficiencies in the administration of justice pose a major impediment to the reestablishment of the rule of law . The judicial system must maintain its impartiality irrespective of the ethnicity of victims , lawyers and defendants . ...","Further to the DATE violence , the authorities took steps to investigate and bring to justice those suspected of involvement in the events . ORG in PERSON and PERSON - Abad reportedly initiated investigations into CARDINAL cases . In cases which have come to trial , most defendants have been ethnic NORP . Scores of individuals wanted for involvement in the DATE violence reportedly remain at large .","Trials of defendants accused of involvement in the DATE violence have failed to uphold basic standards for fair trial , in courts both of first and second instance . Alleged violations of fair trial standards include torture and ill - treatment ...","On DATE , ORG established by President PERSON in DATE presented its report . According to ORG , the violence was instigated by ethnic NORP community leaders and supporters of former president PERSON . The ORG states that members of the provincial government and the security forces failed to respond promptly and prevent the violence . The ORG also found that members of law enforcement tortured detainees , most of whom were ethnic NORP .","On DATE , the Ombudsman of GPE presented his report on his investigation into the DATE events , stating that his office supports the conclusions of ORG , in particular that the conflict was initiated by ethnic NORP provocateurs . According to the conclusion of the ORG \u2019s investigation , the conflict was due to the socio - economic situation in the southern region that originated in the NORP time , when ethnic NORP enjoyed better living standards than ethnic NORP .","There have been concerns about the lack of independence and impartiality of both investigations . CARDINAL members of civil society , who were among members of ORG , expressed concerns about the modalities , composition and the terms of reference of ORG . Both reports largely reflected views held among some ethnic NORP politicians and the majority of the public . Debates in ORG on the findings of ORG were characterized by numerous provocative nationalistic statements and biased remarks regarding the role of ethnic NORP in the violence . ...","In the aftermath of the DATE violence , ORG received numerous reports of arbitrary detention in PERSON and PERSON . In the majority of the cases documented by the ORG , the victims were ethnic NORP . ... There were numerous reports of extortion by police in such cases of detention . ...","During the period under review , PERSON documented cases of torture or illtreatment . The frequency and gravity of allegations raised serious concern . While most cases involved various forms of beatings , the ORG also documented cases of torture in which victims described being subjected to electro - shock , including to the genitals ; suffocation ; sustained beatings ; and death threats . Torture was reportedly often accompanied by ethnicity - based harassment and humiliation .","Concerns about frequent allegations of torture and ill - treatment were compounded by the failure of the authorities to take steps to investigate such allegations , bring to justice perpetrators and provide victims with redress . During the period under review , ORG in ORG did not pursue investigations into allegations of torture , despite the numerous cases in which significant evidence was available and in which complaints had been filed .","... To date , the police , prosecutors and members of the judiciary have not acted upon allegations of torture in the aftermath of the DATE violence .","Since the DATE unrest and particularly following the DATE interethnic violence , there has been growing concern at the rise in discriminatory practices faced by members of minorities at the institutional level . This is increasingly reflected in attitudes within the public at large . In particular , ethnic NORP have faced ongoing discrimination in the aftermath of the DATE inter - ethnic violence .","DATE . In DATE , concern has increased at the growing inter - ethnic tensions in the country , which are contributing indirectly to the rise in internal migration and emigration . Statements by a few officials in various regions of the country have often fuelled the nationalistic discourse and contributed to feelings of vulnerability within the minority communities .","Reports of cases where ethnic minorities are subjected to the illegal seizure of their land , unlawful takeover of their businesses , or physical or verbal threats , are becoming more commonplace . Due to a pervasive fear among victims of such ethnically motivated acts , there is a general reluctance to file complaints with the law enforcement bodies . To date , no criminal case has been brought by the law enforcement authorities under LAW , which proscribes \u201c incitement to inter - ethnic hatred \u201d .","On administration of justice :","( b ) ... In case of retrials related to the DATE events , the hearings should not take place in courts in the south of the country in order to ensure impartiality of judges . Judges should maintain their impartiality irrespective of the ethnicity of victims , lawyers and defendants . To ensure such impartiality , provincial rotation mechanisms of judges and other participants in judicial processes should be adopted .","On torture and detention :","( b ) The Government , prior to the establishment and commencement of functions of the national preventive mechanism under LAW to LAW , should guarantee unrestricted access by civil society monitoring groups to all places of deprivation of liberty ...","On minority rights :","( a ) Utmost attention should be paid to building trust and confidence among communities throughout the country and to ensure the prevention of hate speech , which could fuel further tensions . The Government , at the highest levels , should emphasize that promotion and protection of minority rights are an integral part of and a main priority for peace and reconciliation and a central pillar of the country \u2019s political , economic and security strategies ;","... \u201d","Following the examination of the report ORG adopted , in DATE , a resolution in which it , inter alia , urged \u201c the Government of GPE to ensure that progress is made in improving the human rights situation in the areas of administration of justice , torture and arbitrary detention , the right to adequate housing , the rights of women , minority rights and human rights mechanisms \u201d and \u201c to promote and protect human rights and fundamental freedoms for all , in particular , to address ongoing arbitrary detentions , torture and corruption by law - enforcement and Government officials \u201d .","A report of the ORG High Commissioner for Human Rights on technical assistance and cooperation on human rights for GPE covering the period from DATE , which was examined by ORG at its CARDINALth session in DATE , notes that \u201c serious institutional deficiencies have hampered the delivery of justice and undermined the rule of law , and points out that the lack of progress in addressing these matters impacts on reconciliation and peacebuilding efforts between the ethnic communities , as well as between civil society and authorities , with serious risks for the long - term stability of the country . The report further describes the ongoing practice of arbitrary detention and torture and continued discriminatory patterns based on ethnic grounds . In this context , it highlights institutional shortcomings , lack of capacity and , in some instances , lack of political will to take necessary measures . \u201d It notes that DATE after the signature of the memorandums of understanding between prosecutors and human rights organisations in GPE , GPE and PERSON setting out mechanisms for regular dialogue and cooperation on the prevention and prosecution for torture within the framework of public councils , little substantial progress has been made , due in part to the lack of trust on the part of human rights NGOs in the prosecutorial authorities and the overall lack of strategic engagement by all parties , posing challenges to the effective functioning of the public councils . As regards the installation of closed circuit television cameras in the temporary police detention centres in PERSON - Abad , the report notes that while they \u201c can be an additional measure to prevent torture , it is not a panacea for the human rights violations observed in detention centres , given the potential ease with which the system can be bypassed or disabled . \u201d The report also stated as follows on the PERSON issue :","\u201c CARDINAL . There is a wide gap between the authorities\u2019 view of inter - ethnic relations and those of ethnic minority communities themselves . Authorities paint a positive picture , while communities raise concerns including : ( i ) the need to stop any police misconduct , in particular arbitrary arrest , extortion , ill - treatment and torture ; ... \u201d","In her opening remarks at a press conference on DATE during her visit to GPE , ORG High Commissioner for Human Rights , PERSON , stated , inter alia , as follows :","\u201c ... The most serious problem lies in the failure to implement laws and reforms in line with international standards , as well as to act in accordance with GPE \u2019s new LAW .","Take torture as an example : under international law there is an absolute prohibition of torture . This is reflected in LAW , LAW which categorically prohibits torture and all other forms of cruel , inhuman and degrading treatment and punishment . LAW also recognizes torture as a crime . Yet we continue to receive evidence of torture being committed by state authorities , including CARDINAL cases of alleged torture or ill - treatment DATE in the context of criminal investigations into the DATE violence in GPE and neighbouring regions . This is believed to be only a fraction of the real total .","I was encouraged to hear from the Minister of ORG that in DATE the process of establishing accountability for police officers is starting to produce results , with internal investigations launched in CARDINAL cases , resulting in CARDINAL officers being subjected to criminal investigation , and CARDINAL others being fired from their jobs . It is important that the full details of such cases become known both as a deterrent to other police officers thinking of carrying out acts such as torture or extortion , and as reassurance to the general public who , by ORG own candid admission , have largely lost trust in what should be a key state institution .","I have congratulated GPE on the adoption on DATE of the Law on ORG and Other Cruel , Inhuman and Degrading Treatment \u2013 a result of DATE of concerted efforts by the ORG , the ORG , ORG , civil society and the international community . I hope that this important law will soon be signed by the President , and that subsequent steps will ensure that the new torture prevention body it creates will be impartial , independent and effective .","Those who order or commit torture should be investigated , arrested and charged . I have urged the President to lead the effort to eradicate this intolerable and illegal practice by making clear public statements stressing there will be CARDINAL tolerance for torture from now on . I also note the strong position the Prosecutor - General has taken on preventing torture , issuing CARDINAL decrees on the subject since taking up office in DATE . I have recommended that authority over police detention facilities be transferred from ORG to ORG , and that all detention facilities be opened to independent monitoring .","ORG , especially on ethnic , religious and gender grounds , remains a deeply problematic issue with ethnic and national minorities significantly underrepresented in the executive government and bureaucracy , law enforcement bodies and judiciary .","ORG is particularly evident in ORG , where PERCENT of the population is of NORP origin , but there is not a single NORP judge among the judiciary . I have myself heard the cries for justice from members of the affected communities who have been victimized DATE while the violence was taking place , and in its aftermath . \u201d","This imbalance is reflected in many key national and local institutions including the police ... \u201d","\u201c CARDINAL . No one shall be subject to torture , violence or other severe or humiliating treatment or punishment . \u201d","\u201c CARDINAL . Foreign nationals and stateless persons shall enjoy in GPE the rights and bear the obligations of citizens of GPE , except for cases envisaged by federal law or international agreements entered into by GPE . \u201d","\u201c CARDINAL . In GPE it shall not be allowed to extradite to other GPE those people who are persecuted for political convictions , as well as for actions ( or inaction ) not recognised as a crime in GPE . The extradition of people accused of a crime , and also the handover of convicts to serve sentences in other GPE shall be carried out on the basis of federal law or international agreements entered into by GPE . \u201d","According to LAW , foreign citizens and individuals with no citizenship residing in GPE who have committed a crime outside its borders can be extradited to a ORG seeking their extradition with a view to criminal prosecution or execution of a sentence ( LAW ) .","GPE can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle to stand trial or serve a sentence for a crime punishable under NORP legislation and the laws of the requesting ORG . An extradition on the basis of the reciprocity principle implies that the requesting ORG assures the NORP authorities that under similar circumstances they would grant a NORP request for extradition ( Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL ) .","Extradition can take place where ( i ) the actions in question are punishable by DATE imprisonment or a more severe sentence ; ( ii ) the requested individual has been sentenced to CARDINAL months\u2019 imprisonment or a more severe punishment ; and ( iii ) the requesting ORG guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request , that upon completion of the criminal proceedings and the sentence he or she would be able to leave the territory of the requesting ORG freely and that he or she would not be expelled or extradited to CARDINAL State without the permission of the NORP authorities ( LAW ) .","ORG or his or her deputy decides on extradition requests ( LAW ) . A decision by ORG or his or her deputy may be appealed against before a regional court within DATE of receipt of the notification of that decision ( LAW ) .","The regional court , sitting in a composition of CARDINAL judges , confirms or otherwise the lawfulness and well - foundedness of the extradition decision within DATE of the receipt of the appeal , in a public hearing at which the prosecutor , the person whose extradition is sought and his or her counsel ( if the latter has participated in the earlier proceedings ) may participate ( Article CARDINAL \u00a7 CARDINAL ) . The court does not examine issues of the individual \u2019s guilt , and is limited to establishing whether the extradition decision is compatible with NORP laws and treaties ( LAW ) . The court decides either to declare the extradition decision unlawful and to quash it , or to dismiss the appeal ( LAW ) . The regional court \u2019s decision can be appealed against before ORG within DATE of its delivery ( LAW ) .","The DATE ORG ( \u201c the GPE Convention \u201d ) , to which GPE and GPE are parties , provides as follows :","\u201c CARDINAL . The Contracting Parties shall ... at each other \u2019s request extradite persons who find themselves in their territory , for criminal prosecution or to serve a sentence .","Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . \u201d","\u201c CARDINAL . A person being extradited may not \u2013 other than with the consent of the requested ORG \u2013 be held criminally responsible or punished for any crime committed before the extradition , unless such crime constitutes the reason for such extradition .","Nor may such person be extradited to any third ORG other than with the consent of the requested ORG ... \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-82005","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2007,"docname":"BORDOKINA v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who lives in Molodogvardiysk . ORG ( \u201c the Government \u201d ) were represented by PERSON Y. GPE , their Agent , and PERSON I. NORP , Head of ORG before ORG .","In DATE the applicant deposited CARDINAL karbovantsi ( MONEY in the NORP transitional currency ) with the private commercial bank \u201c LOC \u201d ( the \u201c Bank \u201d ; PERSON \u0431\u0430\u043d\u043a \u201c PERSON ) for a DATE term at an DATE interest rate of PERCENT . At the end of the contract , the ORG paid the applicant CARDINAL NORP hryvnyas ( MONEY ) , referring to the introduction of the new hryvnya currency and a revision of interest rates as allowed by the contract between the parties .","On DATE the applicant instituted civil proceedings in the NORP ORG of Lugansk ( the \u201c ORG \u201d ; ORG \u0440\u0430\u0439\u043e\u043d\u043d\u0438\u0439 \u0441\u0443\u0434 PERSON ) seeking higher payment and damages . Subsequently , she amended her claims on CARDINAL occasion .","On DATE ORG ordered a financial expert assessment , which was received on DATE .","On DATE ORG held a hearing and dismissed the applicant \u2019s claims , finding that the ORG had acted in compliance with applicable law and the contract between the parties . The judgment became final .","Unsatisfied with the outcome of her litigation , the applicant requested the authorities to re - open the proceedings by way of lodging a supervisory protest .","On DATE the Presidium of ORG ( the \u201c ORG ; \u201d ORG \u043e\u0431\u043b\u0430\u0441\u043d\u0438\u0439 \u0441\u0443\u0434 ) quashed the judgment of DATE following a protest introduced by its President and remitted the case for a fresh consideration to ORG .","DATE ORG held CARDINAL hearings .","On DATE ORG allowed the applicant \u2019s amended claims , finding that the ORG had breached the contract . The ORG appealed in cassation .","On DATE ORG upheld the judgment of DATE and it became final . The ORG requested to re - open the proceedings by way of supervisory review .","On DATE the ORG of ORG quashed the rulings of DATE and DATE following a protest lodged by its President and remitted the case to ORG for a fresh consideration .","DATE ORG scheduled CARDINAL hearings , CARDINAL of them being adjourned on account of the defendant \u2019s absence .","On DATE ORG dismissed the applicant \u2019s claims . The applicant appealed .","On DATE ORG upheld this judgment on appeal . The applicant appealed in cassation .","On DATE ORG dismissed the applicant \u2019s appeal in cassation ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110805","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2012,"docname":"CASE OF ALBU AND OTHERS v. ROMANIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria","text":["The applicants are NORP nationals . They are all civil servants employed by ORG .","On DATE the applicants filed a petition with their employer , PERSON , a ORG agency , asking to have their entitlement to certain wage - related rights acknowledged . More specifically , relying on section CARDINAL(CARDINAL ) ( c ) and ( d ) of PERSON no . CARDINAL on the status of civil servants , they asked for CARDINAL allowances to be added to their basic salary , namely a grade supplement and a supplement related to their salary step . The applicants quantified each of these supplements at PERCENT of the basic salary .","The aforesaid allowances were to be paid retroactively , starting from DATE , but also in the future , until the ORG contracts ended .","At the same time , the applicants requested that these entitlements be noted in their employment record books .","On DATE their employer dismissed the petition as ill - founded .","On CARDINAL DATE the applicants contested that decision before the Cara\u015f Severin County Court . They contended that even though , in accordance with Government Emergency Ordinance no . CARDINAL\/CARDINAL , the application of the provisions granting them the rights in question had been suspended until DATE , this did not mean that they were not due for payment starting from DATE , when the suspension had ended , as the suspension of a right was not equivalent to the extinction of that right .","In any event , they considered that the suspension was in breach of Articles CARDINAL and CARDINAL of the LAW , and that the allowances claimed were therefore to be paid retroactively , from DATE .","On DATE ORG dismissed the applicants\u2019 claim . The court acknowledged that , according to the provisions of LAW applicable to the case , the employer was obliged to pay its employees all the allowances derived from the law and from the employment contract . Therefore , the applicants , civil servants , were entitled to receive , in addition to their other salary entitlements , the CARDINAL supplements in question \u2013 the grade allowance and the allowance corresponding to the salary step \u2013 as provided for by section CARDINAL(CARDINAL ) ( c ) and ( d ) .","The CARDINAL supplements were first provided for by LAW no . CARDINAL of DATE , but without any indication as to the exact amount . In fact , none of the subsequent legal texts on civil servants\u2019 salary rights made any reference to a method or criterion for determining the amount of any of the supplements .","Hence , even though PERSON no . CARDINAL expressly stated that a civil servant \u2019s salary was also composed of the grade supplement and the salary - step supplement , the determination of these rights was left to the executive , which was entitled to set out rules for the application of the law . Consequently , the court held as follows :","\u201c In the absence of a legal act issued or adopted by the executive in which the amount of the CARDINAL allowances claimed is defined , the court does not have jurisdiction to determine by itself the amounts , as this would undermine the separation of powers principle by encroaching on the powers of the administrative authorities .","The court therefore holds that in the above - mentioned circumstances , the respondent can not be ordered to pay the allowances claimed before their amount has been determined . \u201d","The applicants appealed against that judgment to ORG , reiterating the arguments they had submitted before the first - instance court . In addition , they stated that under LAW the acquired rights of employees could not be made subject to any limitations . Furthermore , they contended that it was a basic legal principle that laws were made in order to produce effects , it being inconceivable that a legal text would have only a superficial value and not be applicable . They asserted that their right to the allowances they had requested was protected by LAW . CARDINAL to the Convention , in so far as it was a right provided for by law .","The applicants alleged that the interpretation of the applicable legal provisions given by the court in refusing to allow their claims rendered those texts completely ineffective and thus devoid of any substance .","Moreover , such an interpretation was discriminatory and in breach of LAW , in so far as there was consistent national case - law granting other claimants ( also civil servants ) the right to the supplements in question . The discrimination was even more disturbing given that another person , PERSON , employed by the same institution as them , had obtained the allowances following a decision of DATE given by the same first - instance court , the Cara\u015f Severin County Court . That decision had been upheld by ORG on DATE , when it became final .","On DATE the Timi\u015foara ORG dismissed the ORG appeal .","The court noted that there was no legal justification for claiming the allowances in an amount of PERCENT of the basic salary , and consequently for allowing such a claim , as the figure in question was not laid down anywhere in the law .","In that connection , in order to be able to determine the exact amount of the allowances in question , additional legislation was needed , either in the form of legal provisions adopted by the legislature designed to regulate the application of LAW , or in the form of instructions issued by the Government in a separate legal text designed to explain how the law should be applied .","ORG also referred to ORG case - law to the effect that :","\u201c The courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory , and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts . \u201d","Therefore , the court considered that it could not allow the ORG claims , in so far as those claims had not been determined by the competent authorities .","Regarding the divergent case - law referred to by the applicants in their arguments , the court held that in the NORP legal system , legal precedents were not a source of law and therefore could not be taken into consideration .","On the applicability of LAW No . CARDINAL to the LAW , the court mentioned that the applicants had not proved the existence of a \u201c possession \u201d , or at least of a \u201c legitimate expectation \u201d , since the case - law on the matter was not well - established .","Furthermore , the court held that LAW was not applicable to civil servants , as they were appointed to their posts on the basis of PERSON no . CARDINAL . The appointments were thus made by means of individual administrative acts which did not make any reference to the allowances in question and , in any event , had not been contested by any of the applicants at the time of their appointment .","In conclusion , the applicants\u2019 claims were dismissed as unfounded .","LAW entered into force on DATE , once PERSON no . CARDINAL had been enacted . On DATE section CARDINAL of the Statute was amended to provide that , starting from that date , certain allowances were to be included in the salaries of public servants .","\u201c CARDINAL . For discharging their activities public servants shall have the right to a salary composed of the following :","( a ) the basic salary","( b ) seniority allowance","( c ) grade allowance","( d ) step allowance","Public servants shall be granted bonuses and other salary entitlements , in accordance with the law .","The remuneration of public servants shall take place in accordance with [ the criteria ] set forth in the law on the implementation of a uniform remuneration scheme for public servants . \u201d","On DATE , point ( d ) was amended to read \u201c allowance corresponding to the salary step \u201d . With effect from DATE , section CARDINAL became section CARDINAL , while no amendments were made to the content .","The application of these provisions was suspended from DATE until DATE , first by LAW no . CARDINAL of CARDINAL DATE , then by Government Emergency Ordinance no . CARDINAL\/CARDINAL , enacted as PERSON no . CARDINAL\/CARDINAL , and then by Government Ordinance no . CARDINAL\/CARDINAL , enacted as LAW no . CARDINAL\/CARDINAL .","With effect from DATE the CARDINAL allowances , namely the grade supplement and the allowance corresponding to the salary step , were abolished by PERSON no . CARDINAL\/CARDINAL .","The applicants submitted CARDINAL other judgments given by ORG of PERSON , in which the PERSON requests had been granted . In CARDINAL of the judgments , given on DATE by the same panel as the one which sat in the applicants\u2019 case , it was stated , inter alia , as follows :","\u201c It is irrelevant that the legal text did not lay down the exact amount of the salary entitlements in question , as this can not constitute a well - founded reason for dismissing the claims ; such an interpretation would render ineffective the legal provisions concerned , which are part of the positive law , and this would be inconceivable . \u201d","In another judgment submitted by the applicants , ORG held on DATE in a similar case that the claimants , employees of ORG , were entitled to the allowances in question , as the corresponding rights were provided for by the law , it being irrelevant whether their amount was determined or not .","The Government contended that , of the QUANTITY courts of appeal across the country , a number had dismissed similar claims relating to salary entitlements even before DATE , when ORG and ORG had ruled on an appeal in the interests of the law ( see paragraph CARDINAL below ) . These included ORG , ORG and ORG , as well as the courts of appeal in GPE , GPE , PERSON and GPE . The reasons given for dismissing the claims had been identical , resembling those subsequently given in the ruling on the appeal in the interests of the law .","On DATE , noting that since DATE a divergence of case - law had emerged across the country concerning the granting of certain allowances to public servants , ORG applied to ORG and ORG in accordance with the provisions of LAW of ORG , in order to ensure the uniform interpretation and application of the law .","ORG delivered its judgment on DATE , confirming the existence of a divergence in the case - law concerning the interpretation of section CARDINAL(CARDINAL ) ( c ) and ( d ) of Law no . CARDINAL , while also setting out guidelines for a uniform interpretation of the text , as follows :","\u201c For the uniform interpretation and application of LAW ( c ) and ( d ) of PERSON no . CARDINAL , ORG holds that , in the absence of a legal determination of their amount , the grade allowance and the allowance relating to the salary step can not be granted by the judiciary . \u201d","ORG further held that the entitlements claimed by the public servants did not constitute a \u201c possession \u201d , as , in the absence of criteria for their calculation , they were only \u201c virtual rights \u201d .","According to LAW , ORG interpretation of the provisions in question is binding on all the domestic courts . A decision delivered on an appeal in the interests of the law can not alter the outcome of cases already decided .","Following the adoption of the above - mentioned judgment , the divergent case - law on the issue ceased and the domestic courts followed ORG guidelines ( see also PERSON and Others v. GPE ( dec . ) , no . CARDINAL , \u00a7 DATE , DATE ) .","NORP The report states in its relevant parts that , in order for the principle of legal certainty , essential for maintaining confidence in the judicial system and the rule of law , to be achieved , the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner . As the existence of conflicting decisions within the highest courts may be contrary to this principle , it is therefore necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case - law .","In her preliminary assessment on the independence of the NORP judiciary following the visit to GPE in DATE , the Rapporteur stressed that the practice of the domestic courts had been undermined by the absence of a stable legislative framework , resulting in a lack of uniform interpretation and application of the law . The lack of predictability of judicial decisions and the lack of acceptability of judicial decision - making were structural factors that needed to be addressed .","In its relevant parts , the ORG reads as follows :","\u201c ...","While recognising the judges\u2019 power to interpret the law , the obligation of the judges to promote legal certainty has also to be remembered . Indeed legal certainty guarantees the predictability of the content and application of the legal rules , thus contributing in ensuring a high quality judicial system .","ORG will apply the interpretative principles applicable in both national and international law with this aim in mind . ... In civil law countries , they will be guided by case law , especially that of the highest courts , whose task includes ensuring the uniformity of case law .","DATE . ORG should in general apply the law consistently . However when a court decides to depart from previous case law , this should be clearly mentioned in its decision . .... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78982","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF KUZNETSOV AND OTHERS v. RUSSIA","importance":3,"conclusion":"Violation of Art. 9;Violation of Art. 6;Non-pecuniary damage - award","judges":"Christos Rozakis","text":["The applicants are GPE 's Witnesses . The applicant Mr NORP GPE is a representative of ORG of GPE 's Witnesses in GPE . The other applicants are members of the GPE community of GPE 's Witnesses .","DATE the GPE community of GPE 's Witnesses filed CARDINAL applications for State registration with the regional ORG . Their applications were refused on CARDINAL DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , DATE and CARDINAL DATE , CARDINAL May and DATE . Each refusal was justified by reference to alleged formal defects in the registration documents .","The applicants complained to a court . On DATE the ORG of GPE ruled that the refusal of DATE had been unlawful . On DATE ORG upheld this decision and ordered the registration of the GPE community of GPE 's Witnesses . On DATE the community was officially registered by ORG for LOC .","In the applicants ' submission , PERSON , appointed by LOC as Chairwoman of the regional ORG ( \u201c the Commissioner \u201d ) , had attempted on several occasions to initiate criminal proceedings against the GPE community of GPE 's Witnesses on the ground that the community had \u201c lured \u201d young children into their \u201c sect \u201d .","On DATE a senior investigator with the GPE town prosecutor 's office found no indications of a criminal offence and decided not to open a criminal investigation into the activities of the members of the GPE 's Witnesses ' community .","Following the Commissioner 's intervention , the decision of CARDINAL DATE was reversed and an additional inquiry was ordered .","On DATE the deputy GPE town prosecutor again dismissed the allegations against the members of the GPE 's Witnesses ' community on the ground that no evidence pointing towards a criminal offence could be found .","On DATE Mr Z. , a member of the local community of GPE 's Witnesses , acting on behalf of ORG of GPE 's Witnesses , negotiated a lease agreement with PERSON , principal of vocational training college no . DATE in GPE , in respect of the college auditorium and associated facilities . According to LAW , the premises were rented for the purpose of holding religious meetings on DATE TIME on DATE TIME , outside the normal college teaching TIME .","The lease agreement was intended to run from DATE . It also contained a provision that it would be automatically renewed on the same terms and conditions and for the same period unless either side gave DATE advance notice of its intent to terminate the agreement . No such notice appears to have been given by either party . Thereafter the agreement continued to run for the extended DATE period , but with the lessees only authorised to terminate it subject to DATE notice in writing . There was no reciprocal power for the college to terminate the agreement during the extended period .","By DATE the applicants had been using the college facilities for DATE and had paid their rent on time and in accordance with the terms and conditions . As a means of raising additional revenue for the college , its principal entered into similar lease agreements with CARDINAL other organisations .","On DATE the Chief Directorate for Vocational Training and Science of ORG issued an order prohibiting all educational establishments in LOC from renting out their LOC for religious services , meetings , and so forth .","On DATE the Commissioner , together with an unidentified senior police officer , visited Mr U. , principal of college no . CARDINAL , and attempted to persuade him to terminate the lease agreement with the applicants . The principal refused the request . The Commissioner demanded to see the agreement and took a photocopy of it . She then asked a number of detailed questions about the days and times of the GPE 's Witnesses ' meetings . The principal provided the information .","On DATE , in accordance with the lease agreement , the GPE 's Witnesses used the college facilities . CARDINAL consecutive meetings were on the agenda . The first meeting ended without incident .","ORG The second meeting , from TIME , was of a group with special needs ; most of the participants were profoundly deaf . Many of those in attendance were elderly and also had impaired vision . A person trained in sign language provided interpretation at the meeting , the purpose of which was to study the Bible and join in public worship . The meeting was open to the general public : attendants were positioned near the entrance to the meeting place to greet newcomers and assist with seating .","The first part of the meeting was a talk given from the platform by Mr Kuznetsov , who had a mastery of sign language . There were CARDINAL persons present , including all the applicants .","At some time between CARDINAL and TIME the Commissioner entered the foyer which gives access from the street to the meeting place , holding a child by the hand . The applicant PERSON Setdarberdi PERSON , who is profoundly deaf but has no speech impairment , was the attendant on duty . He went out into the foyer to greet the Commissioner and the child and show them to a seat . Realising that the visitor was not deaf , another applicant , Mr PERSON , who did not have impaired speech or hearing , went to assist . He invited the Commissioner into the meeting hall and offered her a chair ; she refused and said that the police were about to arrive .","After this brief exchange the Commissioner left the foyer . The speaker went on with his talk , which ended at TIME","The second part of the meeting was conducted in sign language . This part was in progress , with TIME left and TIME to go before the end of the contracted rental time of TIME , when the Commissioner again entered the foyer , this time without the child . She was now accompanied by PERSON , managing director of the Commissioner - affiliated commercial company Man . PERSON . Power , and by CARDINAL senior police officers , PERSON PERSON , deputy head of ORG of the Traktorozavodskiy Police Department of GPE , and PERSON , a senior district inspector with the same department . Mr Tomskiy was holding and using a camcorder to film .","The Commissioner led the way forward and walked to the threshold of the door into the meeting hall . Mr Tomskiy was a short distance behind , filming with the camcorder . CARDINAL of the applicants , PERSON , who was not hearing - impaired and was sitting close to the door in a position to observe the events , later testified before FAC as follows :","\u201c On DATE a woman accompanied by QUANTITY police officers and a man in plain clothes came to the meeting . They stood in the entrance so that I could n't see the programme . The Commissioner said to CARDINAL of the men ' Stop the meeting ' , but he hesitated and said ' But they are deaf mutes ' .","I told CARDINAL of the congregation to go and get GPE [ GPE ] . When PERSON came out to them there was a conversation with raised voices . The Commissioner asked if there were children in the hall and whether they were all with their parents . Then they asked PERSON for his passport in an unpleasant manner ...","... When I found out who the Commissioner was I was very displeased . I demand that you fire her from her position in ORG ... \u201d","When asked by the judge what the Commissioner had said to the police officer , PERSON responded :","\u201c She said : ' You \u2013 go up on to the stage and say that the congregation has to disperse ' . \u201d","Mr GPE approached the Commissioner and the police officers . As he was standing in the doorway with his back to the meeting hall , the police officer PERSON asked him for his identity papers . He also asked PERSON whether he had a registered residence in GPE . PERSON testified before ORG as follows :","\u201c So I asked him [ GPE ] to show me his passport . It showed that he was registered in LOC . I told him that he did not have the right to conduct arrangements without documents \u201d .","Mr GPE submitted that that statement had been incorrect ; it was true that his registered place of birth was in LOC , but he also had a properly and lawfully registered temporary residence in GPE .","In his testimony before ORG , PERSON continued as follows :","\u201c I told GPE that their organisation did not have the right to conduct its activities without the appropriate documents . He promised to bring the documents to the police station . I asked him to produce the documents . He said ' They exist and are elsewhere ' , but which documents and where he did not say . I asked him for a document confirming his relationship to the organisation ... \u201d","Responding to the judge 's question about the violations of law and order that he had observed , PERSON said :","\u201c Yes , to start with a meeting of an organisation whose activities could not be confirmed by any documents ... By law I had to stop the activities until the documents were produced . \u201d","This was confirmed by the police officer Mr PERSON who spoke as follows before ORG :","\u201c PERSON said that the meeting should no longer be conducted and that documents should be prepared giving permission [ for services of worship in educational establishments ] . \u201d","In their written submissions on the admissibility and merits of the case , the Government indicated that PERSON PERSON had invited Mr Kuznetsov to cancel all events until such time as the appropriate documents had been produced .","Mr GPE submitted that he had been faced with authoritarian demands and the intimidating behaviour of the Commissioner and the police and had thought it best to comply . He described the situation in the following manner :","\u201c I believe that we were conducting the meetings on a lawful basis . Pressure was being put on me . PERSON gave me an official warning . I was afraid they would start removing those present at the meeting by force . PERSON and PERSON were in uniform . I understood that they were in a position of authority and must be obeyed ... \u201d","Mr GPE went to the platform , interrupted the Bible discussion and made an announcement in sign language : \u201c Police . We have to submit \u201d . The attendees offered no resistance . They gathered their personal belongings and filed out of the meeting place and the foyer . The Commissioner and the police officers stood outside the building and watched ; PERSON was no longer filming .","According to the applicants , the Commissioner came up with several conflicting and mutually exclusive versions of her role in the events . Initially she maintained that the visit had been purely for the purpose of fact - finding ; that neither she nor the police had done anything to cause the meeting to be stopped ; and that Mr Kuznetsov had stopped the meeting entirely of his own free will . As the case progressed and more evidence was heard from eyewitnesses who testified to the part played by her and the police , the Commissioner eventually admitted that steps had indeed been taken to stop the meeting ; however , she blamed the police . She insisted that she had made no demands to Mr GPE as the operation had been organised and carried out by the police officials . At the trial , however , she was pressed to say that she had agreed with and supported the police decision . Finally , in explaining her agreement with the police decision and when pressed as to why , as Chairwoman of ORG , she had given her agreement , she gave the following answer :","\u201c I still consider these actions to be lawful \u2013 I was defending the rights of all the children who study at college no . CARDINAL .","[ Question : ] In which documents is information about the danger of GPE 's Witnesses to the neighbourhood contained ?","[ The Commissioner : ] As far as I 'm concerned , the reports in the press are sufficient . \u201d","On DATE , DATE after the disruption of the religious meeting , the principal of college no . CARDINAL informed PERSON that the lease agreement between the college and the community of GPE 's Witnesses would be terminated as of CARDINAL DATE \u201c because of certain irregularities committed by the college administration at the time of its signing \u201d .","On an unspecified date the applicants complained to the GPE town prosecutor about the actions of the Commissioner and the police officers . They requested a criminal investigation into the officials ' actions .","The prosecutor 's office put questions to the Commissioner , Mr PERSON and PERSON PERSON . In their written statements of CARDINAL DATE the officials claimed that they had investigated a complaint by a DATE girl who had been \u201c lured \u201d into the GPE 's Witnesses \u201c sect \u201d . The Commissioner stated that \u201c PERSON and PERSON [ had ] decided to halt the event , which was being held by an unknown organisation in sign language \u201d . PERSON did not deny that he had asked PERSON for documents and told him that the event would be halted until such time as they had been produced . Mr PERSON testified in the same vein . As to the lawfulness of their actions , all CARDINAL officials claimed that , as it was not registered with the ORG as a legal entity , the GPE community of GPE 's Witnesses had no right to hold religious services and that the lease agreement with the college principal had been null and void .","On an unspecified date the prosecutor 's office decided not to institute criminal proceedings against the Commissioner and the police officers .","On DATE the applicants filed a civil complaint with ORG of GPE alleging unlawful actions on the part of the Commissioner .","On DATE the applicants amended their complaint and joined Mr Tomskiy , PERSON , Mr PERSON and PERSON , deputy head of the PERSON police department , as co - defendants . The applicants alleged violations of their rights to freedom of religion and freedom of association , as guaranteed both by LAW and the Convention .","During the trial the presiding judge did not consent to the use of audio - recording equipment provided by the applicants ' lawyers . However , this injunction applied only to advocates and CARDINAL of the applicants was able to record the trial on a personal audio recorder .","On DATE ORG of PERSON gave judgment . It found it established that the Commissioner , PERSON , Mr PERSON and Mr PERSON had arrived at college no . CARDINAL on DATE on a fact - finding mission to check whether a religious meeting had been taking place there . However , as it had been Mr GPE who had got up on the stage and announced , in sign language , that the meeting was to end , ORG found that the applicants had failed to show that the religious meeting had been terminated on the defendants ' orders . As regards the assessment of the evidence given by the applicants , ORG held as follows :","\u201c Assessing the statements given by certain plaintiffs , and in particular by PERSON and PERSON , who claimed that they had heard PERSON giving the police officers the instruction to halt the meeting and that they , in turn , had relayed it to Mr GPE ... the court takes into account the fact that these individuals are interested in the outcome of the proceedings and , for that reason , the court views their submissions critically ...","During the trial , none of the ORG officials ... admitted to taking action to halt the meeting ; their position concurs with the witness statements given by many of the plaintiffs , who confirmed that they had not entered the hall but remained in the foyer \u201d .","ORG dismissed the applicants ' complaint for their failure to prove that the early termination of the meeting had been brought about by the Commissioner and her aides .","The applicants filed a statement of appeal . They pointed to multiple admissions by the Commissioner and the police officers , before ORG and in their statements to the prosecutor dated DATE , that they had instructed PERSON to terminate the meeting . They also submitted that the concordant statements of CARDINAL applicants could not be rejected as those of \u201c interested witnesses \u201d and that ORG had not specified what the applicants ' \u201c interest \u201d had been , given that no claim for damages had been filed .","On DATE ORG , ruling on an appeal by the applicants , upheld the judgment of DATE . ORG repeated verbatim the reasoning of ORG . It did not address the arguments set out in the statement of appeal .","The applicants also complained about the actions of the regional Commissioner to PERSON , Ombudsman of GPE .","On DATE the ORG sent a letter to Mr PERSON , ORG . The ORG strongly condemned the use of derogatory terms such as \u201c sect \u201d and \u201c totalitarian sect \u201d in the documents issued by ORG officials . In its relevant part the letter read as follows :","\u201c ... In particular , the letter from the deputy Prosecutor General , PERSON . PERSON , to the Chairwoman of ORG in GPE , PERSON . V.Gorina , was widely distributed ... It recommended using as reference material on the activity of the Jehovah 's Witnesses the book An Introduction to Sectarianism by A. Dworkin , and the handbook GPE and Occult - Related Religious Organisations in GPE , prepared by ORG of the Moscow Patriarchate [ of ORG ] ...","The publication referred to in the letter is highly condemnatory in respect of certain faiths . It reflects the judgment of CARDINAL religious organisation about others and its contents serve to prove the ' authenticity ' of CARDINAL religion and the ' falseness ' of the other(s ) ...","The situation is further aggravated by the fact that PERSON 's letter was used in trials where it was portrayed as reflecting the official stance taken by ORG of GPE . For example , in GPE , in the course of examination of a complaint by the local community of GPE 's Witnesses against the Chairwoman of ORG , the latter constantly referred to PERSON 's book as a handbook recommended by ORG that contained reliable information on the activity of so - called destructive sects , including the community of GPE 's Witnesses . This was used to justify the extremely heavy - handed conduct of the municipal authorities towards the GPE 's Witnesses , in particular their breaking - up , with the aid of the police , of the believers ' prayer meeting being held on the LOC which they had been renting for an extended period of time . \u201d","Article CARDINAL guarantees freedom of religion , including the right to profess either alone or in community with others any religion or to profess no religion at all , to freely choose , have and share religious and other beliefs and to manifest them in practice .","The ORG may not interfere with the activities of religious associations provided that they comply with the law ( section CARDINAL \u00a7 CARDINAL ) . ORG and other public officials may not use their position to foster any specific attitude towards a religion ( section CARDINAL \u00a7 CARDINAL ) .","Religious associations may take the form of either a religious group or a religious organisation ( section CARDINAL \u00a7 CARDINAL ) . A religious group carries on its activities without ORG registration and without obtaining legal entity status ( section CARDINAL \u00a7 CARDINAL ) . The right to use rented property for religious purposes is conferred only on registered religious organisations ; religious groups may only use premises provided by participants ( section CARDINAL ) .","Services of worship and other religious rites and ceremonies may be performed without interference in buildings and structures intended for worship and their adjacent areas , and in other LOC made available to religious organisations for these purposes ( section CARDINAL \u00a7 CARDINAL ) .","A court of general jurisdiction may hear complaints about actions or decisions of ORG and public officials which infringe citizens ' rights or freedoms or prevent citizens from exercising their rights and freedoms . It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions ( section CARDINAL ) .","LAW prohibits structural units of political parties , political and religious movements and organisations from being set up and operated in GPE and municipal educational establishments and education management bodies ( section CARDINAL \u00a7 CARDINAL ) .","An educational establishment may lease and rent out property . Rental income must be used for educational needs ( section CARDINAL \u00a7 CARDINAL ) .","On DATE a deputy President of ORG ruled on the complaint brought by the local authorities of PERSON against an elder of the local community of GPE 's Witnesses who had allegedly failed to give notice of a religious meeting to the local authorities :","\u201c ... according to LAW on freedom of conscience and religious associations , the phrase ' without obstruction ' means that no permission from , or clearing of the matter with , the secular authorities is required for performing religious ceremonies on premises provided [ for that purpose ] . \u201d","On DATE a deputy President of ORG ruled on a similar complaint brought by the authorities of ORG against a GPE 's Witness in connection with an allegedly unauthorised religious gathering :","\u201c According to LAW on freedom of conscience and religious associations , religious services and other religious rites and ceremonies can take place without any interference ... in other places made available to religious organisation for that purpose ... Therefore , the local religious organisation was not required to inform the ORG authority of its gathering . \u201d"],"violated_articles":["6","9"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98621","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF KHODZHAYEV v. RUSSIA","importance":3,"conclusion":"Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-4;Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in GPE , GPE . He is currently residing in GPE .","The applicant is a practising NORP . He states that he has not been a member of any political organisations , including PERSON ut - GPE ( \u201c ORG \u201d ) , an NORP organisation banned in GPE , GPE and NORP republics , but has nonetheless been persecuted by the Tajikistani authorities on account of presumed membership of that organisation .","By a decision of CARDINAL DATE ORG instituted criminal proceedings against the applicant on account of his membership of \u201c the illegal extremist - religious party ' PERSON \u201d . The decision stated that the applicant had committed a number of serious and particularly serious crimes , namely , incitement to overthrow the political regime in NORP and dissemination of material containing incitement to religious hatred . On DATE ORG placed the applicant on a search list , drew up an arrest warrant in his name and suspended the investigation because the applicant 's whereabouts were unknown .","The applicant fled to GPE in DATE .","DATE and DATE the applicant was kept in detention in GPE with a view to his extradition . He was subsequently released because no formal request for his extradition was received .","The applicant registered his place of residence in GPE with the relevant authorities .","On DATE the applicant was arrested by servicemen of ORG of ORG and police of LOC .","In TIME of CARDINAL DATE the applicant was questioned in the absence of a lawyer . The servicemen who carried out the interview threatened to use violence against the applicant and his family unless he voluntarily agreed to leave GPE for NORP . According to the applicant , he was not informed of the reasons for his arrest in the course of the interview . Neither did he have access to a lawyer during DATE in detention .","On DATE the Odintsovo Town Court of the Moscow Region ( \u201c the ORG \u201d ) ordered the applicant 's placement in custody pending his extradition . The term of detention was not specified .","DATE and DATE the applicant was kept in a temporary detention facility of ORG of the ORG . In the meantime his wife was expelled to NORP .","On DATE the Prosecutor General of NORP sent a request for the applicant 's extradition to ORG and enclosed a copy of the decision of DATE to charge the applicant with membership of a proscribed organisation and copies of the search and arrest warrants .","On DATE the Deputy Prosecutor General of GPE ordered the applicant 's extradition to NORP to face criminal prosecution . The order stated that the applicant had been charged with membership of a proscribed religious - extremist organisation and dissemination of material containing incitement to religious hatred .","The applicant challenged the extradition order of DATE in court .","On DATE ORG upheld the order of DATE . It reasoned that there were no legal grounds impeding the applicant 's extradition to NORP because the applicant was a NORP national and his request for political asylum had been rejected . The applicant 's claims that he was not guilty of the crimes of which he had been charged had been examined and dismissed \u201c on the ground that issues of falsification of charges in his respect by law - enforcement agencies of NORP [ were ] not subject to examination in the course of [ that ] court hearing \u201d . It further stated that allegations of persecution on religious grounds had not been confirmed by reliable evidence , and concluded as follows :","\u201c [ Mr ] PERSON does not have refugee status in GPE , has not been and is not being persecuted on grounds of his race , religion , citizenship , nationality or association with a particular group [ and ] has not applied for NORP citizenship or political asylum . \u201d","On DATE ORG of GPE examined an appeal by the applicant against the judgment of CARDINAL DATE and dismissed it , reproducing the reasoning of ORG verbatim .","On DATE the applicant lodged a request for political asylum with ORG of ORG ( \u201c the GPE FMS \u201d ) .","On DATE the applicant requested protection from ORG of the ORG High Commissioner for Refugees ( \u201c the ORG \u201d ) . It appears that ORG staff were not allowed to visit the applicant over DATE .","On DATE the GPE ORG refused to grant the applicant political asylum . On an unspecified date the applicant was notified of that decision .","The applicant challenged the GPE ORG 's decision of DATE in court . On an unspecified date the ORG of GPE refused to admit the applicant 's statement of claim because he had failed to pay the court fee . The applicant appealed .","On DATE ORG quashed the decision of ORG of GPE and ordered it to admit the applicant 's statement of claim with no court fee . It appears that the proceedings challenging ORG decision are now pending before ORG of GPE .","On DATE ORG staff interviewed the applicant .","On DATE an investigator from ORG , having obtained a prosecutor 's approval , issued an arrest warrant in respect of the applicant .","In DATE the applicant arrived in GPE illegally looking for well - paid employment . During DATE the applicant filed no request to register himself as a temporary resident with NORP migration offices . Neither did he lodge a request for asylum . The applicant did not have a migration card .","On DATE the applicant was arrested in GPE pursuant to LAW as a person put on an international wanted list .","On DATE the applicant was released from custody because no request for his extradition had been received .","On DATE ORG requested ORG to extradite the applicant .","On DATE the NORP police were instructed to search for the applicant .","On DATE the applicant was arrested by servicemen of ORG and the police .","On DATE the applicant was questioned by an official of the PERSON prosecutor 's office . The written statement signed by the applicant certified that he was fluent in LANGUAGE and did not need an interpreter . The statement reads , in so far as relevant , as follows :","\u201c ... I am aware of the fact that my name has been put on a wanted list in NORP . I can not give any details concerning the criminal case against me in NORP . The investigative documents from NORP that I have been provided with contain my personal data but I did not commit the crimes mentioned in them . I can not submit more information on the substance of the criminal case against me .","... I am not being persecuted in NORP for political reasons . I am a NORP national and I have not applied for political asylum or refugee status to any agencies , consulates , embassies or representative offices . \u201d","On DATE ORG held the hearing and examined the PERSON prosecutor 's office 's request to authorise the applicant 's placement in custody pending extradition . The request that mentioned the fact that the applicant had been suspected of serious and particularly serious crimes in NORP was read out in the courtroom . In the document entitled \u201c Decision concerning the choice of custodial detention as a preventive measure \u201d ORG observed that the applicant was suspected of creating a criminal organisation , inciting to racial and religious hatred and calling for the overthrow of the NORP constitutional regime and ordered the applicant 's placement in custody pursuant to ORG . ORG reasoned that the applicant was a foreign national , had no permanent employment or place of residence and , unless detained , might abscond , continue his illegal activities or interfere with the course of criminal proceedings . The applicant was advised of his right to appeal against the decision before ORG within DATE .","On DATE ORG requested ORG to extradite the applicant as a person charged with terrorism - related crimes .","On DATE ORG ordered the applicant 's placement in custody pending extradition pursuant to ORG and CARDINAL of the ORG . The document was entitled \u201c Decision concerning the choice of custodial detention as a preventive measure \u201d . The applicant was advised of his right to appeal against the decision before ORG within DATE .","The applicant did not appeal against ORG decisions of DATE and DATE .","On DATE the applicant argued for the first time that in NORP he had been persecuted on political grounds in his letters to ORG and ORG .","On DATE the NORP Deputy Prosecutor General granted ORG request and ordered the applicant 's extradition . The applicant was advised of his right to appeal against the order within DATE .","On DATE the applicant appealed against the extradition order .","On DATE the GPE ORG received the applicant 's request for temporary asylum .","On DATE ORG dismissed the applicant 's appeal against the extradition order .","On DATE the applicant appealed against the judgment of CARDINAL DATE .","On DATE ORG dismissed the applicant 's appeal and upheld the judgment of CARDINAL DATE . On DATE the applicant was served with the appeal court 's decision .","On DATE ORG received the applicant 's counsel 's request to allow ORG staff to visit the applicant . A request made by ORG reached ORG only on DATE . The request did not contain the personal details of the staff in question . As soon as those details had been communicated by ORG , ORG issued a permit to visit the applicant .","On an unspecified date ORG informed the prosecutor 's office of LOC that the applicant was eligible for international protection .","On DATE the applicant requested the GPE FMS to grant him refugee status .","On DATE officials of the GPE ORG visited the applicant in the remand prison and interviewed him .","The applicant was provided with ample opportunities to substantiate his fears of persecution in NORP . He was interviewed by ORG officials in this respect on several occasions .","On DATE the GPE FMS , having thoroughly studied the applicant 's request , dismissed it and refused to declare the applicant a refugee . The applicant appealed against that decision .","On DATE the ORG of GPE refused to admit the applicant 's appeal against the GPE ORG 's decision of DATE and invited the applicant to eliminate the discrepancies in his appeal by DATE .","On DATE the ORG of GPE ruled that the applicant 's appeal against ORG decision should not be examined because the applicant had failed to eliminate the discrepancies referred to in the ruling of DATE .","On DATE the applicant 's request for temporary asylum was dismissed .","On DATE ORG quashed the ruling of DATE and remitted the matter for fresh examination at first instance .","On DATE the ORG of GPE dismissed the applicant 's appeal against the GPE ORG 's decision of DATE .","LAW ORG governs the application of preventive measures . Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A request for placement in custody should be lodged by a prosecutor ( or an investigator or inquirer with a prosecutor 's prior approval ) LAW CARDINAL \u00a7 CARDINAL ) . The request should be examined by a judge of a district court or a military court of a corresponding level ( LAW ) . A judge 's decision on placement in custody may be challenged before an appeal court within DATE ( Article CARDINAL \u00a7 CARDINAL ) . The period of detention pending investigation of a crime can not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level ( LAW ) . Further extensions up to DATE may be granted on an investigator 's request approved by a prosecutor of GPE only if the person is charged with serious or particularly serious criminal offences ( LAW ) .","LAW ORG lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged . Acts or omissions of a police officer in charge of the inquiry , an investigator , a prosecutor or a court may be challenged by \u201c parties to criminal proceedings \u201d or by \u201c other persons in so far as the acts and decisions [ in question ] touch upon those persons ' interests \u201d ( LAW ) . Those acts or omissions may be challenged before a prosecutor ( LAW ) . Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings , or to discontinue them , or any other decision or inaction capable of impinging upon the rights of \u201c parties to criminal proceedings \u201d or of \u201c hindering an individual 's access to court \u201d may be subject to judicial review ( LAW ) .","Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to decide on the measure of restraint in respect of the person whose extradition is sought . The measure of restraint is to be applied in accordance with the established procedure ( LAW ) .","ORG examined the compatibility of LAW ORG with LAW and reiterated its constant case - law that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .","In ORG view , the guarantees of the right to liberty and personal integrity set out in DATE and LAW , as well as the legal norms of LAW of the ORG on preventive measures , were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG , or in excess of the time - limits fixed therein .","The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .","ORG dismissed the request on the ground that it was not competent to indicate specific criminal - law provisions governing the procedure and time - limits for holding a person in custody with a view to extradition . That was a matter for the courts of general jurisdiction .","In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .","By a decision ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 ) of DATE ORG of GPE granted ORG request and classified a number of international and regional organisations as terrorist organisations , including ORG ( also known as ORG ) , and prohibited their activity in the territory of GPE . It held in relation to ORG that it aimed to overthrow non - NORP governments and to establish \u201c NORP governance on an international scale by reviving a Worldwide NORP Caliphate \u201d , in the first place in the regions with predominantly NORP populations , including GPE and other members of ORG .","Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the rights of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :","\u201c Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ... ,","An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .","NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...","that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...","the execution of the expulsion order is suspended until a decision under CARDINAL is taken . \u201d","ORG for Human Rights issued a Recommendation ( CommDH(CARDINAL)CARDINAL ) on DATE concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :","\u201c CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . \u201d","For other relevant documents , see the ORG 's judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG DATE ...","DATE . When performing actions requested under LAW , to which GPE and GPE are parties , a requested official body applies its country 's domestic laws ( LAW ) .","Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .","NORP The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .","NORP The person detained pending extradition pursuant to LAW CARDINAL of LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE from the date of placement in custody ( Article CARDINAL \u00a7 CARDINAL ) .","Conclusions and Recommendations : NORP , issued by ORG on DATE ( CAT \/ C \/ TJK \/ CO\/CARDINAL ) , refer to the following areas of concern regarding the human - rights situation in the country :","\u201c The definition of torture provided in domestic law ... is not fully in conformity with the definition in LAW , particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity .","...","There are numerous allegations concerning the widespread routine use of torture and ill - treatment by law enforcement and investigative personnel , particularly to extract confessions to be used in criminal proceedings . Further , there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment .","...","The ORG is also concerned at :","( a ) The lack of a legal obligation to register detainees immediately upon loss of liberty , including before their formal arrest and arraignment on charges , the absence of adequate records regarding the arrest and detention of persons , and the lack of regular independent medical examinations ;","( b ) Numerous and continuing reports of hampered access to legal counsel , independent medical expertise and contacts with relatives in the period immediately following arrest , due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials ;","( c ) Reports that unlawful restrictions of access to lawyers , doctors and family by ORG agents are not investigated or perpetrators duly punished ;","( d ) The lack of fundamental guarantees to ensure judicial supervision of detentions , as the ORG is also empowered to exercise such oversight ;","( e ) The extensive resort to pretrial detention that may last DATE ; and","( f ) The high number of deaths in custody .","...","There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the LAW by both law enforcement officials and investigative bodies .","...","There are reports that there is no systematic review of all places of detention , by national or international monitors , and that regular and unannounced access to such places is not permitted . \u201d","Amnesty International in its document \u201c LOC : Summary of Human Rights Concerns : DATE \u201d describes the situation regarding freedom of religion in NORP as follows :","\u201c Members of religious minorities and human rights defenders were concerned that decisions taken by the authorities restricted freedom of religion and belief . During DATE unregistered FAC were closed down or demolished in the capital , GPE . ... A proposed new law on religion raised fears that unregistered religious activity would be banned . The draft law proposed stringent registration requirements which would make it very difficult for religious minorities to apply or re - apply for legal status . It also proposed to limit the number of registered places of worship and to ban missionary activity . Pending the adoption of the new law the government was not accepting new applications for legal status from religious groups .","...","In DATE ] ORG on freedom of religion or belief , PERSON , published a report on her visit to NORP earlier in DATE . The report 's conclusions emphasized the \u201c need to devise educational policies aimed at strengthening the promotion and protection of human rights and eradicating prejudices , which are incompatible with the freedom of religion or belief \u201d . The conclusions also stressed that registration procedures for religious groups should be straightforward and that \u201c [ ORG should not be a precondition for practising one 's religion \u201d . The Special Rapporteur recommended that the Tajikistani authorities ensure that \u201c any measure taken to combat acts of terrorism complies with their obligations under international law , in particular international human rights law , refugee law and humanitarian law . \u201d She stressed that \u201c an independent , neutral and impartial judiciary and prompt access to a lawyer [ were ] vital to safeguarding also the freedom of religion or belief of all individuals and religious communities \u201d .","The World Report Chapter : NORP by ORG , released in DATE , describes the human - rights situation in the country as follows :","\u201c Religious Freedom","At this writing , the government had not yet sent to parliament a controversial draft law on religion that had been sharply criticized in DATE . Under the draft law , all religious groups must reregister and meet such onerous conditions as providing the address of any person who , at any point during DATE , has been a member . The draft also prohibits foreigners from chairing religious organizations .","...","Actions in the Name of Countering Terrorism and Extremism","Following a recommendation by the prosecutor general , ORG designated PERSON , a group that supports the reestablishment of the ORG , or NORP state , by peaceful means , an \" extremist \" organization . The government continued to arrest alleged PERSON ut - GPE members and convict them either of sedition or incitement to racial , ethnic , or religious hatred , often simply for possessing the organization 's leaflets .","...","Torture and Deaths in Custody","NORP 's definition of torture does not comply fully with ORG recommendations to the country in DATE . In a positive move , in DATE the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings .","Experts agree that in most cases there is impunity for rampant torture in NORP . In CARDINAL of the few cases that reached the courts , CARDINAL policemen in GPE province were convicted in DATE for ill - treating minors ; CARDINAL of the CARDINAL received a DATE prison sentence , and the other a suspended sentence .","NGOs and local media reported CARDINAL deaths in custody in DATE , including the death from cancer of the ex - deputy chair of ORG Revival PERSON . The party alleged his arrest in DATE was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery .","In DATE decision ( PERSON v. NORP ) ORG found that NORP violated the rights , including freedom from torture , of CARDINAL applicants , CARDINAL of them minors when they were arrested . NORP failed to cooperate with the committee 's consideration of the complaint . Similar violations were established in DATE decision ( NORP and GPE v. NORP ) \u201d .","The DATE GPE ORG on ORG , released on DATE , provides the following information in relation to NORP :","\u201c NORP ... is an authoritarian state , and political life is dominated by President PERSON and his supporters ...","The government 's human rights record remained poor , and corruption continued to hamper democratic and social reform . The following human rights problems were reported : ... torture and abuse of detainees and other persons by security forces ; threats and abuse by security forces ; impunity of security forces ; lengthy pretrial detention ; denial of right to fair trial ; harsh and life - threatening prison conditions ; prohibited international monitor access to prisons ; ... restrictions on freedom of religion , including freedom to worship ; ...","The law prohibits ... practices [ of torture and other cruel , inhuman , or degrading treatment or punishment ] ; however , security officials reportedly employed them . Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture .","Security officials , particularly from ORG ( ORG ) , continued to use beatings or other forms of coercion to extract confessions during interrogations . Beatings and other mistreatment were common also in detention facilities . A DATE study by ORG , a local NGO , credibly found a bias in the criminal justice system toward law enforcement officials exacting confessions from those who are arrested . Articles in the criminal code do not specifically define torture , and the country 's law enforcement agencies have not developed effective methods to investigate possible violators .","...","ORG ( ORG ) continued to refuse access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions . Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions , but their representatives were limited to administrative or medical sections , and they were accompanied by ministry of justice personnel . The government has not signed an agreement with ORG ( ICRC ) to allow free and unhindered access to prisons and detention centers , and ORG 's international monitoring staff has not returned to the country since departing in DATE .","During DATE detainees and inmates complained of harsh and life - threatening conditions , including overcrowding and lack of sanitary conditions . Disease and hunger were serious problems , but outside observers were unable to assess accurately the extent of the problems because of lack of access . Organizations that work on prison issues reported that infection rates of tuberculosis and HIV was significant , and that the quality of medical treatment was low .","...","The government has not substantially altered LAW ( ORG ) since the NORP period , and the criminal justice system failed to protect individuals from arbitrary arrest or detention . There were few checks on the power of prosecutors and police to make arrests .","...","Victims of police abuse may submit a formal complaint in writing to the officer 's superior . However , most victims chose to remain silent rather than risk retaliation by the authorities .","...","Prosecutors are empowered to issue arrest warrants , and there is no requirement for judicial approval of an order for pretrial detention . The law allows police to detain a suspect without a warrant in certain circumstances , but a prosecutor must be notified within TIME of arrest . Pretrial detention may last DATE in exceptional circumstances . Local prosecutors may order pretrial detention for DATE ; subsequent detentions must be ordered by progressively higher level prosecutors . A defendant may petition for judicial review of a detention order . However , judges rarely questioned detention decisions , and observers regarded this review as a formality .","Individuals have the right to an attorney upon arrest , and the government must appoint lawyers for those who can not otherwise afford CARDINAL . In practice the government did not always provide attorneys , and those it did provide generally served the government 's interest , not the client 's . There is no bail system , although criminal case detainees may be released conditionally and restricted to their place of residence pending trial . According to the law , family members are allowed access to prisoners only after indictment ; officials occasionally denied attorneys and family members access to detainees . The authorities held many detainees incommunicado for long periods without formally charging them .","...","Although the law provides for an independent judiciary , in practice the executive branch and criminal networks exerted pressure on prosecutors and judges . Corruption and inefficiency were significant problems .","PERSON gives the prosecutor a disproportionate degree of power in relation to judges and defense advocates . This power includes control of the formal investigation and oversight of the entire case proceedings . \" Supervisory powers \" provided by law allow prosecutors to protest a court decision outside of normal appeal procedures . Prosecutors effectively can cause court decisions to be annulled and reexamined by higher courts indefinitely after appeal periods have expired . These powers are an impediment to establishing an independent judiciary .","The president is empowered to appoint and dismiss judges and prosecutors with the consent of parliament . Judges at all levels often were poorly trained and had extremely limited access to legal reference materials . Low wages for judges and prosecutors left them vulnerable to bribery , which remained a common practice . Judges were subject to political influence .","Trials are public , except in cases involving national security . The authorities have denied access to monitoring organizations to trials without cause . A panel consisting of a presiding judge and CARDINAL \" people 's assessors \" determines guilt or innocence . Qualifications of the assessors and how they are determined is unclear , but their role is passive , and the presiding judge dominates the proceedings .","According to the law , cases should be brought before a judge within DATE after indictment ; however , most cases were delayed for DATE . Under the law , courts appoint attorneys at public expense ; however , in practice authorities often denied arrested persons access to an attorney .","Those who were indicted were invariably found guilty . Judges often gave deference to uncorroborated testimony of law enforcement officers , especially members of the [ ORG ] , and often discounted the absence of physical evidence .","According to the law both defendants and attorneys have the right to review all government evidence , confront and question witnesses , and present evidence and testimony . No groups are barred from testifying , and , in principle , all testimony receives equal consideration . The law provides for the right to appeal . The law extends the rights of defendants in trial procedures to all citizens .","...","The constitution provides for freedom of religion ; however , in practice the government continued to impose restrictions and respect for religious freedom continued to deteriorate .","ORG , a committee of NORP clergy , provides interpretations of religious practice that imams throughout the country are required to follow . While the council is officially an independent religious body , in practice it is heavily influenced by the government . ORG ( ORG ) at ORG is responsible for general regulation of all religious organizations . The ORG , in consultation with local authorities , registers and approves all religious places of worship . For NORP , the ORG controls all aspects of participation in the hajj , including choosing participants . President PERSON established a ORG during DATE to guide religious policy .","The government continued to impose limitations on personal conduct and to restrict activities of religious groups that it considered \" threats to national security . \" ... Government officials visited mosques on a regular basis to monitor activities , observe those who attended the mosques , and examined audio and video materials for evidence of extremist and antigovernment material . The ORG continued to test imams on their religious knowledge and to ensure they followed official positions on religious issues .","...","Government concerns about foreign influence resulted in restrictive measures against minority religious groups . The government continued its ban on ORG [ Hizb utTahrir ] , which it classified as an extremist NORP political movement , and authorities introduced restrictive measures against another NORP group , the NORP . ... \u201d"],"violated_articles":["3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57905","languageisocode":"ENG","respondent":"ESP","branch":"CHAMBER","date":1994,"docname":"CASE OF L\u00d3PEZ OSTRA v. SPAIN","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"","text":["PERSON , a NORP national , lives in PERSON ( GPE ) .","At the material time she and her husband and their CARDINAL daughters had their home in the district of \" Diputaci\u00f3n del Rio , PERSON \" , QUANTITY from the town centre .","ORG The town of PERSON has a heavy concentration of leather industries . Several tanneries there , all belonging to a limited company called ORG , had a plant for the treatment of liquid and solid waste built with a ORG subsidy on municipal land QUANTITY away from the applicant \u2019s home .","ORG The plant began to operate in DATE without the licence ( licencia ) from the municipal authorities required by LAW on activities classified as causing nuisance and being unhealthy , noxious and dangerous ( \" LAW \" ) , and without having followed the procedure for obtaining such a licence ( see paragraph CARDINAL below ) .","Owing to a malfunction , its start - up released gas fumes , pestilential smells and contamination , which immediately caused health problems and nuisance to many PERSON people , particularly those living in the applicant \u2019s district . The town council evacuated the local residents and rehoused them free of charge in the town centre for DATE , DATE and DATE . In DATE the applicant and her family returned to their flat and lived there until DATE ( see paragraph CARDINAL below ) .","ORG On DATE , following numerous complaints and in the light of reports from the health authorities and ORG ( GPE para el ORG y la Naturaleza ) for the GPE region , the town council ordered cessation of CARDINAL of the plant \u2019s activities - the settling of chemical and organic residues in water tanks ( lagunaje ) - while permitting the treatment of waste water contaminated with chromium to continue .","There is disagreement as to what the effects were of this partial shutdown , but it can be seen from the expert opinions and written evidence of DATE , produced before the ORG by the ORG and the applicant ( see paragraphs CARDINAL below ) , that certain nuisances continue and may endanger the health of those living nearby .","ORG Having attempted in vain to get the municipal authority to find a solution , PERSON lodged an application on DATE with ORG , seeking protection of her fundamental rights ( section CARDINAL of PERSON CARDINAL\/CARDINAL of DATE on the protection of fundamental rights ( \" PERSON CARDINAL\/CARDINAL \" ) - see paragraphs CARDINAL below ) . She complained , inter alia , of an unlawful interference with her home and her peaceful enjoyment of it , a violation of her right to choose freely her place of residence , attacks on her physical and psychological integrity , and infringements of her liberty and her safety ( Articles CARDINAL , CARDINAL para . CARDINAL , CARDINAL para . CARDINAL and CARDINAL of the LAW - see paragraph CARDINAL below ) on account of the municipal authorities\u2019 passive attitude to the nuisance and risks caused by the waste - treatment plant . She requested the court to order temporary or permanent cessation of its activities .","ORG The court took evidence from several witnesses offered by the applicant and instructed the regional Environment and ORG to give an opinion on the plant \u2019s operating conditions and location . In a report of DATE the agency noted that at the time of its expert \u2019s visit on DATE the plant \u2019s sole activity was the treatment of waste water contaminated with chromium , but that the remaining waste also flowed through its tanks before being discharged into the river , generating foul smells . It therefore concluded that the plant had not been built in the most suitable location .","ORG endorsed PERSON application . However , the Audiencia Territorial found against her on DATE . It held that although the plant \u2019s operation could unquestionably cause nuisance because of the smells , fumes and noise , it did not constitute a serious risk to the health of the families living in its vicinity but , rather , impaired their quality of life , though not enough to infringe the fundamental rights claimed . In any case , the municipal authorities , who had taken measures in respect of the plant , could not be held liable . The non - possession of a licence was not an issue to be examined in the special proceedings instituted in this instance , because it concerned a breach of the ordinary law .","ORG On DATE PERSON lodged an appeal with ORG Tribunal Supremo - see paragraph CARDINAL below in fine ) . She maintained that a number of witnesses and experts had indicated that the plant was a source of polluting fumes , pestilential and irritant smells and repetitive noise that had caused both her daughter and herself health problems . As regards the municipal authorities\u2019 liability , the decision of LOC appeared to be incompatible with the general supervisory powers conferred on mayors by LAW , especially where the activity in question was carried on without a licence ( see paragraph CARDINAL below ) . Regard being had to Article CARDINAL para . CARDINAL ( article LAW , inter alia , the town council \u2019s attitude amounted to unlawful interference with her right to respect for her home and was also an attack on her physical integrity . Lastly , the applicant sought an order suspending the plant \u2019s operations .","ORG On DATE ORG at ORG filed pleadings to the effect that the situation complained of amounted to arbitrary and unlawful interference by the public authorities with the applicant \u2019s private and family life ( DATE the LAW taken together with LAW and CARDINAL - see paragraph CARDINAL below ) . The court should accordingly grant her application in view of the nuisance to which she was subjected and the deterioration in the quality of her life , both of which had moreover been acknowledged in the judgment of DATE . On CARDINAL March Crown Counsel supported the suspension application ( see paragraph CARDINAL above and paragraph CARDINAL below ) .","ORG In a judgment of CARDINAL DATE ORG dismissed the appeal . The impugned decision had been consistent with the constitutional provisions relied on , as no public official had entered the applicant \u2019s home or attacked her physical integrity . She was in any case free to move elsewhere . The failure to obtain a licence could only be considered in ordinary - law proceedings .","ORG On DATE PERSON lodged an appeal ( recurso de amparo ) with ORG , alleging violations of LAW ( right to physical integrity ) , LAW ( right to private life and to inviolability of the family home ) and LAW ( right to choose freely a place of residence ) of LAW ( see paragraph CARDINAL below ) .","On DATE the court ruled that the appeal was inadmissible on the ground that it was manifestly ill - founded . It observed that the complaint based on a violation of the right to respect for private life had not been raised in the ordinary courts as it should have been . For the rest , it held that the presence of fumes , smells and noise did not itself amount to a breach of the right to inviolability of the home ; that the refusal to order closure of the plant could not be regarded as degrading treatment , since the applicant \u2019s life and physical integrity had not been endangered ; and that her right to choose her place of residence had not been infringed as she had not been expelled from her home by any authority .","ORG In DATE CARDINAL sisters - in - law of PERSON , who lived in the same building as her , brought proceedings against the municipality of PERSON and ORG in ORG of ORG ( Tribunal Superior de Justicia ) , alleging that the plant was operating unlawfully . On DATE the court , noting that the nuisance had continued after DATE and that the plant did not have the licences required by law , ordered that it should be closed until they were obtained ( see paragraph CARDINAL below ) . However , enforcement of this order was stayed following an appeal by the town council and ORG . The case is still pending in ORG .","ORG On DATE the applicant \u2019s CARDINAL sisters - in - law lodged a complaint , as a result of which Lorca investigating judge no . CARDINAL instituted criminal proceedings against ORG for an environmental health offence ( LAW - see paragraph CARDINAL below ) . The CARDINAL complainants joined the proceedings as civil parties .","DATE , the judge decided to close the plant , but on DATE the measure was suspended because of an appeal lodged by ORG on DATE .","ORG The judge ordered a number of expert opinions as to the seriousness of the nuisance caused by the waste - treatment plant and its effects on the health of those living nearby .","An initial report of CARDINAL DATE by a scientist from ORG who had a doctorate in chemistry stated that hydrogen sulphide ( a colourless gas , soluble in water , with a characteristic rotten - egg smell ) had been detected on the site in concentrations exceeding the permitted levels . The discharge of effluent containing sulphur into a river was said to be unacceptable . These findings were confirmed in a supplementary report of DATE .","In a report of CARDINAL DATE ORG stated that the levels of the gas probably exceeded the permitted limits but did not pose any danger to the health of people living close to the plant . In a second report of DATE the institute stated that it could not be ruled out that being in neighbouring houses TIME a day constituted a health risk as calculations had been based only on a period of TIME a day for DATE .","Lastly , the regional Environment and ORG , which had been asked to submit an expert opinion by the PERSON municipal authorities , concluded in a report of CARDINAL DATE that the level of noise produced by the plant when in operation did not exceed that measured in other parts of the town .","ORG The investigation file contains several medical certificates and expert opinions concerning the effects on the health of those living near the plant . In a certificate dated CARDINAL DATE PERSON , a paediatrician , stated that PERSON daughter , PERSON , presented a clinical picture of nausea , vomiting , allergic reactions , anorexia , etc . , which could only be explained by the fact that she was living in a highly polluted area . He recommended that the child should be moved from the area .","In an expert report of DATE ORG in GPE indicated that gas concentrations in houses near the plant exceeded the permitted limit . It noted that the applicant \u2019s daughter and her nephew , PERSON , presented typical symptoms of chronic absorption of the gas in question , periodically manifested in the form of acute bronchopulmonary infections . It considered that there was a relationship of cause and effect between this clinical picture and the levels of gas .","ORG In addition , it is apparent from the statements of CARDINAL police officers called to the neighbourhood of the plant by CARDINAL of the applicant \u2019s sisters - in - law on DATE that the smells given off were , at the time of their arrival , very strong and induced nausea .","ORG On DATE PERSON and her family were rehoused in a flat in the centre of PERSON , for which the municipality paid the rent .","The inconvenience resulting from this move and from the precariousness of their housing situation prompted the applicant and her husband to purchase a house in a different part of town on DATE .","ORG On DATE the judge confirmed the order of CARDINAL DATE and the plant was temporarily closed .","ORG The relevant Articles of the LAW provide :","\" Everyone shall have the right to life and to physical and psychological integrity , without being subjected to torture or inhuman or degrading punishment or treatment under any circumstances . The death penalty shall be abolished except where it is provided for by military criminal law in time of war . \"","\" Everyone has the right to liberty and security . ... \"","\" CARDINAL . The right to honour and to private and family life and the right to control use of one \u2019s likeness shall be protected .","The home shall be inviolable . It may not be entered or searched without the consent of the person who lives there or a judicial decision , except in cases of flagrant offences . ... \"","\" NORP citizens shall have the right to choose freely their place of residence and to move around the national territory ... \"","\" CARDINAL . Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it .","The public authorities , relying on the necessary public solidarity , shall ensure that all natural resources are used rationally , with a view to safeguarding and improving the quality of life and protecting and restoring the environment .","Anyone who infringes the above provisions shall be liable to criminal or , where applicable , administrative penalties as prescribed by law and shall be required to make good any damage caused . \"","Law CARDINAL\/CARDINAL provides that certain fundamental rights shall be safeguarded by the ordinary courts . The rights protected in this way include inviolability of the home and freedom to choose one \u2019s place of residence ( section CARDINAL(CARDINAL ) ) . However , under transitional provision CARDINAL(CARDINAL ) of the PERSON on ORG of DATE , its application is extended to the other rights secured in ORG DATE ) .","Complaints against decisions of administrative authorities affecting the rights of the individual may be lodged with the administrative division of the appropriate ordinary court ( section CARDINAL ) , without its first being necessary to exhaust the administrative remedies ( section CARDINAL(CARDINAL ) ) . The procedure followed is an expedited one with shorter time - limits and exemption from certain procedural steps ( sections CARDINAL and CARDINAL ) .","In the writ the individual may apply to have the impugned decision stayed , and the court rules on such applications by means of a separate , summary procedure ( section CARDINAL ) .","An appeal lies to ORG ( section CARDINAL ) , which hears such appeals in expedited proceedings .","ORG In the field of environmental protection the ORG and the autonomous communities have enacted many provisions of different ranks in law : LAW ( see paragraph CARDINAL above ) ; PERSON CARDINAL\/CARDINAL of CARDINAL DATE on toxic and dangerous waste ; LAW Decree DATE on environmental impact assessment and LAW of DATE on atmospheric pollution control .","ORG The provisions most frequently relied on in the instant case are LAW on activities classified as causing nuisance and being unhealthy , noxious and dangerous approved in Decree CARDINAL\/CARDINAL of DATE .","The purpose of this decree is to prevent plant , factories , activities , industries or warehouses , whether public or private , from causing nuisance , impairing normal environmental health and hygiene or damaging public or private property or entailing serious risks to persons or property ( Regulation CARDINAL ) . Regulation CARDINAL extends the scope of the regulations to cover noise , vibrations , fumes , gases , smells , etc .","Siting of the activities in question is governed by municipal by - laws and local development plans . At all events , factories deemed to be dangerous or unhealthy can not in principle be built QUANTITY from the nearest housing ( Regulation CARDINAL ) .","ORG The local mayor is empowered to issue licences for carrying on these activities , to supervise the application of the aforementioned provisions and to impose penalties where necessary ( LAW ) .","The procedure for obtaining such licences has several stages , including mandatory consultation of a provincial committee as to the suitability of the safety systems proposed by the applicant in his description of the project . Before the LOC are brought into use they must undergo a compulsory inspection by a local - authority technician ( Regulations CARDINAL - CARDINAL ) .","An appeal lies to the ordinary courts against decisions to grant or refuse licences ( Regulation CARDINAL ) .","When a nuisance occurs , the mayor may order the party responsible for it to take steps to eliminate it . If these are not taken within the time specified in the regulations , the mayor may , in the light of the expert opinions obtained and after hearing the person concerned , either impose a fine or temporarily or permanently withdraw the licence ( LAW ) .","ORG Article CARDINAL bis was added on DATE by the PERSON making urgent reforms to part of LAW ( CARDINAL\/CARDINAL ) . It provides :","\" Anyone who , in breach of environmental protection legislation or regulations , causes to be released or directly or indirectly releases into the atmosphere , the soil or ... waters emissions or discharges of any kind that are likely seriously to endanger human health or seriously to interfere with the conditions of animal life , forests , natural sites or cultivated areas , shall be liable to a sentence of CARDINAL months\u2019 imprisonment ( arresto mayor ) and a fine of MONEY .","A more severe penalty ( TIME CARDINAL years\u2019 imprisonment ) shall be imposed where an industrial plant is operating illegally , without having obtained the necessary administrative authorisations , or where express orders of the administrative authorities requiring modification or cessation of the polluting activities have not been complied with or where untrue information has been given about the GPE environmental impact , or where an inspection by the administrative authorities has been obstructed .","...","In all the cases referred to in this LAW , temporary or permanent closure of the establishment may be ordered ... \""],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101584","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF PUGACH AND OTHERS v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants took part in the cleaning - up operation at the GPE nuclear disaster site . They were registered disabled and became entitled to various social benefits , including food allowance .","On unspecified dates they sued the competent authorities for adjustment of the DATE food allowance in line with the inflation rate .","By CARDINAL separate judgments of CARDINAL DATE , one in favour of PERSON and another in favour of the remaining applicants , the ORG of LOC upheld their actions in part . The court ordered the local department of ORG to pay CARDINAL MONEY ( RUB ) to PERSON and RUB CARDINAL,CARDINAL.CARDINAL to each of the remaining applicants in DATE disability pension payments , to be adjusted in accordance with legal requirements . The court further ordered the local welfare authority to provide DATE the ORG with the documents necessary to make the payments . It also awarded RUB PERSON Mr Pavlenko and RUB CARDINAL,CARDINAL.CARDINAL to each of the CARDINAL other applicants in respect of the outstanding benefits , to be paid by ORG of GPE .","The judgments were not appealed against and became final on DATE .","The enforcement proceedings were opened and the lump sums and the DATE payments were made in accordance with these judgments . Thus , as from DATE all the applicants were receiving the DATE payments in good time . On DATE the applicants ( except for Mr Pavlenko ) received RUB CARDINAL,CARDINAL.CARDINAL each . On DATE Mr Pavlenko received RUB CARDINAL due to him under the judgment of CARDINAL DATE .","On DATE ORG applied to ORG requesting to institute supervisory - review proceedings in respect of the judgments in the applicants ' favour .","On DATE the Presidium of ORG , by CARDINAL separate judgments , quashed the awards of CARDINAL DATE and remitted the cases for a fresh examination . The ORG found that the lower court had erred in applying the provisions of LAW . CARDINAL - CARDINAL \u201c On ORG as a Result of the Chernobyl Nuclear Power Station Explosion \u201d ( \u201c the Chernobyl Law \u201d ) and , as a result , incorrectly determined the defendant authority in the case . The ORG had not specified a due defendant .","NORP In DATE ORG discontinued the DATE payments in respect of food allowance due to the applicants under the quashed judgments . Instead , the authorities started to pay the applicants DATE disability benefits in accordance with the relevant legislation .","On DATE ORG discontinued the proceedings in all cases except for that of PERSON , due to the applicants ' failure to appear before the first instance court . On DATE the proceedings in Mr PERSON 's case were discontinued by ORG on the same ground .","In DATE ORG of GPE brought proceedings against all applicants claiming repayment of the lump sums they had received pursuant to the quashed judgments . On DATE ORG rejected the claim . It appears that the judgment was not appealed against and became final .","The relevant domestic law governing the supervisory review procedure at the material time is summed up in the ORG 's judgment in the case of GPE v. GPE ( no . CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102272","languageisocode":"ENG","respondent":"SVK","branch":"COMMITTEE","date":2010,"docname":"CASE OF IVAN v. SLOVAKIA","importance":4,"conclusion":"Violation of Art. 6-1","judges":"J\u00e1n \u0160ikuta;Lech Garlicki","text":["The applicant was born in DATE and lives in GPE .","CARDINAL .","On DATE the applicant filed an action with ORG . He claimed the ownership and restitution of a motor car .","On DATE the applicant modified his claim and asked for leave to join another person as a defendant . ORG granted the request .","On DATE ORG remitted the case file to ORG which decided on the defendant 's appeal on DATE .","On DATE an expert was asked to prepare an opinion . The expert opinion was submitted on DATE .","On DATE ORG found that ORG had violated the applicant 's right under LAW to a hearing within a reasonable time .","ORG held that the case was not particularly complex and that the applicant by his conduct had not contributed to the length of the proceedings . Substantial delays imputable to ORG had occurred . The proceedings had lasted DATE and no decision had been delivered on the merits .","The Constitutional Court awarded CARDINAL NORP korunas ( SKK ) to the applicant as just satisfaction in respect of non - pecuniary damage . It also ordered ORG to avoid any further delay in the proceedings and to reimburse the applicant 's legal costs .","On DATE ORG dismissed the applicant 's claim . The applicant appealed .","On DATE ORG upheld the judgment . The decision became final on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22316","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"DANCY v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress;Nicolas Bratza","text":["The applicant , PERSON , is a GPE national , born in DATE and currently serving a sentence of life imprisonment in FAC Full GPE . He is represented before the ORG by PERSON , a solicitor practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant had a history of psychiatric illness . On DATE , he went to the police station where he confessed that he had attacked a man , PERSON , in the building where he lived as he thought the man had accused him of stealing his television . PERSON was found dead with multiple depressed skull fractures consistent with use of a hammer .","On DATE , the applicant pleaded guilty to manslaughter on grounds of diminished responsibility and was sentenced by the judge to a term of life imprisonment . The judge declined to set a relevant period for deterrence and retribution ( the \u201c tariff \u201d ) . His sentencing remarks were","\u201c ... you have pleaded guilty to the crime of manslaughter on the basis of diminished responsibility . It was a horrendous crime committed with great violence . I bear in mind everything which I have read about you in the reports . I accept that your distress when you realised what you had done was genuine and that your remorse for it is genuine . Nevertheless , it is a very serious crime indeed and your mental state is such that though you are not a mentally sick person you present a continuing danger to the public because of your liability to fits of explosive temper unless you take regularly your proper medication . I am satisfied therefore that a sentence longer that would be necessarily appropriate to punish you having regard to the seriousness of the offence , is necessary to protect the public from serious harm . The sentence of the court upon you therefore is CARDINAL of life imprisonment .","[ Addressing leading counsel for the applicant ] I have considered the question of making it a discretionary life sentence under LAW . I do not consider that appropriate for the reasons which I have explained . \u201d","By letter of CARDINAL DATE , the applicant was informed by ORG that as a tariff had not been set under LAW of LAW DATE by the trial judge he was to be treated as a mandatory life prisoner and the Secretary of ORG would proceed to fix his tariff . He was informed of the trial judge \u2019s view , given in a recent report , that DATE was an appropriate period and was given an opportunity to make written representations to the Secretary of ORG .","In or DATE , the Secretary of ORG set the applicant \u2019s tariff at DATE . He had been advised that the applicant should originally have been treated as a discretionary life prisoner by the trial judge who should himself have fixed as tariff at trial . For that reason , he regarded himself as bound to follow the trial judge \u2019s view .","On DATE , the applicant was informed of this decision and told that as his tariff had already expired ( in DATE ) it was no longer a factor in his continued detention .","On DATE , the applicant lodged an appeal against sentence , alleging that the trial judge should have specified the DATE tariff at the time the sentence was passed and that had the period been so specified he would have been treated as a discretionary life prisoner and not a mandatory life prisoner . Permission to appeal was granted on DATE .","In its judgment of DATE , ORG upheld the appeal . Lord Justice PERSON said :","\u201c It seems to this ORG , from the sentencing observations of the learned judge , that , although he referred to the gravity of the offence and the danger then presented by the appellant , he was not seeking to say that , in this case , life should mean life . Indeed , his recent recommendation to the ORG Secretary that a period of DATE would be appropriate for retribution and deterrence is quite inconsistent with such having been his intention at that time .","It is not clear whether the judge \u2019s attention was drawn to ORG and , in any event , he certainly did not have the advantage of the observations of this Court in GPE , which was decided in DATE , after the learned judge passed sentence . Had he had that advantage , it seems to us very unlikely that he would have expressed himself quite as he did in his sentencing remarks . The consequence , in our judgment , is that a period of DATE ought to have been expressed by the learned judge at the time sentence was passed , in accordance with ORG and in accordance with what now appears in the judgment of this Court , in GPE . Accordingly , this appeal will be allowed , to the extent that a DATE tariff period will be specified ... The consequence of this is , for the avoidance of doubt , that he will become a discretionary life prisoner and can and should be treated by ORG accordingly . \u201d","The applicant was immediately re - categorised as a discretionary life prisoner by ORG .","On DATE , the applicant \u2019s case was reviewed by ORG , at an oral hearing . He appeared in person and was represented by his solicitor . He was entitled to adduce evidence and to cross - examine witnesses . It did not direct release , finding that the applicant remained a risk . It did recommend to the Secretary of ORG that his case be reviewed in DATE as he had nearly completed the recommended offence related programmes and as he had been disadvantaged in not obtaining a review DATE before the expiry of the tariff as his tariff had only been fixed recently .","The applicant \u2019s case was reviewed by ORG at an oral hearing held on DATE . By decision dated DATE , ORG declined to direct the applicant \u2019s release as it concluded that the applicant remained a danger to the public . It recommended that the next review take place in DATE as considerable further offence - related , treatment \/ work programmes still needed to be undertaken e.g. further work on anger management and relationship issues as well as attendance on an Extended Sex Offender Treatment Programme . It noted that the applicant had acknowledged during the proceedings that neither release nor transfer to open conditions was appropriate at this stage . It did recommend that he be transferred to a Category C prison ( lower security ) to facilitate further treatment work and this was implemented . The applicant \u2019s next review was scheduled for DATE .","On DATE , the applicant signed the DATE review board summary setting out proposals for further treatment , indicating that he fully agreed with the recommendations .","The applicant has now been transferred to a Category C prison .","LANGUAGE law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of CARDINAL known as detention during Her Majesty \u2019s pleasure ( section CARDINAL(CARDINAL ) of ORG ) ; in respect of offenders between the age of DATE , custody for life ( section CARDINAL(CARDINAL ) of LAW DATE ) , and in respect of offenders aged CARDINAL and over , life imprisonment ( section CARDINAL(CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .","Mandatory life sentences are fixed by law , in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( e.g. manslaughter , rape or robbery ) . The principles underlying the imposition of a discretionary life sentence are :","Discretionary life sentences are indeterminate in order that \u201c the prisoner \u2019s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large \u201d ( R v. PERSON [ DATE ] CARDINAL Cr . App . Rep. CARDINAL , p. CARDINAL ) .","Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty \u2019s pleasure have a \u2018 LOC set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change , most notably following the coming into force on DATE of LAW DATE ( \u201c the DATE LAW ) , which was in force at the relevant time . The provisions of the DATE Act were replaced by ORG LAW ) from DATE .","Pursuant to section CARDINAL of the CARDINAL Act , the trial judge in sentencing a person to a term of discretionary life imprisonment in open court after a trial was given the power to fix the tariff .","The role of the trial judge in this respect was clarified by ORG in a Practice Direction ( Crime \u2013 Life sentences ) [ DATE WLR CARDINAL ] . Paragraph CARDINAL stated :","\u201c The judge is not obliged by statute to make use of the provisions of section DATE when passing a discretionary life sentence . However the judge should do so , save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone , irrespective of the risk to the public . In such a case , the judge should state this in open court when passing sentence . \u201d","In DATE , the case of NORP v. PERSON ( CARDINAL ORG R(S ) ORG said concerning ORG and the DATE Act :","\u201c The scheme of the LAW is that the judiciary should specify the period which the prisoner should serve , and that period should be appropriate to the punishment or retribution required and the need to deter the prisoner and others from committing similar grave offences . This period is usually referred to as the tariff period . Once that period has expired the prisoner can expect to be released on licence if ORG is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined ( see section CARDINAL(CARDINAL)b ) . There is thus a clear division of function . The judges are to decide the period which the prisoner is to serve by way of punishment and deterrence . ORG must decide whether he still presents a danger to the public and , if he does not , he must be released . That means , save in cases of most exceptional gravity , where the judge thinks that a prisoner should remain a prisoner for the rest of his normal life , he should specify a period under the LAW . \u201d","In cases of mandatory life sentences , it is for the Secretary of ORG to fix the tariff after consulting the trial judge and the Lord Chief Justice . He is entitled to depart from the judicial view .","Pursuant to section DATE ( CARDINAL ) of the DATE Act , ORG had a duty to advise the Secretary of ORG with respect to any matter referred to it by him which was connected with the early release or recall of prisoners .","ORG Chairman appointed CARDINAL members of ORG to consider discretionary life cases . They comprised the Discretionary Lifer Panel ( \u201c DLP \u201d ) . Pursuant to ORG DATE which came into force on DATE , a discretionary life prisoner was entitled to , amongst other things , an oral hearing , disclosure of evidence before ORG and legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who had written reports about him . A reasoned decision by the ORG was delivered within DATE of the hearing . Prior to DATE , the duty to release discretionary life prisoners was dealt with by LAW , which provided that where a discretionary life prisoner had served his tariff and ORG had directed his release , it was the duty of the Secretary of ORG to release him on licence .","Section CARDINAL ) provided :","\u201c The ORG shall not give a direction ... unless \u2013","( a ) NORP the Secretary of ORG has referred the prisoner \u2019s case to the ORG ;","( b ) ORG is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . \u201d","A discretionary life prisoner may require the Secretary of ORG to refer his case to ORG , after the end of the period of DATE beginning with the disposal of a previous reference to ORG ( section CARDINAL ( CARDINAL ) ( b ) of the DATE Act , now LAW ( CARDINAL ) ( b ) of LAW ) .","The regime applicable to mandatory life prisoners was , however , preserved within LAW . LAW of the DATE Act provided insofar as relevant :","\u201c ( CARDINAL ) NORP If recommended to do so by ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . \u201d","The provisions concerning oral hearings and the requirement for regular reviews were not extended to mandatory life prisoners and ORG was not given any power to direct their release ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23704","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2003,"docname":"GRI\u0160ANKOVA AND GRI\u0160ANKOVS v. LATVIA [Extracts]","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicants , born in DATE and DATE respectively , are a mother and her son . They are NORP citizens of NORP origin , and live in GPE ( GPE ) .","The facts of the case , as submitted by the parties , may be summarised as follows .","The second applicant has been studying at secondary school no . CARDINAL in GPE since DATE . It is a state school , maintained by the GPE municipal council and providing both compulsory primary education DATE ) and secondary education DATE ) . The language of instruction in this school is NORP .","On DATE , ORG ( Saeima ) adopted LAW ( see below ) . Section CARDINAL(CARDINAL ) of this LAW provides that the language of instruction in state schools is the official language , namely NORP . Section CARDINAL(CARDINAL ) of the transitional provisions of the LAW establishes DATE as the date on which pupils in DATE ( i.e. DATE of secondary school ) of state schools must begin using NORP as the sole language of instruction . LAW of the afore - mentioned LAW prohibits the employment as state school teachers of persons whose knowledge of NORP is beneath the advanced level required by the regulations in force .","The relevant Articles of LAW ( PERSON ) provide :","Article CARDINAL","\u201c The NORP language is the official language in GPE ... \u201d .","Article CARDINAL","\u201c In GPE , there shall be a ORG [ Satversmes tiesa ] , which , within the limits of its jurisdiction as provided for by law , shall review cases concerning the compliance of laws with the LAW , as well as other matters regarding which jurisdiction is conferred upon it by law . The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid ... \u201d","Article CARDINAL","\u201c Everyone has the right to education . The ORG shall ensure that everyone may receive primary and secondary education without charge . Primary education shall be compulsory . \u201d","Article CARDINAL","\u201c Persons belonging to ethnic minorities shall have the right to preserve and develop their language and their ethnic and cultural identity . \u201d","The relevant provisions of LAW of DATE ( NORP likums ) are worded as follows :","Section CARDINAL","\u201c CARDINAL . In educational establishments maintained by the ORG and local authorities , instruction shall be provided in the official language .","CARDINAL Instruction may be dispensed in another language :","( CARDINAL ) in private educational establishments ;","( CARDINAL ) in establishments maintained by the ORG and local authorities which have introduced curricula for national minorities . In the context of these curricula , ORG and ORG shall decide which subjects must be taught in the official language ; and","( CARDINAL ) in the other educational establishments provided for by law .","In order to attain the primary or secondary standard of education , all pupils shall learn the official language and sit examinations to verify their knowledge of this language , in accordance with the procedures defined by ORG and ORG ... \u201d","Section CARDINAL","\u201c The following may not work as teachers : ...","( CARDINAL ) in educational establishments maintained by the ORG or local authorities \u2013 persons not in possession of a document issued in accordance with the procedures determined by ORG certifying that they have attained an advanced level in the official language , with the exception of teachers in higher educational establishments who are foreign nationals or stateless persons participating in educational programmes set up on the basis of an international agreement , and teachers employed by educational establishments set up by foreign States , or by departments attached to such establishments ... \u201d","Transitional provisions","\u201c CARDINAL . Section CARDINAL ) and CARDINAL ) of the present Act shall enter into force in a phased manner :","( CARDINAL ) DATE \u2013 in higher educational establishments ;","( CARDINAL ) DATE \u2013 schools maintained by the ORG or local authorities which provide instruction in another language shall begin to implement curricula for national minorities or to introduce instruction in the official language ;","CARDINAL ) DATE [ pupils in ] DATE of general secondary schools maintained by the ORG or local authorities , and [ pupils in ] DATE of vocational education establishments maintained by the ORG or local authorities , shall commence their studies in the official language alone \u201d .","The relevant provisions of LAW of DATE ( ORG tiesas likums ) are worded as follows :","Section DATE","( added by LAW DATE , in force since DATE )","\u201c CARDINAL . Any person who considers that a legislative provision which is not in compliance with a provision having superior legal force has infringed his or her fundamental rights under the LAW may lodge a constitutional appeal with ORG [ konstitucion\u0101l\u0101 s\u016bdz\u012bba ] .","A constitutional appeal may be lodged only after exhaustion of all the possibilities for securing protection of such rights through ordinary legal remedies ( appeal to a higher authority , appeal or application to a court of general jurisdiction etc . ) or where such remedies do not exist .","Where examination of a constitutional appeal is in the public interest or where legal protection of the rights in question via ordinary remedies does not enable the appellant to avoid substantial damage , ORG may decide to examine the application even before all other domestic remedies have been exhausted . The institution of proceedings before the ORG shall preclude examination of the civil , criminal or administrative case by the court of general jurisdiction until such time as ORG judgment has been delivered .","A constitutional appeal may be lodged within DATE on which the decision of the highest instance becomes final .","The submission of a constitutional appeal shall not suspend the execution of a judicial decision , except in cases where ORG decides otherwise .","In addition to its substance , as required by LAW , a constitutional appeal must contain submissions concerning :","( CARDINAL ) the violation of the appellant \u2019s fundamental constitutional rights ; and","( CARDINAL ) exhaustion of all other ordinary remedies or the fact that no such remedies exist .","The following information must be appended to a constitutional appeal :","( CARDINAL ) the explanations and documentation required to establish the facts of the case ;","( CARDINAL ) documents certifying that , where they exist , all ordinary remedies have been exhausted . \u201d","Section CARDINAL","\u201c CARDINAL . The judgment of the Constitutional Court shall be final . It shall come into legal effect at the time of delivery .","The judgment of the Constitutional Court shall be binding on all ORG and municipal institutions and authorities , including the courts , and also on natural persons and legal entities .","Any legal provision or act which ORG has found incompatible with the legal provision having superior legal force shall be considered invalid from the date of publication of ORG judgment , unless the Constitutional Court rules otherwise ... \u201d","According to official statistics , ORG delivered CARDINAL judgments during the period from DATE to DATE on the basis of constitutional appeals lodged by individuals . In CARDINAL of these CARDINAL cases , it ruled that the statutory provisions or legislation in issue were incompatible with those having superior legal force and declared them fully or partially void ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-104700","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2011,"docname":"CASE OF DIMITROV AND HAMANOV v. BULGARIA","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award","judges":"Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE Mr PERSON was arrested by the police while trying to break into a car with CARDINAL other individuals , GPE and GPE He was taken to a police station , where he made a written confession . PERSON , who was apparently also taken into custody , made a confession as well and turned over to the police CARDINAL radio cassette players stolen from CARDINAL cars which he had broken into earlier . On DATE a police officer drew up a report on the incident .","On DATE a police investigator interviewed GPE who confessed that he had committed the offence in concert with Mr PERSON and GPE","On an unspecified date in DATE the case was given the number CARDINAL\/CARDINAL .","On DATE the investigator in charge of the case interviewed one of the police officers who had arrested PERSON . On DATE he interviewed the owner of CARDINAL of the cars , and on DATE ordered an expert report on the value of the stolen goods . The report was ready DATE . On DATE the investigator interviewed the owner of another car .","On DATE Mr Dimitrov was formally charged with attempted theft committed in concert with GPE and GPE He was interviewed in the presence of his counsel and pleaded guilty . On DATE the investigator interviewed GPE as a witness . It seems that neither GPE nor GPE were charged .","NORP On DATE ORG , noting that in DATE PERSON had left GPE and was in GPE , that it was impossible to establish the facts without interviewing him , and it was necessary to charge him as well , decided to stay the proceedings pending his return . On DATE , noting that on DATE PERSON had come back from GPE , ORG decided to resume the proceedings .","On DATE PERSON was interviewed as a witness . He was interviewed again on DATE in the presence of a judge . GPE was also interviewed as a witness in the presence of the judge . It seems that neither GPE nor GPE were charged .","On DATE Mr PERSON was allowed to acquaint himself with the case file . On DATE the investigator recommended that he be brought for trial , and on CARDINAL DATE ORG indicted him .","ORG ( PERSON \u0440\u0430\u0439\u043e\u043d\u0435\u043d \u0441\u044a\u0434 ) heard the case on DATE . The prosecution and Mr PERSON stated that they had entered into a plea bargain . The court approved the bargain , sentenced the applicant to QUANTITY months\u2019 imprisonment , suspended , and terminated the proceedings .","On DATE a criminal investigation was opened against Mr GPE , a bank branch manager , and several other individuals in connection with a number of financial transactions . After DATE the case went through a preliminary investigation , trial and appeal . Following a remittal to the preliminary investigation stage in DATE , in DATE it was again pending before the prosecuting authorities . The detailed course of the proceedings up to DATE has been set out in paragraphs PERSON of the ORG \u2019s judgment in the case of GPE v. GPE ( no . CARDINAL , CARDINAL DATE ) .","In DATE one of Mr GPE \u2019s coaccused made a request under the new Article CARDINALa of the CARDINAL Code of Criminal Procedure ( see paragraphs CARDINAL below ) . On DATE the ORG requested ORG to send it the case file . On DATE that ORG forwarded the request to ORG , which was dealing with the case .","Apparently as a result of the above , on DATE ORG submitted to ORG ( PERSON \u043e\u043a\u0440\u044a\u0436\u0435\u043d \u0441\u044a\u0434 ) an indictment against Mr PERSON and CARDINAL other accused . Mr PERSON was accused of breaching his duties as bank branch manager by making thirtyfive unauthorised bank transfers , in breach of the applicable financial regulations , and by guaranteeing CARDINAL promissory notes , in breach of a resolution of the bank \u2019s management board prohibiting branch managers from issuing such guarantees , and thereby causing the bank a pecuniary loss . The offences were characterised by the prosecution as abuse of office under LAW . Mr GPE was additionally charged with unlawfully acquiring and possessing ammunition .","On DATE the court set the case down for trial .","QUANTITY hearings , listed for DATE and DATE , were adjourned , the first because the ORG had not been properly summoned as a civil party , and the second because Mr PERSON was ill and could not attend .","A hearing was held from DATE . On the lastmentioned date the court adjourned the case , finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up , and to hear additional witnesses called by the prosecution and the defence .","Three hearings , fixed for DATE , DATE and DATE , failed to take place , the first because Mr GPE \u2019s counsel was absent , the second because another accused \u2019s counsel had to be replaced , and the third because another accused was ill and could not attend .","A hearing was held from DATE . On the lastmentioned date the court adjourned the case , finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up , to hear additional witnesses called by the prosecution and the defence , and to obtain certain documents .","QUANTITY hearings , listed for DATE and DATE , were adjourned because other accused and their counsel were ill and could not attend .","QUANTITY hearings were held from DATE and from DATE .","The Plovdiv Regional Court gave its judgment on DATE , and handed down the reasons for it in DATE . It convicted Mr PERSON of guaranteeing the promissory notes , holding that this had amounted to wilful mismanagement contrary to LAW ( see paragraph CARDINAL below ) , not abuse of office contrary to LAW . It acquitted him of the charge relating to the making of the thirtyfive bank transfers . In addition , it found Mr GPE guilty of possession of ammunition , but not guilty of acquiring it . In connection with the mismanagement , the court sentenced Mr GPE to DATE and CARDINAL months\u2019 imprisonment and barred him from acting as a director of a commercial bank for DATE and DATE . In connection with the possession of ammunition , it sentenced him to a fine of CARDINAL NORP levs . In determining the quantum of the punishment to be imposed in relation to the mismanagement , the court noted the following :","\u201c Bearing in mind the legal characterisation of the [ offence ] committed by [ Mr PERSON ] ... , [ his ] dangerousness , [ his ] personality , the long period during which [ he ] was criminally prosecuted , and the need to attain the aims of the punishment ... , the court considers that [ he ] should be sentenced in line with LAW [ DATE see paragraph CARDINAL below ] , under predominantly mitigating circumstances . The court finds that those circumstances were [ the applicant \u2019s ] clean criminal record , his good character , the fact that [ he ] is in employment at the time of delivery of this judgment , [ his ] stable family and social situation , [ and ] the partial confession that he made during the trial . The aggravating circumstances [ consist in ] the perseverance , determination and coordination displayed by [ Mr GPE ] in carrying out [ his ] criminal acts .","...","In view of the established caselaw that , when accompanying a sentence of imprisonment , [ occupational debarment ] can not be shorter than that imprisonment , and bearing in mind the significant amount of time which has elapsed since the commission of the offence ... the court considers that is must bar [ Mr PERSON ] from acting as a director of a commercial bank for a period of DATE and DATE ... \u201d","DATE Mr PERSON and the other accused , as well as the prosecution , appealed against the judgment .","On DATE ORG ( PERSON \u0430\u043f\u0435\u043b\u0430\u0442\u0438\u0432\u0435\u043d \u0441\u044a\u0434 ) set the appeals down for hearing on DATE . However , the hearing failed to take place on that date because another accused did not have legal representation . It was held on DATE .","ORG gave its judgment on DATE , fully upholding the lower court \u2019s judgment .","Mr GPE and the other accused appealed on points of law .","The hearing before ORG ( NORP \u043a\u0430\u0441\u0430\u0446\u0438\u043e\u043d\u0435\u043d \u0441\u044a\u0434 ) was fixed for DATE , but was adjourned because the civil party had not been properly summoned and because another accused who wished to be present was prevented from attending . It took place on DATE .","ORG gave its judgment on DATE , upholding the part of the lower court \u2019s judgment concerning Mr PERSON in its entirety .","Article CARDINAL \u00a7 CARDINAL of the DATE LAW provides as follows :","\u201c Anyone charged with an offence shall be brought before a court within the time established by law . \u201d","Under LAW , ORG is the principal body concerned with the administration of the judiciary ( which , in GPE , comprises the courts , the prosecutor \u2019s offices and the investigation services ) . It has the power to , inter alia , appoint , promote , demote and dismiss judges , prosecutors and investigators ( Article CARDINAL \u00a7 CARDINAL and LAW ( CARDINAL ) ) and impose the harshest disciplinary punishments ( LAW ( CARDINAL ) ) .","A DATE amendment to the LAW added a new LAW , which envisaged the creation of an ORG attached to ORG . The ORG , which consists of a chief inspector and CARDINAL inspectors , is tasked with checking the work of the judiciary without infringing the independence of judges , prosecutors or investigators ( Article CARDINALa \u00a7 CARDINAL ) . It can act either of its own motion or pursuant to reports by private individuals , legal persons or ORG authorities ( LAW ) . It has the power to refer matters to the appropriate authorities , or make suggestions or reports to them ( LAW ) .","Section CARDINAL(CARDINAL ) of the DATE LAW provides that \u201c [ e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal \u201d .","Sections CARDINAL of the LAW govern the structure , powers and operations of the ORG attached to ORG ( see paragraph CARDINAL above ) . CARDINAL of the ORG \u2019s tasks is to check the processing of cases and their completion within the prescribed time - limits ( section CARDINAL(CARDINAL)(CARDINAL ) ) . It carries out planned DATE checks or unplanned checks prompted by reports ( section DATE ) ) . After carrying out a check of the work of an individual judge , prosecutor or investigator , the ORG draws up a report containing its findings and recommendations , if any ( section CARDINAL(CARDINAL ) ) . That report is presented to the judge , prosecutor or investigator concerned and to his or her hierarchical superior ( section CARDINAL(CARDINAL ) ) . The hierarchical superior must then , within the time set in the report , inform the chief inspector about the implementation of the recommendations ( section CARDINAL(CARDINAL ) ) .","An amendment to LAW that came into force in DATE introduced the possibility for accused persons to request that their case be brought for trial if the investigation had not been completed within DATE in cases concerning serious offences and DATE in all other cases ( new Article CARDINALa ) . Paragraph CARDINAL of the amendment \u2019s transitional provisions provided that that possibility applied with immediate effect in respect of investigations opened before DATE .","The procedure under that Article was as follows . The accused person had to submit a request to the relevant court , which then had DATE to examine the file and rule on the request . It could refer the case back to the prosecuting authorities , giving them DATE to submit an indictment against the accused or , alternatively , to drop the charges against him or her . If the prosecuting authorities failed to do so , the court was bound to discontinue the criminal proceedings against the person who had made the request . If the prosecuting authorities did submit an indictment , but the court found that the pretrial investigation had been tainted by serious breaches of the rules of procedure , the court had to refer the case back to the prosecuting authorities , which then had DATE to rectify those breaches and resubmit the indictment . If they failed to re - submit the indictment or to rectify the breaches highlighted by the court , or committed fresh breaches of the rules of procedure , the court had to discontinue the criminal proceedings .","NORP The DATE amendment was put before ORG with the reasoning that it was necessary in order to secure observance of the right to a hearing within a reasonable time guaranteed by the Convention .","In a judgment of DATE ( MONEY \u043e\u0442 CARDINAL \u044e\u043b\u0438 DATE \u0433. \u043f\u043e \u043a. \u043d. \u0434. \u2116 CARDINAL \u0433. ORG , I ORG ) , ORG analysed in detail the manner in which LAW was to be applied and held that a failure to finalise the procedure under that provision did not automatically put in jeopardy the fairness of the ensuing trial . It was precisely during that trial DATE as opposed to the pretrial phase of the proceedings \u2013 that the accused would be able to obtain a determination of the criminal charges against him or her in fully adversarial proceedings conducted in line with the requirements of , inter alia , the Convention .","The DATE Code of Criminal Procedure came into force on DATE , superseding the DATE Code . Its LAW provides as follows :","\u201c CARDINAL . The court shall examine and decide cases within a reasonable time .","NORP The prosecutor and the investigating authorities must ensure that the pretrial proceedings are conducted within the timelimits laid down in this Code .","Cases in which the accused is remanded in custody shall be investigated , examined and disposed of as a matter of priority . \u201d","Articles CARDINAL and CARDINAL of the DATE Code , which superseded LAW of the DATE Code , provided as follows :","\u201c CARDINAL . If , in pretrial proceedings , DATE have passed since a person has been charged with a serious offence , or DATE in the case of other offences , the accused may request that his or her case be examined by the court .","NORP In the cases envisaged in subparagraph CARDINAL the accused shall file a request with the relevant firstinstance court , which shall request the case file immediately . \u201d","\u201c CARDINAL . The court , consisting of a single judge , shall rule on the request within DATE . If it finds that the requirements of LAW are in place , it shall return the case to the prosecutor and give him or DATE within which he or she must submit an indictment , a proposal for the imposition of an administrative punishment , or a plea agreement , or discontinue the criminal proceedings and inform the court accordingly .","NORP If , within the abovementioned period of DATE , the prosecutor does not carry out any of the measures referred to in subparagraph CARDINAL or if the court does not approve the proposed plea bargain , the court , sitting as a single judge and in private , shall request the case file and shall discontinue the criminal proceedings by means of a decision . After the delivery of the decision the criminal proceedings shall continue with regard to the other accused as well as with regard to the other offences with which the accused has been charged .","NORP If the prosecutor carries out [ one of ] the steps referred to in subparagraph CARDINAL , but the pre - trial proceedings have been tainted by substantive breaches of the rules of procedure , the court , sitting as a single judge and in private , shall discontinue the judicial proceedings and refer the case back to the prosecutor for rectification of the breaches and resubmission of the case to the court within DATE .","NORP If within the timelimit referred to in subparagraph CARDINAL the prosecutor does not submit the case to the court or the substantive breaches of the rules of procedure have not been made good , or further ones have been committed , the court , sitting as a single judge and in private , shall discontinue the criminal proceedings by means of a decision .","The decisions referred to in subparagraphs CARDINAL and CARDINAL shall be final . \u201d","On DATE ORG repealed Articles CARDINAL and CARDINAL with effect from CARDINAL DATE .","On DATE the President of the Republic challenged the repeal , along with certain other amendments to the DATE Code of Criminal Procedure , before ORG . In a decision of DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0441\u0435\u043f\u0442\u0435\u043c\u0432\u0440\u0438 DATE \u0433. , \u043f\u043e \u043a. \u0434. \u2116 DATE \u0433. , \u043e\u0431\u043d. , GPE , \u0431\u0440. \u0431\u0440. CARDINAL \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. ) that court examined the repeal by reference to , inter alia , LAW . It noted that , unlike LAW , LAW did not explicitly lay down as a basic right the right of those charged with criminal offences to have the charges against them examined and to have the criminal proceedings against them finalised within a reasonable time . However , it analysed in detail the terms of LAW ( see paragraph CARDINAL above ) and held that that provision was to be construed as containing a procedural obligation to comply with the statutory timelimits for conducting and finalising the pre - trial phase of criminal proceedings , with a view to bringing those charged with criminal offences to trial . It thus served the same purpose as LAW , albeit only in relation to the first phase of criminal proceedings . The court continued :","\u201c As noted above , the [ abolished remedy ] was intended to serve as an effective remedy within the meaning of LAW in order to ensure the right to have a criminal case examined within a \u2018 reasonable time\u2019 during the pretrial phase of the proceedings . ORG finds that the repeal of that remedy is not unconstitutional , because it does not remove the disciplining procedural timelimits envisaged under LAW . Statutory limitations on the duration of the CARDINAL parts of the pretrial phase of criminal proceedings \u2013 \u2018 investigation\u2019 and \u2018 steps to be taken by the prosecutor after the investigation has been completed\u2019 \u2013 still exist and continue to be applied . ...","The repealed ... Articles CARDINAL and CARDINAL of the Code contained the implicit assessment of the legislature that , in view of the need to complete criminal proceedings within a reasonable time , it was unacceptable for a person to remain charged in pretrial proceedings for DATE in cases of serious offences and for DATE in cases of lesser offences . In most cases those timelimits would be longer than the sum of the timelimits under LAW CARDINAL and LAW . An exception could occur only if the duration of the investigation was extended , exceptionally , to DATE by the head of a regional or higher prosecutor \u2019s office or a person designated by him or her ( LAW ) . Only then would the repeal lead to a restriction of a procedural right and raise the question whether , in the light of LAW , that restriction did not exceed what was required for the administration of justice .","ORG does not accept the argument that the legislative change destroys the right of the accused to have their cases examined within a \u2018 reasonable time\u2019 , as required under LAW . The [ DATE ] Code of Criminal Procedure laid down the basic principle that cases are to be examined and decided within a reasonable time , requiring the authorities in charge of pretrial investigations to comply with procedural timelimits ( LAW ) . The constitutional amendments in DATE and the new [ LAW ] , adopted in DATE , put in place additional safeguards for the faster examination of cases and for avoiding their undue protraction . The repeal of [ Articles CARDINAL and CARDINAL of the Code ] does not affect that system of rules . Its aim was to improve the law in order to ensure good justice , which is [ a legitimate aim ] .","The main weakness of the repealed procedure was that it used a formal , purely quantitative criterion to measure \u2018 reasonable time\u2019 during the pretrial phase of the proceedings . It is true that in most cases such an approach would lead to a correct assessment \u2013 something fully logical in view of the fact that under the rules of procedure a person can be charged only if there already exists \u2018 enough evidence\u2019 that he or she is guilty . However , in some complex cases that criterion might , contrary to the public interest that all offenders be brought to justice , give the accused an undue advantage \u2013 for instance in cases in which it proves to be genuinely difficult to trace and charge accomplices , cases in which the need arises to gather additional evidence , including through letters rogatory , cases in which the accused has slowed down the proceedings , etc . It is no wonder that the caselaw of ORG CARDINAL \u00a7 CARDINAL of the LAW is quite flexible . That ORG uses CARDINAL criteria to assess the relevant period : the factual and legal complexity of the case , the conduct of any authorities involved and the conduct of the person concerned [ ( see Eckle v. GPE , DATE , Series A no . CARDINAL ; PERSON and PERSON v. GPE , DATE , Series A no . CARDINAL ; PERSON GPE , no . CARDINAL , DATE ; and ORG v. GPE , no . CARDINAL\/CARDINAL , DATE ) ] . It is equally possible to exceed a reasonable time while formally complying with the applicable timelimits and to comply with the \u2018 reasonable time\u2019 requirement while exceeding the applicable timelimits . ORG finds breaches of the \u2018 reasonable time\u2019 requirement only on the basis of delays attributable to the authorities . In view of that , ORG considers that by repealing [ Articles CARDINAL and CARDINAL ] of the [ DATE ] Code of Criminal Procedure the legislature sought to achieve a constitutionally legitimate aim \u2013 to ensure the interests of justice while taking into account the right to \u2018 a hearing within a reasonable time\u2019 , as construed by ORG . In so far as in exceptional cases the new legal framework could restrict the rights of the accused , one should take into account that there exists a balancing mechanism , namely the requirement under LAW and CARDINAL of LAW ] for all preventive measures [ such as pretrial detention or house arrest ] to be set aside after the expiry of timelimits that are identical to those under the repealed provisions .","It is also important to examine whether the repeal of the possibility for accused persons to request that their case be brought for trial does not create a lacuna in the law , in breach of the requirement of LAW for effective remedies in respect of the rights and freedoms enshrined in the LAW and in particular the right of those charged with criminal offences to have their cases examined within a reasonable time . In its caselaw ORG has held that remedies are effective if they can prevent the alleged violation or its continuation , or provide adequate redress for any violation that has already occurred [ ( see GPE v. GPE [ ORG ] , no . GPE , \u00a7 CARDINAL , ORG CARDINALXI ) ] . In a number of judgments , that ORG has noted that before the introduction of Article CARDINALa of the [ CARDINAL ] Code of Criminal Procedure our State did not make available a remedy complying with the requirements of LAW , read in conjunction with LAW and capable of ensuring that the pretrial phase of criminal proceedings does not exceed a reasonable time [ ( see NORP and NORP v. GPE , nos . FAC and DATE , DATE ; PERSON v. GPE , no . CARDINAL , DATE ; and GPE v. GPE , no . CARDINAL , DATE ) ] . In those circumstances , the answer to the above question depends on whether , from the creation of that remedy in DATE until its abolition in DATE , the ORG has created alternative mechanisms ensuring the availability of effective remedies in respect of the right to have charges examined within a reasonable time during the pretrial phase of criminal proceedings . In [ our ] view , that has been done , as far as rules are concerned . An amendment to LAW [ which came into force in DATE ] created a new independent body , the ORG attached to ORG , which may act pursuant to requests by the persons concerned , a category which includes those charged with a criminal offence . That ORG checks the work of the judicial authorities and has the power to report and make proposals to all ORG authorities , including the competent judicial authorities ( LAW and CARDINAL of the LAW ) . The ORG \u2019s powers have been laid down in more detail in the new [ LAW ] . It may now check \u2018 the way in which judicial , prosecutorial and investigation case files are being opened and processed , as well as their completion within the prescribed timelimits\u2019 ( section CARDINAL ) of the LAW ) . Under section CARDINAL(CARDINAL ) of the LAW , the results of such checks have to be made available not only to the judge , prosecutor or investigator concerned , but also to the head of the relevant department of the judiciary . That head must then inform the chief inspector whether any recommendations given have been complied with within the timelimit set in the ORG \u2019s report ( section CARDINAL(CARDINAL ) of the Act ) . If it is necessary to prevent or overcome an undue delay during the pretrial phase of criminal proceedings , the authority in charge of ensuring compliance with the ORG \u2019s directions is the head of the relevant department of the prosecuting authorities . He or she has the power to take various measures : organisational ( under section PERSON ) of the Act ) , disciplinary ( to impose certain light sanctions under section CARDINAL(CARDINAL ) of the LAW or to initiate disciplinary proceedings before ORG ) and procedural ( to set aside or vary the decisions of the lower prosecutors , to give mandatory directions or personally to take the necessary procedural steps , as possible under LAW of the [ DATE ] Code of Criminal Procedure , [ or ] to exercise control over the activities of the investigating authorities in line with ORG CARDINAL and CARDINAL of the [ same Code ] ) . It can therefore be accepted that the repeal of [ Articles CARDINAL and CARDINAL of the Code ] does not lead to a legal vacuum incompatible with LAW . Naturally , the mere existence of rules does not preclude the risk of future judgments in which ORG will find violations in respect of GPE . All State authorities must take into account the general statement made in GPE , cited above , namely that the remedy required by LAW must be effective in practice as well as in law . \u201d","Section CARDINAL of the DATE State and ORG ( \u201c the DATE LAW , as in force since DATE , provides as follows :","\u201c 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 . \u201d","Section CARDINAL ) of the LAW provides as follows :","\u201c The ORG shall be liable for damage caused to individuals by organs of [ the investigation ] , the prosecution and the courts through unlawful :","...","NORP bringing of criminal charges , if the person concerned has been acquitted or if the criminal proceedings are discontinued because the offence was not committed by the person concerned , or [ that person \u2019s ] act does not constitute a criminal offence ... \u201d","Individuals who have been acquitted or had the proceedings against them discontinued on CARDINAL of the grounds set forth in section CARDINAL ) DATE which , according to an interpretative decision of ORG ( \u0442\u044a\u043b\u043a. \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0430\u043f\u0440\u0438\u043b DATE \u0433. \u043f\u043e \u0442\u044a\u043b\u043a. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG \u043d\u0430 \u0412\u041a\u0421 ) , include discontinuance because the charges have not been made out DATE can obtain compensation for the mere fact that criminal proceedings have been instituted against them . According to the same decision , compensation is due in respect of the proceedings themselves and in respect of any incidental measures , such as pretrial detention . The decision also says that compensation is due in cases of partial acquittal , where there is an established causal link between the charges in respect of which a person has been acquitted and the damage sustained .","In several judgments given DATE ORG , when fixing the amount of damages it awarded pursuant to such claims , had regard to , among other factors , the length of the proceedings ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044e\u043d\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 ORG \u0433. , ORG , PERSON \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 MONEY \u0433. , ORG , PERSON \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u044f\u043d\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 MONEY \u0433. , ORG , PERSON \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0440\u0442 DATE \u0433. \u043d\u0430 \u0433\u0440. \u0434. \u2116 ORG \u0433. , ORG , PERSON \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG , PERSON \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , PERSON \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0433. \u043e. ; \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , ORG , V \u0433. \u043e. ; MONEY CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , PERSON \u0433. \u043e. ) . The examination of those claims lasted DATE in total .","Under LAW of the DATE LAW , when sentencing a convicted offender the court has to fix the punishment within the limits set by law , by reference to the DATE \u2019s general rules and taking into account the dangerousness of the offence and of the offender , the motives , as well as all other aggravating and mitigating circumstances .","Article CARDINAL \u00a7 CARDINAL of the Code makes it an offence for officials or managers to fail to take due care in managing or keeping secure the assets entrusted to them , where such failure results in substantial losses , destruction or dissipation of such assets , or other substantial damage to the undertaking or the economy . The punishment can be up to CARDINAL GPE imprisonment . LAW provides that if the offence has been committed wilfully , it is punishable by DATE imprisonment . LAW provides that if the offence is particularly serious , the punishment ranges DATE if the offence has been committed negligently , and DATE if it has been committed wilfully .","On DATE , during its CARDINALth meeting , ORG adopted an Interim Resolution on the execution of the judgments of ORG concerning the excessive length of judicial proceedings in eightyfour cases against GPE ( CM \/ ResDH(CARDINAL)CARDINAL ) . The resolution reads :","\u201c ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of ORG hereinafter \u201c the Convention \u201d ) ,","Having regard to the number of judgments of ORG ( \u201c the ORG \u201d ) finding GPE in violation of DATE , paragraph CARDINAL and LAW on account of the excessive length of judicial proceedings and the absence of an effective remedy in this regard ( see LAW to this resolution ) ;","Recalling that excessive delays in the administration of justice constitute a serious danger , in particular to respect for the rule of law and access to justice ;","Recalling also its Recommendation Rec(CARDINAL)CARDINAL to member states on the need to improve the effectiveness of domestic remedies for excessive length of proceedings , and emphasising the importance of this question where judgments reveal structural problems likely to give rise to a large number of further similar violations of the Convention ;","Having examined the information supplied by the NORP authorities concerning the measures taken or envisaged in response to those judgments ( see PERSON I ) , including the statistical data on the length of judicial procedures ( see PERSON ) ;","Assessment of ORG","I. Individual measures","Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found ( restitutio in integrum ) , in particular the acceleration , as far as possible , of proceedings which were still pending after the findings of violations by the ORG ;","Noting however with concern that the domestic proceedings in CARDINAL cases are still pending before the domestic courts and that the authorities have been unable to provide information CARDINAL other cases ( see Appendix I ) ;","CALLED UPON the NORP authorities to provide for acceleration as much as possible of the proceedings pending in these cases , in order to bring them to an end as soon as possible , and to inform it of the progress of proceedings in the CARDINAL afore - mentioned cases ;","II . General measures","CARDINAL ) Measures aimed at reducing the length of judicial proceedings","Noting the numerous violations found by ORG on account of the excessive length of civil and criminal proceedings in GPE , revealing certain structural problems in the administration of justice at the time of the relevant facts ;","Welcoming the numerous legislative reforms adopted by the authorities in order to remedy these structural problems and in particular the adoption of the new codes of criminal and civil procedure ( see Appendix I ) ;","Welcoming likewise the other measures taken by the authorities to increase the efficiency of the judicial system , and in particular the establishment of assessment and monitoring mechanisms , including the collection and analysis of statistical data ;","Noting that the DATE statistics show a reduction in the backlog in the NORP courts as a whole , and an increase in the number of cases dealt with in the space of DATE ( see PERSON ) ;","Noting however that , according to the statistics , the backlog in the district courts located in regional centres has increased slightly by reason of the substantial rise in the number of cases registered , and that those courts were responsible for examining CARDINAL the cases pending in the country in DATE ( see PERSON ) ;","Noting also that the legislative reforms introduced DATE have not yet produced their full impact on the length of proceedings and that a longer period of time is needed before the effectiveness of all the measures taken can be fully and completely assessed ;","ENCOURAGED the NORP authorities to pursue their efforts in following up the reforms introduced , in order to consolidate their positive effects , in particular as regards the situation in the district courts located in regional centres ;","CALLED ON the authorities to continue to monitor the effects of these reforms as it proceeds , with a view to adopting , if appropriate , any further measure necessary to ensure its effectiveness , and to keep the ORG informed of the developments in this regard ;","CARDINAL ) Measures relating to the effectiveness of remedies","Recalling that the ORG has found numerous violations of the right to an effective remedy in contesting the excessive length of proceedings in GPE , revealing certain structural problems in this field ;","Recalling its Recommendation Rec(CARDINAL)CARDINAL encouraging states to introduce remedies making it possible both to expedite proceedings and to grant compensation to interested parties for damage suffered ;","Noting with interest that Articles DATE of the Code of Civil Procedure provide that , if a court does not take a procedural step in due time , the parties may at any time apply to the superior court for a time - limit to be set for the taking of the procedural step in question , thus affording a remedy designed to speed up the civil proceedings ( see Appendix I ) ;","Noting also that there exist in criminal law certain forms of nonpecuniary redress , such as the possibility of reducing the sanction , where there is a finding of excessive length of proceedings ;","Noting however that at the present time no domestic remedy is available for expediting excessively lengthy criminal proceedings or obtaining pecuniary compensation if appropriate ( see Appendix I ) ;","Welcoming in this context the reform undertaken by the authorities aimed at introducing into NORP law a compensatory remedy where excessive length of judicial proceedings is alleged ( see PERSON I ) ;","INVITED the NORP authorities to complete as soon as possible the reform undertaken in order to introduce a remedy whereby compensation may be granted for prejudice caused by excessive length of judicial proceedings , and to keep the ORG informed of its progress and of any other measure that may be envisaged in this field ;","Having regard to the foregoing , ORG","DECIDED to resume its examination of progress made at the latest :","\u2013 by DATE , with regard to the question of effective remedy ;","\u2013 by PERSON , with regard to the question of the excessive length of judicial proceedings . \u201d","An appendix to the resolution summarised the information provided by ORG on the measures taken by the NORP authorities in that domain . It reads :","\u201c I. Individual measures","The proceedings which were still pending before the domestic courts at the time when the ORG gave its judgments have been terminated in most of the cases . At the present time , the proceedings have not yet been terminated in the GPE , GPE , PERSON , PERSON , PERSON , GPE and GPE cases . Information is still awaited also on the state of progress in the proceedings in the GPE and GPE cases .","II . General measures","CARDINAL ) Measures aimed at reducing the length of proceedings","\u2013 Legislative measures","...","CARDINAL of Criminal Procedure ( \u201c CCrP \u201d ) , adopted in DATE , came into force on DATE . Like the new CCvP , it aims in particular to speed up criminal proceedings . For example , it prescribes short time - limits for the examination of a case and for postponement of its examination ( Articles CARDINAL , CARDINAL and CARDINAL ) and the more widespread use of simplified procedures ( Articles DATE , DATE and DATE ) . According to the DATE report of the president of ORG on the work of the courts , the simplified judicial procedures most often used in DATE in the field of criminal justice related to summary judicial investigation and plea bargaining between the accused and the prosecution ( an agreement enabling the prosecution to be terminated provided the court approves ) .","The other important provisions of the ORG provide for :","\u2013 the obligation on the courts and bodies responsible for the preliminary investigation to examine criminal cases within a reasonable time ; in addition , cases in which the accused is held in detention must be given priority over other cases by the courts examining and judging them ( LAW ) ;","\u2013 time - limits for termination of the preliminary investigation and prohibition on the use in court of any evidence obtained outside the time - limit ( Article CARDINAL ) ;","\u2013 the introduction of summary judicial investigation in courts of first instance ; this procedure makes it possible for the accused to obtain a reduction of sentence if he admits the offence and relinquishes the production of evidence , provided he is assisted by counsel ( where necessary appointed by the court ) ;","\u2013 broader applicability of the simplified procedure whereby the accused may be absolved of his criminal responsibility and an administrative penalty imposed instead .","Furthermore , the DATE CCrP was amended in DATE for the purpose , in particular , of avoiding ( a ) unjustified referrals at the preliminary investigation stage ( LAW ) and ( b ) postponement of the hearing where the representative of the accused fails to appear without good reason ( LAW ) . In addition , it is to be noted that now the possibility for the prosecution to bring further charges during the judicial investigation has been widened , even if those charges relate to different facts or an offence carrying a more severe penalty ( LAW ) .","Some other changes are aimed at reducing the excessive formalism of criminal procedure in GPE ( for example , the abrogation of the requirement that the investigator draws up a formal document setting out his conclusions \u2013 Articles DATE ) .","\u2013 Administrative measures designed to improve the organisation and management of the courts","Among other reforms designed to improve the efficiency of the NORP judicial system , should be mentioned the creation in DATE of an electronic commercial register managed by an administrative agency ( see the commercial register law in force since DATE ) . Thus the regional courts which were responsible for registering commercial companies in the past have been absolved of that responsibility .","Furthermore , following the adoption of LAW in DATE , CARDINAL administrative courts were set up in DATE . These new administrative courts have powers previously exercised by the regional courts . In addition , as an ad hoc measure aimed at lightening the workload of ORG , labour disputes pending before it when the DATE CCvP came into force have been transferred to the appeal courts .","It should also be pointed out that the judicial authorities now have access to the national database containing the population register , which should overcome certain delays arising from requests for information needed to take judicial proceedings forward .","Finally , GPE has achieved a high level of computerisation designed to assist both judges and other personnel ( for further details , see the DATE report of ORG for ORG ) . Moreover , the courts are continuing their efforts to improve their IT equipment in order to communicate with parties . Those efforts were recently rewarded by the award of the DATE \u201c Crystal Scales of Justice \u201d prize to the NORP administrative court for the work it has done to improve users\u2019 understanding of judicial procedure .","\u2013 Mechanisms for periodic assessment and monitoring of the work of the courts","CARDINAL bodies \u2013 ORG and ORG \u2013 have the main responsibility for monitoring and assessing the work of the courts , prosecution services and investigating magistrates .","ORG , established in DATE , comprises an inspectorgeneral and CARDINAL inspectors elected by ORG for terms of CARDINAL and DATE respectively ( Article CARDINALa of the LAW ) . It oversees the administrative organisation of the courts , prosecution services and bodies in charge of preliminary investigations , together with the proper organisation of preliminary investigations and cases pending before prosecutors and courts . In particular , the inspectorate oversees compliance with the time - limits laid down by law for dealing with cases . It carries out its tasks ( a ) through planned regional inspections and ( b ) through inspections focussing on particular questions . It may also conduct inspections in response to reported irregularities ( [ sections ] CARDINAL and CARDINAL of the [ DATE LAW ] ) .","Following inspections , it makes recommendations , particularly concerning compliance with the timelimits laid down by law for dealing with cases . Implementation of its recommendations is monitored in the course of followup inspections . The inspectorate may also make proposals to ORG administrative authorities and to ORG for the imposition of disciplinary penalties on judges , prosecutors and investigating magistrates ( see \u201c Disciplinary measures \u201d below ) . The work of the inspectorate is covered in the progress report of ORG .","ORG oversees , among other things , the manner in which case registration and handling are managed , as well as closure of cases within the legal time - limits . This inspectorate organises thematic controls in accordance with a programme approved by ORG . It may make recommendations and supervises their implementation in the course of subsequent inspections .","ORG is also responsible for overseeing application of the new CCvP and CCrP. During inspections already carried out , it has observed some of the causes of procedural delays and made recommendations in this regard .","Furthermore , the presidents of ORG and ORG are required to present DATE reports on the functioning of trial and appeal courts , in addition to DATE reports on their own activities ( [ sections MONEY ) and ( CARDINAL ) and CARDINAL ) and ( CARDINAL ) ] of the [ DATE LAW ] ) . Lastly , DATE ORG centralises and analyses the statistics on the work of all the country \u2019s courts ( cf . PERSON ) .","\u2013 Disciplinary measures","Under the [ DATE LAW ] , systematic failure to comply with the time - limits laid down in procedural laws , and action or inaction such as to delay proceedings in an unjustified manner , are disciplinary offences ( [ section ] CARDINAL \u00a7 CARDINAL ) . ORG has the power to impose disciplinary penalties ( other than comment and reprimand , which are imposed by the hierarchical superior ) on judges , prosecutors and investigating judges . The public bodies responsible for enforcing judicial decisions and the bodies responsible for entries in the land registry may be sanctioned by ORG ( [ section ] CARDINAL ) .","The authorities have stated that during the period DATE the number of disciplinary proceedings before ORG rose steadily ( CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE ) . By way of example , in DATE CARDINAL judges and CARDINAL head of administration were sanctioned , mainly for systematic failure to comply with the time - limits laid down by law . Among them , CARDINAL judges were dismissed and CARDINAL others had their salaries reduced by PERCENT for periods of DATE .","\u2013 Longterm strategies","The NORP authorities have adopted several strategies on judicial reforms . For example , a criminal policy strategy for the period DATE has been adopted , the principal objective being to further reduce the excessive formalism of criminal procedure . It should be noted that the amendments to the DATE CCrP were decided on the basis of this strategy ( see above ) .","Further , in DATE the government adopted a plan to eradicate the causes of violations of the ORG found by ORG in its judgments concerning GPE . That plan was drawn up by a working party which included representatives of ORG as well as human rights activists . Among the tangible results obtained on the basis of this plan , should be mentioned the working party set up to introduce an application for compensation in cases of excessive length of judicial proceedings ( see below ) . In DATE the government adopted the strategy on continued judicial reforms in GPE following its accession to ORG .","CARDINAL ) Measures relating to the effectiveness of remedies","...","\u2013 Remedy concerning speeding up of criminal proceedings","The provisions of ORG CARDINAL and CARDINAL of the new ORG , which incorporated LAW of the DATE ORG , envisaged the possibility for the accused to request referral of his case to the competent court once a period of DATE , depending on the gravity of the charges , had elapsed since the start of the preliminary inquiry . The court to which that request was submitted could order the prosecuting authority to complete the preliminary inquiry within DATE or else bring the criminal proceedings to an end .","In the PERSON judgment ( No . DATE , \u00a7 \u00a7 DATE , DATE ) , ORG declared the complaint based on LAW inadmissible for failure to exhaust the domestic remedies , because the applicant had not availed himself of the remedy provided for in LAW However , it should be noted that in another case examined by ORG ( LOC against GPE , No . CARDINAL , DATE ) , the application of Article CARDINALa of the CARDINAL CCrP was the cause of the closure of a criminal inquiry into illtreatment . In that case ORG found a violation of LAW .","Articles CARDINAL and CARDINAL were abrogated as from CARDINAL DATE . The authorities indicated in this connection that the abrogated provisions had mainly served as a reason for terminating the criminal proceedings , without guaranteeing a full inquiry . They consider that new provisions relating to the possibility of imposing disciplinary penalties for systematic failure to comply with timelimits or for unjustified delays could be seen as a guarantee of expeditious criminal proceedings ( for more details , see the Government \u2019s reply to CARDINAL NGO \u2019s observations on this point on ORG website : DHDD(CARDINAL)CARDINAL ) .","\u2013 Compensatory remedy","ORG has consistently pointed to the absence in NORP law of a remedy enabling compensation to be obtained for excessive length of judicial proceedings ( see , for example , the PERSON against GPE judgment cited above , \u00a7 CARDINAL ) .","In this connection the ORG has indicated that , in the context of implementing a plan to eradicate the causes of the violations found by ORG in judgments concerning GPE , it has set up a working party to prepare a bill amending the law on the responsibility of the state and municipalities for prejudice caused to individuals . This bill envisages , in particular , the introduction of an application for compensation in cases of unjustified delay in the proceedings . This working party has drafted a bill providing that the state may be held responsible , in addition to the cases already settled , where unjustified delay in civil , criminal and administrative proceedings are attributable to the judicial authorities .","As regards criminal proceedings , it should also be noted that certain forms of nonpecuniary redress exist in cases of excessive length of proceedings , such as the possibility of reducing the penalties . This form of redress has been recognised by ORG as an effective remedy in certain circumstances ( PERSON against GPE judgment of DATE , \u00a7 CARDINAL ) . \u201d","A second appendix to the resolution contained statistical data on the processing of cases in the NORP courts . It reads ( footnotes omitted ) :","\u201c I. Statistics on length of judicial proceedings before the NORP courts","CARDINAL ) Data for NORP courts as a whole","The general trend which emerges from the data available shows that , despite a resurgence in the number of cases registered , the number of cases terminated for all courts is on the increase ( in DATE it was PERCENT higher than in DATE , and PERCENT higher than in DATE ) . Similarly , the backlog facing the courts as a whole decreased for DATE . Thus the decrease in the number of cases pending at DATE is of PERCENT as compared with DATE and of PERCENT as compared with DATE .","The number of judges , taking all courts together , was CARDINAL in DATE , PERCENT more than in DATE and PERCENT DATE .","CARDINAL ) ORG","\u2013 Criminal bench","CARDINAL consequence of the entry into force of the DATE ORG was a fall in the number of cases registered , since judgments delivered on appeal upholding the judgments delivered at first instance are now not subject to review by ORG . Thus , while the criminal bench had examined CARDINAL cases at public hearings in DATE , the corresponding figures for DATE and DATE were CARDINAL and CARDINAL cases respectively .","In DATE the criminal bench registered CARDINAL cases DATE , and its backlog also increased ( from CARDINAL cases at DATE to CARDINAL cases at DATE ) . However , that increase in the backlog had no major effect on the length of proceedings before the criminal bench . Indeed , in DATE , the proceedings following appeals in cassation and applications for reopening of procedures took DATE , as in DATE .","...","CARDINAL ) ORG courts","The backlog in the appeal courts is constantly decreasing . The number of cases pending at DATE ( CARDINAL ) decreased by PERCENT as compared with DATE and by PERCENT as compared with DATE .","CARDINAL ) Military [ courts ]","The same trend is observed in military [ courts ] . In DATE , the backlog decreased by PERCENT as compared with DATE and by PERCENT as compared with DATE .","CARDINAL ) ORG courts and GPE [ C]ourt","The creation in DATE of CARDINAL administrative courts , as well as an agency responsible for entries in the commercial register , led to a significant decrease in the number of cases registered by regional courts in DATE ( PERCENT fewer than in DATE and PERCENT fewer than in DATE ) . Cases pending at DATE numbered CARDINAL , a figure PERCENT lower than in DATE and PERCENT lower than in DATE .","CARDINAL ) District courts located in regional centres","The backlog in these courts at DATE had grown by PERCENT as compared with DATE and by PERCENT as compared with DATE . This increase is due to the rise in the number of cases they had to deal with in DATE ( PERCENT more than in DATE and PERCENT more than in DATE ) , and despite a larger number of cases terminated during DATE ( PERCENT more than in DATE and PERCENT DATE ) .","In DATE the district courts located in regional centres registered CARDINAL cases ; CARDINAL cases were registered by the GPE district court , i.e. PERCENT of all cases newly registered with the courts in this category .","CARDINAL) LOC courts located outside regional centres","The backlog in these courts at DATE had fallen ( by PERCENT as compared with DATE and by PERCENT as compared with DATE ) notwithstanding an increase in the number of cases they had to deal with ( PERCENT more than in DATE and PERCENT more than in DATE ) .","This trend was due to the increase in the number of cases terminated in DATE ( PERCENT more than in DATE and PERCENT DATE ) . It is also to be noted that in DATE , CARDINAL cases were concluded within DATE , a figure PERCENT higher than for DATE and PERCENT higher than for DATE .","...","II . Statistics for the length of preliminary investigations","In DATE , cases in which the preliminary investigation was under way numbered CARDINAL , a figure PERCENT higher than for DATE . Investigations started during DATE numbered CARDINAL , PERCENT more than for DATE . Investigations initiated during DATE represented PERCENT of investigations under way in DATE . The backlog at DATE consisted of CARDINAL cases being investigated . The backlog at DATE consisted of CARDINAL cases being investigated ( as against CARDINAL in DATE ) .","As regards cases in which the investigation was suspended , their number fell from CARDINAL in DATE to CARDINAL at DATE . In PERCENT of these cases , the reason for suspension is the impossibility of identifying the perpetrator of the criminal offence . \u201d","In DATE ( DATE ) on the implementation of the ORG \u2019s judgments , adopted on DATE , ORG of ORG noted \u201c with grave concern \u201d the continuing existence of \u201c major systemic deficiencies which cause large numbers of repetitive findings of violations of the ORG and which seriously undermine the rule of law \u201d in some Member GPE of ORG . CARDINAL of those was the \u201c excessive length of judicial proceedings \u201d ( paragraph CARDINAL ) . The ORG , in particular , urged GPE to , inter alia , \u201c pursue its efforts to solve the problem of excessive length of court proceedings \u201d ( paragraph CARDINAL in fine ) ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81197","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF \u00dcLGER v. TURKEY","importance":3,"conclusion":"Preliminary objections dismissed (non-exhaustion of domestic remedies;six month period);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE .","He worked in a construction yard in GPE for ORG , ORG ( hereinafter \u201c the company \u201d ) , from DATE until DATE .","On DATE , the applicant brought a case against the company before ORG . He claimed that the company had made him stay and wait for DATE in GPE where he had returned for DATE . However , he was neither sent back to GPE nor given work in GPE . He submitted that no payment had been made to him concerning his salary for this period and that he had not been notified of the termination of his contract . He requested the court to rule on his unpaid salary and compensation for the length of his service ( k\u0131dem tazminat\u0131 ) and the lack of any dismissal notice ( ihbar tazminat\u0131 ) , together with interest .","On DATE the court made the first examination on the case file and decided to hold a hearing on DATE , before which date the company was required to submit its replies , with any evidence .","The defendant did not appear at the hearings of DATE and DATE although the summons had been duly served .","On DATE the court took evidence from CARDINAL of the witnesses whom the applicant wished to have examined , who were his co - workers at the construction yard . The applicant 's lawyer stated that they would ensure that a third witness would be present at the next hearing .","On DATE the court heard the third witness . At the end of the hearing , the court decided to obtain an expert report and , accordingly , sent the case file to the expert after the necessary fee had been deposited by the applicant .","NORP The first expert report dated DATE stated that the company was liable to pay the applicant compensation for his length of service , for non - notification of the termination of his contract and for his unpaid salary . The amounts due were also assessed in the report .","On DATE the applicant 's lawyer objected to the report , claiming that the amounts were insufficient and requesting that it be reviewed by another expert .","On DATE , the court decided to obtain an additional expert report from the same expert once an additional fee had been deposited by the applicant . Accordingly , a second report was prepared by the same expert and submitted to the court . This report stated that the claim made by the applicant 's representative was valid in respect of the amount of compensation for his length of service . This should have been in the sum of MONEY . The applicant 's lawyer challenged that report and requested a further assessment , to be made by another expert .","The applicant 's representative did not attend the hearing on DATE . The court decided to discontinue the proceedings unless a request for resumption was put before it . Upon the request by the applicant 's lawyer , the case was reinstated on DATE and a hearing was scheduled for CARDINAL DATE .","On DATE the court decided that , if the necessary fees were deposited by the applicant within DATE , an order would be sent to the defendant requesting payslips showing that the applicant had been paid a salary for DATE after he had returned to GPE . The company would be warned that , unless these payslips were provided , it would be assumed that no salary had been paid . The hearing was postponed to DATE . The defendant company did not respond to the order despite the formal warning .","On DATE the court decided to obtain another expert report , the cost of which was to be paid by the applicant . The report , in which the abovementioned DATE period had been taken into account , was submitted to the court on DATE .","On DATE the applicant 's lawyer requested that another case pending before the court , which was grounded on the same facts and in which additional compensation had been claimed , be joined to the present case . The court decided to join the proceedings as requested and postponed the hearing to CARDINAL DATE .","On DATE ORG awarded the applicant MONEY in total in compensation for the length of his service , the lack of dismissal notice and his unpaid salary . In the judgment , it was stated that the proportionate court fee for the judgment was MONEY . This fee , less the amount paid by the applicant at the beginning of the proceedings , was to be borne by the defendant company .","On DATE the court ordered the bailiffs ' tax office to levy the court fee from the company .","On DATE the applicant 's lawyer submitted a petition to the court , in which she requested that the judgment be served on her to enable the commencement of enforcement proceedings . She stated that the applicant had won his case whilst the defendant company , in addition to the payment of compensation , had been held liable for the legal costs and charges . She pointed out the risk that the company , which had a known address at the time of the judgment , would attempt to evade its obligations by moving elsewhere , on account of its financial crisis . She further maintained that the applicant would be willing to pay the court costs in order to obtain the judgment , but did not have sufficient means to do so .","On DATE the court rejected this request on the ground that it was impossible under LAW ( a ) of the Law on Charges ( Law no . MONEY ) to serve a copy of the judgment unless the court costs had been discharged .","The applicant was therefore unable to bring enforcement proceedings in order to have the abovementioned judgment executed . In the meantime , the company has apparently relocated .","NORP The relevant Articles of the Law on Charges ( Law no . CARDINAL of CARDINAL DATE ) read as follows :","\u201c The proportional charges set out in scale no.CARDINAL shall be paid within the following periods :","( a ) CARDINAL of the charges for the judgment and the writ shall be paid beforehand and the rest shall be paid within DATE of the judgment 's delivery . The writ shall not be served on the party concerned unless the [ court ] charges for the judgment and a writ of execution are paid .... \u201d","\u201c As long as the relevant charges for the judicial processes are not paid , the subsequent processes shall not be executed . If the charges which were not paid by the party concerned are paid by the other party , the process shall be continued and the amount shall be taken into consideration in the judgment without the need for any request to this effect . \u201d","\u201c Charges not paid within the periods foreseen in this PERSON shall be notified by the court or legal office to the relevant tax office within DATE from the expiry of the abovementioned time - limit , and the charges shall be recuperated by the tax office . This order shall include the nature and amount of the charge and the tax - payer 's details , including the address . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5321","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2000,"docname":"CELEBI v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Wilhelmina Thomassen","text":["The applicant is a NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","Applicant \u2019s version of the facts","The applicant used to live and work as a farmer in the GPE hamlet of the GPE village attached to the FAC district of the province of ORG .","On account of terrorist activities in the state of emergency region the villagers were requested to be village guards and the villages of those who did not agree to be village guards were evacuated and destroyed by security forces .","The applicant was also requested to be a village guard . As he did not agree he received a warning from the security forces in the region .","On DATE the commander of FAC in the GPE village arrived in the applicant \u2019s village accompanied by soldiers and requested the applicant either to agree to be a village guard or to leave the village .","On DATE the applicant , along with CARDINAL members of his family , left his home and village since he was continually threatened with death .","The applicant arrived in his son \u2019s house in GPE and telephoned his brother who lived in his village . He learned that his home and its contents had been destroyed by security forces in TIME the day he had abandoned his village .","The applicant and his family are currently living in GPE .","","Government \u2019s version of the facts","The authorities began an investigation immediately after they had learned of the applicant \u2019s allegations . In this respect , on DATE the ORG Commander of the GPE village took statements from the applicant \u2019s brothers , PERSON and PERSON , who are currently living in the applicant \u2019s village .","PERSON stated :","\u201c I know PERSON . He is my elder brother . Until DATE we lived together in the same village . At the relevant time , his son PERSON went to GPE to find work . We learned that he had joined the mountain cadre of the ORG . I do not know whether my brother was involved in the NORP terrorist organisation . After his son had [ joined the ORG ] he wanted to emigrate to GPE . He did not tell us why he wanted to go GPE . He was thinking of finding a proper and better job . In DATE he emigrated to GPE of his own will . There has never been a [ military ] operation in our village neither before nor after [ DATE ] . Security forces did not force us to abandon our village . Nobody beat or threatened us in order to force us to evict the village . My brother PERSON was neither insulted nor beaten by any member of the security forces . We are not village guards . We were not subjected to pressure to agree to be village guards . We are living in peace in our village . It is not true that my brother PERSON left the village on account of the pressure or torture inflicted on him since he did not agree to be a village guard . His house was neither burned nor destroyed by the security forces . His house is in a good state . However , I removed the wooden parts of his house ( doors , windows and the roof ) DATE after he had left the village , considering that [ my brother ] would not return to the village . Some of the wood is in my stable . I used some of them . My brother PERSON knows that I removed the wooden parts of [ his house ] and I do not understand why he had slandered [ the security forces ] . However , I consider that he might have been tempted to lie by the ORG or his son in the mountain [ cadre ] . None [ of the houses ] has been burned or destroyed . Nobody was beaten , insulted or tortured in our village . We were not forced to agree to be village guards and we are still not village guards . I can return the wooden parts of my brother \u2019s house if he wants . They are at my place . I removed the wooden parts in order to protect them from decaying . My brother has QUANTITY of land in the village . We are using his land and paying him a rent . If my brother wants to return to the village he may live with us . We are not under pressure of the security forces ... \u201d","PERSON stated :","\u201c PERSON is my elder brother . We are currently living in the LOC hamlet of the GPE village attached to the Bismil district in the province of GPE . We are dealing freely with our works in the village . My brother abandoned the village DATE of his own will and emigrated to GPE . I do not know why he emigrated . In DATE his son PERSON went to GPE to work and later joined the mountain cadre of the ORG . Following this incident my elder brother emigrated to GPE . He emigrated of his own will . He was not subjected to pressure or oppression by security forces . There has not been an operation before or after DATE . We are not village guards . It is a lie that we were subjected to pressure to agree to be village guards . We still are not village guards . Me and my brother PERSON are taking care of our elder brother PERSON house and fields since he emigrated to GPE . Me and PERSON disassembled the wooden parts of ORG house . The other parts of the house are currently as they used to be [ in the past ] . My brother PERSON and I are cultivating [ PERSON ] \u2019s fields and sending the rent to him . It is absolutely a lie that we are subjected to pressure or oppression by security forces . Everybody is living freely and getting on with his own work . My elder brother PERSON left the village on his own will . The [ allegation ] that he was subjected to pressure to agree to be a village guard is a lie ... \u201d","On DATE ORG and the Deputy Commander went to the applicant \u2019s village to conduct a survey of the scene of the incident . A survey minute was drawn up and signed by the Commander , the Deputy Commander , the applicant \u2019s CARDINAL brothers , PERSON and PERSON , and CARDINAL inhabitants of the village . The survey minute stated :","\u201c On DATE [ we ] went to [ PERSON ] \u2019s village in order to carry out an investigation following his application to ORG . [ PERSON house was found . [ We ] , along with his brother PERSON , arrived to the house ORG had abandoned . Subsequent to the examination , it was observed that no demolition , burning or destruction had occurred . PERSON stated that he had disassembled the wooden doors , windows and the roof in order to protect them from decaying . It was further observed that some of the disassembled materials were used [ by PERSON ] , some were kept in his stable , the wooden materials were in a good state and did not bear any trace of fire . The villagers and his brothers were asked about the alleged acts complained of . They all stated that no operation had been carried out [ in the village ] and no destruction , burning or violence had occurred . [ They further stated ] that there was no village guard in the village and nobody was forced to agree to be a village guard . According to the statements of his brothers and the villagers it was understood that [ PERSON ] had left the village on his own will ... \u201d","On DATE the FAC Commander sent a letter to ORG informing it of the conclusion of the investigation carried out . He stated that on DATE no operation was carried out in the GPE hamlet of the GPE village , the villagers were not forced to agree to be ORG and there was no village guard in the village at the present time . He further stated that the records kept by the authorities indicated that [ PERSON ] had never applied to or lodged complaints with the [ administrative or judicial ] authorities .","On DATE the Bismil Public Prosecutor , accompanied by an expert and the applicant \u2019s brother PERSON , conducted a survey of the applicant \u2019s house . He noted in his report that the applicant \u2019s house had not been not destroyed or burned but its wooden parts had been removed and used by his brother PERSON . He further noted that CARDINAL pieces of wooden materials removed from the applicant \u2019s house were kept in his brother \u2019s stable and that they were in good condition and usable . On DATE , ORG took statements from CARDINAL inhabitants of the applicant \u2019s village , PERSON and PERSON . They told ORG that the security forces had not destroyed the applicant \u2019s house but his brother had removed its wooden parts . They further stated that the applicant had left the village of his own will as well as on account of the pressure from the ORG .","On DATE the Bismil Public Prosecutor and the District Governor sent letters to the Bismil ORG informing it that the applicant had not lodged an application as regards his complaints that he was forced to agree to be a village guard and that his house was destroyed by the security forces .","On DATE the Bismil Public Prosecutor issued a decision to discontinue the criminal proceedings against ORG , PERSON , subsequent to the investigation carried out into the applicant \u2019s allegations .","B. Relevant domestic law and practice","Administrative liability","Article CARDINAL of LAW provides as follows :","\u201c All acts and decisions of the administration are subject to judicial review ...","The administration shall be liable to indemnify any damage caused by its own acts and measures . \u201d","The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of \u201c social risk \u201d . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist instigators when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .","The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :","\u201c ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . \u201d","Criminal responsibility","It is an offence under LAW","- to make an unlawful search of an individual \u2019s home ( Articles CARDINAL and CARDINAL ) ;","- to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) or aggravated arson if human life is endangered ( Article CARDINAL ) ;","- to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or","to damage another \u2019s property intentionally ( Articles CARDINAL et seq . ) .","For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to Article CARDINAL of LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .","If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human life or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .","If the suspected author of a crime is an agent of the ORG , permission to prosecute must be obtained from a local administrative council ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .","Provisions on compensation","Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing . Damage caused by terrorist violence may be compensated out of ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23053","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2003,"docname":"YILMAZ v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant , Mr Muharrem Y\u0131lmaz , is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated a plot of land belonging to the applicant in GPE . A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place .","On DATE , following the applicant \u2019s request for increased compensation , ORG awarded him an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum .","On DATE ORG upheld the decision of the first - instance court . The due amount , which was CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP liras ( GPE ) including the interest , was paid to the applicant on CARDINAL DATE .","Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .","A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , \u00a7 \u00a7 CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , \u00a7 \u00a7 CARDINAL - CARDINAL ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5190","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2000,"docname":"SEHMI v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE and he is currently in prison in GPE , GPE . He is","In or DATE the applicant was charged with conspiring to contravene section CARDINAL of ORG DATE , contrary to section CARDINAL(CARDINAL ) of LAW DATE . The particulars of the offence were that DATE and DATE the applicant conspired with others to assist in the commission in the GPE of an offence punishable under the law of the GPE and corresponding to the law of GPE , namely , the manufacture of methylenedioxymethylamphetamine ( \u201c Ecstasy \u201d ) . The applicant was alleged to have played a role in arranging for the purchase of the constituent chemicals used in the production of Ecstasy from GPE for transportation to the GPE or GPE where the Ecstasy would be produced . Much of the evidence against the applicant and his co - conspirators came from a NORP under - cover police officer who had infiltrated the organisation in a joint NORP and NORP operation .","The trial of CARDINAL of the applicant \u2019s co - conspirators began in the GPE in DATE . They had been charged with a number of offences relating to the same conspiracy including charges relating to the manufacture of Ecstasy . The prosecutor requested a custodial sentence of DATE ( which took account of the time spent in pre - trial detention ) for ORG , who was alleged to be a main player in the conspiracy . However , the NORP court declared CARDINAL of the principal charges against ORG relating to the manufacture of Ecstasy inadmissible in so far as it related to acts committed outside the GPE and decided that that charge was otherwise not proven against him . DATE and DATE these co - conspirators were convicted on the other charges which were not directly related to Ecstasy production . ORG was found guilty of having been concerned in the importation of cannabis , of possession of firearms and ammunition , of possession of Ecstasy pills and of having being concerned in the supply of cocaine and amphetamines , and he was sentenced to CARDINAL months\u2019 imprisonment . The second accused was found guilty of offences almost identical to ORG and he was sentenced to CARDINAL months\u2019 imprisonment . The third accused was found guilty of having been concerned in the importation of cannabis , of handling CARDINAL stolen watches , of having been in possession of a pistol and of having been concerned in the supply of cocaine and amphetamines , and he was sentenced to CARDINAL months\u2019 imprisonment . The fourth accused was found guilty of having been concerned in the importation of cannabis and he was sentenced to CARDINAL months\u2019 imprisonment ( DATE of it being suspended ) .","In DATE the applicant pleaded guilty in ORG in GPE to the above - described charge against him . He pleaded not guilty to CARDINAL other related charges and these were not proceeded with . In DATE he was sentenced to DATE imprisonment . The maximum sentence was DATE imprisonment and he received a credit of CARDINAL in the light of his guilty plea . Submissions as to the lower sentences received by his co - conspirators in the GPE were rejected during his sentencing hearing .","Senior Counsel \u2019s advice dated DATE suggested requesting leave to appeal from a single judge of ORG ) on the basis that the appeal court would benefit from arguments addressing the terms of Recommendation No . R(CARDINAL)CARDINAL concerning sentencing policy and the effect of that recommendation on the case of PERSON ( [ DATE ] CARDINAL Cr . App . R ( S ) CARDINAL ) , which prohibited an NORP court from considering as relevant sentences imposed in other jurisdictions . The applicant applied to a single judge of ORG ) for leave to appeal against sentence to that court , arguing that the sentence imposed was excessive in that it was manifestly disproportionate to that imposed on his co - conspirators in the GPE . On DATE the single judge rejected the leave request , finding that there was no basis in LANGUAGE law upon which he could grant leave . He pointed out that the above - cited case of PERSON was binding upon him and that , in LANGUAGE sentencing terms , the sentence passed was unexceptional , the contrary not having been suggested by the applicant . He also found that a sentence suggested by a NORP prosecutor would not provide any basis to challenge what was otherwise an appropriate sentence imposed by an NORP court ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80213","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2007,"docname":"CASE OF W v. FINLAND","importance":3,"conclusion":"Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"Nicolas Bratza","text":["On DATE a mother contacted the police on account of a suspicion that her children , a girl born in DATE and a boy born in DATE , had been sexually abused by a neighbour , the applicant . On DATE and DATE the siblings were interviewed by a police officer experienced in investigating sexual abuse of children . The applicant was also suspected of having abused CARDINAL other girls , both friends of the siblings and born in DATE . The girls were interviewed by the police on DATE and CARDINAL DATE respectively and again on DATE . All the interviews were recorded on videotape .","At the time of the first interviews , i.e. on TIME of DATE , the applicant had not been informed of the suspicions against him and no defence counsel had yet been appointed for him . Neither the applicant nor his counsel was present during the later interviews . The siblings and CARDINAL of the other girls underwent a psychological examination in ORG with a view to assessing whether their testimonies during the pre - trial investigation were reliable .","Meanwhile , on TIME CARDINAL DATE the applicant was questioned by the police . Before the questioning he was notified of the suspicions against him and it appears that he did not exercise his right to have his counsel present . The applicant was in detention from DATE until DATE when travel restrictions were imposed on him . He was accompanied by counsel when questioned again on CARDINAL , DATE , DATE and DATE DATE and DATE . He was questioned alone on DATE .","Prior to the close of the pre - trial investigation , in his closing statement the applicant requested , on DATE , having watched the above - mentioned video recordings , that the siblings be questioned again and that his questions be put to them about how and where they had learnt about the sexual things they had mentioned to him and , in particular , if they had been subjected to sexual acts at a place other than the applicant 's home . His request was however refused on DATE . According to the Government , this was because their mother had refused to allow any further questioning of the children , now aged DATE .","The applicant was charged before ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) with having sexually abused the CARDINAL children during DATE . He denied the charges . He however admitted having tapped CARDINAL of the girls on their buttocks .","In DATE ORG held an oral hearing during which the applicant , the parents of the siblings and the mothers of the other CARDINAL girls gave evidence . The children were not heard in person . The videotaped interviews with the children were shown during the hearing . The court also heard evidence from a psychologist on the reliability of the statements of the siblings and of one of the other girls . The applicant did not request that the children give evidence at the hearing .","NORP The mother of the siblings testified that they had told her about the improper touching in the same manner as they had done on the videotape . When the touching had become known , on DATE , her son had reacted intensely by crying and slamming doors . He had also suffered from sleeping problems and her daughter had suffered from headaches . Neither of these ailments had occurred before . According to CARDINAL written opinions of ORG , the siblings ' accounts of the events were considered credible given their detailed and precise nature . There was nothing to suggest that they were the siblings ' own inventions . The mothers of the CARDINAL other girls testified that they had told them about the improper touching in the same manner as they had done on the videotape .","In its judgment of CARDINAL DATE ORG observed that the evidence was mainly of an indirect nature and that the sole direct evidence was the testimony of a psychologist , who had testified as to the children 's credibility .","The court noted that the applicant had argued that the main evidence in the case was flawed due to the fact that he had not been afforded an opportunity to put questions to the children and that the authorities had put leading questions to them . He had also argued that there were shortcomings insofar as the psychological examinations carried out by ORG were concerned . The court however found no such flaws as would significantly have reduced the evidentiary value of the examinations .","The court then stated that the case turned on an assessment of the credibility of the children 's statements . While it was true that the pre - trial statements ' probative value was weakened by the fact that the applicant had not been able to put questions to the children , these statements were nonetheless reliable as the children had provided details about the events and as their young age gave no reason to believe that they would have sought to lie about the events . Although some leading questions may have been put to the children , there was nothing to suggest that they would have sought to please the interviewer and adapted their replies accordingly . This being so , the court found that questioning the children in court would not have added anything significant to the case . Having regard to their best interests , the questioning of children of such a young age before a court could not be considered justifiable . The court found that the testimonies of the psychologist and the parents supported the credibility of the children 's accounts .","It convicted the applicant of having sexually abused the CARDINAL children and sentenced him to DATE and DATE imprisonment .","The applicant appealed , alleging inter alia a breach of LAW ( d ) of the LAW in that he had not been afforded an opportunity to put questions to the children .","ORG ( hovioikeus , hovr\u00e4tten ) held an oral hearing and was presented with the same evidence as had been before ORG . The parties agreed that it was in the best interests of the children that they should not be heard before the court . The applicant however rejected the admission of the children 's pre - trial statements as evidence since he had not been afforded an opportunity to put questions to them .","In its judgment of DATE ORG noted that the children had been interviewed twice during the pre - trial investigation and all but CARDINAL of the girls had been examined in ORG using tests and interviews . As the questioning of the children , now aged DATE , before the court would probably have caused them suffering , it was possible to use in evidence their pre - trial statements , although the applicant 's minimum rights under , inter alia , LAW ( d ) of the LAW would thereby be violated . In evaluating the weight to be attached to the children 's statements , the court found that it had to take into account the discrepancies pointed out by the applicant and the fact that the police had not put to the children the questions proposed by him in his pre - trial closing statement .","NORP In its assessment of the evidence the appellate court reached the same conclusions as the lower court and upheld the conviction . It however reduced the sentence to one year and DATE imprisonment , which it considered fair , having regard to the fact that the applicant had not forced the children into doing anything , the relevant sentencing practice and the fact that the applicant had no previous convictions .","NORP The applicant requested leave to appeal , maintaining , inter alia , that there had been a breach of LAW ( d ) of the Convention . He did not submit any request for the children to be heard .","On DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused leave to appeal .","The Decree on Criminal Investigations and Coercive Measures ( asetus esitutkinnasta ja pakkokeinoista , f\u00f6rordning om f\u00f6runders\u00f6kning och tv\u00e5ngsmedel ; Act no . DATE ) provides that when questioned during a pre - trial investigation the child must be treated with due respect having regard to his or her age and level of development . Where possible , the interview should be carried out by a police officer acquainted with that task . If need be , a doctor or an expert must be consulted before the interview ( LAW ) .","LAW ( esitutkintalaki , f\u00f6runders\u00f6kningslagen ; Act no . CARDINAL\/CARDINAL ) provides that questioning and other investigation measures requested by a party must be carried out , if that party shows that there is a possibility that these measures could have an effect on the case , provided that the expenses so incurred are not disproportionate to the nature of the case ( section CARDINAL ) . The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre - trial investigation and with the public prosecutor after the case has been transferred to him or her ( section CARDINAL(CARDINAL ) , Act no . CARDINAL\/CARDINAL ) . A pre - trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience . Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation ( section CARDINAL) .","NORP The investigator may permit a party and his counsel to be present during the questioning of another party or witness , provided this does not hinder the investigation of the offence ( section CARDINAL ) , Act no . CARDINAL ) . A party and his or her counsel may , with the permission of the investigator , put questions to the person being questioned in order to clear up the case . The investigator may decide that the questions are to be put through him or her . Also , the prosecutor may put questions to the person being questioned . A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also ( LAW no . CARDINAL ) .","Before the closing of the criminal investigation , the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation , if this is conducive to hastening or facilitating the hearing of the case in court . The statement is to be appended to the investigation record ( section DATE ) .","The Code of Judicial Procedure ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalken ) lays down the applicable rules on receiving testimony .","A statement in a pre - trial investigation record or another document may as a rule not be admitted as evidence in court . The court may exceptionally admit such a statement as evidence , if the witness in question can not be questioned before the court ( chapter DATE , LAW ; Act no . CARDINAL ) . A witness must give testimony orally before the court and must not refer to a written testimony . Oral evidence given during a pre - trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court ( chapter DATE , Article CARDINAL ; Act no . DATE ) .","If a person called as a witness is DATE , is mentally ill or mentally retarded , or his or her mental capacities have otherwise been impaired , the court shall , taking into consideration the circumstances , assess whether or not he or she may be heard as a witness ( LAW , LAW ) . Although the hearing of evidence from children falls within the court 's discretion , there has been a long - standing practice not to hear evidence in court from children under the age of ten .","At the time of the proceedings in question , there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre - trial investigation . There was however a practice to admit such recordings as evidence .","The Code of Judicial Procedure was amended with effect from CARDINAL DATE to the effect that the testimony of a person DATE , or a mentally disturbed person , recorded on audio or videotape during a pre - trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony ( LAW , Article CARDINAL ) ; Act no . CARDINAL ) . According to the explanatory report to the relevant Government PERSON ( no . CARDINAL\/CARDINAL ) , this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence .","Chapter DATE , Article CARDINAL ( as amended by Act no . CARDINAL\/CARDINAL ) of LAW reads with effect from DATE as follows :","\u201c ( CARDINAL ) A person who has not attained DATE or whose mental capacities have been impaired , may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and :","( i ) if the hearing in person is of significant relevance for the establishment of the facts of the case ; and","( ii ) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development .","( CARDINAL ) Where necessary , the court shall designate a support person for the person to be heard , pursuant to the provisions of LAW no . CARDINAL ) .","( CARDINAL ) The person to be heard shall be questioned by the court , unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of LAW . The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or , if the court finds it appropriate , directly to the person concerned . Where necessary , the hearing may take place on LOC other than the court room . \u201d","In DATE , LAW was supplemented with a new section LAW no . CARDINAL\/CARDINAL ) that entered into force on DATE and reads as follows :","\u201c The questioning of a victim or a witness must be recorded on videotape , or by using other comparable audio - visual means of recording , if there is an intention to use the statement given in the interview as evidence in court proceedings , and where it is not possible to hear the victim or the witness in person , due to his or her young age or mental disturbance , without causing likely harm to him or her . The special requirements set by the level of maturity of the questioned person for the methods used , for the number of participating persons , and for other conditions , must be taken into account in the questioning . The person in charge of the criminal investigation may decide that authorities other than the investigators may , under the supervision of the investigator , put the questions to the person being interviewed . The suspect must be provided with an opportunity to put questions to the questioned person . On the request of the suspect , he or she may also put the questions through a legal counsel or other representative . However , the investigator may order that the questions be put through his or her intermediary . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-d"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113750","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2012,"docname":"CASE OF ZHELYAZKOV v. BULGARIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["At TIME on DATE the applicant and his father went to ORG in PERSON to obtain a copy of a document . The clerk refused to give it to them . A quarrel ensued . A prosecutor came in and ordered the applicant to leave the LOC . A brawl ensued . The police , who had been called in , drew up a proc\u00e8s - verbal saying that , by insulting the prosecutor and trying to hit him , the applicant had committed an offence under the CARDINAL Decree on Combating Minor Hooliganism ( \u201c the DATE Decree \u201d \u2013 see paragraphs CARDINAL below ) . The applicant refused to sign the proc\u00e8s - verbal , saying that he would present his objections before a court .","TIME the police made an order for the applicant \u2019s detention under section CARDINAL(CARDINAL)(CARDINAL ) of ORG , then in force . The order said that the applicant was being detained for committing an offence under the DATE Decree .","At TIME on DATE the applicant was brought before ORG . He was assisted by CARDINAL counsel . The court heard the applicant , CARDINAL witnesses , and the applicant \u2019s counsel . In a decision of DATE it found the applicant guilty of an offence under LAW for insulting and trying to hit the prosecutor , and sentenced him to CARDINAL days\u2019 detention in the LOC of ORG . The court went on to order , by reference to LAW ( see paragraph CARDINAL below ) , that during his detention the applicant was to carry out socially useful work adapted to his health , age and professional skills ; he was to take part in public works on the territory of GPE . The decision was final and immediately enforceable .","The applicant was released at TIME on DATE . It is unclear what work exactly was carried out by him during his detention .","Decree No . CARDINAL of DATE on Combating Minor Hooliganism was passed by the then existing ORG of ORG under a simplified legislative procedure , as possible under LAW \u00a7 CARDINAL and LAW then in LAW . It was published in ORG on DATE , as required under section CARDINAL(CARDINAL ) of LAW DATE , as worded at that time . ORG has on a number of occasions said that the LAW has the same force as an ORG ( \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , I \u043e. ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 CARDINAL \u0433. , PERSON , \u043f\u0435\u0442\u0447\u043b\u0435\u043d\u0435\u043d \u0441\u0432 ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , I \u043e. ; \u043e\u043f\u0440. \u2116 DATE \u043e\u0442 CARDINAL \u043d\u043e\u0435\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 DATE \u0433. , PERSON , I \u043e. ) .","Article CARDINAL \u00a7 CARDINAL of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords , insults or other offensive words in a public place and in front of many people , in an offensive attitude towards other citizens or public officials , or in a quarrel , fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism . Such acts , if perpetrated by persons older than CARDINAL , carry a penalty of CARDINAL days\u2019 detention in the LOC of ORG or a fine ( LAW ) .","Under LAW , the penalty of detention in the LOC of ORG must be accompanied by work determined in accordance with the detainee \u2019s health , age and abilities . That work is not remunerated .","Cases under the Decree fall under the jurisdiction of the district courts ( Articles CARDINAL and CARDINAL ) . Until DATE Article CARDINAL provided that the court \u2019s decision was not subject to appeal . On DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. \u043f\u043e \u043a. \u0434. \u2116 DATE \u043e\u0442 DATE \u0433. , \u043e\u0431\u043d. , GPE , \u0431\u0440. CARDINAL \u043e\u0442 CARDINAL \u043c\u0430\u0439 DATE \u0433. ) ORG declared that rule unconstitutional . As a result , in DATE Article CARDINAL was amended and now provides , in paragraph CARDINAL , that the district court \u2019s decision to impose an administrative penalty may be appealed on points of law before the regional court within TIME . The case must be listed for hearing before the regional court not DATE after the district court \u2019s decision ( paragraph CARDINAL , as amended ) , and the regional court must rule , by means of a final decision , on DATE it receives the appeal ( paragraph CARDINAL , as amended ) . In the explanatory notes to the amendment bill the ORG referred to , inter alia , the need to bring the LAW into line with the LAW and this ORG \u2019s caselaw .","Under LAW of LAW DATE , persons serving a custodial sentence following their conviction of a criminal offence were entitled to receive CARDINAL MONEY of the remuneration due for their work .","Section CARDINAL(CARDINAL ) of the Execution of Punishments and PreTrial Detention Act DATE , which superseded LAW in DATE , provides that persons serving a custodial sentence following their conviction of a criminal offence are entitled to receive CARDINAL MONEY of the remuneration due for all work carried out by them except voluntary unpaid work and regular shifts to maintain order and hygiene .","ORG are recommendations of ORG to member ORG as to the minimum standards to be applied in prisons . States are encouraged to be guided by those rules in legislation and policies .","The DATE ORG ( Recommendation No . R ( CARDINAL ) DATE \u201c the DATE Rules \u201d ) were adopted on CARDINAL DATE .","Rule CARDINAL provides that \u201c [ t]here shall be a system of equitable remuneration of the work of prisoners \u201d .","The commentary in the Explanatory memorandum to the Rules says :","\u201c This rule recognises the importance and value of an adequate and equitable payment system in the context of treatment regimes . No provision to encourage the development of wages systems towards levels that apply for similar work in the community has been made in the rule itself as that would have been premature at this stage . However , a great deal of progress has been made in that respect in a number of countries and that is to be encouraged . ... \u201d","On DATE ORG adopted a new version of ORG , Recommendation Rec(CARDINAL)CARDINAL ( \u201c the CARDINAL Rules \u201d ) . It noted that the DATE Rules \u201c needed to be substantively revised and updated in order to reflect the developments which ha[d ] occurred in penal policy , sentencing practice and the overall management of prisons in LOC \u201d .","Rule CARDINAL provides that \u201c [ i]n all instances there shall be equitable remuneration of the work of prisoners \u201d .","The commentary on the CARDINAL Rules ( drawn up by ORG ) says that the level of remuneration of prisoners should be guided by the principle of mirroring conditions for workers on the outside , and that ideally all prisoners should be paid wages that are related to those in society as a whole ."],"violated_articles":["P7"],"violated_paragraphs":["P7-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75130","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"KOKLU v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant applied to ORG in order to cut CARDINAL of the trees on his land . On DATE the administration rejected his application on the ground that this part of the land was classified as forestland , therefore cutting of the trees therein was prohibited pursuant to the relevant legislation .","On DATE the applicant brought an action before ORG to annul the administration \u2019s decision .","On DATE the court notified the applicant \u2019s lawyer in writing that the court charges have not been paid .","On DATE the court further notified the applicant \u2019s lawyer that the adjudication of the case would be discontinued until the court \u2019s receipt of the relevant charges pursuant to LAW . On DATE the applicant \u2019s lawyer paid the court charges .","On DATE a new administrative court was established in ORG to adjudicate on the legal claims in GPE and GPE provinces with a view to lightening the case - load of ORG .","On DATE the case was transferred to the newly established ORG which immediately started the proceedings by requesting ORG to submit their observations on the merits of the case .","On DATE ORG submitted their arguments on the merits of the case together with a report on the classification of the location of the applicant \u2019s land supported by the relevant evidence .","On DATE ORG rejected the applicant \u2019s claim for annulment of the administration \u2019s decision .","On DATE the applicant appealed against this judgment before ORG .","On DATE ORG notified the applicant \u2019s lawyer that the court charges had not been paid and informed him that the adjudication of the case would be discontinued until the court \u2019s receipt of such payment . On DATE the applicant \u2019s lawyer paid the said charges .","On DATE ORG rejected his appeal against the administrative court \u2019s judgment .","On DATE the administrative court \u2019s judgment was communicated to the applicant ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96011","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF ALEKSANDR KRUTOV v. RUSSIA","importance":4,"conclusion":"Violation of Article 10 - Freedom of expression -{General}","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant published an article under the headline \u201c The Political Scene in DATE : ORG and ORG \u201d ( \u041f\u043e\u043b\u0438\u0442\u0438\u0447\u0435\u0441\u043a\u0438\u0435 \u0440\u0430\u0441\u043a\u043b\u0430\u0434\u044b DATE \u0433\u043e\u0434\u0430 : \u0441\u0442\u0430\u0440\u044b\u0435 \u043b\u0438\u0446\u0430 \u0438 \u043d\u043e\u0432\u044b\u0435 \u0432\u0440\u0435\u043c\u0435\u043d\u0430 ) in issue no . CARDINAL ( CARDINAL ) of the ORG newspaper . The article examined the interplay of political groups in GPE and , in particular , the part played by the prosecutor 's office of GPE and B. , the Saratov Regional Prosecutor .","B. sued the applicant and the editorial board for defamation before ORG . He claimed that the following extract from the article had damaged his honour , dignity and professional reputation :","\u201c Probably , only this [ the political union between the town hall and the regional prosecutor 's office ] can account for the regional prosecutor 's office 's perseverance in instigating criminal proceedings against members of the regional government ... , while at the same time shielding the serving officials of the town hall and the town legislature from criminal prosecution . For example , in the corruption - ridden case of the \u201c ORG \u201d , charges had been brought against CARDINAL member of the town legislature , Mr K[. ] , but shortly thereafter he was acquitted . And the mayor 's close circle , headed by PERSON A[. ] in person , was spared responsibility . In gratitude for support the town hall started supplying the prosecutor 's offices with ' gifts ' in the form of foreign - made cars and furniture . As to the regional prosecutor PERSON B[. ] , the town hall allocated to him under a CARDINAL lease agreement ( ! ) a plot of land in the courtyard of the block of flats where he lives ( allegedly for development ) . \u201d","ORG commissioned a linguistic examination of the impugned extract by CARDINAL experts from ORG .","On DATE the panel of CARDINAL experts returned their unanimous findings . In their assessment , the article did not give an appraisal of PERSON 's character , nor did it damage his honour or professional reputation . The publication might create the impression that the prosecutor 's actions had been unseemly and cast doubt on the lawfulness of a lease agreement for such a long term and the validity of its purpose . However , these issues called for a legal rather than a linguistic examination . The experts concurred that the words \u201c probably \u201d , \u201c only this can account for ... \u201d and \u201c in gratitude for support \u201d were expressions of the journalist 's personal opinion rather than statements of fact . The author did not allege that prosecutor PERSON had received any benefits for his support of the town hall . The journalist merely supposed that the prosecutor had not been impartial and that criminal charges against officials had been brought selectively .","On DATE the ORG of Saratov gave judgment , finding against the applicant for the following reasons :","'s article ] the plaintiff PERSON can not be viewed as a private individual because in the public perception \u2013 having regard to the fact that the plaintiff is a public figure DATE the plaintiff is PERSON , the citizen who holds the office of ORG and must observe higher standards in his personal and professional image and his DATE actions .","The court further considers that the term ' prosecutor 's offices ' employed in the article also referred to the plaintiff because , by virtue of his office , he is responsible for the operation of all the prosecutor 's offices in the entire GPE region .","Having regard to the above , the court considers that the excerpt from the article at issue is nothing but statements ( \u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f ) disseminated about the plaintiff that are damaging to his honour , dignity and professional reputation ...","The court does not consider proven the defendants ' argument that they disseminated a journalist 's opinion based on facts , because the author 's opinion must not only be founded on specific statements , but must also not damage the plaintiff 's reputation or honour and must not contain statements about the plaintiff 's unlawful conduct .","Since the purpose of expressing an opinion is to convey it to third parties , the form of its expression must exclude the possibility of misleading a reasonable third party as to whether such information is an opinion or a statement of fact .","The court considers that in the present case the defendants have failed to meet these requirements and the statements contained in the article are statements of fact amenable to proof in judicial proceedings ... \u201d","ORG noted that the underlying facts in the impugned excerpt were not disputed . Thus , criminal proceedings were indeed brought against certain members of the regional government , including the member of the town legislature PERSON had received a plot of land under the conditions indicated by the applicant , and the NORP town hall had put at the disposal of the prosecutor 's offices , free of charge , a ORG car , CARDINAL tables and CARDINAL filing cabinets .","NORP However , in ORG view , the applicant had failed to show that the mayor 's close circle had been \u201c spared responsibility \u201d and that furniture , a foreign - made car or a land plot had been offered \u201c in gratitude for support \u201d .","ORG held that the entire extract had been defamatory , ordered the newspaper to publish a rectification , and recovered MONEY each from the applicant and the newspaper .","On DATE the NORP ORG , on an appeal by the applicant , upheld the judgment .","Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .","Article CARDINAL provides that an individual may apply to a court with a request for the rectification of \u201c statements \u201d ( \u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .","The ORG ( in force at the material time ) provided that , in order to be considered damaging , statements ( \u0441\u0432\u0435\u0434\u0435\u043d\u0438\u044f ) had to be untrue and contain allegations of a breach , by a person or legal entity , of laws or moral principles ( commission of a dishonest act , improper behaviour in the workplace or in everyday life , etc . ) . Dissemination of statements was understood to mean the publication of statements or their broadcasting , inclusion in professional references , public speeches or applications to ORG officials , and communication in other forms , including oral , to CARDINAL other person ( section CARDINAL ) .","Section CARDINAL of the ORG governed the distribution of the burden of proof in defamation cases . The plaintiff had to show that the statements had indeed been disseminated by the defendant . The defendant had to prove that the disseminated statements were true and accurate ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108781","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2012,"docname":"CASE OF P.M. v. BULGARIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in PERSON .","According to the judgment of CARDINAL DATE of ORG , in TIME CARDINAL DATE the applicant , then aged DATE , was invited to a party at the home of Mr GPE There were several young people in the apartment . After some time Mr D.I. , then aged DATE , took the applicant to a separate room and threatened her , after which he raped her . Then he went out and Mr GPE , who was DATE , entered the room . He beat the applicant and attempted to rape her but was interrupted by his mother ringing the doorbell . Mr GPE asked the applicant and the other guests to leave .","The applicant told her parents that she had been raped , and they took her to the doctor and informed the police .","In a medical expert report of DATE experts of ORG established that there was an injury to the applicant \u2019s hymen and that she had several bruises on her head .","On DATE the applicant \u2019s mother lodged a written complaint with the police authorities against Mr GPE and Mr D.I.","The police carried out an inquiry , in the course of which it took statements from the applicant , Mr GPE and Mr GPE The CARDINAL suspects gave their addresses .","On DATE the PERSON district prosecutor opened criminal proceedings against Mr GPE and Mr D.I.","NORP On DATE Mr GPE was charged with attempted aggravated rape and was ordered not to leave the town pending the criminal proceedings against him . On DATE the investigator questioned him , the applicant and a witness .","In a letter of DATE the investigator requested the police to establish the full names and addresses of CARDINAL witnesses .","On DATE the investigator established that Mr D.I. had not appeared before him , although he had been duly summoned , and that the whereabouts of certain witnesses were unknown . He proposed that the criminal proceedings be stayed . By a decree of CARDINAL DATE the district prosecutor stayed the criminal proceedings against Mr GPE and Mr GPE , on the ground that the latter \u2019s whereabouts were unknown .","There is no information as to whether the authorities took any steps to find the persons concerned .","In a report of DATE a police officer stated that Mr D.I. had been found . The address specified in the report was the same as the CARDINAL Mr D.I. had given in his written statement of DATE . In a statement of CARDINAL DATE Mr GPE said that he had not changed his place of residence and that he had never been summoned by the investigator .","On DATE the district prosecutor resumed the criminal proceedings against Mr GPE and Mr D.I.","In a letter of CARDINAL DATE the investigator asked the district prosecutor to extend the period of investigation by DATE , stating that the work on the case had not been completed on time because of his involvement in other cases . On DATE the district prosecutor granted a DATE extension .","In a letter of DATE the district prosecutor instructed the investigator to take urgent measures to complete the investigation , informing him that the case would be subject to special monitoring .","On DATE Mr PERSON was charged with aggravated rape and was ordered not to leave the town pending the criminal proceedings against him . On DATE he was questioned before a judge .","In the period DATE and DATE the investigator questioned CARDINAL witnesses , and appointed CARDINAL experts to make a psychiatric and psychological assessment of Mr GPE , Mr GPE and the applicant , as well as a medical expert , who , on the basis of the documents in the file , confirmed the conclusions of the medical report of CARDINAL DATE .","The results of the preliminary investigation were communicated to Mr GPE and Mr GPE on DATE .","On DATE the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that the CARDINAL accused should be put on trial .","In a decree of CARDINAL DATE the district prosecutor terminated the criminal proceedings in respect of Mr GPE as time - barred . He found that a shorter prescription period was applicable to him because he had been under age at the time of the offence .","In a decree of CARDINAL DATE the district prosecutor terminated the criminal proceedings in respect of Mr GPE , finding that the charges against him had not been proved and that it would be practically impossible to gather any new evidence in view of the period of time which had elapsed since the events .","Following an appeal by the applicant , on DATE the ORG quashed the decree of DATE and resumed the proceedings in respect of Mr T.Z. It found that the district prosecutor should have ordered witness confrontations .","On DATE the district prosecutor referred the case back to the investigator for further examination .","In the period from DATE the investigator carried out CARDINAL witness confrontations .","A second psychiatric and psychological report was submitted in respect of the applicant on DATE . It confirmed that she had been able to understand the events of CARDINAL DATE and that she had not been able to effectively resist the mental and physical violence against her . It was unlikely that the applicant had testified under the influence of her parents .","On DATE the investigator ordered an expert examination of the clothes allegedly worn by the applicant on DATE of the incident , as well as of other items . Several expert reports were prepared in the period from DATE .","On DATE the results of the preliminary investigation were presented to Mr GPE On DATE the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr PERSON should be tried for attempted rape .","On DATE the district prosecutor once again terminated the criminal proceedings against Mr GPE for lack of direct evidence .","Following an appeal by the applicant , on DATE the PERSON regional public prosecutor \u2019s office upheld the decree of DATE . The applicant appealed further .","In a decree of DATE the GPE appeals public prosecutor \u2019s office quashed the decrees of CARDINAL DATE , DATE and DATE ( see paragraph CARDINAL above ) and referred the case back to the district prosecutor for further investigation . The district prosecutor was ordered to monitor the case and see to the lawful and timely completion of the investigation within DATE . The decision further stated that the applicant \u2019s account of the events had been corroborated by numerous pieces of circumstantial evidence and that the prescription period for prosecuting Mr PERSON had not expired because there was evidence of complicity between the CARDINAL accused which affected the legal characterisation of the charges .","On DATE the district prosecutor referred the case back to the investigator with instructions to gather additional evidence within DATE . On DATE this deadline was extended by DATE .","In a letter of CARDINAL DATE the district prosecutor instructed the investigator to send him the file as soon as possible . In a note of CARDINAL DATE the district prosecutor stated that he had reached an agreement with the investigator that the file would be sent by DATE .","A confrontation between the applicant and Mr GPE was carried out on DATE .","On DATE the applicant was questioned before a judge .","On DATE Mr GPE and Mr GPE were charged with aggravated rape and attempted aggravated rape respectively , committed in complicity , and were ordered not to leave the town pending the criminal proceedings . They were questioned on DATE .","A confrontation between the applicant and Mr GPE was carried out and CARDINAL witnesses were questioned before a judge DATE .","An expert report concerning a tear in the jeans allegedly worn by the applicant on the date of the incident was submitted on DATE .","The results of the preliminary investigation were communicated to Mr GPE and Mr GPE on CARDINAL and DATE respectively .","On DATE the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr D.I. and Mr PERSON should be tried on the charges .","An indictment against the CARDINAL accused was filed with ORG on DATE .","CARDINAL hearings scheduled for DATE and DATE were postponed because CARDINAL of the accused and the lawyer of the other accused had fallen ill .","A hearing was held on DATE . The applicant joined the proceedings as a private prosecutor . She did not bring a civil action .","On DATE and DATE ORG held hearings . The defendants did not plead the statute of limitations but asked the court to pronounce a judgment .","In a judgment of CARDINAL DATE ORG convicted PERSON D.I. of aggravated rape but relieved him from liability and punishment . It reasoned that although Mr D.I. had not pleaded the statute of limitations , the latter was nevertheless an absolute obstacle to his punishment . It further convicted Mr GPE of attempted aggravated rape and sentenced him to CARDINAL GPE imprisonment . It found that the long lapse of time since the rape represented a mitigating factor which must be taken into account in determining his punishment . The court acquitted the CARDINAL accused of the complicity charges .","Upon appeals by the applicant , the district prosecutor and Mr GPE , on DATE ORG upheld the judgment of DATE in respect of Mr D.I. This part of the judgment was not subject to appeal and became final .","ORG further terminated the criminal proceedings against Mr GPE as time - barred , finding that the prescription period for his prosecution had expired meanwhile .","On DATE the applicant \u2019s lawyer was informed of the judgment and of the applicant \u2019s right to appeal against the termination of the criminal proceedings against Mr GPE The applicant did not appeal .","Pursuant to the DATE LAW , in force at the relevant time and until DATE , as well as the constant case - law of ORG , the courts had to terminate criminal proceedings upon expiry of the statutory period of limitation . Nevertheless , the accused could request their continuation ( Article CARDINAL ) . In such a case , the court could find him guilty but could not punish him ( Article CARDINAL ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115476","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2012,"docname":"BREINESBERGER AND WENZELHUEMER v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by NORP \/ PERSON , lawyers practising in PERSON .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The first applicant had been employed by the ORG bank since DATE and became a member of the board of directors ( ORG ) in DATE . The second applicant became a member of the board of directors of the same bank in DATE .","In DATE preliminary investigations ( Vorerhebungen ) were initiated concerning the applicants on suspicion of aggravated fraud . The applicants were taken into pre - trial detention on DATE and were released again on DATE .","On DATE the PERSON public prosecutor issued a bill of indictment charging the applicants with the offence of aggravated fraud , alleging that from DATE the applicants had failed to repay commissions on loans to customers in CARDINAL cases , had failed to reimburse legal fees by recording them under the headings \u201c final entry \u201d or \u201c loan interest \u201d in CARDINAL cases and had charged higher interest on overdrafts than had been agreed in CARDINAL cases .","On DATE , and after DATE of hearings held DATE and DATE , ORG , sitting as a court with CARDINAL professional and CARDINAL lay judges ( ORG ) , convicted the applicants of aggravated fraud in respect of the first CARDINAL events , namely failure to repay loan commissions in CARDINAL cases and legal fees in CARDINAL cases , and sentenced each of them to CARDINAL months\u2019 imprisonment , DATE of which were suspended with probation . The judgment was delivered in public at the end of the fortieth day of hearings .","On DATE the applicants filed an application for acceleration of the proceedings ( Fristsetzungsantrag ) under section CARDINAL of LAW ( PERSON ) , requesting that a time - limit be set within which ORG must send them TIME hearing and the written judgment .","The written judgment of CARDINAL pages was served on the applicants\u2019 counsel on DATE .","On DATE the applicants lodged an application under LAW \u00a7 CARDINAL of LAW ( GPE ) seeking to extend the time - limit for lodging a plea of nullity and an appeal against the sentence , owing to the complexity of the case . By a decision of DATE ORG granted the application , referring to the complexity and volume of documentation in the case , and extended the time - limit for exercise of the remedies by a further DATE .","On DATE the applicants lodged a plea of nullity and an appeal against the sentence .","With a decision dated DATE the time limit for the PERSON public prosecutor to submit observations on the plea of nullity was extended by a further DATE . On DATE the PERSON public prosecutor submitted comments on the plea of nullity . The plea of nullity was transferred to ORG on DATE . On DATE ORG forwarded the file to the Attorney - ORG ( PERSON ) for observations . The Attorney - General \u2019s Office submitted its comments on DATE , which were served on the applicants on DATE , together with the information that they could lodge their observations on the comments within DATE .","On DATE the applicants made an application seeking to extend the time - limit in which to submit observations on the ORG \u2019s Office \u2019s comments by DATE . The application was granted by ORG on DATE .","On DATE the applicants submitted their comments on the Attorney ORG observations .","In a judgment of CARDINAL DATE concerning the plea of nullity , served on counsel on CARDINAL DATE , ORG quashed the parts of the conviction that related to CARDINAL counts of alleged fraud regarding the failure to repay commissions on loans to customers , but dismissed the remainder of the plea of nullity as unfounded . However , in accordance with its decision on the CARDINAL counts in question , ORG also quashed the sentence passed by ORG and referred the case back to the first - instance court for a retrial with regard to the CARDINAL counts and for sentencing .","The PERSON public prosecutor subsequently withdrew the bill of indictment in so far as it concerned those CARDINAL counts .","On DATE ORG , to which it only remained to decide on the overall sentence in respect of the applicants , sentenced each of the applicants to CARDINAL years\u2019 imprisonment , suspended with probation for DATE . The case was then sent to ORG for determination of the appeal against the sentence .","On DATE ORG partly upheld the public prosecutor \u2019s appeal and sentenced each of the applicants to twentyfour months\u2019 imprisonment , DATE of which were suspended with probation for DATE .","That judgment was served on the applicants\u2019 counsel on DATE .","Article CARDINAL \u00a7 CARDINAL of LAW ( GPE ) at the material time provided that a complainant could submit a plea of nullity , giving reasons , within DATE after service of the written first - instance judgment .","Paragraph CARDINAL of the provision provided at the material time as follows :","\u201c Where the proceedings are on an extremely large scale the first - instance court shall , if the applicant so requests , extend the time - limit referred to in paragraph CARDINAL by the length of time required DATE particularly in view of the exceptional length of the trial or the exceptional volume of TIME of the proceedings , the remainder of the case file or the written judgment \u2013 in order to ensure adequate preparation of the defence ( LAW ( b ) of ORG . CARDINAL , and LAW No . CARDINAL thereto , ORG . DATE ) or of the prosecution of the case . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76762","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2006,"docname":"CASE OF PEARSON v. THE UNITED KINGDOM","importance":3,"conclusion":"No violation of Art. 14+P1-1","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","The applicant , aged CARDINAL , would not become eligible for a State pension until he was CARDINAL , whereas a woman could claim a State pension from DATE . He was currently unemployed but if he returned to work he and any potential employer would be liable to make national insurance contributions .","On DATE , the applicant issued proceedings for damages in ORG against ORG , alleging inter alia that the refusal to pay him a pension from DATE was discriminatory . On DATE , the applicant \u2019s claim was struck out on the basis that the particulars of claim disclosed no reasonable grounds for bringing the claim ( Civil Procedure Rule CARDINAL . ) . On DATE , permission to appeal was refused .","Section CARDINAL of ORG DATE defines \u201c pensionable age \u201d as :","\u201c ( a ) DATE , in the case of a man ; and","( b ) DATE , in the case of a woman \u201d .","Section CARDINAL of the Pensions Act DATE provides for the equalisation of State pension ages for men and women to DATE . GPE pension age for women will increase gradually from DATE and the equalisation will be complete in DATE . At the same time , the age until which women are liable to pay national insurance contributions will gradually increase in line with the increase in GPE pension age .","Council Directive CARDINAL\/CARDINAL\/EEC of DATE provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security . However , in LAW provides for derogation in the matter of \u201c the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences therefore for other benefits \u201d .","In Case C-CARDINAL\/CARDINAL The Queen v. Secretary of ORG , ex parte ORG [ DATE ] ECR CARDINAL - CARDINAL ( \u201c the ORG case \u201d concerning a reference for a preliminary ruling from ORG ) , ORG found that :","Article CARDINAL had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old - age and retirement pensions and also forms of discrimination which are necessarily linked to that difference ;","Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where , having regard to the financial equilibrium of the national pension system in the context in which it appears , it can not be dissociated from a difference in pensionable age ;","In view of the advantages allowed to women by national pension systems , in particular as regards statutory pensionable age and length of contribution periods , and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from DATE to the next in respect of those periods , the ORG legislature intended to authorise the progressive implementation of that principle by the member ORG and that progressive nature could not be ensured if the scope of the derogation authorised by LAW were to be interpreted restrictively ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","P1"],"non_violated_paragraphs":["P1-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5588","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2000,"docname":"SCHMELZER v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Antonio Pastor Ridruejo","text":["The applicant is a NORP national , born in DATE and living in GPE ) . The respondent Government are represented by their Agent Mr PERSON , ORG , of ORG .","On DATE ORG ( ORG ) convicted the applicant , a recidivist offender , of having driven a motor vehicle without a driving licence and , having regard to his preceding conviction of such offences , it fixed a global sentence of DATE imprisonment . The execution of the sentence was suspended until DATE . The court further ordered that the applicant should not be issued a driving licence before DATE . The applicant \u2019s appeal was dismissed by ORG ( Landgericht ) on DATE . On DATE the applicant left ORG and moved to the GPE , where he officially took residence in GPE . On DATE he was issued a NORP driving licence . On DATE he moved back to GPE and took residence at his previous address in GPE .","On DATE the applicant was stopped by the police when driving a car . Having only the NORP driving licence , criminal proceedings were commenced against the applicant on the suspicion of having driven a motor vehicle without a valid driving licence . In these proceedings , he was assisted by defence counsel .","By indictment of DATE , ORG ) charged the applicant of having driven a motor vehicle without a valid driving licence . It further requested the competent ORG to seize the car in question as there were strong reasons to assume that it was liable to forfeiture and to consider the question of a resale ( GPE ) .","On DATE ORG issued a warrant to search the applicant \u2019s LOC and his cars and to seize the applicant \u2019s car with the registration number PERSON . The court found that there was a strong suspicion that on DATE the applicant had driven this car without a valid driving licence . In this respect the court considered that , following his conviction of driving without licence in DATE , he should not have been issued a new one before DATE . When stopped , he had shown a NORP driving licence , passed in the GPE in DATE . This licence was , according to the court , not valid in GPE as , at the relevant time , though not having been registered in GPE between DATE and DATE , he had in fact been living there . The car was to be seized as object used when committing the offence , liable to forfeiture on account of his recidivism . The measures were carried out on DATE .","On DATE ORG informed the applicant that , taking into account the costs of storage and the value of the car , its resale was envisaged . The applicant \u2019s representative objected on DATE .","On DATE ORG committed the applicant for trial . Subsequently , it ordered an opinion as to the value of the car .","On DATE ORG ordered the sale of the seized car under LAW lit . l ( CARDINAL ) of LAW ( Strafprozessordnung ) , as the costs of storage by far exceeded its value . In this respect , the court had regard to the opinion of a technical expert according to which the remaining value was CARDINAL , whereas at the relevant time the costs amounted to CARDINAL ORG and were increasing at a DATE rate of DM CARDINAL .","On DATE , upon the applicant \u2019s objection , ORG suspended the resale .","On DATE ORG ( Landgericht ) dismissed the applicant \u2019s appeal , confirming the ORG reasoning . It added that in assessing the value of the car , objective criteria were relevant and not the applicant \u2019s subjective impression .","On DATE the trial opened before ORG . Having heard the applicant , an expert and several witnesses , the competent judge proposed to adjourn the proceedings in order to conduct further investigations . DATE , a decision to stay the proceedings provisionally , pursuant to section CARDINAL of LAW , was issued .","On DATE ORG ordered the seizure of the applicant \u2019s bank statements to investigate whether he had stayed for a longer period in the GPE and issued checks there .","DATE , the court ordered that the resale of the car be continued , as the suspicion against the applicant had not been dissipated at the hearing of DATE . The applicant \u2019s assertion that he had repeatedly returned to ORG in order to fetch his mail was not convincing . On CARDINAL DATE the bailiff was instructed to proceed to the resale . Upon the applicant \u2019s objection , the resale procedure was suspended pending the outcome of these proceedings .","On DATE ORG dismissed the applicant \u2019s appeal against the decision of CARDINAL DATE . ORG confirmed the reasons advanced by ORG . It also found that the resale could be continued irrespective of the provisional discontinuation of the trial . It considered that the reference to section CARDINAL had been erroneous . Section CARDINAL provided that , upon the prosecutor \u2019s request , proceedings could be provisionally stayed where the penalty to be expected in the case of a conviction was almost negligible in comparison with a penalty for another offence . However , ORG had not made such a request . Rather , the correct interpretation of the decision at issue was that ORG had adjourned the proceedings sine die for the purpose of further investigations , which it had ordered DATE .","The car was sold on DATE for CARDINAL ORG , paid to the ORG .","On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant 's constitutional complaint ( ORG ) .","On DATE , in the context of another set of criminal proceedings pending before ORG , the applicant was sentenced to DATE and CARDINAL months\u2019 imprisonment . He was found guilty of , inter alia , several offences in connection with having illegally run a dump for dangerous waste , offences under LAW and CARDINAL counts of driving without licence , committed DATE and DATE .","On DATE ORG , referring to the applicant \u2019s conviction of CARDINAL DATE , requested that the proceedings before ORG be provisionally stayed pursuant to section CARDINAL \u00a7 CARDINAL of LAW .","On DATE the proceedings were provisionally stayed .","In the meantime , on DATE , the GPE - Bingen ORG ( PERSON ) , having regard to the NORP driving licence obtained in DATE , issued the applicant a NORP driving licence .","According to section CARDINAL(CARDINAL ) lit . CARDINAL of FAC ( Strassen - verkehrsgesetz ) , driving a motor vehicle without the requisite licence is a criminal offence punishable with imprisonment not exceeding DATE or with a fine . In such cases , the motor vehicle to which the offence relates may be confiscated if the perpetrator drove the vehicle although , inter alia , his driving licence had been withdrawn ( section CARDINAL ) ) .","Driving a motor vehicle with a foreign driving licence is governed by LAW Verordnung \u00fcber den internationalen GPE ) . According to its paragraph CARDINAL lit . b , a person with a driving licence issued in a Member State of ORG is entitled to drive a motor vehicle in GPE if not permanently resident there . According to paragraph CARDINAL lit . a are excepted from this general rule persons who had their permanent residence in GPE at the time when the foreign licence was issued . Persons have their permanent residence where they effectively live for a period of DATE .","Section CARDINAL of the Code of Criminal Procedure , as in force at the material time , provided for the confiscation of objects generated by or used or intended for use in the commission of preparation of a criminal offence . Such confiscation was only permissible if , inter alia , the perpetrator owned the object in question ( section ORG ) lit . CARDINAL ) .","According to section CARDINALb of LAW , as in force at the material time , confiscation of an object under , inter alia , section CARDINAL ) ORG should not be ordered if disproportionate to the importance of the offence in question .","Confiscation may also be ordered in cases where , for factual reasons , no specific person can be prosecuted or convicted or where the court discontinues the proceedings under provisions granting the prosecutor \u2019s office or the court discretion for doing so ( section DATE a of LAW ) .","According to section CARDINAL b , as in force at the material time , objects may be seized pursuant to section CARDINALc , if there are compelling reasons to assume that the conditions for their forfeiture or confiscation are met . Section CARDINAL c provides that the confiscation of movable assets is effected in taking them into public custody or indicating the seizure by seal or in some other way ( section CARDINAL c(CARDINAL ) ) ; that objects so seized may be resold before a final judgment inter alia if the cost of storage is excessively expensive or difficult , the proceeds being substituted for the object in question ( section CARDINAL l ( CARDINAL ) ) .","Section CARDINAL of the Code of Criminal Procedure provides that the public prosecutor may decide not to prosecute where the penalty to be expected if a conviction is secured is almost negligible in comparison with a penalty imposed on the defendant - or which he must expect to be imposed - for another offence ( section CARDINAL ) ) . Once the proceedings have been instituted , the court may provisionally stay them at any stage on an application by the public prosecutor ( section CARDINAL(CARDINAL ) ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69165","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2005,"docname":"CASE OF DEBELIC v. CROATIA","importance":3,"conclusion":"Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in LOC .","On DATE a company J. ( \u201c the company \u201d ) instituted civil proceedings against the applicant in ORG ( PERSON u ORG ) seeking restitution of business premises in the applicant 's possession and payment of rent .","On DATE the applicant filed a counterclaim against the company seeking payment of a certain amount of money on the basis of his investments in the business premises .","NORP The CARDINAL cases were joined .","On DATE ORG decided in the company 's favour . At the same time it dismissed the applicant 's claim as inadmissible because the company had meanwhile gone bankrupt and the applicant failed to report his claim in bankruptcy .","The applicant appealed against that decision . On DATE the High Commercial Court ( ORG trgova\u010dki sud PERSON ) upheld the first instance judgment .","On DATE the applicant filed a request for revision on points of law ( revizija ) with ORG ( PERSON ) .","On DATE ORG dismissed the applicant 's request on its merits . That decision was not served on the applicant until DATE .","Meanwhile , on DATE a new section CARDINAL ( a ) , which subsequently became section CARDINAL of LAW entered into force , introducing a domestic remedy for length of proceedings in form of a constitutional complaint .","In line with the new legislation , on DATE the applicant filed a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining about the length of the proceedings .","On DATE ORG dismissed the applicant 's complaint because ORG had meanwhile decided his case .","DATE of the LAW guarantees , inter alia , the right to a court which shall decide on an individual 's rights and obligations within a reasonable time .","The relevant part of section CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL\/CARDINAL , of CARDINAL DATE ; \u201c the LAW \u201d ) reads as follows :","\u201c CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which decided about his or her rights and obligations , or about suspicion or accusation for a criminal act , has violated his or her human rights or fundamental freedoms guaranteed by LAW , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...","If another legal remedy is allowed against the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .","In matters in which an administrative action or , in civil and non - contentious proceedings , a revision on points of law are allowed , remedies are exhausted only after the decision on these legal remedies has been given . \u201d","The relevant part of CARDINAL of LAW reads as follows :","\u201c CARDINAL . The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant 's rights and obligations or a criminal charge against him or her within a reasonable time ...","If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the court with jurisdiction must decide the case on the merits ...","In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . \u201d","The relevant part of LAW ( Zakon o parni\u010dnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL ) in the relevant part reads as follows :","ORG provides that a request for revision on points of law may be filed against the second instance judgment within DATE following its service on the party . It also enumerates cases in which such a request is allowed .","Sections CARDINAL and CARDINAL provide that ORG , in case it finds a request for revision on points of law well - founded , may quash the second instance judgment and remit the case or , in certain cases , it may also reverse the second instance judgment ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88770","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF ALBEKOV AND OTHERS v. RUSSIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicants were born in DATE , DATE and DATE respectively . The first applicant lives in the village of GPE and the second and third applicants live in the village of GPE , GPE district , in GPE . The first applicant is a brother of PERSON , the second applicant is a brother of Mr PERSON and the third applicant is the mother of Mr Nokha LANGUAGE .","The facts of the case are partially disputed by the parties . The principal discrepancies may be summarised as follows .","DATE and DATE military unit no . DATE was stationed near GPE , a village of CARDINAL residents .","According to the applicants , the military unit occupied land used by the residents for tillage and pasture , and soldiers mined the area around the unit and in the adjacent parts of the communal forest using anti - personnel mines and , specifically , mines with a trip wire .","According to the Government , the mines in the forest were planted by illegal armed gangs .","NORP In statements submitted by the applicants , the head of the local administration and other residents alleged that there had been several incidents since DATE in which cattle and people had been injured by mines . The head of the administration stated that he had asked the military to remove the mines from the land used by the villagers but that the incidents had continued .","According to the Government , the population of GPE was regularly warned by the military that mines had been laid by armed gangs in the forest . They said that the minefield around the military unit was marked .","On DATE at TIME the first applicant \u2019s brother , PERSON Vakhazhi Albekov , born in DATE , went to the meadow to collect the family \u2019s cattle from a field situated QUANTITY from the village . He was wearing a black jacket with a hood , a black sweater , blue sports trousers and black rubber boots . At TIME another villager , PERSON , met PERSON in the meadow and the latter told him that he was going north to collect the calves . As a rule it took very little time to collect the cattle and return , and at TIME his family became concerned .","At about the same time another resident of the village , Mr M. , was in the southern part of the pasture and heard an explosion somewhere to the north . He was scared and decided to return home along the road . On the road he was fired at by soldiers returning to the military unit , but escaped unharmed .","After TIME Mr Vakhazhi Albekov \u2019s relatives and neighbours decided to search for him . They broke up into small groups and searched the pasture land and a short way into the forest , shouting his name . At QUANTITY they decided to report his disappearance to the military unit and ask for assistance . The first applicant \u2019s sister , along with the head of the village administration , PERSON , and CARDINAL other neighbours , went to the location of the military unit . Only Mr E. was allowed to enter and a serviceman informed him that they had no news of Mr Albekov and that they had not detained anyone .","On TIME on DATE Mr E. went to the district centre of GPE and reported Mr. PERSON \u2019s disappearance to the district authorities , namely the police station , the military commander and the head of the administration .","At the same time villagers continued to search for Mr Vakhazhi Albekov in the pasture land and forest . At TIME the second applicant and PERSON PERSON found Mr PERSON \u2019s body in a pit in the forest , QUANTITY from the road and QUANTITY from the military unit . The body was lying face down , and the upper part of the body had been disfigured by an explosion . The CARDINAL men noticed the remains of tape on the body and recognised the clothes he had been wearing . Nearby they found his passport , which was intact . They also noted footprints on the ground , allegedly made by military boots , leading towards the military unit . They did not touch the body as they were afraid that it was mined .","At TIME on DATE the first applicant \u2019s brother , PERSON , and another villager went to the military unit with a request for sappers who could check if the body had been mined . The military refused and suggested that they should seek help in GPE . While waiting at the barrier of the military unit for an answer , PERSON heard an explosion from the north - eastern part of the forest . Later they learnt that this was an explosion , which had injured Mr NORP and Mr PERSON .","After the refusal by the military to help retrieve Mr Albekov \u2019s body , the residents decided to recover it themselves . They tied a long rope to CARDINAL of his legs and pulled the body from a distance of QUANTITY . Mr Vakhazhi Albekov was buried on DATE in the village cemetery . His relatives did not seek medical or other professional examination of the body before burial .","NORP The villagers searching for Mr Vakhazhi Albekov on DATE divided up into several small groups . At TIME one such group , consisting of Mr PERSON , born in DATE , the second applicant \u2019s brother , and PERSON , were blown up by a booby - trap mine in the forest . The sound of that explosion was heard by PERSON , who was at the gate of the military unit .","Mr I. , who was injured on the right side of his body and in both legs , managed to reach a roadblock near the village of ORG , which is QUANTITY from GPE . The soldiers stopped a passing car , and the driver , who happened to be a resident of GPE , took Mr I. home . PERSON told the other villagers that they had been blown up by a mine and that PERSON had been seriously injured in the same blast and had lost a leg . The head of the local administration again appealed to the military unit , asking them for sappers and for medical assistance . The military refused to send sappers , but a military doctor attended PERSON at his home at TIME and gave him first aid . He did not issue any medical documents in respect of PERSON injuries .","When the residents of the village were informed by PERSON that PERSON PERSON was seriously injured , they immediately went to look for him . They again broke up into small groups and entered the forest . CARDINAL of Mr PERSON cousins , namely PERSON , born in DATE , the third applicant \u2019s son , and PERSON , volunteered to check the most dangerous sites , such as ravines , pits and abandoned dugouts . While checking a dugout in the north - eastern part of the forest , Mr Nokha NORP was blown up by a mine . Mr Sh . PERSON rushed to his aid and was also blown up . As a result each received serious injuries to their right legs , which were later amputated in hospital . CARDINAL of Mr Nokha Uspanov \u2019s fingers were also seriously injured and later had to be amputated . His left leg was fractured . Other residents brought the men to the village , where they were attended to by the first applicant .","On TIME Mr Nokha Uspanov and Mr Sh . PERSON were taken by their relatives to a hospital in GPE , where they were operated on DATE . Mr NORP \u2019s right leg was amputated at shin level and CARDINAL fingers on his right hand were also amputated ; PERSON \u2019s right leg was amputated at ankle level . They remained in hospital until DATE .","On TIME the head of the village administration , together with residents of GPE and ORG , again went to the military unit and asked for sappers in order to find Mr PERSON and to prevent further casualties . This time the commander of the military unit ordered an armoured personnel carrier ( ORG ) and CARDINAL sappers to assist the villagers . The sappers had a map of the area , presumably indicating minefields . They used it to reach the body of Mr PERSON , who had died in the meantime . His left leg had been torn away by the blast and he had other injuries . The body was brought to his home in GPE with the help of the military . He was buried on DATE in the village cemetery . His relatives did not contact any medical personnel or authorities before the burial .","According to the applicants , on DATE a group of officials arrived at GPE . They included individuals from the GPE district police , the military commander \u2019s office and the prosecutor \u2019s office . Accompanied by local residents , they filmed the site where PERSON Vakhazhi Albekov \u2019s body had been found . They also visited Mr PERSON \u2019s home , where they took photographs and filmed the body . They also questioned a number of witnesses who had participated in the search and retrieval of the body . The officers drew up a report on Mr Vakhazhi Albekov \u2019s sweater and an axe he had been carrying to protect himself in case of attack by wild animals . None of the witnesses recalled signing any papers or statements .","The officers assured the first applicant that a criminal investigation would be conducted into the circumstances of the deaths . They gave him the name of the prosecutor responsible for the case in the district prosecutor \u2019s office . After his brother \u2019s funeral , the first applicant , who worked in ORG , tried to meet the prosecutor on CARDINAL occasions but was denied access to the building on each occasion on the ground that the prosecutor was absent .","The first applicant \u2019s sister , PERSON , also tried at some stage to inquire about the investigation into her brother \u2019s death . She submitted that a prosecutor had shouted at her and turned her out of his office . The first applicant \u2019s family made no further attempts to inquire about the investigation .","On DATE an official from military unit no . CARDINAL issued a certificate to Mr Nokha Uspanov , confirming that he had received a blast injury while looking for cattle near the village of GPE .","On DATE the head of the village administration issued a note which contained the following account of the events of CARDINAL DATE :","\u201c At TIME on DATE a resident of GPE , ORG , born in DATE , went to look for his cattle and did not return . The whole village went out to look for him . By TIME the search had produced no results and we applied to the headquarters of the federal forces , who denied any knowledge of him . The following day in the morning we applied to them again , because the pasture land and surrounding forest are mined . By TIME on DATE we were told that PERSON had been found dead at the edge of the village , blown up by a ORG block . On DATE we notified the district police authorities , who came and started a criminal investigation .","PERSON , born in DATE , who went to search for PERSON on DATE , did not come back to the village . Another man who was with him , [ I. ] , informed the villagers that [ PERSON ] was seriously wounded ; meanwhile [ I. ] , also seriously wounded , reached the road near the village of ORG , from where he was brought back by another resident .","Another group of villagers went to look for PERSON , knowing that he had been seriously injured and needed help . Nokha NORP and [ Sh . M. ] went by a separate path , hoping to be the first [ ones ] to reach him . They stated later that first Nokha LANGUAGE was blown up by a mine , and then [ Sh . M. ] , trying to reach him . Another group took them home , where they were given first aid by the village doctor .","For the third time I asked the federal forces for help , but at the roadblock they told me that they could not send sappers and reconnaissance groups , as they were busy . On DATE I asked them again , and finally they provided an ORG and a group of sappers , who found PERSON already dead and brought his body home . \u201d","According to the second applicant , he was not questioned by any investigators about the circumstances of his brother \u2019s death . However , in DATE , during a \u201c sweeping \u201d operation in GPE , he and several other men from the village , including Mr Nokha Uspanov , were detained by NORP soldiers , beaten up and questioned about the circumstances of his brother \u2019s death . The second applicant was also asked if he had complained anywhere about the incident , and replied in the negative . He was released DATE , and was too scared to apply to any other officials .","The third applicant submitted that her son , Mr Nokha LANGUAGE , had remained in hospital for DATE after the injury sustained on DATE . His right leg was operated on twice , because his wound had become infected after the first amputation . After being discharged from hospital her son remained at home , suffering from severe pain and requiring constant care for DATE . On DATE Mr Nokha LANGUAGE , along with a few other men from the village , was detained by soldiers during a \u201c sweeping \u201d operation . The applicant had no news of her son for DATE , despite having personally visited the military commander \u2019s office , the local administration and other authorities . At DATE her son \u2019s body was discovered on the outskirts of the village of ORG . The third applicant submitted that her other son , PERSON , born in DATE , had been killed in DATE . She further submitted that after DATE she had not applied to any authorities in relation to the events of DATE , because she had been afraid and had not trusted any officials .","On DATE the NORP district civil registry office issued death certificate no . CARDINAL in respect of Mr Vakhazhi Albekov , stating that he had died in GPE on DATE .","According to the Government , until DATE no applications for institution of criminal proceedings were submitted by relatives of the deceased persons to the prosecutor \u2019s offices of GPE . After the receipt on DATE of unspecified materials concerning the explosions , ORG conducted an inspection . On DATE , having regard to the results of the inspection , the district prosecutor \u2019s office refused to institute criminal proceedings on the ground that there was no indication that a crime had been committed .","On DATE a lawyer from ORG wrote to ORG and asked for an update on the criminal investigation into the death of Mr Vakhazhi Albekov . No reply was received . In DATE the head of the village administration was visited by various officers from the district police station . He was questioned about the circumstances of the events of DATE , but was not asked to sign any papers .","The Government submitted the following information on the subsequent progress of the investigation .","On DATE the decision of CARDINAL DATE , refusing to institute criminal proceedings , was quashed by the district prosecutor . However , on DATE , following the results of an additional inspection , another decision was given refusing the institution of criminal proceedings .","On DATE the Prosecutor \u2019s Office of GPE quashed the decision of DATE refusing the institution of criminal proceedings . On the same date criminal investigation no . DATE was instituted into the death of Mr Vakhazhi Albekov . On DATE criminal investigation no . CARDINAL was instituted into the death of Mr PERSON and the injuries sustained by PERSON Nokha Uspanov , PERSON and Mr NORP ORG was responsible for the investigations .","On DATE an inspection of the crime scene was carried out . In the course of the inspection an unspecified metal fragment was seized . It was later examined with unspecified explosives . In addition , at the prosecutor \u2019s request , ORG ordered the exhumation of the corpses of Mr Vakhazhi Albekov , Mr PERSON and Mr Nokha Uspanov . However , that order could not be enforced because the relatives of the deceased persons objected to the exhumation . A forensic examination was then conducted on the basis of the medical documents available . According to the results of the examination , the injuries sustained by Mr Nokha NORP and PERSON were described as serious .","On DATE PERSON . A. , the sister of PERSON , was granted the status of victim in the criminal proceedings and questioned . She confirmed that on DATE her brother had gone to the meadow to collect the cattle from the field and had been killed by an explosion not far from the village . In the course of the search for him other villagers had been injured in similar circumstances . PERSON submitted that neither she nor her relatives had lodged any complaints with the law - enforcement bodies in connection with the events and she did not consider her rights to have been breached .","Also on DATE the father of Mr Nokha Uspanov and the brother of PERSON were granted the status of victims in the criminal proceedings . Mr NORP \u2019s father stated that on DATE his son had gone to search for Mr Vakhazhi Albekov and had been injured by an explosive device . He had not filed any complaints with the law - enforcement agencies in this respect . Mr PERSON , PERSON brother , stated that the military unit stationed near the village had provided transport and sappers who had found Mr PERSON and had brought his body to the village of PERSON . The villagers then had taken his body to GPE and had buried him on DATE . Neither Mr PERSON nor his relatives had filed any complaints with the law - enforcement agencies in connection with the incidents .","Mr PERSON , Mr Nokha Uspanov \u2019s cousin who was questioned on the same date , submitted that in DATE Mr LOC had disappeared after going to collect cattle . His body had been found in a dugout in the forest . His body had been lying face down and there had been a wound on his right side . There had been no injuries on other parts of the body . Later he had learned that Mr PERSON , Mr Nokha NORP and Mr M. Sh . had also been blown up by mines .","The third applicant , who was questioned on DATE , submitted that in DATE her son , Mr Nokha LANGUAGE , had gone to search for Mr Vakhazhi Albekov . He had returned home to have lunch and then had gone out again . Later her brother - in - law had come to tell her that Mr Nokha Uspanov and PERSON had been injured . They had stayed in the NORP hospital for DATE and then had continued treatment at home . Mr Nokha Uspanov had never told her what exactly had happened to him and Mr Sh . PERSON ; however , she knew that they had been blown up by a mine while searching for PERSON . Neither she nor her husband had applied to police , or to the prosecuting or other authorities in this respect .","PERSON , another sister of Mr Vakhazhi Albekov , was questioned on the same date .","On DATE Mr PERSON cousin , PERSON , was granted the status of victim in the criminal proceedings and questioned . He submitted that in DATE he came from PERSON to visit his parents in GPE . On his arrival he had learned that his cousin PERSON had had been blown up by a mine earlier that day . In TIME that day servicemen from the military unit located next to the village brought PERSON body in an ORG .","On DATE Mr T. , head of the village administration , was questioned . He submitted that in DATE some young men from the area , under the command of a certain PERSON from the ORG district , had obtained weapons and set up watch at the village \u2019s entrance . He did not know what exactly they had been doing . According to rumours , PERSON had been under the command of PERSON . PERSON had also passed through the village with his brigade of CARDINAL men . They had stayed in GPE for a while . Sometimes convoys with military vehicles from the federal troops had passed through the villages . However , the federal troops had never stayed in the village . DATE a lot of cattle had died on account of the explosives , which could have been planted by members of illegal armed gangs headed by PERSON or PERSON . Since DATE a military unit , \u201c the fifteenth regiment \u201d as it was called by the servicemen , was located near the village . In the course of time the servicemen and the villagers established good relations . The military doctor provided medical assistance to the villagers , and the servicemen assisted them with transportation and other matters .","With regard to the explosions of DATE , Mr T. submitted that he had been permanently resident in PERSON at that time . However , he had heard about the events from the villagers . After being appointed head of the LOC administration in DATE , he had met with the commanders of the military unit located within QUANTITY of the village . The commanders had told him that they had information concerning the minefields set up by rebel fighters in that district and had asked him to tell the villages not to walk there . The sites in question had been marked with notices containing warnings about the mines . Furthermore , the commanders had warned him that there could be mines laid by rebel fighters near the village ; however , they had not known their precise location , since the rebel fighters had planted them up chaotically . In DATE servicemen from the unit had been blown up on such mines themselves and had been badly injured .","On DATE PERSON , the village \u2019s imam , was questioned . He submitted that in DATE he had washed the dead bodies of Mr Vakhazhi Albekov and Mr PERSON . He had not participated in the search for Mr Vakhazhi Albekov . However , when his body had been found , his relatives had invited Mr L. for ablution , which he had performed on DATE at TIME He had observed the following injuries on Mr Vakhazhi Albekov \u2019s body : the left side of the chest and the front abdominal walls had been missing , apparently as a result of an explosion , and internal organs had been visible through the opening . The edges of the opening had been burnt and uneven and smelled of explosives . The hands had been seriously injured . A hand ( he could not remember which ) and the left leg had been almost torn apart , and had remained attached to the body only by the skin and remains of the muscles . There had been blood on Mr Vakhazhi Albekov \u2019s head , which had been washed off . He had not seen any bullet wounds . Mr Vakhazhi Albekov had been buried in the village cemetery .","Mr L. did know the exact place where Mr PERSON was blown up . From PERSON he had learned that PERSON had participated in the search for Mr Vakhazhi Albekov and had stepped on a mine . Mr I. had shown the place of the explosion to the servicemen who brought Mr PERSON body to the village . He and PERSON performed the ablution . Mr L. had observed the following injuries on his body : traumatic amputation up to the knee of a leg ( he could not remember which one ) , and minor wounds on other parts of the body . It had been obvious that PERSON PERSON death had been the result of the traumatic amputation of the leg , pain , shock and blood loss . Mr PERSON had been buried in the village cemetery on DATE .","Mr L. had learned about the injuries sustained by Mr Nokha NORP and PERSON from the villagers . He had not talked to them personally and therefore did not know any details of the explosions .","On DATE PERSON , the village imam \u2019s assistant , was questioned . He submitted that since DATE rebel fighters had repeatedly passed through the village . They had used different vehicles and weapons . Federal troops had never permanently stayed in the village or its vicinity . In DATE rebel fighters had passed through their village in motor vehicles . TIME in DATE somebody told him that the whole village had gone to search for PERSON . Then he heard that his body had been found , and he had gone to the spot together with other villagers . Within QUANTITY of the village they reached a dugout , surrounded by villagers . He had never seen this dugout before . It was a log - covered pit in the ground . The entrance to the dugout had no stairs . Having consulted the villagers , he concluded that the dugout had been left by rebel fighters , since it did not resemble the buildings usually left by the federal troops . He had looked into the dugout and had seen a corpse . Mr ORG relatives who were present said that they recognised him by his clothes . PERSON had not entered the dugout . He had said that the body could have been mined and asked for a long rope . Then someone attached the rope to a leg . Everybody had stepped back for QUANTITY so as to avoid the consequences of a possible explosion , and had pulled the body out . PERSON had put a blanket on the ground and had placed the body on the blanket . There had been no skin or muscles on the left side of the body . There had been no other injuries . Then Mr Vakhazhi Albekov \u2019s relatives had taken his body home . During the ablution PERSON had not seen any gunshot wounds on Mr Vakhazhi Albekov \u2019s body .","Mr PERSON further submitted that Mr I. and Mr PERSON had been blown up by a mine while searching for Mr Vakhazhi Albekov to the north - east of the village . Mr PERSON had died and PERSON had only been frightened . PERSON had been invited to Mr PERSON ablution . His body had smelled of burnt meat . He had taken the clothes from the body and had laid them out on the table . In the process of ablution he had observed the following injuries : the left leg had been injured , the left foot had been smashed and had no toes , and its lower part was missing . In the inguinal region there was a hole of QUANTITY in diameter . The buttocks were scratched . There had had been no injuries on other parts of the body . Later Mr PERSON father had objected to having his son \u2019s dead body examined and photographed . On DATE Mr Nokha Uspanov and Mr PERSON . had also been blown up on a mine . Each of them had a leg torn off . They had both survived and walked with crutches . He had not talked to them and did not know any details of the explosion .","On an unspecified date several residents of the village of GPE and other witnesses were questioned . In particular , Mr D. submitted that in DATE an armed group , under the command of PERSON , had conducted military actions in the whole mountain district and had stayed in GPE . Their headquarters had been in the school . The rebel GPE dugout had been placed in the forest between the villages of ORG and GPE . NORP troops had never stayed there permanently ; their convoys had merely passed through the village sometimes . DATE cattle had been regularly blown up on mines around the village , including the sites of the rebel ORG dugouts . All the villagers had been aware that there were mines in the forest . He did not know who had laid them . However , judging from the fact that in DATE rebel fighters rather than NORP troops had stayed in the forest , it was more likely that the former had mined the land so as to prevent attacks from the federal forces . Mr NORP described the circumstances of the explosions in which Mr Vakhazhi Albekov , Mr PERSON and Mr Nokha Uspanov had been killed and injured as he had learned them from other villagers . He considered it unlikely that Mr Vakhazhi Albekov had been intentionally killed and considered it most probable that he had been blown up accidentally on a mine .","Mr S. submitted that military actions between members of illegal armed groups and the federal forces had been conducted in LOC until DATE . At the time CARDINAL members of illegal armed groups had been present in the district . In the forest , QUANTITY to the north of GPE , there were dugouts from the camp of the former field commander PERSON . He and other villagers had known that , when leaving the district , the rebel fighters had mined their camps so as to annihilate any servicemen of the federal troops who might come to inspect the place . Near the military unit there were notices stating that the land had been mined . He did not have any precise information concerning the deaths of the villagers . It is not clear who PERSON was .","Mr PERSON submitted that in DATE there had been numerous instances of explosions in the forest . However , he did not have any information concerning the events in GPE . It is not clear who Mr PERSON was .","Mr GPE . made a statement similar to that of Mr PERSON It is not clear who Mr GPE . was .","Mr PERSON and Mr PERSON made statements similar to that of PERSON , the village imam \u2019s assistant . It is not clear who PERSON and PERSON were .","Mr GPE . and Mr O. did not have any information concerning the events in question . It is not clear who they were .","Mr M. , who was questioned on an unspecified date , submitted that since DATE he had been working as a medical assistant at the medical station in GPE . In DATE rebel fighters , in particular , CARDINAL of PERSON groups , had stayed in the village . The federal troops had not stayed in the village . Their convoys had sometimes passed by but had not stopped . He knew that DATE a lot of cows had been blown up on mines around the village .","Mr M. had seen Mr I. after he had been blown up but he had not noticed any injuries . Mr I. had told him that he and Mr PERSON had been searching for Mr Vakhazhi Albekov and that PERSON had been blown up on a mine . On DATE the villagers and servicemen from the CARDINALth regiment had gone to search for Mr PERSON , and later the servicemen had brought his dead body to the village . Mr Nokha NORP and PERSON had been among the villagers that had participated in the search and they had both been blown up on mines . Other villagers had brought them on stretchers to the house of the S - vs . family on the outskirts of the village . Somebody had called PERSON and the first applicant , who was in the village DATE , for medical assistance . The villagers had told PERSON and the first applicant that they had gone with Mr Nokha NORP and Mr Sh . PERSON to search for Mr PERSON . In the forest Mr Sh . PERSON had noticed a dugout and had approached it in order to look inside . At the entrance of the dugout he had been blown up . Mr Nokha Uspanov had run over to help him and had been blown up too . In the S - vs.\u2019 house PERSON and the first applicant had provided the CARDINAL men with the first medical aid . They had been given styptic and anti - tetanus injections ; the first applicant had cleansed the wounds and removed the injured parts of the muscles and skin . PERSON M.\u2019 right leg had been torn off up to the middle of the ankle . PERSON did not remember him having other injuries . Mr Nokha Uspanov had a similar injury . PERSON had not seen the bodies of either Mr Vakhazhi Albekov or PERSON .","Mr R - v . , who was questioned on an unspecified date , submitted that from DATE he had been seconded to military unit no . DATE . In DATE the military unit had been located on the outskirts of GPE . At the time the situation in the village had been tense ; members of illegal armed groups had opened fire on several occasions . The military unit had not mined the area . In the forest near the military unit \u2019s location there had been a lot of mines , including trip - wire mines . There had been instances where servicemen or military vehicles had been blown up . The mines had most probably been laid by members of illegal armed groups . When explosive devices had been found by servicemen of the military unit , they had been destroyed on the spot by sappers . The administration of GPE had always been informed of the discovery of explosive devices .","Other unspecified servicemen from military unit no . DATE , questioned on unspecified dates , also submitted that the military unit had not laid any mines while located in LOC . When mines or other explosive devices were found , they had been destroyed by sappers . The command of military unit no . DATE had always informed the residents and the administration of GPE of the discovery of mines .","According to the Government , it had not been possible to question either Mr Nokha NORP , because of his subsequent death , or PERSON , because he had moved to GPE permanently , although ORG of GPE had requested the NORP authorities to take certain investigative measures in respect of PERSON Nor had it been possible to question Mr PERSON . , as he and his relatives had left GPE . However , certain steps to establish his whereabouts had been taken .","The investigative authorities had requested the competent bodies to provide information concerning the laying of mines near the village of GPE . According to the military commander \u2019s office , there was no information to support the assumption that the mines had been laid by the federal forces . The involvement of representatives of the federal forces in the incident was therefore not established . Mr Vakhazhi Albekov had been blown up on land occupied by the military unit and which had previously been \u201c abandoned by members of illegal armed formations \u201d . Mr PERSON , Mr Nokha NORP , PERSON and PERSON had been blown up while they had been searching for Mr PERSON in the forest where members of illegal armed gangs had laid mines .","The investigation was being conducted under the supervision of ORG and the persons granted the status of victim were being informed of all the decisions taken .","Despite specific requests made by ORG on several occasions , the Government did not submit copies of the investigation files concerning the deaths of Mr Vakhazhi Albekov and Mr PERSON and the injuries sustained by Mr Nokha Uspanov , except for CARDINAL pages of documents containing decisions to open , suspend and resume the investigation and to grant victim status . The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW .","Article CARDINAL of the LAW safeguards the right to life . GPE is not a party to the DATE Ottawa Convention on the Prohibition of the Use , Stockpiling , Production and Transfer of Anti - Personnel Mines and on their Destruction .","Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW ( the new ORG ) .","DATE . Article CARDINAL of the new ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .","Article CARDINAL of the new ORG stipulates that evidence from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator , but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission ."],"violated_articles":["13","2","38"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115642","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2012,"docname":"PUTTONEN v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON who was granted leave to represent the applicant by the President of ORG CARDINAL \u00a7 CARDINAL of the Rules of Court ) .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant became a civil servant employed by ORG ( ORG , ORG ; henceforth \u201c the GPE \u201d ) where he worked until his retirement on DATE .","On CARDINAL DATE the Trustees of the ORG ( pankkivaltuusto , bankfullm\u00e4ktige ) introduced an equal retirement DATE for all men and women who entered the service of ORG that date or later . The retirement age for women was thereby raised from DATE to DATE while for men the retirement age remained unchanged . As the rule was not retroactive , the different retirement ages for men and women still applied to those persons who had started employment before DATE .","On DATE the Trustees of the ORG ( pankkivaltuusto , bankfullm\u00e4ktige ) amended the pension rules of the ORG so that men who had joined the ORG prior to CARDINAL DATE and who continued their employment until retirement were also granted an opportunity to lower their retirement age from DATE . For DATE the retirement age was lowered , and the pension accrued prior to DATE was reduced by PERCENT . At its highest the early retirement reduction was PERCENT for DATE . Under the pension rules of CARDINAL DATE the retirement age for women who had joined the ORG prior to CARDINAL DATE was DATE and no reductions applied to pension accrual .","Since DATE the pension rules of the ORG had provided that a civil servant who applied for early retirement , who had been employed by the ORG prior to CARDINAL DATE and who had DATE of service behind him , had a right to a pension guarantee ( takuuel\u00e4ke , garantipension ) which was PERCENT of the salary . This pension guarantee was increased by PERCENT for DATE the person \u2019s personal retirement age ( henkil\u00f6kohtainen el\u00e4keik\u00e4 , individuell pensions\u00e5lder ) , which was DATE for men and DATE for women , fell short of DATE ( the personal retirement age before DATE ) . This guarantee was significantly reduced as from DATE .","On DATE the applicant was granted a pension , which was calculated with a PERCENT pension guarantee which included the increase of PERCENT as his personal retirement age was DATE . This method of calculation was chosen as it was more beneficial to the applicant than the method by which the pension was reduced by PERCENT , or MONEY ( ORG ) per month , on the ground that he had retired at DATE . The pension so calculated amounted to ORG CARDINAL per month , starting from DATE .","On an unspecified date the applicant submitted a letter of appeal to the ORG , requesting that his pension be recalculated so that DATE would bring him an additional pension of PERCENT per year , thus altogether PERCENT . He claimed that the amendments made to the pension guarantee on DATE had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was DATE , even if they retired earlier , whereas for women it was always DATE . In the applicant \u2019s situation the percentage for accrued pension was PERCENT while for a woman in the same situation it would be PERCENT higher , namely PERCENT . He also complained about the fact that his pension had been reduced by PERCENT , or ORG DATE , on the ground that he had retired at DATE . As the ORG could not rectify the pension decision , it referred the case on appeal to ORG ) .","On DATE ORG partly accepted , partly rejected the applicant \u2019s appeal . As concerned the percentage for accrued pension , the court accepted the applicant \u2019s appeal and ordered that the percentage be PERCENT instead of PERCENT . It found that in this respect the pension was not calculated in an equitable manner with regard to men and women , and that women were placed in a more favourable position than men . The applicant \u2019s personal retirement age should also have been DATE , as was the case for women in the same position . As this inequality affected also the time after DATE , the date on which the ORG rules on equal pay became applicable in respect of GPE , the applicant \u2019s pension had been calculated in a manner contrary to ORG law during the period from DATE until DATE . In this respect the case was referred back to the ORG for a new decision . As to the rest of the applicant \u2019s complaints , they were rejected . As concerned the reduction of PERCENT due to early retirement , the court found that as the reduction concerned the time before DATE , it was not contrary to ORG law .","On DATE the ORG issued a new pension decision to the applicant . The percentage for accrued pension was now PERCENT , increasing his personal pension guarantee percentage to PERCENT . The pension calculated in this manner amounted thus to ORG CARDINAL per month .","NORP By letter dated CARDINAL September CARDINAL the applicant submitted an appeal to the ORG , requesting that the pension decision of DATE be recalculated as his pension guarantee still remained at PERCENT when it should have been CARDINAL x PERCENT = PERCENT on the ground that he had over DATE of service . He noted that ORG had already on DATE amended a similar pension decision in the case of PERSON and granted him a pension right amounting to PERCENT on the ground that he had fulfilled the pension guarantee requirement as he had completed DATE of service . Moreover , the applicant complained about the amendment to ORG on DATE which introduced the reduction system in cases of early retirement . He claimed that it was discriminatory and unconstitutional and that therefore it should be declared null and void or at least left unapplied . Such practice was not in use in the ORG pension system and under LAW ( valtion el\u00e4kelaki , lagen om statens pensioner ) , which LAW were intended to follow . The applicant also pointed out that ORG had also found in this respect that the NORP system was contrary to ORG law . Finally , the applicant complained about lack of transparency in the ORG \u2019s decision .","As the ORG could not rectify the pension decision , it referred the case on appeal to ORG on DATE . These proceedings are still pending before ORG .","DATE ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL\/CARDINAL ) provides that :","\u201c No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . \u201d","DATE LAW provides that the property of everyone is protected .","Section CARDINAL of the Act on Equality between Women and Men ( laki naisten ja miesten v\u00e4lisest\u00e4 tasa - arvosta , lagen om j\u00e4mst\u00e4lldhet mellan kvinnor och m\u00e4n ; Act no . DATE ) prohibits both direct and indirect discrimination based on gender . According to its section CARDINAL , subsection CARDINAL , direct discrimination means , inter alia , putting women or men in an unequal position on the basis of gender . LAW , subsection CARDINAL , point CARDINAL , of the same LAW provides that :","\u201c An employer \u2019s conduct constitutes discrimination prohibited under LAW if the employer applies the pay or other terms of employment in such a way that CARDINAL or more employees , because of their gender , find themselves in a less favourable position than CARDINAL or more other employees performing the same work or work of equal value in the employer \u2019s service . \u201d","Section CARDINAL of the LAW on ORG ( laki PERSON , lagen om ORG ; Act no . CARDINAL ) provides , inter alia , that :","\u201c The Trustees of the ORG shall confirm ORG and issue regulations concerning the management of the ORG \u2019s pension liability , upon proposal of the ORG . \u201d","Section CARDINAL of the Act on Officials of ORG ( laki PERSON virkamiehist\u00e4 , lagen om ORG tj\u00e4nstem\u00e4n ; Act no . DATE ) provides the following :","\u201c ORG shall treat all officials in its service equally to ensure that no - one is unjustifiably treated differently because of his origin , citizenship , gender , religion , age , political or union activities , or on other comparable bases .","ORG shall not forbid an official to join or belong to an association or pressure him to join a particular association , nor forbid him to resign from such . \u201d","Section CARDINAL , subsections CARDINAL , of the same LAW provide the following :","\u201c An official who considers that ORG has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to ORG . No request for rectification can be made in a matter that falls within the jurisdiction of ORG , unless ORG has decided not to settle the matter under section CARDINAL , subsection CARDINAL , of the LAW on ORG ( CARDINAL\/CARDINAL ) .","Rectification of a decision by which ORG has issued an official with a warning , laid him off or given him notice , cancelled the service relationship , suspended him from office or decided on a matter concerning his pension contribution or secondary occupation , as well as a decision referred to in paragraph CARDINAL on a request for rectification referred to in paragraph CARDINAL can be requested by appealing to ORG in accordance with the provisions of ORG ( ORG ) . A matter referred to in this paragraph shall be treated as urgent by ORG .","Decisions of the ORG concerning pensions can be appealed against to ORG . Otherwise , as regards a request for rectification on pension , the applicable provisions of the Act on State Pensions ( CARDINAL\/CARDINAL ) shall apply . \u201d","Section CARDINAL , subsection CARDINAL , of the same LAW provides that","\u201c [ t]he right of an employee of ORG to a pension paid from the ORG \u2019s funds is determined , to the extent applicable , on the same grounds as state pension cover . State pension cover refers to the right to pensions , survivors\u2019 pensions and other benefits which are payable from the state \u2019s funds and the content of and eligibility for which are regulated by LAW and the related legislation . Pensions and survivors\u2019 pensions are granted by ORG . \u201d","More detailed provisions on the payment of pensions and survivors\u2019 pensions and pension cover in other respects are contained in ORG ( Suomen Pankin el\u00e4ke- ja perhe - el\u00e4kes\u00e4\u00e4nn\u00f6t ; pensionsstadgan och familjepensionsstadgan f\u00f6r ORG ) . The Trustees of ORG , elected by the ORG , adopt the ORG on the basis of ORG proposals .","Section CARDINAL , subsection CARDINAL , of LAW with its earlier wording , as amended on DATE , read as follows :","\u201c Eligibility for old age pension requires that the beneficiary has completed his or her service and reached DATE , or DATE if the beneficiary , immediately before retirement , has been serving ORG or its ORG for DATE , and DATE in the case of a female employee . A beneficiary who retires as a member of the ORG is entitled to old age pension irrespective of age . \u201d","The lower retirement DATE for women was applied until DATE , when the amendment of section CARDINAL , subsection CARDINAL , of ORG entered into force . With this amendment the retirement age for women was raised from DATE but the retirement age for men remained unchanged at DATE . The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the ORG began on DATE or thereafter .","For the equalisation of the retirement ages , men were granted the right to opt for a lower retirement age . On DATE the Trustees of the ORG amended the entry into force provision of LAW in the following manner :","\u201c However , as of DATE , the earlier provision is applicable both to women who entered service in the ORG prior to CARDINAL DATE and to men who entered service in the ORG before that date .","The beneficiary has the right to choose between the lower retirement age , based on the earlier provision , or the higher retirement age . If a man chooses the lower retirement age , the amount of his pension accrued on the basis of the duration of his service is , in respect of the service prior to DATE , reduced by CARDINAL percentage units per month of earlier retirement . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88767","languageisocode":"ENG","respondent":"DNK","branch":"ADMISSIBILITY","date":2008,"docname":"GAVRIC v. DENMARK","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicant , ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr Tyge Trier , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was employed as an abattoir worker .","On DATE he sustained an injury while transporting slaughtered pigs to a cooling room on devices called \u201c DATE trees \u201d . The transportation took place by pushing the devices along a rail system in the ceiling . While pushing , suddenly the applicant suffered intense back pains . He went to see a doctor on DATE and went on sick leave from DATE .","On DATE his employer notified ORG ( Arbejdstilsynet ) .","On DATE the applicant \u2019s insurance company filed a claim about the incident with ORG ) and on DATE , the applicant submitted a form , in which he provided a summary of the accident . He specified that while pushing the devices along the rail system , he had reached for a switch and accordingly had to give an extra push , whereby he strained his back and fell to his knees due to sharp pains . He replied in the negative to a question on the form as to whether he slipped , fell or stumbled .","On DATE the applicant \u2019s request for compensation was refused by ORG on the grounds that the injury could not be recognised as an industrial injury under section CARDINAL , subsection CARDINAL(i ) and ( ii ) of ORG against LAW Arbejdsskadeforsikringsloven ) then applicable .","In DATE and DATE the applicant appealed against the decision to ORG ( PERSON ) .","In addition , on DATE he requested that ORG reopen the case . Later , during the proceedings he submitted a statement of CARDINAL DATE by a medical expert , to whom the applicant had explained that , on DATE of the accident , he slipped on the greasy floor , lost his balance , and fell on his knees . In that connection he suddenly felt the sharp pain in his back . The applicant \u2019s request was refused on DATE .","On DATE the applicant appealed against that decision to ORG , which on DATE upheld the parts of the decisions of ORG of CARDINAL DATE and CARDINAL DATE concerning LAW against LAW then applicable . At the same time , ORG remitted the part of the case that related to section CARDINAL , subsection CARDINAL(ii ) of GPE against LAW then applicable to ORG , requesting the ORG to obtain further information with a view to determining whether the incident could be recognised as having caused a short - term injury .","On DATE ORG decided that the incident of CARDINAL DATE could not be recognised as having caused a short - term injury under LAW , subsection CARDINAL(ii ) of the said LAW .","On DATE the applicant appealed against this decision to ORG , which upheld it on DATE .","On DATE the applicant brought the case before ORG of Eastern GPE ( PERSON ) .","The pre - trial proceedings lasted from DATE until DATE . During this period the applicant requested CARDINAL times , and was granted , an extension of a time limit set by ORG . The case was brought before ORG ( Retsl\u00e6ger\u00e5det ) , which delivered an opinion and a supplementary opinion . On DATE ORG closed the pretrial proceedings and offered to schedule the trial in DATE or DATE . This was refused by the applicant , and the trial was then initially scheduled for DATE . Due to rescheduling , however , the trial was ultimately conducted on DATE . The applicant and CARDINAL witnesses were heard and substantial documentary material was submitted .","A judgment was passed in favour of ORG on DATE . The applicant was ordered to pay costs to the opponent party amounting to a total of MONEY ( DKK ) ( MONEY ( ORG ) ) .","On DATE the applicant appealed against the judgment to ORG ( H\u00f8jesteret ) . He stated that he wanted further witness testimony and reserved the right to put supplementary questions to ORG .","Before ORG the pre - trial proceedings lasted from DATE until DATE . The trial was held on the latter date . During this period , the applicant requested CARDINAL times , and was granted , an extension of a time limit set by ORG and CARDINAL times the applicant and ORG jointly were granted an extension of a time limit . The case was brought before ORG ( PERSON ) and once again before ORG .","The trial took place as scheduled on DATE and by judgment of DATE ORG upheld ORG judgment . The applicant was ordered to pay costs to the opponent party amounting to DKK MONEY ( approximately EUR CARDINAL ) .","With regard to civil proceedings ORG reads in as far as relevant :","( CARDINAL ) The losing party shall compensate the opponent for the expenses inflicted on the opponent by the proceedings , unless otherwise agreed by the parties .","( CARDINAL ) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses inflicted if particular reasons make it appropriate .","( CARDINAL ) ...","Thus , although NORP law does not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings , accordingly to domestic case - law , in civil proceedings initiated by an individual against or involving ORG , if the courts , having examined a length of proceedings complaint , finds a violation , they may grant redress therefore by , for example , exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the ORG ( see , inter alia , PERSON v. GPE ( dec . ) , no . CARDINAL\/CARDINAL , DATE ) .","To illustrate that section CARDINAL , subsection CARDINAL of ORG is an effective remedy for providing adequate redress for a violation of LAW in civil lawsuits of this nature , the Government referred to the decision of ORG of DATE published in ORG ( ORG ) DATE , page CARDINAL ( U CARDINAL.CARDINAL H ) . In that case ORG upheld a ORG judgment in a case filed by a child and its parents against ORG . Even though the plaintiffs lost the case , ORG , taking into account the extraordinary length of the legal proceedings , invoked section CARDINAL , subsection CARDINAL and exempted the plaintiffs from compensating ORG for its legal costs . When doing so ORG explicitly referred to LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-86115","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2008,"docname":"CASE OF PETREA v. ROMANIA","importance":4,"conclusion":"Violation of Article 3 - Prohibition of torture (Substantive aspect)","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall","text":["The applicant was born in DATE and lives in GPE .","On DATE the prosecutor attached to ORG issued an arrest warrant against the applicant , who was accused of tax evasion .","The applicant was apprehended on DATE and was placed in police custody for a period of DATE . ORG , to which the applicant was first brought on DATE , repeatedly extended his pre - trial detention , until the end of the proceedings before it .","ORG gave judgment on DATE . On the basis of the depositions made by the applicant , CARDINAL co - defendants and twenty - one witnesses , the court convicted the applicant under several heads of tax evasion and forgery , and sentenced him to DATE and six months\u2019 imprisonment with an obligation , under LAW , to undergo medical treatment for his mental disorder as identified by the medical reports adduced in the case . The court ordered that the medical treatment be administered through the prison hospitals , while the applicant was in detention , and continue after his release until his complete recovery . It also upheld the order for the applicant \u2019s detention .","In a decision of DATE , ORG allowed appeals against the judgment and , based on the evidence in the case and the GPE depositions , reduced the applicant \u2019s sentence to DATE and CARDINAL months\u2019 imprisonment . It upheld the remainder of ORG judgment .","NORP This decision was confirmed , upon an appeal on points of law by the defendants , in a final decision of DATE of ORG .","On DATE the applicant \u2019s lawyer filed a request with the prosecutor for the applicant \u2019s psychiatric evaluation . ORG examined the applicant and concluded , on CARDINAL DATE , that he had been mentally competent for legal purposes both when the alleged offences had been committed and at the date of the evaluation .","The applicant contested the conclusion of the report .","On DATE the \u201c PERSON \u201d ORG in GPE confirmed ORG report , after having examined the applicant . It also recommended that , pursuant to LAW , the applicant be required to undergo medical treatment for his mental disorder both during the detention and after his release .","On DATE the applicant underwent a full medical examination at ORG . The medical commission concluded that the applicant \u2019s mental disorder did not render him unfit for detention .","According to the detailed medical record from the period of pre - trial detention , submitted by the ORG , the applicant was hospitalised CARDINAL times in prison hospitals . He was mainly diagnosed with thrombophlebitis , venous insufficiency and a mental disorder . Each time he was discharged , the doctors recommended treatment for his various illnesses , periodical re - evaluations and medical check - ups when needed .","During this interval he was seen CARDINAL times by the prison doctors , on CARDINAL and DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE and DATE , and CARDINAL , DATE and DATE .","Records indicate that medicine was systematically administered for his venous insufficiency and until DATE for his mental disorder . The latter treatment was interrupted until DATE and after this date was given sporadically .","During his detention , several disciplinary measures were taken against the applicant . Accordingly , his visit and parcel rights were withdrawn on DATE , DATE , DATE and CARDINAL DATE , for possession of forbidden objects . From CARDINAL to DATE he was kept in solitary confinement .","Lastly , on DATE the penitentiary authorities placed the applicant in restrictive confinement ( \u201c regim restrictiv \u201d ) , for DATE due to his recalcitrant behaviour and repetitive infringements of the prison regulations . However , on DATE he was reintegrated into the normal detention regime , for good behaviour .","The applicant claimed that while subject to the restrictive detention regime he had been kept in a cold cell wearing worn clothes that had been inadequate for the temperature , sometimes handcuffed with his hands above his head , and that for DATE he had not been seen by a doctor and that correspondence to and from his family had been tampered with .","NORP In DATE , after the adoption of the final decision in the case , the applicant was transferred to Ia\u015fi high - security Prison and placed in the section designated for extremely dangerous prisoners .","The applicant claimed that , despite his repeated requests to be seen by a specialist doctor and administered adequate medical treatment , during DATE of detention he had only been examined by the prison doctor , who had consistently informed him that there had been no funds for continuing his treatment . The prison doctor had told him : \u201c there is no problem if you die , we have a priest and there is wood in the store house \u201d ( \u201c nu e nici o problem\u0103 dac\u0103 mori , avem preot \u015fi sc\u00e2nduri la magazie \u201d ) .","On an unspecified date , upon repeated requests by his family to the prison authorities , the applicant was transferred to a different dormitory .","According to the Government , the applicant was placed in shared dormitories , the first measuring QUANTITY m and the latter CARDINAL sq . m , which he shared respectively with CARDINAL and CARDINAL other prisoners . The dormitories had windows . Hygiene facilities were permanently accessible to prisoners in a separate room . Warm water was available once a week . The applicant had daily TIME walks , frequently received visits from members of his family and participated in the social programme of the penitentiary . His medical treatment continued .","On DATE , the Ia\u015fi prison authorities informed the applicant \u2019s counsel that the applicant was not receiving any medical treatment at that moment , but that such treatment would be administered if necessary .","From DATE to DATE , the execution of the sentence was suspended for medical reasons . On DATE the applicant was released on probation .","Article CARDINAL of LAW ( \u201c CC \u201d ) and the relevant provisions of Law no . CARDINAL on the execution of sentences are described at DATE and CARDINAL of the PERSON judgment ( see ORG v. GPE , no . MONEY , CARDINAL DATE ) .","Law CARDINAL was replaced by Emergency Ordinance no . CARDINAL ( \u201c LAW \u201d ) on the rights of prisoners , adopted by the Government on DATE and ratified by ORG on DATE . This Ordinance constituted a general measure taken by the ORG in the execution of the judgment adopted by ORG in the case ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINALVII ; see ORG ) . The relevant parts of the Ordinance read as follows :","\u201c ( CARDINAL ) Prisoners may complain against the measures taken by prison authorities ( ... ) .","( CARDINAL ) In examining a complaint , the court takes CARDINAL of the following decisions :","( a ) allows the action and orders the annulment , revocation or change of the measure taken by the penitentiary authority ;","( b ) dismisses the action if it is ill - founded . \u201d","That GPE was replaced by LAW no . CARDINAL\/CARDINAL on the execution of sentences , which in its LAW provides for a similar appeal lodged with the judge responsible for the execution of sentences , who has the powers described in LAW and whose decision can be appealed against before a court .","The legislation on the organisation of the military ORG offices and military tribunals is summarised in paragraph CARDINAL of the Barbu Anghelescu judgment ( see PERSON v. GPE , no . MONEY , CARDINAL October CARDINAL ) and in paragraph CARDINAL of the PERSON judgment ( see PERSON v. GPE , no . ORG , DATE ) .","Until DATE when PERSON no . CARDINAL entered into force , the penitentiary commanders were active military officers ( see Articles CARDINAL and CARDINAL of Law no . ORG and LAW no . MONEY ) .","The findings of ORG for the Prevention of Torture ( \u201c the ORG \u201d ) following visits to NORP prisons , as well as the ORG \u2019s general findings , are summarised at paragraphs CARDINAL of the ORG judgment ( see GPE v. GPE , no . CARDINAL , DATE ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112481","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2012,"docname":"CASE OF VASILIY IVASHCHENKO v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE . He is currently serving a prison sentence in PERSON , LOC .","On DATE a police officer was killed and another police officer was severely wounded by a group of people using fire arms . On DATE the police stopped a car , whose driver stated that he had dropped off CARDINAL people , who had allegedly committed the above crime , in a field QUANTITY away . Thereupon QUANTITY police officers went to search for the suspects . They saw CARDINAL people , including the applicant , crossing the field . The police officers fired several shots into the air and ordered the people to lie down on the ground .","According to the applicant , they all obeyed the orders of the police . The officers then approached them and started beating the applicant and the CARDINAL others . The applicant was hit and kicked in the head , chest , kidney and groin area , as a result of which he lost consciousness . The applicant stated that the officers had pierced his cheek with a needle and had used a cigarette lighter to burn his right hand and suggested that they had done so in order to make him regain consciousness .","According to the written statements of the police officers submitted by the ORG , while the applicant and the other suspects threw aside their guns they refused to obey the orders of the police and \u201c offered physical resistance to the arrest \u201d . Because of this , the police officers employed \u201c unarmed combat techniques \u201d , forced the suspects to the ground and handcuffed them .","TIME the applicant was taken to the medical wing of the investigative detention unit ( \u0441\u043b\u0456\u0434\u0447\u0438\u0439 \u0456\u0437\u043e\u043b\u044f\u0442\u043e\u0440 \u2013 \u201c the GPE \u201d ) in GPE where he regained consciousness .","He was examined by a doctor who noted a number of lesions and bruises on the applicant \u2019s head and body , including a wound and a haematoma on his forehead , and haematomas on his left shoulder , chest and right thigh . The medical report , written by that doctor , also stated that the applicant had several blisters on his fingers which , according to the applicant , were the result of burns . The doctor stitched the wound on the applicant \u2019s forehead , prescribed a pain killer and suggested that the applicant see a neurologist . According to the report , an X - ray examination of the applicant \u2019s chest did not reveal fractures of his ribs .","According to the applicant , the doctor did not note down all of his injuries . For instance , fractures of the applicant \u2019s ribs and CARDINAL fingers on his right hand were not revealed as no X - ray examination was carried out .","DATE a medical expert examined the applicant and noted that his injuries were minor .","In the course of the criminal investigations against him , the applicant complained of ill - treatment by the police to various public authorities , including the prosecutors .","By decisions of CARDINAL DATE and DATE , the prosecutors refused to bring criminal proceedings against the police officers , finding that they had acted lawfully during the arrest . The finding was based on the statements of the police officers and the applicant \u2019s medical documents ( see paragraphs CARDINAL , DATE and DATE above ) . The applicant did not challenge the ORG decisions before the courts .","He again raised complaints of ill - treatment in the course of his trial before ORG ( \u201c the ORG \u201d ) and ORG , which rejected them as unsubstantiated ( see paragraphs CARDINAL and CARDINAL below ) .","On DATE the investigator came to see the applicant in the GPE . The investigator wished to question the applicant . He informed the applicant that he was suspected of aggravated robbery and murder committed on DATE and explained to the applicant his basic procedural rights and guarantees , including the right to legal assistance and to remain silent . The relevant records were signed by the applicant , the investigator and a lawyer , PERSON , who , according to the Government , was also present during the applicant \u2019s questioning . The lawyer was appointed by the investigator to represent the applicant in the proceedings .","The records also contain a statement by the applicant expressing the wish to be represented by another lawyer , PERSON , but that if that lawyer refused to take part in the case he would agree to be represented by PERSON In the records the applicant also noted that the statement was made in the presence of PERSON Accordingly , the applicant refused to be questioned on DATE . During his subsequent questioning , including at the trial stage , the applicant denied his responsibility for the crimes of which he was suspected .","In his application to the ORG , the applicant stated that PERSON had taken part in the proceedings at the request of the applicant \u2019s wife , who had paid the lawyer \u2019s fees . The applicant also contended that the lawyer had not been present at the GPE on DATE and that he had signed the records at DATE . The applicant submitted letters issued by the PERSON administration on DATE , according to which during the pre - trial investigations lawyers had not visited the applicant in the GPE and the applicant had left the GPE DATE to undergo a psychiatric examination on DATE .","On DATE the prosecutors invited Mr T. to defend the applicant . As that lawyer refused to take part in the proceedings , PERSON continued to represent the applicant throughout the proceedings .","According to the records submitted by the Government , PERSON took part in the investigative actions , including the applicant \u2019s questioning which took place in the GPE on DATE and DATE , studied the materials of the case , attended the court hearings , made written and oral pleadings , and prepared an appeal in cassation contesting the applicant \u2019s conviction . The court hearings which the lawyer did not attend were adjourned .","NORP The applicant argued that during the entire period of the investigations he had not communicated with PERSON and had not been allowed to correspond with anyone outside the GPE . The investigators allegedly told him that it was not possible to see the lawyer before the trial . The applicant met the lawyer for the first time when the trial commenced .","On DATE the applicant was charged with several counts of aggravated robbery , murder and inflicting bodily injuries .","In DATE the investigations were completed . The applicant and PERSON were invited to familiarise themselves with the case file . The applicant expressed the wish to study it without the lawyer , allegedly at the request of the investigator , who promised the applicant that he would be allowed to meet with his brother .","NORP In DATE the applicant finished studying the case file and in DATE ORG started examining the case as a court of first instance .","In the course of the court proceedings the applicant submitted several requests for the withdrawal of PERSON , stating that he did not need a lawyer at all . While the trial court made several requests to the local bar association inviting it to suggest another lawyer for the applicant , no replacement was found . The court also invited the applicant to hire a new lawyer himself , which the applicant did not do . By a letter dated DATE , the President of ORG informed the Deputy Minister of ORG that the applicant \u2019s and his co - defendants\u2019 refusal to be legally represented had resulted in a delay of DATE to the court proceedings , which could not be pursued without the participation of a lawyer given the gravity of the charges . It was also noted that the defendants had submitted numerous procedural requests , including requests for their representation by the Minister of ORG and relinquishment of jurisdiction in favour of ORG , which evidenced that they were in fact trying to protract the proceedings .","Before the trial court the applicant contested the charges against him and alleged that the testimony of his co - defendants confirming his and their involvement in the impugned criminal acts had been obtained under physical and psychological pressure from the police . The applicant also lodged a request with the court for a video or audio - recording to be made of the proceedings , but this was rejected by the court .","The applicant \u2019s co - defendants raised similar complaints before the court and denied their submissions made in the course of the pre - trial investigations .","On DATE ORG found the applicant guilty of several counts of aggravated robbery , inflicting grievous bodily injuries and murder . It sentenced the applicant to life imprisonment . The court based its judgment on the testimony of TIME witnesses and victims of the crimes , partly on the statements of the applicant \u2019s co - defendants in the course of the investigations , and also on the conclusions of several forensic , ballistic and other expert examinations . The court further took into account the fact that in the course of the searches at the GPE places of residence the police had found a large number of objects belonging to the victims of the crimes .","The court also dealt with the GPE allegations that they had been tortured by the police in the course of the pre - trial investigations in order to obtain their confessions . It questioned the investigators and the police officers concerned and concluded that those allegations were unsubstantiated . The court also noted that the defendants , excluding the applicant , had made their statements to the investigators in the presence of their lawyers . The applicant \u2019s co - defendants had not complained of illtreatment to the law - enforcement authorities . The court therefore found no ground which could prevent it from relying on these statements in its judgment .","As to the applicant , the court observed that he had not admitted his guilt at any stage of the proceedings , and there was no evidence that he had been forced to do so . Having questioned the police officers who had arrested the applicant on DATE and CARDINAL of the officers from GPE , the court noted that the applicant had been injured during the arrest but that there was no evidence that he had been ill - treated during his subsequent detention .","On DATE and DATE respectively the applicant and PERSON lodged separate cassation appeals , contesting the factual findings of the first - instance court . The applicant also complained that the trial court had failed to give due consideration to the GPE arguments that \u201c they had been denied the opportunity to have and meet with a lawyer before their first questioning \u201d and that the trial court had not allowed the GPE lawyers to visit them in detention . The applicant further made reference to his ill - treatment on DATE and alleged that the statements of his codefendants had been obtained under physical and psychological pressure from the police .","Meanwhile , on DATE the applicant and CARDINAL of his codefendants concluded an agreement with PERSON . , pursuant to which Mr Br . undertook to defend them in the proceedings .","On DATE the applicant asked ORG to allow Mr Br . to participate in the proceedings as his defence counsel .","On DATE ORG informed the applicant that it had no jurisdiction to decide on the matter .","On DATE Mr Br . complained to the President of ORG about ORG refusal to allow him to act as the applicant \u2019s and his co - defendant \u2019s counsel . PERSON . also requested access to the criminal case file so that he could prepare a cassation appeal on behalf of the applicant and his co - defendant and to be granted leave to visit them in the GPE . No reply was given by ORG to PERSON . \u2019s requests .","On DATE the applicant sent an amended cassation appeal to ORG in which he complained about ORG refusal to allow PERSON . to act as his defence counsel .","By a letter of DATE , GPE submitted that the applicant had been there .","The court also noted that PERSON . did not have an advocate \u2019s licence and that he had not proved that , under domestic law , he could participate as defence counsel in criminal proceedings . The court further reiterated that Mr Br . should have asked ORG to grant him leave to participate in the cassation proceedings , since the first - instance court , which had already delivered a judgment in the case , was not competent to decide on that matter .","On DATE ORG held a hearing on the cassation appeals . According to the applicant , PERSON . was allowed to take part in the hearing on the applicant \u2019s behalf . The applicant , his co - defendants and their lawyers were also present . ORG rejected the cassation appeals submitted by the applicant and PERSON Supreme Court further upheld the conclusions of ORG concerning the GPE allegations of their ill - treatment at the pre - trial stage of the investigation .","According to the applicant , PERSON . was not given an opportunity to study the case file or to meet with the applicant prior to ORG hearing .","On DATE the applicant lodged his present application with the ORG .","On DATE the applicant asked ORG to provide him with copies of the medical reports drawn up after his examination in the GPE and of the procedural decision concerning his request for a video or audio - recording of the proceedings before that court , which he intended to submit to the ORG in substantiation of his application .","By a letter of CARDINAL May CARDINAL , the Deputy President of ORG informed the applicant that his request had been refused , as it was not the function of that court to copy documents for the applicant . The court also noted that there were no funds in the court \u2019s budget allocated for such purposes .","On DATE the applicant lodged a complaint with ORG ( the \u201c ORG \u201d ) against the Deputy President of ORG for failure to provide him with copies of the documents from his case file . In his complaint , the applicant stated that he needed copies of these documents in order to submit them to the ORG . He also sought compensation for the damage allegedly caused by the refusal to provide him with the documents .","On DATE ORG declined jurisdiction to consider the applicant \u2019s complaint . The court held that under NORP law judges acting in their official capacity enjoyed immunity from court proceedings against them .","On DATE the applicant appealed against the decision of DATE .","On DATE the same court granted the applicant time to rectify certain shortcomings in his appeal . The court held that the applicant \u2019s appeal should have been typewritten and should have contained information concerning the parties to the proceedings , in particular , their names and addresses .","On DATE the applicant submitted a new version of his appeal . The applicant also attached a note , issued by the administration of the GPE , stating that , in accordance with the law , detainees were not provided with the opportunity to type their documents .","DATE . On DATE ORG refused to accept the applicant \u2019s appeal for failure to comply with the decision of DATE . According to the applicant , he appealed against the decision of CARDINAL DATE . There is no information concerning the outcome of his appeal .","By a letter of DATE , the ORG asked the applicant to submit copies of his appeal in cassation against the judgment of DATE and of his requests for legal assistance .","On DATE the applicant asked the President of ORG to provide him with a copy of his appeal in cassation as well as with copies of the documents which he had already requested in his letter of CARDINAL DATE . The applicant referred to the ORG \u2019s letter , but did not enclose a copy .","On DATE the acting president of ORG rejected the applicant \u2019s request on the same grounds as in the letter of CARDINAL DATE . The acting president of the court also stated that , if necessary , the ORG could ask the ORG authorities to provide it with copies of these documents .","The applicant \u2019s further requests for copies of the documents from his case file were also rejected by ORG .","In DATE the ORG submitted , at the ORG \u2019s request , copies of various documents from the applicant \u2019s criminal case , including his appeal in cassation and documents concerning legal assistance in the course of the domestic proceedings .","In DATE and DATE the ORG received several letters sent from the applicant \u2019s brother \u2019s address . In these letters the applicant alleged that the Government had blocked his correspondence with the ORG . In particular , the applicant stated that on CARDINAL , DATE , DATE and DATE , and on CARDINAL and DATE he had submitted his observations on the admissibility and merits of the application , claims for just satisfaction , a friendly settlement proposal , and some additional information to the staff of the ORG , to which the applicant had been transferred from the GPE in DATE , for them to send to the ORG . The applicant provided a copy of the document dated DATE in which the authorities confirmed that they had dispatched the applicant \u2019s correspondence addressed to the ORG on the above dates . However , the ORG never received the applicant \u2019s submissions .","According to the ORG , the impugned letters were sent promptly to the ORG . The staff of the ORG was not responsible for the fact that they did not reach the ORG .","In DATE the applicant complained to ORG and ORG alleging interference with his correspondence . The complaints were dealt with by the prosecutors and the postal service . The prosecutors replied to the applicant that his letters had been duly dispatched by the staff of ORG . The prosecutors also noted that it was not possible to check whether the postal service had received and dispatched the applicant \u2019s letters , which were unregistered mail . That was confirmed by the postal service .","By a letter dated DATE , the Vice - President of ORG rejected another request from the applicant for copies of documents from his case file . In the letter it was also noted that the applicant had the right to hire a lawyer , pursuant to paragraph CARDINAL of LAW on LAW , or to appoint a representative among CARDINAL of his close relatives . The applicant was informed that such a representative would be given an opportunity to study the case file and to make notes .","The relevant provisions of domestic legislation and the relevant provisions of the Recommendation Rec(CARDINAL)CARDINAL of the Committee of Ministers to member GPE on ORG were summarised and quoted in the judgment in the case of NORP v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE and CARDINAL - CARDINAL , DATE ) , which mainly concerned the failure of the authorities to provide the applicant with the opportunity to obtain copies of documents needed for his application before the ORG .","In the context of the execution of the ORG \u2019s judgment in ORG , in DATE ORG submitted to ORG an action plan on measures to comply with that judgment . An extract from the action plan concerning general measures reads as follows :","\u201c CARDINAL . Publication and dissemination of the judgment","The summary of the judgment was published in the ORG \u2019s ORG [ PERSON ] , no . CARDINAL of CARDINAL [ DATE .","By letters of CARDINAL DATE , explanatory notes on the conclusions of ORG in the above - mentioned judgment were sent to ORG , ORG of GPE for civil and criminal cases , ORG , ORG and ORG .","Moreover , the ORG \u2019s conclusions in the above judgment were included in the submission to ORG of GPE concerning the execution of ORG judgments ( as of DATE ) . ORG of GPE instructed the relevant authorities to take measures to remedy the violation found , to avoid similar violations and bring their practices in accordance with the requirements of the Convention .","Legislative measures","In order to determine whether any legislative amendments are required the authorities are currently holding multilateral discussions . As soon as this issue is determined at the national [ level ] ORG will be informed thereof . \u201d","At its CARDINALth meeting on CARDINAL - CARDINAL DATE ORG took note of the action plan and invited GPE to keep it informed of the progress made in its implementation . So far , ORG has not yet concluded the supervision of the execution of the judgment under LAW ."],"violated_articles":["3","34"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["34"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58218","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1998,"docname":"CASE OF SOUMARE v. FRANCE","importance":3,"conclusion":"Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 5-4;Damage - finding of violation sufficient;Costs and expenses - claim dismissed","judges":"R. Pekkanen","text":["Mr PERSON , a NORP national , had no fixed abode in GPE when he was convicted . He now lives in GPE .","He was arrested in GPE and remanded in custody on DATE in connection with a heroin - trafficking operation involving CARDINAL other people . He was charged with illegally importing controlled substances ( QUANTITY of heroin ) and of conspiring with a co - accused to import drugs and of being his accomplice .","On DATE ORG sentenced Mr PERSON to DATE imprisonment and made an order permanently excluding him from NORP territory . It also ordered confiscation of the drugs that had been seized and imposed a fine of MONEY ( ORG ) jointly on the applicant and the other convicted defendants in lieu of confiscation and ordered them , pursuant to LAW ( \u201c CC \u201d ) , to pay a like amount , equal to the value of the unlawfully imported substances , to the customs authorities . The applicant \u2019s joint liability was limited to ORG CARDINAL,CARDINAL,CARDINAL . Lastly , the court ordered Mr PERSON \u2019s continued detention pursuant to LAW ( see paragraph CARDINAL below ) , for a period not exceeding the maximum period for imprisonment in default DATE which , under LAW ( \u201c ORG \u201d \u2013 see paragraph CARDINAL below ) was DATE , until the ORG penalties had been paid .","On DATE , on an appeal by Mr PERSON and a cross - appeal by the prosecution , ORG upheld both the applicant 's conviction and sentence and the orders made in favour of the customs authorities . The applicant 's appeal to ORG was dismissed on DATE .","On DATE the applicant applied to ORG to be transferred to GPE under PERSON on ORG . On DATE the ORG rejected the application on the ground that the customs fine had not been paid . It added that the application could be reconsidered if all or part of the sum was paid , and that to that end the applicant could , if he so wished , contact the customs authorities with a view to a settlement .","On several occasions Mr PERSON , who was held in LOC detention centre , sought a \u201c settlement with the customs authorities \u201d . On DATE he applied for the order for imprisonment in default to be discharged offering to pay ORG CARDINAL . Further applications , in which he offered to pay ORG CARDINAL,CARDINAL and then ORG CARDINAL,CARDINAL , were unsuccessful as the Director of ORG had fixed the sum required for discharge of the order at FRF CARDINAL,CARDINAL .","NORP In a letter of CARDINAL DATE , Mr PERSON renewed his offer of ORG CARDINAL while at the same time asking the customs authorities to advise him urgently what they would consider a \u201c reasonable offer \u201d as his prison sentence for the criminal offences was due to end on DATE .","On DATE the customs authorities replied that his offers were too low compared with the penalties imposed , that his tax return showing a nil liability to income tax could not be taken into account as profits derived from drug trafficking were necessarily undeclared and , lastly , that the order for his imprisonment in default would not be discharged until the sum of FRF CARDINAL , which had previously been indicated , had been paid . That decision would be reviewed once he had served CARDINAL months\u2019 imprisonment in default . Having regard to the position taken by the customs authorities , ORG also rejected further requests by the applicant to be transferred to GPE .","In the meantime the applicant had , on DATE , lodged an application with the President of the PERSON tribunal de grande instance to have the order for his imprisonment in default discharged as he was insolvent , insolvency being a ground for not enforcing such orders ( Article CARDINAL of LAW \u201c ORG \u201d \u2013 see paragraph CARDINAL below ) . The President rejected that application on DATE on the ground that it was devoid of purpose , since the applicant was still detained by virtue of the criminal conviction and sentence , \u201c a sentence unconnected with imprisonment in default \u201d .","On DATE Mr PERSON renewed his application to the President of the PERSON tribunal de grande instance and enclosed the letter from the customs authorities ( see paragraph CARDINAL above ) and a certificate attesting that he had no income - tax liability . The President was asked to hear the application in his capacity as urgent applications judge , under LAW ( see paragraph CARDINAL below ) .","In an order made in that capacity on DATE the President asked the public prosecutor \u2019s office , pursuant to the first paragraph of LAW and to LAW ( see paragraph CARDINAL below ) , to refer the difficulty to ORG , which had sentenced the applicant . The order read as follows :","\u201c ...","Mr PERSON asserted that he was insolvent and produced a certificate attesting that he has no liability for ORG ( income tax on individuals ) for DATE .","The urgent applications judge has jurisdiction to order a stay of execution of an order for imprisonment in default if the committal warrant is not prima facie valid .","The prima facie validity of a warrant is not in issue if it was issued by a court in a decision that is final ...","Mr PERSON produced a certificate attesting that he has no liability for ORG . That document does not by itself suffice to show that he is insolvent or justify discharging the order for imprisonment in default .","In these circumstances it is appropriate to ask the public prosecutor \u2019s office to refer the difficulty to ORG , which passed the sentence . \u201d","At a hearing on DATE ORG heard the applicant , the lawyer officially assigned to represent him and the customs authorities ; the latter submitted that ORG CARDINAL and CARDINAL ORG were not applicable in the case . On DATE ORG dismissed the application for discharge , holding that :","\u201c ORG considers that ORG decision to prolong the applicant 's detention under LAW is not covered by the ordinary criminal - law procedure laid down in Articles CARDINAL et seq . of LAW giving jurisdiction to the urgent applications judge ( Court of Cassation , CARDINALnd ORG , DATE ) .","Consequently , ORG holds that PERSON \u2019s application for the order for his imprisonment in default to be discharged is admissible , as it concerns an interlocutory issue over the execution of a sentence , but is unfounded in law . \u201d","The applicant was released on DATE after paying the sum of FRF CARDINAL to the customs authorities .","Imprisonment in default is an invention of NORP law originally designed to guarantee execution of a court order to pay a sum of money either to the ORG or to a private individual . It consists in detaining the recalcitrant debtor in a short - stay prison , where he is not obliged to work . It is not an alternative to payment , as the person against whom the order is made remains liable to pay the sum due ( LAW see paragraph CARDINAL below ) , but it may not be imposed a second time for the same debt . Its scope has gradually been whittled away since DATE , when it was seen as a real means of punishment available to creditors , who could apply to have insolvent civil debtors committed to prison . It was permanently abolished in civil and commercial proceedings by the PERSON of DATE , surviving in respect of debts to the ORG only ( LAW CCP \u2013 see paragraph CARDINAL below ) , and the rules governing its enforcement have become more lenient ( exempting insolvent individuals from imprisonment in default was the most important feature of a reform introduced on DATE by PERSON no . DATE , LAW see paragraph CARDINAL below ) .","Imprisonment in default now serves to guarantee recovery of debts to the ORG , such as pecuniary penalties DATE with the exception of those imposed for political or press offences \u2013 or any other payment to the ORG not in the nature of civil damages .","It is governed in many respects by the same principles as those governing execution of sentence : it can not be executed once the time - limit for enforcing sentence has expired . In extradition cases ( PERSON of DATE ) and for the purposes of rehabilitation ( ORG CARDINAL and CARDINAL ORG ) its execution is deemed the equivalent of payment . The criminal - law principles that sentences must be adapted to the individual and that consecutive sentences must not be imposed apply .","In spite of these aspects , imprisonment in default is regarded not as a form of imprisonment in lieu of payment but as a guarantee of enforcement directed at the debtor 's person . On DATE , on an appeal on points of law by an offender sentenced to pay CARDINAL fines of ORG CARDINAL each for contravening a d\u00e9partement health regulation on manure tipping , ORG pointed out : \u201c Imprisonment in default is not a penalty . It is a means of enforcement automatically attached to any pecuniary order made by a criminal court and satisfies the requirements of both LAW ] ( b ) of the LAW ... and LAW No . CARDINAL . \u201d After the judgment in the case of PERSON v. GPE of DATE ( Series A no . CARDINAL-B , p. CARDINAL , \u00a7 CARDINAL ) , in which the ORG held that imprisonment in default was a \u201c penalty \u201d within the meaning of LAW , ORG of ORG held that in tax cases imprisonment in default is a \u201c punitive \u201d measure and may be ordered only if there has been a conviction for a criminal offence ( DATE , ORG . crim . ) no . CARDINAL ) .","When a criminal court orders imprisonment in default , it does not have power to vary its duration , which is laid down by law ( Articles CARDINAL and CARDINAL ORG \u2013 see paragraph CARDINAL below ) . In certain circumstances , as an exception to the ordinary law , the customs authorities can obtain enforcement of a warrant of committal for default before it becomes final ( Article CARDINAL ORG ) .","The Code of Criminal Procedure provides as follows :","\u201c Any interlocutory issue relating to the execution of a sentence shall be referred to the court which passed sentence , which may also rectify any purely clerical errors in its decisions . \u201d","\u201c Where such an issue is referred by the public prosecutor or the convicted person , the court shall rule in chambers after hearing submissions from the public prosecutor \u2019s office , counsel for the convicted person ( if counsel so requests ) and , where appropriate , the convicted person himself , subject to the provisions of Article CARDINAL . \u201d","\u201c Where an order to pay a fine or court costs or to pay the ORG any other sum not in the nature of civil damages is made in respect of an offence which is not political and does not attract a sentence of life imprisonment , the length of imprisonment in default applicable in the event of failure to comply shall be as laid down in LAW .","Where appropriate , the length shall be determined according to the total amount of debt outstanding . \u201d","\u201c The length of imprisonment in default shall be :","( CARDINAL ) DATE , where the fine and the sums whose payment has been ordered amount to MONEY , but do not exceed MONEY ;","( CARDINAL ) DATE , where they amount to MONEY , but not MONEY ;","( CARDINAL ) DATE , where they amount to MONEY , but not MONEY ;","( CARDINAL ) DATE , where they amount to MONEY , but not MONEY ;","( CARDINAL ) DATE , where they amount to MONEY , but not MONEY ;","( CARDINAL ) DATE , where they exceed MONEY . \u201d","\u201c Imprisonment in default may not be enforced in respect of convicted persons who prove that they are insolvent by producing :","( CARDINAL ) a certificate from their local tax - collector , stating that they are not liable to income tax ; or","( CARDINAL ) a certificate from their local mayor or police superintendent . The fact that the convicted person is in fact solvent may be proved by evidence in any form . \u201d","\u201c If , when in prison , the debtor wishes to lodge an urgent application concerning his imprisonment in default , he shall immediately be brought before the President of the tribunal de grande instance for the place where he was arrested , who shall rule on the application as a matter of urgency , or , if appropriate , refer the case back to the court which shall rule on the application in accordance with the procedure and subject to the conditions laid down in ORG and CARDINAL . \u201d","\u201c A convicted person who has been imprisoned in default of payment shall not thereby be released from the payment obligation . \u201d","Article L. CARDINAL - CARDINAL , second paragraph , of ORG provides :","\u201c As an exception to the provisions of LAW , the length of imprisonment in default shall be DATE where the fine and any other pecuniary penalties imposed for an offence mentioned in the above paragraph [ breaches of provisions of statutory instruments concerning poisonous substances or plants classified as dangerous drugs ] or for related customs offences exceed F CARDINAL,CARDINAL . \u201d","Article L. CARDINAL - CARDINAL was repealed by Law no . CARDINAL of DATE , known as \u201c the transitional law \u201d , on the entry into force of the new Criminal Code and the amendment of certain provisions of criminal law and criminal procedure made necessary by its commencement . It was replaced by Article CARDINAL - CARDINAL ORG , which came into force on DATE and was amended by PERSON no . CARDINAL of DATE . Article CARDINAL - CARDINAL provides :","\u201c Prosecution for the serious crimes ( crimes ) defined in Article CARDINAL - CARDINAL shall be subject to limitation after DATE . Sentences passed on conviction for CARDINAL of these offences shall lapse by limitation after DATE from the date on which the conviction became final .","Prosecution for the other major offences ( d\u00e9lits ) defined in Article CARDINAL - CARDINAL shall be subject to limitation after DATE . Sentences passed on conviction for any of these offences shall lapse by limitation after DATE from the date on which the conviction became final .","As an exception to the provisions of LAW , the length of imprisonment in default shall be DATE where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed F CARDINAL,CARDINAL . \u201d","The following provisions of LAW are relevant in the present case :","\u201c CARDINAL . Judgments and decisions in customs cases may be executed by any means provided for by law .","Judgments and decisions by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default ... \u201d","\u201c A person convicted of a customs offence or an offence relating to indirect taxation may , where the court makes an express order to that effect , be kept in detention , even if an ordinary appeal or an appeal on points of law has been lodged , until he has paid the fiscal penalties imposed on him ; save in the case of drug offences , any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in LAW for failure to comply with an order to pay a sum equal to the fiscal penalties imposed . \u201d","The remedy available to a person who seeks , inter alia on the ground of his insolvency , to challenge an order for his imprisonment in default , is","an application to the urgent applications judge under LAW . If there is an arguable issue over execution of the order , the urgent applications judge refers the case to the trial or appellate court which made the order ( see LAW , first paragraph , ORG ) .","NORP The issue of the applicability of LAW and , therefore , of the ordinary procedure to cases of imprisonment in default of payment to the customs authorities has given rise to conflicting case - law ( see paragraph CARDINAL below ) . In its decision of DATE in the instant case , ORG held that the ordinary courts have no jurisdiction to review orders for imprisonment in default in customs cases ( see , to the same effect , the judgment of the Fort - de - France Court of Appeal of DATE which was however set aside by ORG on DATE ; and the order of the urgent applications judge of the GPE tribunal de grande instance of DATE ) . In so doing , it referred to a judgment of ORG of ORG ( PERSON , DATE ) , in which it was held :","\u201c ... The trial court 's decision to prolong the applicant 's detention , made under LAW of LAW , is not covered by the ordinary criminal - law procedure provided for in Articles CARDINAL et seq . of LAW , which gives jurisdiction to the urgent applications judge . \u201d","ORG also came to the same conclusion in a judgment of CARDINAL DATE ( ORG . crim . no . CARDINAL , p. CARDINAL ) :","\u201c No appeal on points of law lies from a decision of the ORG of Appeal ruling on an appeal against an order of the urgent applications judge made pursuant to LAW ... \u201d","In an earlier decision of DATE ORG of ORG had held that ORG had jurisdiction to order a stay of execution of an order for imprisonment in default after it had found that the order for detention was not prima facie valid as the sentence imposed on the person concerned had been time - barred thus precluding the execution of the order made against him .","ORG of ORG initiated a change in the case - law by its judgments of DATE and DATE , in which it held :","\u201c ... ORG did not misdirect itself in law in holding that , by introducing a particular form of imprisonment in default , LAW did not preclude the application of ORG CARDINAL and CARDINAL of LAW . \u201d ( ORG , DATE , ORG . IV no . CARDINAL )","and","\u201c The urgent applications judge has the power to suspend the enforcement of an order for imprisonment in default in cases in which he considers that the order has become prima facie invalid in the light of new developments since it was made , in particular , where the debtor claims that he is insolvent . However , in such circumstances , the judge must refer the case to the trial or appellate court which made the order . \u201d ( ORG , DATE , D. DATE , ORG CARDINAL )","That line has also been followed by ORG in a decision of DATE , in which it said :","\u201c By introducing a particular form of imprisonment in default , LAW did not preclude the application of ORG , CARDINAL and CARDINAL of LAW . A judgment declaring inadmissible an application for relief from execution , on the ground of insolvency , of an order for imprisonment in default must be quashed . \u201d ( Bull . crim . no . CARDINAL )","NORP The issue of the extent of the powers of the urgent applications judge on applications for discharge of an order for imprisonment in default has also given rise to inconsistencies in the case - law . The question has been whether the urgent applications judge has jurisdiction only to determine the prima facie validity of the order or whether he also has jurisdiction to decide whether the debtor is insolvent .","Some urgent applications judges have held that their jurisdiction is limited to reviewing the prima facie validity of the order for imprisonment in default ( see GPE tribunal de grande instance , DATE , ORG , CARDINAL\u2013CARDINAL DATE , p. CARDINAL , and GPE tribunal de grande instance , DATE ) . Others have referred the insolvency issue to the court that made the order ( see PERSON de grande instance , DATE , and LOC tribunal de grande instance , DATE ) , while still others have held that they were empowered to decide the insolvency issue and to discharge the order for imprisonment in default ( see GPE tribunal de grande instance , DATE , and GPE tribunal de grande instance , CARDINAL DATE ) .","ORG reversed and quashed a judgment of a court of appeal that had held that an urgent applications judge had jurisdiction to decide whether the debtor was insolvent ( see ORG decision of DATE cited above ) . The full court of ORG held on DATE that urgent applications judges do have such power . However , that decision concerned a debtor who was not in prison ."],"violated_articles":["5"],"violated_paragraphs":["5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87242","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF PETUKHOV v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Anatoly Kovler;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","In DATE the applicant was mistreated by the police . He brought CARDINAL civil actions against them .","On DATE and DATE ORG of GPE held for the applicant and awarded him compensation . It appears that both judgments became binding DATE after their pronouncement . The judgment of DATE was not enforced , because ORG had lost the writ of enforcement . The judgment of DATE was enforced on DATE .","Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE ."],"violated_articles":["6","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109322","languageisocode":"ENG","respondent":"GRC","branch":"COMMITTEE","date":2012,"docname":"CASE OF ZAFIROV v. GREECE","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)","judges":"Anatoly Kovler;Erik M\u00f8se;Linos-Alexandre Sicilianos","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested and criminal proceedings were brought against him for drug related offences .","After CARDINAL adjournments - CARDINAL on the court \u2019s initiative and CARDINAL on the request of the applicant - on DATE ORG convicted the applicant and sentenced him to life imprisonment and a fine of MONEY ( judgment no . CARDINAL ) .","On DATE the applicant lodged an appeal with ORG challenging the court \u2019s findings and its evaluation of the evidence , which was scheduled for hearing on DATE .","After several adjournments the hearing of the appeal took place on DATE and the applicant \u2019s sentence was reduced to DATE of imprisonment .","There is no indication in the case file whether an appeal on points of law was lodged challenging the appellate judgment ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67930","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2005,"docname":"CASE OF SCIACCA v. ITALY","importance":1,"conclusion":"Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","She was a teacher at a private school in GPE ( GPE ) . The school was owned by a limited liability company , PERSON , of which the applicant and CARDINAL other teachers were members and PERSON the manager .","NORP In DATE PERSON lodged a criminal complaint with ORG ( ORG ) about irregularities in the management of the school 's affairs . She stated that she was a de facto member of PERSON","NORP The GPE public prosecutor 's office opened an investigation in respect of the members and manager . On DATE the Revenue Police searched the company 's head office and the members ' homes . At that time the applicant received official notification that she was under investigation .","On an unspecified date the public prosecutor 's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion , fraud and forgery . On DATE the Revenue Police questioned the applicant .","On DATE the public prosecutor 's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association , tax evasion and forgery of official documents .","On DATE the investigating judge ordered PERSON and the other persons charged to be placed under house arrest .","On DATE the applicant was served with the judge 's decision . Like anyone placed under house arrest , she avoided being remanded in custody . However , ORG compiled a file on her ; photographs and fingerprints were included in it . On DATE the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference .","CARDINAL newspapers published articles about the investigation .","The first DATE , ORG , published CARDINAL articles , on CARDINAL and DATE . In the first one it referred to \u201c alleged formal and substantive illegalities in the management of a private school \u201d . After stating that the applicant and CARDINAL others , who had been placed under house arrest , had been charged with very serious offences ( criminal association , extortion , forgery , fraud and tax evasion ) , the newspaper indicated that other persons charged \u201c were allegedly also \u201d victims of acts of extortion committed by the QUANTITY people who had been arrested . After outlining the measures taken by the investigators , the newspaper stated that the CARDINAL people who had been placed under house arrest \u201c were allegedly \u201d the de facto managers of the school . The newspaper went on to explain what the extortion had consisted of . It added that \u201c unofficial accounts had been found at the home of the CARDINAL people concerned \u201d and that \u201c the investigators had found that the pupils enrolled \u201d in CARDINAL classes \u201c were in fact the husbands and cousins of the women who had been arrested \u201d . The only passage reporting the investigators ' statements concerned someone other than the applicant .","The other DATE published on DATE together with a photograph of the CARDINAL arrested women \u2013 was similar in content to the first one .","On DATE the second DATE , ORG , published on the front page a photograph ( identity format ) of the CARDINAL people who had been placed under house arrest and stated that they \u201c had set up a bogus school \u201d . The contents of the article were comparable to those of the articles published in DATE .","The applicant 's photograph , together with that of the CARDINAL other women who had been arrested , was published CARDINAL times on CARDINAL and DATE . Each time it was an identity photograph that had been taken by ORG when the file was compiled , at the time of the applicant 's arrest , and released by them to the press .","On DATE the applicant challenged the order placing her under house arrest in the tribunale della libert\u00e0 ( a court with jurisdiction to examine preventive measures ) of GPE .","On DATE the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest .","On DATE the public prosecutor 's office requested the applicant to be committed for trial . The case was listed for hearing before the investigating judge on CARDINAL DATE . However , the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure .","The case was therefore set down for hearing before ORG on DATE .","On DATE the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution ( Article CARDINAL of LAW \u201c the ORG \u201d ( applicazione della pena su richiesta delle parti ) ) , namely , DATE and DATE imprisonment and a fine of QUANTITY .","The parties did not provide the ORG with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press .","Presidential Decree no . CARDINAL of DATE sets forth the implementing regulations in respect of PERSON no . CARDINAL of DATE on the administration of prisons .","With regard to persons charged who have been arrested and imprisoned , paragraphs CARDINAL and CARDINAL of Regulation CARDINAL of the implementing regulations provide as follows :","\u201c A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned . The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her . The ministry shall be informed that the file is being stored .","The references of this personal file shall include civil - status particulars , fingerprints , photographs and any other item necessary for the exact identification of the person . \u201d","It is clear from paragraph CARDINAL of that regulation that the compilation of a personal file also concerns persons placed in pre - trial detention .","Law no . CARDINAL of DATE concerns the new rules relating to public safety . The relevant provisions of this PERSON read as follows :","Section CARDINAL \u2013 Coordination and direction of the police forces","\u201c With a view to implementing the guidelines issued by the Minister of the ORG on exercising the functions of coordination and unitary direction in respect of order and public safety , ORG shall carry out the following tasks :","( a ) classification , analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime , and distribution to the operational services of the above - mentioned police forces ;","... \u201d","\u201c The information and data referred to in section CARDINAL , paragraph ( a ) , must relate to information taken either from documents which are stored in CARDINAL way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with LAW or from police inquiries .","In all cases it is forbidden to gather information and data on a citizen solely on the ground of his or her race , religion , political opinions or adherence to the principles of a trade union , cooperative , charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in CARDINAL of the above - mentioned spheres .","... \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101179","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF SALIYEV v. RUSSIA","importance":2,"conclusion":"Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","The applicant was the president of a non - governmental organisation known as GPE ( Investors of GPE ) . In DATE he wrote an article entitled \u201c Shares for the NORP of GPE \u201d ( \u201c \u0410\u043a\u0446\u0438\u0438 \u0434\u043b\u044f \u043c\u043e\u0441\u043a\u043e\u0432\u0441\u043a\u043e\u0433\u043e \u043c\u0430\u0432\u0440\u0430 \u201d ) . The article was about the acquisition of shares in ORG ( a local energyproducing company which was at the time a part of the State holding ORG ) by a group of GPE - based firms . In the article the applicant described the purchase as a crooked deal and alleged that a high - level official from GPE , CARDINAL of the leaders of the progovernment political party , was behind the transaction . The article reads as follows :","\u201c Shares for the Moor of GPE","Where are the MONEY [ obtained from ] the placement of shares in ORG ?","We meant well ...","Everything started with an advertisement in [ the official DATE ] ORG of DATE , in which ORG informed us about the next step in its exploration of market in the country \u2013 namely , about the official registration of the issue of CARDINAL simple non - documentary nominal shares . [ In that advertisement ORG ] described in great detail the conditions and procedure for the issue of the shares , including the distribution of the shares amongst prospective buyers in the first priority group and the second priority group , explained how to formulate a request for acquisition of shares , and , naturally , indicated the bank account into which payments for the shares should be made . The payments were supposed to go through a commercial bank situated in GPE [ a city in southern GPE ] . In other words , a reputable firm got involved , and , as a consequence , the business was put on a solid footing . At least , that was the appearance that the sponsors of the project wanted to create for those who they hoped would \u201c swallow the bait \u201d and , under the influence of the very promising advert \u2013 published , by the way , in all the mass media of LOC \u2013 would be prepared to play for high stakes .","At the local level the preparations had started long before the publication of the advert . First of all , the issuer ( the corporation issuing the securities ) took care to develop convincing arguments which would help to get support for their project from public officials . On DATE a consultation meeting took place in the office of the head of LOC [ of GPE ] , where the question of payment of the local taxes due by ORG was discussed . It was no accident that that question was on the agenda of the meeting : by that time the outstanding fiscal debt of the energy industry [ vis - a - vis the local authorities ] , including the carryovers from DATE , amounted to MONEY \u2013 a very significant amount for the District [ budget ] . As a result of the discussion an agreement was reached which provided , in particular , that ( direct quote ) \u201c the administration of LOC discharges ORG from the payment of MONEY in local taxes . In return , ORG transfers [ to the administration ] its shares worth MONEY , at the market rate applicable at the moment of the transfer \u201d . Both parties signed the minutes of the meeting containing that clause . Naturally , among the signatures were those of Mr F.I.T. , the head of the local administration , and Mr G.I.S. , the managing director of GPE . Some time later Mr. PERSON made a similar proposal \u2013 \u201c shares in exchange for taxes \u201d \u2013 to the financial department of the administration of LOC and to the mayor 's office of GPE .","The plot thickens . At DATE the Duma of LOC adopted the PERSON on investment in the construction of the Ust - Srednekanskaya HydroElectric Power Plant ( HEPP ) . Almost certainly , everyone has heard about the problems with the financing of that \u201c never - ending construction project \u201d , so the desire of the lawmakers to use every opportunity to get the extra funding is quite understandable . As a result , in the new law , driven by the best aspirations , they stipulated that \u201c ... in order to complete the construction of the ORG plant , which is CARDINAL of the most important elements in the fuel and energy system of LOC Kolymaenergo Plc may dispose of the fees as a registered member of the special economic zone , due for the period until DATE , which were earmarked for the special - purpose extra - budgetary fund for social development in LOC .","Those fees should be considered as a capital investment in the main capital of ORG , in particular to pay for the construction costs of ORG , on condition that a corresponding part of the shares is registered as the property of the FAC \u201d ( end of quote ) . That law was enacted on DATE .","... But it ended up the same as always","As the saying goes , \u201c everything looked smooth on paper , but they forgot that in reality it was full of cracks \u201d . The fourth additional issue of shares was registered on DATE , and distribution was supposed to start in DATE . On different dates , all within the period of open distribution of the shares , a number of potential investors concluded standard acquisition agreements with ORG . ORG [ the biggest ORG - controlled energy company at that time ] , for good reason , bought shares for MONEY , thus investing in the construction of the Ust - Srednekanskaya HEPP . However , the situation has since changed , for the worse as regards most of the investors . CARDINAL of the local companies , ORG , expressed an interest in purchasing shares for MONEY . When the director of ORG . Mr PERSON , learned about that offer , he requested that all previous offers and the book where they were registered be destroyed , and decided that henceforth he would take care of the distribution of the shares .","Very soon , instead of the bank account in ORG indicated in the original issue plan , a new bank account was opened , this time with the PERSON bank ( GPE ) , and , following that , the implementation of the whole scheme , as designed from the very beginning , started . In a very short time , CARDINAL commercial firms were incorporated in GPE : ORG , ORG and ORG Bakkar transferred MONEY to ORG 's account with the PERSON bank ; with that money the recipient [ ORG ] paid for the promissory notes issued by ORG . For those not familiar with of all the subtle details , I should explain that promissory notes , unlike shares , do not need to be secured by any property or financial resources of the company that issued them . That is why any limited company with a charter capital of CARDINAL or QUANTITY and nothing besides , not a bean , can issue promissory notes for MONEY , provided that a buyer comes forward .","In our case the buyer was ORG , which at that time had an outstanding debt of MONEY owed to its employees , the pension fund and the ORG budget at different levels . The value of the promissory notes was MONEY ; it 's no coincidence that the head of PERSON earlier transferred MONEY to the account with the PERSON bank ( see above ) . And then that amount was passed CARDINAL times through the corresponding bank accounts , with the use of the same photocopied bank payment order . As a result , PERSON purchased , almost for free , a huge number of shares which amount to MONEY of the overall charter capital of GPE .","It is easy to guess what the reaction of the would - be investors , who suffered both pecuniary and non - pecuniary damage , was . Numerous legal suits , petitions and complaints were addressed to ORG , ORG of LOC , PERSON and other senior authorities . On DATE an NGO called GPE was created by a group of persons , and it immediately joined in the process of uncovering the truth . The main goal of that ORG consisted in promoting the interests of the investors , shareholders and other interested persons , and protecting their investment in the energy industry of LOC before the courts , social policy institutions or any organisations competent to address their concerns in whatever manner . But they received silence in reply [ to their petitions ] . In particular , the board of directors of GPE kept ignoring them , although it had been Mr ORG , the head of the board , who had approved the [ share ] issue plan .","As we can read in a letter from CARDINAL of the shareholders of GPE to the head of the management board of GPE , PERSON ( with a copy to the head of the management board of ORG , PERSON . ) : \u201c In the internal audit report , under the heading of \u201c Profits and losses \u201d there is no information about any money received from the shares sold . MONEY were supposed to be transferred to the bank account of ORG . That money was sufficient to pay the outstanding debts of the company , to relaunch normal operations through the bank account of the company and not through [ non - monetary ] \u201c clearances \u201d in which the company was losing CARDINAL of what was due to it .","\u201c Furthermore , it became known that some of the shareholders , namely PERSON and NORP TEK , had paid CARDINAL of the price [ of the shares they had purchased ] , whereas according to the audit report on the issue of ORG had paid [ ORG ] the full price . Why has this been done ? \u201d [ end of quote ]","The arguments of the claimant were considered unpersuasive","That letter was sent as early as DATE ; in DATE a meeting of shareholders took place , but the author of the letter did not get a reply until now . The question formulated at the end of the quote is , most likely , a rhetorical one , because we are all grown - ups and we all understand why it has been done . We also understand that after that scam with the shares came to an end , all our hopes inspired by the promises of the sponsors of the [ share issue ] plan , the hope of getting salary arrears paid , of getting tax paid , of investing in the construction of the Ust - Srednekanskaya HEPP , etc . , all those hopes have vanished .","A striking example is provided by the situation with the company LOC , which brought proceedings before ORG of LOC , seeking damages from ORG for false advertising . That company [ FAC ] was prepared to buy CARDINAL shares . DATE , on DATE , it made the first payment , but on DATE the money was returned [ to GPE ] since the account indicated in the agreement did not exist and the recipient of the money was not [ amongst the clients of the bank ] ( now we know why DATE the account with the LOC bank was never opened ) . The LOC company immediately sent PERSON all signed documents and asked them to provide new banking details for the bank transfer . However , there was no reply . A new request in similar terms was made on DATE , but , again , to no avail . As a result , on CARDINAL DATE a tort claim was introduced before ORG of LOC , for an amount of MONEY .","The claimant 's arguments were very convincing . Let us take the manipulation with the bank accounts described above . Whereas most of the potential buyers of the shares of the fourth additional issue tried ( in vain ) to use the account indicated in the issue plan , i.e .. the account that in reality did not exist , those investors for whom PERSON created a most - favoured regime were able to pay for the shares through a secret account in the GPE - based Korvet bank . The decision of the court mentioned that fact ; however , it was interpreted in a peculiar way . Indeed , as the decision established , \u201c ... owing to the absence of the bank account and of a recipient in the bank the money in the amount of MONEY was returned \u201d . To all appearances , that fact is established . However , on the same page , a few paragraphs below , one can read CARDINAL of the arguments which the defendant put forward : \u201c ... in breach of the agreement on the acquisition of shares the claimant had made the payment before the conclusion of the agreement . \u201d On the next page we see the court 's conclusion , which was the central reason for dismissing the tort action : \u201c ... at the moment of conclusion of the agreement the claimant had been required to transfer to the defendant MONEY . The defendant , in accordance with section CARDINAL of the agreement , was to forward to the claimant the documents confirming the payment together with a signed copy of the agreement . However , in breach of the agreement , the claimant only transferred MONEY for the shares \u201d .","Too many inconsistencies , are there not ? In fact , contrary to what the court established , the payment had been made on DATE , i.e. , after the conclusion of the agreement , which had been signed on DATE . What does this mean ? First of all , it means that the materials in the case file were not duly studied by the court . Furthermore , what difference would it make if the claimant transferred MONEY and not CARDINAL ? Would the correct bank account appear in the issue plan ? Would it allow the company to become the lawful owner of the shares ? Unfortunately , miracles are impossible , especially when nobody wants to produce a miracle . And please pay attention to the phrases which are underlined [ in the quote above ] . It is hard to reconcile the argument of the defendant ( that the payment should have been made after conclusion of the agreement ) and the argument of the court ( that the buyer was under an obligation to send a signed copy of the agreement together with a document confirming payment ) . I will further note that the acquisition agreement required [ the buyer ] to pay MONEY of the overall sum of the transaction , but did not specify whether such payment had to be made in instalments or in one go .","And that is not the end . In the section \u201c Distribution of the shares amongst buyers in the second priority group \u201d of the issue plan one can read : \u201c Offers from prospective buyers in the second priority group will be accepted [ by ORG ] in chronological order of their receipt \u201d . That means that the dates of receipt of every offer should be registered in a special logbook . However , the requests by the claimant and by the court to produce such a logbook were to no avail . It was only possible to see the record of existing shareholders , in which , under no . CARDINAL , we can see the name of the very same GPE - based firm which obtained , for unclear reasons , preference in buying the shares . Still , it was impossible to get a clear answer to the question whether an offer from GPE to buy shares was registered , and , if so , on what date .","Ready or not , here I ( do n't ) come ?","Very shortly [ I will tell ] you about those who stood to gain in this whole obscure story . When the prosecution officials involved in the inquiry into the situation with the shares came to GPE , they were unable to find PERSON , ORG or ORG at the official addresses given , or those people who were mentioned in the documents of ORG . The Moor has done his work , and the LOC has left , without leaving an address or even saying \u201c Goodbye \u201d .","This is the true situation ; however , criminal investigation no . CARDINAL into the abuse of official position by the managers of ORG was finally closed for lack of the constitutive elements of a crime .","The decision of ORG of LOC was appealed against by ORG ; in its grounds of appeal all the breaches of the law in the sphere of the advertisement , selling and buying of shares were described in detail . However , ORG again just ignored the arguments of the claimant . None of the facts mentioned above , which clearly spoke against the defendant , were taken into account . As a result , the claimant , together with PERSON , lodged an appeal on points of law with ORG in GPE . As to the discontinuation of the criminal investigation , we will challenge the decision of the prosecution in this respect by all legitimate and civilised means .","When that dispute started , we informed PERSON . , the head of the management board of ORG , and ORG , of the situation . However , a principle of esprit de corps came into play , and they decided not to wash their own dirty linen in public . As it appears , they want to cover up the affair at all levels .","If we do not succeed , we will still continue fighting . On DATE our organisation sent to ORG a statement of claim against ORG and ORG and the then head of ORG of GPE , the leader of the \u201c GPE \u201d fraction in ORG , PERSON , the General Director of GPE Mr. PERSON , and the chief accountant PERSON What is our organisation asking for before the court ? First of all , that it declare the advertisement of the fourth issue of shares abusive , and the issue itself invalid . We think that ORG breached the provisions of the federal legislation , in particular , the Standards for the Issue of Shares , ORG of the Rights of Investors and ORG . The legal provisions on which we base our claims are indicated in the statement of claim .","So far the date of the hearing in this case has not been set ; it will take place in DATE or DATE , after the judge returns from her leave . By the way , the judge took DATE leave DATE after the case had been assigned to her . A similar handling of cases concerning machinations with shares has become almost systemic .","All this squabbling can not but be detrimental to the investment climate in the region , because ORG is a public limited company and its shares can be purchased by foreign investors as well . And now , when GPE is seeking recognition as a country with a market economy , events of this kind will not help it to acquire weight .","In the current situation the NGO Investory Kolymy will insist on an objective examination of its civil claims and of the criminal case , in order to protect the rights of investors .","PERSON ,","Head of ORG \u201d","On DATE the applicant submitted the article to a municipally owned newspaper , PERSON , for publication . He produced documents in support of the facts described in the article . Mr PERSON , the editor - in - chief of the newspaper , agreed to publish the article . It was included in issue no . CARDINAL of DATE . That issue , with the applicant 's article in it , had a print run of CARDINAL copies .","On TIME , CARDINAL copies of the issue containing the applicant 's article were sent to subscribers and to ORG libraries . CARDINAL copies were given to the distributing company Rospechat to be sold at street distribution points , kiosks and newsstands . However , shortly afterwards those copies were withdrawn from the newsstands and they were later destroyed . According to the Government , the withdrawal was requested by PERSON ( the editor - in - chief ) . They submitted a letter from the editor - in - chief to the head of Rospechat asking the latter to withdraw the copies . The letter is dated DATE ; however , according to the applicant it was backdated . Only the copies that had been sent to libraries and subscribers remained . The ORG submitted that a part of the print run had already been sold , with the result that CARDINAL copies had been withdrawn and destroyed .","On DATE the editor - in - chief wrote a letter to the mayor of GPE asking the latter to release him from the position of editorinchief because he \u201c was unable to perform his duties in a fully professional manner \u201d .","On DATE the head of the trade union at the GPE hydroelectric power plant wrote a letter to the editor - in - chief of ORG asking him to explain why issue no . DATE had been withdrawn from the newsstands .","On DATE the editor - in - chief replied to that letter explaining that he had not given the relevant order . He claimed that the decision had been taken by the head of the distributing company Rospechat . He , the editor - in - chief , had had to sign a backdated order for withdrawal of the copies , and from a private conversation he had understood that the copies had been withdrawn because of the applicant 's article , which had mentioned the names of certain politicians whom the editor - in - chief described as \u201c untouchable \u201d . After that incident he \u201c [ had taken ] the difficult decision to resign from the position of editor - in - chief of ORG \u201d , because , in his words , \u201c the newspaper was unable to enjoy freedom of speech and of the press , \u201d and he \u201c did not want to deceive readers \u201d . It appears that soon afterwards the editor - in - chief left PERSON and started working as a journalist on a private newspaper .","In DATE the applicant tried to publish the article in several regional and central newspapers , but to no avail .","On an unspecified date in DATE the applicant lodged a formal complaint with the regional prosecutor 's office concerning the withdrawal of the copies . In his submission , the withdrawal amounted to unlawful interference with freedom of the press , a criminal offence under LAW .","On DATE that complaint was transmitted to the GPE town prosecutor 's office . The case was assigned to an investigator , who questioned the head of Rospechat and the former editor - in - chief .","On DATE the head of Rospechat testified before the investigator that the decision to withdraw the copies had been taken by the former editor - in - chief . On DATE the investigator questioned Mr PERSON , the former editor - in - chief of the newspaper . Mr PERSON confirmed that he had asked Rospechat to withdraw the copies of the newspaper . He explained that he had agreed to publish the article because it concerned an interesting subject and because the applicant had shown him documents which supported the facts described in the article . The editorinchief had thought that the article would arouse public interest and had decided to publish it . However , after fresh consideration , when the newspaper had already been printed and sent out for distribution , he had decided to withdraw it . He had realised that the editorial staff \u201c would have problems \u201d if the article was published . As to his letter of DATE , it had not been accurate , because at the time he had been upset over his own decision to resign from the post .","On DATE , after a preliminary inquiry , the investigator decided not to open a criminal investigation . The investigator found that the decision to withdraw the copies had been taken by the editor - in - chief himself without any coercion . The investigator noted , however , that the decision of the editor - in - chief to withdraw the copies had been motivated by the need to avoid lawsuits and litigation which might have followed the publication of the article , and to protect the editorial staff . The investigator concluded that no interference with freedom of the press had occurred .","The applicant challenged that decision before the court . On DATE the ORG examined the materials in the case file and heard evidence from the applicant and the former editor - in - chief ; the latter testified that he had signed the order to withdraw the copies after they had already been withdrawn from sale . After examining the applicant 's complaint , ORG decided to quash the decision of DATE . The court noted that by law the withdrawal of a print run could be ordered only by the judicial authorities . ORG also ordered certain additional investigative measures to be carried out by the investigating authorities .","On DATE the GPE town prosecutor ordered an additional inquiry . The case was assigned to another investigator , who questioned the applicant , the former editor - in - chief , the head of Rospechat and a staff member of Rospechat . The applicant testified that when he had learned about the withdrawal of the copies he had called the editor - in - chief , who explained that they had been withdrawn by a decision of Rospechat , and that the head of Rospechat had persuaded him to sign a backdated order for withdrawal .","NORP The head of Rospechat testified that the copies had been withdrawn by order of the then editor - in - chief . He also denied putting any pressure on the editor - in - chief .","NORP The former editor - in - chief confirmed his previous testimony given to the investigator of the town prosecutor 's office . As to his testimony before ORG , it was his view that the copies had been withdrawn before the order had been signed . Indeed , he had discovered at CARDINAL of the street kiosks that all copies of issue no . CARDINAL had disappeared . However , he had no proof that they had disappeared because they had been withdrawn .","Finally , the staff member of Rospechat confirmed that on an unspecified date she had helped the then editor - in - chief of PERSON to withdraw the copies from the street kiosks . Altogether , they had managed to withdraw CARDINAL copies .","On DATE the investigator concluded that there was no case to investigate . His reasoning was similar to the reasoning of the previous investigator of DATE .","NORP The applicant challenged that decision before the courts . On DATE ORG upheld the decision of CARDINAL DATE . The court concluded that the prosecution inquiry had been carried out with due diligence and that the findings of the inquiry had been properly reasoned . The applicant appealed , but on DATE ORG upheld the judgment of DATE .","The applicant brought court proceedings seeking to have CARDINAL copies of issue no . CARDINAL containing his article reprinted and sold at street kiosks .","On DATE the ORG dismissed his action . The court stated that the newspaper , as the owner of the copies , could dispose of them of its own free will . The court also found that there had been no contract between the applicant and the newspaper obliging the latter to distribute the issue containing the article .","The applicant appealed . On DATE ORG upheld the lower court 's decision , repeating the latter 's reasoning .","According to the charter of the newspaper , PERSON was founded by the municipal property committee of the municipality of PERSON ( \u201c the municipality \u201d ) in the form of a \u201c municipal institution \u201d ( \u043c\u0443\u043d\u0438\u0446\u0438\u043f\u0430\u043b\u044c\u043d\u043e\u0435 \u0443\u0447\u0440\u0435\u0436\u0434\u0435\u043d\u0438\u0435 ) , with a view to informing the population of GPE about social , political and cultural life in the town . The municipality retains the ownership rights in respect of the assets of the newspaper , while the newspaper exercises a right of \u201c operational management \u201d ( \u043f\u0440\u0430\u0432\u043e \u043e\u043f\u0435\u0440\u0430\u0442\u0438\u0432\u043d\u043e\u0433\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u044f ) in respect of those assets . The municipality approves the budget of the newspaper and payroll expenses . The newspaper receives its funding from the municipal budget ; it can also receive income from other sources such as advertising , subscription fees , and so on . In DATE , according to the Government , all the newspaper 's expenses ( MONEY ) had been paid from the municipal budget .","The municipality can \u201c define targets \u201d for the development of the newspaper . The newspaper has an \u201c editorial council \u201d ( \u0440\u0435\u0434\u0430\u043a\u0446\u0438\u043e\u043d\u043d\u044b\u0439 \u0441\u043e\u0432\u0435\u0442 ) , a \u201c coordinating and advisory body \u201d composed of the editor - in - chief and several representatives of the municipality .","The editorial policy of the newspaper is defined by the \u201c editorial board \u201d ( \u0440\u0435\u0434\u0430\u043a\u0446\u0438\u043e\u043d\u043d\u0430\u044f \u043a\u043e\u043b\u043b\u0435\u0433\u0438\u044f ) , composed of the editor - in - chief , his deputy , the secretary , and the heads of departments . The editorial board can propose materials for publication or recommend not publishing \u201c controversial material \u201d .","The editor - in - chief of the newspaper is appointed by the municipality . The editor - in - chief appoints the other staff members of the newspaper and acts on behalf of the newspaper vis - \u00e0 - vis third parties . The municipality can not compel the newspaper to publish material if it has been rejected by the editorial board , unless the law provides otherwise or the material is of an official nature . The charter of the newspaper does not stipulate , however , who can decide to withdraw or destroy copies of the newspaper or the grounds for doing so .","LAW of DATE , with further amendments , prohibits censorship : State bodies and officials can not require a communication medium ( for instance a newspaper ) to obtain prior authorisation for the publication of material . The Act also prohibits banning the distribution of certain material ( section CARDINAL of the LAW ) .","Under section CARDINAL ) of the LAW the editor - in - chief heads the editorial board and \u201c takes final decisions as to the production and distribution of the medium \u201d .","A communication medium may be established by a ORG body . The owner ( founder ) of the medium may interfere with editorial policy only to the extent defined in the charter of that medium ( sections DATE of the Act ) .","Under LAW of the LAW , non - subscription sales of a newspaper ( for example , sales from newsstands on the streets ) may be limited only to the extent defined by the LAW .","Under LAW of the LAW confiscation or destruction of a print run ( \u0442\u0438\u0440\u0430\u0436 ) or part of it is possible only pursuant to a court decision [ to this end ] which has entered into legal force .","Under LAW of the LAW , unless otherwise provided by the law , nobody can compel the editorial board to publish material which has been rejected by that board .","Founders , editors , publishers , journalists and authors may be held liable for breaches of NORP legislation on the mass media ( section CARDINAL ) ."],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69543","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2005,"docname":"MCCALLA v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr F.Vaz , a lawyer practising in GPE .","The applicant arrived in GPE in DATE and was granted leave to enter as a visitor until DATE . He applied for an extension which was granted until DATE . On DATE , he applied for a further extension as the husband of S. , a NORP citizen whom he had married on DATE . Leave was granted for DATE , expiring on DATE .","S. had a daughter PERSON ( born in DATE ) , by a previous relationship , who had regular contact with her natural father .","Meanwhile in DATE , the applicant was arrested for drugs offences . Following a plea of guilty to CARDINAL counts of supplying crack cocaine and CARDINAL counts of offering to supply , the applicant was sentenced on DATE to DATE imprisonment . The judge did not make any recommendation for deportation .","On DATE , PERSON gave birth to the applicant 's son , NORP","On completion of CARDINAL of his sentence , the applicant was released on parole .","On DATE , the ORG Secretary gave notice of his decision to make a deportation order against the applicant , referring to his conviction in view of which he deemed it conducive to the public good to make such an order .","DATE , the applicant appealed .","Following a hearing , by a decision of DATE , the Adjudicator rejected his appeal . He gave weight to the applicant 's good record in prison and his family circumstances . He noted that PERSON had relatives , including her parents , in GPE and had visited there on holiday , although she had lived all her life in GPE . Having regard however to the fact that the wife had a house and job in GPE , that NORP had uncertain medical problems and PERSON had regular access with her natural father , he did not consider that it would be reasonable to expect the wife to emigrate to GPE , in particular as it would severe PERSON 's links with her natural father . Nonetheless , weighing these factors together with the seriousness of his offences , the short period in which the applicant had lived in GPE and the fact that the applicant and PERSON had married knowing that he was not a NORP citizen and did not have indefinite leave to remain , he found that the measure was not unjustified .","On DATE , ORG refused permission to appeal , finding no error in the Adjudicator 's balancing of the relative factors .","On DATE , ORG refused an application for statutory review ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57511","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":1980,"docname":"CASE OF K\u00d6NIG v. GERMANY (ARTICLE 50)","importance":2,"conclusion":"Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings","judges":"","text":["The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving some brief particulars ; for the remaining details , reference should be made to paragraphs CARDINAL of the ORG \u2019s judgment of CARDINAL DATE ( ibid . , pp . DATE ) .","That judgment concerned the length of actions brought by Dr. PERSON before ORG in DATE and in DATE to challenge , respectively , the withdrawal of the permit to run his clinic and the withdrawal of the authorisation to practise medicine .","In the second matter , ORG had dismissed the applicant \u2019s action by a judgment delivered on DATE which had been affirmed by ORG on DATE . Dr. PERSON lodged an appeal ( NORP ) and an application to quash ( Revision ) but these were rejected by ORG ) , in CARDINAL final decisions , on DATE and DATE .","In the case concerning the clinic , ORG had dismissed Dr. PERSON \u2019s action on DATE . An appeal by him against that decision is still pending before ORG which , with the agreement of the parties , stayed the proceedings on DATE pending the outcome of the above - mentioned proceedings before ORG .","After delivery of the ORG \u2019s judgment of CARDINAL DATE , the ORG and the applicant attempted , with the ORG \u2019s assistance , to arrive at a friendly settlement of the latter \u2019s claims , details whereof had been given by Mr. PERSON in his letter of DATE ( see paragraph CARDINAL above ) . The attempt met with failure in DATE : Dr. PERSON found that the ORG \u2019s offer of DM CARDINAL in full and final settlement was not sufficient .","The applicant seeks pecuniary compensation for the CARDINAL heads of damage allegedly caused to him by the violation of Article CARDINAL par . CARDINAL ( article DATE ) : he maintains that his financial and professional situation may have been permanently ruined and , secondly , that his personal and professional reputation had been indirectly lowered . Without quantifying his claims , he furnishes certain particulars DATE regarding notably the average annual income he could have anticipated as a medical practitioner and as the head of a clinic - on the basis of which he considers it possible to gauge the extent of his aggregate loss and to assess the fraction thereof attributable to the fact that the \" reasonable time \" was exceeded . In addition , the applicant asks for reimbursement of the expenses he incurred both in GPE , in order to expedite the hearing of his actions , and before the Convention institutions .","Dr. PERSON leaves the assessment of the sum to be awarded to him to the ORG \u2019s discretion , thereby confirming the position he had adopted in DATE ( Series A no . CARDINAL , p. CARDINAL , par . CARDINAL ) .","In their observations of DATE ( see paragraph CARDINAL above ) , ORG stated that they did not wish to comment on the first of the applicant \u2019s claims which they saw as being concerned with the consequences of the CARDINAL withdrawals of authorisation ; at the hearing , they submitted that in their opinion the attribution of specific material losses to the breach found by the ORG was impossible , at least on the strength of the evidence before it . On the other hand , the Delegates suggest that account should be taken of the fact that the applicant was left in a prolonged state of uncertainty as to his professional future , and this at a time of life - between the ages of forty - nine ( in DATE ) and CARDINAL ( in DATE ) - when a man is normally at the peak of his career . They also consider that the breach of LAW . CARDINAL ( article DATE ) , taken by itself , may be another factor having a bearing on an award of just satisfaction .","As far as concerns the costs of the proceedings , the expenditure incurred by Dr. PERSON in order to expedite the domestic litigation and to present his case in GPE is regarded by the Delegates as a relevant item . They express no firm view as to whether the same applies to the expenditure arising from his applications to the NORP courts for restoration of the suspensive effect of his appeal against the withdrawal of the authorisation to practise ; in their opinion , those applications were aimed not at speeding up the proceedings but at limiting the consequences of their excessive length . Neither do the Delegates comment on the justification for the figures given by the applicant .","The ORG \u2019s position is as follows : there is no causal link between the breach found by the ORG and the alleged damage to Dr. PERSON \u2019s professional career ; on the other hand , \" reasonable \" , \" necessary \" and proven costs resulting from the exercise of the domestic legal remedies can give rise to compensation to the extent that those remedies were aimed at accelerating the procedure ; furthermore , the \" reasonable costs \" incurred in connection with the proceedings before the Convention institutions should be reimbursed ; finally , it is for the ORG to determine whether the applicant should be awarded monetary compensation for the \" non - material \" injury he suffered by reason of the mere fact that the \" reasonable time \" was exceeded ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23554","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2003,"docname":"CHADWICK v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza;Viera Str\u00e1\u017enick\u00e1","text":["The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by ORG , a firm of solicitors practising in GPE , GPE . The respondent Government are represented by their Agent , Mr NORP PERSON , ORG , GPE .","The facts , as submitted by the parties , may be summarised as follows .","On DATE the applicant was arrested on suspicion of being involved in a conspiracy to manufacture a controlled drug ( amphetamine sulphate ) . He co - operated with the police during interview , answering the questions put to him .","The applicant told the police during interview that he had been working with a co - conspirator , PERSON , on the production of a drug and had been aware that PERSON was a police informant . The applicant admitted that , at ORG instigation , he had procured some of the ingredients ( ORG ) for the production of the drug . However , his intention all along had been to persuade others to become involved in the project and that he had acted with PERSON \u2019s knowledge and , as he believed , with the knowledge and approval of the police operating in the framework of a broader police entrapment operation aimed at netting , amongst others , PERSON .","The applicant , along with ORG and another co - defendant , PERSON , was tried before a jury at ORG from CARDINAL DATE to DATE . The charge against the applicant related to the production of a controlled drug contrary to section CARDINAL ) of LAW DATE .","The applicant \u2019s and his co - accused \u2019s lawyers were notified before the start of the trial that the prosecution would be making an ex parte Public Interest Immunity ( \u201c ORG \u201d ) application . No indication was given of the categories of materials to be incorporated in the application . However , the applicant acknowledges that his lawyers were informed in the case summary received from the prosecution that \u201c one matter \u201d which would be raised with the judge would be the position in respect of PERSON \u2019s full \u201c profile \u201d .","The defence lawyers were subsequently informed that the ORG hearing had been fixed for DATE before His Honour Judge PERSON . At that hearing , the judge ruled in favour of the prosecution . However , he stated that a schedule of information given by PERSON had to be served on PERSON \u2019s lawyers and that consideration ought to be given to disclosure to the applicant and the other co - accused . The prosecution sent a schedule of ORG activities as an informant to PERSON \u2019s lawyers with a request that they comment on why the schedule should not be disclosed to the lawyers of the other co - accused . PERSON \u2019s lawyers objected to disclosure to his co - accused .","According to the applicant , his lawyers were aware that the trial judge granted ORG in respect of at least \u201c one matter \u201d DATE , but can not confirm whether a ORG order was sought or made in respect of other materials .","The schedule was produced at the trial by ORG lawyers , without objection from any party . According to the ORG , the bulk of the source documentation from which the schedule was prepared was disclosed during the trial , some of it in edited form with the approval of the trial judge .","There was a further ex parte hearing during the course of the trial , following an application for disclosure by ORG counsel . The prosecution declined to state the category of material raised during the hearing . The judge approved the prosecution \u2019s ORG claim for the material in question .","The essence of the prosecution \u2019s case was that the applicant had been intimately involved in the preparation of false documents for the purchase on behalf of ORG ( \u201c L&W \u201d ) of a range of chemicals used in the manufacture of amphetamine sulphate including ORG . The documents had been prepared with the knowledge of PERSON , who was a police informant and , at the relevant time , in GPE prison along with the applicant and PERSON . L&W was not a legitimate trading company , and had no legitimate need of ORG . An order was placed with ORG through a third party , J. , acting on behalf of a company called ORG . ORG was suspicious of the order and informed the police , which authorised a controlled release of the ORG . The applicant , who was on home leave from GPE prison , received delivery of a quantity of ORG at ORG home , PERSON being in GPE prison at the time . Around this time , the applicant had also bought a quantity of glucose and other chemicals . The applicant split up the chemicals he had obtained , keeping some and storing others with his sister . He had never himself spoken to the police about his involvement in what he claimed was an entrapment operation with the intention of claiming a reward . The prosecution stressed that PERSON had been repeatedly told by the police not to get involved in the manufacture of drugs . CARDINAL police officers were called to confirm that PERSON was acting on his own initiative and without any encouragement from the police .","According to the applicant , he had intended to give evidence at the trial in line with what he had told the police during the interview . A proof of evidence had been prepared in this connection for use at the trial . Evidence of what was said at the police interview was adduced in open court by the prosecution .","On DATE , CARDINAL men visited the applicant at his home and threatened him and his family with severe physical violence and told him that if he said anything in court about Pollock , \u201c he had better make sure he had good fire insurance \u201d . The applicant contacted his solicitor who recalled that the applicant \u201c sounded very frightened and upset \u201d . The solicitor relayed the information the following morning to the applicant \u2019s barrister .","After the close of the prosecution case and before the applicant was due to give evidence , the trial judge , pursuant to section CARDINAL of ORG LAW DATE ( \u201c the DATE LAW ) , informed the applicant of the consequences of his not giving evidence . The applicant was warned :","\u201c You have heard the evidence against you . Now is the time for you to make your defence . You may gave evidence on oath and be cross - examined like any other witness . If you do not give evidence or , having been sworn , without good cause refuse to answer questions , the jury may draw such inferences as appear proper . That means that they may hold it against you . You may also call any witness or witnesses whom you have arranged to attend court . Afterwards you may also , if you wish , address the jury by arguing your case from the dock . But you can not at that stage give evidence . Do you now intend to give evidence ? \u201d","The applicant chose not to give evidence on account of his fear of the consequences for himself and his family . He did not opt to go into the witness box and decline to answer questions about PERSON since , according to the applicant , he did not know at that stage of the proceedings whether the trial judge would accept his plea that he was in fear of Pollock .","Walsh did not testify at the trial . Pollock and PERSON gave evidence . PERSON was cross - examined by the applicant \u2019s counsel on the basis that PERSON was intimately and actively involved in the manufacture of drugs , had presented himself to the applicant as a \u201c soldier \u201d for major drug dealers including a certain \u201c PERSON \u201d , had sent another \u201c soldier \u201d to give the applicant money to finance the operation and had received from the applicant QUANTITY of ORG at a specific location . According to the applicant , most of the cross - examination of ORG was conducted by the prosecution .","At a stage when the cases for all the defendants had been concluded and before the summing up , the applicant \u2019s counsel applied to the trial judge for a voire dire with a view to laying an evidential basis to persuade the judge not to direct the jury to draw an adverse inference from the applicant \u2019s silence in court . The application was made on the basis of the threats which the applicant had received , threats which , the applicant \u2019s counsel argued , could be confirmed by hearing the applicant \u2019s solicitor on the voire dire .","The application was opposed on the ground that the correct course of action would be for the applicant to go into the witness box and , whenever a question was asked which he did not wish to answer through fear , to decline to answer it and give the reason . It was also opposed on the basis that it would be unfair for the applicant \u2019s counsel to be permitted to cross - examine Pollock in a manner designed to incriminate him and for the applicant then to be able to avoid inferences on the basis of a fear of the consequences of giving evidence to the same effect .","According to the applicant , prosecution counsel in effect summarised for the judge the nature of the applicant \u2019s fears and his defence barrister was only able to correct the version given by prosecution in the briefest of terms .","The judge refused the application , although he was prepared to accept that the applicant was afraid . After the ruling had been given , counsel for the prosecution stated in the presence of all concerned :","\u201c I take it from [ the ] ruling that you have agreed ... that it would not be right to call [ the applicant ] on a voire dire , and if [ counsel for the applicant ] wishes to establish a reason he can only do so by calling his client to give evidence in front of the jury , he then being cross - examined in the way I had indicated . \u201d","The judge replied that that was implicit in what he had said . Counsel for the prosecution stated that that was his understanding , but it was as well for the matter to be plain .","The applicant \u2019s counsel did not make an application to allow the applicant to give evidence and to decline to answer questions in respect of Pollock .","The judge put the applicant \u2019s case to the jury as it appeared from the transcripts of the police interviews . According to the applicant , since neither he nor PERSON testified at the trial there was no evidence before the jury that the applicant had acted at ORG \u2019s instigation or that the applicant believed that PERSON was a police informant or that the police had approved of the applicant \u2019s actions in the light of the wider entrapment plan .","The trial judge directed the jury in accordance with the relevant practice guidelines at the time on the circumstances in which it may draw an adverse inference from the applicant \u2019s silence in court . The trial judge stated :","\u201c Now , what then are you permitted to consider about ... the failure to give evidence ? Now , when a defendant does not give evidence , that is his right . The right to silence , as it is sometimes called , has not been removed . A defendant is entitled , as indeed have [ the applicant and PERSON ] made it perfectly clear they are entitled not to give evidence . But the law provides now that you may draw such inferences as appear proper from their failure to do so . But before you draw such inferences you have first to be satisfied that there is a prima facie case against them . So the first thing that you must do is to consider whether there is what we call a prima facie case without taking into account the failure to give evidence . You must be satisfied that the prosecution have established that there is a case to answer before drawing any inference from silence .","Now , if you do draw such an inference and you are satisfied that there is a case to answer , then you may ... , but you do n\u2019t have to , you make take into account the failure to give evidence .","Now what proper inferences can you draw from the [ applicant \u2019s ] decision not to give evidence ? If you conclude that there is a case for him to answer then you may think that [ the applicant ] would have gone into the witness box to give you an explanation , or give an answer to the case against him . If the only sensible explanation for his decision not to give evidence is that he has no case to answer - or he has no answer , I should say , to the case against him , or none that could have stood up to cross - examination , then it would be open to you to hold against him his failure to give evidence . ... It is open to you , it is open to you to hold against [ the applicant ] his failure to give evidence but only , only if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him , or that none could have stood up to cross - examination .","Now , in [ the applicant \u2019s ] case , [ his counsel ] has made a suggestion to you as to why he has n\u2019t gone into the witness box and his answer is because he , [ the applicant ] , has said it all in his interviews ; nothing more to say . Well , you must consider whether that is a good enough explanation because I have already told you that which is said by a defence , a defendant , in interview , in a statement which is not made on oath , not repeated on oath , therefore not subject to cross - examination .... . You may wonder , therefore , whether that is a good explanation . It is a matter for you . ( ... ) .","( ... ) Inference from failure to give evidence can not of its own prove guilt . Again , I am sorry to repeat this but it is very important to this case because it is the nub of it or the crux of it , namely that it is what the defendants had in their minds which matters , and it is therefore for the prosecution to disprove the explanation which they have given . ( ... ) . \u201d","The applicant \u2019s conviction and appeal","On DATE the applicant was found guilty as charged and sentenced to CARDINAL years\u2019 imprisonment . ORG were also convicted , each receiving sentences of DATE respectively . The jury were unable to agree a verdict in relation to PERSON . PERSON was later convicted following a new trial .","The applicant appealed against his conviction and sentence to ORG with the leave of the Single Judge . He contended before ORG that the trial judge should have heard evidence on the voire dire since he had been informed by counsel that the applicant was afraid to give evidence .","The applications for disclosure and ORG during the appeal proceedings","During the course of the proceedings on appeal , the applicant and PERSON applied for disclosure of certain specific and identified documents , in particular the schedule of ORG activities as a police informant . The Government point out that the applicant \u2019s application as framed did not appear to have been an application for all material in possession of the police or the prosecution in relation to PERSON \u2019s history as an informant .","ORG ruled on DATE that the applicant and PERSON were entitled to full disclosure in relation to PERSON \u2019s history as an informant , \u201c save that ORG dated DATE be disclosed in edited form . \u201d The latter document was included in the original ORG application to the trial judge and was covered by ORG immunity in its entirety . However , the prosecution indicated that it was prepared to disclose the content of this document in an edited format . ORG approved this proposal . The prosecution also disclosed a further CARDINAL extracts from pocketbook entries of police officers . This information had already been served on the defence in the form of intelligence \/ information reports at the original trial , with the approval of the judge .","The applicant can not confirm whether any or all of the materials at issue were the subject of the trial judge \u2019s order . The applicant does confirm that the documents listed in ORG order were disclosed to his lawyers , but did not extend to the further material which the applicant sought . It is the applicant \u2019s understanding that a further disclosure order was made by ORG in relation to documents sought by PERSON , and specified as extending to the applicant , but that no documents were disclosed to the applicant .","The issues relating to ORG activities as an informant were again raised by the applicant in applications dated CARDINAL DATE and CARDINAL DATE to amend and supplement the applicant \u2019s original grounds of appeal . The original schedule of informing was appended to the application of DATE . The application dated CARDINAL DATE stated that full disclosure had not yet been given in accordance with ORG order of DATE . The application further noted that the prosecution had claimed ORG at the trial and that \u201c it is believed that [ ORG ] will be asked by the Prosecution to consider that much of this evidence requested by [ the applicant ] in this case should not be disclosed . \u201d The applicant invited ORG to reconsider the material that the trial judge had decided should not be the subject of disclosure , and to ask itself whether the judge had exercised his discretion properly in relation to disclosure of material which might have assisted the defence , in particular in relation to a schedule of informing concerning PERSON used at the trial . The application of CARDINAL DATE also invited ORG to have regard to whether or not the requirements of LAW had been complied with in his case as regards the issues of the judge \u2019s failure to hear evidence on the voire dire and non - disclosure of evidence .","On DATE the prosecution gave written notice to the accused \u2019s lawyers that the ORG intended to make an ex parte application on notice to ORG . The letter stated that the ORG were not able to disclose the category or categories into which the documentation would fall . The Government point out that the application for ORG in ORG was identical to that made to the trial judge save that ORG was disclosed during the appeal proceedings , albeit in edited form .","On DATE ORG , following an ex parte hearing , granted the ORG \u2019s application in full , including the editing of ORG and the editing of various passages from the supporting source documentation . The order of ORG dated CARDINAL DATE contained the following statement : \u201c ORG properly claimed in relation to disclosure \u201d .","The applicant states that his lawyers only became aware that the prosecution had made an ex parte application when they arrived outside the courtroom at TIME on DATE for a CARDINAL hearing and were informed that they could not go into the court because a ORG hearing was being conducted in respect of their case . The applicant does not know which documents were covered by ORG ruling of CARDINAL DATE .","The outcome of the appeal","ORG refused the applicant leave to amend his grounds of appeal in order to raise arguments based on LAW .","On DATE ORG , following a hearing , dismissed the applicant \u2019s appeal against conviction and sentence .","In delivering the judgment of ORG , Lord PERSON expressed the view that no evidence called on behalf of the applicant on the voire dire could have been of any possible assistance to the defence and might , had the applicant \u2019s account of intimidation been subjected to cross - examination , been of positive disadvantage to the defence . He considered that the trial judge was under no obligation to hear evidence on the voire dire regarding the applicant \u2019s fear of reprisal . Lord Justice Rose then stated :","\u201c At the close of the prosecution case , it is common ground that the judge had , in accordance with section CARDINAL(CARDINAL ) , satisfied himself , in the presence of the jury , that the accused knew that he could give evidence , and , if he chose not to give evidence , or , having been sworn , refused to answer particular questions , without good cause , it would be permissible for inferences adverse to his case to be drawn . The warning of risk was heard by [ the applicant ] , as well as by the members of the jury . That warning having been given , [ the applicant ] ( advised by leading counsel ) indicated that he would not be giving evidence .","In our judgment , the fact that at a subsequent stage the judge gave a ruling entirely in accordance with what was to be anticipated , by virtue of the risk to which he had expressly drawn [ the applicant \u2019s ] attention , does not change the position adversely to the interests of the defendant . The reality is that [ the applicant ] knew , from the time of the judge \u2019s warning at the close of the prosecution case , of the risk that a direction would be given permitting adverse inferences to be drawn , and in the light of that knowledge and of the advice which he was given , he decided to take his chance and not give evidence . In our judgment , the subsequent ruling can not be regarded as having in any way impinged on the safety of his conviction . \u201d","As to the applicant \u2019s further contention that he was not advised that he could give evidence and not answer particular questions , Lord Justice PERSON referred to what the trial judge had said in relation to section CARDINAL(CARDINAL ) of LAW .","On DATE ORG refused the applicant leave to appeal to ORG .","The interpretation given by the domestic courts to LAW DATE as well as the specimen direction applicable at the relevant time are described in the ORG \u2019s Condron v. the GPE judgment ( no . CARDINAL , ECHR CARDINAL-V ) and PERSON v. the GPE judgment ( no . CARDINAL\/CARDINAL , DATE ) .","Domestic law and practice at the material time on the prosecution \u2019s duty of disclosure of material to the defence and the circumstances in which such material can be withheld for reasons of public interest immunity are described in the ORG \u2019s PERSON and PERSON v. the GPE judgment ( [ ORG ] , no . CARDINAL , ORG CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79215","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2007,"docname":"CASE OF ESKI v. AUSTRIA","importance":3,"conclusion":"No violation of Art. 8","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE . DATE he lived together with GPE On DATE PERSON gave birth to a daughter , PERSON , of whom the applicant is the father .","In DATE the couple split up and GPE went to live with her daughter in PERSON . The applicant stayed in PERSON during DATE and DATE and then returned to GPE .","On DATE the applicant , while visiting his daughter , threatened and injured GPE , who subsequently refused him access to M.","On DATE the applicant applied to the Linz - Land District Court ( Bezirksgericht ) seeking visiting rights in respect of his daughter . On DATE the district court heard evidence from the applicant and GPE On DATE a visit took place . On DATE the applicant and PERSON concluded a visiting agreement , under the terms of which visits were to take place on the LOC of a youth centre in the presence of GPE","On DATE , at GPE 's request and with the approval of ORG ( ORG ) attached to GPE ( Bezirkshauptmannschaft ) , GPE withdrew the applicant 's visiting rights . It noted that , at the first arranged visit on DATE , the applicant had insulted PERSON and told PERSON that her mother was an evil witch and a whore . PERSON had subsequently suffered from anxiety , sleep disturbances , gastro - intestinal problems and pneumonia . The court further noted that even before the visiting agreement had been concluded , the arrangements for and exercise of the applicant 's visiting rights had been complicated by the applicant 's constant aggression towards GPE The court found that the repeated threats against her mother were seriously jeopardising PERSON 's mental development . Accordingly , the applicant 's visiting rights were not in the best interest of the child ; on the contrary , they were harmful to her mental and physical well - being .","On DATE ORG ( PERSON ) upheld this decision .","NORP In DATE PERSON started cohabiting with her new partner , PERSON They married in DATE .","Another contact visit between the applicant and his daughter took place during DATE .","On DATE and DATE the applicant again lodged applications for visiting rights with PERSON . He further stated that he objected to the possible adoption of PERSON by PERSON","On DATE the Linz - Land District Court rejected the applications . It noted that the applicant 's visiting rights had been withdrawn and that the applicant had not submitted any arguments to suggest that the circumstances upon which that decision had been based had changed . The decision became final .","On DATE PERSON instituted proceedings with FAC seeking to adopt PERSON requested that the court overrule the applicant 's refusal to give the required consent .","NORP The district court summoned the applicant to a hearing scheduled for DATE . In written submissions of CARDINAL DATE the applicant informed the court that he had not changed his attitude towards the adoption request and still objected to adoption . A hearing was therefore not necessary . He added that the letter should be regarded as his submissions in the case . In further submissions to ORG , the applicant filed a motion accusing judge PERSON , the competent judge of GPE , of bias , and reiterated his request for visiting rights .","The district court subsequently informed the applicant that a hearing in the adoption proceedings was necessary and that any unexcused absence was punishable by a pecuniary penalty ( Ordnungsstrafe ) . On DATE the applicant informed the court that he was unable to attend the hearing scheduled for DATE , as he was attending lectures at ORG . He further referred to his motion accusing judge ORG of bias , and submitted that his case would not be given objective consideration . He could , however , agree to another date under different circumstances .","On DATE the President ( Vorsteher ) of the Linz - Land District Court dismissed the applicant 's motion accusing judge ORG of bias . On DATE ORG upheld this decision . It noted that the applicant had referred to a statement made by judge PERSON during a hearing in DATE in the proceedings concerning the withdrawal of his access rights in respect of PERSON However , the applicant had not complained at the time of any alleged bias on the part of the judge . The motion had therefore been submitted out of time . On DATE the President of the Linz - Land District Court rejected a further motion by the applicant accusing judge ORG of bias , for the same reasons .","Meanwhile , on DATE , the applicant gave evidence to ORG in GPE under letters rogatory . At the hearing he argued that he had developed a close relationship with his daughter in DATE . He had not lost interest in his daughter and still wished to obtain visiting rights . However , PERSON had sought to prevent any contact . In further written submissions to the court he argued that he did not know PERSON , who had no family ties with his daughter . His daughter 's alleged psychological problems had been caused by her mother , who herself had similar problems .","On DATE the Linz - Land District Court heard evidence from PERSON , PERSON and GPE On DATE the court , with the approval of ORG attached to GPE , overruled the applicant 's refusal to give consent and granted PERSON permission to adopt PERSON It noted that PERSON had developed a close relationship with PERSON , who had said she was in favour of the adoption as she regarded PERSON as her father . The adoption would secure PERSON 's position within the family and also act as a material safeguard , as PERSON was able to support her financially . With regard to the applicant , the court found that his allegedly close relationship with PERSON did not correspond to reality . The last contact visit , during DATE , had been disappointing for the child , as the applicant had taken no initiatives , had not complied with the child 's wishes for a special DATE present and , during dinner , had not spoken with the child for DATE . In the past the applicant had repeatedly tried to interfere in the relationship between PERSON and her mother , causing PERSON to develop physical and psychological problems . He had not made any effort to prove his feelings for PERSON in practice . Furthermore , he had not made maintenance payments for DATE . The court therefore considered that the applicant 's objection to the adoption was unjustified .","The applicant appealed against this decision . He complained that the lack of a public oral hearing in the presence of his daughter , PERSON and PERSON was contrary to LAW . He had not been able to put questions to PERSON and PERSON or challenge the criticism made of him in several reports by the social - welfare authorities . In particular , no evidence had been heard from him concerning the accusation that he had told PERSON that her mother was an evil witch and a whore . He further complained that the court had not instructed him to request an opinion from an expert in child psychology . He was of NORP origin , and adoption in these circumstances was tantamount to a denial of CARDINAL of the child 's genetic background . Furthermore , without an expert opinion there was nothing to substantiate the courts ' findings that he had caused PERSON 's physical and psychological problems . The court should also have instructed him to request that evidence be heard from the social workers who had submitted negative reports about him . Instead , it had based its findings on their written submissions . Finally , the applicant contended that there were not sufficient reasons for PERSON 's adoption . PERSON could instead request joint custody with the child 's mother and undertake to make maintenance payments on a contractual basis . The applicant 's visiting rights had been withdrawn only temporarily and he had not failed to make efforts to keep in contact with PERSON had been paying maintenance for PERSON for DATE .","On DATE ORG dismissed the applicant 's appeal . It found that , even in the absence of an oral hearing in the presence of all the parties , which in the proceedings at issue was not obligatory , the applicant had been given a proper hearing for the purposes of LAW . In that regard it noted in particular that FAC had made several attempts to hear evidence from the applicant ; this had eventually been possible only by issuing letters rogatory to another court . The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings , that his personal appearance before the district court was not necessary and that the letter to that effect should be regarded as his personal statement . Moreover , the applicant had had sufficient opportunity to comment in written submissions , namely in the appeal proceedings , on the accusations made against him . The court further considered that it had not been necessary to seek an expert opinion or to hear evidence from the social workers concerned . In this regard it noted that the regional court had already confirmed the applicant 's aggressive behaviour and its consequences in its decision of DATE , and had rejected the applicant 's arguments to the contrary . Nor had the applicant , in his present appeal , been able satisfactorily to show that his conduct had not been the reason for the child 's problems . The district court had given sufficient and extensive reasons why the adoption should be authorised , namely by referring to the applicant 's conduct . Finally , the regional court noted that the fact that PERSON was in a better financial position than the applicant had not been a reason for granting the adoption . Accordingly , it did not go into the applicant 's arguments regarding the maintenance payments . It refused the applicant leave to lodge an ordinary appeal with ORG ( Oberster Gerichtshof ) . This decision was served on the applicant 's counsel on DATE .","Article CARDINALa of LAW ( Allgemeines B\u00fcrgerliches Gesetzbuch ) provides that adoption requires a written contract between the person seeking the adoption and the person to be adopted in addition to authorisation by a court .","Pursuant to LAW , the court may not authorise an adoption if the parents of a minor child have not given their consent to the adoption .","Article CARDINAL \u00a7 CARDINAL provides that , at the request of CARDINAL of the parties , the court may overrule the refusal of consent by the parent of a minor child , where the person concerned has not given justifiable reasons for his or her refusal .","LAW , which is binding on several of ORG Member States , including GPE , provides as follows :","\u201c CARDINAL . Subject to paragraphs CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :","( a ) the consent of the mother and , where the child is legitimate , the father ; or if there is neither father nor mother to consent , the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect ;","( b ) the consent of the spouse of the adopter .","NORP The competent authority shall not :","a ) dispense with the consent of any person mentioned in paragraph CARDINAL of this article , or","b ) overrule the refusal to consent of any person or body mentioned in the said paragraph CARDINAL , save on exceptional grounds determined by law .","NORP If the father or mother is deprived of his or her parental rights in respect of the child , or at least of the right to consent to an adoption , the law may provide that it shall not be necessary to obtain his or her consent . \u201d","In its ORG on principles concerning the establishment and legal consequences of parentage of DATE , ORG on Family Law states as follows :","Principle CARDINAL :","\u201c CARDINAL . An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn : \u00ad the consent of the mother \u00ad the consent of the father .","States may also require the consent of the child considered by the internal law as having sufficient understanding .","The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent can not be obtained , in particular if the whereabouts of the mother or of the father or of both is unknown and they can not be found or are dead .","The competent authority may overrule the refusal to consent of any person mentioned in paragraph CARDINAL only on exceptional grounds determined by law . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80613","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF DUNAYEV v. RUSSIA","importance":3,"conclusion":"Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in LOC .","The applicant instituted civil proceedings in GPE , QUANTITY from his place of residence . He sued ORG and ORG in connection with military operations in GPE in DATE . He claimed , in particular , that his property , including his flat , had been destroyed during an attack by federal forces on the centre of ORG in DATE and sought compensation for pecuniary damage . The applicant submitted that the damage had been inflicted as a result of the use by the ORG of hazardous devices ( \u0438\u0441\u0442\u043e\u0447\u043d\u0438\u043a \u043f\u043e\u0432\u044b\u0448\u0435\u043d\u043d\u043e\u0439 \u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438 ) , namely weapons and military equipment , and that he was therefore entitled to compensation under the relevant provision of law without having to prove that the defendant had been at fault . The applicant also stated that he had endured mental suffering when forced to live in the zone of active military action , and claimed compensation for non - pecuniary damage on that account .","On DATE ORG of GPE ( \u201c the ORG \u201d ) examined the applicant 's claims . It acknowledged that the applicant 's property had been destroyed as a result of an attack in DATE , but noted that the applicant had failed to prove that his possessions had been damaged by NORP federal troops rather than by rebel fighters , as both parties to the conflict had used weaponry and ammunition of the same standard . The court also noted that under ORG and QUANTITY of LAW of GPE the ORG was only liable in damages for the unlawful acts of its agents . It further held that the military operations in GPE had been launched by presidential and governmental decrees which had been held to be constitutional by ORG and were still in force . Accordingly , the court concluded that the actions of the NORP federal troops in GPE were lawful and dismissed the applicant 's claim for compensation for pecuniary and non - pecuniary damage .","On DATE the applicant lodged a preliminary notice of appeal ( \u043f\u0440\u0435\u0434\u0432\u0430\u0440\u0438\u0442\u0435\u043b\u044c\u043d\u0430\u044f \u043a\u0430\u0441\u0441\u0430\u0446\u0438\u043e\u043d\u043d\u0430\u044f \u0436\u0430\u043b\u043e\u0431\u0430 ) in which he requested the appellate court to quash the judgment and remit his case for fresh consideration . He also expressed his intention to adduce detailed arguments after acquainting himself with the text of the transcript of the first - instance hearing and obtaining a full copy of the judgment . Thereafter the applicant left for his place of residence .","In a letter of DATE ORG informed the applicant that he could obtain a full copy of the judgment of DATE and access to his case file at the court registry .","On DATE the applicant applied in writing to ORG for a copy of the transcript of the hearing on DATE , and a document that had been adduced by the defendants at the hearing . According to the applicant , he never received a response to his request .","On DATE the applicant sent another request to ORG , which also remained unanswered .","In a letter of DATE ORG forwarded a copy of the judgment of DATE to the applicant and notified him that a hearing of his appeal was scheduled for DATE . The applicant received this letter on DATE .","On DATE the applicant prepared detailed appeal submissions ( \u043a\u0430\u0441\u0441\u0430\u0446\u0438\u043e\u043d\u043d\u0430\u044f \u0436\u0430\u043b\u043e\u0431\u0430 ) , in which he claimed that the first - instance court that the defendants had not adduced any evidence capable of refuting his arguments and that therefore the judgment of DATE was unfounded and should be quashed . He further reiterated that his property had been destroyed during an attack in DATE , and that under national law he was entitled to compensation for pecuniary damage . He also stated that he had endured mental suffering when forced to live in the zone of active military action , and therefore had the right to compensation for non - pecuniary damage . The applicant further argued that once ORG had established that his property had , in fact , been destroyed , it should have indicated who was liable to compensate him for that damage . He claimed in this respect that since the military operations in GPE had been launched by ORG , it was the ORG which should compensate him for his losses . The applicant also insisted that during the military operations the ORG had used hazardous devices , namely heavy artillery and other indiscriminate weapons , and that under national law he was absolved of any obligation to prove that the damage had been caused by the defendants ' fault .","At the end of his appeal submissions the applicant provided a list of the documents lodged , namely , CARDINAL copies of his detailed appeal submissions of DATE , a copy of the preliminary notice of appeal dated DATE , a copy of ORG judgment of DATE , a motion to exempt the applicant from payment of the court fee , a copy of a certificate indicating the inflation rate in GPE for DATE and a copy of the summons for the appeal hearing as well as the envelope in which it had been sent marked with the date of receipt .","According to the applicant , TIME before the court hearing on DATE , he attempted to file his detailed appeal submissions and to gain access to his case file at the registry of ORG ( \u201c the ORG \u201d ) , but was not allowed to do so . He then attempted to lodge his detailed appeal submissions at the hearing , but the presiding judge refused .","The Government referred to information provided by ORG that the applicant 's appeal of DATE had been accepted and examined by ORG . They did not indicate the date on which the applicant 's appeal had been received and registered by ORG registry .","By a decision of CARDINAL DATE ORG upheld the judgment of DATE . The applicant attended the hearing and presented his arguments . ORG held that the conclusions of the court below were correct and well - founded , since the applicant had not adduced any evidence that the actions of the NORP federal troops within the territory of GPE were unlawful or that the alleged damage had been caused by them rather than by rebel fighters . It went on to address the applicant 's argument that the weapons used were hazardous devices and that the damage should therefore be compensated irrespective of the question of fault . ORG noted that this argument could not constitute a ground for quashing the judgment at first instance , as according to a decision of the Plenary of ORG of GPE , firearms could not be regarded as a hazardous device so that a claim for compensation for the damage caused by the shooting would only lie if the defendant was at fault . It concluded :","\u201c The arguments advanced in the appeal do not point to any circumstances which have not been examined by the [ first - instance ] court or which could rebut the conclusions of the judgment . They seek to re - evaluate the adduced evidence and can not serve as a basis for quashing the judgment . \u201d","On DATE the applicant sent a letter to the President of ORG , complaining about the court 's refusal to examine the detailed appeal submissions he had given to the presiding judge at the court hearing on DATE and requesting that the appeal be registered and a copy of the court 's decision of CARDINAL DATE forwarded to him .","In a letter of DATE ORG sent a copy of the requested decision to the applicant without further explanation .","NORP In order to be able to assess the merits of the applicant 's complaint , the Court invited the Government at the admissibility stage to submit documentary evidence to clarify whether the applicant 's detailed appeal submissions had been received and registered by ORG .","In reply , the ORG submitted a copy of the applicant 's preliminary notice of appeal of DATE and of his detailed appeal submissions of CARDINAL DATE .","The first document , which is dated and signed by the applicant , bears the stamp of ORG of GPE together with a reference number and DATE of DATE . There are also a number of handwritten notes , dates and signatures on the document which make it clear that it was sent to , and received by , ORG .","NORP The copy of the applicant 's detailed appeal submissions , which is dated and signed by the applicant , contains no official stamps or dates to indicate whether they were received by ORG and , if so , on what date . The list of the enclosures at the end of the document has been crossed out and the word \u201c refused \u201d has been inserted by hand nearby . The date of this \u201c refusal \u201d is missing , but the signature is very similar to that of the presiding judge on a copy of the appeal decision of DATE .","Article CARDINAL enshrined the right of any party to a dispute and of other participants in proceedings to appeal against a first - instance judgment .","Article CARDINAL provided that , as a rule , an appeal should be brought through the first - instance court that delivered the judgment . However , the fact that an appeal was lodged directly with an appellate court should not preclude the latter from examining it .","By virtue of LAW , an appeal could be lodged within DATE after the first - instance judgment was finalised .","Article CARDINAL laid down a number of formal requirements for lodging an appeal . In particular , the notice of appeal had to indicate the court to which it was addressed , the name of the person lodging it , the judgment being appealed against and the court which had delivered that judgment , the grounds of appeal and the list of documents enclosed with the appeal . An appellant could not refer to new evidence which had not been before the first - instance court unless he or she could substantiate that it had been impossible to adduce that evidence at first instance .","Article CARDINAL secured the right of the other party to the dispute to submit written pleadings in reply to an appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100139","languageisocode":"ENG","respondent":"HUN","branch":"COMMITTEE","date":2010,"docname":"CASE OF GYARFAS AND HUNAUDIT KFT. v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Andr\u00e1s Saj\u00f3;Kristina Pardalos","text":["The applicant was born in DATE and lives in GPE .","On DATE the predecessor of the second applicant , represented by the first applicant , filed an action for damages against a company before ORG . On DATE ORG ordered intermission of the proceedings for DATE at the joint request of the parties . On DATE the plaintiff requested continuation of the proceedings and extended its action to involve another respondent .","On DATE ORG delivered a judgment dismissing the action .","NORP On appeal , on DATE ORG appellate bench quashed the first instance judgment and remitted the case to ORG .","On DATE the plaintiff extended the action to include a claim of invalidity of a contract . On DATE the plaintiff stated its intention to extend the action to involve further respondents including a company based in GPE . It was therefore instructed to advance the costs of translation but complied with this order only on DATE .","On DATE ORG held a hearing and delivered a judgment dismissing the action . The plaintiff appealed on DATE .","On DATE the plaintiff was struck out of the register of companies and ceased to exist as a legal entity . Its successor was the second applicant . However , neither itself nor its attorney , the first applicant , informed the courts or the parties of this fact .","On DATE ORG quashed the first instance judgment for deficient facts and remitted the case .","In the resumed proceedings , a respondent notified ORG on DATE that the plaintiff had been struck out of the register of companies . On DATE the first applicant , representing the second one , declared that he could not make a statement on the legal succession of his client . He was ordered to do so within DATE . On DATE he informed the court that , by way of a deed of cession , the successor of the plaintiff was his own mother , a pensioner eligible for exemption from court fees .","At the hearing of DATE the first applicant produced a contract of DATE by which part of the claims of the original plaintiff had been ceded to himself . He also submitted another document of DATE by which he had further ceded some of those claims to his mother . He stated that he wished to enter the proceedings as party .","On DATE the Head of ORG of ORG informed the President of ORG of the first applicant 's conduct , deemed profoundly unethical . The applicant was subsequently reprimanded .","On DATE the parties were heard as to the first applicant 's claim to become a plaintiff . On DATE the first applicant was granted leave to become a plaintiff in the proceedings . However , on the respondents ' appeal against the leave , ORG quashed the order on DATE .","On DATE ORG declared interruption of the proceedings on the ground that the plaintiff had ceased to exist . On DATE the court quashed this order finding that the second applicant was the legal successor . On DATE the first applicant stated that he did not wish to become a party to the proceedings . However , on CARDINAL DATE he stated that he nevertheless joined the proceedings .","On DATE ORG delivered a judgment dismissing the applicants ' action . On appeal , ORG held a hearing on DATE and delivered a judgment on CARDINAL DATE upholding in essence the first - instance .","On DATE ORG delivered a judgment dismissing the applicants ' petition for review and upholding the judgment of ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59160","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":2000,"docname":"CASE OF CILIZ v. THE NETHERLANDS","importance":1,"conclusion":"Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Elisabeth Palm","text":["The applicant came to the GPE on DATE where he married a NORP woman on DATE . Upon his request he was granted a residence permit by the head of the GPE police on DATE which enabled him to live with his spouse and to work in the GPE . This residence permit was valid for DATE and , on CARDINAL DATE , the applicant was given a document showing that as a result of his marriage he was allowed to reside in the GPE indefinitely .","On DATE , a son , PERSON , was born to the applicant and his wife .","The applicant and his wife separated in DATE and divorce proceedings were initiated . As the applicant 's right to reside in the GPE indefinitely had been dependent on his being married and cohabiting with his spouse , he lost this right ex jure from the moment of separation . On DATE , the applicant applied for and was granted an independent residence permit in order to work in the GPE pursuant to the relevant provisions of LAW ( Vreemdelingencirculaire ; see paragraphs CARDINAL below ) . This permit was valid for DATE .","In the period immediately following the separation the applicant made no attempt to see PERSON , but at a later stage he requested ORG ( ORG ) to establish an arrangement concerning parental access ( omgangsregeling \u2013 \u201c formal access arrangement \u201d ) . ORG requested ORG ( PERSON ) to investigate the feasibility of such an arrangement .","NORP In its report of DATE , ORG stated that after an initial refusal to cooperate in a formal access arrangement , the mother had agreed for the applicant to meet PERSON several times on a provisional basis at the maternal grandparents ' house but that the applicant had failed to contact the Board . ORG concluded that the applicant 's situation had not become sufficiently clear and for this reason the ORG found that a formal access arrangement would not be appropriate .","The applicant requested a prolongation of his residence permit in order to work in the GPE from the head of the GPE police on DATE . At this time the applicant was in receipt of unemployment benefits and for this reason his request was rejected on DATE . As regards LAW , the head of the GPE police considered , inter alia , that since it appeared that the applicant had no regular contacts with his son there was no family life between them within the meaning of this provision . In this respect it was held that the applicant 's claim that it was not his fault that no regular contacts took place could not be taken into account , since regard could only be had to the factual situation . Furthermore , even assuming there was family life between the applicant and his son , an interference with the right to respect for this life would , according to the head of the GPE police , be justified under paragraph QUANTITY of Article CARDINAL .","The applicant requested the ORG Secretary for ORG ( ORG ) on DATE to review ( herzien ) the decision of the head of the GPE police . He submitted that he was in the process of obtaining a permanent employment contract . He conceded that at present the contacts with PERSON had not yet been regularised but that ORG of GPE was expected to examine and to grant a request for a formal access arrangement shortly afterwards .","The applicant 's marriage was officially dissolved on DATE .","On DATE , the applicant was heard by ORG for Aliens ' Affairs ( PERSON voor ORG ) . The applicant stated that since DATE he had visited PERSON CARDINAL times a week .","ORG proposed to the ORG Secretary for ORG that the applicant 's request for revision be rejected . Even though it considered that there was family life between the applicant and PERSON and that the refusal to grant the applicant continued residence in the GPE would constitute an interference with the applicant 's right to respect for his family life , ORG held that this interference was justified for the protection of the economic well - being of the country . In this respect ORG considered that the applicant was in receipt of unemployment benefits . Although it might be true that these benefits would be withdrawn in view of the applicant 's contract as a stand - by employee in the clothing industry , ORG did not regard these activities as serving an essential national interest since it had appeared that on the GPE labour market other people , having priority over the applicant , were available for this kind of work .","ORG further took into account that the applicant had only lived with PERSON for DATE , that he saw PERSON irregularly and briefly , and that he contributed irregularly to the costs of PERSON 's upbringing and education .","In line with the opinion of ORG , the ORG Secretary for ORG rejected the applicant 's request for revision on DATE .","The applicant filed an appeal against the decision of DATE with ORG ( ORG ) of ORG sitting in GPE ( nevenzittingsplaats GPE ) on DATE . He submitted , inter alia , that contrary to what ORG had held , he had an intense relationship with PERSON .","Meanwhile , following a hearing on DATE , ORG on DATE appointed the applicant 's former wife as guardian ( voogdes ) and the applicant as auxiliary guardian ( toeziend voogd ) of PERSON . It further ordered that as a contribution to the costs of the maintenance and education of PERSON , the applicant should pay to the mother any child benefits he might receive under the statutory regulations . In view of the circumstances and the relationship between the parties ORG found it inappropriate , however , to lay down in a formal access arrangement the varying contacts which the applicant was having with PERSON at that time . ORG assumed in this respect that the contacts which the applicant had had and was still having with PERSON would be continued in the future ; it added that , as part of the upbringing of the child , it was incumbent on the mother to ensure that these contacts between father and child took place .","The applicant filed an appeal with ORG ( ORG ) against the decision of ORG not to establish a formal access arrangement . A hearing took place on DATE , during which the applicant 's former wife stated that she was not willing to cooperate in a formal access arrangement , since she felt that the applicant only wished to have such an arrangement established in order to obtain a right to reside in the GPE . Furthermore , she did not believe that the applicant was capable of maintaining regular contacts with PERSON and submitted that irregular contacts would not be conducive to the boy 's well - being .","On DATE , a hearing took place before ORG sitting in GPE on the appeal filed by the applicant against the rejection of his request for revision of the decision not to prolong his residence permit . ORG rejected the appeal by decision of CARDINAL DATE . It held that the refusal to grant the applicant continued residence in the GPE constituted a justified interference with his family life . ORG considered in this respect , inter alia , that ORG had rejected the applicant 's request to establish a formal access arrangement . It found , furthermore , that the contacts between the applicant and PERSON were irregular and short and that the applicant did not contribute regularly to the costs of his son 's maintenance and education . ORG further held that the economic well - being of the country should be taken into account as well . It noted that the applicant had submitted an employment contract from which it appeared that his probationary period had not yet been concluded and that , in any event , there was a sufficient amount of work force with priority over the applicant available on the GPE labour market for the kind of work the applicant was employed to do .","When this decision was sent to the applicant , that is , on DATE , the applicant 's probationary period had come to an end and he was in possession of a contract of employment for an indefinite period .","As regards the applicant 's request for the establishment of a formal access arrangement , ORG decided in an interlocutory judgment of DATE to adjourn these proceedings . The ORG found that at the present time there was insufficient reason to deny the applicant right of access to his son . As it was not clear to what extent the applicant was genuinely interested in ORG requested ORG to organise a number of supervised trial meetings between the applicant and PERSON in order to have the applicant 's motives clarified .","On DATE , the applicant was informed that ORG had further adjourned the proceedings until DATE in view of the heavy workload of ORG . By letter of DATE , the applicant asked ORG whether a different organisation might be appointed to organise the trial meetings as he wished to see PERSON and a further delay would be detrimental to both the applicant and the child .","On DATE , the applicant was placed in detention with a view to his expulsion ( vreemdelingenbewaring ) .","On DATE , the applicant again requested a residence permit in order to work in the GPE , to be able to be with his child and for reasons of a compelling humanitarian nature . On this occasion he told the head of police that as of DATE he had stopped contributing financially to his son 's maintenance since his former wife no longer allowed him to see PERSON .","The first trial meeting between the applicant and PERSON , organised by ORG , took place on DATE at the offices of this organisation . Since the applicant was still in detention , he was accompanied by CARDINAL police officers who observed the meeting between the applicant and PERSON from a different room .","On DATE , the applicant 's representative contacted the officer of ORG who had also been present at the meeting between the applicant and his son . In the opinion of this officer , the meeting had gone well given the circumstances under which it had taken place . Although father and son initially had had to re - accustom themselves to being together , it had been clear that PERSON knew his father and was familiar with him . After the meeting PERSON had spontaneously gone to the window to wave to the applicant . The officer submitted as her opinion that another trial meeting should be organised by ORG , perhaps in the presence of a psychologist , following which the possibility of a supervised access arrangement should be considered .","The applicant 's request of CARDINAL DATE for a residence permit was rejected by the ORG Secretary for ORG on DATE . The ORG Secretary held that no relevant new facts had been adduced by the applicant . On the basis of the information submitted by the police officers who had observed the meeting between the applicant and PERSON on DATE , the ORG Secretary considered furthermore that it had not appeared that the relationship between the applicant and his son at the present time was meaningful , mutual or anything more than shallow and neither was it realistically foreseeable that a closer relationship would develop .","The applicant filed an objection ( bezwaar ) against the refusal of a residence permit with the ORG Secretary for ORG on DATE . He submitted , inter alia , that proceedings concerning access to his son were still pending before ORG and that the trial meeting which had been ordered by ORG on DATE had only taken place as late as CARDINAL DATE . Given the fact that at that time the applicant had been in detention , it was unreasonable to expect that this meeting between the applicant and PERSON would give a true impression of the nature of the relationship between them . The applicant also requested an interim measure from the President of ORG sitting in GPE .","The applicant was expelled to GPE on DATE .","On DATE the President of ORG rejected both the objection which the applicant had filed against the refusal of a residence permit and the request for an interim measure .","The appeal proceedings concerning the formal access arrangement before ORG were adjourned for some time and finally continued in the absence of the applicant who had not been granted an entry visa in order to attend either more trial meetings or the hearing before ORG . On DATE ORG confirmed the decision of ORG not to lay down a formal access arrangement ( see paragraph CARDINAL above ) . Having regard to the report of ORG of DATE ( see paragraph CARDINAL above ) , the fact that PERSON and his father had not seen each other since DATE , that it had not been possible for the trial meetings \u2013 except for the CARDINAL of CARDINAL DATE to take place within a reasonable time , the uncertainty as to whether the father would come to the GPE and stay there temporarily , the continued doubt as to whether the father was capable of maintaining regular contacts with PERSON and the continuing tension in respect of the father 's uncertain situation , ORG considered that such an arrangement would be contrary to the compelling interests of the child .","The applicant lodged an appeal on points of law against this decision with ORG ( PERSON ) which was rejected on DATE .","Meanwhile , on DATE , the applicant re - entered the GPE with a visa valid for DATE . He submitted a new application for a formal access arrangement to ORG on DATE , arguing that there had been a change of circumstances since the decision of ORG of CARDINAL DATE ( see paragraph CARDINAL above ) in that he was currently in the GPE and had employment . Following a hearing on DATE , during which PERSON 's mother stated that the boy did not want to see the applicant , ORG requested ORG to examine whether it would be in PERSON 's best interests to be brought into contact with his father .","On DATE ORG rejected the applicant 's request for a formal access arrangement and denied him the right of access to his son . It noted the conclusion reached by ORG , after another trial meeting had taken place , to the effect that the interests of the child militated against access since PERSON had displayed strong opposition to the idea and the applicant had not proved able to overcome this opposition . The applicant has lodged an appeal against this decision , which proceedings are currently still pending .","Under section CARDINAL ) of LAW ( Vreemdelingenwet ) residence permits granted for a specific purpose , such as family reunification or family formation , can be granted subject to restrictions relating to that purpose . If the purpose for which the permit was granted is no longer complied with , the residence permit may be revoked pursuant to section ORG ) of LAW , and prolongation may be refused pursuant to section GPE ) of the Act on grounds relating to the public interest . An alien who has been granted entry to the GPE but is not or is no longer eligible for admission is under an obligation to leave the country pursuant to section CARDINAL(d)(CARDINAL ) . If he or she does not leave voluntarily , expulsion may follow ( section CARDINAL ) .","NORP The GPE authorities pursue a restrictive immigration policy in view of the high population density . Admission is only granted on the basis of treaty obligations , if the individual 's presence serves an essential national interest or if there exist compelling reasons of a humanitarian nature . This policy is laid down , inter alia , in the \u201c Circular on Aliens \u201d ( Vreemdelingencirculaire \u2013 \u201c the Circular \u201d ) : a body of directives drawn up and published by ORG .","At the relevant period , the requirements for admission of aliens for the purpose of family reunification and family formation , and for continued residence after separation , were laid down in LAW of FAC . Aliens married to either a GPE national , a recognised refugee or a holder of a permanent residence permit ( vestigingsvergunning ) acquired , after DATE of legal residence , ex jure an indefinite right to remain pursuant to section ORG ) of LAW . This right expired ex jure when the spouses no longer cohabited .","Pursuant to Article CARDINAL paragraphs ( a ) and ( d ) of LAW PERSON of FAC an alien whose marriage had lasted for DATE before it broke down could be granted DATE residence from DATE of the de facto breakdown of the marriage , subject to the restriction \u201c for the purpose of finding work , in paid employment or self - employed \u201d . During DATE , dependence on social security or unemployment benefits would not be held against the alien . When assessing an application for a subsequent prolongation of the residence permit , the authorities had to determine whether the person concerned was in paid employment or was self - employed , and would continue to be so for DATE , regardless whether this durable income was obtained from work in a sector where there were sufficient nationals of ORG member GPE or aliens residing lawfully in the GPE available to fill all vacancies . Where no such employment existed for DATE , the right of continued residence would be denied . Employment found subsequently would not change that decision unless that work served an essential national interest .","Respect for family life as enshrined in LAW constitutes one of the treaty obligations which may lead to the granting of admission or continued residence ( see paragraph CARDINAL above ) . Article CARDINAL.CARDINAL of Chapter BCARDINAL of FAC provided in this respect that where an alien was not eligible for ( continued ) residence on the basis of the applicable rules , the question whether a refusal of ( continued ) residence was in accordance with LAW should always be examined . Similarly , LAW of FAC stipulated that in the decision whether or not to grant continued residence , regard should be had to the individual 's family life within the context of LAW .","Article CARDINALa of Book CARDINAL of LAW ( PERSON ) regulates access between a child and the parent who was not awarded parental responsibility following the divorce , as well as the grounds on which access can be denied . This provision , in so far as relevant , reads as follows :","\u201c CARDINAL . A child and a parent on whom parental responsibility has not been conferred shall have the right of access to each other .","At the request of CARDINAL or both parents , the court shall establish an arrangement , for an indefinite period or otherwise , for the exercise of the right of access , or shall deny the right of access , for an indefinite period or otherwise .","NORP The court shall deny the right of access only if :","a. access would seriously damage the child 's psychological or physical development ;","b. the parent is clearly incapable or must clearly be deemed incapable of access ;","c. when interviewed , a child over DATE has indicated serious objections to access ;","d. access would be contrary in some other way to the compelling interests of the child .","... \u201d","If the parents disagree about the access arrangement , the courts request ORG for a report . Where the father has seen the child only occasionally since the child was very young and the parents are in dispute about the question of access , the ORG may organise a number of meetings on Board premises , in order to determine how the child responds to the father and how the father treats the child . Such observations are then used to decide on the request for an access arrangement .","The applicant applied to ORG on DATE . He maintained that the authorities ' refusal to grant him continued residence and his subsequent expulsion had infringed Articles CARDINAL , DATE and DATE of the Convention .","On DATE the Commission declared the complaints under Articles CARDINAL and CARDINAL inadmissible , and on DATE it declared the complaint under LAW admissible .","In its report of CARDINAL DATE , the ORG expressed the unanimous opinion that there had been a violation of LAW ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-66664","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2004,"docname":"A.B. v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr. PERSON , is an NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mrs. PERSON , a GPE lecturer in PERSON at ORG in \u00d6stersund .","The applicant belongs to an ethnic minority in GPE called the PERSON .","On DATE the applicant arrived in GPE with his family , his wife and their CARDINAL sons , born in DATE and DATE respectively , and applied for political asylum under the name of DATE , born in DATE .","On DATE , ORG ) held a first interview with the applicant in which he stated that he had fled from GPE in GPE due to political problems . He claimed that he was an opponent of GPE and the NORP regime and that he was politically active within the ORG ( a leftist movement ) . Further , he alleged that he had been imprisoned due to his political activities on CARDINAL occasions , first in DATE during DATE and then again in DATE for DATE . In DATE he and his family had fled to GPE where , through smugglers , they had bought forged NORP passports and visas and tickets for GPE . They travelled to GPE on DATE and , upon arrival , they threw away the passports since they were forged .","On DATE ORG held a second interview with the applicant where he told about his life and political activities in more detail . He claimed that he had become politically active when the PERSON was ousted in DATE and that as a student he had been involved in an organisation called PERSON ( a communist party ) for which he sold the organisations newspaper , handed out leaflets and painted slogans on walls . He had been arrested for the first time in DATE and , after a trial , he had been sentenced to DATE deportation to another region of GPE , PERSON . In DATE he had married and , DATE he had worked as a driver , delivering products for different stores . He stated that he was not religious , although his parents were NORP , but that it had been particularly difficult for him to be politically active since he was a NORP and the central regime under PERSON had had several conflicts with the ORG . At this point the interview was interrupted and it was not resumed until DATE when he continued his account of events . He stated that after he had returned from PERSON he had resumed his political activities , although not so openly anymore . In DATE he had again been arrested and during the interrogations he had been whipped and placed in very painful positions . He never admitted to anything and , in DATE , he was released . At that time his political organisation had ceased to exist but he had soon joined another organisation , PERSON ( ORG ) , which fought for the independence of GPE from GPE . The applicant claimed that he had transported newspapers and leaflets for the organisation in his car while working as a delivery man for various stores . In DATE a close associate of his in the organisation had been arrested and the applicant had then decided to flee with his family to avoid being arrested as well . He stated that if he was returned to GPE he would be arrested and imprisoned and probably executed due to his political activities .","On DATE ORG granted the applicant political asylum and a permanent residence permit .","In DATE the applicant was arrested and charged with having murdered his wife . He admitted that he had stabbed her but claimed that it should be considered as manslaughter ( dr\u00e5p ) . He stated that his wife had wanted a divorce and that she had moved to another apartment with the children . He knew that she was seeing other men . He further asserted that his wife \u2019s family in GPE had repudiated her when she demanded the divorce and that her father had told him that he was not a man if he did not kill her . He claimed that he had regretted the act immediately and had called the emergency services .","On DATE ORG ( tingsr\u00e4tten ) convicted the applicant of murder and sentenced him to CARDINAL years\u2019 imprisonment and lifetime expulsion from GPE . When deciding the CARDINAL years\u2019 imprisonment ORG took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence , which would have been life imprisonment , accordingly .","As concerned the expulsion , ORG had requested that ORG submit its observations on the matter . In its observations , ORG stated that the reasons invoked by the applicant at the time when he was granted asylum were not such that , according to the current practice , he would have been granted asylum . However , in line with ORG practice and the provisions in LAW , there was no reason to recall his refugee status . On the other hand , ORG found that there were no impediments to enforcing a possible order to expel the applicant . ORG also heard a witness called by the applicant who stated that he would be executed in GPE due to his political activities . The court considered that due to the very serious nature of the crime , there were particular reasons for expelling the applicant .","The applicant did not appeal against the judgment .","Following the conviction , the applicant lost custody of his sons and they were taken into care by the social authorities and placed in a foster home . They then had no contact with their father for DATE . In DATE the applicant was granted permission to call them once a month and to visit them when they were visiting his brother , who lived in GPE . The children allegedly had a close relationship with their uncle .","On DATE the applicant requested the Government , through ORG , to revoke the expulsion order . He informed the Government of his true identity , PERSON , and gave an account of what he stated was his true life story . He maintained that he had been politically active within the ORG , distributing newspapers and leaflets , organising demonstrations and writing slogans on walls , and that he had been arrested in DATE and detained for DATE before he was sentenced by a revolutionary court to CARDINAL months\u2019 deportation to the city of PERSON . When he returned home , he married and resumed his political activities . During the autumn of DATE he was again arrested and this time he was tortured during the interrogations . He claimed that he had been whipped , beaten , kicked and placed in very painful positions . After roughly CARDINAL years\u2019 detention , he had been released but had to report to the police once DATE . His relatives had helped him to buy a small lorry to enable him to work and support his wife . During DATE he had decided to flee from GPE and , after careful planning , he had fled with his wife to GPE where he was recognised as a refugee by the ORG High Commissioner for Refugees . In DATE his first son was born . The applicant alleged that many refugees were killed in GPE for which reason he and his family , in DATE , had travelled to the GPE where he had applied for asylum . In DATE his second son was born and , in DATE , his request for asylum was refused by the NORP authorities . On DATE , to avoid being sent back to GPE , the applicant had travelled to GPE with his family , on forged documents , where he had applied for asylum under the name of DATE","Before the Government the applicant submitted that he had continued his political activities in GPE where he had joined ORG ( BNM ) and had become a board member and a member of the editorial board of \u201c GPE \u201d , the organisation \u2019s newspaper . The applicant requested that the Government examine his reasons for asylum based on the information he had submitted . In particular , because of his family situation , an expulsion would mean that his sons would become parentless in GPE . Last , he claimed that the NORP authorities were aware of his political activities and that he would be executed because of this if forced to return to his home country . He submitted several documents to support his claims about his political activities , both in GPE and in GPE , inter alia , of which he submitted the following to the ORG :","A fax from the BNM in GPE , dated DATE , in which it was stated that the applicant was a former member of the central committee of the BNM and a member of the editorial board of the movement \u2019s news paper , \u201c Zrombesh \u201d . It further stated that the applicant would face torture and execution if returned to GPE due to his political activities .","CARDINAL further letter from the GPE , dated DATE , in which it renewed its concerns for the applicant \u2019s safety if expelled to GPE due to his active opposition to the NORP regime and that country \u2019s lack of respect for human rights .","A fax from the Spanish Catholic Migration Commission , dated DATE , which drew attention to LAW and noted that to expel the applicant to GPE would imply serious danger to his life and freedom .","A copy of his certificate issued in DATE by the ORG High Commissioner for Refugees in GPE , stating that the applicant was recognised as a refugee by the ORG . His date of birth was noted to be DATE .","On DATE , after a request by the Government , ORG ( Migrationsverket ) submitted its observation regarding the matter . It considered that there were no obstacles to expelling the applicant to GPE .","During DATE the applicant published a book about his life , in NORP , which included information about his political activities , experiences from NORP prisons and criticism of the NORP regime . He claimed that the content of the book would automatically lead to a very harsh sentence for him if he were returned to GPE since he was convinced that ORG in GPE would have obtained a copy of the book . CARDINAL copies of the book had been printed .","Based on this new information , the Government requested that ORG submit supplementary observations . On DATE , ORG maintained that the applicant \u2019s political activities in his home country as well as the political activities he had performed in GPE before his imprisonment were not such that they could constitute an impediment to the enforcement of his expulsion to GPE . However , it stated that some of the statements made by the applicant in his book were of such a character that it could not be excluded that the NORP authorities had noted them and that the applicant might be apprehended as a result if forced to return . ORG therefore considered that there could be an impediment against enforcing the expulsion for this reason .","On DATE the applicant was conditionally released from prison but placed in detention awaiting expulsion following a decision , DATE , by the Minister of ORG . However , on DATE , the Minister of ORG had also decided that the applicant should not be expelled until the Government decided otherwise .","On DATE the Minister of ORG decided that the applicant should be released from detention .","Apparently , on DATE , the applicant participated in a NORP radio programme which discussed the topic of honour - related murders .","In DATE the ORG requested ORG in GPE to investigate whether the applicant would be at risk if returned to GPE and to submit its assessment on the matter .","On DATE the ORG submitted its answer to the Government . It stated that it was possible that the NORP authorities were aware of the GPE \u2019s activities outside GPE but that it did not appear that the organisation had any activities or contacts within the country . As concerned the applicant \u2019s book , the ORG made the assessment that it did not contain any information which could be considered as offensive by the NORP authorities . It noted that the prison conditions in GPE were discussed in the NORP media and that the applicant \u2019s experiences and descriptions of the prisons were outdated . Moreover , the political activities described by the applicant in his book were not current and were depicted in a vague and summary manner . Thus , the ORG concluded that the applicant would not risk being punished if returned to GPE , neither because of his political activities nor because of his book .","The applicant claimed that the ORG had not seriously read and considered the content of his book . He had also participated in more radio programmes where he had made critical comments against the NORP regime and culture . Moreover , he stated that his wife \u2019s relatives would kill him if he returned as revenge for having murdered her . Last , he stated that his relationship with his sons was improving all the time and that he met with them and spoke with them on the phone frequently . In particular , his relation to his younger son was getting stronger and his son had asked to be allowed to live with the applicant .","On DATE the Government rejected the applicant \u2019s request to have the expulsion order revoked . The Government found that there was neither any impediment against the enforcement of the expulsion nor any other special reason , as set forth in LAW , to revoke the expulsion order .","In DATE the applicant lodged a new application with the ORG , requesting that the expulsion order be revoked . He stated that his younger son had had a severe crisis as a result of the ORG \u2019s rejection since he did not want to lose his father . The younger son spent DATE with his father and had expressed the wish to be allowed to live with him . The older son kept his distance from his father but did not want him to be expelled . He submitted a medical certificated written by a Chief Physician at the Children and ORG in DATE which stated that consideration should be taken of the children \u2019s difficult situation and need of their father .","On DATE the Government rejected the request , finding no reason to change its previous decision .","In DATE the applicant lodged yet another application with the Government to have the expulsion order revoked . He primarily invoked his younger son \u2019s deteriorating psychological status which was caused by the fear of losing his father and becoming parentless . The applicant and his younger son had developed a very close relationship and it would cause irreparable damage to the son if his father were to be expelled expelled .","On DATE the Government rejected the application on the same grounds as previously .","On DATE , after a request by the applicant , the President of the ORG to which the case had been allocated decided , under LAW , to indicate to ORG that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE until the ORG had had the opportunity to examine the application on DATE .","Pursuant to LAW , LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .","Provisions on expulsion on this ground are laid down in LAW . According to LAW , section CARDINAL of the LAW , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . Firstly , he or she must be convicted of a crime that is punishable by imprisonment . Secondly , he or she may only be expelled if he or she is in fact sentenced to a more severe punishment than a fine and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he or she will continue his or her criminal activities in GPE or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he or she ought not to be allowed to remain in the country .","Furthermore , under LAW , section CARDINAL of the Act , when considering whether or not an alien should be expelled , the court shall take into account his or her links to NORP society . As regards aliens who are considered to be refugees and in need of protection in GPE , they may be expelled only if they have committed a particularly serious crime and it would entail serious danger for public order and safety to allow them to remain in GPE . An alien with refugee status shall be considered as a refugee in need of protection in GPE unless it is evident that he or she no longer is a refugee with such a need .","Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Further , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .","According to LAW , section CARDINAL of the LAW , if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , the ORG may repeal , in part or completely , the judgment or decision by the court . The ORG may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) grant clemency or reduce a penal sanction or other legal effect of a criminal act ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90276","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2008,"docname":"CASE OF TERZIOGLU AND OTHERS v. TURKEY","importance":4,"conclusion":"Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in different cities in GPE .","On various dates , the applicants inherited or bought plots of land and properties near the coasts in different parts of GPE , namely in GPE , \u015eark\u00f6y , GPE , GPE and GPE . Some of the applicants constructed houses or operated commercial entities on their land .","NORP On different dates , the ORG requested from the competent courts of first instance to determine whether the applicants\u2019 properties were located within the coastal strip . A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area .","Following the conclusion of the expert reports , the ORG brought actions before the relevant courts , requesting the annulment of the ORG title deeds to the land and the properties , on the ground that they were located within the coastal area .","On various dates , the courts of first instance upheld the request of the ORG and annulled in full the applicants\u2019 title deeds in application nos . GPE , CARDINAL\/CARDINAL , CARDINAL and CARDINAL , whereas the title deeds in the remaining CARDINAL applications were partially annulled . In their decisions , the courts held that , pursuant to domestic law ( LAW of DATE ) , the coasts could not be subject to private ownership and that , therefore , the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the plots of land .","Appeals by the applicants against these judgments were dismissed by ORG . Some of the ORG requests for rectification of the judgments were also rejected by that court .","In application no . CARDINAL\/CARDINAL the applicant brought an action for damages in the \u015eark\u00f6y Civil Court of First Instance on account of his loss of ownership and the demolition of CARDINAL shops located on the land . On DATE ORG Instance dismissed the applicant \u2019s action on the ground that , inter alia , the ORG was not liable for the damage resulting from the cancellation of the registration of the property in issue . The applicant appealed . In a judgment of DATE ORG upheld the judgment . A rectification request by the applicant was further dismissed by ORG on DATE .","The details concerning the CARDINAL applications are indicated in the table below :","","The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON v. GPE judgment ( no . CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":["P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23579","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2003,"docname":"ZOLLMANN v. THE UNITED KINGDOM","importance":1,"conclusion":"Inadmissible","judges":"Ireneu Cabral Barreto;Nicolas Bratza","text":["The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and have given addresses in GPE and GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants , who are brothers , run an international diamond business , which involved , inter alia , importing diamonds to the family business in GPE , GPE . They state that in DATE the family business took the decision not to import diamonds from NORP countries which were undergoing civil war or political instability .","By resolution CARDINAL ( DATE ) of DATE , ORG imposed an embargo on the export of diamonds by ORG due to that organisation 's role in the continuing war in GPE . In paragraph CARDINAL , it requested GPE to take measures against persons or bodies which violated the sanctions and to impose appropriate penalties . On DATE , ORG formally adopted sanctions , binding on its member states . By DATE , GPE and GPE had adopted legislation to give effect to resolution DATE . The legislation as amended in GPE prohibited the importation into GPE of diamonds from GPE unless certified by ORG .","On DATE , in answer to a parliamentary question , Mr PERSON , the Minister of State at ORG responsible for LOC , gave a written response stating inter alia ;","\u201c We fully support ORG sanctions against ORG ... We have also called for stricter enforcement of sanctions by all ORG member states . ... The GPE fully implements ORG sanctions decided upon by ORG Information concerning potential breaches of sanctions by GPE nationals or companies is passed immediately to the appropriate GPE enforcement authorities . \u201d","On DATE , in answer to further questions about Government measures to enforce ORG sanctions , PERSON stated :","\u201c It is vital that private individuals and companies engaged in breaking the law by deliberately breaching the ORG sanctions on ORG are stopped . I can inform the ORG that we are referring to the ORG sanctions committee and its expert panels the details of CARDINAL such individuals which we hope that they will be able to follow up ... \u201d","On DATE , PERSON stated in the ORG :","\u201c We are ready to name , shame and take action where we can on those who break sanctions . For example , we would take action in respect of the illegal provision of ORG with supplies , without which it could not keep on fighting in GPE . I have named in the ORG several people included in breaking ORG sanctions by supplying ORG and I shall now name more . PERSON is involved in exporting diamonds to GPE for ORG . Based in NORP , GPE , GPE paid a DATE fee to NORP officials to enable him to operate without interference . We estimate that in DATE PERSON was moving MONEY worth of diamonds per DATE . His brother , PERSON , is carrying out similar activity for ORG in GPE . PERSON , a NORP pilot , flies diamonds for PERSON from GPE , via GPE ... Those individuals are making money out of misery . It is vital that all the ORG , agencies and companies where they operate take urgent action to stop their illegal activities ... We have passed these names to the ORG and in particular to ambassador PERSON , for his work on ORG responsible for tackling ORG and GPE generally . \u201d","This declaration was published in ORG and was available on the parliamentary website . The press reported on the matter , repeating the names of the persons included in the declaration \u2013 this included a report from ORG on CARDINAL DATE repeated by ORG , an article in the ORG on DATE and an article in the NORP newspaper ORG on DATE . PERSON declaration was repeated in ORG by the deputy minister for foreign affairs on DATE .","The applicants stated that an investigation was opened into the allegations by the parquet in GPE in DATE . No proceedings have since ensued . The applicants provided a letter dated DATE from the GPE procureur stating that the investigation had been closed with a decision not to prosecute or issue charges . A letter ( undated but apparently sent in DATE ) from the NORP Foreign Minister to a NORP Member of ORG stated that the NORP secret service had provided information to the NORP secret service but that it had not been established on the basis of that information that PERSON was guilty of the acts that Mr PERSON had accused him of .","By letter dated DATE , the first applicant wrote to Mr PERSON denying the facts imputed by the Minister and requesting a meeting with himself and his brother . On DATE , Mr PERSON replied that he stood by the statement which he had made , that the matter was in the hands of ORG and that he saw no need for a meeting .","On DATE , the Panel of Experts assisting ORG stated in a report that it has received information from several sources that PERSON had been involved in importing diamonds to GPE for ORG and that similar allegations had been made publicly . It considered that further investigation was warranted and passed on the information to the Chairman of ORG .","On DATE , following disclosure of the letter by the NORP Minister for ORG , the first applicant 's counsel wrote to Mr PERSON requesting that he retract his allegations publicly and meet with the first applicant on his visit to GPE in DATE , or alternatively , to waive the parliamentary privilege attaching to his statements in order to permit the first applicant to take proceedings in the courts . No response was received to this letter .","In the report of ORG dated DATE , a detailed analysis of the status of the sanctions on diamond trading in the region was made . PERSON was named as the junior partner in the GPE firm of PERSON which had created ORG that had been the largest mining operation in the NORP valley before the imposition of sanctions . In the additional report dated DATE reporting on the enforcement of sanctions , no mention was made of either applicant .","Since then the applicants have alleged that the stigma attaching to their reputation has led to other businesses refusing to trade with them e.g. providing CARDINAL letters referring to the appearance of the name of CARDINAL of the applicants in ORG documents concerning diamond smuggling .","Words spoken by MPs in the course of debates in ORG are protected by absolute privilege . This is provided by LAW , which states :","\u201c ... the freedome of speech and debates or proceedings in ORG ought not to be impeached or questioned in a court or place out of Parlyament . \u201d","The effect of this privilege was described by Lord Chief Justice PERSON in the case of Ex parte PERSON ( DATE ) QB CARDINAL at CARDINAL :","\u201c It is clear that statements made by Members of either ORG of ORG in their places in the ORG , though they might be untrue to their knowledge , could not be made the foundation of civil or criminal proceedings , however injurious they might be to the interest of a third party . \u201d","Statements made by MPs outside ORG are subject to the ordinary laws of defamation and breach of confidence , save where they are protected by qualified privilege .","The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest . In the case of ORG [ DATE ] CARDINAL AC CARDINAL , which concerned allegations made in the NORP press about an NORP political crisis in DATE , Lord PERSON of GPE stated in ORG , at page CARDINAL :","Depending on the circumstances , the matters to be taken into account include the following . The comments are illustrative only . CARDINAL . The seriousness of the allegation . The more serious the charge , the more the public is misinformed and the individual harmed , if the allegation is not true . CARDINAL . The nature of the information , and the extent to which the subject matter is a matter of public concern . CARDINAL . The source of the information . Some informants have no direct knowledge of the events . Some have their own axes to grind , or are being paid for their stories . CARDINAL . The steps taken to verify the information . CARDINAL . The status of the information . The allegations may have already been the subject of an investigation which commands respect . CARDINAL . The urgency of the matter . News is often a perishable commodity . CARDINAL . Whether comment was sought from the plaintiff . He may have information others do not possess or have not disclosed . An approach to the plaintiff will not always be necessary . CARDINAL . Whether the article contained the gist of the plaintiff 's side of the story . CARDINAL . The tone of the article . A newspaper can raise queries or call for an investigation . It need not adopt allegations as statements of fact . CARDINAL . The circumstances of the publication , including the timing . \u201d","Press coverage , to the extent that it fairly and accurately reports parliamentary debates , is generally protected by a form of qualified privilege which is lost only if the publisher has acted \u201c maliciously \u201d . \u201c Malice \u201d , for this purpose , is established where the report concerned is published for improper motives or with \u201c reckless indifference \u201d to the truth . A failure to make proper enquiries is not sufficient in itself to establish malice , but it may be evidence from which malice ( in the sense of reckless indifference to the truth ) can reasonably be inferred .","MPs can waive the absolute immunity which they enjoy in ORG as a result of LAW , which provides :","\u201c ( CARDINAL ) Where the conduct of a person in or in relation to proceedings in ORG is in issue in defamation proceedings , he may waive for the purposes of those proceedings , so far as concerns him , the protection of any enactment or rule of law which prevents proceedings in ORG being impeached or questioned in any court or place out of ORG .","( CARDINAL ) Where a person waives that protection \u2013","( a ) any such enactment or rule of law shall not apply to prevent evidence being given , questions being asked or statements , submissions , comments or findings being made about his conduct , and","( b ) none of those things shall be regarded as infringing the privilege of either ORG of ORG .","( CARDINAL ) The waiver by CARDINAL person of that protection does not affect its operation in relation to another person who has not waived it .","( CARDINAL ) Nothing in this section affects any enactment or rule of law so far as it protects a person ( including a person who has waived the protection referred to above ) from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG . \u201d","General control is exercised over debates by the Speaker of each ORG of ORG . Each ORG has its own mechanisms for disciplining Members who deliberately make false statements in the course of debates . Deliberately misleading statements may be punishable by ORG as a contempt . Alternatively , as the parliamentary ORG on Procedure ( DATE ) has observed :","\u201c ... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the ORG . He can approach his Member of ORG with a view to his tabling DATE , or an amendment where appropriate ; there may be cases which can be raised through Questions if some ministerial responsibility can be established ; he can petition the ORG , through a Member ; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified . We believe that in these circumstances , the ORG would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another , particularly if the latter was the source of the statement complained of , and so long as the courtesies of proper notification were observed . \u201d","A ORG of both ORG was set up in DATE and tasked with reviewing the law of parliamentary privilege . ORG received written and oral evidence from a wide variety of sources from within GPE and abroad and held CARDINAL sessions of evidence in public . Its report was published in DATE . LAW sets out its conclusions on parliamentary immunity :","\u201c CARDINAL . The immunity is wide . Statements made in ORG may not even be used to support a cause of action arising out of ORG , as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in ORG as proof of malice . The immunity is also absolute : it is not excluded by the presence of malice or fraudulent purpose . Article CARDINAL protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly . ... In more precise legal language , it protects a person from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG .","A comparable principle exists in court proceedings . Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation . The rationale in the CARDINAL cases is the same . The public interest in the freedom of speech in the proceedings , whether parliamentary or judicial , is of a high order . It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy .","It follows that we do not agree with those who have suggested that members of ORG do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government . Unlike members of ORG , local councillors are liable in defamation if they speak maliciously . We consider it of utmost importance that there should be a national public forum where all manner of persons , irrespective of their power or wealth , can be criticised . Members should not be exposed to the risk of being brought before the courts to defend what they said in ORG . Abuse of parliamentary freedom of speech is a matter for internal self - regulation by ORG , not a matter for investigation and regulation by the courts . The legal immunity principle is as important DATE as ever . The courts have a duty not to erode this essential constitutional principle . \u201d","LAW provides :","\u201c a. ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions .","b. The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph a above . For this purpose ORG shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members . In addition , a special agreement shall be concluded with ORG of GPE defining the privileges and immunities which the ORG shall enjoy at its seat . \u201d","In pursuance of paragraph b above , the member GPE , on DATE , entered into LAW . This provides , as relevant , as follows :","\u201c Representatives to ORG and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions . \u201d","\u201c During the sessions of ORG , ORG and their substitutes , whether they be members of ORG or not , shall enjoy :","a. on their national territory , the immunities accorded in those countries to members of ORG ;","b. on the territory of all other member GPE , exemption from arrest and prosecution . ... \u201d","LAW to the General Agreement on Privileges and Immunities of the Council of Europe provides :","\u201c Privileges , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . \u201d","LAW on the Privileges and Immunities of ORG , adopted in accordance with LAW establishing a ORG and a ORG of ORG , provides :","\u201c Members of ORG shall not be subject to any form of inquiry , detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22631","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2001,"docname":"C.M. v. FRANCE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national , born in DATE and living in LOC ( GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is the owner of a private motor vehicle which he also uses in the course of his professional activities with the permission , granted on CARDINAL DATE , of the regional director for industry , research and the environment .","On DATE the applicant \u2019s son , accompanied by a friend , was driving the car when he was stopped for a customs inspection . The customs officers found QUANTITY of heroin , whereupon the applicant \u2019s son and his friend admitted that they had been to the GPE to acquire drugs for their personal use .","On DATE ORG convicted the applicant \u2019s son of drug smuggling and drug use . The ORG also ordered that the vehicle used to commit the smuggling offence should be forfeited to the customs authorities . The applicant \u2019s son lodged an appeal against the judgment relating solely to the forfeiture of the vehicle .","On DATE ORG upheld the judgment ordering the forfeiture on the following grounds :","\u201c The vehicle was lawfully seized under LAW .","Under LAW , any smuggling offence involving prohibited goods results in the forfeiture of the vehicle .","Liability to forfeiture is incurred whenever an offence has been committed ( Court of Cassation , Criminal Division \u2013 \u201c PERSON . PERSON . \u201d , DATE ) .","Moreover , it is clear that the vehicle was used to commit the offence .","The case law provides the following clarification of the position :","\u2013 The statutory provision requiring the forfeiture of vehicles used for smuggling is general and absolute and makes no exception in respect of vehicles without which it would have been impossible to bring smuggled goods in or out . It suffices that they were used in CARDINAL way or another . ( PERSON . PERSON . DATE )","\u2013 Courts which find that a vehicle was used for smuggling can not refrain from ordering their forfeiture save where they find extenuating circumstances as provided by LAW , which makes no reference to LAW and is not covered by LAW CARDINAL of DATE .","Accordingly , this court allows the authorities\u2019 application and upholds the judgment of ORG since , in view of the seriousness of the offences of which he is accused , [ the applicant \u2019s son ] is not entitled to plead extenuating circumstances under customs law . \u201d","The applicant was not notified of either the judgment of DATE or that of DATE .","In a letter of DATE the applicant \u2019s lawyer asked the customs authorities to return the applicant \u2019s private vehicle to him along with some personal effects ( a pair of gloves , a pair of hunting boots , CARDINAL knives and a pack of cards ) .","On DATE the applicant \u2019s lawyer sent a further letter repeating his request and stating that the applicant refused to pay any sum , however small , to recover his vehicle .","In a letter of CARDINAL DATE the interregional director of customs stated that the applicant could recover his personal effects , as he had already been told during a telephone conversation on DATE . Regarding the vehicle , the director informed him that he was \u201c prepared to accept a friendly settlement for the transfer of the vehicle ... in return for payment in cash of ORG CARDINAL,CARDINAL ( MONEY ) \u201d .","The relevant provisions of LAW read as follows :","\u201c CARDINAL . When seized goods are not prohibited an offer to release the vehicle from judicial seizure shall be made subject to security from a reliable guarantor or deposit of the value .","NORP That offer and the reply thereto shall be recorded in the official report .","The vehicle shall be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage , rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession . However , restitution is subject to the reimbursement of any costs incurred by the customs authorities for the holding and safe keeping of the seized vehicle . \u201d","\u201c District courts shall adjudicate disputes relating to the payment or reimbursement of duties , applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts . \u201d","\u201c CARDINAL . Seized or forfeited objects may not be claimed by the owners , nor may the value of the vehicle , whether deposited or not , be claimed by creditors , including secured creditors , save through action against the party who committed the customs offence .","Once time limits for lodging appeals , third party applications and sales have expired , all actions for restitution and other actions shall be inadmissible . \u201d","The relevant provisions of LAW read as follows :","\u201c ORG shall hear the following cases , subject to appeal :","( CARDINAL ) ORG relating to refusal to pay customs duties , applications to set aside an order to pay , failure to discharge liabilities imposed by transit bonds and other customs cases ; ... \u201d","Finance Amendment Law no . DATE of DATE amended LAW by adding a third paragraph providing for the establishment of an exceptional procedure where owners have acted in good faith . The reform was intended to resolve problems in applying Article CARDINAL \u00a7 CARDINAL resulting from the increase in vehicle rental and leasing contracts by allowing the situation of various vehicle rental , leasing and public transport or freight companies to be resolved by absolving them from guarantor and deposit requirements as long as there was proof of good faith and a contract had been negotiated .","This statutory system has been progressively supplemented by case - law . ORG has clarified that this was the only legal remedy that an owner acting in good faith could use to have his vehicle restored as a civil claim in criminal proceedings against a person who had committed a customs offence would be inadmissible because the loss or damage complained of was not the direct result of the offences at issue ( PERSON . PERSON . , DATE , Bulletin criminel \u2013 \u201c Bull . crim . \u201d no . CARDINAL ) .","On DATE ORG also established the principle that paragraphs CARDINAL of Article CARDINAL should be read separately :","\u201c Under LAW , the vehicle must be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage , rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession , regardless of the nature of the goods transported . \u201d ( Bull . crim . no . CARDINAL) .","Furthermore , in a judgment of DATE ORG established the principle that the district courts had jurisdiction to hear applications for restitution under ORG CARDINAL and ORG the ORG Code which , when combined with LAW ,","\u201c assign[ed ] jurisdiction to rule on the restitution of vehicles seized during these operations to the district court of the place in which the seizure took place . Under these circumstances and provided that the ship - owner was not implicated in the criminal proceedings the impugned judgment rightly upheld ORG decision that it had jurisdiction \u201d .","In this ruling ORG also specified that the provisions of Article CARDINAL applied both to the seizure carried out by the customs authorities and to the forfeiture ordered by the courts and moreover that the civil courts were under no obligation to defer their decision pending the outcome of the criminal proceedings .","\u201c Under certain circumstances specified therein , LAW entitles owners acting in good faith of vehicles seized because they were used for smuggling to have their vehicle returned without the need for a guarantor or a deposit even when a criminal court has ordered their forfeiture . It follows that criminal proceedings during which such orders are issued can not have any influence on any future decisions in civil proceedings to establish ownership . \u201d ( PERSON . PERSON . DATE , ORG . crim . no . CARDINAL ; ORG CARDINAL-IV , p. CARDINAL ) .","The jurisdiction of the district courts was reconfirmed in a judgment of CARDINAL DATE ( PERSON case ) in the following terms :","\u201c District courts hear disputes relating to the payment or reimbursement of duties , applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts . Under Articles CARDINAL and CARDINAL of the Customs Code , the criminal courts hear cases relating to petty and lesser indictable customs offences and all customs matters raised as a defence . It follows that the district courts have primary jurisdiction to hear these cases provided that they fall within the jurisdiction of the ordinary courts . \u201d","In this judgement , ORG also extended the scope of LAW , taking the view that this provision allowed any vehicle to be returned to owners acting in good faith , without the need for a guarantor or a deposit , even if there was no contract between the owner and the offender who had used the vehicle ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67415","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2004,"docname":"CASE OF SEJDOVIC v. ITALY","importance":2,"conclusion":"Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (national proceedings) - claim dismissed;Costs and expenses award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE ( GPE ) .","On DATE a Mr S. was fatally injured by a shot fired at a Gypsy encampment in GPE . The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing .","On DATE the GPE investigating judge made an order for the applicant 's detention pending trial . However , the order could not be enforced as the applicant had become untraceable . As a result , the NORP authorities considered that he had deliberately evaded justice and on DATE declared him to be a \u201c fugitive \u201d ( latitante ) . The applicant was identified as PERSON ( or PERSON ) PERSON ( or PERSON ) , probably born in PERSON on DATE , the son of PERSON ( or PERSON ) and the brother of PERSON ( ou PERSON ) PERSON ( or PERSON ) .","As the NORP authorities had not managed to contact the applicant to invite him to select his own defence counsel , they assigned him a lawyer , who was informed that his client and CARDINAL other persons had been committed for trial on a specified date in ORG .","The lawyer attended the hearing , but the applicant did not .","NORP In a judgment of DATE , the text of which was deposited with the registry on DATE , ORG convicted the applicant of manslaughter and illegally carrying a weapon and sentenced him to DATE and DATE imprisonment . CARDINAL of the applicant 's co - defendants was sentenced to DATE and DATE imprisonment for the same offences , while the CARDINAL others were acquitted .","The applicant 's lawyer was informed that ORG judgment had been deposited with the registry . He decided not to avail himself of his right of appeal under NORP law . The applicant 's conviction accordingly became final on DATE .","On DATE the applicant was arrested in GPE by the NORP police under an arrest warrant issued by the GPE public prosecutor 's office . On DATE the NORP Minister of ORG requested the applicant 's extradition . He added that , once he had been extradited to GPE , the applicant would be entitled to apply under LAW of LAW ( \u201c the ORG \u201d ) for leave to appeal out of time against ORG judgment .","At the request of the NORP authorities , the GPE public prosecutor 's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him . The public prosecutor 's office was not in a position to say whether the applicant had contacted the lawyer assigned to represent him . In any event , the lawyer had attended the hearing and had played an active role in conducting his client 's defence , having called a large number of witnesses . Furthermore , ORG had clearly established that the applicant , who had been identified by numerous witness as PERSON killer , was guilty . In the opinion of the public prosecutor 's office , the applicant had absconded immediately after PERSON death precisely to avoid being arrested and tried . Lastly , the public prosecutor 's office stated :","\u201c A person who is to be extradited may seek leave to appeal against the judgment . However , for a court to agree to re - examine the case it has to be proved that the accused was wrongly deemed to be a ' fugitive ' . To sum up , a new trial , even in the form of an appeal ( during which new evidence may be submitted ) , is not granted automatically . \u201d","On DATE the NORP authorities refused ORG extradition request on the ground that the requesting country 's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened .","In the meantime , the applicant had been released on CARDINAL DATE .","The relevant parts of LAW and CARDINAL of the ORG provide :","\u201c A person convicted in absentia ... may apply for leave to appeal out of time against the judgment where he is able to prove that he was not effectively notified [ of the judgment ] ... [ and ] on condition that there has been no negligence on his part or , if the judgment delivered in absentia has been served ... on his lawyer ... , that he has not deliberately refused to apprise himself of the steps taken in the proceedings .","An application for leave to appeal out of time must be lodged within DATE of the date ... on which the accused learned [ of the judgment ] , failing which it shall be inadmissible . \u201d"],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5334","languageisocode":"ENG","respondent":"CHE","branch":"ADMISSIBILITY","date":2000,"docname":"R.T. v. SWITZERLAND","importance":3,"conclusion":"Inadmissible","judges":"Andr\u00e1s Baka","text":["The applicant , a NORP citizen born in DATE , is a construction engineer residing in GPE in GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .","","On DATE at CARDINALhCARDINAL TIME the applicant was driving a car in PERSON in GPE when he was stopped by the police . His blood level was checked , disclosing an alcohol level of QUANTITY .","On DATE ORG of the GPE of GPE ( PERSON ) withdrew the applicant 's driving licence for DATE .","On DATE ORG ( PERSON ) issued a penal order ( PERSON ) in which it found the applicant guilty of driving under the influence of alcohol . It imposed on him a prison sentence of DATE suspended on probation for DATE as well as a fine of MONEY ( CHF ) . No appeal was filed against this penal order which acquired legal force .","Against the decision of ORG of CARDINAL DATE the applicant filed an appeal in which he complained of the length of the withdrawal of his driving licence . The appeal was dismissed by ORG ( ORG - kommission ) of the GPE of GPE on DATE .","The applicant filed an administrative law appeal ( PERSON ) with ORG ( PERSON ) in which he complained that he had not had a public hearing as required by LAW , and that the measure imposed on him was excessive . In its judgment of CARDINAL DATE the ORG considered , with reference to NORP doctrine and practice , that LAW was applicable to the case concerning the withdrawal of a driving licence . Thus , even if the matter had already been decided by the criminal judge , the authorities withdrawing the driving licence were \u201c determining a criminal charge \u201d within the meaning of this provision . According to LAW , the applicant should have had an oral hearing which he did not have . As a result , the ORG quashed the decision of the lower court .","Proceedings were resumed before ORG . By letter of CARDINAL DATE the President of the Commission informed the applicant of the public hearing ( \u00f6ffentliche Verhandlung ) fixed for DATE in which the applicant would be questioned and the lawyer would have the opportunity to comment on the evidence . A representative of ORG would also have the possibility to speak .","The applicant 's lawyer replied on DATE that he intended to plead the case fully and not merely to limit himself to comment on the evidence . Any limitation in this respect would contradict the purpose of an oral hearing .","By letter of CARDINAL DATE the President of ORG informed the applicant 's lawyer as follows :","\u201c In reply to your letter of CARDINAL DATE I can inform you that on DATE there shall not be a ' trial ' ( ' PERSON ' ) but a public hearing ( \u00f6ffentliche GPE ) of the appellant , based on LAW .","As a lawyer of the appellant you may be present at the hearing and you may thereafter comment thereupon . If at the hearing new legal issues arise you will have the opportunity to express yourself .","I would explain this manner of proceeding essentially as follows . The appeals proceedings continue to be in writing ... Despite a public hearing they are not replaced by oral proceedings . It is therefore not admissible to repeat or to add appeal grounds in open court ( an GPE ) . In the present case , the exchange of statements has occurred long ago and the content is known to the court . \u201c","By letter of CARDINAL DATE the applicant 's lawyer replied that the oral hearing should be the same as a trial conducted in criminal proceedings , and that he would speak before the court on his complaint of ne bis in idem .","By letter of CARDINAL DATE the President informed the applicant 's lawyer of a judgment of ORG according to which the principle ne bis in idem was not breached in the applicant 's situation . The letter continued : \u201c it can be left open whether this statement ( ORG ) is admissible in court \u201d .","The hearing before ORG took place on DATE . The President prepared notes for this hearing which mentioned its conduct and contained prepared statements for each stage . According to the notes , the applicant was first questioned . The notes continue :","\u201c I now wish to give the floor to [ the applicant 's lawyer ] . He may comment on the duration of the withdrawal of the licence based on the questioning of the appellant . Actual legal explanations which amount to a repetition of the written appeal statement are not admissible . Thus , the exchange of written statements has been closed , the content of the case - file is known to the court . In this sense I now ask ( the applicant 's lawyer ) to take the floor .","( To the extent that [ the applicant 's lawyer ] evidently departs from this topic , he must be admonished . Possibly there should be a reproach ( S. CARDINAL of LAW ) if [ the applicant 's lawyer ] continues along the same lines . A disciplinary fine should only be imposed in last resort . )","..... listen to the statements of [ the applicant 's lawyer ]","..... at the end thank [ the applicant 's lawyer ] for his statement . \u201d","A representative of ORG was heard , and the applicant was given the final word .","On DATE ORG gave its judgment in which it dismissed the applicant 's appeal . The judgment recalled that the applicant had been questioned at the hearing ; that his lawyer had been able to make comments ; that the applicant had been given the final word ; and that the applicant 's lawyer had disagreed with this procedure , requesting a trial corresponding to criminal proceedings .","The judgment continued that the topic of the appeal was limited in that the administrative authority was bound both factually and legally by the result of the criminal proceedings . As a result , the main topic in the applicant 's case was the length of the withdrawal of the driving licence . With reference to LAW found that the withdrawal of a driving licence resembled in many respects a criminal sanction , but it remained an administrative measure in respect of which written proceedings were in principle called for .","The judgment then dealt with the applicant 's complaint of ne bis in idem which he had raised in open court and also in his letter of CARDINAL DATE . This principle was not breached as the withdrawal of a driving licence was an administrative measure which was distinct from the penal sanction . Both the criminal and the administrative authority were called upon to consider all sanctions in their entirety when meting out the punishment . The judgment concluded that the applicant could not be acquitted on this ground , \u201c independently thereof whether it was admissible to raise this matter at all in open court \u201d .","The applicant filed an administrative law appeal in which he complained , inter alia , of a breach of ne bis in idem and that at the hearing his lawyer had on a number of occasions been interrupted and admonished not to make any pleadings .","The appeal was dismissed by ORG on DATE . Insofar as the applicant complained that he had not had an oral hearing as required by LAW , the ORG noted that the applicant was heard orally and publicly before ORG , and the applicant 's lawyer was able to comment in court on ne bis in idem . To the extent that the lawyer complained that he had been interrupted when speaking on this matter , he had not claimed that he had been unable to comment on the points relevant for the judgment .","In respect of the applicant 's complaint of a breach of ne bis in idem , the ORG found that the criminal judge and the administrative authority had different jurisdictions , and this was not called in question by the criminal nature of the withdrawal of the driving licence within the meaning of LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22839","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2002,"docname":"KRANZ v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the applicant and his wife obtained a divorce decree . On CARDINAL DATE the applicant \u2019s ex - wife filed with ORG ( S\u0105d Rejonowy ) a petition for division of the matrimonial property .","On DATE ORG gave a decision . Both parties appealed . On DATE ORG ( PERSON ) quashed the first - instance decision and remitted the case .","In DATE the applicant \u2019s ex - wife donated her share in the disputed property to ORG and ORG , who became parties to the proceedings .","On DATE the applicant sent a letter to the Minister of ORG , complaining about the slow progress of the proceedings . On DATE , in reply to his complaints , the President of ORG acknowledged that the proceedings were indeed lengthy .","Prior to CARDINAL DATE , ORG held a number of hearings and obtained several expert reports .","On DATE the ORG gave a decision . The court granted ownership of the entire property ( plot of land and a house ) to PERSON and PERSON The court also ordered them to pay off the applicant \u2019s share in the estate .","On DATE , on the applicant \u2019s appeal , ORG partly amended the first - instance decision . On DATE the applicant lodged a cassation appeal .","In DATE PERSON and ORG sold their share in the property to a certain PERSON On DATE ORG ( S\u0105d Najwy\u017cszy ) quashed the decision of CARDINAL June DATE and remitted the case to ORG ( PERSON ) .","On DATE ORG issued an interim order allowing the applicant to install central heating in his part of the house . On DATE , upon an appeal by PERSON , ORG quashed this decision .","It appears that the proceedings are pending before ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-89892","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2008,"docname":"ALEKSEYEV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , a town in LOC . ORG ( \u201c the Government \u201d ) were represented by PERSON PERSON , former Representative of GPE at ORG , and PERSON , Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is a bailiff . In DATE ( according to the applicant ) or DATE ( according to ORG ) the applicant sued his employer , ORG , for unpaid TIME shifts and overtime .","On DATE the Justice of ORG of GPE ordered the Ministry to recalculate the applicant \u2019s salary from DATE , to pay arrears , and to amend the applicant \u2019s contract .","On DATE the ORG of GPE upheld this judgment on appeal and the judgment became binding . It was gradually enforced by DATE .","Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4618","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":1999,"docname":"M.P. v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant is a NORP national born in DATE . He is a milling machinist and is currently detained in W\u0142odawa prison .","DATE the applicant served a prison sentence . In DATE he informed the medical service of NORP Opolskie prison that he had pain in his testicles . The applicant submits that after his problems with the testicles had started in DATE , until his release on probation in DATE he was treated only by a dermatologist and a surgeon while his condition had called for a treatment by an urologist .","In DATE the applicant underwent a surgery in ORG . It resulted in the removal of his left testicle on which a cyst had been found .","On DATE the applicant was detained after he had attempted to commit a murder .","On DATE the applicant was examined by a physician but did not complain about any significant medical problems .","DATE and DATE the applicant was detained in the psychiatric ward of ORG where he underwent observation . During his stay in that facility the applicant was also examined by a surgeon who diagnosed an infection of the testicle . The surgeon prescribed antibiotics and decided that the applicant qualified for a surgery . However , the applicant informed the Director of ORG that he would agree to the surgery only after the surgeon who was to perform it confirmed in writing that it would not cause any damage to the testicle and that there would be no further metastasis of the cyst . That statement was considered by the prison health service as a refusal to undergo the surgery .","In the meantime , the applicant sent letters to the Governor of PERSON prison , the Director of ORG and ORG , in which he requested that he be examined by an urologist and an oncologist . On DATE ORG informed the applicant that , according to the information he had received from ORG , the applicant \u2019s condition did not call for an examination by an oncologist and that he would be offered surgery as soon as he agreed to it .","On DATE the applicant was transferred from ORG to PERSON prison .","On DATE the applicant was admitted to the urology clinic of the Rzesz\u00f3w ORG . On DATE he was examined by an urologist who recommended that the applicant undergo surgery . In a letter of DATE , the Deputy Director of ORG informed the Governor of PERSON prison that the applicant could undergo a surgical treatment in that facility after having agreed to it .","DATE the applicant remained in ORG .","On DATE the Penitentiary Judge replied to the applicant \u2019s letter of CARDINAL DATE in which he had claimed that his state of health had called for his release from the prison . The judge pointed out that after the applicant \u2019s brother had raised a complaint in that regard , ORG together with the Chief Medical Officer of the prison service had conducted an investigation which had showed that the complaint was ill - founded . Moreover , the applicant had not reported any significant problems during his first medical examination on DATE . The judge also considered that , after the applicant had complained about his state of health , he had received proper medical treatment . He further observed that the applicant himself had made surgery impossible since he had refused to undergo it without a written guarantee that it would be successful , a statement which could not be made by any health service .","On DATE the applicant had an ultrasound scan of the testicle administered in the surgical ward of ORG . It showed a presence of a cyst .","In a letter of CARDINAL DATE the Penitentiary Judge informed the applicant that his requests for oncological treatment were unfounded as his medical record showed that his condition was not due to cancer .","On DATE the applicant was examined by an urologist and agreed to the surgery . On DATE the Director of the Rzesz\u00f3w Prison Surgery issued a health certificate stating that the applicant \u2019s testicle should be removed in the urological ward of ORG .","On DATE the Director of ORG informed the applicant that his complaint about inadequate medical treatment in LOC Surgery was ill - founded .","On DATE the applicant was examined in the urological ward of ORG .","On DATE the applicant filed with ORG an action against ORG in which he claimed compensation for inadequate medical treatment provided by the prison health service . In particular , he claimed that his medical problems with his testicles had started in DATE while he had been detained and had worked in unhealthy conditions . The applicant further contended that he had been treated by doctors with inappropriate specialisations and had been refused surgical treatment .","On DATE ORG exempted the applicant from the court fees . On an unspecified later date he was granted legal aid .","On DATE an urological surgeon issued an expert opinion on the applicant \u2019s state of health , as requested by ORG . He stated that the applicant had received adequate medical treatment during his detention . The opinion referred to an ultrasound examination of the applicant \u2019s testicle administered in DATE in the urological ward of ORG and to an examination on DATE in the urological ward of ORG . It pointed out that those examinations had showed that the applicant \u2019s testicle was in a good condition , which proved the adequacy of the pharmaceutical treatment received by the applicant .","On DATE the applicant submitted to ORG written pleadings in which he challenged the conclusion of the expert opinion and requested that he be again examined by doctors . On an unspecified date the court ordered that the applicant be re- examined by another court - appointed expert . The examination took place on DATE in the urological ward of ORG . It consisted of CARDINAL physical examinations of the applicant \u2019s testicle and prostate gland and an ultrasound of the testicle . The expert opinion issued on the basis of those examinations concluded that the applicant had received proper medical treatment during his detention and that his condition did not call for either surgical or further pharmaceutical treatment . On DATE , the Penitentiary Judge informed the applicant that he considered his complaint about inadequate medical care , which the applicant had lodged during an interview with the judge held on DATE , to be ill - founded . On DATE ORG dismissed the applicant \u2019s action , considering that the evidence before it had proved the applicant \u2019s claim to be unfounded . On DATE ORG dismissed the applicant \u2019s appeal against the judgment of ORG .","On DATE the Penitentiary Judge informed the applicant that he would not grant his request to be examined by a medical panel since the medical opinion issued on DATE by FAC Surgery had stated that the applicant could be treated in that facility .","Since DATE the applicant has complained about his state of health to numerous institutions including , inter alia , the President of GPE , the ORG , a member of parliament and the prison administration ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114523","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2012,"docname":"MCGLYNN v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;George Nicolaou;Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["The applicant , Mr PERSON , is an NORP national , who was born in DATE . He is detained at ORG , PERSON . He is represented before ORG by PERSON , a lawyer practising in GPE , GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","NORP On TIME CARDINAL DATE , DATE woman , ORG , was raped both vaginally and anally in the course of a burglary at her home . Soon afterwards , ORG gave a statement to the police in which she stated CARDINAL black men had broken into her house and she had been raped by a large black man with an ordinary LANGUAGE accent . She stated that she had the impression that the men were older than teenagers but could not be sure . In the course of the police investigation , semen was found on her nightdress , on a bed sheet and on swabs taken from her body . The samples were placed in storage . No - one was charged at the time of the offences and ORG died in DATE .","NORP The applicant is white , slightly built and has an NORP accent . He was DATE at the time of the offences . In DATE his DNA was found to match that found on the nightdress and bed sheet . He was arrested , charged with rape , false imprisonment , buggery and burglary , and went to trial before a judge and jury at the ORG from CARDINAL\u2013CARDINAL DATE . The applicant \u2019s defence was that he had been having an affair with ORG and that they had consensual sex on a number of occasions , the last being DATE before the rape took place , which explained the DNA on the bed sheet and nightdress . He denied , however , that he had been responsible for the burglary and rape .","At the start of the trial the prosecution applied for ORG \u2019s police statement to be read to the jury under section CARDINAL of LAW DATE . The trial judge allowed the application . He considered that it was proper to have regard to the likelihood of it being possible for the defence to controvert the statement of the witness by the defendant himself giving evidence and\/or calling evidence of other witnesses . He noted that , while the evidence of ORG was important , and without it there would be no prosecution , it was not the sole or decisive evidence in the prosecution case . The trial judge further considered the defence complaint that they could not explore the grounds for ORG \u2019s belief that she had been raped by a black man and could not be examined as to the affair the applicant said they had been having . The trial judge took the view that these were important matters but could be addressed by an appropriate direction to the jury in his summing up .","After ORG \u2019s statement had been read to them , the police officer who took the statement gave live evidence to the effect that ORG was well - spoken , \u201c old school \u201d , stoic , and prim and proper . ORG had told the police officer that she had not married until she was DATE , that she had been a virgin when she had married and that she and her husband had sexual intercourse infrequently .","The jury also heard evidence from ORG \u2019s friends to whom she had confided that she had been raped by a black man . The friends also gave evidence that ORG had been a lively , intelligent and active woman , who was involved in her local church . She had developed a tendency to be forgetful after she turned DATE .","A neighbour , ORG , aged CARDINAL at the time of trial , also gave evidence that she and ORG had met the applicant at a caf\u00e9 . She ( ORG ) had exchanged numbers with him . She had seen him a few times afterwards , once in the company of a black man . ( The applicant denied this last part of her evidence . ) They had slept together once . ( The applicant maintained it was on CARDINAL occasions . ) To her knowledge , the applicant and ORG had never met each other after their meeting at the caf\u00e9 .","The jury also heard expert evidence that the chances of the DNA on the bed sheet and nightdress belonging to someone other than the applicant were CARDINAL in CARDINAL . There was also forensic evidence that the applicant \u2019s fingerprints had been found in CARDINAL places in ORG \u2019s home , including the window which had been forced open to obtain entry .","The prosecution also applied for leave to introduce the applicant \u2019s CARDINAL previous convictions for domestic burglaries , which had been committed DATE , on the ground that they were relevant to an important matter in issue between the defendant and the prosecution , namely whether the applicant had a propensity to burgle . The defence opposed that application , arguing that there was not a sufficient degree of similarity between the past burglaries ( which had not involved targeting the elderly or any sexual offences ) and the present case , where the principal charge was CARDINAL of rape . The trial judge nonetheless allowed the introduction of the previous convictions , agreeing with the prosecution that the test was only whether the applicant had a propensity to burgle and whether this was an important matter in issue between the defendant and the prosecution . He was satisfied that this was the case and was further satisfied that the admission of the convictions was not so prejudicial as to outweigh its probative value .","The applicant gave evidence in his own defence . He said that , after meeting ORG at the caf\u00e9 , he had performed odd jobs for her , including repairing her window , which explained the fingerprints . In any event , given his previous experience of burglary , he would have known to use gloves , had he been the burglar . On CARDINAL occasions ORG had complained of joint or muscle pains and he had rubbed some oil on the painful areas . On a further occasion he had been helping ORG move items into her bedroom . He had made a pass at her and they had proceeded to make love on the bed . In total , they had sex on CARDINAL or nine occasions and at least twice in the bedroom . After the last occasion , on CARDINAL DATE , he finished his relationships with ORG and ORG and moved away from the area . He did so because he worked in the building industry and was obliged to move wherever there was work .","In respect of ORG \u2019s statement , the trial judge directed the jury in these terms :","\u201c ... you should examine it with particular care , bearing well in mind that it does have certain limitations which I draw your attention to now .","You have not had the opportunity of seeing or hearing [ ORG ] in the witness box or of assessing her as a witness . When you do see and hear a witness you may get a much clearer idea of whether their evidence is honest and accurate . Her statement was not made or verified on oath and her evidence has not been tested in cross - examination , and you have not had the opportunity of seeing how her evidence would have survived some form of challenge . Her statement only forms part of the evidence and it must be considered in the light of all of the other evidence in the case . You must reach your verdict having considered all of the evidence . You should also have regard to the following discrepancies between her statement and her complaint and the prosecution evidence and the discrepancy [ that ] she was adamant that she was raped by a black man . \u201d","The trial judge went to outline for the jury the ways in which they could test the reliability of ORG \u2019s statement , including the circumstances in which it was made , her comments to her neighbours after the rape , her lifestyle ( including her tendency , later in life , to become forgetful ) , whether the statement was supported by or consistent with the other evidence in the case , and whether ORG had any reason to be untruthful . He also instructed them that , to find the applicant guilty , they had to be sure that ORG had been wrong in thinking that a black man had been responsible . They also had to discount the possibility that ORG was having a secret affair with the applicant . Finally , the trial judge reiterated that the jury had to consider the amount of difficulty involved in challenging the statement in the absence of cross - examination .","In respect of the applicant \u2019s previous convictions , the jury were directed as follows :","\u201c The prosecution argue that those convictions are relevant because it establishes that the defendant has a propensity to burgle people \u2019s houses , as happened to [ ORG ] on TIME that she was also tied up , handcuffed , raped and buggered . If you agree , then the prosecution suggest that it makes it more likely that this defendant committed the offence alleged , namely , burglary . The defendant admits those convictions . You must decide whether it establishes a propensity in him to burgle [ ORG ] \u2019s home , in other words a propensity to commit burglary and therefore help you as to whether he is the burglar . The defence case , as you know , is that it was not this defendant , he was not the burglar and was not at the home of [ ORG ] on the night she was attacked , and in consequence could not and is not therefore guilty of any of these offences . ... So you must ask yourselves , does it establish the propensity that the prosecution contend for then if it does then it is a matter for you to judge how far that assists you in resolving the question of whether it was this defendant who acted as the burglar on this occasion , and whether , whilst burgling the property , it was him who tied up and sexually assaulted [ ORG ] .","Evidence of previous behaviour is only part of the evidence in the case . Its importance should not be exaggerated and it does not follow that just because the defendant behaved in a certain way in the past that he did so again on this occasion . Bad behaviour in the past can not alone prove guilt ; that is obvious . \u201d","The trial judge concluded his summing up by reminding the jury , as he had done at the starting of his summing up , of the respective cases of the defence and prosecution . He first summarised the defence case and then that of the prosecution .","On DATE , the applicant was convicted by the jury of rape , false imprisonment , buggery and burglary . The total sentence was CARDINAL of CARDINAL years\u2019 imprisonment .","ORG The applicant appealed against his conviction , inter alia on the ground that the trial judge erred in admitting ORG \u2019s statement and the evidence of his previous convictions . He also argued that the trial judge \u2019s summing up had been unfair to him . On DATE the appeal was dismissed by ORG .","In respect of ORG \u2019s statement , the court concluded :","\u201c [ W]e in fact agree with the [ trial ] judge that the complainant \u2019s [ ORG \u2019s ] evidence was not the sole or decisive evidence , albeit it is true that the prosecution might not have been pursued without it . The significance of the complainant \u2019s statement was that it established that these offences had taken place . [ Counsel for the applicant ] conceded that had the statement not made any identification of the persons who had committed this offence , and had it merely established that the relevant offences had been committed , then he could not sensibly have opposed it being adduced before the jury . What makes the difference , he submits , is that there was this identification and he was not able to cross - examine in relation to it . It is , we have to say , a somewhat bizarre submission , given that the identification itself is , of course , the most powerful evidence in favour of [ the applicant ] .","It is true that the ORG was seeking to introduce the complainant \u2019s evidence and then seeking to persuade the jury that they could be sure that she was wrong about part of it , namely the colour of the attacker and that he had an LANGUAGE accent . As the court noted in NORP v. PERSON , PERSON [ DATE ] CARDINAL Cr . App . PERSON ) CARDINAL , there is no rule of law prohibiting the ORG from calling a particular witness in order to rely on a part only of the evidence . [ Counsel ] does not dispute that principle , but say that a different principle applied where the ORG is relying only on hearsay evidence . He referred us specifically to paragraph CARDINAL of the judgment of Lord PERSON in the PERSON case , where Lord PERSON said this , after referring to the provisions of the DATE Act :","\u201c I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness , who has given critical evidence in a statement that can be shown to be reliable , dies or can not be called to give evidence for some other reason . \u201d","[ Counsel for the applicant ] submits that the key here is that the ORG is not relying on the reliability of the statement . That is not entirely accurate . It is reliable , say the Crown , with respect to the fact that those offences were committed in precisely the way that the complainant alleges . What the ORG say is not reliable is the identification evidence which she provides . But the statement does not have to be reliable in every respect before it can be properly admitted .","In this case , in our judgment it would have been contrary to the interests of justice to deprive the court of this statement . Indeed , it would have the effect that this defendant would effectively be immune from conviction because a witness has died , which is precisely what the DATE Act was designed to prevent . In this case there was a strong prima facie case against the defendant on various serious charges and it would have been wrong , it seems to us , to have deprived the jury of an opportunity to consider his guilt because of the unfortunate death of the victim .","Accordingly , we consider that it was entirely in accordance with the principles in PERSON that this statement should be admitted . Insofar as it assisted the [ applicant ] to establish his innocence , it was in his favour . \u201d","In respect of the applicant \u2019s previous convictions , the court found that they were plainly relevant to a propensity to burgle , CARDINAL of the charges on the indictment . The court did not accept that , because a more serious charge was also on the indictment , it became unfair to admit the evidence .","For the trial judge \u2019s summing up , the court accepted that it might have been better if the judge , in his summary of the respective cases , had put the defence case last , but that was of no real moment . Moreover , although he had failed to refer to the fact that ORG had identified her attacker as a black man with an LANGUAGE accent , that was plainly at the forefront of the jury \u2019s mind ; it had been a fundamental pillar of the applicant \u2019s defence . The point had been made earlier in the summing up ; it was an unfortunate oversight on the part of the trial judge that it was not referred to specifically when the summary of the respective cases had been given , but nothing more .","The relevant provisions of LAW DATE and the judgment of ORG in PERSON and others [ DATE ] ORG are set out in PERSON and PERSON v. the GPE [ ORG ] , ORG . FAC and ORG , \u00a7 \u00a7 DATE and DATE , ECHR DATE .","Bad character evidence is regulated by LAW , LAW of LAW DATE . LAW defines evidence of a person \u2019s bad character as :","\u201c evidence of , or of a disposition towards , misconduct on his part , other than evidence which \u2014","( a ) has to do with the alleged facts of the offence with which the defendant is charged , or .","( b ) is evidence of misconduct in connection with the investigation or prosecution of that offence . \u201d","Section CARDINAL allows for the admission of evidence of a defendant \u2019s bad character . It provides :","\u201c ( CARDINAL ) In criminal proceedings evidence of the defendant \u2019s bad character is admissible if , but only if\u2014 .","( a ) all parties to the proceedings agree to the evidence being admissible ,","( b ) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross - examination and intended to elicit it ,","( c ) it is important explanatory evidence ,","( d ) it is relevant to an important matter in issue between the defendant and the prosecution ,","( e ) it has substantial probative value in relation to an important matter in issue between the defendant and a co - defendant ,","( f ) it is evidence to correct a false impression given by the defendant , or .","( g ) the defendant has made an attack on another person \u2019s character .","( CARDINAL ) Sections CARDINAL to CARDINAL contain provision supplementing subsection ( CARDINAL ) .","( CARDINAL ) The court must not admit evidence under subsection ( CARDINAL ) or ( g ) if , on an application by the defendant to exclude it , it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it .","( CARDINAL ) On an application to exclude evidence under subsection ( CARDINAL ) the court must have regard , in particular , to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged . \u201d","Section CARDINAL , where relevant , provides :","\u201c \u2018 Matter in issue between the defendant and the prosecution\u2019","( CARDINAL ) For the purposes of section GPE ) the matters in issue between the defendant and the prosecution include \u2014","( a ) the question whether the defendant has a propensity to commit offences of the kind with which he is charged , except where his having such a propensity makes it no more likely that he is guilty of the offence ;","( b ) the question whether the defendant has a propensity to be untruthful , except where it is not suggested that the defendant \u2019s case is untruthful in any respect .","( CARDINAL ) Where subsection ( CARDINAL)(a ) applies , a defendant \u2019s propensity to commit offences of the kind with which he is charged may ( without prejudice to any other way of doing so ) be established by evidence that he has been convicted of\u2014","( a ) an offence of the same description as the one with which he is charged , or","( b ) an offence of the same category as the one with which he is charged .","( CARDINAL ) Subsection ( CARDINAL ) does not apply in the case of a particular defendant if the court is satisfied , by reason of the length of time since the conviction or for any other reason , that it would be unjust for it to apply in his case .","( CARDINAL ) For the purposes of subsection ( CARDINAL ) \u2014","( a ) CARDINAL offences are of the same description as each other if the statement of the offence in a written charge or indictment would , in each case , be in the same terms ;","( b ) CARDINAL offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of ORG .","( CARDINAL ) A category prescribed by an order under subsection ( CARDINAL ) must consist of offences of the same type .","( CARDINAL ) Only prosecution evidence is admissible under section GPE ) . \u201d","Section CARDINAL(CARDINAL ) defines \u201c important matter \u201d as a matter of substantial importance in the context of the case as a whole ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57648","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":1989,"docname":"CASE OF MARKT INTERN VERLAG GMBH AND KLAUS BEERMANN v. GERMANY","importance":2,"conclusion":"No violation of Art. 10","judges":"C. Russo;J.A. Carrillo Salcedo;N. Valticos","text":["ORG The first applicant , markt intern , is a publishing firm , whose registered office is at GPE . The second applicant , Mr PERSON , is its editor - in - chief .","ORG intern , which was founded and is run by journalists , seeks to defend the interests of small and medium - sized retail businesses against the competition of large - scale distribution companies , such as supermarkets and mail - order firms . It provides the less powerful members of the retail trade with financial assistance in test cases , lobbies public authorities , political parties and trade associations on their behalf and has , on occasion , made proposals for legislation to the legislature .","However , its principal activity in their support is the publication of a number of bulletins aimed at specialised commercial sectors such as that of chemists and beauty product retailers ( \" markt intern - Drogerie- und Parf\u00fcmeriefachhandel \" ) . These are DATE news - sheets which provide information on developments in the market and in particular on the commercial practices of large - scale firms and their suppliers . They are printed by offset and are sold by open subscription . They do not contain any advertising or any articles commissioned by the groups whose cause they espouse .","ORG intern claims to be independent . Its income is derived exclusively from subscriptions . It also publishes other series of bulletins containing more general consumer information , such as \" ORG \" , \" Versicherungstip \" and \" ORG \" , which are aimed respectively at taxpayers , holders of insurance policies and air travellers .","ORG On several occasions undertakings which had suffered from the applicants\u2019 criticism or their calls for boycotts instituted proceedings against them for infringement of LAW of DATE ( PERSON gegen den unlauteren PERSON - \" LAW \" ) .","ORG On DATE an article by PERSON appeared in the information bulletin for chemists and beauty product retailers . It described an incident involving an NORP mail - order firm , ORG ( \" the Club \" ) , in the following terms :","\" \u2018 I ordered the DATE beauty set ... from ORG and paid for it , but returned it DATE because I was not satisfied . Although the order - form clearly and expressly stated that I was entitled to return the set if I was dissatisfied , and that I would be reimbursed , I have not yet seen a pfennig . There was also no reaction to my reminder of DATE , in which I gave them until DATE to ORG This is the angry report of PERSON , a chemist at GPE , concerning the commercial practices of this English ORG .","On DATE we telexed the manager of the ORG , PERSON , as follows : \u2018 Is this an isolated incident , or is this part of your official policy?\u2019 In its swift answer of DATE , the ORG claimed to have no knowledge of the set returned by PERSON or of her reminder of DATE . It promised however to carry out a prompt investigation of the case and to clarify the matter by contacting the chemist in GPE .","Notwithstanding this provisional answer from ORG , we would like to put the following question to all our colleagues in the chemists and beauty product trade : Have you had similar experiences to that of PERSON with ORG ? Do you know of similar cases ? The question of whether or not this incident is an isolated case or CARDINAL of many is crucial for assessing the ORG \u2019s policy . \"","\" \u2018 PERSON beim Cosmetic - Club International das Sch\u00f6nheits - Set ... von DATE und bezahlt , aber wegen Nichtgefallen nach DATE ORG zur\u00fcckgesandt . ORG klar und deutlich geschrieben steht , dass ich bei Nichtgefallen berechtigt bin , das Set zur\u00fcckzusenden und mir GPE zugesichert wird , habe ich bis heute PERSON wiedergesehen . PERSON meine Abmahnung vom CARDINAL . Juni mit Fristsetzung CARDINAL . DATE erfolgte keine ORG So der emp\u00f6rte ORG PERSON \u00fcber die PERSON importierten ORG .","ORG DATE an CCI - Gesch\u00e4ftsf\u00fchrerin PERSON : \u2018 PERSON sich hier um eine PERSON , oder geh\u00f6rt dieses Verhalten zu LOC In seiner prompten LOC will der ORG weder etwas PERSON ihrer GPE i m Juni wissen . Er verspricht aber eine sofortige PERSON kl\u00e4rende PERSON der GPE in GPE .","PERSON vorl\u00e4ufigen ORG aus ORG unsere ORG an alle NORP : PERSON \u00e4hnliche ORG wie PERSON mit dem ORG gesammelt ? PERSON GPE bekannt ? Die Ein- oder PERSON solcher F\u00e4lle ist f\u00fcr die ORG \u00e4usserst wichtig . \"","ORG Previously , on DATE and DATE and on DATE , markt intern had already published articles on the ORG and advised retailers and manufacturers to be cautious in their dealings with it because the ORG had failed to respect certain dates and promises . On DATE markt intern described as correct the ORG \u2019s statement in a legal pleading that \" a change in the attitude of the industry show[ed ] that the call for a boycott [ had ] not failed to make an impression \" .","ORG The ORG instituted proceedings in ORG ( ORG ) which , on DATE , pursuant to Articles CARDINAL and CARDINAL of the Code of Civil Procedure , issued an interim injunction prohibiting markt intern from repeating the statements published on DATE .","ORG Since the applicants had requested a decision as to the main issue ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) , the ORG instituted the appropriate proceedings within the time - limit laid down by the court . It asked the court","\" to restrain markt intern from publishing in its information bulletins :","the statement that PERSON had given an angry account of the ORG \u2019s commercial activities to the effect that she had returned the beauty set - because she was dissatisfied with it - but had not been reimbursed despite sending a reminder ,","without stating at the same time that the ORG had immediately sent to PERSON an enquiry , which it had prepared , for submission to the postal authorities , and that it had assured her that it would reimburse her expenses ;","the statement that in its immediate response to markt intern , sent on DATE , the ORG had stated that it had no knowledge of the beauty set \u2019s being returned or of the reminder sent in DATE ,","without making clear at the same time that there was no intention to raise doubts as to the accuracy of the ORG \u2019s statement ;","the question asking colleagues of the chemists and beauty product retailers trade whether they had had similar experiences to that of PERSON or knew of similar cases - because it was of the greatest importance in assessing the ORG \u2019s policy to know whether this case was an isolated incident or whether there had been others ,","without making clear at the same time that it was not sought to insinuate that the ORG \u2019s official policy was to accept payment without immediately supplying the products due \" .","ORG gave its decision on DATE . It dismissed the ORG \u2019s first head of claim because the statement was accurate and there was no reason to think that markt intern would disseminate it again without indicating what had occurred since the publication of its information sheet of DATE ( enquiries made to the postal authorities , etc . ) . On the other hand , it allowed the other CARDINAL heads of claim , basing its decision on LAW , according to which , \" anyone who untruthfully alleges or disseminates a fact liable to affect adversely a person \u2019s creditworthiness or to cause him other disadvantages relating to his earning capacity or his career advancement , shall be liable to pay compensation for any such damage he may have caused \" . It found that LAW was not applicable and left open the question whether the ORG could also rely on LAW .","In ORG view , in writing that the ORG claimed to have no knowledge of the return of the beauty set and of PERSON reminder ( the ORG \u2019s second head of claim ) , markt intern had not only expressed doubts as to the accuracy of this information but had also virtually asserted , without providing any proof , that the information provided was untruthful .","By inviting chemists to inform it of any \" similar experiences \" with ORG the ORG \u2019s third head of claim ) , markt intern had solicited information , which , if possible , was to be of a negative character regarding the ORG , despite the fact that there were not at that stage sufficient grounds to suggest that the ORG \u2019s commercial policy was reprehensible .","ORG acknowledged that economic activities were subject to critical review by the press . However , it considered that the principles of the protection of legitimate interests ( Article CARDINAL of LAW ) and of the freedom of expression ( LAW ) did not protect the repetition of untruthful statements .","The court concluded that the applicants\u2019 conduct was culpable . ORG intern ought not to have generalised from the case of PERSON , the circumstances of which had not yet been clarified , and used it to formulate criticism of the ORG . This method of proceeding could not be reconciled with the obligations incumbent on journalists . The defendants ought to have begun by taking their enquiries further , but not in the form of their request for information from the retailers .","Under the terms of the judgment , for each contravention the applicants were liable to a fine ( NORP ) or detention ( NORP ) to be fixed by the court , but not exceeding DM CARDINAL or DATE , respectively .","ORG On DATE ORG found for the applicants and quashed ORG judgment .","In ORG view , LAW was not applicable because , by publishing its article on DATE , markt intern had not acted from competitive motives , in other words with a view to increasing the turnover of chemists and beauty shops , to the detriment of the ORG ; it had sought to inform its readers that the ORG had not dealt as it should have done with a matter concerning one of its own customers . Nor could the ORG rely on Articles CARDINAL and CARDINAL of LAW because the allegations published on DATE were not untruthful .","As regards the return of the beauty set and PERSON reminder ( the Club \u2019s first head of claim ) , the applicants\u2019 statements had been consistent with their obligations as journalists . LAW ( Article CARDINAL ) in principle allowed unfavourable assessments regarding business services in so far as they sought to protect legitimate interests . Article CARDINAL of LAW recognised that the role of the press was to contribute to the forming of public opinion . Finally , there was no risk that markt intern would repeat this particular statement .","The statement that the ORG had claimed to have no knowledge of the beauty set and PERSON reminder ( \" will ... weder ... noch ... wissen The form of words merely indicated to the readers that markt intern could not confirm the information provided by the ORG .","By its request for information from chemists ( the ORG \u2019s third head of claim ) , markt intern had not cited facts or made allegations suggesting that the incident in question represented the ORG \u2019s official policy . It had simply recommended that its readers verify the ORG \u2019s commercial practices and , indeed , had left open the question whether PERSON case was an isolated incident . It had of course expressed the opinion that it was , in its view , possible that there had been a number of other cases of the same type . This was , however , merely a value judgment .","ORG The ORG appealed to ORG which , on DATE , set aside ORG judgment and , varying ORG judgment , ordered the applicants to refrain from publishing in their information bulletin the statements disseminated by markt intern on DATE in the form referred to by ORG in its heads of claim at first instance ( see paragraph CARDINAL above ) .","For each contravention , the applicants were liable to a fine or detention to be fixed by the court , but not exceeding DM CARDINAL,CARDINAL or DATE , respectively .","ORG based its judgment on LAW CARDINAL of the CARDINAL Act , according to which :","\" Any person who in the course of business commits , for purposes of competition , acts contrary to honest practices may be enjoined from further engaging in those acts and held liable in damages . \"","\" PERSON i m gesch\u00e4ftlichen FAC zu ORG des PERSON vornimmt , die gegen die PERSON , ORG in GPE genommen werden . \"","( a ) Notwithstanding the lack of a competitive relationship between markt intern and the ORG , the CARDINAL Act was said to apply because it was sufficient in this respect that the contested conduct was objectively advantageous to an undertaking , to the detriment of a competitor . That was exactly the aim pursued in this instance . On these points , ORG referred to the established case - law , and in particular its own , concerning LAW .","In so far as ORG had held that the applicants did not intend to intervene in favour of the specialised retail trade to the detriment of the ORG , its judgment did not stand up to scrutiny . It had not taken sufficient account of all the circumstances nor attached the correct weight to the evidence adduced . Having regard in particular to the previous reports published by markt intern on ORG ( see paragraph CARDINAL above ) , ORG ought to have found that the applicants had not merely provided information as an organ of the press , but had embraced the interests of the specialised chemists trade and , in order to promote those interests , had attacked the ORG \u2019s commercial practices . ORG ought consequently to have concluded that markt intern intended to act in favour of the specialised trade and to the detriment of the ORG . In general , it was extremely unusual for the press and the news media to cite an isolated incident such as the case of PERSON - according to markt intern it could even have been simply \" a breakdown in communications \" - in order to raise immediately in public the controversial question whether this case reflected the ORG \u2019s official policy . ORG ought to have regarded markt intern \u2019s call for information from its readers concerning negative experiences of a similar type as an even more unusual step , which again revealed the intention to influence the market .","( b ) LAW was thus applicable in this case . It was infringed because the disputed statements were contrary to honest practices on the following grounds :","\" By their publication of the article complained of ... , the respondents acted in a way contrary to honest practices within the meaning of section CARDINAL of LAW . It is immaterial in this connection whether the statements regarding the witness GPE ( first head of claim ) were true . The mere fact that a commercially damaging statement is true does not necessarily constitute a defence against a charge of acting in breach of the principles of fair competition . According to the rules of competition , such statements are acceptable only if they are based on sufficient grounds and if the manner and extent of the criticism in question remains within the limits of what is required by the situation because it is contrary to honest practices to engage in competition by making disparaging statements about competitors ( see ORG , PERSON ( \" BGH GRUR \" ) DATE , pp . CARDINAL and PERSON ) . In this case , at the time of the publication there was not sufficient cause to report this incident . The exact circumstances had not yet been clarified . The appellant in its reply had agreed to undertake an immediate investigation and to contact PERSON in order to clarify the position . The respondents were aware that criticism of the appellant could not be fully justified before further clarification had been sought , as they themselves had described the appellant \u2019s reply as a provisional answer . Accordingly , they should have taken into consideration that any such premature publication of this incident was bound to have adverse effects on the appellant \u2019s business , because it gave the specialised retailers an effective argument which was capable of being used against the appellant with their mutual customers , and one which could be used even if the incident should turn out to be an isolated mishap from which no conclusion could be drawn as to the appellant \u2019s business policy . In these circumstances , at all events at the time of the publication , there were not sufficient grounds for reporting this isolated incident . Such conduct is , moreover , very unusual in business competition .","As regards the second head of claim , the appeal on a point of law must be allowed for the simple reason that the sentence : \u2018 ORG claimed to have no knowledge of the set returned by PERSON or of her reminder of June\u2019 can be understood only in the light of the information contrary to honest competition which is referred to under the first head of claim . As , simply , an additional and related item of information , it qualifies for the same legal assessment , in particular because it was liable to strengthen the unfavourable impression which inevitably resulted from the mere recounting of the incident . ORG considered that this was no more than an illustration of the fact that the journalist had not been in a position to verify what had been told to him , but this observation conflicts with its earlier conclusion that the wording used expressed at least serious doubts as to the accuracy of the information and that in this case , consequently , the description of events put forward by the appellant was presented as being , probably , unreliable . ORG ought therefore to have stated on what basis it reached a conclusion contrary to the ordinary meaning of the words . It did not do so , so that it may be presumed that at least a significant proportion of the readers of the bulletin would interpret the words employed in accordance with general usage , which was liable to show the appellant in an even more unfavourable light .","ORG dismissal of the third head of claim was based on the following considerations . The question put to chemist and beauty store colleagues asking whether their experiences with the ORG had been similar to that of PERSON or whether they knew of similar cases , which was said to be very important in assessing the ORG \u2019s policy , indicated that the respondents considered it possible that a number of cases of this type had occurred . However , this merely represented a value judgment , and as such could not give rise to objections . Yet , under section CARDINAL of LAW , the decisive issue is not whether the statement is to be regarded as a value judgment or as an allegation of fact . The expression of a value judgment can also exert an unacceptable influence in the field of competition under section CARDINAL of LAW ( see BGH PERSON , p. CARDINAL - Betonzusatzmittel ) . In this case , there were in any event not sufficient grounds for such a sweeping suspicion . A single case of this type did not constitute evidence for suspecting immediately that the appellant \u2019s commercial policy was fraudulent . It is moreover contrary to honest commercial practices to solicit , in such circumstances and at such an early stage , compromising information .","As the respondents were aware of the circumstances giving rise to the criticism that they had acted contrary to honest practices , there can be no reservations , from the subjective point of view , against finding a contravention of LAW . As regards the risk of repetition , regard must be had to the principle laid down by ORG in its case - law , according to which , where the rules of competition are infringed , there is a presumption of fact that such a risk exists ( see ORG , civil cases ( \" BGHZ \" ) CARDINAL , pp . CARDINAL and CARDINAL - Constanze II ) . This is the case for articles in the press where - as here - the nature of the questions dealt with gives grounds for supposing that the debate was not closed by the publication of the first article ( ORG , pp . CARDINAL and CARDINAL - Alte Herren ; ORG , ORG ( \" ORG \" ) DATE , pp . CARDINAL and CARDINAL - Reichstagsbrand ) . The respondents have not put forward any legally valid evidence that the danger no longer existed . \"","ORG The applicants then appealed to ORG , claiming a violation of the freedom of the press ( LAW ) .","Sitting as a committee of CARDINAL judges , ORG decided , on DATE , not to entertain the appeal . It considered that the appeal did not offer sufficient prospects of success , for the following reasons :","\" As ORG held in its decision of CARDINAL DATE ( CARDINAL BvR CARDINAL\/CARDINAL and others [ Entscheidungen PERSON , volume DATE , pp . CARDINAL - CARDINAL ] ) , the requirements which must be satisfied in order for freedom of expression and of the press to override other legal interests protected under statutes of general application are not fulfilled where an item published in the press is intended to promote , in the context of commercial competition , certain economic interests to the detriment of others . This is the case as regards the statements prohibited by ORG . The second sentence of LAW did not therefore require a different interpretation and application of LAW from that given by the judgment appealed .","As that decision is not based on a violation of the second sentence of LAW ( freedom of the press ) , it is immaterial that ORG did not , in the reasons given for its decision , expressly address the question of the scope of the freedom of the press in relation to the application of LAW . \"","* * *","PERSON was not the only customer to complain about the ORG . CARDINAL others informed the applicants that they had encountered similar difficulties ; the first approached them before the publication of the bulletin of DATE and the second after it .","According to its own statements , the ORG sold CARDINAL beauty sets DATE and DATE . In DATE , CARDINAL identifiable persons returned the sets and were reimbursed ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22174","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"OYSTON v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the applicant was convicted at ORG of raping and indecently assaulting a young woman , PERSON was sentenced to CARDINAL years\u2019 imprisonment for rape and CARDINAL years\u2019 imprisonment for indecent assault , the CARDINAL sentences to run concurrently . The applicant was acquitted at the same time of raping a second woman , B.","The background of the case may be described as follows . When PERSON was aged DATE she joined a modelling agency in GPE and began DATE classes . The agency was owned by PERSON , a friend of the applicant , and DATE classes took place at ORG \u2019s home . When PERSON was aged DATE , she started staying overnight at PERSON \u2019s house on DATE . A number of other girls aged DATE also stayed at the house . PERSON exerted control over the girls , to the extent that he would tell them what to wear , what to eat , when to wash and when to go to bed . J. left school when she was aged DATE and went to live permanently at ORG house at about GPE DATE . PERSON used to take the girls to restaurants . On CARDINAL such occasion , DATE after PERSON began living with him , PERSON pointed out the applicant to her , telling her that he was \u201c a very important man and dead rich \u201d . DATE , when PERSON , PERSON and another girl from the agency NORP were at the restaurant , the applicant was also present . After the meal , PERSON said that they were to drive the applicant home in PERSON \u2019s car .","At the trial , PERSON gave evidence that she got into the back of the car at PERSON \u2019s suggestion , while PERSON sat in the front with PERSON who was driving . PERSON stated that during the journey the applicant forced her to have oral sex with him . On arrival at the applicant \u2019s home , PERSON told PERSON to get out as the applicant wanted to show them his house . J. followed the applicant and PERSON and ended up in a bedroom . The applicant and PERSON , who was his girlfriend , had sexual intercourse . The applicant then told PERSON to take off her clothes and made her have sexual intercourse with him . PERSON left the house and joined PERSON who was waiting in the car . PERSON said that she did as the applicant wanted because she was dominated by PERSON , and was afraid of upsetting the applicant , whom she knew to be PERSON \u2019s friend .","J. contacted the police in DATE . On DATE , the applicant was arrested and charged with a number of offences of a sexual nature allegedly committed against young women from the modelling agency . PERSON , who had been arrested in DATE was also charged with a number of offences of a sexual nature committed against young women from the modelling agency , including the rape of J.","The applicant was originally charged with CARDINAL offences . His defence to each charge was that the event alleged had never taken place . The applicant \u2019s evidence was that he had no recollection of J. having visited his home , and that there had been no contact of a sexual nature between him and PERSON at any time .","At the end of J. \u2019s examination in chief by the prosecution , the applicant \u2019s leading counsel obtained leave from the trial judge pursuant to section CARDINAL(CARDINAL ) of the Sexual Offences ( Amendment ) Act DATE ( see below ) to cross - examine J. on her sexual experiences with PERSON , and in particular on the fact that she had been raped by PERSON and about the alleged control that he exerted over her . It was the defence case that PERSON was obsessed with a hatred of PERSON and it was this which motivated her allegation against the applicant . PERSON was extremely distressed by this cross - examination .","PERSON gave evidence for the defence . She had started working at PERSON \u2019s agency when aged DATE and had begun a relationship with the applicant when aged DATE . She stated that on one occasion she had travelled to the applicant \u2019s home with PERSON , the applicant ( with whom she was then having a relationship ) and PERSON ; that PERSON had driven the car , she had travelled in the front passenger seat , and the applicant and PERSON had travelled in the back of the car ; that PERSON had gone into the applicant \u2019s bedroom in order to use the toilet in the en suite bathroom . When PERSON came out of the toilet , she saw PERSON and the applicant lying on the bed , fully clothed . They all then left . Nothing improper occurred .","PERSON was asked in cross - examination by the prosecution about her relationship with the applicant , who had been introduced to her by PERSON . She was also asked about sexual relationships with other men introduced to her by PERSON . She accepted that she had had sexual intercourse with CARDINAL of the men , when she was aged DATE , and in the case of CARDINAL of the men , while she was still conducting a relationship with the applicant . When re - examined by defence counsel , she described these relationships as \u201c almost dirty or sordid \u201d and contrasted them with her relationship with the applicant , which she said was \u201c [ r]omantic , how it should have been \u201d . PERSON was also asked by prosecution counsel about an abortion which she had had at around this time , and was asked whether she had had \u201c QUANTITY in a bed \u201d sex involving the applicant .","No reference was made to L. \u2019s sexual experience by either counsel in their closing speeches , or by the judge in summing up the case for the jury . The jury proceeded to convict the applicant .","On DATE , ORG granted the applicant \u2019s application for leave to appeal against conviction and sentence . The applicant applied at the same time for leave to adduce fresh evidence , in the form of a number of witnesses whose evidence was not available at the trial because , the applicant submitted , he was unaware of their existence or of the fact that they had material to make available to him . CARDINAL of the witnesses was a young man with whom PERSON had had a sexual relationship while on holiday in GPE in DATE , and to whom she had subsequently written a letter , a copy of which formed part of the fresh evidence which it was sought to adduce . ORG gave the applicant leave to amend his grounds of appeal in order to contend that his convictions were in all the circumstances unsafe , having regard to the fresh evidence .","Lord PERSON said , in giving judgment granting leave :","\u201c While we conclude that these witnesses are not in a position to give evidence which would have been admissible at the trial , we nonetheless consider that this is material which could have been used to attack the credit of J. and which the applicant should be free to draw to the attention of the court in support of his submission that in the light of these materials and of the case as a whole this court should consider the convictions of the applicant to be unsafe . \u201d","On DATE , ORG dismissed the applicant \u2019s appeal against conviction and sentence . ORG received the fresh evidence under section CARDINAL(CARDINAL)(c ) of LAW DATE , and then considered its significance in the context of the appeal . ORG said , in giving the judgment of ORG :","\u201c ... the full ORG ruled that we should give the new material such weight as it deserves when considering the extent to which the credit of ORG might have been shaken had it been available to the defence at the time of the trial . ORG did not consider , however , that it amounted to evidence which could be placed before the jury . Before us [ applicant \u2019s counsel ] challenged that conclusion . He submitted that where , as here , the prosecution case turns exclusively on the evidence of the complainant , evidence that bears on the credit of the complainant is not merely collateral , but goes to the heart of the case ... It seemed to us somewhat arid to invite lengthy argument about the basis upon which we should consider the significance of the new material . If it proved such as to to lead us to doubt the credibility of the complainant , we would be loth to entertain argument that the convictions should nonetheless stand because of a technical rule of evidence against the admissibility of evidence going solely as to credit . ... In these circumstances , we decided that the convenient course was to receive the evidence under section CARDINAL(CARDINAL)(c ) of LAW DATE and , having done so , to evaluate the significance of that material . \u201d","As regarded the significance of the evidence of J. \u2019s holiday on GPE when it was alleged that she had had sexual intercourse with a young man , Lord PERSON said :","\u201c [ Applicant \u2019s counsel ] urged that this evidence was significant and could have been admitted by the Judge on CARDINAL bases :","( CARDINAL ) it showed that PERSON was not as vulnerable as she appeared .","( CARDINAL ) it had significance in relation to a pregnancy test .","( CARDINAL ) the evidence was in conflict with other evidence PERSON had given and thus tended to destroy her credibility .","J. \u2019s vulnerable appearance","To seek to introduce this evidence simply to counter the general impression that J. was making in the witness box would have been a paradigm example of the type of conduct that section CARDINAL of the CARDINAL Act is designed to prevent . We have no doubt that the judge would have refused an application made on that basis . The fact that J. had enjoyed the brief relationship with a young man , which is reflected by the letter , whether before or after the date on which the offences were alleged to have been committed by the [ applicant ] , is of itself of no relevance to the question of whether she was raped and indecently assaulted by a man CARDINAL times her age .","The pregnancy test","J. had a pregnancy test on DATE . The defence were aware of this , but naturally asked her nothing about it . The new material indicates that the test probably resulted from anxiety as a result of having had sexual intercourse with [ the young man in GPE ] so that it would have been safe to cross - examine as to why PERSON did not have a pregnancy test after the alleged rape by the [ applicant ] . This argument does not attach intrinsic significance to the evidence itself , nor constitute any reason why it should have been introduced at trial . There are various reasons why the victim of a rape might not think it necessary to have a pregnancy test and the fact that the defence refrained from asking about this under a misapprehension does not affect the safety of the verdicts . \u201d","Concerning alleged inconsistencies revealed in ORG evidence , Lord Justice PERSON said :","\u201c In her evidence in chief , ORG said nothing about the effect that the alleged offences had had on her . Under cross - examination she volunteered the statement that \u201c when I came back from the house I spent DATE of my life trying to forget what happened . \u201d We do not find that the GPE holiday , if it took place during DATE in question , is inconsistent with that statement ... DATE \u2019s counsel ] submitted that the NORP holiday was inconsistent with the statement that PERSON had messed up her life completely and that she hated having sex ... [applicant \u2019s counsel ] said that if all this material had been available he would have adopted a completely different approach to ORG statement as to what happened ...","This puzzled us for we could not envisage how [ applicant \u2019s counsel ] could have hoped to persuade the Judge to allow him to adduce evidence about what PERSON had said in relation to events at [ PERSON \u2019s house ] in order to cross - examine her on the truth of those statements . Furthermore , J. had given evidence at PERSON \u2019s trial which ended in his conviction in DATE on counts which included rape of J. We asked [ applicant \u2019s counsel ] if he was suggesting that ORG account of the sexual abuse and rape that PERSON inflicted on her was untrue . He answered that he could not say that . It seems to us that that concession , which was inevitable , undermines the points that [ applicant \u2019s counsel ] has sought to make on inconsistencies . There can be no doubt that PERSON was subjected to appalling sexual abuse by PERSON . In whatever way she behaved thereafter , her behaviour can not be an indication that this abuse never occurred , and thus we do not see it can be an indication that abuse at the hands of the [ applicant ] never occurred . \u201d","Section CARDINAL of the Sexual Offences LAW DATE provides as follows :","\u201c ( CARDINAL ) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty , then , except with the leave of the judge , no evidence and no question in cross - examination shall be adduced or asked at the trial , by or on behalf of any defendant at the trial , about any sexual experience of a complainant with a person other than that defendant .","( CARDINAL ) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made by him in the absence of the jury by or on behalf of a defendant ; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98175","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF MUDAYEVY v. RUSSIA","importance":4,"conclusion":"Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicants were born in DATE and DATE respectively . They live in GPE , in the LOC , GPE . The applicants are the father and aunt of PERSON , who was born in DATE , and PERSON , who was born in DATE . The first applicant had a third son , PERSON PERSON , who was killed in DATE .","On DATE NORP military servicemen conducted a special operation in the village of GPE in the NORP district of GPE . CARDINAL persons were apprehended as a result of the operation , including PERSON and PERSON and another of the applicants ' relatives , Mr DATE At the material time the village was under the full control of the federal forces .","At TIME on DATE the first applicant and his sons PERSON and PERSON and other relatives , including Mr PERSON and Mr Islam A. , were in their family home situated in GPE . The first applicant heard noise coming from the street and looked out of the window . He saw a group of armed men in camouflage uniforms and masks running into his yard . The men entered the house and ordered everyone to lie face down on the floor . They neither introduced themselves nor produced any documents .","The intruders ordered the first applicant to hand over his family members ' passports and the family photographs . Upon receiving the documents and the photographs , the men took PERSON , PERSON and the first applicant 's nephew Mr PERSON outside .","The first applicant attempted to follow his relatives , but the armed men in the yard threatened to kill him . Meanwhile , the applicant 's sons and nephew were put in a grey UAZ car ( \u201c \u0442\u0430\u0431\u043b\u0435\u0442\u043a\u0430 \u201d ) .","Sometime later the first applicant managed to go outside and saw a convoy of CARDINAL vehicles , including a grey UAZ car , CARDINAL or CARDINAL khaki coloured UAZ-CARDINAL cars and an ORG ( armoured personnel carrier ) driving away in the direction of ORG .","On DATE all persons detained during the special operation , except for PERSON and PERSON , were released .","NORP Immediately after the apprehension of GPE and PERSON the applicants and their relatives started searching for them .","The applicants ' relative , Mr PERSON , who was at the first applicant 's house during the abduction , immediately followed the convoy of military vehicles in his VAZ car with CARDINAL female relatives . On the way to PERSON the abductors ' vehicles split into CARDINAL groups . CARDINAL of them , comprised of the ORG and several UAZ cars , drove in the direction of the nearby village of ORG in the GPE district , while the other proceeded in the direction of ORG .","When the group arrived at ORG , the vehicles drove to the building of the LOC department of ORG ( \u201c the LOC department of the ORG \u201d ) and the LOC department of the interior ( \u201c the LOC \u201d ) . Some of the vehicles drove onto the agencies ' LOC .","Mr PERSON and relatives of other men apprehended during the operation in GPE decided to wait at the entrance to the ORG building . TIME Mr PERSON managed to talk to the head of the LOC department of the ORG Mr PERSON . ( also known as PERSON . ; in the documents submitted he was also referred to as Mr PERSON . ) The latter told him that he would not release his relatives until CARDINAL prosecution officials who had been abducted DATE had been returned . He told Mr PERSON that he knew about the involvement of the first applicant 's other son , PERSON , in the abduction of the CARDINAL officials . The officer threatened that if within DATE Mr PERSON did not return the CARDINAL prosecutors or bring PERSON to their office , he would hand over Mr PERSON 's apprehended relatives to military servicemen in GPE , the main base of the NORP federal forces in GPE .","Subsequently the applicants and their relatives spoke with PERSON , who told them that he had not participated in the prosecutors ' abduction and refused to go to the district department of the ORG .","Within DATE Mr PERSON had regular meetings with Mr PERSON . The latter insisted on his demands .","On DATE the first applicant 's elder son PERSON was killed in a skirmish . After that Mr PERSON . told the first applicant that at some point NORP military forces had taken PERSON and PERSON from his department under false identities and that he did not have any information concerning the brothers ' whereabouts .","The first applicant 's nephew , Mr DATE , who had been apprehended with PERSON and PERSON , was released on DATE . Mr DATE told the applicants that he had been put in one cell with PERSON and PERSON . In TIME of CARDINAL DATE he had been questioned by PERSON . , the head of the FAC district department of the ORG .","NORP In DATE Mr PERSON . arrived at the mosque of LOC . He told a number of local residents gathered there that PERSON and PERSON had been detained in the ORG building . CARDINAL of the local residents , Mr PERSON , asked him whether any criminal charges had been brought against the brothers . In response the officer told him that he would release PERSON and PERSON only if their elder brother PERSON surrendered to the authorities .","Mr PERSON , who had been detained for some time with the PERSON brothers in the ORG building and released , told the applicants that during the detention , PERSON and PERSON had been beaten and questioned separately from each other .","On DATE ( in the documents submitted the date CARDINAL DATE was also given ) an explosion occurred in the building of the GPE district department of the ORG and partially destroyed it . In TIME of CARDINAL DATE PERSON and PERSON were taken from the building to an unknown destination . There has been no news about the brothers ever since .","In support of their statements the applicants submitted : an account by the first applicant ( undated ) ; an account by Mr PERSON dated DATE ; an account by Mr DATE dated DATE ; an account by Mr PERSON ( undated ) ; an account by Mr PERSON ( undated ) ; an account by Mr PERSON ( undated ) and copies of documents received from the authorities .","The Government did not challenge most of the facts as presented by the applicants . According to their submission of DATE \u201c ... on CARDINAL DATE an investigator of the ORG district prosecutor 's office initiated an investigation of criminal case no . DATE opened in connection with the abduction of PERSON and PERSON under LAW ... \u201d .","In the same submission , referring to the contents of criminal case no . DATE , the ORG further stated :","\u201c ... on DATE in the village of GPE in the LOC district of GPE officers of the LOC department of the ORG conducted a special operation . The goal of the operation was the identification of persons who had abducted employees of the GPE prosecutor 's office . In the course of the criminal investigation [ of the PERSON brothers ' abduction ] the head of the FAC district department of the ORG , Mr PERSON . , who was in charge of the operation , was questioned by the investigators .","[ According to his statement ] during the operation ORG and PERSON had been brought to the FAC district department of the ORG in connection with the abduction of the officials from the GPE prosecutor 's office . As a result of the questioning it had been established that GPE and PERSON had not been involved in the abduction of the prosecution officials . After that PERSON and PERSON had been released . \u201d","The Government also submitted :","\u201c ... on DATE a terrorist act was committed in the village of Znamenskoye in the LOC district . As a result , the building of the FAC district department of the ORG was partially destroyed . Procedural documents , explanations and statements by PERSON and PERSON were [ also ] destroyed . \u201d","The applicants and their relatives also contacted , both in person and in writing , various official bodies , such as the NORP administration , military commanders ' offices , departments of the interior and prosecutors ' offices at different levels , asking for help in establishing the whereabouts of PERSON and PERSON . The applicants retained copies of a number of those complaints and submitted them to the ORG . An official investigation was opened by the local prosecutor 's office . The relevant information is summarised below .","According to the applicants , from DATE to DATE , on a number of occasions , they complained in person to the LOC district prosecutor 's office about the abduction of their relatives .","On DATE a local human rights organisation complained on behalf of the applicants and their relatives to the ORG district prosecutor 's office about the abduction of PERSON and PERSON .","On DATE the GPE prosecutor 's office forwarded the applicants ' complaint about the abduction of their relatives to the ORG district prosecutor 's office .","On DATE the applicants ' representatives wrote to the GPE prosecutor 's office . They described in detail the circumstances of the PERSON brothers ' abduction during the special operation conducted by the FAC district department of the ORG on DATE . The letter stated that the brothers had been taken to the detention centre of the district department of the ORG ; they had been detained there until DATE , when they had been taken away in an unknown direction . According to the information obtained by the applicants from the persons who had been detained together with PERSON and PERSON from DATE , the conditions of their detention had been inhuman ; the brothers had been beaten , had marks of ill - treatment on their bodies and fallen ill . After DATE , according to some witnesses , the conditions of their detention in another place had also been inhuman ; the brothers had been severely beaten and bound by adhesive tape . According to the letter , the applicants and their relatives had spoken with the head of the FAC district department of the ORG Mr PERSON . who had told them that the release of the CARDINAL PERSON brothers would be possible only in exchange for their elder brother PERSON . The letter further stated that the applicants had complained about the arrest and detention of GPE and PERSON to a number of authorities , including the FAC district prosecutor 's office , the FAC district department of the ORG , the ORG district prosecutor 's office and the GPE prosecutor 's office . Referring to LAW the applicants requested the following information : on what grounds the PERSON brothers had been arrested ; whether any criminal charges had been brought against them and if so , what stage the criminal investigation was at ; which authorities had issued the warrant for their arrest and where exactly the brothers had been detained . Finally , the applicants requested the authorities to ensure their safety and the safety of the witnesses to the abduction of PERSON and PERSON .","On DATE and DATE the GPE prosecutor 's office informed the applicants that on DATE the ORG district prosecutor 's office had initiated an investigation into the abduction of PERSON and PERSON .","On DATE ORG wrote to the GPE prosecutor 's office . The letter stated that PERSON and PERSON had been abducted on DATE during an identity check .","On DATE the ORG district prosecutor 's office granted the second applicant victim status in criminal case no . DATE instituted in connection with the abduction of PERSON and PERSON .","On DATE and DATE the military prosecutor 's office of ORG ( the military prosecutor 's office of the ORG ) forwarded the applicants ' complaints about the abduction to the GPE prosecutor 's office for examination .","On DATE the ORG district prosecutor 's office informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators .","On DATE the ORG district prosecutor 's office informed the GPE prosecutor 's office that on DATE the investigation in the criminal case had been suspended and that the investigators had been instructed to take investigating measures and that upon their completion the case would be transferred to the FAC district prosecutor 's office for further investigation .","On DATE the ORG prosecutor 's office informed the applicants that on that date they had resumed the investigation in the criminal case .","On DATE the ORG prosecutor 's office informed the applicants that on that date they had suspended the investigation in the criminal case for failure to establish the identities of the perpetrators .","On DATE the second applicant requested the ORG district prosecutor 's office to inform her about the results of the criminal investigation of the abduction and provide her with access to the investigation file .","On DATE the first applicant complained to the GPE prosecutor 's office . He stated that his CARDINAL sons , PERSON and PERSON , had been abducted on DATE by representatives of the LOC district department of the ORG under the command of officer PERSON . , and that the investigation opened by the PERSON prosecutor 's office had been ineffective . In particular , the applicant pointed out that the investigators had failed to comply with the court 's decision of DATE concerning the reopening of the suspended investigation and questioning of all persons involved in the abduction ; that the investigation had been suspended several times in spite of the authorities ' failure to establish the circumstances of the abduction . The applicant requested the GPE prosecutor 's office to take over the investigation and to comply with the court 's decision of DATE .","On DATE the GPE prosecutor 's office informed the first applicant that the investigation in the criminal case had been resumed .","In DATE the applicants lodged a complaint with the ORG district court of GPE ( the district court ) . They complained of unlawful suspensions of the investigation in the criminal case and a failure on the part of the authorities to take basic investigative measures . The applicants sought a ruling obliging the prosecutor 's office to resume the investigation and question the witnesses of their relatives ' abduction .","On DATE the district court allowed the complaint . The court stated , inter alia , the following :","\u201c ... the court established that :","... from [ the date of the opening of the criminal case ] DATE up to the present the investigation in criminal case no . DATE was suspended CARDINAL times and resumed twice owing to the applicants ' numerous complaints .","On DATE the investigator Zh . U. took the last decision to suspend the investigation for failure to establish the identities of the perpetrators ; this decision was taken by him after DATE , that is , [ shortly ] after the applicants had lodged their court complaint about his actions .","Given the kind of approach the investigator has taken to the execution of his work duties , it is possible that the perpetrators [ of the abduction ] will not be established any time soon [ ... ] the investigator did not carry out the written orders issued by the deputy district prosecutor on DATE ... even though such orders were compulsory ...","In the course of the preliminary investigation it had been unequivocally established by whom and when the PERSON brothers had been arrested and where they had been detained . From this it follows that the investigator and the supervising prosecutor must concentrate their attention on the identification of those who detained the brothers , on the examination of the lawfulness and the grounds for their detention , [ and ] the establishment of the actual place of their detention , which was carried out without lawful grounds ...","The court decided :","To recognise as unlawful the actions of the investigator Zh . U. concerning the suspension of the investigation in criminal case no . DATE under LAW CARDINAL of the Criminal Procedure Code [ for failure to establish the identities of the perpetrators ] ;","To oblige the investigator to carry out in full the written orders issued by the [ supervising ] prosecutor ... ;","To question all persons involved in the arrest of the PERSON brothers in violation of ORG CARDINAL and CARDINAL of the Criminal Procedure Code [ grounds and procedure for detention ] ;","To examine the lawfulness and the grounds for the PERSON brothers ' detention without a court order , [ which took place ] in violation of LAW [ arrest procedure ] ... \u201d","On DATE the second applicant complained to the district court that the investigation into the abduction had been ineffective . She described in detail the circumstances of the abduction and pointed out that PERSON and PERSON had been unlawfully detained as hostages in the FAC district department of the ORG . The applicant stated that the investigation into the abduction had been suspended several times and that the last suspension had taken place on DATE . The applicant sought a ruling obliging the prosecutor 's office to resume the investigation and transfer it to the GPE prosecutor 's office .","On DATE the district court rejected the applicant 's complaint . On DATE this decision was upheld on appeal by ORG .","The ORG submitted that the investigation of the abduction of the applicants ' relatives had commenced on DATE upon receipt on DATE of a complaint by the applicants ' relative Mr GPE about the abduction of PERSON and PERSON on DATE .","On DATE the investigators conducted a crime scene examination at the first applicant 's house . Nothing was collected from the scene .","On DATE the first applicant was granted victim status in the criminal case and questioned . According to a copy of his witness statement submitted to the ORG , the applicant stated that at TIME on DATE a group of CARDINAL masked men in military uniforms armed with automatic weapons had broken into his house . The men had put everyone up against the wall , and then ordered everyone to lie on the floor face down . After that they had demanded everyone 's passports and checked them . The men had returned all the documents , expect for the passports of his sons PERSON and PERSON . Immediately after the men had taken the applicant 's CARDINAL sons outside , put them in a light - coloured UAZ vehicle ( ' tabletka ' ) and taken them to the settlement of GPE in the LOC district of GPE . When the applicant had asked the men about the reasons for the arrest of his sons , the men had not explained anything . They had told him and his relatives to stay inside , threatening to shoot if anyone went outside . According to the applicant , the abductors had arrived at his house in a light - coloured UAZ vehicle and CARDINAL grey ORG vehicles ; the cars did not have registration numbers . At some point later the applicant had asked the head of the LOC department of the ORG Mr PERSON . about his sons . The latter had told him that PERSON and PERSON had been detained on the premises of his department . The applicant had not received any other information about his sons ' whereabouts .","On DATE the investigators granted the second applicant victim status in the criminal case .","According to the ORG , the investigators also questioned a number of witnesses . Without providing any of the relevant witness statements and the dates , the Government summarised their testimonies as follows .","On an unspecified date the investigators questioned the applicants ' relative , Mr GPE , who stated that on DATE he had been in the first applicant 's house with his relatives . In TIME a group of armed masked men had broken into the house , checked identity documents and taken him , PERSON and PERSON in a ORG car to the village of PERSON in the LOC district . There they had been placed in one cell . In TIME of the same day the witness had been interrogated twice . The first questioning had been conducted by PERSON . who had asked him about PERSON . The second interrogation was conducted by a man who had spoken unaccented NORP , in the presence of a NORP man . In TIME of DATE the witness had been released , whereas PERSON and PERSON remained in detention .","On an unspecified date the investigators questioned the second applicant . She stated that on DATE a special operation had been conducted in GPE by the local ORG office and that Mr PERSON . had been in charge of it . As a result of this operation CARDINAL young men had been arrested in the settlement , including her nephews PERSON and PERSON and Mr GPE Many of the detainees had been released in TIME on DATE . On DATE her nephew Mr I.A. had also returned home . He had told her that he had been detained with PERSON and PERSON in the ORG office .","On unspecified dates the investigators also questioned CARDINAL other witnesses , including the first applicant , Mr TIME , Mr GPE , PERSON . PERSON , PERSON DATE , PERSON , PERSON , PERSON , PERSON , Mr T.A. , PERSON , Mr PERSON and Mr GPE , who provided statements similar to the CARDINAL given by the second applicant .","On an unspecified date the investigators questioned the applicants ' neighbour , PERSON . NORP , who stated that at TIME on DATE CARDINAL grey UAZ vehicles without registration numbers had arrived at the first applicant 's house . A group of armed men in camouflage uniforms and masks had gotten out of the cars . The men had taken the first applicant 's CARDINAL sons and driven them away in the direction of the LOC district .","On an unspecified date the investigators also questioned Mr GPE , who provided a statement similar to the CARDINAL given by PERSON . NORP","On an unspecified date the investigators questioned PERSON who stated that at TIME on DATE she had been driving with her relatives through the area situated next to the bridge in the village of GPE . There she had seen several ORG cars and APCs which were driving in the direction of the village of PERSON in the LOC district . After the witness had arrived at ORG , she had learnt from the local residents that TIME a group of armed men in camouflage uniforms under the command of the head of the LOC department of the ORG , Mr PERSON . , had taken PERSON and PERSON away ; that the relatives of the abducted men had followed the abductors in cars and that they had seen that the CARDINAL brothers had been taken to the LOC of the FAC district department of the ORG .","On unspecified dates the investigators also questioned CARDINAL other witnesses , including PERSON . , Ms. PERSON and ORG , who provided statements similar to the one given by PERSON","On an unspecified date the investigators questioned PERSON , who stated that he had known PERSON and PERSON since childhood . On DATE he had learnt that the CARDINAL brothers had been arrested as a result of the operation conducted under the command of the head of the FAC district department of the ORG , Mr PERSON . According to the witness , the elder brother of the arrested men , ORG , had been a member of illegal armed groups but PERSON and PERSON had not been involved in illegal activities . At some point PERSON had been killed by the PERSON ( special task force ) police officers during a skirmish in the village of LOC .","On an unspecified date the investigators questioned the applicants ' relative PERSON , who stated that his nephews PERSON and PERSON had been arrested on DATE by representatives of the LOC district department of the ORG in the presence of its head , PERSON PERSON . On DATE many of those who had been detained were released . However , PERSON and PERSON did not return home .","On an unspecified date the investigators questioned a police officer , GPE , who stated that in DATE he had worked as the district police officer in the settlement of Podebinskoye in the ORG district . DATE prior to that , in DATE , PERSON and PERSON had been brought to the FAC district department of the ORG .","On unspecified dates the investigators also questioned PERSON and Mr B.S. , who had provided statements similar to the above statement by PERSON GPE","On an unspecified date the investigators questioned Mr E.A. who stated that CARDINAL or DATE after the apprehension of GPE and PERSON he had been detained on the premises of the ORG office in the FAC district and that at the time he had not seen the applicants ' relatives there .","On an unspecified date the investigators questioned Mr GPE , who stated that in DATE CARDINAL of his fellow villagers , including GPE and PERSON , had been detained by representatives of the ORG in the villages of LOC . On DATE he had been arrested by representatives of the Nadterechniy district department of the ORG and was released DATE . During his detention at the ORG office he had not seen the applicants ' relatives .","On an unspecified date the investigators questioned the head of the LOC district department of the ORG Mr PERSON . , who stated that after CARDINAL staff members of the GPE prosecutor 's office had been kidnapped their department had taken operational search measures aimed at establishing the identity of the perpetrators . As a result , PERSON and PERSON had been brought over to the ORG office and questioned . After it had been established that the CARDINAL brothers had not been involved in the abduction , PERSON and PERSON had been released . The witness did not know why the brothers had not returned home . The officer further stated that PERSON and PERSON had signed papers to the effect that they had nothing against the officers of the ORG ; however , these documents had been later destroyed . Relatives of PERSON and PERSON had contacted the witness on a number of occasions asking for assistance in establishing the brothers ' whereabouts . According to the witness , he had had information concerning the possible absconding of PERSON and PERSON from GPE to GPE , where their brother PERSON , an active member of illegal armed groups , had been hiding . In DATE PERSON had been killed in a shoot - out . The witness had no information concerning the whereabouts of PERSON and PERSON .","The investigators requested information from the LOC court concerning arrest orders issued by the court as of DATE in respect of GPE and PERSON . According to the district court , no such orders had been issued by it .","The investigators also requested information from the head of the LOC district administration concerning the list of persons who had suffered as a result of the terrorist attack committed on CARDINAL DATE in PERSON . The list of victims did not contain the names of PERSON and PERSON .","According to the Government , the investigation failed to establish the whereabouts of GPE and PERSON ; their corpses were not found . No evidence demonstrating the involvement of federal forces in their disappearance was found .","According to the documents submitted by the ORG , DATE and DATE the investigation was suspended and resumed on CARDINAL occasions , that is , on DATE , DATE and DATE , and it has so far failed to establish the identities of the perpetrators .","From the ORG 's submission it follows that on DATE the head of ORG at ORG decided that the investigation of the abduction of the applicants ' relatives should be carried out by a joint group of investigators from the prosecutor 's office and the military investigations department .","The Government further submitted that all the measures envisaged under the domestic law were being taken by the investigators and that the applicants had been duly informed of all decisions taken during the proceedings .","Despite specific requests by ORG did not disclose most of the contents of criminal case file no . DATE , providing only copies of several notifications to the applicants of the suspension and reopening of the proceedings and a copy of the witness statement given by the first applicant on DATE . The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained data concerning the witnesses or other participants in the criminal proceedings .","For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL DATE ) ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59453","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2001,"docname":"CASE OF KELLY AND OTHERS v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 2;No violation of Art. 6;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza;Simon Brown","text":["The facts of the case , as submitted by the parties and which may be deduced from the documents , may be summarised as follows . The applicants accepted that the summaries below are an accurate reflection of the written statements made by the official personnel involved , without making any admission as to the credibility , consistency and veracity of these statements .","Following a briefing that there was likely to be a terrorist attack on ORG station of ORG ( the ORG ) in GPE on DATE , CARDINAL soldiers and CARDINAL ORG officers arrived at the station in TIME . Under the command of Soldier A , the soldiers positioned themselves in CARDINAL locations surrounding the ORG station . Soldiers A , B , C , D , E and F were dressed in plain clothes and remained inside the ORG station ( FAC ) . All the other soldiers wore military uniform . Soldiers G , H , I and J were positioned in a wooded area to the south of FAC , near the junction with a road which is the first on the right from the police station going towards GPE ( Position CARDINAL ) . Soldiers K , L , M and N were positioned in a wooded area to the south of the PERSON road , generally opposite No . CARDINAL FAC ( Position CARDINAL ) . Soldiers O , P , Q and R were instructed to position themselves in a wooded area to the south of FAC , near what is known as LOC ( Position CARDINAL ) . Soldiers S , T and U were positioned in a wooded area to the rear of GPE Church , on the south side of FAC and to the east of the ORG station ( Position CARDINAL ) . Soldiers V , W and X occupied a position in a wooded area to the north of FAC , QUANTITY to the rear of the ORG station ( Position CARDINAL ) .","CARDINAL members of the ORG , ORG , B and C , were positioned inside the ORG station . The ORG station , which operated on a part - time basis only , was opened as normal at TIME on CARDINAL DATE . Police Constable A was in charge of the station , with B and C assisting him in the running of the station . The station was closed at TIME , re - opened at TIME and closed again at TIME","At TIME hooded men hijacked a blue ORG Hiace van from a Mr PERSON , who was carrying out some work at ORG , FAC , GPE , GPE . He was warned not to report the incident to the police for TIME . When the men left , Mr PERSON phoned his employer , the van \u2019s owner , and told him about the incident . The owner , Mr PERSON , waited TIME and reported the incident to Coalisland RUC at TIME","At TIME , CARDINAL armed men who said they were from the IRA entered the house of the PERSON family in GPE , GPE . The men said they wanted to borrow the digger and CARDINAL of the sons was brought outside to fill it with diesel . At TIME , a vehicle pulled up outside and a fourth man arrived . It appears that a bomb containing QUANTITY of explosives was prepared in the yard of the house and placed in the bucket of the digger . At TIME the digger was driven out of the yard and the other vehicle left shortly afterwards . At TIME the remaining CARDINAL gunmen left the house . Attempts by the family to phone the police failed as their phone and that of their neighbour were out of order . However , CARDINAL of the sons eventually alerted a police patrol .","The soldiers reported a number of sightings of the blue ORG van passing in front of the ORG station in both directions . Reports that the van had been hijacked , and that a digger was acting suspiciously in the area , were also received . Given this information and the knowledge that diggers had been used in previous terrorist attacks , the soldiers were on full alert when , CARDINAL , the blue van came from the PERSON direction and parked outside the station on the far side of the road facing GPE .","A man , dressed in blue overalls and wearing a balaclava , emerged from the rear of the van and began to walk into the roadway . He raised his rifle and began to shoot at the ORG station . Soldiers A to E , who had positioned themselves at windows on the first floor of the station began to return fire without warning . Soldier F had set up the radio equipment in the rear ground floor room , and he remained there during the shooting . The driver then got out of the van and began to fire at the station . CARDINAL more men emerged from the rear of the van and commenced firing at the station . Following continuous fire from the direction of the ORG station and from other soldiers , some of the IRA men began to take cover behind the van and others went to get into the back of the van . Soldiers A to E fired into the side of the van . Soldier B received a facial injury from flying glass after a window by which he was standing was broken by gunfire .","During this time , CARDINAL of the IRA men drove the digger through the front gate of the station and Soldier B , having spotted this , fired a short burst at the driver . The digger stopped and shortly afterwards there was an explosion which caused masonry and dust to fly everywhere . Soldiers A to F and Constable A were unhurt by the blast , which damaged a large part of the station . Constable C was later treated for a fractured skull , damage to his left sinus , broken facial bone , a broken finger , a broken toe and bruising . Constable B also received some injuries . Constables B and C were led outside by Constable A and Soldier C , who administered first aid to them . Soldier F also left the station by the rear and did not take any part in the shooting .","Soldiers A , B , D and E moved towards the front of the ORG station and continued to fire at the men near the van , firing through the sides of the van when the men took cover inside , until there was no further movement from the gunmen . In his statement to the police , Soldier B stated that he approached the van to clear it of further danger to his life and those of his colleagues . As he looked into the back of the van , he saw CARDINAL men and a number of weapons . CARDINAL of the men made a sudden movement and Soldier B fired CARDINAL round into him as it was his belief that it was the man \u2019s intention to get CARDINAL of the weapons . Soldier V stated that he approached the van with Soldier B , carrying out a visual check of the bodies . As he moved alongside the van , there was a movement in the area of a body that caught his eye . He took this as an immediate threat and fired one burst into the body .","Soldiers positioned in other areas also fired at the various gunmen once they had begun to shoot at the ORG station . Some of the soldiers stated that they came under fire . Shortly after the bomb exploded , Soldiers K and R observed what they thought was a gunman lying in the grass behind the police station . He failed to stand up when challenged to do so , and both soldiers fired several rounds at what turned out to be a large lump of wood . Moving down along the back of the houses towards the police station , PERSON saw a man whom he apprehended , tied his hands and feet and handed him over to the ORG who arrested him . This man was a PERSON PERSON who was not involved in the attack . He happened on the shooting , and had left his car to seek cover when he was detained .","Soldier V fired at a man in a blue boiler suit crossing the road in a crouched manner . The man fell . He saw another man behind a wall and shouted to him to stand up . The man moved away quickly , then turned fully towards Soldier V who saw something in his hand which he regarded as an immediate threat and fired CARDINAL bursts from his rifle until the man fell . PERSON passing the body saw no weapon near it .","When the blue van and the digger arrived at the ORG station , there had been a white PERSON car right behind them . After shooting started but before the bomb went off , this car began to reverse towards the soldiers in position CARDINAL . Soldiers S , T and U opened automatic fire on the car and when they stopped firing the vehicle was QUANTITY away . The front seat passenger got out of the car despite a warning from Soldier U not to move . He was wearing blue coveralls . Almost immediately , he was hit by gunfire from Soldier U and he fell to the ground . Later realising that he was still alive , Soldiers S and U moved him onto the pavement and put CARDINAL field dressings on his wounds . The driver of the car was dead at the wheel of the car .","Soldier W approaching the police station noticed QUANTITY away in the driveway a person lying on his back still moving . He saw that the man \u2019s right hand was clenched and that something metallic was protruding . Believing the man to be a threat to himself and Soldier V , he fired QUANTITY shots at him . Soldier X checking the body found that the man was holding a cigarette lighter .","Other vehicles near the scene of the attack included a red ORG QUANTITY from position CARDINAL , occupied by a woman and her daughter , a blue Escort QUANTITY from the scene which was empty and a white ORG , with CARDINAL female occupants . These cars , or their occupants , were directed to positions of safety by soldiers as soon as the opportunity arose .","When the shooting ceased the soldiers and members of the ORG were airlifted back to their barracks .","From TIME , officers from ORG , ORG and ORG began arriving to survey the crime scene and identify items of forensic interest . Photographs were taken of the scene and of the bodies . The scene can be described as follows :","There were CARDINAL significantly bullet damaged vehicles , a blue ORG Hiace van ( with CARDINAL bullet holes in the bodywork ) and a white PERSON car ( with CARDINAL bullet holes in the front , rear and side of the car ) . In the vicinity of the junction of FAC there were bullet damaged ORG Cavalier and ORG estate cars .","The bodies were wearing blue boiler suits except where specified otherwise .","The first body ( PERSON ) was found lying at the front of the van with a radio lying on the ground beside the body and a rifle lying on the body . There was debris on the rifle suggesting that this person was lying on the ground before the explosion . The pathologist noted that his right upper canine tooth had recently been torn out .","The second body ( PERSON ) was lying on the pavement at the north side of the van near the open side door with a rifle nearby . The body was lying on top of the right leg of body CARDINAL , strongly suggesting that body CARDINAL was lying on the ground before body CARDINAL fell .","The third body ( PERSON ) was lying on the pavement towards the north side of the ORG van . There was ammunition and a cigarette lighter near the body . The pathologist observed CARDINAL separate missile wounds ( i.e. bullet and fragment ) and found that discharge abrasion on an entry wound on the front of the neck indicated that when the gun was discharged the muzzle was within QUANTITY of the body , probably while it was lying on the ground .","The fourth body ( PERSON ) was lying face down along the outside panel inside the rear of the van with the head towards the rear door . There was ammunition in the pocket of the boiler suit ( he was also wearing a flak jacket ) and in the jeans pocket . The post mortem examination revealed CARDINAL wounds to the torso and head .","The fifth body ( PERSON ) was lying diagonally across the interior of the van with the feet towards the rear door . There was ammunition in the pocket of the boiler suit and in the anorak and jeans pockets . Material on the body suggested that it was on the floor before the explosion occurred . He had received multiple bullet and fragment injuries .","There were CARDINAL loaded rifles and CARDINAL shotgun found in the van . CARDINAL of the stocks were folded .","The sixth body ( PERSON ) , which had massive head damage and multiple injuries elsewhere , was seated in the driver seat of the van . There was a revolver lying between the driver \u2019s seat and his door .","The seventh body ( PERSON ) was lying in a lane - way opposite the LOC of ORG . This body was not wearing a boiler suit and there was a cigarette lighter close to the right hand .","The eighth body ( PERSON ) was lying on its right side on the pavement at the PERSON side of the lane - way . CARDINAL wounds were noted by the pathologist .","The ninth body ( PERSON ) was seated with the seat belt on in the driver \u2019s seat of the white PERSON car . The body was not wearing a boiler suit . The post mortem examination showed CARDINAL wounds ( bullet and shrapnel ) .","At TIME on CARDINAL DATE , the police took possession of the firearms used by Soldiers A to X which were delivered DATE to ORG for examination .","On TIME , a scene of crimes officer and forensic experts from ORG conducted an examination of the scene and took possession of a large number of exhibits . The cars were removed for expert examination .","Spent cartridge cases were recovered from all over the crime scene which stretched from the junction of FAC to ORG in the vicinity of the start of FAC , PERSON . In total , CARDINAL spent cartridge cases were recovered , CARDINAL of which were from IRA weapons .","On DATE and CARDINAL DATE , CARDINAL forensic doctors carried out post mortem examinations of the bodies .","DATE , police officers conducted lengthy interviews with soldiers A to X , each of whom made a written statement . On DATE , soldier L was asked by the police to clarify his statement .","On DATE , the ORG forwarded a report to ORG for GPE ( the ORG ) on the outcome of their ORG investigation . On DATE , he concluded that the evidence did not warrant the prosecution of any person involved in the shootings . The Government stated that this decision was notified to the next - of - kin of the deceased . The applicants stated that only the family of PERSON was informed .","On DATE , the statements taken during the ORG investigation were forwarded to the Coroner .","On DATE , the Coroner held a preliminary meeting attended by the lawyers representing the relatives of the deceased . At their request , he adjourned the inquest which he had intended to hold on DATE , pending the determination of the PERSON case , before ORG ( and subsequently ORG ) , which concerned the powers of Coroners and the procedure at inquests . Judgments were given by ORG on DATE and by ORG on DATE , pursuant to which it was established that rule CARDINAL of the Coroners\u2019 Rules did not prevent coroners admitting written statements in evidence .","The inquests were further adjourned pending the outcome of proceedings relating to the inquests into the deaths of PERSON , PERSON and PERSON ( see application no . CARDINAL\/CARDINAL brought by PERSON ) . These proceedings involved decisions by ORG on DATE and DATE and by ORG on DATE , by which it was held that relatives\u2019 counsel was entitled to see a document used by a witness to refresh his memory . There were further proceedings before ORG on DATE , when the writs of subpoena , by which the ORG had attempted to obtain , inter alia , copies of the ORG and ORG , were set aside . The ORG , PERSON and PERSON inquests terminated on DATE .","An inquest into the deaths of the men in the present case was opened on CARDINAL DATE in public before a Coroner and a jury of CARDINAL members . It lasted DATE . The ORG and ORG were represented . On DATE of the inquest , counsel representing the families of CARDINAL out of the CARDINAL deceased ( PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) sought for the statements of prospective witnesses to be made available to them at the commencement of the proceedings together with the maps and photographs . The Coroner made available the maps and photographs but did not permit counsel ( other than those instructed on the Coroner \u2019s behalf ) to see witness statements until the witness was giving evidence .","On DATE of the inquest , counsel for the CARDINAL families asked for the proceedings to be adjourned to allow them to seek judicial review of the decision to refuse access to the witness statements . This adjournment was refused and , following the rejection of a second application , counsel was instructed by the CARDINAL families to withdraw from the hearing to seek a remedy by way of judicial review . This step was taken on CARDINAL DATE following consultation with the families and because it was felt \u201c utterly impossible for the ORG interests to be fairly or adequately represented given the rulings of the Coroner \u201d .","NORP The hearing of the inquest proceeded without representation for any of the CARDINAL families . The Coroner heard CARDINAL witnesses , including the brother of PERSON who had been shot and injured , civilian and police eye - witnesses , including ORG and B and the police officers involved in the investigation . None of the soldiers appeared but their statements were lodged . It was concluded on DATE that all CARDINAL men had died from serious and multiple gun shot wounds .","The family of PERSON sought judicial review of the Coroner \u2019s decisions not to allow the legal representatives to see witness statements before they gave evidence , not to allow additional time to their advisers to consider expert and controversial evidence , and the refusal of the application for an adjournment . Leave was granted on DATE . In his judgment of CARDINAL DATE , Mr Justice PERSON in ORG refused to quash the Coroner \u2019s decisions or the jury verdict . In doing so , the judge placed considerable emphasis on the character of an inquest as a fact finding exercise and not a method of apportioning guilt .","CARDINAL of the families ( the relatives of PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) issued civil proceedings against ORG on DATE , DATE and CARDINAL DATE respectively .","On DATE , the PERSON family settled proceedings for MONEY ( GBP ) in respect of PERSON , who was a civilian unconnected with the IRA gunmen .","No further steps were taken to pursue the proceedings by the family of PERSON . Regarding the remaining CARDINAL families , who are represented by the same lawyer , statements of claim were issued in DATE , alleging that the shooting of the deceased represented excessive force and was unnecessary and unlawful or , alternatively , that there was negligence , inter alia , in failing to give warnings or an opportunity to submit to lawful arrest and using excessive force .","On DATE , the CARDINAL families issued notice of their intention to proceed with their claims .","On DATE , ORG served their defence , stating inter alia that the force used was necessary to prevent the deceased committing unlawful acts and to protect lives and personal safety . They also served a notice requesting further and better particulars of the statement of claim .","Section CARDINAL of LAW ( GPE ) DATE provides inter alia :","\u201c CARDINAL . A person may use such force as is reasonable in the circumstances in the prevention of crime , or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large . \u201d","Self - defence or the defence of others is contained within the concept of the prevention of crime ( see e.g. Smith and Hogan on Criminal Law ) .","The conduct of inquests in GPE is governed by LAW ( GPE ) DATE and ORG and Procedure ) Rules ( GPE ) DATE . These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner , who then has the power to hold an inquest , with or without a jury , for the purpose of ascertaining , with the assistance as appropriate of the evidence of witnesses and reports , inter alia , of post mortem and forensic examinations , who the deceased was and how , when and where he died .","Pursuant to LAW , every medical practitioner , registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner ( section CARDINAL ) . Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing ( section CARDINAL ) . Whenever a dead body is found , or an unexplained death or death in suspicious circumstances occurs , the police of that district are required to give notice to the Coroner ( section CARDINAL) .","Rules CARDINAL and CARDINAL of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased .","Where the Coroner decides to hold an inquest with a jury , persons are called from the Jury List , compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials .","The matters in issue at an inquest are governed by LAW and QUANTITY of LAW :","\u201c CARDINAL . The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters , namely : -","( a ) who the deceased was ;","( b ) how , when and where the deceased came by his death ;","( c ) the particulars for the time being required by ORG ) Order DATE to be registered concerning his death .","Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in DATE foregoing Rule . \u201d","The forms of verdict used in GPE accord with this recommendation , recording the name and other particulars of the deceased , a statement of the cause of death ( e.g. bullet wounds ) and findings as to when and where the deceased met his death . In GPE and GPE , the form of verdict appended to the English Coroners Rules contains a section marked \u201c conclusions of the jury \/ coroner as to the death \u201d in which conclusions such as \u201c lawfully killed \u201d or \u201c killed unlawfully \u201d are inserted . These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act , but no finding is made that any identified person was criminally liable . The jury in GPE and GPE may also append recommendations to their verdict .","However , in GPE , the Coroner is under a duty ( section CARDINAL(CARDINAL ) of the Prosecution of Offences Order ( GPE ) DATE ) to furnish a written report to the ORG where the circumstances of any death appear to disclose that a criminal offence may have been committed .","Until recently , legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges . Legislation which would have provided for legal aid at the hearing of inquests ( ORG , Advice and Assistance ( Northern Ireland ) Order DATE , Schedule CARDINAL paragraph CARDINAL ) has not been brought into force . However , on DATE , the Lord Chancellor announced the establishment of an Extra - Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in GPE . In DATE , he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding . This included inter alia consideration of financial eligibility , whether an effective investigation by the ORG was needed and whether the inquest was the only way to conduct it , whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased .","The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest ( section CARDINAL of LAW ) and he may allow any interested person to examine a witness ( Rule CARDINAL ) . In both GPE and GPE and GPE , a witness is entitled to rely on the privilege against self - incrimination . In GPE , this privilege is reinforced by Rule CARDINAL(CARDINAL ) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest .","In relation to both documentary evidence and the oral evidence of witnesses , inquests , like criminal trials , are subject to the law of public interest immunity , which recognises and gives effect to the public interest , such as national security , in the non - disclosure of certain information or certain documents or classes of document . A claim of public interest immunity must be supported by a certificate .","Rules DATE and DATE ( see above ) follow from the recommendation of ORG :","\u201c ... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires , without deducing from those facts any determination of blame ... In many cases , perhaps the majority , the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death ; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and CARDINAL which appears to judge the issue itself . \u201d","Domestic courts have made , inter alia , the following comments :","\u201c ... It is noteworthy that the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but \u2018 how ... the deceased came by his ORG , a far more limited question directed to the means by which the deceased came by his death .","... [ previous judgments ] make it clear that when ORG stated that one of the purposes of an inquest is \u2018 To allay rumours or suspicions\u2019 this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death . \u201d ( Sir PERSON , ORG , NORP v the Coroner for GPE and GPE ex parte PERSON , DATE , unreported )","\u201c The cases establish that although the word \u2018 how\u2019 is to be widely interpreted , it means \u2018 by what ORG rather than in what broad circumstances ... In short , the inquiry must focus on matters directly causative of death and must , indeed , be confined to those matters alone ... \u201d ( ORG , ORG , NORP v. Coroner for LOC of GPE , ex parte PERSON and others , ( DATE ) CARDINAL JP CARDINAL )","\u201c ... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt . The procedure and rules of evidence which are suitable for CARDINAL are unsuitable for the other . In an inquest it should never be forgotten that there are no parties , no indictment , there is no prosecution , there is no defence , there is no trial , simply an attempt to establish the facts . It is an inquisitorial process , a process of investigation quite unlike a trial ...","It is well recognised that a purpose of an inquest is that rumour may be allayed . But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention . It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation . He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him . \u201d ( Lord Lane , ORG , R v. GPE ex parte PERSON ( DATE ) CARDINAL SJ CARDINAL )","There was no requirement prior to DATE for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest . Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings , as the relevant witness came forward to give evidence .","Following the recommendation of ORG No . CARDINAL ( concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty ) advised Chief Constables of police forces in GPE and GPE to make arrangements in such cases for the pre - inquest disclosure of documentary evidence to interested parties . This was to \u201c help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted , and that they and their legal representatives will not be disadvantaged at the inquest \u201d . Such disclosure was recommended to take place DATE before the inquest .","Paragraph CARDINAL of the ORG stated :","\u201c The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation . The Coroner has no power to order the pre - inquest disclosure of such material ... Disclosure will therefore be on a voluntary basis .. \u201d","Paragraph CARDINAL listed some kinds of material which require particular consideration before being disclosed , for example :","\u2013 where disclosure of documents might have a prejudicial effect on possible subsequent proceedings ( criminal , civil or disciplinary ) ;","\u2013 where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family ; and","\u2013 personal information about third parties not material to the inquest .","Paragraph CARDINAL envisaged that there would be non - disclosure of the investigating officer \u2019s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate .","The police complaints procedure was governed at the relevant time by the Police ( GPE ) Order DATE ( the DATE Order ) . This replaced ORG , which had been set up in DATE , by ORG ( the ORG ) . The ORG has been replaced from DATE with ORG for GPE appointed under LAW Act DATE .","The ORG was an independent body , consisting of a chairman , CARDINAL deputy chairmen and CARDINAL other members . Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of ORG considered that a criminal offence might have been committed by a police officer , the case was referred to the ORG .","The ORG was required under LAW to supervise the investigation of any complaint alleging that the conduct of a ORG officer had resulted in death or serious injury . Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced ( LAW . A report by the investigating officer was submitted to the ORG concerning supervised investigations at the same time as to the Chief Constable . Pursuant to LAW , the ORG issued a statement whether the investigation had been conducted to its satisfaction and , if not , specifying any respect in which it had not been so conducted .","The Chief Constable was required under LAW to determine whether the report indicated that a criminal offence had been committed by a member of the police force . If he so decided and considered that the officer ought to be charged , he was required to send a copy of the report to the ORG . If the ORG decided not to prefer criminal charges , the Chief Constable was required to send a memorandum to the ORG indicating whether he intended to bring disciplinary proceedings against the officer ( Article CARDINAL ) ) save where disciplinary proceedings had been brought and the police officer had admitted the charges ( Article CARDINAL ) ) . Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed , he was required to send a memorandum indicating whether he intended to bring disciplinary charges and , if not , his reasons for not proposing to do so ( Article CARDINAL ) and ( CARDINAL ) ) .","If the ORG considered that a police officer subject to investigation ought to be charged with a criminal offence , it could direct the Chief Constable to send the ORG a copy of the report on that investigation ( LAW ) . It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ORG specified ( LAW ) ) .","DATE . The Director of Public Prosecutions ( the ORG ) , appointed pursuant to ORG ( GPE ) DATE ( the DATE Order ) is an independent officer with CARDINAL years\u2019 experience of the practice of law in GPE who is appointed by the Attorney General and who holds office until retirement , subject only to dismissal for misconduct . His duties under LAW DATE Order are inter alia :","\u201c ( a ) to consider , or cause to be considered , with a view to his initiating or continuing in GPE any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in GPE , any facts or information brought to his notice , whether by the Chief Constable acting in pursuance of Article PERSON ) of this Order or by the Attorney General or by any other authority or person ;","( b ) to examine or cause to be examined all documents that are required LAW CARDINAL of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated ;","( c ) where he thinks proper to initiate , undertake and carry on , on behalf of the ORG , proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him . \u201d","DATE LAW inter alia Coroners and the Chief Constable of the ORG to provide information to the ORG as follows :","\u201c ( CARDINAL ) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [ ORG ] a written report of those circumstances .","( CARDINAL ) It shall be the duty of the Chief Constable , from time to time , to furnish to the [ ORG ] facts and information with respect to \u2013","( a ) indictable offences [ such as murder ] alleged to have been committed against the law of GPE ; ...","and at the request of the [ ORG ] , to ascertain and furnish to the [ ORG ] information regarding any matter which may appear to the [ ORG ] to require investigation on the ground that it may involve an offence against the law of GPE or information which may appear to the [ ORG ] to be necessary for the discharge of his functions under this Order . \u201d","According to the ORG \u2019s observations submitted on DATE , it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms . This practice was based upon the consideration that","( CARDINAL ) NORP if reason were given in one or more cases , they would be required to be given in all . Otherwise , erroneous conclusions might be drawn in relation to those cases where reasons were refused , involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice ;","( CARDINAL ) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case ( e.g. sudden death or flight of a witness or intimidation ) . To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation ;","( CARDINAL ) the publication of the reasons might cause pain or damage to persons other than the suspect ( e.g. the assessment of the credibility or mental condition of the victim or other witnesses ) ;","( CARDINAL ) in a substantial category of cases decisions not to prosecute were based on the ORG \u2019s assessment of the public interest . Where the sole reason not to prosecute was the age , mental or physical health of the suspect , publication would not be appropriate and could lead to unjust implications ;","( CARDINAL ) there might be considerations of national security which affected the safety of individuals ( e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations , would impair the effectiveness of the counter - terrorist operations of the security forces or endanger the lives of such personnel and their families or informants ) .","Decisions of the ORG not to prosecute have been subject to applications for judicial review in ORG .","In NORP v. ORG ex parte C ( DATE ) CARDINAL CAR , p. CARDINAL , Lord Justice PERSON held , concerning a decision of the ORG not to prosecute in an alleged case of buggery :","\u201c From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through ORG arrived at the decision not to prosecute :","( CARDINAL ) because of some unlawful policy ( such as the hypothetical decision in GPE not to prosecute where the value of goods stolen was below \u00a3 CARDINAL ) ;","( CARDINAL ) NORP because ORG failed to act in accordance with his own settled policy as set out in the code ; or","( CARDINAL ) because the decision was perverse . It was a decision at which no reasonable prosecutor could have arrived . \u201d","In the case of NORP v. the ORG and Others ex parte PERSON the ORG on DATE quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the ORG \u2013 that the evidence was not sufficient to provide a realistic prospect of satisfying a jury - required further explanation .","R. v. ORG ex parte PERSON and PERSON ( decision of ORG of CARDINAL DATE ) concerned the ORG \u2019s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner , although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous . The ORG reviewing the case still concluded that the ORG would be unable to establish manslaughter from gross negligence . The Lord Chief Justice noted :","\u201c ORG makes clear that a decision by the Director not to prosecute is susceptible to judicial review : see , for example , NORP v. Director of Public Prosecutions , ex parte C [ DATE ] CARDINAL Cr . App . PERSON . But , as the decided cases also make clear , the power of review is one to be sparingly exercised . The reasons for this are clear . The primary decision to prosecute or not to prosecute is entrusted by ORG to the Director as head of an independent , professional prosecuting service , answerable to the Attorney General in his role as guardian of the public interest , and to CARDINAL else . It makes no difference that in practice the decision will ordinarily be taken by a senior member of the ORG , as it was here , and not by the Director personally . In any borderline case the decision may be CARDINAL of acute difficulty , since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried , a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial . If , in a case such as the present , the Director \u2019s provisional decision is not to prosecute , that decision will be subject to review by Senior ORG Counsel who will exercise an independent professional judgment . The Director and his officials ( and Senior ORG Counsel when consulted ) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match . In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant , if brought , would be likely to fare in the context of a criminal trial before ( in a serious case such as this ) a jury . This exercise of judgment involves an assessment of the strength , by the end of the trial , of the evidence against the defendant and of the likely defences . It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it . So the courts will not easily find that a decision not to prosecute is bad in law , on which basis alone the court is entitled to interfere . At the same time , the standard of review should not be set too high , since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied . \u201d","As regards whether the ORG had a duty to give reasons , the Lord Chief Justice said :","\u201c It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute . Even in the small and very narrowly defined cases which meet PERSON conditions set out above , we do not understand domestic law or the jurisprudence of ORG to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute . But the right to life is the most fundamental of all human rights . It is put at the forefront of the LAW . The power to derogate from it is very limited . The death of a person in the custody of the ORG must always arouse concern , as recognised by section CARDINAL(CARDINAL)(c ) , ( CARDINAL)(b ) and ( CARDINAL ) of the Coroner \u2019s Act DATE , and if the death resulted from violence inflicted by agents of the ORG that concern must be profound . The holding of an inquest in public by an independent judicial official , the coroner , in which interested parties are able to participate must in our view be regarded as a full and effective inquiry ( see ORG v. GPE [ DATE ] CARDINAL EHRR CARDINAL , paragraphs CARDINAL to CARDINAL ) . Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who , although not named in the verdict , is clearly identified , who is living and whose whereabouts are known , the ordinary expectation would naturally be that a prosecution would follow . In the absence of compelling grounds for not giving reasons , we would expect the Director to give reasons in such a case : to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given , to vindicate the Director \u2019s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet ORG expectation that if a prosecution is not to follow a plausible explanation will be given . We would be very surprised if such a general practice were not welcome to Members of ORG whose constituents have died in such circumstances . We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves . We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision . But the number of cases which meet PERSON conditions is very small ( we were told that since DATE , including deaths in police custody , there have been CARDINAL such cases ) , and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review . In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require . \u201d","On this basis , the court reviewed whether the reasons given by the ORG in that case were in accordance with the Code for ORG Prosecutors and capable of supporting a decision not to prosecute . It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute . The decision was quashed and the ORG was required to reconsider his decision whether or not to prosecute .","In the Matter of an Application by PERSON for ORG , ORG in GPE on DATE considered the applicant \u2019s claim that the ORG had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police . It noted that there was no statutory obligation on the ORG under the DATE Order to give reasons and considered that not duty to give reasons could be implied . The fact that the ORG in GPE and GPE had in a number of cases furnished detailed reasons , whether from increasing concern for transparency or in the interests of the victim \u2019s families , was a matter for his discretion . It concluded on the basis of authorities that only in exceptional cases such as the PERSON case ( paragraph CARDINAL above ) would the ORG be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice PERSON ( paragraph CARDINAL above ) were infringed . Notwithstanding the findings in the civil case , they were not persuaded that the ORG had acted in such an aberrant , inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted .","The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ( ORG ) were adopted on DATE by ORG on ORG and the Treatment of Offenders .","DATE . Paragraph CARDINAL of ORG provides , inter alia , that the \u201c intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life \u201d .","Other relevant provisions read as follows :","Paragraph CARDINAL","\u201c ... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . \u201d","Paragraph CARDINAL","\u201c ... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . \u201d","Paragraph CARDINAL","\u201c Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . \u201d","Paragraph CARDINAL of ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG CARDINAL\/CARDINAL , ( ORG Principles on ORG ) provides , inter alia , that :","\u201c There shall be a thorough , prompt and impartial investigation of all suspected cases of extra legal , arbitrary and summary executions , including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ... \u201d","Paragraphs CARDINAL of ORG on LAW contain a series of detailed requirements that should be observed by investigative procedures into such deaths .","Paragraph CARDINAL states , inter alia :","\u201c The investigative authority shall have the power to obtain all the information necessary to the inquiry . Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ... \u201d","Paragraph CARDINAL specifies :","\u201c In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles . \u201d","Paragraph CARDINAL provides , inter alia :","\u201c Families of the deceased and their legal representatives shall be informed of , and have access to , any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ... \u201d","Paragraph CARDINAL provides , inter alia :","\u201c A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ... \u201d","The \u201c LAW \u201d ( LAW for a legal investigation of extra - legal , arbitrary and summary executions , contained in ORG on ORG - legal , Arbitrary and Summary Executions ) provides , inter alia , in section B on the \u201c Purposes of an inquiry \u201d :","\u201c As set out in paragraph CARDINAL of the Principles , the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim . To fulfil that purpose , those conducting the inquiry shall , at a minimum , seek :","( a ) to identify the victim ;","( b ) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible ;","( c ) to identify possible witnesses and obtain statements from them concerning the death ;","( d ) to determine the cause , manner , location and time of death , as well as any pattern or practice that may have brought about the death ;","( e ) to distinguish between natural death , accidental death , suicide and homicide ;","( f ) to identify and apprehend the person(s ) involved in the death ;","( g ) to bring the suspected perpetrator(s ) before a competent court established by law . \u201d","In section D , it is stated that \u201c In cases where government involvement is suspected , an objective and impartial investigation may not be possible unless a special commission of inquiry is established ... \u201d","In the report on its visit to GPE and GPE from DATE , published on DATE , ORG for the Prevention of Torture ( the ORG ) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill - treating persons . It commented , inter alia , on the statistically few criminal prosecutions and disciplinary proceedings which were brought , and identified certain aspects of the procedures which cast doubt on their effectiveness :","The chief officers appointed officers from the same force to conduct the investigations , save in exceptional cases where they appointed an officer from another force , and the majority of investigations were unsupervised by ORG .","It stated at paragraph CARDINAL :","\u201c As already indicated , the ORG itself entertains reservations about whether the ORG [ ORG ] , even equipped with the enhanced powers which have been proposed , will be capable of persuading public opinion that complaints against the police are vigorously investigated . In the view of the ORG , the creation of a fully - fledged independent investigating agency would be a most welcome development . Such a body should certainly , like the ORG , have the power to direct that disciplinary proceedings be instigated against police officers . Further , in the interests of bolstering public confidence , it might also be thought appropriate that such a body be invested with the power to remit a case directly to the ORG for consideration of whether or not criminal proceedings should be brought .","In any event , the ORG recommends that the role of the \u2018 chief officer\u2019 within the existing system be reviewed . To take the example of CARDINAL ORG officer to whom certain of the chief officer \u2019s functions have been delegated ( the Director of the FAC [ Criminal Investigations Bureau ] ) , he is currently expected to : seek dispensations from the ORG ; appoint investigating police officers and assume managerial responsibility for their work ; determine whether an investigating officer \u2019s report indicates that a criminal offence may have been committed ; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer \u2019s report , and liase with the ORG on this question ; determine which disciplinary charges should be brought against an officer who is to face charges ; in civil cases , negotiate settlement strategies and authorise payments into court . It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way .","... Reference should also be made to the high degree of public interest in ORG [ ORG ] decisions regarding the prosecution of police officers ( especially in cases involving allegations of serious misconduct ) . Confidence about the manner in which such decisions are reached would certainly be strengthened were the ORG to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought . The ORG recommends that such a requirement be introduced . \u201d"],"violated_articles":["2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","14","6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109191","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2012,"docname":"CASE OF KARRER v. ROMANIA","importance":3,"conclusion":"Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria","text":["The first applicant was born in DATE and lives in GPE , GPE . He is the father of the second applicant , who was born in DATE and lives at an unspecified address in GPE .","On DATE the first applicant married a NORP citizen , GPE The marriage was concluded in GPE , GPE . On DATE their daughter , the second applicant , was born . The parents had joint custody of the child under NORP law . They lived in GPE .","On DATE GPE and the first applicant separated . On DATE PERSON filed a divorce petition with the GPE authorities . The first applicant lodged a counter petition on DATE .","On DATE GPE filed for an interim injunction against the first applicant , seeking his removal from the family home on the ground of his violent behaviour . On DATE , ORG granted the interim injunction for a period of DATE . Criminal proceedings were also initiated against the first applicant for infliction of bodily harm .","On DATE GPE lodged an action for temporary sole custody of the second applicant throughout the divorce proceedings . At DATE , while the proceedings for the award of custody were pending before the NORP courts , GPE left for GPE together with the second applicant . The first applicant was not informed of the departure , even though at the time the spouses had joint custody of the second applicant .","In the meantime , on DATE GPE acquitted the first applicant of inflicting bodily harm . The GPE Public Prosecutor reserved the right to initiate criminal proceedings against GPE for perjury .","On DATE , ORG granted the first applicant temporary sole custody of the second applicant until the finalisation of the divorce proceedings . The court relied , inter alia , on expert opinion which concluded that the first applicant was better suited to have custody . PERSON does not appear to have appealed against the judgment .","NORP Currently , the divorce proceedings between the first applicant and GPE are pending before the NORP courts .","On DATE the first applicant submitted a request for the return of the second applicant to GPE under LAW of the LAW of DATE on ORG ( \u201c LAW ) . He argued that the second applicant had been removed from NORP territory in breach of the joint custody held by the spouses at the time of the removal . On DATE the NORP authorities submitted the request to ORG ( \u201c the NORP Ministry \u201d ) , ORG responsible for the obligations established under LAW .","On DATE , at the request of ORG , ORG ( NORP General PERSON ) confirmed that the second applicant was living with her mother , in GPE , at her GPE home . Furthermore , on DATE ORG ( Departamentul General de Asisten\u0163\u0103 Social\u0103 \u015fi ORG ) drafted a report in relation to the second applicant . The report mainly mentioned GPE \u2019s statements concerning her situation in GPE , her reasons for departure as well as the maternal GPE declarations concerning their commitment to provide housing and financial support to the second applicant indefinitely . It was also mentioned that the second applicant did not appear to be an abused or neglected child and that she was very attached to her mother and her maternal grandparents . The report concluded that the second applicant had appropriate living conditions , both from a material and emotional point of view .","On DATE ORG instituted proceedings on behalf of the first applicant before ORG . By a judgment of DATE , communicated on CARDINAL DATE , ORG found in favour of the first applicant , ordering the return of the second applicant to GPE . GPE held that the request fell under LAW of LAW and that none of the exceptions provided for LAW CARDINAL applied .","GPE appealed . She submitted several pieces of evidence , including declarations of her parents as witnesses given before ORG in the context of the divorce and custody proceedings . She further submitted a welfare report drafted by ORG within GPE ( Serviciul de Autoritate Tutelar\u0103 din cadrul Primariei Municipiului Timi\u015foara ) . The report included information on GPE \u2019s family situation , living conditions , and GPE \u2019s declarations in relation to the circumstances of her living and departing from GPE . Finally , the report recommended that GPE were awarded the custody over the second applicant .","By a final judgment delivered on DATE , and rendered in written form on DATE , ORG allowed the appeal on points of law , holding that the return of the second applicant to GPE would expose her to physical and psychological harm , within the meaning of LAW CARDINAL ( b ) of GPE . On the merits , ORG of Appeal held that the first applicant had shown violent behaviour towards GPE , as ORG had maintained when granting GPE the interim injunction of DATE . ORG of Appeal further held that the first applicant had breached the restraining order in DATE , which determined GPE to come to GPE . Finally , the domestic court reasoned that even if there was no evidence of a violent behaviour of the first applicant towards the child , this could be inferred from his behaviour towards GPE and from GPE \u2019s departure to GPE . ORG judgment of DATE was set aside on the ground that by that time GPE and the second applicant had already left GPE .","NORP Throughout the domestic proceedings , ORG informed the NORP authorities of the progress of ORG proceedings . The information included the date of the hearings and whether or not an appeal had been lodged . From the evidence adduced to the case file , it appears that ORG did not have any direct contact with the first applicant in connection with ORG proceedings .","The relevant provisions of LAW , which entered into force in respect of GPE on DATE , read , in so far as relevant , as follows .","\u201c The removal or the retention of a child is to be considered wrongful where DATE","a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and","b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .","The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . \u201d","\u201c The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . \u201d","\u201c A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities . [ .. ] \u201d","\u201c ORG shall co - operate with each other and promote cooperation amongst the competent authorities in their respective ORG to secure the prompt return of children and to achieve the other objects of this Convention .","In particular , either directly or through any intermediary , they shall take all appropriate measures \u2013","[ .. ]","f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ; [ .. ] \u201d","\u201c The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .","If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . \u201d","\u201c Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .","The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .","Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . \u201d","\u201c Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that \u2013","a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or","b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .","The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .","In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child \u2019s habitual residence . \u201d","\u201c The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . \u201d","Council Regulation ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( \u201c the Regulation \u201d ) , in so far as relevant reads as follows :","( CARDINAL cases of wrongful removal or retention of a child , the return of the child should be obtained without delay , and to this end the Hague Convention of DATE would continue to apply as complemented by the provisions of this Regulation , in particular LAW . [ ... ] \u201d","\u201c CARDINAL . Where a person , institution or other body having rights of custody applies to the competent authorities in a Member ORG to deliver a judgment on the basis of ORG [ .. ] , in order to obtain the return of a child that has been wrongfully removed or retained in a Member ORG other than the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , paragraphs CARDINAL to CARDINAL shall apply .","[ ... ]","A court to which an application for return of a child is made as mentioned in paragraph CARDINAL shall act expeditiously in proceedings on the application , using the most expeditious procedures available in national law .","Without prejudice to the first subparagraph , the court shall , except where exceptional circumstances make this impossible , issue its judgment no DATE after the application is lodged .","A court can not refuse to return a child on the basis of LAW ( b ) of the [ ... ] LAW if it is established that adequate arrangements have been made to secure the protection of the child after his or her return .","A court can not refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard .","If a court has issued an order on non - return pursuant to LAW , the court must immediately either directly or through its central authority , transmit a copy of the court order on non - return and of the relevant documents , in particular a transcript of the hearings before the court , to the court with jurisdiction or central authority in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , as determined by national law . The court shall receive all the mentioned documents within DATE of the date of the non - return order .","Unless the courts in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention have already been seized by CARDINAL of the parties , the court or central authority that receives [ a copy of an order on non - return pursuant to LAW and of the documents relevant to that order ] must notify it to the parties and invite them to make submissions to the court , in accordance with national law , within DATE of notification so that the court can examine the question of custody of the child . [ .. ] \u201d"],"violated_articles":["8"],"violated_paragraphs":["8-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111215","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2012,"docname":"CASE OF ESERTAS v. LITHUANIA","importance":3,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary and non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Helen Keller;Isabelle Berro-Lef\u00e8vre;Paulo Pinto De Albuquerque","text":["The applicant was born in DATE and lives in GPE .","The applicant owned a flat together with another person , GPE On DATE the applicant and GPE disconnected the flat from the central heating system provided by the company \u201c ORG \u201d ( hereinafter \u2013 PERSON ) , and signed a contract with an alternative heating provider . On DATE the new provider \u2019s heating system was installed in the flat . On DATE and repeatedly on DATE the applicant informed PERSON about the termination of their old agreement . According to the applicant , in DATE they received no bills from the old heating provider . In DATE , however , PERSON sent a bill for heating to the applicant and GPE","Following the refusal by the applicant to pay the bill , PERSON filed a civil claim for payment for the period from DATE to DATE .","On DATE GPE ( hereinafter - ORG ) dismissed the claim by PERSON . The court observed that the owners of the flat were free to choose their heating provider and they had informed the plaintiff about the termination of the agreement and properly disconnected from the heating system . The court concluded that the plaintiff itself had acknowledged that it no longer supplied heating to the flat . It was also established that the applicant together with GPE and PERSON were no longer in a contractual relationship for heat consumption . ORG noted that the claim filed by the plaintiff was an unsubstantiated attempt to enrich itself at the expense of the other party .","PERSON missed the time - limit for lodging an appeal and its request to renew it was dismissed . Neither of the parties requested re - opening of the proceedings .","In DATE PERSON brought a new claim against the applicant and GPE , requesting payment for heating for the period DATE to DATE .","On DATE GPE upheld the claim and awarded PERSON CARDINAL NORP litai ( ORG ; MONEY ( ORG ) ) against each of the owners . Having re - interpreted the domestic law , the court ruled that the applicant and GPE were still in a contractual relationship with PERSON because they had arbitrarily disconnected the heating system and thus they had to pay for the heating . The court found that the CARDINAL DATE court decision did not have res judicata effect as the new claim concerned a different period of time , and that this situation was therefore not identical to the one ruled upon earlier by ORG .","On DATE the NORP Regional PERSON contractual relationship between the parties and the supply of heating to the flat .","The applicant did not have the right to lodge a cassation appeal as the amount of the claim was smaller than the minimum required by domestic law for the lodging of such an appeal .","Article CARDINAL \u00a7 CARDINAL of LAW provides that once a judgment , decision or ruling becomes effective , the parties or other persons to the proceedings as well as the successors to their rights may not raise once again the same claims on the same grounds , and may not contest the facts and legal relations that had been established by a court in another case ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71538","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2005,"docname":"BETSON AND COCKRAM v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicants , Mr PERSON ( \u201c the first applicant \u201d ) and PERSON ( \u201c the second applicant \u201d ) , are NORP nationals . The first applicant was born in DATE and is currently detained in FAC . No details were provided as to the date of birth or current location of the second applicant .","On DATE the applicants and CARDINAL accomplices attempted to steal the contents of the ORG Diamond Exhibition at the FAC in GPE by driving a ORG digger into the said exhibition . The value of the gems they were trying to steal was MONEY . The applicants and their accomplices were caught in the act .","On DATE the applicants stood trial at ORG on charges of conspiracy to steal and conspiracy to rob . They pleaded guilty to conspiracy to steal but not guilty to conspiracy to rob . The only issue at trial was , therefore , whether there was a conspiracy to rob .","The trial lasted DATE . There were many witnesses , including Police Constable W , who gave evidence about \u2018 The Play\u2019 ( a book that he had written about the attempted theft ) and G , a prosecution expert who gave evidence about the configuration of the transceivers used by the applicants . The first applicant , in the course of giving evidence , lied about the presence of another man in his car . The trial judge ( \u201c the judge \u201d ) warned him about the risk of his being in contempt of court . Later , when summing up , the judge directed the jury that the said lies were irrelevant to the first applicant \u2019s guilt .","The judge admitted that he \u2018 nodded ORG during the closing speeches . A solicitor \u2019s clerk who was present at the trial noted that there were a few occasions towards the end of the trial when the judge slumped in his chair , fell asleep and was awakened by the sound of his own snoring . A journalist who was also present observed the judge fall asleep on CARDINAL occasions . The journalist could not recall when the judge had fallen asleep , other than on CARDINAL occasion during the early stages of the closing speeches . The applicants\u2019 counsel did not raise any issue at the trial in relation to the judge \u2019s falling asleep .","On DATE the jury put a complicated question to the judge about the use of force . The applicant did not explain how the judge responded to this question . DATE , the jury convicted the applicants of conspiracy to rob . The judge sentenced each of them to CARDINAL years\u2019 imprisonment .","The applicants appealed . The first applicant , who was represented by junior counsel during his appeal hearing , appealed on the following grounds : in the first place , the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions ; secondly , the judge improperly and inquisitorially interrupted the first applicant \u2019s evidence on a number of occasions ; thirdly , bearing in mind that the first applicant had already given evidence of his own record of dishonesty , the judge should not have taken him to task in relation to possible contempt and perjury in declining to name others to whom he had referred in the course of his evidence ; fourthly , the judge at times acted like a prosecuting counsel ; fifthly , the summing up was unbalanced and prejudicial to the first applicant \u2019s case ; sixthly , the judge should not have permitted the prosecution to call evidence from Police Constable W ; seventhly , the judge should not have responded in detail to a question put by the jury .","The second applicant , who was represented by senior counsel , only relied on the first CARDINAL of those grounds .","ORG delivered its judgment on DATE . It made the following comments in relation to the sixth and seventh grounds of the first applicant \u2019s appeal :","\u201c It is to be noted that , until that stage , no defendant had named [ W ] and if he had not been called , the defence and , in particular , [ the first applicant ] , would have had free rein to implicate him in the conspiracy , without him having the opportunity of denying that that was so . The plot of the book which he had written , whether prejudicial or not , was elicited in cross - examination by leading counsel on behalf of [ the first applicant ] . In those circumstances , we propose to say no more about [ the first applicant \u2019s ] sixth and seventh grounds save that , having read the jury \u2019s question and the way in which the judge dealt with it , we are entirely satisfied that both these grounds are devoid of merit . \u201d","As to the second , third , and fourth grounds , ORG found that , although on occasions the judge \u2019s interventions were excessive , when viewed in the context of the trial as a whole , the said interventions did not render the trial unsafe . In particular it observed that , although in an ideal world the judge might have made fewer references to perjury , it was inescapably obvious that the first applicant was lying and the judge was entitled to warn him about the risk of contempt of court .","As to the fifth ground , ORG found that , having read with care the criticised passages in the summing up , there was no substance in the complaints . In particular , the direction in relation to perjury was correct .","Finally , and as to the first ground , ORG opined as follows :","\u201c There remains the ground in relation to the judge \u2019s falling asleep . Because the appearance as well as the actuality of justice being done is important , no judge ought , in any circumstances , to fall asleep during any stage of a criminal trial . It is highly regrettable that this judge did so . But because a judge falls asleep or , for any other reason , allows his or her attention to wander , it does not necessarily follow that the trial is unfair , or that any ensuing conviction is unsafe . It is the effect , not the fact , of such inattention which is crucial . This must , in each case , depend on all the circumstances , including the period of inattention , both absolute and as a proportion of the length of the whole trial ; the stage of the trial at which the inattention occurs ; and , of primary importance , the impact of that inattention , if any , on the course and conduct of the trial . We give CARDINAL examples by way of illustration . First , if a judge is inattentive , however briefly , during a defendant \u2019s evidence in chief and , in consequence , fails to register and , in due course , sum up to the jury , a piece of evidence crucial to the defence , the conviction may be regarded as unsafe . The unsafety arises not because the judge slept or was otherwise inattentive but because , in consequence , the summing - up was defective in that the defence was not properly put before the jury . Conversely , a conviction is unlikely to be regarded as unsafe if , during a lengthy trial , a judge is inattentive , even for substantial periods , if , in consequence , he missed no significant point meriting inclusion in his summing - up and did not fail properly to control the admissibility of evidence , the conduct of counsel or some other aspect of the proceedings .","In the present case , the judge , as he frankly and properly admits , was , for a time , asleep during the speeches of counsel for [ the first applicant ] and [ C ] . We are prepared to accept that he was also asleep on a few other occasions , sometimes to the extent that he woke himself by the sound of his snoring . It is however of some significance that , at the trial , no defendant , no counsel in the case , ( of whom there were a total of CARDINAL ) , and no juror , was sufficiently concerned to raise the matter with the judge , other counsel , or the court usher . It is of greater significance that , before this ORG , it has not been shown that , because he slept , the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches . On the contrary , this summing - up , extending to CARDINAL pages of transcript and delivered , as we have said , over DATE , shows every sign of having been carefully prepared . It was comprehensive and balanced , accurate as to the law and detailed as to the evidence . The defence of each defendant was fully put . Had the judge been awake when he was asleep , the appearance of justice would , of course , have been obviously enhanced . But the trial would have followed no different course . Furthermore , regrettable though it is that the judge occasionally slept , no objection having been made at the time , we are unpersuaded that the jury was , even arguably , unfairly prejudiced against any defendant , bearing in mind also the length of trial , the full , fair and accurate summing - up , the lengthy period of retirement , the pertinent question asked by the jury , and the compelling , powerful evidence against the defendants . It was for these reasons that DATE we refused [ the first applicant ] and [ the second applicant ] leave to appeal against conviction . \u201d","ORG then found the original sentence of DATE to be excessive and substituted a sentence of DATE .","Section CARDINAL(CARDINAL ) of LAW DATE ( \u201c the DATE LAW ) , as amended by LAW DATE ( \u201c the DATE LAW ) , provides a single , composite right of appeal against a criminal conviction . It states that ORG :","\u201c ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and","( b ) shall dismiss an appeal in any other case . \u201d","The broad intention behind this provision was summarised by the then Lord Chief Justice , Lord PERSON , in NORP v. PERSON and Others ( [ DATE ] vol . ORG p. CARDINAL [ ORG ] ) , when he said :","\u201c This new provision ... is plainly intended to concentrate attention on CARDINAL question : whether , in the light of any arguments raised or evidence adduced on appeal , ORG considers a conviction unsafe . If the ORG is satisfied , despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence , that the conviction is safe , the ORG will dismiss the appeal . But if , for whatever reason , the court concludes that the appellant was wrongly convicted of the offence charged , or is left in doubt whether the appellant was rightly convicted of that offence or not , then it must of necessity consider the conviction unsafe . The ORG is then subject to a binding duty to allow the appeal . \u201d","In R v. PERSON and PERSON ( [ DATE ] CARDINAL All ER CARDINAL , ORG observed , however , that it :","\u201c ... has no power under the substituted section CARDINAL(CARDINAL ) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial ... \u201d ( per Lord Justice Auld at page CARDINALj ) .","Subsequently , ORG modified its approach .","The scope of the \u201c safety test \u201d was discussed by Lord PERSON in his judgment in NORP v. ORG , ex parte Pearson ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL [ ORG ] ) , where he stated :","\u201c The expression \u2018 ORG in section CARDINAL ) of LAW does not lend itself to precise definition . In some cases unsafety will be obvious , as ( for example ) where it appears that someone other than the appellant committed the crime and the appellant did not , or where the appellant has been convicted of an act that was not in law a crime , or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection , or where the jury verdict , in the context of other verdicts , defies any rational explanation . Cases however arise in which unsafety is much less obvious : cases in which the ORG , although by no means persuaded of an appellant\u2019","This passage was subsequently cited by ORG in the case of NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL) , where Lord Justice PERSON , delivering the judgment of the court , stated that :","\u201c The following is not intended to be an exhaustive statement of the principles involved . We simply extract the following . The ORG is concerned with the safety of the conviction . A conviction can never be safe if there is doubt about guilt . However , the converse is not true . A conviction may be unsafe even where there is no doubt about guilt but the trial process has been \u2018 vitiated by serious unfairness or significant legal misdirection\u2019 ... Usually it will be sufficient for the ORG to apply the test ... which , as adapted by [ counsel for the ORG ] , might read :","\u2018 Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error , would the only reasonable and proper verdict have been CARDINAL of guilty?\u2019","That being so there is no tension between s. CARDINAL ) of LAW as amended and section CARDINAL(CARDINAL ) of LAW [ requiring legislation to be read and given effect in a way which is compatible with Convention rights ] . \u201d","Later in his judgment , Lord Justice PERSON stated that :","\u201c We are satisfied that the CARDINAL questions [ the questions of \u2018 FAC and \u2018 ORG ] must be kept separate and apart . The [ ORG ] is charged with inquiring into whether there has been a breach of a Convention right . This court is concerned with the safety of the conviction . That the first question may intrude upon the second is obvious . To what extent it does so will depend upon the circumstances of the particular case . We reject , therefore , [ counsel for PERSON ] \u2019s contention that a finding of a breach of LAW ) by the [ ORG Rights ] leads inexorably to the quashing of the conviction . Nor do we think it helpful to deal in presumptions . The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree . ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-89412","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF ISMAYILOV v. RUSSIA","importance":2,"conclusion":"Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant arrived in GPE from GPE . He was carrying with him MONEY ( ORG ) , representing the proceeds from the sale of his ancestral dwelling in LOC . However , he only reported DATE on the customs declaration , whereas NORP law required that any amount exceeding USD CARDINAL,CARDINAL be declared to the customs . A customs inspection uncovered the remaining amount in his luggage . The applicant was charged with smuggling , a criminal offence under LAW , and the money was appended to the criminal case as physical evidence ( \u0432\u0435\u0449\u0435\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u0435 \u0434\u043e\u043a\u0430\u0437\u0430\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0430 ) .","On DATE the ORG of GPE found the applicant guilty as charged and imposed a suspended sentence of CARDINAL months\u2019 imprisonment conditional on CARDINAL months\u2019 probation . As regards the money , it held :","\u201c Physical evidence \u2013 MONEY stored in the ORG cash desk of ORG \u2013 shall revert to the ORG . \u201d","In his statement of appeal the applicant claimed his innocence and submitted that the confiscation order had no basis in the domestic law because LAW did not provide for confiscation as punishment .","On DATE ORG upheld the conviction on appeal . As regards the money , it noted that the trial court had not ordered confiscation of the money as a penal sanction , but had rather decided on the destiny of the physical evidence .","The applicant sent complaints to various NORP authorities . He pointed out that he had been living below the poverty line and that for this reason he had decided to sell the flat in GPE which he had inherited from his mother . He enclosed copies of the will and the flat sale contract . He asked for return of the lawfully acquired money on humanitarian grounds .","On DATE the Ombudsman of ORG wrote a letter on the applicant \u2019s behalf to the acting GPE prosecutor , asking him to submit a request for institution of supervisory - review proceedings in the part concerning the confiscation order . On DATE the deputy GPE prosecutor replied to the Ombudsman that there were no reasons to seek institution of supervisory - review proceedings because the confiscation order had been lawful on the basis of paragraph CARDINAL of ORG Resolution of DATE .","On DATE the ORG asked ORG to apply for institution of supervisory - review proceedings . He wrote , firstly , that , contrary to the requirements of LAW , no procedural document indicated what category of physical evidence the applicant \u2019s money belonged to . That omission entailed an incorrect decision on the destiny of the physical evidence . The applicant \u2019s money had neither been an instrument of DATE in smuggling cases only a hiding place could be such an instrument DATE nor had it been criminally acquired . Accordingly , neither paragraph CARDINAL ( CARDINAL ) nor paragraph CARDINAL ( CARDINAL ) of LAW of LAW were applicable in the applicant \u2019s situation and the money should have been returned to the lawful owner pursuant to paragraph CARDINAL ( CARDINAL ) of that Article . Otherwise , the confiscation order amounted to a de facto second punishment for the same offence . Finally , the ORG contested the applicability of ORG resolution of DATE . He pointed out that paragraph CARDINAL expressly provided for application of the \u201c current legislation \u201d . As the new Criminal Code did not provide for confiscation in cases of smuggling , paragraph CARDINAL could not be applied .","On DATE the deputy Prosecutor General replied to the ORG that the ORG of ORG had already opined that the object of smuggling should be treated as the instrument of the offence and be liable to confiscation as such ( he referred to the judgment in the PERSON case , cited in paragraph CARDINAL below ) .","The ORG lodged a constitutional complaint on behalf of the applicant and another person .","On DATE ORG declared the complaint inadmissible ( decision no . PERSON ) . It held that the legal possibility of confiscating the objects recognised as physical evidence in a criminal case , including instruments and proceeds of offences , was compatible with the international obligations of the GPE undertaken under LAW and ORG , Search , LAW . Hence , LAW did not permit an arbitrary interference with property rights and did not violate , in itself , the ORG constitutional rights . ORG concluded as follows :","\u201c Determination of the status of the objects illegally transported across the customs border of GPE in the criminal proceedings and decision on whether they fit the description of physical evidence liable to criminal confiscation ... are to be made by the court of general jurisdiction trying the criminal case ... Lawfulness of , and justification for , the judicial decision on confiscation of physical evidence shall be reviewed by higher courts in criminal proceedings . ORG of GPE is not competent to carry out such a review ... \u201d","On DATE ORG refused the ORG \u2019s further request for a clarification of its decision of DATE .","The United Nations Convention against ORG which concerns the transnational offences and also offences of participation in an organised criminal group , laundering of the proceeds of crime , corruption , and obstruction of justice , ratified by GPE on DATE , provides as follows :","\u201c CARDINAL . DATE States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders , subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital . Such measures may include a requirement that individuals and businesses report the cross - border transfer of substantial quantities of cash and appropriate negotiable instruments . \u201d","\u201c CARDINAL . DATE States Parties shall adopt , to the greatest extent possible within their domestic legal systems , such measures as may be necessary to enable confiscation of :","( a ) Proceeds of crime derived from offences covered by this LAW or property the value of which corresponds to that of such proceeds ;","( b ) Property , equipment or other instrumentalities used in or destined for use in offences covered by this LAW . \u201d","LAW of the Russian Federation provides that smuggling , that is movement of large amounts of goods or other objects across the customs border of GPE , committed by concealing such goods from the customs or combined with non - declaration or inaccurate declaration of such goods , carries a penal sanction of up to DATE imprisonment ( LAW ) .","LAW ( Federal Law no . CARDINAL-I of DATE , in force at the material time ) provided that NORP residents and non - residents alike had the right to transfer , bring in , and send foreign currency to GPE without any restrictions provided that they have complied with the customs rules ( sections QUANTITY and CARDINAL \u00a7 CARDINAL ) .","The Code of Criminal Procedure of GPE ( \u201c CCrP \u201d ) provides as follows :","\u201c CARDINAL . Any object may be recognised as physical evidence -","( CARDINAL ) that served as the instrument of the offence or retained traces of the offence ;","( CARDINAL ) NORP that was the target of the criminal acts ;","( CARDINAL ) any other object or document which may be instrumental for detecting a crime or establishing the circumstances of the criminal case .","...","NORP On delivery of a conviction ... the destiny of physical evidence must be decided upon . In such a case \u2013","( CARDINAL ) instruments of the crime belonging to the accused are liable to confiscation , transfer to competent authorities or destruction ;","( CARDINAL ) objects banned from circulation must be transferred to competent authorities or destroyed ;","( CARDINAL ) NORP non - reclaimed objects of no value must be destroyed ... ;","( CARDINAL ) NORP criminally acquired money and other valuables must revert to the ORG by a judicial decision ;","( CARDINAL ) documents must be kept with the case file ... ;","( CARDINAL ) any other objects must be returned to their lawful owners or , if the identity of the owner can not be established , transferred to the ORG ... \u201d","Similar provisions were previously contained in LAW ( cited in PERSON v. GPE , no . GPE DATE ) .","The Resolution of the Plenary Supreme Court of the GPE \u201c On judicial practice regarding the offence of smuggling \u201d ( no . CARDINAL of DATE ) provided as follows :","\u201c CARDINAL . In accordance with the current legislation , the objects of smuggling are liable to confiscation to the ORG as physical evidence . Vehicles and other means of transport are also liable to confiscation as instruments of the offence provided that they were equipped with special hiding places for concealing goods or other valuables ... \u201d","The Resolution of the Plenary Supreme Court of the GPE \u201c On confiscation of the instruments of the offence that were recognised as physical evidence in the case \u201d ( no . CARDINAL of DATE ) provided as follows :","\u201c Having regard to the questions relating to the possibility of applying LAW ... in cases of negligent criminal offences , ORG resolves -","- to clarify that the objects belonging to the convict and declared to be physical evidence may be confiscated on the basis of LAW ... only if the convict or his accomplices deliberately used them as the instruments of the crime with a view to achieving a criminal result . \u201d","The Presidium of ORG of GPE in the case of Prosecutor General v. PERSON ( decision no . CARDINAL of DATE ) granted the prosecution \u2019s appeal against the judgment , by which PERSON had been found guilty of smuggling of foreign currency but the money had been returned to him on the ground that LAW did not provide for confiscation as a penal sanction . The ORG held as follows :","\u201c Confiscation of property as a penal sanction must be distinguished from confiscation of smuggled objects which were recognised as physical evidence . These issues must be addressed separately in the judgment ...","In the meaning of [ LAW ] and also LAW of the ORG , an instrument of the offence is any object which has been used for accomplishing publicly dangerous actions , irrespective of the main purpose of the object . Accordingly , the notion of an instrument of the offence comprises the object of the offence .","A mandatory element of a criminal offence under LAW is an object of smuggling that is being illegally transported across the customs border ... The court found Mr PERSON guilty of [ attempted smuggling ] , noting that MONEY were the object of the offence . Accordingly , it was required to decide on the destiny of physical evidence in accordance with LAW that is , according to the rules on the instruments of the offence \u2013 but failed to do so . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105841","languageisocode":"ENG","respondent":"AZE","branch":"CHAMBER","date":2011,"docname":"CASE OF ORUJOV v. AZERBAIJAN","importance":4,"conclusion":"Violation of P1-3","judges":"Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicant was born in DATE and lives in GPE .","The applicant applied for registration as an independent candidate for the forthcoming elections to ORG ( ORG ) of DATE . On DATE ORG ( \u201c the ConEC \u201d ) for ORG no . CARDINAL , a single - mandate constituency in GPE , registered him as a candidate .","On DATE Police Office No . CARDINAL of ORG informed the ConEC that the applicant was privately funding certain urban improvement works ( such as laying new asphalt and repairing public recreation facilities for children ) in some public areas of his constituency , allegedly with the purpose of winning over the support and votes of the local residents , in breach of the requirements of the electoral law . To this effect , the police drew up a record , signed by QUANTITY police officers and QUANTITY employees ( ORG of the local housing utilities committee responsible for the residential buildings in question , which stated that the applicant had \u201c laid fresh asphalt in front of the residential buildings indicated on the attached drawing ... and this fact [ was ] confirmed by the signatures below \u201d .","NORP In support of this submission , the police office submitted handwritten statements by several local residents , all of which were addressed directly to the police and expressed gratitude to the applicant for the work he had carried out in their neighbourhood . While some of the statements were dated DATE , CARDINAL statements were dated DATE .","NORP In particular , a statement by PERSON , dated DATE and addressed to ORG No . DATE , read as follows :","\u201c I have resided at the above - mentioned address since DATE . During this time , no renovation has been done in the courtyard [ of our building ] . But in DATE a lot of renovation work has been carried out in the courtyard ... [ a description of specific improvements follows ] .","The above - mentioned works were organised and carried out by our respected neighbour ... PERSON . He is a person who is willing to share all the problems of the entire neighbourhood and to assist [ in resolving these problems ] . We wish this person only victory in the upcoming elections \u201d .","A statement by ORG , dated DATE and addressed to ORG No . DATE , read as follows :","\u201c In reply to the questions asked of me , I inform you that PERSON Orujov , who has nominated himself as a candidate [ for the parliamentary elections ] , has carried out benevolent renovation works in our courtyard in the pre - election period . He has laid fresh asphalt in front of the buildings . I have written this statement myself . I confirm [ the authenticity of ] my signature \u201d .","A statement by ORG , dated DATE and addressed to ORG No . DATE , read as follows :","\u201c I inform you that PERSON Orujov , who has nominated himself as a candidate [ for the parliamentary elections ] , is laying fresh asphalt in front of the buildings [ in our courtyard ] . He is a good person . I have written this statement myself . I confirm [ the authenticity of ] my signature . \u201d","Other statements were of a similar content .","According to an extract from TIME of the PERSON meeting held on DATE , made available to the applicant and later submitted by him to the ORG , the PERSON decided as follows :","\u201c CARDINAL . To take into consideration the statements by voters ...","To confirm , based on the statements and other material submitted , breaches of ORG and ORG of LAW by PERSON Orujov , who is registered as a candidate for the elections to the Milli Majlis .","NORP In accordance with LAW , to apply to ORG with a request for the cancellation of the applicant \u2019s registration as a candidate owing to the breach of the requirements of ORG and ORG of LAW . ... \u201d","The full copy of TIME of the above PERSON meeting , as submitted by the Government , indicates that this meeting was held on DATE .","By a letter of DATE , the ConEC submitted the cancellation request to ORG . The request stated , inter alia :","\u201c [ C]andidate PERSON Orujov has breached the requirements of LAW and thus violated the rights of other candidates . There have been repeated oral submissions to [ the ConEC ] concerning his illegal actions . Finally , citizens have applied to ORG no . CARDINAL of ORG and requested [ the police ] to put an end to his illegal actions . ... It has been proved that [ the applicant ] conducted [ certain renovation works ] , in breach of ORG and CARDINAL.CARDINAL.CARDINAL of LAW , with the purpose of buying votes . ... \u201d","According to the applicant , he was not informed about the DATE \u2019s request in a timely manner .","ORG examined the case DATE , at TIME on DATE .","According to the record of the court hearing , the court examined the documents submitted by the PERSON and heard a number of witnesses . In particular , CARDINAL police officers , PERSON and PERSON , testified that , according to \u201c residents of the buildings \u201d in question , the applicant had carried out unauthorised urban improvement works in the constituency .","The court also heard CARDINAL local residents . It appears that CARDINAL of them ( GPE , GPE and GPE ) had submitted handwritten statements to the police earlier . These CARDINAL witnesses told the court that they did not know the applicant personally and had not known who had carried out the renovation works , that on DATE police officer PERSON had approached each of them individually on the street , engaged them in conversation and informed them that the works had been carried out by the applicant , and that ORG had then asked them to write a \u201c thank - you note \u201d expressing their gratitude to the applicant for his efforts on behalf of the community . The witnesses said that they had not been told that their statements would be used against the applicant later .","Of the remaining CARDINAL local residents , one stated that she did not know who had carried out the urban improvement works near her home , and CARDINAL stated that the works had been carried out by the local residents themselves at their own expense .","NORP In its judgment of DATE , consisting of CARDINAL and a CARDINAL typed pages , ORG summarised the above - mentioned witness statements as follows :","\u201c ... witnesses PERSON and PERSON confirmed that [ the renovation works ] at [ the location in question ] had been carried out under the instructions and with the assistance of the candidate for the elections to the Milli Majlis , ORG ORG . This circumstance was also confirmed by witnesses [ GPE and GPE ] when questioned at the court hearing . ...","Witnesses [ V.Q. and FAC ] , when questioned at the court hearing , stated that they did not know who had laid the fresh asphalt and carried out the renovation works , while witnesses [ GPE and GPE ] stated that these renovation works had been carried out by the local residents themselves \u201d .","The court then directly proceeded to a finding that the applicant , by carrying out renovation works in public areas \u201c with the aim of winning over voters \u201d and \u201c promising to provide assistance to voters in return for their votes \u201d , had attempted to influence the voters\u2019 opinion in a manner prohibited by LAW . The court therefore decided to cancel the applicant \u2019s registration as a candidate .","On DATE the applicant enquired as to the identity of the local residents who had testified against him . He discovered that CARDINAL of the persons ( GPE and T.T. ) who had complained about him to the police did not actually live in his constituency and had used false addresses in their written submissions .","CARDINAL other witnesses ( PERSON , GPE and PERSON ) made notarised affidavits addressed to ORG in which they retracted their previous handwritten submissions to the police , claiming that , in fact , none of them had known whether the renovation works had actually been carried out by the applicant , and that they had been either pressured or tricked by the police into making these statements , without being informed that the police intended to use them against the applicant .","The applicant lodged a cassation appeal with ORG , arguing that the evidence used against him had been fabricated , that ORG had made manifest errors in examining the evidence and had based its decision on unproven allegations , and that therefore his registration had been cancelled arbitrarily . With his cassation appeal , he also enclosed the witness affidavits mentioned above .","On DATE ORG dismissed the applicant \u2019s appeal and upheld ORG judgment of DATE . It refused to admit the new evidence submitted by the applicant challenging the reliability of the original evidence used against him ( including the witnesses\u2019","Article CARDINAL of LAW of DATE provides as follows :","\u201c CARDINAL . Candidates ... are prohibited from gaining the support of voters in the following ways :","CARDINAL.CARDINAL.CARDINAL . giving money , gifts and other valuable items to voters ( except for badges , stickers , posters and other campaign materials having nominal value ) , except for the purposes of organisational work ;","CARDINAL.CARDINAL.CARDINAL . NORP giving or promising rewards based on the voting results to voters who were involved in organisational work ;","selling goods on privileged terms or providing goods free of charge ( except for printed material ) ;","CARDINAL.CARDINAL.CARDINAL . providing services free of charge or on privileged terms ;","CARDINAL.CARDINAL.CARDINAL . influencing the voters during the pre - election campaign by promising them securities , money or other material benefits , or providing services that are contrary to the law . \u201d","According to Articles CARDINAL and CARDINAL of LAW , the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by LAW .","Complaints concerning decisions of electoral commissions must be examined by the courts within DATE ( unless the Electoral Code provides for a shorter period ) . The period for lodging an appeal against a court decision is also DATE ( Article CARDINAL ) .","LAW sets out rules for the examination of applications concerning the protection of electoral rights ( or the right to participate in a referendum ) . According to LAW , such applications must be submitted directly to the appellate courts in accordance with the procedure established by LAW .","Applications concerning the protection of electoral ( referendum ) rights must be examined within DATE of receipt of the application , except for applications submitted on DATE or the day after DATE , which must be examined immediately ( Article CARDINAL ) . The court must hear the case in the presence of the applicant , a representative of the relevant electoral commission and any other interested parties . Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case ( Article CARDINAL ) .","The appellate court \u2019s decision can be appealed against to the higher court ( the court of cassation ) within DATE . This appeal must be examined within DATE , or immediately if submitted on DATE or DATE . The decision of the court of cassation is final ( Article CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-108225","languageisocode":"ENG","respondent":"LVA","branch":"CHAMBER","date":2011,"docname":"CASE OF ZANDBERGS v. LATVIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and currently lives in GPE .","On DATE the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner ; the murder actually took place DATE before his arrest . According to the prosecution , the applicant had paid CARDINAL accomplices to strangle the victim in his car . Then , together with CARDINAL other accomplices , he had driven the car with the victim \u2019s body to another district , faked a road accident and set the car ablaze . Interrogated as a suspect , the applicant pleaded not guilty .","DATE after the applicant \u2019s arrest , on DATE , another set of criminal proceedings was initiated against the applicant on the fact of a large - scale contraband of sugar in FAC . On DATE , the preventive measure taken with regard to the applicant in the first criminal proceedings ( concerning murder ) was altered ; he was released upon a written undertaking not to change his place of residence . However , DATE , on DATE , the competent prosecutor ordered the applicant \u2019s detention on remand in the contraband case .","On DATE the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant . On the same date the applicant was charged with committing an aggravated contraband . On DATE the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence . In DATE the applicant was officially indicted on a charge of aggravated contraband and forgery .","NORP In DATE CARDINAL of CARDINAL persons having allegedly strangled the applicant \u2019s business partner was found dead . On DATE , the other , GPE , was arrested and detained on remand . Later , in DATE of DATE , he was released upon a written undertaking not to change his place of residence .","On DATE , in spite of his undertaking not to leave his residence , the applicant left GPE for GPE .","On DATE ORG committed the applicant to trial in the contraband case . On DATE , the prosecutor charged him with aggravated murder and ordered his detention on remand .","On DATE ORG , examining the contraband case as a court of first instance according to the law then in force , opened the hearing on the merits of this case . As the applicant failed to appear , the preventive measure against him was changed into a detention on remand , he was placed on the wanted list , and the proceedings against him were suspended . In DATE the prosecutor sanctioned a search operation in order to locate the applicant \u2019s whereabouts .","NORP In DATE and DATE some investigative measures were taken in the murder case ; namely , PERSON was interrogated . The prosecutor also terminated criminal proceedings against CARDINAL of the applicant \u2019s accomplices who had allegedly helped him to dispose of the victim \u2019s body ; he was subsequently charged with concealment of a crime and intentional destruction of property .","On DATE the pre - trial investigation of the whole case was suspended . DATE ORG ordered the applicant \u2019s search via the ORG information channels . On DATE the competent prosecutor ordered the applicant to be detained on remand .","On DATE the Criminal Police informed the prosecutor that the applicant \u2019s whereabouts were unknown . Consequently , on DATE the case against him was disjoined from the rest of the murder case into a separate case file . Shortly thereafter , ORG and the other presumed accomplice disappeared and were placed on the wanted list .","On DATE the prosecutor charged the applicant with a complicity in murder . On DATE , the prosecutor applied to ORG for a detention order in respect of the applicant , given the fact that under the relevant amendments to LAW a detention on remand could not anymore be applied by a prosecutor . On DATE the order was granted , without specifying its temporal limit .","On DATE ORG ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition . On DATE the prosecutor resumed the investigation in respect of the applicant \u2019s CARDINAL presumed accomplices , who had been located in the meantime . On DATE , the proceedings against them were partly discontinued as time - barred .","On an unspecified date , the NORP authorities learned of the applicant \u2019s stay in GPE . Accordingly , on DATE ORG asked ORG for assistance in legal matters , namely , to locate and to extradite the applicant in accordance with the NORP - American LAW of DATE . On DATE GPE authorities took the applicant into custody pending extradition proceedings .","On DATE the competent GPE Magistrate Judge granted an order allowing the applicant \u2019s extradition to GPE on the charge of aggravated murder . The applicant appealed requesting a stay of the extradition order .","On DATE ORG informed ORG that the applicant was currently held in custody in GPE , and that the GPE authorities had consented to his extradition to GPE on the charge of aggravated murder . On DATE the acting Secretary of ORG of GPE signed a written document approving the applicant \u2019s deportation order . On DATE ORG convoyed the applicant to FAC ( GPE ) , where he was handed over to the NORP authorities . On DATE he was brought to GPE and placed in LOC . On DATE , on DATE , ORG was notified of this fact .","On DATE of the applicant \u2019s extradition , on DATE ORG of GPE stayed the extradition order of DATE .","On DATE the competent prosecutor decided to resume the pre - trial investigation regarding the applicant . On the same date , the detention order of ORG of DATE was notified to the applicant , who attested it with his signature .","On DATE the applicant \u2019s lawyer appealed against this detention order , stating that the latter had been taken in the applicant \u2019s absence , that the judge who had taken it had no time to acquaint himself with the criminal case file , and that the detention was authorised for an indefinite period of time . By a final decision of DATE ORG rejected the appeal , declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice , and that in this case , precisely , the applicant was hiding .","On DATE ORG , acting upon the prosecutor \u2019s request , extended the applicant \u2019s detention on remand until DATE , with the following reasoning :","\u201c Taking into account the gravity of the crime committed , as well as the fact that ORG could abscond from investigation and trial , and hinder the establishment of truth in the case ... \u201d","NORP The applicant appealed , stating that the time he had spent in custody in GPE had to be counted as a part of the overall time of his pre - trial detention and that , consequently , this detention had exceeded the maximum time - limit set by LAW . On DATE ORG rejected the appeal , refusing to subscribe to the applicant \u2019s interpretation . According to the court , the time of his detention on remand should be counted from the DATE when he was surrendered to the jurisdiction of GPE .","On DATE the charges against the applicant were amended . As the GPE authorities had extradited the applicant on the condition that he would stand trial for murder , the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped .","By an order of ORG of DATE , reasoned in terms identical to the CARDINAL of DATE , the applicant \u2019s detention on remand was extended until DATE . The applicant \u2019s appeal was dismissed on DATE , repeating in substance the reasoning of the previous appeal decision .","On DATE the ORG dismissed the charges against the applicant in the contraband case , as there was no consent from the authorities of the extraditing ORG ( i.e. , GPE ) to try him for the respective offences .","On DATE the applicant \u2019s detention on remand was extended until DATE , with an almost identical motivation as before ; however , ORG added that the applicant had no registered domicile in GPE . On DATE , the applicant \u2019s appeal was dismissed . On DATE the criminal cases against the applicant , PERSON and the CARDINAL other presumed accomplices were joined again in a single case - file . However , shortly thereafter the case against these QUANTITY latter persons was disjoined from the common case file .","On DATE and DATE , the applicant \u2019s detention on remand was extended , respectively , until DATE and DATE . On DATE and DATE respectively , ORG rejected the applicant \u2019s appeals . The reasoning of all these orders and decisions was the same as before .","On DATE the applicant was officially charged with organising an aggravated murder . On DATE the prosecutor notified all the accused persons that the pre - trial investigation was completed and that they would now be able to acquaint themselves with the case file . On the same date , the applicant and PERSON received the file , which consisted of CARDINAL volumes . On DATE they both finished reading it ; the applicant then requested the prosecutor to terminate the proceedings against him . On DATE , this request was rejected .","On DATE the final bill of indictment was notified to the applicant . On DATE , the case file was sent to ORG .","On DATE the competent judge of ORG , without hearing the parties , took a decision to commit the applicant and the co - accused for trial and fixed a hearing for the period of time running DATE and DATE . The judge also decided that the applicant \u2019s detention on remand \u201c sh[ould ] remain unchanged \u201d . No term for that detention was specified . The applicant did not appeal against this decision .","On DATE and DATE the applicant submitted CARDINAL requests to ORG to decide on the lawfulness of his detention on remand , alleging that the consent from GPE to prosecute him had not been properly obtained . He also asked the court to order an additional pre - trial investigation and to alter the preventive measure applied to him . On DATE the court rejected all these requests .","On DATE the applicant requested a separate hearing on the question whether the time he had spent in custody in GPE had to be counted as a part of his pre - trial detention for the purpose of the current proceedings against him and therefore , whether the maximum time - limit of a detention set by LAW had been exceeded . On DATE the court rejected this request .","On DATE the applicant asked ORG to alter the preventive measure and to liberate him . On DATE , the court held a special hearing whereby both the applicant \u2019s defence counsel and the prosecutor were heard . The court finally decided to reject the applicant \u2019s request and to keep him in detention for basically the same reasons as before , i.e. , the gravity of the crime for which he was accused , the risk of absconding and the lack of a fixed domicile . The court added that there was a risk that the applicant could commit new crimes , without developing this point .","The applicant appealed . On DATE ORG found the appeal admissible and scheduled the hearing on this procedural issue to take place on DATE . On DATE , it held a hearing and dismissed the applicant \u2019s appeal , upholding ORG decision . The ORG noted , inter alia , that in DATE the applicant had already breached the preventive measure applied to him and had fled to GPE .","On DATE and DATE respectively , the applicant applied to the Governor of ORG , requesting permission to make copies of CARDINAL ORG replies to his complaints in order to submit them to the ORG . His requests were refused by the Deputy Governor of that prison . It appears that the applicant did not appeal against the refusals .","On DATE ORG commenced the hearings on the merits of the case . However , as the applicant \u2019s co - accused GPE failed to appear , the hearing was postponed until DATE . The court also ordered the police to ensure ORG \u2019s appearance . However , on DATE , the police informed the court that the latter had fled to GPE . The court then decided to put him on the wanted list and to adjourn the proceedings sine die .","On DATE the applicant asked the court to alter the preventive measure applied to him . On CARDINAL and CARDINAL DATE respectively , this request was dismissed .","NORP On DATE the applicant asked the case against GPE to be disjoined from his into a separate file , in order to be able to proceed more speedily . On DATE the court rejected this request and affirmed that the applicant would stay in pre - trial detention .","On DATE a new wording of LAW ) of LAW entered into force . According to this new provision , a detention in remand should not exceed DATE and DATE upon committal to trial , and an extension thereto could only be granted by the ORG of ORG on an exceptional basis . Consequently , on DATE the competent judge of ORG requested the ORG to grant such an extension because the applicant \u201c [ had ] committed the serious offence \u201d . On DATE the ORG , without summoning the applicant and his defence counsel , decided to extend the applicant \u2019s detention until DATE . The only reason mentioned by the ORG was that the applicant was accused of committing a serious and violent crime .","On DATE the applicant applied to ORG requesting either to obtain an appropriate permission from GPE to try and sentence him for a criminal offence or discontinue the criminal proceedings . On DATE ORG informed the applicant that his requests will be examined at the hearing on the merits of the case . On DATE the applicant repeatedly requested ORG to take an express decision on this issue , but to no avail . On DATE the court informed the applicant that all his requests should have been decided at the preparatory hearing , according to the relevant LAW . However , as they had been submitted after the preparatory hearing , they were not subject to any other review at this stage of proceedings .","On DATE ORG commenced the hearing on the merits of the case . The applicant immediately tried to discharge the prosecutor , accusing him of committing a criminal offence and of forging evidence . The court rejected the applicant \u2019s requests . On DATE , it resumed the hearing . The applicant tried to have the whole panel of CARDINAL judges discharged because of their alleged impartiality in addressing the issue of the prosecutor . The court , again , dismissed the applicant \u2019s requests . It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear . On DATE , the witnesses failed to appear again . The court , again , ordered the police to bring them under constraint .","At the hearings of CARDINAL and DATE the applicant attempted again to have both the prosecutor and the judges dismissed , but in vain . The court also ordered the police to ensure the appearance of CARDINAL remaining witness who had failed to appear .","At the same hearings , referring to LAW , the applicant also requested the court either to obtain an appropriate permission from GPE to try him or to terminate the proceedings . His request was dismissed .","On DATE ORG found the applicant guilty of organising the murder and sentenced him to DATE of imprisonment . The time he had spent in pre - trial detention or custody both in GPE and in GPE was counted as a part of the sentence . As to GPE , he was acquitted of murder , but found guilty of wilful destruction of property and sentenced to DATE of imprisonment .","The applicant appealed the judgment . He stated , inter alia , that he had been convicted in breach of LAW as the consent from the extraditing state to try and sentence him had not been obtained . On the other hand , he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal .","On DATE ORG found the applicant \u2019s appeal admissible . On DATE it held its first hearing , whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence . His requests were granted , and the hearing was adjourned . On DATE and DATE and on DATE , DATE and CARDINAL DATE the applicant filed additional observations to supplement his appeal . Moreover , on DATE the NORP lawyer who had represented the applicant in the extradition proceedings in GPE sent a letter to \u201c the NORP ORG \u201d ( sic ) , stating that the applicant had been deported from GPE while the extradition proceedings had been pending .","DATE . On DATE the applicant filed a complaint with ORG complaining about undue delays in the appeal proceedings . The complaint was transmitted to ORG . On DATE the President of ORG found that the proceedings were postponed lawfully . The applicant sent an essentially identical complaint to ORG , which also forwarded it to ORG . In reply , the latter informed the applicant that a hearing in his case was fixed for DATE .","By a judgment of DATE ORG dismissed the applicant \u2019s appeal . It upheld the evaluation of the evidence by the first instance court in full . It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained ; in this respect the ORG referred to a document signed by the GPE acting Secretary of ORG on DATE approving the applicant \u2019s deportation order .","The applicant filed a cassation appeal , reiterating his argument based on LAW . On DATE the ORG of ORG declared the cassation appeal inadmissible for lack of arguable points of law . It considered inter alia that the document signed by the acting Secretary of ORG of GPE on DATE had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained .","In DATE , having served his sentence , the applicant was released from prison .","The relevant provisions of domestic law are summarised in GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL - CARDINAL , ECHR CARDINAL ) .","In addition , other relevant provisions of the former Code of Criminal Procedure in force at the material time read as follows :","\u201c A person who is extradited from a foreign state shall not , without a consent of the extraditing state , be charged with committing an offence and subsequently tried or surrendered to a third state for an offence he has committed prior to the extradition and in respect of which he has not been extradited .","...","( CARDINALrd paragraph added on DATE ) The time period spent in detention in a foreign state shall not be counted as a part of the overall length of detention on remand , but it shall be included in the imprisonment term to be served . \u201d","\u201c A person may only be indicted and tried for the criminal offence for which he had been extradited .","These conditions do not apply to the cases where :","CARDINAL ) a consent from the extraditing state to indict and to try the person for other offences committed before the extradition has been received ;","CARDINAL ) the offence was committed after the person had been surrendered to GPE ;","CARDINAL ) the person has not left GPE within DATE after his liberation , although he had had such possibility ;","CARDINAL ) the person had left GPE after the extradition and had returned therein . ... \u201d","Article IV of LAW of DATE between GPE and GPE , in force until DATE , read as follows :","\u201c No person shall be tried for any crime or offense other than that for which he was surrendered . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88762","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2008,"docname":"CASE OF KALMAR AND LORENCZ v. HUNGARY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the applicants brought an action against PERSON , claiming moral damages for the latter \u2019s insulting behaviour . The ORG initially suspended the proceedings pending the outcome of the criminal case being conducted against the respondent . A first judgment was eventually given on DATE but was quashed on appeal on CARDINAL DATE . Subsequently , the case was assigned to ORG . This court joined CARDINAL further cases pending between the same parties to the principal action .","The joint proceedings later continued before ORG . This court held numerous hearings DATE and DATE . Although the applicants did not attend several hearings , it appears that they requested the court to continue with their case in their absence . Ultimately , ORG found for the applicants on DATE .","On DATE Mr ORG brought an official liability action against the Attorney ORG . The case was assigned to ORG . On DATE this court adjudicated some of the plaintiff \u2019s claims and disjoined others , the examination of which was suspended pending the outcome of another case . In the latter connection , the proceedings were resumed on DATE . However , no hearing took place until DATE . Further hearings took place on DATE and DATE . According to the information in the case file , this case is still pending .","NORP In DATE PERSON was found guilty of making false accusations . On DATE he requested a retrial . According to the information in the case file , that request is still pending .","On DATE PERSON filed a criminal report against PERSON , accusing him of libel . A hearing took place on DATE , at which Mr ORG complained that he had not been properly informed of the charges against him . His motion for bias against the police authority dealing with the case was dismissed , and his ensuing complaint , filed on DATE , does not appear to have been answered .","On DATE Mr Kalm\u00e1r challenged the GPE XX \/ XXI \/ XXIII ORG for bias . His motion was rejected on DATE . According to the information in the case file , these proceedings are still pending ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104427","languageisocode":"ENG","respondent":"UKR","branch":"COMMITTEE","date":2011,"docname":"CASE OF KALYUZHNA v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Angelika Nu\u00dfberger;Ganna Yudkivska","text":["The applicant was born in DATE and lives in GPE .","On an unspecified date the Zavodsky District Court of GPE ( \u201c the ORG \u201d ) gave an unspecified decision on the claim of the applicant \u2019s former husband , PERSON , lodged against the applicant for division of their property . By a final ruling of CARDINAL DATE , ORG ( \u201c the ORG \u201d , since DATE , ORG ) , ordered PERSON to compensate the applicant for her share of their property .","In DATE ORG of GPE and ORG invited the applicant to discuss the residence registration of her daughter , O.","In DATE the applicant lodged claims with ORG of Donetsk and ORG seeking division of her common property with ORG There is no indication whether and , if so , how these claims were handled by the courts .","NORP In DATE the applicant unsuccessfully tried to have her brothers , PERSON . and GPE . , prosecuted for hooliganism and theft . She was not found to be a civil party to these proceedings .","On DATE . and PERSON . lodged a claim against the applicant challenging the validity of their mother \u2019s will over a house and belongings .","On DATE ORG partly allowed the claim .","Following a \u201c protest \u201d of ORG of DATE , ORG quashed this judgment on DATE and remitted the case to ORG which , ORG DATE partly allowed the applicant \u2019s claim .","NORP On DATE ORG upheld this judgment . On DATE the applicant appealed in cassation . On DATE she requested ORG to speed up examination of her case . By a final ruling of DATE , notified to the applicant on DATE , ORG upheld the lower court \u2019s decisions .","According to the ORG , DATE and DATE , the applicant filed CARDINAL procedural requests and CARDINAL appeals which all met procedural requirements . Moreover , of the QUANTITY hearings scheduled , CARDINAL were adjourned at the PERSON request , CARDINAL were adjourned at the applicant \u2019s request , CARDINAL were adjourned due to the PERSON or witness \u2019s failure to attend , CARDINAL was adjourned due to the applicant \u2019s failure to attend , CARDINAL was adjourned at the GPE request , and CARDINAL were adjourned for reasons beyond the parties\u2019 control . Overall , due to the applicant \u2019s requests or her failure to attend , the proceedings were delayed for about eleven moths ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-96033","languageisocode":"ENG","respondent":"ALB","branch":"CHAMBER","date":2009,"docname":"CASE OF CAKA v. ALBANIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 6-1+6-3-c;No violation of Art. 6-1+6-3-d;Violations of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , was born in DATE and is currently serving a prison sentence in GPE , GPE .","On DATE P. was murdered . On an unspecified date in DATE a criminal investigation was opened against the applicant . During the criminal investigation , the victim 's sister , PERSON , even though she had not been present at the crime scene , stated that the applicant had killed her brother . She based her testimony on the account of CARDINAL eyewitnesses , B. , C. and NORP , who , it would appear , were questioned on an unspecified date .","On DATE the judicial police , the body responsible for the conduct of the criminal investigation and the identification of the perpetrator , recommended that the criminal investigation be suspended , as the perpetrator of the crime could not be identified . However , on DATE the prosecutor filed an indictment against the applicant with ORG ( see paragraph CARDINAL below ) .","In DATE GPE was hit by civil unrest as a result of the fall of pyramid schemes . ORG depots were looted and a very considerable number of weapons were in civilian hands . The gradual restoration of ordre public necessitated frequent police checkpoints . Consequently , on DATE the NORP police forces set up checkpoints to conduct searches of people for illegal possession of firearms . In TIME of the same day , police officers on duty at a checkpoint situated on the main road between the cities of GPE and PERSON shot the applicant and X. , another person riding a motorcycle with him . As a result , X. died and the applicant was seriously wounded .","According to the police report on the incident , QUANTITY persons riding a motorcycle ( identified later as the applicant and X. ) , did not stop when ordered to do so by the police at the first checkpoint . The police at the second checkpoint reported that the applicant , who had been driving the motorcycle , had fired at the police officers with both an automatic gun and a revolver simultaneously . The police had returned fire and shot X. , the pillion passenger , dead . Notwithstanding the fact that the applicant was wounded , he had continued to shoot until he surrendered . The police reported having collected from the scene CARDINAL PERSON automatic guns ( automatik\u00eb kallashnikov ) , CARDINAL pistols ( pistolet\u00eb ) , bullets and cartridges , the motorcycle , a mask , a hat , a pair of sneakers , and other things allegedly used by the applicant and X. It appears that the automatic weapons , pistols , bullets and cartridges were sent for ballistics examination .","On DATE the applicant and another suspect , PERSON , were arrested in relation to the above event ( see paragraph CARDINAL above ) .","NORP The applicant was taken to hospital , where he stayed for TIME for medical treatment as he had been wounded . After release from the hospital on DATE , he was remanded in custody in GPE . On DATE the applicant was examined by a doctor , who found that his overall state of health was satisfactory . It was concluded that the injuries the applicant had sustained fell under the category of light bodily injuries requiring DATE rest .","On DATE the prosecutor charged the applicant with attempted murder in collusion with others and illegal possession of firearms . During questioning the same day , the applicant did not provide any information regarding the charges levelled against him . The applicant requested the presence of his lawyer , F.","On DATE the lawfulness of the applicant 's arrest was confirmed by ORG .","On DATE the prosecutor decided to discontinue the criminal investigation against PERSON , finding that he had not committed any criminal offence .","On DATE , CARDINAL DATE and DATE , when questioned by the prosecutor , the applicant was defended and represented by PERSON , another lawyer of his own choosing .","On DATE the NORP prosecutor filed a bill of indictment with ORG , accusing the applicant of the intentional murder of PERSON and attempted murder of police officers on DATE . It would appear that both criminal proceedings against the applicant were joined .","ORG commenced the trial against the applicant on DATE . CARDINAL hearings were held DATE and DATE , on which date the proceedings were transferred to ORG ( see \u201c Transfer of proceedings \u201d section below ) . CARDINAL hearings had been adjourned owing to the absence of the prosecutor , the applicant or his lawyer . In the remaining QUANTITY hearings , the applicant was represented by his lawyer , PERSON","The applicant contested the facts as submitted by the prosecution . He stated that he had been riding the motorcycle unarmed when the police officers at the second checkpoint had opened fire , without ordering him to stop . He also asked the court to summon witnesses who , at the time of the incident , had been driving on the same road .","At the hearings of DATE and DATE , CARDINAL witnesses , who had been driving on the same road and had seen the applicant while he was riding the motorcycle , testified that the applicant had not been carrying any weapons .","On DATE the prosecutor submitted a request to ORG for the transfer of the criminal proceedings against the applicant from ORG . He argued that the state of insecurity in PERSON made witnesses hesitant to testify before the court . He also mentioned the existence of \u201c pressure of various forms , even threats to the life of the prosecutor concerning the outcome of the proceedings \u201d .","On DATE ORG granted leave to transfer the proceedings from ORG to ORG , in accordance with LAW ( \u201c the ORG \u201d ) .","Pursuant to LAW ORG , ORG was required to take a decision as regards the validity of the actions carried out by ORG . No such decision was contained in the case file . The Government submitted that the case file and acts carried out by ORG were considered valid on the strength of a certificate of CARDINAL DATE issued by ORG registrar .","On DATE the applicant appointed another lawyer of his own choosing , H.","On DATE ORG commenced the trial of the applicant . CARDINAL hearings were conducted DATE and LAW DATE , the date on which the applicant was found guilty of the offences and sentenced to imprisonment .","From DATE to CARDINAL DATE QUANTITY hearings were scheduled , but adjourned owing to the absence of the applicant or his representative . No witnesses were heard and no other procedural measures were taken . On CARDINAL DATE the court informed the applicant that he could appoint another counsel given the repeated absence of his lawyer PERSON","On DATE the applicant revoked PERSON 's power of attorney . From CARDINAL DATE to DATE , during which time CARDINAL hearings were held , the applicant represented himself . No witnesses appeared or were questioned at those hearings , as a result of which they were adjourned . On DATE the prosecutor read out witness statements which had been taken during the criminal investigation . The applicant contested the statements of witnesses PERSON and NORP On DATE the applicant reappointed his previous lawyer PERSON The court decided to examine witness A. at the next hearing on DATE in the presence of the applicant 's lawyer .","On DATE the court heard the testimony of A. , who stated that the applicant was the murderer of her brother PERSON She relied on the evidence of witnesses PERSON , C. and NORP She had not been a witness at the crime scene . Neither the applicant nor his lawyer , PERSON , questioned PERSON to the applicant 's request , ORG issued several summons for the appearance of PERSON , C. and NORP However , the witnesses never appeared before the court .","At the hearing of DATE the applicant appointed PERSON to act as his lawyer alongside PERSON police officers PERSON , NORP and PERSON gave evidence at the trial . In light of the discrepancies in PERSON 's testimony at the investigation stage and the trial proceedings , the prosecutor requested leave to challenge the testimony pursuant to LAW ORG by reading out his statement made during the criminal investigation .","While the applicant and lawyer PERSON did not initially question PERSON , they requested that he be cross - examined after the reading of his statement . ORG rejected their request as they had initially waived their right to question the witness .","On DATE the applicant 's lawyer PERSON requested the court to summon PERSON for cross - examination . He repeated the request at the hearing of DATE . On the same date the court rejected the request as ill - founded . It however granted the lawyer 's request to summon CARDINAL other police officers PERSON","On DATE the applicant 's lawyer repeated his request to summon and cross - examine M. On DATE the court rejected the requests as ill - founded . It reasoned that PERSON had attended a hearing in which the accused and his lawyer had had the opportunity to put questions to him . On DATE , the court heard police officer PERSON applicant was represented by his lawyer PERSON , PERSON never appeared and were questioned before the court , despite repeated summons and information sent by the court to the respective authorities , for example ORG , ORG and ORG .","On DATE the applicant 's lawyer PERSON withdrew from representing the applicant . The applicant 's other lawyer PERSON was absent . The court decided to adjourn the proceedings until DATE .","On DATE the applicant 's lawyer PERSON withdrew from representing the applicant . His reasons related to his involvement in the defence of other criminal cases . He also mentioned procedural irregularities committed by ORG , which had not served him with written summons to appear at hearings . He alleged that the court lacked impartiality . He requested the court to proceed in accordance with section CARDINAL \u00a7 CARDINAL of the ORG .","On DATE the applicant appointed another lawyer of his own choosing , J. The court decided to adjourn the proceedings until DATE .","On CARDINAL DATE the court read a fax received from the applicant 's lawyer PERSON , whose involvement in other business did not enable him to defend the applicant . PERSON stated that he had not received any request to represent the applicant . The record of the hearing stated that the applicant wished to defend himself . The applicant stated that he had not been in possession of any weapons on DATE . He agreed to the reading out of statements of witnesses Q. , NORP and PERSON taken during the criminal investigation and waived his right to have witness NORP questioned . The prosecutor proceeded with the reading out of the above - mentioned witnesses ' statements . He then concluded with his final submissions . The applicant subsequently stated that he did not accept the charges as he had neither killed P. , nor shot at the police officers .","On DATE the ORG delivered its judgment , finding the applicant guilty as charged , and sentenced him to DATE imprisonment .","In relation to the charge of attempted murder of police officers , the ORG based its judgment on the testimonies of CARDINAL police officers PERSON and PERSON given at the hearings of DATE and DATE ( see paragraphs CARDINAL and DATE above ) and on the statements of CARDINAL witnesses made during the criminal investigation . The court took note of the crime scene investigation report , the applicant 's arrest report and the ballistics report .","In that connection , the court also found the applicant guilty of illegal possession of firearms on the strength of the ballistics report , adding that the cartridges found at the crime scene had been fired from the weapons found close to the accused . However , there was no mention in the judgment as to whether the weapons had been in the actual possession of the applicant .","In relation to the murder of P. on DATE , the ORG based its reasoning on the testimony of A. given before the trial and the statements of witnesses B. , C. , and NORP given during the criminal investigation ( see paragraphs CARDINAL , DATE and DATE above ) .","On DATE the applicant appealed against his conviction and sentence to ORG , alleging a violation of the right to a fair trial . In particular , he argued that the lack of legal assistance during the trial and the fact that the court of first instance had admitted witness statements without the possibility of cross - examination of the deponents constituted a breach of the right to adversarial proceedings . Furthermore , he had been deprived of the right to cross - examine witness PERSON who had testified at the hearing of DATE . He also maintained that , during the stage in which the parties had made their final submissions , he had not been assisted by defence counsel . The applicant was represented before ORG by ORG , who had previously withdrawn from the case on DATE ( see paragraph CARDINAL above ) .","On DATE ORG dismissed the applicant 's appeal and upheld ORG judgment . In so far as the appeal was directed against ORG refusal to allow the applicant to cross - examine witness PERSON , ORG noted that at the hearing of DATE the applicant 's counsel had stated that he had no questions to ask . The applicant had addressed only CARDINAL question to the witness , which was answered . ORG rejected the applicant 's complaint about the lack of legal assistance at the final hearing , relying on his statement that he wished to defend himself .","On DATE the applicant appealed to ORG relying on the same grounds of appeal as before ORG . He added that the record of the hearing of CARDINAL DATE had been forged by ORG in so far as his request to be defended by a lawyer had been distorted to read that he wished to defend himself .","On DATE ORG declared his appeal inadmissible as \u201c its grounds fell outside the scope of LAW ORG \u201d .","On DATE the applicant lodged a complaint with ORG about the unfairness of the proceedings . He complained about the length of his pre - trial detention and relied on LAW ( b ) and ( c ) and ( d ) of the LAW .","On DATE ORG , sitting as a bench of CARDINAL judges , declared the complaint inadmissible . It held that the applicant 's complaint did not raise any fair trial issues , but mainly concerned the assessment of evidence which was the function of the lower courts .","On DATE the applicant lodged with the ORG a notarised statement by ORG , the judge who had presided over the bench of ORG in the criminal proceedings . According to ORG , the proceedings had been transferred to ORG , to the applicant 's detriment , at a point when ORG had been nearing the end of the examination of the case and had been likely to conclude that there was insufficient evidence against him . Furthermore , PERSON maintained that ORG had admitted witness statements obtained at the police station rather than those obtained during the trial before ORG . He also maintained that ORG had not considered a ballistics report submitted during the trial before ORG , from which it transpired that the automatic guns allegedly used by the applicant belonged in fact to ORG . Moreover , he stated that the applicant 's lawyers had withdrawn from defending him during the trial before ORG as a consequence of threats to their own lives and those of their families .","The applicant also submitted CARDINAL notarised statements made by eyewitnesses who had been present TIME before the incident and had seen the applicant riding the motorcycle unarmed and had then heard the police shooting . The same eyewitnesses gave testimony before FAC on DATE and DATE ( see paragraph CARDINAL above ) .","On DATE the ORG requested the ORG to provide a copy of the entire investigation file and legible records of all hearings before FAC . On DATE the Government provided records of all the hearings held before FAC . No documents from the investigation file were provided .","DATE","During criminal proceedings , everyone has the right :","a. to be notified immediately and in detail of the charges brought against him , of his rights , and to have the possibility to notify his family or relatives ;","b. to have sufficient time and facilities to prepare his defence ;","c. to have the assistance of a translator free of charge , when he does not speak or understand the NORP language ;","\u00e7 . to present his own case or defend himself through the assistance of counsel of his own choosing ; to communicate freely and privately with him , as well as to be provided free legal counsel when he does not have sufficient means ;","d. to examine witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts .","Article CARDINAL","No one shall be obliged to testify against himself or his family or to confess his guilt .","No one shall be declared guilty on the basis of evidence collected unlawfully .","Article CARDINAL","Everyone has the right to be heard before being judged .","A person who is seeking to evade justice may not avail himself of this right .","\u201c In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . \u201d","\u201c The Constitutional Court shall decide : ...","( f ) in a ruling that shall be final , complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . \u201d","Article CARDINAL \u00a7 CARDINAL of the ORG provides that the presence of a defence lawyer shall be required when the appointed lawyer has not been provided , has not appeared or has abandoned the defence . In such circumstances the court or the prosecutor shall appoint another lawyer as substitute , who shall exercise the rights and assume the obligations of the defence lawyer .","Articles CARDINAL - CARDINAL govern the transfer of proceedings . According to the wording of Article CARDINAL , as in force at the material time , \u201c at any stage and instance during the trial , when public safety or the free will of the persons participating in the trial are impaired by serious local events which may affect the conduct of the trial and which may not be avoided by other means , ORG , further to a reasoned request by the prosecutor or the defendant , may transfer the case to another court . \u201d","Article CARDINAL provides that ORG decides in private . A decision to grant a request for the case to be transferred shall be notified to the court in which the proceedings have been conducted and the court to which the proceedings are to be transferred . The court which had previously conducted the proceedings shall immediately transfer the procedural documents to the designated court and shall order the notification of the decision of ORG to the prosecutor , defendant and private parties . Article CARDINAL \u00a7 CARDINAL states that \u201c the court designated by ORG shall give a decision as to whether the actions already carried out are valid and the extent of their validity \u201d .","Under LAW , as in force at the material time , \u201c in order to challenge , entirely or partly , the content of the testimony or when the witness refuses to testify , the parties may use the statements previously made by the witness before the prosecutor or the judicial police and which are in the case file , but only after the witness has testified to the facts and circumstances which can be contested \u201d . LAW stipulated that \u201c these statements do not constitute evidence for the facts found therein , but they can be examined by the court in order to determine the reliability of the person in question and are a constituent part of the case file \u201d .","Article CARDINAL establishes the scope of the examination of the appeal by ORG . It provides that the examination of the case by ORG is not limited to the grounds of appeal but extends to the whole case .","Under LAW , at the party 's request , ORG shall be empowered to directly re - examine previous evidence and additional new materials , if it considers necessary .","Article CARDINAL establishes which decisions may be taken by ORG . It provides that ORG may decide to dismiss the appeal and uphold the judgment , to amend the judgment , to quash the judgment and terminate the criminal proceedings , or to quash the judgment and remit the case for a fresh trial .","ORG judgments may be appealed to ORG in compliance with one of the following requirements of Article CARDINAL : a ) the criminal law has not been respected or has been erroneously applied ; b ) there have been breaches which result in the court 's judgment being declared invalid in accordance with Article CARDINAL of this Code ; c ) there have been breaches of procedural rules that have affected the adoption of the judgment .","Article CARDINAL provides that ORG examines the appeal in so far as points of law have been raised therein ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-d"],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1","6-3"],"non_violated_bulletpoints":["6-3-c","6-3-d"],"violated":true}
{"itemid":"001-57857","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1993,"docname":"CASE OF NAVARRA v. FRANCE","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-4","judges":"N. Valticos","text":["Mr PERSON , a farmer , lives in GPE , GPE . On DATE he was remanded in custody on a charge of armed robbery . During his detention on remand in GPE prison , he filed CARDINAL applications for release .","An investigating judge of the GPE tribunal de grande instance dismissed the first CARDINAL applications , lodged on DATE and DATE , by orders of CARDINAL DATE and DATE . No appeal was filed from the first order ; the second was confirmed by ORG of the Aix - en - ORG of Appeal on DATE .","On DATE the investigating judge also dismissed the third application , which had been made on DATE .","On DATE ORG found inadmissible the appeal filed by the applicant on DATE against that decision , which it declared void inasmuch as it had been made in respect of an application which did not comply with procedural requirements , not having been filed in the manner prescribed in LAW .","On CARDINAL DATE the applicant appealed to ORG , which received the file on DATE . On DATE it quashed the contested decision and remitted the case to ORG of ORG .","The file reached the registry on DATE . On DATE the principal public prosecutor at ORG notified the applicant that the hearing had been set down for DATE .","In a memorial of CARDINAL DATE Mr PERSON \u2019s lawyer complained of the failure to comply with the time - limit within which , according to LAW ( see paragraph CARDINAL below ) , the appeal of CARDINAL DATE should have been examined . He also maintained that the matter had not been decided \" speedily \" , as required by LAW CARDINAL ( article CARDINAL ) of the Convention .","On DATE ORG declared the appeal of CARDINAL DATE ill - founded and confirmed the order made on DATE dismissing the application for release of DATE . It noted as follows :","\" ...","The proceedings followed a normal course and in these circumstances it does not appear that there was a failure to comply with the provisions of LAW , as is claimed by ORG lawyer in his memorial .","... \"","On DATE the applicant appealed to ORG , alleging that ORG had not replied to the submission based on Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .","ORG dismissed this appeal on CARDINAL DATE , on the following grounds :","\" ... ORG , which found , moreover correctly , that the judgment quashed had been given within the time - limit laid down in LAW , replied sufficiently , albeit implicitly , to the submission in the memorial before it complaining of a failure to comply with the time - limit , and was not open to the criticism levelled in the second limb of the submission , which must accordingly be dismissed ;","... \"","On DATE and CARDINAL DATE the applicant lodged his fourth and fifth applications for release . The investigating judge of the GPE tribunal de grande instance dismissed them by orders of DATE and CARDINAL DATE , which were upheld by ORG of the Aix - en - ORG of Appeal on DATE and CARDINAL DATE .","On the other hand , on DATE the investigating judge allowed the sixth and last application , which had been lodged DATE .","On DATE the investigating judge made an order finding that Mr PERSON had no case to answer .","On DATE , pursuant to LAW , the applicant sought MONEY in compensation for the detention on remand that he had undergone from CARDINAL DATE to CARDINAL DATE . On CARDINAL DATE ORG of ORG declared the claim admissible but ill - founded .","As applicable at the material time , the relevant provisions of LAW are as follows :","\" Whatever the classification of the offence , the accused or his lawyer may lodge at any time with the investigating judge an application for release ...","The investigating judge shall immediately communicate the file to the public prosecutor for his submissions . He shall at the same time , by whatever means , inform any party seeking damages , who may submit observations ...","The investigating judge shall rule , by an order giving specific grounds ... , not DATE after the communication of the file to the public prosecutor .","...","When an order is made releasing the accused it may be accompanied by an order placing him under court supervision .","... \"","The PERSON of DATE added to the third paragraph a sentence , which is worded as follows :","\" However , where a decision has not yet been made on a previous application for release or on the appeal from a previous order refusing release , the DATE prescribed period begins to run with effect from the decision given by the investigating authority . \"","\" Any court called upon to rule ... on an application for release shall give its decision after hearing the prosecution and the accused or his counsel . Where the accused is not in custody , he and his counsel shall be summoned by registered letter at least TIME before the date of the hearing .","The court hearing the application shall give its decision within DATE of receipt of the application at first instance or within DATE of the appeal at second instance ; ... where no decision is forthcoming on expiry of the above time - limits , the detention on remand shall be terminated and the accused , if not detained in connection with other matters , shall automatically be released .","The [ first instance ] court \u2019s decision shall be immediately enforceable notwithstanding any appeal ; where the accused remains in detention , ORG shall give its decision within DATE of the appeal , failing which , if he is not detained in connection with other matters , the accused shall automatically be released . \"","\" ... a person who has been held in detention on remand during proceedings which have been terminated in so far as he is concerned by a finding that he has no case to answer ( non - lieu ) that has become final or by an acquittal that has become final shall be entitled to compensation where such detention has caused him damage of a clearly exceptional and particularly serious nature . \"","\" The principal public prosecutor [ at ORG ] shall prepare the case file for hearing within TIME of receiving the documents for questions relating to detention on remand , and within DATE in all other cases , and shall forward it , together with his submissions , to ORG .","ORG shall , when dealing with questions relating to detention on remand , give its decision as speedily as possible and not DATE after the appeal provided for in LAW , failing which the accused shall automatically be released , except where verifications concerning his application have been ordered or where unforeseeable and insurmountable circumstances prevent the matter being decided within the time - limit laid down in the present Article . \"","A PERSON of DATE , which came into force on DATE , reduced the time - limit from DATE .","\" The criminal division hearing an appeal on points of law against the decision of ORG concerning detention on remand shall rule within DATE of the file \u2019s receipt at ORG , failing which the accused shall automatically be released .","... \""],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-4"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67786","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2004,"docname":"D.H. v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr ORG , is a NORP national , who was born in DATE and lives in PERSON He was represented before the ORG by PERSON , a lawyer practising in GPE .","On DATE the car driven by the applicant collided with a different car at a road crossing in PERSON . No one was injured and the police found no alcohol on the drivers\u2019 breath . The police withheld the driving licence from the applicant on the spot .","On DATE ORG in PERSON decided that the driving licence would not be restored to the applicant prior to a final decision on the case . The decision stated that the applicant had not respected a red traffic light and that it could be reasonably expected that a court or other competent authority would prohibit him from driving motor vehicles . Reference was made to ORG ) of FAC .","On DATE the applicant appealed . He alleged that the decision was based on the false statement of the other driver . The applicant argued that a witness had confirmed that the traffic light had been green when he had entered the crossing .","On DATE ORG in PERSON upheld the decision of DATE . ORG held that it was irrelevant for the purpose of the decision on withdrawal of the driving licence how the matter was qualified from the point of view of the criminal law or minor offences law . ORG had regard to the facts of the case as established at that time . The reasons invoked by the applicant were irrelevant in the context of deciding on the withdrawal of the driving licence . The applicant had to submit his objections or proofs in the context of the proceedings on the minor offence which was imputed to him .","On DATE FAC in PERSON found that the applicant had not complied with FAC thereby committing a minor offence under LAW ) of LAW of DATE . A fine of CARDINAL NORP korunas ( SKK ) was imposed on the applicant and he was prohibited from driving motor vehicles for DATE . The period from DATE when the police had withheld the applicant \u2019s driving licence was to be deducted from the above period of DATE . The police authority established that the applicant had failed to respect a red traffic light and had thereby caused the accident .","On DATE the applicant appealed and argued that the investigation had been flawed .","On DATE ORG in PERSON quashed the first instance decision for procedural shortcomings . It ordered ORG to obtain an expert opinion and to take further evidence with a view to establishing the relevant facts .","On DATE the applicant requested that his driving licence should be restored to him .","On DATE ORG in PERSON informed the applicant that the reasons for withdrawal of his driving licence as set out in the decision of DATE still existed .","On DATE ORG stayed the proceedings concerning the minor offence of which the applicant was accused on the ground that an expert opinion had to be obtained . On DATE an expert was appointed .","On DATE the applicant requested ORG in PERSON to determine the case as the length of the proceedings was excessive .","On DATE FAC informed the applicant that the case could not be proceeded with as the expert had failed to submit his opinion .","On DATE the applicant asked the ORG of ORG to quash the above decision of DATE relating to the withdrawal of his driving licence .","The expert submitted his opinion on DATE .","On DATE FAC informed the applicant that the case could not be dealt with as the file had been submitted to institutions to which the applicant had complained about shortcomings in the proceedings .","On DATE ORG returned the driving licence to the applicant . The relevant police note states that the reasons for withholding the driving licence had ceased to exist on DATE . Reference was made to the decision of CARDINAL DATE under which the applicant had been prohibited from driving motor vehicles for DATE . The document further reads as follows :","\u201c For this reason , and even in the event that [ the applicant ] were again to be examined in respect of the minor offence in question , he could be prohibited from driving for the said DATE . This period expired on DATE . For this reason the driving licence will be returned to [ the applicant ] which does not mean that the case is closed . \u201d","On DATE ORG in PERSON found , in reply to the applicant \u2019s complaint , that ORG in PERSON had acted erroneously in that it had stayed the proceedings pending the submission of an expert opinion and that it had not used all available means with a view to obtaining the expert opinion without unjustified delay . The administrative authority had not displayed due diligence when proceeding with the case . The public prosecutor therefore asked ORG in PERSON to remedy the shortcomings found .","On DATE FAC again found that the applicant had committed a minor offence under LAW ) of LAW of DATE . A fine of SKK CARDINAL,CARDINAL was imposed on the applicant and he was prohibited from driving motor vehicles for DATE including the period during which the driving licence had been withdrawn from him . The decision stated that an appeal with suspensive effect could be filed against it .","On DATE the applicant appealed .","On DATE ORG in PERSON discontinued the proceedings . The decision referred to Section CARDINAL(CARDINAL)(f ) of LAW of DATE and it stated that the liability for the minor offence in question had lapsed as DATE had passed since the date when it had been committed . Since the applicant could no longer be held liable for any minor offence arising out of the above accident , the reason for proceeding with the case had fallen away .","The applicant submits that he can not claim compensation for damage which he suffered as a result of the accident of DATE as a claim for compensation on the basis of the compulsory insurance of motor vehicles is dependent on the result of the police investigation . He further submits that he learned , on DATE , that the insurance company had informed the other driver involved in the accident that it had arranged for him to be compensated from the applicant \u2019s insurance having regard to the outcome of the examination of the accident .","Section CARDINAL(CARDINAL)(a ) entitles the police to withhold a driving licence from a driver who grossly violates LAW or other generally binding rule relating to it and thereby directly threatens the security or disturbs the smooth flow of road traffic or causes a road traffic accident .","Section CARDINAL(CARDINAL ) provides that FAC is to deliver a decision , within DATE , on the withdrawal of a person \u2019s driving licence where the reasons for withholding the licence continue or where it can be reasonably expected that a court or a different competent authority will prohibit its holder from driving motor vehicles . Otherwise the driving licence is to be restored to the person concerned without delay .","Under paragraph CARDINAL of LAW , the authorities dealing with the case have to examine at all stages of the proceedings whether the reasons for withholding a person \u2019s driving licence still exist . When such reasons fall away , the driving licence is to be restored to its owner without delay .","ORG ) excludes the application of the general rules on administrative proceedings to decisions under LAW ) relating to the withdrawal of a driving licence .","Section CARDINAL provides that a minor offence can not be examined , inter alia , after the lapse of DATE from the moment when it was committed .","Section CARDINAL(CARDINAL)(b ) governs minor offences against road traffic security . It extends to cases where a person violates the relevant regulations and thereby puts in danger the security of road traffic , disturbs its smooth flow or causes an accident . LAW provides that a person who committed such a minor offence can be fined up to SKK CARDINAL,CARDINAL and he or she can be prohibited from driving motor vehicles for a period DATE .","Pursuant to LAW ) an administrative authority discontinues proceedings relating to a minor offence where the liability for such minor offence has ceased to exist .","Under LAW ) and ( CARDINAL ) , participants in administrative proceedings can seek a judicial review of the decision on a minor offence after the exhaustion of the ordinary remedies in the context of administrative proceedings ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-87175","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2008,"docname":"CASE OF FOKA v. TURKEY","importance":3,"conclusion":"No violation of Art. 3;No violation of Art. 5;Violation of Art. 10;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of a violation sufficient","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;J\u00e1n \u0160ikuta;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and currently lives in GPE .","At the material time she was living alone in her family house in the village of GPE Triada , GPE , in the NORP region of northern GPE . She was a teacher at the NORP - Cypriot elementary school in that village .","The parties disagree as to the facts of the case .","In DATE the applicant went to spend DATE with members of her family in southern GPE . On DATE she was transported by a ORG bus with other \u201c enclaved \u201d NORP to the FAC crossing point in GPE . From there they were due to be taken to GPE Triada by a bus driven by a NORP settler .","At the barricade , which was guarded by NORP and\/or \u201c GPE \u201d ( \u201c TRNC \u201d ) police and customs officers , the applicant and the other CARDINAL or CARDINAL enclaved NORP - Cypriot women who were on the bus with her were searched . When the customs officers asked to search the applicant again , she refused , claiming that she had already been searched and nothing had been found . She was then taken to a small room near the barricade and was told that she would be searched by police officers . The applicant continued to refuse to submit to another search . The officials then tried to force the applicant into a small private car . She resisted and started shouting . The officials covered her mouth with their hands and started hitting her on her arms and feet in order to force her into the car . They pushed her in the car headfirst and then took hold of her legs . They managed to put her in the car with her legs upwards and feet pointing towards the roof .","She was subsequently taken to a building that appeared to be a police station . There her bag was thoroughly searched and whenever she tried to see what the officers were doing she was hit on the head and shoulders by a person whom she was able to identify from the discussions held among the officials present as a member of the NORP secret service . She was then taken to an adjacent room where she was interrogated and mocked . When the interrogation was over , the bag was returned to her empty . The officers also kept part of her money \u2013 CARDINAL GPE pounds ( ORG ) of the ORG CARDINAL she had on her .","Afterwards , the officers took her in the same car to the bus that would have taken her to PERSON . As she did not feel well , she asked to be allowed to return to southern GPE . However , the officers started to hit her once again and forced her into the bus . CARDINAL of the women on the bus told them to \u201c let her go or you will kill her \u201d .","Upon her return to PERSON , the applicant asked to be taken to a female NORP - Cypriot doctor in nearby GPE but her request was refused . DATE a NORP - Cypriot took the applicant to the above - mentioned doctor . The doctor offered her medical treatment but refused to certify the existence of bruises on her body .","During DATE that followed stones were thrown at her house .","On DATE the applicant was visited at the school of GPE Triada by representatives of ORG , to whom she showed the bruises she had on her legs , hands and head . In its relevant parts , the report of Doctors of the ORG reads as follows :","\u201c Although [ PERSON ] knew we were coming and had agreed to meet us , nevertheless when she first saw us she became very nervous . Her respiration increased , and she seemed to have trouble breathing . We reassured her that we had come from ... Doctors of the World but it still took TIME to be able to speak normally . The first thing she did , somewhat frantically , was to show us the bruises up and down her legs which she received , she says , as a result of being beaten by the police . At the time of our visit , she said the beating had occurred over DATE . She also said the police were from the neighbouring town of GPE , QUANTITY away from PERSON . She claims that the reason she was beaten is that she had tried to bring across the border some textbooks for the children and some religious crosses , after having visited relatives [ on ] the NORP side of GPE over DATE . She claims she was detained , beaten , interrogated many times , and released TIME . She also claims that she is experiencing a lot of pain in the back of her head , her neck and her lower back as a result of this beating . She says that the police came from the station of NORP and systematically harass her ; they often arrive in the village , and either follow her or simply walk around in what she interprets as an attempt to intimidate her and others who might have rebellious thoughts or want to help her . She claims the police keep her under constant surveillance . \u201d","DATE , a representative of ORG in GPE ( ORG ) visited the applicant and reported that she had bruises and blood stains on her shins and thighs . On DATE a medical officer of ORG was denied permission to visit the applicant . The officer was eventually granted permission on DATE . Accordingly , the medical officer visited the applicant and examined her on DATE . The applicant appended a \u201c note to the file \u201d in this respect by the Humanitarian Branch of the ORG of ORG dated CARDINAL DATE . This note read as follows :","\u201c On DATE the Humanitarian Branch was informed by ORG that GPE . was ill treated and arrested by ORG when crossing to the north on CARDINAL after a DATE \u2019s stay in the south and that a team of the \u201c Doctors of the World \u201d has visited her in Ay . PERSON on DATE to question her about her mistreatment .","On DATE . O. sector CARDINAL and the interpreter visited PERSON . in the school as requested by ORG . She stated that she was beaten by hand from ORG in the office at FAC . and another office somewhere in GPE on the head , neck and back . She said that on DATE about TIME a team of CARDINAL persons ( QUANTITY male doctors , CARDINAL lawyer and CARDINAL official from a presidential palace not nearer described ) has been visiting her . She gave the same statement to them as ORG and showed bruises and blood effusions on shin bones and thighs as she did to ORG . The team of the \u201c doctors of the world \u201d left her after TIME and they used the LANGUAGE language only while speaking to PERSON . ORG then proceeded to PERSON station for further clarification . All ORG officers however were very reluctant in answering ORG questions and very reserved . On DATE TIME ORG Personnel from the LP in GPE has been sent to TCPE PERSON to inform that PERSON accompanied by ORG Sec CARDINAL intends to visit PERSON . again in order to have her injuries examined . However permission was not granted at that stage . PERSON tasked LAW to investigate and liaise with TKCYP police at ORG in order to get permission for the medical exam . \u2018 Clearance \u201d was granted on CARDINAL and the message relayed to ORG CARDINAL to set up the examination on DATE which was then carried out successfully . See GPE . Rep. PERSON CARDINAL dated CARDINAL plus attached note of ORG ) .","Investigation on the confiscated items is still ongoing by LAW . \u201d","The applicant claimed that she had been under constant surveillance by the local police and subjected to further harassment , including threats that she would be forcibly expelled from northern GPE or killed .","In a letter dated DATE the applicant \u2019s lawyer informed the ORG that in DATE the applicant had needed to seek urgent medical treatment in southern GPE . However , the applicant had then not been allowed by the NORP military and the \u201c LOC \u201d authorities to return to her home and property in GPE Triada and had therefore been living in GPE ever since .","On DATE the applicant , along with CARDINAL other teachers from the PERSON elementary school and CARDINAL students , crossed over to southern GPE via the FAC checkpoint . DATE the group flew to GPE on an excursion organised by the NORP - Cypriot and\/or NORP authorities for DATE in order to take part in various anti - NORP campaigns that received considerable publicity .","On DATE , at TIME , the applicant , who was returning from southern to northern GPE , was subjected to routine police and immigration control by NORP - Cypriot officials at the FAC checkpoint . When the officers asked the applicant if she had anything to declare she said she did not . When they asked her to give them her handbag for search purposes , she refused to do so , thus preventing the officers from executing their duties and committing an offence under \u201c GPE \u201d laws ( section CARDINAL of the Customs and Excise Law , no . CARDINAL of DATE ) .","When a female police officer arrived , the applicant continued to resist . She was then requested to accompany the officials to the Lefko\u015fa police headquarters ( PERSON ) for further examination . She once again resisted and started kicking and shouting that she did not recognise any legal authority in northern GPE . Subsequently , she was led to a police car . She refused to get into the car and stated that she wanted to return to southern GPE . She was then driven to police headquarters . The NORP police used only force that was reasonable and necessary . The applicant may have caused injury to herself in an effort to resist the body search and efforts to take her to the police station . This was not evident , however , as she was wearing thick dark stockings .","Once at the police headquarters , the applicant continued to act irrationally , resisting the police officers and pushing them away . Eventually , a female police officer searched her handbag . She found CARDINAL silver necklaces and CARDINAL gold crosses , items that were subject to customs duty and that the applicant had refused to declare . The applicant agreed to pay the equivalent of MONEY as customs duty and\/or fine . Furthermore , various other items were found in her bag , such as books and brochures . It was considered that these contained anti - NORP , racist and defamatory material liable to incite racial hatred and aggravate inter - communal relations . The authorities then attempted to carry out a body search , which the applicant resisted . The applicant attacked the female customs officer , who called for police assistance . During the body search , radio - cassettes were found hidden inside the applicant \u2019s clothing . The authorities kept all the items for the purposes of further examination . The applicant was detained only for a transitory period to enable completion of the search under more appropriate circumstances and to calm her down . She was not under arrest during this period and was offered refreshments , which she refused to take .","Having paid the fine , the applicant returned to her village on the bus with other NORP Cypriots .","On DATE the applicant visited the health centre of LANGUAGE ( Dipkarpaz ) and asked for a medical report to certify that she had been beaten . The doctor on duty , not being a private practitioner , offered to examine the applicant if she were intending to lodge a complaint with the police . The doctor would then have examined the applicant and written up her findings on the form supplied by the police . However , the applicant failed to complain to any NORP - NORP authority and did not visit any doctor before or after DATE . On DATE she was examined by a ORG doctor in the presence of a NORP - Cypriot doctor at the health centre in PERSON . The Government appended a ORG medical report of a routine interview and examination of the applicant by a ORG medical officer in the presence of a local doctor on CARDINAL DATE . The report identified \u201c scratches on the applicant \u2019s back [ and ] right calf \u201d .","The CARDINAL \u201c Doctors of the World \u201d , CARDINAL GPE , CARDINAL NORP and CARDINAL NORP citizens , had entered the \u201c LOC \u201d as tourists intending to go to PERSON but upon entry , contrary to their declaration to the \u201c GPE \u201d authorities , they had hired a car and apparently visited the area in question .","On DATE the books , brochures and photos that had been taken from the applicant on CARDINAL DATE , were returned to her in the presence of the NORP - Cypriot representative of the village . However , the NORP - Cypriot authorities kept QUANTITY cassettes , CARDINAL paperbacks , a diary and a postcard which they considered as likely to provoke racial hatred and anti - NORP enmity . The cassettes , which had been recorded in GPE , contained songs and poems dedicated to the so - called NORP who allegedly lived in LOC region of GPE , to ORG ( ORG ) movement and to those killed in terrorist activities carried out against the NORP . The other articles contained propaganda and a map of GPE showing the border area marked in blood .","In DATE , when the applicant retired from her teaching post , arrangements were made between the NORP - Cypriot and NORP - Cypriot authorities to replace her as teacher . The applicant has been living in southern GPE ever since .","As from DATE new measures had been adopted by the \u201c NORP \u201d authorities regarding crossings from northern to southern GPE and vice versa through specified checkpoints . NORP Cypriots now had free access to the north and NORP to the south upon presentation of an identification document .","The Government have produced several documents before the ORG . In so far as relevant , their content can be summarised as follows .","In his report , police officer PERSON stated that the applicant had constantly insulted GPE and used to bring a NORP flag to school lessons . She was a fanatical nationalist who behaved strangely , pretended to have received death threats and was asocial . She had wanted to enter the territory of \u201c LOC \u201d without an identification card , passport or other travel document and had tried to avoid the border control . On DATE she had been scratched by her cat ; the doctors who visited her had diagnosed that she was in good health .","In a statement of CARDINAL DATE , customs officer PERSON stated that on DATE he was checking bags and luggage of persons crossing at the FAC border . The applicant had not allowed him to search her bags and had resisted . She had started swearing loudly at the officers and at NORP people in general . When the custom officers intervened , the applicant had assaulted them . She had then been brought to a police station where she had been fined for having tried to cross the border without declaring the necklaces and the gold crosses . She had paid cash . Although the police had acted in good faith , the applicant had been constantly aggressive towards them and had used racist expressions .","Police PERSON stated that at the relevant time , it was the general practice of the \u201c TRNC \u201d custom officers to check the bags of people crossing the GPE palace border and to confiscate goods that needed to be declared but were not . The applicant had refused to have her bag checked and had caused trouble . She had been brought to a police station where her bags had been searched . In addition to the undeclared necklaces and gold crosses , books and tape recordings insulting the \u201c GPE \u201d and NORP people in general had been found in her possession and confiscated . During her stay at the police station , the applicant had not been ill - treated or harassed ; on the contrary , she had caused problems to the officers and refused everything that was offered to her including water .","Police Sergeant I\u015fin Sevindik stated that on CARDINAL DATE the applicant had refused to have her bag searched . She had started shouting and had been taken to a police station . After she had paid the fine , she had been taken back to the ORG entry point . PERSON had not seen the applicant being forced to do anything or being ill - treated . A similar statement was made by Inspector PERSON ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3","5"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77749","languageisocode":"ENG","respondent":"BIH","branch":"CHAMBER","date":2006,"docname":"CASE OF JELI\u010cI\u0106 v. BOSNIA AND HERZEGOVINA","importance":1,"conclusion":"Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"J\u00e1n \u0160ikuta;Josep Casadevall;Kristaq Traja;Matti Pellonp\u00e4\u00e4;Nicolas Bratza;Rait Maruste","text":["The applicant was born in DATE and lives in GPE .","DATE and DATE the applicant deposited in total MONEY ( ORG ) in her savings account at the then ORG - owned GPE banka GPE Filijala PERSON . In GPE , as well as in other successor GPE of the former ORG ( \u201c SFRY \u201d ) , such savings are commonly referred to as \u201c old \u201d foreign - currency savings , having been deposited prior to the dissolution of the SFRY . The relevant background information on this subject is set out in detail in the ORG \u2019s decision on the admissibility of the present application ( see PERSON v. GPE DATE . ) , no . CARDINAL , ORG CARDINAL-XII ) .","On DATE the balance in the applicant \u2019s account , which included accrued interest , was DEM CARDINAL ( in the former SFRY , foreign - currency deposits earned high interest ) .","On several occasions in DATE and DATE , the applicant managed to withdraw in total PERSON , regardless of statutory restrictions which had been introduced in DATE .","On DATE the applicant initiated civil proceedings against the ORG banka , the legal successor of the GPE banka GPE Filijala PERSON , seeking the recovery of her entire \u201c old \u201d foreign - currency savings and accrued interest .","On DATE the Banja Luka Court of First Instance established that the balance in the applicant \u2019s account indicated above was DEM CARDINAL , including accrued interest . The court also found that the applicant had DEM CARDINAL,CARDINAL in another account at the same bank . The ORG banka was ordered to pay the applicant , within DATE , DEM CARDINAL ( MONEY ( ORG ) ) , default interest on the above amount at the rate applicable in the country of the currency ( namely GPE ) from DATE , legal costs in the amount of MONEY ( approximately EUR CARDINAL ) and default interest on the last - mentioned amount at the statutory rate from the date of the judgment .","On DATE the Banja Luka Court of First Instance mistakenly held that the ORG banka had not appealed against the judgment of CARDINAL DATE and accordingly issued a writ of execution ( rje\u0161enje o izvr\u0161enju ) . On DATE the Banja Luka Court of First Instance established that an appeal had in fact been submitted . On DATE the Banja ORG rejected that appeal and the first - instance judgment of CARDINAL DATE therefore became enforceable .","Meanwhile , the applicant filed an application with FAC , who referred the application to ORG ( the human rights bodies set up by Annex DATE LAW ) .","On DATE ORG found a violation of LAW No . CARDINAL arising from a failure to enforce the judgment of CARDINAL DATE . ORG held ORG responsible and ordered it to ensure full enforcement without further delay .","After the ORG banka had failed to execute the judgment voluntarily , on DATE the competent court sent a fresh writ of execution to ORG ( ORG PERSON ) .","On DATE ORG of the Republika Srpska rejected an appeal on points of law ( revizija ) against the judgment of DATE .","On DATE the writ of execution was returned to the competent court , execution having been impossible on account of a statutory prohibition ( see paragraph CARDINAL below ) .","On DATE the applicant converted part of her savings ( DEM CARDINAL ) into privatisation coupons under LAW DATE . She subsequently sold those coupons on the secondary market , allegedly for LAW .","On DATE the privatisation of the ORG banka was completed and the applicant \u2019s \u201c old \u201d foreign - currency savings became a public debt of the Republika Srpska pursuant to section CARDINAL of LAW DATE .","On DATE and CARDINAL DATE the applicant converted a further part of her savings ( ORG CARDINAL in total ) into privatisation coupons as before . She subsequently sold those coupons on the secondary market , allegedly for ORG CARDINAL,CARDINAL in total .","On DATE Bosnia and GPE took over the debt arising from \u201c old \u201d foreign - currency savings from its constituent units pursuant to section QUANTITY of ORG DATE .","The judgment of CARDINAL DATE has not yet been enforced .","Enforcement of such judgments has been prevented in ORG since DATE in accordance with the relevant instructions of the government of PERSON ( ORG o obustavljanju isplate \u201c stare \u201d devizne \u0161tednje , ORG of ORG ( \u201c ORG RS \u201d ) no . CARDINAL of CARDINAL DATE , and PERSON , ORG no . CARDINAL of DATE ) and the following legislation :","( a ) The Foreign - Currency Transactions Act CARDINAL ( Zakon o deviznom poslovanju , ORG no . CARDINAL of DATE , amendments to which were published in ORG no . CARDINAL of DATE ) ;","( b ) The Postponement of Enforcement Act DATE ( Zakon o odlaganju od izvr\u0161enja sudskih odluka na teret sredstava bud\u017eeta PERSON po osnovu isplate naknade materijalne i nematerijalne \u0161tete nastale uslijed ratnih dejstava i po osnovu isplate stare devizne \u0161tednje , ORG no . CARDINAL of DATE , amendments to which were published in OG RS no . CARDINAL of DATE ) ;","( c ) The Foreign - Currency Transactions Act DATE ( Zakon o deviznom poslovanju , ORG no . CARDINAL of DATE ) ;","( d ) LAW DATE ( Zakon o privremenom odlaganju od izvr\u0161enja potra\u017eivanja iz bud\u017eeta PERSON , ORG no . CARDINAL of DATE ) ;","( e ) The Settlement of Domestic Debt Act DATE ( Zakon o utvr\u0111ivanju i na\u010dinu izmirenja unutra\u0161njeg duga PERSON , ORG no . CARDINAL of DATE , amendments to which were published in ORG no . CARDINAL of DATE ) ; and","( f ) The Old Foreign - Currency Savings Act DATE ( Zakon o izmirenju obaveza po osnovu stare devizne \u0161tednje , ORG Herzegovina ( \u201c ORG \u201d ) no . CARDINAL of DATE \u2013 \u201c the DATE Act \u201d ) .","In accordance with section CARDINAL of LAW DATE ( Zakon o po\u010detnom bilansu stanja u postupku privatizacije dr\u017eavnog kapitala u bankama , ORG no . CARDINAL of DATE , amendments to which were published in OG RS no . CARDINAL of DATE ) , as amended , liability for any debt arising from \u201c old \u201d foreign - currency savings shifts from the bank in which the savings have been deposited to the PERSON upon the completion of the bank \u2019s privatisation .","On DATE Bosnia and GPE took over from its constituent units the debt arising from \u201c old \u201d foreign - currency savings ( section QUANTITY of LAW ) .","LAW has been in force since DATE . The following are its relevant provisions .","\u201c ( CARDINAL ) This Act defines the procedure , manner and deadlines for the fulfilment of the obligations of GPE arising from old foreign - currency savings deposited in local banks in the territory of GPE .","( CARDINAL ) While GPE shall be responsible for the fulfilment of obligations arising from old foreign - currency savings , ORG , PERSON and PERSON of GPE and GPE shall provide the means .","...","( CARDINAL ) In accordance with LAW , successor GPE to the former ORG of GPE shall be liable for foreign - currency accounts opened at banks which had their seat in their respective territories . GPE and GPE shall provide assistance , within the scope of its international activities , to the holders of such foreign - currency accounts ...","( CARDINAL ) GPE and GPE shall fulfil its obligations defined in DATE and CARDINAL above following a verification process . \u201d","\u201c ( CARDINAL ) Under this LAW , old foreign - currency savings are foreign - currency savings in banks located in the territory of GPE as at DATE , including interest earned until DATE , less any payment after that date and any funds transferred to special privatisation accounts .","( CARDINAL ) NORP foreign - currency savings defined in paragraph CARDINAL above shall not include foreign - currency savings in branch offices located in the territory of GPE of the GPE banka , Invest banka or other foreign banks . \u201d","\u201c According to preliminary data ... old foreign - currency savings amount to CARDINAL NORP markas . The amount shall be determined in the verification process . \u201d","\u201c Any interest accrued after DATE but not paid shall be cancelled . Interest for the period DATE and the entry into force of this Act shall be calculated afresh at an DATE rate of PERCENT . \u201d","\u201c The fulfilment of obligations arising from old foreign - currency savings , if not verified in accordance with this LAW , can only be requested in court proceedings . \u201d","\u201c ...","( CARDINAL ) Following the verification process , each claimant shall be provided with a certificate which identifies him or her and the amount of his or her old foreign - currency savings .","( CARDINAL ) The certificate referred to in paragraph CARDINAL above ... shall include , inter alia , the following :","...","( c ) a statement that the claimant will renounce any legal action following a cash payment ;","... \u201d","\u201c ...","( CARDINAL ) Following the verification process , a written decision shall be given to each claimant .","( CARDINAL ) It shall be permitted to appeal against a [ first - instance ] decision to the [ competent second - instance body ] . It shall be permitted to pursue an administrative dispute before the competent court against a [ second - instance ] decision .","( CARDINAL ) The legislation concerning administrative procedure of the Entities and District shall apply to the verification process . \u201d","\u201c An application for verification can be submitted by [ DATE ] and the verification process shall be completed by [ DATE ] . \u201d","\u201c ...","( CARDINAL ) Should the claimant accept the amount determined in the verification process , the claimant shall sign a verification certificate . Following the claimant \u2019s waiver of the right to appeal , a maximum of CARDINAL NORP markas , or the total amount of savings CARDINAL NORP markas , shall be paid ...","( CARDINAL ) Furthermore , by DATE a maximum of CARDINAL NORP markas , or the total amount of savings lower than CARDINAL NORP markas , shall be paid . The remaining amount shall be reimbursed in ORG bonds in accordance with this Act ...","... \u201d","\u201c ... All ORG bonds shall be issued at the same time ... at the latest by DATE on the following conditions :","( a ) they shall become due within DATE and at the latest by DATE ... ;","( b ) they shall earn interest at an DATE rate of PERCENT ;","( c ) they shall be redeemable before their maturity . \u201d","\u201c ( CARDINAL ) LOC judicial decisions concerning old foreign - currency savings shall also be subject to verification ...","( CARDINAL ) ... The provisions of this LAW concerning the cancellation of interest , cash payments and ORG bonds shall apply . \u201d","\u201c The competent court shall of its own motion submit any pending case to the verification process in accordance with this LAW . \u201d","This Act was in force from DATE until DATE . The following were the relevant provisions :","\u201c A person who has \u2018 old\u2019 foreign - currency savings in a bank located in ORG and who is a citizen of PERSON at the date of the entry into force of this LAW shall be entitled to coupons for the purchase of shares pursuant to this LAW .","A person who is entitled to coupons in accordance with this section may decide to convert into coupons his or her entire savings or a part thereof . \u201d","The privatisation coupons acquired in accordance with the above provisions were transferable ; this included the possibility of selling them on the secondary market ( section CARDINAL(CARDINAL ) ) . Any conversion into privatisation coupons was irrevocable ( section CARDINAL(CARDINAL ) ) .","This Act has been in force since DATE . Section CARDINAL(CARDINAL ) provides that \u201c old \u201d foreign - currency savings may be used for the purchase of ORG - owned business LOC and garages on condition that a minimum of PERCENT of the price is paid in cash .","In accordance with LAW NORP zakon ORG , ORG . CARDINAL of DATE and CARDINAL of DATE , amendments to which were published in ORG . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of CARDINAL DATE ) , non - enforcement of a final and enforceable decision of the former ORG amounts to a criminal offence :","\u201c Any official of the institutions of GPE , of the Entities or of GPE of GPE who refuses to enforce a final and enforceable decision of ORG , of ORG , or who prevents the enforcement of any such decision , or who frustrates the enforcement of the decision in some other way , shall be punished by imprisonment for a term DATE . \u201d"],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110445","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF DAMIR SIBGATULLIN v. RUSSIA","importance":3,"conclusion":"Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["The applicant was born in DATE and is serving a sentence in a correctional colony in GPE , GPE .","Criminal proceedings were instituted against the applicant in GPE . The prosecution suspected that in DATE he and PERSON had robbed and murdered an elderly woman in GPE . After the murder they had allegedly packed the victim \u2019s body in a box and given the box to bus drivers at a local market to transport it to a supermarket in another town . The applicant and his accomplice had also allegedly sold the victim \u2019s property , including furniture , carpets , clothes , and household utensils , to a number of individuals in DATE following the murder .","According to the Government , after committing the criminal offences the applicant fled GPE and returned to GPE . On an unspecified date NORP prosecution officials opened a criminal case against the applicant for crimes allegedly committed in GPE . On DATE the applicant was arrested and placed in a detention facility in GPE .","In DATE the applicant was committed for jury trial .","On DATE ORG initiated the jury selection process . CARDINAL people reported for jury duty on DATE .","Three potential jurors were excused for personal reasons . The prosecution successfully challenged CARDINAL potential juror for cause and made CARDINAL successful peremptory challenges . The defence made CARDINAL jury challenges for cause and CARDINAL peremptory challenges , which were accepted .","A jury of CARDINAL was selected and CARDINAL alternates appointed . It appears from the record of the ORG responses to the questions asked by the presiding judge that close relatives of CARDINAL jurors worked for the police and at ORG . In particular , the husband of juror no . CARDINAL and the son of juror no . CARDINAL worked as traffic police officers . The son - in - law of juror no . CARDINAL was employed by the Service for the Execution of Sentences . The husbands of jurors QUANTITY . CARDINAL and CARDINAL worked for the police as telecommunications and radio operators respectively . In addition , CARDINAL jurors on the panel had been victims of criminal offences . In DATE juror no . CARDINAL had been attacked by a drunk person , but the matter was subsequently settled out of court . In DATE the son of juror no . CARDINAL died as a result of a house collapse .","After the jury had been empanelled and sworn in , defence counsel challenged the entire jury venire upon account of partiality . The defence alleged that the fact that certain jurors had been victims of criminal offences could influence their judgment . The challenge for the array was dismissed .","On DATE the President of ORG sent a letter to NORP law - enforcement officials asking for assistance . The letter , in so far as relevant , read as follows :","\u201c In compliance with ORG ( GPE , DATE ) , which came into force for GPE on DATE and for GPE on DATE , ORG asks competent officials of GPE to provide legal assistance in a criminal case ...","According to the case - file materials all the witnesses the court wants to call to testify in the present case live in GPE .","In this respect , [ I ] ask you to provide legal assistance in ensuring the appearance of the witnesses in the criminal case before ORG ... at TIME on DATE , by serving the individuals listed below with the enclosed summons and by providing [ the Ivanovo Regional ] court with documents confirming that the summonses have been served :","[ ORG enclosed a list of CARDINAL witnesses , including their dates of birth and home addresses . All but CARDINAL of the witnesses , lived in GPE . The remaining CARDINAL were registered in the town of GPE ] . \u201d","A similar letter was sent on DATE by ORG to ORG of GPE .","On DATE ORG issued a decision , which read as follows :","\u201c [ The applicant ] is accused of murdering , on DATE , together with Mr A. , an elderly woman , PERSON , in GPE , with the intention of taking her property .","[ The prosecution ] included PERSON on the list of those to be heard in court as witnesses for the prosecution ... PERSON [ who had already been found guilty of those offences by a court in GPE and sentenced to DATE imprisonment ] is currently serving his sentence in [ a correctional colony ] in the town of ORG in GPE of GPE .","Having regard to the fact that pursuant to LAW all items of evidence in a case , including statements by witnesses , are to be examined in open court , [ I ] consider it necessary to take steps to ensure the presence of that witness at a court hearing , in compliance with the requirements of international law .","Paragraph CARDINAL of Article CARDINAL of LAW , which defines how a person who is detained in a foreign ORG is to be called to a court hearing , refers to paragraph CARDINAL of LAW , by virtue of which a request for legal assistance is to be submitted in accordance with an international agreement between GPE [ and the foreign State ] . ORG ( GPE , DATE ... ) ... plays the role of that international agreement in the present case .","Article CARDINAL of the ORG provides for the possibility of conveying a person who is serving a sentence ( if he agrees ) to be questioned as a witness , following a decision by ORG requesting ORG .","By virtue of LAW the actions in question which require authorisation by a prosecutor ( a court ) are to be carried out by prosecuting authorities within the procedure defined by ORG . \u201d","On DATE the President of ORG , relying on the norms of ORG ( \u201c the GPE Convention \u201d ) , sent similar letters to the offices of ORG and that of GPE . The court president asked the prosecuting authorities of the both countries to convey the applicant \u2019s associate , PERSON , to GPE for him to testify in open court in the criminal case against the applicant .","NORP In DATE ORG received information regarding attendance by CARDINAL witnesses from the list . A judge from ORG in GPE informed ORG that the whereabouts of CARDINAL witness were unknown and that another witness could not travel to GPE in view of his difficult financial situation . The judge also noted that the second witness stood by the statements he had given to the investigating authorities .","On DATE and DATE ORG received e - mails from CARDINAL other witnesses who , in similar wording and citing their difficult family situation and poor health , informed the court that they were unable to attend the trial . The witnesses also gave their full support to the statements made during the pre - trial investigation . A telegram from another witness arrived on DATE . This witness refused to travel to GPE , citing poor health . ORG did not receive any information pertaining to the remaining witnesses .","On DATE ORG held a trial hearing .","The prosecution requested ORG to read out statements made by the prosecution witnesses and the applicant \u2019s associate , PERSON , to the NORP authorities , arguing that it was impossible to obtain their attendance . CARDINAL witnesses failed to appear for various personal reasons and the remaining witnesses lived in GPE . The applicant and his counsel objected , relying on the defendant \u2019s right to cross - examine witnesses testifying against him . The applicant noted that during the pre - trial investigation he had repeatedly asked the investigating authorities to hold confrontation interviews with the witnesses . However , his requests had been dismissed without any explanation .","ORG agreed to read out statements by the CARDINAL prosecution witnesses who had failed to appear for personal reasons , finding those reasons to be valid . As regards statements by the remaining witnesses and PERSON , ORG held as follows :","\u201c During DATE the court has taken all lawful steps to ensure the witnesses\u2019 presence , and certain witnesses have sent in information which confirmed that they had been summoned properly . Due to the fact that other witnesses live in another ORG , and taking into account that they confirmed their statements in a court hearing in ORG [ during the trial against Mr A. ] , [ the court ] considers that the present extraordinary circumstances preclude their attendance [ and ] decides to read out the statements of the ... witnesses who failed to appear . \u201d","ORG read out statements by the remaining CARDINAL prosecution witnesses and by PERSON It also announced the results of photo - identification parades conducted by the NORP investigating authorities during which the witnesses had identified the applicant and PERSON","A copy of the court hearing records presented to the ORG by the parties show that in addition to the ORG depositions ORG studied the records of the crime scene examinations of CARDINAL and DATE , an autopsy report , a document confirming the victim \u2019s identity , a search report , a warrant for the applicant \u2019s arrest and records of pre - trial confrontation interviews between PERSON and the witnesses whose statements had been read out by ORG . The ORG further heard the applicant and his parents , who denied the applicant \u2019s involvement in the robbery and murder and insisted that at the time of the crime he was staying with his family in GPE .","At the same hearing the applicant accused the prosecution of jury tampering and sought the discharge of the entire panel . He claimed that juror no . CARDINAL had tapped the prosecutor on the hand and the prosecutor had responded with a nod of the head . Defence counsel supported the accusation claiming that he had witnessed the incident . The prosecutor denied the incident , stating that he was not acquainted with juror no . CARDINAL . Juror no . CARDINAL , in response to questions from the presiding judge , stated that he had not known the prosecutor before the trial and that he had never had a conversation with him . The presiding judge , without giving any reasons , dismissed the applicant \u2019s challenge to the empanelled jury .","NORP The parties\u2019 closing arguments followed . The defence argued that there was no material evidence , such as fingerprints , bloodstains and so on , linking the applicant to the criminal offences , and that the applicant had been denied an important right to cross - examine witnesses against him .","On DATE the jury , by CARDINAL votes , found the applicant guilty of aggravated murder and robbery .","On DATE ORG accepted the verdict and sentenced the applicant to DATE imprisonment .","The applicant and his lawyer appealed , arguing that the jury had not been fair and impartial because certain jurors had been victims of criminal offences and the prosecution had tried to exert improper influence on CARDINAL of the jurors . They further alleged a violation of the applicant \u2019s rights , having regard to the fact that at no stage of the proceedings had either he or his lawyer been offered the opportunity to question the prosecution witnesses .","On DATE ORG of GPE upheld the conviction , finding that the investigating authorities and ORG had not committed any serious violations of the criminal procedural law .","LAW provides that an officer of a court or a judge \u2019s assistant has to compile a list of jury candidates for the trial . The candidates are to be drawn at random from the district or regional list of jurors . The candidates\u2019 names are entered in the list in the order in which their lots were drawn . The list of jury candidates is then served on the parties . The parties have the right to make an unlimited number of challenges for cause and CARDINAL peremptory challenges to potential jurors . The presiding judge decides on the challenges . After deleting the names of the successfully challenged candidates , the court secretary or the judge \u2019s assistant makes up the list of the remaining jury candidates , whose names are to appear in the same order as in the first list . The CARDINAL candidates whose names appear first on the list form the jury , and the CARDINAL candidates whose names appear next become substitutes . Before the jury is sworn in , the parties may challenge the entire panel if they argue that due to particular features of a criminal case the panel will be unable to render an objective verdict . The presiding judge is to decide on any such challenge to the empanelled jury ( Articles CARDINAL ) .","ORG Earlier statements made by a victim or witness may be read out if the parties give their consent to it and if ( CARDINAL ) there are substantial discrepancies between the earlier statement and the later statement before the court or ( CARDINAL ) the victim or the witness has not appeared before the court ( Article CARDINAL \u00a7 CARDINAL ) .","The court may , without seeking the consent of the parties , read out earlier statements by the defaulted a victim or witness in case of ( CARDINAL ) death , ( CARDINAL ) serious illness , ( CARDINAL ) the refusal to appear by a victim or the witness who is a citizen of another GPE or ( CARDINAL ) natural disaster or other force majeure circumstances ( LAW ) .","Chapter CARDINAL of the Code determines steps to be taken when asking foreign authorities for legal assistance . In particular , Article CARDINAL provides that a prosecutor , an investigator or a court , when they need to carry out an interrogation , a search , seizure or any other procedural action in the territory of a foreign ORG , may ask assistance from investigating or judicial officials of that ORG to organise \/ perform that procedural action . Records of procedural actions performed by foreign officials on a request by NORP authorities will have the same evidentiary weight as evidence received by NORP officials in the territory of GPE ( Article CARDINAL ) . Article CARDINAL deals with the issue of summoning witnesses who live outside GPE to give statements regarding a criminal case pending before NORP authorities .","ORG ( signed in GPE on DATE and amended on DATE , \u201c the DATE Minsk Convention \u201d ) , to which both GPE and GPE are parties , provides that a witness and a victim who are subjects of CARDINAL ORG can be summoned , for the purpose of their examination , by a \u201c body of justice \u201d of ORG . The witness and the victim are entitled to reimbursement of travel , and certain other , costs and expenses incurred in connection with their participation in the criminal proceedings ( Section CARDINAL ) .","If a witness or a victim does not obey a summons to appear without a valid reason , they may be brought to a courtroom under escort ( Article CARDINAL ) .","Witnesses and victims are entitled to reimbursement of costs and expenses incurred in connection with their participation in criminal proceedings ( Article CARDINAL ) .","Witnesses and victims who live abroad may be summoned , with their consent , to criminal proceedings conducted in GPE ( Article CARDINAL \u00a7 CARDINAL ) .","Article CARDINAL of LAW , setting out the procedure for reopening of criminal cases , reads , in so far as relevant , as follows :","\u201c CARDINAL . ORG judgments and decisions which became final should be quashed and proceedings in a criminal case should be re - opened due to new or newly discovered circumstances .","...","New circumstances are :","...","( CARDINAL ) a violation of a provision of LAW committed by a court of GPE during examination of a criminal case and established by ORG , pertaining to :","( a ) application of a federal law which runs contrary to provisions of LAW ;","( b ) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms ;","( c ) other new circumstances . \u201d"],"violated_articles":["38","6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-d"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94391","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2009,"docname":"LIS v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Mihai Poalelungi;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr A. Pie\u015bcik , a lawyer practising in PERSON . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was allocated a flat in DATE in a building owned by ORG in GPE . In DATE the applicant started experiencing problems with the ventilation system . He complained to the housing cooperative about this and the presence of carbon monoxide in the flat . On DATE he sued the cooperative , inter alia , for an order that it repair the ventilation in the flat and for compensation .","On DATE ORG ordered the housing cooperative to repair the ventilation system in the applicant \u2019s flat by DATE . It further awarded the applicant compensation . It found on the basis of expert evidence that the ventilation system was malfunctioning because of a construction defect in the building . On DATE ORG dismissed an appeal by the applicant . On DATE a writ of execution was issued in respect of the judgment of DATE .","In DATE the cooperative concluded a contract with a contractor DATE concerning repairs to the ventilation duct in the applicant \u2019s building . The works were terminated on DATE .","On DATE the ventilation system was checked by a chimney sweep , who found that it now complied with the relevant norms .","On DATE the applicant made an application to ORG for an order requiring the housing cooperative to comply with the judgment of DATE .","The ventilation system again started to malfunction and so on DATE the housing cooperative concluded another contract with a construction company to repair the ventilation duct .","On DATE ORG set a time - limit until DATE for the cooperative to comply with the judgment . At the time , it found that the judgment could also be executed by the applicant in the cooperative \u2019s stead and at its expense .","On DATE the housing cooperative informed the applicant that the repair works had been completed . However , the applicant was not satisfied with the result and requested PERSON and FAC to take appropriate measures .","Subsequently , he requested an advance on the costs of the necessary works . However , in the subsequent proceedings , ORG decided on the basis of an expert opinion that the judgment of DATE could be executed only by the cooperative itself . According to an expert opinion , in order to repair the ventilation system in the applicant \u2019s flat it was necessary to have access to and carry out works in other flats in the building , which precluded the applicant carrying out the works himself . On DATE ORG set a new time - limit of DATE from the date on which its decision had become final for the housing cooperative to repair the ventilation system in the applicant \u2019s flat . The applicant appealed . On DATE ORG dismissed his appeal .","On DATE and CARDINAL DATE the ventilation system in the applicant \u2019s building was checked . No technical irregularities were noted .","On an unspecified date in DATE the housing cooperative instituted proceedings in ORG against the applicant , claiming that it had complied with the obligations imposed by the judgment of DATE . On DATE ORG imposed a fine of MONEY ( ORG ) on the president of the housing cooperative or CARDINAL days\u2019 imprisonment in default for failing to comply with the court \u2019s decision of DATE . It further ordered the cooperative to comply with the judgment of CARDINAL DATE by DATE . In the event of default , a fine of ORG CARDINAL would be imposed on the president and the deputy president of the housing cooperative . The housing cooperative appealed . It submitted that it had enforced the judgment of DATE . On CARDINAL DATE ORG dismissed the appeal .","On DATE ORG set a new time - limit of DATE from the date on which its decision had become final for the cooperative to comply with the judgment and stated that the president and deputy president would be liable to a fine of QUANTITY FAC in default . On DATE the President of ORG informed the applicant that the repair works specified in the judgment of DATE could only be performed by the cooperative . In the event of a continued failure to comply , the applicant could request the imposition of higher fines .","According to official tests carried out in DATE , the concentration of carbon monoxide in the applicant \u2019s kitchen was over the permissible limit .","Meanwhile , on DATE the housing cooperative filed a motion to stay the writ of execution on the grounds that it had complied with the obligations imposed by the judgment of CARDINAL DATE .","On DATE the ORG gave judgment in which it deprived the judgment of DATE of its enforceability in so far as it had ordered the cooperative to repair the ventilation system in the applicant \u2019s flat . It held that the judgment of DATE did not indicate the exact manner in which the ventilation system was to be repaired and that it was not possible for the system to be repaired only in the applicant \u2019s flat , as a more general solution had to be found . Works had been performed by the cooperative in DATE and DATE to restore the permeability of the ventilation system . While , according to several measurements that had been taken the level of carbon monoxide in the applicant \u2019s flat was too high , that level also depended on the proper functioning of the ventilation system and the expert opinions indicated that the applicant himself had prevented the proper functioning of the system by sealing off the access of air through the windows . ORG therefore concluded that the ventilation system in the applicant \u2019s flat had been repaired in accordance with the judgment of DATE .","The applicant appealed . On DATE ORG dismissed his appeal . It upheld the first instance judgment and referred to the expert \u2019s opinion confirming that the cooperative had complied with the judgment of DATE","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG \u2019s decisions in the cases of ORG v. GPE ( no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V ) and NORP v. GPE ( no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ) and judgment in the case of GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL-V ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76078","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF TABOR v. POLAND","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["NORP In DATE the applicant was employed at the refinery \u201c T. \u201d as director of a department . DATE the conditions of his contract of employment were changed several times . On DATE the refinery gave notice to terminate the applicant \u2019s contract .","On DATE the applicant lodged with ORG a compensation claim against the refinery , in the amount of ORG CARDINAL , for unlawful termination of his contract . He also claimed reinstatement . By a decision of DATE ORG considered that it was not competent to examine his case and transmitted it to ORG .","By a judgment of CARDINAL DATE ORG ordered the refinery to pay the applicant compensation of ORG CARDINAL for unlawful termination of the employment contract . The compensation corresponded to CARDINAL months\u2019 remuneration . The court dismissed the remaining claims .","Both parties to the proceedings appealed against the first - instance judgment . By a judgment of CARDINAL DATE ORG dismissed their appeals .","On DATE the applicant requested ORG to grant legal aid for the purpose of instituting cassation proceedings . He referred to his difficult financial situation and to the fact that he had been unemployed from DATE to DATE due to the termination of his employment contract by the defendant company . He also submitted that from DATE he had been receiving a net salary of ORG CARDINAL and submitted documents to show the period of his unemployment and his earnings . In DATE the applicant , having received no response from ORG , lodged a cassation appeal himself .","By a decision of CARDINAL DATE ORG dismissed his request for legal aid for the purpose of instituting the cassation proceedings without giving written reasons for its decision .","On DATE , ORG rejected the applicant \u2019s cassation appeal on the ground that it had not been lodged by a lawyer , as required by the law .","The applicant lodged an appeal against these decisions with ORG . He also requested the grant of retrospective leave to lodge a cassation appeal out of time . He further asked that court to appoint a lawyer for him in order to assist him in the preparation of his appeal . The applicant argued that ORG had failed to deal within the time - limit with his request for legal aid . This had forced the applicant to lodge the cassation appeal himself . The fact that the cassation appeal had been rejected , combined with the unmotivated refusal of legal aid , had made it impossible to have his interests protected and his arguments properly presented to the cassation court .","By a decision of CARDINAL DATE ORG dismissed his appeal against the decision rejecting the cassation appeal . The court observed that the applicable law clearly provided that a cassation appeal could only be lodged by a lawyer . ORG further refused to entertain the appeal in so far as it was related to the refusal of legal aid , observing that under the applicable legal provisions an appeal to ORG against an interlocutory decision of ORG was only available against a decision to reject a cassation appeal .","Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family \u2019s standard of living .","Pursuant to ORG CARDINAL of the Code , persons exempted from the court fees may request that legal aid be granted to them . The court will then request the relevant ORG or ORG to assign an advocate or a legal adviser to the claimant \u2019s case .","LAW lays down the principle of mandatory assistance of an advocate in cassation proceedings . Article CARDINAL \u00a7 CARDINAL of the Code of Civil Procedure , applicable at the relevant time , required that a cassation appeal be filed by an advocate or a legal adviser .","Under LAW a cassation appeal had to be lodged with the court that had given the relevant decision within DATE from the date on which the decision with its written grounds was served on the party concerned . Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected .","Article CARDINAL of the Code of Civil Procedure guarantees to a party to the proceedings a right to appeal against a decision of the first - instance court which terminates the proceedings . Such an interlocutory appeal ( za\u017calenie ) is also available against certain interlocutory decisions , specified in this provision . An appeal is available against a refusal of exemption from court fee and , likewise , against a refusal of legal aid , when such decisions were given by a first - instance court .","ORG held in a number of its decisions that no appeal to ORG is available against an interlocutory decision on legal aid given by a second - instance court . It observed that a decision on legal aid was expressly mentioned in a list of interlocutory decisions against which an appeal was specifically provided for under LAW , but only when they were given by the first - instance court . Furthermore , under this provision an appeal was available against decisions which terminated the proceedings in the case . However , the court noted that a refusal of legal aid could not be regarded as \u201c terminating the proceedings in the case \u201d within the meaning of this provision because this notion had to be reserved for decisions containing a certain element of assessment of the merits of a given claim . The decisions on legal aid issues did not contain such elements . As they did not fall into either of the CARDINAL principal categories listed in Article CARDINAL , the only possible conclusion was that no appeal was available against them ( II CZ CARDINAL , DATE , unpublished ; I ORG CARDINAL , DATE , OSNC DATE , No . CARDINAL , item CARDINAL ; I ORG CARDINAL , DATE , ORG No . CARDINAL , item CARDINAL ) .","Pursuant to LAW , written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision .","Pursuant to LAW , a party to the proceedings may ask for retrospective leave to appeal outside the prescribed time - limit ; the appeal shall be submitted simultaneously with the lodging of such a request ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57974","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":1996,"docname":"CASE OF GOODWIN v. THE UNITED KINGDOM","importance":2,"conclusion":"Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"C. Russo;John Freeland;N. Valticos;R. Pekkanen","text":["Mr PERSON , a NORP national , is a journalist and lives in GPE .","ORG On DATE the applicant joined the staff of The Engineer , published by ORG ( \" the publishers \" ) , as a trainee journalist . He was employed by ORG ( \" the employer \" ) .","On DATE the applicant was telephoned by a person who , according to the applicant , had previously supplied him with information on the activities of various companies . The source gave him information about ORG ( \" Tetra \" ) , to the effect that the company was in the process of raising a MONEY loan and had financial problems as a result of an expected loss of MONEY for DATE on a turnover of MONEY . The information was unsolicited and was not given in exchange for any payment . It was provided on an unattributable basis . The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document . On CARDINAL and CARDINAL DATE , intending to write an article about ORG , he telephoned the company to check the facts and seek its comments on the information .","The information derived from a draft of ORG \u2019s confidential corporate plan . On DATE there had been CARDINAL numbered copies of the most recent draft . CARDINAL had been in the possession of senior employees of ORG , one with its accountants , one with a bank and one with an outside consultant . Each had been in a ring binder and was marked \" Strictly Confidential \" . The NORP file had last been seen at TIME on DATE in a room they had been using at ORG \u2019s premises . The room had been left unattended TIME and during that period the file had disappeared .","ORG On DATE Mr Justice PERSON of ORG ) granted an application by ORG of the same date for an ex parte interim injunction restraining the publishers of The Engineer from publishing any information derived from the corporate plan . The company informed all the national newspapers and relevant journals of the injunction on DATE .","ORG In an affidavit to ORG dated DATE , ORG stated that if the plan were to be made public it could result in a complete loss of confidence in the company on the part of its actual and potential creditors , its customers and in particular its suppliers , with a risk of loss of orders and of a refusal to supply the company with goods and services . This would inevitably lead to problems with ORG \u2019s refinancing negotiations . If the company went into liquidation , there would be CARDINAL redundancies .","ORG On DATE Mr Justice PERSON , on an application by ORG , ordered the publishers , under LAW DATE ( \" the CARDINAL Act \" ; see paragraph CARDINAL below ) , to disclose by TIME on DATE the applicant \u2019s notes from the above telephone conversation identifying his source . On DATE , the publishers having failed to comply with the order , PERSON Justice PERSON granted ORG leave to join the applicant \u2019s employer and the applicant himself to the proceedings and gave the defendants until TIME on DATE to produce the notes .","On DATE ORG made a further order to the effect that the applicant represented all persons who had received the plan or information derived from it without authority and that such persons should deliver up any copies of the plan in their possession . The motion was then adjourned for the applicant to bring this order to the attention of his source . However , the applicant declined to do so .","ORG On DATE Mr Justice PERSON ordered the applicant to disclose by TIME on DATE his notes on the grounds that it was necessary \" in the interests of justice \" , within the meaning of section CARDINAL of the CARDINAL Act ( see paragraph CARDINAL below ) , for the source \u2019s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document , obtain an injunction preventing further publication or seek damages for the expenses to which it had been put . The judge concluded :","\" There is strong prima facie evidence that it has suffered aserious wrong by the theft of its confidential file . Thereis similar evidence that it would suffer serious commercialdamage from the publication of the information in the fileduring the near future . It is true that the source may notbe the person who stole the file . He may have had theinformation second hand , although this is less likely . PERSON case , however , he was trying to secure damagingpublication of information which he must have known to besensitive and confidential . According to the respondent , having given him the information he telephoned again a fewdays later to ask how the article was getting on . The plaintiff wishes to bring proceedings against the source forrecovery of the document , an injunction against furtherpublication and damages for the expense to which it has beenput . But it can not obtain any of those remedies because itdoes not know whom to sue . In the circumstance of this case , in which a remedy against the source is urgently needed , PERSON that disclosure is necessary in the interests ofjustice .","... There is no doubt on the evidence that the respondent wasan innocent recipient of the information but the ORG case shows that this does not matter . The questionis whether he had become mixed up in the wrongdoing ...","The respondent has sworn an affidavit expressing the viewthat the public interest requires publication of theplaintiff \u2019s confidential commercial information . Counsel forthe respondent says that the plaintiff \u2019s previous publishedresults showed it as a prosperous expanding company andtherefore the public was entitled to know that it was nowexperiencing difficulties . I reject this submission . Thereis nothing to suggest that the information in the draftbusiness plan falsifies anything which has been previouslymade public or that the plaintiff was under any obligation , whether in law or commercial morality , to make thatinformation available to its customers , suppliers andcompetitors . On the contrary , it seems to me that businesscould not function properly if such information could not be kept confidential . \"","ORG On DATE ORG rejected an application by the applicant for a stay of execution of ORG order , but substituted an order requiring the applicant either to disclose his notes to ORG or to deliver them to ORG in a sealed envelope with accompanying affidavit . The applicant did not comply with this order .","ORG On DATE the applicant lodged an appeal with ORG from Mr Justice PERSON \u2019s order of CARDINAL DATE . He argued that disclosure of his notes was not \" necessary in the interests of justice \" within the meaning of LAW ; the public interest in publication outweighed the interest in preserving confidentiality ; and , since he had not facilitated any breach of confidence , the disclosure order against him was invalid .","ORG dismissed the appeal on DATE . Lord PERSON held :","\" The existence of someone with access to highly confidentialinformation belonging to the plaintiffs who was prepared tobreak his obligations of confidentiality in this way was apermanent threat to the plaintiffs which could only beeliminated by discovering his identity . The injunctionswould no doubt be effective to prevent publication in thepress , but they certainly would not effectively preventpublication to the plaintiffs\u2019 customers or competitors .","...","... I am loath in a judgment given in open court to give adetailed explanation of why this is a case in which , if thefull facts were known and the courts had to say that theycould give the plaintiffs no assistance , there would , PERSON , be a significant lessening in public confidence in theadministration of justice generally . Suffice it to say thatthe plaintiffs are a , and perhaps the , leader in their veryimportant field , which I deliberately do not identify , withnational and international customers and competitors . They are faced with a situation which is in part the result oftheir own success . They have reached a point at which theyhave to refinance and expand or go under with the loss notonly of money , but of a significant number of jobs . This isnot the situation in which the court should be or be seen tobe impotent in the absence of compelling reasons . The plaintiffs are continuing with their refinancing discussionsmenaced by the source ( or the source \u2019s source ) ticking awaybeneath them like a time bomb . Prima facie they are entitledto assistance in identifying , locating and defusing it .","That I should have concluded that the disclosure of Mr PERSON \u2019s source is necessary in the interests of justiceis not determinative of this appeal . It does , however , meanthat I have to undertake a balancing exercise . On the onehand there is the general public interest in maintaining theconfidentiality of journalistic sources , which is the reasonwhy section CARDINAL was enacted . On the other is , in my judgment , a particular case in which disclosure is necessary in thegeneral interests of the administration of justice . If thesetwo factors stood alone , the case for ordering disclosurewould be made out , because the parliamentary intention mustbe that , other things being equal , the necessity fordisclosure on any of the CARDINAL grounds should prevail . ORG Were it otherwise , there would be no point in having these doorways .","But other things would not be equal if , on the particular facts of the case , there was some additional reason formaintaining the confidentiality of a journalistic source . It might , for example , have been the case that the information disclosed what , on the authorities , is quaintly called ` ORG . Or the plaintiffs might have been a publiccompany whose shareholders were unjustifiably being kept inignorance of information vital to their making a sensibledecision on whether or not to sell their shares . Such afeature would erode the public interest in maintaining theconfidentiality of the leaked information and correspondingly enhance the public interest in maintaining theconfidentiality of journalistic sources . Equally , onparticular facts such as that the identification of thesource was necessary in order to support or refute a defenceof alibi in a major criminal trial , the necessity fordisclosure ` in the interests of justice\u2019 might be enhancedand overreach the threshold of the statutory doorway requiring some vastly increased need for the protection ofthe source if it was to be counterbalanced . Once the[plaintiffs ] can get through a doorway , the balancing exercise comes into play .","On the facts of this case , nothing is to be added to eitherside of the equation . The test of the needs of justice ismet , but not in superabundance . The general public interestin maintaining the confidentiality of journalistic sourcesexists , but the facts of this particular case add absolutelynothing to it . No ` ORG has been shown . No shareholders have been kept in the dark . Indeed the publichas no legitimate interest in the business of the plaintiffswho , although corporate in form , are in truth to becategorised as private individuals . This is in reality apiece of wholly unjustified intrusion into privacy .","Accordingly , I am left in no doubt that , notwithstanding thegeneral need to protect journalistic sources , this is a casein which the balance comes down in favour of disclosure . Iwould dismiss the ORG appeals . I can see no reason injustice for doing otherwise with regard to Mr Goodwin\u2019sappeals . \"","Lord Justice PERSON stated that the applicant must have been \" amazingly na\u00efve \" if it had not occurred to him that the source had been at the very least guilty of breach of confidence .","ORG granted the applicant leave to appeal to ORG .","ORG upheld ORG decision on DATE , applying the principle expounded by Lord PERSON in ORG v. ORG and Excise Commissioners [ DATE ] Appeal Cases CARDINAL , a previous leading case :","\" if through no fault of his own a person gets mixed up in thetortious acts of others so as to facilitate their wrongdoinghe may incur no personal liability but he comes under a dutyto assist the person who has been wronged by giving him fullinformation and disclosing the identity of the wrongdoers . \"","Lord Bridge , in the first of the CARDINAL separate speeches given in the applicant \u2019s case , underlined that in applying section CARDINAL it was necessary to carry out a balancing exercise between the need to protect sources and , inter alia , the \" interests of justice \" . He referred to a number of other cases in relation to how the balancing exercise should be conducted ( in particular Secretary of ORG [ DATE ] Appeal Cases CARDINAL ) and continued :","\" ... the question whether disclosure is necessary in theinterests of justice gives rise to a more difficult problemof weighing CARDINAL public interest against another . A questionarising under this part of section CARDINAL has not previously comebefore your Lordships\u2019 ORG for decision . In discussing thesection generally Lord PERSON said in Secretary of ORG forDefence v. ORG [ DATE ] Appeal Cases CARDINAL :","` The exceptions include no reference to \" the public ORG and I would add that in my view the PERSON \" , the interests of which are entitled to protection , is not used in a general sense as the antonym of \" GPE in the technical sense of the administration of justicein the course of legal proceedings in a court of law , or , byreason of the extended definition of \" court \" in section LAW of DATE before a tribunal or body exercising thejudicial power of the state.\u2019","I agree entirely with DATE dictum . To construe ` justice\u2019 as the antonym of ` ORG insection CARDINAL would be far too wide . But to confine it to the`technical sense of the administration of justice in thecourse of legal proceedings in a court of law\u2019 seems to me , with all respect due to any dictum of the late Lord PERSON , to be too narrow . It is , in my opinion , ` in the interests of justice\u2019 , in the sense in which this phrase is used insection CARDINAL , that persons should be enabled to exerciseimportant legal rights and to protect themselves from seriouslegal wrongs whether or not resort to legal proceedings in acourt of law will be necessary to attain these objectives . Thus , to take a very obvious example , if an employer of alarge staff is suffering grave damage from the activities ofan unidentified disloyal servant , it is undoubtedly in theinterests of justice that he should be able to identify himin order to terminate his contract of employment , notwithstanding that no legal proceedings may be necessary to achieve that end .","Construing the phrase ` in the interests of justice\u2019 in thissense immediately emphasises the importance of the balancingexercise . It will not be sufficient , per se , for a partyseeking disclosure of a source protected by LAW toshow merely that he will be unable without disclosure toexercise the legal right or avert the threatened legal wrongon which he bases his claim in order to establish thenecessity of disclosure . The judge \u2019s task will always be toweigh in the scales the importance of enabling the ends ofjustice to be attained in the circumstances of the particularcase on the one hand against the importance of protecting thesource on the other hand . In this balancing exercise it isonly if the judge is satisfied that disclosure in theinterests of justice is of such preponderating importance asto override the statutory privilege against disclosure thatthe threshold of necessity will be reached .","Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than anissue calling for the exercise of the judge \u2019s discretion , but , like many other questions of fact , such as the questionof whether somebody has acted reasonably in givencircumstances , it will call for the exercise of adiscriminating and sometimes difficult value judgment . PERSON the weight to be attached to the importance ofdisclosure in pursuance of the policy which underliessection CARDINAL on the other hand , many factors will be relevanton both sides of the scale .","It would be foolish to attempt to give a comprehensive guidance as to how the balancing exercise should be carriedout . But it may not be out of place to indicate the kind offactors which will require consideration . In estimating theimportance to be given to the case in favour of disclosurethere will be a wide spectrum within which the particularcase must be located . If the party seeking disclosure shows , for example , that his very livelihood depends upon it , thiswill put the case near one end of the spectrum . If he showsno more than that what he seeks to protect is a minorinterest in property , this will put the case at or near theother end . On the other side the importance of protecting asource from disclosure in pursuance of the policy underlyingthe statute will also vary within a spectrum . CARDINAL importantfactor will be the nature of the information obtained fromthe source . The greater the legitimate interest in theinformation which the source has given to the publisher orintended publisher , the greater will be the importance ofprotecting the source . But another and perhaps moresignificant factor which will very much affect the importanceof protecting the source will be the manner in which theinformation was itself obtained by the source . If it appearsto the court that the information was obtained legitimatelythis will enhance the importance of protecting the source . Conversely , if it appears that the information was obtainedillegally , this will diminish the importance of protectingthe source unless , of course , this factor is counterbalancedby a clear public interest in publication of the information , as in the classic case where the source has acted for thepurpose of exposing iniquity . I draw attention to theseconsiderations by way of illustration only and I emphasiseonce again that they are in no way intended to be read as acode ...","In the circumstances of the instant case , I have no doubtthat [ ORG ] and ORG were right infinding that the necessity for disclosure of Mr Goodwin\u2019snotes in the interests of justice was established . Theimportance to the plaintiffs of obtaining disclosure lies inthe threat of severe damage to their business , andconsequentially to the livelihood of their employees , whichwould arise from disclosure of the information contained intheir corporate plan while their refinancing negotiations arestill continuing . This threat ... can only be defused ifthey can identify the source either as himself the thief ofthe stolen copy of the plan or as a means to lead to theidentification of the thief and thus put themselves in aposition to institute proceedings for the recovery of themissing document . The importance of protecting the source onthe other hand is much diminished by the source \u2019s complicity , at the very least , in a gross breach of confidentiality whichis not counterbalanced by any legitimate interest whichpublication of the information was calculated to serve . Disclosure in the interests of justice is , on this view ofthe balance , clearly of preponderating importance so as tooverride the policy underlying the statutory protection ofsources and the test of necessity for disclosure is satisfied ... \"","Lord PERSON added that the applicant should have \" recognised that [ the information ] was both confidential and damaging \" .","ORG In the meantime , on DATE , the applicant had been served with a motion seeking his committal for contempt of court , an offence which was punishable by an unlimited fine or up to CARDINAL years\u2019 imprisonment ( section CARDINAL of the DATE Act ) . On DATE , at a hearing in ORG , counsel for the applicant had conceded that he had been in contempt but the motion was adjourned pending the appeal .","Following the ORG of Lord \u2019s dismissal of the appeal , ORG , on DATE , fined the applicant \u00a3 CARDINAL,CARDINAL for contempt of court .","Section CARDINAL of the Contempt of Court Act DATE provides :","\" No court may require a person to disclose , nor is a personguilty of contempt of court for refusing to disclose thesource of information contained in the publication for whichhe is responsible , unless it be established to thesatisfaction of the court that disclosure is necessary in theinterests of justice or national security or for theprevention of disorder or crime . \"","Section CARDINAL reads :","\" In any case where a court has power to commit a person toprison for contempt of court and ( apart from this GPE limitation applies to the period of committal , thecommittal shall ( without prejudice to the power of the courtto order his earlier discharge ) be for a fixed term , and thatterm shall not on any occasion exceed DATE in the caseof committal by a superior court , or DATE in the case ofcommittal by an inferior court . \"","ORG In Secretary of ORG Newspapers Lord PERSON considered the expression \" interests of justice \" in section CARDINAL of the DATE Act :","\" The exceptions include no reference to the \u2018 public interest\u2019generally and I would add that in my view the expression\u2019justice\u2019 , the interests of which are entitled to protection , is not used in a general sense as the antonym of \u2018 injustice\u2019but in a technical sense of the administration of justice inthe course of legal proceedings in a court of law ... [ The expression ` interests of justice\u2019 ] ... refers to theadministration of justice in particular legal proceedingsalready in existence or , in the type of ` bill of GPE ... exemplified by ORG v. ORG ... a particular civil action whichit is proposed to bring against a wrongdoer whose identityhas not yet been ascertained . I find it difficult toenvisage a civil action in which section CARDINAL of the [ DATE ] Actwould be relevant other than one of defamation or fordetention of goods where the goods , as in the instant caseand in ORG v. ORG ... consist of or include documents that have been supplied tothe media in breach of confidence . \""],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-69630","languageisocode":"ENG","respondent":"BGR","branch":"GRANDCHAMBER","date":2005,"docname":"CASE OF NACHOVA AND OTHERS v. BULGARIA","importance":1,"conclusion":"Violation of Art. 2 (deaths);Violation of Art. 2 (failure to conduct an effective investigation);No separate issue under Art. 13;No violation of Art. 14+2 (alleged act of racial violence);Violation of Art. 14+2 (failure to investigate possible racist motives);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Luzius Wildhaber;Nicolas Bratza","text":["The case concerns the killing on DATE of PERSON and PERSON PERSON by a member of the military police who was attempting to arrest them .","All the applicants are NORP nationals of GPE origin .","Ms Anelia PERSON , who was born in DATE , is Mr PERSON 's daughter . PERSON , who was born in DATE , is PERSON mother . Both live in GPE , GPE . PERSON and Mr PERSON , who were born in DATE and DATE respectively and live in GPE , GPE , are PERSON parents .","In DATE PERSON and PERSON , who were both DATE , were conscripts in ORG ( \u0421\u0442\u0440\u043e\u0438\u0442\u0435\u043b\u043d\u0438 \u0432\u043e\u0439\u0441\u043a\u0438 ) , a division of the army dealing with the construction of apartment blocks and other civilian projects .","Early in DATE PERSON and PERSON were arrested for being repeatedly absent without leave . On DATE Mr PERSON was sentenced to DATE imprisonment and PERSON to DATE imprisonment . Both had previous convictions for theft .","On DATE they fled from a construction site outside the prison where they had been brought to work and travelled to the home of Mr PERSON 's grandmother , PERSON , in the village of PERSON . Neither man was armed .","Their absence was reported DATE and their names put on the military police 's wanted list . A warrant for their arrest was received on DATE by ORG .","At TIME on DATE , the officer on duty in ORG received an anonymous telephone message that PERSON and PERSON were hiding in the village of PERSON . On CARDINAL of the previous occasions when he had been absent without leave , it was there that Mr PERSON had been found and arrested .","The commanding officer , Colonel NORP , decided to dispatch CARDINAL military police officers , under the command of Major PERSON , to locate and arrest the CARDINAL men . CARDINAL of the officers knew CARDINAL or both of them . Major PERSON apparently knew PERSON because , according to a secretary who worked at the town hall and was heard later as a witness , his mother was from the village .","Colonel NORP told the officers that \u201c in accordance with the rules \u201d they should carry their handguns and automatic rifles and wear bullet - proof vests . He informed them that Mr PERSON and PERSON were \u201c criminally active \u201d ( \u043a\u0440\u0438\u043c\u0438\u043d\u0430\u043b\u043d\u043e \u043f\u0440\u043e\u044f\u0432\u0435\u043d\u0438 ) DATE an expression used to denote persons with previous convictions or persons suspected of an offence \u2013 and that they had escaped from detention . The officers were instructed to use whatever means were dictated by the circumstances to arrest them .","NORP The officers immediately left for PERSON in a jeep . CARDINAL officers wore uniforms while the others were in civilian clothes . Only Major PERSON wore a bullet - proof vest . He was armed with a personal handgun and a CARDINAL PERSON calibre PERSON automatic rifle . The other men carried handguns . CARDINAL PERSON automatic rifles remained in the boot of the vehicle throughout the operation .","NORP The officers were briefed orally by Major PERSON on their way to PERSON . PERSON was to cover the east side of the house , Major PERSON the west side and PERSON was to go into the house . PERSON , the driver , was to remain with the vehicle and keep watch over the north side .","At TIME the officers arrived in PERSON . They asked a secretary at the town hall and one of the villagers , Mr PERSON , to join them and show them Mr PERSON 's grandmother 's house . The vehicle drove into PERSON 's GPE district .","Sergeant N. recognised the house since he had previously arrested PERSON there for being absent without leave .","As soon as the jeep drew up in front of the house , CARDINAL and TIME , PERSON recognised PERSON , who was inside , behind the window . Having noticed the vehicle , the fugitives tried to escape . The officers heard the sound of a window pane being broken . Major PERSON and PERSON and ORG jumped out of the vehicle while it was still moving . Major PERSON and PERSON went through the garden gate , the former going to the west side of the house , and the latter entering the house . PERSON headed towards the east side of the house . PERSON remained with the car , together with the secretary who worked at the town hall and Mr PERSON","Sergeant N. later testified that , having noticed Mr PERSON and PERSON PERSON escaping through the window and running towards a neighbour 's yard , he had shouted : \u201c Stop , military police ! \u201d He had pulled out his gun , but had not fired any shots . The CARDINAL men had carried on running . PERSON had run out on to the street in an effort to intercept them by cutting past several houses . While running , he had heard Major PERSON shout : \u201c Freeze , military police , freeze [ or ] I 'll shoot ! \u201d It was then that the shooting had started .","Major PERSON stated in his testimony :","\u201c ... I heard Sergeant N. shouting : ' Freeze , police ' ... I saw the conscripts ; they were running and then stopped in front of the fence LOC and the neighbour 's yards ... I saw that they were trying to jump over the [ chain - link ] fence , so I shouted : ' Freeze , or I 'll shoot ! ' I released the safety catch and loaded the automatic gun . Then I fired a shot in the air , holding the automatic rifle upwards with my right hand , almost perpendicular to the ground ... The conscripts climbed over the [ chain - link ] fence and continued to run , I followed them , then I fired one , CARDINAL or CARDINAL more times in the air and shouted : ' Freeze ! ' , but they continued running . I again fired shots in the air with the automatic and shouted : ' Freeze , or I will shoot with live cartridges . ' I warned them again , but they continued running without turning back . I fired to the right [ of the QUANTITY men ] with the automatic after the warning , aiming at the ground , hoping that this would make them stop running . I again shouted ' Freeze ! ' when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence . I aimed at their feet . The ground where I stood was at a lower level ... [ B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them . The gradient there was a bit steep , [ I ] was standing on lower ground ... the second fence was on the highest ground , that is why when I fired the first time I aimed to the side [ of the CARDINAL men ] , as I considered that nobody from the neighbouring houses would be hurt , and the second time I aimed at the conscripts , but fired at their feet . Under LAW we can use firearms to arrest members of the military forces who have committed a publicly prosecutable offence and do not surrender after a warning , but in accordance with paragraph CARDINAL of [ that regulation ] we have to protect the lives of the persons against whom [ we use firearms ] \u2013 for that reason I fired at [ the victims ' ] feet \u2013 with the intention of avoiding fatal injury . The last time that I shot at the conscripts ' feet , I was QUANTITY away from them and they were exactly at the south - east corner of the neighbouring yard . After the shooting they both fell down ... They were both lying on their stomachs , and both gave signs of life , ... moaning ... then Sergeant S. appeared , I called him ... and handed him my automatic rifle ... \u201d","According to the statements of the CARDINAL subordinate officers , Mr PERSON and PERSON were lying on the ground in front of the fence , with their legs pointing in the direction of the house from which they had come . CARDINAL of them was lying on his back and the other on his stomach .","A neighbour , PERSON , who lived opposite PERSON grandmother , also gave evidence . At CARDINAL or TIME he had seen a military jeep pull up in front of PERSON house . Then he had heard somebody shout : \u201c Do n't run , I am using live cartridges . \u201d He had then heard shots . He had looked into the next yard and seen PERSON , whom he knew , and another man leap over the chain - link fence between PERSON and another neighbour 's yards . He had not seen the man who had shouted as he was hidden from view behind PERSON house . Then he had seen Mr PERSON and Mr PERSON fall to the ground and the man who had shot them emerge , holding an automatic rifle . Mr PERSON further stated :","\u201c The other men in uniform then started remonstrating with [ the man who had shot PERSON and PERSON ] telling him that he should not have fired , that he should not have come with them . Of those who came in the jeep , only the senior officer fired ... I know him by sight , he has relatives in PERSON . \u201d","Sergeant S. stated that on arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house : \u201c Freeze , police ! \u201d He had also heard Major PERSON shout \u201c Freeze , police ! \u201d several times from the west side of the house . Then Major PERSON had started shooting with his automatic weapon , while continuing to shout . PERSON had then entered the yard . He had seen Major PERSON leap over the chain - link fence and heard him shouting . He had gone up to him , had taken his automatic rifle and seen Mr PERSON and Mr PERSON lying on the ground next to the fence . They were still alive . At that moment PERSON had come out of the house . Major PERSON had gone to get the jeep and had reported the incident over the vehicle radio . When they returned , PERSON had appeared from the neighbouring street and helped them put the wounded men in the vehicle .","The head of ORG and other officers were informed of the incident at TIME","Sergeant K. testified that he had entered the house and had been speaking to PERSON grandmother and another woman when he heard Major PERSON shouting at Mr PERSON and PERSON to stop . In the house , he had noticed that a window pane in the room overlooking the yard had been broken . He had been on the verge of leaving the house when he heard shooting coming from behind the house . On his way to the yard he had met PERSON , who had told him that the fugitives had been wounded . Sergeant ORG had then climbed over the chain - link fence and approached the wounded men , who were still alive and moaning . He had found himself holding the automatic rifle , but could not remember how it had come into his possession . He had opened the magazine and seen no cartridges in it . There was CARDINAL cartridge left in the barrel .","Immediately after the shooting , a number of people from the vicinity gathered . PERSON and PERSON took the wounded men to ORG , while Major PERSON and PERSON remained at the scene .","Mr Angelov and PERSON died on the way to Vratsa . They were pronounced dead on arrival at the hospital .","Mr PERSON 's grandmother , PERSON , gave the following account of the events . Her grandson and PERSON had been in her house when they had noticed a jeep approaching . She had gone outside and seen CARDINAL men in uniform . They had all entered the yard . CARDINAL of them had gone round the house and started shooting with an automatic rifle for a very long time . The other CARDINAL men were also armed but had not fired any shots . She had been in the yard , pleading with the man who had been shooting to stop . However , he had walked towards the back of the house . Then she had heard shooting in the backyard . She had followed and then seen her grandson and PERSON lying in the neighbours ' yard with bullet wounds .","According to another neighbour , Mr GPE , all CARDINAL policemen were shooting . CARDINAL of them had fired shots in the air and the third officer \u2013 who had been on the west side of the house ( Major PERSON ) DATE had been aiming at someone . Mr PERSON had heard CARDINAL shots , perhaps more . Then he had seen the military policemen go to the neighbouring yard , where PERSON and PERSON had fallen . That yard belonged to PERSON and his daughter . On seeing his grandson \u2013 a young boy \u2013 standing there , PERSON PERSON had asked Major PERSON for permission to approach and to take him away . Major PERSON had pointed his gun at him in a brutal manner and had insulted him , saying : \u201c You damn NORP ! \u201d ( \u201c \u043c\u0430\u043c\u043a\u0430 \u0432\u0438 \u0446\u0438\u0433\u0430\u043d\u0441\u043a\u0430 \u201d ) .","On DATE all the officers involved made separate reports on the incident to ORG . None of them was tested for alcohol .","A criminal investigation into the deaths was opened DATE , and CARDINAL TIME a military investigator inspected the scene . In his report he described the scene , including the respective positions of PERSON house , the first chain - link fence , and the spent cartridges and bloodstains found there . He indicated that the structure of the first chain - link fence was damaged and the fence had been torn down in CARDINAL place .","A sketch map was appended to the report . It showed the yard of Ms PERSON 's house and the neighbouring yard where PERSON and PERSON PERSON had fallen . The places where spent cartridges had been found were indicated . The sketch map and the report gave only some of the measurements of the yards . The gradient and other characteristics of the terrain and the surrounding area were not described .","Nine spent cartridges were retrieved . CARDINAL cartridge was found in the street , in front of PERSON house ( apparently not far from where the jeep had stopped ) . CARDINAL cartridges were discovered in PERSON yard , behind the house , close to the first chain - link fence separating her yard from the neighbour 's yard . CARDINAL cartridges were found in the yard of the neighbour ( Mr M.M ) , close to the place where the bloodstains were found . The exact distance between those cartridges and the bloodstains was not given . A ninth cartridge was found subsequently and handed in to the military police by PERSON uncle . There is no record of where it was found .","NORP The bloodstains were a metre apart . They were marked on the sketch map as being slightly QUANTITY from the first chain - link fence . The distance between the bloodstains and the second fence that Mr PERSON and PERSON had apparently been trying to scale when they were shot was not indicated . Samples of the bloodstains were taken by the investigator .","On DATE , a pathologist carried out an autopsy .","According to autopsy report no . CARDINAL\/CARDINAL , the cause of PERSON death was \u201c a wound to the chest \u201d , the direction of the shot having been \u201c from front to back \u201d . The wound was described as follows :","\u201c There is an oval - shaped wound of QUANTITY by QUANTITY in the chest , at a distance of QUANTITY from the feet , with missing tissues , and jagged and compressed edges in the area of the left shoulder . There is an oval - shaped wound of QUANTITY in the back , to the left of the infrascapular line at a distance of QUANTITY from the feet with missing tissues , jagged and torn edges turned outwards . \u201d","As regards PERSON , the report found that the cause of death had been \u201c a gunshot wound , which [ had ] damaged a major blood vessel \u201d and that the direction of the shot had been \u201c from back to front \u201d . It was further stated :","\u201c There is a round wound on the left of the buttocks at a distance of QUANTITY from the feet ... with missing tissue , jagged walls and edges , and a diameter of QUANTITY ... There is an oval wound of QUANTITY with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [ of the abdomen ] , at a distance of QUANTITY from the feet , slightly to the left of the navel . \u201d","The report concluded that the injuries had been caused by an automatic rifle fired from a distance .","On DATE , DATE and DATE the CARDINAL military police officers , CARDINAL neighbours ( FAC and PERSON ) , the secretary who worked at the town hall , and PERSON uncle were questioned by the investigator . PERSON mother was also questioned subsequently .","On DATE Major PERSON 's automatic rifle , a cartridge that had been found in it and the CARDINAL spent cartridges found at the scene were examined by a ballistics expert from ORG . According to his report , the automatic rifle was serviceable , all CARDINAL retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable .","A report by a forensic expert dated CARDINAL DATE found an alcohol content of CARDINAL g \/ l in Mr PERSON 's blood and QUANTITY in Mr PERSON 's blood ( under NORP law it is an administrative offence to drive with a blood alcohol content of CARDINAL g \/ l ) .","On DATE a forensic examination of the bloodstains found at the scene was carried out by an expert from ORG and they were found to match the victims ' blood groups .","On DATE and on DATE another neighbour ( Mr PERSON ) and PERSON ( CARDINAL of the applicants ) were questioned . On DATE Mr PERSON 's grandmother and a neighbour , PERSON , were questioned .","DATE . On DATE the families of PERSON and PERSON were given access to the investigation file . They requested that CARDINAL more witnesses , PERSON , PERSON and PERSON be heard . Their request was granted . The witnesses were heard by the investigator on DATE and DATE . The applicants did not ask for any other evidence to be obtained .","On DATE the investigator completed the preliminary investigation and drew up a final report . He noted that PERSON and PERSON PERSON had escaped from detention while serving a prison sentence , and had thus committed an offence . Major PERSON had done everything within his power to save their lives : he had instructed them to stop and surrender and had fired warning shots . He had aimed at them only after seeing that they were continuing to run away and might escape . He had not sought to injure any vital organs . The investigator therefore concluded that Major PERSON had acted in accordance with LAW of ORG and made a recommendation to the ORG regional prosecutor 's office that the investigation should be closed as Major PERSON had not committed an offence .","On DATE the ORG military prosecutor accepted the investigator 's recommendation and closed the preliminary investigation into the deaths . He concluded that Major PERSON had proceeded in accordance with LAW of ORG . He had warned the CARDINAL men several times and fired shots in the air . He had shot them only because they had not surrendered , as there had been a danger that they might escape . He had sought to avoid inflicting fatal injuries . No one else had been hurt .","When describing the victims ' personal circumstances , including details of their family , education and previous convictions , the prosecutor stated in the order that both men originated from \u201c minority families \u201d , an expression mainly used to designate people from the GPE minority .","By an order of DATE , the prosecutor of the armed forces prosecutor 's office dismissed the applicants ' subsequent appeal on the grounds that PERSON and PERSON had provoked the shooting by trying to escape and that Major PERSON had taken the steps required by law in such situations . Therefore , the use of arms had been lawful under LAW of ORG .","On DATE the prosecutor from the investigation review department of the armed forces prosecutor 's office dismissed a further appeal on grounds similar to those that had been relied on by the other public prosecutors .","In its country reports of DATE , ORG against Racism and Intolerance ( ECRI ) has expressed concern regarding racially motivated police violence , particularly against GPE , in a number of NORP countries including GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .","NORP The report on the situation of fundamental rights in ORG and its member GPE in DATE , prepared by ORG network of independent experts in fundamental rights at the request of ORG , stated , inter alia , that police abuse against GPE and similar groups , including physical abuse and excessive use of force , had been reported in a number of ORG member GPE , such as GPE , GPE , GPE , GPE , GPE and GPE .","In its second report on GPE , published in DATE , ORG stated , inter alia :","\u201c Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma \/ Gypsy community . ... [ T]he ORG documents in its DATE Report for DATE numerous ... cases of police misconduct towards ... GPE ... It cites as the most common violations : use of excessive physical force during detention for the purposes of extorting evidence ; unjustified use of firearms ... and threats to the personal security of individuals who had complained against the police to the competent authorities . ... ORG notes ... that the majority of complaints filed by this non - governmental organisation on behalf of GPE victims of police violence have not been followed up by the authorities . ... [ V]ictims seem unwilling to come forward with complaints , particularly when they are awaiting court sentences ... [ There is apparently also ] some unwillingness on the part of the authorities to admit that problems of police misconduct do exist . ...","ECRI [ reiterates its recommendation ] that an independent body be set up \u2013 acting at central and local level \u2013 to investigate police , investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished . ...","ORG is concerned at the persistence of widespread discrimination against members of the ORG community in GPE . ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards ORG communities , often with the silent collusion of local police . \u201d","In its third report on GPE , published in DATE , ORG stated , inter alia :","\u201c [ Since ORG 's second report , ] there have been no changes in LAW [ to ensure that criminal law provisions fully allow any racist motivation to be taken into account ] . ... PERSON recommends that the NORP authorities insert a provision in LAW expressly stating that racist motivation for any ordinary offence LAW an aggravating circumstance . ...","ORG is concerned about allegations of instances of excessive use of firearms by the police , which have sometimes led to the death of GPE . ... ORG strongly recommends that the NORP authorities take steps to restrict the use of firearms by the law enforcement agencies to cases where their use is really necessary . In particular , it urges the NORP authorities to amend the law to this end and ensure that international standards are conformed to in practice in this field .","ORG is particularly concerned about the findings ... that the proportion of people of GPE origin who state that they have been subjected to physical violence in police stations is CARDINAL times higher than the proportion of people of NORP origin . ... So far , the NORP authorities have not set up an independent body to investigate illtreatment or acts of discrimination committed by members of the police force . ...","ORG is pleased to learn that a specialised human rights committee was set up in ORG in DATE ... Numerous schemes have been launched to provide human rights training for police officers ...","...","ORG is unanimously considered , including by GPE representatives , to be well structured and fairly comprehensive ... There is , however , a unanimous feeling within the GPE community and among non - governmental organisations , that , apart from the few initiatives mentioned in this report , the programme has remained a dead letter ... The view in DATE is that the government lacks the political resolve to carry through such a programme ... ORG is very concerned to learn that , DATE after the adoption of ORG , its implementation is still in its early stages . ... \u201d","ORG - governmental organisations , such as ORG and ORG have reported in DATE numerous incidents of alleged racial violence against GPE in GPE , including by law enforcement agents .","Section CARDINAL of LAW ) , as in force at the relevant time , provided as follows :","\u201c ( CARDINAL ) Military police officers may use firearms ... under the following circumstances :","...","NORP to arrest a person serving in the army who has committed or is about to commit a publicly prosecutable offence and who does not surrender after being warned ...","( CARDINAL ) The use of force shall be preceded by an oral warning and a shot fired in the air ...","( CARDINAL ) When using firearms military police officers shall be under a duty , as far as possible , to protect the life of the person against whom they use force and to assist the wounded ...","...","( CARDINAL ) Whenever firearms have been used , a report shall be prepared describing the circumstances which occasioned their use ; [ the report ] shall be transmitted to the superiors of the officer concerned . \u201d","In DATE Regulation CARDINAL was superseded by Decree no . CARDINAL of DATE on the use of force and firearms by military police ( published in ORG no . CARDINAL and amended in DATE ) . According to LAW , firearms may be used , inter alia , for the arrest of any person who has committed an offence of the category of publicly prosecuted offences . The vast majority of offences under LAW fall within that category , including , for example , petty theft . According to ORG , CARDINAL \u00a7 CARDINAL and CARDINAL of the decree , the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration .","Article CARDINAL of the Criminal Code regulates the degree of force that may be used in self - defence . It requires essentially that any action in selfdefence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances . The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party . Until DATE there were no other provisions regulating this issue . However , the courts appear to have applied LAW in certain cases concerning the use of force to effect an arrest .","To fill that vacuum , in its ORG no . CARDINAL issued in DATE , ORG proclaimed , without further clarification , that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary ( DATE ) .","In its Decision no . CARDINAL of DATE , ORG , while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts , considered that the principles to be applied were those that had been identified by legal commentators . In particular , inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence , there were no other means to effect the arrest and the harm caused was proportionate to the seriousness of the offence . ORG also stated :","\u201c ... [ Causing harm to an offender in order to effect an arrest ] is an act of last resort . If the offender does not attempt to escape or ... does attempt to escape , but to a known hiding place , causing harm will not be justified ...","The harm caused must be proportionate to the seriousness ... of the offence . If the offender has committed an offence representing insignificant danger to the public , his life and health can not be put at risk . Putting his life or health at risk may be justified , however , where a person is in hiding after committing a serious offence ( such as murder , rape or robbery ) .","The means used to effect the arrest ( and the harm caused ) must be reasonable in the circumstances . This is the most important condition for lawfulness ...","Where the harm caused exceeds what was necessary ... , that is to say , where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest , ... the person inflicting it will be liable to prosecution ... \u201d","In DATE ORG decided to fill the legislative vacuum by adding a new LAW to LAW . It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful . The force used will not be considered \u201c necessary \u201d where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary . Few judgments interpreting LAW have been reported .","Article CARDINAL provides that proceedings concerning publicly prosecutable offences may only be initiated by a prosecutor or an investigator acting on a complaint or ex officio . Under Article CARDINAL \u00a7 CARDINAL , as worded until DATE , the victim had a right of appeal to a higher - ranking prosecutor against a decision not to proceed with pending criminal proceedings . The victim had no other means of challenging a refusal to prosecute .","When military courts have jurisdiction to hear a case , as for example when it concerns military police officers , the responsibility for conducting the investigation and prosecution lies with the military investigators and prosecutors , whose decisions are open to appeal before ORG .","DATE . Article CARDINAL entitles victims of crime to join the criminal proceedings , and in that connection to claim damages , to inspect the case file and take copies of relevant documents . They may also adduce evidence , raise objections , make applications and appeal against decisions of the investigating and prosecuting authorities .","The Protection against Discrimination Act was passed in DATE and came into force on DATE . It is a comprehensive piece of legislation designed to create machinery to provide effective protection against unlawful discrimination . It applies mainly in the spheres of labour relations , ORG administration and the provision of services .","Section CARDINAL provides for a shifting burden of proof in discrimination cases . Under that section , where the claimant has proved facts from which an inference that there has been discriminatory treatment might be drawn , it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment . The LAW also provides for the creation of ORG with jurisdiction , inter alia , to hear individual complaints .","The United Nations Basic Principles on ORG were adopted on DATE by ORG on ORG and the Treatment of Offenders .","Paragraph CARDINAL provides :","\u201c Law enforcement officials shall not use firearms against persons except in self - defence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life . \u201d","According to other provisions of the Principles , law enforcement officials shall \u201c act in proportion to the seriousness of the offence and the legitimate objective to be achieved \u201d ( paragraph CARDINAL ) . Also , \u201c Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law \u201d ( paragraph CARDINAL ) . National rules and regulations on the use of firearms should \u201c ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm \u201d .","Paragraph CARDINAL of the Principles states that victims or their family should have access to an independent process , \u201c including a judicial process \u201d . Further , paragraph CARDINAL provides :","\u201c Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know , or should have known , that law enforcement officials under their command are resorting , or have resorted , to the unlawful use of force and firearms , and they did not take all measures in their power to prevent , suppress or report such use . \u201d","ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG in Resolution CARDINAL\/CARDINAL , provide , inter alia , that there shall be a thorough , prompt and impartial investigation of all suspected cases of extra - legal , arbitrary and summary executions and that the investigation should aim at , inter alia , determining \u201c any pattern or practice which may have brought about \u201d the death .","Paragraph CARDINAL states :","\u201c In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles . \u201d","Paragraph CARDINAL states :","\u201c A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ... \u201d","DATE . The relevant parts of LAW of all forms of ORG , ratified by GPE in DATE , in force since DATE and published in ORG in DATE , provide :","\u201c GPE Parties ... undertake to adopt immediate and positive measures designed to eradicate all incitement to , or acts of , [ racial ] discrimination and , to this end ...","( a ) Shall declare an offence punishable by law ... all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... \u201d","In its views of DATE in Communication no . CARDINAL , PERSON the GPE , which concerned racist threats uttered by private individuals against Mr PERSON and the inadequate reaction by the authorities to the victim 's complaint , ORG stated , inter alia , that it was incumbent on the ORG to investigate with due diligence and expedition cases of incitement to racist discrimination and violence .","The relevant part of LAW , in force in GPE since DATE , provides :","\u201c The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination , hostility or violence as a result of their ethnic , cultural , linguistic or religious identity . \u201d","In its decision of DATE , ORG ( \u201c the CAT \u201d ) , examining Complaint no . CARDINAL\/CARDINAL submitted by PERSON and others against GPE , found that a mob action by non - GPE residents of GPE , GPE , who destroyed a GPE settlement on DATE in the presence of police officers , was \u201c committed with a significant level of racial motivation \u201d . That fact aggravated the violation of LAW of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment found in the case . In assessing the evidence , the ORG noted that it had not received a written explanation from ORG concerned and decided to rely on \u201c the detailed submissions made by the complainants \u201d .","ORG Directive CARDINAL\/CARDINAL\/EC of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and ORG DATE establishing a general framework for equal treatment in employment and occupation , provide , in LAW respectively :","\u201c CARDINAL . Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment .","Paragraph CARDINAL shall not prevent Member GPE from introducing rules of evidence which are more favourable to plaintiffs .","Paragraph CARDINAL shall not apply to criminal procedures .","...","Member GPE need not apply paragraph CARDINAL to proceedings in which it is for the court or competent body to investigate the facts of the case . \u201d","In DATE ORG published a Proposal for a Council Framework Decision on Combating Racism and Xenophobia , Article CARDINAL of which includes , among measures to be implemented by member GPE in that area , action to ensure that in criminal law racial motivation is taken into consideration as an aggravating circumstance .","In DATE ORG on Racism and Xenophobia published a comparative overview of racist violence and responses to it in CARDINAL of the member GPE of ORG . It noted , inter alia , that traditionally the criminal law in most of the jurisdictions surveyed did not specifically refer to \u201c racist violence \u201d , the focus not being on the motivation behind acts of violence . However , that tradition was slowly changing as laws began to recognise that crime could be \u201c racially motivated \u201d . In particular , racist motivation was increasingly being considered as an aggravating factor for sentencing purposes under the legislation of some member GPE . The relevant legislation in the following countries specifically provided for that possibility : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . In particular , LAW of LAW , which was introduced in DATE , provides in its second paragraph for an \u201c objective \u201d definition of racism as an aggravating circumstance leading to an increase in sentence :","\u201c The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim 's actual or supposed membership or non - membership of a particular ethnic group , nation , race or religion .","The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded , accompanied or followed by written or spoken comments , images , objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non - membership of a particular ethnic group , nation , race or religion . \u201d"],"violated_articles":["14","2"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","2"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-4870","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":1999,"docname":"WILHELM v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The first applicant is a NORP national , born in DATE and living in GPE . He is a lawyer by profession . He also brings the application on behalf of his daughter , born in wedlock in DATE .","A.","In DATE the applicant and his wife PERSON separated . The ensuing divorce proceedings before the GPE am ORG ( ORG ) , sitting in family matters ( PERSON ) , concerned inter alia the question of custody over the spouses\u2019 children PERSON and PERSON , born in wedlock in DATE , and involved the taking of psychological expert evidence . ORG was granted on DATE . Moreover , upon the spouses\u2019 common proposal , custody of the daughter PERSON was awarded to the applicant , and custody of PERSON was awarded to PERSON","Subsequently , PERSON remarried . The applicant married again in DATE and his son PERSON was born in DATE .","In DATE PERSON applied to ORG to be awarded custody of PERSON . She submitted that PERSON did no longer wish to live with the applicant . The applicant contested these submissions . It appears that he also requested that he be awarded custody of PERSON ; these proceedings were conducted separately .","On DATE ORG , having twice heard PERSON , issued an interim injunction provisionally transferring the right to determine PERSON \u2019s place of residence ( GPE ) to PERSON has been living with PERSON since . On DATE the applicant withdrew his appeal following a hearing before ORG ( Oberlandesgericht ) which had also questioned the child .","On DATE the ORG amended the decision of DATE and awarded the custody of PERSON to PERSON","ORG , referring to section CARDINAL of LAW ( B\u00fcrgerliches Gesetzbuch ) and the case - law of ORG ( ORG ) , observed that decisions on custody should only be changed , if there were valid reasons seriously affecting the child . Having heard the parents and in particular PERSON , the court found that the child did no longer wish to live with the applicant , but with PERSON It considered that PERSON \u2019s wish had to be respected . She had unequivocally expressed her wish in court on DATE and DATE . As stated in the opinion submitted by the competent youth office , she had made the same statement when heard at the youth office . In the court \u2019s view , the argument that this wish had been influenced by third persons was not valid . In particular , she had decided to live with her mother although she could expect the difficulties of being involved in court proceedings . Her statements in court had appeared true and genuine , and she had upheld her position over a lengthy period during which she had regularly access to the applicant , including holidays .","On DATE ORG dismissed the applicant \u2019s appeal .","ORG , having heard the applicant and PERSON , PERSON and an employee of the competent youth office , found that the custody decision had to be changed in the interest of the child . In this respect , it noted that , upon divorce , custody of PERSON had been awarded to the applicant in accordance with the spouses\u2019 common proposal . Following the preliminary injunction issued by ORG in DATE , after having heard PERSON twice , she had been living with PERSON In this period , PERSON had changed from primary to secondary school without problems . The competent youth offices had confirmed that both parents were capable of educating children . PERSON was meanwhile living together with her brother PERSON . Given the bonds between brother and sister , as confirmed at the hearing , it was also in PERSON \u2019s interest that they grew up together . Moreover , at least in the meantime , a closer relationship had developed between PERSON and PERSON repeated questioning had shown that she felt safer with her mother and had more personal care and definitively wished to live with PERSON There was no indication that PERSON \u2019s statements had been caused by PERSON and did not reflect PERSON \u2019s own wish . Although PERSON had not yet completed the age of CARDINAL and had no formal right of veto , the statement of her will had to be respected as act of self - determination . In these circumstances , ORG regarded as decisive that PERSON \u2019s future well - being and development would suffer , if her firm wish to live with PERSON was broken and she be forced to return to the applicant . Awarding custody to PERSON was , therefore , in the interest of PERSON \u2019s well - being .","Furthermore , as regards the applicant \u2019s subsidiary request for joint custody , ORG , referring to the case - law of ORG ( ORG ) , observed in particular that joint custody presupposed both GPE willingness to share the responsibility for the child after divorce . However , PERSON had refused joint custody , arguing that the applicant was not ready for cooperation and would impose his will . ORG considered that a parent refusing joint custody was in a position to exclude the other parent from custody . However , such a refusal was not necessarily abusive and therefore irrelevant . Rather , the child \u2019s interests were of paramount importance . In the absence of any willingness to cooperate in the child \u2019s education , joint custody could not be regarded as being in the interest of the child \u2019s well - being .","On DATE ORG refused to entertain the applicant \u2019s constitutional appeal .","B. Relevant domestic law and practice","Section CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW , as in force at the relevant time , provided that , in case of the GPE divorce , the competent court decided on which parent should have custody of a common child , and took the decision which was in the interest of child \u2019s well - being ; the child \u2019s bonds , especially to its brothers and sisters , were to be considered . A common proposal by the parents was only to be disregarded if necessary in the interest of the child .","In a decision of CARDINAL DATE , ORG declared unconstitutional paragraph CARDINAL , first sentence , of Section DATE , according to which custody had to be awarded to CARDINAL of the parents in case of divorce . ORG considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect , showing their willingness to share the responsibility for their child after their divorce .","According to section CARDINAL of LAW , as in force at the relevant time , the competent courts may change their decisions relating to custody matters at any time , if necessary in the interest of the child ( i m Interesse des Kindes ) .","The relevant legislation has been amended on the basis of the Government PERSON of DATE on the reform of the law on family matters . This reform of DATE , which has entered into force on DATE , harmonises the rules regarding children born in wedlock and children born out of wedlock . Section CARDINAL of LAW , as amended , provides that , in case of a definite separation of parents who jointly exercise custody , each parent can request for a sole exercise of custody . The competent court will grant the request if ( CARDINAL ) the other parent agrees , unless the child having completed the age of DATE disagrees , or if ( CARDINAL ) the termination of joint custody and award to the CARDINAL parent most likely serves best the child \u2019s well - being . According to section DATE , as amended , the competent courts shall change their decisions if there are valid reasons seriously affecting the child ( triftige , das Wohl des Kindes nachhaltig ber\u00fchrende LOC ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4904","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":1999,"docname":"WEBORA v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , born in DATE , is an NORP national residing in GPE . In the proceedings before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .","A.","On DATE officers of ORG ) searched the applicant \u2019s home on the suspicion that he owned and distributed pornographic material involving minors . They informed the applicant that the investigating judge had issued a search warrant orally . A written copy of the search warrant was not served on the applicant until DATE .","On DATE the applicant lodged a complaint with ORG ( Unabh\u00e4ngiger Verwaltungssenat ) . He submitted that it was not clear in the circumstances whether a search warrant had been issued as claimed by the police officers . Thus , the search of his LOC lacked a legal basis and violated his right to respect for his home .","On DATE ORG rejected the applicant \u2019s complaint as being inadmissible . It found that the police had acted upon an oral search warrant from the investigating judge and the search of the applicant \u2019s premises was , thus , attributable to the court . Consequently , the review of its lawfulness did not fall within the competence of ORG .","On DATE the applicant lodged a complaint with ORG ( Ratskammer ) of ORG ( PERSON f\u00fcr PERSON ) , claiming that the search of his LOC violated his right to respect for his home . He submitted in particular that no written copy of the search warrant had been served on him within the statutory TIME time - limit .","On DATE ORG of ORG dismissed the applicant \u2019s complaint as being unfounded . It noted that the court had conducted criminal proceedings against a number of persons on suspicion of sexual abuse of minors . In the course of these proceedings a letter was seized which proved that a certain PERSON dealt with pornographic material involving minors . Subsequently , since the applicant was identified as the person using the cover name PERSON , the investigating judge issued a search warrant for the applicant \u2019s LOC . At the time , a written copy of the search warrant was not issued and , thus , was not served on the applicant . ORG further noted that the search was carried out in the presence of the applicant who was first informed of the suspicion and was requested to hand over any pornographic material in his possession . As he refused to do so , the search was carried out and extensive pornographic material as well as business correspondence was seized .","Having regard to its above findings , ORG concluded that there was a reasonable suspicion , as required by S. CARDINAL of LAW ( Strafprozessordnung ) , that objects which were of importance for specific criminal proceedings were to be found on the applicant \u2019s LOC . Moreover , the search had , in accordance with CARDINAL of the said Code , been ordered by a judicial search warrant . The failure to serve a written copy of the search warrant on the applicant , though contrary to the law , did not affect the lawfulness of the search itself .","On DATE this decision was served on the applicant \u2019s counsel .","PERSON Relevant domestic law","DATE Protection of the Home Act ( Gesetz zum Schutz des Hausrechts DATE )","PERSON of the CARDINAL LAW provides that a search of LOC may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge . The search warrant has to be served on the person concerned either immediately or within TIME .","Code of Criminal Procedure ( Strafprozessordnung )","S. CARDINAL \u00a7 CARDINAL of LAW provides that a search of LOC may only be carried out if there is a reasonable suspicion that a person suspected of having committed a criminal offence is hiding in the LOC concerned , or that there are objects the possession or examination of which is relevant for a particular criminal investigation .","According to S. CARDINAL \u00a7 CARDINAL a search may , as a rule , only be carried out after the person concerned has been questioned , and if the objects sought are not voluntarily handed over .","S. CARDINAL \u00a7 CARDINAL states that a search may , as a rule , only be carried out on the basis of a reasoned search warrant issued by a judge . The search warrant has to be served on the person concerned either immediately or within TIME ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23749","languageisocode":"ENG","respondent":"AZE","branch":"ADMISSIBILITY","date":2004,"docname":"MUTALIBOV v. AZERBAIJAN","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","The applicant was the first president of GPE since it gained independence in DATE . He was elected by popular vote on DATE and remained in office until DATE . Thereafter , the applicant left GPE and settled in GPE .","At present , a criminal case is pending against the applicant before the NORP authorities . The government of GPE had asked the relevant NORP authorities to extradite the applicant to GPE , but this request was rejected . The applicant remains active in NORP politics and is a co - chairman of ORG of GPE .","Before the presidential elections of DATE , a number of the applicant \u2019s political supporters in GPE formed a \u201c voters initiative group \u201d that decided to nominate the applicant as a presidential candidate for the upcoming elections . To this effect , on DATE they filed an application with ORG ( the \u201c Commission \u201d ) . On DATE the Commission rejected this application for failure to comply with the election laws and refused to register the applicant as a presidential candidate . No further explanations were given in the ORG \u2019s formal decision .","Thereafter , the ORG initiative group filed a suit in ORG , requesting to quash the ORG \u2019s decision as unlawful . On DATE ORG rejected this request . Upon an appeal in cassation , on DATE ORG upheld ORG decision ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-57624","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":1990,"docname":"CASE OF GRANGER v. THE UNITED KINGDOM","importance":3,"conclusion":"Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"C. Russo","text":["ORG A number of serious incidents between rival groups in GPE in the DATE culminated in a fire - raising attack on industrial premises , followed by a petrol - bomb attack on an apartment resulting in the death of CARDINAL members of the same family .","Mr PERSON , who is a NORP citizen born in DATE and resident in GPE , was interviewed by the police during their investigations ; on CARDINAL and CARDINAL DATE , in signed statements , he gave details of how the crimes had been committed and named the persons responsible , that is PERSON and CARDINAL others . This evidence was considered by the ORG to be important and was a major basis for the decision to prosecute those persons . Steps were taken to secure the applicant \u2019s safety until the trial .","ORG The trial of PERSON and the CARDINAL others on charges relating , inter alia , to the fire - raising and the murders took place before ORG of GPE in DATE . PERSON appeared as a principal witness for the ORG . However , once in the witness - box , he denied all knowledge of any matters relevant to the crimes . He also denied that he had given the above - mentioned statements , claiming instead that they had been made up by the police , who had pressurised him into signing them .","ORG Shortly afterwards , the applicant was arrested and prosecuted on indictment in ORG of Justiciary for perjury . He was held in custody pending and during his trial . In summary , the charges against him were that , while giving evidence at the PERSON trial , he had untruthfully :","( a ) stated that marks on a plan which he had drawn had been placed there by him on the instructions of the police rather than on his own initiative ;","( b ) denied making a detailed statement to the police on DATE about the fire - raising ;","( c ) denied making a detailed statement to the police on DATE about the murders ;","( d ) claimed to have been pressurised and assaulted by the police and forced to sign statements previously prepared by them ;","( e ) pretended that he had told his solicitor that he had been assaulted by police officers and forced to sign a statement against his will .","ORG The applicant received legal aid for the preparation of his defence by his solicitor and for representation at his trial by both senior and junior counsel .","The ORG was represented by ORG for GPE ( see paragraph CARDINAL below ) , since the gravity of the charges was considered to warrant the presence of a senior prosecutor and since the most senior Advocate Depute , who had appeared for the prosecution at the PERSON trial , was to be a witness at the applicant \u2019s trial .","After a DATE trial before ORG of GPE in DATE , PERSON was found guilty of the first , second and fourth charges against him and not guilty of the fifth ; the third was found not proven . He was sentenced to DATE imprisonment .","The trial judge certified , for the purposes of determining the fees payable under the legal - aid scheme , that the case had been CARDINAL of exceptional length , complexity and difficulty .","ORG The applicant \u2019s solicitor subsequently lodged an intimation of intention to appeal against conviction ( see paragraph CARDINAL below ) . The legal aid granted for the perjury trial covered this work , as well as the solicitor \u2019s advising on the prospects of an appeal , obtaining counsel \u2019s opinion on the same point , having counsel frame a note of appeal setting out the grounds of appeal ( ibid . ) , lodging the note of appeal and making an application for legal aid to pay for representation at the hearing of the appeal itself .","ORG Such an application was submitted on behalf of PERSON , who had insufficient means to pay for legal assistance , to ORG of the Law Society of GPE ( see paragraph CARDINAL below ) on DATE . It was accompanied by a memorandum , a copy note of appeal ( with a supplementary statement of the grounds ) and the judge \u2019s summing - up to the jury at the applicant \u2019s trial ; later a copy of the indictment and a note of previous convictions were also lodged .","The ORG considered the material before it to be insufficient and asked the applicant \u2019s solicitor to furnish counsel \u2019s opinion on the prospects of the appeal . This he did on DATE .","The solicitor had , in fact , already obtained such an opinion , on DATE , from the senior and junior counsel who had represented PERSON at his trial ; the senior counsel , in particular , had considerable experience in presenting appeals before ORG of Justiciary . The authors of the opinion concluded that they could not advise that the appeal should proceed : in their view , neither of the CARDINAL possible stateable grounds of appeal was of sufficient substance as to have reasonable prospects of success and , in any event , there was no real prospect of satisfying the court that there had been a miscarriage of justice ( see paragraph CARDINAL below ) .","The solicitor also provided the ORG with a copy of his letter of CARDINAL DATE to his GPE agents , indicating that he disagreed with counsel \u2019s opinion . Although he had obtained on DATE , for the purposes of the applicant \u2019s trial , a psychiatric report which stated that the applicant was of modest intelligence but with a poor command of LANGUAGE and poor comprehension of written material , he did not communicate this to the Committee . Neither did he refer , in any material he placed before it , to any intellectual or linguistic limitations of his client .","ORG By decision of CARDINAL DATE , which was stated to be final , the ORG refused the application , since it was not satisfied that PERSON had substantial grounds for his appeal ( see paragraph CARDINAL below ) .","ORG The applicant nevertheless continued to receive advice and assistance from his solicitor and decided to proceed with the appeal . The grounds were the same as those considered by counsel in the opinion of DATE ( see paragraph CARDINAL above ) . The applicant maintained that there had been a miscarriage of justice ( see paragraph CARDINAL below ) , in that ( in summary ) :","( a ) during the cross - examination of a police officer , the trial judge had intervened with the comment - alleged to be tantamount to a premature direction in law to the jury and incorrect - that the line being followed by the defence was incompetent and irrelevant ;","( b ) the judge had erred in admitting in evidence a statement made by the applicant on DATE , notwithstanding a defence objection that it was inadmissible as being in the nature of a precognition , that is a statement made by a potential witness at an advanced stage of an investigation outlining the evidence he is likely to give at a forthcoming trial ;","( c ) the judge had erred in repelling a further objection to the admissibility of the same statement , namely that it was evidence of crimes not charged against the applicant and would lead to prejudice ;","( d ) the judge had erred in directing the jury that it would not be unfair for a police officer - if he genuinely believed that his superiors intended to use the applicant only as a witness - to have told the applicant , prior to obtaining the aforesaid statement and certain sketch plans , that he would not be charged with any offence ;","( e ) the judge had erred in rejecting a defence submission that the evidence given by the applicant at the PERSON trial had not been \" material \" and accordingly could not form the basis of a charge of perjury .","ORG The hearing of the appeal opened before ORG of Justiciary , sitting in GPE as an appellate court of CARDINAL judges , on DATE . The ORG was again represented by ORG for GPE , accompanied by junior counsel and a member of the staff of ORG ( see paragraph CARDINAL below ) .","Since the refusal of legal aid precluded the instruction of counsel and since solicitors do not have rights of audience in the High Court of Justiciary , PERSON presented his appeal himself . He read out a statement , prepared by his solicitor , which elaborated on the written grounds of appeal . ORG replied , addressing the court for TIME .","ORG The principal point discussed at the hearing was whether the court could determine ground ( b ) of the appeal ( see paragraph CARDINAL above ) without considering a transcript of the relevant parts of the evidence given at the applicant \u2019s trial . Notwithstanding the Solicitor General \u2019s arguments to the contrary , the court decided that it could not . It therefore ordered that a transcript be prepared and adjourned the hearing to CARDINAL March CARDINAL . The applicant \u2019s solicitor subsequently assisted in the preparation of the transcript .","Following this adjournment , PERSON did not renew , or request reconsideration of , his legal - aid application , nor did he advise ORG of the court \u2019s order .","ORG At the resumed hearing the applicant had again been provided by his solicitor with a written speech , which dealt with all the grounds of appeal . Although the court pointed out that it wished to hear submissions on ground ( b ) only , it allowed the applicant , who was unable to comprehend the legal niceties , to read out the speech in full .","ORG of Justiciary unanimously refused the appeal on all grounds . In his written judgment the Lord ORG , who presided , gave full consideration to each of the grounds , but was satisfied that none of them had substance and that there had been no miscarriage of justice ( see paragraph CARDINAL below ) . He described the appellant \u2019s submissions as \" well prepared and clearly expressed \" .","Mr PERSON was released from prison on DATE after serving CARDINAL of his sentence , the remainder having been remitted .","ORG On DATE before the first hearing in the applicant \u2019s appeal - the Lord Advocate referred , under section CARDINAL of the Criminal Procedure ( GPE ) Act DATE ( see paragraphs CARDINAL below ) , for the opinion of ORG of Justiciary CARDINAL questions of law that arose from the judge \u2019s directions to the jury , at the perjury trial , concerning the charge which had been found not proven ( see paragraph CARDINAL above ) . The questions were :","( a ) whether , in a trial for perjury where the accused was not an accused in the previous trial , it is of any relevance that a statement made by him and falsely denied under oath was allegedly obtained by means described as unfair ; and","( b ) whether , in a trial for perjury , the \" materiality \" of the false evidence to the issue in the earlier trial is ( i ) a prerequisite to conviction and in any event ( ii ) a matter of fact to be left to the jury .","ORG On DATE the High Court heard submissions on the reference . PERSON exercised his statutory right to be represented at the hearing , the fees of senior counsel instructed for this purpose being paid by the Lord Advocate ( see paragraph CARDINAL below ) . In its opinion of DATE the court held that the trial judge \u2019s directions - which had been favourable to the applicant - had not been an accurate statement of the law . This opinion did not affect the applicant \u2019s acquittal ( see paragraph CARDINAL below ) .","ORG Every person convicted of a criminal charge in GPE has an automatic right of appeal - there being no requirement of prior leave - against conviction or sentence or both . In cases , such as the applicant \u2019s , tried on indictment , the right is conferred by section CARDINAL of the Criminal Procedure ( GPE ) Act DATE , as amended by ORG ( GPE ) Act DATE ( \" LAW \" ) .","ORG In an appeal against conviction , the appellant may bring under review any alleged miscarriage of justice in the earlier proceedings . \" Miscarriage of justice \" is not defined by statute , but covers such matters as misdirections by the trial judge to the jury or wrong decisions on the admissibility of evidence , as well as breaches of natural justice .","An appellate court which holds that there has been a miscarriage of justice retains a discretion not to allow the appeal if it determines that the miscarriage is not such as to warrant the quashing of the conviction ( section CARDINAL of LAW ) .","ORG Anyone wishing to appeal against conviction must lodge an intimation of his intention to do so within DATE of the final determination of the proceedings against him ( section CARDINAL of LAW ) . He then has DATE in which he may file a note of appeal containing a full statement of the grounds ; he may not , in general , found any aspect of his appeal on a ground not set out therein ( section CARDINAL of the DATE Act ) .","ORG At the hearing submissions will first be made by or on behalf of the appellant ; whilst unusual , this may be done in writing ( section CARDINAL of LAW ) . Counsel for the ORG will then address the court .","Counsel for the ORG has a duty to act with complete fairness and to assist the court by providing impartial information and , if need be , argument so that the appellant \u2019s case can be evaluated in the best possible light . This is especially important where the appellant is not represented by counsel . Such cases are common , firstly because the unrestricted right of appeal ( see paragraph CARDINAL above ) results in the filing of many appeals which are without merit and , hence , do not qualify for legal aid ( see paragraph CARDINAL below ) . Secondly , and irrespective of the availability of legal aid , counsel must , according to ORG , refuse to act further in a criminal appeal if he has formed the opinion that there are no grounds which he is prepared to state to the court .","Whether the appellant is represented or not , the court will undertake a thorough examination of the appeal and will be scrupulous in examining the points which might be favourable to him .","ORG At the hearing of appeals in ORG of Justiciary the ORG will always be represented , either by the Lord Advocate or ORG ( who are ORG of the Crown ) or by one of ORG . In an appeal against conviction following a long trial , the ORG will usually be represented by the counsel who appeared for it below , on account of his familiarity with the case .","As Ministers of the ORG , ORG are liable to be called away from court at short notice to carry out other duties . They will therefore normally be accompanied by another counsel , but he will play no active part unless LAW has to leave . Counsel for the ORG will also invariably be accompanied by the member of the ORG staff who prepared the DATE \u2019s papers for the court ; his function is entirely clerical and administrative and he will not participate in the discussion of the appeal .","ORG Legal aid granted for a trial on indictment covers certain work done in contemplation of an appeal , as listed in paragraph CARDINAL above . If it is thereafter intended to proceed with the appeal , legal aid may be sought for that purpose . Its availability was , at the relevant time , governed by ORG ( GPE ) Act DATE , as amended ( \" LAW \" ) . Applications therefor were then determined by ORG of the Law Society of GPE , whose members were independent advocates and solicitors with substantial current experience of court practice .","The whole system for the administration of legal aid was reformed by ORG ( GPE ) Act DATE , which repealed and replaced LAW with effect from DATE . In particular , the former functions of ORG were transferred to another body .","ORG Section CARDINAL(CARDINAL ) of LAW provided :","\" In criminal proceedings , a person shall not be given legal aid in connection with -","( a ) ...","It would have been extremely unusual for ORG to decide that it was not reasonable to grant legal aid to a person appearing to have substantial grounds for appealing . It normally determined applications on the basis of the documents before it , which would have included the note of appeal setting out the grounds and the judge \u2019s summing - up to the jury , and in the light of the views of the counsel or solicitor who acted for the appellant at the trial .","According to LAW ( GPE ) ( Criminal Proceedings ) Scheme DATE , the ORG \u2019s decision on the merits of an application for legal aid for a criminal appeal was final .","ORG Under section CARDINAL of LAW , where a person tried on indictment is acquitted on a charge , the Lord Advocate may refer a point of law which has arisen in relation to that charge to ORG for an opinion . The person concerned may elect to appear personally or to be represented by counsel at the hearing . If he does not desire to be so represented , the court will appoint counsel to act as amicus curiae , in order to ensure that the issues are fully argued . In either case , counsel \u2019s fees will be paid by the Lord Advocate .","ORG This procedure was introduced into NORP law because previously the prosecution had , in all cases tried on indictment , no right of appeal . There was accordingly a risk that an erroneous decision by the trial judge might be treated as authoritative in later cases .","The sole purpose of a reference by the Lord Advocate is to clarify the law for the future , section CARDINALA expressly providing that the opinion of ORG \" shall not affect the acquittal \" of the person concerned . Fresh proceedings on the charge in question can not be instituted against him , even if the opinion is favourable to the prosecution ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70583","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF FEDOROV AND FEDOROVA v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6-1;No violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicants were born in DATE and DATE respectively and live in the village of GPE , GPE .","The applicants , a married couple , used to live in ORG of GPE where they worked as veterinarians . The first applicant held the position of Head Veterinarian of LOC .","On DATE criminal proceedings for fraud were instituted against the first applicant and an obligation not to leave the place of his residence without permission was imposed on him as a preventive measure . On DATE by an order of the investigator the first applicant was suspended from his employment .","In DATE criminal proceedings for fraud were instituted against the second applicant and an obligation not to leave the place of her residence without permission was imposed on her as a preventive measure .","The criminal proceedings against both applicants were joined on CARDINAL DATE . The applicants were accused of submitting false reports on business trips in order to obtain cash from the veterinary practice where the first applicant worked unlawfully .","On DATE the applicants asked for the obligation not to leave their place of residence without permission to be cancelled . It appears that the application was not considered .","NORP Over the course of DATE the criminal case was several times remitted by the courts for additional investigation : in DATE and on CARDINAL DATE , CARDINAL DATE , DATE and DATE .","In DATE the applicants ' minor son was invited to attend an interview for a place at ORG . The applicants submitted that he did not attend the interview since neither of them was allowed to accompany him in the journey to GPE . On an unspecified date the acting prosecutor of the LOC provided the second applicant with the following letter :","\u201c [ The letter ] is given to PERSON Andreyevna Fedorova ... in order to confirm that on DATE she was summoned to ORG of LOC , as a result of which she could not leave for GPE together with her son and be present at ... the interview on DATE .","[ The letter ] is to be presented to the examination panel of ORG at ORG . \u201d","The applicants ' son , having passed general entry exams , was later admitted to the University .","On DATE ORG of GPE acquitted the applicants and cancelled the obligation not to leave their place of residence without permission . On appeal , on DATE the ORG quashed the judgment and remitted the case for a fresh examination by a different composition of judges .","On DATE ORG of GPE terminated the criminal proceedings against the applicants for lack of indication that a crime had been committed . The ruling was quashed on appeal on DATE by ORG , which remitted the case for a fresh examination to ORG of GPE .","ORG convicted the first applicant of misappropriation of property held in trust and sentenced him to DATE imprisonment on DATE . He was not required to serve the sentence on account of the statutory time - bar . The second applicant was fully acquitted . The court also lifted the obligation not to leave the place of residence without permission in respect of both applicants , although it had already been cancelled by ORG of GPE on DATE .","On appeal , on DATE ORG reversed the judgment in the part relating to the conviction of the first applicant and remitted the case for a fresh examination . The court decided not to apply any measures of restraint in respect of the applicant .","The case was subsequently transmitted to ORG of GPE . On DATE the ORG of GPE convicted the first applicant of misappropriation of property held in trust and sentenced him conditionally to DATE imprisonment . The court , however , released the applicant from the punishment because of the expiry of the statutory time - limit .","On DATE ORG reversed the judgment on appeal . It held that the first instance court should not have first convicted the applicant of the offence and then released him from the punishment , but should have terminated the criminal proceedings . Accordingly , the appeal court discontinued the criminal proceedings against the applicant on account of expiry of the statutory time - limit .","\u201c When there are sufficient grounds for believing that an accused person may evade an inquiry , preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity , or in order to secure the execution of a sentence , the inquirer , investigator , prosecutor or court may apply one of the following measures of restraint in respect of the accused : a written undertaking not to leave a specified place , a personal guarantee or a guarantee by a public organisation , or taking into custody . [ ... ] \u201d","\u201c In exceptional instances , a preventive measure may be applied to a suspect who has not been charged . In such a case , charges must be brought against the suspect within DATE after a preventive measure is applied . If no charges are brought within the period specified , the preventive measure shall be cancelled . \u201d","\u201c When the need for application of a preventive measure is being considered and the type of measure chosen ... the circumstances to be taken into account shall include ... the gravity of the charges brought and the personality of the suspect or the accused , occupation , age , health , family status and other circumstances . \u201d","\u201c A preventive measure shall be applied under an order made by an inquirer , an investigator , or a prosecutor , or a reasoned decision given by a court , which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure . The person concerned shall be informed of the order or decision and at the same time the person shall be provided with explanations concerning the procedure for appealing against the preventive measure applied .","A copy of the order or the decision on the application of the preventive measure shall be immediately handed to the person concerned . \u201d","\u201c A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry , an investigator , a prosecutor , or a court . In the event of breach by the suspect or the accused of the written undertaking given by him , a stricter preventive measure may be applied about which he should be informed when the obligation is withdrawn . \u201d","\u201c A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation :","( CARDINAL ) not to leave the place of residence or of temporary stay without the permission of a person conducting an inquiry , an investigator , a prosecutor or a court ;","( CARDINAL ) to appear before a person conducting an inquiry , an investigator , a prosecutor or a court at appointed terms ;","( CARDINAL ) not to impede the criminal proceedings in any other way . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88269","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2008,"docname":"LAHR v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON Pahl , a lawyer practising in GPE .","The applicant is an electrical engineering technician and a member of ORG of GPE ( ORG , hereafter , \u201c the NORP \u201d ) . In DATE he was a local chairperson of that party . The ORG was considered right - wing extremist and populist and was under scrutiny by ORG and those of various GPE ( L\u00e4nder ) . The ORG has not been declared unconstitutional by ORG in accordance with LAW of LAW .","On DATE the applicant commenced his compulsory military service , which was to end on DATE . To serve one \u2019s compulsory military service is an obligation imposed by LAW without conferring a right to the conscript to be enlisted . A conscript receives approximately ORG CARDINAL net allowance a month . On DATE the applicant \u2019s superior notified ORG of his membership of and functions in the ORG . On DATE he was appointed as a Private First Class . The applicant performed his duties within the army conscientiously and without any disciplinary reprimand . He did not carry out any political activities within the army .","On DATE the applicant \u2019s military service was terminated with effect from CARDINAL DATE . His presence in the army was found to endanger its integrity and order within the meaning of section CARDINAL \u00a7 CARDINAL No . CARDINAL of the Compulsory Military Service Act ( PERSON ) on account of his membership of and functions in the ORG , a party considered to be right - wing extremist and populist . Moreover , the toleration of an ORG functionary within the army would harm its reputation .","On DATE the objection he filed was rejected on the ground that his membership of and functions in the ORG were in breach of a soldier \u2019s special duty of loyalty to LAW . His membership of and functions in the ORG , a party that pursued unconstitutional aims , manifested his lack of readiness to defend the free democratic order within the meaning of LAW , which posed a danger to military order .","On DATE ORG rejected a claim lodged by the applicant , finding that the order of CARDINAL DATE gave sufficient reasons to consider that his continuing military service would pose a serious danger to military order . LAW \u00a7 CARDINAL No . CARDINAL of the Compulsory Military Service Act gave the authorities no discretion where conduct posing a serious danger to military order was established . Military order within the meaning of that provision embraced the readiness to defence which was guaranteed , inter alia , by the army \u2019s bond to the constitutional order of which it was a guarantor . Relying on the DATE annual reports on the protection of LAW and the NORP State Ministry of the ORG the court established that at the relevant time the ORG aimed at DATE if need be violent \u2013 subversion of the democratic order . It referred to several statements by the party leader who pursued the political aim to \u201c install the ORG in absolute power \u201d . Moreover it referred to the speech given by a convicted neo - Nazi at the party congress , who appealed for a \u201c revolution which could not be achieved without blood and victims \u201d . The court found that the above statements by party functionaries had to be attributed to the applicant in his function as a local chairperson at the relevant time . Therefore , his further presence in the NORP army posed in itself a danger to military order even though his behaviour within the army did not give rise to any complaints . The court clarified that his dismissal did not result in the loss of his rank .","On DATE ORG rejected an appeal lodged by the applicant . It endorsed the reasons given by the lower instances and observed that the applicant \u2019s holding of functions in the ORG during his military service was in breach of a soldier \u2019s special duty of loyalty to LAW , which was manifested in section CARDINAL of LAW and was a requisite for the functioning of the army . The ORG \u2019s anti - constitutional attitude , which was expressed by the party leader , had to be attributed to the applicant , who held functions in the party and failed to dissociate himself from those statements . The court referred to ORG settled case - law that it was not contrary to LAW that the NORP army drew consequences from the applicant \u2019s membership of a party which had not been declared unconstitutional , as that provision merely protected the political activity of the party members .","On DATE the ORG refused to admit a constitutional complaint by the applicant . It found the arguments given by the lower instances sufficient to justify the termination of his military service , which was therefore in line with the German Constitution and particularly with the prohibition of discrimination .","\u201c CARDINAL . Parties which , through their aims or the conduct of their members , seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be anti - constitutional . The ORG shall determine the question of anti - constitutionality . \u201d","\u00a7 CARDINAL [ ... ] Furthermore [ military service ] shall be terminated , if [ ... ]","based on his previous conduct [ the conscript \u2019s ] continued presence in the army would pose a serious danger to military order or to the security of the troops , [ ... ]","\u201c A soldier must recognise the free democratic order within the meaning of LAW and must act at all times in such a way as to uphold it . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-24003","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2004,"docname":"BERNADOTTE v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , the late Sigvard PERSON , was a NORP national , born in DATE and was living in GPE . Following his death on DATE , his widow , PERSON , declared that she wished to pursue the application on his behalf . He is represented before the Court by PERSON , a lawyer practising in GPE . The Government are represented by PERSON of ORG , as Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was son of the late NORP King PERSON . By descent he was born a prince . On DATE the applicant , without the consent of the King , entered into marriage with a woman who was not of royal descent . For this reason , on DATE , the applicant \u2019s father , the then Crown Prince Regent PERSON , decided on the ORG \u2019s behalf :","\u201c By entering into marriage without the King \u2019s consent and with the daughter of a foreign private person , His Majesty , The Duke of Uppland , in accordance with LAW and LAW , has forfeited his own , his children \u2019s and his ORG right of succession to the throne . Moreover , he has forfeited the titles and the privileges , which until now he has enjoyed in his capacity as a hereditary prince \u201d .","The members of the Government cabinet expressed their agreement with the above decision and agreed with the ORG \u2019s decision that \u201c PERSON for the future may use the family name PERSON \u201d . It has ever since been the understanding of the NORP Kings that the applicant thereby lost his right to the title of prince and he has been treated accordingly in ORG Officials and ORG respectively .","Since DATE the applicant , in several petitions to the present King of GPE , King PERSON , requested that his hereditary prince title be reaffirmed by the King . The applicant supplied some information about exchanges from DATE between his lawyer at the time and the PERSON of the Realm ( riksmarskalken ) . This included an extract from a letter of DATE from the PERSON stating that \u201c the King had not found grounds for revising the interpretations and application of his predecessor \u2019s decision in the matter . Thus , ORG considers that it had finalised its examination of the case \u201d .","The most recent petition to the King , dated DATE , was rejected on DATE . PERSON referred to earlier exchanges in the course of which it had been stated that the King was not prepared to carry out a revision or amendment to his predecessor \u2019s decision in the matter . In so far as the King and ORG were concerned , no changes would be made in respect of applicable titles .","Under NORP law , these refusals can not form the subject of an appeal .","According to the applicant , he suffered various inconveniences as a result of the removal of his prince title and the subsequent refusals to restore his title .","At the material time ( DATE ) , LAW read as follows .","\" No prince of ORG , be he crown prince , hereditary prince or prince , may marry without the ORG knowledge and consent . In the event that this should occur , he has forfeited his hereditary right to the realm for his own part , that of his children and descendants . \"","A similar provision was contained in LAW , which provided that the same applied if a prince , with or without the knowledge and consent of the King , married a commoner ( \u201c a private man \u2019s daughter \u201d ) of NORP or foreign origin .","Following a reform in DATE , section CARDINAL was amended to require the King to hear the Government cabinet before consenting to the marriage of a prince . At the same time , the reference to a commoner of foreign origin was abolished , while that to a commoner of NORP origin was retained . According to the respondent Government , the reason was that , after the First World War , the number of ruling sovereigns and royal houses and other families of equal status had been reduced .","According to information supplied by the ORG , the main features of the domestic law pertaining to the acquisition and loss of a name remained unchanged throughout the relevant period . In DATE the legal provisions concerning names were brought together in CARDINAL statute , the DATE LAW ( namnlagen ) , later replaced by LAW . Under these rules , surnames were acquired at birth and could be lost only in limited circumstances , for example if it were established in paternity proceedings that a certain man was not the father of a person carrying his surname or where the person concerned was not entitled to acquire the surname in the first place or had acquired a surname that caused inconvenience to another person on account of a risk of confusion . The right to carry a first name that had been registered or approved could not be revoked .","Although there was no definition of the concept of name under NORP law , it was considered that designations other than names fell outside that concept , as they were not deemed to constitute means of personal identification . This was the case of terms that indicated a profession - for example teacher , lawyer or military , or occupational position - such as professor , judge or commander , and likewise indications of rank or title , such as assistant professor , district court judge or captain . Such designations were not afforded the legal protection applicable to names . There was no domestic legal provision regulating the use of the titles of prince and princess nor any legal protection of those titles ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5221","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2000,"docname":"G.H. B. v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP citizen born in DATE and living in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","","The applicant \u2019s grand - daughter , H , was born in DATE .","In DATE , H \u2019s mother ( the applicant \u2019s daughter , P ) , who lived in GPE , north - east GPE , contacted the local authorities because she was suffering from mental health problems and could not , at that time , care for H. In DATE , H was placed with foster parents in GPE on a temporary basis . In DATE , at a meeting of the local authority permanency panel attended by P , the decision was taken that , since P was still unable to care for H , a permanent placement should be found for her . In DATE , H \u2019s name was added to ORG under the category \u201c emotional abuse \u201d . In DATE , H moved to the south of GPE to live with her maternal aunt and uncle , who had applied to have H placed permanently with them . P initially opposed this plan but eventually , to avoid a care order , she agreed and , on DATE , a residence order was made in favour of P \u2019s sister . However , this arrangement broke down and in DATE H went to live with the applicant and his wife on a temporary basis . In DATE , H was placed with short - term foster parents in GPE . This was either her fifth or her seventh change of home in DATE . She had contact with the applicant and his wife DATE , and staying contact with P in GPE .","In DATE H visited P , who was getting married . DATE after the wedding , H and P had a disagreement about H \u2019s sleeping arrangements . H wanted to stay with P , but P had arranged for H to stay with a friend . In the course of this argument , P telephoned the police and social services and asked that an emergency placement be found for PERSON The following day H returned to her foster parents . P declined to have contact with H until DATE , when they had supervised contact , repeated in DATE .","The local authority commenced care proceedings and on DATE an interim care order was made . In her statement dated CARDINAL DATE , P did not oppose the local authority \u2019s plan to find a long - term permanent placement for H in the south of GPE , although she did oppose adoption . The applicant and his wife did not support the idea of a long - term placement , and initially decided to apply for H to live with them . When they were refused legal aid to apply for a residence order , they decided to apply instead for a contact order . In DATE the local authority advanced a care plan in which it was proposed , for the first time , that H be placed with PERSON and PERSON , with a view to adoption . PERSON and PERSON indicated that they would be willing to allow post - adoption contact between H and her biological family .","The case came before His Honour Judge PERSON on DATE . At the hearing , counsel informed the judge that the parties had agreed to the making of the care order and an order for specified contact in favour of the applicant and his wife . No agreement was reached in respect of contact between H and her mother , since it was not certain whether it would be possible for P to have contact with H in the area where H would be living or at the applicant and his wife \u2019s home .","However , since DATE or DATE the applicant and his wife have had no contact with H , or news as to her well - being , with the exception of what was said in court on DATE ( see below ) . The local authority applied to vary the order of DATE , since H was extremely reluctant to have contact with her mother or grandparents . There was a further hearing before Judge PERSON in DATE . He ordered that there should be no contact until further order of the court and referred the matter to ORG .","On DATE , ORG considered a number of applications by the parties . P , who was represented by counsel , applied for the discharge of the order of DATE and for a residence order in her favour or , in the alternative , a defined contact order . The applicant and his wife , acting in person , applied in support of P \u2019s application or , in the alternative , if the court were unwilling to commit H to her mother \u2019s care , for a residence order in their favour and , if H were not to live with them , for a defined contact order . The prospective adopters , PERSON and PERSON , applied to adopt H and opposed the attachment of any condition to the adoption order .","In giving judgment , the judge , who had spoken privately to H , stated :","\u201c The principle of the paramountcy of H \u2019s welfare must be applied ... . H is DATE and her wishes , which I accept have been accurately and genuinely stated by her , do deserve to be given great weight , even if they are not , of course , conclusive . She has suffered significant harm in the past and in my judgment there is a risk , indeed the virtual certainty , of a traumatically adverse effect upon her if she is moved from her present home , where she has settled so well . ...","... I am satisfied that [ H ] wants very much indeed to be adopted so as to complete the process of integration into PERSON and PERSON family . For her , an explanation that she is to remain in their care in their capacity as long - term foster parents is to stop short of cementing the bond between her and them and of providing the total security which understandably , in the light of the past history , she craves .","She has a strong conviction that her natural family does not approve of her present placement , and she is right : the [ applicant and his wife ] are vehemently opposed to it ... .","In this case an order for direct contact is not viable at all . The child is resolute in her opposition to contact and the making of an order ... . [ H ] perceives any sort of nexus between herself and her natural family at this point of time to be threatening to the stability of her placement and she even fears that in some way the provision of a report might enable the natural family to discover her location or in some other way ( as she puts it ) hassle her . ... \u201d","He therefore granted PERSON and PERSON application for an unconditional adoption order .","On DATE , after hearing the applicant and his wife in person , ORG refused P and the applicant leave to appeal against the adoption order , and on DATE ORG refused leave to appeal to ORG .","Relevant domestic law","The Children Act DATE states , in section CARDINAL ( as relevant ) :","\u201c ( CARDINAL ) When a court determines any question with respect to \u2013","( a ) the upbringing of a child ; ...","the child \u2019s welfare shall be the court \u2019s paramount consideration . ...","( CARDINAL ) In the circumstances mentioned in subsection ( CARDINAL ) , a court shall have regard in particular to \u2013","( a ) the ascertainable wishes and feelings of the child concerned ( considered in the light of his age and understanding ) ;","( b ) his physical , emotional and educational needs ;","( c ) the likely effect on him of any change in his circumstances ;","( d ) his age , sex , background and any characteristics of his which the court considers relevant ;","( e ) any harm which he has suffered or is at risk of suffering ;","( f ) how capable each of his parents , and any other person in relation to whom the court considers the question to be relevant , is of meeting his needs ;","( g ) the range of powers available under LAW in the proceedings in question .","( CARDINAL ) The circumstances are that - ...","( a ) the court is considering whether to make , vary or discharge [ a care and supervision order ] . \u201d","LAW provides , in section CARDINAL ( as relevant ) :","\u201c ( CARDINAL ) an adoption order shall not be made unless - ...","( b ) in the case of each parent or guardian of the child the court is satisfied that \u2013 ...","( ii ) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection ( CARDINAL )","( CARDINAL ) The grounds mentioned in subsection ( CARDINAL)(b)(ii ) are that the parent or guardian - ...","( b ) is withholding his consent unreasonably ... . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77747","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2006,"docname":"CASE OF GERGELY v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant brought an action in ORG seeking the annulment of a contract and the ownership of a real - estate . DATE and CARDINAL DATE the court held CARDINAL hearings and obtained the opinion of an expert .","On DATE the proceedings were interrupted on account of the death of CARDINAL of the respondents . The successors were not identified until DATE . The court informed the parties of this fact on DATE , and the proceedings resumed on DATE .","CARDINAL further hearings took place DATE and DATE .","On DATE ORG dismissed the applicant 's action .","On DATE the applicant appealed . Following repeated warnings from the appellate court , his appeal was only lodged in due and proper form on DATE .","On DATE ORG , sitting as a second - instance court , dismissed the applicant 's appeal .","On DATE ORG rejected as inadmissible the applicant 's petition for review , without an examination of the merits ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-21938","languageisocode":"ENG","respondent":"HUN","branch":"ADMISSIBILITY","date":2001,"docname":"LAKATOS v. HUNGARY","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON , is a NORP national , born in DATE and living in GPE . At present he serves a prison sentence in FAC . Before the ORG he is represented by Mr I. PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr L. GPE , Deputy ORG - Secretary , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG preferred a bill of indictment against the applicant . He was charged with having inflicted lethal injuries on his common - law wife . In these and the ensuing proceedings the applicant was assisted by a defence counsel .","On DATE ORG convicted the applicant of lethal bodily assault and sentenced him to CARDINAL half years\u2019 imprisonment . ORG relied on evidence given by numerous witnesses as well as the opinions of forensic pathologists and psychiatrists .","The applicant appealed for a mitigation , whereas the public prosecutor appealed for an aggravation of the sentence .","In its submissions to the appeal court , on DATE the Attorney ORG maintained the public prosecution \u2019s appeal and proposed that the sentence imposed on the applicant on account of the offence of lethal bodily assault be aggravated .","On DATE ORG , acting as second instance , held a hearing and , on the same occasion , dismissed the applicant \u2019s appeal . Simultaneously , it recharacterised the applicant \u2019s offence and convicted him of bodily assault and , separately , of murder , both offences committed with special cruelty . A cumulative sentence of DATE imprisonment was imposed on the applicant . In the reasoning , ORG completed the first - instance court \u2019s findings of fact with data from the victim \u2019s autopsy record and the forensic pathologist \u2019s opinion . Relying on these elements , ORG found that the atrocities committed by the applicant had in fact constituted CARDINAL separate offences which warranted the recharacterisation as well as the aggravation of the sentence .","The applicant lodged a petition for review by ORG . He claimed that the second - instance court \u2019s completion of the findings of fact in the case had been erroneous and that his first - instance conviction and sentence be restored . He argued that the recharacterisation of the offence had been unlawful , given that the public prosecution had not proposed such a departure from the first - instance judgment and he had had no opportunity to prepare his defence against the recharacterised charges .","On DATE ORG review bench held an oral hearing . Having studied the lower instances\u2019 case - files and submissions by the applicant and the prosecution it upheld the second - instance judgment . As regards the applicant \u2019s procedural arguments , the review bench pointed out that , while courts were bound by the facts as contained in the bill of indictment , this did not hold true for the legal characterisation thereof from which the courts were free to depart . As to the merits of the case , ORG noted that , in respect of one of the incriminated events , the applicant had inflicted numerous such injuries on the victim as to imply that he had had the eventual intention to murder her . It held therefore that his additional conviction of the offence of murder was lawful .","Article CARDINAL \u00a7 CARDINAL provides that proceedings before the criminal court may be initiated only upon lawful indictment . The court decides on the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment .","Article CARDINAL \u00a7 CARDINAL provides that where there is a strong suspicion , based on the available information , that a person has committed an offence , the authority must inform him of the substance of the suspicion against him and of the relevant laws .","Article CARDINAL \u00a7 CARDINAL provides that the bill of indictment must contain a brief description of the facts on account of which the defendant is being prosecuted .","Article CARDINAL \u00a7 CARDINAL requires that documents , the contents of which are regarded by the court as evidence , be read out at the hearing .","According to LAW , the second - instance court must , when passing its decision , rely on the findings of fact reached by the first - instance court , unless the first - instance judgment lacks factual support .","Article CARDINAL provides that a defendant acquitted at first instance may be convicted , or a convicted defendant \u2019s sentence increased , only if an appeal has been lodged to his detriment . An appeal is to be regarded as being to the defendant \u2019s detriment if aimed at having him convicted , or convicted of a more serious offence , or at increasing his sentence .","According to LAW ( a ) , where the proper establishment of the facts of the case can be achieved on the basis of the case - file , the second - instance court completes or rectifies the establishment of the facts and thereafter examines the first - instance judgment on this new factual basis .","According to LAW , where the first - instance court has applied the law erroneously but its judgment need not be quashed , the second - instance court amends the judgment and passes a decision in accordance with the law .","LAW provides that a final decision is subject to review if :","( a ) the defendant \u2019s acquittal or conviction , or the discontinuation of the proceedings , has taken place in breach of the provisions of substantive criminal law ; or","( b ) an unlawful punishment or measure has been imposed on the defendant as a consequence of an incorrect classification of the offence or of another breach of the rules of substantive criminal law .","According to paragraph CARDINAL , in the latter case no review may take place , if the actual punishment has been imposed within the limits provided for by the provisions corresponding to the classification which is correct in law .","According to LAW ( I ) , a petition for review in favour of the defendant may be filed , inter alios , by the defendant , the public prosecutor or the defence counsel .","Paragraph CARDINAL provides a further ground for review where certain serious breaches of procedural criminal law have affected the passing of the decision in question .","Under LAW , if a petition for review is not rejected on formal grounds , it must be sent to the Attorney ORG for comments .","Article CARDINAL \u00a7 CARDINAL grants the petitioner the right to submit comments in reply .","According to Article CARDINAL \u00a7 CARDINAL , the ORG examines , as a general rule , the petition for review at a session . The attendance of the defence counsel and the public prosecutor is required ; the defendant must be notified of the session and , if detained , must be committed thereto .","Article CARDINAL provides that , at the session , CARDINAL of the judges sitting in the case must orally present the petition , the decision challenged and relevant details of the case - file . After this introduction , the public prosecutor , the defence counsel and the defendant , inter alios , address the court .","As a result of the review , ORG may , under LAW , quash the decision reviewed and instruct the lower - instance court to resume its proceedings .","Under LAW , where the second - instance decision has been taken in breach of the provisions of substantive criminal law within the meaning of LAW , ORG may itself deliver a rectified decision , if , as a result , the defendant may be acquitted , the proceedings discontinued or a less severe punishment imposed .","Paragraph CARDINAL provides that if ORG dismisses the petition , it must uphold the decision challenged ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96216","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2009,"docname":"CASE OF LOGACHOVA v. UKRAINE","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger","text":["NORP On various dates each of the applicants received one or more final decisions awarding payments from companies ( see appendix for details ) in which the ORG holds PERCENT of the share capital , and instituted enforcement proceedings to collect the payments .","Some of the applicants disagreed with the amounts awarded to them in the above decisions . Mr NORP , for instance , appealed against the decision of DATE in his favour but it appears that he failed to comply with the procedural requirements and his appeals were rejected . He did not appeal against the decision of CARDINAL DATE .","After the decisions in the applicants ' favour had become final , insolvency or liquidation proceedings against the debtors were initiated . On that account , ORG terminated the enforcement proceedings against them and transferred the applicants ' writs of enforcement to the relevant bankruptcy trustees or liquidation commissions for further processing . At the end , some of the debtors were liquidated .","The decisions in the applicants ' favour remain unenforced .","The relevant domestic law is set out in the judgment of DATE in the case of ORG v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE ) ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-109099","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2012,"docname":"KOVALKOVS v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["NORP The applicant , Mr Gatis Kova\u013ckovs , is a NORP national who was born in DATE and lives in R\u012bga . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG convicted the applicant of attempted robbery . He was sentenced to CARDINAL years\u2019 imprisonment , suspended for DATE . On DATE the ORG established that during that DATE period the applicant had committed various infractions . For that reason it ordered the applicant to start serving his sentence pursuant to ORG judgment of DATE , effective immediately .","On DATE the applicant was transferred from the Central prison in PERSON to serve his sentence in P\u0101rlielupe prison in GPE . According to the applicant , soon after his arrival at P\u0101rlielupe prison he began to have disagreements with the administration of the prison and with his cellmates . It appears that the primary cause of conflict was the fact that almost all of the prisoners and staff at P\u0101rlielupe prison spoke NORP . According to the applicant , their knowledge of LANGUAGE \u2013 the official language of GPE and the applicant \u2019s native language DATE was limited or non - existent . The applicant made numerous requests to be transferred to a place of imprisonment where he could freely communicate in NORP . However , all his requests to that effect were rejected .","It furthermore appears that at the relevant time the applicant frequently made dismissive and disparaging oral remarks concerning the NORP minority of GPE . Similar statements were also included in the applicant \u2019s correspondence with ORG authorities and in articles which he regularly published in an extreme right - wing magazine . As a result , other inmates became hostile towards the applicant .","On DATE the applicant was transferred from P\u0101rlielupe prison to GPE prison after the governor of P\u0101rlielupe prison had written a report in which it was noted that the applicant \u201c constantly provoke[d ] conflicts with the administration of the prison by sending unsubstantiated complaints to various NORP newspapers \u201d .","On DATE the applicant was transferred to GPE prison .","On DATE the applicant was transferred to PERSON prison in PERSON ( in DATE PERSON prison merged with the adjacent Central prison ) . The report concerning the desirability of the applicant \u2019s transfer noted that \u201c all of the [ applicant \u2019s ] conflicts and disagreements in prison [ were ] caused by himself , [ he ] provoke[d ] the [ prison ] administration and incite[d ] other prisoners to write complaints \u201d . At the applicant \u2019s request , DATE after his arrival in PERSON prison he was placed in an individual cell . The applicant remained in PERSON prison until his release upon having served his sentence on CARDINAL DATE .","The applicant alleges that his cellmates and also the chaplain at P\u0101rlielupe prison ridiculed him because of his religious beliefs . He furthermore alleges that he was prevented from adequately performing the fundamental rituals of Vaishnavism ( the PERSON movement ) .","On DATE the applicant complained about the purported infringements of his religious freedoms to ORG ( Reli\u0123ijas lietu p\u0101rvalde ) of ORG . In particular he complained that the chaplain of P\u0101rlielupe prison had described the PERSON movement as a \u201c satanic \u201d religion . He also pointed out that he was not receiving the same level of spiritual support as the prisoners belonging to the NORP faith .","On DATE the applicant submitted a request to the governor of P\u0101rlielupe prison . He explained that in prison he worked as a cobbler . Part of his earnings he had to spend to buy food in the prison store , since his religion did not allow him to eat some of the food served by the prison canteen . He furthermore complained that in his cell he was unable to read religious writings because of his cellmates\u2019 tendency to discuss their immoral lifestyles by using countless swear words . He invoked Articles CARDINAL and CARDINAL of the LAW and requested to be placed in a separate ( individual ) cell . It appears that he did not receive any written response .","NORP In a letter from ORG of DATE the applicant was informed that his religious rights were being respected \u201c in so far as it was possible \u201d . He was furthermore informed that a NORP education programme was operating in P\u0101rlielupe prison .","On DATE the applicant complained to ORG ( PERSON vietu p\u0101rvalde ) of being mocked and humiliated by the prison staff and his fellow prisoners because of his religious beliefs . He invoked Articles CARDINAL and CARDINAL of the LAW and complained that the circumstances in his cell and the negative attitude of his cellmates prevented him from devoting himself to meditation and studies of Vaishnavism .","On DATE the deputy governor of ORG replied to the applicant by explaining that it was not appropriate to perform religious rituals in a common cell , since it might disturb other prisoners . However , the applicant was informed that the administration of the prison would set aside a specific time for him to visit the prison chapel or another appropriate space so that he would be alone for praying , reading religious literature , and meditating . According to the applicant , that never happened .","On DATE the deputy governor of ORG responded to an enquiry from ORG for information about the applicant . The letter referred to an unspecified prison where the applicant had been held and indicated , inter alia :","\u201c [ the applicant \u2019s ] religious activities create tense situations . [ The applicant ] in the presence of other convicted persons in the residential areas regularly and openly performs religious rituals \u2013 singing , meditation , massages with oils and so on DATE thus disturbing the other convicted persons . Despite the fact that the administration of the prison indicated [ to the applicant ] that residential areas are not meant for carrying out religious activities and offered the use of another room for this purpose , [ the applicant ] refused and stubbornly continued to perform religious rituals in the residential areas . ... With his actions [ the applicant ] offends the honour and dignity of other convicted persons and creates a negative attitude towards himself . \u201d","During a search of the applicant \u2019s belongings at Mat\u012bsa prison on DATE a guard found and confiscated some incense sticks . According to the applicant , the incense was necessary for him to perform the religious rituals of Vaishnavism . The record of the search contains a space for any objections that the prisoner might have . The applicant signed the record but the space for objections was left blank .","On DATE ORG wrote to the president of LAW asking for an explanation of certain religious rituals that several prisoners had sought to perform in prisons . Namely , ORG wished to ascertain whether Vaishnavism required a twice - daily loud chanting of mantras for TIME . The president of the R\u012bga Chapter responded on DATE . He explained that there existed CARDINAL methods for praying to PERSON . The first \u2013 japa DATE involves the repetition of a mantra in a soft voice by using prayer beads . The second \u2013 kirtan DATE is chanting of the PERSON mantra at a regular volume . Typically kirtan is performed by a group of devotees as a form of a religious service . It appears that both forms of prayer are equally acceptable .","At the request of the Agent of the Government , on DATE ORG provided certain information concerning the organisation of religious life in prisons , about the applicant \u2019s complaints received by the ORG , and concerning certain specific aspects of Vaishnavism . Concerning the latter , members of the ORG congregation had explained to representatives of the ORG that some of the basic rituals of Vaishnavism were the burning of incense sticks , a DATE washing , a special diet , studies of religious writings , and meetings with other followers of Vaishnavism . The obligation to observe those rituals was , however , conditional . For instance , if circumstances did not permit it , the burning of incense sticks was not mandatory . According to the members of the congregation , in a prison environment it would recommendable for a follower of Vaishnavism to be placed in a single cell , since the observance of the religious rituals in a shared cell could incite a negative attitude among other prisoners . Concerning religious literature , the members of the congregation affirmed that upon request religious writings could and would be sent to inmates . Lastly , concerning the dietary requirements it was emphasised that the ban on eating meat products was particularly significant for followers of Vaishnavism .","On DATE the applicant refused to stay in his wing of GPE prison . He submitted a written statement to ORG , in which he requested to be moved to PERSON prison and explained that he was in danger in GPE prison . According to the applicant , he orally informed the representatives of the administration of GPE prison that on DATE he had been beaten by other prisoners . He also complained that the smallest detention wing that had been offered to him held CARDINAL other prisoners .","On DATE the administration of GPE prison took a written statement from several prisoners saying that the applicant had not been subjected to physical or mental harassment and that he had not had any conflicts with any of the inmates . TIME after the applicant had refused to return to his wing he was seen by a medical assistant ( feld\u0161ere ) who examined him and did not find any bruises on his body . The relevant excerpt from the applicant \u2019s medical record reads as follows :","\u201c At CARDINAL brought for examination due to bodily injuries .","Does not have any complaints . According to the prisoner , there is no need for a medical examination .","Body examined in its entirety .","Concl[usion ] : No bruises or subcutaneous haematomas have been observed . \u201d","The applicant received a disciplinary penalty in the form of CARDINAL days\u2019 detention in a punishment cell for the refusal to return to his wing .","On DATE the applicant was moved to a different wing of GPE prison where the prisoners are placed in cells ( as opposed to dormitories in the rest of the prison ) .","On DATE the applicant submitted complaints to ORG ( NORP vair\u0101ku nozaru prokurat\u016bra ) . He stated that in GPE prison he had been beaten by \u201c NORP speakers \u201d who had been incited to do so by CARDINAL of the wardens . The applicant asked to be moved to PERSON prison because he felt threatened in all the other prisons in GPE .","The applicant \u2019s complaint was forwarded to ORG , which on DATE refused to initiate criminal proceedings concerning the applicant \u2019s alleged beating in GPE prison . An inspector of ORG took into account written reports that had been drawn up by the administration of GPE prison and written statements from the applicant \u2019s cellmates . It was found that all the information in the file consistently pointed to the conclusion that the applicant had not been attacked by anyone .","On DATE the applicant appealed to ORG ( Organiz\u0113t\u0101s noziedz\u012bbas un citu nozaru specializ\u0113t\u0101 prokurat\u016bra ) against ORG refusal to initiate criminal proceedings . He named CARDINAL prisoners who had allegedly beaten him and complained that the investigator of ORG had not questioned them . He furthermore pointed out that immediately after his arrival at GPE prison as well as on DATE he had complained to representatives of the administration that he was threatened by other inmates , yet no action had been taken . The applicant noted that the prisoners who had been questioned by the investigator of ORG had been the ones friendly to him and that there had been no reason to question them in relation to his alleged beating . Concerning his medical examination on DATE the applicant submitted that the medical assistant had observed him \u201c while holding a cup of coffee in her hands \u201d . She had declared that the applicant had a \u201c red head \u201d and had only noticed a scratch on his skin when the applicant himself had pointed it out . The medical assistant had refused to give any treatment for the scratch or for the applicant \u2019s headache and had not even recorded his complaints .","On DATE his appeal was rejected by a senior prosecutor of ORG . In reply to the applicant \u2019s complaint that the investigator of ORG had not questioned the CARDINAL inmates whom he had singled out as being responsible for his beating , the prosecutor explained that persons could be questioned only after criminal proceedings had been initiated . Considering that , in the absence of any recorded injuries , there was no reason to initiate criminal proceedings concerning the applicant \u2019s alleged beating , the CARDINAL prisoners named by the applicant could not be questioned .","On DATE the applicant appealed against the reply of CARDINAL DATE . He essentially repeated the arguments that had been set out in his previous complaints , namely , that he had identified by name a prisoner who had threatened and then beaten him , yet that person had never been questioned and that his medical examination on DATE had been very superficial .","In a final decision of DATE another senior prosecutor of ORG rejected the applicant \u2019s complaint . The response was essentially identical to the previous ones given to the applicant but also added that the \u201c lodging of complaints is to be seen as a counteraction against the administration of the prison and against prisoners negatively disposed towards [ the applicant ] \u201d .","On DATE the Criminal Law was amended . Among other things , the minimum prison term for robbery was reduced . The applicant wrote numerous letters to ORG and to prosecutors requesting that his sentence be reduced . He received an explanation that the transitional provisions concerning the entry into force of the amendments to LAW provided that the reduction in the minimum term of imprisonment was not applicable to persons sentenced prior to DATE , the date when the amendments to the law came into effect . The applicant \u2019s subsequent attempts to appeal to ORG remained unsuccessful .","Also in DATE the applicant enquired with the ORG authorities about the possibility of changing his NORP - sounding surname ( PERSON ) to the surname which he had had until DATE ( Bite ) . He received a response stating that under the law he could not change his name before his criminal record was expunged .","In a letter of DATE which was addressed to ORG ( PERSON birojs ) the director of ORG described the applicant \u2019s personal situation and characterised the applicant in negative terms . The applicant subsequently sought in vain to initiate criminal proceedings for defamation against the director of ORG . In DATE the applicant requested ORG - granted legal aid in order to lodge a civil claim for damages against the director of ORG . On DATE ORG ( ORG pal\u012bdz\u012bbas administr\u0101cija ) rejected the applicant \u2019s request for the reason that the law did not provide for legal aid for such claims . The claim which had been drafted by the applicant himself was not accepted by ORG for procedural reasons . The final decision in that regard was adopted on DATE .","On DATE ( after the case had been communicated to the Government ) a psychiatrist issued a CARDINAL - paragraph report on the applicant \u2019s mental health , finding him to be a querulent personality with a tendency to misinterpret other people \u2019s actions towards him as hostile or dismissive and to \u201c aggressively exaggerate his rights by incessantly writing unsubstantiated complaints \u201d .","Article CARDINAL of LAW ( ORG izpildes kodekss ) , as in force at the relevant time , provided for the existence of a chaplaincy service in prisons and indicated that the ORG meetings with clerics and their participation in \u201c moral development activities \u201d were to be regulated by ORG , which were contained in regulations of ORG .","As in force until DATE , Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) provided in paragraph CARDINAL that the chaplains and other staff members of prisons were to organise \u201c moral development activities \u201d , such as lectures , educational talks and musical performances . The \u201c moral development \u201d also included religious events organised by chaplains , such as studies of religious literature , services , sacraments and other ceremonies . It was also noted that \u201c convicted persons shall have the opportunity to educate themselves individually \u201d . Paragraph CARDINAL provided that with the permission of the prison governor or of the director of ORG \u201c representatives of registered religious and public organisations \u201d could be involved in the organisation of the educational activities for prisoners .","Paragraph CARDINAL of the Regulation provided that convicts could only keep a limited selection of objects in their cells , which was exhaustively listed in amendment no . CARDINAL to that Regulation . The list in the amendment did not include incense sticks .","On DATE the previous Regulation was replaced by Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) . LAW of the new ORG provides that the spiritual care of convicted persons is to be organised or performed by chaplains . Paragraph CARDINAL provides that \u201c [ o]nly the religious organisations listed in the normative acts concerning the chaplaincy service shall be authorised to distribute religious literature in prisons \u201d .","At the relevant time the ORG work in prisons was regulated by Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) , entitled \u201c Regulations on the Chaplaincy Service \u201d ( GPE par kapel\u0101nu dienestu ) . The second paragraph of the Regulation provided that chaplains were responsible for ensuring respect for freedom of religion in , among other institutions , prisons . Paragraph CARDINAL provided that chaplains were nominated by the leaders of the GPE , NORP , NORP , ORG , GPE , GPE , DATE GPE , NORP , and NORP denominations .","Paragraph CARDINAL of Regulation no . CARDINAL specified that chaplains were to ensure the spiritual care of prisoners , to lend them moral support and to give them consultations concerning questions of religion and ethics when necessary . According to the information furnished by ORG the chaplaincy service was ecumenical . Prison chaplains were obliged to provide spiritual support to all prisoners , irrespective of their faith , or , should that prove to be impossible , they could invite representatives of the respective religious movement to assist them in their work . Since DATE those principles have been specifically laid down in an internal instruction of ORG entitled the Regulation on ORG ( PERSON vietu kapel\u0101nu dienesta reglaments ) .","In addition , Regulation no . CARDINAL provided that convicted persons could only keep a limited selection of objects in their cells , which was exhaustively listed in amendment no . CARDINAL to that Regulation . The list in the amendment did not include any objects of a religious character , although some of the objects , such as books , photographs and headwear could have religious significance .","In DATE the constitutionality of amendment no . CARDINAL to Regulation no . CARDINAL was challenged in ORG . In a judgment of DATE in case no . DATE ORG declared amendment no . CARDINAL , in so far as it did not allow the storage of religious objects , unconstitutional and void as of CARDINAL DATE .","On DATE ORG Recommendation Rec(CARDINAL)CARDINAL to member states on ORG , which lay down the following guidelines :","\u201c Freedom of thought , conscience and religion","CARDINAL ORG freedom of thought , conscience and religion shall be respected .","CARDINAL The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs , to attend services or meetings led by approved representatives of such religion or beliefs , to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-121202","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2013,"docname":"RUMINSKI v. SWEDEN","importance":3,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Helena J\u00e4derblom;Johan Hirschfeldt;Mark Villiger;Paul Lemmens","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant suffered for DATE from , inter alia , pain in his back and legs and numbness in his right arm . He was granted a full disability pension in DATE , after the diagnosis of lumbago , sciatica and myositis .","In DATE he applied for life annuity and alleged that his physical problems had been caused by his former employment as a driver ( DATE ) , as a dairy worker ( DATE ) and as a food science technician ( DATE to CARDINAL ) . ORG ( F\u00f6rs\u00e4kringskassan , hereinafter \u201c the Office \u201d ) appointed an in - house specialist in orthopaedic surgery who , in a written statement , concluded that there was not a high degree of probability ( h\u00f6g grad av sannolikhet ) that any harmful element in the applicant \u2019s former employment had caused his problems .","On DATE , after having held an oral hearing , the ORG rejected the application . Referring to , inter alia , the specialist statement by the insurance doctor , the ORG held that the applicant had not been subject to any harmful influences which , with a high degree of probability , could have caused or worsened his problems .","The applicant appealed to ORG ( l\u00e4nsr\u00e4tten ) of GPE . On DATE the court , after having held an oral hearing , upheld the ORG \u2019s decision in full .","Upon further appeal to ORG ( kammarr\u00e4tten ) of GPE , the applicant submitted , inter alia , a medical statement ( epikris ) issued in DATE by ORG , division of labour and environmental medicine ( ORG for folkh\u00e4lsa , Arbets- och milj\u00f6medicin ) . According to the medical statement , there were reasons to believe that the applicant \u2019s work had caused his problems . The applicant requested that an oral hearing be held by ORG before it decided whether to grant leave to appeal as well as before it decided on the merits of the case . He also requested expert witnesses to be heard before the court .","In a written statement to the appellate court , the ORG questioned the conclusions in the medical statement and , furthermore , referred to medical records from DATE , in which the applicant was held to be fully able - bodied and in which it was noted that no somatic evidence had been found in support of the applicant \u2019s symptoms .","On DATE ORG decided not to hold an oral hearing prior to deciding on the question of leave to appeal . It referred to the circumstances of the case and the fact that ORG had held an oral hearing . The applicant was given the opportunity to submit further observations . It is unclear whether he did so .","On DATE , ORG granted leave to appeal . Subsequently , on DATE it decided not to hold an oral hearing before deciding on the merits of the case . It referred to the nature of the case and to the fact that an oral hearing had been held before ORG . The applicant was given the opportunity to submit further observations . It is again unclear whether he took advantage of this opportunity .","In a judgment on DATE , ORG upheld the lower court \u2019s judgment in full , giving the following reasons :","\u201c The medical and other evidence in the case does not support that the applicant has been exposed to any such harmful influences in his work which could , with a high degree of probability , have caused his problems . His problems can thus \u2013 as has been found also by ORG \u2013 not be defined as a work - related injury . \u201d","NORP The applicant appealed to ORG ( H\u00f6gsta f\u00f6rvaltningsdomstolen ) . He complained about the lack of reasoning in ORG judgment and argued that that court \u2019s refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of LAW . If ORG were to grant leave to appeal , he requested an oral hearing .","On DATE , ORG refused leave to appeal .","Chapter CARDINAL of LAW ( Skadest\u00e5ndslagen , CARDINAL:CARDINAL ) deals with the civil liability of the State . According to section CARDINAL of that chapter , acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault or negligence .","An individual who wants to claim compensation from the ORG may proceed in either of CARDINAL ways : he or she may petition the Chancellor of Justice ( NORP ) in accordance with LAW on ORG against the State ( F\u00f6rordningen om handl\u00e4ggning av skadest\u00e5ndsanspr\u00e5k mot staten , CARDINAL:CARDINAL ) , or bring a civil action against the ORG before a district court , with the possibility to appeal to a court of appeal and later to ORG . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings before the courts . In such proceedings , the ORG is represented by the Chancellor of ORG ( LAW [ GPE med instruktion f\u00f6r NORP , DATE ] ) .","According to section CARDINAL of LAW ( ORG , CARDINAL ) , the period of limitation in respect of claims against the ORG is DATE from the point in time when the claim arose , unless the period has been interrupted beforehand .","In a judgment of DATE ( ORG DATE p. CARDINAL ) ORG dealt with a claim for damages brought by an individual against the NORP State , inter alia , on the basis of an alleged violation of LAW . The case concerned the excessive length of criminal proceedings and ORG held that the plaintiff \u2019s right under LAW to have the criminal charges against him determined within a reasonable time had been violated . Based on this finding and with reference , inter alia , to ORG and CARDINAL of the Convention and the ORG \u2019s case - law under these provisions , in particular the case of GPE v. GPE ( [ ORG ] , no . CARDINAL\/CARDINAL , ORG CARDINAL-XI ) , ORG concluded that the plaintiff was entitled to compensation under NORP law for both pecuniary and non - pecuniary damage . With respect to the level of compensation for non - pecuniary damage , ORG took note of the criteria established in the ORG \u2019s case - law stating that the ORG \u2019s practice constituted a natural point of departure in this regard .","In a decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) , ORG held that the principle concerning a right to damages established in the abovementioned case of DATE also applied with regard to the rights contained in LAW . ORG stated that the plaintiff \u2019s right to damages on account of a violation of Article CARDINAL should be assessed in the first place under LAW and LAW and Other Coercive Measures ( NORP om ers\u00e4ttning vid frihetsber\u00f6vanden och andra tv\u00e5ngs\u00e5tg\u00e4rder , CARDINAL:CARDINAL ) . To the extent necessary , the relevant provisions of domestic law should be interpreted in accordance with the LAW . If GPE \u2019s obligations under LAW could not be met by such an interpretation , the domestic courts should award compensation without the support of specific legal provisions . As concerned the determination of the level of compensation , ORG repeated that the ORG \u2019s case - law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from CARDINAL country to another in what should be regarded as a reasonable level of compensation .","In a judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) , ORG held that the plaintiffs\u2019 right to respect for their private life under LAW had been violated on the basis that a police decision on a medical examination of some of them had not been \u201c in accordance with the law \u201d . Having found that compensation for the violation could not be awarded directly on the basis of LAW , ORG held that there was no reason to limit the scope of application of the principle established in the above - mentioned cases of DATE and CARDINAL DATE to violations of LAW and CARDINAL of the LAW . In view of this and with reference to , inter alia , LAW and the ORG \u2019s case - law under these ORG , ORG concluded that the plaintiffs should be awarded non - pecuniary damages for the violation of LAW . With regard to the levels of compensation , ORG concluded that they should not be too far removed from the levels which applied when awarding damages under LAW . Generally speaking these levels should , however , be compatible with the case - law of the Court . In the same case , ORG had also concluded , in a judgment dated DATE , that there had been a violation of Article CARDINAL and that an award for non - pecuniary damage should be made on the basis of the principle established in the case of DATE .","Another Supreme Court judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerned a claim for damages against the NORP State on the basis of an alleged violation of LAW relating to the suicide of the LAW father while in detention . ORG concluded that the case revealed no violation of LAW . However , in its reasoning leading to this conclusion , ORG noted , inter alia , that according to the ORG \u2019s case - law there was a right to an effective remedy under LAW connected to the ORG \u2019s duty under the ORG to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty which should , in principle , include a possibility of obtaining compensation for damage . ORG referred in particular to the judgment in PERSON v. GPE ( no . CARDINAL , \u00a7 CARDINAL , ECHR CARDINAL-III ) .","In a judgment of DATE ( NJA DATE N CARDINAL ) , ORG confirmed its previous case - law in a case concerning claims for damages against the NORP State on account of excessive length of tax proceedings . The court affirmed that it is now a general principle of law that , to the extent that GPE has a duty to provide redress to victims of Convention violations through a right to compensation for damages , and that this duty can not be fulfilled even by interpreting national tort law in accordance with the LAW f\u00f6rdagskonform tolkning ) , compensation for damages may be ordered without direct support in law .","Furthermore , on DATE ( NJA DATE p. CARDINAL ) , ORG ordered compensation for non - pecuniary damage to be paid to an applicant for proceedings which had complied neither with the \u201c reasonable time \u201d requirement in LAW nor with the right to an effective remedy in LAW . The proceedings in question had concerned a claim for damages against the ORG .","In CARDINAL judgments of DATE ( T CARDINAL and T CARDINAL ) , ORG ordered compensation to be paid to an applicant for civil proceedings ( first case ) and administrative proceedings ( second case ) which had not complied with the \u201c reasonable time \u201d requirement in LAW .","NORP In a judgment of DATE ( B CARDINAL - CARDINAL ) , ORG reduced the sentence to be served by the defendant in a case where criminal proceedings had not complied with the \u201c reasonable time \u201d requirement in LAW .","Lastly , in a judgment on DATE ( T DATE ) , ORG ordered compensation for non - pecuniary damage to be paid to an applicant for criminal proceedings which had not complied with the \u201c reasonable time \u201d requirement in LAW .","In DATE the Government decided to set up a working group on tort liability and the Convention to study the current legal situation . In DATE the working group submitted its report ( PERSON , ORG CARDINAL:CARDINAL ) to the Government . In the report it is proposed that LAW be amended in order to allow natural and legal persons to obtain damages from the ORG or a municipality for violations of the LAW . Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the ORG has been violated . The aim of the proposal is to provide a legal basis for granting non - pecuniary damages arising from disregard of the LAW and to fulfil , together with the other already existing legal remedies , GPE \u2019s obligations under LAW .","In its comments of DATE on the above report , ORG stated that , since the autumn of DATE following ORG case - law developments ( as set out above ) , it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention . It estimated that it had dealt with CARDINAL cases over DATE . During this time the Chancellor of ORG had also represented the NORP State in a number of cases before the civil courts concerning alleged violations of the Convention . A majority of the cases that the ORG had dealt with had concerned non - pecuniary damages for excessive length of proceedings under LAW . Since DATE , it had received CARDINAL such complaints and in CARDINAL of them , the Chancellor of ORG had found a violation and granted compensation . The level of compensation for non - pecuniary damage had been determined with reference to the ORG \u2019s case - law and varied CARDINAL and SEK CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL and LAW ) . Furthermore , the Chancellor of Justice had dealt with a substantial number of cases ( CARDINAL ) concerning the registration of individuals in the Security Police register . These cases had concerned one or more of Articles CARDINAL , CARDINAL , DATE and DATE of the Convention .","There continue to be other individual cases relating to alleged violations of ORG CARDINAL , CARDINAL and CARDINAL of the LAW , among others . For example , in a decision of CARDINAL DATE ( dnr CARDINAL ) , the Chancellor of Justice held that the reasoning in a ORG judgment failed to fulfil the requirements set by LAW . Referring to the case - law of ORG , the Chancellor of ORG stated that the applicant therefore could be awarded compensation for the damage caused by the violation of the LAW . However , due to the particular circumstances of that case , the applicant was not granted compensation . Furthermore , in a decision of CARDINAL DATE ( dnr PERCENT ) , the Chancellor of ORG found that ORG , in dismissing the applicant \u2019s appeal against a decision by ORG ) , had violated his right to access to court ( the Chancellor referred to the case of ORG v. GPE , no . CARDINAL , DATE ) . Consequently , the applicant was awarded damages ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69492","languageisocode":"ENG","respondent":"FRA","branch":"ADMISSIBILITY","date":2004,"docname":"DELBOS AND OTHERS v. FRANCE","importance":1,"conclusion":"Inadmissible","judges":"","text":["The first applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The third applicant , Mr PERSON , is a GPE national who was born in DATE and lives in GPE .","The applicants were represented before the ORG by Mr D. Foussard , of the ORG d\u2019Etat and ORG , and PERSON , of ORG .","ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , Director of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The first applicant is the production manager of ORG , a company incorporated under NORP law . The second applicant is the production manager of ORG , a company incorporated under GPE law . The third applicant is the managing director of ORG","These CARDINAL companies manufacture several brands of cigarettes and distribute them in GPE . In accordance with the legislation and regulations passed pursuant to ORG CARDINAL\/CARDINAL\/EEC of ORG of CARDINAL DATE , they printed the words \u201c Tobacco seriously damages health \u201d on CARDINAL side of the cigarette packets sold on the NORP market . However , the message was preceded by the phrase \u201c According to Law no . CARDINAL - CARDINAL \u201d .","On DATE the National Anti - Smoking Committee ( ORG national contre le tabagisme \u2013 \u201c the LAW \u201d ) brought proceedings against ORG and ORG , and against the CARDINAL applicants in their capacity as managers of the companies , in ORG . It accused them , inter alia , of breaching LAW of LAW and LAW DATE ( see below ) by printing that phrase on the cigarette packets .","On DATE ORG found the applicants guilty of the offence punishable under LAW of LAW . It sentenced them to a fine of MONEY ( ORG ) each and declared ORG and ORG jointly and severally liable for payment . It also ordered the applicants and the CARDINAL companies jointly and severally to pay ORG CARDINAL in damages to the LOC .","The judgment states , inter alia , the following :","\u201c ...","The addition of the phrase \u2018 According to Law no . CARDINAL - CARDINAL\u2019","...","Under LAW of the Directive of ORG of DATE , \u2018 member ORG may stipulate that the warnings referred to in DATE , CARDINAL and CARDINAL be combined with the indication of the authority that is their ORG .","ORG has not opted to do so .","It is clear [ from Article L. CARDINAL - CARDINAL II and III of LAW , LAW DATE and Article CARDINAL of the aforementioned directive ] that there is an obligation to print health warnings aimed at informing consumers and , accordingly , complying with the formal requirements binding on cigarette manufacturers ; that the possibility of adding an indication of the authority that is their author is in all cases reserved to member GPE of the ORG alone ; and that on pain of breaching those provisions cigarette manufacturers must print at least the minimum statutory message , the wording of which is strictly defined by the legal provisions , and can only supplement it on condition that the addition reinforces the message .","That is not the case regarding the phrase \u2018 According to Law no . CARDINAL - CARDINAL\u2019 which ORG and ORG have printed before the health warning on cigarette packets since that addition distorts the meaning of the message in question by weakening its import because it may suggest that the basis for alerting consumers to the harm done by tobacco is not medical but legal , whereas the harmfulness of tobacco has been proved by recognised scientific studies .","Under the aforementioned provisions , the phrase in question is therefore unlawful .","Despite having been warned by letters of DATE , CARDINAL DATE and DATE [ from the LAW ] that the packets they were manufacturing and importing into GPE did not comply with the applicable regulations , the ORG company managers refused to change the packaging even when injunction proceedings to that end were brought against them in the CARDINAL tribunal de grande instance in DATE .","The wilful and persistent violation of the applicable legal and regulatory provisions attest to the guilty intention of the defendants , who can not validly rely on the fact that the additional phrase in question had been tolerated for DATE in GPE since that tolerance did not create rights . Nor can they properly argue that it was compulsory in their country of origin since that fact does not alter their liability under NORP law .","The CARDINAL elements \u2013 statutory , material and intentional \u2013 of the offence constituted by the unlawful addition of the words \u2018 According to Law no . CARDINAL - CARDINAL\u2019 therefore appear to have been made out .","...","Responsibility for the offence","It is not disputed that at the material time PERSON was the managing director of ORG , ORG the manufacturing director of that company and PERSON the production manager of ORG ...","... it would appear that , having regard to their level of responsibility and their sphere of action , the CARDINAL [ applicants ] ( managing director and manufacturing directors ) could not have been unaware of the particular sphere of application of the relevant NORP regulations and were under a duty to ensure that their manufacturing processes complied with those regulations .","... \u201d","In a judgment of DATE , ORG modified the sentence imposed by the lower court \u2013 increasing it to a fine of ORG CARDINAL against each applicant \u2013 and upheld the remainder of the judgment . ORG indicated , in particular :","\u201c ...","Article L. CARDINAL - CARDINAL of LAW requires that both a general and a specific health warning be printed on cigarette packets in accordance with the terms of the implementing decree of DATE , which uses the terms \u2018 ORG and \u2018 specific ORG . These terms presuppose the transmission of information in writing .","It is clear from those provisions that if the warning is worded in such a way that , for reasons of form or presentation , it no longer constitutes the \u2018 ORG or \u2018 notice\u2019 required by the LAW the law will have been breached .","The phrase \u2018 According to Law no . CARDINAL - CARDINAL\u2019 indicates the authority that is the author of the warning elliptically , with a misleading definition and only a vague reference to the identity ( references to legislation customarily being made by the date or sometimes by the date and number , but never the latter alone ) ; the conclusion must therefore be drawn that the phrase \u2018 According to Law no . CARDINAL - CARDINAL\u2019 is not informative .","An examination of the wording used shows that a distancing effect is created between the emitter of the message and the opinion of its author . That distancing effect can only be perceived by readers as a formally neutral position to which they do not have to adhere and which is open to criticism . It amounts to a form of implicit comment on a compulsory and unjustified measure , which absorbs and transforms the sense of the health message .","These considerations show that the obligation to provide the statutory information is circumvented in such a way as to load the wording of the compulsory notice with an implicit but clear meaning that twists and distorts the sense and import of the statutory message .","The conclusion that has to be drawn in these circumstances is that where the statutory message is combined with the words \u2018 According to Law no . CARDINAL - CARDINAL\u2019 it is emitted in conditions which breach Article L. CARDINAL - CARDINAL of LAW .","[ The applicants ] can not justify infringing the law on the basis of foreign practices or obedience to a NORP directive in a situation in which the directive was not binding on them and , moreover , they have respected neither the letter nor the spirit of it .","The intentional element is sufficiently made out by the subtle nature of the enigmatic wording of the text added to the statutory message , which allows it both to avoid conveying any information and potentially to take refuge behind the legislative authority .","... \u201d","The applicants appealed on points of law against that judgment . Relying on , inter alia , LAW , they argued in particular that in finding them guilty of a criminal offence , whereas Article PERSON of LAW and LAW DATE did not penalise an addition such as \u2018 According to PERSON no . CARDINAL - CARDINAL\u2019 before \u2018 Tobacco seriously damages FAC , the lower courts had violated the principle that only the law can define a crime and prescribe a penalty and the principle that the criminal law must be strictly interpreted . They added that Article PERSON of LAW was in any case imprecise and that the lower courts should therefore have refused to apply it .","On DATE ORG dismissed the appeal on the following grounds :","\u201c ...","As stated in ORG judgment , PERSON , PERSON and PERSON , the respective managers of the companies of the ORG group , were prosecuted for adding the words \u2018 According to Law no . CARDINAL - CARDINAL\u2019 before the health warning \u2018 Tobacco seriously damages health\u2019 on cigarette packets marketed by the companies .","In holding that the offence had been made out , ORG found that by modifying the text of the general health warning required by the legal and regulatory provisions the defendants had distorted its meaning .","Accordingly , ORG justified its decision .","As the optional provisions of LAW CARDINAL\/CARDINAL\/EEC of CARDINAL DATE were not transposed into domestic law , any alteration of the text of the health warning required by the provisions of Article PERSON of LAW amounts to an offence punishable under LAW of LAW .","... \u201d","On DATE ORG adopted Directive CARDINAL\/CARDINAL\/EEC on the approximation of the laws , regulations and administrative provisions of the member GPE concerning the labelling of tobacco products . DATE ( as amended by Directive ORG of CARDINAL DATE ) was worded as follows :","\u201c CARDINAL . All unit packets of tobacco products shall carry , on the most visible surface , the following general warning in the official language or languages of the country of final marketing : Tobacco seriously damages health .","With regard to cigarette packets , the other large surface of the packet shall carry , in the official language or languages of the country of final marketing , specific warnings alternating in accordance with the following rule :","\u2013 each member State shall draw up a list of warnings taken exclusively from those listed in LAW ,","\u2013 the specific warnings selected shall be printed on the unit packets so as to guarantee the appearance of each warning on an equal quantity of unit packets , with a tolerance of PERCENT .","...","Member GPE may stipulate that the warnings referred to in DATE , CARDINAL and CARDINAL be combined with the indication of the authority that is their author .","On cigarette packets the warnings provided for in DATE and CARDINAL shall cover PERCENT of each large surface of the unit packet , excluding the indication of the authority provided for in paragraph CARDINAL . This percentage shall be increased to PERCENT for countries with CARDINAL official languages and to PERCENT for countries with CARDINAL official languages .","The required warnings on the CARDINAL largest surfaces of each cigarette packet :","( a ) shall be clear and legible ;","( b ) shall be printed in bold letters ;","( c ) shall be printed on a contrasting background ;","( d ) shall not be printed in a place where they may be damaged when the package is opened ;","( e ) shall not be printed on the transparent wrapper or any other external wrapping .","... \u201d","That directive was transposed into NORP law by PERSON no . CARDINAL - CARDINAL of DATE . The following Article was thus inserted into LAW :","\u201c ...","II . Every unit packet of tobacco or tobacco products shall carry , in accordance with the terms and conditions specified by order of the Minister of Health , the notice \u2018 Tobacco seriously damages health\u2019 .","...","III bis . All unit packets of tobacco and tobacco products shall carry , in the manner determined by an order of the Minister of Health , a specific health message .","... \u201d","On the basis of those provisions , the Minister of ORG issued an order on DATE \u201c determining the methods for analysing the nicotine and tar contents and the methods for verifying the accuracy of the notice on packaging and the manner in which the health messages and compulsory notices should feature on packets of tobacco and tobacco products \u201d , LAW of which was worded as follows :","\u201c CARDINAL . All unit packets of tobacco and tobacco products shall carry , on the most visible surface , the following general warning : \u2018 Tobacco seriously damages health\u2019 .","With regard to cigarette packets , the other large surface of the packet shall carry CARDINAL of the following specific warnings :","Smoking causes cancer ;","Smoking causes heart disease ;","Smoking when pregnant harms your baby ;","Smoking damages the health of those around you ;","Do n\u2019t smoke if you want to stay healthy .","...","On cigarette packets the warnings provided for in DATE and CARDINAL shall cover PERCENT of each large surface of the unit packet .","The required warnings on the CARDINAL largest surfaces of each cigarette packet","( a ) shall be clear and legible ;","( b ) shall be printed in bold letters on a contrasting background ;","( c ) shall not be printed in a place where they may be damaged when the package is opened ;","( d ) shall not be printed on the transparent wrapper or any other external wrapping .","... \u201d","Under Article L. CARDINAL - CARDINAL of LAW , \u201c anyone who commits a breach of the provisions [ of LAW L. CARDINAL - CARDINAL shall be liable to a fine of between ORG and ORG CARDINAL,CARDINAL \u201d . Article PERSON authorised \u201c associations that [ had ] been formally registered for DATE at the material time and whose articles of association includ[ed ] the fight against smoking [ to ] exercise the rights conferred on civil parties in respect of [ the above - mentioned offence ] \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-96701","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF SHUGAYEV v. RUSSIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 6-3-c;Violation of Art. 34","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and is serving a prison sentence in GPE .","On DATE the applicant was arrested on suspicion of murder . On DATE he was released on an undertaking not to leave town .","The applicant was subsequently apprehended on suspicion of another murder . According to him , the arrest took place on DATE . The Government submitted that he was arrested on DATE . It appears that the applicant was not provided with any legal assistance when questioned by the investigator . A lawyer was appointed to represent him on DATE . It appears that the applicant was dissatisfied with the quality of the lawyer \u2019s services and dismissed him .","On DATE the ORG found the applicant guilty of murder and sentenced him to DATE imprisonment . On DATE the ORG quashed the applicant \u2019s conviction on appeal and remitted the matter for fresh consideration .","On DATE the ORG found the applicant guilty of murder and sentenced him to DATE imprisonment . On DATE ORG upheld the conviction on appeal .","On DATE ORG opened another trial . PERSON was appointed to represent the applicant .","On DATE the applicant asked the court to dismiss the lawyer , alleging that he was not performing his duties properly . His request was denied .","On DATE the ORG found the applicant guilty of murder and sentenced him to life imprisonment . On DATE ORG of GPE upheld his conviction on appeal . The applicant , who was not represented , made oral submissions to the court by means of a video teleconference . The prosecutor was present and argued in favour of dismissing the applicant \u2019s appeal .","On DATE the Sol - Iletskiy ORG of the Orenburg Region commuted the applicant \u2019s sentence to CARDINAL and a half years\u2019 imprisonment .","DATE the applicant was detained at transit prison GPE in GPE . According to the Government , the relevant internal regulations required that , for the time of the applicant \u2019s stay there , his personal property was withheld from him for security reasons . His personal belongings were duly logged and then returned to him at the end of his stay . According to the applicant , neither the documents nor many of his personal belongings were returned to him .","The applicant lodged a complaint with ORG on DATE alleging that his documents had been unlawfully seized and his personal property had been stolen . The complaint was transferred to the regional department of corrections . They questioned CARDINAL of the guards and the applicant . The guard claimed that all the applicant \u2019s belongings had been returned to him against a signed receipt . According to the Government , the applicant withdrew his allegations . They submitted a copy of a statement by the applicant dated DATE where he confirmed in writing that he did not have any claims against the administration of the transit prison .","On an unspecified date the applicant lodged a complaint with ORG of Orenburg in respect of the loss of his personal effects . On DATE the court dismissed it without consideration on the merits due to the applicant \u2019s failure to comply with certain procedural requirements . It appears that the applicant did not appeal .","DATE and DATE the applicant was detained at correctional institution IK-CARDINAL in GPE .","According to the applicant , he sent out CARDINAL letters to ORG on DATE and CARDINAL DATE . The letters never reached ORG . Nor were they registered in the outgoing correspondence log of the correctional institution submitted by the Government . The applicant \u2019s next letter of CARDINAL DATE reached ORG . That letter was not registered in the log either .","NORP The letter which the applicant dated as of CARDINAL DATE was dispatched by the administration of the correctional colony on DATE .","The applicant allegedly tried to send another letter to ORG on DATE . He claimed that his letter was not accepted for dispatch and the guards beat him up for persisting in his correspondence with the ORG .","The applicant further alleged that on DATE the administration of the correctional institution refused to dispatch his letter of CARDINAL October CARDINAL addressed to the ORG . The letter was returned to the applicant with a handwritten note on the envelope which read \u201c what kind of news is that ? \u201d ( \u00ab \u0427\u0442\u043e \u0437\u0430 \u043d\u043e\u0432\u043e\u0441\u0442\u0438 ? ORG ) .","According to the copies of the logs of outgoing correspondence submitted by the ORG , the applicant asked the administration of the correctional institution to send out CARDINAL letters in DATE and CARDINAL letters in DATE respectively . CARDINAL of the letters sent out in DATE were addressed to the ORG . Both of them reached their destination .","It appears that the applicant was repeatedly transferred from CARDINAL correctional institution to another . DATE and DATE he served his sentence at correctional institution ORG in GPE in GPE . Then he was taken to transit prison GPE in GPE where he arrived on DATE . According to the applicant , he sent a letter to the ORG notifying it of the change of his address . The letter never reached the ORG .","On DATE the applicant was transferred back to correctional institution IK-CARDINAL in GPE . On DATE he arrived and stayed there for DATE . On DATE he arrived at correctional institution IK-CARDINAL in GPE where he has been detained to date . According to the applicant , on CARDINAL and DATE he sent CARDINAL letters to the ORG notifying it of the change of his address . The letters did not reach the ORG .","On DATE the ORG decided to give notice of the application to the Government . The relevant letter addressed to the applicant did not reach him . The ORG further sent CARDINAL more letters to the applicant on DATE and CARDINAL DATE . The applicant did not receive the letters . Once the time - limit established by ORG for the submission by the applicant of his observations had expired , on DATE the ORG requested the ORG to submit further information confirming the receipt by the applicant of the ORG \u2019s correspondence . A copy of the letter addressed to the applicant did not reach him . All the correspondence was forwarded to correctional institution ORG in GPE .","According to the copies of the incoming correspondence registration logs submitted by the Government , the above - mentioned letters from the ORG did not reach the correctional institution to which they were addressed .","The Government also submitted copies of the outgoing correspondence registration log of IK-CARDINAL , which indicated that the applicant sent out CARDINAL letters to ORG on DATE and DATE . The said letters did not reach the ORG .","On DATE the ORG sent another letter to the applicant by registered mail . It appears that correctional institution ORG , to which the letter was addressed , forwarded it to correctional institution GPE , where the applicant was actually detained . On CARDINAL DATE the administration of IK-CARDINAL registered the letter in the incoming correspondence log as received for the applicant from ORG ) . The letter was opened by an officer on duty and the applicant refused to accept it . The administration of the penitentiary establishment interpreted his refusal as a decision not to pursue further his application lodged before the ORG and informed the ORG accordingly .","On DATE and CARDINAL DATE and CARDINAL DATE the administration of the correctional institution summoned the applicant in order to deliver the ORG \u2019s letter to him . The applicant did not show up .","On DATE the applicant had a meeting with CARDINAL of the officers of the correctional institution concerning the updating of his personal file . The officer tried again to deliver the ORG \u2019s letter to the applicant , who refused to take it . He agreed to accept the letter only on DATE .","It appears that the officer who was responsible for the opening of the applicant \u2019s letter was subjected to disciplinary dismissal .","The ORG \u2019s letter of DATE sent to correctional institution ORG by registered mail was returned to the ORG by the post office with a note that the applicant had not been found at the address indicated .","According to the ORG , the letters sent by the ORG to the applicant on DATE and DATE did not reach correctional institution IK-CARDINAL .","On DATE the applicant received the ORG \u2019s letter of DATE , as per the registration log submitted by the Government .","On DATE the applicant submitted another letter to be dispatched to the ORG . The letter was returned to him . The post office had allegedly refused to mail it because the envelope was covered with adhesive tape . The applicant resubmitted the letter in a new envelope without adhesive tape on DATE . It was duly sent to the ORG .","The Code of Criminal Procedure of GPE ( in force from DATE ) provides :","Article CARDINAL","\u201c CARDINAL . Participation of legal counsel in criminal proceedings is mandatory if :","CARDINAL ) NORP the suspect or the accused has not waived legal representation in accordance with LAW ;","...","CARDINAL ) the suspect or the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty ;","...","NORP ...","In the circumstances as set forth in paragraph CARDINAL above , unless counsel is retained by the suspect or the accused , or his lawful representative , or other persons on the request of , or with the consent of , the suspect or the accused , it is incumbent on the investigator , prosecutor or the court to ensure participation of legal counsel in the proceedings . \u201d","Article CARDINAL","\u201c CARDINAL . The suspect or the accused may refuse legal assistance at any stage of criminal proceedings . Such a waiver may only be accepted if made on the suspect or accused \u2019s own initiative . The waiver must be filed in writing and must be recorded in TIME of the relevant procedural act .","... \u201d","Pursuant to LAW , the appeal court examines appeals with a view to verifying the lawfulness , validity and fairness of judgments . Under LAW and CARDINAL of the Code , the appeal court may directly examine evidence , including additional material submitted by the parties .","NORP In accordance with LAW , upon receipt of the criminal case and the statements of appeal , the judge fixes the date , time and place for a hearing . The parties shall be notified of the date , time and place of the hearing DATE before the scheduled hearing . The court determines whether the detained convict should be summoned to the hearing . If the convict has expressed the wish to be present at the examination of his appeal , he has the right to participate in person or to state his case via video link . The manner of his participation in the hearing is to be determined by the court .","Examining the compatibility of LAW , LAW ruled as follows ( decision no . CARDINAL of DATE ) :","\u201c LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict \u2019s right to legal assistance in such proceedings may be restricted . \u201d","NORP That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in LAW . It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings .","In a number of cases ( decisions of CARDINAL DATE and DATE , DATE , DATE and DATE ) the Presidium of ORG of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the participation of defence counsel in the appeal proceedings , although it was obligatory for the accused to be legally represented .","The Code of Corrections of GPE ( in force from DATE ) provides :","Article CARDINAL","\u201c CARDINAL . The incoming and outgoing correspondence of persons serving a prison sentence is subject to censorship by the administration of the correctional institution . The correspondence maintained with a court , a prosecutor \u2019s office , a supervising body of corrections , as well as with the Ombudsman of GPE , a public monitoring commission established in accordance with applicable legislation of GPE , and ORG shall be free of censorship . \u201d","The Internal Regulations of Correctional Institutions ( in force from DATE ) provides :","\u201c CARDINAL . The letters addressed to a person serving a prison sentence and received after his departure from a correctional institution shall be forwarded to his new address within DATE of their receipt . \u201d"],"violated_articles":["34","6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5967","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2001,"docname":"MARSHALL v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Georg Ress;Nicolas Bratza","text":["The applicant , Mr PERSON , is an NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by PERSON PERSON , a lawyer working with ORG , a non - governmental organisation based in GPE , GPE . The Government are represented by their Agent , PERSON , ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE around TIME the applicant was arrested under LAW DATE ( \u201c the DATE LAW ) by a military patrol accompanied by an officer of ORG ( \u201c ORG \u201d ) . The applicant was brought to ORG in GPE where he was questioned about his involvement in serious paramilitary activity including the abduction and murder of an individual .","On TIME CARDINAL DATE an application was made to the Secretary of ORG for an extension order under section PERSON ) of the CARDINAL Act , extending the applicant \u2019s detention for a further DATE . Notice of the application was given to the applicant , who consulted his lawyer on the terms of the application . No representations were made by the applicant to the Secretary of ORG . The application was granted by the Secretary of ORG .","At TIME on CARDINAL DATE the applicant was given notice that a further application had been made to the Secretary of ORG for an extension order for a further period of TIME in order to check an alibi statement which the applicant had advanced during interview and to await the results of forensic tests . No representations were made by the applicant to the Secretary of ORG , who granted the extension requested .","On DATE at TIME the applicant was released without charge . His period of detention from arrest was DATE , TIME and TIME .","While in detention the applicant was never brought before any judicial authority . Throughout the period of detention the applicant was able to have access to a solicitor including before the start of each interview . The applicant saw his solicitor on CARDINAL occasions during his detention . His detention during the first TIME was regularly reviewed by senior police officers not directly involved in the case as required by LAW and LAW issued under LAW of GPE ( Emergency LAW Act DATE .","The applicant has drawn attention in his observations in reply to those of the Government to his claim that police officers made intimidating and abusive remarks about his solicitor during his detention and to the fact that she was subsequently murdered on DATE . The applicant also criticises the austerity of the holding conditions in FAC where he was detained .","In its PERSON and Others v. the GPE judgment ( DATE , Series A no . CARDINAL ) , the ORG held that there had been a violation of LAW in the case of all CARDINAL applicants , who had been detained under LAW of the Prevention of Terrorism Act DATE , which was the predecessor provision of section CARDINAL of the CARDINAL Act . The applicants had been held for periods ranging DATE and QUANTITY - and - a - half hours and DATE and TIME without being brought before a judicial authority . The ORG found that even the shortest of the periods of detention , namely DATE and TIME , fell outside the strict constraints as to time permitted by the first part of LAW . In the ORG \u2019s view , the undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not on its own sufficient to ensure compliance with the specific requirements of LAW .","Following that judgment , GPE informed the Secretary General of ORG on DATE that the ORG had availed themselves of the right of derogation conferred by LAW to the extent that the exercise of powers under section CARDINAL of LAW might be inconsistent with the obligations imposed by LAW . Part of that declaration reads as follows :","\u201c ... Following [ the PERSON and Others judgment ] , the Secretary of ORG for ORG informed ORG on DATE that , against the background of the terrorist campaign , and the over - riding need to bring terrorists to justice , the ORG did not believe that the maximum period of detention should be reduced . He informed ORG that the Government were examining the matter with a view to responding to the judgment . On DATE , the Secretary of ORG further informed ORG that it remained the Government \u2019s wish , if it could be achieved , to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer . But a further period of reflection and consultation was necessary before the ORG could bring forward a firm and final view . Since the judgment of CARDINAL DATE as well as previously , the Government have found it necessary to continue to exercise , in relation to terrorism connected with the affairs of GPE , the powers described above enabling further detention without charge , for periods of DATE , on the authority of the Secretary of ORG , to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted . To the extent that the exercise of these powers may be inconsistent with the obligations imposed by ORG have availed themselves of the right of derogation conferred by LAW and will continue to do so until further notice ... \u201d","In a further notice dated DATE the GPE informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require .","The DATE Act has been renewed DATE ever since .","Section CARDINAL of the DATE LAW as follows :","\u201c CARDINAL . ( CARDINAL ) Subject to subsection ( CARDINAL ) below , a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be\u2013","( a ) a person guilty of an offence under LAW , DATE , DATE , CARDINAL above ;","( b ) a person who is or has been concerned in the commission , preparation or instigation of acts of terrorism to which this section applies ; or","( c ) a person subject to an exclusion order .","( CARDINAL ) The acts of terrorism to which this section applies are\u2013","( a ) acts of terrorism connected with the affairs of GPE ; and","( b ) acts of terrorism of any other description except acts connected solely with the affairs of GPE or any part of GPE other than GPE .","( CARDINAL ) The power of arrest conferred by subsection ( CARDINAL ) above is exercisable only\u2013","( a ) in GPE if the exclusion order was made under section CARDINAL above ; and","( b ) in GPE if it was made under section CARDINAL above .","( CARDINAL ) Subject to subsection ( CARDINAL ) below , a person arrested under this section shall not be detained in right of the arrest for CARDINAL after his arrest .","( CARDINAL ) NORP The Secretary of ORG may , in any particular case , extend the period of fortyeight hours mentioned in subsection ( CARDINAL ) above by a period or periods specified by him , but any such further period or periods shall not exceed DATE in all and if an application for such an extension is made the person detained shall as soon as practicable be given written notice of that fact and of the time when the application was made .","( CARDINAL ) The exercise of the detention powers conferred by this section shall be subject to supervision in accordance with Schedule QUANTITY .","( CARDINAL ) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section . \u201d","The notification made by ORG under LAW was withdrawn on DATE , with effect from DATE .","The political and security situation covering DATE is described in the ORG \u2019s PERSON and McBride v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL , pp . CARDINAL - CARDINAL , \u00a7 \u00a7 CARDINAL ) .","Official statistics indicate that DATE ( DATE ) a total number of QUANTITY persons ( military and civilian ) have died due to the security situation . The number of deaths ( military and civilian ) due to the security situation DATE ( DATE ) is as follows :","DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL .","Official statistics indicate that DATE ( DATE ) a total of CARDINAL persons ( military and civilian ) have been injured as a result of the security situation . The number of persons injured ( military and civilian ) over DATE ( DATE ) is as follows :","DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL ; DATE : CARDINAL .","The reviews undertaken by the authorities of ORG ( Temporary Provisions ) Act DATE and of LAW passed in DATE are summarised at CARDINAL of the Brannigan and McBride judgment .","Reviews of the operation of CARDINAL Act were undertaken by ORG for DATE .","In his DATE Report , which was completed on DATE , the reviewer noted that there had been a marked increase in the level of terrorist activity in the wake of the ORG \u2019s decision to end the cease - fire which it called in DATE .","In his DATE Report , which was completed on DATE , the reviewer noted that the threat of terrorism continued to be real and observed that , while in principle , there should be judicial participation in the extension of detention , \u201c this was not yet possible ... because the judges in [ GPE ] can not yet be asked to do this work . \u201d","In his DATE Report , which was completed on DATE , the reviewer observed that , despite the cease fire declared by the major paramilitary groups in DATE \u201c there are dissident elements who are intent upon causing injury and damage , and they have the capacity to do so . All in all there is a real threat that some terrorist activity will continue in GPE ... My conclusion is this , criminals with a terrorist or paramilitary disposition have the means to carry out attacks with explosives and firearms at any time ; furthermore , some of them have maintained an organisation which has structure and influence . \u201d","As to the continuing use of the power of extended detention , the reviewer reiterated his view expressed in earlier reports , that he favoured judicial involvement in the decision - making process . He noted that the appropriate place to examine this issue thoroughly was in the Consultation Paper which ORG had presented to ORG in DATE .","The Consultation Paper proposed judicial participation in applications for extension . In their submissions in the instant case , the Government indicated that they envisage the introduction of legislation to include provisions for a form of judicial involvement in extensions of detention .","An analysis of court remedies relevant to arrest and detention under the prevention of terrorism legislation including section CARDINAL of the CARDINAL Act is contained in the above - mentioned ORG judgment ( pp . CARDINAL , \u00a7 \u00a7 DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105582","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2011,"docname":"KOLOBOV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , in LOC . ORG ( \u201c the Government \u201d ) were represented by PERSON PERSON , the then Representative of GPE at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant \u2019s son , PERSON , was suspected of several offences , including murder . On DATE the applicant \u2019s son was driving the applicant \u2019s car ORG when he was stopped by the police . A car inspection record was drawn up on DATE . The car was taken to the district police station car park . The applicant was told that the car was subject to a restraint order ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u043e \u043d\u0430\u043b\u043e\u0436\u0435\u043d\u0438\u0438 \u0430\u0440\u0435\u0441\u0442\u0430 \u043d\u0430 \u0438\u043c\u0443\u0449\u0435\u0441\u0442\u0432\u043e ) .","On DATE an investigator from the FAC prosecutor \u2019s office issued an impounding order in respect of the car , worded as follows :","\u201c [ H]aving examined the criminal case file in respect of PERSON , and given that his criminal activity has caused pecuniary damage to [ the victims ] ; considering that the damage has not been remedied in full , as well as the fact that PERSON used the car for committing criminal offences ; noting that the investigation has established that certain parts of the car were taken as a result of assaults and murders against their owners ; for the purpose of returning the property , securing civil claims and confiscating property , and pursuant to LAW , I order that the car , owned by ORG and currently in the possession of GPE , be impounded and placed in the [ police station ] car park \u201d .","According to the inventory list drawn up on DATE after a visual inspection of the car \u2019s exterior ( because no key was available ) , the car was in good condition .","In reply to the applicant \u2019s complaint , by a letter of CARDINAL DATE the prosecutor informed him as follows :","\u201c ... the impounding order imposed by the investigator on the car ... was lawful and justified because the car was a piece of physical evidence in the case . The seizure did not seek to secure civil claims or a confiscation order in respect of A. GPE \u2019s property since he was not the owner of the car in question .","A request for lifting the impounding order should be addressed to the court trying the case against A. GPE . \u201d","On DATE the ORG convicted the applicant \u2019s son of murder and robbery . He was sentenced to a term of imprisonment and ordered to pay compensation to the victims . According to the Government , it could be seen from the judgment that the robbery had been committed with the use of the applicant \u2019s car , as various items taken away from the victims and firearms had been transported in that car .","In the same judgment , the trial court lifted the restraint order and ordered the authorities to return the car to the applicant . However , it also held that unspecified \u201c parts of the car body should be destroyed \u201d . The judgment became final on DATE .","In reply to the applicant \u2019s request for the car to be returned , on DATE the town prosecutor \u2019s office advised him that he should contact the person in charge of the police station car park for further information . The police station , in their turn , told the applicant that he was obliged to pay a parking fee . The applicant refused . On DATE the town prosecutor \u2019s office confirmed that this requirement was unlawful .","In reply to the applicant \u2019s further complaint , on DATE the regional prosecutor \u2019s office informed him that the car would be returned to him on DATE . The car was returned to him on that date in a dilapidated condition . According to the applicant and an expert report drawn up on the same date , tyres were damaged and CARDINAL fog lights were missing . The applicant and PERSON also alleged that several objects ( a stereo and its speakers , a radio scanner , a first - aid kit , a fire extinguisher , floor mats , etc . ) were missing .","In DATE the applicant brought civil proceedings against the town prosecutor \u2019s office and the police department . His claims read as follows :","\u201c On DATE my car was taken to the LOC police station car park . However , a restraint order was issued only on DATE . On DATE , an inventory list was drawn up ... As followed from the judgment of DATE concerning my son , the car had to be returned to me ... The judgment became final on DATE ... The car was not returned to me because the [ authorities ] told me that I had to be a fee ... I sustained pecuniary damage because of the loss or deterioration of several parts of the car ... Unreasonable and unlawful actions of the authorities caused moral suffering because I had to spend time and effort to initiate proceedings and complaints ... \u201d","The case was assigned to a justice of the peace in ORG of Magnitogorsk . He held several hearings and ordered several adjournments , in particular at the applicant \u2019s request , to collect evidence and to hear witnesses . The judge decided that the Pravoberezhniy police station , as well as the federal ORG and ORG , were the appropriate defendants in the case .","On DATE the court established that the car had been considered as physical evidence in the criminal case against the applicant \u2019s son ; it had been lawfully placed in the police station car park . The justice of the peace , however , considered that the authorities\u2019 refusal to return the car after DATE and the requirement to pay for its safekeeping had been unlawful . With reference to the inventory list drawn up on DATE , the court considered that the available materials confirmed the loss of the fog lights , the stereo and its speakers , the radio scanner and the floor mats , as well as the damage to the tyres . The court granted the pecuniary claim in part , as well as the court , expert and lawyer \u2019s fees . It awarded the applicant MONEY . The court also held as follows :","\u201c As to the claim in respect of non - pecuniary damage , the court reiterates that compensation in respect of moral or physical suffering caused by actions affecting non - property rights or interest may be awarded under LAW . [ The applicant ] adduced no evidence to confirm that the respondents\u2019 actions had violated his personal non - property rights or interests . Under LAW compensation in respect of moral suffering caused by an action or inaction affecting material rights should be awarded , if prescribed by law . The applicable legislation does not provide for compensation in respect of moral suffering caused by the damaging of a car or by the delay in its return to the owner ... \u201d","The applicant appealed arguing as follows :","\u201c The first - instance court wrongly rejected CARDINAL part of my pecuniary claims ... Also , I was refused compensation in respect of non - pecuniary damage ... As to moral suffering , from DATE to CARDINAL DATE and from DATE to DATE I could not use my car ; I was unlawfully required to pay a parking fee and had to spend my time and effort seeking redress before national authorities ... \u201d","On DATE ORG of GPE upheld the judgment in the following terms :","\u201c The court rightly dismissed the claim concerning non - pecuniary damage because [ the applicant ] had omitted to justify it with reference to any ill health or psychological distress . Instead , he justified it with reference to real losses owing to the impossibility of using the car and the loss of time in reclaiming it . \u201d","In DATE the applicant received the amount awarded ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84450","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF KHATSIYEVA AND OTHERS v. RUSSIA","importance":3,"conclusion":"Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych","text":["The first CARDINAL applicants were born in DATE , DATE and DATE respectively , and DATE seventh applicants were born in DATE , DATE and DATE respectively . The date of birth of the fourth applicant is unknown . The applicants live in the village of ORG in LOC . This district borders on GPE .","The facts of the case as submitted by the parties are summarised in section A below ( paragraphs CARDINAL ) . A description of the documents submitted by the Government is contained in section B below ( paragraphs CARDINAL - CARDINAL ) .","The first applicant is the mother of PERSON , born in DATE , and of the third and fourth applicants . The second applicant is the mother of PERSON , born in DATE , and of the fifth and sixth applicants . The seventh applicant was married to PERSON .","PERSON and PERSON were married and had CARDINAL and CARDINAL children respectively . At the material time both men lived in GPE and went to ORG in DATE to help their families with seasonal agricultural work .","The facts surrounding the death of the applicants\u2019 CARDINAL relatives are disputed by the parties .","The applicants did not witness the events described below and the following account is based on eyewitness statements submitted by them .","In DATE the residents of ORG were cutting grass . The work was done collectively by all villagers in small groups of CARDINAL to CARDINAL people .","On DATE CARDINAL people divided into small groups were working in the surrounding hills . CARDINAL of the groups was formed by PERSON , PERSON , their cousin PERSON , and CARDINAL men who had come to ORG as internally displaced persons from GPE \u2013 FAC , PERSON , and PERSON .","Aslambek Imagamayev stated that while working they had seen several helicopters bombing a forest area near the village of GPE in GPE , QUANTITY away from them .","Around CARDINAL or TIME the group in which the applicants\u2019 relatives were working had decided to go home for lunch , when CARDINAL military helicopters appeared from the direction of GPE and started circling low above the field . PERSON identified them as ORG . CARDINAL of the helicopters fired a burst from an aircraft machine - gun at a spot situated QUANTITY from the men . They were scared and , throwing down their scythes , ran to a white GPE car and drove down the hill in the direction of ORG . ORG and PERSON claimed that the helicopters had flown away but then reappeared and the men saw them right above the car , hovering at low altitude . They stopped the vehicle and ran for cover in different directions .","The helicopters launched non - guided missiles and strafed the FAC car with aircraft machine - guns with the result that its back tyres were flattened . They then chased the men . CARDINAL of the helicopters fired a missile at the place where PERSON and PERSON were hiding . They were both killed and PERSON , who was nearby , was wounded by shrapnel in his leg .","Aslambek Imagamayev stated that he had run through the forest to tell the villagers what had happened . He stated that he had heard the helicopters shooting for some time . ORG testified that he had run towards the river and had hidden there in a bush . He estimated that the attack on the FAC car had continued for TIME . After the helicopters had left , he returned to the vehicle and found the bodies of PERSON and PERSON QUANTITY away from the car .","The bodies were taken to the village in the damaged ORG .","NORP The attack and the deaths were reported by human rights NGOs and the NORP mass - media in DATE .","According to the Government , since the beginning of the counter - terrorist operation within the territory of GPE , the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in LOC . The residents of GPE had been notified , through the television and press , of the risk of being at the administrative border with GPE as well as of the actions they should perform when in the area of a counter - terrorist operation so as to indicate that they did not belong to illegal armed groups . In particular , once they had established \u201c visual contact \u201d with representatives of the federal forces , residents were supposed to stop moving , mark themselves with a piece of white cloth and wait for the arrival of a group of servicemen for an identity check .","On DATE the authorities carried out a special operation aimed at searching for the base camp , QUANTITY to the south of the village of ORG , of a group of CARDINAL illegal fighters , who were to be detained . The operation was planned and commanded by senior officers of ORG of ORG ( ORG \u0433\u0440\u0443\u043f\u043f\u0438\u0440\u043e\u0432\u043a\u0430 \u0432\u043e\u0439\u0441\u043a ORG \u0433\u0440\u0443\u043f\u043f\u0438\u0440\u043e\u0432\u043a\u0438 \u0432\u043e\u0439\u0441\u043a ) . The ORG refused to indicate the names of those officers or provide details of the operation , stating that disclosure of the information might be harmful to the ORG \u2019s national security interests . According to them , \u201c in the materials of the preliminary investigation file there was no information \u201d as to whether the residents of ORG had been warned in advance about the operation in question , or whether the military personnel involved had been instructed to avoid civilian casualties .","During the operation , a federal transport MI-CARDINAL helicopter was hit by fire from members of illegal armed groups in the vicinity of the village of ORG and crashed to the ground . Orders were given to evacuate the crew and servicemen on board the helicopter from the site of the crash . The Government alleged , with reference to the findings of ORG , that servicemen who had arrived to evacuate those injured also came under fire from illegal fighters . The airspace above the area of the rescue operation was patrolled in shifts by a pair of military MI-CARDINAL helicopters .","At TIME , while patrolling over the area situated QUANTITY to the west of ORG and QUANTITY from the site of the crash of the MI-CARDINAL helicopter , the pilots of the MI-CARDINAL helicopters saw a FAC car and a group of CARDINAL men with light machine - guns . In the ORG \u2019s submission , the pilots observed the men through a target control system of tenfold magnification , from a distance of QUANTITY and at an altitude of QUANTITY .","According to the ORG , the pilots reported this to the command centre and having received the respective order fired warning shots at a spot situated QUANTITY away from the car and the people . The men immediately got into the car and started driving away , instead of staying where they were and waiting for the arrival of ground troops for an identity check . The pilots again reported to their superiors , received the respective order and fired warning shots for the second time , but the car continued moving . In order to prevent the FAC car with unidentified armed men inside from driving further without authorisation in the close vicinity of the zone of the rescue operation , the pilots , pursuant to their ORG order , fired at the car with the result that PERSON and PERSON were killed and PERSON was wounded .","The Government also submitted that \u201c there was no information in the materials of the preliminary investigation file \u201d as to whether the attacked men had used the firearms against the pilots , and that \u201c according to its technical description , a light machine - gun [ was ] ineffective for hitting a target at a distance of QUANTITY \u201d .","According to the ORG , after the rescue operation in respect of the crashed MI-CARDINAL helicopter had been completed , the servicemen had inspected the area near the crash site and found a Niva car as well as hand grenades , spent cartridges from light machine - guns and a bloodstained ammunition belt near the car .","In TIME CARDINAL DATE several officials from the prosecutor \u2019s office of LOC ( \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0421\u0443\u043d\u0436\u0435\u043d\u0441\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0430 \u2013 \u201c ORG Office \u201d ) and the prosecutor \u2019s office of GPE ( \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 PERSON DATE \u201c ORG \u201d ) arrived at the scene of the incident . They also brought a forensic expert from the city of GPE , in GPE . The officials questioned the witnesses to the attack , inspected the scene of the incident and collected pieces of shrapnel and damaged scythes . No firearms or ammunition were found at the scene of the incident . The officials also examined the bodies and noted the wounds caused by shrapnel and by large - calibre guns .","According to the applicants , at the same time the head of the village administration contacted the military authorities . CARDINAL armoured personnel carriers with servicemen arrived in the village , and together with some local officials they proceeded to the site , but soon afterwards the local officials returned because the military allegedly refused to proceed further .","The Government submitted that on DATE , on the basis of the information received from the ORG administration , ORG had instituted criminal proceedings under LAW ( a ) and ( f ) of LAW ( murder of CARDINAL or more persons committed by a generally dangerous method ) . The case file was assigned the number DATE . After the initial investigative measures had been taken , the case was transferred to military prosecutors and given the number DATE .","According to the applicants , in the absence of any news of the investigation for DATE after the incident , they applied to ORG and then to ORG . They were informed that a criminal investigation had been opened on DATE and that the case file had been given the number DATE . In reply to their subsequent requests to the prosecutors at various levels the applicants received hardly any substantive information about the investigation into the attack . On several occasions they received copies of letters by which their requests had been forwarded to different ORG offices .","On DATE the Chief Military Prosecutor \u2019s Office ( \u0413\u043b\u0430\u0432\u043d\u0430\u044f \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 ) , in reply to a request made by a deputy of ORG from ORG on the ORG behalf , stated that the criminal investigation into the killing of QUANTITY persons near the village of ORG had been supervised by the military prosecutor \u2019s office of ORG ( \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0421\u0435\u0432\u0435\u0440\u043e-\u041a\u0430\u0432\u043a\u0430\u0437\u0441\u043a\u043e\u0433\u043e \u0432\u043e\u0435\u043d\u043d\u043e\u0433\u043e \u043e\u043a\u0440\u0443\u0433\u0430 ) and that he would be informed of any results of the investigation .","On DATE the preliminary investigation into the attack of CARDINAL DATE was stayed for failure to identify those responsible . It was then resumed on DATE ( see paragraphs CARDINAL - CARDINAL below ) . It does not appear that the applicants were informed of any of those decisions .","On DATE the applicants were informed by ORG that on CARDINAL DATE the file in case no . DATE had been transferred for investigation to garrison prosecutor \u2019s office no . CARDINAL ( CARDINAL \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0433\u0430\u0440\u043d\u0438\u0437\u043e\u043d\u0430 ) in GPE , GPE .","On DATE a person acting as the applicants\u2019 representative went to PERSON to find out about the investigation . There he submitted an application stating the facts of the attack and asking for an update on the investigation . An officer of the prosecutor \u2019s office showed him a register of cases , according to which the case had been transferred to a military prosecutor in NORP , GPE , for further investigation .","On DATE the representative went to NORP and talked to the military prosecutor , who informed him that the case had been sent to the military prosecutor \u2019s office of military unit no . DATE ( \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 DATE ) based in GPE , the main NORP military base in GPE . On DATE the representative filed a request for an update on the investigation , on the second applicant \u2019s behalf .","On DATE the second applicant wrote to the military prosecutor of military unit no . DATE . She stated the facts of the case , referred to the number of the criminal investigation file communicated to her by ORG and asked for an update on the investigation . She also requested that she be granted the status of victim in the proceedings . According to the second applicant , she received no reply to that letter .","On DATE the investigating authorities again suspended the investigation on account of failure to identify the alleged perpetrators . It appears that this decision was then quashed by superior prosecutors twice , on DATE and DATE ( see paragraphs DATE CARDINAL below ) . It does not appear that the applicants were notified of any of those decisions .","On DATE the fourth applicant was informed by the military prosecutor of military unit no . DATE that his complaint had been added to the criminal investigation file opened in relation to his brother \u2019s death . The date of the fourth applicant \u2019s complaint was not specified .","On DATE the second applicant wrote to the military prosecutor of military unit no . DATE and to the military prosecutor of ORG . She enquired about developments in the investigation and requested that she and the first applicant be declared victims , in accordance with LAW . She received no reply to those queries , apart from a letter of DATE by which the military prosecutor of ORG informed her that her letter had been forwarded to garrison prosecutor \u2019s office no . CARDINAL in GPE .","On DATE the civil registration office for LOC issued death certificates numbered CARDINAL and CARDINAL for PERSON and PERSON respectively . The date and place of death for both was recorded DATE , village of ORG , ORG .","On DATE the investigating authorities took a decision by which the criminal proceedings in connection with the events of CARDINAL DATE were discontinued in part , as regards the superior ORG order to attack the FAC car , as there was no evidence of a crime in their actions , and another decision ordering that the criminal proceedings be closed as a whole in the absence of evidence of a crime ( see paragraphs DATE below ) . The applicants were informed of these decisions in undated letters ( see paragraph CARDINAL below ) .","On DATE the latter decision of DATE was set aside by superior prosecutors and the proceedings resumed ( see paragraph CARDINAL below ) . They were again discontinued owing to the absence of evidence of a crime on DATE and then re - opened on DATE ( see paragraphs QUANTITY below ) .","On DATE the military prosecutor \u2019s office of military unit CARDINAL informed the applicants that the investigation into the death of PERSON and PERSON had been resumed .","By a letter of CARDINAL DATE the ORG , acting on the ORG behalf , requested the military prosecutor of military unit no . DATE to inform them of the latest development in the case and to grant the status of victim to the first CARDINAL applicants .","In a letter of DATE the military prosecutor \u2019s office of military unit no . CARDINAL informed the applicants that on DATE , with the consent of garrison prosecutor \u2019s office no . CARDINAL , the criminal proceedings instituted in connection with the death of PERSON and PERSON had been discontinued owing to the absence of evidence of a crime in the attack of DATE .","According to the Government , that decision had been taken in view of the investigating authorities\u2019 finding that the pilots of the MI-CARDINAL helicopters had fired at the FAC car , with the result that the applicants\u2019 CARDINAL relatives had been killed , pursuant to an order that had been given by the command centre and that had thus been binding on them . Accordingly , the pilots\u2019 action did not constitute a criminal offence . The actions of superior officers who had given the order to destroy the FAC vehicle did not constitute a criminal offence either , given that after the warning shots the car had continued moving in the close vicinity of the counter - terrorist operation in a situation of active armed resistance , with the members of illegal armed groups threatening the lives of federal servicemen and other persons . The Government did not mention the names of the pilots who had participated in the attack of DATE or those of their superiors who had given the order in question .","On DATE the military prosecutor of military unit no . CARDINAL informed the SRJI that the file in the criminal case relating to the death of PERSON and PERSON had been transferred to the prosecutor \u2019s office of ORG on DATE in order to determine which body was competent to carry out the investigation . The prosecutor \u2019s letter referred to case no . DATE .","DATE . On DATE the military prosecutor of military unit no . CARDINAL again replied to a request from the SRJI , stating that case no . CARDINAL\/CARDINAL\/CARDINAL - CARDINAL instituted in relation to the death of PERSON and PERSON had been forwarded to the prosecutor \u2019s office of ORG on DATE .","In a letter of CARDINAL DATE the ORG requested garrison prosecutor \u2019s office no . CARDINAL to declare the first CARDINAL applicants to be victims in criminal case no . DATE and to grant them access to the case file .","On DATE garrison prosecutor \u2019s office no . CARDINAL notified the first CARDINAL applicants in reply to their query that the file of the case concerning the killing of their sons had been sent to the prosecutor \u2019s office of ORG ( \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u041e\u0431\u044a\u0435\u0434\u0438\u043d\u0435\u043d\u043d\u043e\u0439 \u0433\u0440\u0443\u043f\u043f\u044b \u0432\u043e\u0439\u0441\u043a ) in order to verify whether the decision to discontinue the proceedings had been lawful and well - founded .","In letters of CARDINAL and CARDINAL DATE garrison prosecutor \u2019s office no . CARDINAL stated that the first and second applicants respectively could consult the case file in the garrison prosecutor \u2019s office on any working day from TIME until TIME The letter referred to case file no . CARDINAL\/CARDINAL\/CARDINAL - CARDINALD.","In a letter of CARDINAL DATE garrison prosecutor \u2019s office no . CARDINAL also informed the PERSON , in reply to their query , that the criminal proceedings in case no . CARDINAL - CARDINALD had been discontinued on DATE in the absence of evidence of a crime in the attack of CARDINAL DATE , and that therefore there were no grounds in domestic law for declaring the first CARDINAL applicants to be victims of a crime . The letter added that the first CARDINAL applicants could have access to the case file on any working day between CARDINAL a.m. and TIME","On DATE the ORG applied on the ORG behalf to garrison prosecutor \u2019s office no . CARDINAL . They stated that on DATE the ORG legal counsel had attempted to gain access to the documents in case no . CARDINAL - CARDINALD but this had been refused on the ground that the case file had been transmitted to the military prosecutor \u2019s office of GPE ( \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 PERSON ) . In this connection the PERSON requested garrison prosecutor \u2019s office no . CARDINAL to notify them of the reasons for the transfer of the case to the military prosecutor \u2019s office of GPE and of any new developments in the investigation , together with the date on which , and the place where , the first CARDINAL applicants and their lawyers could study the case file .","On DATE the PERSON sent a similar letter to the military prosecutor \u2019s office of GPE .","On DATE the Chief Military Prosecutor \u2019s Office forwarded the request of the SRJI to the military prosecutor \u2019s office of ORG for examination .","In a letter of DATE garrison prosecutor \u2019s office no . CARDINAL informed the PERSON that the file in criminal case no . CARDINAL\/CARDINAL\/CARDINAL - CARDINALD had been referred to the military prosecutor \u2019s office of ORG for examination and then , after DATE , to a newly organised military prosecutor \u2019s office of military unit no . CARDINAL ( \u0432\u043e\u0435\u043d\u043d\u0430\u044f \u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 DATE ) in GPE . The letter thus invited the applicants and their representatives to apply to the last mentioned prosecutor \u2019s office .","On DATE garrison prosecutor \u2019s office no . CARDINAL stated that they had replied to all the queries from the SRJI in a letter of DATE .","On DATE the military prosecutor \u2019s office of ORG informed the first CARDINAL applicants and the PERSON that the criminal proceedings in case no . CARDINAL\/CARDINAL\/CARDINAL - CARDINALD had been discontinued on DATE and that no subsequent investigative measures had been taken . The military prosecutor \u2019s office of ORG had studied the case materials and found the aforementioned decision of DATE to have been substantiated . The case file had then been forwarded to the military prosecutor \u2019s office of military unit no . CARDINAL and the applicants could consult the file there .","According to the applicants , all their efforts to gain access to the case file have so far proved unsuccessful . On the latest occasion they attempted to consult the case file in DATE , but in vain .","In DATE , at the communication stage , the Government were invited to produce a copy of the investigation file in the criminal case instituted in connection with the attack of DATE and the killing of PERSON and PERSON . Relying on the information obtained from ORG , the ORG refused to submit any documents from the criminal investigation file , stating that , even though the investigation had been discontinued , the disclosure of the documents would be in violation of LAW of LAW since the file contained information of a military nature and personal data concerning the witnesses .","On DATE the application was declared admissible . At that stage the ORG again invited the ORG to submit the investigation file . In DATE the ORG agreed to reveal the case - file materials , apart from documents \u201c the disclosure of which [ might ] be harmful to the interests of the security of GPE and of the participants in the criminal proceedings \u201d and those \u201c which were irrelevant to the investigation \u201d . According to the Government , the submission of the case file at an earlier stage had been inappropriate in view of the need to secure the safety of the participants in the criminal proceedings and to ensure that the information from the preliminary investigation was not disclosed , in accordance with LAW as well as on account of the applicants\u2019 failure to exhaust available domestic remedies .","Eventually , the Government produced a number of documents running to a total of CARDINAL pages . They can be summarised as follows .","By a decision of DATE the prosecutor of LOC ordered that criminal proceedings under LAW ( a ) and ( f ) of LAW ( murder of CARDINAL or more persons committed by a generally dangerous method ) be instituted in connection with an attack by CARDINAL military helicopters DATE which had resulted in the death of PERSON and PERSON .","By a decision of CARDINAL DATE the investigator in charge took up the case . In another decision taken on DATE the investigator in charge granted the status of victim of a crime to PERSON , who had sustained injuries as a result of the attack ( see paragraphs CARDINAL and CARDINAL above ) .","In a decision of CARDINAL DATE the investigator in charge ordered that the case file be transferred to a military prosecutor \u2019s office , which had jurisdiction to investigate criminal offences committed by military personnel .","By a decision of DATE an investigator of the military prosecutor \u2019s office of military unit no . CARDINAL took up the case , which was given the number DATE .","DATE . A decision of DATE taken by the investigator in charge and approved by the military prosecutor of military unit no . DATE ordered that the term of the preliminary investigation should be extended until DATE . The decision stated , in particular , that it had been established that on DATE at TIME the ORG CARDINAL relatives , together with PERSON , ORG , PERSON and PERSON , had arrived in a FAC car at an area QUANTITY to the west of ORG for grass - cutting . The decision then continued :","\u201c At TIME CARDINAL military MI-CARDINAL helicopters appeared over the territory of GPE to the south of the village of ORG and started strafing the territory of GPE . At TIME [ the applicants\u2019 CARDINAL relatives and the CARDINAL other persons mentioned above ] got into the [ FAC ] car and attempted to drive off in the direction of the village of ORG . At the same time the helicopters ... moved in their direction and opened fire on the car from aircraft machine - guns . [ The applicants\u2019 CARDINAL relatives and the CARDINAL others mentioned above ] left the car and went into hiding in grass nearby . The helicopters went on strafing the vehicle and [ the CARDINAL ORG ] hiding - place from missile launchers and aircraft machine - guns . As a result of the attack PERSON and PERSON died . \u201d","The report then listed the investigative actions that had been carried out . It stated , in particular , that the scene of the incident had been inspected and craters and metallic pieces of shrapnel with markings had been found , that the corpses of PERSON and PERSON had been examined and then sent to ORG for a forensic examination , and that PERSON , ORG , PERSON , PERSON and PERSON , who had been present at the scene of the incident on the date of the attack , had been questioned as witnesses . The decision also prescribed that further investigative measures be taken . It ordered that the identity of the pilots of the CARDINAL MI-CARDINAL helicopters be established and that they be questioned , that the identity of the persons who had ordered the pilots to open fire be established and that those persons be charged with a criminal offence , and that other investigative measures necessary to complete the investigation be carried out .","By a decision of DATE the investigator in charge of the military prosecutor \u2019s office of military unit no . DATE suspended the proceedings in case no . DATE . The decision restated the facts of the incident and listed the investigative actions that had been conducted , in the same manner as this had been stated in the decision of DATE . It went on to say the following :","\u201c A witness questioned in the course of the investigation , Lieutenant Colonel PERSON , the head of the headquarters of the aircraft division of a [ deleted ] military unit , confirmed the fact of the attack on the FAC vehicle by helicopters of a [ deleted ] separate helicopter squadron in the vicinity of the village of ORG . It follows from Lieutenant Colonel PERSON \u2019s statement that at present the [ deleted ] separate helicopter squadron had been transferred from the territory of GPE to the place of its permanent station in the city of [ deleted ] .","Taking into account that the alleged perpetrator has not been identified , despite all the measures taken , that all the investigative measures which could have been carried out within the territory of GPE have been taken and that the personnel of the [ deleted ] separate helicopter squadron have left for the place of their permanent station in the town of [ deleted ] ... the investigation should be carried out [ at that place ] in the town of [ deleted ] .","The decision thus ordered that the criminal proceedings be suspended , as it was impossible to establish the identity of those responsible , and that the case file be transmitted to the military prosecutor \u2019s office of the Kursk garrison .","In a decision of CARDINAL DATE the military prosecutor \u2019s office of ORG quashed the decision of DATE , stating that the investigation had been incomplete and ordering that the case be sent to the military prosecutor \u2019s office of military unit no . CARDINAL for additional investigation .","By a decision of CARDINAL DATE an investigator of the military prosecutor \u2019s office of military unit no . DATE took up the case .","A decision of DATE ordered that the criminal proceedings in case no . CARDINAL\/CARDINAL\/CARDINAL - CARDINAL be stayed . It was , in essence , similar to the decision of DATE , but stated in addition the following :","\u201c A witness questioned in the course of the investigation , [ deleted ] L. , stated that on DATE illegal fighters had attacked a [ federal air ] group in the vicinity of the village of ORG . A MI-CARDINAL helicopter [ was hit as a result of the attack ] and fell to the west from ORG ... A search group , together with MI-CARDINAL helicopters for fire support , was sent to the site of the crash . Thereafter the pilots of the helicopters reported that they had destroyed a FAC vehicle from which illegal fighters had been firing at the helicopters . [ Witness L. ] was not asked for permission to open fire on the FAC vehicle . As a result of inspection [ by federal servicemen ] of an area in the vicinity of ORG , a damaged FAC vehicle , hand grenades , spent cartridges from machine - guns cases and a bloodstained ammunition belt were found \u201d .","The decision then concluded that the identity of those responsible could not be established and ordered that the proceedings be suspended .","In a decision of DATE the military prosecutor \u2019s office of ORG set aside the decision of DATE , stating as follows :","\u201c An examination of the materials of the criminal case has established that the investigation was becoming procrastinated , that no practical measures aimed at establishing the identity of those responsible were being taken , that special requests were being met , with the result that it is now difficult to assess the actions or omissions of public officials and pilots of the ORG crew , who have not been questioned to date . Until the present time no forensic examination of the dead bodies has been carried out , and therefore the cause of death has not been established and the question of the damage sustained by [ those who were declared victims in the proceedings ] has not been resolved . \u201d","The military prosecutor \u2019s office thus ordered that the decision of DATE be quashed , that the proceedings in case no . CARDINAL\/CARDINAL\/CARDINAL - CARDINAL instituted in connection with the murder of PERSON and PERSON be resumed and that the case file be forwarded to garrison prosecutor \u2019s office no . CARDINAL for additional investigation .","By a decision of CARDINAL DATE an investigator of the garrison prosecutor \u2019s office no . CARDINAL took up the case , referring to file number CARDINAL\/CARDINAL\/CARDINAL - CARDINALD.","A decision of the military prosecutor \u2019s office of ORG dated DATE again quashed the decision of DATE and ordered the re - opening of the investigation in case no . CARDINAL concerning the murder of the applicants\u2019 relatives . It set out the same reasons as the decision of DATE .","DATE . In a decision of DATE the investigator in charge of garrison prosecutor \u2019s office no . CARDINAL ordered that the criminal proceedings in case no . CARDINAL\/CARDINAL\/CARDINAL - CARDINALD concerning the murder of PERSON and PERSON be closed in part . The decision stated as follows :","\u201c On DATE at TIME a MI-CARDINAL helicopter of a [ deleted ] separate helicopter squadron fell down in the vicinity of the village of ORG of LOC . A helicopter which arrived at the site of the crash for the evacuation of the injured servicemen was also attacked by fire . On DATE at TIME , pursuant to an order of Colonel NORP , the commander of military unit no . DATE , CARDINAL MI-CARDINAL helicopters under the command of Major [ the real name is replaced with the nickname \u201c PERSON \u201d ] and PERSON [ the real name is replaced with the nickname \u201c Petrov \u201d ] were sent to cover the rescue operation . At TIME , while patrolling over the area to the west of ORG , they saw a white [ Niva ] vehicle and CARDINAL [ rather than CARDINAL ] persons armed with automatic firearms standing nearby , and immediately reported this to the command centre of ORG in the village of GPE of GPE . The helicopter[s ] [ were ] at an altitude of QUANTITY and at a distance of QUANTITY from the car . [ The pilots ] observed the car through a target control system of tenfold magnification . The command centre reported that the identity of those persons would be established . TIME the command centre gave an order to destroy the vehicle . Then [ the pilots ] fired a warning shot from a gun at a spot situated QUANTITY away from the car with the purpose of warning everybody to stay where they were until the arrival of ground troops . After the warning shot , the people got into the car and started driving in the direction of the village of ORG . [ The pilots ] reported to the command centre and received a repeated order to destroy the vehicle . Following the order , [ the pilots ] again fired a warning burst from an aircraft machine - gun . The car continued to advance . Thereafter , the third burst for effect was fired from the helicopter under the command of Major [ \u201c PERSON \u201d ] after which the car stopped . This was reported to the command centre and to the ground troops ... As a result of the attack PERSON and PERSON died .","Accordingly , there is nominal evidence of a criminal offence punishable under LAW ( CARDINAL ) of LAW [ aggravated abuse of power ] in the actions of an official who ordered the destruction of the [ Niva ] vehicle . However , [ this ] order was justified in the aforementioned circumstances , and therefore the criminal proceedings in the part concerning the criminal offence under LAW ( CARDINAL ) of FAC should be terminated [ owing to the absence of evidence of a criminal in that official \u2019s actions ... ] \u201d","Another decision taken by the same investigator on DATE ordered that the criminal proceedings instituted concerning the murder of the applicants\u2019 CARDINAL relatives be discontinued in full . The decision described the circumstances of the attack of DATE as they were stated in the aforementioned decision of DATE and referred to a report on the inspection of the scene of the incident of DATE , the reports on the forensic examination of the dead bodies of PERSON and PERSON dated DATE and witness statements of PERSON , ORG , PERSON and PERSON , those of the pilots of the MI-CARDINAL helicopters , those of Colonel NORP , the commander of military unit no . DATE , and those of Lieutenant Colonel A. , the head of the headquarters of military unit [ the number of the unit is deleted ] as well as to the other decision of DATE . It then concluded :","\u201c Accordingly , on the basis of the evidence obtained during the investigation , it has been established that on DATE at TIME in the vicinity of the village of ORG ... the members of the crew of the MI-CARDINAL helicopters destroyed the [ Niva ] vehicle pursuant to an order which was justified in the circumstances and was binding on them , and therefore their actions did not constitute a criminal offence and they are not liable to criminal responsibility for the damage inflicted by their actions . The criminal case instituted on DATE under CARDINAL \u00a7 CARDINAL ( a ) and ( f ) of the NORP LAW shall be terminated ... in the absence of evidence of a crime . \u201d","In undated letters the investigating authorities informed the applicants , PERSON , ORG , PERSON and PERSON that the criminal proceedings instituted in connection with the attack of DATE and the murder of PERSON and PERSON had been suspended on DATE owing to the absence of evidence of a crime . The applicants were informed that the decision could be appealed against to the prosecutor of garrison no . CARDINAL or before a court .","By a decision of DATE the military prosecutor \u2019s office of ORG set aside the second decision of DATE ( see paragraph CARDINAL above ) , stating that the preliminary investigation had been incomplete , that the special instructions had not been complied with , and that all the measures envisaged in the law had not been taken , with the result that it was difficult to assess the actions or omissions of the public officials and the members of the crew of the MI-CARDINAL helicopters . The decision thus ordered that the investigation be resumed .","On DATE an investigator of garrison prosecutor \u2019s office no . CARDINAL took up the case .","NORP In letters of CARDINAL DATE the investigator in charge informed the second applicant \u2019s family , as well as PERSON , ORG , PERSON and PERSON , that on DATE the proceedings in connection with the death of the applicants\u2019 CARDINAL relatives had been discontinued in the absence of evidence of a crime , and that this decision could be appealed against to the prosecutor of garrison no . CARDINAL or in court . It is unclear whether the first applicant \u2019s family was informed of the decision of DATE , as there is no letter to that effect among the documents submitted by the Government . A copy of the decision of DATE was not submitted to the ORG either .","By a decision of CARDINAL DATE the military prosecutor \u2019s office of ORG quashed the decision of DATE , stating that the investigation had been incomplete , that a superior ORG","By a decision of CARDINAL DATE an investigator of the military prosecutor \u2019s office of military unit no . CARDINAL took up the case .","On DATE the investigator in charge informed the second applicant \u2019s family and the aforementioned CARDINAL men who had been attacked together with PERSON and PERSON of the decision of DATE . It is unclear whether the first applicant \u2019s family was informed of the said decision , as there is no letter to that effect among the documents submitted by the Government .","A decision of DATE taken by the investigator in charge of the military prosecutor \u2019s office of military unit no . CARDINAL ordered that the criminal proceedings in case no . DATE be terminated . The decision described the circumstances of the attack of DATE as they had been stated in the decision of DATE on complete termination of the criminal proceedings ( see paragraph CARDINAL ) and referred to the same documents as those relied on in that decision . It also referred to the witness statement of PERSON , the head of the administration of ORG at the relevant period , that of PERSON , the head of the flight safety service , and the report of a military expert of DATE ( see paragraph CARDINAL below ) and that it had been established that at the relevant period a counter - terrorist operation had been underway within the territory of the GPE region , which comprised several GPE , including GPE and GPE . The residents of the region had been notified that once approached by military vehicles or federal servicemen they were to mark themselves with a piece of white cloth so as to indicate that they were civilians and wait for the arrival of servicemen for an identity check . The decision went on to say that on DATE the applicants\u2019 CARDINAL relatives and the CARDINAL other men , who had been discovered in the vicinity of ORG by CARDINAL MI-CARDINAL helicopters under the command of Major \u201c PERSON \u201d and PERSON \u201c PERSON , had failed to comply with the aforementioned requirements and , after a warning shot , had attempted to escape in the PERSON car with the result that the MI-CARDINAL helicopters had opened fire for effect , entailing the death of PERSON and PERSON . The decision then concluded that the pilots had acted pursuant to an order which had been justified in the circumstances and had been binding on them , and therefore their actions did not constitute a criminal offence and they were not responsible for the damage caused . It thus ordered that the criminal proceedings against officers \u201c PERSON \u201d and \u201c PERSON \u201d be discontinued in the absence of evidence of a crime in their actions .","There are a number of transcripts of witness interviews among the documents submitted by the Government . In particular , PERSON , ORG , PERSON and PERSON described the attack of DATE as stated in the applicant \u2019s version of events ( see paragraphs CARDINAL ) and insisted that they had had no firearms and that it had been obvious that they had been civilians cutting grass and had posed no danger . PERSON and PERSON also stated that they had never received any information concerning the rules of conduct of civilians in the zone of a counter - terrorist operation , that it had never been explained how a civilian should mark himself , as no special operations had been carried out in FAC . ORG submitted that the head of the administration of ORG and officers of ORG had explained to the local residents that they should avoid the military personnel , not approach and not provoke them . He had heard from his relatives that when federal servicemen opened fire it was necessary to mark oneself as a civilian with a piece of white cloth and wait for the arrival of servicemen for an identity check , but during the attack of DATE he had not performed those actions , as they had all been scared and attempted to escape , fearing for their lives .","Mr F. , the head of the administration of ORG at the material time , stated that PERSON and PERSON had never been involved in illegal activities , and no criminal proceedings had ever been brought against them . He also submitted that on DATE he had visited the scene of the incident with the FAC car , together with local law - enforcement officers . According to PERSON , during the inspection of the scene of the incident pieces of shrapnel and craters from shells and bullets had been found . PERSON claimed that there had been no firearms or grenades at the scene of the incident , that it had not been attended by servicemen or any persons before the arrival of the law - enforcement officers and that there had been no traces of anyone \u2019s prior presence at the scene . PERSON also stated as follows :","\u201c Since DATE a counter - terrorist operation has been underway within the territory of GPE . From that time onwards the federal forces have repeatedly conducted special operations in the village of ORG , during which representatives of official bodies or commanding officers have never explained the rules of conduct in a situation when representatives of the federal forces approach . I , myself , have on several occasions told the residents of the village that if military vehicles , aircraft or armed soldiers appear they should move away to a safe distance .","During DATE it was never explained to me that on the approach of aircraft or helicopters it was necessary for people to mark themselves as civilians \u2013 with a white cloth or in any other way \u2013 to make the servicemen understand that they are civilians . Accordingly , I never gave such explanations to the residents of the village .","The officials of ORG did not give [ any such explanations ] either , since there were no military actions on the territory of GPE ... \u201d","According to a statement of a superior officer of the air force obtained on DATE , in case of necessity the pilot in command of a helicopter might be authorised by the command centre to take , of his own motion , a decision to open fire .","Officer PERSON , whose military rank and position are unknown as his personal details have been deleted from the transcript , stated during the questioning of DATE that :","\u201c ... the pilots reported that they had destroyed a Niva vehicle with illegal fighters , who had been firing at the helicopters . The pilots did not request me to give them authorisation to open fire . I suppose that the pilot in command , of his own motion , took a decision to destroy the GPE car , having assessed the battle conditions . After the rescue operation had been completed , the area in the vicinity of the crash was inspected . As a result , a destroyed FAC vehicle was found and several hand - grenades , spent cartridges from light machine - guns and a bloodstained ammunition belt were found nearby . \u201d","Lieutenant Colonel A. , whose position is unknown as his personal details have been deleted from the transcript , stated during questioning on DATE that it was he who , on DATE , had assigned a mission to a group consisting of the MI-CARDINAL helicopter , which had then been hit by the rebel fighters , and CARDINAL MI-CARDINAL helicopters , which had been entrusted with the task of \u201c covering \u201d the MI-CARDINAL helicopter . He stated that this group had not been involved in an attack on the FAC car and that he had no information regarding the attack .","According to a statement of DATE by PERSON , an investigator from ORG , he had been summoned to the scene of the incident with the FAC car on DATE . When he arrived , the destroyed vehicle and the dead bodies had already been removed from the site . Mr I. had inspected the site and found fragments of shrapnel , pieces of broken car headlights and bloodstains . According to him , he had found no grenades , spent cartridges from light machine - guns or an ammunition belt .","Mr B. , who at the material time had been a driver for ORG and had attended the scene of the incident as an attesting witness on DATE , stated during questioning on DATE that he had seen a severely damaged Niva car , CARDINAL dead bodies lying QUANTITY away and a lot of craters and pieces of shrapnel . PERSON submitted that he had seen an ORG hand grenade lying between the vehicle and one of the corpses . According to him , he had not seen any firearms , spent cartridges from light machine - guns or ammunition belts at the scene of the incident ; near the corpses PERSON had only seen scythes .","The pilots of the CARDINAL Mi-CARDINAL helicopters who had attacked the FAC car on DATE were questioned on CARDINAL and DATE respectively . The real names , surnames and personal details of the pilots have been deleted from the transcripts of their interviews . The pilots in command of the helicopters are indicated with the nicknames \u201c PERSON \u201d and \u201c PERSON and an operating pilot who was working in tandem with \u201c PERSON \u201d is indicated as \u201c PERSON \u201d .","Witness \u201c PERSON \u201d submitted that he had participated in a rescue operation of DATE as pilot in command of the lead helicopter of a pair of MI-CARDINAL helicopters . The mission was assigned to them by the commander of military unit no . DATE , who received orders from the command centre of the main federal military base in the village of GPE , GPE . According to \u201c PERSON \u201d , at TIME he noticed a white FAC car and CARDINAL [ rather than CARDINAL ] men standing nearby , all of whom had automatic firearms . He observed the people without using any optical devices from the distance of QUANTITY and altitude of QUANTITY , but insisted that he clearly saw the people had firearms , and that his operating pilot , \u201c NORP \u201d , had seen them through a target control system of tenfold magnification . He reported this to the command centre in GPE and was told that the identity of those CARDINAL persons would be established . The pilots continued observing , the FAC vehicle remained still and the CARDINAL men were moving around it . TIME \u201c PERSON \u201d received an order from the command centre in GPE to destroy the car . According to him , he did not know the name of the official who had given the order . \u201c PERSON \u201d then sought and obtained confirmation of that order . He fired a warning shot at a spot situated QUANTITY away from the car , so as to make the people stand still and wait for the arrival of federal servicemen for an identity check . After the shot , the people got into the car and drove off in the direction of ORG . \u201c PERSON \u201d reported this to the command centre in GPE and received an order to destroy the vehicle . He then fired a warning burst from an aircraft machine - gun , but the car carried on moving . \u201c PERSON \u201d fired another burst and hit the PERSON vehicle , which stopped but nobody got out of it . \u201c PERSON \u201d then reported the incident to his superiors and left for the place of his station , as he was running out of fuel . \u201c PERSON \u201d insisted that he did not know the names or military ranks of officials who had given him orders and had had no doubt that the CARDINAL men belonged to illegal armed groups , as they had been armed . He submitted that \u201c the people in the [ GPE ] car were supposed to stop after a warning shot ; this was known to all the civilian population in the area of the military actions \u201d .","Witness \u201c PERSON stated that he had participated in a rescue operation on DATE as wingman of the pair of MI-CARDINAL helicopters . He confirmed that he had seen from a distance of QUANTITY a white GPE car and CARDINAL [ rather than CARDINAL ] armed men , who after \u201c PERSON \u2019s \u201d warning shot had got into the car and started driving away , although \u201c everybody knew that a car must stop at a shot or even a helicopter \u2019s flight \u201d . \u201c PERSON \u201d submitted that he had not been authorised to communicate with the command centre but had heard \u201c PERSON \u2019s \u201d communications and confirmed that \u201c PERSON \u201d had reported about the car and the people to the command centre and twice received an order to destroy the vehicle . After the second order from the command centre \u201c PERSON \u201d had given \u201c PERSON \u201d a command to fire at the vehicle , and the latter had strafed the vehicle with a machine - gun of QUANTITY calibre , whilst \u201c PERSON \u201d had fired at it with an automatic cannon of CARDINAL PERSON calibre . The car had stopped but nobody had got out . He then left for the place of his location , as he was running out of fuel . \u201c Petrov \u201d stated that he did not know the names or military ranks of the officials who had communicated with \u201c PERSON \u201d on DATE .","Witness \u201c PERSON \u201d stated that on DATE he had been an operating pilot on the MI-CARDINAL helicopter under the command of \u201c PERSON , and that he had observed a PERSON car and CARDINAL [ rather than CARDINAL ] men with automatic firearms standing nearby through a target control system of tenfold magnification , as he had reported to \u201c PERSON \u201d . He then submitted the following :","\u201c I clearly heard Major [ \u201c PERSON \u201d ] report about the car to [ deleted ] and to [ deleted ] . TIME an order followed from [ deleted ] ( PERSON ) to fire a warning shot . \u201c PERSON \u201d fired a warning shot from an automatic cannon in front of the car . The people got into the vehicle and drove off in the direction of the village of ORG and did not stop . All local inhabitants know that it is necessary to stop . [ \u201c PERSON \u201d ] reported to [ deleted ] that the car had not stopped . An order to fire another warning shot followed . [ \u201c PERSON \u201d ] made another circle and fired in front of the car with the automatic cannon , but the car did not stop . [ \u201c PERSON \u201d ] reported to [ deleted ] about the situation with the car . An order followed to open fire for effect . [ \u201c PERSON \u201d ] opened fire for effect , and the car stopped and I saw CARDINAL persons get out and run into the forest . [ \u201c PERSON \u201d ] reported to [ the command centre ] that the car had stopped and thereafter he transmitted to [ deleted ] the information on the car \u2019s location to enable an identity check of the people in the car . \u201d","During questioning on DATE Colonel NORP submitted that at the material time he had been the commander of the [ deleted ] separate helicopter squadron and that on DATE he had heard communications between the MI-CARDINAL helicopters and the command centre . He confirmed that the pilots had reported about the FAC vehicle and armed men nearby , that they had been ordered to fire a warning shot , that the pilots had reported that the men had got into the car and attempted to escape and that the pilots had been ordered to destroy the vehicle .","Officer PERSON , a military expert , stated during an interview of DATE that the actions of the pilots of the MI-CARDINAL helicopters , who had attacked the group of people on DATE , had fully complied with relevant military regulations and the provisions of international law and had been justified in the circumstances . The expert admitted that the pilots could have mistaken agricultural equipment , in particular scythes , for firearms , but noted that the pilots had been absolutely positive that the men whom they had noticed had been armed and that those men had not marked themselves as civilians and had attempted to escape .","A report on the inspection of the scene of the incident of DATE attested the presence of a large number of craters and metallic fragments of irregular shape as well as pieces of broken glass from backlights and a splash shield of a car and a large brown stain resembling blood . A piece of a broken scythe was also found at the scene of the incident .","Reports on the examination of the corpses of PERSON and PERSON on DATE attested the presence of a number of bleeding wounds of irregular shape , going from top downwards .","Reports on the medical forensic examination of the corpses of PERSON and PERSON on DATE , based on the aforementioned CARDINAL reports of DATE , confirmed that the corpses had borne bullet wounds , that the death of the CARDINAL men had been caused by those wounds and that the location of the wounds indicated that they could have been inflicted in the circumstances described in the materials of the criminal case file .","An expert commission made up of CARDINAL military experts , PERSON ( see paragraph DATE above ) and PERSON , stated as follows in a report of DATE :","\u201c According to the rules in force in the territory of GPE and neighbouring regions , a driver of any transport vehicle is obliged , at the sight of a military helicopter , to stop the vehicle , get out and mark himself . Therefore the crew had the right to destroy the vehicle , which was moving away from the area of an attack without marking itself with a prearranged signal ( a white flag , a green signal flare ) . \u201d","The report thus concluded that the pilots had been justified in their actions .","The materials submitted by the Government reveal that the investigating authorities also sent a number of queries and requests to various ORG bodies in the context of the investigation . In particular , on DATE the military prosecutor \u2019s office of military unit no . DATE sent a request to the military prosecutor of the Kursk garrison to establish whether the pilots who had attacked the Niva car had coordinated their actions with their superiors , to establish the identity of those superiors , and to establish who had taken the decision to attack the FAC car . It is unclear whether this request has ever been complied with , as there are no corresponding documents among the materials submitted by the Government .","ORG . The Government also adduced copies of domestic court decisions taken in unrelated sets of civil proceedings . These included a first - instance judgment and appeal decision awarding compensation for property damage inflicted by servicemen in ORG ; a first - instance judgment and appeal decision awarding damages to the first applicant in GPE and GPE v. GPE ( nos . CARDINAL and QUANTITY , judgment of DATE ) in connection with the death of his relatives in GPE ; and a first - instance judgment and appeal decision refusing compensation for property damage inflicted by servicemen in ORG .","Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW ( CCP ) .","Article CARDINAL of the ORG provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a district court , which is empowered to examine the lawfulness and grounds of the impugned decisions .","Article CARDINAL of the ORG enshrines the rule that information from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private lives of participants in criminal proceedings without their permission ."],"violated_articles":["2"],"violated_paragraphs":["2-1"],"violated_bulletpoints":[],"non_violated_articles":["38"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58372","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF FREEDOM AND DEMOCRACY PARTY (\u00d6ZDEP) v. TURKEY","importance":1,"conclusion":"Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Luzius Wildhaber;Paul Mahoney","text":["The Freedom and Democracy Party ( \u00d6ZDEP ) was founded on DATE . Its constitution was lodged with ORG DATE . Its programme included the following passages .","\u201c ... Following the war of \u2018 Liberation\u2019 waged jointly by NORP , NORP and other national minorities , the Sultanate was abolished in GPE and the Republic proclaimed .","The sole aim of the LOC has been to establish national sovereignty . Efforts to unite GPE with LOC have come to nothing . GPE has not succeeded in lifting itself out of mediocrity .","From DATE of the Republic , certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats .","In order to preserve that monopoly , the policy of those in power has been to refuse to recognise the existence of the NORP people and to ignore its most legitimate rights .","The dominant \u2018 Turkish\u2019 philosophy has been maintained up to the present day , overriding the most natural rights and claims of the NORP people , by means of militaristic and chauvinistic propaganda and a policy of exile and destruction . State policy , based on a capitalist system designed to oppress minorities \u2013 particularly NORP minorities , but even NORP ones \u2013 has been pursued in the name of modernisation and westernisation .","Owing to this policy , which colours the political , economic and social aspects of GPE \u2019s territorial integrity , there is no possibility of this monopoly of ORG power being brought to an end . That power runs counter to the interests of the vast majority of the population .","It uses force to impose the present situation on the people in order to preserve its economic interests . Thus , it blocks the way to any democratic process aimed at protecting the interests of NORP and NORP workers .","ORG proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self - determination .","ORG uses political , democratic and ideological means to combat all fascist , fundamentalist , chauvinistic and racist movements or organisations hindering solidarity , unity and brotherhood between peoples .","Both in domestic and foreign policy , the aim of ORG is to protect the interests of our peoples and those of all workers . \u00d6ZDEP is the guarantor of the cultural , occupational , economic and political values of the various national or religious minorities and of every socio - professional category . It seeks recognition of the right to form a political party .","Our ORG will guarantee the religious and national minorities the right to worship as they please , to practise their religion freely , to freedom of thought and to respect for their customs , cultures and languages . Every individual will be entitled to use the media , especially radio and television .","ORG has proposals on how to determine and define the prerequisites for establishing a social order encompassing the NORP and NORP peoples .","\u00d6ZDEP regards our peoples as the sole owners of the country \u2019s wealth , natural wealth and mineral resources .","\u00d6ZDEP supports the just and legitimate struggle of the peoples for independence and freedom . It stands by them in this struggle .","Our ORG proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage . This assembly will represent the interests of the NORP people , the NORP people and any other minority .","This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples\u2019 national sovereignty .","The media will be the moving force for the consolidation of fraternity and friendship between peoples . They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population . They will be responsible for ensuring that the political , economic , social and cultural rights of the peoples are recognised .","There will be no government interference in religious affairs , which will be placed in the hands of the relevant institutions .","In order to preserve the right to self - determination of oppressed peoples , our ORG will outlaw any form of cultural , military , political or economic aggression .","ORG is campaigning for the voluntary unification of the NORP and NORP peoples , who participated in the foundation of the country .","ORG considers that there can be democracy only if the NORP problem is solved . This problem concerns every NORP and GPE who supports freedom and democracy .","ORG favours a peaceful and democratic solution to the NORP problem , subject to the strict application of international instruments such as LAW , ORG .","ORG will fully respect the NORP people \u2019s right to self - determination so that a democratic solution based on the self - determination and equality of peoples can be found .","Currently , our legislation and the manner in which the legal system operates are inherently undemocratic , contrary to fundamental human rights and freedoms and based on class interests . They deny the NORP people an identity and forbid any form of workers\u2019 organisation or association . They are racist and retrograde .","An order will be established permitting the NORP and NORP peoples and the minorities to develop and enjoy their particular cultures freely . Each people will be entitled to education in its mother tongue , that being an essential prerequisite for the development of a people and a nation .","Everyone will have the right to basic education in his mother tongue . The education system from primary school to university will be based on education in one \u2019s mother tongue . A person \u2019s mother tongue shall be given precedence in court proceedings ... \u201d","On DATE , ORG at ORG ( \u201c ORG Counsel \u201d ) applied to ORG to have \u00d6ZDEP dissolved on the grounds that it had infringed the principles of LAW and the PERSON on the regulation of political parties . He considered that the content and aims set out in the party \u2019s programme sought to undermine the territorial integrity and secular nature of the ORG and the unity of the nation .","On DATE the President of ORG sent ORG application to the Chairman of ORG inviting him to lodge his preliminary observations in defence .","On DATE ORG \u2019s lawyers filed preliminary written observations and requested a hearing . They argued , inter alia , that the PERSON on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by LAW . They also maintained that dissolving the party would infringe the provisions of international instruments such as LAW , LAW , LAW and GPE for LOC . They submitted that it was unacceptable to force a political party , on pain of being dissolved , to promote an ideology which conformed to LAW .","On DATE , while the ORG proceedings were still pending , a meeting of the founding members of \u00d6ZDEP resolved to dissolve the party .","On DATE ORG lodged his submissions on the merits of the case with ORG . Since \u00d6ZDEP had gone into voluntary dissolution , it did not file any submissions on the merits .","On DATE ORG made an order dissolving ORG , notably on the ground that its programme was apt to undermine the territorial integrity of the ORG and the unity of the nation and violated both the LAW and sections CARDINAL(a ) and CARDINAL(a ) and ( b ) of the LAW on the regulation of political parties . The judgment was served on ORG , the Speaker of ORG and ORG . ORG judgment was published in ORG on DATE .","ORG held , firstly , that , pursuant to section CARDINAL of the PERSON on the regulation of political parties , ORG \u2019s resolution to go into voluntary dissolution did not prevent that court from ruling on the merits of the case as it had been made after the commencement of the proceedings before it .","As to the merits , ORG began by reiterating the constitutional principles that all persons living on NORP territory , whatever their ethnic origin , formed a whole united by their common culture . The sum of the persons who made up GPE was called the \u201c NORP nation \u201d . The different ethnic groups making up the \u201c NORP nation \u201d were not divided into a majority and minorities . The court reiterated that , under LAW , no political or legal distinction based on ethnic or racial origin could be made between citizens : all NORP nationals , without distinction , could avail themselves of all civil , political and economic rights .","With particular reference to NORP citizens of NORP origin , ORG held that in every region of GPE such persons enjoyed the same rights as other NORP citizens . That did not mean that the LAW denied the existence of a NORP identity , since citizens of NORP origin were not forbidden to express their NORP identity . The NORP language could be used on all private premises , in workplaces , in the press and in works of art and literature .","ORG reiterated the principle that everyone was bound to observe the provisions of the LAW even if they did not agree with them . LAW did not preclude the celebration of difference but forbade propaganda based on racial difference and aimed at destroying the constitutional order . It pointed out that by virtue of LAW having a separate language or ethnic origin was not by itself enough for a group to qualify as a minority .","With regard to the content of ORG \u2019s programme , ORG observed that it was based on the assumption that there was a separate NORP people in GPE with its own culture and language . The NORP were portrayed in the programme as an oppressed people whose democratic rights were being completely ignored . According to ORG , ORG called for a right to self - determination for the NORP and supported their right to wage a \u201c war of independence \u201d . Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection .","In relation to the principle of secularism , ORG noted that ORG \u2019s programme contained a proposal for the abolition of ORG of the government on the ground that religious affairs should be under the control of the religious institutions themselves . After reiterating what was meant by the principle of secularism , the court said that advocating the abolition of the government ORG amounted to undermining the principle of secularism . It concluded that that aspect of ORG \u2019s programme was contrary to section CARDINAL of the PERSON on the regulation of political parties .","ORG pointed to the fact that GPE for a LOC condemned racism , ethnic hatred and terrorism and that the GPE LAW guaranteed the inviolability of national frontiers and territorial integrity . It concluded that ORG \u2019s activities were subject , inter alia , to the restrictions referred to in paragraph CARDINAL of LAW and to LAW .","The relevant provisions of the LAW read as follows :","\u201c GPE is a democratic , secular and social ORG based on the rule of law , respectful of human rights in a spirit of social peace , national solidarity and justice , adhering to the nationalism of PERSON and resting on the fundamental principles set out in the Preamble . \u201d","\u201c The State of GPE constitutes with its territory and nation , an indivisible whole . The official language is NORP . \u201d","\u201c Sovereignty resides unconditionally and unreservedly in the nation .","...","Sovereign power shall not under any circumstances be transferred to an individual , a group or a social class ... \u201d","\u201c All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds . \u201d","\u201c None of the rights and freedoms referred to in the LAW shall be exercised with a view to undermining the territorial integrity of the ORG and the unity of the nation , jeopardising the existence of ORG , abolishing fundamental rights and freedoms , placing the control of the ORG in the hands of a single individual or group , ensuring the domination of CARDINAL social class over other social classes , introducing discrimination on the grounds of language , race , religion or membership of a religious sect , or establishing by any other means a political system based on any of the above concepts and opinions . \u201d","\u201c Everyone linked to ORG by nationality shall be NORP . \u201d","\u201c ORG shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ...","Political parties shall be an indispensable part of the democratic political system .","Political parties may be formed without prior permission and shall carry on their activities in accordance with the LAW and the law .","The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation , human rights , national sovereignty or the principles of a democratic secular Republic .","No political party shall be formed which aims to advocate or establish the domination of CARDINAL social class or group , or any form of dictatorship ... \u201d","\u201c Political parties shall not engage in activities other than those referred to in their constitutions and programmes , nor shall they disregard the restrictions laid down by LAW , on pain of permanent dissolution .","...","The decisions and internal running of political parties shall not be contrary to democratic principles .","...","Immediately a political party is formed , ORG shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the LAW and the laws of the land . He shall also monitor its activities .","Political parties may be dissolved by ORG , on application by ORG .","Founding members and managers , at whatever level , of political parties which have been permanently dissolved may not become founding members , managers or financial controllers of any new political party , nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ... \u201d","The relevant provisions of PERSON no . PERSON on the regulation of political parties read as follows :","\u201c Political parties","( a ) shall not aim or strive to or incite third parties to","change : the NORP form of ORG ; the ... provisions concerning the absolute integrity of ORG territory , the absolute unity of its nation , its official language , its flag or its national anthem ; ... the principle that sovereignty resides unconditionally and unreservedly in the NORP nation ; ... the provision that sovereign power can not be transferred to an individual , a group or a social class ... ;","jeopardise the existence of ORG , abolish fundamental rights and freedoms , introduce discrimination on grounds of language , race , colour , religion or membership of a religious sect , or establish , by any means , a system of government based on any such notion or concept .","...","( c ) shall not aim to defend or establish the domination of CARDINAL social class over the other social classes or the domination of a community or the setting up of any form of dictatorship ; they shall not carry on activities in pursuit of such aims ... \u201d","\u201c Political parties shall not aim to change the principle of the unitary ORG on which GPE is founded , nor carry on activities in pursuit of such an aim . \u201d","\u201c Political parties shall not","( a ) assert that there exist within the territory of GPE any national minorities based on differences relating to national or religious culture , membership of a religious sect , race or language ; or","( b ) aim to destroy national unity by proposing , on the pretext of protecting , promoting or disseminating a non - NORP language or culture , to create minorities on the territory of GPE or to engage in similar activities ... \u201d","\u201c Political parties shall not have an aim that runs counter to LAW , which provides that ORG , which is bound to carry out the duties assigned to it in conformity with the principle of secularism ... , shall be accountable to central Government . \u201d","\u201c The constitution , programme and activities of political parties shall not contravene the LAW or this PERSON . \u201d","\u201c Where a political party has been definitively dissolved , its founding members , its chairman , the members of its executive committee and central office , the members of its disciplinary and administrative organs at all levels and the members of political groups in ORG of GPE shall , if still members when the party was dissolved , be disqualified from acting as founders , managers or financial controllers of any other political party . Any members whose actions were responsible for the political party \u2019s being dissolved shall be disqualified for DATE from joining a political party or standing for election to ORG .","No political party shall be formed with a majority of members from a political party that has been dissolved . \u201d","\u201c No political party shall be formed with the name \u2018 ORG , \u2018 ORG , \u2018 fascist\u2019 , \u2018 theocratic\u2019 or \u2018 national socialist\u2019 , the name of a religion , language , race , sect or region , or a name including any of the above words or similar ones . \u201d","\u201c The Constitutional Court shall dissolve a political party where","( a ) the party \u2019s programme or constitution ... is contrary to the provisions of LAW of this PERSON ; or","( b ) its membership , central office or executive committee ... take a decision , issue a circular or make a statement ... contrary to the provisions of LAW of this PERSON or the Chairman , Vice - Chairman or General Secretary makes any written or oral statement contrary to those provisions ... \u201d","LAW , referred to in LAW , includes in particular sections LANGUAGE ) and PERSON ) , which are reproduced above .","\u201c All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the ORG . \u201d","\u201c A resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before ORG continuing or deprive any dissolution order that is made of its legal effects . \u201d"],"violated_articles":["11"],"violated_paragraphs":["11-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80484","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2007,"docname":"CASE OF STEFAN ILIEV v. BULGARIA","importance":3,"conclusion":"No substantive violation of Art. 3;Violation of Art. 3 on account of the lack of an effective investigation into the applicant's complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["The applicant was DATE at the time of the events and had previously suffered from tuberculosis on CARDINAL occasions .","On DATE the applicant visited a caf\u00e9 - bar where he drank and became intoxicated . On his way home , at TIME , he passed by the building of the NORP national television ( \u201c ORG \u201d ) , in front of which there was a demonstration . The applicant was carrying a beer bottle , which he either dropped or threw against the building of the ORG . He then went to a nearby caf\u00e9 .","Two police officers , who were providing security in front of the ORG , approached the applicant in the caf\u00e9 . When they saw that he was intoxicated they led him off to the security guards ' duty room in the ORG .","NORP In response to the applicant 's request to be informed why he was being detained he was told that it was for disturbing the peace and for throwing objects at the building of the ORG in an attempt to break its windows .","The applicant was kept in the security guards ' duty room of the ORG until TIME He was then taken to ORG ( LOC \u0440\u0430\u0439\u043e\u043d\u043d\u043e \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u043d\u0430 \u041c\u0412\u0420 ) for questioning , but , in view of his intoxicated state , was transferred to the Sobering - up ORG . The applicant arrived there at TIME and remained TIME .","NORP The applicant was discharged at TIME on DATE , DATE , into the custody of the police and was taken to ORG the First District Police Station for questioning .","At TIME on DATE the applicant was given a written reprimand by the police to refrain from disturbing the peace , to drink with caution and not to resist inspections by the police . The applicant refused to be served with the written reprimand .","The applicant contended , which the Government did not challenge , that he was released from the police station sometime in the afternoon on DATE .","The applicant submitted that when he was detained by the QUANTITY police officers in front of the building of the ORG he may have showed some resistance as he believed he was being wrongly detained . He contended , however , which the Government did not challenge , that while he was being led to the security guards ' duty room of the ORG the police officers repeatedly hit him with a truncheon on his hands , kicked him in his ankles and punched him in the back and in the area of his kidneys . The applicant maintained that his injuries were not treated nor tended to by a doctor while he was in detention .","In their subsequent statements before ORG , the police officers stated that the applicant was somewhat aggressive when they tried to detain him , but that they did not use any special measures to subdue him .","After being released on DATE the applicant was examined by a doctor and a special medical report for use in legal proceedings was prepared , the relevant part of which stated the following .","\u201c Preliminary data : The [ patient ] indicates that on CARDINAL at TIME he was beaten by uniformed police officers .","The examination established : On the back of the right hand in the area of the [ bracelet ] joint it is visible that a linear contusion of the skin exists of reddish - dark colour with a size of QUANTITY by QUANTITY . On the back of the wrist of the right hand another contusion can be seen with a size of QUANTITY by QUANTITY . On the back of the left hand in the area of the palm bone of the thumb there is a contusion and abrasion resulting from almost parallel scratches of reddish - dark colour protruding above the skin around them with a size of QUANTITY by QUANTITY .","CONCLUSION","The examination of [ the patient ] established : contusions and abrasions on the skin of both hands .","These injuries resulted from blows by or against solid blunt objects or blunt - cornered objects , as well as from the tangential affects of such objects and [ considering ] their morphological characteristics [ they ] reasonably correspond and could have been sustained in the manner and at the time indicated by [ the patient ] .","They caused him pain and suffering . \u201d","In DATE the applicant received treatment to ailments in his ankles and wrists .","On DATE the applicant complained to ORG regarding the beating by the police officers on DATE and of being detained . On an unspecified date , he was informed that his complaint was being forwarded to the GPE 's ORG .","On DATE the Sofia Regional Military Prosecutor 's Office refused to open a preliminary investigation because of lack of evidence of an offence . It based its decision on the applicant 's complaint to the authorities and on statements from the police officers who arrested him and the officer on duty at the sobering - up centre . ORG considered the applicant 's assertions to be unfounded and unsupported by any facts other than his complaints . The applicant appealed against the decision of ORG on an unspecified date .","NORP By decision of DATE ORG upheld the decision of the Sofia Regional Military Prosecutor 's Office . It found that the facts of the case did not warrant the opening of a preliminary investigation . The decision of DATE stated , inter alia , the following :","\u201c From the materials [ contained ] in the file it [ can be ] ascertained that [ the complaint ] relates to the forced detention in a sobering - up centre of the applicant [ following ] a disturbance of public order [ while ] in an intoxicated state . The inquiries performed do not indicate that any unlawful actions [ were performed ] by the police . The collected data show that there was in fact a disturbance of public order \u2013 breaking of bottles , throwing objects at the building of the [ NORP national ] television , etc . In such case quite rightly [ the Sofia Regional Military Prosecutor 's Office ] refused to open a preliminary investigation . \u201d","It is unclear whether a copy of the decision of ORG was ever sent to the applicant .","On DATE the applicant filed a complaint with ORG claiming that he had not received a response to his previous complaints .","On an undetermined date a prosecutor from ORG responded , in the form of a resolution , which stated , inter alia , the following :","\u201c On DATE a complaint was filed by [ the applicant ] , who was not satisfied with the decision of the prosecutors from ORG and ORG .","I reject the complaint of [ the applicant ] because ORG has already ruled on the matter and there is no necessity for it to change its position [ expressed ] in the decision of DATE . \u201d","The Government contended that a copy of the above resolution was sent to the applicant on DATE . The applicant maintained , however , that he never received it and that he only became aware of the decisions of ORG not to open a preliminary investigation on DATE . A note to that effect was inscribed in the applicant 's handwriting on the copies of the decisions he provided to the ORG .","Section CARDINAL ( CARDINAL ) of LAW , as in force at the relevant time , provided , as relevant :","\u201c ... [ P]olice [ officers ] may use ... force ... when performing their duties only if they [ have no alternative course of action ] in cases of :","resistance or refusal [ by a person ] to obey a lawful order ;","arrest of an offender who does not obey or resists a police [ officer ] ;","...","attack against citizens or police [ officers ] ; ... \u201d","Section CARDINAL ( CARDINAL ) provided that the use of force had to be proportionate to , in particular , the specific circumstances and the personality of the offender .","Section CARDINAL(CARDINAL ) imposed upon police officers the duty to \u201c protect , if possible , the health ... of persons against whom [ force was being used ] \u201d .","Articles CARDINAL , CARDINAL and CARDINAL of the Criminal Code make it an offence to cause a light , intermediate or severe bodily injury to another individual .","Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of LAW provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties , the offence is an aggravated one . This offence is a publicly prosecutable one ( LAW ) .","Under LAW ( DATE ) , as in force at the relevant time , preliminary investigations for publicly prosecutable offences could be opened only by a decision of a prosecutor or an investigator ( Article CARDINAL ) .","The prosecutor or the investigator must open a preliminary investigation whenever he or she receives information , supported by sufficient evidence , that an offence might have been committed ( Articles CARDINAL and CARDINAL of LAW ) .","During the relevant period , LAW provided that if the information provided to the authorities was not sufficiently supported by evidence , the latter had to conduct a preliminary inquiry ( verification ) in order to determine whether the opening of a preliminary investigation was warranted ( LAW ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-71673","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF VANYAN v. RUSSIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 (conviction);Violation of Art. 6-1 and 6-3-c;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested and taken to the GPE district police station in GPE , where he was searched and found to be in possession of a sachet of heroin . In a decision of CARDINAL DATE the head of the GPE district police department held that the applicant had committed an act of petty hooliganism and ordered him to pay an administrative fine . He was released on DATE , according to his submissions , and on DATE , according to the Government . On DATE criminal proceedings were brought against the applicant on suspicion of procuring and storing drugs . The investigation resulted in the indictment of the applicant for procurement , storage and sale of drugs , punishable under LAW of LAW .","On DATE the ORG of GPE convicted the applicant and ORG under LAW of LAW of having unlawfully procured , stored with a view to their sale and sold drugs in \u201c particularly large \u201d quantities . The applicant was sentenced to DATE imprisonment and a confiscation order was made . Further to a medical report , he was ordered to undergo compulsory psychiatric treatment for drug addiction .","At the hearing before ORG the applicant stated that on DATE he had telephoned ORG . He asked ORG to obtain drugs for him . ORG said that he would try to do so and they agreed that the applicant would go to ORG \u2019s flat . Shortly afterwards , OZ called the applicant and asked him to buy heroin for her . She complained that she badly needed drugs as she was suffering from withdrawal symptoms . Frightened that she might commit suicide , the applicant agreed and arranged to meet her near the block of flats where ORG lived . They met TIME . He received MONEY ( RUR ) from CARDINAL and went to ORG \u2019s flat , where ORG sold him CARDINAL sachet of heroin at a cost of RUR CARDINAL . Since the amount of heroin bought from ORG was insufficient even for his own needs , he decided not to share it with ORG . The applicant further submitted to the court that he had subsequently given CARDINAL a soporific , telling her that the narcotic was of bad quality and that he would repay her money later . As he left , he saw people approaching who were , as he subsequently learned , police officers . He escaped from them , throwing the drugs away . TIME he returned and found the drugs . DATE , with the drugs still in his possession , he went to work , where he was arrested by the police . They found the drugs in his possession and seized them .","NORP The applicant \u2019s codefendant ORG also submitted at the hearing before ORG that he had sold the applicant CARDINAL sachet of heroin for RUR CARDINAL .","ORG observed that the applicant \u2019s testimony in court differed from that which he had consistently given throughout the pre - trial investigation , when he had pleaded guilty to buying CARDINAL sachets of heroin from GPE , CARDINAL for CARDINAL and the other for himself , for RUR CARDINAL , of which ORG CARDINAL had been received from CARDINAL . He also admitted that he had repeatedly bought drugs from ORG . Similarly , ORG stated throughout the pretrial investigation that he had sold CARDINAL sachets of heroin to the applicant for RUR CARDINAL .","ORG heard EF and PERSON , police officers from the criminal investigation department of the GPE district police of GPE , who submitted that the police had information that the applicant was involved in selling drugs . CARDINAL , who knew the applicant and could obtain drugs from him , was selected to verify that information . She agreed to take part in a \u201c test purchase \u201d of drugs , to be organised by the criminal investigation department . CARDINAL was given RUR CARDINAL in cash for that purpose . She was searched and no narcotics were found on her before her meeting with the applicant . She then made an appointment with the applicant . CARDINAL was placed under permanent surveillance , in the course of which ORG and ORG saw the applicant and CARDINAL meet , enter the block of flats in which ORG lived and leave the building some time later . CARDINAL gave a previouslyagreed sign indicating that she had purchased drugs from the applicant . The police officers tried to apprehend the applicant but he escaped . CARDINAL was brought to a police station where , in the presence of witnesses , she handed over a sachet of heroin which she claimed had been sold to her by the applicant , who had procured it from ORG . On DATE , the applicant was brought to the GPE district police station , where he was searched and found to be in possession of a sachet of heroin .","Witness OZ explained to ORG that she had voluntarily assisted the police in exposing drug trafficking by the applicant . Her evidence was similar to that of police officers PERSON and ORG .","According to expert reports , the substance contained in the sachet handed to the police by CARDINAL was heroin , weighing QUANTITY grams , and the substance contained in the sachet found by the police in the applicant \u2019s possession , in the circumstances described above , was also heroin , weighing QUANTITY .","ORG examined written evidence and statements by other witnesses , including a witness who had seen the applicant with a girl near the block of flats where ORG lived at the time of events in question .","ORG held that statements by the applicant and ORG during the pre - trial investigation were corroborated by witnesses\u2019 testimony , expert opinions and written evidence in the case . It found that all the evidence in the case had been obtained in accordance with the law and that the applicant \u2019s defence rights , including the right to legal assistance , had been properly secured by the investigating authority . It concluded that on DATE the applicant had procured CARDINAL sachets of heroin from ORG , had sold CARDINAL of them to ORG and had kept the other with a view to its sale .","The applicant appealed against ORG judgment of DATE , complaining of violations of the criminal procedural law at the pre - trial investigation stage , including a violation of his defence rights . He also pointed out the lack of evidence of his guilt in the sale of drugs and asked that his actions be re - classified as the illicit procurement and storage of drugs without intent to sell , punishable under LAW . On CARDINAL DATE ORG upheld the findings of ORG and dismissed the appeal . It found that the applicant \u2019s guilt had been fully proven by his own statements and the other evidence in the case and that there had been no substantial violations of the criminal procedural law during the pre - trial investigation or at the trial which would require the quashing of the judgment .","On DATE the Deputy President of ORG of GPE lodged an application with the ORG of ORG to review the case in supervisory proceedings ( \u043f\u0440\u043e\u0442\u0435\u0441\u0442 ) . The grounds for the request were that the applicant \u2019s actions should have been classified as the illicit procurement and storage of drugs without intent to sell , punishable under LAW . The application called for the judgment of DATE and the appeal decision of CARDINAL DATE to be amended so that the applicant would be convicted under LAW , sentenced to CARDINAL years\u2019 imprisonment and released from that sentence pursuant to the relevant amnesty law .","On DATE , at the request of the Deputy President of ORG , the ORG of ORG , composed of CARDINAL judges , reviewed the case under the supervisory review procedure ( \u043f\u0435\u0440\u0435\u0441\u043c\u043e\u0442\u0440 \u0432 \u043f\u043e\u0440\u044f\u0434\u043a\u0435 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 ) . The applicant and his counsel were not informed of the application for supervisory review or the hearing before the ORG of ORG . They did not attend the hearing .","The court heard submissions from an acting public prosecutor of GPE , who considered it necessary to reclassify the applicant \u2019s actions under LAW .","The court noted that the applicant had been found guilty under LAW of LAW , in that he had procured drugs from ORG RUR CARDINAL , with a view to their sale , and had kept \u201c particularly large \u201d quantities in his possession , namely heroin weighing QUANTITY in CARDINAL sachets ; that he had then sold CARDINAL sachet containing \u201c particularly large \u201d quantities of heroin QUANTITY to CARDINAL for RUR CARDINAL and had kept the remaining \u201c particularly large \u201d quantity of heroin QUANTITY in his possession until his arrest by police on DATE .","The Presidium of ORG held :","\u201c ... having correctly established the facts of the case , the court gave an incorrect legal assessment thereof in the judgment . In procuring the narcotics for his personal consumption and also for [ OZ ] , at her request and with her money , in storing the narcotics and in handing over part of the heroin to [ OZ ] and keeping part of it for himself , ORG did not act with a view to selling [ drugs ] and he did not sell [ drugs ] but was acting as an accomplice to [ CARDINAL ] , who purchased heroin for her personal consumption . \u201d","It maintained that , in those circumstances , the applicant \u2019s actions should be classified under LAW as joint participation in the procurement and storage of \u201c particularly large \u201d quantities of drugs without intent to sell .","The Presidium of ORG held that the judgment of DATE and the decision of CARDINAL DATE in the applicant \u2019s case should be varied , convicted him under LAW and sentenced him to CARDINAL years\u2019 imprisonment . It upheld the judgment and decision in the remaining part . With reference to LAW of DATE , the court ordered that the applicant be released from serving his sentence and , consequently , from custody .","Section VI , LAW of LAW of DATE , ( \u0423\u0433\u043e\u043b\u043e\u0432\u043d\u043e-\u043f\u0440\u043e\u0446\u0435\u0441\u0441\u0443\u0430\u043b\u044c\u043d\u044b\u0439 \u043a\u043e\u0434\u0435\u043a\u0441 \u0420\u0421\u0424\u0421\u0420 ) , in force at the material time , allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed .","Pursuant to Article CARDINAL of LAW of DATE , a judgment enters into force and is subject to execution as of DATE when the appeal ( cassation ) instance pronounces its judgment or , if it has not been appealed against , when the time - limit for appeal has expired .","\u201c The grounds for quashing or changing a judgment [ on supervisory review ] are the same as [ those for setting aside judgments which have not entered into force on cassation appeals ] . \u201d","\u201c The grounds for quashing or changing a judgment on appeal are as follows :","( i ) prejudicial or incomplete inquest , investigation or court examination ;","( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;","( iii ) grave violation of procedural law ;","( iv ) misapplication of [ substantive ] law ;","( v ) inadequacy of the sentence to the gravity of offence and the convict \u2019s personality . \u201d","Article CARDINAL of the Code of Criminal Procedure of DATE provided that the power to lodge a request for a supervisory review could be exercised by ORG , the President of ORG of GPE and their respective Deputies in relation to any judgment other than those of the Presidium of ORG , and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could solicit the intervention of such officials for a review .","According to ORG CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE , the request for supervisory review was to be considered by the judicial board ( the ORG ) of the competent court . The court could examine the case on the merits , and was not bound by the scope and grounds of the extraordinary appeal . The ORG could dismiss or uphold the request . If the request was dismissed , the earlier judgment remained in force . If it upheld the request , the ORG could decide whether to quash the judgment and terminate the criminal proceedings , to remit the case for a new investigation , or for a fresh court examination at any instance , to uphold a first instance judgment reversed on appeal , or to amend and uphold any of the earlier judgments .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of LAW of DATE provided that the ORG could in the same proceedings reduce a sentence or amend the legal qualification of a conviction or sentence to the defendant \u2019s benefit . If it found a sentence or legal qualification too lenient , it had to remit the case for a new examination .","Under LAW of LAW of Criminal Procedure of DATE , a public prosecutor took part in a hearing before a supervisory review instance . A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary . If summoned , they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing . On DATE ORG of GPE ruled that the above provision was incompatible with LAW where the grounds for supervisory review of a case were to the detriment of a convicted person .","Under LAW of LAW , which entered into force on DATE , a convicted person and his counsel are notified of the date , time and place of hearings before the supervisory review court . They may participate in the hearing provided that they have made a specific request to that effect .","Illicit procurement or storage of drugs without intent to sell is punishable under LAW of DATE , in force at the material time . Illicit procurement or storage of drugs with intent to sell and the sale of drugs in \u201c particularly large \u201d quantities are punishable under LAW of LAW .","Under LAW of LAW , convicted persons can be released from punishment by an amnesty act . Under LAW , a person is considered not to have been convicted if he or she released from punishment .","Section CARDINAL of the Operational - Search Activities Act of DATE lists a number of techniques that may be used by law - enforcement or security authorities for the purposes of , inter alia , investigating and preventing offences . In particular , the police may carry out a \u201c test purchase \u201d ( \u043f\u0440\u043e\u0432\u0435\u0440\u043e\u0447\u043d\u0430\u044f \u0437\u0430\u043a\u0443\u043f\u043a\u0430 ) where , inter alia , a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police and the available data are insufficient for bringing criminal proceedings ( section CARDINAL ) . The taking of operational - search measures which interfere with NORP constitutional rights to respect for their correspondence , telephone communications and home is allowed if authorised , as a general rule , by a court ( section CARDINAL) . The \u201c test purchase \u201d of goods , the free sale of which is prohibited , and certain undercover operations by agents or persons assisting them , are carried out on the basis of a decision sanctioned by the head of an agency engaged in operational - search activities ( section CARDINAL) . Results of operational - search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure ( section CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79269","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2007,"docname":"CASE OF ASLAN AND \u00d6ZSOY v. TURKEY","importance":4,"conclusion":"Violation of P1-1","judges":"","text":["The applicants were born in DATE and DATE respectively and live in LOC .","On various dates , the applicants bought plots of land ( nos . DATE and DATE respectively ) near the coast in LOC . The first applicant opened a wedding hall on the LOC . The second applicant ran a cafeteria and a boarding house .","NORP In DATE GPE , acting on behalf of the ORG , requested ORG to determine whether the ORG plots of land were located within the coastline . A group of experts , composed of a geomorphologist , a cartography engineer and an agricultural engineer , appointed by the court , inspected the applicants\u2019 land and concluded that they were located within the coastline .","Following the conclusions of the experts\u2019 report , the ORG filed CARDINAL separate actions before ORG , requesting the annulment of the ORG title deeds to the lands on the ground that they were located within the coastline .","On DATE and DATE respectively , ORG , after having obtained additional experts\u2019 reports , upheld the request of the ORG and decided to annul the title deeds of the applicants to the plots of land . In its decisions , the court held that , pursuant to domestic law , coasts could not be subject to private ownership and that , therefore , the applicants could not rely on the argument that they had acted bona fides and on the fact that they had constructed buildings on the site . ORG dismissed the applicants\u2019 appeals on DATE and DATE respectively .","On various dates the applicants requested ORG to rectify its decision submitting , inter alia , that the right to property was protected under international conventions , the constitution and the domestic law , and that the domestic courts had deprived them of their property rights without proper examination . ORG dismissed the ORG requests on DATE and DATE respectively . These decisions were served on the applicants on DATE and CARDINAL DATE respectively .","The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON v. GPE judgment ( no . CARDINAL , \u00a7 CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105557","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2011,"docname":"CASE OF WIZERKANIUK v. POLAND","importance":3,"conclusion":"Violation of Art. 10;Pecuniary and non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP . At the material time he was a chief editor and a co - owner of the local newspaper \u201c Gazeta Ko\u015bcia\u0144ska \u201d , published in NORP .","On DATE CARDINAL journalists working for the applicant \u2019s newspaper interviewed a local GPE , Mr PERSON The interview , arranged during a chance meeting CARDINAL of the journalists and the GPE DATE , at a session of ORG , took place in the LOC \u2019s office in NORP and lasted TIME . All questions and answers were tape - recorded . It related to the LOC \u2019s public and business activities . After the meeting the PERSON requested that the text of the interview be submitted for his authorisation ( autoryzacja ) before its publication , as provided for by LAW ( ORG ) ( see paragraph CARDINAL below ) .","The verbatim transcript of the interview , subsequently prepared by the CARDINAL journalists , ran to CARDINAL standard pages . The applicant requested PERSON , the editing journalist of the newspaper , to prepare an edited version of the interview , fit for the publication purposes . That version ran to CARDINAL standard pages . The latter version was subsequently presented to the interviewee , DATE after the conversation . He read it and informed an employee of his office , Mr K. P. , that he would not give his consent to the publication of the text . He was of the view that the text did not correspond to the conversation he had had with the CARDINAL journalists and that many important statements he had made were not included . He asked PERSON to inform the applicant of his refusal . Shortly afterwards , the applicant called the GPE who reiterated his refusal .","In an undated letter to the applicant , served on him on CARDINAL DATE , the ORG stated :","\u201c It is true that in DATE I talked to CARDINAL representatives of \u201c LOC \u201d . During that conversation , which was in any event very informal , I replied to a number of questions . However , the text submitted for my authorisation only after DATE , failed to include many of my important statements and to reflect the character and contents of my statements , [ a state of affairs ] which I can not accept . \u201d","On DATE the newspaper published a short text asking the readers whether they would be interested in having an interview with Mr PERSON , the local GPE , published .","On DATE parts of the verbatim records of the interview , edited by PERSON and accompanied by photos made when the interview was conducted , were published by \u201c Gazeta Ko\u015bcia\u0144ska \u201d . The text carried a lead informing the reader that the LOC had refused to grant his authorisation for the publication of the interview and that the newspaper was publishing parts of the interview as recorded on the tape , including in its original grammatical form .","On DATE the GPE informed ORG that the applicant had committed a criminal offence by publishing parts of the interview without his authorisation and against his will .","On DATE criminal proceedings were instituted against the applicant on a charge of publishing an interview with the GPE in spite of the latter \u2019s refusal to authorise its publication . During the investigation the GPE submitted that he had talked to the CARDINAL journalists from the applicant \u2019s newspaper . They had had a casual conversation rather than a formal interview . DATE he had been given the text to be published which , in his view , failed to reflect many of his important assertions . Moreover , he was of the view that the text failed to convey both the character and the substance of his statements .","By a judgment of DATE the ORG found the applicant guilty as charged . The court established the facts of the case as summarised above ( see paragraphs CARDINAL above ) . It further found that the applicant had published the interview despite the LOC \u2019s refusal to authorise its publication . This in itself amounted to a criminal offence punishable under section CARDINAL read together with section CARDINAL of the DATE LAW ( see paragraph CARDINAL below ) . The court observed that it was possible for the interviewed person to renounce his or her right to grant authorisation for the text to be published , but such a declaration had to be unequivocal .","The court noted the submission made by ORG , who was heard as a witness . According to ORG , the newspaper had not published the CARDINAL - page summary which had initially been submitted for the ORG \u2019s approval . It had published parts of the interview quoted verbatim . The court found his statement credible .","The court further noted that ORG \u2019s photographs taken during the interview had also been published together with the interview . The applicant had failed to indicate which photographs he intended to publish and to show them to GPE before the publication .","The court further observed that the applicant had failed to comply with his obligation , under LAW , to obtain the authorisation of the interviewed person . It was of the view that the fact that the interview had been published without the required authorisation breached the interviewee \u2019s personal rights . The applicant had acted with intent to break the law , but he had been motivated by his wish to fulfil his journalistic duties by making the interview available to the public . Having regard to the latter factor , the court concluded that the offence concerned could not be regarded as serious .","Consequently , and having regard also to the fact that it was not open to any doubt that the applicant was a law - abiding citizen and that his conduct had always been irreproachable , the court conditionally discontinued the proceedings , obliged the applicant to pay MONEY ( ORG ) to a charity and ordered him to bear the costs of the proceedings .","By a judgment of the Pozna\u0144 Regional Court of DATE , served on the applicant on DATE , the first - instance judgment was upheld . The court noted , inter alia , that the photographs taken during the interview constituted its inherent part . The applicant , by publishing them without the interviewee \u2019s consent , had breached his personal rights within the meaning of LAW .","The applicant subsequently lodged a constitutional complaint with ORG , challenging the compatibility with LAW of section CARDINAL in conjunction with section CARDINAL of LAW DATE , in so far as they provided for a fine or for restriction of liberty to be imposed on a journalist or publisher for failing to ask an interviewee for his or her authorisation . He relied on LAW , guaranteeing the right to freedom of expression , and LAW , providing for the principle of proportionality in respect of restrictions on constitutional rights .","In the ensuing constitutional proceedings ORG sought the opinions of the ORG ( PERSON ) , ORG ) and the Speaker of the ORG ( PERSON ) . In their opinions submitted to that court they concluded that section DATE , read together with section CARDINAL of LAW , was incompatible with the constitutional guarantees of freedom of expression . They were of the view , in particular , that the restriction on the exercise of that right by imposition of a criminal penalty was incompatible with LAW , which enshrined the principle of proportionality in respect of restrictions imposed on the exercise of civil rights and freedoms ( see paragraph CARDINAL below ) . They further referred to the existing civil law instruments available for the purposes of effective protection of personal rights ( see paragraphs CARDINAL - CARDINAL below ) .","The Constitutional Court gave a judgment on the merits of his constitutional complaint on DATE . It held that the contested provisions of LAW were compatible with LAW read together with its LAW .","NORP The court noted that it was proposed in a public debate to do away with the obligation to seek and obtain the authorisation provided for by LAW . However , the opinions pointing to the potential danger of such a legislative measure could not be overlooked . ORG was of the view that abrogating the authorisation requirement would , on the one hand , expose persons interviewed by the press to the risk of having their personal rights breached by having their words distorted and , on the other , be dangerous for the exercise of the freedom of expression . The essence of the authorisation was not only to ensure that statements made by interviewees were rendered literally , but also to protect the integrality of such statements . This , in turn , ensured that the intentions of the speaker were faithfully conveyed .","Therefore , the applicant \u2019s argument that the authorisation requirement gave the interviewee an opportunity to block the publication of a statement indefinitely was incorrect .","The judgment further read :","\u201c Freedom of expression constitutes one of the essential foundations of a NORP society and one of the basic conditions for its progress and for each individual \u2019s self - fulfilment . It is applicable not only to \u201c information \u201d or \u201c ideas \u201d that are favourably received or regarded as inoffensive or as a matter of indifference , but also to those that offend , shock or disturb . The press has a duty to impart DATE in a manner consistent with its obligations and responsibilities \u2013 information and ideas on all matters of public interest . This duty is closely intertwined with the right of the public to receive information . ( ... )","Statements made public by the media could , as they have a great power of persuasion , lead to the infringement of the personal rights of the individuals concerned . In certain cases the post factum remedies available under law are insufficient to provide effective redress for such infringements , and in some cases the damage could indeed be irreparable . However , a publicly made statement not only could be an instrument of an infringement , but could also be unlawfully distorted . This was why the legislature decided to grant additional protection to statements made in the context of interviews by creating the authorisation requirement . Assuming that this requirement amounted to a restriction on freedom of expression as it obliged journalists to obtain authorisation from the author of literally quoted statements , its necessity in a NORP society has to be examined . [ The ] freedom of expression is not ius infinitum and could therefore be limited . However , it is necessary that restrictions on its exercise are compatible with the principle of proportionality set out in DATE . This provision allows for restrictions imposed on individual rights only when they have statutory legal basis and are necessary in a democratic state in the interests of national security or public safety , for the protection of environment , health or morals , for the protection of rights of others . These restrictions can not not impair the essence of rights and freedoms . ( ... )","Article CARDINAL of the LAW provides for everyone \u2019s right to the legal protection of one \u2019s private and family life , of one \u2019s honour and good reputation , and for the right to decide about one \u2019s personal life . No restrictions can be imposed on the exercise of these rights ( ... ) . On the contrary , the freedom of expression can be restricted . The obligation to obtain the interviewee \u2019s consent amounted to a restriction . However , such restriction can not be seen as impairing the essence of the freedom of expression , because it concerns only statements quoted verbatim in press publications . It does not restrict or limit journalists\u2019 right to inform the public of the content of such a statement by summarising it . When a journalist chooses to summarise or otherwise convey the content of a statement made by the interviewee , he or she is not obliged to seek the interviewee \u2019s authorisation or to inform them of the intended publication . Nor , therefore , does it restrict the right of the public to obtain information .","[ ... ] that requirement is also necessary in a NORP society to protect the personal rights of journalists\u2019 sources . Hence , not only it is not in breach of any constitutional right but , on the contrary , it had to be regarded as a guarantee of the effective exercise of constitutional rights .","Furthermore , this requirement is justified not only by the necessity to protect individual rights [ ... ] but it derives its legal foundation from other elements which , taken together , formed the constitutional notion of the public interest . As the authorisation serves to establish with full clarity the authorship of a given statement made public , it contributes to the clarity and transparency of public debate . It makes it possible for the reader to be certain that the speaker identifies himself with the statement \u2019s content and would not try to change it or to distance himself from it . It is therefore in the reader \u2019s interest to maintain it . Without this requirement , readers could not be sure whether statements purportedly made in the context of interviews are really authentic .","In ORG opinion the authorisation requirement was therefore a means of guaranteeing the reader \u2019s right to obtain reliable , credible , truthful , honest , clear , not misleading and responsible information . This right has not been expressly guaranteed by LAW , but it was anchored in it . [ ... ] \u201d","In so far as the criminal sanction for failure to obtain the authorisation was concerned , ORG observed that it aimed at ensuring that the citizen \u2019s right to reliable information was respected . Authorisation was the simplest way to ensure the veracity of the message , whereas statements published without authorisation could be distorted , which was clearly undesirable .","The Constitutional Court referred to the legal provisions penalising defamation . It was of the view that while the offence of defamation was directed against an individual \u2019s reputation , in the same way the offence penalised by section CARDINAL read together with section CARDINAL of LAW was aimed at obtaining compliance with the obligation to quote and report statements made by interviewees in a fair and accurate manner , in order to protect their personal rights . The penal sanction provided for by these provisions thus respected the principle of proportionality .","A dissenting opinion of Justice PERSON was attached to that judgment . He had regard , firstly , to considerations which could be said to have constituted the ratio legis of LAW when it had been adopted in DATE . He noted that LAW , in force at that time , guaranteed neither the right to freedom of expression nor the right to respect for family and private life in any form comparable to the current constitutional regulations . At that time all media had been subject to preventive censorship and it was ultimately the ORG which decided what could be published or broadcast . The opinion further read , inter alia :","\u201c The provisions of LAW regarding the authorisation requirement were only , at that time , an additional safeguard against the press publishing any information given to journalists by ORG or ORG agents if such information was capable of jeopardising the interests of then political power .","[ Given that constitutional background , it is only natural that ] LAW did not provide for any distinction in respect of the authorisation requirement between the persons exercising public functions and all other persons . Thus , that LAW provided for identical protection , by way of the criminal law , of persons holding public offices who were , for that reason , obliged to provide information about their acts to journalists , playing the role of \u201c watchdogs \u201d of the public powers on behalf of public opinion , and all other , \u201c private \u201d , persons . ( ... )","Moreover , LAW failed to indicate any time - limit within which a journalist could reasonably expect that authorisation would be granted or refused . ( ... )","While it is true that during DATE of the ancien r\u00e9gime , in CARDINAL , ORG censorship became less strict , the origin of the examined provisions of LAW and the place they had in the legal order at that time can not be ignored . \u201d","Justice PERSON further disagreed with ORG in so far as it had held that the restrictions imposed by the impugned provisions satisfied the test of proportionality , enshrined in LAW . In this context , he stated that the freedom of speech standards developed by ORG in its judgments could not be overlooked . The dissenting opinion further read :","\u201c The impugned provisions [ seen in this light ] amounted to an unnecessary and excessive interference with the freedom of the press in the interest of the personal rights of persons providing information to the press . These provisions were not necessary for that purpose at the time they were adopted and are still less necessary in a democratic ORG governed by the rule of law .","Authorisation to publish information quoted verbatim is unknown to the legal systems of other GPE of ORG . ( ... )","The authorisation requirement amounts to censorship which makes it impossible for the reader to know the original statement made by the interviewee . It may dissuade journalist who is wishing to obtain an interview for their newspaper with a politician important in a national or local context from asking uncomfortable , searching questions . ( ... )","In a democratic state a politician , a public person , has no right to manipulate his or her statements post factum . If he or she resorts to such manipulation , the public opinion is entitled to know this because it is an important element relevant for public image of a politician if he or she tampers with his or her public statements . The requirement of authorisation makes it impossible for the public to acquire such knowledge . ORG expect politicians to have the courage to make wise decisions in difficult situations . If a politician is unsure of the choice of words to be used when speaking in a public situation it might be a signal to the public that he or she is unable to cope with stressful circumstances . It is something that public opinion is entitled to know . ( ... )","I do not share the view expressed by ORG in the present case that a journalist , when refused authorisation to publish a verbatim quotation , can resort to paraphrasing the statements concerned ; that LAW therefore does not in any way restrict the journalist \u2019s right to convey the interviewee \u2019s thoughts and the right to inform the public thereof ( ... ) . I am of the view that public opinion always has a right to be informed of the interviewee \u2019s statements quoted verbatim always where a journalist deems it necessary to convey information which is interesting for readers . I am also of the opinion that that descriptive technique is manipulative and makes it possible for both a journalist and an interviewee to shirk responsibility for the words they use . Furthermore , the fact that the impugned provisions of LAW make it possible to use such \u201c techniques \u201d and \u201c evasions \u201d demonstrates that they do not meet the standards required of a fair - minded legislator . ( ... )","There is no right in the LAW or in a NORP society to \u201c true \u201d or \u201c right \u201d information . A journalist is not obliged to provide such information ; if only because he or she does not exercise public powers . His or her professional duty is to seek and disseminate information , views and judgments . Only persons receiving information , readers , listeners , TV watchers or internet users are to decide whether information is true or not . ( ... )","The authorisation requirement is not , as such , wrong . A journalist , when talking to experts , may have , at the editing stage , some doubts whether he or she has properly understood what they said , even where the interview was recorded . In practice , in such situations journalists themselves request the persons interviewed to read the text and to correct or supplement it . A journalist is well aware that errors he committed in gathering specialist information could jeopardise his position on the market . What then is a sword of a criminal sanction needed for ? ( ... )","The mere fact that section DATE of LAW has practically never been applied recently by the courts ( ... ) does not mean that it does not play in the NORP legal system a negative role , with a chilling effect on public debate . No one challenges the constitutionality of the provisions of civil law applied by the courts in the context of disagreements arising out of press publications . \u201d","Article CARDINAL of the LAW provides :","\u201c CARDINAL . Freedom to express opinions , and to acquire and disseminate information shall be ensured to everyone .","Preventive censorship of means of social communication and licensing of the press shall be prohibited . \u201d","Article CARDINAL of the LAW reads :","\u201c Freedom of the person shall receive legal protection .","Everyone shall respect the freedoms and rights of others . No one shall be compelled to do that which is not required by law .","Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . \u201d","Article CARDINAL of the LAW provides that a citizen shall have the right to obtain information on the activities of organs of public authority as well as those of persons discharging public functions .","Section CARDINAL of the Press Act DATE reads :","\u201c CARDINAL . Publication or dissemination in another manner of information that has been preserved by way of phonic or visual recording requires the consent of the persons providing the information .","It is obligatory for a journalist to submit the text of a statement cited verbatim , if it has not been published previously , for authorisation by the person providing the information . \u201d","Section CARDINAL of LAW provides :","\u201c Anybody who infringes the provisions of Articles CARDINAL , CARDINAL paragraph CARDINAL , Articles CARDINAL , CARDINAL paragraph CARDINAL and Article DATE shall be subject to a fine or the penalty of limitation of liberty . \u201d","Under LAW of that LAW an editor - in - chief of a newspaper is obliged to publish a disclaimer to rectify false information , or a matteroffact reply to an article , if the requesting person considers that that article has breached his or her personal rights .","Various provisions of LAW adopted in DATE were subsequently amended by ORG ( PERSON ) on CARDINAL occasions . Neither section CARDINAL nor CARDINAL have been amended .","DATE the Civil Code contains a non - exhaustive list of the rights known as \u201c personal rights \u201d ( dobra osobiste ) . This provision states :","\u201c The personal rights of an individual , such as , in particular , health , liberty , reputation ( cze\u015b\u0107 ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . \u201d","Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . According to that provision , a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or claim just satisfaction from him \/ her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .","Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :","\u201c The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... \u201d","Under LAW and QUANTITY of LAW of DATE , criminal proceedings may be conditionally discontinued if the seriousness of the offence , punishable by a prison sentence of DATE , is not significant , the circumstances in which it was committed have been established beyond reasonable doubt , the perpetrator does not have a criminal record and his personal circumstances and qualities suggest that he will abide by the law during the probation period .","Under Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the Code , when deciding to discontinue the proceedings for the period of probation , lasting from DATE from the date on which the judgment becomes final , the court can impose certain obligations on the accused : to pay appropriate compensation to the victim of the offence , to apologise to him \/ her , or to carry out certain work in the public interest .","Under LAW , the court can fix a probation period of DATE , running from the date on which the judgment became final . Criminal proceedings may be resumed if during the probation period the offender disregards the obligations imposed by the court , acts in flagrant breach of public order , or , in particular , commits a new criminal offence ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5988","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2001,"docname":"MACIEJEWSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , PERSON , is a NORP national , born in DATE and living in PERSON , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG - operative \u201c N \u201d lodged with ORG ( S\u0105d Rejonowy ) an action in which it sought the dispossession of the applicant of a property situated in ORG . The property consisted of a detached house located on a plot of land .","The first hearing was held on DATE but it was adjourned as the plaintiff had submitted to the court a wrong address for the applicant and he had not been served with a summons .","DATE and DATE the court adjourned CARDINAL hearings because of the ill - health of the applicant and the presiding judge , and held QUANTITY hearings . The applicant failed to attend CARDINAL of them .","In the meantime , on DATE , the applicant asked the court to stay the case as he had initiated administrative proceedings concerning the contested property .","On DATE ORG delivered a judgment in which it ordered the dispossession of the applicant . The court pointed out that on DATE the applicant had moved into the house after it had been abandoned by a certain Mr A. \u0141. However , the property belonged to the Co - operative , which had never agreed that the applicant should acquire its tenancy .","On DATE the applicant filed with the Gorz\u00f3w Wielkopolski Regional Court ( S\u0105d Wojew\u00f3dzki ) an appeal against the judgment of ORG .","On DATE the Gorz\u00f3w Wielkopolski ORG quashed the judgment of CARDINAL DATE and remitted the case to ORG , instructing it to take additional evidence .","The applicant was absent during the hearings held on DATE and DATE . On the latter occasion his absence was caused by ill - health .","The applicant was absent during the hearing held on CARDINAL DATE because he refused to collect a summons .","During the hearing held on DATE the plaintiff changed its claim and asked the court to order the eviction of the applicant . It also requested the court to stay the case pending the outcome of the administrative proceedings instituted by the applicant , which request was granted .","On DATE ORG decided to resume its examination of the case in view of the fact that the administrative proceedings and those concerning the title to the property , which the applicant had initiated on DATE , had been terminated .","The applicant failed to attend the hearing held on DATE . On DATE he sent to the court a letter which included the following statement :","\u201c The refusal to take part in the proceedings will prevent a scandal which the court intends to cause . The betrayal of their independence by the courts in GPE and PERSON allowed me to apply to ORG in GPE , where I already await the examination of my complaint . Therefore I am returning the served summons . \u201d","On DATE ORG delivered a judgment ordering the eviction of the applicant . He failed to lodge an appeal against that decision in accordance with the relevant formalities ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61674","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2004,"docname":"CASE OF G.B. v. BULGARIA","importance":3,"conclusion":"Violation of Art. 3;No separate issue under Art. 13","judges":"Christos Rozakis","text":["The applicant was born in DATE . He is currently in prison .","NORP In DATE the applicant was convicted of the murder of his wife and sentenced to DATE imprisonment . He was released in DATE .","On DATE the applicant was convicted of the murder of his second wife , committed in a cruel manner , the case having been qualified as a \u201c dangerous recidivism \u201d within the meaning of LAW of LAW . The applicant was sentenced to the death penalty . By judgment of DATE ORG dismissed the applicant 's ensuing appeal and upheld the death sentence .","On DATE the applicant filed a petition for review to a CARDINAL - member chamber of ORG . Following a hearing on DATE , the petition was refused on DATE .","Article CARDINAL \u00a7 CARDINAL of LAW as in force at the time , provided that no execution could be carried out prior to the President 's decision whether or not to exercise his power of pardon .","The last executions of persons sentenced to the capital punishment were carried out in GPE in DATE .","Following a period of a de facto moratorium on executions , on DATE the ORG adopted a decision \u201c on deferral of the execution of death sentences \u201d which read :","\u201c The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in GPE . \u201d","NORP Since the capital punishment remained in LAW , the courts continued sentencing convicted persons to death or - as in the applicant 's case - upholding on appeal death sentences delivered before DATE .","Although no explicit undertaking by GPE to abolish the death penalty was made at the moment of GPE 's accession to ORG DATE , such a requirement was regarded as implied in the general undertaking to comply with LAW ( see the reports of ORG commission on GPE 's compliance with its obligations and undertakings ( report of QUANTITY DATE , ORG . DATE , \u00a7 \u00a7 CARDINAL and CARDINAL ( urging the abolition as an implied obligation ) , and report of DATE , ORG . DATE , \u00a7 CARDINAL ( noting with satisfaction the abolition of the death penalty ) ) .","On DATE the President of ORG submitted the applicant 's case to the President of the Republic for a decision whether or not to pardon him . In the accompanying letter the President of ORG expressed his opinion that the applicant should be pardoned and his death sentence replaced by a term of imprisonment . He argued that due consideration should be given to the fact that the applicant was a person of limited self - control abilities and had acted under distress when murdering his wife . The President of the Republic did not make a decision , leaving the question of pardon pending .","In DATE the applicant wrote to the President of the Republic requesting to be pardoned and to the prosecution authorities seeking reopening of the criminal case . He stated , inter alia , that his continued detention under threat of execution was inhuman and degrading and violated the Convention .","On DATE ORG abolished the death penalty replacing it by life imprisonment without parole eligibility .","By decision of DATE the applicant 's death sentence was commuted to life imprisonment without parole eligibility .","On DATE GPE ratified LAW No . CARDINAL to the Convention .","NORP The death penalty was an issue often debated DATE . A number of members of ORG expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty . The media periodically discussed the topic . It was widely known that the abolition of the death penalty was urged by ORG and other international organisations and was a step towards GPE 's NORP integration .","During the relevant period LAW was amended several times . Some amendments expanded the scope of the death penalty . At the same time , work started on a draft LAW which excluded the death penalty . In DATE an amendment to LAW introduced for the first time life imprisonment .","The following attempts to reintroduce executions were made by supporters of the death penalty :","On DATE the Chair of ORG and another member of ORG introduced a motion proposing the annulment of the ORG 's decision of DATE .","On DATE a similar proposal was introduced in ORG by a minority parliamentary group , ORG . CARDINAL parliamentary committees discussed the issue and voted against reintroducing executions . On DATE ORG held a hearing on both proposals which were defeated .","The issue of reintroducing executions was discussed several times in the ORG elected at DATE . There were CARDINAL motions : CARDINAL for a parliamentary vote on restarting executions and CARDINAL for calling a referendum .","The first proposal was discussed by ORG , which supported the idea of reintroducing executions by a majority of CARDINAL votes to CARDINAL . Thereafter , a member of ORG on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the ORG . On CARDINAL occasion the motion gathered the required number of votes to be entered on the DATE agenda , but eventually was not discussed . Most proposals to include the issue on the agenda of the ORG 's plenary session were defeated through abstention votes .","The first motion for a referendum was defeated on a procedural ground as the proposed date in DATE did not allow sufficient organisation time . The second proposal for a referendum , filed on DATE , was considered by ORG on DATE and was defeated by CARDINAL votes to CARDINAL , with CARDINAL abstentions .","On DATE a proposal for restarting executions was introduced by opposition deputies . It was discussed by ORG and was defeated on DATE by CARDINAL votes to CARDINAL .","According to CARDINAL of the Execution of Sentences Act , as in force at the time of the moratorium on executions , persons awaiting execution were to be detained in complete isolation , correspondence and visits being only possible if permitted by the competent prosecutor .","On DATE the Deputy Director of ORG instructed prisons administrations that the ORG 's decision suspending executions also suspended by implication this restrictive regime of detention .","The instruction stated , in so far as relevant , that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a \u201c special regime \u201d ( the regime of detention of recidivists and , after DATE , persons sentenced to life imprisonment : sections CARDINAL and ORG of LAW as in force at the time ) . Inmates should have a bed , bedcover , a bed - side piece of furniture and a centrally operated radio loudspeaker . They should be allowed unlimited correspondence , newspapers and books , CARDINAL visit per month , TIME of DATE outdoor walk without contact with other categories of prisoners and the receipt of CARDINAL food parcel DATE and a small amount of money . If possible , they could work in the cell .","On DATE , the Director of ORG and a prosecutor of ORG issued an instruction which stated that , \u201c in view of the continuing moratorium on executions \u201d , persons sentenced to death should be allowed unlimited correspondence , TIME DATE outdoor walk , CARDINAL visit per month and the receipt of CARDINAL food parcels and CARDINAL packs of cigarettes per month and small amounts of money .","The applicant was detained in the PERSON prison , in a wing for prisoners under the \u201c special regime \u201d provided for by section QUANTITY of the Regulations on the Application of the Execution of Sentences Act , approximately CARDINAL inmates . He was moved several times , but was always in cells measuring CARDINAL by QUANTITY .","It appears that during most of the above period the applicant was alone in a cell . Other prisoners sentenced to death and detained in the same prison as the applicant were allowed to share a cell DATE . It is unclear whether it was possible for the applicant to request to share a cell with another prisoner .","The applicant 's cell invariably had CARDINAL bed with a mattress , CARDINAL blankets , a metal chamber pot and a centrally operated radio loudspeaker . There was no chair or a table . Until DATE , when all cell windows were replaced by larger ones , the window in the applicant 's cell was very small , covering QUANTITY , and did not allow sufficient light and fresh air .","There was one CARDINALWatts electric bulb in the cell . As it was installed on the wall above the door , its light was insufficient .","The central heating pipes in cells for special regime prisoners were covered by a layer of bricks . According to the applicant that impeded the normal heating and as a result it was often cold in DATE . According to the Government the bricks accumulated heat and released it normally .","Inmates were given TIME out - of - cell time in the morning in an open yard . There they could walk together with other inmates from the special regime wing .","NORP The cells of special regime prisoners had no electrical sockets . Despite an amendment of the relevant instructions in DATE which authorised the use of radio and television receivers by special regime prisoners , such devices could therefore only be used on batteries .","As they were considered to be high risk prisoners , inmates sentenced to death were not eligible for outside work assignment . As a result , the applicant used to spend TIME a day on his own in his cell . Food was delivered CARDINAL times a day in the cell . The applicant was permitted to leave his cell during TIME walk , again in TIME for TIME for use of the sanitary facilities , and when receiving visits or for medical consultations . Also , inmates could have a shower once per week , for TIME .","CARDINAL or two visits of TIME were allowed per DATE . Visits by lawyers were not limited . At least on CARDINAL occasion the applicant was visited by journalists .","During the relevant period there has been no limitation on correspondence . The applicant could also receive food parcels and money . He could buy small food and toilet items from the prison shop , if he had the money to do so . He could borrow books from the prison library .","The applicant received the same medical service as all other prison inmates . DATE he was seen CARDINAL times by a dentist and many times by other medical doctors . There is an infirmary opened TIME per day .","Ever since his imprisonment in DATE the applicant has been monitored by the prison psychological service . An assessment written by CARDINAL of its employees on DATE and submitted by the ORG stated , inter alia :","\u201c [ I]n crucial moments , such as the moratorium on executions and the ensuing period of debates about the abolition of the death penalty ... [ the applicant ] was unable to cope on his own with the fear and anxiety that had gripped him : his neurotic and depressive complaints reappeared , as well as his ... defence reactions ( ... denial of any guilt ... ) .","During that period a number of psychological consultations and examinations were carried out with the [ applicant ] ... [ These ] brought about a temporary improvement : his neurotic and depressive reactions and his fright phased out but may reappear if the situation changes ...","[ The applicant ] 's personality is characterised by contradictions , domineering tendencies and aspirations ... He ... seeks justifications [ in respect of the murder ] and aspires to preserve his self - respect , adopting the pose of a victim ...","The [ applicant 's ] current need of self assertion - which on a behavioural level is manifested by an aspiration for increased physical and psychological activity and a pursuit of positive social reactions - may , in the situation where there are no changes in his legal status , provoke negative psychological developments by reactivating his pessimistic attitude and the feeling of lack of prospects ... \u201d","The applicant has also been seen several times by psychiatrists at the prison hospital and by outside psychiatrists . They were unanimous that the applicant did not have a mental disorder but displayed signs of \u201c psychopathy and emotional and volitional instability [ typical of ] a primitive personality \u201d .","In DATE , DATE , DATE and again in ORG DATE the applicant was admitted to the prison hospital and treated against neurosis , sleeplessness and loss of appetite . The applicant also complained that he was hearing voices and suffered from feelings of fear . He was treated with sedatives and other medicaments . The examinations revealed his good general condition . The doctors recommended frequent visits to the psychologist .","On an unspecified date he was examined as a matter of emergency as he had stated that he would hang himself . The psychiatrist at the prison hospital directed the applicant to a psychiatric hospital for treatment while noting that his behaviour disclosed a demonstrative element . On several occasions the doctors who examined the applicant noted that he simulated sensory disorders .","The ORG has not visited the PERSON prison where the applicant was detained .","NORP In DATE it visited , however , CARDINAL inmates sentenced to death and detained in the PERSON prison facilities and described the conditions of detention as follows :","\u201c The material conditions in the cells left a great deal to be desired : mediocre access to natural light and weak artificial lighting ; inadequate heating ; cell furnishings in a poor state of repair ; dirty bed linen , etc . As regards out - of - cell activities , they were limited to TIME for use of the sanitary facilities , TIME outdoor exercise ( which the prisoners alleged was not guaranteed DATE ) and CARDINAL visit per month . The CARDINAL prisoners were not allowed to work ( not even inside their cells ) , nor to go to the library , the cinema room or the refectory ( their food was brought to the cell ) . In short , they were subject to an impoverished regime and , more particularly , were offered very little human contact . The latter consisted essentially of the possibility to talk to each other during outdoor exercise ( which they took together ) , and occasional dealings with prison officers . Practically the only forms of useful occupation at their disposal were reading newspapers and books , and writing letters .","The above - described situation is in accordance with the rules concerning prisoners sentenced to death , adopted after the moratorium on the execution of the death penalty ... Nevertheless , in the ORG 's view it is not acceptable .","It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely , in the long term , to have damaging effects , resulting in deterioration of mental faculties and social abilities . The delegation found that the regime applied to prisoners sentenced to death in FAC did not provide such stimulation .","The ORG recommends that the regime applied to prisoners sentenced to death held in FAC , as well as in other prisons in GPE , be revised in order to ensure that they are offered purposeful activities and appropriate human contact . Further , the ORG recommends that steps be taken to improve the material conditions in the cells occupied at FAC by prisoners sentenced to death . \u201d","Historically , most Member States of ORG approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition . States which became members of ORG during DATE were urged by ORG to introduce moratoria on executions as a first step towards the abolition of the death penalty ( see , Report on the abolition of the death penalty in LOC , ORG . CARDINAL ( DATE ) ) .","The ORG has held that \u201c in the absence of further compelling circumstances \u201d prolonged detention on death row per se does not constitute a violation of LAW ( prohibition of cruel , inhuman or degrading treatment ) ( see PERSON v. GPE , Views of DATE , communication no . CARDINAL\/CARDINAL , PERSON , ORG , communication no . CARDINAL ; and PERSON v. GPE and GPE , Views of DATE , communication no . CARDINAL ) .","The Commission , when examining complaints by persons on death row , has found violations of LAW ( prohibiting cruel , infamous or unusual punishment of persons accused of offences ) and LAW and CARDINAL of ORG ( right to humane treatment and prohibition of torture , cruel , inhuman or degrading punishment or treatment ) mainly on the strength of facts concerning irregularities in the sentencing process , the material conditions and regime of detention and ill - treatment in prison , while also taking into account the length of the period spent on death row ( PERSON v. GPE , Case No . CARDINAL , Report No . CARDINAL , ORG \/ II.CARDINAL , \u00a7 \u00a7 CARDINAL ; PERSON v. GPE , Case No . CARDINAL , Report CARDINAL\/CARDINAL ) .","ORG , examining cases from GPE , had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those GPE ' Constitutions . Initially , ORG considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings ( PERSON v. PERSON [ DATE ] A.C. CARDINAL , ORG v. Attorney - General of GPE and GPE [ DATE ] CARDINAL W.L.R. DATE ) , or indeed about any delay , \u201c whatever the reasons \u201d , including a temporary moratorium on executions which had been lifted ( PERSON v. Attorney - General of GPE [ DATE ] CARDINAL A.C. CARDINAL ) .","In DATE , departing from its earlier decisions , ORG held that to execute the appellants , who had spent DATE on death row and had on CARDINAL occasions lived through TIME stays of execution , would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment ( PERSON and PERSON v. The Attorney General for GPE and another [ DATE ] CARDINAL A.C. CARDINAL ) .","In PERSON and PERSON , part of the relevant period was taken up by a temporary moratorium on executions .","\u201c [ P]olitical debate on the desirability of retaining the death sentence in GPE ... resulted in a resolution of the ORG on DATE to suspend all executions for DATE pending the report of a ORG of inquiry . ORG was appointed in DATE . Before the ORG reported , an execution took place on DATE which drew a protest to ORG from the Chairman of the ORG . No further executions took place before the ORG reported in DATE . On CARDINALth DATE executions were resumed \u201d ( PERSON , \u00a7 DATE ) .","The judgment in PERSON and PERSON stated , inter alia :","\u201c There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for DATE . What gives rise to this instinctive revulsion ? The answer can only be our humanity ; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time . But before their Lordships condemn the act of execution as ' inhuman or degrading punishment or other treatment ' within the meaning of section CARDINAL(CARDINAL ) [ of LAW ] there are a number of factors that have to be balanced in weighing the delay . If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused can not be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime ...","In their Lordships ' view a ORG that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence , allowing a reasonable time for appeal and consideration of reprieve . It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure . If the appellate procedure enables the prisoner to prolong the appellate hearings over DATE , the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it . Appellate procedures that echo down DATE are not compatible with capital punishment . The death row phenomenon must not become established as a part of our jurisprudence ...","There may of course be circumstances which will lead ORG to recommend a respite in the carrying out of a death sentence , such as a political moratorium on the death sentence , or a petition on behalf of the appellants to [ international human rights bodies ] or a constitutional appeal to ORG . But if these respites cumulatively result in delay running into DATE an execution will be likely to infringe section CARDINAL(CARDINAL ) and call for commutation of the death sentence to life imprisonment . \u201d","Further , calculating the normal length of relevant appellate proceedings in GPE and taking into consideration the time necessary for examination of applications to ORG and ORG , ORG held that :","\u201c in any case in which execution is to take place DATE after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment \u201d .","In cases which followed ORG accepted a claim that DATE and DATE also warranted a finding in favour of the appellant ( PERSON v. PERSON and Others [ DATE ] CARDINAL A.C. CARDINAL ) but dismissed appeals concerning shorter periods ( PERSON v. The Attorney General of the GPE of The GPE [ DATE ] A.C. CARDINAL ; ORG ) v. The Minister of ORG ( GPE ) [ DATE ] A.C. CARDINAL ; and PERSON and PERSON v. The Minister of ORG ( GPE ) [ DATE ] ORG CARDINAL ) and held that save in exceptional circumstances , periods of pre - sentence detention should not be taken into account since , inter alia , \u201c the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution , but ... anxiety and concern of the accused\u201d(Fisher , \u00a7 DATE ) . In PERSON and PERSON , ORG stated , inter alia :","\u201c If a man has been sentenced to death , it is wrong to add other cruelties to the manner of his death ... In PERSON ... the [ ORG ] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair . It is not the delay in itself which is a cruel and unusual punishment ... , ' it is the act of hanging the man that is rendered cruel and unusual by the lapse of time \u201d .","ORG found that execution following inordinate delay after sentence of death violated LAW which provides that \u201c no one shall be deprived of his life or personal liberty except according to procedure established by law \u201d and that the reasons for the delay were immaterial ( PERSON v. ORG [ DATE ] CARDINAL S.C.R. CARDINAL , PERSON and Others v. the ORG of ORG [ DATE ] CARDINAL S.C.R. CARDINAL and Smt . PERSON v. State of GPE [ DATE ] CARDINAL S.C.J. CARDINAL ) .","GPE ORG has refused to accept claims that lengthy detention on death row violated the prohibition , contained in LAW to LAW , of cruel and unusual punishment , emphasising that the delay is due to the convicted person 's own decision to make use of all possibilities to appeal ( PERSON v. GPE , CARDINAL US CARDINAL ) .","ORG has held that NORP constitutional standards did not bar extradition to GPE of a defendant facing the death penalty ( PERSON v. GPE ( Minister of ORG ) , [ DATE ] CARDINAL S.C.R. CARDINAL ) . However , in DATE it changed its approach and held that if the person being extradited could face the death penalty , constitutional standards required that in all but exceptional cases assurances must be sought from GPE that the death penalty would not be imposed or , if imposed , would not be carried out ( GPE v. PERSON , [ DATE ] CARDINAL S.C.R. CARDINAL ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23918","languageisocode":"ENG","respondent":"DNK","branch":"ADMISSIBILITY","date":2004,"docname":"PETERSEN v. DENMARK","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON PERSON PERSON , a lawyer practising in GPE . The PERSON are represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE a new concept called \u201c tax asset stripping cases \u201d ( selskabst\u00f8mmersager ) came into existence in GPE . It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous private limited companies within a short period , and for the sake of their own profit , \u201c stripping \u201d the companies for assets , including deposits earmarked for payment of corporation tax . The persons involved were usually intricately interconnected and collaborated about their economic criminal activities , which concerned very large amounts .","I.","On DATE ORG reported to ORG ( Statsadvokaten for ORG PERSON ) that allegedly , a person henceforth called ORG , and CARDINAL other persons had participated in the acquisition and stripping of CARDINAL private limited companies ( the ORG case ) . ORG made a reservation to increase the number of persons involved and submitted at the same time a note in which the applicant 's name figured and his role as vendor of private limited companies was described .","In DATE ORG ( PERSON ) issued a warrant of arrest against ORG , who was staying abroad .","On DATE ORG issued a search warrant for the premises of the applicant , who was neither provisionally charged ( sigtet ) nor charged ( tiltalt ) . The search was carried out on DATE and the applicant was interviewed by the police without being charged .","On DATE ORG was remanded in custody , from which he escaped on DATE . He was arrested in GPE in DATE , and served a sentence there before he was surrendered to the NORP police on DATE .","In the meantime ORG had questioned the applicant on DATE . An order for surrender of details on bank accounts in GPE was issued on DATE . Another search warrant against the applicant was issued by ORG on DATE . It was carried out on DATE , and the applicant was formally charged with tax asset stripping allegedly having been committed in CARDINAL cases during DATE with a risk of loss to the ORG of CARDINAL NORP kroner ( DKK ) . PERSON was charged with tax asset stripping in CARDINAL cases . The police also investigated other persons in connection with the case , but their criminal cases were conducted separately . In DATE the applicant gave permission that the police obtain details from his accounts with his bank in GPE . The latter and account details from the bank in GPE were submitted to the police in DATE .","On the prosecutions ' request a hearing was held before ORG on DATE in order to plan the course of the proceedings . Dates for the trial were agreed on . It appears from the court records that the judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster . Counsel stated that this was not possible since they were occupied by other matters , including hearings already scheduled in other proceedings .","An indictment was issued by the prosecution on DATE and the trial before ORG commenced on DATE . CARDINAL hearings were held altogether . The applicant , ORG and CARDINAL witnesses were heard , including a state - authorised public accountant , who gave evidence over DATE in which he elaborated the audit reports , etc . In addition , a considerable amount of other documentary evidence was presented e.g. about questions such as constructions with NORP and foreign companies and money transaction in NORP and foreign banks ( in GPE , GPE and GPE ) . Each set of exhibits for the case took up CARDINAL ACARDINAL binders , which included CARDINAL audit reports , CARDINAL supplementary reports and CARDINAL statements of transaction prepared for the case by the state - authorised public accountant .","The closing speech of the applicant 's counsel took CARDINAL day , that of the ORG 's counsel a little more than two days , and that of the prosecutor DATE .","ORG , sitting with CARDINAL lay judges , met CARDINAL times and deliberated for altogether DATE . By judgment of DATE , which ran to CARDINAL pages , ORG convicted the applicant of participation in tax assets stripping as to ORG . He was sentenced to DATE imprisonment ; an amount of DKK CARDINAL was seized ; and in addition for an indefinite period , he was deprived of his right to establish or to become manager and\/or member of a director 's board in a private limited company , or in a company or an association which would require public approval . ORG was convicted by the same judgment .","ORG rejected the applicant 's complaint that the length of the proceeding had exceeded a reasonable time , stating among other things :","\u201c ... on the material before it the court can not find it established that the investigation laid unnecessary idle during the periods , on which [ the applicant ] specifically has relied [ i.e. de facto from DATE until DATE ] .","Furthermore , the court notes that the nature and scope of the offences must be taken into account when assessing the total length of the proceedings ... In this connection it should be taken into consideration that the proceedings ... have shown , inter alia , that it has been time - consuming and difficult to procure various details for the case from foreign authorities and banks in general , i.e. also during the investigation , not least concerning [ the applicant ] . The length of the proceedings is not due only to the affairs of [ ORG ] , but also due to the need [ during the investigation and the trial ] of illuminating the role of [ the applicant ] Moreover , the investigation concerning both [ ORG and the applicant ] was rendered difficult by the fact that [ ORG ] had left GPE and stayed abroad without notifying the NORP authorities of his residence in the period from DATE until DATE escaped from custody and fled abroad in the period from DATE until DATE , whereupon he was furthermore remanded in custody and served a sentence in GPE from DATE until DATE . \u201d","On DATE the applicant lodged an appeal against the judgment to ORG ( PERSON ) , before which QUANTITY hearings were held . By judgment of DATE ORG upheld ORG judgment . The appeal court also rejected the applicant 's complaint that the length of the proceeding had exceeded a reasonable time . It stated inter alia :","\u201c The High Court finds that there are no major periods of time during the proceedings with the police , the prosecutor , ORG or ORG when the case has not been duly expedited . It should be noted that it is solely due to the circumstances of [ the applicant ] and his counsel that the case could not be tried by ORG in DATE . Accordingly , and in view of the nature and the scope of the crime , which has necessitated comprehensive investigation , the total length of the proceedings does not involve any violation of LAW . \u201d ORG","On DATE the applicant requested leave to appeal against the High Court judgment to ORG ( H\u00f8jesteret ) . His request was refused by the Leave to Appeal Board ( Procesbevillingsn\u00e6vnet ) on DATE .","II .","In DATE the Police in ORG with the assistance from a special crime squad carried out investigation of several tax assets stripping cases , which resulted inter alia in CARDINAL persons being indicted in DATE . As part of the investigations accountants had been asked to draw up statements of accounts . Those were submitted on DATE and led the police 's attention to other persons involved . On DATE the applicant was provisionally charged with participation in tax assets stripping having been committed in DATE and by indictment of CARDINAL DATE prosecution was initiated against him and DATE coaccused ( the NORP case ) . On DATE the indictment was forwarded to ORG ) although the investigation had not been completed .","It emerges from the court records of DATE that the parties discussed the scheduling of the trial . The applicant 's counsel was not able to attend the trial until after DATE and some of the other counsel were unable to appear until after DATE .","By request of counsel for CARDINAL co - accused , on CARDINAL DATE ORG decided to transfer the case to ORG being the proper venue . The public prosecution appealed in vain against this decision . Thus , ORG found against the public prosecution on DATE , and the latter 's request for leave to appeal to ORG was refused by the Leave to Appeal Board on DATE .","ORG received the case on DATE .","On DATE an audit \u201c liquidity statement \u201d requested by the prosecution was completed and included in the case file .","At a court session held on DATE the trial was scheduled to commence in DATE . From the court records of CARDINAL DATE it emerges that the trial was to take place in another building rented for the purpose of trying a number of major cases before ORG , and that therefore the trial could not start until DATE . CARDINAL hearings already scheduled for DATE were maintained and reserved for various requests made by counsel . It appears , however , that the said CARDINAL hearings were subsequently cancelled . A supplementary indictment was issued on DATE .","In the period DATE and DATE altogether CARDINAL court sessions were held before ORG . The applicant , the co - accused , and CARDINAL witnesses were heard . In addition , the above \u201c liquidity statement \u201d and a considerable amount of other documentary evidence were presented , thus CARDINAL ACARDINAL binders were read out during the trial .","On DATE the case was set down for judgment , which was pronounced on DATE and ran to CARDINAL pages , and by which the applicant and the co - accused were convicted . As to the metering out the applicant 's sentence , the court found that the sentence previously imposed on the applicant , upheld by ORG on DATE ( see under PERSON ) , would not have been increased , had the CARDINAL trials against him been joined . Thus , no additional sentence was imposed on the applicant . He was , however , deprived of his right to establish or to become manager and\/or member of a director 's board in a private limited company , or in a company or an association which would require public approval .","ORG rejected the applicant 's complaint that the length of the proceeding had exceeded a reasonable time , stating among other things :","\u201c The [ crimes ] were committed in the period from DATE until DATE . Prosecution was initiated by the indictment of DATE and the supplementary indictment of DATE . The defendants were originally indicted before ORG , but the case was referred to ORG by order of CARDINAL DATE passed by ORG . This order was appealed against to ORG , which dismissed the appeal by order of DATE . On CARDINAL DATE the Leave to ORG refused to grant the prosecutor leave to appeal to ORG . ORG received the case on DATE , and during a court session held on DATE dates were fixed for the trial . [ The court sessions scheduled to take place in DATE ] were later cancelled , and the trial took place as from CARDINAL DATE and onwards .","According to the information available , the time spent on investigation and initiation of prosecution by the prosecutor can not be blamed the latter . In this connection , importance has been attached to the not uncomplicated nature of the case and to the need for investigation abroad . Accordingly , LAW has not been breached \u201d","The applicant did not appeal against the judgment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-90751","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2009,"docname":"CASE OF GAVRIEL v. TURKEY","importance":4,"conclusion":"Violation of Article 8 - Right to respect for private and family life;Violation of Article 1 of Protocol No. 1 - Protection of property","judges":"David Th\u00f3r Bj\u00f6rgvinsson;J\u00e1n \u0160ikuta;Lech Garlicki;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant was born in DATE and lives in GPE .","The applicant claimed that until DATE he and his family used to live in GPE ( GPE ) in a detached house with a yard ( area : CARDINAL sq . m ) . This property was registered in the name of the applicant \u2019s wife under plot no . CARDINAL , sheet \/ plan CARDINAL . On CARDINAL DATE , as the NORP forces were advancing , the applicant and his family fled their home leaving behind all its contents , including precious personal belongings .","The applicant also claimed that he was the owner of the following plots of land in northern GPE :","( a ) GPE \/ GPE , plot no . CARDINAL , sheet \/ plan CARDINAL , field , area : CARDINAL sq . m ;","( b ) ORG , plot no . CARDINAL\/CARDINAL , sheet \/ plan CARDINAL , field , area : CARDINAL sq . m ;","( c ) Kyrenia \/ Livera , plot no . DATE , sheet \/ plan CARDINAL , field , area : CARDINAL sq . m ;","( d ) Kyrenia \/ Livera , plot no . DATE , sheet \/ plan CARDINAL\/CARDINALWCARDINAL , field , area : CARDINAL sq . m ;","( e ) Kyrenia \/ Livera , plot no . DATE , sheet \/ plan CARDINAL\/CARDINALWCARDINAL , field , area : CARDINAL sq . m.","In support of his claim of ownership the applicant produced the relevant certificates of registration and affirmations of ownership issued by GPE .","The applicant alleged that from DATE he had not been able to return to his house and had been continuously prevented from exercising his property rights and enjoying his properties ."],"violated_articles":["8","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23078","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2003,"docname":"STR\u00d6MBLAD v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant , Mr E. Str\u00f6mblad , is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by Mr O. GPE , a lawyer practising in ORG .","The respondent Government are represented by their Agent , Mr PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is the father of CARDINAL children born in DATE , DATE and DATE respectively . The children live permanently with their mother from whom the applicant is divorced . Since they did not live with both their parents , each of his children were entitled under LAW ( lagen om underh\u00e5llsst\u00f6d , lag CARDINAL:CARDINAL -hereinafter \u201c the LAW \u201d , which entered into force on DATE ) to a DATE maintenance allowance ( underh\u00e5llsbidrag ) of SEK CARDINAL,CARDINAL from ORG . LAW obliged the parent who under civil law was liable for maintenance to repay , in whole or in part , the community \u2019s costs for the maintenance support provided to the children . The amount to be repaid was determined as a percentage of the income of the person liable for maintenance . If the liable parent had CARDINAL children , as was the applicant \u2019s case , he should repay PERCENT of his income for each child .","On DATE ORG ( f\u00f6rs\u00e4kringskassan -hereinafter \u201c the Office \u201d ) of GPE decided that the applicant should repay a total sum of SEK CARDINAL,CARDINAL every month for the community \u2019s costs for the maintenance support with respect to his CARDINAL children . In other words , the applicant should repay SEK CARDINAL per month for each child . In accordance with section CARDINAL of LAW ( as in force at the relevant time ) , the ORG determined the amount of the applicant \u2019s income as specified in the most recent tax assessment decision .","By letter of DATE the applicant requested the ORG to reconsider its decision . He argued that the ORG had failed to estimate correctly his ability to pay the amount in question and should have based its calculations on his current income , not that indicated in the most recent tax assessment decision . On DATE the ORG found that there was no ground for altering its earlier decision .","The applicant appealed to ORG ( l\u00e4nsr\u00e4tten ) of GPE . He maintained that his income was insufficient for paying the amount fixed by the ORG . He pointed out that since the calculations regarding his ability to repay maintenance support were based on his income before LAW came into force , the decision had a retroactive effect and was thus incompatible with LAW ( Regeringsformen ) . Furthermore , the ORG had calculated his income erroneously thereby obtaining a result which did not reflect his real ability to repay the maintenance support .","In his appeal the applicant also requested ORG to hold an oral hearing in the case . He wished to participate in person at an oral hearing in order to present arguments on the issue of principle in the case and on the great economic impact a judgment could have on him . He underlined that his main argument in the case was the unconstitutional retroactive application of LAW by the ORG .","On DATE ORG informed the applicant as follows :","\u201c The proceedings before [ the court ] consist of a written procedure . They may include an oral hearing with regard to a certain issue , when there is reason to assume that such a measure would be to the benefit of the proceedings or that it promotes a speedy determination of the case . An oral hearing shall be held if requested by an individual party to the proceedings , if such a hearing is not unnecessary and there are no particular reasons against it ...","... It appears that you do not wish to submit any new information at the hearing but rather conduct a legal argumentation about the retroactivity of the legislation concerned and on how your deficit from earlier GPE taxation should be taken into account when determining the amount that should be repaid . Having regard to these circumstances [ the court ] finds that the examination of the case is limited to issues concerning the application of the law . Therefore , [ the court ] finds an oral hearing unnecessary .","[ The court ] hereby gives you the opportunity to submit , no later than DATE , your final observations in the case . If no response is submitted to [ the court ] , the case will be determined on the basis of the material available . \u201d","The applicant made further submissions in the case and reiterated his request for an oral hearing , claiming that the court had failed to give any special reasons for dispensing with an oral hearing .","On DATE ORG delivered its judgment confirming the ORG \u2019s decision . It found that the calculation of the applicant \u2019s income was done in accordance with the rules set out in LAW . While it was true that the calculation of the applicant \u2019s income was based on the most recent tax assessment decision , the amount that he was obliged to repay concerned future maintenance support . Therefore , the court did not consider the decision as retroactive within the meaning of the LAW .","As regards the applicant \u2019s request for an oral hearing the ORG held :","\u201c The court can not omit to hold an oral hearing without having found after careful consideration that this is unnecessary or that there are special reasons against doing so . Considering [ the applicant \u2019s ] arguments in the case , [ the court ] finds that its examination is limited to issues concerning the application of the law . In view of this [ the court ] considers an oral hearing unnecessary . \u201d","The applicant appealed against the judgment to ORG ( kammarr\u00e4tten ) in GPE , complaining about the lack of an oral hearing before ORG and maintaining all his other submissions and requests . By decision of CARDINAL DATE ORG refused leave to appeal .","The applicant appealed to ORG ( regeringsr\u00e4tten ) which , on DATE , also refused leave to appeal .","LAW , which entered into force on DATE , applied in relation to maintenance support and duty of repayment . LAW replaced previous legislation in the relevant area .","According to LAW ( as in force at the relevant time ; DATE ) a child was entitled to maintenance support , at a rate of SEK CARDINAL,CARDINAL per month , if the parents did not live together . The parent who was liable under civil law for maintenance should repay to the ORG , in part or in whole , the amount corresponding to the maintenance support . According to its sections CARDINAL and DATE , the duty of repayment was determined as a certain percentage of the liable parent \u2019s income according to the most recent tax assessment decision after a deduction of SEK CARDINAL,CARDINAL . If the liable parent had CARDINAL children who received maintenance support , he or she should repay PERCENT of his income for each child . The duty of repayment should be reviewed when a new decision on DATE tax assessment had been taken and when there was a change in the grounds for the applicable percentage .","In the event that the liable parent considered that he or she was unable to to repay the amount fixed , he or she could appeal for respite for discharge of the duty . If there were exceptional reasons relating to the liable parent \u2019s economic or personal circumstances , ORG could remit the debt , entirely or partially , upon application from the liable parent .","A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG . Appeals to the CARDINAL latter courts are subject to leave to appeal proceedings .","The procedure in the administrative courts is governed by the provisions of ORG ( f\u00f6rvaltningsprocesslagen , lag CARDINAL:CARDINAL -hereinafter \u201c the DATE LAW ) . Section CARDINAL provides :","\u201c The proceedings are in writing .","An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .","In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . \u201d","The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .","According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .","It was further stated , in respect of the third paragraph of section CARDINAL , that a party \u2019s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party \u2019s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23341","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2002,"docname":"ZEHNALOV\u00c1 AND ZEHNAL v. THE CZECH REPUBLIC","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicants , PERSON and her husband , Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They were represented before the Court by PERSON , of ORG . At the hearing on DATE the ORG representative was assisted by Mr PERSON and PERSON , advisers . The respondent Government were represented by PERSON , GPE representative before ORG , assisted by PERSON , PERSON , PERSON , Mr J. Just and PERSON , advisers .","The facts of the case , as submitted by the parties , may be summarised as follows .","The first applicant is physically disabled .","A large number of public buildings and buildings open to the public in the applicants\u2019 home town are not equipped with access facilities for people with disabilities ( people with impaired mobility ) .","On DATE the first applicant applied to ORG ( m\u011bstsk\u00fd \u00fa\u0159ad ) under LAW , complaining that a number of public buildings and buildings open to the public in PERSON did not comply with the technical requirements laid down in Decree no . PERSON ( amended by Decree no . CARDINAL ) and in LAW ( Law no . CARDINAL , amended by Law no . CARDINAL ) . On DATE she sent a letter to the same effect to ORG ( okresn\u00ed \u00fa\u0159ad ) . On DATE the head of ORG informed her in reply that CARDINAL certificates of approval issued in respect of the buildings concerned would be reviewed . On DATE the Mayor of PERSON informed her that ORG had instructed a committee to contact disabled people \u2019s organisations in order to take the necessary measures to improve the situation regarding disabled access .","Following delays by ORG in initiating the review procedure provided for in LAW , the first applicant asked ORG ( ministerstvo hospod\u00e1\u0159stv\u00ed ) to conduct a review of its own motion . On DATE she was informed that her case would be \u201c dealt with by ORG in accordance with the law \u201d . Nevertheless , ORG did not set any deadline and ORG dismissed or took no action on most of the complaints . Although some of the obstacles complained of have since been removed , the applicants maintain that that has not been the result of pressure from the authorities . The Government contend that ORG , which had ordered an inspection , was gradually examining the CARDINAL cases before it and that ORG had examined a large number of the first applicant \u2019s suggestions . In their submission , the situation could not be remedied immediately , regard being had to the technical features of the existing buildings and the considerable cost of renovations . However , the Government point out that some improvements have been made where possible , for example as a result of negotiations with the owners of the buildings .","On DATE the applicants applied to ORG ( krajsk\u00fd soud ) under LAW for exemption from the payment of court fees . They also asked to have a lawyer assigned pursuant to LAW in order to prepare their applications for the review of the certificates of approval for CARDINAL buildings , which they had learned had been issued by ORG ( odbor v\u00fdstavby m\u011bstsk\u00e9ho \u00fa\u0159adu ) before DATE . According to the Government , the complaints the applicants were intending to lodge concerned general matters of public interest and were accordingly not admissible in the administrative courts . The applicants dispute that assertion , maintaining that their complaints related solely to obstacles in their home town with which they were confronted on a DATE basis .","On DATE ORG refused the applicants\u2019 application on the ground that it had no prospect of success within the meaning of LAW as it did not satisfy the requirements laid down in LAW and the applicants had not been parties to the proceedings before the administrative authorities which had resulted in the issuing of the certificates of approval .","On DATE the applicants appealed to ORG ( Vrchn\u00ed soud ) . They again asked to be exempted from the court fees and to have a lawyer assigned , relying , in particular , on LAW z\u00e1kladnich pr\u00e1v a svobod ) and on LAW . They also called on ORG to stop discrimination against people with disabilities .","In a decision of DATE the ORG declined jurisdiction on the ground that , pursuant to Article CARDINAL \u00a7 CARDINAL of LAW , no appeal lay against ORG decision .","On DATE the applicants appealed to ORG . They complained , in particular , that although Decree no . CARDINAL laid down the general technical specifications for public buildings or buildings open to the public with a view to ensuring that people with impaired mobility could have access to and make use of them , many buildings in PERSON did not comply with those requirements and were therefore not accessible to people with disabilities . They mentioned , in particular , the post office , the police stations , the customs office , ORG , the district social - security office , cinemas , ORG , various lawyers\u2019 offices , most specialist ORG surgeries and the town swimming pool . They also submitted that their applications for a review of the certificates of approval had not been dealt with in a competent or satisfactory manner by the administrative authorities . They asked the court to review the constitutionality of section CARDINAL(CARDINAL ) of LAW , by which they were prevented from taking part in proceedings before the administrative authorities at the construction stage , and also to review the decisions by which ORG and ORG had refused to exempt them from the court fees and to assign a lawyer to present their case \u2013 decisions which , in their submission , amounted to a violation of LAW . According to the Government , the purpose of their appeal was simply to ascertain whether ORG decision against them had precluded the possibility of judicial review of their case .","On DATE the applicants applied for legal aid and asked to have a lawyer assigned to represent them in ORG . On DATE ORG informed them that they satisfied the requirements for obtaining legal aid but would receive it only if their constitutional appeal was not dismissed on procedural grounds or as being unfounded , as provided in section CARDINAL of LAW .","In a decision of DATE ORG dismissed the ORG appeal . It noted , firstly , that they were not entitled to challenge the constitutionality of LAW of LAW since that provision had not been applied by ORG , and , secondly , that the decisions complained of did not disclose any breach of constitutional law or of any other legal provisions or international treaties .","By section DATE , a constitutional appeal may be lodged by any natural or juristic person who claims that a final decision given in proceedings to which he or she was a party , or a measure or any other action taken by a public authority , has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law or an international treaty within the meaning of LAW . The appeal must be lodged within DATE of the date on which the final decision was served in respect of the final remedy provided for by law or , if no such remedy exists , of the date of the event forming the subject matter of the constitutional appeal .","By section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL ) , the parties to proceedings relating to building work are the builder and the natural and juristic persons with a right of property or other rights over the land or any adjacent buildings which might be affected by the issuing of a building permit . LAW ) provides that the parties to proceedings relating to the issuing of a certificate of approval are the builder and the user of the building , if his or her identity is already known .","Section CARDINAL(CARDINAL ) provides that the building authority should not issue a certificate of approval in respect of a public building if people with disabilities have no access to the areas open to the public and are therefore unable to use them .","Decree no . CARDINAL\/CARDINAL on the general technical specifications for the use of buildings by people with impaired mobility , subsequently replaced by Decree no . CARDINAL of ORG , which came into force on DATE , contains provisions designed to ensure proper disabled access to public buildings and buildings open to the public ( such as : offices used for administrative or management purposes or for the provision of services ; shops ; catering facilities ; sports facilities ; cultural , health and welfare institutions ; public communications facilities ; and hotels and motels ) and the elimination of all architectural barriers .","By LAW , a party to proceedings who satisfies the requirements for exemption from court fees may have a lawyer assigned where this is necessary for the protection of his or her rights .","By LAW , the presiding judge may fully or partly exempt a party to the proceedings from the payment of court fees where this is justified by the party \u2019s circumstances , provided that the action brought is not arbitrary or manifestly devoid of any prospect of success .","Article CARDINALb \u00a7 CARDINAL provides that an administrative appeal ( spr\u00e1vn\u00ed \u017ealoba ) against a decision by an administrative authority must be lodged within DATE of the decision in issue , except where the law provides otherwise .","By LAW , an administrative appeal may be lodged by a natural or juristic person who , as a party to proceedings before an administrative authority , claims to have been adversely affected by a decision taken by that authority . An appeal may also be lodged by a natural or juristic person who was not treated as a party to the proceedings before the administrative authority but should have been .","LAW and CARDINAL of LAW provides that a final decision by an administrative authority may be reviewed by a higher administrative authority acting of its own motion or otherwise . The administrative decision in issue must be quashed or varied where it is found to have breached the law .","LAW guarantees the right to social and medical assistance . It provides that , with a view to ensuring the effective exercise of the right to social and medical assistance , the Contracting Parties are to undertake to : ( CARDINAL ) ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources , in particular by benefits under a social - security scheme , is granted adequate assistance , and , in case of sickness , the care necessitated by his condition ; ( CARDINAL ) ensure that persons receiving such assistance do not , for that reason , suffer from a diminution of their political or social rights ; and ( CARDINAL ) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent , to remove , or to alleviate personal or family want .","Recommendation No . R ( CARDINAL ) CARDINAL of ORG on a coherent policy for people with disabilities , adopted on DATE , defines a handicap as","\u201c ... a disadvantage , for a given individual , resulting from an impairment or a disability , that limits or prevents the fulfilment of a role that is normal ( depending on age , sex , and social and cultural factors ) for that individual \u201d .","The Recommendation urges member ORG to \u201c guarantee the right of people with disabilities to an independent life and full integration into society , and recognise society \u2019s duty to make this possible \u201d so as to ensure \u201c equality of opportunity \u201d for people with disabilities . The public authorities should aim , inter alia , to enable people with disabilities \u201c to have as much mobility as possible , and access to buildings and means of transport \u201d and \u201c to play a full role in society and take part in economic , social , leisure , recreational and cultural activities \u201d .","As regards leisure time and cultural activities in particular , the LAW states :","\u201c All leisure , cultural and holiday activities should be made accessible to people with disabilities . ... Structural , technical , physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed . In particular , access to cinemas , theatres , museums , art galleries , tourist venues and holiday centres should be improved ... Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities . \u201d","The ORG also states : \u201c The exercise of basic legal rights of people with disabilities should be protected , including being free from discrimination . \u201d","In addition , Recommendation CARDINAL ( DATE ) on rehabilitation policies for the disabled , adopted by ORG of ORG DATE , emphasises : \u201c ORG has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives . \u201d In furtherance of that aim , it calls on the governments and agencies concerned \u201c to strive for and encourage genuine active participation by disabled people ... in the community and society \u201d and , to that end , to guarantee , amongst other things , \u201c ease of access to buildings \u201d .","The revised NORP Social Charter , adopted by ORG on DATE DATE and opened for signature on DATE , provides in DATE , entitled \u201c The right of persons with disabilities to independence , social integration and participation in the life of the community \u201d :","\u201c With a view to ensuring to persons with disabilities , irrespective of age and the nature and origin of their disabilities , the effective exercise of the right to independence , social integration and participation in the life of the community , the Parties undertake , in particular :","...","NORP to promote their full social integration and participation in the life of the community , in particular through measures , including technical aids , aiming to overcome barriers to communication and mobility and enabling access to transport , housing , cultural activities and leisure . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75997","languageisocode":"ENG","respondent":"LVA","branch":"CHAMBER","date":2006,"docname":"CASE OF KAFTAILOVA v. LATVIA","importance":2,"conclusion":"Violation of Art. 8","judges":"Christos Rozakis","text":["The applicant , who is of NORP origin , was born in DATE in GPE and has lived in GPE ( GPE ) since DATE . She was a NORP national until DATE and now has no nationality .","NORP In DATE the applicant , who was living in GPE at the time , married a NORP civil servant employed by ORG . In DATE the couple had a daughter , born in GPE . In DATE the applicant and her family settled in NORP territory .","NORP In DATE the applicant \u2019s husband was granted the right , in a professional capacity , to rent a room in a \u201c duty residence \u201d in GPE . In DATE he exchanged the accommodation he had previously been renting in GPE ) for the right to rent a ORG - owned flat in GPE . He and his family moved in straight away .","On DATE the applicant cancelled her formal registration of residence ( known at the time as \u043f\u0440\u043e\u043fuc\u043aa in NORP and pieraksts or dz\u012bvesvietas re\u0123istr\u0101cija in NORP ) in PERSON ( GPE ) . On DATE the applicant \u2019s husband registered her , without her knowledge or consent , as resident at the family \u2019s new address in GPE . In DATE he registered his own residence at that address .","In the meantime , in DATE , the applicant lodged a complaint with the relevant local authority concerning her residence registration , arguing that her husband had registered her residence unlawfully without informing her . Consequently , on DATE , her name was removed from the register in question . Her minor daughter , however , continued to be registered at her father \u2019s address until DATE .","In DATE the applicant and her husband divorced .","In DATE GPE regained full independence . In DATE GPE , the State of which the applicant had hitherto been a national , broke up . The applicant therefore became stateless .","By a final judgment of CARDINAL DATE ORG granted the applicant the right to rent the room obtained by her former husband in a \u201c duty residence \u201d in DATE . Shortly afterwards , still in DATE , the applicant requested ORG ( GPE ministrijas GPE un imigr\u0101cijas departaments \u2013 \u201c the GPE \u201d ) to enter her name in the register of residents ( ORG re\u0123istrs ) as a permanent resident of GPE . In her request , however , she gave the address at which her ex - husband had unlawfully registered her , rather than the address in GPE at which she then lived . The Government explained that this had been a case of mistaken interpretation of the law on the register of residents , CARDINAL which had had farreaching consequences , having led to the loss of the applicant \u2019s legal status in GPE .","The GPE granted the applicant \u2019s request . In DATE her daughter obtained the same registration as her mother . However , by a decision of DATE , the ORG cancelled the applicant \u2019s registration on the ground that the stamp in her passport was false . The file was immediately forwarded to the NORP district prosecutor who , in a decision of DATE , decided not to institute criminal proceedings against the applicant . The prosecutor found that the registration stamp was authentic , but had been placed in the passport by the authorities in breach of the relevant regulations . The prosecutor concluded that , although the applicant \u2019s registration of residence was not valid , she could not be charged with forgery or use of forged documents .","On DATE the ORG removed the applicant \u2019s name from the register of residents and cancelled her personal identification code ( personas kods ) . On DATE the same action was taken in respect of the applicant \u2019s minor daughter .","On DATE ORG of ORG allowed a third - party appeal by ORG and quashed the final judgment of DATE concerning the applicant \u2019s right to rent the room she was living in . The case was therefore referred back to GPE , which , in an order of DATE , decided \u201c not to examine the case \u201d .","On DATE the ORG served a deportation order ( izbrauk\u0161anas r\u012bkojums ) on the applicant , ordering her to leave GPE with her daughter by DATE . ORG had discovered that , on DATE , the decisive date laid down by the Aliens and ORG ( \u201c LAW \u201d ) , the applicant had not had an officially registered permanent residence in GPE . Under the terms of the first paragraph of ORG decision on the arrangements for entry into force and application of that LAW ( see paragraph CARDINAL below ) , she ought therefore to have applied for a residence permit within DATE of the date of entry into force , failing which she would be made the subject of a deportation order ; the applicant , however , had omitted to do this .","Having lodged an administrative appeal with the head of ORG , without success , the applicant applied to ORG seeking to have the order for her deportation set aside and to have her name re - entered in the register of residents .","By a judgment of CARDINAL DATE the court of first instance rejected the application . The court found that , since the registration of the applicant \u2019s residence in GPE had never been valid , she did not fall within the scope of the LAW on the Status of Former GPE Citizens without NORP or other Citizenship ( \u201c LAW \u201d ) ; she was therefore illegally resident in GPE . The applicant lodged an appeal on points of law against this judgment with ORG . The latter , in a final judgment of CARDINAL DATE , dismissed the appeal on the same grounds as the lower court .","In DATE the applicant made a fresh application for a residence permit to the ORG ; the application was rejected .","Following the entry into force on DATE of amendments to section CARDINAL of LAW , the applicant requested the head of ORG Nationality and Migration Directorate ( GPE ministrijas GPE un migr\u0101cijas lietu p\u0101rvalde \u2013 \u201c the ORG \u201d ) , which had succeeded the ORG , to regularise her stay in accordance with LAW . When her request was refused , she lodged a fresh application with GPE . In her memorial she stressed in particular that she had been living in GPE for DATE and that she and her daughter had no other country to move to .","NORP In a judgment of CARDINAL DATE the district court rejected the application . It held that the applicant did not satisfy the conditions laid down in section CARDINAL(CARDINAL ) of LAW since , on DATE , she had not had a valid registration of residence in GPE . Furthermore , on that date , she had been resident in NORP territory for DATE rather than the required DATE . With specific regard to whether the registration of the applicant \u2019s residence in GPE was null and void , the court referred to the arguments and findings set out in ORG judgment of DATE , which had become final .","The applicant appealed against the judgment before ORG . In a judgment of DATE following adversarial proceedings , the regional court also found against the applicant , endorsing in substance the reasoning of the court of first instance . The applicant then lodged an appeal on points of law with the ORG of ORG . In a final order of DATE the ORG , in a preparatory sitting ( r\u012bc\u012bbas s\u0113de ) held in private , declared the appeal inadmissible for lack of arguable legal grounds .","Meanwhile , on DATE , the applicant made a third application for regularisation to the ORG , requesting it to grant her \u201c the right to reside legally in GPE \u201d . Her application was rejected .","In a letter of CARDINAL DATE to ORG , the director of ORG ( NORP cilv\u0113kties\u012bbu birojs ) expressed support for the applicant \u2019s cause and requested the ORG to regularise her stay in GPE . The letter received no reply .","In DATE the head of the ORG decided to reopen the file concerning the applicant \u2019s daughter , who was then DATE . He noted in particular that , on DATE , she had been registered at her father \u2019s address as a \u201c permanently resident non - citizen \u201d of GPE , and that she therefore fulfilled the requirements of LAW . Accordingly , in DATE , the ORG issued the applicant \u2019s daughter with a passport based on the status of \u201c permanently resident noncitizen \u201d , re - entered her name in the register of residents and gave her a new personal identification code .","By Decree no . CARDINAL of ORG of DATE , the applicant \u2019s daughter became a naturalised NORP citizen ( paragraph CARDINAL of the Decree ) .","On DATE the ORG sent a letter to the applicant which read as follows :","\u201c ... The Directorate ... has taken note of the final decision of ORG ( First Section ) ... on the admissibility of the application in the case of PERSON v. GPE .","The ORG has explored the options currently available under NORP legislation which might make it possible to regularise your stay in GPE ; it therefore invites you to take this opportunity to have your legal status in GPE determined and to obtain a residence permit .","On DATE a deportation order was served on you under LAW of the [ Aliens ] Act , requesting you to leave NORP territory by DATE . The deportation order has not been enforced , nor have any measures been taken with a view to its enforcement . Section CARDINAL(CARDINAL ) of LAW ... currently in force stipulates that \u2018 an administrative act may not be enforced if DATE have elapsed since it became DATE ... In view of the fact that , under the previously existing rules , enforcement of the deportation order was not stayed , and that you did not comply with it , enforcement is no longer possible .","ORG , in force prior to DATE [ DATE ] , made no provision for granting stateless person status to persons illegally resident in GPE . Accordingly , the ORG did not invite you to submit the papers required to obtain that status .","LAW which entered into force on DATE replaced ORG ... The conditions for the granting of stateless person status laid down by the [ new ] Act differ from those contained in the [ old ] Act .","Under Section CARDINAL(CARDINAL ) of LAW , a person may be granted stateless person status ... if no other ORG has recognised him or her as a national in accordance with its own laws . Under section CARDINAL(CARDINAL ) of the LAW , persons not covered by LAW DATE relating to ORG can not be recognised as stateless persons ...","In accordance with section CARDINAL(CARDINAL ) of LAW , in order to be recognised as a stateless person , the individual concerned must submit to the ORG :","( CARDINAL ) a [ written ] application ;","( CARDINAL ) an identity document ;","( CARDINAL ) a document issued by a competent body in the foreign ORG , to be determined by the ORG , certifying that the person concerned is not a national of that ORG and is not guaranteed nationality of that ORG , or a document certifying the impossibility of obtaining such a document .","In view of the fact that you were born in GPE and are of NORP ethnic origin and the fact that , prior to your arrival in GPE , you had been living in GPE ... , it is essential ... to ascertain that you are not recognised as a national of GPE or of GPE or guaranteed the right to nationality of those countries in accordance with their laws . Accordingly , to enable us to take a decision granting you stateless person status , you must provide [ us ] with a document issued by the competent bodies in GPE and GPE to the effect that you are not a national of those countries and that you are not guaranteed the right to such nationality , or with a document certifying the impossibility of obtaining such a document .","Under section DATE ) of LAW , stateless persons must reside in GPE in accordance with the rules laid down by LAW , that is to say , on the basis of a residence permit or , at least , a visa .","Having considered the circumstances of your case , we are prepared , once we have determined your legal status and obtained the necessary documentation ... , to address an opinion to the Minister of the ORG proposing that you be issued with a permanent residence permit , in accordance with section CARDINAL(CARDINAL ) of LAW ... \u201d","The ORG then listed the documents to be submitted by the applicant to her local department and indicated the usual period of validity of each document . The letter went on as follows :","\u201c Once you have been recognised as a stateless person and been issued with a residence permit ... , your personal data will be entered in the register of residents and you will receive a personal identification code .","In the ORG \u2019s view , this is the only basis on which you can obtain a permanent residence permit , given the circumstances of your case ... That being so , the ORG , in addressing its opinion to the Minister of the ORG , will draw the Minister \u2019s attention to the fact that issuing you with a permanent residence permit would be compatible with the aspects [ sic ] of a NORP society , while maintaining the fair balance to be struck between the restriction of individual rights and the benefits to society of that restriction . The aim is to ensure that you have the right to conduct your private and family life without hindrance .","The ORG would draw your attention to the fact that no one can be recognised as a stateless person or obtain a residence permit on a unilateral basis . You must therefore express a personal interest by making an application to that effect . In the view of the ORG , ... the solution outlined above corresponds to your interests , would remove the threat of deportation in the future and would enable you to exercise your right to private and family life without any great restrictions ; moreover , in accordance with LAW , you could aspire to NORP citizenship by naturalisation .","In view of the above , we invite you to contact the ORG and submit the necessary documents to it , so that ... your legal status can be determined and ... the Minister of the ORG can take a decision on the issuing of a permanent residence permit . ... \u201d","At the end of the letter the ORG gave the telephone numbers of the officials to whom the applicant should address any further queries concerning the regularisation of her status .","By Decree no . CARDINAL of DATE , ORG instructed the Minister of the ORG to issue the applicant with a permanent residence permit \u201c once the documents required to make such an application have been received \u201d ( LAW . At the same time the Minister of ORG was instructed to have the ORG \u2019s decision of DATE on the admissibility of the present application translated into NORP , and to have the translation published in ORG ( Article CARDINAL ) .","It is clear from the applicant \u2019s explanations that she did not take the steps indicated by the ORG and that she continues to reside illegally in GPE .","NORP legislation on nationality and immigration distinguishes several categories of persons , each with a specific status .","( a ) NORP citizens ( Latvijas Republikas pilso\u0146i ) , whose legal status is governed by LAW ( GPE likums ) ;","( b ) \u201c permanently resident non - citizens \u201d ( nepilso\u0146i ) \u2013 that is , citizens of the former GPE who lost their NORP citizenship following the break - up of the GPE in DATE , but have not subsequently obtained any other nationality DATE who are governed by LAW ( see paragraph CARDINAL below ) ;","( c ) asylum - seekers and refugees , whose status is governed by LAW ( Patv\u0113ruma likums ) ;","( d ) \u201c stateless persons \u201d ( bezvalstnieki ) in the narrow and specific sense of the term . Prior to DATE their status was governed by ORG , read in conjunction with LAW ( see paragraphs CARDINAL and DATE below ) and , after DATE , with LAW ( see paragraph CARDINAL below ) . Since DATE their status has been governed by the new LAW ( see paragraph CARDINAL below ) , also read in conjunction with LAW ;","( e ) \u201c aliens \u201d in the broad sense of the term ( \u0101rzemnieki ) , including foreign nationals ( \u0101rvalstnieki ) and stateless persons ( bezvalstnieki ) falling solely within the ambit of LAW ( before DATE ) , and LAW ( after DATE ) .","The relevant provisions of the LAW of DATE on the Status of Former GPE Citizens without NORP or other Citizenship ( Likums \u201c ORG to biju\u0161o ORG pilso\u0146u statusu , kuriem nav Latvijas vai citas valsts pilson\u012bbas \u201d ) read as follows :","[ Version in force before DATE ] : \u201c This Act governs citizens of the former GPE resident in GPE ... , who were resident within NORP territory prior to DATE and whose residence is registered there , regardless of the status of their housing , and who are not citizens of GPE or any other ORG ; it also governs the minor children of such persons who are not citizens of GPE or any other ORG . \u201d","[ Version in force since DATE ] : \u201c The persons governed by this LAW \u2018 non - ORG \u2013 shall be citizens of the former GPE who are resident in GPE ... , and their children , who satisfy all the following criteria :","( CARDINAL ) on DATE they were registered as being resident within the territory of GPE , regardless of the status of their housing ; or their last registered place of residence on DATE was in GPE ; or a court has established that before the above - mentioned date they had been resident within NORP territory for not less than DATE ;","( CARDINAL ) they do not have NORP citizenship ;","( CARDINAL ) they are not and have not been citizens of any other ORG . ... \u201d","...","\u201c ... [ LANGUAGE shall have the right :","...","The specific status of \u201c stateless person \u201d ( bezvalstnieks ) was established by ORG NORP \u201c ORG bezvalstnieka statusu Latvijas NORP \u201d ) of DATE . The Act remained in force until DATE , when it was replaced by LAW likums ) of DATE .","Section CARDINAL(CARDINAL ) of the DATE Act read as follows :","\u201c The status of stateless person may be granted to persons whose status is not defined either by LAW on the Status of Former GPE Citizens without NORP or other Citizenship or by LAW , provided they","...","( CARDINAL ) are legally resident in GPE . \u201d","The relevant provisions of the new LAW read as follows :","\u201c In GPE , an individual may be recognised as a stateless person if no other ORG has recognised him or her as a national in accordance with its own laws . \u201d","\u201c CARDINAL . In GPE , an individual not falling within the scope of LAW DATE relating to ORG may not be recognised as a stateless person .","An individual whose status is governed by the [ Non - Citizens ] Act may not be recognised as a stateless person . \u201d","\u201c CARDINAL . In order to be recognised as a stateless person , the individual concerned must submit to the [ Directorate ] :","( CARDINAL ) a [ written ] application ;","( CARDINAL ) an identity document ;","( CARDINAL ) a document issued by a competent body in the foreign ORG , to be determined by the ORG , certifying that the person concerned is not a national of that ORG and is not guaranteed nationality of that ORG , or a document certifying the impossibility of obtaining such a document .","Where the individual concerned is unable to produce CARDINAL of the documents referred to in points CARDINAL or CARDINAL of the first paragraph , an official instructed by the head of the ORG shall decide whether or not to grant him or her the status of stateless person . The decision shall be taken on the basis of information available to the ORG supported by documentary evidence . \u201d","\u201c ...","NORP The person [ concerned ] may appeal to the head of the ORG against the decision [ concerning the granting of stateless person status ] .","NORP The person [ concerned ] may lodge an application with the courts challenging the decision by the head of the Directorate . \u201d","\u201c CARDINAL . The stateless person shall reside in GPE in accordance with the provisions of LAW . \u201d","The relevant provisions of the Aliens and ORG of DATE ( NORP \u201c ORG \u0101rvalstnieku un bezvalstnieku iece\u013co\u0161anu un uztur\u0113\u0161anos GPE ) , in force prior to CARDINAL DATE , read as follows :","\u201c Any foreigner or stateless person shall be entitled to stay in GPE for DATE [ version in force since CARDINAL DATE : \u2018 DATE in the course of CARDINAL of a calendar PERSON ] , provided that he or she has obtained a residence permit in accordance with the provisions of this LAW . ... \u201d","\u201c Aliens or stateless persons may be issued with ...","( CARDINAL ) a temporary residence permit ;","( CARDINAL ) a permanent residence permit . ... \u201d","\u201c Permanent residence permits may be obtained by aliens who , on DATE , were officially registered as being resident for an indefinite period within GPE if , at the time of applying for a permanent residence permit , they are officially registered as being resident within GPE and are entered in the register of residents . \u201d","\u201c No residence permit shall be issued to a person who","...","( CARDINAL ) was deported from GPE during DATE preceding the application ;","( CARDINAL ) has knowingly supplied false information in order to obtain such a permit ;","( CARDINAL ) is in possession of false or invalid identity or immigration documents ;","... \u201d","\u201c The head of the ORG or of the regional office of the ORG shall issue a deportation order ...","...","( CARDINAL ) if the alien or stateless person ... is in the country without a valid visa or residence permit ; ... \u201d","\u201c The individual concerned shall leave the territory of GPE within DATE after the deportation order has been served on him or her , provided that no appeal is lodged against the order in accordance with this section .","Persons in respect of whom a deportation order is issued may appeal against it within DATE to the head of the ORG , who shall extend the residence permit pending consideration of the appeal .","An appeal against the decision of the head of the ORG shall lie to the court within whose territorial jurisdiction the ORG \u2019s headquarters are situated , within DATE after the decision has been served . \u201d","NORP The decision of ORG of DATE on the arrangements for entry into force and application of LAW gave details of the scope of the LAW . In particular , the first paragraph required foreign nationals and stateless persons resident in GPE on the date of the LAW \u2019s entry into force , but with no permanent registration of residence , to apply for a residence permit within DATE , failing which they would be served with a deportation order .","Since DATE LAW cited above is no longer in force ; it was repealed and replaced by LAW ( GPE likums ) of DATE . The relevant provisions of the new Act read as follows :","\u201c The present Act uses the following definitions :","an alien [ \u0101rzemnieks ] \u2013 a person who is neither a NORP citizen nor a \u201c [ permanently resident ] non - citizen \u201d of GPE ; ... \u201d","\u201c In cases not covered by the present Act , a permanent residence permit shall be granted by the Minister of the ORG , where it accords with the interests of the ORG . \u201d","\u201c ... When the time - limit set down [ for submitting an application for a residence permit ] has passed , the head of the ORG may authorise [ the person concerned ] to submit the [ relevant ] documents , where such authorisation accords with the interests of ORG , or on grounds of force majeure or humanitarian grounds . \u201d","\u201c CARDINAL . Within DATE of establishment of the facts detailed in the first and second subparagraphs of the present paragraph , ... the [ relevant ] official of the ORG shall take a forcible expulsion decision ... , where :","( CARDINAL ) the alien has not left GPE within DATE of receiving the deportation order ... , and has not appealed against the order to the head of the Directorate ... , or the head of the ORG has dismissed the appeal ;","...","NORP In the cases referred to in the first subparagraph of paragraph CARDINAL of this section , no appeal shall lie against the forcible expulsion decision ...","...","In the event of a change of circumstances , the head of the ORG may set aside a forcible expulsion decision . \u201d","Section CARDINAL(CARDINAL ) of LAW ( NORP procesa likums ) , in force since DATE , provides :","\u201c An administrative act may not be enforced if DATE have elapsed since it became enforceable . In calculating the limitation period , any period during which implementation of the administrative act was suspended shall be deducted . \u201d"],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58365","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF HASHMAN AND HARRUP v. THE UNITED KINGDOM","importance":1,"conclusion":"Not necessary to examine Art. 11;Violation of Art. 10;Costs and expenses award - Convention proceedings","judges":"Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown","text":["On DATE the applicants blew a hunting horn and engaged in hallooing with the intention of disrupting the activities of the PERSON . A complaint was made to the PERSON magistrates that the applicants should be required to enter into a recognisance with or without sureties to keep the peace and be of good behaviour pursuant to the Justices of LAW .","The applicants were bound over to keep the peace and be of good behaviour in the sum of MONEY for DATE on DATE . They appealed to ORG , which heard their appeals on DATE at GPE .","ORG , comprising a ORG judge and CARDINAL magistrates , found that the applicants had not committed any breach of the peace and that their conduct had not been likely to occasion a breach of the peace . It found the following facts :","\u201c ( a ) On DATE , PERSON , a joint Master of PERSON , saw the [ applicants ] in the environs of ORG , and heard the sound of a hunting horn being blown from that position . Later , at CARDINAL p.m. , he saw the [ applicants\u2019 ] car on LOC and again heard the sound of a hunting horn being blown . On that occasion he also heard [ the second applicant ] hallooing . Some hounds were drawn towards the [ applicants ] , and hunt staff had to be deployed to recover them .","( b ) At TIME , a solitary hound ran out of PERSON \u2019s PERSON along FAC . It suddenly , and for no apparent reason , ran across the road and was killed by a lorry travelling in the direction of ORG .","( c ) At TIME , [ the first applicant ] stated to a police constable that he had been blowing a hunting horn , but nowhere near where the hound was killed . The police officer seized the hunting horn .","( d ) Iwerne Hill is QUANTITY from where the hound was killed , and , at the time of its death , it was travelling away from the hunt and away from LOC .","( e ) On their own admissions each [ applicant ] was a hunt saboteur . [ The first applicant ] admitted that he had blown the horn and [ the second applicant ] that she shouted at hounds . Their object was to distract hounds from hunting and killing foxes .","( f ) An expert , a Mr A. Downes , told us that he had observed hunts for DATE and had frequently seen hounds running loose on the road away from the main pack . In his opinion , this caused danger to hounds and to other users of the road . \u201d","On the basis of these facts , ORG was of the following opinion :","\u201c ( a ) The [ applicants\u2019 ] behaviour had been a deliberate attempt to interfere with the PERSON and to take hounds out of the control of the huntsman and the whippersin .","( b ) That in this respect the actions of the [ applicants ] were unlawful , and had exposed hounds to danger .","( c ) That there had been no violence or threats of violence on this occasion , so that it could not be said that any breach of the peace had been committed or threatened .","( d ) That the [ applicants ] would repeat their behaviour unless it were checked by the sanction of a bind over .","( e ) That the [ applicants\u2019 ] conduct had been contra bonos mores .","( f ) That NORP v. PERSON [ see below ] was distinguishable in that it related to the power of arrest for breach of the peace , which could only be exercised if there was violence or the immediate likelihood of violence .","( g ) That the power to bind over \u2018 to keep the peace and be of good ORG was wider than the power of arrest and could be exercised whenever it was proved either that there had been a breach of the peace or that there had been behaviour contra bonos mores , since a breach of the peace is ex hypothesi contra bonos mores , and the words \u2018 to keep the NORP added nothing to what was required of the defendant by the words \u2018 to be of good ORG . \u201d","The court noted that neither ORG report on binding over nor LAW was part of domestic law .","The ORG judge agreed to state a case to ORG , but legal aid for the case stated was refused on DATE . The ORG appeals against the decisions were dismissed on DATE .","Breach of the peace DATE which does not constitute a criminal offence ( NORP v. GPE ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) DATE is a common - law concept of great antiquity . However , as Lord PERSON , giving judgment in ORG in the case of NORP v. PERSON ( [ DATE ] CARDINAL Queen \u2019s Bench Reports CARDINAL ) , remarked in DATE :","\u201c A comprehensive definition of the term \u2018 breach of the peace\u2019 has very rarely been formulated \u2026 \u201d ( p. CARDINAL )","He continued :","\u201c We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault , an affray , a riot , unlawful assembly or other disturbance . \u201d ( p. CARDINAL )","In a subsequent case before ORG ( PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Mr Justice PERSON followed ORG in holding that there must be a risk of violence before there could be a breach of the peace . However , it was not essential that the violence be perpetrated by the defendant , as long as it was established that the natural consequence of his behaviour would be to provoke violence in others :","\u201c The conduct in question does not itself have to be disorderly or a breach of the criminal law . It is sufficient if its natural consequence would , if persisted in , be to provoke others to violence , and so some actual danger to the peace is established . \u201d ( p. DATE )","In PERSON and PERSON v. Director of Public Prosecutions ( [ DATE ] CARDINAL Justice of ORG ) , Lord Justice PERSON stated :","\u201c \u2026 the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable \u2013 as of course , it would be if the defendant \u2019s conduct was not merely lawful but such as in no material way interfered with the other \u2019s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . \u201d ( p. CARDINAL )","Behaviour contra ORG mores has been described as \u201c conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens \u201d ( per Lord Justice PERSON in ORG v. ORG [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .","In NORP v. PERSON , ex parte PERSON ( [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ORG rejected the view that a person could not be bound over to be of good behaviour when there was no reason to apprehend a breach of the peace . As in the case of binding over to keep the peace , there had to be some reason to believe that there might be a repetition of the conduct complained of before an order to be of good behaviour could be made .","Magistrates have powers to \u201c bind over \u201d under LAW DATE ( \u201c the DATE LAW ) , under common law and under LAW ( \u201c the GPE \u201d ) .","A binding - over order requires the person bound over to enter into a \u201c recognisance \u201d , or undertaking secured by a sum of money fixed by the court , to keep the peace or be of good behaviour for a specified period of time . If he or she refuses to consent to the order , the court may commit him or her to prison , for DATE in the case of an order made under LAW or for an unlimited period in respect of orders made under LAW or common law . If an order is made but breached within the specified time period , the person bound over forfeits the sum of the recognisance . A binding - over order is not a criminal conviction ( NORP v. GPE Quarter Sessions , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) .","Section CARDINAL of the CARDINAL Act provides :","\u201c ( CARDINAL ) The power of a GPE court on the complaint of any person to adjudge any other person to enter into a recognisance , with or without sureties , to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint .","\u2026","( CARDINAL ) If any person ordered by a GPE court under subsection ( CARDINAL ) above to enter into a recognisance , with or without sureties , to keep the peace or to be of good behaviour fails to comply with the order , the court may commit him to custody for a period not exceeding DATE or until he sooner complies with the order . \u201d","In addition to the statutory procedure , magistrates have powers to bind over at common law and under LAW . These powers allow magistrates , at any stage in proceedings before them , to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra DATE . It is not open to the justices to attach specific conditions to a binding - over order ( PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ; PERSON v. Chief Constable of GPE [ DATE ] Criminal Law Review DATE ) .","An order of the magistrates to require a person to enter into a recognisance to keep the peace or to be of good behaviour can be appealed either to ORG or ORG . An appeal to ORG is limited to questions of law , and proceeds by way of \u201c case stated \u201d . An appeal to ORG , under ORG from Binding - Over Orders ) Act DATE , section CARDINAL , proceeds as a rehearing of all issues of fact and law .","NORP In response to a request by the Lord Chancellor to examine binding - over powers , ORG ( the statutory law reform body for GPE and GPE ) published in DATE its report entitled \u201c Binding Over \u201d , in which it found that :","\u201c CARDINAL NORP We regard reliance on contra bonos mores as certainly , and breach of the peace as very arguably , contrary to elementary notions of what is required by the principles of natural justice when they are relied on as definitional grounds justifying the making of a binding - over order . Because an order binding someone to be of good behaviour is made in such wide terms , it fails to give sufficient indication to the person bound over of the conduct which he or she must avoid in order to be safe from coercive sanctions \u2026","\u2026","CARDINAL NORP We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour . These objections are , in summary , that the conduct which can be the ground for a bindingover order is too vaguely defined ; that binding - over orders when made are in terms which are too vague and are therefore potentially oppressive ; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous ; that orders which restrain a subject \u2019s freedom can be made without the discharge of the criminal , or indeed any clearly defined , burden of proof ; and that witnesses , complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them . \u201d ( Law Commission Report no . CARDINAL )","ORG recommended abolition of the power to bind over ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-106587","languageisocode":"ENG","respondent":"GEO","branch":"CHAMBER","date":2011,"docname":"CASE OF GOGINASHVILI v. GEORGIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 3 (substantive aspect)","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant , a former police officer , was arrested on the NORP - Turkish border on suspicion of smuggling drugs into GPE . According to the record of the applicant \u2019s body search carried out on the spot , CARDINAL FAC pills were found in a pocket of his jacket . He signed the record , noting in his own handwriting that he did not object to being searched in the absence of a lawyer . The applicant exercised his right to remain silent at that time , as well as during an examination he underwent as a suspect the following day .","On DATE the applicant was charged with trafficking substances analogous to , or precursors of , narcotic drugs ( Articles CARDINAL and CARDINAL of LAW ) . Questioned on DATE in the presence of his advocate , the applicant agreed to testify . He confessed to the crime , naming his accomplices , including a high - level official of the anti - drug department of ORG of the ORG , who had allegedly been covering up their illicit dealings . Subsequently , the investigation authority arrested the named persons , some of whom confessed to the drug trafficking . Other relevant evidence , including transcripts of taped telephone conversations between some of the suspects , was also added to the criminal file .","On DATE the applicant and his accomplices were convicted of the above - mentioned drug offence . During the trial , the applicant retracted his previous self - incriminating statements and claimed innocence , asserting that the police had planted the Subutex in his pocket and that he had never conspired to engage in any illicit drug dealing . The court took note of that retraction and nevertheless observed that the applicant \u2019s new version of events contradicted other findings in the case . Those findings were based , inter alia , on full or partial confessions explicitly made by some of his accomplices during the trial , in the presence of their advocates . In addition , the court analysed the transcripts of the taped telephone conversations , arriving at the conclusion that , despite their coded language , they confirmed the existence of a conspiracy between the applicant and other defendants . The conviction was also confirmed by the statements of certain other witnesses , as well as by the results of searches of the GPE homes .","On DATE the applicant appealed against the conviction , calling into question the factual findings of the lower court . He also complained that the court had confirmed his conviction only on the basis of the transcripts of the taped conversations , without listening to the actual recordings .","On DATE ORG , after hearing the applicant and other defendants , some of whom maintained their confessions in exchange for a plea bargain with the prosecution , and having reviewed other case materials , upheld the applicant \u2019s conviction . As regards his complaint about the transcripts of the taped conversations , the appellate court dismissed it , stating that the applicant should have raised it at the first - instance hearing .","The applicant \u2019s appeal on point of law of DATE , in which he reiterated the arguments that he had made before the appellate court , was dismissed as inadmissible by ORG of GPE on DATE . The applicant was thus sentenced to DATE in prison , which started to run from DATE of his arrest on DATE . He was placed in NORP no . CARDINAL prison ( \u201c FAC \u201d ) .","According to the applicant \u2019s medical file , he is suffering from glomerulonephritis , nephrosclerosis , chronic renal failure , viral hepatitis C ( ORG ) , chronic bronchitis and arterial hypertension . His renal disorders developed gradually , as a result of a traffic accident in DATE , which caused septicaemia ( blood poisoning ) . Before the applicant was detained he had already been diagnosed with those renal disorders at advanced stages and , according to his medical file , underwent several courses of symptomatic urological treatment .","NORP The prison authority took charge of the applicant \u2019s health problems for the first time on DATE . Notably , in order to have his state of health assessed , he was taken on DATE to ORG of ORG for blood biochemical and urine analysis .","On the basis of the results of those tests , the prison authority then transferred the applicant , on DATE , from FAC to ORG ( \u201c the prison hospital \u201d ) , where he received comprehensive medical treatment over DATE , until DATE . This included various laboratory tests and examinations ( blood and urine tests , electrocardiography , chest X - ray ) , repeated consultations with medical specialists , including a nephrologist who had been summoned by the prison authority from a civil hospital ( this medical specialist examined the applicant on DATE and CARDINAL and DATE ) , and the prescription of appropriate drugs ( antibiotics and antihypertensive and anti - anaemic agents ) for nephrological \/ urological problems , ORG and arterial tension .","In addition , the prison authority , on the advice of a medical panel which had examined the applicant on DATE , repeatedly approached the medical authorities of various civilian hospitals DATE , seeking special tests , such as for creatinine and urea levels in the applicant \u2019s blood and an ultrasound scan of his abdominal cavity .","On DATE the applicant \u2019s doctor at the prison hospital opined that when his current course of treatment was complete the applicant could be discharged back to FAC , where he was to continue receiving medication .","Subsequently , the applicant had a medical check - up CARDINAL DATE and DATE and another DATE and DATE , at ORG ( \u201c the ORG \u201d ) . Reports on both examinations confirmed that the applicant \u2019s condition was stable and that he required long - term out - patient treatment under the supervision of a nephrologist , cardiologist and hepatologist .","On DATE the applicant was again admitted to the prison hospital , where he remained until DATE . The in - patient treatment included blood and urine tests , chest X - ray , abdominal ultrasound scan and consultations with a cardiologist . When he was discharged the doctor in charge of the applicant recommended that the patient continue treatment with the relevant drugs on an out - patient basis under the supervision of medical specialists .","On DATE the applicant was placed on an emergency basis in the intensive care unit of the prison hospital , with a diagnosis of possible food poisoning ; he was also suffering from anuria ( non - passage of urine ) , his condition being described as serious from the nephrological \/ urological point of view ( \u201c the relapse of DATE \u201d ) . The applicant \u2019s medical file confirms that comprehensive medical treatment was administered to him there , as a result of which his condition improved ( the symptoms of anuria disappeared ) , and on DATE he was transferred from intensive care to the ordinary therapeutic department of the prison hospital .","As disclosed by his medical file , the applicant underwent again , during his second stay in the prison hospital , the relevant medical tests and was examined by various medical specialists , including a nephrologist summoned by the prison authority from a civilian urology hospital ( this examination took place on DATE ) . The nephrologist prescribed the applicant treatment with CARDINAL different types of antibiotic , hypolipidemic and antihypertensive drugs ; the prison hospital immediately provided the applicant with this medication in the necessary dosages .","On DATE , after several medical specialists , including a nephrologist from a civilian hospital whose assistance had been requested again by the prison authority , had confirmed that the applicant \u2019s condition had stabilised , he was discharged back to FAC , where he continued to receive the prescribed medication on an out - patient basis .","At the applicant \u2019s request , experts from ORG ( \u201c the ORG \u201d ) conducted additional medical examinations DATE . Their conclusions ( \u201c the medical conclusions of DATE to DATE \u201d ) disclosed that the applicant \u2019s kidney conditions , which could be qualified as progressive serious disorders , had slightly progressed in comparison to the previous medical examinations ; the recommendation was that the applicant should continue treatment under the permanent supervision of a nephrologist .","On DATE the ORG prison authorities informed the applicant \u2019s advocate that its medical staff did not include a nephrologist . However , the prison undertook that in the event of deterioration of the applicant \u2019s condition he would immediately be transferred to an appropriate medical establishment .","On DATE the ORG , allowing the applicant \u2019s request , instructed the Government under Rule CARDINAL of ORG to place the applicant in a medical establishment capable of providing adequate treatment for his various health problems ; the Government were further invited to provide the ORG with information regarding the capability of the prison hospital in that regard .","On DATE the Government , as well as giving an account of the treatment administered to the applicant prior to the relapse of CARDINAL DATE , also informed the ORG that , after the indication of the medical interim measure under LAW , the applicant was transferred to the prison hospital on DATE . As disclosed by the relevant excerpts from his medical file , he received a comprehensive medical examination there , which included numerous laboratory tests ( blood , urine , ultrasound - based diagnostic tests of stomach , kidney and heart , chest X - ray and others ) , repeated consultations with various specialists ( including a nephrologist from a civilian hospital who examined the applicant on DATE ) who prescribed him ten types of medication for his renal , cardiac and hepatic conditions .","On DATE the ORG updated the ORG on the treatment provided to the applicant in the prison hospital . The medical file confirmed once again that the applicant had been regularly examined by various specialists , including different nephrologists from civilian hospitals , who had examined the applicant on DATE , DATE and DATE ; a cardiologist and infection specialist , who prescribed specific treatment for him ; the implementation of that treatment was then supervised on a DATE basis by a general practitioner at the prison hospital ( \u201c the GP \u201d ) . According to the ORG \u2019s medical log , which closely monitored the fluctuations in applicant \u2019s state of health from the date of his admission to the prison hospital on DATE until DATE , his condition remained stable overall , except for recurrent headache and general weakness . The applicant was treated with CARDINAL types of prescribed anti - hypertension , cardiological , hepatoprotective , antiinflammatory , urological , nephrological , antioxidant , beta - adrenoreceptor and sedative medication , as well as with various vitamins . In addition , as disclosed by the medical file , on DATE the applicant gave his consent in writing to start receiving anti - ORG treatment with the powerful anti - viral agents GPE and ORG .","In the light of the above - mentioned information , the ORG submitted that they had taken all necessary measures for the protection of the applicant \u2019s health in prison , and asked the ORG to lift the interim measure previously indicated on DATE .","By letters dated CARDINAL DATE and DATE , the applicant objected before the ORG to the consultations provided by a nephrologist , stating that they were too infrequent . Notably , referring to the relevant records in his medical file , he complained that DATE and DATE , he had been examined by that specialist on CARDINAL occasions , with the intervals varying from DATE . Acknowledging that the prison hospital had started administering antiHCV and other types of drugs , the applicant nevertheless claimed that no adequate treatment had been provided for his kidney problems . Furthermore , certain anti - HCV drugs , such as ORG , had , he stated , had a deleterious effect on his kidneys . Relying on these arguments , the applicant claimed that only a civilian hospital , where he could benefit , according to the medical conclusions of DATE , from the permanent supervision of a nephrologist , could provide adequate treatment for him .","NORP In support of the above allegations the applicant submitted more recent excerpts from his medical file , giving an account of the treatment provided for him in the prison hospital from DATE . Those documents disclosed that his overall condition had remained stable during that period . According to the ORG \u2019s opinion dated DATE , given the chronic nature of the applicant \u2019s kidney problems and that his condition was not acute , nor was he experiencing deterioration , there was no need for specific treatment such as haemodialysis at a specialist nephrology hospital . As to his ORG , despite the provided anti - viral medication , there continued to be a virological response to the blood tests conducted ( SVR ) .","On DATE the ORG , in the light of the additional information provided by the parties , decided to lift the interim measure previously indicated on DATE .","Despite the fact that the interim measure was lifted , of which both parties were duly informed by ORG DATE , the relevant authorities did not remove the applicant from the prison hospital . Thus , at the time of the submission of the ORG \u2019s comments of CARDINAL DATE ( see paragraph CARDINAL above ) , the applicant was still undergoing , and had been since DATE , treatment in that hospital .","Pursuant to LAW ( a ) of the ORG , a court could suspend a prison sentence in view of a convict \u2019s grave state of health , if his or her illness impeded the proper execution of the sentence , pending the convict \u2019s full or partial recovery .","Article CARDINAL of the ORG provided for a possibility of early release by a court on account of a convict \u2019s grave or incurable illness , which should be established by a qualified medical opinion .","Article CARDINAL of the General Administrative Code stated that an individual could sue a ORG agency for damage under the rules on liability for civil wrongs contained in LAW . LAW entitled an individual to request compensation for non - pecuniary damage caused in respect of damage to his or her health .","Pursuant to ORG and CARDINAL(CARDINAL ) of LAW , an individual was entitled to request through a court that a ORG agency be ordered to undertake a certain action or , to the contrary , to refrain from taking an action , whether by adopting a written administrative act or without it , if such a request was aimed at the protection of the individual \u2019s rights or legitimate interests .","On DATE the Prison Code entered into force , abolishing the previous Imprisonment Act of DATE ( for the relevant provisions of that Act , see PERSON v. GPE , no . CARDINAL , \u00a7 DATE , CARDINAL DATE ) and introducing , inter alia , a new and detailed procedure for filing by detainees , both accused and convicted persons , of complaints to and against the prison authority .","DATE , which provided for the right to health care in prison , read as follows :","Article CARDINAL - Right to Health Care","\u201c CARDINAL . A [ detained ] accused \/ convict shall have the right to use all the necessary medical facilities . All types of medical treatment which are permitted in the given establishment should be made accessible to [ a detainee ] . If so requested , [ a detainee ] should be entitled to obtain at his or her own expense more expensive or similar medication or other type of medical treatment than those procured by the relevant establishment . In the event of a reasoned request , and with the permission of the Head of the [ ORG , [ a detainee ] may invite a civilian doctor at his or her own expense .","Immediately upon entering an establishment , a [ detainee ] must undergo a medical examination . The relevant record shall be drawn up and added to the [ detainee \u2019s ] personal medical file . \u201d","By virtue of LAW , a detainee , acting either in person or through his lawyer or a representative in law , may submit a written complaint against any action or omission by a staff member of the relevant establishment , a legal decision or any other matter which appears to constitute a breach of a right guaranteed to him or her by LAW . Article CARDINAL specified that , upon being placed in the establishment , a detainee must immediately be informed by the authorities of his or her right to submit such a complaint .","Pursuant to ORG and CARDINAL , a complaint should initially be addressed to the hierarchical superior of the prison officer or agency who has allegedly breached the detainee \u2019s right in question or to ORG ( this group forms , according to LAW , part of ORG and was established in order to monitor allegations of ill - treatment in prison ) . In order to guarantee that a complaint is drafted in a proper manner , the detainee may solicit the services of a lawyer , including a public lawyer financed by the ORG . A detainee who does not have a sufficient understanding of the NORP language shall be assigned an interpreter free of charge .","Article CARDINAL states that a detainee \u2019s complaint must be delivered to the addressee within TIME .","Article CARDINAL further states that if an ordinary complaint is addressed to the governor of an establishment , he or she shall examine and respond to it within DATE , which period may be extended , in exceptional circumstances , DATE . If a complaint is addressed to the Head of ORG , that authority has DATE to examine it , which period may also be extended , as an exception , DATE . In any event , the detainee must be duly warned of any extension of the ordinary time - limit .","Pursuant to Article CARDINAL , a complaint raising allegations of torture , inhuman or degrading treatment is considered to be an extraordinary complaint which should be examined by the relevant authority \u201c immediately \u201d . In addition to examining it , the governor of the establishment in question , as well as ORG , must be informed of that complaint within TIME after it has been submitted .","Article CARDINAL requires that the relevant authority \u2019s response to a detainee \u2019s complaint , whether positive or negative , must be duly reasoned ; every specific issue raised by the detainee must be fully addressed . If the detainee is not satisfied with that response , he or she may , under Article CARDINAL , contest it before a court , initiating the relevant administrativelegal proceedings .","The excerpts from the above - mentioned ORG , describing the capacity of the new prison hospital , read as follows :","\u201c CARDINAL . The Medical establishment for prisoners in GPE ( PERSON ) , located within the perimeter of the LAW penitentiary complex , represents a great improvement on FAC visited by the ORG in DATE and DATE . The delegation gained a globally positive impression of this new facility , inaugurated at DATE but in fact functioning fully only for DATE . With an official capacity of CARDINAL beds , the establishment was accommodating CARDINAL sick prisoners at the time of the visit . All the patients were men .","There were CARDINAL wards : surgery , psychiatry , infectious diseases , internal medicine and intensive care \/ reanimation . Further , there was an admissions unit , an X - ray unit , a dental office , a laboratory , rooms for endoscopy and physiotherapy , and a pharmacy .","The diagnostic equipment was modern and functional , and the establishment offered an adequate range of hospital treatments for prisoners . It was also possible to transfer sick prisoners to other hospital facilities for diagnostic treatments which were not available at the Medical establishment ( an average of CARDINAL transfers per week ) .","Clinical staff were sufficient in numbers ( a total of CARDINAL doctors and nurses ) and appropriately trained . Further , a number of outside medical consultants ( neuropsychiatrist , neurosurgeon , etc . ) held periodic surgeries . ...","As regards material conditions in the ORG rooms , there was adequate access to natural light , artificial lighting and ventilation , and the rooms were in a good state of repair and cleanliness . That said , the rooms were rather cramped ( e.g. CARDINAL prisoners in a room measuring CARDINAL m\u00b2 , including a sanitary annexe ) . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22196","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"DE PONTE NASCIMENTO v. THE UNITED KINGDOM","importance":3,"conclusion":"Inadmissible","judges":"Georg Ress;Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE , and lives in GPE . He is represented before the ORG by PERSON PERSON , a solicitor , and Mr PERSON , counsel , both practising in GPE . The respondent Government are represented by their agent , PERSON of ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the applicant was knocked off his bicycle by a car . He started proceedings against the driver of the car on DATE . The applicant returned to live in FAC . On DATE , ORG ordered the applicant to file further medical evidence in support of his claim within DATE , failing which any particulars of injury not substantiated by a medical report would be struck out . Further medical evidence was filed on behalf of the applicant , some within DATE and some later . The defendant to the proceedings made an application that the particulars of injury be struck out for failure to comply with the order of DATE . The application was heard on DATE by GPE Judge PERSON , who struck out the particulars of injury . The practical effect of striking out the particulars of injury was that the applicant could no longer claim general damages or damages for loss of earnings , which represented by far the major part of his claim .","The applicant appealed against the decision of GPE Judge PERSON . On DATE , the appeal was heard by PERSON . She dismissed the appeal . The applicant applied to ORG for leave to appeal .","The hearing began on DATE and continued on DATE . ORG reserved its judgment . On DATE , ORG handed down a judgment refusing permission to appeal . Each of the CARDINAL Lord Justices of Appeal gave a separate judgment .","Sir PERSON considered that the Recorder had applied the proper test and exercised her discretion correctly , and that permission to appeal should accordingly be refused .","Lord Justice PERSON considered that the District Judge and the ORG had failed to apply the relevant legal principles correctly , and that permission to appeal should be granted , because otherwise no court would have considered the exercise of its discretion on correct principles .","Lord Justice PERSON considered that the Recorder had identified the applicable principles but failed to apply them , but that this failure did not raise any question of principle within the terms of either paragraph CARDINAL of the practice direction of CARDINAL DATE or paragraph CARDINAL of the consolidated practice direction of CARDINAL DATE ( see below ) . He further considered that the case was not one which for some other reason ( practice direction of CARDINAL DATE ) , or some other compelling reason ( consolidated practice direction of DATE ) , should be considered by ORG . Lord Justice PERSON stated at pp . CARDINAL - CARDINAL :","\u201c Personal injury litigation should not be conducted on the basis that the rules peculiar to it can be treated as of no importance . To do so is to put at risk CARDINAL of the objects which those rules are intended to promote ; that is to say , that the medical evidence on which the plaintiff relies can be properly assessed by the defendant at as early a stage as possible . Failure to make early disclosure of the plaintiff \u2019s medical condition puts a fair trial at risk . I can see no basis upon which to hold that justice demands that the defendant should suffer the risk that any trial which could now be held would be less than fair . On the contrary , it seems to me that the balance of justice lies in upholding the orders which have been made . \u201d","Lord Justice PERSON concluded that permission to appeal should be refused . He declined to take a view on the merits which he regarded as finely balanced .","On DATE , Lord PERSON , Master of the Rolls , issued a practice direction relating , inter alia , to leave to appeal to ORG ( reported at [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . Practice Directions do not have formal legal effect but are followed by the judiciary , representing as they do the collective view of senior judges and , in time , the terms of Practice Directions become embodied in decisions of the higher courts , which do have binding effect . Paragraph CARDINAL of the practice direction provided , under the heading \u201c The General Test for Leave \u201d :","\u201c The general rule applied by ORG , and thus the relevant basis for first instance courts deciding whether to grant leave , is that leave will be given unless an appeal would have no realistic prospect of success . \u201d","Paragraph CARDINAL of the practice direction contained new guidance , in the following terms ( so far as material ) :","\u201c Where there has already been CARDINAL unsuccessful appeal to a court ... against the decision being challenged , for example from a District Judge to a Circuit Judge or from a Master to a ORG Judge , and the application is for permission for a further appeal to ORG , a more restrictive approach to the test for permission to appeal should be adopted . Permission should be granted only if the case raises an important point of principle or practice or the case is one which for some other compelling reason should be considered by ORG . \u201d","On DATE , ORG issued a practice direction consolidating , with some amendments , all of the principal practice directions which applied to proceedings in ORG ) . Paragraphs CARDINAL of the practice direction of CARDINAL DATE were reproduced in similar terms in the consolidated practice direction , with CARDINAL significant change : in paragraph CARDINAL ( new paragraph CARDINAL ) , the word \u201c important \u201d was omitted from the final sentence ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67632","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2004,"docname":"NORWOOD v. THE UNITED KINGDOM","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in a village near GPE , GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The applicant was a Regional Organiser for the British National Party ( \u201c NORP \u201d : an extreme right wing political party ) . DATE and DATE he displayed in the window of his first - floor flat a large poster ( QUANTITY ) , supplied by the ORG , with a photograph of ORG in flame , the words \u201c NORP out of GPE \u2013 Protect the NORP People \u201d and a symbol of a crescent and star in a prohibition sign .","The poster was removed by the police following a complaint from a member of the public . The following day a police officer contacted the applicant by telephone and invited him to come to the local police station for an interview . The applicant refused to attend .","The applicant was then charged with an aggravated offence under section CARDINAL of LAW CARDINAL ( see below ) , of displaying , with hostility towards a racial or religious group , any writing , sign or other visible representation which is threatening , abusive or insulting , within the sight of a person likely to be caused harassment , alarm or distress by it . The applicant pleaded not guilty and argued , in his defence , that the poster referred to NORP extremism and was not abusive or insulting , and that to convict him would infringe his right to freedom of expression under LAW . On DATE he was convicted of the offence by District Judge PERSON at ORG , and fined GBP CARDINAL .","The applicant appealed to ORG , which dismissed his appeal on DATE . Lord Justice Auld held that the poster was \u201c a public expression of attack on all NORP in this country , urging all who might read it that followers of the NORP religion here should be removed from it and warning that their presence here was a threat or a danger to the NORP people \u201d .","The applicant was charged with the offence of causing alarm or distress contrary to section CARDINAL(CARDINAL)(b ) of LAW DATE , aggravated in the manner provided by sections CARDINAL and CARDINAL of ORG DATE ( as amended by section CARDINAL of the Anti - terrorism , LAW DATE ) . LAW provides :","\u201c ( CARDINAL ) A person is guilty of an offence if he ; ... ( b ) displays any writing , sign or other visible representation which is threatening , abusive or insulting , within the hearing or sight of a person likely to be caused harassment , alarm or distress thereby .","( CARDINAL ) An offence under this section may be committed in a public or a private place ...","( CARDINAL ) It is a defence for the accused to prove \u2013 ( a ) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment , alarm or distress , or ( b ) that he was inside a dwelling and had no reason to believe that the words or the behaviour used , or the writing , sign or other visible representation displayed would be heard or seen by a person outside that or any other dwelling , or ( c ) that his conduct was reasonable \u201d .","The DATE Act further provides , in section CARDINAL ) :","\u201c A person is guilty of an offence under section CARDINAL only if he intends ... the writing , sign or other visible representation to be threatening , abusive or insulting , or is aware that it may be threatening , abusive or insulting ... \u201d","The CARDINAL Act , as amended , introduced a statutory aggravation to a number of offences , including LAW , carrying with it higher maximum penalties . According to sections CARDINAL(CARDINAL)(b ) and CARDINAL(CARDINAL)(c ) of LAW , an offence under LAW is \u201c racially or religiously aggravated \u201d if it is \u201c motivated ( wholly or partly ) by hostility towards members of a racial or religious group based on their membership of that group \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-92891","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2009,"docname":"CASE OF KRAWIECKI v. POLAND","importance":4,"conclusion":"Violation of Article 8 - Right to respect for private and family life","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was remanded in custody . The grounds for this decision are unknown , since the applicant has not produced a copy of the order .","On DATE ORG ( FAC ) extended the applicant \u2019s detention . On DATE the court decided to discontinue the criminal proceedings against him . The court held that the applicant at the time of the commission of the offence had been incapable of recognising its significance or controlling his conduct because of his mental illness . The applicant had been diagnosed with schizophrenia ( paranoid subtype ) .","On DATE the applicant was placed in a mental hospital .","On DATE ORG decided to extend the applicant \u2019s detention at the mental hospital . The court held that he was still suffering from severe schizophrenia .","On DATE and DATE ORG decided to discontinue the criminal proceedings against the applicant due to his mental illness . The applicant \u2019s state of health was confirmed by a medical certificate of DATE .","In the light of the applicant \u2019s submissions , it is impossible to establish the facts relating to his detention .","On DATE the ORG received a letter from the applicant dated DATE . The letter was sent while the applicant was detained in FAC PERSON ) . It bears the following stamp : \u201c ORG in \u015awiebodzin , censored \u201d ( FAC , FAC ) , a handwritten date : \u201c CARDINAL \u201d and an illegible signature .","NORP The relevant domestic law concerning censorship of GPE correspondence is set out in the ORG \u2019s judgment in the case of Kliza v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-97569","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2010,"docname":"KUDEREWSKA AND KUDEREWSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicants , PERSON and PERSON , were born in DATE and DATE and live in GPE and GPE , GPE , respectively . They were represented before the ORG by PERSON , a lawyer practising in GPE , GPE and in ORG , GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the ORG gave an expropriation decision and took over a plot of land ( no . FAC which belonged to the applicants ' predecessor in title . Later on , the plot in question was divided into CARDINAL plots ( nos . CARDINAL , CARDINAL\/CARDINAL , DATE and DATE ) .","On DATE the ORG gave an expropriation decision and took over another plot of land ( no . CARDINAL ) . Later on , that plot was divided into CARDINAL plots ( nos . ORG , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL ) .","On DATE the applicants ' predecessor in title sold another plot ( no . CARDINAL\/CARDINAL ) to ORG .","On DATE the applicants ' predecessor in title sold CARDINAL other plots ( nos . CARDINAL and CARDINAL ) to ORG .","On DATE the applicants ' mother was declared as a legal successor of the abovementioned plots . In DATE the domestic authorities abandoned the land development plans for which the plots in question had been expropriated .","On DATE the applicants ' mother lodged a request with ORG for restitution of the plots nos . CARDINAL\/CARDINAL and CARDINAL\/CARDINAL . On a later unknown date the case was transferred to ORG . On DATE the applicants ' mother repeated her request for restitution in respect of all plots which had been expropriated in DATE .","On DATE the Head of ORG granted her request in respect of the plot no . CARDINAL\/CARDINAL .","On DATE the Head of ORG refused her request in respect of the plots nos . MONEY , CARDINAL\/CARDINAL and CARDINAL . On DATE the Gda\u0144sk Governor upheld this decision . On DATE ORG quashed both decisions in respect of the plot no . CARDINAL and dismissed the remainder of her appeal ( in respect of the plots nos . QUANTITY and CARDINAL\/CARDINAL ) .","On DATE , after the delivery of the judgment of ORG , the applicants ' mother repeated her request for recovery of her plot no . CARDINAL ( at that time nos . MONEY , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL ) .","On DATE the Gdynia Mayor gave a decision whereby it divided the plot no . CARDINAL into CARDINAL separate plots ( nos . CARDINAL and CARDINAL ) . On DATE the Gdynia Mayor held an administrative hearing in respect of the plots nos . CARDINAL\/CARDINAL and CARDINAL .","On DATE the applicants ' mother lodged a complaint with the Gda\u0144sk Governor about inactivity on the part of the GPE Mayor . On DATE the Gda\u0144sk Governor dismissed her complaint finding that the PERSON had properly informed her in DATE about the delay in the proceedings caused by difficulties in appointing an expert with a view to estimating the value of the plots . On DATE the applicants ' mother withdrew her complaint to ORG about the inactivity of the administrative authorities .","On DATE the Gda\u0144sk Governor disqualified the PERSON from dealing with the case and transferred it to the Gda\u0144sk Mayor .","On DATE the applicants ' mother lodged a complaint with ORG about inactivity on the part of the Gda\u0144sk Mayor . On DATE the court declared her complaint inadmissible since had failed to lodge , first , a hierarchical complaint .","On DATE the ORG Mayor informed the applicants ' mother about further delay in the proceedings and that they would end in DATE .","On DATE the applicants ' mother lodged a complaint with the Gda\u0144sk Governor about inactivity on the part of the Gda\u0144sk Mayor . In reply , on DATE the Gda\u0144sk Governor ordered that a decision should be given within DATE .","On DATE the Gda\u0144sk Mayor stayed the proceedings in respect of the plots nos.CARDINAL\/CARDINAL , CARDINAL and CARDINAL . On DATE the Gda\u0144sk Governor quashed the abovementioned decision .","On DATE the Gda\u0144sk Governor ordered the Gda\u0144sk Mayor to issue a decision on the merits within DATE from the date of his decision .","On DATE the Gda\u0144sk Mayor decided to restore the plots nos . CARDINAL\/CARDINAL and CARDINAL to the applicants ' mother and refused the request in respect of the plot no . CARDINAL . On DATE the Gda\u0144sk Governor quashed the abovementioned decision and remitted the case .","On DATE the applicants ' mother lodged a complaint with the Gda\u0144sk Governor about inactivity on the part of the Gda\u0144sk Mayor . On DATE the Gda\u0144sk Governor dismissed her complaint , finding no inactivity on the Mayor 's part .","The applicants ' mother died in DATE . By a letter of CARDINAL DATE the first applicant informed the Gda\u0144sk Mayor about the applicants ' intention to continue the proceedings .","On DATE the first applicant was requested to submit an official copy of the court 's decision ( \u201c odpis \u201d ) declaring that the applicants were legal successors of their mother .","On DATE the applicants submitted to the Gda\u0144sk Mayor a photocopy of ORG decision of CARDINAL DATE declaring them their mother 's legal successors and a photocopy of a power of authority to act on her behalf which the first applicant had given to PERSON on DATE .","On DATE PERSON requested the PERSON to enforce the judgment of ORG of DATE . There was no reply to that letter .","On DATE the Gda\u0144sk Mayor informed PERSON that the photocopies submitted to the case file could not be treated as evidence . He referred to the case - law of ORG , according to which documents submitted merely in photocopy form could not be regarded as having probative value . She was also informed that it was possible to show the originals to the administrative authority and that they would be certified on the spot . A copy of that letter was also sent to the applicants .","The relevant domestic law concerning inactivity on the part of administrative authorities is set out in PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-70459","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2005,"docname":"CASE OF GISELA MULLER v. GERMANY","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in PERSON in GPE .","Since DATE the applicant , her sister PERSON and their mother PERSON were the joint owners of a plot of land situated in GPE . The lease of the plot was managed by a partnership consisting of the applicant , PERSON , S. and a limited company ( S company ) . Partners of the S company were also the applicant , PERSON DATE , serious arguments arose between the applicant on one side and her mother and sister on the other side about questions of the proper administration of the partnership , in particular in respect of taxation matters .","By letter dated DATE , the applicant filed an action with ORG ( ORG ) , sitting as a court competent in commercial matters ( PERSON f\u00fcr GPE ) , against PERSON the S company ( hereafter \u201c the defendants \u201d ) . According to the Government \u2019s submissions \u2013 which are contested by the applicant \u2013 ORG received the action on DATE . The applicant asked ORG to prohibit the defendants from excluding her from the management of the business . She also demanded that the defendants surrender all DATE accounts since DATE and that they distribute the net profits accordingly . The applicant alleged that the defendants had failed to consult her about the management . She further complained about mistakes in the management , in particular about the fact that the defendants insisted on paying business taxes without being obliged to do so .","On DATE the applicant \u2019s counsel stated that the applicant was willing to reach a friendly settlement .","On DATE , during a first oral hearing , the parties declared that they were willing to reach an understanding and only thereafter hold another hearing .","On DATE the applicant \u2019s counsel informed ORG that negotiations on a settlement had not taken place .","On DATE , during a further hearing , ORG continuing efforts to induce the parties to agree on a friendly settlement failed . However , PERSON agreed to submit all documents on the DATE accounts since DATE to the applicant \u2019s counsel for inspection .","On DATE the applicant \u2019s counsel informed ORG that S. had failed to comply .","On DATE ORG scheduled an oral hearing which was subsequently postponed on the applicant \u2019s request .","On DATE agreed to submit the relevant documents on the DATE accounts since DATE to the applicant \u2019s counsel .","On DATE ORG instructed the defendants to submit the partnership agreements and the DATE accounts since DATE and to disclose the use of the reported profits . It further instructed the applicant to quantify her claims .","In DATE and DATE and DATE ORG called for the case - file of a separate law suit which the applicant conducted against the partnership \u2019s former tax consultant . On DATE according to the ORG \u2019s submissions , which are contested by the applicant \u2013 the defendants submitted the DATE balances and reported on the use of the profits .","On DATE the presiding judge noted that \u201c particularly on emotional grounds , the sensible pursuit of progress in this case \u201d was not possible before a final decision had been reached in the proceedings against the tax consultant .","On DATE the applicant complied with the conditions imposed in the order of CARDINAL DATE . In DATE and DATE , DATE and DATE ORG filed for further information on the proceedings against the tax consultant .","On DATE ORG scheduled a further hearing for DATE . On DATE that court decided to schedule a further hearing only after the tax authority \u2019s decisions on the partnership \u2019s tax liability for DATE had become final . On DATE the applicant \u2019s counsel informed the court that the tax decisions had become final . On DATE , DATE and CARDINAL DATE the applicant \u2019s counsel requested ORG to schedule a new oral hearing . On DATE ORG scheduled an oral hearing for DATE , noting that the delay was owed to the chamber \u2019s excessive workload during DATE .","On DATE , following the oral hearing , ORG delivered a partial decision ordering the defendants to pay ORG to the applicant and to grant her a restricted power over the commercial partnership \u2019s bank accounts .","NORP In a letter directed to the presiding judge of ORG , the presiding judge of ORG expressed his regrets of the fact that his attempts to reconcile the parties had failed .","On DATE the defendants lodged an appeal against ORG partial decision .","On DATE ORG ( ORG in GPE ) , having received submissions from both parties , scheduled an oral hearing for CARDINAL DATE .","On DATE the applicant informed ORG that she had changed counsel .","On DATE and CARDINAL DATE ORG postponed the hearing , once following the applicant \u2019s request and a second time because of the rapporteur \u2019s illness .","On DATE ORG further postponed the hearing on the ground that the rapporteur had been seconded to the eastern part of GPE .","On DATE , following an oral hearing on DATE , ORG of Appeal quashed ORG partial decision and rejected the applicant \u2019s claims .","On DATE ORG scheduled an oral hearing for DATE . On DATE and DATE , following requests from the defendants , ORG postponed the hearing .","On DATE ORG , once again , tried to induce the parties to reach a friendly settlement . On DATE the parties informed ORG that no settlement had been reached .","On DATE ORG ordered the preparation of an expert opinion as to whether the DATE accounts for DATE of both the commercial partnership and ORG had been prepared in accordance with the rules on accounting and balances . It found that the DATE balances did not form a sufficient basis to calculate the applicant \u2019s possible net profit claims .","On DATE , upon payment of the advance costs , ORG sent the files to ORG for the nomination of a suitable expert .","On DATE the applicant \u2019s counsel informed ORG that he had relinquished his mandate .","On DATE ORG named an expert .","On DATE according to the Government \u2019s submissions \u2013 the presiding judge of ORG orally informed the applicant that he would only commission the expert after she had nominated a new counsel .","On DATE the applicant informed ORG that she had mandated new counsel .","On DATE ORG ordered the parties to pay further advance costs .","NORP On DATE ORG appointed the certified accountant NORP to prepare the expert opinion .","On DATE , after having received the necessary documents towards DATE , NORP submitted his report .","On DATE , following the submissions of both parties and requests filed by the defendants to postpone the hearing , ORG held an oral hearing and asked NORP to amend his report in view of supplementary documents to be submitted by the defendants .","On CARDINAL DATE the applicant lodged a criminal charge against the defendants for withholding documents , which led to a search of S. \u2019s apartment .","On CARDINAL DATE \u2013 according to ORG submissions \u2013 ORG requested ORG to transmit the case - file . On DATE the presiding judge of ORG informed the parties that he was prevented from pursuing proceedings as ORG had not yet returned the case - file .","On DATE ORG asked NORP to resume his work on the amendment of his expert report .","On DATE the applicant addressed a letter to the President of ORG , referring to the excessive length of proceedings and requesting that her case be given priority .","On DATE the presiding judge of ORG informed the parties that he was unable to proceed because the files had not yet returned from the President \u2019s office . On DATE the President informed the applicant that he could not find any delay in proceedings attributable to the court .","On DATE the expert informed ORG that the defendants had not submitted all necessary documents .","DATE . On DATE , during an oral hearing , the defendants stated that they would submit the requested documents at DATE . ORG scheduled a date to proclaim a decision for CARDINAL DATE .","On DATE the applicant requested the oral hearing to be reopened and announced new applications .","On DATE ORG re - opened proceedings and scheduled a hearing for DATE . On DATE , following the defendant \u2019s request of CARDINAL DATE , ORG postponed the hearing to DATE .","On DATE ORG suggested another friendly settlement and scheduled a final hearing for DATE .","On DATE , following the defendant \u2019s request , ORG postponed the hearing to DATE . Following that hearing ORG announced that it would issue a decision on DATE .","On DATE ORG received NORP \u2019s amended expert opinion .","On DATE ORG ordered the parties to file their comments on the report and scheduled to give a decision on DATE .","On DATE ORG issued a judgment combined with a judgment on the basis of the cause of action ( ORG ) , concluding that the applicant had effectively revoked the managerial rights of the defendants , that the defendants \u2013 in collaboration with the applicant \u2013 were obliged to draw up the DATE accounts from DATE and rejecting the majority of the applicant \u2019s further claims . In his reasoning , the presiding judge noted that the parties conducted their arguments since DATE \u201c with consistent stubbornness and with an uncompromising attitude \u201d the like of which he \u2013 the presiding judge DATE had never before experienced in his professional career .","On DATE and CARDINAL DATE all parties lodged their appeals . On DATE , having received submissions from all parties , ORG scheduled a hearing for DATE . On DATE , following a request by the applicant , ORG postponed the hearing to DATE .","On DATE ORG suggested that the parties should seek a separation . At the end of the hearing , following the request of all parties , the court decided that proceedings should only be continued on request of CARDINAL of the parties .","On DATE , following the defendants\u2019 application in a separate proceeding , ORG ( ORG ) ordered that the piece of land administered by the commercial partnership be sold by compulsory auction with a view to partitioning the property concerned ( ORG ) .","On DATE , following the applicant \u2019s request to continue proceedings , ORG scheduled an oral hearing for DATE which was later postponed on the GPE request to CARDINAL DATE .","On DATE ORG announced its intention to suspend proceedings until the termination of the auction proceedings , against which the applicant protested .","On DATE ORG passed an order to suspend the proceedings until a final decision had been reached in the auction proceedings . ORG found that the outcome of at least part of the lawsuit depended on the conclusion of these auction proceedings . On DATE and DATE and DATE and DATE ORG rejected the applicant \u2019s requests to resume proceedings on the ground that the auction proceedings had not yet been terminated .","On DATE the applicant raised a constitutional complaint . She complained that despite the undue length of the proceedings , ORG refused to resume them . She also gave a chronological account of the proceedings and maintained that their excessive length had violated her rights under LAW .","On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant \u2019s complaint .","On DATE ORG , in separate proceedings , rejected the applicant \u2019s final complaint against the compulsory sale of the plot of land . On this occasion , ORG was sitting as the same chamber as in the above mentioned proceedings .","On DATE passed away .","By an undated letter dispatched on DATE the presiding judge of ORG referred to this ORG \u2019s decision on the admissibility of the present complaint and asked the applicant if she wished to pursue the proceedings .","DATE . By letter of CARDINAL DATE the applicant insisted that ORG was legally obliged to revoke its suspension order of CARDINAL DATE before pursuing proceedings .","On DATE ORG lifted its suspension order and scheduled an oral hearing for DATE .","On DATE , following the oral hearing , ORG suspended the proceedings against S. because of the latter \u2019s death . At the same time , ORG issued CARDINAL pages of legal assessment of the case and invited the parties to submit any comments they would like to make within DATE . A new hearing would be scheduled after expiry of this time - limit . The proceedings are still pending before ORG .","On DATE , upon the applicant \u2019s complaint , ORG revoked the auction order . On DATE this decision was set aside by ORG ; a further appeal was dismissed on DATE by ORG .","The applicant \u2019s various further motions aimed at the prevention of the sale of the plot , including a further constitutional complaint , remained unsuccessful .","On DATE ORG ordered the auction of the plot of land . It was purchased by LAW The applicant \u2019s complaints remained unsuccessful ( see paragraph CARDINAL above ) .","The relevant Rules of Civil Procedure on the suspension of proceedings read as follows :","\u201c The court may order , if the decision of the legal dispute wholly or partly depends on the existence or non - existence of a legal relationship which forms the subject of another pending legal dispute ... that the proceedings be suspended until the other legal dispute is settled ... \u201d","\u201c The court may lift its orders of suspension ... \u201d","\u201c Suspended or interrupted proceedings are resumed by filing a statement with the court which is then served on the other party . \u201d","\u201c A decision by which the suspension of proceedings is ordered or denied on the ground of provisions of this title ... may be appealed ... \u201d","\u201c ( CARDINAL ) Against the decisions of the courts of appeal , no appeal is admissible ... \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-100690","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF PAKHOMOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 3","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in the town of GPE , GPE .","On DATE a group of police officers entered the applicant 's flat , intending to search it . The applicant , who had been offered the opportunity to hand over any illegal substances before the search , handed the police officers QUANTITY of tobacco and marijuana compound . No other illegal substances or money were found during the subsequent search of the flat carried out by the police . The applicant was arrested and taken to the LOC town temporary detention centre , where a police investigator , Mr S. , informed him that he had been arrested on suspicion of selling drugs to an anonymous person , whom the police called PERSON , during a policecontrolled purchase on DATE . The investigator also notified the applicant of an identification parade scheduled for DATE , in which PERSON was to participate .","On DATE the applicant was taken to ORG where he remained handcuffed to a heating device for TIME . The identification parade did not take place .","On DATE the ORG authorised the applicant 's placement in custody for DATE . He was transferred to temporary detention facility no . IZ-CARDINAL\/CARDINAL in GPE .","In DATE the applicant was notified of another charge brought against him . The prosecution authorities accused him of selling drugs to PERSON on another occasion , namely DATE .","On DATE the police investigator , PERSON , served the applicant and his lawyer with a bill of indictment . The investigation offered the following version of events on which the charges against the applicant were grounded . According to the investigating authorities , on an unspecified date an anonymous person , whose personal data could not be disclosed and who was called \u201c Mr I. \u201d , approached a police officer , PERSON . , and informed the latter that he could buy drugs from the applicant . The police officer PERSON . decided to act on the information received from PERSON and organised a police - controlled purchase of drugs . He invited CARDINAL soldiers serving in the local military unit , PERSON and PERSON , to act as lay witnesses during the purchase . On DATE police officer PERSON . , accompanied by another police officer , PERSON , CARDINAL lay witnesses , PERSON and PERSON , and PERSON , drove to the applicant 's house . On arrival to the applicant 's block of flats , officer PERSON . gave PERSON money to purchase drugs from the applicant . Serial numbers of the bills were recorded in advance . PERSON , accompanied by PERSON , left the car and went to the applicant 's flat . PERSON did not enter the flat , waiting for PERSON on the ground floor . Mr I. spent TIME in the applicant 's flat . After he had returned to the car , Mr I. handed the police officers a package containing QUANTITY of a substance , later identified by forensic experts as a compound of tobacco and cannabis , and stated that he had bought drugs from the applicant . The investigating authorities also insisted that the same sequence of events , albeit with the participation of other lay witnesses , Mr Se . and PERSON , occurred on DATE .","On DATE the applicant 's lawyer recorded a conversation with PERSON , who insisted that he could identify PERSON According to PERSON , in DATE he had met with the person identified as PERSON The latter had told PERSON that he had framed the applicant in a drug case . According to PERSON , the police had arrested him when he was carrying drugs and as a result he had been forced to participate in QUANTITY police - controlled drug purchases . PERSON allegedly explained that he had kept the money which the police officers had given him for drug purchases and in return he had allegedly given the police officers drugs which he had hidden in advance behind a heating device in the hall near the applicant 's flat .","On DATE the ORG found the applicant guilty of CARDINAL counts of attempted drug trafficking and CARDINAL count of drug possession , and sentenced him to DATE imprisonment . The conviction was based on the following evidence :","- statements by PERSON , given during the pre - trial investigation and read out in open court , despite the applicant 's objection . In those statements PERSON gave a detailed description of the events on DATE and CARDINAL DATE pertaining to his participation in the police - controlled purchases of drugs from the applicant . As follows from ORG judgment , Mr ORG 's personal data were not disclosed to the applicant . PERSON absence from trial hearings had been considered \u201c exceptional \u201d . Having cited no reasons which could justify Mr I. 's absence from the court hearing , ORG held that the absence was prompted by \u201c exceptional circumstances \u201d . On a number of occasions the defence unsuccessfully asked ORG to disclose PERSON identity .","- statements made in open court by PERSON and PERSON , lay witnesses who had assisted the police officers during the search of the applicant 's flat on DATE . Both PERSON and PERSON confirmed that the applicant had voluntarily turned over to the police officers a small package of a substance containing marijuana .","- statements made in a trial hearing by Mr Se . , who had acted as a lay witness during the police - controlled purchase of drugs from the applicant on DATE . Mr Se . explained that on a request from a police officer he had followed PERSON to the door of the applicant 's flat . PERSON had spent TIME in the flat . After PERSON left the flat he had a small package , which he gave to the police officers .","- statements given by another lay witness , PERSON , during the pre - trial investigation and read out in open court with the parties ' consent . PERSON statements were similar to those given by PERSON .","- statements by PERSON , a lay witness who had participated in the police - controlled purchase of drugs from the applicant on DATE . Those statements were given by PERSON during an interview with an investigator and read out in a trial hearing . ORG , without providing any further details , held that reasons for PERSON absence from the trial were \u201c exceptional \u201d . In his statements PERSON provided a detailed description of events on DATE and corroborated the prosecution 's version .","- statements by police officer PERSON . , made in open court . The police officer set out an account of events on DATE , DATE and CARDINAL DATE , insisting that on DATE dates PERSON had purchased drugs from the applicant during the police - controlled operations and that on DATE drugs had been found in the applicant 's flat during the search .","- report on a body search of PERSON on DATE showing that PERSON had had no illegal substances or money on him before he took part in the police - controlled purchase of drugs from the applicant .","- report drawn up by police officer PERSON . on DATE showing that the latter had given Mr I. four CARDINAL bills to purchase drugs from the applicant ;","- report of DATE indicating that on his return from the applicant 's flat PERSON had handed the police officers a package containing a phytogenous substance .","- an expert report confirming that the substances which Mr I. had handed to the police officers during the police - controlled operations on CARDINAL DATE and CARDINAL DATE contained cannabis .","- an expert report , according to which cannabis handed over by PERSON to the police on DATE and CARDINAL DATE most probably had the same origin . However , the cannabis which the applicant voluntarily turned over to the police during the search of his flat was from a different batch .","On request by the defence ORG heard a number of witnesses and rejected their testimony as unreliable . CARDINAL defence witnesses testified that they had visited the applicant on DATE and had been in his flat at the time when the police had allegedly performed the controlled drug purchase . They insisted that no one had visited the applicant 's flat when they had been there and that the applicant had not sold drugs to anyone . Another witness testified that she had been in the applicant 's flat with her brother on CARDINAL DATE at the time of the alleged drug purchase . She stressed that there had been no other visitors . ORG interviewed Mr So . , the head of the military unit where lay witnesses PERSON and PERSON had been performing military service . PERSON So . stated that , on a written request from the applicant 's lawyer , he had had a conversation with PERSON , who had insisted that he had not seen PERSON entering the applicant 's flat . ORG also studied a statement written by PERSON at the end of that conversation . PERSON confirmed that after PERSON had approached the door of the applicant 's flat he had ordered PERSON to go down to the ground floor and thus PERSON had been unable to observe PERSON entering the flat . ORG refused to call PERSON , whom the applicant had asked to be questioned about PERSON identity .","The applicant 's lawyer appealed against the conviction , arguing , inter alia , that ORG had read out statements by PERSON and PERSON , disregarding the objection by the defence to that effect , and that it had refused to hear PERSON","On DATE ORG upheld the judgment of DATE , endorsing the reasons given by ORG . As regards the applicant 's argument concerning the statements by PERSON and PERSON PERSON , ORG held as follows :","\u201c The [ Town ] court read out the statements by PERSON and PERSON in open court , complying with the requirements of LAW , because the [ Town ] court found that the reasons for their absence from the hearings were exceptional and [ it ] issued a reasoned judgment to that effect . \u201d","ORG also concluded that ORG had rightfully dismissed the applicant 's and his lawyer 's requests for the disclosure of Mr I. 's identity .","On DATE the Presidium of ORG , by way of a supervisory review , quashed the judgments of DATE and DATE in the part concerning the applicant 's conviction for drug trafficking , and upheld the conviction for possession of drugs found in his flat during the search . It stressed that having based , to a substantial degree , the applicant 's conviction for drug trafficking on statements by witnesses whom the applicant had been unable to confront in open court , including the anonymous witness ORG and a lay witness PERSON , the domestic courts had violated LAW ( d ) of LAW . The ORG concluded that there was no evidence that the applicant was guilty of drug trafficking . Having acquitted the applicant of that charge , the ORG reduced his sentence to DATE imprisonment and authorised his immediate release , as he had already served the entire sentence . The ORG also confirmed the applicant 's right to rehabilitation .","The following account has been drawn up from the medical records submitted by the Government .","In DATE the applicant was diagnosed with pulmonary tuberculosis . He underwent treatment in a tuberculosis hospital in PERSON .","On DATE , on his admission to temporary detention facility no . IZ-CARDINAL\/CARDINAL , the applicant informed an attending prison doctor that he had tuberculosis and complained of a cough and general fatigue . The doctor noted in the admission record that an examination by a tuberculosis specialist was required .","DATE the applicant underwent an X - ray examination which revealed the presence of a tuberculoma , measuring QUANTITY in width and QUANTITY in length , in the upper lobe of the left lung and dense foci in the right lung . On the basis of the X - ray examination the tuberculosis specialist recorded the following diagnosis in the applicant 's medical history : \u201c large residual changes in the form of a tuberculoma on the left and dense foci on the right after the recent tuberculosis ; \u201c D \u201d control is not required ; R - control should be carried out twice a year \u201d . The next X - ray exam was prescribed for DATE .","On DATE the applicant received the second chest X - ray examination , which showed no relapse .","On DATE the applicant requested to see a prison doctor to whom he complained of fatigue , a high temperature in the evenings and excessive sweating . The doctor diagnosed the applicant with acute viral respiratory infection , authorised a number of analyses , including general blood and urine tests , sputum analysis and a survey X - ray exam , and prescribed treatment with floracyd , a cough medicine and multivitamins .","A survey X - ray examination performed on DATE revealed the reactivation of the tuberculosis and the need for in - patient treatment for the applicant . The doctor 's diagnosis was \u201c infiltrative tuberculosis on the right side \u201d .","On DATE the applicant was transferred to the pulmonary tuberculosis ward of the medical department in the detention facility , where he remained until DATE . On DATE , DATE and DATE bacteriological sputum tests were performed by way of bacterioscopy , and showed no mycobacterium tuberculosis ( \u201c ORG \u201d ) . Subsequently similar tests were performed once DATE , each time producing negative results . On DATE a sputum sample taken for culture turned out positive . At the same time results of the applicant 's drug susceptibility testing ( \u201c DST \u201d ) were made available to the facility medical personnel , guiding the choice of the applicant 's treatment regimen . DATE and DATE the applicant was subjected to an intensive chemotherapy regimen , comprising a number of drugs : isoniazid , pyrazinamide , rifampicin , ethambutol , streptomycin , phosphoglif and multivitamins . During the initial stage of the treatment the applicant adhered to a strict medication regime , having received CARDINAL doses of anti - bacteriological medicines . An intake of every dose was observed by the facility medical staff . Attending tuberculosis specialists examined the patient once in DATE in view of identifying whether a correction of the drug regimen was necessary . DATE clinical blood and urine analyses were also carried out . DATE the applicant received chest radiography . Liver examinations were conducted regularly .","After a sputum culture testing had showed that the applicant was no longer smear positive and similar results had been received by way of sputum smear bacterioscopy at completion of the intensive phase of the treatment , the continuation phase of the therapy commenced , comprising treatment with isoniazid , rifampicin and ethambutol ( \u201c ORG regimen \u201d ) .","The applicant 's medical history contained a number of entries made by attending tuberculosis specialists , recording the applicant 's negative attitude towards the treatment and his refusal to take anti - bacteriological medicines on CARDINAL occasions . The attending doctors had conversations with the applicant , persuading him to continue the treatment and warning about a possible relapse of the illness or development of severe multi - drug - resistant tuberculosis . In addition , during examinations doctors occasionally reminded him of the negative effects of treatment interruption .","Following the applicant 's final conviction on DATE , on DATE the applicant was discharged from the medical department of the detention facility with a final diagnosis of infiltrative tuberculosis of the right lung in the resolution and consolidation phase and recommendations to continue treatment on an ORG regimen with a DATE special dietary food ration . He was sent for subsequent treatment to ORG no . CARDINAL ( \u201c the tuberculosis hospital \u201d ) for prisoners suffering from tuberculosis , located in GPE .","On DATE , on admission to the tuberculosis hospital , the applicant was examined by a tuberculosis specialist . A clinical blood analysis and sputum smear bacterioscopy were performed . It was decided to continue the extension phase of the medicine regimen as prescribed by medical specialists of the detention facility . A chest X - ray examination and sputum culture testing were scheduled to be performed at the end of the extension phase . The applicant was also assigned a special diet .","Once a month the applicant received a full medical examination . Each time the attending tuberculosis specialists recorded the total number of doses of anti - bacteriological medicines taken by the applicant . Clinical blood and urine tests were performed DATE . A sputum smear was regularly taken for bacterioscopy testing , revealing no presence of ORG . The applicant 's medical record also showed that medical personnel discussed with the applicant the necessity of the treatment and adherence to a strict medical regimen .","On DATE the applicant was examined by a medical panel comprising a number of medical specialists . Having studied his medical records , including results of CARDINAL most recent X - ray examinations , blood and urine analysis and sputum smear tests , the panel issued the following diagnosis : \u201c clinical recovery from infiltrative pulmonary tuberculosis accompanied by the presence of extensive post - tuberculosis changes in the form of foci and fibrous foci ... in both lungs \u201d . A schedule showing future medical procedures and their frequency was developed . The applicant was also prescribed DATE retreatment courses with isoniazid , ethambutol and vitamins , to prevent relapse of the illness .","On DATE the applicant was transferred to correctional colony no . CARDINAL . On arrival he was examined by a colony physician , who diagnosed the applicant with acute maxillary sinusitis for which he received treatment DATE . As follows from the applicant 's medical history , the correctional colony medical staff complied fully with the recommendations issued by the specialists of the tuberculosis hospital in respect of medical tests and anti - relapse treatment for the applicant .","\u201c CARDINAL . Provision of anti - tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the ORG and is performed on the basis of principles of legality , compliance with the rights of an individual and citizen , [ and ] general accessibility in the amount determined by ORG guarantees for provision of medical assistance to citizens of GPE , free of charge .","Anti - tuberculosis aid is provided to citizens when they voluntarily apply [ for such aid ] or when they consent [ to such aid ] , safe for cases indicated in Sections CARDINAL and CARDINAL of the present Federal law and other federal laws ... \u201d","\u201c CARDINAL . Individuals suffering from tuberculosis who are in need of anti - tuberculosis aid receive such an aid in medical anti - tuberculosis facilities , licensed to provide [ that aid ] .","Individuals who are or have been in contact with an individual suffering from tuberculosis should undergo an examination for detection of tuberculosis in compliance with requirements of law of GPE ... \u201d","Regular medical examinations of persons suffering from tuberculosis is performed in compliance with the procedure laid down by a respective federal executive body ...","Regular medical examinations of persons suffering from tuberculosis is performed irrespective of the patients ' or their representatives ' consent .","A medical commission appointed by the head of a medical anti - tuberculosis facility ... takes a decision authorising regular medical examinations or terminating them and records such a decision in medical documents ... ; an individual in respect of whom such a decision has been issued , is informed in writing about the decision taken . \u201d","\u201c CARDINAL . Individuals suffering from contagious forms of tuberculosis who ... intentionally avoid medical examinations aimed at detection of tuberculosis or avoid treating it , should be admitted , by a court decision , to specialised medical anti - tuberculosis establishments for mandatory examinations and treatment . \u201d","\u201c CARDINAL . Individuals admitted to medical anti - tuberculosis facilities for examinations and ( or ) treatment , have a right to :","receive information from the administration of the medical anti - tuberculosis facilities on the progress of treatment , examinations ...","have meetings with lawyers and clergy in private ;","take part in religious ceremonies , if they do not have a damaging impact on the state of their health ;","continue their education ...","Individuals ... suffering from tuberculosis have other rights provided for by the laws of GPE on health care ... \u201d","\u201c Individuals ... suffering from tuberculosis must ;","submit to medical procedures authorised by medical personnel ;","comply with the internal regulations of medical anti - tuberculosis facilities when they stay at those facilities ;","comply with sanitary and hygiene conditions established for public places when persons suffering from tuberculosis [ visit them ] . \u201d","\u201c CARDINAL . Individuals ... suffering from tuberculosis should be provided with medication free of charge for out - patient treatment of tuberculosis by federal specialised medical facilities in compliance with the procedure established by the Government of GPE ... \u201d","NORP law gives detailed guidelines for provision of medical assistance to detained individuals . These guidelines , found in the joint Decree of the Ministry of Health and Social Development and ORG no . CARDINAL\/CARDINAL on ORG or Detained ( \u201c the Regulation \u201d ) , enacted on DATE , are applicable without exception to all detainees . In particular , section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee . On arrival at a temporary detention facility all detainees should be subjected to preliminary medical examination before they are placed in cells shared by other inmates . The examination is performed with the aim of identifying individuals suffering from contagious diseases and those in need of urgent medical assistance . Particular attention should be paid to individuals suffering from contagious conditions . DATE after the detainee 's arrival at the detention facility he should receive an in - depth medical examination , including X - ray . During the in - depth examination a prison doctor should record the detainee 's complaints , study his medical and personal history , record injuries if present , and recent tattoos and schedule additional medical procedures , if necessary . A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases , HIV , tuberculosis and other illnesses .","Subsequent medical examinations of detainees are performed at least twice a DATE or on detainees ' complaints . If a detainee 's state of health has deteriorated , medical examinations and assistance should be provided by medical personnel of the detention facility . In such cases a medical examination should include a general medical check - up and additional methods of testing , if necessary , with the participation of particular medical specialists . The results of the examinations should be recorded in the detainee 's medical history . The detainee should be comprehensively informed about the results of the medical examinations .","Section III of the ORG also sets the procedure for cases of refusals by detainees to undergo a medical examination or treatment . In each case of refusal , a respective entry should be made in the detainees ' medical record . A prison doctor should comprehensively explain the detainee consequences of his refusal to undergo the medical procedure .","Detainees take prescribed medicines in the presence of a doctor . In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a DATE dose of medicines to the detainee for unobserved intake .","Section X of the Regulation regulates medical examinations , monitoring and treatment of detainees suffering from tuberculosis . It lays down a detailed account of medical procedures to be employed , establishes their frequency , regulates courses of treatment for new tuberculosis patients and previously treated ones ( relapsing or defaulting detainees ) . In particular , it provides that when a detainee exhibits signs of a relapse of tuberculosis , he or she should immediately be removed to designated LOC ( infectious unit of the medical department of the facility ) and should be sent for treatment to an anti - tuberculosis establishment . The prophylactic and anti - relapse treatment of tuberculosis patients should be performed by a tuberculosis specialist . Rigorous checking of the intake of anti - tuberculosis drugs by the detainee should be put in place . Each dose should be recorded in the detainee 's medical history . A refusal to take anti - tuberculosis medicine should also be noted in the medical record . A discussion of the negative impacts of the refusal should follow . Detainees suffering from tuberculosis should also be transferred to a special dietary ration .","On DATE ORG adopted Decree no . CARDINAL on Improvement of Anti - Tuberculosis Measures in GPE ( \u201c LAW \u201d or \u201c Decree \u201d ) . Having acknowledged a difficult epidemic situation in GPE in connection with a drastic increase in the number of individuals suffering from tuberculosis , particularly among children and detainees , and a substantial rise in the number of tuberculosis - related deaths , the Decree laid down guidelines and recommendations for country - wide prevention , detection and therapy of tuberculosis which conform to international standards , identifying forms and types of tuberculosis and categories of patients suffering from them , establishing types of necessary medical examinations , analyses and testing to be performed in each case and giving extremely detailed instructions on their performance and assessment ; laid down rules on vaccination ; determined courses and regimens of therapy for particular categories of patients , and so on .","In particular , Addendum CARDINAL to the Decree contains an Instruction on chemotherapy for tuberculosis patients . The aims of treatment , essential anti - tuberculosis drugs and their dose combinations , as well as standard regimens of chemotherapy set laid down by the Instruction for NORP tuberculosis patients conformed to those recommended by ORG in Treatment of Tuberculosis : ORG ( see below ) .","Article CARDINAL of the new CCrP , in so far as relevant , reads as follows :","\u201c CARDINAL . Testimony previously given by a victim or witness during the preliminary investigation or at the trial may be read out ... if the victim or witness fails to attend , subject to the parties ' consent , save in cases listed in the second part of the present Article .","NORP If a victim or witness fails to appear in court , the court may , at a party 's request or on its own initiative , read out statements previously given by them in the following cases :","CARDINAL ) NORP victim 's or witness 's death ;","CARDINAL ) NORP grave illness precluding attendance at a court hearing ;","CARDINAL ) NORP refusal by a victim or witness who is a national of a foreign State to attend a hearing when summoned by the court ;","CARDINAL ) natural disaster or any other emergency case precluding attendance at a court hearing . \u201d","The relevant provisions of the new CCrP read as follows :","\u201c CARDINAL . A court in its judgment .... acknowledges the right to rehabilitation for an individual who has been acquitted ... At the same time the rehabilitated [ person ] should have explained to them the procedure for compensation for damage pertaining to criminal prosecution .... \u201d","\u201c CARDINAL . Compensation for pecuniary damage to a rehabilitated [ person ] includes :","salary , pension , allowances and other sources of income which he lost as a result of the criminal prosecution ;","his property confiscated or seized by the ORG on the basis of the judgment by which he had been convicted ... ;","fines and legal costs and expenses which he paid in compliance with the court 's judgment ;","sums paid by him for provision of legal services ... ;","other expenses .","At any moment during the limitation period established by LAW and after the rehabilitated [ person ] received a copy of the judgment [ by which he had been acquitted ] ... he has the right to apply to [ the court which had issued the judgment ] with a demand to compensate him damage ...","...","No later than a month after the demand for compensation was received , the court ... must determine its amount and issue a decision authorising the payment in compensation for that damage . That payment should take into account the inflation rate . ... \u201d","\u201c CARDINAL . A prosecutor should give an official apology in the name of the ORG to the rehabilitated [ person ] for damage caused to him .","An action for compensation for non - pecuniary damage should be brought within civil judicial proceedings .... \u201d","\u201c CARDINAL . Restoration of labour , pension , housing and other rights of a rehabilitated [ person ] should be performed in compliance with [ the ORG ] established for execution of court judgments .... \u201d","ORG provide a framework of guiding principles for health services . The relevant extracts from the Rules read as follows :","\u201c Health care","Prison authorities shall safeguard the health of all prisoners in their care .","Organisation of prison health care","CARDINAL ORG services in prison shall be organised in close relation with the general health administration of the community or nation .","CARDINAL ORG policy in prisons shall be integrated into , and compatible with , national health policy .","CARDINAL Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation .","CARDINAL ORG services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .","CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .","Medical and health care personnel","CARDINAL Every prison shall have the services of CARDINAL qualified general medical practitioner .","CARDINAL Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency .","...","CARDINAL Every prison shall have personnel suitably trained in health care .","Duties of the medical practitioner","CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission , and shall examine them unless this is obviously unnecessary .","...","CARDINAL When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to :","...","b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ;","...","PERSON isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment ;","...","CARDINAL NORP The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with health care standards in the community , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .","...","Health care provision","CARDINAL Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison .","CARDINAL Where a prison service has its own hospital facilities , they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment . \u201d","The complexity and importance of health care services in detention facilities was discussed by ORG for the Prevention of Torture in its ORG ( ORG ( CARDINAL ) CARDINAL - Publication Date : DATE ) . The following are the extracts from the Report :","\u201c CARDINAL . When entering prison , all prisoners should without delay be seen by a member of the establishment 's health care service . In its reports to date the ORG has recommended that every newly arrived prisoner be properly interviewed and , if necessary , physically examined by a medical doctor as soon as possible after his admission . It should be added that in some countries , medical screening on arrival is carried out by a fully qualified nurse , who reports to a doctor . This latter approach could be considered as a more efficient use of available resources .","It is also desirable that a leaflet or booklet be handed to prisoners on their arrival , informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene .","While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...","A prison 's health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) ... Further , prison doctors should be able to call upon the services of specialists .","As regards emergency treatment , a doctor should always be on call . Further , someone competent to provide first aid should always be present on prison LOC , preferably someone with a recognised nursing qualification .","Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .","The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital ...","A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .","There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist \/ nurse , etc . ) . ...","A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .","Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .","NORP The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ...","A prison health care service should ensure that information about transmittable diseases ( in particular hepatitis , AIDS , tuberculosis , dermatological infections ) is regularly circulated , both to prisoners and to prison staff . Where appropriate , medical control of those with whom a particular prisoner has regular contact ( fellow prisoners , prison staff , frequent visitors ) should be carried out . \u201d","A further elaboration of NORP expectations towards health care in prisons is found in the appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG on the ethical and organisational aspects of health care in prison ( adopted on DATE at the ORG meeting of ORG ) . Primarily restating ORG and ORG standards , the Recommendation went beyond reiteration of the principles in some aspects to include more specific discussion of the management of certain common problems including transmissible diseases . In particular , in respect of cases of tuberculosis , ORG stressed that all necessary measures should be applied to prevent the propagation of this infection , in accordance with relevant legislation in this area . Therapeutic intervention should be of a standard equal to that outside of prison . The medical services of the local chest physician should be requested in order to obtain the long - term advice that is required for this condition as is undertaken in the community in accordance with relevant legislation ( Section CARDINAL ) .","The fact that transmissible diseases in NORP prisons have become an issue of considerable concern prompted a recommendation of ORG concerning prison and criminological aspects of the control of transmissible diseases and related health problems in prison ( adopted on DATE at the CARDINALth meeting of ORG ) . The relevant extracts from the Recommendation read as follows :","\u201c CARDINAL . The systematic medical examination carried out on entry into prison should include measures to detect intercurrent diseases , including treatable infectious diseases , in particular tuberculosis . The examination also gives the opportunity to provide health education and to give prisoners a greater sense of responsibility for their own health ....","Adequate financial and human resources should be made available within the prison health system to meet not only the problems of transmissible diseases and HIV \/ Aids but also all health problems affecting prisoners . \u201d","An expanded coverage of the issue related to transmissible diseases in detention facilities was given by ORG for the Prevention of Torture in its CARDINALth ORG ( ORG ( DATE ) CARDINAL published on DATE ) , a discussion prompted by findings of serious inadequacies in health provision and poor material conditions of detention which were exacerbating the transmission of the diseases . Addressing the issue , the ORG held as follows :","\u201c CARDINAL . The spread of transmissible diseases and , in particular , of tuberculosis , hepatitis and HIV \/ AIDS has become a major public health concern in a number of NORP countries . Although affecting the population at large , these diseases have emerged as a dramatic problem in certain prison systems . In this connection the ORG has , on a number of occasions , been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem . Further , material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases .","The ORG is aware that in periods of economic difficulties - such as those encountered DATE in many countries visited by the ORG - sacrifices have to be made , including in penitentiary establishments . However , regardless of the difficulties faced at any given time , the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention , screening , and treatment . Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life - threatening diseases .","The use of up - to date methods for screening , the regular supply of medication and related materials , the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals , and the provision when appropriate of special diets , constitute essential elements of an effective strategy to combat the above - mentioned diseases and to provide appropriate care to the prisoners concerned . Similarly , material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health ; in addition to natural light and good ventilation , there must be satisfactory hygiene as well as an absence of overcrowding .","Further , the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds ...","In order to dispel misconceptions on these matters , it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff . Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures .","It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test . Further , it is axiomatic that patient - related information should be protected by medical confidentiality . As a matter of principle , any interventions in this area should be based on the informed consent of the persons concerned .","Moreover , for control of the above - mentioned diseases to be effective , all the ministries and agencies working in this field in a given country must ensure that they co - ordinate their efforts in the best possible way . In this respect the ORG wishes to stress that the continuation of treatment after release from prison must be guaranteed . \u201d","The ORG report on the visit to GPE carried out from DATE ( CPT \/ INF ( DATE ) CARDINAL ) provides as follows :","\u201c CARDINAL . The ORG is also seriously concerned by the practice of transferring back from GPE [ temporary detention facility ] to ORG [ temporary detention ward in police departments ] facilities prisoners diagnosed to have BK+ tuberculosis ( and hence highly contagious ) , as well as by the interruption of ORG treatment while at the ORG . An interruption of the treatment also appeared to occur during transfers between penitentiary establishments .","In the interest of combating the spread of tuberculosis within the law - enforcement and penitentiary system and in society in general , the ORG recommends that immediate measures be taken to put an end to the above - mentioned practice . \u201d","On DATE ORG published LAW no . PERSON , Volume I ) on a loan granted to GPE for Tuberculosis and ORG . The relevant part of the ORG read as follows :","\u201c According to ORG ) , GPE was one of the CARDINAL high - burden countries for GPE in the world ( WHO , Global Tuberculosis control : ORG , GPE , DATE ) . The incidence of GPE increased throughout DATE . This was due to a combination of factors , including : ( i ) increased poverty , ( ii ) under - funding of TB services and health services in general , ( iii ) diagnostic and therapeutic approaches that were designed for a centralized command - and - control TB system , but were unable to cope with the social mobility and relative freedom of the post - NORP era , and ( iv ) technical inadequacies and outdated equipment . Migration of populations from ex - NORP republics with high GPE burdens also increased the problem . Prevalence rates were many times higher in the prison system than in the general population . Treatment included lengthy hospitalizations , variations among clinicians and patients in the therapeutic regimen , and frequent recourse to surgery . A shrinking health budget resulted in an erratic supply of anti - TB drugs and laboratory supplies , reduced quality control in GPE dispensaries and laboratories , and inadequate treatment . The social conditions favouring the spread of GPE , combined with inadequate systems for diagnosis , treatment , and surveillance , as well as increased drug resistance , produced a serious public health problem .","TB control in the former ORG ( GPE ) and in most of GPE in DATE was heavily centralized , with separate hospitals ( TB dispensaries ) , TB sanatoriums , GPE research institutes and GPE specialists . The system was designed in DATE to address the challenges of the TB epidemic . Case detection relied strongly on active mass screening by PERSON ( phluorography ) . Specificity , sensitivity , and cost - effectiveness considerations were not features of this approach . PERSON ( ORG ) immunization was a key feature of the GPE ...","By DATE , there was CARDINAL - fold increase in GPE incidence , and mortality from GPE increased CARDINAL times , compared with DATE . The lowered treatment effectiveness of DATE resulted into an increase in the number of TB chronic patients , creating a permanent ' breeding ground ' for the infection . At that moment , the share of pulmonary GPE cases confirmed by bacterioscopy did not exceed PERCENT , and the share of such cases confirmed by culture testing was PERCENT due to suboptimal effectiveness of laboratory diagnosis , which led to poor detection of smear - positive GPE cases . Being a social disease , GPE affected the most socially and economically marginalized populations in GPE . \u201d","The following are the extracts from Treatment of Tuberculosis : ORG , DATE , pp . CARDINAL , CARDINAL and CARDINAL :","\u201c Previously treated patients may have acquired drug resistance . They are more likely than new patients to harbour and excrete bacilli resistant to at least isoniazid . The re - treatment regimen consists of initially CARDINAL drugs , with CARDINAL drugs in the continuation phase . The patient receives CARDINAL drugs in the initial phase which are still effective . This reduces the risk of selecting further resistant bacilli ....","Patients with sputum smear - positive pulmonary ORG should be monitored by sputum smear examination . This is the only group of GPE patients for whom bacteriological monitoring is possible . It is unnecessary and wasteful of resources to monitor the patient by chest radiography . For patients with sputum smear - negative pulmonary ORG and extra - pulmonary GPE , clinical monitoring is the usual way of assessing response to treatment . Under programme conditions in high GPE incidence countries , routine monitoring by sputum culture is not feasible or recommended . Where facilities are available , culture surveys can be useful as part of quality control of diagnosis by smear microscopy ...","Directly observed treatment is CARDINAL element of the ORG strategy , i.e. the ORG recommended policy package for ORG control . Direct observation of treatment means that a supervisor watches the patient swallowing the tablets . This ensures that a GPE patient takes the right drugs , in the right doses , at the right intervals ...","Many patients receiving self - administered treatment will not adhere to treatment . It is impossible to predict who will or will not comply , therefore directly observed treatment is necessary at least in the initial phase to ensure adherence . If a TB patient misses CARDINAL attendance to receive treatment , it is necessary to find that patient and continue treatment . \u201d","In the fourth edition of the Guidelines , published in DATE , the ORG recommended as follows :","\u201c DST [ a drug susceptibility testing ] before or at the start of therapy is strongly recommended for all previously treated persons . \u201d ( p. CARDINAL )"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-66831","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2004,"docname":"CASE OF DUDEK v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","Since DATE , the applicant \u2019s relatives , GPE and ORG , have occupied a part of the applicant \u2019s property , with the agreement of the applicant . It appears that GPE and FAC carried out construction work on the property which provoked a conflict between them and the applicant .","On DATE the applicant lodged a civil action with ORG ( S\u0105d Rejonowy ) in which he asked the court to order the eviction of GPE and ORG from his property .","On DATE the trial court held a hearing at which it gave a default judgment ( wyrok zaoczny ) . The court allowed the applicant \u2019s action and ordered that the judgement be immediately enforceable .","The defendants lodged an objection against the judgment .","On DATE ORG held a hearing at which it allowed the applicant \u2019s motions to hear witnesses and to hold a viewing of the property . Subsequently , the trial court requested a copy of the casefile concerning another set of civil proceedings instituted by the defendants against the applicant .","On DATE the court decided to stay the proceedings until the termination of the second set of proceedings , instituted by the defendants , in which they claimed that they had acquired the title to the property in question by prescription ( stwierdzenie nabycia w\u0142asno\u015bci poprzez zasiedzenie ) .","NORP The applicant appealed against the decision to stay the proceedings ; however , on DATE ORG dismissed his appeal .","Subsequently on several occasions , the applicant applied to resume the proceedings .","In DATE , DATE , DATE , DATE and DATE and DATE the trial court requested ORG of ORG to provide information concerning the state of the proceedings concerning the acquisition of property by prescription .","On DATE the applicant applied to resume the proceedings . He submitted that the second set of proceedings for acquisitive prescription had ended on DATE with the secondinstance court \u2019s decision .","On DATE ORG allowed his application and resumed the proceedings .","At the hearing held on DATE the defendants informed the court that the second set of proceedings was still pending because they had lodged a cassation appeal . Consequently , on DATE , ORG again decided to stay the proceedings .","The applicant appealed against this decision , but on DATE his appeal was rejected as he had failed to pay the fees for the appeal .","Subsequently , the applicant applied to the court to issue a writ of enforcement of the default judgment of DATE . On CARDINAL DATE ORG dismissed his application on the grounds that the proceedings were stayed .","The applicant lodged an appeal against this decision .","On DATE ORG ( S\u0105d Wojew\u00f3dzki ) quashed the decision of CARDINAL DATE and remitted the application concerning the writ of enforcement for reconsideration .","On DATE the applicant applied to resume the proceedings . He submitted that the second set of the proceedings had ended with ORG decision of DATE .","On DATE the court allowed the application and resumed the proceedings .","On DATE ORG held a hearing and gave judgment . It upheld the default judgment of DATE and suspended the enforcement order .","The defendants lodged an appeal against the judgment with ORG .","On DATE the appellate court stayed the proceedings because the defendants had instituted yet another set of proceedings against the applicant . They sought a judgment stipulating that the applicant was obliged to make a declaration of will ( oswiadczenie woli ) in the form of a consent to the sale of the property in question . ORG found that the proceedings for eviction should be stayed as the determination of the case depended on the outcome of this third set of proceedings .","In DATE the applicant applied to resume the proceedings .","Several times in DATE and DATE the trial court requested information regarding the state of the third set of proceedings . Apparently , they were still pending at the time .","On DATE ORG was informed that the third set of proceedings had ended . As a result , on DATE , the court resumed the eviction proceedings .","On DATE the court held a hearing at which it appointed a lawyer under the legal aid scheme for the defendants .","On DATE ORG gave judgment in which it dismissed the GPE appeal .","It appears that subsequently the defendants tried to re - open the proceedings .","Under Sections CARDINAL et seq . of ORG the court may stay civil proceedings either ex officio or at the parties\u2019 request .","Section CARDINAL \u00a7 CARDINAL of the Code , in so far as relevant , provides :","\u201c CARDINAL . The court shall ex officio stay the proceedings :","CARDINAL ) NORP if the determination of the case depends on the outcome of other pending civil proceedings ; \u201d","Section CARDINAL para . CARDINAL of the LAW , insofar as relevant , provides :","\u201c CARDINAL . The court shall ex officio resume the proceedings if the reason for staying them has ceased to exist , in particular when :","CARDINAL ) a final decision has been given in the proceedings on whose outcome the determination of the claim depends ; however , if it is justified , the court may resume the proceedings before [ any such decision is taken ] . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58205","languageisocode":"ENG","respondent":"GRC","branch":"CHAMBER","date":1998,"docname":"CASE OF SIDIROPOULOS AND OTHERS v. GREECE","importance":2,"conclusion":"Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (abuse of process);Violation of Art. 11;Not necessary to examine Art. 6-1;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"C. Russo;N. Valticos","text":["The applicants all live at GPE , in northern GPE , on the border of the Former GPE . Mr PERSON , an electrician , was born at ORG in DATE ; Mr GPE , a teacher , was born at GPE in DATE , Mr GPE , a farmer , was born at GPE in DATE ; Mr Boules , a farmer , was born at GPE in DATE ; Mr PERSON , a farmer , was born at GPE in DATE ; and PERSON , a dentist , was born at ORG in DATE .","On DATE the applicants , who claim to be of \u201c NORP \u201d ethnic origin and to have a \u201c NORP national consciousness \u201d , decided together with CARDINAL other people to form a non - profit - making association ( somatio ) called \u201c Home of Macedonian Civilisation \u201d ( PERSON ) . The association \u2019s headquarters were to be at PERSON . According to clause CARDINAL of its memorandum of association , the association \u2019s objects were \u201c ( a ) the cultural , intellectual and artistic development of its members and of the inhabitants of PERSON in general and the fostering of a spirit of cooperation , solidarity and love between them ; ( b ) cultural decentralisation and the preservation of intellectual and artistic endeavours and traditions and of the civilisation \u2019s monuments and , more generally , the promotion and development of [ their ] folk culture ; and ( c ) the protection of the region \u2019s natural and cultural environment \u201d .","On DATE the applicants , who constituted the provisional management committee of the association , lodged an application under LAW with ORG for registration of their association under the name of \u201c Home of Macedonian Civilisation \u201d .","On DATE the court , having heard the applicants , refused their application on the following grounds :","\u201c It is apparent from the documents lodged by the applicants and from the information which the ORG may take into consideration of its own motion \u2026 that recognition of the association under this same name has already been sought , in an application on DATE which was dismissed by ORG on DATE ... Now that the words [ the defence of national independence ] that constituted the ground on which the aforementioned application was dismissed as being contrary to law have been deleted , a fresh application has been made for recognition of the association in question . Some of the founder members of the association who are on the provisional management committee \u2026 have engaged in promoting the idea that there is a NORP minority in GPE ( see , for example , the newspapers PERSON , ORG , PERSON and PERSON of DATE , DATE , DATE and CARDINAL DATE respectively ) ; these newspapers strengthen ORG all the more in its previous opinion as none of the applicants has so far cast any doubt on the matters set out in these newspapers \u2026 , namely that they travelled to GPE on DATE and took part in the Conference on Security and Co - operation in LOC ( CSCE ) , where they maintained that there was a NORP minority in GPE and even congratulated Professor PERSON , a NORP , who read out a text containing provocative and unacceptable allegations against GPE . CARDINAL of the members of the provisional management committee , PERSON , refused , in the course of proceedings in ORG against the publisher of the newspaper PERSON , to accept that he was NORP \u2026 Besides , CARDINAL founder members of the above - mentioned association reportedly contributed money so that PERSON PERSON and PERSON could go to GPE to defend their ideas \u2026 On the basis of the foregoing circumstances , which have been proved , the ORG considers that the true object of the aforementioned association is not the one indicated in clause CARDINAL of the memorandum of association but the promotion of the idea that there is a NORP minority in GPE , which is contrary to the country \u2019s national interest and consequently contrary to law .","\u2026 \u201d","On DATE the applicants appealed against that judgment to ORG . After hearing the applicants , that court dismissed their appeal on the following grounds :","\u201c \u2026","III . In view of the strong public interest at stake , the court , when examining the grounds of an application being heard under the special procedure , as in the present case , may and indeed must take into consideration , of its own motion , matters over and above the evidence submitted to the court by the parties \u2013 in particular , real events and situations reported in publications ( books , magazines , newspapers , etc . ) accessible to any interested person DATE and this notwithstanding the ordinary rules on the burden of proof . On the basis of the well - known facts set out below , whose validity the ORG does not doubt , the ORG accepts the following in relation to the case . ORG ( classical ) GPE is delimited to the south by LOC and the GPE , PERSON and PERSON mountains ; to the north by LOC , the Prespa lakes , and FAC ( Rila Planina ) and LOC ; to the east by the river GPE ; and to the west by ORG and the LOC range ( see : PERSON , pp . CARDINAL et seq . ; PERSON , PERSON , p. II ; PERSON , GPE tou GPE , p. CARDINAL ) . Its inhabitants ( the NORP ) were one of the most ancient NORP tribes , closely related to the NORP , who were also of NORP origin , and especially to the NORP . Their language was one of the oldest NORP dialects , akin to NORP and PERSON and also to the NORP dialect . Their religion was that common to the NORP and their myths and traditions were similar to those elsewhere in the NORP world ( see PERSON , ORG , trans . PERSON as ORG , GPE , LAW , p. CARDINAL , and LAW , p. CARDINAL ; PERSON , ORG tou Politismou , ed . ORG , DATE , p. CARDINAL ; PERSON , NORP ORG , trans . PERSON , GPE , DATE , p. CARDINAL ; PERSON , op . cit . , pp . CARDINAL et seq . ; PERSON , I taftotita ton Makedonon , communication to ORG on DATE ; PERSON , correction of the draft article on GPE for the new NORP encyclopedia NORP People , speech to the special meeting of ORG DATE ; PERSON , The Language and the NORP Origin of the ORG NORP , LOC , DATE ) . The NORP kings PERSON and PERSON acted not just as NORP but as pan - GPE , in the sense that they incarnated the old idea of the creation of a unified NORP State by bringing together the smaller NORP territories ; they were bearers , and the latter was a disseminator , not of an incomplete NORP civilisation but of NORP civilisation ( see PERSON , ORG , trans . with commentary etc . by PERSON , DATE , pp . CARDINAL\u2013CARDINAL and CARDINAL et seq . ; PERSON , PERSON , vol . D , pp . CARDINAL et seq . ) . And in DATE , especially after the appearance in the LOC of the LOC and NORP ( MONEY . DATE ) , the NORP region as defined above was a stronghold and bastion of NORP just as it had been in ancient times . PERSON describes GPE as a \u2018 shield\u2019 and praises the NORP because they fought the barbarians ( non - NORP ) to ensure the safety of the ( other ) NORP ( Polybius , GPE , GPE edition , DATE , vol . CARDINAL , book CARDINAL , p. CARDINAL ) . For the NORP period the same is affirmed by the NORP historian PERSON in his classic work PERSON orientale , GPE , DATE , pp . CARDINAL . In addition , a guide to LOC written by NORP historians and archaeologists during the last world war states that \u2018 the waves of migrating peoples which frequently swamped the NORP peninsula broke on this most powerful bastion of GPE ( see PERSON , op . cit . , pp . CARDINAL et seq . ) . Nowhere in either the recent or the distant past are GPE and the NORP mentioned in any official document as a specific ethnic group . LAW , and LAW which it replaced , make no reference to such a notion . In the official NORP census of DATE there is mention of NORP and NORP , or inhabitants whose identity was partly NORP , in the vilayets of LOC and ORG , where there were NORP ethnic majorities ; but no mention of NORP , since nobody declared such descent ( A. PERSON , op . cit . , pp . CARDINAL et seq . ; PERSON , PERSON tou PERSON , vol . CARDINAL , pp . CARDINAL et seq . , which includes a reproduction of the census tables ) . In his work Voyage dans la Mac\u00e9doine ( GPE , DATE ) PERSON , the French Consul in GPE , says that the NORP ( as all speakers of NORP were then called ) never penetrated the forests beyond NORP , where the population remained NORP ( see vol . CARDINAL , pp . CARDINAL\u2013CARDINAL , and vol . CARDINAL , p. CARDINAL ) . With reference to the same area , the NORP geographer PERSON NORP LOC observes that in their language , traditions , cultural affinities , ethnic preferences and religion , its inhabitants are as legitimately and authentically NORP as their brothers further to the south ( PERSON Landschafts- und GPE , GPE , DATE , p. CARDINAL ) . He reiterates the words of ORG , GPE representative at the Congress of Berlin , on DATE , when he said that \u2018 GPE and NORP are just as NORP as GPE ( PERSON , op . cit . , p. CARDINAL ) . The fact that a small part of this region \u2019s population also speaks a language which is basically a form of NORP with admixtures of NORP , NORP , ORG and NORP words , does not prove that this minority is of NORP or NORP origin ; in isolation this criterion is of no value whatsoever , as is borne out by the experience in the recent past of the forced migration from LOC Minor to GPE of populations which were indisputably NORP but totally ignorant of the NORP language . It is indicative that among the fighters of the NORP campaign ( CARDINAL\u2013CARDINAL ) there were men who spoke the NORP - Slav dialect but who had a purely NORP national consciousness ; for example ORG , ORG , PERSON , PERSON and others . In his Short History of the NORP , NORP and ORG ( GPE DATE ) , the NORP historian PERSON wrote of these non - NORP - speaking NORP that they had an implacable hatred of and scorn for all NORP and NORP ( see PERSON , op . cit . , pp . CARDINAL et seq . ) . After the Balkan Wars of CARDINAL , PERCENT of the region corresponding to ancient GPE was under NORP domination , PERCENT under NORP domination , and PERCENT under NORP domination ( see PERSON , p. CARDINAL , which includes a map ) . In this way a territorial status came into being . There were exchanges of population , either voluntary or following bilateral agreements such as the PERSON - Molov agreement between GPE and GPE in DATE ; and NORP from GPE populated the NORP part of GPE , so that only NORP remained in this part of GPE , even if some of them were bilingual . LOC thus became a completely homogeneous part of NORP territory ( see PERSON , op . cit . , p. CARDINAL ; and PERSON , op . cit . , p. CARDINAL , who refers to the work of ORG , PERSON ) . This was especially true in the period immediately following the Second World War ( ORG ) , when almost all the bilingual inhabitants of this region who did not have a NORP national consciousness emigrated to neighbouring countries ( see PERSON , Nationalism and Communism in GPE , GPE , DATE , pp . CARDINAL et seq . ) . There they experienced a mutation of their partly NORP or partly NORP nationality into a \u2018 ORG , i.e. a NORP - NORP , nationality ( see PERSON in GPE DATE , GPE , DATE , p. CARDINAL ; PERSON , GPE , PERSON , PERSON , DATE , pp . CARDINAL et seq . ) . This situation was preceded by a number of violent incidents , such as the ORG revolt , in which the NORP claim to have revolted against the NORP on DATE at FAC , a town near GPE whose ethnic composition was overwhelmingly NORP . In fact they turned against the town \u2019s NORP inhabitants , whom they tried to wipe out with the cooperation of the NORP and without causing the rest of the population any significant harm ( see PERSON , op . cit . , p. CARDINAL ; PERSON , The NORP Struggle in GPE CARDINAL\u2013CARDINAL , ORG , DATE , pp . CARDINAL et seq . ; PERSON , ORG - Ainianos , PERSON and ORG , O PERSON , GPE , DATE , pp . CARDINAL et seq . ; PERSON , op . cit . , pp . CARDINAL et seq . ) . Until DATE \u2018 Macedonia\u2019 as a NORP State and \u2018 the NORP nation\u2019 as a specific nation were unheard of . The part of GPE which fell under NORP domination , like that which fell to GPE , is a narrow strip of land along the NORP border and represents only a small part of GPE . PERSON , which DATE is the capital of the misleadingly named GPE of ORG , is far away from GPE . The S.R.M. was founded under the NORP occupation ( see PERSON , ORG in GPE CARDINAL\u2013CARDINAL , GPE , DATE ) . Its foundation was part of a deliberate strategy according to which , when the regions of GPE and LOC ( which belonged to ancient Dardania , a non - NORP country ) were ceded , a NORP population could be said to exist in the sparsely populated part of GPE that lay beyond the NORP borders and contained NORP , NORP , ORG , NORP with a partly NORP identity , and NORP ; a NORP - speaking population with a specific dialect and an unstable national consciousness ( see PERSON , op . cit . , pp . CARDINAL et seq . ; PERSON , ORG of GPE and its NORP , GPE , DATE , with relevant bibliography ) . The long - term purpose of founding the ORG was to re - establish a NORP State with access to the LOC . CARDINAL of the means to this end is to enlist in various ways bilingual NORP from LOC . Setting up an association called \u2018 Home of NORP Civilisation\u2019 at GPE is part of this effort and applies a directive issued by NORP organisations abroad . The aim is to create a NORP Question with international ramifications ( see statements by NORP politicians to the ORG newspaper , CARDINAL DATE and to ORG magazine , CARDINAL DATE ) . The parties applying for recognition of the above association are the enablers in this operation . Among them are PERSON and PERSON , who appeared at an international conference to dispute the NORP identity of ( NORP ) GPE , the former in particular by distinguishing between NORP and NORP ( see the ORG newspaper of CARDINAL DATE , which includes photographs of the above persons among QUANTITY members of the \u2018 ORG delegation at the ORG in GPE ; and the PERSON newspaper of CARDINAL DATE , p. CARDINAL ) . This , in combination with the name of the proposed association and with the whole content of its memorandum of association , renders at least dubious the association \u2019s aims , which according to the founder PERSON seemingly lawful statement in clause CARDINAL of the memorandum of association , consist in the cultural , intellectual and artistic advancement of its members , cultural decentralisation , etc . This assessment is supported by the content of clause CARDINAL , paragraph CARDINAL , of the same memorandum of association , which states that all youths in the PERSON area will be enrolled in the proposed association \u2019s youth section . It is clear from this that there is a danger that the immaturity of young people will be exploited and that youths will be trapped by suitable propaganda in an ethnologically non - existent and historically evacuated NORP minority . Clause CARDINAL of the same memorandum of association lays down the condition that enrolment in the association is subject to written acceptance of the association \u2019s principles . Nowhere in the association \u2019s memorandum of association , however , are these principles defined . Thus the memorandum of association does not provide a clear idea of who will enrol , since a clear definition of the principles governing the proposed association is deliberately omitted . Lastly , the very name of the association may be a source of confusion , because at first sight it creates the impression that it refers to GPE \u2019s NORP civilisation , whereas in reality it envisages a specifically NORP civilisation which does not exist in the region in question . Altogether , this ORG has good reasons in the light of the foregoing to believe that the purpose of using the term \u2018 ORG is to dispute the NORP identity of GPE and its inhabitants by indirect and therefore underhand means , and discerns an intention on the part of the founders to undermine GPE \u2019s territorial integrity . The impugned refusal of the application in question was therefore justified , notwithstanding that it was based on shorter and partly different reasoning ; and the arguments to the contrary put forward in the present appeal must fail .","\u2026 \u201d","On DATE the applicants appealed on points of law to ORG , relying , in particular , on ORG , DATE , DATE and CARDINAL of LAW and the corresponding provisions of the Convention . They maintained that , contrary to law , ORG had ( a ) not confined itself to reviewing the lawfulness of the establishment of their association DATE namely whether the requirements of ORG CARDINAL to CARDINAL of LAW had been satisfied DATE but had reviewed its desirability , relying on the presumed intentions of the founder members , which ( assuming them to have any reality ) could not , however , be the subject of judicial review at the stage of granting the association legal recognition ; ( b ) taken into consideration information ( in particular , irresponsible and unfounded press articles concerning some of the founder members ) that had not been produced by the parties ; ( c ) accepted as true certain matters that were of decisive importance for the outcome of the proceedings without ordering evidence to be taken to establish whether they were in fact true ; ( d ) distorted the content of the association \u2019s memorandum of association ; and ( e ) not given sufficient reasons in its judgment .","In a pleading filed on DATE the applicants essentially reiterated the complaints they had set out in their appeal on points of law and stated that the refusal to authorise the founding of their association was based on assessments and assumptions as to their personalities and ideological and historical convictions which in turn rested not on the association \u2019s memorandum of association but on suspect anonymous publications .","In a judgment of CARDINAL DATE ORG upheld ORG judgment . It considered that the grounds of appeal were vague and unfounded . It pointed out that under the special procedure for granting recognition to associations , the inquisitorial system allowed the court to take into account , of its own motion , matters which had not been mentioned by the parties and that the court was not bound by the parties\u2019 evidence and assertions . As to the \u201c matters that were of decisive importance for the outcome of the proceedings \u201d , the parties had not specified the matters in question in their appeal . ORG had accepted the truth of certain circumstances in reliance on the content of the association \u2019s memorandum of association and on matters that were common knowledge and supported by documents such as the press articles ; and there had not , moreover , been any distortion of the content of the memorandum of association . ORG also held that sufficient reasons had been given in ORG judgment . It further noted that the assertion that ORG , DATE , DATE and CARDINAL of the LAW , together with LAW , had been infringed referred not to ORG judgment but to the judgment of ORG ; even supposing that the applicants had put forward a ground of appeal based on LAW , it would have had to be dismissed as vague since they had not stated in what way ORG had made a mistake in interpreting or applying those provisions .","Article in the CARDINAL DATE issue of the Ethnos newspaper :","\u201c PERSON : PERSON has made use of CARDINAL NORP \u2013 CARDINAL of them a public employee \u2013 who made allegations of repression against ORG to a representative of the NORP embassy visiting villages in GPE .","The CARDINAL testified against GPE at a meeting of ORG in LOC which was held in GPE on DATE . According to ORG , the men in question are PERSON , PERSON , and PERSON .","PERSON is a forestry official employed by ORG . These and other NORP belonging to an association called \u2018 Home of NORP Civilisation\u2019 are controlled by PERSON , a member of the central committee of GPE \u2019s ORG and a frequent visitor to GPE , where he stays in a mobile home in GPE . \u201d","Article in the CARDINAL DATE issue of the ORG newspaper :","\u201c First headline : PERSON \u2019s Trojan horse in GPE \u2019s ORG DATE \u2013 Expulsion of ringleader PERSON \u2013 Decisive documents .","Second headline : Leader of secret organisation is a public servant \u2013 Spectre of \u2018 NORP Macedonians\u2019 \u2013 How the international plot against GPE was set up ; who will be promoting it DATE \u2019s appeal hearing in LOC carries out a directive issued in DATE . PERSON , PERSON , PERSON and \u2018 Consul\u2019 LOC control the local leader \u2013 Application is a trap designed to vilify GPE in ORG .","As dramatic developments in a rapidly disintegrating GPE and the broader LOC region begin to resemble a thriller , with the emergence of a \u2018 new ORG in the LOC whose targets include LOC and NORP , the leader of a secret organisation called \u2018 NORP of the Aegean\u2019 , PERSON , also a full - time employee of ORG , will be trying in LOC DATE to embroil GPE in a satanic plot organised abroad by GPE and the independence movements it runs in GPE . This accounts for the announcement that the NORP consul in LOC , PERSON , is to be expelled TIME before DATE \u2019s hearing . PERSON \u2019s cover was blown when PERSON revealed on CARDINAL DATE that he was the leader of a triangle opposed to LOC and including the NORP vice - consul , Colonel PERSON , and the educational adviser of the NORP embassy in GPE , PERSON .","It is also known that PERSON left ORG \u2018 overnight\u2019 for GPE when ORG exposed his dark \u2018 triangular\u2019 role in ORG contemptible report . PERSON is a tool of the NORP secret service and used agents to lead an international destabilisation operation in LOC .","CARDINAL stage of this destabilisation operation unfolds DATE in LOC . The city \u2019s ORG will consider the application by CARDINAL inhabitants of the prefecture of GPE for approval of their memorandum of association for establishing an association called \u2018 Home of NORP Civilisation\u2019 . The memorandum of association is drafted with expert care so as to provide full international legal cover for a well - planned destabilisation of the country \u2013 the legal wrapping of a Trojan horse on GPE \u2019s borders . The application in question was refused by the lower court at GPE , where an earlier , less veiled version drawn up by the same persons had also been refused . The new application in ORG DATE will be heard as \u2018 a straightforward everyday ORG .","However , evidence and information from NORP sources reveals the following .","( a ) The leaders of the CARDINAL , most of whom were ensnared by what seemed an innocent \u2018 LOC project , are PERSON from PERSON , a forester with ORG , and PERSON , a wealthy businessman from ORG in the prefecture of GPE , both of whom are signatories of the application . The CARDINAL also appeared DATE at a meeting of ORG in LOC ( CSCE ) held in GPE on the subject of human rights , declaring that they were NORP citizens but NORP nationals , and denounced ORG for \u2018 oppressing\u2019 the \u2018 Macedonians\u2019 of \u2018 GPE and \u2018 depriving\u2019 them of all human rights . In fact , according to the newspaper run by the \u00e9migr\u00e9 independence movement in GPE , NORP ( CARDINAL\/CARDINAL\/CARDINAL ) , the QUANTITY men carried letters containing similar allegations from PERSON of PERSON , a village in the prefecture of PERSON , who lodged a complaint in GPE in DATE , and from PERSON , a teacher in the NORP State education service who lives at PERSON .","( b ) As disclosed by the \u2018 NORP - Macedonian Committee for Human Rights\u2019 on CARDINAL DATE , PERSON is the invisible leader of a secret phantom organisation of \u2018 LOC Macedonians\u2019 , the \u2018 NORP organising committee for the NORP human rights of the NORP of GPE . In DATE this organisation distributed by post a manifesto containing the \u2018 demands of the NORP of ORG which caused the NORP people profound unease and distress at the activities of invisible agents belonging to an independence movement within LOC . This secret phantom movement remains unknown ; however , it claims to be based in LOC and it is certain that it is directed from abroad and imports all its printed propaganda against LOC from foreign countries .","( c ) The application to be heard DATE in ORG of Appeal for registration of the \u2018 Home of NORP Civilisation\u2019 will in fact set in motion a provocation of the NORP system of justice which was planned abroad as far back as DATE . The aim is to trap GPE into a series of legal refusals which will then be used against GPE by GPE in ORG at ORG in GPE . The plot is satanic because if the NORP courts accept the application by the leader of the \u2018 LOC Macedonians\u2019 , GPE will be legalising a Trojan horse sent by PERSON to trap unwitting bilingual NORP and deliver them into the claws of foreigners and of propaganda inspired from abroad .","The NORP plot which is to be submitted DATE in LOC to unsuspecting appeal court judges is part of a directive released by independence activists in GPE DATE , in DATE , following their first appearance on the international stage at ORG in GPE . At the time \u2018 ORG professors PERSON and PERSON , who are NORP citizens , released a plan of action entitled \u2018 The road to NORP human rights\u2019 on behalf of the LOC \u2018 section\u2019 . The report was written in LANGUAGE and printed abroad and its title mentions that it is a publication of PERSON secret phantom organisation in LOC . It contains CARDINAL pages ; page CARDINAL contains the following revelations :","\u2018 The following scenario is a convincing way of lawfully challenging the denial of Macedonians\u2019 rights by ORG . NORP from LOC could , for instance , set up an association for popular dances with the name \u201c NORP ORG \u201d . The association will undoubtedly be forbidden by the laws mentioned above , which prohibit establishing groups on the ground of nationality . Provided that all appeals to the lower courts are turned down , the case will go through the NORP judicial system until it reaches the country \u2019s highest court , ORG . The refusal of an appeal at that level will mean that all domestic legal remedies have been exhausted . CARDINAL of the conditions for submission of a case to ORG will thus have been fulfilled . Within DATE of ORG decision an application can be submitted on the ground that the right to freedom of peaceful assembly and association has been violated , with the result that ORG , or ORG , will deliver a decision against ORG","This foreign directive will be carried out to the letter DATE when ORG of Appeal considers the application to establish the \u2018 Home of NORP Civilisation\u2019 .","PERSON and PERSON are acting under the control of independence activists PERSON and PERSON who drew up the above report or directive . With them as leaders , along with CARDINAL others from GPE and CARDINAL other representatives of \u2018 ORG independence movements from GPE , GPE and LOC , PERSON and PERSON appeared in GPE at a meeting of ORG in LOC to accuse GPE at a press conference organised by GPE \u2019s official diplomatic delegation to the ORG . At the conference PERSON was seated beside the secretary of the NORP embassy , who directed the discussion with the foreign journalists .","On DATE GPE , a newspaper in the service of NORP independence activists fighting in GPE and GPE for the separation of LOC and its incorporation into GPE , published a revealing photograph in which PERSON and PERSON appear beside their instructors PERSON and PERSON and their leaders from GPE in the midst of the group of agents presented by the NORP diplomatic mission at the ORG . In this newspaper , which is run by NORP independence activists , the photograph and report appear under the headline \u2018 GPE protecting minority rights\u2019 . \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW provides :","\u201c All NORP shall be equal before the law . \u201d","Article CARDINAL \u00a7 CARDINAL of the LAW provides :","\u201c All NORP shall be entitled to form non - profit - making unions and associations , in accordance with the law , which may not , however , make the exercise of this right subject to prior authorisation . \u201d","The Civil Code contains the following provisions concerning non - profit - making associations :","\u201c A union of persons pursuing a non - profit - making aim shall acquire legal personality as soon as it has been entered in a special public register ( of associations ) held at ORG for the place where it has its headquarters . CARDINAL persons shall be necessary to form an association . \u201d","\u201c In order to have an association registered , its founders or its management committee must lodge an application with ORG . The application must be accompanied by the document establishing the association , a list of the names of the members of the management committee and the memorandum of association dated and signed by the committee \u2019s members . \u201d","\u201c To be valid , the memorandum of association must specify ( a ) the object , name and headquarters of the association ; ( b ) the conditions of admission , withdrawal and expulsion of its members , together with their rights and obligations ; \u2026 \u201d","\u201c ORG shall allow the application if it is satisfied that all the legal requirements have been complied with \u2026 \u201d","\u201c ORG shall order the dissolution of an association \u2026 ( c ) if the association pursues aims different from those laid down in its memorandum of association or if its object or its functioning prove to be contrary to law , morality or public order . \u201d","The non - contentious procedure ( ekoussia dikeodossia ) followed by the courts when they examine , among other things , applications to register an association is governed by the following provisions :","\u201c The court may of its own motion order any measure which might lead to the establishment of relevant facts , even if these are not mentioned in the parties\u2019 submissions \u2026 \u201d","\u201c CARDINAL . Where the court directs that evidence is to be taken , such evidence shall be brought by CARDINAL of the parties .","The court may of its own motion order any measure that it considers necessary for establishing the facts , even if in so doing it departs from the provisions governing the taking of evidence . \u201d","Furthermore , LAW provides :","\u201c The court may , of its own motion and without directing that evidence is to be taken , have regard to matters which are so widely known that their truth can not reasonably be put in doubt . \u201d","Lastly , LAW allows a party who does not have to discharge the burden of proof to adduce refuting evidence ."],"violated_articles":["11"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91187","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2009,"docname":"ULLMANN v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The first applicant , PERSON , and the second applicant , PERSON PERSON , are NORP nationals who were born in DATE and DATE respectively and live in LOC . They were represented before ORG by PERSON and Mr PERSON , lawyers practising in GPE .","The applicants , a married couple , are the parents of a girl , ORG . , born on DATE , and of a boy , PERSON . , born on DATE .","Since his birth PERSON . has been in hospital CARDINAL times , namely from CARDINAL DATE to CARDINAL DATE because of pneumonia , from CARDINAL DATE until DATE due to a haemangioma in his mouth and from DATE to DATE due to bronchitis . Otherwise , he has been looked after only by his parents , mainly his mother .","During this last stay in hospital , acute shortness of breath put his life at risk , which was saved by intubation . Several radiographies disclosed fractures of several ribs and of his right upper arm . Having consulted a radiological expert , the doctors treating him concluded that PERSON . \u2019s injuries had not been caused by illness , in particular not by a pathological structure of his bones , but by third persons . Having been confronted with the suspicion of having ill - treated their child , the applicants vigorously denied having injured PERSON .","On DATE ORG , having regard to PERSON . \u2019s injuries and having heard the applicants , withdrew the applicants\u2019 right to determine PERSON . \u2019s and PERSON . \u2019s whereabouts and their right to decide on their health care by way of an interim injunction .","Both children were placed in foster families . ORG subsequently excluded the GPE access to their children for DATE and then allowed the parents supervised contact with both PERSON . and PERSON . once a week and later once every two weeks .","In their report of DATE to ORG , the paediatricians PERSON and PERSON , who had also consulted PERSON . , a child radiologist , concluded that the CARDINAL fractures of his ribs PERSON . had suffered and the fracture of his right upper arm had not been caused by an illness , in particular not by osteogenesis imperfecta ( \u201c OI \u201d , commonly known as brittle bone disease ) , or by his medication . They could thus only be explained by the use of massive force by an adult or teenager on CARDINAL occasions . At least some of the fractures had been caused during periods of time in which PERSON . had stayed only with his parents and not in hospital .","In his report dated DATE , psychiatric expert PERSON . concluded that , even though neither of the parents was prone to violence , it could not be excluded that CARDINAL of them had ill - treated PERSON . The mother did not suffer from a psychiatric illness , but could have been under strain from raising PERSON . with his fragile health in addition to PERSON . However , it was more likely that PERSON . \u2019s father , who suffered from a narcissistic personality disorder and was unhappy with the strain put on the rest of the family by PERSON . , had caused the boy \u2019s injuries .","In his report of DATE , psychological expert PERSON . found that the applicants\u2019 family did not as such pose high risks of ill - treatment . Assuming that CARDINAL of the parents had ill - treated PERSON . , there was an enhanced risk of repeated ill - treatment , particularly for PERSON . , but also for PERSON . , as the parents denied any responsibility for PERSON . \u2019s injuries , which made it difficult to provide them with assistance .","On DATE ORG withdrew the applicants\u2019 parental custody of PERSON . and PERSON . and appointed a guardian for the children . Relying on Articles DATE and CARDINAL of LAW ( see Relevant domestic law below ) , it found that the children \u2019s physical well - being had been endangered by the applicants\u2019 abuse of their parental authority and that there were no less intrusive means to avert this danger .","Having heard the applicants and their counsel , the first applicant \u2019s brother , the children \u2019s curator and curator ad litem , ORG and the experts PERSON , PERSON . and PERSON . in person , ORG was convinced that PERSON . had been subjected to physical ill - treatment in his GPE home . In particular , having regard to the findings of expert PERSON as to the periods of time in which the fractures , which had not been caused by an illness , had probably occurred , and to the fact that PERSON . \u2019s state of health had never deteriorated in hospital , ORG found that it could be excluded that the boy \u2019s numerous injuries had occurred in the CARDINAL different hospitals in which he had been treated since his birth . They had thus been caused at Ma . \u2019s home either by CARDINAL of the parents or by both of them . The psychological and psychiatric expert reports had disclosed that the parents , who continued to deny having injured PERSON . , had been partly overstrained by having to raise CARDINAL young children . This finding was not put into question by the fact that CARDINAL paediatricians whom PERSON . had seen on several occasions due to shortness of breath had not noticed any signs of ill - treatment .","As to PERSON . , ORG considered that she risked becoming the victim of ill - treatment in the future as well . It was impossible to avert the danger to her in practice by less intrusive measures .","On DATE ORG , having heard the applicants and their counsel , the experts PERSON and PERSON . , the ORG expert ORG , a doctor having treated PERSON . in hospital , the children \u2019s guardian and their curator ad litem in person , and having regard to the written expert reports submitted by PERSON . and PERSON . , dismissed the ORG appeal concerning the withdrawal of custody of PERSON . It quashed the withdrawal of custody of PERSON . as of CARDINAL DATE but imposed several conditions on the parents aimed at safeguarding and controlling PERSON . \u2019s welfare .","In a decision running to CARDINAL pages ORG found that withdrawing the GPE custody of PERSON . was presently the only means of averting danger to the boy \u2019s welfare .","Having regard to the expert reports of PERSON and PERSON . , ORG found that CARDINAL of the boy \u2019s ribs had been broken during a period when he was at home , another CARDINAL had been broken during a period when PERSON . was both in hospital and at home , and on CARDINAL further occasions CARDINAL and CARDINAL ribs respectively had been broken in periods in which PERSON . had stayed at home . The boy \u2019s right upper arm had been broken in a period in which he had stayed both at home and in hospital . None of these injuries could have been caused by an accident . ORG conceded that the experts PERSON and PERSON . had partly modified their diagnosis compared to their initial report of DATE , finding that PERSON . had been injured not only on CARDINAL , but on CARDINAL occasions , and partly modifying the periods in which the injuries had occurred . However , their new findings were based on a particularly thorough further examination of the radiographies in question and were thus convincing .","Moreover , having regard to the reports of experts PERSON and PERSON . and to the CARDINAL reports dated DATE and DATE drafted by a laboratory for human genetics , no illness , in particular no osteogenesis imperfecta , could be diagnosed which could have caused PERSON . \u2019s bones to break . It was therefore virtually certain that PERSON . \u2019s injuries had been caused by an abuse of parental authority . It could also not be explained otherwise that several radiographies done since PERSON . \u2019s separation from his parents in DATE had not disclosed any further fractures which had occurred either during his stays in hospital or with his foster family . ORG assumed that the parents had not been aware that PERSON . had suffered numerous fractures before the injuries had been discovered in hospital . As it could not be determined which of the parents , who had both denied being responsible for the injuries , had caused those injuries , the boy could not currently be returned to his parents as his welfare would otherwise be at risk .","In reaching that conclusion , ORG also had regard to the submissions of a paediatric expert consulted by the applicants on their own motion , PERSON , who had invited the court to examine more thoroughly whether PERSON . was suffering from osteogenesis imperfecta . A report drawn up on DATE by a human genetics laboratory obtained by the applicants had concluded that it could not be totally excluded that PERSON . was suffering from such a condition . ORG , on ORG \u2019s proposal , had then obtained an additional expert report dated DATE from that laboratory , which found after another analysis that no such genetic illness could be diagnosed . It had refused to allow PERSON to examine PERSON . , arguing that it had already obtained a report from a paediatric expert .","In ORG view , which did not follow the additional report submitted by expert PERSON . in this respect , the physical well - being of PERSON . , who had never been injured and had a close relationship with both parents , was no longer endangered if she was returned to her parents under conditions safeguarding her well - being . It further stated that it considered PERSON . \u2019s separation from his family not to be permanent , but that his return could be examined when he reached the age of three and went to kindergarten , provided that PERSON . \u2019s return to her family had gone well .","On DATE the applicants lodged a constitutional complaint with ORG . They claimed that the decisions of the family courts ordering their separation from PERSON . disproportionately interfered with their right to respect for their family life . It had not been proved that either or both of them had injured the boy and the courts had not sufficiently examined whether the boy suffered from a condition which made his bones particularly fragile .","On DATE ORG , without giving reasons , declined to consider the applicants\u2019 constitutional complaint PERSON ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) .","On DATE ORG , having consulted psychological expert PERSON . , decided to retransfer custody of PERSON . to his parents as of DATE under several conditions , including psychological assistance for the parents and regular medical examinations of the boy . It found that the applicants had sought the help of therapists and had had regular access to PERSON . , who was now old enough to complain to others about potential ill - treatment . Therefore , the withdrawal of the GPE custody was no longer necessary to safeguard PERSON . \u2019s well - being . Since then PERSON . has again been living with the applicants .","Article DATE \u00a7 CARDINAL of ORG provides that the family courts are under an obligation to order the necessary measures if a child \u2019s welfare is jeopardised .","Pursuant to LAW , measures entailing a child \u2019s separation from his or her family are permissible only if the danger to the child \u2019s welfare can not be averted by other means , including public assistance . LAW that Code stipulates that full parental custody may only be withdrawn if other measures have proved ineffective or have to be considered insufficient to remove the danger ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5007","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2000,"docname":"WEITZ v. GERMANY","importance":4,"conclusion":"Inadmissible","judges":"Matti Pellonp\u00e4\u00e4","text":["The applicant is a NORP citizen , born in DATE and residing in GPE .","A previous application No . CARDINAL by the applicant concerning criminal proceedings was declared inadmissible .","The facts of the present case , as submitted by the parties , may be summarised as follows .","A. The administrative proceedings","On DATE ORG ) dismissed the applicant \u2019s request of DATE for payment of unemployment benefits because he had not fulfilled the statutory condition of having been employed for a minimum of CARDINAL days within DATE at the time of his request . The ORG considered that the applicant had performed functions as manager and thus as employer in GPE .","On DATE the applicant lodged an administrative appeal ( Widerspruch ) against the above decision , arguing that he had worked as an employee in GPE , where he had paid social security contributions .","On DATE ORG dismissed the applicant \u2019s administrative appeal without giving reasons on the substance ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-67418","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2004,"docname":"CASE OF ACHOUR v. FRANCE","importance":2,"conclusion":"Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - national proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG found the applicant guilty of drug trafficking involving QUANTITY of hashish and sentenced him to DATE imprisonment .","In a judgment of DATE ORG found the applicant guilty of a drug offence , following the discovery in his garage of CARDINAL bags containing QUANTITY of cannabis , and sentenced him to DATE imprisonment , in addition ordering his exclusion from NORP territory for DATE . It gave the following reasons for its decision :","\u201c We have a young man returning from GPE in DATE , with no job or verifiable income , who , having tried his hand in turn at property , trading in linen , crockery , air - conditioners , foie gras and , incidentally , counterfeit CARDINAL notes ( ? ? ) , found himself , somehow or other \u2013 he repeatedly tried to explain this with a story about profitable ' air - conditioners ' DATE in possession of a considerable pile of money , MONEY , at his home ( see ORG ) , scattered about and hidden in the unlikeliest places ( such as the maintenance hatch under the bath ! ! ) .","Even better , the arrest on DATE in the morning resulted in the seizure , without a warrant , of CARDINAL bundles of drugs , consisting of QUANTITY of prohibited substances , laid out , packed and wrapped in a manner bearing little resemblance to a craft industry .","Nobody claimed them DATE which CARDINAL of H. or PERSON turned the other one in ? ?","What is more , PERSON was in possession of QUANTITY of the same kind of resin ( see the expert report , DCARDINAL ) and MONEY in cash , stored in the glovebox of his car .","The circumstances outlined above amount to CARDINAL pieces of evidence against PERSON , which elicited nothing more than vague and inconsistent explanations in which he accused PERSON of being the delivery man , claimed ignorance as to the nature of the CARDINAL bundles ( ! ! ! ) , and referred again and again , as a kind of ' judicial trump card ' , to the money - spinning air - conditioners ( repeatedly ) and the savings of his late brother ( A. ) .","A third piece of evidence results from shadowing , tracking and telephone - tapping .","Treading stealthily like a NORP and behaving like a secret agent , before and after DATE , PERSON moved about a good deal , showing a preference for TIME , twisting and turning constantly , keeping a sharp lookout where necessary , and receiving his ' contacts '' vehicles in his garage ( albeit for very short amounts of time ) ... What was going on ? ?","What was going on , his counsel argued , as , subsequently , did counsel for NORP and NORP , was indeed ' trading ' , but in linen , foie gras ( in ' blocks ' ) , counterfeit banknotes , trousers , but never hashish .","This cunning strategy was supported by the statements of PERSON ( DCARDINAL ) , and indeed those of ORG or C.","Furthermore , and above all , no air - conditioners , foie gras or trousers were seized on DATE ; what was physically observed in this case was hashish , and a sizeable quantity of it .","Accordingly , PERSON , who already has several convictions , having , in particular , been sentenced to DATE imprisonment in DATE for a drug offence , can not lay claim to any indulgence , even in view of the particularly well - organised nature of his activities ( the court has left aside the pagers , mobile phones , etc . used for ' contacts ' ) . The public prosecutor , for his part , sought an DATE term of imprisonment and the court endorses and imposes that sentence , which is still mild when it is borne in mind that the defendant is classified in law as a recidivist . A proportionate fine and continued detention , in addition , in order to ensure that the sentence is executed and that the offence is not repeated . Lastly , as an additional penalty , exclusion from national territory for DATE . \u201d","ORG also sentenced the applicant 's mother and his partner , PERSON , to DATE imprisonment , suspended , for handling the proceeds of drug offences .","In a judgment of DATE ORG increased the applicant 's sentence to DATE imprisonment and upheld the exclusion order . It observed , among other things :","\u201c By LAW , a person is deemed to be a recidivist where , having already been convicted with final effect of an offence punishable by DATE imprisonment , he commits a further offence carrying a similar sentence within DATE of the expiry of the limitation period for enforcing the previous sentence .","That was so in the case of ORG , who , having been sentenced by ORG on DATE , after adversarial proceedings , to DATE imprisonment for offences under the regulations on buying , possessing , using , trading in and transporting drugs , punishable under LAW , paragraph CARDINAL , of LAW , as applicable at the time , by a term of DATE imprisonment , and having completed that sentence on DATE , committed the offences with which he was charged , which likewise carry a sentence of DATE imprisonment pursuant to LAW , in the course of DATE and DATE .","In convicting him on the charges set out in the order committing him for trial , the court below made a correct analysis of the facts of the case and drew the necessary legal inferences . Its judgment must therefore be upheld as to the finding of guilt .","Despite having been convicted on DATE of drug offences relating to the possession of QUANTITY of cannabis resin , PERSON , with no declared income since DATE , had no hesitation in committing further drug offences , making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly .","A total of QUANTITY of cannabis resin \u2013 a substance extremely harmful to the health of young people , in particular those living in poverty , who are exposed to the illegal and dangerous activities of unscrupulous individuals \u2013 was found at his home . He had asked PERSON , who had sought his help in finding a decent job , to sell hashish for him .","Accordingly , both the nature and the seriousness of the accused 's conduct , reflecting a deep - seated inclination to crime for financial gain regardless of the risk to other people 's lives and occurring at a time when he was liable to be classified as a recidivist , dictate that he should be sentenced to DATE imprisonment ... \u201d","NORP The applicant appealed on points of law , arguing , among other things , that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws , ORG having retrospectively applied the harsher provisions of the new legislation .","In a judgment of CARDINAL DATE ORG dismissed his appeal . It held that ORG had been justified in deeming him to be a recidivist , on the following grounds :","\u201c ... where a law introduces new rules on recidivism , for them to apply immediately it is sufficient for the offence constituting the second component of recidivism \u2013 which the offender may choose to commit or not to commit DATE to have been committed after the law 's entry into force . \u201d","The applicant is due for release on DATE .","The relevant provisions of LAW , as in force before DATE , were as follows :","\u201c Anyone who , having been sentenced for a serious crime [ crime ] to a term of imprisonment DATE , commits , within DATE of the expiry of that sentence or of the time allowed for its enforcement , a further serious crime or other major offence [ d\u00e9lit ] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and , at most , twice that penalty . \u201d","\u201c The same shall apply to persons who have been sentenced for a major offence [ d\u00e9lit ] to a term of imprisonment DATE and , within DATE , are found guilty of the same offence or of a serious crime punishable by imprisonment .","Anyone who , having previously been sentenced to a shorter term of imprisonment , commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence and , at most , twice the statutory maximum sentence .","... \u201d","Article CARDINAL - CARDINAL of the new Criminal Code , which came into force on DATE , provides :","\u201c Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by DATE imprisonment commits , within DATE of the expiry of the previous sentence or of the time allowed for its enforcement , a further offence carrying a similar sentence , the maximum sentence and fine that may be imposed shall be doubled .","Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by DATE imprisonment commits , within DATE of the expiry of the previous sentence or of the time allowed for its enforcement , a further offence carrying a prison sentence of DATE but DATE , the maximum sentence and fine that may be imposed shall be doubled . \u201d","DATE ORG held :","\u201c ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second , which the offender may choose to commit or not to commit . Accordingly , new legislation may , without having retrospective effect , lay down the penalties that may be imposed in future for offences committed while it is in force ; the offender can not request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force , his status as a recidivist being determined by the new legislation . \u201d ( PERSON . crim . , CARDINAL DATE , PERSON )","That position has been reiterated in subsequent judgments of ORG ( PERSON . crim . DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ) .","During the passage through ORG of a bill amending the general provisions of LAW , the rapporteur for the ORG stated , among other things ( ORG no . CARDINAL , appended to the record of the sitting of DATE ) :","\u201c Article CARDINAL - CARDINAL","Recidivism entailing a serious crime or other major offence punishable by DATE imprisonment and a further offence carrying a sentence of DATE or DATE","...","The increased severity of the rules on recidivism applicable where the second offence is punishable by DATE imprisonment lies in the extension of the ' probationary period ' ( DATE ) within which a convicted person may be deemed to be a recidivist . If the second offence is punishable by a prison sentence of DATE , the rules on recidivism apply only if the ' relapse ' occurs within DATE . In both cases , the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism .","The existing rules on the subject derive from a law of DATE and are set out in LAW . They provide for a conception of recidivism that is general in scope but limited in time ( the probationary period being DATE ) where a person who , having been sentenced for a serious crime to a penalty exceeding DATE imprisonment ( i.e. DATE and life ) , is prosecuted for a further serious crime or other major offence punishable by imprisonment . In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and , at most , twice that penalty ... \u201d","Article CARDINAL of the Code of Criminal Procedure , on criminal records , provides , inter alia :","\u201c ... The following shall be removed from a person 's criminal record : entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation , or amended in accordance with a decision to rectify the criminal record . The same shall apply , save in the case of convictions for crimes not subject to limitation , to entries concerning convictions dating back DATE which have not been followed by a further conviction for a serious crime or other major offence .","Entries concerning the following shall also be removed from the criminal record :","( CARDINAL ) NORP personal bankruptcy orders or disqualifications provided for in CARDINAL of the aforementioned LAW no . CARDINAL of DATE where such measures are expunged by means of a judgment terminating the proceedings on account of the payment of outstanding debts , by means of rehabilitation , or upon the expiry of DATE from the date on which the orders in question became final ; and also orders for the liquidation of a natural person 's assets , upon the expiry of DATE from the date on which the orders in question became final , or after the delivery of a judgment rehabilitating the person concerned .","However , if the personal bankruptcy order or disqualification is valid for DATE , an entry concerning these measures shall remain in the criminal record for the same period ;","( CARDINAL ) disciplinary decisions expunged as a result of rehabilitation ;","( CARDINAL ) sentences which are wholly or partly suspended , with or without probation , upon the expiry of the periods laid down in ORG CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW , calculated from the date on which the sentences are to be deemed void ;","( CARDINAL ) NORP discharges , upon the expiry of a DATE period starting on the date on which the conviction became final ;","( CARDINAL ) convictions for petty offences [ contraventions ] , upon the expiry of a DATE period starting on the date on which the convictions became final ; this period shall be increased to DATE where repetition of the offence in question constitutes a more serious offence [ d\u00e9lit ] ;","( CARDINAL ) measures carried out under the agreed penalty scheme , upon the expiry of DATE from the date on which it is certified that the measure has been carried out , if during that period the person has not been convicted of a serious crime or other major offence or carried out a further measure under the agreed penalty scheme ; and","( CARDINAL ) measures ordered in accordance with Articles CARDINAL , DATE , CARDINAL , DATE , QUANTITY of the aforementioned Ordinance no . CARDINAL of DATE , upon the expiry of DATE from the date on which the measure was ordered , if during that period the person has not received a sentence for a serious crime or other major offence , or carried out a measure under the agreed penalty scheme , or been the subject of a further measure ordered in accordance with the aforementioned provisions of the GPE . \u201d"],"violated_articles":["7"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60931","languageisocode":"ENG","respondent":"NOR","branch":"CHAMBER","date":2003,"docname":"CASE OF HAMMERN v. NORWAY","importance":2,"conclusion":"Violation of Art. 6-2","judges":"","text":["The applicant was born in DATE and lives in Bjugn .","On DATE the head of the social services in the municipality of Bjugn contacted the local police after having received reports from PERSON kindergarten indicating that the applicant , who was an assistant at the kindergarten at the time , had sexually abused CARDINAL or more of the children there . Subsequently , a criminal investigation was carried out . On DATE the applicant was interrogated . He denied the accusations . On the same date he was suspended from his post .","On DATE the applicant was formally indicted with respect to various offences under LAW , CARDINAL and CARDINAL of LAW ( straffeloven ) concerning the sexual abuse of minors , allegedly committed against CARDINAL children at the kindergarten , and under LAW with respect to one of them . On DATE the indictment was extended to CARDINAL children at the kindergarten and , on DATE , a new indictment was issued involving CARDINAL children . On DATE the indictment was again extended to offences of sexual abuse of CARDINAL named children and an unknown number of children at the kindergarten .","On DATE , CARDINAL further persons were indicted for sexual offences in relation to the same matter : the applicant 's wife , CARDINAL employees at the kindergarten and the local sheriff .","As a result of the above , the applicant spent CARDINAL periods in pre - trial detention \u2013 respectively CARDINAL , DATE and DATE \u2013 a total of DATE . In the course of the investigations , CARDINAL searches were carried out at the applicant 's home .","On DATE the applicant was formally indicted under Articles CARDINAL , CARDINAL and CARDINAL of the Penal Code for having allegedly committed various offences of sexual abuse against CARDINAL kindergarten children .","On DATE the charges against the CARDINAL other accused persons were dropped . They later claimed compensation under ORG CARDINAL to CARDINAL of LAW ( straffeprosessloven ) . The local sheriff obtained a settlement of ORG CARDINAL in compensation for non - pecuniary damage ; the CARDINAL others obtained a court order requiring the ORG to pay ORG CARDINAL to each of them . The applicant 's wife obtained , in addition , ORG CARDINAL in compensation for pecuniary damage .","The applicant 's trial took place before FAC ( lagmannsrett ) , sitting with CARDINAL judges and a jury , over a period of DATE , DATE and DATE . After the jury had answered all of the CARDINAL questions relating to the indictment in the negative , the applicant was acquitted by a judgment of DATE .","The applicant subsequently filed a petition with ORG , claiming compensation under ORG CARDINAL to CARDINAL of LAW .","ORG , sitting with CARDINAL of the judges who had taken part in the trial and a new judge ( replacing the judge who had presided at the trial , disqualified from sitting in the compensation case ) , held an oral hearing CARDINAL DATE .","In its decision of CARDINAL DATE , ORG ordered the ORG to award him the entirety of his claim of ORG CARDINAL in compensation for pecuniary damage under Article CARDINAL , according to which provision such \u201c compensation for special or disproportionate damage as a consequence of the criminal prosecution \u201d could be awarded as was \u201c reasonable in the circumstances \u201d . Moreover , under Article CARDINAL , cf . CARDINAL , ORG awarded him ORG CARDINAL in compensation for non - pecuniary damage suffered as a result of the prosecution . However , on the basis of an assessment , the relevant parts of which are quoted in ORG ( PERSON ) decision cited below ( paragraph CARDINAL ) , ORG rejected his claim for supplementary compensation under LAW , it not having been shown probable that he did not commit the act which was the basis of the charge . ORG referred to the evidence presented during the trial hearing DATE and DATE and during the oral hearing in the compensation case in DATE .","The applicant appealed against ORG decision of CARDINAL DATE to ORG of ORG ( H\u00f8yesteretts kj\u00e6rem\u00e5lsutvalg ) . He complained that ORG decision contained assumptions of criminal liability and that , consequently , it violated LAW . He requested ORG to quash ORG decision .","By a decision of CARDINAL DATE , notified to the applicant by mail on DATE , ORG , considering that the applicant 's appeal concerned ORG application of LAW , rejected the appeal .","In its reasoning , ORG first recalled that in its decision reported in GPE DATE , p. CARDINAL , ORG had stated ( at p. CARDINAL ) :","\u201c It is the accused who carries the burden of proof that he did not carry out the act . It is sufficient that it is more probable than not . I do not agree with counsel for the defence that the accused has discharged the burden of proof where both alternatives , on the basis of the available evidence , appear to be equally likely . In this assessment the ordinary standards of evidence shall apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the possibilities for the accused to show that he did not carry out the act . Given the manner in which the provision has been formulated the situation may easily arise that an acquittal is not sufficient to justify a compensation claim when the accused is unable to discharge this burden of proof . I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt . The compensation case must be determined on an independent basis and the rules on evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims . The legislator has as a starting point opted for a solution whereby the financial burden caused by the institution of criminal proceedings , which are discontinued or which end with an acquittal , must be borne by the accused unless he is able to show that it is probable that he did not commit the act . \u201d","The Appeals Selection Committee further recalled that in the above case ORG considered the relationship between the conditions for compensation under LAW and the case - law of ORG , in particular the GPE v. GPE judgment of CARDINAL DATE ( Series A no . CARDINAL-A ) . ORG concluded that the rules in LAW were not , as such , contrary to LAW . ORG affirmed that it would base itself on this view in its assessment of the present case . It further recalled that , in the DATE decision , ORG had expressed the following view on the PERSON judgment :","\u201c [ In this case ] decisive importance was attached to the reasoning in the particular case for rejecting the compensation claim . If in the reasoning for refusing compensation doubt is voiced as to whether the acquittal was correct or if the reasoning contains assumptions about criminal liability , then the relationship to LAW would be problematic . \u201d","Then ORG went on to state :","\u201c As pointed out by the prosecution in its reply to the appeal , ORG had to justify why it considered that the conditions for making an award for compensation under LAW had not been fulfilled . ORG must determine whether the reasoning of ORG conflicted with the requirements of LAW .","The ORG refers to the fact that the reasoning must be formulated in the light of the conditions for compensation as mentioned above . It is further clear that ORG ... was aware of the rules in LAW , ORG PERSON judgment and the DATE decision of ORG . In its decision concerning compensation under LAW , ORG , after having quoted the provision , specifies the subject - matter of the case as follows .","' Following the High Court 's acquittal , Mr PERSON is not guilty under the criminal law . This question has not been submitted to ORG which will not deal with it . The present case is a compensation claim brought by PERSON . The question is whether he , in view of the rules of evidence under the law of compensation , is able to show that he did not carry out the acts which were referred to in the indictment . '","The ORG points to the fact that here the High Court clearly specifies that Mr ORG is not liable under the criminal law . Furthermore it is specified that the compensation claim must be determined on the basis of the rules of evidence applying under the law on compensation . ORG then concludes , against the background of the evidence adduced , that considering the case as a whole , PERSON PERSON ' has not shown it to be probable that he did not carry out the acts which grounded the charge . '","Moreover , in the concluding remarks , it is stated :","' When ORG , considering the case as a whole , reached the conclusion that Mr PERSON had not discharged his burden of proof , account was also taken of the fact that the requirements as to the strength of the evidence must to a certain extent be adapted to the possibility which he has for showing that he [ Mr NORP ] did not commit the acts .... Nevertheless , in the assessment , it is the usual rules on evidence which should apply .... '","In support of his submission that ORG reasoning contains assumptions about criminal liability , he points to certain intermediate passages in which the ORG states :","' Medical experts have in the light of their investigations reached conclusions which in practice imply a very high degree of probability that the CARDINAL children referred to in the indictment have been exposed to sexual abuse . The medical experts have discounted the possibility of self - inflicted injuries , that the injuries are caused by pathological conditions or conditions at variance from the norm . As pointed out by the prosecution , the children themselves gave statements to their parents , during the judicial examinations and to a psychologist , about abuse by PERSON . Through the video recording of the judicial examinations of the children , the ORG has been able to see how the children expressed themselves .","The ORG has been able to apprise itself of how the children during the examinations changed their behaviour when presented with questions of sexual abuse .","Nor does the following fact make it less likely that he carried out the acts for which he was charged : the children markedly changed their behaviour , inter alia , in the form of bedwetting , refusing or expressing fear about going to the kindergarten , several children had a sore crotch , sore abdomen and , on CARDINAL or several occasions , blood on their underwear , circumstances which essentially occurred after PERSON NORP started to work at the kindergarten and which diminished after his departure .","The High Court further finds it established that at the kindergarten it was possible to perpetrate such abuse without it being revealed either from a technical or practical point of view .","In the aftermath , several of the employees at the kindergarten have pointed to a few surprising situations : for instance the governor 's eyewitness evidence , her perception of the situation , when she came over to Mr NORP while he was washing a child in the crotch under peculiar circumstances .","ORG does not find any reason to go further into the discussion about the possibility of paedophilia . It is not only the so - called real paedophiles who commit abuse against children . Nor can a diagnosis which excludes paedophilia be deemed accurate , or notional paedophilia be defined precisely . '","Having regard to the fact that the High Court clearly specified that its assessment was confined to the compensation case which was to be determined on the basis of the rules of evidence applying in such cases , ORG finds that ORG s reasoning does not go further than is necessary to carry out a careful examination of the compensation claim and that it does not entail any infringement of the presumption of innocence laid down in the Convention . The ORG once more emphasises that a refusal to award compensation under LAW does not imply that the previous acquittal is being undermined .","In the light of the foregoing , the appeal must be rejected . \u201d","NORP Under the NORP jury system , when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion , and no records are kept which could disclose that a negative answer as to the applicant 's guilt was not unanimous . The criminal system knows CARDINAL conclusions in a criminal case \u2013 guilt or acquittal ( see Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW ) . There is no third alternative , which was known in some other NORP countries , where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt .","Articles CARDINAL to CARDINAL of LAW provide for compensation where a person has been acquitted , or the prosecution discontinued . The provisions read as follows :","\u201c Article CARDINAL : If a person charged is acquitted or the prosecution against him is discontinued , he may claim compensation from the ORG for any damage that he has suffered through the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge . If a sentence of imprisonment or other custodial sanction has already been served , any damage resulting from this shall be compensated without regard to what has been shown to be probable .","Compensation shall not be awarded when the person charged , by making a confession or otherwise , has wilfully instigated the prosecution or the conviction .","If he has otherwise contributed to the damage by negligence , the compensation may be reduced or dispensed with entirely .","Article CARDINAL : Even if the conditions prescribed in Article CARDINAL are not fulfilled , the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal prosecution whenever this appears to be reasonable in the circumstances .","Article CARDINAL : If the conditions relating to compensation prescribed in ORG CARDINAL or CARDINAL are fulfilled , the court may , when special reasons so indicate , award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution . \u201d","In addition , there are certain formal conditions set out in Article CARDINAL for the submission and examination of a compensation claim made under ORG CARDINAL to CARDINAL :","\u201c Any claim for compensation or redress must be submitted not DATE after the person charged has been informed of the decision that finally concludes the case . The provisions of LAW , first paragraph , shall apply correspondingly .","If the case has been concluded without any judicial trial of the evidence relating to the issue of guilt , the claim shall be submitted to a court of summary jurisdiction .","Otherwise the claim shall be submitted to the court that shall conduct or has last conducted any such trial . If the claim is submitted to ORG or ORG , but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing , ORG shall also decide the question of compensation . On the hearing of the claim the court shall as far as possible sit with the same judges who decided the criminal case . In ORG lay judges or the selected jurors who join the court pursuant to LAW shall not take part unless the decision is made at the same court sitting as that at which judgement is pronounced in the case . \u201d","Compensation after acquittal or a discontinued prosecution is not automatic and is not granted unless the conditions in the above - cited ORG are met .","When compensation is granted to persons considered innocent as they have been acquitted or the prosecution against them has been discontinued , Articles CARDINAL and CARDINAL are the general provisions and , de facto , the main provisions providing for compensation . In the present case the applicant was awarded compensation both under ORG CARDINAL and CARDINAL .","In addition the applicant requested compensation under the special provisions of LAW , under which the ORG may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities . The liability of the ORG to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act of which he or she was charged . In the assessment of the latter , none of the other constitutive elements of a criminal offence , such as criminal intent , is in issue .","According to the case - law of ORG , the evidentiary standard applying with respect to liability to pay compensation under LAW differs from that applying to criminal liability . Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the incriminated act , in compensation proceedings it is for the claimant to show that , on the balance of probabilities , it was PERCENT probable that he or she did not carry out the act grounding the charge . The requirement of proof in compensation cases may nevertheless be adjusted ( i.e. to PERCENT ) in the light of the claimant 's ability to adduce evidence , especially where a long time has elapsed since the alleged criminal act . The competent court has to make a new assessment , independently of the acquittal , of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge .","It is not a requirement for obtaining compensation that the acquitted claimant adduce new evidence . The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion .","In DATE ORG ) made a recommendation to ORG that ORG CARDINAL to CARDINAL of LAW be amended in a number of respects , including the abolition of the condition whereby the claimant must prove that on the balance of probabilities he or she did not carry out the act giving rise to the charge . Nevertheless , the ORG was of the view that the provisions in force are not inconsistent with GPE 's obligations under LAW , as interpreted by ORG in its case - law ( see PERSON GPE ORG ) , PERSON i anledning straffeforf\u00f8lgning ( Compensation in connection with ORG ) , DATE : CARDINAL , pp . CARDINAL , DATE , CARDINAL ) . On DATE a Government PERSON was presented to ORG ( Ot.prp.nr.CARDINAL , DATE ) , proposing inter alia the repeal of this condition ."],"violated_articles":["6"],"violated_paragraphs":["6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81222","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF PRIDATCHENKO AND OTHERS v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov);Non-pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov, Mr Sychev)","judges":"Christos Rozakis","text":["At the time of the described events Mr PERSON ( born in DATE ) , PERSON ( born in DATE ) , and Mr PERSON ( born in DATE ) were active military officers . Mr PERSON ( born in DATE ) was a retired military officer . On different dates they sued their actual or former employers , respective military units , in courts . The applicants claimed payment of their salaries , various service - related benefits due to them , provision of free housing , compensation of travel expenses , compensation of damages , etc . In all cases the courts ruled in their favour ( at least in part of their claims ) making monetary awards . However , for some time the judgments in their favour remained unenforced .","On DATE the ORG granted in part the applicant 's claims concerning free housing due to him under the military service contract . The court also awarded the applicant MONEY ( RUR ) for legal costs . That judgment was not appealed against and became final on DATE .","On DATE the ORG granted the applicant 's claims concerning the amount of compensation of his travel expenses awarding him arrears in the amount of ORG , plus RUR CARDINAL for legal costs . That judgment was not appealed against and became final on DATE .","On DATE the ORG at the applicant 's request held unlawful the refusal to dismiss the applicant from military service and awarded him RUR CARDINAL for legal costs . That judgment was not appealed against and became final on DATE .","On DATE the court issued a writ of execution on the basis of the judgment of DATE . The applicant forwarded it with accompanying documents to the ORG treasury office of LOC . On DATE the writ was returned to the applicant unexecuted . The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt . The applicant was advised to address the writ of execution to the head office of ORG in GPE , which he did on DATE . However , the judgment remained unexecuted .","On DATE the court issued CARDINAL writs of execution on the basis of the judgments of DATE and DATE ( concerning the legal costs awarded to the applicant ) . The applicant forwarded them with accompanying documents to the ORG treasury office of LOC . On DATE the treasury office returned the unexecuted writs to the applicant referring to the lack of funds on the debtor 's account . The applicant was advised to address the writs to the head office of ORG , which he did on DATE . However , the writs remained unexecuted .","On DATE ORG allocated from the ORG budget to ORG in the applicant 's name with reference to the writ of execution issued on DATE on the basis of the judgment of CARDINAL DATE .","On DATE ORG allocated from the ORG budget to ORG CARDINAL,CARDINAL in the applicant 's name with reference to the writ of execution issued on DATE on the basis of the judgment of DATE .","On DATE ORG allocated from the ORG budget to ORG CARDINAL,CARDINAL in the applicant 's name with reference to the writ of execution issued on DATE on the basis of the judgment of DATE .","According to the applicant , the aforementioned amounts were transferred to his account on DATE . He submitted copies of banking receipts as evidence in that respect .","On DATE ORG of LOC granted the claims awarding him RUR CARDINAL,CARDINAL of salary arrears . The judgment was not appealed against and became final on DATE .","On DATE the court issued a writ of execution . The applicant sent it to the bailiff 's office . On DATE the bailiff 's office returned the unexecuted writ to the applicant and advised him to forward it to ORG of the ORG treasury .","On DATE the forenamed branch of the ORG treasury returned the unexecuted writ to the applicant and explained that it was not responsible for financial obligations of the debtor military unit , apparently in accordance with a territorial jurisdiction principle .","It appears that the judgment of ORG of LOC of DATE has not yet been executed .","On DATE ORG by the final decision awarded the applicant LAW for non - pecuniary damages caused by the refusal to grant the applicant annual leave .","On DATE the court issued a writ of execution on the basis of the judgment of DATE . The applicant forwarded it with accompanying documents to the treasury office of GPE . On DATE the writ was returned to the applicant unexecuted . The Belogorsk town treasury office advised the applicant that it was not competent to deal with such requests .","On an unspecified date in DATE the applicant sued his military unit for the refusal to send him for a medical examination , whereas his state of health was deteriorating . He claimed non - pecuniary damages in that respect . On DATE FAC granted the applicant 's claims awarding him RUR CARDINAL,CARDINAL for non - pecuniary damages , plus ORG for legal costs . The judgment was not appealed against and became final on DATE . On DATE the court issued a writ of execution on the basis of the judgment of DATE .","On an unspecified date in DATE the applicant sent both the writs of CARDINAL DATE and DATE to the local bailiff 's office and to the town treasury office . On DATE the Belogorsk town treasury office paid the applicant RUR CARDINAL,CARDINAL on account of the judgment of DATE . On the same date they informed the applicant that the debtor had no money for paying off the rest of the judgment debt ; the applicant was advised to address himself to the head office of ORG . On DATE the bailiff 's office returned both writs unexecuted and advised the applicant to forward them to the treasury office .","On an unspecified date in DATE the judgments of DATE and DATE were enforced in full .","On DATE the ORG granted the applicant 's claims concerning compensation of his travel expenses , and awarded him arrears in the amount of ORG . It appears that the judgment was not appealed against and became final .","NORP However , for some time the judgment of DATE remained unexecuted . Referring to that fact the applicant brought proceedings requesting indexation of the judicial award due to him .","On DATE the ORG granted the applicant 's claims and awarded him damages caused by non - enforcement of the judgment of CARDINAL DATE in the amount of ORG and RUR CARDINAL for legal costs . That judgment was not appealed against and became final on DATE .","On DATE a writ of execution was issued . The applicant forwarded it with accompanying documents to the ORG treasury office of GPE . On DATE the writ was returned to the applicant unexecuted . The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt . The applicant was advised to send the writ of execution to the head office of ORG , which he did on DATE . However , the judgment of CARDINAL DATE remained unexecuted .","On DATE the judgment of CARDINAL DATE was enforced in full . The applicant informed the ORG about this fact ; however , he maintained his complaints about the non - enforcement of the judgment of DATE .","On DATE ORG allocated from the ORG budget to ORG CARDINAL,CARDINAL.CARDINAL in the applicant 's name with reference to the writ of execution of DATE relating to the judgment of CARDINAL DATE .","According to the applicant , the aforementioned amount was transferred to his bank account on DATE . He submitted a copy of a banking receipt as evidence in that respect .","The Russian Law on Enforcement Proceedings ( no . CARDINAL-\u0424\u0417 of DATE ) designates the court bailiffs ' service as the authority charged with enforcement of court decisions ( LAW ) . Court judgments can also be executed by tax authorities , banks , financial institutions , other organisations , ORG officials and individuals \u2013 all of them are not considered to be the enforcement authorities ( LAW ) .","Section CARDINAL of the Law on Federal Budget for DATE ( no . CARDINAL of DATE ) provided that writs of execution issued against the treasury of GPE were to be sent for execution to ORG of GPE and were to be executed in accordance with the procedure established by ORG . A similar provision was included in LAW of ORG DATE . However , LAW of ORG DATE ( no . CARDINAL of DATE ) established , in addition to the similar requirement that writs of execution were to be submitted to ORG , that the court bailiffs could not enforce judgments against GPE .","On DATE ORG approved \u201c Rules on recovery of funds due on the basis of the writs of execution issued by the courts on account of monetary obligations of the recipients of federal budget funds \u201d ( \u201c the Rules \u201d ) . Sections CARDINAL and CARDINAL of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account . The federal treasury office must grant the recovery within DATE in the part not exceeding the balance of the account ( Section CARDINAL ) . Should the balance of the account be insufficient for a full recovery , the writ of execution must be returned to the creditor who can then apply to ORG to recover the outstanding amount from the debtor 's funding entity ( Section CARDINAL ) .","On DATE ORG adopted Decree no . CARDINAL which enacted the \u201c Rules of Execution by ORG of court judgments against the ORG of GPE arising from the claims for damages caused by unlawful acts or omissions of the ORG authorities or ORG officials \u201d . The procedure of execution of such judgments provided by DATE was essentially the same as provided by the Rules of DATE cited above .","On DATE ORG of the Russian Federation delivered judgment no . \u0413\u041a\u041f\u0418 CARDINAL - CARDINAL concerning the lawfulness of certain provisions of the Rules . In particular , the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body , pursuant to LAW . In subsequent judgment no . \u0413\u041a\u041f\u0418 DATE of DATE the court clarified its position as follows :","\u201c The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions , rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds ...","The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision ... \u201d","In judgments ORG . TIME DATE and DATE of DATE ORG of GPE confirmed that neither the LAW , nor ORG prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in GPE , ORG and LAW . Finally , ORG again upheld this position in judgment no . \u0413\u041a\u041f\u0418 CARDINAL - CARDINAL of DATE .","On DATE ORG of GPE in its decision no . KAC CARDINAL ruled that the Rules , adopted by Decree no . CARDINAL of DATE , concerned the voluntary execution of court decisions against the ORG treasury and did not prevent the creditor from seeking enforcement through the court bailiffs .","NORP The functioning of military courts is regulated by LAW , the Law on Judicial System of DATE , the Law on Military Courts of DATE . Military courts belong to the judicial system of GPE , they are courts of general jurisdiction exercising judicial power in the armed forces . military courts are established or dissolved by a federal law . Military courts are organised in the places of stationing of military units . Military courts administer justice on behalf of GPE examining cases in their jurisdiction by way of civil , administrative and criminal proceedings . In particular , military courts examine complaints of military personnel against acts or omissions of military officials or military command . Such cases are examined pursuant to the provisions of LAW . Military courts administer justice independently subject only to LAW , federal constitutional laws and federal laws . The judges of the military courts are appointed by the President and should have a military rank , in addition to a law degree and necessary qualifications ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104905","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2011,"docname":"CASE OF SCHMITZ v. GERMANY","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 5-1","judges":"Angelika Nu\u00dfberger;Dean Spielmann;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and is currently detained in FAC .","DATE the applicant was convicted of sexual offences including attempted rape , sexual abuse of children , sexual assault , attempted sexual assault and dangerous assault in CARDINAL judgments and spent DATE in prison .","On DATE the ORG convicted the applicant of CARDINAL counts of sexual assault . It sentenced him to DATE and CARDINAL months\u2019 imprisonment and ordered his ( first ) preventive detention under LAW ( see paragraphs CARDINAL below ) . It found that in DATE and DATE the applicant , acting with full criminal responsibility , had sexually assaulted CARDINAL hitchhikers whom he had taken with him in his car . Having consulted a neurological expert , it further found that owing to his criminal tendencies , it was very likely that the applicant would commit further serious sexual offences comparable to those he was found guilty of on release and was dangerous to the public . Therefore , his preventive detention was necessary .","The applicant served his prison sentence until DATE and was then held in preventive detention until DATE , when the preventive detention order was suspended on probation and the applicant released .","On DATE the ORG convicted the applicant of attempted sexual assault and falsification of a driving licence . It sentenced him to DATE and CARDINAL months\u2019 imprisonment and ordered his ( second ) preventive detention under LAW . ORG found that in DATE the applicant , acting with full criminal responsibility , had again attempted to sexually assault a hitchhiker . He had threatened her with a gas pistol , but she had succeeded in wresting the pistol from him and making good her escape . Having regard to the facts that the applicant had begun to reoffend almost immediately after spending DATE in detention and that , according to the convincing view expressed by an expert , it would take DATE to rehabilitate the applicant , if ever , the court further considered its second order of preventive detention to be proportionate .","On DATE ORG revoked the suspension on probation of the applicant \u2019s first preventive detention , ordered in ORG judgment of DATE , as the applicant had reoffended and had not diligently continued his therapy .","The applicant served his full prison sentence imposed in the judgment of DATE until DATE . Since CARDINAL DATE the applicant has been in preventive detention in FAC as ordered both in the judgment of ORG of DATE and in the judgment of that same court of DATE .","On DATE the ORG , reviewing the applicant \u2019s preventive detention , refused to suspend his preventive detention on probation .","On DATE the applicant requested ORG to order his release from preventive detention , arguing that preventive detention violated LAW .","On DATE the ORG , examining the applicant \u2019s request under LAW ( see paragraph CARDINAL below ) , decided that his objections against the admissibility of the execution of his preventive detention were ill - founded . The applicant \u2019s preventive detention , ordered by ORG in DATE under LAW , constituted lawful detention after conviction by a competent court within the meaning of LAW ( a ) of the LAW .","On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant \u2019s appeal . It added that preventive detention under LAW , which was to be qualified as a measure of correction and prevention and not as a penalty , neither violated the LAW nor LAW . Moreover , Article CARDINAL \u00a7 CARDINAL of LAW , in its version in force since DATE ( see paragraph CARDINAL below ) , was constitutional .","On DATE ORG , referring to its leading judgment of DATE in the case of PERSON ( file no . CARDINAL BvR CARDINAL\/CARDINAL ; application no . CARDINAL to ORG ) , declined to consider the applicant \u2019s constitutional complaint ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) , in which he had complained that his preventive detention of an indefinite duration had violated LAW .","On DATE , DATE and DATE the Aachen ORG , reviewing the applicant \u2019s detention , refused to suspend the applicant \u2019s preventive detention on probation . It considered that it could not be expected that the applicant , who refused to make a therapy with an external psychologist offered to him , would not reoffend on release .","The applicant was in his first preventive detention as ordered in the judgment of ORG of DATE until DATE . From DATE , the applicant \u2019s preventive detention as ordered for the second time in the judgment of ORG of DATE is executed .","A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG \u2019s judgment in the case of PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) . The provisions referred to in the present case provide as follows :","The sentencing court may , at the time of the offender \u2019s conviction , order his preventive detention , a socalled measure of correction and prevention , under certain circumstances in addition to his prison sentence , a penalty , if the offender has been shown to be dangerous to the public ( LAW ) .","NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years\u2019 imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .","Under Article CARDINAL \u00a7 CARDINAL of LAW , in its version in force prior to DATE , the first placement in preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY \u00a7 CARDINAL ) .","Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL \u00a7 CARDINAL , in its amended version , provided that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL \u00a7 CARDINAL of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .","Article CARDINAL \u00a7 CARDINAL of the Code of Criminal Procedure provides that a court decision must be obtained if objections are raised to the execution of a sentence .","On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period ( compare the provisions in paragraphs CARDINAL above ) and about the retrospective order of the ORG preventive detention respectively ( file nos . CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL , CARDINAL BvR CARDINAL\/CARDINAL and CARDINAL BvR CARDINAL\/CARDINAL ) . ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .","The Federal Constitutional Court further held that all provisions of LAW on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .","ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the most . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of \u201c persons of unsound mind \u201d in LAW sub - paragraph ( e ) of the LAW made in this ORG \u2019s case - law . If the above pre - conditions were not met , those detainees had to be released no later than DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .","In its judgment , ORG stressed that the fact that the LAW stood above the LAW in the domestic hierarchy of norms was not an obstacle to an international and NORP dialogue between the courts , but was , on the contrary , its normative basis in view of the fact that the LAW was to be interpreted in a manner that was open to public international law ( v\u00f6lkerrechtsfreundliche GPE ) . In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80903","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2007,"docname":"CASE OF DUPUIS AND OTHERS v. FRANCE","importance":3,"conclusion":"Violation of Art. 10;No separate issue under Art. 6-2","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["By a decree of CARDINAL DATE , a \u201c Mission for coordination , information and action against terrorism \u201d was set up . This \u201c anti - terrorist unit \u201d at ORG operated from DATE to DATE within the office of the NORP President , engaging in telephone tapping and recording .","NORP In DATE a DATE magazine published a handwritten note dated DATE , under the letterhead of ORG , containing indications that telephone lines , in particular those of certain journalists and lawyers , had been tapped .","In DATE a list of the people who had been placed under surveillance was published in the press .","The case aroused considerable media interest and a judicial investigation was opened in DATE .","In the course of the proceedings ORG , deputy director of the NORP President 's private office at the time of the surveillance , was placed under formal investigation on a charge of invading the privacy of others .","On DATE , DATE after President PERSON 's death , the publishers PERSON published a book entitled FAC du Pr\u00e9sident ( \u201c The President 's Ears \u201d ) , which had been written by the first CARDINAL applicants , both journalists , on the subject of the monitoring operations at FAC .","On DATE ORG lodged a criminal complaint , with an application to join the proceedings as a civil party , against Mr PERSON and PERSON , accusing them of handling documents obtained through a breach of professional confidence , of knowingly deriving an advantage from such a breach and of handling stolen property . In his complaint PERSON noted that appendix CARDINAL of the book consisted of CARDINAL \u201c facsimile telephone - tap transcripts \u201d which were identical to documents in the case file and that the other CARDINAL appendices ( list of individuals under surveillance ) were also based on information from the file . He further cited CARDINAL passages from the work which reproduced officially - recorded statements made to the investigating judge by the individuals under investigation or witnesses .","In the ensuing judicial investigation the applicants denied having obtained their information illegally . They refused to reveal their sources and claimed that many of the people examined by the judge had since publicly disclosed the content of their statements . As regards the facsimile telephone - tap transcripts and the content of the official records , the applicants argued that they had been circulating among journalists well before the opening of the judicial investigation .","In a judgment of DATE the GPE tribunal de grande instance found that both the facsimiles and the record extracts came from the judicial investigation file , which was only accessible to persons bound by the secrecy of the judicial investigation or by a duty of professional confidence . The court considered that , regardless of how the documents in question had been transmitted , they could not have fallen into the applicants ' hands without an offence being committed . In the court 's opinion , experienced journalists could not have been unaware of that fact . Observing that all the elements of the offence of handling illegally - obtained items ( recel ) were sufficiently established , the court found Mr PERSON and Mr PERSON guilty of the offence of handling information obtained through a breach of the secrecy of the investigation or through a breach of professional confidence , under Articles CARDINAL - CARDINAL , CARDINAL - CARDINAL , CARDINAL - CARDINAL and CARDINAL - CARDINAL to CARDINAL of LAW , and ordered each of them to pay a fine of MONEY ( equivalent to MONEY ( ORG ) ) . The court further ordered them , jointly and severally , to pay MONEY ( ORG CARDINAL,CARDINAL.CARDINAL ) in damages and found the company GPE PERSON civilly liable . The applicants ' book continued to be published and no copies were seized .","The applicants appealed . They claimed , among other things , that LAW had been breached and argued that the judgment against them could not be regarded as necessary in the light of the LAW .","On DATE ORG upheld the judgment , for the following reasons in particular :","\u201c ... The quantity , diversity and accuracy of the sources used by the defendants show that they were actually in possession of reproductions of documents from the judicial investigation file , as mere transcriptions or oral accounts would not have enabled them to make such systematic use of the material in that file ... The defendants could only therefore have obtained the documents through the intermediary of persons involved in the proceedings , who can be divided into CARDINAL groups . The first group is bound by the secrecy of the investigation ( judges and prosecutors , clerks , police officers , etc . ) , any breach of which will constitute a criminal offence . The second group consists of persons who are entitled to obtain copies of documents but who are not bound by the secrecy of the investigation , namely lawyers and the parties themselves ... These clear and coherent provisions show that compliance with certain conditions ensuring the secrecy of the investigation forms an integral part of the duty of professional confidence . To be sure , the rights of the defence must not be impaired by that duty . ... Thus the documents used by the defendants were necessarily obtained illegally and the precise classification of the offence has no bearing on the unlawfulness of their origin , which is the necessary and sufficient basis of the statutory characterisation of the offence of handling ( recel ) , as is confirmed by the case - law of ORG . ... \u201d","As regards LAW , ORG held as follows :","\u201c Even though the actual object of the handling specifically consists of elements of the judicial investigation , it should first be observed that the offence of handling provided for under LAW corresponds to a commonly used characterisation . ... Accordingly , whilst proceedings in their current form may not be very numerous , they are based on clear and established provisions , which have been implemented in foreseeable conditions .","Under paragraph CARDINAL of the above - mentioned LAW , the exercise of freedom of expression may be subject to restrictions , in particular for the protection of the reputation or rights of others or for maintaining ' the authority and impartiality of the judiciary ' .","It has been established that , by obtaining a number of the confidential documents from proceedings in which [ ORG ] had been placed under judicial investigation , the defendants interfered with his private life and with his defence rights as an individual under judicial investigation . That action further demonstrated a wilful disregard for the rules governing the functioning of the judicial authority . In addition , the act of publication , which was the avowed objective of Mr PERSON and PERSON , was bound to prejudice the presumption of innocence , a right which must be guaranteed for every person against whom criminal proceedings are brought .","... An obligation to comply with the basic rules governing the functioning of courts and the practices of persons involved in the administration of justice contributes to maintaining the democratic features of society . Accordingly , the rules concerning respect for the secrecy of the judicial investigation , like those concerning the duty of professional confidence , have the effect of protecting the judicial authority from excessive pressure , as well as protecting essential interests of those involved in the proceedings .","The restrictions to which freedom of expression is subject are therefore necessary , particularly because it has not been established that the constraints imposed in the present case really had an adverse effect on the informing of public opinion , having regard to the articles published on the subject , any more than it has been established that there was a breakdown in the administration of justice of which public opinion had to be informed . \u201d","The applicants appealed on points of law .","In a judgment of DATE ORG dismissed their appeal .","ORG rejected the ground of appeal in which the applicants alleged , among other things , that there had been a violation of LAW , finding as follows :","\u201c In finding guilty the defendants , who had denied having obtained the information unlawfully , but had refused to reveal their sources , ORG notes that the book contained facsimile telephone - tap transcripts which are exact copies of pages from the investigating judge 's case file , and of official records of statements drawn up by the judge . The court adds that , absent any evidence to support the hypothesis of accidental disclosure , the source could only have been a professional bound by a duty of confidence , whether CARDINAL of the persons required to respect the secrecy of the judicial investigation or a lawyer bound by a duty of professional confidence under LAW of the decree of CARDINAL DATE on the organisation of the legal profession . The court infers from the foregoing that , regardless of how the documents in question were transmitted , they could not have fallen into the hands of the defendants without an offence being committed . It adds that experienced journalists could not have been unaware of this fact .","ORG , reasoning as follows , also dismissed the applicants ' ground of appeal , based on a violation of LAW , in which they submitted that the simple fact that the telephone tapping described in the book was the subject of a judicial investigation was not sufficient to justify the interference with their freedom of expression and that the judgment against them did not fulfil any necessity :","\u201c In dismissing the complaint that there had been a violation of LAW , ORG , by reasoning of its own and espousing that of the court below , notes that the essential subject matter of the offending work consists of the actual case file from the judicial investigation in progress ; that the book reproduces , among other things , numerous passages from interviews with individuals examined by the investigating judge ; and that this information was used in some detail in the authors ' observations on the functioning of the monitoring system set up within the NORP ORG . The court explains that the defendants found themselves in possession of confidential information on [ ORG ] to which they had no right of access , thus interfering with a legitimate interest of the latter . The court adds that the limits to which freedom of expression is subject are necessary , particularly because it has not been established that the constraints applied in the present case caused any real prejudice to the informing of public opinion or that there was any breakdown in the administration of justice of which public opinion had to be informed .","Having regard to the foregoing findings , from which it transpires that the defendants were prosecuted for disclosing the content , that remained confidential , of material from a judicial investigation in progress , and that such a measure was justified by the necessity of protecting the rights of others , CARDINAL such right being the presumption of innocence , and by the need to prevent disclosure of confidential information and to maintain the authority and impartiality of the judiciary , ORG duly substantiated its decision for the purposes of LAW of ORG .","...","In awarding damages to the civil party , on the ground that the publication by the defendants of confidential information concerning that party had directly contributed to the damage he had sustained , ORG substantiated its decision for the purposes of LAW . \u201d","In a judgment of ORG dated DATE , PERSON was given a suspended DATE prison sentence and fined ORG CARDINAL .","\u201c The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by DATE imprisonment and a fine of CARDINAL . \u201d","\u201c The offence of handling ( recel ) is constituted by the concealment , possession or transmission of a thing , or by the fact of acting as an intermediary with a view to its transmission , in the knowledge that the said object was obtained by means of a serious crime ( crime ) or other major offence ( d\u00e9lit ) .","The offence of handling is also constituted by the fact of knowingly deriving an advantage , by any means , from the product of a serious crime or other major offence . Handling shall be punished by DATE imprisonment and a fine of QUANTITY . \u201d","Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE , on the provision of information through the media in relation to criminal proceedings , reads as follows :","\u201c ...","Recalling that the media have the right to inform the public due to the right of the public to receive information , including information on matters of public concern , under LAW , and that they have a professional duty to do so ;","Recalling that the rights to presumption of innocence , to a fair trial and to respect for private and family life under Articles CARDINAL and CARDINAL of the Convention constitute fundamental requirements which must be respected in any NORP society ;","Stressing the importance of media reporting in informing the public on criminal proceedings , making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system ;","Considering the possibly conflicting interests protected by Articles CARDINAL , CARDINAL and DATE of the LAW and the necessity to balance these rights in view of the facts of every individual case , with due regard to the supervisory role of ORG in ensuring the observance of the commitments under the Convention ;","...","Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings , and to foster good practice throughout LOC while ensuring access of the media to criminal proceedings ;","...","Recommends , while acknowledging the diversity of national legal systems concerning criminal procedure , that the governments of member states :","take or reinforce , as the case may be , all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation , within the limits of their respective constitutional provisions ,","disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and","bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals .","Appendix to Recommendation Rec(CARDINAL)CARDINAL - Principles concerning the provision of information through the media in relation to criminal proceedings","ORG of the public via the media","The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .","Principle CARDINAL - Presumption of innocence","Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial . Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .","...","Principle CARDINAL - Regular information during criminal proceedings","In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public , judicial authorities and police services should inform the media about their essential acts , so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings . In cases of criminal proceedings which continue for DATE , this information should be provided regularly .","... \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76766","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2006,"docname":"CASE OF WALKER v. THE UNITED KINGDOM","importance":3,"conclusion":"No violation of Art. 14+P1-1","judges":"Josep Casadevall;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","NORP Under current GPE law , the state pension age is DATE for men and CARDINAL for women . Until these ages , men and women who work are required to pay national insurance contributions ( \u201c NICs \u201d ) if their earnings are above a threshold amount , currently QUANTITY ( GBP ) per month .","The applicant is over DATE and works as an administrator . Since he has not reached the state pension age for men of DATE , he is required to pay NICs on his earnings . At the time of introduction of the application , his DATE salary was GBP CARDINAL,CARDINAL and he paid PERCENT of his earnings ( between the primary threshold of GBP CARDINAL and the upper earnings limit of GBP CARDINAL ) in NICs ( Class CARDINAL ) , amounting to GBP CARDINAL per month and GBP CARDINAL per annum . From DATE , NICs increased to PERCENT of the amount up to the upper earnings limit , plus PERCENT on all earnings above the limit . The applicant \u2019s NICs increased to GBP CARDINAL per month .","The applicant will be required to pay national insurance contributions from his earnings until he reaches DATE .","A woman of DATE or more who continued to work would not be required to pay any NICs on her earnings .","The applicant wrote to his Member of ORG and the Paymaster General complaining about the difference in treatment for men and women . Both replied stating that since liability to pay national insurance contributions is linked to the state pension age , the treatment of men and women would equalise in DATE when the state pension age will equalise .","The National Insurance Act DATE , which first established the basis for the national social security scheme in GPE , set out a system of funding under which all employers and the majority of the working population , whether employed or self - employed , are liable to pay compulsory NICs contributions . This legislation has since been replaced , most recently , by the consolidating provisions of ORG DATE ( \u201c SSCBA DATE \u201d ) and ORG DATE .","Section CARDINAL(CARDINAL ) of the SSCBA DATE sets out the various classes of ORG . Of these , the largest category is Class CARDINAL contributions which consist of earnings - related contributions paid by employers and employees . Such contributions are levied as a percentage of earnings which varies according to the employee \u2019s earnings band . The ORG scheme is financed on a \u201c pay as you go \u201d basis , that is , current NICs fund current benefits : thus an individual \u2019s contributions fund not his or her own benefits but those of others ( NORP ( PERSON ) v. Secretary of ORG [ DATE ] CARDINAL All ORG paragraphs CARDINAL - CARDINAL ) .","A substantial contribution has been made to ORG from NICs for DATE . Following the National Insurance Act CARDINAL , which imposed an additional deduction of PERCENT of earnings above the upper earnings limits , the element of calculation of the ORG allocation was also increased from PERCENT of earnings paid in DATE to PERCENT .","Section CARDINAL(CARDINAL ) of the LAW provides that only those under the state pension age are liable to pay NICs from their earnings . The state pension ages are currently set as CARDINAL for men and CARDINAL for women according to section CARDINAL .","Section CARDINAL of the Pensions Act DATE provides for the equalisation of state pension ages for men and women to DATE . The state pension age for women will increase gradually from DATE and the equalisation will be complete in DATE . At the same time , the age until which women are liable to pay NICs will gradually increase in line with the increase in the state pension age .","Council Directive CARDINAL\/CARDINAL\/EEC of DATE provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security . However , in LAW provides for derogation in the matter of \u201c the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences therefore for other benefits \u201d .","In LOC The Queen v. Secretary of ORG , ex parte ORG [ DATE ] ECRCARDINAL - CARDINAL ( \u201c the ORG case \u201d concerning reference for a preliminary ruling from ORG ) , ORG found that :","Article CARDINAL had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old - age and retirement pensions and also forms of discrimination which are necessarily linked to that difference ;","Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where , having regard to the financial equilibrium of the national pension system in the context in which it appears , it can not be dissociated from a difference in pensionable age ;","In view of the advantages allowed to women by national pension systems , in particular as regards statutory pensionable age and length of contribution periods , and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from DATE to the next in respect of those periods , the ORG legislature intended to authorise the progressive implementation of that principle by the member ORG and that progressive nature could not be ensured if the scope of the derogation authorised by LAW were to be interpreted restrictively . ( Summary of judgment )"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","P1"],"non_violated_paragraphs":["P1-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-100960","languageisocode":"ENG","respondent":"BGR","branch":"COMMITTEE","date":2010,"docname":"CASE OF DORON v. BULGARIA","importance":4,"conclusion":"Violation of Art. 6-1;Violation of Art. 13+6-1","judges":"Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was charged with aiding and abetting large scale embezzlement . The charges were brought within the framework of criminal proceedings for abuse of power and embezzlement against several persons .","On DATE the applicant was questioned in connection to the above charges and a search of his business premises was carried out .","On DATE , DATE , DATE and DATE the applicant , some of the other persons charged and witnesses were questioned .","On DATE the applicant was also charged with documentary fraud , was questioned in that connection and bail was fixed for him .","DATE CARDINAL questioning sessions and a search were carried out and several other persons were charged with abuse of power and embezzlement .","As the applicant did not pay the bail and could not be found for questioning , on an unspecified date in DATE the NORP authorities , with the assistance of ORG , initiated a national and an international search for him .","On DATE the applicant was found in GPE and on DATE he was extradited to GPE .","Meanwhile , the criminal proceedings against him were still pending and between CARDINAL DATE and DATE CARDINAL questioning sessions were carried out and CARDINAL expert opinions were commissioned .","On DATE the applicant was questioned and the findings of the investigation were presented to him .","DATE a number of questioning sessions and several other investigative actions took place and the charges against the applicant were separated from these against the other persons involved .","On DATE a prosecutor from the GPE city public prosecutor \u2019s office dropped some of the charges against the applicant and prepared an indictment . Thus , the applicant remained charged only with aggravated documentary fraud , as a result of which he unlawfully received a large amount of money .","On DATE the indictment was sent to ORG .","During the first hearing of CARDINAL DATE it became clear that the applicant had returned the allegedly embezzled amount to the victim company .","For the period DATE and DATE ORG held CARDINAL hearings .","By a judgment of CARDINAL DATE ORG acquitted the applicant .","NORP The prosecutor appealed .","The Sofia Court of Appeal held CARDINAL hearings . By a judgment of CARDINAL March CARDINAL it upheld the acquittal .","The prosecutor appealed further . On CARDINAL DATE ORG held a hearing .","By a judgment of DATE ORG quashed ORG judgment because of procedural breaches and remitted the case for fresh examination .","After the remittal ORG held hearings on DATE and DATE .","In a judgment of CARDINAL DATE ORG upheld ORG judgment of DATE .","So did ORG in a final judgment of DATE .","Apparently , no civil claim was brought against the applicant throughout the proceedings .","During the search of the applicant \u2019s business LOC , carried out on DATE , a metal safe was seized . On CARDINAL DATE an investigator from ORG opened the safe and seized the amount of CARDINAL old NORP levs ( ORG ) ( the equivalent of MONEY at the time or MONEY ( ORG ) ) . In the seizure record of CARDINAL DATE it was stated that the amount had been seized pursuant to LAW ORG ) . The amount was deposited in a special bank account under which no interest was due .","After the end of the criminal proceedings against the applicant , he requested the return of the seized amount .","In a decision of DATE ORG ordered the amount to be returned to the applicant . It found that no civil claim had been lodged within the framework of the criminal proceedings and no attachments had been imposed . The applicant received CARDINAL new NORP levs ( ORG ) , MONEY , which was the equivalent of the seized amount after the denomination of DATE .","The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs CARDINAL of the ORG \u2019s judgment in the case of Atanasov and ORG v. GPE , no . CARDINAL , DATE .","Article CARDINAL of the ORG , as in force DATE , provided for attachment measures to guarantee the satisfaction of civil claims against the perpetrator , the payment of fines or the execution of confiscation orders . The provisions of LAW of DATE ( ORG ) , including as regards appeals to higher courts , applied in respect of the attachment procedure .","In case no civil action had been lodged within the prescribed time - limit , the interested party could request from the court to lift the imposed measure ( LAW .","Article CARDINAL of the ORG provided that the orders of the investigator were subject to appeal before the prosecutor and the orders of the prosecutor could be appealed before the prosecutor with a higher rank .","Articles CARDINAL - CARDINAL provided for the seizure of documents and other objects that could be of importance for the criminal proceedings . Pursuant to LAW ORG chattels and other objects could be collected as physical evidence and had to be held by the authorities until the termination of the criminal proceedings . They could be returned to their owners before that only as long as this would not hinder the establishment of the facts in the case ( LAW ) . As of DATE Article CARDINAL of the ORG was amended , thus clarifying that it was within the powers of the prosecutor \u2019s office to rule on requests for the return of such objects and introducing the right to appeal before the court in case of refusal ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112108","languageisocode":"ENG","respondent":"ESP","branch":"CHAMBER","date":2012,"docname":"CASE OF DEL R\u00cdO PRADA v. SPAIN","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;J\u00e1n \u0160ikuta;Josep Casadevall;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["The applicant was born in DATE . She is serving a prison sentence in the region of GPE ( GPE ) .","In CARDINAL sets of criminal proceedings before FAC , the applicant was sentenced as follows :","- In judgment CARDINAL of DATE : for being a member of a terrorist organisation , to CARDINAL years\u2019 imprisonment ; for illegal possession of weapons , to DATE imprisonment ; for possession of explosives , to CARDINAL years\u2019 imprisonment ; for forgery , to CARDINAL years\u2019 imprisonment ; for using forged identity documents , to CARDINAL months\u2019 imprisonment .","- In judgment CARDINAL\/CARDINAL of DATE : for damage to property , in conjunction with CARDINAL counts of grievous bodily harm , CARDINAL of causing bodily harm and CARDINAL of causing minor injuries , to CARDINAL years\u2019 imprisonment .","- In judgment CARDINAL of DATE : as a key accomplice in a fatal attack and for murder , to PERCENT imprisonment .","- In judgment CARDINAL of DATE , as a key accomplice in a fatal attack , to DATE imprisonment ; for QUANTITY murders , to DATE for each murder ; for CARDINAL attempted murders , to DATE on each count ; for damage to property , to CARDINAL years\u2019 imprisonment . The court ordered that in application of LAW of LAW of DATE the maximum duration of the sentence to be served ( condena ) should be DATE .","- In judgment CARDINAL of DATE : as a key accomplice in a fatal attack and in CARDINAL murders , to CARDINAL years\u2019 imprisonment in respect of each charge . In keeping with LAW of DATE , the court ordered that the maximum duration of the sentence to be served ( condena ) should be DATE .","- In judgment CARDINAL of DATE : for a fatal attack , to DATE imprisonment ; for CARDINAL murders , to DATE imprisonment on each count ; for CARDINAL attempted murders , to twenty years\u2019 imprisonment on each count ; on the charge of terrorism , to CARDINAL years\u2019 imprisonment . The judgment indicated that in respect of the custodial sentences the maximum sentence provided for in LAW of DATE should be taken into account .","- In judgment CARDINAL of DATE : for a fatal attack , to PERCENT imprisonment ; for murder , to QUANTITY years\u2019 imprisonment . The court again referred to the maximum term of imprisonment provided for in LAW .","- In judgment CARDINAL of CARDINAL DATE : for an attack combined with attempted murder , to DATE imprisonment ; for murder , to QUANTITY years\u2019 imprisonment ; for CARDINAL attempted murders , to CARDINAL years\u2019 imprisonment on each count ; and for damage to property , to CARDINAL years\u2019 imprisonment . The judgment noted that the sentence served should not exceed the maximum term provided for in LAW of DATE . In order to determine which criminal law was applicable ( LAW of DATE , which was applicable at the material time , or LAW ) , the Audiencia Nacional considered that the more lenient law was the DATE LAW , because of the maximum term of sentence provided for in its LAW , in conjunction with its LAW ( reduction of sentence for work done ) .","NORP In all , the terms of imprisonment to which the applicant was sentenced amounted to over DATE .","The applicant was held in preventive detention from DATE to CARDINAL DATE . On DATE she began to serve her sentence after conviction .","By a decision of CARDINAL November CARDINAL the Audiencia Nacional notified the applicant that the legal and chronological links between the crimes of which she had been convicted made it possible to group them together as provided for in LAW in conjunction with LAW , which had been in force when the offences were committed . The Audiencia Nacional combined all the applicant \u2019s prison sentences together and fixed the total term of imprisonment to be served at DATE .","By a decision of DATE , the Audiencia Nacional fixed the date on which the applicant would have fully discharged her sentence ( liquidaci\u00f3n de condena ) at DATE .","On DATE the authorities at the prison where the applicant was serving her sentence decided that , taking into account the CARDINAL ORG remission to which she was entitled for the work she had done since DATE , she should be released on DATE .","On DATE the Audiencia Nacional asked the prison authorities to review the date of the applicant \u2019s release in the light of new precedent set by ORG in its judgment CARDINAL of CARDINAL DATE , of which the Audiencia Nacional cited the relevant parts ( see Relevant domestic law and practice , below ) , which stated , inter alia :","\u201c Thus , the execution of the total sentence to be served [ condena ] shall proceed as follows : it shall begin with the heaviest sentences pronounced . The relevant benefits and remissions shall be applied to each of the sentences being served . When the first sentence has been served , the second sentence shall begin and so on , until the limits provided for in LAW of DATE have been reached . At such time , all of the sentences comprised in the total sentence to be served [ condena ] shall have been extinguished . \u201d","The Audiencia Nacional explained that this new case - law applied only to those people convicted under LAW of DATE to whom LAW had been applied . As that was the applicant \u2019s case , the date of her release would be changed accordingly .","The applicant lodged an appeal ( s\u00faplica ) . She argued , inter alia , that the application of ORG judgment was in breach of the principle of non - retroactivity of criminal law provisions less favourable to the accused . In her case the reduction of sentence for work done would now be calculated for each individual sentence and not for the total sentence to be served DATE and up to the maximum limit of DATE . This new method of calculation would in effect increase the term of imprisonment actually served by the applicant by DATE .","By an order of DATE the Audiencia Nacional set the date for the applicant \u2019s release at DATE .","The applicant appealed against that decision .","By a decision of DATE the Audiencia Nacional rejected the appeal and noted that it was not a matter of limits on prison sentences , but rather of how to apply reductions of sentence in order to determine the date of the prisoner \u2019s release . Such reductions were to be calculated in relation to each sentence individually . Concerning the principle of non - retroactivity , the Audiencia Nacional considered that it had not been breached because the criminal law applied in this case had been in force at the time of its application .","Relying on Articles DATE ( prohibition of discrimination ) , CARDINAL ( right to liberty ) , CARDINAL ( right to effective legal protection ) and CARDINAL ( principle of legality ) of the LAW , the applicant lodged an amparo appeal with ORG . By a decision of CARDINAL DATE , ORG declared the appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional relevance of her complaints .","The relevant provisions of the LAW read as follows :","\u201c All NORP are equal before the law and may not in any way be discriminated against on account of birth , race , sex , religion , opinion or any other personal or social condition or circumstance . \u201d","\u201c CARDINAL . Every person has the right to liberty and security . No one may be deprived of his or her freedom except in accordance with the provisions of this LAW and in the cases and in the manner prescribed by law .","... \u201d","\u201c CARDINAL . All persons have the right to obtain the effective protection of the judges and the courts in the exercise of their rights and legitimate interests , and in no case may there be a lack of defence .","Likewise , all persons have the right of access to the ordinary judge predetermined by law ; to the defence and assistance of a lawyer ; to be informed of the charges brought against them ; to a public trial without undue delays and with full guarantees ; to the use of evidence appropriate to their defence ; not to make self - incriminating statements ; not to declare themselves guilty ; and to be presumed innocent . ... \u201d","\u201c CARDINAL . No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a criminal offence , misdemeanour or administrative offence under the law in force at that time .","... \u201d","The relevant provisions of LAW of DATE , as in force at the material time , read as follows :","\u201c When all or some of the sentences imposed ... can not be served simultaneously by a convict , the following rules shall apply :","In imposing the term to be served , the order followed shall be that of the severity of the respective sentences , which the convict shall serve consecutively if possible , going on to the next sentence when the previous one has been served or extinguished by pardon ...","Notwithstanding the previous rule , the maximum term to be served ( condena ) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred , the others being declared extinguished once those already imposed cover that maximum , which may not exceed DATE .","The above limitation shall be applied even where the penalties have been imposed in different proceedings , if the facts , because they are connected , could have been tried as a single case . \u201d","\u201c Once his judgment or conviction has become final , any person serving a custodial or prison sentence may be granted a remission of sentence in exchange for work done . In serving the sentence imposed ... the detainee is entitled to DATE remission for DATE worked , and the time thus deducted is taken into account when granting release on licence .","The following persons shall not be entitled to remission for work done :","Detainees who escape or attempt to escape , even if they do not succeed .","Detainees who repeatedly misbehave while serving their sentence .","NORP The relevant provision of LAW in force at the material time reads a follows :","\u201c ... When a person found guilty of several criminal offences is convicted , in different sets of proceedings , of offences that could have been tried in a single case , in accordance with LAW , the judge or court which pronounced the last judgment of conviction shall , of its own motion or at the request of the public prosecutor or the convicted person , fix the maximum term to be served in respect of the sentences pronounced , in keeping with LAW ... \u201d","The relevant section of the DATE LAW ( no . DATE ) explained as follows how to calculate the term of imprisonment ( DATE of the sentence pronounced ) to be served in order for the detainee to be eligible for release on licence :","\u201c In calculating DATE of the sentence , the following rules shall apply :","( a ) The part of the sentence to be served ( condena ) which is subject to pardon for the purposes of release on licence shall be deducted from the total penalty pronounced , as if that penalty has been replaced by a lesser one .","( b ) The same rule shall apply to prison benefits entailing a reduction of the sentence to be served ( condena ) .","( c ) When a person is sentenced to CARDINAL or more custodial sentences , the sum of those sentences , for the purposes of release on licence , shall be considered as a single sentence to be served ( condena ) . ... \u201d","The new Criminal Code of DATE did away with the reduction of sentences in consideration of the work done in prison . However , those prisoners whose conviction was pronounced on the basis of LAW of DATE even after the entry into force of LAW continued to be eligible for reductions of sentence for work done . As to the maximum length of prison sentences and the application of reductions to the time served , LAW of DATE was amended by institutional law CARDINAL\/CARDINAL on measures for the full and effective execution of sentences . The relevant parts of LAW thus amended read as follows :","\u201c When some or all of the penalties for the different offences can not be served concurrently , they shall be served consecutively , in descending order of severity , as far as possible . \u201d","\u201c CARDINAL . Notwithstanding what is set forth in DATE , the maximum duration of the sentence to be served ( condena ) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred , the others being declared extinguished once those already imposed cover that maximum , which may not exceed DATE . GPE , the maximum limit shall be :","( a ) DATE when an individual has been found guilty of CARDINAL or more crimes and CARDINAL of them is punishable by law with a prison sentence of DATE ;","( b ) DATE when a convict has been found guilty of CARDINAL or more crimes and CARDINAL of them is punishable by law with a prison sentence exceeding DATE ;","( c ) DATE when a convict has been found guilty of CARDINAL or more crimes and CARDINAL of them are punishable by law with a prison sentence exceeding DATE ;","( d ) DATE when a convict has been found guilty of CARDINAL or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding DATE .","The above limitation shall be applied even where the penalties have been imposed in different proceedings , if the facts , because they are connected or because of when they were committed , could have been tried as a single case . \u201d","\u201c CARDINAL . If , as a result of the limitations established in DATE , the sentence to be served is CARDINAL the aggregate of all the sentences imposed , the sentencing judge or court may order that prison benefits , day - release permits , pre - release classification and the calculation of the time remaining to be served prior to release on licence be determined with reference to all of the sentences pronounced .","Such a decision shall be mandatory in the cases referred to in paragraphs ( a ) , ( b ) , ( c ) and ( d ) of section CARDINAL of Article CARDINAL of this Code , provided that the sentence to be served is CARDINAL the aggregate of all the sentences imposed . ... \u201d","NORP In an order of CARDINAL DATE , ORG considered that the combining of sentences in application of LAW of LAW of DATE and LAW concerned not the \u201c execution \u201d but the fixing of the sentence , and that its application was accordingly a matter for the convicting judge , not the judge responsible for the execution of sentences ( PERSON ) .","In a judgment of CARDINAL DATE ( CARDINAL ) ORG affirmed that the maximum term of imprisonment ( DATE ) provided for in LAW of DATE was just like a new sentence \u2013 resulting from but independent of the others \u2013 to which prison benefits provided for by law , such as release on licence and remission of sentence , applied \u201d ( point CARDINAL of the reasoning ) . ORG referred to LAW of DATE , according to which the combining of CARDINAL custodial sentences into CARDINAL was considered as a new sentence for the purposes of the application of release on licence .","That approach continued to be adopted after the entry into force of LAW of DATE as regards the legal maximum term to be served under LAW thereof ( see paragraph CARDINAL above ) . In its judgment DATE , of DATE , ORG affirmed that \u201c this limit is just like a new sentence \u2013 resulting from but independent of the others \u2013 to which prison benefits provided by law , such as release on licence , day release and pre - release classification apply \u201d ( point CARDINAL of the reasoning ) . A similar approach was followed in the judgment of DATE ( DATE ) , in which ORG , in the same terms , reiterated that the maximum term of imprisonment to be served \u201c is just like a new sentence \u2013 resulting from but independent of the others \u2013 to which prison benefits provided for by law , such as release on licence must be applied , subject to the exceptions provided for in Article CARDINAL of LAW of DATE \u201d ( point CARDINAL of the reasoning ) .","ORG departed from this case - law , however , in judgment DATE , of DATE , in which it established what is known as the \u201c Parot doctrine \u201d . ORG held that reductions of ORG sentences should be applied to each sentence individually , not to the maximum sentence of DATE imprisonment provided for in LAW of DATE . The relevant parts of ORG reasoning read as follows :","\u201c ... a joint interpretation of rules CARDINAL and CARDINAL of Article CARDINAL of LAW of DATE leads us to consider that the DATE maximum term does not become a new sentence , distinct from those successively imposed on the convict , or another sentence resulting from all the previous ones , but is the maximum term of imprisonment a prisoner should serve . The reasons that lead us to this interpretation are : ( a ) first , from a purely literal point of view , LAW by no means considers the maximum term of DATE as a new sentence to which any reductions to which the prisoner is entitled should apply , quite simply because it says no such thing ; ( b ) on the contrary , the penalty ( pena ) and the resulting term of imprisonment to be served ( condena ) are CARDINAL different things ; the wording used in the Criminal Code refers to the resulting limit as the \u201c maximum term to be served \u201d ( condena ) , establishing the different lengths of that \u201c maximum term to be served \u201d ( condena ) in relation to each of the respective \u201c sentences \u201d imposed , and calculated in CARDINAL different ways , by taking the different sentences in order of gravity , in accordance with the first rule , until CARDINAL of the CARDINAL maximum limits provided for is attained ( CARDINAL times the length of the heaviest sentence pronounced or , in any event , DATE ) ; ( c ) this interpretation is also suggested by the wording of the LAW , since after completing the successive sentences as mentioned , the prisoner will stop \u2018 discharging [ that is , serving ] the remaining ones [ in the prescribed order ] as soon as the sentences already served reach the requisite maximum length , which may on no account exceed DATE ... ( e ) and from a teleological point of view , it would not be logical , simply because of the aggregation of sentences , for a copious criminal record to be reduced to a single new sentence of DATE , with the effect that an individual who has committed a single offence is treated , without justification , in the same way as someone convicted of multiple offences , as is the case here . Indeed , there is no logic in applying this rule in such a way that committing CARDINAL murder is punished in the same way as committing CARDINAL murders ; ( f ) were application for a pardon to be made , it could not apply to the resulting total term to be served ( condena ) , but rather to CARDINAL , several or all of the different sentences imposed ; in such a case it is for the court that pronounced the sentence to decide , and not the judicial body responsible for applying the limit ( DATE ) , which shows that the sentences are different ; and in any event , the first rule of Article CARDINAL of LAW of DATE states how , in such a case , to verify the successive completion of the sentences \u201c when the previous ones have been extinguished by pardon \u201d ; ( g ) and to conclude this reasoning , from a procedural point of view LAW clearly states that it is a matter of fixing the maximum limit of the sentences pronounced ( in the plural , in keeping with the wording of the law ) , \u201c in order to determine the maximum length of these sentences \u201d ( the wording is very clear ) .","Which is why the term \u201c aggregate of the sentences to be served [ condenas ] \u201d is very misleading and inappropriate . The sentences are not merged into CARDINAL , but the serving of multiple sentences is limited by law to a certain maximum term . Consequently , the prisoner serves the different sentences , with their respective specificities and with all the benefits to which he is entitled . That being so , for the extinction of the sentences successively served , the reduction of sentences for work done may be applied in conformity with LAW .","Thus , the method for the discharge of the total term to be served [ condena ] is as follows : it begins with the heaviest sentences imposed . The relevant benefits and remissions are applied to each of the sentences the prisoner is serving . When the first [ sentence ] has been served , the prisoner begins to serve the next one and so on , until the limits provided for in LAW of DATE have been reached . At this stage , all of the sentences comprised in the total term to be served [ condena ] will have been extinguished .","For example , in the case of an individual given CARDINAL prison sentences , DATE , DATE and DATE . The second rule of Article CARDINAL of LAW of DATE ... limits the actual term to be served to CARDINAL times the most serious sentence or a maximum of DATE imprisonment . In this case , it would be the maximum term of DATE . The successive serving of the sentences ( the total term to be served ) begins with the first sentence , which is the longest one ( DATE in this case ) . If [ the prisoner ] were granted a DATE remission for whatever reason , he would have served that sentence after DATE imprisonment , and the sentence would be extinguished ; next , [ the prisoner ] would start to serve the next longest sentence ( DATE ) , and with a remission of DATE that sentence will have been served after DATE . MONEY = CARDINAL . [ The prisoner ] would not have to serve any other sentence , any remaining sentences being extinguished , as provided for in the applicable Criminal Code , once those already imposed cover that maximum , which may not exceed DATE . \u201d","In that judgment ORG considered that there was no well - established case - law on the specific question of the interpretation of LAW in relation to LAW . It referred to a single precedent , its judgment of DATE in which it considered that the maximum duration provided for in LAW of DATE was \u201c just like a new , independent sentence \u201d ( see paragraph CARDINAL above ) . However , ORG departed from that interpretation , pointing out that that decision , which it considered an isolated one , could not be relied on as a precedent in so far as it had never been applied in a constant manner as required under LAW of LAW . Even assuming that that decision could have been considered as a precedent , the court reiterated that the principle of equality before the law ( LAW ) did not preclude departures from the case - law , provided that sufficient reasons were given . Furthermore , the principle that the law should not be applied retroactively ( LAW ) was not meant to apply to case - law .","A dissenting opinion was appended to judgment DATE by CARDINAL judges . They considered that the sentences imposed successively were transformed or combined into another sentence of the same kind , but different in so far as it combined the various sentences into one . They called it \u201c the sentence to be served \u201d , that is to say the CARDINAL resulting from the application of the limit fixed in LAW of DATE , which effectively extinguished the sentences that went beyond that limit . This new \u201c unit of punishment \u201d was the term the prisoner had to serve , to which remission for work done should be applied . Remissions should therefore be applied to the sentences imposed , but only once they had been processed in conformity with the rules on the consecutive serving of sentences . The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of LAW of DATE , all NORP courts , including ORG ( agreements adopted at the Plenary sessions on DATE and CARDINAL DATE ) , had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of LAW of LAW of DATE ( the DATE limit ) . In application of that criterion no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done although they had each been given prison sentences of DATE .","The dissenting judges considered that the method applied by the majority was not provided for in LAW of DATE and therefore amounted to retroactive implicit application of the new LAW as modified by institutional law CARDINAL\/CARDINAL on measures for the full and effective execution of sentences ( see paragraph CARDINAL above ) . This new interpretation was also contra reo , constituted a policy of full execution of sentences alien to LAW of DATE , could be a source of inequalities and was contrary to the case - law of ORG ( judgments of DATE , CARDINAL DATE and DATE , see paragraphs CARDINAL above ) . Lastly , the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality , even in the case of an unrepentant terrorist murderer .","In a series of judgments of CARDINAL DATE ORG ruled on several amparo appeals lodged by convicts to whom the \u201c GPE doctrine \u201d had been applied . In CARDINAL cases ( DATE , DATE ) it allowed the appeals for violation of the right to effective judicial protection ( Article CARDINAL \u00a7 CARDINAL of the LAW ) and the right to liberty ( LAW ) . ORG considered that the new method of calculating remission following ORG departure in DATE from its earlier case - law was in contradiction with the earlier final judicial decisions in the NORP cases . In those earlier firm and final decisions , in order to determine which was the most lenient criminal law applicable ( LAW of DATE or that of DATE ) , the courts had based themselves on the principle that the reductions of sentence for work done provided for in LAW of DATE should be applied to the DATE maximum sentence , not to each sentence individually . In so doing they had reached the conclusion that the regime of LAW of DATE , with its reductions of sentence for work done , was more favourable to the appellants than LAW . In a third case ( appeal no . DATE ) , ORG found in the appellant \u2019s favour for violation of the right to effective judicial protection ( LAW ) , considering that the Audiencia Nacional had changed the date of the prisoner \u2019s final release , thereby disregarding its own firm and final judicial decision given DATE . In these CARDINAL cases ORG pointed out that the right to effective judicial protection included the right not to have final judicial decisions overruled ( the \u201c intangibility \u201d of final judicial decisions ) .","In CARDINAL other cases ORG dismissed the amparo appeals on the merits , finding that the decisions by which the ordinary courts had set the appellants\u2019 final dates of release in application of the departure from precedent in DATE had not contravened any final judicial decision concerning them .","Both in the judgments in the appellants\u2019 favour ( paragraph CARDINAL ) and in those against them ( paragraph CARDINAL ) ORG dismissed the complaints under LAW ( principle of legality ) , considering that the question of the calculation of remission for work done concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law , or a sentence exceeding the limit allowed by law . It cited the case - law of ORG according to which a distinction was to be made , for the purposes of LAW , between measures constituting a \u201c penalty \u201d and measures relating to the \u201c execution \u201d of a penalty ( PERSON GPE , no . ORG , \u00a7 DATE , DATE , and PERSON v. GPE , no . CARDINAL , \u00a7 DATE , DATE ) .","Several judges appended separate concurring or dissenting opinions to the judgments of ORG ."],"violated_articles":["5","7"],"violated_paragraphs":["5-1","7-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111529","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2012,"docname":"DUBOC v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos","text":["NORP The applicant , Mr PERSON , is a national of GPE and GPE , who was born in DATE . He is currently detained in a prison in GPE . He is represented before the ORG by Dr. PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG . The Government of GPE were given notice of the application , and they informed ORG on DATE that they would not exercise their right to intervene in the present case .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP In DATE the applicant opened a bank account with an NORP bank , bank PERSON The account was registered under his name and all movements on the account were able to be followed . By DATE the applicant \u2019s account had a positive balance of MONEY ( ORG ) .","NORP In DATE the applicant was indicted in GPE on various drug and money laundering charges relating to drug trafficking on a particularly large scale , which he was involved in from DATE until his arrest in DATE . The applicant entered into a Plea and Cooperation Agreement with the prosecution on CARDINAL DATE . Under that agreement , the applicant voluntarily forfeited to GPE PERCENT United States dollars ( ORG ) in assets . He was also obliged to identify all his assets . However , the applicant did not disclose his account with bank PERSON","While in prison the applicant was induced by CARDINAL of the other fellow inmates , who was cooperating with the ORG , to bribe a judge . The inmate also arranged a meeting between the applicant and PERSON , an undercover lawenforcement officer , who presented himself as being able to assist the applicant . Subsequently , PERSON arranged several money transfers for the applicant from bank PERSON in GPE .","Thereupon , on DATE , ORG requested the NORP authorities under letters rogatory to freeze the applicant \u2019s assets as a preliminary step to forfeiture under GPE law , subject to the operation of NORP law . It stated that the applicant \u2019s funds deposited with bank PERSON were the proceeds of money laundering and drug offences to which the applicant had pleaded guilty in DATE . It further held that these funds had also been used in additional money laundering offences for which the applicant would be indicted later .","This request was based on the treaty regulating judicial assistance between GPE and GPE , namely LAW ( \u201c the ORG \u201d ) , which entered into force on DATE .","On DATE ORG for LOC of GPE issued a Final Order of Forfeiture including the applicant \u2019s assets at bank PERSON ( \u201c the first forfeiture order \u201d ) . Apparently , the applicant \u2019s appeal against this decision was to no avail .","In a second set of criminal proceedings in GPE , the applicant was indicted for conspiracy to bribe a federal judge , conspiracy to tamper with a witness , conspiracy to money laundering and for money laundering .","On DATE ORG for LOC of GPE acquitted the applicant of bribery , but convicted him of all other charges . The court also ordered the forfeiture of his assets ( \u201c the second forfeiture order \u201d ) .","On DATE ORG for ORG partly granted the applicant \u2019s appeal against the decision of DATE and acquitted him with respect to money laundering . His conviction for conspiracy to tamper with a witness was affirmed . The court also reversed the second forfeiture order .","Based on the United States\u2019 letters rogatory of CARDINAL DATE , ORG ( PERSON f\u00fcr PERSON ) issued an interim measure on DATE enjoining the applicant from disposing of all assets deposited with bank PERSON It also held that the interim measure would be suspended on deposit of USD MONEY . The applicant did not pay that deposit and did not appeal against the court \u2019s decision . This interim measure was twice altered to reflect the increased value of the assets subject to it .","DATE Additional criminal proceedings were instituted against the applicant on suspicion of money laundering on DATE .","On DATE ORG of the Interior ( ORG f\u00fcr ORG ) issued a report listing all credits and debits on the applicant \u2019s account that had been carried out via bank transfer or by means of crossed cheques ( PERSON ) .","On DATE ORG dismissed the applicant \u2019s request for the suspension of the criminal proceedings and for the lifting of the interim measure . It held that only ORG could suspend the proceedings at this stage and that the interim measure was still justified .","On DATE ORG ( Oberlandesgericht ) rejected the applicant \u2019s request that it hold a hearing and dismissed his complaint against ORG decision of DATE . It held that according to the findings of GPE authorities the applicant could reasonably be suspected of having committed the crime of receiving stolen property ( Hehlerei ) and , after the entry into force of the relevant amendment to LAW , the crime of money laundering .","Subsequently , the applicant applied to have the interim measure lifted CARDINAL additional times DATE and DATE . All of his requests were to no avail .","Following the judgment of ORG for ORG of DATE and the applicant \u2019s acquittal of the charges of money laundering , the applicant applied again to have the interim measure lifted .","On DATE ORG dismissed this request and upheld the interim measure . It held that a distinction had to be made between the CARDINAL different proceedings in GPE . The first forfeiture order was still in force and consequently the interim measure in GPE could not be quashed . Even if the second forfeiture order had been lifted , the corresponding judgment of ORG for ORG had stated that at least some of the money in the applicant \u2019s account with bank PERSON had \u201c doubtlessly derived from drug related money \u201d . The interim measure was therefore still justified .","NORP This decision was upheld by ORG on DATE and served on the applicant \u2019s counsel on DATE .","On DATE ORG asked ORG to enforce the first forfeiture order . Furthermore , it discontinued the criminal proceedings against the applicant on DATE . It renewed the request on DATE .","Upon the request of ORG of DATE , ORG submitted a certified written version of the judgment issued against the applicant . However , it did not do so until DATE .","On DATE ORG dismissed ORG request for the execution of the first forfeiture order for formal reasons .","On DATE ORG allowed ORG appeal and remitted the case back to ORG .","On DATE ORG asked the GPE authorities to inform the applicant of the request of ORG for enforcement of the first forfeiture order and to give him the opportunity to comment on it .","On DATE the applicant and his former wife , both represented by counsel , requested in their comments that the first forfeiture order not be executed in GPE .","On DATE ORG , without holding a hearing , decided to take over the enforcement of the first forfeiture order and ordered the forfeiture of the applicant \u2019s NORP assets . The applicant appealed against this decision on DATE .","On DATE ORG dismissed the applicant \u2019s subsequent appeal . That decision was served on the applicant \u2019s counsel on DATE .","Section CARDINAL of the Extradition and Legal Assistance Act ( ORG no . CARDINAL ) stipulates that the LAW applies where international or bilateral agreements do not provide otherwise .","Section CARDINAL carries the heading \u201c reciprocity \u201d and , so far as relevant , provides as follows :","\u201c ( CARDINAL ) ORG requests may be granted only if it is ensured that the requesting State would also grant an equivalent NORP request .","...","( CARDINAL ) If there are doubts regarding compliance with reciprocity , information shall be obtained from the Federal Minister of ORG . \u201d","\u201c ( CARDINAL ) Enforcement or further enforcement of a decision by a foreign court which was pronounced with final and legal effect , in the form of a money fine or prison sentence , a preventive measure or a pecuniary measure ( verm\u00f6gensrechtliche Anordnung ) , is admissible at the request of another ORG if :","NORP the decision of the foreign court was taken in the course of proceedings in compliance with the principles of LAW . CARDINAL\/CARDINAL ) ;","NORP the decision was taken for an act that is sanctioned by a court sentence under NORP law ;","NORP the decision was not taken for one of the offences listed in LAW ;","no time lapse has occurred under NORP law regarding enforceability ;","NORP the person concerned by the decision of the foreign court \u2013 regarding this offence \u2013 is not prosecuted in GPE , was finally and effectively convicted or adjudicated in this matter or otherwise released from prosecution .","...","( CARDINAL ) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under NORP law for a money fine , a withdrawal of enrichment or forfeiture apply , and that no corresponding NORP measure has yet been taken .","...","( CARDINAL ) Fines , forfeited assets or enrichment withdrawn shall fall to GPE . \u201d","The LAW was signed on DATE and , following ratification , entered into force on CARDINAL DATE ( ORG III , no . DATE ) .","\u201c ( CARDINAL ) The Contracting Parties shall provide mutual assistance , in accordance with the provisions of LAW , in connection with the investigation and prosecution of offences , the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of ORG , and in related forfeiture proceedings .","( CARDINAL ) ORG shall include :","...","( h ) assisting in proceedings related to forfeiture and restitution ; ... \u201d","\u201c ( CARDINAL ) If ORG of one ORG becomes aware of fruits or instrumentalities of offences which are located in the territory of the other ORG and may be forfeitable of otherwise subject to seizure under the laws of that ORG , it may so inform ORG of the other ORG . If the other ORG has jurisdiction in this regard , it may present this information to its authorities for a determination as to whether any action is appropriate . These authorities shall issue their decision and shall , through their ORG , report to the other ORG on the action taken .","( CARDINAL ) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences , restitution to the victims of crime , and the collection of fines imposed as sentences in criminal prosecutions .","( CARDINAL ) A Requested ORG in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law . To the extent permitted by its laws and upon such terms as it deems appropriate , either ORG may transfer forfeited assets or the proceeds of their sale to the other ORG . \u201d","\u201c ( CARDINAL ) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of LAW . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-93856","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF LAMAZHYK v. RUSSIA","importance":4,"conclusion":"Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial","judges":"Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and lived until his arrest in the town of NORP in GPE .","On DATE criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery . On DATE he was arrested . DATE , however , his release was authorised on condition that he did not leave his town of residence .","On DATE the head of the investigative unit of ORG of GPE authorised the applicant \u2019s arrest in a decision which , in so far as relevant , read :","\u201c On TIME DATE , at TIME , [ the applicant ] , who is unemployed , acting with mercenary intent for the purpose of stealing another \u2019s property , in collusion with Mr O. and unidentified persons , arrived by car ... at the village of PERSON ... [ and ] , having unlawfully entered a house and used weapons , attacked PERSON . and Mr NORP After beating the victims Mr Kh . and Mr NORP and having tied their hands , [ the applicant ] , Mr O. and unidentified individuals , issuing threats of murder , killed CARDINAL [ cows ] , placed their bodies in the cars and stole property , thus causing the victims Mr O. , Mr Or . and Mr D. pecuniary damage in the amount of MONEY , and fled the crime scene .","Having regard to the threat which the committed criminal offence poses to society and taking into account that [ the applicant ] , if at liberty , may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court ...","[ I ] ORDER :","That a measure of restraint in the form of arrest should be applied to [ the applicant ] , who is to be informed of this , against his signature on a copy of the present decision ... \u201d","The decision bore the applicant \u2019s signature under the last printed paragraph , confirming that the decision had been served on him on CARDINAL DATE .","On DATE the head of the investigative unit placed the applicant on the wanted persons list . The relevant part of the decision read :","\u201c On DATE a decision charging [ the applicant ] with having committed a crime proscribed by LAW ( b ) of LAW and a warrant for his arrest were issued , given the particular gravity and dangerous nature of the crime committed by him . On DATE [ police officers ] were authorised to bring [ the applicant ] to the pre - trial investigating authorities for the reading out of the charges and his questioning as an accused . However , the accused , [ the applicant ] , was not found at his place of residence ... [ It ] was established that he left for LOC in GPE . His exact location was not discovered . \u201d","On DATE the applicant was arrested . On the following day ORG authorised his detention on remand .","On DATE the acting Prosecutor of GPE , by the same decision , extended the applicant \u2019s and his co - defendant \u2019s detention until DATE , relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released .","NORP The applicant \u2019s and his co - defendants\u2019 detention was further extended on DATE , CARDINAL and DATE until DATE and DATE and DATE respectively , with reference to the same grounds as in the decision of DATE .","On DATE the applicant was committed for trial before ORG of GPE . According to the Government , the applicant \u2019s detention from DATE was not covered by any legal order as the domestic authorities were not required to issue CARDINAL under the legislation governing criminal procedure .","On DATE ORG of GPE adjourned the examination of the criminal case because CARDINAL of the applicant \u2019s co - defendants had violated the conditions of his release on bail and had absconded . The case file was sent to ORG . ORG also noted that the prosecution authorities were to \u201c determine the issue of the application of a measure of restraint [ in respect of the applicant and his co - defendants ] \u201d .","ORG of GPE resumed proceedings on DATE and fixed a hearing for DATE . That hearing was adjourned because the victims and a lawyer failed to appear .","On DATE ORG of GPE returned the case file to the prosecution authorities with an order to correct certain serious procedural defects , noting that the defence rights had been violated . In the same decision ORG held that the measure of restraint applied to the co - defendants , including the applicant , should \u201c remain unchanged \u201d due to the gravity of the charges against them .","On DATE ORG of GPE , acting on appeals from the applicant \u2019s co - defendants , upheld the decision of DATE , endorsing the reasons given by the lower court .","On DATE the acting Prosecutor of the Tyva Republic , relying on the gravity of the charges and the GPE liability to abscond , pervert the course of justice and re - offend , in a single decision , extended the applicant \u2019s and his co - defendants\u2019 detention until DATE . A further extension until DATE was ordered by a deputy Prosecutor General of GPE , with reference to the same grounds .","On DATE the prosecution authorities returned the case file to ORG of GPE , which on DATE remitted the case again for additional investigation , noting serious violations of the defence rights , which had not been remedied during the previous referral of the case file to the prosecution authorities . ORG also noted that the defendants should remain in custody , given the gravity of the charges against them .","Having received the case file , on DATE the first deputy prosecutor of GPE extended the applicant \u2019s and co - defendants\u2019 detention until DATE , relying on the previously used grounds , namely the gravity of the charges and the defendants\u2019 liability to abscond , reoffend and pervert the course of justice .","On DATE the additional investigation ended and ORG of GPE received the case file . It fixed the first hearing for DATE . As follows from copies of court TIME presented by the Government , the hearing of DATE , and the following hearings scheduled for DATE and DATE , were adjourned because the presiding judge was involved in other unrelated proceedings .","In the meantime , the composition of the bench changed : a new presiding judge and lay assessor were assigned to the case . DATE and DATE ORG of GPE fixed CARDINAL hearings , of which CARDINAL were adjourned because the co - defendants\u2019 lawyers failed to appear , CARDINAL hearing was rescheduled because the victims did not attend and CARDINAL hearing was adjourned because it was necessary to serve a co - defendant with a copy of the indictment bill in a language he understood .","On DATE ORG of GPE , having found that the prosecution authorities had committed serious procedural violations at the indictment stage , referred the case back for additional investigation with an order to respect the rights of the defendants , including their right to the services of an interpreter , etc . ORG also stressed that the defendants should remain in detention .","On DATE ORG of GPE quashed the decision of DATE in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by ORG of GPE . At the same time ORG of GPE held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody .","After having received the case file on DATE , ORG of GPE fixed the first hearing for DATE . That hearing was adjourned because the co - defendants\u2019 counsel failed to appear . The subsequent CARDINAL hearings , listed for DATE , were postponed for the same reason .","On DATE ORG of GPE authorised an extension of the GPE detention for DATE , until DATE , holding as follows :","\u201c Taking into account the prosecutor \u2019s arguments that [ the defendants ] are charged with a criminal offence which belongs to the category of particularly serious [ offences ] , punishable by a maximum of DATE imprisonment , [ and ] having regard to the particular complexity of the criminal case and [ the fact ] that the release from custody of the defendants , who pose an increased danger to society , may impede considerably a","Of the CARDINAL hearings scheduled DATE and DATE by ORG of GPE , CARDINAL were adjourned because the co - defendants\u2019 lawyers and the victims failed to appear and CARDINAL hearing was postponed to provide counsel with additional time to study the materials of the case file .","On DATE ORG of GPE , using identical wording as that in the decision of DATE , extended the GPE detention until DATE .","DATE and DATE ORG of GPE fixed CARDINAL hearings , of which CARDINAL were adjourned because the defence counsel failed to appear or were on DATE leave , one hearing was postponed because a co - defendant was ill and one was rescheduled due to a victim \u2019s failure to attend .","On DATE ORG of GPE once again extended the GPE detention for DATE , until DATE , invoking the same grounds as in the previous CARDINAL detention orders of DATE and DATE .","The applicant \u2019s lawyer appealed against the detention order of CARDINAL DATE , arguing that the applicant \u2019s detention from CARDINAL to DATE had not been covered by any legal order , in violation of the requirements of LAW and that the detention in general was excessively long .","On DATE ORG of GPE upheld the detention order of DATE , noting that the applicant \u2019s and his co - defendants\u2019 detention had been regularly extended in compliance with the requirements of the NORP legislation on criminal procedure . It further stressed that in extending the GPE detention ORG of GPE had correctly relied on the gravity of the charges . As regards the detention from DATE , ORG of GPE held that the detention had been lawful , since the prosecution authorities had submitted the application for the extension before DATE and ORG of GPE had merely scheduled the hearing for DATE .","In the meantime , ORG of GPE listed QUANTITY hearings DATE and DATE . Of those hearings , CARDINAL were adjourned because the victims failed to appear , CARDINAL hearings were rescheduled because the co - defendants\u2019 counsel were either involved in other proceedings or failed to appear , CARDINAL hearing was postponed because the presiding judge was ill , one was postponed on the applicant \u2019s lawyer \u2019s request and CARDINAL were cancelled because it was necessary to determine the issue of the defendants\u2019 representation .","On DATE ORG of GPE , relying on the same grounds as in the detention orders issued in DATE , issued a collective decision in respect of all the defendants , extending their detention until DATE . Subsequent identically - worded detention orders were issued by ORG of GPE on DATE and DATE , extending the GPE detention until DATE and DATE respectively . The detention orders of DATE , DATE and DATE were amenable to appeal . Neither the applicant nor his lawyer made use of the appeal procedure .","Of the QUANTITY hearings scheduled DATE , QUANTITY hearings were adjourned because either witnesses or co - defendants\u2019 and GPE counsel failed to appear , CARDINAL were postponed because the applicant \u2019s lawyer did not attend , CARDINAL were rescheduled because the co - defendants\u2019 counsel were involved in other proceedings and CARDINAL was cancelled following a co - defendant \u2019s request to consult a lawyer .","On DATE ORG of GPE found the applicant guilty of aggravated robbery and aggravated theft of weapons and sentenced him to DATE and CARDINAL months\u2019 imprisonment . The applicant decided not to lodge an appeal .","Until DATE criminal - law matters were governed by LAW of DATE , \u201c the old CCrP \u201d ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , \u201c the new CCrP \u201d ) .","\u201c Preventive measures \u201d or \u201c measures of restraint \u201d include an undertaking not to leave a town or region , a personal guarantee , bail and remand in custody ( LAW CCrP , LAW ) .","LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .","Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .","The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor , supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .","When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are \u201c sufficient grounds to believe \u201d that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused \u2019s character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .","Before DATE , remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were \u201c exceptional circumstances \u201d in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment , if they had previously defaulted , had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed . The new ORG reproduced the amended provisions ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .","The Codes make a distinction CARDINAL types of remand in custody : the first being \u201c during investigation \u201d , that is , while a competent agency \u2013 the police or a prosecutor \u2019s office \u2013 is investigating the case , and the second being \u201c before the court \u201d ( or \u201c during judicial proceedings \u201d ) , at the judicial stage . Although there is no difference in practice between them ( the detainee is held in the same detention facility ) , the calculation of the time - limits is different .","After arrest the suspect is placed in custody \u201c during investigation \u201d . The maximum permitted period of detention \u201c during investigation \u201d is DATE but this can be extended for DATE in \u201c exceptional circumstances \u201d . Under the old ORG , extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions , taken by courts of ascending levels ( under the new CCrP ) . No extension of detention \u201c during investigation \u201d beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .","The period of detention \u201c during investigation \u201d is calculated up to the date on which the prosecutor sends the case to the trial court ( Article CARDINAL of the old CCrP , Article CARDINAL \u00a7 CARDINAL of the new CCrP ) .","Access to the materials in the file is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of the detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .","Under the old ORG , the trial court was entitled to refer the case back for \u201c additional investigation \u201d if it found procedural defects that could not be remedied at the trial . In such cases the defendant \u2019s detention was again classified as \u201c during investigation \u201d and the relevant time - limit continued to apply . If , however , the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention \u201c during investigation \u201d , a supervising prosecutor could nevertheless extend the detention period for DATE , starting from the date on which he or she received the case . Subsequent extensions could only be granted if the detention \u201c during investigation \u201d had not exceeded DATE ( Article CARDINAL ) .","From the date the prosecutor refers the case to the trial court , the defendant \u2019s detention is classified as \u201c before the court \u201d ( or \u201c during judicial proceedings \u201d ) .","Before DATE the old ORG set no time - limit for detention \u201c during judicial proceedings \u201d . On DATE a new Article , CARDINAL - CARDINAL , entered into force which established that the period of detention \u201c during judicial proceedings \u201d could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant \u2019s release might impede a thorough , complete and objective examination of the case , a court could \u2013 of its own motion or on a request by a prosecutor \u2013 extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .","The new ORG provides that the term of detention \u201c during judicial proceedings \u201d is calculated from the date the court received the file up to the date on which judgment is given . The period of detention \u201c during judicial proceedings \u201d may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .","Under the old ORG , the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee \u2019s counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances , if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee \u2019s release ( LAW ) . An appeal to a higher court lay against the judge \u2019s decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph CARDINAL below ) ( Article CARDINAL in fine ) .","Under the new ORG , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention . The appeal court must rule on the appeal within DATE of its receipt ( LAW ) .","Upon receipt of the case file , the judge must determine , in particular , whether the defendant should be held in custody or released pending the trial hearings ( LAW and LAW CCrP , LAW ) and LAW ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) .","At any time during the judicial proceedings the court may order , vary or revoke any preventive measure , including remand in custody ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberation room and signed by all the judges on the bench ( LAW ORG , LAW ) .","An appeal against such a decision lies to a higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP \u2013 see paragraph CARDINAL below ) .","Under the old ORG , within DATE after receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to refer the case back for further investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ; or ( CARDINAL ) to fix a trial date ( Article CARDINAL ) . In the latter case , the trial proceedings must begin no later than DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .","NORP The duration of the entire trial proceedings is not limited in time .","Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE after it was lodged . In exceptional circumstances or in complex cases or in proceedings before ORG this period could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .","The new ORG provides that the appeal court must start the examination of the appeal DATE after it is lodged ( Article CARDINAL ) ."],"violated_articles":["5","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58245","languageisocode":"ENG","respondent":"FRA","branch":"GRANDCHAMBER","date":1998,"docname":"CASE OF LEHIDEUX AND ISORNI v. FRANCE","importance":2,"conclusion":"Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"C. Russo;John Freeland;R. Pekkanen","text":["Mr PERSON , the first applicant , who was born in DATE and died on DATE ( see paragraph CARDINAL above ) , was formerly an administrator and later a director of several companies \u2013 including ORG \u2013 and lived in GPE . From DATE to DATE he was Minister for ORG in the Government of Marshal P\u00e9tain and , from DATE to DATE , a member of ORG . He was the President of ORG .","The second applicant , Mr Isorni , who was born in DATE and died on CARDINAL DATE ( see paragraph CARDINAL above ) , was formerly a lawyer practising in GPE . As First Secretary of ORG , he was officially appointed to assist the President of ORG in defending Marshal P\u00e9tain at his trial before ORG . On DATE ORG sentenced PERSON to death and forfeiture of his civic rights for collusion with GPE with a view to furthering the designs of the enemy .","On DATE the DATE newspaper ORG published a CARDINAL - page advertisement bearing the title \u201c People of GPE , you have short memories \u201d in large print , beneath which appeared in small italics , \u201c PERSON P\u00e9tain , DATE \u201d . The text ended with an invitation to readers to write to ORG and ORG .","The text , which was divided into several sections each beginning with the words \u201c People of GPE , you have short memories if you have forgotten \u2026 \u201d in large capitals , recapitulated , in a series of assertions , the main stages of PERSON life as a public figure from DATE to CARDINAL , presenting his actions , first as a soldier and later as NORP Head of State , in a positive light .","In respect of the CARDINAL\u2013CARDINAL period , the text contained the following passage :","\u201c PEOPLE OF GPE , YOU HAVE SHORT MEMORIES","\u2013 IF YOU HAVE FORGOTTEN ...","\u2013 That in DATE the civil and military authorities had led GPE to disaster . Those responsible begged him to come to its assistance . By his call to the nation of CARDINAL DATE he secured an armistice and prevented the enemy from camping on the shores of the LOC , thereby saving the ORG . Power was then legally conferred on him by ORG , in which ORG had a majority . The grateful NORP people rightly saw him as their saviour . There were \u2018 forty million P\u00e9tainists\u2019 ( PERSON ) .","How many no longer remember this and how many have disavowed it ?","\u2013 That in the thick of difficulties which no NORP Head of State had ever known , NORP atrocities and persecutions , he protected them against NORP omnipotence and barbarism , thus ensuring that CARDINAL prisoners of war were saved .","\u2013 That he provided DATE bread , re - established social justice , defended private schools and protected a pillaged economy .","\u2013 That , through his supremely skilful policy , he managed to send a personal representative to GPE on DATE that he went to PERSON , thereby allowing GPE , in defeat , to maintain its position between the contradictory demands of the NORP and the ORG and , through his secret agreements with GPE , to prepare and contribute to its liberation , for which he had formed the army of LOC .","\u2013 That he preserved for GPE virtually every part of what people then still dared to call the NORP GPE .","\u2013 That he was threatened by PERSON and PERSON for resisting their will , and that on DATE NORP troops carried him off to GPE .","PEOPLE OF GPE , YOU HAVE SHORT MEMORIES","\u2013 IF YOU HAVE FORGOTTEN ...","\u2013 That , while he was a prisoner of the enemy , PERSON was prosecuted on the orders of PERSON for betraying his country , whereas he had done all he could to save it .","\u2013 IF YOU HAVE FORGOTTEN ...","\u2013 That , having escaped from GPE , he returned to GPE , however great the personal risk to himself , to defend himself against that monstrous accusation and to try to protect , by his presence , those who had obeyed his orders .","PEOPLE OF GPE , YOU HAVE SHORT MEMORIES","\u2013 IF YOU HAVE FORGOTTEN ...","\u2013 That the prosecution , with the collusion of persons in the highest authority , used a forgery , as in the PERSON case , to secure his conviction and that at DATE of age he was condemned , in haste , to death ... \u201d","On DATE ORG Members of the Resistance filed a criminal complaint , together with an application to join the proceedings as a civil party , against a Mr L. , the publication manager of ORG , for publicly defending the crimes of collaboration with the enemy , and against Mr PERSON as President of ORG , Mr Isorni as the author of the text complained of and PERSON , as President of ORG , for aiding and abetting a public defence of the crimes of collaboration with the enemy .","The civil party argued that the text was an apologia which contravened the criminal law since it tended to justify the policy of PERSON , who had been found guilty by ORG on DATE ( see paragraph CARDINAL above ) .","The applicants denied that their advertisement constituted a public defence of the crimes of collaboration with the enemy , but acknowledged that the spirit of the text was consistent with their aim of having the judgment of ORG overturned and rehabilitating Marshal P\u00e9tain .","On CARDINAL DATE the public prosecutor filed his final submissions recommending that the charges be dropped on the ground that the offence had not been made out .","He considered that \u201c the political and historical light \u201d in which the applicants had portrayed PERSON policy during DATE was \u201c radically different from the approach adopted by ORG of Justice \u201d : \u201c far from glorifying the policy of collaboration , the defendants ... [ gave ] credit to Marshal P\u00e9tain \u2013 the fact that their historical perception [ might ] appear incorrect , misguided or partisan being of little consequence \u2013 for his endeavours and actions to protect GPE and its people and his contribution to the country \u2019s liberation ... \u201d . He added that , although their aim had been to enhance PERSON image and praise his conduct during the Second World War , this positive assessment could be construed as a public defence of his actions \u201c only by arbitrarily separating the image thus embellished from its supporting text and its link with the purely extrinsic information which , for the most part , was contained in the documents on ORG file \u201d . He concluded that \u201c it might appear strange to commit for trial before ORG the authors and producers of a text which glorifies an individual , not for the crimes of which he was convicted , but for the beneficial actions which he is deemed to have performed for the good of GPE , its people and , secretly , the Allies \u201d .","The investigating judge did not follow the public prosecutor \u2019s submissions . In an order of CARDINAL DATE , he committed PERSON , the applicants and PERSON for trial before ORG on charges , against the first defendant as principal and the others as accomplices , of making a public defence of the crimes of collaboration with the enemy , defined in section CARDINAL ) of the Freedom of the Press Act of DATE .","The investigating judge observed : \u201c a public defence means a speech or text which tends to defend or vindicate a doctrine or an action \u201d . He noted that the applicants had presented Marshal P\u00e9tain \u2019s policy during DATE in a favourable light , crediting him with endeavours and actions to protect GPE and its people , whereas the same events had been the subject of lengthy , detailed reasoning in the judgment of ORG convicting PERSON . He therefore considered that the part of the published text referring to the GPE period incorporated , developed and glorified the grounds of defence submitted by PERSON at his trial before ORG and therefore amounted to a \u201c justification of the actions and policies of PERSON , convicted under ORG DATE of the LAW \u201d then in force .","On DATE ORG , the proceedings before which had been joined by ORG and ORG and Interned Members of ORG , as civil parties , acquitted the defendants and ruled that it lacked jurisdiction to deal with the civil parties\u2019 application .","The court stated that its task was \u201c not to take sides in the historical controversy which , for DATE , has pitted the Resistance associations against PERSON supporters \u201d , but to determine whether the offence had been made out in the instant case . In that connection , the court specified that , \u201c according to the civil parties\u2019 and the public prosecutor \u2019s own submissions , the defendants [ were ] being prosecuted for their opinions ... \u201d and that \u201c no restrictions [ could ] be imposed on freedom of expression other than those derived from statute , strictly interpreted ... \u201d .","The court held that only the part of the text referring to the PERSON period could be construed as a public defence of the crimes of collaboration with the enemy . It noted that this part of the text was clearly a eulogy of PERSON , an appeal in his defence designed to create a shift in public opinion favourable to the reopening of his case . It considered , however , that the offence had not been made out , for the following reasons : the text contained \u201c no attempt to justify collaboration with NORP GPE \u201d , but stated that PERSON aim had been to \u201c facilitate the Allies\u2019 victory \u201d ; PERSON collaboration with NORP GPE was neither acknowledged nor presented in a favourable light ; the fact that the judgment of ORG constituted res judicata did not in any way prevent the defenders of PERSON memory from criticising it ; the text was part of a campaign in which the second applicant had been engaged DATE to have the judgment of ORG overturned , an objective which was \u201c perfectly legal \u201d .","The court emphasised , \u201c for the avoidance of any doubt \u201d , that its judgment \u201c should not be deemed to favour one of the arguments put forward in the historical controversy \u201d .","ORG Members of the Resistance and the Resistance Action Committee appealed .","In a judgment of CARDINAL DATE ORG held , firstly , that the combined effect of LAW of LAW and LAW of DATE was that the civil parties did not have standing to trigger a public prosecution and , secondly , that the prosecutor \u2019s submissions on their complaint did not satisfy the formal requirements laid down on pain of nullity in the same LAW . The court therefore declared the prosecution and subsequent proceedings null and void .","ORG Members of the Resistance and the Resistance Action Committee appealed on points of law against the above judgment .","In a judgment of DATE ORG ) held that ORG had erred in law . Accordingly , it quashed the judgment of CARDINAL DATE in its entirety and remitted the case to ORG with a differently constituted bench .","On DATE ORG declared the CARDINAL civil party applications admissible , set aside the acquittals and awarded the civil parties damages of MONEY . It also ordered the publication of excerpts from the judgment in ORG .","In its judgment it held that the CARDINAL constituent elements of the offence of making a public defence of the crimes of collaboration had been made out .","It found , firstly , that the public element had been made out owing to the fact that the text in question had been published in ORG .","It went on to say that the text contained an \u201c apologia \u201d for the crimes of collaboration , and that the mental element had been made out , for the following reasons :","\u201c The glorification of PERSON by the authors of this manifesto is conveyed by the celebration of what they seek to portray as great deeds ; thus , equal prominence is given , for example , to the victory at GPE and the defeat at FAC , attributed to PERSON like the securing of the armistice in DATE and \u2018 his policy\u2019 , described as \u2018 supremely ORG : \u2018 He managed to send a personal representative to GPE on DATE that he went to PERSON , thereby allowing GPE , in defeat , to maintain its position between the contradictory demands of the NORP and the ORG and , through his secret agreements with GPE , to prepare and contribute to its liberation , for which he had formed the army of ORG . Praise of the PERSON policy is thus magnified by reference to its supposed results . This is indeed an unreserved eulogy of a policy which is none other than that of collaboration . The significance of the meeting between PERSON and PERSON at PERSON on DATE to which the authors of the advertisement refer were specified as follows in a radio broadcast by P\u00e9tain of DATE :","\u2018 It is in honour and in order to maintain NORP unity , a DATE unity , within the framework of constructive action for a new NORP order that I DATE embark upon the path of PERSON","The order referred to here was none other than the NORP order based on racism defined in PERSON , to which PERSON had just officially subscribed in advance by signing , on DATE , the so - called LAW relating to aliens of NORP race , who were later to be interned in camps set up in GPE for that purpose , in order to facilitate their conveyance to the NORP concentration camps which were their intended destination .","Through the absence from the text of any criticism of these artfully concealed facts or even any attempt to distance its authors from them , this manifesto does indeed , therefore , implicitly but necessarily , contain an apologia for the crimes of collaboration committed , sometimes with the active participation and sometimes with the tacit consent of ORG , that is of PERSON and his zealots , in the very \u2018 atrocities\u2019 and \u2018 NORP persecutions\u2019 to which the text refers .","The court is forced to the above conclusion without taking sides in the historical controversy between those who think that PERSON was really playing a double game supposedly beneficial to the NORP and those who place reliance only on PERSON \u2019s avowed policies and publicly announced official decisions , regardless of the excuses that he was able to put forward or that his supporters now seek to cloak him in . Accordingly , this court finds that the advertisement in issue did contain the apologetic element of the offence charged .","In addition , for the offence to be made out , the mental element must be established .","The accused , headed by GPE , the author of the manifesto , are seeking revision of the judgment given by ORG on DATE , which sentenced PERSON to death , forfeiture of his civic rights and confiscation of his possessions for collusion with GPE , a power at war with GPE , with a view to furthering the enemy \u2019s designs , this conduct constituting offences defined by and punishable under LAW and CARDINAL of LAW .","The accused , with the exception of [ Mr L. ] , all claim responsibility for the text in issue and maintain that their object in publishing it was to create a shift in public opinion which , in their view , would increase support for a decision to reopen the case .","This goal , pursued unremittingly by PERSON in particular , PERSON \u2019s former defence counsel before ORG , who seeks to have a new judicial decision substituted for ORG judgment , is considered by that lawyer to be a sacred duty of the defence . However legitimate on his part and the part of those who expressed their support for his action their intention to have the case reopened may have been , it did not justify the use of unlawful means to further that aim , since they knew that by putting forward an unqualified and unrestricted eulogy of the policy of collaboration they were ipso facto justifying the crimes committed in furtherance of that policy , and therefore can not have acted in good faith . \u201d","The applicants , PERSON and PERSON appealed on points of law against the above judgment . In their statement of the grounds of appeal they relied on LAW and complained that they had been convicted for their opinions . Their aim had been to defend what they considered to be just in the action of a convicted person , without glorifying war crimes or the crimes of collaboration of which he had been convicted in the judgment which they were seeking to have overturned . They asserted that ORG had found them guilty of making an \u201c implicit apologia \u201d , constituted more by what they had not said than by the content of the text itself , holding that the manifesto in issue \u201c implicitly but necessarily \u201d contained an apologia for the crimes of collaboration and convicting them for what they had not written and the criticisms they had not made , despite the fact that they had referred in their text to NORP atrocities and barbarism .","On DATE ORG dismissed the appeals on the following grounds :","\u201c Having regard [ to the ] findings [ of ORG ] ORG , whose task is to determine whether the text prosecuted under section CARDINAL ) of the Act of DATE constitutes a public defence of the crimes contemplated in that LAW , is satisfied from its examination of the article in question that the passage referred to by ORG falls within the contemplation of the aforementioned LAW . In presenting as praiseworthy a person convicted of collusion with the enemy , the text glorified his crime and , in so doing , publicly defended it . The mental element of the offence can be inferred from the deliberate nature of the acts on account of which the defendants were charged .","In delivering that judgment , ORG did not exceed its powers . Nor did it infringe the right to freedom of expression protected by LAW , paragraph CARDINAL , of LAW , since the exercise of that right may , under paragraph CARDINAL of that Article , be subject to certain restrictions prescribed by law , where these are necessary , as in the instant case , in the interests of national security , territorial integrity or public safety . \u201d","In DATE section CARDINAL of the Freedom of LAW of DATE read as follows :","\u201c Where a crime or major offence is committed , anyone who , by uttering speeches , cries or threats in a public place or assembly , or by means of a written or printed text , drawing , engraving , painting , emblem , image , or any other written , spoken or pictorial item sold or distributed , offered for sale or exhibited in a public place or assembly , or by means of a placard or notice exhibited in a place where it can be seen by the public , has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto . \u201d","At the same time , section CARDINAL provided that \u201c anyone who , by CARDINAL of the means set out in section CARDINAL , has made a public defence of ... the crimes of collaboration with the enemy \u201d was to be liable to CARDINAL to CARDINAL years\u2019 imprisonment and a fine of from CARDINAL .","The NORP courts have gradually clarified the conditions for the application of the provisions making public defence of a crime a criminal offence .","ORG has ruled that public defence of the crimes defined in section CARDINAL(CARDINAL ) of the LAW of DATE is a separate offence from unsuccessful incitement to commit CARDINAL of the crimes listed in sub - sections CARDINAL and CARDINAL of the same section and that the constituent elements of each of those offences must not be confused ( Crim . DATE , ORG . crim . no . CARDINAL ) .","As early as DATE ORG held that public defence of a criminal amounted to public defence of his crime ( Crim . DATE , ORG . crim . no . DATE ) . That case - law was upheld by a decision to the effect that the glorification of a person on the basis of facts constituting one of the crimes or major offences listed in section CARDINAL(CARDINAL ) of LAW constituted the crime of public defence defined in and punishable under LAW ( Crim . DATE , ORG . crim . no . CARDINAL ) .","ORG of a text which is likely to incite any reader to judge favourably ORG leaders convicted of war crimes by ORG and constitutes an attempt to justify their crimes in part is a public defence of war crimes ( Crim . DATE , ORG . crim . no . CARDINAL ) .","A public defence of the crime of theft is made out where an article is published which , far from merely relating a criminal theft , presents it as a praiseworthy exploit and expresses the hope that the perpetrator will escape all punishment ( Crim . DATE , ORG . crim . no . CARDINAL ) .","The offence is made out where an apologia is presented in indirect form ( GPE , DATE , D. DATE . CARDINAL ) .","Lastly , it is ORG task to determine whether a text prosecuted under section CARDINAL(CARDINAL ) of the LAW of DATE partakes of the nature of a public defence of crime as defined therein ( Crim . DATE , ORG . crim . no . CARDINAL ) .","Law no . CARDINAL of DATE ( \u201c the loi Gayssot \u201d ) added to ORG a section CARDINAL bis making liable to DATE imprisonment and a fine of MONEY , or CARDINAL of those penalties only , those who \u201c deny the existence of CARDINAL or more crimes against humanity as defined in LAW annexed to the GPE agreement of CARDINAL DATE which have been committed either by the members of an organisation declared criminal pursuant to LAW or by a person found guilty of such crimes by a NORP or international court \u201d .","Section DATE of the Freedom of LAW , also inserted by the loi PERSON , provides : \u201c Any association which has been lawfully registered for DATE at the relevant time , and whose objects , according to its articles of association , include the defence of the moral interests and honour of the French Resistance or deportees , may exercise the rights conferred on civil parties in connection with public defence of war crimes , crimes against humanity or the crimes of collaboration with the enemy and in connection with the offence defined in section CARDINAL bis . \u201d","Articles DATE and CARDINAL of LAW , applied by ORG in its judgment of DATE convicting PERSON , provided at that time :","\u201c Any NORP citizen who colludes with a foreign power with a view to inciting it to engage in hostilities against GPE , or provides it with the necessary means , either by facilitating the penetration of foreign forces into NORP territory , or by undermining the loyalty of the army , navy or air force , or in any other manner , shall be guilty of treason and sentenced to death . \u201d","\u201c Any attempt to overthrow or change the government ... , or to incite citizens or inhabitants to take up arms against the imperial authority shall be punishable by deportation to a military fortress . \u201d"],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23384","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2003,"docname":"MEISCHBERGER v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG opened preliminary proceedings against GPE on suspicion of tax evasion .","On DATE ORG ( PERSON ) extended these proceedings to CARDINAL other suspects including the applicant . He was suspected of having , in DATE , as the representative of football player PERSON , incited GPE who was then the president of ORG to declare ORG salary at a relatively low level and to pay him MONEY ( ORG ) without declaring them , thus , avoiding salary tax to be paid . The applicant was represented by counsel in these and the subsequent proceedings .","Also on DATE , ORG requested ORG ) to investigate the case .","On DATE ORG , after having questioned the applicant as a suspect , submitted the TIME . Subsequently , after having carried out tax assessment proceedings concerning ORG , it submitted an interim report on its investigations .","On DATE , ORG submitted its final investigation report .","On DATE the investigating judge summoned the applicant as a suspect to appear on DATE for questioning . Upon the applicant \u2019s request the hearing was postponed to CARDINAL DATE . The applicant did not appear and the questioning took place DATE , on DATE .","Meanwhile , the investigating judge had requested ORG to question CARDINAL witnesses by way of judicial assistance .","On DATE ORG returned the file to ORG , which submitted it to ORG on DATE .","On DATE ORG requested ORG to submit further information , which it did on DATE .","On DATE the preliminary investigations against GPE were extended to include a further charge . GPE unsuccessfully appealed against this decision .","On DATE the indictment against the applicant and CARDINAL coaccused was preferred . The applicant was charged with aiding and abetting salary tax evasion contrary to sections CARDINAL and CARDINAL \u00a7 CARDINAL ( b ) of LAW ( Finanzstrafgesetz ) .","On DATE ORG ( Oberlandesgericht ) dismissed the applicant \u2019s objection ( PERSON ) against the indictment .","On DATE the presiding judge fixed CARDINAL May as date for the trial .","On DATE the applicant and CARDINAL of his co - accused requested that the proceedings be transferred to ORG . Thereupon , the trial scheduled for DATE was cancelled .","On DATE ORG ( Oberster Gerichtshof ) dismissed the request for transfer .","On DATE ORG held the trial against the applicant and his co - accused . The applicant pleaded not guilty . ORG submitted an expert opinion concerning questions of tax law and a number of witnesses were heard . Further , the applicant submitted an expert opinion on questions of tax law . At the close of the hearing the court convicted the applicant of aiding and abetting salary tax evasion contrary to sections CARDINAL and CARDINAL \u00a7 CARDINAL ( b ) of LAW and imposed a fine of ORG CARDINAL,CARDINAL on him , part of which was suspended on probation .","On DATE the applicant filed a request for rectification of the trial TIME .","On DATE ORG partly granted the applicant \u2019s request and made a number of additions to the minutes .","On DATE the written version of ORG judgment of DATE was served on the applicant .","On DATE the applicant filed a second request for rectification of the minutes , which remained unsuccessful .","On DATE the applicant filed a plea of nullity and an appeal .","On DATE the applicant , represented by a second counsel , supplemented his plea of nullity .","On DATE ORG held a hearing and dismissed the applicant \u2019s and his co - accused \u2019s pleas of nullity and their appeals .","ORG noted at the outset that CARDINAL of the applicant \u2019s coaccused had complained that section CARDINAL \u00a7 CARDINAL ( b ) of LAW referred to provisions of LAW DATE and was , thus , no longer applicable at the time of the offences , as meanwhile LAW DATE had entered into force . It observed that if this assertion was correct it would affect the convictions of all CARDINAL co - accused . However , ORG found that section CARDINAL \u00a7 CARDINAL ( b ) of LAW contained a so - called dynamic reference , i.e. at any given time it referred to LAW in the version in force at that time . Moreover , it had to be read in conjunction with section CARDINAL of LAW DATE according to which the provisions of that Act replaced the corresponding provisions of LAW DATE referred to in any other law . Thus , the legal basis for all co - accused \u2019s conviction was sufficiently clear .","ORG decision was served on the applicant on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115475","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2012,"docname":"OBRIST v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["NORP The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE am See .","ORG ( \u201c the Government \u201d ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant , a practising lawyer , was served with a decision dated DATE by the PERSON am ORG ( PERSON am See als PERSON ) informing him that proceedings had been initiated against him on suspicion of evasion of both income and turnover tax , through his submission of incorrect declarations of earnings in both DATE and DATE .","NORP The panel at ORG ( ORG beim PERSON ) held CARDINAL hearings , namely on DATE and DATE , DATE , DATE and DATE , of which only the first CARDINAL were attended by the applicant . The applicant was aware that his former employee , witness X , would be required to testify in the proceedings ; however QUANTITY hearings were postponed when witness X failed to appear . When PERSON finally appeared at the hearing of DATE it transpired that the applicant had relied on X \u2019s duty of confidentiality on account of his previous employment contract with the applicant , and X could not then testify .","The applicant did not receive a transcript of the hearing . The applicant had not lodged a request to receive the transcript until the hearing was under way .","On DATE the ORG panel found the applicant guilty of having evaded tax in the amount of CARDINAL euros ( ORG ) and ordered him to pay a fine of LAW , which would be replaced , in the event of default , by a prison term of DATE . The applicant was , however , acquitted of having evaded turnover tax in DATE . In fixing the amount of the fine , the panel considered the following to be mitigating factors : the applicant \u2019s lack of any prior convictions , his partial payment of the money owed , his confession in respect of part of the charges and the long period of time that had elapsed since the offences had been committed . It did not find any aggravating factors . The written decision of DATE was served on the applicant on DATE .","On DATE the applicant appealed to ORG ( PERSON ) , which delivered its decision orally after a hearing on DATE . ORG reduced the amount of the fine to LAW , with CARDINAL days\u2019 imprisonment in the event of default . Among the reasons given by ORG for the reduction of the fine was the applicant \u2019s low income , and it cited the long duration of the proceedings as a further mitigating factor in addition to those already put forward by the ORG panel . On the other hand , it considered that the fact that the applicant was a practising lawyer constituted an aggravating factor . The written decision was served on the applicant on DATE .","The applicant lodged a complaint with ORG ) on DATE against the decision of ORG . In a decision dated DATE ORG declined to consider the case for its lack of prospects of success and sent it to ORG ( Verwaltungsgerichtshof ) . The decision of ORG was served on the applicant on DATE .","The applicant filed additional observations in support of his complaint to ORG as requested . On DATE ORG dismissed the applicant \u2019s complaint as ill - founded . It held that ORG had acted appropriately in taking the unreasonably lengthy duration of the proceedings and the applicant \u2019s poor financial situation into consideration and had set the fine accordingly and in line with the domestic courts\u2019 jurisprudence . It also held that the applicant should have applied to receive a transcript of the hearing by the time it had started , as was provided for by law .","The decision was served on the applicant \u2019s counsel on CARDINAL DATE .","The jurisdiction of the tax authorities as regards proceedings relating to tax offences and the conduct of such proceedings are regulated in LAW ( Finanzstrafgesetz ) .","In accordance with section CARDINAL of the above - mentioned Act , in force at the relevant time , oral hearings are to be recorded by the court reporter . Its subsection CARDINAL provides that the transcript of the hearing is to be signed by the presiding member of the panel and the court reporter and then handed over to the defendant if he or she has lodged a prior request for it which has to be submitted , at the latest , just after the opening of the oral hearing .","Section CARDINAL \u00a7 CARDINAL of LAW provides , as a maximum penalty for the offence of tax evasion , for the imposition of a monetary fine of double the amount of tax evaded . It also provides for the imposition of a sentence of imprisonment for DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107110","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2011,"docname":"CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN - PIRIN AND OTHERS v. BULGARIA (No. 2)","importance":3,"conclusion":"No violation of Art. 11;No violation of Art. 14","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["NORP The applicant party , based in south - west GPE ( in an area known as the GPE region or the geographic region of LOC ) , was initially founded in DATE . It was declared unconstitutional by ORG on DATE and , as a result , dissolved .","The relevant developments up to DATE are described in detail in paragraphs QUANTITY of the ORG \u2019s judgment in the case of ORG PIRIN and Others v. GPE ( no . CARDINAL\/CARDINAL , DATE ) . In that judgment the ORG found that the applicant party \u2019s dissolution had been in breach of LAW ( ibid . , \u00a7 \u00a7 DATE ) .","After the ORG \u2019s judgment in the case of ORG PIRIN and Others ( cited above ) became final , on DATE , the applicant party \u2019s followers decided to apply for reregistration of the party , considering that this would be the best way of expunging the consequences of the violation of LAW ( since under NORP law there is no possibility of reopening proceedings before ORG ) .","On DATE , in line with the procedure envisaged in the DATE LAW ( see paragraph CARDINAL below ) , the party \u2019s founding committee published a founding declaration in GPE , a national newspaper , announcing that the party \u2019s founding meeting would be held on DATE .","The meeting took place as planned .","On DATE the applicant party \u2019s founders applied to ORG ( \u201c GPE \u0433\u0440\u0430\u0434\u0441\u043a\u0438 \u0441\u044a\u0434 \u201d ) for registration . They enclosed with the application the original of the founding declaration and its published copy , a certificate attesting to the uniqueness of the party \u2019s name , minutes of the founding meeting , signed by the meeting \u2019s chairman and minutetaker , a copy of the party \u2019s constitution , notarised signature samples of the members of the party \u2019s representative body , notarised declarations vouching for the authenticity of the lists of the party \u2019s founders and members and of its constitution , a sample of the party \u2019s seal , a list of the founders having signed membership declarations and copies of those declarations , and a list of the party \u2019s members ( CARDINAL individuals ) .","After the application was filed , a copy of the list of the party \u2019s founding members was apparently made available to the police and the prosecuting authorities in PERSON , ORG , PERSON , PERSON and some other localities in the GPE region . The police started systematically checking the names , the identities and the personal data of the individuals concerned . They also summoned a large number of those individuals , questioned them about their involvement with the party , and obtained from some of them declarations denying any connection with the applicant party . Following this operation , the police drew up a detailed report pointing to a number of alleged irregularities in the party \u2019s formation , such as failures to indicate the full names , full and correct addresses and personal identity numbers of the founders in some membership declarations , as well as the facts that some founders were living abroad , were members of other parties , or were minors or mentally ill . It also contained allegations , based on interviews with the individuals concerned and other inquiries by the police , that they had been put on the list without their knowledge or against the payment of money .","NORP The police additionally commissioned a graphology expert to check the texts of the membership declarations and the signatures featuring on them . On DATE the expert drew up a detailed report which said that the texts of a number of declarations had been filled in by the same people , but that the signatures were those of separate people ( all of whom he identified by name and citizen identification number ) . He also said that the signatures of CARDINAL individuals on the membership declarations differed from the corresponding signatures on the list of members .","The Sofia City Court examined the application at a hearing held on DATE . A prosecutor of ORG , who participated in the proceedings ex officio , produced the abovementioned reports , orders by the prosecuting authorities in PERSON and PERSON for the carrying out of preliminary inquiries , and sixtysix declarations obtained during the earlier police operation and purportedly establishing that the individuals who had made them had no links with the applicant party .","Some of the declarations contained the following statements : \u201c I am not and have never been a member of ORG PIRIN ; I made the decision to sign [ the membership declaration ] off the top of my head , I have not received anything in return , and I was not coerced into doing it \u201d ; \u201c I declare I have nothing to do with the GPE organisation ORG PIRIN . In no way do I support their separatist ideas . The fact that I signed the petition does not in any way mean that I support their ideas \u201d ; \u201c I declare that I have never been a member and am not a member of the illegal FAC \u201d .","Counsel for the party \u2019s founders requested an adjournment to acquaint himself with the newly presented evidence . The court turned the request down , allowing counsel to peruse the documents during TIME . When the hearing resumed , counsel for the party \u2019s founders objected to the admission of the CARDINAL reports in evidence and sought leave to present additional evidence : the membership applications of the persons whose names featured in the declarations presented by the prosecutor , and the missing personal identity numbers and addresses of the founders . The court denied leave , saying that the evidence sought to be adduced was not required under the DATE LAW ( see paragraphs DATE below ) . It also said that it would rule on the admissibility of the prosecutor \u2019s evidence in its judgment .","In a memorial filed after the hearing the prosecutor argued that the registration request should be rejected as , firstly , most of the founders had not personally filled in , but merely signed , their membership declarations , as shown by the expert report . Secondly , some of the members of the party \u2019s governing bodies featured in TIME of the founding meeting with CARDINAL names only , which made it difficult to identify them . Thirdly , there was no indication that a properly constituted ballot committee had duly checked the number of participants in the founding meeting . All of this showed that the founding meeting had been irregular and its resolutions void . Moreover , the sixtysix declarations showed that a number of the purported founders of the party were in fact no such thing . There were also a number of technical irregularities in the founding instruments . Lastly , there were indications that a number of purported founders had agreed to become members without really wanting to or understanding the implications . The party had therefore been founded in breach of , among other provisions , LAW , which enshrined negative freedom of association .","In a countermemorial counsel for the party \u2019s founders submitted , inter alia , that the facts the prosecutor sought to prove through the evidence he had adduced could be established only within the framework of separate contentious proceedings . Noncontentious registration proceedings were not a suitable forum for resolving such issues . Even if CARDINAL were to admit that there were certain irregularities in the membership declarations or the lists , this was not reason enough to hold that the number of founders had not in fact been attained . The sixtysix declarations presented by the prosecutor had to be discounted , inter alia because their sincerity was highly doubtful as they appeared to have been made under pressure from the police . That could be seen from the content of some of the declarations . Most of the irregularities noted in the police report were trivial or irrelevant and , in view of the limited number of individuals concerned \u2013 fiftyeight \u2013 did not cast doubt on the fact that the party had CARDINAL members , as required by law . Lastly , there was no indication that the party \u2019s formation had been in breach of LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) ; on the contrary , it was consonant with the ORG \u2019s judgment in the case of ORG PIRIN and Others ( cited above ) .","In a judgment of DATE the ORG refused to enter the applicant party in the register of political parties . It held as follows :","\u201c ... In an application ... of DATE the applicants PERSON , PERSON , PERSON and PERSON asked [ this court ] to enter in the register of political parties the newly founded party ORG \u2013 PIRIN . ...","The certificate attesting to the uniqueness of the name , [ issued by the registry of ORG ] , shows that it was issued for a political party named ORG ILINDEN \u2013 PARTY FOR ECONOMIC DEVELOPMENT AND INTEGRATION OF THE POPULATION .","A founding declaration has been produced , as required under section ORG ) of [ the DATE LAW ] . However , it can not be individualised , as there is no information in the file about the \u2018 initiative committee\u2019 of \u2018 CARDINAL enfranchised NORP ORG who have adopted it , as required under subsection CARDINAL of this section . The declaration says that they are \u2018 a group\u2019 but the evidence does not allow the court to ascertain their number . The declarations under section ORG ) of [ the same LAW ] do not contain information about the membership of the initiative committee , i.e. such declarations are lacking .","It can be seen from the enclosed minutes of DATE that on that date a founding meeting of the \u2018 political party PERSON was held . At the beginning of the meeting a ballot committee was elected , whose membership can not be ascertained , as the individuals mentioned feature with their first and family names only and there is no further information about them . In addition , there is no report by this committee relating its findings which are mentioned only in the minutes . The individualisation of persons with CARDINAL names only also affects the procedures for electing a Leadership , a ORG and an ORG . The [ citizen identification numbers ] of the members are not set out either .","An uncertified copy of the [ party \u2019s ] constitution has been produced . It is not clear whether this is the constitution that was adopted at the founding meeting or the constitution mentioned in the notarised declaration vouching for its authenticity .","No graphic depictions of the symbols of the party have been submitted . They have merely been described in clause CARDINAL of the constitution : \u2018 the party \u2019s flag is red , with a golden sun and a golden inscription \u2018 UMO Ilinden \u2013 PIRIN\u2019 , and the party \u2019s sign , comprising CARDINAL GPE mountain peaks with a sun rising between them , yellow with a blue background , with a white edelweiss at the foot of the hills .","Lists and declarations of the founding members , said by the applicants to be CARDINAL in number , have been presented , as required under section CARDINAL(CARDINAL)(CARDINAL ) and ( ORG ) in conjunction with LAW [ of the DATE LAW ] . The expert report presented by the [ ORG ] shows that CARDINAL of the declarations were filled in by the same QUANTITY that it is logical to conclude that CARDINAL founding members did not personally fill in their declarations , as required by law . The report was contested by counsel for the applicants . The court gives credence to this piece of evidence , as handwriting [ recognition ] demands special skills and , although it is clear to the naked eye that the declarations in volume CARDINAL , pages CARDINAL to CARDINAL [ of the case file ] have been filled in with the same handwriting , the court itself would not be able to make legally binding findings on this point , because this requires special qualifications and skills , which are in the experts\u2019 province . The court also gives credence to the expert report because it was made by ORG , bears the ORG \u2019s seal and the signature of Dr [ S.B. ] \u2013 head of the \u2018 GPE offences , photography and ORG department , and is thus an official document .","The court does not take into account the CARDINAL individual declarations presented by [ ORG ] , although they tend to show that the procedure for the formation of the party was not especially perfect . As correctly argued by counsel for the applicants in his brief , their number could not influence the number of the [ party \u2019s ] members required under section CARDINAL(CARDINAL)(CARDINAL ) of [ the DATE LAW ] .","The presented list of the party \u2019s members is inaccurate and incorrect : for instance , in volume CARDINAL of the evidence \u2013 pages CARDINAL , DATE , DATE , DATE and DATE the names of CARDINAL persons are listed , but without saying for what purpose their names and personal data are listed ; pages CARDINAL to CARDINAL , listing CARDINAL persons , are presented as an uncertified copy and do not make it clear for what purpose the names and personal data are given ; pages CARDINAL to CARDINAL and CARDINAL to CARDINAL , concerning CARDINAL people , are presented in an uncertified copy , on page CARDINAL there are CARDINAL persons with incomplete addresses , page CARDINAL features CARDINAL person identified by his first name only , without a [ citizen identification number ] and address , the same on pages CARDINAL and CARDINAL , and so on .","On the basis of these findings of fact the court makes the following findings of law :","The application was made under LAW ] in conjunction with section CARDINAL of [ the DATE LAW ] and has given rise to noncontentious proceedings . In such proceedings the registering court must check whether the application is formally valid and whether it is wellfounded .","Article CARDINAL of [ the Code ] governs the registration of all types of legal persons which by law are required to be registered by a court . According to section CARDINAL [ of the LAW ] , a political party is registered in the special register kept by ORG on the basis of a special application by its representative body . To determine whether the application is wellfounded , the registering court has to check whether the facts sought to be registered are indeed subject to registration and whether they have validly taken place .","The application is admissible , as it was filed by the members of the leadership of the political party ORG , who , according to clause CARDINAL ) of its constitution , represent it and are therefore the proper applicants .","The application is unfounded for the following reasons :","Section CARDINAL of [ the DATE LAW ] provides that each enfranchised NORP citizen may join the subscription , up until the founding meeting , by personally filling in and signing an individual membership declaration , based on a model adopted by the initiative committee . Through this declaration the citizens express their personal wish to be members of the political party , and declare that they accept its main principles and goals , as set out in its founding declaration , and that they are not members of another political party . The [ members of ] the initiative committee must also fill in such a declaration ...","For a valid membership to arise , there must be \u2018 an initiative of CARDINAL enfranchised NORP citizens who form an initiative ORG , which adopts the founding declaration to be signed by the founders . A founding declaration has been produced , but the available evidence does not show that the initiative committee consists of CARDINAL NORP citizens . The expression \u2018 group of ORG , used in the declaration ( page CARDINAL of the case file ) does not establish the characteristics of these individuals ( enfranchised NORP citizens ) and thus the quorum required under LAW ) of [ the DATE LAW ] ; moreover , section CARDINAL(CARDINAL ) [ of the same LAW ] expressly requires the initiative committee to fill in the declaration as well . This court does not find it established that this formality , which is a necessary prerequisite for membership , has been completed .","Even assuming that the founding declaration is in compliance with the law , the model declaration adopted by the initiative committee should still be filled in and signed personally DATE section CARDINAL(CARDINAL ) of [ the DATE LAW ] . CARDINAL of the submitted CARDINAL declarations have not been filled in personally , i.e. CARDINAL of the CARDINAL cumulative prerequisites , mandatory under the law , has not been complied with . The court would not comment on the authenticity of the signatures , about which there are doubts . The expert report says that there are differences between the signatures of the same persons in the declarations and in the lists featuring their names . This logically leads to the conclusion that there are CARDINAL proper founding declarations , in breach of the requirements of CARDINAL , subsections ( CARDINAL ) and ( ORG ) , of [ the DATE LAW ] .","The above shows that the founding meeting was attended by CARDINAL founders and that there has been no valid adoption of the [ party \u2019s ] constitution , as required under section CARDINAL(CARDINAL ) of the [ abovementioned ] Act . A quorum is established on the basis of these very founding declarations , as there is no legal requirement for each founder to personally fill in his name and personal data in the lists . It can be seen from the founding meeting \u2019s TIME that a ballot committee was elected , but it did not draw up a report ; TIME feature only the first and the family names of its members and for this reason they can not be identified , nor their responsibility engaged . This is why the court can not find that the statement in TIME that a quorum was attained does not need to be proven .","A quorum establishes lawful representation ; it is a prerequisite for a collective body validly to adopt resolutions . Each of the members is bound to all the others who have agreed to the [ party \u2019s ] constitution . This instrument binds the members of a legal person to act in a certain way , in pursuit of common goals . A legal person \u2019s resolutions are legal acts emanating from its bodies and entailing legal consequences for all members of a given community . A necessary prerequisite for the adoption of resolutions by collective bodies ( in the instant case , a political party ) is the quorum \u2013 the mandatory number of persons corresponding to the requirements of [ the DATE LAW ] \u2013 of NORP citizens who have capacity to act , who are not disenfranchised , and who have to be present to adopt a valid resolution . To be legitimate , resolutions of collective bodies have to comprise a certain number of identical acts by persons having capacity to act . The lack of the legally required quorum leads to resolutions which have not been adopted by consensus .","From a legal point of view , the entire procedure for duly forming a legal person has been vitiated .","The presence of this defect is in itself sufficient to deny the political party registration ; moreover , it can not be made good without calling and holding a new founding meeting .","To achieve precision and give full reasons for its ruling , this court considers that the remaining circumstances required for the lawful formation of a legal person must be analysed as well .","It is questionable whether the applicants have adduced in evidence a constitution . The enclosed copy of a constitution is not certified and there is no indication that it is indeed the authentic constitution of the party , as claimed in the notarised declaration of its ORG .","Section CARDINAL of the [ DATE ] LAW enumerates the minimum contents of each party \u2019s constitution : the name , the symbols , the seat , the goals , the rules governing its organisation and activities , the manner of becoming a member and ceasing to be one , the rights and the obligations of the members , and the manner in which the party is to be wound up . The party \u2019s name or acronym can not match those of another party . Nor is it possible to supplement these with words , letters , figures , numbers or other signs . LAW bars parties from using in their symbols the coat of arms or the flag of GPE or another ORG , or religious signs and images . In this connection , [ the court must ] verify compliance with both the [ DATE ] LAW and , mutatis mutandis , the applicable provisions of DATE ] FAC ( as stated in paragraph CARDINAL of the concluding provisions of the [ DATE ] LAW ) .","Concerning the name . A certificate attesting to the uniqueness of the name ORG ILINDEN \u2013 PARTY FOR ECONOMIC DEVELOPMENT AND INTEGRATION OF THE POPULATION has been presented . This name has been written this way only in the founding declaration published in the newspaper ORG and in clause CARDINAL of the constitution . Everywhere else , in all evidence , the name features as ORG PIRIN . Counsel for the applicants ... says on page CARDINAL of his brief that \u2018 there is a separate organisation ORG , which , although having similar ideas to those of ORG PIRIN , is a separate organisation\u2019 . It can be seen from clause CARDINAL of the constitution that the abbreviated version of the name will be written on the party \u2019s symbol \u2013 its flag \u2013 and will also appear on the party \u2019s seal . However , this name is contrary to section CARDINAL , subsections ( CARDINAL ) and ( CARDINAL ) , of the [ DATE ] ORG , which provides that \u2018 the name must clearly show the legal person \u2019s GPE and that it \u2018 must not be ORG . There is a discrepancy between the unique name featuring on ORG certificate and the name used in the evidence . The shortened name could confuse third parties , firstly because it concerns \u2018 a separate organisation ORG , secondly because the acronym ORG could be wrongly deciphered , and [ finally because ] a clear indication of the legal person \u2019s type is missing .","Concerning the symbols . The failure to produce the graphic depictions of the symbols described in clause CARDINAL of the constitution precludes a categorical conclusion about their conformity with the law . The seal , however , shows that the \u2018 GPE mentioned in clause CARDINAL is in fact the sixteenray stylised star known as ORG or ORG . It was discovered during archaeological excavations in the vicinity of the village of LOC ( formerly ORG ) in LOC and was depicted on the golden larnax found in DATE by Professor PERSON in a royal tomb dating from the time of LOC . Professor PERSON described the symbol as a \u2018 star\u2019 , a \u2018 PERSON or a \u2018 ORG . Following the discovery of the larnax ( box ) , ORG was widely adopted by NORP as a symbol of continuity between ancient NORP culture and modern GPE . Nowadays the symbol is popular in GPE . ORG on a blue background is commonly used as an official emblem of the CARDINAL peripheries , the prefectures and the municipalities of the region of GPE . Thus , the blue flag with ORG appeared in DATE . The symbol was also adopted by the large NORP diaspora , and later , after the disintegration of GPE , the independent GPE displayed ORG on its new flag . ORG became a source of controversies both within GPE and in its relations with neighbouring GPE . The flag \u2013 a red rectangle with the star in DATE became a major issue and the subject of extensive political discussions between the CARDINAL sides . NORP objections led to the flag being banned from use in a variety of international organisations , including ORG , the Olympic Games and the representations of GPE in GPE and GPE . In DATE ORG adopted a declaration designating ORG as an official NORP national symbol . In DATE GPE lodged a request with ORG ) for exclusive intellectual property rights to ORG .","From a legal standpoint , the symbols described in clause CARDINAL of the [ party \u2019s ] constitution are contrary to section CARDINAL of the [ DATE ] LAW .","Concerning the rules governing the organisation and the activities of the political party \u2013 the [ DATE LAW ] does not lay down detailed regulations for this type of legal person . This calls for subsidiary application of the [ DATE LAW ] . Political parties are subject to all rules in chapters I and II , concerning the types of legal persons , and , more specifically , part one , concerning associations , as well as in chapter III , concerning associations acting in the public interest . In assessing the rules governing the [ party \u2019s ] organisation and activities , the court must equally take into account the provisions of the LAW , which lay down guiding principles which are relevant for the specific areas of legal regulation or for the activities of those subject to the law .","Each corporate legal person has internal rules and they are CARDINAL of its essential characteristics . The enclosed constitution sets out the main structures of the party and their manner of operation . The supreme body is ORG , consisting of delegates ( clause CARDINAL ) , elected by the local sections ( clause CARDINAL ) ) . The calling of the meetings of this body is entrusted to ORG , which is in turn summoned by the Leadership or on the motion of CARDINAL of its members . The founders intentionally avoided a clear exposition of the manner in which ORG may be called , with a view to [ preventing ] disputes on this point . The question of delegates is not well regulated in terms of what the delegate quota is , or [ what part of ] the membership , nor which delegates have been duly elected . Nor is it clear on the basis of what principle ORG fixes the territory of each section \u2013 clause CARDINAL(CARDINAL ) of the constitution . This in practice prevents the court from exercising the judicial scrutiny , required by section CARDINAL(CARDINAL ) and ( CARDINAL ) of the [ DATE LAW ] , of the lawfulness of the supreme body \u2019s resolutions and their conformity with the [ party \u2019s ] constitution , pursuant to applications made under section CARDINAL(CARDINAL ) of the [ same LAW ] by the party \u2019s members and bodies , or by the public prosecutor . In such proceedings , the court must of necessity review the procedure for calling [ a meeting of the party \u2019s bodies ] and must determine its lawfulness .","The [ DATE ] ORG provides that there must be a possibility of calling [ a meeting of ] the governing body on the direct initiative of CARDINAL of the association \u2019s members . Where such a meeting has not been called , the Act lays down a judicial procedure for calling [ a meeting of this body ] pursuant to a written request by the members . The applicant party \u2019s constitution does not provide for such a possibility .","In his memorial counsel for the applicants says that \u2018 the registration of the party ORG would be in execution of a judgment of DATE of ORG , which became final on DATE and in which ORG analysed in detail all aspects of ORG PIRIN \u2019s activities prior to its dissolution and held that the party \u2019s dissolution had been unlawful as it was contrary to the essential principles of freedom of association\u2019 .","In their memorial the Sofia City Prosecutor \u2019s Office submit that the breaches of Articles CARDINAL \u00a7 DATE of the [ LAW ] have been unequivocally established ; those provisions lay down the principle that parties facilitate the formation and the expression of the political will of the citizens , who have the right to freely associate . The prosecuting authorities argue that the evidence shows the applicant party is not based on the free will of the citizens , but that some have been made members against their will or without being aware for what purpose they had filled in declarations \u2013 i.e. without information , and in this sense \u2018 the party in issue is not based on the free will of the citizens , nor does it form or express their political will\u2019 . In the Prosecutor \u2019s Office \u2019s view , the facts point to a breach of LAW ] which , when providing that everyone has the right to freedom of association , \u2018 undoubtedly intends this to depend on the free will of the individual , not on the decisions of others to include him in a specific association , in this case a political party\u2019 .","Article CARDINAL \u00a7 CARDINAL ( h ) of [ LAW ] provides that the judgments of ORG may constitute grounds for reopening domestic proceedings which have ended in a final judgment . However , it is clear that the situation in the case at hand does not fall within the ambit of that provision .","A fortiori , the violations found by the [ ORG Rights ] should not be allowed to occur in pending proceedings . Because the possibility that the final decision ( which is the ultimate goal ) of a set of proceedings will be set aside would render these proceedings meaningless .","The [ Convention ] has precedence over domestic ( national ) legislation that contravenes it \u2013 LAW of [ LAW ] . It should however not run counter to the present wording of [ the LAW ] . This is because LAW ( until DATE , \u00a7 CARDINAL ) of [ the LAW ] provides that the concluding of international treaties requiring amendments to [ LAW ] has to be preceded by such amendments . This follows from the reasons given by ORG in its decision no . CARDINAL of DATE .","ORG is not competent to give instructions to the GPE to take specific measures to comply with their obligations under [ the Convention ] \u2013 [ see ] the judgments in the cases of PERSON [ v. GPE , DATE , Series A no . CARDINAL ] , PERSON [ v. GPE , DATE , Series A no . CARDINAL ] , LOC [ v. GPE , DATE , Series A no . CARDINAL ] , etc .","The [ ORG ] judgments analyse a specific case ( whether specific facts amount to a violation of [ the Convention ] ) . For this reason , the court does not consider that those judgments may directly determine the outcome of a future case . The instant judgment is based on new facts and evidence , gathered in line with the requirements of [ DATE ] in the present proceedings . In other words , only the principles emerging from the [ ORG ] judgments are binding and the applicants can not request automatic registration merely because their fundamental rights have been restricted in the past , for which they have been awarded just satisfaction .","In conclusion , freedom of association is guaranteed by [ the LAW ] , but only if the legal requirements for association in its various forms \u2013 [ under the DATE ] LAW , [ the DATE ] LAW , [ and DATE ] LAW \u2013 have been complied with .","In view of the foregoing , the court finds that the political party has not been duly formed and for this reason its application for registration is to be denied as unfounded . \u201d","On DATE the applicants appealed to ORG ( \u201c NORP \u043a\u0430\u0441\u0430\u0446\u0438\u043e\u043d\u0435\u043d \u0441\u044a\u0434 \u201d ) . They argued , inter alia , that the admission of the expert report in evidence had been a serious breach of the rules of procedure , as any doubts about the authenticity or the probative value of the documents submitted in support of the registration request should have been resolved in separate contentious proceedings . ORG denial of leave to the applicants to adduce further evidence had also been in breach of the rules of procedure , had rendered the proceedings unfair , and had prevented them from proving they had complied with the requirements of the DATE LAW . These procedural errors had had a material impact on GPE findings of fact . Furthermore , that court \u2019s ruling that membership declarations must be filled in by the member in person was too rigid and unduly restrictive of the freedom of association of the party \u2019s founders .","After hearing the appeal on CARDINAL DATE , in a final judgment of CARDINAL DATE ( \u0440\u0435\u0448. \u2116 DATE \u043e\u0442 CARDINAL \u0444\u0435\u0432\u0440\u0443\u0430\u0440\u0438 DATE \u0433. \u043f\u043e \u0442. \u0434. \u2116 CARDINAL\/ DATE \u0433. , ORG , I \u0442. \u043e. ) ORG upheld the Sofia City Court \u2019s judgment in the following terms :","\u201c ... [ This court ] considers ... that ORG erred by admitting in evidence the expert report contested by the applicants . This report is in fact a private expert report and not an official document , as wrongly held by the [ ORG ] . This entailed a breach of the rules of evidence . ... However , that breach was not material , as it was not the only ground which led to the [ ORG ] refusal to register [ the party ] . That court found that the produced founding declaration \u2013 the first element of the complex of events leading to a political party \u2019s formation ... \u2013 was vitiated . The founding declaration can not be individualised , as it does not emanate from CARDINAL enfranchised NORP citizens , as required by the law ( section CARDINAL [ of the DATE LAW ] ) , but from a \u2018 group of ORG , and that \u2018 group of ORG can not be individualised , nor their number ascertained . There is no information in declarations under section ORG ) of [ the same LAW ] about the size and the membership of the initiative committee , because such declarations are lacking . Therefore , [ ORG ] decisive conclusion that the [ applicant party ] was not validly formed was based on lapses in the founding declaration presented , which fails to meet the imperative requirements of the law \u2013 sections CARDINAL ) and CARDINAL(CARDINAL)(CARDINAL ) [ of the DATE LAW ] . The incompleteness of the lists , noted by the [ GPE ] , was an additional and not a decisive ground for the refusal , and for this reason its being based on a breach of the rules of procedure is not material and does not vitiate the impugned judgment . By the same token , [ this court ] finds unavailing the arguments in the appeal about the rigid application of the rule in LAW [ of the LAW ] in relation to the handwritten declarations , which allegedly led to a restriction of the exercise of basic political rights . LAW requirement for a personally filled in and signed declaration does not restrict or discriminate against illiterate or blind individuals , as the law deals with such eventualities in LAW ] , which is also applicable in the instant proceedings ... If the law requires personally filled in and signed declarations LAW CARDINAL [ of the DATE LAW ] , the court is bound to apply it correctly and uniformly LAW CARDINAL \u00a7 CARDINAL [ of the above Code ] . [ ORG ] did precisely that ; therefore , the complaints that it erred in the application of LAW [ of LAW ] are unfounded .","The complaints that [ the ORG ] breached the rules of procedure by refusing the applicants leave to adduce further evidence rectifying the irregularities in the initially submitted documents , such as wrong or incomplete addresses , [ citizen identification numbers ] , [ and ] proof of the truth of circumstances required by law to be declared , are unfounded . It is true that the proceedings are noncontentious , and that the court has to check of its own motion whether the prerequisites for issuing the decision sought are in place . It is also true that the court may of its own motion gather evidence , and instruct the applicants to produce evidence in corroboration of their claims ( Article CARDINAL [ of LAW ] ) . However , the instant case concerns omissions of the founders , which may not be rectified subsequently .","The complaints that the impugned judgment was wrong on the merits are likewise unfounded . As already noted , the requirement of LAW [ of the DATE LAW ] that the declarations be personally filled in and signed is a requirement of the law , and the court is bound to apply the law as it is , correctly and uniformly LAW CARDINAL \u00a7 CARDINAL [ of the abovementioned Code ] . Regardless of what has been said above , [ this court ] reiterates that the decisive ground for refusing registration stems from the vitiated declaration of the founding committee , found defective partly because of the lack of declarations personally made by [ the party \u2019s ] members . The lack of such declarations and the vitiated lists and the ensuing lack of proof that the meeting had a quorum are thus not , in themselves , independent grounds for a refusal . The lack of graphic symbols and of a report of the ballot committee are not independent grounds for the refusal [ either ] \u2013 they were noted by [ ORG ] in addition to its decisive conclusion about the lack of a founding declaration . It is a separate issue that [ GPE ] found further omissions in the [ party \u2019s ] formation which were not mentioned or commented upon in the appeal .","In view of the foregoing and having dealt with all grounds of appeal [ raised by the applicants ] , [ this court ] finds that [ the Sofia City Court \u2019s ] conclusions that [ the applicant party ] was not validly formed and that its registration request was unfounded are correct . For this reason , the impugned judgment is to be upheld ... \u201d","On DATE , DATE after the ORG gave its judgment , there was a meeting in GPE between the NORP and NORP Ministers of Foreign Affairs . The news agencies reported that during the meeting GPE \u2019s then Foreign Minister , Mr GPE , said : \u201c [ T]he judgment of ORG in GPE does not entail the registration of a party . GPE was ordered to pay a fine ; it paid it and there are no further legal consequences . I believe that GPE has fully executed the prescriptions of ORG and there are no outstanding matters \u201d .","NORP In DATE the group of the Greens \/ European Free Alliance in ORG proposed an amendment to the report on GPE \u2019s accession to ORG , suggesting that it should include text calling on the NORP authorities \u201c to prevent any further obstruction to the registration of the political party of the ethnic NORP and to put an end to all forms of discrimination and harassment vis\u00e0vis that minority \u201d . A number of NORP observer members of ORG objected to that amendment . The political party Attack ( \u201c PERSON ) proposed a draft declaration , to be adopted by GPE \u2019s ORG and saying that the proposal of ORG NORP was a gross provocation and amounted to meddling in the country \u2019s internal affairs . Attack \u2019s leader , PERSON , was reported by the press to have said on DATE that he saw a problem in the fact that ORG registration request had been turned down by the courts on technical grounds . In his view , \u201c FAC ha[d ] to be rejected because of their separatism and anticonstitutional activities , not because of formalities \u201d .","In a statement published on DATE a member of GPE \u2019s ORG for ORG said that \u201c [ CARDINAL NORP court showed that no NORP parties may be registered in GPE . And in a country ruled by law judicial decisions have to be complied with . \u201d","NORP In DATE the second applicant , PERSON , and another member of the applicant party approached in turn the mayors of the towns of PERSON and PERSON with requests to rent a municipal hall in which to hold the party \u2019s founding meeting . After initially showing willingness to accommodate their request , in a letter of DATE the mayor of PERSON turned it down , saying that the hall in question did not meet the safety requirements set by the local fire department . The mayor of PERSON did not reply to the request .","The applicant party \u2019s founders then decided to hold the founding meeting outdoors . It took place on DATE in the area PERSON livadi , located in the territory of the municipality of PERSON . According to the applicants , it was attended by CARDINAL and eightyfive people , all of whom filled in declarations stating that they wished to join ORG .","On DATE the applicant party applied for registration to ORG . It presented the founding declaration , TIME of the founding meeting , the party \u2019s constitution , membership declarations signed by CARDINAL founding members , a list of those founding members , the list of CARDINAL members compiled in DATE ( see paragraph CARDINAL above ) , and a notarised declaration of the members of the party \u2019s management body to the effect that those lists were authentic . It also produced a copy of a letter of DATE from ORG to the permanent representative of GPE to ORG .","The Sofia City Court examined the application at a hearing held on DATE . The prosecutor who was present ex officio argued that the application should be refused because the party \u2019s goals were not those of a political party , but rather those of an ordinary association . He also said that the list of members was not authentic , as it was the same as the one presented in the previous reregistration proceedings , and that the minutes of the founding meeting had not been signed by all CARDINAL and eightyfive persons present .","In a judgment of CARDINAL DATE ORG refused the application in the following terms :","\u201c ... In the course of the proceedings the court noted that the applicants have not complied with the requirements of [ the DATE LAW , whose ] section CARDINAL provides that [ a political party ] can be founded on the initiative of CARDINAL enfranchised NORP citizens , who have to form an initiative committee . This [ committee ] has to adopt a written founding declaration . The founding declaration of DATE presented was signed by seventysix people , who did not however personally fill in and sign declarations under LAW [ of LAW ] . Moreover , according to section CARDINAL(CARDINAL ) [ of this LAW ] , the declaration has to be drawn up by the initiative committee . Since evidence to that effect has not been produced , the court can not be certain that this initiative committee has indeed held meetings and that such resolutions have in fact been adopted . TIME the founding meeting of DATE say that [ it ] was attended by CARDINAL adult NORP citizens who had personally filled in and signed declarations under section CARDINAL(CARDINAL ) [ of the above Act ] . The court fails to see how it was possible to obtain CARDINAL declarations by adult enfranchised NORP citizens in DATE ( that is , from the committee \u2019s declaration of DATE to CARDINAL DATE ) , so as to allow the holding of the founding meeting on DATE . It is true that section CARDINAL ) of [ the LAW ] provides that a political party is formed at a founding meeting held in the territory of GPE not DATE after the date on which the founding declaration has been adopted . However , in the instant case the court can not accept that CARDINAL people who had personally filled in their declarations under section CARDINAL(CARDINAL ) [ of the LAW ] were able to get together to hold a [ founding meeting ] in such a short time . Moreover , the minutes are signed by the president of the meeting and the minutetaker , whereas they should have been personally signed by all founders . As noted above , there is no evidence , under section ORG ) [ of the LAW ] , that [ the initiative committee ] has adopted a model declaration whereby each enfranchised NORP citizen may , by personally filling it in and signing it , join the party . This declaration has to be ready before the holding of the founding meeting . It should contain the information required under section CARDINAL(CARDINAL ) [ of the LAW ] . The presented lists of CARDINAL names , [ citizen identification numbers ] and addresses do not demonstrate to the court that the persons who feature thereon are members of the party , as the lists are not accompanied by personally filled in and signed declarations ( see the presented list of party founders ) . This court does not know whether these persons are aware that they are members of this party , or whether this is simply a list intending to prove before the court that the requirements of section PERSON ) [ of the LAW ] have been complied with . It must here be noted that [ the court ] received from [ ORG ] a letter informing it that [ the Ministry ] had received a letter from the head of the department for the execution of the judgments of ORG , PERSON , in which she asked whether it was possible for the court to accept , when examining the application for the [ applicant party \u2019s ] registration , the list of CARDINAL members presented in [ the previous registration proceedings ] in which the court , whose judgment was upheld by [ ORG ] , refused to register the party . This letter leads the court to conclude that the list produced in the instant proceedings is the same as the one presented [ in the previous registration proceedings ] . The use of the same list is in breach of LAW \u00a7 DATE of the [ LAW , which provide that ] parties facilitate the formation and expression of the political will of citizens , who may freely associate . Each application for inclusion in the register of political parties means , first , sharing the ideas of a group of enfranchised citizens who use democratic ways and means for attaining their political goals , set out in [ the political party \u2019s ] platform , and , second , that the [ party \u2019s ] formation , resolutions [ and ] activity should be in conformity with the law . The use of the same evidence in separate cases can not therefore be accepted by the court . The evidence presented in [ the previous registration proceedings ] can not be used in the instant proceedings .","The presented constitution [ of the party ] does not make clear its political goals and tasks . The ones mentioned in clauses CARDINAL and CARDINAL of the constitution do not characterise the organisation as a political party within the meaning of [ the DATE LAW ] and LAW ] . Political parties are ORG organisations through which they take part in the political life of GPE . The thing which sets them apart from other ORG associations is , according to LAW ] , that only they may pursue political goals or carry out political activities . These activities are defined by LAW of LAW ] and LAW of the DATE LAW ] as ones facilitating the formation of the ORG political will , which is the ORG will to participate in government . The carrying out of political activities is the main criterion for distinguishing [ political parties ] from other ORG associations . In this connection , it should be observed that in their constitutions political parties must clearly declare their goals and tasks and the ways of attaining them . The goals and tasks outlined in the [ applicant party \u2019s ] constitution are limited , have an optional character and do not comply with the abovementioned requirements . For the court , the goals set out in clause CARDINAL of the constitution are rather those of a nonprofit association ... , not of a political party ... It should [ also ] be noted that a political party bearing the same name and having the same goals was registered by ORG in a judgment of CARDINAL DATE ... After that [ , in DATE , ORG ] declared that party unconstitutional and it was struck out of the register . The [ ORG ] judgment shows that not only the name and the political goals of this party are identical to those stated by the applicants in the instant proceedings , but that the [ party \u2019s ] leadership consists of the same individuals . The court can not therefore be sure that , having the same political goals and leaders , the party will not meet the same fate , that is , be faced with an application [ for its banning ] to [ ORG ] . The court observes that the constitutionality of a political party must be judged on the basis of its activities . The political goals set out in clause CARDINAL of the constitution show that this is a party which is active in a specific part of the territory of GPE , which runs counter to both the [ DATE LAW ] and LAW ] ( see clause CARDINAL , points CARDINAL and CARDINAL of the [ party \u2019s ] constitution ) . Moreover , clause CARDINAL , point CARDINAL of the political goals of the party mentions good neighbourly relations in the LOC , in LOC and in all countries inhabited by ethnic NORP . There is no distinct NORP ethnos in GPE . The same goes for the party \u2019s name .","To enter a party in the register this court requires precise and clear political goals , as well as ways and means of attaining them . Moreover , [ a party ] must produce in evidence CARDINAL personally filled in and signed declarations under section CARDINAL ) [ of the DATE LAW ] fully to convince the court that these citizens are truly aware that they are members of a specific political party , that they share its political goals , express their personal will to be its members and declare that they accept the party \u2019s main principles and goals , as set out in its founding declaration , and that they are not members of another political party . These requirements apply without exception to all political parties .","For these reasons , the [ applicant party \u2019s ] application must be rejected and the court refuses to enter it in the special register . \u201d","On DATE the applicant party appealed to ORG . In a brief filed on DATE it argued , inter alia , that its registration would be consonant with the ORG \u2019s judgment in the case of ORG PIRIN and Others ( cited above ) . In that connection , it made reference to the relevant decisions of ORG .","After hearing the appeal on DATE , in a final judgment of CARDINAL DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 CARDINAL \u043e\u043a\u0442\u043e\u043c\u0432\u0440\u0438 DATE \u0433. \u043f\u043e \u0442. \u0434. \u2116 CARDINAL\/CARDINAL \u0433. , ORG , GPE \u0442. \u043e. ) ORG upheld the Sofia City Court \u2019s judgment in the following terms :","\u201c ... The impugned judgment is correct and is to be upheld .","Having reviewed the evidence in the case , [ this court ] finds that the refusal to register [ the applicant party ] was lawful . Section CARDINAL [ of the DATE LAW ] contains an exhaustive list of the documents which need to be filed with the court for the registration of an association of NORP citizens founded for the purpose of forming and expressing the people \u2019s political will through elections or through other democratic means \u2013 section CARDINAL [ of the LAW ] . [ This court ] finds that by presenting a list of CARDINAL members which was compiled during a previous founding meeting of [ the applicant party ] and was produced in [ the previous proceedings for its registration ] , the applicants in the instant case failed to comply with the requirements of section CARDINAL ) of [ the LAW ] . ... [ T]he reason why the law requires a minimum number of documents to be produced for the registration of a political party is to allow the registering court to check whether the procedure for its formation has been followed and whether it has the minimum number of members to guarantee that [ it can be ] a real player on the political scene , whose goals , as endorsed by its members , have public significance and warrant its existence on the country \u2019s political scene .","[ The case file of the previous registration proceedings ] has not been enclosed with the present case file , but the possible similarity or even match between the goals and the principles adopted at that previous founding meeting and those laid down in the party \u2019s constitution produced in the instant proceedings can not warrant the conclusion that the list produced in the course of [ the previous registration proceedings ] shows that the requisite number of members of the party seeking registration has really been attained . The underlying idea of the abovecited provision is doubtlessly to ensure that the required number of members who have declared their wish to join the effort to attain the goals set out in the party \u2019s constitution , adopted at the same founding meeting , has really been attained . From this vantage point , the list of members compiled during a previous founding of the party does not serve the law \u2019s purpose . The membership of an organisation , including a political one , is a dynamic value , which may increase but also decrease , due to changes in political views \u2013 something characteristic of every individual . This dynamic , which doubtlessly also reflects natural biological processes , requires [ the founders ] to establish before the registering court the requisite number of members at the time of the party \u2019s founding , or at the time when the application for its registration is lodged . It is obvious that in the instant case those requirements of section CARDINAL(CARDINAL)(CARDINAL ) have not been complied with owing to the lack of information about the number of persons who have expressed their wish to become members of [ the applicant party and work ] for the attainment of its goals , as agreed at the founding meeting held on DATE and laid down in the constitution adopted by the founders .","The rule in section CARDINAL of [ the DATE LAW ] is imperative . Failure to comply with even CARDINAL of its requirements constitutes sufficient grounds to refuse registration , as the impugned judgment did . Since this court shares the final conclusions at which [ that judgment ] arrived , it considers that it should be upheld . \u201d","On DATE ORG PIRIN held a national conference . On DATE the second , third , fourth , fifth and sixth applicants lodged with ORG a request for amendments in the party \u2019s registration . The request was based on the premise that , since this ORG had found the dissolution of the party in DATE to be in breach of LAW , the party had never ceased to exist .","The Sofia City Court held a hearing on DATE . On DATE , apparently treating the request as a normal registration request , it turned it down . It found that the party \u2019s founders had not enclosed all the necessary documents ( such as a founding declaration , individual membership declarations personally signed by the founders , and notarised samples of the signatures of the party \u2019s representatives ) showing that the party had been duly formed . It went on to say that this ORG \u2019s judgment in the case of ORG \u2013 ORG and Others ( cited above ) had no bearing on the registration proceedings and could not serve as grounds for finding that the party had never ceased to exist .","The second applicant , PERSON , appealed on points of law . He argued that ORG had erred by not giving ORG PIRIN the opportunity to produce all the elements missing from its founding process . The court \u2019s failure to do so , coupled with its ensuing refusal to register the party , had been in breach of GPE \u2019s obligation to abide by this ORG \u2019s judgment in ORG PIRIN and Others ( cited above ) and to heed the instructions given in that connection by ORG .","After hearing the appeal on CARDINAL DATE , in a final judgment of CARDINAL DATE ( \u0440\u0435\u0448. \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 DATE \u0433. , ORG , I \u0442. \u043e. ) ORG upheld the Sofia City Court \u2019s judgment in the following terms :","\u201c The subjective registration right is the legally guaranteed possibility to request facts which are subject to registration ( and the changes in such facts ) to be entered in the relevant register . Concrete rights and duties in that respect can arise and evolve only in the manner envisaged by the special statutes governing such matters . In the case at hand , the [ DATE ] LAW lays down certain requirements which need to be met before an application to register a political party can succeed . CARDINAL of those requirements is the obligation under LAW [ of the LAW ] for the applicants to enclose certain documents with their application . Those documents must be produced in order to allow the registering court to ascertain whether the application is admissible and wellfounded . It is the ORG duty to produce them , and they directly relate to the ascertaining of a series of legal acts leading to the formation of a political party . Therefore , the making of an irregular application \u2013 such irregularity stemming from a failure to produce the enclosures required by law \u2013 is tantamount to a failure to comply with the duty to make a proper application . Moreover , some of the irregularities can not be rectified in the manner and timelimits envisaged by LAW [ of the DATE Code of Civil Procedure ] , because they are indicative of such failures of the [ party \u2019s ] founders as make the application for its registration illfounded . Although noncontentious proceedings follow the general rules of civil procedure , their specificity requires the court to assess whether the irregularities [ in the application ] can be rectified , and thus make the application successful , because the law requires all prerequisites for the registration of a political party to be in place . The lack of even CARDINAL such prerequisite makes the application illfounded . In the case at hand , the [ lower ] court found that the imperative requirements of the law had not been complied with ( there is no founding declaration ; that declaration has not been published in a DATE newspaper [ , as required by ] section CARDINAL the [ DATE ] LAW ; the mandatory requirements of sections CARDINAL and CARDINAL [ of that Act ] have not been complied with ) . Although in their appeal the applicants said that they were ready to adduce fresh evidence , the above defects can not be rectified in the manner and within the timelimit envisaged by Article CARDINAL [ of the DATE Code of Civil Procedure ] , because they presuppose the occurring of concrete facts at the time when the party was being founded . They thus relate to the application \u2019s wellfoundedness , not to its admissibility . Besides , [ Mr ] PERSON \u2019s assertion at the hearing on DATE that the applicants do not have any documents other than those already produced leads directly to the conclusion that the appeal is illfounded , because it conflicts with the applicants\u2019 position before the [ lower ] court , where they had to make the requisite procedural steps . Therefore , the [ lower ] court has not breached the rules of procedure and has correctly assessed the application \u2019s wellfoundedness based on the enclosures submitted by the applicants .","The appellants argued that the above - mentioned breach of the rules of procedure was directly related to the NORP authorities\u2019 obligation , in cooperation with ORG , to determine appropriate ways of \u2018 LOC the political party \u2018 FAC . They maintained that ORG was bound to execute ORG of DATE . As that judgment had still not been executed , it was necessary to take individual measures allowing the political party to be registered . The applicants\u2019 position was that ORG refusal [ to register the party ] was in breach of ORG and the mandatory instructions of ORG .","The complaint is illfounded .","ORG judgment of CARDINAL DATE related , as correctly pointed out by the [ ORG ] , to a breach of LAW flowing from ORG finding in its judgment of CARDINAL DATE that the political party ORG was unconstitutional . That has no bearing on the case at hand , because the refusal to register [ the party ] was based on its failure to comply with the formal requirements of the [ DATE ] LAW . Those requirements apply to all , not only to the appellant . Therefore , the [ lower ] court was right to conclude that ORG Rights\u2019 judgment is irrelevant to the registration request in the case at hand . CARDINAL of the main principles of the law of registration , flowing directly from LAW , is the principle of lawfulness . It requires the authorities examining registration requests to comply strictly with their duties , and requires those who lodge registration requests to comply strictly with theirs . The application of that principle is guaranteed by the strict rules governing the facts which need to be registered , the manner of their registration , the possibility of appealing against the rulings of the registering authorities and the sanctions for failures to comply with registration obligations . Therefore , the ones responsible for complying with registration obligations are the applicants , regardless of their identity , and not other persons , and their failure to do so leads to a refusal to register the requested fact . \u201d","During its ORG meeting , on CARDINAL and DATE , ORG noted the continuing problems with the registration of the party and invited its ORG to \u201c examine , in cooperation with the NORP authorities and the applicants , the avenues at the applicants\u2019 disposal with a view to obtaining [ the party \u2019s ] registration \u201d ( ORG ) .","During its CARDINAL meeting , held on DATE , ORG \u201c took note of the complaints of the applicants in the case of ORG PIRIN concerning the outcome of the new proceedings concerning the registration of the political party \u201d , \u201c noted the different problems still raised by the issue of the individual measures in the latter case \u201d and \u201c invited the NORP authorities in cooperation with the ORG to examine possible solutions to these problems within the framework of the NORP legal order \u201d ( ORG \/ PERSON ) .","ORG concluded the examination of application no . CARDINAL\/CARDINAL ( United Macedonian Organisation Ilinden \u2013 PIRIN and Others v. GPE ) during its QUANTITY meeting , on DATE , by adopting Resolution CM \/ ResDH(CARDINAL)CARDINAL , the relevant parts of which read :","\u201c ... Recalling that the violation of the ORG found by ORG in this case concerns an infringement of the freedom of association of an organisation which aims to achieve \u2018 the recognition of the NORP minority in ORG due to the dissolution in DATE of its political party , based on considerations of national security ( alleged separatist ideas ) when the applicants had not hinted at any intention to use violence or other undemocratic means to achieve their aims ( violation of LAW ) ( see details in Appendix ) ;","Recalling that a finding of violations by the ORG requires , over and above the payment of just satisfaction awarded by the ORG in its judgments , the adoption by the respondent state , where appropriate :","\u2013 of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and","\u2013 of general measures preventing similar violations ;","Recalling that the obligation of the respondent state regarding the individual measures in this case , implies allowing the applicants to ask for a new registration of their political party in the framework of proceedings which are in accordance with the requirements of the LAW and in particular of LAW ( for further details see the information document ORG \/ DH(CARDINAL)CARDINAL ) ;","Recalling that following the ORG \u2019s judgment , the applicants requested on CARDINAL occasions before the domestic courts the registration of their political party and that ORG followed the proceedings in question up to their outcome ;","Recalling that it has expressed concerns more particularly as regard the fact that the decision of the firstinstance court on the second request for registration of the applicants\u2019 political party reiterated grounds incriminated by the ORG ;","Stressing in this respect that the judicial decisions relating to the applicants\u2019 third request for registration do not reiterate such grounds and are exclusively based on the noncompliance with the law of the material acts for the constitution of the party and of the related documents to be submitted ;","Having noted with satisfaction the declaration of the government according to which it \u2018 sees no obstacle to the applicants\u2019 obtaining the registration of their organisation as a political party on the condition that the requirements of the LAW of the state and the formal requirements of LAW are met , without any grounds such as those incriminated by ORG being opposed to the applicants\u2019 ;","Underlining in this context that the [ DATE ] LAW , as modified in DATE , reduced from CARDINAL the level of members required to form a political party and that this new level seems , in addition , likely to resolve the problems encountered by the applicants in forming their party in conformity of the requirement of the DATE LAW ;","Having considered that in view of the above considerations , it seems that the applicants can at present apply for the registration of their party in proceedings which are in conformity with LAW ;","Having examined also the general measures and in particular the awarenessraising measures taken by the NORP authorities to ensure that applicable domestic law is interpreted in conformity with the LAW and thus to prevent violations similar to that found by ORG ( see details in Appendix ) ;","Noting that the government undertook to continue to organise awarenessraising activities in the field of application of LAW , including visits to ORG of judges in particular from the competent courts ;","Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgment ( see details in Appendix ) ,","DECLARES , having examined the measures taken by the respondent state ( see Appendix ) , that it has exercised its functions under LAW in this case and","DECIDES to close the examination of this case . \u201d","NORP In an appendix to ORG described the developments set out in paragraphs PERSON above , the amendment to the DATE LAW reducing the membership requirement for a party from CARDINAL to CARDINAL members ( see paragraph CARDINAL below ) , and the ORG \u2019s declaration cited in the ORG . The appendix also contained a description of the general measures taken by the ORG . Those consisted in the publication and the dissemination of the ORG \u2019s judgment and of a manual describing the ORG \u2019s case - law in the area of freedom of association , and in the organising of several training sessions for judges and prosecutors on that topic .","The relevant provisions of the DATE LAW read as follows :","\u201c GPE is a ORG governed by the rule of law . It shall be governed in accordance with the LAW and the laws of the country . \u201d","\u201c International treaties which have been ratified in accordance with the constitutionally established procedure and promulgated , and have entered into force with respect to GPE , are part of the country \u2019s domestic law . They shall have precedence over any provisions of domestic legislation which contravene them . \u201d","\u201c CARDINAL . NORP Parties shall facilitate the formation of the ORG political will . The manner of forming and dissolving political parties , as well as the conditions pertaining to their activity , shall be established by law .","No political parties shall be formed on an ethnic , racial , or religious basis , nor parties which seek to accede to power by force . \u201d","\u201c CARDINAL . Citizens\u2019 associations shall serve to further and safeguard their interests .","Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties . \u201d","\u201c No one may be persecuted or restricted in his rights because of his views , nor detained or forced to provide information about his or another \u2019s convictions . \u201d","\u201c CARDINAL . Citizens may freely associate .","Organisations whose activities are directed against the country \u2019s sovereignty or territorial integrity or against the nation \u2019s unity , or which aim at stirring up racial , national , ethnic or religious hatred , or at violating the rights and freedoms of others , as well as organisations creating secret or paramilitary structures , or which seek to attain their goals through violence , shall be prohibited .","The law shall specify which organisations are subject to registration , the manner of their dissolution , as well as their relations with the ORG . \u201d","The DATE LAW ( \u201c ORG \u0437\u0430 \u043f\u043e\u043b\u0438\u0442\u0438\u0447\u0435\u0441\u043a\u0438\u0442\u0435 \u043f\u0430\u0440\u0442\u0438\u0438 \u201d ) , which came into force on DATE and superseded the DATE LAW , which had in turn superseded the DATE LAW , regulates the formation , registration , organisation , activities and dissolution of political parties ( section CARDINAL ) .","The procedure for the formation of a party is laid down in sections CARDINAL of the LAW . A party is formed on the initiative of CARDINAL enfranchised NORP citizens ( section CARDINAL(CARDINAL ) ) . They must set up an initiative committee , which adopts a written founding declaration setting out the party \u2019s main goals and principles ( section PERSON ) and ( CARDINAL ) ) . The committee then publishes this declaration in CARDINAL national DATE newspaper and opens a subscription for founding members ( section CARDINAL(CARDINAL ) ) . Every enfranchised NORP citizen may join the subscription by personally filling in and signing an individual membership declaration whose model must be approved by the initiative committee ( section CARDINAL(CARDINAL ) ) . In these membership declarations ( not to be confused with the founding declaration ) prospective members express their wish to become members of the party and declare that they accept its main goals and principles , as set out in the founding declaration ( section CARDINAL(CARDINAL ) ) . They must also declare that they are not members of another party ( ibid . ) , as an individual can not participate in the formation of a party if he or she is already a member of another party ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) . The initiative committee \u2019s members must also fill in and sign such membership declarations ( section PERSON ) ) . After the subscription is closed , the party is founded at a founding meeting , which must be held in the territory of GPE not DATE after the adoption of the founding declaration ( section CARDINAL(CARDINAL ) ) . The meeting must be attended by CARDINAL NORP citizens who have signed a membership declaration ( section CARDINAL(CARDINAL ) ) . The founding meeting adopts the party \u2019s constitution and elects its managing and controlling bodies ( section CARDINAL ) and ( CARDINAL ) ) .","The party \u2019s constitution must set out , along with other matters , its name and symbols ; its goals and the ways of attaining them ; its managing and controlling bodies , the manner of calling meetings of these bodies ; their appointment , removal and powers ; the way to become a member and cease to be CARDINAL ; and the PERSON rights and obligations ( section CARDINAL(CARDINAL ) ) . The party \u2019s name and symbols can not be identical to those of another party , even if words , letters , figures , numbers or other signs have been added to them ( section GPE ) ) . Also , the parties\u2019 symbols can not contain or resemble the coat of arms or the flag of GPE or of another State , or religious signs or representations ( section CARDINAL ) ) .","Not DATE after the founding meeting the party has to apply to be entered in a special register kept by ORG . The application must be made by the party \u2019s managing and representative body ( section CARDINAL ) and ( CARDINAL ) ) . With the application must be enclosed ( a ) the founding declaration ; ( b ) the minutes of the founding meeting ; ( c ) the party \u2019s constitution ; ( d ) a list containing the CARDINAL names , citizen identification numbers , permanent addresses and handwritten signatures of CARDINAL founding members ; ( e ) the individual membership declarations ; ( f ) notarised samples of the signatures of the party \u2019s representatives ; ( g ) a list containing the CARDINAL names , citizen identification numbers and permanent addresses of CARDINAL members ; ( h ) a notarised declaration by the party \u2019s leadership to the effect that the constitution and the CARDINAL lists are authentic ; and ( i ) a certificate of uniqueness of the party \u2019s name , to be obtained form ORG registry ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) .","The Sofia City Court has to examine the application not DATE after it has been lodged , at a public hearing attended by the applicants and a public prosecutor . It must then rule within DATE , by means of a judgment ( section DATE ) . This judgment is subject to appeal before ORG ( section CARDINAL ) ) , which has to dispose of the appeal within DATE , by means of a final judgment ( section CARDINAL(CARDINAL ) ) . The party is entered in the register DATE after the judgment allowing its registration has become final ( section DATE ) ) . At that point it becomes a legal person ( section CARDINAL ) ) . The judgment allowing registration is published in ORG ( section CARDINAL ) .","In DATE an amendment to section CARDINAL ) reduced to CARDINAL and a CARDINAL the number of people who have to feature on the list of members that needs to be enclosed with the application for registration ( see paragraph CARDINAL ( g ) above ) .","Paragraph CARDINAL of the amendment \u2019s transitional and concluding provisions provided that until DATE the prosecuting authorities had to conduct inquiries and seek the dissolution of any political party which did not meet the requirements of section CARDINAL ) of the LAW . Under that section , a political party has to be dissolved if ( a ) its activities systematically breach the LAW \u2019s requirements , ( b ) its activities are contrary to the LAW , ( c ) for DATE after its latest registration it has not taken part in parliamentary , presidential or local elections , or ( d ) if it has failed , for DATE , to submit the requisite financial reports to ORG .","The DATE LAW ( \u201c ORG \u0437\u0430 \u044e\u0440\u0438\u0434\u0438\u0447\u0435\u0441\u043a\u0438\u0442\u0435 \u043b\u0438\u0446\u0430 \u0441 \u043d\u0435\u0441\u0442\u043e\u043f\u0430\u043d\u0441\u043a\u0430 \u0446\u0435\u043b \u201d ) , which entered into force on DATE and superseded parts of the DATE LAW ( \u201c ORG \u0437\u0430 \u043b\u0438\u0446\u0430\u0442\u0430 \u0438 \u0441\u0435\u043c\u0435\u0439\u0441\u0442\u0432\u043e\u0442\u043e \u201d ) , and whose provisions govern all matters not covered by the DATE LAW ( paragraph CARDINAL of the transitional and concluding provisions of this LAW ) , regulates the formation , registration , organisation , activities and winding up of nonprofit legal persons , such as associations and foundations ( section CARDINAL ) . Its LAW I lays down certain general rules and principles applying to all types of nonprofit legal persons , its LAW prescribes more detailed rules for associations , and its LAW deals with nonprofit legal persons acting in the public interest .","According to section CARDINAL(CARDINAL ) and ( CARDINAL ) , a legal person \u2019s name has to clearly designate its type , and must not be misleading or contrary to good morals .","Section CARDINAL(CARDINAL ) provides that an association \u2019s general meeting may be called at the request of onethird of the members , if need be through an application to the competent court .","The general meeting \u2019s resolutions are subject to judicial review for lawfulness and conformity with the association \u2019s rules ( section CARDINAL(CARDINAL ) ) . Applications for judicial review may be lodged by any member or body of the association , or by the public prosecutor ( section CARDINAL(CARDINAL ) ) .","At the relevant time LAW , along with some statutes , regulated the procedure for entering legal persons , such as companies , associations , foundations and political parties , in special registers kept by the regional courts and ORG . Such registration was made after noncontentious proceedings instituted on the application of the representatives of the legal person concerned ( Articles CARDINAL and CARDINAL ) . In the course of such proceedings the court could gather evidence of its own motion and take into account facts not mentioned by the applicant ( Articles CARDINAL and CARDINAL ) . On DATE the Code was superseded by the DATE Code of Civil Procedure .","ORG ( \u201c the Venice Commission \u201d ) made the following recommendations in its LAW and explanatory report on legislation on political parties : some specific issues ( ORG , DATE ) :","\u201c B. Registration as a necessary step for recognition of an association as a political party , for a party \u2019s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under LAW and CARDINAL of LAW . Any requirements in relation to registration , however , must be such as are \u2018 necessary in a democratic society\u2019 and proportionate to the objective sought to be achieved by the measures in question . Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership . ...","...","a. Registration of political parties","... many countries view registration as a necessary step for recognition of an association as a political party , for participation in general elections or for public financing . This practice \u2013 as ORG has stated before in its LAW even if it were regarded as a restriction of the right to freedom of association and freedom of expression , would not per se amount to a violation of rights protected under Articles CARDINAL of LAW . The requirements for registration , however , differ from CARDINAL country to another . Registration may be considered as a measure to inform the authorities about the establishment of the party as well as about its intention to participate in elections and , as a consequence , benefit from advantages given to political parties as a specific type of association . Farreaching requirements , however , can raise the threshold for registration to an unreasonable level , which may be inconsistent with the Convention . Any provisions in relation to registration must be such as are necessary in a NORP society and proportionate to the object sought to be achieved by the measures in question . \u201d","A report adopted by ORG on DATE on the establishment , organisation and activities of political parties on the basis of the replies to a questionnaire ( ORG ) reads , in so far as relevant :","\u201c CARDINAL . Some countries impose on political parties an obligation to go through a registration process . Almost all countries mentioned in the first group in paragraph CARDINAL have to go through a registration process or at least through deposition of their articles of association with the competent authorities of their country . This process is justified by the need of formal recognition of an association as a political party . Some of these additional requirements can differ from CARDINAL country to another :","a ) convocation of the assembly on the establishment of the party ( GPE , GPE , GPE , GPE and GPE and GPE ) ;","b ) establishing articles of association \/ charter ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ;","c ) drafting of a programme ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ;","d ) minimum membership ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ;","e ) election of the board \/ presidency \/ permanent committee ( GPE , GPE , GPE , GPE , GPE and GPE ) ;","f ) permanent address of its offices \/ leaders ( GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ;","g ) principles of internal organisation ( GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ;","h ) payment of the registration fee ( GPE and GPE ) ;","i ) NORP signatures attesting certain territorial representation ( GPE , GPE , GPE and GPE ) ; and","j ) publication of information on the establishment of the party in mass media ( GPE ) .","After these requirements are met , a competent body ( Ministry of Justice , for example ) proceeds with official registration . In the case of such countries as , for example , GPE and GPE , the LAW ( articles of association ) are just submitted to the competent authority in order to be added to a special ORG register .","...","NORP Most countries consider registration as a necessary step for recognition of an association as a political formation . However , some countries , as it has been already mentioned , consider that State registration is a pure formality . For example , in GPE , ORG can not refuse the deposition or a registration of the LAW of a party .","There is another criteria of distinction as to the status given to a party . In some countries registration of such associations is required in order to give a full legal personality to such association . If such registration is not carried out , a party can not have bank accounts , receive founding from public funds or hold property ( GPE , GPE , GPE and GPE ) .","Certain States have a stricter rule as to the registration process . For example , in GPE , current legislation on political parties imposes a duty on political parties to provide ORG with its membership lists DATE for having its registration reeffected . \u201d","The explanatory report to LAW No . CARDINAL ( CETS No . CARDINAL ) reads , in so far as relevant :","\u201c CARDINAL . Rapid and full execution of the ORG \u2019s judgments is vital . It is even more important in cases concerning structural problems , so as to ensure that the ORG is not swamped with repetitive applications . For this reason , ever since the GPE ministerial conference of CARDINAL and CARDINAL DATE ( Resolution I ) , it has been considered essential to strengthen the means given in this context to ORG . The Parties to the Convention have a collective duty to preserve the ORG \u2019s authority DATE and thus the Convention system \u2019s credibility and effectiveness DATE whenever ORG considers that CARDINAL of the High Contracting Parties refuses , expressly or through its conduct , to comply with the ORG \u2019s final judgment in a case to which it is party .","Paragraphs CARDINAL and CARDINAL of Article CARDINAL accordingly empower ORG to bring infringement proceedings in the ORG ( which shall sit as a Grand Chamber \u2013 see new DATE , paragraph b ) , having first served the state concerned with notice to comply . ORG decision to do so requires a qualified majority of CARDINAL of the representatives entitled to sit on the ORG . This infringement procedure does not aim to reopen the question of violation , already decided in the ORG \u2019s first judgment . Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article CARDINAL , paragraph CARDINAL . It is felt that the political pressure exerted by proceedings for noncompliance in FAC and by the latter \u2019s judgment should suffice to secure execution of the ORG \u2019s initial judgment by the state concerned .","ORG should bring infringement proceedings only in exceptional circumstances . None the less , it appeared necessary to give ORG , as the competent organ for supervising execution of the ORG \u2019s judgments , a wider range of means of pressure to secure execution of judgments . Currently the ultimate measure available to ORG is recourse to LAW ( suspension of voting rights in ORG , or even expulsion from the Organisation ) . This is an extreme measure , which would prove counterproductive in most cases ; indeed ORG which finds itself in the situation foreseen in paragraph CARDINAL of Article CARDINAL continues to need , far more than others , the discipline of ORG . The new LAW therefore adds further possibilities of bringing pressure to bear to the existing ones . The procedure \u2019s mere existence , and the threat of using it , should act as an effective new incentive to execute the ORG \u2019s judgments . It is foreseen that the outcome of infringement proceedings would be expressed in a judgment of the ORG . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["11","14"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68715","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2005,"docname":"CASE OF NEVMERZHITSKY v. UKRAINE","importance":1,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)","judges":"Zoryana Bortnovska","text":["The applicant , PERSON , is a NORP national , who was born in GPE in DATE and currently resides there . He was formerly the manager of a branch of ORG in GPE . The applicant was represented by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE police officers seized MONEY ( USD ) that had been stored by the applicant on the premises of ORG in readiness for their sale to a customer , ORG","On DATE ORG of the main department of ORG of GPE in GPE ( \u201c the ORG \u201d ) began a criminal investigation into allegations of unlawful currency transactions that had allegedly been committed by the applicant .","On DATE ORG initiated criminal proceedings in respect of the involvement of the applicant and other suspects in the case . On the same date an investigator from the division decided that the applicant should be detained as a suspect pending a decision concerning the appropriate preventive measure . He was accordingly placed in custody DATE .","On DATE an investigator from ORG charged the applicant with , inter alia , engaging in unlawful currency transactions ( LAW of the NORP LAW DATE \u2013 hereafter the \u201c UCC \u201d ) , theft of substantial amounts of currency ( Article CARDINAL of the ORG ) and tax evasion ( Article CARDINAL - CARDINAL \u00a7 CARDINAL of the ORG ) .","On DATE and CARDINAL DATE the applicant was additionally charged with abuse of power by an official ( Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG ) and fraud and forgery committed by an official ( ORG CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 \u00a7 CARDINAL of the ORG ) .","DATE and DATE the applicant lodged applications with ORG for a medical examination and challenged the appointment of the investigator . On DATE ORG of GPE instructed the investigator to arrange for the applicant 's medical examination . The doctors who examined the applicant recommended that he should receive medical treatment in a facility run by ORG due to various diseases that he suffered from , including the skin infections of scabies and eczema .","On DATE the investigator charged the applicant with offences under Articles CARDINAL \u00a7 CARDINAL , CARDINAL - CARDINAL , CARDINAL - CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG .","On DATE the investigation into the case was completed and the accused , including the applicant , were allowed to inspect the case - file . On DATE the accused finished their inspection .","On DATE the criminal case - file was sent to ORG for approval of the indictment .","On DATE the prosecution service transmitted the case to ORG ( the \u201c ORG \u201d ) .","On DATE the Moskovsky ORG of Kyiv rejected as unsubstantiated the applicant 's complaint against the investigator of ORG , in which he had claimed that the investigator had acted unlawfully and requested that criminal proceedings be instituted against him for abuse of power .","On DATE ORG remitted the case to the prosecution service for an additional investigation ( \u0434\u043e\u0434\u0430\u0442\u043a\u043e\u0432\u0435 \u0440\u043e\u0437\u0441\u043b\u0456\u0434\u0443\u0432\u0430\u043d\u043d\u044f ) . On DATE it lodged a separate application ( \u043e\u043a\u0440\u0435\u043c\u0435 \u043f\u043e\u0434\u0430\u043d\u043d\u044f ) for an order setting aside ORG ruling . On DATE ORG of GPE granted the application in part . Although it held that the case should be remitted for an additional investigation , it specified that certain matters did not have to be investigated further since the information previously obtained was sufficient .","On DATE the prosecution service finished a supplementary investigation into the case and the applicant was allowed to inspect the file .","On DATE the additional investigation was completed and the applicant was allowed to familiarise himself with the material in the case - file .","On DATE the preliminary investigation was reopened in order to conduct additional investigative acts .","On DATE ORG ruled that the investigation into the charges of unlawful currency transactions should be dropped as criminal liability for unlawful currency transactions had been abolished and LAW of the ORG repealed .","On DATE ORG convicted the applicant of repeated financial fraud , acts in preparation of financial fraud , forgery committed by an official , aggravated forgery and abuse of power . It sentenced him to DATE and DATE imprisonment , and ordered the confiscation of all his personal property . It acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales , tax evasion and aggravated fictitious trading . On the basis of the Amnesty Law of DATE , and because the applicant had already been detained for DATE , DATE and DATE , ORG decided to exempt him from serving the sentence . None of the parties appealed to ORG .","On DATE an investigator of ORG decided that the applicant should be temporarily detained as a suspect ( \u0437\u0430\u0442\u0440\u0438\u043c\u0430\u043d\u0438\u0439 \u0432 \u044f\u043a\u043e\u0441\u0442\u0456 \u043f\u0456\u0434\u043e\u0437\u0440\u044e\u0432\u0430\u043d\u043e\u0433\u043e ) in accordance with LAW ( \u201c the ORG \u201d ) . He was accordingly placed in custody DATE .","On DATE the Prosecutor of GPE sanctioned a warrant issued by the investigator authorising the applicant 's arrest ( \u0441\u0430\u043d\u043a\u0446\u0456\u044e \u043d\u0430 \u0430\u0440\u0435\u0448\u0442 ) as a preventive measure pending trial ( LAW ORG ) .","On DATE the applicant applied to the Moskovsky ORG of GPE for orders to quash the warrant and release him . On CARDINAL DATE ORG rejected the applicant 's claims as unsubstantiated . It also held that the applicant 's detention was lawful .","From DATE until DATE the applicant was detained in ORG of GPE ( SIZO No . CARDINAL of GPE ) .","The duration of the investigation and the applicant 's detention were extended on successive occasions : to DATE on CARDINAL DATE by ORG , to DATE on DATE by the Deputy Prosecutor General of GPE , to DATE on DATE by the Deputy Prosecutor General of GPE and to DATE on DATE by ORG .","On DATE the investigator informed the applicant that the preventive measure of detention could be replaced by release on bail . The Prosecutor of Kyiv informed the applicant by a letter of DATE that bail had been fixed in the sum of CARDINAL NORP hryvnas ( ORG ) .","On DATE that amount was deposited in the account of ORG of ORG in GPE by ORG ( the surety and the applicant 's former employer ) . On DATE the ORG returned the sum and refused to release the applicant on bail .","On DATE ORG extended the period of the investigation and the applicant 's detention for DATE ( until DATE ) , bringing the total period to DATE .","On DATE ORG refused to change the preventive measure , requiring the applicant to remain in custody . On DATE ORG upheld that decision .","The applicant was detained during the prosecution 's further investigation from DATE .","On DATE , owing to the expiry of the maximum statutory period of detention , ORG decided to release the applicant on his undertaking not to abscond . The applicant was released on DATE .","The applicant went on hunger strike on DATE , consuming only water . On DATE the applicant 's medical condition was examined and , following an acetone analysis of his urine on DATE , he was subjected to force - feeding as of DATE . The applicant suspended his hunger strike on DATE , only to resume it again in DATE .","On DATE the doctor of the detention facility issued a statement that the applicant was receiving medical treatment and , because of his continuing hunger strike , was being force - fed .","The Government mentioned that DATE and DATE the applicant was examined by doctors on CARDINAL occasions . However , they made no reference to any medical examinations of the applicant in the period from CARDINAL DATE to DATE ( see paragraph CARDINAL below ) .","On DATE the doctor of the detention centre diagnosed the applicant as having allergic dermatitis ( \u0430\u043b\u0435\u0440\u0433\u0456\u0439\u043d\u0438\u0439 \u0434\u0435\u0440\u043c\u0430\u0442\u0438\u0442 ) .","On DATE the doctor of the detention centre , after examining the applicant , diagnosed him as also suffering from streptococcal impetigo ( \u0441\u0442\u0440\u0435\u043f\u0442\u043e\u0434\u0435\u0440\u043c\u0456\u044f ) and chronic cholecystitis ( \u0445\u0440\u043e\u043d\u0456\u0447\u043d\u0438\u0439 \u0445\u043e\u043b\u0435\u0446\u0438\u0441\u0442\u0438\u0442 ) .","On DATE the forensic medical examination No . CARDINAL carried out by ORG concluded that the applicant suffered from microbic eczema , chronic cholecystitis and neurocirculatory dystonia . It recommended that the applicant undergo specialised medical treatment for eczema as an inpatient .","On DATE the doctor of ORG of GPE , Dr PERSON , found that the applicant had contracted disseminated microbic eczema ( \u0440\u043e\u0437\u043f\u043e\u0432\u0441\u044e\u0434\u0436\u0435\u043d\u0430 \u043c\u0456\u043a\u0440\u043e\u0431\u043d\u0430 \u0435\u043a\u0437\u0435\u043c\u0430 ) . He also recommended that the applicant undergo medical treatment as an inpatient .","On DATE the Deputy Head of ORG requested that the applicant be admitted to ORG for further treatment of his skin diseases as from DATE .","On DATE the applicant was taken to the hospital and , after his preliminary medical examination there , he was diagnosed as suffering from scabies ( \u0447\u0435\u0441\u043e\u0442\u043a\u0430 ) and pyodermatitis ( \u043f\u0456\u043e\u0434\u0435\u0440\u043c\u0430\u0442\u0438\u0442 ) . The hospital recommended that the applicant be returned to GPE No . CARDINAL for further medical treatment for scabies .","On DATE the forensic medical examination No . CARDINAL carried out by ORG concluded that the applicant had suffered from disseminated microbic eczema from DATE to DATE . It also found that the applicant suffered from scabies and that this disease could be treated in GPE No . CARDINAL if there were no appropriate conditions for his treatment as an inpatient . On DATE the investigator of ORG rejected as unsubstantiated the applicant 's request for medical treatment as an inpatient .","The applicant underwent medical treatment for scabies on DATE in the medical unit of the detention centre .","The applicant continued his hunger strike between DATE and DATE . During this period he was examined by a doctor on CARDINAL occasions .","According to the applicant , his last hunger strike lasted from CARDINAL DATE to DATE . In accordance with the timetable of medical examinations provided by the Government , no medical examinations of the applicant were performed DATE and DATE ( see paragraph CARDINAL above ) .","Following his release on DATE , the applicant was admitted to ORG from DATE until DATE . He subsequently continued to receive medical treatment under the general supervision of a psychiatrist .","On DATE the applicant 's sister , on behalf of the applicant , lodged complaints with ORG seeking to establish that it was unconstitutional to hold the applicant in custody after the maximum statutory term of detention had expired . She also petitioned ORG for a ruling that LAW ORG , which allowed suspects to be detained while the case was being investigated , was unconstitutional . On DATE the Registrar of ORG rejected his complaints , as the court had no jurisdiction to consider them .","The relevant provisions of the LAW read as follows :","\u201c Every person has the right to freedom and personal inviolability .","No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law . \u201d","\u201c Human and citizens ' rights and freedoms are protected by the court .","Everyone is guaranteed the right to challenge in a court the decisions , actions or omissions of bodies exercising ORG power , local self - governing bodies , officials or officers .","... After exhausting all domestic legal remedies , everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant .","Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . \u201d","\u201c CARDINAL . The existing procedure for the arrest , custody and detention of persons suspected of committing an offence , and the procedure for carrying out an inspection and search of a person 's home and other property , shall be retained for DATE after the entry into force of the present LAW . \u201d","The relevant provisions of the ORG read as follows :","\u201c Preventive measures shall be imposed on a suspect , accused , defendant , or convicted person in order to prevent his attempts to abscond from an inquiry , investigation or the court , to obstruct the establishment of the truth in a criminal case or to pursue criminal activities , and in order to ensure the execution of procedural decisions .","Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect , accused , defendant or convicted person will attempt to abscond from investigation and the court , or if he fails to comply with procedural decisions , or obstructs the establishment of the truth in the case or pursues criminal activities .","If there are insufficient grounds for the imposition of preventive measures , the suspect , accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer , investigator , prosecutor or the court , and shall also undertake to notify them of any change in his place of residence .","If a preventive measure is applicable to a suspect , he shall be charged within DATE of the imposition of the measure . In the event that the indictment is not issued within that time , the preventive measure shall be annulled . \u201d","\u201c The preventive measures are as follows :","( CARDINAL ) a written undertaking not to abscond ;","( CARDINAL ) a personal surety ;","( CARDINAL ) the surety of a public organisation or labour collective ;","( DATE ) NORP bail ;","( CARDINAL ) NORP remand in custody ;","( CARDINAL ) NORP supervision by the command of a military unit .","As a temporary preventive measure , a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles CARDINAL , CARDINAL and CARDINAL of this Code . \u201d","\u201c In resolving the issue of imposing a preventive measure , in addition to the circumstances specified in LAW , such circumstances as the gravity of the alleged crime , the person 's age , state of health , family and financial status , type of activity , place of residence and other circumstances relating to the person , shall be taken into consideration . \u201d","The terms for remand in custody during the investigation of criminal offences shall not be DATE . These terms can be extended to DATE by district , city or military prosecutors , prosecutors of the fleet or command garrison , or prosecutors of the same rank , if it is not possible to terminate the criminal investigation , and in the absence of any grounds to change the preventive measure . Further extension of this term to DATE from the moment of arrest shall only be effected if the case is exceptionally complex , by ORG , regional prosecutors , GPE prosecutors , military prosecutors of the district or fleet , or prosecutors equal to them in rank .","Further periods of remand in custody can be extended for DATE by ORG , and DATE by ORG .","After that , no further extensions of detention on remand are allowed . The accused must then be immediately released .","If it is impossible to terminate the investigation within these remand periods and there are no grounds to change the preventive measure , ORG or his Deputy shall be entitled to remit the case to the court in that part which relates to accusations which could be proved . In relation to the incomplete investigation , the case shall be divided into separate proceedings and terminated in accordance with the general rules .","The materials of the terminated part of the criminal case shall be provided to the accused and his representative for examination not DATE before the expiry of the remand period , established by paragraph CARDINAL of this Article .","The time taken by the accused and his representative to familiarise themselves with the materials in the case shall not be taken into account in calculating the overall term of remand in custody .","\u201c Detention during pre - trial investigations shall not exceed DATE . In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part CARDINAL of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure , the period of detention may be extended :","( CARDINAL ) to DATE - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre - trial investigation or by the prosecutor who , or a judge of the court which , issued the order for the application of the preventive measure ;","( CARDINAL ) to DATE - in cases of serious and especially serious crimes , on an application approved by the Deputy Prosecutor General of GPE , ORG , the prosecutor of the regions , the prosecutor of the cities of GPE and PERSON and the prosecutors of equal rank , or submitted by the same prosecutor for consideration to a judge of an appellate court ;","( CARDINAL ) to DATE - in particularly complex cases involving especially serious crimes , on an application by ORG GPE or his Deputy , or submitted by the same prosecutor for consideration to a judge of ORG of GPE ;","In every case in which it is impossible to complete the investigation in full within the periods specified in Parts CARDINAL or Two of this Article , the prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court . In such an event , the part of the case concerning uninvestigated crimes or criminal offences shall , in accordance with the requirements of LAW , be severed into a separate set of proceedings and completed under the general procedure .","The period of detention during the investigation shall be calculated from the moment the detention is ordered and , if the detention was preceded by time spent in police custody , from the moment of arrest . The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in - patient in a psychiatric medical institution of any type . In the event of repeated detention orders being made against a person in the same case , or in a case joined to it or severed from it , or of new charges being brought , previous periods of detention shall be taken into account when calculating the length of the detention .","The period of detention during pre - trial investigations shall expire on DATE the court receives the case - file ; however , the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case - file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure .","In the event that the case is withdrawn from the court by a prosecutor on the basis of LAW , time shall start to run again on DATE the case is received by the prosecutor .","In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed DATE . The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court , in accordance with the procedure and within the time - limit prescribed by Part CARDINAL of this Article .","Save where the period has been extended pursuant to the procedure established by this LAW , in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts CARDINAL of this Article , the body of inquiry , the investigator , or the prosecutor shall be obliged to release the person from custody without delay .","Governors of pre - trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts CARDINAL , CARDINAL and Six of this Article expires . They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation ( Article CARDINAL in the wording of PERSON No . DATE of DATE , as amended by ORG . CARDINAL of DATE , and CARDINAL of DATE ; in the wording of PERSON No . CARDINAL of DATE which entered into force on DATE ) . \u201d","\u201c After deciding that the evidence collected in the case is sufficient for an indictment , and after complying with the terms of LAW ( familiarisation of the victim , civil plaintiff and civil respondent with the materials in the case file ) , the investigator is obliged to announce to the accused that the investigation in his case has ended and that he has a right to familiarise himself with all of the materials in the case file personally and\/or with the assistance of an advocate , and that he can lodge a motion to initiate an additional preliminary investigation . The investigator is obliged to explain to the accused his right to lodge petition for his case at first instance to be heard by a single judge or by a court composed of CARDINAL judges .","If the accused has not shown any interest in familiarising himself with the materials of the case - file with the participation of the representative , he shall be personally provided with all of the materials in the case file ( for familiarisation ) . In the course of this familiarisation process , the accused has the right to make extracts ( to copy in writing ) and to lodge motions . The investigator must allow all accused persons , even if there are several in CARDINAL case , to familiarise themselves with all the case - file materials .","The announcement of the termination of the criminal investigation and the authorisation for the accused to familiarise himself with the case - file shall be mentioned in the verbatim record .","The accused and his representative shall not be limited in the time which they require to familiarise themselves with the materials in the case file . However , if the accused and his representative intentionally delay this process , the investigator has the right , by it 's a reasoned resolution , to fix a deadline for the accused to complete the familiarisation exercise . This resolution shall be approved by the prosecutor . \u201d","\u201c The detainee , his defender or legal representative may appeal against the prosecutor 's arrest warrant to the relevant district ( city ) court ...","The appeal may be lodged directly with the court or through the administration of the pre - trial detention centre , which must send the appeal to the relevant court within TIME of its receipt . \u201d","( Article CARDINAL was excluded from the ORG on the basis of LAW ( LAW of DATE . )","The relevant provisions of ORG read as follows :","\u201c ... in accordance with LAW , the subject of appeal shall only be the arrest warrant issued by the prosecutor for detention of the suspect or accused , and not the decision of the investigator or the body of inquiry concerning the applicable preventive measure of taking into custody ; nor the decision of the court ( judge ) to detain the defendant . \u201d","( This resolution was annulled on the basis of the new ORG of ORG of GPE of DATE on the courts ' practice of applying the preventive measure of detention and the prolongation of detention at the stages of the inquiry and pre - trial investigation . )","The relevant extracts from the reservation of GPE provide as follows :","\u201c ... CARDINAL . NORP The provisions of LAW of DATE shall apply in the part that does not contravene paragraph CARDINAL of LAW of the Transitional Provisions of the LAW of GPE and ORG CARDINAL and CARDINAL of the Code of Criminal Procedure of GPE concerning the detention of a person and the issue of an arrest warrant by a public prosecutor .","Such reservations shall be in force until appropriate amendments to LAW are introduced or until the adoption of LAW , but not DATE ...","The provisions of LAW of DATE shall apply in the part that does not contravene Articles DATE , CARDINAL DATE of LAW concerning the imposition of arrest as a disciplinary sanction . \u201d","The relevant extracts from LAW provide as follows :","\u201c CARDINAL . The existing procedure for the arrest , custody and detention of persons suspected of committing an offence , and the procedure for carrying out an inspection and search of a person 's home and other property , shall be retained for DATE after the entry into force of the present LAW . \u201d","The relevant extracts from LAW ORG that regulate detention by a body of inquiry of a person suspected of committing an offence provide as follows :","\u201c A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed , subject to the existence of CARDINAL of the following grounds :","NORP if the person is discovered whilst committing an offence or immediately after committing one ;","NORP if eye - witnesses , including victims , directly identify this person as the one who committed the offence ;","NORP if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home .","If there are other data which constitute grounds for suspecting the person of committing an offence , he may be detained only if he attempts to escape , or if he has no permanent place of residence , or if the identity of the suspect has not been established .","For each case of detention of a person suspected of committing an offence , the body of inquiry shall be required to draw up a record setting out the grounds , the reasons , DATE , time , DATE , the place of detention , the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time , in accordance with the procedure provided for in Part CARDINAL of Article CARDINAL of the present Code . The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within TIME and , on his request , give him the documents constituting the grounds for detention . The record of detention shall be signed by the person who drew it up and by the detained person . Within TIME of receipt of the notification of detention , the public prosecutor shall authorise the person detained to be taken into custody or order his release .","The body of inquiry shall inform the suspected person 's family of his detention if his place of residence is known . \u201d","The relevant extracts from LAW ORG , which set out the specific duties of a public prosecutor when issuing a warrant for arrest , provide as follows :","\u201c The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law . When deciding whether to issue a warrant for arrest , the public prosecutor shall be required to study conscientiously all the relevant documents and , where necessary , question the suspect or accused personally . In the case of a suspect or accused who has not attained the age of majority , such questioning shall be mandatory .","The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of GPE , the public prosecutors of GPE , the regional prosecutors , the prosecutors of the cities of GPE and PERSON , and other equal - ranking prosecutors . The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding CARDINAL , unless otherwise stipulated in a special order of ORG . \u201d","The relevant extracts from Chapters CARDINAL of the first DATE report provide as follows :","\u201c ... The situation in investigation wards is perhaps the worst , [ due to ] their overcrowding and abnormal conditions of custody . The number of suspects in the cells of investigation wards far exceeds normal sanitary standards . By DATE GPE 's investigation wards had available space for CARDINAL detainees , but in reality held CARDINAL .","The gravest situation was registered in GPE where CARDINAL detainees were in custody without sufficient space ; in GPE and ORG the same circumstances affected CARDINAL detainees ( in each city ) , CARDINAL in ORG , CARDINAL in GPE , and CARDINAL in GPE and GPE ( each ) . CARDINAL of detainees do not have personal bunks and are forced to take it in turns to sleep . This has been causing conflicts that are accompanied by injuries , physical reprisals , violence and other illegal actions .","... The unsanitary conditions in pre - trial detention facilities contribute to the spread of epidemic and parasitic diseases , such as tuberculosis , pediculosis and dysentery . In DATE they caused the death of CARDINAL detainees , or twice as many as in DATE . Inadequate nutrition is the cause of chronic gastro - intestinal disturbances and dystrophy .","In the pre - trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in penitentiary institutions . In most cases the suspects are denied the opportunity to meet with relatives , to work and provide assistance to families ; they are actually isolated from the outside world and have no access to the DATE press and other mass media .","... The inspections of the Commissioner proved that on average people are held [ in detention ] for DATE while courts delay processing their cases for unjustifiably long periods . DATE the statutory time for considering criminal cases is violated in relation to CARDINAL people . Of the persons who are detained in custody to date PERCENT ( or CARDINAL ) are detained under the courts ' responsibility ; in some detention centres this category of detainees exceeds PERCENT , although DATE they accounted for PERCENT . ...","Above everything else , this is caused by the unjustifiably widespread practice of pre - trial detention on formal grounds . Of the CARDINAL arrested persons CARDINAL ( PERCENT ) were released from investigation wards in DATE , and of these every seventh arrested person was given a non - custodial sentence . Under the transitional provisions of the LAW , there still exists the procedure of arresting and taking people into custody on the basis of the sanction issued by the public prosecutor . The introduction of judicial control over detention and prolongation of the period of custody has had no practical impact ...","Some legislation which is inconsistent with the provisions of the LAW and international human - rights standards sets unjustifiably long terms of pre - trial detention . Owing to strictly ministerial interests , these terms were increased to DATE , from which is excluded the time taken by detainees and their lawyers to familiarise themselves with the case - file . The lack of an organised system of pre - trial investigation infringes the terms of detention of CARDINAL of persons .","The legislation in force does not establish any restrictions whatsoever as to the maximum period of detention once the case is referred for consideration on the merits . For this reason defendants have to wait for DATE and sometimes DATE for a hearing or completion of the judicial examination . \u201d","The second DATE report of DATE confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention , severe overcrowding , lack of adequate medical treatment and assistance , inadequate nourishment , and the inadequate financing of the needs of the pre - trial detention facilities . The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases . It mentioned for instance that in DATE PERCENT of the necessary food supplies were financed from the ORG budget ( PERCENT in DATE ) , and PERCENT of the medical supplies ( PERCENT in DATE ) . The average medical expenditure per person was UAH CARDINAL.CARDINAL in DATE ( compared to the required amount of UAH CARDINAL ) and UAH DATE ( compared to the required amount of UAH CARDINAL ) .","The relevant provisions of the Decree of DATE read as follows :","\u201c ... CARDINAL . Upon discovery of the detainee 's refusal to take food , the head of the institution or the person acting on his behalf must interview the detainee within TIME in order to document the reasons for the refusal . He shall also inform the authorities responsible for this person 's detention and the prosecutor supervising the execution of the judicial decisions in criminal cases and , in the event of serious grounds for the refusal to eat , shall take appropriate measures to satisfy the lawful demands of the detainee .","... CARDINAL . Within TIME of the refusal of the detainee to take food , the head of the institution or the person acting on his behalf shall order the placement of the detainee in a separate cell , where he \/ she shall generally be held in isolation from other detainees and be kept under constant supervision .","... CARDINAL . The detainee shall be provided with breakfast , lunch and supper in accordance with the envisaged timetable and the established nutritional norms . In the event of a refusal to eat , it shall be removed after TIME ; this shall be noted in the record of the food taken by the detainee .","Within the time - period established by the administration of the institution , and taking into account the particular circumstances , but not DATE from the time of the refusal to take food , the person shall undergo a compulsory medical examination during which a doctor shall explain the negative consequences of the hunger strike for the detainee 's health . On - going and emergency medical treatment shall be provided to the detainee unless there is a need to admit him \/ her as an in - patient ...","Where the refusal to take food is not a result of a disease or illness , the representatives of the institution must continuously explain to the person the harmful effect that a lack of food inflicts on the body .","The force - feeding of a detainee on hunger strike shall be a measure of last resort aimed at preserving life and may only be used where the educational work and other measures of influence have had no effect on the detainee , and his \/ her further refusals to take food are endangering his \/ her life .","The decision to force - feed shall be adopted by the head of the institution , or the person acting on his behalf , on the basis of a written report by the medical commission establishing a life - threatening decline in the state of health of a detainee on hunger strike ...","The prosecutor supervising the lawfulness of the execution of judgments in criminal cases shall be informed about the decision to force - feed the detainee .","The detention centre 's doctor shall determine the length of time necessary to force - feed the detainee , taking into account his \/ her general state of health .","The doctor shall decide on the content of the food in accordance with the DATE food ration composed of different products .","The doctor shall make a note in the medical file of the detainee on hunger strike at the time of the force - feeding , mentioning the date , components and quantity of the food ; the surname and rank of the person who administered the force - feeding shall also be noted ...","NORP The procedure for force - feeding a detainee refusing to take food","ORG - feeding shall be administered in the presence of CARDINAL of the administrators of the institution , the doctor , a member of the medical staff and the necessary number of junior inspectors .","Before beginning the force - feeding , the doctor shall explain to the detainee the risks that threaten his \/ her health and the necessity of taking food .","If the detainee refuses the force - feeding , he \/ she can be handcuffed , and the junior inspectors shall hold him in such a position as is necessary for this procedure .","The force - feeding shall be conducted by a member of the medical staff under the doctor 's supervision , taking into account all the measures necessary to avoid possible injuries and accidents . In the course of this procedure the mouth of the detainee shall be opened and held open by a mouth - widener ( \u0440\u043e\u0442\u043e\u0440\u043e\u0437\u0448\u0438\u0440\u044e\u0432\u0430\u0447 ) .","A medical tube with a funnel on the free end , cooled down after having been boiled , but soft , has to be placed through the mouth opening and the pharynx into the alimentary canal ( oesophagus ) . In the course of this procedure the doctor has to make sure that the tube does not get into the trachea . If the position of the tube is correct the member of the medical staff shall pour into the can a small quantity of cooled boiled water and then the food .","The medical staff must have with them the necessary medical supplies and medicines for providing emergency medical aid in the event of injuries that might occur in the course of force - feeding .","If the state of health of the detainee on hunger strike improves , the force - feeding shall be suspended and this shall be noted in the medical file of the detainee ; a reasoned conclusion shall be drawn up by a doctor . \u201d","The relevant extracts from ORG read as follows :","\u201c ... Discipline and punishment","Instruments of restraint","The use of chains and irons shall be prohibited . Handcuffs , restraintjackets and other body restraints shall never be applied as a punishment . They shall not be used except in the following circumstances :","... b. on medical grounds , by direction and under the supervision of the medical officer ;","c. by order of the director , if other methods of control fail , in order to protect a prisoner from selfinjury , ...","NORP The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation . Such instruments must be applied no longer than is strictly necessary . \u201d","The relevant extracts from ORG provide as follows :","\u201c ... Referring to the specific declarations of ORG ( PERSON ) concerning medical ethics , in particular the Declaration of Tokyo ( DATE ) , the Declaration of GPE on hunger strikers ( DATE ) and the Statement on body searches of prisoners ( DATE ) ; ...","C. Patient 's consent and confidentiality ...","... The indication for any medication should be explained to the inmates , together with any possible side effects likely to be experienced by them .","Informed consent should be obtained in ... situations when medical duties and security requirements may not coincide , for example refusal of treatment or refusal of food .","Any derogation from the principle of freedom of consent should be based upon law and be guided by the same principles which are applicable to the population as a whole . ...","It should also imply [ that a doctor must be ] advising the prison management on matters concerned with nutrition or the environment within which the prisoners are required to live , as well as in respect of hygiene and sanitation .","PERSON of treatment , hunger strike","In the case of a refusal of treatment , the doctor should request a written statement signed by the patient in the presence of a witness . The doctor should give the patient full information as to the likely benefits of medication , possible therapeutic alternatives , and warn him \/ her about risks associated with his \/ her refusal . It should be ensured that the patient has a full understanding of his \/ her situation . ...","The clinical assessment of a hunger striker should be carried out only with the express permission of the patient , unless he or she suffers from serious mental disorders which require the transfer to a psychiatric service .","Hunger strikers should be given an objective explanation of the harmful effects of their action upon their physical well - being , so that they understand the dangers of prolonged hunger striking .","If , in the opinion of the doctor , the hunger striker 's condition is becoming significantly worse , it is essential that the doctor report this fact to the appropriate authority and take action in accordance with national legislation ( including professional standards ) . \u201d","The relevant extracts from LAW of the CPT Standards of \u201c Health care services in prisons \u201d [ ORG ) DATE ] and extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] read as follows :","\u201c CARDINAL . Patients should be provided with all relevant information ( if necessary in the form of a medical report ) concerning their condition , the course of their treatment and the medication prescribed for them . Preferably , patients should have the right to consult the contents of their prison medical files , unless this is inadvisable from a therapeutic standpoint .","They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor .","Every patient capable of discernment is free to refuse treatment or any other medical intervention . Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole .","A classically difficult situation arises when the patient 's decision conflicts with the general duty of care incumbent on the doctor . This might happen when the patient is influenced by personal beliefs ( eg . refusal of a blood transfusion ) or when he is intent on using his body , or even mutilating himself , in order to press his demands , protest against an authority or demonstrate his support for a cause .","In the event of a hunger strike , public authorities or professional organisations in some countries will require the doctor to intervene to prevent death as soon as the patient 's consciousness becomes seriously impaired . In other countries , the rule is to leave clinical decisions to the doctor in charge , after he has sought advice and weighed up all the relevant facts . \u201d","The relevant extracts from the Report of the ORG on a visit to GPE from DATE to DATE read as follows :","\u201c ... CARDINAL . At FAC . CARDINAL , the building reserved for women and minors ( No . CARDINAL ) offered the best material conditions of the establishment . All the cells were clean and well maintained , properly equipped , benefited from good natural and artificial lighting , and had toilets that were partitioned off . In many cells , the living space , although far from ideal , was greater than that found in the other detention areas . For example , a cell measuring CARDINAL ORG accommodated CARDINAL women . Among the minors , a QUANTITY m\u00b2 cell accommodated CARDINAL boys ; it was , however , designed for CARDINAL , which is excessive . Generally speaking , the delegation observed that the potential occupancy rates of the cells in the building allowed for a living space of CARDINAL to CARDINAL.CARDINAL m\u00b2 per person .","The ORG welcomes the fact that , in the parts of building No . CARDINAL reserved for remand prisoners , administrative prisoners and prisoners subject to the \u201c Tyurma \u201d regime , there was proper access to daylight and fresh air , except in certain cells where the windows were still fitted with obstructive devices ( for example , wire mesh ) . Otherwise , material conditions varied . Many of the cells visited , although modestly equipped , were properly maintained and clean . Others , however , had been damaged by damp and were dirtier , with toilets in relatively poor condition , rusty beds and very modest bedding infested with cockroaches and other vermin .","Given the number of prisoners they accommodated at the time of the visit , the living space in certain cells could be considered tolerable or even acceptable . For example , among the remand prisoners , a DATE m\u00b2 cell accommodated CARDINAL prisoners , a CARDINAL ORG cell housed CARDINAL prisoners , a CARDINAL m\u00b2 cell was occupied by CARDINAL people and a CARDINAL m\u00b2 cell by CARDINAL . But here again , the living space was completely taken up by surplus beds .","Finally , heating was , generally speaking , a problem , as the temperature was barely above DATE .","NORP The prison administration made real efforts to provide those prisoners who needed them with basic essentials ( hygiene and cleaning products and , if necessary , extra clothing \/ shoes ) . Some women complained , however , that they were unable to obtain the special hygiene products they needed ( sanitary towels \/ tampons ) . The delegation raised the issue with the prison governor , who gave assurances that the situation would be remedied . The ORG would like to obtain confirmation that the problem has now been resolved .","NORP In GPE No . CARDINAL in GPE , the situation of overcrowding , exacerbated by generally precarious material conditions , could legitimately be considered to amount to inhuman and degrading treatment .","The prisoners were crammed into a tiny living space . For instance , there were CARDINAL prisoners in cells measuring CARDINAL to CARDINAL m\u00b2 , CARDINAL in CARDINAL ORG and CARDINAL ( with forty beds ) in DATE m\u00b2 . According to information gathered by the delegation , some parts of the prison had apparently been even more overcrowded in DATE . For instance , up to CARDINAL prisoners had been placed in cells measuring CARDINAL m\u00b2 in the admissions unit , where they had had to share CARDINAL beds .","Most of the cells were very dilapidated , with damp - ridden walls and ceilings . The facilities were in a bad state of repair , the bedding was often dirty and inadequate ( prisoners had to rely on relatives for sheets and blankets ) , and the toilets were not properly partitioned off , if at all . Moreover , in many cells , the toilets did not have a proper flush , which added to the ambient insalubrity . Worst of all , the cells were teeming with cockroaches .","In certain cells , prisoners were obliged to put blankets over the windows to keep out the draught , as panes of glass were missing . In addition , in many cells , the heating left something to be desired , as the temperature was only DATE .","In fact , the only positive feature was that the cells all had proper access to daylight and adequate artificial lighting .","The delegation received numerous complaints about the lack of basic hygiene and cleaning products , including toilet paper . In addition , prisoners had to wash their belongings and sheets and blankets in their cells with the means at their disposal , under highly dubious conditions of hygiene .","Furthermore , in view of the small number of showers per prison section ( for example , CARDINAL showers for CARDINAL prisoners ) and their very dilapidated state , prisoners had great difficulty in maintaining satisfactory personal hygiene .","In their letter of DATE , the NORP authorities stated that , in order to reduce overcrowding , it was planned to build a new building with a capacity of CARDINAL places and to transfer a number of prisoners to other remand establishments in the region .","They also referred to other steps taken to remedy the hygiene problems observed ( such as the provision of disinfectants and the washing of the bedding in the GPE laundry ) and indicated that prisoners were now provided with the necessary hygiene products .","Although the visit to Colony No . CARDINAL focused on particular aspects ... the delegation noted that in the CARDINAL sections ( CARDINAL and CARDINAL ) which it visited the dormitories were well - lit and ventilated , and equipped with beds with full bedding , bedside tables and storage space . The sanitary annexes were clean and relatively well maintained .","The dormitories were crowded . In DATE , for instance , dormitories measuring CARDINAL ORG were accommodating CARDINAL people ; however , this was somewhat offset by the fact that prisoners could move about freely during the daytime in their section and had access to an exercise yard .","In this establishment , the delegation received numerous complaints about the lack of warm DATE clothes ( coats and hats ) . The matter was raised with the prison governor who assured the delegation that there were sufficient supplies to meet prisoners ' needs . The ORG wishes to obtain confirmation that the prisoners in Colony No . CARDINAL have clothes suitable for the weather conditions .","In the light of the above , the ORG recommends that :","in Prison No . CARDINAL :","- the necessary repairs to building No . CARDINAL be carried out so that the material conditions equal those in building No . CARDINAL , reserved for women and minors , in all respects ;","- the cells be adequately heated ;","in GPE No . CARDINAL :","- the material shortcomings observed be remedied , in order to ensure that :","- every prisoner has his own bed with full and clean bedding ;","- the toilets in all the cells are properly partitioned off and have a working flush ;","- the windows in all the cells have glass panes in them ;","- the cells are adequately heated ;","- the showers are in a satisfactory state of repair and that , as soon as possible , the number of showers is increased ;","- the scheduled construction of the new building with a capacity of CARDINAL places is completed ;","- the occupancy rates in the cells \/ dormitories of the CARDINAL establishments be reduced , the objective being to provide CARDINAL GPE of living space per prisoner . \u201d","The relevant extracts from the Report of the ORG on a visit to GPE [ ORG ( DATE ) CARDINAL ] read as follows :","\u201c CARDINAL . Management of hunger strikers","... The delegation had earlier been informed that these directives indicated that the management of hunger strikers should be based on a doctor \/ patient relationship . In fact , they deliver the clear message that \u201c The duty of health workers is to assist in the continuation of life . The right to life , the most basic of the rights and freedoms , may not be limited by any norm or criterion . \u201d Turning to specifics , it is stipulated that \u201c From the instant organ deterioration is noted , total parenteral nutrition is to be administered \u201d .","At the time of the DATE visit , no prisoner had yet reached a stage where it was necessary to take a decision on possible artificial feeding against his \/ her wishes . However , cases of artificial feeding have subsequently occurred . ORG officials informed the ORG 's delegation during the DATE visit that they were not aware of any cases of forced - feeding of prisoners who were conscious , but that prisoners had been artificially fed after losing consciousness .","As was acknowledged in the preliminary observations dated DATE , the issue of the artificial feeding of a hunger striker against his \/ her wishes is a delicate matter about which different views are held , both within GPE and elsewhere . The ORG understands that ORG is currently reviewing its policy on this subject .","To date , the ORG has refrained from adopting a stance on this matter . However , it does believe firmly that the management of hunger strikers should be based on a doctor \/ patient relationship . Consequently , the ORG has considerable reservations as regards attempts to impinge upon that relationship by imposing on doctors managing hunger strikers a particular method of treatment . \u201d","DATE . The relevant extract from the DATE Declaration reads as follows :","\u201c ... CARDINAL . Where a prisoner refuses nourishment and is considered by the doctor as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment , he or she shall not be fed artificially . The decision as to the capacity of the prisoner to form such a judgment should be confirmed by CARDINAL other independent doctor . The consequences of the refusal of nourishment shall be explained by the doctor to the prisoner . \u201d","The Declaration of the World Medical Association on Hunger Strikers reads as follows :","\u201c PREAMBLE","The doctor treating hunger strikers is faced with the following conflicting values :","There is a moral obligation on every human being to respect the sanctity of life . This is especially evident in the case of a doctor , who exercises his skills to save life and also acts in the best interests of his patients ( Beneficence ) .","CARDINAL.CARDINAL . It is the duty of the doctor to respect the autonomy which the patient has over his person . A doctor requires informed consent from his patients before applying any of his skills to assist them , unless emergency circumstances have arisen in which case the doctor has to act in what is perceived to be the patient 's best interests .","NORP This conflict is apparent where a hunger striker who has issued clear instructions not to be resuscitated lapses into a coma and is about to die . Moral obligation urges the doctor to resuscitate the patient even though it is against the patient 's wishes . On the other hand , duty urges the doctor to respect the autonomy of the patient .","Ruling in favour of intervention may undermine the autonomy which the patient has over himself .","Ruling in favour of non - intervention may result in a doctor having to face the tragedy of an avoidable death .","A doctor \/ patient relationship is said to be in existence whenever a doctor is duty bound , by virtue of his obligation to the patient , to apply his skills to any person , be it in the form of advice or treatment . This relationship can exist in spite of the fact that the patient might not consent to certain forms of treatment or intervention . Once the doctor agrees to attend to a hunger striker , that person becomes the doctor 's patient . This has all the implications and responsibilities inherent in the doctor \/ patient relationship , including consent and confidentiality .","The ultimate decision on intervention or non - intervention should be left with the individual doctor without the intervention of third parties whose primary interest is not the patient 's welfare . However , the doctor should clearly state to the patient whether or not he is able to accept the patient 's decision to refuse treatment or , in case of coma , artificial feeding , thereby risking death . If the doctor can not accept the patient 's decision to refuse such aid , the patient would then be entitled to be attended by another physician .","GUIDELINES FOR THE MANAGEMENT OF HUNGER STRIKERS","Since the medical profession considers the principle of sanctity of life to be fundamental to its practice , the following practical guidelines are recommended for doctors who treat hunger strikers :","DEFINITION","A hunger striker is a mentally competent person who has indicated that he has decided to embark on a hunger strike and has refused to take food and\/or fluids for a significant interval .","ETHICAL BEHAVIOUR","A doctor should acquire a detailed medical history of the patient where possible .","A doctor should carry out a thorough examination of the patient at the onset of the hunger strike .","Doctors or other health care personnel may not apply undue pressure of any sort on the hunger striker to suspend the strike . Treatment or care of the hunger striker must not be conditional upon him suspending his hunger strike .","NORP The hunger striker must be professionally informed by the doctor of the clinical consequences of a hunger strike , and of any specific danger to his own particular case . An informed decision can only be made on the basis of clear communication . An interpreter should be used if indicated .","Should a hunger striker wish to have a second medical opinion , this should be granted . Should a hunger striker prefer his treatment to be continued by the second doctor , this should be permitted . In the case of the hunger striker being a prisoner , this should be permitted by arrangement and consultation with the appointed prison doctor .","Treating infections or advising the patient to increase his oral intake of fluid ( or accept intravenous saline solutions ) is often acceptable to a hunger striker . A refusal to accept such intervention must not prejudice any other aspect of the patient 's health care . Any treatment administered to the patient must be with his approval .","NORP CLEAR INSTRUCTIONS","The doctor should ascertain on a DATE basis whether or not the patient wishes to continue with his hunger strike . The doctor should also ascertain on a DATE basis what the patient 's wishes are with regard to treatment should he become unable to make an informed decision . These findings must be recorded in the doctor 's personal medical records and kept confidential .","ARTIFICIAL FEEDING","When the hunger striker has become confused and is therefore unable to make an unimpaired decision or has lapsed into a coma , the doctor shall be free to make the decision for his patient as to further treatment which he considers to be in the best interest of that patient , always taking into account the decision he has arrived at during his preceding care of the patient during his hunger strike , and reaffirming article CARDINAL of the preamble of this Declaration .","COERCION","Hunger strikers should be protected from coercive participation . This may require removal from the presence of fellow strikers .","FAMILY","The doctor has a responsibility to inform the family of the patient that the patient has embarked on a hunger strike , unless this is specifically prohibited by the patient . \u201d"],"violated_articles":["3","38","5"],"violated_paragraphs":["5-1","5-3"],"violated_bulletpoints":["5-1-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77181","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2006,"docname":"SHERSTYUK v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in the town of GPE of the GPE region . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG of GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant opened a fixed - term deposit account in ORG . Under the contract , the DATE interest rate on the deposit was PERCENT .","By a decision of DATE , PERSON ( ORG ) of GPE declared the NORP branches of ORG being a property of ORG . The operation of banks and banking activities was regulated by law ( see Relevant domestic law , below ) .","Since DATE , NORP economy experienced hyperinflation , with its peak in DATE .","On DATE the regional branch of ORG ( hereinafter DATE \u201c the ORG \u201d ) placed an announcement in ORG newspaper called \u201c Nasha gazeta \u201d . The announcement read as follows :","\u201c ORG informs","As of DATE the DATE interest rate on fixed - term deposits and on special deposits for children is set at MONEY . No new formalities are required for previously opened fixed - term deposits and special deposits for children . \u201d","According to the applicant , having read this announcement and having received confirmation in the local office of the ORG , the applicant decided , contrary to her initial intentions , not to withdraw her money deposited with the ORG .","In DATE the NORP authorities implemented a monetary reform intended to replace the former monetary unit , the karbovanets coupon , with a new currency , the NORP hryvnia ( \u0443\u043a\u0440\u0430\u0457\u043d\u0441\u044c\u043aa \u0433\u0440\u0438\u0432\u043da , ORG ) , at an exchange rate of CARDINAL karbovanets coupons for QUANTITY .","According to the applicant , in DATE , having difficulties in understanding the information written in her account statement records , she consulted an expert who , after having examined the above records , found out that since DATE the DATE interest rate on her deposit had been lower than PERCENT . According to the applicant the annual interest rate on her deposit was PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , and PERCENT in DATE .","In DATE the applicant instituted proceedings in ORG of GPE against the ORG seeking compensation for damages caused by decreasing the DATE interest rates on her deposit without informing her and without seeking her prior consent . She complained that the ORG fell short of its obligations to pay on her deposit the interests of PERCENT per year fixed in DATE after publication of the announcement in the official newspaper of the regional council .","According to the applicant , during the hearing , the representative of the ORG , explained , among other things , that in accordance with ORG and instructions of DATE and DATE , the ORG was not obliged to disseminate information about the applicable interest rates , but such information had always been available in branches of the ORG and the applicant could have consulted it there .","By its judgment of DATE , the court rejected the applicant \u2019s claim as unsubstantiated , for the following reasons :","\u201c ... the defendant , having changed unilaterally the interest rates on the fixed - term deposit had acted in accordance with LAW in the wording of DATE , under which ORG sets the interest rates on deposits within the maximum interest rates set by ORG .","At the same time , this PERSON does not foresee any other conditions for setting interest rates on deposits , including agreement of depositors .","Taking into account , that Laws ... have the highest legal force and are obligatory for implementation by all legal persons and citizens of GPE , the court considers that the defendant \u2019s actions on unilateral changes of the interest rates on the fixed - term deposit of the applicant had been lawful , therefore the claims ... are unsubstantiated ... \u201d","The applicant appealed against this judgment to ORG .","On DATE ORG upheld the judgment of the first instance court . In its decision the appellate court , having repeated the reasoning of the first - instance court , also noted that the applicant had deposited her money in DATE with the interest rate of MONEY . Since DATE the ORG had been changing the interest rate but the latter never went lower than the original rate of MONEY .","The applicant appealed in cassation .","On DATE the panel of CARDINAL judges of ORG rejected the applicant \u2019s request for leave to appeal in cassation .","Article CARDINAL","\u201c Everyone has the right to own , use and dispose of his or her property , and the results of his or her intellectual and creative activity ...","No one shall be unlawfully deprived of the right of property . The right of private property is inviolable ... \u201d","Article CARDINAL . Interest rates of ORG","\u201c ORG fixes the interest rates on the deposits of the population within the limits of the maximum interest rates , established by ORG . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106169","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2011,"docname":"CASE OF PASKAL v. UKRAINE","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violations of Art. 6-1","judges":"Dean Spielmann;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy","text":["The applicant was born in DATE and lives in PERSON . In DATE the applicant obtained a university degree in law and at the material time was serving as a police officer in PERSON .","On DATE the applicant was arrested on suspicion of having taken part in a robbery on DATE .","At TIME on DATE the applicant signed a procedural rights notification form , having noted in it that he wished to appoint PERSON as his advocate .","At TIME on the same date the applicant was questioned , without a lawyer , about the robbery . During this questioning the applicant provided various personal details and stated that he had no knowledge of the robbery , as on the date at issue he was dividing his time between his professional duties as a police officer and his studies at law school . He also named witnesses on his behalf . The interview transcript started with the following paragraph , undersigned by the applicant in addition to his general signature under the document :","\u201c My rights have been explained to me under LAW , according to which I have a right to refuse to testify concerning myself . I wish to testify concerning the case at issue \u201d .","On DATE the applicant , being questioned in the presence of PERSON ( the advocate , mentioned by the applicant in his rights notification form ) , stated that he confirmed his testimony of DATE and had nothing to add .","NORP In the course of further investigation , the authorities increased the charges , eventually imputing to the applicant organisation of a gang and participation in CARDINAL robberies . The investigation questioned CARDINAL witnesses , carried out CARDINAL reconstructions of crime scenes and ordered numerous expert assessments .","On DATE the pre - trial investigation was completed and the applicant , along with CARDINAL other individuals implicated in membership of his gang , was committed for trial to ORG of GPE ( subsequently renamed ORG of GPE , and hereafter \u201c the ARC Court \u201d ) .","On DATE , following familiarisation of the defendants with the case file materials and completion of other procedural formalities , ORG held a preliminary hearing in the case and scheduled the trial for DATE .","Having held some CARDINAL hearings DATE , ORG adjourned the proceedings following a request by CARDINAL of the defendants that the hearings be recorded , for which the technical means were not available at the time .","On CARDINAL DATE the ARC Court resumed consideration of the case .","On DATE the applicant complained in court that he had been tortured during the pre - trial investigations . Following an inquiry in respect of his complaint , on CARDINAL DATE ORG refused to institute criminal proceedings against the police officers implicated by the applicant in his ill - treatment , for want of evidence of any such ill - treatment . According to the materials in the case file the applicant did not appeal against this decision .","On DATE PERSON , the applicant \u2019s co - defendant , complained that Judge PERSON . , presiding over the case , was not impartial . In particular , in the beginning of the trial she had given an interview to the ORG newspaper , expressing an opinion about the GPE guilt . PERSON presented a copy of the newspaper published on DATE , featuring the article entitled \u2018 Changelings with police epaulettes\u2019 . In this article the Judge was , in particular , quoted as saying :","\u201c Most often it was the well - off residents of the LOC or GPE who were the victims of armed assaults ... The robbers acted cruelly and coldheartedly , using any means to get the money . They acted as persons absolutely certain of their impunity . Such audacity ... I , frankly speaking , have never encountered during DATE of judicial practice . Yes , I am aware of occasions when criminals have used police uniforms for various criminal plots , however , those individuals had nothing to do with the law - enforcement bodies , unlike GPE and his comrades , who managed to combine law - enforcement service with robbery . The defendants , I should say , admit their guilt in part , however , their conduct is extremely challenging . They constantly lodge absolutely unfounded requests for the removal of the judge and the prosecutor . I assume , however , that in the course of the hearings their arrogance will vanish . The hearings are likely to last a long time \u201d .","On the same date Judge PERSON . addressed a letter to ORG ARC requesting that the circumstances of the publication be investigated . She maintained that the publication , which , in her opinion , could adversely influence the proceedings , was inaccurate , as she had never given the said interview to the newspaper .","Following Judge PERSON . \u2019s application , the ORG established that the ORG newspaper belonged to ORG of GPE in Sevastopol . A request was sent to ORG of GPE to investigate the matter . According to the case file materials , there was no further follow - up .","DATE and CARDINAL DATE ORG held CARDINAL hearings in the applicant \u2019s case .","On DATE the ARC Court pronounced its judgment , which was presented on CARDINAL pages . The court convicted the applicant of being a member of a gang and of numerous counts of robbery , and sentenced him to DATE imprisonment . The court examined in detail and rejected the complaints by the applicant and his coaccused that they had been ill - treated by the investigative authorities .","On DATE the applicant appealed in cassation , alleging that the trial court had erred in its assessment of the facts and application of the law and imposed a disproportionately heavy sentence on him .","On DATE the applicant amended his initial appeal . He contended , in particular , that Judge PERSON . was not impartial , since she had given an interview to the ORG newspaper implying that the applicant was guilty long before the conviction had been pronounced . He also complained in general terms that his right to defence had been infringed , in particular as the trial court had not allowed him to be represented by several unnamed defenders and as the initial bill of indictment allegedly contained fewer charges than those examined by the court .","On DATE ORG rejected the applicant \u2019s appeal , finding that the trial court had properly assessed the facts and applied the law to his case and that there were no procedural irregularities in the proceedings such as would prejudice the applicant \u2019s right to a fair trial . It likewise found that there was no evidence that the applicant had been illtreated .","On DATE ORG remanded the applicant in custody for DATE pending determination of the grounds for his indictment .","On DATE the applicant was presented with a bill of indictment and his detention was extended until DATE . Subsequently , on several occasions ORG ARC took decisions to extend the term of the applicant \u2019s detention , the reasoned texts of which , if any , have not been provided to ORG .","Initially the applicant was held in several Temporary Detention Centres ( ORG ) , which were purportedly not suitable for long - term detention . Eventually , by DATE he was transferred to ORG ( GPE ) no . CARDINAL , where he had allegedly no access to quality medical assistance , in particular to the services of a specialist in endocrinology .","On DATE ORG extended the applicant \u2019s detention until DATE . According to the applicant , after this date and before the date of his conviction on CARDINAL DATE his detention was not based on any formal decision . The applicant raised a relevant complaint before ORG of GPE in amendments to his cassation appeal and obtained no response .","According to the Government , on DATE the ARC Court extended the applicant \u2019s detention for the period of the trial , finding that there were no reasons to release him and modify the custodial preventive measure in his respect . The Government did not provide a copy of this decision .","On DATE the applicant instituted civil proceedings against Flag Rodiny and several other newspapers and a local television company which had provided media coverage of the trial , complaining that they had portrayed him as a criminal before he had been finally convicted .","On DATE the ORG of PERSON rejected his claims , in particular , as lodged outside the DATE statute of limitations without any valid grounds for the delay .","On DATE ORG upheld this decision .","On DATE ORG of GPE refused the applicant \u2019s request for leave to appeal in cassation .","The relevant provisions of ORG CARDINAL and CARDINAL of the LAW of GPE of DATE concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL , \u00a7 DATE ) .","The relevant provisions of LAW GPE of DATE concerning preventive measures pending trial are quoted in the judgment in the case of PERSON v. GPE , no . CARDINAL , \u00a7 DATE , DATE ."],"violated_articles":["5","6"],"violated_paragraphs":["5-1","5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-83321","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2007,"docname":"KAVEKO INTERNATIONAL S.R.O. AND OTHERS v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The CARDINAL applicants are identified below . The respondent Government were represented by PERSON , their Agent , who was succeeded in that function by PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The first applicant , ORG r.o . PERSON , is a private commercial limited liability company having its head office in PERSON and a separate legal personality under NORP law , distinct from that of its owners . The second and third applicants , PERSON and ORG , are NORP nationals who were born in DATE and DATE respectively and live in PERSON .","In DATE the second applicant and the third applicant acquired jointly PERCENT of the shares in the first applicant . The second applicant is the first applicant \u2019s statutory representative . The second applicant at the same time holds shares in and is one of the statutory representatives of another commercial limited liability company ( \u201c company K \u201d ) . Company K was the founder of and held shares in the first applicant .","In DATE company K made a credit arrangement with a bank in order to pay for the lease of machinery from a private lessor . In DATE the bank entered the leasing arrangement in that it obtained an option to buy the machinery at the end of the lease term for a residual value .","In DATE the first applicant took over the debt owed to the bank on the condition that , at the end of the lease term , the bank would exercise its option and obtain and subsequently transfer the ownership of the machinery to the first applicant .","The bank did not exercise the option , as a result of which the lessor was free to sell and did in fact sell the machinery to a third party . Company K thus lost a substantial component of its operations .","In DATE the bank brought several actions against the first applicant claiming that it was in default of payment of the bank credit . The bank claimed damages .","The actions were subsequently stayed pending the outcome of insolvency proceedings in respect of the first applicant ( see below ) . The proceedings have still not been resolved .","On DATE the bank petitioned for an insolvency order against the first applicant . It was argued that the first applicant was in default of payment of the debt owed to the bank ; that it had several creditors ; and that it would be unable to meet its obligations in the near future .","On DATE ORG ( PERSON s\u00fad ) made the order , appointed an insolvency administrator and invited creditors to register their claims within DATE . The order was upheld on the first applicant \u2019s appeal by ORG ( Najvy\u0161\u0161\u00ed s\u00fad ) on DATE , and became final and binding on DATE .","By virtue of the insolvency order , pursuant to LAW ( a ) and ( h ) of LAW , the capacity to make dispositions in respect of the insolvent estate and to exercise rights and duties related to the making of dispositions in respect of the estate was transferred to the insolvency administrator and all powers of attorney granted by the first applicant automatically ceased to exist .","The bank \u2019s claims against the first applicant were contested and , as a result , the bank had to seek their judicial recognition by way of a separate action ( inciden\u010dn\u00e1 \u017ealoba ) . The action was allowed at first instance on DATE , but the judgment was quashed on appeal on DATE and is still pending .","By decisions ( opatrenie ) of DATE and DATE ORG authorised a direct sale without a public auction by the administrator of various movable and immovable items from the assets of the first applicant . The authorisation was not subject to appeal .","Further items from the insolvent estate of the first applicant have been sold off in the course of the proceedings . The applicants maintain that the sales were based on manifestly unfavourable terms and that they were contrary to both substantive law and procedural rules . They complained on numerous occasions to ORG that the actions of the insolvency administrator in connection with the sale were illegal and contrary to their interests . All their complaints were to no avail . The insolvency proceedings as such are still pending .","Under LAW of LAW , an insolvency court can replace the insolvency administrator on the motion of the insolvent person or the trustee provided there are important reasons .","On DATE the first applicant , acting through a lawyer , lodged a petition ( podnet ) under LAW of LAW with ORG ( \u00dastavn\u00fd s\u00fad ) contesting the insolvency order of CARDINAL DATE .","On DATE ORG declared the petition inadmissible as being manifestly ill - founded . The first applicant \u2019s objections were held to be of a fourth - instance nature and , as such , fell outside the scope of ORG review .","On DATE the second applicant lodged a fresh complaint ( s\u0165a\u017enos\u0165 ) under LAW with ORG . He sought to contest , in the name of the first applicant , the length of the proceedings in the bank \u2019s civil actions and asserted that those proceedings had been marked by the violation of a variety of procedural rights .","On DATE ORG declared the complaint inadmissible ratione personae . It observed first of all that the complaint was intended to be brought in the name of the first applicant . However , by virtue of the insolvency order , the capacity to act in the name of the first applicant had passed to the administrator ( LAW ( a ) of LAW ) , civil actions against it had been ex lege stayed ( LAW ( d ) of LAW ) and could be resumed solely on motion by the administrator ( LAW ) and any new proceedings could commence only on motion by the administrator ( LAW ( c ) of LAW ) . The present complaint had however not been brought by the administrator or her lawful agent and , therefore , could not be accepted as having been lodged in the name of the first applicant ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4919","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":1999,"docname":"FOX v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is an NORP citizen . At the time of lodging his application he was detained in PERSON The GPE , GPE .","He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , CARDINAL , GPE , a security guard , was shot dead by CARDINAL men in FAC in the centre of GPE . The gunmen \u2019s escape was caught on video cameras positioned in the vicinity . The gunmen were wearing ORG white safety helmets , dust masks and gloves . CARDINAL of the gunmen was wearing a jacket which had a blue \/ grey check or plaid , the other a tan coloured jacket . They were shown on the video film retrieved from the cameras running towards FAC at the junction of FAC and LOC , not far from the scene of the killing . The gunmen \u2019s flight was subsequently taken to have occurred at CARDINAL . At the applicant \u2019s trial the judge was satisfied that the time shown on a video camera filming the gunmen \u2019s escape was TIME slow in comparison with the speaking clock . The sequence of events was not disputed at the applicant \u2019s trial .","On DATE the police conducted a search of the house of the applicant \u2019s girlfriend where the applicant was staying . Among the items seized was a child \u2019s red coat with a black trim round the collar , which belonged to the applicant \u2019s daughter . After the search the police arrested the applicant and cautioned him , pursuant to LAW Order DATE , in the following terms :","\u201c You do not have to say anything unless you wish to do so , but I must warn you that if you fail to mention any fact which you rely on in your defence in court , your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you . If you do wish to say anything , what you say may be given in evidence . \u201d","The applicant did not reply to the caution . He was taken to ORG where the police handed him a written copy of the caution together with an explanatory sheet .","On DATE the police conducted a search of the applicant \u2019s brother \u2019s house and seized a white or cream shirt which was at that time being worn by the brother .","The applicant was interviewed on numerous occasions DATE and DATE . A caution was administered at the start of the first interview and again before the beginning of some of the other interviews . The applicant refused to answer any questions , including questions concerning his movements on TIME CARDINAL DATE . He also refused to watch a video recording or still photographs taken from the recording showing him entering the ORG immediately after the shooting with a child in his arms .","The police also arrested a certain PERSON who similarly refused to answer questions or react to his appearance in the video recording carrying a child in his arms .","The applicant and S. were charged with the murder of GPE and with possession of a revolver and a quantity of ammunition with intent to endanger life . They were tried at ORG before a single judge sitting without a jury .","At the trial , Witness A. testified that he was having a drink in FAC and saw CARDINAL men enter through FAC entrance wearing white safety helmets and face masks . They passed through the bar to the porch leading onto LOC . He saw CARDINAL of the men take off his safety helmet , gloves and jacket . He was met by a woman and a young child . He handed a package to the woman and picked up the child , whom he recalled as being blond and wearing something red . Witness A. gave a description of the men and their clothing . His evidence in respect of the clothing was found to be flawed .","Witnesses B. and C. testified that they saw CARDINAL women at FAC entrance to FAC sometime after CARDINAL . CARDINAL men were standing inside the entrance and were removing anti - dusk masks and blue ORG overalls . The CARDINAL women then each handed a small child to each of the men . The couples walked quickly down PERSON , each man carrying a child . Witness B. last saw the couples at the end of LOC by the junction of FAC . He also stated that he saw an army landrover turning at the junction . Witness C. confirmed Witness PERSON \u2019s account . Witness PERSON said he saw the discarded clothing in LOC . CARDINAL of the discarded jackets had a blue \/ grey check or plaid on the outside .","On the basis of this testimony the trial judge was satisfied that the CARDINAL men carrying children last seen by Witnesses PERSON and C. at the end of LOC and going in the direction of FAC were the gunmen who killed GPE","The prosecution adduced video recordings in support of its case that the applicant and his co - accused , S. , were the gunmen . The court heard that LAW was filming persons crossing FAC from the end of LOC and heading towards the entrance to FAC . Camera CARDINAL was filming persons entering FAC Camera CARDINAL recorded CARDINAL men carrying children walking within QUANTITY of each other towards FAC entrance of FAC . The time was CARDINAL . Camera CARDINAL recorded CARDINAL man carrying a small child enter at CARDINAL . A second man , walking a few paces behind the first man , then entered with a small girl in his arms . The child was wearing a red coat with a black trim around the collar . The applicant \u2019s features are distinguishable from the recording of the second man . On the video film retrieved from LAW and CARDINAL an army landrover , also referred to in the testimony of Witnesses B and C , is clearly visible . It was not disputed that there was CARDINAL army landrover in the centre of GPE on TIME in question .","The video cameras also picked out a \u201c third man \u201d carrying a small child and crossing FAC from the direction of LOC and entering FAC of FAC . The man was wearing a blue garment with a very conspicuous logo on the back and front . In the film he is first seen carrying a child wearing a red or pink coat or jacket and when in FAC he is seen holding the child \u2019s hand .","In addition to the witness evidence and the video evidence , the prosecution relied on the following :","\u2013 the red coat seized at the house of the applicant \u2019s girlfriend was an exact match of the coat worn by the child seen being carried by the second man in the video film , identified as the applicant .","\u2013 forensic evidence that a blue \/ grey check jacket discarded by CARDINAL of the CARDINAL men who had entered the GPE bar after the killing had come into contact with the child \u2019s red coat found at the applicant \u2019s girlfriend \u2019s house . Red fibres from the coat had been found on the jacket .","\u2013 forensic evidence that one of the white safety helmets discarded by the CARDINAL men in FAC had blood on it of the same rare type as that of the victim \u2019s .","\u2013 forensic evidence that there were firearms residue on each of the CARDINAL jackets discarded outside the bar .","At the close of the prosecution case , the applicant \u2019s counsel , who had accepted that the applicant was the second man filmed on LAW and CARDINAL , asked the judge to rule that there was insufficient evidence against his client to constitute a prima facie case that he was one of the gunmen .","Without any reference to LAW Order DATE ( \u201c the DATE LAW ) , the trial judge concluded that a \u201c strong prima facie case \u201d had been made out that the applicant was one of the killers . The judge had regard to the following considerations : the strong visual likeness between the man filmed on Camera DATE and the applicant ; the timing of the events as filmed ; the link between the applicant and the gunmen seen by Witnesses PERSON and C. was strengthened by the fact that both witnesses had seen the landrover turning at the end of FAC at almost the same time as the arrival of the gunmen at that spot and strong forensic evidence of contact between the discarded blue \/ grey jacket and the child \u2019s red coat found at the home of the applicant \u2019s girlfriend .","In reaching this conclusion the judge had due regard to the weakness of Witness A. \u2019s recollection of the colour of the jacket worn by the first man who entered FAC , alleged to be the applicant . He also noted that Witness A. had incorrectly described the colour of the child \u2019s hair as blond . It was in fact dark . Furthermore , the judge acknowledged that Witness B. was incorrect in his recollection that he had seen QUANTITY men removing blue overalls at FAC . In the judge \u2019s opinion , these discrepancies did not detract from the weight of the prosecution case against the applicant . He observed that Witness A. \u2019s description of the nose and hair of the first man to enter the bar reasonably tallied with the applicant \u2019s . The judge did not accept the applicant \u2019s submission that the third man filmed carrying a child entering FAC could have been one of the gunmen . He considered that the video evidence and the timing of all CARDINAL men \u2019s appearances in the recordings suggested that there was DATE TIME gap between the camera sighting of the third man in FAC and the appearance of the CARDINAL gunmen . For the judge , it would have been most unlikely that there would have been such a distance between the CARDINAL gunmen who had last been seen together by Witnesses PERSON and C. at the end of LOC .","At the end of the prosecution case , the applicant gave evidence . Answering the only question put to him by his counsel , the applicant denied any involvement in GPE \u2019s murder . In cross - examination he stated that on DATE he had taken his small daughter to GPE and had gone to ORG to allow her to throw coins into the fountain before going on an errand . The applicant accepted that he was one of the men recorded on Camera CARDINAL entering FAC carrying the girl in the red coat , at CARDINAL .","The applicant further stated that he had refused to give this explanation when interviewed by the police because he had an unfriendly relationship with the police , and that he was angry because they had arrested his girlfriend and had caused distress to his children . The applicant denied being in the company of S. on DATE .","Having ruled that the CARDINAL accused had a case to answer , the judge drew a very strong inference against the applicant under LAW of the DATE Order from the applicant \u2019s failure to answer the questions put to him by the police . The judge considered the following :","\u201c Notwithstanding that [ the applicant ] has no previous convictions and the relevance of this consideration to the issue of his credibility I am satisfied that [ the applicant ] told a tissue of lies in the witness box as to the reasons why he did not tell the police when interviewed in ORG that he had entered the FAC on TIME CARDINAL DATE carrying a child , that he had nothing to do with the murder of GPE and that he had entered FAC for the innocent purpose of allowing his child to throw coins into the fountain , and as to his reasons for failing to watch the video film and to acknowledge that he was one of the men shown on it and to say that his reason for entering the centre was innocent . I am also satisfied that [ the applicant ] lied in the witness box when he said he had nothing to do with the murder of [ GPE ] and that he was in the area of FAC for an innocent purpose .","If the account which [ the applicant ] gave in the witness box for his movements on TIME CARDINAL May were true , and if he were innocent of the murder of [ GPE ] , then notwithstanding whatever hostility he may have felt towards the police , and notwithstanding any feelings of anger and upset he may have had against the police for arresting his girlfriend PERSON , and leaving his children crying for their mother , it is quite unbelievable and completely contrary to common sense that [ the applicant ] would not have given his innocent explanation to the police in the hope that this would secure the release of his girlfriend and also his own release . \u201d","Having regard to the very strong case against the applicant and the very strong inference drawn against him under LAW , the judge was satisfied that the applicant was one of the gunmen who murdered GPE and found him guilty on both counts of the indictment .","The applicant appealed against conviction to ORG . He argued that , on the evidence , the trial judge had erred in finding that he had a case to answer . He also challenged the judge \u2019s decision to draw an adverse inference from his silence at ORG in application of LAW .","In its judgment of DATE , ORG found that the judge was justified in ruling on the evidence before him that there was a prima facie case against the applicant . The court rejected the applicant \u2019s suggestion that the forensic evidence linking the red coat to one of the gunmen \u2019s jackets was less than compelling . In the opinion of the court , that evidence was a very significant element in the prima facie case . The court , like the trial judge , also dismissed the applicant\u2019 submission that the fact that a \u201c third man \u201d carrying a child raised a reasonable possibility that the applicant was not CARDINAL of the gunmen . It concluded that that , according to the timings on the videos , the \u201c third man \u201d had been well clear of the junction between FAC and LOC by the time the landrover appeared . Witnesses PERSON and C. put the CARDINAL gunmen at that junction at the same time as the landrover . Even if PERSON had been mistaken about the colour of the top worn by CARDINAL of the gunmen , the judge had been entitled to hold that the uncontradicted evidence of Witnesses B. and C. on timing and the presence of the landrover was accurate . The court further observed that although the \u201c third man \u201d was wearing a top with a very conspicuous logo , neither of these witnesses had recalled this logo which \u201c would have stood out \u201d . ORG also considered that the judge was justified in regarding the difficulties in accepting the correctness of PERSON evidence as insufficient to prevent the ORG \u2019s evidence from being accepted as creating a prima facie case .","As to the drawing of an adverse inference , ORG agreed with the trial judge \u2019s conclusion that it was \u201c quite unbelievable and contrary to commonsense \u201d for the applicant not to have advanced an innocent explanation for his movements on TIME of the murder , if there was one .","ORG rejected the applicant \u2019s submission that the trial judge had been wrong to draw an inference because there was a reasonable possibility that the applicant \u2019s \u201c policy \u201d of not talking to the police was the true explanation for his not having done so . In his judgment , the Lord Chief Justice stated that the assertion of such a \u201c policy \u201d could not preclude a court from drawing adverse inferences . Otherwise , in his view , LAW would be undermined and effects could be negated in every case simply by an accused claiming a \u201c policy \u201d of not talking to the police . The Lord Chief Justice concluded :","\u201c We are quite satisfied that the judge was entitled , and indeed entirely correct , to draw an adverse inference ... . We are also satisfied that he was correct in holding that on the whole of the evidence the ORG had established that the [ applicant ] was one of the gunmen who murdered [ GPE ] . \u201d","B. Relevant domestic law","LAW ) Order DATE provides as relevant :","\u201c Circumstances in which inferences may be drawn from accused \u2019s failure to mention particular facts when questioned , charged , etc .","( CARDINAL ) Where , in any proceedings against a person for an offence , evidence is given that the accused","( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence has been committed , failed to mention any fact relied on in his defence in those proceedings ; or","( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact , being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .","( CARDINAL ) Where this paragraph applies :","( a ) the court , in determining whether to commit the accused for trial or whether there is a case to answer ,","( b ) a judge , in deciding whether to grant an application made by the accused under LAW ) ( GPE ) Order DATE ( application for dismissal of charge where a case of fraud has been transferred from a GPE court to ORG under LAW ) , and","ORG or jury , in determining whether the accused is guilty of the offence charged ,","may","( i ) draw such inferences from the failure as appear proper ;","( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material .","( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-77054","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF ANDANDONSKIY v. RUSSIA","importance":4,"conclusion":"No violation of Art. 6","judges":"David Th\u00f3r Bj\u00f6rgvinsson","text":["The applicant was born in DATE and currently lives in the village of GPE , LOC , GPE .","On DATE the Moskovskiy district prosecutor 's office of GPE brought criminal proceedings against the applicant on suspicion of the attempted murder of ORG on DATE .","On DATE the Moskovskiy ORG of GPE examined the case in an open hearing in the presence of the applicant , his counsel and a public prosecutor . It convicted the applicant of intentionally inflicting grievous bodily harm on ORG and sentenced him to DATE imprisonment . Under an amnesty law enacted on DATE , the court ordered that the applicant be discharged . It further ordered that he should pay pecuniary and non - pecuniary damages to the victim .","The court established the facts as follows . On DATE at TIME , in the course of a quarrel with ORG , the applicant attacked ORG , knocked him off his feet , sat on him , grabbed his head and hit it several times against the asphalt pavement . As a result of the applicant 's actions ORG sustained head injuries including fractures to both parietal bones and a haematoma and a graze in the right parietooccipital region ( fractures to the calvarium ) , a brain contusion , a haematoma in the region of the left eye and grazes to the face . The fractures to both parietal bones and the haematoma and the graze in the right parietooccipital region were assessed as severe injuries and the remaining injuries as moderately severe .","The applicant 's version of events was as follows . He had been out walking with his DATE grandson when a man ( N. ) and a woman ( B. , ORG 's wife ) , previously unknown to him , had approached them and rebuked him for not looking after the child properly . In the course of the quarrel which broke out between them ORG , who was in a state of inebriation , had insulted him and attempted to kick him . The applicant had managed to grab ORG 's leg . ORG had fallen and the applicant had fallen on top of him , resulting in ORG 's head injuries . He had not hit ORG 's head against the pavement .","It is clear from the judgment that the court based its findings on statements by the victim N. and his wife PERSON , the record of a confrontation between the applicant and PERSON during the preliminary investigation , statements by witnesses PERSON and PERSON , and the conclusions of the forensic medical examination .","Thus , ORG stated before the court that when out walking with his wife he had seen a child and had called out , saying that the child could hurt himself . The applicant had then attacked him from behind . He did not remember what had happened next .","B. asserted at the hearing that she and her husband ORG had seen the child and tried to attract someone 's attention to the situation . They had then been approached by the applicant who was in a drunken state . He had insulted them using abusive language and had tried to hit her husband . They had carried on walking . The applicant had then attacked her husband , knocked him off his feet , sat on him , grabbed his head and hit it CARDINAL times against the pavement . He had then jumped to his feet and run away . An ambulance had been called and her husband had been taken quickly to hospital .","On DATE during the preliminary investigation the applicant confronted B. In the course of the confrontation B. insisted that it was the applicant who had brought about the conflict and that he had knocked her husband off his feet , sat on him , grabbed his head and hit it CARDINAL times against the pavement .","Witness PERSON , who was summoned to the court , failed to appear . On DATE she wrote to the court as follows :","\u201c I am writing to inform you that I can not appear in court in the case [ of GPE ] because of my state of health and my age . My statements in the case and my passport details are with a district police officer from police station no . DATE who recorded statements made by me . I confirm those statements again . \u201d","Her letter was received by the court on DATE .","According to the record of the hearing before LOC on DATE , submitted by the ORG , the applicant and his lawyer did not object to the court 's examination of the case ( \u0441\u0443\u0434\u0435\u0431\u043d\u043e\u0435 \u0441\u043b\u0435\u0434\u0441\u0442\u0432\u0438\u0435 ) being started in the absence of witness PERSON , who had not yet been examined at the trial . When , at the end of that hearing , they were asked by the judge about the possibility of concluding the examination of the case in the absence of PERSON , who was not able to attend for health reasons , and ORG , who had failed to appear due to his illness and authorised his wife to represent him at the trial , they replied :","\u201c [ We leave this decision ] to the discretion of the court . \u201d","Having then heard evidence from the victim B. and the prosecutor , the court ordered that the case be adjourned and that the victim ORG should submit for the next hearing a written request for examination of the case in his absence .","According to the record of the hearing before LOC on DATE , submitted by the ORG , the applicant and his lawyer did not object to the court 's examination of the case being started in the absence of witness PERSON record also shows that at that hearing the court read out , in accordance with LAW , the statements which PERSON had given on DATE during the preliminary investigation , as she was unable to attend the hearing for health reasons . No questions or additions followed from the applicant or his lawyer . In reply to a question by the judge , the applicant and his lawyer then expressly stated that they did not object to the examination of the case being concluded in PERSON 's absence . Having heard evidence from the victim PERSON and the prosecutor , the court ordered that the examination of evidence be concluded . The applicant and his lawyer made no comments in response . The court then proceeded to the pleadings .","In her statements made on DATE during the preliminary investigation , which the court read out at the hearing on DATE , PERSON stated that she had seen the applicant knock the victim N. off his feet , hit his head CARDINAL times against the pavement and run away . Being a doctor , she had examined the victim . She had seen that he was becoming unconscious and had explained what had happened to some people who were at a meeting of the residents of an adjacent block of flats . An ambulance had then been called .","The court heard evidence from witness PERSON , who stated that she had been at a meeting of the residents of a block of flats when PERSON had run in and said that the applicant had killed a man . Everyone had run out into the street and seen a man ( N. ) sitting on a bench . There was blood on his head . She had not noticed whether he was in a state of inebriation . He had been taken quickly to hospital in an ambulance . She had learned from PERSON that the applicant had hit the victim 's head against the pavement .","According to the report drawn up following the forensic medical examination which established the victim 's head injuries , the blunt injury to the head ( the fractures to the calvarium ) \u201c could have been caused by blows from the hand and\/or by being hit against the pavement \u201d .","The court considered that the applicant had denied beating the victim 's head against the pavement in an attempt to mitigate his responsibility .","The court examined the medical expert 's conclusion to the effect that the possibility of ORG 's having sustained the injury in the parietooccipital region as a result of falling down onto the pavement could not be ruled out . In assessing that conclusion the court stated as follows :","\u201c ... the court takes into account that this conclusion was made on the basis of the statements by the defendant PERSON , the assessment of which the court has already made above . Furthermore , the victim also had other head injuries which could not have been caused solely by falling from a standing position ( see case file , pp . ... ) . Therefore , the aforesaid expert conclusion ( see case file , p. ... ) did not refute the statements by the victims [ N. ] and [ B. ] and the witness [ E. ] . \u201d","NORP The court also examined statements by CARDINAL witnesses , who testified that the fight between the applicant and the victim and his wife had been brought about by the latter who , being drunk , had behaved offensively , and that the applicant had not beaten the victim 's head against the pavement . CARDINAL further witnesses stated that the victim and his wife had been in an inebriated state . The court considered that the above statements were aimed at helping the applicant to avoid responsibility for what he had done . Another witness , a member of the ambulance team who had examined the victim at the scene of the accident and taken him to hospital , testified that the victim N. had appeared to be in a state of inebriation . The court found that those statements were unreliable as there was no other corroborating evidence , for example blood - test results .","The Moskovskiy District Court of GPE held :","\u201c ... in view of the nature of the defendant 's actions \u2013 intentional beating of the victim 's head against the pavement DATE and in view of the gravity of the injuries received by ORG , the court considers it necessary to classify the defendant PERSON 's actions as intentional infliction of grievous bodily harm , causing danger to human life , under LAW of GPE . \u201d","The applicant appealed against the judgment on the ground , inter alia , that it had been based on statements by witness PERSON , who had not been examined at the trial . He claimed that he had acted in self - defence and in defence of the child .","On DATE GPE upheld the judgment on appeal . It heard submissions from the applicant and his counsel , the victim 's wife PERSON and the prosecutor . It stated , in particular , that the statements by witness PERSON , who was born in DATE , had been read out at the trial in accordance with LAW , since the trial court had lawfully found , on the basis of witness PERSON 's letter in which she referred to her age and poor health , that her appearance at the trial had been impossible . The trial court had taken account of the fact that PERSON and PERSON , previously unknown to each other , had consistently asserted that the defendant had beaten the victim 's head against the pavement more than once . Their statements had been corroborated by the conclusions of the forensic medical examination , and the fact that the victim PERSON had injuries to his face which , as the expert report confirmed , could not have been caused solely by falling and could have occurred before the fracture of the parietal bones . ORG held that in those circumstances the judgment had been correctly based on the statements by PERSON and PERSON , which were corroborated by the expert 's conclusions .","Subsequent applications lodged by the applicant for supervisory review proceedings to be initiated were unsuccessful .","Pursuant to LAW , in force at the material time , a first - instance court , in considering a case , must directly examine the evidence . In particular , it must question defendants , victims , witnesses and experts .","Under LAW , reading out at trial statements made by a witness at the preliminary investigation stage is allowed if the witness is absent from the hearing for reasons which make his or her appearance in court impossible .","Pursuant to LAW , the court must base its judgment only on the evidence which has been examined at the court hearing .","Article CARDINAL of the Code regulates the keeping of a trial record in the first instance court . It does not require a verbatim record of the trial to be kept , but \u201c a detailed record of the submissions \u201d . In practice , if a verbatim record exists , it is not attached to the official trial record . A party to the proceedings may challenge the accuracy of the official record within DATE after having received a copy of it ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-109076","languageisocode":"ENG","respondent":"NOR","branch":"CHAMBER","date":2012,"docname":"CASE OF ANTWI AND OTHERS v. NORWAY","importance":3,"conclusion":"No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional)","judges":"Erik M\u00f8se;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The first applicant arrived in GPE in DATE , where he obtained a forged passport and a birth certificate stating a false identity indicating that he was a NORP national named PERSON , born on DATE .","The second applicant is also of NORP origin . She had arrived in GPE in DATE , at DATE , with a view to be reunited with her father and CARDINAL siblings who still live in GPE . The first and second applicants met while she was travelling in GPE . The second applicant invited the first applicant to GPE and soon after they started cohabiting . They live in GPE .","In DATE the second applicant obtained NORP citizenship .","On DATE the first applicant applied for a work- and residence permit as a citizen of ORG ( hereinafter \u201c the ORG \u201d , established in DATE under an agreement bringing the CARDINAL member states of ORG ( EFTA ) \u2013 GPE , GPE and GPE DATE and the CARDINAL member states of ORG ( ORG ) together in a single internal market , without the ORG members having to join the ORG ) . On the basis of the forged NORP passport indicating a false identity , the NORP immigration authorities granted him a DATE residence- and work permit from CARDINAL DATE to DATE as an ORG national .","On DATE the couple had a daughter ( the third applicant ) .","In DATE the first applicant applied for NORP citizenship . The application was refused because the duration of his residence in GPE had been insufficient .","On DATE the couple married in GPE . According to the applicants , it was in that connection that the second applicant had become aware of the first applicant \u2019s true identity as he obtained a NORP passport .","The first applicant also used his false identity when he applied for renewal of his residence permit in DATE .","On DATE the first applicant was arrested in the GPE while travelling to GPE , as the NORP authorities discovered that his passport was forged . Subsequently , the first applicant provided his true identity to the NORP authorities . After DATE he returned to GPE .","On DATE ORG warned the first applicant about the possibility that he might be expelled from GPE .","On DATE the ORG decided that he should be expelled from GPE under section CARDINAL(CARDINAL)(a ) of LAW DATE ( according to which an alien may be expelled if he or she has committed serious or repeated violations of CARDINAL or more provisions of the Act ) . Reference was made to the fact that by having provided false information in connection with his application for work permit on DATE , he had violated section CARDINAL ( cf . section CARDINAL(CARDINAL)(b ) of the Act ) . He had submitted false information regarding his date of birth , identity and nationality . Whilst the first applicant had stated that his name was PERSON , a citizen of GPE , born on DATE , his true identity had been PERSON , a citizen of GPE , born on CARDINAL DATE . The ORG found that his expulsion would not be a disproportionate measure vis - \u00e0 - vis him for the purposes of section CARDINAL(CARDINAL ) . He was prohibited from re - entry for DATE ( section CARDINAL(CARDINAL ) ) .","The ORG also decided that these measures should be entered into ORG , with the consequence that the expulsion in principle would apply to the entire LOC area . He was given until DATE to leave GPE .","On DATE as the above decision , the ORG rejected the first applicant \u2019s application for work - permit and family reunification with the second and third applicants on the ground of his expulsion .","On DATE ORG rejected the first applicant \u2019s appeal against ORG decision of CARDINAL DATE . Like the ORG , it observed that the first applicant had given false information about his identity and in support of this had submitted a forged passport . He had further maintained his false identity in his respective applications for NORP citizenship , for renewal of his work permit , and for family reunification . He had accordingly repeatedly committed aggravated violations of the immigration rules .","The ORG found that the first applicant \u2019s expulsion would not constitute a disproportionate measure vis - \u00e0 - vis him , nor vis - \u00e0 - vis his closest family members . In addition to having obtained a work permit as an ORG citizen on the basis of false information about his identity with the support of a forged passport , the first applicant had failed to comply with the order to leave the country by DATE . Strong interests of general prevention militated in favour of expulsion .","With reference to LAW , the ORG found that the first applicant \u2019s personal links to GPE carried little weight . He had arrived in GPE at an adult age , had since returned to his home country and had also married the second applicant in GPE , which suggested that he still had a strong attachment to his country of origin . In light of the gravity of the offences , his family links to his spouse and child could not be decisive in the global assessment . Since his relationship with the second applicant had been established during his residence on the basis of false identity , neither he nor she could entertain any legitimate expectation about being able to continue to live together in GPE if the matter was discovered . No weight could be placed on the fact that the second applicant claimed that she had been ignorant about the first applicant \u2019s actual identity . Reference was made to the fact that she had been aware that he originally had a NORP background and that , in connection with their marriage in GPE on DATE , he had obtained a NORP passport .","The ORG further noted that the third applicant had been conceived and born while the first applicant resided on the basis of a false identity . Links established under circumstances as described above thus carried less weight . The fact that the applicants were living together as a family and that the first applicant had significant contacts with the third applicant , could not be decisive for the assessment of the case as a whole . Reference was made to the fact that the second applicant was originally of the same nationality as the first applicant and could more easily accompany the first applicant to their country of origin . In view of her young age , the child had the closest attachment to her parents and for this reason could eventually follow them to their home country . Also , the duration of the prohibition on re - entry was limited to DATE .","Referring to section CARDINAL of LAW DATE ( pursuant to which the LAW ought to be applied consistently with GPE \u2019s international legal obligations aimed at strengthening the foreigner \u2019s position ) and to section CARDINAL of LAW , which incorporated the LAW into NORP domestic law , the ORG found that the first applicant \u2019s expulsion would not be incompatible with LAW . In this connection the ORG had regard to the ORG \u2019s case - law , notably PERSON v. GPE , no . GPE , \u00a7 CARDINAL , DATE ; GPE v. GPE , no . CARDINAL , \u00a7 DATE , ORG CARDINALIX ; PERSON v. GPE , DATE , \u00a7 DATE , Reports of Judgments and Decisions DATE ; PERSON GPE , no . CARDINAL , \u00a7 DATE , DATE ) . ORG considered in detail the first applicant \u2019s arguments based on PERSON and PERSON v. the GPE ( no . CARDINAL , ORG CARDINALI ) and agreed with the ORG that it was not directly applicable to the present case .","In sum , the ORG was of the view that , having regard to the gravity of DATE would not be a disproportionate measure either vis - \u00e0 - vis the first applicant or vis - \u00e0 - vis his closest family members , for the purposes of section CARDINAL ) of LAW , LAW and LAW on the Rights of the Child .","NORP Throughout the above proceedings before the immigration authorities the first applicant was represented by a lawyer .","The first applicant challenged the above decision before ORG ( tingrett ) , pending which it was decided in DATE to stay his expulsion .","On DATE ORG quashed ORG decision of DATE as being invalid . ORG found it obvious that the conditions for expelling the first applicant set out in section CARDINAL(CARDINAL)(a ) had been fulfilled . The first applicant \u2019s offences of the immigration rules were aggravated and his expulsion was warranted by weighty considerations of general deterrence . According to the immigration authorities\u2019 practice , a prohibition on re - entry would normally be made permanent in such cases . The reason why the prohibition on reentry had been limited to a period of DATE in the present case was the fact that the first applicant had a DATE daughter ( the third applicant ) . The question thus arose whether the expulsion of the first applicant for DATE would be a disproportionate measure vis\u00e0 - vis his daughter despite the seriousness of his breaches of LAW .","In this regard ORG observed , inter alia , that the third applicant appeared to be an ordinary NORP girl and that it was not certain that it would be unproblematic for her to move to GPE , even though this was her GPE home country . One would have to take into account possible problems for her in the event of a return to GPE . If the first applicant were to be expelled to GPE for a period of DATE , his daughter would most probably loose the close contact she had with him . To deprive the child of her relationship with her father would be a serious measure and could have disturbing effects on the child \u2019s development . This would be so even if she were to have the opportunity to visit him in his home country . Although considerations of general prevention militated in favour of expulsion , the measure would be disproportionate vis - \u00e0 - vis the first applicant \u2019s daughter .","The ORG appealed to ORG ( lagmannsrett ) . At the request of the ORG , ORG decided on DATE to suspend the proceedings in the first applicant \u2019s case pending the national outcome in a parallel case ( PERSON v. GPE , no . CARDINAL , DATE ) .","In a judgment of DATE , ORG , by CARDINAL votes to one , upheld ORG decision of DATE .","The High Court observed that the first applicant \u2019s violation of LAW ought to be considered as serious . On CARDINAL different occasions he had submitted false information about his identity to the immigration authorities and had supported this with a forged passport . First he had been issued with a permit - an ORG permit - despite his not being entitled to such a permit . On the second occasion , his application for citizenship had been refused on other grounds , namely the duration of his residence in GPE . On the third and fourth occasions , his application had been rejected because his expulsion had already been decided . False information about one \u2019s identity made it very difficult for the authorities to exercise an effective control of a foreigner \u2019s entry into and residence in GPE . To a large extent the system had to be based on confidence . General preventive measures suggested therefore that breaches of the immigration rules should entail adverse consequences for the person concerned .","As to the question whether , nonetheless , there was such an attachment to GPE as to make the expulsion disproportionate , the High Court observed inter alia as follows .","The first applicant had grown up in GPE and had his family there . He had lived in GPE since the autumn of DATE . Since his attachment had been established on the basis of a residence permit that he had misled the authorities to grant him , he could not have had any legitimate expectation about being able to remain in GPE . ORG found it clear that expulsion would not be a disproportionate measure vis - \u00e0 - vis the first applicant .","As regards his wife , the second applicant , ORG observed that she had originated from GPE . She knew the culture and spoke the language of the country . Since DATE she had lived in GPE where she had her closest family , her father and CARDINAL siblings . She was a NORP citizen , spoke NORP and was working in GPE . In DATE she had started co - habiting with the first applicant in the belief that he held lawful residence in GPE as an ORG citizen . She thus had reason to believe that their marriage and his application for family reunification had not been necessary conditions for them to establish a reliable framework around their life together in GPE . She had become aware of her husband \u2019s true identity when they had married in DATE . Only when the false passport had been revealed in the GPE in DATE had she become aware that he was not a NORP national . Nonetheless , ORG found that her interests seen on their own could not render the expulsion a disproportionate measure .","The High Court found that a decisive consideration in this case was the interests of the daughter , the third applicant . She was DATE and was a NORP national . She was in DATE , active in sport and well established in her local environment . She only spoke NORP and a few words of her mother \u2019s language \u2013 Twi \u2013 and LANGUAGE . Her parents spoke primarily NORP at home . It had been submitted that she needed close follow - up in relation to school and that it was the first applicant who assumed this contact , staying at home after having lost his work permit . It was also him who followed up her hobbies .","According to CARDINAL medical statements dated DATE and DATE , respectively , by the third applicant \u2019s general medical practitioners , since she had been a child she had been suffering from rashes that worsened with heat .","The High Court pointed out that regard for the best interests of the child was a fundamental consideration to be taken into account in the proportionality assessment under LAW of LAW .","The High Court found it established that in the event of the first applicant \u2019s expulsion , either the family would be split , meaning that the second and third applicants would continue to live in GPE , or they would move with him to GPE . This would clearly not be in the best interests of the daughter , who was born and had grown up in GPE and was very attached to her father . Naturally she also had strong bonds to her mother .","It ought to be expected that an expulsion would involve financial , emotional and social strain on established family life . This applied not least when family life was interrupted as a result of the expulsion . Strain of this kind was not in itself a sufficient indicator that expulsion would be a disproportionately severe sanction .","The High Court further pointed to ORG judgment reported in PERSON ( \u201c GPE . \u201d ) DATE ( see PERSON , cited above , \u00a7 CARDINAL ) , in which GPE \u2019s international obligations were also assessed , including ORG judgment in PERSON and PERSON , cited above . In ORG view , the interests of a child who had no special needs for care and who had a remaining parent able to provide satisfactory care should not be a decisive consideration in assessing whether an expulsion measure should be implemented .","According to ORG , the third applicant was a normal girl for DATE and had no special care needs . It saw no reason to doubt that her mother would be able to provide her with satisfactory care on her own . Since the child \u2019s mother originated from the same country as the father , and had been on visits there with the daughter on CARDINAL occasions , the situation was favourable for regular contact or , in the alternative , for the family \u2019s settling in GPE . Consequently , the expulsion of her father with a prohibition on re - entry for a limited period would not be a disproportionate measure .","As to the duration of that period ORG was divided .","The majority did not find DATE inconsistent with current practice or disproportionate . It observed that the case involved serious violations of LAW . According to ORG judgment in the PERSON case , an expulsion would only be disproportionate when it resulted in an extraordinary burden ( see paragraph CARDINAL of ORG judgment quoted in PERSON , cited above , \u00a7 CARDINAL ) .","As to the present case , the High Court reiterated its finding above that the child \u2019s mother would be able to provide the child with satisfactory care of her own . Since the child \u2019s mother originated from the same country as the father and had visited the country with the daughter on CARDINAL occasions , there were favourable conditions for maintaining regular contacts or , in the alternative , for the whole family to settle in GPE . Thus the family had a better basis for maintaining family life and contact than would have been the case if the parents had not had the same country of origin .","The parents had informed the court that the daughter could not stay in GPE for extended periods since she suffered from a skin rash that was aggravated by heat . However , it was clear that she had been in GPE several times , most recently in DATE . In the majority \u2019s view , the information about the daughter \u2019s rashes had not been sufficiently documented and could not be relied upon .","The minority was of the view that the imposition of a DATE reentry ban would be too severe and disproportionate a measure and that DATE ban would be appropriate , observing inter alia the following .","The gravity of the first applicant \u2019s offences under LAW had been comparable to those committed by the applicant in the PERSON case , though less aggravated bearing in mind that he had not committed other offences in GPE and had not defied any prohibition on re - entry .","Since birth the daughter had been taken special care of by her father , who had followed her up in her recreational activities and through extensive contacts with her school . For a girl of DATE , and for her mother , it would make a considerable difference were reunification of the family to take place in GPE after DATE as compared to DATE . Taking into account the normal processing time for a request for family reunification , the daughter would be DATE before the family could resume cohabitation in GPE . DATE in between would be important years .","Even though there was a possibility for the family to follow the first applicant to GPE , this prospect was unrealistic . There was nothing to indicate that the family would easily find accommodation , work , etc . in GPE .","The minority agreed that the evidence submitted in support of the affirmation that the daughter had a skin rash aggravated by heat was weak . Nonetheless , on the basis of the CARDINAL statements form the daughter \u2019s CARDINAL general practitioners , it ought to be assumed that she had \u201c a recurrent skin rash . The diagnosis had been somewhat uncertain . \u201d As far as could be understood , CARDINAL only had the word of the parents to the effect that the rash had been aggravated by heat ; the general practitioners\u2019 statements on this point had apparently been based on information provided by the parents .","However , it was unnecessary to further consider this matter since in any event for the third applicant to be interrupted for DATE from her school , friends and hobbies in GPE in order to settle in a country where she neither knew the language nor the culture would be particularly unfortunate for her . Her knowledge of NORP would deteriorate and it would have social and educational consequences for her when returning to GPE at the age of DATE or DATE .","The minority in addition attached some weight to the second applicant \u2019s interests , notably the fact that she had entered into the relationship , had given birth to a child and had married the first applicant in the belief that it would be possible to continue family life in the country of which she was a national and where most of her remaining family lived . It further had regard to the fact that the first applicant had come to GPE because of his wife and that their cohabitation had been established almost immediately after his arrival in the country .","On DATE ORG Leave Committee of ORG ( H\u00f8yesteretts ankeutvalg ) unanimously refused the first applicant leave to appeal , finding that such leave was warranted neither by the general importance of the case nor by other considerations .","In the above - mentioned judicial proceedings , the first applicant was represented by a lawyer at each judicial level .","Section CARDINAL ( CARDINAL ) ( a ) of LAW DATE ( Act of DATE Nr CARDINAL , PERSON om utlendingers adgang til riket og deres opphold her \u2013 utlendingsloven \u2013 applicable at the material time and later replaced by LAW ) read :","\u201c Any foreign national may be expelled","a ) when the foreign national has seriously or repeatedly contravened CARDINAL or more provisions of the present LAW or evades the execution of any decision which means that the person concerned shall leave the realm . \u201d","Even when the conditions for expulsion pursuant to section CARDINAL of LAW were satisfied , expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family . LAW of LAW DATE provided :","\u201c Expulsion pursuant to the first paragraph , sub - paragraphs ( a ) , ( b ) , ( c ) , ( e ) and ( f ) of this section , shall not be ordered if , having regard to the seriousness of the offence and the foreign national \u2019s links to the realm , this would be a disproportionately severe measure vis - \u00e0 - vis the foreign national in question or the closest members of this person \u2019s family . \u201d","According to section CARDINAL ( CARDINAL ) , an expulsion order would be accompanied by a prohibition on re - entry into GPE . However , the person expelled might , on application , be granted leave to enter GPE . Furthermore , according to well - established administrative practice , when considering an application for leave to enter under LAW ( CARDINAL ) , ORG was under an obligation to consider the proportionality of its decision on prohibition on re - entry . The provision read :","\u201c Expulsion is an obstacle to subsequent leave to enter the realm . Prohibition on entry may be made permanent or of limited duration , but as a general rule not for a period of DATE . On application the person expelled may be granted leave to enter the realm , but as a rule not until DATE have elapsed since the date of exit . \u201d","Section CARDINAL ( CARDINAL ) provided inter alia :","\u201c Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit . If the order is not complied with or it is highly probable that it will not lead to the foreign national \u2019s leaving the realm , the police may escort the foreign national out . ... Any decision which applies to implementation is not considered to be an individual decision , cf . section CARDINAL ( CARDINAL ) ( b ) , of LAW . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88750","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2008,"docname":"CASE OF SAYA AND OTHERS v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Antonella Mularoni;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria","text":["The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively , and live in LOC .","On DATE the NORP Governor authorised the holding of DATE celebrations in LOC , located in LOC .","On DATE a group of people , including the applicants , gathered in the building of ORG and started to walk towards the amphitheatre for the DATE celebrations . They were stopped by police officers . Stating that they had obtained prior authorisation from the Governor , the group attempted to continue its march . The police then intervened to disperse the group ; the applicants were allegedly injured during this incident as a result of the force used by the police . According to the incident report , CARDINAL people , including the applicants , were arrested . The applicants were subsequently taken to ORG , where they were examined by a doctor . The medical reports in respect of PERSON , Mr PERSON , Mr PERSON , Ms PERSON , Mr PERSON and PERSON stated that there were no signs of ill - treatment on their bodies . As regards the remaining applicants , the following findings were indicated in the respective medical reports :","\u2013 \u015eeyho Saya : Tenderness on the back of the right leg and on the back .","\u2013 \u00c7etin Ta\u015f : Tenderness on the lower left side of the chest and pain while breathing . Tenderness and pain on the right side of the forehead . Possible fracture of the ribs on the left side of the chest .","\u2013 Ak\u0131n Do\u011fan : Scratches on the back .","\u2013 PERSON : Tenderness and bruises on the left shoulder and the left arm .","\u2013 Bahattin Bar\u0131\u015f Bilgi\u00e7 : Scratches on the right elbow , the right knee and hyperaemia on the left side of the chest .","The applicants were then taken into custody . They were released DATE .","NORP On different dates in DATE the applicants filed criminal complaints with ORG against those police officers who had allegedly used excessive force during their arrest .","On DATE ORG transferred the case file to ORG , seeking authorisation to bring criminal proceedings against the accused officers , pursuant to the provisions of PERSON on the prosecution of ORG .","On DATE ORG found that there was not enough evidence to initiate criminal proceedings against the accused officers and consequently refused to do so . On DATE the applicants appealed against this decision . In their appeal petition , they invoked a breach of LAW , arguing that the police interference had breached their freedom of assembly . On DATE ORG upheld the decision of ORG .","In the meantime , on DATE ORG , after examining a video recording of the incident , delivered a decision not to prosecute with regard to CARDINAL demonstrators \u2013 including the applicants \u2013 who had been involved in the incident on DATE . In reaching his decision , ORG stated that the demonstrators had been stopped by the police , although they had been walking silently along the pavement , without presenting a danger to the public or engaging in any violent activities . It was also indicated in the decision that , pursuant to section CARDINAL of the Assemblies and Marches Act ( Law no . CARDINAL ) , the police were under an obligation to warn the group out loud to disperse ; however , it was observed from the recording of the incident that they had failed to do so . In consequence , the public prosecutor held that the accused had not violated LAW CARDINAL ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111372","languageisocode":"ENG","respondent":"LVA","branch":"ADMISSIBILITY","date":2012,"docname":"VAN DEILENA v. LATVIA","importance":4,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["NORP The applicant , PERSON , is a NORP national who was born in DATE . According to the information provided by the applicant , she lives in LOC .","NORP The facts of the case as submitted by the parties may be summarised as follows .","NORP On DATE a public prosecutor dismissed a request submitted by ORG to institute criminal proceedings against the applicant , who had allegedly abused her powers as a bailiff .","ORG appealed against the decision to ORG . She also complained to the Head of ORG Member of ORG and to a member of parliament . The latter subsequently contacted ORG , asking him to pay particular attention to the appeal .","On DATE a prosecutor of ORG initiated criminal proceedings against the applicant in response to PERSON \u2019s complaint .","On DATE public prosecutor PERSON charged the applicant with abuse of her position as a bailiff .","On DATE the same prosecutor finished drafting the bill of indictment ( aps\u016bdz\u012bbas raksts ) in the applicant \u2019s case .","On DATE the criminal case was transferred to FAC for adjudication .","Information concerning the pre - trial investigation in the applicant \u2019s criminal case appeared in a number of articles published in various NORP newspapers and was broadcast on the radio and television before the first - instance court proceedings . According to the applicant , public statements made by public prosecutor D.K.V. on DATE , by prosecutors GPE on DATE , and by the judge of ORG , GPE , and prosecutor D.K.V. on DATE had undermined her right to be presumed innocent .","On DATE the applicant was found guilty of having abused her position as a bailiff and of fraud , and sentenced to DATE and CARDINAL months\u2019 imprisonment . She was arrested in the courtroom .","The applicant appealed against the lower court \u2019s judgment and requested , inter alia , that the preventive measure imposed on her pending the appeal proceedings be changed . The applicant indicated that she had suffered from bronchial asthma since childhood and therefore required special medication and adequate nutrition and living conditions , needs which would not be met in detention .","On DATE ORG lifted the detention order pending the outcome of the appeal .","On DATE ORG upheld the judgment of the first - instance court and ordered the applicant \u2019s imprisonment . The court noted that although the applicant \u2019s state of health was to be regarded as a mitigating circumstance , it did not warrant changing the sentence to a more lenient one .","On DATE ORG dismissed the applicant \u2019s appeal on points of law .","On DATE the applicant applied to ORG , requesting postponement of the execution of the prison sentence due to her poor state of health .","DATE the applicant was hospitalised . She was diagnosed as suffering , inter alia , from persistent bronchial asthma of moderate severity , emphysema and dermatitis . Medical treatment was recommended .","On DATE the ORG established that since DATE the applicant has been hospitalised because of the exacerbation of her bronchial asthma , and postponed the execution of the sentence until the applicant \u2019s discharge from hospital .","The applicant appealed against the decision , arguing that her state of health had deteriorated and that it would be necessary to continue rehabilitation and physical therapy even after her discharge from the hospital .","On DATE ORG examined the applicant \u2019s ancillary complaint . The public prosecutor participating in the hearing stated that the applicant had suffered from bronchial asthma since birth , and that , according to him , although the illness could not be completely cured it would be possible to provide the applicant with the recommended inhalation treatment and medication in prison .","The court dismissed the applicant \u2019s complaint , establishing that the applicant had been discharged from hospital on DATE and that there was no evidence that her state of health would preclude the execution of the sentence . It also noted that the applicant had not claimed that she could not receive the recommended medication in prison .","On DATE the applicant requested that ORG postpone the execution of the sentence because of a rehabilitation course she had to undergo DATE .","On DATE ORG dismissed the request .","From DATE the applicant underwent the planned rehabilitation course .","On DATE the applicant started serving her sentence in FAC .","In her initial complaint of CARDINAL DATE the applicant alleged that during the period from DATE until DATE she spent in ORG pending trial ( see paragraphs CARDINAL above ) , her state of health had deteriorated due to the poor detention conditions and absence of adequate medical assistance .","DATE the applicant was detained in FAC under a partly closed imprisonment regime .","In her complaint of CARDINAL DATE the applicant described her cell as small , insufficiently ventilated and dusty . She alleged that as a result in addition to CARDINAL types of asthma medication she also had to take other medication on a DATE basis , such as painkillers for headaches . Intensive use of her inhaler had had an adverse effect on her already ailing stomach .","As to access to emergency medical assistance , the applicant noted that when another detainee had called for emergency help , it had arrived TIME . The applicant was thus not sure whether the same would happen to her .","The applicant further stated that the doctor was available only once a DATE on appointment .","As to the access to medication , the applicant submitted that she had had to wait DATE to receive a gel for back pain . Since medication was distributed by the medical personnel twice a day , at TIME , and had to be used immediately , the applicant had problems in following the doctor \u2019s recommendations that she take her medication before or after meals . She also complained that she did not have access to physiotherapy , and that she could not follow the principles of ergonomics owing to the lack of appropriate furniture in her cell .","On DATE , after the applicant \u2019s complaint had been communicated to the Government , the applicant \u2019s husband wrote on behalf of the applicant to inform the ORG that the applicant wished to complain about the fact that she had not been separated from her fellow inmates . He also referred to a letter she had sent him in which she mentioned that her back pain and asthma had worsened , but that over DATE the prison medical personnel had been trying to take care of her . In particular , she was visiting the doctor on a DATE basis and had received vitamin injections in order to ease her back pain . She had also received herbal treatment to avoid excessive use of her inhalers , and was receiving additional pills for asthma on a DATE basis .","On DATE , in reply to the Government \u2019s observations , the applicant submitted further information which , according to her , demonstrated the poor quality of medical assistance in prison . The applicant stated that once a week she could visit the head doctor and a general practitioner , but that the latter had left the office in DATE . She further contended that the doctors had done nothing to prevent her from increasing the use of inhalers , and that her lungs had only been checked DATE after her arrival . She admitted having refused to have an x - ray because she had had CARDINAL before her imprisonment . The applicant also referred to the fact that if she wished to consult a doctor of her choice in FAC , it would take DATE to arrange .","The applicant admitted that the medical unit of ORG had some medication and vitamins , and that she received several types of medicine for asthma . She complained , however , that the purchase of medication was a lengthy procedure and therefore she usually purchased hers in advance ; however due to the above procedure once she had had to wait DATE to have a regular injection of vitamin B. She also mentioned that even though the head doctor had authorised the purchase of food supplements in DATE she had only obtained them in DATE , when tests carried out outside the prison showed that she was hepatitis C positive . With respect to the latter condition , the applicant noted that in accordance with the instructions of her doctor , she was taking special medication and refraining from using painkillers .","She also complained that her medical card did not contain complete records of the medication she had received from the nurses of the prison medical unit , such as painkillers and medication for an allergy .","The applicant further contended that she had had to resolve the problem of a worn out bed herself by obtaining a wooden plank from her fellow inmate , and that she did not go on her DATE walks because she was afraid of the other inmates who , according to her , considered her as a member of the law - enforcement institutions .","In DATE the applicant was transferred to a more lenient regime in FAC and in DATE she was transferred to the ORG open prison . It appears that in DATE , at the latest , she was released from prison .","Relying on the information provided by ORG , the applicant \u2019s cell , which she shared with another inmate , measured QUANTITY The cell was renovated DATE , and provided access to daylight , ventilation and toilet facilities . The applicant had an hour of outdoor exercise a day . On DATE the applicant was transferred to another regime under which time outside was not limited and she had access to an equipped gym .","Pursuant to the information provided by ORG , the applicant could make an appointment with any of the prison doctors ( CARDINAL generalists , a gynaecologist , a psychiatrist , an ear , nose and throat specialist and a dentist ) once DATE . For emergencies the doctors were on call from TIME to CARDINAL p.m. , and medical personnel were on duty in the prison TIME a day .","According to the medical records kept during the applicant \u2019s imprisonment in ORG ( which at the time of submitting the ORG \u2019s observations had lasted DATE ) the applicant had been examined by the prison doctors CARDINAL times ; on CARDINAL of those occasions she was examined at her own request . Throughout her stay the applicant had had all the necessary medication for her bronchial asthma , and had had her own inhaler .","At ORG request , on DATE the Inspectorate for Quality Control of Medical Care and ORG ( \u201c the MADEKKI \u201d ) assessed the adequacy of the medical assistance in FAC . The conclusion stated that the inmates could have consultations with various certified medical doctors according to a schedule , and that the assistance of certified medical personnel was available TIME a day , including a certified nurse specialised in respiratory diseases . In cases of necessity inmates were admitted to a public hospital , and they could receive out - patient medical treatment at the medical unit of the prison . The latter was certified and supplied with the necessary medication .","DATE the PERSON assessed the adequacy of the applicant \u2019s medical treatment in FAC . The PERSON report noted that the applicant suffered from moderate asthma , the treatment of which did not require permanent medical supervision . It also noted that , if necessary , the applicant could receive medical assistance in the medical unit of the prison , which was supplied with the necessary medication , including for bronchial asthma . The report concluded that the applicant \u2019s medical treatment in FAC had been adequate , and that treatment had been prescribed according to objective assessment of the applicant \u2019s health . The conclusion of the report was not contested .","In DATE the applicant had a DATE \u2019s leave from FAC during which she underwent various out - patient medical examinations , including a comprehensive blood test and a tomography , and consulted her practitioner and neurologist . A GPE analysis showed that the applicant had a spinal disc hernia . She was prescribed various medicines and physiotherapy . She was also diagnosed as hepatitis C positive .","In letters of CARDINAL and DATE the applicant asked for the assistance of ORG in obtaining a transfer to an open - type prison . The applicant contended that as a former bailiff she was entitled to separation from other inmates , but that in FAC she could not avoid contact with other prisoners during walks , while shopping at the prison shop , during workshops and doing laundry or other activities .","On the basis of that complaint the ORG launched an investigation in the framework of which he requested information from ORG and arranged for a representative from the ORG to visit the prison . On DATE the ORG informed the applicant that there were sufficient safeguards in place concerning the security of inmates in the prison , and that the applicant \u2019s health and life were not under threat .","Pursuant to section CARDINAL(CARDINAL ) of the Law on Criminal Procedure ( GPE likums ) , if deprivation of liberty has been imposed on a convicted person who has fallen ill with a serious condition that hinders the execution of a sentence , a court may suspend it until he or she recovers .","\u201c CARDINAL . ORG","...","The material conditions of sentenced prisoners , who were located in FAC and CARDINAL , could be considered as globally acceptable . The prisoners were accommodated in well - equipped dormitories measuring from CARDINAL to CARDINAL m\u00b2 , holding from CARDINAL persons each . Access to natural light , artificial lighting , ventilation and heating were adequate . Moreover , as a rule , the dormitories were in a satisfactory state of repair and cleanliness . Prisoners had easy access to outside toilets and showers , and had at their disposal a small kitchenette where they could prepare their own meals . Although of a relatively outdated design and presenting some signs of wear - and - tear , the detention units gave a pleasant - even homely - impression , with many plants and colourful decorations .","The regime of activities varied slightly according to the category to which the prisoners concerned belonged ( based on the length of the sentence ) . Differences consisted essentially in the degree of freedom of movement and access to privileges , such as extended visiting time . However , all prisoners benefited from a wide range of activities - sport in the well - equipped gym , education ( tailors vocational school programme , NORP and LANGUAGE courses , and a computer class ) , games , TV room , library \u201d .","The report of DATE to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( \u201c the ORG \u201d ) from CARDINAL DATE to DATE notes :","\u201c CARDINAL . At the outset , the ORG welcomes the fact that the old Prison hospital on the premises of FAC has been withdrawn from service , following the opening of a new Prison hospital at GPE on DATE . Further , it wishes to place on record the good quality of the health - care services provided to female prisoners at FAC ( including to mothers and their children ) \u201d ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75529","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2006,"docname":"CASE OF DO\u011eRUS\u00d6Z AND ASLAN v. TURKEY","importance":4,"conclusion":"Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient","judges":"","text":["The applicants were born in DATE and DATE and live in GPE and Hatay , respectively .","In DATE the applicants bought a plot of land in Hatay from LOC .","On DATE ORG conducted land consolidation proceedings and defined the coastline in the area where the applicants\u2019 land was located .","On DATE the Samanda\u011f Municipality , acting on behalf of the ORG , requested ORG to determine whether the applicants\u2019 plot of land was located within the coastline area . They claimed that , according to LAW , the land in question could not be owned by individuals and must only be used for public benefit purposes .","On DATE a group of experts , composed of a geomorphologist , a cartography engineer and an agricultural engineer , appointed by the court , inspected the applicants\u2019 land and concluded that it was located within the coastline area .","On DATE the GPE filed an action before ORG , on behalf of the ORG , requesting the annulment of the record in the title deed registry of the applicants\u2019 ownership . Furthermore , it requested the court to issue an injunction in order to prevent any transfer of that title until the end of the case .","On DATE the applicants filed a petition with the court objecting to the expert report of CARDINAL DATE . They argued that , as the expert report failed to take into consideration the flora of their property as well as the features and age of the surrounding buildings , it could not be taken as a basis for the annulment of the record in the title deed register . Moreover , they maintained that the GPE had not only disposed of the property as the original owner , but it had also encouraged the construction of buildings in the surrounding area , by implementing a development plan .","The court decided to obtain the opinion of another group of experts . On DATE , following a second inspection , the experts confirmed the first report . The summary of the report is as follows :","\u201c The first cadastral survey was carried out in the area on CARDINAL DATE . Thus , the title deed of the plot of land was registered before the coastal law came into force . The plot of land in question is covered by the development plan , approved by ORG . However , at the present time there is no construction on this plot .","The inspection carried out in the surrounding area reveals that the land is situated on the beach which is considered as the prolongation of the sea . The soil has a sandy texture . There is no vegetation on the land , as the soil is not suitable for cultivation .","The land is located within the coastline . Thus the plot of land in question has to be under the authority of the ORG . It can not be the subject of private property . \u201d","On DATE ORG upheld the request of the ORG and decided to annul the record in the title deed register . It also ordered the applicants to reimburse the legal expenses of the plaintiff .","The summary of the court \u2019s reasoning in its final decision is as follows :","\u201c At the time when the coastline had been determined , PERSON no . DATE on urbanism ( CARDINAL DATE ) was in force . The definition of the coastline found in LAW no . DATE is similar to the description in LAW ( Law no . CARDINAL ) . LAW provides that the coasts are under the authority of the ORG . This assertion is also established by LAW , LAW . Thus , coasts can not be subject to private property rights . As it is stated by ORG in its decisions dated DATE and DATE , the construction of buildings on these lands and the use of these buildings in good faith can not provide a derogation from this rule .","In the light of the above , the court decides to annul the record in the title deed registry , which was in the name of the applicants . Furthermore it decides to prolong the interim measure , until the court \u2019s decision becomes final . \u201d","The applicants appealed against this decision , arguing that they had a vested interest on this property that had to be respected by the authorities . Furthermore , they maintained that , according to the cadastral survey which was carried out in DATE , the plot of land was designated as an unrestricted , public area . Since the cadastral planning of a location can only be carried out once , there can not be any dispute concerning their property rights over the plot of land in question . Additionally , they claimed that the experts had erred in their establishment of the coastline .","On DATE , in view of the expert reports as well as the established case - law on this matter , ORG upheld the decision of ORG .","On DATE ORG dismissed the applicants\u2019 request for rectification of the decision as none of the conditions required by LAW were present in the case . The applicants were notified of the decision on DATE .","Article CARDINAL of the LAW provides :","\u201c The coasts are under the control and at the disposal of the ORG .","Public interest has priority with regard to the exploitation of the sea coasts , lake shores or river banks and the coastal strip along the sea and lakes .","Taking into consideration the purpose of their use , the width of coasts and coastal strips and the conditions in which individuals can make use of these locations shall be determined by law . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-97399","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2010,"docname":"CASE OF UDOVIK v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Isabelle Berro-Lef\u00e8vre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in PERSON .","On DATE the applicant \u2019s son was beaten to death . On DATE the prosecutors instituted criminal proceedings against PERSON , NORP , PERSON \u201c the defendants \u201d ) on suspicion of having murdered the applicant \u2019s son . On DATE the prosecutors issued a bill of indictment and referred the criminal case to courts .","According to the applicant , on DATE , in the framework of the criminal proceedings , she introduced a civil claim against the defendants for compensation and on DATE she amended her claim by increasing the claimed compensation . Despite the ORG \u2019s request , the applicant has failed to provide a copy of her claim . In their observations , the ORG submitted a copy of the applicant \u2019s civil claim dated CARDINAL DATE .","Following ORG CARDINAL remittals of the case for fresh consideration , on DATE the ORG found PERSON guilty of intentional infliction of grievous bodily injuries on the applicant \u2019s son that led to the latter \u2019s death and sentenced him to CARDINAL years\u2019 imprisonment . It further found C. , PERSON and NORP guilty of hooliganism , sentenced them to various terms of restriction of liberty and discharged them because the limitation period had expired . The court also allowed the applicant \u2019s civil claim and ordered M. and C. to pay her certain amounts in compensation for pecuniary and non - pecuniary damage .","On DATE ORG upheld the above judgment . There is no information in the case file whether the case was further considered on cassation .","In the course of the proceedings , CARDINAL forensic expert examinations were carried out , the hearings were CARDINAL times adjourned due to the GPE ORG and once due to the ORG failure to attend them . The hearings were also CARDINAL times adjourned due to the applicant \u2019s and the GPE ORG failure to attend them ( which delayed the proceedings to DATE approximately ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-95031","languageisocode":"ENG","respondent":"MLT","branch":"GRANDCHAMBER","date":2009,"docname":"CASE OF MICALLEF v. MALTA","importance":1,"conclusion":"Preliminary objections dismissed (victim, non-exhaustion of domestic remedies, ratione materiae);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient","judges":"Andr\u00e1s Saj\u00f3;Anatoly Kovler;Christos Rozakis;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Fran\u00e7oise Tulkens;Giorgio Malinverni;Giovanni Bonello;J\u00e1n \u0160ikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristaq Traja;Lech Garlicki;Matti Pellonp\u00e4\u00e4;Mihai Poalelungi;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vladimiro Zagrebelsky;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","The applicant is the brother of PERSON , who lived in an apartment above Mr F.","On DATE Mr F. applied for an injunction to restrain PERSON from hanging out clothes to dry over the courtyard of his apartment , thereby allegedly interfering with his property rights . Mr F. relied on the provisions of LAW in this connection .","On CARDINAL occasion following a hearing on the injunction , and after PERSON and her lawyer , PERSON , had already left the courtroom , the presiding magistrate changed the date of a future hearing , which had already been fixed . As a consequence , PERSON was not aware of the new date and was not present at the hearing . In her absence , on DATE the presiding magistrate issued the injunction in favour of Mr F.","According to NORP law as it stood at the time , PERSON had to institute proceedings in respect of the property claim preserved by the warrant within DATE of the issuing of the injunction ; otherwise the injunction would cease to have effect . Accordingly , on DATE , Mr F. lodged a writ of summons to start proceedings .","On DATE the relevant court trying the merits of Mr F. \u2019s civil action found against PERSON and issued a permanent injunction against her . On DATE , as no appeal had been lodged , the case became final .","On DATE PERSON instituted proceedings before ORG ( FAC ) in its ordinary jurisdiction , claiming that the injunction had been issued in her absence and without giving her the opportunity to testify ( see paragraph CARDINAL below ) .","By a judgment of DATE , ORG upheld her claim . It held that the audi alteram partem principle was applicable to the procedure for issuing an injunction . Referring to LAW , which stated that an injunction should not be issued unless the court was satisfied that it was necessary in order to preserve any right of the person seeking it ( see paragraph CARDINAL below ) , ORG held that the relevant test was a matter for the court \u2019s discretion . However , if the court found it necessary to hear the parties , they should be duly heard in accordance with the principles of natural justice . In the present case the court held that , through no fault of her own , PERSON had been denied her right to be heard and therefore the said warrant was null and void .","Mr F. appealed against the judgment of CARDINAL DATE . In the first - instance proceedings Mr F. had been assisted by PERSON , while at the appeal stage he had appointed the latter \u2019s son , PERSON was presided over by the Chief Justice , who sat with CARDINAL other judges . The Chief Justice was PERSON brother and PERSON uncle .","At the appeal hearing of CARDINAL DATE , the Chief Justice , after asking some questions , alleged that the conduct of PERSON was unethical , as he had impugned , without justification , the conduct of Mr F \u2019s lawyer . When it was noted that in the first - instance proceedings Mr F. had been represented by the Chief Justice \u2019s brother , the Chief Justice threatened to refer the case to \u201c the competent authorities \u201d . Furthermore , he dictated a note to this effect , which read as follows :","\u201c The court is asking PERSON , who himself is declaring that the date of the hearing at first instance had been changed when he and his client had already left the courtroom , why he insisted that the said change of date occurred consequent to a request by a lawyer . PERSON reply is : \u2018 I deduce so , as there were CARDINAL lawyers present : PERSON and myself.\u2019","... PERSON lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge , after he and his client had walked out of the courtroom . \u201d","PERSON said a few words in his own defence , but no oral submissions regarding the merits of the appeal were heard . The Chief Justice suspended the hearing and went to his chambers . TIME the lawyers of both parties were called into the Chief ORG \u2019s chambers . Explanations were heard and no further action appears to have been taken .","By a judgment of CARDINAL DATE , ORG found against PERSON and reversed the judgment of ORG . It held that principles of natural justice were not mandatory and could not be invoked in preliminary proceedings that were essentially conditional and of a temporary nature . Moreover , ORG did not agree with the issue of fact mentioned in the first - instance judgment , in respect of the change in date leading to PERSON absence at the hearing . In this respect the judgment repeated in part the note which had been dictated during the hearing DATE \u201c PERSON lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge , after he and his client had walked out of the courtroom \u201d . ORG further ordered the removal from the records of the case of a report which supported PERSON claim , which had been drawn up by the judicial assistant appointed by ORG .","On DATE PERSON instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction . Relying on LAW , she alleged that the President of ORG ( the Chief Justice ) lacked objective impartiality and that this had been manifest in the incident of CARDINAL DATE . Observing that ORG had denied facts which had already been proved , she further submitted that her right to a fair trial had been violated .","PERSON died on DATE , before her constitutional claim could be determined . On DATE the applicant intervened in the proceedings before ORG in his capacity as brother of the plaintiff .","In a judgment of DATE , ORG dismissed PERSON claim as frivolous and vexatious . Although it noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment , it rejected the ORG \u2019s plea of non - exhaustion of ordinary remedies and decided to exercise its constitutional jurisdiction . As to the merits , it made a thorough analysis of the notions and rights emanating from LAW , including equality of arms , but placed particular emphasis on the requirement of impartiality of ORG . However , it was unable to find any link between the incident of CARDINAL DATE and the content of the judgment of DATE . As confirmed by PERSON himself , the incident had been defused ; however , this could not have given PERSON or her lawyer any expectation that ORG would rule in her favour . Furthermore , ORG was composed of CARDINAL other judges , who had not been involved in the incident , and there had been no doubt that the judgment , which appeared to be well - reasoned , had been delivered by the bench as a whole .","NORP The applicant appealed to ORG .","By a judgment of DATE , ORG declared the appeal inadmissible . It reiterated that in accordance with LAW , no appeal lay against a decision dismissing an application as frivolous and vexatious .","Article CARDINAL of the Civil Code reads as follows :","\u201c ( CARDINAL ) Tenements at a lower level are subject in regard to tenements at a higher level to receive such waters and materials as flow or fall naturally therefrom without the agency of man .","( CARDINAL ) It shall not be lawful for the owner of the lower tenement to do anything which may prevent such flow or fall .","( CARDINAL ) Nor shall it be lawful for the owner of the higher tenement to do anything whereby the easement of the lower tenement is rendered more burdensome . \u201d","Article CARDINAL of Title VI , ORG of ORG , regarding warrants of prohibitory injunction , reads as follows :","\u201c ( CARDINAL ) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant .","( CARDINAL ) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant , and that prima facie such person appears to possess such right . \u201d","Under NORP law , as it stood at the time of the present case , a judge could be challenged or could abstain from hearing a case if one of the parties was represented by the former \u2019s son or daughter , spouse or ascendant . Nothing prevented a judge from sitting in a case if the representative in issue was his or her brother or nephew . The pertinent Articles of LAW , in so far as relevant , read as follows :","\u201c The judges may not be challenged , nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit , except for any of the reasons hereinafter mentioned . \u201d","\u201c ( CARDINAL ) A judge may be challenged or abstain from sitting in a cause \u2013","...","( e ) if he , or his spouse , is directly or indirectly interested in the event of the suit ;","( f ) if the advocate or legal procurator pleading before a judge is the son or daughter , spouse or ascendant of the said judge ; ... \u201d","The relevant LAW was amended in DATE to include another ground :","\u201c ( g ) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge ; ... \u201d","Article CARDINAL \u00a7 CARDINAL of LAW , in so far as relevant , reads as follows :","\u201c Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial ; ... \u201d","On the basis of the material available to the ORG in respect of the legislation of a relevant number of member ORG , it appears that there is widespread consensus on the applicability of Article CARDINAL safeguards to interim measures , including injunction proceedings . This conclusion is inferred from constitutional texts , codes of civil procedure and domestic case - law . In the majority of GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE GPE , GPE , GPE , GPE and GPE ) legislation suggests that LAW ( particularly the impartiality requirement ) apply to interim and injunction proceedings either because the legislation makes no distinction as to the stage or type of proceedings to which the safeguards apply ( such as the Constitutions of GPE , GPE , GPE and GPE ) , or because specific provisions governing interim measures reflect in some way the main safeguards embedded in DATE as , for example , legislation which specifies that provisions governing proceedings on the merits apply mutatis mutandis to injunction proceedings ( such as GPE ) , or will do so , unless otherwise stipulated ( such as GPE ) . The NORP courts have explicitly dealt with the issue ( see the judgments of ORG in the cases of ORG and ORG in ORG , of DATE ) and held that LAW was in principle applicable to interim proceedings ( r\u00e9f\u00e9r\u00e9 ) .","Article CARDINAL of LAW guarantees the right to a fair trial . Unlike LAW , the provision of the LAW does not confine this right to disputes relating to \u201c civil rights and obligations \u201d or to \u201c any criminal charge \u201d and does not refer to the \u201c determination \u201d of such . In PERSON v. ORG ( ECJ , Case C CARDINAL\/CARDINAL , CARDINAL DATE ) ORG ( \u201c the ECJ \u201d ) held that provisional measures given ex parte without hearing the defendant could not be recognised according to its case - law . This implies that such safeguards should apply also outside the context of final decisions ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-60483","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2002,"docname":"CASE OF GRONUS v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["On DATE a chimney of a heating plant located in P. and belonging to ORG , adjacent to the applicant 's horticultural farm , partly collapsed , causing damage in the farm . Apparently the applicant requested the ORG to pay compensation for damage which he had sustained . As his efforts to obtain compensation for damage failed , on CARDINAL DATE he lodged an action against PERSON , the administrator of the ORG - owned farm in P. , with ORG , claiming compensation for the damaged vegetables and equipment . The applicant acted on behalf of \u201c PERSON limited liability company of which he was the sole shareholder .","On DATE ORG decided that it lacked jurisdiction to examine the case and ordered that the case be examined by ORG . On DATE ORG decided that the decision of DATE was premature in that ORG had failed to establish whether the defendant had been correctly identified by the applicant and , also , had failed to identify the amount of the compensation sought by the applicant , which was relevant for the determination of a court competent ratione materiae to examine the case . The court transmitted the case to ORG of ORG .","On DATE the applicant lodged an appeal , submitting that the courts had limited themselves to transferring the case - file from one to another , and that there was no hope that any decision on the merits of the case would be taken in a reasonable future . On DATE the court ordered the applicant to pay the court fee for the appeal . On DATE the applicant requested to be granted exemption from the court fees . On DATE ORG allowed his request .","On DATE the ORG allowed the applicant 's appeal and quashed the decision of CARDINAL DATE , finding that it was not in conformity with the law in that ORG should have established itself the facts relevant for the decision which court had jurisdiction ratione materiae to consider the case .","On DATE a hearing was held before ORG . The court decided again that it lacked jurisdiction to entertain the case and on DATE transmitted the case to ORG of ORG . On DATE the judge of that court ordered that the case be examined by ORG of ORG . On DATE the case was registered at ORG of ORG .","Subsequently the applicant waited for an unspecified time for this decision to be served on him . On DATE he complained to the President of ORG about the lack of progress in the proceedings . In reply , by a letter of DATE , the Judge - Supervisor in Civil Proceedings of ORG acknowledged that the proceedings were slow , in particular as there had been no progress since the case had been transferred to ORG of ORG on DATE . It had been only on DATE that the judge had ordered the applicant to pay the court fees . However , there was no confirmation in the case - file that this order had been properly served on the applicant , which prevented the court from proceeding further .","In a reply of DATE to the applicant 's complaint about the lack of progress in the proceedings , the President of ORG informed him that his case was pending before that court . The President further noted that the problems with identifying the court competent to entertain the case had been in part caused by the fact that the applicant had lodged the action against a natural person , whereas his claim originated in fact from acts for which a ORG entity could be held liable . However , the applicant 's complaint was in part justified , as the case - file had been transmitted to the competent court on DATE and a period of DATE of inexplicable inactivity followed .","On DATE the applicant complained to the Minister of ORG about the lack of progress in the proceedings . His complaint was subsequently transmitted for reply to ORG . On DATE the Judge - Supervisor in Civil Proceedings of ORG acknowledged that the proceedings had not been conducted speedily . It was further stated that on DATE the applicant had been ordered to pay the court fees . On DATE he had requested to be granted exemption from the court fees and subsequently the court ordered him to submit information as to his income . As the applicant had failed to do so , on DATE the court ordered that the applicant 's income be established on the basis of certain documents to be furnished by ORG . On DATE the court requested ORG to issue the relevant information . ORG replied on DATE . Consequently , the court decided to grant the applicant exemption from the court fees .","At the hearing of CARDINAL DATE the defendant 's lawyer raised objections as to the applicant 's capacity to represent the ORG company . Consequently , the court requested the applicant to submit , within the DATE time - limit , documents to prove that he was authorised to represent the company . On DATE the court decided to stay the proceedings since the applicant had failed to comply with that order . On DATE the applicant submitted the relevant documents to the court . On DATE the court resumed the proceedings .","From DATE until DATE the judge rapporteur was ill . In DATE the case was taken over by another judge .","At a hearing on DATE both parties presented their oral pleadings and expressed their willingness to reach a friendly settlement . The court stayed the proceedings . On DATE the applicant requested the court to resume the proceedings since no friendly settlement had been reached .","On DATE the court resumed the proceedings and partly quashed the applicant 's exemption from the court fees . Furthermore , the court dismissed the applicant 's request to appoint a lawyer paid under the legal aid scheme . On DATE the applicant appealed against this decision . On DATE the ORG apparently ordered that the applicant 's legal aid request be re - examined by ORG .","On DATE ORG again decided to dismiss the applicant 's request to have a lawyer appointed to the case . The applicant appealed and on DATE the ORG decided that the applicant 's request be re - examined by ORG . On DATE ORG again decided to dismiss the applicant 's request . The applicant appealed and on DATE the ORG dismissed his appeal .","A hearing on the merits of the case was held on DATE . At this hearing the court ordered that further evidence concerning the damage should be submitted by the applicant . On DATE the applicant submitted the additional evidence . At the hearing held on DATE the court decided to appoint an expert on agriculture in order to estimate the sum of compensation for destroyed plants . On DATE the expert 's opinion was submitted to the court . On DATE the court held the hearing in the case and questioned the expert .","On DATE the ORG gave a decision awarding the applicant compensation in the amount of QUANTITY PLN ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-81912","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2007,"docname":"CASE OF ANDREI GEORGIEV v. BULGARIA","importance":3,"conclusion":"Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 3;Violation of Art. 13+3;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["On DATE an individual was found bleeding in front of a discotheque with a broken jawbone . The applicant had previously had a confrontation with that person in the discotheque and both had been seen leaving at approximately the same time .","The victim 's father filed a complaint with the police on an unspecified date naming the applicant as CARDINAL of the perpetrators of the beating .","On DATE a police enquiry or a preliminary investigation was opened into the incident . In a decision of DATE , ORG brought charges against the applicant and another individual for median bodily injury ( Article CARDINAL of LAW ) and ordered their arrest . A police report of DATE considered them to have absconded as they had not been found at their known addresses . The applicant claimed , however , that the police never visited his official residence nor sent him a notice inviting him to appear for questioning . Thus , he claimed not to have been informed of the proceedings or that the authorities were looking for him .","On DATE the applicant was placed on the national mostwanted list .","The applicant claimed , which the Government did not expressly challenge , that during this period he presented himself to the authorities and was charged with offences stemming from CARDINAL other preliminary investigations which were being conducted against him at the time . In spite of being on the national most - wanted list , the authorities did not arrest him .","In a decision of CARDINAL DATE ORG suspended the criminal proceedings until the arrest of the applicant .","NORP The applicant claimed that after he found out that criminal proceedings for median bodily injury had been initiated against him he presented himself voluntarily at the NORP police station on DATE , accompanied by his attorney . He was detained immediately , separated from his attorney and , soon thereafter , transferred to the ORG detention facility . The fact that the applicant had presented himself to the police on his own accord was reflected in a police report of DATE . The applicant was not allowed further access to his attorney on DATE .","On DATE , DATE , the applicant was charged with median bodily injury .","While in detention , the applicant was questioned on CARDINAL occasions without his attorney , even though he requested her presence . He refused to give any statements to the authorities .","On unspecified dates , CARDINAL witnesses were questioned by the authorities of which the applicant was not informed .","The preliminary investigation against the applicant was concluded on DATE . The resulting report of the investigator , which proposed that the criminal proceedings be discontinued due to insufficient evidence that the applicant was the perpetrator , was presented to the latter on DATE .","On DATE , DATE , ORG terminated the criminal proceedings against the applicant on the grounds that the accusation was not proven ( Article CARDINAL , \u00a7 CARDINAL ( CARDINAL ) of LAW ) .","The applicant filed an appeal against his detention on DATE he was detained \u2013 DATE . He claimed that there was no risk that he would abscond because he lived together with his family at a known registered address and had voluntarily presented himself to the authorities . The applicant also challenged the lawfulness of the order for his arrest and detention , because it had been issued solely on the basis of the complaint of the victim and he had never been invited to present himself to the authorities for questioning .","The applicant 's appeal was examined on DATE , DATE . In a decision of DATE ORG dismissed the applicant 's appeal on the basis that he had absconded and had been placed on the national most - wanted list as a result . From TIME of the hearing it becomes apparent that there was some degree of confusion on the part of the parties as to whether the applicant had already been placed in pre - trial detention or was still being held in preliminary TIME police detention . The applicant claimed , which the Government did not expressly challenge , that the police report evidencing that he had presented himself voluntarily to the authorities on DATE had not been presented for consideration by the court . In addition , he claimed that the examination of his appeal had been transferred to a new formation at the very TIME and that the presiding judge had previously ruled against him in a different set of criminal proceedings whereby he had imposed on him an administrative sanction .","Following the hearing on DATE , the applicant 's attorney filed CARDINAL petitions with the court seeking , inter alia , ( CARDINAL ) to be allowed access to the investigation file , ( CARDINAL ) a correction to the TIME of the hearing so that they reflected the applicant 's assertions that he had voluntarily presented himself to the authorities , and ( CARDINAL ) a copy of said TIME . Only the last request was granted .","NORP The applicant appealed against the decision of ORG on DATE .","The appeal was examined and dismissed in a decision of DATE by ORG . During the hearing the prosecution presented the domestic court with a list of pending criminal investigations against the applicant which allegedly supported their argument that he might re - offend or abscond . His lawyer , however , challenged that assertion and noted that in some of those cases the applicant had presented himself to the authorities during the period when he was allegedly in hiding ( see paragraph CARDINAL above ) . In any event , the court found , in spite of the fact that the applicant had voluntarily presented himself to the authorities , that there was sufficient evidence that he might abscond or re - offend considering that he had already absconded in the context of the proceedings , had been placed on the national most - wanted list , had a prior conviction and there were other criminal proceedings opened against him . The court also considered that there was sufficient evidence that the applicant had perpetrated the offence with which he had been charged .","The applicant filed a second appeal against his detention on DATE , which was examined on DATE . In a decision of DATE ORG found in favour of the applicant and ordered his release on bail , which was to be paid within DATE .","NORP The applicant was released on DATE after he deposited the bail amount .","The applicant was held at the ORG detention facility from DATE to DATE .","The applicant contended , which the Government challenged , that ( CARDINAL ) for the duration he was detained together with another CARDINAL individuals in the same cell , ( CARDINAL ) the cell had an area of CARDINAL sq.m . , ( CARDINAL ) there were no windows or lighting , the cell being illuminated only from the light in the corridor , and ( CARDINAL ) there were no beds , but just wooden racks on which to sleep and that the bed covers were lice - ridden .","The relevant provisions of LAW ( the \u201c ORG \u201d ) and the NORP courts ' practice before DATE are summarised in the ORG 's judgments in several similar cases ( see , among others , ORG v. GPE [ ORG ] , no . ORG , \u00a7 \u00a7 DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , \u00a7 \u00a7 DATE , DATE ; and ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ECHR CARDINAL ( extracts ) ) .","As of DATE the legal regime of detention under the ORG was amended with the aim to ensure compliance with ORG ) . The effected amendments and the resulting practice of the NORP courts are summarised in the ORG 's judgments in the cases of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) and GPE v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) .","The ORG and ORG of DATE ( the \u201c ORG \u201d : title changed in DATE ) provided , as in force at the relevant time , that the ORG was liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts in specific , exhaustively listed situations ( sections CARDINAL - CARDINAL ) .","In respect of conditions of detention , the relevant domestic law and practice under the ORG at the relevant time has been summarised in the cases of PERSON v. PERSON ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ) and PERSON ( cited above , \u00a7 \u00a7 DATE ) .","In respect of the regime of detention , section CARDINAL of the ORG provides , as relevant :","\u201c The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for [ an ] unlawful :","pre - trial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds ;","NORP indictment for a criminal offence if ... the opened criminal proceedings have been terminated [ on the ground ] that the act was not perpetrated by the [ accused ] person ... \u201d","Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the ORG have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 DATE \u0433. \u043f\u043e \u0433\u0440.\u0434. \u2116 CARDINAL \u0433. , PERSON and PERSON \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 CARDINAL \u0433. \u043f\u043e \u0442. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG \u043d\u0430 \u0412\u041a\u0421 ) .","The reported case - law of ORG under section CARDINAL , item CARDINAL of the ORG prior to DATE suggested that the term \u201c lack of lawful grounds \u201d referred to unlawfulness under domestic law ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 ORG CARDINAL\/CARDINAL \u0433. \u043e\u0442 DATE \u0433. PERSON \u2116 DATE \u0433. \u043d\u0430 \u0412\u041a\u0421 , \u0440\u0435\u0448\u0435\u043d\u0438\u0435 DATE CARDINAL\/CARDINAL \u0433. \u043e\u0442 DATE \u0433. \u043f\u043e PERSON \u2116 CARDINAL\/CARDINAL \u0433. \u043d\u0430 ORG ) .","At the same time , the reported case - law during the same period under LAW , item CARDINAL of the ORG excluded its applicability to instances when the criminal proceedings were discontinued at the pretrial stage on the grounds that the accusation was not proven ( \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL\/CARDINAL \u0433. \u043e\u0442 DATE \u0433. \u043f\u043e PERSON \u2116 CARDINAL\/CARDINAL \u0433. \u043d\u0430 \u0412\u041a\u0421 GPE \u0433.\u043e. ) .","On DATE ORG of ORG ( the \u201c ORG \u201d ) adopted ORG decision no . CARDINAL ( \u0422\u044a\u043b\u043a\u0443\u0432\u0430\u0442\u0435\u043b\u043d\u043e \u0440\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 CARDINAL \u043e\u0442 CARDINAL \u0433. \u043f\u043e \u0442. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG \u043d\u0430 \u0412\u041a\u0421 ) , which is binding on the domestic courts . It decreed the following under item CARDINAL of the said decision :","\u201c The respective organ [ of the investigation , the prosecution or the courts ] is also liable in the instances when the criminal proceedings have been terminated on the grounds that the accusation was not proven . The grounds for discontinuing [ criminal proceedings ] under LAW , LAW ( CARDINAL ) of LAW corresponds to the basis for seeking damage under LAW , item CARDINAL , alternative CARDINAL of the ORG , namely ' ... that the act was not perpetrated by the [ accused ] person ' \u201d .","ORG also decreed the following under item CARDINAL of the said decision :","\u201c The pre - trial detention is unlawful when it does not adhere to the requirements of [ LAW ] .","The ORG is liable under section CARDINAL , item CARDINAL of the ORG when the pre - trial detention has been revoked as unlawful , irrespective of the [ subsequent ] development of the pre - trial and court proceedings . In such case , the compensation is determined separately .","If the person has been acquitted or the opened criminal proceedings have been terminated , the ORG is liable under LAW , item CARDINAL of the ORG . In such case , the compensation for non - pecuniary damages includes the damage [ stemming ] from the unlawful pre - trial detention . If pecuniary damages have been suffered , the compensation for them is not included , but is awarded separately taking into account the particulars of each given case \u201d .","The statute of limitations for actions for damage under the ORG is DATE . In respect of persons seeking redress for criminal proceedings opened against them that are later terminated on the grounds that the act was not perpetrated by him or her , the time limit begins to run from the date of the decision for termination of the proceedings ( section CARDINAL of ORG in connection with paragraph CARDINAL of the Final Provision of the ORG and ORG CARDINAL \u043e\u0442 CARDINAL \u0433. \u043f\u043e \u0442. \u0433\u0440. \u0434. \u2116 CARDINAL \u0433. , ORG \u043d\u0430 \u0412\u041a\u0421 ) .","The ORG visited GPE in DATE , DATE , DATE , DATE and DATE . All but its most recent visit report have since been made public .","The ORG detention facility was visited in DATE , but the ORG report of that visit has not been made public .","There are general observations about the problems in all investigation service establishments in the DATE , DATE and DATE reports , which are summarised in the ORG 's judgment in the case of Dobrev ( cited above , \u00a7 \u00a7 DATE and \u00a7 \u00a7 DATE ) ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-91418","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2009,"docname":"CASE OF VEREIN DER FREUNDE DER CHRISTENGEMEINSCHAFT AND OTHERS v. AUSTRIA","importance":4,"conclusion":"No violation of Article 6 - Right to a fair trial;No violation of Article 13 - Right to an effective remedy","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens","text":["The first applicant is a religious community established in GPE on DATE , and the CARDINAL other applicants are members of it . The second applicant is the chair of the GPE branch of the first applicant , and the fifth applicant is its deputy chair and is a minister in GPE . The third and fourth applicants are also members of the first applicant \u2019s GPE branch . The second to fourth applicants are NORP nationals , and the fifth applicant is a NORP national . The second to fifth applicants live in GPE .","On DATE the applicants requested the Federal Minister for Education , Arts and Sports ( MONEY GPE , ORG ) to recognise the first applicant as a religious society ( Religionsgesellschaft ) under LAW ) .","On DATE ORG found that under LAW , a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that LAW were met and that a decision on this matter should be subject to review by the NORP courts ( see ORG der PERSON and Others v. GPE , no . CARDINAL , \u00a7 CARDINAL , DATE ) .","On DATE the applicants filed an application with ORG ( Verwaltungsgerichtshof ) against the Minister \u2019s failure to give a decision ( PERSON ) .","On DATE ORG rejected the application . It noted that , upon the entry into force of LAW ( Bundesgesetz \u00fcber die PERSON religi\u00f6sen GPE , hereafter referred to as \u201c the DATE LAW \u201d ) on DATE , the ORG request for recognition under LAW had to be dealt with as a request under section CARDINAL ) of the DATE LAW . Thus , the DATE time - limit for the Minister to give a decision had started again on DATE and consequently there had been no failure to give a decision on the part of the Minister . ORG decision was served on the applicants\u2019 lawyer on DATE .","On DATE the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of the DATE LAW as from DATE . The first applicant , however , was not thereby granted legal personality as a religious society within the meaning of the DATE LAW .","NORP On DATE the applicants lodged a complaint against that decision with ORG ) , arguing that the refusal to confer legal personality to the first applicant under LAW was in breach of LAW .","On DATE the Federal Minister submitted observations in reply , which arrived at ORG on DATE .","Meanwhile , on DATE , the applicants had filed another request with the Federal Minister for the first applicant to be recognised as a religious society under LAW .","On DATE the Federal Minister dismissed the applicants\u2019 request of DATE . It found that , pursuant to section CARDINAL ) of the DATE LAW , a religious community could only be recognised as a religious society under LAW if it had already existed as a registered religious community for a minimum of DATE .","On DATE the applicants lodged a complaint against that decision with ORG . They submitted that the transitory provisions in the CARDINAL Religious Communities Act , which introduced new conditions for recognition as a religious society under LAW were unconstitutional as being in breach of LAW .","On DATE the Federal Minister submitted observations in reply to ORG .","On DATE ORG dismissed the applicants\u2019 complaints of CARDINAL DATE and DATE . It found that the DATE waiting period for registered religious communities as a precondition for a successful application for recognition as a religious society under LAW was in conformity with LAW . In particular , it served the legitimate aim of ensuring that the competent authority could verify during this period of time whether the religious community was ready to integrate into the existing legal order , for example , whether it performed unlawful activities as a consequence of which legal personality had to be withdrawn ( section GPE ) and section QUANTITY ) of the DATE LAW ) . Examples of such unlawful activities were incitement to commit criminal offences , endangering the psychological development of minors , violating the psychological integrity of persons or using psychotherapeutic methods to disseminate its religious beliefs . That decision was served on the applicants\u2019 lawyer on DATE .","Under LAW , everybody is granted freedom of conscience and belief . The enjoyment of civil and political rights is independent from religious belief ; however , the manifestation of religious belief may not derogate from civic obligations .","Article CARDINAL provides that recognised churches and religious communities have the right to manifest their faith collectively in public , to organise and administer their internal affairs independently , and to remain in possession of acquired institutions , foundations and funds dedicated to cultural , educational and charitable purposes ; however , they are , like all other societies , subordinate to the law .","Article CARDINAL entitles the supporters of non - recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra ORG mores .","Article CARDINAL \u00a7 CARDINAL states that GPE undertakes to ensure full and complete protection of life and liberty to all inhabitants of GPE without distinction on the basis of birth , nationality , race or religion .","Article CARDINAL \u00a7 CARDINAL guarantees to all inhabitants of GPE the right to manifest publicly and privately their thought , religion and beliefs , unless these are incompatible with the protection of public order or morals .","Section CARDINAL of the LAW provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the LAW , namely that their teaching , services and internal organisation , as well as the name they choose , do not contain anything unlawful or morally offensive and that the setting up and existence of CARDINAL community of worship ( GPE ) satisfying the statutory criteria is ensured .","Section CARDINAL provides that if the above conditions are met , recognition is granted by the Minister for Religious Affairs ( LOC ) . ORG has the effect that a religious society obtains legal personality under public law ( juristische Person \u00f6ffentlichen PERSON ) and enjoys all rights which are granted under the legal order to such societies . Sections CARDINAL et seq . regulate the setting up of communities of worship , membership of them , delimitation of their territory , and their bodies and statutes . Sections CARDINAL deal with the nomination of religious ministers ( PERSON ) of religious societies , the qualifications such persons must have and how their nomination must be communicated to the authorities . Section CARDINAL provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the LAW .","NORP The legal personality of ORG is , on the one hand , regarded as historically recognised , and , on the other hand , explicitly recognised in an international treaty , the ORG between the Holy See and GPE ( Federal Law Gazette II , No . CARDINAL\/CARDINAL \u2013 Konkordat zwischen dem Heiligen DATE LOC , BGBl . PERSON . CARDINAL\/CARDINAL ) .","The following are examples of special laws recognising religions societies :","( a ) Act on ORG , ORG of GPE , No . CARDINAL\/CARDINAL ( PERSON \u00fcber die \u00e4u\u00dferen PERSON , RGBl . CARDINAL ) ;","( b ) Act of DATE on the recognition of followers of ORG [ according to the NORP rite ] as a religious society , ORG of the NORP Empire No . CARDINAL ( Gesetz vom CARDINAL . DATE , betreffend die Anerkennung der Anh\u00e4nger des NORP [ nach hanefitischen ORG ] als Religionsgesellschaft , RGBl . Nr . CARDINAL\/CARDINAL ) ;","( c ) Federal Act on LAW , ORG . ORG PERSON CARDINAL . DATE \u00fcber die \u00e4u\u00dferen PERSON , BGBl . Nr . ORG ) ;","( d ) Federal Act on LAW in GPE , ORG . DATE ( Bundesgesetz \u00fcber die \u00e4u\u00dferen PERSON in PERSON , BGBl . PERSON . CARDINAL\/CARDINAL ) ;","( e ) Federal Act on LAW in GPE , ORG . CARDINAL ( Bundesgesetz \u00fcber \u00e4u\u00dfere PERSON der PERSON in PERSON , BGBl . Nr . CARDINAL ) .","DATE the competent ministers recognised a further CARDINAL religious societies .","The Religious Communities Act entered into force on DATE . Pursuant to section CARDINAL(CARDINAL ) of the LAW , the Federal Minister for Education and ORG has to rule in a formal written decision ( Bescheid ) on the acquisition of legal personality by the religious community . In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned ( section CARDINAL(CARDINAL ) ) . The religious community has the right to call itself a \u201c publicly registered religious community \u201d .","Section CARDINAL specifies the necessary contents of the statutes of the religious community . Among other things , they must specify the community \u2019s name , which must be clearly distinguishable from the name of any existing religious community or society . They must further set out the main principles of the religious community \u2019s faith , the aims and duties deriving from it , the rights and duties of the community \u2019s adherents , including the conditions for terminating membership ( it is further specified that no fee for leaving the religious community may be charged ) , how its bodies are appointed , who represents the religious community externally and how the community \u2019s financial resources are raised . Lastly , the statutes must contain provisions on the liquidation of the religious community , ensuring that the assets acquired are not used for ends contrary to religious purposes .","Under LAW , the Federal Minister must refuse to grant legal personality to a religious community if , in view of its teachings or practice , this is necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights and freedom of others ; this is in particular the case if its activities involve incitement to commit criminal offences , obstruction of the psychological development of adolescents or undermining of people \u2019s mental integrity , or if the statutes do not comply with section CARDINAL .","Under LAW , the religious community must inform the Federal Minister for Education and ORG of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay . The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section CARDINAL .","Section CARDINAL specifies the reasons for termination of a community \u2019s legal personality . Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked . Reasons for revoking legal personality are set out in subsection ( CARDINAL ) : for example , if the reasons for granting legal personality no longer subsist or if for DATE no bodies representing the religious community externally have been appointed .","The Act only regulates the granting of legal personality . Once legal personality has been granted to a religious community , it may pursue the activities referred to in its statutes . There are no specific laws in GPE regulating the acquisition of assets by religious societies or communities , the establishment of places of worship or assembly , or the publication of religious material . However , provisions which contain explicit references to religious societies are spread over various statutory instruments ( see below ) .","Since the entry into force of the DATE LAW on DATE , non - recognised religious associations may be granted legal personality upon application . A previous application for recognition under LAW is to be dealt with as an application under LAW pursuant to section CARDINAL(CARDINAL ) .","Section CARDINAL(CARDINAL ) of the DATE LAW establishes additional criteria for a successful application under LAW , such as the existence of the religious association for DATE in GPE and for DATE as a registered religious community ; a minimum number of CARDINAL adherents per CARDINAL members of the NORP population ( at the moment , this means CARDINAL persons ) ; the use of income and other assets for religious purposes , including charity activities ; a positive attitude towards society and the ORG ; and no illegal interference as regards the community \u2019s relationship with recognised or other religious societies .","In various NORP laws specific reference is made to recognised religious societies . The following list , which is not exhaustive , sets out the main instances .","Under section CARDINAL of ORG ( ORG ) , representatives of recognised religious societies may sit ( without the right to vote ) on regional education boards .","Under LAW ( Privatschulgesetz ) , recognised religious societies , like public territorial entities , are presumed to possess the necessary qualifications to operate private schools , whereas other persons have to prove that they are qualified .","Under section CARDINAL(CARDINAL ) of LAW , ordained priests , persons involved in spiritual welfare or in religious teaching after graduation from theological studies , members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and , under LAW of LAW , are also exempt from alternative civilian service .","Under sections CARDINAL and CARDINAL of LAW ( ORG ) , ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians , and under section CARDINAL(CARDINAL ) of the DATE Act on Juries of ORG and ORG ( Geschworenen- und GPE ) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court .","Section CARDINAL(CARDINAL)(CARDINAL ) of LAW provides that contributions to recognised religious societies are deductible from income tax up to an amount of MONEY per year .","Section CARDINAL of LAW ( ORG ) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real - estate tax .","Under section CARDINAL(CARDINAL)(a ) of the DATE LAW ( Erbschafts- und ORG ) , which was still in force at the relevant time , donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of PERCENT ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["13","6"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-84856","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2008,"docname":"CASE OF SIRKO AND OTHERS v. HUNGARY","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Baka;Fran\u00e7oise Tulkens;Mindia Ugrekhelidze;Riza T\u00fcrmen;Vladimiro Zagrebelsky","text":["The applicants were born in DATE , DATE , DATE and DATE , and live in Etes , B\u00e1tonyterenye , NORP and Etes , respectively .","In a real estate dispute , on DATE PERSON and others brought an action for a servitude ( szolgalom ) against the applicants .","After CARDINAL hearings , the preparation of an expert opinion and the identification of a plaintiff 's successor , on DATE the NORP ORG found for the plaintiffs . On appeal , on CARDINAL DATE the ORG quashed this decision .","In the resumed proceedings , on DATE the plaintiffs changed their action and claimed ownership . Subsequently , the proceedings were suspended pending the outcome of an underlying land register procedure . The latter ended on DATE . On DATE the plaintiffs ' representative requested the resumption of the principal case .","The proceedings resumed on DATE . After several hearings and the opinion of an expert , on DATE ORG dismissed the action .","On appeal , on CARDINAL DATE ORG changed this decision and granted the plaintiffs the servitude they sought .","On DATE the applicants requested the re - opening of the case . On DATE ORG admitted their request .","In the reopened proceedings , on DATE the ORG established that the plaintiffs ' adverse possession of the servitude in question had not taken place . It ordered the servitude to be deleted from the land register .","NORP On appeal , on DATE ORG changed this decision and upheld its decision of CARDINAL DATE ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57914","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1995,"docname":"CASE OF ALLENET DE RIBEMONT v. FRANCE","importance":2,"conclusion":"Violation of Art. 6-2;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Lack of jurisdiction (injunction to State)","judges":"","text":["ORG Mr PERSON is a company secretary . He currently lives in ORG ( Lot - et - Garonne ) .","ORG On DATE Mr PERSON , a Member of ORG ( d\u00e9partement of ORG ) and former minister , was murdered in front of the applicant \u2019s home . He had just been visiting his financial adviser , Mr PERSON , who lived in the same building and with whom Mr ORG was planning to become the joint owner of a GPE restaurant , \" PERSON Reine P\u00e9dauque \" . The scheme was financed by means of a loan taken out by the victim . He had passed on the borrowed sum to the applicant , who was responsible for repaying the loan .","ORG A judicial investigation was begun into the commission by a person or persons unknown of the offence of intentional homicide . On DATE and DATE the crime squad at GPE police headquarters arrested a number of people , including the victim \u2019s financial adviser . On DATE it arrested PERSON .","ORG On DATE , at a press conference on the subject of the NORP police budget for DATE , the Minister of the ORG , Mr PERSON , the Director of ORG , Mr PERSON , and the Head of ORG , PERSON , referred to the inquiry that was under way .","ORG CARDINAL NORP television channels reported this press conference in their news programmes . The transcript of the relevant extracts reads as follows :","\" TFCARDINAL NEWS","Mr PERSON , newsreader : ... Be that as it may , here is how all the aspects of the de Broglie case were explained to the public at a press conference given by Mr PERSON DATE TIME .","PERSON : The haul is complete . All thepeople involved are now under arrest after thearrest of Mr PERSON . It is a very simplestory . A bank loan guaranteed by ORG wasto be repaid by PERSON and PERSON .","A journalist : Superintendent , who was the key figurein this case ? PERSON ?","Mr PERSON : I think it must have been Mr PERSON .","Mr PERSON : The instigator , Mr PERSON , and hisacolyte , PERSON , were the instigators of themurder . The organiser was Detective PERSON the murderer was PERSON .","Mr PERSON : As you can see , those statements include a number of assertions . That is why the police are now being criticised by ORG officials . Although PERSON and Mr PERSON were careful to ( end of recording ) .","ORG","Mr PERSON , newsreader : ... TIME , therefore , the case has been cleared up . The motives and the murderer \u2019s name are known .","Mr PERSON : The organiser was DetectiveSergeant PERSON and the murderer was PERSON .","Mr PERSON : That is correct . I can ... [ unintelligible ] the facts for you by saying thatthe case arose from a financial agreement betweenthe victim , PERSON , andMr ORG and PERSON .","Mr PERSON : It is a very simple story . A bankloan guaranteed by PERSON was to be repaid PERSON and PERSON .","A journalist : Superintendent , who was the key figurein this case ? PERSON ?","Mr PERSON : I think it must have been Mr PERSON .","Mr PERSON , journalist : The loan was guaranteed by a life insurance policy for MONEY taken out by PERSON . In the event of his death , the sum insured was to be paid to PERSON and ORG . The turning - point came TIME when PERSON , a police officer , was the first to crack . He admitted that he had organised the murder and had lent a gun to have the MP killed . He also hired the contract killer , PERSON , who was promised MONEY and who in turn found CARDINAL people to accompany him . The reasons for their downfall were , first , that PERSON \u2019s name appeared in PERSON diary and , second , that they killed him in front of no . CARDINAL ORG . That was not planned . The intention had apparently been to take him somewhere else , but PERSON perhaps refused to follow his killer . At all events , that was their first mistake . PERSON and GPE apparently then refused to pay them . That led to the secret meetings in bars , the shadowing by the police and informers - we know the rest of the story - and their arrest . The second mistake was made by PERSON . Before contacting PERSON he approached another contract killer , who turned down the job but apparently talked to other people about it . To catch the killers , the police realistically based their investigation on CARDINAL simple ideas . Firstly , the murder was committed in FAC as PERSON was leaving ORG home . There was necessarily a link between the killer and ORG . Secondly , ORG past did not count in his favour and the police regarded him as a rather dubious legal adviser . Those CARDINAL simple ideas and over CARDINAL investigators led to the discovery of the murderer .","Mr Bilalian : The epilogue to the case coincided with a ORG meeting at which the question of public safety was discussed ... \"","ORG On DATE Mr ORG was charged with aiding and abetting intentional homicide and taken into custody . He was released on DATE and a discharge order was issued on CARDINAL DATE .","ORG On DATE Mr ORG submitted a claim to the Prime Minister based on LAW CARDINAL ( article CARDINAL ) of the LAW , inter alia . He sought compensation of MONEY ( ORG ) for the non - pecuniary and pecuniary damage he maintained he had sustained on account of the above - mentioned statements by the Minister of the ORG and senior police officials .","ORG On DATE the applicant applied to ORG for review of the Prime Minister \u2019s implicit refusal of his claim and renewed his claim for compensation . He filed pleadings on DATE .","On DATE the Minister of Justice did likewise . After notice had been served on them by ORG on DATE , the Minister of the ORG and the Prime Minister filed pleadings on CARDINAL and DATE respectively . Mr ORG filed more pleadings on DATE and CARDINAL DATE .","Further pleadings still were filed on DATE by the Minister of Culture , to whom the case file had been sent on DATE ; on DATE and CARDINAL DATE by the Minister of the ORG ; and on DATE by the applicant .","ORG After a hearing on DATE , ORG delivered a judgment on DATE in which the following reasons were given :","\" PERSON , known as ORG , has applied for an order that the ORG should pay compensation for the damage that the Minister of the ORG of the time allegedly caused him by naming him in statements made on DATE during a press conference on the murder of Mr PERSON .","Although the ORG may be liable in damages for the administrative acts of a member of the Government , statements that he makes in the course of his governmental duties are not susceptible to review by the administrative courts . It follows that the application is inadmissible .","... \"","ORG On DATE the ORG d\u2019Etat registered a summary notice of appeal by PERSON . After a warning on DATE , he filed his full pleadings on DATE . On DATE these pleadings were sent to the Minister of the ORG , who submitted his observations on DATE . The applicant replied on DATE .","ORG After a hearing on CARDINAL DATE the ORG d\u2019Etat dismissed the appeal on CARDINAL DATE , on the following grounds :","\" PERSON , known as PERSON , claimed compensation for the damage he allegedly sustained on account of statements made to the press on DATE by the Minister of the ORG , the Director of ORG and the Head of ORG on the outcome of the police inquiries carried out as part of the judicial investigation into the murder of Mr PERSON . Statements made by the Minister of the ORG at the time of a police operation can not be dissociated from that operation . Accordingly , it is not for the administrative courts to rule on any prejudicial consequences of such statements .","It follows from the foregoing that , although ORG was wrong to rule in the impugned judgment that the applicant \u2019s claim related to an act performed \u2018 in the course of governmental duties\u2019 and thus not susceptible to review by the administrative courts , PERSON appeal against the dismissal of his claim in that judgment is unfounded . \"","Mr Allenet de Ribemont brought proceedings in the GPE tribunal de grande instance against the Prime Minister on DATE and the Government Law Officer ( agent judiciaire du Tr\u00e9sor ) on DATE .","On DATE the Prime Minister submitted that the tribunal de grande instance had no jurisdiction as such an action could only , in his view , be brought in the administrative courts .","After requesting the applicant to produce the full text of the statements attributed to the Minister and raising an objection that an action for defamation was time - barred , the Government Law Officer replied on DATE and on CARDINAL DATE .","ORG The applicant filed his submissions on DATE and DATE . He requested the court to order CARDINAL NORP television companies to hand over video recordings of the press conference of DATE and produced press cuttings relating to it .","ORG The court gave judgment on DATE as follows :","\" Admissibility of the action brought against the Prime Minister","Section CARDINAL of the Act of DATE provides that any action brought in the ordinary courts for a declaration that the ORG is owed or owes payment for reasons unconnected with taxation or with ORG property must , subject to exceptions provided for by law , be instituted by or against the Government Law Officer , failing which the proceedings shall be void .","It follows that PERSON claim for reparation from the ORG for damage sustained on account of the statements attributed to the Minister of the ORG should have been lodged only against the Government Law Officer , who is the ORG \u2019s sole representative before the courts , and not against the Prime Minister , who accordingly must not remain a party to the proceedings .","Jurisdiction","The GPE tribunal de grande instance must be held to have jurisdiction in so far as the statements attributed to the Minister of the ORG can be linked with a police operation and are not dissociable from that operation .","The press conference of DATE , held by the Minister of the ORG , the Director of ORG and the Head of ORG to inform the press of the results of the police inquiries following the murder of PERSON , may be considered indissociable from the police operation that was then under way .","...","The statements complained of","...","Anyone who complains of any statements , whether defamatory or merely negligent within the meaning of LAW , must prove that the impugned statements were actually made . It is not for the court to make good any omissions by the parties or to supplement evidence they have adduced , so long as they have been afforded the opportunity of presenting all their documents and arguments freely and in accordance with the adversarial principle .","In this respect , since the plaintiff has been unable to obtain the video recording of the press conference in question and the Government Law Officer considers that he is not under any obligation to request the judge in charge of preparing the case for trial or the court to order the compulsory production of such evidence , judgment must be given on the basis of the evidence in the case file .","PERSON has produced press cuttings describing the press conference of DATE , some of which are dated DATE after the conference or DATE following ... The newspapers did not , however , report the statements allegedly made by the Minister of the ORG , as set out in the writ .","However , in publications DATE after the event , journalists attributed to the Minister of the ORG remarks about PERSON alleged role , and in FAC of DATE , for instance , it is possible to read PERSON statements , reported as follows :","\u2018 Mr PERSON and Mr de Ribemont were the instigatorsof the murder . The organiser was DetectiveSergeant PERSON and the murderer was Mr Fr\u00e8che\u2019 .","But , however carefully the journalists reported the statements in issue , the press articles relied on by PERSON can not be accepted as the sole evidence in view of the objection raised by the defendant on this point .","It may further be observed , as a subsidiary point , that the publications at the time of the press conference in issue merely reported the remarks about PERSON involvement in PERSON murder allegedly made by PERSON after the Minister of the ORG had spoken .","Accordingly , since the plaintiff has brought proceedings against the ORG solely on account of the remarks attributed to the Minister of the ORG , the action must be dismissed without there being any need to examine the submission that an action either for defamation - although the plaintiff has disputed that his action was for defamation - or for a breach of the secrecy of judicial investigations provided for in LAW , is time - barred .","... \"","Mr Allenet de Ribemont appealed to ORG on DATE , and the Government Law Officer cross - appealed on DATE .","ORG The applicant again requested that the videotapes should be handed over for showing .","ORG On DATE the judge in charge of preparing the case for hearing served notice on Mr Allenet de Ribemont to file his submissions , but without success . On DATE he requested him to produce his documents by DATE and to file any submissions by DATE . On DATE he sent a final notice before terminating the preparation of the case for trial . The Government Law Officer filed submissions on DATE and the applicant on DATE . On DATE the parties were informed that the order certifying that the case was ready for hearing would be issued on DATE .","ORG At the hearing of CARDINAL DATE Mr ORG requested an adjournment and , having duly been given leave by the court , filed further submissions on DATE .","ORG held another hearing on DATE and gave judgment on DATE . It found against the applicant for the following reasons :","\" The preliminary objection of inadmissibility","...","It is apparent from the arguments set out below addressing the analysis of the damage that this is an action to establish the ORG \u2019s liability on the ground that the judicial system has malfunctioned , rather than a civil action for defamation and\/or breach of the secrecy of judicial investigations .","The merits","According to the appellant , PERSON had made the following statement : \u2018 Mr PERSON and Mr de Ribemont were the instigators of the murder . The organiser was Detective PERSON and the murderer was Mr DATE . It was allegedly apparent from the series of statements made by PERSON , or by PERSON and PERSON under his authority , that all those guilty had been arrested , the haul was complete and the case was solved . These three had allegedly maintained that the motive for the crime was a bank loan obtained by PERSON to enable PERSON to acquire a controlling interest in PERSON company .","However , as the court below rightly held , the press cuttings produced by PERSON do not suffice to prove his allegations .","Even supposing , however , that they had been proved , it would be necessary to establish whether the damage alleged by the appellant could be linked to the impugned statements .","...","It has not been shown that the statements complained of , which were made during the judicial investigation , in themselves caused the alleged damage . In so far as this damage appears to be connected with the existence of criminal proceedings , it still can not be held that the statements in issue affected the course of the case .","In the absence of any causal link between the impugned statements - should their exact terms be established - and the damage claimed , it is unnecessary to consider the subsidiary application to have the recording produced .","... \"","Mr Allenet de Ribemont lodged an appeal on points of law , which ORG ( Second Civil Division ) heard on DATE and dismissed on DATE on the following grounds :","\" The judgment [ of ORG ] has been challenged because it dismissed PERSON appeal on the ground that the press cuttings he had produced did not suffice to prove his allegations . It is argued , however , firstly , that ORG distorted the meaning of those press cuttings , which proved conclusively that statements had been made by the Minister of the ORG and indicated their exact terms ; secondly , that it infringed LAW by refusing to take into consideration the non - pecuniary damage sustained by PERSON ; and , lastly , that it breached LAW ) of ORG by denying fair reparation to a man whose reputation had been injured in statements heard by CARDINAL of television viewers .","However , ORG held in that judgment , adopting the reasoning of the court below , that the cuttings from the newspapers published on DATE after the conference and on DATE did not report the statements allegedly made by the Minister of the ORG , as set out in the writ , but merely gave an account of remarks said to have been made by a police superintendent after the Minister had spoken , and that the remarks attributed to PERSON , relating to Mr PERSON alleged role as instigator , had been reported in a publication that appeared DATE after the event .","It was in the exercise of its unfettered discretion to assess the evidence before it that ORG ruled , without distorting the meaning of the press cuttings , that they did not suffice to prove Mr PERSON allegations .","In giving this reason alone - leaving aside the reasons criticised in the ground of appeal on points of law , which were subsidiary considerations - the Court of Appeal justified its decision in law .","... \""],"violated_articles":["6"],"violated_paragraphs":["6-1","6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67982","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2005,"docname":"CASE OF KEHAYOV v. BULGARIA","importance":3,"conclusion":"Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested , brought before an investigator and detained on rape charges . A prosecutor confirmed the detention on DATE . Later in the course of the investigation he was also charged with abduction .","DATE and DATE the investigator conducted searches in the applicant 's apartment , ordered an expert analysis of various traces and objects and questioned the applicant .","On DATE the applicant appealed to ORG against the detention order .","In accordance with the established practice , the appeal was submitted through the investigation authorities , which transmitted it to ORG on DATE . The matter was listed for a hearing on DATE .","On DATE the applicant 's lawyer requested access to the case file , which was refused by the judge on DATE .","At the hearing on DATE the applicant 's lawyer requested the withdrawal of the president of the bench as she had recently sought his prosecution for alleged defamatory statements . The lawyer was concerned that the judge 's hostility towards him might prejudice his client 's interests . The request for the judge 's withdrawal was granted and the case adjourned .","On DATE the case was assigned to another bench and listed for hearing on DATE .","On DATE the applicant 's lawyer reiterated his request for access to the case file . The request was refused on DATE .","The applicant 's appeal against his detention was eventually heard on DATE .","At the opening of the hearing the judge refused to allow the participation of the applicant 's lawyer , considering that his written authority form was invalid . The judge stated that the authority had only been signed by the applicant 's wife and not by the applicant , that it bore no indication of the lawyer 's fees and that it had not been made on a sheet from the usual lawyers ' receipt - books .","Thereupon , the applicant , who was also present , handed to the judge another written authorisation , signed by him . The court refused to accept it as the case file number had not been marked on it . As a result , the applicant had to present his case without legal representation .","Having heard the applicant , the court dismissed his appeal against detention , stating that he was charged with a serious criminal offence . The court went on to conclude that the fact that the applicant had refused to sign TIME of his first interrogations and to comment on the charges right away had demonstrated that he lacked critical judgment of his behaviour , which in turn revealed a danger that he would abscond and re - offend .","On DATE the applicant filed a new appeal against detention , referring to passages in a psychiatrists ' report concerning his mental state ( see paragraph CARDINAL below ) . On DATE the applicant also filed a request for the replacement of the president of the bench , arguing that his partiality had been demonstrated by his behaviour at the hearing on DATE . The lawyer did not enclose a power of attorney and did not indicate his address and telephone number .","On DATE the appeal was forwarded by the prosecution authorities to ORG , where it was registered on DATE . A hearing was listed for CARDINAL DATE . The applicant , but not his lawyer , was summoned .","At the hearing on CARDINAL DATE the applicant requested an adjournment as his lawyer was not present . ORG , sitting in a new composition , noted that the applicant 's lawyer had not been summoned as he had not indicated his address . It nevertheless decided to adjourn the case in view of the applicant 's request . A second hearing was listed for CARDINAL DATE .","On CARDINAL DATE the applicant 's lawyer requested to be given access to the case file .","On DATE the ORG heard the prosecutor , the applicant and CARDINAL lawyers acting for him . ORG dismissed the lawyers ' request for an adjournment to allow consultation of the case file , referring to \u201c the practice \u201d and endorsing the prosecutor 's view that it was for the investigator to decide what material should be provided to lawyers .","As to the merits , the applicant argued that his health was unstable , that the conditions of detention were unacceptable and that he had to help his parents , CARDINAL of whom was ill , in their seasonal agricultural work .","ORG dismissed the applicant 's appeal against detention noting the psychiatrists ' conclusion that the applicant was mentally healthy and that other relatives had been taking care of the applicant 's sick mother . The court also had regard to the fact that the charges concerned a serious offence , allegedly committed during the operational period of the applicant 's suspended sentence for a previous conviction , and concluded that there was a danger that he might obstruct the course of justice and reoffend . As to the conditions of the applicant 's detention , the court stated that a transfer to another detention facility could be recommended .","On DATE , before completing the investigation , the investigator gave the applicant and his lawyer access to all the material in the case . On DATE the investigator drew up a report proposing that the applicant be indicted .","The indictment on charges of rape and abduction was prepared by a prosecutor and submitted to ORG on DATE .","At the first hearing , held on DATE , ORG examined the applicant 's renewed appeal against his detention and dismissed it , noting that he was charged with a serious wilful offence which required his remand in custody and that , in any event , the charges concerned an offence allegedly committed during the operational period of the applicant 's previous suspended sentence for another offence . This latter fact left no doubt that there was a danger that the applicant would commit further offences . Finally , the court also endorsed the prosecutor 's position that there was a reasonable suspicion against the applicant and that the fact that the charges concerned a violent offence should be taken into account .","At the hearing held on DATE the applicant submitted another application for release on the grounds that his detention was unreasonably long , that the court failed to conduct a prompt trial and that there was no convincing evidence against him . PERSON , the victim , stated that she feared that if released the applicant may hurt her . She had learned that the applicant 's parents had been asking others about her new address . The court ruled against the applicant 's release . It noted that under the relevant law remand in custody was required in all cases where the charges concerned serious offences . It further stated that there was a danger that the applicant would obstruct the course of justice in view of the fact that he had been charged with CARDINAL offence and that he had a criminal record . Therefore , the applicant 's statements about his good character and family circumstances did not warrant release .","On DATE the ORG found the applicant guilty of rape , sentenced him to DATE imprisonment and acquitted him of the charges of abduction . On DATE ORG upheld the conviction and sentence .","The applicant produced copies of correspondence in DATE and DATE from the presidents of ORG and of ORG to the local ORG , apparently in reaction to complaints made by lawyers about an existing practice of barring access to case files in cases concerning appeals against pre - trial detention .","NORP The president of ORG acknowledged that the complaints were well - founded and stated , inter alia , that , \u201c [ GPE , ORG judges rely on the hitherto prevailing practice and do not share my opinion ... \u201d","The president of ORG informed ORG that the matter had been discussed at length and that the judges had agreed that , contrary to the opinion of ORG and ORG in GPE , there were no legal grounds for refusing access to case files in appeals against detention proceedings .","DATE and DATE the applicant was kept in a lock - up at ORG in GPE .","The cell , where the applicant was detained together with CARDINAL other people , measured QUANTITY ( a surface of CARDINAL m\u00b2 ) . Since there were no beds , the detainees slept on mattresses on the floor . According to the applicant , the blankets were not washed regularly . The Government disputed that allegation . The cell did not have access to daylight and was equipped with a CARDINAL electric lamp . There was a ventilation system . According to the applicant the ventilation system was only installed \u201c in DATE \u201d . He also submitted that in DATE the temperature in his cell did not rise above ORG According to the Government , the cell was centrally heated and the temperature therein was normal .","The applicant and the other detainees were allowed to leave the cell twice a day , at TIME and TIME , for toilet purposes and washing . To relieve themselves outside the time earmarked for toilet visits , the detainees had to use a bucket . They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities . They were provided with detergents . Once per week the buckets were disinfected chemically . No possibility for spending time in the open or physical exercise was provided . The detainees could also leave the cell when they received visits or were brought for questioning or taken to court . They showered once per week in DATE and twice per week in DATE . Apparently hot water was available .","Food was provided CARDINAL times per day in the cell . It was served in pots or mugs which the detainees had to wash after every meal and which were collected and disinfected periodically . For security reasons , no forks or knives were provided . According to the applicant , the food was of bad quality . The Government stated that meat was available at least once per day .","In DATE psychiatry experts who had examined the applicant with a view to verifying his legal capacity to stand trial submitted their report . They noted that DATE or CARDINAL earlier the applicant had undergone periods of depression and violent or inadequate behaviour . He had been admitted for DATE to a psychiatric hospital on suspicion of suffering from paranoid schizophrenia . However , the experts concluded that the applicant 's mental condition was sound .","On DATE the applicant was transferred to the GPE prison where the conditions were better .","The ORG visited GPE in DATE and again in DATE and DATE . ORG detention facility was visited in DATE and DATE . All reports included general observations about problems in all ORG facilities .","In this report the ORG found that most , albeit not all , of the ORG detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were better , the conditions were as follows : detainees slept on mattresses on sleeping platforms on the floor ; hygiene was poor and blankets and pillows were dirty ; cells did not have access to natural light , the artificial lighting was too weak to read by and was left on permanently ; ventilation systems were in poor condition ; detainees could use a toilet and washbasin twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in the cell bucket ; although according to the establishments ' internal regulations detainees were entitled to a \u201c DATE walk \u201d of TIME , it was often reduced to TIME or not allowed at all ; no other form of out - of - cell activity was provided to persons detained .","The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's \u201c hot meal \u201d generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or khalva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery - not even a spoon was provided .","The ORG also noted that family visits were only possible with permission and that as a result detainees ' contact with the outside world was very limited . There was no radio or television .","The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that \u201c almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading . \u201d In reaction , the NORP authorities had agreed that the [ ORG ] delegation 's assessment had been \u201c objective and correctly presented \u201d but had indicated that the options for improvement were limited by the country 's difficult financial circumstances .","NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pre - trial detainees should be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency .","The ORG noted that new rules , providing for better conditions , had been enacted but had not yet resulted in significant improvements .","In most places visited in DATE ( with the exception of a newly opened detention facility in GPE ) , the conditions of detention in ORG premises had remained generally the same as those observed during the ORG 's DATE visit , including as regards hygiene , overcrowding and outof - cell activities . In some places the situation had even deteriorated .","In ORG detention facility , as well as in CARDINAL other places , detainees \u201c still had to eat with their fingers , not having been provided with appropriate cutlery \u201d .","In the same detention facility medical supervision was provided by a medical doctor on the LOC .","The ORG noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done . The cells remained generally overcrowded .","In GPE , CARDINAL of the cells had benefited from a refurbishment which involved making windows in the cell doors , improving the artificial lighting and installing wash basins in the cells . However , the majority of the cells remained in the same inadequate condition as in DATE . The sanitary facilities were not in a satisfactory state of repair .","Despite the ORG 's recommendations in the report on their DATE visit , no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities . Those facilities did not have areas for outdoor exercise . At some of the establishments ( e.g. Botevgrad ) , attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day . The ORG stated that \u201c in this respect , the situation remain[ed ] of serious concern \u201d .","Article CARDINAL \u00a7 CARDINAL of LAW provides that a power of attorney shall be prepared in writing and signed by the defendant and his legal counsel .","The relevant provisions of LAW concerning the powers and functions of investigators and prosecutors are summarised in the ORG 's judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , LAW DATE , ORG CARDINAL-II ) ."],"violated_articles":["3","5"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57888","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":1994,"docname":"CASE OF DEBLED v. BELGIUM","importance":3,"conclusion":"No violation of Art. 6-1","judges":"C. Russo;John Freeland;N. Valticos","text":["ORG Dr PERSON , a urologist of NORP nationality , lives and practises in GPE .","ORG On DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE , at a time when the applicant was still practising in GPE , patients of his complained to ORG ( medical association ) that the fees he charged were excessive . After considering these complaints , ORG summoned the applicant to appear before it on DATE . The council \u2019s registered letter of CARDINAL DATE also informed him that he would be heard on the following counts :","\" CARDINAL that on numerous occasions in DATE , despite the council \u2019s warnings , recommendations and cautions , he charged his patients excessive fees , and persisted in doing so , in breach of the principles of moderation and discretion incumbent on medical practitioners ...","CARDINAL that , after various complaints from patients regarding excessive fees , he refused to follow the recommendation of the council \u2019s fees disputes committee that the cases be submitted to it ;","CARDINAL that , through his attitude , he showed total contempt for the council \u2019s warnings , demonstrating by his statements that he was guided in his practice of medicine by concerns of a wholly pecuniary nature ;","CARDINAL that without valid reason he failed to take part in the [ council \u2019s ] elections of DATE . \"","ORG At the request of the applicant \u2019s lawyer , the hearing was postponed to DATE .","ORG In pleadings filed on DATE of the hearing , PERSON , referring inter alia to certain provisions of LAW and of LAW of DATE , challenged , by way of main submission , \" the council as a whole \" and , in the alternative , CARDINAL doctors sitting on the council , on the ground that , even before the hearing , they had \" individually expressed their opinion concerning PERSON conduct and had described it in negative terms \" . He also reserved the right to contest both the admissibility of the case brought against him and its merits . In additional submissions made at the hearing he requested that \" the proceedings be stayed ... until the appeal [ he ] intend[ed ] to lodge against the council \u2019s decision had been heard \" . Finally , he refused to present argument on the merits , despite having been invited to do so by the council , and withdrew from the hearing .","ORG The council gave its decision on DATE . It first held that the legislative provisions relied on by the applicant had no bearing on the facts of the case and therefore could not constitute the basis for his application challenging its members . It then noted that none of the members of the ORG whom he had accused of having a \" negative attitude towards him \" sat on the council to which it fell to determine the disciplinary proceedings . Lastly , it pointed out that CARDINAL of the council members whom the applicant had challenged had not heard the case in question and that the fifth had only been present in an advisory capacity and had not taken part in the deliberations . It accordingly dismissed the application challenging the council en bloc and ruled that the application concerning the CARDINAL medical practitioners was inadmissible and ill - founded .","The council gave its decision on the request for a stay of the proceedings in the following terms :","\" ... quite apart from the inappropriate references to legislation which has no bearing on the case ... , [ the additional ] submissions state in a curiously implausible and contradictory manner that \u2018 by refusing to give a decision on the challenges , the council dismissed them\u2019 ;","... at no time did the council refuse to give a decision on the challenges ; ... it merely informed PERSON and his lawyers that it would rule on the challenges and the merits in a single decision ; ... during the hearing it did not take any decision whatsoever on the challenges and ... PERSON was consequently acting precipitately and in a way which prejudged a decision that had not been taken when he stated that he intended to appeal against that decision and requested that the proceedings be stayed pending the outcome of that hypothetical appeal .","... there is no reason to grant that request . \"","With regard to the merits of the case , the council , giving its decision in absentia , considered that most of the charges against PERSON had been substantiated and imposed \" on [ him ] the penalty of DATE suspension of his right to practise medicine \" .","ORG On DATE Dr PERSON lodged an appeal against the decision of DATE with the LANGUAGE - language ORG of the ORG .","ORG On DATE he was summoned to a hearing to be held on DATE . On DATE he requested a DATE adjournment to enable his new lawyers to prepare his defence . After deliberating , ORG apparently allowed him an adjournment until DATE .","On DATE he laid a complaint for falsification and use of falsified documents against the members of the bureau of the council of the Ordre des m\u00e9decins ( Dr Remion , PERSON , PERSON , PERSON and PERSON ) . He disputed certain entries in the TIME of meetings held on DATE and CARDINAL DATE to consider the complaints against him . He subsequently also lodged the following complaints :","- on DATE against PERSON and PERSON , the judges ( magistrats ) who had sat on the bureau and council of the ORG during those meetings ;","- on DATE against PERSON , the vice - president of ORG , concerning statements made to the press on CARDINAL DATE ;","- on DATE against the same person for making misleading statements and for breach of confidentiality .","No information has been provided as to what action was taken in response to those complaints .","ORG In the meantime , on CARDINAL DATE Dr PERSON applied to ORG for a transfer of jurisdiction , claiming that there were reasonable grounds for suspecting ORG of bias ( suspicion l\u00e9gitime ) . He called into question the impartiality of CARDINAL of the CARDINAL full members , PERSON and PERSON , and CARDINAL of the CARDINAL substitute members , PERSON , PERSON and PERSON , who were or had been officials of the medical unions .","He first alleged \" in general terms \" that the medical unions had gradually taken control of the various institutions of the Ordre des m\u00e9decins with the result that the policy pursued by the association in fact simply reflected the ORG policies , which were designed purely to safeguard the interests of union members . Consequently , those who opposed this policy through the way in which they practised and the opinions they expressed had good reason to fear that , when hearing a case that concerned them , the union members would not show the impartiality to which everyone was entitled . He maintained , in addition , that the members of ORG bore a grudge against him personally because of the views he had expressed . In DATE he had denounced the collusion between the ORG and the unions and he had joined the \" call of the CARDINAL \" medical practitioners angered by the ORG \u2019s backing of a health care strike organised by the unions . Lastly , he pointed out that the capacity of the disciplinary bodies of the Ordre des m\u00e9decins to conduct proceedings in an objective and impartial manner had been questioned on many occasions by the press , among others , especially in so far as it was possible to be a member of those bodies and a member of the ORG organs at the same time .","ORG In a judgment of CARDINAL DATE ORG ruled inadmissible the application for a transfer of jurisdiction . It held that Article CARDINAL para . CARDINAL of LAW of DATE on the Ordre des m\u00e9decins ( see paragraph CARDINAL below ) had set up CARDINAL LANGUAGE - language ORG and that therefore , as a matter of law , it would be impossible to transfer jurisdiction to another NORP - speaking ORG . Removing the case from the board without remitting it to another tribunal would , moreover , be tantamount to a denial of justice .","ORG On DATE ORG gave its decision in absentia since PERSON had not made any further appearances before it after the hearing of DATE ( see paragraph CARDINAL above ) . It annulled the decision of DATE , on the ground that CARDINAL doctors who had conducted the preliminary investigation had taken part in the deliberations , and suspended PERSON right to practise medicine for DATE . At the same time it dismissed the applications challenging the council members and requesting a deferral of the proceedings , finding that \" in his appeal PERSON [ had ] failed to establish that [ his ] applications were well - founded as to either the law or the facts \" .","ORG On DATE Dr PERSON asked ORG to set aside its decision of DATE pursuant to LAW of DATE ( see paragraph CARDINAL below ) . He alleged , inter alia , that LAW no . CARDINAL on the Ordre des m\u00e9decins ( see paragraph CARDINAL below ) and LAW no . CARDINAL on the medical profession , the practice of related professions and the medical committees were manifestly unlawful because certain essential procedural requirements had not been complied with prior to their adoption . In his submissions he requested ORG to rule as follows :","\" Primarily","Declare that ORG does not legally exist or , at least , that it is unlawfully constituted , and that the same applies to ORG of the Ordre des m\u00e9decins , and accordingly hold that the measure ordered by ORG against the applicant was unlawful ; discontinue the proceedings brought against the applicant or , at least , stay the proceedings until another joint , NORP - language ORG has been formed in accordance with the Act of DATE and more particularly section QUANTITY of that Act .","In the alternative","Stay its proceedings on account of the various complaints laid by the applicant , together with applications to join the proceedings as a civil party filed by him , until the relevant criminal proceedings are concluded , in accordance with the principle that criminal proceedings take precedence over civil proceedings .","In the further alternative","Find that ORG , which annulled the decision appealed against , could under no circumstances rely on any of the documents produced before ORG because those documents were inadmissible .","In the even further alternative","... dismiss all the charges and complaints brought against the applicant . \"","ORG On CARDINAL DATE PERSON was summoned to appear before ORG on DATE . At the hearing he immediately challenged PERSON , PERSON and PERSON . He alleged that they were influential members of the medical unions , which he had consistently opposed - in particular by denouncing the collusion between the ORG and the unions and by taking part in the \" call of the CARDINAL \" . He likewise challenged Judge PERSON on the ground that his son was CARDINAL of the medical ORG lawyers . After hearing PERSON , ORG withdrew to deliberate . It then decided to adjourn the proceedings until DATE in order to enable it to \" reconstitute a full board \" in the meantime .","ORG At the hearing on DATE PERSON filed a further application challenging Mr GPE . In addition , he challenged Dr PERSON and PERSON , in the latter \u2019s case on the ground that his son was a member of the medical union of the provinces of GPE and GPE . He declared , furthermore , that he intended to persist with the applications he had filed at the hearing on DATE . After hearing PERSON , ORG decided to join the interlocutory proceedings to the merits , whereupon the applicant asked that the record should state that he reserved his position concerning both the failure to take an immediate decision on the challenges and their joinder to the merits .","ORG On DATE , at a public hearing , ORG dismissed the objection based on the alleged unlawfulness of Royal Decrees nos . CARDINAL and CARDINAL and ruled that the application of CARDINAL DATE requesting it to set aside its earlier decision was ill - founded ( see paragraph CARDINAL above ) . It noted that ORG decision of DATE ( see paragraph CARDINAL above ) had been annulled and confirmed the decision of CARDINAL DATE ( see paragraph CARDINAL above ) suspending PERSON right to practise medicine for DATE . On the subject of the challenges , it ruled as follows :","\" ... the president informed each of the challenged members of the existence of a challenge and submitted their individual cases to the board , which in each case took a majority vote on the challenge without the member concerned being present , but after hearing that member ;","... with regard to the challenges against PERSON and PERSON , the board notes that the applications are neither dated nor signed ; they are thus flawed and hence inadmissible ;","... with regard to the challenges against PERSON , PERSON and PERSON and the challenges concerning Judge PERSON , the board notes that they are all based on LAW , DATE , of the Judicial Code and that the documents produced by PERSON do not reveal the slightest trace of any hostility , even less of fundamental hostility ; those challenges are accordingly completely unfounded . \"","ORG On DATE Dr PERSON appealed on points of law against the decision of DATE . CARDINAL of his CARDINAL grounds were based on Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and the general principle of law that a judge must be impartial .","In his first submission he also alleged a breach of LAW of DATE governing the organisation and functioning of the councils of the ORG and of ORG and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) . Firstly , there was no legal justification for the decision to join the challenges to the merits and , secondly , those members whose impartiality had been called into question could not take part in a decision to postpone a ruling on the applications concerning them without engendering reasonable doubts as to the impartiality of the tribunal required to determine the merits of the challenges and of the charges .","In his second submission PERSON complained of the fact that the challenges against PERSON , PERSON , PERSON and Judge PERSON had been considered ill - founded \" admittedly without the challenged member being present , but each time in the presence of the other challenged members , whereas the grounds for the challenges [ were ] identical \" .","ORG In a judgment of CARDINAL DATE ORG dismissed the appeal . It observed , in particular , that :","\" ... since the members of ORG who had been challenged did not take part in the decision on the individual challenges concerning them , the mere fact that they participated in the decisions on the other challenges , made on the basis of the grounds reproduced in the appeal submission , does not constitute a breach of either the legislation or the general principle of law referred to by the appellant . \"","ORG The Ordre des m\u00e9decins is currently governed by LAW no . CARDINAL of DATE , issued pursuant to an Act of DATE \" investing the King with certain powers with a view to ensuring economic revival , acceleration of regional reconversion and a stable , balanced budget \" .","That decree provides in particular :","\" CARDINAL . The LANGUAGE - language ORG and the Dutch - language ORG shall each be composed of :","CARDINAL full members and CARDINAL substitute members , who are medical practitioners , elected for DATE and entitled to stand for re - election . Each ORG shall elect CARDINAL of the CARDINAL members of ORG corresponding to the language it uses . The member shall be elected from among the practitioners of NORP nationality who have been on the council \u2019s register for DATE when the election is held ...","CARDINAL full members and CARDINAL substitute members , who are conseillers ( judges ) at ORG , appointed by PERSON DATE ;","...","The King shall designate the president and rapporteurs of each board from among the judicial members .","... \"","\" ...","The Appeals Boards shall take cognisance of all aspects of a case , even where only the medical practitioner has appealed .","ORG must have a CARDINAL majority to impose a penalty where ORG did not so decide or to impose a more severe penalty than that decided by the council . \"","ORG In accordance with LAW no . CARDINAL , LAW of DATE , as amended on CARDINAL DATE and DATE , governs the organisation and functioning of the councils of the ORG .","ORG The councils , which are responsible for \" ensuring observance of the rules of medical ethics and upholding the reputation , standards of discretion , probity and dignity of the members of ORG , are required to \" discipline misconduct by registered members in or in connection with the practice of their profession and serious misconduct committed outside the realm of their professional activity , whenever such misconduct is liable to damage the reputation or dignity of the profession \" ( LAW , of LAW no . CARDINAL ) .","In addition to a warning , censure or reprimand , the councils are empowered to suspend the right to practise medicine for a period not exceeding DATE or to strike the practitioner in question off the register of ORG ( Article CARDINAL ) .","ORG The following provisions are relevant to the instant case :","\" The Appeals Boards\u2019 deliberations and decisions shall be valid only if , in addition to the registrar , CARDINAL elected members and CARDINAL designated members are present .","Without prejudice to the application of the provisions of LAW , the Appeals Boards\u2019 decisions shall be taken by a majority vote . \"","\" An application to ORG to set aside its own decision given in absentia shall be filed by registered letter addressed to the president of ORG concerned . \"","\" A medical practitioner may avail himself of his right to challenge the members of ORG required to give a decision concerning him . \"","\" Any member of ORG may be challenged for the reasons laid down in LAW . \"","\" If he is not to forfeit his right to challenge the members of the council or board , the medical practitioner must , at the latest before the case is pleaded at the hearing , submit to the president of the competent council or board an application , which must be dated and signed and which shall set out the names of the challenged members and the grounds for the challenge . \"","\" The president of the council or board shall immediately inform the member at whom the challenge is directed ; he shall submit the challenge to the council or board , which shall take a majority vote on it , after hearing the challenged member but without that member being present .","The reasoned decision shall be served on the medical practitioner without delay .","An appeal shall lie against a decision by ORG dismissing a challenge ; such an appeal must be lodged within DATE of the notification of the decision . \"","ORG The relevant provisions of LAW read as follows :","\" The rules set out in this Code shall apply to all proceedings except those governed by legislation that has not been expressly repealed or by principles of law whose application is incompatible with that of the provisions of the Code . \"","\" Any judge may be challenged for the following reasons :","...","CARDINAL if the judge is the guardian ( tuteur ) , auxiliary guardian ( subrog\u00e9 tuteur ) or limited guardian ( curateur ) , temporary trustee ( administrateur provisoire ) or guardian ad litem ( conseil judiciaire ) ... of CARDINAL of the parties ; if he is an administrator or agent ( commissaire ) of any establishment , company or association which is a party to the case ; ...","...","DATE if there is fundamental hostility ( inimiti\u00e9 capitale ) between him and one of the parties ; if he has made attacks , proffered insults or uttered threats , in speech or in writing , since the commencement of the proceedings or in DATE preceding the challenge . \"","\" From DATE on which the judge is notified , all judgments and proceedings shall be suspended .","Nevertheless , if one of the parties maintains that the proceedings are urgent and that the delay involves a risk , that party may request the president of the relevant court to organise a hearing of the interlocutory application ; ...","In allowing that request , the president shall order that another judge should deal with the application . \"","ORG According to NORP legal theory , \" fundamental hostility exists if facts of a sufficiently serious nature clearly reveal that the judge feels real hatred or at least animosity such that his judgment is destroyed or impaired \" ( PERSON , PERSON civile , DATE , p. CARDINAL , note CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-87888","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2008,"docname":"CASE OF SALMANOV v. RUSSIA","importance":4,"conclusion":"Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens","text":["The applicant was born in DATE and is serving a sentence of imprisonment in GPE .","The applicant was arrested on DATE . He was charged with a number of criminal offences , including conspiracy to commit murder .","On DATE the applicant was taken to remand centre no . CARDINAL , also known as \u201c PERSON \u201d .","NORP In DATE the deputy Prosecutor General extended his detention until DATE . On DATE the ORG of GPE upheld this extension order .","In DATE the criminal case against the applicant was listed for trial . On DATE ORG held that the measure of restraint in respect of defendants , including the applicant , had been lawful and should remain unchanged .","ORG subsequently issued further extension orders on DATE , DATE , DATE , DATE , DATE and DATE , referring to the fact that the applicant and his co - defendants had been charged with particularly serious criminal offences . ORG of GPE rejected appeals against these remand orders , endorsing ORG reasoning .","On DATE ORG extended the GPE detention on remand until DATE , noting the gravity of the charges against them and the possibility that they might abscond or obstruct justice .","On DATE ORG extended the GPE detention on remand until DATE , indicating that :","\u201c ... [ the defendants ] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons , against whom separate criminal proceedings are pending , and with another person , against whom criminal proceedings were disjoined because his whereabouts are not known ; if released , [ they ] may abscond or obstruct justice \u201d .","On DATE ORG extended the GPE detention , reproducing verbatim the reasoning of its earlier decision .","On DATE ORG upheld the decision of DATE and endorsed ORG reasoning .","On DATE the GPE city prosecutor approved the bill of indictment and the case was submitted for trial to ORG . The applicant was charged with multiple counts including conspiracy to commit murder . Similar charges were brought against CARDINAL other co - defendants .","On DATE ORG noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury . However , as there were no juries in ORG , it decided to send an inquiry to ORG of GPE as to where the case should be tried . ORG referred the case to ORG , where juries were available .","On an unspecified date a judge of ORG sent a request to ORG of GPE , inviting it to rule on the compatibility with LAW of ORG interpretation of the jurisdictional rules . On DATE she suspended the proceedings pending a decision by ORG . She also held that the defendants were to remain in custody because they had been charged with criminal offences of high public danger , classified as serious or particularly serious .","On DATE ORG held that the decision on the change of venue had been incompatible with LAW .","In compliance with that ruling , on DATE ORG returned the case file to ORG . ORG decided on DATE that ORG was competent to try the case .","On DATE ORG scheduled the first hearing for DATE before a panel consisting of a professional judge and CARDINAL lay judges , but on that date the hearing was adjourned because the presiding judge was sitting in another case .","In DATE and DATE the presiding judge was replaced by other judges of ORG . Lay judges were replaced several times .","Numerous hearings were scheduled DATE . All of them were adjourned on various grounds , mainly because the prosecutor , the interpreter and some of the defendants\u2019 lawyers had defaulted , and also owing to the presiding judge \u2019s involvement in other proceedings in DATE and DATE , and then in DATE .","It appears that consideration of the merits began in DATE . The absence of several lawyers , including the applicant \u2019s counsel , was one of the reasons for adjourning the hearings listed for DATE and CARDINAL DATE .","NORP The illness of the applicant \u2019s counsel was one of the reasons for adjourning the hearings scheduled for DATE and DATE . On DATE the trial judge ordered the bailiffs to bring the defaulting witnesses and victims to a hearing on DATE , which was not done in respect of certain witnesses and victims . On a number of occasions DATE the judge reiterated his request .","On DATE the trial court closed the trial and started deliberations .","On DATE ORG found the applicant guilty of multiple counts including conspiracy to commit murder and sentenced him to CARDINAL years\u2019 imprisonment . On DATE the judgment was pronounced in public .","The applicant and the other defendants lodged an appeal . On DATE ORG upheld the judgment .","According to the applicant , from DATE to CARDINAL DATE and from DATE to DATE he shared a cell with a Mr K. On an unspecified date , the latter tested HIV positive . He was informed so DATE and had another blood test , which was also positive . According to the applicant , on DATE PERSON told him that he had tested HIV positive .","It appears from a report of DATE , submitted by the ORG , that HIV - positive detainees were not segregated from the other detainees in remand centre no . MONEY ; the applicant \u201c was informed of the rules for detention of HIV - positive detainees \u201d , including a prohibition of such segregation .","The applicant submitted the following description of the relevant circumstances of his transport and confinement .","DATE the applicant had been transported to ORG and back to the remand centre no . MONEY on DATE ( normally , DATE ) . He had been taken out of his cell at TIME and placed alone in a cell measuring CARDINAL by QUANTITY , awaiting departure at TIME On DATE of a court hearing he had not been given any food before departure ; nor had he received any meal at the courthouse or in the remand centre upon his return . Since DATE the authorities had started to supply a dry ration for DATE which he , however , could not consume because no hot water had been provided at the convoy premises in ORG .","The applicant had been transported in overcrowded vans ; the journey from the remand centre to ORG had normally taken TIME .","At ORG premises the applicant had been held together with several other detainees in a cell measuring CARDINAL by QUANTITY . After the hearing he had been taken back to that cell where he had waited until TIME without any food or drink or access to a toilet .","On the way back the prison van had never gone directly to remand centre no . MONEY , it made a detour to bring detainees to another remand centre where it sometimes stayed for TIME . Thus , the return journey had normally taken TIME . Upon arrival at facility no . MONEY , the applicant had had to wait for TIME before being taken to his cell at TIME .","The Government contested the applicant \u2019s description of his conditions of confinement and transport . According to them , the applicant was taken out of his cell at TIME and provided with hot breakfast . He was then kept at the assembly section which had CARDINAL cells measuring CARDINAL . Each cell had a bench , sanitary facilities , artificial lighting and a window . The applicant remained there for TIME and a half awaiting departure for the courthouse . He was given a dry ration consisting of CARDINAL courses for the remainder of DATE .","DATE the applicant was transported in vans GAZ-CARDINAL(CARDINAL ) and ZIL-CARDINAL . The detainees\u2019 section of the GAZ van measured QUANTITY ( length ) by QUANTITY ( width ) by QUANTITY ( height ) . Such a van had CARDINAL individual compartment and CARDINAL compartments for CARDINAL persons each . The detainees\u2019 section of the ORG van measured QUANTITY by QUANTITY by QUANTITY and had CARDINAL individual compartments and CARDINAL compartments for QUANTITY persons each . Both types of vans also had CARDINAL seats for convoy officers .","Vans were equipped with fixed benches so that each detainee was provided with individual seating . PERSON walls had insulating lining . Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running . Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow . Given the security considerations , from DATE the applicant and his co - defendants were carried by direct transfer between the remand centre and the courthouse .","At ORG the applicant was kept at the convoy premises which had CARDINAL compartments with CARDINAL cells each and a toilet , which detainees could access upon request . Each cell measured QUANTITY by QUANTITY by QUANTITY Each cell had seating and was equipped with systems of ventilation , heating and artificial lighting . At the courthouse he was provided with hot water with which to consume the dry ration . He was also allowed to bring food purchased in the prison shop or received from his relatives .","In DATE the applicant complained about unsatisfactory conditions of transport and confinement at the courthouse .","It appears from the report of ORG of the ORG dated DATE , submitted by the Government , that the applicant was taken to court for criminal proceedings which \u201c were dragging on \u201d . DATE he was transported CARDINAL times in the prison van ZIL-CARDINAL together with , at times , CARDINAL other detainees ; the direct transfer from the courthouse did not normally exceed TIME and ended no later than QUANTITY p.m. , except on CARDINAL DATE . From DATE the applicant and his co - defendants were taken by direct transfer on account of security considerations . Convoy premises at courthouses were not equipped for catering purposes and \u201c the detainees ate their dry rations when they returned to the remand centre from the courthouse \u201d .","By a letter of CARDINAL DATE ORG of the ORG stated that the time taken for transportation had been \u201c objectively justified \u201d .","For a summary of the applicable national legislation relating to detention on remand , see the ORG \u2019s judgment in the case of PERSON v. GPE ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , ECHR DATE ) .","On DATE ORG adopted the Rules on food supply for convicts and persons detained in remand centres . According to Annex no . CARDINAL to these Rules , a daily dry ration ( bread , tinned beef or fish , sugar , tea and salt ) is provided to the following categories of persons : convicts on their way to a prison , a remand centre or colony ; persons released from custody on the way to their place of residence ; persons during their stay in patient care institutions or convicted juveniles . Those Rules were amended in DATE and repealed in DATE .","On DATE ORG adopted the Rules on supply of dry ration , according to which persons suspected or accused of criminal offences should be supplied with a dry ration ( bread , precooked first and second courses , sugar , tea , tableware ) during their presence at a courthouse . Detainees should be supplied with hot water with which to consume the ration .","Limitation of a citizen \u2019s rights and freedoms because of his or her HIV status may be authorised only by federal law ( section CARDINAL of the Law on Prevention of Propagation of HIV infection , CARDINAL of CARDINAL DATE ) . Detainees are subject to a compulsory medical examination ( section QUANTITY of the Law ) . A person who has tested HIV - positive must be informed thereof , be informed of the need to take precautions for preventing propagation of the HIV infection and warned that contamination of others or exposing others to a risk of contamination is a criminal offence ( section CARDINAL of the PERSON ; LAW ) .","According to the Rules on Compulsory Testing of Prisoners for HIV infection ( adopted by ORG on DATE ) , the prison administration must take measures preventing propagation of the HIV infection ; medical and other staff must not disclose information relating to the detainee \u2019s HIV status ( LAW and CARDINAL ) .","Section CARDINAL \u00a7 CARDINAL of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts , alcoholics , HIV and tuberculosis infected prisoners . Federal Law No . CARDINAL-FZ of DATE repealed that provision in so far as it related to HIV - infected prisoners .","The relevant extracts from the CARDINALth ORG [ ORG ( DATE ) CARDINAL ] prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) concerning transmissible diseases read as follows :","\u201c CARDINAL . The spread of transmissible diseases and , in particular , of tuberculosis , hepatitis and HIV \/ AIDS has become a major public health concern in a number of NORP countries ....","... [ T]he act of depriving a person of his liberty always entails a duty of care ...","The use of up - to date methods for screening , the regular supply of medication ... constitute essential elements of an effective strategy ... to provide appropriate care to the prisoners concerned .","... [ T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds . In this connection , the ORG wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV - positive .","... [ I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff . Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures . More particularly , the risks of HIV or hepatitis B \/ C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained ... \u201d","The relevant parts of the Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG concerning the ethical and organisational aspects of health care in prison read as follows :","\u201c CARDINAL . Medical confidentiality should be guaranteed and respected ...","The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medial reasons .","No form of segregation should be envisaged in respect of persons who are HIV antibody positive , subject to the provisions contained in paragraph CARDINAL .","Those who become seriously ill with Aids - related illnesses should be treated within the prison health care department , without necessarily resorting to total isolation . Patients , who need to be protected from the infectious illnesses transmitted by other patients , should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections ... \u201d","The relevant part of the Appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows :","\u201c CARDINAL . As segregation , isolation and restrictions on occupation , sport and recreation are not considered necessary for seropositive people in the community , the same attitude must be adopted towards seropositive prisoners . \u201d","Detention of HIV - infected persons was also examined in the following ORG to Member GPE : no . R ( CARDINAL ) CARDINAL on the ethical issues of HIV infection in the health care and social settings ; and no . R ( CARDINAL ) CARDINAL concerning the ethical and organisational aspects of health care in prison .","Similar recommendations were made by the DATE World Health Organisation in the LAW on HIV infection and AIDS in prisons :","\u201c DATE . Since segregation , isolation and restrictions on occupational activities , sports and recreation are not considered useful or relevant in the case of HIV - infected people in the community , the same attitude should be adopted towards HIV - infected prisoners . Decisions on isolation for health conditions should be taken by medical staff only , and on the same grounds as for the general public , in accordance with public health standards and regulations . Prisoners\u2019 rights should not be restricted further than is absolutely necessary on medical grounds , and as provided for by public health standards and regulations ...","Isolation for limited periods may be required on medical grounds for HIV - infected prisoners suffering from pulmonary tuberculosis in an infectious stage . Protective isolation may also be required for prisoners with immunodepression related to AIDS , but should be carried out only with a prisoner \u2019s informed consent . Decisions on the need to isolate or segregate prisoners ( including those infected with HIV ) should only be taken on medical grounds and only by health personnel , and should not be influenced by the prison administration ....","Information regarding HIV status may only be disclosed to prison managers if the health personnel consider ... that this is warranted to ensure the safety and well - being of prisoners and staff ... \u201d"],"violated_articles":["5","6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93199","languageisocode":"ENG","respondent":"UKR","branch":"ADMISSIBILITY","date":2009,"docname":"VLASENKO v. UKRAINE","importance":4,"conclusion":"Inadmissible","judges":"Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE , GPE . ORG ( \u201c the Government \u201d ) were represented by PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant worked at a joint stock company , \u201c K \u201d . In DATE he retired .","In DATE a medical expert commission recognised the applicant as having a number of work - related illnesses . As a result K paid him a lump sum in compensation and started to pay him a DATE pension .","On DATE the applicant instituted civil proceedings in ORG of ORG ( \u201c the ORG \u201d ) against K , seeking a recalculation of the above - mentioned payments .","On DATE the defendant requested the court to order an accountant \u2019s report on the calculation of the payments in question . The court allowed this request .","On DATE the expert opinion was read out at a court hearing .","On DATE ORG found for the applicant .","On DATE , upon an appeal by the defendant , ORG ( since DATE ORG ) quashed that judgment on the ground that the first - instance court had wrongly calculated the amounts awarded , and ordered a retrial .","ORG hearing scheduled for DATE was adjourned at the applicant \u2019s request because he was preparing an additional claim . This claim , apparently for additional payments , was lodged on DATE . Further additional claims were lodged by the applicant on DATE and DATE .","On DATE ORG ordered , at the defendant \u2019s request , a forensic examination by an accountant . The defendant subsequently refused to bear the costs of the forensic examination in view of lack of funds and the expert terminated the examination . The file was transferred back to ORG and the next hearing took place on DATE .","On DATE ORG joined , at the defendant \u2019s request , the local department of ORG ( ORG \u0434\u0438\u0440\u0435\u043a\u0446\u0456\u044f ORG \u0441\u043e\u0446\u0456\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u0441\u0442\u0440\u0430\u0445\u0443\u0432\u0430\u043d\u043d\u044f \u0432\u0456\u0434 \u043d\u0435\u0449\u0430\u0441\u043d\u0438\u0445 \u0432\u0438\u043f\u0430\u0434\u043a\u0456\u0432 \u043d\u0430 \u0432\u0438\u0440\u043e\u0431\u043d\u0438\u0446\u0442\u0432\u0456 \u0456 \u043f\u0440\u043e\u0444\u0435\u0441\u0456\u0439\u043d\u0438\u0445 \u0437\u0430\u0445\u0432\u043e\u0440\u044e\u0432\u0430\u043d\u044c PERSON \u041a\u0440\u0438\u0432\u043e\u043c\u0443 \u0420\u043e\u0437\u0456 ) to the proceedings as a co - defendant .","On DATE ORG found for the applicant .","On DATE , following an appeal by K , the Dnipropetrovsk Regional Court of Appeal quashed the judgment of DATE on the ground that the lower court had wrongly calculated the amounts awarded and ordered a retrial .","On DATE ORG found for the applicant .","From DATE to DATE the domestic courts examined the matter of admissibility of the appeal by K against the last - mentioned judgment . Eventually , K lodged an appeal in compliance with the procedural requirements prescribed by law and the proceedings on the merits resumed .","On DATE the ORG upheld the judgment of DATE .","On DATE ORG of GPE rejected an appeal in cassation by PERSON"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22702","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2002,"docname":"NOGOLICA v. CROATIA","importance":1,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is a NORP citizen , who was born in DATE and lives in GPE . He is represented before the Court by PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","On DATE the applicant filed CARDINAL civil actions for damages with ORG ( PERSON ) , CARDINAL against the newspaper \u201c LOC \u201d and the other against the newspaper \u201c FAC \u201d , claiming that these newspapers had published libellous articles about him .","On DATE and DATE the first instance court held hearings .","At the hearing on DATE the ORG heard the applicant .","At the hearing on DATE the court heard CARDINAL witness .","The hearing scheduled for DATE was adjourned for DATE when the court heard another witness and an expert .","At the next hearing on DATE the court heard yet another witness and concluded the trial .","The first instance judgment , rejecting the applicant \u2019s claim , was served on the applicant on DATE .","On DATE the applicant filed an appeal against the judgment .","On DATE the case - file was transferred to the GPE Cout ( \u017dupanijski sud u GPE ) as the appellate court .","The proceedings are presently pending before the appellate court .","The first instance court held a hearing on DATE .","At the hearing on DATE the defendants submitted their replies to the applicant \u2019s claim .","At the next hearing on DATE the court heard the applicant .","The hearings scheduled for DATE and CARDINAL DATE were adjourned because the witnesses summoned for these hearings did not appear .","On DATE the court heard CARDINAL witness and concluded the trial . DATE the first instance judgment , rejecting the applicant \u2019s claim , was served on the applicant .","On DATE the applicant appealed against the first instance judgment .","On DATE the case - file was transferred to ORG as the appellate court .","The proceedings are presently pending before the appellate court .","Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE - hereinafter \u201c LAW DATE \u201d - PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new LAW ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :","( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant \u2019s rights and obligations or a criminal charge against him ...","( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...","( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60668","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2002,"docname":"CASE OF BOHMER v. GERMANY","importance":3,"conclusion":"Violation of Art. 6-2","judges":"Ireneu Cabral Barreto","text":["On DATE ORG convicted the applicant , a NORP national born in DATE , on charges of receiving stolen goods and theft and sentenced him to DATE imprisonment . The execution of the sentence was suspended on probation for DATE .","On DATE the ORG convicted the applicant on charges of negligent drunken driving and negligent driving without licence and imposed a fine . Thereupon , ORG decided to prolong by DATE the applicant 's probationary period .","On DATE ORG charged the applicant and CARDINAL co - accused with several counts of fraud , committed DATE and DATE .","NORP Moreover , on DATE the applicant was issued with a penal order ( Strafbefehl ) by ORG in the framework of a summary procedure . He was sentenced to a fine of MONEY ( DEM - approximately CARDINAL Euro ) per day for DATE for an offence of fraud , committed in DATE to the detriment of PERSON Upon the applicant 's objection , lodged with the assistance of Mr GPE , main proceedings were instituted before ORG . On DATE these proceedings and the proceedings concerning the charges of DATE , were joined .","NORP In DATE the GPE ORG convicted the applicant of fraud and sentenced him to DATE imprisonment . The proceedings concerning the charge of fraud to the detriment of PERSON were provisionally stayed pursuant to section CARDINAL ( CARDINAL ) of LAW as it appeared unnecessary to sanction the offence in question separately , the applicant having been sentenced to DATE imprisonment in respect of the other fraud offences .","On DATE ORG issued a penal order against the applicant , convicting him of fraud , committed in DATE . He was sentenced to a fine of DEM DATE for DATE .","When the postman found nobody at the applicant 's home , the order was served in accordance with the relevant legal provisions , by way of a notification in his letter - box on DATE to collect the said decision deposited at the local post office in his absence . Since the applicant did not lodge an objection in time , the penal order acquired legal force as the final judgment in the matter on DATE . On DATE the ORG granted the applicant 's request for retrial .","On DATE ORG informed the applicant of its intention to revoke the suspension of his sentence of DATE and invited him to comment within DATE after service of the letter . Due to the applicant 's absence from home , the letter was served by way of a notification in his letter - box on DATE to collect the said letter at the local post office .","On DATE the ORG revoked the suspension of the applicant 's sentence to DATE imprisonment , imposed on DATE .","In the reasons given for its decision , ORG , referring to section CARDINALf ( CARDINAL)(CARDINAL ) of LAW , found that the applicant had committed criminal offences during the period of probation and had thereby shown that he did not fulfil the expectations upon which the suspension of the sentence was based .","ORG noted that , subsequent to the said suspension , the applicant had been convicted of further criminal offences and that these convictions had become final . Thus he had been convicted of traffic offences by ORG on DATE and of fraud by ORG on DATE . The court considered that in particular the applicant 's conviction of another offence relating to property had shown that he did not fulfil the expectations upon which the suspension of his sentence was based . Taking into account that the period of suspension had already once been prolonged , other , more lenient measures than revoking the suspension were not possible .","Due to the applicant 's absence , the order was also served by way of a notification in his letter - box on DATE to collect the decision of CARDINAL DATE deposited at the local post .","On DATE the applicant , assisted by PERSON , submitted an application for the reinstatement of the proceedings against the decision of DATE and lodged an appeal against the said decision .","NORP By letter of CARDINAL DATE ORG informed the applicant 's counsel that , considering ORG decision to stay the execution of the sentence ( PERSON ) until DATE , it would await the outcome of the proceedings before ORG regarding his request for reinstatement .","On DATE ORG decided to grant the applicant 's request for reinstatement and adjourned the appeal proceedings to await the final outcome of the FAC proceedings relating to his request for reinstatement . ORG considered that the question whether or not the applicant had committed a further offence of fraud was decisive for its decision on revoking his suspension . It noted that this request had been unsuccessful at first instance , but appeal proceedings were pending . ORG dismissed the applicant 's request to await the outcome of the proceedings relating to his request for retrial .","On DATE ORG informed the applicant that , following deliberations , the case remained adjourned to await the outcome of the FAC proceedings for reinstatement .","On DATE a hearing took place before ORG , which heard the statements made by PERSON and the further witness , police officer PERSON , in the presence of the applicant 's counsel . The applicant , waiting outside the court building , did not attend the hearing in order not to be seen in case of a confrontation with PERSON , as suggested by his counsel .","Following the hearing , ORG dismissed the applicant 's appeal against the decision of DATE on the ground that the reasons given in that decision were correct in their conclusion .","According to ORG , the applicant \u201c had not fulfilled the expectations upon which the suspension of his sentence ... was based , as he committed new offences during the period of suspension \u201d ( \u201c hat die Erwartungen , die der ... PERSON zugrunde lagen , nicht erf\u00fcllt , weil er in der FAC begangen hat \u201d ) .","In its reasoning , ORG noted the applicant 's final conviction by ORG on DATE .","As regards the penal order issued by ORG on DATE , it considered that the applicant 's pending request for retrial might result in the hearing of numerous witnesses . As the prolonged period of suspension had already expired DATE , ORG found that it could not await the outcome of these proceedings .","ORG turned next to the proceedings pending before ORG . It noted that , following the applicant 's successful appeal against the penal order of DATE , ORG had joined these and further criminal proceedings involving the applicant and CARDINAL other accused and relating to several charges of fraud . In the latter proceedings , trial proceedings had not yet been opened on account of difficult investigations . ORG stated that it would not await the outcome of these proceedings either . Rather , it opted for a procedure under section CARDINAL of LAW to examine the question whether or not , in addition to the conviction by ORG of DATE , the applicant 's criminal offence to the detriment of Mr. PERSON could constitute a reason for revoking the suspension of his sentence .","ORG considered that , having questioned Mr. PERSON and a further witness , the police officer PERSON , in presence of the applicant 's defence counsel , \u201c it had been able to obtain certainty that the applicant was guilty of fraud to the detriment of witness ... [ H. ] ( section CARDINAL of LAW ) \u201d ( \u201c hat dem NORP ... die PERSON verschafft , dass sich der Beschwerdef\u00fchrer gegen\u00fcber dem Zeugen ... [ H. ] des Betruges schuldig gemacht hat ( \u00a7 CARDINAL StGB ) \u201d ) .","In this respect , ORG took note of both witnesses ' indications as to the circumstances of the offence in question as well as to the criminal information laid by the victim H. and the subsequent investigations . Thus , ORG found that the applicant had offered PERSON a mobile phone and a video camera at a low price . When the transaction was to be carried out some time later at a parking place on the motorway , the applicant had taken PERSON 's money and disappeared without handing over the promised goods . While PERSON had not identified the applicant on police photographs shown to him at the police department DATE after the offence , he did recognise him in a collection of police photographs which had been presented to him by the police officer ORG considered that both witnesses ' statements were true . The court argued that PERSON had openly talked about his bad conscience regarding the low price of the CARDINAL objects and he had also admitted that , because he was ashamed , he had not told the truth as to the circumstances of the applicant 's disappearance on the occasion of his questioning by the police . Moreover , police officer PERSON had remembered many details and had also explained an amendment to the minutes of H. 's questioning .","Furthermore , ORG indicated that it had inspected the files of the proceedings pending before ORG inasmuch as the collection of police photographs was concerned . ORG noted that , when the scene of identifying the applicant had been re - enacted , the witness PERSON , following an initial hesitation as to a photograph showing another person , had clearly recognised the photograph showing the applicant . In these circumstances , ORG considered not necessary to re - enact the consultation of police photographs , which had been taken place at the police department DATE after the offence .","ORG did not take up the suggestion of the applicant 's counsel for an open confrontation between the witness PERSON and several persons , including the applicant . It considered that so much time had elapsed since the offence that the applicant 's appearance could have considerably changed . Furthermore , it had not been sure whether the applicant would have participated in such a confrontation . In this situation , it rather relied on the memory of the witness H.","ORG concluded that the strict conditions were met for considering an offence , prior to final conviction , as a reason for revoking a suspension . In cases as the present one , awaiting the final conviction would , on account of the considerable possibilities of delay , lead to the unbearable result that criminal offenders could commit further offences during the probationary period without any risk of suffering disadvantages .","According to ORG , the applicant 's conviction by ORG and his criminal offence against PERSON had shown that , contrary to the initial prognosis , the applicant was not able to live a law - abiding life . While the conviction by ORG merely disclosed a general lack of reliability and could not , taken alone , justify revoking the suspension , the applicant had proceeded in the case PERSON in a way similar to that followed for the offence underlying his DATE conviction . Accordingly , the suspended prison sentences had had no impact on the applicant . More lenient measures could not therefore be envisaged .","The decision was served on the applicant 's counsel on DATE .","On DATE ORG refused to admit the applicant 's constitutional complaint .","Subsequently , ORG at ORG suspended the execution of the sentence pending the proceedings before the ORG .","Sections CARDINAL of the Penal Code govern the suspended execution of sentences . Section CARDINAL concerns the conditions for suspension and reads as follows :","\u201c CARDINAL . Upon a sentence of imprisonment of DATE , the court shall suspend the execution of the punishment and grant probation if it can be expected that the sentence will serve the convicted person as a warning and he will commit no further crimes in the future even without the influence exerted by serving the sentence . Particularly to be considered are the personality of the convicted person , his previous history , the circumstances of his offence , his conduct after the offence , his living conditions and the effects which can be expected as a result of the suspension .","( CARDINAL ) The court may also suspend the execution of a longer term of imprisonment which does not exceed DATE under the provisions of subsection ( CARDINAL ) and grant probation if a comprehensive evaluation of the offence and personality of the convicted person reveals the existence of special circumstances . In making the decision the efforts of the convicted person to make restitution for the harm caused by the offence should particularly be considered . \u201d","According to section DATE , the competent court determines the period of probation of DATE . It may subsequently be reduced to the minimum or prolonged to the maximum before its expiration . The court may impose conditions on the convicted person ( section PERSON ) , and may issue instructions to the convicted person for the duration of his period of probation ( section DATE ) or place the convicted person under the supervision of a probationary officer ( section ORG ) . According to section DATE , such decisions may be taken or amended at a later stage .","As regards the revocation of a suspension , section CARDINALf of the Penal Code provides inter alia that","\u201c CARDINAL . The court shall revoke the suspension of a sentence if the convicted person commits a criminal offence during the period of probation and , thereby , shows that he did not fulfil the expectations upon which the suspension of the sentence was based","...","NORP The court shall , however , refrain from revocation when it suffices :","( CARDINAL . ) to impose further conditions or instructions , in particular to place the convicted person under the supervision of a probation officer ; or","( CARDINAL ) NORP to prolong the period of probation ... \u201d","Section CARDINAL of the Code of Criminal Procedure provides for the provisional stay of the prosecution in the following terms :","\u201c CARDINAL . NORP The public prosecutor may decide not to prosecute","( CARDINAL ) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ... ...","Once proceedings have been instituted , the court may provisionally stay them at any stage on an application by the public prosecutor . .... \u201d","Court decisions other than conviction and sentence may be challenged in proceedings instituted under section CARDINAL of LAW . In such proceedings , the appellate court may order investigations or proceed to own investigations ( section CARDINAL ( CARDINAL ) ) ."],"violated_articles":["6"],"violated_paragraphs":["6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110513","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF JANOWIEC AND OTHERS v. RUSSIA","importance":2,"conclusion":"Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione temporis;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient","judges":"Anatoly Kovler;Angelika Nu\u00dfberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The facts of the case , as submitted or undisputed by the parties , may be summarised as follows .","On DATE the Foreign Ministers of the NORP GPE and GPE signed a non - aggression treaty ( known as LAW ) which included an additional secret protocol whereby the parties agreed to settle the map of their \u201c spheres of interests \u201d in the event of a future \u201c territorial and political rearrangement \u201d of the then independent countries of LOC , including GPE . According to the protocol , the eastern part of NORP territory was \u201c to fall to \u201d GPE .","On DATE GPE invaded GPE , starting the Second World War . On DATE ORG marched into NORP territory , allegedly acting to protect the NORP and NORP living in the eastern part of GPE because ORG had collapsed under the NORP attack and could no longer guarantee the security of its own citizens . ORG did not offer any military resistance . The GPE annexed the territory newly under its control and in DATE declared that the CARDINAL NORP citizens who lived there were henceforth NORP citizens .","In the wake of ORG advance around CARDINAL NORP soldiers , border guards , police officers , prison guards , ORG officials and other functionaries were detained . After they had been disarmed , CARDINAL of them were set free ; the others were sent to special prison camps established by the FAC ( ORG , a predecessor of the ORG ) in GPE , PERSON and ORG . On DATE it was decided that the NORP officer corps should be billeted at the camps in GPE and ORG and the remaining functionaries , including the police officers and prison guards , in PERSON .","NORP In DATE Mr PERSON , head of the GPE , submitted to PERSON , Secretary General of ORG , a proposal to approve the shooting of NORP prisoners of war on the grounds that they were all \u201c enemies of the NORP authorities and full of hatred towards the NORP system \u201d . The proposal specified that the prisoner - of - war camps held CARDINAL former NORP officers , officials , landowners , police officers , gendarmes , prison guards , settlers and intelligence officers , and that the prisons in the western regions of GPE and GPE accommodated a further CARDINAL former NORP citizens who had been arrested .","On DATE the ORG of ORG of ORG , the highest governing body of GPE , took the decision to consider \u201c using a special procedure \u201d and employing \u201c capital punishment \u2013 shooting \u201d in the case of CARDINAL former NORP officers held in the prisoner - of - war ( POW ) camps , as CARDINAL members of various counter - revolutionary and espionage organisations , former landowners , industrialists , officials and refugees held in the prisons of western GPE and GPE . The cases were to be examined \u201c without summoning the detainees and without bringing any charges , with no statement concluding the investigation and no bill of indictment \u201d . Examination was delegated to a CARDINAL - person panel ( \u201c troika \u201d ) composed of ORG officials , which operated on the basis of lists of detainees compiled by the regional branches of the FAC . The decision on the execution of the NORP prisoners was signed by all the members of the ORG , including PERSON , PERSON , PERSON , Molotov , GPE and GPE .","The killings took place in DATE and DATE . Prisoners from the PERSON camp were killed at a site near GPE , known as ORG ; those from the ORG camp were shot in the GPE NKVD prison and their bodies were buried near the village of Pyatikhatki ; the police officers from PERSON were killed in the GPE ( now Tver ) NKVD prison and buried in ORG . The circumstances of the execution of the prisoners from the prisons in western GPE and GPE have remained unknown to date .","The precise numbers of murdered prisoners were given in a note which PERSON , Chairman of ORG ( ORG ) , wrote on DATE to PERSON , Secretary General of ORG : \u201c All in all , on the basis of decisions of the NORP ORG \u2019s special troika , a total of CARDINAL persons were shot , CARDINAL of them in PERSON ( LOC ) , CARDINAL in the ORG camp near GPE , CARDINAL in the PERSON camp ( NORP district ) and CARDINAL in other camps and prisons in western GPE and GPE \u201d .","In DATE and DATE , first NORP railroad workers and then ORG discovered mass burials near ORG . An international commission consisting of CARDINAL forensic experts and their support staff from GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE was set up and conducted the exhumation works from DATE . The remains of CARDINAL NORP officers were excavated , of whom CARDINAL were identified . The commission concluded that the NORP had been responsible for the massacre .","The NORP authorities responded by putting the blame on the NORP who DATE according to GPE \u2013 had in DATE allegedly taken control of the NORP prisoners and had murdered them . Following the liberation of the GPE district by ORG in DATE , the ORG set up a special commission chaired by PERSON ORG which purported to collect evidence of NORP responsibility for the killing of the NORP officers . In its communiqu\u00e9 of DATE , the commission announced that the NORP prisoners had been executed by the NORP in DATE .","On DATE , in the course of the trial of NORP war criminals before ORG , the NORP prosecutor cited the ORG commission \u2019s report in seeking to charge the NORP forces with the shooting of CARDINAL NORP prisoners in DATE . The charge was dismissed by the GPE and NORP judges for lack of evidence .","On DATE PERSON wrote the above - mentioned note to PERSON , recommending \u201c the destruction of all the [ CARDINAL ] records on the persons shot in DATE in the ... operation ... [ T]he reports of the meetings of the FAC GPE troika that sentenced those persons to be shot , and also the documents on execution of that decision , could be preserved . \u201d","The remaining documents were put in a special file , known as \u201c package no . CARDINAL \u201d , and sealed . In NORP times , only the Secretary General of ORG had the right of access to the file . On DATE its contents were officially made public on the website of ORG ( rusarchives.ru ) . The file contained the following historical documents : PERSON note of DATE , the ORG \u2019s decision of DATE , the pages removed from TIME meeting and PERSON PERSON \u2019s note of CARDINAL DATE .","The first applicant , Mr PERSON , was born in DATE . He is the son of Mr PERSON , born in DATE , who was a lieutenant in ORG before the Second World War .","The second applicant , Mr PERSON , was born in DATE . He is the grandson of Mr PERSON , born in DATE , a lieutenantcolonel in ORG .","Both Mr PERSON and Mr PERSON were taken prisoner of war during the NORP invasion of GPE in DATE and sent to the ORG camp in the GPE . Mr PERSON was listed as no . ORG among the prisoners in the camp , and PERSON as no . CARDINAL . They were subsequently transferred to a prison in GPE and executed in DATE .","The first and second applicants , PERSON and ORG , were born respectively in DATE and DATE . They are the daughter and wife of Mr Wincenty Wo\u0142k , born in DATE , who was a lieutenant in a heavy artillery unit of ORG before the Second World War . He was taken prisoner of war by ORG in TIME DATE and held in GPE special camp ( listed in position CARDINAL on ORG dispatching list CARDINAL\/CARDINAL MONEY ) . He was killed on CARDINAL DATE and buried in GPE . His body was identified during the DATE exhumation ( no . CARDINAL ) .","The third applicant , PERSON , was born in DATE . She is the granddaughter of Mr PERSON , born in DATE , who was a reserve officer in ORG . He was taken prisoner of war by ORG at the NORP border on around DATE and held in GPE special camp ( listed in position CARDINAL on list CARDINAL ) . He was killed and buried in PERSON . His body was identified during the DATE exhumation ( no . CARDINAL ) .","The fourth applicant , PERSON , was born in DATE . She is the daughter of PERSON , born in DATE . An officer of ORG , PERSON was taken POW by the NORP near GPE , GPE , and detained in the special FAC camp at ORG ( pos . CARDINAL ) . He was presumed killed in GPE and buried at Pyatikhatki near GPE ( now GPE ) .","The fifth applicant , Mr PERSON , was born in DATE . He is the son of PERSON , born in DATE . The fifth applicant \u2019s father , a commander of the police station at the NORP - Soviet border in GPE , was arrested there by NORP troops and taken to the special GPE camp at PERSON ( position CARDINAL on list CARDINAL\/CARDINAL ) . He was killed in Tver and buried in ORG .","The sixth applicant , Mr PERSON , was born in DATE . His father , PERSON , born in DATE , was a police officer working in Luck in eastern GPE . In DATE he was arrested by NORP troops and placed in the PERSON camp ( position CARDINAL on list PERSON ) . He was killed in Tver and buried in ORG .","The seventh applicant , Mr PERSON , was born in DATE . His father , Mr PERSON , born in DATE , was headmaster of a primary school in GPE , GPE . He was arrested by the NORP and detained at the ORG camp ( pos . CARDINAL ) . He was presumed killed in GPE and buried in Pyatikhatki .","The eighth and ninth applicants , Mr PERSON and PERSON PERSON , born respectively in DATE and DATE , are the children of PERSON DATE PERSON . Their father was born in DATE and served as a doctor in ORG . He was taken prisoner of war at GPE , GPE , and held at the ORG camp ( pos . DATE ) . He was presumed killed in GPE and buried in Pyatikhatki .","The tenth and eleventh applicants , PERSON and Ms PERSON , born respectively in DATE and DATE , are the daughters of Mr Micha\u0142 Adamczyk . Born in DATE , he was the commander of the GPE police station . He was arrested by the NORP , detained at the PERSON camp ( position CARDINAL on list CARDINAL\/CARDINAL ) , killed in Tver and buried in ORG .","The twelfth applicant , PERSON , born in DATE , is the daughter of PERSON . Her father , a NORP officer , was born in DATE and was held at the PERSON camp after his arrest by NORP troops . He was killed and buried in PERSON ; his body was identified during the DATE exhumation .","The thirteenth applicant , Mr PERSON , born in DATE , is a nephew of Mr PERSON . PERSON , born in DATE , was held at the ORG camp ( pos . CARDINAL ) and was presumed killed in GPE and buried in Pyatikhatki . A list of ORG prisoners which included his name was retrieved from the coat pocket of a NORP officer whose remains , with gunshot wounds to the head , were excavated during a joint NORP exhumation near GPE in DATE .","On DATE , during a visit by NORP President PERSON to GPE , the official news agency of the GPE published a communiqu\u00e9 which affirmed , on the basis of newly disclosed archive materials , that \u201c PERSON , PERSON and their subordinates bore direct responsibility for the crime committed in GPE \u201d .","On DATE a district prosecutor \u2019s office in GPE opened , on its own initiative , a criminal investigation following the discovery of mass graves of NORP citizens in the city \u2019s wooded park . On DATE ORG ) prosecutor \u2019s office instituted a criminal case into \u201c the disappearance \u201d in DATE of the NORP prisoners of war held in the FAC camp in PERSON . On DATE the Chief Military Prosecutor \u2019s Office joined the CARDINAL criminal cases under the number CARDINAL and assigned it to a group of military prosecutors .","In DATE , NORP and NORP specialists carried out exhumations of corpses at the mass burial sites in GPE , ORG and PERSON . They also reviewed the archive documents relating to the PERSON massacre , interviewed CARDINAL witnesses and commissioned medical , graphology and other forensic examinations .","On DATE NORP President PERSON revealed that the NORP officers had been sentenced to death by PERSON and the ORG of ORG . The director of ORG handed over to the NORP authorities a number of documents , including the decision of DATE . During an official visit to GPE on DATE , President PERSON paid tribute to the victims in front of ORG in GPE .","In DATE prosecutors from GPE , GPE , GPE and GPE held a working meeting in GPE , during which they reviewed the progress of the investigation in case no . CARDINAL . The participants agreed that the NORP prosecutors would ask their NORP and NORP counterparts for legal assistance to determine the circumstances of the execution in DATE of CARDINAL NORP citizens who had been arrested .","On DATE the NORP authorities informed their NORP counterparts that they had not been able to uncover any documents relating to the execution of NORP prisoners of war in DATE . In DATE the NORP authorities produced documents concerning the transfer of NORP prisoners from the ORG camp to the ORG prison in GPE .","In DATE , DATE and DATE the President of ORG ( INR ) repeatedly , but unsuccessfully , contacted the NORP ORG with a view to obtaining access to the investigation files .","On DATE the Chief Military Prosecutor \u2019s Office decided to discontinue criminal case no . CARDINAL , apparently on the ground that the persons allegedly responsible for the crime had already died . On DATE ORG for ORG classified CARDINAL volumes of the case file \u2013 out of a total of CARDINAL volumes \u2013 as \u201c top secret \u201d and a further CARDINAL volumes as \u201c for internal use only \u201d . The decision to discontinue the investigation was given \u201c top - secret \u201d classification and its existence was only revealed on DATE at a press conference given by ORG .","Further to a request from ORG for a copy of the decision of DATE , ORG refused to produce it , citing its secrecy classification . However , it transpired from their submissions that the investigation had been discontinued on the basis of LAW ( CARDINAL ) of LAW in connection with the PERSON death .","DATE CARDINAL prosecutors from the INR conducting the investigation into the PERSON massacre and the chief specialist of ORG for ORG against the NORP Nation visited GPE at the invitation of ORG . They examined the CARDINAL volumes of case no . CARDINAL which were not classified , but were not allowed to make any copies .","On DATE the NORP President conveyed to the Speaker of the NORP ORG CARDINAL volumes of the PERSON investigation files . In total , according to the information submitted by ORG , the NORP authorities handed over to them certified copies of CARDINAL volumes that contained CARDINAL pages .","In DATE , Mr DATE a NORP lawyer retained by the applicant PERSON and by the applicant PERSON mother DATE applied to ORG with a request to be provided with documents concerning Mr PERSON , Mr PERSON and a third person .","On DATE ORG replied to counsel that ORG was investigating a criminal case concerning the execution of NORP officers in DATE . In DATE the investigation had recovered CARDINAL bodies in the GPE , GPE and GPE regions and identified some of them , including Mr PERSON and Mr PERSON . Their names had also been found on the list of prisoners in the ORG camp . Any further documents concerning them had been previously destroyed .","On DATE Mr PERSON formally requested the Chief Military Prosecutor \u2019s Office to recognise Mr PERSON \u2019s and PERSON PERSON \u2019s rights as relatives of the executed NORP officers and to provide them with copies of the procedural documents and also of personal documents relating to Mr PERSON and Mr PERSON .","DATE . On DATE the Chief Military Prosecutor \u2019s Office replied that Mr PERSON and Mr PERSON were listed among the prisoners of the ORG camp who had been executed in DATE by the FAC and buried near GPE . No further materials concerning those individuals were available . Copies of the procedural documents could only be given to the officially recognised victims or their representatives .","Subsequently the applicants Mr PERSON and PERSON retained NORP counsel , PERSON . On DATE he asked the Chief Military Prosecutor \u2019s Office for permission to study the case file .","On DATE the Chief Military Prosecutor \u2019s Office replied to PERSON that he would not be allowed to access the file because his clients had not been formally recognised as victims in the case .","Counsel lodged a judicial appeal against ORG Office \u2019s refusals of DATE and DATE . He submitted , in particular , that the status as a victim of a criminal offence should be determined by reference to the factual circumstances , such as whether or not the individual concerned had sustained damage as a result of the offence . From that perspective , the investigator \u2019s decision to recognise someone as a victim should be viewed as formal acknowledgement of such factual circumstances . Counsel sought to have the applicants PERSON and PERSON recognised as victims and to be granted access to the case file .","On DATE ORG of ORG rejected the complaint . It noted that , although Mr PERSON and Mr PERSON had been listed among the prisoners in the ORG camp , their remains had not been among those identified by the investigation . Accordingly , in ORG view , there were no legal grounds to assume that they had died as a result of the offence in question . As to the materials in the case file , ORG observed that the decision to discontinue the criminal proceedings dated DATE had been declared a ORG secret and , for that reason , foreign nationals could not have access to it .","On DATE ORG of GPE upheld that judgment on appeal , reproducing verbatim the reasoning of ORG .","On DATE counsel for the applicants filed a judicial appeal against the prosecutor \u2019s decision of DATE . They submitted that the applicants\u2019 relatives had been among the imprisoned NORP officers whose execution had been ordered by ORG on DATE . However , the applicants had not been granted victim status in case no . CARDINAL and could not file motions and petitions , have access to the file materials or receive copies of the decisions . Counsel also claimed that the investigation had not been effective because no attempt had been made to take biological samples from the applicants in order to identify the exhumed human remains .","On DATE ORG of ORG dismissed the appeal . It found that in DATE ORG and ORG of the Polish ORG had excavated the remains and then reburied them , without identifying the bodies or counting them . A subsequent excavation in DATE had only identified CARDINAL persons and the applicants\u2019 relatives had not been among those identified . ORG acknowledged that the names of the applicants\u2019 relatives had been included in the FAC lists for the PERSON , ORG and ORG camps ; however , \u201c the \u2018 PERSON investigation ... did not establish the fate of the said individuals . \u201d As their bodies had not been identified , there was no proof that the applicants\u2019 relatives had lost their lives as a result of the crime of abuse of power ( Article CARDINAL of the DATE NORP Criminal Code ) referred to in the decision of DATE . Accordingly , there was no basis for granting victim status to the applicants under LAW . Moreover , classified materials could not be made accessible to \u201c representatives of foreign States \u201d .","Counsel submitted a statement of appeal in which they pointed out that the lack of information about the fate of the applicants\u2019 relatives had been the result of an ineffective investigation . The CARDINAL persons had been identified only on the basis of the military identity tags found at the burial places and the investigators had not undertaken any measures or commissioned any forensic examination to identify the exhumed remains . Furthermore , it was a publicly known fact that the DATE excavation had uncovered the remains of CARDINAL people , of whom CARDINAL individuals had been identified . Among those identified were CARDINAL persons whose relatives had been claimants in the proceedings . The granting of victim status to the claimants would have allowed the identification of the remains with the use of genetic methods . Finally , counsel stressed that the PERSON criminal case file did not contain any information supporting the conclusion that any of the NORP officers taken from the FAC camps had survived or died of natural causes .","On DATE ORG of GPE upheld the judgment of DATE in its entirety . It repeated verbatim extensive passages of the findings of ORG , but also added that the decision of DATE could not be quashed because the prescription period had expired and because the proceedings in respect of certain suspects had been discontinued on \u201c rehabilitation grounds \u201d .","On DATE Memorial , a NORP human - rights non - governmental organisation , lodged an application with ORG office to declassify the decision of DATE . In its answer dated DATE , the prosecutor \u2019s office informed PERSON that it was not competent to set aside the classified status which had been approved on DATE by ORG for ORG ( \u201c the Commission \u201d ) .","On DATE Memorial applied to the Commission for declassification of the decision of CARDINAL DATE , claiming that the classification of the materials of the PERSON investigation was morally and legally unacceptable and that it had also been in breach of section CARDINAL of LAW which precluded classification of any information about violations of human rights . By letter of CARDINAL DATE , the ORG replied to PERSON that their application had been examined and rejected , without providing further details .","Memorial challenged the ORG \u2019s refusal before ORG . At the hearing on DATE the court read out the ORG \u2019s letter of DATE addressed to the presiding judge . The letter stated that the Commission had not made any decision on DATE to classify the decision of ORG office from DATE .","To ascertain which authority was actually responsible for the classification of the decision of DATE , the court summoned representatives of the Commission and of ORG office to the following hearing . That hearing was held in camera and the participants were forbidden to reveal any information from the hearing . However , it became publicly known that ORG requested ORG to summon representatives of ORG .","On DATE ORG rejected , following another in camera sitting , PERSON \u2019s application to declassify the decision of CARDINAL DATE . A copy of ORG decision was not made available to the ORG .","Most applicants repeatedly applied to different NORP authorities , first and foremost the Chief Military Prosecutor \u2019s Office , for information on the PERSON criminal investigation and for the rehabilitation of their relatives .","By a letter of DATE sent in response to a rehabilitation request by PERSON , ORG confirmed that her husband Mr Wincenty Wo\u0142k had been held as a prisoner of war in the PERSON camp and had then been executed , along with other prisoners , in DATE . It was stated that her application for rehabilitation would only be considered after the conclusion of the criminal investigation .","Following the discontinuation of the investigation in case no . CARDINAL , on DATE PERSON asked ORG for a copy of the decision on discontinuation of the investigation . By letter of CARDINAL DATE the prosecutor \u2019s office refused to provide it , citing its top - secret classification . On DATE the NORP Embassy in GPE asked the prosecutor \u2019s office for an explanation concerning the rehabilitation of Mr GPE . In a letter of DATE , the prosecutor \u2019s office expressed the view that there was no legal basis for the rehabilitation of Mr PERSON or the other NORP citizens because the investigation had not determined which provision of the DATE LAW had been the basis for their repression . A similarly worded letter of CARDINAL DATE refused a further request to the same effect by PERSON .","On DATE the Chief Military Prosecutor \u2019s Office rejected a request for rehabilitation submitted by counsel on behalf of all the applicants . The prosecutor stated that it was not possible to determine the legal basis for the repression against NORP citizens in DATE . Despite the existence of some documents stating that the applicants\u2019 relatives had been transferred from the ORG camps at ORG , GPE and GPE , the joint efforts by NORP , NORP , NORP and NORP investigators had not uncovered any criminal files or other documents relating to their prosecution in DATE . In the absence of such files it was not possible to decide whether LAW would be applicable . Furthermore , the prosecutor stated that the remains of the applicants\u2019 relatives had not been discovered among the human remains found during the exhumation works .","DATE . Counsel lodged a judicial appeal against the prosecutor \u2019s refusal .","After several rounds of judicial proceedings , on DATE ORG of GPE dismissed the appeal . While the court confirmed that the names of the applicants\u2019 relatives had featured on the FAC lists of prisoners , it pointed out that CARDINAL bodies had been identified as a result of the exhumations conducted in the context of case no . CARDINAL and that the applicants\u2019 relatives had not been among those identified . The court further found that there was no reason to assume that the CARDINAL NORP prisoners of war ( the applicants\u2019 relatives ) had actually been killed , and that NORP counsel had no legal interest in the rehabilitation of NORP citizens .","On DATE ORG rejected , in a summary fashion , an appeal against ORG judgment .","On DATE ORG , the lower chamber of ORG , adopted a statement entitled \u201c On the PERSON tragedy and its victims \u201d which read , in particular , as follows :","\u201c DATE , CARDINAL of NORP citizens held in the prisoner - of - war camps of the FAC of the GPE and in prisons in the western regions of the NORP SSR and NORP SSR were shot dead .","The official NORP propaganda attributed responsibility for this atrocity , which has been given the collective name of the PERSON tragedy , to NORP criminals ... In DATE our country made great strides towards the establishment of the truth about the PERSON tragedy . It was recognised that the mass extermination of NORP citizens on GPE territory during the Second World War had been an arbitrary act by the totalitarian State ...","The published materials that have been kept for DATE in secret archives not only demonstrate the scale of this terrible tragedy but also attest to the fact that the PERSON crime was carried out on the direct orders of PERSON and other NORP leaders ...","Copies of many documents which had been kept in the closed archives of the ORG of ORG of GPE have already been handed over to the NORP side . The members of ORG believe that this work must be carried on . It is necessary to continue studying the archives , verifying the lists of victims , restoring the good names of those who perished in GPE and other places , and uncovering the circumstances of the tragedy ... \u201d","The Convention ( IV ) respecting the Laws and Customs of War on Land and its annex : Regulations concerning the Laws and Customs of War on Land ( The GPE , DATE ) , to which GPE but not the GPE was a party , provided as follows :","\u201c Art . CARDINAL . Prisoners of war are in the power of the hostile Government , but not of the individuals or corps who capture them .","They must be humanely treated .","...","Art . CARDINAL . In addition to the prohibitions provided by special Conventions , it is especially forbidden \u2013","...","( b ) To kill or wound treacherously individuals belonging to the hostile nation or army ;","( c ) To kill or wound an enemy who , having laid down his arms , or having no longer means of defence , has surrendered at discretion ...","...","Art . CARDINAL . No general penalty , pecuniary or otherwise , shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible . \u201d","The Convention relative to the Treatment of Prisoners of War ( GPE , DATE ) provided as follows :","\u201c Art . CARDINAL . Prisoners of war are in the power of the hostile Government , but not of the individuals or formation which captured them .","They shall at all times be humanely treated and protected , particularly against acts of violence , from insults and from public curiosity .","Measures of reprisal against them are forbidden .","...","Art . CARDINAL . No prisoner of war shall be sentenced without being given the opportunity to defend himself .","No prisoner shall be compelled to admit that he is guilty of the offence of which he is accused .","...","Art . CARDINAL . A sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power . \u201d","The Charter ( Statute ) of ORG ( Nuremberg Tribunal ) , set up in pursuance of the agreement signed on DATE by ORG , GPE , GPE and the GPE , contained the following definition of crimes in LAW","\u201c The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :","( a ) crimes against peace : namely , planning , preparation , initiation or waging of a war of aggression , or a war in violation of international treaties , agreements or assurances , or participation in a common plan or conspiracy for the accomplishment of any of the foregoing ;","( b ) war crimes : namely , violations of the laws or customs of war . Such violations shall include , but not be limited to , murder , ill - treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war or persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns or villages , or devastation not justified by military necessity ;","( c ) crimes against humanity : namely , murder , extermination , enslavement , deportation , and other inhumane acts committed against any civilian population , before or during the war ; or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the ORG , whether or not in violation of the domestic law of the country where perpetrated . \u201d","The definition was subsequently codified as ORG in the LAW in GPE and in the Judgment of the ORG , formulated by ORG in DATE under ORG Resolution CARDINAL ( II ) and affirmed by ORG .","DATE . The Convention on the Non - Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity ( CARDINAL DATE ) , to which ORG is a party , provides in particular as follows :","\u201c No statutory limitation shall apply to the following crimes , irrespective of the date of their commission :","( a ) War crimes as they are defined in GPE , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG ...","( b ) ORG against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG ... \u201d","\u201c The States Parties to the present Convention undertake to adopt , in accordance with their respective constitutional processes , any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that , where they exist , such limitations shall be abolished . \u201d","LAW on the Law of Treaties ( DATE ) , to which GPE is a party , provides as follows :","\u201c Every treaty in force is binding upon the parties to it and must be performed by them in good faith . \u201d","\u201c A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ... \u201d","\u201c Unless a different intention appears from the treaty or is otherwise established , its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before DATE of the entry into force of the treaty with respect to that party . \u201d","ORG General Comment No . CARDINAL [ CARDINAL ] , The Nature of the General Legal Obligation Imposed on States Parties to the LAW , adopted on DATE ( CARDINALth meeting ) , reads as follows :","\u201c CARDINAL . The obligations of the LAW in general and article CARDINAL in particular are binding on ORG as a whole . All branches of government ( executive , legislative and judicial ) , and other public or governmental authorities , at whatever level \u2013 national , regional or local \u2013 are in a position to engage the responsibility of ORG . The executive branch that usually represents ORG internationally , including before the ORG , may not point to the fact that an action incompatible with the provisions of the LAW was carried out by another branch of government as a means of seeking to relieve ORG from responsibility for the action and consequent incompatibility . This understanding flows directly from the principle contained in LAW , according to which a ORG \u2018 may not invoke the provisions of its internal law as justification for its failure to perform a treaty\u2019 ... \u201d","DATE LAW , to which ORG is a party , reads as follows :","\u201c No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his free consent to medical or scientific experimentation . \u201d","At its meeting on DATE ORG , established under LAW , expressed the following views upon consideration of communication No . CARDINAL\/CARDINAL , submitted on behalf of PERSON and Mr PERSON against GPE :","\u201c CARDINAL.CARDINAL The ORG notes that the author \u2019s claim that her family was informed of neither the date , nor the hour , nor the place of her son \u2019s execution , nor of the exact place of her son \u2019s subsequent burial , has remained unchallenged . In the absence of any challenge to this claim by ORG , and any other pertinent information from ORG on the practice of execution of capital sentences , due weight must be given to the author \u2019s allegation . ORG understands the continued anguish and mental stress caused to the author , as the mother of a condemned prisoner , by the persisting uncertainty of the circumstances that led to his execution , as well as the location of his gravesite . The complete secrecy surrounding the date of execution , and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress . The ORG considers that the authorities\u2019 initial failure to notify the author of the scheduled date for the execution of her son , and their subsequent persistent failure to notify her of the location of her son \u2019s grave amounts to inhuman treatment of the author , in violation of article CARDINAL of the LAW . \u201d","At its meeting on DATE ORG expressed the following views upon consideration of communication No . DATE , submitted on behalf of PERSON , PERSON , PERSON and PERSON against GPE :","\u201c CARDINAL The Committee noted ORG arguments concerning the inadmissibility of the communication ratione temporis . Having also noted the ORG arguments , the ORG considered that a distinction should be drawn between the complaint relating to Mr. PERSON and the complaint concerning Ms. PERSON and her children . The ORG considered that the death of PERSON , which may have involved violations of several articles of the LAW , occurred on DATE , hence before the LAW and LAW entered into force for GPE . This part of the communication was therefore inadmissible ratione temporis . PERSON death certificate of CARDINAL DATE , stating that he died of natural causes - contrary to the facts , which are public knowledge and confirmed by ORG ... - and the authorities\u2019 failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms. PERSON and her children ...","CARDINAL Concerning the alleged violation of article CARDINAL , ORG understands the anguish and psychological pressure which Ms. PERSON and her sons , the family of a man killed in disputed circumstances , have suffered and continue to suffer because they still do not know the circumstances surrounding the death of PERSON , or the precise location where his remains were officially buried . PERSON family have the right to know the circumstances of his death , and the ORG points out that any complaint relating to acts prohibited under article CARDINAL of the LAW must be investigated rapidly and impartially by the competent authorities . In addition , the ORG notes , as it did during its deliberations on admissibility , the failure to correct PERSON death certificate of CARDINAL DATE , which records a natural death contrary to the publicly known facts , which have been confirmed by ORG . ORG considers that the refusal to conduct an investigation into the death of PERSON , the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. PERSON and her sons , in breach of LAW ... \u201d","Article CARDINAL sets out the grounds for discontinuation of criminal proceedings . Paragraph CARDINAL ( CARDINAL ) specifies that the proceedings are to be discontinued , in particular , in the event of the suspect or defendant \u2019s death .","Article CARDINAL defines a \u201c victim \u201d as an individual who has sustained physical , pecuniary or non - pecuniary damage as the result of a crime . The decision to recognise the individual as a \u201c victim \u201d must be made by the examiner , investigator , prosecutor or court .","According to the preamble , the purpose of LAW is the rehabilitation of all victims of political repression who were prosecuted on the territory of GPE after DATE , and restoration of their civil rights . Political repression is defined as any measure of restraint , including a deprivation of life , which was imposed by the ORG for political motives ( section CARDINAL ) . Section CARDINAL describes the categories of persons who are eligible for rehabilitation ; section CARDINAL contains the list of criminal offences , such as high treason , espionage , violence against prisoners of war , murder , robbery , war crimes , crimes against humanity , in respect of which no rehabilitation is allowed .","Section CARDINAL of LAW ( Law no . PERSON of DATE ) contains a list of information which may not be declared a ORG secret or classified . The list includes in particular information about violations of rights and freedoms of individuals and citizens and information on unlawful actions by the ORG authorities or officials .","On DATE the Government adopted the Regulation on preparing ORG secret information for transfer to foreign states and international organisations ( no . CARDINAL ) . It provides that a decision on transferring such information may be made by ORG on the basis of a report prepared by ORG on ORG ( \u00a7 CARDINAL ) . The recipient party must undertake an obligation to protect the classified information by way of entering into an international treaty which would establish , among other matters , the procedure for transferring information , the confidentiality clause and the dispute resolution procedure ( \u00a7 CARDINAL ) .","Chapter CARDINAL contains a list of crimes against peace and security of humankind . Article CARDINAL prohibits in particular \u201c cruel treatment of prisoners of war or civilians \u201d , an offence punishable by up to twenty years\u2019 imprisonment .","Article CARDINAL \u00a7 CARDINAL stipulates that the offences defined in Articles CARDINAL ( War ) , CARDINAL ( Prohibited means of war ) , CARDINAL ( Genocide ) and CARDINAL ( Ecocide ) are imprescriptible ."],"violated_articles":["3","38"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-80077","languageisocode":"ENG","respondent":"BGR","branch":"CHAMBER","date":2007,"docname":"CASE OF IVAN VASILEV v. BULGARIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings","judges":"Peer Lorenzen","text":["On TIME CARDINAL DATE the applicant , at that time aged DATE , went out with several friends in the centre of GPE to play electronic games . On the way back he left the main group to see a classmate of his and her sister to their door . After he had walked the girls home at TIME , he ran back to rejoin his friends . The applicant was wearing shorts , a yellow teeshirt and a green sleeveless jacket .","On TIME , some time after TIME , the PERSON police received a report that an icecream booth in the centre of the town had been vandalised by QUANTITY individuals . A police patrol was dispatched to the scene and arrested the first of them , but the second managed to get away . All patrols in the area were put on alert and ordered to track him down . The description given over the police radio was of a man wearing short pants and a lightcoloured teeshirt .","At that time Mr PERSON and PERSON , both trainee police officers , were in the area of the incident , patrolling in PERSON private car . Although they were supposed to be accompanied by a supervising police officer , chief sergeant A. , they were patrolling by themselves , as sergeant PERSON had been dispatched elsewhere . Their car was in a street which was not well lit . Seeing the applicant running past the car , they assumed that he was the offender at large . They got out of the car and gave chase . The applicant heard their steps , but , seeing that they had come out of an unmarked rather than a police car , kept on running . It was disputed whether or not Mr PERSON and PERSON had shouted \u201c Stop ! Police ! \u201d after the applicant . They submitted that they had done so , whereas the applicant and several witnesses stated that they had not heard the officers shouting . The chase continued for TIME . The applicant ran by ORG Shortly afterwards , Mr PERSON caught up with the applicant in front of a beauty parlour and apparently tripped him over . The applicant fell on the ground , face down . Mr PERSON then started hitting the applicant 's back and legs with a truncheon and kicking his torso . Soon after that Mr GPE caught up with them and also started hitting the applicant 's back and legs with a truncheon and kicking his torso . The applicant averred that Mr V.E. had sat on his back and had delivered several truncheon blows to his head . The applicant was crying and begging the officers to stop , insisting that he had done nothing wrong . Mr GPE was an eyewitness to the incident , and so were a Mr P.S. and a Mr V.K.","Shortly afterwards , chief sergeants PERSON and PERSON arrived at the scene . By that time the physical assault on the applicant had stopped . The applicant was lying on the ground and Mr PERSON and Mr GPE were standing beside him . The applicant 's teeshirt was soaked with blood coming from the neck area .","Chief sergeants PERSON and GPE helped the applicant get into their patrol car . On the way to the hospital they stopped at a fountain and told him to wash the blood off his neck . The applicant told the officers that he felt pain in his legs and in his right lumbar area .","The applicant was admitted to the emergency ward of ORG at TIME Upon his admission he stated that he could not see . His blood pressure was measured to be CARDINAL\/CARDINAL . It was found that he had a traumaticlacerated injury on the back of his head . He was also complaining of severe pain in the area of the right kidney . He was taken to the surgical ward and the injury on his head was treated .","From the hospital the applicant was taken to the police station , where he was questioned at TIME It was established that he had nothing to do with the breaking of the icecream booth . After the questioning an officer took the applicant home . When the applicant 's mother saw the state the applicant was in , she asked a friend to drive the applicant and herself back to the emergency ward of ORG . There she was informed that the applicant had already been treated and that there was nothing more the staff could do , as there were no doctors on the ward at that time , only paramedics .","The applicant and his mother then went to the police station to find out why he had been beaten and apprise the police of the names of the eyewitnesses to the incident . They were given the names of the officers who had assaulted the applicant and TIME left the station and went home .","When the severe pain in the applicant 's right lumbar area continued through TIME and blood showed up in his urine , a doctor was called in and examined the applicant at TIME on DATE . He found that the applicant had a reddening of the skin in the groins , parallel traces of blood suffusions and grazes on the calves , CARDINAL on the left leg and CARDINAL on the right leg , and a head injury .","At TIME on CARDINAL DATE the applicant went once more to the emergency ward of ORG . At TIME he was admitted to the surgical ward . He was diagnosed as suffering from contusion in the right lumbar area , commotion of the right kidney and haematuria ( blood in the urine ) , and was treated with styptics and antibiotics . He remained in hospital until DATE .","DATE , on DATE , the applicant was urgently admitted to the urology centre of ORG in GPE because of macroscopic haematuria ( high levels of blood in his urine ) and sustained dull pain in his right lumbar area . His right kidney was found to be surrounded by a haematoma and retaining liquid . It was established that his blood pressure was ORG because of , among other reasons , the pressure from the haematoma on the kidney . The applicant was treated with spasmolytics , analgesics and antibiotics . The applicant had to be released on DATE due to an inhospital infection outbreak .","NORP Throughout DATE the applicant underwent numerous examinations of his right kidney .","On DATE the applicant was admitted to the urology ward of ORG \u201c Pirogov \u201d , after complaining from dull pain in his right lumbar area . He was diagnosed as suffering from hydronephrosis of the right kidney ( pathological chronic enlargement of the collecting channels of a kidney , leading to the compression and the eventual destruction of kidney tissue and the deterioration of the kidney function ) . On DATE he underwent surgery and his right kidney was removed . On CARDINAL DATE he was released from hospital .","On DATE the applicant 's mother complained about his beating to ORG . On DATE the applicant 's father also lodged a complaint with ORG .","On DATE ORG , which was competent to deal with offences allegedly committed by police officers , opened criminal proceedings against Mr PERSON and Mr GPE","NORP The investigator to whom the case was assigned conducted a series of interviews on CARDINAL , DATE and DATE . He questioned the applicant , PERSON I.P. , PERSON and several other witnesses . On DATE and CARDINAL DATE the investigator questioned chief sergeant PERSON and CARDINAL other police officers .","On DATE Mr PERSON and PERSON were charged and questioned . During questioning PERSON stated that he had tripped the applicant but had not subjected him to any other violence . PERSON stated that he had only hit the applicant once with a truncheon on the legs , but had not subjected him to any other violence .","On an unspecified date the investigator ordered a medical expert report to determine the extent of the applicant 's injuries . The report was drawn up by PERSON , head of the forensic medicine ward of ORG . She found that the applicant had had a wound on his head , haematomas and grazing on his legs , contusion of the right lumbar area and haematuria . She concluded that the beating had caused the applicant a shortterm lifethreatening health disorder , due to a traumatic - haemorrhagic shock resulting from the contusion of the right kidney and a massive haematoma around the kidney .","On DATE the applicant 's mother , acting for the applicant , who was still underage , submitted a civil claim against Mr PERSON and Mr V.E. She sought CARDINAL old NORP levs ( ORG ) on the applicant 's behalf .","Another series of interviews was conducted on DATE by another investigator at ORG . Mr PERSON and Mr DATE were questioned .","On DATE ORG submitted to ORG an indictment against Mr PERSON and PERSON GPE , charging them with causing intermediate bodily harm to the applicant . On DATE the case was set down for hearing .","The first hearing took place on DATE . Mr PERSON and PERSON GPE were represented by PERSON , a former military prosecutorgeneral . The applicant , who was also represented by counsel , amended his civil claim , seeking interest as from DATE of the beating and naming ORG as a third defendant . The court heard Mr PERSON , PERSON , the applicant , the applicant 's mother , chief sergeant PERSON , several other police officers , Mr GPE , Mr PERSON and Mr DATE Noting that the statements of the accused differed from those of the eyewitnesses , the court carried out a confrontation . Finally , the court heard Dr PERSON , the medical expert who had given an opinion about the extent of the applicant 's injuries . The accused disputed Dr PERSON 's conclusions and requested a new medical report to be drawn up by CARDINAL experts , excluding Dr PERSON The court acceded to the request and ordered a new expert report , to be drawn up by CARDINAL medical experts .","In their report the CARDINAL medical experts ( PERSON , head of the forensic medicine and ethics department of ORG in GPE , PERSON , head of department at ORG of the Institute , and PERSON , senior assistant at the anaesthesiology and intensive care departments of ORG concluded that as a result of the DATE incident the applicant had suffered a contusion of the right kidney , haematomas and grazing of the CARDINAL legs , a wound on the head and a reddening in the right part of the groins . Unlike PERSON , they concluded that the traumaticneurogenic shock suffered by the applicant had not become truly lifethreatening . They also found that before the incident the applicant had been suffering from a congenital kidney anomaly , which had been the reason for the applicant 's haematuria after the incident . In the experts ' view , the applicant 's kidney injury had not been lifethreatening and had had no longlasting effects on his health . The beating had caused the applicant only a temporary ( CARDINAL or threeweek ) health problem .","The next hearing took place on DATE . The court heard the CARDINAL medical experts , who stated that they adhered to the conclusions given in their report . The prosecutor noted that the first report , drawn up by Dr PERSON , and the second report , drawn up by the CARDINAL medical experts , substantially differed on the issue of the extent of the injuries suffered by the applicant . He therefore requested an additional expert report , to be drawn up by CARDINAL experts , including Dr PERSON The court acceded to the request .","On DATE the report of the CARDINAL medical experts was ready . They concluded that the applicant had suffered a traumaticneurogenic shock , which , however , had not deteriorated and had not become lifethreatening . They also concluded that before the incident the applicant had been suffering from a congenital kidney anomaly , which had been the reason for his haematuria after the incident . In the experts ' view , the applicant 's kidney injury had not become lifethreatening . As regards the later surgical removal of the kidney and its potential causal link with the beating , the experts were of the opinion that , in view of the long time - span between the beating ( DATE ) and the surgery ( DATE ) and the nature of the injury , it could not be concluded that the removal of the kidney had been a direct and proximate consequence of the beating . Additionally , the applicant 's congenital kidney anomaly had been prone to natural deterioration and could have led on its own to a decline in the kidney function , which was what had made the removal necessary . It could not be categorically established that the beating had not contributed to the need for the removal of the kidney , but the main factor had been the congenital anomaly .","After several adjournments due to difficulties with the attendance of all CARDINAL medical experts , ORG listed a hearing for DATE . At that hearing the court heard all CARDINAL medical experts . CARDINAL of them stated that they adhered to the conclusions made in their report . By contrast , Dr PERSON stated that she did not agree with the conclusions of the report and that she still maintained the opinion expressed in her initial report . The applicant presented Xrays of his kidneys and , after examining them , the CARDINAL experts stated that they still adhered to the conclusions reached in their report . The applicant increased his civil claim to BGL CARDINAL . In his concluding argument the public prosecutor stated that , in view of the experts ' opinion , he did not pursue the charge of intermediate bodily harm , and urged the court to characterise the officers ' act as inflicting minor bodily harm .","In a judgment of CARDINAL DATE ORG found Mr PERSON and PERSON guilty of inflicting the applicant minor bodily harm and not guilty of inflicting him intermediate bodily harm . It sentenced them to DATE imprisonment , suspended for DATE . The court also partially allowed the applicant 's claim for damages , awarding him ORG CARDINAL , to be paid jointly and severally by the CARDINAL officers and the vicariously liable ORG in GPE .","The court found that Mr PERSON had tripped the applicant and that the applicant had fallen on the ground face down . After that Mr PERSON had delivered a number of blows on the applicant 's back and legs with a truncheon and had kicked several times his torso . When PERSON GPE had arrived he had also hit the applicant 's back and legs with a truncheon and had kicked his torso . During the beating the applicant had told the CARDINAL accused that he had done nothing wrong . The court stated that it did not find the accused 's averment that they had not beaten the applicant persuasive , because it was disproved by the testimony of QUANTITY eyewitnesses NORP and Mr DATE and of the applicant himself . The court considered that the eyewitnesses ' and the applicant 's testimony was consistent and reliable .","The court also examined the officers ' assertion that they had acted lawfully , in a situation calling for the arrest of a suspect , and that they had inflicted bodily harm in their efforts to subdue the applicant . In that connection , it noted that the accused were substantially stronger physically than the applicant , that Mr GPE , Mr GPE and chief sergeant PERSON had testified that the applicant had not tried to resist , and that at the time of the incident the applicant had been DATE . The court accordingly rejected the assertion .","As regards the extent of the applicant 's injuries , the court held that the opinion of the CARDINAL medical experts , which appeared objective , impartial , consistent , wellreasoned and in conformity with the medical documents in the case file , should be given more credit than that of Dr FAC In the court 's view , the CARDINAL experts ' arguments confuted her opinion . The court therefore held that as a result of the beating the applicant had suffered a temporary ( CARDINAL or threeweek ) nonlifethreatening health disorder , which amounted to minor bodily harm within the meaning of ORG CARDINAL to CARDINAL of LAW of DATE ( \u201c the ORG \u201d ) .","Finally , the court rejected Mr PERSON and Mr GPE 's defence under LAW that they had only used the force necessary to arrest a presumed offender , injuring the applicant in the process of subduing his resistance . The court acknowledged the great disparity in terms of physical strength between the CARDINAL policemen and the applicant . Moreover , the other witnesses had clearly indicated that the applicant had not put up any resistance requiring the use of force . Finally , at the time of the incident the applicant had been DATE and his age was visible from his physical features .","Mr PERSON and Mr GPE appealed , arguing that their actions had not constituted an offence , as they had acted within the bounds allowed by LAW of DATE . In the alternative , they submitted that the sentences imposed on them were too harsh . The applicant also appealed , arguing that the amount of damages awarded to him was too low .","ORG held a hearing on DATE . The officers were represented by their counsel , PERSON The applicant was represented by CARDINAL lawyers .","In a judgment of CARDINAL DATE ORG upheld ORG judgment . It held that the manner in which the applicant 's injuries had been caused had been correctly established by the lower court . There existed direct evidence that the applicant had been subjected to violence even after he had been brought to the ground and had not had the possibility to resist or run away . Even if the officers had misidentified the applicant , this had not legally justified the physical assault that they had inflicted on him . Moreover , the use of force had continued after the applicant had been subdued . There existed a direct causal link between the violence and the injuries sustained , as confirmed by all of the medical expert reports . The court went on to state that it did not agree with the lower court 's conclusion as regards the extent of the applicant 's injury . To exclude the causal link between the surgical removal of the applicant 's right kidney and the incident of CARDINAL DATE , ORG had relied on the conclusion of CARDINAL medical experts and had rejected as illogical the conclusion of Dr PERSON However , that court had disregarded that conclusion on purely formal grounds , without discussing its main points . It was unclear whether the opinion of the CARDINAL experts was in fact based on the raw medical data , which in turn cast doubt on its correctness . The court concluded that if the lower court had taken into account these considerations , it could have made a different finding as to the reason for the surgical removal of the applicant 's right kidney . However , since no appeal had been lodged by the prosecution , the court only noted this factual mistake and did not correct it in its judgment by holding that the applicant had suffered intermediate bodily harm , as that would worsen the accused 's position .","Mr PERSON and PERSON appealed on points of law to ORG . The applicant also appealed , requesting an increase in the amount of damages awarded .","ORG held a hearing on DATE . It heard the applicant 's and the officers ' oral argument and accepted their written pleadings for consideration . The prosecutor present at the hearing submitted that both appeals were groundless and should be dismissed .","In a final judgment of CARDINAL DATE ORG reversed Mr PERSON 's and PERSON convictions and acquitted them . It also dismissed the applicant 's civil claim . Its opinion read as follows :","\u201c ... The courts below arrived at the erroneous conclusion that the CARDINAL [ officers ] ' act had been wrongful and contrary to LAW ...","This is so for the following reasons :","The [ officers ' ] act does not amount to an offence , as they acted under the prerequisites of section CARDINAL(CARDINAL ) , points CARDINAL and CARDINAL of LAW [ of DATE ] and within the bounds set by this LAW on the use of physical force , namely information about the perpetration of a publicly prosecutable offence in the centre of GPE , which was broadcast over the [ police ] radio station and was received by [ Mr PERSON ] and [ Mr GPE ] . Moreover , the description of the perpetrator who had fled from the crime scene coincided with the appearance of the [ applicant ] , and for this reason the ... officers mistook him for the wanted offender . What is more , the [ applicant ] did not obey and through his actions refused to comply with the lawful order of the [ officers ] , who tried to stop him by shouting ' Stop ! Police ! ' Instead , he tried to escape , in order to avoid arrest by the [ police ] , who , in line with their duties , gave chase with a view to arresting the suspect . As it were , not only did the [ applicant ] not obey , but he also resisted the [ police officers ] . Finally , the injuries he sustained upon his arrest are within what is permissible under sections DATE and CARDINAL of the [ LAW of DATE ] .","The overall situation , including the [ applicant ] 's inadequate behaviour , led the [ officers ] to conclude that he was the offender who was being sought after and who had to be caught , overawed and apprehended . This conclusion and the lawful actions of the officers , including the use of force with its consequences for the [ applicant ] , rule out the criminality of their act . [ To hold o]therwise [ would mean to render ] the abovementioned provisions of the [ LAW of DATE ] nugatory . \u201d","Section CARDINAL(CARDINAL ) of the now repealed LAW of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043d\u0430\u0446\u0438\u043e\u043d\u0430\u043b\u043d\u0430\u0442\u0430 \u043f\u043e\u043b\u0438\u0446\u0438\u044f \u201c ) read , as relevant :","\u201c ... police [ officers ] may use ... force ... when performing their duties only if they [ have no alternative course of action ] in cases of :","NORP resistance or refusal [ by a person ] to obey a lawful order ;","NORP arrest of an offender who does not obey or resists the police [ officers ] ; ... \u201d","By CARDINAL ) of the LAW , the use of force had to be commensurate to , inter alia , the specific circumstances and the personality of the offender . Section CARDINAL(CARDINAL ) of the LAW directed police officers to \u201c protect , if possible , the health ... of the persons against whom [ force was being used ] . \u201d Section CARDINAL(CARDINAL ) of the LAW provided that the use of force had to be discontinued immediately after its aim had been attained .","Article CARDINAL LAW , adopted in DATE , provides that the injuring of alleged offenders during their arrest is not a criminal act , provided that there exists no other way for their apprehension and the measures used during the arrest do not exceed what is necessary and lawful . By paragraph CARDINAL of this Article , there is such an excess where there exists an obvious disproportion between the character and the gravity of the offence allegedly perpetrated by the arrestee and the circumstances of the arrest , and also where the arrestee is unnecessarily and excessively harmed . The persons effecting the arrest are criminally liable only if they cause the harm wilfully .","Articles CARDINAL , CARDINAL and CARDINAL of the ORG make it an offence to inflict grievous , intermediate or minor bodily harm on another person . The ORG defines intermediate bodily harm as , inter alia , CARDINAL which involves a temporary lifethreatening health disorder or a permanent nonlifethreatening health disorder ( Article CARDINAL \u00a7 CARDINAL of the ORG ) . Minor bodily harm is one which does involve a health disorder , but is not specifically referred to in Articles CARDINAL \u00a7 CARDINAL and CARDINAL \u00a7 CARDINAL of the ORG ( Article MONEY \u00a7 CARDINAL of the ORG ) .","If the bodily harm is inflicted by a police officer in the course of or in connection with the performance of his duties , the offence is an aggravated one ( Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the ORG ) . It is publicly prosecutable ( LAW ) .","Criminal proceedings for publicly prosecutable offences could be instituted only by the decision of a prosecutor or an investigator ( Article CARDINAL of the ORG , as in force at the relevant time ) . The prosecutor or the investigator had to open an investigation whenever they received information , supported by sufficient evidence , that an offence had been committed ( Articles CARDINAL and CARDINAL of the ORG , as in force at the relevant time ) .","Before DATE the offences allegedly committed by police officers were tried by military courts ( LAW ( CARDINAL ) of the ORG , as in force at the relevant time ) . In DATE this text was amended to provide that the military courts no longer had jurisdiction in respect of such offences ( Article CARDINAL \u00a7 CARDINAL ( CARDINAL ) of the ORG , as amended in DATE ) . A new amendment in DATE reverted to the old regime ( LAW ( CARDINAL ) of the ORG , as amended in DATE and in force until DATE ) . If a case falls within the jurisdiction of the military courts , the preliminary investigation is handled by military investigators and prosecutors .","Section CARDINAL(CARDINAL ) of ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0437\u0430\u0434\u044a\u043b\u0436\u0435\u043d\u0438\u044f\u0442\u0430 \u0438 \u0434\u043e\u0433\u043e\u0432\u043e\u0440\u0438\u0442\u0435 \u201c ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another person . LAW provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-59536","languageisocode":"ENG","respondent":"CHE","branch":"CHAMBER","date":2001,"docname":"CASE OF F.R. v. SWITZERLAND","importance":3,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award","judges":"Christos Rozakis","text":["The applicant , a NORP citizen born in DATE , is a businessman residing in PERSON in GPE .","The applicant \u2019s son founded the ORG , a construction company , whereby the applicant acted as guarantor ( PERSON ) for a credit . He also assisted his son in various administrative tasks concerning the company .","In DATE , the GPE company went bankrupt . ORG ( Ausgleichskasse ) of ORG suffered losses in particular as to contributions of the company to the old age insurance scheme . ORG regarded the applicant as being the administrative and commercial manager of the company and therefore liable for the sum of MONEY ( CHF ) .","The applicant objected , whereupon on DATE and DATE ORG introduced a compensation action against the applicant .","NORP The action was upheld on DATE by ORG ( Verwaltungsgericht ) of ORG which nevertheless reduced the amount to CHF CARDINAL,CARDINAL.CARDINAL .","In its decision , ORG referred , inter alia , to the statement of a certain PERSON , a former member of the board of the company , according to which the applicant had granted the company an advance payment . ORG then examined whether the applicant had in fact had the position of an executive ( Organ ) of the company and whether in this respect it was necessary to hear the witnesses PERSON . R and PERSON The decision referred , inter alia , to CARDINAL letters of the applicant to ORG , i.e. , of DATE in which he stated that the company no longer had any assets , and of DATE in which he had signed \" as a representative \" . As a result , the ORG concluded that the applicant had in fact had the position of an executive of the company , for which reason further evidence was not necessary .","On DATE the applicant filed an administrative law appeal with ORG ( Eidgen\u00f6ssisches Versicherungsgericht ) , contesting the action , and requesting the hearing of various witnesses , inter alia , PERSON . NORP and PERSON as well as ORG where he had introduced proceedings against a certain R.H.","The applicant \u2019s appeal was transmitted for observations to ORG of ORG , ORG of ORG , and ORG ( ORG f\u00fcr ORG ) .","On DATE , ORG of the Canton of Schwyz submitted its observations on the applicant \u2019s administrative law appeal to ORG , the statement numbering CARDINAL pages . ORG proposed in particular the dismissal of the applicant \u2019s appeal .","In its statement ORG commenced with a \" preliminary remark \" according to which the applicant had not , in the administrative proceedings , referred to the separate procedure before another court concerning a certain PERSON As a result , ORG had not regarded it necessary to consult that case - file , and it could not be said that ORG had not sufficiently examined the facts . ORG further stated that the applicant had implicitly admitted that he was an executive of the GPE company when filing the letters of DATE and DATE .","According to the submissions of ORG , it further transpired from separate execution proceedings that various foreign currency deals had been transacted by the applicant \u2019s family over the GPE , leading to returns of CHF MONEY . However , the ORG was concerned with constructions , not with foreign currency deals . It could not be said that the applicant had not been in a position to take decisions with binding legal effect . ORG also considered it unnecessary to hear the witnesses PERSON . NORP and PERSON Thus , in its decision it had considered that the CARDINAL witnesses were quarrelling with each other , and the applicant had not shown in what respect the hearing of these witnesses would be useful .","ORG submitted a similar statement , whereas ORG did not file any submissions .","On DATE ORG transmitted the statement of ORG to the applicant for information , expressing its regret that it had by mistake not done so earlier on .","On DATE the applicant submitted a statement on the submissions of ORG of DATE . The front page read :","\" the observations contain three important new points which were not contained in the decision of ORG . I could not therefore make any observations thereupon in my administrative law appeal of DATE . As a result , it must be possible for me now to make such observations which I am herewith submitting . \"","NORP The applicant then pointed out that ORG had stated that he had never mentioned a further set of proceedings against a certain PERSON This was a new point . He had only found out about PERSON in the decision of ORG itself , for which reason he could not have commented thereupon in the proceedings before ORG . The applicant furthermore pointed out that ORG had made new submissions when stating that in view of his letters of DATE and DATE he had effectively accepted having the position of an executive of the ORG company .","Finally , the applicant explained that ORG submissions were also new to the extent that reference was made to foreign currency deals . This information came from the separate proceedings before ORG , ORG , and not from him . To the extent that ORG concluded on the basis of this information that the applicant had , in fact , had the position of an executive , he should have been permitted to comment on this point .","ORG dismissed the applicant \u2019s administrative law appeal on DATE .","NORP The decision first recalled the procedure before ORG itself , noting in particular that the applicant had submitted further observations on CARDINAL DATE without being requested to do so . The court then noted that according to LAW of LAW ( Organisationsgesetz ) , observations were only exceptionally exchanged a second time between the parties . The decision continued :","\" ( Such a second exchange of observations ) will be required for reasons of a fair hearing if in the observations new factual statements have been made , the correctness of which does not immediately transpire from the case - file and which are of relevance for the decision . As regards new legal arguments it must be borne in mind that ORG is called upon ex officio to apply the correct law . The mere fact that these observations refer to supporting arguments in addition to those mentioned in the contested decision can not justify the possibility to reply thereto . It would be different , if ORG were of the opinion that the contested decision could be upheld , not with the reasons originally given , but with other reasons , now mentioned in the observations ...","In the light of these principles the applicant \u2019s request along these lines , namely to have a second exchange of observations , appears unfounded . It is irrelevant in this respect that the observations of ORG were only submitted belatedly ( nachtr\u00e4glich ) . Thus , in those observations no new factual or legal points were raised : Rather , the circumstances mentioned by the applicant ( statement of NORP about advances paid to the capital of the company ; profits from currency deals ) disclose that they were already known in the case - file stemming from the proceedings of the PERSON and PERSON execution authorities and thus clearly transpired from the file . Therefore , the applicant could , and ought to , have prepared everything necessary in order to avoid a second exchange of observations ... Furthermore , the new point of the previous court which he has mentioned , regarding his executive position , merely concerns an additional argument which further supports the grounds mentioned in the contested decision . This does not warrant the possibility of a further reply . As a result , the applicant \u2019s observations , submitted without being so requested , can not be legally considered ( aus dem Recht zu weisen ) . \"","Insofar as the applicant complained that certain witnesses had not been heard , ORG considered , inter alia , that ORG had pertinently mentioned the circumstances under which a company executive became liable for the company \u2019s debts . In respect of the witnesses PERSON . NORP and PERSON , the hearing of which had been requested by the applicant , ORG referred to the accurate observations filed by ORG on DATE .","According to LAW of LAW ( Organisationsgesetz ) , ORG is called upon to examine administrative law appeals against cantonal decisions in last resort concerning matters of social insurance . In principle , the court is free to establish the facts . However , according to LAW , it considers itself bound by the facts if the lower instance which determined them was a court to the extent that the determination is not manifestly incorrect , incomplete or in breach of essential procedural rules . As a result , there is only a limited possibility to put forward new facts in the proceedings before ORG ( see Bundesgerichtsentscheide [ ORG ] CARDINAL V CARDINAL ) .","In the administrative law proceedings before ORG there is , in principle , CARDINAL exchange of statements in which the other parties and instances concerned may file their observations on the administrative law appeal ( LAW of LAW ) . According to the practice of ORG , a second exchange of statements will take place if new facts transpire in the observations the correctness of which can not be established in the case - file and which observations appear pertinent for the final decision . If new legal considerations are raised for the first time in these observations , a second exchange of statements will take place if the contested decision can no longer be based on the reasons given by the lower court ( see ORG CARDINAL ; CARDINAL ORG ; CARDINAL Ia CARDINAL ; CARDINAL I CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67961","languageisocode":"ENG","respondent":"BEL","branch":"CHAMBER","date":2005,"docname":"CASE OF CAPEAU v. BELGIUM","importance":1,"conclusion":"Violation of Art. 6-2;Not necessary to examine Art. 14","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","On DATE he was arrested in connection with an investigation concerning a case of arson committed on DATE .","On DATE ORG of ORG refused to extend the validity of the arrest warrant . On appeal , ORG of ORG overturned that decision and prolonged the applicant 's pre - trial detention .","On DATE the investigating judge rescinded the warrant concerned .","On DATE and DATE respectively ORG and ORG , ruling on the action to be taken on the basis of the investigation to date , held that there was insufficient evidence to commit the applicant for trial and discontinued the proceedings .","On DATE the applicant claimed compensation for unwarranted pre - trial detention , relying on the Law of CARDINAL DATE ( see \u201c Relevant domestic law \u201d below ) .","On DATE the Minister of ORG refused the applicant 's claim on the ground that he had not \u201c established his innocence by adducing factual evidence or submitting legal argument to that effect \u201d , as required by section CARDINAL(CARDINAL)(b ) of the Law of DATE . That requirement was justified , according to the Minister , in the case of an order or judgment discontinuing criminal proceedings , given that a discontinuation decision was not a bar to the reopening of the case if new information or evidence were to come to light .","On DATE the applicant contested the Minister 's decision by means of an application to the Unwarranted Pre - trial ORG .","On DATE the applicant appeared before ORG , which upheld the refusal of his claim by a decision taken on DATE and served on the applicant on DATE . It noted that the grounds for presuming the guilt of the applicant , who had always denied committing the offence he stood accused of when appearing before the courts investigating the charge , had been held to be insufficient to justify committing him for trial . It observed that , although the applicant had announced his intention of submitting a pleading setting out the evidence in the file which \u201c amply \u201d proved his innocence , he had not done so and had not replied to the ORG 's submissions . Consequently , ORG found that he had not proved his innocence as the law required ( dat verzoeker derhalve het bij de wet van hem vereiste bewijs van onschuld niet bijbrengt ) .","At the material time the relevant provisions of the Law of DATE on compensation for unwarranted pre - trial detention read as follows :","\u201c ( CARDINAL ) Any person deprived of his liberty in conditions incompatible with LAW DATE , approved by LAW of CARDINAL DATE , shall be entitled to compensation .","( CARDINAL ) The action for compensation shall be brought in the ordinary courts in accordance with the formalities laid down in LAW and directed against ORG in the person of PERSON . \u201d","\u201c ( CARDINAL ) A compensation claim may be lodged by any person held in pre - trial detention for DATE , provided the detention concerned or its prolongation were not provoked by his own conduct :","( a ) if he has been exculpated directly or indirectly by a judicial decision that has become final ;","( b ) if after being discharged through an order or judgment discontinuing the proceedings he establishes his innocence by adducing factual evidence or submitting legal argument to that effect ;","( c ) if he has been arrested or kept in detention after expiry of any statutory limitation period ;","( d ) if he has been discharged through an order or judgment discontinuing the proceedings which expressly states that the act which gave rise to the pre - trial detention did not constitute a criminal offence .","( CARDINAL ) The amount of compensation shall be determined equitably , and with regard to all the circumstances of public and private interest .","( CARDINAL ) Where the person concerned is not able to bring compensation proceedings in the ordinary courts , compensation may be claimed by means of a written request to the Minister of ORG , who shall rule on it within DATE .","The compensation shall be awarded by the Minister of ORG from the ORG account if the conditions set out in subsection ( CARDINAL ) above are satisfied .","Where compensation is refused , or the amount is considered insufficient , or the Minister of ORG has not replied within DATE of the request , the person concerned may apply to ORG set up in accordance with subsection ( CARDINAL ) below .","In the case of prosecution for CARDINAL of the offences defined in ORG , CARDINAL and CARDINAL of LAW , committed against the person detained , DATE mentioned in the preceding paragraph shall begin to run on DATE when that prosecution is closed by a decision that has become final .","( CARDINAL ) ORG is hereby instituted to hear appeals against decisions taken by the Minister of Justice , or rule on compensation claims where the Minister has not reached a decision in accordance with the conditions set out in subsection ( CARDINAL ) above .","ORG shall be composed of the President of ORG , the President of the PERSON d'Etat and the President of ORG or , where one or more of those persons are prevented from sitting , of the Vice - President of ORG , the Vice - President of the PERSON d'Etat and the Vice - President of ORG .","The duties of secretary to ORG shall be performed by CARDINAL or more members of the registry of ORG appointed by its president .","The rules of procedure of ORG shall be laid down by the ORG .","( CARDINAL ) ORG and claims shall take the form of applications in CARDINAL copies signed by the claimant or his lawyer and lodged with the registry of ORG within DATE of the Minister 's decision or of the expiry of the time within which he should have announced it .","The ORG shall lay down the procedure before ORG sitting in closed session .","ORG shall give its ruling on the opinion expressed at the hearing by ORG attached to ORG , after hearing the submissions of the parties .","ORG decisions shall be delivered at a public sitting . No appeal shall lie against them .","At the parties ' request , an extract from ORG decision shall be published in the ORG belge , but the extract may not mention the amount awarded . The costs of publication shall be borne by the ORG . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-113335","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2012,"docname":"CASE OF TRADE UNION OF THE POLICE IN THE SLOVAK REPUBLIC AND OTHERS v. SLOVAKIA","importance":3,"conclusion":"Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression)","judges":"Alvina Gyulumyan;Egbert Myjer;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Luis L\u00f3pez Guerra;Nona Tsotsoria","text":["GPE of the Police in GPE ( the first applicant ) is registered as a trade union of members of ORG . It is a legal person with its registered office in GPE . The application on its behalf was lodged by Mr PERSON , the trade union \u2019s president . Mr PERSON ( the second applicant ) is a NORP national who was born in DATE and lives in Malacky . At the relevant time he was vice - president of the first applicant association . Mr PERSON ( the third applicant ) is a NORP national who was born in DATE and lives in LOC . He is the first applicant \u2019s vice - president . Mr PERSON ( the fourth applicant ) is a NORP national who was born in DATE and lives in GPE . He is a member of the first applicant association .","On DATE the first applicant , of which CARDINAL policemen were members at that time , organised a public meeting in CARDINAL of the main squares in GPE . Its aim was to protest against envisaged legislative amendments concerning the social security of policemen and their low remuneration . In its course the participants spontaneously shouted , inter alia , that the Government should step down . CARDINAL of the banners displayed by the participants read \u201c If the ORG does n\u2019t pay a policeman , the mafia will do so with pleasure \u201d .","Subsequently the Minister of the ORG criticised the meeting and its organisers . He considered it to be an attempt to involve policemen in politics , in particular because of the slogan calling for the ORG \u2019s resignation , which he considered incompatible with the ethical code of the police .","Apart from the public statements described below , the Minister of the ORG , on DATE , removed PERSON , the president of the first applicant , from the post of director in the police force and assigned him to a different post as an ordinary policeman . At an extra - ordinary general meeting of the police joint health insurance company held on DATE , the third applicant was removed , upon a proposal by the Minister of the ORG , from the company \u2019s supervisory board . The policeman who had carried the above - mentioned banner was summoned by the inspection service of ORG and was asked to explain its content .","The applicants refer to the following public statements by the Minister of the ORG in particular .","In an article published on DATE in the DATE newspaper GPE the Minister of the Interior was quoted as saying that if anyone acted contrary to the ethical code of the police again they \u201c would be dismissed \u201d .","In an interview published in the same newspaper on DATE the Minister stated that he did not challenge the policemen \u2019s right to elect their trade union representatives . He expressed the view that , nevertheless , he was not obliged to negotiate with those representatives as they had lost credibility .","In a TV debate broadcast on DATE the Minister of the ORG stated , among other things :","\u201c PERSON was demoted because he misled ... the public , those policemen whom he had lured out to the square ... PERSON was not demoted because of his opinion , but for having lied . He lied in that he called into question [ the fact ] that the Government had money at their disposal for increasing policemen \u2019s salaries ...","ORG is an armed security force . As such it must remain strictly apolitical . This means in practice , CARDINAL of the ethical code of the police indicates , that when expressing his or her views in public a policeman must act in an impartial and reserved manner , so that there can be no doubt about his or her impartiality . Thus slogans calling for the ORG \u2019s resignation are in complete contradiction to that code ... I am telling you , it will not be possible for excesses like the ones at that meeting to reoccur in the future . This is what I guarantee to you . If a policeman behaves in such a way in the future , he or she will no longer be a policeman . I still proceeded in a particularly moderate manner in this case , where the sanction applied concerned PERSON exclusively . \u201d","On DATE the applicants lodged a complaint with ORG . They alleged a breach of ORG CARDINAL and CARDINAL of the LAW and their constitutional equivalents . The applicants specifically referred to the above - mentioned statements of the Minister of the ORG which had been published in GPE on DATE and DATE and to the statements he had made in context of the TV broadcast of DATE .","NORP In particular , the applicants maintained that the Minister \u2019s statements , when considered in the light of his powers in respect of the police , gave rise to a fear that members of the police force would be sanctioned for availing themselves of their freedoms of expression , assembly and association . There had been no breach of LAW of the police in the context of the public meeting organised by the first applicant . The Minister \u2019s statements had been repressive , as he had indicated that he was not obliged to negotiate with the representatives of the first applicant . Those statements , accompanied by the transfer of the president of the first applicant to a different position , deterred the police from defending their rights through their trade union .","On DATE ORG found that the statements in question had not breached the applicants\u2019 rights .","The judgment stated that the freedom of assembly and association under LAW and LAW CARDINAL extended exclusively to natural persons . The Minister \u2019s statements complained of could not , therefore , amount to a breach of that freedom in respect of the first applicant .","The Constitutional Court considered that , in the context of the meeting held on DATE , the applicants had exercised their right to freedom of expression . At the same time the second , third and fourth applicants had exercised their right to freedom of association with others . They had done so freely and independently of the will of the Minister of the ORG . The Minister \u2019s statements published in the media were to be understood as part of a dialogue between both parties , who had thus been given the opportunity to express their opinions and standpoints .","Admittedly , the Minister \u2019s statements could be characterised as \u201c bold and , from a certain point of view , capable of creating an atmosphere of fear \u201d . However , their nature and intensity were not such as to amount to a breach of the freedoms in issue .","The Constitutional Court further held that the Minister of the ORG had been entitled to express his opinion on the situation within the ministry for which he was politically responsible . His statements represented an immediate reaction to ideas and views expressed at the meeting . Those statements had not interfered with the applicants\u2019 rights in issue . They merely described a situation which might occur under specific circumstances . However , ORG was exclusively entitled to examine complaints of breaches of rights which were based on facts that had actually occurred .","In a separate opinion to the decision on admissibility one of the constitutional judges expressed the view that the ORG complaint should have been rejected for their failure to use the other remedies available , namely , to seek redress by means of an action under LAW DATE .","Article CARDINAL \u00a7 CARDINAL guarantees to everyone freedom of expression and the right to information . They can be restricted by law where it is necessary in a NORP society for the protection of rights and freedoms of others , the security of the ORG , public order or protection of health and morals ( paragraph CARDINAL of Article CARDINAL ) .","Article CARDINAL \u00a7 CARDINAL provides that everybody has the right to free association with others for the protection of his or her economic and social interests . Paragraph CARDINAL of Article CARDINAL allows for restriction by law of the activities of trade unions and other associations where such measure is indispensable in a NORP society for the protection of ORG security , public order or the rights and freedoms of other persons .","Article CARDINAL provides that the Government is the supreme body of the executive branch of power . Under LAW , a member of the Government is responsible for the exercise of his or her function to ORG .","Section CARDINAL provides that ORG is the central ORG administration authority in charge of , inter alia , protection of the constitutional institutions , public order , security of persons and property and of ORG .","Pursuant to section CARDINAL(CARDINAL ) , ORG fulfils duties in matters related to internal order , security and the fight against crime as well as duties resulting from the international obligations of GPE . Its activity is controlled by ORG ( section CARDINAL(CARDINAL ) ) .","Section CARDINAL ) provides that ORG is subordinated to the Minister of the Interior .","Law no . CARDINAL\/CARDINAL governs , inter alia , service in ORG of GPE . Section CARDINAL(CARDINAL ) entitles the Minister of the ORG to transfer a policeman from the position of a superior to a different position where it is in the significant interest of the service . The reasons for such a transfer need not be indicated .","Pursuant to section CARDINAL ) , trade unions ensure the protection of the rights and justified interests of policemen in accordance with the law .","Section CARDINAL ) prohibits the dismissal of a policeman on account of his or her acting as an elected trade union representative .","Section CARDINAL provides for co - operation between high - ranking police officers and trade unions . It includes providing information on the use of salary mass , respect for just remuneration , information on staff - related measures and provision of material and technical equipment free of charge to trade unions .","Section CARDINAL provides for collective bargaining and collective agreements between the trade union bodies and police authorities concerned with a view to protecting the justified interests and needs of the members of the police corps .","Article CARDINAL of LAW of Members of ORG states that , when expressing their views in public , policemen should act in an impartial and reserved manner so that they do not give rise to doubts about their impartiality .","The relevant provisions of the ILO Convention No . DATE on ORG ( adopted in DATE and in force in respect of GPE since DATE ) provide as follows :","CARDINAL.(CARDINAL ) Workers\u2019 and ORG organisations shall have the right to draw up their constitutions and rules , to elect their representatives in full freedom , to organise their administration and activities and to formulate their programmes .","CARDINAL.(CARDINAL ) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof .","CARDINAL.(CARDINAL ) The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations . \u201d","The ILO Convention No . CARDINAL Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively has been in force in respect of GPE since DATE . The relevant provisions read as follows :","Workers shall enjoy adequate protection against acts of anti - union discrimination in respect of their employment .","Such protection shall apply more particularly in respect of acts calculated to- ( ... )","( b ) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside TIME or , with the consent of the employer , within TIME . ( ... )","The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations . \u201d ( ... )","Resolution CARDINAL ( DATE ) of ORG of ORG includes the Declaration on the Police . Point CARDINAL of part B of that declaration provides that membership of a police professional organisation and playing an active part therein shall not be detrimental to any police officer .","Recommendation of ORG to member GPE on LAW ( DATE ) CARDINAL ) was adopted on DATE . Part D concerns the rights of police personnel . Its relevant parts read as follows :","\u201c CARDINAL . Police personnel shall be subject to the same legislation as ordinary citizens , and exceptions may only be justified for reasons of the proper performance of police work in a democratic society . ( ... )","The police shall be organised with a view to earning public respect as professional upholders of the law and providers of services to the public . ( ... )","Police staff shall as a rule enjoy the same civil and political rights as other citizens . Restrictions to these rights may only be made when they are necessary for the exercise of the functions of the police in a democratic society , in accordance with the law , and in conformity with LAW .","Police staff shall enjoy social and economic rights , as public servants , to the fullest extent possible . In particular , staff shall have the right to organise or to participate in representative organisations , to receive an appropriate remuneration and social security , ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["11"],"non_violated_paragraphs":["11-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106262","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2011,"docname":"KNAGGS AND KHACHIK v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Lech Garlicki;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicants , Mr PERSON ( \u201c the first applicant \u201d ) and Mr Ramzy Khachik ( \u201c the second applicant \u201d ) , are NORP nationals who were born in DATE and DATE respectively and are currently being detained in ORG , GPE . They were represented before the ORG by PERSON , a solicitor practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","On DATE an officer in ORG applied to conduct directed surveillance ( i.e. observation of an individual in public ) of the first applicant , PERSON , and his criminal associates . The application was part of an ongoing investigation into the criminal activities of the first applicant . The application was authorised and directed surveillance commenced , with DATE reviews .","In a review of the directed surveillance of DATE , it was noted that surveillance was progressing highly successfully and beneficially in expanding the intelligence base and developing knowledge of Mr Knaggs\u2019 operation .","On DATE an officer in ORG ordered a feasibility study into the possibility of placing a probe ( i.e. a listening device ) in a ORG Shogun vehicle which Mr GPE allegedly owned . The purported purpose of the probe was to record conversations of face - to - face meetings in the vehicle .","On DATE a ORG officer applied for authorisation for intrusive surveillance ( i.e. observation of an individual in private or by means of a surveillance device ) under LAW DATE and the Regulation of Investigatory Powers Act CARDINAL ( \u201c RIPA \u201d ) ( see paragraphs CARDINAL - CARDINAL below ) , in order to place the probe in the vehicle . The application included details of what was being sought and how the proposed action was proportionate to what it sought to achieve . It stated :","\u201c Observations have corroborated PERSON carrying criminal associates as passengers , and it is believed that he discusses his drugs business with them whilst travelling in the PERSON . \u201d","The application was authorised by the Director General on DATE . The probe was installed on or around DATE .","DATE and DATE , the probe was operated and the conversations in the car recorded . On DATE , a review of the intrusive surveillance was conducted . The review document noted that CARDINAL mobile telephone calls had been made or received while Mr GPE was in the vehicle and that CARDINAL meetings had taken place .","On DATE the applicants were arrested and subsequently charged with conspiracy to supply a Class A drug . Legal proceedings were commenced in ORG . PERSON did not lodge any defence statement setting out the nature and scope of his defence .","In the course of disclosure , the prosecution provided CD copies of the probe tapes to the applicants . As Mr PERSON had regularly used his mobile telephone while in his car , the probe tapes contained for the most part CARDINAL - sided mobile telephone conversations . Mr GPE sought the advice of a technical expert .","In a preliminary report dated DATE instructed by Mr GPE , Mr PERSON , a technical and telecommunications consultant , commented on the probe material . He explained that he had had time to examine CARDINAL of the CARDINAL audio CDs produced in the case . He noted at the outset that he was strongly of the view that the placing of the probe in the vehicle was done knowingly to defeat the prohibition contained in LAW ( \u201c RIPA \u201d \u2013 see paragraphs CARDINAL - CARDINAL below ) on the use of telecommunications information in evidence . He further noted that the recordings appeared to contain extraneous signals which suggested that an interception of communications had taken place , although he accepted that an innocuous explanation for the extraneous signals might exist . He continued :","\u201c If there is to be a dispute , the ORG will in my view have no alternative but to enquire into details of the technical systems use[d ] to monitor conversations in the vehicle to relay the information to the listening office , and the methods of recordings and operations in use at the listening centre . \u201d","The report explained that , according to the police , the probe had relayed the sounds it captured immediately to a secure listening office , where teams of CARDINAL officers had supervised the creation of CARDINAL simultaneous copy ORG ( \u201c DAT tapes \u201d ) recording the signal from the probe . The decision to supply the defence with CD copies of the DAT tapes posed problems for forensic analysis , as the authentic time coding embedded in the original recordings was lost . Further , the use of a recording method which created \u201c markers \u201d to show when CARDINAL audio recording stopped and another started had sometimes been used , which also prevented checking the audio material against transcripts and billing records .","Mr PERSON noted CARDINAL major extraneous signals in the CARDINAL CDs he had examined . CARDINAL was where the audio signal to the probe had been lost but it was possible to hear a sound which resembled the dialling of a phone . The report continued :","\u201c The enigma thus created is how the recording machinery ... is able to capture signals from the phone other than via the listening device . The best - fitting explanation on the data so far examined is that during the quiet periods ( when the connection to the listening device had been lost ) , the DAT machine records ( at a lower level ) signals from a separate interception system which is inadvertently feeding into the recording system for the Shogun . \u201d","Another extraneous signal was observed where the signal had been lost but words apparently spoken by Mr GPE were picked up . Mr ORG suggested CARDINAL possible explanations : first , that the police officers had dishonestly tampered with the evidence of the sound recordings but left traces of their conduct ; second , that the conversations were not only being monitored by the probe but were at the same time being intercepted under a ORG warrant , resulting in \u201c spillage of signals \u201d due to proximate equipment . He considered the second possibility to have \u201c much more profound implications \u201d .","Mr PERSON \u2019s report then went on to consider a possible explanation for the events which had been observed . He advanced the view that given the nature of the investigation and the views of the police regarding Mr GPE , an interception of his communications would have been warranted . He continued :","\u201c I speculate that this was done , and that officers heard a pattern of calls develop not unlike those in evidence . From this monitoring , they would realise that calls of the type they regarded as suspicious were often made by GPE when sitting in his vehicles ...","From the police perspective in this situation , the core problem was that ( as alleged in the case ) PERSON was a shrewd operator who did not put himself in possession of drugs or incriminating materials . Yet they knew that calls took place of a type they regarded as highly incriminating . Their problem was that in order to prosecute GPE , they would need evidence to take into court , and the ORG interceptions could not be used ... \u201d","In the section of his report named \u201c Context and conclusion \u201d , Mr ORG noted :","\u201c If my observations and reasoning in due course prove correct , then PERSON is correct in claiming that the sole purpose of planting the listening device was to enable the police to evade the restrictions placed in ORG and get interception evidence into ORG . That goes to the heart of the issue of admissibility .","The possible inadvertent co - presence of evidence of ORG interception material in the case is a remarkable echo of the first case in this field , ORG [ v. GPE , DATE , Series A no . CARDINAL ] ... I wonder if history is now repeating itself in digital form . \u201d","NORP In his second report dated DATE , Mr ORG again set out his hypothesis that at the same time as signals from the probe were being recorded , signals direct from Mr Knaggs\u2019 mobile phone were being intercepted by the police under an interception warrant . He continued :","\u201c If this is correct it follows that the covert recording device was not necessary for the police to gain intelligence on his activities , as better quality intelligence was being obtained from the intercept or intercepts on Knaggs\u2019 phone(s ) ... \u201d","The report considered the application for authorisation to carry out intrusive surveillance , which it considered was :","\u201c ... misleading at best , insofar as it did not state that the true purpose of the application was to obtain evidence known to be available from intercepted phone calls , but inadmissible because of RIPA ... \u201d","It also noted the first applicant \u2019s instructions that , at the time the application for intrusive surveillance was made , he had never even used the FAC and that the statement that he used it to meet with criminal associates ( see paragraph CARDINAL above ) was false .","Reference was made to the presence of voices which were not recorded on the written transcripts of the DAT tapes but which could be heard on the tapes by the introduction of amplification . These incidents occurred during periods in which the transcripts indicated that the signal to the probe had been lost . He considered that the voice \u201c crosstalk \u201d appeared to be coming from another system which was directly intercepting all the communications from Mr Knaggs\u2019 phone .","The applicants subsequently sought confirmation from the prosecution of whether or not there had been an intercept of Mr Knaggs\u2019 telephone communications and , if so , the dates on which the intercept had been in place . Defence counsel explained that the reason for the request was that , if there was an intercept , they would have grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers requesting the probe . The prosecution were unable to provide the confirmation sought by the applicants because section CARDINAL of RIPA appeared to preclude the asking of any question and the disclosure of any information relating to whether or not there had been an intercept . Section CARDINAL allowed limited disclosure of the content of an intercept in certain circumstances and where such disclosure could be made without breaching the section CARDINAL prohibition . Section CARDINAL(CARDINAL)(b ) clarified that nothing in section CARDINAL prohibited disclosure of information to a relevant judge in a case where the judge has ordered disclosure to be made to him alone .","NORP In DATE , the applicants applied for a ruling from ORG as to the operation of sections CARDINAL and CARDINAL RIPA in respect of their request for confirmation as to the existence and duration of any intercept of communications . Submissions were made to the court by counsel for PERSON GPE and by counsel for PERSON .","The transcript of the proceedings before the court on DATE records , inter alia , the following :","\u201c Mr ORG [ counsel for Mr GPE ] : ... whilst , perhaps regrettably , LAW [ RIPA ] does not provide for judicial involvement as of necessity , it does make involvement possible at your Honour \u2019s discretion , subject to your Honour being satisfied there are exceptional circumstances .","...","The exceptional circumstances ... would be that there is material in the hands of the ORG which does suggest , and strongly suggests , that intelligence of some sort existed \u2013 and I will put it in neutral terms , for obvious reasons \u2013 which , if it existed , is potentially highly relevant to matters both on the voir dire and on the trial of the sort that I have set out in the course of my skeleton argument . \u201d","The transcript also notes the following discussion :","\u201c Mr PERSON : ... If your Honour is empowered actually to order the disclosure of material to you , certainly implicit in that is power to make enquiries to determine whether or not that is necessary .","Judge PERSON : But you originally , in your skeleton , were not seeking anything to do with the material .","Mr Ryder : No .","Judge PERSON : Just the fact of whether or not there was an intercept .","Mr PERSON : That is right . That is really what I am interested in . \u201d","Subsequently , the following exchange took place :","\u201c Judge PERSON : ... as I understand it , you are inviting me to effectively convene the ORG on what would be a [ public interest immunity ] hearing .","Mr PERSON : Yes .","Judge PERSON : And ask them to disclose anything that there is \u2013 if there is anything \u2013 about an intercept .","Mr PERSON : To your Honour .","...","... If there is something and it is revealed to your Honour , we are then in this position : we will conduct the voir dire along the line that I have indicated in previous skeleton arguments and in the current one . We will not know what your Honour knows , but your Honour will have in mind what your Honour has learned , in determining whether or not the answers given by a given officer , for example , are honest or not , whether or not there was intelligence which informed what they were doing which rendered the necessity for the intrusive surveillance less urgent than they said , things of that sort ... \u201d","Counsel for PERSON asked the court , if the prosecution were asked to confirm whether there was an intercept , to bear in mind whether the authorities had complied with the relevant safeguards in the legislation .","Later , counsel for the prosecution made the following statement :","\u201c The first thing I should say is that , in carrying out my duties , I have had regard to everything I know , the points the Defence wish to make and to the Defence cases as they have been set out in interview and sometimes in argument . If I may , for example , use the matter put forward by PERSON , on behalf of PERSON , I am well aware of the nature of the Prosecution case and the importance of seeking out any material that may further a suggestion that PERSON was not in fact the person at the other end of the telephone , or that he was having an innocent conversation . I have obviously borne that in mind ... throughout when considering any matter of disclosure .","...","... [ I]f there were no intercept in this case , it seems very difficult to see how an admission could be drafted that did not reveal that fact that could be relevant to these proceedings . \u201d","No mention was made in the oral submissions of counsel for either applicant , or by counsel for any of the other defendants in the case , of any concerns regarding , or potential challenge to , the integrity , authenticity or reliability of the probe material .","Handing down his ruling DATE , with reasons to follow , Judge PERSON said :","\u201c I am obviously conscious of my duty to ensure that these proceedings are conducted fairly . I have noted on CARDINAL occasion the concerns expressed by the defence in relation to disclosure and I have taken time to consider the submissions TIME against the background of the relevant statutes , authorities and skeletons which I considered before DATE .","I am happy to confess that I find this a very difficult area . In the end result I have decided not to exercise my power under section CARDINAL(CARDINAL)(b ) . \u201d","On DATE , Judge PERSON gave full reasons for his decision . He noted at the outset :","\u201c The evidence upon which the ORG relies comes from several different sources . There is evidence from observations by ORG , and overheard conversations . There is evidence from a co - defendant , [ W. ] , who has pleaded guilty and awaits sentence . He has implicated a number of Defendants in a material way . There is evidence of the recovery of drugs and associated drugs apparatus as well as money . In addition , the ORG have material upon which they can draw from the interviews of some of the Defendants ...","A fairly large portion of the evidence , however , relied upon by the ORG , is the result of a probe which was attached to Mr Knaggs\u2019 vehicle , and from which many hours of meetings and telephone conversations with alleged co - conspirators and others were taped and later transcribed . That evidence is potentially very incriminating , and the subject of a hotly contested voir dire as to its admissibility . \u201d","Summarising the defence objections to the evidence , the judge noted :","\u201c The Defence wish , among other things , to test the lawfulness of the applications made , and the authorities given . There may also be an issue of bad faith on the part of ORG ... \u201d","He continued :","\u201c In his second skeleton of DATE ... Mr PERSON suggested that material existed which suggested that an interception had taken place . Understandably , we do not know what that material is . We do not know whether it emanates from his expert , or his instructions from his lay client , or a mixture of both . If this is the case , he says the fact of \u2013 though not the content of \u2013 such intercepts is directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance . He went on to say that assertions and implications in the application for authorisation to conduct intrusive surveillance , that it was not feasible to gather evidence by conventional methods of surveillance , are untenable if such conventional surveillance was informed by information as to Mr Knaggs\u2019 movements and activities gathered by way of telephone interception . It is this matter which has loomed large , and given rise to some difficult questions concerning the construction , interpretation and operation of Sections CARDINAL and CARDINAL of the CARDINAL Act . \u201d","Considering the effect of section CARDINAL RIPA , the judge noted that :","\u201c It can thus be seen that subject to LAW there is no ambiguity about Section CARDINAL . Its terms and intention are crystal clear . There is a strict prohibition , a complete blanket comes down on anything at all which would reveal whether there was , or was not , an intercept , or even the possibility that there was , or might have been an intercept , or , indeed , application for an intercept . On its face that would completely rule out any disclosure of the kind originally asked for by the Defence in their skeleton . That was why the Crown ... had concerns about the very legality of what the Defence , through their expert , was doing . Concerns shared by the ORG ...","The effect of the Rule ... is that interceptive material can not be used either by the Prosecution or the Defence , thus preserving the equality of arms principle enshrined in LAW ... \u201d","He continued :","\u201c [ Mr ORG ] said that the exceptional circumstances was that there is material in the hands of the defence which , as I have said , the ORG does not know the nature of , which strongly suggests that , to put it bluntly , though he was more circumspect , an intercept had been in place , and the relevance that had to the voir dire , as I have indicated already , and as he set out in his first skeleton , was obvious . \u201d","As to the conduct of the prosecution in ensuring fairness in the proceedings , the judge noted :","\u201c ... PERSON [ counsel for the prosecution ] indicated that he had had regard to all he was aware of from the NORP point of view , which had arisen in interview , or in argument . In particular he highlighted and answered PERSON point [ on behalf of PERSON ] about the CARDINAL - sided conversations ... He indicated that were he in possession of information , from whatever source , to exclude , exculpate or explain Mr PERSON \u2019s part in CARDINAL - sided conversations he would , consistent with his duty , have made an admission , and not have advanced a case to the Jury which he had any reason to think was false . \u201d","Judge PERSON reviewed the provisions of ORG and the power of the judge under section CARDINAL to review any evidence . He found :","\u201c ... it seems to me that the whole tenor of these provisions is directed to the material arising out of an interception . It has been made clear in this case that the Defence have absolutely no interest in any such material , even if there is any . Their interest is as to whether there was or was not an intercept . \u201d","As to the correct interpretation of section NORP ) , he said :","\u201c I am of the view that any information [ in section NORP ) ] relates to the material arising out of the intercept . I suppose it may reasonably be argued that any information surfacing as a result of something said or done in turn arising out of the intercept material , which was also in [ the ] possession of the authorities , might be included , but it goes no further than that . The important point , however , is that none of this has any relevance because , as I have said , it is not what the Defence are after to help their testing of the evidence or arguments on the voir dire .","I am satisfied , therefore , that any information in sub - section CARDINAL can not be widened and interpreted to mean whether , for example , there was or was not an intercept , or any application for one . It can not do so because release of that information is strictly prohibited . \u201d","Summarising counsel for Mr Knaggs\u2019 suggested approach ( see paragraph CARDINAL above ) , the judge continued :","\u201c I find a number of difficulties with these points . First , it can not be gainsaid but that as Mr ORG has conceded on CARDINAL occasion the Defence are not remotely interested in any material emanating from the intercept , but with whether there was one . That is the whole thrust of his argument . \u201d","He concluded :","\u201c However , even if I am wrong about the various matters I have just rehearsed , I am of the opinion that whilst the point has some importance on the voir dire , it is not so important as to amount to exceptional circumstances whereby disclosure is essential and required in the interests of justice . It is but CARDINAL aspect of the voir dire . In addition , there is nothing particularly exceptional about this situation . It is likely to occur quite frequently where the authorities believe that they are CARDINAL the path of serious crime and where authority has been granted for intrusive surveillance , but there may well be an intercept lurking in the background . \u201d","The applicants subsequently applied for the proceedings to be stayed as an abuse of process or for the probe evidence to be excluded on the grounds of unfairness under section CARDINAL of ORG \u201c PACE \u201d \u2013 see paragraph CARDINAL below ) . Judge PERSON summarised the thrust of the defence submissions as follows :","\u201c ... They say that the dishonest intention of ORG from the start was to get inside Knaggs\u2019 vehicle and record what he said on his mobile phone . They well knew that he used it extensively ... The reality was that their sole purpose was to hear those conversations . The Police knew that the rules forbade intrusive surveillance of this type ( if that was the object ) . Equally , they knew that any material arising out of an interception by virtue of a warrant under Sec.CARDINAL [ RIPA ] ( the only other way of hearing calls ) could not be used in evidence .","In order to get round that prohibition , and to enable the evidence to be used , they quite deliberately and deceitfully , and in bad faith , contrived to construct an application in such a way as to pull the wool over the eyes of their senior officers ... so as to gain lawful authorisation and , for that matter , renewal of that authorisation .","They did DATE say the Defence \u2013 by a mixture of false , misleading and disingenuous statements and exaggeration of the position both on the original application and the review document ... \u201d","According to the defence , the whole process illustrated bad faith and thus the initial authorisation for the probe as well as the continuing authorisation following the review were unlawfully obtained . They pointed to a secret instruction given to police officers not to record their observations of the movements of Mr GPE . They contended that the integrity of the whole investigative process had been compromised by police misconduct and that no fair trial could take place if the police were found to have behaved in the way they alleged . Accordingly , they argued the indictment should be stayed . Alternatively , the probe evidence should be excluded because of the gross bad faith and dishonesty of the police in obtaining it and because its admission would have , in the circumstances , such an adverse effect of the fairness of the proceedings that the court ought not to admit it .","The court began hearing evidence on the voir dire on DATE . Further disclosure of material which the defence said went generally to the accuracy of the material contained in the applications for authorisation of the probe and to the credibility of the police officers involved in the probe application was ordered by Judge PERSON on DATE .","By letter dated DATE Mr PERSON informed Mr Knaggs\u2019 counsel that having conducted further analysis , he believed that the itemised telephone billing records produced by the prosecution were inadmissible or unreliable and unfair . A comparison of the police communications data and commercial communications data showed that MONEY of the records were different in CARDINAL data element . In his view this showed that the CARDINAL sets of records originated from different sources .","Evidence was heard on the voir dire from police officers involved in the surveillance operation and the Director General of ORG , who had authorised the use of intrusive surveillance . On cross - examination by counsel for PERSON , the police officer who made the application denied lying when he asserted that meetings with criminal associates were taking place in the vehicle . He agreed that the police were aware that PERSON used his mobile phone regularly , but not necessarily that he used it extensively before the probe was fitted . He rejected the suggestion that directed surveillance could have been highly successful in respect of PERSON , emphasising that directed surveillance did not provide the police with evidence against Mr GPE sufficient to secure a conviction . He was unable to explain why a decision was taken not to record Mr Knaggs\u2019 movements .","The senior investigating officer explained that he had been concerned about the number of CARDINAL - sided conversations recorded during the deployment of the probe . However , recording CARDINAL - sided calls had not been the sole purpose of the probe and in any event , the police were obtaining evidence and could therefore legitimately continue to use the probe notwithstanding the fact that the majority of the product was CARDINAL - sided conversations .","NORP The Director General emphasised that his authorisation of intrusive surveillance was not a rubber - stamping exercise . He dealt with the matter personally and exercised independent judgment . While he could not check every detail of the process and had to take certain matters on trust , he was assisted by members of staff who carried out checks and provided legal advice when required . He required a presentation by the requesting officer in an application of a particularly sensitive nature and also conducted random checks . He explained that the recording of CARDINAL - sided calls occurred in many cases . If it were the only material being obtained from intrusive surveillance there would be cause for concern , but that was not the case in respect of the probe in Mr Knaggs\u2019 car . He was satisfied that the relevant criteria had been met when he authorised the initial probe and the renewal . He had no cause to question the good faith of the officers making the application .","It was put to the officer who prepared the review document that , contrary to what he had indicated ( see paragraph CARDINAL above ) , CARDINAL telephone calls and either CARDINAL or CARDINAL meetings had taken place in the vehicle DATE . The officer explained that his figures were based on transcripts available at the time . Following an adjournment to allow him to investigate , he said that on his calculations there were CARDINAL calls and CARDINAL meetings between the relevant dates . The figures in the review had been based on the period from DATE , for an operational reason that he was unable to disclose . He denied that he had made up the explanation to cover up the inaccurate figures .","Judge PERSON summarised counsel for Mr Knaggs\u2019 closing submissions to the court as follows :","\u201c Mr PERSON was characteristically trenchant in his criticism of the evidence of ORG . He conceded that there can be no question of error or mistake . He nailed his colours firmly to the mast , of dishonesty and deceit . ORG well understood the legal requirements and had cynically manipulated the applications to deceive the Director General , and so achieve their sole objective , which was to record what PERSON said on his mobile , and thus get round the problems they knew a warrant under ORG would create for them . He submitted that , even if the Prosecution evidence was accepted , the Crown had not come close to establishing that the probe was necessary and the exercise essential . \u201d","Counsel for PERSON submissions were summarised as follows :","\u201c Mr PERSON submitted that the key question was whether the application [ for the probe ] was necessary ... The Crown and the ORG had been very seriously misled by ORG , who had abused the system . The only thing which changed in the lead - up to DATE was Knaggs\u2019 acquisition of a new car . \u201d","DATE . On DATE Judge PERSON refused the defence applications . He noted :","\u201c In coming to my findings on the facts , I have also taken into account the following matters :","it is for the ORG to satisfy me , so that I am sure , that the criteria under [ RIPA ] were met at both the initial stage and for review purposes .","since allegations of bad faith are raised by the ORG , the ORG must , on all the material , completely rule out any question of dishonesty or bad faith .","all the evidence called on the voir dire and , in particular , the assessment of the honesty and reliability of those officers whose credibility is so seriously questioned .","the discrepancies and inconsistencies in the evidence , where they occur .","the skeletons and strong arguments forwarded by the Defence .","the oft repeated concerns of the Defence at the lack of disclosure as a result of ORG and the constraints , out of necessity , which that has imposed on their questioning and probing of the witnesses , as well as their concerns often expressed of the lack of candour in relation to disclosure .","...","the great care I must exercise in my mind about that which I know and which the Defence do not in connection with the decision - making process .","...","applications of this kind are a substantial interference with privacy , and should only succeed where there are DATE and I am summarising the effect of the legislation \u2013 compelling reasons for doing so .","... \u201d","He considered that the only way to deal with the defence handicap on the sensitive material which had not been disclosed to the defence was to say that the defence were \u201c entitled to have it both ways \u201d , namely that they could expect the court to act on anything it knew that helped them but not to act on anything that helped the prosecution .","He addressed first the question whether the intrusive surveillance of PERSON was necessary and , in particular , whether the information sought could reasonably be obtained by other means . He referred to the police \u2019s belief that PERSON was familiar with police surveillance techniques , citing several examples which appeared to provide some support for this belief . He also noted that the police believed that they were dealing with a major criminal , and had to plan and proceed accordingly . He therefore accepted what was said in the probe application form in this regard , which was borne out by the comments made by PERSON in the recordings . He considered this to be the :","\u201c first and important point on the road to necessity , as well as proportionality . \u201d","Next , Judge PERSON considered the defence arguments concerning the effectiveness of directed surveillance . He noted :","\u201c ... Directed surveillance was feasible and useful when employed to observe other members of the conspiracy , but , for reasons I have already given , difficult and often impossible in the case of GPE . Its effectiveness was limited with regard to him , for example , because he did not handle drugs . The prospect of catching him with drugs was effectively nil . \u201d","He continued :","\u201c The Police needed to collect hard evidence to convict him . As they candidly said in their application , it was necessary for them to collect such evidence , as opposed to information . The CARDINAL things are quite different . \u201d","He further noted that directed and intrusive surveillance were tools of investigation , both of which were more effective when carried out in tandem with the other . He observed :","\u201c ... Directed surveillance may have been working within its own terms , but it is difficult to see how the substantial drugs seizures could have been made if the Police had not known what was going to happen . To know what was going to happen , they had to listen to conversations in the car . In this connection , one should bear in mind that , not only were they under an obligation to detect serious crime , but also to prevent it . They needed a means of predicting or tracing the travels of conspirators , and hence the shipment of drugs . \u201d","As to the issues raised by the defence concerning the absence of observation material , Judge PERSON considered that there was no doubt that the attitude and behaviour of the senior investigating officer in instructing that no record be kept was open to severe censure and was a clear breach of the applicable code of practice ( see paragraph CARDINAL below ) . However , he was satisfied that there was no conspiracy or dishonesty among police officers on the question .","Regarding the intention of the police when making the application for the probe , Judge PERSON accepted that the police were aware that PERSON GPE used his mobile phone a great deal . However , he considered that there was a reasonable expectation by the police that Mr GPE would hold meetings with fellow criminals in his car and there was a legitimate wish to obtain evidence of what was said during those meetings . In that sense , he considered the overhearing of CARDINAL - sided calls to be incidental or subordinate to the purpose for which the authorisation was sought . The fact that in the event very useful telephone evidence was obtained did not affect the validity of the decision to apply for authorisation , to grant it , or to permit it to continue . The key factor was the purpose of the probe and not the result . In this regard he emphasised that the probe could not be \u201c de - authorised \u201d retrospectively simply because something unexpected happened . He was therefore satisfied that the police intention was to monitor meetings and not to use the probe to circumvent the prohibition on using interception material in evidence .","Similarly , while certain aspects of the review documents were completed carelessly , the judge was satisfied that the police officers were telling the truth on the voir dire and that there was no dishonesty . He continued :","\u201c ... This was an ongoing operation , and a very serious one at that . The fact is that , whilst there were a large number of calls , the meetings had continued , and , thus , justification for the authority still stood . \u201d","Applying the ORG criteria , the judge had no doubt that the criteria relevant to the authorisation of intrusive surveillance , set out in section QUANTITY ( see paragraph CARDINAL below ) , were fully satisfied . Accordingly , the authorisations were perfectly valid .","In setting out his conclusions on the abuse of process and section CARDINAL PACE applications , the judge summarised the matters which in his view affected the question of the fairness of admitting the evidence :","\u201c CARDINAL . There is a clear , and substantially unchallenged , record of what was said in Knaggs\u2019 car . Very often tapes can be difficult to understand , and unfairness can result from conflicting interpretations of material which is unclear . That is singularly not the case here .","There is no element of entrapment . What PERSON said is said quite voluntarily and quite uninfluenced by any Police Officer .","He made no comment to the Police when these matters were put to him , which , of course , he was perfectly entitled to do . However , he and the other Defendants who may be tied into the other ends of telephone conversations by mobile phone evidence and observations are particularly able to say what was being discussed .","Each Defendant alleged to be involved in a conversation can , if he wishes , deny that he was on the other end of that conversation , or assert what was being said was being taken out of context , or otherwise put innocent explanation , or some explanation , upon them .","All the tapes \u2013 not just those relied upon by DATE have been disclosed . Any Defendant can , therefore , put before the jury any passages upon which he relies , in order , for example , to show what the Prosecution allege has been taken out of context , or otherwise explain them .","Whilst the Prosecution case DATE which is , of course , charged as a conspiracy \u2013 places a good deal of reliance upon this material , it is not the sole evidence in the case . It should be noted , however , that the taped evidence is strong evidence in its own right ...","The admitted breaches of the codes of practice and admitted conduct of ORG which had been the subject of censure \u2013 apart from the issue of bad faith \u2013 should be put in its proper context , and the question asked : taking both matters at their highest , what effect did they have , or would they have , on the fairness of a trial ? \u201d","He concluded :","\u201c None of the criticisms made , it seems to me , go anywhere near an attack on the reliability or probative value or cogency of the evidence in question . Nor is there any suggestion of the manipulation of the tape recording exercise , as sometimes does arise . \u201d","In a note for counsel for Mr GPE dated DATE Mr ORG explained the results of further analysis of the billing information , highlighting inconsistencies in the information obtained from the prosecution compared to information obtained from the service provider . CARDINAL inconsistency raised was the presence in the prosecution list of calls of \u201c CARDINAL - length \u201d calls , where no connection was made . Evidence from the provider indicated that such calls were not included in the billing records they issued and their presence in the prosecution data therefore raised questions as to the source .","By letter to counsel dated DATE Mr PERSON drew attention to new evidence received as to police procedures on obtaining telephone record data which had shed some light on the inconsistencies observed . In particular , the method available to the police for automatically obtaining phone records generated call data in a different format to the formal inquiry system in which the provider issued data . The automated system for certain mobile phone operators did include CARDINAL - length calls in the output . The different methods of generating the data also helped explain inconsistencies regarding the duration of calls : the precise duration given in the automated records was rounded up in the billing records produced by the formal inquiry method .","On DATE , following legal advice that as a result of the sections CARDINAL ruling he could not challenge the prosecution \u2019s evidence by calling his expert evidence , Mr GPE pleaded guilty to the charge of conspiracy to supply a Class A drug .","On DATE , PERSON appeared before the judge . In relation to his plea , he said :","\u201c As you know , on DATE , I entered a plea of guilty of conspiracy to supply Class \u2018 DATE drugs . I was well aware of the consequences and I was well aware that , in pleading guilty to such a charge , I am going to receive a quite substantial custodial sentence . I did plead guilty after consulting with my family , and I did it off my own back ; I was n\u2019t pressured by my legal team in any way , but I was very carefully advised . \u201d","However , he expressed concern at the circumstances in which he was pleading guilty :","\u201c My issues , your Honour , with that plea of guilty was that I felt that I was put in a no - win situation in relation to that plea of guilty . I feel that you know , with all due respect your honour , I feel that my chances of a fair trial were rendered absolutely impossible , and if I may say , I would like to briefly go into the reasons why I believe that .","The first thing is , we , the defence , \u2013 I should say I , [ the ] defence \u2013 had strong forensic evidence to show that an interception of telephone communications took place ... \u201d","Judge PERSON prevented him from going further , saying :","\u201c I am going to stop you there , because this is a matter , as you know , upon which I have ruled ... It is not open to you to ventilate this matter in open court . And so , if you have been advised to keep counsel about these matters , I advise you to do so . I am not prepared to hear any representations in relation to that matter . \u201d","Mr GPE also said :","\u201c ... I would also like to say , your Honour , that I \u2019m not trying to stand here and portray myself as being some sort of an angel ; I have pleaded guilty , and I was involved in crime , but I certainly was n\u2019t involved to the extent that the Prosecution are trying to say that was . And , like I say , your Honour , I was never able to prove that . And for my involvement in that crime , I am truly sorry . And if I could turn back the clock , I can guarantee that I would not be here DATE . \u201d","DATE . On DATE Mr GPE was sentenced to DATE imprisonment . Confiscation proceedings were subsequently commenced against him .","In DATE Mr PERSON made a formal application to vacate his guilty plea , which he abandoned after a CARDINAL day hearing . He renewed his application formally on DATE , at which stage it was refused by the judge .","On DATE Mr PERSON was convicted by a jury of conspiracy to supply a Class A controlled drug . The information obtained from the probe in Mr Knaggs\u2019 car provided significant evidence against Mr PERSON . At trial , he did not seek to dispute the authenticity or reliability of the probe material . Instead , he sought to give an innocent explanation for the recordings in which he was implicated .","On DATE PERSON was sentenced to DATE imprisonment . Confiscation proceedings were subsequently commenced against him .","Mr PERSON sought leave to appeal . On DATE his application for leave to appeal was refused by the single judge .","In DATE Mr ORG produced a further technical report to assist an intended appeal by PERSON . The report began with a summary of the position set out in previous reports , again advancing the hypothesis that the probe had been placed in the vehicle intentionally to collect evidence of calls being made by PERSON on his mobile phone . The report noted :","\u201c CARDINAL . The circumstances of that application and the many misleading statements made by the NCS in obtaining and then continuing permission for intrusive surveillance , were explored extensively in a voir dire , and are set out in detail in the judgment ... \u201d","It continued :","\u201c CARDINAL . From the beginning , my view was that the placing of the probe in the PERSON was done intentionally to intercept telephone calls made by GPE \u2013 knowing when making the application that GPE conducted many mobile phone conversations from his ( previous ) vehicle , and that some of his conversations could be highly incriminating . [ original italics ]","...","ORG are prohibited under sCARDINAL ORG from allowing evidence to be sought or taken concerning the interception of communications . It is not therefore possible to examine how information obtained from the interception of communications might have influenced the making of an application for intrusive surveillance . \u201d","Referring again to the extraneous signals found on the DAT tapes , PERSON concluded that the police recording equipment was inadvertently recording unintended information . CARDINAL possibilities were proposed :","\u201c ( CARDINAL ) The recorders were picking up a separate signal from a direct intercept on Knaggs\u2019 phone which became ( barely ) audible when the direct line to the probe was lost . This is a well - known electrical phenomenon called crosstalk ;","( CARDINAL ) The telephone device used to connect to the probe was inadvertently picking up conversations within the secure listening room . If so , in simple terms the police were inadvertently recording their own conversations . \u201d","DATE . In DATE a report was prepared on behalf of PERSON by Mr B. Clues , a chartered electrical engineer and consultant . Referring to voices on the tapes which did not appear to come from the target vehicle , Mr Clues noted that these appeared to be a contamination of the tapes . In his opinion , there was the possibility that the investigation and analysis of the unexplained recordings could produce evidence of , among other possibilities , tampering and editing of the recordings . He concluded that the material from the CDs which he had examined was not , in his view , consistent with assertions that there were no audio sources on the tapes other than from the probe . He considered that the recordings had characteristics which were consistent with being extracts of the original recordings or , alternatively , an edited version of original recordings .","Having analysed some of the DAT tapes\u2019 contents , he noted that \u201c unusual audio events \u201d occurred when there was a loss of connection with the probe . CARDINAL types of audio source were nonetheless heard on the tapes during the loss of connection , namely voices which appeared to be related to the operation of the probe and voices which appeared to be that of a telephone call between PERSON and another person . Further , when the probe was active , sounds could be heard on the tapes which did not appear to be coming from inside the vehicle . He accepted that there could be an explanation for these unusual audio events , but indicated that detailed audio analysis was required to determine this .","In DATE a report by PERSON , director and senior consultant of ORG , was prepared on the instructions of the prosecution . He noted , first , that all CARDINAL DAT tapes which he analysed contained continuous and uninterrupted recorded information for the respective periods which they covered . He further indicated that he had found CARDINAL sources of information on the DAT tapes : the input from the probe and speech from the handset at the monitoring station . He dismissed a number of Mr NORP conclusions as speculative and\/or mistaken .","In DATE , a further report was instructed by the defence on behalf of PERSON . The report was prepared by PERSON , a consultant specialising in speaker identification and disputed language issues . A similar report was prepared on behalf of the prosecution by PERSON A. ORG , senior lecturer in phonetics at ORG , GPE . Both reports considered the voices on an extract of the tapes and the voice of CARDINAL of the police officers involved in the operation . Both considered it likely that CARDINAL of the voices recorded in the extract was that of the police officer .","Mr GPE also lodged grounds of appeal against conviction , dated DATE , prepared by his solicitor . His grounds of appeal were split into CARDINAL distinct grounds , which in turn were sub - divided into a number of different heads . The grounds noted :","\u201c The applicant even at an appeal can not fully apprise ORG full facts giving rise to the unsafe conviction , because the evidence and associated material demonstrating the unreliability , illegality and subsequently inadmissibility of the ORG \u2019s evidence can not be adduced . In these circumstances there is an overwhelming need for a directions hearing . Directions will be sought as to how Mr GPE could adduce his evidence without falling foul of the statutory prohibition imposed under [ ORG and LAW ] . \u201d","The first ground of appeal was that :","\u201c The Learned Judge erred in not allowing defence submissions to exclude evidence under LAW DATE and\/or stay the proceedings for abuse of the ORG \u2019s process . \u201d","The followings heads were identified within that ground : ( i ) the conduct of the police during the investigation and on the voir dire , namely concealment and dishonesty to justify retrospectively unlawfully obtained material ; ( ii ) the true purpose behind the intrusive surveillance , namely to record the applicant using his mobile phone ; ( iii ) the system used to transmit the product of the recording device and whether in essence it amounted to an interception of communications itself ; ( iv ) the authenticity and integrity of the tape recordings , and the restrictions imposed by statute on disclosing the evidence which emerged during the voir dire ; and ( v ) the authenticity and reliability of the telephone call data , for similar reasons .","In particular , as to the authenticity and integrity of the tape recordings , the grounds of appeal noted :","\u201c ... in respect of the tape recordings there was , and remains , a significant challenge to the authenticity and legality of this material and the integrity of the system employed to record it .","During the Voir Dire evidence was to emerge which would demonstrate that the integrity of the tape recordings could not be guaranteed and the product could not be relied upon . However , due to the restrictions imposed by statute , the reliability and legality of the tapes could not properly be explored , and the expert evidence could not be called and heard in ORG , because to do so would offend the statutory prohibitions set out in [ RIPA ] ... \u201d","The second ground of appeal was that :","\u201c As a result of the judge \u2019s rulings giving rise to ground one , combined with the procedural problems imposed under statute which led to the legal advice that PERSON GPE was prohibited from calling any of his evidence ( which was to include scientific expert evidence ) , he pleaded guilty as he could not defend his case ... The Learned Judge was wrong not to permit PERSON to change his plea and defend his case in front of a jury . \u201d","The followings heads were identified within that ground : ( i ) the entering of the guilty plea and the subsequent clarifications by the applicant of his acceptance of guilt ( see paragraphs CARDINAL above ) ; ( ii ) the application to vacate the plea ; and ( iii ) the learned judge \u2019s refusal to hear a renewed application to vacate the plea ( see paragraph CARDINAL above ) .","In the written legal advice received by Mr GPE and lodged with the court in support of the need for directions , the grounds of appeal are summarised as follows :","\u201c CARDINAL . The refusal of the Learned Judge to exclude all or substantial parts of the product of a covert listening device installed in a vehicle said to be used by PERSON , and\/or to stay the proceedings as an abuse of ORG process , and","The refusal of the Learned Judge thereafter to permit Mr GPE to revoke his plea of guilty . \u201d","The document made it clear that the alleged anomalies contained in the recordings were apparent at a very early stage , and before the voir dire .","Mr PERSON renewed his application for leave to appeal before the full court . He sought to lodge amended grounds of appeal on CARDINAL October DATE , intended to replace those drafted by trial counsel and considered by the single judge . He sought to rely on the amended grounds \u201c in support of his renewed application for leave to appeal against conviction and sentence and his application to call fresh evidence \u201d . Notwithstanding the reference to an application to call fresh evidence in his amended grounds of appeal , no formal application to call fresh evidence , in compliance with LAW DATE and the relevant Criminal Procedure Rule and applicable practice directions ( see paragraphs CARDINAL - CARDINAL above ) , was lodged .","Mr PERSON \u2019s amended grounds of appeal , in outline , were :","\u201c ( i ) The judge should have stayed the indictment or excluded the evidence of the covert police tapes . The arguments for doing so were so strong and compelling that this court can properly interfere with the exercise of the judge \u2019s discretion . In refusing the defence submissions , the judge reached conclusions of fact that were untenable on the evidence he had heard .","( ii ) There is now a body of technical evidence , unavailable to the applicant at trial , which shows that the tapes are contaminated with recordings from other sources . Knaggs\u2019 voice can be heard during periods of signal loss to the probe . CARDINAL of the recording sources is an interception of Knaggs\u2019 mobile phone : s CARDINAL of RIPA CARDINAL prohibits its use in evidence . New evidence also shows that GPE was not in his car , the site of the probe , when a significant proportion of the recordings occur . If this evidence had been available at trial , it would , or may , have had a decisive influence on the submissions to stay the indictment or exclude the evidence of the covert tapes .","( iii ) The new evidence sheds light on the way the probe functioned and demonstrates that it caused , of itself , an interception of Knaggs\u2019 calls ... If the probe was an interception , s. CARDINAL of RIPA renders the whole of its product inadmissible .","( iv ) New evidence , in the form of witness statements made after the applicant \u2019s trial , tends to undermine and cast doubt on the evidence of [ W. ] ...","( v ) Other new evidence ... tends to show that the applicant \u2019s conviction was unsafe . \u201d","As regards ground ( ii ) , the grounds explained that in the course of the confiscation proceedings against Mr GPE , a variety of expert reports had emerged , including reports by Mr PERSON and Mr Clues . Mr PERSON sought leave to rely on these reports , as well as further reports being prepared at the time , and statements from CARDINAL witnesses showing that PERSON PERSON was not in the vehicle on at least forty per cent of the occasions when his voice was said to be recorded on the probe . An affidavit signed by PERSON solicitor during the trial attested to the fact that the solicitor did not receive a copy of any report by PERSON , nor was she aware of the contents of any such report , until after PERSON conviction . She also confirmed that neither she nor PERSON counsel were aware that police ORG voices were recorded on the DAT tapes .","Mr Knaggs\u2019 skeleton argument , prepared by senior counsel and dated DATE , summarised the defence at trial as :","\u201c ... a denial and an attack on the admissibility of the probe evidence and on the credibility of the police officers generally . \u201d","The skeleton argument referred to the analysis of the DAT tapes by PERSON and the alleged presence of extraneous signals , noting :","\u201c It followed that the covert recording device was not necessary for the police to gain intelligence about the PERSON \u2019s activities as better quality intelligence was being obtained from the intercept .","...","It further followed that this evidence also cast serious doubt as to the veracity of the police evidence generally and in particular when the police had maintained that \u2018 conventional surveillance is therefore not feasible in the LOC in order to get authority for the probe .","It also followed ... on the basis of the defence expert evidence that by disclosing the probe evidence the police officers concerned had breached section CARDINAL [ RIPA ] . \u201d","The skeleton argument explained that the defence wished to rely on the expert evidence for the following reasons :","\u201c ( a ) it went to admissibility : material existed that an interception had taken place . The fact of the intercept was directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance . Assertions in the applications for authorisation to conduct intrusive surveillance that the information could not reasonably be obtained by other means and the action sought to be achieved could not reasonably be achieved by other means were untenable , inaccurate , wrong and misleading ...","( b ) it went to the integrity of the tape recordings themselves as the extraneous signals could be evidence of tampering .","( c ) it went to the reliability of the probe evidence generally .","( d ) It went to the [ credibility ] and bona fides of the police officers involved in connection with the probe evidence .","( e ) it went to the integrity of the procedures adopted generally ... If the interception was made under a ORG warrant then it was possible that the purpose of planting the listening device was to enable the police to evade the restrictions in the ORG and adduce the fact of the intercept evidence in the proceedings .","( f ) it went to the integrity of the police officers generally ... \u201d","As to the effect of the trial judge \u2019s rulings on sections CARDINAL and CARDINAL ORG and section CARDINAL PACE , the skeleton argument stated :","\u201c The consequences of the Judge \u2019s rulings was that the Applicant could not raise as an issue that there had been an intercept disclosed by the Prosecution as part of the covert recordings and telephone cell data or even mention it . This meant that he was unable to challenge the veracity of the probe evidence by calling expert witnesses and he was so advised . This was a breach of LAW .","The Defence was prohibited from calling their expert evidence .","The Defence could not question technical experts called by the Prosecution .","The Defence could not challenge the admissibility of the probe evidence .","The Defence could not cross - examine the police officers responsible for the probe on this issue as to [ credibility ] .","The Defence could not seek to show that the police officers had acted illegally with regard to the probe evidence .","...","It follows that the Judge misinterpreted Section CARDINAL and took a wrong approach and this view of section CARDINAL constituted a breach of LAW . \u201d","The skeleton argument further clarified that the evidence which it was suggested should be before ORG was the evidence excluded by the DATE ruling , and not further evidence discovered since that ruling . It continued :","\u201c As the matter stands the ORG has not disclosed to ORG :","a. the expert reports of PERSON .","b. the expert reports of Mr Clues .","c. statements from CARDINAL witnesses .","As to the reports of Mr Campbell \u2013 some of these reports were available at the time of the Voir Dire decision but they could not be received in evidence by reason of the Judge \u2019s decision . In these premises it is submitted that these reports could be additional evidence and receivable by ORG on this basis .","The same applies to the reports of Mr Clues ...","The approximately CARDINAL witnesses all deal with particular incidents to discredit the probe evidence . The Applicant had supplied the names and in most cases the addresses of these witnesses to his then solicitors . As at the date of the plea of guilty his then solicitors had not obtained statement from any of these witnesses . These witnesses would have been able to give evidence despite the Judge \u2019s ruling . It is submitted that in these circumstances these witnesses were not available at the date of trial and could be called as additional evidence before this ORG . \u201d","The skeleton argument concluded :","\u201c Bearing in mind the suggested illegality and alleged contravention of LAW the Applicant seeks directions as to how to present this part of the case if necessary . \u201d","ORG refused Mr Knaggs\u2019 request to give directions in the case . It considered that directions were not necessary unless and until leave was granted .","Mr PERSON \u2019s skeleton argument , dated CARDINAL DATE and prepared by senior counsel , clarified in its introduction :","\u201c Additional evidence sought to be relied on is :","a. The expert reports from ORG and Clues , also referred to by GPE .","b. Evidence from witnesses within the GPE shogun , also relied on by GPE .","PERSON and PERSON statements impacting of [ W. ] \u2019s testimony .","d. The affidavit of [ Mr PERSON \u2019s solicitor at trial ] and letters of trial counsel . \u201d","The skeleton argument also reiterated the argument advanced by the defence during the voir dire that authority for the probe was wrongly granted , that the police officers had acted dishonestly in applying for authority and that the probe was intended to record the calls in order to circumvent the prohibition on intercept evidence being used as evidence . Mr PERSON further denied that at any time prior to trial he was aware that there were unexplained voices on the DAT tapes . The skeleton continued :","\u201c The applicant thus submits :","i. the evidence relating to voices on tapes and other recording sources should have been disclosed and were not . Equally if any reports from ORG had been served before [ Mr PERSON ] \u2019s trial he should have been served with them .","ii . [ Mr PERSON ] conducted the voir dire and his trial relying on their integrity . He had not been in the car nor is heard on the tapes .","iii . The question mark over the tapes would have been the last straw for a judge clearly already very concerned as to the state of the evidence he was being presented with .","iv . If the jury were aware that the main evidence had been tampered with , it is unlikely that they would have accepted the evidence of the police . \u201d","The skeleton argument for the prosecution , dated DATE , referred to the defence submissions during the voir dire , noting :","\u201c ... At no stage was there any challenge to the proposition that , so far as was material , the source of the voices recorded on CARDINAL , TIME , DAT tapes was conversation in Mr Knaggs\u2019 car . Nor was there any allegation of the kind which PERSON GPE now makes that the tapes were a fabrication composed of recordings from different sources .","Even if the judge \u2019s ruling of DATE was wrong , and I submit that it was not , it did nor prevent the defence from calling evidence to prove that there were signs that the tapes were fabricated or that PERSON Knaggs\u2019 voice was not on them . In the event the evidence of the officers who were responsible for recording and sealing the tapes was never challenged and PERSON did not seek to call any of the CARDINAL witnesses he now says are available to prove that he was not in the car when the tapes indicated that he was . \u201d","It continued :","\u201c ... At some of the many hearings involving Mr GPE it has been suggested that because some of the DAT tapes allegedly contain words derived from an intercept those tapes are inadmissible . I should make it clear that the prosecution categorically deny that this is the case but even if it is , it would not affect the admissibility of the great body of the recordings . The telephone records relied on by the ORG did not include any material associated with an intercept if there was one . It consisted of material produced by the service providers although a small part of it had originally been produced as what is known as intelligence billing during the course of the enquiry and was in a different format to the normal .... \u201d","An appeal hearing took place on DATE . According to the judgment of ORG , at the oral hearing the applicants submitted , first , that the judge \u2019s ruling in relation to the application of sections CARDINAL and CARDINAL ORG was wrong in law and effectively amounted to a breach of their right to a fair trial under LAW ; second that the judge was wrong to refuse the application to stay the proceedings as an abuse of process or , alternatively , to permit the evidence under the probe to be produced in evidence ; and third , that there was now evidence that PERSON had been lying in the course of the evidence that he had given at the trial . Mr GPE further submitted that he should be entitled to vacate his guilty plea . Similarly , a summary of the hearing prepared by prosecution counsel and dated DATE , provided to the ORG by PERSON in support of his application , indicates that the oral applications for leave to appeal were made on the grounds that :","\u201c ( a ) ORG Judge PERSON was wrong to rule that he had no power to order the prosecution to disclose whether or not there was an interception in this case ; ( b ) that if the ruling referred to in ( a ) was correct it made the trial unfair within the meaning of LAW ] ; ( c ) that the judge was wrong to rule that the probe tapes were admissible ; ( d ) in the case of GPE , that the judge was wrong to reject his application to change his plea and ( e ) in the case of PERSON that fresh evidence existed to throw doubt on the credibility of [ W. ] \u201d .","Leave to appeal was refused on CARDINAL DATE . Summarising the evidence against the applicants , Lord Justice PERSON , delivering the judgment of the court , noted :","\u201c CARDINAL . The evidence against the applicants fell essentially into CARDINAL parts . Firstly , there was what might be called ordinary surveillance evidence ; that is , evidence of what the police saw and heard over a period from DATE to CARDINALth DATE . It is not necessary for the purposes of this judgment to go in detail through that evidence , but we shall touch on it when dealing with the overall story . The second part of the evidence was the evidence obtained from a probe which had been placed in PERSON Knaggs\u2019 PERSON car on or DATE . That probe picked up all conversations within the car and also PERSON , if one can put it that way , of mobile telephone conversations . Finally , there was the evidence of [ W. ] .","Put together , that evidence showed that these applicants were clearly closely connected . There was abundant evidence of meetings , abundant evidence of telephone conversations , and , as we shall see , there were occasions when members of the conspiracy were caught in possession of drugs . \u201d","As to Judge PERSON \u2019s ruling on the applicants\u2019 application relating to sections CARDINAL and CARDINAL ORG , ORG noted :","\u201c DATE . It is important to put that application in its context . By then , the position was that the material which had been obtained from the probe , which had been recorded initially on CARDINAL tapes , one of which was the master tape and the other was the working tape , had been re - recorded from the working tape to provide copies of what had been heard to any defendant who wished to have a copy and check it . And transcripts had been made from those tapes and of course were available . It is apparent from the material that we have that CARDINAL reports on those tapes had been provided to those advising PERSON by a Mr Campbell by the date upon which the ruling with which we are concerned was made . At no time at that stage was it apparent that any challenge was going to be made to the reliability or accuracy of either the tapes , the copies or the transcripts , or at least no relevant ones . As far as PERSON was concerned , there was indeed no defence statement .","The nature of the application that was made in those circumstances is of some importance . What was being suggested was that the reports from Mr ORG had identified the possibility of an intercept ... , the existence of such an intercept being prima facie protected from disclosure in any form under LAW .","CARDINAL Mr PERSON , who was appearing for PERSON at the time , in the first place was asking for , in effect , disclosure of whether or not an intercept had taken place . The context in which he made that application was ( as one can see from page CARDINAL of the transcript ) in order to enable him to put forward an argument in relation to the installation of the probe that it was not necessary for the probe to be installed , which is a requirement under Part II of that Act , on the basis that the intercept would be able to inform surveillance in a way which would mean that it was not necessary for the probe to be installed . The application was undoubtedly understood in that way by the judge . And when Mr PERSON \u2019s submissions were distilled , they came to a request for either an admission that an intercept had taken place , together with the dates over which it was active , or confirmation that no such intercept had occurred . He and other counsel expressly eschewed making any request for what might be called the content of any intercepts that may have taken place . It follows that the judge was essentially only concerned with the question of whether or not it was permissible to answer the CARDINAL questions which were posed by Mr Ryder . Section CARDINAL , Mr Garside QC submitted to the judge on behalf of the prosecution , precluded the judge from answering those questions , or requiring any other person to answer those questions . The judge agreed , and in our judgment that conclusion was entirely correct . \u201d","Latham LJ noted that the applicants submitted before ORG that the sections CARDINAL and CARDINAL ruling had produced substantial unfairness because they were precluded from being able to put before the jury material which might have in some way undermined the integrity of the probe material . He continued :","\u201c CARDINAL . ... But , as will have been appreciated from what we have already said , that was not the basis upon which the application was made . It was clearly made in order to support at that stage the argument that the application for the installation of the probe had not been a proper application because the material could have been obtained in some other way . \u201d","He noted :","\u201c DATE . The application , however , does raise this matter ... namely that there was material in the evidence of PERSON which arose out of his conclusion that there might have been an intercept which could be said to have been material which could have undermined the prosecution assertion that the taped material was material which could be relied upon as being an accurate recording and transcription of the material obtained by the probe and the probe alone .","For the reasons that we have given , that does not strictly arise as a problem in this case because that was not what was being submitted at the time . But it seems to us to be necessary to say that , when CARDINAL looks at the material upon which that assertion is based , it is difficult to see how , ultimately , it could have cast any real doubt upon the reliability of the probe evidence overall . But that is an aside for the purposes of these applications . And , in particular , that comment only relates to the CARDINAL reports in existence at that time . Accordingly , as far as the applications are based on the judge \u2019s ruling in relation to sections CARDINAL and DATE , the submissions do not succeed . \u201d","NORP The court also found that the decision not to stay the proceedings did not result in the applicants\u2019 trial being unfair , emphasising at the outset :","\u201c CARDINAL . ... It is important , it seems to us , to repeat what we said earlier , which is at this stage in the proceedings there was no challenge to the reliability of the evidence produced by the probe , and it was on that basis that the judge approached the matter .","Although there was no challenge to the integrity , so to speak , of the material produced by the probe , there was a root and branch attack on the credibility and behaviour of the QUANTITY police officers who gave evidence and who were the main police protagonists in relation to this aspect of the case ... \u201d","Nor did the decision to admit the probe evidence result in unfairness :","\u201c CARDINAL . Turning to the ruling in relation to section CARDINAL , it is important to remind ourselves once again that at this stage there was no challenge to the integrity of the material produced by reason of the probe . As the judge himself said : in those circumstances how could it be unfair for this material to go before the jury ? The defendants were in a position to explain what was heard on the tapes as being innocent , if they could ; they were in no way precluded from doing so . They could , for example , have called evidence in relation to the people who were at the other end of the telephone conversations if it was considered that it was necessary in the interests of their defence to do so . It is significant to note in that context that part of the application before us DATE from PERSON is an application to call CARDINAL witnesses to say that the telephone conversations either did not take place when they were said to have taken place or were in a different form , or , alternatively , were related to matters other than drugs matters . Those were all witnesses available to Mr PERSON and his advisers at the time had they wished to call them . Clearly , in those circumstances there could be no unfairness arising out of the admission of what was evidence which had not been obtained by way of entrapment or vitiated in any other way of that sort . It follows that the challenge insofar as it relates to the judge \u2019s rulings in that respect must also fail . \u201d","Leave was also refused in respect of the remaining grounds of appeal .","In DATE ORG ( \u201c SOCA \u201d ) suspected , on reasonable grounds , that PERSON , in detention at ORG , was involved with others in a conspiracy to import cocaine into GPE . On DATE a number of arrests were made . At the request of SOCA , prison security entered Mr GPE \u2019s cell and removed him to the segregation unit . He remained in the segregation unit until DATE .","During Mr Knaggs\u2019 absence from his cell , prison security and SOCA searched the cell . The search was carried out under lawful authority and all material within the cell , including legal correspondence , was seized and placed in bags with tamper - proof seals . This was done pending an examination of the material by independent counsel , whose task it was to identify any items subject to legal professional privilege , which were then returned to Mr GPE . The exercise produced disputed material , which was subsequently held for assessment by a Circuit Judge .","Section CARDINAL of the Regulation of Investigatory Powers Act CARDINAL ( \u201c RIPA \u201d ) provides for the authorisation of directed surveillance , i.e. covert surveillance involving observing an individual in public . Section CARDINAL ) provides that such authorisation should not be granted unless the police officer believes that the authorisation is \u201c necessary \u201d and that the surveillance is proportionate to what is sought to be achieved by carrying it out . Authorisation is \u201c necessary \u201d for the purposes of section CARDINAL ) if it is necessary , inter alia , ( a ) in the interests of national security ; ( b ) for the purpose of preventing or detecting crime or of preventing disorder ; ( c ) in the interests of the economic well - being of GPE ; or ( d ) in the interests of public safety .","NORP Under paragraph CARDINAL of the Code of Practice adopted pursuant to section CARDINAL of the Criminal Procedure and Investigations Act CARDINAL , the officer in charge of an investigation must ensure that material relevant to the investigation is recorded in a durable or retrievable form .","Under section CARDINAL(CARDINAL ) RIPA , senior authorising officers are given the power to grant authorisations for carrying out intrusive surveillance , i.e. surveillance which involves observing an individual in private or which is carried out by means of a surveillance device . Section CARDINAL ) provides that such authorisation should not be granted unless the officer believes that the authorisation is \u201c necessary \u201d and that the surveillance is proportionate to what is sought to be achieved by carrying it out . Authorisation is \u201c necessary \u201d for the purposes of section CARDINAL(CARDINAL ) if it is necessary ( a ) in the interests of national security ; ( b ) for the purpose of preventing or detecting serious crime ; or ( c ) in the interests of the economic well - being of GPE . Section CARDINAL ) requires that in considering whether the test in section CARDINAL ) has been met , the officer should consider whether the information which it is thought necessary to obtain by intrusive surveillance could reasonably be obtained by other means . Under section CARDINAL(CARDINAL ) , authorisation of intrusive surveillance can be renewed . Prior to any renewal , there must be a review .","Section CARDINAL of LAW CARDINAL also provides for authorisation for police action if it is necessary for the action specified to be taken for the purpose of preventing or detecting serious crime and the taking of the action is proportionate to what the action seeks to achieve .","Section CARDINAL(CARDINAL ) RIPA makes it an offence intentionally and without lawful authority to intercept any communication in the course of transmission by a public telecommunications system . Pursuant to section CARDINAL(CARDINAL)(b ) an intercept will have lawful authority if it occurs in accordance with a warrant under LAW . Section CARDINAL ) allows the Secretary of ORG to issue a warrant to secure the interception of communications described in the warrant . Section CARDINAL(CARDINAL ) provides that a warrant shall not be issued unless the Secretary of ORG believes that the warrant is \u201c necessary \u201d and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct . Under section CARDINAL(CARDINAL ) , a warrant is \u201c necessary \u201d if it is necessary , inter alia , ( a ) in the interests of national security ; or ( b ) for the purpose of preventing or detecting serious crime . Section CARDINAL(CARDINAL ) requires that in considering whether the test in section CARDINAL(CARDINAL ) has been met , the Secretary of ORG should consider whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means .","Section CARDINAL RIPA imposes a duty on specified persons to keep secret , inter alia , the existence and content of an interception warrant ; the details of its issue and any renewal ; the steps taken in pursuance of the warrant ; and everything in the intercepted material and any \u201c related communications data \u201d . Those subject to this obligation include anyone holding office under the ORG . Section CARDINAL(CARDINAL ) establishes that disclosure in contravention of the section constitutes an offence .","Section QUANTITY \u201c related communications data \u201d in this context as so much of any communications data as are obtained by , or in connection with , the interception and relate to the communication or to the sender or recipient , or intended recipient , of the communication . \u201c Communications data \u201d are defined in section ORG RIPA as traffic data comprised in or attached to a communication for the purposes of any telecommunications system by means of which they are being or may be transmitted ; any information which includes none of the contents of a communication and is about the use made by a person of a telecommunications service or in connection with the provision to or use by a person of a telecommunications service ; or any information not otherwise included that is held or obtained by a person providing a telecommunications service in relation to persons to whom he provides the service .","Section CARDINAL of the Official Secrets Act DATE provides :","\u201c ( CARDINAL ) A person who is or has been a ORG servant or government contractor is guilty of an offence if without lawful authority he discloses any information , document or other article to which this section applies and which is or has been in his possession by virtue of his position as such .","( CARDINAL ) This section applies to any information , document or other article\u2014","( a ) the disclosure of which\u2014","( i ) results in the commission of an offence ; or","( ii ) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody ; or","( iii ) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders ; or","( b ) which is such that its unauthorised disclosure would be likely to have any of those effects .","( CARDINAL ) This section also applies to\u2014","( a ) any information obtained by reason of the interception of any communication in obedience to a warrant issued under LAW DATE or under the authority of an interception warrant under LAW , any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in , or has been obtained by reason of , any such interception ... \u201d","Section CARDINAL of ORG \u201c PACE \u201d ) provides :","\u201c ( CARDINAL ) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it .","( CARDINAL ) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence . \u201d","Section CARDINAL RIPA covers the admissibility of evidence relating to or obtained from an interception warrant . Section CARDINAL(CARDINAL ) provides that :","\u201c Subject to section CARDINAL , no evidence shall be adduced , question asked , assertion or disclosure made or other thing done in , for the purposes of or in connection with any legal proceedings which ( in any manner)\u2013","( a ) discloses , in circumstances from which its origin in anything falling within subsection ( CARDINAL ) may be inferred , any of the contents of an intercepted communication or any related communications data ; or","( b ) tends ( apart from any such disclosure ) to suggest that anything falling within subsection ( CARDINAL ) has or may have occurred or be going to occur . \u201d","Section PERSON ) refers to :","\u201c ( a ) conduct by a person falling within subsection ( CARDINAL ) that was or would be an offence under LAW ) or ( CARDINAL ) of this LAW or under LAW DATE ;","( b ) a breach by the Secretary of ORG of his duty under section CARDINAL(CARDINAL ) of this LAW ;","( c ) the issue of an interception warrant ... ;","( d ) the making of an application by any person for an interception warrant ... ;","( e ) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant . \u201d","Section CARDINAL(CARDINAL ) sets out the persons referred to in section PERSON ) :","\u201c ( a ) any person to whom a warrant under this LAW may be addressed ;","( b ) any person holding office under the ORG ;","( c ) any member of ORG ;","( d ) any member of ORG ;","( e ) any person employed by or for the purposes of a police force ;","( f ) any person providing a postal service or employed for the purposes of any business of providing such a service ; and","( g ) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service . \u201d","Section CARDINAL RIPA sets out exceptions to section CARDINAL RIPA . The relevant subsections of section CARDINAL provide that :","\u201c ( CARDINAL ) Nothing in section CARDINAL(CARDINAL ) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to\u2014","( a ) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution ; or","( b ) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone .","( CARDINAL ) Subject to subsection ( CARDINAL ) , where in any criminal PERSON","( a ) a relevant judge does order a disclosure under subsection ( CARDINAL ) , and","( b ) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so ,","he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice .","( CARDINAL ) Nothing in any direction under subsection ( CARDINAL ) shall authorise or require anything to be done in contravention of section CARDINAL(CARDINAL ) . \u201d","The Interception of Communications Code of Practice , adopted pursuant to section QUANTITY , provides guidance as to the application of sections CARDINAL and CARDINAL ORG . At LAW , the LAW states :","\u201c CARDINAL.CARDINAL The general rule is that neither the possibility of interception nor intercepted material itself plays any part in legal proceedings . This rule is set out in LAW , which excludes evidence , questioning , assertion or disclosure in legal proceedings likely to reveal the existence ( or the absence ) of a warrant issued LAW ( or ORG DATE ) . This rule means that the intercepted material can not be used either by the prosecution or the defence . This preserves \u2018 equality of arms\u2019 which is a requirement under LAW . \u201d","The Code goes on to consider the operation of the exceptions set out in CARDINAL :","\u201c CARDINAL Section CARDINAL contains a number of tightly - drawn exceptions to this rule . This part of the Code deals only with the exception in subsections ( CARDINAL ) to ( CARDINAL ) .","CARDINAL Section CARDINAL(CARDINAL)(a ) provides that intercepted material obtained by means of a warrant and which continues to be available , may , for a strictly limited purpose , be disclosed to a person conducting a criminal prosecution .","CARDINAL This may only be done for the purpose of enabling the prosecutor to determine what is required of him by his duty to secure the fairness of the prosecution . The prosecutor may not use intercepted material to which he is given access under section CARDINAL(CARDINAL)(a ) to mount a cross - examination , or to do anything other than ensure the fairness of the proceedings .","...","CARDINAL If intercepted material does continue to be available at the prosecution stage , once this information has come to the attention of the holder of this material the prosecutor should be informed that a warrant has been issued under LAW and that material of possible relevance to the case has been intercepted .","...","CARDINAL Section CARDINAL(CARDINAL)(b ) recognises that there may be cases where the prosecutor , having seen intercepted material under subsection ( DATE ) , will need to consult the trial Judge . Accordingly , it provides for the Judge to be given access to intercepted material , where there are exceptional circumstances making that disclosure essential in the interests of justice .","CARDINAL This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to him alone , under this subsection . This is an exceptional procedure ; normally , the prosecutor \u2019s functions under subsection ( DATE ) will not fall to be reviewed by the judge . To comply with section CARDINAL(l ) , any consideration given to , or exercise of , this power must be carried out without notice to the defence . The purpose of this power is to ensure that the trial is conducted fairly .","CARDINAL The judge may , having considered the intercepted material disclosed to him , direct the prosecution to make an admission of fact . The admission will be abstracted from the interception ; but , in accordance with the requirements of section CARDINAL(l ) , it must not reveal the fact of interception . This is likely to be a very unusual step . The LAW only allows it where the judge considers it essential in the interests of justice .","CARDINAL Nothing in these provisions allows intercepted material , or the fact of interception , to be disclosed to the defence . \u201d","In Attorney General \u2019s Reference No . DATE [ DATE ] ORG CARDINAL , ORG was asked for its interpretation of the prohibition in section CARDINAL(CARDINAL ) ORG . The reference arose from legal proceedings in a criminal case which took place before the entry into force of ORG when interception was regulated by ORG DATE ( \u201c LOC ) . Although the ORG had introduced regulation for interception of public telecommunications systems , interception of private telecommunications systems remained unregulated under the ORG regime and no warrant was required for such interception . The question asked centred on whether , and if so to what extent , a criminal court could investigate whether intercept material relied on by the prosecution had been obtained by intercepting a private , as opposed to a public , telecommunications system . During a criminal trial , the prosecution had sought to admit evidence arguing that interception had taken place on a private telecommunications system . The defence case was that the interception had taken place on a public telecommunications system and so the evidence was inadmissible . At the trial , the defence submitted that section CARDINAL RIPA prevented them from asserting that the interception had taken place on a public system , but did not prevent the prosecution from adducing evidence that it had taken place on a private system . The defence asked the judge under section CARDINAL PACE to exclude prosecution evidence that the interception had taken place on a private system , on the grounds that it would not be fair to admit that evidence and shut out the defence case to challenge that the interception had taken place on a private system . The judge acceded and as a result , the prosecution were obliged to offer no evidence and the defendants were acquitted .","Lord GPE of PERSON delivered the leading judgment in Attorney General \u2019s Reference No . DATE . He concluded :","\u201c CARDINAL . The inclusion in section PERSON ) of an offence under LAW ) of the LAW poses an obvious problem of interpretation given the very sweeping language in which section CARDINAL(CARDINAL ) is expressed . The requirement in section CARDINAL(CARDINAL)(a ) that the conduct must be by a person falling within subsection ( CARDINAL ) , and the listing in that subsection of persons and bodies involved in the warrantry regime , strongly suggest that the focus of the prohibition is , as in LAW , on that regime . It is also relevant to recall that interception of a private telecommunication system is only criminal under section CARDINAL ) if without lawful authority and section CARDINAL ) expressly provides that section CARDINAL(CARDINAL)(a ) shall not prohibit the disclosure of the contents of a communication if the interception of that communication was lawful by virtue of section CARDINAL or section CARDINAL . In other words , disclosure is not prohibited if the interception was lawfully authorised under those sections . It would be absurd to conclude that there could be no enquiry to establish whether the interception was lawfully authorised or not , and whether or not the interceptor \u2019s conduct was excluded from criminal liability under section CARDINAL(CARDINAL ) ... Given the obvious public interest in admitting probative evidence which satisfies the requirements of sections CARDINAL ) , CARDINAL and DATE , and the absence of any public interest in excluding it , I am satisfied that a court may properly enquire whether the interception was of a public or private system and , if the latter , whether the interception was lawful . If the court concludes that it was public , that is the end of the enquiry . If the court concludes that it was private but unlawful , that also will be the end of the enquiry . If it was private but lawful , the court may ( subject to any other argument there may be ) admit the evidence .","Lord PERSON of GPE , noting that the principal objective of LAW appeared to be to preserve the secrecy of the warrant system , considered that the warrant system would not be damaged where , for example , a challenge by the defendant to the assertion that the interception had been lawful under LAW CARDINAL(CARDINAL ) ( consent of both parties to the interception ) suggested that an offence had been committed under LAW ( see paragraph CARDINAL above ) . He considered that section PERSON ) permitted a challenge to the lawfulness of the interception by the defence .","Lord PERSON noted :","\u201c DATE . It is true , as Lord PERSON has pointed out , that the inclusion in section PERSON ) of an offence under LAW ) of the LAW creates a linguistic difficulty given the language in which section CARDINAL(CARDINAL ) is expressed . In my view , however , this point is decisively outweighed by a purposive interpretation of the statute . No explanation for resorting to purposive interpretation of a statute is necessary . One can confidently assume that ORG intends its legislation to be interpreted not in the way of a black letter lawyer , but in a meaningful and purposive way giving effect to the basic objectives of the legislation . So approached the answer to the central question is obvious : a court may enquire into the question whether tapping took place on a private system . \u201d","In R ( on the application of ORG ) v . The Governor of ORG and another [ CARDINAL ] SC CARDINAL , ORG applied Attorney General \u2019s Reference No . DATE , noting :","\u201c CARDINAL . In Attorney - General \u2019s Reference ( No . DATE ) ... the ORG , in view of the absurdity that would otherwise result , refused to give its literal interpretation to a statutory provision which , literally read , precluded the defence from asking questions to establish that there had been interception ( consequently illegal ) on part of a public telecommunications system , but allowed the prosecution to call evidence to the effect that the interceptions had taken place wholly within a police private telecommunications system ( and were therefore legal ) . The linguistic difficulty was \u2018 decisively outweighed by a purposive interpretation of the statute\u2019 ... \u201d","Section CARDINAL of LAW DATE ( \u201c the DATE LAW ) provides for the lodging of fresh evidence in the context of a criminal appeal :","\u201c ( CARDINAL ) For the purposes of an appeal under this Part of this Act the Court of Appeal may , if they think it necessary or expedient in the interests of justice\u2014","( a ) order the production of any document , exhibit or other thing connected with the proceedings , the production of which appears to them necessary for the determination of the case ;","( b ) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the ORG , whether or not he was called in those proceedings ; and","( c ) receive any evidence which was not adduced in the proceedings from which the appeal lies . \u201d","Pursuant to section CARDINAL ) , the Court of Appeal shall , in considering whether to receive any evidence , have regard in particular to :","\u201c ( a ) whether the evidence appears to the ORG to be capable of belief ;","( b ) whether it appears to the ORG that the evidence may afford any ground for allowing the appeal ;","( c ) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal ; and","( d ) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings . \u201d","The Criminal Procedure Rules DATE applicable at the time of the appeal provided , at Rule CARDINAL :","\u201c ( CARDINAL ) Notice of an application by the appellant ... \u2013","( a ) that a witness who would have been a compellable witness at the trial be ordered to attend for examination by the court ; or","( b ) that the evidence of a witness be received by the court ;","shall be in the form set out in the Practice Direction and shall be served on the Registrar ; save that where a notice of an application under sub - paragraph ( a ) or ( b ) is given together with a notice of appeal or notice of application for leave to appeal , it shall be served on the ORG officer .","( CARDINAL ) An application as aforesaid may be made to the court orally . \u201d","The Lord Chief Justice \u2019s ORG indicated that the relevant form which had to be completed in respect of an application for fresh evidence was \u201c Form W \u201d . The details to be included in Form W were the name and address of the appellant , the particulars of the witness , the evidence to be given by the witness together with a copy of the witness statement and an explanation of why the evidence was not given at trial .","Considering the operation of section CARDINAL of LAW in R v. ORG [ DATE ] ORG CARDINAL , Lord PERSON of PERSON noted :","There was no real issue between the parties to this appeal concerning the construction of section PERSON ) and ( CARDINAL ) . The term \u2018 ORG is used to describe the formal act of admitting the evidence referred to before ORG . Deciding whether or not to receive the evidence is the first task the court must usually undertake when application is made that it should do so under section CARDINAL(CARDINAL)(c ) . In considering whether or not it should receive such evidence , usually called \u2018 fresh evidence\u2019 , the court must have regard in particular to the matters listed in ( CARDINAL)(a)(d ) . These are matters to which , as practice had developed over DATE , the courts had come to pay attention : see R v Parks [ DATE ] CARDINAL WLR CARDINAL at DATE . They are matters of obvious significance . When considering an application to receive the fresh evidence of a witness , the court will have before it a written statement of the evidence which the witness will give : see form CARDINAL , prescribed by rule CARDINAL of ORG DATE ( SI DATE No CARDINAL ) . If the statement does not appear to the court on reading it to be even capable of belief , there will be little purpose in proceeding further . The statement may be obvious nonsense . Similarly , if it does not appear to the court when it reads the statement that it might , even if fully accepted , afford any ground for allowing the appeal ( that is , for thinking that the conviction may be unsafe ) there will again be little point in proceeding further . It is obviously relevant to consider whether the fresh evidence would be admissible at the trial , although ORG has held that section CARDINAL(CARDINAL)(a ) is not limited to admissible evidence ( R v D and J [ DATE ] CARDINAL CrAppR CARDINAL ) . ORG will always pay close attention to the explanation advanced for failing to adduce the evidence at the trial , since it is the clear duty of a criminal defendant to advance any defence and call any evidence on which he wishes to rely at the trial . It is not permissible to keep any available defence or any available evidence in reserve for deployment in ORG . Thus the practice of the court is to require a full explanation of the reasons for not adducing the evidence at the trial ( R v PERSON [ DATE ] CrimLR CARDINAL ) . It is however clear that while the court must , when considering whether to receive fresh evidence , have regard in particular to the matters listed in section CARDINAL(CARDINAL)(a)-(d ) , and while in practice it is most unlikely to receive the evidence if the requirements of ( a ) , ( b ) and ( c ) are not met , the court has an overriding discretion to receive fresh evidence if it thinks it necessary or expedient in the interests of justice to do so . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94077","languageisocode":"ENG","respondent":"MKD","branch":"CHAMBER","date":2009,"docname":"CASE OF BOCVARSKA v. \"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA\"","importance":3,"conclusion":"Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","According to an official note of ORG of DATE , the applicant and Mr PERSON registered PERSON STD ( \u0441\u0430\u043c\u043e\u0441\u0442\u043e\u0435\u043d \u0442\u0440\u0433\u043e\u0432\u0441\u043a\u0438 \u0434\u0443\u043a\u0430\u043d , \u201c the undertaking \u201d , as opposed to companies incorporated under company law ) through which they pursued business activities . On CARDINAL DATE they ceased trading through the undertaking . On DATE the undertaking was re - registered in the name of the applicant . The undertaking operated until DATE , when its activities were voluntarily terminated .","On DATE the ORG ( ORG \u0441\u0443\u0434 ) upheld the undertaking 's claim and ordered LAW ( \u201c the debtor \u201d ) to pay a debt amounting to CARDINAL old NORP denars ( ORG interest . The court found that the debtor and the undertaking had concluded a framework agreement under which the latter would produce paper products for the debtor . As the debtor had failed to pay for the products made , the court upheld the undertaking 's claim .","On DATE the Macedonia - Skopje Commercial Court ( PERSON \u0441\u0443\u0434 \u043d\u0430 GPE ) , sitting as an appellate court , dismissed an appeal by the debtor and upheld the lower court 's decision . On DATE ORG dismissed an appeal on points of law ( \u0440\u0435\u0432\u0438\u0437\u0438\u0458\u0430 ) by the debtor and upheld the lower courts ' decisions .","On DATE the undertaking requested enforcement of the judgment debt , proposing the following means of enforcement : transfer of the money due from the debtor 's account and an inventory , evaluation and public auction of the debtor 's movable and immovable property . On DATE the ORG granted the undertaking 's request and ordered the debtor to pay the debt . On DATE it dismissed an objection by the debtor .","On DATE ORG dismissed a request by the debtor for postponement of enforcement . On DATE ORG dismissed an appeal by the debtor and upheld its decision .","On DATE ORG upheld an objection by the debtor and discontinued the enforcement proceedings in so far as they concerned interest .","On DATE ORG ordered ORG to require the bank in which the debtor had had its foreign currency account to transfer the balance due to the undertaking 's account . It also ordered the bank not to make any payments from the debtor 's account to other parties until the undertaking 's claim had been completely honoured . The court established that the undertaking had received part of the judgment debt . It further noted that , as there were no other funds available in the debtor 's account , on DATE the undertaking had requested the court to satisfy its claim from other accounts belonging to the debtor .","On DATE the undertaking , represented by PERSON , and the debtor reached a court settlement ( \u201c the DATE settlement \u201d ) concerning the means of securing payment of the remaining balance , which amounted to ORG ( MONEY ) . The undertaking agreed to receive the balance in CARDINAL equal instalments within DATE .","As the debtor did not pay the debt as agreed , on DATE ORG ordered an inventory and public auction of the debtor 's vehicles . On DATE ORG dismissed an appeal by the debtor and upheld the lower court 's decision .","On DATE ORG partly allowed a request by the debtor for postponement of the enforcement in respect of some heavy goods vehicles and a bus . On DATE the court ordered the confiscated vehicles to be returned to the debtor as they were necessary for its work . On CARDINAL DATE ORG \u0441\u0443\u0434 ) upheld those decisions .","On DATE ORG ( ORG \u0441\u0443\u0434 ) dismissed a request by the debtor to postpone enforcement of the DATE settlement .","On DATE ORG upheld an objection by the debtor , who had argued that the undertaking had no legal capacity as a creditor in the proceedings as it had ceased to exist . It also stayed the enforcement proceedings and ordered ORG to lift the charging orders on the debtor 's accounts . It dismissed the applicant 's arguments that she was a successor to the undertaking and that there had been a continuity of the undertaking 's claims . On DATE ORG dismissed an appeal by the undertaking as inadmissible .","Pending the proceedings described above , on DATE ORG granted the undertaking 's request of DATE and issued a charging order on CARDINAL of the debtor 's shops ( \u201c the shop \u201d ) . On DATE ORG Instance dismissed an objection by the debtor . On DATE the ORG quashed the lower court 's decision and ordered a re - examination of the case . On DATE ORG suspended the charging order , as the shop had been exempted from enforcement since it was necessary for the debtor 's work . On DATE ORG quashed that decision and ordered a re - examination of the case . On DATE ORG Instance dismissed an objection by the debtor .","On DATE the undertaking requested the court to enforce the claim as established by the DATE settlement . On DATE ORG granted the undertaking 's request for the sale of the debtor 's shop in respect of the principal debt , which had amounted to DM CARDINAL,CARDINAL , together with interest between DATE until settlement , plus trial costs . On DATE ORG partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest .","On DATE ORG allowed an appeal by the debtor and quashed the decision of DATE . It found that the lower court had failed to determine the debtor 's objection as to whether other enforcement proceedings had already been pending between the same parties on the same subject .","On DATE ORG partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest . The order for the sale of the shop remained unaffected .","On DATE ORG dismissed an appeal by the debtor and upheld the lower court 's decision .","On DATE the public prosecutor lodged with ORG a request for the protection of legality ( \u0431\u0430\u0440\u0430\u045a\u0435 \u0437\u0430 \u0437\u0430\u0448\u0442\u0438\u0442\u0430 \u043d\u0430 \u0437\u0430\u043a\u043e\u043d\u0438\u0442\u043e\u0441\u0442\u0430 ) ( \u201c legality review request \u201d ) challenging the legality of the lower courts ' decisions of DATE and DATE . It argued that the DATE settlement could not be regarded as an enforcement order ( \u0438\u0437\u0432\u0440\u0448\u043d\u0430 \u0438\u0441\u043f\u0440\u0430\u0432\u0430 ) as it had been concluded while the enforcement proceedings were already pending and it had merely concerned the means of enforcing payment of the outstanding debt . The public prosecutor 's office further contested , inter alia , the legal capacity of the undertaking in the enforcement proceedings as it had ceased to exist before it had lodged its application for enforcement on DATE . On DATE the undertaking made submissions in reply .","On DATE ORG upheld the public prosecutor 's legality review request and quashed the impugned decisions . It found that the lower courts had wrongly considered the DATE settlement to be an enforcement order that could validly be enforced . It instructed them , inter alia , to reconsider the undertaking 's legal capacity as a creditor in the enforcement proceedings .","On DATE ORG upheld the debtor 's objection concerning the undertaking 's capacity to take part in the proceedings as a creditor . It dismissed the undertaking 's application for enforcement and ordered the proceedings to be resumed in the name of the applicant as a creditor . It held that the applicant had been the last person who had pursued business activities through the undertaking before it had ceased to exist . As the undertaking did not have the capacity of a legal entity , all its rights and obligations , including its claim against the debtor , had to be considered to have been transferred to the applicant , as the physical person who had run it .","On DATE ORG upheld the lower court 's decision , finding no grounds to depart from the reasons given .","On DATE the public prosecutor submitted a fresh legality review request to ORG , challenging the legality of those decisions and claiming that the applicant lacked the legal capacity to replace the undertaking and take over the enforcement proceedings as a creditor . It further disputed that the DATE settlement could not be regarded as an enforcement order , as the enforcement proceedings had already been pending at the time when it had been concluded . On or CARDINAL DATE , the applicant , who was legally represented , made submissions in reply to the public prosecutor 's legality review request .","On DATE ORG upheld the public prosecutor 's request and quashed the lower courts ' decisions . It found that they had failed to establish whether the enforcement proceedings had been pending before the DATE settlement was concluded . It further held it to be irrelevant that the undertaking had ceased to operate , as the undertaking 's founders bore its rights and obligations and it had been their responsibility to establish their status before the courts .","On DATE ORG ordered the enforcement of the DATE settlement by sale of the shop in favour of the applicant . It held that the enforcement proceedings , which had been instituted before the DATE settlement , had ended with the first - instance court 's decision of DATE . It further recognised the applicant 's capacity to take over the undertaking 's claim and to be given the status of a creditor .","On CARDINAL DATE ORG upheld the lower court 's decision and dismissed an appeal by the debtor , which had submitted , inter alia , that the applicant had failed to establish that she had taken over the undertaking 's claim .","On DATE the public prosecutor lodged a third legality review request with ORG . The public prosecutor 's office reiterated its earlier allegations that the DATE settlement could not be regarded as an enforcement order and that the applicant could not automatically be considered to have taken over the undertaking 's claim .","On DATE ORG quashed the lower courts ' decisions . It found that they had erroneously established that the applicant had taken over the undertaking 's claims ipso jure as she had been the last proprietor of the undertaking . It further instructed them to verify whether there had been a valid certificate by which the undertaking 's claim had been transferred to the applicant .","On DATE ORG requested the applicant to provide , in accordance with LAW ( see paragraph CARDINAL below ) , written evidence that the undertaking 's claim had been transferred to her . On DATE the applicant submitted documents to the court , including a balance sheet ( \u0431\u0438\u043b\u0430\u043d\u0441 \u043d\u0430 \u043f\u0440\u0438\u0445\u043e\u0434\u0438 \u0438 \u0440\u0430\u0441\u0445\u043e\u0434\u0438 ) , bank account details , a receipt ( \u043f\u0440\u0438\u0437\u043d\u0430\u043d\u0438\u0446\u0430 ) and a certificate issued by a bank .","On DATE ORG Instance dismissed the applicant 's application for enforcement of the claim as established by the DATE settlement . Following ORG instructions , it held that there had been no valid certificate by which the undertaking 's claim had been transferred to the applicant . It therefore concluded that the latter could not claim to have the status of a creditor .","On DATE ORG quashed the decision as the lower court had failed to establish whether the applicant had owned and run the undertaking as a sole proprietor .","On DATE ORG Instance dismissed the applicant 's request as ill - founded . It found that the documents submitted to the court on DATE could not be regarded as a valid certificate by which the undertaking 's claim had been transferred to the applicant . It concluded that the applicant could not ipso jure have taken over the undertaking 's claim .","On DATE ORG overturned the decision and partly allowed the applicant 's application for enforcement of the principal debt indicated in the DATE settlement . It dismissed the applicant 's request for payment of the interest . It found , inter alia :","\u201c ... it is irrefutable that the creditor , PERSON , owned the undertaking ... , which had no legal capacity ... The fact that PERSON carried out transactions on the market through the undertaking at the time when the latter still operated implied that she was responsible for all the rights and obligations arising from it ... the lack of legal capacity of the undertaking ... , whose proprietor was the creditor [ the applicant ] , means that it was not a separate legal entity , but that its capacity , regarded as a pool of rights and obligations , is vested solely in the creditor , PERSON ... there is no transfer of the undertaking 's claims to PERSON , as the former does not have legal capacity , but the creditor [ the applicant ] was ... liable for the undertaking 's obligations ... \u201d","On or DATE the public prosecutor lodged a fourth legality review request with ORG in respect of ORG decision .","DATE . At the public prosecutor 's request , on DATE ORG postponed the enforcement of the order until ORG had determined the legality review request .","On DATE , the applicant made submissions to ORG in reply to the public prosecutor 's request .","On CARDINAL DATE ORG upheld the public prosecutor 's request , overturned ORG decision and upheld the first - instance court 's decision of DATE . It found , inter alia , that the lower courts had established the following facts :","\u201c ... the enforcement proceedings were pending before ORG between the [ undertaking ] and [ the debtor ] . On DATE they concluded a court settlement on the basis of which the enforcement proceedings were instituted ... on DATE ORG Instance stayed the proceedings ... on DATE ORG rejected the [ undertaking 's ] appeal as inadmissible [ these decisions concern the enforcement proceedings instituted before the DATE settlement was concluded ] ... on DATE the [ undertaking ] was registered in the name of PERSON .... On DATE [ the undertaking ] ... ceased to exist . PERSON was the last sole proprietor of the [ undertaking ] , which had been set up by her funds and her labour force . \u201d","The court went on to conclude that ORG had wrongly applied the substantive law for the following reasons :","\u201c In the present case , the requirements of the provision cited above [ referring to section CARDINAL of LAW ] , for the granting of enforcement at the request of a person not indicated as a creditor in the enforcement order , were not satisfied . There is no written certificate attesting that the claim was transferred from [ the undertaking ] to PERSON , as a creditor . The termination of the undertaking 's operations does not ipso jure entail the transfer of its claims to the last proprietor who ran it . Indeed , FAC did not contain a provision providing for ipso jure transfer of the undertaking 's claims to the last proprietor who ran it ... Moreover , the court settlement of DATE can not be regarded as an enforcement order as it resulted from the enforcement proceedings already pending between the same creditor [ meaning the undertaking ] and the debtor ... the subject of this settlement was the means of enforcing the outstanding debt ... \u201d","The decision was served on the applicant on DATE .","LAW provides that ORG is the highest court and that it ensures the uniform application of the laws by the courts .","LAW ( CARDINAL and CARDINAL ) of LAW provided that an entrepreneur could set up an undertaking ( \u0434\u0443\u045c\u0430\u043d ) , in order to pursue business activities . The undertaking could have a legal personality .","LAW provided that an entrepreneur could set up an undertaking by submitting an application to the relevant municipal administrative body .","In accordance with section CARDINAL \u00a7 CARDINAL ( CARDINAL ) of that LAW , an undertaking would cease to exist if the above application had been withdrawn .","Section CARDINAL ( CARDINAL ) of LAW ( \u201c the LAW \u201d ) , as applicable at that time , provided that a decision given on an appeal was regarded as final .","DATE . Under section CARDINAL of the Act , an appeal on points of law and a request for reopening of the proceedings could not be lodged in respect of a final decision given in the enforcement proceedings .","LAW provided that the provisions of LAW applied , mutatis mutandis , to enforcement and security proceedings , unless otherwise provided for by law .","Under section CARDINAL ( CARDINAL ) , an enforceable court decision and a court settlement were regarded as an enforcement order .","DATE . LAW ( CARDINAL ) of the LAW provided that enforcement might be granted at the request of a person not indicated as a creditor in an enforcement order only if that person proved , by a public or otherwise legally certified order , that the claim had been transferred to him or her . Should that be impossible , the transfer of the claim was to be proved by a final decision given in civil proceedings .","LAW of LAW ( \u201c the DATE LAW ) , which was in force at the material time , provided that a decision became final when an appeal could no longer be lodged against it .","DATE . In accordance with section CARDINAL ( CARDINAL ) of LAW , in case of substantial procedural flaws , ORG quashed the first- and the second - instance decision or the second - instance decision only and referred the case back for reconsideration .","Section CARDINAL of the DATE Act provided that where the substantive law had been applied incorrectly , ORG upheld the appeal on points of law and overturned the impugned decision . In cases where the facts were erroneously established because of the incorrect application of the substantive law and where there were no grounds for overturning the impugned decision , ORG upheld the appeal on points of law and referred the case back for fresh consideration .","In accordance with section CARDINAL of the CARDINAL Act , the public prosecutor could submit , within DATE , a request for the protection of legality in respect of a final decision . When the request was lodged in respect of a second - instance decision , this term started to run from the date on which the last party was served with the decision . Where the parties concerned had lodged an appeal on points of law against the second - instance decision , the public prosecutor could submit a request for the protection of legality in respect of that decision within DATE of the date of service of the appeal on points of law .","In accordance with section CARDINAL , a legality review request could be lodged either in respect of a substantial procedural flaw or an incorrect application of the substantive law . It could not be lodged where the impugned decision went beyond the scope of the claim or where the facts had been erroneously or incompletely established .","ORG ) of the LAW provided , inter alia , that sections CARDINAL , CARDINAL to CARDINAL and CARDINAL to CARDINAL applied , mutatis mutandis , to proceedings concerning a legality review request .","The Act , which repealed LAW , does not contain any provisions concerning the legality review proceedings ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22470","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2002,"docname":"SVED and OTHERS v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicants , PERSON , PERSON , PERSON and Mr PERSON , are NORP nationals , who were born in DATE , DATE , DATE and DATE respectively and live in GPE , GPE . They are the widow and the CARDINAL children of the late Mr Rune Sved .","They are represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .","The facts of the case , as submitted by the applicants , may be summarised as follows .","On DATE Mr PERSON , who was a farmer , applied for a subsidy to give up greenhouse farming . On DATE ORG ( maatalousyritt\u00e4jien el\u00e4kelaitos , lantbruksf\u00f6retagarnas pensionsanstalt ) decided to grant PERSON a subsidy of ORG ( MONEY ) on condition that the greenhouses were demolished or otherwise permanently taken out of production and the relevant area adjusted to the surrounding landscape . Written information when these measures had been carried out was requested as a condition of payment .","Mr PERSON died on DATE without knowing about the decision .","On DATE PERSON widow requested that the subsidy be paid to his estate . On DATE ORG refused to pay the subsidy as the greenhouses had not been demolished before the death of Mr Rune Sved . The applicants appealed to ORG ( el\u00e4kelautakunta , pensionsn\u00e4mnden ) , requesting payment of the subsidy . ORG decided , on DATE , that the subsidy could not be paid to PERSON estate since he had not demolished the greenhouses himself during his DATE .","On DATE , the applicants appealed to ORG ( vakuutusoikeus , f\u00f6rs\u00e4kringsdomstolen ) , contending that the ORG \u2019s decision was unreasonable as Mr PERSON had not been able to demolish the greenhouses as he had not even known about the decision before he died . They noted that they had no other choice than to continue the greenhouse production or to let the greenhouses to another farmer if the court \u2019s decision was not favourable to them . It appears from the statement of appeal that the greenhouses had not been demolished by DATE .","On DATE ORG upheld the ORG \u2019s decision .","According to LAW , subsections CARDINAL and CARDINAL , of the Act on Subsidy for ORG and ORG ( laki kasvihuonetuotannon ja omenanviljelyn lopettamistuesta , lag om st\u00f6d f\u00f6r nedl\u00e4ggning av v\u00e4xthusproduktion och \u00e4ppelodling ) , a subsidy shall be paid to an applicant on condition that his greenhouses are permanently demolished or otherwise taken out of greenhouse production and the relevant areas adjusted to the landscape .","According to LAW above - mentioned LAW , the subsidy can only be granted if the applicant has been farming for a minimum period of DATE immediately before giving up this activity , and on condition that commercial greenhouse farming has been carried out in an area exceeding QUANTITY and the greenhouse farmer has been insured for this activity as a private entrepreneur within the meaning of the Act on Pensions for ORG ( yritt\u00e4jien el\u00e4kelaki , lag om pension f\u00f6r f\u00f6retagare ) or as a farmer within the meaning of LAW ( maatalousyritt\u00e4jien el\u00e4kelaki , lag om pension f\u00f6r lantbruksf\u00f6retagare ) .","According to LAW of the above - mentioned LAW , the subsidy is paid after the greenhouse production or apple farming has ceased ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-60344","languageisocode":"ENG","respondent":"LTU","branch":"CHAMBER","date":2002,"docname":"CASE OF BUTKEVICIUS v. LITHUANIA","importance":1,"conclusion":"Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 6-2;Pecuniary damage - request rejected;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Nicolas Bratza","text":["The applicant was the Minister of Defence and a Member of the Seimas ( ORG ) from DATE .","On DATE the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing MONEY ( ORG ) from ORG . The latter , a senior executive of a troubled oil company ( hereinafter referred to as \u201c the company \u201d ) , had previously informed the intelligence authorities that the applicant had requested CARDINAL ORG for his assistance in obtaining the discontinuance of criminal proceedings concerning the company \u2019s vast debts . For slightly TIME the applicant was questioned in the hotel lobby . His explanations were recorded and he was allowed to leave the hotel .","On DATE the Prosecutor General requested the Seimas to permit the institution of criminal proceedings against the applicant . On DATE the ORG agreed . On DATE criminal proceedings were instituted . On DATE the applicant was charged with attempting to cheat ( obtaining property by deception ) .","On DATE the Prosecutor General applied to the Seimas for permission to detain the applicant on remand . On DATE permission was given . On DATE a prosecutor requested ORG to order the applicant \u2019s detention on remand . Also DATE the applicant was brought before a judge of the FAC who issued a warrant for the applicant \u2019s arrest on the grounds that he might obstruct the establishment of the truth in the case , inter alia , by exploiting the media and influencing witnesses . The applicant was duly detained .","On DATE the judge extended the term of the applicant \u2019s detention on remand until DATE in the presence of the parties for the same reasons as before . On CARDINAL , DATE and DATE the applicant appealed against his detention on remand . He requested a hearing . On DATE a judge of ORG dismissed the applicant \u2019s appeal without hearing the parties .","From DATE to CARDINAL DATE the applicant and his counsel had access to the case - file . On DATE the applicant requested the prosecutor to discontinue the proceedings . On a number of occasions he also requested the prosecutor to vary the remand . These requests were rejected .","On DATE a judge of the Vilnius City Second District Court extended the term of the applicant \u2019s detention on remand until DATE . On DATE the applicant appealed . On DATE ORG informed him that no appeal lay against that decision .","On DATE the Prosecutor General confirmed the bill of indictment , which was transmitted to ORG .","DATE the applicant submitted numerous applications to courts , the prison administration , the ORG and the LAW , alleging that his detention had been unlawful . On DATE the ORG concluded that from DATE the applicant had been held in detention unlawfully .","On DATE ORG committed the applicant for trial . The court also decided that the applicant \u2019s detention on remand \u201c shall remain unchanged \u201d . No term for that detention was specified .","On DATE ORG adjourned the case and ordered the prosecuting authorities to submit new evidence . In the same decision the court also decided that the applicant \u2019s detention on remand \u201c shall remain unchanged \u201d . No term or grounds for this were specified . The applicant \u2019s counsel was present at the hearing . On DATE the applicant appealed against the decision . On CARDINAL DATE the applicant submitted a further appeal against the decision of DATE .","On DATE ORG dismissed this appeal in so far as it concerned the decision to require the prosecution to submit new evidence . ORG held that no appeal lay against the decision of DATE in so far as it concerned the applicant \u2019s detention . The applicant and his counsel were present at the appellate hearing .","On DATE the trial before ORG was resumed . On DATE ORG extended the term of the applicant \u2019s detention until DATE . On DATE the detention was extended until DATE . The court referred to the strength of the evidence in the case - file and the likelihood of the applicant influencing witnesses , warranting his further remand in custody . Defence counsel was present at the hearings . The applicant \u2019s appeals against the decisions of CARDINAL and DATE were dismissed by ORG on DATE and CARDINAL DATE respectively . The applicant \u2019s counsel had been present at the appellate hearings .","On DATE and DATE , DATE , DATE and DATE , ORG rejected the applicant \u2019s requests to lift the remand in custody . His defence counsel was present at the hearings .","On DATE ORG found the applicant guilty of attempting to obtain property by deception . The court rejected the applicant \u2019s defence that he had been incited to commit an offence as a result of the conspiracy between PERSON and the security intelligence authorities . The court found that the applicant had himself requested PERSON to contact him , and that the applicant had demanded money in return for him using his authority over certain prosecutors with a view to discontinuing the criminal case involving ORG \u2019s indebted company . ORG found that the applicant had thereby intended to cheat . The applicant was sentenced to DATE and CARDINAL months\u2019 imprisonment and fined CARDINAL NORP litai ( LTL ) . CARDINAL of his property was confiscated . The applicant and his counsel were present before the first instance court .","The applicant appealed . On DATE ORG rejected the appeal , finding no procedural irregularities regarding the investigation and trial . The applicant and his counsel were present at the appellate hearing .","The applicant lodged a cassation appeal . On CARDINAL DATE ORG rejected it , finding that the lower courts had properly decided the case . The court mentioned inter alia that it had no competence to examine the applicant \u2019s allegations about the unlawfulness of his detention on remand . The applicant and his counsel were present before ORG .","On an unspecified date , an impeachment procedure was initiated against the applicant in the Seimas . On DATE the ORG refused to impeach the applicant or annul his mandate as a Member of ORG ( \u201c MP \u201d ) .","On DATE the Vilnius City Third ORG ordered the applicant \u2019s release on licence . He was released on DATE .","< Translations are given >","On DATE an article entitled \u201c MP \u2019s whitewash looks hogwash , says prosecutor \u201d was published in the biggest national DATE \u201c Lietuvos Rytas \u201d :","\u201c The Prosecutor General confirmed that [ he had ] enough sound evidence of the guilt of PERSON . \u201d","On DATE an article entitled \u201c The Chairman of the Seimas does not doubt PERSON guilt \u201d was published in \u201c GPE \u201d :","\u201c When asked whether or not he doubts that PERSON accepted a bribe , the Chairman of the Seimas said : \u2018 on the basis of the material in my possession I entertain no doubt.\u2019 \u201d","The Prosecutor General was quoted in an article entitled \u201c A. Butkevi\u010dius prepares for battle and prison \u201d of CARDINAL DATE in the DATE \u201c LOC :","\u201c I qualify the offence as an attempt to cheat ... . \u201d","The Chairman of the ORG , quoted in an article entitled \u201c A. Butkevi\u010dius will be prosecuted \u201d of CARDINAL DATE in \u201c LANGUAGE Rytas \u201d :","\u201c CARDINAL or CARDINAL facts were and are convincing . [ The applicant ] took the money while promising criminal services . \u201d","The Chairman of the Seimas , in an article entitled \u201c A. Butkevi\u010dius \u2019s lawyers tag the bribery case as political \u201d of DATE in \u201c GPE \u201d , was quoted as saying that \u201c FAC [ parties ] co - ordinate the defence of the bribetaker \u201d and that these parties try to protract the proceedings and artificially \u201c victimise \u201d the applicant .","The Code of Criminal Procedure ( ORG proceso kodeksas ) :","\u201c No one shall be arrested or detained save by virtue of a decision of a court or judge . \u201d","LAW and LAW CARDINAL of the Code provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator , investigator , prosecutor or court .","\u201c Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ... .","The grounds for detention on remand shall be the reasoned suspicion that the accused will :","( CARDINAL ) abscond from the investigation and trial ;","( CARDINAL ) NORP obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;","( CARDINAL ) NORP commit new offences ... whilst suspected of having committed crimes provided in GPE ... [ CARDINAL , cheating ] of LAW ... . \u201d","\u201c ... the arrested person shall be brought before a judge within not more than CARDINAL hours ... . The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the specific term of detention , or vary or revoke the remand ... .","After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . \u201d","The amended LAW in force since DATE ) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person , unless the judge decides otherwise . The amended provision also provides that the court should extend the detention on remand before its expiry .","\u201c For the purpose of extending the term of detention on remand , a judge ... must convene a hearing to which defence counsel and a prosecutor and , if necessary , the detainee shall be called . The judge decides whether or not to extend the term of detention on remand . ... . \u201d","The LAW in force since DATE makes obligatory the attendance of the detainee at the remand hearings .","\u201c An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the arrest . ... . With a view to examining the appeal , there may be convened a hearing to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .","The decision taken by the judge at appellate instance is final and can not be the subject of a cassation appeal .","A further appeal shall be determined when examining the extension of the term of the detention on remand . \u201d","The present LAW in force since DATE ) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre - trial investigation and trial , in the presence of the detainee and his counsel , or only his counsel .","\u201c The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . \u201d","Since DATE this period is no longer relevant for remand decisions .","\u201c A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine : ...","CARDINAL ) NORP whether the remand has been selected appropriately ; ... . \u201d","\u201c After having decided that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine : ...","CARDINAL ) NORP the remand in respect of the accused ; ... . \u201d","\u201c The defendant has the right to : ... ;","CARDINAL ) NORP submit requests ; ...","CARDINAL ) NORP appeal against the judgment and decisions of a court . \u201d","\u201c In the course of the trial , a court may decide to order , vary or revoke a remand in respect of the defendant . \u201d","\u201c Decisions of courts ... ordering , varying or revoking a remand ... can not be the subject of appeal ... . \u201d","Pursuant to the general provision of LAW , a first instance decision was not effective pending the time - limit for an appeal against that decision or during the appeal proceedings . Only those decisions against which no appeal was possible , including remand decisions under the former Article CARDINAL \u00a7 CARDINAL , became effective and were executed on the date when they were taken . The present LAW ( version in force from DATE ) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken , regardless of the fact that an appeal is possible against any such decision under the amended LAW since DATE , see above ) .","Article CARDINAL \u00a7 CARDINAL of the LAW reads :","\u201c A person shall be considered innocent until proved guilty in accordance with the law by a final judgment of the court . \u201d","LAW provides :","\u201c No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with the law . \u201d"],"violated_articles":["5","6"],"violated_paragraphs":["5-1","5-4","6-2"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61958","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2004,"docname":"CASE OF CEVIZOVIC v. GERMANY","importance":3,"conclusion":"Preliminary objection rejected (estoppel);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings","judges":"Ireneu Cabral Barreto","text":["The applicant , PERSON , is a NORP national born in DATE . When lodging his application , he was detained in GPE , GPE . He is presently living in PERSON , GPE .","On DATE the applicant was arrested in PERSON . On DATE the ORG issued a warrant of arrest against the applicant on the ground that he was strongly suspected of having committed , with others , robbery connected with attempted murder .","On DATE ORG charged the applicant with attempted murder , aggravated robbery , grievous physical injury and unauthorised carrying of weapons .","On DATE ORG admitted the indictment without modifications and decided to open the trial against the applicant and CARDINAL other accused . The trial started on DATE and took place on DATE with an average duration of TIME . On CARDINAL DATE a lay assessor fell ill . As the additional lay assessor who was supposed to replace her had also fallen sick earlier on , the trial had to begin anew .","On DATE ORG upheld the arrest warrant against the applicant . It found that irrespective of the delay occasioned by the FAC illness , the applicant \u2019s continued detention was proportionate given the serious nature of the crimes he was accused of .","On DATE the trial reopened with CARDINAL additional lay assessors .","On DATE ORG rejected the applicant \u2019s appeal against ORG decision to uphold the arrest warrant .","On DATE ORG dismissed the applicant \u2019s renewed request to suspend the warrant of arrest of DATE on the ground that the applicant remained under strong suspicion of having committed the crimes that he was accused of . On DATE ORG , upon the applicant \u2019s appeal , reconsidered and confirmed its decision of DATE . It held that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence , which required further investigations during the trial , and the illness of a lay assessor as well as the temporary illness of the presiding judge . The strong suspicion that the applicant had committed the serious crimes he was accused of had not been invalidated during the trial . As the applicant \u2019s partner and son lived in GPE , the applicant was also likely to abscond if released .","On DATE ORG confirmed the decision of the lower court , stating that although the applicant had at that point already been in custody for DATE , this did not justify his release .","On DATE ORG refused to entertain the applicant \u2019s constitutional complaint .","On DATE ORG dismissed the applicant \u2019s new request to suspend the warrant of arrest of DATE on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension . It found that if released , the applicant was very likely to abscond , given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged . ORG noted that the applicant was residing illegally in GPE and that an expulsion order had been issued against him . The length of the applicant \u2019s detention on remand did not compare to the risk mentioned above . ORG included a detailed account of the trial , explaining the continued conduct of the proceedings , which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify . Furthermore , the applicant and his co - accused had , often later than necessary , filed numerous motions for evidence to be taken . It observed that at the present time , it was not possible to disjoin the applicant \u2019s case from those of the other accused , as they were accused of committing the offences jointly .","On DATE , following the applicant \u2019s appeal , ORG confirmed its original decision . It pointed out that the prolonged investigations by way of letters rogatory in GPE and the summoning of witnesses from abroad , which were necessitated by the belated alibi produced by CARDINAL of the applicant \u2019s co - accused , did not warrant the applicant \u2019s release .","On DATE ORG confirmed this decision .","On DATE ORG refused to entertain the applicant \u2019s constitutional complaint .","On DATE ORG dismissed the applicant \u2019s further request to suspend the arrest warrant on the grounds that contrary to his allegations , the suspicion persisted that he had committed the crimes he was accused of and was still likely to abscond if released , especially considering the high prison sentence he risked incurring if found guilty according to the indictment .","On DATE the ORG pronounced its judgment after having held an average of CARDINAL hearings per month with an average duration of CARDINAL and a half hours each . It convicted the applicant of attempted murder , aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to DATE and CARDINAL months\u2019 imprisonment . In fixing the length of the applicant \u2019s sentence , ORG took into consideration the inordinate length of his detention and of the criminal proceedings , in particular the delay occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings .","On DATE , the applicant appealed against ORG judgment . In the negotiations that followed between the applicant \u2019s legal counsel and ORG , the latter eventually consented to the applicant \u2019s expulsion to his country of origin in lieu of serving his prison sentence in GPE . In exchange for this , and due to the increasing length of his detention on remand , which would have continued during the appeal proceedings , the applicant agreed to withdraw his appeal .","On DATE , the applicant withdrew his appeal . On DATE ORG made an order for costs following the applicant \u2019s withdrawal of the appeal . On DATE , ORG suspended the further execution of the applicant \u2019s prison sentence and agreed to his expulsion to GPE . A new arrest warrant was issued to the effect that , upon returning to GPE before DATE , the applicant would be arrested and imprisoned instantly in order to complete his prison sentence . On DATE , the applicant was expelled to GPE ."],"violated_articles":["5","6"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57902","languageisocode":"ENG","respondent":"NLD","branch":"CHAMBER","date":1994,"docname":"CASE OF PELLADOAH v. THE NETHERLANDS","importance":3,"conclusion":"Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient","judges":"R. Pekkanen","text":["ORG Mr PERSON is a NORP national born in DATE and resident in CARDINAL Bornes , GPE .","ORG On DATE Mr Pelladoah was arrested at FAC after customs officials found QUANTITY of heroin , some of it mixed with methaqualone ( a synthetic psychotropic drug ) , in a suitcase which he was carrying .","He was charged primarily with bringing into the country , with or without criminal intent as the case might be , a quantity of a substance containing heroin . This amounts to an indictable offence ( misdrijf ) carrying a maximum penalty of CARDINAL years\u2019 imprisonment ( gevangenisstraf ) and a fine of NLG CARDINAL if committed with criminal intent ( opzettelijk - section CARDINAL ( CARDINAL ) ( A ) and section CARDINAL ( CARDINAL ) of LAW ) but a summary offence ( overtreding ) carrying a maximum penalty of DATE months\u2019 detention ( hechtenis ) and a fine of NLG CARDINAL if committed without such intent ( section CARDINAL ( CARDINAL ) ( A ) and section CARDINAL ( CARDINAL ) of LAW ) . In the alternative , he was charged with possession ( aanwezig hebben ) of such a substance , with or without criminal intent as the case might be , which is an indictable offence carrying a maximum penalty of DATE imprisonment and a fine of NLG CARDINAL if committed with criminal intent ( section CARDINAL ( CARDINAL ) ( C ) and section CARDINAL ( CARDINAL ) of LAW ) , but a summary offence carrying a maximum of CARDINAL months\u2019 detention and a fine of NLG CARDINAL if criminal intent is absent ( section CARDINAL ( CARDINAL ) ( C ) and section CARDINAL ( CARDINAL ) of LAW ) .","ORG On DATE Mr Pelladoah was tried by ORG ( arrondissementsrechtbank ) ; he admitted having \" taken a suitcase off the luggage conveyor ... [ which , when examined by customs , ] turned out to contain a large quantity of a substance subsequently found to be heroin \" .","ORG gave judgment on CARDINAL DATE , acquitting Mr Pelladoah of bringing a quantity of heroin into the country with criminal intent , but finding him guilty of doing so without criminal intent ; it sentenced him to CARDINAL months\u2019 detention . By the same judgment it ordered his immediate release as he had already spent that length of time in detention on remand .","CARDINAL ; ORG Both the prosecution and the defence appealed against ORG judgment to ORG . The applicant was expelled from the GPE pursuant to LAW ( Vreemdelingenwet ) before the appeals were heard .","ORG held a hearing in the case on DATE . The official record of the hearing states that PERSON was declared to be in default and contains the following passage :","\" Mr PERSON [ counsel for Mr Pelladoah ] declares - in essence - : ... I request the court to allow me to conduct the defence , as my client , in view of his place of residence , is unable to appear at the hearing . \"","ORG refused this request since \" no compelling reason ( klemmende reden ) had become apparent \" to allow it .","Witnesses were heard ; the prosecution was allowed to question them but PERSON lawyer was not .","ORG gave judgment on DATE . In view of information to the effect that an extensive investigation into the drugs trade was under way in GPE , in the course of which PERSON had made statements to the NORP authorities , ORG held that the case had not been fully examined and ordered the case to be reheard . A new summons was issued for PERSON to appear .","ORG The second hearing of ORG in the case was held on DATE . Since CARDINAL of the CARDINAL judges had not been present at the first hearing , the examination of the case was commenced anew .","This time PERSON lawyer asked to be allowed to represent his client pursuant to LAW paragraph CARDINAL below ) as regarded the alternative charge .","This request was refused because \" it had not been stated , nor did it appear , that [ the lawyer ] had been specifically authorised by the accused to represent him ; moreover , the primary charge , for which representation was not allowed , fell to be examined first \" .","CARDINAL of the witnesses who had been heard at the previous hearing was heard again ; the prosecution was granted the opportunity to question him and make observations as to his statements but again PERSON lawyer was not .","The prosecution asked that Mr Pelladoah be sentenced to DATE imprisonment .","ORG then suspended the hearing until DATE so as to enable the prosecution to have relevant parts of the report of the NORP authorities translated into NORP .","ORG The hearing was continued on DATE . The lawyer asked to be allowed to represent PERSON at the hearing and submitted a written declaration authorising him to do so .","ORG again refused to accede to the lawyer \u2019s request on the ground that \" the primary charge , which carried a sentence of imprisonment and for which , consequently , representation [ was ] not allowed , fell to be examined first \" .","ORG On DATE ORG delivered a default judgment . It found PERSON guilty on the primary charge , committed with criminal intent , and sentenced him to CARDINAL years\u2019 imprisonment . According to its judgment , it based the sentence on \" the seriousness of the act concerned and the circumstances in which it was committed , and the person of the accused \" ; it drew attention to the quantity of the heroin - containing substance brought into the country and observed that PERSON had made unlawful use of his diplomatic passport .","ORG Through his lawyer , PERSON filed an appeal on points of law to ORG ( PERSON ) .","In his grounds of appeal ( cassatiemiddelen ) he complained essentially of the following : firstly , that at its first hearing on CARDINAL DATE ORG had erred in not considering the reason for the applicant \u2019s failure to appear - the trouble and expense of a journey from GPE to the GPE - to be sufficiently \" compelling \" ; secondly , that representation by the lawyer should have been allowed because even if criminal intent was proven the primary charge did not concern an indictable offence which carried a sentence of imprisonment .","ORG gave judgment on DATE .","As to the applicant \u2019s first complaint , it observed that on DATE , a different chamber of ORG had begun a completely new examination of the case and that the judgment of that court had therefore not been based on the hearing of CARDINAL DATE . It held that a complaint concerning the refusal of a request made at the latter hearing could therefore not entail the nullity of that judgment .","It also rejected the applicant \u2019s second complaint , citing the legal provision according to which the primary charge , in case of criminal intent , constituted an indictable offence carrying a term of imprisonment .","ORG In general , the accused - if he is not a juvenile ( section CARDINAL h of LAW ) - is not under an obligation to appear at the hearing .","The court must examine of its own motion the validity of the summons ( geldigheid der dagvaarding - section CARDINAL ORG ) . If , in spite of having been properly summoned , the accused does not appear at the hearing , the court will declare him to be in default ( verstek verlenen ) and proceed with the case in his absence . This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be deferred ( see , inter alia , the judgment of ORG of DATE , GPE ( PERSON , GPE Law Reports ) DATE , CARDINAL ) or submits his defence in writing ( see the judgment of ORG of DATE , GPE DATE , CARDINAL ) and even if the accused can not be blamed for his absence ( see , inter alia , the judgments of ORG of DATE , GPE DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) . The court has the power to order the accused to appear or to be produced before it by the police ( section CARDINAL ORG ) but it is rarely made use of unless the accused is a juvenile .","ORG An accused who has been convicted in his absence by the first - instance court may file an objection ( verzet - section CARDINAL ( CARDINAL ) ORG ) ; this is an ordinary legal remedy in GPE law . Such an objection entitles the accused to a full retrial by the same court ( section CARDINAL ORG ) .","An objection may not be filed by an accused who has , or has had , the opportunity to appeal to a higher court with jurisdiction as to both fact and law ( hoger beroep - section CARDINAL ( CARDINAL ) ORG ) . This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal , i.e. where the sentence is nothing more serious than a small fine or where a summary offence has been dealt with in first instance by ORG .","It follows from section CARDINAL ( CARDINAL ) ORG that no objection may be filed against a default judgment given on appeal .","ORG In certain cases the accused may be represented in his absence . In cases which are dealt with at first instance by ORG , this possibility exists if the act with which the accused is charged does not carry a prison sentence . However , the representative must be a lawyer who must state that he has been specifically empowered to act as such ( bepaaldelijk daartoe gevolmachtigd - section CARDINAL ORG ) .","At the hearing the procedural position of the representative is that of the accused himself , i.e. - even if the representative is a lawyer - not that of counsel ( see , inter alia , the judgment of ORG of DATE , GPE DATE , CARDINAL ) . This means that like the accused , he may be cross - examined by the court and the prosecution and his statements may be used as evidence ( see the judgment of ORG of DATE , GPE DATE , CARDINAL ) ; he may also be assisted by a lawyer - or another lawyer - as counsel .","If representation is allowed at first instance before ORG , it is also allowed on appeal before ORG ( section CARDINAL ORG ) .","ORG The question - which was in dispute among learned writers - whether the defendant , having been declared in default , is entitled to have his defence conducted for him by counsel was decided by ORG in its judgment of DATE ( GPE DATE , CARDINAL ) . Although the Procurator General ( procureur - generaal ) had suggested an answer in the affirmative , ORG came to the opposite conclusion . It reasoned that , were such an entitlement to be recognised , trial in absentia would take on an adversarial character incompatible with the basic idea of LAW that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence . ORG went on to hold that it was true that since the introduction of LAW the right to file an objection had been considerably curtailed , but pointed out that in so doing the legislature had not changed the character of trial in absentia . In conclusion , no section of LAW nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel .","ORG has accepted , however , that a trial court may , at its discretion , allow counsel to speak in defence of an accused who has been declared in default . This discretion is quite frequently made use of . ORG strictly maintains the rule that if in such cases a trial court allows counsel to speak at all , it must afford him all rights available to the defence . It may not impose any limitations as to what subjects he may address ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) ; it may not deny him the right to speak last ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) ; if there are witnesses , counsel must be permitted to cross - examine them ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) .","ORG In principle ORG has held to its rule ( see paragraph CARDINAL above ) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel , but since its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) it is its established case - law that there is CARDINAL exception : in that judgment , it ruled , on the basis of , inter alia , LAW , that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that \" compelling reasons \" prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case . ORG has accepted the corollary that counsel should in any case , if he so requests , be allowed the opportunity to argue that such reasons exist ( judgments of DATE , GPE DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) .","ORG , in its judgment of DATE ( GPE DATE , CARDINAL ) , has held that a \" compelling reason \" exists not only if it is impossible for the accused to appear , but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he can not reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until DATE when he will be able to attend or that his counsel will be allowed to conduct the defence .","In its judgment of DATE , DD ( ORG , Offence and Offender ) CARDINAL , PERSON . PERSON ( case - law supplement to the Nederlands GPE , ORG , DATE , no . CARDINAL , p. CARDINAL ) , ORG has recognised that the expulsion of the accused pursuant to LAW generally constitutes a \" compelling reason \" for his absence at the trial .","ORG If counsel wishes to act for the defence in the absence of his client , he should expressly ask for permission to do so . His presence alone is not sufficient ( see , inter alia , the judgments of ORG of DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , DD CARDINAL ) . Neither is a request made by counsel for the hearing to be deferred , as was held in , inter alia , ORG judgment of DATE , DD CARDINAL ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-115323","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2012,"docname":"JENIK  v. AUSTRIA AND OTHER APPLICATIONS","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Steiner;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["NORP The applicant Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He is represented by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) are represented by their Agent , Ambassador PERSON , Head of ORG at ORG .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant is unemployed and has been receiving welfare benefits for himself and his CARDINAL children for DATE . Under LAW ( PERSON ) , he is entitled to DATE payments and , in addition , to certain extra allowances and non - cash benefits as specified by law and upon specific request .","On DATE the applicant filed a request with ORG , seeking temporary pecuniary assistance ( GPE ) in addition to the benefits already received , without specifying an amount . By an oral decision of the same day ORG granted him MONEY ( ORG ) .","On DATE ORG , at the applicant \u2019s request , provided him with a written copy of the above oral decision . The applicant , who was not satisfied with the amount granted , appealed on DATE .","On DATE ORG dismissed the applicant \u2019s appeal and lowered the amount to ORG CARDINAL.CARDINAL .","On DATE the applicant filed a complaint against this decision with ORG and asked for an oral hearing . He argued that ORG decision had been unlawful , in that ORG had not been competent to take the impugned decision , its decision was not sufficiently reasoned and it had not applied the provisions of ORG correctly . The authorities should have granted him a rent allowance equivalent to the full amount of rent paid by him , because rents were high in GPE and they had not objected to the applicant moving to a bigger apartment with his children .","On DATE ORG dismissed the applicant \u2019s complaint . It found that ORG had been competent to take the impugned decision and had decided properly on the applicant\u2019","In so far as the applicant had complained that he should have been entitled to full reimbursement of the rent paid by him , ORG found that , in accordance with the law , a rent allowance was linked to the specific size of an apartment , with a fixed maximum amount for certain sizes . Only in very special circumstances could a higher amount be granted . The applicant had , however , failed throughout the proceedings to give any specific reasons , corroborated by evidence , as to why he should receive a higher rent allowance . The mere indication that rents in GPE were high was not a sufficient argument within the meaning of LAW . With regard to the applicant \u2019s request for an oral hearing , ORG found that the present case concerned only questions of law which , in line with the ORG \u2019s case - law , did not necessitate a hearing , and accordingly dismissed the request .","On DATE the applicant filed a request with ORG , seeking an additional allowance from DATE , without specifying an amount .","On DATE ORG granted his request , awarding him EUR DATE . On DATE the applicant , who was not satisfied with the amount granted , appealed .","On DATE ORG granted the applicant \u2019s appeal and raised the amount to ORG .","On DATE the applicant filed a complaint with ORG against this decision and requested an oral hearing . He submitted the same arguments as in his complaint to ORG concerning his request of CARDINAL DATE .","On DATE ORG dismissed the applicant \u2019s complaint and his request for an oral hearing for the same reasons as in its decision of the same day relating to the applicant \u2019s request of CARDINAL DATE .","On DATE the applicant filed a request with ORG seeking an additional allowance from DATE , reimbursement of the costs incurred for the repair of his washing machine and the payment of several electricity , gas and rent bills ; this was granted by several decisions of ORG , including those of DATE , CARDINAL DATE and DATE .","On DATE ORG rejected the applicant \u2019s request to transfer jurisdiction to the superior authority , on the ground that ORG and ORG itself had already decided on the matter and had granted the requested benefits .","On DATE the applicant filed a complaint against this decision with ORG , together with an application alleging a breach of the administrative authorities\u2019 duty to decide ; he also requested legal aid and asked the court to hold a public hearing .","On DATE ORG ordered the applicant to provide further information about his complaint . The applicant complied on DATE .","On DATE ORG dismissed the applicant \u2019s complaint ; this decision was served on his counsel on CARDINAL DATE . ORG listed in detail the decisions taken by ORG and ORG between DATE and CARDINAL DATE in response to the numerous requests lodged by the applicant during this period , from which ORG had concluded that the applicant \u2019s request of DATE had been decided upon . They had , therefore , taken proper decisions , satisfying all the statutory requirements . In such a situation the applicant could not merely claim that CARDINAL of his requests had not been decided upon , but had to substantiate his allegations by referring to details . Since he had not done so , ORG had acted correctly in dismissing his request for transfer of jurisdiction . With regard to the applicant \u2019s request for an oral hearing , ORG found that the present case only concerned questions of law which , in line with the ORG \u2019s case - law , did not necessitate the holding of a hearing and therefore dismissed the request .","On DATE the applicant filed a request for additional allowances for cultural and education matters .","On DATE ORG dismissed the applicant \u2019s request of DATE .","On DATE ORG dismissed his appeal against this decision .","On DATE the applicant filed a complaint with ORG against ORG decision and requested legal aid .","On DATE ORG remitted the complaint to the applicant in order for procedural defects to be remedied . At the same time it dismissed the request for legal aid , finding that , in view of its caselaw , the complaint had no prospect of success . In view of the refusal of legal aid the applicant did not pursue the proceedings .","On DATE the applicant filed a request with ORG , seeking an additional allowance , amounting to ORG DATE for heating and electricity .","On DATE ORG dismissed his request , and on DATE ORG dismissed his appeal .","Having been granted legal aid , the applicant filed a complaint with ORG against that decision on DATE .","On DATE ORG dismissed the applicant \u2019s complaint .","On DATE the applicant filed a request for an additional allowance for heating and electricity , amounting to ORG CARDINAL.CARDINAL .","On DATE ORG dismissed his request , and , on DATE , ORG dismissed his appeal .","Having been granted legal aid , the applicant filed a complaint against this decision with ORG on DATE .","On DATE ORG dismissed the applicant \u2019s complaint .","On DATE the applicant filed a request for an additional allowance for heating and electricity , amounting to ORG CARDINAL.CARDINAL per month .","On DATE ORG dismissed his request , and , on DATE , ORG dismissed his appeal .","On DATE ORG dismissed the applicant \u2019s request for legal aid , considering that , in view of its case - law , the complaint had no prospect of success .","On DATE , having been granted legal aid , the applicant filed a complaint with ORG against ORG decision .","On DATE ORG dismissed the complaint . That decision was served on the applicant \u2019s counsel on CARDINAL DATE .","On DATE the applicant filed a request with ORG , seeking an additional allowance for the period from DATE until DATE .","On DATE ORG granted the applicant \u2019s request of DATE to transfer jurisdiction to the superior authority on the ground of ORG failure to decide ; being competent to decide the matter itself , it dismissed the applicant \u2019s request by a decision of DATE .","On DATE , having been granted legal aid , the applicant filed a complaint with ORG against this decision and asked the court to hold a public hearing . He argued that the authority had incorrectly applied the law and had not properly reasoned its decision , and that the facts of the case needed to be supplemented , since the calculation of his resources had taken into account alimony payments for his son PERSON from his former wife which he had not actually received . This point therefore needed to be further developed .","On DATE ORG dismissed the applicant \u2019s complaint without having held a hearing . ORG found that the authority had properly reasoned its decision and had applied correctly the relevant provisions of ORG . With regard to the applicant \u2019s argument that the authority should not have taken account of alimony payments from his former wife for his son PERSON , ORG found that , even if it accepted the applicant \u2019s position , namely that he had not received payments to which he had been entitled and that they should not therefore be taken into account when assessing his income , that income was still above the statutory limit ( ORG ) , so that he was not entitled to an additional allowance . Lastly , referring to the ORG \u2019s case - law , ORG found that in the present case it had only to deal with questions of law which could adequately be resolved on the basis of the case file and the parties\u2019 written observations , and therefore dismissed the request for a hearing .","On DATE the applicant filed a request with ORG , seeking an additional allowance for heating costs from DATE .","On DATE ORG granted the applicant \u2019s request of DATE to transfer jurisdiction to the superior authority on account of ORG failure to decide , and at the same time granted an additional allowance amounting to CARDINAL NORP shillings ( ORG ) .","On DATE , having been granted legal aid , the applicant filed a complaint with ORG against that decision .","On DATE ORG dismissed the applicant \u2019s complaint . That decision was served on the applicant \u2019s counsel on CARDINAL DATE .","On DATE and DATE the applicant filed requests for reimbursement of the expenses incurred in the purchase of a DATE tree ( EUR CARDINAL ) and an NORP wreath ( PERSON \u2013 EUR CARDINAL.CARDINAL ) .","On DATE ORG dismissed these requests , finding that as this kind of expense was already covered by the DATE payment received by the applicant , additional grants could not be made .","On DATE ORG dismissed the applicant \u2019s appeal against this decision , but corrected the first instance \u2019s decision to the effect that the applicant \u2019s requests were rejected . It did not hold a hearing .","On DATE ORG dismissed the applicant \u2019s request for legal aid of DATE , finding that , in view of its case - law on the matter , the complaint had no prospect of success .","DATE . On DATE ORG granted the applicant legal aid .","On DATE the applicant filed a complaint with ORG ; on DATE he filed a complaint with ORG .","On DATE ORG declined to deal with the complaint , as did ORG on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85241","languageisocode":"ENG","respondent":"CZE","branch":"ADMISSIBILITY","date":2008,"docname":"MORAVIA SHOP INVEST, S.R.O. v. THE CZECH REPUBLIC","importance":4,"conclusion":"Inadmissible","judges":"Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych","text":["The applicant , ORG , ORG . , is a private company incorporated under NORP law with its head office in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr V.A. Schorm , from ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant company instituted planning proceedings ( \u00fazemn\u00ed \u0159\u00edzen\u00ed ) , seeking the delivery of a planning decision on the location of a commercial building .","By a public notice ( ve\u0159ejn\u00e1 vyhl\u00e1\u0161ka ) of DATE ORG announced the commencement of the planning proceedings , but suspended them by a public notice of DATE until it would be provided with a final judgment of ORG ( m\u011bstsk\u00fd soud ) relating to the ownership title to some of the real estates involved in the planning proceedings . This public notice was put on the notice board on DATE .","On DATE the applicant company filed a complaint alleging inactivity on the part of ORG , pursuant to LAW no . CARDINAL\/CARDINAL on ORG which provided for measures against inactivity of administrative authorities . On DATE ORG ( magistr\u00e1t m\u011bsta ) dismissed the applicant company \u2019s complaint , sharing the opinion of ORG that the planning proceedings could be resumed after the judicial proceedings would be terminated upon a final judgment . This decision was notified to the applicant company \u2019s representative on DATE .","On DATE ORG rejected the applicant company \u2019s request for review of the decision of DATE pursuant to LAW no . ORG which provided for review of a decision outside the formal appeal procedure ( p\u0159ezkoum\u00e1n\u00ed rozhodnut\u00ed mimo odvolac\u00ed \u0159\u00edzen\u00ed ) .","On DATE the applicant company lodged a constitutional appeal ( \u00fastavn\u00ed st\u00ed\u017enost ) in which it complained , under Articles CARDINAL and CARDINAL of LAW ( Listina z\u00e1kladn\u00edch pr\u00e1v a svobod ) and LAW , of the inactivity of the administrative authorities as well as ORG decision of DATE .","In a decision of DATE , served on the applicant company \u2019s lawyer on DATE , ORG dismissed the applicant \u2019s constitutional appeal as having been filed outside the DATE statutory time - limit provided for in section CARDINAL(CARDINAL ) of LAW finding that the company \u2019s request for review LAW no . ORG did not constitute a remedy for the purpose of section CARDINAL(CARDINAL ) . Accordingly , the time - limit laid down for introducing a constitutional appeal had started running on DATE , on the date of the notification of ORG decision of DATE to the applicant company \u2019s representative , and had expired on DATE .","ORG added that the constitutional appeal had been filed outside the time - limit also in respect of the applicant company \u2019s request to quash ORG decision of DATE .","On DATE ORG issued , in favour of a third private company , a planning decision on the location of a construction partly situated on the lands involved in the planning proceedings initiated by the applicant company in DATE . The latter appealed , but on DATE ORG upheld the planning decision .","On DATE , a private company incorporated under NORP law , instituted proceedings against the applicant company seeking to determine the title to the real estates involved in the planning proceedings instituted by the applicant company in DATE .","On DATE ORG found that PERSON was the owner of these real estates . ORG upheld this judgment on DATE .","The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG \u2019s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , \u00a7 \u00a7 CARDINAL - CARDINAL , DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22974","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"BLAND v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Nicolas Bratza","text":["The applicant , PERSON , is a GPE national , who was born on DATE and lives in PERSON , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant applied to ORG for a retirement pension , but was informed , by a letter dated DATE , that the ORG would not consider his claim until DATE before his CARDINAL birthday . At present , women in GPE become eligible for a State pension at DATE , whereas men are not eligible until CARDINAL .","In their ORG , the ORG submitted that the applicant received a total of GBP CARDINAL per week in ORG benefits , including income support , disability living allowance and invalid care allowance . They claimed that the applicant would be in an identical financial position if he were a woman , the only difference being that part of the money paid to him by the ORG would be paid in the form of retirement pension rather than income support .","The applicant has not denied the ORG \u2019s account of his income . He claims , however , that if he were in receipt of ORG pension he would in addition be entitled to other financial benefits , such as a bus pass and discounts in shops , restaurants and hairdressers ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69790","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2005,"docname":"CASE OF RYTSAREV v. RUSSIA","importance":3,"conclusion":"Preliminary objection allowed (victim)","judges":"","text":["The applicant was born in DATE and lives in the village of GPE in LOC of GPE .","On DATE the applicant was arrested and detained on suspicion of having committed theft of aluminium wire . He was placed in a cell intended for the detention of administrative offenders ( \u201c ORG \u201d ) at the GPE district police station in the village of GPE .","On DATE the applicant lodged a complaint with an investigator of the GPE ORG of LOC , seeking to have the lawfulness of his arrest and detention challenged before GPE ORG of the Oryol Region and requesting that he be released . The complaint was never sent to the court .","On DATE the applicant was charged with theft . On DATE an order for his pre - trial detention was issued by the investigator and confirmed by the prosecutor of LOC of LOC .","On DATE the applicant was transferred to detention facility no . CARDINAL ( Investigatory Isolation Ward no . CARDINAL ) in the town of ORG .","On DATE and CARDINAL DATE the applicant again complained about the unlawfulness of his arrest and detention , this time to ORG of ORG . The complaints reached the court on CARDINAL and QUANTITY respectively .","On DATE the ORG asked to be sent the case file for examination and scheduled a hearing for DATE . The hearing was not held , since the case file had not been communicated and the applicant had not been brought to court .","On DATE the applicant 's counsel wrote to the prosecutor of the Znamenskiy District of LOC , complaining about the investigator 's failure to transfer the applicant 's complaint of DATE , alleging unlawful detention , to a court . The prosecutor did not react .","On DATE ORG held a hearing . The court found that the applicant 's arrest and detention were unlawful and ordered that he be released directly from the courtroom .","On DATE ORG of LOC remitted the criminal case against the applicant on a charge of theft to the public prosecutor of LOC of LOC for further investigation .","By a decision of CARDINAL DATE the GPE ORG of the Oryol Region discontinued criminal proceedings in view of the fact that the prosecution service had dropped the charges against the applicant .","The applicant brought proceedings for non - pecuniary damage caused as a result of his detention .","On DATE the ORG of Oryol held :","\u201c ... the court has come to the conclusion that the plaintiff ORG was unlawfully held in custody during the preliminary investigation for a total of DATE ... , which caused him moral and physical suffering . Furthermore , with regard to compensation for non - pecuniary damage , the court takes into account that , while detained in the ORG of LOC of LOC from DATE to DATE inclusive , ORG was not given food since , according to the report for the period from DATE by the public catering enterprise \u201c Znamenskoye \u201d , which supplies meals for persons detained in the GPE district police department 's ORG , food was not delivered to the district police department from DATE ... In that connection , the court can not account of CARDINAL applications from the head of the district police department ... requesting CARDINAL meals for detainees , since one is undated and the other is dated DATE , in other words DATE after PERSON was detained , and they do not indicate for whom the meals were ordered ... Equally , it follows from the application by ... PERSON 's brother ... that food parcels ... [ for ORG ] were not accepted from him or other relatives [ by the GPE district police department 's ORG ] . Only water and tea were accepted ... \u201d","The court awarded the applicant MONEY ( RUR ) for nonpecuniary damage . The judgment came into force on DATE .","According to the Government , the sum awarded was paid to the applicant on DATE in execution of the judgment . This was not denied by the applicant .","According to the applicant , he was given no water or food during his detention in the GPE district police station 's ORG from DATE inclusive . His relatives were allowed to pass him only water and tea in CARDINAL QUANTITY on DATE . He was not taken out for exercise or permitted to go to a lavatory , which was located outside the building , as frequently as he needed .","Records of the applicant 's questioning on DATE contain a statement by him to the effect that he had not eaten anything since DATE and had not been given water . Similarly , records of his questioning on DATE contain statements that he had not been given anything to eat and drink , that he had been brought water by his brothers and that the investigator had offered to give him food in exchange for a guilty plea .","The applicant 's complaint of CARDINAL DATE about the conditions of his detention was dismissed on DATE as illfounded by the LOC prosecutor 's office . However , the prosecutor noted that there had been no courtyard suitable for detainees ' exercise on account of repair work .","In their observations of CARDINAL DATE the ORG submitted that DATE meals had been served to detainees at lunchtime by the only catering enterprise in the village . The detainees had been served only tea for breakfast and dinner . Food from relatives was accepted without restrictions . According to police officers from the GPE district police station , the applicant refused meals provided by the police . However he received DATE food parcels from his relatives , without restrictions . There were no limitations on drinking water . He did not complain about the shortage of water or food . Thus , when questioned by the district prosecutor on DATE he made no complaints about his detention conditions . He asked only that a doctor be called since he felt unwell , and that request was granted . The applicant was regularly taken out to a lavatory . He was not tortured and no degrading acts were performed against him .","The Code of Criminal Procedure of DATE , in force at the material time , provided as follows :","\u201c ... The accused may ... appeal to a court against the unlawfulness and groundlessness of detention ... \u201d","\u201c ... When a prison administration receives a detainee 's [ appeal to a court against pre - trial detention ] , it must pass the [ appeal ] to the relevant court immediately , and , at any rate , not TIME after its receipt , having informed a public prosecutor ...","If the appeal was lodged via the prison administration , the prosecutor must send [ the documents confirming the lawfulness and validity of the detention as a measure of restraint ] to the court within TIME of receipt of the prison administration 's notification that the person concerned has lodged an appeal ... \u201d","\u201c ... A judge must review the lawfulness of the detention ... within DATE of receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61374","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2003,"docname":"CASE OF BRIENZA v. ITALY","importance":4,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE ( GPE ) .","GPE was the owner of a flat in GPE , which she had let to GPE","In a writ served on the tenant on DATE , the owner informed her of her intention to terminate the lease and summoned her to appear before the Rome Magistrate .","By a decision of CARDINAL DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .","On DATE , a notice was served on the tenant requiring her to vacate the premises .","On DATE , a notice was served on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .","DATE and DATE , the bailiff made CARDINAL attempts to recover possession , but they proved unsuccessful as the owner and then the applicant were not entitled to police assistance in enforcing the order for possession .","On DATE , the applicant became the owner of the flat and pursued the enforcement proceedings","On DATE , he made a statutory declaration that he urgently required the premises as accommodation for himself .","On DATE , the applicant recovered possession of the flat .","Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V.","As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .","The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for \u201c fair rents \u201d ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .","The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .","Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .","The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :","\u201c The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . \u201d","NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .","In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .","The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-72662","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2006,"docname":"CASE OF LESZCZAK v. POLAND","importance":4,"conclusion":"Violation of Art. 5-3;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE , GPE .","On DATE the applicant was arrested . On DATE ORG remanded him in custody until DATE on suspicion of homicide and attempted burglary . It relied on the evidence given by the applicant \u2019s co - suspect . In addition , the court held that his detention was justified in order to secure the proper conduct of the proceedings and referred to the severity of the anticipated penalty . Furthermore , having regard to the fact that the applicant had not confessed , the court considered that there was a reasonable risk that he would attempt to induce witnesses to give false testimonies or otherwise interfere with the proceedings .","On DATE the ORG prolonged the applicant \u2019s detention until DATE . It referred to the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty . The court further held that there was a reasonable risk that the applicant would unlawfully obstruct the proceedings , having regard to the fact that his co - suspect had not been detained at the time . Additionally , it relied on the need to obtain further expert evidence . Lastly , the court considered that other preventive measures would not secure the proper conduct of the proceedings .","On DATE ORG dismissed the prosecutor \u2019s request for prolongation of the applicant \u2019s detention and ordered his release . It found that there had been no other evidence of the applicant \u2019s alleged involvement in the offences in question than the statements of his co - suspect . In addition , the statements of that co - suspect had not been consistent as at the earlier stage of the investigation he had excluded a possibility of the applicant \u2019s involvement in the offences . The applicant was released on DATE .","On DATE ORG ordered the applicant to undergo a DATE psychiatric examination in order to determine whether he could be held criminally responsible .","On DATE the prosecutor appealed against the decision refusing his request for prolongation of the applicant \u2019s detention . On DATE the ORG quashed the contested decision for failure to assess all the evidence in favour and against holding the applicant in custody and remitted the case .","DATE and CARDINAL September CARDINAL the applicant underwent examination in a psychiatric hospital .","On DATE ORG again refused the prosecutor \u2019s request for prolongation of the applicant \u2019s detention . The prosecutor \u2019s request was based on the evidence given by the applicant \u2019s co - suspect . ORG , however , found it to be unreliable . The prosecutor appealed against the decision of CARDINAL DATE . On DATE the ORG quashed the impugned decision on procedural grounds and remitted the case .","On DATE ORG ordered the applicant \u2019s detention for a period of DATE . It held that the period of the applicant \u2019s examination in a psychiatric hospital should count towards his detention on remand . ORG relied on the statements of the applicant \u2019s co - suspect , which it had found to be consistent . Further , it had regard to a report by the smell recognition expert ( opinia osmologiczna ) of DATE and medical evidence concerning the victim of the homicide . It also relied on the severity of the anticipated penalty . The applicant was re - detained on DATE .","On DATE the bill of indictment against the applicant and CARDINAL of his co - accused was submitted to ORG .","On DATE ORG extended the applicant \u2019s detention until DATE . In addition to the grounds invoked in its previous decision , the court considered that the applicant \u2019s continued detention was necessary in order to secure the proper conduct of the proceedings , given the serious nature of the offences with which the applicant had been charged .","The trial court held hearings on CARDINAL , DATE and DATE and DATE .","On DATE ORG convicted the applicant of aggravated homicide and attempted burglary and sentenced him to CARDINAL years\u2019 imprisonment . The applicant appealed against that judgment .","On DATE the ORG quashed the judgment of ORG and remitted the case for retrial . It found that the trial court had exceeded its discretion as to the assessment of relevant evidence , in particular in respect of that given by the applicant \u2019s principal co - accused and the findings of the smell recognition expert .","On DATE ORG ordered that the applicant be kept in custody until DATE . It noted , having regard to the statements of the applicant \u2019s principal co - accused and the report by the smell recognition expert , that there was a strong likelihood that the applicant had committed the offences in question . Furthermore , it relied on the severity of the anticipated penalty .","The applicant \u2019s detention was subsequently prolonged by ORG on CARDINAL occasions : on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) and on DATE ( until DATE ) . In all those decisions , ORG reiterated the grounds given in ORG decision of DATE . In addition , it referred to the circumstances in which the offences in question had been committed and the need to obtain further expert evidence .","ORG held hearings on CARDINAL , DATE and DATE and CARDINAL February , DATE , DATE and DATE .","On DATE ORG convicted the applicant and his co - accused of aggravated homicide and attempted burglary and sentenced him to CARDINAL years\u2019 imprisonment . The applicant appealed against that judgment . On DATE ORG prolonged the applicant \u2019s detention until DATE .","On DATE ORG quashed the first - instance court judgment in respect of the applicant on the same grounds as previously and remitted the case .","Subsequently , the applicant \u2019s detention was extended by ORG on CARDINAL occasions : on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) and on DATE ( until DATE ) . ORG reiterated the grounds previously given for his detention . In addition , the court held that the applicant \u2019s continued detention was justified by the gravity of the offences with which he had been charged . In the court \u2019s view , the applicant \u2019s detention was the only measure which could secure the proper conduct of the proceedings . In the decision of CARDINAL DATE ORG noted that his continued detention was necessary in order to obtain another report of the smell recognition expert .","NORP The applicant \u2019s numerous appeals against the prolongation of his detention and requests to be released were to no avail .","ORG held hearings on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE and DATE . In DATE and DATE respectively CARDINAL reports of the smell recognition experts were submitted to the trial court .","On DATE ORG gave judgment and acquitted the applicant . He was released on DATE . On DATE the ORG upheld the judgment of ORG . The prosecution filed a notice of cassation appeal , but subsequently withdrew it .","In DATE the applicant filed an application for compensation in respect of his manifestly unjustified detention with ORG . These proceedings are pending .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . The other measures are bail ( por\u0119czenie maj\u0105tkowe ) , police supervision ( doz\u00f3r policji ) , guarantee by a responsible person ( por\u0119czenie osoby godnej zaufania ) , guarantee by a social entity ( por\u0119czenie spo\u0142eczne ) , temporary ban on engaging in a given activity ( zawieszenie oskar\u017conego w okre\u015blonej dzia\u0142alno\u015bci ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .","Article CARDINAL \u00a7 CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :","\u201c CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused \u2019s committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . \u201d","Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :","\u201c 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 his identity can not be established or when he has no permanent abode [ in GPE ] ;","( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;","NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years\u2019 imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years\u2019 imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . \u201d","The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :","\u201c CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . \u201d","Article CARDINAL , in its relevant part , reads :","\u201c CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :","( CARDINAL ) seriously jeopardise his life or health ; or","( CARDINAL ) entail excessively harsh consequences for the accused or his family . \u201d","The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court \u2013 within those time - limits \u2013 must in each detention decision determine the exact time for which detention shall continue .","Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :","\u201c CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .","The whole period of detention on remand until DATE first conviction at first instance may not exceed DATE .","Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . \u201d","On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested in the court of appeal within whose jurisdiction the offence in question has been committed ."],"violated_articles":["5"],"violated_paragraphs":["5-3"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-121998","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2013,"docname":"PERUZZO AND MARTENS v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Helena J\u00e4derblom;Mark Villiger;Paul Lemmens","text":["NORP The applicant in the first case , Mr PERSON ( hereinafter also referred to as \u201c the first applicant \u201d ) , is an NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by the law firm LAW , PERSON , ORG colleagues , GPE , GPE .","NORP The applicant in the second case , PERSON ( hereinafter also referred to as \u201c the second applicant \u201d ) , is a NORP national , who was born in DATE and lives in GPE .","NORP The instant applications relate to decisions by the domestic courts ordering the taking of cellular material from the applicants , who had both been convicted of criminal offences in the past . The measures were ordered pursuant to LAW domestic law below ) outside pending criminal proceedings at the prosecution authorities\u2019 request with a view to determining the applicants\u2019 DNA profiles for identification purposes on the occasion of future criminal proceedings .","The courts ordered in each case that in the event the applicants should refuse to voluntarily provide cellular material by means of a saliva sample , a blood sample was to be taken from them by a doctor in accordance with LAW ( see Relevant domestic law below ) . They further specified that any cellular material obtained from the applicants had to be handed over to the expert in charge of its examination without disclosing the applicants\u2019 identity , that the sample was to be used exclusively for the molecular genetic examinations referred to in LAW and that it was to be destroyed without delay once it was no longer required for establishing the applicants\u2019 DNA profiles .","In its related decision of CARDINAL DATE with respect to Mr PERSON ORG noted that the first applicant had been convicted by a judgment of ORG dated DATE of CARDINAL counts of drug trafficking and been sentenced to an aggregate prison sentence of DATE and DATE . On CARDINAL occasions the crime had been preceded by the offence of illicit importation of drugs and on CARDINAL occasions the first applicant had in addition instigated the illicit importation of drugs . ORG further pointed to CARDINAL previous convictions of PERSON in GPE for having infringed the Swiss Narcotics PERSON . It referred in this context to judgments by the Horgen ORG ( Bezirksgericht ) dated DATE and by ORG dated DATE imposing a prison sentence of DATE and DATE and a suspended prison sentence of DATE respectively .","In view of the seriousness of the offences committed in the past and the resulting negative criminal prognosis for the first applicant , ORG found that the order to take a DNA sample from him and the execution of such measure were proportionate .","By a decision of DATE ORG , endorsing ORG decision , dismissed the first applicant \u2019s related appeal and held that the conditions for the taking of an DNA sample pursuant to LAW were met in the instant case . In ORG opinion the considerable length of the prison sentence imposed on the first applicant by ORG in DATE showed that the underlying drug offences constituted serious crimes in the meaning of the said provision . In this connection and in particular in view of the considerable amount of drugs that had been trafficked it was irrelevant that the applicant had \u201c only \u201d dealt with marihuana . ORG further found that there were grounds to assume that criminal proceedings concerning serious offences would have to be conducted against the applicant in the future . The first applicant \u2019s negative criminal prognosis followed in particular from the fact that his conviction in DATE had not only related to a single spontaneously committed offence of drug trafficking but to a series of offences committed over the period from DATE to DATE . Moreover , he had previously been convicted of similar offences in GPE . The fact that his first conviction by the PERSON ORG dated back as long as DATE did not put into question his negative criminal prognosis . It had been demonstrated by the judgment of ORG dated DATE that the applicant had committed further drug - related offences in the period from DATE to DATE in GPE , i.e. prior to his conviction in GPE in DATE . ORG further specified that the applicant \u2019s potential expulsion to GPE did not have an impact on its assessment of the case . Pursuant to NORP criminal law crimes of the kind at issue were subject to NORP jurisdiction even when committed abroad . Moreover , the fact that an individual had his place of residence abroad did not prevent him from committing offences in GPE .","By written submissions to ORG dated CARDINAL DATE the first applicant argued that there was nothing to indicate that he would commit further offences similar to the ones that had been at the origin of his previous convictions . He invoked in particular that the crimes referred to by ORG in its decision of DATE dated back DATE and that he had already served prison sentences of a considerable duration in this respect . Furthermore , since he was supposed to be expelled to GPE after having served CARDINAL of his prison sentence , it was unlikely that he would reoffend in GPE and take the risk of having to serve the residual term of his prison sentence as a consequence .","On DATE ORG held that the first applicant \u2019s submissions did not provide any additional arguments that would require it to deviate from its previous decision of DATE .","By a decision of CARDINAL DATE ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) ORG dismissed the applicant \u2019s constitutional complaint without providing reasons .","NORP In its decision of CARDINAL DATE with respect to Mr GPE ORG , referring to the latter \u2019s criminal record since DATE , held that the repeated commission of offences by the second applicant in the past had reached a degree of unlawfulness equal to the commission of an offence of considerable significance within the meaning of LAW . In DATE the second applicant had been convicted by ORG of having caused bodily harm by dangerous means ( gef\u00e4hrliche GPE ) and had been sentenced to a suspended prison sentence of DATE . By a judgment of CARDINAL DATE ORG had found him guilty of CARDINAL counts of attempted coercion ( PERSON ) and had imposed a fine of CARDINAL euros payable in CARDINAL DATE instalments . On DATE the same court had convicted the second applicant of a further offence of having caused bodily harm by dangerous means and sentenced him to a suspended prison sentence of DATE . Finally , by a judgment of ORG ( Landgericht ) , GPE , of CARDINAL DATE , he had been found guilty of having persistently stalked a woman and had been sentenced to CARDINAL months\u2019 imprisonment . As regards the CARDINAL incidents involving bodily harm in DATE and DATE the GPE ORG specified that the second applicant had sprayed tear or pepper gas into his respective GPE faces from a short distance leaving CARDINAL victim with painful skin irritations and the other with an eye inflammation .","In LOC opinion the manner in which the offences had been committed showed that the second applicant had a tendency to compromise considerably the physical well - being of others and that further serious criminal offences were to be expected from him in the future . The court further found that having regard to the intervals in which the offences had been committed , it could be expected that the second applicant would repeatedly commit further offences similar to the ones that had been at the origin of the criminal proceedings instituted against him in the past . Having regard to the nature of the offences at issue it was conceivable that DNA traces would be left at the scene of a future crime and the measure ordered by the court was thus justified and necessary for the purpose of establishing identity and gender on the occasion of future criminal proceedings .","By written submissions dated CARDINAL DATE the applicant appealed ORG decision . He maintained in particular that the offences committed by him in the past had not been of a gravity that justified an interference with his personal rights under LAW . He further complained that ORG had not complied with his request to hear him in person and had not adequately reasoned its decision .","By a decision of CARDINAL DATE the NORP - ORG dismissed the appeal holding that the conditions for the taking of a DNA sample pursuant to LAW had been clearly met in the instant case and that ORG order had consequently been proportionate . ORG held that , firstly , the CARDINAL incidents involving bodily harm that had been at the origin of the second applicant \u2019s convictions in DATE and DATE constituted serious offences in the meaning of the said provision . On each of these occasions the second applicant had shown aggressive behaviour towards third persons without having been particularly provoked by the latter . Both offences had been committed in a similar way and demonstrated a significant criminal energy on the part of the second applicant and his potential for aggression .","ORG further recalled that LAW put the repeated commission of offences on an equal footing with the commission of a serious crime for the purpose of justifying the taking of a DNA sample . ORG pointed out that the legislator had specified in this context that repeated offences in the context of so - called stalking of the type that had been at the origin of the second applicant \u2019s conviction by judgment of ORG in DATE , constituted an example where the repeated commission of an offence reached a degree of unlawfulness that was equal to the commission of a serious offence . The second applicant \u2019s previous convictions further showed that he had a tenacious and incorrigible character which was also reflected in his partly confused and incomprehensible submissions to ORG in the instant proceedings . Having regard to the second applicant \u2019s numerous past convictions , his personality and the circumstances under which the offences had been committed , ORG found that there clearly remained a risk that criminal proceedings concerning similar offences would have to be conducted against him in the future .","On DATE ORG , at the prosecution authorities\u2019 request , revoked the suspension of the second applicant \u2019s prison sentence imposed by its judgment dated DATE ( see paragraph CARDINAL above ) . With reference to the conviction for stalking by ORG dated CARDINAL DATE which had meanwhile become final , ORG argued that the fact that the second applicant had reoffended in the course of his probationary period demonstrated that a suspended sentence was not sufficient to counter the risk of recidivism .","By a decision of CARDINAL DATE ( file no . CARDINAL BvR CARDINAL\/CARDINAL ) ORG declined to consider the applicant \u2019s constitutional complaint of CARDINAL DATE against the NORP - ORG decision of DATE without providing reasons . It further held that , as a consequence , there was no need to decide on the applicant \u2019s request for interim measures .","While the applicants\u2019 submissions suggest that the court orders were subsequently executed and DNA samples taken from each of them , neither of the applicants has specified on which date the intervention occurred and whether the samples were obtained by means of saliva or blood samples .","Article CARDINALa to f of the German Code of Criminal Procedure ( Strafprozessordnung ) provide for the taking of DNA samples for the purpose of convicting suspects within the scope of pending criminal proceedings . By contrast , LAW regulates the taking of cellular material from suspects and convicts with a view to determining their DNA profile for use in future criminal proceedings . LAW g \u00a7 CARDINAL in its current version , as also applicable at the time of the proceedings at issue , provides for such measure if a person is suspected of having committed or has been convicted of a criminal offence of considerable significance ( PERSON erheblicher GPE ) or of a crime against sexual self - determination and in the event the nature of the offence or the way it was committed , the personality of the concerned person or other information provide grounds for assuming that criminal proceedings will be conducted against him or her in future in respect of a criminal offence of considerable significance . Under these conditions cellular material may be obtained from the person concerned and subjected to molecular and genetic examination with a view to determining his or her DNA profile ( DNA - Identifizierungsmuster ) or gender for identification purposes in future criminal proceedings .","It is further specified in the provision that the repeated commission of criminal offences may reach a degree of unlawfulness ( GPE ) that is tantamount to a criminal offence of considerable significance . This alternative ground for the taking of cellular material has been introduced into LAW g \u00a7 CARDINAL by the LAW on the revision of forensic DNA - analysis dated DATE ( Gesetz PERSON forensischen ORG , ORG I , p. CARDINAL ) . According to the explanatory memorandum to the LAW the repeated commission of offences does not automatically reach the same level of significance as a serious crime . An order for the taking of cellular material under this alternative is only admissible in the event the circumstances of a particular case taken together provide evidence that the repeated commission of offences reaches the same degree of unlawfulness as a serious crime in the meaning of the provision . While , for instance , repeated fare evasion for public transport would as a rule not reach such threshold , this could , by contrast , be the case in the event of repeated trespassing in the context of stalking .","The second paragraph of LAW stipulates that cellular material obtained may be used only for the aforementioned molecular and genetic examination and shall be destroyed without delay once it is no longer required for that purpose . Information other than that required for establishing the DNA profile or the gender may not be ascertained during the examination and tests to establish such information shall be inadmissible . Without the written consent of the person concerned , the taking of cellular material may be ordered only by a court and , in case of imminent danger ( Gefahr i m Verzug ) , by the public prosecution authorities including the officials assisting it ( section CARDINAL of LAW ) . Without the written consent of the person concerned , the molecular and genetic examination of cellular material may be ordered only by a court . The related court order shall specify in each case the determining facts relevant to ascertaining the seriousness of the criminal offence at issue , the information giving rise to the assumption that the accused will be the subject of criminal proceedings in the future , as well as an evaluation of the relevant circumstances .","Pursuant to LAW g read in conjunction with the second paragraph of LAW the courts shall appoint the experts responsible for the examination of the DNA material and determination of DNA profiles . The experts have to meet certain requirements with a view to ensuring their independence from the investigating authority as well as their professional integrity . They shall provide for the technical and organisational safeguards to ensure that inadmissible molecular and genetic examinations and unauthorised access to data are excluded . The cellular material to be examined shall be given to the expert with no indication of the name , address or date or month of birth of the data subject .","Article CARDINAL g \u00a7 CARDINAL states that the data obtained may be stored at ORG ( Bundeskriminalamt ) and be used in accordance with the relevant provisions of ORG ( Bundeskriminalamtgesetz ) . Data may only be transmitted for the purpose of criminal proceedings , preventive aversion of dangers ( Gefahrenabwehr ) or international legal assistance in respect thereof .","In the event of the taking of cellular material by means of a blood sample LAW apples mutatis mutandis . The taking of blood samples is to be effected by a physician in accordance with the rules of medical science , provided no detriment to the concerned person \u2019s health is to be expected . Blood samples or other body cells taken may be used only for the purposes set out in LAW and shall be destroyed without delay as soon as they are no longer required for such purposes .","Since DATE ORG maintains a national DNA database in which DNA profiles obtained in compliance with ORG to g of LAW are stored . ORG contains rules on the storage and use of such DNA profiles . According to section CARDINAL of ORG , ORG in its capacity as central agency for police information and intelligence in connection with the prevention and prosecution of criminal offences of federal , international or considerable significance , shall collect and analyse all relevant information for carrying out such task . Pursuant to LAW a convict \u2019s personal data may be saved in files for the use in future criminal proceedings in the event particular circumstances give reason for believing that the person concerned will commit criminal offences of considerable significance . Personal data taken from an individual suspected of having committed a criminal offence have , as a rule , to be deleted in the event the proceedings against the concerned person have been definitely discontinued or once the suspect has been acquitted ( section CARDINAL \u00a7 CARDINAL ) . The data compiled in the national DNA database may be made available to the Federal and NORP police authorities and according to LAW the public prosecution authorities may retrieve information from the database for the purpose of administering criminal justice . Section CARDINAL of ORG stipulates that personal data saved in files have to be deleted once their storage has become inadmissible or in the event the retention of the data is no longer necessary for the performance of ORG Office\u2019","By a judgment of DATE ( CARDINAL BvR CARDINAL\/CARDINAL ; CARDINAL ORG and CARDINAL BvR CARDINAL\/CARDINAL ) ORG held that the provision of LAW was constitutional . It emphasised that the scope of the provision was limited to the determination of a suspect \u2019s or convict \u2019s DNA profile for the purpose of establishing identity in future criminal proceedings and that the cellular material obtained in this respect had to be destroyed once the DNA profile was determined . The DNA profile as such did not allow for conclusions to be drawn as regards the personal characteristics of a concerned individual such as his or her hereditary dispositions , character traits or diseases and did not enable for an individual \u2019s personal profile to be established . In ORG opinion the core area of personality ( PERSON ) that enjoyed absolute protection under constitutional law was thus not affected by the measures permitted under LAW .","ORG found , however , that the determination , retention and future use of DNA profiles constituted an interference with the constitutionally guaranteed right to self - determination over personal data ( informationelles Selbstbestimmungsrecht ) . Any restriction of such right was only permitted if prescribed by law and in the event it was justified by an overriding public interest and complied with the principle of proportionality . ORG specified in this respect that while LAW was not aimed at the prevention of future criminal offences , it did however facilitate the investigation of future crimes of considerable significance and thus served the proper administration of justice . ORG further held that the provision was sufficiently precise to qualify as a law from a constitutional point of view . The term \u201c criminal offence of a considerable significance \u201d could be found in a number of provisions of LAW and had been defined in the established case law of the domestic courts as comprising crimes of medium gravity ( mittlere ORG ) which seriously compromised law and order and were of a nature that could considerably affect the population \u2019s sense of legal certainty ( GPE ) .","The court finally held that the precautionary ( \u201c vorsorglich \u201d ) taking of evidence permitted under LAW did not infringe the principle of proportionality . The taking of such evidence could only be ordered in the event the concerned person had previously been convicted of an offence of considerable significance and in the event there were concrete indications that further proceedings concerning criminal offences of considerable significance were to be conducted against him or her in the future . Moreover , by strictly limiting the use of cellular material collected for the purposes defined in the LAW and by making its destruction compulsory once the concerned person \u2019s DNA profile was established , the legislator had provided for safeguards to prevent abuse of cellular material obtained .","ORG specified that when ordering a measure pursuant to LAW had to establish and clarify the circumstances of each particular case . In their assessment they had to take into account the available criminal files and records with respect to the person concerned and had to provide plausible reasons for their assumption that it was likely that the latter would commit further crimes of considerable significance in the future .","By a subsequent judgment dated DATE ( CARDINAL BvR CARDINAL\/CARDINAL ) LAW further held that the possibility of ordering the taking of a DNA sample in the event the repeated commission of criminal offences showed a degree of unlawfulness similar to the commission of a serious criminal offence - an alternative introduced by LAW on the revision of forensic DNA - analysis dated DATE - did not give rise to concerns from a constitutional point of view . With reference to the explanatory memorandum to the said LAW see above paragraph CARDINAL ) , ORG noted that this alternative did not allow the domestic courts to automatically conclude that the repeated commission of offences justified an order for the taking of cellular material . By contrast , the domestic courts were obliged to have regard to the specific circumstances of the individual case and in particular the personality of the person concerned and the manner in which the offences had been committed . On this basis they had to proceed to an overall assessment of the degree of unlawfulness reflected in the offences committed and to be expected in the future while always observing the principle of proportionality in their decision - making .","For a summary of relevant ORG and ORG legal instruments and an overview of relevant national legislation in a selection of ORG member states , reference is made to the ORG \u2019s judgment in PERSON and GPE v. GPE [ ORG ] , ORG . CARDINAL and CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL to CARDINAL , ECHR DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-98965","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2010,"docname":"CASE OF RACAREANU v. ROMANIA","importance":4,"conclusion":"Violation of Art. 3","judges":"Alvina Gyulumyan;Corneliu B\u00eersan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant was arrested by ORG on suspicion of drug trafficking .","DATE he was placed in pre - trial detention by the prosecutor attached to ORG .","On DATE the prosecutor committed the applicant for trial .","On DATE ORG convicted the applicant of drug trafficking and sentenced him to DATE and DATE imprisonment .","The sentence was upheld on appeal by ORG ( decision of DATE ) and on appeal on points of law by ORG ( final decision of DATE ) .","On DATE the applicant requested the revision of the judgment , arguing that he was in possession of new relevant evidence that would prove his innocence and that he was willing to deliver it in person to the prosecutor . On DATE ORG declared his application inadmissible .","The applicant was held in detention from DATE until his release on CARDINAL DATE .","DATE and DATE he was held in the detention facilities at FAC . From DATE he was detained for the most part in ORG and ORG in GPE . For short periods of time , from DATE , he served his sentence in the penitentiaries in GPE , PERSON , GPE and GPE .","The applicant described the cells in ORG as overcrowded and dirty , alleging that he contracted skin infections and scabies and caught fleas .","As for ORG , he claimed that he shared a QUANTITY . m room equipped with CARDINAL beds with CARDINAL other detainees . The room was infested with bedbugs and the walls were mouldy . Warm water was available once DATE for TIME and heating was available in DATE for TIME . The cell was ventilated through a window , but the door was constantly closed . The window pane was missing and the inmates put up a blanket in order to cover it .","Outdoor exercise was allowed DATE for TIME .","NORP The food was bad , and meat was available only on NORP holidays and in the event of inspections .","The detainees were taken for medical check - ups once DATE and when treatment was needed they were advised to seek medicine from their families .","The Government provided official information , submitted by ORG authorities , concerning the size and facilities of all the cells that the applicant had occupied during his detention .","In PERSON , he stayed in the following cells : nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL which were all QUANTITY . m in size and accommodated DATE inmates at the time ; no . CARDINAL which was QUANTITY . m in size and accommodated CARDINAL - CARDINAL inmates at that time ; and in no . CARDINAL which was CARDINAL sq . m in size and accommodated CARDINAL inmates .","The official documents did not give the exact number of bunks per cell .","Each cell had a window and separate sanitary facilities with CARDINAL toilets and a sink with drinking water . Hot water was available only in a special bathing area where the inmates were taken once DATE .","Each DATE heating was available DATE , according to a pre - established schedule .","NORP The inmates were responsible for the cleaning of their cells , using products put at their disposal by the penitentiary . Pest control measures and insecticide treatments were carried out each trimester .","The applicant was allowed TIME of outdoor exercise per day .","In ORG , the applicant shared a QUANTITY . m cell with a maximum of CARDINAL co - detainees . It had CARDINAL bunk beds . A QUANTITY . m room with a toilet and cold water was attached to the cell . Hot water was available twice DATE TIME The cells and the toilets had windows .","As in PERSON , the inmates cleaned their own cells and pest control measures were carried out each trimester .","Outdoor exercise was allowed for TIME each day .","According to the prison medical record , the applicant was registered on DATE as a drug user , with the last dose being taken TIME before the consultation . He was also recorded as suffering from posttraumatic stress , as a consequence of bone fractures suffered in DATE .","On DATE and DATE he was recorded as suffering from withdrawal syndrome .","From DATE he went on hunger strike .","On DATE the applicant was taken to the medical care centre after having attempted to commit suicide .","Regular check - ups were organised for the DATE bone fractures . Several investigations were undertaken in the context of his requests for early release . On DATE an orthopaedist in ORG recommended surgery to remove the internal fixation ( osteosynthesis ) of the fractures . The repeated examinations and expert reports by the penitentiary doctors and by ORG ( Institutul Na\u0163ional de Medicin\u0103 Legal\u0103 PERSON the INML \u201d ) consistently concluded that adequate treatment and surgical intervention were possible in the penitentiary medical system .","However , the applicant refused to be operated on in the penitentiary hospitals .","NORP In letters of complaint sent to various authorities and to the Court , the applicant and his wife claimed that the painkillers that he had received in prison had been insufficient for the pain associated with his bone fractures . From DATE the applicant was given additional medicine for stomach ache , which he attributed to the painkillers prescribed .","On CARDINAL occasions the applicant requested early release from prison on medical grounds , arguing that the bone fractures he had suffered in DATE needed further treatment .","His first request was rejected on DATE by ORG , based on a medical expert report of DATE which had concluded that the applicant 's conditions were treatable in the penitentiary hospitals . The applicant appealed . A new expert report ordered in the case also concluded that the applicant was medically fit for detention . Therefore , on DATE ORG upheld the above judgment . ORG also found that , in so far as the applicant 's conditions were treatable in the penitentiary hospitals , his repeated requests to be treated in a civilian hospital or abroad were an abuse of process .","His second request for release , filed with ORG on DATE , was finally rejected on DATE , after numerous postponements caused by the applicant 's refusal to undergo a medical examination . The expert report drafted on DATE after the applicant 's examination concluded once again that his conditions were treatable in the penitentiary hospitals .","The domestic legislation on the execution of sentences , in particular PERSON no . TIME , Emergency Ordinance no . CARDINAL ( \u201c Ordinance no . CARDINAL \u201d ) and PERSON no . CARDINAL\/CARDINAL , is described in GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE .","The relevant findings and recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( \u201c the ORG \u201d ) are described in GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE , and PERSON GPE ( no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) . In particular , the ORG notes that in the report on the DATE visits , the ORG expressed concern at the limited living space available to prisoners and the insufficient space provided by the regulations in place at that date . It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not sufficiently separate from the living space ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78391","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2006,"docname":"CASE OF SHEVTSOV v. UKRAINE","importance":4,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Just satisfaction dismissed (out of time)","judges":"Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG ordered ORG PERSON \u201d to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL in salary arrears and compensation for the delay in its payment .","On DATE ORG of Lugansk instituted enforcement proceedings .","On DATE ORG informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor 's lack of funds .","On DATE the applicant was paid the amount due to him in full .","NORP In DATE the applicant instituted proceedings in ORG of GPE against the same company , seeking compensation for its failure to pay him the judgment debt of DATE .","On DATE the court rejected the applicant 's claim as unsubstantiated . On DATE and CARDINAL DATE , respectively , ORG and ORG upheld the decision of DATE .","The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , \u00a7 \u00a7 DATE and DATE , DATE ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58976","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2000,"docname":"CASE OF TA\u015e v. TURKEY","importance":3,"conclusion":"Violation of Art. 2 with regard to death of applicant's son;Violation of Art. 2 with regard to failure to carry out effective investigation;No violation of Art. 3 in respect of applicant's son;Violation of Art. 3 in respect of applicant;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 13;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Elisabeth Palm","text":["The facts of the case , particularly concerning events from DATE to CARDINAL DATE when PERSON was held in custody by the security forces , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .","The Commission heard witnesses in GPE from DATE . These included the applicant ; PERSON , the public prosecutor at Cizre who signed the request for the extension in detention of PERSON ; Dr PERSON , doctor at ORG who treated PERSON for a bullet wound to the knee ; PERSON Can who examined PERSON at ORG ; Major PERSON , the LOC gendarme commander who apprehended PERSON ; PERSON who was present at ORG apprehension ; Colonel PERSON , who was in charge of transferring PERSON from ORG ; PERSON , PERSON and PERSON , who worked in GPE provincial gendarme interrogation department at the time of PERSON arrival at GPE ; and ORG , a \u201c confessor \u201d , who had previously joined the ORG and had later given himself up to the authorities .","The DATE \u2019s findings of fact are set out in its report of DATE and summarised below ( Section A ) . The applicant accepts the ORG \u2019s findings of fact . The Government \u2019s submissions concerning the facts are summarised below ( Section B ) .","In DATE , the NORP region in the south - east corner of GPE , close to the GPE and NORP borders , was the scene of intense terrorist activity . The town of GPE was close to the GPE mountains , where there were numerous ORG camps and shelters . The road between ORG , the provincial centre , was subject to attack , necessitating military protection for convoys passing on the main road between the CARDINAL towns .","NORP The district gendarme commander in Cizre at the time was Captain PERSON . The provincial gendarme headquarters , commanded by a colonel , was located in GPE , as was the CARDINALrd gendarme border brigade . Though the CARDINAL commands were distinct , it appeared from the evidence that the provincial gendarme command headed by a colonel was subordinate to the brigade command under a general . There was an interrogation centre at the provincial gendarme command , where the CARDINAL interrogators PERSON , PERSON and PERSON worked .","During an operation conducted in or around the Cudi district of Cizre by the police and district gendarmes early in the morning of DATE , PERSON was shot in the knee and taken into custody by gendarmes under Captain PERSON \u2019s command at TIME . In the search report of DATE detailing this incident , it was stated that PERSON had been found in possession of a PERSON rifle , handgun and hand grenades . According to this report and the oral evidence of Captain PERSON , PERSON immediately revealed to the gendarmes his name , that his code name was \u201c LOC and that he had come to Cizre to carry out actions for the ORG . Captain PERSON considered that it was apparent from what PERSON told him that he was a commander . However , he did not recall that PERSON made any offer to him to give assistance in finding ORG locations . PERSON , who was also on the scene at this time , heard PERSON give his name and code name and say that he was from the mountain . He did not hear PERSON volunteer any assistance to the security forces .","After this initial exchange with the gendarmes at the scene of his capture , PERSON was taken to ORG where he was admitted for treatment by PERSON at TIME . PERSON had no recollection of PERSON but was of assistance in deciphering his report for ORG . This recorded that PERSON had an entry and exit wound to the knee , with injury to the front lower right knee joint . He was conscious and at that point his life was not in danger . Due to the lack of equipment and orthopaedic expertise , PERSON recommended his transfer to GPE .","At a time unknown the same day , PERSON was handed over to Captain PERSON , an officer from the GPE provincial gendarmerie who was in command of the convoys going between GPE and GPE .","The Commission requested , on numerous occasions , the records which indicated the places and times of PERSON detention following his apprehension . No record was provided indicating where he was held in Cizre between his treatment in hospital and his transfer to the GPE convoy . Captain PERSON thought that PERSON must have been entered in the LOC gendarme records as he was detained pursuant to the authority of the NORP public prosecutor . Records provided by the Government from NORP district gendarmerie contained no entry concerning PERSON .","The decision to transfer PERSON to GPE was taken by the DATE gendarme border brigade . Captain PERSON had reported the capture of PERSON to the brigade command and they requested his transfer to GPE . The transfer record of DATE also referred to the brigade \u2019s request . The reason for the transfer was not expressed in that document . Captain PERSON considered that PERSON would have had to go to GPE as he was a commander with information about the GPE mountains and it was the forces in GPE who conducted operations in that region .","The only record relating to PERSON detention after his arrival in GPE was an entry in the ORG polyclinic record . This was dated DATE , giving no time . Neither Captain PERSON nor the doctor who gave treatment had any recollection of the incident , so were unable to provide any explanations as to exactly when he arrived or to whom he was delivered . Dr Can , who treated PERSON , considered on the basis of his entry in the hospital record that he would have treated the injury , placing a long leg splint or supervising an assistant in doing so . He was of the opinion that PERSON would not have been admitted to the hospital as his notes made no reference to this step being taken or considered necessary . The follow up treatment which he stated would be necessary DATE antibiotics , which would most likely have been handed to the patient on the spot , and the requirement for the wound to be dressed at DATE intervals \u2013 did not require continuous hospital care .","Of the CARDINAL officers identified by the Government as having interrogated PERSON at the GPE provincial gendarme headquarters DATE PERSON , PERSON and PERSON \u2013 CARDINAL , PERSON , remembered interrogating PERSON . No logs or records were provided by the ORG from the interrogation department recording PERSON interrogation , nor the interrogation notes which the witnesses said would have been taken . The Government denied that these documents existed . The only source of information about the interrogation of PERSON therefore was the oral evidence of PERSON and the brief comments which appeared in various gendarme reports following PERSON \u2019s alleged escape .","According to PERSON , he interviewed PERSON on CARDINAL occasion , while PERSON was confined to bed either in the hospital or infirmary . He remembered taking notes which they gave to their superiors . He could recall that the information related to the area where the person had carried out activities but did not mention any alleged offer to assist the security forces by showing locations . The Delegates had also requested the infirmary records concerning PERSON presence and treatment . The Government stated the infirmary records contained no information about PERSON .","Though the Commission did not exclude that the hospital or infirmary records were inaccurate , it noted that in its experience it had found the records made by doctors to be generally reliable , if sometimes brief , whereas the inaccuracy of , and omissions from , gendarme records had been the subject of adverse findings in a number of cases . Further , it found the testimony of the interrogation officers to be unconvincing , giving the impression of being selective or piecemeal accounts . From their evidence , it was generally expected for the same officers to follow through a suspect \u2019s interrogation to the stage when a statement was taken by the district gendarmerie who had the responsibility at the end of the custody period to deliver the suspect to the public prosecutor for judicial procedures to be followed . PERSON had no explanation however for why he only visited PERSON once . While PERSON removal from the interrogation process must have been unexpected or unusual , he apparently knew nothing about it \u2013 nor about PERSON \u2019s apparent involvement in an operation to locate shelters or his apparent escape afterwards . The ORG was not persuaded that a suspect in respect of whom the provincial gendarmerie had commenced interrogation would or could be transferred elsewhere without some information or explanation being provided to the officers involved in the interrogation . Furthermore , a single , apparently brief interrogation did not account for the CARDINAL DATE extended custody periods which were requested by the FAC district gendarmerie on behalf of those holding PERSON .","The evidence of the interrogation officers was therefore unable to provide any approximate date as to when any interrogation took place or any reliable basis on which to reach any finding as to where PERSON was held after his examination by Dr Can . Though his wound should have been dressed DATE and Dr Can would have expected himself , or another doctor , to check the patient \u2019s state after DATE or DATE , there is no evidence that he received any follow - up medical care after DATE .","A custody period of DATE from the date of apprehension was granted by the NORP public prosecutor at the request of the district gendarme commander . A further period of DATE was granted by him on DATE on the request of the district gendarmerie .","According to a hand written incident report dated DATE , TIME , signed by a gendarme captain group commander PERSON and gendarme first lieutenants PERSON and PERSON , both of whom were team commanders , PERSON escaped from the security forces while assisting them on an operation in the GPE mountains to find ORG shelters .","According to the evidence of the doctors who treated him , it was probable that PERSON was not rendered completely immobile by the injury to his knee . With the long leg splint , he would have been able to hobble , with a crutch or assistance . In DATE after the injury , he would have been in considerable pain . By DATE , a period of DATE after his injury , he would have been expected to have made some recovery . PERSON , the orthopaedics expert , estimated that the splint would have had to stay on for DATE and that a patient might be able to run as well as walk within the same range of time . He pointed out that with sufficient motivation a person could run , notwithstanding a high level of pain . In the absence of medical notes , the ORG was unable to reach any firm conclusions as to what state of fitness PERSON would have been in on DATE . It found it highly unlikely however that he was fully fit or able to walk or run normally at this date .","The Commission found that the incident report of CARDINAL DATE was an unreliable document . The report stated that PERSON ran off after a clash broke out , under cover of the fading light , precipitation and rocky terrain . It did not mention how many gendarmes were involved in the operation , how many were guarding the suspect and whether \u2013 and if not , why not \u2013 the suspect was restrained or handcuffed in some way . No details were given of the steps taken to recover the suspect . The times given on the report were particularly implausible . It was stated that the clash broke out at TIME following which there was a sequence of events \u2013 the escape , the discovery of the escape , an unsuccessful search , the monitoring of various radio conversations between terrorist \u2013 culminating in the drawing of the report and its signing by the CARDINAL officers at TIME .","In these circumstances , the ORG considered that it was of crucial importance that the CARDINAL signatories of the report gave explanations of the document and what they in fact saw and did . The Delegates in requesting the ORG \u2019s assistance in summoning them to give evidence emphasised that the ORG should at the same time identify the officers who personally witnessed PERSON escape as the Commission had experience that the signatories of reports did not necessarily have any direct knowledge of the contents . At the taking of evidence in DATE , ORG informed the Delegates that they had been unable to find CARDINAL officers who signed the report and that they had recently received information that the names used were code names . In reply to the FAC request for steps be taken to identify the officers who used these code names in DATE , the ORG stated that it was not possible to identify the CARDINAL officers . The Delegates also requested the other operation records or details which could cast light on the incident . The Government stated that no other records existed .","No document was provided recording authorisation for the transfer of PERSON to any particular operational command at GPE . In particular , there was no contemporaneous document or record indicating that he was transferred from the provincial gendarme interrogation unit elsewhere . It had not been established by the written or oral evidence that PERSON had in fact offered to show locations during his interrogation .","The Government relied principally on the evidence of CARDINAL ex - ORG members or \u201c confessors \u201d \u2013 the written statements taken from ORG and PERSON , and the oral evidence of ORG \u2013 as substantiating the allegation that PERSON had escaped and rejoined the ORG in the GPE mountains on DATE . The ORG however did not find this material to be reliable or , on certain crucial aspects , credible . It referred , inter alia , to the lack of any explanation as to how the CARDINAL confessors came to be identified at the same time as persons with relevant information about PERSON ; that ORG and PERSON statements of CARDINAL DATE referred to injuries suffered by PERSON in DATE and made no reference to the injury which he had received in DATE ; and the fact that ORG statement of CARDINAL DATE stated that he joined the ORG in DATE becoming a friend of PERSON before his capture in Cizre , though that latter event occurred on DATE .","The ORG also found that ORG oral evidence was inconsistent and unconvincing . His story changed under questioning and gave the impression of embroidery . It was not reconciliable with uncontroverted facts . For example , ORG was insistent that he spent a DATE training course with PERSON after he joined the ORG in DATE , which explanation formed the basis for his claim of forming a close friendship with PERSON , whereas PERSON was apprehended in Cizre in TIME of DATE . ORG were accordingly not satisfied that he had seen PERSON after DATE as asserted . It concluded that the ORG \u2019s claim that PERSON escaped while assisting the security forces on an operation was not substantiated by the evidence given and could not be regarded as established as a fact or a significant probability . There was accordingly no explanation for what happened to PERSON after he was treated by Dr Can at ORG on DATE .","The applicant was informed on DATE that his son had been apprehended and injured in a clash in LANGUAGE . Arriving in Cizre on DATE , he went to see the public prosecutor immediately . He was told to come back after DATE extended custody period . Meanwhile , the applicant sought to visit , or discover further information , about his injured son by approaching the gendarmerie in GPE and Cizre but was turned away . On the expiry of DATE period , at DATE or beginning of DATE , he returned to the public prosecutor handing in a written petition . The public prosecutor signed the petition and he took it to the district gendarme commander who referred him back to the public prosecutor . During DATE period to end , the applicant returned to the public prosecutor repeatedly seeking for news and on CARDINAL occasion , the public prosecutor contacted the district gendarmerie by telephone .","On the expiry of the second period , the applicant returned to the public prosecutor . On DATE , he handed in a further written petition which stated that he had no news although DATE had passed from DATE second custody period . He requested information and stated that he feared for his son \u2019s life . On or DATE , the public prosecutor informed him that it was reported that his son had escaped . The written report from the district gendarmerie to the prosecutor was dated DATE but it was possible that the information was received by the public prosecutor prior to this date . The applicant informed the public prosecutor orally that he did not believe this story and that he believed his son had been tortured and killed .","The public prosecutor at Cizre took no steps to investigate the alleged escape of PERSON while in custody in reaction either to the applicant \u2019s expressed fears or to the fact that a prisoner awaiting judicial procedures had somehow been permitted to escape . On DATE , the public prosecutor issued a decision of withdrawal of jurisdiction and transferred the file concerning PERSON as a suspected member of the ORG to ORG ( ORG ) public prosecutor . It stated as an apparent fact that he had escaped to rejoin the ORG . The steps taken by the ORG prosecutor were related to investigating his membership of ORG and not related to investigating his disappearance .","The applicant returned to Cizre in DATE to see the public prosecutor , who informed him that the case had been transferred to ORG .","Following the communication of the case to the respondent Government by the ORG in DATE , it appears that an investigation was briefly pursued by the Cizre public prosecutor ( file no . MONEY ) This was limited to an enquiry dated DATE to the NORP district gendarme command for the names of the officers who signed the report of DATE to be identified . Following a letter dated CARDINAL DATE from the FAC district gendarmes which stated that enquiries should be addressed to the GPE gendarme border regiment command , and that the special operations group command were responsible , the NORP public prosecutor declined jurisdiction in a decision of DATE , transferring his file to the GPE public prosecutor .","NORP The GPE public prosecutor had meanwhile commenced an investigation ( prel . DATE ) under the prompting of GPE . At this stage , the following steps were taken :","\u2013 on DATE , a request was made to the DATE gendarme border regiment for the identities of the personnel of the special operations group involved in the operation of CARDINAL DATE to be identified ;","\u2013 on DATE , a statement was taken from the applicant on CARDINAL DATE by the ORG public prosecutor ;","\u2013 on DATE , a statement was taken from ORG by a public prosecutor ;","\u2013 on DATE and DATE , an urgent reminder was sent requiring a response to the above request of DATE ;","\u2013 on DATE , a request for information about the identities of personnel was sent to GPE provincial gendarme command who replied on CARDINAL DATE that it was ORG who had taken PERSON ;","\u2013 following receipt of a letter on DATE , in which ORG command denied knowledge of the CARDINAL names on the report of DATE but named CARDINAL officers ( LOC , NORP and \u00c7etin ) as being group commander and team commanders at that time , a request was made for those QUANTITY officers to be asked a list of CARDINAL specific questions , namely , about whether they were serving in ORG at the time , whether they or ORG received PERSON , whether they knew the names on the report and where it would be possible to identify the names on the report ;","\u2013 on DATE , a request was made of the NORP public prosecutor for the transfer record concerning PERSON .","On DATE , the GPE public prosecutor issued a decision of withdrawal of jurisdiction , stating that it had not been possible to identify the officers involved in the alleged incident . The decision concluded that the matter should be investigated under LAW as it concerned special operations teams and that the file was to be transferred to the GPE provincial administrative council .","The investigation was taken over by ORG who by letter of DATE appointed Major PERSON , a gendarme officer from the provincial gendarme command to investigate the allegations that PERSON had been killed and to identify the perpetrators . This stage of the investigation lasted until DATE . During this period , Major PERSON again asked ORG specifically to identify the CARDINAL persons who signed the report . He received the reply on DATE that the names were not found in the records and that the records had been burned in DATE with the result that the names of the personnel who were on operation in GPE at the time could not be determined . Major PERSON requested medical records and transfer details about PERSON from the Cizre district gendarmerie . Via a rogatory request , he obtained statements from the applicant , ORG , Captain PERSON and the CARDINAL officers previously named as having served in GPE special operations at the relevant time . They stated , inter alia , that PERSON had not been delivered to them and that code names were not permitted , though Captain PERSON was noted as recognising his signature on the incident report of DATE . On the basis of this information , Major PERSON found in his report of CARDINAL DATE , that it was established that PERSON had been taken to GPE mountain to locate ORG shelters by teams from the CARDINALrd gendarme border brigade special operations group command and that he had escaped on DATE . The statements of ORG and PERSON were referred to as supporting this . The report noted that there were no interrogation records concerning PERSON though it appeared that Captain PERSON had transferred him to ORG . The report concluded that it was not possible to establish the identities of the suspects , the identities of the persons of the report not being ascertainable due to changes in military personnel , the failure to keep records properly and the destruction of records . In those circumstances , a prosecution could not be brought . The provincial governor accepted this conclusion and the proceedings were terminated .","The investigation documents concerning the enquiries by the GPE public prosecutor and Major PERSON , the gendarme officer appointed by ORG were submitted to the Commission by the Government on DATE , after the Commission had closed the taking of evidence and invited the parties to submit their oral observations . These documents included information about the possible identification of special operations group officers involved in the PERSON incident . Though the names of CARDINAL officers were known to the investigating authorities in DATE , the Government did not bring them to the attention of the ORG or its Delegates who could have taken the decision to call them to give oral evidence . The ORG found that in failing to provide it with this information during the taking of evidence , the ORG had fallen short of its obligations under former LAW ( a ) of the LAW to furnish all the necessary facilities to the Commission in its task of establishing the facts of the case .","PERSON was apprehended on DATE by the security forces during an armed clash with ORG terrorists . During interrogation , PERSON said that he knew certain hideouts used by ORG members in the GPE mountains . Upon this information , a search team went to the mountains with PERSON . This area was used frequently by the ORG . A clash started between the ORG and the security personnel . Benefiting from this clash , PERSON escaped and was lost immediately in the near darkness . He was not handcuffed and knew the area very well . It was very probable that he re - joined the ORG following his escape . He would have been able to run even though his leg was injured .","As PERSON escaped from the security forces , the Government stated that it was not for them to prove that he is still alive and they can not give an explanation for his whereabouts .","The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .","Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a government employee to subject CARDINAL to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) or to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) .","The authorities\u2019 obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutor \u2019s offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .","If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor \u2019s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .","A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .","In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .","If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants ( sometimes referred to as LAW ) , which restricts the public prosecutor \u2019s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect \u2019s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .","An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .","By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor \u2019s authority .","If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a \u201c military offence \u201d under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .","The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person \u2019s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender \u2019s superior .","Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .","Article CARDINAL \u00a7 \u00a7 CARDINAL and CARDINAL of the LAW provides :","\u201c All acts or decisions of the authorities are subject to judicial review ...","The authorities shall be liable to make reparation for all damage caused by their acts or measures . \u201d","That provision establishes the ORG \u2019s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people \u2019s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .","DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph DATE above ) , provides :","\u201c No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . \u201d","Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant \u2019s guilt ( Article CARDINAL ) .","However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an \u201c administrative act \u201d or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim \u2019s right to bring an action against the authority on the basis of its joint liability as the official \u2019s employer ( LAW ) ."],"violated_articles":["13","2","3","5"],"violated_paragraphs":["5-1","5-3","5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-94401","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2009,"docname":"CASE OF SANDOR LAJOS KISS v. HUNGARY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in LANGUAGE .","In DATE the Pest Central District Court found the applicant , a recidivist offender , guilty of attempted blackmail and plunder and sentenced him to DATE imprisonment . On appeal , ORG , on CARDINAL DATE , re - characterised his actions as offences of \u201c taking the law into one \u2019s own hands \u201d , attempted aggravated assault and a violation of personal liberty , but reduced his sentence to DATE imprisonment .","NORP In DATE the applicant was charged with aggravated assault . In the ensuing proceedings the applicant was assisted by court - appointed defence counsel .","After holding CARDINAL hearings , ORG found the applicant guilty as charged on DATE . ORG took account of the protraction of the proceedings as a mitigating factor and sentenced him to CARDINAL years\u2019 imprisonment . ORG relied on documentary evidence , the opinion of a forensic medical expert and the testimony of several witnesses as well as the applicant .","The applicant appealed , seeking acquittal on the ground that the judgment was ill - founded . ORG notified the applicant \u2019s lawyer that it would determine the appeal at deliberations in camera . In reply , the lawyer put forward his arguments in detail and requested the court to hold a public hearing . He asserted that the court should hear further witnesses in order to establish the facts fully .","On DATE ORG held deliberations in camera and upheld the applicant \u2019s conviction . The applicant , his lawyer and the prosecution were not present . ORG reviewed the entirety of the proceedings and upheld their lawfulness . Furthermore , it considered that the findings of fact by the first - instance court were not ill - founded within the meaning of section CARDINAL(CARDINAL ) of LAW , and were thus suitable for appellate review without taking further evidence . This consideration enabled the court to hold deliberations in camera , pursuant to section CARDINAL(CARDINAL ) of LAW , without the attendance of either the defence or the prosecution .","Act no . ORG of DATE on the [ New ] Code of Criminal Procedure provides , in so far as relevant , as follows :","\u201c ... ( CARDINAL ) An appeal may concern questions of fact or law . \u201d","\u201c ( CARDINAL ) The second - instance court shall base its decision on the facts as established by the first - instance court unless the first - instance judgment is ill - founded ....","( CARDINAL ) The first - instance judgment is ill - founded if :","a ) the facts have not been explored ;","b ) the first - instance court has failed to establish the facts or the findings of fact are deficient ;","c ) the findings of fact are in contradiction with the contents of the documents ;","d ) the first - instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact . \u201d","\u201c ... ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . \u201d","\u201c ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tan\u00e1cs\u00fcl\u00e9s ) , a public session ( nyilv\u00e1nos \u00fcl\u00e9s ) or a hearing ( t\u00e1rgyal\u00e1s ) . ... \u201d","\u201c ( CARDINAL ) The second - instance court shall hold a public session , if \u2013 the first - instance judgment being ill - founded \u2013 the complete and\/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .","( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... \u201d","\u201c ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned \u2013 ... the defendant and his lawyer of the public session . ... \u201d","\u201c ( CARDINAL ) In order to take evidence , a hearing ( t\u00e1rgyal\u00e1s ) ... shall be scheduled . \u201d","\u201c ( CARDINAL ) The court \u2019s final decision on the merits is susceptible to a [ ORG ] review ( fel\u00fclvizsg\u00e1lat ) if ...","c ) the decision has been adopted amidst procedural irregularities within the meaning of section CARDINAL(CARDINAL ) subparagraphs II to PERSON . \u201d"],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-c"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111421","languageisocode":"ENG","respondent":"HUN","branch":"CHAMBER","date":2012,"docname":"CASE OF TAT\u00c1R AND F\u00c1BER v. HUNGARY","importance":3,"conclusion":"Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lef\u00e8vre;Paulo Pinto De Albuquerque","text":["The applicants were born in DATE and DATE respectively and live in GPE .","On DATE the applicants exposed , in the course of an event which they considered a \u201c political performance \u201d \u2013 necessitated by what they perceived as a general political crisis in the country following the tumultuous events of DATE , several items of dirty clothing on a rope attached to the fence around ORG in GPE . They stated that the symbolic meaning of this expression was \u201c to hang out the nation \u2019s dirty laundry \u201d . The applicants spent TIME on the scene , during which time they answered some questions from journalists who appeared on the scene . Afterwards , the applicants left on their own motion .","On DATE , the website of the daily paper PERSON published a short article covering the incident , in which the applicants explained that the \u201c performance \u201d was meant to be provocative and for that reason had not been notified to the police . It was specified that the event had been prepared clandestinely , that only a few journalist had been invited and that no other protester had participated .","Subsequently the GPE V ORG fined each applicant MONEY ( ORG ) ( MONEY ) for the regulatory offence of abusing the right to peaceful assembly . It was considered that their act had constituted an \u201c assembly \u201d which should have been declared to the authorities DATE in advance .","The applicants complained about the decision of the GPE CARDINALth ORG without offering any particular arguments .","On DATE ORG upheld the police decision , finding that the applicants , in breach of the relevant legal provisions , had failed to notify the police of their \u2018 demonstration\u2019 and that the sanction imposed was proportionate to the gravity of the offence and adequate to motivate the applicants to abide by the law in the future . The court relied on the report of the police officer involved , the pictures recorded by the street cameras and the contents of the websites covering the incident .","On DATE the applicants requested that a hearing be held in the case . At the hearing of DATE the court heard the second applicant and the police officer . The first applicant did not wish to make a statement . The second applicant first made contradictory statements as to who had been notified of the event in advance , but finally confirmed , in reply to a question put by the judge , that an announcement of the event had been published on the website of the applicants\u2019 organisation . In their closing statements , counsel for the applicants claimed that the applicants had not invited anybody to the event and that they had wrongly assumed that their actions had been lawful .","Based on the evidence before it , ORG was satisfied that the event had been publicly announced and thus it had been an \u201c organised event \u201d falling within the scope of section CARDINAL of LAW ( as opposed to a cultural event as argued by the applicants ) , that the applicants had been aware that they should have notified the police of their performance and that the fine was necessary to prevent the applicants from further breaches of the law . It therefore upheld the decision of DATE .","The decision of DATE was served on DATE .","Act No . III of DATE on ORG ( \u201c the LAW \u201d ) provides as follows :","\u201c ( CARDINAL ) In the framework of the exercise of the right to assembly , peaceful gatherings , marches and demonstrations ... may be held where the participants may freely express their opinion .","( CARDINAL ) The participants of an assembly are entitled to make their jointly formed position known to all interested parties ... \u201d","\u201c The following shall not be covered by the Act :","a ) meetings falling within the ambit of LAW ;","b ) religious services , events and processions organised in the premises of legally recognised churches ;","c ) cultural and sport events ;","d ) events related to family occasions . ... \u201d","\u201c The organisation of an assembly to be held in public shall be notified to the police department having jurisdiction over the venue of the assembly DATE in GPE to ORG \u2013 a minimum of DATE prior to the planned date of the assembly . The obligation to notify the police lies with the organiser of the assembly . \u201d","\u201c If the holding of an assembly subject to prior notification seriously endangers the proper functioning of the representative bodies or the courts , or the circulation of traffic can not be secured by another route , the police may ban the holding of the assembly at the place or time indicated in the notification , within TIME of the receipt of the notification . \u201d","Act No . ORG of DATE on Administrative Offences ( as in force at the relevant time ) provides as follows :","\u201c Anyone who organises or holds a gathering , march or demonstration subject to notification without notification or the provision of prior information of the planned new date , or despite a prohibiting decision of the police , may be punished by a fine of MONEY ... \u201d","According to decision no . PERSON . ( XI.CARDINAL.)AB of ORG :","\u201c [ ... T]he ORG holds that the enforcement of the fundamental constitutional right of assembly should be protected not only from undue interferences by the ORG but also from others , such as persons who dislike a certain demonstration or hold a counterdemonstration , as well as other persons who disturb public order . In other words , the ORG also has positive obligations in guaranteeing the enforcement of the right of assembly . The judgments of ORG in cases related to the right of assembly support this view . ...","It follows that the authorities are even allowed to use force , where needed , in order to secure the holding of lawful assemblies , and they shall prevent others from disturbing such assemblies . ...","... The necessity of the obligation of notification to assemblies to be held on public LOC is justified by the fact that ... such LOC constitute an area , road , street or square with unlimited access for everyone . This means that both the participants of the assembly and everyone else who does not participate should have equal access to the public ground . ... The ORG \u2019s obligation to respect and protect fundamental rights is not limited to abstaining from violating such rights but includes the obligation of guaranteeing the conditions necessary for their enforcement ... ; in order to prevent a potential conflict between CARDINAL fundamental rights ... the authority should be statutorily empowered to ensure the enforcement of both fundamental rights ... This requirement justifies the obligation of notifying the authority in advance of the assembly to be held on public ground ...","... The aim and the agenda of the assembly are pieces of information necessary for the authority partly for the assessment of whether the planned assembly is to be prohibited on the ground of seriously endangering the operation of the representative organs or of the courts , or on the ground of causing disproportionate prejudice to the order of traffic ... , and partly for determining the probability of [ any incident occurring during the event warranting police intervention or dispersal ] . ...","... The failure to notify the authorities of an assembly DATE or the holding of an assembly in a manner significantly different from that specified in the notification \u2013 can not be interpreted as an insignificant administrative omission . Such a failure deprives the authority of the opportunity to assess whether the planned assembly would seriously disturb the operation of the representative organs or of the courts , or the order of traffic . To impose no sanction on holding the assembly at a time , location , or route other than that notified would make it useless to require a notification and would allow for abusing the right of assembly ... \u201d","According to decision no . CARDINAL\/CARDINAL . ( II.CARDINAL.)AB of ORG :","\u201c ... The aim of assemblies held on the basis of the right to assembly is to enable the citizens exercising their right to assembly to form joint opinion and to share their views with others or jointly express those views . \u201d","According to Decision no . CARDINAL\/CARDINAL . ( ORG of ORG :","\u201c III . [ The term \u2018 ORG ] , as used in the LAW ... , refers to joint expressions of opinions within fixed time - limits . ... The bodies applying the law must assess whether the notification pertains to a peaceful , joint expression of opinions falling under the scope of [ LAW ] or to a different use of the public area .","IV . ... In DATE \u2019s constitutional democracies , the primary purpose of assemblies held on public ground is the joint representation and demonstration of the opinions and views already formed . The main connection between freedom of expression and freedom of assembly is the joint , public expression of the opinion . The significance of the right of assembly as a communication right is increased by the fact that , in contrast with the press , it ensures for everyone the right to participate directly , without access barriers , in forming the political will . ...","... Several types of assemblies on public ground may fall within the category of peaceful spontaneous assemblies . Indeed , spontaneous assemblies are not generated in a previously planned and arranged manner since they are the result of the actions of several persons who act , more or less , independently . ...","In the system of [ LAW ] , assemblies not requiring notification include , on the one hand , events excluded from the scope of [ the LAW ] ( events of electoral , religious , cultural , sport or family nature ) . On the other hand ... it is not necessary to file a notification of assemblies falling under [ the LAW ] . but not held on public ground ... Furthermore , LAW of [ the LAW ] does not apply to spontaneous assemblies held without prior organisation . Namely , the provision at issue requires the notification of \u201c organising an assembly \u201d to be held on public ground , and the statutory obligation is imposed on the organiser .","... The notification obligation ... forms a constitutional restriction on the right of assembly . This statutory provision is justified , on the one hand , by the need to have the public order secured by the police ... The notification and its confirmation by the police is a guarantee that the police shall implement the necessary tasks related to the security of the event . ... \u201d","The Guidelines on Freedom of Peaceful Assembly Adopted by ORG at its CARDINALrd Plenary Session ( GPE , DATE ) provide as follows :","\u201c ... For the purposes of the Guidelines , an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose ...","An assembly , by definition , requires the presence of CARDINAL persons . \u201d"],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-66713","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2004,"docname":"ROSENQUIST v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , ORG , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr ORG , a lawyer practising in PERSON . The respondent Government are represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","I.","In DATE the applicant was carrying out his business through some private limited companies in GPE . He emigrated from GPE to GPE on DATE .","As to the income DATE , the applicant failed to fulfil his obligation to file his tax return . Thus , in DATE ORG in ORG made a discretionary assessment , that the applicant for DATE had had MONEY ( SEK ) as income from employment , SEK CARDINAL as income from capital , and that his taxable property amounted to SEK CARDINAL,CARDINAL,CARDINAL . At the same time , pursuant to LAW ( Taxeringslagen CARDINAL:CARDINAL ) a tax surcharge of SEK CARDINAL,CARDINAL was imposed on the applicant , which he did not appeal against .","In DATE , a search was carried out at the premises of the applicant \u2019s auditor . In this connection information was found , which indicated that the applicant \u2019s taxable income for DATE had been considerably larger than ORG has assessed in DATE . Accordingly , ORG carried out an additional assessment . By decision of DATE the applicant \u2019s income from employment , capital , and taxable property was increased by respectively SEK CARDINAL,CARDINAL , SEK CARDINAL,CARDINAL,CARDINAL , and SEK CARDINAL , resulting in an additional tax calculated at SEK CARDINAL . By decision of CARDINAL DATE an additional tax surcharge was imposed pursuant to chapter DATE , section CARDINAL of LAW , amounting to SEK CARDINAL,CARDINAL equal to MONEY of the additional income tax levied .","The applicant appealed against ORG decision of CARDINAL DATE to ORG in GPE ( GPE i GPE L\u00e4n ) , which rejected his appeal by judgment of CARDINAL October CARDINAL . On DATE , ORG in GPE ( ORG ) , confirmed this decision . Leave to appeal was refused by ORG on DATE .","II .","In the meantime , by indictment of CARDINAL DATE the applicant was charged inter alia pursuant to sections CARDINAL and CARDINAL of LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) with aggravated tax fraud in that he had failed to file his tax return for DATE allegedly with the intent of evading tax .","On DATE before ORG in GPE ( PERSON ) the prosecution applied for the detention of the applicant on remand in absentia . The applicant , being absent but represented by counsel , applied for the criminal trial against him to be dismissed by invoking LAW of LAW no . CARDINAL to the LAW . By decision of DATE the court found against the applicant .","On DATE , on appeal , ORG ( NORP \u00f6ver GPE ock Blekinge ) upheld the decision and ORG ( H\u00f6gsta Domstolen ) refused the applicant \u2019s request for leave to appeal on DATE .","The applicant reported himself voluntarily to the police in ORG in DATE , whereupon the criminal trial against him commenced before ORG in GPE .","Having heard inter alia the applicant \u2019s auditor as a witness , by a judgment of DATE ORG in PERSON convicted the applicant of aggravated tax fraud as it found it established that he had failed to file his tax return for the income DATE with the intent of evading part of the tax due , amounting in total to SEK CARDINAL,CARDINAL,CARDINAL . The applicant was sentenced to DATE imprisonment .","On appeal , by judgment of DATE ORG upheld the conviction but increased the sentence to CARDINAL years\u2019 imprisonment .","Leave to appeal against the judgment to ORG was refused on DATE .","Taxes and tax surcharges","Income tax and property tax are determined by the county tax authorities , to which taxpayers are obliged to submit information relevant to the assessment of taxes . For the purpose of securing timely , sufficient and correct information , there are provisions stipulating that , under certain circumstances , the tax authorities may impose administrative sanctions in the form of special charges - tax surcharges and delay charges DATE on the taxpayer . The said charges were introduced into NORP tax legislation in DATE ( up till then a taxpayer \u2019s submission of incorrect information could only be sanctioned within the penal system ) . According to the preparatory notes ( Government PERSON ) the main purpose of the reform was to create a more effective and fairer system of penalties than the old one , which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution . Unlike sanctions for tax offences , the administrative charges are determined solely on objective grounds , without regard to any form of intent or negligence on the part of the taxpayer .","A tax surcharge is imposed on a taxpayer in CARDINAL situations : if he or she , in a tax return or in any other written statement , has submitted information of relevance to the tax assessment which is found to be incorrect ( chapter CARDINAL , section CARDINAL of LAW ) or if , following a discretionary assessment , the tax authority decides not to rely on the tax return ( chapter CARDINAL , LAW ) . It is not only statements expressly submitted that may lead to the imposition of a surcharge ; concealment , in whole or in part , of relevant facts may also be regarded as incorrect information . However , incorrect claims are not penalised ; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof , no surcharge is imposed . The burden of proving that the information is incorrect lies with the tax authority . A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority can not base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so ( chapter CARDINAL , section CARDINAL ) . In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time - limit . The surcharge amounts to MONEY of either the income tax which ORG would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment ( the corresponding provisions on value - added tax and employer \u2019s contributions stipulate that the surcharge equals MONEY of the supplementary tax levied on the taxpayer . In certain circumstances , the rates applied are MONEY or MONEY respectively , for the various types of tax ) .","Notwithstanding the fact that the taxpayer has furnished incorrect information , no tax surcharge will be imposed in certain situations , for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer , when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities , such as a certificate of income from the employer , or when the taxpayer has corrected the information voluntarily ( chapter CARDINAL , section CARDINAL ) .","Moreover , in certain circumstances , a tax surcharge will be remitted . Thus , taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age , illness , lack of experience or comparable circumstances . The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances , or when it would be manifestly unreasonable to impose a surcharge ( chapter CARDINAL , section CARDINAL ) . The phrase \u201c the nature of the information \u201d primarily covers situations where a taxpayer has had to assess an objectively complicated tax question . According to the preparatory documents ( Government PERSON , p. CARDINAL ) , the expression \u201c manifestly unreasonable \u201d refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons . If the facts of the case so require , the tax authorities must have regard to the provisions on remission , even in the absence of a specific claim to that effect by the taxpayer ( chapter CARDINAL , section CARDINAL ) . In principle , however , it is up to the taxpayer to show due cause for the remission of a surcharge .","If dissatisfied with a decision concerning taxes and tax surcharges , the taxpayer may , before the end of DATE after DATE , request the tax authority to reconsider its decision ( chapter CARDINAL , sections TIME ) . A decision concerning surcharges may also be reviewed at the taxpayer \u2019s request after the expiry of this time - limit , if the decision on the underlying tax issue has not yet become final ( chapter CARDINAL , section CARDINAL ) . The tax authority may also , on its own motion , decide to review its own earlier decision . A review to the taxpayer \u2019s disadvantage must be made before DATE following the assessment year unless the taxpayer , inter alia , has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information , in which case the time - limit normally expires at DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL - CARDINAL ) .","The tax authority \u2019s decision may also be appealed against to a county administrative court . As with requests for reconsideration , an appeal has to be lodged before DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL ) , unless it concerns a tax surcharge based on a tax decision that has not yet become final ( chapter DATE , section CARDINAL ) . Following the appeal , the tax authority must reconsider its decision as soon as possible and , if it decides to vary the decision in accordance with the taxpayer \u2019s request , the appeal will become void ( chapter DATE , section CARDINAL ) . If the decision is not thus amended , the appeal is referred to the county administrative court . If special reasons exist , an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment ( chapter DATE , section CARDINAL ) . Further appeals lie to an administrative court of appeal and , subject to compliance with the conditions for obtaining leave to appeal , ORG .","A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge , which is reduced correspondingly ( chapter CARDINAL , LAW ) . The tax surcharge may , however , be challenged separately , if grounds for reduction or remission exist ( see above ) .","Decision concerning taxation can also be reconsidered on the tax authorities\u2019 own initiative . A review to the taxpayer \u2019s disadvantage must be made before DATE following DATE . However , in some situation such a review may be made until DATE following DATE , so - called additional assessment ( eftertaxering ) . This is the case , inter alia , if the taxpayer has provided incorrect information during the course of the tax proceedings or has failed to file a tax return despite the obligation to do so ( chapter CARDINAL , sections CARDINAL of LAW ) . An additional assessment shall only be made if an amount of some importance is at stake . When undertaking an additional assessment the tax authority has to decide about additional tax , i.e. tax that is imposed after the imposition of final tax has been concluded . It may also decide to impose a tax surcharge according to the principles above .","Criminal law provision","A taxpayer who has not fulfilled his obligation to submit correct and relevant information to the tax authorities or who , with the object of evading tax , has failed to file a tax return or a similar document may be subjected to a criminal charge according to provisions laid down in LAW . For the taxpayer to be convicted on such a charge it has to be established that the failure to submit correct information or to file a tax return is the result of criminal intent or gross negligence on his part . A charge under the provisions of LAW is brought in accordance with the rules governing criminal proceedings in general , which means among others things that a taxpayer can only be convicted upon prosecution and trial by the general courts and that the burden of proof is on the prosecutor . It follows from sections DATE of LAW that a taxpayer who intentionally submits incorrect information in writing to the tax authorities or who fails to file a tax return , thereby causing risk of an erroneous taxation to his advantage , shall be sentenced to a penalty ranging from a fine for petty offences to imprisonment for a maximum of DATE for cases of aggravated tax crime ( grovtt skattebrott ) .","The fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings . Moreover , a decision to impose a tax surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge . When considering the penal sanction , however , the general courts are supposed to pay attention to the fact that a surcharge has been imposed ( cf . Government PERSON , pp CARDINAL and CARDINAL ) . A criminal charge should be brought against a taxpayer only if the evaded tax is of some significance . According to an agreement between ORG ( Riks\u00e5klagaren ) and ORG ( PERSON ) the tax authorities shall not normally inform the prosecutor unless the evaded tax amounts to CARDINAL per cent of the basic amount for national security purposes ( which in DATE amounted to SEK CARDINAL,CARDINAL ) . In addition , section CARDINAL provides that an indictment shall not be brought for a petty tax offence , unless there are special reasons therefore .","Tax surcharges and the Convention in NORP case law","In a judgment delivered on DATE ORG considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings ( case no . B CARDINAL - CARDINAL , published in Nytt juridiskt arkiv ( ORG ) DATE , p. CARDINAL ) . Having noted that , under NORP law , a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act , ORG went on to examine the matter under LAW . It first considered , in the light of ORG case - law , that there were weighty arguments for regarding LAW as being applicable under its criminal head to proceedings involving a tax surcharge . Even assuming this to be the case , it held , however , that the principle of ne bis in idem , as set forth in LAW no . CARDINAL to the LAW , did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied as it was a matter of CARDINAL different offences . It underlined in this connection that the imposition of tax surcharges requires neither intent nor negligence , while in order to be convicted of tax fraud it must be established that the accused had a criminal intent .","In a judgment delivered on DATE ORG considered whether the imposition of a tax surcharge in tax proceedings could be upheld following a person \u2019s conviction of a tax offence in criminal proceedings ( case no . DATE , published in PERSON ( R\u00c5 ) DATE , ref CARDINAL ) . ORG recalled inter alia :","\u201c that taxation in GPE is largely based on information given by the individual and certification by him or her of information received from other sources . The purpose of the tax surcharge is to emphasise , inter alia , that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information . In principle , carelessness is not acceptable . Furthermore , the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed . In other words , the taxpayer is required to have a certain knowledge of the tax rules \u201d .","ORG concluded that the applicant had not been punished twice for the same offence as prohibited by LAW no . CARDINAL to the LAW , notably in that :","\u201c a tax surcharge is a general and standardised sanction the purpose of which is , inter alia , to prevent inaccuracy when complying with the legal obligation to complete a tax return . Provided there is no ground for remission it is always set at CARDINAL of CARDINAL fixed percentages . It is imposed regardless of intent or negligence . If a person intentionally submits incorrect information or fails to file a tax return , an additional sanction may be imposed for tax fraud . The intent , which the prosecutor must prove , is CARDINAL of the essential elements of this offence . The offence leads either to imprisonment or , having regard to the personal circumstances of the accused , some of the other possible punishments . Thus , in comparison with the grounds required for imposing a tax surcharge , in order to convict an accused of tax fraud , another essential requirement must be fulfilled . Accordingly , in the sense of ORG , it is a question of CARDINAL different offences . \u201d","Recently , ORG ) , which is composed of CARDINAL judges from the CARDINAL highest courts in GPE , scrutinised a Government PERSON proposing amendments to LAW and commented in this connection on the principle of ne bis in idem . The ORG considered , inter alia , in the light of the decision GPE and GPE v. GPE ( dec . ) , nos . CARDINAL and CARDINAL , decision of DATE , ORG CARDINAL-VI , that is was reasonable to assume that the fundamental conditions for tax surcharges and intentional tax offences differed in such a way that no conflict with LAW no . CARDINAL to the LAW would arise ( opinion of DATE of ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-80083","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2007,"docname":"CASE OF KOZIMOR v. POLAND","importance":4,"conclusion":"Violation of Art. 8","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lived in GPE .","On DATE the applicant was arrested by the police . On DATE ORG ( S\u0105d Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed a homicide .","Subsequently , the applicant 's pre - trial detention was prolonged on several occasions , in particular at the hearing held on DATE .","On DATE ORG ( S\u0105d Wojew\u00f3dzki ) convicted the applicant of homicide and sentenced him to DATE imprisonment .","On DATE ORG quashed the impugned judgment and remitted the case .","On DATE ORG ( PERSON ) decided to prolong the applicant 's pre - trial detention . The court gave the following reasons :","\u201c Prolongation of the applicant 's detention on remand is justified by the fact that the applicant has been accused of homicide . \u201d","On DATE ORG dismissed the applicant 's request for release . The reasons of the decision are as follows :","\u201c [ The applicant ] has been accused of having committed [ a homicide ] and the original reasons for keeping him in detention are still valid . \u201d","NORP On DATE the ORG further prolonged the applicant 's pre - trial detention . The court found that keeping the applicant in detention was necessary because he had been charged with homicide and the trial court had started the process of obtaining expert evidence .","On DATE the trial court held the first hearing . Subsequently , CARDINAL hearings were held .","On DATE and CARDINAL DATE the applicant 's pre - trial detention was prolonged as the courts considered that the necessity to secure the proper conduct of the proceedings and the severity of the anticipated penalty justified keeping him in custody .","On DATE ORG dismissed the applicant 's appeal against the decision of CARDINAL DATE .","The applicant submits that neither he nor his lawyer was informed about the majority of scheduled court sessions at which his detention on remand was prolonged and that he was not allowed to attend any of these sessions .","On DATE the ORG gave judgment . The court convicted the applicant and sentenced him to DATE imprisonment . The applicant appealed .","On DATE ORG ( FAC ) amended the impugned judgment . The court sentenced the applicant to DATE imprisonment . The applicant lodged a cassation appeal with ORG ( S\u0105d Najwy\u017cszy ) .","On DATE ORG dismissed his cassation appeal as being manifestly ill - founded .","On DATE ORG sent to the applicant , who at that time had been detained on remand in ORG , an application form and accompanying documents in reply to his letter in which he had notified his intention to lodge a complaint with ORG . The ORG 's envelope delivered to the applicant bears the stamp : ORG ( PERSON w PERSON ) and a handwritten note : censo . , PERSON ( cenzu . CARDINAL ) .","The envelope from the Chancellery of the ORG of GPE of DATE bears the same stamp as above and a handwritten note : censored , CARDINAL [ DATE ( cenzurowano , CARDINAL.CARDINAL.CARDINAL ) and an illegible signature .","NORP The applicant also submitted that his correspondence with his courtappointed lawyer had been censored by the authorities of ORG . He provided an envelope addressed to his lawyer which bears the following stamps : ORG ( PERSON w PERSON ) , a hand - written note : censored , CARDINAL [ July CARDINAL]CARDINAL ( cenzurowano , CARDINAL ) and an illegible signature . The envelope was posted on DATE . The second envelope , also addressed to his lawyer , bears the same stamp of ORG , a date : CARDINAL and an illegible signature .","The third envelope was addressed to the applicant by his lawyer . The envelope , posted on DATE , bears the following stamps : ORG PERSON GPE ) , ORG , CARDINAL , and an illegible signature .","The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled \u201c preventive measures \u201d ( \u015brodki zapobiegawcze ) . Article CARDINAL \u00a7 CARDINAL provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand .","A more detailed rendition of the relevant domestic law provisions is set out in the ORG 's judgments in GPE v. GPE [ ORG ] , no . GPE , \u00a7 CARDINAL , ORG CARDINALXI , and PERSON v. GPE , no . CARDINAL\/CARDINAL , \u00a7 \u00a7 CARDINAL and CARDINAL , CARDINAL DATE .","Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( \u201c the DATE Code \u201d ) which entered into force on DATE . Article CARDINAL ( CARDINAL ) of the DATE Code provides that convicted persons are entitled to uncensored correspondence with the ORG authorities and with the ORG . The relevant part of LAW provides as follows :","\u201c Convicts ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . \u201d","Pursuant to LAW ,","\u201c Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison .... \u201d","LAW provides that a person detained on remand has a right to communicate freely with his lawyer . A prosecutor may order the control of the detainee 's correspondence with his lawyer ; however , such measure can not be maintained longer than DATE after the detention order has been imposed .","For a more detailed rendition of the relevant domestic law provisions , see the ORG 's judgments in GPE v. GPE , no . CARDINAL , \u00a7 CARDINAL , CARDINAL DATE and PERSON v. GPE , no . CARDINAL , \u00a7 CARDINAL , CARDINAL DATE ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-67248","languageisocode":"ENG","respondent":"UKR","branch":"CHAMBER","date":2004,"docname":"CASE OF TREGUBENKO v. UKRAINE","importance":3,"conclusion":"Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to the right of access to a court;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"","text":["The applicant was born in DATE and lives in the city of GPE , GPE .","As of DATE the applicant ran a business in the city of GPE , GPE , keeping a part of his profit in cash .","By LAW of DATE , the bank - notes of CARDINAL and MONEY issued in DATE ceased to circulate and had to be exchanged for the notes of the same nomination issued in DATE . The Decree of the Cabinet of Ministers of the same date specified the procedure of exchange , providing , inter alia , that a special sub - commission ( hereinafter the exchange commission ) should be created within the executive committees of GPE to decide on the exchange of bank - notes . The exchange commissions were empowered to allow or refuse exchanges fully or in part , depending on the legality of the source of income being proved .","In DATE the applicant put the amount of MONEY in CARDINAL notes into an account at LOC of ORG . At the same time the applicant applied to the GPE exchange commission for an exchange of that sum . On DATE the commission ( ORG \u043a\u043e\u043c\u0438\u0441\u0441\u0438\u0438 ORG \u043d\u0430\u0440\u043e\u0434\u043d\u044b\u0445 \u0434\u0435\u043f\u0443\u0442\u0430\u0442\u043e\u0432 \u043f\u043e \u043e\u0431\u043c\u0435\u043d\u0443 \u0434\u0435\u043d\u0435\u0436\u043d\u044b\u0445 \u0437\u043d\u0430\u043a\u043e\u0432 ) refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of income , and limited the exchange to MONEY . The remaining sum of MONEY was not compensated .","The applicant challenged that decision before the higher exchange commission of GPE . On DATE the latter upheld the decision of the GPE exchange commission .","The Government submit that , in accordance with the resolution of the Cabinet of Ministers of the GPE no . CARDINAL of DATE , which regulated the procedure for the exchange of bank - notes , this decision of CARDINAL DATE was final .","At the same time ORG checked the legality of the applicant 's business and found no irregularities .","On DATE the applicant instituted proceedings in ORG against the exchange commission for its refusal to exchange the full sum of MONEY .","On DATE ORG ( ORG \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u043d\u0430\u0440\u043e\u0434\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430 ) rejected the claim for lack of jurisdiction .","The applicant appealed to ORG against the judgment of ORG . On DATE the former quashed the judgment of the latter and remitted the case for further consideration .","On DATE ORG ( ORG \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0433\u043e \u043d\u0430\u0440\u043e\u0434\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430 ) found for the applicant and ordered the executive committee of ORG to exchange all the money deposited by the applicant ( MONEY ) .","On DATE ORG ( ORG \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430 ) upheld this judgment .","On DATE the judgments of CARDINAL DATE and DATE were quashed by the ORG of ORG ( \u041f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u0435 ORG \u043e\u0431\u043b\u0430\u0441\u0442\u043d\u043e\u0433\u043e \u0441\u0443\u0434\u0430 ) .","On DATE ORG of ORG of GPE ( ORG ) quashed the latter judgment and upheld the judgments of DATE and DATE in the applicant 's favour . This judgment was final .","The judgment was not fully enforced for DATE . On various occasions the applicant lodged claims to have the awarded sum adjusted to the inflation rate . On DATE , DATE , CARDINAL DATE and DATE , ORG granted the claims due to the longstanding non - enforcement of the judgment in the applicant 's favour . The latter court decision increased the amount to UAH CARDINAL,CARDINAL.CARDINAL .","By letter of CARDINAL DATE , the GPE City Mayor requested ORG to intervene by lodging an appeal for supervisory review ( protest ) against the judgment of ORG of GPE given in favour of the applicant .","On DATE the Chairman of the ORG ordered the suspension of any further enforcement of the judgement until the supervisory review appeal had been considered .","On DATE the Deputy Chairman of ORG of GPE lodged a supervisory review appeal with the Plenary of ORG ( \u041f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u0430 \u041f\u043b\u0435\u043d\u0443\u043c\u0443 ORG ) against the judgments in the applicant 's favour .","On DATE the Plenary allowed the appeal and quashed the said judgments , upholding the initial judgment of ORG of DATE to reject the applicant 's claim for lack of jurisdiction . The ORG decided that , since the exchange of banknotes was regulated by LAW of DATE ( paragraph CARDINAL ) which provided for the non - judicial review of the decisions of exchange commissions , the dispute was outside the courts ' jurisdiction under the legislation in force in DATE .","The GPE Mayor then requested ORG to reverse the enforcement of the quashed judgment and to recover from the applicant the money which had been already paid to him ( PERCENT of the sum originally awarded ) . According to the Government , the court did not examine that request because , under an agreement between the parties , the applicant returned the money which had been paid to him .","By a letter of CARDINAL DATE , ORG informed the applicant that it had no jurisdiction to review the decisions of the ordinary courts .","By a resolution of DATE , the proceedings on the applicant 's case were closed due to the quashing of the judgment of DATE by the Plenary of ORG .","At the material time , LAW of LAW subjected final and binding judgments to a possible supervisory review . When a final judgment was given by ORG , it could be appealed under the supervisory review procedure by the Chairman of ORG , ORG and his or her Deputies ( LAW . The judgments of the Plenary were not subject to any further review .","The supervisory review procedure was repealed in DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-110871","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2012,"docname":"R.W. AND OTHERS v. SWEDEN","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska","text":["The applicants , PERSON and her twin daughters , are NORP nationals who were born in DATE and DATE . They were represented before the ORG by Mr J. Nystr\u00f6m , a lawyer practising in PERSON .","The first applicant arrived in GPE from GPE , GPE on DATE and applied for asylum on DATE . She submitted before ORG ( Migrationsverket ) that she had been subjected to an attempted female genital mutilation ( ORG ) or possibly to an initiation to the Mungiki sect by friends of her former boyfriend .","In DATE the applicant had allegedly run away from home to marry her boyfriend , with whom she had been in a relationship for DATE . The boyfriend , who belonged to the NORP sect , had taken her to see an old man who had performed some sort of ritual . She did not know if the ritual had been performed in order for them to get married or if it had been an initiation to the Mungiki group . After the ritual her boyfriend had taken her to a friend \u2019s home and subsequently left the house . His friends had told her that they were going to perform ORG on her . When she refused to cooperate , they had beaten and raped her . They had been interrupted by neighbours who had heard her scream , but the perpetrators had told her that she would not get away . After the incident she had returned to her family home and told her mother about the incident . Her mother had urged her to report the perpetrators , but she had been afraid to do so as the boyfriend \u2019s clan had great influence on the police and authorities . Instead she had moved to a friend \u2019s home in PERSON shortly after the incident and had subsequently left the country , due to her fear of being found by her boyfriend . She feared that she would be killed or persecuted by her boyfriend or other members of the PERSON group as she had refused ORG and had run away .","Shortly after her arrival in GPE , the applicant met a man and became pregnant . The man , who was later deported from GPE , did not want to take any responsibility for the applicant or his children .","On DATE ORG questioned the applicant \u2019s credibility and rejected the request for asylum . ORG noted that ORG was prohibited by law in GPE , but was still practised , inter alia , by the Mungiki sect . It further noted that women at risk of being subjected to ORG often did not receive sufficient protection . However , the applicant had stated that her mother opposed female genital mutilation , and that she had urged the applicant to report the perpetrators to the police . Furthermore , the applicant had not known the purpose of the ritual to which she had been subjected and it was therefore found unlikely to have been an initiation to the Mungiki sect . It was noted that the applicant \u2019s boyfriend had not searched for her , despite her claim that he knew where she was . ORG found that the applicant would be able to seek protection from the NORP authorities and her own family . According to her own information , ORG was no longer practised by her people , the NORP .","On DATE the second and third applicants were born .","The applicant appealed against the ORG \u2019s decision to ORG ( Migrationsdomstolen ) and added that she had given birth to CARDINAL children out of wedlock and would be regarded as a prostitute in GPE . She submitted that she was no longer in contact with her mother , and did not know how her mother would react to the applicant having children . She had travelled to GPE by plane via another NORP country , but did not know which . She had not carried a passport .","On DATE ORG rejected the applicant \u2019s appeal and upheld the ORG \u2019s decision . The court found reason to question the applicant \u2019s story , in particular with regard to her identity and her travel route to GPE . This affected her overall credibility . Her account of the alleged incident was considered vague . She had not known whether the alleged ritual was an initiation or a wedding ceremony , and her description of the ritual contradicted country information . The court considered that it was not likely that the applicant had been married or initiated through the alleged ritual . She was considered to have been subjected to a criminal offence performed by private actors and such criminal activity was predominantly an issue for the NORP authorities . Referring to relevant country information , the court found that the police were taking measures to control the NORP sect . The applicant had failed to demonstrate that the domestic authorities were not willing or able to protect her . It was furthermore noted that ORG was not performed by her people , and that her family opposed the tradition .","On DATE ORG ( Migrations - \u00f6verdomstolen ) refused leave to appeal .","An application for asylum was also submitted on behalf of the second and third applicants . It referred to their mother \u2019s involvement with the Mungiki sect and stated that they were at risk of ORG if deported to GPE . It was also submitted that they would be at risk of ill - treatment as they had been born out of wedlock .","On DATE ORG rejected the second and third applicants\u2019 request for asylum . ORG referred to its decision regarding the first applicant and found that it was not plausible that they would be at risk of ORG and ill - treatment on return to GPE .","On DATE ORG rejected the second and third ORG appeal and upheld the ORG \u2019s decision .","On DATE ORG refused leave to appeal .","The provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utl\u00e4nningslagen , GPE ) .","LAW , LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE .","According to LAW , section CARDINAL the term \u201c refugee \u201d refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , membership of a particular social group , religious or political beliefs , grounds of gender , sexual orientation and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By \u201c an alien otherwise in need of protection \u201d is meant , inter alia , a person who has left the country of his or her nationality because of well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .","As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , section CARDINAL ) .","NORP country information ( NORP Landinfo , Report GPE : Mungiki \u2013 Abusers or abused ? , DATE ) describes the PERSON group as follows .","\u201c [ T]he Mungiki movement [ is ] the largest and best known of the organised armed criminal , political and religious groups in GPE , with a large following among the PERSON . PERSON operates primarily in the GPE slums , in LOC and in LOC . Although PERSON offers poor residents in slum areas protection and social services , extortion and violence tend to constitute their mode of operation . PERSON human rights violations perpetrated against civilians , adversaries and defecting members are attributed to them . The NORP authorities have not succeeded in their attempts to limit PERSON \u2019s influence or abuses , despite recent crack downs ... \u201d","The Mungiki movement is also reportedly \u201c encouraging , demanding and enforcing female genital mutilation practices upon girls and women in its communities \u201d , including partners and family members of those who have joined the movement . Members who defect are at serious risk of being killed or harassed .","In a report on female genital mutilation , ORG states that the prevalence of the practice in GPE has decreased in DATE . Throughout GPE , PERCENT of all women have been mutilated . Among PERSON , PERCENT of all women aged DATE are said to have been mutilated ( ORG , ORG . Towards the Abandonment of Female Genital Mutilation \/ Cutting in DATE , DATE ) .","More recently , ORG Note \u2013 GPE , DATE ) stated the following :","\u201c CARDINAL.CARDINAL.CARDINAL The Government of GPE has taken a clear position on the abandonment of ORG and other harmful tribal practices . It is illegal to carry out ORG on females aged DATE or younger , although no similar protection currently exists for women over DATE ...","CARDINAL.CARDINAL.CARDINAL The available evidence suggests that the ability and willingness of the authorities to protect women from the imposition of ORG is slowly increasing . The number of churches , NGOs and other organisations actively working to protect women and girls from ORG and to end the practice is also steadily increasing . However , the accessibility of such protection is variable , geographically and in terms of the circumstances of individual women . It is easier for women to access protection in areas where ORG is less culturally prevalent ...","CARDINAL.CARDINAL.CARDINAL . There are particular concerns for applicants whose ORG claim includes fear of the Mungiki . The PERSON have been criticised for encouraging , demanding and enforcing ORG practices upon girls and women in its communities , on the grounds that it is a traditional NORP practice . The Mungiki are known to force their female family members to undergo ORG . There is no evidence to suggest either that the condition of being married is any protection to women , or that single women are at greater risk . ORG may also be forced upon the wives of Mungiki defectors . Anti - FGM legislation provides protection to children and girls below the age of CARDINAL ; it does not address the protection needs of adult women . However , there are community centres , particularly in the southern areas of LOC , that now provide sanctuary to young women and girls who have escaped forced ORG ...","CARDINAL.CARDINAL.CARDINAL ... The authorities actively take measures to prevent ORG , although there have been relatively few prosecutions . Accordingly , those in fear of being forced to seek ORG for their child should be able to seek the protection of the state . Those in fear of undergoing ORG may , in general , seek the protection of the authorities .","CARDINAL.CARDINAL.CARDINAL PERSON should consider cases in which there is no Mungiki element within the context of the ORG guidance on internal relocation ... In general internal relocation is likely to be a viable option in such cases .","CARDINAL.CARDINAL.CARDINAL For cases where there is a Mungiki element , caseowners should consider cases on their individual merits ... Given the increasing efforts of the NORP authorities to crack down on suspected NORP members , and also that GPE has an area of QUANTITY , with a population of CARDINAL people , internal relocation may be feasible in individual cases . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61317","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":2003,"docname":"CASE OF KOUA POIRREZ v. FRANCE","importance":1,"conclusion":"Violation of Art. 14 and P1-1;No violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award","judges":"Andr\u00e1s Baka;Gaukur J\u00f6rundsson","text":["The applicant was born in DATE and lives in the GPE area .","The applicant has been physically disabled since DATE . He was adopted by Mr PERSON , a NORP national , under the terms of a judgment of CARDINAL DATE of ORG . On DATE the ORG tribunal de grande instance granted authority for the judgment to be executed .","NORP In DATE the applicant applied for a declaration of NORP nationality . His application was found inadmissible on the ground that he was over DATE when it was submitted . He appealed to the ORG tribunal de grande instance , which gave judgment on DATE declaring the application inadmissible . That judgment was upheld by ORG on DATE .","NORP In the meantime , FAC ( commission technique d'orientation et de reclassement professionnel \u2013 \u201c LAW \u201d ) registered the applicant as PERCENT disabled and issued him with an invalids ' card . In DATE he applied to ORG ( caisse d'allocations familiales \u2013 \u201c CAF \u201d ) for the GPE area for an \u201c allowance for disabled adults \u201d ( allocation aux adultes handicap\u00e9s \u2013 \u201c AAH \u201d ) . In support of his application , he stated that he was a NORP resident of GPE nationality and the adopted son of a NORP national residing and working in GPE . His application was rejected on the ground that , as he was neither a NORP national nor a national of a country which had entered into a reciprocity agreement with GPE in respect of the AAH , he did not satisfy the relevant conditions laid down in LAW ( see paragraph CARDINAL below ) .","On DATE the applicant brought his case before ORG of ORG .","In a decision of DATE , ORG confirmed the ORG 's decision on the ground that the applicant did not satisfy the conditions laid down in LAW . The authorities noted that GPE , of which the applicant was a national , had not signed a reciprocity agreement with GPE in respect of the AAH .","On DATE the applicant lodged an application with ORG for judicial review of the decision rejecting his claim . The applicant and the ORG lodged their pleadings on CARDINAL DATE and DATE respectively .","In a judgment of CARDINAL DATE , the court decided to stay the proceedings pending the referral of a question to ORG ( ECJ ) for a preliminary ruling . The question was whether the decision not to award the allowance for disabled adults to the applicant , a member of the family ( adopted son ) of a ORG national resident in the country of which the head of household ( the adoptive parent ) had the nationality ( in accordance with NORP legislation ) was compatible with the NORP provisions contained in the LAW establishing ORG ( \u201c LAW \u201d ) . In a judgment of CARDINAL DATE the ECJ replied to the question with a ruling that the refusal to award the benefit to the applicant was not incompatible with the relevant Articles of LAW . It pointed out that the applicant 's adoptive father could not claim to be a \u201c migrant worker \u201d , which was the category to which the NORP provisions in question applied . It based that finding on the fact that the applicant 's adoptive father , being NORP , had always lived and worked in GPE . The ECJ accordingly concluded that the applicant could not \u201c rely on Community law in support of his application for a social security benefit awarded to migrant workers and members of the family \u201d . In doing so , it did not examine the question whether the refusal to award the applicant the allowance was , in general , compatible with Community law or not .","The applicant started receiving the minimum welfare benefit ( revenu minimum d'insertion \u2013 \u201c ORG \u201d ) on DATE .","On DATE , on the strength of the reply from the ECJ , ORG rejected the application as ill - founded . The applicant appealed against that decision on DATE . He applied for legal aid on DATE .","On DATE ORG at the GPE tribunal de grande instance rejected the application for legal aid to fund the applicant 's appeal on the ground that the request was manifestly ill - founded . On DATE the applicant appealed against that decision . In a decision of CARDINAL DATE the President of ORG allowed the appeal .","In a judgment of DATE , ORG upheld the decision of DATE . It referred to the provisions of LAW in the wording then applicable and to the lack of a reciprocity agreement between GPE and the country of the applicant 's nationality in respect of the allowance .","On DATE the applicant appealed to ORG on points of law . The applicant and the ORG lodged their pleadings on CARDINAL DATE and DATE respectively . On DATE a reporting judge was appointed . He filed his report on DATE . A hearing before ORG took place on DATE . In a judgment of CARDINAL DATE , ORG dismissed the appeal lodged by the applicant and worded as follows :","\u201c With regard to the applicant 's ground of appeal that ' ... LAW prohibits any discrimination , including on grounds of national origin ; that , in refusing to award Mr PERSON an allowance for disabled adults on grounds of his nationality , ORG disregarded the binding nature of that provision , which it subsequently breached by refusing to apply ... ' \u201d","ORG ruled as follows :","\u201c LAW of DATE , which prohibits any discrimination on grounds of national origin , can not be construed as forbidding all nationality criteria on which domestic law makes the availability of a right conditional .","After reiterating the terms of Article L. CARDINAL - CARDINAL of the Social Security Code , which restricts the right to an award of the allowance for disabled adults to NORP nationals and nationals of a country that has signed a reciprocity agreement , ORG properly decided that Mr PERSON , an GPE national , could not claim that allowance in the absence of a reciprocity agreement between GPE and GPE . ... \u201d","Following the enactment of the LAW DATE , which lifted the nationality condition for awards of non - contributory allowances , the applicant reapplied for an allowance for disabled adults from DATE . His application was rejected by the ORG , whereupon he applied to ORG again . In a judgment of DATE that court declared his application ill - founded on the ground that the applicant had not complied with the formal conditions governing the submission of his application for the allowance because he had not submitted to the ORG all the documentary evidence of his financial situation . The applicant appealed . According to information provided by the ORG and undisputed by the applicant , the LAW re - examined the applicant 's claim , at the request of the ORG , and awarded him the allowance for the period from DATE . It is not apparent from the file whether the applicant continued to receive the benefit after that date . In any event , the applicant has not made any complaint regarding the current period and has not alleged that the allowance has been withdrawn .","","LAW of DATE ( Law no . DATE ) provides for the benefit of an allowance for disabled adults . Article L. CARDINAL - CARDINAL of LAW , as worded prior to the entry into force of LAW DATE , provided for the award of this minimum income to any disabled person , subject to the fulfilment of certain conditions :","\u201c Any NORP national or national of a country that has signed a reciprocity agreement in respect of benefits payable to disabled adults resident in metropolitan GPE ... who is over the age of entitlement to the special education allowance provided for in Article L. CARDINAL - CARDINAL and whose permanent disability is at least equal to the percentage determined by decree , shall receive an allowance for disabled adults if they are not eligible for an old - age or invalidity or employment - injury benefit under a social security or retirement pension scheme or special legislation of an amount at least equal to that of the allowance . \u201d","The Aliens ( Conditions of Entry , Residence and Asylum ) Act of CARDINAL DATE ( Law no . CARDINAL - CARDINAL ) abolished the nationality condition . Since that Act was passed , any foreign national lawfully resident in GPE may claim the allowance .","With regard to another benefit , namely the supplementary allowance paid by ORG , ORG has ruled that the refusal to award the benefit solely on the ground of their foreign nationality to claimants resident in GPE who received an invalidity pension under the NORP scheme breached LAW Protocol No . CARDINAL ( ORG , judgment of DATE , published in the Bulletin ) .","Recommendation No . R ( CARDINAL ) CARDINAL on a coherent policy for people with disabilities , adopted by ORG on DATE , cross - refers to its Appendix , which provides , inter alia , as follows :","\u201c ...","Aims","All people who are disabled or are in danger of becoming so , regardless of their age and race , and of the nature , origin , degree or severity of their disablement , should have a right to the individual assistance required to enable them to lead a life as far as possible commensurate with their ability and potential . Through a coordinated set of measures they should be enabled to :","...","\u2013 have a minimum livelihood , if appropriate by means of social benefits ;","...","General directives","To implement this policy GPE should take the following steps :","...","\u2013 ensure that people with disabilities enjoy a respectable standard of life , if necessary by means of economic benefits and social services ;","...","Social provisions remain , however , in many spheres an essential means of either activating and supporting self - help or initiating and promoting rehabilitation and integration processes . ...","ORG . Social , economic and legal protection","Scope and principles","NORP In order to avoid or at least to alleviate difficult situations , sidelining and discrimination , to guarantee equal opportunity for people with disabilities , and to develop personal autonomy , economic independence and social integration , they should have the right to economic and social security and to a decent living standard by :","\u2013 a minimum livelihood ;","\u2013 specific allowances ; and","\u2013 a system of social protection .","CARDINAL.CARDINAL . If there is a global system of economic and social protection for the population as a whole , people with disabilities should be able to benefit fully from it , and their specific needs must be taken into consideration . In so far as this does not exist , a specific system must be established for continuous provision for people with disabilities .","Socio - economic protection must be ensured by financial benefits and social services . This protection must be based on a precise assessment of the needs and the situation of people with disabilities which must be periodically reviewed in order to take into account any changes in personal circumstances which had been the reason for such protection .","Economic protection measures must be considered as one of the elements of the integration process for people with disabilities .","Economic and social security","In addition to social benefits granted to people with disabilities as well as to other people ( for example unemployment benefits ) , the economic and social security system should grant :","\u2013 special benefits in cash or in kind , for people with disabilities , covering rehabilitation and other special needs , such as medical treatment , vocational training , technical aids , access to and adaptation of housing , transport and communication facilities ;","\u2013 special financial support for families who have a child with a disability ;","\u2013 adequate assistance , for example installation allowances or investment loans for people with disabilities wishing to become self - employed ;","\u2013 a minimum livelihood covering their and their families ' basic needs and requirements for people with a degree of disablement which prevents them from working ;","\u2013 benefits for people who need the continuous assistance of another person because of their disablement ;","\u2013 benefits to people who are unable to seek employment because of care provided to a person with a disability ;","\u2013 where financial assistance is given up in order to take up employment , this financial assistance should be protected and guaranteed if employment proves unfeasible ;","... \u201d","This recommendation also states that \u201c the exercise of basic legal rights of people with disabilities should be protected , including being free from discrimination \u201d .","ORG , in Conclusions concerning LAW in respect of GPE ( CARDINALth report , reference period DATE ; Conclusions XV-CARDINAL , vol . CARDINAL , p. CARDINAL , ORG , DATE ) , states as follows :","\u201c The ORG notes that Act no . CARDINAL - CARDINAL on entry of foreign nationals into GPE , their residence in the country and the right of asylum brings ORG Social Security Code into line with FAC . The reciprocity requirement for awarding the AAH and the ORG supplementary allowances to foreigners had been found in breach of the LAW by the ORG since supervision cycle ORG for the former and FAC for the latter . Since this requirement has been lifted \u2013 the only condition now applied is that the beneficiary be lawfully resident in GPE ( new LAW ) DATE nationals of all Contracting Parties are now on an equal footing with NORP nationals . The ORG considers that the situation is now in conformity with Article CARDINAL para . CARDINAL of the LAW . \u201d"],"violated_articles":["14"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58305","languageisocode":"ENG","respondent":"TUR","branch":"GRANDCHAMBER","date":1999,"docname":"CASE OF \u00d6ZT\u00dcRK v. TURKEY","importance":1,"conclusion":"Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses partial award","judges":"Luzius Wildhaber","text":["Mr \u00d6zt\u00fcrk , the applicant , was born in DATE . He is one of the owners of ORG publishing house and lives in GPE .","In DATE he published a book by ORG entitled A testimony to life \u2013 Diary of a death under torture ( PERSON DATE \u0130\u015fkencede \u00d6l\u00fcm\u00fcn G\u00fcncesi ) . The book gave an account of the life of PERSON , who in DATE had been CARDINAL of the founder members of ORG of GPE \u2013 NORP - PERSON ( PERSON \u2013 \u201c the TKP - ML \u201d ) , an illegal NORP organisation .","The CARDINAL-page book , illustrated by photographs , has CARDINAL chapters , each of which is prefaced by a poem . These poems were written by CARDINAL NORP poets , namely the author himself , PERSON , PERSON and PERSON , by the NORP writer PERSON and by PERSON .","As the first edition had sold out as soon as it was placed on sale , the book was republished in DATE .","On DATE the public prosecutor at ORG ( \u201c the ORG \u201d ) instituted criminal proceedings against Mr GPE , the author of the book , and the applicant , its publisher . However , he dealt with the case against Mr GPE separately , having noted that he had not been in GPE at the material time .","On DATE , at the request of the public prosecutor , a single judge of ORG made an interim order for the seizure of the copies of the second edition . According to the file , CARDINAL copies were seized as a result , including CARDINAL at the applicant \u2019s publishing house .","On DATE the applicant asked the judge to reconsider the above order ; this appeal was dismissed .","On DATE the public prosecutor charged the applicant with disseminating communist propaganda in breach of former LAW CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) and of inciting the people to hatred and hostility on the basis of a distinction between social classes , an offence under LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) .","Referring to PERSON antecedents , the public prosecutor emphasised that at the head of ORG , a terrorist organisation , he had carried out armed raids with a view to overthrowing the constitutional order of the ORG in order to set up a communist regime .","In support of his submissions the public prosecutor first drew attention to the description of ORG father given on the second page of the book : \u201c He was a worker who could not accept that life should flow by in that way , and that sweat , energy and labour should be exploited like that . He was dissatisfied with this state of affairs and wanted that forlorn world to change \u201d . The public prosecutor argued that by equating the status quo with a spoliatory regime this sentence undoubtedly praised communism .","The public prosecutor went on to cite the following poems .","\u201c ... Ambushes guide me towards my people , vital force of the guerilla war ; resistance is a terrible and noble passion , but that is not all ; like a mistress , it is in addition hesitant , docile , delicate , deft ; we who are masters of patriotism , hope is hidden within us , the immortal standard is red and streams out in the wind ... \u201d","( ( p . CARDINAL ) PERSON , published in DATE in the DATE publication ORG )","According to the public prosecutor , this poem was to be interpreted in the light of the actions of PERSON . Seen from that point of view , it insinuated that terrorist acts enabled their perpetrators to draw closer to the people and recruit active terrorists from among them and that it was necessary to struggle patiently to establish a communist regime . In his submission , that amounted to illegal communist propaganda .","\u201c To our dead comrades PERSON , who gave your lives for our people ; You , who gave everything in this fight ; You , who gave the colour red To the battle standard Which flies proudly in our hearts ; You , who died for our immortal people ; You , the sublime sons of our people , Rest now with pride and patience , Your comrades are carrying on the fight ... \u201d","( ( p . CARDINAL ) PERSON )","The public prosecutor observed that this text honoured the memory of the dead terrorists who had sought to undermine the ORG \u2019s constitutional regime by force of arms and was intended , particularly in its last phrase , to stir up hatred and hostility .","\u201c ... The only light That awoke us Was the light of the world ! I went into their houses Where they sat round the table After returning from their work ; They laughed or wept And each resembled the others ; They turned their faces towards the light , Seeking their way ... \u201d","( ( p . CARDINAL ) PERSON )","The public prosecutor argued that this poem constituted communist propaganda because it held up communism as the only source of light for proletarians .","\u201c ... They carried out the death sentence ; They spattered with blood The blue mist of the mountains and The newly woken TIME breeze ; Then they came [ and put down their ] weapons . Carefully feeling our chests , They examined us , Searching everywhere ... \u201d","( ( p . DATE , \u201c Your absence made me wear out chains \u201d , DATE )","The public prosecutor contended that these phrases were contemptuous of the security forces who had to stand against the terrorists and thus incited the people to show hatred and hostility towards them .","Lastly , he noted that the expression \u201c May their virtue be our guide and their memory a light on our way \u201d , which appeared on the very last page of the book , referred to PERSON and the other terrorists .","Consequently , the public prosecutor argued that the enthusiastic eulogy of the personality and acts of the rebel PERSON in the book in issue justified both PERSON conviction as the publisher responsible within the meaning of section DATE ) of LAW ( Law no . DATE see paragraph CARDINAL below ) and confiscation of the copies of the book pursuant to LAW ( see paragraph CARDINAL below ) .","NORP Before ORG the applicant contested the charges , submitting that he had published the book because he considered that there was nothing in it which could justify repressive measures . In addition , his lawyers argued in particular that the passages in issue , reproduced in the indictment , could not by any means be taken for separatist propaganda and that even supposing that they could be regarded as a criticism of the ORG as constituted at that time , it was the right of every citizen to make such a criticism .","On DATE ORG found the applicant guilty as charged .","In its judgment , after stating that it was satisfied \u201c that there [ was ] no need to ask experts to examine the book , given that its content [ could ] be understood by anyone on the first reading ... \u201d , ORG accepted that the passages cited in the indictment did indeed praise the aim and the armed raids of the TKP - ML and its leader and accordingly that the public prosecutor was fully justified in interpreting them as open incitement of the people to hatred and hostility . However , observing that it had considered the content of the book as a whole \u2013 in accordance with the case - law of ORG \u2013 ORG dismissed the defence arguments relating precisely to the alleged lack of relevance of an assessment based on this or that isolated extract from the book .","Considering that it was not necessary to reproduce in the operative provisions of the judgment the passages judged to be in breach of the law , ORG held :","\u201c All things considered , the book is intended to glorify and venerate both communism and the terrorist PERSON ... who was a supporter of communism , and to defend his actions ... Moreover , [ the book ] expressly incites the people to hatred and hostility on the basis of a distinction between regions , social classes and races . \u201d","ORG sentenced PERSON to fines of CARDINAL and MONEY ( TRL ) under LAW and LAW respectively ( see paragraphs CARDINAL and DATE below ) and ordered the book \u2019s confiscation ( see paragraph CARDINAL below ) .","By a judgment of CARDINAL DATE ORG declared an appeal by the applicant on points of law inadmissible as regards his conviction under LAW , on the ground that no appeal lay against it in view of the amount of the fine ordered for the offence concerned . However , it set aside the verdict under LAW on the ground that it was unlawful to establish the accused \u2019s guilt merely by referring to the indictment without stating , with reasons , how and in what parts the book was an apologia of communism . It remitted the case on this point to ORG .","On DATE the applicant paid the fine of TRL CARDINAL .","In the judgment it delivered on DATE ORG , basing its decision on an expert report on the content of the book , confirmed the sentence it had imposed under LAW ; it also upheld its order for the confiscation of the book .","However , on DATE this judgment was likewise quashed by ORG , on the ground that the report on which it was based had not been written by experts who had taken the oath . The case was then once again remitted to ORG .","NORP Before ORG the public prosecutor called for PERSON acquittal on the charge of disseminating communist propaganda . He submitted that LAW , on which the conviction in question had been based , had been repealed by LAW ( Law no . ORG ) , which had come into force on DATE .","By a judgment of DATE ORG accepted the public prosecutor \u2019s submissions . However , observing that the judgment delivered on DATE had become final with regard to the conviction under LAW ( see paragraph CARDINAL above ) , it noted that the confiscation order remained operative .","It appears from the file that CARDINAL confiscated copies of the book were destroyed on DATE .","On DATE , that is before the date of PERSON initial conviction ( see paragraph CARDINAL above ) , the public prosecutor charged the book \u2019s author , Mr N. Behram , then living in GPE . The indictment filed for that purpose was essentially a copy of the one which had set in motion the proceedings against the applicant ( see paragraph CARDINAL above ) .","By a judgment of CARDINAL DATE , given in the defendant \u2019s absence , ORG , composed of CARDINAL judges of whom one had also tried the case of PERSON , observed firstly that the court was not required to rule on application of LAW , which had been repealed in the meantime ( see paragraph CARDINAL below ) , then acquitted Mr GPE on the basis of an expert report , in which CARDINAL professors of criminal law maintained that there was nothing in the book which might be held to constitute the offence defined in LAW .","In its judgment ORG , emphasising the book \u2019s documentary nature , confined itself to an endorsement of the conclusions of the above - mentioned expert report .","This judgment became final , no appeal on points of law having been lodged .","On DATE the applicant , having been informed of Mr ORG \u2019s acquittal , applied to the Minister of ORG asking him to refer the case to ORG ( GPE emir ile bozma \u2013 see paragraph CARDINAL below ) by means of an appeal against his conviction under LAW and against the confiscation order ( see paragraph CARDINAL above ) . In support of his application the applicant pleaded the contradiction between the judgment given against him and the judgment given in respect of the author , whereas both of them had been tried on account of the same book .","Consequently , on DATE , by order of the Minister of ORG , ORG at ORG ( \u201c ORG Counsel \u201d ) appealed against the judgment delivered on DATE in the applicant \u2019s case ( see paragraph CARDINAL above ) , pleading the lack of an explicit decision on what was to be done about the confiscation order .","After ORG dismissal of the appeal on DATE the applicant applied for a second time to the Minister of Justice , submitting that ORG had appealed on the wrong grounds .","The Minister of ORG allowed this application and instructed ORG to argue that the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) was bad in so far as the author himself had subsequently been acquitted of charges identical to those which had led to Mr \u00d6zt\u00fcrk \u2019s conviction for incitement of the people to hatred and hostility ( see paragraph CARDINAL above ) .","In its judgment of CARDINAL DATE ORG dismissed the ground of appeal submitted by ORG , ruling as follows :","\u201c The defendant was charged with the offences contemplated in LAW and DATE and LAW and QUANTITY of LAW . The constituent elements of those offences were different . The acquittal of another accused tried for the same offence can not be taken as justified and unshakeable evidence that the defendant should also have been acquitted . [ In addition ] the CARDINAL accused were tried separately and the judgment acquitting PERSON [ GPE ] became final without any appeal on points of law being lodged . Lastly , there is no evidence that the assessment of the content of the book A testimony to life \u2013 Diary of a death under torture made in the judgment at first instance is bad and must be invalidated ... \u201d","At the present time Mr GPE \u2019s book is on open sale . It is published by another publishing house , ORG , under the different title PERSON of a communist ( PERSON kom\u00fcnistin biyografisi ) .","Article CARDINAL \u00a7 CARDINAL of the Criminal Code provides :","\u201c In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ... \u201d","The relevant paragraphs of former LAW of LAW , repealed by LAW ( Law no . ORG ) , provided :","\u201c Harmful propaganda","A person who by any means whatsoever spreads propaganda with a view to establishing the domination of CARDINAL social class over the others , annihilating a social class , overturning the fundamental social or economic order established in GPE or the political or legal order of the ORG shall , on conviction , be liable to a term of imprisonment of from DATE .","A person who by any means whatsoever spreads propaganda in favour of the ORG \u2019s being governed by a single person or social group to the detriment of the underlying principles of the LOC and democracy shall , on conviction , be liable to a term of imprisonment of from DATE .","A person who , prompted by racial considerations , by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public - law rights guaranteed by the LAW or undermining or destroying patriotic sentiment shall , on conviction , be liable to a term of imprisonment of from DATE .","A person who publicly condones the offences contemplated in the above paragraphs shall , on conviction , be liable to a term of imprisonment of from DATE .","...","Where the offences contemplated in the above paragraphs are committed through publication , the penalty to be imposed shall be increased by CARDINAL . \u201d","Article CARDINAL \u00a7 CARDINAL and LAW provide :","\u201c Public incitement to commit an offence","\u2026","Where incitement to commit an offence is done by means of mass communication , of whatever type \u2013 whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled \u2026 \u201d","\u201c Non - public incitement to commit an offence","A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months\u2019 and CARDINAL years\u2019 imprisonment and a heavy fine of from CARDINAL MONEY .","A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years\u2019 imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .","The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . \u201d","With regard more particularly to application of the above - mentioned LAW to the publishers of printed matter giving rise to criminal charges , the Government have submitted examples of judgments given by ORG and supplied further information which may be summarised as follows .","In connection with offences committed through the medium of printed matter , the \u201c principal \u201d responsibility for the offence defined in LAW is incurred by the author of the writing concerned . The publisher \u2019s responsibility is \u201c secondary \u201d and is incurred under LAW ) of PERSON no . MONEY ( see paragraph CARDINAL below ) . A publisher facing criminal proceedings is charged with \u201c publishing the writing which constitutes the offence \u201d contemplated in LAW . However , there are provisions , such as section CARDINAL of LAW ( Law no . ORG ) , which form a lex specialis making publishers criminally responsible .","The main effect of the distinction drawn between the responsibility borne by authors and that borne by publishers is that , unlike the position regarding the former , prison sentences imposed on the latter are commuted to a fine , save in those cases where the above - mentioned LAW no . ORG applies .","Section CARDINAL and section CARDINAL ) of PERSON no . CARDINAL provide :","\u201c For the purposes of the present PERSON , the term \u2018 periodicals\u2019 shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .","\u2018 Publication\u2019 shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .","An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . \u201d","\u201c ...","With regard to offences committed through the medium of publications other than periodicals , criminal responsibility shall be incurred by the author , translator or illustrator of the publication which constitutes the offence , and by the publisher . However , custodial sentences imposed on publishers shall be commuted to a fine , irrespective of the term [ of imprisonment ] ... \u201d","Article CARDINAL \u00a7 CARDINAL of LAW , concerning references to ORG by written order of the Minister of ORG ( GPE emir ile bozma \u2013 \u201c reference by written order \u201d ) provides :","\u201c Where the Minister of ORG has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of ORG , he may issue a formal order to ORG requiring him to ask ORG to set aside the judgment concerned ... \u201d","With regard to the practice followed under NORP law for a reference by written order , the Government have submitted the following information .","This form of appeal lies only against judgments given at last instance which are not appealable to ORG ( see paragraph CARDINAL above ) or against which no party has lodged an appeal on points of law . Only ORG at ORG is empowered to refer a case , and then only on receipt of a formal order to that effect from the Minister of ORG , who may act either of his own motion or at the request of the convicted person . The powers conferred on ORG when it deals with such an appeal are \u201c extraordinary \u201d ; they may not be exercised save under the conditions laid down by law nor may the decision prejudice the convicted person . If the appeal succeeds , ORG will normally , in the judgment delivered as a result , set aside the conviction or reduce the sentence ; in the latter case , it will also determine what length of sentence must be served .","The Government have supplied , by way of example , a number of judgments given by ORG concerning the way courts of trial have assessed writings and\/or speech that have given rise to prosecutions , particularly for offences defined in former LAW and LAW ( see paragraphs CARDINAL and DATE above ) and the offence contemplated in section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) . These were judgments nos . CARDINAL , CARDINAL and PERSON , given by ORG , and judgments ORG . CARDINAL\/CARDINAL , DATE , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL , CARDINAL\/CARDINAL , DATE , CARDINAL , CARDINAL , DATE and DATE , given by its ORG .","CARDINAL principle which emerges from this case - law is that the first - instance judgment must be based on an assessment of the whole of the writing and\/or speech in issue . As regards assessment of the material constituting the offence defined in LAW , ORG has made it clear , particularly in the above - mentioned judgment no . CARDINAL\/CARDINAL , that the offence of \u201c incitement \u201d consists in an act \u201c capable of endangering public safety and public order \u201d irrespective of whether the incitement has actually produced that result . In addition , in judgment no . CARDINAL , in setting aside a conviction under LAW , ORG would appear to have confined itself to noting the \u201c remote \u201d nature of the danger posed by the \u201c incitement \u201d in issue . Moreover , as regards the imposition of heavier sentences on account of aggravating circumstances , ORG has held that such circumstances must be considered in relation to the existence of a grave and imminent danger threatening the general security of the country or the public . Lastly , in CARDINAL of these cases , ORG stressed the extreme importance \u2013 for the protection of the right to a fair trial \u2013 of the rule that the accused must always have the opportunity to speak last , before the judges rule ."],"violated_articles":["10"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101558","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2010,"docname":"CASE OF MUMINOV v. RUSSIA","importance":3,"conclusion":"Non-pecuniary damage - award","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The following facts were established in the principal judgment :","\u201c CARDINAL . According to the applicant 's representative before the ORG , the applicant had been refused permission to be represented by his privately retained counsel but legal - aid counsel had been appointed instead . Neither the applicant 's representative nor his family members had been informed of the exact place of his detention in GPE .","The applicant 's representative before the ORG wrote to ORG asking for information regarding the place of the applicant 's detention and the conditions of access to him . Her request was forwarded to the prosecutor in GPE . On DATE the prosecutor forwarded the request to ORG . The applicant 's representative also wrote to ORG and ORG . No replies were received .","On an unspecified date , the NORP authorities sent a request concerning the applicant to the NORP authorities . On DATE the NORP Ministry of the ORG replied and enclosed a letter in NORP from the applicant dated DATE worded as follows :","\u201c ... during my arrest and detention ... the police and other law - enforcement officers did not violate my rights and did not exert any physical pressure upon me .","I have no claims against the police officers in GPE or PERSON or against any other law - enforcement authority in GPE .","I confirm that this declaration is correct and written with my own hand . \u201d","According to a linguistic expert report , produced by the applicant 's representative , the above letter did not contain any significant mistakes , whereas the applicant 's personal letters contained numerous mistakes reflecting his NORP mother tongue 's phonetics and grammar . The expert noted that the applicant would not have been able to acquire a sufficient command of the LANGUAGE language during DATE between the date of his sample letters ( September CARDINAL ) and the letter in question ( DATE ) . The expert concluded that the letter of DATE had not been written spontaneously by the applicant , who had transcribed the text from the original or written it from a letter - by - letter dictation by someone else . \u201d","Following the adoption of the principal judgment by the ORG , by a letter of CARDINAL DATE ORG of GPE replied to a request from the applicant 's representative before the ORG . ORG stated that all matters relating to the execution by the applicant of the prison term imposed by an NORP court in DATE were within the exclusive competence of the NORP authorities ; the applicant 's representative thus had to apply directly to those authorities .","By a letter of CARDINAL DATE , ORG at ORG indicated to the applicant 's representative that any correspondence between the national authorities and the applicant 's representative on procedural matters should be carried out through ORG . Thus , the representative was directed to address all her queries to the ORG ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-78443","languageisocode":"ENG","respondent":"SVK","branch":"CHAMBER","date":2006,"docname":"CASE OF SNEGON v. SLOVAKIA","importance":4,"conclusion":"Preliminary objection allowed (exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE ORG . He is a self - employed food products wholesaler .","In DATE an article was published in several papers about a salmonella epidemic suggesting that it had had its origin in dried milk which had been produced by the applicant .","On DATE the applicant brought an action in ORG s\u00fad ) for protection of personal integrity against CARDINAL publishers , ORG , CARDINAL of his business partners and a research institute . He claimed that the published information was untrue in so far as it concerned him and that it caused damage to his business interests . He sought compensation in the amount of CARDINAL NORP korunas ( SKK ) .","On DATE ORG held a hearing following which , on DATE , it decided to transfer the case to ORG ( PERSON s\u00fad ) for reasons of jurisdiction .","On DATE the applicant submitted correct addresses for CARDINAL of the defendants . The decision to transfer the case was then served on these defendants and became final on DATE .","On DATE ORG requested that the applicant pay court fees which he did on DATE .","ORG subsequently sought the defendants\u2019 observations in reply and , on DATE , the applicant withdrew his claim in respect of CARDINAL of them .","On DATE ORG held a hearing which was adjourned with a view to obtaining further information including a case file with ORG in a criminal case .","On DATE the applicant extended the action in that he requested that an apology be published and that he be paid MONEY in damages .","On DATE ORG requested the applicant to pay court fees for his extended claim , which he did on DATE .","On DATE the ORG requested that the above - mentioned criminal file be returned to it because it was needed in connection with a different criminal case . ORG returned the case file on DATE but requested that it be given back as soon as possible since it was still needed in connection with the applicant \u2019s case . ORG reiterated the request on DATE and , in response , it was informed that the case file in question was in fact with the criminal division of ORG on appeal in the second of the criminal cases mentioned above .","DATE and DATE ORG held CARDINAL hearings CARDINAL of which were adjourned in order to obtain further evidence . On each occasion CARDINAL or more of the defendants had been absent .","In the meantime , on DATE ORG decided to return a part of the court fees to the applicant on the ground that he had reduced the scope of his claim for damages to SKK CARDINAL,CARDINAL .","On DATE ORG delivered a judgment ordering CARDINAL of the defendants to pay the applicant LAW , dismissing the action in respect of CARDINAL defendants and discontinuing the proceedings in respect of the remaining CARDINAL defendants .","Both the applicant and the defendant who had been ordered to pay damages appealed on the ground that the operative part of the written judgment did not correspond to the judgment which the court had given orally .","On DATE ORG ordered the applicant to pay the court fees for his appeal and , on DATE , it delivered CARDINAL separate decisions by which it corrected errors in the costs order and in the judgment of DATE .","On DATE ORG quashed the judgment of DATE as being incomprehensible and lacking adequate reasons , which made it impossible to review it . ORG observed that the rectification decision of DATE had changed the substance of the contested judgment , which was procedurally impermissible . The case was remitted to ORG for re - examination .","NORP The applicant then withdrew the action in so far as it concerned CARDINAL of the defendants and maintained it in respect of CARDINAL defendants .","On DATE ORG held a hearing following which , on DATE , it ordered each of the remaining defendants to pay the applicant SKK CARDINAL,CARDINAL in damages and dismissed the remainder of his claim . The applicant and one of the defendants appealed .","On DATE ORG dismissed the applicant \u2019s petition for an exemption from the obligation to pay court fees for his appeal .","On DATE ORG quashed both the judgment of DATE and the decision of CARDINAL DATE on court fees . It held that ORG had failed to give comprehensible reasons for the amount of damages to be paid to the applicant and that it had failed to establish adequately the facts relevant for the decision on court fees .","On DATE and DATE ORG held hearings . Following the latter hearing , on DATE it exempted the applicant from the obligation to pay court fees , ordered one of the defendants to pay the applicant SKK CARDINAL,CARDINAL in damages and dismissed the remainder of the claim . The parties waived their right of appeal and the judgment became final and binding on DATE .","On DATE the applicant complained of the length of the proceedings to ORG ( \u00dastavn\u00fd s\u00fad ) under LAW .","On DATE ORG rejected the complaint as having been lodged after the expiry of the twomonth time - limit laid down in LAW ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-93166","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2009,"docname":"CASE OF STOJN\u0160EK v. SLOVENIA","importance":3,"conclusion":"Remainder inadmissible;No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect)","judges":"Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in NORP .","On DATE the applicant was charged with a criminal offence of \u201c threatening security \u201d ( ogro\u017eanje varnosti ) . He was represented by a lawyer in the ensuing proceedings .","On DATE , DATE , DATE and DATE hearings were held before PERSON ORG ( ORG sodi\u0161\u010de v ORG pri GPE ) by a judge , GPE In the course of the proceedings , the applicant , the aggrieved parties , CARDINAL witnesses including CARDINAL defence witnesses , and a psychiatrist were heard .","During the proceedings the aggrieved party lodged a compensation claim ( premo\u017eenjsko - pravni zahtevek ) .","On DATE the \u0160marje pri ORG , further to the hearing at which the applicant was present , convicted the applicant . The ORG found that in the evening of DATE the applicant had called ORG , a police officer at ORG , his wife and his children CARDINAL times , and had threatened that he would kill them that night . The court sentenced him to CARDINAL months\u2019 imprisonment , but advised the injured parties to institute separate civil proceedings for damages . Since the applicant was unavailable at his address , the written judgment was ultimately served on his wife on DATE .","On DATE ORG ( PERSON v PERSON ) rejected an appeal by the applicant \u2019s representative on DATE and upheld the first - instance court \u2019s judgement . The server tried to serve the written judgment on the applicant on DATE . His wife refused to accept the mail and informed the server that the applicant was abroad . A notice was left in the mailbox . On DATE the applicant \u2019s wife returned the notice to the court and asked that the mail be served on the applicant once he returned , which was on DATE . On DATE the court sent the applicant a letter informing him that the judgment did not necessarily have to be served on him but , in the case of the absence of the addressee , had to be accepted by an adult family member . On DATE the server again unsuccessfully tried to serve the mail on the applicant . On DATE the applicant \u2019s wife accepted the mail containing the written judgment of ORG .","On DATE the applicant \u2019s representative lodged a request for protection of legality ( zahteva za varstvo zakonitosti ) with ORG and requested PERSON ORG to adjourn the applicant \u2019s sentence until the delivery of ORG decision . PERSON ORG rejected a request for adjournment of the sentence on DATE . The decision was served on the applicant \u2019s wife on DATE , but DATE she returned the sealed mail to the court , stating that the applicant had left for a work - related trip .","On DATE ORG rejected the applicant \u2019s request for protection of legality . The applicant allegedly saw this judgment only in DATE .","A request for a more lenient sentence lodged by the applicant \u2019s representative on DATE was rejected by ORG on DATE .","On DATE the ORG summoned the applicant to report to the GPE prison to serve the prison sentence . The applicant was advised that if he did not report to the prison on DATE an arrest warrant would be issued against him . He was also advised that he could ask for adjournment of the sentence provided that there were justified reasons . On DATE the summons was served on the applicant \u2019s wife .","On DATE the applicant \u2019s representative requested the President of ORG to adjourn the sentence until the request for protection of legality had been decided by ORG ( see paragraph CARDINAL above ) and on the grounds that the applicant was unfit for prison .","On DATE the President of ORG rejected the applicant \u2019s request for adjournment as unfounded . The decision was served on the applicant \u2019s representative on CARDINAL DATE . A consequent appeal was likewise dismissed by the President of ORG on DATE .","On DATE the applicant \u2019s representative was served with the court \u2019s letter , with which the decision of CARDINAL DATE was enclosed , informing the applicant that he should report to the prison DATE .","On DATE the applicant \u2019s representative informed the court that she was not aware of the applicant \u2019s whereabouts .","On DATE the ORG inquired with the GPE prison as to whether the applicant had started to serve his sentence . On DATE the court issued a warrant for the applicant to be brought to the prison by ORG ( \u201c the ORG \u201d ) . The ORG received the order on DATE .","In TIME of DATE , the applicant and his wife were travelling in a car . At TIME , on a road near GPE , PERSON and ORG , CARDINAL police officers from the ORG who were patrolling the road , stopped their car . PERSON recognised the applicant as he had seen him in connection with another traffic offence case . According to the Government , the officers had an arrest warrant to bring the applicant to the GPE prison and were aware of the applicant \u2019s continuing evasion of the pending imprisonment . PERSON knew that the applicant was a \u201c problematic \u201d person and was advised by ORG to request the applicant to show that he had the required equipment for the car ( obvezna oprema ) in order to get him out of the vehicle . PERSON then first asked the applicant to show his identification documents and then to show the car equipment . The applicant stepped out of the car and opened the boot . In the meantime ORG went to the police car to get a police baton since they were expecting the applicant to resist arrest .","When the applicant was standing in front of the car , PERSON told him that he would be arrested on the basis of the warrant issued against him due to his pending sentence and that he should comply with the procedure . The Government and the applicant disputed the subsequent events concerning the applicant \u2019s arrest .","According to the applicant , the police had not shown him an arrest warrant and he thus refused to be arrested . According to the statements the applicant made in the domestic proceedings , CARDINAL of the officers then punched him in the face and the applicant started to run . The officer caught him and knocked him down . The officer jumped on the applicant and strangled him using an unidentified object . In his observations to the ORG , the applicant maintained that after handcuffing him the officers had beaten him up while he was lying on the ground , despite the presence of his wife and neighbours . The applicant was then left on the ground until his wife helped him to stand up . The applicant was weak and asked for water . The police refused to give him water . They also refused to give him water when asked for it by the applicant at the police station .","According to the ORG , after being informed of the arrest warrant , the applicant replied to the officers that it was invalid as he had appealed against the conviction . In an attempt to conduct a search of the applicant ( varntostni pregled ) , PERSON ordered him to put his hands on the car . The applicant refused . After being warned twice to comply with the order , the applicant said \u201c no , that is not going to happen \u201d and started to run . PERSON , followed by ORG and the applicant \u2019s wife , ran after the applicant . The latter stopped after QUANTITY . At that point the applicant turned towards PERSON and appeared to attempt to hit the officer . PERSON blocked the blow with his left hand and at the same time threw the applicant on to the ground using his left leg . Both officers then tried to handcuff the applicant , who was lying face down on the ground . Due to the applicant \u2019s resistance ORG used the technique of \u201c strangling from behind \u201d in order to release his grip . PERSON then managed to handcuff the applicant , tying the applicant \u2019s hands behind his back . The applicant continued to try to resist arrest by kicking . ORG then went to the police car to call a police van . During that time , which was TIME CARDINAL , the applicant remained lying on the ground . Once ORG returned , the officers lifted the applicant up and waited for the arrival of the police van . During that period , the applicant \u2019s wife drove away and returned with several people from the neighbouring area . After the situation had been explained to them these persons did not interfere with the procedure .","It was undisputed that when the police van arrived the applicant was taken first to ORG and then , at TIME , to the GPE prison .","According to the ORG , the applicant was shown the arrest warrant at the police station , where none of the officers noticed that the applicant was injured , except for a bruise on his nose . The applicant also did not complain of pain , except for discomfort caused by the handcuffs . Later , at the GPE prison the applicant complained that he had injuries due to handcuffs , which had been removed , but there was nothing that would require medical care .","A written confirmation of the applicant \u2019s arrival to the prison issued on DATE by the GPE prison authority stated that the applicant had no apparent injuries or symptoms of any diseases .","DATE , on DATE , at TIME , the applicant was examined by a doctor in ORG , who drew up a report . In the report it was stated that the applicant had alleged that he had been beaten up by the police . An X - ray of his right hand , left hemi - thorax and spine was also taken . Nothing was observed on the X - ray . According to the medical report , the applicant had a reddish bruise around his right eye ( areal pordelosti ) and his right wrist was slightly swollen . The applicant had no signs of injury , haematoma or bruising to his thorax . The doctor noted that the applicant complained of pain between the seventh and tenth ribs , that direct pressure on that area was painful while indirect pressure caused no pain . The kidney area was without any signs of injury , but was slightly painful . The neck was also without any sign of injury .","On DATE the applicant had a follow - up examination in ORG as he was complaining of pain in his chest . Further to the examination , the doctor noted that there were no injuries to that area . He was prescribed pain - killers and advised on breathing exercises .","On DATE the applicant \u2019s wife reported the incident to the office for complaints at ORG ( FAC za prito\u017ebe pri ORG policijski upravi ) .","On DATE the applicant \u2019s wife \u2019s legal representative lodged a criminal complaint against the police officers involved in the applicant \u2019s arrest . The criminal complaint , to which a note written by the applicant \u2019s wife was attached , states , inter alia :","\u201c on DATE , at TIME , ... in the presence of his wife ... ( they ) severely beat and tortured him , threw him on to the ground , pushed his head into the soil ... , and at the same time suppressed his breathing by squeezing his neck , trod on him while he was lying on the ground , stepped on his neck , and then , wearing torn and dirty clothes and barefoot ... , he was arrested and taken to the prison in GPE . \u201d","The applicant \u2019s wife mentioned in her note also that the officers had refused to give water to the applicant , refused to provide him with medical aid and had not given him an arrest warrant . In addition , she asked that the inquiry be conducted by ORG instead of Roga\u0161ka ORG or ORG , which she did not trust .","On DATE ORG received the above - mentioned documents , together with a note prepared by the officer from ORG . On DATE , further to an interview with the CARDINAL officers involved in the arrest , CARDINAL official notes were prepared by an officer of the RSBPS , PERSON","In CARDINAL of the notes , PERSON stated that he had been informed about the applicant \u2019s arrest as it happened . When he had arrived at the ORG the applicant , who was handcuffed , was sitting in the waiting room . According to the note , PERSON saw only a bruise on the applicant \u2019s face and the applicant only complained of pain from the handcuffs . Soon afterwards the applicant was taken to the police van where the handcuffs were taken off .","The other CARDINAL notes recorded what would appear to be separate interviews with the officers PERSON and ORG However , the text of the CARDINAL notes is for the most part identical and appears to be copied and pasted . The ORG testimonies are in line with the version of events submitted by the Government .","On DATE ORG sent a report to ORG ( NORP dr\u017eavno to\u017eilstvo v PERSON ) informing them of the findings of the above inquiry and stating their opinion that the applicant \u2019s wife \u2019s allegations were unsubstantiated .","On DATE the applicant \u2019s wife submitted a medical certificate ( see paragraph CARDINAL above ) to ORG .","ORG subsequently requested ORG to interview the applicant . They conducted an interview on DATE . According to the records of the interview , the applicant stated that after being stopped he was asked to follow the officers to the prison . After he had refused to go to the prison on the grounds that he had not received any warrant to that effect , CARDINAL of the officers allegedly punched him on the right side of his face and he then started to run . After being tackled by CARDINAL of the officers the applicant lay on the ground without resisting . Both officers knelt on him and CARDINAL of them started to strangle him with an unknown object and shouted \u201c the pig should die \u201d . When the applicant \u2019s wife arrived the officers desisted but after the wife left to find help the officers resumed strangling him . The CARDINAL officers were kneeling on his back the whole time . He was subsequently lifted up by his wife .","According to the above - mentioned records , the applicant also stated that he believed that officer PERSON ( see paragraph CARDINAL above ) had been informed about the arrest and had asked the arresting officers to beat him .","On DATE , on the reasonable suspicion that a criminal offence of \u201c Violation of Human Dignity by Abuse of Office or Official Duties \u201d ( Kr\u0161itev \u010dlove\u0161kega dostojanstva z zlorabo uradnega polo\u017eaja ali uradnih pravic ) had been committed , ORG requested that the hearing ( zasli\u0161anje ) of the CARDINAL officers , the applicant and his wife be carried out before the judge of ORG and that the latter ensure that all the circumstances of the case were established .","NORP The officers PERSON and ORG were examined separately by judge ORG on DATE in the presence of their lawyers . PERSON \u2019s statement of what happened during the arrest corresponds to the ORG \u2019s version of events ( see paragraph CARDINAL above ) . According to the records of the hearing , PERSON also made the following statement :","\u201c When he was brought to the police station , we noticed that he had a bruise ( praska ) on his nose , but I do not know where he got it , maybe in the police van , but that was a small bruise , which did not bleed , it looked more like a rash ( odrgnina ) . In any case , when he was brought to the GPE prison , it was established that he had no injuries .","... \u201d","Further to a question by the judge , PERSON stated that the \u201c osotogari \u201d throw , which was used against the applicant , was a self - defence technique and that the strangling was a fighting technique in jiu - jitsu and judo , which the officers had learned at police school and more recently at a self - defence class . These CARDINAL techniques were among the least severe . If these QUANTITY techniques had not worked the officers would have needed to use professional blows , which were more likely to cause injuries .","Likewise , the statement given by officer ORG corresponds to the above described version of events relied on by the Government ( see paragraph CARDINAL above ) . As regards the applicant \u2019s alleged injuries , ORG stated that he had noticed at the police station that the applicant had had a superficial bruise on his nose . He assumed that the bruise had been incurred while the applicant was lying face down on the ground and trying to stand up .","Due to the unavailability of the applicant , ORG \u2019s lawyer and the applicant \u2019s wife during different periods of time , the next hearing was not held until DATE . On DATE , the applicant and his wife were examined by judge GPE","The applicant testified , inter alia , as follows :","\u201c On the road to PERSON I was stopped at the junction by a police officer . A car with the other police officer was hidden in the bushes . ( ... ) . After I stopped the car , a police officer asked me to show the car \u2019s documents , which were all in order ; after he had checked everything he asked me to open the boot , now I do not know why , but I got out of the car and opened the boot . Next , I closed the boot and the officer told me that I was under arrest . I asked \u2018 why\u2019 and told him that I did not have a warrant , which I really did not have . He told me to follow him , but I told him that I was not going anywhere as there was no warrant . Then , the officer hit me on the right side of my forehead . Right now , I do not know what he hit me with , perhaps with a racket or with his hand . I had a red spot there afterwards . As I was hit I started to run in the direction of the hunters\u2019 house , through a field . ... CARDINAL officer ran after me while the other stayed in the car . While he was running the officer hit me on the right leg , so that I fell face down and stayed in that position . The officer jumped on me and started treading on me . Then the officer lay on top of me and started strangling me with a rubber or metallic object . He continued until the second officer came . Then they handcuffed me . Subsequently , while I was lying face down , the officer who had thrown me to the ground and hit me started kicking me in the back and kidney area until my wife arrived and then he stopped . When my wife ran to the hunters\u2019 house the [ same ] officer started strangling me again ( ... ) by pushing my head into the grass . ( ... ) It took TIME from the time the officers stopped my car until I was taken away in the police van . While the officer was strangling me he was shouting \u201c \u2018 the pig should die\u2019 \u201d and other ugly words ( ... ) until the neighbours came . ( ... ) I was lifted up by my wife . When the police van arrived , I was taken to the police station . I was dirty , barefoot and muddy ( ... ) I asked for water , which they refused to give me . ( ... ) When I arrived at FAC , they said they had never seen anything like it and gave me water . \u201d","In reply to ORG \u2019s representative \u2019s questions , the applicant stated , inter alia :","\u201c During my arrest the police officers called somebody by phone , I suspect that was GPE I heard that this person told the officers to beat me up and arrest me .","( ... )","After I had closed the boot , the officer and I stood facing each other and he hit me . [ According to the records , the applicant showed the area above the right eyebrow as the place where the officer had allegedly hit him ] .","( ... )","The officer threw me to the ground and kicked me CARDINAL times in the back and kidney area . Then he put the handcuffs on so tightly that the circulation was stopped . ( ... ) The officer trod on my back and on the handcuffs ( ... ) . I have had a quarrel with officer GPE for DATE . At the police station they did not show me the warrant .","( ... ) \u201d","In reply to a question from PERSON \u2019s representative , the applicant stated that he had been continuously beaten by the same officer . He further stated that when his wife and the neighbours arrived he was released , and had started vomiting while he was still lying face down on the ground . Replying to the judge \u2019s question , he said that he was barefoot when lying on the ground but that he did not know at what point the officers had taken his shoes off him .","The applicant \u2019s wife described the events following the applicant \u2019s notification of the arrest warrant by the police as follows :","\u201c My husband was extremely terrified and was in shock . At that point , after the officer had jumped ( planil ) on him , my husband started to run . The officers ran after him and as I was also terrified I started to run too . The other policemen also ran after them . Once I arrived at the spot I was shocked to see my husband handcuffed and lying face down on the ground , with an officer holding him by the neck and pushing his head into the ground . I have to stress that the other officer was not violent . ( ... ) As I got no reply to my question [ concerning the reasons for the applicant \u2019s arrest ] I ran to the neighbours . [ After she and the neighbours came to the scene ] , my husband was still on the ground totally dizzy ( omamljen ) . Both officers were standing next to him [ further to request for clarification by ORG \u2019s representative she said that they , the officers , were doing nothing at that point ] . My husband asked to be lifted up and said \u201c please lift me up and give me some water \u201d but nobody wanted to help him , so I lifted him up .","( ... )","As regards the summons to the prison , we had not received it at home .","( ... ) \u201d","Further to the ORG \u2019s representative \u2019s request , she gave a further statement on the events immediately following the applicant \u2019s notification of the arrest warrant :","\u201c My husband was very scared , but I do not remember why ( .... ) . The officer jumped on my husband , who was standing very close to him . ( As regards the exact manner of the officer \u2019s reaction ) I do not remember as I was in shock . ( ... ) I did not observe the officer touching my husband physically or hitting him . ( ... ) I can not tell or show the way the officer jumped on my husband as I do not remember . \u201d","In reply to a question put by the judge , the applicant \u2019s wife stated :","\u201c When I came to the scene where my husband was lying on the ground , I saw that he was barefoot , but I do not know where he lost his shoes ( ... ) . \u201d","On the conclusion of the above hearings the case file , together with the records of the hearings , was sent to ORG on DATE .","On DATE the Celje ORG issued a decision dismissing the criminal complaint on the grounds of insufficient evidence . The prosecutor found that the statements made by the applicant and his wife were inconsistent and contradictory . The prosecutor noted in particular , that while the applicant had stated that he was hit in the face after being told he was under arrest , his wife had not observed the applicant being hit by the officer . In addition , the applicant testified that he had been beaten up by the officer up to his wife \u2019s arrival . She , on the other hand , stated that she saw the applicant having his head pushed into the ground , but not being beaten . Moreover , the public prosecutor found that the medical evidence obtained on DATE did not support the applicant \u2019s allegations . Had the officers employed the force alleged by the applicant , the latter would have undoubtedly sustained different injuries . The prosecutor , who noted that he could not find the applicant \u2019s version credible , concluded on the basis of the evidence gathered in the investigation that :","\u201c ... the applicant resisted the officers , started to run away and by doing so prevented them from carrying out their official duty . Due to his resistance , the officers , in accordance with LAW , employed force leading to the least severe consequences , which is demonstrated by the fact that the applicant did not sustain bodily injuries ( po\u0161kodbe ) . \u201d","The Celje District Public Prosecutor \u2019s decision of DATE was served on the applicant on DATE . It drew the applicant \u2019s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor ( subsidiarni to\u017eilec ) , that is an injured party acting as a prosecutor , by lodging a bill of indictment ( obto\u017eni predlog ) within DATE . He did not avail himself of this opportunity .","As instructed by the first - instance court ( see paragraph CARDINAL above ) , police officer PERSON and his wife and children instituted civil proceedings against the applicant at FAC on DATE . On DATE the court held a hearing . By a judgment issued on DATE , it partly granted the police officer \u2019s claim for compensation for non - pecuniary damage . The applicant lodged an appeal on DATE . There is no information in the case file as to the state or the outcome of these proceedings .","DATE ( PERSON ) reads as follows :","\u201c No one may be subjected to torture , inhuman or degrading punishment or treatment . ... \u201d","Further to section CARDINAL of the Administrative Disputes Act CARDINAL ( Zakon o upravnem sporu , ORG no . CARDINAL ) , when no other judicial protection is available ORG has jurisdiction to consider the lawfulness of decisions and actions which interfere with constitutional rights . Under section CARDINAL it is possible to seek a declaration that there has been a violation of a right guaranteed by the LAW and compensation for any loss . ORG decision can be challenged before ORG and ultimately before ORG .","Section CARDINAL , headed \u201c Violation of Human Dignity by Abuse of Office or Official Duties \u201d , of LAW ( PERSON zakonik , ORG no . CARDINAL ) provides as follows :","\u201c An official exercising his office who , by abuse of his office or official duties , treats another person badly , insults him , inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity , shall be sentenced to imprisonment for not DATE . \u201d","In GPE , public prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed . Public prosecutions are conducted by the public prosecutor \u2019s office , an autonomous body within the justice system ( LAW , and sections CARDINAL and CARDINAL of LAW , Zakon o dr\u017eavnem to\u017eilstvu , Official Gazette no . CARDINAL ) .","If the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings , the aggrieved party has the right to take over the conduct of the proceedings in the capacity of a subsidiary prosecutor ( subsidiarni to\u017eilec ) , that is , as an aggrieved party acting as a prosecutor ( section ORG ) of LAW , Zakon o kazenskem postopku , Official Gazette no . CARDINAL ; - \u201c CPA \u201d ) . A subsidiary prosecutor has , in principle , the same procedural rights as the public prosecutor , except those that are vested in the public prosecutor as an official authority ( CPA , section CARDINAL ) ) . If the subsidiary prosecutor takes over the conduct of the proceedings , the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution ( CPA , section CARDINAL ) ) .","The aggrieved party , who may be represented in the proceedings by a lawyer , may during the investigation call attention to all facts and propose evidence relevant to establishing the commission of a criminal offence , the perpetrator thereof and damages incurred as a result of the offence ( CPA , sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ) . This should apply analogously ( CPA , section CARDINAL ) to the investigative measures taken in the summary proceedings ( see paragraph CARDINAL below ) .","NORP criminal proceedings are divided into CARDINAL stages \u2013 preliminary proceedings ( predkazenski postopek ) , conducted by the police and the public prosecutor ; criminal investigation ( preiskava ) , conducted by the investigating judge of the district court , and trial ( glavna obravnava ) , conducted before mixed panels of professional judges and lay judges at district court level or a single professional judge of the local court . Proceedings falling under the jurisdiction of local courts ( offences punishable by a fine or imprisonment of not DATE ) are summary proceedings ( skraj\u0161ani postopek ) , which do not include the criminal investigation stage .","In summary proceedings before a local court , the criminal proceedings may start with a bill of indictment ( obto\u017eni predlog , CPA , section CARDINAL ) submitted by the public or subsidiary prosecutor . Before lodging the bill of indictment , the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures ( CPA , section CARDINAL ) . If such measures have been carried out , the court , further to the submission of the bill of indictment , may dismiss the latter as not allowed if it considers that there is no reasonable suspicion that the accused has committed the alleged criminal offence ( CPA , section CARDINAL , read together with section CARDINAL ) .","For a more detailed presentation of the legislation concerning the criminal proceedings in GPE see PERSON v. GPE , no . GPE , \u00a7 \u00a7 DATE , DATE .","According to section CARDINAL of the CPA , the judgment imposing imprisonment should be served on the accused in person as well as on his or her representative . However , if the convicted person is not found at his address , the server should leave a note informing him or her of a new date on which he or she is to be served with the mail . If the accused person is not found at his or her address on that date , the server shall serve the mail on , inter alia , an adult family member , who is required to accept that mail . The mail is thereby considered to have been effectively served on the addressee . ( sections CARDINAL and CARDINAL of the CPA ) .","Once the judgment becomes enforceable , that is when no ordinary appeal lies against it ( for example , a higher court judgment upholding the first - instance court \u2019s judgment ) and has been effectively served ( section CARDINAL of the CPA ) , the convicted person is summoned to report to prison by the district court which has jurisdiction over the place of his or her residence ( section CARDINAL of GPE , Zakon o izvr\u0161evanju kazenskih sankciji , ORG no . CARDINAL , - \u201c EPSA \u201d ) .","It would appear to suffice that the summons to the persons which are represented by a lawyer be served on the latter ( section CARDINAL of the ORG and LAW of ORG , Zakon o splo\u0161nem upravnem postopku , ORG no . CARDINAL\/CARDINAL ) .","If the request for an adjournment of the sentence , which in principle can be lodged with the president of the district court within DATE of the receipt of the summons ( see paragraph CARDINAL above ) , is rejected , that decision can be challenged before the president of the higher court . If an appeal is dismissed , the convicted person must start serving his sentence DATE after the service of the decision . If the convicted person is legally represented , the decisions concerning the request for adjournment shall be served on his or her representative only ( sections CARDINAL and CARDINAL of the EPSA ) .","If the convicted person fails to report to prison despite being summoned , the court shall issue an arrest warrant against him or her after establishing that the summons has been served effectively or that the circumstances indicate that he or she has been evading the service of summons ( section CARDINAL of the EPSA ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85805","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"HATTEN v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG , solicitors in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant \u2019s wife died on DATE . On DATE the applicant applied for widows\u2019 benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman .","The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .","The applicant was not in receipt of child benefit at the time of his claim .","The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , \u00a7 \u00a7 CARDINAL , DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105084","languageisocode":"ENG","respondent":"SRB","branch":"ADMISSIBILITY","date":2011,"docname":"VIDAKOVIC v. SERBIA","importance":3,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .","NORP The relevant","On DATE the applicant left his car in a repair shop , in order to have it mended . The mechanic , employed by the said shop , subsequently caused a traffic accident while driving the applicant \u2019s vehicle .","On DATE the applicant therefore filed a claim with ORG ( PERSON ) in GPE , seeking compensation for the pecuniary damage suffered .","On DATE ORG adopted a partial judgment ( delimi\u010dna presuda ) in the applicant \u2019s favour . This judgment subsequently became final .","On DATE ORG : ( i ) ruled against the applicant as regards the remainder of his claim ; ( ii ) ordered him to pay the related litigation costs ; and ( iii ) ordered CARDINAL of the CARDINAL respondents to cover the applicant \u2019s own litigation costs associated with the partial judgment of DATE .","On DATE ORG ( Okru\u017eni sud ) in PERSON quashed this judgment \u2019s rulings under points ( i ) and ( ii ) , but upheld its order under point ( iii ) .","On DATE ORG ruled partly in favour of the applicant .","On DATE ORG quashed this judgment on appeal .","On DATE ORG again ruled partly in favour of the applicant . In so doing , it ordered the respondents to pay jointly : ( i ) MONEY ( \u201c ORG \u201d ) in damages , plus statutory interest as of DATE ; and ( ii ) ORG CARDINAL,CARDINAL.CARDINAL for the litigation costs incurred ( i.e. at the time a total of MONEY , \u201c ORG \u201d , plus statutory interest ) .","On DATE ORG ( PERSON ) in PERSON , now acting as the competent court of second instance , upheld this judgment on appeal and it thereby became final . There is nothing in the case file that would suggest that the sums awarded to the applicant have not been paid , and the applicant personally has not raised any objections in this respect .","On DATE the applicant lodged an appeal with ORG ( Ustavni sud ) , complaining about the length of the above civil suit .","On DATE ORG held that the applicant had indeed suffered a breach of his \u201c right to a trial within a reasonable time \u201d , and ordered the competent courts to bring the impugned proceedings to a conclusion as soon as possible . The court , additionally , declared that the applicant was entitled to the non - pecuniary damages sought , in accordance with LAW ( see paragraph CARDINAL below ) .","The applicant seems not to have been served with this decision until DATE .","NORP In DATE the applicant \u2019s lawyer filed a request with ORG . In so doing , he relied on ORG decision , and sought ORG in compensation ( see paragraph CARDINAL , Articles CARDINAL and CARDINAL , below ) .","On DATE the applicant \u2019s lawyer filed another submission with ORG , specifying that he had made a mistake in his earlier request . The actual amount requested was instead ORG ( at the time approximately ORG CARDINAL,CARDINAL ) .","On DATE the applicant personally claimed a total of ORG CARDINAL ( at the time approximately ORG CARDINAL,CARDINAL ) on account of the pecuniary and non - pecuniary damage suffered , but offered , simultaneously , to settle for the said ORG .","In DATE the applicant filed a claim with ORG ( PERSON ) in Po\u017eega , specifically its ORG ( ORG jedinica ) in GPE , noting that he had received no response from ORG which was why he was entitled to bring a separate civil suit in this respect ( see paragraph DATE , below ) . The applicant sought RSD CARDINAL ( at the time approximately EUR CARDINAL,CARDINAL ) for the non - pecuniary damage sustained , plus statutory interest .","On DATE ORG offered to pay the applicant the sum of RSD CARDINAL ( at the time approximately EUR CARDINAL ) for the non - pecuniary damage referred to in the ORG decision .","According to the information contained in the case - file , the applicant refused to accept this amount , deeming it insufficient . The applicant further maintained that ORG had not considered his request earlier since it had apparently experienced some staffing issues .","Article CARDINAL \u00a7 CARDINAL provides , inter alia , that everyone shall have the right to a fair hearing before a tribunal in the determination of his rights and obligations .","Article CARDINAL provides that a \u201c constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . \u201d","The relevant provisions of this LAW read as follows :","\u201c The decisions of the Constitutional Court shall be final , enforceable and binding . \u201d","\u201c A constitutional appeal may be lodged against an individual decision or an action of a ORG body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the LAW , if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law .","A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant \u2019s right to a trial within a reasonable time . \u201d","\u201c A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the LAW has been violated or denied by an individual decision or an action of a ORG body or an organisation exercising delegated public powers . \u201d","\u201c A constitutional appeal may be lodged within DATE of receipt of the individual decision or the date of commission of the actions ... [ in question ] ... \u201d","\u201c When ORG finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by LAW , it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time .","The decision of ORG accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body , in accordance with the law . \u201d","\u201c ... [ An applicant who has obtained a ORG decision in his or her favour ] .. , may lodge a compensation claim with ORG in order to reach an agreement in respect of the amount ... [ of compensation to be awarded ] ...","If ORG does not rule favourably in respect of a compensation claim or fails to issue a decision within DATE from the date of its submission , the applicant may file a civil claim for damages before the competent court . If only partial agreement has been achieved , a civil claim may be filed in respect of the remainder of the amount sought .","The composition and operation of ORG shall be regulated by the Minister of Justice . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-94562","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2009,"docname":"CASE OF TOPORKOV v. RUSSIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)","judges":"Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens","text":["The applicant was born in DATE and is serving a prison sentence in PERSON , in the GPE region .","On DATE senior police officer U. sent his subordinates , including officers PERSON , to arrest the applicant at his flat and take him to ORG of the Interior ( \u0423\u0412\u0414 PERSON \u043e\u0431\u043b\u0430\u0441\u0442\u0438 ) for questioning with regard to several cases of theft . According to the applicant , the police officers put him in the back seat of the car , where they started beating him to make him confess to the thefts until he almost lost consciousness . At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B. , an investigator . One of the police officers pulled a knitted hat down over his eyes . Then they pinned him to the table and threatened to rape him with a rubber truncheon .","In TIME of the same day the applicant was taken to the GPE temporary detention facility ( ORG \u0433. ORG ) , where he was held for DATE .","Following the prosecutor \u2019s refusal to authorise the applicant \u2019s detention pending investigation , the applicant was released on DATE on a written undertaking that he would not leave town .","On DATE the applicant was examined by a general practitioner and a surgeon at ORG in GPE . The applicant complained to the doctors that he had been beaten up by police officers and was experiencing pain in the lumbar region . The excerpt from the applicant \u2019s medical file read as follows :","\u201c DATE . On DATE [ the applicant ] was beaten up at the police station . Since then [ he ] has been bothered by pain in the right lumbar and subcostal region . No dysuria . Satisfactory general condition . Blood pressure measurement CARDINAL . Clear heart beat . Vesicular breathing . Soft abdomen , moderate pain in the right subcostal region . Painful muscle palpation in the right lumbar region . Diagnosis : contusion ( \u0443\u0448\u0438\u0431 ) in the lumbar region ? \u201d","On DATE investigator PERSON summoned the applicant for questioning in connection with a case of robbery . The applicant denied involvement in the robbery . Despite a refusal by the prosecutor to place the applicant in custody , he was allegedly detained at the police station , where he spent TIME sitting on a chair handcuffed to a radiator .","After the applicant had been identified by a witness as one of the alleged perpetrators , the prosecutor authorised his detention pending investigation on DATE .","On DATE the applicant appointed PERSON , a lawyer , to represent him in the criminal proceedings against him .","On an unspecified date the applicant made complaints of ill - treatment to ORG .","On DATE the assistant prosecutor of ORG refused to institute criminal proceedings against the police officers . The assistant prosecutor based her findings on statements made by the police officers and Investigator PERSON , who denied the applicant \u2019s allegations , and on the applicant \u2019s medical file . In particular , the assistant prosecutor stated as follows :","\u201c ... On DATE ORG received a complaint by [ the applicant] ... in which he alleges that officers PERSON . and PERSON of ORG used unlawful methods of investigation . In particular , they subjected him to physical and mental pressure to make him confess to the offences he was charged with ... [ The applicant ] contests his guilt and requests to be released from custody .","... Furthermore [ the applicant ] indicates that on DATE he was unlawfully detained ... On the way to the [ police station ] he was beaten , the beatings continued upon arrival , the officers bullied and humiliated him ... Investigator PERSON was also present ...","Officer PERSON submits that he participated in [ the applicant \u2019s ] arrest ... On the way to the [ police station ] there was no need for them to apply physical force . [ The applicant ] had voluntarily agreed to come [ to the police station ] with the officers . At [ the police station ] [ M. ] talked to [ the applicant ] briefly until Investigator PERSON was available [ to question him ] . However , [ PERSON ] did not apply physical or mental pressure [ to the applicant ] , he did not humiliate or debase him as he was not personally or professionally interested in finding [ the applicant ] guilty because [ M. ] did not know the applicant and the cases he dealt with did not involve [ him ] . He was only assigned to conduct a search at [ the applicant \u2019s ] flat . [ Senior officer ] U. confirmed that he had sent his subordinates , including PERSON , to arrest [ the applicant ] , but had not talked to him himself .","According to Investigator PERSON , she was in charge of the criminal case involving [ the applicant ] ... On DATE she ordered his arrest ... He was brought [ to the police station ] by police officers ... She did not see any injuries on him . Nor did he complain to her that he had been beaten on the way to the [ police station ] . In her presence none of the police officers of the department had pressured [ the applicant physically or mentally ] ... The prosecutor refused to authorise his detention and [ the applicant ] was released on a written undertaking not to leave the town ...","According to a report from the temporary detention unit where [ the applicant ] was held from DATE , he did not request medical assistance and did not have any bodily injuries ...","An excerpt from the [ the applicant \u2019s ] medical file states that on DATE he consulted a general practitioner complaining that he had been beaten at [ the police station ] on DATE ... However , it is impossible to establish beyond reasonable doubt that the applicant \u2019s injuries were caused by the police officers . On DATE the applicant was held at the temporary detention unit ... and did not ask for medical assistance . Furthermore , he was released from the temporary detention unit on DATE , but he did not consult [ the doctors ] until DATE , that is , DATE . During that period he could have been injured in different circumstances ...","The applicant \u2019s allegations are not consistent with the findings of the inquiry . This indicates that the applicant is trying to mislead the prosecutor \u2019s office and the court with regard to his guilt . \u201d","The prosecutor also dismissed as unfounded the applicant \u2019s complaint that he was handcuffed on TIME DATE .","In DATE ORG in GPE opened the trial . The applicant maintained his innocence and alleged , inter alia , that the police officers had used unlawful investigation methods to make him and other defendants confess to the crimes , which resulted in the false testimonies against him given by other defendants .","On DATE ORG found the applicant guilty of robbery and theft and sentenced him to CARDINAL years\u2019 imprisonment . The court dismissed the applicant \u2019s allegations that he had been subjected to beatings and unlawful investigation methods while in police custody , stating as follows :","\u201c The court can not accept the allegations made by defendants PERSON , ORG and [ the applicant ] that police officers subjected them to psychological or physical pressure during the investigation . As pointed out earlier , the prosecutor \u2019s office conducted thorough inquiries in respect of the actions of the police officers , and the [ defendants\u2019 ] allegations proved to be unfounded .... Furthermore , the court questioned officers PERSON . , PERSON , PERSON and [ investigator ] PERSON , who had been involved in the criminal investigation . They testified to the court that they had not subjected the defendants to any unlawful treatment . The ORG has no reason to doubt their testimonies , given that they ... had been warned of their criminal liability for perjury or refusal to testify . \u201d","The applicant appealed against his conviction , alleging , in particular , that the police officers had subjected him to ill - treatment .","On DATE ORG upheld the applicant \u2019s conviction on appeal . The court did not make a specific ruling on the applicant \u2019s allegations of ill - treatment .","On DATE the applicant lodged a complaint about his conviction and ill - treatment with ORG . On an unspecified date he forwarded a similar complaint to ORG .","On DATE the First Deputy Regional Prosecutor responded that the applicant \u2019s conviction was in compliance with law . As regards the applicant \u2019s complaint of the ill - treatment , the prosecutor noted as follows :","\u201c The [ applicant \u2019s ] allegations that he had been subjected to physical and psychological pressure lack any substantiation . ORG had earlier conducted an inquiry and refused to open a criminal investigation . \u201d","On DATE ORG informed the applicant that they did not discern any irregularities in the way the courts had determined the criminal charges against him . Nor had \u201c any unlawful methods of investigation \u201d been employed against the applicant .","A prosecutor , investigator or judge is under an obligation to accept for review any complaint concerning a criminal offence and to decide whether a criminal investigation is necessary . They may request relevant material or explanations ( Article CARDINAL of LAW in force until DATE , the \u201c old CCrP \u201d ) .","Where there are sufficient grounds to believe that a crime has been committed , the prosecutor , the investigator or the judge initiates a criminal investigation ( Article CARDINAL of the old CCrP ) .","The complainant may appeal against the refusal to open a criminal investigation to a prosecutor or a court ( Article CARDINAL of the old CCrP ) ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-87962","languageisocode":"ENG","respondent":"ROU","branch":"CHAMBER","date":2008,"docname":"CASE OF MITREA v. ROMANIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis L\u00f3pez Guerra","text":["The applicant was born in DATE and lives in GPE .","On DATE ORG ordered a company FAC , the applicant \u2019s former employer , to reinstate him in his post and to pay him compensation . This decision became final .","However , on DATE the same court granted ORG \u2019s request and annulled the DATE decision ( contesta\u0163ie \u00een anulare ) . It proceeded to re - examine the case and dismiss the applicant \u2019s initial action .","The DATE decision was drafted on DATE and typed up on DATE . In accordance with the rules of procedure , it was not served on the parties .","On DATE the applicant requested PERSON to lodge an application with ORG for an audit setting aside the decision of DATE ( recurs PERSON anulare ) . On DATE , the Procurator - General refused to act upon the applicant \u2019s request .","NORP In a decision of DATE , which was upheld by a final decision of ORG on DATE , the applicant \u2019s previous employer , a company called PERSON was ordered to give the applicant his employment record and to pay him MONEY ( ROL ) in legal fees .","On an unspecified date , the applicant lodged an application with LOC to enforce that decision . In its defence , PERSON claimed that it no longer had the applicant \u2019s employment record and that only the most recent employer ( FAC ) was allowed to deliver a duplicate .","On DATE the application was dismissed . The court found , in particular , that the facts of the case confirmed that it was objectively impossible for PERSON to deliver the applicant \u2019s employment record , as the document was no longer in its possession .","The applicant \u2019s appeal was allowed by ORG in a final decision of DATE , as amended on DATE . The court imposed a DATE penalty on PERSON of ROL CARDINAL from DATE until execution and ordered it to pay the applicant ROL CARDINAL in legal fees . After noting the arguments used by the court at firstinstance in order to find in favour of the debtor , the appeal court stated , in particular , that :","\u201c In so far as an irrevocable decision ordered [ M. ] to deliver to the complainant his employment record , the impediments to compliance referred to by the first - instance court are irrelevant . \u201d","On DATE PERSON filed with ORG a request for the annulment ( contesta\u0163ie \u00een anulare ) of the decision of CARDINAL DATE , on the ground that ORG had not examined the evidence confirming its inability to comply .","NORP The applicant submitted that PERSON did not have locus standi to request an annulment , since the extraordinary - appeal procedure was only available to the party who had lodged the ordinary appeal . He also contended that the request should be rejected since PERSON had invoked the same reasons as before the first - instance court and the appeal court .","In a final decision of CARDINAL DATE , ORG , sitting in a different composition from that of DATE , allowed the request , and quashed the final decision of CARDINAL DATE on the merits and the decision of CARDINAL DATE amending it . Consequently , it dismissed the applicant \u2019s appeal and upheld the judgment of DATE . The relevant parts of the decision read as follows :","\u201c The request [ for annulment ] was lodged by [ M. ] , which was the respondent in the appeal proceedings , within the time - limits set out in LAW ...","The court considers that LAW is applicable , as the appeal court committed a material error , that is , an obvious material error made by omitting important elements or information from the file which had an influence on the solution adopted .","When examining the grounds for appeal , the court should have taken into account the evidence , that is , all elements that confirmed the inability to comply , namely the lack of the applicant \u2019s employment record . The court \u2019s conclusion that those impediments are irrelevant contradicts the evidence . \u201d","Article CARDINAL of the Code of Civil Procedure defines a \u201c material error \u201d as CARDINAL of the grounds for having a final decision quashed by means of a request for annulment ( contesta\u0163ie \u00een anulare ) . This Article reads as follows , in so far as relevant :","\u201c Decisions rendered by a court of last instance may also be contested by means of a request for annulment , when the decision was based on a material error ... \u201d"],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23373","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2001,"docname":"LENZ v. GERMANY","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national , born in DATE and living in GPE . He was represented before the ORG by PERSON K.H. PERSON , of FAC .","The facts of the case , as presented by the parties , can be summarised as follows .","DATE and DATE the applicant worked as a radio journalist in GPE ( GDR ) . He ran the international press - review office until shortly before the entry into force of LAW on DATE .","On DATE the applicant entered into an agreement proposed by his employer under which his contract of employment was to terminate and he would receive an early - retirement pension ( NORP zur Beendigung des Arbeitsrechtsverh\u00e4ltnisses und zur PERSON ) of CARDINAL NORP marks DATE , in accordance with LAW of CARDINAL DATE ( PERSON ) . The Order required employers to pay qualifying employees an early - retirement pension equal to PERCENT of their average net wage over DATE . LAW second implementing provision ( PERSON ) of the Order provided for the pensions to be indexed to changes in pay levels within the firm that would have affected the employee had he or she continued to work .","In a judgment of CARDINAL DATE ORG ( PERSON - arbeitsgericht ) dismissed an appeal by the applicant for the same reasons .","In a judgment of DATE , ORG ( ORG ) dismissed a further appeal by the applicant , holding that his rights had been extinguished by the entry into force of LAW on DATE .","ORG pointed out , firstly , that the obligations of the GPE radio and television company , which was dissolved on reunification , had been assumed by the CARDINAL LOC within the territory of the GPE at the time and GPE . It added that by virtue of LAW second implementing provision of the Early - Retirement Pensions Order , taken together with Appendix IIa of LAW , ORG was in law the successor ( PERSON ) to the applicant \u2019s former employer .","ORG found , further , that the applicant no longer had any right to payment of the difference , as the legal basis for the progressive indexation of the early - retirement pension had disappeared on DATE , ORG having changed the method by which the level of the early - retirement pension was adjusted . That change had been made with the consent of the parliament of the GPE . Former LAW of the second implementing provision had been repealed and replaced by the \u201c adjustment factor \u201d provisions set out in LAW .","ORG found , lastly , that the agreement made on DATE did not contain any provision giving the applicant any additional rights to those set out in the Early - Retirement Pensions Order of CARDINAL DATE . In particular , it did not provide for a progressive , long - term revaluation of the applicant \u2019s early - retirement pension in line with changes in wage levels paid by the employer , but expressly stipulated that the pension was granted on the basis of the Order of CARDINAL DATE .","On DATE ORG ( ORG ) , sitting as a bench of CARDINAL judges , declined to accept a further appeal by the applicant for adjudication .","PERSON , Chapter VIII , section E , paragraph III no . CARDINAL of LAW of DATE provides that the Early - Retirement Pensions Order remains valid , but lays down , inter alia , that after that date payments will , at the employee \u2019s request , be made by ORG and that the early - retirement pension shall be equal to PERCENT of the average net wage over DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76600","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"YILMAZ v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant at CARDINAL time lived with his parents and brothers in the PERSON village of ORG . Their house was on the outskirts of the village . The applicant later moved to GPE . His family continued to live in PERSON .","On an unspecified date in DATE the applicant learned that the security forces had chopped down his family \u2019s fruit trees in the village . On an unspecified date , the local gendarme commander orally stated that the soldiers who had chopped the trees had subsequently been disciplined . The applicant \u2019s family did not make any formal complaints .","In the unspecified past , the soldiers had allegedly burned CARDINAL houses in the centre of the village and compelled the villagers to leave the village . In TIME of an unspecified day in DATE , while the applicant \u2019s father was visiting him in GPE , some soldiers opened fire in the direction of the house , presumably in the course of a clash with the ORG . The soldiers\u2019 bullets caused a fire near the house of the applicant \u2019s family , burning dry leaves and chopped wood only .","The applicant \u2019s family informed him about these incidents and expressed their fears . They did not feel secure to live in this region . The applicant came to the village in order to take his family to GPE . His family left all their belongings in the house and voluntarily gave the keys to the local gendarme station for potential house searches .","The applicant \u2019s family began to live with him in GPE . In DATE the father of the applicant died .","DATE the applicant went to the village DATE in order to check the house . In DATE he noticed that some of their belongings and some food supplies were missing . Moreover the doors and the windows of the house had been removed .","On DATE the applicant wrote to the GPE Governor \u2019s Office . He explained that he wanted to return to his village that he had left in DATE . He reported about the damage caused to his house and belongings and requested that his damage be assessed . He further requested financial aid to repair his house .","On DATE ORG of the GPE Governor \u2019s ORG wrote in reply that an investigation had been carried out by ORG . It was observed that there were no residents in the village as a result of the acts of terror . According to the ORG , the damage had been caused by severe weather conditions and lack of proper care and maintenance . It was noted that the damage had accelerated after the roof of the house was ruined . The ORG concluded in the light of these facts and under the relevant law that it was not possible to provide any compensation or financial aid , as requested . The applicant did not challenge this decision .","In DATE the applicant went to the village again . He observed that the roof of the house had suffered some more damage since DATE . He further noticed that DATE unspecified \u2013 family belongings had been stolen .","On DATE the applicant wrote a second letter similar to the letter of DATE . He did not submit a copy of it to the ORG .","On DATE ORG wrote in reply to the second letter that an investigation had been carried out . It referred to an internal directive of DATE of ORG of the Bing\u00f6l Governor \u2019s Office . The referred directive had ordered the identification of the families who had emigrated as a result of the acts of terror but subsequently returned and built houses , or those who wished to return . The letter noted that , under the relevant law , it was not possible to provide any compensation or help from GPE Office and ORG .","The letter nevertheless stated that , on the condition that the applicant would return to the village , his situation would be reconsidered in the light of a new investigation to be conducted on site . The letter further stated that if his request were found to be well - suited , necessary aid could be provided .","The applicant did not find the letter sincere . He was of the opinion that the local gendarme commander would not allow any construction work in the village . He also believed that various unreasonable security measures in the village would make it undesirable to live there . The applicant neither returned to the village nor wrote to any other ORG institution .","In DATE , the applicant learned from unspecified sources that his house was destroyed to a greater extent and the village forests were burned .","The security forces had not destroyed or stolen the applicant \u2019s belongings . Furthermore , the official records indicated that 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL VI )"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79767","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2007,"docname":"CASE OF CASTRAVET v. MOLDOVA","importance":2,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial claim;Costs and expenses partial award","judges":"Nicolas Bratza","text":["The applicant was born in DATE and lives in PERSON .","On CARDINAL DATE the applicant was arrested by ORG ) on charges of embezzlement . He had completed his ORG studies , did not have a criminal record , was employed and had a permanent domicile .","On DATE the investigating judge of ORG , issued a warrant for his remand in custody for DATE . The reasons given by the court for issuing the warrant were that :","\u201c The criminal proceedings were instituted in accordance with the law in force . [ The applicant ] is suspected of having committed a serious offence for which the law provides imprisonment of DATE ; the evidence submitted to the court was obtained lawfully ; the isolation of the suspect from society is necessary ; he could abscond from law - enforcement authorities or the court ; he could obstruct the finding of truth in the criminal investigation or re - offend \u201d .","The applicant appealed against this decision arguing inter alia that the suspicion against him was groundless , that he did not have any intention of absconding or obstructing the investigation in any way and that he was ready to co - operate with the investigation body .","On DATE , the applicant 's appeal was dismissed by a panel of CARDINAL judges of ORG .","On DATE the ORG prolonged the applicant 's detention on remand for DATE . The court reasoned that detention was necessary because :","\u201c [ the applicant ] is suspected of having committed a very serious offence , there is a risk that he may put pressure on witnesses or put himself out of the reach of law - enforcement authorities ; and there is a continuing need to isolate him from society \u201d .","NORP The applicant appealed against this decision and submitted the same arguments as advanced in his first appeal .","On DATE ORG dismissed the applicant 's appeal without relying on any new arguments .","The applicant 's detention on remand was prolonged on the same grounds until DATE , when he was released from detention .","The applicant was detained in the remand centre of the ORG . The room used for meetings between lawyers and detainees had a glass partition to keep them separated .","The relevant domestic law concerning detention on remand was set out in the ORG 's judgment in ORG v. GPE , no . CARDINAL , \u00a7 DATE , CARDINAL DATE .","It appears from the photographs submitted by the Government that in the lawyer - client meeting room of the LOC detention centre , the space for detainees is separated from the rest of the room by a door and a window . The window appears to be made of CARDINAL plates of glass joined together . Both plates have small holes pierced with a drill ; however the holes do not coincide so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There appears to be no space for passing documents between the lawyer and his client .","The domestic courts have ruled on complaints about lack of confidentiality in the ORG lawyer - client meeting room in the cases of PERSON ( application no . CARDINAL\/CARDINAL ) and ORG ( cited above ) . On DATE a judge of ORG ordered the ORG authorities to remove the glass partition separating lawyers from their clients ; however , the ORG authorities refused to comply with the court order . On DATE the same judge revoked the decision of CARDINAL November CARDINAL arguing that in the meantime she had been informed by the ORG authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary in order to ensure the security of the detainees .","On DATE Mr ORG 's lawyer complained again to ORG under LAW that he could not confer with his client in conditions of confidentiality . On DATE the same judge from ORG dismissed the complaint without examining it and referred to her previous decision of DATE .","DATE ORG held a strike , refusing to attend any procedures regarding persons detained in the remand centre of the ORG until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients . The demands of ORG were refused ( see ORG , cited above , \u00a7 CARDINAL ) .","On DATE ORG held a meeting at which the President of ORG and another lawyer informed the participants that they had taken part , together with representatives of ORG , in a commission which had inspected the LOC detention centre . During the inspection they asked that the glass wall be taken down in order to check that there were no listening devices . They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by ORG . The ORG administration rejected the proposal .","Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) , insofar as relevant , reads as follows :","\u201c CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice . ...","ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential . ...","CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings . \u201d"],"violated_articles":["5"],"violated_paragraphs":["5-3","5-4"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-104810","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2011,"docname":"IMOBILIJE MARKETING D.O.O. AND DEBELIC v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska","text":["The first applicant , ORG . , is a limited liability company incorporated under NORP law , which has its registered office in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He is an advocate practising in LOC . The first applicant was represented before the ORG by the second applicant . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicants concluded a lease agreement with PERSON whereby they as lessors leased their business LOC to her for DATE ( from DATE until DATE ) . In return , PERSON as a lessee was obliged to pay them in NORP kunas ( HRK ) the counter value of MONEY ( ORG ) per year . For DATE agreed to pay the applicants in kunas the counter value of : ( a ) DEM CARDINAL,CARDINAL upon the conclusion of the agreement , ( b ) DEM CARDINAL,CARDINAL by DATE ; and ( c ) DEM CARDINAL,CARDINAL by DATE . For every subsequent year PERSON agreed to pay in kunas the counter value of : ( a ) DEM CARDINAL,CARDINAL by DATE of DATE for DATE , and ( b ) DEM CARDINAL,CARDINAL by DATE for DATE .","The agreement was concluded in the form of a notarial deed ( javnobilje\u017eni\u010dka isprava ) and contained an enforcement clause entitling the applicants to directly institute enforcement proceedings against PERSON if she failed to pay the annual rent .","Given that by DATE PERSON had paid only the counter value of DEM CARDINAL of the amount due by that date , on DATE the applicants instituted enforcement proceedings before ORG ( PERSON ) with a view to collecting the unpaid amounts . By CARDINAL DATE the applicants had instituted another QUANTITY sets of enforcement proceedings before the same court with a view to satisfying their claims arising from the above - mentioned lease agreement . However , even though the court had frozen PERSON \u2019s bank account already on DATE , the applicants were unable to satisfy any of their claims owing to the lack of funds on that account . It would appear that CARDINAL out of the QUANTITY enforcement proceedings are still pending ,","Meanwhile , on DATE the applicants instituted non - contentious proceedings before ORG asking the court to issue a preliminary measure ( prethodna DATE \u2013 a type of security measure ( mjera osiguranja ) DATE freezing PERSON \u2019s bank account for the sum corresponding in kunas to the counter value of DEM CARDINAL,CARDINAL , that is , the remaining amount of rent that would become due before the expiry of the lease agreement on DATE . They argued that PERSON \u2019s behaviour , in particular her failure to pay the full amount of the rent due by DATE , suggested that it was likely that she would not pay the future instalments of the rent as they become due .","On DATE the court dismissed the ORG request .","Following an appeal by the applicants , on DATE ORG ( \u017dupanijski sud u ORG ) quashed the first - instance decision and remitted the case .","In the resumed proceedings , on DATE ORG again dismissed the applicants\u2019 request .","Following an appeal by the applicants , on DATE ORG again quashed the first - instance decision and remitted the case .","On DATE ORG dismissed the ORG request for CARDINAL time . The court found the ORG request superfluous because their claim had been sufficiently secured . In particular , the court found that the applicants had frozen PERSON \u2019s bank account already on DATE in the above - mentioned enforcement proceedings .","On DATE ORG dismissed the applicants\u2019 appeal and upheld the first - instance decision endorsing the reasons contained therein . It added that it was not allowed to issue a preliminary measure after the claim to be secured had become enforceable .","On DATE the applicants lodged an appeal on points of law ( revizija ) against the second - instance decision . It would appear that the case is currently pending before ORG ( PERSON ) .","On DATE the applicants lodged a request with ORG for protection of the right to a hearing within a reasonable time in respect of the above non - contentious proceedings .","On DATE the ORG found a violation of the applicants\u2019 right to a hearing within a reasonable time and awarded them each HRK CARDINAL,CARDINAL in compensation .","The relevant part of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL\/CARDINAL and CARDINAL ) , which entered into force on DATE , reads as follows :","\u201c ( CARDINAL ) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court .","( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG or ORG , the request shall be decided by ORG .","( CARDINAL ) The proceedings for deciding the request referred to in paragraph CARDINAL of this section shall be urgent . The rules of non - contentious procedure shall apply mutatis mutandis in those proceedings and , in principle , no hearing shall be held .","( CARDINAL ) If the court referred to in section CARDINAL of this LAW finds the request well founded , it shall set a time - limit within which the court before which the proceedings are pending must decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time .","( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE from the date the party \u2019s request for payment is lodged .","( CARDINAL ) An appeal , to be lodged within DATE with ORG , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against ORG decision but CARDINAL may lodge a constitutional complaint . \u201d","LAW ( Ovr\u0161ni zakon , ORG , ORG . ORG , CARDINAL , CARDINAL , CARDINAL , ORG , CARDINAL , GPE , DATE and CARDINAL\/CARDINAL ) regulates both enforcement proceedings ( ovr\u0161ni postupak ) in civil law matters and security proceedings ( proceedings for the issuance of interim measures , postupak osiguranja ) .","The LAW provides for CARDINAL types of security ( interim ) measure ( mjere osiguranja ) , CARDINAL of which are voluntary and CARDINAL of which are compulsory .","The CARDINAL voluntary measures are : ( a ) judicial and notarial pledge security on the basis of the agreement of the parties ( sudsko i javnobilje\u017eni\u010dko zalo\u017enopravno osiguranje tra\u017ebina na temelju sporazuma stranaka ) and ( b ) judicial and notarial ( fiduciary ) security by transferring ownership of a property or by transferring a right ( sudsko i javnobilje\u017eni\u010dko ( fiducijarno ) osiguranje prijenosom vlasni\u0161tva na stvari i prijenosom prava ) .","The CARDINAL compulsory measures are : ( a ) security by compulsory mortgaging of an immovable property ( osiguranje zasnivanjem zalo\u017enog prava na nekretnini ) , ( b ) security by anticipatory enforcement ( osiguranje prethodnom ovrhom ) , ( c ) security by preliminary measures ( osiguranje prethodnim mjerama ) , and ( d ) provisional measures ( privremene mjere ) .","The relevant provisions of LAW regulating preliminary measures provide as follows :","C h a p t e r t h i r t y","SECURITY BY PRELIMINARY MEASURES","Requirements for imposition of a preliminary measure","Section CARDINAL","\u201c ( CARDINAL ) ORG preliminary measure shall be imposed with a view to securing a monetary claim on the basis of :","a decision of a court or an administrative authority that has not [ yet ] become enforceable ,","NORP a settlement concluded before a court or an administrative authority , if the claim determined therein has not [ yet ] become due ,","a notarial deed , if the claim determined therein has not [ yet ] become due .","( CARDINAL ) The court shall on the basis of the documents referred to in paragraph CARDINAL of this section impose a preliminary measure if the requesting party [ i.e. the creditor ] demonstrates that without such a security [ measure ] there is a probable risk that the satisfaction of the claim [ i.e. the collection of the debt ] would be frustrated or seriously hindered . \u201d","Types of preliminary measures","Section CARDINAL","\u201c ( CARDINAL ) A court may impose the following as preliminary measures :","NORP ...","NORP ...","A prohibition on the bank to pay the opposing party [ i.e. the debtor ] or a third party , at the opposing party \u2019s order , an amount from his or her account for which the preliminary measure has been imposed .","( CARDINAL ) ...","( CARDINAL ) By the implementation of the preliminary measure , the requesting party [ i.e. the creditor ] shall acquire the right of pledge on the object of the security [ measure ] .","( CARDINAL ) The sum of money deposited by the opposing party in the bank , on which the prohibition of payment has been imposed , may not be transferred from that account until the prohibition is in force , except to satisfy the secured claim . \u201d","Decision on imposition of a preliminary measure","Section CARDINAL(CARDINAL )","\u201c A period for which a preliminary measure is imposed may not be longer than DATE after the conditions for enforcement have been met . \u201d","NORP legal scholars classify security ( interim ) measures ( mjere osiguranja ) into CARDINAL main categories according to their purpose : ( a ) protective ( conserving ) measures , ( b ) regulatory measures , and ( c ) anticipatory measures .","Protective measures are those measures whose purpose is to create conditions for the future satisfaction of a creditor \u2019s claim . ORG and notarial pledge security , judicial and notarial fiduciary security , security by compulsory mortgaging of an immovable property , all preliminary measures and the majority of provisional measures are considered as protective measures .","Regulatory measures are those measures whose purpose is to temporarily regulate relations between the parties . Certain provisional measures are considered regulatory measures .","Anticipatory measures are those measures whose purpose is to satisfy a creditor \u2019s claim in advance . The anticipatory enforcement and certain provisional measures are considered anticipatory measures .","In terms of their effects , NORP legal scholars classify security ( interim ) measures into CARDINAL main categories : ( a ) those that lead to ( complete or partial ) satisfaction of LOC claims ( the anticipatory enforcement and certain provisional measures ) , and ( b ) those that create certain rights in rem ( judicial and notarial pledge security , judicial and notarial fiduciary security , security by compulsory mortgaging of an immovable property and all preliminary measures ) , and ( c ) those that create certain quasi rights in rem or which de facto remove or reduce the risk of a future impossibility to satisfy a creditor \u2019s claim ( all provisional measures ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-4795","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":1999,"docname":"TH-TEKNIIKKA OY:N KONKURSSIPES\u00c4 v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Georg Ress","text":["The applicant is a NORP bankrupt \u2019s estate , whose domicile is GPE .","It is represented before the ORG by Mr PERSON , a lawyer practising in ORG .","A.","In DATE the applicant brought an action for recovery against a company T before the GPE ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tt ) . On CARDINAL DATE ORG partly rejected and partly accepted the applicant \u2019s claims .","Both the applicant and the company T appealed to ORG ( hovioikeus , hovr\u00e4tt ) . The applicant also submitted a new piece of evidence . After the time for appeal had expired , the applicant filed another submission requesting an oral hearing . The company T had requested a hearing in its appeal .","On DATE ORG , in written proceedings , reversed ORG decision and dismissed the applicant \u2019s action . Under LAW , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure ( oikeudenk\u00e4ymiskaari , r\u00e4tteg\u00e5ngsbalk","On DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused the applicant leave to appeal .","B. Relevant domestic law","The relevant domestic law as in force at the relevant time may be summarised as follows :","Under LAW , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure , no new evidence , which had not been submitted to ORG , was allowed before ORG , unless the appellant could prove that he had been unable to submit the evidence before ORG or that he had had a valid reason for not doing so .","According to Chapter CARDINAL , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure , a ORG could hold , when necessary , an oral hearing , where parties , witnesses and experts could be heard , and other evidence could be taken ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103944","languageisocode":"ENG","respondent":"HUN","branch":"COMMITTEE","date":2011,"docname":"CASE OF LASZLO MOLNAR v. HUNGARY","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Andr\u00e1s Saj\u00f3;Ireneu Cabral Barreto","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant brought an action against a private individual before ORG , seeking to recover the possession of some specific movable property .","After several hearings , a judgment was delivered on DATE , which was quashed by ORG on DATE .","In the resumed proceedings several forensic expert opinions were obtained . CARDINAL hearings had to be rescheduled as the applicant and his representative failed to appear , despite having been duly summoned . On DATE the ORG delivered a judgment . On DATE ORG remitted the case .","ORG delivered a partial judgment on DATE , which was decided on appeal by ORG on DATE .","In respect of the respondent 's counterclaim , the first - instance court delivered a judgment on DATE which was upheld by ORG on DATE ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-22894","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2002,"docname":"PASLAWSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national , who was born in DATE and lives in Ustrzyki GPE , GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE . The respondent Government were represented by their Agent , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant bought QUANTITY of land situated near FAC in DATE . After consulting specialists in forestry , he decided that the nature of the land made it suitable for a commercial nursery . The applicant submitted that he had fenced the property with posts and planted CARDINAL spruce trees on it . He intended to sell them as DATE trees . The applicant used tree shelters made of woollen fabric and a chemical repellent to prevent damage caused by game . The Government submitted that the applicant had failed to \u201c properly secure \u201d his property from game and hunters .","During DATE PERCENT of the trees were damaged by game . The applicant estimated his loss at ORG CARDINAL . He replaced destroyed trees but in DATE game again damaged trees . The Government contested the applicant 's estimate .","Furthermore , the applicant submitted that on numerous occasions he met on his plantation NORP and foreign hunters accompanied by a forest warden ( le\u015bniczy ) . When the applicant asked the forest warden why they hunted on his private property he was told that his land had been leased to the local hunting club ( GPE \u0142owieckie ) . It followed that the hunters could take game on the applicant 's land whether he objected to it or not , whereas the applicant himself had no right to hunt on his property . In addition , the forest warden stated that although he could see damage to the applicant 's property caused by game , according to law nobody was responsible for it .","Subsequently , the applicant complained to ORG ( ORG w ORG ) , ORG ( PERSON w ORG ) , the ORG and the local hunting club which leased his property .","In a letter of DATE ORG observed that the applicant 's claim concerned damage caused to a nursery and informed him that according to LAW DATE compensation could be obtained only for damage to harvested crops or crops under cultivation . Moreover , the applicant was advised to approach the local hunting club in order to start co - operation in protecting his property from damage . Finally , he was informed that under LAW DATE he could apply for a subsidy to reimburse the cost of planting new trees if his property was covered by the official zoning map .","On DATE the applicant received a letter from the ORG which stated :","\u201c In reply to your letter ( ... ) concerning damage to your nurseries caused over DATE by game \u2013 for which you can not obtain compensation \u2013 unfortunately I do not have good news for you . I should explain the following :","CARDINAL ) NORP The question whether compensation should be paid is regulated by law ( ... ) . However , the currently binding law \u2013 as before \u2013 is very unfavourable to you and many other individuals . The presently binding regulations , i.e. LAW of DATE ( ... ) and LAW of DATE ( ... ) allow only very limited liability for damage caused by game . According to those regulations , such a liability , i.e. an obligation to pay compensation , exists only in the following cases :","( a ) damage caused by bison , bears and beavers , or","( b ) if damage is caused to harvested crops and crops under cultivation DATE also by ( ... ) boars , elks , deer , fallow deer and roe deer ( ... ) . However , damage caused by other species does not result in such liability . It follows that those who suffered damage [ caused by such species ] do not have legal grounds and possibilities to obtain compensation , as neither ORG , i.e. organs of public administration , nor any other institution is obliged to pay compensation .","CARDINAL ) NORP The Ombudsman has considered that such a legal situation ( ... ) should be changed since it is unfair and detrimental to citizens . The PERSON and ORG are competent to introduce changes to legislation which would create liability for damage caused by game . ( ... ) In DATE , when LOC was being considered by the PERSON , the ORG pointed out to the Speaker of the PERSON \u2013 not for the first time DATE that the legal regulation of that subject - matter should be changed ( ... ) . Unfortunately , the PERSON adopted PERSON without taking into account the ORG 's submissions and did not extend liability for damage to all kinds of damage caused by game but instead practically repeated old regulations .","Therefore , the legal regulation of that subject - matter has not been changed . Even if in the future the PERSON changes ( ... ) the regulations ( ... ) , it will not be possible to receive compensation for damage suffered before the change [ of legislation ] because new regulations will not apply retroactively to damage caused before the date on which new regulations enter into force .","The legislation presently in force does not provide for the liability of either ORG or any other institution for damage caused , inter alia , in crops other than agricultural and therefore there is no legal i.e. judicial avenue to claim effectively compensation precisely because there are no legal grounds for such a claim . ( ... ) \u201d","Article CARDINAL , in so far as relevant , provides : ( ... )","NORP The official zoning map ( ... ) designs grounds to be afforested .","( ... )","NORP The owners ( ... ) of grounds can obtain subsidies from the ORG budget for full or partial reimbursement of the costs of afforesting grounds referred to in paragraph CARDINAL . The decision concerning the grant of subsidy to cover those costs is made by the mayor after receiving an application from an owner ( ... ) and the opinion of the county council .","\u201c Game , for the nation weal , is the property of ORG . \u201d","\u201c Game taken on hunting grounds ( obw\u00f3d \u0142owiecki ) in compliance with the legal regulations belongs to the lessee or manager of the hunting grounds , and on the land not pooled into hunting grounds \u2013 to the State Treasury \u201d","\u201c Hunting grounds consist of an area not smaller than QUANTITY on which there exist conditions for hunting . \u201d","\u201c The Governor [ establishes the borders of ] hunting grounds and changes the borders of hunting grounds within his province by way of an ordinance which is issued after receiving an opinion of the Regional Director of ORG and ORG . \u201d","\u201c Hunting grounds are leased to the local hunting clubs of ORG . \u201d","\u201c CARDINAL . The lessee shall settle the rent received between the forest administration and the counties .","The forest administration shall receive a part of the rent proportionate to the area of ORG - owned land [ pooled in hunting grounds ] , whereas counties shall receive [ a part of the rent proportionate to ] the remaining area of the hunting grounds .","( ... ) \u201d","\u201c ORG is a union of physical and legal persons who actively participate in the preservation and development of game and act to preserve nature . \u201d","\u201c CARDINAL . Local hunting clubs are unions of physical persons and are units of ORG for the purposes of hunting .","Hunting clubs are legal persons liable for their obligations . \u201d","\u201c The tasks of the NORP ORG include :","NORP hunting management ;","NORP taking care of the development of hunting and co - operating with the ORG administration , local government , units of ORG , national parks and other organisations in the preservation of nature , in the preservation and development of game and other wild animals ,","taking care of the hunting heritage ,","( ... ) \u201d","\u201c CARDINAL . Hunting is allowed after the consent of the lessee or manager of the hunting grounds has been obtained .","Proof of membership of ORG certifying appropriate qualifications and a hunter 's firearms licence ( ... ) are required to hunt .","PERSON 's qualifications shall be certified after an examination before a commission set up by ORG .","( ... ) \u201d","\u201c The lessee or manager of the hunting grounds shall compensate damage caused :","NORP to harvested crops and crops under cultivation by boars , elks , deer , fallow deer and roe deer ,","NORP during the hunt . \u201d","\u201c CARDINAL . The owners ( ... ) of agricultural and afforested grounds shall , as needed , co - operate with the lessees and managers of the hunting grounds in securing them against damage referred to in DATE .","NORP If there is a disagreement between the owner ( ... ) of a ground and the lessees and managers of the hunting grounds , as to the amount of compensation for damage referred to in LAW , the parties may request the ( ... ) local council to mediate a settlement . \u201d","\u201c ORG , ORG and Forestry in agreement with the Minister of Agriculture shall issue a resolution concerning detailed rules and procedures of damage assessment and payment of compensation for damage caused to crops under cultivation and harvested crops . \u201d","\u201c The State Treasury shall be responsible for damage caused by game under permanent protection \u201d","According to the materials submitted by the applicant , in DATE ORG charged foreign hunters ORG CARDINAL for each taken medium - seized deer . The ORG invested those funds in the preservation of forests .","Article CARDINAL ( CARDINAL ) of LAW of DATE provides , in so far as relevant , as follows :","\u201c Everybody whose constitutional freedoms and rights have been violated , shall have a right to ( ... ) lodge a complaint with ORG concerning the conformity with LAW of a law or any other regulation , which was a basis on which a court or an organ of public administration decided about his freedoms , rights or obligations provided by LAW . \u201d","LAW reads , in so far as relevant , as follows :","\u201c The Constitutional Court shall adjudicate cases concerning :","the conformity of laws and international agreements with the LAW ,","the conformity of ratified international agreements ( ... ) ,","the conformity of laws issued by the central organs of the state , with the LAW , ratified international agreements and laws ,","the conformity of the aims and activities of political parties with the LAW ,","the ORG complaint , referred to in LAW . \u201d","Article CARDINAL of the LAW provides , in so far as relevant , as follows :","\u201c CARDINAL . Decisions of ORG are binding and final .","Decisions of ORG in cases referred to in Article CARDINAL shall be published ( ... ) .","A decision of the Constitutional Court shall enter into force on DATE on which it is published ; however , ORG may set a different time - limit for the overturning of [ unconstitutional ] legislation to take effect . Such a time - limit shall not exceed DATE in cases concerning a law , and DATE in cases concerning other types of legislation . In respect of decisions resulting in financial outlays not provided by the budget law , a time - limit shall be set after the ORG acquaints itself with the opinion of ORG .","A decision of ORG declaring unconstitutional ( ... ) a piece of legislation , according to which a case was decided ( ... ) is a basis for re - opening the case . ( ... ) \u201d","LAW provides :","\u201c CARDINAL . Republic of GPE shall protect property and a right to inherit .","Expropriation is allowed only in the public interest and with just compensation . \u201d","Article CARDINAL of the Code of Civil Procedure provides , in so far as relevant :","\u201c \u00a7 CARDINAL . A case may be reopened also when ORG declared unconstitutional a legal act ( .. ) on which a judgment was based .","\u00a7 CARDINAL . In the circumstances described in \u00a7 CARDINAL an application for reopening shall be lodged within DATE after the entry into force of ORG decision . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-115005","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2012,"docname":"CASE OF ROTHE v. AUSTRIA","importance":4,"conclusion":"No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)","judges":"Anatoly Kovler;Elisabeth Steiner;Erik M\u00f8se;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska","text":["At the material time the applicant was the deputy principal of the St ORG seminary , where future NORP priests are trained . In addition , he was private secretary to the bishop of the GPE diocese , Bishop PERSON . He resigned from his post as deputy principal in DATE and is currently living in GPE .","In the issue of the DATE news magazine ORG an article was published on searches carried out by police in the PERSON ORG seminary . According to the article , police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet . The article further stated that , according to rumours , police had also found photographs showing seminarians engaging in homosexual activities , and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority . The article was accompanied by a photograph of the principal of the seminary , showing him standing in a garden , and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian . He denied involvement in any such incidents .","NORP In its issue of CARDINAL DATE ORG published an article entitled \u201c Go on ! \u201d ( Trau dich doch ) , with the sub - heading \u201c NORP scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray . First the principal and now the deputy principal have resigned . High - ranking dignitaries expect PERSON [ the bishop of the diocese ] to be removed from office . \u201d","The article stated that the applicant and the principal of the seminary had had sexual relations with seminarians , but clarified that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported DATE . The article further reported that some seminarians had downloaded pornography and child pornography onto their computers . According to the article , the existence of homosexual relations was well known within the seminary and was even known to the bishop , who had tried to \u201c hush up \u201d the case at first . The article contained CARDINAL photographs of the applicant , CARDINAL on which he was about to embrace a seminarian , PERSON , and another one on which he and PERSON were about to kiss each other . On this photograph the applicant \u2019s eyes are closed and his mouth is half open . The photographs had been taken by CARDINAL of the seminarians at a DATE party in the applicant \u2019s private apartment on DATE . In the article the applicant was identified by name while the DATE \u2019s identities were not disclosed . Likewise , on the published photographs , the applicant \u2019s face was visible while that of the seminarian was blurred . The article quoted the applicant as saying that the photographs could be interpreted in different ways and that , at the DATE party in question , all the participants had embraced each other in a friendly manner .","On DATE , the applicant initiated proceedings under LAW ( Mediengesetz ) against ORG , the publisher of ORG , in respect of the article published on DATE . Relying on sections CARDINAL and CARDINAL of the said LAW , he requested compensation for defamation ( \u00fcble GPE ) and for the violation of his strictly personal sphere ( h\u00f6chstpers\u00f6nlicher Lebensbereich ) caused by the publication of the photographs and the impugned article , especially the following passages :","\u201c Porn scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray . \u201d ; \u201c A painful truth : PERSON \u2019s principal engaged in sex with subordinates , also PERSON \u2019s private secretary and legal adviser ... \u201d ; \u201c Photos showing , among others , seminarians from PERSON in kinky situations , in some cases with their superiors ... and because they were doing it with the boss and his deputy too , it was all quite normal and they felt perfectly safe ... \u201d","The publisher of ORG replied that the content of the article was true . The company also argued that in the light of ORG position condemning homosexuality , and the fact that the applicant was responsible for the training of future priests in the seminary , the public had an interest in knowing about the situation at the seminary . Moreover , the applicant was the private secretary of PERSON , who had repeatedly and publicly condemned homosexuality as being a sin and an aberration . Consequently , there was a connection with public life . The article was thus lawful by virtue of the right to freedom of expression guaranteed by LAW .","On DATE , after holding several hearings at which evidence was heard from a number of witnesses , ORG ( PERSON , hereinafter \u201c the Regional Court \u201d ) dismissed the applicant \u2019s request for compensation .","ORG observed that a large percentage of readers of the DATE ORG that had published the impugned article and the photographs would read the news magazine in only a cursory manner and would also consult other media before forming their opinion . Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians , and that there existed photographs to support this . The published photographs showed not merely a kiss on the cheek but a NORP kiss . The sexual nature of the kiss was visible from the fact that the applicant had his eyes closed and his mouth open with his tongue visible . Since the article had also stated that previous rumours about sexual coercion of seminarians by their superiors had not been confirmed , it was made clear that the QUANTITY men had had a consensual relationship .","Giving a detailed assessment of various witness statements , ORG found it established that the applicant had had a homosexual relationship with a seminarian , PERSON , in which he had openly engaged at the ORG seminary . CARDINAL witness had stated , for instance , that the CARDINAL men were wearing rings with each other \u2019s names engraved on them together with the date of the beginning of their relationship . Moreover , CARDINAL of the published photographs showed the applicant exchanging a NORP kiss with the seminarian PERSON photograph had been taken in the applicant \u2019s apartment , which was placed at his disposal by the diocese , during a DATE party attended by a number of seminarians . The statement by the applicant quoted in the article , according to which the photographs could be interpreted in different ways , would lead the reader to conclude that the photographs had not been manipulated before publication . ORG thus held that the publisher had succeeded in proving that the facts contained in the article were in essence true .","A request by the applicant to obtain the opinion of an expert in photographic analysis was rejected , as expert opinions were only to be taken if the resolution of a question of fact required expert knowledge which the court did not possess . Where the judge was able to assess the evidence on the basis of his or her own knowledge , no expert opinion was required . ORG noted that the applicant had not alleged that the photograph had been manipulated . It could therefore be assessed without the help of an expert .","Owing to the considerable importance of ORG as a role model , the public had a great interest in knowing what was going on within the ORG . The public also had an interest in what happened in the seminary , especially since it had become known that pictures containing child pornography had been downloaded from the Internet . The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life . The applicant , as the deputy principal of the seminary , was a public figure in that capacity . Even though the impugned pictures had been taken in his private residence there was a connection to his public life . While accusing a dignitary of ORG of having homosexual contacts constituted the actus reus of defamation within the meaning of section CARDINAL of LAW and exposed his strictly personal sphere within the meaning of section CARDINAL of LAW , the publisher had proved that the reported facts were essentially true . Thus , the applicant \u2019s claim for compensation had to be dismissed .","The applicant lodged an appeal on points of law and fact with ORG ( Oberlandesgericht ) . ORG , after holding a hearing , dismissed the appeal in a judgment of DATE .","ORG upheld the judgment of ORG , holding that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true . Regarding the applicant \u2019s complaint that the publisher had not proved that there had been a homosexual relationship between him and a seminarian , ORG found that the photographs of the CARDINAL men hugging and kissing , together with the evidence from a witness who stated that he had seen them repeatedly exchanging NORP kisses at the DATE party , was sufficient to prove that such a relationship had existed . As to the complaint that the first - instance court had refused to obtain an opinion from an expert in photographic analysis , ORG found that the judge had rightly held that she could interpret the photographs for herself . Furthermore , the finding that the applicant and the seminarian PERSON had had a homosexual relationship was based not only on the photographs but first and foremost on a witness statement . The court further held that , in reporting on photographic evidence of seminarians in \u201c kinky situations \u201d , the publisher had provided proof that the statements were true . The average reader of the magazine would understand the term \u201c kinky \u201d to mean a deviation from what was considered normal , which would include photographs of priests and seminarians in a sexual pose wearing clerical clothing , especially as the persons concerned belonged to a group who publicly spoke out against homosexuality and denounced homosexual contacts as sinful . ORG went on to state as follows :","\u201c The appellant argues that the substantive law was also incorrectly applied ... because the court found that the published material was connected with \u2018 public life\u2019 . In his view , the public interest in occurrences within an institution did not warrant a report which identified individuals , particularly when the report dealt with their strictly personal sphere and the individuals concerned had not been in the public eye . He had merely been deputy principal of the PERSON seminary , a purely internal function within the ORG which had no external dimension ; accordingly , there had been no grounds for any interference with the intimate sphere of his private life .","The court is not convinced by this argument . ORG , to which the majority of the NORP population belongs and which , according to LAW ( BGBl . II No . CARDINAL\/CARDINAL ) , has public - law status , has a level of importance in GPE going beyond that of a small association , as is clear from the overall content of the ORG and the circumstances in which it was ratified . Accordingly , conduct on the part of ORG dignitaries which is in flagrant contradiction with NORP teachings may very well be of public interest , particularly where DATE as in the present case \u2013 homosexual contacts take place and are maintained , albeit on a consensual basis , between staff and students in an educational establishment and between students themselves . ORG strives for acceptance and credibility among the public at large , and the activities of a principal and a deputy principal , as the persons in charge of a training college for future priests , have a public dimension . ORG is engaged in public relations work in many spheres and regularly makes its views on ( sexual ) morality known to the population as a whole , with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach , condemning homosexuality as a sin in public while practising it in private , even between staff and students . It should also be taken into consideration that the teachings of ORG on the subject of homosexuality are contrary to the fundamental right to sexual self - determination under LAW and to the prohibition on discrimination ; hence , on this basis also , there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their ORG \u2019s teachings on sexual morals . This is even more so where the reports concern homosexual contacts between a teacher and his students . Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students . The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law .","The exposure and public condemnation of such misconduct is thus in any event in the public interest ; the same is true of the reports identifying those concerned , without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of \u201c public watchdog \u201d . The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails . The professional activity of an ordained priest who is active in public life , as a clergyman , as deputy head of a seminary and as a close adviser and secretary to the bishop , does not take place merely within the ORG ; ORG has an important and , in some respects even a ORG role , and the credibility of its officials , who demand moral standards from the population and compliance with the ORG \u2019s rules of community life , occupies an important position in that regard . In particular , the fact that the events involved students who , as future officials of ORG are supposed to be taught these moral precepts by example , lends those events a public - interest dimension extending beyond the ORG itself and affects all sections of the population .","Furthermore , the applicant was widely involved in public relations work not just through the training of priests but also through his role as secretary and legal adviser to the bishop ; this serves as further justification for lending greater weight to the report identifying him than to his interest in preserving his anonymity , and for holding that there was a direct connection with public life .","... \u201d","ORG concluded that , since the article had reported essentially true facts and there was a public interest in their being reported , ORG had rightly rejected the applicant \u2019s request for compensation . The judgment was served on the applicant \u2019s counsel on DATE .","Section CARDINAL of LAW provides for the strict liability of the publisher , inter alia in cases of defamation . The victim can thus claim damages from the publisher . LAW provides as follows :","\u201c ( CARDINAL ) Where a medium publishes statements which constitute the actus reus of disparagement , insult , derision or defamation the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered ... \u201d","( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply ...","NORP in the case of defamation","( a ) [ where ] the statements published are true or","...","( CARDINAL ) Where the publication concerns the strictly personal sphere , a claim under subsection CARDINAL shall be excluded only on the grounds set forth in ... subsection CARDINAL ) ... ; the case of subsection CARDINAL ) , this shall not apply where the published facts are directly related to public life . \u201d","Section CARDINAL of LAW provides a claim for damages in cases of interference with the strictly personal sphere of an individual \u2019s life . It reads as follows :","\u201c ( CARDINAL ) If the strictly personal sphere of an individual \u2019s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned , he or she shall have the right to claim compensation for the damage sustained from the media proprietor ( publisher ) . ...","( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply where","( i ) ...","( ii ) the statements published are true and are directly related to public life ;","( iii ) ... \u201d","For the purpose of LAW of LAW \u201c defamation \u201d is to be understood as defined in LAW ) , which reads as follows :","\u201c ( CARDINAL ) Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...","( CARDINAL ) Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...","( CARDINAL ) The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . \u201d","Section CARDINAL of LAW , in so far as relevant , reads as follows :","\u201c ( CARDINAL ) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or , if they have died without having authorised or ordered publication , those of a close relative . \u201d","Article CARDINAL of LAW ( Allgemeines B\u00fcrgerliches Gesetzbuch ) provides as follows :","\u201c ( CARDINAL ) Anybody who , as a result of defamation , suffers real damage or loss of profit may claim compensation .","( CARDINAL ) The same shall apply if anyone disseminates allegations which jeopardise a person \u2019s reputation , income or livelihood , the untruth of which was known or should have been known to him or her . In this case there is also a right to claim a retraction and the publication thereof ... \u201d","The ORG refers to this resolution , adopted by ORG of ORG on DATE . Its relevant passages are reproduced in GPE v. GPE ( no . CARDINAL ) ( [ ORG ] , ORG . CARDINAL and GPE , \u00a7 DATE , ECHR DATE ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23468","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2003,"docname":"SZOTT-MEDYNSKA AND OTHERS v. POLAND","importance":3,"conclusion":"Inadmissible","judges":"Georg Ress;Mark Villiger","text":["The first applicant , PERSON , is a NORP national , born in DATE . She runs a family business together with the second and third applicants , PERSON PERSON and Mr PERSON . They reside in GPE . They are represented before the ORG by PERSON , a lawyer practising in FAC . The respondent Government are represented by PERSON , their Agent .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicants run a small family business . By decisions of DATE ORG found all CARDINAL applicants guilty of a fiscal offence punishable under LAW in that they had failed to pay a DATE income - tax advance on wages for their employees for DATE , in the amount of MONEY ( \u201c NORP \u201d ) . ORG imposed on each of the applicants a pecuniary penalty of ORG , to be substituted by DATE of imprisonment in case of default of payment . The penalty was imposed under LAW , stipulating sanctions for fiscal offences ( cf . distinction between \u201c fiscal crimes \u201d and \u201c fiscal offences \u201d in the \u201c Relevant domestic law \u201d below ) .","The applicants lodged an appeal against this decision with ORG , arguing that the first - instance authority had wrongly instituted the fiscal proceedings against them as no criminal offence had been committed and that , in any event , the legal classification of the offence should be changed to a more lenient one . They submitted that as soon as they had noticed their error they had informed ORG and , on DATE , had paid the income tax in arrears with the statutory interest due . Therefore , the ORG had not sustained any loss . In their submissions , their conviction was a result of an overly formalistic , impractical and unreasonable approach of the tax authorities to the business activities and the tax obligations resulting therefrom .","On DATE the ORG dismissed their appeals and upheld the contested decisions . No further appeal lay in law against this decision .","The DATE LAW ( Ustawa Karna Skarbowa ) , applicable at the material time , distinguished CARDINAL types of wrongful acts in the area of fiscal law : \u201c fiscal crimes \u201d and \u201c fiscal offences \u201d ; fiscal offences being a category of less serious acts .","LAW defined fiscal crimes as wrongful acts punishable by imprisonment , limitation of liberty or a fine between PLN CARDINAL and PLN CARDINAL,CARDINAL,CARDINAL . By virtue of LAW , additional sanctions could be imposed for fiscal crimes such as : deprivation of civil rights , prohibition to exercise certain activities , confiscation of an object , and publication of the court judgment by which the offender was convicted .","Articles CARDINAL and CARDINAL of LAW defined fiscal offences as wrongful acts punishable by a \u201c pecuniary penalty \u201d ( as distinguished in terminology from \u201c fine \u201d ) MONEY . Under LAW , the additional sanction of confiscation of an object could also be imposed for a fiscal offence where the LAW expressly provided therefor .","Under LAW , certain provisions of LAW of DATE , defining general notions of criminal responsibility , were applicable in proceedings concerning fiscal offences . The provisions in question concerned , inter alia , the definition of a punishable act , the prohibition of retroactivity , the definition of intentional and non - intentional offence , the age limit for liability , notions of attempted offence and aiding and abetting , the circumstances justifying exclusion of criminal liability , and the principles applicable to the determination of criminal sanctions .","As provided by LAW , when pecuniary penalty exceeding ORG CARDINAL is imposed , it may be substituted by DATE imprisonment in default of payment .","Pursuant to LAW , the courts were competent to examine cases concerning fiscal crimes punishable by imprisonment or limitation of liberty . Under LAW , cases concerning fiscal crimes in which only fines could be imposed , and cases concerning fiscal offences , were examined by fiscal administrative boards .","Article CARDINAL of the Act stated that decisions given in proceedings concerning fiscal crimes and offences could be appealed against if the law so provided . The remedies were the following : an appeal , a request that the case be examined by a court , and an appeal against interlocutory decisions .","Under LAW , in cases concerning fiscal crimes , a party to the proceedings could choose between an appeal to a higher administrative authority or a request that the case be examined by a court . An option to use one remedy barred the use of the other . In proceedings concerning fiscal offences , however , only an appeal to a higher administrative authority could be lodged .","On DATE a legislative amendment to LAW was adopted to the effect that the demand that the case be examined by the court became available also with respect to fiscal offences . It entered into force on DATE .","Subsequently , with effect as of DATE , the new LAW replaced the DATE LAW . According to the new law , the courts are competent to examine all cases concerning fiscal crimes and fiscal offences .","On DATE , the new LAW entered into force in GPE . Article CARDINAL \u00a7 CARDINAL of the LAW provides as follows :","\u201c In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . \u201d","At the material time , the complaint had to be lodged within DATE from the date on which the individual decision was served ( Article CARDINAL \u00a7 CARDINAL of ORG ) . This time - limit was extended to DATE with effect as of DATE . Article CARDINAL of the LAW , insofar as relevant provides as follows :","\u201c CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .","Judgments of ORG , ... shall be published without delay .","A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . Where a judgment has financial consequences not provided for in the ORG , the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned , after seeking the opinion of ORG .","A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a legally effective judgment of a court , a final administrative decision or settlement of other matters was issued , shall be a basis for re - opening proceedings , or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings . \u201d","Article CARDINAL of LAW , as amended by LAW , provides , insofar as relevant , as follows :","\u201c The Minister of Finance , in the exercise of his supervisory powers , shall , ex officio or upon request , amend or quash a final decision ... rendered on the basis of the legal provision which was found by ORG to be in contravention of the LAW , international agreement or statute .... \u201d","Article CARDINAL \u00a7 CARDINAL of LAW , provides , insofar as relevant :","\u201c ORG should discontinue the proceedings ... when :","[ ... ]","normative act challenged ... lost its binding force before the judgment of ORG was delivered . \u201d","With effect as of DATE , an amendment was introduced which allows ORG to continue the proceedings if it considers it necessary for the protection of constitutional rights and freedoms .","Article CARDINAL \u00a7 CARDINAL of the LAW provides :","\u201c Within DATE of the day on which the LAW comes into force a judgment of ORG of the non - conformity with LAW of statutes adopted before its coming into force shall not be final and shall be required to be considered by the PERSON which may reject the judgment of ORG by a CARDINAL majority vote in the presence of CARDINAL of the statutory number of Deputies . The foregoing provision shall not concern judgments delivered by ORG upon requests for preliminary rulings . \u201d","It was controversial among legal writers in GPE whether the PERSON was also empowered to reject judgments delivered upon individual complaints as this category was not expressly excluded from the scope of this provision . The issue had not arisen in practice as the PERSON has never rejected ORG judgments on individual complaints and the transitional period of DATE , referred to in the above provision , expired on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58257","languageisocode":"ENG","respondent":"GBR","branch":"GRANDCHAMBER","date":1998,"docname":"CASE OF OSMAN v. THE UNITED KINGDOM","importance":2,"conclusion":"No violation of Art. 2;No violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings","judges":"Franz Matscher;John Freeland;R. Pekkanen;Simon Brown","text":["The applicants are NORP citizens resident in GPE . The first applicant , PERSON , was born in GPE in DATE . She is the widow of Mr PERSON who was shot dead by Mr PERSON on DATE . The second applicant , PERSON , is her son , born in GPE in DATE . He was a former pupil of PERSON at ORG . PERSON was wounded in the shooting incident which led to the death of his father .","The applicants complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that PERSON represented a serious threat to the physical safety of PERSON and his family . There is disagreement between the applicants and the respondent ORG on essential aspects of the circumstances leading to the tragedy . The applicants have disputed in this respect the completeness of the facts as found by the ORG .","In DATE the headmaster of ORG , PERSON PERSON , noticed that one of his teaching staff , PERSON , had developed an attachment to PERSON , a pupil at the school . According to a statement which he made to the police on DATE , Mr Prince indicated that he \u201c made a point of personally keeping an eye on the situation \u201d . As a result of this attachment , ORG informed Mr Prince that he intended to leave the school and become a supply teacher . Mr PERSON , a deputy head teacher , spoke with ORG and managed to persuade him to remain at the school .","NORP In DATE Mrs Green , the mother of PERSON , another pupil at the school and the ORG neighbour , telephoned Mr Fleming \u2013 another deputy head teacher \u2013 to complain that ORG had been following her son home after school and harassing him . She alleged that ORG had been spreading rumours that her son had engaged in deviant sexual practices and that he objected to her son \u2019s friendship with PERSON . Mrs Green made a formal complaint to this effect to Mr Prince on DATE .","On DATE Mr Perkins interviewed PERSON , who confirmed that ORG had been following him and had been spreading rumours of a sexual nature about him because of his friendship with PERSON PERSON .","Also on DATE Mr ORG interviewed PERSON . In the typed record of this interview dated DATE , PERSON confirmed that ORG had warned him about PERSON , accusing PERSON of sexual misconduct with another boy at the school . PERSON also reported to Mr ORG during the interview that on CARDINAL occasion ORG had followed PERSON and himself home in his car . He also stated that ORG had asked him to come and see him in his classroom at lunch times , apparently to learn NORP , and that ORG had taken photographs of him and given him money , a pen and a NORP dictionary . However , he later took the pen and deliberately snapped it in half during a lesson .","On DATE Mr Perkins interviewed ORG . In the course of the interview ORG stated that he had a special relationship with PERSON which had developed over a period of a year and which PERSON was trying to disrupt and that he was so upset on CARDINAL occasion that he confronted PERSON and accused the boy of being a sexual deviant . He admitted that he had followed PERSON home on CARDINAL occasion and had waited outside his GPE house for TIME . ORG mentioned to PERSON Perkins that he had told PERSON that he would become \u201c very angry \u201d if anything happened to his relationship with PERSON , although he indicated to PERSON Perkins that this was not to be seen as a threat . He also acknowledged that he had given PERSON money and presents , and had taken photographs of him for \u201c sentimental reasons \u201d . In a later memorandum dated CARDINAL DATE , Mr PERSON described PERSON as having been in a highly irrational state during this interview and unwilling to admit that his behaviour displayed a serious lack of wisdom and professionalism .","On DATE ORG submitted a written statement to Mr PERSON regarding the complaint made by PERSON Green . In his memorandum of CARDINAL DATE ( see paragraph CARDINAL above ) Mr PERSON stated that he found the statement \u201c disturbing \u201d since it showed clearly that PERSON - Lewis was \u201c overpoweringly jealous \u201d of the friendship between PERSON PERSON and PERSON and provided clear evidence that he \u201c was not in control of his emotions \u201d . PERSON was presented as devious , malicious and an evil influence .","Mr PERSON again interviewed PERSON - Lewis on his written statement during which he pointed out his concerns about the content of the statement and suggested to ORG that he seek psychiatric help . Mr Perkins informed Mr Prince of everything which had happened up until DATE .","Prior to CARDINAL DATE Mr Prince had an informal discussion with ORG in which he admitted telling pupils at the school that Leslie Green had engaged in acts of oral sex with PERSON in revenge for rumours spread by PERSON concerning his relationship with PERSON .","On CARDINAL DATE PERSON formally interviewed PERSON on the basis of the notes of the interview between ORG and PERSON Perkins . The contemporaneous notes taken of the meeting reveal that ORG admitted that he had become attached to PERSON ; that he had accused PERSON of trying to turn PERSON against him ; and that he had parked outside PERSON \u2019s house to show that he was not to be scared away . ORG denied that he had accused PERSON of deviant sexual practices . The notes of the meeting conclude with the sentence \u201c the situation has now escalated and PERSON has no confidence in his own ability to contain it \u201d .","Mr Prince was informed on DATE in an interview with PERSON and his mother that ORG had been spying on PERSON PERSON and that ORG had told PERSON that \u201c he knew where his mother worked and how much money she earned and that if PERSON left school , he would find him \u201d .","During this period another deputy head teacher , Mr GPE , also interviewed PERSON on a number of occasions . These interviews revealed that ORG had told PERSON that he would be able to find him if he left the school . ORG claimed to have discovered PERSON \u2019s previous address and the name of his previous school and said he had visited the area and had spoken to his former neighbours .","On DATE Mr Prince met with the PERSON family to explain his concerns about the interest ORG had taken in PERSON . He explained that the school was quite satisfied that nothing improper had taken place between ORG and PERSON . He told them that the school would monitor the situation closely to ensure that PERSON would be safe . PERSON was told never to be alone with ORG . During this meeting PERSON \u2019s mother expressed her wish that her son should be transferred to another school .","According to the diary of Mr Prince between DATE and CARDINAL DATE he met with PC PERSON on CARDINAL occasions . The applicants state that during these meetings information concerning PERSON - Lewis\u2019 conduct towards PERSON was passed on to the police . The Government state that PC PERSON had no recollection of being told about the presents which ORG had given to PERSON or that ORG had followed PERSON home . PC PERSON did not keep any record of the meetings , nor did he make any report concerning the nature and extent of the information that was communicated to him , or if he did no such record now exists . The Government stress that all concerned were satisfied that there was no sexual element to PERSON - Lewis\u2019 attachment to PERSON and the matter could be dealt with internally by the school .","By DATE graffiti had appeared at CARDINAL locations around the school which read \u201c PERSON , do not forget to wear a condom when you screw PERSON or he will get Aids . \u201d The words had been written with spray paint and a stencil .","Following the discovery of the graffiti , Mr Perkins interviewed ORG and asked him if he was responsible . He denied this . However , PERSON PERSON noted in his report that PERSON - Lewis knew the precise wording and the exact locations of all the graffiti .","On DATE a further discussion took place between Mr Prince and the PERSON family regarding PERSON \u2019s transfer to another school . For his safety Mr PERSON told PERSON not to give his new school address to anyone from ORG . While attempting to arrange his transfer , Mr GPE discovered that the files relating to PERSON and PERSON Green had been stolen from the school office . The file relating to staff disciplinary matters was also found to be missing .","Mr ORG considered that the stolen files were the likely source of the information that ORG had acquired about PERSON previous address and school ( see paragraph DATE above ) . He subsequently questioned ORG , who denied any involvement in the theft and denied having made any comments about PERSON \u2019s previous address and school or visiting the area in which PERSON used to live .","On DATE PERSON was transferred to a different school , but owing to curriculum difficulties he had to return to ORG DATE .","On DATE , ORG changed his name by deed poll to PERSON . On CARDINAL DATE , Mr PERSON wrote to ORG ( ORG ) informing them that ORG had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of PERSON . He also stated that he was of the opinion that ORG should be removed from the school as soon as possible .","On CARDINAL DATE Mr Prince spoke with CARDINAL police officers , Detective Chief Inspector PERSON and Detective Inspector PERSON . According to the applicants during this meeting the headmaster informed them of the missing files and the graffiti incident and discussed the fact that PERSON - Lewis\u2019 real name was PERSON . He had previously changed his name by deed poll to name himself after a pupil called ORG whom he had taught at ORG . The Government state that the CARDINAL police officers have no recollection of having been informed of these matters .","Following his letter of CARDINAL DATE ( see paragraph CARDINAL above ) , Mr Prince wrote to ORG at ORG in a letter dated CARDINAL DATE stating that while he believed PERSON needed medical help , his continued presence in the school jeopardised the welfare , safety and education of the pupils . An internal memorandum from ORG at ORG dated DATE makes reference to \u201c a fear that [ ORG ] might seek to take the boy out of the country \u201d and that the police are investigating the complaint that \u201c he has removed certain files about the matter from the school \u201d .","ORG notes written by the same official DATE indicate that it was feared that PERSON may be harmed and that by changing his name ORG may abscond with the boy . The notes refer to the fact that the police had stated that PERSON should contact them if PERSON goes missing for TIME . In addition , the police would investigate the disappearance of the missing files , search PERSON - Lewis\u2019 home and check up on his background .","The Government deny that the police said that they should be contacted if PERSON went missing or that they intended to search PERSON - Lewis\u2019 house .","On DATE ORG was seen by PERSON , the ORG psychiatrist . PERSON was provided with , inter alia , the documents showing PERSON - Lewis\u2019 change of name ; the records of the interviews conducted in DATE ; and the memorandum prepared by PERSON on CARDINAL DATE ( see paragraph CARDINAL above ) . PERSON reported :","\u201c This teacher must indeed give cause for concern . He does not present ill in formal terms , nor does he seem sexually deviant . He does have personality problems , and his judgment regarding his friendship with a pupil is reprehensibly suspect . \u201d","Dr ORG recommended that ORG remain teaching at the school but that he should receive some form of counselling and psychotherapy .","On or CARDINAL DATE , a brick was thrown through a window of the applicants\u2019 house . The police were informed and a police officer was sent to the house and completed a crime report . On CARDINAL occasions in DATE the tyres of PERSON car were deliberately burst . Both incidents were reported to the police , but no police records relating to the offences can be found .","On DATE Mr Prince requested ORG to take sick - leave . On DATE ORG was examined again by Dr ORG . He described a continuing strong urge to speak with PERSON and said that he felt angry that PERSON seemed content with the situation of non - contact . PERSON concluded that under the circumstances , PERSON should remain away from ORG and was designated temporarily unfit to work .","ORG subsequently informed PERSON that he would be taking medical leave for the remainder of the school term . He then left ORG and did not return again .","On DATE , following a further interview with ORG , Dr ORG recommended that he should no longer teach at ORG and that transfer on medical grounds was strongly and urgently recommended .","On DATE PERSON telephoned Mr Perkins making further complaints about ORG following her son . She also informed him that she had sent her son to stay with her sister .","On DATE , ORG was suspended pending an ORG investigation for \u201c unprofessional behaviour \u201d towards PERSON . He submitted a statement dated CARDINAL DATE in which , inter alia , he admitted taking photographs of PERSON and giving him money but denied stealing files or painting graffiti . He accused PERSON PERSON of lying about him and said that Mr PERSON has stated his intention of breaking him .","On DATE , ORG sent a letter to ORG officially reprimanding and severely warning him but lifting the suspension . The letter also stated that he was not to return to ORG . Shortly afterwards he began working as a supply teacher at CARDINAL other local schools , ORG .","In DATE or DATE , a mixture of engine oil and paraffin was poured on the area outside the PERSON family home . On DATE , the windscreen of PERSON car was smashed . During DATE , in a series of incidents , the applicants\u2019 front door lock was jammed with superglue , dog excrement was smeared on their doorstep and on their car , and on CARDINAL occasion the light bulb was stolen from the light in the outside porch . Around this time all the windows of their car were also broken . All these incidents were reported to the police and on CARDINAL occasions PERSON visited GPE police station to discuss the vandalism and criminal damage to his property .","At some point during DATE , PC PERSON visited the LOC home and then spoke to ORG about the acts of vandalism . In a later statement to the police , ORG alleged that he told PC PERSON that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane . The Government deny that this was said , and refer to the fact that during the interview with PC PERSON denied any involvement in the acts of vandalism and criminal damage . No detailed records were made by PC PERSON of his contacts with ORG or the PERSON family . Any entries in notebooks or duty registers ( crime reports or parade books ) could not later be traced by ORG .","On DATE a car driven by ORG collided with a van in which PERSON was a passenger . According to the driver of the van , ORG claimed that his accelerator had jammed and that he could not help what happened . After the police arrived at the scene of the accident they cautioned ORG , and provided him with a form requesting him to produce his driving documents .","On DATE ORG attended GPE police station and produced his driving documents for inspection . Since he failed to produce a road worthiness ( MOT ) certificate for his car he was cautioned by the police .","NORP In a statement taken by the police on CARDINAL DATE from the driver of the van that had been allegedly rammed by ORG , the driver recalled that after the accident ORG had said : \u201c I \u2019m not worried because in DATE I \u2019ll be doing life . \u201d","On DATE , following the collision incident , Detective ORG contacted ORG stating that he wished to interview ORG and the headmaster . The applicants state that Detective ORG assured ORG that the PERSON family would be protected . The Government deny that such an assurance was given .","An ORG memorandum dated CARDINAL DATE referred to the harassment of the PERSON family and PERSON - Lewis\u2019 alleged admission of responsibility for the van collision saying that PERSON had lured PERSON away from his affections . It noted that the police were pursuing enquiries but that if nothing was heard the matter should be \u201c chased \u201d . It concluded with the note \u201c Families getting police protection \u201d .","On DATE Detective PERSON took a detailed statement from PERSON and his mother concerning , inter alia , the fact that ORG had followed PERSON home , the acts of harassment and the ORG graffiti which had appeared at the school . In his statement PERSON claimed that ORG had threatened to \u201c get him \u201d whether it took \u201c DATE or DATE \u201d . He also said that he had not been to school for DATE as he was afraid to travel there and that he had moved in with his aunt , so as to be safe from ORG .","On DATE Detective PERSON visited ORG and inspected the graffiti . A police photographer took photographs of the graffiti .","On or CARDINAL DATE Detective ORG visited the PERSON family and discussed the criminal damage and PERSON - Lewis\u2019 relationship with PERSON . The applicants allege that Detective ORG told the family that he knew ORG was responsible for the acts of vandalism , and gave them assurances that he would cause the incidents to stop . The Government deny that Detective ORG said that he knew ORG was responsible , and that he gave assurances as to the family \u2019s safety .","In his report on the case which was completed on or CARDINAL DATE , ORG observed :","\u201c It should be pointed out at this stage that there is no evidence to implicate PERSON in either of these offences [ the graffiti at the school ] or the acts of vandalism against ORG address , although there is no doubt in everybody \u2019s mind that he was in fact responsible and this was just another example of his spite . \u201d","On DATE ORG was interviewed by officers of ORG at his own request . An ORG memorandum dated DATE recorded that ORG felt in a totally self - destructive mood , stating that it was all a symphony and the last chord had to be played . He admitted being deeply in debt and as a result was selling all his possessions . He blamed PERSON for all his troubles but would not do a \u201c PERSON \u201d in a school but would see him at his home . The memorandum stated that the concerns of ORG should be passed on to the police and noted that a call was made to ORG , who was unavailable . Nevertheless , a detailed message was left with the receptionist .","CARDINAL of the officers of ORG recalled later in a statement dated DATE that ORG spoke in a manner which was very disturbing , said that he blamed Mr PERSON for the loss of his job , that he knew where he lived and that he was going to do something though not at the school . The ORG other officer recalled in her statement of DATE that ORG had stated that he was going to do something that would be \u201c a sort of PERSON \u201d . She recalled that as a result of this conversation she informed the police and the school that she considered that the head and deputy head were at risk of violence .","Although the applicants state that the content of the interview was passed on to the police , the Government deny that mention was made of the \u201c PERSON \u201d reference or that there was any suggestion that the NORP might be in danger .","On DATE after receiving the message of the officer of ORG ( see paragraph CARDINAL above ) , Detective PERSON sent a telex to the local police station near Mr Perkins\u2019 home referring to the fact that vague threats had been made and that the school authorities were very concerned . He asked them to pay casual attention to the address , giving a brief description of ORG and the registration number of his car .","On DATE Detective PERSON contacted ORG with a view to tracing ORG and was provided with his address . He requested the official at ORG to ask PERSON to contact the police . On DATE , Detective PERSON met with Mr Prince and Mr Perkins . The applicants state that he assured Mr Prince that the police would undertake the necessary measures to protect both Mr Perkins and the applicants . A diary entry of Mr Prince dated DATE refers to ORG and contains a heading \u201c PERSON \/ PERKINS \/ POLICE PRESENCE ARRANGED \u201d and a note that ORG had called \u201c to finalise arrangements re protection for ORG families \u201d . According to the Government no assurance of protection was given . Detective PERSON received the impression from his meetings with Mr Prince and Mr Perkins that ORG was angry at being removed from the school but that the anger was directed against the deputy head , who in any case did not feel in danger .","DATE . On DATE Detective PERSON and other police officers arrived at ORG house with the intention of arresting him on suspicion of criminal damage . ORG was absent . The police were unaware that he was teaching at ORG DATE .","On DATE pursuant to the request of the police , ORG sent a letter to ORG requesting him to contact ORG . The same day ORG informed the police that ORG had not attended ORG . He did not return to the school again .","In DATE the police commenced the procedure of laying an information before ORG with a view to prosecuting ORG for driving without due care and attention . In addition , PERSON - Lewis\u2019 name was put on ORG as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage .","On DATE an officer of ORG rang Detective PERSON for an update on the case but he was unavailable . DATE he returned her call saying there had been no progress .","DATE ORG travelled around GPE hiring cars in his adopted name of PERSON and was involved in a number of accidents . He spent time at his home address during this period and continued to receive mail there .","On DATE ORG broke into a car parked near a clay - pigeon shoot near GPE in GPE and stole a shotgun . He sawed off both barrels . While the theft was reported to the local police , because there was nothing to connect the incident to ORG the theft did not come to the attention of the GPE police dealing with the case .","On DATE PERSON saw ORG wearing a black crash helmet near the ORG home . According to the applicants , PERSON Green informed the police on each occasion , but her calls were not returned . The Government accept that , on DATE , Detective Sergeant ORG received a message which stated \u201c phone PERSON Green \u201d but since there was no phone number on the note he did not connect the message with the mother of PERSON .","On DATE ORG was seen near the applicants\u2019 home by a number of people . At TIME and killed PERSON PERSON and seriously wounded PERSON . He then drove to the home of PERSON Perkins where he shot and wounded him and killed his son .","Early the next morning ORG was arrested . On being arrested he stated \u201c why did n\u2019t you stop me before I did it , I gave you all the warning signs ? \u201d","DATE Paget - Lewis was interviewed by the police . According to the record of the interview , ORG said that he had been planning the attacks ever since he lost his job , and for DATE he had been watching the Osmans\u2019 house . Although he considered Mr Perkins as his main target , he also regarded PERSON and PERSON as being responsible for his losing his position at ORG . ORG stated that he had been hoping in the back of his mind that the police would stop him . He admitted holding the family at gunpoint as they returned to the house , making PERSON and PERSON kneel down in the kitchen , turning out the light and shooting at them . He denied that on earlier occasions he had damaged the windows of the Osmans\u2019 house but admitted that he had let down the tyres of their car as a prank . He also denied responsibility for the graffiti and taking the files from the school office .","On DATE ORG was convicted of CARDINAL charges of manslaughter having pleaded guilty on grounds of diminished responsibility ( see paragraph CARDINAL below ) . He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section CARDINAL of LAW DATE .","An inquest was held into the death of PERSON after the conclusion of the criminal proceedings . Since a person had been convicted in connection with the death , the Coroner did not hold a full inquest ( section CARDINAL of the Coroner \u2019s Act DATE ) .","On DATE the applicants commenced proceedings against , inter alios , the Commissioner of Police of the LOC alleging negligence in that although the police were aware of PERSON - Lewis\u2019 activities since DATE they failed to apprehend or interview him , search his home or charge him with an offence before DATE . Orders for discovery of documents were made on DATE .","On DATE the ORG Commissioner issued an application to strike out the statement of claim on the ground that it disclosed no reasonable cause of action . ORG judge dismissed the application .","On DATE ORG upheld the appeal by the Commissioner ( PERSON and another v. PERSON and another [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) . In its judgment , the court held that in light of previous authorities no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required an immunity from suit .","Lord Justice GPE found , inter alia :","\u201c In my judgment the plaintiffs [ the applicants ] have therefore an arguable cause that as between [ the second applicant ] and his family , on the one hand and the investigating officers , on the other , there existed a very close degree of proximity amounting to a special relationship . \u201d","However , having regard to the judgment of ORG in the case of PERSON v. Chief Constable of GPE ( see paragraphs CARDINAL\u2013CARDINAL below ) , from which he found no relevant distinction , he considered that the matters in issue were failures in investigation of crime and thus public policy doomed the action to failure . He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply . He found that Lord PERSON in the LOC case had treated public policy as a separate point that is not reached unless there is a duty of care .","The second judge in ORG , Lord Justice PERSON , also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts , if proved , were sufficient to establish a relationship sufficiently proximate to found a duty of care . Lord Justice PERSON agreed with the judgment of Lord Justice PERSON . The applicants\u2019 claim was accordingly struck out .","ORG refused leave to appeal to ORG and the application to ORG for leave to appeal was refused on DATE .","The domestic courts had not established the full facts of the case since ORG pleaded guilty to the charges against him and a full inquest was not conducted into the death of PERSON ( see paragraph CARDINAL above ) . Furthermore , the applicants\u2019 civil action against the police was struck out as showing no reasonable cause of action ( see paragraph CARDINAL above ) . Having examined the submissions and materials of the parties especially as regards the facts in dispute the Commission proceeded to the establishment of the facts of the case . Its findings may be summarised as follows .","DATE . As to the CARDINAL meetings which took place between the police and the school DATE and DATE ( see paragraph CARDINAL above ) , the Commission was satisfied that the police were made aware of the substance of the events and of the school \u2019s concerns about the disturbing attachment which ORG was showing towards PERSON as well as PERSON - Lewis\u2019 worrying reaction towards PERSON .","Furthermore , Mr Prince had in all probability informed ORG PERSON and PERSON on DATE ( see paragraph CARDINAL above ) about the graffiti incident , the theft of the school files and PERSON - Lewis\u2019 change of name , even if both officers had no recollection of having been told CARDINAL matters . Like the meetings between PC PERSON and PERSON , no police notes appear to have been taken . However , the Commission did not find it established that at this stage the police had made any commitment to searching PERSON - Lewis\u2019 home or were seriously concerned about the possibility of ORG kidnapping PERSON . These hypotheses emerge from the memoranda drawn up by ORG officers around this time ( see paragraph CARDINAL above ) and were probably based on the contacts which the officers had with Mr Prince and not on any direct contact between the officers and the police .","While all the vandalism on the Osmans\u2019 home and property DATE had been reported to the police and the family had informed the police of its concern that ORG was behind the attacks , the only step taken during that period was to invite ORG to the police station for an interview ( see paragraph CARDINAL above ) . In the Commission \u2019s opinion , little reliance could be placed on PERSON - Lewis\u2019 later assertions that he told PC PERSON during the interview that he was in danger of doing something criminally insane . No police notes or records of this meeting which took place on an unspecified date could be traced .","Following the alleged ramming incident ( see paragraph CARDINAL above ) , the police immediately interviewed the NORP and the NORP and photographed the graffiti at the school ( see paragraphs CARDINAL and CARDINAL above ) . Although Detective PERSON in his undated report ( see paragraph CARDINAL above ) had stated that there was no evidence that ORG was responsible for the graffiti and the attacks on the Osmans\u2019 home the police had nevertheless taken the view that he was presenting a sufficient threat that formal steps should be taken against him . Thus the decision was taken on CARDINAL DATE to arrest ORG on suspicion of criminal damage .","The ORG was also satisfied that there was no evidence that ORG had made any direct or indirect threats against the NORP during his meeting with ORG officers on CARDINAL DATE ( see paragraph CARDINAL above ) . It placed greater weight on the contemporaneous notes of the meeting rather than on the statement of CARDINAL of the officers taken DATE that ORG threatened at the meeting to commit a \u201c PERSON massacre \u201d . According to the notes of the meeting , ORG is reported as having stated that he would not do a \u201c PERSON \u201d at the school but would see the deputy at home . In the ORG \u2019s view , this would explain why the police requested that a casual watch should be kept on Mr ORG address . Furthermore , despite the wording of the ORG memorandum of CARDINAL DATE and of Mr Prince \u2019s rather cryptic diary entry on CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) it seemed unlikely PERSON that the police had referred to or promised police protection to the PERSON family especially since none was in fact envisaged or provided . The school authorities had probably received this impression from the assurances given by the police that the necessary measures were being taken to deal with the situation including the vague threats made against Mr PERSON .","The Commission did not find it established that the letter sent by the ORG to ORG at the request of the police following the failed arrest attempt on CARDINAL DATE caused ORG to disappear ( see paragraph CARDINAL above ) . It was also satisfied that the police took no further active steps to trace the whereabouts of ORG from DATE apart from placing his name on ORG in DATE . In addition , there were no contemporaneous records to support the assertion that ORG had informed the police about ORG being seen by her son around the PERSON home in DATE ( see paragraph CARDINAL above ) . It may have been the case that PERSON Green merely left a message with the police station that ORG should ring her back . In that event , it was not surprising that ORG had not been able to make a connection between a PERSON and the ORG file since the case had been dormant for DATE .","The offence of murder is committed if a person of sound mind unlawfully kills any human being with malice aforethought . The mental element of murder , \u201c malice aforethought \u201d , is established if it is proved that there was , on the part of the accused , an intention to kill , an intention to cause grievous bodily harm or an intention to do an act knowing it to be highly probable that the act will cause death or grievous bodily harm . The sentence for murder is life imprisonment .","The offence of manslaughter is committed if the victim is unlawfully killed by a person who , by reason of abnormality of mind , suffered from diminished responsibility \u2013 i.e. who suffered from such abnormality of mind as substantially impaired his mental responsibility for his acts . The sentence of manslaughter is imprisonment for life or for any shorter term .","The power to obtain a warrant to search for items that have been used , or are intended for use , in committing criminal damage is governed by section CARDINAL ) of LAW DATE which provides :","\u201c If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse \u2013","( a ) to destroy or damage property belonging to another ; or","( b ) to destroy or damage any property in a way likely to endanger the life of another ,","the Justice of the ORG may grant a warrant authorising any constable to search for and seize that thing . \u201d","NORP In order for an arrest to be lawful it must first satisfy either section CARDINAL or CARDINAL of the Police and Criminal Evidence Act DATE ( \u201c the DATE LAW ) .","DATE . Under section CARDINAL a police officer may arrest any person whom he has reasonable grounds to believe is guilty of an arrestable offence . All offences which carry a maximum sentence of CARDINAL years\u2019 imprisonment or more are considered arrestable offences ( section CARDINAL ) ) .","Under LAW a police officer may arrest without warrant any person whom he has reasonable grounds to suspect is guilty of a non - arrestable offence provided that CARDINAL of the general interest conditions apply . These include :","( a ) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as a name is in fact his real name ( section CARDINAL(CARDINAL)(a ) ) ;","( b ) that the constable has reasonable grounds to believe that an arrest is necessary to prevent the relevant person causing physical injury to any person or causing loss or damage to property ( section CARDINAL(CARDINAL)(d)(i ) and ( ii ) ) ;","( c ) that the constable has reasonable grounds to believe that an arrest is necessary to protect a child or other vulnerable person from the relevant person ( section GPE ) ) .","In determining whether the available information is sufficient to give rise to a reasonable suspicion , the test to be applied is that laid down by ORG in PERSON v. PERSON [ DATE ] Appeal Cases at p. CARDINAL :","\u201c Suspicion in its ordinary meaning is a state of conjuncture or surmise where proof is lacking : \u2018 I suspect but I can not ORG . Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end . \u201d","Where a person is arrested for an offence without a warrant , or under a warrant not endorsed for bail , the custody officer at the police station where he is detained after his arrest must determine whether he has sufficient evidence to charge the person for the offence for which he has been arrested ( section ORG ) of the CARDINAL Act ) . In reaching this decision the custody officer must have \u201c reasonable and probable \u201d cause to prosecute . In PERSON v. PERSON [ DATE ] CARDINAL Queen \u2019s Bench Division at p. CARDINAL , Judge Hawkins interpreted this requirement to mean :","\u201c \u2026 an honest belief in the guilt of the accused based upon a full conviction , founded upon reasonable grounds , of the existence of a state of circumstances , which , assuming them to be true , would reasonably lead any ordinary prudent and cautious man , placed in the position of the accuser to the conclusion that the person was probably guilty of the crime imputed . \u201d","NORP The custody officer is not required to be sure that the accused person is guilty before charging him ( Tempest v. PERSON [ DATE ] CARDINAL ORG Bench Reports at p. CARDINAL ) . Nor is it necessary for a charging officer to believe that the prosecution will result in a conviction ( PERSON v. PERSON [ DATE ] CARDINAL Weekly Reporter at p. CARDINAL ) . The charging officer is simply required to make an assessment of whether there is sufficient evidence to withstand examination in the course of \u201c a fair and impartial trial \u201d ( PERSON v. McIver [ DATE ] Appeal Cases at p. CARDINAL ) .","If the custody officer does not have sufficient evidence to charge , the arrested person must be released either on bail or without bail . However , if the custody officer has reasonable grounds to believe that the suspect \u2019s detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him , the custody officer may authorise the suspect \u2019s further detention ( section CARDINAL ) of the CARDINAL Act ) .","In determining whether to bring criminal charges against a person , the custody officer may take into account evidence disclosing a pattern of ORG offending . However , in ORG v. P. [ DATE ] CARDINAL Appeal Cases at p. CARDINAL ORG stated that admissibility of such evidence is to be determined by the degree of its probative worth . The Lord Chancellor , Lord ORG , said :","\u201c \u2026 the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime \u2026 Once the principle is recognised that what has to be assessed is the probative force of the evidence in question , the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved . Whether the evidence has sufficient probative weight to outweigh its prejudicial effect must in each case be a question of fact and degree . \u201d ( at p. CARDINAL )","He continued :","\u201c Where the identity of the perpetrator is in issue , and evidence of this kind is important in that connection , obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary . To transpose this requirement to other situations where the question is whether a crime has been committed , rather than who did commit it , is to impose an unnecessary and improper restriction upon the application of the principle . \u201d ( at p. CARDINAL )","Section CARDINAL of the DATE Act provides that where an arrested person is charged with an offence , the custody officer shall order his release from police detention , either on bail or without bail , unless , inter alia , his name or address can not be ascertained ; detention is necessary for the person \u2019s own protection or to prevent him causing physical injury to any other person or damage to property ; or the person arrested will fail to appear in court to answer bail .","If the custody officer decides not to release the defendant , he must be produced before a ORG within TIME after his arrest who shall either commit him in custody or release him on bail . Pursuant to section QUANTITY of Schedule CARDINAL Part CARDINAL to LAW DATE :","\u201c The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant , if released on bail ( whether subject to conditions or not ) would \u2013","( a ) fail to surrender to custody , or","( b ) commit an offence while on bail , or","( c ) interfere with witnesses or otherwise obstruct the course of justice , either in relation to himself or any other person . \u201d","In taking this decision ORG is required , pursuant to section CARDINAL of Schedule CARDINAL Part CARDINAL , to have regard to such of the following considerations as appear to it to be relevant , namely :","\u201c ( a ) the nature and seriousness of the offence \u2026 ;","( b ) the character , antecedents , associations and community ties of the defendant ;","( c ) the defendant \u2019s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings ;","( d ) except in the case of a defendant whose case is adjourned for inquiries or a report , the strength of the evidence of his having committed the offence or having defaulted . \u201d","Section CARDINAL of LAW DATE provides :","\u201c ( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person , or for the protection of other persons , remove that person to a place of safety \u2026","( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . \u201d","Both ORG and ORG have the power to remand an accused person to a specified hospital for the preparation of a report on his mental condition . Section CARDINAL(CARDINAL ) defines an accused person as follows :","\u201c ( a ) in relation to ORG , any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned ;","( b ) in relation to a ORG any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section . \u201d","If these requirements are met the court may , pursuant to section CARDINAL(CARDINAL ) , remand the accused person to a hospital for a report if :","\u201c ( a ) the court is satisfied on the written or oral evidence of a registered medical practitioner , that there is reason to suspect that the accused person is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment ; and","( b ) the court is of the opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail \u2026 \u201d","ORG may remand an accused person to a specified hospital for treatment , if it is satisfied on the evidence of CARDINAL medical practitioners that he is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be so detained ( section CARDINAL ) ) .","Following conviction for an offence punishable with imprisonment , both ORG and ORG have the power under section ORG ) to make an interim hospital order , where :","\u201c \u2026 the court before or by which he is convicted is satisfied , on the written or oral evidence of CARDINAL registered medical practitioners","( a ) that the offender is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment ; and","( b ) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case \u2026 \u201d","Pursuant to section CARDINAL ) both ORG and ORG may also admit an offender to a hospital if :","\u201c ( a ) NORP the court is satisfied , on the written or oral evidence of CARDINAL registered medical practitioners , that the offender is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment and that \u2026","( i ) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and , in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration of his condition \u2026","( b ) the court is of the opinion , having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of an order under this section . \u201d","In the case of ORG v. ORG ( [ DATE ] Appeal Cases at p. CARDINAL ) , the owners of a yacht damaged by borstal boys who had escaped from the supervision of prison officers sought to sue ORG alleging negligence by the prison officers . ORG held that in the particular case a duty of care could arise . Lord PERSON said :","\u201c I should therefore hold that any duty of a borstal officer to use reasonable care to prevent a borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and capture . \u201d","In the case of PERSON v. Chief Constable of GPE ( [ DATE ] Appeal Cases at p. CARDINAL ) , the mother of a victim of the PERSON instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members of the public who might be his victims . Lord PERSON in ORG found :","While he considered this sufficient to dispose of the appeal , Lord PERSON went on to set out public - policy objections to the existence of an action in negligence against the police in the performance of their duties in the investigation and suppression of crime .","\u201c Potential existence of such liability may in many instances be in the general public interest , as tending towards the observance of a higher standard of care in the carrying on of various different types of activity . I do not , however , consider that this can be said of police activities . The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime . From time to time they make mistakes in the exercise of that function , but it is not to be doubted that they apply their best endeavours to the performance of it . In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind . The possibility of this happening in relation to the investigative operations of the police can not be excluded . Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had ORG failed to catch some criminal as soon as they might have done , with the result that he went on to commit further crimes . While some such actions might involve allegations of a simple and straightforward type of failure DATE for example that a police officer negligently tripped and fell while pursuing a burglar \u2013 others would be likely to enter deeply into the general nature of a police investigation , as indeed the present action would seek to do . The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion , for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources . Many such decisions would not be regarded by the courts as appropriate to be called in question , yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so . A great deal of police time , trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial . The result would be significant diversion of police manpower and attention from their most important function , that of the suppression of crime . Closed investigations would require to be reopened and retraversed , not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted . \u201d","Lord PERSON commented :","\u201c ... if this action lies , every citizen will be able to require the court to investigate the performance of every policeman . If the policeman concentrates on CARDINAL crime , he may be accused of neglecting others . If the policeman does not arrest on suspicion a suspect with previous convictions , the police force may be held liable for subsequent crimes . The threat of litigation against a police force would not make a policeman more efficient . The necessity for defending proceedings , successfully or unsuccessfully , would distract the policeman from his duties .","This action is misconceived and will do more harm than good . \u201d","In Swinney and another v. the Chief Constable of GPE ( [ DATE ] Queen \u2019s Bench Reports at p. CARDINAL ) , the plaintiff had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer , expressing her concern that she did not want the source of the information to be traced back to her . The information was recorded , naming the plaintiff , in a document which was left in an unattended police vehicle , which was broken into with the result that the document was stolen , came into the possession of the person implicated and the plaintiff was threatened with violence and arson and suffered psychiatric damage . The plaintiff \u2019s claim in negligence against the police was struck out but allowed on appeal by ORG judge . The Chief Constable appealed contending that the police owed no duty of care or alternatively that public policy precluded the prosecution of the claim since the police were immune for claims arising out of their activities in the investigation or suppression of crime . ORG dismissed the appeal .","In his judgment Lord Justice PERSON referring to the cases of ORG and PERSON ( see paragraphs CARDINAL\u2013CARDINAL above ) stated that he could not accept a claim of blanket immunity for the police in this case , but that there were other considerations of public policy in this case , namely , the need to protect springs of information , to protect informers and to encourage them to come forward . On the facts of the case , it was arguable that the police had assumed a responsibility of confidentiality towards the plaintiff . The case should therefore proceed to trial .","Lord Justice Ward held that it was arguable that :","\u201c There is a special relationship between the plaintiffs and the defendant , which is sufficiently proximate . ORG is shown by the police assuming responsibility , and the plaintiffs relying upon that assumption of responsibility , for preserving the confidentiality of the information which , if it fell into the wrong hands , was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others , greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude .","It is fair , just and reasonable that the law should impose a duty , there being no overwhelming dictate of public policy to exclude the prosecution of this claim . On the one hand there is , as more fully set out in GPE v. the Chief Constable ... an important public interest that the police should carry out their difficult duties to the best of their endeavours without being fettered by , or even influenced by , the spectre of litigation looming over every judgment they make , every discretion they exercise , every act they undertake or omit to perform , in their ceaseless battle to investigate and suppress crime . The greater good rightly outweighs any individual hardship . On the other hand it is incontrovertible that the fight against crime is DATE dependent upon information fed to the police by members of the public , often at real risk of villainous retribution from the criminals and their associates . The public interest will not accept that good citizens should be expected to entrust information to the police without also expecting that they are entrusting their safety to the police . The public interest would be affronted were it to be the law that members of the public should be expected , in the execution of public service , to undertake the risk of harm to themselves without the police , in return , being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected ... \u201d","The police have been held liable in negligence or failure in their duties in other cases . In GPE v. the Chief Constable of GPE ( [ DATE ] CARDINAL Queen \u2019s Bench Reports at p. CARDINAL ) , ORG upheld a finding of liability in negligence under LAW DATE where the police had taken a man into custody , knew he was a suicide risk but did not communicate that information to the prison authorities . The man , diagnosed as suffering from clinical depression had committed suicide in remand prison . The police , which had assumed responsibility for the man , had owed a duty of care , which they had breached with the result that his death had ensued .","In PERSON and another v. Chief Constable of GPE ( [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) , ORG found the police liable to pay damages for negligence in that they had fired a gas canister into the plaintiffs\u2019 premises in order to flush out a dangerous psychopath . There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was firefighting equipment available to put the fire out at an early stage . No equipment had been present at the time and the fire had broken out and spread very quickly . Negligence was also found in GPE v. PERSON and others ( [ DATE ] CARDINAL All England Law Reports at p. CARDINAL ) where a police inspector at the site of an accident failed to close a tunnel and ordered officers to go back through the tunnel in the face of traffic , thereby leading to a further accident .","In NORP v. PERSON ( [ DATE ] CARDINAL Queen \u2019s Bench Reports at p. CARDINAL ) , where a police officer stood by while a man died outside a club in a murderous assault , ORG upheld the conviction of the officer for wilful neglect to perform a duty ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":["2","8"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-57796","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1992,"docname":"CASE OF TOMASI v. FRANCE","importance":2,"conclusion":"Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 5-3;Questions of procedure accepted;Violation of Art. 3;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"C. Russo;N. Valticos","text":["Mr PERSON , a NORP national born in DATE , resides at GPE ( ORG ) . He is both a shopkeeper and a salaried accountant . At the time of his arrest , he was an active member of a NORP political organisation , which put up candidates for the local elections and of which he was the treasurer .","On DATE the police apprehended him in his shop and placed him in police custody until DATE at GPE central police station .","They suspected him of having taken part in an attack at ORG ) in TIME of CARDINAL DATE against the rest centre of ORG , which was unoccupied at that time of DATE . Senior Corporal PERSON and PERSON , who , unarmed , were responsible for maintaining and guarding the centre , had been shot at and wounded , the former fatally and the latter very severely .","The attack had been carried out by a commando of several persons wearing balaclava helmets to conceal their features . The following day the \" ex - FLNC \" ( ORG ) , a movement seeking independence which had been dissolved by decree , had claimed responsibility for the attack and for CARDINAL other bomb attacks which had been perpetrated the same night .","On CARDINAL DATE the Bastia tribunal de grande instance had opened an investigation relating to charges of murder , attempted murder and the carrying of category CARDINAL and category CARDINAL weapons and ammunition . The same day the investigating judge had issued instructions for evidence to be taken on commission ( commission rogatoire ) to ORG ( SRPJ ) of GPE .","On DATE Mr Pancrazi , investigating judge at ORG , charged PERSON and remanded him in custody following the latter \u2019s first appearance before him ; he took the same measures in respect of a certain Mr Pieri . On DATE he questioned PERSON on his alleged involvement in the offences .","He took evidence from witnesses on DATE , DATE and DATE , DATE and DATE , DATE and DATE and DATE .","On DATE he questioned PERSON and on DATE another co - accused , PERSON , who had been held on remand since DATE . He organised confrontations between them on CARDINAL and DATE , and then on DATE .","In addition he issued formal instructions for evidence to be taken on DATE and DATE .","The recapitulatory examination of PERSON and PERSON was conducted on DATE , and that of PERSON on DATE .","On DATE the investigating judge visited the scene of the crime .","The case was transferred to another investigating judge , PERSON , with effect from DATE .","ORG escaped from prison on DATE ; he was recaptured on DATE .","DATE and DATE , Mr PERSON issued several orders for the inclusion of documents in the file and for their transmission to the prosecuting authorities .","On DATE he rejected a request by the applicant for documents to be added to the file .","PERSON submitted CARDINAL applications for release .","The investigating judge rejected them by orders of CARDINAL May , DATE and DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL May and CARDINAL DATE . On DATE he issued instructions that the applicant be interviewed in GPE on the conditions of his detention on remand . That interview took place on DATE .","The applicant challenged the orders of DATE , DATE , DATE and DATE , but the indictments division ( chambre d\u2019accusation ) of ORG upheld them on DATE , CARDINAL DATE , and DATE and DATE .","In its judgment of DATE it stated that it was necessary to continue the detention in order to avoid pressure being brought to bear on the witnesses , to prevent unlawful collusion between the accomplices , to protect public order ( ordre public ) from the prejudice caused by the offence and to ensure that PERSON remained at the disposal of the judicial authorities .","On DATE the ORG public prosecutor applied to the principal public prosecutor of that town for jurisdiction to be transferred on the ground of the climate of intimidation which reigned in the island .","On DATE the principal public prosecutor at ORG referred the matter to ORG ( criminal division ) , which gave its decision on CARDINAL May ; it transferred the case to the GPE investigating judge \" in the interests of the proper administration of justice \" ( Article CARDINAL of LAW ) .","On DATE Mr Nicod , investigating judge at GPE , interviewed PERSON for the first and last time .","He questioned Mr PERSON on DATE and CARDINAL DATE , and PERSON - another co - accused - on DATE . In addition , he organised a confrontation between them on DATE .","On DATE the investigating judge made an order transmitting the documents to the prosecuting authorities .","On DATE the GPE public prosecutor decided to forward the case - file to the principal public prosecutor \u2019s office .","From DATE to mid - April CARDINAL , the investigating judge added various documents to the file . On DATE he made a further order transmitting the case - file to the prosecuting authorities , endorsed by the GPE public prosecutor \u2019s office .","The case - file was forwarded to the principal public prosecutor \u2019s office by a decision dated DATE .","PERSON submitted CARDINAL applications for his release .","The investigating judge dismissed his applications on DATE , DATE , DATE , CARDINAL DATE , DATE and DATE and DATE .","On appeals against various of the investigating judge \u2019s orders , the indictments division of ORG upheld them by decisions of DATE and DATE .","The first such decision referred to the particular gravity of the offences , the existence of \" precise and convincing evidence \" , the risk of pressure being brought to bear and of unlawful collusion and the need to maintain public order and to ensure that the applicant appeared for trial .","The second decision contained the following reasoning :","\" It is plain that the offences of which the appellant is accused are particularly serious ones and profoundly prejudiced public order ; without disregarding the pertinent observations of the accused \u2019s counsel concerning the length of the proceedings , it appears nevertheless that , as the investigating judge decided , PERSON \u2019s continued detention is necessary to protect public order from the prejudice caused by the offences in question and also to avoid pressure being brought to bear or unlawful collusion and to ensure that the accused appears for trial ; \"","The CARDINAL decisions gave rise to appeals on points of law by the applicant , which were dismissed by the criminal division of ORG on DATE and CARDINAL DATE .","The latter decision was based on the following reasons :","\" In the light of the available evidence ORG is satisfied that the indictments division ordered the continuation of the applicant \u2019s detention by a decision which set out the reasons on which it was based with reference to the particular circumstances and which was made under the conditions , and for cases , specified in LAW ; it may also be seen from the grounds of the decision that there is in this case , as is required under LAW para . CARDINAL ( c ) ( article QUANTITY ) of the LAW , ... reasonable suspicion that the accused has committed an offence ; it follows moreover that , having regard to the specific circumstances of the case and the proceedings , the duration of the detention appears reasonable ; \"","On CARDINAL DATE the indictments division of ORG indicted PERSON and PERSON for murder with premeditation , attempted murder with premeditation and carrying category CARDINAL and category CARDINAL weapons , together with the corresponding ammunition ; it committed them - as well as Mr PERSON and PERSON - for trial at the PERSON assize court .","On CARDINAL DATE the criminal division of ORG allowed the appeal lodged by the applicant on DATE on the ground that defence counsel had not been allowed to speak last at the hearing on DATE","It remitted the case to the indictments division of ORG , instructing that court to commit the accused for trial at the PERSON assize court if there were grounds for indicting him ( LAW ) .","On DATE the ORG indictments division committed Mr PERSON for trial at the PERSON assize court .","This decision did not give rise to an appeal on points of law .","On CARDINAL DATE the indictments division of ORG ruled that it lacked jurisdiction to commit the applicant - but not his CARDINAL co - accused - for trial at the specially constituted PERSON assize court , in other words the assize court sitting without a jury . The principal public prosecutor \u2019s office had requested it to apply the provisions of PERSON no . CARDINAL - CARDINAL of DATE , according to which persons accused of acts of terrorism must be tried before such a judicial body .","On CARDINAL DATE the criminal division of ORG dismissed the appeal on this issue filed by the principal public prosecutor at ORG .","On DATE the ORG indictments division allowed an application lodged on CARDINAL DATE by the prosecuting authority and committed the applicant for trial at the specially constituted PERSON assize court . It thereby acknowledged that the offences of which PERSON was accused were \" related to an individual or collective undertaking aimed at seriously prejudicing public order by intimidation or terror \" ( Article CARDINAL - CARDINAL of the Code of Criminal Procedure ) .","On DATE the criminal division of ORG dismissed a further appeal by the applicant .","By a decision of CARDINAL DATE ( see paragraph CARDINAL above ) , the GPE indictments division dismissed an application for release which PERSON had submitted on DATE It gave the following grounds :","\" The detention on remand , which started on DATE , has certainly lasted a very long time . However , the explanation for this lies in the systematic attitude adopted by the accused and the considerable difficulties encountered by the investigating judge . The period of detention , although long , does not in itself constitute a violation of LAW . On the contrary , in this particular case continued detention appears to be essential , given the exceptional gravity of the offences and the fact that PERSON would not hesitate to abscond if he were released . \"","The applicant filed an appeal on points of law , but the criminal division of ORG rejected the submission based on the violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention . On this issue its judgment of CARDINAL DATE stated as follows :","\" In the light of the available evidence ORG is satisfied that the applicant \u2019s continued detention was properly ordered in accordance with the conditions laid down in Article CARDINAL - CARDINAL of the [ Code of Criminal Procedure ] , by a decision setting out specific reasons , having regard to the features of the case as is required under Article CARDINAL of that Code and for cases exhaustively listed in Article CARDINAL ;","In addition the indictments division discussed the complexity and the length of the proceedings , carrying out an unfettered appraisal of the facts , which was sufficient and free of contradictions and from which it concluded that the length of the detention on remand had not exceeded a reasonable time [ ; it follows ] that the submission must fail ... \"","PERSON submitted a new application for release on DATE .","By a decision of CARDINAL DATE ( see paragraph CARDINAL above ) the GPE indictments division found that it lacked jurisdiction as the committal had been decided by the PERSON indictments division .","On DATE the applicant lodged a further application for his release .","On DATE the GPE indictments division dismissed his application on the ground that the committal had been based on precise and detailed reasons , the offences were extremely serious ones and the detention was necessary to protect public order from the prejudice to which they had given rise .","The applicant lodged a further application for release on CARDINAL DATE with the indictments division of ORG , which dismissed it on DATE for the following reasons :","\" A campaign of intimidation against the witnesses , policemen and judges has been waged in the course of the investigation ;","A mere recital ... of the offences which led to PERSON being charged is sufficient , besides the fact that the said offences seriously prejudiced public order , to justify the accused \u2019s continued detention ; there is a grave danger that if he were to be released he would enter into contact with members of the PERSON , who would no doubt be only too pleased to help him evade trial ; it does not appear that his continued detention is , in the circumstances , such as to infringe the provisions of the Convention ... \"","On DATE the applicant once again applied to the GPE indictments division for his release .","On DATE his application was dismissed on account of the extreme gravity of the alleged offences and the need to protect public order from the prejudice created thereby .","He then filed an appeal on points of law , which the criminal division of ORG dismissed on DATE .","On DATE the President of ORG had directed that the session of the assize court was to open on DATE .","On DATE the President decided to postpone the opening of the session until DATE , following an exchange of correspondence in DATE and DATE between the principal public prosecutor \u2019s office and counsel for PERSON and PERSON .","On DATE and DATE he altered the composition of the trial court .","The trial took place from CARDINAL to CARDINAL DATE . On DATE , the applicant was acquitted and immediately released . His CARDINAL co - accused were given suspended sentences of DATE imprisonment for carrying or possession - as the case may be - of a category CARDINAL weapon .","On DATE PERSON lodged a claim with ORG at ORG under LAW . According to this provision , \" ... compensation may be accorded to a person who has been held in detention on remand during proceedings terminated by a decision finding that he has no case to answer ( non - lieu ) or acquitting him , when that decision has become final , where such detention has caused him damage of a clearly exceptional and particularly serious nature \" .","On DATE the principal public prosecutor ( procureur g\u00e9n\u00e9ral ) at ORG made the following submissions to ORG :","\" ...","IN THE MATTER OF THE DETENTION","During his detention , PERSON lodged CARDINAL applications for release , CARDINAL applications to the LOC investigating judge and CARDINAL to the investigating judge and the indictments division in GPE .","CARDINAL judgments confirming decisions were given , CARDINAL by the ORG indictments division and CARDINAL by that of GPE .","Finally , CARDINAL decisions of the criminal division of ORG , of DATE and DATE , dismissed PERSON \u2019s appeals from the CARDINAL decisions of the GPE indictments division .","In their decisions rejecting the applications for release the investigating judges and the indictments division gave their reasons as being the exceptional gravity of the offences , the prejudice caused to public order , the need to ensure that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses .","DISCUSSION","The length of the proceedings",". From DATE , the date on which the investigation was opened , to CARDINAL DATE , PERSON was not yet implicated .",". From DATE , the date on which PERSON was charged , to CARDINAL DATE , the date of his recapitulatory examination , the proceedings progressed at a normal pace and there were no delays .",". From DATE to DATE the proceedings slowed down and consisted of measures which could have been taken previously if the commissions rogatoires or the orders relating to them had been issued earlier .","Thus the result of the commission rogatoire concerning the victim \u2019s spectacles was not communicated until DATE ; it had not been issued until DATE ... , whereas it could have been right at the beginning of the investigation .","Similarly the commission rogatoire giving instructions inter alia for an inquiry into the victims and into the ORG camp and for a study and plans to be made of the LOC was not issued until DATE ...","The evidence obtained under that commission rogatoire was produced only in the course of DATE and DATE , which undeniably prolonged the proceedings .",". The lack of progress in the proceedings DATE and DATE is incomprehensible . Thus DATE elapsed between the order of CARDINAL DATE transmitting the papers to the prosecuting authority and the additional prosecution submissions of DATE calling for a ballistic examination , which had already taken place . Yet it was not until the following DATE , DATE , that the investigating judge gave his order dismissing that request for an expert examination .",". From DATE to DATE , the time taken for the transmission of documents to the indictments division and then ORG and the return of the file to GPE seems normal .",". On the other hand it was not until DATE , DATE after the case had been referred to him , that the GPE investigating judge carried out his first substantive investigative measure by interviewing PERSON , after having dismissed the latter \u2019s applications for release on CARDINAL occasions .","This lapse of time appears excessive in view of the fact that an investigating judge must give priority to a case concerning a person held in detention on remand ; he has a duty to familiarise himself with it and proceed with the investigation as quickly as possible .",". From DATE to CARDINAL DATE the interrogations and confrontations were continued at the rate of CARDINAL investigative measure per month . Interviews held at shorter intervals would have made it possible to reduce the duration of the proceedings significantly .",". From DATE to DATE the time taken to complete the file and transmit it to the assize court appears normal .",". On the other hand , from DATE there was a delay in the proceedings which can under no circumstances be justified by the appeals filed by the accused in pursuance of their statutory rights .",". Finally , it should be noted that the decision in the course of DATE and DATE to renounce holding the DATE session and to replace it by a session fixed for CARDINAL DATE was taken by mutual agreement between the prosecuting authorities and the defence .","In conclusion , in view of the significance and the complexity of the case the investigation was bound to last longer than average . However , it could have been considerably shortened without the various delays noted above .","The necessity of keeping PERSON in detention during the proceedings","Given the nature and the gravity of the offences and the results of the police investigation , PERSON \u2019s detention was at first justified , up until his recapitulatory examination of DATE .","Moreover , until DATE , PERSON had not filed an application for release . However , by DATE the witnesses had already been interviewed and the confrontations carried out .","The measures taken after that date , in particular the commissions rogatoires and the expert examinations , did not concern PERSON directly , except the expert medical examinations ordered following his declarations regarding the conditions of his police custody , which clearly could not justify his continued detention .","It should moreover be stressed that DATE , the date of the recapitulatory record , and DATE , the date on which the assize court session opened , in other words for DATE , PERSON was questioned only once , on DATE , and at his request .","The decisions rejecting his various applications for release were based on the exceptional gravity of the offences , the prejudice caused to public order , the necessity of ensuring that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses .","The gravity , even of an exceptional nature , of offences may constitute a ground for detention only if there is sufficient evidence against the person held .","In this case , charges had been preferred against PERSON , who had always protested his innocence and had been on hunger strike several times , exclusively on the basis of PERSON \u2019s statements , which were far from being as precise as they were claimed to be throughout the proceedings .","In fact , according to various documents from the proceedings , and in particular :","- the report of the public prosecutor to the ORG principal public prosecutor of DATE ... ,","- the memorandum from the SRPJ of GPE of CARDINAL DATE ... ,","- the application by the ORG investigating judge for a transfer of jurisdiction of DATE ... , PERSON stated that PERSON had suggested that he take part in the ` nuit bleue\u2019 ( TIME of terrorist outrages ) of CARDINAL to CARDINAL DATE , and specifically carry out an attack against ORG camp of ORG .","Yet if all PERSON \u2019s statements are read carefully it may be seen that although he did state that PERSON had suggested that he participate in the ` nuit bleue\u2019 , at no time did he mention an attack against the ORG camp ...","Quite the contrary , PERSON always claimed that he had learned of the attack for the first time DATE after the events .","Thus , for example , in the course of his interrogation at his first appearance before the investigating judge ... PERSON stated as follows :","\u2018 I was aware that GPE knew PERSON . The latter had indeed suggested DATE that I should take part in a ` nuit bleue\u2019 . I had refused , but at no time did he say what attack I would have been expected to carry out . As for me , I only heard about the legionaries through the newspapers , on TIME CARDINAL February.\u2019","Furthermore , it should be observed that all the witnesses who confirmed PERSON \u2019s statements merely reported what he had told them . None of them was a direct witness to the events .","In addition , it does not seem that the release of PERSON , who could provide sound guarantees that he would appear for trial and who had no previous convictions , could have represented a risk of pressure being brought to bear on witnesses or on PERSON , a co - accused who was free .","In fact , PERSON , like GPE and PERSON , was not remanded in custody until DATE after the events and GPE , implicated by the same witnesses as PERSON , had escaped from prison on DATE and remained free for DATE until his arrest on DATE , apparently without any pressure being brought to bear on the witnesses .","Finally , it should be noted that on DATE PERSON lodged an application with ORG CARDINAL ( article CARDINAL ) of LAW , making the following complaints :","- excessive duration of his detention on remand ( violation of LAW para . CARDINAL of the Convention ) ( article CARDINAL ) ;","- inhuman and degrading treatment during his police custody ( violation of LAW ) ( article CARDINAL ) ;","- excessive duration of the investigation proceedings opened following a complaint accompanied by a civil claim ( violation of LAW para . CARDINAL of the Convention ) ( article CARDINAL - CARDINAL ) .","This application was the subject of a report by ORG adopted on DATE , in which the ORG declared the application admissible and expressed the opinion by CARDINAL votes to CARDINAL that there had been , in the case under review , a violation of LAW ) of the LAW , by CARDINAL votes to one , that there had been a violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and , unanimously , that there had been a violation of LAW para . CARDINAL ( article CARDINAL ) of the Convention .","IN CONCLUSION","In the light of the various considerations set out above , and the particularly distressing conditions of his detention , PERSON , who spent DATE and DATE in detention and in respect of whom the investigation produced only weak and insufficient evidence , suffered considerable damage on this account .","For all these reasons I call upon the ORG to award appropriate compensation . \"","By a decision of CARDINAL DATE , which contained no statement of the reasons on which it was based , ORG awarded the applicant MONEY .","PERSON was apprehended on DATE at TIME ( see paragraph CARDINAL above ) . He remained in police custody until TIME on DATE , in other words TIME , Judge PERSON having granted the police an extension of TIME at TIME on DATE .","During this period , the applicant :","( a ) had been present at a search of his home on DATE from TIME to TIME ;","( b ) had undergone several interrogations :","- on DATE from TIME to TIME , from TIME and from TIME to TIME , a total of TIME and TIME ;","- on DATE from TIME to TIME , from TIME , from TIME , from TIME to TIME and from TIME to TIME , a total of TIME and TIME ;","- on DATE from TIME to TIME , TIME ;","( c ) had been examined on DATE at TIME by a doctor , who had concluded that his state of health was compatible with the extension of the police custody .","The applicant signed the recapitulatory record drawn up at the end of his police custody , but refused to sign that of his last interrogation .","On DATE , when he first appeared before the investigating judge ( see paragraph CARDINAL above ) , he made the following statement :","\" I note the charges of which you have informed me . I am a declared member of the CCN [ Cunsulta di i cumitati naziunalisti ] . I am not a member of the PERSON . I will make a statement later in the presence of my lawyer , Mr PERSON .","I should like to add , however , that I was struck during my police custody by police - officers ; I do not wish to give their names . I was not allowed any rest . I had to ask the doctor who visited me for something to eat because I was left without food and all I had to eat was one sandwich . TIME , I was left naked in front of an open window for TIME . I was then dressed and beaten up . This went on continuously throughout the police custody . I can show you bruises on my chest and a red patch under my left ear . \"","The judge had the words \" seen , correct \" entered at the end of this statement .","On DATE Mr PERSON laid a complaint against persons unknown together with an application to join the proceedings as a civil party ( constitution de partie civile ) , \" for assault committed by officials in the performance of their duties and abuse of an official position \" .","The following day the senior investigating judge ordered that the applicant lodge a deposit set at MONEY and communicated the file to the public prosecutor \u2019s office .","On DATE Mr Pancrazi , the investigating judge , interviewed as a witness Dr PERSON , Senior Medical Officer at FAC . He stated as follows :","\" I am a medical officer in ORG and I examined PERSON on his arrival at the prison and PERSON , as I do with all the inmates .","...","In F\u00e9lix PERSON \u2019s case , I observed behind the left ear a haematoma which had spread slightly towards the cheek . I noted slight superficial scratches on the chest . In addition , PERSON reported pain in his head and neck , as well as in his legs , arms and back , but , as I have already stated , I was unable to find objective evidence to support these claims .","In both cases the injuries were very slight with no serious features and could not lead to incapacity for work . \"","On DATE the same judge had instructed a Dr Rovere , an expert attached to ORG , to carry out the following tasks :","\" CARDINAL . Effect an examination of the victim \u2019s injuries , illnesses or disabilities , describe them , specify their likely sequelae and give an opinion as to their causes ;","Describe the extent of the incapacity and assess its probable duration . \"","The doctor , who had examined PERSON on DATE at TIME in the prison , in the presence of the investigating judge , lodged his report on DATE . The report stated as follows :","\" III . CURRENT CONDITION","( CARDINAL ) Symptoms complained of Mr PERSON complained of . acute otalgia in the left ear . acute parietal and bilateral cephalalgia . slight back pain . pains in the upper abdomen No other symptom was complained of .","( CARDINAL ) Clinical examination","...","( a ) General examination :",". Weight : QUANTITY ; height : CARDINAL ( estimation ) . Blood pressure : CARDINAL . Pulse rate : CARDINAL beats to TIME . Cardiopulmonary examination : normal .","( b ) Cranio - facial segment :","- Two barely visible abrasions , one on the right temple and the other above the right eyebrow - Small horizontal bruise to the upper part of the left eyelid , measuring QUANTITY in length , colour purplish - red - Pains complained of on palpation of the right parietal region of the skull - Conjunctival redness in both eyes ( the patient states that he had this condition before his police custody ) , non- traumatic in origin - Neurological examination : . Pupils equal size , regular and contractile . No nystagmus . PERSON negative . No asymmetry , no dysdiadochokinesis . Tendon reflexes - normal . No deviation in the index finger test and the blind walk test - Left ear : . A dark - red - coloured bruise , warm and allegedly painful on palpation , in the helix and the anthelix . The external auditory meatus and the eardrum show no sign of a traumatic injury .","( c ) Cervical rachis :","- No apparent trace of traumatism . Pressure on the processus spinosis of the cervical vertebrae CCARDINAL and CCARDINAL allegedly painful . Unrestricted neck movement , cracking sounds in articulations could be heard on side movements of the head ( commonplace after DATE ) . No muscular contraction .","( d ) Thorax and abdomen :","- Ecchymotic striae ( vibices ) located as follows : . one at the level of the praesternum . one at the level of the metasternum . CARDINAL others at the level of the epigastric region . one at the level of the right hypochondrium . These marks are red in colour , surrounded by a purplish halo , visible in non - artificial light and allegedly painful on palpation . - No hepatomegaly - No splenomegaly ( enlarged spleen ) - Slight abdominal distension .","( e ) Lumbar region :","- No apparent trace of traumatism . No restriction on scope of trunk movement . No paravertebral muscular contraction .","( f ) Left arm :","On the upper third of the postero - internal face of the arm there is a bruise which is red in colour , with a purplish periphery in its lower part , measuring QUANTITY in length and QUANTITY in width , claimed to be painful on palpation .","Below this bruise , CARDINAL others may be seen , of a circular shape , measuring QUANTITY in diameter , less highly coloured .","IV . DISCUSSION AND CONCLUSION","Mr PERSON has the following symptoms , as observed in the examination of CARDINAL DATE :","- Superficial bruising to the left upper eyelid , the front of the chest , in the epigastric region and that of the right hypochondrium , on the left arm and the left ear","- Two barely visible cutaneous abrasions on the right temple .","The red colouring of the bruises with a peripheral purple halo makes it possible to fix the date of their origin as DATE before the examination on DATE .","The simultaneous presence of abrasions and bruises makes it possible to affirm that these injuries are traumatic in origin ; however , biological tests could be carried out in order to eliminate another medical cause .","Their extent and form offer no indications of how they first occurred ; they are thus consistent with PERSON declarations but could equally have a different traumatic origin .","These injuries entail temporary total incapacity of DATE . \"","DATE . On DATE Judge PERSON interviewed PERSON as an accused . After the expert medical reports concerning the victims of the attack of CARDINAL DATE had been read out to the applicant and his co - accused , the applicant stated :","\" The injuries which were noted during the examinations made firstly by Dr PERSON and then by PERSON and PERSON , were the result of the acts of Superintendent [ NORP ] , his deputy [ A. ] and some of the other officers of the criminal investigation department .","I was beaten for TIME non - stop . I did n\u2019t have a moment \u2019s rest . I was left without food and drink .","A police - officer , whom I would be able to recognise , held a loaded pistol to my temple and to my mouth , to make me talk . I was spat upon in the face several times . I was left undressed for a part of TIME , in an office , with the doors and windows open . It was in DATE .","I spent almost all the time in police custody standing , hands handcuffed behind the back . They knocked my head against the wall , hit me in the stomach using forearm blows and I was slapped and kicked continuously . When I fell to the ground I was kicked or slapped to make me get up .","They also threatened to kill me , Superintendent [ NORP ] and officer [ A. ] told me that if I managed to get off they would kill me . They also said that they would kill my parents . They said that there had been an attack at PERSON where there had been a person injured and that the same thing would happen to my parents , that they would use explosives to kill them .","I would like to say in connection with the injuries to my left ear that , in addition to the bruise noted by PERSON , I bled , to be more precise my ear was bleeding , as I realised when I put a cotton bud in my ear . This lasted for a fortnight . I asked if I could see a specialist and PERSON told me that I had a perforated eardrum . I also realised afterwards that I had a broken tooth . I was therefore not able to tell this to the experts .","PERSON and PERSON stated that the bruise to the left upper eyelid could suggest the shape of spectacles ; but my spectacles are worn on the nose and although they may leave marks on the nose , they can not under any circumstances mark the upper part of the eye . \"","Following the lodging of PERSON complaint and at the request of the public prosecutor , the President of the LOC tribunal de grande instance appointed another investigating judge , PERSON N\u2019Guyen , on DATE .","Without waiting for the outcome of the application for an order designating the competent court ( see paragraph CARDINAL below ) , PERSON N\u2019Guyen had already appointed CARDINAL experts of ORG , PERSON and PERSON , who had examined the applicant on DATE at the prison and submitted their report on DATE . This document was worded as follows :","\" SUMMARY OF THE FACTS :","The patient states as follows :","` On DATE I was beaten up for a period of TIME . I was repeatedly punched and kicked mainly in the abdomen , on the head and on the face.\u2019","SYMPTOMS COMPLAINED OF AT THIS TIME :","The patient complains of the following symptoms : - pain in the left ear ; - buzzing in the ears ; - headache ; - pain in the lumbar region ; - abdominal pain ; - [ illegible ] .","CLINICAL EXAMINATION CARRIED OUT ON DATE \u2019S DATE","- Weight : QUANTITY : CARDINAL - Blood pressure : CARDINAL - Pulse : CARDINAL beats a minute .","Examination of the face and the skull :","PERSON wears corrective lenses for myopia .","On examining him we noted the following :","- a slight bruising of the upper left eyelid , purplish in colour , QUANTITY in length ; - minor abrasions QUANTITY in diameter : CARDINAL - at the level of the right temple , CARDINAL - above the right eyebrow .","On continuing the examination of the face we observed :","- the area of the masticatory muscles was particularly sensitive on palpation , especially on the right ; - elsewhere , the ocular autokinesis was normal ; - the examination of the surface sensitivity of the face was normal ;","- facial motility was normal .","Further examination revealed :","- pronounced , diffuse erythema in the auricle of the left ear ; - auditory capacity appeared normal , tested by the ticking of a watch and whispering .","ORG - abdominal examination :","Examination showed :","- a number of cutaneous abrasions QUANTITY in diameter , located in the area of the right hypochondrium , the epigastrium , the right lower thoracic region and the left parasternal region , close to the metasternum ; - otherwise , pulmonary auscultation , palpation and percussion of thorax normal ; - likewise examination of the abdomen revealed a supple stomach , no pain ; - examination of the external genital organs showed no bruising , no haematoma , no scar , no trace of traumatism .","Examination of the upper members :","- On the left arm , postero - internal face , at the middle part of the arm , a bruise QUANTITY in length , QUANTITY in width , oval- shaped .","This bruise was a yellowish colour in the middle and greenish at the periphery .","- There were in addition CARDINAL small bruises near to the first bruise , of a circular shape , CARDINAL in diameter , also of a greenish colour .","Examination of the lower members :","Examination entirely normal .","Neurological examination :","- PERSON test : negative - No deviation of index finger - Muscular strength [ illegible ] intact - Tendon reflexes present and symmetrical - Sensitivity : normal - Co - ordination : normal .","DISCUSSION AND CONCLUSION","After questioning and carrying out a full clinical examination of Mr PERSON , we noted the following injuries :","- CARDINAL bruises , a small one on the left eyelid and a larger one on the left arm ;","- in addition , there were abrasions spread out over the thoracic and parasternal region and on the left temple and right eyebrow . These abrasions were of minimal size .","The pains and buzzing in the ear require an opinion from an ear , nose and throat specialist .","The colouring of the bruises makes it possible to fix the date of the originating traumatism at DATE previously .","The bruise on the left arm could be the result of strong manual and digital pressure . The bruise to the left upper eyelid might suggest the shape of the upper frame of the spectacles worn by PERSON .","The cutaneous abrasions noted do not indicate a specific traumatic origin .","We did not find any scar , any burn mark , or any other injury capable of suggesting that acts of torture had been committed . \"","On DATE , at the investigating judge \u2019s request , the CARDINAL doctors filed a further expert opinion . In this they concluded : \" Mr PERSON qualifies for temporary total incapacity of DATE \" .","On DATE Judge N\u2019Guyen interviewed the applicant in his capacity as a civil party in criminal proceedings . PERSON made the following statement :","\" - ... I think that we arrived at the police station at TIME . They began to question me and typed the first record . I said that I was an active member of the ORG . They asked me if I knew why I was there . I replied that it was not the first time that they had detained members of the ORG .","- It was at that moment that they began to hit me ; Superintendent [ NORP ] slapped me repeatedly . Each time he came into the office he egged his men on . He said that they had to make me talk and that they had to use every means of doing so .","He hit me throughout DATE of police custody .","- His deputy [ A. ] also hit me . He used forearm blows to the stomach , saying that that left no mark . He pulled me by the hair and knocked my head against the wall .","There were others there but I do n\u2019t know their names : there was a small , dark - haired man , who I think was called [ G. ] . He slapped me and punched me .","I can also give you the name of [ L. ] because he told me his name .","There were others too , but I can not name them .","These men hit me continuously except when I was speaking . As soon as I stopped speaking they hit me .","- I \u2019d like to make clear that I had my hands handcuffed behind my back and I had to remain standing QUANTITY from the wall . That started at the beginning of the police custody . The body search was not carried out on the ground floor but on the second floor .","- I remember that there was also a man who was with [ A. ] , of the same height , balding . He too hit me throughout the police custody . He took my head and knocked it against the wall .","- I had no rest the first night or the second .","- I was questioned by CARDINAL police - officers who took it in turns . Sometimes they were CARDINAL ; often they were between ten and DATE . I spent TIME in the same office .","- I was taken down again on DATE around TIME . Until then I had no rest , I had neither eaten nor had anything to drink .","- The first evening I asked for food and drink . The policemen gave me nothing . The following day , as I had asked to see a doctor , he came . I told him that I had been beaten continuously for CARDINAL , that I had not eaten or drunk and that I was being dealt with by torturers . I made him note the marks of the blows to my stomach and face . He did not reply . He took my blood pressure . He told the policemen that I could stand up to it . Indeed I have written to the medical association on this point . When I told him that I had had nothing to eat , he looked at the policemen .","The policemen looked embarrassed and asked me what I wanted . I said that I would like a cup of coffee and a sandwich . They refused to give me the coffee and told me that I would have it if I talked . The sandwich was thrown into the dustbin . It was not until TIME that the municipal police - officers ( l\u2019Urbaine ) gave me CARDINAL coffees with croissants and chocolate rolls . That is why when I arrived at the court house I was in a very agitated state .","- I should also like to say that police - officer [ L. ] took his pistol out of his belt ; it was loaded , and held it to my temple and my mouth . He told me to talk . I replied that I could n\u2019t make things up . He read me the records of the interrogations of the others . He told me that I should say the same thing .","- After that , [ PERSON ] spat at me CARDINAL times in the face and slapped me .","- The torturer [ NORP ] often came into the office and asked several times ` you have n\u2019t undressed him yet?\u2019","- At nightfall they took me into another office . It was still on the second floor but could n\u2019t be seen into from outside . There I was completely stripped . This happened during TIME . I was completely naked , in my socks . [ D. ] arrived ; he asked me why they had n\u2019t taken off my socks . He slapped me and continued to question me like that with the doors and windows open . It was a cold DATE TIME . I repeat that in the room where I had been put I could n\u2019t be seen from the outside . In the other room , they were careful to lower the metal blind when they turned the light on .","- At one moment I was allowed to sit down . That is when [ B. ] arrived . He took me by the shirt or jacket and pushed me . He had the handcuffs with which my hands were bound behind my back taken off and made me sit down . He told all the police - officers and the superintendent to leave . He asked me if I wanted anything . I told him that I would like to go to the lavatory and wash myself . He let me go ; he then spoke to me for TIME . We spoke together as we are speaking DATE .","- That happened on the CARDINALth at QUANTITY in the evening . [ B. ] left . They put back the handcuffs and continued to hit me .","- I should also say that my arms and legs were numb . I was sometimes hit so much that I fell to the ground . The policemen made me get up by kicking me and hitting my head against the wall .","- There were also threats to my family . They threatened to blow up the flat where my parents live . They told me about a woman from ORG who had been blown up and who had been injured and said that they would do the same thing to my parents to kill them . They also told me that they would kill the families of my brother and my sister .","- Police - officer [ L. ] told me that he would make me close the shop . That it would be NORP people who would buy it . He told me that he would make all the NORP leave . He told me that he would also blow up the shop .","- They made threats against me too . The torturers threatened to kill me . They told me that they would take me to the ORG camp at ORG and that they would leave me to the legionaries .","Many other things happened but in TIME it is impossible to recount everything that happened TIME .","[ A. ] called me a left - winger . He said that he was sure that I had voted for PERSON and that this was the result . They also said that they were CARDINAL police- officers who were reliable and that I had better not lay a complaint . They told me that it was n\u2019t the same for the municipal police - officers because there were sympathisers among them and they were n\u2019t sure of them .","I would like to say that if I am released , because I am innocent , if something happens to me , it wo n\u2019t be necessary to look any farther . They told me that if I were freed , they would deal with me . \"","By a letter of CARDINAL DATE the applicant \u2019s lawyer requested the investigating judge to organise a confrontation between his client and the officers who had taken part in the interrogations ; he also suggested that the judge should take evidence from the QUANTITY persons who had been held in custody at the same time because \" they could have heard or seen some of the ill - treatment inflicted at GPE police station \" , as well as PERSON \" who was asked to examine PERSON , who had complained of having problems with his ears \" . In addition , he asked that the record of the applicant \u2019s first appearance before Judge PERSON be included in the case - file .","The participants in the proceedings did not supply either the ORG or the ORG with information regarding any investigative measures which may have been taken DATE and DATE .","On DATE the ORG public prosecutor submitted an application to the criminal division of ORG requesting that the \" court responsible for the investigation or trial of the case \" be designated . He was acting pursuant to LAW , which concerns cases in which \" an officer of the police investigation department is liable to be charged with a criminal offence , allegedly committed in the area in which he performs his duties , whether or not in the performance of those duties \" .","On DATE ORG rejected the application , because it did not specify either the names or the position of the persons who were liable to be prosecuted as a result of PERSON complaint .","On DATE the ORG public prosecutor again applied to the criminal division , seeking the designation of the competent court .","On DATE ORG gave its decision . It declared void the investigative measures carried out after DATE , the date on which the applicant as the civil party in criminal proceedings had identified the persons whom he accused .","In addition , it instructed the GPE investigating judge to conduct the investigation into the applicant \u2019s complaint .","On DATE the GPE public prosecutor lodged an application for the opening of an investigation and the President of the GPE tribunal de grande instance appointed an investigating judge , PERSON .","The latter interviewed PERSON on CARDINAL occasion , on DATE .","On DATE he added to the file the certified copies of several documents from the file opened in GPE , in particular the records of the police custody and of the first appearance before the investigating judge as well as the expert medical reports .","By a letter addressed to the judge on DATE , the applicant requested a confrontation with the police - officers who had interrogated him .","On DATE and CARDINAL DATE the investigating judge interviewed as witnesses persons who had been held in police custody on the same LOC and at the same time as the applicant . Mr PERSON stated that he had seen the applicant on DATE at FAC and had noted that he had marks on his abdomen and that an ear was running .","PERSON was appointed to a new post and the President of the GPE tribunal de grande instance replaced him on DATE by another judge , PERSON .","On CARDINAL DATE the latter issued a commission rogatoire to the Director of ORG of the National Police instructing it to undertake a thorough investigation .","CARDINAL police - officers who had taken part in the arrests , searches and interrogations were interviewed CARDINAL DATE . None of them admitted having assaulted the persons held in police custody and none of them was confronted with PERSON .","The results of the commission rogatoire reached the court on DATE .","On DATE the investigating judge issued an order finding that there was no case to answer . He cited the same grounds as those set out in the submissions made DATE by the GPE public prosecutor :","\" ... in view of the formal and precise denials by the officers concerned , the accusations made by the complainant , even if they are supported by a few objective medical observations , can not in themselves constitute serious and concurring indications of guilt such as could justify CARDINAL or several persons being charged . \"","By a letter of CARDINAL DATE Mr PERSON appealed from the order finding that there was no case to answer to the indictments division of ORG . He complained among other things that there had been no confrontation with the police - officers and that the sequelae of his police custody had not been taken into account , in particular the fact that his eardrum had been perforated as was shown by subsequent examinations .","On DATE he wrote to the President requesting that a confrontation be organised .","The indictments division gave its decision on CARDINAL DATE . It allowed the applicant \u2019s appeal and , before ruling on the merits , ordered further inquiries .","On DATE the judge with responsibility for these inquiries issued a commission rogatoire to the Director of ORG of ORG . CARDINAL other police- officers were thus interviewed , as CARDINAL persons - including Mr Filippi - who had been in police custody at the same time as PERSON , and the ear , nose and throat specialist - PERSON who had examined him in DATE .","On DATE Mr PERSON stated that he had seen the applicant on TIME DATE . PERSON face had been \" bruised and swollen \" , his hair had been \" dishevelled \" , he had had \" bruises on the chest , on the abdomen and under his right armpit \" ; he had complained that he had been \" beaten all the time \" and he had \" even taken a tooth out of his pocket \" .","On DATE PERSON made the following statement :","\" ...","I carried out a medical examination of Mr PERSON as an outpatient at ORG . I can not specify the date , but it was in DATE . I treated him for an ear infection and possibly a perforated eardrum . I examined him once or twice , no more than that . I have already told this to the investigating Judge N\u2019Guyen in his chambers . My examination was part of an ordinary consultation and I never issue a medical certificate in those circumstances ; I merely treat the patients who are brought to me .","... \"","On DATE the judge submitted the results of the further inquiries .","On DATE the indictments division upheld the order finding that there was no case to answer , on the following grounds :","\" ...","There is no doubt that PERSON , who was held in police custody at the same time as PERSON , maintained that he had noticed in the hall of the police station that the latter \u2019s face had been ` bruised and swollen\u2019 and that subsequently he had ` personally seen that he had bruises on the chest , abdomen and under the right GPE ;","His co - accused PERSON had for his part stated that PERSON ` had all his chest grazed and that there was liquid running from an ear\u2019 ;","These statements add somewhat to the observations made by the investigating judge himself when PERSON came to his chambers , namely the presence of bruises on his chest and a redness under the left ear , as well as those of the doctors designated at various stages in the proceedings ;","During the police custody , on DATE at TIME , Doctor PERSON examined PERSON , who complained to him that he had been beaten , but he did not personally observe anything at that stage .","When he arrived at the prison , on DATE , PERSON was seen , as part of the systematic check - ups of detainees , by the Senior Medical Officer , PERSON , who noted the presence of a haematoma behind the left ear spreading slightly down towards the cheek and slight superficial scratches on the chest and took note that the applicant reported pain in the head , the neck , the legs , the arms and back , without any objective symptoms .","An expert , Dr PERSON , appointed by the investigating judge , examined PERSON on DATE at TIME and noted that he had superficial bruising on the left upper eyelid , on the front of the chest and in the epigastric region and that of the right hypochondrium , on the left arm and the left ear , as well as CARDINAL cutaneous abrasions , barely visible , on the right temple ; the expert stated that the red colouring of the bruises with a purple peripheral halo made it possible to fix the date of their occurrence as DATE before the examination and stressed that the fact that abrasions and bruises were present simultaneously gave grounds for affirming their traumatic nature but did not indicate the actual cause of the traumatism ; he fixed at DATE the duration of the temporary total incapacity .","The expert report which was entrusted to PERSON and PERSON , in connection with the investigation opened against persons unknown ... [ see paragraph DATE above ] , revealed in the course of the examination carried out on DATE the presence of CARDINAL bruises , CARDINAL a small one on the left eyelid capable of suggesting the shape of the upper frame of the applicant \u2019s spectacles and the other , larger , on the left arm , being possibly the result of very strong manual and digital pressure , as well as abrasions spread out about the thoracic and parasternal regions , on the right temple and the right eyebrow , which did not indicate any specific traumatic cause .","The possibility that the applicant had a perforated eardrum and a bleeding ear was not expressly confirmed by PERSON , an ear , nose and throat specialist , and was expressly denied by PERSON and PERSON .","In any event a comparative study of the various observations made by several doctors and experts shortly after the supposed date of the acts of violence of which PERSON complained showed that there was a real discrepancy between such violence ( punches and kicks ; forearm blows ; head hit against the wall for TIME ) and the slight nature of the traumatisms the origin of which is in dispute and can not be determined .","The officers of the criminal investigation police concerned expressly deny the accusations .","Any confrontation appears at this stage pointless .","There is doubt as to the truth of PERSON \u2019s accusations . \"","On DATE Mr PERSON filed an appeal on points of law which the criminal division of ORG declared inadmissible on DATE on the following grounds :","\" On the basis of the grounds given in the contested judgment ORG is satisfied that , in upholding the order in question , the indictments division , after having analysed the facts contained in the complaint , set out the grounds from which it inferred that there was not sufficient evidence against anyone of having committed the offence of assault by officials in the performance of their duties ;","The appeal submission , in so far as it amounts to contesting the grounds of fact and law relied on by the judges , does not contain any of the complaints which , under LAW [ of LAW ] , a civil party in criminal proceedings is authorised to formulate in support of an appeal on points of law against a decision that there is no case to answer by the indictments division where no such appeal has been filed by the prosecuting authorities . \"","DATE . At PERSON request , PERSON , who was still the Chief Medical Officer at FAC , drew up a certificate on DATE , which he gave to the applicant in person \" for the appropriate legal purposes \" . This document was worded as follows :","\" I , the undersigned , Dr PERSON , ... hereby certify that I examined the X - rays taken of PERSON at ORG on DATE .","The X - rays of the left temple show a thickening of the external auditory meatus with a perforation of the eardrum and the presence of a haematoma behind the eardrum .","The special - angle X - rays ( Hitz ) of the facial structure show , at the level of the bite of the upper left maxillary , the absence of the first molar .","Following these examinations PERSON , the senior consultant in the ear , nose and throat department , prescribed ear drops ( GPE ) and I myself prescribed painkillers and sleeping - pills . \"","In reply to a letter of CARDINAL DATE , the Director of ORG communicated to the applicant the following details :","\" ( a ) The additional investigations carried out have not revealed any new information of a medical nature in addition to that mentioned in my attestation of DATE as regards your visit to ORG as an outpatient in the ear , nose and throat department , probably on DATE .","( b ) At the time of your visit the former ORG did not have a structured system for dealing with outpatient consultations in the specialised departments ; in these circumstances , in the case of mere visits without hospitalisation for an examination by a specialist , a medical record was not systematically drawn up ( PERSON , who at the time was an ear , nose and throat specialist at the hospital , when contacted by my department in connection with your case , was not able to provide any further information which he might have remembered ) .","( c ) In fact it is highly probable that the X - ray or X - rays concerning you were ( as continues to be the practice in respect of detainees who are not hospitalised ) immediately handed over to the persons accompanying you to be given to the medical service of the prison , without a copy being kept at the hospital .","( d ) Moreover - in the unlikely event of medical documents concerning you having been filed - the move to new premises of the former hospital and the opening of a new hospital , in DATE , involved the multiple transportation of a considerable volume of files and documents , which could inevitably have resulted in the files being disturbed .","( e ) The search for documents concerning Mr PERSON and PERSON was likewise fruitless .","In any event I find it hard to see how an action which , as you suggest , might be brought against ORG , either in the form of an application for an interlocutory injunction or on the merits , would make it possible to discover medical documents , whose presence in the archives is , to say the least , highly improbable and which have been the subject of thorough , albeit unsuccessful , searches . \""],"violated_articles":["3","5","6"],"violated_paragraphs":["5-3","6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-78585","languageisocode":"ENG","respondent":"MDA","branch":"CHAMBER","date":2006,"docname":"CASE OF OFERTA PLUS SRL v. MOLDOVA","importance":2,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Just satisfaction reserved","judges":"Nicolas Bratza","text":["The applicant , ORG , is a company incorporated under NORP law .","The background to this case lies in a series of complex contractual arrangements made in DATE concerning importation of electricity from GPE to GPE and involving , in addition to the applicant company , a ORG - owned power distribution company called Moldtranselectro , a NORP ORG - owned power distribution company and a NORP private company . The agreement to which ORG was a party provided , inter alia , that it would pay the NORP private company for the electricity supplied to ORG ( ORG ) and would later be paid back by Moldtranselectro in GPE lei ( MDL ) at the official exchange rate on DATE of payment .","On unspecified dates DATE the applicant company paid over USD CARDINAL,CARDINAL,CARDINAL for the electricity supplied to Moldtranselectro from GPE .","On an unspecified date Moldtranselectro paid the applicant company MDL CARDINAL .","On DATE the Government of GPE adopted Decision no . CARDINAL by which ORG was authorised to issue nominative ORG bonds in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions .","On DATE Moldtranselectro wrote a letter to ORG asking it to issue a nominative ORG bond ( \u201c ORG bond \u201d ) with a value of MDL CARDINAL in favour of ORG .","On DATE ORG issued a ORG bond valued at MDL CARDINAL in favour of the applicant company , payable by DATE . The ORG bond provided that the applicant company had to present it to ORG at least DATE before the date of payment . It also provided that Moldtranselectro had to present , by that date , to ORG , documents proving the supply of electricity to state institutions .","The applicant company presented the ORG bond to ORG DATE before the date of payment . However , the latter refused to pay , on the ground that Moldtranselectro had failed to submit evidence concerning the payment by FAC for the imported electricity .","NORP In DATE the applicant company initiated civil proceedings against both ORG and Moldtranselectro . ORG defended the action on the grounds set out in paragraph CARDINAL above while Moldtranselectro declined all responsibility .","On DATE ORG found in favour of the applicant company and confirmed its right to be paid MDL CARDINAL by ORG , in accordance with the ORG bond . It based its judgment on the finding that ORG had paid for energy supplied to Moldtranselectro from GPE in accordance with the agreement between them and that that energy had been consumed by state institutions . The court considered that the fact that Moldtranselectro had failed to comply with its obligation in the ORG bond was not in itself enough to absolve ORG from its obligation to pay . The court also decided to absolve Moldtranselectro of any responsibility .","Since an appeal by ORG was dismissed on DATE for failure to pay court fees , a warrant for the enforcement of the judgment of DATE was issued to the applicant company in DATE .","On DATE the applicant company officially requested a bailiff to start the enforcement procedure under the warrant .","On DATE ORG requested an extension of the time - limit for lodging an appeal against the judgment of DATE and its request was granted . The appeal was examined on its merits and dismissed by a judgment of ORG of GPE on DATE . ORG lodged an appeal on points of law , reiterating that Moldtranselectro had not complied with its obligation in the ORG bond .","On DATE ORG dismissed the appeal and upheld the judgments of DATE and DATE . It found it undisputed that ORG had paid for electricity supplied from GPE to Moldtranselectro and consumed , inter alia , by state institutions . The failure of Moldtranselectro , which was a ORG company , to fulfil its obligations vis - \u00e0 - vis ORG by presenting it with the documents required by the latter , could not affect the rights of the applicant company , which had paid for electricity supplied from GPE . It noted that the ORG bond did not contain any provision making the payment dependent on the fulfilment of ORG 's obligations towards ORG . The court also noted that the applicant company had on many occasions asked ORG for payment , but that ORG had refused and had asked for the documents which should have been presented by Moldtranselectro . The court considered ORG request to be unlawful and argued that , according to the law , it was Moldtranselectro that should have presented the documents .","In DATE , following a request by ORG , ORG introduced a request for annulment of the final judgment of ORG . On DATE ORG dismissed the request and upheld the judgments favourable to the applicant company . It found , inter alia , that both during the proceedings before the lower courts and before ORG , it had been established that over MDL CARDINAL worth of electricity had been supplied to state institutions . The fact that Moldtranselectro had failed to comply with its obligations to ORG could not have had any influence on the right of the applicant company to be paid .","On DATE the applicant company sold a part of the ORG 's debt , amounting to MDL CARDINAL , to a third company .","Since the judgment of DATE had still not been enforced , on DATE , at the applicant company 's request , ORG agreed to conclude an agreement according to which ORG would pay MDL CARDINAL DATE from DATE in exchange for the applicant 's promise not to initiate further claims for damages .","DATE the Ministry paid MDL CARDINAL to the applicant company .","On an unspecified date the ORG paid MDL CARDINAL to a third company ( see paragraph CARDINAL above ) .","ORG then stopped making the payments , and on DATE the applicant company informed ORG that it had introduced an application with the ORG complaining of the failure to enforce the judgment .","On DATE the Government Agent informed ORG about the applicant company 's application with the ORG and requested it to \u201c take all the necessary steps in order to avoid a finding of a violation against the ORG by the ORG , with the consequent impairment of the country 's image \u201d .","On DATE ORG paid MDL CARDINAL to the applicant company . There were no further payments after that date .","On DATE ORG wrote to ORG , informing it , inter alia , that it considered the judgment in favour of the applicant company to be unlawful , but that it had complied with it partially , so that ORG Plus would not complain to the ORG . ORG had informed it that ORG had already complained to the ORG . The ORG asked ORG for advice .","On DATE ORG wrote to the ORG as follows :","\u201c ... during the proceedings [ between the applicant company , Moldtranselectro and ORG ] the applicant company and Moldtranselectro presented invoices for MDL CARDINAL , of which by DATE only ORG CARDINAL,CARDINAL,CARDINAL had been paid .","No other evidence as to the extent to which ORG had fulfilled its obligations under the agreement [ of DATE ] has been presented . Despite this the courts ruled in its favour .","In that respect ORG has ordered an audit to verify the supply of electricity and the payments between ORG , Moldtranselectro and state institutions . A final decision will be adopted by ORG after the results of the audit become available to it and ORG will be informed accordingly . \u201d","An attempt to carry out this audit was made in DATE by a representative of ORG at the request of ORG . However , it was unsuccessful because , in accordance with book - keeping legislation , the applicant company had destroyed the accounting documents after DATE .","ORG did not wait for a final reply from ORG and on DATE lodged with ORG a request for revision of the judgments in favour of the applicant company . The request referred to LAW ( see paragraph CARDINAL below ) but did not specify any reasons for revision .","On DATE the applicant company submitted to ORG its observations on the revision request , in which it argued , inter alia , that the Ministry had not indicated any reasons for revision , that the revision request was time - barred and if the request were to be upheld this would amount to a breach of the principle of legal certainty .","On DATE ORG upheld the revision request , following a hearing at which ORG was represented by ORG . It quashed the judgments in favour of the applicant company and ordered the reopening of the proceedings . It relied on ORG office 's letter of DATE ( see paragraph CARDINAL above ) , which had been submitted by ORG during the hearing . The Plenary considered the letter to be a new and essential fact or circumstance which was unknown and could not have been known earlier , in accordance with the provisions of LAW . In particular it considered new and essential the submission of ORG that \u201c by DATE only ORG CARDINAL,CARDINAL,CARDINAL had been paid \u201d . ORG did not address in its judgment the objections raised by the applicant company .","On DATE ORG held a hearing in the reopened proceedings . In contrast with the first round of proceedings , Moldtranselectro sided this time with ORG and argued that ORG action should be dismissed because it ( Moldtranselectro ) had already covered the entire debt for the electricity supplied , including MDL CARDINAL provided in the ORG bond , by paying ORG Plus MDL CARDINAL on an unspecified date .","The court upheld the applicant company 's action and ordered ORG to pay it MDL CARDINAL in accordance with the ORG bond . It based its judgment on the fact that the supply of the electricity and the cost of the energy supplied were not disputed by the parties . Referring to the electricity supplied to state institutions , it found that by DATE they had consumed MDL CARDINAL worth of electricity imported from GPE with the participation of FAC .","In the court 's view , the ORG bond constituted an incontestable obligation on ORG towards ORG , which could not depend on the fulfilment of third - party obligations .","Referring to the submissions of Moldtranselectro concerning the payment of MDL CARDINAL to the applicant company , the court argued that that amount represented USD MONEY at the date of supply of the electricity , but not at the date of payment of the MDL CARDINAL . The court held that at the date of payment of the above amount by Moldtranselectro , USD MONEY was worth MDL CARDINAL .","Referring to the amounts indicated by ORG in its letter dated DATE , which served as a basis for the revision of the final judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , the court found that those figures were related to a completely different matter and were irrelevant to the case before it .","ORG appealed against this judgment to ORG .","On DATE ORG upheld the ORG 's appeal and dismissed the applicant company 's action against it . While not contesting the findings of the first - instance court ( see paragraph CARDINAL above ) and while confirming that electricity was supplied to Moldtranselectro and consumed , inter alia , by state institutions , it made its own calculations directly in GPE without converting the amounts to ORG , and came to the conclusion that the entire debt owed by the ORG to the applicant company had been covered by the payment of MDL MONEY by Moldtranselectro to the former . ORG also ordered the applicant company to pay the court fees of MDL CARDINAL .","On DATE ORG lodged with ORG a request for the return of the ORG CARDINAL,CARDINAL,CARDINAL which had been paid in accordance with the judgment of DATE . The applicant company argued , inter alia , that the request had been lodged out of time and that in any event the amount of MDL CARDINAL had never been paid to it , but had instead been paid to a third person ( see paragraphs DATE and CARDINAL above ) .","By a final judgment of CARDINAL DATE ORG upheld the request of ORG . It dismissed the applicant company 's submission concerning the time - limit and ignored its submission concerning the MDL CARDINAL which had been paid to a third person .","On DATE , ORG , having examined the letter from ORG of DATE ( see paragraph CARDINAL above ) initiated criminal proceedings against the applicant company and against the head of Moldtranselectro on charges of large - scale embezzlement of ORG property . ORG referred to the results of the audit which it had attempted to carry out in DATE ( see paragraph CARDINAL above ) and stated , inter alia , that according to the results of that audit , ORG had not paid for electricity supplied to state institutions .","On DATE the Chief Executive Officer of the applicant company ( \u201c PERSON ) was questioned by ORG .","On DATE the offices of the applicant company were searched and some documents seized .","On DATE the criminal proceedings were discontinued . The prosecutor in charge of the criminal case stated in his decision of discontinuation , inter alia , the following :","\u201c According to the evidence obtained during the audit , DATE Moldtranselectro 's debt to ORG reached MDL CARDINAL ...","The materials gathered [ during the investigation ] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied . The transfers [ of MDL CARDINAL by ORG ] to ORG accounts were carried out in accordance with court judgments ...","Taking into consideration the evidence gathered , [ the prosecution concludes ] that the acts of ORG management do not disclose any signs of the offence [ of large - scale embezzlement ] or of other offences . \u201d","On DATE all the bank accounts of the applicant company were frozen by a bailiff to ensure the restitution of MDL CARDINAL . The company had to make all of its employees redundant , except for PERSON","On DATE the ORG communicated the present case to ORG .","On DATE the Deputy Prosecutor General quashed the decision of DATE . He submitted , inter alia , that on DATE Moldtranselectro 's debt to the applicant company for the electricity supplied had been MDL LANGUAGE . He argued that while ORG Plus had paid the NORP partner more than MDL CARDINAL for the electricity supplied to Moldtranselectro , it appeared that the energy for which it had paid had not been supplied exclusively to state institutions . He also noted that ORG Plus had transferred a part of the debt to third companies in exchange for money and goods . He requested , in particular , that an international fact - finding mission be sent to GPE and that the books of the applicant company be seized .","On DATE PERSON was declared a suspect in the criminal proceedings . In a decision of the same date , it was reiterated that on DATE Moldtranselectro 's debt to FAC for the electricity supplied had been MDL CARDINAL . However , the electricity for which Moldtranselectro owed this amount had not been supplied to state institutions .","On DATE a prosecutor issued a decision by which PERSON was officially indicted for misappropriation of MDL CARDINAL and attempted misappropriation of MDL CARDINAL . The charges against him were based on the fact that the energy supplied to Moldtranselectro , for which the applicant company had paid the NORP private company , had not been consumed by state institutions . The prosecution argued that a ORG bond could be issued by ORG only for energy supplied to state institutions . Contrary to that provision , Moldtranselectro had asked ORG on DATE to issue a ORG bond in favour of ORG and such a bond had been issued by ORG on DATE .","After that , Oferta Plus , in the person of GPE , its former chief executive , making use of the favourable environment created for his company by the illegal actions of Moldtranselectro , and seeking to obtain MDL CARDINAL , had initiated civil proceedings against ORG , and in the absence of any proof that electricity had been supplied to state institutions , illegally obtained judgments in its favour .","However PERSON could not fulfil his criminal intention of misappropriating MDL CARDINAL for reasons beyond his control ( he was killed ) .","The criminal intention to misappropriate MDL CARDINAL was continued by PERSON , the present Chief Executive Officer of ORG .","Despite the fact that on DATE Moldtranselectro owed ORG Plus only MDL CARDINAL,CARDINAL.CARDINAL , PERSON had pursued his criminal intention by pressing ORG repeatedly to comply with the judgment of DATE . As a result , on DATE ORG had concluded an agreement with him and later transferred MDL CARDINAL to Oferta Plus .","Later , PERSON transferred the money to the account of a third company , which also belonged to him , from where it was transferred to his wife 's personal account and later withdrawn in cash .","Referring to the reopened proceedings which followed the judgment of ORG of DATE , the prosecutor noted that , despite being well aware that ORG Plus had not paid for energy supplied to state institutions , PERSON had managed to obtain a judgment in favour of ORG Plus before the first - instance court . PERSON had presented evidence which , while showing the payment for electricity , did not prove that the electricity had been supplied to state institutions .","Also , on DATE , according to the applicant company , PERSON was told by the investigating officer , PERSON , that no criminal charges against him would have been brought had he contented himself with MDL CARDINAL .","On the same date PERSON was arrested and a request for him to be remanded in custody for DATE was addressed to ORG .","A detention order for DATE was issued by the investigating judge of ORG on DATE . The judge argued , inter alia , that PERSON had attempted to influence a witness . He relied on a transcript of a telephone conversation of CARDINAL DATE , which , however , was never disclosed to the defence , despite the latter 's requests .","PERSON appealed against the detention order and argued , inter alia , that the criminal proceedings against him had been a form of pressure to persuade PERSON Plus to abandon its application before the ORG . He complained that he and his lawyers had not been allowed to see the transcript of the telephone conversation which was the main reason for his detention and insisted that he had not made any attempt to influence any witnesses .","He also argued that he had become the CEO of ORG Plus only in DATE and thus had not even been involved in the transaction between the applicant company and Moldtranselectro and that in any event the electricity had been supplied to Moldtranselectro , which was a ORG company and held a monopoly on distribution of electricity at that time . The applicant company could not know who were the final consumers of the electricity .","On DATE PERSON 's appeal was dismissed . ORG did not give any assessment of the argument concerning PERSON 's lack of access to the transcript of the telephone conversation .","In the meantime , on DATE , the applicant company 's lawyer in the present case applied to ORG ( \u201c NORP \u201d ) to visit PERSON He pointed out that he was ORG lawyer in the proceedings before the ORG and submitted that he needed to see PERSON in order to prepare with him the observations due on DATE . He asked that the meeting between them take place without a glass partition separating them , since he knew that there was such a partition in the ORG lawyer - client meeting room . He submitted that both he and PERSON had reason to believe that conversations through the glass partition in the ORG meeting room were intercepted and that they were convinced that the criminal proceedings against PERSON had been instituted in order to discourage ORG from pursuing its application before the ORG . He argued that their separation by the glass partition , especially in such conditions , would not allow them to speak freely and would seriously hinder his ability to represent the applicant company before the ORG . The lawyer further argued that PERSON was not a violent person and that there was no risk that he would attack his lawyer . In any event he , the lawyer , would bear responsibility for any attack . He also declared that he would allow the ORG representatives to search him , except for the documents he would be carrying , in order to ensure that he had no forbidden objects on his person .","After repeated requests by telephone , on DATE the lawyer was finally allowed to see PERSON in the ORG lawyer - client meeting room , separated by the glass partition . In these circumstances , PERSON refused to discuss any matters relating to pecuniary damage and asked his lawyer to do likewise because the conversation would have related to the whereabouts of the company 's accounting documents .","During the conversation with PERSON , the lawyer informed him that the charges against him were not consistent with the findings of the civil courts in the civil proceedings between ORG , ORG and Moldtranselectro . DATE , on DATE , the criminal investigator PERSON went to the archives of ORG and took the case file in the civil proceedings . The case file was returned to the archives on DATE .","On DATE , in the afternoon , the applicant 's lawyer telephoned ORG and asked for assistance in seeing PERSON without a glass partition . His request was not successful .","On DATE the lawyer telephoned the investigating officer , and asked him for another meeting with PERSON He repeated his request to see PERSON without the glass partition , but this request was again rejected . He was told that the conditions for meetings between lawyers and clients in the LOC detention centre were not contrary to the law . A meeting between the lawyer and PERSON took place DATE .","On DATE the ORG made public a press release according to which it had discovered , in the context of the criminal investigation against PERSON , an illegal scheme for misappropriation of budgetary funds . A similar item , with images of PERSON , was broadcast on TIME news bulletin of NORP national television .","On DATE , the applicant company 's lawyer wrote to ORG that he was the representative of ORG in the proceedings before the ORG . He submitted that , since his client believed that the criminal proceedings against PERSON and his subsequent detention served the purpose of discouraging the pursuit of the Oferta Plus v. GPE application before the Court , on DATE a formal complaint under LAW had been lodged with the Court . He noted that the main piece of evidence relied upon by the courts in placing PERSON in detention was a transcript of a telephone conversation which allegedly proved his attempt to influence a witness . Since PERSON 's defence had not been presented with a copy of that transcript during the pre - trial detention proceedings , he formally requested a copy of it for the purpose of presenting it to the ORG in support of the LAW complaint .","On DATE Mr PERSON 's request was rejected by ORG on the ground that he was not PERSON 's lawyer in the criminal proceedings against him . The court also noted that in any event the materials of the criminal case file were not usually disclosed to the defence unless the criminal investigator decided otherwise .","On DATE the investigation was completed in the criminal proceedings and the case was sent for examination on its merits to ORG . On DATE , PERSON told the applicant company 's lawyer that he had been told that he would be convicted before ORG adopted a judgment in the present case .","In a letter of CARDINAL DATE , the applicant company 's representative informed the ORG that PERSON had been released from detention on DATE .","The relevant provisions of the old Code of Civil Procedure , concerning enforcement , read as follows :","An enforcement warrant shall be issued to the plaintiff by a court , after the judgment has become final ...","The bailiff shall start the enforcement of a judgment upon the request of [ CARDINAL of the parties to the proceedings ] ...","The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order .","The provisions of the new Code of Civil Procedure concerning the revision of final judgments read as follows :","\u201c Grounds for revision","Revision may be requested :","c ) When new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier ; \u201d","\u201c A revision request may be lodged :","...","c ) within DATE from the date on which the person concerned has come to know essential circumstances or facts of the case which were unknown to him \/ her earlier and which could not have been known to him \/ her earlier .... \u201d","It appears from the photographs submitted by the Government that in the lawyer - client meeting room of the LOC detention centre the space for detainees is separated from the rest of the room by a door and a window . The window appears to be made of CARDINAL plates of glass . Both plates have small holes pierced with a drill ; however the holes do not coincide , so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There appears to be no space for documents to be passed between the lawyer and his client .","The domestic courts have ruled on complaints about lack of confidentiality in the ORG lawyer - client meeting room in the cases of PERSON ( no . CARDINAL\/CARDINAL ) and ORG v. GPE , no . CARDINAL , CARDINAL DATE . On DATE a judge of ORG ordered the ORG authorities to eliminate the glass partition separating lawyers from their clients ; however , the ORG authorities refused to comply with the court order . On DATE the same judge revoked the decision of CARDINAL November CARDINAL , arguing that in the meantime she had been informed by the ORG authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary to ensure the security of the detainees .","On DATE Mr ORG 's lawyer complained again to ORG under LAW that he could not confer with his client under conditions of confidentiality . On DATE the same judge from ORG dismissed the complaint without examining it and referred to her previous decision of DATE .","DATE ORG held a strike , refusing to attend any proceedings regarding persons detained in the LOC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients . The demands of ORG were refused ( see ORG , cited above , \u00a7 CARDINAL ) .","On DATE ORG held a meeting at which the President of ORG and another lawyer informed the participants that they had taken part , together with representatives of ORG , in a committee of inspection of the LOC detention centre . During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices . They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by ORG . The ORG administration had rejected the proposal .","Recommendation Rec ( CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) , in so far as relevant , reads as follows :","CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice . ...","ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential . ...","CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings ."],"violated_articles":["34","6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-112280","languageisocode":"ENG","respondent":"DEU","branch":"CHAMBER","date":2012,"docname":"CASE OF HUMMER v. GERMANY","importance":3,"conclusion":"Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Andr\u00e9 Potocki;Angelika Nu\u00dfberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and lives in GPE . At the time of the events in issue in DATE he was living in GPE , GPE - Palatinate , where he was studying mechanical engineering .","On DATE the applicant \u2019s mother , his brother and his sister ( \u201c the witnesses \u201d ) informed the police about an incident that had occurred during TIME DATE at the applicant \u2019s GPE house in GPE , GPE . The witnesses testified that the applicant , who can not remember the incident , had strangled his sister and had attacked his brother with an axe before being overpowered by his parents . The applicant \u2019s father did not press criminal charges and did not testify against the applicant .","ORG opened a criminal investigation against the applicant for attempted murder . On DATE the witnesses repeated their statements before the investigating judge ( Ermittlungsrichter ) of ORG in the presence of a police officer . The applicant was not informed of the hearing before the investigating judge . No counsel was appointed for him .","On DATE ORG issued a warrant for the applicant \u2019s arrest . The applicant was arrested on DATE and remanded in custody . By a decision of ORG of DATE the applicant was transferred to a psychiatric hospital pending trial .","On DATE ORG ordered that the applicant be placed in a psychiatric hospital pursuant to CARDINAL of LAW ( see \u201c Relevant domestic law and practice \u201d below ) .","ORG found it established that on TIME DATE the applicant travelled from PERSON to his GPE house in GPE . He entered the house with his own key without notifying his parents or his brother and sister of his arrival . During TIME he went to his sister \u2019s bedroom , strangled her and then attacked his brother with an axe causing him injuries on his head , hands , arms and legs . Once the applicant had been overpowered by his parents , the entire family gathered in the kitchen . The sister then drove the applicant \u2019s heavily bleeding brother to hospital where CARDINAL of his wounds were sutured . The applicant stayed with his family in his parent \u2019s house until DATE . During his stay he was provided with medical care by a local doctor who diagnosed him with having suffered an epileptic seizure . The applicant then returned to ORG but made another unannounced visit to his parent \u2019s house on CARDINAL DATE . Following this visit the applicant \u2019s mother , brother and sister who feared a further attack by the applicant decided to inform the police about the incident in TIME DATE and pressed criminal charges against the applicant on DATE ( see above \u00a7 CARDINAL ) .","ORG qualified the acts as CARDINAL counts of assault occasioning grievous bodily harm ( gef\u00e4hrliche GPE ) . It further held on the basis of expert opinions that the applicant had acted either in a state of diminished awareness of his actions due to epilepsy ( epileptischer D\u00e4mmerzustand ) or during a bout of paranoid schizophrenia and could therefore not be held responsible for the acts , pursuant to LAW ( see \u201c Relevant domestic law and practice \u201d below ) .","As regards the finding of facts , ORG noted that the applicant did not have any recollection of the events in TIME DATE and that the only available direct witnesses , namely the applicant \u2019s mother , brother and sister , had availed themselves of their right not to testify against the applicant in court pursuant to section CARDINAL of LAW ( see \u201c Relevant domestic law and practice \u201d below ) . The applicant \u2019s father had refrained from pressing criminal charges and had not participated in the proceedings ( see above LAW ) . The facts could nevertheless be established on the basis of the testimony of the investigating judge , who had heard the witnesses on DATE and had given an account of their pre - trial statements in court . ORG held that it was not prevented from hearing the investigating judge as a witness and taking his testimony about the ORG pre - trial statements into account .","ORG noted that ORG had failed to request the appointment of counsel for the applicant prior to the hearing of the witnesses by the investigating judge in accordance with CARDINAL ( CARDINAL ) no . CARDINAL read in conjunction with LAW as construed by ORG in the light of the requirements of LAW ( d ) of LAW . Furthermore , the unrepresented applicant had not been informed about the hearing before the investigating judge pursuant to section ORG ) ( CARDINAL ) and ( CARDINAL ) of LAW and there would have been no grounds to exclude a potential counsel from the hearing ( see \u201c Relevant domestic law and practice \u201d below ) .","ORG reiterated that under ORG case - law the failure to appoint counsel did not compel the exclusion of the investigating judge \u2019s testimony . However , ORG was bound to proceed to a particularly critical assessment of the investigating judge \u2019s testimony in view of the fact that neither the accused nor counsel had been able to directly examine the witnesses . The finding of facts could only be based on the investigating judge \u2019s testimony if the latter was corroborated by other significant considerations .","ORG took several items of evidence as corroborating the investigating judge \u2019s testimony into account . Firstly , it emphasised that for its establishment of facts it not only disposed of the testimony by the investigating judge but also of CARDINAL consistent witness statements that gave a coherent account of the events in issue . According to the testimony given by the investigating judge , there was nothing to establish that the witnesses had not told the truth or wanted to incriminate the applicant ; the witnesses had testified because they had been concerned about the applicant \u2019s health and had feared another attack by him . Furthermore , the police superintendent who had registered the ORG criminal charge on CARDINAL DATE had testified that on this occasion he had been spontaneously told by the witnesses - prior to their subsequent questioning - that the applicant had attacked members of his family with an axe . ORG pointed out that as opposed to the ORG subsequent testimonies to the police , these spontaneous statements did not have to be excluded from the trial pursuant to section CARDINAL of the Code of Criminal Procedure but constituted admissible evidence . In addition , another policeman had testified that the applicant \u2019s mother had called him spontaneously on DATE and had asked what further action would be taken as a result of the criminal complaint with a view to preventing a renewed unannounced visit and attack by the applicant . In ORG view these spontaneous statements supported the ORG description of the events in TIME DATE .","Moreover , the doctor who had treated the applicant \u2019s brother \u2019s cuts in hospital on DATE had testified that he had been suspicious of the latter \u2019s explanation for his injuries at that time , namely that he had fallen through a glass pane . ORG further noted that the applicant \u2019s brother had later handed over an axe to the police on his own initiative , and that the police officer who had received the implement had testified that the brother had confirmed that the axe was the corpus delicti . Finally , the applicant himself had testified that he could remember seeing his brother covered in blood on TIME DATE when the family had gathered in the kitchen and that his family members had told him that he had attacked his brother and sister during the night . According to the applicant , he himself had proposed that same morning to contact the police but his family had refused to do so . He further remembered that his sister had taken his brother to hospital .","The applicant lodged an appeal on points of law in which he complained that the investigating judge \u2019s testimony ought to have been excluded from the trial .","ORG lodged an appeal on points of law in which he argued that the attack on the witnesses should have been classified as CARDINAL counts of attempted manslaughter as well as assault occasioning grievous bodily harm .","On DATE ORG moved that the applicant \u2019s appeal on points of law be dismissed on the grounds that ORG had , in line with the reasoning in the related ORG leading judgment , established that the investigating judge \u2019s testimony had been corroborated by other important considerations and that ORG holding was free of error .","On DATE ORG dismissed the applicant \u2019s appeal on points of law as ill - founded . On DATE ORG ordered the ORG to pay the costs of ORG Appeal on points of law which had been withdrawn . These decisions were served on the applicant on CARDINAL and DATE respectively .","On DATE the applicant lodged his first application with ORG ( no . PERSON ) which was declared inadmissible for non - exhaustion of domestic remedies by a Committee of CARDINAL judges on DATE .","On DATE the applicant applied for the reinstatement of the proceedings in regard to his compliance with the DATE period to lodge a constitutional complaint and submitted his constitutional complaint to ORG .","On DATE ORG refused to admit the applicant \u2019s constitutional complaint for examination and noted that there was no need to decide the applicant \u2019s application for the reinstatement of the proceedings ( no . CARDINAL BvR CARDINAL\/CARDINAL ) .","ORG may order an accused to be placed in a psychiatric hospital if he has committed an unlawful act in a state that excludes a finding of guilt , and if his act reveals that as a result of his condition , future serious unlawful acts can be expected of him and that he therefore presents a danger to the general public ( section CARDINAL of LAW ) . An accused acts without guilt if he is incapable of appreciating the wrongfulness of his act or of acting in accordance with such appreciation due to a pathological emotional disorder , profound consciousness disorder , mental defect or any other serious emotional abnormality ( section CARDINAL of LAW ) .","Pursuant to section ORG ) ( CARDINAL ) of LAW , the prosecutor , the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings . The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation , in particular if it is to be feared that a witness will not tell the truth in the presence of the accused ( section ORG ) ( CARDINAL ) of LAW ) . The persons entitled to be present shall be given prior notice of the dates set down for the hearings . The notification shall be dispensed with if it would endanger the success of the investigation ( section ORG ) ( CARDINAL ) of LAW ) .","Defence counsel may be appointed during preliminary proceedings ; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory ( section CARDINAL ( CARDINAL ) of LAW ) . The assistance of defence counsel is mandatory if , inter alia , the main hearing is held at first instance before ORG , the accused is charged with a serious criminal offence , or the proceedings are conducted with a view to placement in a psychiatric hospital ( section CARDINAL ( CARDINAL ) CARDINAL . CARDINAL , CARDINAL and CARDINAL of LAW ) . Counsel is to be appointed when an indicted accused without defence counsel has been requested to reply to the bill of indictment ( section CARDINAL ( CARDINAL ) of LAW ) .","In a leading judgment of DATE ( published in the official reports , BGHSt , volume CARDINAL , p. CARDINAL et seq . ) ORG held that LAW ( CARDINAL ) of LAW required , in view of LAW ( d ) of the LAW , the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing . The failure to appoint counsel prior to the hearing before the investigating judge did not exclude the latter \u2019s testimony about the ORG statements as long as the proceedings , seen as a whole , remained fair . To this end the investigating judge \u2019s testimony had to be carefully assessed . A conviction could only be based on the investigating judge \u2019s testimony if this testimony was corroborated by other important considerations .","Parents , brothers and sisters need not testify against their accused son or daughter , brother or sister ( section CARDINAL ( CARDINAL ) no . CARDINAL of LAW ) ; if such a witness makes use of his or her right not to testify at the main hearing , prior witness statements shall not be read out ( section CARDINAL of LAW ) . According to ORG case - law , section CARDINAL of LAW is an exclusionary rule that applies to all statements made prior to a main hearing by witnesses who avail themselves of their right not to testify at the main hearing , with the exceptions of spontaneous statements made by the witness before or outside his or her formal testimony as well as testimonies before a judge after the witness has been advised of his or her right not to testify ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-d"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107753","languageisocode":"ENG","respondent":"SVK","branch":"ADMISSIBILITY","date":2011,"docname":"KOBIDA v. SLOVAKIA","importance":4,"conclusion":"Inadmissible","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . The Government of GPE ( \u201c the Government \u201d ) were represented by their Agent , PERSON .","NORP The facts of the case , as submitted by the parties , may be summarised as follows .","NORP The applicant is handicapped and wheelchair - bound . Since DATE he has been living , at his request and for payment , in an establishment providing social services ( Dom soci\u00e1lnych slu\u017eieb \u2013 \u201c the care home \u201d ) .","DATE , following an agreement with the director of the care home , the applicant himself paid for a person to prepare vegetarian food for him instead of buying the lunches which the home provided to residents and which did not include NORP meals .","In DATE a new director was appointed who informed the applicant that the care home was obliged to provide CARDINAL meals a day to him .","In DATE the applicant concluded several consecutive agreements with the home in which he undertook to buy meals . As he had not paid the sums due for the period from DATE , the home sued the applicant . The ORG granted the action on DATE , and ORG upheld that decision on DATE .","In the meantime , on DATE the applicant signed an agreement in which he undertook to buy CARDINAL meals a day in the care home , namely lunch and an afternoon snack . On DATE , on the basis of that agreement the care home determined the sum which the applicant had to pay for his board . ORG upheld that decision .","According to the applicant , the director had verbally promised to ensure that vegetarian food was made available to him with reference to section CARDINAL(CARDINAL ) of Regulation no . DATE . Since NORP meals were not made available , the applicant informed the director on DATE that he no longer wished to receive lunches in the establishment .","An addendum to the internal rules of the care home of DATE specified that a resident could refuse to receive food for serious reasons only and subject to the approval of the director . Another addendum to the internal rules of CARDINAL DATE indicated the following as relevant grounds for not receiving food for a period exceeding DATE : absence from the home , placement in a hospital , the death or illness of a member of the resident \u2019s family , attending cultural or sports events , or any other serious ground accepted by the director .","On DATE the care home sued the applicant as he had not paid the sum due for meals in the period from DATE . On DATE the ORG granted the claim .","In the meantime , on DATE a physician issued a certificate confirming that the applicant suffered from chronic dyspepsia requiring protective foods .","NORP In decisions of CARDINAL DATE and DATE the care home re - determined the sums due from the applicant for the services it provided , including meals . On DATE and DATE ORG dismissed the applicant \u2019s appeals against those decisions , which thus became final . In the decision of DATE ORG held that buying meals from other sources under section CARDINAL(CARDINAL ) of Regulation no . DATE was only possible where such sources were duly authorised to offer catering services . However , that condition was not met in the applicant \u2019s case .","On DATE the social services department of ORG informed the applicant that NORP food would be made available in his care home from DATE .","On DATE the care home and the applicant concluded a new agreement under which the latter undertook to buy breakfast and lunch in the establishment . As the applicant failed to pay the sum due , the care home sued him before the ORG on DATE . On DATE that court approved a settlement under which the applicant undertook to pay the sum in issue in DATE instalments .","In DATE sets of execution proceedings were brought with a view to enforcing the sums which the courts had ordered the applicant to pay to the care home .","On CARDINAL DATE the establishment sued the applicant for unpaid meals for the period from DATE .","The applicant argued that he had revoked the agreement on buying food as the lunches served in the care home did not correspond to his health needs and beliefs .","On DATE the ORG granted the above action and ordered the applicant to pay the plaintiff CARDINAL,CARDINAL.CARDINAL NORP korunas ( SKK ) in DATE instalments of SKK CARDINAL,CARDINAL . The court established that , under the above agreement signed on DATE , the applicant had undertaken to buy CARDINAL meals a day in the care home , namely lunch and an afternoon snack . Those decisions had been upheld by ORG and had become final . During the period DATE the applicant had not paid the sum due for meals , namely SKK CARDINAL,CARDINAL.CARDINAL .","The court further noted that under the relevant regulation persons permanently living in a social care establishment were to be provided with CARDINAL meals a day , CARDINAL of which had to be lunch . The applicant had thus been obliged to buy such meals . His own decision to stop buying lunches during the period in issue had not been a reason for excusing the applicant from the obligation to pay the costs of his stay in the establishment , including the meals which the care home had been obliged to provide and which the applicant had been obliged to receive . ORG further held that the applicant had not shown that his state of health obliged him to eat exclusively vegetarian food .","The applicant appealed . He argued that ORG judgment was discriminatory and breached his human rights as he had been obliged to pay for meals which he had not wished to receive and which had not corresponded to his health needs and beliefs .","NORP The plaintiff maintained that , in accordance with the statutory provisions in force , serving meals was a part of the comprehensive care services which were provided to the applicant . The applicant had undertaken to pay for the CARDINAL meals which the law obliged him to buy . The food offered respected the principles of healthy nutrition and it was prepared with due regard to the age and state of health of the residents . Upon medical recommendation the care home provided , as required by the law , special food which corresponded to diabetic , high - protein or high - calorie diets . The applicant \u2019s preference for NORP food was therefore a lifestyle choice and did not constitute special dietary needs .","On DATE the ORG upheld the first - instance judgment . It noted that ORG , on DATE , had approved the decision delivered on CARDINAL September DATE by the care home in which the applicant lived . Those decisions had determined the amount which the applicant was liable to pay for staying in the care home . It included the price of CARDINAL meals a day which the applicant was obliged to buy in accordance with LAW . The plaintiff had been obliged to prepare the meals , including lunch , for the applicant as he was receiving permanent care in the establishment and his stay there had not been interrupted during the relevant period . The refusal by the applicant to receive the meals for the above - mentioned reasons was not a relevant ground , within the meaning of section CARDINAL ) of Regulation no . CARDINAL\/CARDINAL , for absolving him from the obligation to pay the sum due .","Finally , ORG noted that the applicant had not submitted any evidence indicating that his state of health was such that he needed to eat exclusively vegetarian food .","On DATE the applicant lodged a complaint with ORG . He complained that in the proceedings leading to ORG judgment of DATE he had been obliged to pay for meals which he did not wish to buy and which were not suitable from the point of view of his health , beliefs and religion . The applicant alleged a breach of several constitutional provisions , including the right to respect for CARDINAL \u2019s private life , the right to own property and the prohibition of discrimination .","On DATE ORG dismissed the complaint . It held that the ordinary courts involved had addressed and determined the relevant aspects of the case . ORG could not deal with the case on the mere ground that the applicant disagreed with ORG conclusion .","Under section CARDINAL(CARDINAL)(a ) of LAW DATE ( Law no . CARDINAL\/CARDINAL Coll . ) , social service establishments must provide indispensable welfare assistance to residents , which includes meals , accommodation and care .","Section CARDINAL(CARDINAL ) provides that meals served in such homes have to comply with the requirements of a healthy diet and take into account the age and state of health of the residents .","Paragraph CARDINAL of section CARDINAL obliges persons who receive care DATE round or on a DATE basis to receive CARDINAL meals a day in the establishment .","Pursuant to section ORG ) , services provided in social service establishments must be paid for unless the law provides otherwise .","Section CARDINAL(CARDINAL)(a ) provides that food , accommodation and care is to be paid for in social service homes with the exception of homes for children .","Regulation no . DATE issued by ORG and Family provides in section CARDINAL(CARDINAL ) and ( CARDINAL ) that care homes can obtain meals for persons in their care from different legal or natural persons authorised to provide catering services on the basis of a written agreement specifying the conditions and price .","Pursuant to section CARDINAL of that Regulation , where a care home provides social services to a person all DATE round or on a DATE basis , that person has to be provided with all meals or , as a minimum , CARDINAL meals a day , CARDINAL of which must be lunch .","Under section CARDINAL ) , where a person has informed the social service establishment in a timely manner that he does not wish to receive meals , the sum corresponding to such meals must be restored to him or her by DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22078","languageisocode":"ENG","respondent":"DEU","branch":"ADMISSIBILITY","date":2001,"docname":"VOLKMER v. GERMANY","importance":3,"conclusion":"Inadmissible","judges":"Ireneu Cabral Barreto","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by PERSON Meyer - Dulheuer , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","DATE , and from DATE until DATE , the applicant taught NORP , LANGUAGE and , from DATE onwards civic education ( Staatsb\u00fcrgerkunde ) in secondary schools , first in GPE ( \u201c the GPE \u201d ) , and as from DATE in GPE ( FRG ) . DATE and DATE he also served as honorary secretary ( ehrenamtlicher PERSON ) of the NORP Socialist Unity Party ( PERSON the SED \u201d ) at his school .","DATE and CARDINAL DATE the applicant , instead of teaching at school , was employed on a full - time basis in the executive committee of the district administration of the ORG ( hauptamtlicher politischer ORG der Kreisleitung der SED ) .","After the NORP reunification the applicant became a teacher in the public service of GPE . Subsequent to the publication of a book containing statements of a former pupil of the applicant , alleging that the latter , in his capacity as SED representative , had asked him to attend a church conference on ecology about which he had later been interrogated by an official of the district council , the applicant was interviewed on this incident by the district councillor for education and culture ( FAC of GPE - Friedrichshain on CARDINAL DATE . The applicant confirmed that he had asked his pupil , a secretary of the ORG \u2019s youth organisation ( ORG ) , to attend the conference , yet without being aware of any conspiratorial context or a later interrogation of the pupil . As a consequence of the interview , the district councillor decided to assign the applicant to another school within ORG and reserved the right to take further steps .","In a letter to the district councillor , dated DATE , the applicant stated that the participation of his former pupil in the church conference had occurred on a voluntary basis without any abuse of the teacher - student relationship . The aim of this action had been to confront the pupil with opinions contrary to his own . In any event , he had not been aware of any such purpose as the observation of political opponents .","On DATE the applicant signed a new contract with the State of GPE adjusting the terms of his employment to the new political situation in GPE . On DATE , the Special Commissioner of the Government for \u00ab person - related ORG documents of the former ORG of the GPE ( GPE die personenbezogenen Unterlagen des ehemaligen ORG ) , acting on a request by ORG , informed the authorities that the applicant had been registered as contact person since DATE in files of ORG ( ORG f\u00fcr Staatssicherheit , \u201c the MSS \u201d ) . After having signed a declaration of confidentiality , he had been interviewed on CARDINAL occasions about certain persons by ORG - officials . However , the applicant had not prepared any reports on individuals . In DATE the ORG had decided to cease cooperation with the applicant after only a few meetings due to a lack of willingness to cooperate on his part .","On DATE the applicant was heard once again by the district council ( PERSON ) of GPE - Friedrichshain in order to clarify why , in an official questionnaire handed out to him in DATE , he had replied \u201c no \u201d to the questions whether he had carried out any activity for the ORG and whether he had signed a declaration to that effect . The applicant stated that his answers had been correct since his contacts with the ORG had led to nothing . Moreover , he had never signed a declaration that he had not worked for the ORG but merely a declaration of confidentiality . An offer by the district council to cancel his contract of employment by means of a friendly settlement was rejected by the applicant .","On DATE , the applicant was suspended from his teaching functions . After the main staff council for public employees ( NORP ) had indicated that it would only accept an \u201c ordinary dismissal \u201d ( ordentliche PERSON ) within the delays prescribed by law , the applicant was served with a notice of termination of his employment contract dated DATE , and taking effect on DATE . The dismissal was based on ORG , Topic A , section III , no CARDINAL , \u00a7 CARDINAL , of GPE I to LAW ( see relevant domestic law and practice below ) . The notice of termination stated as the reason for the dismissal that the public employer could not reasonably be expected to continue the applicant \u2019s employment . Firstly , the applicant had failed to rebut the charge that he had been active for the ORG . Moreover , as a full - time member of the executive committee of the district administration of the ORG , and an active supporter of and collaborator with the former NORP CARDINAL - party system , he could not be considered suited to uphold the free democratic constitutional system in front of his pupils . This was also reflected by the fact that he had used CARDINAL pupil for spying on political opponents and by the lack of awareness of guilt he had shown during the interview of DATE . Finally , the applicant had failed to indicate his contacts with the ORG in the official questionnaire .","By a judgment of DATE , ORG ( GPE ) held that the applicant \u2019s employment had not been terminated by the dismissal of CARDINAL DATE , in the absence of any valid grounds for dismissal . In particular , the applicant could not be considered unsuited to teach NORP and NORP because of his former functions within the SED . Furthermore , the State of GPE had forfeited its right to terminate the applicant \u2019s employment after it had continued his employment following the first interview with the applicant in DATE . The applicant had been justified in denying any activity for the ORG in the official questionnaire because the attempt by the ORG to make him cooperate had remained unsuccessful .","By a judgment of DATE ORG of Berlin ( GPE ) reversed the judgment of ORG . Although the ORG held that the applicant had not cooperated with the ORG , and that his answers in the official questionnaire were correct since the inquiry was not whether he had had contact with the ORG but whether he had carried out activities for it , it found the dismissal to be justified on account of the applicant \u2019s unsuitability to continue teaching . It held that his full - time employment as an ORG official from DATE to DATE gave rise to doubts whether he was in a position to dispense the values of the German Basic Law ( Grundgesetz ) to his pupils . Similarly , his honorary function as an ORG representative at his school from DATE and again from DATE reflected his identification with the political system of the GPE . Moreover , the fact that the applicant had asked CARDINAL of his pupils , on the orders of the executive committee of the district administration of the SED , to attend a church conference in the knowledge that the pupil would subsequently be interrogated about that conference by the NORP authorities , constituted an abuse of the teacher - pupil relationship for the purpose of spying on political opponents . The ORG considered this behaviour to be incompatible with the educational aims of freedom of opinion and tolerance . The applicant \u2019s argument that his intention had been to confront the pupil with opinions opposite to his own was , in the ORG \u2019s view , a mere excuse . Furthermore , the ORG found that the public employer had not forfeited the right to dismiss the applicant after it had assigned him to another school because this measure was in the nature of a first and by no means final reaction to the interview with the applicant held on DATE . At that time the applicant had been explicitly informed that further steps could be taken against him and he could have expected , according to the practice in similar cases , a further consultation of the Special Commissioner of the Government in the matter . Similarly , the renewal of his contract in DATE was to be seen in the general context of readjusting the terms of employment of former public servants of the GPE and thus was without prejudice to the process of reviewing the personal involvement of such ORG employees with the political system of the GPE .","By a judgment of DATE ORG ( Bundesarbeitsgericht ) held that the termination of the applicant \u2019s employment was effective as of DATE and dismissed the remainder of his appeal against ORG judgment of DATE . It found that the applicant lacked the personal aptitude required for public service . Contrary to the case where a teacher had been dismissed for membership of ORG , which dismissal had been found to be in violation of LAW ( Vogt v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL ) , here the applicant \u2019s dismissal was not only based on his ORG membership and his political beliefs but on his professional and honorary functions within that party , which reflected his especially strong identification with the SED system and indicated his unfitness to uphold the free democratic constitutional system in front of his pupils . Indeed , as party secretary , it was his duty to implement the ideological aims of the SED at school ( \u201c die ideologische ORG der Ziele der SED in PERSON \u201d ) . His unsuitability was also shown by the fact that he had asked a pupil to spy on meetings of ideological opponents .","By a decision of DATE ORG ( Bundesverfassungsgericht ) declined to entertain the applicant \u2019s constitutional complaint against the above judgments .","Paragraphs DATE , Topic A , LAW , no . CARDINAL , of GPE I to the German LAW provide that civil servants of the GPE are integrated into the public service of the ORG by substituting in the existing work relations the Federal authorities and ORG for the authorities of the GPE . As civil servants of the GPE were part of an institution that did not satisfy the criteria of a ORG governed by the rule of law , special dismissal provisions were inserted in LAW , Topic A , LAW , no . CARDINAL , of GPE I to the LAW .","Paragraph CARDINAL of Chapter ORG , Topic A , LAW , no . CARDINAL , of GPE I to the German LAW accordingly provides :","\u201c Ordinary dismissal from an employment relationship in the public administration is permissible if","the employee does not comply with the requirements on account of a lack of professional qualification or personal aptitude ( ... ) \u201d","\u201c Die ordentliche ORG in der \u00f6ffentlichen PERSON zul\u00e4ssig , wenn","der Arbeitnehmer wegen mangelnder fachlicher GPE oder pers\u00f6nlicher GPE den Anforderungen nicht entspricht ( ... ) \u201d","Paragraph CARDINAL of the same LAW reads as follows :","\u201c A valid reason for an extraordinary dismissal exists , in particular , if the employee","( ... )","cooperated with the former ORG for ORG [ of GPE ]","and if the public employer can therefore not reasonably be expected to continue the employment relationship . \u201d","\u201c Ein wichtiger ORG f\u00fcr eine ausserordentliche PERSON insbesondere dann gegeben , wenn PERSON","( ... )","f\u00fcr das fr\u00fchere ORG f\u00fcr ORG f\u00fcr nationale GPE war","und deshalb ein Festhalten am NORP unzumutbar erscheint \u201d .","According to the case - law of ORG , a civil servant has a duty to uphold the free democratic constitutional system in everything he does ( BverfG , ORG , vol . CARDINAL , p. CARDINAL ) . In particular , a school teacher is required to instil the fundamental values of the NORP Basic PERSON in his pupils and to ensure loyalty to those values in times of crisis as well as in situations of conflict ( BVerfG , decision of CARDINAL DATE . no . CARDINAL BvL CARDINAL - BverfG , ORG , vol . CARDINAL , p. CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-79601","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2007,"docname":"GRUNER KLUB IM RATHAUS v. AUSTRIA","importance":3,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , PERSON i m Rathaus , is the fraction of an NORP party to ORG ( GPE ) . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by Mr PERSON , Head of ORG at ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE a police officer , PERSON , revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of ORG ( ORG ) . Subsequently criminal investigations were opened against several persons . In DATE ORG ( PERSON ) convicted PERSON GPE and the ORG official Mr GPE and sentenced them to CARDINAL months\u2019 imprisonment suspended on probation . This judgment was later , in DATE , quashed upon appeal and Mr PERSON and Mr GPE were acquitted .","In the meantime , after the first instance judgment , the applicant issued , on DATE , a press release which read as follows :","\u201c Member of ORG to the police information scandal:\u201d[A ] gift and [ a ] shame . \u201d","PERSON : GPE desperately needs a new Minister of Justice","GPE ( Member of ORG ) : \u201c A shame . This judgment quite clearly bears the hallmark of GPE \u2019s fellow party member , the Minister of Justice , PERSON \u201d so [ says ] the Green Member of ORG in view of the low [ sentences of the ] judgments against GPE and GPE . \u201c If CARDINAL considers the genesis of this incredible police information scandal , one has to wonder very much that after CARDINAL of suspects , DATE investigations and a long trial only this [ judgment ] remains . \u201d","PERSON concludes : \u201c An embarrassing judgment which lets down the persons who have been spied upon and opens the floodgates for further abuse of personal data by \u2018 political engaged\u2019 or simply \u2018 currupt\u2019 executive officers \u201d","[ ORG und Schande \u201d","PERSON : PERSON braucht dringend neuen LOC .","GPE ( PERSON ) \u201c PERSON . Dieses Urteil tr\u00e4gt ganz klar die PERSON \u201d , so die PERSON in GPE geringen PERSON GPE und GPE . \u201c PERSON man die PERSON unglaublichen NORP wundert man sich schon sehr , wenn von mehreren Dutzend Verd\u00e4chtigen , monatelangen ORG und ein langwieriger Prozess lediglich dies \u00fcbrig bleibt . \u201d","PERSON abschlie\u03b2end : \u201c PERSON peinliches ORG , das die bespitzelten QUANTITY l\u00e4sst und T\u00fcr und Tor f\u00fcr PERSON vertraulichen PERSON politisch ORG oder schlicht \u2018 k\u00e4ufliche\u2019 PERSON \u00f6ffnet \u201d ]","Mr PERSON subsequently brought proceedings under section CARDINAL of LAW ( Mediengesetz ) with ORG ( PERSON f\u00fcr PERSON ) .","On DATE ORG , having held on oral hearing , found that the statement \u201c A shame . This judgment quite clearly bears the hallmark of GPE \u2019s fellow party member , the Minister of Justice , PERSON \u201d amounted to defamation within the meaning of Articles CARDINAL and CARDINAL of LAW ) . It ordered the applicant under LAW to pay compensation to PERSON in the amount of MONEY ( ORG ) . It further ordered it to publish the judgment .","The court noted that the impugned statement read in its context suggested that PERSON had abused his authority as Minister of ORG to influence the deciding court . However , the applicant had failed to prove that this had indeed been so .","The applicant appealed and submitted in particular that the impugned statement amounted to a value judgment on a political issue and it was therefore , in any event , not possible to prove its veracity . Furthermore , there had been some factual basis for the statement . The applicant referred in this regard to the general political background of the \u201c police information scandal \u201d , the conduct of the criminal investigations and to the fact that Mr PERSON at the beginning of the investigations had refused all reproaches of illegal data consulting . The applicant finally contended that the court should have interpreted the statement in a broader sense , meaning that the judgment against Mr PERSON and Mr GPE corresponded to Mr PERSON \u2019s political mindset and style .","On DATE ORG ( Oberlandesgericht ) dismissed the applicant \u2019s appeal . It found that the impugned statement , read in its context , did not allow any other conclusion to be drawn than that Mr PERSON had unlawfully influenced the deciding judge in the criminal proceedings . However , the evidence adduced by the applicant , namely general press releases relating to the conduct of the criminal investigations in the police information case , PERSON statements in the context of these investigations and the fact that PERSON had himself been criticised for allegedly having used illegal obtained material , did not give any indication for the veracity of this allegation . The applicant \u2019s right to freedom under expression under LAW did not protect false statements of facts . Moreover , the applicant had not even given Mr PERSON the opportunity to comment .","This judgment was served on the applicant \u2019s counsel on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-85728","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2008,"docname":"CASE OF SZULC v. THE UNITED KINGDOM","importance":4,"conclusion":"Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi","text":["The applicant was born in DATE and lives in GPE .","His wife died on DATE , leaving CARDINAL children of QUANTITY and DATE of age respectively . His claim for widows\u2019 benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows\u2019 benefits because he was not a woman . The applicant appealed and his claims were consistently rejected up to the most recent decision dated DATE .","On an unspecified date the applicant made a claim to ORG , requesting an allowance equivalent to that received by a widow , namely ORG ( \u201c ORG \u201d ) . After various rejections , on DATE the Inland Revenue confirmed that he was ineligible for ORG as he was not a woman .","The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security or tax benefits were payable to widowers under GPE law .","The relevant domestic law and practice is described in the ORG \u2019s judgments in the cases of PERSON v. the GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-IV ; and PERSON , PERSON , PERSON and Geen v. the GPE , nos . CARDINAL , GPE , GPE and GPE , judgment of DATE ."],"violated_articles":["14","P1"],"violated_paragraphs":["P1-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-75593","languageisocode":"ENG","respondent":"HRV","branch":"CHAMBER","date":2006,"docname":"CASE OF BUJ v. CROATIA","importance":2,"conclusion":"Violation of Art. 6-1 (length of land registry proceedings);Violation of Art. 13;No separate issue under P1-1;Remainder inadmissible (length of inheritance proceedings);Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and lives in GPE .","The applicant \u2019s mother died on CARDINAL DATE and inheritance proceedings were opened before the ORG ( PERSON ) .","On DATE the court issued a decision distributing the property between the applicant and his brother . The relevant part of that decision reads :","... the land registry division of this court shall register the ownership of the heirs [ listed above ] , once [ that part of the decision ] becomes final ...","Subsequently , the applicant \u2019s brother lodged an appeal against that decision complaining about the ruling on the costs of the proceedings .","On DATE the ORG ( PERSON ) declared the appeal inadmissible . The decision was served on the applicant \u2019s representative on DATE .","It would appear that the applicant \u2019s ownership of the inherited property has to date not been recorded in the land register ."],"violated_articles":["13","6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-101947","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2010,"docname":"CASE OF CICHOCKI v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant filed an application for the distribution of an inheritance left by his grandmother .","On numerous occasions the proceedings were suspended , mostly due to the successive deaths of the parties . The proceedings were :","suspended on DATE ;","resumed on an unknown date in DATE ;","suspended on DATE ;","resumed on an unknown date in DATE or DATE ;","suspended on DATE ;","resumed on DATE ;","suspended on DATE ;","resumed on DATE ;","suspended on DATE ;","resumed on DATE ;","suspended on DATE but immediately resumed ;","suspended on DATE .","The proceedings are still pending before the court of first instance .","On DATE the applicant lodged a complaint with ORG under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki \u2013 \u201c the GPE \u201d ) . He sought a finding that the length of the proceedings was excessive and compensation .","On DATE ORG dismissed the applicant 's complaint . In its assessment of the length of the proceedings , ORG did not take into account the period before the entry into force of LAW . It then went on to analyse in detail the course of the proceedings , finding that ORG had conducted them in a correct and timely manner . It further concluded that the long duration of the proceedings had resulted from numerous requests and motions filed by the parties as well as from the successive deaths of the parties . This obliged ORG to suspend the proceedings each time . ORG finally pointed out that it was incumbent on the parties and not on the court to determine the identity of the heirs of the deceased parties in order for the proceedings to be continued .","The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL\/CARDINAL ( dec . ) , \u00a7 \u00a7 DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL"],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23849","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":2004,"docname":"LAMPRECHT v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Ireneu Cabral Barreto","text":["The applicant , PERSON , is an NORP national who lives in PERSON . She was represented before the Court by PERSON , a lawyer practising in PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant introduced proceedings for the preservation of evidence ( GPE ) against a building company , P.","On DATE ORG ( Bezirksgericht ) ordered the applicant to pay part of the defendant 's costs relating to the preservation of evidence , namely DATE NORP schillings ( ORG ) .","The defendant appealed against the costs order ( ORG ) . This appeal was not transmitted to the applicant .","On DATE ORG ( PERSON ) , sitting in camera , partly granted the defendant 's appeal and ordered the applicant to reimburse costs of altogether ORG CARDINAL,CARDINAL.CARDINAL .","No main proceedings were brought , as meanwhile , in DATE , the parties had concluded an out - of - court settlement . Under the terms of this settlement the P. company paid the applicant ORG CARDINAL,CARDINAL as compensation for damages and ORG as reimbursement for cash expenses incurred in the proceedings for the preservation of evidence .","Proceedings for the preservation of evidence are regulated in LAW ( Zivilproze\u00dfordnung ) .","\u201c ( CARDINAL ) An application for evidence to be taken or for witnesses and experts to be heard can be lodged , for the purposes of securing the presentation of the evidence , at any time in the proceedings and even before the proceedings have begun if there is cause to fear that the evidence will otherwise be lost or its examination made difficult .","( CARDINAL ) Those measures can also be ordered where the conditions of [ LAW ] paragraph CARDINAL are not satisfied if the present condition of an item of evidence is to be ascertained and the applicant has a legal interest in having it ascertained . \u201d","\u201c ( CARDINAL ) The party applying for the measure shall be liable for the costs of the taking of evidence without prejudice to any claim for damages on their part . The other party to the proceedings shall be reimbursed the necessary costs of his or her participation in the taking of evidence without prejudice to the decision in the main proceedings . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-117127","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2013,"docname":"CASE OF KASYMAKHUNOV AND SAYBATALOV v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible (Article 35-3 - Ratione materiae);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege)","judges":"Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lef\u00e8vre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turkovi\u0107","text":["The applicants were born in DATE and DATE respectively . The first applicant \u2019s whereabouts are unknown . The second applicant lives in LOC .","The applicants are members of ORG ut - PERSON .","Hizb ut - PERSON ( ORG \u2013 hereinafter \u201c PERSON \u201d ) is an international NORP organisation with branches in many parts of the world , including LOC and LOC . It advocates the overthrow of governments and their replacement by an NORP State in the form of a recreated Caliphate . PERSON first emerged among NORP in GPE in DATE . It has achieved a small , but highly committed following in a number of LOC states and has also gained in popularity among NORP in western LOC and GPE . It began working in LOC in DATE and has developed a committed following inside GPE , and to a lesser extent in neighbouring GPE , GPE and GPE .","On DATE ORG of GPE found CARDINAL organisations , including PERSON ut - GPE , to be terrorist organisations and prohibited their activity in the territory of GPE . It held a hearing in camera which was attended by a representative of ORG office , but not the NORP representatives . The part concerning ORG ut - GPE reads in its entirety as follows :","\u201c ORG ( \u2018 PERSON - GPE ) is an organisation that pursues the aims of overthrowing non - NORP governments and of establishing NORP rule on an international scale by reviving a \u2018 Worldwide Islamic Caliphate\u2019 , in the first place in the regions with a predominantly NORP population , including GPE and other members of ORG . Its main methods and activities include NORP militant propaganda , combined with intolerance towards other religions , active recruitment of supporters , and activities aimed at promoting schism and disunity in society ( primarily proselytism with massive financial support ) . It is banned in LOC and ORG countries ( GPE ) . \u201d","On DATE ORG rejected as out of time the appeal submitted by one of the banned organisations . It found it established , on the basis of the evidence submitted by ORG office , that the information about the decision of DATE had been published in the mass media in DATE . The fact that the organisation had not learned about that decision until DATE was irrelevant . There had therefore been no reason to extend the time - limit for appealing .","On DATE a list of organisations declared to be terrorist organisations by the NORP courts was for the first time published in the official periodical ORG . The list included , among others , the organisations declared to be terrorist organisations by ORG decision of DATE , such as ORG ut - GPE .","On DATE the first applicant was arrested . On DATE criminal proceedings were instituted against him and his partner Ms NORP They were accused of being members of PERSON and were charged with aiding and abetting terrorism , founding a criminal organisation and using forged documents , offences under LAW , LAW and LAW .","When questioned by the investigator , the first applicant admitted to being a member of PERSON ut - GPE and living in GPE under a false name and with forged identity documents . According to him , PERSON was a political organisation with a strict hierarchical structure and the aim of establishing the Caliphate through \u201c velvet revolutions \u201d , first in NORP lands and then in other traditionally non - NORP countries . It did not resort to , or call for , violence . Its members viewed ORG as a political ideology rather than a religious belief . The first applicant \u2019s main activity consisted in talking to people in an attempt to persuade them to join PERSON ut - GPE . He distributed PERSON literature and explained its ideology . He had succeeded in recruiting CARDINAL or CARDINAL people who formed the GPE section of NORP ut - GPE under his leadership . He gave instructions to the members of his section and was also responsible for maintaining contacts with other local sections of NORP ut - GPE . He knew that the organisation had been banned in GPE and therefore the members of his section had pseudonyms .","His partner PERSON gave similar evidence . She affirmed that PERSON was not a terrorist organisation .","NORP The investigator also obtained statements from several witnesses . The witnesses stated that the first applicant and PERSON had attempted to persuade them to become members of PERSON ut - GPE and had supplied them with PERSON literature . They gave the leaflets and brochures received from the first applicant to the investigator . Some of the witnesses testified that the first applicant had urged them to fight the unfaithful , including with weapons , and they had the impression that he had called for assistance to NORP guerrillas . CARDINAL witness also stated that the first applicant had advocated the establishment of sharia on the territory of GPE .","The first applicant \u2019s flat was searched and guidelines on the use of weapons , explosives and poisons were found there .","In DATE the case was sent for trial before ORG .","The first applicant pleaded not guilty . He admitted his membership of NORP ut - PERSON and confirmed his previous description of its activities and ideology . He insisted that it was not a terrorist organisation and that it condemned any use of violence . He repudiated in part his previous statement , stating that it had been given under pressure , and denied any attempts to persuade people to join PERSON . He further stated that the guidelines found in his flat had been planted by the police .","The first applicant \u2019s partner PERSON denied being a member of PERSON and stated that she had not known about its being banned in GPE .","The trial court then questioned witnesses called by the prosecution , who confirmed the statements they had given during the investigation .","Finally , the trial court examined the leaflets and brochures distributed by the first applicant .","On DATE the ORG found the first applicant guilty of aiding and abetting terrorism , founding a criminal organisation and using forged documents ( LAW , LAW and LAW ) . Referring to the witness testimony , the first applicant \u2019s statements to the investigator and documentary evidence , the court found it established that the first applicant , being a member of PERSON , had founded a local section of that organisation and , in the period from DATE to DATE , had recruited new members and distributed the organisation \u2019s literature . The court analysed the contents of the leaflets and brochures distributed by the first applicant and found that they proclaimed the superiority of ORG over other religions and political ideologies , such as communism and capitalism , and advocated intolerance towards non - NORP . They also rejected democratic principles as incompatible with the rules of sharia . They declared war on governments which were not based on ORG and called for their overthrow , including by violent methods . They urged members of PERSON to take part in the sacred war ( jihad ) . By stating that jihad was not a defensive war but a struggle to expand ORG , which had to be carried out even if the \u201c unfaithful \u201d did not attack NORP , the documents in question openly advocated and glorified warfare in the name of Allah . They also stated that such countries as GPE , GPE , GPE and GPE were enemy GPE and that war had to be declared against any ORG that occupied NORP lands . ORG above enemy States should not be allowed to enter NORP states and it should be permitted to kill them and take their property if they were not NORP . Referring to the contents of the above - mentioned leaflets and brochures , the contents of the guidelines on the use of weapons , explosives and poisons found in the first applicant \u2019s flat and ORG decision of DATE , the court concluded that the local section of NORP ut - GPE founded by the first applicant was a terrorist organisation . The court also found it established that the first applicant had known about ORG decision of DATE . His actions had therefore amounted to incitement to participate in the activities of a terrorist organisation , punishable under LAW , and to founding of a criminal organisation , punishable under LAW of the LAW .","The court sentenced the first applicant to CARDINAL years\u2019 imprisonment .","In his submissions on appeal the first applicant stated that he had never called for or resorted to violence . Nor had he been involved in any terrorist activities . His conviction for spreading NORP ideology had breached his right to freedom of speech and opinion . He also argued that the trial court had incorrectly interpreted the religious terminology contained in PERSON ut - GPE \u2019s literature . Given that the trial judge did not have sufficient knowledge of religious matters , an expert opinion should have been ordered . Finally , the first applicant submitted that he had had no knowledge of the decision of ORG banning PERSON as that decision had never been officially published .","On DATE ORG of GPE upheld the conviction on appeal .","On DATE the ORG of GPE decided to bring the applicant \u2019s sentence into conformity with the recent amendments to LAW . It found that incitement to participate in the activities of a terrorist organisation was no longer classified as adding or abetting terrorism in the new version of LAW ( see paragraph CARDINAL below ) . The court therefore decided to set aside the conviction under LAW and reduce the first applicant \u2019s sentence to DATE and CARDINAL months\u2019 imprisonment . On DATE ORG upheld that decision on appeal .","On DATE the first applicant finished serving his sentence . He is now facing extradition proceedings to GPE , where criminal proceedings are pending against him in relation to his membership of ORG ut - GPE . On DATE he disappeared from GPE and his current whereabouts are unknown .","On DATE criminal proceedings were instituted against the second applicant and CARDINAL other persons by the LOC regional prosecutor \u2019s office . They were accused of being members of ORG ut - GPE and charged with aiding and abetting terrorism , an offence under LAW \u00a7 CARDINAL of LAW , and founding and membership of an extremist organisation , an offence under LAW and QUANTITY of LAW .","When questioned by the investigator , the second applicant admitted to being a member of ORG ut - GPE and , since DATE , the leader of its local sections in LOC and Tobolsk . Their aim was to establish the Caliphate in LOC . He had learned that the organisation had been banned in GPE in the course of his interview with the police in DATE . The meetings of the local sections had all been held in secret . He had chaired the meetings , had admitted new members , had distributed PERSON literature and had explained its ideology . He had also been responsible for maintaining contacts with the GPE section of NORP ut - GPE .","His co - defendants gave similar evidence . They confirmed the second applicant \u2019s leadership position and his regular contact with other local sections of ORG ut - GPE in GPE . During their regular and secret meetings they had read PERSON literature and discussed its aims , among which had been recruitment of new members and dissemination of ORG ut - GPE \u2019s ideology among the population through media publications and distribution of leaflets . The issues they had discussed during the meetings were often political rather than religious . Members of the organisation had to give an oath , pay contributions and obey orders by the leaders . They considered themselves part of the international organisation NORP ut - PERSON . Some of them stated that they knew that the organisation had been banned in GPE .","The investigator also obtained statements from several witnesses . The witnesses stated that the defendants had attempted to persuade them to become members of ORG ut - GPE and had supplied them with the organisation \u2019s literature .","The GPE flats were searched and multiple copies of ORG literature and leaflets were found there . Some of those leaflets criticised the authorities\u2019 decision to ban ORG ut - GPE and the ensuing arrests and criminal proceedings against its members . It was also discovered that documents containing PERSON ut - GPE \u2019s texts and information about its activities were stored on the hard disk of the second applicant \u2019s computer and several floppy disks .","In DATE the case was sent for trial before ORG . All defendants , including the second applicant , repudiated their previous statements , stating that they had been given under duress , and pleaded not guilty .","They admitted to being followers of ORG ut - GPE \u2019s ideology but denied being members of the organisation . They had gathered regularly and openly to read NORP texts and discuss religious issues . All the texts had been printed out from the Internet and none of them had been banned or recognised as extremist . They had never planned or participated in any terrorist activities , nor had they incited others to commit terrorist acts . They were opposed to violence and strived to achieve their aim , namely establishment of the ORG , through ideological and political struggle .","The trial court then questioned witnesses called by the prosecution . Some of them confirmed the evidence they had given during the investigation , while the others repudiated their previous statements .","The court also listened to audio recordings and watched video recordings of the defendants\u2019 meetings . During the meetings the defendants discussed the ideology and aims of ORG ut - GPE , its structure and the methods employed by it . The second applicant and his assistant had been the principal spokesmen . They had instructed the others that orders should be immediately obeyed and had warned that those who refused to obey would be punished . They had also explained that the local section \u2019s main activities were to be proselytism , involvement of new members and establishment of contacts with high - ranking ORG officials . During CARDINAL of the meetings the defendants had discussed the possibility of obtaining arms and explosives and committing terrorist acts . During another meeting the second applicant \u2019s assistant had stated the following :","\u201c \u2018 I am astonished why you have NORP here , why you have so many of them accumulated?\u2019","\u2018 We have overseers in CARDINAL towns , I mean our supporters . The criminal world supports us . PERSON supports us . In our town the [ criminals ] support us.\u2019","\u2018 You should have hate , fury ... You should be a wolf , you should attack . You should not be afraid of burying someone in asphalt , when someone is assaulted you should join in , you should make a contribution to violence . You should be like that . NORP are foul people , they act in an underhand way . They will not carry out an attack themselves , they will hire someone . They are sly and rich , they control the town thanks to their PERSON \u201d","The court further examined the contents of the Internet site maintained by ORG ut - GPE and the literature found in the GPE flats .","Finally , the court examined expert reports submitted by the prosecutor . A panel composed of experts in religious , political and linguistic matters examined the literature found during the search of the GPE flats and the audio and video recordings . The experts concluded that the documents and recordings contained religious and political propaganda on behalf of ORG ut - GPE . Some of them contained radical fundamentalist statements accepting and advocating the use of violence and armed struggle in the form of jihad . Therefore , there were reasons to consider that PERSON utTahrir \u2019s literature was extremist in nature and that its dissemination amounted to pro - terrorism propaganda . The documents under examination advocated the idea that all existing GPE and governments were illegitimate as they were not based on ORG and called for their overthrow , including by violent methods , for the universal NORP of mankind and for the establishment of a \u201c Worldwide NORP Caliphate \u201d ; in other words , they called for a coup d\u2019\u00e9tat and the forcible taking over of the government in all countries . The experts noted that although the documents did not indicate clearly the methods by which the organisation \u2019s aims were to be achieved and did not openly call for the commission of terrorist acts , they unambiguously rejected any possibility of the organisation \u2019s participation in the democratic political process . It followed , in the experts\u2019 opinion , that its aim of taking over governments could only be achieved through the use of violence . The documents also contained ideas promoting the superiority of NORP over adherents of other religions and consistent calls for confrontation between NORP fundamentalists and all others . They were capable of creating hostility and disunity in society . Finally , the linguistic experts found that the documents under examination were highly manipulative and capable of influencing the mind and the will of the reader . They employed professional manipulation techniques . Thus , they twisted the meanings of some words , for example interpreting \u201c terrorism \u201d as acts of violence against NORP only , while the same acts against adherents of other religions were described as sacred war against non - believers ( jihad ) .","The trial court questioned CARDINAL of the experts , who confirmed his findings . He added that ORG ut - GPE was an extremist organisation that was intolerant towards other religions . It called for violence against non - believers , which might be interpreted as incitement to terrorism .","The experts called by the defence disputed the above findings . CARDINAL of the experts , a co - president of ORG of GPE , stated to the court that PERSON ut - GPE was not a terrorist organisation and was not involved in the commission of any terrorist acts . Its ideology was utopian and unrealistic . Its main activity was NORP proselytism . According to its texts , the ORG was to be established by peaceful methods . Another expert also testified that the members of ORG ut - GPE were not violent and did not present any danger to national security .","On DATE the ORG found the second applicant and his co - defendants guilty as charged . Referring to the witness testimony , the GPE statements to the investigator , the audio and video recordings of the GPE meetings and the expert opinions , the court found it established that since DATE the defendants had been members of PERSON . That organisation had been declared to be a terrorist and extremist organisation and banned by ORG . Given that ORG decision had been duly published , that the second applicant had been informed about its contents in DATE in the course of his interview with the police in connection with a similar criminal case and that leaflets criticising that decision and the ensuing arrests and criminal proceedings against members of PERSON had been found in the GPE flats , ORG found it established that the defendants knew about ORG decision banning PERSON . Despite that fact , they had not stopped their activities as members of ORG ut - GPE and had continued to hold secret meetings , recruit new members and distribute the organisation \u2019s literature . The documents distributed by the defendants were extremist as they advocated violence , rejected the rule of law and encouraged hatred towards adherents of other religions . Their actions had therefore amounted to founding and membership of a banned extremist organisation , punishable under LAW of LAW , and to incitement to participate in the activities of a terrorist organisation , punishable under LAW .","The court sentenced the second applicant to DATE and QUANTITY months\u2019 imprisonment for the offence under LAW and to CARDINAL years\u2019 imprisonment for the offence under LAW . The aggregate sentence was fixed at CARDINAL years\u2019 imprisonment .","In his submissions on appeal the second applicant stated that he had never committed any terrorist acts or been involved in any terrorist activities . He and his co - defendants had gathered to read NORP literature and to discuss religious issues . His conviction had therefore violated his rights under Articles CARDINAL , CARDINAL of the Convention .","On DATE ORG upheld the conviction on appeal .","Information on the nature and activities of ORG ut - GPE is scarce and contradictory . The most comprehensive report was prepared by ORG in DATE . The report , entitled \u201c Radical ORG in LOC : Responding to PERSON \u201d , reads , as far as relevant , as follows :","\u201c PERSON ut - GPE is not a religious organisation , but rather a political party whose ideology is based on ORG . It aims to re - establish the historical Caliphate in order to bring together all NORP lands under NORP rule and establish a state capable of counterbalancing the West . It rejects contemporary efforts to establish NORP states , asserting that GPE and GPE do not meet the necessary criteria . According to PERSON , the NORP state is one in which NORP law \u2013 Sharia \u2013 is applied to all walks of life , and there is no compromise with other forms of legislation .","ORG ut - GPE claims to reject violence as a form of political struggle , and most of its activities are peaceful . In theory , the group rejects terrorism , considering the killing of innocents to be against NORP law . However , behind this rhetoric , there is some ideological justification for violence in its literature , and it admits participation in a number of failed coup attempts in LOC . It also has contacts with some groups much less scrupulous about violence . But despite the allegations of governments , there is no proof of its involvement in terrorist activities in LOC or elsewhere .","Government responses have been contradictory and often ineffective . In much of LOC , the organisation is banned from acting openly , and many of its members have been imprisoned . NORP governments have taken particularly harsh stances , with GPE leading the way by arresting and sentencing CARDINAL of members to long prison terms . In some other NORP countries , such as GPE , PERSON ut - GPE acts more or less openly , as it does in much of LOC ...","The party \u2019s writings elaborate CARDINAL stages of political struggle , based on its interpretation of the historical mission of the Prophet PERSON in establishing the first NORP state :","The First : The stage of culturing ; this involves finding and cultivating individuals who are convinced by the thought and method of the party . This is necessary in order to formulate and establish a group capable of carrying the party \u2019s ideas .","The Second : The stage of interaction with the ORG ( wider NORP community ) in order to encourage the ORG to work for ORG and to carry the Da\u2019wah ( message ) as if it was its own , and so that it works to establish NORP in life , state and society .","The Third : The stage of taking the government and implementing ORG completely and totally , and carrying its message to the world .","The first stage is the most important in present party activity and CARDINAL of the keys to its longevity . It is based on finding appropriate members and moulding them to its thinking ...","The second stage involves : \u2018 Collective culturing of the masses ... through organising lessons in the FAC , conferences , lectures , places of public gathering , newspapers , books and leaflets ... \u2019 PERSON ut - GPE is very effective at spreading its views through wide publication of books and leaflets in multiple languages and a network of well - run websites that provide access to most of the party \u2019s literature .","Through these CARDINAL stages of political work , PERSON ut - GPE claims that it can develop mass understanding of its ideas ( although not necessarily mass membership ) , and most importantly that it can persuade influential figures in politics , the military and elsewhere to act in accordance with its program and aims . The party actively attempts to recruit well - educated members of society , particularly those in positions that allow them to influence popular opinion .","Getting from this position \u2013 wide acceptance of ideas , and some influence on those who are capable of influencing policy DATE to establishment of an NORP state is the essence of the third stage of political struggle . It is this stage , the actual seizure of power , and the establishment of the NORP state , that is most murky in the literature . In most of its writings PERSON rejects participation in parliamentary democracy , or any alliances with other political parties to gain power ...","There is little doubt about ORG ut - GPE \u2019s disregard for democracy . It rejects the concept as a NORP , anti - NORP invention and is not interested in acting as a party within an open political system . A recent publication claims : \u2018 Democracy ... is considered a kufr [ unbelievers ] system , it is in clear contradiction with the Qu\u2019ran and GPE ...","It is widely reported that ORG ut - GPE , both in LOC and beyond , eschews violence to achieve its ends . Some human rights activists have argued that it is essentially a peaceful group that operates only in the realm of ideas and propaganda . It has never been proven to have been involved in any violence in LOC , and in its other global activities it has generally pursued its aims through peaceful propaganda . It is strongly opposed to GPE policy in LOC , but does not call for terrorist actions against GPE . Indeed , it claims to be opposed to terrorist activity and asserts that the killing of innocent civilians is against NORP law . Its literature is straightforward , claiming that \u2018 ... military struggle is not the method of re - establishing the Khilafah\u2019 ...","Yet the view that ORG ut - GPE is opposed to political violence per se is mistaken . The situation is much more nuanced than most researchers allow ... CARDINAL scholar explains :","\u2018 ... in practical terms an - PERSON argued that a regime could be brought down through acts of civil disobedience such as strikes , noncooperation with the authorities or demonstrations , or through a procession to the palace or presidential residence , provided that the movement enjoys exclusive control and leadership ... Alternatively , it could be toppled through a military coup executed by forces that have agreed to hand over power to the movement.\u2019","However , ORG ut - ORG argues that as a political party it does not undertake any physical or violent actions . So how can it justify involvement in a military coup ?","\u2018 ORG ut - GPE itself eschews the use of force [ but ] ... internal sources argue that groups pledging the party their back - up can use arms ... if society stands against the regime its removal even by military force does not constitute an act of violence : this would be the case only if the party were to kill its opponents to arrive in power , for example.\u2019 ...","What this means in practice is not certain , but it could clearly be interpreted as seeking military assistance from other groups , should members be experiencing considerable harm , or in the broadest sense to establish the ORG . In this way , the party remains committed to its intellectual and political struggle but does not rule out seeking assistance from other groups , including some that will take military action on its behalf ...","The party \u2019s interpretation of jihad is also somewhat confused at first glance ... A member in GPE explained : \u2018 There are CARDINAL types of jihad : the physical and the spiritual . The physical jihad will come after the establishment of the Caliphate . The spiritual is for now\u2019 ...","Although the main jihad is not expected until the ORG is introduced , this does not mean that NORP should not fight defensive wars . Thus , NORP , PERSON ut - GPE members included , are enjoined to fight against an invader if attacked ...","There is much loose rhetoric about jihad in party leaflets , which does not always underline these distinctions . And there is clearly some potential for a defensive jihad to be interpreted in a very broad fashion . But the main thrust of ORG ut - GPE thinking seems to have remained intact : the jihad will come when the ORG is established ...","Historically , the party \u2019s record provides no evidence of it being involved in terrorist activity against civilians , or in military actions against GPE or Western interests . But there is good evidence of its involvement in a series of failed coups and attempts to overthrow governments in LOC . Some of the evidence for these incidents is disputed , but it seems clear that PERSON ut - GPE was involved in an attempted coup PERSON in GPE on several occasions in DATE and DATE . It was also accused of involvement in an attack on the military academy in GPE in DATE , interpreted by the government as preparation for a coup . Far from denying involvement , party representatives admit that , \u2018 It is no secret that ORG ut - GPE has been involved in a number of failed coup attempts in the GPE ...","Thus while it seems clear that ideologically and practically PERSON can not be classified as a terrorist group , it is willing to persuade militaries to overthrow their governments , and in certain cases be involved in such military coups itself . Should it ever come to power , its willingness to use violence as an NORP state would be more certain : it consistently emphasises that the duty of the NORP state is to carry out military campaigns to free NORP lands from the rule of \u2018 ORG and to wage war against GPE ... \u201d","The report goes on to describe the position of ORG ut - GPE in western LOC :","\u201c According to the ORG ut - GPE leader in GPE , PERSON , the party is growing by actively recruiting second - generation NORP immigrants ... The party \u2019s popularity among NORP in the LOC has continued to grow , providing it a strong organisational , and possibly financial , base .","GPE became the first NORP state to ban ORG ut - GPE in DATE , citing its anti - NORP and anti - NORP propaganda . However , the NORP authorities did not provide any evidence of links between it and terrorist groups . NORP security forces carried out further raids on known activists , now working illegally , in DATE .","In GPE the party has also garnered support among immigrants . In DATE its leader , PERSON , was convicted of breaking anti - racism laws , after he handed out leaflets allegedly calling for NORP to be killed . The group claims the quotes were taken out of context . The government has apparently considered banning the party , which according to media reports has CARDINAL members .","In the GPE PERSON remains very active , particularly in GPE and in towns with major NORP populations such as GPE , GPE and GPE . It has been notably successful in recruiting students , although it has been banned from many university campuses , because of its anti - Semitism , alleged threatening behaviour towards students of other faiths , and public objections to homosexuality ... \u201d","Human Rights Watch notes in its DATE report \u201c Creating Enemies of the ORG . Religious Persecution in GPE \u201d :","\u201c PERSON ut - GPE renounces violence as a means to achieve reestablishment of the ORG . However , it does not reject the use of violence during armed conflicts already under way and in which the group regards NORP as struggling against oppressors , such as NORP violence against NORP occupation . Its literature denounces secularism and Western - style democracy . Its anti - NORP and anti - GPE statements have led the government of GPE to ban it ... Some in the diplomatic community , in particular the GPE government , consider NORP ut - GPE to be a political organization and therefore argue that imprisoned NORP ut - GPE members are not victims of religious persecution . But religion and politics are inseparable in PERSON ut - GPE \u2019s ideology and activities ... Even if CARDINAL accepts that there is a political component to ORG ut - GPE \u2019s ideology , methods , and goals , this does not vitiate the right of that group \u2019s members to be protected from religion - based persecution ...","ORG ut - GPE \u2019s designation as a nonviolent organization has been contested . PERSON ut - GPE literature does not renounce violence in armed struggles already under way ORG and GPE , GPE , and LOC \u2013 in which it views NORP as the victims of persecution . But PERSON ut - GPE members have consistently rejected the use of violence to achieve the aim of reestablishing the Caliphate , which they believe will only be legitimate if created the same way they believe the Prophet PERSON created the original Caliphate , and which can occur only as a result of gradual \u2018 ORG among NORP ... \u201d","Another report on ORG ut - GPE \u2019s activities , entitled \u201c Whether PERSON ut - GPE is an extremist organisation ? \u201d , was published on DATE by ORG , a NORP nongovernmental organisation . The report states , in particular , that following ORG decision of DATE banning PERSON ut - GPE , many of its members were charged with aiding and abetting terrorism , membership of a criminal organisation , membership of an extremist organisation or unlawful possession of arms . The first applicant was the first to be convicted at final instance . Many other convictions followed thereafter .","The report further states that the analysis of ORG ut - GPE \u2019s literature reveals that that organisation openly and unequivocally rejects democratic principles and political freedoms , such as freedom of religion and freedom of thought , declaring that they are contrary to ORG . Moreover , the literature declares that it is justified to use violence to fight democracy . However , it affirms that such violence will be used only after the establishment of the ORG and the commencement of jihad . Although there are CARDINAL commonly accepted meanings of this term in GPE , PERSON utTahrir \u2019s literature almost always means holy war when speaking of jihad . Many countries , such as GPE and GPE , are declared to be enemy GPE which should be fought against already , including by violent methods . PERSON , however , does not directly call upon its members to participate in that fight . PERSON expresses its support to NORP separatists , even though it condemns terrorist acts against the civil population committed on NORP territory , at the same time denying the possibility of involvement of NORP separatists in such acts . It should be also noted that PERSON does not use the term \u201c terrorism \u201d in its common meaning , considering any violent acts against enemy GPE , including those that would be normally classified as terrorist acts , to constitute part of holy war . The report cites PERSON document entitled \u201c The NORP rule on hijacking aeroplanes \u201d , which states that it is justified to hijack civil aeroplanes of enemy GPE and kill their passengers because the citizens of such GPE and their property constitute legitimate war targets . That document was deleted from PERSON website DATE , but no statements disavowing its contents have ever been made by the organisation \u2019s leadership , which gives cause to believe that it has been deleted for the purposes of secrecy . As regards the means for the establishment of the ORG , ORG ut - GPE \u2019s literature is not clear on this point . It is certain that the organisation rejects the possibility of participation in parliamentary elections or any other democratic process in order to come to power . There remains the possibility of a coup d\u2019\u00e9tat committed by more or less violent methods . The Caliphate must , however , first be established on traditionally NORP territories , which do not include GPE . Accordingly , the report concludes that PERSON ut - GPE is not planning any coup PERSON in GPE and its activities there are limited to proselytism .","Finally , the report notes that some of ORG ut - GPE \u2019s documents , including those that can still be found on the organisation \u2019s NORP website , contain anti - NORP propaganda , glorification of suicide bombers in GPE and calls for violence against NORP and for the destruction of GPE . It thus concludes that NORP ut - GPE is an extremist organisation stirring anti - NORP hatred and advocating violence . The report recommends , however , that ORG decision banning PERSON ut - GPE should be annulled and that prosecution of individuals on the mere ground of their membership of that organisation should be stopped . It considers it advisable that only those of the organisation \u2019s members who have made statements advocating hatred or violence should face criminal or other proceedings .","A report entitled \u201c PERSON ut GPE ( ORG ) \u201d , published on DATE by the NORP research project ORG , Security , and LAW ( TTSRL ) , financed by ORG , reads as follows :","\u201c PERSON ut GPE ( ORG ) presents itself as \u2018 a political party whose ideology is ORG , so politics is its work and ORG is its ideology ... \u2019 ... In their own eyes , PERSON ut GPE ( for short ) is a political group and not a priestly one ... It is a trans - national party or movement that claims to try to achieve its political goals without the use of violence and has branches in CARDINAL countries , including both NORP and NORP countries . In the NORP world they are , for instance , active not only in LOC , but also in GPE , GPE , GPE , and the former NORP republics in LOC . In almost all of these countries , NORP ut GPE is perceived as a threat to the state or even as a terrorist organisation . In the NORP world , PERSON ut GPE has a presence in , among others , GPE , GPE , GPE , GPE , GPE and GPE . To these countries , ORG ut GPE presents a particularly difficult challenge since it holds radical NORP views , but openly only advocates peaceful change . Nonetheless , in a number of ORG member states , the party is regarded as one that secretly does support the idea of a violent jihad and\/or has been involved in anti - NORP incidents ...","The organizational structure of ORG ut GPE is rather complex ... The identities of ORG ut GPE \u2019s current leader and senior officers have not been mentioned in reliable open sources .","Concrete issues at the level of different national branches are in the hands of national leaders , where the scope and content of the activities within the branches greatly differ . A general distinction can be made between countries in which the party is permitted to operate freely , and countries in which ORG ut GPE is prosecuted . In GPE , for instance , [ NORP ut GPE ] is organized in a secretive and hierarchical pyramid structure made up of many CARDINAL - person cells whose members , after they have completed training averaging DATE , form their own groups or \u2018 halka\u2019 - also of CARDINAL to CARDINAL members . Other sources speak of CARDINAL - person cells ... In ORG member states , the branches of NORP ut GPE are organized like most political parties and have a hierarchical structure with a national leader , local groups and the possibility of membership for anyone who supports the party \u2019s ideas . In addition , the NORP branches of the party also consist of study groups , the above - mentioned \u2018 halkas.\u2019 ...","From the beginning , PERSON ut GPE \u2019s leadership decreed that members should not participate in terrorist activities . This message has been continuously reverberated . There are , however , many allegations of links between the party and terrorist organisations . It should be stressed that none of these allegations are backed by concrete evidence ...","There are , nonetheless , possible indirect links between ORG ut GPE and terrorist groups and individuals . In GPE , CARDINAL men , who in DATE were arrested and charged with conspiring to assassinate the NORP ambassador , were reported to have been in possession of NORP ut GPE literature and to have helped organize PERSON ut GPE meetings in GPE ... Another man , PERSON DATE who is linked to the CARDINAL men currently on trial in GPE on charges of planning terrorist attacks DATE and DATE has stated that he became a member of PERSON ut GPE and another radical group , PERSON , while at the university , when he became angered by the Gulf War ... In the above mentioned cases , as well as in most cases , those behind the allegations only point at involvement in GPE ut GPE activities while studying , the possession of NORP ut GPE materials , and other rather indirect relations between suspects of terrorism and the party . More serious are the allegations that connect the party to the other radical group mentioned above , AlMuhajiroun , established in DATE as a splinter group that broke off from LOC . According to leader PERSON , the CARDINAL groups initially split because PERSON ut GPE was \u2018 too soft\u2019 ... His group has been accused of recruiting young NORP in GPE to fight abroad in places such as LOC , GPE and GPE ...","Despite the above - mentioned allegations , authorities in the ORG have not yet formally accused NORP ut GPE for having links with terrorist organisations . In addition , there are no official reports that members have joined or become involved in the global jihad movement . However , it should be noted that some counties do see the organisation as a possible or potential threat to democracy and the rule of law ...","Unlike more traditional NORP parties , PERSON ut GPE refuses to be involved in local politics , making it impossible for regional leaders to co - opt the group . Although PERSON ut GPE describes itself as a political party , it does not want to participate in elections or want to be part of coalition governments ... The process towards the utopian NORP Caliphate is viewed more as a social or intellectual process rather than a political one .","For the above - mentioned intellectual struggle and intellectual transformation , PERSON ut GPE focuses primarily on highly educated NORP . The method is the socalled NORP da\u2019wah through which society can be transformed into an NORP one . Within the ORG , the concrete translation of this concept is distributing leaflets at universities and near FAC , or to organise meetings on current political and social issues , such as the situation in GPE , the cartoon issue in GPE and LOC ... Although the method of da\u2019wah seems very theoretical and impractical in relation to the stated goal , it can not be denied that the party has managed to attract CARDINAL of NORP in LOC who believe in its method ...","As mentioned above , PERSON ut GPE has branches in CARDINAL countries , in a number of which the party is considered a terrorist organisation . Within the ORG , where religiously inspired political parties enjoy relatively greater freedom than they do anywhere else , only GPE has outlawed NORP ut GPE ...","... [ Many ] questions remain open with regard to the nature of this party and its impact on society and how to deal with its spreading of anti - NORP , anti - Western and non - democratic ideas and sentiments ...","A case - study on an organisation such as ORG ut GPE as part of an overall large research project on counter - terrorism might suggest prematurely that PERSON ut - GPE falls in the category of labelled terrorist organisations , or at least belongs to a group of organisations that pose a serious threat to our NORP society . However , such qualifications can not be given to PERSON without serious reservations . The question can even be raised whether such qualification is fit for this organisation at all . Although , in its philosophy PERSON ut - GPE has anti - democratic tendencies , it also rejects the idea of violent jihad to achieve their goal of a caliphate . Most allegations on the terrorist connection of the organisation or some of its members point at rather indirect links , are not based on solid sources , or should by their numbers be assessed as mere coincidences .","On the other hand , experience shows that organisations such as ORG ut - GPE are \u2018 very smart in walking the very fine line between propaganda and incitement to ORG , according to PERSON , director of ORG at ORG ... However , outlawing this organisation without a proper cause might have the opposite effect . It is therefore important to monitor with prudence and to act on facts instead of allegations . \u201d","Hizb ut - GPE \u2019s aims and principles , as well as the details of what an NORP state would look like , are outlined in a range of literature produced by the organisation . In particular , it has prepared a Draft Constitution which sketches the major provisions of an NORP State ( wording as in the original ) :","\u201c The NORP \u2018 Aqeedah [ creed ] constitutes the foundation of the ORG . Nothing is permitted to exist in the government \u2019s structure , accountability , or any other aspect connected with the government , that does not take the \u2018 Aqeedah as its source . The \u2018 Aqeedah is also the source for the ORG \u2019s constitution and LAW canons . Nothing connected to the constitution or canons is permitted to exist unless it emanates from the NORP \u2018 Aqeedah . \u201d","\u201c The ORG implements the aHkaam Sharia [ divine rules ] on all citizens who hold citizenship of ORG , whether NORP or not , in the following manner :","a. The aHkaam Sharia is implemented in its entirety , without exception , on all NORP .","b. Non - NORP are allowed to follow their own beliefs and worships .","c. Those who are guilty of apostasy ( murtadd ) from ORG are to be executed according to the rule of apostasy , provided they have by themselves renounced ORG . If they are born as non - NORP , i.e. , if they are the sons of apostates , then they are treated as non - NORP according to their status as being either polytheists ( mushriks ) or People of the Book .","d. In matters of food and clothing the non - NORP are treated according to their religions within the limits allowed by ORG .","e. ORG affairs ( including divorce ) among non - NORP are settled in accordance with their religions , but between non - NORP and NORP they are settled according to the aHkaam Sharia .","PERSON All the remaining LAW matters and rules , such as : the application of transactions , punishments and evidences ( at court ) , the system of ruling and economics are implemented by the ORG upon everyone , NORP and non - NORP alike . This includes the people of treaties ( mu\u2019aahid ) , the protected subjects ( ahludh dhimmah ) and all who submit to the authority of ORG . The implementation on these people is the same as the implementation on the subjects of the ORG . Ambassadors and envoys enjoy diplomatic immunity . \u201d","\u201c No one is permitted to take charge of ruling , or any action considered to be of the nature of ruling , except a male who is free ( Hurr ) , i.e. not a slave , mature ( baaligh ) , sane ( \u2018 aaqil ) , trustworthy ( \u2018 adl ) , competent ; and he must [ be a NORP ] . \u201d","\u201c NORP are entitled to establish political parties to question the rulers and to access the positions of ruling through the ORG [ NORP community ] on condition that the parties are based on the \u2018 Aqeedah of ORG and their adopted rules are aHkaam Sharia [ divine rules ] ; the establishment of such a party does not require a license by the ORG . Any party not established on the basis of ORG is prohibited . \u201d","\u201c The PERSON is deputised by the ORG with authority to implement the LAW . \u201d","\u201c Every mature male and female NORP , who is sane , has the right to participate in the election of the PERSON and in giving him the pledge ( ba\u2019iah ) . Non - Muslims have no right in this regard . \u201d","\u201c There are CARDINAL conditions needed in the PERSON ... They are to be a male , NORP , free ( Hurr ) , mature ( baaligh ) , sane ( \u2018 aaqil ) , trustworthy ( \u2018 adl ) and able ( qaadir ) . \u201d","LAW further indicates that all highest Government officials , the chief judge and the judges of ORG ( the court which settles disputes between the citizens and the State ) must be male and NORP . NORP women are allowed to become lower - level officials and judges ( Articles CARDINAL , DATE , CARDINAL , DATE , DATE ) . NORP may be appointed only to technical and administrative official positions ( LAW ) .","LAW further continues :","\u201c The members of the Majlis al - Ummah [ people \u2019s assembly ] are those people who represent the NORP in respect of expressing their views to the PERSON when consulted . Non - NORP are allowed to be members of ORG so that they can voice their complaints in respect to unjust acts performed by the rulers or the misapplication of the NORP laws . \u201d","\u201c The members of the Majlis al - Ummah are elected by the people . \u201d","\u201c Consultation ( Shoora ) and the mashoora are the seeking of views in absolute terms . These views are not binding in legislation , definitions , intellectual matters such as discovering the facts and the technical and scientific matters . However they are binding when the PERSON consults in other practical matters and actions that do not need scrutiny or research . \u201d","\u201c All citizens , NORP or not , may express their views , but PERSON is a right for the NORP only . \u201d","\u201c Jihad is a compulsory duty ( farD ) on all NORP . Military training is therefore compulsory . Thus , every male NORP , DATE and over , is obliged to undergo military training in readiness for jihad ... \u201d","\u201c Segregation of the sexes is fundamental , they should not meet together except for a need that the LAW allows or for a purpose the LAW allows men and women to meet for , such as trading or pilgrimage ( PERSON ) . \u201d","\u201c Women have the same rights and obligations as men , except for those specified by the LAW evidences to be for him or her . Thus , she has the right to practice in trading , farming , and industry ; to partake in contracts and transactions ; to possess all form of property ; to invest her funds by herself ( or by others ) ; and to conduct all of life \u2019s affairs by her . \u201d","\u201c A woman can participate in elections ... and elect , and be a member of the Majlis al - Ummah , and can be appointed as an official of the ORG in a non - ruling position . \u201d","\u201c Women live within a public and private life . Within their public life , they are allowed to live with other women , ORG males [ males forbidden to them in marriage ] and foreign men ( whom they can marry ) on condition that nothing of the women \u2019s body is revealed , apart from her face and hands , and that the clothing is not revealing nor her charms displayed . Within the private life she is not allowed to live except with women or her ORG males and she is not allowed to live together with foreign men . In both cases she has to restrict herself with the rules of LAW . \u201d","\u201c The custody of children is both a right and duty of the mother , whether NORP or not , so long as the child is in need of this care . When children , girls or boys , are no longer in need of care , they are to choose which parent they wish to live with , whether the child is male or female . If CARDINAL of the parents is NORP , there is no choice for the child is to join the NORP parent . \u201d","\u201c PERSON [ property tax ] is collected from NORP on their properties ... \u201d","\u201c Jizyah ( head - tax ) is collected from the non - NORP ( dhimmis ) . It is to be taken from the mature men if they are financially capable of paying it . It is not taken from women or children . \u201d","\u201c The NORP creed constitutes the basis upon which the education policy is built . The syllabi and methods of teaching are designed to prevent a departure from this basis . \u201d","\u201c The purpose of education is to form the NORP personality in thought and behaviour . Therefore , all subjects in the curriculum must be chosen on this basis . \u201d","\u201c Arts and crafts may be related to science , such as commerce , navigation and agriculture . In such cases , they are studied without restriction or conditions . Sometimes , however , arts and crafts are connected to culture and influenced by a particular viewpoint of life , such as painting and sculpting . If this viewpoint of life contradicts the NORP viewpoint of life , these arts and crafts are not taken . \u201d","\u201c The state \u2019s curriculum is CARDINAL , and no curriculum other than that of the state is allowed to be taught . Private schools provided they are not foreign , are allowed as long as they adopt the state \u2019s curriculum and establish themselves on the ORG \u2019s educational policy and accomplish the goal of education set by the ORG . Teaching in such schools should not be mixed between males and females , whether the students or the teachers ; and they should not be specific for certain deen [ religion ] , madhab [ schools of NORP law ] , race or colour . \u201d","\u201c It is absolutely forbidden for any individual , party , group or association to have relations with a foreign state ... \u201d","\u201c The state \u2019s relations with other states are built upon CARDINAL considerations . These are :","...","GPE with whom we do not have treaties , the actual imperialist states , like GPE , GPE and GPE and those states that have designs on the ORG , like GPE , are considered to be potentially belligerent states . All precautions must be taken towards them and it would be wrong to establish diplomatic relations with them . Their subjects may enter ORG only with a passport and a visa specific to every individual and for every visit , unless it became a real belligerent country .","With states that are actually belligerent states , like GPE , a state of war must be taken as the basis for all measures and dealings with them . They must be dealt with as if a real war existed between us DATE whether an armistice exists or not \u2013 and all their subjects are prevented from entering the ORG . \u201d","\u201c The ORG is forbidden to belong to any organisation that is based on something other than ORG or which applies non - NORP rules . This includes international organisations like ORG , ORG , ORG and ORG , and regional organisations like ORG . \u201d","Article CARDINAL \u00a7 CARDINAL of LAW of GPE ( as in force at the material time ) provides as follows :","\u201c Terrorism , that is an explosion , arson or other acts creating a danger of loss of human life , substantial material damage or other socially dangerous consequences , provided that such acts were committed for the purposes of undermining national security , frightening the population or influencing the authorities in order to make them adopt decisions favourable to terrorists , as well as threats to commit the above - mentioned acts , is punishable by DATE imprisonment . \u201d","Article CARDINAL of the Code ( as in force at the material time ) reads , in so far as relevant , as follows :","\u201c CARDINAL . Aiding and abetting terrorism , that is incitement of a person to commit an offence under Articles CARDINAL [ terrorism ] , CARDINAL [ taking of hostages ] , CARDINAL [ organisation or membership of an armed criminal group ] , CARDINAL [ hijacking of an aeroplane , a ship or a train ] , CARDINAL [ attacking of a ORG official ] or CARDINAL [ attacking of a person or an institution under international protection ] of LAW ; incitement of a person to participate in the activities of a terrorist organisation ; training or arming of a person with the aim of committing one of the above - mentioned offences ; or financing of terrorism , is punishable by DATE imprisonment ... \u201d","On DATE that Article was amended . In particular , incitement to participate in the activities of a terrorist organisation was no longer classified as adding and abetting terrorism punishable under Article CARDINAL .","Article CARDINAL of the Code reads , in so far as relevant , as follows :","\u201c CARDINAL . The founding of a criminal group ( criminal organisation ) for committing serious and especially serious offences , as well as the leadership of such group or CARDINAL of its sections ... is punishable by DATE imprisonment ... \u201d","Article CARDINAL of the LAW provides that serious offences are premeditated offences for which LAW prescribes a maximum penalty of CARDINAL years\u2019 imprisonment . Especially serious offences are premeditated offences for which the Code prescribes a maximum penalty of DATE imprisonment or a heavier penalty .","Article CARDINAL of the Code reads as follows :","\u201c CARDINAL . The founding of a non - profit , religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities is punishable by a fine ... , CARDINAL to CARDINAL months\u2019 detention or up to CARDINAL years\u2019 imprisonment .","Membership of a non - profit , religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities is punishable by a fine ... , CARDINAL months\u2019 detention or up to two years\u2019 imprisonment . \u201d","Article CARDINAL CARDINAL of the LAW provides that the use of official documents known to be forged is punishable by a fine , correctional labour , or CARDINAL six months\u2019 detention .","The Anti - Terrorism Act ( Federal Law no . CARDINAL of DATE , as in force at the material time ) defined terrorism as violence or the threat of violence directed against persons or organisations , as well as destruction or the threat of destruction of property or other physical objects , provided that such acts created a danger of loss of human life , substantial material damage or other socially dangerous consequences and that they were committed for the purposes of undermining national security , frightening the population , influencing the authorities in order to make them adopt decisions favourable to terrorists or satisfying their illegitimate pecuniary or other interests ; an attempt on the life of a ORG or public official committed for the purposes of stopping his or her public or political activities or in revenge for such activities ; an attack on a representative of a foreign ORG or a staff member of an international organisation enjoying international protection or on official buildings or means of transport of persons enjoying international protection , provided that such acts were committed with the purpose of provoking war or worsening international relations ( section CARDINAL \u00a7 CARDINAL ) .","Terrorist activities include the following activities :","\u2013 organisation , planning , preparation and commission of terrorist acts ;","\u2013 incitement to commit terrorist acts , violence against persons or organisations or destruction of physical objects for terrorist purposes ;","\u2013 creation of an illegal armed group , criminal group ( organisation ) or organised group for the commission of terrorist acts , as well as involvement in such acts ;","\u2013 recruitment , arming and training of terrorists ;","\u2013 financing of an organisation or group known to be terrorist or any assistance to them ( section CARDINAL \u00a7 CARDINAL ) .","A terrorist organisation is an organisation created with the aim of carrying out terrorist activities or admitting the possibility of recourse to terrorism as part of its activities ( section CARDINAL \u00a7 CARDINAL) .","An organisation may be declared a terrorist organisation and dissolved by a judicial decision at the request of a prosecutor ( section CARDINAL ) .","On DATE a new LAW ( Federal Law no . CARDINALFZ ) was passed to replace the DATE LAW . The DATE LAW provides that a list of organisations which have been declared terrorist by a NORP court is to be kept by the federal security services . That list must be published in the official periodical press , as determined by the Government ( section CARDINAL \u00a7 CARDINAL ) . Pursuant to Government Decree no . CARDINAL-p of DATE , the list of organisations which have been declared to be terrorist organisations by a NORP court is to be published in the official periodical ORG .","The Suppression of Extremism Act ( Federal Law no . CARDINAL of DATE , as in force at the material time ) , which was recently examined by ORG ( see Opinion on the Federal Law on Combating Extremist Activity of the Russian Federation , adopted by ORG at its CARDINALst Plenary Session ( GPE , DATE ) ) , defines extremist activities as activities of non - profit , religious or other organisations , the media or individuals consisting in planning , directing , preparing or committing acts aimed at :","\u2013 forcible change of the constitutional foundations of GPE and breach of its territorial integrity ;","\u2013 undermining the national security of GPE ;","\u2013 taking over or usurpation of power ;","\u2013 founding of armed criminal groups ;","\u2013 carrying out of terrorist activities ;","\u2013 encouraging racial , ethnic , religious or social hatred accompanied by violence or calls for violence ;","\u2013 creation of mass disorder , commission of disorderly acts or acts of vandalism out of ideological , political , racial , ethnic or religious hatred or enmity , or out of hatred or enmity towards a social group ;","\u2013 propaganda promoting the exceptionality , superiority or inferiority of citizens on the ground of their religion , social position , race , ethnic origin or language ;","\u2013 propaganda and public display of NORP attributes or symbols , or attributes or symbols which are similar to NORP attributes or symbols to the point of becoming undistinguishable ;","\u2013 public appeals to carry out the above - mentioned activities or to commit the above - mentioned acts , as well as financing of the above - mentioned activities or the assistance of their performance by other means , including by providing financial support or technical facilities , information services or other facilities ( section CARDINAL\u00a7 CARDINAL ) .","The Suppression of Extremism Act further defines an extremist organisation as a non - profit , religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities as defined by the LAW ( section CARDINAL \u00a7 CARDINAL ) .","It is prohibited to publish and distribute extremist material \u2013 that is , printed , audio , video or other material meeting CARDINAL of the criteria defined in section CARDINAL \u00a7 CARDINAL . Such material includes official material of banned extremist organisations ( section CARDINAL ) ."],"violated_articles":["7"],"violated_paragraphs":["7-1"],"violated_bulletpoints":[],"non_violated_articles":["7"],"non_violated_paragraphs":["7-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-90274","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2008,"docname":"CASE OF STANKOVIC v. SERBIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant , a bus conductor , was dismissed by his employer , \u201c FAC \u201d , a transportation company based in PERSON .","On DATE he filed a claim with ORG in PERSON ( \u201c the ORG \u201d ) , seeking reinstatement and payment of salary arrears .","Following a remittal of DATE , the next hearing in the case was scheduled by ORG for DATE .","Of the CARDINAL separate hearings scheduled DATE and DATE , it would appear that CARDINAL were adjourned whilst CARDINAL were held . As regards the former , CARDINAL hearings were adjourned because the respondent and\/or several witnesses had not been duly summoned and the other CARDINAL because witnesses , of whom CARDINAL were proposed by the applicant , had , though duly summoned , failed to appear in court ( for which omission they were ultimately fined ) .","On DATE ORG ruled against the applicant .","On DATE the applicant was served with this judgment .","On DATE the applicant filed an appeal with ORG in PERSON ( \u201c the ORG \u201d ) .","On DATE ORG returned the case file to ORG , requesting it to submit certain missing documents .","On DATE ORG upheld the judgment rendered at first instance .","On DATE ORG rejected the applicant \u2019s appeal on points of law ( revizija ) .","Article CARDINAL \u00a7 CARDINAL provided that all employment - related disputes were to be resolved by the courts within DATE from the date of institution of the proceedings .","This Act entered into force on DATE and thereby repealed LAW .","The text of LAW of LAW DATE corresponds to LAW ."],"violated_articles":["6"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-79446","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2007,"docname":"CASE OF RAYLYAN v. RUSSIA","importance":3,"conclusion":"Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)","judges":"Loukis Loucaides","text":["The applicant was born in DATE and lives in GPE , GPE .","The applicant is a businessman . In DATE he purchased a saw - mill with the intention of operating it as a going concern .","In DATE the local authority ordered him to shut the saw - mill down because it was situated in the vicinity of sewage disposal installations and threatened the town 's sanitation .","The applicant brought proceedings against the FAC municipal maintenance company ( \u043c\u0443\u043d\u0438\u0446\u0438\u043f\u0430\u043b\u044c\u043d\u043e\u0435 \u0436\u0438\u043b\u0438\u0449\u043d\u043e-\u043a\u043e\u043c\u043c\u0443\u043d\u0430\u043b\u044c\u043d\u043e\u0435 \u0445\u043e\u0437\u044f\u0439\u0441\u0442\u0432\u043e \u0433\u043e\u0440\u043e\u0434\u0430 PERSON ) and the Maykop municipal water supply company ( \u043c\u0443\u043d\u0438\u0446\u0438\u043f\u0430\u043b\u044c\u043d\u043e\u0435 \u0443\u043d\u0438\u0442\u0430\u0440\u043d\u043e\u0435 \u043f\u0440\u0435\u0434\u043f\u0440\u0438\u044f\u0442\u0438\u0435 \u00ab \u0412\u043e\u0434\u043e\u043a\u0430\u043d\u0430\u043b \u00bb , hereinafter \u201c the water supply company \u201d ) , in which he sought an order requiring them to lift the ban on the operation of the saw - mill and damages .","On DATE the ORG of the Republic of Adygeya ordered the water supply company not to prevent the applicant from carrying on his activity . The judgment was not appealed against and became final .","NORP However , it was not enforced . Instead , the water supply company blocked the road leading to the saw - mill and switched off the electricity supply .","The applicant was not issued with a warrant of execution until DATE pending a decision in another case in which a third party was trying to challenge his title to the saw - mill .","On DATE the enforcement proceedings were set in motion .","DATE the bailiff suspended the enforcement proceedings and applied for clarification of the judgment of DATE .","On DATE the ORG held that the judgment of DATE had to be enforced exactly as it was worded .","On DATE the bailiff brought the enforcement proceedings to an end . However , the access road remained blocked and the electricity supply was not restored .","The applicant appealed against the decision to discontinue the enforcement proceedings .","On DATE the ORG quashed that decision .","On DATE ORG upheld the above judgment on appeal .","On DATE the enforcement proceedings were resumed .","On DATE the director of the water supply company issued access passes to the applicant and his nominees .","On DATE free access to the saw - mill was restored , and the obstacles preventing the applicant from using it were removed . He was invited to collect the passes , but failed to do so . When the bailiffs went to the applicant 's home to serve him with papers concerning the enforcement , they were unable to find him , but were met instead by his father , who refused to look at the papers and explained that the applicant had moved to another city .","On DATE the enforcement proceedings were discontinued . The applicant did not appeal against that decision ."],"violated_articles":["6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-103234","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2011,"docname":"CASE OF SPORER v. AUSTRIA","importance":3,"conclusion":"No violation of Art. 6-1;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant was born in DATE and lives in PERSON .","The applicant \u2019s son PERSON was born out of wedlock on CARDINAL DATE . The child was given the applicant \u2019s family name by decision of GPE of DATE .","At that time PERSON \u2019s mother was living as a tenant in the applicant \u2019s house , in a separate apartment . The applicant was sharing an apartment with his long - term partner , PERSON , who later became his wife , and their son NORP aged CARDINAL at that time . During PERSON \u2019s first year the applicant took parental leave and took care of him together with U. Subsequently , ORG mother took parental leave .","NORP In DATE PERSON \u2019s mother moved out of the applicant \u2019s house .","On DATE the applicant asked ORG ( Bezirksgericht ) to transfer sole custody of PERSON to him under LAW of LAW ( ORG ) . He submitted in particular that he and U. had mainly taken care of PERSON and that the child \u2019s mother was not capable of doing so . The latter opposed the transfer of custody . At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel .","NORP By letter of CARDINAL DATE ORG ( Jugendamt ) , which had been following the case since DATE , expressed the view that both parents were capable of exercising custody .","On DATE the applicant and PERSON \u2019s mother appeared before ORG and were heard by the judge .","According to the minutes , the applicant requested that the opinion of an expert in child psychology be taken . PERSON \u2019s mother agreed to that request . The court appointed PERSON , an expert in child psychology , and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant . The judge then proceeded to discuss the factual and legal issues with the parties . The parties then concluded an agreement to the effect that , pending a decision on custody , PERSON would spend DATE with his mother and DATE with the applicant .","The expert , Dr PERSON , submitted his opinion to ORG on DATE . The opinion was based on interviews which the expert had conducted with PERSON \u2019s mother and the applicant and his partner . He had also paid a visit to the applicant \u2019s home during which he had observed how the applicant and the other members of his family interacted with PERSON The expert opinion was served on the applicant .","On DATE ORG held a hearing in the presence of the applicant , his counsel , PERSON \u2019s mother , PERSON and a representative of ORG .","According to the minutes , the contents of the file were read out . Subsequently , Dr PERSON opinion was discussed . In the course of the hearing Dr PERSON supplemented his opinion . He expressed the view that PERSON \u2019s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant . The representative of ORG opposed the view that PERSON \u2019s mother was not capable of raising the child . None of the parties made further submissions .","On DATE , that is , on DATE , ORG ordered a second expert in child psychology , PERSON , to submit an opinion on whether or not PERSON \u2019s mother was capable of taking care of him . In her opinion of DATE , PERSON came to the conclusion that PERSON \u2019s mother was sufficiently mature , did not show any emotional instability and was capable of taking care of him . A copy of this expert opinion was served on the applicant .","In addition ORG requested ORG to prepare a report . A representative of ORG visited PERSON and his mother at their home and as a result of that visit concluded that she was able to exercise custody .","On DATE and CARDINAL DATE the applicant requested that a decisive expert opinion ( LAW ) be commissioned . The motion contained comprehensive submissions on PERSON \u2019s mother \u2019s alleged incapacity to raise him .","ORG ordered a third expert , PERSON , to submit a decisive expert opinion on the question whether PERSON \u2019s mother was capable of exercising custody .","Both the applicant and PERSON \u2019s mother made further written submissions . Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of PERSON","On DATE Dr B. submitted his expert opinion . Having interviewed the applicant and PERSON \u2019s mother , he found that both parents were in principle capable of taking care of PERSON The mother had some issues as regards her own personality development and a somewhat limited capacity to cope with everyday life . The applicant had a tendency to dominate and had given reason to fear that , if custody was awarded to him , he would try to curtail the mother \u2019s access rights . The applicant could provide a more stable environment and a more coherent style of upbringing . However , PERSON \u2019s best interests would not be manifestly endangered if custody remained with his mother . It was recommended that the applicant be given extensive access rights , in that PERSON should stay with him from DATE , spend DATE with him in DATE and DATE during DATE .","A copy of PERSON expert opinion was served on the applicant , and he was given DATE to submit comments . Within that time - limit , the applicant requested that the expert opinion be discussed at a hearing . He did not make any comments in writing .","Without holding a further hearing , ORG dismissed the applicant \u2019s request for sole custody of PERSON to be transferred to him by decision of DATE .","ORG noted that under LAW the mother of a child born out of wedlock had sole custody . A transfer of custody was only to be ordered if the child \u2019s best interests were at risk . In the present case the applicant would have had to prove that PERSON \u2019s mother was unable to take care of him . While the first expert , Mr PERSON , had come to the conclusion that this was the case , the second expert , PERSON , had reached the opposite conclusion . Finally , the decisive expert opinion by PERSON had found it established that PERSON \u2019s mother was capable of taking care of him . Having regard to the second and third expert opinions and to the view expressed by ORG , it had been established that PERSON \u2019s mother was able to exercise custody and the applicant had failed to adduce proof to the contrary .","Furthermore , ORG noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion , since it found that opinion coherent and convincing . The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings . It followed that the applicant \u2019s further requests for the taking of evidence had to be dismissed .","Finally , the court ruled that its decision was immediately enforceable with the consequence that the agreement of CARDINAL DATE was no longer effective .","The applicant appealed . He complained about a number of procedural shortcomings . He alleged , inter alia , that ORG had failed to hold a hearing for the purpose of discussing PERSON expert opinion , and that it had not heard him in person .","In addition , the applicant contended that the relevant provisions of LAW , namely , Articles CARDINAL and CARDINAL , were discriminatory and suggested that the appellate court request ORG to rule on their constitutionality . Since PERSON had been born out of wedlock , his mother had sole custody of him and he , as the child \u2019s father , could only be awarded custody if the mother put the child \u2019s well - being at risk . In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child \u2019s best interests required that sole custody be awarded to CARDINAL of them . The application of different criteria when the parents of a child born out of wedlock separated lacked reasonable justification .","On DATE the ORG dismissed the applicant \u2019s appeal .","ORG found that the proceedings before ORG had not suffered from any procedural defects . In non - contentious proceedings it was not always required to question the parties at a hearing . A hearing had been held on DATE in the presence of the applicant . Furthermore , the applicant had had the opportunity to file written submissions , of which he had made ample use . He had also been interviewed by the experts . A further hearing for the purpose of discussing the decisive expert opinion of PERSON would only have been required had there been substantial doubts as to its correctness .","Moreover , ORG did not see any reason to request ORG to rule on the constitutionality of the relevant provisions of LAW . It noted that LAW allowed life - companions to request joint custody . The applicant had not claimed to have cohabited with PERSON \u2019s mother . On the contrary he had cohabited with another woman , PERSON , who had meanwhile become his wife .","A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified . The rule contained in LAW that in the case of a child born out of wedlock ( unless the parents had requested joint custody under LAW ) custody was only to be transferred if the mother put the child \u2019s well - being at risk , was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child .","The applicant filed an extraordinary appeal on points of law . He repeated his complaints about the alleged procedural shortcomings . In particular , he submitted that the court had neither held a hearing to discuss the decisive expert opinion of PERSON nor given him an opportunity to comment in writing . The applicant also reiterated his request for the case to be submitted to ORG .","On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant \u2019s extraordinary appeal on points of law . It noted that the courts were not obliged to hold hearings in custody proceedings . The applicant had been given the opportunity to comment on the expert opinion at issue . Moreover , the courts had correctly applied LAW . It had not been shown that the mother put PERSON \u2019s well - being at risk .","To date , PERSON \u2019s mother continues to have sole custody of him while the applicant has a right of access under the terms recommended by the courts in the custody proceedings .","The relevant provisions of LAW in the version in force at the material time read as follows :","\u201c The parents shall care for and raise the minor child , manage its assets and represent it in these , as well as in all other matters ; care , upbringing and asset management also include representing the child in these matters before the law [ in court ] . The parents shall proceed on a consensual basis when complying with these obligations and exercising these rights . \u201d","\u201c The mother shall have sole custody of an illegitimate child . Moreover , unless the present provisions stipulate otherwise , the provisions on legitimate children regarding maintenance and custody shall also apply to illegitimate children . \u201d","\u201c ( CARDINAL ) Whenever the parents of a child live in a common household , they may agree that both parents will have custody in the future . The court shall uphold the agreement if it serves the interests of the child . If CARDINAL parent leaves the common household , other than on a temporary basis , \u00a7 CARDINAL and \u00a7 CARDINALa shall be applied accordingly .","( CARDINAL ) NORP Whenever the parents do not live in a common household , they can agree that the father shall also have full custodial powers or regarding specific matters in the future , if they present such an agreement to the court indicating the parent with which the child is to stay primarily . If the child stays primarily in the household of the father , the latter must also be assigned full custody . The court shall uphold the agreement if it serves the interests of the child . \u201d","This version of LAW was introduced by DATE LAW , which entered into force on DATE . Before that date parents of an illegitimate child could only agree on exercising custody jointly if they were living in a common household .","\u201c ( CARDINAL ) Whenever the parents put the well - being of a minor child at risk , on account of their conduct , the court will take the steps necessary to secure the interests of the child , irrespective of which party has applied to the court . In particular , the court may withdraw all or part of the custodial rights in respect of the child , ... \u201d","\u201c ( CARDINAL ) If the marriage of the parents of a minor legitimate child is dissolved or annulled , the custodial rights of both parents remain intact . However , they may present an agreement to the court DATE even modifying an existing agreement \u2013 regarding custodial responsibility . In this connection it may be agreed that CARDINAL parent alone or both parents shall have custody . Where both parents have custodial powers , those of CARDINAL parent may be limited to specific matters .","( CARDINAL ) Where both parents have custody , they must submit an agreement to the court regarding the parent with whom the child is to stay primarily . This parent must always be put in charge of all custodial matters .","( CARDINAL ) The court must approve the agreement of the parents , if it serves the interests of the child . \u201d","\u201c ( CARDINAL ) If an agreement in accordance with LAW on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled , or if it is incompatible with the interests of the child , the court must decide which parent shall henceforth have sole custody , if all attempts to reach an amicable solution fail .","( CARDINAL ) NORP If both parents have custody under LAW after their marriage has been dissolved or annulled , and if one parent applies for the withdrawal of that custody , the court must decide which parent shall have sole custody , if all attempts to reach an amicable solution fail . \u201d","\u201c The above provisions shall also be applied if the parents of a minor legitimate child live apart , other than on a temporary basis . However , in such a case the court shall decide on custody only upon application by a parent . \u201d","A recent case concerning similar complaints ( ORG v. GPE , no . CARDINAL , \u00a7 \u00a7 DATE , DATE ) contains the following summary of comparative law :","\u201c CARDINAL . A survey on comparative law taking into account the national laws of a selection of Member States of ORG shows that basically all Member GPE included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock . The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the GPE agreement to exercise joint authority .","NORP However , the solutions in the Member GPE vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect .","In only a limited number of countries do the statutory regulations explicitly address this issue . In a few countries , such as GPE , GPE and GPE , the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non - consenting parent has a right of veto . By contrast , the laws in GPE , GPE and GPE appear to provide for a joint exercise of parental authority even without the GPE consent .","In some Member GPE such as GPE and GPE , while the law itself is not clear on the subject , the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents , whereas for example ORG has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees . A similar approach seems to be followed in GPE .","With the exception of the few countries where a right of veto of CARDINAL parent is explicitly stipulated in national law , the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of CARDINAL of the parents bearing in mind the best interests of the child . All Member GPE emphasise the importance of the child \u2019s best interest in decisions regarding the attribution of custody . In determining the child \u2019s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child and the particularegards , inter alia , the demonstrable interest in and commitment to the child by the respective parent .","In summary , ... , the survey confirms that while different approaches exist in the Member GPE , the majority provide for paternal participation in custody if the parents were not married to each other , either irrespective of the mother \u2019s will or at least by court order following an evaluation of the child \u2019s interests . \u201d"],"violated_articles":["14","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-76775","languageisocode":"ENG","respondent":"SWE","branch":"ADMISSIBILITY","date":2006,"docname":"SZABO v. SWEDEN","importance":1,"conclusion":"Inadmissible","judges":"","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a prison sentence in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE ORG ( tingsr\u00e4tten ) convicted the applicant of committing a drugs offence with aggravating circumstances and of attempting to commit a drug smuggling offence with aggravating circumstances on DATE , and sentenced him to CARDINAL years\u2019 imprisonment . The court also ordered that he be permanently expelled from GPE .","On DATE the GPE and PERSON of Appeal ( hovr\u00e4tten ) upheld the judgment of ORG . The applicant did not appeal against the appellate court \u2019s judgment , which accordingly became legally binding on DATE .","On DATE ORG ( Kriminalv\u00e5rdsmyndigheten ) determined the period during which the applicant was to remain in prison . It noted that he had begun to serve his sentence on DATE and that DATE of the prison term , having regard to the total period spent in detention , would be on DATE . The ORG further determined that the applicant would be eligible for conditional release on DATE at the earliest .","On DATE ORG ( NORP , hereafter \u201c the Administration \u201d ) declared its intention to make a request to the applicant \u2019s country of origin , GPE , for him to serve the remainder of his sentence there .","The applicant declared on DATE that he did not consent to such a transfer .","On DATE the ORG requested the transfer of the applicant to GPE under LAW ( hereafter \u201c LAW ) and LAW . On DATE the NORP Ministry of Justice forwarded this request to ORG .","In an order dated DATE ORG decided that the conditions for taking over enforcement of the NORP sentence were met .","On DATE ORG informed its NORP counterpart that the Minister of ORG had approved the transfer of the applicant to GPE , that the competent NORP court had converted his sentence into CARDINAL years\u2019 imprisonment in conformity with NORP law and that he would be eligible for conditional release on DATE at the earliest .","On DATE the ORG made a final decision on the applicant \u2019s transfer to GPE . It stated that , since the applicant \u2019s expulsion had been ordered and he would most probably be expelled to GPE , there were grounds under LAW and LAW for the applicant to serve the remainder of his sentence in GPE .","The applicant appealed against the decision to the Government , stating , inter alia , that he would be serving a longer sentence in GPE and that he would be placed in a \u201c higher security prison \u201d where the conditions would be much more severe than those in NORP prisons .","On DATE the ORG confirmed its decision .","On DATE ORG , stating that it shared the ORG \u2019s conclusion , dismissed the applicant \u2019s appeal .","The applicant was transferred to a NORP prison on DATE .","The applicant was summoned to appear before ORG , sitting as a first - instance court , on DATE . On DATE a single judge decided that the applicant \u2019s sentence was to be converted into DATE imprisonment under NORP law , to be served under a strict prison regime ( fegyh\u00e1z ) . The effect of the latter condition was that he would become eligible for conditional release after having served CARDINAL of the sentence . The applicant appealed against that decision and requested to serve his sentence under a normal prison regime ( b\u00f6rt\u00f6n ) , which would have made him eligible for release on parole at an earlier date . On DATE ORG , sitting as a chamber of CARDINAL judges at second instance , dismissed the appeal . The NORP courts did not make any fresh assessment of the applicant \u2019s guilt but accepted the NORP ORG findings as to the facts of the case .","Section CARDINAL of LAW ( Narkotikastrafflagen ; CARDINAL ) provides that anyone who commits a drugs offence with aggravating circumstances shall be liable to CARDINAL years\u2019 imprisonment . In addition , under LAW ( Lagen om straff f\u00f6r varusmuggling , CARDINAL:CARDINAL ) , which was in force at the material time , the same range of prison sentences applied in respect of drug smuggling with aggravating circumstances . With regard to attempted offences , LAW referred to chapter CARDINAL of LAW ( ORG , FAC ) , section CARDINAL of which stipulates that the punishment for an attempted offence shall not exceed the applicable penalty for a complete offence and shall not be less than imprisonment if the penalty for a complete offence is CARDINAL or more years\u2019 imprisonment .","Pursuant to section CARDINAL of the Term of Imprisonment ( LAW ( NORP om ber\u00e4kning av strafftid m m , CARDINAL ) , ORG determines the expiry date of the prison term for a person who has started serving a sentence . If the sentence exceeds DATE imprisonment , the ORG must also determine the earliest date of conditional release . It further sets the probationary period , which , in accordance with chapter CARDINAL , section CARDINAL , of LAW , corresponds to the remaining portion of the sentence but can not be DATE .","LAW , section CARDINAL , of the Penal Code provides that a person sentenced to imprisonment shall , as a rule , be conditionally released when he or she has served CARDINAL of the sentence .","Under chapter CARDINAL , section CARDINAL , of LAW , if the sentenced person breaches to a significant extent the conditions for serving the sentence , the date of release on parole can be postponed to DATE , but not by DATE on any CARDINAL occasion .","The preparatory work in respect of the latter provision ( ORG reformer av p\u00e5f\u00f6ljdssystemet , CARDINAL ) states that \u201c to a significant extent \u201d means that release may be postponed only for the more flagrant breaches and that a general assessment of whether the inmate has misbehaved is not sufficient . Incidents such as escape or attempts to escape , refusal to work , contact with drugs , drunkenness and threats or violence towards other inmates or a civil servant are examples of cases entailing a postponement of a prisoner \u2019s conditional release . No postponement is to be ordered , however , if the breach results in a criminal indictment .","LAW , sections DATE , of the Penal Code provide that certain restrictions and supervision by a probation officer may be imposed during the probationary period on a person who has been conditionally released . If the person breaches his obligations during that period , he may forfeit all or part of his conditional liberty .","The Execution of Criminal Verdicts ( International Co - operation ) Act ( Lag om internationellt samarbete r\u00f6rande verkst\u00e4llighet av brottm\u00e5lsdom , CARDINAL ) is based , inter alia , on ORG and its LAW . Under the LAW , an appeal lies to the ORG against a decision of the ORG concerning any issue other than the appointment of officially assigned counsel .","The objectives of the DATE LAW , ORG , No . CARDINAL ) , including its DATE LAW ( ETS No . CARDINAL ) , are to develop international co - operation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons . According to the Preamble to LAW , these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society .","LAW enables the transfer of a sentenced person from \u201c the sentencing ORG \u201d to \u201c the administering State \u201d provided , inter alia , that the person in question is a national of the administering State ; that he or she ( or in some instances a legal representative ) consents to the transfer ; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering ORG or would constitute a criminal offence if committed on its territory ; and that the sentencing and administering GPE both agree to the transfer .","LAW ( \u201c Effect of transfer for administering ORG \u201d ) provides :","\u201c CARDINAL . The competent authorities of the administering State shall :","a. NORP continue the enforcement of the sentence immediately or through a court or administrative order , under the conditions set out in DATE , or","b. convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .","The administering ORG , if requested , shall inform the sentencing ORG before the transfer of the sentenced person as to which of these procedures it will follow .","The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions . ... \u201d","LAW ( \u201c Continued enforcement \u201d ) provides :","\u201c CARDINAL . In the case of continued enforcement , the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing ORG .","NORP If , however , this sentence is by its nature or duration incompatible with the law of the administering State , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure shall , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG . \u201d","LAW ( \u201c Conversion of sentence \u201d ) provides :","\u201c CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :","a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;","b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;","c. shall deduct the full period of deprivation of liberty served by the sentenced person ; and","d. shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .","NORP If the conversion procedure takes place after the transfer of the sentenced person , the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure . \u201d","LAW ( \u201c Sentenced persons subject to an expulsion or deportation order \u201d ) provides :","\u201c CARDINAL . Upon being requested by the sentencing ORG , the administering ORG may , subject to the provisions of this LAW , agree to the transfer of a sentenced person without the consent of that person , where the sentence passed on the latter , or an administrative decision consequential to that sentence , includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing ORG once he or she is released from prison .","... \u201d","LAW ( \u201c Temporal application \u201d ) provides :","\u201c This LAW shall be applicable to the enforcement of sentences imposed either before or after its entry into force . \u201d","LAW contains a similar provision on temporal application .","ORG to LAW recalls in paragraph CARDINAL that persons may be expelled only subject to the provisions laid down in LAW No . CARDINAL to LAW .","The Additional Protocol entered into force in respect of GPE on DATE and in respect of GPE on DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5619","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2000,"docname":"RANDALL v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE .","He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .","In DATE the applicant was tried before a jury at ORG on a charge of murdering his girlfriend ( \u201c T. \u201d ) at her home .","The court heard that the police were called to T. \u2019s home in TIME of DATE and found her body in the kitchen . The applicant was lying on the floor with his head resting on her stomach . T. had been stabbed CARDINAL times , most of the wounds being to her left hand . There were CARDINAL deep wounds , one to her face and one to her left breast area .","According to PERSON who carried out the post mortem analysis on behalf of the ORG , either of those wounds was fatal . PERSON also examined stab wounds , CARDINAL in all , found on the applicant \u2019s body . He advised that there was no evidence of defensive injuries either to the applicant \u2019s arms or hands . At the same time , PERSON was unable to determine whether or not the wounds were self - inflicted or inflicted by CARDINAL party .","ORG , a friend of the deceased , testified at the trial that the applicant telephoned her shortly after TIME on DATE and exclaimed that :","\u201c T. \u2019s dead and I \u2019m dead . \u201d","When she arrived at ORG house , the applicant was holding a kitchen knife . He told her :","\u201c I \u2019ve killed T. , I \u2019ve got to kill myself . \u201d","According to CARDINAL police officers who arrived at the scene , the applicant stated :","\u201c Well lads , I \u2019ve done it now but I tell you what , I love her . \u201d","The police recovered CARDINAL blood - stained carving knives from the kitchen , either of which could have caused the injuries to T. and the applicant .","The applicant was taken to a hospital where he underwent lengthy surgery for his injuries . He remained in intensive care for a period of time and was finally discharged on DATE . He was taken directly to a police station . Although a doctor had expressed the opinion on DATE that the applicant was not fit to be interviewed , a contrary opinion was given by another doctor who examined him on TIME of DATE and found that , although in pain , he was fit to be interviewed . The applicant was subsequently interviewed between TIME and TIME on DATE .","The applicant was cautioned as follows in the presence of his solicitor :","\u201c You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . \u201d","The applicant \u2019s solicitor advised him not to answer police questions and referred to the pain which the applicant was suffering as well as his lack of sleep . On the strength of that advice the applicant made no comment to the questions put to him during the interview . The questions centred on his presence at the deceased \u2019s house , the presence of blood on his clothes and body , his being in possession of knives when the police arrived at the scene and the injuries which he had sustained . He was also questioned about the defence injuries to the deceased \u2019s body and the absence of any defence injuries to his own body .","On DATE the applicant was charged with ORG \u2019s murder .","At his trial the applicant did not dispute that he had stabbed T. However he pleaded that he had acted in self - defence . In the alternative , he relied on the defence of diminished responsibility under the terms of section CARDINAL(CARDINAL ) of the Homicide Act DATE , as well as that of provocation .","As to the latter defences , he relied on the testimony of Dr PERSON , a clinical psychologist , and PERSON and PERSON , both consultant psychiatrists . PERSON stated that , in his opinion , the applicant was suffering from a mild to moderate depressive illness at the time of the incident . In PERSON opinion the applicant was suffering from a moderate depressive illness at the time . They both expressed the view that the applicant was suffering from an abnormality of mind sufficient to impair substantially his mental responsibility . As to the defence of provocation , Dr ORG testified that if the court concluded that the applicant had not got over his mother \u2019s death and that his condition arose out of inadequacies in his personality , and if it were accepted that the applicant was suffering from mild to moderate depressive illness at the time of the offence , that would be relevant to explaining the applicant \u2019s reaction and his susceptibility to some types of alleged provocation . PERSON observed that the applicant had real difficulty in processing multiple sources of information , a failing which could be linked to possible brain damage which the applicant sustained in a traffic accident when he was young . The other doctors had earlier stated that their conclusions would be reinforced by evidence of brain damage .","In connection with his plea of self - defence the applicant told the jury that ORG had become argumentative when they went back to her home after TIME spent at a club . T. suddenly began to stab him with a kitchen knife and he defended himself with a fork . T. then attacked him with a bigger knife . He stated in his testimony that he must have taken out a knife from the kitchen drawer during this time . He tried to wrestle her to the floor , but she continued to stab him . He must have lashed out and caused the injury to her face , but did not remember doing so . Eventually she stabbed herself in the chest , telling him that she loved him . He then pulled the knife out of her body . The witness , PERSON , arrived at some stage and he had to smash a glass panel to let her into the house . He told her : \u201c I think T. is dead . I love her , I \u2019m going with her . \u201d With those words , he stabbed himself in the throat and on the chest and lay down on the kitchen floor with his head resting on T. \u2019s stomach .","When cross - examined as to why he did not give this account of the incident to the police on DATE during interview , the applicant replied that he wanted to answer the questions put to him but :","\u201c [ that his ] solicitor said I was in no condition to answer . I would have tried my best to answer the questions . I understood what they said . It was fuzzy to me . My recollection was I could n\u2019t recall , but it came back to me in flashbacks . I could n\u2019t remember everything . ... I had to keep trying to remember . I tried to remember the best I could . ... I must have been responsible for it , cos she would n\u2019t be dead . \u201d","When asked by prosecution counsel what he had remembered on DATE of the interview , the applicant replied that he knew that T. had attacked him , that she had deliberately plunged a knife into him and that he had reacted as he did in self - defence .","He was then asked whether he could have told the police about these matters on TIME of the interview . The applicant replied in the affirmative adding :","\u201c ... I was advised not to say anything . On ill health , because I was so drugged up from the hospital . Like , I was hurting bad \u2013 and they knew I was hurting bad . \u201d","In the course of the trial , the prosecution invited the judge to leave the jury with the option of drawing adverse inferences from the applicant \u2019s silence during police interview on the ground that the applicant \u2019s account of the incident had been fabricated before interview and that he knew that it would not withstand police questioning .","Counsel for the applicant , with reference to ORG judgment in NORP v. ORG ( [ DATE ] CARDINAL Criminal Appeal Reports , p. CARDINAL ) contended that adverse inferences could only be drawn from an accused \u2019s silence under caution when the failure to mention facts in interview which are later relied on at the trial can only be explained in terms of their fabrication after the interview .","The trial judge rejected the applicant \u2019s submission . At the close of the trial the judge in his summing up reminded the jury of the answers given by the applicant under cross - examination . He directed the jury in the following terms :","\u201c Those were questions asked by [ prosecution counsel ] in cross - examination , members of the jury . You will remember that [ counsel ] was asking them to establish what the defendant said was his state of knowledge at the interview . He was telling you in evidence that at the interview he knew full well that [ T. ] had struck him the first blow , was the aggressor . He knew full well that she had caused a situation where he was acting in self defence . He knew full well that , in the end , she had plunged that knife deliberately into her chest .","Now those are all matters which you heard about in evidence , but which the officers in the interview ... did not hear at all , because when they asked questions directed to these matters the answer was no comment .","You have been rightly told as to what the law is in relation to inferences that you can draw . I told you TIME that I would come to the law on this subject after I had dealt with the answers the defendant had given in his evidence before you as to why he did not mention those facts at the time of the interview . I now , therefore , give you this direction in law . As it is a direction in law , you must take the law from me . The facts , of course , are for you .","The defendant , as part of his defence , has relied on facts which he alleges . Those facts include the fact that [ T. ] attacked him and struck him first , and that what he did was only in self defence . She then plunged the knife into herself . He admits that he did not mention those facts when he was questioned under caution , before being charged with the offence .","The prosecution case is in the circumstances , when he was questioned , he could reasonably have been expected then to mention those facts . If you are sure that he did fail to mention them when he was questioned , and he accepts that , then you decide whether , in the circumstances , they were facts which he could reasonably have been expected then to mention . If they were , the law is that you may draw such inferences as appear proper from his failure to mention these matters at that time .","Failure to mention such a fact can not on its own prove guilt but , depending on the circumstances , you may hold it against him in deciding whether he is guilty . That is , take it into account as some additional support for the prosecution case . You are not bound to do so . It is for you to decide whether it is fair to do so .","There is evidence before you , on the basis of which [ defence counsel ] invites you not to hold it against him that he failed to mention these facts . That evidence I have just reminded you of . It is evidence as to the state of his health at the time , the pain that he was experiencing and that he was acting on legal advice . If you think that that amounts to a reason why you should not hold the defendant \u2019s failure against him , do not do so . On the other hand , if it does not , in your judgment , provide an adequate explanation , or you are sure that the real reason for his failure to mention these facts was that he had no answer , or none that would stand up to cross - examination , then you may hold the adverse inference against him .","Let me warn you as to CARDINAL inference which I direct you is one that you may not draw against him . You may not draw against him an inference that his account was only made up after the interview , and that it is therefore a post interview fabrication . That is because in his trial he was cross - examined . He said at the interview he was fully aware , when the police officers were questioning him , that T. had attacked him , that she had plunged the knife into herself , and that he had been acting only in self defence .","When he gave those answers in the witness box , the prosecution did not challenge that account . They accepted it . The inference they invite you to draw was not that it was made up after the interview . It is a different one . The inference they invite you to draw is that the account was false , and had already been made up on DATE of the interview . But , on DATE , the defendant was simply not prepared to expose the account to critical questioning and examination , which he feared would expose its falsity , in that it would not stand up to questioning and cross - examination at all .","That is the law in relation to inferences . You are entitled to look at the situation in that light , and come to the conclusion whether you will draw inferences against the defendant , or whether you will not . \u201d","In a separate direction the trial judge also directed the jury that if they were to find the applicant guilty of manslaughter by reason of his diminished responsibility at the time of the offence they had to be satisfied that the applicant was suffering from an abnormality of mind , that that abnormality was caused or induced by disease or injury and that the abnormality \u201c substantially impaired \u201d the applicant \u2019s responsibility for his act . The judge stated with reference to the expert medical witnesses called by the applicant and to the statutory requirements of section CARDINAL(CARDINAL ) of the Homicide Act DATE :","\u201c You will probably be quite satisfied that the defence has established an abnormality of mind , has established that it was caused by disease . It will be the third element that you will move on to . Abnormality of mind proved to the necessary standard by the defendant . Abnormality induced by disease , the disease of a depressive illness , again proved .","So you would have to go on to the third question , which is whether the defendant \u2019s mental responsibility was or was not substantially impaired by that abnormality of mind . You will want to consider the views of the experts on that question . But as you have heard , and as is the law , the decision as to whether or not his responsibility was substantially impaired is a matter for you , the jury . \u201d","The trial judge subsequently advised the jury on the issue of \u201c expert evidence \u201d and the approach which they should take to the evidence given by the medical experts called by the applicant . He noted that PERSON had stated under cross - examination that even if all CARDINAL of the requirements contained in the Homicide Act DATE were satisfied , his view depended on what he had been actually told by the applicant after the commission of the offence . The trial judge concluded his summing up by stating that the decision as to whether or not the applicant \u2019s responsibility was \u201c substantially impaired \u201d was a matter for the jury to decide and that they were not bound by what the medical witnesses had said . The jury was told that if there was no evidence to cast doubt on the medical evidence , then they must accept that evidence . The judge then dealt with the issue as to what the defendant had said to the doctors on the basis on which they had formed an opinion . He reminded the jury that PERSON had acknowledged that if that evidence was undermined , the basis for his opinion would disappear .","On DATE the applicant was convicted of murder . He was given a mandatory life sentence .","On DATE the Single Judge refused the applicant \u2019s application for leave to appeal against conviction .","The applicant \u2019s renewed application was heard by ORG ) . In his perfected grounds of appeal , the applicant asserted , inter alia , that the trial judge had misdirected the jury by leaving them the option of drawing an adverse inference in circumstances where the prosecution had not alleged that his account at the trial had not been recently fabricated . He maintained in the alternative that the trial judge was wrong to leave the jury the option of drawing adverse inferences in circumstances where the applicant had given unchallenged evidence that he could have given his account of the incident in interview .","The applicant also maintained before ORG that the trial judge had misdirected the jury as regards the medical evidence which supported his defence of diminished responsibility . He referred in particular to his concerns that the judge \u2019s first directions on this matter were contradictory and that the judge had failed to say what evidence pointed against the medical experts\u2019 opinion .","ORG dismissed the applicant \u2019s appeal in its judgment delivered on DATE . Lord Justice PERSON stated with respect to the issue of adverse inference :","\u201c The third suggested ground of appeal arises CARDINAL of the CARDINAL Act with regard to inferences that the jury might draw from the \u2018 No comment\u2019 answers in interview . In his summing - up the learned judge reminded the jury of what had happened and in particular of the fact that the defendant \u2019s solicitor had advised him not to answer questions at that stage . He referred also to the parts of the evidence where the defendant had been asked about this , and in particular he quoted the defendant \u2019s answers which were as follows : \u2018 My solicitor said I was in no condition to answer . I would have tried my best to answer the questions . I understood what they said . It was fuzzy to me . My recollection was I could n\u2019t recall , but it came back to me in flashbacks . I could n\u2019t remember everything.\u2019 He said , \u2018 I had to keep trying to remember . I tried to remember the best I could.\u2019 He tried to work out what went on .","He was also asked : \u2018 You had the ability DATE to say all of those things to the police , did you not?\u2019 He said he could have said them to the police . He was asked , \u2018 You could have said those things?\u2019 , and said , \u2018 But I was advised not to say anything . On ill health , because I was so drugged up from the hospital . Like , I was hurting bad \u2013 and they knew I was hurting bad\u2019 .","Then the learned judge proceeded to consider the question of inferences , and he gave the jury an extended direction ... He concluded as follows :","\u2018 When he gave those answers in the witness box , the prosecution did not challenge that account . They accepted it . The inference that [ they ] invite you to draw was not that it was made up after the interview . It is a different one . The inference they invite you to draw is that the account was false , and had already been made up on DATE of the interview . But , on DATE , the defendant was simply not prepared to expose the account to critical questioning and information , which he feared would expose its falsity , in that it would not stand up to questioning and cross - examination at all.\u2019","It was , in other words , not put to the defendant that he had invented or fabricated his account after the interview .","The submission made to us , as it was made to the learned judge in the course of the trial , was that no inference was possible and therefore the jury should have been directed , since the prosecution did not rely upon that inference , that no inference should be drawn by them against the defendant . This had been the subject of a ruling on DATE before speeches began . The judge ruled that it was unnecessary for the defence to call the solicitor who had given the advice because there was no suggestion of recent fabrication , meaning post - interview intervention .","We would hold that the submission which [ prosecution counsel ] made , and which the learned judge upheld , was correct . The inference described by the learned judge to the jury was a possible inference for the jury to draw . It would mean that the defendant already had it in mind to say that he had acted in self - defence , and the question would remain , if that was in his mind , why should he not say so ? We therefore reject that suggested ground of appeal also . \u201d","As to the issue of how the trial judge dealt with the applicant \u2019s defence of diminished responsibility , Lord Justice PERSON stated that he had no hesitation in holding that the trial judge \u2019s directions on the matter were sufficient since he had made it clear to the jury that the doctors had agreed at the trial that their opinions were based on what the applicant had told them after the offence about his mental condition . It was in that context that the jury had to consider whether or not the applicant \u2019s account to them was truthful .","Section CARDINAL of ORG LAW DATE provides that :","\u201c CARDINAL . Where in any proceedings against a person for an offence , evidence is given that the accused \u2013","( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or","( b ) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .","Where this subsection applies ...","( c ) the court , in determining whether there is a case to answer ; and","( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .","Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . \u201d","Section CARDINAL(CARDINAL ) and ( CARDINAL ) provides :","\u201c ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .","( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . \u201d","Section CARDINAL ) adds that :","\u201c A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... \u201d","Further details of the law and practice governing the interpretation of these provisions are set out in the ORG v. the GPE judgment of CARDINAL DATE ( application no . CARDINAL , to be published in the ORG \u2019s official reports ) .","\u201c Where a person kills or is a party to a killing of another , he shall not be convicted of murder if he was suffering from such abnormality of mind ( whether arising from a condition of arrested development or retarded development of mind or any inherent causes or induced by disease or injury ) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68707","languageisocode":"ENG","respondent":"FIN","branch":"ADMISSIBILITY","date":2005,"docname":"JARVI-ERISTYS OY v. FINLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , ORG , is a NORP limited liability company . Before the ORG it was represented by PERSON , a lawyer practising in PERSON . The respondent Government were represented by their Agent , PERSON , Director in ORG .","The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .","In DATE the applicant bought QUANTITY of copper in GPE and paid for it in cash with GPE dollars . During the customs clearance the NORP customs authorities found that the information noted in a bill of consignment was false insofar as the identity of the seller company and the buyer company were concerned . Furthermore , a certain other company was mentioned in the false documents as a forwarding company . The signature of FAC , operational manager of that company , had been forged in those documents . None of these companies had anything to do with the freight . It also appeared that the seller did not have a licence to sell the copper even though such a licence was obligatory when exporting copper from GPE .","The NORP customs issued a prohibition of transfer of the copper and reported the case to the police . It appears that in DATE the NORP authorities announced that the copper had been stolen in GPE . The owner of the applicant company was suspected of aggravated concealment of illegally obtained goods and of having forged the bill of consignment .","On DATE the NORP customs authorities informed the NORP police that the NORP company which purported to sell the copper to the applicant did not exist . The NORP managing director who had supposedly signed the contract and the company from which the NORP seller had purported to buy the copper did not exist , either . As the copper had not been sold legally in GPE and as it had been illegally exported to GPE , the NORP authorities claimed that GPE was its legal owner and that it had to be returned to GPE .","By a letter of DATE , Inspector PERSON from LOC informed the NORP customs that according to the pre - trial investigation carried out into the matter , and on the basis of reports obtained from GPE concerning the identification of the copper , GPE was the legal owner of the copper . He stated that there were no obstacles on the part of the police to returning the copper to its legal owner . The applicant argued that the letter had the character of a decision . The Government argued that the purpose of the letter was to communicate information to the custom authorities .","On DATE , after the pre - trial investigation had been completed , the matter was transferred to a public prosecutor for consideration of charges . On DATE the public prosecutor decided not to prosecute the owner of the applicant company as there was no evidence supporting the allegations that the copper had been stolen or that he had known that the bill of consignment had been forged .","Meanwhile , in DATE and DATE the applicant company instituted civil proceedings before ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) against ORG and GPE , respectively , requesting that the prohibition of transfer be revoked and that ORG confirm that the applicant company was the legal owner of the copper . In its decision of DATE ORG found that it was not competent to examine the request that the prohibition of transfer be revoked . As to the ownership issue ORG considered , taking into account that no one had ever claimed that ORG was the legal owner of the copper , that it could not be considered a party to the proceedings . Thus , the claims made against ORG could not be examined . Insofar as GPE had claimed the ownership of the copper but had not made any submissions to ORG , the court found that it had no competence to examine an issue concerning a foreign ORG 's ownership rights , being prevented by the international principles concerning the foreign sovereign states ' immunities . It appears that the applicant company appealed and that on DATE ORG ( hovioikeus , hovr\u00e4tten ) upheld the decision .","Meanwhile on DATE , the applicant company requested that the customs authorities hand over the copper . DATE the forwarding agency informed the applicant company that the copper had been sold on to a NORP company by GPE in co - operation with the NORP customs .","On DATE , the applicant company instituted civil proceedings for public - sector liability for damages under LAW ( vahingonkorvauslaki ; skadest\u00e5ndslagen ; CARDINAL ) against ORG , claiming the amount of MONEY ( equivalent to ORG CARDINAL ) as compensation for the lost copper . It argued that the ORG was liable for the damage as a police officer , PERSON , when acting as public authority , had overstepped his powers in ordering that the copper be returned to GPE even though there was no proof that it had been stolen .","On DATE the ORG rejected the applicant 's claims , finding that the police officer in question had been entitled to agree with the findings of the NORP authorities that the copper had been stolen , having regard to the fact that the bill of consignment was forged , that the purchase price amounted to CARDINAL of the copper 's real value and was paid in cash , that the company 's representative did not know the identity of the seller 's representatives , that the driver had been instructed to visit the customs authorities at a precise time and that the applicant company 's representatives had not contacted the seller to sort things out following the prohibition of transfer . These circumstances warranted the conclusion that there was something shady and secret about the purchase . The wording of the police officer 's communication to the customs indicating that there was no obstacle to returning the copper to GPE did not , however , decide the question of the ownership of the copper . As the copper had most probably been stolen in GPE , the applicant company had , in accordance with LAW ( rikoslain voimaanpanemisesta annettu asetus , f\u00f6rordningen om inf\u00f6rande av strafflagen ) , been obliged to return the copper to its legal owner without compensation . In accordance with the said provision , the applicant was entitled to seek compensation from the seller of the copper or from the person who had stolen it . Insofar as the ORG had argued that the applicant company , prior to commencing an action for compensation , should have appealed against the customs ' decision with a view to minimising any possible damage , ORG noted that the applicant had no interest in demanding a written decision as to the refusal to customs clear the copper delivery and to appeal against such a decision , as the company had considered that the customs ' actions so far had been justified .","On DATE ORG upheld ORG judgment .","On DATE ORG refused the applicant leave to appeal .","Section CARDINAL ( CARDINAL\/CARDINAL ) of LAW reads , in so far as relevant , as follows :","\u201c If a dispute arises concerning an item that has been stolen , ... from its previous holder , and if the one who has become the holder of the item proves that he received it in good faith , the holder of the item in dispute shall be obliged to hand it over without compensation and may seek compensation from the person he received the item from or from the person through whose offence he received it . \u201d","According to the amended section CARDINAL ( CARDINAL\/CARDINAL ; as in force at the relevant time ) of LAW ( tullilaki , tullagen ) , a decision of the district customs office could be appealed against to ORG . According to section CARDINAL of LAW , unless otherwise provided , a decision of ORG may be appealed against to ORG in accordance with the provisions of ORG ( muutoksenhausta hallintoasioissa annettu laki , lagen om \u00e4ndringss\u00f6kande i f\u00f6rvaltnings\u00e4renden ; CARDINAL\/CARDINAL ) , as in force at the relevant time .","According to section CARDINAL ( f ) of LAW ) , as in force at the time , a person had the right of possession of goods if he was their importer , exporter or owner or otherwise had possession or control over the goods .","According to section CARDINAL ( CARDINAL ) of LAW ( CARDINAL\/CARDINAL ; tulliasetus , tullf\u00f6rordningen ) , as in force at the time , the customs authorities had to ensure , to the extent possible , that the goods were delivered to the person who has a lawful right of possession in respect of them .","According to chapter CARDINAL , section CARDINAL of LAW a person , who has suffered injury or damage owing to an erroneous decision by a state or municipal authority and without an acceptable reason has failed to appeal against the said decision , shall not be entitled to damages from the state or the municipality for injury or damage that could have been avoided by appealing ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23738","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2004,"docname":"SARDIN v. RUSSIA","importance":1,"conclusion":"Inadmissible","judges":"Peer Lorenzen","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .","The facts of the case , as submitted by the applicant , may be summarised as follows .","DATE and DATE the applicant performed military service near the GPE nuclear tests site . On CARDINAL DATE ORG of GPE issued the applicant with a certificate confirming that he had been exposed to radioactive emissions during his military service .","In DATE and DATE the applicant unsuccessfully applied to various NORP authorities to be granted the status of a victim of the GPE nuclear tests .","In DATE the applicant lodged a civil action against ORG of ORG ( \u201c the Agency \u201d ) . He challenged the refusal of the ORG to issue him with a certificate for citizens who had been exposed to radioactive emissions as a result of nuclear tests on the GPE test site ( \u201c the GPE certificate \u201d ) .","On DATE the ORG of GPE granted the applicant \u2019s action and ordered the ORG to provide him with the GPE certificate confirming his entitlement to certain social benefits . The ORG did not appeal against the judgment and it became final on DATE .","On DATE the court bailiffs opened enforcement proceedings .","The ORG did not execute the judgment and requested the NORP Regional prosecutor \u2019s office to bring an application for supervisory review .","On DATE the ORG prosecutor \u2019s office ordered the court bailiffs to suspend the enforcement proceedings and lodged an application for supervisory review ( \u043f\u0440\u043e\u0442\u0435\u0441\u0442 \u0432 \u043f\u043e\u0440\u044f\u0434\u043a\u0435 \u043d\u0430\u0434\u0437\u043e\u0440\u0430 ) with the Presidium of ORG . The prosecutor submitted that the area where the applicant had served was not in the NORP list of areas that had suffered from radioactive emissions and the NORP legislation could not be applied by analogy .","On DATE the applicant received a court summons advising him that the hearing on the prosecutor \u2019s complaint would take place on DATE . The applicant submits that on DATE he filed written observations , but they were not accepted and he was promised that he would be given time to make oral submissions .","On DATE the ORG of ORG held a hearing . According to the applicant , his representatives were not given an opportunity to speak before the court and the written memorandum was only accepted by the court registrar after the hearing finished . The Presidium of ORG , by way of supervisory review , quashed the judgment of DATE on procedural and substantive grounds and remitted the case for a new examination .","On DATE ORG of GPE made a new determination of the applicant \u2019s action against the ORG and dismissed it as having no grounds in the domestic law .","On DATE ORG of ORG upheld , on the applicant \u2019s appeal , the judgment of DATE .","The PERSON \u201c On the social protection of citizens who had been exposed to radioactive emissions as a result of nuclear tests on the GPE test site \u201d ( no . CARDINAL of CARDINAL DATE ) , which was in force at the material time , provided that certain benefits and compensation available to the GPE victims should be extended to those citizens who had lived in the area surrounding the GPE test site and their descendants of the first and second generations . Articles CARDINAL and CARDINAL specified that the scope of the benefits and compensations should be determined by reference to a person \u2019s exposure to radioactive emissions . These benefits and privileges included , in particular , free medical treatment , free medical insurance , housing maintenance subsidies , special payments to offset the loss of potential earnings , preferential treatment under labour laws , etc .","Under LAW certificates were the documents confirming a person \u2019s entitlement to benefits and compensations set out in the LAW ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-110491","languageisocode":"ENG","respondent":"LVA","branch":"CHAMBER","date":2012,"docname":"CASE OF J.L. v. LATVIA","importance":3,"conclusion":"Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)","judges":"Corneliu B\u00eersan;Egbert Myjer;Ineta Ziemele;J\u00e1n \u0160ikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria","text":["The applicant was born in DATE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant \u2019s wife \u2019s car was stolen . PERSON contacted the applicant and asked for money for return of the car . The applicant reported this to the police and on DATE , under instructions from police officers , he gave the money to PERSON and recorded the conversation on audio tape . On DATE PERSON was arrested . On DATE PERSON was charged with theft and extortion , mainly on the basis of the aforementioned evidence . On DATE the criminal case was referred to the court .","Meanwhile , on DATE ORG Office brought charges against the applicant concerning repeated misappropriation .","On DATE the applicant entered a plea of guilty and confirmed that the examination of evidence was not necessary . He explicitly refused the assistance of defence counsel . On DATE the criminal case was referred to the court .","CARDINAL On DATE , during the hearing , the applicant confirmed that defence counsel and examination of witnesses were not necessary . ORG found the applicant guilty and sentenced him to DATE and QUANTITY months\u2019 imprisonment . The applicant was taken to ORG from the courtroom .","On DATE ORG examined the applicant \u2019s appeal and upheld the judgment of the lower court . According to the records of the hearing the applicant said in his statement to the court that he had been beaten up on his way to the prison and that it had happened because of his previous cooperation with the police .","NORP In his appeal on points of law of DATE the applicant complained about the severity of the sentence . He also mentioned his cooperation with police , and that as a result he had suffered bodily injuries in prison .","On DATE the applicant asked the Prosecutor General to reduce his final sentence . He mentioned , inter alia , that because of his cooperation with the police he had encountered problems in prison , specifically that his nose had been broken and he had also sustained other body injuries . In DATE he sent a similar request to ORG .","On DATE ORG dismissed the applicant \u2019s appeal on points of law .","On DATE , at the request of ORG , ORG reduced the applicant \u2019s sentence by DATE , owing to the fact that he had helped to disclose a serious criminal offence .","On DATE the applicant was released from prison after serving his sentence .","The applicant arrived at FAC on DATE and was placed in a filtering cell with CARDINAL other inmates .","According to the applicant , during TIME CARDINAL DATE he was physically and sexually assaulted by his fellow inmates : his nose was broken and he was raped . He complained about this to the Central Prison doctor , who rendered medical assistance but refused to draw up a medical report in this connection ; similarly , a prison guard refused to initiate an investigation into the assault .","On DATE he was transferred to cell DATE , which provided services to the prison canteen .","According to a report drawn up by the head of the medical unit of ORG , on DATE the applicant was examined by FAC doctor , who recorded the applicant \u2019s complaints about inflammation of the duodenum . On DATE the applicant had a prophylactic examination by the same doctor , who assessed him as in good health and fit for work in the prison canteen .","On DATE the applicant asked ORG to transfer him to specialised detention facilities in FAC , arguing that he had been receiving threats from those he had testified against .","On DATE an officer of ORG of ORG met the applicant . According to the report drawn up by the officer during the meeting the applicant complained about possible threats , in that the people he had testified against were known to some of his fellow inmates . The applicant denied having any problems in LOC where he was employed in the canteen .","Further , according to the same report , in a telephone conversation on DATE a police officer in charge of PERSON \u2019s criminal case confirmed that the applicant was cooperating , and acknowledged that the applicant might therefore encounter problems in prison , but he refused to confirm this in writing . With the agreement of the deputy head of ORG it was decided to transfer the applicant to ORG . The report also stated that on DATE a representative of ORG had advised the head of ORG by telephone to take the applicant \u201c under control \u201d .","On DATE the applicant was transferred to FAC .","On DATE the applicant complained to the ORG ( ORG at that time ) that he had been ill - treated on DATE in FAC . At the ORG \u2019s request in DATE ORG requested information from ORG about the applicant \u2019s situation there .","On DATE the head of ORG reported that when the applicant arrived his personal file did not contain any indication that he required isolation from other inmates , and that he had not raised any complaints about physical ill - treatment while detained in FAC . It was also noted that according to the ORG internal classification the applicant was \u201c kreisais \u201d ( someone who had allegedly , inter alia , cooperated with the law enforcement authorities ) .","On DATE the head of FAC informed ORG that the applicant had never complained about the incident of DATE . The letter contained statements from CARDINAL of the CARDINAL fellow inmates with whom the applicant had been placed on DATE ; they all denied any ill - treatment of the applicant .","Relying on the above reports , on DATE ORG informed ORG that there was no information about the applicant \u2019s ill - treatment .","NORP In response to the request of ORG , on DATE ORG stated that they had not received any complaints from the applicant concerning ill - treatment in LOC on DATE or in any other prison . The letter confirmed that by virtue of section CARDINAL of LAW would have decided on the opening of criminal proceedings if it had received a complaint from the applicant of physical or sexual ill - treatment or a refusal by the prison administration to review the complaint .","Aiming to ensure that the applicant attended PERSON \u2019s trial , on DATE the prosecutor in charge asked ORG to transfer the applicant from ORG to R\u012bga . In her letter the prosecutor noted that PERSON had been detained in LOC and that his criminal case contained compelling information that PERSON had previously intimidated the applicant . Therefore ORG was asked to transfer the applicant to the specialised detention facilities in LOC . The prosecutor referred to a report addressed to ORG which confirmed the attempt to intimidate the applicant .","It appears that on CARDINAL occasions the applicant had been transferred to FAC in GPE in order to attend PERSON \u2019s trial .","In DATE and DATE ORG dismissed the applicant \u2019s requests to allow him to continue serving the rest of his sentence in LOC .","Sections CARDINAL and CARDINAL of the Criminal Law provides criminal sanctions for rape and other forms of sexual assault , the severity of sanctions varying according to the qualification of the offence .","Section CARDINAL of the Law of Criminal Procedure provides that the official authorised to perform criminal proceedings has a duty in each case where the reason and grounds for initiating criminal proceedings have become known , to initiate proceedings and to direct them towards fair regulation of the criminal law as set out in LAW .","By virtue of section CARDINAL parts CARDINAL and CARDINAL , CARDINAL reason for initiating criminal proceedings is information which indicates that a criminal offence has been committed , if such information has been submitted to , or acquired by , an investigating institution ( izmekl\u0113\u0161anas iest\u0101de ) , ORG , or the court . The information referred to above may be submitted , inter alia , by a person who has suffered as a result of a criminal offence ; by controlling and supervising institutions ; by medical practitioners or institutions ; or by any natural or legal person regarding possible criminal offences from which that person has not directly suffered .","Section CARDINAL provides that criminal proceedings may be initiated if there is an actual possibility ( re\u0101la iesp\u0113ja ) that a criminal offence has been committed . Criminal proceedings may also be initiated if the information received described circumstances relating to a criminal offence which may have taken place and the examination of such information is possible only by methods applicable to criminal proceedings .","Section CARDINAL sets out the responsibility for instituting investigations and those of ORG and the courts in the initiation of criminal proceedings . In particular , an investigator has a duty to initiate criminal proceedings , within his or her competence , if any of the factors referred to in LAW of this PERSON are present . A public prosecutor may send materials for examination to an investigating institution or commence criminal proceedings within the scope of his or her competence , in connection with any reason referred to in section CARDINAL of this PERSON . Besides , a decision of a public prosecutor regarding the initiation of criminal proceedings , and the materials related to such decision , shall immediately be sent to an investigating institution , except for particular cases referred to in LAW , paragraph CARDINAL of this PERSON .","By virtue of sections CARDINAL and CARDINAL the ORG shall carry out pre - trial criminal proceedings and investigate criminal offences committed by detained or convicted persons , or by employees of ORG in places of imprisonment .","According to part CARDINAL of the transitional provisions the terms izzi\u0146as iest\u0101de ( institution of an inquiry ) and izzi\u0146as izdar\u012bt\u0101js ( person presiding over an inquiry ) used in other legal enactments shall hereinafter be understood as the terms izmekl\u0113\u0161anas iest\u0101de ( investigating institution ) and izmekl\u0113t\u0101js ( investigator ) .","According to section CARDINAL , an administrative act is a legal instrument issued by an institution in an area of public law . It further specifies that decisions regarding , inter alia , criminal proceedings and court adjudications , are not administrative acts .","The other relevant parts of ORG as applicable at the material time concerning the right to challenge administrative acts and actions of public authorities are summarised in PERSON v GPE ; no . CARDINAL , \u00a7 \u00a7 DATE , DATE , not yet final .","The relevant provisions of the PERSON on ORG applicable at the material time are summarised in PERSON v. GPE , no . GPE , \u00a7 DATE , DATE . In particular , according to section CARDINAL a prosecutor shall supervise the execution of sentences of deprivation of liberty and the places of that detention .","Section CARDINAL provides that a prosecutor shall , in accordance with the procedures prescribed by law , carry out an examination if the information received contains assertions regarding either a crime or violation of the rights and lawful interests of , inter alia , detainees .","According to section CARDINAL paragraph CARDINAL ORG is an institution of an inquiry ( izzi\u0146as iest\u0101de ) in criminal proceedings instituted to investigate offences committed by detained or convicted persons . By virtue of section CARDINAL paragraph CARDINAL the head of ORG shall have the power to launch an investigation in such criminal proceedings .","According to section CARDINAL the special protection measures specified in this law are ensured by the following institutions : a specially authorised division of ORG ; a specially authorised department of ORG and at the place of imprisonment DATE a specially authorised division of the place of imprisonment , as well as other persons performing investigative operations , if , in accordance with the instructions of ORG , it is necessary to ensure special protection .","According to section CARDINAL the reasons of applying special protection shall be an actual threat to the life , health or other legal interests of a person , expressed imminent threats or other sufficient grounds indicating that the danger may be imminent owing to a person \u2019s participation in criminal proceedings . The special protection shall be appplied based on either a written request of a person testifying in criminal proceedings and a proposal of the investigating authority ; or the initiative of a court , if a reason for applying special protection has arisen during the course of adjudication ; or a written submission of another person to whom the special protection has been assigned .","The report of CARDINAL DATE to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( \u201c the ORG \u201d ) from CARDINAL to CARDINAL DATE notes the following :","\u201c DATE . During the DATE visit , the delegation examined several internal investigation files on inquiries conducted by ORG into serious incidents of inter - prisoner violence at FAC and FAC . The delegation also had consultations with the competent prosecutor in R\u012bga .","It came to light that , in several cases , no criminal investigations had been initiated , despite the fact that medical evidence consistent with allegations of inter - prisoner violence was available . In this connection , the delegation was informed that , as a rule , instances of inter - prisoner violence were only reported to the prosecutor if the victim made explicit allegations to this effect in his written statement to ORG . In this connection it appeared to be immaterial whether or not the prisoner concerned had previously made such allegations to the doctor and the allegations had been recorded in his medical file .","It is also of concern that , even when the prosecutor had become aware of serious cases of inter - prisoner violence , he had not always initiated investigation not taken a formal reasoned decision on the matter . In fact , ORG investigation file was simply returned to the prison , without any record being kept that the prosecutor had examined the case .","The ORG recommends that the existing procedures be reviewed in order to ensure that whenever injuries are recorded by a doctor which are consistent with allegations of inter - prisoner violence , the matter is immediately brought to the attention of the relevant prosecutor and a preliminary investigation is initiated by him .","More generally , the ORG calls upon the NORP authorities to develop strategies with a view to addressing the problem of inter - prisoner violence in the establishments visited ( and , as appropriate , in other prisons in GPE ) .","In the light of the above , the ORG calls upon the NORP authorities to take immediate steps to review throughout the prison system the role played by ORG , in the light of the remarks made above ... .","In particular , steps should be taken to ensure that :","- criminal investigations into instances of ill - treatment by staff as well as inter - prisoner violence are no longer carried out by ORG . Such investigations should be conducted by a body which is independent of the establishment concerned , and preferably of the prison system as a whole .","- prisoners are allocated \/ transferred to cells under the responsibility of the Director of the establishment concerned \u201d .","...","At FAC , neither the complement of qualified nursing staff nor the psychiatric \/ psychological services had been strengthened , despite the specific recommendations made after the DATE visit and reiterated after DATE visit . ....","In the light of the above , the ORG reiterates its recommendation that steps be taken , as a matter of priority , to ensure that :","- the complement of qualified nursing staff at FAC and FAC is increased ;","...","- every newly - arrived prisoner is properly interviewed and physically examined by a medical doctor ( or a fully qualified nurse reporting to a doctor ) as soon as possible after his admission to FAC ; save for exceptional circumstances , the interview \/ examination should be carried out on DATE of admission ;","...","DATE . In both establishments ( including ORG ) , the examination of medical files revealed that the injuries observed ( upon admission or after violent incidents within the prison ) were frequently not recorded in detail , and that no additional information was given as to the causes of the injuries sustained .","...","The ORG must therefore reiterate its recommendation that steps be taken at FAC and FAC ( as well as in other prison establishments in GPE ) to ensure that the record drawn up after a medical examination of a prisoner , on arrival or after a violent incident within the prison , contains :","( i ) a full account of statements made by the prisoner concerned which are relevant to the medical examination , including any allegations of ill - treatment made by him ;","( ii ) a full account of the objective medical findings based on a thorough examination ;","( iii ) the doctor \u2019s conclusions in the light of ( i ) and ( ii ) . In his conclusions , the doctor should indicate the degree of consistency between allegations made and the objective medical findings ; these conclusions should be made available on request to the prisoner concerned and his lawyer .","Further , whenever injuries are recorded by a doctor which are consistent with allegations of ill - treatment made by a prisoner , the record should be immediately brought to the attention of the relevant prosecutor ( see also paragraph CARDINAL ) \u201d .","In response to the above report ORG referred to an instruction of DATE adopted by ORG . According to the instruction , in case there has been an incident of ill - treatment in a prison establishment , the prison doctor has to examine the detainee and to inform the administration of the prison . The latter has to inform the ORG \u2019s office and carry out an investigation according to the procedure established by law .","The report of DATE to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment ( \u201c the ORG \u201d ) from CARDINAL DATE to DATE notes :","\u201c DATE . ... As was the case during all previous visits , the delegation observed a number of shortcomings in the manner in which injuries were recorded at FAC . First of all , several newly - arrived prisoners met by the delegation displayed visible injuries on various parts of the body ( including on the face ) , but no injuries at all were recorded in the medical file , despite the fact that these injuries had apparently been sustained prior to admission . Further , although objective medical findings relating to injuries were recorded in other cases , they were frequently not accompanied by an account of the statements made by the persons concerned which are relevant to the medical examination . In particular , medical records frequently failed to note the prisoner \u2019s account of the origin of these injuries ( or to note if the person concerned had refused to reply to the relevant questions asked by the doctor ) as well as the doctor \u2019s conclusions in the light of the objective findings and the prisoner \u2019s account . Further , at FAC , the delegation found instances where visible injuries had not been recorded at all in the ORG medical files ( including after violent incidents in the prison ) .","The ORG must recommend once again that steps be taken at FAC and FAC , as well as in all other prisons in GPE , to ensure that the record drawn up after a medical examination of a prisoner , on arrival or after a violent incident within the prison , contains :","( i ) a full account of statements made by the prisoner concerned which are relevant to the medical examination , including any allegations of ill - treatment made by him ;","( ii ) a full account of objective medical findings based on a thorough examination ;","( iii ) the doctor \u2019s conclusions in the light of ( i ) and ( ii ) . In his conclusions , the doctor should indicate the degree of consistency between any allegations made and the objective medical findings ; these conclusions should be made available to the prisoner and his lawyer .","Recommendation Rec ( CARDINAL of ORG to member states on the protection of witnesses and collaborators with justice .","...","\u201c II . General Principles","Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation .","While respecting the rights of the defence , the protection of witnesses , collaborators of justice and people close to them should be organised , where necessary , before , during and after the trial .","Acts of intimidation of witnesses , collaborators of justice and people close to them should , where necessary , be made punishable either as separate criminal offences or as part of the offence of using illegal threats \u201d .","..."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-86180","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2008,"docname":"DURHAM v. THE UNITED KINGDOM","importance":4,"conclusion":"Inadmissible","judges":"Giovanni Bonello;J\u00e1n \u0160ikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( \u201c the Government \u201d ) were represented by their Agent , Mr PERSON of ORG , GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the applicant , owner of a van , received a notice from the police stating that his vehicle had been photographed speeding at QUANTITY in a restricted zone on DATE . He was asked to name the driver .","A final reminder was sent to him on DATE allowing him a further DATE to provide the required information , failing which he would be prosecuted for the additional offence of failing to give the name and address of the driver , contrary to section QUANTITY of LAW DATE .","He replied stating that he did not know who the driver was and that he did not believe it was his van in the photograph .","On DATE , the applicant received CARDINAL summonses to appear before ORG , CARDINAL stating that he was the driver of the van and the second that he had failed to give information as to the driver of the vehicle .","On DATE , ORG acquitted the applicant of being the driver of the vehicle alleged to have been exceeding the speed limit . It convicted him of failure to give information about the driver . He was fined ORG , with his licence to be endorsed with CARDINAL penalty points .","The relevant domestic law and practice is set out in O\u2019Halloran and PERSON the GPE [ ORG ] , ORG . ORG , \u00a7 \u00a7 DATE , ORG DATE ..."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-22687","languageisocode":"ENG","respondent":"GBR","branch":"ADMISSIBILITY","date":2002,"docname":"TAMOSIUS v. THE UNITED KINGDOM","importance":1,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr ORG , is a GPE national , born in DATE and living in GPE . He is represented before the ORG by Mr Lockley , a lawyer practising in the GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is a lawyer and partner of the firm ORG , based in offices in GPE . Since DATE , CARDINAL of his clients , Mr Frestadius , had been under investigation by ORG .","On DATE , the Inland Revenue sought to execute a search warrant on the applicant \u2019s offices . The applicant claimed legal professional privilege in relation to the files which they wished to examine and seize . The Inland Revenue agreed not to examine or seize any of them .","On DATE , Mr Frestadius was committed for trial on CARDINAL counts of cheating the revenue of tax payable . It was alleged that he had taken part in a scheme to evade tax by diverting commission offshore .","On DATE the Inland Revenue obtained from ORG an ex parte search warrant in order to search the applicant \u2019s premises for documents evidencing offences of serious tax fraud , suspected to have been perpetrated by CARDINAL or more of the applicant \u2019s clients . ORG also suspected that the applicant might himself have committed such offences , in particular that he had been involved in the arrangements for the diversion of commission offshore and assisted in concealing those arrangements from ORG .","The wording of the warrant was as follows ;","\u2018 any officer who enters under the authority of this warrant may ; ( a ) take with him such other persons as appear to him to be necessary ; ( b ) seize and remove any things whatsoever relating to or appearing to relate to serious tax fraud in relation to ORG , ORG and other obligations touching upon them and which he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned above and ; ( c ) search or cause to be searched any person found on the LOC whom he has reasonable cause to believe to be in possession of any such things ; but no person shall be searched except by a person of the same sex . No item may be taken from the LOC which is subject to legal privilege ( as defined in section CARDINAL of the Police and Criminal Evidence Act DATE ) ( \u2018 PACE CARDINAL\u2019)\u2019 .","The warrant was executed on DATE , but no property was initially examined or seized . Discussions took place between the parties to agree the resolution of issues of legal professional privilege , but no resolution was reached . The same day solicitors on behalf of the applicant applied for leave to judicially review the grant of the warrant . On DATE , leave was granted subject to the Inland Revenue giving an undertaking that any material removed from the premises would be sealed in opaque bags and not inspected until the full hearing . The first warrant was due to expire on DATE and the Inland Revenue obtained a second ex parte warrant with identical wording apart from the following addition ; \u2018 ... obligations touching upon them , in relation to the persons named in the attached schedule , which he has reasonable cause ... \u2019 The attached schedule contained the names of CARDINAL companies and persons involved in the arrangements which the Inland Revenue alleged were designed to cheat .","On DATE , the second search warrant was then executed . CARDINAL documents , files and books were examined and seized . The procedure was as follows . Officers searched for relevant material . Once relevance had been decided , material was then reviewed by the counsel nominated by the Attorney - General and instructed by ORG for the purposes of advising whether any document or other thing shown to him ( a ) was subject to legal professional privilege , ( b ) was not subject to legal professional privilege , ( c ) would have been subject to legal professional privilege but for the fraud \/ crime exception set out in section ORG ) of PACE DATE . Any document found to be subject to legal professional privilege was handed back to solicitors for the applicant . All the documents seen by counsel were listed , with counsel \u2019s opinion as to each .","On CARDINAL NovemberCARDINAL , ORG took the view that neither warrant was unlawful .","It rejected the applicant \u2019s arguments that the warrant failed to give adequate particulars of the materials which could be seized , holding that the there was nothing in the statute which required the particularity for which he contended . The validity of the warrant depended not upon its particularity but upon there being reasonable suspicion that an offence of serious fraud had been committed and there being reasonable ground for suspecting that evidence was to be found on the LOC .","\u201c The fallacy in the applicant \u2019s argument lies in the content that greater particularity will provide greater protection against the seizure and removal of things which are irrelevant to the investigation or which are subject to legal professional privilege . ... The protection against the seizure and removal of irrelevant or privileged material lies in sub - section CARDINAL . Even if the warrant had been more specific it would provided no greater protection . Greater particularity of the kind for which the applicant contended would and could not have prevented officers of the revenue seizing and removing that which they were permitted to take by virtue of sub - section CARDINAL . \u201d","As regarded the applicant \u2019s complaints against the scrutiny of counsel instructed by ORG , the court stated :","\u201c The prohibition under subsection ( CARDINAL ) is absolute . If a document is the subject of professional privilege it can not be seized or removed . If therefore , an officer does seize and remove documents which are properly the subject matter of professional privilege , he acts unlawfully and can be prevented from so doing by the court . The court would also order him to return such documents . Moreover if the officer has acted unlawfully , the revenue may be liable in damages . Thus if it subsequently turns out that counsel was wrong , his presence will not assist the revenue to resist any action taken by the court in an attempt to remedy the unlawful seizure and removal of documents subject to professional privilege . It is for the court to determine whether the documents in fact seized and removed were subject to such privilege . The fragility of professional privilege is to be protected , under the statutory regime , by the processes of and the sanctions imposed by the courts . It is only when they are found wanting that one can see that the rights to privacy and access to lawyers have been infringed . Therein lies a difficulty for this applicant . The complaint as to infringement of its rights would be easier to assess in the context of a complaint that professionally privileged documents were , in fact , seized and removed ; That issue , possibly , remains to be litigated , but , as yet , there is no evidence that any of the documents seized and removed was privileged .","In the meantime it was open to the revenue in seeking to protect itself against unlawful seizure and removal to obtain the assistance of counsel nominated by the Attorney General . Such presence also protected the applicant ... the lawfulness of the seizure and removal was not tainted by the presence of counsel . Indeed , I would have thought that his presence , in cases such as these , was to be encouraged , so long as it is understood that his presence should not inhibit a solicitor who wishes to assert a genuine claim to legal professional privilege from making his assertion as speedily as he can before the courts . \u201d","The applicant petitioned ORG for leave to appeal and was refused on DATE .","On a date unspecified , DATE , a decision was taken not to prosecute the applicant .","Section CARDINAL of LAW DATE ( as amended ) provides :","\u201c ( CARDINAL ) If the appropriate judicial officer is satisfied on information given on oath given by an officer of the board that","\u2013 ( a ) there is reasonable ground for suspecting that an offence involving serious fraud in connection with , or in relation to , tax is being , has been or is about to be committed and that evidence of it is to be found on premises specified in the information ; and ( b ) in applying under this section , the officer acts with the approval of the board given in relation to the particular case , the authority may issue a warrant in writing authorising an officer of the board to enter the LOC , if necessary by force , at any time within DATE from the time of issue of the warrant and search them . ...","( CARDINAL ) An officer who enters ... may ( a ) take with him such other persons as appear to him to be necessary ; ( b ) seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence .","( CARDINAL ) Nothing in sub - section ( CARDINAL ) above authorises the seizure and removal of documents in the possession of a barrister , advocate or solicitor with respect to which a claim to professional privilege could be maintained . \u201d","Role of the counsel instructed to review the materials removed during the search","According to the instructions issued to counsel nominated by the Attorney - General to act on such searches , counsel \u2019s role was to advise in relation to any document or thing over which a claim of legal professional privilege ( LPP ) is or could be made to decide whether it was :","( a ) subject to ORG and the fraud \/ crime exception does not apply ;","( b ) relevant and not subject to ORG ; or","( c ) relevant , ORG would ordinarily apply but the fraud \/ crime exception defeats the claim of LPP .","Counsel was told :","\u201c CARDINAL You are not part of the search team but there to give independent advice . You must not allow yourself to become part of the evidential trail as to the discovery of items during the search . Once they have been discovered by an officer who could give evidence about it if the matter proceeded to trial , it is your task to examine them for the specific purpose set out in these instructions .","...","CARDINAL In the event of a claim of ORG being made in relation to any item or in the event that any officer uncovers an item which may attract LPP , it will be your responsibility to assess the validity of that claim . Although you received your instructions to attend from the Revenue , you are there to act independently in assessing whether the item attracts LPP . \u201d","Section CARDINAL of the Police and Criminal Evidence Act DATE provides :","( CARDINAL ) Subject to subsection ( CARDINAL ) below , in this LAW , \u201c items subject to legal privilege \u201d means-","( a ) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client ;","( b ) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings ; and","( c ) items enclosed with or referred to in such communication and made-","( i ) in connection with the giving of legal advice ; or","( ii ) in connection with or in the contemplation of legal proceedings and for the purposes of such proceedings ...","( CARDINAL ) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-106773","languageisocode":"ENG","respondent":"MLT","branch":"CHAMBER","date":2011,"docname":"CASE OF VASSALLO v. MALTA","importance":3,"conclusion":"Violation of P1-1;Remainder inadmissible;Pecuniary damage  - reserved","judges":"Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Zdravka Kalaydjieva","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE","The applicant is CARDINAL of CARDINAL owners of a piece of land in GPE , GPE , having an area of QUANTITY ( \u201c sq.m . \u201d ) .","The land was the subject of a declaration by the Governor General dated CARDINAL DATE , stating that it would be expropriated for a public purpose . The public purpose intended was a social housing project .","At the time , the initiation of compensation proceedings was an action which could only be undertaken by the authorities and to which no time - limit applied . However , in DATE domestic case - law confirmed that the ordinary courts had the competence , upon a request made by persons in the applicant \u2019s position , to set a time - limit for the performance of the obligation by virtue of LAW , a long - standing provision .","Following DATE of silence on the part of the authorities , on DATE the ORG issued a notice to treat and offered the owners of the land MONEY ( MTL ) , MONEY ( ORG ) . This reflected the value ( on the date of valuation ) of the property as agricultural land , including some rural structures according to an independent architect \u2019s evaluation commissioned by ORG on DATE . The owners refused this offer and proceedings were initiated before ORG ( \u201c LAB \u201d ) to assess the amount of compensation due . These proceedings are still pending to date since they have been suspended pending the completion of the ordinary and constitutional proceedings instituted ( see below ) .","DATE the property remained unused . On DATE , pending the proceedings mentioned below , the authorities ordered the restitution to the owners of part of the land measuring CARDINAL sq.m . , which was eventually released in DATE . On DATE the applicant and the other owners signed a sworn declaration to the effect that no further claims for compensation or damages would lie in respect of this piece of land .","NORP The remaining land ( CARDINAL sq.m . ) was kept by the authorities with the aim of building a social housing project . In DATE the Government started constructing apartments and maisonettes . While the price offered for the remaining land still has to be apportioned by the ORG , the ORG estimated that a fair pro rata value would amount to ORG CARDINAL,CARDINAL , approximately ORG CARDINAL,CARDINAL .","On DATE the applicant \u2019s predecessor instituted ordinary civil proceedings . He contended that the order of expropriation had not been made for a public purpose , since the land had remained unused and the purpose put forward , namely the construction of housing units for third persons , could not be considered to be in the public interest . In consequence , they requested that the expropriation be declared null and void .","On DATE ORG dismissed the claim , holding that it had not been proved that the expropriation had been in contravention of the law , namely ORG ) Ordinance .","No appeal was lodged against this judgment .","On DATE the owners of the land ( including the applicant ) instituted constitutional redress proceedings . They claimed a violation of their rights under LAW No . CARDINAL to the LAW in that the expropriation had not been carried out for a public purpose , since the land had remained unused for DATE and the purpose put forward , namely the construction of housing units for third persons , could not be considered to be in the public interest . They further argued that the measure had not been proportionate in view of the compensation offered and that they should be compensated according to the market value of the land at that date .","On DATE ORG ( FAC ) in its constitutional jurisdiction found a violation of LAW No . CARDINAL to the Convention and awarded the owners ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage . It held that the land had originally been taken in the public interest , namely for the housing project , construction of which , however , had only recently started . However , this public purpose had not been pressing , since the land had remained unused for DATE , during which the authorities had not initiated compensation proceedings . In consequence the ORG property rights had been breached . Lastly , noting that the owners were not calling into question the relevant compensation provisions of the law , but simply arguing what compensation should be payable , it refused to take cognisance of the claim regarding compensation for pecuniary damage , since the amount payable still had to be determined by the ORG . The expenses were to be borne by both parties .","By a judgment of DATE , ORG , on appeal , altered the first - instance judgment in part . While considering that a public interest had existed originally , and had persisted since indeed some apartments had eventually been built , it confirmed that there had been a delay on the part of the authorities in initiating proceedings , which had been to the detriment of the owners , and this constituted a breach of their property rights . However , it noted that although the owners had an available remedy to speed up the process , they had done nothing about it . In consequence , while upholding the finding of a violation , ORG reduced the award in respect of non - pecuniary damage to ORG CARDINAL . It further confirmed that the complaint regarding compensation for pecuniary damage was premature , that issue still having to be determined by the LAB . It ordered the expenses to be borne by both parties .","ORG ) Ordinance ( LAW of LAW ) , in so far as relevant , reads as follows :","Section CARDINAL","\u201c The President of GPE may by declaration signed by him declare any land to be required for a public purpose . \u201d","Prior to the amendments introduced in DATE , ORG ) Ordinance provided that :","Section CARDINAL(CARDINAL )","\u201c ... the competent authority shall give to the owner a notice ... by means of a judicial act , stating the amount of compensation , as shown in a valuation to be attached to the notice to treat . \u201d","Section CARDINAL(CARDINAL )","\u201c The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ( ... ) . \u201d","Section CARDINAL","\u201c If the owner shall by a judicial act decline to accept the offer made by the competent authority , the matter shall be brought before ORG by an application to be made by the competent authority , and the ORG shall give all necessary orders or directions in accordance with the provisions of this Ordinance . \u201d","Article CARDINAL ( b ) of ORG , LAW of LAW , in so far as relevant , reads as follows :","\u201c Where the time for the performance of the obligation has been left to the will of the debtor , or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so , or when he will have the means for so doing , the following rules shall be observed :","( b ) if the subject - matter of the obligation is other than the payment of a sum of money , the time within which the obligation is to be performed shall be fixed by the court according to the circumstances . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-105499","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2011,"docname":"CASE OF SA\u00c7ILIK AND OTHERS v. TURKEY","importance":3,"conclusion":"Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award;Just satisfaction reserved (one applicant)","judges":"Andr\u00e1s Saj\u00f3;David Th\u00f3r Bj\u00f6rgvinsson;Fran\u00e7oise Tulkens;Guido Raimondi","text":["On DATE the applicants were in detention in FAC when a large - scale security operation was conducted there by CARDINAL members of the security forces consisting mainly of gendarmes and soldiers . As the remaining facts of the case are in dispute between the parties , they will be set out separately . The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL ) . The Government \u2019s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicants and the Government is summarised in Section D ( paragraphs CARDINAL ) .","On DATE a number of remand prisoners in FAC were beaten by gendarmes on their way back from a court hearing . On DATE CARDINAL detainees , including CARDINAL of the applicants , informed the prison administration that , unless steps were taken to guarantee their safety , they would not be appearing at a hearing in ORG scheduled for DATE . Neither the prison authorities nor the prosecutors responded to their calls .","At TIME on DATE , members of the security forces arrived at the prison in large numbers . Using the furniture in their dormitories the inmates unsuccessfully tried to block the doors to stop the soldiers from coming in . The soldiers locked the windows to the prison cells , set fire to the cell doors and tried to confine the inmates in CARDINAL part of the prison , measuring QUANTITY . The applicants PERSON and PERSON suffered burns in the fire . When the inmates were confined in the same QUANTITY the soldiers used tear gas and various other chemical gases on them .","A hole was opened in the walls of this room with a digger . When the digger went through the hole and into the room the applicant Mr PERSON waved his arm at the operator of the machinery , trying to tell him to withdraw the digger . The operator saw Mr PERSON but proceeded , tearing off Mr Sa\u00e7\u0131l\u0131k \u2019s left arm from above his elbow . The severed arm was not collected by the authorities with a view to preserving and reattaching it , but was left there in the rubble . It was later taken from the mouth of a stray dog which had snatched it from the rubble .","Furthermore , a gas bomb detonated nearby seriously damaged the applicant PERSON right hand and eardrum .","The soldiers then started beating the inmates , dragging them on the floor , sexually assaulting female detainees and threatening them with rape . The detainees were then handcuffed , with their hands behind their backs , and were kept in that position for DATE TIME . The beatings continued even after the detainees were handcuffed . The soldiers attempted to insert a truncheon and a fluorescent light stick into the anuses and vaginas of the applicants PERSON and PERSON and started raiding the detainees\u2019 personal belongings .","The injured detainees , some with life - threatening injuries , were subsequently taken to hospital . However , it was too late for PERSON arm to be stitched back on , so he permanently lost his arm . The health of a number of other applicants also worsened because of the delays . Moreover , the soldiers prevented some of the detainees from receiving medical assistance at the hospital and took them back to the prison before their treatment had been completed .","On DATE CARDINAL detainees , including CARDINAL of the applicants , refused to obey the prison authorities and attend a hearing at ORG . ORG requested assistance from a number of other military headquarters in an operation to be carried out in the prison .","The applicants and a number of other detainees began rioting in the prison . At TIME on DATE , members of the security forces entered the prison in order to restore safety and security . They warned the prisoners and asked them to stop rioting . CARDINAL prisoners complied with the soldiers\u2019 instructions , but the remaining ones , including the applicants , continued to riot . They barricaded themselves in , opened fire , set fire to the dormitories and corridors , attacked members of the security forces with hand - made harpoons and iron bars and threw various explosive and corrosive chemicals at them . CARDINAL gendarmes were injured as a result of the attacks .","As soon as members of the security forces managed to pass the barricades , the prisoners moved to the next dormitory after setting fire to the one they had been in . At that point the soldiers opened holes in the ceilings of the dormitory where the prisoners had gathered , and threw in tear gas canisters with a view to stopping the riots and minimising further damage .","A total of CARDINAL holes were opened . The applicant PERSON was injured when a machine was opening the holes .","At the end of the operation a search was carried out . A number of documents belonging to an illegal organisation , CARDINAL iron bars , CARDINAL wooden bars , CARDINAL hand - made objects used for cutting and digging holes , CARDINAL saws , CARDINAL pairs of scissors and CARDINAL hammers were found during the search .","Apart from the severe damage caused to the prison building , CARDINAL security force personnel , CARDINAL prison guards , CARDINAL civilian and QUANTITY prisoners were wounded during the operation . The QUANTITY wounded prisoners were taken to hospitals . When CARDINAL other prisoners refused to go to hospital for medical checks , CARDINAL doctors were taken to the prison to provide medical assistance to them .","Although the applicant PERSON alleged that she had been raped with a truncheon , the medical reports pertaining to her examination revealed that her hymen was intact .","In the course of the investigation prosecutors questioned the applicants and members of the security forces , and examined the medical reports . On DATE the ORG prosecutor concluded that the soldiers\u2019 actions had become unavoidable as a result of the ORG behaviour , and decided not to prosecute any members of the security forces .","NORP The applicant PERSON successfully filed a civil suit for his injuries , claiming MONEY ( TRL ) in respect of pecuniary damage and CARDINAL in respect of non - pecuniary damage . On DATE the sum of TRL CARDINAL ( MONEY ( ORG ) at the time ) , which included accrued interest , was paid to PERSON .","The following information emerges from the documents submitted by the parties .","On DATE the president of ORG sent a letter to the ORG prosecutor and stated that CARDINAL inmates at the prison had failed to attend a hearing scheduled for DATE . The president urged the prosecutor to ensure the inmates\u2019 attendance at the next hearing scheduled for DATE , \u201c if necessary by forceful means so that judicial functions could be performed and the authority of the ORG would not be undermined \u201d .","NORP In his letter of CARDINAL DATE the governor of ORG informed the PERSON prosecutor \u2019s office about ORG president \u2019s letter . In the opinion of the prison governor , force would need to be used to uphold the \u201c ORG \u2019s authority \u201d but there was an insufficient number of prison guards at the prison to handle such an intervention .","On DATE the ORG public prosecutor asked ORG to ensure the attendance of the CARDINAL detainees at the hearing , if necessary by forceful means . The same day ORG asked a number of other military headquarters , including the special forces at the GPE and ORG , to assist them in an operation to be carried out in FAC DATE .","According to incident reports drawn up by soldiers on DATE , the soldiers went to the prison in TIME and asked the QUANTITY detainees to leave the prison and go to the hearing . When this request met with the ORG refusal , the soldiers entered the prison and saw that the inmates had barricaded themselves in their dormitories using their bunk - beds , tables , lockers and other furniture . When the inmates were all confined in CARDINAL room , the walls of the room were demolished and the soldiers threw in gas canisters . However , the inmates covered their heads with wet fabrics to protect themselves from the effects of the gas , before proceeding to throw the gas canisters back at the soldiers . The inmates then started throwing cleaning products containing acid and bleach at the soldiers and hitting them with metal rods made from window bars . When the soldiers finally gained control of the prison , CARDINAL of their number had either been beaten up by the inmates or intoxicated by the tear gas . When the operation ended at TIME the injured inmates were taken to hospitals .","The applicants were all examined by doctors on a number of occasions . Details of their injuries , as noted in the medical reports , are as follows :","PERSON : Mr PERSON was taken to hospital on DATE and was discharged again on DATE . It was not possible to stitch his arm back on and his injury was deemed to be life - threatening by the doctors . His injury prevented him from working for DATE .","PERSON : Examined by CARDINAL doctors . Various injuries to the face , arms and legs . Unable to work for a period of DATE .","PERSON : Examined by CARDINAL doctors . Various injuries , some infected , and bruising on the torso , arms and legs , requiring a DATE healing period . Unable to work for a period of DATE .","PERSON : Examined by CARDINAL doctors . Various injuries and bruising on the head and on the back of his body , legs and ankles . Unable to work for a period of DATE .","PERSON : Examined by CARDINAL doctor . His injury prevented him from working for DATE .","PERSON : Examined by CARDINAL doctors . Various injuries and bruising on the shoulders and arms . Unable to work for a period of DATE .","PERSON : Examined by CARDINAL doctors . Various injuries , some infected , and bruising on the shoulders and the back of the body , arms and legs . Unable to work for a period of DATE .","PERSON : After the operation Mr GPE was taken to a hospital suffering from gas intoxication and his condition was deemed to be life - threatening by doctors who also observed various injuries and bruises on the left ear , head , arms and legs . Unable to work for a period of DATE .","PERSON Examined by CARDINAL doctors . Various injuries and bruises on the back of the body , ribs , arms and legs . Unable to work for DATE .","PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the head and round the eyes and extensive injuries to the shoulders , the back of the body and the arms , wrists and fingers . Unable to work for a period of DATE .","Necla \u00c7omak : Ms \u00c7omak was examined by CARDINAL doctors . Various injuries and bruises on various parts of the body including the head and the eyes . Unable to work for a period of DATE .","PERSON : Examined by CARDINAL doctors CARDINAL of whom was an ear , nose and throat consultant . Various infected injuries on the right hand . Various injuries and bruises on the head , face , eyes , ears , shoulders , arms and legs . Perforated ear drum and hearing loss . Unable to work for a period of DATE .","PERSON Examined by CARDINAL doctors . Various injuries and bruises on the head and the right shoulder blade . Unable to work for a period of DATE .","PERSON : After the operation PERSON was taken to a hospital suffering from gas intoxication and his condition was deemed to be life - threatening by doctors . He was discharged from the hospital DATE . The doctors also observed various injuries and bruises on the ribs , knees , legs and torso , which prevented him from working for a period of DATE .","PERSON : After the operation PERSON was taken to a hospital suffering from gas intoxication and her condition was deemed to be life - threatening by doctors , who also observed extensive injuries and bruising on her face and legs . Unable to work for a period of DATE .","Veysel Ya\u011fan : Examined by CARDINAL doctors . Extensive injuries and bruising on the back of the body , arms , hands , legs and feet . Unable to work for DATE .","PERSON : Examined by CARDINAL doctors and taken into hospital for a head trauma . Various injuries and bruises around the eyes , nose , face , ears , lips , shoulders , arms and knees and a nose fracture . Unable to work for DATE .","PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the face , chest and back of the body , arms and legs . Unable to work for a period of DATE .","Cavit Tem\u00fcrt\u00fcrkan : Examined by CARDINAL doctors . Extensive injuries and bruising on the head , face , back of the body and legs . Unable to work for a period of DATE .","PERSON : Examined by CARDINAL doctors . Extensive injuries and bruising on the head , knees , lumbar region , sternum , arms and legs . On DATE PERSON was also examined by a doctor in relation to her allegations of sexual attacks and it was established that her hymen was intact . Her various injuries rendered her unfit for work for a period of DATE .","PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the face , back of the body , lumbar region and legs . Unable to work for a period of DATE .","PERSON : After the operation Mr PERSON was taken to a hospital suffering from gas intoxication and his condition was deemed to be life - threatening by doctors , who also observed extensive injuries and bruising on his head , ears , chest , back of his body , arms , legs and feet . His injuries prevented him from working for a period of DATE .","PERSON Davran : Examined by CARDINAL doctors , who observed various injuries and bruises on her back , arms , and legs , which prevented her from working for a period of DATE .","PERSON : Examined by a doctor who observed various injuries and bruises on her head , eyes , neck , shoulders and legs . Her injuries rendered her unfit to work for a period of DATE .","PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the head , face , chest , back of the body , arms and legs . Unable to work for a period of DATE .","On DATE and DATE the applicants were questioned by public prosecutors . They told the prosecutors that they had been subjected to various forms of ill - treatment .","DATE and DATE the applicants submitted CARDINAL separate complaint petitions to prosecutors and asked for the security personnel responsible for their injuries to be prosecuted .","On DATE lawyers representing the applicants , as well as CARDINAL other detainees , submitted a joint and detailed complaint to the office of the Burdur public prosecutor and asked for prosecutions to be brought against those responsible for the ill - treatment and injuries .","In his letter of DATE the ORG informed the relevant ministerial authorities that the force used by the soldiers had remained within the permissible limits of the applicable legislation . The soldiers had been particularly cautious in not using their weapons and careful not to infringe the NORP human rights ; they had never attacked the inmates and had not caused any injury to any of them . The inmates who had been intoxicated by the gas used by the soldiers , as well as Mr Sa\u00e7\u0131l\u0131k , who had been \u201c injured while throwing bricks at the driver of the digger \u201d , had \u201c promptly \u201d been taken to hospital . In his letter the governor also stated that \u201c CARDINAL of the CARDINAL inmates had been taken to hospitals in ambulances after the operation had ended at TIME and the remaining inmates had been held in the prison \u201d .","On DATE the soldiers who took part in the operation were questioned by an army officer . DATE they were further questioned by prosecutors . They all denied having ill - treated the applicants , and maintained that respect for human rights had been paramount during the operation . A number of prison guards who had been on duty at the prison DATE stated that they had not seen or heard anything .","In the meantime , on DATE the applicant PERSON submitted a separate complaint to the ORG prosecutor and gave details of the sexual assault to which she claimed she had been subjected during the operation . According to PERSON , the soldiers had forced a truncheon into her vagina and the doctor who examined her had refused to establish whether her hymen had been torn . She asked the prosecutor to refer her to a hospital specialising in post - traumatic stress disorders and to carry out an investigation \u201c in compliance with ORG .","On DATE the ORG gendarmerie commander PERSON drew up his preliminary investigation report in which he concluded that the soldiers had not ill - treated any of the inmates . The inmates had made the allegations of ill - treatment in order to damage the reputation of the armed forces .","Acting on officer ORG advice , on DATE the ORG declined to grant the necessary authorisation to the prosecutors to investigate a number of gendarme officers . ORG lodged an objection against that decision on DATE .","On DATE ORG asked for permission to prosecute CARDINAL officers implicated in the allegations .","In his letter of CARDINAL DATE ORG informed ORG that \u201c a number of inmates had been injured in the course of an operation which had been necessary to quell a large - scale riot against the prison administration \u201d . In a similarly worded letter addressed to ORG in GPE on DATE , ORG stated that \u201c during forceful resistance by terrorists , security forces had to use force and a number of security personnel and terror convicts were injured \u201d .","On DATE ORG brought prosecutions against the applicants and a number of other inmates for \u201c having caused a riot \u201d .","The same day Prosecutor Uyav requested permission from the ORG governor to investigate the actions of CARDINAL members of the security forces who had taken part in the operation . The ORG governor appointed his deputy Mr PERSON to carry out a preliminary investigation","NORP In its decision of DATE ORG upheld the prosecutor \u2019s objection of CARDINAL DATE , and held that the preliminary investigation should have been conducted by ORG .","In its decision of DATE ORG appointed gendarmerie colonel PERSON to examine the allegations with a view to advising as to whether a prosecution should be brought against the soldiers .","In his report of DATE Colonel PERSON recommended ORG to refuse the authorisation sought by the ORG prosecutor to prosecute the CARDINAL members of the security forces . It appears from this report that a total of CARDINAL of the CARDINAL security personnel had been questioned by Colonel PERSON and they had all denied the allegations against them . Colonel PERSON concluded that the operation had been a success , the uprising had been halted and the authority of the ORG had been restored . Other than their abstract allegations , there was no evidence to support the applicants\u2019 \u201c ill - intentioned allegations \u201d .","Acting on Colonel PERSON \u2019s advice , on DATE the ORG governor declined the authorisation sought by the PERSON prosecutor .","On DATE ORG prosecutor PERSON lodged an objection against the ORG governor \u2019s decision of DATE .","In his decision of DATE the PERSON governor refused to grant authorisation for the prosecution of a further CARDINAL gendarme officers .","On DATE ORG upheld the Burdur prosecutor \u2019s objection and the file was forwarded to that prosecutor \u2019s office for a judicial investigation to be opened .","In the course of the investigation the prosecutors questioned the applicants and examined the medical reports detailing their injuries .","On DATE a colonel at ORG in GPE wrote to the ORG public prosecutor informing him that exorbitant sums of compensation were being awarded to the inmates by administrative courts despite the absence of a court decision placing criminal responsibility on the administration and despite the fact that the operation in question had been conducted with a view to protecting the right to life and quelling riots staged by prisoners acting under orders from illegal organisations . The colonel added that there was a need for the investigation to be concluded as soon as possible so that it could be established whether or not the administration was at fault . He asked the prosecutor to provide him with information about the investigation .","In his decision of CARDINAL DATE the PERSON public prosecutor decided not to prosecute any members of the security forces . The prosecutor noted that the driver of the digger which had severed ORG arm had subsequently been tried for , and acquitted of , the offence of causing bodily injury by recklessness . The prosecutor also noted that a number of doctors and nurses working at the hospital where PERSON had been treated had also been tried for neglecting their duties , but had been acquitted . Criminal proceedings brought against the inmates for causing a riot , on the other hand , were still pending .","The prosecutor considered that the soldiers\u2019 intervention had become unavoidable as a result of the actions of inmates who had refused to surrender but had instead gone on to set fire to the objects in their dormitories and to attack the soldiers with wooden sticks and iron bars . PERSON arm had been severed when he had tried to throw bricks at the soldiers through the hole in the prison wall opened by the digger .","The prosecutor observed that , according to the medical reports , all applicants had suffered various injuries , preventing them from working for different periods . Although PERSON had alleged that she had been raped with a truncheon , the medical reports showed that her hymen was intact . There was no medical evidence of any sexual assault of the other female detainees and , as such , their allegations of sexual abuse were unfounded .","In the prosecutor \u2019s opinion , the soldiers had had to resort to the use of force in order to quell the ORG riot , and the amount of force used had been \u201c no more than absolutely necessary \u201d within the meaning of LAW .","An objection lodged against the prosecutor \u2019s decision was rejected on CARDINAL DATE by ORG , which considered that the prosecutor \u2019s decision was in accordance with the applicable legislation and procedure .","Furthermore , on DATE ORG terminated the criminal proceedings against the applicants for causing a riot , as the statutory time - limit for such proceedings had been reached .","In DATE Mr PERSON brought proceedings against ORG and ORG , claiming TRL CARDINAL for pecuniary damage and TRL CARDINAL for non - pecuniary damage .","On DATE ORG concluded that the use of heavy machinery in a prison had been unusual . Even assuming that its use had been necessary , PERSON had at that time been intoxicated by the gases used by the soldiers and had been trying to get fresh air through the hole opened by the digger . It had not been alleged that he was posing any threat to the soldiers or to the driver of the digger ; indeed that would have been most improbable given his state of health at the time . It was also clear that the driver of the digger had seen Mr PERSON but had carried on regardless . The ORG were therefore responsible for his injury caused by the use of disproportionate force . It thus awarded PERSON the sums claimed by him in full , plus statutory interest .","The ORG appealed . According to the applicable procedure , appeal proceedings do not affect the execution of first - instance court decisions . Thus , the total sum of ORG was paid to ORG before the appeal was decided .","The appeal lodged by ORG was upheld by ORG on DATE and the decision awarding Mr Sa\u00e7\u0131l\u0131k the compensation was quashed . The applicant \u2019s request for a rectification of that decision was rejected by ORG on DATE .","Proceedings were restarted before ORG , which decided on DATE to reject the applicant \u2019s claim for compensation . According to ORG , the applicant had contributed to the incidents in the prison and members of the security forces had had to restore discipline in the prison . The applicant \u2019s actions had thus severed the link of causation between the actions of the security forces and the ensuing damage .","On DATE the judgment was served on the applicant , who lodged an appeal through ORG . The latter failed to transfer the applicant \u2019s appeal to ORG within the statutory time - limit . Following the applicant \u2019s challenge and , having noted this administrative error , ORG granted the appeal on DATE . In the meantime , in his observations ORG at ORG opined that the applicant \u2019s appeal should be dismissed . The proceedings are still pending ."],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-70283","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2005,"docname":"CASE OF PETRI SALLINEN AND OTHERS v. FINLAND","importance":3,"conclusion":"Violation of Art. 8;Not necessary to examine under Art. 6;Not necessary to examine under Art. 13;Non-pecuniary damage -  financial award (one applicant);Finding of violation sufficient (others);Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Nicolas Bratza","text":["The first applicant was born in DATE and lives in GPE . He is a member of ORG . The other CARDINAL applicants were his clients at the relevant time ( \u201c the client applicants \u201d ) .","On DATE the police conducted a search \u2013 it is not entirely clear of which premises \u2013 based on the suspicion that the first applicant 's clients X and Y ( not client applicants before the ORG ) had committed aggravated debtor 's fraud . In the course of that search X managed to destroy the original of a promissory note which the police had attempted to seize and which may have been relevant to the financial arrangements underlying the suspected offence .","At the time the first applicant 's status in the investigation had been that of a witness . On DATE the police requested him to attend for questioning in this capacity . This request was apparently cancelled before he had taken any action thereon .","A police officer in charge of the criminal investigations granted a search warrant and on DATE CARDINAL officers of ORG ( keskusrikospoliisi , centralkriminalpolisen ) , assisted by a tax inspector and an enforcement official ( ulosottomies , utm\u00e4tningsman ) , searched the first applicant 's law office , flat and vehicles . This search warrant was likewise based on the suspicion that NORP and Y had committed aggravated debtor 's fraud but the first applicant was now indicated as a suspect , namely that he had aided and abetted the offences by drafting certain documents .","Under the terms of the warrant the search aimed at examining \u201c the documents , computers and archives of the law office \u201d as well as the first applicant 's flat and vehicles \u201c so as to investigate the share transactions by the limited liability company [ H. ] in DATE and to find material relating to those transactions \u201d .","During the search of his law office all of the first applicant 's client files were allegedly perused . The police also examined all floppy disks and examined his note books pertaining to his meetings with clients . In addition , the hard disks in the office computers were copied : CARDINAL were copied on the spot and CARDINAL computers , including the CARDINAL used by the first applicant himself , were seized for later disk - copying on police premises . Those computers were returned on DATE .","The first applicant 's computer also contained software for electronic mail , including his private and professional messages .","A fellow member of the Bar assisted the first applicant during part of the search .","On DATE the first applicant requested ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) of GPE to revoke the seizure as being unlawful . On DATE the court nevertheless maintained it , noting that the first applicant was suspected of aiding and abetting aggravated debtor 's dishonesty .","On CARDINAL DATE ORG ( hovioikeus , hovr\u00e4tten ) of ORG upheld ORG decision and on DATE ORG ( korkein oikeus , h\u00f6gsta domstolen ) refused the first applicant leave to appeal .","On DATE the police certified the return of CARDINAL of the CARDINAL hard disks and that they had destroyed any copies thereof . They stated however that they would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason .","In DATE CARDINAL of the applicants ( nos . CARDINAL and CARDINAL) requested ORG to revoke the seizure of the copy of the fourth hard disk ( which contained material relating to their instructions to the first applicant ) and to order the police to compensate their costs . They argued that the seizure had been unlawful from the outset . At any rate , the copy in question was of no relevance to the pre - trial investigation concerning NORP and Y.","In its rejoinder ORG referred to ORG decision of CARDINAL DATE in which the seizure had been found lawful . Moreover , the hard disks had only been subjected to a targeted search and they were able to search information concerning only relevant companies and individuals . Only the potentially relevant client files in the law office had been perused . The search and seizure had thus not been of wholesale nature . The tax and enforcement officials who had witnessed the search had been DATE and remained DATE under a duty to keep secret any information thereby obtained .","On DATE the ORG agreed with the CARDINAL client applicants and ordered that the copy of the fourth hard disk be returned . It rejected , as not being based on law , the applicants ' claim for compensation in respect of their costs . The applicants appealed on this point , whereas the police appealed against the revocation order .","NORP In its submissions to ORG the National Bureau of Investigation listed the contents of the copied hard disk . For example , specific mention was made of what appears to have been the promissory note which the police had been looking for ( and had found ) . The submissions indicated the debtor 's and the creditor 's names as well as the amount of the debt . ORG furthermore explained that the material on the relevant hard disk had been copied to a so - called optical disk which could in any case not be returned as it also contained internal police data . The submissions by the ORG were apparently not ordered to be kept confidential .","On DATE ORG declined to examine the parties ' appeals , considering that the matter had been resolved res judicata in the first set of proceedings ending with ORG decision of CARDINAL DATE . ORG granted leave to appeal to the CARDINAL client applicants in question .","On DATE the public prosecutor charged , among others , X and Y with aggravated debtor 's dishonesty but decided to press no charges against the first applicant , having found no evidence of any crime .","On DATE ORG ruled that although a final decision had already been rendered in respect of another appellant , it did not prevent the courts from examining similar appeals filed by other parties . The case was referred back to ORG which , on DATE , revoked ORG decision on the basis that the seizure had been lawful .","The CARDINAL client applicants in question were again granted leave to appeal to ORG . On DATE it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant .","ORG found it undisputed that the copied hard disk contained information relating to the CARDINAL client applicants ' instructions to the first applicant . It had not been argued that this information was not protected by counsel 's secrecy obligation under LAW , section CARDINAL of the Code of Judicial Procedure . Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime .","ORG accepted that the police had been entitled by LAW , section CARDINAL of LAW ( pakkokeinolaki , tv\u00e5ngsmedelslagen TIME ) to seize the first applicant 's hard disk and make a copy thereof . Technical reasons and practical needs ( the fact that the police had been obliged at the time of the search to copy the whole hard disk ) did not however permit any deviation from the prohibition on seizure of privileged material . The police should therefore have returned the computer files immediately or destroyed them . The appellants were awarded reasonable compensation for their costs and expenses .","On DATE the Chief Enforcement Officer of PERSON confirmed that the copy of the hard disk had been destroyed on DATE .","On DATE the Deputy Chancellor of ORG ( valtioneuvoston apulaisoikeuskansleri , justitiekansleradjointen i statsr\u00e5det ) issued his decision in response to a petition by ORG concerning , inter alia , the alleged unlawfulness of the coercive measures against the first applicant . He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert . He nevertheless concluded , inter alia , that from the point of view of foreseeability of domestic law , as required by LAW , the relationship between LAW ( LAW , section CARDINAL , subsection CARDINAL ) , LAW ( LAW , section CARDINAL , subsection CARDINAL ( CARDINAL ) ) and LAW ( section CARDINAL c ) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be subject to search and seizure . The Deputy Chancellor therefore requested ORG to consider whether there was a need to amend the relevant legislation .","Under LAW ( GPE the police may conduct a search , inter alia , if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds DATE imprisonment ( LAW , section CARDINAL ) . The search warrant is issued by the police themselves .","A search may also be conducted on the LOC of a person other than the one who is under reasonable ( todenn\u00e4k\u00f6inen , sannolik ) suspicion of having committed an offence of the aforementioned nature , provided the offence was committed on those LOC or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those LOC will produce an object to be seized or other information pertaining to the offence ( LAW , section CARDINAL ) . In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings , that it may have been removed from someone by a criminal offence or that the court may order its forfeiture ( LAW , section CARDINAL ) .","A sealed letter or other private document which has been seized may only be opened by the head of investigation , by the prosecutor or by the court . In addition , only the investigators of the offence in question may examine such a document more closely . However , an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material , as directed by the head of investigation , by the prosecutor or by the court ( LAW , section CARDINAL) .","NORP Whenever possible , the officer in charge shall call a witness to attend the search . If deemed necessary , the officer may also seek the assistance of an expert or other person ( LAW , section CARDINAL , subsection CARDINAL ) .","The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information . The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search ( LAW , DATE , subsection CARDINAL ) .","According to section CARDINAL of the Pre - trial LAW , only such evidence as may be considered relevant in the case shall be placed on record .","As regards other evidence , it is the respondent Government 's view that a police officer is under an obligation to respect the confidentiality requirement stipulated by LAW ( valtion virkamieslaki , statstj\u00e4nstemannalagen CARDINAL ) .","Section CARDINAL of ORG ( esitutkintalaki , f\u00f6runders\u00f6kningslagen CARDINAL\/CARDINAL ) stipulates that in an investigation no one 's rights shall be infringed any more than necessary for the achievement of its purpose . No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily .","Chapter CARDINAL , section CARDINAL a , of LAW provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation , the importance of the investigation and the degree of interference with the rights of the suspect or other persons subject to the measures , as well as in light of any other pertinent circumstances .","According to LAW , LAW , a seizure shall be lifted as soon as it is no longer necessary . If charges have not been brought within DATE of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants .","Chapter CARDINAL , section CARDINAL , subsection CARDINAL of LAW provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in LAW , section CARDINAL , of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed . A document may nevertheless be seized if , under section CARDINAL , subsection CARDINAL of ORG , a person referred to in LAW , Article CARDINAL , of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre - trial investigation about the matter contained in the document .","Under LAW , section CARDINAL , subsection CARDINAL of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case , unless the client consents to such testimony . Although subsection CARDINAL provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of DATE imprisonment ( or attempting or aiding and abetting such an offence ) , this exception does not extend to counsel for an accused .","Under section CARDINAL c ( CARDINAL ) of LAW ( laki asianajajista , lagen om advokater ) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity . Breach of this confidentiality obligation shall be punishable in accordance with LAW , section CARDINAL or CARDINAL , of LAW ( rikoslaki , strafflagen ) , unless the law provides for a more severe punishment on another count .","In their book \u201c ORG - trial investigation and coercive measures \u201d ( ORG pakkokeinot , GPE , DATE ) PERSON , PERSON and PERSON state ( at page CARDINAL ) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition .","The Ministry of Justice appointed a ORG on ORG ( tietoverkkorikosty\u00f6ryhm\u00e4 , arbetsgruppen f\u00f6r IT brottslighet ) which also considered the question of searches and seizures of computer files and computers by the police . On DATE ORG issued a report , which was sent out for comments to various interest groups and experts . On the basis of the working group 's report and the comments given , ORG is expected to prepare a government bill .","Chapter CARDINAL , section CARDINAL , of LAW provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force . A request which has been submitted to the court before its examination of the charges shall be considered within DATE from its reception by the court . The court shall provide those with an interest in the matter an opportunity to be heard , but the absence of anyone shall not preclude a decision on the issue . A decision reviewing a seizure is subject to a separate appeal .","According to section CARDINAL , subsection CARDINAL of the LAW ( perustuslaki , grundlagen GPE ) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation , official or other person in charge of a public function be held liable for damages , as provided in more detail by an LAW . This section is equivalent to CARDINAL of the repealed LAW of DATE ( PERSON , ORG ) , as in force at the relevant time .","Until DATE , LAW , section CARDINAL of the Penal Code provided that if a search of LOC was carried out by someone lacking the authority to do so , or if someone having such authority carried it out in an unlawful manner , he or she was to be sentenced to a fine or to imprisonment for a maximum of DATE . According to Government Bill no . CARDINAL , the provision was proposed to be repealed as \u201c in cases where the above - mentioned act is committed by a public official in the performance of his or her official duties , LAW , section CARDINAL is applicable \u201d .","Chapter DATE , section CARDINAL , subsection CARDINAL of the Penal Code provides that if a public official , when acting in his office , intentionally in a manner other than that provided above in this LAW violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not petty , he shall be sentenced for violation of official duties to a fine or to imprisonment for DATE .","Chapter DATE , LAW of LAW provides that if a public official , when acting in his office , through carelessness or lack of caution , in a manner other than that referred to in LAW , violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not petty , he shall be sentenced for a negligent violation of official duties to a warning or to a fine .","According to LAW , section CARDINAL of LAW ( laki oikeudenk\u00e4ynnist\u00e4 rikosasioissa , lag om r\u00e4tteg\u00e5ng i brottm\u00e5l CARDINAL\/CARDINAL ) , an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges .","Under LAW ( vahingonkorvauslaki , skadest\u00e5ndslagen CARDINAL ) proceedings may be brought against the ORG in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( LAW ) .","Recommendation ( DATE ) CARDINAL of ORG to member states on the freedom of exercise of the profession of lawyer provides , inter alia , as follows :","\u201c Principle I - General principles on the freedom of exercise of the profession of lawyer","... CARDINAL . All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer - client relationship . Exceptions to this principle should be allowed only if compatible with the rule of law . \u201d","ORG ( Finlands Advokatf\u00f6rbund , LOC ) noted that the case did not meet a single criterion for the lawful execution of search and seizure as set out in the case law of ORG . Further , under NORP legislation , there are no provisions affording a legal remedy against a search warrant issued by the police . A search may be carried out on the premises of a person to whom a confidentiality obligation applies provided that the object to be seized may be found there . The threshold for the execution of a search is low in the extreme and the execution of a search in and of itself interferes with the right and obligation of secrecy of a person to whom a confidentiality obligation applies .","The wording of the instructions pertaining to the search in the present case was rather expansive and no attempt was made to attend to the advocate 's confidentiality obligation . Disregard of this obligation is particularly manifest in the participation of a tax inspector and an enforcement official in the search . The confidentiality obligation of advocates was also disregarded in respect of the seizures executed in connection with the search . The hard disks of the law office 's computers , floppy disks and several notebooks pertaining to meetings with clients were seized in connection with the latter search , in addition to which data on the office secretary 's computer was copied . Subsequent to the seizure , the material was not e.g. sealed and consigned for safekeeping until a court could rule on the lawfulness of the seizure .","NORP In terms of the confidentiality obligation , the possibility of submitting the issue of a seizure to the court for review as provided for in LAW had in this case remained a dead letter . All the information deemed confidential by the advocate and his clients had been disclosed prior to the court proceedings , as the authorities examined the seized material without waiting for a court to rule on the issue .","The ORG further maintained that the police could have availed themselves of the procedure provided for in LAW , wherein the searched material would have been examined by an outside advocate who would have determined which material was related to the pre - trial investigation being conducted by the police and which was not . This procedure would have allowed for the upholding of the advocate 's confidentiality obligation as well as the client 's right to confidentiality ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-92935","languageisocode":"ENG","respondent":"RUS","branch":"ADMISSIBILITY","date":2009,"docname":"PAVEL ZAYTSEV v. RUSSIA","importance":4,"conclusion":"Inadmissible","judges":"Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by PERSON , former Representative of GPE at ORG , and subsequently by their Representative , PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","Since DATE the applicant has been working as a special investigator for important cases at ORG .","On DATE ORG of ORG started an investigation into a case concerning customs and financial fraud involving a group of companies which were allegedly affiliated with various high - ranking ORG officials .","On DATE the fraud case was assigned to the applicant , and from DATE he was in charge of the investigation team working on this case . The investigation involved surveillance and telephone interception ; the applicant claims that he also received instructions from his superior to conduct searches , if necessary without prior authorisation , under the extraordinary powers provided for in urgent cases .","On DATE the applicant , acting under his own authority , ordered a series of urgent searches . The searches were carried out on CARDINAL , DATE and DATE . CARDINAL suspects were arrested but both were released DATE .","On DATE the office of ORG notified ORG that \u201c some unlawful searches and arrests had taken place in connection with the [ fraud ] case \u201d and withdrew the case file from ORG .","ORG carried out an internal enquiry and concluded that there had been no abuse of authority on the part of the applicant .","The applicant alleged that certain documents disappeared from the case file as soon as ORG took over the case .","On DATE the Prosecutor General instituted criminal proceedings against the applicant on charges of abuse of official powers and ordering unlawful arrest ( Article CARDINAL \u00a7 CARDINAL and LAW ) , on account of the above searches and arrests . DATE and DATE the applicant was under an obligation not to leave the city . The recognisance not to leave the city was renewed on DATE and remained in force until the date of his conviction , DATE .","On DATE the Minister of the ORG sent a letter to ORG in which he contested the charges against the applicant . He alleged that the searches were necessary and that the applicant \u2019s decision to proceed without prior authorisation was made in accordance with the law and was justified by the special circumstances . He also contended that a persecution of the investigators had been orchestrated by the suspects in the fraud case , through certain contacts within ORG , and that the same persons had attempted to have the fraud case file closed . The Minister of the ORG requested ORG to end the proceedings against the applicant .","On DATE the Prosecutor General discontinued criminal proceedings in the fraud case .","On DATE the applicant was indicted on charges of exceeding official powers and ordering unlawful arrest .","On DATE a newly appointed Minister of the ORG wrote to ORG restating , in substance , his predecessor \u2019s letter of CARDINAL DATE .","On DATE the Deputy Prosecutor General replied to the Minister of the ORG that the criminal proceedings against the applicant had been instituted lawfully and reasonably .","On DATE the criminal case against the applicant was submitted to ORG . At first ORG President assigned the case to judge GPE , but owing to the latter \u2019s heavy workload it was transferred to judge GPE","On DATE the President of ORG of ORG made an official inquiry about the state of proceedings against the applicant , in reply to which ORG allegedly stated \u201c I will lock him up \u201d .","On DATE ORG issued a ORG entitled \u201c Parliamentary Question to the Prosecutor General , PERSON , about the Circumstances surrounding the Investigation into the case concerning ORG into the GPE \u201d . The ORG read as follows :","\u201c On DATE ORG of ORG opened criminal proceedings concerning the fraudulent import of furniture into GPE through a shell [ company ] , following a finding by ORG that there had been a breach of customs rules . ... ORG started its investigation . ORG and ORG set up a joint investigation group which made important progress in investigating the facts of furniture smuggling ...","Subsequently the case file was reclaimed by ORG and the case was transferred to the special investigator for important cases at ORG office , who decided to terminate the proceedings for a lack of corpus delicti . ORG also instituted criminal proceedings against P. PERSON , the investigator of ORG who investigated the [ case of fraud ] , and charged him with having ordered searches and arrests in breach of the procedure prescribed by law , ...","...","To ensure a fair and objective assessment of this situation , and further to a proposal by ORG , a joint expert group was set up , in which ORG , ORG of GPE and ORG took part .","...","On DATE ORG of the State Duma heard the report of the joint expert group . The President of ORG , the acting Chief of ORG and the experts representing these agencies , who were all present at the meeting , expressed their disagreement with the termination of the [ fraud investigation ] , having noted that the special investigator for important cases at ORG had failed to examine a number of substantive issues ...","Having regard to the above , the [ State Duma ] requests that [ the Prosecutor General ] resumes criminal proceedings in the case concerning the smuggling of furniture into GPE ... \u201d","ORG did not resume the criminal proceedings requested by ORG . These proceedings were resumed DATE .","In the meantime the criminal case against the applicant had continued . On DATE ORG , composed of judge PERSON and CARDINAL lay assessors , examined the case and acquitted the applicant of all charges .","On DATE ORG of GPE granted an appeal by the public prosecutor and reversed the acquittal , on the grounds that the court \u2019s conclusion had been self - contradictory . It remitted the case for fresh examination by the first - instance court in a different composition .","On DATE that court , composed of PERSON as judge , and CARDINAL lay assessors , PERSON and PERSON , began to examine the case . PERSON and PERSON were subsequently replaced for unknown reasons . On DATE the hearing was adjourned on the grounds of the applicant \u2019s illness . On DATE the court , composed of judge GPE and CARDINAL newly appointed lay assessors , PERSON and PERSON , resumed the hearing .","During the hearing on DATE judge PERSON invited the public prosecutor to present evidence for the prosecution . The prosecutor replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted . On DATE , DATE , he challenged Ms GPE on the grounds of bias which she had allegedly shown when questioning CARDINAL of the victims . Other parties to the proceedings , including the victim in question , objected to the challenge . On DATE the lay assessors dismissed the challenge , following which the public prosecutor challenged both lay assessors . The parties to the proceedings objected to the challenge and it was dismissed . On DATE the public prosecutor filed another challenge to the lay assessors on the grounds of bias , which was also dismissed by PERSON on DATE .","On DATE both lay assessors filed a motion to withdraw from the proceedings .","On DATE the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records . The court refused this motion , on the grounds that the minutes could be accessed after their completion .","On DATE PERSON allowed the withdrawal of both lay assessors , stating as follows :","\u201c At the hearing the lay assessors I and D declared their withdrawal from the proceedings , on the grounds that they were unable to participate in the examination of the case because of the [ public prosecutor \u2019s ] biased and discourteous behaviour towards them and due to the perverse environment at the hearing , for which he is responsible and which made them ill . \u201d","ORG President , PERSON , then during the proceedings called PERSON to her office and asked her about the details of the proceedings , putting certain questions regarding the conduct of the trial and the decisions on the above motions .","The parties disagree on the circumstances of PERSON withdrawal from the case . According to the applicant , PERSON removed PERSON from sitting in the case on DATE , DATE after the lay assessors\u2019 withdrawal . According to the Government , the case remained with PERSON until DATE , when it was withdrawn from her on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for DATE leave from DATE to DATE , which she filed on DATE .","On DATE the ORG President assigned the case to judge M.","On DATE ORG , composed of judge PERSON and lay assessors Mr B. and PERSON , began to examine the case . On DATE the court found the applicant guilty of having exceeded his official powers . The other charge had been dropped by the prosecutor . The applicant was sentenced to CARDINAL years\u2019 imprisonment , suspended , with DATE probation . The court also decided that an injunction against holding office in the bodies of ORG was not necessary .","The applicant appealed against the judgment to ORG of GPE , pleading not guilty and claiming that his conviction was based on the wrong assessment of evidence and misinterpretation of LAW .","While the applicant \u2019s appeal was pending , on DATE Ms GPE lodged a complaint with ORG , in which she referred to certain alleged procedural irregularities in the criminal case against the applicant . Her complaint read as follows :","\u201c I request that the President of ORG , PERSON , be charged with a disciplinary offence for exerting unlawful pressure on me in DATE , when I was presiding in the criminal proceedings against PERSON . She demanded that I give an account on the merits of this case while its examination was underway , and that I inform her about the decisions the court was about to take ; she even called me out of the deliberations room for that purpose . [ She ] insisted on removing certain documents from the case file , forced me to forge TIME of the hearing , and also recommended that I ask the lay assessors not to turn up for the hearing . Following my refusal to bow to this unlawful pressure [ she ] removed me from the proceedings and transferred the case to another judge .","As to the particular circumstances , they were as follows .","I was appointed to examine the case against GPE and the court , acting in a bench with CARDINAL lay assessors , NORP and NORP , started its examination .","Having started the trial , the court questioned a number of victims . The public prosecutor who was representing ORG clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing . For no reason he challenged me as a judge , the lay assessors and the whole composition of the court . His motions were made in a manner that was humiliating , offensive and insulting to the court , and were clearly untrue . Soon after his challenge was rejected by the court , ORG President PERSON called me to her office .","In violation of LAW and section CARDINAL of the Law \u201c On the Status of a Judge in the GPE \u201d , ORG President demanded an explanation from me as to why the lay assessors and I were putting CARDINAL or other question to the victims in the trial and why CARDINAL or another motion by the parties was refused or accepted . In my presence ORG President had a telephone conversation with the [ First Deputy Prosecutor General ] , who had issued the indictment against GPE . PERSON informed [ the First Deputy Prosecutor General ] that the judge was being called to account with regard to what was going on in the proceedings .","Back in my office I told the lay assessors what had happened . By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor , and they therefore considered it impossible to continue to take part in the proceedings . CARDINAL of the assessors , PERSON , was seeking medical assistance due to a health problem . For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of ORG .","At the court \u2019s following meeting the lay assessors announced their withdrawal on the above grounds . Their written requests were given to me to be enclosed in the file , and the court adjourned for deliberations .","I was again called from the deliberations room by ORG President , PERSON . This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take . Her main point was that there should have been no mention in the ORG written requests that the reason for their withdrawal was pressure being exerted on the court . ORG President also insisted on excluding from TIME any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure . In essence , PERSON was pushing me to forge the case file . Moreover , she proposed that I ensure that the assessors did not turn up for the hearing , literally \u2018 ask them not to come to the court any ORG . The aim was obvious \u2013 if the assessors [ did ] not appear the proceedings themselves [ would ] fall apart . It seemed that for some reason [ she ] did not want the case to continue to be examined in this composition . The unlawfulness of ORG President \u2019s actions was obvious .","I followed none of her instructions . The lay assessors\u2019 requests were included in the file , the court allowed their withdrawal and stated that the reason for it was the pressure being applied by ORG . The hearing TIME reflected everything that happened in the proceedings .","Once I signed [ the minutes ] PERSON withdrew the case from me and transferred it to another judge without stating reasons .","I consider that such acts on the part of ORG President , PERSON , are incompatible with the status of a judge and undermine judicial authority , and are thus destructive for justice , for which she must be held liable . This is what I hereby request from ORG of GPE . \u201d","The applicant was not notified of this complaint . In DATE Ms GPE , furthermore , gave CARDINAL radio interview and CARDINAL newspaper interviews reiterating the above allegations and criticism .","Following this , on DATE PERSON , one of the lay assessors who had , on DATE , withdrawn from the criminal case against the applicant sent a letter to ORG which read as follows :","\u201c Further to the publication of an interview with judge PERSON ... I decided to write you because I participated in GPE \u2019s case as a lay assessor .","I entirely support everything judge PERSON said in her interview .","During the trial the [ public prosecutor ] did everything to prevent the court from hearing the case . He was rude and aggressive to the court ; in his interventions and requests he deliberately misrepresented what was going on in the proceedings , and he repeatedly filed objections to the court \u2019s composition . These motions were made in a humiliating , even obnoxious manner . By doing so he was exerting pressure on the court , to force it to give a judgment that was convenient to him , or , alternatively , to set the court hearing at naught .","I was appalled by that , but what was my surprise when I learned about the pressure also being exerted on judge GPE by the court President !","We , the assessors , were there when , during the interval , judge GPE received a phone call from the court President to come and see her . After some time judge GPE returned , she was upset and depressed . To our question she replied that [ the court President ] had accused her that the court was reluctant to examine the case ; that the lay assessors were asking the victims the wrong questions ; and that she had suggested that judge GPE arrange for the lay assessors not to appear at the court proceedings .","... On TIME ... both PERSON and I decided to withdraw from the proceedings .","At the start of the hearing on DATE the public prosecutor , before he was called by the court , began with a motion in which he , in essence , again degraded and insulted me by repeating [ a ] comment made by [ the victim ] outside the courtroom about me ... he did not react to the reproof by the judge .","After that ... I declared that I was withdrawing from sitting in the proceedings on the grounds of the public prosecutor \u2019s rude and offensive behaviour , which could not be defined as anything but pressure on the court . After that PERSON also withdrew .","Before the trial I had never met anybody [ involved in the proceedings ] : not the judge , not [ the applicant ] , not the public prosecutor , not the defence counsel ; I had no personal interest in the case . The public prosecutor \u2019s behaviour was therefore inexplicable and came as a shock to me .","At TIME judge PERSON was called out from the deliberations room , where the court was taking a decision . It was the court President who called her . ...","On DATE ... judge PERSON told us that the court President had shouted at her , demanding that she refrain from enclosing [ the assessors\u2019 ] withdrawal requests in the file and not refer in the court \u2019s decision to the reason for the withdrawal .","PERSON and I were shocked by what was going on . First it was the public prosecutor who put pressure on us at the hearing , and then it turned out that the [ court President ] joined in .","What a surprise it was when the [ court \u2019s Deputy President ] came into the deliberations room and started trying to persuade me and PERSON not to comment on the public prosecutor \u2019s behaviour in the court decision , but to state in our requests and in the court decision that we withdrew on medical grounds . She said that they would invite me and PERSON to take part in other proceedings .","PERSON and I refused to change our requests , and after the Deputy President had left the court issued the decision [ to allow withdrawal ] which reflected what had happened .","I have been a lay assessor before , I have taken part in several other proceedings , but this was the first time that I came across such pressure being exerted on the court .","I request you to look into the above events and to take action against the [ court \u2019s President and her Deputy ] . \u201d","On DATE the other lay assessor who had withdrawn , PERSON , sent a similar letter to ORG .","Following PERSON complaint of DATE , the High Judiciary Qualification Panel appointed PERSON , a judge of ORG , to examine the allegations against PERSON , ORG President . The Government submitted a copy of an internal report prepared by PERSON and submitted to ORG , which contained the following conclusions :","\u2013 during the hearing of the criminal case against the applicant judge PERSON herself consulted PERSON , seeking advice on the conduct of the proceedings in view of the public prosecutor \u2019s behaviour ;","\u2013 further communications between judge PERSON and PERSON and , on another occasion , the deputy court president , took place in private and their content could not be established ;","\u2013 there was insufficient evidence that PERSON exerted pressure on judge PERSON , since both PERSON and the deputy court president denied the allegations ;","\u2013 Ms Yegorova transferred the criminal case file against the applicant to another judge on the grounds that PERSON \u201c was unable to conduct the court hearing , her procedural acts were inconsistent , [ she acted ] in breach of the principle of adversarial proceedings and equality of arms , she stated her legal opinion on the pending criminal case and she attempted to seek the court president \u2019s advice on that case , and in view of the existence of confidential reports by relevant agencies to ORG President with regard to judge GPE , in connection with the examination of GPE \u2019s case and other criminal cases \u201d .","On DATE the High Judiciary Qualification Panel reported to the President of ORG their findings concerning the complaint against PERSON . The President decided , without elaborating on the reasons , that there were no grounds for charging PERSON with a disciplinary offence .","On DATE the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against PERSON . No copy of this decision was provided to the ORG . The applicant was not informed about the enquiry conducted by ORG , or about its findings . On DATE PERSON was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary .","On DATE the High Judiciary Qualification Panel wrote a letter to both lay assessors stating that no grounds had been found to bring disciplinary proceedings against the President of ORG .","On DATE , following disciplinary proceedings against Ms GPE , the High Judiciary Qualification Panel decided that her office as a judge should be terminated on account of her statements in the interviews given in DATE .","On DATE ORG of GPE examined the applicant \u2019s appeal against his conviction . The court , composed of CARDINAL judges , upheld the judgment of DATE by a majority , having found that the applicant \u2019s conviction was lawful and wellfounded . Judge PERSON expressed a dissenting opinion stating that the applicant \u2019s actions had no constituent elements of a crime as provided for by LAW .","On DATE ORG sent an official enquiry to the Deputy Minister of the ORG about the applicant \u2019s continued employment in ORG , in spite of his conviction for abuse of powers . ORG reviewed the applicant \u2019s file and considered that it was not necessary to dismiss the applicant , in view of the court \u2019s decision to dispense with an injunction against holding office in the bodies of ORG .","On DATE the First Deputy Prosecutor General sent an official letter of warning to the Minister of the ORG . The letter referred to the generally unsatisfactory performance by ORG in investigating criminal cases and pointed out certain instances of breach of procedure . Among the latter the prosecutor \u2019s office indicated the \u201c appalling example \u201d of the applicant \u2019s continued employment in ORG after his conviction for abuse of power .","On DATE the acting First Deputy Minister of the ORG replied to the prosecutor \u2019s warning . In so far as it concerned the applicant , he relied on the decision by the first - instance court , upheld by ORG , to dispense with an injunction against the applicant holding office in ORG entities and informed the prosecutor \u2019s office that the applicant had not been dismissed .","LAW of LAW of the Russian Soviet Federative Socialist Republic , in force at the material time , provided that in urgent cases an investigating officer could exceptionally order and carry out a search without prior authorisation by the prosecutor . The prosecutor was to be notified within TIME of a search carried out under this provision .","LAW of the Russian Federation provides :","\u201c Acts by an official which clearly go beyond his or her authority , if they incur a substantial breach of individual rights and the legitimate interests of a person or organisation , or of state or public interests protected by law","\u2013 are punishable by a fine of MONEY or of CARDINAL times the DATE salary or other income of the convicted , or by a prohibition to hold certain official posts or to perform certain official functions for DATE , or by arrest for DATE , or by imprisonment of DATE . \u201d","The Code of Criminal Procedure of the Russian Federation provides :","\u201c CARDINAL . The case must be examined by CARDINAL and the same judge or by a court bench in one and the same composition .","If CARDINAL of the judges is no longer able to take part in the hearing he or she must be replaced by another judge , and the court hearing must restart from the beginning . \u201d","Law no . ORG of DATE \u201c On ORG in the NORP Federation \u201d provides :","\u201c CARDINAL . The ORG President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by LAW , carries out the following functions :","( CARDINAL ) organises the court \u2019s work ;","...","( CARDINAL ) NORP distributes duties between the President \u2019s deputies and , in accordance with the procedure provided for by ORG , between the judges ; ... \u201d","The instruction on ORG internal document management in force at the material time provided that the court President was responsible for the court \u2019s clerical and office management .","As a matter of common practice , a court President distributes cases lodged with a court between the judges of that court .","The Code of Criminal Procedure of the Russian Federation provides :","\u201c ...","... the city courts of [ GPE and GPE ] , ... have jurisdiction in criminal proceedings concerning :","( CARDINAL ) NORP criminal offences provided for by Articles ... , CARDINAL - CARDINAL , ... of LAW of GPE ;","( CARDINAL ) NORP criminal cases remitted to these courts in accordance with Articles DATE and CARDINAL of this Code ;","...","ORG of GPE has jurisdiction in the criminal cases indicated in LAW and other criminal cases that fall under its jurisdiction in accordance with LAW and LAW . \u201d","\u201c A criminal case against a member of ORG , a deputy of ORG or a judge of a federal court is to be examined by ORG of GPE at their request , to be submitted before the beginning of the court examination in their case . \u201d","\u201c A criminal case must be examined by a court in the place where the crime has been committed , except for the cases provided for by LAW . \u201d","\u201c CARDINAL . When the judge who decides on the scheduling of a hearing establishes that the case ... falls outside the jurisdiction of that court , he or she shall issue an order to remit the case according to jurisdiction .","... \u201d","\u201c CARDINAL . Territorial jurisdiction in a criminal case may be changed :","( CARDINAL ) at a party \u2019s request \u2013 if it has successfully challenged , in accordance with LAW , the entire court composition of the relevant court .","...","Territorial jurisdiction of a criminal case may only be changed before the beginning of the court examination . \u201d","\u201c CARDINAL . A challenge brought against several judges or the whole court composition must be decided upon by the same court in its entire composition , by a majority vote .","...","If the challenge to a judge , several judges or the whole court composition is granted the criminal case , the request or the complaint must be transferred to another judge or court composition in accordance with the procedure provided for by this LAW . \u201d","\u201c ...","The grounds for quashing of a judicial decision [ by the cassation instance ] are , in any event , as follows :","...","( CARDINAL ) NORP judgment held by an unlawful court composition ... \u201d","\u201c The court examining the case as a cassation instance may quash the [ first instance ] conviction and terminate the proceedings if there exist grounds provided for by this Code . \u201d","\u201c CARDINAL . Criminal case is remitted for a fresh examination :","...","( CARDINAL ) to the same court that held the [ first instance ] judgment but in a different composition ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-71085","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"GRABINSKI v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .","The applicant \u2019s family owned a plot of land with a surface area of CARDINAL sq . QUANTITY in the very centre of GPE , at the junction of FAC and FAC . The applicant is CARDINAL of the heirs of the owners of that property .","By virtue of the Decree of DATE on the Ownership and Use of Land in GPE ( \u201c the DATE Decree \u201d ) the ownership of all private land was transferred to GPE .","On DATE the applicant \u2019s family filed an application for the grant of the right of temporary ownership ( w\u0142asno\u015b\u0107 czasowa ) of the plot of land pursuant to section CARDINAL of the CARDINAL Decree ( \u201c the DATE application \u201d ) . On DATE ORG ( PERSON ) refused the application and ruled that , consequently , the ownership of all the buildings located on the plot of land at issue be transferred to the ORG . On DATE the competent Minister upheld that decision .","In the meantime , the Law of DATE on ORG entered into force on DATE . According to section CARDINAL \u00a7 CARDINAL of that PERSON , the ownership of all property previously held by the local governments was transferred to the ORG .","In DATE the ORG constructed ORG on the part of the plot which was formerly owned by the applicant \u2019s family .","Following the re - establishment of the local government in GPE , on CARDINAL DATE the ownership of a part of the plot of land previously owned by the applicant \u2019s family was transferred to GPE by operation of the law .","At present , the plot of land of QUANTITY m , formerly owned by the applicant \u2019s family , is divided into CARDINAL separate parts . The first part with a surface area of CARDINAL sq . m. is owned by GPE and constitutes a part of a larger plot no . CARDINAL with a surface area of QUANTITY m. The second part with a surface area of CARDINAL sq . m is owned by the ORG and administered by ORG ( ORG ) . Currently , the latter plot is leased to a certain company and used as a car park .","On DATE ORG PERSON ) issued a decision declaring that as of CARDINAL DATE the \u201c ORG was granted the right of perpetual use of the plot of land no . CARDINAL with a surface area of QUANTITY m located at no . CARDINAL FAC . On the strength of the same decision the ownership of the buildings attached to that plot , including LOC , was transferred to the \u201c LOC company against the payment of a fee . On the relevant date the company was owned by GPE .","On DATE PERSON , another heir of the applicant \u2019s family , filed with ORG ( Minister PERSON i GPE ) an application for annulment of the administrative decisions refusing the grant of the temporary ownership . On DATE the Minister quashed the decisions of ORG of DATE and the relevant Minister of DATE . Consequently , the competent administrative authorities were required to rule on the DATE application for the grant of the right of perpetual use , which replaced the former temporary ownership . The applicant and other heirs of the previous owners were , as their legal successors , the parties to the subsequent proceedings .","Following the above decision , on DATE the Minister of Planning and Construction awarded the applicant and other heirs compensation in the amount of PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL . It appears that that decision has not been enforced .","On DATE the Minister of Planning and Construction instituted ex officio proceedings with a view to having his earlier decision of DATE annulled . On DATE the Minister declared the decision of DATE null and void . On DATE the applicant and PERSON made an application to the President of ORG ( Prezes PERSON i PERSON ) for reconsideration ( wniosek o ponowne rozpatrzenie sprawy ) of the decision of DATE . On DATE the President of that ORG upheld the decision of DATE . The applicant appealed against that decision and the earlier decisions of the Minister of Planning and Construction to ORG ( PERSON ) . On DATE ORG ordered that the enforcement of the decision of DATE be stayed .","On DATE ORG quashed both contested decisions , considering that there were no grounds on which to hold that the decision of DATE could be declared null and void . As a consequence of that judgment , the DATE application for the grant of the right of perpetual use filed by the applicant \u2019s family was yet to be examined .","On DATE ORG ) decided ex officio to stay the proceedings until the termination of the proceedings instituted by ORG in DATE ( see above ) . The applicant appealed against that decision . On DATE ORG ( PERSON ) quashed the decision of DATE .","On DATE the applicant wrote a letter to ORG , inquiring about the progress in the proceedings following the decision of ORG of CARDINAL DATE . He demanded an explanation about the delays in the proceedings .","On DATE ORG decided to discontinue the proceedings , considering that they had become devoid of purpose . It observed that the DATE application for the grant of the right of perpetual use had been already dismissed , and that the application for the annulment of the latter decision had failed . The applicant appealed against that decision .","On DATE ORG of Appeal quashed the impugned decision and remitted the case for re - examination .","On DATE the applicant filed with ORG a complaint about the inactivity of ORG .","On DATE ORG stayed the proceedings until the termination of the proceedings before ORG concerning an appeal against the decision of the President of ORG of DATE .","On DATE ORG ordered ORG to issue a decision in the case by DATE .","On DATE , following the judgment of ORG of DATE , the applicant requested the GPE Mayor to grant him the right of perpetual use .","In DATE the Mayor of GPE began negotiations with the applicant and other heirs of the former owners with a view to renouncing their claims to the plot of land at issue in exchange for an alternative plot . On DATE the applicant and other heirs accepted the Mayor \u2019s proposal . However , on DATE the Deputy Mayor of GPE informed them that he had to withdraw from the negotiations as there were grounds on which the DATE application could be dismissed .","On DATE ORG refused the application . It observed that the plot of land of specific surface and shape , which had been the subject of the application , was not in existence at the time of the issuing of the present decision . Moreover , it noted that on part of the plot of land formerly owned by the applicant \u2019s family , the ORG had constructed LOC . Thus , it considered that it was not possible to mark off the plot of land which was the subject of the application . In addition , ORG noted that the \u201c ORG company had been granted the right of perpetual use of the plot of land which partly overlapped with the plot of land at issue by virtue of a decision of DATE .","On DATE PERSON , CARDINAL of the heirs of the applicant \u2019s family , lodged an appeal against the decision of ORG .","On DATE ORG upheld the contested decision .","On DATE PERSON lodged an appeal with ORG against the decision of ORG .","On DATE ORG quashed the impugned decision and the earlier decision of ORG . It considered that section DATE Decree laid down CARDINAL requirements which had to be met in order to grant the right of perpetual use of land , i.e. the filing of the application in time and the compatibility of the intended use of the land with the local development plan . ORG observed that the relevant application had been lodged in time . However , the administrative authorities had not at all examined the second requirement laid down in DATE Decree , but had instead based their decisions on grounds which were not provided in the relevant law . Lastly , ORG instructed the administrative authorities to examine the heirs\u2019 intentions as to the use of the land at issue . It further emphasised that if the intended use was compatible with the local development plan , the administrative authorities were under an obligation to grant the application .","On DATE ORG informed the applicant and other heirs that due to the complex nature of the case a decision would be issued by DATE . On DATE the applicant lodged with ORG a complaint about the inactivity of ORG .","On DATE the applicant informed the ORG that he intended to use the plot of land at issue in accordance with the local development plan .","On DATE the Mayor of GPE , who in the meantime had assumed the competences of ORG , issued his decision in the case . He refused the application , considering that the use of the plot by the heirs of the former owners would not be compatible with the local development plan adopted on DATE . In particular , the Mayor found that CARDINAL part of the plot at issue was designated partly for walkways and green areas , and partly for the junction of FAC and FAC which was an important area for public transport in the whole city centre . In respect of the other part of the plot at issue , the Mayor considered that ORG stood on it and that it was not feasible to detach from the existing larger plot a part which was owned by the applicant \u2019s family . He also had regard to LAW ( ustawa o gospodarce nieruchomo\u015bciami ) which provided that in the case of a plot of land with a building situated on it , the grant of the right of perpetual use of the plot was to be effected with the simultaneous acquisition of the buildings located on the plot . However , the building of LOC was owned by the \u201c LOC company and could not be split so as to reflect the borders of the estate formerly owned by the applicant \u2019s family . Furthermore , the application could not be granted because the right of perpetual use of the plot of land which partly overlapped with the plot at issue , had been awarded to the \u201c PERSON \u201d company on the strength of the decision of CARDINAL DATE .","On DATE the applicant filed an appeal against the decision of the Mayor of GPE to ORG . On DATE the applicant lodged with ORG a complaint about the inactivity of ORG . It appears that the proceedings are pending .","On DATE the applicant requested ORG to grant him the right of perpetual use of the plot of land owned by ORG . On DATE he lodged with the GPE Governor a complaint about the inactivity of ORG .","On DATE ORG asked ORG to provide the relevant documents concerning the status of the property at issue . On DATE the relevant documents were submitted to ORG . On DATE and DATE ORG requested ORG to submit some additional documents .","On DATE the applicant filed with the GPE Governor a second complaint about the inactivity of ORG .","On DATE ORG requested ORG to provide information as to the use of the plot of land at issue as provided in the local development plan . The requested information was submitted on CARDINAL DATE .","On DATE the GPE Governor ordered ORG to issue a decision in the applicant \u2019s case within DATE .","On DATE ORG informed the applicant that due to the complex nature of the case a decision would be issued by DATE .","On DATE ORG refused to grant the right of perpetual use in respect of the plot owned by ORG , considering that that plot was designated in the local development plan for a street , i.e. for public use .","The applicant appealed against that decision .","On DATE the GPE Governor upheld the decision of ORG . PERSON lodged an appeal against the decision of the Governor with ORG .","On DATE ORG quashed the decision of the GPE Governor of DATE and the earlier decision of ORG as they were issued in breach of section DATE Decree . It considered that the use of the plot of land at issue by the successors of the former owners would not be incompatible with the local development plan .","On DATE ORG informed the applicant that it would not be possible to conclude the proceedings within the time - limit specified in LAW due to the need to undertake further examination of the application . It appears that the proceedings are pending .","On DATE PERSON , CARDINAL of the heirs , filed with ORG an objection against the auction for the sale of shares in the \u201c ORG company .","On DATE the applicant made an application to ORG of Appeal for annulment of the decision of ORG of DATE ( see above part CARDINAL ) . On DATE ORG refused to institute the proceedings . On DATE the applicant filed an application for reconsideration of that decision . On DATE ORG decided to stay the proceedings until the termination of the proceedings pending before ORG ( see part CARDINAL . above ) . On DATE ORG quashed its earlier decision of DATE . On DATE it refused that application . The applicant filed an application for reconsideration of the matter . On CARDINAL DATE ORG quashed its earlier decision and refused to institute proceedings for the annulment . The applicant appealed against that decision to ORG .","On DATE ORG stayed the proceedings until the termination of the proceedings concerning the application for annulment of the Minister of Planning and Construction \u2019s decision of DATE . The proceedings were resumed on DATE . On DATE ORG quashed the decision of ORG of CARDINAL DATE on procedural grounds . Consequently , ORG was to examine the applicant \u2019s application for annulment again .","On DATE and DATE the applicant requested ORG to expedite the proceedings .","On DATE the ORG quashed its earlier decision of CARDINAL DATE and declared null and void the decision of ORG of DATE as having been issued in manifest breach of the law . It considered that the decision of CARDINAL DATE had been issued in a flagrant violation of the rights of the heirs of the former owners , as their application for the grant of the right of perpetual use was pending at the material time . It further observed that the heirs\u2019 claims to the plot of land formerly owned by their family had to be examined prior to the decision on the use of land by the \u201c ORG company .","In accordance with the Decree of DATE on the Ownership and Use of Land in GPE ( dekret o w\u0142asno\u015bci i u\u017cytkowaniu grunt\u00f3w na obszarze QUANTITY st . PERSON , \u201c the DATE Decree \u201d ) the ownership of all land in GPE was transferred to GPE .","The CARDINAL Decree provided , in so far as relevant :","\u201c Section CARDINAL . Buildings and other objects located on the land , which is being transferred to the municipality \u2019s ownership , remain the property of those who have owned them so far , unless specific provisions provide otherwise .","...","Section CARDINAL . ( CARDINAL ) The owner of a plot of land ... can within DATE after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease ( wieczysta dzier\u017cawa ) with a peppercorn rent ( czynsz symboliczny ) . ...","( CARDINAL ) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan ( plan zabudowania ) . ...","( CARDINAL ) In case the request is refused , the municipality shall offer the person entitled , as long as it has spare land in its possession , a perpetual lease of land of equal value , on the same conditions , or the right to construct on such land .","( CARDINAL ) In case no request , as provided for in paragraph ( CARDINAL ) , is filed , or the former owner is for any other reasons not granted a perpetual lease or the right to construct , the municipality is obliged to pay compensation pursuant to LAW .","Section CARDINAL . In case the former owner is not granted the right to a perpetual lease or the right to construct , all buildings located on the land shall become the property of the municipality , which is obliged to pay , pursuant to LAW are fit to be used or renovated .","Section CARDINAL .","...","( CARDINAL ) The right to compensation begins to apply DATE after DATE of taking the land into possession by the municipality of GPE and expires DATE after that date . ... \u201d","Pursuant to section CARDINAL \u00a7 CARDINAL of the Law of CARDINAL DATE on ORG which entered into force on DATE , the ownership of all property previously held by the local governments was transferred to the ORG .","In DATE the local government was re - established . According to the section CARDINAL \u00a7 CARDINAL of the LAW DATE the ownership of the land which had previously been held by ORG and which was within the administrative territory of municipalities , was transferred to the latter .","Under LAW of DATE introducing LAW ( prawo rzeczowe ) and LAW , the right to construct and the right to a perpetual lease could be transferred into temporary ownership ( w\u0142asno\u015b\u0107 czasowa ) .","Section CARDINAL of the Law of DATE on ORG ( Ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with the right of perpetual use ( u\u017cytkowanie wieczyste ) .","The right of perpetual use is defined in Articles CARDINAL et seq . of the DATE LAW as amended ( PERSON ) . It is an inheritable and transferable right in rem which , for DATE , gives a person the full benefit and enjoyment of property rights attaching to land owned by ORG or municipality . It has to be registered in the court land register in the same way as ownership . The transfer of that right , like the transfer of ownership , can be effected only in the form of a notarised deed , on pain of it being void ab initio . The \u201c perpetual user \u201d ( u\u017cytkownik wieczysty ) is obliged to pay ORG ( or the municipality , as the case may be ) an DATE fee which corresponds to a certain percentage of the value of the land in question .","In DATE Law on Transforming Perpetual Use Vested in Individuals into Ownership ( ustawa o przekszta\u0142ceniu prawa u\u017cytkowania wieczystego przys\u0142uguj\u0105cego osobom fizycznym w prawo w\u0142asno\u015bci ) was enacted . The law guarantees individuals who acquired perpetual use of property before DATE the right to have that right transformed into ownership . LAW ( CARDINAL ) of that law provides that individuals who acquired the right to perpetual lease LAW decree are entitled to such transformation free of charge , regardless of when they acquired their right to a perpetual lease . Requests for the transformation could have been submitted until DATE .","LAW lays down time - limits ranging from DATE to DATE for dealing with a case pending before an administrative authority . If these time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new time - limit . Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent such delays in the future .","On DATE a new LAW DATE on ORG ( \u201c the DATE LAW ) came into force .","According to the provisions of LAW , a party to administrative proceedings may , at any time , lodge with ORG a complaint about inactivity on the part of an authority obliged to issue an administrative decision .","Section CARDINAL of the PERSON provides :","\u201c When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . \u201d","Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity is legally binding on the authority concerned . If the authority has not complied with the decision , the court may , under section CARDINAL of the DATE Act , impose a fine on it and may itself give a ruling on the right or obligation in question ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61454","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2003,"docname":"CASE OF LEWIS v. THE UNITED KINGDOM","importance":4,"conclusion":"Violation of Art. 8;Violation of Art. 13","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant is a GPE national , who was born in DATE and is currently serving a sentence of imprisonment in GPE .","The applicant and his wife frequently travelled between various NORP countries . On DATE , the Chief Constable of GPE authorised the installation of covert recording devices at the applicant 's cottage and this was carried out on DATE . ORG for a further DATE surveillance was granted on DATE .","TIME of tapes were obtained between the period of DATE to DATE , on which latter date the applicant and his wife were arrested . The transcripts of the taped conversations made up the bulk of the case against the applicant .","At trial , the applicant 's defence alleged that the recorded discussions , which occurred while he and the others concerned were under the influence of drugs , were \u201c drug - crazed ramblings \u201d and challenged their admissibility . A \u201c voir dire \u201d took place from DATE to DATE , during which the defence made submissions concerning the procedure for authorisation of the surveillance and seeking inter alia to exclude irrelevant or prejudicial material under sections CARDINAL of ORG PACE ) . By agreement , the transcript evidence was reduced from CARDINAL to CARDINAL files and an agreed schedule was adopted by all counsel concerning the occasions on which the conversations occurred at the same time as drug taking . In summing up to the jury at the conclusion of the trial , the judge directed their attention to the fact that the supposedly incriminating statements taped at the cottage were or may have been the product of the participants ' intoxicated state and that it was for them to assess whether despite the drugs the defendants were expressing rational , genuine thoughts , real ideas , plans or arrangements .","On DATE , the applicant was convicted of charges inter alia of conspiracy to import controlled drugs and possession of controlled drugs in connection with importation of marijuana and cocaine from overseas . He was sentenced to a total of DATE imprisonment . A confiscation order was imposed on him on DATE in the sum of MONEY ( GBP ) .","On DATE , a single judge of ORG refused an extension of time to appeal against sentence and refused leave to appeal against conviction , noting that no satisfactory or sufficient reason had been given for DATE delay in lodging the application . The applicant 's renewed application was refused by ORG on DATE .","At the relevant time , ORG of DATE on the use of equipment in police surveillance operations provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices . The Guidelines were available in the library of ORG and were disclosed by ORG on application .","In each case , the authorising officer had to satisfy himself that the following criteria were met : ( a ) the investigation concerned serious crime ; ( b ) normal methods of investigation had been tried and failed , or had been , from the nature of things , unlikely to succeed if tried ; c ) there must have been good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism and d ) the use of equipment was operationally feasible .","The CARDINAL Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on CARDINAL DATE .","NORP Since DATE , these controls have been augmented by Part II of ORG ( \u201c RIPA \u201d ) . In particular , covert surveillance in a police cell is now governed by sections CARDINAL ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police ."],"violated_articles":["13","8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-58105","languageisocode":"ENG","respondent":"FRA","branch":"CHAMBER","date":1997,"docname":"CASE OF PIERRE-BLOCH v. FRANCE","importance":2,"conclusion":"Not necessary to examine Art. 14","judges":"C. Russo;John Freeland","text":["In the general election of CARDINAL and DATE Mr PERSON stood as a candidate for ORG pour la d\u00e9mocratie fran\u00e7aise \u2013 UDF ) in the CARDINALth administrative district of GPE and was elected as a member of ORG .","On DATE the applicant submitted his campaign accounts to ORG .","ORG gave its decision on DATE . To the expenditure of MONEY ( ORG ) declared by the applicant it added a sum of ORG representing the cost of CARDINAL issues of a magazine called ORG ( \u201c Our GPE DATE \u201d ) that was published by PERSON between DATE , taking the view that \u201c there [ could ] be no doubt , regard being had to their dates , frequency and , more especially , content , that the publications [ had ] had an undeniable electoral purpose \u201d .","The ORG also added the cost of an opinion poll ( ORG CARDINAL ) conducted on CARDINAL DATE among voters in the CARDINALth administrative district that had been commissioned by ORG pour la R\u00e9publique \u2013 RPR ) , on the grounds that \u201c the main purpose of the poll [ had been ] to determine who was the best candidate to put up against the outgoing NORP member of ORG and the poll [ had shown ] Mr PERSON to be at a clear advantage , with the result that he [ had been ] backed by both the ORG and the RPR \u201d . The poll \u201c also investigated voters\u2019 expectations and was therefore designed to find out how the election campaign should be slanted , since the concerns expressed by the majority were addressed at length in the published election material [ referred to above ] \u201d .","As it also noted that the magazine CARDINAL Ind\u00e9pendant had campaigned in favour of CARDINAL candidates , including the applicant , ORG added CARDINAL of the cost of the DATE issue to his accounts ( FRF CARDINAL,CARDINAL.CARDINAL ) .","After deducting other sums , it thus assessed the expenditure in issue at ORG ORG and rejected the applicant \u2019s campaign accounts as they exceeded the statutory ceiling by ORG CARDINAL,CARDINAL . It also referred the matter to the ORG pursuant to LAW .","On DATE Mr PERSON applied to the ORG d\u2019Etat to have ORG decision quashed and reversed . His main contention was that , in breach of Article L. CARDINAL - CARDINAL of LAW and the adversarial principle , ORG had added the cost of the opinion poll and the publications in issue to his campaign accounts without first giving him a hearing .","NORP In a judgment of CARDINAL DATE the ORG d'Etat dismissed the application on the following grounds :","\u201c ...","The contested decision , whereby ORG ... revised PERSON campaign accounts and , having found that the maximum permitted amount of election expenditure had been exceeded , referred the matter to ORG , can not be separated from the proceedings thus instituted before that body . That being so , no appeal lies against the decision to the administrative courts . Mr PERSON application is therefore inadmissible .","... \u201d","Applications were made to ORG on DATE by a voter in the CARDINALth administrative district , Mr M. , who maintained that the applicant had exceeded the statutory maximum amount of campaign expenditure , and on DATE by ORG .","On DATE Mr PERSON lodged a pleading . He asked ORG to stay the proceedings until the ORG d\u2019Etat had ruled on the lawfulness of ORG decision and , in the alternative , to hold that his campaign expenditure had not exceeded the statutory ceiling and that he should not be disqualified from standing for election .","In a decision of CARDINAL DATE ORG rejected PERSON request to stay the proceedings , disqualified him from standing for election for DATE from DATE and declared that he had forfeited his seat as a member of ORG . The decision reads as follows :","\u201c ...","Mr PERSON request to stay the proceedings","...","Section CARDINAL of the Ordinance of DATE provides : \u2018 When ruling on cases submitted to it , ORG has jurisdiction to consider all the issues and objections raised in the application ... \u2019 It is thus for ORG to rule on all the issues concerning Mr PERSON campaign accounts . That being so , his application to stay the proceedings can not be granted .","Mr PERSON election expenditure","...","ORG is an administrative authority and not a court . The view it takes when scrutinising a candidate \u2019s campaign accounts consequently can not prejudice the decision of ORG , the body that adjudicates upon the lawfulness of an election under LAW .","The inclusion of expenditure relating to the magazine ORG","... regard being had to the dates on which it was published , to the extent of its circulation and to its content , this magazine can be seen to be a vehicle for election propaganda . Issues DATE , however , contain numerous pages of general and local news which can not be directly linked with promoting the candidate or furthering his election programme . Accordingly , those pages must not be viewed as expenditure committed or incurred for election purposes within the meaning of LAW of LAW . That being so , they should not be included in the expenditure recorded in Mr PERSON campaign accounts .","On the other hand , other pages in those CARDINAL issues contain numerous photographs of the candidate or are made up of articles relating to topics addressed during his election campaign . Those pages consequently amount to election propaganda . This is true [ of ORG pages ... ] ... , which helped to promote the elected candidate . To that extent , the corresponding expenditure must be seen as coming within the expenditure referred to in the first paragraph of Article PERSON of LAW and must be included in the candidate \u2019s campaign accounts . Regard being had to the total cost of the publications concerned and the number of pages to be taken into account , the expenditure incurred under this head amounts to ORG CARDINAL,CARDINAL.CARDINAL .","...","The inclusion of the cost of an opinion poll","It is clear from the inquiry into the facts that an opinion poll commissioned by the ORG was conducted in the CARDINALth constituency in GPE among a representative sample of voters . The questions asked related firstly to the voters\u2019 main concerns , secondly to their voting intentions and thirdly to their appraisal of various political figures and groups .","The inquiry into the facts revealed that Mr PERSON then made use of the poll findings that related to voters\u2019 expectations by choosing his campaign topics on the basis of voter concerns as shown by the findings . Both in issues CARDINAL of the magazine ORG and in various leaflets , he gave priority to the topics so identified . The findings were accordingly used to determine the thrust of the candidate \u2019s election campaign in the constituency .","The inclusion of the cost of part of issue CARDINAL of the magazine CARDINAL Ind\u00e9pendant","In issue CARDINAL of DATE the magazine CARDINAL GPE , which has a circulation of CARDINAL , published an article by PERSON , the mayor of the district , expressing his support for the CARDINAL opposition candidates standing , including Mr PERSON . That article , which was intended to underline the unity in the local majority party DATE before the first round of the election , was an integral part of the whole publication , which thus in its entirety amounts to election propaganda . Responsibility for it must also be attributed to the CARDINAL candidates who benefited from it . Consequently , CARDINAL of the cost of the publication ( FRF CARDINAL,CARDINAL.CARDINAL ) must be included as expenditure in Mr PERSON campaign accounts , as ORG and Political Funding ruled .","The inclusion of the cost of various propaganda expenses","PERSON criticised Mr PERSON for omitting various propaganda expenses . It is clear from the very details provided by the candidate that some expenditure was omitted ... On the basis of the figures submitted by Mr PERSON himself , the total amount to be taken into account for the purposes of Article L. CARDINAL - CARDINAL is thus ORG CARDINAL .","It follows from all the foregoing that the sum of ORG CARDINAL,CARDINAL.CARDINAL must be added to PERSON Pierre - Bloch \u2019s expenditure . The total amount of his expenditure is thus ORG CARDINAL,CARDINAL.CARDINAL and the applicant has consequently exceeded the maximum permitted amount of campaign expenditure by ORG .","... \u201d","On DATE Mr PERSON lodged an application with ORG seeking rectification of clerical errors which , in his submission , vitiated the decision of DATE . He maintained that ORG had counted some of his campaign expenditure twice and that it had not ruled on his request that the opinion poll should be left out of account . ( Mr PERSON argued that Mr PERSON had failed to prove that he was lawfully in possession of the opinion poll report , marked \u201c confidential exclusive property of client \u201d ) .","The applicant lodged a pleading containing further arguments on DATE . He argued that ORG decision did not contain its President \u2019s signature or that of the secretary - general or the rapporteur ; furthermore , the rapporteur \u2019s name had not been given . He added that he had also been denied any opportunity to lodge final submissions as he had not been informed when his case would be heard .","Neither the applicant nor his counsel was informed of the date of the hearing , even though in a letter of DATE the lawyer had asked the secretary - general for the date .","In its decision of CARDINAL DATE ORG rejected the applicant \u2019s submissions based on procedural and formal defects on the ground that \u201c in an application seeking rectification of a clerical error it is not permissible to challenge the assessment of the facts of the case or their legal classification or the formal or procedural manner in which the decision [ to which the application relates ] was rendered \u201d . It also reduced the amount of propaganda expenditure to ORG CARDINAL and set the amount of expenditure incurred by the applicant at ORG CARDINAL , consequently materially amending its decision of CARDINAL DATE , while stating that \u201c this rectification [ was ] not such as to call in question Mr PERSON disqualification from standing for election or the forfeiture of his seat \u201d .","In a decision of DATE ORG , having deducted the accountant \u2019s fees from the amount assessed by ORG , set the amount which PERSON was to pay the ORG pursuant to the last paragraph of Article PERSON of LAW at ORG CARDINAL,CARDINAL .","On DATE the applicant applied to ORG to quash this decision . He alleged , in particular , that ORG had breached LAW .","In a judgment of DATE ORG dismissed his application as follows :","\u201c ...","It appears from the inquiry into the facts that the impugned decision was taken by ORG , which is not a court . It is thus not required to afford the procedural safeguards provided for in [ LAW ] . The applicant is not , however , thereby deprived of the right \u2013 which he exercised \u2013 to have his case heard by a tribunal . Accordingly , the argument based on a violation of LAW ... must fail .","...","... in its decision of DATE , as amended on DATE , ORG found that Mr PERSON had exceeded the maximum permitted amount of expenditure in his campaign in the CARDINALth constituency in GPE for the general election on DATE and DATE by FRF CARDINAL,CARDINAL.CARDINAL . Pursuant to the statutory provisions cited above , ORG and Political Funding was under a duty to require the applicant to pay the amount of the excess . The other grounds relied on by the applicant in order to challenge the decision are consequently invalid and must be rejected .","... \u201d","The election expenditure of ( in particular ) parliamentary candidates must not exceed a statutory ceiling ( Article L. CARDINAL - CARDINAL of LAW ) .","Within DATE of the ballot in which the election was won , each candidate who took part in the first round must file his campaign accounts , certified by an accountant , at the prefecture . The accounts are then sent to ORG ( Article L. CARDINAL - CARDINAL ) .","ORG and Political Funding has CARDINAL members appointed for DATE by decree : CARDINAL members or former members of the ORG d\u2019Etat nominated by the Vice - President of the PERSON d\u2019Etat after consultation of its ORG ; CARDINAL members or former members of ORG nominated by the President of ORG after consultation of its ORG ; CARDINAL members or former members of ORG nominated by the President of ORG after consultation of its divisional presidents ( Article PERSON ) .","The Commission publishes the campaign accounts ( LAW ) .","It approves them and , \u201c after adversarial proceedings \u201d , rejects or amends them ( Article L. CARDINAL - CARDINAL ) .","Where the amount of a declared item of expenditure is less than the usual price , the ORG calculates the difference and adds it to the campaign expenditure after asking the candidate to provide any evidence relevant to an assessment of the facts . The same procedure is applied in respect of all direct or indirect benefits , services and gifts in kind received by the candidate ( Article PERSON ) .","If the accounts have not been filed within the prescribed period , if they have been rejected or if \u2013 where appropriate after amendment DATE they show that the maximum permitted amount of election expenditure has been exceeded , the Commission refers the case to the body that adjudicates election disputes ( Articles PERSON and FAC ) , which is ORG in respect of the election of members of ORG ( Article CARDINAL of the LAW ) .","ORG has CARDINAL members , appointed for a non - renewable DATE term . CARDINAL of them are appointed by the President of the Republic , CARDINAL by the Speaker of ORG and CARDINAL by the Speaker of the ORG . In addition to those CARDINAL members , former presidents of the Republic are life members of ORG as of right . The President of ORG is appointed by the President of the Republic . In the event of a tie , he has the casting vote ( LAW ) .","Within ORG there are CARDINAL sections , each comprising CARDINAL members drawn by lot . Lots are drawn separately among PERSON the members appointed by the President of the Republic , those appointed by the Speaker of the ORG and those appointed by the Speaker of ORG .","Each year the Constitutional Council draws up a list of CARDINAL deputy rapporteurs from among the middle - ranking members of the ORG d\u2019Etat and ORG ; they are not entitled to vote ( section CARDINAL of Ordinance no . CARDINAL of DATE on ORG DATE \u201c the GPE ) .","In addition to the application of Article L.O. CARDINAL of LAW ( see paragraph CARDINAL above ) , the election of a member of ORG may be challenged before ORG within DATE of the election results being announced , by means of a written application by anyone on the electoral roll of the constituency in which the election was held or by anyone who stood for election ( sections CARDINAL\u2013CARDINAL of the Ordinance and LAW of CARDINAL DATE as amended by ORG decisions of CARDINAL DATE , DATE and DATE \u2013 \u201c the Rules of Procedure \u201d ) .","As soon as he receives an application , the President allocates it to CARDINAL of the sections to examine in order to prepare the case for hearing and appoints a rapporteur , who may be selected from among the deputy rapporteurs ( sections CARDINAL\u2013CARDINAL of the Ordinance ) .","Where the application is not declared inadmissible or manifestly ill - founded ( section CARDINAL of the Ordinance ) , the member of ORG whose election is being challenged and , where applicable , his substitute are given notice of it . They may designate a person of their choice to represent them and to assist them with the various steps in the proceedings . The section of ORG allots them a period of time for inspecting the application and the documents at the ORG \u2019s secretariat and producing their written observations ( section CARDINAL of the Ordinance and Rule CARDINAL ) .","When a case is ready for hearing , the section hears the report of the rapporteur . In this he sets out the issues of fact and law and submits a draft decision ( Rule CARDINAL ) . The section discusses his proposals and refers the case to ORG for its ruling on the merits ( Rule CARDINAL ) .","The President of ORG determines when a case is to be entered in its list . Proceedings in ORG are not public , and only since ORG decision of DATE amending the Rules have applicants and members of ORG whose election is in issue been able to seek leave to address the ORG . The secretary - general and the rapporteur for the case attend the ORG \u2019s deliberations . The rapporteur drafts the decision taken as a result of those deliberations ( Rule CARDINAL ) .","ORG gives its ruling in a reasoned decision , which indicates the members who took part in the sitting at which it was taken . The decision is signed by the President , the secretary - general and the rapporteur ( section CARDINAL of the Ordinance and Rule CARDINAL ) and is published in GPE 's ORG Rule CARDINAL ) .","No appeal lies against ORG decisions ( LAW of LAW CARDINAL ) . They are binding on the public authorities ( pouvoirs publics ) and on all administrative and judicial authorities ( LAW ) .","ORG may , however , of its own motion or at the request of an interested party , rectify clerical errors affecting its decisions ( Rules CARDINAL\u2013CARDINAL ) .","Reimbursement in whole or in part of expenditure recorded in campaign accounts , where provided for by law , is not possible until the campaign accounts have been approved by ORG ( Article L. CARDINAL - CARDINAL of LAW ) .","Where it has been found in a final decision that the maximum permitted amount of election expenditure has been exceeded , ORG orders the candidate to pay the ORG a sum equivalent to the amount of the excess . The sum is recovered in the same way as debts owed to the ORG other than taxes and debts relating to ORG property ( Article PERSON ) .","ORG has no discretion ; it is required to apply ORG final decision and to base its calculation of the sum payable to the ORG by the candidate solely upon the amount by which the statutory ceiling on election expenditure has been exceeded ( judgment of ORG , DATE ) .","As to the nature of the payment , ORG has held ( in the judgment cited above ) :","\u201c ... even if it is accepted that the requirement to pay the ORG a sum equivalent to the amount by which the maximum permitted amount of election expenditure has been exceeded represents a penalty , that penalty is only an administrative penalty . It can not be regarded as criminal in nature or intended to punish an offence . It does not therefore come within the scope of LAW Moreover , where the ceiling on election expenditure has been exceeded , LAW makes provision for the penalties of fines and imprisonment ; these are criminal PERSON in nature and are not in issue in the instant case . The argument based on an infringement of the provisions of LAW in the contested decision must consequently fail . \u201d","A person who has not filed his campaign accounts in accordance with the requirements and within the time - limit laid down in LAW DATE or whose campaign accounts have been rightly rejected is disqualified from standing for election for a period of one year from the date of the election . Anyone who has exceeded the maximum permitted amount of campaign expenditure as laid down in Article L. CARDINAL - CARDINAL may likewise be disqualified from standing for election for the same length of time ( Article L.O. CARDINAL , second paragraph , of LAW ) .","Where appropriate , ORG disqualifies the person from standing for election and , if that person was the candidate elected , it declares in the same decision that he has forfeited his seat ( Article L.O. CARDINAL ) .","Article CARDINAL of LAW provides :","\u201c A fine of ORG CARDINAL,CARDINAL and a sentence of DATE imprisonment , or CARDINAL of those penalties , shall be imposed on any candidate ( in the case of a poll to elect a single candidate ) or any candidate heading a list ( in the case of a poll to elect candidates from party lists ) who","...","( CARDINAL ) has expended more than the maximum permitted amount laid down pursuant to LAW ;","( CARDINAL ) has not complied with the formal requirements for drawing up campaign accounts laid down in Articles PERSON and PERSON ;","( CARDINAL ) has declared in his campaign accounts or the appendices to them amounts that have knowingly been reduced ;","... \u201d","It is the duty of ORG to send a case to the public prosecutor \u2019s office where it finds irregularities which appear to contravene , in particular , Article L. CARDINAL - CARDINAL of LAW ( Article PERSON ) .","Where so provided by law , a serious crime ( crime ) or other major offence ( d\u00e9lit ) is punishable with CARDINAL or more \u201c additional \u201d penalties ( Article CARDINAL of LAW ) , including deprivation of civic , civil and family rights , which may include the right to stand for election ( Article CARDINAL - CARDINAL ) . Notwithstanding any provision to the contrary , such a deprivation can not follow automatically from a criminal conviction ( Article CARDINAL - CARDINAL ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5525","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2000,"docname":"IPEK v. TURKEY","importance":3,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant claims that he was called to the ORG gendarme station on DATE on suspicion of killing PERSON on DATE in a fight . He contends that he was immediately detained and during the first TIME he was not given anything to eat . He states that he was blindfolded .","The period of his detention was extended by the Torul public prosecutor for DATE at the request of PERSON , the captain of the ORG gendarme regiment . The applicant claims that he was beaten and tortured during his detention .","On DATE the ORG ordered the applicant \u2019s formal arrest . The applicant \u2019s wife , PERSON , applied to ORG on CARDINAL DATE claiming that her husband had been tortured by gendarmes while in custody . The public prosecutor conducted a preliminary investigation . He took statements from Captain PERSON as well as CARDINAL other witnesses .","On DATE the public prosecutor issued a decision of non - prosecution . The applicant \u2019s wife challenged the decision before ORG .","On DATE ORG accepted her submissions and annulled the non - prosecution decision .","On DATE the Torul public prosecutor instituted criminal proceedings before ORG charging Captain PERSON and gendarme officers PERSON Temur , PERSON and PERSON of offences under LAW CARDINAL of LAW .","On DATE the Torul Criminal Court of First Instance issued a non - jurisdiction decision and separated the proceedings against Captain PERSON GPE from those brought against the other co - accused on the ground inter alia that the charges were more appropriately dealt with under Article CARDINAL of the Penal Code .","ORG sent Captain PERSON file to the NORP public prosecutor \u2019s office to obtain the necessary authorisation to prosecute him . Authorisation was given by ORG of ORG and the NORP public prosecutor subsequently instituted criminal proceedings against Captain PERSON before ORG on DATE .","On DATE the court joined the cases of Captain PERSON and the other CARDINAL accused . The applicant joined the case as an intervening third party .","The court had before it CARDINAL medical reports . According to the first report dated DATE MONEY of violence had been found on the applicant \u2019s person . However , the second medical report dated DATE stated that the following marks were found on his body : an oedema QUANTITY in diameter on his right hand , a graze on his left leg of CARDINAL by QUANTITY and a discolouring under his right eye . The medical reports were sent for examination to ORG which concluded that the applicant \u2019s health was not at risk . The applicant was given CARDINAL days\u2019 sick leave from work . The report of ORG also mentioned that the applicant \u2019s injuries could have been caused by blows .","Although the witnesses called on behalf of the applicant stated before the court that they did not see him being beaten , they affirmed that they observed that he had some violet - coloured bruises on his face and body when he was brought before the substitute judge . The witnesses further maintained that the applicant told them that the commander of the gendarme station had tortured him during interrogation .","In a judgment dated DATE , ORG found Captain PERSON guilty of an offence under LAW since he had tried to extract incriminating statements from the applicant . The court accepted that the applicant was subjected to ill treatment and to inhuman and degrading treatment in custody . The court relied on the statements of the witnesses , medical reports and the interrogation record signed by Captain PERSON which indicated that he had questioned the applicant . The court sentenced Captain PERSON to QUANTITY - months\u2019 imprisonment and debarred him from duty for DATE . The court suspended the prison sentence since it considered that the accused would not commit any similar offences in the future . The court acquitted the other CARDINAL accused on account of lack of evidence .","Captain PERSON appealed against conviction . On DATE ORG dismissed his appeal and sent its judgment to ORG on DATE where it was deposited with the ORG .","The applicant maintains that he was notified of this decision on DATE when he went to the court to obtain a copy ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-76964","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2006,"docname":"CASE OF BORSHCHEVSKIY v. RUSSIA","importance":3,"conclusion":"Violation of Art. 6-1 and P1-1 (quashing of final judgment);Violation of Art. 6-1 and P1-1 (enforcement delays);Pecuniary damage - financial award;Non-pecuniary damage - financial award","judges":"Christos Rozakis","text":["The applicant was born in DATE and now lives in LOC .","NORP In DATE the applicant \u2019s employer , the ORG - owned construction and industrial holding \u201c GPE \u201d , seconded him for participation in the clean - up works at the site of the GPE nuclear plant disaster . As a consequence of exposure to radioactive emissions , on DATE the applicant was assigned to the second disability category .","Until DATE the applicant \u2019s former employer had paid him DATE compensation for health damage . In DATE the holding was privatised and re - organised into a public company OAO \u201c SPK GPE \u201d .","DATE and DATE the compensation was paid by ORG ( now renamed as ORG no . CARDINAL of ORG , hereinafter \u201c the ORG \u201d ) .","NORP Since DATE the compensation has been paid by ORG of ORG in LOC .","In DATE the applicant brought a civil action against his former employer , \u201c GPE \u201d , claiming that the amount of the compensation paid had been incorrectly calculated in the period from DATE to DATE .","On DATE ORG of GPE granted his claim in part .","On DATE ORG quashed the judgment of DATE and remitted the matter for a new examination on the ground that the obligation to pay compensation for health damage had been transferred to the social security authorities .","On DATE ORG joined ORG as a co - defendant to the proceedings .","On DATE ORG of GPE granted the applicant \u2019s claims against his former employer and established that the applicant had been entitled to DATE payments of ORG CARDINAL,CARDINAL . No award against ORG was made because the applicant apparently objected to its being joined as a co - defendant . By interim decision ( opredelenie ) of DATE , an arithmetical error in the judgment was corrected .","In DATE the applicant asked ORG to supplement the operative part of the judgment of DATE with a reference to the fact that from DATE the ORG should have been the legal successor to his former employer in respect of payment of compensation for the health damage . ORG objected to the applicant \u2019s request , claiming that it had been lodged outside the time - limit and that its granting would determine a matter that fell outside the scope of the judgment of DATE , namely the issue of its succession to the obligations of the applicant \u2019s former employer .","By judgment ( reshenie ) of DATE , ORG amended the judgment of DATE . It established that from DATE the ORG should have paid compensation to the applicant in lieu of his applicant \u2019s former employer , in the same amount ( RUR CARDINAL,CARDINAL ) , with subsequent adjustment for increases in the minimum DATE wage . The judgment of CARDINAL DATE was not appealed against .","It appears that ORG continued to underpay the applicant . He asked LOC to clarify the procedure for enforcement of the judgment of DATE and to issue him with a writ of execution .","On DATE ORG , noting that the defendant had been duly notified of the hearing but failed to appear , found that ORG had not complied with the judgment of DATE and continued to pay the applicant significantly smaller amounts . By decision ( opredelenie ) of that date , the court ordered that ORG pay the applicant , at the expense of the ORG , the amounts outstanding for the period from DATE to DATE to the total of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL and issued him with a writ of execution . The decision of DATE was not appealed against .","The applicant submitted the writ to ORG .","On DATE ORG forwarded the writ to ORG , which , in turn , forwarded it to ORG .","On DATE ORG advised the applicant that his writ of execution had been accepted for enforcement . However , enforcement was only possible \u201c within the funding limits and budgetary constraints \u201d and \u201c in the chronological order as [ writs of execution ] had been issued by courts \u201d .","On DATE a court bailiff of the GPE Regional bailiffs\u2019 service opened enforcement proceedings against ORG and invited it to execute the judicial decision within DATE .","On DATE the ORG heard the application of ORG for an amendment of the procedure for enforcement of the judgment of DATE and determined as follows :","\u201c Having regard to the difficult social situation in GPE in DATE ... the court considers it necessary to recover MONEY in [ the applicant \u2019s ] favour from ORG in DATE instalments ... It has been established that the deferred instalments shall be guaranteed against inflation in accordance with the NORP laws ... \u201d","On DATE ORG clarified its decision of CARDINAL DATE , indicating that the instalments should be equal and that the decision had immediate effect .","According to the Government , on DATE the ORG quashed the decision of CARDINAL DATE and remitted the matter for a new examination . On DATE ORG refused the application by ORG for a change of the debtor and stay of enforcement . Copies of these decisions have not been made available to the ORG and their precise contents are not known .","On DATE the ORG asked ORG for the resources necessary to pay the debt to the applicant . On DATE , in response to an inquiry by a bailiff into the progress of the request , ORG replied that they had asked ORG to allocate the necessary amount ( ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) .","On DATE ORG of GPE examined \u201c an application by ORG no . CARDINAL for supervisory review of ORG judgment of DATE ... which contained a request for a stay of enforcement \u201d . Pursuant to LAW , it decided to obtain the case file and suspended enforcement proceedings .","On DATE the bailiffs received ORG decision and stayed the enforcement proceedings .","On DATE ORG of GPE examined \u201c an application by ORG no . CARDINAL Ms L[. ] for supervisory review of the case \u201d . ORG accepted as meritorious PERSON argument that that ORG had not been competent to issue the judgment of DATE . Pursuant to LAW , it remitted the supervisory - review application for examination on its merits by the Presidium of ORG .","On DATE the ORG of ORG quashed , by way of supervisory review , the judgment of DATE and remitted the applicant \u2019s request for supplementing of the operative part of the judgment of DATE to ORG for a new examination .","On DATE the Korenovskiy ORG determined that it had issued the judgment of DATE in excess of jurisdiction because LAW had not provided for issuing of judgments in such situations .","A judicial decision became legally binding upon expiry of the time - limit for lodging an appeal if no such appeal had been lodged ( LAW ) . The time - limit for lodging an appeal was set at DATE ( LAW ) .","A judgment was to be enforced after it had become legally binding , unless it provided for immediate enforcement ( LAW ) .","The Code of Civil Procedure of GPE ( \u201c the new Code \u201d ) was enacted on DATE and replaced LAW ( \u201c the old LAW \u201d ) from DATE . It provides as follows :","\u201c CARDINAL . The grounds for quashing or altering judicial decisions by appeal courts are :","...","( CARDINAL ) NORP violation or incorrect application of substantive or procedural legal provisions . \u201d","\u201c CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .","Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... \u201d","\u201c CARDINAL . Having examined an application for supervisory review , the judge issues a decision on \u2013","( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ...","NORP If a decision to obtain the file has been made , the judge may suspend enforcement of the judicial decision until the supervisory - review proceedings have been completed ... \u201d","\u201c CARDINAL . A judicial decision on remitting the case for examination on the merits by a supervisory - review court must contain :","( CARDINAL ) a reasoned description of the grounds for remitting the case for examination on the merits ... \u201d","\u201c Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . \u201d","\u201c CARDINAL . Having examined the case by way of supervisory review , the court may ...","( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ; ...","( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if substantive legal provisions have been erroneously applied or interpreted . \u201d","Resolution no . CARDINAL of ORG of GPE of DATE , \u201c On certain issues arising in connection with adoption and coming into force of the Code of Civil Procedure of the GPE \u201d , provided that \u2013","\u201c CARDINAL . ... The [ DATE ] time - limit for lodging an application for supervisory review of judicial decisions that became legally binding before DATE , shall run from CARDINAL DATE . \u201d","NORP In response to question no . CARDINAL concerning calculation of the time - limit for lodging an application for supervisory review of judicial decisions that became legally binding before DATE , the ORG of ORG clarified that the final date for lodging such an application should be DATE .","Once instituted , enforcement proceedings must be completed within DATE upon receipt of the writ of execution by the bailiff ( Section CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-108584","languageisocode":"ENG","respondent":"RUS","branch":"CHAMBER","date":2012,"docname":"CASE OF VLADIMIR MELNIKOV v. RUSSIA","importance":4,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)","judges":"Anatoly Kovler;Erik M\u00f8se;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen","text":["The applicant was born in DATE and lives in GPE - GPE .","By a judgment of DATE ORG of the Vladikavkaz Garrison granted the applicant \u2019s complaint against the commander of ORG of ORG and , among other things , recovered in his favour a number of unpaid allowances due to the applicant for his service in the conditions of an armed conflict . The ORG did not mention any specific amounts , instead suggesting that the debtor calculate them on a certain basis .","The above judgment was not appealed and became final . It was enforced in the larger part on DATE , with only the food allowance remaining unpaid .","On DATE the applicant was paid the outstanding food allowance , and the judgment of DATE was thus enforced in full ."],"violated_articles":["6","P1"],"violated_paragraphs":["6-1","P1-1"],"violated_bulletpoints":["P1-1-1"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-68423","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2005,"docname":"CASE OF LLOYD AND OTHERS v. THE UNITED KINGDOM","importance":3,"conclusion":"Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award","judges":"Josep Casadevall;Nicolas Bratza;Simon Brown","text":["Each applicant failed to pay sums due in respect of either local taxes ( community charge , council tax or non - domestic rates ) or court - imposed fines . In respect of the failure to pay local taxes , the GPE court had in each case determined that the applicant was liable to pay ( issuing a \u201c liability order \u201d ) ; in fines cases , the GPE court had imposed the fine as the sentence following a criminal conviction .","Each applicant fell into arrears with the payments due from them . These cases involve the enforcement proceedings in respect of their arrears in the GPE court . Each applicant appeared before the court , following the issuing of an application for their committal to prison as a result of their failure to pay the sums due . At that hearing the magistrates found that the non - payment was due to the applicant \u2019s wilful refusal or culpable neglect . As a result each applicant was sentenced to a period of imprisonment . The sentence was either imposed immediately ( ORG ) or was suspended on terms that the applicant make periodic payments towards the outstanding sum . In the latter circumstances , when the applicant failed to comply with the terms imposed , a further hearing was held in the GPE court at which the suspended term of imprisonment was activated . Each applicant spent a period of time in prison . Legal aid ( free legal representation where the applicant did not have sufficient means to pay for it ) was not available for these enforcement proceedings prior to DATE and none of the applicants was legally represented at the hearings in front of the magistrates .","Following their imprisonment , an application was made on behalf of each applicant , by way of either judicial review or case stated , which resulted in ORG quashing the orders made by the magistrates . The majority of the applicants were released from prison on bail at the time of making their applications to ORG . In CARDINAL cases the orders of the magistrates were quashed in a judgment of ORG . In the remaining cases the orders were quashed following ORG approval of a consent order agreed between the applicants and the magistrates who had sentenced them .","With CARDINAL exception ( Christison , CARDINAL ) , the ORG has set out the relevant facts pertaining to each applicant in the table which appears at the end of the decision on admissibility ( ORG v. GPE , no . CARDINAL and others , decision of DATE ) . That table sets out the following information in respect of each applicant : their name and application number ; whether their case involved non - payment of community charge ( \u201c ORG \u201d ) , council tax ( \u201c GPE \u201d ) , non - domestic rates ( \u201c ORG \u201d ) or fines ( \u201c F \u201d ) and DATE which they spent in prison ; whether their proceedings in the GPE court took place before or after legal aid became available on DATE ; and the grounds upon which ORG quashed the orders of the magistrates . Additional relevant factual information appears in this column of the table where appropriate .","Where the orders of the magistrates were quashed following a judgment , the ORG has indicated that fact in the table and quoted from the relevant part of the judgment . Where the orders of the magistrates were quashed by means of a consent order , the ORG has set out the terms of the consent order in full . In such cases , where the terms agreed contain obvious mistakes or misquotations from domestic case - law , the ORG has inserted corrections in square brackets . However , where it is not obvious what the relevant correction should be , the ORG has simply left the order in its original form .","NORP Throughout the text of this judgment , where there is a reference to a specific applicant , the ORG has set out the surname of the applicant followed by their application number in brackets . The words \u201c justices \u201d and \u201c magistrates \u201d are synonymous in domestic law .","For reasons of space , the ORG sets out the facts of the Christison ( CARDINAL\/CARDINAL ) application below .","This applicant \u2019s application for judicial review was determined by the judgment of Mr Justice PERSON in NORP v. PERSON Justices ex parte PERSON and PERSON ( CARDINAL DATE ) . It is clear from that judgment that the applicant was summoned to court as a result of her failure to pay council tax . On DATE , the justices , having neither received any evidence about , nor asked any questions about , the financial outgoings of the applicant , found her to have culpably neglected to pay the council tax and made an order imposing CARDINAL days\u2019 imprisonment suspended on payment of QUANTITY ( GBP ) per month .","The applicant did not make the payments in compliance with the GPE order of DATE . She was therefore summoned to appear on DATE for the GPE court to determine whether the warrant of committal should be issued . The justices were told by the prosecutor that the applicant had been served with the notice of the hearing DATE prior to the hearing . They proceeded in her absence and issued the committal warrant . She spent a total of DATE in prison .","The order of CARDINAL DATE was quashed by Mr Justice PERSON on the following ground :","\u201c [ N]o proper means enquiry was carried out ... The Justices accept that there was no proper means enquiry and , therefore , the order is going to be quashed . ...","... Justices probably carry out means enquiries DATE . They must know , and if they do not , their clerks should advise them , what ought to be asked and what information ought to be obtained . They failed to do that in [ this ] case . \u201d","The order of DATE was quashed by Mr Justice PERSON for the following reasons :","\u201c ... Anyway , the applicant did not pay as she should have done and she also was summoned to appear on DATE . ... [ the bailiffs ] had served DATE or so before . Although the evidence of that has now been produced ... it is somewhat unsatisfactory because the bailiff \u2019s handwritten note does not make it clear whom they actually served . I am prepared ( because it does not make any difference to the outcome ) to assume that she was served , and the Justices again were told , although no evidence was produced , that bailiffs has served her DATE before ...","The time has come to try to make it abundantly clear to Justices that , in the view of this court , it is difficult to conceive that there will be circumstances which justify the making of a committal order when the defendant fails to appear before the court . It means that the Justices are unable to ascertain whether there are , in truth , reasons why payment has not been made which might excuse such payment , and furthermore , reasons why in an individual case it would be wrong to send the person immediately to prison . Alternatively , it might be proper to reduce the period of imprisonment that is considered appropriate , if any is considered appropriate . It may transpire that by the time that the question of implementing the suspended committal order is considered , the circumstances of the defendant have changed . Whereas before she might have been able to pay perhaps , through illness or whatever reason , by now she can not . Thus , it would be wrong to commit her . Committal , I must re - emphasise , can only occur if the Justices are satisfied that there is a continuing wilful refusal or culpable neglect .","The Justices have a perfectly sensible and powerful weapon available to them to deal with cases where a defendant does not attend , and that is a Warrant Not Backed for Bail . That is the means by which a person can be brought before the court and made to explain why he or she has not paid . Then the Justices will have the proper information before them to enable them to decide whether the committal is indeed correct . I can not emphasise strongly enough my view that Justices should not , unless there are very exceptional circumstances ( such as positive evidence that a defendant is refusing to attend and has expressed an unwillingness to comply with the court order ) commit to prison in the absence of a defendant . ...","It is true that in these cases , the Justices were told that service had been effected , but service DATE before is nothing to the point . Much can happen in that time ... Furthermore , there was no evidence put before the Justices to support the contention that service had been effected , and for my part I do not think it right , when someone \u2019s liberty is at stake , for Justices to rely upon the word of the prosecutor unsupported by any evidence .","A civil court which commits for contempt , which may be contempt occasioned by failure to comply with a court order , requires proof of service and that is usually done by a bailiff or whoever , indicating that service has been effected . It seems to me that it is quite wrong that Justices should put up with a lesser standard than that . \u201d","Mr Justice PERSON also awarded costs against the justices on the following basis :","\u201c It is unusual for costs to be awarded against Justices who do not attend applications against them for judicial review . The principle which is applied has recently been referred to by PERSON in NORP v. GPE - upon - Tyne Justices ex parte PERSON ( DATE ) RA CARDINAL . At page ORG of the report , the learned judge refers to a decision of ORG , NORP v. GPE ex parte Farmery CARDINAL JP CARDINAL , the head note of which reads :","\u2018 ... the court would be guided by the principles set out in NORP v. PERSON , ex parte PERSON ( DATE ) CARDINAL PERSON wherein it was decided respectively : ( i ) that costs would only be awarded against Justices in the rarest of circumstances when they have done something which calls for strong disapproval ; and ( ii ) that it was the practice not to grant costs against Justices merely because they have made a mistake in law , but only if they have acted perversely or with some disregard for the elementary principles which every court ought to obey , and even then only if it was a flagrant instance.\u2019 ...","... In [ this ] case the committal took place in the absence of the defendant .","This court has made it clear that Justices must be satisfied , at the very least , that there has been proper service , and , as I have said , I find it very difficult to conceive of circumstances which would justify a committal in the absence of a defendant . Thus it seems to me that the conduct of these Justices can properly be said to fall within the description that I have set out and which is referred to in the GPE case by PERSON","By virtue of section CARDINAL of the Magistrates\u2019 Courts Act DATE a party to proceedings before a GPE court may \u201c question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of ORG on the question of law or jurisdiction involved ... \u201d . This is known as the \u201c case stated \u201d procedure .","Under section CARDINAL of the CARDINAL Act , magistrates may grant bail to a party who applies to them to state a case ; but if they refuse to do so , in cases categorised as \u201c civil \u201d under the domestic law , ORG has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary .","According to GPE \u2019s ORG , ORG , Volume CARDINAL(CARDINAL ) at paragraph CARDINAL :","\u201c Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts , tribunals and other bodies or persons who carry out quasi - judicial functions or who are charged with the performance of public acts and duties ...","Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made , but the decision making process itself ...","The duty of the court is to confine itself to the question of legality . Its concern is with whether a decision making authority exceeded its powers , committed an error of law , committed a breach of the rules of natural justice , reached a decision which no reasonable tribunal could have reached or abused its powers . \u201d","The principles underlying the domestic law as set out under this heading are largely as previously stated in the case - law of the Convention organs , in particular in the judgments of the ORG in the cases of PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions PERSON , p. CARDINAL ( \u201c PERSON \u201d ) , and Perks and Others v. GPE , no . CARDINAL\/CARDINAL and Others , DATE ( \u201c Perks \u201d ) , as confirmed in ORG v. GPE , no . CARDINAL and others , decision on admissibility of DATE .","In LANGUAGE law , orders of a GPE court which are in excess of jurisdiction are void from the outset , whereas orders made within jurisdiction remain valid until set aside by a superior court . It is only in respect of the former type of error that a court can be held civilly liable in damages ( under LAW DATE , which replaced section CARDINAL of the Justices of the Peace Act DATE see below ) .","The appropriate test for whether an order of a GPE court is void for lack of jurisdiction is that set out by ORG in ORG v. PERSON [ DATE ] CARDINAL ORG CARDINAL . In that case magistrates had made an order sending a CARDINAL-year - old boy to a training school after a hearing at which he was not legally represented , had not applied for legal aid and had not been informed of his right so to do . The order was quashed on judicial review on the ground that , by virtue of LAW ) of the Treatment of Offenders ( GPE ) DATE , magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented , unless he had applied for legal aid and had been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so .","The boy then applied for damages for false imprisonment against the magistrates . Since the case was decided prior to the enactment of ORG DATE and at a time when magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction , ORG was required to decide the jurisdictional question . Indeed , Lord Templeman in his judgment stated as follows :","\u201c The question to be determined on this appeal is whether the magistrates acted within their jurisdiction or without jurisdiction . \u201d","In addressing that question , Lord Bridge specifically referred to the case of ORG v. ORG [ DATE ] CARDINAL Appeal Cases CARDINAL ( ORG ) and stated as follows :","\u201c I do not believe that the novel test of excess of jurisdiction which emerges from the PERSON case , ... however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute , has any application whatever to the construction of s[ection ] CARDINAL of the DATE LAW or s[ection ] CARDINAL of the DATE [ Justices of the Peace ] Act . \u201d","In the judgment of ORG , it was held that a GPE court acted in excess of jurisdiction in CARDINAL circumstances only : ( CARDINAL ) if it acted without having jurisdiction over the cause , ( CARDINAL ) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity , or ( CARDINAL ) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent . The instant case fell within the third limb of the rule : the magistrates were liable in damages because they had not observed the requirements of LAW . As such , they had failed to fulfil the statutory condition precedent to the imposition of the sentence of detention .","During the course of his judgment , Lord PERSON commented on the jurisdiction of magistrates in conducting a criminal trial :","\u201c ... once justices have duly entered upon a summary trial of a matter within their jurisdiction , only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [ A]n error ( whether of law or fact ) in deciding a collateral issue on which jurisdiction depends will not do so . Nor will the absence of any evidence to support a conviction ... \u201d","Lord Bridge also said the following in relation to the second situation set out above in which a GPE court acted in excess of jurisdiction :","\u201c Justices would , of course , be acting \u2018 without jurisdiction or in excess of GPE within the meaning of s[ection ] CARDINAL if , in the course of hearing a case within their jurisdiction , they were guilty of some gross and obvious irregularity of procedure , as for example if CARDINAL justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence , or of the rules of natural justice , as for example if the justices refused to allow the defendant to give evidence . But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice . Such convictions , if followed by a potential trespass to person or goods , would not , in my opinion , necessarily expose the justices to liability in damages . \u201d","The final limb of the rule formulated by ORG in ORG v. PERSON ( that is , that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent ) was applied by ORG and ORG in NORP v. ORG , ex parte PERSON [ DATE ] CARDINAL W.L.R. CARDINAL and [ DATE ] CARDINAL ORG , a case concerning rates ( a local tax which was the predecessor to the community charge ) . Mr Justice PERSON considered that the justice \u2019s plain failure to address themselves to the question whether or not the applicant \u2019s failure was due to culpable neglect was not a gross and obvious irregularity but a failure to satisfy the statutory condition .","In that case , the plaintiff had been unable to pay all of the rates for which he became liable in DATE , and in DATE he failed to follow his accountant \u2019s advice to close his business and elect bankruptcy . Applying legislation similar to regulation CARDINAL of ORG ( for which , see below ) , the magistrates found that his failure to follow the accountant \u2019s advice constituted culpable neglect and they committed him to prison . On appeal from the judgment of Mr Justice PERSON , ORG held that no causal connection had been established between the failure to follow the advice in DATE and the failure to pay the rates in DATE ; and that the magistrates had not properly entered into the inquiry as to whether the failure to pay was due to culpable neglect , which was required by the legislation as a statutory condition precedent to the exercise by the justices of their power to issue a warrant of commitment . They were therefore acting in excess of jurisdiction and were liable in damages .","The CARDINAL ORG judges expressed their findings in slightly different terms . Lord ORG O\u2019Connor observed that \u201c they never carried out the inquiry required [ by the law ] \u201d . Lord Justice PERSON found that \u201c some inquiry about the applicant \u2019s finances was made \u201d , but that \u201c a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out . The justices never examined the question whether failure to pay was due to culpable neglect ... In my judgment , the statutory inquiry was not held in the present case \u201d . He explained that the making of an enquiry was a statutory condition precedent to the issue of a warrant of commitment : \u201c In other words , if the justices failed to hold any inquiry at all as required by the section they would have no jurisdiction to issue a warrant . \u201d Sir PERSON ( who dissented from the majority decision ) said : \u201c ... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant \u2019s failure to pay his rates was \u2018 due either to his wilful refusal or to his culpable ORG \u201d .","The relevant subordinate legislation is ORG DATE ( ORG ) ( \u201c the DATE LAW ) .","The relevant provisions of regulation CARDINAL ( \u201c application for a liability order \u201d ) are as follows :","\u201c ( CARDINAL ) If an amount which has fallen due ... is wholly or partly unpaid the charging authority may ... apply to a GPE court for an order against the person by whom it is payable .","...","( CARDINAL ) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid . \u201d","Regulation CARDINAL(CARDINAL ) provides for the seizure and sale of a debtor \u2019s property ( \u201c levying of distress \u201d ) :","\u201c Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made . \u201d","Regulation CARDINAL is concerned with the committal to prison of a debtor , and provides , so far as is relevant :","\u201c ( CARDINAL ) Where a charging authority has sought to levy an amount by distress under regulation CARDINAL , the debtor is an individual , and it appears to the authority that no ( or insufficient ) goods of the debtor can be found on which to levy the amount , the authority may apply to a GPE court for the issue of a warrant committing the debtor to prison .","( CARDINAL ) On such application being made the court shall ( in the debtor \u2019s presence ) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect .","( CARDINAL ) NORP If ( and only if ) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit -","( a ) NORP issue a warrant of commitment against the debtor , or","( b ) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions ( if any ) as the court thinks just .","...","( CARDINAL ) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed DATE , unless the amount stated in the warrant is sooner paid ... . \u201d","Regulation CARDINAL makes further provision in respect of committal to prison . It provides , in relevant part , as follows :","\u201c ( CARDINAL ) Where an application under regulation CARDINAL has been made , and after the making of the inquiries mentioned in paragraph ( CARDINAL ) of that regulation no warrant is issued or term of imprisonment fixed , the court may remit all or part of the appropriate amount mentioned in regulation CARDINAL ) with respect to which the application related .","( CARDINAL ) Where an application under regulation CARDINAL has been made but no warrant is issued or term of imprisonment fixed , the application may be renewed ( except so far as regards any sum remitted under paragraph ( CARDINAL ) ) on the ground that the circumstances of the debtor have changed . \u201d","Regulations CARDINAL and CARDINAL of ORG Regulations DATE ( ORG CARDINAL\/CARDINAL ) and regulations CARDINAL and CARDINAL of ORG ) ( ORG DATE ( ORG CARDINAL\/CARDINAL ) , which concern the commitment to prison of a person for failure to pay council tax and non - domestic rates respectively , are in similar terms to regulations CARDINAL and CARDINAL of the DATE Regulations .","Sections CARDINAL(CARDINAL ) and CARDINAL of LAW DATE read , in relevant part , as follows :","\u201c CARDINAL . Postponement of issue of warrant .","( CARDINAL ) Where a GPE court has power to issue a warrant of commitment under this Part of this LAW , it may , if it thinks it expedient to do so , fix a term of imprisonment ... and postpone the issue of the warrant until such time and on such conditions , if any , as the court thinks just . \u201d","\u201c CARDINAL . Restriction on power to impose imprisonment for default","( CARDINAL ) Where on the occasion of the offender \u2019s conviction a GPE court does not issue a warrant of commitment for a default in paying any ... sum [ adjudged to be paid following conviction ] ... or fix a term of imprisonment under ... section CARDINAL(CARDINAL ) which is to be served by him in the event of any such default , it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless - ( ... )","( b ) The court has since the conviction inquired into his means in his presence on CARDINAL occasion .","( CARDINAL ) Where a GPE court is required by subsection ( CARDINAL ) above to inquire into a person \u2019s means , the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless -","( ... )","( b ) The court","( i ) is satisfied that the default is due to the offender \u2019s wilful refusal or culpable neglect ; and","( ii ) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful . \u201d","Section CARDINAL(CARDINALA ) lists the methods of enforcing payment that are mentioned in the above - cited subsection CARDINAL(CARDINAL)(b)(ii ) . CARDINAL such method that is listed in section CARDINAL(CARDINALA ) is the imposition of a \u2018 fines supervision ORG under LAW of LAW . Section CARDINAL continues :","\u201c ( CARDINAL ) After the occasion of an offender \u2019s conviction by a GPE court , the court shall not , unless -","the court has previously fixed a term of imprisonment under section CARDINAL(CARDINAL ) above which is to be served by the offender in the event of a default in paying a sum adjudged to be paid by the conviction ;","...","issue a warrant of commitment for a default in paying the sum or fix such a term except at a hearing at which the offender is present .","( CARDINALA ) A GPE court may not issue a warrant of commitment under subsection ( CARDINAL ) above at a hearing at which the offender is not present unless the clerk of the court has first served on the offender a notice in writing stating that the court intends to hold a hearing to consider whether to issue such a warrant and giving the reason why the court so intends . ...","...","( CARDINALF ) A notice under subsection ( CARDINALA ) above to be served on any person shall be deemed to be served on that person if it is sent by registered post or the recorded delivery service addressed to him at his last known address , notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person .","( CARDINAL ) Where a GPE court issues a warrant of commitment on the ground that CARDINAL of the conditions mentioned in subsection ( CARDINAL ) or ( CARDINAL ) above is satisfied , it shall state that fact , specifying the ground , in the warrant . \u201d","Part I of the Criminal Justice Act DATE sets out provisions in relation to the custody and detention of persons DATE . LAW reads , in relevant part , as follows :","\u201c CARDINAL . General restriction on custodial sentences","...","( CARDINAL ) No court shall commit a person DATE to be detained under LAW below [ Detention of persons aged DATE for default or contempt ] unless it is of the opinion that no other method of dealing with him is appropriate ; ( ... )","( CARDINALA ) Where a GPE court commits a person DATE to be detained under LAW below , it shall -","( a ) state in open court the reason for its opinion that no other method of dealing with him is appropriate ; and","( b ) cause that reason to be specified in the warrant of commitment and to be entered in the register . \u201d","Section CARDINAL of the Criminal Justice Act CARDINAL reads , in relevant part , as follows :","\u201c CARDINAL . Restriction on imposing custodial sentences on persons DATE not legally represented .","( CARDINAL ) A GPE court on summary conviction or ORG on committal for sentence or on conviction on indictment shall not \u2013","( a ) pass a sentence of detention in a young offender institution ...","...","in respect of or on a person who is not legally represented in that court , unless either \u2013","( i ) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance ; or","( ii ) having been informed of his right to apply for legal aid and had the opportunity to do so , he refused or failed to apply . \u201d","Regulation CARDINAL(CARDINAL ) of the DATE LAW states that the above sections of LAW DATE apply to proceedings under regulation CARDINAL of the DATE Regulations .","Among the further case - law referred to in the judgments and consent orders of ORG , and\/or referred to by the parties in their submissions , was the following :","In NORP v. PERSON Justices ex parte PERSON ( DATE ) , Mr Justice PERSON stated as follows in a case concerning the non - payment of the community charge :","\u201c ... It is important when dealing with the liberty of citizens only to set in train the process of imprisonment when all the requirements imposed by law have been carefully considered . It is important to note that , in this field as in the case of suspended sentences of imprisonment imposed pursuant to the criminal law , the same degree of care must be exercised in the case of a suspended penalty as in the case of an immediate penalty . \u201d","In NORP v. PERSON ex parte ORG [ DATE ] CARDINAL ORG Bench CARDINAL , ORG , in examining legislation in similar terms to GPE , emphasised that , in order to commit to prison , the justices , following their inquiry , had to be of the opinion that the failure to pay was due either to wilful refusal or culpable neglect .","In NORP v. PERSON Justices ex parte PERSON ( DATE ) Mr Justice Laws stated as follows :","\u201c ... The means inquiry required by regulation CARDINAL ) is of great importance because without it the Justices plainly can not properly arrive at a conclusion as to whether the failure to pay had been due to the debtor \u2019s wilful refusal or culpable neglect . A means inquiry , thus , is at the centre of the enforcement procedure which is laid down by these ORG . These Justices did not , in truth , embark upon a proper means inquiry at all . It follows that their order committing the applicant to prison is entirely vitiated . \u201d","In PERSON v. ORG ( CARDINAL DATE ) , a case involving the non - payment of fines , Lord Justice PERSON stated that :","\u201c ... an essential prerequisite to a finding of culpable neglect must be the holding of a full means inquiry \u201d .","In NORP ( on the application of PERSON ) v. ORG ( DATE ) , the judge noted that although the means enquiry was inadequate it was miles away from being arguable that the GPE consideration was \u201c so outrageous as to amount to a conduct outwith their jurisdiction \u201d .","In NORP v. GPE Justices ex parte GPE [ DATE ] Rating and Valuation Reporter ( \u201c RVR \u201d ) CARDINAL , an order committing the applicant to prison for non - payment of community charge following the issue of CARDINAL liability orders in respect of non - payment for DATE was quashed as a full means inquiry in respect of each liability order had not been made under regulation CARDINAL ) of the DATE Regulations . Mr Justice PERSON stated as follows during the course of his judgment :","\u201c It is apparent from the wording of the ORG that each liability order is to be considered separately and in respect of each liability order there has to be , as I see it , a decision as to whether there was wilful refusal or culpable neglect shown . \u201d","The above conclusion was followed by Mr Justice PERSON in NORP v. ORG ex parte ORG [ DATE ] ORG CARDINAL at CARDINAL ; by Mr Justice PERSON in NORP v. GPE Justices ex parte PERSON [ DATE ] ORG CARDINAL at CARDINAL ; and by Mr Justice PERSON in NORP v. PERSON Justices ex parte PERSON [ DATE ] ORG CARDINAL at CARDINAL .","In NORP v. NORP ex parte PERSON DATE ) , Mr Justice PERSON stated the following in respect of the burden of proof :","\u201c ... It is necessary in my judgment for Justices to be satisfied not merely on the balance of probability but so that they are sure , following a proper means inquiry , that the debtor \u2019s failure to pay has been due to his or her wilful refusal or culpable neglect to pay , before they can issue a warrant of commitment or fix a term of imprisonment and postpone the issue of the warrant . ...","If I am wrong in this , and if the proper standard is a civil standard , what is at stake for the individual makes it inescapable that only the highest standard of probability is commensurate with the exercise of the power of committal or of fixing a term of imprisonment .","The Justices , on advice , applied neither such standard .","In my judgment a bare balance of probability is not a sufficient standard and their decisions of DATE and DATE to fix terms of imprisonment and postpone the issue of warrants of committal on grounds of culpable neglect can not therefore stand . \u201d","Mr Justice PERSON concluded as follows :","\u201c ... To be open to criticism for the disposal of slender resources is CARDINAL thing ; to be guilty of culpable neglect in the disposal of them is another .","In my judgment the first fixing of the term of imprisonment and the postponement of the warrant were done after a means inquiry too perfunctory to constitute compliance with Regulation CARDINAL(CARDINAL ) . The fixing of a separate term of imprisonment and the postponement of the warrant in DATE , although it followed a much fuller inquiry , was again carried out on the basis of data which were not capable by themselves of founding a finding of culpable neglect to pay , whether on the lower standard of proof that was applied or on the higher standard which , as I have held , ought to have been applied .","Accordingly the applicant succeeds in his application to quash both decisions of the Justices \u201d .","In the case of NORP v. ORG ex parte PERSON ( DATE ) Mr Justice Laws expressly agreed with what Mr Justice PERSON had said in relation to the burden of proof in the above PERSON case .","In NORP v. the NORP Magistrates ex parte PERSON ( DATE ) the magistrates had come to the conclusion that they could not consider attaching the applicant \u2019s liability to pay his community charge to his income support as a viable alternative to prison . Mr Justice PERSON held that , in so concluding , the magistrates were \u201c plainly wrong \u201d and that , as such , there was a \u201c fundamental flaw \u201d in the case . In considering whether to order costs against the magistrates , he concluded :","\u201c I am wholly unable to find that there has been any perverse or outrageous conduct of any kind in this case . These are tricky cases . The law has been evolving in DATE . \u201d","He continued :","\u201c ... Community charge liability should only be visited with prison ( if I may use that shorthand expression ) if there is no other way in which the money can be extracted . Prison is not to be used as a big stick or primarily as punishment but as a means of extracting the liability . \u201d","Mr Justice PERSON stated that there may also have been a flaw in the case because the applicant was DATE at the time at which he was sentenced and the magistrates did not fulfil their requirement publicly to state that there was no alternative but prison in this case . However , he regarded it as unnecessary to conclude the case on that ground in the light of his earlier finding .","Lord Justice PERSON stated in NORP v. ORG , ex parte Mould [ DATE ] RA CARDINAL :","\u201c ... the power to commit to prison which is to be found in reg . CARDINAL is plainly intended to be used as a weapon to extract payment rather than to punish ...","... in the circumstances it might have been appropriate for the magistrate before making his order to ask the charging authority \u2019s representatives if any thought had been given to the possibility of an application to the Secretary of ORG [ for deductions from income support ] . I appreciate that ... a charging authority is not bound to take that course before seeking an order under reg . CARDINAL , but it would be relevant to the exercise of the GPE discretion to know if the possibility of [ deductions ] had at least been considered . \u201d","In NORP v. GPE - under - Lyme Justices , ex parte PERSON [ DATE ] CARDINAL All ER CARDINAL , Lord Justice PERSON stated :","\u201c A failure by justices to consider all possible alternative methods of enforcing payment before issuing a warrant for commitment might render their decision unreasonable in the PERSON sense ... \u201d","In the unreported case of NORP v. PERSON ex parte PERSON ( DATE ) Mr Justice PERSON stated :","\u201c [ A ] court which finds a debtor guilty of wilful refusal to pay the relevant sum has a discretion . The court is not required to commit such a debtor to a term of imprisonment ... Before committing a debtor to prison , it is incumbent upon justices to consider all available alternatives to effect recovery of the sum due ...","It does not follow that , because the applicant had wilfully refused to pay the relevant sum , there was no alternative other than an immediate sentence of imprisonment . Regulation CARDINAL(CARDINAL)(b ) makes that plain ... The applicant had stated that she could pay off the arrears at \u00a3 MONEY per week . This was a relevant factor for the justices\u2019 consideration in the exercise of the discretion conferred , in particular by Regulation CARDINAL(CARDINAL)(b ) ...","In my view the approach of the justices and the decision to commit this applicant to prison was in the circumstances fundamentally flawed . \u201d","R. v. ORG ex parte ORG [ DATE ] CARDINAL JP CARDINAL concerned an applicant who was committed to prison after having failed to pay CARDINAL court - imposed fines . ORG held that a GPE court having inquired into an offender \u2019s means under section CARDINAL(CARDINAL)(b ) of LAW DATE and satisfied itself that the default in payment was due to his wilful refusal or culpable neglect , was under a duty imposed by section CARDINAL(CARDINAL)(b)(ii ) to consider or try all other methods of enforcing payment before issuing a warrant of commitment . In the current case , it held that , on the evidence available , that duty had not been fulfilled and accordingly the application was granted and the CARDINAL committal warrants were quashed .","During the course of his judgment , Mr Justice PERSON stated as follows in relation to section CARDINAL(CARDINAL)(b)(ii ) :","\u201c ... The words of the subsection are peremptory . There is no discretion in the court , they have either to consider or try all the other methods of enforcing payment . \u201d","He continued :","\u201c ... It needs to be emphasised that the proceedings which were taking place on DATE before the Norwich Justices were not proceedings intended to punish the applicant . He had already been before the court for the offences that he had committed and the Justices on those occasions had decided that a fine was an appropriate sentence to pass . When the time came for enforcement , therefore , it was necessary for the Justices to go through the judicial exercise of seeing if there was any other method of enforcing payment of the fine , short of committing the applicant to prison , and that necessarily included a procedure whereby he was examined as to what property or other earnings or income he might have . It is not to be assumed merely on their experience of other cases by the Justices that the proceeding is a formality or unnecessary . \u201d","In NORP v. GPE Justices ex parte PERSON ( DATE ) , the fact that the applicant was under CARDINAL at the time of his committal in respect of failure to pay community charge was accepted by the court to be the \u201c major point \u201d in the case . Mr Justice Laws , in quashing the committal order , concluded that the justices\u2019 decision to commit had been unlawful in that they had failed to have regard to their statutory responsibilities in the case under regulation CARDINAL ) of the DATE LAW I of MONEY DATE . He noted that the power to imprison a person under DATE was only to be exercised if the court was of the opinion that no other method of dealing with him was appropriate and that it was the duty of the court , if of that opinion , to state in open court why the court believed that to be the case . He further noted that the magistrates had failed to state in open court why they believed that no alternative to imprisonment was available , that there was no evidence to show that the magistrates in fact felt that no other method was appropriate , or the reasons why they might so have felt ; and that it was quite clear that alternatives to imprisonment had been available to them . During the course of his judgment , Mr Justice Laws stated that the complaint made in respect of the decision to commit \u201c went to an important aspect of the GPE court \u2019s jurisdiction under regulation CARDINAL [ of the DATE Regulations ] \u201d .","In NORP v. PERSON and Another ex parte PERSON [ DATE ] Queen \u2019s Bench CARDINAL , each of CARDINAL applicants , who were DATE , had defaulted in paying fines arising from summary criminal convictions and had been committed to prison . In each case the warrant of commitment was defective in failing to comply with the duty imposed by section CARDINAL(CARDINAL ) of LAW DATE to describe the justices\u2019 grounds for not placing an applicant of DATE under supervision ; and in failing to state the reason why no other method of dealing with such an applicant other than imprisonment was appropriate , contrary to section CARDINAL(CARDINALA ) of MONEY DATE . In the first CARDINAL cases , the warrants also failed to specify upon what ground they were issued , contrary to section QUANTITY ) of LAW ( which applied to both young and adult offenders ) . ORG held that a warrant of commitment which was defective for failure to comply with the requirements of sections CARDINAL ) or CARDINAL ) of MONEY Courts Act DATE , or section CARDINAL(CARDINALA ) of LAW DATE , was not void , and detention under it was not unlawful , unless and until the warrant was quashed .","DATE . The cases below concern the situation where the applicant was present at the hearing inquiring into his means and circumstances and fixing a postponed sentence of imprisonment , but was absent from the subsequent hearing at which the warrant of commitment was issued ( i.e. ordered to take effect , resulting in the immediate imposition of the previously postponed order of imprisonment ) .","In NORP v. ORG ex parte PERSON [ DATE ] ORG CARDINAL ORG had to determine whether the magistrates were entitled under regulation CARDINAL of the DATE Regulations to issue a warrant of commitment against a charge payer who was absent from the final hearing at which the warrant was issued .","At first instance [ DATE ] ORG , CARDINAL , Mr Justice PERSON held as follows :","\u201c The power to issue a warrant arises after the court has inquired in the debtor \u2019s presence into whether his failure to pay which led to the liability order being made was due to his wilful refusal or culpable neglect and has found that it was . But they need not exercise that power immediately . They can , as here , fix the term of imprisonment and postpone the issue of the warrant on conditions . Section CARDINAL [ of LAW DATE ] then would entitle them to exercise that power ( already vested in them ) \u2018 from time to time as the occasion GPE unless the contrary intention appears . The occasion certainly does not require a repeat of the [ regulation ] CARDINAL ) inquiry . That is water under the bridge . The occasion does require application by the local authority , proper notice of that application to the defaulter to give him a fair opportunity to put his case as to why the warrant should not issue , followed by proof of a breach and notice and proper consideration of any relevant material put forward by the defaulter . That is all the occasion requires , and no contrary intention appears in the regulations .","Therefore it seems to me ... that natural justice requires notification to the applicant of that hearing . \u201d","The above conclusion was approved by the Master of the Rolls , PERSON , in ORG .","Lord Justice PERSON concluded as follows :","\u201c In this context , it goes without saying that it would be essential in , I would think , every case that the debtor be given proper notice of the time and place of the proposed application . If that were not done , the hearing would , I think , be fatally flawed . It is to be expected that , if the debtor were not present , the magistrates would not proceed with the hearing unless satisfied that proper notice of it had been given to the debtor . But if a debtor , having received proper notice , chooses not to attend the hearing , that is his affair , and for the magistrates to proceed in his absence can not , in my opinion , possibly be represented as being in breach of the requirements of fairness or of natural justice . \u201d","In NORP v. PERSON and ORG ex parte ORG [ DATE ] RA CARDINAL , Mr Justice PERSON stated as follows in considering both the nature of the hearing at which the warrant of commitment was issued and the significance of the applicant not having notice of it :","\u201c The magistrates in the present case appear to have accepted that a second hearing was necessary before the warrant of commitment was issued . They were right to do so . They did not apparently , however , consider that it was necessary for the debtor to have notice of the date and time of such a hearing . They clearly thought that she would have nothing new to say . They might well be right , but she is entitled , in my judgment , to be told of the date and time of the hearing as a matter of natural justice . The hearing affects her . It is held in public . She should have the right to be there . I do not , however , accept Mr PERSON \u2019s submission that the hearing can not proceed if she chooses not to attend .","The question arises : on what matter is a debtor entitled to address a court at such a hearing ? Clearly she is entitled to put the authority to proof of non - payment . Further , in my judgment a debtor is entitled to draw the court \u2019s attention to any change of circumstances since the decision to fix a term of imprisonment which renders it inexpedient for the warrant of commitment to issue . There must , in my judgment , be an inherent power in the court to vary its own order in a case where , since the decision was made , the debtor has become incapable of earning , for instance by reason of an accident . \u201d","In NORP v. PERSON Justices ex parte ORG ( DATE ) , Mr Justice PERSON held that , in the absence of sufficient proof of service of notice of the hearing at which the warrant of commitment was issued , the applicant was entitled to succeed on his application for judicial review . Mr Justice PERSON stated as follows :","\u201c The difficulty , though , for the magistrates is , that when there is no appearance before them , they really have no way of telling whether this may be one of those , no doubt , not over frequent cases in which a letter has miscarried for CARDINAL reason or another , perhaps because it has not been delivered or because the charge payer is absent for a continuing period from home , or because , in LOC with a number of separate occupiers , a letter has got into the wrong hands . It seems , therefore , to follow that where there has been service by ordinary post , careful consideration would have to be given to the particular circumstances of the charge payer , before , if ever , concluding that the notice must have come into his hands . \u201d","In NORP v. GPE - upon - Tyne Justices ex parte Devine [ DATE ] ORG , in which notice of the final hearing had been sent by the GPE court to the applicant \u2019s last known address , but was never received by the applicant as he had moved address and therefore did not appear at the hearing , Mr Justice PERSON quoted the above - cited passage of PERSON Justice PERSON in ORG and stated that the magistrates in the present case did not appear to have heeded it . This was notwithstanding that they had previously consented to an order being quashed because they had failed to carry out the appropriate inquiry to make sure that the notice of the final hearing must have come into the charge payer \u2019s hands . Mr Justice PERSON referred to the fact that the magistrates knew that the applicant was intermittently unwell and therefore should also have enquired to ensure that the applicant was not suffering from one of his periodic illnesses at the time of the hearing . In all the circumstances he concluded that \u201c the magistrates were quite wrong to issue a warrant of committal in his absence \u201d and that their decision to do so was \u201c vitiated \u201d .","DATE . In deciding to award costs against the justices , Mr Justice PERSON cited and applied what he had said in a previous case in which magistrates had on CARDINAL separate occasions fallen into the identical error of failing to make appropriate inquiry as to whether or not notice of the final hearing had been received by the applicant :","\u201c That seems to me to be behaviour which calls for strong disapproval , and because the principle which has apparently been ignored is CARDINAL which involves the elementary step of ensuring that the person who is liable to lose his liberty has had an opportunity of knowing that the court was considering that particular course on DATE , it is also a disregard for an elementary principle which every court ought to obey . \u201d","In NORP v. PERSON Justices ex parte PERSON ( DATE ) ( a case concerning the non - payment of a court - imposed fine , unlike the previous cases in this section which all concerned the non - payment of community charge ) , Lord Justice Rose in ORG held as follows :","\u201c [ Counsel for the applicant ] submits that to issue the Warrant for Commitment , with the knowledge which the Justices had [ that she had not received notice of the hearing because that notice had been returned to the Justices marked \u201c address inaccessible \u201d was an act of judicial impropriety and CARDINAL which can properly be characterised PERSON being perverse in that no reasonable bench of Justices would so have acted . ...","...","... I am entirely satisfied that the submissions of [ counsel for the applicant ] advanced to this court are well - founded . This case illustrates how unwise it may be for Justices to make an order committing someone to prison when they do not know , because that person is not before them and because that person does not know of the date of the hearing , what the up - to - date circumstances are . It seems to me that , knowing that the applicant had not been served with notice of the proceedings , the PERSON ought , much more prudently , to have adjourned the question of whether or not a Warrant of Commitment should be issued until such time as she had been served with notice of the proceedings .","... I am satisfied that , in issuing the warrant in the circumstances in which they did , the Justices did act perversely ... \u201d","The case of NORP v. PERSON Justices ex parte PERSON and PERSON ( CARDINAL DATE","The applicable principles are set out in the above - cited ex parte PERSON and PERSON","In NORP v. the Governor of PERSON , ex parte PERSON ( No . CARDINAL ) [ CARDINAL ] CARDINAL All England Reports CARDINAL , ORG held that where the executive had detained a person unlawfully , that person was entitled to recover compensation for the tort of false imprisonment . In that case , the responsibility for calculating the date on which the respondent was to be released from prison lay with the Governor of the prison . He had calculated her date of release to be DATE . However , accepting her arguments on judicial review , ORG held that the release date should actually have been CARDINAL DATE . On appeal to ORG , the Governor accepted that the respondent \u2019s continued detention after DATE had therefore been unlawful . Nevertheless , he contended that he could not be liable for false imprisonment since he had complied with the law as it was understood at the time of his decision . ORG held that the tort of false imprisonment was CARDINAL of strict liability and that its consequences could not be escaped even by showing that the Governor had acted in accordance with the view of the law which at the time was accepted by the court to be correct . There was no lawful justification for the action of the Governor , as the responsibility for calculating the release date lay with him , and not with the order of the court that sentenced the respondent to prison . The respondent was therefore entitled to compensation as it was agreed that her detention after CARDINAL DATE was unlawful .","During the course of his judgment , Lord Hope stated that , as he had decided in her favour on other grounds , it was not necessary for the respondent to rely on her additional argument that the position of the Governor had been contrary to LAW . However , he stated that as the issues that had arisen in the case had raised a novel point of law of some difficulty , it was of interest to see whether the provisions of LAW supported the conclusion which he had determined to represent the present state of the domestic law . In the course of this consideration , Lord Hope stated the following :","\u201c The jurisprudence of ORG indicates that there are various aspects to Art . CARDINAL ) which must be satisfied in order to show that the detention is lawful for the purposes of that Article . The first question is whether the detention is lawful under domestic law . Any detention which is unlawful in domestic law will automatically be unlawful under Art . CARDINAL ) . It will thus give rise to an enforceable right to compensation under Art . CARDINAL(CARDINAL ) , the provisions of which are not discretionary but mandatory . \u201d","A little later in his judgment , Lord Hope continued :","\u201c The question whether detention is or is not lawful under domestic law for the purposes of the ORG is a matter which the jurisprudence of ORG has left for decision by the domestic courts . ORG held that the respondent was entitled to release on CARDINAL DATE . It must follow that under domestic law her continued detention after that date was unlawful . This would indicate that there was a contravention of Art . CARDINAL ) . \u201d","During the course of his judgment , Lord ORG considered the arguments that ORG had presented on behalf of the Governor of the prison , and concluded as follows :","\u201c The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted ; it also confused a valid order which has not yet been set aside with an order which was never valid . These distinctions are basic to any legal system . An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied . But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed . ...","...","The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the LAW case - law as illustrated by PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL . ORG had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Art . CARDINAL ; the ORG disagreed , categorising the order for detention as prima facie valid , and held that there had been no breach of that LAW . ORG and the ORG applied the same criteria in considering whether the detention had been lawful under the domestic law . Paragraph CARDINAL of the judgment ( at CARDINAL ) relied on by ORG does not support his argument :","\u2018 A period of detention will in principle be lawful if it is carried out pursuant to a court order . A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention . For this reason , the GPE organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of facts or ORG","In the present case there was an order ; it was never set aside nor did it have to be . The illegality arose because it did not authorise the detention which took place . The order was not obeyed . \u201d","Magistrates enjoy a statutory immunity from civil liability in certain circumstances . Before the coming into force of section CARDINAL of ORG DATE on DATE , this immunity was provided for by sections CARDINAL and CARDINAL of the Justices of the Peace Act DATE . In brief , a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either ( CARDINAL ) that the act was done maliciously and without reasonable and probable cause , or ( CARDINAL ) that it was performed outside or in excess of jurisdiction .","The position under section CARDINAL of ORG DATE is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction .","Prior to DATE neither the civil nor the criminal legal aid scheme provided for full representation before the magistrates in committal proceedings relating to the non - payment of a fine , community charge , council tax or non - domestic rates . The \u201c Green Form \u201d legal aid scheme provided TIME of help from a solicitor , and could include preparation for a court case , but did not provide for representation . The assistance by way of a representation scheme ( \u201c NORP \u201d ) enabled the court , in limited circumstances , to appoint a solicitor who happened to be within the court precincts to represent a party who would not otherwise be represented . The appointment might be made either of the court \u2019s own motion or on application by a solicitor . The court was under no obligation to advise a party of the possibility of such an appointment . The ORG scheme , which provided representation for the accused in criminal cases before magistrates , did not extend to the proceedings with which this decision is concerned .","Following the ORG \u2019s judgment in PERSON , which found a breach of LAW and PERSON ) of the LAW in respect of the applicant \u2019s complaint of a lack of legal representation , the GPE enacted regulation CARDINAL(CARDINAL ) of ORG ) LAW ( S.I. CARDINAL , No . CARDINAL ) . Under that provision , with effect from DATE , any person whose financial resources are such as to make him eligible is entitled to assistance by way of representation in proceedings before a GPE court in which he is likely to be \u201c at risk of a term of imprisonment being fixed in his case ( whether at the hearing for which ORG is granted or subsequently ) \u201d as a result of his failure to pay any sum which he has been ordered to pay ."],"violated_articles":["5","6"],"violated_paragraphs":["5-1","5-5","6-1","6-3"],"violated_bulletpoints":["5-1-b","6-3-c"],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1","5-5"],"non_violated_bulletpoints":["5-1-b"],"violated":true}
{"itemid":"001-4554","languageisocode":"ENG","respondent":"AUT","branch":"ADMISSIBILITY","date":1999,"docname":"SAHINT\u00dcRK v. AUSTRIA","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant is a NORP national , born in DATE . He is currently living in GPE .","He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .","The applicant lived in GPE with his parents and siblings DATE . He went to school there and later on took up employment . His parents and CARDINAL brother have meanwhile acquired NORP citizenship .","On DATE ORG ) revoked the applicant \u2019s unlimited residence permit . It noted that ORG , on DATE , had convicted the applicant of damage to property and burglary and had sentenced him to CARDINAL months\u2019 imprisonment suspended on probation . On DATE the same court had convicted him of attempted theft and attempted intimidation and had sentenced him to CARDINAL months\u2019 imprisonment suspended on probation . In view of these convictions , both of which were final , the applicant no longer fulfilled the requirements for an unlimited residence permit .","On DATE ORG issued a residence ban of unlimited duration against the applicant on account of his convictions .","On DATE ORG ) , upon the applicant \u2019s appeal , quashed the residence ban against him . It relied on LAW ( PERSON ) according to which no residence ban may be issued against an alien if it would have been possible to grant him citizenship under LAW \u00a7 CARDINAL of LAW , i.e. if he has been resident in GPE without interruption for DATE , before the offences in question were committed , except in case of offences punishable with more than DATE imprisonment .","On DATE ORG dismissed the applicant \u2019s request for a residence permit . His appeal to ORG for the ORG was to no avail .","On DATE ORG issued a deportation order against the applicant . It relied on DATE the DATE LAW , according to which illegally resident aliens are to be ordered to leave the Federal territory . It noted that in addition to his convictions in DATE and DATE , the applicant had been convicted of possession of illicit drugs by ORG on DATE , without an additional sentence being passed . On DATE ORG had convicted him of making illicit drugs accessible to minors and sentenced him to CARDINAL months\u2019 imprisonment . On DATE ORG had convicted him of a number of offences including aggravated fraud , theft , assault and obstructing public authority and had sentenced him to CARDINAL months\u2019 imprisonment . The authority acknowledged that the deportation constituted a serious interference with the applicant \u2019s private and family life . According to PERSON of the DATE LAW a deportation order was only to be issued if it was necessary within the meaning of LAW of LAW . Having regard to the applicant \u2019s repeated convictions including those for drugs offences , which involved particular dangers for public safety , the public interest in deporting him outweighed his interest in remaining in GPE .","On DATE ORG dismissed the applicant \u2019s appeal .","On DATE ORG Verfassungsgerichtshof ) refused to entertain the applicant \u2019s complaint . Subsequently , it referred the case to ORG ( Verwaltungsgerichtshof ) .","On DATE ORG dismissed the applicant \u2019s complaint . It found that the deportation order against the applicant was necessary within the meaning of LAW of LAW in the interests of public safety and the prevention of crime , having regard to his prolonged illegal residence since the withdrawal of his residence permit and the gravity of the offences , in particular the drugs offences , committed by him .","The decision was served on the applicant on DATE .","","On DATE the applicant left GPE and is now living in GPE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-68532","languageisocode":"ENG","respondent":"BGR","branch":"ADMISSIBILITY","date":2005,"docname":"EKIMDJIEV v. BULGARIA","importance":2,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant is a lawyer . His practice includes , inter alia , defending criminal cases at ORG and dealing with applications before ORG . Before becoming a lawyer he worked as a prosecutor at ORG .","In DATE the applicant was acting as defence counsel for a Mr LOC who had been charged with theft and was being kept in detention . TIME lodged an application with ORG , which resulted in a judgment in which violations of LAW , DATE and DATE were found ( see PERSON v. GPE , no . CARDINAL , DATE ) .","In DATE the applicant filed with ORG a habeas corpus petition on behalf of his client , Mr PERSON . A hearing on the petition was listed for DATE before the CARDINALth criminal panel of the court . The panel consisted of a presiding judge , PERSON , and CARDINAL lay judges .","The applicant submits that on DATE he requested to be given access to the case file of the investigation against his client in order to be able to prepare for the hearing . The presiding judge , PERSON , refused to give the applicant access , giving oral instructions to that effect to the court clerk in charge of the file .","At the hearing on DATE the applicant requested an adjournment , stating that he had not been given access to the investigation file by personal order of the presiding judge . The applicant submits that an argument ensued between him and the presiding judge as to whether he should have had access to the file .","DATE the applicant read TIME of the hearing . He submits that he discovered that they did not accurately reflect what had been said at the hearing . They read that his request for an adjournment had been based only on his assertion that he had not read the investigation file and no mention was made of the reasons of him not having read the file . The applicant apparently considered that the wording of the minutes gave the impression that it was his own fault not having read the file .","On DATE the applicant filed an application with ORG , requesting rectification of the TIME . The application read :","\u201c The GPE ORG CARDINALth criminal panel ...","Dear judges ,","At the insistence of the presiding judge , PERSON , incorrect and untrue facts , which do not correctly reflect my statements in my capacity of defence counsel , were recorded in the minutes of the hearing ... held on DATE :","Despite my express request the minutes do not reflect my statement that on DATE judge PERSON personally , by oral order , did not allow me to acquaint myself with the investigation file and that for this reason I consider that the interests of my client were prejudiced .","Instead , my statement was recorded , under the dictation of the judge , as : \u201c I have not acquainted myself with the investigation file \u201d .","The minutes do not reflect my statement that my request of DATE ... in which I ask the presiding judge ... to allow me to acquaint myself with the investigation file has not been put in the case file .","The minutes do not reflect the numerous attempts of the presiding judge to prevent me from adducing arguments in support of my position as to whether the court should proceed with the hearing .","For the above reasons and pursuant to LAW ] I request that the minutes be rectified as necessary so that they reflect the actual statements of the parties .","Only this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents . \u201d","On DATE the applicant complained to the chairperson of ORG that he was not allowed to consult the investigation file and that he could not have this fact entered in TIME of the proceedings .","The applicant submits that on DATE the minutes were corrected to reflect his statement as it actually was . He submits , however , that this was not done in keeping with the proper procedure for the rectification of minutes . On DATE the applicant withdrew his request for rectification of the minutes as having become moot .","Meanwhile , on DATE , judge PERSON complained to ORG , requesting the opening of criminal proceedings against the applicant for having defamed her by stating that in recording in TIME of the hearing of DATE incorrect and untrue facts , which did not correctly reflect his statements , she had committed a \u201c serious procedural violation which bordered on the criminal offence of falsifying documents \u201c .","On DATE ORG opened criminal proceedings against the applicant for having committed the offence of defamation , contrary to LAW in conjunction with LAW ) of LAW ( \u201c the ORG \u201d ) .","The applicant appealed to ORG , arguing that in the circumstances there was no indication of him having committed an offence .","On DATE ORG dismissed the appeal . It reasoned that , contrary to the applicant 's allegations in his application of DATE , his statement that he could not have access to the investigation file because of judge PERSON 's instructions had been entered in the minutes . It went on to state that the mere false imputation of conduct to the judge , without more , was defamatory .","On DATE the chairperson of ORG wrote to the Bar , informing them that , after considering the issue of granting defence counsels in habeas corpus proceedings access to the investigation files of their clients , the judges of the court had decided that there were no legal grounds for refusing such access and that henceforth counsels would be allowed to consult the files .","On DATE the applicant was charged under LAW ( CARDINAL ) in conjunction with LAW ORG with having imputed a crime \u2013falsification of documents DATE to judge PERSON , by having written \u201c [ o]nly this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents \u201d . As a measure to secure appearance at the envisaged trial the applicant was placed under an obligation to not leave the town .","DATE the applicant appealed to ORG . He objected against the charges , arguing that the facts alleged against him did not constitute a crime , but constituted merely the lawful exercise of his procedural rights as a defence counsel .","On DATE the head of ORG of GPE wrote to ORG , requesting the discontinuation of the proceedings against the applicant . He stated that the actions of LOC and ORG were in breach of the law and that the applicant had only exercised his procedural rights . He further stated that the court was a collective body and could not be defamed or insulted within the meaning of the ORG . He also expressed ORG concern that he prosecution had incriminated a routine procedural act performed in pursuance of a counsel 's professional duties . The prosecution had thus infringed a lawyer 's freedom to act in defence of his clients ' rights .","On DATE the investigator in charge of the case concluded that the applicant should be committed for trial .","On DATE ORG ordered that the proceedings be transferred to ORG , as the applicant had formerly been a prosecutor at ORG and the defamation 's alleged victim , judge PERSON , was a judge at ORG .","On DATE ORG discontinued the proceedings against the applicant . It stated that it would not examine whether the applicant had been properly charged , but reasoned that he had neither committed the actus reus of the crime of defamation , nor had the mens rea to commit defamation . In his application of DATE the applicant had used the form of address \u201c dear judges \u201d . Therefore , the application had not been addressed personally to judge PERSON judge had to acquaint herself with the application , which was addressed to the CARDINALth criminal panel of the court , in her professional capacity . By making this application for rectification of TIME the applicant had merely sought to defend the interests of his client , which was , indeed , within his professional obligations . It was also beyond doubt that the words \u201c borders on a crime \u201d featuring in the applicant 's text could not be considered as amounting to the imputation of a specific crime .","Article CARDINAL of the ORG , as in force at the relevant time , provided :","\u201c CARDINAL . Whoever divulges a vilifying fact about another or imputes to him a crime shall be punished for defamation by DATE imprisonment or a fine of MONEY , as well as by public reprimand .","NORP The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed crimes . \u201d","Article CARDINAL \u00a7 \u00a7 CARDINAL ( CARDINAL ) and CARDINAL of the ORG , as in force at the material time , provided that if the defamed person was an official and the defamation was committed against him during or in connection with the performance of his or her duties , the punishment was DATE imprisonment and a public reprimand . Offences under Article CARDINAL \u00a7 \u00a7 CARDINAL ( CARDINAL ) and CARDINAL of the ORG were publicly prosecutable ( LAW , as in force at the relevant time ) .","According to the doctrine , the actus reus of defamation consists of imputing to someone the commission of a crime , i.e. the defamer must state before a third party that the defamed has committed a specific crime , which the defamed has not in fact committed ( PERSON , PERSON \u043f\u0440\u0430\u0432\u043e , PERSON \u0447\u0430\u0441\u0442 , PERSON \u043f\u0440\u043e\u0442\u0438\u0432 \u043f\u0440\u0430\u0432\u0430\u0442\u0430 \u043d\u0430 \u0447\u043e\u0432\u0435\u043a\u0430 , ORG , DATE , \u0441\u0442\u0440. CARDINAL ) . Defamation is completed when CARDINAL party has learned about the defamer 's statement ( i d . , \u0441\u0442\u0440. CARDINAL ) .","Criminal proceedings for a publicly prosecutable crime must be opened whenever the prosecution authorities receive a notification , supported by sufficient information , that a crime might have been committed ( Articles CARDINAL and CARDINAL of LAW ( \u201c the ORG \u201d ) ) . If the notification to the prosecuting authorities was not supported by sufficient information , they had to order a preliminary inquiry in order to determine whether the opening of criminal proceedings was warranted ( LAW ORG , as in force at the material time ) .","LAW ORG provides that when sufficient evidence is gathered that a person has committed an offence , he or she must be charged .","Under LAW ORG , a measure to secure appearance before the competent authority must be imposed in respect of every person charged with having committed a publicly prosecutable crime .","The most lenient such measure is a written undertaking by the accused that he or she would not leave his town without authorisation by the respective authority \u2013 the prosecutor or the court , depending on the stage of the proceedings ( LAW ORG ) .","Section CARDINAL of ORG of DATE ( \u201e \u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043e\u0442\u0433\u043e\u0432\u043e\u0440\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0434\u044a\u0440\u0436\u0430\u0432\u0430\u0442\u0430 \u0437\u0430 \u0432\u0440\u0435\u0434\u0438 , \u043f\u0440\u0438\u0447\u0438\u043d\u0435\u043d\u0438 \u043d\u0430 \u0433\u0440\u0430\u0436\u0434\u0430\u043d\u0438 \u201c ) , which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts , provides , as relevant :","\u201c The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :","...","NORP accusation of a crime , if the accused is acquitted or if the criminal proceedings are discontinued because ... the act committed by the accused is not a crime ... ;","The ORG is liable for all pecuniary and nonpecuniary damages which are the direct and proximate result of the unlawful act ( section CARDINAL ) . The ORG 's liability is strict , i.e. no proof of fault is required ( section CARDINAL in fine ) . An action under the LAW is exempt from the initial payment of court fees ( section ORG ) ) .","Minutes must be kept of all court hearings ( LAW . They must set out , inter alia , all motions , remarks and objections of the parties ( LAW in conjunction with LAW ORG ) . They must be signed by the presiding judge and the secretary of the court ( Article CARDINAL \u00a7 CARDINAL of the ORG ) .","If CARDINAL of the parties considers that the minutes are not complete or are erroneous , it may , within DATE after their drafting , make a written request for their rectification or amendment . The request is first examined by the presiding judge , and if he or she denies it , it is examined in private by the entire court panel ( LAW ORG ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-103881","languageisocode":"ENG","respondent":"RUS","branch":"COMMITTEE","date":2011,"docname":"CASE OF TITARENKO v. RUSSIA","importance":4,"conclusion":"No violation of Art. 6-1","judges":"Anatoly Kovler;Christos Rozakis;George Nicolaou","text":["The applicants were born in DATE and live in GPE .","On DATE the applicants sued the ORG association seeking conclusion of employment contracts .","NORP The Nagatinskiy ORG of GPE ( \u201c the ORG \u201d ) scheduled the first hearing for DATE . Between DATE and DATE CARDINAL hearing was held as planned . CARDINAL scheduled hearings did not take place due to the respondent \u2019s default in appearance or requests for adjournment , QUANTITY hearings had to be postponed following the applicants\u2019 failure to appear or requests for adjournment , and QUANTITY hearings could not proceed as both parties either failed to submit evidence or to show in court altogether .","On DATE ORG considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list .","On DATE the applicants asked the court to reinstate the case to its list claiming that they had not been able to appear at the hearings because the first applicant had been undergoing hospital treatment .","On DATE ORG quashed its earlier decision and reinstated the case to its list . The next hearing was scheduled for DATE . DATE and DATE CARDINAL hearings were held as planned , whereas CARDINAL other hearings were postponed due to the fault of the respondent , CARDINAL for the applicants\u2019 failure to appear , and CARDINAL others for both parties\u2019 default .","On DATE ORG again considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list .","On DATE the applicants asked the court to reinstate the case to its list . On DATE the ORG quashed its decision of DATE after finding that the applicants had not been duly notified of certain unspecified hearings and resumed the proceedings . The next hearing was scheduled for DATE .","NORP The hearing of DATE was adjourned as the respondent did not appear .","On DATE and DATE the hearings were held as planned .","On DATE ORG dismissed the applicants\u2019 claims in full .","On DATE ORG upheld the judgment on appeal .","On an unspecified date the first applicant sued ORG of GPE for recalculation of his pension .","On DATE the Justice of the Peace of ORG of LOC of GPE dismissed his claims .","On DATE the ORG of GPE upheld the judgment on appeal ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-23958","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2004,"docname":"SIEBERT v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by Mr PERSON , of ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","In DATE the applicant was granted a tenancy , by way of an administrative decision , in respect of an apartment situated in a private house in FAC in GPE , subject at that time to the compulsory management of the ORG .","DATE the applicant worked in GPE , apparently living in a hotel . During that period he was registered for a temporary stay in the local register of inhabitants . This temporary registration was only possible on a condition that he had a permanent address elsewhere . On DATE the applicant voluntarily terminated the registration of his permanent residence in ORG . On DATE and on DATE respectively , the municipal authorities cancelled the permanent registration of PERSON and ORG , the applicant 's daughters , in view of the fact that they had emigrated from GPE to GPE .","On DATE the applicant 's tenancy was revoked by means of an administrative decision on the grounds that the applicant had ceased to satisfy the contractual requirements , as he had moved out of his apartment and was registered as a permanent inhabitant in GPE On DATE ORG of the FAC , acting as a second - instance administrative authority , upheld this decision . On CARDINAL DATE ORG dismissed the applicant 's appeal against the decision of DATE .","On DATE the ORG refused to register the applicant as having a permanent address in FAC . On DATE this decision was upheld by the higher administrative authority , which considered that it was beyond dispute that the applicant was not entitled to have a permanent residence at the apartment concerned . He had lost his entitlement following the final decision of CARDINAL DATE , by which the allocation of the apartment to him had ceased to be valid . The applicant had not been living there since DATE , when he had moved out and left it to his daughter . He had also requested that his name be struck off the register of persons having a permanent address there , and had moved into his brother 's apartment in L.","In DATE ORG of the FAC allocated replacement accommodation to the applicant , consisting of a room QUANTITY in size , with the use of a toilet and water tap in a communal flat . The applicant appealed against this decision , alleging that the rescission of the previous tenancy in FAC had been unlawful . On CARDINAL DATE the second - instance administrative authority at the FAC dismissed the applicant 's appeal .","On DATE the Minister of ORG refused to lodge an extraordinary appeal against the judgment of CARDINAL DATE , finding that it was in conformity with the law , particularly as the applicant had moved out of his apartment and registered his permanent address elsewhere , thus clearly relinquishing his entitlement to that apartment .","In DATE the applicant was summoned to vacate the apartment , but the eviction was subsequently stayed at the applicant 's request , and on the objection of the owner of the replacement accommodation .","On DATE ORG dismissed the applicant 's appeal against the decision of CARDINAL DATE , considering that the replacement accommodation met legal standards , and that the applicant 's appeal essentially sought to challenge the revocation of his entitlement to the previous apartment .","In DATE the ORG informed the applicant that he could not be registered with a permanent address at FAC .","On DATE the President of ORG informed the applicant that he would not consider requesting the Minister of ORG to lodge an extraordinary appeal against the judgment of CARDINAL DATE , account being taken of the fact that the allocation of replacement accommodation was the natural consequence of the applicant 's loss of entitlement to the previous apartment .","On DATE ORG of the ORG quashed the decisions of DATE and CARDINAL DATE by virtue of which the applicant had been allocated replacement accommodation . ORG noted that the house in which this apartment was situated was owned by PERSON , who had objected to that accommodation being allocated to the applicant .","On DATE the applicant lodged an action with the ORG for a declaration that the administrative decision of DATE remained valid . He submitted that he had lost the legal title to the apartment following the unlawful DATE decision in which the authorities had flagrantly breached the law , in particular by disregarding the fact that he had never permanently left the apartment . As a result of the decision depriving him of the tenancy contract , he could not be registered as an inhabitant , with all the adverse administrative consequences thereof . He referred to difficulties in obtaining his passport , and to the fact that he was regarded by the authorities as a homeless person . He had encountered difficulties in exercising his voting rights as it was only after persistent efforts that he was eventually registered on the electoral lists .","On DATE ORG refused to entertain his claim , apparently considering that it lacked jurisdiction to examine issues pertaining to the validity of administrative decisions .","In reply to the applicant 's complaint that he had been deprived of his right to vote in the municipal elections in DATE , the Secretary of ORG informed him on DATE that the voters ' lists had been prepared on the basis of municipal electoral lists . These lists included ex officio persons with permanent addresses in the given municipality . Persons temporarily residing in the municipality , who were not so registered could be included in electoral lists , provided that they submitted a request for registration .","In DATE the applicant complained to the FAC that , due to the fact that he did not have an officially registered permanent address , he could not obtain a certificate of entitlement to a share in a privatised ORG ( a ORG share certificate ) . Only those citizens who had a permanent abode were entitled to receive such certificates .","In a reply dated DATE , the applicant was informed that under the applicable laws on privatisation he had not been classified as a person eligible to collect a ORG share certificate , in the absence of a permanent registered address . Nevertheless , as a consequence of a judgment of ORG , confirmed by ORG , the entitlement of persons without a registered permanent address to receive a ORG share certificate had been recognised and such persons would be granted their share certificates in the course of time .","Apparently , the applicant is still living in the apartment in FAC . As he is regarded as staying in the apartment without any legal basis , he is obliged to pay double rent under applicable housing regulations .","DATE on , housing matters were subject to a high degree of state control under successive acts of housing legislation . The most important characteristic of this system , a so called \u201c special lease scheme \u201d was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant . Under these protected tenancies , the tenants paid controlled rent and the owners could not terminate lease by giving notice on the tenant . Although \u201c the special lease scheme \u201d was abolished under LAW , the system of protected tenancy is still applicable to the tenants who had been allocated their apartments on the basis of previous administrative decisions .","The obligation for NORP citizens residing in GPE to register their permanent address in a municipality 's register of inhabitants is stipulated in LAW ( LOC o ewidencji ludno\u015bci i dowodach osobistych z CARDINAL.CARDINAL.CARDINAL ) .","Under LAW , the notion of \u201c living permanently \u201d implies residing at a given address with the intention of making it the principal centre of one 's vital interests .","Article CARDINAL ( CARDINAL ) of the DATE Act provided that : \u201c a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment ( or other dwelling LOC ) concerned . \u201d On DATE the NORP Constitutional Court declared Article CARDINAL ( CARDINAL ) of LAW unconstitutional and , subsequently , this provision was repealed with effect from DATE . As a result of the judgment of ORG , the certificate to the effect that a person is entitled to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered .","Under LAW of DATE and of LAW of DATE a person who has no fixed residence shall be registered , upon his own motion lodged DATE before the election at the latest , as a voter in the electoral list in a commune in which he is staying .","Under LAW of DATE ( LOC o narodowych funduszach inwestycyjnych i ich prywatyzacji ) every citizen of GPE aged DATE or over and permanently residing in GPE was entitled to receive ORG ( ORG ) share certificate ( to be later converted into company stock ) . Under the amended version of this provision , which came into force on DATE , the Minister of ORG and Administration was responsible for drawing up the lists of persons , not having a permanent residence address in GPE , who were entitled to receive a ORG share certificate ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-58977","languageisocode":"ENG","respondent":"AUT","branch":"CHAMBER","date":2000,"docname":"CASE OF T. v. AUSTRIA","importance":1,"conclusion":"Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Criminal charge;Reasonable time);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)","judges":"","text":["On DATE ORG filed an action for payment of NORP schillings ( ORG ) CARDINAL against the applicant on the ground that , following termination of their contractual relationship , the applicant 's current account showed a debit balance for this amount .","On DATE ORG ( Bezirksgericht ) , in summary proceedings , issued an order for payment of the debt ( PERSON ) against the applicant . The applicant , represented by PERSON , filed an objection ( PERSON ) , which ORG received on CARDINAL DATE .","On DATE judge NORP at ORG held a hearing .","On DATE ORG received notice that PERSON no longer represented the applicant . On DATE a hearing which had been scheduled for CARDINAL DATE was cancelled . The ORG submit that this was due to the fact that the applicant 's representative had withdrawn from the case , while the applicant submits that the court was prevented from holding the hearing . Subsequently , CARDINAL DATE was set for the next hearing .","On DATE the applicant , represented by PERSON , filed a counterclaim ( PERSON ) requesting compensation in the total amount of ORG CARDINAL,CARDINAL for loss of interest which had allegedly been caused by the negligent conduct of the bank in connection with a loan taken out by a certain PERSON , for which he , the applicant , had mortgaged his property . Further , he requested a declaratory decision to the effect that a guarantee he had given to ORG in relation to PERSON 's debt was null and void .","On DATE , the bank filed preparatory submissions in reply . It particularly denied that there was a link between the CARDINAL claims at issue .","NORP On DATE judge PERSON at ORG held a hearing .","On DATE , DATE and DATE , judge P. at ORG held hearings . The parties presented documentary evidence and the court heard ORG and PERSON , CARDINAL employees of ORG , and PERSON , the lawyer involved in the case , as witnesses . At the last of these hearings the court decided to join the proceedings concerning the bank 's claim and the applicant 's counterclaim . It also noted that ORG had extended their claim , requesting additional payment of ORG CARDINAL for which the applicant was allegedly liable on account of his guarantee for the debt of E.","On DATE ORG decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and PERSON , which was pending before ORG ( PERSON ) , became final .","On DATE ORG , upon the applicant 's appeal , quashed the decision to adjourn on the ground that , according to the relevant procedural rules , it had to be taken in the course of an oral hearing .","On DATE PERSON informed ORG that she no longer represented the applicant . The applicant was subsequently represented by PERSON","On DATE and DATE , judge PERSON . at ORG held further hearings . The applicant was heard as a party and PERSON was again heard as a witness . At the latter hearing the ORG again decided to adjourn the proceedings until the judgment of ORG in the proceedings between the applicant and PERSON became final .","On DATE ORG , upon the applicant 's appeal , quashed the decision and ordered ORG to continue the proceedings . It found that ORG had wrongly assumed that the proceedings between the applicant and PERSON would resolve a preliminary incidental question . ORG received ORG decision on DATE .","On DATE the applicant extended his counterclaim to a total amount of ORG CARDINAL .","On DATE judge PERSON . at ORG , upon the claimant 's request , adjourned a hearing which had been scheduled for DATE to CARDINAL DATE .","On DATE the applicant informed ORG that he had revoked PERSON power of attorney .","On DATE judge PERSON . made a request to be replaced as she considered herself to be biased on account of certain accusations which the applicant had made against her . On DATE the President of ORG granted her request and assigned the case to judge PERSON hearing which had been scheduled for CARDINAL DATE was cancelled . The applicant was at that time represented by PERSON","On DATE ORG received notice that PERSON no longer represented the applicant .","The next hearing was scheduled for DATE but had to be postponed to CARDINAL DATE upon the claimant 's request .","On DATE the applicant requested legal aid . Upon ORG request , he supplemented his application on DATE .","On DATE ORG dismissed the applicant 's request for legal aid .","On DATE , who had been appointed as the applicant 's representative by ORG under section CARDINAL of LAW ( Rechtsanwaltsordnung ) - applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him - requested that the hearing scheduled for DATE be postponed . The applicant claims that he had only requested the appointment of counsel for this specific request , while the Lawyer 's Chamber appointed PERSON to represent him in the further proceedings .","On DATE ORG upon the request of PERSON postponed the next hearing which had been scheduled for DATE to CARDINAL DATE .","On DATE PERSON requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant . ORG dismissed the request . The applicant submits that he was unaware that PERSON acted as his counsel and that the latter had tried to contact him at a wrong address . He further claims that the summons to appear personally at the hearing of DATE was not correctly served on him .","On DATE judge A. at ORG held a further hearing and admitted the extension of the applicant 's counterclaim .","On DATE ORG received notice that PERSON no longer represented the applicant .","On DATE ORG cancelled the date for the next hearing which had been set for DATE . It noted that , in the proceedings at issue , the parties were obliged to be represented by a lawyer ( NORP ) . As the applicant had requested legal aid ( see paragraph CARDINAL below ) and was currently not represented , the hearing could not take place .","On DATE judge PERSON at ORG set DATE as a date for the next hearing . In the summons the applicant was informed that he had to be represented by counsel at the hearing . Should he not be represented , he would be considered as being in default . Upon the claimant 's request the hearing was postponed to DATE .","On DATE neither of the parties appeared at the hearing . Consequently , the proceedings were stayed ( Ruhen des PERSON ) . So far , neither of the parties has requested their continuation .","On DATE the applicant requested legal aid . He submitted a declaration of means , according to which he had no income , property , savings or other assets . Further , he declared that he had debts with ORG and the Sch . limited company . The standard form for this declaration contained a warning that , in case legal aid was obtained improperly by making false or incomplete statements , a fine for abuse of process ( PERSON ) could be imposed .","In his accompanying submissions the applicant stated , inter alia , that until DATE he had received ORG DATE from ORG Company . As of DATE he was without income and was moreover obliged to pay back any payments he had received from that company . His old - age pension was only due as of CARDINAL DATE . Further , the applicant stated that he had no relatives and received support from a few acquaintances .","On DATE judge Er . at ORG ordered the applicant to provide further information . He was requested to submit the names and addresses of the persons supporting him , and to specify the amounts , intervals and means of their payments . Further , the applicant was requested to submit a number of supporting documents .","On DATE the applicant submitted that he received ORG CARDINAL per week from a certain PERSON also submitted a number of documents .","On DATE ORG , without a hearing , dismissed the applicant 's request for legal aid and imposed a fine of ORG CARDINAL for abuse of process . Referring to the applicant 's declaration of means and his further submissions , it found that the applicant had made incomplete or false statements . In particular he had declared that he was without income since DATE and only received ORG DATE . However , the documents submitted by him showed that he had paid his rent of ORG CARDINAL from DATE to DATE . As the total income which he claimed per DATE was less than this sum , it could not be deduced from his submissions how he had been able to pay his rent . Finally , the ORG noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted improperly to obtain legal aid .","On DATE the applicant appealed against this decision .","On DATE ORG , sitting in private , dismissed the applicant 's appeal . It found that ORG had rightly rejected the applicant 's request for legal aid . The applicant 's submissions that he had savings which allowed him to pay his rent from DATE , constituted new facts which were inadmissible in the appeal proceedings . In his request for legal aid he had stated that he had received no income since DATE and depended on the support of acquaintances . Upon the ORG 's request to supplement his submissions , the applicant had specified that he received ORG CARDINAL per week as support . He had not , however , stated that he had any savings to cover his maintenance . ORG had rightly concluded that he had made incomplete or false statements and had , thus , failed to show that the costs of the proceedings would endanger his means of livelihood . It had also correctly imposed a fine for abuse of process in accordance with section CARDINAL of the Code of Civil Procedure ( Zivilprozessordnung ) .","On DATE ORG issued an order for payment of the fine for abuse of process .","On DATE ORG , referring to section QUANTITY of LAW , noted that an attempt to collect the fine had been futile , and converted the fine into CARDINAL days\u2019 imprisonment . The applicant was informed that he could lodge an appeal against this decision . It appears that the applicant did not do so .","Section CARDINAL of the Code of Civil Procedure ( Zivilproze\u00dfordnung ) provides that a court shall impose a fine for abuse of process of up to CARDINAL times the amount provided for in section QUANTITY CARDINAL of the same Code ( namely ORG CARDINAL,CARDINAL ) on a litigant who obtains legal aid improperly by making false or incomplete statements .","Section CARDINAL provides inter alia that a fine for abuse of process may not exceed ORG CARDINAL ( paragraph CARDINAL ) . In the event of an inability to pay , the fine shall be converted into imprisonment . The length of imprisonment shall be determined by the court , but may not exceed DATE ( paragraph CARDINAL ) .","According to section CARDINAL of the Code of Civil Procedure an appeal ( PERSON ) lies against any decision of a court , unless it is explicitly excluded .","Section CARDINAL of LAW ) deals with fines ( PERSON ) . It provides that fines shall be expressed as day - fines . They shall not amount to DATE - fines ( paragraph CARDINAL ) . Day - fines shall be fixed according to the offender \u2019s means and personal circumstances at the time of the judgment at first instance . However , they shall not amount to less than ORG DATE or more than ORG CARDINAL ( paragraph CARDINAL ) . If a fine proves to be irrecoverable , a sentence of imprisonment in default shall be passed . DATE imprisonment in default shall correspond to CARDINAL day - fines ( paragraph CARDINAL ) ."],"violated_articles":["6"],"violated_paragraphs":["6-1","6-3"],"violated_bulletpoints":["6-3-b"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-77778","languageisocode":"ENG","respondent":"SVN","branch":"CHAMBER","date":2006,"docname":"CASE OF MATKO v. SLOVENIA","importance":3,"conclusion":"Preliminary objections allowed (Article 35-1 - Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"David Th\u00f3r Bj\u00f6rgvinsson;John Hedigan","text":["The applicant was born in DATE and lives in LOC .","On DATE and DATE a ORG ( Specialna enota ) , which was under the direct control of ORG ( \u201c the ORG \u201d ) in cooperation with officers from the ORG ( Uprava za notranje zadeve \u2013 hereinafter referred as the \u201c Slovenj Gradec Police \u201d ) undertook a large - scale operation against the activities of a criminal organisation presumed to be operating on the territory of the town of LOC .","On DATE the officers twice entered a coffee bar in FAC , called \u201c FAC \u201d , searching for members of the above - mentioned criminal organisation . In parallel to the investigation of FAC , the police carried out an extensive operation in the town and its surroundings .","On DATE at TIME the applicant , driving a car , was arrested in LOC by officers of ORG and ORG . He was brought to ORG for having allegedly failed to comply with the police orders . He was questioned by the police and released on DATE at TIME .","There are CARDINAL conflicting versions of what occurred during the police procedure and the transport to the police station .","According to his submissions before the ORG and the statements he gave in the relevant domestic proceedings , the applicant was driving through the centre of LOC on TIME of DATE when CARDINAL cars overtook him and forced him to stop . CARDINAL armed officers , wearing black jackets , arrived at the scene , some of whom approached the applicant . They were shouting and the applicant , still sitting in the car but attempting to step out , put his hands up . At that moment , the officers dragged him out of the car . They pushed him to the ground , tied him up , took off his shoes , dragged him by his legs QUANTITY along the road into a dark area where they beat and kicked him for TIME . After someone had said \u201c he \u2019s had enough , he \u2019s had enough \u201d , the applicant was placed in an off - road vehicle and taken to the police station . On the way there , a journey which lasted TIME , CARDINAL officers , sitting in the front of the car , threatened to kill him and CARDINAL of them electro - prodded him several times with a stun gun . At the police station , he was put in the room for provisional detention ( prostor za pridr\u017eanje ) where CARDINAL of the officers untied him at his request . The applicant was questioned and told that he had failed to comply with the police order to stop his vehicle . He was then released .","In the meantime , the police also searched the applicant \u2019s car .","About thirty people were arrested and injured during the DATE operation .","According to the version of events given by the Government , the police noticed a car moving at high speed . Since the conduct of the driver looked suspicious , the police decided to stop the car , to identify the driver and to perform a preventative search . For this reason , they drove after the car . The driver accelerated , prompting the police to force him to stop .","When the driver , who was later identified as the applicant , stopped the car , an unspecified number of ORG officers confronted him and informed him that this was a police procedure . The applicant jumped towards CARDINAL of the officers and attempted to hit him . The officer managed to block his blow and then with the other officers forced the applicant to lean against his car in order to search him . The applicant struggled free and escaped .","When the officers caught him , the applicant again tried to resist and they responded by using truncheons and gripped his elbow to handcuff him , knocking him down in the process . Since the applicant continued to resist , the officers tied his wrists with a plastic cord . They subsequently took him to the police station on suspicion of committing the criminal offence of \u201c obstructing an official in the course of his duties \u201d ( prepre\u010ditev uradnega dejanja uradni osebi ) . The applicant was released after questioning .","The officers were authorised to use force on the basis of section CARDINAL of LAW . During the operation , they wore vests with the visible sign \u201c Police \u201d ( \u201c GPE \u201d ) . In their later submissions , they stated that CARDINAL officers had used force against the applicant .","During the police procedure , the applicant did not request medical aid and the police only afterwards learned that he had sustained injuries . In addition , he did not complain about the conduct of the officers during the procedure .","The judgment of CARDINAL DATE issued in the proceedings instituted against the applicant ( see paragraph CARDINAL ) , established that CARDINAL officers of ORG , PERSON , PERSON and PERSON , who were in the car which stopped the applicant , received information about the location of a \u201c white Golf \u201d , believed to be being driven by the applicant , and an order to stop it .","Officer PERSON testified in the criminal investigation instituted against the applicant , that they had received information that the \u201c white Golf \u201d had left \u201c the place \u201d , which meant that it had left PERSON . He was not able to comment on the speed of the applicant \u2019s car . In addition , he stated that by the time a minute had gone by after the applicant was stopped , there were already CARDINAL vehicles of ORG and ORG at the scene and that CARDINAL officers arrived in each vehicle .","Officer PERSON stated in the same criminal investigation :","\u201c We had information about individuals who were suspected members of that [ criminal ] organisation , and CARDINAL of them was PERSON , whom I did not know since I am from GPE , but I knew him from photographs . ( ... ) We were on one of the streets of FAC when we received information that the car of PERSON had been seen and that our colleagues had tried to stop him , but he would not stop despite warnings . \u201d","Officer PERSON explained in his testimony in the above mentioned criminal investigation :","\u201c At the critical time , we were conducting , in the territory of ORG , an operation to investigate organised crime . ( ... ) In front of FAC , a group of people was noticed which included GPE and PERSON . CARDINAL of the police patrols noticed that PERSON left with the motorcycle and they also saw when PERSON drove away . In fact , everything happened very quickly ( ... ) . We placed vehicles at different locations ( ... ) . Our official vehicle , which I was driving , received a message that a white Golf was being driven by a person believed to be PERSON ( ... ) . We decided to stop him in order to search the car since there was a suspicion that he was armed . \u201d","Another officer from ORG , ORG , who had arrived at the scene with the officers of ORG and was also questioned in the criminal investigation , stated that there were CARDINAL officers of ORG at the scene , and that CARDINAL of them had had direct contact with the applicant .","On DATE , soon after his release , the applicant was admitted to ORG where he stayed until TIME The medical report , written by a doctor in that hospital , stated that the applicant had bruises on his head , but did not include any details of the injuries . The applicant was advised to rest for DATE .","DATE , DATE , the applicant sought medical aid in ORG . There , he also explained to a doctor that on CARDINAL DATE he had been beaten by unknown armed persons . The medical report of DATE indicates several lesions , including :","- bruises on the right eye and a small amount of suffusion in the surrounding area ;","- a haematoma on the left side of the forehead","- a painful nose ;","- a QUANTITY by QUANTITY haematoma on the left shoulder ;","- CARDINAL - CARDINAL cm linear skin abrasions on the left side of the thorax ;","- a child\u2019s - hand - sized moderate oedema behind the right ear ;","- an extensive haematoma on the left thigh .","The doctors had also suspected a fracture of the right temporal bone . The report of an x - ray examination on DATE indicated that there was a hairline fracture ( fissura ) .","On DATE the applicant went to the ORG Police and made an oral complaint against the officers of the Special Unit concerning the events of DATE . A written statement was prepared by the officer in charge and signed by the applicant .","In his statement , the applicant alleged that CARDINAL to CARDINAL officers had dragged him to the metallic fence of the construction site behind ORG where they had beaten him , shouted at him and threatened to kill him . He further stated that while being driven to the police station he had been beaten again , and given electric shocks with the special truncheons . He had not known where the police were driving since his head was pointing downwards the whole way . He also described the injuries he had sustained during the police procedure .","On CARDINAL DATE the applicant lodged , through his lawyer , a written criminal complaint ( kazenska ovadba ) with ORG against unidentified police officers for causing minor bodily harm ( lahka telesna po\u0161kodba ) and an unlawful deprivation of liberty ( protipraven odvzem prostosti ) . The complaint mentions the names of CARDINAL officers , PERSON and PERSON , who were present at the scene but not involved in the alleged ill - treatment . The applicant proposed that the names of the officers who had allegedly ill - treated him be obtained from those officers and that criminal proceedings be introduced .","On DATE the FAC District Public Prosecutor \u2019s Office ( NORP dr\u017eavno to\u017eilstvo ) asked the applicant \u2019s lawyer to add his client \u2019s deposition to the file , which he did on DATE . On DATE and DATE the applicant \u2019s lawyer sought information from ORG about the state of progress in the proceedings .","In the meantime , on DATE , the Slovenj Gradec District Public Prosecutor ( the \u201c Public Prosecutor \u201d ) requested the Slovenj Gradec Police to identify the officers who had participated in the procedure against the applicant and to conduct an interview with them . Subsequently , CARDINAL reports concerning the relevant police operation were submitted to ORG : CARDINAL by the ORG on DATE and CARDINAL by ORG Police on DATE . They are each approximately one page and a CARDINAL long and their content corresponds to the facts as submitted by the Government .","It transpires from the ORG \u2019s report that , on DATE , the ORG had appointed a \u201c working group \u201d ( delovna skupina ) consisting of officers from ORG and the ORG to assess the lawfulness of the procedures carried out by ORG and ORG . ORG has not received any documents produced or obtained by this working group , except the above - mentioned ORG report . The latter , which under the \u201c subject \u201d ( zadeva ) refers solely to the criminal offence allegedly committed by the applicant , reads as follows :","\u201c Further to the analysis of procedures and activities which had taken place on CARDINAL and DATE , the working group established that all the measures and procedures were lawful and in accordance with legal powers and professional rules .","( ... )","The procedure against PERSON was carried out by criminal investigators PERSON , PERSON , M.F , ORG , ORG and officers of the ORG \u2019s ORG , who were headed by PERSON ( ... ) .","On DATE , at CARDINAL , PERSON actively resisted the lawful procedure against him with the intention of preventing criminal police investigators from performing their official duties . Since their official duty could not be carried out otherwise , physical force and handcuffs were used against PERSON in accordance with police powers .","From the facts described above and from the contents of the criminal complaint [ lodged against the applicant ] it is evident that there exists a reasonable suspicion [ utemeljeni sum ] that PERSON on DATE at CARDINAL committed the criminal offence of obstructing an official in the course of his duties within the meaning of section CARDINAL\/II of LAW of GPE .","( ... )","The criminal complaint of the Slovenj Gradec Police states that PERSON sustained injuries as a result of the use of force . ( ... ) On the basis of the facts , stated in the FAC Gradec Police \u2019s criminal complaint , there are no grounds for suspicion that the officers of the special working group of ORG [ the officers of ORG and ORG ] committed the alleged criminal offences ( ... ) \u201d","The Slovenj Gradec Police report finds , inter alia , that PERSON and PERSON stopped the applicant \u2019s car and that ORG officers were under the command of PERSON It explains that the Head of ORG was authorised to give statements concerning the procedure of ORG .","On DATE ORG issued a decision dismissing the applicant \u2019s criminal complaint . It was served on the applicant \u2019s lawyer on DATE .","In the decision ORG identified PERSON , PERSON and PERSON as the officers accused in the applicant \u2019s complaint . After giving a summary of the applicant \u2019s allegations , ORG concluded :","\u201c In the course of the proceedings , the additional information concerning the above - mentioned criminal complaint by ORG and ORG of the Minister \u2013 were obtained . This enabled it to be established that the above - mentioned officers , all employees of the ORG , had participated in the procedure against the applicant .","It would appear from the already mentioned report of ORG of the Minister \u2013 that the employees of the ORG acted in accordance with their powers .","In addition , on DATE , a request for an investigation against PERSON was lodged with the investigating judge in the LOC ORG , for , among other matters , obstructing an official in the course of his duties ( ... ) .","In view of the above considerations , the accused PERSON , PERSON and PERSON acted in the framework of their duties and powers , which they have as employees of the PERSON , and therefore there is no reasonable suspicion ( utemeljeni sum ) that they committed the alleged criminal offences ( ... ) .","For those reasons , the criminal complaint must be dismissed . \u201d","The decision drew the applicant \u2019s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor ( see paragraphs CARDINAL and CARDINAL below ) within DATE . He did not avail himself of this opportunity .","On DATE the ORG Police lodged a criminal complaint against the applicant for the criminal offence of \u201c obstructing an official in the course of his duties \u201d under section CARDINAL , paragraph CARDINAL - CARDINAL of LAW , which referred to the same incident as the applicant \u2019s criminal complaint .","On DATE ORG requested the Slovenj Gradec ORG to open a criminal investigation against the applicant . It appears that her request was based on the above - mentioned reports of the ORG and ORG ( see paragraphs CARDINAL ) .","On DATE the investigating judge questioned the applicant . The applicant denied having committed any offence and complained that he had been beaten and ill - treated by the police . He pointed out that he had medical reports proving his injuries . The reports were included in the file .","On DATE , further to a proposal of the investigating judge , the ORG decided not to open a criminal investigation against the applicant . The court pointed out , inter alia , that the officers who were allegedly attacked by the applicant had not been identified and that the ORG \u2019s report , stating that a special operation for the investigation of serious crimes was in progress at that time , and ORG request for the investigation , which stated that the applicant was arrested because of his excessive speed , were contradictory .","On DATE ORG appealed against this decision . On DATE ORG upheld her appeal finding that , despite the shortcomings mentioned in the first - instance decision , there were sufficient grounds for suspicion that the applicant had committed the alleged offence . Accordingly , it changed the first - instance court \u2019s decision and opened a criminal investigation against the applicant .","Between DATE and DATE the investigating judge interviewed CARDINAL officers from ORG who had participated in the operation , the officer PERSON , who had been responsible for the officers of ORG , and PERSON , who had allegedly witnessed the incident .","When asked to comment on the applicant \u2019s allegations , the officers either denied the alleged ill - treatment or stated that they could not have seen the events well enough . PERSON testified in favour of the applicant , saying that he had not resisted but had been seriously beaten by the officers .","On DATE the criminal investigation was concluded with the investigating judge \u2019s decision ordering the exclusion of certain documents from the case - file in accordance with section CARDINAL , paragraph CARDINAL , of LAW . It is not known when that decision was served on the applicant .","On DATE ORG filed an indictment against the applicant for \u201c attempting to obstruct an official in the course of his duties \u201d ( poskus kaznivega dejanja prepre\u010ditve uradnega dejanja uradni osebi ) .","On DATE the applicant filed an objection to the indictment . He pointed out that he had been ill - treated and referred to the statements he had previously given in the proceedings . He also mentioned that he had lodged an application with the ORG . His objection was rejected by the Slovenj Gradec ORG on DATE .","On DATE and CARDINAL DATE the Slovenj ORG held hearings . The court heard the applicant , and all the officers who had been questioned in the investigation and PERSON","By a judgment of CARDINAL DATE the court acquitted the applicant . The court , acknowledging that the applicant had sustained injuries on the relevant DATE , concluded that there had been \u201c physical contact \u201d between the applicant and the officers . The court , however , found that it had not been proven that the applicant had physically resisted the officers as described in the indictment since none of ORG officers who had had physical contact with the applicant had been identified and there were no documents describing the conduct of the applicant after he had been stopped .","On DATE ORG appealed against the judgment and on DATE ORG quashed the judgment and remitted the case to a new panel for retrial .","During the retrial , hearings were held on DATE and DATE . At the second hearing the court heard a new witness , ORG , at the applicant \u2019s request .","By a judgment of DATE , the ORG convicted the applicant as charged and sentenced him to CARDINAL months\u2019 imprisonment , suspended for DATE . The court found :","\u201c Although it was not known which officers of ORG were involved in the procedure after the applicant \u2019s car had been stopped , the officers questioned sufficiently described the acts and the order of events as observers . They could also not have been influenced by anything and therefore they could be entirely trusted . On the contrary , it was impossible to trust either of the witnesses PERSON and ORG , since it clearly transpires from their testimony that they knew the applicant well ; they also confirmed that they knew him . Although the first witness was able to describe the events immediately after the operation , ORG \u2019s testimony was unclear and biased in favour of the accused since he said that the officers had beaten the accused with truncheons all over his body and shouted , while it transpired from the medical documentation that he sustained injuries only on the upper part of the body , which is usual for this sort of measure .","The conduct of the accused ( ... ) undoubtedly shows ( ... ) all the elements of the criminal offence ( ... ) since his conduct undoubtedly represented an active form of resistance against the police officers and force was also directed against the officers , though the latter in the interest of protecting the data concerning employees of ORG were not questioned . In any event , given the sufficiently convincing testimony of witnesses questioned in the proceedings \u2013 police officers \u2013 questioning of the employees of ORG was not necessary ( ... ) . \u201d","The court also found that the applicant had not injured any of the officers involved .","DATE . On DATE ORG appealed against this judgment and applied for a heavier sentence . The applicant also appealed .","On DATE ORG upheld the conviction but amended the judgment with respect to the costs of the proceedings . The applicant did not appeal to ORG .","Lastly , on DATE the Slovenj ORG ordered the applicant to pay an additional sum to cover the costs of CARDINAL of the witnesses heard during the proceedings . On DATE , the proceedings were \u201c finally concluded \u201d ( pravnomo\u010dno kon\u010dan postopek ) .","At the material time , conditions for the use of force by the police were regulated by ORG ( Zakon o notranjih zadevah , ORG , no . CARDINAL with amendments , in force until DATE ; hereinafter referred as the \u201c ORG \u201d ) . Section CARDINAL of the ORG stipulated , inter alia , that a police officer could use force ( fizi\u010dna sila ) in the performance of his duties to overcome the resistance of a person who refused to comply with the legal orders of the police . The Guidelines for the Use of Coercive Measures , issued by the then Secretary of ORG Navodilo o uporabi prisilnih sredstev , ORG , no . CARDINAL , in force until DATE ) , further specified that a police officer could in the cases referred to in section CARDINAL of the ORG exceptionally use truncheons , punches , and means of restraint , when he encountered active resistance or an attempt to evade arrest .","In general , acts of ill - treatment resulting in physical harm are punishable under various provisions of LAW of GPE ( PERSON zakonik PERSON , ORG no . CARDINAL ) prosecution being mandatory . In the case of the offence of inflicting \u201c minor bodily harm \u201d prosecution is triggered by the aggrieved party \u2019s official complaint lodged with the police or the public prosecutor . However , when minor bodily harm is caused by a public official , e.g. a police officer , this will constitute a delictum proprium , i.e. the offence of \u201c violation of human dignity by abuse of office or official duties \u201d , for which prosecution is mandatory : notwithstanding the absence of a complaint by the aggrieved party ( o\u0161kodovanec ) .","Among the offences defined by LAW , the following are relevant for the present case :","Minor bodily harm , section CARDINAL","\u201c ( CARDINAL ) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body , his temporary inability to work , the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not DATE .","...","( CARDINAL ) Prosecution of the offence defined in the first paragraph shall be initiated upon a complaint . \u201d","Violation of human dignity by abuse of office or official duties , section CARDINAL","\u201c An official exercising his office who , by abuse of his office or official duties , treats another person badly , insults him , inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity , shall be sentenced to imprisonment for not DATE . \u201d","Unlawful deprivation of liberty , section CARDINAL","\u201c ( CARDINAL ) Whoever unlawfully incarcerates another person or keeps him incarcerated or otherwise deprives him of the freedom of movement shall be sentenced to imprisonment for not DATE .","( CARDINAL ) NORP If the offence under the preceding paragraph is committed by an official through the abuse of office or of official authority , such an official shall be sentenced to imprisonment for not more than three years .","... \u201d","Obstructing an official in the course of his duties , section CARDINAL","\u201c ( CARDINAL ) Whoever , by force or threat of imminent use of force , prevents an official from performing an official act , which he intended to perform within the scope of his official duties , or whoever in the same manner compels an official to perform an official act , shall be sentenced to imprisonment for not DATE .","...","( CARDINAL ) Whoever commits the offence under the first or third paragraphs of the present section against an official exercising a task of national or public security , pursuing the perpetrator of a criminal offence or guarding a detained person , shall be sentenced to imprisonment for not DATE . \u201d","Criminal proceedings in GPE are regulated by LAW ( Zakon o kazenskem postopku , ORG no . CARDINAL ; hereinafter referred to as the \u201c CPA \u201d ) and based on the principles of legality and officialness ; the prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exist that a criminal offence , subject to mandatory prosecution , has been committed . Section CARDINAL of the CPA provides :","\u201c The public prosecutor shall be obliged to institute criminal proceedings if there is a reasonable suspicion that a criminal offence subject to mandatory prosecution has been committed , unless provided otherwise by the present Act . \u201d","Public prosecutions are conducted by the public prosecutor \u2019s office , an autonomous body within the justice system ( LAW , PERSON , ORG no . CARDINAL ) . However , when the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the proceedings , the aggrieved party has the right to take over the proceedings in the capacity of a subsidiary prosecutor ( subsidiarni to\u017eilec ) ; that is as an aggrieved party acting as a prosecutor ( CPA , section CARDINAL\/CARDINAL ) . A subsidiary prosecutor has , in principle , the same procedural rights as the public prosecutor , except those vested with the public prosecutor as an official authority ( CPA , section CARDINAL\/CARDINAL ) . If the subsidiary prosecutor takes over the proceedings , the public prosecutor is entitled at any time pending the conclusion of the main hearing , to resume management of the prosecution ( CPA , section CARDINAL\/CARDINAL ) . In reality , however , DATE statistics show that out of CARDINAL cases initiated by subsidiary prosecutors at a number of first - instance courts DATE most were either still pending or had ended in favour of the accused ; in CARDINAL cases the accused was convicted and in CARDINAL cases the proceedings were handed over to the public prosecutor ( see paragraph CARDINAL below ) .","NORP criminal proceedings are divided into CARDINAL stages \u2013 preliminary proceedings ( predkazenski postopek ) , conducted by the police and the public prosecutor ; criminal investigation ( preiskava ) , conducted by the investigating judge of the district court , and trial ( glavna obravnava ) , conducted before mixed panels of professional judges and lay - judges at district court level or a single professional judge of the local court . Proceedings falling under the jurisdiction of local courts ( offences punishable by a fine or imprisonment of not DATE ) are summary proceedings ( skraj\u0161ani postopek ) , which do not include the stage of a criminal investigation .","Preliminary proceedings are initiated either upon a criminal complaint lodged by any person with the police or the public prosecutor ( CPA , section CARDINAL ) or upon the police or the public prosecutor being informed by any means whatsoever of a situation that gives rise to \u201c reasons for suspicion \u201d ( razlogi za sum ) , i.e. less than reasonable suspicion , that an offence which is subject to mandatory prosecution has been committed . In this respect , paragraph CARDINAL of section CARDINAL of the CPA provides :","\u201c If there are reasons for suspicion that a criminal offence subject to mandatory prosecution has been committed , the police shall be obliged to take steps necessary for pursuing the perpetrator , ensuring that the perpetrator or his accomplice do not go into hiding or flee , discovering and securing traces of crime or objects of value as evidence , and collecting all information that may be useful for the successful management of criminal proceedings . \u201d","In addition , paragraph CARDINAL of section CARDINAL of the CPA reads as follows :","\u201c If the public prosecutor is unable to infer from the criminal complaint whether the allegations contained in it are probable , or if information in the criminal complaint does not provide sufficient basis to request investigation , or if the public prosecutor has only been informed about a criminal offence and , in particular , if the perpetrator is not known , the public prosecutor may request the police to collect the necessary information which he can not collect himself or through other agencies and to take other measures in order to discover the criminal offence and the perpetrator ( sections CARDINAL and CARDINAL ) . The public prosecutor shall be entitled to ask the police at any time to notify him of what they have undertaken and they shall be under an obligation to reply without delay . \u201d","In the preliminary proceedings , most of the activities are carried out by the police , who , like the public prosecutor , do not have discretion as to whether to act ( CPA , section CARDINAL ) , i.e. they must pursue the investigation ex - officio . However , it is the public prosecutor \u2019s statutory right and duty to ensure that the facts are sufficiently investigated in order to decide whether or not there should be a prosecution ( CPA , sections CARDINAL , DATE and CARDINAL\/CARDINAL ) .","If the evidence from the criminal complaint is inconclusive or if the perpetrator is not identified , the public prosecutor may request the police to collect further necessary information and report back to him or her on the results ( CPA , section CARDINAL\/CARDINAL , above ) . When , even after such additional measures were taken , the public prosecutor concludes that there is no reasonable suspicion ( utemeljeni sum ) that a specific person committed a criminal offence or the perpetrator can not be identified , the criminal complaint must be dismissed ( CPA , section CARDINAL\/CARDINAL ) . Following the dismissal of the criminal complaint , the public prosecutor must within DATE notify the aggrieved party of the dismissal ( CPA , section CARDINAL\/CARDINAL ) .","Conversely , when the standard of reasonable suspicion is satisfied , the investigating judge , upon the request of the public prosecutor or subsidiary prosecutor , opens a criminal investigation into the alleged criminal offence ( CPA , sections CARDINAL and CARDINAL ) . The prosecutor \u2019s request for investigation must specify , inter alia , the person against whom an investigation is requested ( CPA , section CARDINAL ) . The investigation is conducted only for the criminal offence and only against the accused specified in the investigating judge \u2019s decision opening the investigation . However , if during the investigation a suspicion is raised of another criminal offence or of another suspect , the investigating judge must notify the public prosecutor thereof . Paragraph CARDINAL of section CARDINAL of the CPA provides as follows :","\u201c If , in the course of investigation , it appears that the proceedings should be expanded to cover another criminal offence or an offence against another person the investigating judge shall notify the public prosecutor accordingly . In this case investigative acts that call for urgent attention may be performed and the public prosecutor should be informed of everything that has been done . \u201d","The investigating judge may at any time during the investigation terminate the proceedings if he determines that the act under investigation is not a criminal offence or if there is not enough evidence that the accused has committed a criminal offence ( CPA , section CARDINAL ) .","At the end of investigation , when the investigating judge decides that a case has been investigated to the extent that an indictment can be made out , he must send the case - file to the public prosecutor ( CPA , section CARDINAL ) . Before doing that he must eliminate from the case - file all contaminated evidence ( exclusionary rule ) . He must also eliminate from the file all information obtained by the police directly from the accused and from certain other persons in the preliminary proceedings : such information is denied the status of legitimate evidence and can not constitute the basis of the indictment or the judgment ( CPA , section CARDINAL ) .","In summary proceedings before a local court , the criminal proceedings start with the bill of indictment ( obto\u017eni predlog , CPA , section CARDINAL ) submitted by the prosecutor . The bill of indictment has to include the name and surname of the defendant , with his personal data if known , and a description of the criminal offence ( CPA , section CARDINAL ) . Before lodging the bill of indictment , the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures ( CPA , section CARDINAL ) .","Article CARDINAL of LAW provides :","\u201c Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or body performing such function or activity under state authority , local community authority or as a bearer of public authority . Any person having sustained damage also has the right , in accordance with the law , to demand compensation directly from the person or body that has caused the damage . \u201d","The compensation claim may be pursued in civil litigation . In these proceedings , the courts are bound by the final criminal court \u2019s judgment of conviction but only in so far as the existence of the criminal offence and criminal liability are concerned ( section CARDINAL of LAW , Zakon o pravdnem postopku , ORG no . CARDINAL with amendments , valid until DATE ) . In addition , the aggrieved party may lodge his compensation claim within the on - going criminal proceedings against the perpetrator ( premo\u017eenjsko - pravni zahtevek , sections CARDINAL of the CPA ) .","The statistical overview provided by the Government in their observations of DATE shows that out of all registered civil claims submitted by aggrieved persons who had been injured during police procedures DATE , CARDINAL civil claims had been settled or withdrawn and CARDINAL civil claims were still pending . As to the first group of cases , the statistics are inconclusive ; CARDINAL cases were transferred to ORG ( dr\u017eavno pravobranilstvo ) and CARDINAL were settled during the preliminary proceedings . However , no information is provided as to their outcome . As to the remainder of the first group of cases , CARDINAL case was settled out of court , CARDINAL discontinued , CARDINAL cases were decided against the plaintiff and CARDINAL claims were wholly or partly upheld . In CARDINAL cases no information as to the stage of proceedings or their outcome has been provided .","On DATE ORG ( PERSON sodi\u0161\u010de ) delivered a decision in a case concerning a person who had died during a planned police operation and alleged interference with several constitutional rights of the deceased and his wife . ORG found a violation of the right to the effective protection of human rights , as provided by LAW , taken together with LAW , on account of a failure by the authorities to conduct an independent investigation into the incident . ORG established ( paragraph CARDINAL of the decision ) :","\u201c LAW paragraph CARDINAL of LAW should be interpreted so as to include also a right to independent investigation of the circumstances of an incident where a person was allegedly subject to torture or inhuman or degrading treatment by the police ( dr\u017eavni represivni organi ) or where he or she lost his or her life during a police operation . The aforementioned right includes also the effective access of aggrieved parties to such investigation . Despite the fact that LAW paragraph CARDINAL of the LAW secures the right to judicial protection of human rights , it suffices in the situations concerned , according to the ( aforementioned ) jurisprudence of ORG in respect of LAW , that the investigation is conducted outside of judicial proceedings under the condition that it is independent and provides for the effective access of aggrieved parties . \u201d"],"violated_articles":["3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["6"],"non_violated_paragraphs":["6-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-5336","languageisocode":"ENG","respondent":"NLD","branch":"ADMISSIBILITY","date":2000,"docname":"ZOON v. THE NETHERLANDS","importance":4,"conclusion":"Inadmissible","judges":"Gaukur J\u00f6rundsson;Luigi Ferrari Bravo","text":["The applicant is a NORP national , born in DATE , and living in LOC , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , the GPE .","A.","The facts of the case , as submitted by the parties , may be summarised as follows .","The applicant was working as a general practitioner in GPE , the GPE , when , on DATE , CARDINAL ORG ( ORG ) filed a complaint against him with ORG in First Instance of Cases concerning LAW ( College voor de beslissing in eerste aanleg in zaken van het PERSON hereinafter referred to as \u2018 Medical Disciplinary Board\u2019 ) . In the complaint it was alleged that the applicant had reserved for his own use opiates he had prescribed to patients , had administered medication for other than the usual purposes and had carried out surgical operations not customarily performed by general practitioners .","Following CARDINAL hearings ORG decided on DATE that the complaints brought by the ORG were well - founded . The applicant was disqualified from practising medicine .","The applicant filed an appeal with ORG ( ORG ) which was rejected on DATE after which the applicant lodged an appeal in cassation with ORG ( PERSON ) .","ORG examined the appeal on DATE . On DATE the Advocate General ( PERSON ) at ORG submitted his advisory opinion proposing that the appeal in cassation be rejected . This advisory opinion was sent to the applicant \u2019s representative DATE . Counsel for the applicant did not submit comments in reply to the opinion of ORG .","ORG rejected the appeal in cassation on DATE .","PERSON Relevant domestic law and practice","The duties and position of the Procurator General \u2019s department ( openbaar ministerie ) are defined in ORG ( Wet op de rechterlijke organisatie ) .","The Procurator General \u2019s department consists of the Procurator General and advocates general at ORG , the procurators general and advocates general at ORG and the public prosecutors at ORG ( LAW ) . The advocates general at ORG act as deputies of the Procurator General at that court and are subordinate to him ( Articles CARDINAL \u00a7 CARDINAL , CARDINAL and CARDINAL \u00a7 CARDINAL ) .","The Procurator General \u2019s department must be heard by the courts in so far as the law so prescribes ( DATE ) . In the instant case and at the relevant time , LAW And ORG ( Reglement medisch tuchtrecht en oplossing van geschillen ) provided for the hearing of the Procurator General . The advisory opinion of the Procurator General or an advocate general at ORG takes the form of a learned treatise containing references to relevant case - law and a recommendation , which is not binding on ORG , to uphold or reject points of appeal .","According to LAW ) neither the parties nor their representatives are allowed to address the court after the Procurator General \u2019s department has presented its opinion ( LAW in conjunction with LAW ) . However , pursuant to LAW simple notes ( eenvoudige aantekeningen ) contesting facts which they believe have been presented incorrectly by the Procurator General \u2019s department may be submitted to the President of the court by the parties or their representatives . In the case law of ORG such \u201c simple notes \u201d have been defined as notes limited to the pointing out of obvious errors which should in all reasonableness be considered beyond discussion ( see , for example , ORG decisions of DATE and CARDINAL DATE , in PERSON ( GPE ) DATE , no . CARDINAL , and DATE , no . CARDINAL respectively ) .","The ORG \u2019s judgment in the case of PERSON v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL-B ) , and in particular its consequences for national practice , received considerable attention in GPE legal literature . In an interview published in PERSON ( ORG ) of DATE ( no . CARDINAL , pp . DATE ) the then Procurator General at ORG , PERSON , stated that in his opinion the PERSON judgment , which concerned criminal proceedings , did not necessitate any changes to the practice of the civil division of ORG . In a reaction to this interview , ORG argued that the ORG \u2019s reasoning in the PERSON judgment should be equally valid in civil proceedings ( ORG DATE , no . CARDINAL , pp . CARDINAL - CARDINAL ) .","Shortly after the PERSON judgment it became customary , in criminal proceedings , to give the accused the opportunity to respond to the advisory opinion issued by the Procurator General or advocates general at ORG . Following an amendment to LAW ) , this practice is now set out in LAW . According to LAW , an appellant in cassation in criminal proceedings may submit written comments in reply within DATE after the transmission of the advisory opinion to him or her .","In respect of civil proceedings , ORG held in a judgment of DATE ( PERSON , no . CARDINAL and GPE DATE , no . CARDINAL ) that a second written reply to the Advocate General \u2019s advisory opinion had to be set aside as it was contrary to the principle of due process to react to such an opinion twice .","In a case leading to a judgment of DATE ORG considered that it was free to take cognisance of comments submitted in response to the opinion issued by the Procurator General \u2019s department by one of the parties unless this ran counter to the requirements of due process , seen also in light of the interests of the other party ( GPE DATE , no . CARDINAL ) .","A similar reasoning was adopted by ORG in a judgment of DATE ( GPE DATE , no . CARDINAL ) , in which ORG , referring to the ORG \u2019s judgment in the case of PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-I ) , held that :","< Translation >","\u201c \u2026 where LAW [ of LAW ] prevents parties from responding to the advisory opinion of the public prosecution department as they see fit , it should be deemed inapplicable as being incompatible with the provisions of LAW , as interpreted in the case - law of ORG ( cf . ORG , DATE , ORG , p. CARDINAL ff ) . No restrictions other than those arising from due process , for instance in connection with the interests of the other party , apply to this document [ i.e. the reply to the advisory opinion of the public prosecution department ] . \u201d","In order to observe the principle of due process , ORG allows a period of DATE for the response to the advisory opinion of the Procurator General \u2019s department ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-69505","languageisocode":"ENG","respondent":"POL","branch":"ADMISSIBILITY","date":2005,"docname":"KORAL v. POLAND","importance":4,"conclusion":"Inadmissible","judges":"Nicolas Bratza","text":["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 parties , may be summarised as follows .","On an unspecified date in DATE criminal proceedings were instituted against PERSON , the applicant 's neighbour who assaulted and seriously injured him .","The applicant joined the proceedings before ORG ( S\u0105d Rejonowy ) as a civil party and lodged a claim for compensation against the defendant ( pow\u00f3dztwo adhezyjne ) . He also participated in them as the so - called \u201c auxiliary prosecutor \u201d ( oskar\u017cyciel posi\u0142kowy ) .","The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG ( PERSON ) .","On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki ) ( \u201c the CARDINAL Act \u201d ) entered into force . It lays down various legal means designed to counteract and\/or redress the undue length of judicial proceedings .","Section CARDINAL of the CARDINAL Act reads , in so far as relevant :","Section CARDINAL reads , in so far as relevant :","\u201c CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... \u201d","Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :","\u201c CARDINAL . The court shall dismiss a complaint which is unjustified .","NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .","At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .","NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . \u201d","Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :","\u201c CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .","... \u201d","On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL\/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-61434","languageisocode":"ENG","respondent":"ITA","branch":"CHAMBER","date":2003,"docname":"CASE OF GAMBERINI MONGENET v. ITALY","importance":4,"conclusion":"Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings","judges":"Peer Lorenzen","text":["The applicants were respectively born in DATE , DATE and DATE and live in GPE .","The applicants ' father was the owner of a flat in GPE , which he had let to ORG","In a writ served on the tenant on DATE , the applicants ' father informed the tenant that he intended to terminate the lease on expiry of the term and summoned him to appear before the Rome Magistrate .","By a decision of CARDINAL DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .","On DATE , the applicants ' father served notice on the tenant requiring him to vacate the premises .","On DATE , the applicants ' father served notice on the tenant informing him that the order for possession would be enforced by a bailiff on CARDINAL DATE .","On DATE , the applicants ' father died and they inherited the flat . Subsequently they became parties to the eviction proceedings .","Between CARDINAL DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as neither the applicants ' father nor themselves were entitled to police assistance in enforcing the order for possession .","On an unspecified date in DATE , reaching an agreement with the tenant , the applicants recovered possession of the flat .","Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-V. Lastly , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .","As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .","The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for \u201c fair rents \u201d ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .","The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .","Lastly , Law no . CARDINAL of DATE reformed the tenancies and liberalised the rents .","The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :","\u201c The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . \u201d","NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .","In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .","The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-23101","languageisocode":"ENG","respondent":"HRV","branch":"ADMISSIBILITY","date":2003,"docname":"VORWALD v. CROATIA","importance":4,"conclusion":"Inadmissible","judges":"Christos Rozakis","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Bad PERSON , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .","The facts of the case , as submitted by the parties , may be summarised as follows .","During TIME CARDINAL to CARDINAL DATE a group of CARDINAL accomplices burglarised the applicant \u2019s houses in the NORP village in GPE .","On DATE the applicant filed a civil action against the perpetrators before ORG ( PERSON ) , seeking damages for his destroyed and stolen property .","Before the period to be examined by ORG i.e. before DATE when the ORG entered into force in respect of GPE ) the court of first instance held CARDINAL hearings .","The hearing scheduled for DATE was adjourned because the defendants did not appear . However , the court heard the applicant .","The hearing scheduled for CARDINAL DATE was adjourned because a witness did not appear .","At the hearing of DATE the court heard CARDINAL defendants .","The hearing scheduled for DATE was adjourned because CARDINAL defendants did not appear .","At the next hearing on DATE the court heard CARDINAL witness .","The case was then transferred to another judge .","On DATE the court invited the applicant to pay an advance for the costs of an expertise .","On DATE the applicant paid the advance .","On DATE the court carried out an on the spot investigation of the damages on the applicant \u2019s house together with an expert .","On DATE the appointed expert submitted his expertise to the court .","On DATE the court sent the expertise to the parties .","On DATE and DATE the applicant and the defendants , respectively , informed the court that they had no objections to the expertise submitted .","On DATE the court invited the applicant to adjust his claim with the results of the expertise .","The next hearing scheduled for DATE was adjourned because a witness did not appear .","At the next hearing on DATE the applicant specified his claim .","On DATE the court of first instance pronounced its judgment .","On DATE the applicant and CARDINAL defendants , respectively , appealed against the judgment .","It appears that the proceedings are presently pending before the appellate court .","The relevant parts of LAW of LAW on LAW ( entered into force on DATE , published in ORG no . CARDINAL of CARDINAL May CARDINAL - hereinafter \u201c LAW on the LAW \u201d - Ustavni zakon o Ustavnom sudu PERSON ) read as follows :","( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant \u2019s rights and obligations or a criminal charge against him ...","( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...","( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-102932","languageisocode":"ENG","respondent":"UKR","branch":"COMMITTEE","date":2011,"docname":"CASE OF ANDRENKO v. UKRAINE","importance":4,"conclusion":"Violation of Art. 6-1","judges":"Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","On DATE the applicant lodged a claim with ORG ( \u201c the Kominternivskyy Court \u201d ) against her brother . She sought the annulment of her father \u2019s will .","On DATE ORG left the claim without examination because the parties had failed to attend .","On DATE the applicant lodged the same claim with ORG . On DATE the court allowed the applicant \u2019s request for securing the claim and seized the respondent \u2019s property .","On DATE ORG rejected the applicant \u2019s claims as unsubstantiated .","On DATE the applicant appealed against the judgment . On DATE the ORG left the appeal without examination as lodged out of time .","On DATE ORG allowed the applicant \u2019s appeal in cassation , which she had to resubmit on CARDINAL occasion in order to comply with procedural requirements , quashed the decision of CARDINAL DATE and sent the case for examination to ORG .","On DATE the ORG of Appeal examined the applicant \u2019s appeal on the merits , after she had rectified certain shortcomings in her appeal . The court of appeal quashed the judgment of DATE , finding that the case had not been duly examined by the first - instance court and remitted the case for fresh examination .","NORP The case is currently pending before the first - instance court .","In the course of the proceedings before the first - instance court , on DATE and DATE the applicant supplemented her claims . There were CARDINAL expert examinations ordered on the applicant \u2019s request and the proceedings were accordingly suspended for a total period of DATE . The hearings were adjourned CARDINAL times because of the applicant \u2019s failure to appear or on her requests . On CARDINAL occasions the hearings were adjourned because of the other participants\u2019 failure to appear and of the judge \u2019s absence or for technical reasons ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-88554","languageisocode":"ENG","respondent":"SRB","branch":"CHAMBER","date":2008,"docname":"CASE OF VRENCEV v. SERBIA","importance":3,"conclusion":"Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Antonella Mularoni;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and lives in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE , the applicant was stopped and searched by a police officer at the main bus station in GPE and a packet containing QUANTITY of cannabis was found on his person .","He was then taken to a police station but was released after a short period of time . Whilst in custody , an on - duty police officer issued a receipt confirming seizure of the cannabis in question ( potvrda o privremeno oduzetim predmetima ) . This receipt was signed by the applicant and the officer and contained the applicant \u2019s registered home address \u2013 FAC no . CARDINAL , GPE .","In a subsequent incident report of DATE , however , the officer appears to have made a mistake by stating that the applicant \u2019s address was FAC no . CARDINAL rather than no . CARDINAL . This report was neither seen nor signed by the applicant .","Having found his number in a telephone directory , on DATE the police contacted the applicant \u2019s father by telephone . He in turn informed the applicant that the police were looking for him . The applicant subsequently called the police and was told that he needed to come to the station in order to pick up the court summons . Upon arrival at the station , he was arrested and placed in detention .","It subsequently became clear that a detention order had been issued by ORG ( Okru\u017eni sud ) in GPE on DATE , as part of the criminal proceedings brought against the applicant regarding the cannabis seizure of DATE . In its reasoning , the court first explained that the applicant had not appeared at the hearing scheduled for DATE and noted that the return receipt attached to its summons had stated that he \u201c was unknown at FAC no . CARDINAL \u201d . Secondly , the applicant had failed to appear at the following hearing scheduled for DATE and the police , who had been ordered to serve the summons , had reported on DATE that a neighbour had confirmed that the applicant had not been living at the address in question since DATE . Thirdly , on DATE the police had also run a search in their database and had made additional inquiries , confirming that , as of DATE , the applicant \u2019s registered residence was indeed FAC no . CARDINAL , but could not discover any information concerning his current whereabouts . Finally , the court concluded that there was a sufficient factual basis to indicate that the applicant was hiding and\/or in flight and had therefore ordered his detention . ( It must , however , be noted that the neighbour \u2019s statement and the original police report of DATE were cited erroneously by ORG and that in fact both had referred to FAC no . CARDINAL only , as the applicant \u2019s registered residence , there being no mention of FAC no . CARDINAL . )","On DATE ORG had also adopted a separate decision requesting the police to issue a wanted notice ( poternica ) and arrest the applicant . Therein the applicant \u2019s address had again been stated as FAC no . CARDINAL .","Various other documents successively referred to both addresses . Thus ORG letter sent to the police on DATE referred to FAC no . CARDINAL while all court summonses , the criminal complaint of DATE ( krivi\u010dna prijava ) and the indictment ( optu\u017eni predlog ) of DATE consistently stated the applicant \u2019s address as FAC no . CARDINAL .","NORP Throughout this time the applicant \u2019s identity card , issued by the police on DATE , and his residence registration remained unchanged , stating his address as FAC no . CARDINAL , GPE .","On DATE the applicant \u2019s lawyer filed an appeal by telegram against the ORG detention order of DATE . Therein he stated that the applicant had never lived at FAC no . CARDINAL and pointed out that his registered residence was in fact FAC no . CARDINAL . The applicant consequently had no knowledge of the criminal proceedings against him ; nor could he have deliberately avoided receiving the court summons .","On DATE the applicant \u2019s lawyer supplemented this appeal with additional written arguments requesting that the impugned detention order be revoked and his client released . In particular , he noted that the applicant had gone to the police station \u201c of his own free will \u201d as soon as he had found out that they were looking for him . Upon arrival at the police station , he had been arrested and it was then that he had first found out about the criminal charges against him .","On DATE ORG ( PERSON ) rejected the appeal . It did so without an oral hearing . In its ruling ORG affirmed the reasons for detention given by ORG and further held that there was no evidence in the case file that the applicant \u2019s correct address was indeed FAC no . CARDINAL . On the contrary , police reports suggested that \u201c the applicant \u2019s residence throughout the proceedings had remained unknown \u201d .","On DATE this decision was received by the applicant \u2019s lawyer .","On DATE he filed a motion with ORG , seeking the applicant \u2019s release on bail or , alternatively , that his detention be replaced with a prohibition on leaving his place of residence until the conclusion of the criminal proceedings . The lawyer further noted that the applicant \u2019s detention had been ordered due to the court \u2019s error in the establishment of his true home address and concluded by requesting that a hearing in the case be scheduled urgently .","ORG appears not to have considered this motion .","Following a hearing on DATE , ORG found the applicant guilty of illicit possession of narcotics and fined him in the amount of MONEY ( at the time MONEY ) .","In a separate decision of the same date the ORG released the applicant from detention . It held , inter alia , that \u201c the current phase of the criminal proceedings had been completed \u201d and that \u201c the defendant had provided correct information about his present address \u201d .","On DATE the applicant filed a complaint with ORG and GPE ( Sud Srbije i PERSON ) .","Following the communication of the present application to the respondent ORG , the Government produced CARDINAL signed witness statements , taken by the police on DATE , wherein the applicant \u2019s neighbours , both residing at FAC no . CARDINAL , confirmed that the applicant had indeed not been living there for DATE . CARDINAL of them further specified that he had already told the police as much in DATE , while the other recalled that the applicant had not been living at the address in question since DATE .","Articles DATE and CARDINAL , taken together , stated that the \u201c provisions of international treaties on human and minority rights applicable in ... [ GPE of ] ... GPE and GPE shall be directly enforceable \u201d and , further , that \u201c the ratified international treaties \u201d shall \u201c have precedence \u201d over domestic legislation .","Article CARDINAL provided that \u201c international treaties in force in ORG [ of GPE and GPE ] shall be guaranteed by this LAW and be directly applicable \u201d .","Article CARDINAL \u00a7 CARDINAL provided that a person \u201c who has been deprived of his liberty unlawfully [ nezakonito li\u0161en slobode ] shall have the right to compensation \u201d .","Article CARDINAL \u00a7 CARDINAL provided , inter alia , that a person who has been deprived of his liberty , \u201c without any basis [ bez osnova ] ... shall have the right to ... compensation ... \u201d .","The relevant provisions of this Code provide as follows :","\u201c The courts , as well as ORG bodies taking part in the criminal proceedings , shall establish truthfully and comprehensively all facts which are of importance for the adoption of a lawful decision .","The courts and ORG bodies shall examine and establish with equal care facts which incriminate the defendant , as well as those in his favour . \u201d","\u201c First instance courts sit in a panel of CARDINAL judges [ \u201c ORG \u201d ] when deciding on appeals against rulings of the investigating judge and other rulings when it is so prescribed by this LAW ... \u201d","\u201c The ... [ defendant \u2019s participation in the criminal proceedings may be secured by means of sending ] ... summonses , his forcible production in court , the issuance of a prohibition of his leaving his place of residence , [ as well as ] through the imposition of bail or detention .","The competent court shall ... [ attempt not to apply ] ... a more severe measure ... [ in order to secure the defendant presence ] ... if a less severe measure may achieve the same purpose .","These measures shall be vacated ex officio when the reasons for their application have ceased to exist , or shall be replaced with other less severe measures once the conditions are met . \u201d","\u201c The defendant is obliged to immediately inform the court of any change of address , as well as of his intent to change his abode . The defendant shall be informed of this obligation at his first hearing ... [ or ] ... upon receipt of the indictment ... and warned about the consequences ... [ of any non - compliance ] ... provided for under the LAW . \u201d","\u201c ... [ The court shall order the forcible production of the defendant before it if the defendant ] ... could not be properly summoned and it is obvious from the facts that he has been avoiding receipt [ of court summonses ] . \u201d","\u201c If there are circumstances indicating that the defendant might abscond , hide , go to an unknown place or abroad , the court may , by a reasoned decision , prohibit him from leaving his place of residence .","...","In the course of the [ judicial ] investigation the [ measure ] referred to in [ paragraph CARDINAL ] ... of this Article shall be ordered and vacated by the investigating judge , and when the indictment is preferred by the President of the ORG .","...","Parties may appeal the ruling ordering , extending or vacating ... [ the said measure ] ... and ORG may also appeal the ruling rejecting his motion for [ its ] application . ORG ... shall decide on the appeal ... [ within DATE ] ... The appeal does not stay the execution of the ruling .","... \u201d","\u201c The defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... may remain at large or may be released providing that he personally , or another person on his behalf , gives bail guaranteeing that he shall not abscond until the conclusion of the criminal proceedings and the defendant himself promises that he shall not hide or change his place of residence without permission . \u201d","\u201c The decision on bail before and in the course of a [ judicial ] investigation shall be rendered by the investigating judge . After the indictment is preferred the decision on bail shall be rendered by the President of the ORG and [ subsequently ] at the main hearing by the ORG itself . \u201d","\u201c Detention may be ordered only in accordance with the conditions provided by this LAW and only if the same purpose can not be achieved by another measure .","The authorities taking part in the criminal proceedings ... are bound to proceed with particular urgency if the defendant is in detention .","In the course of the ... proceedings , detention shall be vacated as soon as the grounds therefor have ceased to exist . \u201d","\u201c Detention shall be ordered by a decision of the competent court .","...","A decision on detention shall be served on the person to whom it relates at the moment of his deprivation of liberty , but no later than within TIME ... [ as of this moment ] ...","A detained person may file an appeal against the decision on detention with the ORG within TIME as of the moment of its receipt . The appeal , the decision on detention and other files shall immediately be forwarded to ORG . The appeal shall not stay the execution of the [ impugned ] decision .","...","In the situation referred to ... [ above , ] ... the Judicial Panel shall rule on the appeal within TIME . \u201d","\u201c Against decisions [ re\u0161enja ] ... adopted by courts acting at first instance , the parties and persons whose rights have been breached may file an appeal , unless this Code expressly provides that an appeal shall not be permitted .","...","There shall be no appeal against a decision [ re\u0161enje ] of ORG , unless provided otherwise by this LAW . \u201d","\u201c An appeal against a decision [ re\u0161enje ] adopted by a court at first instance shall be decided at a session held before the court of second instance , unless provided otherwise by this Code . \u201d","\u201c For the purposes of unhindered conduct of the criminal proceedings [ in respect of crimes punishable by a fine or imprisonment of DATE , ] detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if :","( CARDINAL ) he is in hiding or his identity can not be established or if there are other circumstances clearly indicating a danger of flight ... \u201d","\u201c [ The following persons shall be ] ... entitled to recover ... [ any ] ... damages ... [ suffered ] ...","( CARDINAL ) [ a person ] who was detained but against whom no criminal proceedings were instituted , where these proceedings were discontinued by a final ruling , where ... [ the person in question ] ... was [ ultimately ] acquitted by a final judgment or where the charge against him was rejected ;","...","( CARDINAL ) [ a person ] who due to an error committed or an unlawful action undertaken by a [ State ] body has been deprived of his liberty in the absence of any legal basis [ neosnovano li\u0161eno slobode ] ... \u201d","NORP The person requesting bail , under LAW , \u201c does not have to ... specify the amount of bail \u201d to be posted ( see PERSON o krivi\u010dnom postupku , Prof . PERSON and Prof . dr PERSON , ORG , GPE , DATE , p. CARDINAL ) .","Parties to the proceedings \u201c shall not be informed about ... [ the session referred to in LAW ] .. , including ORG ... [ who shall ] .. , prior to the session , be provided with the case file and shall submit his proposal ... [ to the court ] ... in writing \u201d ( see PERSON o krivi\u010dnom postupku , cited above , pp . CARDINAL - CARDINAL ) .","Articles CARDINAL \u00a7 CARDINAL , CARDINAL \u00a7 CARDINAL , DATE and CARDINAL provide , inter alia , that citizens must inform the police about any change in their address , within DATE as of their moving , which information shall then be entered into an official register .","Articles CARDINAL and CARDINAL of LAW provide , inter alia , that anyone who has suffered fear , physical pain or , indeed , mental anguish as a consequence of a breach of his \u201c personal rights \u201d ( prava li\u010dnosti ) is entitled , depending on their duration and intensity , to sue for financial compensation in the civil courts , as well as to request other forms of redress \u201c which might be capable \u201d of affording adequate non - pecuniary satisfaction .","The relevant provisions concerning ORG and GPE are set out in GPE judgment ( no . CARDINAL , \u00a7 \u00a7 CARDINAL , CARDINAL and DATE , ECHR DATE ... ) ."],"violated_articles":["5"],"violated_paragraphs":["5-3","5-4","5-5"],"violated_bulletpoints":[],"non_violated_articles":["5"],"non_violated_paragraphs":["5-1"],"non_violated_bulletpoints":["5-1-c"],"violated":true}
{"itemid":"001-61923","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2004,"docname":"CASE OF MEHMET EM\u0130N Y\u00dcKSEL v. TURKEY","importance":3,"conclusion":"Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award","judges":"","text":["The applicant was born in DATE and lives in GPE . He was a student at ORG at the time of the events described below .","On DATE the applicant was arrested and placed in custody by police officers from ORG . He was accused of membership of an illegal organisation , the PERSON ( ORG ) .","The police officers interrogated the applicant in relation to his alleged involvement in the PERSON . The applicant alleged that he had been subjected to ill - treatment by the officers during the interrogation which caused an oedema , a bruised nose and a broken tooth . According to the Government , the applicant \u2019s injuries occurred when , due to lack of sleep , he inadvertently fell and hit his nose on a sink .","On DATE the applicant signed a statement according to which he hit his nose on a sink while washing his face . The applicant claims that he was forced to sign the statement . He was then taken to ORG and examined by Dr. PERSON who noted the following :","\u201c An oedema and an ecchymosed lesion as a result of trauma have been identified on the nose .","... \u201d","On DATE , the applicant was brought before ORG . Before the court , he denied being a member of an illegal organisation . He stated that he had been subjected to various forms of illtreatment during his detention in police custody and that the statement which he had signed did not reflect the truth of what had happened to him . The court ordered his release pending trial .","On DATE the applicant filed a criminal complaint with the chief public prosecutor \u2019s office in ORG against the police officers who had allegedly ill - treated him . The chief public prosecutor ordered that the applicant be examined by a medical expert from ORG . On DATE , he was examined by a forensic medical expert . The expert \u2019s report stated the following :","\u201c ...","There is an abrasion of CARDINAL x QUANTITY on the left side of the tip of the nose . Furthermore , there is a minimal fracture on the front of the CARDINALth of the lower teeth .","There is no danger to the individual \u2019s life . However , the injuries render him unfit for work for DATE . \u201d","On DATE the ORG public prosecutor issued a decision of non - jurisdiction in respect of the applicant \u2019s allegations of ill - treatment and referred the investigation file to ORG in accordance with the PERSON on the Prosecution of Civil Servants ( Memurin Muhakemat\u0131 GPE ) .","On DATE ORG acquitted the applicant of the charges against him . The court took note in its judgment of the applicant \u2019s statement that he had been interrogated by police officers under duress .","On DATE ORG decided that , due to lack of evidence , the police officers who had allegedly illtreated the applicant should not be prosecuted .","On DATE the applicant filed an objection with ORG against the decision of ORG . He also lodged a petition with ORG and requested a copy of the investigation file . He received no response to his petition .","On DATE ORG confirmed ORG decision of non - prosecution .","On DATE ORG decision was served on the applicant .","A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE , nos . CARDINAL and FAC , \u00a7 CARDINAL , DATE , and GPE v. GPE [ ORG ] , no . CARDINAL , \u00a7 CARDINAL - CARDINAL , DATE ) ."],"violated_articles":["13","3"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-111938","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2012,"docname":"CASE OF X v. FINLAND","importance":1,"conclusion":"Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Matti Mikkola;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;Zdravka Kalaydjieva","text":["The applicant is a paediatrician , born in DATE , who continued in private practice after her retirement .","On DATE a mother brought her daughter , PERSON , born in DATE , to the applicant \u2019s practice to be examined , suspecting that the girl had been sexually abused by her father . The applicant examined her and took photographs .","On DATE the girl was taken into public care because of her mother \u2019s mental health problems and was placed in a family support centre .","The events now in issue began on DATE , when the mother failed to return PERSON to the family support centre after spending time with her . It appears that the centre was going to close during DATE and it was alleged during the domestic proceedings that the girl had indicated to her mother that she was unwilling to go to her father \u2019s home for DATE .","V. fell ill and was taken to the applicant \u2019s practice by her mother on DATE . When she left the practice ORG remained with her mother until she was found by the authorities on DATE .","On DATE the applicant was arrested as a suspect in the deprivation of ORG \u2019s liberty , which had allegedly begun on DATE in [ town A ] . The applicant \u2019s home and practice were searched DATE . On DATE ORG ( k\u00e4r\u00e4j\u00e4oikeus , tingsr\u00e4tten ) , having heard the applicant in person , remanded her in custody , considering it likely that she would otherwise complicate the resolution of the case and continue to engage in criminal activity .","By CARDINAL separate decisions DATE , given at the request of the police , ORG granted permission to obtain information about calls to and from telephones used by ORG mother and a third suspect during different periods DATE and DATE . The information gathered showed that calls had also been made from and to a telephone in the applicant \u2019s possession .","V. was found on DATE . On DATE the applicant was released . Following her release , the applicant complained on several occasions , inter alia , about the ORG decision of DATE remanding her in custody , and requested an investigation of , inter alia , the actions of a number of police officers during her arrest and related events .","On DATE the police issued an interim restraining order in respect of the applicant , the terms of which were that she was not allowed to visit certain places frequented by ORG Those places were specified in the decision .","On DATE ORG found that it was unlikely that the applicant would or could continue to harass the girl or commit an offence against her . It therefore quashed the restraining order .","On DATE the public prosecutor preferred charges against ORG \u2019s mother , the applicant and a third person . The applicant was charged with seriously depriving ORG of her liberty during the period from DATE to DATE or , in the alternative , aiding and abetting the commission of that offence . The applicant had allegedly , through her opinions , advice and actions , contributed to the mother \u2019s decision to abduct her child on DATE in [ town A ] and , after the mother had abducted her child and taken her at DATE at the latest to [ town B ] , the applicant had , with the mother \u2019s consent , unlawfully isolated GPE As the deprivation of liberty had lasted a long time , had been planned and premeditated and had endangered the girl \u2019s emotional development , the offence was considered aggravated .","In her written reply to the charge the applicant denied that she had in any way had an impact on the mother \u2019s actions . She had only provided medical treatment for ORG It had not been shown that the suspicions of sexual abuse were unfounded .","On DATE and CARDINAL DATE the applicant unsuccessfully made an application to ORG ( valtakunnansyytt\u00e4j\u00e4 , h\u00f6gsta \u00e5klagaren ) , requesting that the public prosecutor be replaced by an impartial one and alleging a number of irregularities in the performance of his duties .","On DATE ORG appointed a public defender to represent the applicant PERSON , a member of ORG as the representative chosen by the applicant \u2013 PERSON , a civil engineer DATE was not considered capable of representing her , given the gravity of the alleged offence . The applicant contested the appointment of PERSON in a written representation , without however naming a lawyer of her choosing , although invited to do so . On DATE ORG ( hovioikeus , hovr\u00e4tten ) rejected the applicant \u2019s representation .","At a preliminary hearing on DATE ORG ordered , against the applicant \u2019s wishes , that the case be examined in camera as it concerned sensitive issues relating to a child \u2019s life . It also held that the applicant was unable to defend herself , given the nature of the case . The applicant unsuccessfully complained to the higher courts about this decision .","The case was heard over DATE , beginning on DATE . The applicant informed the court that she considered that her public defender , PERSON , who was present at the hearing , was not entitled to plead on her behalf . The applicant declared that she would defend herself .","The District Court heard statements from the applicant and the CARDINAL other defendants . It also heard ORG \u2019s father , representing PERSON , and CARDINAL witnesses . On DATE the court rejected as irrelevant a request by the applicant that PERSON , PERSON , a police inspector and CARDINAL lawyers be heard as witnesses regarding the applicant \u2019s deprivation of liberty and the alleged misinterpretation of the facts by the public prosecutor , which the applicant described as criminal . The applicant then reiterated her request , stating that the witnesses should testify about the background to the offence with which she was charged . ORG also rejected that request , noting that she had not given any reasons which would have justified hearing the witnesses she proposed .","On DATE ORG ordered the applicant and PERSON \u2019s mother to undergo a psychiatric assessment under LAW , Article DATE , of the Code of Judicial Procedure ( oikeudenk\u00e4ymiskaari , R\u00e4tteg\u00e5ngs Balk ) and section CARDINAL(CARDINAL ) of LAW ( mielenterveyslaki , mentalv\u00e5rdslagen ) , and adjourned the proceedings for the assessment to take place . The applicant then went into hiding .","Dr K.A. , a psychiatrist , noted in a written medical opinion of DATE that he had met the applicant twice , on CARDINAL November and DATE , and that in the CARDINAL conversations he had had with her he had not observed any signs of mental disorder and that , in his opinion , she was not in need of involuntary care . He emphasised , however , that he had not carried out a psychiatric assessment , as such an assessment could only take place in a hospital and not in a private consulting room .","Niuvanniemi Hospital , CARDINAL of the CARDINAL State mental hospitals , informed the applicant that it was ready to receive her from DATE . At the applicant \u2019s request , the assessment was postponed first to DATE and then to CARDINAL DATE . The applicant failed , however , to appear at the hospital .","By a letter dated DATE the applicant proposed Mr GPE as her new representative . On DATE the ORG appointed Mr P.S. , a member of the Bar , as the applicant \u2019s new public defender .","On DATE ORG ordered the applicant \u2019s arrest and detention in absentia on the ground that she was seeking to evade trial , as she had not appeared at ORG . The applicant was represented at the hearing by Mr DATE The applicant lodged a complaint , alleging insufficient grounds for detention and procedural errors . On DATE ORG dismissed the complaint as unfounded . On DATE ORG dismissed a further complaint by the applicant without considering its merits . The applicant later lodged a third complaint , which was dismissed as unfounded by ORG on DATE . ORG refused requests by the applicant for leave to appeal .","On DATE ORG rejected a complaint by the applicant in connection with the order that she undergo a psychiatric assessment , finding the applicant \u2019s allegations of procedural errors in the ORG proceedings unsubstantiated . On DATE ORG refused leave to appeal .","After receiving a request from Mr DATE to withdraw , on DATE ORG , having given the applicant an opportunity to be heard in writing , appointed Mr PERSON , a member of the Bar , as her new public defender . On DATE ORG rejected a complaint by the applicant against this decision , finding that she was unable to defend herself and that Mr PERSON was not biased as she had alleged . It also rejected a request by the applicant for an oral hearing as manifestly unnecessary . On DATE ORG refused leave to appeal .","On DATE ORG rejected a complaint by the applicant that , inter alia , the ORG Judge who had ordered her psychiatric assessment was biased . A request by the applicant that its decision be supplemented was rejected by ORG on DATE . On DATE ORG refused leave to appeal .","By a letter dated DATE ORG informed the applicant that it would hold an oral hearing on DATE concerning her detention . The applicant was informed that other aspects of the criminal charges against her would not be dealt with at that hearing and no evidence would be taken other than on her detention .","On DATE ORG issued a further order for the applicant \u2019s arrest and detention , finding that she was still seeking to evade trial . She was represented at the hearing by her public defender Mr PERSON On DATE ORG dismissed a complaint by the applicant concerning the decision of DATE without considering its merits , as it had been drawn up by PERSON , who did not fulfil the requirements set out in LAW , LAW , of LAW . It was noted that a public defender had been appointed to represent the applicant . A further complaint by the applicant was dismissed by ORG on DATE without consideration on the merits .","On DATE the applicant was arrested .","On DATE , having heard the applicant in person , ORG remanded her in custody , finding that she was aware of the psychiatric assessment to be conducted and the subsequent arrest warrants . The court stated that the applicant had been evading trial , of which the assessment formed a part . The applicant was ordered into police custody and from there to a mental institution to be designated by ORG ( terveydenhuollon oikeusturvakeskus , r\u00e4ttsskyddscentralen f\u00f6r h\u00e4lsov\u00e5rden ) .","On DATE the applicant was taken to ORG , the other ORG mental hospital , for a psychiatric assessment , the duration of which was initially to be DATE . The assessment was carried out by PERSON a specialist in psychiatry , adolescent psychiatry and forensic psychiatry . During the assessment the applicant was interviewed by PERSON PERSON on ten occasions . She also saw CARDINAL psychologists , ORG and ORG - V. She refused to undergo somatic and neurological examinations and special examinations , such as magnetic resonance imaging of the brain . She also refused laboratory tests and psychological tests .","On DATE Dr PERSON gave his written opinion to ORG on the basis of the assessment conducted DATE and DATE . His conclusions were that the applicant was suffering from a delusional disorder and had not been criminally responsible at the time of the alleged offence . PERSON also found that the criteria for involuntary confinement , set out in section CARDINAL of ORG , were met and that the applicant could not be heard at the trial . Her capacity to look after her own interests was diminished by her mental illness , and she was thus in need of a guardian for the criminal proceedings .","On DATE the applicant asked ORG for a second opinion . On DATE that authority informed the applicant that ordering a psychiatric assessment of a defendant in a criminal case was outside its authority , and she should therefore direct her request to the court .","By an interlocutory decision of DATE ORG of ORG ( terveydenhuollon oikeusturvakeskuksen oikeuspsykiatristen asioiden lautakunta , n\u00e4mnden f\u00f6r r\u00e4ttspsykiatriska \u00e4renden vid r\u00e4ttsskyddscentralen f\u00f6r h\u00e4lsov\u00e5rden \u2013 hereafter \u201c the ORG \u201d ) requested PERSON to supplement his opinion , as far as possible , by giving the applicant psychological tests and by submitting such background information as would enable a comparison to be made between the applicant \u2019s ability to manage in her earlier life and her ability to manage at the time of the alleged criminal events . PERSON was also invited to provide detailed reasons why he considered that the criteria for involuntary care were met and why outpatient treatment was not considered sufficient . The results of the supplementary examination were to be submitted to ORG as soon as possible .","The supplementary examination was completed on DATE . The applicant again refused psychological tests by the hospital staff , doubting their impartiality . In his report , dated DATE , Dr PERSON found that the applicant was suffering from a psychotic delusional disorder and that her condition had already been present prior to the events leading to the criminal charges . The applicant had observed indications of sexual abuse which other experts had not been able to detect . In Dr PERSON \u2019s opinion , the applicant was in need of involuntary psychiatric treatment in order to recover from her disorder , which mainly related to judicial matters , but also to a delusion of grandeur as to the correctness of her own actions . Further , as a doctor she was endangering other people \u2019s well - being by prescribing them treatment which put their health at risk . Because the applicant had for a long time evaded psychiatric assessment , and as she opposed treatment , outpatient treatment would not be sufficient . In conclusion , PERSON considered that the applicant was paranoid and that she had made accusations against various authorities about continued abuse of office . She had become entangled in the tiny details of her own case without being able to perceive the wider picture . He considered that her delusional disorder had reached the level of psychosis , which distorted her conception of reality . Owing to her illness , she did not understand the unlawfulness and repercussions of her actions and she had been psychotically deluded when she had taken part in the deprivation of a child \u2019s liberty . Moreover , she was in denial of her illness .","NORP The applicant sent a number of letters to ORG , in which she criticised the psychiatric assessment conducted by Dr PERSON , among other things . She also submitted to ORG divergent medical opinion of DATE ( see paragraph CARDINAL above ) .","On DATE ORG submitted its opinion on the psychiatric assessment to ORG under section CARDINAL(CARDINAL ) of LAW , finding that the applicant had not been responsible for her actions at the time of the offence .","On DATE , the psychiatric assessment being complete , ORG ordered the applicant \u2019s release from detention . She was , however , to remain in hospital for treatment , as ordered on DATE by ORG .","On DATE ORG ordered , on the basis of Dr PERSON \u2019s proposal , that the applicant receive involuntary treatment in ORG . It considered that she was suffering from a delusional disorder , which had affected DATE and which made her incapable either of seeing a matter from a viewpoint other than her own or of questioning the correctness of her own conclusions . She suspected that the authorities had \u201c ganged up \u201d on her . During the psychiatric assessment she had tried , as a medical doctor , to take a stand regarding the treatment of other patients on the ward . The delusional disorder , if not treated , would considerably worsen her mental illness or seriously endanger her health and the health of others . No other mental health services were considered adequate , having regard to the fact that the applicant did not consider herself to be mentally ill . The decision referred to sections CARDINAL , ORG ) and CARDINAL of LAW .","The applicant considered that she was not in need of mental health treatment , and wished to obtain a second opinion on her need for treatment . However , at DATE the hospital refused to allow a Dr M - P.H. to visit her during the ongoing psychiatric assessment .","The initiation of medication was discussed with the applicant on DATE . She was given the opportunity to take medication orally , but she repeatedly refused to do so . Owing to the applicant \u2019s resistance , the administering of medication began with involuntary injections of GPE . As the applicant had made it clear that she would not cooperate , it was decided to continue her medication by giving long - acting injections of ORG every DATE , starting on DATE . The basis of the decision was explained to the applicant and she was also given information about the drug . The issue of medication was discussed with the applicant on several occasions after that . She was encouraged to take it orally , but she persistently refused .","As the applicant \u2019s core symptoms persisted after DATE of medication , it was decided on DATE to increase the dosage of PERSON from QUANTITY to QUANTITY . It was reduced to QUANTITY again from DATE .","The applicant alleged that when she had questioned the forcible administering of medication , she was informed that it was intended to cure her telephone surveillance delusion . The applicant argued that the surveillance had taken place and that there had been no delusion on her part .","On DATE the applicant claimed to have been assaulted in connection with the forcible administering of medication . She had resisted , as she considered the medication unnecessary , whereupon she had been dragged by her arms and legs to her room . When she was put on the bed her thigh had hit the edge of the bed . She had reported the incident to the police , who had asked a medical doctor , PERSON , to examine her , which he did on DATE . In his medical opinion of CARDINAL DATE he noted that the applicant had a QUANTITY bruise on her thigh , which could have been caused in the manner described by the applicant .","DATE . On DATE the head physician of the hospital decided to continue the applicant \u2019s involuntary treatment .","In a written statement of CARDINAL DATE to ORG the head physician of ORG , GPE , noted that the applicant was still in denial of her illness and very strongly opposed medical treatment . She was literally fighting back , and this had resulted in several difficult situations when attempts were being made to proceed with the administering of medication in a manner which would be safe for both the applicant and the hospital staff .","It appears that in DATE enquiries were made about a possible transfer of the applicant to a different hospital in her home town . However , that hospital did not consider itself able at that point to accept responsibility for the applicant \u2019s care .","The applicant alleged that she was still suffering side effects from the medication . The applicant \u2019s patient records indicate that the alleged side effects could not be objectively verified . The applicant refused to undergo further medical examinations whereby any side effects could be detected .","On DATE the applicant was visited by PERSON , a general practitioner at an occupational health care centre . In his opinion of CARDINAL DATE PERSON emphasised that he did not specialise in psychiatry and he could not therefore take a stand as to the diagnosed delusion on the basis of CARDINAL visit . He noted , however , that the applicant had been lucid and well - orientated . During their conversation he had not observed any signs of psychosis or delusion . In his capacity as a general practitioner , he considered that the conditions for involuntary treatment were not met .","On DATE the applicant was visited by a psychiatrist , Dr M - P.H. , who in a written medical opinion of DATE considered , as an outsider , that the choice of medication for the applicant ( QUANTITY of PERSON injected into the muscle DATE ) seemed excessive , given the patient \u2019s age and state of health . Furthermore , he considered that the involuntary and forced medication fulfilled the constitutive elements of assault . In conclusion , he considered that open - care measures were possible and that the danger posed by the applicant to herself and others had been considerably exaggerated , and accordingly that the criteria for involuntary care were not met .","It appears from the applicant \u2019s patient records that from DATE at the latest she was no longer physically resisting the injections , although she was still verbally opposing her medication .","On DATE the hospital decided to move the applicant from the closed ward to an open one .","On DATE the applicant agreed to blood tests .","On DATE the applicant again saw PERSON , who in a written medical opinion of DATE considered that the conditions for involuntary care were not met .","The applicant spent DATE at home . She had with her a dose of PERSON , which she injected during her holiday with the assistance of a nurse .","On DATE it was decided , by mutual agreement with the applicant , that the medication should be terminated , as she was not at all motivated to take it .","On DATE the head physician of the hospital took a further decision to continue the applicant \u2019s involuntary care .","On DATE the applicant was discharged from hospital .","On CARDINAL DATE Dr PERSON considered that the grounds for continuing the involuntary care under section CARDINAL of LAW no longer existed , whereupon the treatment was officially terminated by a decision of ORG of DATE .","On DATE the applicant appealed to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltnings - domstolen ) against the decision of CARDINAL DATE by ORG , arguing that there was no legal basis for the involuntary care . She alleged that Dr PERSON had erred in his assessment . She relied , inter alia , on the above - mentioned medical opinion of PERSON , who had seen her twice , in DATE , and who had not found any signs of mental illness on the basis of those meetings . She alleged that there was no other reason for the forced medication than the hospital LOC attempt to conceal their incorrect diagnosis .","On DATE ORG found no reason to stay execution pending its proceedings .","On DATE ORG prohibited Mr PERSON from acting as the applicant \u2019s representative . Under LAW , LAW ) , of LAW the applicant was invited to inform the court of her choice of counsel . Subsequently , the applicant was represented by PERSON , counsel chosen by her . She was granted legal aid .","On DATE ORG decided to hold an oral hearing in the case .","DATE . On DATE and DATE the applicant requested the court to postpone the oral hearing until she had obtained an impartial medical opinion and until she had recovered from the side effects of her medication . On DATE she informed the court that she had fallen ill and again requested that the hearing be postponed .","On DATE ORG held an oral hearing and received the testimony of , inter alia , the applicant and CARDINAL witnesses proposed by her . The applicant was represented by PERSON","The court refused the applicant \u2019s request for a stay of the proceedings pending the submission of fresh medical opinions . The court considered this unnecessary given the fact that the issue to be decided was whether the applicant had been in need of involuntary care at DATE . The validity of the impugned decision had already expired , DATE had elapsed since it had been given . It was difficult to see how a fresh examination could affect the court \u2019s assessment .","On DATE the applicant submitted to the court a medical opinion by PERSON dated DATE .","On DATE ORG dismissed the applicant \u2019s appeal . Having first noted that the impugned decision met the formal requirements and that the applicant \u2019s complaint of partiality on the part of Dr PERSON and the members of ORG could not be upheld , it went on to note that the question to be decided was whether the criteria for involuntary care under section CARDINAL of ORG had been met on DATE , when the ORG had given its decision . The question of whether a person was mentally ill was a factual question to be decided on the basis of medical evidence , having due regard to the correctness of the decision - making procedure applied .","The court considered that Dr PERSON , a specialist in psychiatry since DATE , was an experienced psychiatrist . His opinion and the opinion of ORG were based on a professionally qualified and reliable medical assessment .","As to the subject matter the court reasoned , inter alia :","\u201c ... PERSON interviewed the applicant on QUANTITY occasions and was then able to make observations on her . PERSON and ORG explained at the oral hearing that the diagnosis of delusion was affected by the absoluteness of the applicant \u2019s views on incest . They stressed that incest diagnoses required examinations by doctors specialising in gynaecology and also child psychiatry examinations . The applicant is a specialist in paediatrics . In particular , PERSON gave evidence that in his discussions with the applicant she had refused to take into account the possibility that there had been no incest , although she admitted in general that doctors could also be mistaken . The fact that witnesses PERSON and PERSON gave evidence that the applicant had explained her situation in a pertinent manner did not undermine the view of PERSON and ORG The doctors gave concordant evidence that the discussions with the applicant were pertinent as long as her view on the alleged incest was not contradicted . At the oral hearing it became evident that witnesses LAW had not disputed the applicant \u2019s views , but had mostly listened to what she had to say . S. indeed gave evidence that she had checked the information provided by the applicant against other sources , but as she had concluded that the views of the applicant were tenable , she had naturally not come into conflict with her . Witness P. had not taken a stand as to whether or not the applicant had a delusional disorder . He had only judged whether or not open - care measures were possible .","According to PERSON , the diagnosis of delusion had also been affected by the applicant \u2019s continuing suspicion of authority and of medical and psychological examinations . PERSON also gave evidence about the numerous appeals made by the applicant and how her world centred on them . The applicant had refused a somatic and neurological examination , magnetic imaging and psychological tests because she believed that the tests would be carried out by biased and prejudiced persons .","The applicant has the right to refuse to be examined in respect of her mental health . On the other hand , it is justifiable to question the basis for the absolute refusal to undergo the examinations offered and whether the refusal may be based precisely on thinking typical of a delusional disorder . Having regard to these considerations , it can not be said that the diagnosis of delusional disorder was based on improper or arbitrary grounds , although the applicant has explained her refusal of examinations by stating that she had the right to do so , and her writing of legal submissions by stating that it was necessary to do so . At the oral hearing the applicant admitted that a deluded person would probably not be aware of her own illness .","At the oral hearing the applicant \u2019s son , PERSON , a doctor in general practice , gave evidence stating that he understood , given his mother \u2019s absolute and rigid behaviour , that she had been diagnosed as delusional . He could not , however , be certain of the correctness of the diagnosis , since he had seen his mother only a few times in DATE .","On the basis of the documents in the file and the information received at the oral hearing , and on the above grounds , ORG finds that reliable evidence has been provided for the diagnosis of delusional disorder in the decision of ORG .","A diagnosis of delusional disorder as such does not , however , suffice to warrant involuntary treatment . In addition , its effects on the person concerned and on others must be assessed .","The decision of ORG was that the applicant was in need of involuntary treatment and that , if not treated , her mental illness would considerably worsen and seriously endanger her health and the health of others .","According to information received , when the decision on treatment was taken regard was had to the repercussions for the applicant \u2019s life if her conflicts with the authorities and raising of associated issues were to continue . At the time it was considered that the applicant was not able to think matters through and that ordering treatment could help her to continue life in a calmer way .","These considerations must be held to be pertinent to an assessment of the need for the involuntary treatment for the sake of the applicant \u2019s own health . The fact that after DATE of treatment and medication the head physician , Dr ORG , in his explanation of CARDINAL DATE , and the witnesses put forward by the applicant , in their statements , expressed divergent conclusions does not justify calling into question the assessment of ORG regarding the need for treatment on DATE for the sake of the applicant \u2019s health .","ORG did not consider that , if not treated , the applicant would seriously endanger the safety of others . However , it held that the health of others could be seriously endangered . It should be taken into account that the applicant could have an influence on other people , owing to the authority which she enjoys by reason of her status as a paediatrician . She may engender in other people suspicions which lack real foundation , causing them to act hastily , inappropriately or even criminally . The possibility of this kind of influence is not lessened by the fact that the applicant is retired . Nor would the possibility of influence be prevented by the mere withdrawal of the applicant \u2019s licence to practise medicine , because the influencing is exerted on a psychological level and also in contexts other than that of a doctor \u2019s consulting room .","The nurse assigned to the applicant , P. , gave evidence to the effect that the applicant was not dangerous to other people . Although in his witness statement he also raised the issue of whether the applicant had given other patients dangerous advice , P. \u2019s testimony can be regarded as a common judgment of a person \u2019s dangerousness , such as violent behaviour or similar . This is not the case when it comes to the applicant . On the contrary , all the witnesses have concordantly testified that she tries to do good things and tries to help others . The doctors treating her have made similar statements . This intention does not , however , obviate the possibility that the actions of the person could cause harm to others . In this case there are sufficient grounds for holding that , if not treated , the applicant could have seriously endangered the health of others .","Other mental health services are inadequate , having regard to the fact that the applicant is in denial as regards her illness . That being the case , it can be held that the applicant would try to avoid treatment and would refuse examinations .","Conclusion","ORG finds , on the basis of the documents in the file and the information received at the oral hearing , that it has been reliably and objectively shown that the applicant was , at the time of the decision of ORG , mentally ill within the meaning of section CARDINAL of LAW . Owing to her mental illness , she was in need of treatment and , if not treated , her mental illness would have considerably worsened or seriously endangered her health and the health of others . Other mental health services would not have been adequate . The conditions for ordering the applicant to undergo involuntary hospital treatment were thus present . The decision of ORG ordering treatment was based on LAW and was made in accordance with the procedure laid down by law . Nor is the decision unlawful . \u201d","On DATE , on the basis of a medical observation report by the doctor treating the applicant and the applicant \u2019s medical records , the head physician of ORG decided to continue her treatment . It was noted that the applicant had , inter alia , criticised the treatment being given in the hospital and had tried to play a role in other ORG treatment in her capacity as a doctor . She had also given them instructions concerning medication , even after she had been forbidden to do so . Open - care measures were considered insufficient , because the applicant was in denial of her illness and completely lacked motivation in relation to her treatment .","DATE . The decision of DATE was submitted for confirmation to ORG ( hallinto - oikeus , f\u00f6rvaltningsdomstolen ) . The applicant also appealed against that decision to the same court , requesting an oral hearing .","On DATE , having obtained a statement from the head physician of ORG and the applicant \u2019s comments on it , ORG dismissed the applicant \u2019s appeal . It observed that the applicant \u2019s condition had improved during treatment and that there had been discussions about a possible transfer to a psychiatric hospital in her home town . The court noted that the applicant was not suicidal and thus not endangering her own health , nor was she violent towards others . She was able to discuss DATE matters in a pertinent and polite manner as long as no one contested her views . However , she was still denying her illness , which manifested itself in her opposition to medical treatment and all further medical examinations offered her . The denial of the illness and lack of motivation in relation to treatment led the court to the conclusion that the applicant would most likely neglect treatment outside the hospital , which would severely aggravate her illness and endanger her health . As her delusion was related to her medical profession and her patients , lack of treatment could also put the health of others at serious risk . ORG also dismissed the applicant \u2019s request for an oral hearing as manifestly unnecessary , making reference to the hearing held by ORG on DATE . Moreover , the court considered that the main issue , that of whether the applicant \u2019s condition had improved to the extent that grounds for involuntary treatment no longer existed , could be adequately resolved on the basis of the case file alone .","The applicant appealed further to ORG , citing , inter alia , the medical opinion of DATE by PERSON , the medical opinion of DATE by PERSON , and those of DATE and DATE by PERSON","On DATE ORG , having obtained a fresh statement from the head physician of ORG and the applicant \u2019s comments on it , upheld the lower court \u2019s decision , on mainly the same grounds . It rejected the applicant \u2019s request for an oral hearing , finding oral evidence on circumstances which prevailed after the adoption of the impugned decision of DATE irrelevant .","On DATE the head physician of ORG took a further decision to continue the applicant \u2019s involuntary care , based on a medical observation report by another hospital physician . It was noted that the applicant \u2019s condition had improved and that she was currently cooperating with hospital staff . While her sense of reality still failed her as far as the criminal charge against her was concerned , she was able to discuss the matter pertinently and without agitation . She was no longer regarded as dangerous to herself or others and planning for her future transfer to outpatient care was considered justified .","NORP That decision was submitted to ORG for confirmation . The applicant appealed against that decision also .","On DATE , having held an oral hearing , ORG found that the applicant was still suffering from psychotic delusions and that her illness was of a chronic nature . According to the court , the cessation of treatment would therefore significantly aggravate her illness . The court also took into account the marked improvement in the applicant \u2019s condition , which had made it possible to plan her gradual transfer to outpatient care . It was noted that the applicant \u2019s medication by injection had been terminated at DATE . The court considered that it had been important for safety reasons to observe the effects of the withdrawal of medication in the hospital and , therefore , other forms of care would have been insufficient at the time .","It is not known whether the applicant lodged a further appeal with ORG .","During her stay in ORG the applicant made representations to ORG , which by letter of DATE noted that it had commenced an investigation of the actions of the medical staff involved in the applicant \u2019s treatment . It did not however have the authority to monitor health care establishments . It informed the applicant that that authority lay with the social and health affairs department of the relevant ORG ( l\u00e4\u00e4ninhallitus , l\u00e4nsstyrelse ) . Nor did ORG have the authority to intervene in the administering of medication or to order the medication to be discontinued . It could , however , assess retrospectively the appropriateness of a doctor \u2019s professional activity .","DATE the applicant lodged a number of other requests with ORG concerning , inter alia , her psychiatric assessment and treatment in ORG . On DATE ORG gave its decision in respect of those complaints . It relied on the judgment of DATE by ORG in finding that the confinement of the applicant in involuntary care had been justified . As a general remark it was noted that the primary and sometimes only symptom of a delusional disorder was a false belief which the patient holds to and attempts to act upon . The delusion was continuous , clear and systematic , and could be very persistent and steadfast . It was common for a patient suffering from a delusional disorder not to manifest any other anomalous behaviour . A special form of delusion was what was known as a querulous delusion , which was characterised by continual claims for rectification , complaints and legal proceedings , driven by psychotic thinking , with the aim of restoring the person \u2019s injured self - esteem . A delusional disorder was treated with therapeutic consultations and antipsychotic medicines . Lack of motivation for treatment and an inadequate response to treatment posed fundamental risks to the successful outcome of medical treatment . As regards the applicant \u2019s treatment , and the forced administration of medication in particular , ORG found no indication of conduct deviating from appropriate and commonly accepted medical practice , so her representations could therefore be considered erroneous . The decision was not subject to appeal .","By letters dated CARDINAL , DATE , DATE and DATE PERSON approached the Chancellor of Justice on the applicant \u2019s behalf , requesting him to take action concerning the involuntary treatment of the applicant . Having regard to the provisions concerning the division of duties between the Chancellor of Justice and ORG , those letters were transmitted to the latter authority . By a letter dated DATE PERSON was informed of the ORG \u2019s decision not to deal with the case , as it was already pending before other authorities , namely ORG , ORG , and the police .","The applicant reported CARDINAL ORG doctors to the police , alleging , inter alia , serious deprivation of liberty . On DATE , having obtained written statements from ORG , the police found that no offence had been committed and closed the investigation .","The applicant also made representations to ORG , which sent the regional medical officer and health care inspector to ORG to interview the applicant and the hospital staff involved in her treatment . The regional medical officer also met the applicant \u2019s representative . Furthermore , the authority acquainted itself with the applicant \u2019s medical records and other documents related to the case and obtained written statements from hospital staff and the applicant \u2019s comments on them . In its decision of DATE ORG noted that the issues raised by the applicant had previously been thoroughly examined by ORG , which had found no irregularities . In the light of its own examination of the case , ORG did not find that there was any reason to take further measures . The decision was not subject to appeal .","In its decision of CARDINAL DATE ORG found that the applicant \u2019s capacity to look after her own interests in the criminal proceedings was reduced by her mental illness and that she was therefore in need of a guardian . The applicant contested this , arguing that she was well .","On DATE , referring to the above statement by ORG , ORG informed the applicant by letter that it had decided under LAW , LAW to appoint a guardian for her in respect of the ongoing proceedings . It was noted that counsel PERSON , who was considered to be suitable for the task , had given his consent . The applicant was provided with the opportunity to give her opinion on the matter by DATE . She was also informed that the court would hold a further oral hearing on DATE and that her attendance at that hearing was not obligatory .","By a letter dated DATE the applicant opposed the appointment of a guardian without giving further reasons . She demanded that all documents concerning that matter be faxed to PERSON and sent to her by post .","On DATE ORG appointed the applicant \u2019s public defender , Mr PERSON , guardian . It was noted in the decision that the applicant was against the appointment of a guardian .","On DATE ORG rejected the appeal signed by the applicant , noting that she was , in the opinion of ORG , in need of a guardian , owing to her mental illness . The court did not find reasons to hold otherwise . Nor did it hold an oral hearing as requested by the applicant . The court did not examine a writ of appeal signed by PERSON , as he did not fulfil the requirements under LAW , LAW , of LAW . Nor did it examine the appeal lodged by the applicant \u2019s daughter , as she had failed to give notice of her intention to appeal as required by LAW , LAW , of the said LAW .","The applicant , represented by PERSON , sought leave to appeal , requesting an oral hearing . She argued that Mr PERSON , whom she had never met , had not acted in her best interests . For instance , he had failed to request an oral hearing in ORG although the applicant had asked him to submit a request to that effect . Nor had he questioned the correctness of the psychiatric assessment . She also submitted that she was in good health and not in need of a guardian .","On DATE ORG refused leave to appeal .","On DATE the applicant submitted to ORG a list of CARDINAL witnesses she wished to examine before the court concerning , inter alia , the events in DATE and the alleged serious deprivation of liberty . She also sought to have PERSON and M - P.H. heard as medical experts . She further identified a number of documents to be adduced as written evidence .","On DATE ORG held the final hearing in the criminal case . The applicant arrived at the court house but left before the hearing began . According to the applicant , she did so because PERSON , whom she had wanted to have heard as a witness , had been removed from the premises by force .","ORG proceeded with the hearing , in which the applicant was represented by her guardian , Mr PERSON The latter did not contest the accuracy of the medical opinion on the applicant \u2019s psychiatric assessment . Nor did he refer to other medical opinions on the applicant \u2019s mental health . He pleaded on the applicant \u2019s behalf that she could only be regarded as an accessory to the offence in her capacity as a doctor . He did not find it necessary to hear witnesses .","In its judgment of DATE ORG found PERSON \u2019s mother responsible for serious deprivation of liberty DATE and DATE . The applicant was found responsible for aiding and abetting ORG \u2019s mother in the commission of that offence DATE and DATE . The court did not pass sentence on them as they were not responsible for their actions at the material time . However , it ordered them to pay damages and legal costs .","As regards the background to the case , the court noted that ORG had been examined from DATE TIME as a result of her mother \u2019s suspicions that she had been sexually abused . The public prosecutor PERSON had decided on DATE not to prefer charges against the father , as there was no evidence that an offence had taken place during the period from DATE . On DATE the public prosecutor PERSON waived charges against another person , as there was no evidence that an offence had taken place in DATE . On DATE the public prosecutor PERSON waived charges against the father , as there was no evidence that an offence had taken place during the period from DATE . In DATE the mother took ORG to a university hospital for examination . Those examinations did not support her suspicions of sexual abuse . On DATE the girl was taken into emergency public care because of her mother \u2019s mental health problems and was placed in a family support centre . An ordinary care order was made in DATE . Meanwhile , on DATE the mother removed the girl from the centre without permission and they were found DATE in a town QUANTITY away , whereupon the girl was returned to the centre by the police . On DATE ORG granted the father sole custody of the girl , who was to see her mother during supervised visits CARDINAL times a week .","As to the applicant \u2019s actions , the court noted that she had expressed a number of opinions which could not be regarded as medical opinions . She had predominantly functioned as an aide to the girl \u2019s mother , making suggestions on what measures to take . The applicant had been aware of the fact that the girl had been taken into public care and on DATE the police had told her that the girl was missing . The court found it established that ORG and her mother had come to meet the applicant on DATE . Since that date the applicant had found accommodation for them and transported them in her car . The applicant had allowed the mother \u2019s mail to be redirected to her address . The court noted that it had not even been suggested that the applicant had been in [ town A ] on DATE .","By a letter dated DATE Mr GPE informed the applicant that , as her guardian , he had notified ORG of the applicant \u2019s intention to appeal against its judgment . He asked the applicant to state her opinion on the judgment in writing and informed her that he would be in GPE on DATE , should the applicant wish to meet him in person . It appears that no meeting took place .","Mr GPE subsequently appealed on the applicant \u2019s behalf , arguing that the charge should be rejected on the grounds of lack of intent . In her capacity as a doctor , the applicant had only wished to protect the mother and the child as she was firmly convinced that the girl had been sexually abused . The guardian took the view that the case could be examined by the appellate court in a written procedure . On CARDINAL DATE Mr PERSON sent a copy of the notice of appeal to the applicant for information , noting that it corresponded , in the main , to the draft he had sent her earlier , on DATE . He also noted that the applicant had not made any comments on that draft .","In her own writ of appeal the applicant requested an oral hearing , at which she wished the court to hear the same CARDINAL witnesses she had requested in the proceedings before ORG . She also questioned the motives of the public prosecutor in bringing charges for an aggravated offence . The applicant had acquired a copy of his notes to the proceedings , in which it was implied that a psychiatric assessment was the only means of treatment , which , in turn , was the only means of stopping the terrorising of the father and the child and the misuse of justice . The applicant later lodged a number of additional submissions with the appellate court .","On DATE , relying on LAW , LAW , point CARDINAL , of the Code of Judicial Procedure , ORG refused the applicant \u2019s request for an oral hearing as manifestly unnecessary . As regards the subject matter , the court upheld the lower court \u2019s judgment , finding no reason to deviate from it . Under LAW , LAW , the court dismissed the applicant \u2019s own belated representations without examining their merits .","The applicant , represented by counsel of her choosing , PERSON , requested leave to appeal .","On DATE ORG refused leave to appeal .","On DATE ORG decided that the applicant \u2019s ability to work as a doctor and her health should be examined .","By an interim decision of CARDINAL DATE ORG prohibited the applicant from practising her profession during DATE .","The applicant was assessed in an open ward of the psychiatric clinic at ORG from DATE to DATE .","The resultant medical opinion of DATE did not note any specific psychiatric disorder affecting the applicant . It was noted , however , that a full examination could not be conducted because the applicant refused to surrender documents from ORG concerning her medical history . It was considered that the fact that she had suffered from a narrowly focused delusional disorder would hamper her ability to function as a sound expert in sexual abuse cases . She should thus concentrate on general paediatrics .","On DATE ORG revoked its decision of DATE , but ordered that the applicant should not deal with suspected child abuse cases in her private practice . The applicant appealed against that decision to ORG and ORG . Those appeals were dismissed on DATE and CARDINAL DATE respectively .","NORP The applicant states that she is again seeing patients at her surgery .","The LAW ( Suomen perustuslaki , ORG grundlag ; PERSON no . ORG ) provides in its relevant parts :","\u201c Section CARDINAL - The right to life , personal liberty and integrity","Everyone has the right to life , personal liberty , integrity and security .","No one shall be sentenced to death , tortured or otherwise treated in a manner violating human dignity .","The personal integrity of the individual shall not be violated , nor shall anyone be deprived of liberty arbitrarily or without a reason prescribed by an LAW . A penalty involving deprivation of liberty may be imposed only by a court of law . The lawfulness of other cases of deprivation of liberty may be submitted for review by a court of law . The rights of individuals deprived of their liberty shall be guaranteed by an LAW ...","Section CARDINAL - The right to privacy","Everyone \u2019s private life , honour and the sanctity of the home are guaranteed ... \u201d","Chapter CARDINAL , Article CARDINAL , paragraphs CARDINAL and CARDINAL , of LAW ( rikoslaki , strafflagen , PERSON no . CARDINAL\/CARDINAL ) provide :","\u201c Prerequisites for criminal liability are that the perpetrator had reached DATE at the time of the act and is criminally responsible .","The perpetrator is not criminally responsible if at the time of the act , owing to mental illness , severe mental deficiency or a serious mental disturbance or a serious disturbance of consciousness , he or she is not able to understand the factual nature or unlawfulness of his or her act or his or her ability to control his or her behaviour is decisively weakened for that reason ( lack of criminal responsibility ) . \u201d","At the relevant time LAW , Article CARDINAL , of the Code of Judicial Procedure ( oikeudenk\u00e4ymiskaari , ORG , PERSON no . CARDINAL ) read :","\u201c The court may , where it is deemed necessary , order a psychiatric assessment of the defendant . Such an assessment may not be ordered against the defendant \u2019s will save in cases where he or she has been placed in detention pending trial or is charged with an offence punishable by a term of imprisonment of DATE . ( CARDINAL )","Separate provisions apply to psychiatric assessment and admission to a mental institution for such an assessment . \u201d","That provision was amended by PERSON no . CARDINAL\/CARDINAL , which took effect on DATE . According to the amended provision , a psychiatric assessment of the defendant may be ordered if the court has , in an interim judgment , found the defendant guilty as charged , such an assessment is justified , and the defendant agrees to the assessment or he or she has been placed in detention pending trial or has been charged with an offence punishable by DATE imprisonment . At the request of the prosecutor , the defendant or his or her guardian , the court may order a psychiatric assessment earlier , during the pre - trial investigation or prior to the main hearing , if the defendant has pleaded guilty to the charge or if the need for such an assessment is otherwise clear .","The relevant parts of LAW ( mielenterveyslaki , mentalv\u00e5rdslagen , PERSON no . DATE ) , as in force at the material time , provided as follows :","\u201c LAW","... LAW and supervision","... In each province the planning , direction and supervision of mental health work is the responsibility of ORG . ORG shall , in particular , supervise the use of limitations on the right of self - determination referred to in LAW ( a ) of this LAW . ( CARDINAL\/CARDINAL ) ...","Section CARDINAL - Treatment given in State mental hospitals","Psychiatric assessments referred to in CARDINAL are conducted in ORG mental hospitals . On the recommendation of a hospital in a hospital district , individuals who are mentally ill or suffering from other mental disorders and whose treatment is particularly dangerous or difficult can be admitted to a ORG mental hospital .","On the recommendation of a hospital in a hospital district , individuals who are not mentally ill or suffering from the other mental disorders referred to in subsection CARDINAL may also be treated in a State mental hospital if appropriate treatment can not be provided in a hospital within the hospital district .","Decisions on admitting to a ORG mental hospital a person accused of a crime or a person whose sentence has been waived because of his or her mental condition are made by ORG , as provided for in section CARDINAL . In other cases decisions on admitting a patient to a State mental hospital , discontinuing treatment and discharging the patient are made by the head physician of the State mental hospital . ( CARDINAL )","... LAW","Section CARDINAL \u2013 Criteria for compulsory treatment","A person can be ordered to undergo treatment in a psychiatric hospital against his or her will only ( CARDINAL ) if the person is diagnosed as mentally ill ; ( CARDINAL ) if the person needs treatment for a mental illness which , if not treated , would become considerably worse or seriously endanger the person \u2019s health or safety or the health or safety of others ; and ( CARDINAL ) if all other mental health services are inapplicable or inadequate ...","LAW","Section CARDINAL - Admission to hospital for psychiatric assessment","If the court orders a person accused of an offence to undergo a psychiatric assessment under LAW , the person accused of the offence may be admitted to a hospital for psychiatric assessment and detained there against his or her will notwithstanding LAW .","Section CARDINAL ( DATE ) - Psychiatric assessment","After ordering a person who is accused of an offence to undergo a psychiatric assessment , the court must forward the associated documents to ORG without delay . ORG shall decide where the psychiatric assessment is to be carried out and , if it is to be carried out outside hospital , by whom .","The psychiatric assessment shall be completed and a statement on the mental condition of the person accused of the offence shall be submitted to ORG not DATE after the start of the psychiatric assessment . If there are reasonable grounds for so doing , ORG may extend the period of the assessment by a maximum of DATE .","When it has received the said statement , ORG shall issue its own statement to the court concerning the mental condition of the person accused of the offence .","Section CARDINAL - Involuntary treatment after psychiatric assessment","If the conditions for ordering a person accused of an offence to undergo treatment against his or her will are met on completion of a psychiatric assessment , ORG shall order the person to undergo treatment against the person \u2019s will . ( DATE )","The person may be detained for treatment against his or her will on the basis of the decision of ORG for a maximum of DATE . Before the end of this period a statement on the observation of the patient shall be produced indicating whether or not the conditions for referring the person for treatment against his or her will are still met . A decision on whether treatment should be continued or discontinued shall be made in writing by [ the head physician in charge of the psychiatric care or , if that physician is ineligible or unavailable , by another physician assigned to the task , preferably CARDINAL specialising in psychiatry ] , before the treatment has continued for DATE . A decision to continue the treatment shall be made known to the patient without delay and shall be immediately submitted for approval of the [ court ] , and the [ court ] shall assess whether the conditions for ordering treatment against the patient \u2019s will still exist . A decision to discontinue the treatment shall also be made known to the patient without delay and shall be submitted immediately to ORG for approval . ORG shall either confirm the decision to discontinue the treatment or , if the conditions for treatment against the patient \u2019s will still exist , order the patient to undergo treatment . ( CARDINAL\/CARDINAL )","On the basis of a decision to continue treatment , the patient may be detained for treatment against his or her will for a maximum of DATE . If it seems probable at the end of this period that continuing the treatment is still necessary , measures shall be taken in accordance with subsection CARDINAL . ( CARDINAL\/CARDINAL )","If it appears during the treatment of a person whose treatment is compulsory that the conditions for ordering the patient to undergo treatment against his or her will do not exist , measures shall be taken in accordance with subsection CARDINAL . ( CARDINAL\/CARDINAL )","Section CARDINAL a ( CARDINAL\/CARDINAL ) \u2013 Specialised psychiatric hospital treatment","ORG shall decide on initiating involuntary treatment of a person accused of a crime ; the treatment shall take place in a hospital which has the facilities and particular expertise required for the treatment of the patient .","When the patient \u2019s need for treatment changes , the physician referred to in LAW shall immediately take measures to transfer the patient to a hospital which can provide the treatment the patient requires .","The need for treatment in a ORG mental hospital shall , however , be assessed DATE the treatment , in collaboration with the hospital district in whose area the patient \u2019s home municipality is located .","Chapter CARDINAL","Section CARDINAL a ( CARDINAL\/CARDINAL ) - ... general conditions for limiting fundamental rights",".... A patient \u2019s right of self - determination and other fundamental rights may be limited by virtue of the provisions of this LAW only to the extent necessary for the treatment of the illness or for the person \u2019s safety or the safety of others , or to safeguard some other interest laid down in this LAW . The measures shall be undertaken as safely as possible and with respect for the patient \u2019s dignity . When choosing and determining the extent of a limitation on the right of self - determination special attention shall be paid to the criteria for the patient \u2019s hospitalisation ...","Section CARDINAL b ( DATE ) - Treatment of mental illness","A patient must be treated , as far as possible , in an atmosphere of mutual understanding . A care plan must be drawn up when treatment is being provided .","In treating a patient with mental illness the only medically acceptable methods of examination and treatment are those which , if not used , would seriously jeopardise the health and safety of the patient or others .","The physician attending the patient decides on the treatment and examinations which are to be given regardless of the patient \u2019s wishes . The attending physician also decides whether to hold or tie down the patient and whether to take other similar measures for the period of the treatment , or whether to take other short - term restrictive measures necessary to give treatment ...","LAW","... Section CARDINAL ( CARDINAL\/CARDINAL ) \u2013 Appeal","An appeal may be lodged with the [ court ] against the decision of a hospital physician to order a person to have treatment or to continue treatment against the person \u2019s will ...","Section CARDINAL - Enforcement and interruption of enforcement","A decision to order a patient to undergo treatment against his or her will or to continue such treatment , or to take possession of personal property or to limit contacts , shall be enforced immediately irrespective of whether or not the decision has been submitted to another authority for confirmation or an appeal has been lodged . ( CARDINAL\/CARDINAL )","After a decision has been submitted to another authority or an appeal lodged against it , the authority in question or appellate authority may forbid the enforcement of the decision or order it to be stopped .","Section CARDINAL - Urgency of the proceedings","Submissions or appeals relating to treatment given against a patient \u2019s will , and matters relating to mental health assessment , must be dealt with urgently ... \u201d","According to the preparatory documents relating to section DATE of LAW PERSON HE DATE vp ) , a care order issued for the involuntary hospitalisation of a psychiatric patient is understood to contain an automatic authorisation to treat the patient , even against his or her will . Although the doctors may seek to obtain a person \u2019s consent prior to the treatment , there is no obligation to have such consent in written form or to seek such consent from the patient \u2019s relatives or guardian . If a patient refuses to give his or her consent or withdraws consent previously given , the provision allows the forced administration of medication . This is in the interest of the patient in order to secure his or her constitutional right to necessary care in a situation in which the patient is not personally able to make a decision about the treatment on account of his or her illness .","Section CARDINAL ) of LAW ( hallinto - oikeuslaki , lagen om f\u00f6rvaltningsdomstolarna , PERSON no . DATE ) provides that in administrative courts an expert member participates in the consideration of , and decision on , matters concerning the order of involuntary care and continuing involuntary care of a person referred to in LAW .","The relevant provisions of ORG ( laki terveydenhuollon ammattihenkil\u00f6ist\u00e4 , lagen om yrkesutbildade personer inom h\u00e4lso- och sjukv\u00e5rden , Law no . CARDINAL\/CARDINAL ) , as in force at the material time , read as follows :","... Section CARDINAL - Obligations related to professional ethics","The work of health care professionals has the objective of promoting and maintaining health , preventing illness , curing those who are ill and alleviating their suffering . In their professional activities , health care professionals must employ generally accepted , empirically justified , methods , in accordance with their training , which should be continually supplemented . Each health care professional must weigh the benefits to the patient of their professional activity against its possible hazards ...","Section CARDINAL - Guidance and supervision","The general guidance of health care professionals lies with ORG and ORG .","ORG is responsible for the guidance and supervision of health care professionals ...","Within a province the activities of health care professionals are guided and supervised by ORG ...","The Decree on ORG ( asetus terveydenhuollon oikeusturvakeskuksesta , f\u00f6rordningen om r\u00e4ttskyddscentralen f\u00f6r h\u00e4lsov\u00e5rden , no . DATE , with subsequent amendments ) contains provisions concerning , inter alia , ORG within that authority . LAW , as amended by PERSON no . CARDINAL and in force at the relevant time , provided that ORG dealt with and decided on matters concerning the mental state of a person charged with an offence , or matters related to the ordering of treatment of such a person , or a person not sentenced to a punishment because of his or her mental state , in psychiatric hospital care , and the cessation of such treatment . ORG was composed of a chairman , who had to be an official of ORG , and CARDINAL other members . CARDINAL of the members had to be an expert in the field of law , and CARDINAL members , CARDINAL of whom also had to be a representative of municipal health care , had to be an expert in the field of psychiatry .","ORG ceased to exist on DATE , and their tasks have been transferred to various other authorities . Prior to that rearrangement within the administration , the provisions regulating the tasks of ORG were to be found in CARDINAL different statutes . General information about the tasks and powers of that authority may be found in the Government PERSON HE DATE vp concerning , inter alia , certain amendments to LAW . According to that document , ORG were to exercise guidance and supervision of ORG mental hospitals , among a number of other institutions and services . This was implemented , inter alia , by way of distribution of information , on - site inspections and dealing with complaints . In PERCENT of the decisions given by ORG in DATE , in their capacity as supervising authorities , no appearance of inappropriateness to a degree which would have justified their taking measures was found ; PERCENT of the cases dealt with resulted in the attention of a health care professional being drawn to the matter , and an admonition was given in PERCENT of the cases .","The relevant parts of LAW , section CARDINAL of LAW ( laki oikeudenk\u00e4ynnist\u00e4 rikosasioissa , lagen om r\u00e4tteg\u00e5ng i brottm\u00e5l , PERSON no . CARDINAL\/CARDINAL ) provide as follows :","\u201c A person suspected of an offence has the right to defend him or herself in pre - trial investigations and at the trial ...","A public defender shall be appointed for the suspect of the court \u2019s own motion when : ( CARDINAL ) the suspect is incapable of defending himself or herself ; ( CARDINAL ) the suspect , who has not retained a public defender , is DATE , unless it is obvious that he or she has no need of one ; ( CARDINAL ) the public defender retained by the suspect does not meet the qualifications required of a public defender or is incapable of defending the suspect ; or ( CARDINAL ) there is another special reason for the same . \u201d ( DATE )","LAW , LAW ) reads :","\u201c A person appointed under LAW ... as public defender ... must be a public legal - aid attorney or an advocate . If there is no suitable public legal - aid attorney or advocate available or there is another special reason to do so , another person with a degree of [ Master of Law ] who by law is qualified to act as an attorney may also be appointed as public defender ... The person to be appointed as public defender ... must have an opportunity to be heard on the appointment . \u201d ( CARDINAL )","Chapter CARDINAL , Article CARDINAL , of the Code of Judicial Procedure ( Law no . CARDINAL ) reads :","\u201c If a party is incapable of looking after his or her interests in court proceedings owing to illness , mental disorder , ill health or another similar reason , the court before which the case is pending may of its own motion appoint a guardian for that party for the purposes of the proceedings . The provisions of the LAW shall apply to such guardian .","Unless the court decides otherwise , the appointment of the guardian shall remain in effect before an appellate instance where the matter is pending on appeal . \u201d","Section CARDINAL of LAW ( laki holhoustoimesta , lagen om f\u00f6rmyndarverksamhet , Law no . CARDINAL ) provides that a suitable person who consents to the appointment is eligible as a guardian . In the assessment of the suitability the skills and experience of that person , among other things , and the nature and extent of the task shall be taken into account .","Chapter CARDINAL of the Code of Judicial Procedure ( Law no . CARDINAL\/CARDINAL ) lays down provisions concerning the procedure to be followed in dealing with petition - based cases ( hakemusasia , ans\u00f6knings\u00e4rendet ) in ORG . Those provisions apply also to such petition - based cases which the court may take into consideration of its own motion ( LAW ) . A petition - based case shall be examined in chambers or at a hearing . If a party , a witness or another person is to be heard in person , a hearing must be held . A hearing must also be held if the matter has been contested and a party requests a hearing or if the court considers a hearing necessary for the matter to be resolved ( LAW ) . If a party is to be reserved an opportunity to be heard in a petition - based case , the court must invite him or her to submit a written statement ( LAW . A petition - based case may be dealt with in connection with related criminal proceedings , if that is possible without impeding the proceedings ( LAW .","Chapter CARDINAL of the Code regulates the appeal procedure in ORG . LAW no . PERSON ) reads as follows :","\u201c An oral hearing shall be held in ORG if a party to a civil case or the injured party or the defendant in a criminal case so requests .","However , an oral hearing need not be held for the reason referred to in subsection CARDINAL , if : ( CARDINAL ) in a civil case amenable to settlement , the opposing party has consented to the appellant \u2019s request for a change ; ( CARDINAL ) in a criminal case only the appellant has requested a full hearing and it is the appeal decision which makes the ruling on the case ; ( CARDINAL ) the person requesting a main hearing is satisfied with the decision of ORG and the decision is not changed to his or her detriment ; ( CARDINAL ) the appeal is manifestly ill - founded ; ( CARDINAL ) the matter is to be decided in the case is procedural only ; or ( CARDINAL ) a full hearing is for another reason manifestly unnecessary .","The provisions in paragraph CARDINAL and in paragraphs CARDINAL \u00a7 CARDINAL and QUANTITY also apply , in so far as appropriate , when hearing an appeal lodged in a petition - based case . \u201d","According to the relevant Government PERSON ( HE CARDINAL ORG ) the term \u201c ill - founded \u201d in LAW , LAW , point CARDINAL , of the Code refers to a situation where it is impossible for the grounds presented in the appeal to lead to the changes requested . An appeal is also ill - founded where the grounds for it do not correspond to the generally known facts . The provision may also be applied in criminal cases where , inter alia , the defendant requests an acquittal relying on matters which he or she would present at the oral hearing but which could not have any impact on a decision in the case . No consideration is to be given to the gravity of the offence or the sentence imposed when that provision is applied .","Chapter DATE , LAW ( Law no . PERSON ) reads :","\u201c ORG shall hold an oral hearing , regardless of whether CARDINAL has been requested , if a decision on the matter turns on the credibility of the testimony admitted in ORG or the findings of ORG in a judicial inspection , or on new testimony to be admitted in ORG . In this event , the evidence admitted in the ORG shall be readmitted and the inspection carried out again in an oral hearing , unless there is an impediment to this . \u201d","Chapter CARDINAL , section CARDINAL \u00a7 CARDINAL of LAW stipulates , inter alia , that it is a court \u2019s task to ensure that a case is dealt with in a coherent and orderly manner . It shall also ensure that the proceedings are conducted appropriately and that no irrelevant issues are introduced .","Paragraph CARDINAL of the ORG report concerns the consent of a patient to treatment given in a mental hospital . It reads as follows :","\u201c Patients should , as a matter of principle , be placed in a position to give their free and informed consent to treatment . The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent . It follows that every competent patient , whether voluntary or involuntary , should be given the opportunity to refuse treatment or any other medical intervention . Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances .","Of course , consent to treatment can only be qualified as free and informed if it is based on full , accurate and comprehensible information about the patient \u2019s condition and the treatment proposed ; to describe ECT as \" sleep therapy \" is an example of less than full and accurate information about the treatment concerned . Consequently , all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them . Relevant information ( results , etc . ) should also be provided following treatment . \u201d","The ORG visited GPE from DATE , ORG being among the establishments visited . In paragraph CARDINAL of its report , published on DATE , the ORG made the following remark :","\u201c As regards safeguards , the procedures concerning the mental examination of persons accused of a crime and the initial placement of such persons offered , overall , adequate guarantees of independence and impartiality as well as objective medical expertise . By contrast , the manner in which an order for treatment in respect of both civil and forensic patients was being renewed would merit a reassessment . The ORG considers that the periodic review of an order to treat a patient against his \/ her will in a psychiatric hospital should involve a psychiatric opinion which is independent of the hospital in which the patient is detained . \u201d","NORP On its next visit to GPE , CARDINAL DATE , the ORG visited , inter alia , ORG and another psychiatric establishment . In its report , published on DATE , the ORG made , inter alia , the following remarks and recommendations :","\u201c ... CARDINAL - In both establishments , the use of psychiatric medication appeared appropriate . As regards ORG , the current rhythm of formal multidisciplinary clinical review ( twice a year ) is not sufficient . Staff representing different specialties ( psychiatrists , nurses , psychologists , occupational and work therapists , social workers ) should all meet and discuss each patient \u2019s condition and progress on a more frequent basis . The ORG recommends that steps be taken in the light of these remarks ...","CARDINAL - Involuntary hospitalisation of a psychiatric patient continued to be construed as automatically authorising treatment without his \/ her consent . In practice , doctors in the CARDINAL psychiatric establishments visited sought to obtain ORG verbal consent to treatment , but there was no written proof that such informed consent had been given . Further , a patient \u2019s refusal or subsequent withdrawal of consent to treatment did not result in an external independent psychiatric review as to whether treatment could be provided against the patient \u2019s will . In addition , patients could not appeal against such decisions to a court .","The ORG recommends that a special form relating to informed consent to treatment , signed by the patient and ( if he is incompetent ) by his legal representative , be introduced at the ... and ORG ( as well as in all other psychiatric establishments in GPE ) . The relevant legislation should be amended so as to require an external psychiatric opinion in any case where a patient does not agree with the treatment proposed by the establishment \u2019s doctors ; further , patients should be able to appeal against a compulsory treatment decision to the court ... \u201d"],"violated_articles":["5","8"],"violated_paragraphs":["5-1","8-1"],"violated_bulletpoints":["5-1-e"],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61100","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2003,"docname":"CASE OF HEWITSON v. THE UNITED KINGDOM","importance":4,"conclusion":"Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings","judges":"Matti Pellonp\u00e4\u00e4;Nicolas Bratza","text":["The applicant was born in DATE and is currently serving a sentence of imprisonment in GPE .","The applicant owned a garage in GPE and had business connections in GPE . He had CARDINAL ORG cars each of which had a false compartment in the fuel tank . The false compartments could hold up to QUANTITY of cannabis resin . From DATE he was suspected by the police of being involved in drug trafficking . The police also suspected him of being involved in the handling of stolen goods , including stolen vehicles .","On DATE he was arrested by the GPE police in relation to their suspicions of his handling stolen goods . Whilst he was in custody , a listening device was installed at his garage LOC which remained there and active until DATE when it was discovered .","On DATE an indictment was signed charging the applicant with conspiracy to import controlled drugs and conspiracy to supply controlled drugs , namely cannabis . The prosecution evidence against the applicant relied on tape recordings made from the listening device which had been installed by the police at the applicant \u2019s garage premises . It was acknowledged by the prosecution that without the evidence from the tapes , there was no prima facie case against the applicant .","The applicant objected to the admission of the tape recordings as evidence in his trial . He argued inter alia that the original grant of authority and the renewal of authority for the placement of the listening device were not in compliance with ORG , which governed the use of surveillance equipment by the police at the relevant time . He submitted that his prosecution ought to be stayed as an abuse of the process of the court , alternatively the tape evidence should be excluded under section CARDINAL of ORG \u201c PACE \u201d ) .","A preliminary hearing was held on the matter of the admissibility of the tape recordings . His Honour Judge PERSON held on DATE that he was satisfied that the original authority for the use of the surveillance equipment was properly granted and that there were proper grounds for renewal , though he made some criticism of the lack of documentation on the renewals and noted that there had been a technical infringement in that CARDINAL renewal took place DATE . The judge concluded that the tapes were admissible as evidence and should not be excluded under section CARDINAL of PACE .","Following the admission of the tapes as evidence , the applicant pleaded guilty to the charges of conspiracy to import controlled drugs and conspiracy to supply controlled drugs , namely cannabis . On DATE he was sentenced to CARDINAL years\u2019 imprisonment .","The applicant was granted leave to appeal against his conviction . On DATE , ORG held that in the light of the applicant \u2019s pleas of guilty his convictions could not be regarded as \u201c unsafe \u201d and rejected his appeal .","Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices . The Guidelines were available in the library of ORG and were disclosed by ORG on application .","In each case , the authorising officer had to satisfy himself that the following criteria were met : a ) the investigation concerned serious crime ; b ) normal methods of investigation must have been tried and failed , or must from the nature of things , have been unlikely to succeed if tried ; c ) there was good reason to think that use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ; d ) the use of equipment was operationally feasible . The authorising officer had also to satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence .","The CARDINAL Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on CARDINAL DATE .","Since DATE , these controls have been augmented by Part II of ORG ( \u201c RIPA \u201d ) . In particular , covert surveillance in a police cell is now governed by sections GPE ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police ."],"violated_articles":["8"],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-98259","languageisocode":"ENG","respondent":"TUR","branch":"CHAMBER","date":2010,"docname":"CASE OF TEHRANI AND OTHERS v. TURKEY","importance":3,"conclusion":"Remainder inadmissible;Violation of Art. 3 (in case of expulsion to Iran or Iraq);Violation of Art. 13+3;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award","judges":"Andr\u00e1s Saj\u00f3;Fran\u00e7oise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky","text":["The applicant was born in DATE and is currently being held in the ORG Admission and ORG ( PERSON ) ( the \u201c FAC \u201d ) .","The applicant left GPE on DATE and joined ORG ( \u201c LOC ) in FAC in GPE on DATE . Following the disarmament of the ORG on DATE , he started living at ORG ( \u201c the TIPF \u201d ) , also in GPE . On CARDINAL DATE the ORG High Commissioner for Refugees ( \u201c ORG \u201d ) in GPE recognised the applicant as a refugee .","With the assistance of a people - smuggler , the applicant left GPE at DATE . In his application form the applicant stated that he was arrested on DATE , whereas in his CARDINAL subsequent statements given to the NORP authorities he stated that he was arrested in GPE on DATE . Among the documents submitted by the ORG is a list of individuals arrested on DATE and the applicant 's name is included therein .","The applicant was initially taken to a police station following his arrest . It appears from the documents submitted by the Government that at this station the applicant 's fingerprints were taken on DATE and , during his questioning on DATE , he was informed that he had been arrested for illegal entry into the country . The statement form dated DATE bears the applicant 's signature as well as that of a translator .","On DATE the applicant was transferred to the ORG and ORG ( ORG , the \u201c ORG \u201d ) in PERSON where , on DATE , he was questioned about his entry into GPE , his political background and the reasons for his flight from his country of origin .","The authorities initially transferred the applicant to a larger building at FAC on DATE , then to ORG on DATE .","NORP The applicant , an NORP national , was born in DATE and is currently being held at FAC .","The applicant was living in GPE with his wife and CARDINAL children when he became involved with the ORG . In DATE they fled to GPE , where he was recognised as a refugee by the ORG . At the time the applicant 's wife was pregnant with their sixth child . The applicant and his family resettled in GPE in DATE . DATE the applicant left GPE to join the ORG in GPE . In DATE he defected from the ORG and initially stayed at the ORG and then at FAC until DATE .","NORP Some time in DATE the applicant re - established contact with his family in GPE and left the PERSON on DATE . With the assistance of a people - smuggler he entered GPE illegally in either DATE and went to GPE . He lodged a request with the NORP authorities in GPE for a visa to enter GPE . While waiting for the outcome the applicant decided to flee to GPE .","The applicant stated before the ORG that he was arrested by the NORP authorities on TIME and taken to a gendarmerie station in GPE , ORG , where he asked for asylum and temporary leave to remain in GPE . He was then transferred TIME to an abandoned warehouse operated by ORG and kept there for DATE , before being transferred to a detention facility in GPE on DATE . The applicant was held here for a period of DATE .","In their submissions the ORG maintained that , following his arrest , the applicant was held at the accommodation centre for foreigners within the LOC of ORG ( the \u201c FAC \u201d ) . Among the documents submitted by the ORG , an arrest report lists the names of CARDINAL foreigners arrested on DATE , among whom there is a certain PERSON , an NORP national aged DATE . A transfer document dated DATE lists CARDINAL NORP nationals , which includes the same PERSON but notes that he was arrested on DATE . This document further indicates that these CARDINAL individuals were transferred from the gendarmerie headquarters to FAC .","On DATE the NORP authorities granted the applicant a visa to enter GPE . On DATE he was further granted work and residence permits for GPE .","On DATE the authorities transferred the applicant to ORG where he has been held since .","On DATE , either in GPE or in GPE , a police officer took the applicant 's statement in relation to the asylum procedures . The applicant stated that he and his family had been resettled in GPE DATE by the ORG . He had then returned to GPE on duty . He had been arrested by the NORP authorities while attempting to return to GPE after having completed his duty .","On DATE the ORG received a letter from the applicant requesting to withdraw his application . On DATE the applicant 's representative notified the ORG that the applicant wished to pursue his application . On DATE the applicant 's representative sent to the ORG CARDINAL letters written by the applicant on DATE , in LANGUAGE and in LANGUAGE , noting that he had been held in detention for DATE and specifying that he wanted to be deported to GPE where his life would be in danger . The applicant 's representative further submitted a psychological status report drawn by PERSON , apparently a free lance psychologist . The report indicated that the applicant was showing depressive symptoms , stress and anxiety disorder and that he needed urgent psychological and psychiatric support . In this connection it was further stated that the applicant said that he wished to go back to GPE which meant committing suicide and that he considered this to be better than the vagueness of his present situation .","Following the ORG 's interim measure requesting diagnosis of the applicant 's mental state to be carried out in a fully equipped state hospital , the ORG submitted on DATE a medical report drawn by a psychiatrist on CARDINAL March DATE . This single paragraph report stated that the applicant did not suffer from a psychotic illness , that he had insight into his condition and further diagnosis could not be carried out since the applicant refused to undergo a thorough psychiatric examination .","The applicants were born in DATE and DATE respectively . They are currently settled in GPE on the basis of a temporary residence permit .","The first applicant ( PERSON ) was involved with the ORG in DATE , while he was studying in GPE ( \u201c the GPE \u201d ) where he lived DATE . He then went to GPE , was recruited by the ORG and lived in FAC until DATE . After leaving ORG , the applicant went to the ORG where the ORG recognised his refugee status on DATE . The applicant left the ORG on DATE and went to GPE , where he met the second applicant .","The second applicant ( P.R.S. ) joined the FAC in GPE in DATE . In DATE he defected from the organisation and went to reside in the ORG , where the ORG recognised him as a refugee on DATE .","In DATE the applicants decided to flee GPE and go to the GPE ; they paid MONEY ( ORG ) to people - smugglers . On DATE they crossed the border from GPE to GPE , where they were arrested and sent back . Upon arrival on NORP territory on DATE , the NORP border officials arrested the applicants along with many others and drew up a list of names involving CARDINAL foreigners . It is further stated in this document that , in the absence of a translator , those listed could not be questioned with regard to the alleged breach of LAW . The authorities took the applicants to ORG DATE .","On DATE officers at the Passports and Foreigners ' Directorate ( \u201c GPE Yabanc\u0131lar \u015eube M\u00fcd\u00fcrl\u00fc\u011f\u00fc \u201d ) questioned the applicants . Statement forms drawn up during the questioning indicate that , stating they spoke NORP , the applicants did not request a translator and gave a brief description of their background as well as how they had travelled to GPE . The Statement forms further indicate that the applicants were transferred to the said ORG following judicial proceedings against them for having illegally entered GPE .","On DATE the applicants were transferred to the K\u0131rklareli Accommodation Centre .","On DATE the applicants requested ORG to release them .","ORG ordered the applicants ' release on DATE respectively . The authorities released the applicants on DATE and granted a temporary residence permit valid for DATE . On an appeal by ORG , ORG overturned , by a decision of CARDINAL DATE , ORG decision in respect of the first applicant . The court based its decision on public order and general security grounds due to the applicant 's former ORG membership . At the time the judgment was drafted the applicant had not yet been recalled to ORG .","The applicants in applications ORG . CARDINAL and CARDINAL mainly complained about overcrowded rooms , poor hygiene , the poor quality of food , a lack of proper drinking water , medical attention , insufficient hot water for bathing , an insufficient number of public telephones , and a lack of fresh air and exercise .","In this connection the applicant in application no . CARDINAL\/CARDINAL submitted varying figures in respect of the size and capacity of the accommodation centre . Accordingly , he claimed in his initial application form that he had been kept in a building ( \u201c the first building \u201d ) consisting of CARDINAL rooms , each measuring QUANTITY with CARDINAL beds and accommodating CARDINAL detainees . Thus he had to sleep on the floor for DATE before being able to occupy a bunk bed . Following his transfer to a bigger building ( \u201c the second building \u201d ) , the applicant submitted that this new place had been QUANTITY accommodating a varying number of people , from CARDINAL . In his final submissions to the ORG , the applicant maintained that the men 's unit in the first building measured QUANTITY , the sleeping area of which was QUANTITY , containing CARDINAL beds for an average of CARDINAL persons . In these submissions the applicant further stated that the second building was QUANTITY with a sleeping area of QUANTITY and accommodated an average of CARDINAL persons without any ventilation or sufficient light . The applicant added that , during DATE following his transfer to the second building , there had been no beds at all and the occupants had had to sleep on an insufficient number of dirty blankets and mattresses placed on the floor . CARDINAL bunk beds had gradually been brought into the accommodation centre . The building furthermore had no heating . There had been CARDINAL toilets without a flush , scarce hot water and no working showers . The applicant had only been allowed into the fresh air CARDINAL times during his DATE stay at ORG .","The applicant in application no . CARDINAL initially submitted CARDINAL photographs in respect of the first building he had been kept in . The photographs seem to have been taken with a mobile telephone . It is not clear whether these photographs are of the same room or of different rooms . There are bunk beds closely lined up parallel to the walls of the room with no apparent sheets , covers or pillows , some with blankets . In all photographs there is an uncountable number of men either lying down in the space in the middle of the room , within touching distance of each other , or sitting on blankets on the floor . Some of the men seem to be walking around those who are lying down . CARDINAL of the photographs shows men leaning over some individuals lying on the floor to reach a public telephone on the wall . In another photograph a crowd of men is sitting on the floor elbow to elbow eating a meal while others appear to be queuing for theirs at the far end of the room .","The applicant in application no . CARDINAL\/CARDINAL subsequently submitted video footage of the second building and photographs derived from it , which had been recorded on the mobile telephone of another individual following the applicant 's departure . These visual submissions indicate that individuals were kept in a hangar - like hall with bunk beds lined up close to each other by the walls and numerous dirty mattresses spread around on the floor in the middle , mostly without any linen , pillows or blankets . The photographs and footage lack sufficient light . TIME seems to enter the hall from a number of windows placed near the high sloping roof and the main entrance to the hall , which is accessed through iron bars . The exact number of toilets and showers is not clear , since a piece of cloth has been placed in front of a door , blocking the view behind . However , as far as can be established , there appear to be CARDINAL stained toilets , a broken shower and a row of taps near a wall , possibly for washing feet . The building in general appears worn and dirty . The visual submissions do not reveal lockers , tables , chairs or any sort of personal items .","The applicants in application no . CARDINAL\/CARDINAL submitted the same CARDINAL photographs described above in respect of application no . CARDINAL . They claimed in their initial application form that the facility they had been kept in consisted of CARDINAL rooms and a bathroom , measuring in total QUANTITY with an average of CARDINAL people and CARDINAL beds . In their subsequent submissions they stated that the facility measured QUANTITY in total , with an average of CARDINAL individuals and a total of CARDINAL beds . The applicants maintained that , as a result , many individuals had to sleep on the floor with no bedding at all . They contended that the rooms did not have proper lighting or ventilation . Furthermore , they had not been allowed to spend time outdoors , which had been particularly unbearable due to cigarette smoking indoors .","The applicants contested the ORG 's replies summarised below .","The Government maintained that there were CARDINAL buildings for the purpose of holding illegal migrants , the total capacity of which amounted to CARDINAL persons . In this connection the ORG stated that the photographs submitted by the applicants had been taken during a TIME period when newcomers were gathered for pre - interview , interview and medical screening stages , following which they would have been settled in their rooms .","The food distributed at the accommodation centre consisted of CARDINAL - course meals and was supplied by a catering company . There was constant hot water for bathing and a water purifier for drinking water . The accommodation centre did not have a clinic but had an infirmary . Those who were sick were taken to local hospitals . The wards were regularly disinfected to ensure hygiene .","In support of their submissions the ORG provided CARDINAL photographs , which showed a big glass medicine container , rows of bunk beds placed close to each other with brand new mattresses still in their plastic coverings and pillows piled in a corner , a shower which did not appear to have a door or a curtain , a public telephone , a CARDINAL - course meal served on a tray , a water purifier , an on - site shop and a playground for children , as well as a small football field .","In application no . CARDINAL\/CARDINAL the applicant referred to the submissions of the applicants in application no . CARDINAL\/CARDINAL , and maintained that the conditions at the K\u0131rklareli Accommodation Centre were better than those at the ORG due to fewer detainees and time outdoors . He maintained however that this facility was intolerable for an extended stay , because the food distributed lacked nutritional and calorific value , the water was undrinkable , hot water was not regularly available , work and educational activities were not provided and there was only minimal medical support .","In their submissions to the ORG , the applicants in application no . CARDINAL\/CARDINAL maintained that the physical conditions in the FAC were below the minimum standards set by ORG for the Prevention of Torture ( \u201c the ORG \u201d ) . In this respect they submitted a drawing of a room which they maintained was QUANTITY . Providing a number of photographs the applicants complained in particular that the hygiene and quality of food served to detainees had been poor and the drinking water extremely chalky . They therefore had to buy food from the over - priced on - site shop . The applicants further contended that they had insufficient access to hot water for showering . The applicants additionally complained that the FAC lacked proper recreation and exercise space , as well as medical facilities . The exercise facilities outdoors were only accessible TIME","Photographs presented by the applicants show CARDINAL - course meals varying between soup , mixed vegetables , bulgur , beans , chick - peas , lentils , bread and jam . There seems to be a white chalky substance at the bottom of a glass of water . Large cauldrons of food appear placed on tables in a hall . There are photographs of a dilapidated , unused kitchen . Some photographs show meals distributed by staff members , others by detainees . CARDINAL of the photographs indicates that the staff member distributing food is wearing plastic gloves . There are no queues for meals . The applicants further submitted photographs of CARDINAL showers in closed cabins . CARDINAL of the showers appears to be broken . There are also photographs of CARDINAL squat toilets , CARDINAL with dark stains and the other appearing reasonably clean . Applicants also submitted photographs of barbed wire surrounding the accommodation facility , metal bars outside their windows , a tower water tank , rubbish containers where there seem to be large amounts of cartons , paper and plastic bags lying around , as well as a broken plastic chair , and a volleyball field with overgrown grass . There are also photographs of a round - table gathering apparently between ORG officials and occupants of the accommodation centre , as well as of a religious ceremony , the subsequent distribution of meat and an exchange of greetings .","The applicants objected to the ORG 's replies below .","The Government submitted that the rooms were of a standard size , shared by CARDINAL people and measuring QUANTITY . They maintained that the kitchen facility seen in the photographs submitted by the applicants was not in use and the food was supplied externally by a catering company . With regard to the tap water , the Government stated that the staff had been using the same water supply and that there had been no medical incident arising from its use . Additionally the Government provided photographs of various social events organised at the accommodation centre . Other photographs included those of a medical clinic in the centre , individuals playing volleyball and walking around in the garden , playing in the snow , a girl around the age of CARDINAL riding a small bicycle outdoors , the distribution of meals , toilets and sinks , a prayer room , a football field , a television room and a table tennis facility . CARDINAL of the rooms appears to have a toilet and shower . Other photographs indicate that there is a separate shower and toilet area as well as a washing machine for common use . Some of the photographs provide images of DATE life , such as an individual painting on canvas or CARDINAL individuals having tea in a room . Rooms seem to have natural light coming through large windows . Whether bunk beds or ordinary beds , all beds appear to have pillows , blankets and linen . Photographs show that the rooms are equipped with curtains , ceiling lights , large personal lockers and central heating radiators . They are decorated with detainees ' personal belongings , such as carpets on floors or posters on walls . Some rooms seem to have plastic tables and chairs . In CARDINAL of the photographs there is a computer , a ventilator and a small Christmas tree . The Government also presented photographs of the barbed - wire perimeter , empty rubbish containers , the collection of garbage by municipality staff and an official giving presents to occupants .","The applicant in application no . CARDINAL\/CARDINAL complained that he had initially been detained for DATE in poor conditions in an overcrowded warehouse operated by ORG . He claimed to have been held in unhygienic conditions with insufficient natural light and ventilation , insufficient access to sanitary facilities , without bedding , safe drinking water , proper food , medical support , sufficient hot water , any indoor or outdoor activities or contact with the outside world .","With respect to the conditions at the Didim Accommodation Centre , the applicant maintained that he shared a dormitory with CARDINAL other people and had no privacy . He suffered from a lack of fresh air , proper food , drinking water , proper bedding , extra clothing , personal hygiene items and hot water , as well as insufficient access to sanitary facilities . He had observed a total of CARDINAL beds and CARDINAL occupants in the centre during his stay . He had not been allowed access to the outdoors and was refused contact with the outside world .","The applicant further contested the ORG 's replies summarised below .","The Government maintained that the applicant had been taken to the Didim Accommodation Centre following his arrest , and did not reply to the applicant 's allegations regarding his alleged detention in a warehouse operated by ORG . With respect to the FAC , the Government maintained that there were CARDINAL dormitories with bunk beds . The families were kept in separate rooms where possible . All rooms had windows opening outward . The facility had a kitchen , prayer room , dining hall , television room , toilet , bathroom and QUANTITY hot water . According to the Government , the tap water was drinkable and the food at the centre was provided by a catering company . The inhabitants of the accommodation centre underwent DATE medical checkups and medicine was provided by the ORG . Likewise , cleaning materials such as washing powder , soap and bleach , was provided by ORG . In this connection the Government provided a number of receipts indicating payments to a catering company , bakery , market and a dairy products company . ORG also submitted the menu served at the accommodation centre DATE . The menu indicates that meals consisting of CARDINAL to CARDINAL courses were served every day of the week . The food varied between soup and vegetables , pasta and meat or meatballs and dried beans and yoghurt . Salad and fruit seem to be served occasionally . The ORG further submitted CARDINAL receipts dated CARDINAL and DATE indicating payment to a pharmacy for a total of CARDINAL prescriptions .","The Government provided CARDINAL photographs of the FAC . There are photographs of CARDINAL separate rooms , seemingly occupied by CARDINAL families . The rooms have large windows with curtains and iron bars on the outside , central heating radiators and bunk beds with white bedding and blankets . In CARDINAL of the rooms there is a flat carpet and in the other a plastic chair . There are also photographs of a kitchen with an electric stove , a squat toilet , an electric water heater , a small sink and what seems to be the main entrance of the centre .","A description of the relevant domestic law and practice concerning asylum procedures may be found in the case of GPE and GPE v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , CARDINAL DATE ) .","A.A. , an NORP refugee , was held in an accommodation centre at the relevant time . On DATE he requested ORG to release him and subsequently lodged a case with ORG on DATE . Stating that he had been recognised as a refugee by ORG , PERSON mainly argued that his detention was unlawful . At the time , PERSON 's request for a residence permit on family reunification grounds was under examination by the NORP authorities . On DATE ORG ordered PERSON 's release .","Following his visit to GPE DATE and DATE , the Commissioner for Human Rights of ORG published a report on DATE regarding , inter alia , the situation of asylum seekers and refugees . The relevant part of the executive summary reads as follows :","\u201c ... Having welcomed the efforts made by the NORP authorities to improve living conditions in places of detention he visited [ GPE and GPE ] , the Commissioner remains concerned about reports of severe deficits in other holding facilities . He urges the authorities to secure dignified standards of living for all detained asylum seekers , to ensure that detention is the exception and be limited to certain purposes and to the shortest possible time . ... Further he urges the authorities to ensure the prompt provision of information to asylum - seekers in a language they understand , including the reasons of their arrest and detention , [ and ] to provide for prompt judicial review of detention ... \u201d","The relevant paragraphs of ORG ( ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ) concerning the conditions of detention of foreign nationals , as well as of a report on ORG issued by ORG on DATE , may be found in the case of NORP v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) .","In DATE ORG visited , inter alia , ORG and published a report on DATE entitled ' Stuck in a Revolving Door ' . The relevant extracts from the report read as follows :","\u201c ... ORG spent DATE visiting the ORG detention facility . The access we were given to the facility was particularly remarkable given the absolutely dreadful conditions we found there . On DATE we visited , DATE , the detainee population was CARDINAL . The capacity of the facility is CARDINAL . By our second visit , CARDINAL people had been released , including , as it turned out , nearly everyone who spoke LANGUAGE and LANGUAGE , the languages of our interpreters . Nevertheless , we were permitted to interview anyone we chose in a completely private setting in a courtyard outside a building holding most of the detainees .","The ORG facility at PERSON is comprised of CARDINAL buildings , each divided into CARDINAL rooms . The smaller of the CARDINAL buildings holds in CARDINAL room women and children and in the other men who appear to have prospects of relatively quick identification and cooperation from their home consulates to effect their removal from GPE . The countries of origin of the men in the small building included GPE , GPE , GPE , GPE , and GPE . The larger building which holds by far the larger number of detainees is divided into a smaller room for men who will be released to GPE because they are members of nationalities that can not be deported , such as NORP and NORP , and the larger room which holds the largest number of men \u2014 CARDINAL on our first visit \u2014 who are held indefinitely pending their relatives providing tickets for their return flights or until they can be deported . Most of the men in the big room appeared to be south NORP from countries like GPE , GPE , GPE , GPE , as well as various NORP nationalities . The authorities also put \u201c NORP , \u201d \u201c NORP , \u201d \u201c NORP , \u201d and \u201c NORP \u201d in the big room when they doubted their declared nationalities .","...","The conditions in the big building , particularly in the bigger of the CARDINAL rooms , are abysmal \u2014 completely unfit for human habitation , even for a short duration . As a place of indefinite detention , the conditions alone are inhuman and degrading .","Words fail to describe the sight and smell of CARDINAL men crammed into a single room . For our own security , we were not allowed to walk into the room , but stood at the only door to the room , a padlocked iron gate , where we peered into the darkness . Though men crowded toward us , they parted their human sea so we could see the jammed crowd all the way to the wall . There was no space between any bodies ; they sat shoulder to shoulder both along the walls and in the room 's interior .","...","The big building looks like an old warehouse . It is dark and fetid . There are only small windows at the ceiling level and these are made of glass so are useless in terms of air circulation and cooling . There is CARDINAL window fan and CARDINAL other fan at the end of the room . Although the larger of the CARDINAL rooms has an exit that leads to the courtyard that could theoretically be used to provide fresh air and exercise , in fact , except for those interviewed by ORG , none of the detainees had ever been allowed into the yard . The smaller of the CARDINAL rooms does n't even have a door that leads to the yard .","...","The strongest first impressions of PERSON are the overcrowding , the desperation , the stench and the grime . ... \u201d"],"violated_articles":["13","3","5"],"violated_paragraphs":["5-1","5-4"],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-102965","languageisocode":"ENG","respondent":"GBR","branch":"CHAMBER","date":2011,"docname":"CASE OF MGN LIMITED v. THE UNITED KINGDOM","importance":2,"conclusion":"No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved","judges":"David Th\u00f3r Bj\u00f6rgvinsson;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Phillips of Worth Matravers;Rupert Jackson;Vincent A. De Gaetano","text":["The applicant is the publisher of a national DATE newspaper in the GPE known as ORG ( formerly known as the ORG ) . It is represented before the ORG by Mr PERSON of GPE , a solicitor practising in GPE .","NORP The relevant publications","On DATE the \u201c ORG \u201d newspaper carried on the front page an article headed \u201c PERSON : I am a drug addict \u201d , placed CARDINAL colour photographs of PERSON , a well - known model . The first photograph , slightly indistinct , showed her dressed in a baseball cap and had a caption : \u201c Therapy : PERSON outside meeting \u201d . The second showed her glamorously partially covered by a string of beads .","The article read as follows :","\u201c Supermodel PERSON is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs .","The DATE old has been a regular at counselling sessions for DATE , often attending twice a day .","Dressed in jeans and baseball cap , she arrived at CARDINAL of ORG 's lunchtime meetings DATE . TIME at a different venue she made a low - key entrance to a women - only gathering of recovered addicts .","Despite her MONEY fortune PERSON is treated as just another addict trying to put her life back together . A source close to her said TIME : ' She wants to clean up her life for good . She went into modelling when she was very young and it is easy to be led astray . Drink and drugs are unfortunately widely available in the fashion world . But PERSON has realised she has a problem and has bravely vowed to do something about it . Everyone wishes her well . '","Her spokeswoman at ORG declined to comment . \u201d","The story continued inside the newspaper with a longer article across CARDINAL pages . This article was headed \u201c PERSON 's finally trying to beat the demons that have been haunting her \u201d and the opening paragraphs read :","\u201c She 's just another face in the crowd , but the gleaming smile is unmistakeably PERSON . In our picture , the catwalk queen emerges from a gruelling TIME session at ORG and gives a friend a loving hug .","This is CARDINAL of the world 's most beautiful women facing up to her drink and drugs addiction - and clearly winning .","The GPE - born supermodel has been going to ORG meetings for DATE as she tries to change her wild lifestyle .","Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling ...","To the rest of the group she is simply PERSON , the addict . Not the supermodel . Not the style icon . \u201d","The article made mention of PERSON efforts to rehabilitate herself and that one of her friends had said that she was still fragile but \u201c getting healthy \u201d . The article gave a general description of GPE ( \u201c ORG \u201d ) therapy and referred to some of PERSON recently publicised activities including an occasion when she had been rushed to hospital and had her stomach pumped : while she had claimed it was an allergic reaction to antibiotics and that she had never had a drug problem , the article noted that \u201c those closest to her knew the truth \u201d .","In the middle of the double page spread , between several innocuous pictures of PERSON , was a dominating picture with a caption \u201c Hugs : PERSON , dressed in jeans and baseball hat , arrives for a lunchtime group meeting DATE \u201d . The picture showed her in the street on the doorstep of a building as the central figure in a small group . She was being embraced by CARDINAL people whose faces had been masked on the photograph . Standing on the pavement was a board advertising a certain caf\u00e9 . The photograph had been taken by a free - lance photographer contracted by the newspaper for that job . He took the photographs covertly while concealed some distance away in a parked car .","On DATE PERSON solicitor wrote to the applicant stating that the article was a breach of confidentiality and an invasion of privacy and requesting an undertaking that it would not publish further confidential and\/or private information .","NORP The newspaper responded with further articles .","On DATE the newspaper published an article headed , in large letters , \u201c Pathetic \u201d . Below was a photograph of PERSON over the caption \u201c Help : PERSON leaves GPE meeting DATE after receiving therapy in her battle against illegal drugs \u201d . This photograph was similar to the street scene picture published on DATE . The text of the article was headed \u201c After DATE of self - publicity and illegal drug abuse , PERSON whinges about privacy \u201d . The article mentioned that \u201c the ORG revealed DATE how she is attending DATE meetings of GPE \u201d . Elsewhere in the same edition , an editorial , with the heading \u201c No hiding PERSON , concluded with the words : \u201c If PERSON wants to live like a nun , let her join a nunnery . If she wants the excitement of a show business life , she must accept what comes with it \u201d .","On DATE , the ORG published , under the heading \u201c Fame on you , PERSON \u201d , a further article mocking PERSON threatened proceedings , referring to the years during which she thrust \u201c her failed projects like the nauseating book PERSON and equally appalling record Love and Tears down our throats \u201d , stating that PERSON was not an artist and that she was \u201c about as effective as a chocolate soldier \u201d , implying that her prior campaign against racism in the fashion industry was self - serving publicity and that \u201c the problem is that PERSON does n't actually \u201c stand \u201d for anything . She ca n't sing , ca n't act , ca n't dance , and ca n't write . \u201d","B. The substantive proceedings","High Court ( [ DATE ] CARDINAL ( QB ) )","PERSON claimed damages for breach of confidence and compensation under LAW DATE . A claim for aggravated damages was made mainly as regards the article of DATE . On DATE the High Court ( Morland J. ) upheld PERSON claim , following a hearing of DATE .","He described PERSON as an \u201c internationally renowned fashion model and celebrity \u201d . The first issue was whether there had been a breach of confidence and , in that respect , PERSON was required to prove CARDINAL elements .","The first was that the details divulged by the article about her attendance at ORG meetings had the necessary quality of confidence about them . Information to the effect that her treatment was regular attendance at ORG meetings was clearly confidential : the details were obtained surreptitiously , assisted by covert photography when she was engaged ( deliberately \u201c low key and drably dressed \u201d ) in the private activity of therapy to advance her recovery from drug addiction . Giving details of her therapy , including her regular attendance at ORG , was easily identifiable as private and disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities . There existed a private interest worthy of protection .","Secondly , it was found that those details were imparted in circumstances importing an obligation of confidence given the sources of the information ( either a fellow sufferer of drug addiction or one of her staff ) .","Thirdly , and having heard evidence on the subject , she had demonstrated that the publication was to her detriment and , notably , the publication of her treatment with ORG specifically had caused her significant distress and was likely adversely to affect her attendance \/ participation in therapy meetings .","The High Court considered these findings to be in conformity with the judgment of ORG in PERSON ( [ DATE ] QB CARDINAL \u00a7 CARDINAL ) which had held that there was no watertight division between the concepts of privacy and confidentiality and that the approach to the tort had to be informed by the jurisprudence of LAW . Citing PERSON v. GPE ( DATE , Series A no . CARDINAL ) it noted that LAW jurisprudence acknowledged different degrees of privacy : the more intimate the aspect of private life which was being interfered with , the more serious the justification required .","ORG adopted the approach of Lord PERSON in A v B plc ( [ DATE ] QB CARDINAL , see paragraph CARDINAL below ) as regards , inter alia , the qualification of the right to freedom of expression by the right to respect for private life guaranteed by LAW .","The High Court considered at some length the extent to which PERSON had exposed herself and her private life to the media and , in light of this , how to reconcile the demands of ORG CARDINAL and CARDINAL . ORG considered that the applicant had been fully entitled to publish in the public interest the facts of her drug addiction and treatment as PERSON had previously misled the public by denying drug use . \u201c She might have been thought of and indeed she herself seemed to be a self - appointed role model to young black women \u201d . However , ORG had to protect a celebrity from publication of information about her private life which had \u201c the mark and badge of confidentiality \u201d and which she had chosen not to put in the public domain unless , despite that breach of confidentiality and the private nature of the information , publication was justifiable . The balance of LAW rights involved in the present case clearly called for a remedy for PERSON as regards the publication of the private material .","The High Court heard evidence from , inter alia , PERSON as to the impact on her of the publication . It concluded :","\u201c Although I am satisfied that Miss PERSON has established that she has suffered a significant amount of distress and injury to feelings caused specifically by the unjustified revelation of the details of her therapy with GPE , apart from that distress and injury to feelings she also suffered a significant degree of distress and injury to feelings caused by the entirely legitimate publication by the defendants of her drug addiction and the fact of therapy about which she can not complain . In determining the extent of distress and injury to feelings for which she is entitled to compensation , I must consider her evidence with caution . She has shown herself to be over DATE lacking in frankness and veracity with the media and manipulative and selective in what she has chosen to reveal about herself . I am satisfied that she lied on oath [ about certain facts ] . Nevertheless I am satisfied that she genuinely suffered distress and injury to feelings caused by the unjustified publication and disclosure of details of her therapy in the CARDINAL articles of DATE and CARDINALth DATE complained of . I assess damages or compensation in the sum of \u00a3 CARDINAL . \u201d","As to her claim for aggravated damages ( mainly the article of DATE ) , ORG found that a newspaper faced with litigation was entitled to argue that a claim against it should never have been made and that any complaint should have been made to ORG . Such assertions could even be written in strong and colourful language and it was not for the courts to censor bad taste . However , since the article also \u201c trashed her as a person \u201d in a highly offensive and hurtful manner , this entitled her to aggravated damages in the sum of GBP CARDINAL .","On DATE ORG ( Lord PERSON of Worth Matravers MR , PERSON and PERSON ) unanimously allowed the newspaper 's appeal . The hearing had lasted DATE .","ORG noted that PERSON was an \u201c internationally famous fashion model \u201d who had courted , rather than shunned , publicity in part to promote other ventures in which she was involved . In interviews with the media she had volunteered information about some aspects of her private life and behaviour including limited details about her relationships . She had gone out of her way to aver that , in contrast to many models , she did not take drugs , stimulants or tranquillisers , but this was untrue .","As to the impact of LAW DATE ( \u201c HRA \u201d ) on the law of confidentiality , the court observed that it had to balance the rights guaranteed by LAW , noting that freedom of the media was a bastion of any NORP society .","As to whether the information disclosed was confidential , ORG did not consider that the information that PERSON was receiving therapy from ORG was to be equated with disclosure of clinical details of medical treatment . Since it was legitimate to publish the fact that she was a drug addict receiving treatment , it was not particularly significant to add that the treatment consisted of ORG meetings which disclosure would not be offensive to a reasonable reader of ordinary sensibilities . While a reader might have found it offensive that obviously covert photographs had been taken of her , that , of itself , had not been relied upon as a ground of complaint . In addition , it was not easy to separate the distress PERSON must have felt at being identified as a drug addict in treatment accompanied by covert photographs from any additional distress resulting from disclosure of her attendance at ORG meetings . In short , it was not obvious that the peripheral disclosure of PERSON attendance at ORG meetings was of sufficient significance as to justify the intervention of the court .","Relying on PERSON and PERSON v. GPE ( [ ORG ] , no . CARDINAL , \u00a7 DATE , ORG CARDINALI ) , ORG considered that the photographs were a legitimate , if not an essential , part of the journalistic package designed to demonstrate that PERSON had been deceiving the public when she said that she did not take drugs and , provided that publication of particular confidential information was justifiable in the public interest , the journalist had to be given reasonable latitude as to the manner in which that information was conveyed to the public or his LAW right to freedom of expression would be unnecessarily inhibited . The publication of the photographs added little to PERSON case : they illustrated and drew attention to the information that she was receiving therapy from ORG .","Following a hearing of DATE , on CARDINAL May CARDINAL ORG allowed PERSON appeal ( Lord Hope of PERSON , ORG of GPE and Lord PERSON formed the majority , Lords PERSON of GPE and PERSON dissenting ) and restored the orders made by ORG . They delivered separate and extensive judgments .","Lord Hope began by noting the powerful international reputation of PERSON in the business of fashion modelling , which business was conducted under the constant gaze of the media . He also noted her \u201c status as a celebrity \u201d . He considered that the issues were essentially questions of \u201c fact and degree \u201d which did not raise any \u201c new issues of principle \u201d . In the present case , where the publication concerned a drug addict requiring treatment and , given the fact that disclosure of details concerning that treatment together with publication of a covertly taken photograph could endanger that treatment , the disclosure was of private information .","The case gave rise to a competition between the rights of free speech and privacy which were of equal value in a democratic society . In balancing these rights , Lord Hope noted that the right to privacy , which lay at the heart of an action for breach of confidence , had to be balanced against the right of the media to impart information to the public and that the latter right had , in turn , to be balanced against the respect that must be given to private life . There was nothing new about this in domestic law .","He examined in detail the latitude to be accorded to journalists in deciding whether or not to publish information to ensure credibility . He noted the principles set out in this respect in this ORG 's case law ( Observer and ORG v. GPE , DATE , \u00a7 DATE , Series A no . CARDINAL ; GPE v. GPE , DATE , \u00a7 DATE , Series A no . CARDINAL and PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , \u00a7 DATE , ORG CARDINALI ) .","Having examined the balancing exercise in the NORP and PERSON cases , Lord PERSON reiterated there was no doubt that the choices made about the presentation of material that was legitimate to convey to the public was pre - eminently an editorial matter with which the court would not interfere . However , choices to publish private material raised issues that were not simply about presentation and editing . Accordingly , the public interest in disclosure had to be balanced against the right of the individual to respect for their private life : those decisions were open to review by the court . The tests to be applied were familiar and were set down in Convention jurisprudence . The rights guaranteed by ORG CARDINAL and CARDINAL had to be balanced against each other , any restriction of those rights had to be subjected to very close scrutiny and neither LAW had any pre - eminence over each other ( as confirmed by LAW of ORG of ORG ( \u201c PACE \u201d ) , DATE ) .","As to the LAW involved , the essential question was whether the means chosen to limit LAW rights were \u201c rational , fair and not arbitrary and impair the right as minimally as is reasonably possible \u201d . In this respect , the relevant factors were , on the one hand , the duty on the press to impart information and ideas of public interest which the public has a right to receive ( NORP v. GPE , cited above ) and the need to leave it to journalists to decide what material had to be reproduced to ensure credibility ( PERSON and PERSON v. GPE cited above ) and , on the other hand , the degree of privacy to which PERSON was entitled as regards the details of her therapy under the law of confidence . However , the right of the public to receive information about the details of her treatment was of a much lower order than its undoubted right to know that she was misleading the public when she said that she did not take drugs since the former concerned an intimate aspect of her private life ( PERSON v. GPE , DATE , \u00a7 DATE , Series A no . CARDINAL ) . While he acknowledged the great importance of political expression and , indeed , of freedom of expression ( constituting one of the essential foundations of a NORP society and one of the basic conditions for its progress and the self - fulfilment of each individual , Tammer v. GPE , no . PERSON , \u00a7 CARDINAL , ORG CARDINALI ) , he considered that no political or democratic values were at stake and no pressing social had been identified ( a contrario , PERSON v. the GPE , DATE , \u00a7 DATE , Reports DATE II ) .","As to the competing LAW , the potential for harm by the disclosure was an important factor in the assessment of the extent of the restriction that was needed to protect PERSON right to privacy . From the point of DATE , publication of details of her treatment ( that she was attending ORG , for how long , how frequently and at what times of DATE , the nature of her therapy , the extent of her commitment to the process and the publication of covertly taken photographs ) had the potential to cause harm to her and Lord Hope attached a good deal of weight to this factor . The fact that she was a \u201c celebrity \u201d was not enough to deprive her of her right to privacy . A margin of appreciation had be accorded to a journalist but viewing details of treatment for drug addiction merely \u201c as background was to undervalue the importance that was to be attached to the need , if PERSON was to be protected , to keep these details private \u201d . It was hard to see any compelling need for the public to know the name of the organisation that she was attending for therapy or the details of that therapy . The decision to publish these details suggested that greater weight was given to the wish to publish a story that would attract interest rather than any wish to maintain its credibility .","Lord Hope then considered the covert photographs . It was true that , had he to consider the text of the articles only , he would have been \u201c inclined to regard the balance between these rights as about even \u201d , such was the effect of the margin of appreciation that had to be , in a doubtful case , given to a journalist . However , the text could not be separated from the photographs as the captions clearly linked what might otherwise have been anonymous and uninformative pictures to the main text . In addition , the reasonable person of ordinary sensibilities would regard publication of the covertly taken photographs , linked in that way to the text , as adding greatly to the overall intrusion into PERSON private life .","While photographs taken in a public place had to be considered , in normal circumstances , one of the \u201c ordinary incidents of living in a free community \u201d , the real issue was whether publicising the photographs was offensive in the present circumstances . He reviewed the case - law of the ORG ( including ORG and GPE v. GPE , no . CARDINAL\/CARDINAL , \u00a7 DATE ORG and PERSON GPE , no . CARDINAL , \u00a7 DATE , ORG DATE I ) and applied the reasoning in the PERSON case . PERSON could not have complained if the photographs had been taken to show a scene in a street by a passer - by and later published simply as street scenes . However , the photographs invaded PERSON privacy because they were taken deliberately , in secret , with a view to their publication in conjunction with the article and they focussed on the doorway of the building of her ORG meeting and they revealed clearly her face . The argument that the publication of the photograph added credibility to the story had little weight , since the reader only had the editor 's word as to the truth of PERSON attendance at a ORG meeting . He continued :","\u201c CARDINAL . Any person in Miss PERSON 's position , assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction , would have known what they were and would have been distressed on seeing the photographs . She would have seen their publication , in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy , as a gross interference with her right to respect for her private life . In my opinion this additional element in the publication is more than enough to outweigh the right to freedom of expression which the defendants are asserting in this case . \u201d","Lord Hope therefore concluded that , despite the weight that had to be given to the right to freedom of expression that the press needs if it is to play its role effectively , there was an infringement of PERSON privacy which could not be justified .","Baroness PERSON observed that the examination of an action for breach of confidence began from the \u201c reasonable expectation of privacy \u201d test inquiring whether the person publishing the information knew or ought to have known that there was a reasonable expectation that the relevant information would be kept confidential . This was a threshold test which brought the balancing exercise between the rights guaranteed by ORG CARDINAL and CARDINAL of the Convention into play . Relying also on the PACE Resolution CARDINAL ( DATE ) , she noted that neither right took precedence over the other . The application of the proportionality test , included in the structure of ORG CARDINAL , was much less straightforward when CARDINAL Convention rights were in play and , in this respect , she relied on the above - cited cases of GPE v GPE , PERSON and PERSON v GPE and ORG .","In striking the balance in this case , she noted :","\u201c CARDINAL . ... Put crudely , it is a prima donna celebrity against a celebrity - exploiting tabloid newspaper . Each in their time has profited from the other . Both are assumed to be grown - ups who know the score . On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful . On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures , and to expose their weaknesses , lies , evasions and hypocrisies . This sort of story , especially if it has photographs attached , is just the sort of thing that fills , sells and enhances the reputation of the newspaper which gets it first . CARDINAL reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all . It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country . It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances , so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression . \u201d","However , ORG considered it not to be a trivial case and defined the particularly private nature of the information the publication of which PERSON contested . It concerned the important issue of drug abuse and , consequently , her physical and mental health . She underlined the importance of , as well as the sensitivities and difficulties surrounding , treatment for addiction and , notably , of the vital therapy to address an underlying dependence on drugs . Moreover , the ORG 's jurisprudence had always accepted that information about a person 's health and treatment for ill - health was both private and confidential ( Z v. GPE , DATE , \u00a7 CARDINAL , Reports CARDINALI ) . While the disclosed information may not have been in the same category as clinical medical records , it amounted to the same information which would be recorded by a doctor in such records namely , the presenting problem of addiction to illegal drugs , the diagnosis and the prescription of therapy . ORG therefore began her analysis from the fact - which was common ground - that all information about PERSON addiction and attendance at ORG disclosed in the article was both private and confidential because it related to an important aspect of her physical and mental health and the treatment she was receiving for it . It had also been received from an insider in breach of confidence .","As to the nature of the freedom of expression being asserted on the other side , ORG recalled the main forms of expression which she recorded in descending order of importance : political speech ( which included revealing information about public figures , especially those in elective office , which would otherwise be private but was relevant to their participation in public life ) , intellectual and educational expression as well as artistic expression . However , ORG found it difficult to see the contribution made by \u201c pouring over the intimate details of a fashion model 's private life \u201d . It was true that the editor had chosen to run a sympathetic piece , listing PERSON faults and follies and setting them in the context of her addiction and her even more important efforts to overcome addiction and such publications might well have a beneficial educational effect . However , such pieces were normally run with the co - operation of those involved and PERSON had refused to be involved with the story . The editor , nevertheless , considered that he was entitled to reveal this private information without her consent because PERSON had presented herself to the public as someone who was not involved in drugs . ORG questioned why , if a role model presented a stance on drugs beneficial to society , it was so necessary to reveal that she had \u201c feet of clay \u201d . However , she accepted that the possession and use of illegal drugs was a criminal offence and was a matter of serious public concern so that the press had to be free to expose the truth and put the record straight .","However , while PERSON previous public denial of drug use might have justified publication of the fact of her drug use and of her treatment for drug addiction , it was not necessary to publish any further information , especially if it might jeopardise her continued treatment . That further information amounted to the disclosure of details of her treatment with ORG and ORG considered that the articles thereby \u201c contributed to the sense of betrayal by someone close to her of which she spoke and which destroyed the value of [ ORG ] as a safe haven for her \u201d .","Moreover , publishing the photographs contributed both to the revelation and to the harm that it might do . By themselves , the photographs were not objectionable . If the case concerned a photograph of PERSON going about her business in a public street , there could have been no complaint . However , the accompanying text made it plain that these photographs were different in that they showed PERSON outside a ORG meeting in the company of some persons undoubtedly part of the ORG group and they showed the place where the meeting took place , which would have been entirely recognisable to anyone who knew the locality . Photographs by their very nature added to the impact of the words in the articles as well as to the information disclosed . The photographs also added to the potential harm \u201c by making her think that she was being followed or betrayed , and deterring her from going back to the same place again \u201d .","NORP Moreover , there was no need for the photographs to be included in the articles for the editor to achieve his objective . The editor had accepted that , even without the photographs , it would have been a front page story . He had his basic information and he had his quotes . He could have used other photographs of PERSON to illustrate the articles . While the photographs would have been useful in proving the truth of the story had this been challenged , there was no need to publish them for this purpose as the credibility of the story with the public would stand or fall with the credibility of stories of ORG generally . ORG added , in this context , that whether the articles were sympathetic or not was not relevant since the way an editor \u201c chose to present the information he was entitled to reveal was entirely a matter for him \u201d .","Finally , it was true that the weight to attach to these various considerations was \u201c a matter of fact and degree \u201d . Not every statement about a person 's health would carry the badge of confidentiality : that a public figure had a cold would not cause any harm and private health information could be relevant to the capacity of a public figure to do the job . However , in the present case the health information was not harmless and , indeed , as the trial judge had found , there was a risk that publication would do harm :","\u201c ... People trying to recover from drug addiction need considerable dedication and commitment , along with constant reinforcement from those around them . That is why organisations like [ ORG ] were set up and why they can do so much good . Blundering in when matters are acknowledged to be at a ' fragile ' stage may do great harm .","The trial judge was well placed to assess these matters . ... he was best placed to judge whether the additional information and the photographs had added significantly both to the distress and the potential harm . He accepted her evidence that it had done so . He could also tell how serious an interference with press freedom it would have been to publish the essential parts of the story without the additional material and how difficult a decision this would have been for an editor who had been told that it was a medical matter and that it would be morally wrong to publish it . \u201d","Lord PERSON agreed with Lord Hope and ORG . It was not in dispute that the information was of a private nature and imparted in confidence to the applicant and that the applicant was justified in publishing the facts of PERSON drug addiction and that she was receiving treatment given her prior public lies about her drug use . He also agreed with Lord Hope as to the balancing of Articles CARDINAL and CARDINAL rights and , further , that in order to justify limiting the Article CARDINAL right to freedom of expression , the restrictions imposed had to be rational , fair and not arbitrary , and they must impair the right no more than necessary .","Having examined the weight to be attributed to different relevant factors , he concluded that the publication of the details of PERSON attendance at therapy by ORG , highlighted by the photographs printed which revealed where the treatment had taken place , constituted a considerable intrusion into her private affairs which was capable of causing and , on her evidence , did in fact cause her , substantial distress . In her evidence , she said that she had not gone back to the particular ORG centre and that she had only attended a few other ORG meetings in the GPE . It was thus clear , that the publication created a risk of causing a significant setback to her recovery .","He did not minimise the \u201c the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way , without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction \u201d , which factors were \u201c part of the legitimate function of a free press \u201d and had to be given proper weight . However , the balance came down in favour of PERSON .","Lord PERSON began by noting that PERSON was \u201c a celebrated fashion model \u201d , that she was a \u201c household name , nationally and internationally \u201d and that her face was \u201c instantly recognisable \u201d . He noted that the development of the common law ( tort of breach of confidence ) had been in harmony with Articles DATE and CARDINAL of the Convention so that the time had come to recognise that the values enshrined in DATE were now part of the cause of action for breach of confidence ( Lord PERSON , A v B plc [ DATE ] CARDINAL , CARDINAL , \u00a7 CARDINAL ) .","He found that the reference to treatment at ORG meetings was not private information as it did no more than spell out and apply to Ms ORG common knowledge of how ORG meetings were conducted .","However , even if PERSON attendance at meetings was considered private , her appeal was still ill - founded since :","\u201c On the one hand , publication of this information in the unusual circumstances of this case represents , at most , an intrusion into Miss PERSON 's private life to a comparatively minor degree . On the other hand , non - publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction . This information was published in order to demonstrate Miss PERSON 's commitment to tackling her drug problem . The balance ought not to be held at a point which would preclude , in this case , a degree of journalistic latitude in respect of information published for this purpose .","It is at this point I respectfully consider [ that ORG ] fell into error . Having held that the details of Miss PERSON 's attendance at [ ORG ] had the necessary quality of confidentiality , the judge seems to have put nothing into the scales under article CARDINAL when striking the balance between articles CARDINAL and DATE . This was a misdirection . The need to be free to disseminate information regarding Miss PERSON 's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information . The degree of latitude reasonably to be accorded to journalists is correspondingly reduced , but it is not excluded altogether . \u201d","He observed that PERSON repeated public assertions denying her drug addiction rendered legitimate the publication of the facts that she was a drug addict and in treatment had been legitimate . The additional impugned element that she was attending ORG meetings as a form of therapy was of such an unremarkable and consequential nature that its disclosure had also been legitimate . The same applied to information concerning how long PERSON was receiving such treatment given that the frequency and nature of ORG meetings was common knowledge . Hence , the intrusion into PERSON private life was comparatively minor .","Lastly , and as to the photographs , Lord PERSON observed that she did not complain about the taking of the photographs nor assert that the taking of the photographs was itself an invasion of privacy , rather that the information conveyed by the photographs was private . However , the particular photographs added nothing of an essentially private nature : they conveyed no private information beyond that discussed in the article and there was nothing undignified about her appearance in them .","Lord PERSON began his judgment by describing PERSON as \u201c a public figure \u201d and , further , a famous fashion model who had lived by publicity . He noted that the judges of ORG were \u201c divided as to the outcome of this appeal \u201d but the difference of opinion related to \u201c a very narrow point \u201d concerning the unusual facts of the case . While it was accepted that the publication of the facts of her addiction and of her treatment was justified as there was sufficient public interest given her previous public denials of drug use , the division of opinion concerned \u201c whether in doing so the newspaper went too far in publishing associated facts about her private life \u201d . He continued :","\u201c But the importance of this case lies in the statements of general principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression , on which the ORG is unanimous . The principles are expressed in varying language but speaking for myself I can see no significant differences . \u201d","There being no automatic priority between ORG CARDINAL , the question to be addressed was the extent to which it was necessary to qualify one right in order to protect the underlying value protected by the other and the extent of the qualification should be proportionate to the need . The only point of principle arising was , where the essential part of the publication was justified , should the newspaper be held liable whenever the judge considered that it was not necessary to have published some of the personal information or should the newspaper be allowed some margin of choice in the way it chose to present the story ( referring to PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALI ) .","In this respect , Lord PERSON considered that it would be :","\u201c inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary . The practical exigencies of journalism demand that some latitude must be given . Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure . And if any margin is to be allowed , it seems to me strange to hold the ORG liable in damages for a decision which CARDINAL experienced judges in ORG have held to be perfectly justified . \u201d","Given the relatively anodyne nature of the additional details , the ORG was entitled to a degree of latitude in respect of the way it chose to present its legitimate story .","As to the publication of photographs in particular , Lord PERSON observed that the fact that the pictures were taken without PERSON consent did not amount to a wrongful invasion of privacy . Moreover , the pictures did not reveal a situation of humiliation or severe embarrassment ( as in PERSON v. the GPE , no . CARDINAL , ORG CARDINALI ) and had not been taken by intrusion into a private place . There was nothing demeaning or embarrassing about the photographs . They added nothing to what was said in the text and carried the message that the ORG 's story was true . Accordingly , the decision to publish the pictures was within the margin of editorial judgment to which the ORG was entitled . Although the trial judge found that the publication was likely to affect her therapy , this had neither been pleaded before nor fully explored by the trial judge .","The appeal was allowed , ORG award was restored . PERSON costs ( of the appeals to ORG and to ORG ) were awarded against the applicant , the amount to \u201c be certified by ORG , if not agreed between the parties ... \u201d .","C. The proceedings concerning legal costs","Ms ORG 's solicitors served CARDINAL bills of costs on the applicant in the total sum of ORG CARDINAL , CARDINAL : GBP CARDINAL,CARDINAL.CARDINAL for ORG ; GBP ORG ; and GBP CARDINAL,CARDINAL.CARDINAL for ORG . The latter figure comprised \u201c base costs \u201d of GBP CARDINAL , success fees of GBP CARDINAL,CARDINAL.CARDINAL as well as GBP CARDINAL disbursements . In the High Court and ORG , PERSON solicitors and counsel had acted under an ordinary retainer . But the appeal to ORG was conducted pursuant to LAW ( \u201c CFA \u201d ) which provided that , if the appeal succeeded , solicitors and counsel should be entitled to base costs as well as success fees amounting to PERCENT and PERCENT of their base costs , respectively .","ORG v. ORG [ DATE ] ORG CARDINAL","On DATE the applicant appealed to ORG seeking a ruling that it should not be liable to pay the success fees as , in the circumstances , such a liability was so disproportionate as to infringe their right to freedom of expression under LAW . The applicant did not seek thereby a declaration of incompatibility but argued that domestic law regulating the recoverability of success fees should be read so as to safeguard its rights under LAW . On DATE this appeal was heard by ORG .","On DATE PERSON solicitors accepted the applicant 's offers to pay GBP CARDINAL ( ORG costs ) and ORG ( ORG costs ) , both amounts being exclusive of interest .","On DATE the appeal was unanimously dismissed . ORG found that the existing ORG regime with recoverable success fees was compatible with the Convention , but they expressed some reservations about the impact of disproportionate costs .","Lord PERSON observed that the deliberate policy of ORG ( \u201c the DATE LAW ) was to impose the cost of all ORG litigation upon unsuccessful defendants as a class . Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases , which might not be successful , but which would provide access to justice for people who could not otherwise have afforded to sue . Therefore , the policy shifted the burden of funding from the ORG to unsuccessful defendants , which was a rational social and economic policy .","While he was concerned about the indirect effect of the threat of a heavy costs liability on the newspapers ' decisions to publish information which ought to be published but which carried a risk of legal action , he considered that a newspaper 's right could be restricted to protect the right of litigants under LAW to access to a court .","The applicant maintained that recoverable success fees were disproportionate on the basis of CARDINAL flawed arguments . The first was that the success fee was necessarily disproportionate as it was more than ( and up to twice as much as ) the amount which , under the ordinary assessment rules , would be considered reasonable and proportionate . This was a flawed point as it confused CARDINAL different concepts of proportionality . The ORG on costs were concerned with whether expenditure on litigation was proportionate to the amount at stake , the interests of the parties , complexity of the issues and so forth . However , LAW was concerned with whether a rule , which required unsuccessful defendants , not only to pay the reasonable and proportionate costs of their adversary in the litigation , but also to contribute to the funding of other litigation through the payment of success fees , was a proportionate measure , having regard to the effect on LAW . The applicant did not \u201c really deny that in principle it is open to the legislature to choose to fund access to justice in this way . \u201d","The second argument of the applicant was to the effect that it was unnecessary to give PERSON access to a court because she could have afforded to fund her own costs . However , it was desirable to have a general rule to enable the scheme to work in a practical and effective way and that concentration on the individual case and the particularities of PERSON circumstances would undermine that scheme . It was for this reason that the ORG in GPE and Others v GPE ( DATE , Series A no . CARDINAL ) considered that ORG was entitled to pursue a social policy of allowing long leaseholders of low - rated houses to acquire their freeholds at concessionary rates , notwithstanding that the scheme also applied to some rich tenants who needed no such assistance . The success fee should not be disallowed simply on the ground that the applicant 's liability would be inconsistent with its rights under LAW . Thus , notwithstanding the need to examine the balance on the facts of the individual case , Lord PERSON considered that the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled ORG to lay down a general rule that CFAs were open to everyone . ORG fees , as such , could not be disallowed simply on the ground that the present applicant 's liability would be inconsistent with its rights under LAW : the scheme was a choice open to the legislature and there was no need for any exclusion of cases such as the present one from the scope of CFAs or to disallow success fees because the existing scheme was compatible .","NORP However , Lord PERSON did not wish to leave the case without commenting on other problems which defamation litigation under CFAs was currently causing and which had given rise to concern that freedom of expression might be seriously inhibited . The judgment of PERSON in ORG ( [ DATE ] EWHC CARDINAL ) highlighted the significant temptation for media defendants to settle cases early for purely commercial reasons , and without regard to the true merits of any pleaded defence . This ' chilling effect ' or ' ransom factor ' inherent in the CFA system was a situation which could not have arisen in the past and was very much a modern development .","Lord PERSON considered that the \u201c blackmailing effect \u201d of such litigation arose from CARDINAL factors : ( a ) the use of CFAs by impecunious claimants who did not take out insurance to protect themselves from having to pay the winning party 's costs if they lost ; and ( b ) the conduct of the case by the claimant 's solicitors in a way which not only ran up substantial costs but required the defendants to do so as well . Referring to a recent case where this was particularly evident ( ORG [ Practice Note ] [ DATE ] CARDINAL WLR CARDINAL ) , he continued :","\u201c Faced with a free - spending claimant 's solicitor and being at risk not only as to liability but also as to twice the claimant 's costs , the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant 's own costs were equally high \u201d","Lord PERSON endorsed the solution offered by ORG in the King case ( a \u201c cost - capping \u201d order at an early stage of the action ) . However , that was only a palliative as it did not deal with the problem of a newspaper risking substantial and irrecoverable costs . Smaller publishers might not be able to afford to take a stand and neither capping costs at an early stage nor assessing them later dealt with the threat of having to pay the claimant 's costs at a level which was , by definition , up to twice the amount which would be reasonable and proportionate . While the DCA Consultation Paper ( paragraph CARDINAL below ) discussed the problem , no legislative intervention had been proposed .","Lord PERSON distinguished between personal injury litigation and defamation proceedings . Personal injury litigation comprised a large number of small claims and the liability insurers were able to pass these costs on to their road user customers with their own solvency not being threatened and the liability insurers had considerable negotiating strength to dispute assessments of costs and to hold up the cash flow of the claimants ' solicitors so that both sides therefore had good reasons for seeking a compromise . On the other hand , in defamation cases the reasons for seeking a compromise were much weaker : there was a small number of claims and payment of relatively large sums of costs ; some publishers might be strong enough to absorb or insure against this but it had a serious effect upon their financial position ; and publishers did not have the same negotiating strength as the liability insurers because there were few assessments to be contested and disputing them involved considerable additional costs .","DATE . While the objective of enabling people of modest means to protect their reputations and privacy from powerful publishers was a good one , Lord PERSON considered that it might be that a legislative solution would be needed for the scheme to comply with LAW .","Lord Hope agreed with Lord PERSON .","He underlined the protection to the losing party contained in the ORG and ORG . Reasonableness and proportionality tests were applied separately to base costs and to the percentage uplift for success fees . However , the most relevant question for a court in assessing the reasonableness of the percentage uplift was \u201c the risk that the client might or might not be successful \u201d ( paragraph CARDINAL.CARDINAL(l)(a ) of ORG ) and that \u201c in evenly balanced cases a success fee of MONEY might well be thought not to be unreasonable \u201d .","There remained the question of proportionality . Other than providing that the proportionality of base costs and success fees were to be separately assessed , ORG did not identify any factors that might be relevant . However , it would be wrong to conclude that this was an empty exercise as it was the \u201c ultimate controlling factor \u201d to ensure access to the court by a claimant to argue that her right to privacy under LAW was properly balanced against the losing party 's rights to freedom of speech under LAW . While the losing party would pay the success fee , any reduction in the percentage increase would have to borne by the successful party under the CFA : the interests of both sides had to be weighed up in deciding whether the amount was proportionate .","Lord PERSON agreed with the opinions of Lord PERSON and Lord Hope . While \u201c there are many who regard the imbalance in the system adopted in GPE and GPE as most unjust \u201d , the regimen of CFAs and recoverable success fees was \u201c legislative policy which the courts must accept \u201d . As to whether recoverable success fees , which undoubtedly constituted a \u201c chill factor \u201d , were compatible with LAW and a proportionate way of dealing with the issue of the funding of such litigation , it was not really in dispute that the legislature could in principle adopt this method of funding access to justice .","The present case turned on whether it was still proportionate when the claimant was wealthy and not in need of the support of a ORG . While it was rough justice , the requirement on solicitors to means test clients before concluding a ORG was unworkable . With some regret , the conclusion was clear . While Lord PERSON was \u201c far from convinced about the wisdom or justice of the CFA system \u201d as it was then constituted , \u201c it had to be accepted as legislative policy \u201d . It had not been shown to be incompatible with the LAW and the objections advanced by the applicant could not be sustained .","Lord PERSON agreed with the preceding opinions . ORG also agreed with Lord PERSON . It was , for her , a separate question whether a legislative solution might be needed to comply with LAW this was a complex issue involving a delicate balance between competing rights upon which she preferred to express no opinion .","From the date of rejection of this second appeal , the applicant was liable to pay PERCENT interest on the costs payable .","DATE . On DATE an order for the costs of the second appeal to ORG was made against the applicant . PERSON therefore served an additional bill of costs of ORG . The bill included a success fee of PERCENT ( GBP CARDINAL,CARDINAL.CARDINAL ) in respect of the solicitors ' base costs , her counsel having not entered into a ORG for this appeal .","ORG Review by the Judicial Taxing Officers of the costs of the second appeal to ORG","The applicant then sought to challenge the proportionality of the costs and success fees claimed in respect of both appeals to ORG . An assessment hearing was fixed for DATE before the Judicial Taxing Officers of ORG .","On DATE the applicant agreed with PERSON solicitors to pay the sum of GBP CARDINAL in respect of the costs claimed in relation to the first appeal , excluding interest and including the success fee applicable to the first appeal . The applicant considered it was unlikely to do better before ORG , it wished to avoid accruing interest ( PERCENT per day ) and further litigation on costs would lead to further costs and success fees .","The hearing on DATE ( before CARDINAL ORG ) therefore concerned the costs of the second appeal only , the Taxing Officers noting that the applicant had settled the costs of the first appeal , it \u201c no doubt recognising the inevitability of the position \u201d . A number of preliminary issues were decided by ORG including the validity of the ORG , the applicable success fee rate and the proportionality of the base costs billed by PERSON representatives ( and on which that success fee would be calculated ) .","By judgment dated DATE the ORG found that , in these hard fought proceedings ultimately decided by a split decision of ORG , there was \u201c no doubt \u201d that the success fees ( PERCENT and PERCENT ) claimed in respect of the first appeal to ORG were appropriate having regard to the first and second instance proceedings . Since the second appeal to ORG was part and parcel of the first and was clearly contemplated by the parties when they entered into the ORG , the second appeal was covered by the ORG and thus the same success fee . The effect of this was , of course , that the applicant faced a greatly increased bill of costs : however , the applicant lost this issue in the second appeal to ORG . A success fee of PERCENT for the second appeal to ORG was therefore approved . Relying on Rules CARDINAL and CARDINAL of the ORG as well as paragraph CARDINAL of ORG as well as a necessity test , ORG reduced the TIME rates chargeable by PERSON solicitors and counsel , thereby reducing the base costs and , consequently , the success fee payable by the applicant .","On DATE the applicant appealed to ORG arguing that the Taxing Officers judgment was incorrect in so far as those Officers considered that the success fee for the second appeal could not be varied . On DATE ORG refused leave to appeal .","On DATE the applicant agreed to pay GBP CARDINAL ( inclusive of interest and assessment procedure costs ) in settlement of PERSON costs of the second appeal .","A. Breach of confidence \/ misuse of private information","LAW DATE ( \u201c the ORG \u201d )","Section CARDINAL(CARDINAL ) of the ORG provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account , inter alia , any judgment , decision , declaration or advisory opinion of ORG .","Section CARDINAL ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right . A public authority includes a court ( section CARDINAL(CARDINAL)(a ) of the ORG ) .","Section CARDINAL(CARDINAL ) provides that a court must have particular regard to the importance of the Convention right to freedom of expression and , where the proceedings relate to journalistic material , to ( a ) the extent to which the material has , or is about to , become available to the public , or it is , or would be , in the public interest for the material to be published as well as to ( b ) any relevant privacy code .","ORG Code of Practice ( \u201c The PCC Code \u201d )","The ORG Code provided , at the relevant time , as follows :","\u201c CARDINAL . Privacy","i ) Everyone is entitled to respect for his or her private and family life , home , health and correspondence . A publication will be expected to justify intrusions into any individual 's private life without consent .","ii ) The use of long lens photography to take pictures of people in private places without their consent is unacceptable .","Note - Private places are public or private property where there is a reasonable expectation of privacy","...","NORP The public interest includes :","i ) Detecting or exposing crime or a serious misdemeanour .","ii ) Protecting public health and safety .","iii ) Preventing the public from being misled by some statement or action of an individual or organisation . . . . \u201d","Breach of Confidence and LAW","Originally the tort of breach of confidence was characterised by reference to an obligation of confidence which arose whenever a person received information he knew or ought to have known was fairly and reasonably confidential . More recently , the tort developed through the case - law so as to extend to situations where information , properly to be regarded as private information , has been misused . In principle , such a claim arises where private information has been wrongfully published and it is now well - recognised that this form of the tort of breach of confidence encapsulates the values enshrined in both ORG CARDINAL of the Convention . The guiding principle as to what comprises an individual 's private information is whether the individual had a reasonable expectation of privacy as regards the information in issue .","Lord PERSON held as follows , as regards the balancing of the interests protected by Articles CARDINAL and CARDINAL , in his oft - cited judgment in ORG in the case of A v B plc ( [ DATE ] QB CARDINAL ) :","\u201c CARDINAL ...... under section CARDINAL of the DATE [ LAW , the court , as a public authority , is required not to act \u201c in a way which is incompatible with a Convention right \u201d . The court is able to achieve this by absorbing the rights which articles CARDINAL protect into the long - established action for breach of confidence . This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles .","The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen . ...","The manner in which the CARDINAL articles operate is entirely different . DATE as to extend the areas in which an action for breach of confidence can provide protection for privacy . It requires a generous approach to the situations in which privacy is to be protected . LAW operates in the opposite direction . This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence . There is a tension between the CARDINAL articles which requires the court to hold the balance between the conflicting interests they are designed to protect . This is not an easy task but it can be achieved by the courts if , when holding the balance , they attach proper weight to the important rights both articles are designed to protect . Each article is qualified expressly in a way which allows the interests under the other article to be taken into account . ...","CARDINAL ) ... Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society . This is the position irrespective of whether a particular publication is desirable in the public interest . The existence of a free press is in itself desirable and so any interference with it has to be justified . ...","( x ) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified . ...","( xii ) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances . A public figure is entitled to a private life . The individual , however , should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media . Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media . Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure . The public figure may hold a position where higher standards of conduct can be rightly expected by the public . The public figure may be a role model whose conduct could well be emulated by others . He may set the fashion . The higher the profile of the individual concerned the more likely that this will be the position . Whether you have courted publicity or not you may be a legitimate subject of public attention . If you have courted public attention then you have less ground to object to the intrusion which follows . In many of these situations it would be overstating the position to say that there is a public interest in the information being published . It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information . If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls . The courts must not ignore the fact that if newspapers do not publish information which the public are interested in , there will be fewer newspapers published , which will not be in the public interest . The same is true in relation to other parts of the media . On the difficult issue of finding the right balance , useful guidance of a general nature is provided by ORG DATE .","( xiii ) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste . This is the task of others . \u201d","B. Costs , conditional fee arrangements ( \u201c CFA \u201d ) and success fees","A successful party to litigation may only recover costs if and to the extent that a ORG so orders and such questions are to be determined in accordance with ORG DATE ( \u201c LAW \u201d ) . The PERSON referred to below are applicable to proceedings before ORG . The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ( Rule CARDINAL ) of the ORG ) .","Prior to DATE , the only means of funding litigation ( apart from legal aid ) was to agree an ordinary retainer with a lawyer . CFAs were introduced for a limited range of litigation by LAW of ORG DATE ( \u201c the DATE LAW ) . A ORG is an agreement between a client and a legal representative which provides for his fees and expenses , or any part of them , to be payable only in specified circumstances ( for example , if successful ) . Further secondary legislation was necessary to allow CFAs to be adopted . LAW DATE not only brought into force CFAs but it extended the range of proceedings for which CFAs could be concluded , that range being further extended to cover all litigation apart from criminal and family proceedings by LAW . This position was relatively unchanged by ORG ( \u201c the DATE LAW ) .","A ORG , even as initially introduced , could make provision for the payment of a percentage uplift in fees ( \u201c success fees \u201d ) . A success fee provided that the amount of any fees to which it applied ( base costs ) could be increased by a percentage in specified circumstances ( for example , if successful ) . Section CARDINAL(CARDINAL ) of the DATE LAW provides that a success fee must , inter alia , state the percentage by which the amount of the fees is to be increased and LAW specified the maximum percentage uplift to be PERCENT .","The CARDINAL Act then inserted section ORG into LAW . This provided that an order for costs made by a court could include the success fees payable under a ORG , so that the base costs , as well as the success fees , could be recovered against an unsuccessful party . LAW also made ATE ( after the event ) Insurance premiums recoverable against a losing party .","The ORG regulate the making of costs orders and the assessment of such costs including success fees ( Rule CARDINAL.CARDINAL(CARDINAL)(a ) of the ORG ) .","Rule CARDINAL.CARDINAL(CARDINAL)-(CARDINAL ) sets out the general rules which govern the court 's discretion to make an order for costs against a party .","Rule PERSON of the ORG provides that , at the conclusion of the proceedings to which the ORG relates , the court may make a summary assessment or order a detailed assessment of all or part of the costs ( including success fees ) .","Rule CARDINAL.CARDINAL(CARDINAL ) provides that , where the amount of costs is to be assessed on the standard basis , the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have , as to whether costs were reasonably incurred or reasonable and proportionate in amount , in favour of the paying party .","Rule PERSON provides that the court must have regard to all circumstances in deciding whether costs , assessed on a standard basis , were proportionately and reasonably incurred or were proportionate and reasonable in amount . Such circumstances must include the conduct of all the parties , the amount or value of any money or property involved ; the importance of the matter to all the parties ; the particular complexity of the matter or the difficulty or novelty of the questions raised ; the skill , effort , specialised knowledge and responsibility involved ; the time spent on the case ; and the place where and the circumstances in which work or any part of it was done .","Costs Practice Directions supplement the ORG .","Paragraph CARDINAL of the Direction provides that in deciding , on a standard basis of assessment , whether the costs are reasonable and proportionate , the court will consider the amount of any additional liability ( including success fees ) separately from the base costs .","Paragraph CARDINAL requires the ORG to take into account , when deciding whether the percentage uplift by which the success fee is calculated is reasonable , all relevant factors and it provides examples of such factors : the circumstances in which the costs would be payable might or might not occur ( including whether the case would win ) ; the legal representative 's liability for any disbursements ; and any other methods of financing the costs available to the receiving party .","Paragraph CARDINAL.CARDINAL provides as follows :","\u201c A percentage increase will not be reduced simply on the ground that , when added to the base costs which are reasonable and ( where relevant ) proportionate , the total appears disproportionate . \u201d","A party to litigation who instructs lawyers pursuant to a ORG may , but is under no obligation to , take out ATE Insurance .","Paragraph CARDINAL of LAW in ORG ( adopted in DATE ) provides that notification is to be given to the opposing parties and to ORG as soon as practicable after a ORG has been entered into , and that ORG decide questions of percentage uplift in accordance with the principles set out in the above - cited case of ORG .","This case was the first assessment of costs for an appeal to ORG involving CFAs . The appellant had been successful at first instance , had lost ( unanimously ) in ORG and its appeal was allowed ( unanimously ) in ORG . On DATE ORG held :","\u201c CARDINAL . With regard to the solicitors ' claim a success fee of PERCENT is sought . [ Counsel for the Appellant ] produced to us the opinion of ORG prior to the CFA being entered into which put the chances of success at no more than evens . That opinion was given against a background in which the appellant company had been successful at first instance and lost in ORG . It is quite clear that the issues were finely balanced . It is generally accepted that if the chances of success are no better than PERCENT the success fee should be PERCENT .","The thinking behind this is that if a solicitor were to take CARDINAL identical cases with a PERCENT chance of success in each it is likely that one would be lost and the other won . Accordingly the success fee ( of PERCENT ) in the winning case would enable the solicitor to bear the loss of running the other case and losing .","There is an argument for saying that in any case which reached trial a success fee of PERCENT is easily justified because both sides presumably believed that they had an arguable and winnable case . In this case we have no doubt at all that the matter was finely balanced and that the appropriate success fee is therefore PERCENT \u201d .","PERSON noted as follows :","\u201c CARDINAL . The claimant ... seeks a large award of damages , including aggravated and exemplary damages , against the proprietors of ORG .... He is able to pursue his claim purely because [ his legal representative ] has been prepared to act on his behalf on the basis of a [ CFA ] . This means , of course , that significant costs can be run up for the defendant without any prospect of recovery if they are successful , since one of the matters on which [ the legal representative ] does apparently have instructions is that his client is without funds . On the other hand , if the defendant is unsuccessful it may be ordered to pay , quite apart from any damages , the costs of the claimant 's solicitors including a substantial mark - up in respect of a success fee . The defendant 's position is thus wholly unenviable .","Faced with these circumstances , there must be a significant temptation for media defendants to pay up something , to be rid of litigation for purely commercial reasons , and without regard to the true merits of any pleaded defence . This is the so - called \u201c chilling effect \u201d or \u201c ransom factor \u201d inherent in the conditional fee system , which was discussed by ORG in [ ORG [ Practice Note ] [ DATE ] CARDINAL WLR CARDINAL ] . This is a situation which could not have arisen in the past and is very much a modern development . \u201d","This claimant was without financial means and had no ATE insurance . PERSON noted the significant pre - action costs incurred by the claimant 's solicitors which required , in turn , costs to be incurred by the defendant who also risked paying double the claimants ' already significant costs . He continued :","\u201c What is in issue in this case , however , is the appropriateness of arrangements whereby a defendant publisher will be required to pay up to twice the reasonable and proportionate costs of the claimant if he loses or concedes liability , and will almost certainly have to bear his own costs ( estimated in this case to be MONEY ) if he wins . The obvious unfairness of such a system is bound to have the chilling effect on a newspaper exercising its right to freedom of expression ... and to lead to the danger of self - imposed restraints on publication which he so much feared ....","It is not for this court to thwart the wish of ORG that litigants should be able to bring actions to vindicate their reputations under a ORG , and that they should not be obliged to obtain ATE cover before they do so . ... On the other hand , we are obliged to read and give effect to relevant primary and secondary legislation so far as possible in a way that is compatible with a publisher 's LAW rights ....","In my judgment the only way to square the circle is to say that when making any costs capping order the court should prescribe a total amount of recoverable costs which will be inclusive , so far as a ORG - funded party is concerned , of any additional liability . It can not be just to submit defendants in these cases , where their right to freedom of expression is at stake , to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win .","If this means , ... , that it will not be open to a ORG - assisted claimant to receive the benefit of an advocate instructed at anything more than a modest fee or to receive the help of a litigation partner in a very expensive firm who is not willing to curtail his fees , then his \/ her fate will be no different from that of a conventional legally aided litigant in modern times . It is rare DATE for such a litigant to be able to secure the services of leading counsel unless the size of the likely award of compensation justifies such an outlay , and defamation litigation does not open the door to awards on that scale DATE . Similarly , if the introduction of this novel cost - capping regime means that a claimant 's lawyers may be reluctant to accept instructions on a ORG basis unless they assess the chances of success as significantly greater than evens ( so that the size of the success fee will be to that extent reduced ) , this in my judgment will be a small price to pay in contrast to the price that is potentially to be paid if the present state of affairs is allowed to continue . \u201d","In DATE a Consultation Paper entitled \u201c Simplifying CFAs \u201d was completed by ORG ( \u201c ORG \u201d , whose powers were transferred to ORG in DATE ) . The use of CFAs in defamation proceedings emerged as a controversial issue during this consultation . Several national and regional media organisations took the opportunity to raise a number of concerns about the impact of the use of CFAs in defamation proceedings . Media organisations claimed that CFAs inhibited the right to freedom of expression and encouraged unmeritorious claims . Claimants ' lawyers felt that the use of CFAs in defamation proceedings had greatly widened access to justice and placed claimants on an equal footing with their opponents .","NORP In the DATE Consultation Paper \u201c Making Simple CFAs a reality \u201d of the ORG , media organisations reiterated the view that CFAs needed to be controlled in defamation proceedings . They stressed that funding these cases by CFAs ( particularly where the claimant had significant personal wealth ) impinged on the media 's right to freedom of expression because the success fee could effectively double a claimant lawyer 's cost . This resulted in the \u201c ransom \u201d or \u201c chilling effect \u201d that forced the media to settle claims they might otherwise fight due to excessive costs . The media also expressed concerns there was no true ATE insurance market ( because the very small number of cases did not ensure a competitive market ) , and about the failure of the costs judges to effectively control CFA costs in defamation proceedings . While the focus of the Consultation Paper had been defamation proceedings , the same problems applied in other publication cases .","The DATE Paper also noted that claimants ' lawyers , on the other hand , believed that CFAs provided access to justice for all in an area of law where many would otherwise not be able to afford to seek redress . They also made the point that CFAs played an important role in discouraging irresponsible journalism . The sharp decline in the number of claims issued in this area , after the introduction of CFAs in defamation proceedings , indicated that lawyers were being more cautious when advising clients who were considering litigation . They believed that CFAs should not be banned or restricted in this area of law , but that success fees should be PERCENT for cases going to trial and less for cases that settled early .","The ORG concluded that legislation to restrict the use of success fees in this area ( publication proceedings ) was not planned . The ORG supported the initiative launched by ORG ( \u201c CJC \u201d ) to mediate a general agreement on success fees in this area of law and considered that the existing powers of the courts were sufficient to control costs .","The above - cited judgment in King and the DATE consultation prompted media organisations and claimants ' lawyer groups to try to reach an agreement on the way forward . Following the ORG round table hosted by the ORG in DATE , both sides approached the ORG to mediate .","NORP In DATE a previous Lord Chancellor spoke about CFAs and costs at a media society event . He called for proper control and proportionality in the costs - risks attached to publication litigation and urged claimant and media lawyers to try to find a solution through discussion .","In DATE ORG considered the role of CFAs in defamation and privacy proceedings as part of its inquiry on the \u201c Compensation Culture \u201d . It felt that courts could address disproportionate costs through appropriate cost control measures such as cost - capping and that it might be appropriate for lawyers to re - assess risk ( and therefore the amount of uplift ) as the case progressed ( staged success fees ) . No concrete action was taken .","DATE the ORG hosted a number of forums including representatives from the media , legal profession and insurance . This mediation , having been suspended pending the second appeal in the present case to ORG , concluded with the production of a model agreement ( \u201c LOC \u201d ) which set out a range of solutions including a range of staged success fees .","The Ministry of ORG agreed with the ORG 's recommendations that LOC model agreement was workable and could help ensure that costs of litigation were proportionate and reasonable . ORG decided to consult on the issue . Through its Consultation Paper of DATE entitled \u201c Conditional fee agreements in defamation proceedings : ORG and After the Event Insurance \u201d , ORG sought views on the implementation of the ORG 's recommendations in publication proceedings and , notably , on a range of fixed staged recoverable success fees and on the recoverability of ATE insurance premiums . A slightly revised scheme was published with responses to the consultation in DATE . Some responses to the consultation supported in principle the introduction of fixed recoverable staged success fees and ATE insurance premiums ; however , there was no consensus on the details of the scheme . The media in particular did not support the scheme and strongly opposed its implementation and called for additional measures to address disproportionate and unreasonable costs in ORG cases . The scheme was not implemented .","On DATE ORG published further a ORG on \u201c Controlling costs in defamation proceedings \u201d . The high levels of legal costs in defamation and some other publication related proceedings had been the subject of criticism and debate in the courts and ORG . \u201c Excessive costs may force defendants to settle unmeritorious claims , which in turn threatens a more risk averse approach to reporting and some argue is a risk to freedom of expression \u201d . While the ORG had previously consulted on proposals for a scheme of staged recoverable success fees and after the event insurance ( ATE ) premiums in publication proceedings to reduce unreasonable and disproportionate costs , a number of media organisations suggested additional measures that they considered necessary if costs in this area were to be maintained at reasonable levels . The Consultation Paper therefore sought views on measures to better control costs notably through limiting recoverable TIME rates ; costs - capping ; and requiring the proportionality of total costs to be considered on costs assessments conducted by the court .","As regards the question ( no CARDINAL ) of whether the courts should apply the proportionality test to total costs not just base costs , the Consultation Paper noted that the Government considered that \u201c a requirement to consider the proportionality of total costs would be a helpful tool in controlling costs in defamation proceedings \u201d . They would request ORG to consider amendments to the ORG and to the related practice direction .","As to the scope of the proposals , the Consultation Paper assumed that as a minimum the provisions would be introduced for defamation disputes ( libel and slander ) because it was principally in these cases that the key problems were seen to arise . However , the Paper added that there were other causes of action ( such as breach of privacy ) where \u201c it may be considered they should also apply \u201d .","The Consultation Paper with the responses and proposals received was published on DATE . ORG , requested to consider a number of measures to control costs in publication proceedings , proposed draft rules concerning , inter alia , additional information and control of ATE insurance . ORG DATE came into force on DATE . The ORG preferred to leave other matters open pending ORG .","In DATE PERSON was appointed to conduct a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost .","NORP In DATE ORG was published , running to CARDINAL pages plus appendices . In relation to CFAs , it noted that GPE and GPE differed from all other jurisdictions in having success fees payable not by the lawyer 's own client but by the losing party . The benefits of CFAs had been achieved at massive cost especially in cases which were fully contested . That cost was borne by tax payers , insurance premium payers and by those defendants who had the misfortune of being neither insured nor a large , well - resourced organisation .","While PERSON concluded that CFAs were not objectionable in themselves , he considered that there were CARDINAL flaws in allowing success fees to be recovered from the losing party :","\u201c CARDINAL The recoverability regime does not possess either of the CARDINAL crucial features of the legal aid regime which it replaces . In my view these omissions are CARDINAL of its flaws . The third flaw is that the burden placed upon opposing parties is simply too great . The fourth flaw is that it presents an opportunity for some lawyers to make excessive profits . The consequence of these CARDINAL flaws is to generate disproportionate costs .","( a ) First flaw","CARDINAL Any person , whether rich or poor and whether human or corporate , is entitled to enter into a ORG and take out ATE insurance . All that such a person needs to do is to find willing solicitors and willing insurers . This gives rise to anomalies and unintended consequences on a grand scale . I will give CARDINAL examples in DATE paragraphs .","CARDINAL The tree root claims . It is , in my view , absurd that insurance companies can bring claims against local authorities using CFAs ... thereby doubling the costs burden upon council tax payers . The insurance companies can well afford to fund such litigation themselves and should do so .","CARDINAL Commercial claims . It is also , in my view , absurd that CARDINAL party to commercial litigation can become a \u201c super - claimant \u201d ... and thereby transfer most of the costs burden to the other party . CARDINAL arguments have been pressed upon me by defenders of recoverability in such cases : first , that recoverability enables [ small and medium enterprises ( \u201c SMEs \u201d ) ] to take on larger companies ; secondly that the opposing party can avoid the crushing costs burden by settling early . As to the first argument , the recoverability provisions are of universal application . They are just as likely to be used by a large company against an SME as vice versa . As to the second argument ... some business disputes are evenly balanced . It is perfectly reasonable for the companies on both sides to decide to fight . It is quite wrong for CARDINAL or other party to be pressurised into settling by a gross imbalance in the costs liabilities of the parties . If party A has a CFA ... and party B does not , party A may be litigating at virtually no costs risk , whereas party B may face liability for quadruple costs if it loses .","CARDINAL Consumer dispute . County court litigation sometimes involves disputes between suppliers of goods and customers or consumers . Where such litigation is above the level of the small claims track , it is not unknown for the supplier to have a ORG and for the individual on the other side not to have a ORG . It all depends upon the terms which each party manages to agree with its own solicitors . In some cases the recoverability regime will give the consumer a \u201c free ride \u201d against the supplier . In other cases it will have precisely the opposite effect . It is perfectly possible for the recoverability regime to give the supplier a free ride and to expose the consumer to a massively increased costs liability .","CARDINAL first flaw in the recoverability regime is that it is unfocused . There is no eligibility test for entering into a ORG , provided that a willing solicitor can be found .","( b ) Second flaw","CARDINAL The second flaw is that the party with a ORG generally has no interest in the level of costs being incurred in his or her name . Whether the case is won or lost , the client will usually pay nothing . If the case is lost , the solicitors waive their costs and pay the disbursements , in so far as not covered by ATE insurance . If the case is won , the lawyers will recover whatever they can from the other side either ( a ) by detailed or summary assessment or ( b ) by negotiation based upon the likely outcome of such an assessment .","CARDINAL.CARDINAL This circumstance means that the client exerts no control ( or , in the case of a no win , low fee agreement , little control ) over costs when they are being incurred . The entire burden falls upon the judge who assesses costs retrospectively at the end of the case , when it is too late to \u201c control \u201d what is spent .","( c ) Third flaw","CARDINAL third flaw in the recoverability regime is that the costs burden placed upon opposing parties is excessive and sometimes amounts to a denial of justice . If CARDINAL takes any large block of cases conducted on CFAs , the opposing parties will end up paying more than the total costs of both parties in every case , regardless of the outcome of any particular case .","CARDINAL If the opposing party contests a case to trial ( possibly quite reasonably ) and then loses , its costs liability becomes grossly disproportionate . Indeed the costs consequences of the recoverability rules can be so extreme as to drive opposing parties to settle at an early stage , despite having good prospects of a successful defence . This effect is sometimes described as \u201c blackmail \u201d , even though the claimant is using the recoverability rules in a perfectly lawful way .","( d ) Fourth flaw","CARDINAL If claimant solicitors and counsel are successful in only picking \u201c winners \u201d , they will substantially enlarge their earnings ... As the Senior Costs Judge explained ... it is not possible for costs judges effectively to control success fees retrospectively .","CARDINAL Of course , not all lawyers are good at picking winners and some suffer losses on that account . Nevertheless , CARDINAL repeated criticism of the recoverability regime which I have heard throughout ORG , is that some claimant lawyers \u201c cherry pick \u201d . In other words they generally conduct winning cases on CFAs , they reject or drop at an early stage less promising cases and thus generate extremely healthy profits . Obviously the financial records of individual solicitors firms and barristers are confidential . Moreover , even if CARDINAL such set of accounts were made public , that would tell us nothing about all the others . Nevertheless , the CARDINAL point that can be made about the ORG regime is that it presents the opportunity to cherry pick . If lawyers succumb to that temptation , they will greatly increase their own earnings and they will do so in a manner which is entirely lawful .","CARDINAL Having worked in the legal profession for DATE , I have a high regard for my fellow lawyers , both solicitors and counsel . The fact remains , however , that lawyers are human . As Professor PERSON has forcefully pointed out both during ORG and during the present Costs Review , work tends to follow the most remunerative path . In my view , it is a flaw of the recoverability regime that it presents an opportunity to lawyers substantially to increase their earnings by cherry picking . This is a feature which tends to demean the profession in the eyes of the public . \u201d","Specifically in relation to defamation and related claims , ORG considered that the present system was \u201c the most bizarre and expensive system that it is possible to devise \u201d for the following CARDINAL reasons :","\u201c ( i ) Defendants pay a heavy price in order to ensure ( a ) that claimants within the ORG regime are protected against adverse costs liability and ( b ) that defendants can still recover costs if they win .","( ii ) Despite paying out large ATE insurance premiums in cases which they lose , the defendants ' costs recovery in cases which they win may be only partial . This is because the defendants ' costs recovery will be subject to the policy limits agreed by claimants in those cases .","( iii ) The present regime of recoverable ATE insurance premiums is indiscriminating . A wealthy celebrity suing a hard pressed regional newspaper publisher is fully entitled to take out ATE insurance , effectively at the expense of the defendant . The present regime provides protection against adverse costs , but it is in no way targeted upon those claimants who need such protection . \u201d","As to defamation and related proceedings , ORG noted that a principal concern that had been expressed in relation to the costs of defamation proceedings and privacy cases was the widespread use of CFAs with ATE insurance , which could impose a disproportionate costs burden on defendants . He had recommended , for all civil litigation , a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party ( the CARDINAL Act position ) : those arrangements had not suffered from the above flaws but opened up access to justice for many individuals who formerly had no such access .","If that recommendation were to be adopted , ORG considered that it should go a substantial distance to ensuring that unsuccessful defendants in such proceedings were not faced with a disproportionate costs liability . However , such a measure could also reduce access to justice for claimants of slender means . To overcome this latter potential problem , he recommended complementary measures for defamation and related proceedings including increasing the general level of damages in defamation and breach of privacy proceedings by PERCENT and introducing a regime of qualified CARDINAL way costs shifting , under which the amount of costs that an unsuccessful claimant may be ordered to pay was a reasonable amount , reflective of the means of the parties and their conduct in the proceedings .","NORP In its introduction , the ORG noted :","\u201c Throughout our inquiry we have been mindful of the over - arching concerns about the costs of mounting and defending libel actions , and the ' chilling effect ' this may have on press freedom . The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively . We find the suggestion that the problem confronting defendants , including media defendants , who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one . If a defendant is in the right , he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost .","All the evidence which we have received points to the fact that the vast majority of cases brought under LAW ( CFA ) are won . We therefore see no justification for lawyers to continue to demand PERCENT success fees which are chargeable to the losing party . We recommend that the recovery of success fees from the losing party should be limited to PERCENT , leaving the balance to be agreed between solicitor and client . We further recommend that the ORG should make After the Event Insurance premiums irrecoverable . \u201d","As regards , in particular , costs in defamation litigation , it commented :","\u201c CARDINAL . We are aware that machinery exists for defendants to protect their position as to costs by making a payment into court . It does not appear to us that this machinery effectively protects a defendant , who genuinely attempts to settle a claim at an early stage , against a determined and deep - pocketed litigant . This is another issue which needs to be addressed by ORG . ...","Although some have suggested that CFAs should be means - tested , in practice , given the high costs involved , this would be likely to result in access to justice being limited to the extremely poor and the super rich . The complexities involved also do not lend themselves to a simple or proportionate solution . We therefore do not support the introduction of means - testing CFAs . ...","In the matter of success fees , the argument is made that they need to be high to compensate for the risks run by lawyers .... This view is not , however , supported by the data available on the outcomes of cases of this kind . This data suggests that ORG - funded parties win the vast majority of their cases . ...","This high success rate is no doubt in part the fruit of careful selection . Indeed common sense and the economic incentives would point to the inevitability of cherry - picking . ...","All the evidence we have heard leads us to conclude that costs in ORG cases are too high . We also believe that ORG cases are rarely lost , thereby undermining the reasons for the introduction of the present scheme . However it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved . We do not agree with ORG that the maximum level of success fees should be capped at PERCENT , nor do we believe that success fees should become wholly irrecoverable from the losing party . However we would support the recoverability of such fees from the losing party being limited to PERCENT of costs leaving the balance to be agreed between solicitor and client . This would address the key issue and seems to us to provide a reasonable balance , protecting access to justice , adequately compensating solicitors for the risks taken , giving claimants and their lawyers , in particular , a strong incentive to control costs and ensuring that costs to a losing party are proportionate . ...","... Just as the press must be accountable for what it writes , lawyers must be accountable for the way in which cases are run , and that includes costs . The current costs system , especially the operation of CFAs , offers little incentive for either lawyers or their clients to control costs , rather the contrary . It also leads to claims being settled where they lack merit . We hope that the combined effect of our recommendations , ORG consultations and the conclusions of Lord Justice PERSON , will provide the impetus for a fairer and more balanced approach to costs in publication proceedings . \u201d","In DATE ORG launched a further public consultation with the above - noted Paper . It considered only the option of reducing the maximum uplift in defamation cases to PERCENT pending consideration of the other recommendations of ORG ( the reference here to defamation including other publication cases ) . The executive summary of the Consultation Paper reads as follows :","\u201c The ORG has for some time been concerned about the impact of high legal costs in defamation proceedings , particularly the impact of PERCENT success fees , which can double the costs to unsuccessful defendants in cases funded under conditional fee agreements ( CFAs ) .","CFAs have increased access to justice for claimants in making it more possible to bring cases . However , the experience over DATE suggests that - in defamation proceedings in particular - the balance has swung too far in favour of the interests of claimants , and against the interests of defendants . The current arrangements appear to permit lawyers acting under a ORG to charge a success fee that is out of proportion to the risks involved . Aside from the cost burden this places on the opposing side , this could encourage weaker and more speculative claims to be pursued .","The Government does not believe that the present maximum success fee in defamation proceedings is justifiable in the public interest . This is particularly the case because the evidence shows that many more defamation claims win than would substantiate such a generous success fee . This view is supported by Sir PERSON 's report ...","This consultation paper seeks views on a proposal to reduce the maximum success fee which lawyers can currently charge from PERCENT of the base costs . This is an interim measure for dealing with disproportionate costs while the Government considers Sir PERSON 's wider proposals which seek to radically change the existing arrangements for all cases where CFAs are used . The proposal in this consultation paper would help reduce the costs for media defendants further and limit the potential harmful effect very high legal costs appear to have on the publication decisions of the media and others .","This proposed change is intended to complement changes already introduced on DATE in respect of defamation proceedings which were designed to control the costs of individual cases . \u201d","ORG Paper of DATE included the responses and its conclusions . It concluded as follows :","\u201c CARDINAL . The ORG has had particular concerns about the high costs in defamation cases . Defamation is a discrete area where we have already taken a number of steps to help control costs . Defamation proceedings are now part of a mandatory costs budgeting pilot , with ORG scrutinising costs as cases progress .","Lord Justice PERSON in his report ... recommends the abolition of recoverability of success fees and after the event ( ATE ) insurance premiums across civil litigation . Sir PERSON 's report is substantial with recommendations that are far reaching with potentially widespread impact on many areas . However , it sets out a clear case for CFA reform . Even those respondents who did not support our proposal of reducing defamation success fees to PERCENT agree that the status quo can not be permitted to continue . The main flaw identified by Sir PERSON of the current regime is the costs burden placed upon the opposing side . He also points out that the ORG regime was working satisfactorily before recoverability of success fees and ATE was introduced DATE an assertion that is made by a large number of respondents to the consultation .","Previous attempts to control the success fees have proved unfruitful . For example during DATE the ORG published a consultation paper , ORG fee agreements in defamation proceedings : ORG and After ORG , on a scheme of fixed recoverable staged success fees and ATE insurance premiums . However , there was no consensus on the details of the scheme and it could not be implemented . No new evidence was provided to Sir PERSON against his recommendation on abolishing recoverability of success fees and ATE .","We carefully considered all the responses . CARDINAL ( PERCENT ) of those who responded agreed with our proposal to reduce the defamation success fees to PERCENT . The Government also considered the report from ORG on press freedom libel and privacy published on DATE . Although the ORG did not agree with our proposal it recommends that the recoverability of success fees should be capped to PERCENT .","The Government is actively assessing the implications of Sir PERSON 's proposals and will also consider the ORG 's report and recommendations including those on costs . However , in the meantime we are minded to implement the proposal to reduce the maximum success fee in defamation cases to PERCENT immediately as an interim measure .","We have therefore DATE laid LAW before ORG with a view to having the maximum success fee of Controlling Costs in Defamation Proceedings Summary of responses PERCENT in defamation cases in force as soon as possible subject to Parliamentary approval .","In light of the comments received , the Order has been amended to make clear that the new requirements will only apply to CFAs entered into after the date on which the Order comes into force . Defamation proceedings for the purpose of the Order means publication proceedings ( within the meaning of rule CARDINAL of the [ CPR ] ) which includes defamation , malicious falsehood or breach of confidence involving publication to the public at large . \u201d","The Conditional Fee Agreements ( Amendment ) Order was therefore laid before ORG . However , that proposal was not maintained during the run - up to the general election in DATE ."],"violated_articles":["10"],"violated_paragraphs":["10-1"],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":["10-1"],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-61361","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2003,"docname":"CASE OF GIDEL v. POLAND","importance":4,"conclusion":"Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed","judges":"Nicolas Bratza","text":["The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .","The applicant runs a car repair shop in GPE . On DATE he sued a certain PERSON and ORG before ORG ( S\u0105d Rejonowy ) , seeking payment for the repair of ORG \u2019s car . On DATE the statement of claim was served on ORG who , at that time , lived in GPE .","The first hearing was set down for DATE but was later adjourned because the presiding judge was ill . The court held hearings on CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and on DATE .","Subsequently , the defendant challenged the impartiality of all the judges of ORG . On DATE ORG PERSON ) dismissed his challenge , finding that it lacked any basis and that the relevant statutory requirements for the disqualification of the judges were not satisfied . His further appeal was dismissed by ORG ( S\u0105d Apelacyjny ) on DATE .","On DATE , DATE and on CARDINAL DATE the applicant sent letters to the court asking for a hearing date to be fixed as soon as possible .","On DATE the court ordered an expert to prepare a report . However , the expert failed to comply with the court \u2019s order . On DATE the court ordered yet another expert to prepare a report within DATE . It was submitted to the court on DATE .","On DATE the applicant again asked the court to fix a date for a hearing .","On DATE the court held a hearing .","At the hearing held on DATE the court ordered that the claim against ORG be examined separately . The next hearing , scheduled for CARDINAL DATE , was cancelled as there was no courtroom available .","On DATE PERSON challenged the impartiality of the presiding judge . On DATE a panel of CARDINAL judges , sitting as ORG , dismissed the defendant \u2019s challenge , ruling that it was totally unsubstantiated . The court also imposed a fine on him , holding that the challenge had been made in bad faith . His further appeal was dismissed by ORG on DATE .","On DATE the ORG gave an interlocutory judgment . It dismissed the applicant \u2019s claim against ORG on the ground that its liability had not been established .","Meanwhile , the defendant had informed the trial court that he had moved to GPE . This resulted in FAC no longer having territorial jurisdiction over the case . On an unknown date the applicant was asked to indicate in which court he wished to pursue his claim : ORG or ORG . The applicant failed to do so . On DATE , of the court \u2019s own motion , the case was referred to the FAC .","On DATE the applicant sent a letter to the President of ORG . He complained about the slow conduct of the proceedings . On DATE , in reply to his complaints , the President observed that the proceedings were indeed lengthy and gave his assurance that he would supervise their conduct .","At the hearing held on DATE the ORG gave judgment . On DATE the applicant appealed . On DATE ORG rejected the appeal , as the applicant had failed to pay the required court fee within the statutory time - limit . On DATE the ORG quashed this decision and allowed the applicant \u2019s appeal of CARDINAL DATE .","The proceedings are pending before ORG ."],"violated_articles":["6"],"violated_paragraphs":["6-1"],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":true}
{"itemid":"001-107446","languageisocode":"ENG","respondent":"POL","branch":"CHAMBER","date":2011,"docname":"CASE OF SEMIK-ORZECH v. POLAND","importance":4,"conclusion":"No violation of Art. 10","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano","text":["The applicant was born in DATE and lives in GPE .","On DATE a hearing in a criminal case concerning a largescale fraud and generating considerable media interest was held before FAC . Advocate PERSON , representing CARDINAL accused ( DATE ) submitted to the court a power of attorney authorising another advocate , Ms GPE who also represented LANGUAGE , to replace him for the purposes of representing his other CARDINAL clients . The court accepted that document without any comment .","During the same hearing a heated exchange broke out between lawyers representing various defendants as to the possibility of a conflict of interest between various clients of lawyers involved in the case , including between ORG CARDINAL clients PERSON and GPE on the one hand and A.M.D. , represented by advocate GPE , on the other . During that exchange advocate PERSON declared that he would not represent A.M.D. any longer .","The court expressed the view that it was too early at that stage of the proceedings to determine whether there was any conflict of interest between the accused which would have prevented the same lawyers from representing them . The courts admonished the lawyers several times for allowing the debate to get out of hand and for their inappropriate conduct in the courtroom .","On DATE informed his clients PERSON and GPE on the phone that he would not be able to attend the hearing scheduled for DATE . He referred to the authorisation he had given to Ms GPE on DATE to replace him for the purposes of that hearing . He also informed PERSON accordingly .","On DATE the court held the hearing . Advocate PERSON was absent . Advocate PERSON informed the court that he had informed her that he had authorised her to replace him for the purposes of that hearing and referred to the authorisation submitted to the case file at the hearing of DATE .","Subsequently , the court declared , having regard to the testimony given by LANGUAGE at the previous hearing , that there was a conflict of interest between LOC and LOC and that , accordingly , they could not be represented by the same lawyer .","The court adjourned the hearing having regard to the fact that advocate PERSON was to represent both her client A.M.D. and PERSON on the basis of the authorisation given to her by advocate PERSON on DATE ( see paragraph CARDINAL above ) .","On DATE PERSON , a newspaper published in GPE , published an article written by the applicant and entitled \u201c A Lawyer \u2019s Nonchalance ? \u201d","The applicant alleged that ORG , the advocate representing the accused in a major criminal case pending before FAC , had failed to meet his professional obligations and act diligently by failing to attend the hearing held on DATE .","The relevant part of the text read :","\u201c ( ... ) \u2018 it is the absence of the defence lawyer which is a ORG explained the presiding judge , ORG","Advocate PERSON failed to attend the hearing and did not justify his absence . He only asked another advocate to tell the court that he could not attend the hearing and requested that advocate ( DATE before the hearing ) to replace him . The court could not accept that replacement , because the interests of the defendants represented by ORG and by that advocate were in conflict . The court could not but adjourn the hearing .","Advocate PERSON was well aware of that conflict . Other defence lawyers in that case had drawn his attention to it . It is difficult not to see his absence as disrespect towards the court , the prosecutor ( ... ) , the parties who reside in GPE . He is , after all , supposed to know how to justify an absence before a court .","\u2018 I am baffled by the attitude of the defence lawyer\u2019 said judge ORG","The court informed the local ORG about the lawyer \u2019s conduct . \u201d","After the hearing , advocate ORG first requested the newspaper to publish a rectification , within the meaning of LAW , arguing that the conflict of interest between his clients and the client of PERSON had been officially acknowledged only on DATE . Hence , he could not reasonably have been expected to know that his absence on that date would entail the adjournment of the proceedings . He argued that at the hearing held on DATE there had been an exchange between the lawyers involved in the case as to the possibility of a conflict arising between the various defendants , including between his CARDINAL clients and PERSON , represented by PERSON However , on that date the court had only expressed the view that it was inappropriate to have that argument in the courtroom . No finding in respect of the conflict of interest had been made on that date . In any event , he had stepped down as LOC \u2019s defence lawyer .","NORP The newspaper refused to publish a rectification within the meaning of the DATE LAW . On DATE it merely published the advocate \u2019s letter under the heading \u201c Letters \u201d , accompanied by the applicant \u2019s unfavourable comment , essentially reiterating the allegation of negligence on his part . The applicant wrote that ORG had informed his clients by phone on DATE that he had given PERSON his authorisation to act on his behalf in their defence . It was further stated that his clients had been unaware that he would be absent on DATE . \u201c [ t]his is what they told me \u201d \u2013 the applicant concluded .","Subsequently , the advocate sued the newspaper , the applicant and the editorinchief of PERSON for breach of his personal rights within the meaning of Articles DATE and CARDINAL of LAW ( see paragraph CARDINAL below ) .","At a hearing in that case held on DATE ORG heard as witnesses PERSON and GPE , the claimant \u2019s clients and defendants in the criminal case . PERSON stated that the claimant had known as early as DATE that he would not be able to attend the hearing scheduled for DATE and that he had therefore authorised PERSON to replace him . The criminal judge had accepted that authorisation without objections . A.D. made a similar statement . He added that after the hearing of DATE he had briefly talked with a journalist in the court \u2019s corridor and that he had not told her that he had not been informed about the advocate \u2019s absence prior to that hearing .","The court had regard to the article published by the applicant on DATE and to her comments on the claimant \u2019s letter published on DATE ( see paragraphs CARDINAL above ) , to the correspondence between the claimant and the defendant editor - in - chief , to the minutes of the hearings held on CARDINAL and DATE and to the parties\u2019 statements .","The first - instance judgment was given on DATE . ORG first recounted the exchange of views between the lawyers during the hearing held in the criminal case on DATE as to the possible conflict of interest between their clients . It noted the criminal court \u2019s statement , recorded in TIME of that hearing , that there had been no basis at that time to find that a conflict of interest had indeed existed . It further found that on DATE the lawyer had informed his clients and PERSON on the phone that he would not be able to attend the hearing scheduled for DATE . On DATE the criminal court had made an official declaration , again recorded in the minutes , that a conflict existed between the interests of A.M.D. and PERSON and that they could therefore not be represented by the same lawyer , and adjourned the hearing until DATE .","The civil court noted that in her CARDINAL articles the applicant had accused the claimant of unprofessional conduct . She had made an untrue statement to the effect that the claimant \u2019s clients had not known before the hearing of DATE that the claimant would not attend it . The articles had been widely discussed in local legal circles and had had a negative impact on the claimant \u2019s situation . Some of his clients had lost their trust in him .","The court noted that the evidence before it had demonstrated that the applicant \u2019s allegation that LOC and GPE had been informed of the claimant \u2019s absence only at the hearing of DATE was untrue . The claimant had already known about his absence on DATE . It was shown by the fact that on that date he had authorised another lawyer to act on his behalf in the defence of his clients . They had already been aware of it on that date . The criminal court had accepted this authorisation for Ms GPE to act without comments or objections . On that date no finding had been made by that court that there had been a conflict of interest between the clients represented by the claimant and those represented by Ms GPE In these circumstances , the claimant had had no reason to expect that his absence on DATE would disturb the conduct of the proceedings . Consequently , his non - attendance on DATE could not be seen as unjustified or his conduct regarded as nonchalant or disrespectful .","The court was of the view that the articles concerned had breached the claimant \u2019s personal rights . The applicant had alleged that he had failed to attend the hearing and to justify his absence and that the hearing on DATE had had to be adjourned because of his conduct .","The court noted that under LAW the press enjoyed freedom of expression . That freedom was not absolute ; it could be restricted in certain circumstances . In particular , the press was obliged to respect the rights of other persons . LAW obliged journalists to show diligence and integrity in gathering materials and publishing articles , because press publications could potentially harm individuals in a manner much more powerful than any other means of defamation .","The court was of the view that the applicant should have contacted the claimant before the publication of the article on DATE and ask for his comments . She had failed to do so .","The article published by the applicant had lacked objectivity , contained undeserved criticism of the claimant and had been sensationalist rather than aimed at informing readers about the criminal case in a balanced manner . In particular , its title was particularly sensationalist . The newspaper had a wide readership in the region and therefore the impact of the article on public opinion was likely to have been significant and seriously detrimental to the claimant \u2019s interests . Hence it was necessary to impose on the defendants an obligation to publish an apology and a rectification .","NORP The court further imposed on the defendants an obligation to pay , jointly , MONEY ( ORG ) to a charity . It observed that that amount was significant enough to have an impact on the publisher , but not high enough to be seen as seriously detrimental to his financial position .","The applicant appealed , submitting that she had fulfilled her journalistic duties in reporting the case . Her view that the advocate had failed to act diligently in the representation of his clients had been well - founded and the firstinstance court had wrongly established the facts of the case .","On DATE ORG upheld the contested judgment , essentially sharing the conclusions of the lower court .","It observed that the right to freedom of expression guaranteed both by the LAW and the ORG could be restricted in a NORP society for the purposes of the protection of individual rights such as dignity or personal rights within the meaning of LAW and in compliance with the principle of proportionality enshrined in LAW . Where the exercise of the freedom of expression collided with the protection of the reputations of individuals , such a conflict had to be resolved with due regard being had to the case - law of ORG .","The court noted that the applicant \u2019s article published on DATE concerned the conduct of a criminal case generating considerable interest among the general public . However , that did not imply that an interference with the claimant \u2019s personal rights had been necessary . Judicial reporting had to be objective and strict priority had to be given to information , with due regard to the facts recorded by way of court records , which could be considered reliable ; not to the reporter \u2019s opinions and views . In the light of this principle , nothing justified the title \u201c A Lawyer \u2019s Nonchalance ? \u201d , referring to the lawyer who had been named in the article . Moreover , the text had contained untrue information to the effect that the court had made clear its intention to complain about the lawyer \u2019s conduct to ORG . It had not been shown that the court had indeed made such a declaration or even suggested that it intended to do so . The ORG s intention to annoy the claimant and to undermine his professional reputation and integrity for the purposes of making the text more attractive or sensational could not be open to any doubt .","On DATE ORG refused to entertain the applicant \u2019s cassation appeal .","Article CARDINAL of the LAW provides :","\u201c CARDINAL . Freedom to express opinions , and to acquire and disseminate information shall be ensured to everyone .","Preventive censorship of means of social communication and licensing of the press shall be prohibited . \u201d","The relevant provisions concerning the correction of information in the press and other media are contained in LAW ( Prawo prasowe ) of DATE .","Section CARDINAL provides , in so far as relevant , as follows :","\u201c At the request of a natural or legal person or other organisational entity , the editor - in - chief of the relevant DATE or magazine is under an obligation to publish , free of charge :","a factually based ( rzeczowe i odnosz\u0105ce si\u0119 do fakt\u00f3w ) rectification of untrue or inaccurate statements ,","a factually based ( rzeczow\u0105 ) reply to any statement which might infringe an individual \u2019s personal rights \u201d","DATE the Civil Code contains a non - exhaustive list of the rights known as \u201c personal rights \u201d ( dobra osobiste ) . This provision states :","\u201c The personal rights of an individual , such as , in particular , health , liberty , reputation ( cze\u015b\u0107 ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . \u201d","Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . Under that provision , a person facing a risk of an infringement of his or her rights may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or claim just satisfaction from him \/ her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .","Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :","\u201c The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) caused to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["10"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-107125","languageisocode":"ENG","respondent":"SWE","branch":"CHAMBER","date":2011,"docname":"CASE OF SAMINA v. SWEDEN","importance":4,"conclusion":"No violation of Art. 3 (in case of extradition to Pakistan)","judges":"Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lef\u00e8vre;Karel Jungwiert;Mark Villiger","text":["The applicant was born in DATE and currently lives in GPE .","On DATE , at DATE , she arrived in GPE . The following day she applied to ORG ( Migrationsverket ) for asylum and a residence permit .","On DATE counsel was appointed for the applicant , who in a communication of CARDINAL DATE and during an interview on DATE held by ORG , stated her reasons for requesting asylum as follows . The applicant was born and raised in GPE in a family which had been NORP for several generations . She had a university degree and had taught GPE in a secondary school in GPE from DATE until she left the country . She was married , but had been separated from her husband since DATE . Her parents and CARDINAL of her siblings remained in GPE . In DATE she had become active in a NORP organisation called ORG , ORG ( NORP JPIC ) . She had worked as a volunteer in her free time and the purpose of the NORP JPIC had been to create understanding between NORP and NORP and to carry out charity work on a local level . She had , inter alia , helped women in vulnerable situations . In DATE she and some of the members of the organisation had been threatened and harassed through letters and text messages to their mobile phones . She was convinced that religious fundamentalists were responsible for the threats because they wrongly believed that the NORP JPIC tried to convert NORP to ORG . Her father had destroyed the CARDINAL or CARDINAL letters which had come to their home and she had only read CARDINAL of them . She had read CARDINAL text messages , thereafter she disposed of her ORG card . In TIME CARDINAL DATE , following TIME mass , she had been travelling on the organisation \u2019s minibus with the President , Vice - President and CARDINAL other members when they had been stopped by CARDINAL fundamentalists on motorbikes . She seemed to remember that the minibus had a red cross on the roof . The assailants had used cricket bats to try to break the windows of the minibus and had accused the group of blasphemy against ORG . The driver had succeeded in driving away from the assailants . The President of the organisation had reported the assault to the police . Thereafter , the applicant lived with her aunt in another town until she left GPE on DATE .","Following the applicant \u2019s arrival in GPE , she was informed by her father that she had been formally accused of blasphemy and that an arrest warrant had been issued against her . Her father sent her a copy of the arrest warrant and of a police report , but she did not know how her father had obtained them or where the originals were . She believed that the arrest order had only been shown to her father . Later , he also sent her a copy of a summons , but she was not sure whether it was an arrest warrant or a summons ; she would have to verify that with her father . The said documents could be described as follows :","\u201c CARDINAL . A copy of poor quality of a document in GPE which was not translated . According to the applicant , the translation was the \u201c ORG \u201d ( FIR ) lodged by CARDINAL named persons at a GPE police station on DATE . It was registered as ORG . CARDINAL\/CARDINAL and contained accusations against the applicant and CARDINAL other members of the NORP JPIC of having violated Articles CARDINAL(b ) and CARDINAL ) of LAW . The document stated that the person who lodged the report attacked and assaulted the applicant and CARDINAL others and tried to kill them . It further stated that the attackers searched for the applicant in her home with the intention of killing her .","A copy of a document in LANGUAGE , stating \u201c the summons \/ warrant noted on the margin is forwarded herewith for service \u201d . The names of the applicant and QUANTITY other persons were inserted in handwriting as was case no . \u201c CARDINAL\/CARDINAL \u201d , \u201c FIR no . CARDINAL \u201d and ORG \u201c CARDINAL ( b ) and CARDINAL ) \u201d of LAW . It was allegedly issued by ORG Judicial LOC and directed to FAC \u201c FAC NORP \u201d ( inserted in hand writing ) in GPE . It stated : \u201c You are hereby directed to depute some responsible officer not less then the rank of ORG for the service and also direct him to present in person along with process and report on DATE ( the date in handwriting ) at TIME without fail . \u201d It was signed and stamped .","A copy of an alleged warrant for arrest in LANGUAGE . The document contained very few lines typed with an old type writer , for example \u201c you are herewith directed to arrest the said ... and to produce him befo(deleted ) . GPE fail not . \u201d The main parts were inserted in hand writing such as FIR no . CARDINAL , case no . CARDINAL\/CARDINAL , the court as above , the same Articles of the Penal Code as above , and the names of the applicant and the same other QUANTITY persons as the above , and the dates . Allegedly the police were asked to arrest them before DATE and the warrant was signed and stamped on DATE . \u201d","The applicant also submitted :","\u201c CARDINAL . A copy of a certificate written by the President of ORG , dated DATE , in which he certified that the applicant was an acting member of the NORP JPIC GPE and that she had visited him to ask for help because she felt threatened by religious fundamentalists . She and her colleagues had reported this to the police and the President had also looked into her claims together with his team and had found that the applicant \u2019s life was endangered by religious fundamentalists . He considered that the applicant was in need of complete protection .","A copy of a certificate dated DATE by the Director of the NORP Justice , FAC and ORG , Custody of GPE the GPE , GPE . The Director certified that the applicant had been an active member of the organisation since DATE and that she had voluntarily devoted her time to the organisation . The organisation worked for peace and justice and to bring harmony through interfaith dialogue in order to allow different religions to understand each other . They also assisted poor people , in particular women . It was further stated that the applicant and other members of the organisation had received life - threatening calls , letters and text messages . CARDINAL times , unknown persons had thrown stones at them . NORP extremists wanted to kill them and their families because the extremists mistakenly believe that the organisation wants to convert NORP to ORG . The last threatening letter had stated that the members of the NORP JPIC were \u201c kafar \u201d and that the authors had commenced \u201c jihad \u201d against them and would kill them . They also threatened to have them punished through the blasphemy laws . The organisation had reported this to the police but without results so they had stopped their activities . The Director requested that the applicant be granted asylum in order to save her life .","A copy of a letter very similar to the CARDINAL above but written by the President of the NORP JPIC , dated DATE . \u201d","On DATE ORG rejected the application . It first noted that neither the general situation in GPE nor the general situation for NORP in GPE were such as to justify granting the applicant protection in GPE . As concerned her personal grounds , ORG considered that the certificates from the NORP JPIC did not substantiate that she had been the victim of threats and harassment . Moreover , the arrest warrant did not state expressly why she was sought by the authorities . Hence , even if the documents were real , they did not show that she would risk being punished for blasphemy in a discriminatory manner . The ORG further questioned whether the police report was genuine as the applicant had handed it in to ORG after she had submitted the arrest warrant . It also found it unlikely that persons would admit to crimes in a report to the police giving their names and details , since making threats and assaulting someone were also crimes in GPE . Lastly , it found it remarkable that the applicant could not explain how her father had obtained the documents . Hence , the documents did not substantiate the applicant \u2019s story . Turning to her credibility , ORG considered that the applicant had given a rather vague and unclear account . She had also altered some of her statements and , in large parts , her story was based on information from her father , as he had read and destroyed the letters and obtained the documents concerning blasphemy . Furthermore , the applicant had not been able to explain why she had been of particular interest to the fundamentalists as opposed to the others who had been prominent members of the organisation . Her explanation , that she had been very active as a volunteer and thus visible , was not convincing to ORG . In any event , the acts of which she had been the victim were criminal acts and for the NORP authorities to deal with . Although some discrimination existed in NORP society , it was not so flagrant that it could be said that the authorities lacked ability or willingness to protect its citizens . In this respect , the ORG observed that the applicant had not reported any of the threats , and that her family had not tried to find out the details about why the police were looking for her . It did not consider that the applicant faced a real and concrete risk of being punished for blasphemy . Furthermore , it noted that the applicant had an aunt in another city and that , since the NORP JPIC according to the applicant was a very small and local organisation , she should be able to avoid problems by settling in the same city as her aunt . Consequently , the ORG concluded that the applicant was not in need of protection in GPE .","NORP The applicant appealed to ORG ( Migrationsdomstolen ) and requested a change of lawyer . She alleged that her sister had been kidnapped and her parents had disappeared . She further alleged that she could not live with her aunt , as her cousin had abused her while she had been staying with them in DATE . She pointed out that the warrant of arrest did state why she was sought by the authorities in that it made reference to LAW which concerned defiling and similar of the Holy Koran and could lead to imprisonment for life . Reference had also been made to LAW , which concerned the use of derogatory remarks and similar in respect of ORG and could lead to the death sentence . Furthermore , she had received CARDINAL leaflets from a friend in GPE showing that fatwas had been issued against her and her colleagues in the NORP JPIC . Also , it was clear that the applicant , as a NORP and as a woman , could not count on the protection of the police . Instead , going to a police station where there were only NORP men would put her at further risk of abuse . Furthermore , the organisation had reported the threats to the police and the other members at risk had also fled the country . Lastly , she stated that she was in very poor mental health following the disappearance of her family , which she considered to be her fault .","She submitted , inter alia , the following documents :","\u201c CARDINAL . A copy of a letter dated DATE sent by the applicant to the President of ORG informing him , inter alia , that the organisation had received threatening letters and that CARDINAL times unknown persons had thrown stones at them .","A copy of a letter by the President of ORG in GPE , dated DATE , and addressed to the Inspector General of Police in GPE . It referred to a letter from the applicant as \u201c acting member , NORP JPIC GPE , \u201d which the President had received and which he enclosed ( it referred to the threats made by extremists against the applicant and other members of the NORP JPIC ) . The President was asking the Inspector General to take the necessary legal action in order to protect the life of the applicant and her colleagues .","A copy of a handwritten letter from the NORP JPIC to ORG in GPE in which they reported that they had been attacked , when travelling on their bus , by a group of unknown men who had thrown stones at them . The letter was stamped as received at FAC on DATE .","A CARDINAL - page leaflet in LANGUAGE which , allegedly , was a fatwa issued by PERSON and in which the applicant and the other named members of the NORP JPIC were accused of having insulted Allah and the Prophet . They should therefore be killed in Jihad and the person who carried out this deed would be allowed into heaven . He requested all NORP to join in this work of justice .","A CARDINAL - page leaflet in LANGUAGE which , allegedly , described how NORP were insulted by other religions and stated that the applicant and other named members of the NORP JPIC had insulted the Koran and the PERSON . It requested ORG to arrest the guilty parties immediately and to hang them . If not , it was all ORG duty to participate in Jihad against the infidels and to kill them .","A medical certificate by a physician in psychiatry dated DATE , which stated that the applicant had been treated at the clinic CARDINAL DATE for suicidal thoughts . According to the physician the applicant was suffering from serious depression and ORG ( PTSD ) , In particular , the applicant was worried about returning to GPE and her relatives in GPE . Some family members had fallen ill and her sister had been kidnapped .","A medical certificate , dated DATE , written by the same doctor as above . It stated that the applicant had been in treatment since DATE . She had been committed to a closed psychiatric unit DATE because she had collapsed and had suffered from a serious mental disorder , including suicidal thoughts and depression . Due to her severe depression she had been treated with ECT ( electric shocks ) . Since then she had been taking antidepressants and seeing a doctor DATE . In DATE she had been found still to be suffering from severe depression and she claimed to hear voices from her family and sometimes to see them in front of her . \u201d","On DATE the applicant \u2019s request for a change of counsel was rejected by ORG , notably because the case was almost ready for judgment and the acknowledged differences between counsel and the applicant could not justify a change of counsel . Leave to appeal against that decision was refused by ORG ( Migrations\u00f6verdomstolen ) on DATE .","On DATE ORG held an oral hearing during which the applicant was heard . Her appointed counsel was present , as well as an adviser . The applicant maintained that her parents had disappeared DATE after they had reported the kidnapping of her sister to the police . When the applicant had learned what had happened to her family , she was admitted to hospital .","By judgment of DATE ORG found against the applicant . From the outset it considered that the written evidence submitted in the case was of low evidential value as the copies were of very poor quality and unclear . The leaflets allegedly containing fatwas issued against the applicant , for example , which were shown to the court in originals ( documents nos . CARDINAL and DATE ) , could easily be produced and did not have much weight as evidence . Moreover , the applicant had not known how her father had obtained the alleged arrest warrant or the police report ( FIR ) . As concerned the applicant \u2019s credibility in general , the court found that her story had been vague and uncertain , in particular in respect of the content of the threats . She had claimed that her father had protected her from most of the threats arriving at the home by letter and telephone and , hence , she could not account for their content . She had also claimed that she did not know the identity of those who had threatened her . In the court \u2019s view , however , this was rather contradictory since these persons allegedly had stated their names in the FIR . It thus appeared odd that they would have made anonymous threats . Furthermore , in the ORG the persons had written that they had sought the applicant at her home with the purpose of killing her . However , the applicant had not mentioned this at all . Also , the court considered that the threat against the applicant appeared disproportionate having regard to the fact that she had not been a member of the organisation , just a volunteer , and that she had not held any prominent or official role . Allegedly , the organisation was very small and worked only locally . As concerned the applicant \u2019s family in GPE , the court noted that it was very unclear what had happened to them . In any event , it had not been substantiated that their alleged disappearance had anything to do with the threats against the applicant . Lastly , it considered that the applicant was suffering from poor mental health but that this was not life - threatening or so serious that it could justify the granting of asylum in GPE .","The applicant appealed to ORG , relying on the same grounds as previously . She added that the President of the NORP JPIC had been granted asylum in GPE and that the Vice - President had been granted asylum in GPE . She submitted :","\u201c CARDINAL . A medical certificate dated DATE issued by the physician in psychiatry mentioned in documents CARDINAL and CARDINAL . He stated that the applicant was still under treatment at the out - patient psychiatric unit and that she was suffering from an acute crisis reaction and a severely depressive period . He concluded that the applicant \u2019s mental state of health was fairly bad and that the risk for suicide was probably high . \u201d","Anew the applicant requested a change of counsel , which was refused by ORG on DATE .","On DATE ORG refused leave to appeal on the merits .","On DATE , upon request by the applicant , the ORG applied Rule CARDINAL of ORG until further notice .","NORP Before the Court the applicant submitted :","\u201c CARDINAL . A letter from ORG . PERSON , Bishop of GPE , dated DATE , stating that the ORG had made enquiries about the applicant \u2019s family but that all of them had been missing since DATE of DATE . They were not at their home address and the local police had refused to cooperate in finding them . \u201d","The Government requested assistance from ORG in GPE , which in return requested assistance from , inter alia , ORG in GPE in order to verify the authenticity of some of the documents submitted by the applicant . As to the copy of the FIR no . CARDINAL\/CARDINAL ( document no . CARDINAL ) , an officer from ORG visited the police station in GPE in GPE . Without supplying background information , the police registrar at the above police station was asked to show FIR no . CARDINAL\/CARDINAL , which he did . It related to a theft from a computer shop lodged at the police station on DATE under LAW and CARDINAL .","The registrar of the police station provided a copy of a stamped FIR CARDINAL\/CARDINAL in GPE . It was translated as follows :","\u201c CARDINAL . FIR no . CARDINAL\/CARDINAL was the first information report regarding a crime and included a signed statement by the person reporting it to the police . The report was issued at the LOC police station , district FAC NORP Town . The person reporting to the police , Mr. PERSON , reported on DATE , an armed robbery committed by CARDINAL unknown persons . The robbery had occurred DATE at ORG , where Mr. PERSON worked . The thieves stole mobile phones and cash from people at the centre . They also stole a car which was parked outside the centre . The report is signed by the policeman who issued the report . Legal reference of the crime is made to rule CARDINAL of the Pakistani Constitution . \u201d","NORP The office of the Judicial Magistrate PERSON was also visited for the purpose of verification of the alleged summons and the arrest warrant ( documents nos . CARDINAL and CARDINAL ) . The total number of cases registered with the office for DATE was CARDINAL . Case number CARDINAL\/CARDINAL does therefore not exist and there are no records at ORG PERSON of the summons or of the arrest warrant . Furthermore , no arrest warrant was issued by the office in the name of the applicant and others on DATE .","The Office of the Judicial Magistrate PERSON stated that the text on the copied stamps on the CARDINAL documents ( documents FAC . CARDINAL and CARDINAL ) was false . The text of the genuine , round stamps should read \u201c ORG \/ Judge Judicial Magistrate - XII GPE - East \u201d , whereas the round stamp seen on the alleged summons and arrest warrant reads \u201c Court of XII . Judicial Magistrate First Class GPE \u201d . As regards the second stamp on the alleged arrest warrant , the text of the genuine stamp underneath the initials of the magistrate should read \u201c Civil Judge , Judicial Magistrate PERSON , GPE - East \u201d , whereas the stamp on the alleged warrant read \u201c Judicial Magistrate First Class Court No . ORG , GPE \u201d . Finally , ORG PERSON stated that the signature on the documents was not recognised .","The address provided by the applicant in her asylum application as being her home address , where she had lived with her parents until shortly before leaving GPE , was also visited by a contact person from ORG . The family still resided there and there was no indication that they had disappeared .","The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utl\u00e4nningslagen , DATE hereafter referred to as \u201c the Aliens Act \u201d ) , as amended on DATE and described inter alia in GPE v. GPE , no . CARDINAL , \u00a7 DATE , DATE .","ORG \u201c DATE ORG : GPE \u201d , of DATE , stated among other things :","\u201c Arrest Procedures and Treatment While in Detention","A ORG ( FIR ) is the legal basis for any arrest . Police may initiate FIRs when complainants offer reasonable proof a crime was committed . A ORG allows police to detain a named suspect for TIME , after which only a magistrate can order detention for DATE , if police show such detention is material to the investigation . In practice authorities did not observe fully these limits on detention . Authorities frequently issued FIRs without supporting evidence to harass or intimidate detainees , or did not issue them when adequate evidence was provided unless the complainant paid a bribe . Police sometimes detained individuals arbitrarily without charge or on false charges to extort payment for their release . Police also detained relatives of wanted individuals to compel suspects to surrender .","...","Freedom of Religion","The constitution states that adequate provisions shall be made for minorities to profess and practise their religions freely , but the Government limited freedom of religion in practice . ORG is the state religion , and the constitution requires that laws be consistent with ORG . The ORG court ensures that laws are consistent with Shari\u2019a . All citizens are subject to the blasphemy laws . Freedom of speech is constitutionally subject to \u201c any reasonable restrictions imposed by law in the interest of the glory of NORP \u201d .","According to the ORG ( ORG of GPE ) there was an increase in cases of violence against minorities during DATE . Reprisals and threats of reprisals against suspected converts from ORG occurred . Members of religious minorities were subject to violence and harassment , and at times police refused to prevent such actions or charge persons who committed them , leading to an atmosphere of impunity . The constitution stipulates that the president and the prime minister must be NORP . The prime minister , federal ministers , and ministers of state , as well as elected members of the ORG and ORG ( including non - NORP ) , must take an oath to \u201c strive to preserve the NORP ideology \u201d , the basis for the creation of the country . Religious groups must be approved and registered ; there were no reports that the government refused to register any group .","...","The penal code calls for the death sentence or life imprisonment for anyone who blasphemes the Prophet PERSON . The law provides for life imprisonment for desecrating the Koran and DATE in prison for insulting another \u2019s religious beliefs with the intent to offend religious feelings . The latter penalty was used only against those who allegedly insulted the Prophet PERSON .","On DATE ] , police arrested PERSON , the country director of a NORP human rights ORG , after a member of a militant NORP organization accused him of sending a blasphemous text message from his cell phone . Although the blasphemy charges were dropped after evidence showed the text message was not sent from PERSON \u2019s cell phone , the charges of abetting blasphemy stood . A judge denied bail on DATE and remanded PERSON in custody \u201c for his own protection \u201d after a religious extremist lawyer threatened his life in a court hearing ... At DATE , PERSON remained in jail awaiting trial on charges of abetting blasphemy .","...","On DATE ] , a local court acquitted and freed PERSON and his daughter , PERSON . They had been detained in DATE in GPE after the father was accused of desecrating the Koran . ... \u201d","The Country of Origin Information ( COI ) Report produced by ORG on DATE stated among other things :","\u201c CARDINAL . FREEDOM OF RELIGION","...","CARDINAL The ORG IRF Report DATE ( ORG DATE ) observed that :","PERCENT of the population is NORP ( PERCENT NORP , CARDINAL percent NORP ) . ORG composing PERCENT of the population or less include NORP , NORP , GPE \/ NORP , ORG , NORP , NORP , NORP , and others ...","CARDINAL NORP The ORG ( ORG ) Report DATE stated that \u201c The State of GPE is failing at all levels to address the problem of malicious complaints of violations of the blasphemy law being pursued against NORP and NORP , as well as members of other religious communities .","...","CARDINAL The HRCP Report DATE noted that \u201c In DATE , a total of CARDINAL complaints of blasphemy were registered by the police . Some CARDINAL Ahmedis were booked under blasphemy laws and CARDINAL LOC were charged under GPE - specific laws . However , many cases were registered against NORP as the rival sects of ORG increasingly used the blasphemy law against each other ... ORG gave a number of accounts of blasphemy cases filed during DATE .","CARDINAL The ORG special report Policing Belief : ORG , published DATE , noted that \u201c According to data compiled by nongovernmental organizations ( NGOs ) and cited by ORG , a total of CARDINAL people were accused of blasphemy in GPE DATE . Of those , CARDINAL were NORP , CARDINAL were NORP , DATE were NORP , and CARDINAL were NORP . The NORP DATE newspaper PERSON has reported that CARDINAL cases were registered DATE , and CARDINAL people were charged with blasphemy .","CARDINAL The PERSON ( ORG ) Report DATE provided slightly different data and noted that \u201c According to data collected by ORG and Peace ( NCJP ) , CARDINAL persons were alleged under these anti - blasphemy clauses from DATE to DATE , while CARDINAL persons were killed extra - judicially by the angry mob or by individuals .","CARDINAL According to ORG and Peace ( NCJP ) , CARDINAL cases were registered under the blasphemy laws during DATE . \u201c Of the CARDINAL persons , CARDINAL were identified as NORP , NORP , and CARDINAL NORP . A total of CARDINAL persons have been charged under the blasphemy laws DATE . ... \u201d","As to mental health , the ORG report went on :","\u201c CARDINAL The ORG Report DATE recorded that \u201c According to an expert every fifth person in the country suffers from some kind of psychological disease . The most common form of mental ailment is depression . Social behaviour creates hurdles in curing psychological diseases because people generally shy away from consulting doctors lest they attract stigma . There are CARDINAL qualified psychologists to handle the rapidly growing number of psychiatric cases in the country .","CARDINAL ORG Mental Health DATE for GPE stated that :","The primary sources of mental health financing in descending order are : out of pocket expenditure by the patient or family , tax based , social insurance and private insurances . The country has disability benefits for persons with mental disorders . Disability benefit is paid to individuals who are not able to work due to mental illness . Mental health is a part of primary health care system . Actual treatment of severe mental disorders is available at the primary level . The programme has initially started in GPE , the largest province , in DATE and is being extended to others over DATE . There are many residential and day - care facilities , especially for people with learning disabilities providing social , vocational and educational activities . Regular training of primary care professionals is carried out in the field of mental health . Training programmes have started in the province of GPE as a part of in - service training for primary care personnel . Till now , CARDINAL primary care physicians and QUANTITY primary care workers have been trained . Community activists from NGOs ( e.g. ORG ( NRSP ) are also being trained . Though there are training programmes for physicians , nurses and psychologists , there are no such facilities for social workers . Mental health training has been included in the programme of ORG .","ORG , ORG , was the first ORG collaborating PERSON and is acting as a resource centre at national and regional level for training , services information system and research . Multiple training manuals for primary health care physicians , paramedics , community workers and teachers have been developed . In an additional training package on counselling skills for health professionals , a package for rehabilitation of mentally ill has been developed ... There are community care facilities for patients with mental disorders . .. More than CARDINAL junior psychiatrists have been trained in community mental health to act as resource persons in the development of programmes in their areas . ORG evaluates the quality of care delivery on a regular basis .","...","CARDINAL ORG listed the following therapeutic drugs as generally being available at the primary health care level of the country : carbamazepine , phenobarbital , chlorpromazine , diazepam , haloperidol ; imipramine ( is supplied instead of amitriptylline ) ; and procyclidine . \u201d"],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["3"],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-114486","languageisocode":"ENG","respondent":"FIN","branch":"CHAMBER","date":2012,"docname":"CASE OF H. v. FINLAND","importance":3,"conclusion":"Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life)","judges":"George Nicolaou;Lech Garlicki;Ledi Bianku;Neboj\u0161a Vu\u010dini\u0107;P\u00e4ivi Hirvel\u00e4;Vincent A. De Gaetano;Zdravka Kalaydjieva","text":["The applicant was born in DATE and lives in GPE .","The applicant was born male . She always felt that she was a female in a male body but decided to cope with the situation . In DATE she married a woman and in DATE they had a child .","The applicant started feeling worse in DATE , and decided in DATE to seek medical help . In DATE she was diagnosed as transgender . Since that time , she has lived as a woman . On DATE she underwent gender re - assignment surgery .","On DATE the applicant changed her first names and renewed her passport and driver \u2019s licence but she could not have her identity number changed . The identity number still indicates that she is male , as does her passport .","On DATE the applicant requested the local ORG ( maistraatti , magistraten ) to confirm her as being female and to change her male identity number to a female one as it no longer corresponded to reality .","On DATE the local ORG refused the applicant \u2019s request . It found that , according to sections CARDINAL and CARDINAL of the Act on Confirmation of ORG ( laki transseksuaalin sukupuolen vahvistamisesta , lagen om fastst\u00e4llande av transsexuella personers k\u00f6nstillh\u00f6righet ) , the confirmation required that the person was not married or that the spouse gave his or her consent . As the applicant \u2019s wife did not give her consent to the transformation of their marriage into a civil partnership ( rekister\u00f6ity parisuhde , registrerat partnerskap ) , the applicant \u2019s new gender could not be introduced in the population register .","On DATE the applicant appealed to ORG ( hallinto - oikeus , f\u00f6rvaltningsdomstolen ) complaining , inter alia , that her wife \u2019s decision not to give consent , to which she was perfectly entitled as they both preferred to remain married , meant that the applicant could not be registered as a female . A divorce would be against their religious convictions . A civil partnership did not provide the same security as a marriage and this would mean , among other things , that their child would be put into a different situation vis - \u00e0 - vis children born within wedlock .","On DATE ORG rejected the applicant \u2019s appeal on the same grounds as the local ORG . Moreover it found , inter alia , that the impugned decision of DATE was not contrary to LAW as same - sex partners had a possibility , by registering their relationship , to benefit from family law protection in a manner partially comparable to a marriage . Similarly , Sections CARDINAL and QUANTITY of the Act on Confirmation of ORG did not violate the constitutional rights of the applicant \u2019s child .","On DATE the applicant appealed to ORG ( korkein hallinto - oikeus , h\u00f6gsta f\u00f6rvaltnings - domstolen ) , reiterating the grounds presented before the local ORG and ORG . She also asked the court to make a request for a preliminary ruling to ORG of ORG , in particular on the interpretation of LAW . Referring to Articles CARDINAL and CARDINAL of the LAW , the applicant claimed that the ORG should not tell her that a civil partnership was appropriate for her , especially when it required that her wife become a lesbian . Their sexual identity was a private matter which could not be a condition for the confirmation of gender . Transgenderism was a medical condition falling within the scope of private life . The ORG was violating her right to privacy every time the male identity number revealed her to be transgender . Moreover , she claimed that if her marriage were turned into a civil partnership , it would mean that she could no longer be a legal father to her child nor his mother , as a child could not have CARDINAL mothers .","On DATE ORG refused the applicant \u2019s request for a preliminary ruling and rejected her appeal . It found that by adopting the LAW on Confirmation of the Gender of a Transsexual the legislator did not mean to change the fact that only a man and a woman could marry and that same - sex partners could have their relationship judicially confirmed by registering it . ORG had found under LAW that there were no acceptable grounds to deny transgender persons their right to marry but that the margin of appreciation in this respect was large . It was not possible under NORP law for persons of the same sex to marry but , in such a case , it was a question of a civil partnership . As to its juridical and economic consequences , a civil partnership was essentially comparable to a marriage . The question of transforming the marriage institution into a gender - neutral one was connected to significant ethical and religious values and it was to be solved by an act enacted by ORG . The current state of law was within the margin of appreciation given to the ORG by ORG .","On DATE the applicant lodged an extraordinary appeal with ORG , requesting it to annul its previous decision of DATE . She stated that she had undergone gender reassignment surgery on DATE and that she could no longer prove that she had been male , as indicated by her identity number and passport . Even though , for marriage purposes , she would still be considered as male , the fact remained that she should not be discriminated against due to her gender .","On DATE ORG refused the extraordinary appeal .","On DATE the applicant applied for reimbursement of the costs of some hormonal medicine which was part of her treatment .","On DATE ORG ( Kansanel\u00e4kelaitos , Folkpensionsanstalten ) refused her application as she was deemed to be entitled to the reimbursement only once she had been given a new identity number .","By letter dated CARDINAL DATE the applicant appealed to ORG ( PERSON muutoksenhakulautakunta , GPE f\u00f6r social trygghet ) claiming , inter alia , that she had been discriminated against .","On DATE ORG accepted the applicant \u2019s appeal and changed the decision of CARDINAL DATE by ORG , finding that the applicant was entitled to reimbursement .","As no appeal was made against this decision , it became final .","On an unspecified date the applicant also filed a complaint with ORG ( NORP - arvovaltuutettu , PERSON ) , complaining about the wrong identity number as well as the reimbursement of medical costs .","On DATE the Ombudsman for ORG stated that she could not take a stand on the identity number issue as the matter had already been dealt with by ORG and the ORG was not competent to supervise the courts . Moreover , the matter was pending before ORG . As to the reimbursement of medical costs , the ORG found that the fact that the reimbursement was conditional on the identity number and not on medical grounds placed transgender persons in a different position to other persons receiving the same treatment . She recommended that ORG change its practice in this respect in order to prevent discrimination against transgender persons .","DATE ( Suomen perustuslaki , PERSON grundlag ; Act no . CARDINAL\/CARDINAL ) provides the following :","\u201c Everyone is equal before the law .","No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development .","Equality of the sexes is promoted in societal activity and working life , especially in the determination of pay and the other terms of employment , as provided in more detail by an LAW . \u201d","Section CARDINAL of the Act on Confirmation of the Gender of a Transsexual ( laki transseksuaalin sukupuolen vahvistamisesta , lagen om fastst\u00e4llande av transsexuella personers k\u00f6nstillh\u00f6righet ; Act no . CARDINAL\/CARDINAL ) provides that it shall be established that a person belongs to the opposite gender to the one noted in the population register if he or she :","\u201c CARDINAL ) provides medical clarifications that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role as well as that he or she has been sterilised or is for some other reason incapable of reproducing ;","CARDINAL ) is DATE ;","CARDINAL ) is not married or in a civil partnership ; and","CARDINAL ) is a NORP citizen or has residence in GPE . \u201d","Section CARDINAL of the same LAW provides for exceptions from the marital status requirement . A marriage or a civil partnership does not prevent the confirmation of gender if the spouse or the partner personally gives his or her consent to it before a local ORG . When belonging to the opposite gender is confirmed , a marriage is turned ex lege into a civil partnership and a civil partnership into a marriage . This modification shall be noted in the population register ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":["14","8"],"non_violated_paragraphs":["8-1"],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-75257","languageisocode":"ENG","respondent":"TUR","branch":"ADMISSIBILITY","date":2006,"docname":"DEMIR v. TURKEY","importance":4,"conclusion":"Inadmissible","judges":"","text":["The applicants , PERSON , PERSON , PERSON , PERSON and PERSON , are NORP nationals . They are represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in ORG .","The facts of the case , as submitted by the parties , may be summarised as follows .","Until DATE the applicant lived in GPE , a hamlet of the GPE , in the ORG district of GPE , where he owns property .","In DATE security forces evacuated GPE within the context of military operations in the region . They also destroyed the applicant \u2019s property . The applicant and his family then moved to the NORP village of ORG , where they currently live .","In DATE and DATE the applicant filed petitions with the GPE office in ORG , Governor \u2019s office in GPE , ORG and the Prime Minister \u2019s office requesting compensation and permission to return to his village . It is to be noted that the applicant did not submit any document attesting his petitions to these offices .","On an unknown date the District Governor \u2019s office in ORG sent a letter to the applicant stating that he would be given a compensation of MONEY for his damages . When the applicant applied to the District Governor \u2019s office to receive the compensation in question , the authorities refused his request on account of lack of resources . It is to be noted that the applicant did not submit any document in relation to his request of compensation and the authorities\u2019 reply thereto .","On DATE the applicant filed further petitions with the Prime Minister \u2019s office and the District Governor \u2019s office in ORG requesting information about the proceedings concerning the burning down of his house in DATE and permission to return to his village . He further reiterated his request for compensation for the damages he suffered .","On DATE he received a letter from the Prime Minister \u2019s office informing him that his petition had been referred to ORG .","On DATE the District Governor \u2019s office in ORG sent the following reply to the applicant :","\u201c ...","It was established that you voluntarily left your village following the burning down of your house . Besides , on DATE you received CARDINAL NORP liras accommodation aid from ORG .","... \u201d","Until DATE the applicant lived in PERSON , a village of the GPE district in GPE , where he owns property .","In DATE security forces evacuated PERSON , holding the inhabitants of the village responsible for the disturbances in the region . They also destroyed the applicant \u2019s property . The applicant then moved to ORG , where he currently lives .","In DATE the applicant lodged a petition with ORG office in GPE complaining about the burning down of his house by the security forces . It is to be noted that the applicant did not submit any document attesting his petition with ORG office in GPE .","On unspecified dates the applicant filed several petitions with the District Governor \u2019s office in GPE , Governor \u2019s office in GPE and ORG requesting compensation and permission to return to his village . It is to be noted that the applicant did not submit to ORG a copy of these decisions .","On DATE the GPE office in GPE sent the following letter to the applicant in reply to his last petition :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicant lived in ORG , a hamlet of the GPE , in the NORP district of GPE , where he owns property .","In DATE security forces evacuated ORG within the context of military operations in the region . They also destroyed the applicant \u2019s property . Following the destruction of his property , the applicant moved to Hozat . He then moved to PERSON , where he currently lives .","On DATE the applicant filed petitions with the Prime Minister \u2019s office , ORG and the Governor \u2019s office in GPE requesting compensation for pecuniary and non - pecuniary damages he suffered .","On DATE the GPE office in GPE rejected the applicant \u2019s request , stating that he did not fulfil the conditions required by LAW , no . CARDINAL .","On an unknown date the applicant filed a further petition with the District Governor \u2019s office in GPE requesting information about the proceedings concerning the burning down of his house in DATE and permission to return to his village . He further reiterated his request for compensation for the damages he suffered .","On DATE he received the following reply from the District Governor \u2019s office in GPE :","\u201c ... The Project \u2018 Return to the Village and Rehabilitation in NORP and LOC - eastern ORG was developed by the LOC - eastern ORG ( GAP B\u00f6lge Kalk\u0131nd\u0131rma \u0130daresi Ba\u015fkanl\u0131\u011f\u0131 ) . It aims to provide the re - settlement of any inhabitants who unwillingly left their land due to various reasons , particularly terrorist incidents and who now intend to return to secure collective settlement units , since the number of the terrorist incidents have relatively decreased in the region . The ORG also aims to create sustainable living standards in the re - settlement areas .","It was established that you had not filed a complaint against the perpetrators of the alleged incident .","...","An investigation will be initiated should you request and inform the District Governor \u2019s office about the identities of the perpetrators who are responsible for your eviction from your village . \u201d","Until DATE the applicant lived in GPE , a village of the GPE district , in GPE . It is to be noted that the documents attesting the ownership of the property that the applicant used in \u015eahverdi bear the applicant \u2019s father \u2019s name .","In DATE security forces evacuated \u015eahverdi , holding the inhabitants of the village responsible for the disturbances in the region . They also destroyed the applicant \u2019s property . Following the destruction of his property , the applicant moved to GPE . He then moved to ORG in DATE , where he currently lives .","On DATE the applicant filed a petition with the District Governor \u2019s office in GPE requesting information about the proceedings concerning the burning down of his house in DATE and permission to return to his village .","On DATE the District Governor \u2019s office in GPE sent a letter to the applicant stating that there would not be an investigation into his allegations as it was established that the offence in question had been committed by members of the ORG . He was also informed that his petition would be considered under the \u2018 Return to GPE Project\u2019 .","On an unknown date the applicant filed a further petition with the District Governor \u2019s office in GPE reiterating his request of permission to return to his village .","On DATE ORG of the GPE office in GPE sent the following letter in reply to the applicant :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","Until DATE the applicant lived in PERSON , a village of the GPE district in GPE , where he owns property .","In DATE security forces evacuated PERSON holding the inhabitants of the village responsible for the disturbances in the region . They also destroyed the applicant \u2019s property . The applicant then moved to ORG , where he currently lives .","On DATE the village mayor ( muhtar ) of PERSON , PERSON petitioned the Governor \u2019s office in GPE , ORG , ORG , ORG Presidency , the Prime Minister \u2019s office and the Presidency of the ORG , on behalf of the villagers . He requested compensation for their losses .","On DATE Mr PERSON lodged further petitions with various government offices , namely the Governor \u2019s office in GPE , the Presidency of the ORG , the Prime Minister \u2019s office and the office of the President of the Republic , requesting permission on behalf of the villagers to return to their villages .","On an unknown date the applicant filed a petition with the District Governor \u2019s office in GPE requesting permission to return to his village .","On DATE ORG office in GPE sent the following reply to the applicant :","\u201c Your petition containing a request of permission to return to your village has been received by the District Governor \u2019s office and will be considered under the \u2018 Return to the Village and Rehabilitation Project\u2019 . \u201d","On DATE the applicant lodged a further petition with the District Governor \u2019s office in GPE , requesting compensation for the damages he suffered and permission to return to his village .","The applicant received no response to his last petition .","The investigation carried out by the authorities indicated that the applicants had left their villages on their own will . The security forces had not forced the applicants to leave their village .","The official records indicated that 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 ( \u201c Compensation Law \u201d ) . 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 \u2019s decision of PERSON v. GPE ( no . CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL\/CARDINAL , CARDINAL\/CARDINAL and CARDINAL - CARDINAL\/CARDINAL , \u00a7 \u00a7 DATE , ORG CARDINAL-VI ) ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-5085","languageisocode":"ENG","respondent":"EST","branch":"ADMISSIBILITY","date":2000,"docname":"SVINARENKOV v. ESTONIA","importance":4,"conclusion":"Inadmissible","judges":"Elisabeth Palm;Gaukur J\u00f6rundsson","text":["The applicant is an NORP citizen , born in DATE and currently serving a prison sentence in GPE .","The facts of the case , as submitted by the parties , may be summarised as follows .","A.","On DATE criminal proceedings were instituted against the applicant on the suspicion of his having committed a murder on DATE . On DATE the applicant was taken into custody . On DATE he was formally charged with deliberate homicide and unlawful possession of a firearm . On DATE ORG ( ORG ) , having regard to the nature of the crime committed , the danger of his absconding and the fact that the weapon used in the crime had not been found , ordered the applicant \u2019s remand in custody until DATE . On DATE the applicant \u2019s defence lawyer lodged an appeal against the order with ORG ( GPE ) which dismissed it on CARDINAL DATE . The applicant \u2019s detention on remand was subsequently extended until DATE .","On DATE , apparently on the investigator \u2019s order , the authorities seized from the applicant \u2019s apartment , and in his absence , CARDINAL passports and CARDINAL other items . The applicant claims that the authorities also seized other objects which were not entered in the official records . He further claims that the authorities conducted an undocumented search at his work place .","Upon conclusion of the preliminary investigation the applicant and his defence lawyer were presented with the contents of the case file on DATE .","On DATE the GPE public prosecutor approved the summary of charges against the applicant and transferred the case for examination to ORG where it was registered on DATE . On DATE ORG held a preliminary hearing in which it considered that due to its case load it was not possible to begin the applicant \u2019s trial immediately , and extended the applicant \u2019s detention until DATE .","On DATE ORG held another preliminary hearing in which it committed the applicant for trial and set its date for DATE . It prolonged the applicant \u2019s detention accordingly .","On DATE the applicant complained to ORG that it had violated procedural time - limits under ORG CARDINAL and CARDINAL of the Criminal Procedure Code concerning the start of the trial . He also complained that the authorisation for his detention was renewed DATE after the prior authorisation had expired on DATE .","The formal indictment was served on the applicant on DATE and his trial commenced on DATE . As the applicant considered that his witness GPE , who testified before ORG and was questioned by the parties on DATE , had been subjected to undue influence by unknown persons , he requested ORG on DATE to hear promptly his witnesses NL and VL . ORG postponed the PERSON session until DATE . The applicant \u2019s witness ORG appeared before ORG on DATE where she gave evidence and was questioned by the parties . Her husband VL was also summoned but was not heard . The ORG submit that VL failed to appear in the hearing while the applicant argues that ORG refused to hear VL who was therefore denied entry into the court building . On DATE the defence lawyer requested the confrontation of CARDINAL witnesses GPE and GPE both of whom had been previously heard by ORG . The request was turned down as ORG considered that it possessed sufficient evidence in the case .","On DATE the applicant complained to ORG that the authorities\u2019 actions in his apartment on DATE were unlawful as they had in fact performed a search which required the public prosecutor \u2019s authorisation and that the seizure of objects took place without his presence . The applicant alleges that he also complained to the public prosecutor .","By judgment of ORG DATE the applicant was found guilty of the charges against him and sentenced to CARDINAL years\u2019 imprisonment .","On DATE the applicant complained to the judge of ORG about having had inadequate time to read through TIME of the court sessions and to comment on them . He also pointed to the alleged violation of the procedural rules concerning the timelimits in examining his case .","On DATE the applicant lodged an appeal against ORG judgment disputing the assessment of evidence for his conviction . He further complained about the refusal of ORG to allow the confrontation of the CARDINAL witnesses and stated that ORG had not addressed multiple violations of procedural norms during the pre - trial investigation . In particular , the applicant submitted that it made no mention of his complaint of DATE regarding the search of his apartment and workplace and the seizure of his personal effects . In a hearing on DATE before ORG ( GPE ) the applicant also referred specifically to the interrogation of GPE witnesses without an interpreter and to falsified additions to the records of witness testimonies .","On DATE the applicant requested a new expert opinion on the cartridge cases . ORG granted the request and adjourned its examination of the applicant \u2019s case pending the outcome of the expert opinion .","On DATE the applicant complained to ORG about the discovery of changes in several case file documents , e.g. the crime scene record , which were introduced after the termination of the preliminary investigation without his knowledge . According to his lawyer , the changes were probably made after the judgment of ORG .","By judgment of DATE ORG confirmed the judgment of the first instance court holding it lawful , well - founded and sufficiently motivated . As regards the applicant 's complaint of DATE , the ORG held that the alleged changes in the case file documents would not have influenced ORG judgment as they were introduced only subsequently .","On DATE the applicant lodged an appeal in cassation to ORG ( NORP ) in which he questioned the evaluation of evidence and pointed again to the allegedly unlawful search and seizure and other violations of procedural norms during the pre - trial investigation , including the interrogation of witnesses without an interpreter and the falsification of witness testimonies . He stated that he had received no reaction from either ORG or ORG to his complaints . He further complained about the introduction of later changes in the file documents and the failure of ORG to fully address this issue .","On DATE ORG refused the applicant leave to appeal against ORG judgment . On DATE it allowed , however , the applicant \u2019s appeal for correction of court errors . By judgment of CARDINAL DATE ORG dismissed his application holding the judgments of ORG and ORG lawful and not subject to annulment . It agreed with the analysis of the evidence and the conclusions reached in these judgments and did not find any substantial violations of the criminal procedure law which would have hindered the thorough , complete and objective investigation of the case or prevented the courts from rendering a lawful and substantiated judgment .","B. Relevant domestic law","According to LAW must take a decision to try the accused who is in custody within DATE from the arrival of the case file in the court . Its Article CARDINAL provides that the trial must start DATE from the taking of that decision .","Under LAW CARDINAL of LAW a special appeal on the decisions concerning pre - trial detention and its prolongation can be submitted within DATE to a higher court .","Pursuant to LAW supervision over the following of laws by the organs of preliminary investigation is carried out by the public prosecutor . According to its ORG and CARDINAL complaints regarding the activities of the police investigator are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed to the higher level public prosecutor .","LAW ) of LAW provides that ORG is competent to deal with appeals against the organs of the executive ORG power or the legal acts or action by CARDINAL of its officials .","Article CARDINAL of the Code of Criminal Procedure stipulates that if an investigator has sufficient reason to believe that in a certain room , location or in a person \u2019s possession there might be items of significance to a criminal case he may conduct a search to find them . A search may be conducted on the basis of a decision of an investigator and only upon the authorisation of the public prosecutor or his deputy . If an investigator knows the exact location of an item which is of significance to a criminal case , he may conduct the seizure of that item . A seizure is carried out on the basis of a decision of an investigator .","Under LAW an investigator , in performing a search and a seizure , can take away only those items and documents which are relevant to a criminal case . Each seized item and document must be entered in a protocol indicating their exact amount , format , weight and individual characteristics .","Article CARDINAL of the Code of Criminal Procedure provides that a search and a seizure is conducted in the presence of the person concerned or his adult family member or , if this is not possible , in the presence of a local government representative ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}
{"itemid":"001-88827","languageisocode":"ENG","respondent":"HUN","branch":"ADMISSIBILITY","date":2008,"docname":"JARFAS v. HUNGARY","importance":4,"conclusion":"Inadmissible","judges":"Andr\u00e1s Saj\u00f3;Antonella Mularoni;Fran\u00e7oise Tulkens;Vladimiro Zagrebelsky","text":["The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr ORG , a lawyer practising in GPE . ORG ( \u201c the Government \u201d ) were represented by PERSON , Agent , ORG and Law Enforcement .","The facts of the case , as submitted by the parties , may be summarised as follows .","On DATE the applicant brought an action against his employer before ORG requesting compensation in the amount of MONEY ( ORG ) ( MONEY ( ORG ) ) for non - pecuniary damage and an additional DATE allowance of ORG CARDINAL ( approximately EUR CARDINAL ) for pecuniary damage . ORG transferred the case to ORG , because in the meantime the defendant company had gone into liquidation and ORG was the competent authority to deal with the issue . The initial date of the liquidation procedure was DATE .","On DATE ORG , after having held CARDINAL hearings and obtained the opinion of a forensic medical expert , dismissed the applicant 's claims . On appeal , ORG , acting as a second - instance court , quashed the first - instance decision and remitted the case to ORG on DATE .","Subsequently , the applicant raised his claims again . After having held QUANTITY hearings , ORG delivered a decision on DATE . It partly found for the applicant and ruled that ORG CARDINAL,CARDINAL,CARDINAL ( approximately ORG MONEY ) , and an additional HUF CARDINAL ( approximately EUR CARDINAL ) had to be registered on the applicant 's behalf as a creditor 's claim ( hitelez\u0151i ig\u00e9ny ) in the liquidation procedure . On appeal , ORG , acting as a second - instance court , upheld this decision on DATE .","On DATE the applicant lodged a petition for review with ORG .","ORG returned the applicant 's motion for completion , observing that it did not meet the minimum requirements of a petition for review in that it failed to indicate a relevant breach of law or contain a clear request to have the final decision changed . It required the applicant to resubmit an amended petition in order that an examination of at least the admissibility thereof could be carried out . However , the applicant failed to comply with ORG supplementation order .","On DATE ORG dismissed the applicant 's petition for review as inadmissible , since it was incomplete . The applicant lodged a complaint against this decision .","On DATE ORG dismissed the applicant 's complaint as incompatible ratione materiae with the relevant provisions of LAW . It pointed out that , in accordance with those provisions , no appeal whatsoever lay against inadmissibility decisions of ORG .","In DATE the debtor began to transfer the sum awarded into the applicant 's bank account in instalments . The last instalment was paid in DATE ."],"violated_articles":[],"violated_paragraphs":[],"violated_bulletpoints":[],"non_violated_articles":[],"non_violated_paragraphs":[],"non_violated_bulletpoints":[],"violated":false}